Ho v. Pinsukanjana, et al.

Filing 90

Discovery Order. Signed by Judge Thomas S. Hixson on 2/20/2019. (tshlc2S, COURT STAFF) (Filed on 2/20/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RITA C. HO,
Plaintiff,

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v.

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MARK PINSUKANJANA, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 17-cv-06520-PJH (TSH)
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
COMPEL
Re: Dkt. Nos. 83, 86

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The parties submitted a joint letter brief, in which Plaintiff Rita C. Ho moves to compel the

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production of documents in response to her January 18, 2018 first sets of requests for production

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to Defendants Mark Pinsukanjana and Bryan Yedinak. ECF No. 83.1 The requests to

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Pinsukanjana and Yedinak are identical, so the Court will refer to them together as the “RFPs” for

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ease of reference. The Court held a telephonic hearing in this matter on February 20, 2019, and

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now issues this order.

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The Court ORDERS Defendants to produce documents responsive to RFPs 1, 3-10, 12-16,

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18-23 and 25. These RFPs seek relevant documents, and the requests are proportional to the needs

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of the case. Defendants’ objections are unpersuasive.
RFP 2 asks for “[c]opies of all documents and materials provided to any person whom the

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Defendants intend to use as an expert witness in this action including, but not limited to,

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documents and materials relied upon by that person in formulating his or her expert opinion.”

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Leaving aside RFP 2 for the moment, Federal Rule of Civil Procedure 26(a)(2) has disclosure

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requirements for testifying experts, and Defendants must comply with those requirements by the

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The letter brief did not provide the discovery requests or responses, so per the Court’s order,
ECF No. 84, the parties filed a supplemental submission providing those. ECF No. 86.
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applicable deadlines. RFP 2 is problematic, however, because it seeks to use fact discovery to

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take expert discovery, and the fact discovery cutoff in this action is earlier than the expert

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discovery cutoff. See ECF No. 66 (case scheduling order). Accordingly, the Court DENIES the

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motion to compel as to RFP 2. To avoid confusion, nothing in this order relieves Defendants of

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their expert disclosure obligations under Rule 26.

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At the telephonic hearing, Plaintiff withdrew RFP 11, rendering that dispute moot.

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RFP 17 asks for “[d]ocuments regarding any legal proceedings involving the Defendants,

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from January 1, 2008 to the present.” At the hearing Plaintiff explained that if Defendants have

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cheated other artists, that could potentially show they are the type of people who engage in
cheating, making Plaintiff’s claims more plausible. Perhaps, but that is a speculative fishing

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United States District Court
Northern District of California

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expedition that is not proportional to the needs of the case. The Court DENIES the motion to

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compel as to RFP 17.

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RFP 24 seeks “[d]ocuments supporting Defendants’ allegations in the Cross-Claim filed in

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the Probate Action.” The RFPs define the Probate Action to mean “the action between the parties

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to the instant proceeding first brought in the Superior Court for the State of California and County

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of Santa Cruz.” The Court has no further information about the Probate Action, including what

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the Cross-Claim is. At the telephonic hearing, Plaintiff’s counsel stated he was not prepared to

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address this RFP in any detail. As Plaintiff has failed to explain the relevance and proportionality

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of this RFP, the Court DENIES the motion to compel as to it.

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During the hearing the Court and the parties discussed the relevant time frame for the

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requests. The Court has previously explained that the parties’ pleadings show that the claims and

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counterclaims relate to conduct from 2012 to the present. See ECF No. 78 at 2-3. Plaintiff

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argued, however, that even for conduct 2012 to the present, Defendants contend they have co-

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authorship rights in some of the images at issue stemming from a monograph first published in

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2006. Defendants did not argue to the contrary. Accordingly, for RFPs 3 and 16, the Court

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ORDERS Defendants to produce responsive documents from 2006 to the present. For RFP 25 –

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which seeks “all documents upon which Defendants intend to rely relating to this action

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proceeding to trial” – the Court ORDRS Defendants to produce all responsive documents
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regardless of time frame, since if Defendants are going to use a document at trial, Plaintiff is

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entitled to it. For RFPs 1, 4-10, 12-15, and 18-23, the Court ORDERS Defendants to produce

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responsive documents for the time period 2012 to the present.

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Finally, the Court discussed with the parties how long it would take Defendants to produce

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documents. Defendants represented they could complete document production within 14 days of

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the Court’s order. Accordingly, the Court ORDERS Defendants to produce the documents

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described in this order within 14 days.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: February 20, 2019

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THOMAS S. HIXSON
United States Magistrate Judge

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