Laatz et al v. Zazzle, Inc. et al

Filing 218

ORDER by Magistrate Judge Virginia K. DeMarchi re Pending Discovery Disputes 192 , 202 , 205 , 206 , 207 , 212 . Joint status report re deposition scheduling due by 7/8/2024, 5:00 P.M. Joint status report re other discovery matters due by 7/15/2024. (vkdlc2, COURT STAFF) (Filed on 7/3/2024)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 NICKY LAATZ, 8 Plaintiff, 9 ORDER RE PENDING DISCOVERY DISPUTES v. 10 ZAZZLE, INC., et al., 11 United States District Court Northern District of California Case No. 22-cv-04844-BLF (VKD) Re: Dkt. Nos. 192, 202, 205, 206, 207, 212 Defendants. 12 13 The Court held a discovery status conference on July 2, 2024 during which the parties and 14 15 the Court discussed several pending discovery disputes and other discovery-related matters. See 16 Dkt. No. 213. Based on the discussion during the conference, the Court orders as follows: 17 1. 18 Zazzle must serve amended responses to Interrogatories 5, 10-12, and 14. 19 Zazzle must serve an amended response to Interrogatory No. 8 that states the number of Dkt. No. 202 (Ms. Laatz’s Interrogatories Nos. 5-12, 14) 20 persons who published at least one design on Zazzle’s website during the time the disputed font1 21 was being offered for use in Zazzle’s design tool. 22 Zazzle must serve an amended response to Interrogatory No. 9 that states the number of 23 persons who had shops on Zazzle’s website during the time the disputed font was being offered 24 for use in Zazzle’s design tool. Zazzle need not provide amended responses to Interrogatories Nos. 6 and 7, as those 25 26 interrogatories seek information that is neither relevant to a claim or defense nor proportionate to 27 28 1 In this order, “disputed font” refers to the Blooming Elegant Trio of fonts at issue in this case. United States District Court Northern District of California 1 the needs of the case. See Fed. R. Civ. P. 26(b)(1). 2 Zazzle’s amended responses must be served by July 3, 2024. 3 2. 4 Zazzle represents that it has produced all documents responsive to RFPs 1 and 2. To the 5 extent Ms. Laatz contends that these requests encompass (1) all images and web pages depicting 6 designs using the disputed font, (2) all transaction records for designs using the dispute font, and 7 (3) server logs showing selection or use of the disputed font, the Court concludes that such 8 documents are not clearly within the scope of RFPs 1 and 2, and that these requests do not 9 describe such documents with the “reasonable particularity” required by Rule 34. See Fed. R. Civ. 10 P. 34. Zazzle need not produce the additional documents Ms. Laatz demands with respect to RFPs 11 1 and 2. 12 Dkt. No. 205 (Ms. Laatz’s Requests for Production Nos. 1-2, 32, 34-42, 53-54) With respect to RFP 32, Zazzle represents that the only two actions Zazzle performed were 13 “downloading” software for the disputed font after purchasing a license on the Creative Market 14 website and “installing” it on Zazzle’s systems for use by its customers. Zazzle must investigate 15 further whether there any computer or system records that show these activities, and if so, it must 16 produce those records, in addition to other responsive documents (such as email communications) 17 about these actions, which Zazzle represents it has already produced. 18 With respect to RFPs 34-40, Zazzle must investigate whether it has data (regardless of the 19 form in which that data may be maintained) that can be queried to obtain the information called 20 for by these requests. See Kannan v. Apple Inc., No. 17-cv-07305-EJD (VKD), 2019 WL 21 4668112, at *1 (N.D. Cal. Sept. 25, 2019) (“To the extent Apple maintains a database or other 22 repository of information that may be queried to provide a report(s) or spreadsheet(s) showing 23 [relevant responsive information] Apple must produce that information in report or spreadsheet 24 form.”); Apple Inc. v. Samsung Elecs. Co. Ltd., No. 12-cv-0630-LHK (PSG), at *3 (N.D. Cal. 25 Aug. 14, 2013) (“Courts regularly require parties to produce reports from dynamic databases, 26 holding that the technical burden of creating a new dataset for the instant litigation does not excuse 27 production.”) (cleaned up). If information responsive to these requests can be obtained from data 28 maintained by Zazzle, without undue burden, then Zazzle must produce it. Zazzle must complete 2 1 its investigation by July 12, 2024, and shall advise Ms. Laatz’s counsel of the results of its 2 investigation by that date. United States District Court Northern District of California 3 With respect to RFPs 41 and 42, Zazzle represents that, notwithstanding its written 4 responses, it has already produced documents responsive to the full scope of these requests. To 5 the extent Ms. Laatz contends that these requests encompass all images and web pages depicting 6 designs using the disputed font, the Court concludes that such documents are not clearly within the 7 scope of RFPs 41 and 42, and that these requests do not describe such documents with the 8 “reasonable particularity” required by Rule 34. See Fed. R. Civ. P. 34. If Zazzle has already 9 produced documents sufficient to show how Zazzle used the software for the disputed font on or 10 in relation to Zazzle’s website and its online design tools, Zazzle need not produce the additional 11 documents Ms. Laatz demands with respect to RFPs 41 and 42. 12 Zazzle need not produce documents responsive to RFPs 53 and 54, as those requests seek 13 documents that are neither relevant to a claim or defense nor proportionate to the needs of the 14 case. See Fed. R. Civ. P. 26(b)(1). 15 3. 16 With respect to RFP 26, Zazzle must produce all non-privileged documents, including Dkt. No. 206 (Ms. Laatz’s Requests for Production Nos. 26, 31, 43, 46, 49-52) 17 communications, reflecting its decision to replace the disputed font (or any portion of it) with the 18 Morgana font, including the reasons for selecting that font as a replacement. Zazzle need not 19 produce “all documents, including communications, relating to any font Zazzle considered as a 20 potential replacement” for the disputed font (or any portion of it), as such a request encompasses 21 discovery that is neither relevant to a claim or defense nor proportionate to the needs of the case. 22 See Fed. R. Civ. P. 26(b)(1). 23 With respect RFPs 31 and 43, Zazzle represents that it has produced all licenses purchased 24 on Creative Market’s website by Mr. Alkhatib on May 4, 2017, but it says it would be too 25 burdensome for it to collect and produce all licenses purchased on Creative Market’s website by 26 any Zazzle employee on any date. As discussed at the hearing, the parties are directed to confer 27 further to identify whether Zazzle can, without undue burden, produce font-related licenses 28 purchased on Creative Market’s website during a more narrowly defined period or periods. The 3 United States District Court Northern District of California 1 parties shall report back to the Court on the outcome of their further conference, as directed below. 2 In any event, Zazzle need not produce “all documents, including communications, relating to” any 3 such other licenses, as such a request encompasses discovery that is neither relevant to a claim or 4 defense nor proportionate to the needs of the case. See Fed. R. Civ. P. 26(b)(1). 5 With respect to RFP 46, the parties report they have resolved their dispute. 6 RFPs 49-52 seek documents and communications relating to the licenses for fonts Ms. 7 Laatz asks about in Interrogatories Nos. 6 and 7. However, as noted above, the Court will not 8 require Zazzle to amend its responses to Interrogatories Nos. 6 and 7. For this reason, Zazzle need 9 not separately produce documents responsive to RFPs 49-52.2 Dkt. No. 207 (Zazzle’s privilege log); documents redacted for privilege 10 4. 11 The Court is not able to resolve the parties’ disputes about the adequacy of Zazzle’s 12 privilege log, its privilege claims, and its privilege redactions using the Court’s ordinary expedited 13 discovery dispute resolution procedures. For this reason, the Court denies the relief Ms. Laatz 14 requests in Dkt. No. 207, without prejudice. The Court provides the following guidance and 15 direction. Zazzle is directed to review its privilege log. At a minimum, Zazzle must ensure that each 16 17 log entry for an “attachment” clearly identifies the attorney involved in the communication or 18 work product identified as an “attachment” on the log. In view of the discussion at the discovery 19 conference, including the concerns expressed by Ms. Laatz regarding the log entries that do not 20 identify or describe each email within a multi-email thread, Zazzle may wish to make other 21 amendments to its privilege log. 22 The parties are directed to confer regarding: (1) whether Zazzle’s privilege log accurately 23 describes the privileged communication (e.g., an individual email within a longer email thread) in 24 a manner that complies with the Ninth Circuit’s direction,3 including clearly identifying the 25 attorney and client involved in the particular communication; (2) whether the Court should review 26 27 2 The Court recognizes there is overlap between RFPs 31 and 43 and RFPs 49-52. 28 3 See, e.g., In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992). 4 1 in camera a selection of disputed privilege log entries, and if so, a proposal for making that 2 selection; (3) a briefing schedule for presenting any remaining privilege disputes to the Court for 3 resolution in the form of motion under Civil Local Rule 7; and (4) any other proposals for an 4 efficient resolution of the remaining privilege disputes. 5 6 7 The parties shall report back to the Court regarding the outcome of their conference, as directed below. 5. 8 9 10 Disputed Depositions a. Ms. Laatz’s Fact Depositions of Zazzle Witnesses Based on the discovery conference, the Court understands that Ms. Laatz has taken one deposition (Robert Beaver), and seeks to take the following additional depositions: United States District Court Northern District of California 11 2 Mohamed Alkhatib 3 Pete Hottelet 4 Monica McGhie 5 Katrina Liu 6 Jeff Beaver 7 Patrick Haley 8 Irena Paschenko 9 Nizzi Renaud 12 13 14 15 16 17 18 19 20 21 10 Petar Ivanov 11 Zazzle Rule 30(b)(6) (4 designees) • Mohamed Alkhatib • Catherine Sheu 24 • Jason Li 25 • Jason Kang 22 23 26 Depending on how one counts, if Ms. Laatz takes all of these depositions, she will exceed Rule 27 30’s 10-deposition limit by at least one and maybe four depositions. 28 For purposes of this case, unless the parties agree otherwise, a Rule 30(b)(6) deposition 5 1 counts as a single deposition so long as it requires the testimony of only a single designee and is 2 completed in no more than 7 hours. If a Rule 30(b)(6) deposition requires the testimony of more 3 than one designee, then each designee who testifies for more than 3.5 hours will count as another 4 deposition, while each designee who testifies for no more than 3.5 hours will count as one-half of 5 a deposition. Thus, if Zazzle designates four representatives and each testifies for 3.5 hours or 6 less, the Rule 30(b)(6) deposition will count as two depositions. If, on the other hand, Zazzle 7 designates four representatives and each testifies for more than 3.5 hours, the Rule 30(b)(6) 8 deposition will count as four depositions. United States District Court Northern District of California 9 Absent agreement of the parties, Ms. Laatz may not exceed 10 depositions without leave of 10 the Court, which requires a showing “particularized need.” See Fed. R. Civ. P. 30(a)(2); RJ v. 11 Cigna Health & Life Ins. Co., No. 20-cv-02255 EJD (VKD), 2022 WL 16839492, at *2 (N.D. Cal. 12 Nov. 9, 2022); Authentec, Inc. v. Atrua Techs., Inc., No. C 08-1423 PJH, 2008 WL 5120767, at *1 13 (N.D. Cal. Dec. 4, 2008). If Ms. Laatz seeks leave to take specific depositions in excess of the 10- 14 deposition limit, the parties should file a joint discovery dispute letter. 15 Zazzle objects to Ms. Laatz’s requests for depositions of Jeff Beaver, Pete Hottelet, and 16 Irena Paschenko. The parties must present this dispute for resolution by filing a joint discovery 17 dispute letter. 18 19 20 b. Zazzle’s Fact Depositions of Ms. Laatz’s Witnesses Based on the discovery conference, the Court understands that Zazzle has taken no depositions, and seeks to take the following depositions: 21 1 Nicky Laatz 2 John Laatz 3 Brightbox Collective Rule 30(b)(6) (2 designees) 4 Nick Laatz Creations UK Rule 30(b)(6) (2 designees) 5 Stephen Steinberg 22 23 24 25 26 27 Zazzle advises that it expects that it can complete the individual depositions of Nicky Laatz, John 28 Laatz, Brightbox Collective, and Nicky Laatz Creations UK in a total of two to three days, 6 1 depending on whether Ms. Laatz and Mr. Laatz are willing to sit for longer than 7 hours each in a 2 single day for combined individual and corporate testimony. The Court understands that Ms. 3 Laatz does not object to these depositions, although the parties disagree about scheduling. 4 Zazzle also wishes to take the deposition of litigation counsel, Stephen Steinberg. Ms. 5 Laatz and Mr. Steinberg object to this deposition. The parties must present this dispute for 6 resolution by filing a joint discovery dispute letter. 7 8 9 10 United States District Court Northern District of California 11 c. Deposition Scheduling With the exception of Katrina Liu (who is not available for deposition until midSeptember), Jeff Beaver, and Stephen Steinberg, counsel have identified dates for all witness depositions on or before August 8, 2024, the current fact discovery deadline. For those witnesses as to whom there is no substantive objection pending (i.e. no objection 12 apart from exceeding the 10-deposition limit), the Court orders the parties to confer 13 immediately and confirm dates for these depositions. The parties shall report to the Court 14 regarding the scheduled dates for these depositions by July 8, 2024 by 5:00 p.m. 15 6. 16 The parties advise that no dispute remains as to Zazzle’s responses to Ms. Laatz’s RFAs 17 18 19 Other Discovery Matters Nos. 302-358. See Dkt. No. 212 at I.A.5. Zazzle must serve amended responses to Ms. Laatz’s RFAs Nos. 259-270, 276, 301, 359376, 391-399, and 410-428 by July 10, 2024. See id. 20 In view of the Court’s resolution of disputed discovery requests regarding information in 21 Zazzle’s possession, custody, or control about the number of designers that have created designs, 22 published designs, or ordered products with designs that use the disputed font, as well as the 23 number of such designs, and in view of the Court’s resolution of disputed discovery requests 24 regarding the servers on which Zazzle downloaded or installed the software for the disputed font, 25 the Court believes it is unnecessary for Ms. Laatz to conduct a physical inspection of any Zazzle 26 computer or system. However, the Court does not have sufficient information to resolve this 27 dispute at this time. If necessary, the parties must present this dispute for resolution by filing a 28 joint discovery dispute letter. See Dkt. No. 212 at I.A.6. 7 With respect to Zazzle’s RFPs 25-27 and 87 regarding Ms. Laatz’s social media content, 1 2 including direct messages, relating to Zazzle, the disputed font, or this action, Ms. Laatz represents 3 that she believes she has produced all responsive documents; however, Ms. Laatz’s counsel 4 acknowledged that they have not fully investigated whether Ms. Laatz and Mr. Laatz have 5 conducted an adequate search. Ms. Laatz shall investigate whether all responsive documents have 6 been collected and produced. Ms. Laatz must complete her investigation by July 12, 2024, and 7 shall advise Zazzle’s counsel of the results of her investigation by that date. See Dkt. No. 212 at 8 I.B.4. United States District Court Northern District of California 9 With respect to Zazzle’s RFPs 14-16 and 22-24 regarding Ms. Laatz’s creation of the 10 disputed font, Ms. Laatz represents that she has produced all responsive documents. It appears 11 that there is no dispute as to these requests. See id. 12 The Court declines to modify its expedited discovery dispute resolution procedures or to 13 impose additional procedures. See Dkt. No. 192. The Court expects the parties to heed the 14 admonitions given during the hearing on June 11, 2024 and the conference on July 3, 2024 about 15 the Court’s expectations for discovery dispute resolution. 16 7. 17 The parties are directed to jointly report to the Court regarding the status of deposition 18 Status Reports scheduling no later than July 8, 2024 at 5:00 p.m. 19 The parties are directed to jointly report to the Court regarding the status of the other 20 matters, identified above, for which the Court has asked for a status report by July 15, 2024. 21 22 IT IS SO ORDERED. Dated: July 3, 2024 23 24 Virginia K. DeMarchi United States Magistrate Judge 25 26 27 28 8

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