Kaseberg v. Conaco, LLC et al

Filing 55

ORDER regarding 52 Joint Motion for Determination of Discovery Dispute Regarding Document Produtcion at the Deposition of Danielle Weisberg. The Court grants in part and denies in part Plaintiff's motion to compel. (ECF No. 52.) The Court orde rs production of all e-mail correspondence between Ms. Weisberg and Josh Comers, Brian Kiley, and Rob Kutner on the following dates: January 14, 2015, February 4, 2015, February 17, 2015, and June 9, 2015. Signed by Magistrate Judge David H. Bartick on 9/28/2016. (kcm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14

Case No.: 15-cv-01637-JLS (DHB)

ROBERT ALEXANDER KASEBERG,
Plaintiff,

ORDER REGARDING JOINT
MOTION FOR DETERMINATION
OF DISCOVERY DISPUTE
REGARDING DOCUMENT
PRODUCTION AT THE
DEPOSITION OF DANIELLE
WEISBERG

v.
CONACO, LLC, et al.,

15

Defendant.

16
17

(ECF No. 52)

18
19
20
21

On August 12, 2016, the parties filed a Joint Motion for Determination of Discovery

22

Dispute Regarding Document Production at the Deposition of Danielle Weisberg. (ECF

23

No. 52.) Having considered the arguments of the parties and the applicable law, and for

24

the reasons set forth herein, the Court GRANTS IN PART and DENIES IN PART

25

Plaintiff’s motion.

26

///

27

///

28

///
1
15-cv-01637-JLS (DHB)

1

I.

BACKGROUND

2

A.

3

Plaintiff commenced this action on July 22, 2015 by filing a complaint against

4

Defendants alleging copyright infringement. (ECF No. 1 (“Compl.”).) Plaintiff alleges he

5

is a comedic writer engaged in the entertainment industry. (Id. at ¶ 14.) Plaintiff alleges

6

that after he wrote and published four jokes on his personal online blog and/or Twitter

7

account, each joke was subsequently featured in the monologue segment of the “Conan”

8

show. (Id. at ¶¶ 15-21.)

Factual Background

9

Plaintiff alleges that he published a joke regarding a Delta flight on or about January

10

14, 2015 on his personal online blog (“Joke #1”). (Id. at ¶ 15.) Defendants used a joke

11

about a Delta flight in the Conan show monologue on January 14, 2015. (See ECF No. 36-

12

1 (“Huskins Decl.”) at Exh. B at Definition K.) Plaintiff further alleges that, on or about

13

February 3, 2015, he published a joke on his personal online blog and Twitter account

14

regarding Tom Brady (“Joke #2”). (Compl. at ¶ 16.) Defendants used a joke about Tom

15

Brady in the Conan show monologue on February 4, 2015. (Huskins Decl. at Exh. B at

16

Definition M.) On or about February 17, 2015, Plaintiff alleges he published a joke on his

17

personal online blog and Twitter account regarding the Washington Monument (“Joke

18

#3”). (Compl. at ¶ 18.) Defendants used a joke regarding the Washington Monument in

19

the Conan show monologue on February 17, 2015. (Huskins Decl. at Exh. B at Definition

20

O.) Lastly, on or about June 9, 2015, Plaintiff alleges he published a joke on his personal

21

online blog and Twitter account regarding Bruce Jenner (“Joke #4”). (Compl. at ¶ 19.)

22

Defendants used a joke regarding Bruce Jenner in the Conan show monologue on June 9,

23

2015. (Huskins Decl. at Exh. B at Definition Q.)

24

Plaintiff filed copyright applications for each of the jokes at issue, deeming them

25

“literary works,” with the United States Copyright Office on March 10, 2015, March 11,

26

2015, June 26, 2015, and July 8, 2015. (Compl. at ¶ 23; see also ECF No. 1-2.) These

27

applications are pending. (Id.)

28

///
2
15-cv-01637-JLS (DHB)

1

Plaintiff seeks a permanent injunction, actual damages, statutory damages, increased

2

statutory damages for willful infringement, and profits attributable to the infringement of

3

Plaintiff’s copyrights pursuant to 17 U.S.C. §§ 502(a) and 504. (Id. at pp. 6-7.) Plaintiff

4

also seeks attorney’s fees and costs and punitive damages. (Id. at p. 7.)

5

II.

DISCUSSION

6

Plaintiff initially served a notice of deposition for Defendant Conaco, LLC

7

employee, Danielle Weisberg, on April 18, 2016. (ECF No. 52-1 (“Lorenzo Decl.”) at ¶

8

2.) He thereafter re-noticed the deposition multiple times. (Id. at ¶¶ 7, 10.) The deposition

9

notice, and subsequent deposition notices, requested that Ms. Weisberg produce the

10
11

following documents:
1.

12
13

1, 2013 to December 31, 2015.
2.

14
15

All e-mail correspondences between Deponent and Brian Kiley from January
1, 2013 to December 31, 2015.

3.

16
17

All e-mail correspondences between Deponent and Josh Comers from January

All e-mail correspondences between Deponent and Rob Kutner from January
1, 2013 to December 31, 2015.

(Id. at Exhs. A, C, F.)

18

Plaintiff ultimately took Ms. Weisberg’s deposition on July 1, 2016. (Id. at ¶ 11.)

19

At the deposition, the only documents Ms. Weisberg produced were two emails related to

20

the jokes at issue. (Id.) Plaintiff now moves to compel production of a subset of the

21

requested documents, namely, all emails between Ms. Weisberg and Josh Comers, Brian

22

Kiley, and Rob Kutner on the following dates: December 3, 2014, January 13, 2015,

23

January 14, 2015, February 3, 2015, February 17, 2015, and June 9, 2015. (ECF No. 52 at

24

p. 11.)

25

Plaintiff argues the requested emails are relevant to his claims and narrowly tailored

26

to the dates on which the four jokes at issue were written, as well as two other dates.

27

Plaintiff asserts that Ms. Weisberg is the writing assistant who acts as the liaison between

28

the writers, Mr. Sweeney, Mr. O’Brien, and others on the writing team when it comes to
3
15-cv-01637-JLS (DHB)

1

joke submission, as well as the person who notifies the writers of various meetings

2

throughout the day which involve joke submissions. (Id. at p. 8.) Plaintiff further states

3

that Ms. Weisberg testified at her deposition that e-mails are exchanged between her and

4

Mr. Comers, Mr. Kiley, and Mr. Kutner throughout the day, which may include the

5

proposed jokes, timing of meetings, when jokes are due to be submitted, and premises that

6

may be suggested, among other things. (Id.) Plaintiff argues these emails “establish the

7

daily routine, timing, processes, policies, and procedures of Conaco, LLC when it is

8

creating and preparing jokes for use on the Conan show monologue,” and such routines,

9

processes, policies, and procedures are “key to this case because they relate to the timing

10

of the jokes submitted, the circumstances regarding the submission of jokes on certain days,

11

and ultimately the elements of ‘access’; ‘intent’; and ‘copying’ in this litigation.” (Id. at p.

12

7.)

13

Defendants argue the requests are grossly overbroad on their face, duplicative of

14

requests this Court has already held to be overbroad, unduly burdensome, and not likely to

15

lead to admissible evidence, as well as unduly burdensome and not limited in subject matter

16

relevant to Plaintiff’s claims. (Id. at p. 12, 15-20.) Defendants point to the Court’s prior

17

order addressing Plaintiff’s Requests for Production Nos. 6-8 served on Defendant Conaco,

18

LLC. In those Requests for Production, Plaintiff sought discovery of the following: any

19

and all documents, including any and all emails, involving Josh Comers, Brian Kiley, and

20

Rob Kutner, regarding any and all jokes these writers submitted to Conaco, LLC for use

21

on the Conan show monologue in the last three years. (ECF No. 38-2 at Exh. 14.)

22
23
24
25
26
27
28

In denying Plaintiff’s motion to compel documents responsive to these requests, the
Court held as follows:
The Court agrees with Defendants that Requests Nos. 6-8, as framed, are
overly broad and unnecessarily burdensome. Although Plaintiff contends
these requests are relevant to access, they are not specifically tailored to the
issue of access, and thus are not likely to lead to relevant evidence. As
Plaintiff has not made a specific showing that the burdens of production would
be minimal, proportional to the needs of the case, and that the requested
documents would lead to relevant evidence, the Court denies Plaintiff’s
4
15-cv-01637-JLS (DHB)

1

motion to compel responses to Requests Nos. 6-8 beyond what Conaco has
already agreed to produce. See Sorosky v. Burroughs Corp., 826 F.2d 794,
805 (9th Cir. 1987) (affirming district court’s denial of a motion to compel
documents where the requests were unnecessarily burdensome and overly
broad and there was no “specific showing that the burdens of production
would be minimal and that the requested documents would lead to relevant
evidence”); Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d
429, 438-39 (9th Cir. 1992) (same); see also Fed. R. Civ. P. 26(b)(1).

2
3
4
5
6
7

(ECF No. 47 at p. 17, lines 11-23.) The key phrase in this holding was “as framed,” because

8

the Court did not hold that the documents sought were wholly irrelevant, simply that the

9

document requests “as framed,” without any specific tailoring to the issue of access, and

10

without any specific showing that the burdens of production would be minimal and

11

proportional to the needs of the case, were overly broad and unduly burdensome. In the

12

joint motion prior to the order, Plaintiff invited the Court to re-write his requests, which

13

the Court declined to do.

14

Here, the Court finds that Plaintiff has made a specific showing that the e-mail

15

correspondence between Ms. Weisberg and Mr. Comers, Mr. Kiley, and Mr. Kutner is

16

relevant to Plaintiff’s claims for the dates on which the jokes at issue were used in the

17

Conan show monologue: January 14, 2015, February 4, 2015, February 17, 2015, and June

18

9, 2015. The Court further finds that Plaintiff has narrowly tailored his requests, such that

19

they are proportional to the needs of the case, and that the production of emails for these

20

four days is not unduly burdensome. Accordingly, the Court grants Plaintiff’s motion to

21

compel responses to these document requests for these dates. The Court does not find,

22

however, that Plaintiff has sufficiently demonstrated the relevance of Ms. Weisberg’s

23

emails for January 13, 2015 or December 3, 2014.

24

Plaintiff’s motion to compel production of emails on these dates.

25

///

26

///

27

///

28

///

Accordingly, the Court denies

5
15-cv-01637-JLS (DHB)

1

III.

CONCLUSION

2

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

3

Plaintiff’s motion to compel. (ECF No. 52.) The Court orders production of all e-mail

4

correspondence between Ms. Weisberg and Josh Comers, Brian Kiley, and Rob Kutner on

5

the following dates: January 14, 2015, February 4, 2015, February 17, 2015, and June 9,

6

2015.

7

IT IS SO ORDERED.

8

Dated: September 28, 2016

9
10

_________________________
DAVID H. BARTICK
United States Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
15-cv-01637-JLS (DHB)