reFX AUDIO SOFTWARE INC. v. Does 1-123

Filing 129

ORDER granting in part and denying in part 124 Plaintiff's Renewed Combined Motion to Compel Discovery Against Defendant Keith Estes, to Modify the Discovery Schedule, and for Attorney's Fees. Initial expert disclosure due by 4/30/2014. Rebuttal expert disclosure due by 5/15/2014. Discovery due by 5/30/2014. Dispositive Motions due by 6/30/2014. Counsel shall meet and confer regarding the preparation and submission of a proposed protective order on or before 3/17/2014. Defendant shall submit supplemental responses to Plaintiff's discovery requests on or before 3/31/2014. No attorneys' fees and costs will be awarded. No further extensions will be granted absent showing of exceptional cause. By Magistrate Judge Michael E. Hegarty on 3/7/2014. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03146-WYD-MEH
reFX AUDIO SOFTWARE, INC.,
Plaintiff,
v.
DARRYL JOHNSON II,
ELEANOR TURNER,
KEITH ESTES, and,
NICOLE FIELDS,
Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Plaintiff has filed a Renewed Combined Motion to Compel Discovery Against Defendant
Keith Estes, to Modify the Discovery Schedule, and for Attorney’s Fees [filed January 29, 2014;
docket # 124]. The motion has been referred to this Court for disposition. (Docket # 125.) The
matter is fully briefed, and oral argument would not materially assist the Court in its adjudication.
For the following reasons, the Defendants’ motion is granted in part and denied in part.
I.

Background
This lawsuit arises out of Defendant’s alleged copyright infringement of Plaintiff’s reFX

Audio Software pursuant to § 17 U.S.C. 101 (the “Copyright Act”). Plaintiff is a Canadian company
that produces software used for sound mixing. Plaintiff alleges that Defendant infringed its ROM
synthesizer-plugin software program, specifically Nexus 2 and/or Nexus 2.2.0, by means of an
interactive “peer-to-peer” (“P2P”) file transfer technology protocol called BitTorrent. Plaintiff

recovered Defendant’s identification by providing Defendant’s Internet Service Provider (“ISP”)
with Defendant’s Internet Protocol (“IP”) address through subpoena and requesting the identity of
the person assigned to the specific IP address. Plaintiff named Defendant in an amended complaint,
(docket #55), and both parties attended a scheduling conference on September 5, 2013. (Docket
#102.) This Court issued a Scheduling Order setting a discovery cutoff of February 21, 2014.
(Docket #103.) On January 29, 2014, Plaintiff filed this Combined Motion to Compel Discovery
Against Defendant Keith Estes, to Modify the Discovery Schedule, and for Attorney’s Fees
(“Motion to Compel”). (Docket #124.)
Plaintiff argues that Defendant has failed to submit Rule 26(a)(1) disclosures, which were
due on or before September 19, 2013, and failed adequately to respond to Plaintiff’s First Set of
Written Discovery served on November 25, 2013. Defendant counters that Plaintiff also failed to
submit Rule 26(a)(1) disclosures due by September 13, 2013, and did not file timely Rule 26(a)(2)
expert disclosures which were due on or before January 3, 2014. The discovery cutoff in this case
was February 21, 2014 and has, therefore, passed. Plaintiff notes that calls were made to Defendant
on January 3, 2014 and January 7, 2014 to try to resolve the disputes. Defendant responded by letter
and, apparently, the discovery disputes were not resolved. Thus, Plaintiff seeks to compel
production of Defendant’s initial disclosures, complete responses to its discovery requests,
attorney’s fees and costs, and an extension of the discovery deadlines in this case.
II.

Legal Standards
The scope of evidence that is subject to discovery under the federal rules is broad:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense – including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity
and location of persons who know of any discoverable matter. For good cause, the
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court may order discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P 26(b)(1) (2012). Generally, the party objecting to discovery as irrelevant must
establish that the requested discovery does not fall under the scope of relevance as defined in Fed.
R. Civ. P 26(b)(1). Simpson v. University of Colo., 220 F.R.D. 354, 359 (D. Colo. 2004). First,
however, the party moving to compel discovery must prove that the opposing party’s answers are
incomplete. Bayview Loan Servicing, LLC v. Boland, 259 F.R.D. 516, 518 (D. Colo. 2009) (citing
Daiflon, Inc. v. Allied Chemical Corp., 534 F.2d 221 (10th Cir. 1976) (“appellees had the burden
of proving the answer to their interrogatory was indeed incomplete”)); see also Continental Ins. Co.
v. McGraw, 110 F.R.D. 679, 682 (D. Colo. 1986) (the burden of proof lies with the proponent to
prove answers are incomplete, inadequate, or false).
It appears that Defendant’s primary objection to responding to Plaintiff’s discovery requests
is his “right to privacy.” To protect a party from annoyance, embarrassment, oppression or undue
burden, the Court may issue a protective order in the case. Fed. R. Civ. P. 26(c). The Court notes
that neither party has presented a proposed protective order to abate the privacy and/or
confidentiality concerns of the parties; however, the Court finds good cause to enter such order in
this case and directs the Plaintiff to prepare and submit to the Court such proposed protective order
in accordance with the order issued in Gillard v. Boulder Valley Sch. Dist., 196 F.R.D. 382 (D. Colo.
2000).
III.

Discussion
Mindful that a protective order will be issued in this case to protect the privacy and

confidentiality concerns of the parties, the Court finds as follows.

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A.

Rule 26(a)(1) Disclosures

Plaintiff asks Defendant to produce his Rule 26(a)(1) disclosures. Plaintiff asserts that
Defendant did not comply with the Civil Scheduling Order (docket #103) by not submitting his
disclosures on or before September 19, 2013. (Docket #124.) However, Defendant also asserts that
Plaintiff did not submit their disclosures on or before their deadline of September 12, 2013. (Docket
#127.) Both parties are required to submit Rule 26(a)(1) disclosures to the other parties, without
awaiting a discovery request, either 14 days after the Rule 26(f) conference, or by the deadline set
out by court order. The Civil Scheduling Order filed on September 5, 2013, set the deadlines
mentioned above. Neither party complied with these court ordered deadlines and are being ordered
to do so now.1 The Court grants the Motion to Compel and orders Defendant to produce his Rule
26(a)(1) disclosures on or before March 31, 2014.
B.

Defendant’s Responses to Plaintiff’s First Set of Interrogatories

The Court will address each challenged discovery request in the same order set forth in
Plaintiff’s Motion to Compel:
Interrogatory # 1
Plaintiff asks Defendant to identify all persons who had lived in or visited the household
during the time period at issue, July 25, 2012 through January 16, 2013. In response, Defendant
described who lived at the residence during the time period, but responds that he does not recall
who, if anyone, visited. The Court believes that this is an appropriate response. If Defendant

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Plaintiff asserts that it submitted its Rule 26(a)(1) disclosures on September 12, 2013,
and sent a second copy of the disclosures along with its Reply brief filed March 5, 2014.
Plaintiff does not need to send another copy of his disclosures to Defendant, unless Defendant
indicates he did not receive the second copy. (Docket #128.) Defendant may use the same
format used by Plaintiff in providing his disclosures to the Plaintiff.
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develops more information with regard to visitors during the time period at issue, he may
supplement or amend his response. See Fed. R. Civ. P. 26(e). The Court reminds Defendant that
he must be deliberate in considering each discovery request and seeking responsive information
and/or documents within his possession or control. The Court denies the Motion to Compel as to
this Interrogatory, and Defendant is instructed to supplement his response if and when he learns any
new information.
Interrogatory # 2
Plaintiff asks Defendant to identify all persons who had access to the Internet at the
household during the time period at issue, July 25, 2012 through January 16, 2013, with or without
permission. Defendant states that he cannot answer the interrogatory as it would be an infringement
of his privacy. The Court finds Interrogatory # 2 seeks relevant information and Defendant’s
forthcoming response may contain information subject to the operative protective order. Thus,
Defendant shall answer the question as to the identity of his wife and the age of his minor child(ren).
Defendant shall also answer the latter part of the question to the best of his recollection. If
Defendant does not have or know the requested information, he must so state. Therefore, the Court
grants the Motion to Compel as to this Interrogatory and directs Defendant to fully and completely
respond.
Interrogatory # 3
Plaintiff asks Defendant to provide his IP Address. Defendant states that answering the
question would be an infringement upon his right to privacy. The Court is perplexed as to this
interrogatory, since the Plaintiff has already alleged the Defendant possesses IP Address
75.70.81.148. Amended Complaint, ¶ 34, docket #55; ISP List, docket #55-1. To the extent the

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Plaintiff seeks the truth of its allegation, such request may be made in the form of a Request for
Admission or during the Plaintiff’s deposition. Therefore, without more from Plaintiff, the Court
denies the Motion to Compel as to this Interrogatory.
Interrogatory # 9
Plaintiff requests Defendant identify any communication received from his Internet Service
Provider (ISP) in the last two years, regarding any changes in the terms of his contract or agreement
and any notices regarding copyright infringement. Defendant states that answering the question
would be an infringement upon his right to privacy. The Court finds Interrogatory # 9 is overbroad
as to the time period, but seeks relevant information for the period July 2012 to July 2013, and
Defendant’s forthcoming response may contain information subject to the operative protective order.
Therefore, the Court grants in part and denies in part the Motion to Compel as to this Interrogatory
and directs Defendant to fully and completely respond for the time period July 2012 to July 2013.
Interrogatory # 5
Plaintiff seeks information about any internet capable devices that had been in the home
during the time period at issue, July 25, 2012 through January 16, 2013. Defendant objects that the
question is overly burdensome. The Court disagrees with Defendant and finds Interrogatory # 5
seeks relevant information for the limited time period. As with Interrogatory # 2, if Defendant does
not have the requested information, he must so state. If he has some but not all of the information,
he must identify that information. Therefore, the Court grants the Motion to Compel as to this
Interrogatory and directs Defendant to fully and completely respond.

Interrogatory # 6

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Plaintiff asks Defendant to identify any person he knows who mixes, edits, modifies, or
creates music. Defendant responds “unknown at this time.” Responses, docket # 124-1 at 2. The
Court finds this to be a sufficient response. Again, the Court reminds Defendant that he must be
deliberate in considering each discovery request and seeking responsive information and/or
documents within his possession or control. If Defendant recalls or develops more information
about any person he knows who mixes, edits, modifies, or creates music, he shall supplement or
amend his response pursuant to Rule 26(e). The Court denies the Motion to Compel as to this Interrogatory.
Interrogatory # 11
Plaintiffs asks Defendant to identify each internet browser used by each individual who had
access to his internet connection during the time period July 25, 2012 through January 16, 2013.
Defendant responds “unknown at this time.” Responses, docket # 124-1 at 3. The Court finds
Interrogatory # 11 seeks relevant information, and Defendant’s forthcoming response may contain
information subject to the operative protective order. Accordingly, Defendant shall attempt to
collect the information and respond to the question to the best of his knowledge. If Defendant does
not have the requested information, he must so state. The Court grants the Motion to Compel as to
this Interrogatory and directs Defendant to fully and completely respond.
C.

Defendant’s Responses to First Request of Documents

Requests for Production Nos. 2, 4-7, 9
Plaintiff requests copies of various documents from Defendant as follows:
RFP No. 2 – All documents and communications that refer or relate to Defendant’s use of peer to
peer file transfer technology, including BitTorrent and µTorrent.
RFP No. 4 – All documents and communications that refer or relate to Defendant’s use or

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knowledge of reFX Audio Software Inc. products, including but not limited to Nexus 2.
RFP No. 5 – All documents and communications that refer or relate to Defendant’s use or purchase
of the software or video games specified by Plaintiff reFX Audio Software Inc.’s First Set of
Requests for Admission Numbers 22 through 24.
RFP No. 6 – All documents that refer or relate to the maintenance, inspection, or modification of
any and all Internet capable devices at Defendant's place of residence during the time period at issue.
RFP No. 7 – All documents and communications that refer or relate to this action.
RFP No. 9 – All documents and communications that refer or relate to reFX.
Generally, Defendant objects to all of these requests as “overly burdensome” and states “[i]t
is my assumption that you have this documentation from the District of Colorado court and/or
retained copies of your correspondence to me regarding my alleged use of the software referred to
in this request.” Responses, docket #124-2 at 2-3. The Court finds that Defendant’s response is
insufficient, that RFP Nos. 2, 4-7 and 9 seek relevant information, and that Defendant’s forthcoming
response may contain information subject to the operative protective order. The Court notes that
in addition to his general objection, Defendant also states in response to RFP Nos. 4, 5, and 6, that
he is “unaware any documentation, if any, exists.” It appears the Defendant vaguely attempts to
state that he neither has nor knows of the documents requested; however, such statement is unclear.
Therefore, Defendant is directed to gather any documents in his possession, custody or control that
respond to the listed RFPs. If Defendant neither has, nor has access to, any of the documents
requested by Plaintiff, he must so state. The Court grants the Motion to Compel as to Requests for
Production Nos. 2, 4-7, 9.
IV.

Conclusion

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Accordingly, as set forth above, Plaintiff’s Renewed Combined Motion to Compel Discovery
Against Defendant Keith Estes, to Modify the Discovery Schedule, and for Attorney’s Fees [filed
January 29, 104; docket # 124] is granted in part and denied in part as set forth herein.
On or before March 17, 2014, the Plaintiff shall confer with Defendant for the preparation
and submission to the Court by email ([e-mail]) a proposed protective
order in accordance with the order issued in Gillard v. Boulder Valley Sch. Dist., 196 F.R.D. 382
(D. Colo. 2000). The Court will issue the approved protective order as soon as possible after it is
submitted.
The Defendant shall submit his supplemental responses to Plaintiff’s discovery requests in
accordance with this Order on or before March 31, 2014. Failure to do so may result in sanctions.
Further, pursuant to Fed. R. Civ. P. 37(a)(5)(C), the Court finds any award of expenses unjust
under the present circumstances, and, thus, the Court denies all requests for attorneys’ fees and
costs.
Finally, the Court finds good cause to modify the Scheduling Order as follows:
Initial expert disclosure:

April 30, 2014

Rebuttal expert disclosure:

May 15, 2014

Discovery cutoff:

May 30, 2014

Dispositive motions due:

June 30, 2014

The Court will grant no further extensions of these deadlines absent a showing of exceptional cause.

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Entered and dated at Denver, Colorado, this 7th day of March, 2014.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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