Disney Enterprises, Inc. et al v. Hotfile Corp. et al
Filing
116
RESPONSE in Opposition re 104 Plaintiff's MOTION for Protective Order PLAINTIFFS' MOTION FOR A PROTECTIVE ORDER REGARDING PLAINTIFFS' ANTIPIRACY INVESTIGATIONS AND ENFORCEMENT PROCEDURES and Memorandum of Law filed by Hotfile Corp., Anton Titov. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K)(Munn, Janet)
EXHIBIT “H”
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Only the Westlaw citation is currently available.
United States District Court, N.D. California,
San Jose Division.
VIACOM INTERNATIONAL, INC., et al., Plaintiffs,
v.
YOUTUBE, INC., et al., Defendants.
No. C-08-80211 MISC. JF (PVT).
Jan. 14, 2009.
West KeySummaryCopyrights and Intellectual
Property 99
84
99 Copyrights and Intellectual Property
99I Copyrights
99I(J) Infringement
99I(J)2 Remedies
99k72 Actions for Infringement
99k84 k. Discovery. Most Cited Cases
Documents requested by online video hosting
service of copyright monitoring company, as they
related to copyright holders and related entities, were
relevant to copyright holder's infringement action
against online video hosting service. The requested
documents that reflected monitoring by monitoring
company of online video hosting service's website
may have refuted copyright holder's assertions that
their burden for policing the website was too high.
Online video hosting service also expected that the
documents sought would refute copyright holder's
claims that it hindered copyright owners' attempts to
locate infringing content on its website. Fed.Rules
Civ.Proc.Rules 26(b), 34(a), 45, 28 U.S.C.A.
Susan Kohlmann, Jenner & Block, LLP, Louis M.
Solomon, Proslauer Rose LLP, Max W. Berger
Bernstein Litowitz Berger & Grossman, New York,
NY, Donald B. Verrilli, Jr., Jenner & Block LLC,
Washington, DC, Stephen D. Hibbard, Shearman &
Sterling LLP, San Francisco, CA, Stuart Jay Baskin,
Shearman & Sterling LLP, New York, NY, for Plaintiffs.
Brandon D. Baum, Eric Evans, Mayer Brown
LLP, Caroline Elizabeth Wilson, David H. Kramer,
Wilson Sonsini Goodrich & Rosati, Palo Alto,
CA, John P. Mancini, Mayer Brown LLP, New York,
NY, for Defendants.
ORDER GRANTING DEFENDANT YOUTUBE'S MOTION TO COMPEL
PATRICIA V. TRUMBULL, United States Magistrate Judge.
INTRODUCTION
*1 Defendants YouTube, Inc., YouTube LLC and
Google, Inc. (collectively “YouTube” or “defendants”) move to compel third-party BayTSP, Inc.
(“BayTSP”) to produce documents responsive to a
subpoena duces tecum served on or about September
27, 2007. Third-party BayTSP opposes the motion. On
December 9, 2008, the parties appeared for hearing.
Plaintiffs Viacom International, Inc., Comedy Partners, Country Music Television, Inc., Paramount
Pictures Corporation and Black Entertainment Television LLC, (collectively “Viacom” or “plaintiffs”)
appeared in part.FN1 Having read the papers and considered the arguments of counsel, defendants' motion
to compel is granted.FN2
FN1. Because plaintiffs have undertaken review of third-party BayTSP documents for
privilege and work-product doctrine, they
appeared at the hearing for the limited purpose of determining the timing of the proposed production. Transcript of Proceedings
Before the Honorable Patricia V. Trumbull,
U.S. Magistrate Judge, December 9, 2008.
(“Tr.”). Tr. 3:22-25; 4:1.
Viacom expects that its own documents
will be produced to YouTube in or around
March 15, 2009. Tr. 31: 21-24.
FN2. The holding of this court is limited to
the facts and the particular circumstances
underlying the present motion.
BACKGROUND
Viacom and its numerous affiliates, including
Comedy Partners, Country Music Television, Inc.,
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Paramount Pictures Corporation and Black Entertainment Television, create, produce and distribute,
inter alia, television programs, motion pictures and
short form audiovisual works across all media platforms for audiences worldwide. Plaintiffs have undertaken certain and significant efforts to protect their
original works, including availing themselves of the
protections provided by copyright laws. As a general
matter, licensing, distribution and public performance
of plaintiffs' original works has been limited to authorized mediums, formats and venues.
Founded in 2005, YouTube is an online video
hosting service that enables users to share their personal and original video clips across the Internet
through websites, mobile devices, blogs and electronic
mail.FN3 The service hosts hundreds of millions of
video clips and its vast range of content includes forums for political candidates, reportings from remote
war zones like Darfur, stand-up routines, drunken
ramblings, backyard science projects to delivery room
footage. YouTube has a global audience of tens of
millions of people and is the number one video site on
the Internet. Users upload new clips to YouTube's
video hosting website every day.
FN3. YouTube is a wholly owned subsidiary
of Google, Inc. (“Google”). In 2006, Google
acquired YouTube for $1.65 billion.
In the underlying action pending in the Southern
District of New York, Viacom has alleged claims
against YouTube for direct (public performance,
public display, reproduction and distribution), contributory and vicarious copyright infringement and has
sought damages in excess of $1 billion.FN4 Copyrighted works at issue, include, but are not limited to,
popular television programs and motions pictures such
as “SpongeBob, SquarePants,” “The Daily Show with
Jon Stewart,” “The Colbert Report,” “South Park,”
“Ren & Stimpy,” “MTV Unplugged,” “An Inconvenient Truth,” and “Mean Girls.” In sum, plaintiffs
have alleged that YouTube has “fuel[ed] an explosion
of copyright infringement by exploiting the inexpensive duplication and distribution made possible by
digital technology.” First Amended Complaint filed
on April 18, 2008, at ¶ 1. (“FAC”). YouTube profits
from the massive Internet traffic generated by users
who have unlawfully uploaded plaintiffs' original and
copyrighted works. FAC at ¶ 5. And YouTube obstructs plaintiffs' efforts to locate such works. FAC at
¶¶ 7-8. As a result, plaintiffs allege that certain of their
writers, composers and performers are being denied
just compensation for their original works. FAC at ¶ 2.
FN4. Viacom filed its action on March 13,
2007. A tag-along putative class action was
filed on May 4, 2007. The two actions have
been consolidated for purposes of discovery.
YouTube represents that the discovery
plan in the underlying litigation provides
for third-party discovery to proceed first.
Tr. 4:17-18.
*2 In its defense, YouTube asserts that the Digital
Millenium Copyright Act (“DMCA”) immunizes
intermediary service providers, such as itself, from
copyright liability for material uploaded by users so
long as service providers timely respond to notifications from content owners of alleged copyright infringement. YouTube notes that the Ninth Circuit has
recently held that, under the DMCA, the burden of
policing copyright infringement rests squarely on
copyright owners. YouTube claims that it has taken a
host of industry-leading steps to assist copyright
owners stop the unauthorized posting and viewing of
copyrighted content. And YouTube claims it has been
“extremely responsive” to takedown notices from
copyright holders.
BayTSP located in Los Gatos, CA describes itself
as “a service company retained by copyright owners to
identify individuals who are making their copyrighted
works available for download on the Internet.” Sending infringement notices on behalf of clients and
monitoring for compliance are among the services
offered by BayTSP. Prior to filing the lawsuit (and at
least as early as June 2006), Viacom and other copyright owners engaged third-party BayTSP to police,
document and notify YouTube when potentially infringing material was located on its website. Indeed,
an article located on BayTSP's website states that the
Viacom lawsuit was predicated on specific work done
by BayTSP. Viacom hired BayTSP to use its “crawler
software” “to scour every corner of YouTube's site,”
and in turn, BayTSP identified more than 150,000
unauthorized clips on the YouTube website. Viacom's
General Counsel has stated that to do so, costs the
company “tens of thousands of dollars a month.”
On September 27, 2007, YouTube served
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third-party BayTSP with a subpoena duces tecum
seeking the production of documents. (“subpoena”).
BayTSP served objections to the various document
requests. Thereafter, the parties met and conferred in
numerous efforts to resolve their discovery dispute.FN5
To date, third-party BayTSP has not produced any
responsive documents.
FN5. The parties state they have undertaken
extensive efforts to meet and confer, including twenty-four formal letters, numerous
emails and at least six substantive teleconferences between the parties' counsel.
On May 15, 2008, a second amended stipulated
protective order was entered in the underlying action.
See YouTube's Reply In Support of Motion to Compel
Production of Documents, Exh. A. (“Stipulated Protective Order”).
LEGAL STANDARDS
Rule 45 authorizes issuance of a subpoena to
command a nonparty to produce designated documents, electronically stored information, or tangible
things in its possession, custody or control. Fed.R.Civ.P. 45(a)(1)(A)(iii). “[T]he scope of
discovery through subpoena is the same as that applicable to Rule 34 and the other discovery rules.”
Advisory Committee Notes (1970). Rule 34 states that
“[a] party may serve on any other party a request
within the scope of Rule 26(b).” Fed.R.Civ.P.
34(a). Rule 26(b) states that “[p]arties may obtain
discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense.” Fed.R.Civ.P.
26(b). “Relevant information need not be admissible
at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
Id. Indeed, “[a] district court whose only connection
with a case is supervision of discovery ancillary to an
action in another district should be especially hesitant
to pass judgment on what constitutes relevant evidence thereunder. Where relevance is in doubt ... The
court should be permissive.” Gonzales v. Google, Inc.,
234 F.R.D. 674, 681 (N.D.Ca.2006) (citing Truswal
Sys. Corp. v. Hydro-Air Engineering, Inc., 813 F.2d
1207, 1211-1212 (Fed.Cir.1987). Notwithstanding the
above, discovery is subject to certain limitations and is
not without “ultimate and necessary boundaries.” Id.
at 680 (citing Pacific Gas and Elec., Co. v. Lynch,
2002 WL 32812098, at *1 (N.D.Cal. August 19,
2002).
*3 Under Rule 26, a court must limit the frequency or extent of discovery if it determines any of
the following:
(i) the discovery sought is unreasonably cumulative
or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or
less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in
the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the
needs of the case, the amount in controversy, the
parties' resources, the importance of the issues at
stake in the action, and the importance of the discovery in resolving the issues.
Fed.R.Civ.P. 26(b)(2)(i), (ii) and (iii).
A nonparty commanded to produce documents
and tangible things may serve objections to any of the
documents or materials sought. Fed.R.Civ.P.
45(c)(2)(B). “A party or attorney responsible for issuing and serving a subpoena must take reasonable
steps to avoid imposing undue burden or expense on a
[nonparty] subject to a subpoena.” Fed.R.Civ.P.
45(c)(1). “Rule 26(c) and Rule 45(c) (3) give ample
discretion to district courts to quash or modify subpoenas causing ‘undue burden.’ “ Exxon Shipping Co.
v. U.S. Dept. of Interior, et al., 34 F.3d 774, 779 (9th
Cir.1994).
A nonparty withholding subpoenaed information
on the grounds of privilege or otherwise subject to
protection must serve a privilege log describing the
nature of the documents withheld so that the other
parties may assess the privilege or protection
claimed. Fed.R.Civ.P. 45(d)(2)(A)(ii).
DISCUSSION
I. Document Requests
The subpoena includes 13 specific document requests. YouTube describes the following four general
categories of documents:
(1) All documents and communications concerning
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YouTube, including those reflecting use of YouTube by BayTSP and its clients, monitoring of
YouTube by BayTSP and its clients, and comparisons of the responsiveness of YouTube to other online services (Document Request Nos. 1, 3, 4, 5, 8,
13);
(2) All documents and communications regarding
BayTSP's relationship with Viacom, including
documents regarding copyrights Viacom claims to
own and the litigations in New York (Document
Request Nos. 6, 9);
(3) All documents and communications regarding
the nature of BayTSP's monitoring and identification processes, its training of monitors, and its effectiveness or lack thereof with respect to identification of allegedly infringing materials online
(Document Request Nos. 2, 7, 10); and
(4) All documents sufficient to identify the entities
that have retained BayTSP to monitor the YouTube
service, and documents sufficient to identify prior
litigations in which BayTSP has provided testimony
(Document Request Nos. 11, 12).
With the exception of document request no. 4,
BayTSP has objected to all of the document requests
set forth above. In response to document request no. 4,
BayTSP stated that it had no responsive documents.
A. Relevance
1. Viacom-related Entities
*4 YouTube argues the above-specified document requests are relevant for a myriad of reasons.
First, documents that reflect monitoring by Bay TSP
of the YouTube website may refute plaintiffs' assertions that their burden for policing the website is too
high. Contrary to the obligations placed on content
owners by the DMCA, plaintiffs argue that their burden is too high. For its part, YouTube counters that the
documents will likely show that content owners, such
as plaintiffs, can effectively police their content online.
Second, the documents will likely show that YouTube
should not assume the burden to police its website and
recognize unauthorized content thereon. Indeed,
YouTube expects that documents may show that
plaintiffs selectively notified YouTube about what
content should be taken down while leaving still other
content on the website to reap certain promotional
benefits. Third, documents may show that BayTSP
itself, acting on behalf of Viacom and charged with
the specific task of identifying plaintiffs' content,
regularly made errors in sending DMCA notices to
YouTube, demanded removal of content plaintiffs did
not own, content that was fair use and content that was
otherwise authorized for uploading onto the site.
YouTube argues that such documents will undercut
plaintiffs' assertions that it should have had constructive knowledge of infringing content and therefore,
should be required to more proactively monitor its site
for infringing content. In other words, YouTube argues that it requires express guidance from copyright
owners to determine what content should remain on
the website and what content should be removed.
Fourth, YouTube expects that other documents sought
will refute plaintiffs' claims that it hinders copyright
owners' attempts to locate infringing content on its
website. YouTube states that the documents will likely
show that its efforts to comply with the DMCA are
exemplary and that it goes far beyond what the law
requires and what other online services have done, to
protect the rights of copyright owners. Finally, YouTube argues that, unlike other third parties, BayTSP
has volunteered to participate in the litigation by the
very nature of the services it has provided to plaintiffs.
Viacom designated BayTSP to police its content online and has identified the company in its initial disclosures as the witness solely knowledgeable about
the “identification of infringing content on YouTube.”
YouTube argues that BayTSP accepted a role in the
litigation and has even used the role to tout its services
in various press releases. And at least two depositions
of Viacom witnesses have included extensive references to BayTSP, its role in locating infringing content on the YouTube website and the takedown notices
that were sent on plaintiffs' behalf. Additionally,
YouTube speculates that BayTSP has been, and will
be, compensated by Viacom for most, if not all, of its
efforts to respond to the subpoena.
As a general matter, BayTSP has not disputed the
relevance of the document requests as they relate to
plaintiffs and Viacom-related entities. Accordingly,
the court finds that the document requests as they
relate to plaintiffs and Viacom-related entities are
relevant.
2. Non-Viacom Related Entities
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*5 BayTSP, however, does dispute the relevance
of the document requests as they relate to non-Viacom
related entities. At the hearing, BayTSP claimed that
any
relevance
related
to
any
of
the
non-Viacom-related entities was remote at best.
YouTube responded that the documents pertaining to
the non-Viacom related entities were relevant to show
that other clients of the company may have also instructed BayTSP that certain of their content remain
on the YouTube website. In this vein, YouTube contends that the documents underscore plaintiffs' claims
that YouTube is in the best position to discern what
content should remain on the website and what content should be removed.
BayTSP states that it expects to have had commenced
production on a rolling basis by November 21, 2008
and by the date of the scheduled hearing, expects that
many of the responsive documents will have been
produced.
YouTube's stated reasons for obtaining documents related to the non-Viacom related entities appear reasonably calculated to lead to the discovery of
admissible evidence. “Rule 26 does not require that
the information sought necessarily be directed at the
ultimate fact in issue, only that the information sought
be reasonably calculated to lead to admissible evidence in the underlying litigation.” Gonzales v.
Google, Inc., 234 F.R.D. at 683. Accordingly, the
court finds that the documents requests as they relate
to non-Viacom related entities are relevant too.
At the hearing, Viacom stated that “it was not
aware of any written undertaking [ ] to indemnify
BayTSP for the costs of complying with the subpoena
[and was] fairly confident that those understandings
would not reach the scope of the kind of production
that's been sought from BayTSP, which is far beyond
anything for which Viacom had retained BayTSP to
provide services.” Tr. 45:14-21. BayTSP also acknowledged that “Viacom has been paying and
reimbursing BayTSP for its legal costs and so forth for
responding.” Tr. 93:3-7.
B. Undue Burden
*6 Based on the above and at this juncture,
BayTSP has not established undue burden for production of documents regarding Viacom-related entities. BayTSP's request that YouTube bear the costs for
complying with the subpoena is denied without prejudice to a further motion for shifting costs. See,
e.g., OpenTV v. Liberate Techs., 219 F.R.D. 474, 479
(N.D.Cal.2003) (cost of extraction of source code to
be split equally); and Semsroth v. City of Wichita, 239
F.R.D. 630, 634-640 (D.Kan.2006) (detailed analysis
of cost-shifting).
1. Viacom-related Entities
BayTSP complains that the scope of the documents sought by the subpoena is overly broad and
originally encompassed over four terabytes of data.
Using common search terms to electronically filter the
collected data, yielded more than one million documents which were identified as responsive to the
various document requests. BayTSP claims that each
of these documents may average as many as 5 pages,
meaning there would be a total of more than 5 million
pages of documents. Undoubtedly, all of the documents require review and sorting, inter alia, for responsiveness and privilege. Plaintiffs themselves have
undertaken such a review.
BayTSP further complains that it has already
expended over 1900 hours in the last six months
searching and reviewing the documents. At present,
the number of responsive documents has been narrowed to 650,000 or half of the documents originally
identified through the electronic filter. In its papers,
YouTube speculates that BayTSP will be compensated by Viacom for all of its efforts to comply
with the subpoena. And therefore, BayTSP faces no
economic burden in complying with the subpoena.
Indeed, at the hearing, YouTube sought to confirm its
speculation, at numerous turns, by pressing plaintiffs
and BayTSP to confirm whether any such agreement
existed.
2. Non-Viacom related Entities
BayTSP further argues that the scope of the requests unduly burdens its business and will likely have
a chilling effect on its other customers who have come
to believe that their business dealings with BayTSP
would remain confidential. If the court were to compel
production of documents related to non-Viacom related entities, BayTSP would have to undertake the
lengthy and involved process of notifying its other
clients (namely HBO, Universal and Fox and other
entities) about the potential disclosure of documents
related to their businesses. Tr. 26: 3-12. BayTSP ar-
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gues that each of the non-Viacom related entities may
be compelled on their own to seek protective orders
from this court. Tr. 27: 14-18.
YouTube counters that the stipulated protective
order entered in the underlying litigation adequately
protects the interests of third parties such as the
non-Viacom related entities. To account for the notification process of non-Viacom related entities,
YouTube will agree to a staggered production date and
suggests June 15, 2009.
Without prejudice to other parties who may independently move for a protective order pursuant
to Rule 26(c), the court finds that BayTSP has not
established undue burden as it relates to non-Viacom
related entities. The court believes that the stipulated
protective order, or subsequent amendments agreed
thereto, by and between the parties, including BayTSP,
will protect the interests of its other clients.
BayTSP has not specified the scope of
non-Viacom related entities potentially affected by
such a production. Nonetheless, the court finds it
appropriate for YouTube to reimburse BayTSP for
costs of the production of documents for non-Viacom
related entities. To facilitate production, the court
suggests that the parties meet and confer on the scope
of production, including proposed search terms. See
Tr. 63:1-19. And to that end, BayTSP shall provide
YouTube with a roster of its other clients no later than
January 30, 2009. Having reviewed the roster, YouTube shall notify BayTSP whether it seeks responsive
documents related to any of BayTSP's other clients no
later than February 13, 2009.
II. Format
YouTube complains that BayTSP has made certain of its documents available on two computer terminals during regular business hours. Therefore,
YouTube is constrained to conduct its review and
print what it wants at the offices of BayTSP's counsel.
YouTube takes no comfort that BayTSP, and perhaps
Viacom, will know what documents it has reviewed,
what documents it has focused on and what documents it has printed. Instead, YouTube requests that it
be allowed electronic access to the Kroll ontrack database on which the documents exist, be provided with
DVDs or other electronic medium of the entire responsive database so that it may upload the database
into its own database. This suggested format is con-
sistent with an amended ESI plan governing the underlying litigation. BayTSP states that conversion of
the data files onto DVDs or other electronic medium is
costly. Indeed, BayTSP speculates the cost could
approximate six to ten cents per page to upload. Unless YouTube is willing to absorb this cost, BayTSP
cannot provide the documents in the requested format.
*7 The court agrees that to require YouTube to
view that vast amount of documents at the offices of
BayTSP's counsel with certain temporal cut-offs is
unreasonable. See, e.g., Rule 34(a) requires production in a “reasonably usable form.” Fed.R.Civ.P. 34(a).
At the hearing, the parties agreed to further meet and
confer on the format of production, including discussing with Kroll the actual cost of obtaining documents on the database and/or creating certain load files.
Tr. 52:1-15. In light of arguments at the hearing regarding the potential accessibility to electronic documents viewed by YouTube, the court advises the
parties to take appropriate measures so that others,
intentionally or inadvertently, not determine what
documents were viewed, what documents were focused on and what documents were printed. See, e.g.,
Tr. 32:8-25; 33: 1-25; 34:1-25; 35:14-25; 36: 3-18,
24-25; 37:1-15; 38: 1-6, 19-22. Accordingly, the parties shall further meet and confer on the format of
production. “[I]t is in the interests of each of the parties to engage in this process cooperatively.” Mancia v.
Mayflower Textile Servs. Co., et al., 253 F.R.D. 354,
365 (D.Md.2008). In the event, the parties are unable
to agree on the format of production, YouTube may
notice a motion on shortened time for a further ruling
from this court, on at least, this sole and discrete issue.
III. Protective Order
At the hearing, the parties agreed to further meet
and confer on a stipulated protective order to address
BayTSP's concerns about its source code and
non-Viacom related entities.FN6 Accordingly, the parties shall meet and confer to determine whether additional provisions are necessary to further facilitate
production. Unless the parties agree that a stipulated
protective order relating to BayTSP's other clients
shall govern from this district, any further provisions
shall be approved by the court presiding in the underlying matter. See Fed.R.Civ.P. 26(c) (protective
order may be sought in the court where the action is
pending).
FN6. To the extent the parties agree that
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production of BayTSP's source code can be
limited to documents showing how its technology searches the YouTube website, such a
production would be in compliance with this
court's order.
CONCLUSION
For the foregoing reasons, defendants' motion to
compel is granted. Third-party BayTSP shall produce
responsive documents related to the Viacom-related
entities no later than March 6, 2009 and shall produce
responsive documents related to non-Viacom related
entities no later than July 15, 2009. In addition,
BayTSP shall serve privilege logs that relate to each of
the productions on the respective dates set forth above.
BayTSP shall also serve an affidavit which sets forth
the methodolog(ies) used to respond to the subpoena.
The parties shall meet and confer on the format of
production and whether additional provisions to the
stipulated protective order may be needed.
IT IS SO ORDERED.
N.D.Cal.,2009.
Viacom Intern., Inc. v. YouTube, Inc.
Not Reported in F.Supp.2d, 2009 WL 102808
(N.D.Cal.)
END OF DOCUMENT
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