Flava Works, Inc. v. Gunter et al

Filing 239

MEMORANDUM OPINION Signed by the Honorable John F. Grady on October 24, 2013. Mailed notice(cdh, )

10-6517.132-JCD

October 24, 2013

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FLAVA WORKS, INC.,
Plaintiff,
v.
MARQUES RONDALE GUNTER d/b/a
myVidster.com; SALSAINDY, LLC
d/b/a myVidster.com;
JOHN DOES 1-26; and
LEASEWEB B.V. d/b/a LeaseWeb.com,
Defendants.

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No. 10 C 6517

MEMORANDUM OPINION
Before the court is the motion of plaintiff/counter-defendant
Flava Works, Inc. to compel responses to certain interrogatories
and document requests. For the reasons explained below, the motion
is granted in part and denied in part.
DISCUSSION
Plaintiff moves for an order compelling defendants to produce
certain categories of discovery.

We will discuss each category as

it has been framed by plaintiff.
•

The most significant issue is defendants’ objection to

several interrogatories and document requests on the ground that
they “seek information not limited to myVidster’s back-up copy
functionality.”

(Defs.’ Resp. to Pl.’s First Set of Doc. Reqs.;

Defs.’ Resp. to Pl.’s Am. First Set of Interrogs.)

Defendants

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assert that “[a]s a result of the Seventh Circuit’s decision” in
this

case,

“the

only

claims

now

remaining

myVidster’s back-up functionality.”

.

.

.

relate

to

(Defs.’ Resp. to Pl.’s Am.

Mot. to Compel (“Defs.’ Resp.”) at 2.)

In defendants’ view, “the

Seventh Circuit plainly held that Plaintiff’s theories of liability
arising from myVidster’s linking functionality, which were each
predicated on the assertion that myVidster’s linking users were
direct infringers, failed as a matter of law.”
2.)

(Defs.’ Resp. at

Defendants also argue that the current complaint, plaintiff’s

Sixth

Amended

Complaint,

“only

asserts

myVidster’s back-up copy functionality.”

claims

concerning

(Defs.’ Resp. at 2.)

Plaintiff denies that it has so limited its claims, and it points
to language in the Court of Appeals’s opinion indicating that the
door was left open to the possibility that defendants could be
liable as indirect infringers of plaintiff’s public-performance
right, based on their linking service.
We agree with plaintiff. Although the Sixth Amended Complaint
is not a model of clarity, we cannot say that the claims asserted
therein are limited to defendants’ backup service.

Furthermore, a

careful reading of the Seventh Circuit’s decision reveals that the
Court did not foreclose plaintiff from recovering on an indirectinfringement

theory

relating

to

myVidster’s

linking

service.

Discovery relating to defendants’ linking service is therefore
within the proper scope of discovery, and defendants’ objections
are overruled.

Defendants’ contention that plaintiff seeks “every

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scintilla of personal information” about myVidster’s users, Defs.’
Resp. at 3 n.2, is an exaggeration.

Plaintiff seeks information

about the users that is relevant to their use of and experience
with myVidster.
•
the

Plaintiff argues that defendants’ general objections to

interrogatories

“stricken.”

and

requests

for

production

should

be

Defendants have not responded to this argument.

We

will not “strike” the general objections because they are not
contained

within

impermissible.

pleadings,

but

we

will

disregard

them

as

Because of their lack of specificity, general

objections do not accomplish anything useful. They serve merely to
add unnecessarily to the cost of litigation.

If defendants have

withheld any documents or failed to answer an interrogatory solely
in reliance on a general objection--and they should tell plaintiff
whether they have done so--they will have to produce the withheld
documents or answer the interrogatory or interrogatories.
•

Plaintiff contends that defendants “should be ordered to

answer Interrogatory No. 7.”

(Pl.’s Am. Mot. to Compel at 4.)

That interrogatory states: “Identify the number of myVidster.com
users who have the backup service, the amount of backup storage
space each user has, and the user’s screenname.”

Defendants have

answered: “Subject to its general objections, myVidster states that
the back-up service was disabled in September 2011, and has since
remained disabled.

Accordingly, there are currently zero back-up

service subscribers and there is zero amount of storage space

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available per user.”
Interrogs. at 7.)

(Defs.’ Resp. to Pl.’s Am. First Set of

Aside from the improper reliance on the general

objections, which we have discussed above, the remainder of the
answer is proper. The interrogatory uses the present tense--“have”
and “has,” and defendants have answered that no users currently
have the backup service or storage space.
•
label

Plaintiff contends that defendants should be ordered to
the

documents

they

have

produced

to correspond

to

the

categories in plaintiff’s document requests. Federal Rule of Civil
Procedure 34(b)(2)(E)(i) provides that “[a] party must produce
documents as they are kept in the usual course of business or must
organize and label them to correspond to the categories in the
request.” Defendants state that they have “repeatedly explained to
Plaintiff that all of [defendants’] documents have been produced as
they are kept in the ordinary course of business.”
at 6.)
34.

(Defs.’ Resp.

This kind of production would be in compliance with Rule

Plaintiff does not reply, so it appears that this request is

moot.
•

Plaintiff would like defendants to “propose a protective

order reasonable in scope.”

(Pl.’s Am. Mot. to Compel at 2-3.)

This request is now moot; after plaintiff’s motion was filed, we
considered the parties’ submissions on the issue and entered a
protective order.

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•

Plaintiff complains that defendants have not produced a

privilege log as required by Federal Rule of Civil Procedure 26.
Defendants state in their response that they served plaintiff with
a privilege log “[c]oncurrent with” their response.
at 6.)

(Defs.’ Resp.

In its reply, plaintiff does not address the privilege-log

issue, so we will assume that the request is now moot.
•

Plaintiff contends that defendants should be ordered to

answer Interrogatory No. 4, which seeks information about the
circumstances

and

substance

of

every

“conversation

or

communication” defendants have had “relating to” the complaint,
counterclaim, or affirmative defenses. Defendants respond that the
request is moot because they have served a supplemental response
indicating

that

they

have

not

had

any

such

“non-privileged”

communications. Plaintiff also requests that defendants respond to
Document Request 35, which sought “[c]opies of all statements made
by any party or witness”; plaintiff adds that it seeks “only
statements related to the claims and defenses.” (Pl.’s Am. Mot. to
Compel at 6.) Defendants’ response is that although the request as
written is overbroad (we agree), they have “not withheld any nonprivileged copies of statements made by any party or witness
relating to this case.”

(Defs.’ Resp. at 5.)

We take this

statement to mean that they have produced every non-privileged
statement that they have.

Plaintiff does not reply to defendants’

responses, so these issues appear to be moot.

But, if there are

privileged communications that are responsive to either discovery

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request,

as

defendants’

responses

seem

to

imply,

those

communications must be listed on their privilege log.
•

Plaintiff seeks an order compelling defendants to produce

their e-mail communications with their server companies as well as
documents

related

webhosting
Document

to

service

Requests

those

companies’

contracts
9

and

32.

with

terminations

of

their

myVidster,

This

in

response

to

discovery

is

relevant

to

defendants’ counterclaim for tortious interference with contract.
Defendants respond that they have produced all “non-privileged”
communications and correspondence between them and their four
server companies.

(Defs.’ Resp. at 6.)

In reply, plaintiff

asserts that defendants have not produced any of the contracts
between them and the server companies. If these contracts have not
already

been

plaintiff

by

produced,
October

defendants
31,

2013.

shall
Any

produce

them

responsive

to

the

privileged

communications should be listed on defendants’ privilege log.
•

There are two issues raised by plaintiff for the first

time in its reply brief.

Plaintiff contends that defendants have

failed to produce documents relating to SalsaIndy, LLC in response
to supplemental requests for production and that Gunter has failed
to produce “original source documents” containing data associated
with the removal of certain videos from myVidster. (Pl.’s Reply at
4-7.)

Plaintiff did not raise either of these issues in its

motion, so they have not been adequately briefed; moreover, we are

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not convinced that the plaintiff has satisfied its meet-and-confer
obligations on these issues.
CONCLUSION
For

the

foregoing

reasons,

the

amended

motion

of

plaintiff/counter-defendant Flava Works, Inc. to compel responses
to certain interrogatories and document requests [218] is granted
in part and denied in part.

A status hearing is set for November

6, 2013 at 11:00 a.m.

DATE:

October 24, 2013

ENTER:

_______________________________________________
John F. Grady, United States District Judge