Asevedo v. NBCUniversal Media, LLC et al

Filing 210

Minute Order. Proceedings held before Magistrate Judge Daniel E. Knowles, III: Motion Hearing held on 6/19/2013 re 132 MOTION to Quash Rule 30(b)(6) Depositions filed by NBCUniversal Media, LLC, SYFY Media Productions, LLC. ORDERED that the 132 Motion to Quash is GRANTED. (plh, )

MINUTE ENTRY
KNOWLES, M.J.
JUNE 19, 2013
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PRESTON ASEVEDO

CIVIL ACTION

VERSUS

NO. 12-2005

NBCUNIVERSAL MEDIA, L.L.C., ET AL.

SECTION "I" (3)

On this date, the Motion to Quash Rule 30(b)(6) Depositions on Behalf of NBCUniversal
Media, L.L.C. and SYFY Media Productions, L.L.C. [Doc. #132] came on for oral hearing before
the undersigned. Present were Brad Harrigan and Simeon Reimonenq on behalf of plaintiff and
Lesli Harris and Dalton Courson on behalf of NBCUniversal Media, L.L.C. and SYFY Media
Productions, L.L.C. ("the NBC defendants"). For the reasons stated on the record and those outlined
below,
IT IS ORDERED that the Motion to Quash Rule 30(b)(6) Depositions on Behalf of
NBCUniversal Media, L.L.C. and SYFY Media Productions, L.L.C. [Doc. #132] is GRANTED.
I.

Background

The complaint alleges as follows. This lawsuit arises out of Asevedo’s efforts to protect
his copyrighted artwork from the on-going infringements by all defendants. Plaintiff is a

MJSTAR(00:08)

professional artist and illustrator. In 2005, plaintiff conceived and created a two-dimensional
artwork entitled “Comedy Tragedy Skulls” ("the Artwork"), a copy of which is depicted in the
complaint. The Artwork is wholly original and constitutes copyrightable subject matter. All rights,
title and interest in the Artwork are owned by plaintiff. Plaintiff owns and holds United States
Copyright Registration No. VA 1-819-216 for the Artwork issued by the United States Copyright
Office.
The NBC defendants produced and distributed a reality television show on the Syfy network
called Dream Machines. Asevedo has learned that each of the defendants have prominently and
blatantly copied and published plaintiff’s Artwork on the Dream Machines television show without
permission. The stars of the Dream Machines show typically wore t-shirts that depicted plaintiff’s
Artwork, the infringing work was used on or in connection with the finished vehicles, and a colossal
reproduction of plaintiff’s Artwork was often shown on the roof of the Parker Brothers Defendants’
shop. The infringing use of plaintiff’s Artwork on the television show was so pervasive that it was
rare for 30 seconds to pass on the 40+ minute show without the infringing work appearing in one
form or another.
In addition, the facts available to plaintiff indicate that the NBC defendants have played an
active role in the infringements. They have used plaintiff’s Artwork on Syfy’s interactive website
accessible to Louisiana residents. Also, the NBC defendants hosted and published full episodes of
the Dream Machines television show that evidence numerous instances of the infringements at the
following website: http://www.syfy.com/videos/Dream%20Machines/. Moreover, NBCUniversal
appears to exert creative influence on the Dream Machines show: In one episode, the Parker
Brothers were commissioned to build a concept vehicle made to look like alien technology for the

2

red carpet premiere of Universal Pictures’ 2012 movie “Battleship.” Universal Pictures is a division
of NBCUniversal.
Plaintiff thus sued defendants in this Court for copyright infringement, unfair competition,
negligence under Louisiana Civil Code article 2315, and unjust enrichment. Some of the defendants
moved to dismiss for lack of personal jurisdiction and improper venue. The District Court dismissed
without prejudice the motion to dismiss and denied the motion to transfer venue.
II.

The Parties' Contentions
The Court does not delve deeply here into the arguments of the parties but reproduces only

those arguments needed for the resolution of the motion.
A.

The NBC Defendants' Motion

Plaintiff unilaterally noticed the NBC defendants' Rule 30(b)(6) depositions and set them on
May 30, 2013 in New Orleans. Citing case law, the NBC defendants first argue that the depositions
should be held at corporate headquarters in New York and Los Angeles. They maintain that plaintiff
must show exception and peculiar circumstances to justify taking the depositions elsewhere. There
are no corporate agents in Louisiana, and the witnesses responsive to the deposition notice are
located in New York and California. The NBC defendants ask the Court to quash the depositions
on this ground alone.
Considering the 64 areas in the deposition notices, the NBC defendants also contend that
plaintiff failed to give them reasonable notice when he propounded the notices in mid-May. They
note that they have informed plaintiff on numerous occasions that they are prepared to schedule
depositions after the discovery deadline, if necessary.
Citing numerous of the individual deposition topics, they next maintain that many of them

3

are incurably objectionable. The NBC defendants contends that all of the topics (Nos. 1-32 in each
deposition notice) fail to describe with reasonable particularity the information sought. They
variously contend that the topics are overbroad, vague, irrelevant, unduly burdensome, beyond the
scope of the litigation and seek information protected by the attorney-client and/or work-product
privileges.
B.

Plaintiff's Opposition

Arguing that the NBC defendants repeatedly failed to provide dates for the depositions,
plaintiff contends that he had no choice but to unilaterally set them in New Orleans. Plaintiff
maintains that the NBC defendants have not engaged in good-faith discovery but are obstructionists.
Plaintiff notes that they have only agreed to produce one representative in New York as to
advertising and marketing and one representative in Los Angeles as to the production of Dream
Machines. Plaintiff notes that they still maintain all of their objections to the deposition topics apart
from these three areas of inquiry. Because the NBC defendants have been in bad faith, plaintiff asks
that the Court order them to produce the representatives in New Orleans.
Citing each of the 32 deposition topics, plaintiff then explains why each one is relevant, why
there is no attorney-client privilege, and why the NBC defendants should possess all of the
information that he seeks.
C.

The NBC Defendants' Reply

The NBC defendants have designated as its Rule 30(b)(6) witnesses (1) Chris Czarkowski
and made him available on June 28, 2013 in New York and (2) Janice Ferrell and made her available
on June 26, 2013 in Los Angeles.
The NBC defendants note that plaintiff has been forced to admit that he does not own the

4

copyright of the Artwork, and any cause of action relating to the Skulls copyright belongs to the
bankruptcy trustee. The NBC defendants contend that because plaintiff has no standing to pursue
such a claim, he is not entitled to discovery on that claim. The District Court will thus grant their
motion to dismiss, and it would be improper to require them to prepare a witness to respond to
discovery on such a claim. Even if full dismissal is not obtained, the grant of the motions will
narrow the issues for discovery.
With regard to privilege, the NBC defendants contend that they should not have to sit
through depositions simply to assert the privilege.
The NBC defendants have stated under oath that they have no knowledge related to
Deposition Topic Nos. 1, 3, 4-7, 9, 12-16, 25 and 30-32. They argue that they should not have to
verbalize this lack of knowledge at a deposition.
III.

Law and Analysis
The "'deposition of a corporation by its agents and officers should ordinarily be taken at its

principal place of business . . . especially when, as in this case, the corporation is the defendant.'"
Reich Album & Plunkett, L.L.C. v. Wheat, Opperman & Meeks, P.C., No. 06-10850, 2007 WL
1655677, at *4 (E.D. La. June 4, 2007) (quoting Salter v. Upjohn, 593 F.2d 649, 651 (5th Cir.
1979)).
The presumption that a corporation's principal place of business is the default location for
its deposition
is based on the concept that it is the plaintiff who brings the lawsuit and who
exercises the first choice as to forum. Courts have determined that this presumption
satisfies the Rule 26(c) requirement of good cause. . . . A party may overcome the
presumption, however, by showing that peculiar circumstances justify conducting the
deposition at a location other than the corporation's principal place of business.

5

Tailift USA, Inc. v. Tailift Co., No. 03-CV-0196-M, 2004 WL 722244, at *1 (N.D. Tex. Mar. 26,
2004) (citing Salter, 593 F.2d at 651); Resolution Trust Corp. v. Worldwide Ins. Mgmt. Corp., 147
F.R.D. 125, 127 (N.D. Tex. 1992), aff'd, 992 F.2d 325 (5th Cir. 1993)); accord Fuller v. Summit
Treestands, L.L.C., No. 07-CV-0330A(M), 2008 WL 3049852, at *2 (W.D.N.Y. Aug. 1, 2008).
Some district courts have considered the following factors in deciding whether sufficient
circumstances have been shown to overcome the presumption:
1. Counsel for the parties are located in the forum district;
2. The deposing party is seeking to depose only one corporate representative;
3. The corporation chose a corporate representative that resides outside the location
of the principal place of business and the forum district;
4. Significant discovery disputes may arise and there is an anticipated necessity of
the resolution by the forum court; and
5. The claim's nature and the parties' relationship is such that “an appropriate
adjustment of the equities favors a deposition site in the forum district.”
Tailift USA, Inc., 2004 WL 722244, at *2 (quoting Resolution Trust Corp., 147 F.R.D. at 127).
Neither party addressed any of the five factors, but the Court's review of them reveals that
the depositions should take place in New York and Los Angeles. While counsel for the parties are
located in the forum district, as noted below, "the convenience of counsel is less compelling than
any hardship to the witness." Morin, 229 F.R.D. at 363 (quotations omitted) (citing Devlin v.
Transp. Comm'ns Int'l Union, No. 95-CV-0742, 2000 WL 28173, at *3-4 (S.D.N.Y. Jan. 13, 2000)).
And while the NBC defendants propose two corporate representatives in two locations and chose
these representatives, they had no choice but to do so. Neither NBC defendant has an agent in this
district, and both are located at their principal places of business. Significant discovery disputes will
may arise given the numerous discovery disputes that have already arisen and that this Court has
resolved. But that is nothing that a telephone call to the Court can not fix, although counsel are
urged to cooperate and to keep such issues to a minimum. The Court lastly finds that the nature of
6

the claims and the parties' relationship do not require an appropriate adjustment of the equities.
Plaintiff has failed to carry his burden to show exceptional or peculiar circumstances that
would negate the presumption, which aligns with the NBC defendants' preference and the
convenience of the witnesses, that the depositions should take place in New York and Los Angeles.
Fuller, 2008 WL 3049852, at *2; Morin v. Nationwide Fed. Credit Union, 229 F.R.D. 362, 363
(D.Conn. 2005); Tailift USA, Inc., 2004 WL 722244, at *2 (citing Salter, 593 F.2d at 652). Having
chosen the forum, “it is the plaintiff who is generally required to bear any reasonable burdens of
inconvenience that the action represents. Moreover, the convenience of counsel is less compelling
than any hardship to the witnesses.” Morin, 229 F.R.D. at 363 (quotations omitted) (citing Devlin,
2000 WL 28173, at *3-4); Fed. Deposit Ins. Co. v. La Antillana, S.A., No. 88-CV2670, 1990 WL
155727, at * 1 (S.D.N.Y. Oct. 5, 1990)); accord Fuller, 2008 WL 3049852, at *2; Tailift USA, Inc.,
2004 WL 722244, at *2. The Court quashes the depositions on this ground alone.
In light of the depositions scheduled on June 26 and 28, 2013 – which will go forward as
scheduled, either in person or by video conference – plaintiff shall re-propound the deposition
notices no later than Monday, June 24, 2013. In addition, plaintiff shall comply with the
following guidelines when drafting the deposition notices:
1.

Plaintiff shall place a temporal limitation in each deposition topic relevant to the time
periods in dispute in this lawsuit.

2.

Topic Nos. 23 is stricken as not reasonably calculated to lead to the discovery of
admissible evidence.

3.

Topic Nos. 17-21, 26 and 27 are likewise stricken. In re Indep. Serv. Org. Antitrust
Litig., 168 F.R.D. 651, 654 (D. Kan. 1996) ("Even under the present-day liberal

7

discovery rules, Xerox is not required to have counsel “marshal all of its factual
proof” and prepare a witness to be able to testify on a given defense or
counterclaim.").
4.

All deposition topics must seek information related directly to the Artwork, and not
simply the Dream Machines show. Specifically, any deposition topic that seeks
information on revenues derived by the NBC defendants must be limited to revenues
derived from the NBC defendants' alleged infringement of the Artwork.

5.

Topic No. 25 – which seeks information of all insurance policies issued to the NBC
defendants and in effect between 2010 and 2013 – must be re-phrased. An insurance
policy that covers anything unrelated to Dream Machines or the Artwork is not
reasonably calculated to lead to the discovery of admissible evidence.

As a final caveat, the Court reminds plaintiff of his duty under the federal rules and the case
law to describe with "reasonable particularity" the information that he seeks. Should the corporate
representatives of the NBC defendants possess no knowledge as to a particular deposition topic –
and no corporate representative would have such knowledge – the Court reminds the NBC
defendants that "I don't know" is an acceptable response to a question at a deposition, should
circumstances so warrant. In addition, should the NBC defendants seek to assert the attorney-client
and/or work-product privileges at the depositions, they may of course do so. Fed. R. Civ. P.
30(c)(2). That is not an issue that the Court can resolve at this time; the Court can in no way divine
the particular questions that plaintiff may ask at the depositions.

DANIEL E. KNOWLES, III
8

UNITED STATES MAGISTRATE JUDGE

9