Plan Pros v. Zych et al

Filing 80

MEMORANDUM AND ORDER granting 40 Defendant's Motion to Compel. On or before March 19, 2009, the Zych Defendants shall produce, for inspection or copying all floor plans and elevations for houses it has commenced to build from January 1, 2003, to this date, including without limitation blueprints, drawings, preliminary sketches and derivatives, in the condition and place they are kept in the ordinary course of business. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA PLAN PROS, INC., ) ) Plaintiff, ) ) v. ) ) BRIAN ZYCH, d/b/a ZYCH ) CONSTRUCTION, TRACY ZYCH, ) ZYCH CONSTRUCTION L.L.C., ) KENNETH TINNES, d/b/a KT ) DESIGN and KEN TINNES ) RESIDENTIAL DESIGN, CBS HOME ) REAL ESTATE COMPANY, WILSON ) MARTINEZ and CORA MARTINEZ, ) ) Defendants. ) ______________________________)

8:08CV125

MEMORANDUM AND ORDER

This matter is before the Court on plaintiff Plan Pros, Inc.'s motion to compel Brian Zych, Tracy Zych, and Zych Construction, L.L.C. ("Zych Defendants") to produce documents (Filing No. 40). Upon review of the motion, the briefs and

evidentiary submissions of the parties, and the applicable law, the Court finds that the motion should be granted. This is a case alleging infringement of Plan Pros's copyrights by the Zych Defendants. Plan Pros moves to compel the

Zych Defendants to produce for inspection and copying all floor plans and elevations for houses it has ever commenced to build, including blueprints, drawings, preliminary sketches, derivatives and the like going back to January 1, 2003 (See Filing No. 40). The Zych Defendants argue that Plan Pros's requests are overbroad, unduly burdensome, and not reasonably calculated to lead to discoverable information (Filing No. 46, at 4-9).

Generally, "[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)(1). "For good cause, the

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." Rule 26(b)(1) has been construed liberally "to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." (1978). Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 "Some threshold showing of relevance must be made before Id.

parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case." F.2d 377, 380 (8th Cir. 1992). requirement [s]hould be construed liberally and with common sense, rather than in terms of narrow legalisms. No one would suggest that discovery should be allowed of information that has no conceivable bearing on the case. But it is not too strong to say that a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action. Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, 8 Fed. Prac. & Proc. Civ.2d § 2008 (internal citations omitted). -2Hofer v. Mack Trucks, Inc., 981 However, this relevancy

If the moving party meets its burden of demonstrating relevance, the burden is then on "the party seeking nondisclosure or a protective order to show good cause." Penthouse

Int'l, Ltd. v. Playboy Enter., Inc., 663 F.2d 371, 391, (2nd Cir. 1981); see also Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999) (quoting Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir. 1990) (explaining that if the moving party meets its threshold burden of demonstrating relevance, "discovery is not permitted where no need is shown, or compliance would be unduly burdensome, or where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information")). Such good cause cannot be demonstrated by

conclusory or stereotyped statements, good cause must be based on particular and specific demonstrations of fact. See

Miscellaneous Docket Matter #1, 197 F.3d at 926 (8th Cir. 1999) (citing General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973)); accord, In re Terra Int'l, Inc., 134 F.3d 302 (5th Cir. 1998); Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3rd Cir. 1995). More particularly, good cause can be

established "when it is specifically demonstrated that disclosure will cause a clearly defined and serious injury. Broad

allegations of harm, unsubstantiated by specific examples, however, will not suffice." (citations omitted). Glenmede Trust Co., 56 F.3d at 483

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Plan Pros has pled, for example, that the Zych Defendants "copied at least one of its home designs" and that they infringed copyrights in "one or more" of its plans (See Filing No. 1, at ¶¶ 14, 19). The plans the Zych Defendants used

to build their houses are plainly relevant to these allegations.1 The Zych Defendants argue that only one house is at issue in this case. (See generally Filing No. 46.) They then "indicated that

if Plaintiff had a good faith basis to suggest that the Zychs had infringed Plan Pros' copyright with respect to any of the 50 houses not at issue in this case, Plaintiff should produce that information for the Zychs' review." (Filing No. 46, at 2.)

However, the Zych Defendants may not define the scope of Plan Pros's discovery. Plan Pros's allegations suggest that more than The request is

one house may infringe upon their copyrights.

therefore relevant to the claims and defenses in this case. There is no basis for the Zych Defendants to require Plan Pros to show a good faith basis before complying with their discovery requests. To the contrary, as the party resisting discovery it

is the Zych Defendants, not Plan Pros, who have the burden of showing good cause for noncompliance. The Zych Defendants argument that Plan Pros's discovery requests are overbroad, unduly burdensome, and not reasonably

Dellacasa, LLC v. John Moriarty & Assocs. of Fla., Inc., 2007 WL 4117261 (S.D. Fla. 2007), relied upon by the Zych Defendants here, is inapposite. The complaint in that case drew the issues much more narrowly than Plan Pros has done here. (See generally, Filing No. 49, Ex. B.) -4-

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calculated to lead to discoverable information is unavailing. The request is overbroad only if seen through the narrow lens of the Zych Defendants' view of what the issues in this case are. Nothing in Plan Pros's complaint or amended complaint limits this case to a single house. (See Filing Nos. 1, 56.)2 Nor is the

request unduly burdensome.

Plan Pros prays only for access to It is the Zych

the records on an "as is, where is" basis.

Defendants' burden to show why this request is unduly burdensome, and they have provided no evidence that it is. Finally, the

request is reasonably calculated to lead to discoverable information. Inspection of the records could lead, for example,

to discovery of evidence that the Zych Defendants had violated copyrights when they built other houses, or it could lead to witnesses that may possess other evidence relevant to the claims or defenses in this case. reasonably calculated. granted. Accordingly, IT IS ORDERED that plaintiff's motion to compel is granted. On or before March 19, 2009, the Zych Defendants shall The Court finds the request to be

Plan Pros's motion should therefore be

produce, for inspection or copying, all floor plans and elevations for houses it has commenced to build from January 1, 2003, to this date, including without limitation blueprints,

The Court also finds the request could relate to whether the alleged infringement was willful or whether the plans at issue were independently created. -5-

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drawings, preliminary sketches, and derivatives, in the condition and place they are kept in the ordinary course of business. DATED this 5th day of March, 2009. BY THE COURT: /s/ Lyle E. Strom ________________________________ LYLE E. STROM, Senior Judge United States District Court

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