Cody Foster & Co., Inc. v. Urban Outfitters, Inc. et al

Filing 52

ORDER granting in part and denying in part 51 Oral Motion to compel responses. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CODY FOSTER & CO., INC.,
a Nebraska corporation,

Case No. 8:14-cv-80

Plaintiff,
v.
URBAN OUTFITTERS, INC.,
a Pennsylvania corporation,
d/b/a TERRAIN AT HOME and FREE
PEOPLE,

ORDER

ANTHROPOLOGIE, INC.,
a Pennsylvania corporation,
d/b/a ANTHROPOLOGIE DIRECT, LLC,
and
URBN UK LIMITED,
a United Kingdom corporation,
d/b/a ANTHROPOLOGIE U.K.,
Defendants.
THIS MATTER came before the Court on February 19, 2015 upon the oral motion
(the “Motion”) of Defendants Urban Outfitters, Inc., Anthropologies, Inc. and URBN UK
Limited (collectively, “Defendants”) to compel responses by Plaintiff Cody Foster & Co., Inc. to
Defendant Urban Outfitters, Inc.’s First Set of Interrogatories to Plaintiff and Defendants’ First
Set of Requests for Production of Documents to Plaintiff. The Court, being fully advised, hereby
finds as follows:
IT IS HEREBY ORDERED that Defendants’ Motion is granted, in part, and denied, in
part, as follows:
1.

4837-8813-7506.1

Interrogatory No. 3

Defendants seek to compel Plaintiff’s response to Interrogatory No. 3, which asks
Plaintiff to “[i]dentify any social media site(s) or account(s) which [Plaintiff] or its employees
have used to post or exchange information for the past two years.”
Plaintiff is ordered to conduct a search for any social media sites or accounts that Plaintiff
or its employees have used to post or exchange information for the past two years, describe in
detail the parameters of its search and identify all social media sites or accounts located as a
result of its search.
2.

Request for Production No. 19

Defendants seek to compel Plaintiff’s response to Request for Production No. 19, which
requests “[Plaintiff’s] income tax returns, including any supporting documentation, from 2010 to
the present.”
Plaintiff is ordered to produce its tax returns for the years 2011 through 2014. The tax
returns are to be produced for attorneys’ eyes only. Defendants must obtain permission from the
Court prior to disclosing the tax returns to anyone other than their attorneys or otherwise using
them in this proceeding.
3.

Request for Production No. 20

Defendants seek to compel Plaintiff’s response to Request for Production No. 20, which
requests “[Plaintiff’s] financial statements which show gross revenue, net revenue, profits, profit
margin, balance sheets, profit and loss statements and other financial statements from 2010 to
present.”
The Court finds that any relevant information contained within documents responsive to
this Request is likely to be contained within the tax returns responsive to Request No. 19. As
such, Plaintiff is not required to produce documents responsive to this Request.

2

4.

Request for Production No. 48

Defendants seek to compel Plaintiff’s response to Request for Production No. 48, which
seeks “[a]ny and all documents which evidence or otherwise relate to the damages Plaintiff is
claiming in this action.”
Plaintiff is ordered to produce any documents that evidence or otherwise relate to its
claim for damages that have not already been produced in this matter, including its claim for
actual damages resulting from Defendants’ alleged copyright infringement.

Specifically, if

Plaintiff possesses documentation containing performance data related to the ornaments that are
the subject of Plaintiff’s copyright claim, Plaintiff must produce such documents. If Plaintiff
does not possess any performance data for the subject ornaments or other documents evidencing
or relating to its claim for actual damages, Plaintiff must confirm this in writing.
5.

Requests for Production Nos. 10 and 11

Defendants seek to compel Plaintiff’s response to Request for Production Nos. 10 and 11.
Request for Production No. 10 seeks “[a]ny and all documents related to any statement, claim,
assertion, representation and/or expression of fact or opinion that [Plaintiff] had copied the
designs of another artist or designer.” Request for Production No. 11 seeks “[a]ny and all
documents which evidence or otherwise relate to any claim, complaint, representation, and/or
expression of fact or opinion made by any person or entity that [Plaintiff’s] merchandise
infringes any copyright, patent, design, trade name, or trademark, or any similar offense, during
the past five (5) years.”
Plaintiff is ordered to produce documents related to any claims, complaints, assertions,
representations and/or expressions of fact or opinion responsive to Request Nos. 10-11 made
during 2013.

3

6.

Request for Production No. 23

Defendants seek to compel Plaintiff to respond to Request No. 23 which seek s “[a]ll
documents which evidence or otherwise relate to any product, merchandise, or work of art
created by any other artist that [Plaintiff] or anyone affiliated with [Plaintiff] viewed on the
internet or purchased within the past five (5) years.”
Plaintiff is not required to respond to this Request due to the Court’s concerns regarding
its over breadth and relevance. This ruling is without prejudice to Defendants’ right to submit a
revised or narrowed request involving some of the information in Request for Production No. 23.
Plaintiff shall serve the responses required by this Order within fourteen (14) days from
the date of this Order.

February 24, 2015.

BY THE COURT:

_______________________
Cheryl R. Zwart
United States Magistrate Judge

4