Corbello v. DeVito

Filing 619

ORDER Denying 545 Motion to Compel. Signed by Magistrate Judge Peggy A. Leen on 10/12/2011. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DONNA CORBELLO,

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Plaintiff,
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vs.
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THOMAS GAETANO DEVITO, et al.,
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Defendants. )
__________________________________________)

Case No. 2:08-cv-00867-RCJ-PAL
ORDER
(Emg. Mot. Compel - Dkt. #545)

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Before the court is an Emergency Motion by Defendant Eric S. Elice to Compel Further

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Responses by Plaintiff to Interrogatories; Memorandum of Points and Authorities in Support Thereof

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[Declaration of Eva S. Neuberg in Support of Motion filed Concurrently] (Dkt. #545). The court has

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considered the Motion, Plaintiff’s Opposition (Dkt. #552), and Defendant’s Reply (Dkt. #561).

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Elise seeks an order compelling Plaintiff to provide further responses to his First Set of

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Interrogatories, No. 1 through 10. It was filed as an emergency motion because discovery was set to

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close within a matter of days, and Defendant alleges Plaintiff’s failure to provide proper interrogatory

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responses was preventing the New Defendants from preparing witnesses for deposition and severely

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prejudicing the New Defendants’ ability to properly prepare their experts. Plaintiff served a

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consolidated response to each of these interrogatories objecting that discovery was ongoing and that fur

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responses were unduly burdensome because the New Defendants had only recently produced tens of

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thousands of draft scripts, many of which were undated. Additionally, Plaintiff objected that the New

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Defendants had not preserved original metadata and information on the draft scripts which made

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analysis unduly burdensome and oppressive. Defendant Elice argues that this is the same objection the

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court overruled in compelling Defendant Brickman to provide full and complete responses to

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interrogatories, and that the court should therefore grant this motion. Specifically, Defendant Elise

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seeks an order requiring Plaintiff to withdraw all of her objections, except her objection as to expert

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opinion testimony, and provide full and complete substantive responses to each interrogatory separately.

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Counsel for Plaintiff indicates that she delivered amended answers to the interrogatories which

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withdrew the objections that the contention interrogatories were premature, and an abuse of discovery

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and unduly burdensome. Plaintiff opposes the motion arguing it should be denied because Plaintiff has

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complied with all court orders and has answered the interrogatories fully based on information available

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at the time of the answers. Plaintiff also argues that the motion to compel raises issues that were not

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appropriately addressed at meet-and-confer sessions. Plaintiff notes that the court reconsidered its

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earlier order denying her request for native files, and ordered the Defendants to produce them by April

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29, 2011. Defendants applied for, and received, an eight-day extension over Plaintiff’s objection to

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produce native files. Plaintiff answered the interrogatories to the best of her ability and as fully and

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completely as possible given the information available to her at the time. At the meet and confer

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conference on May 28, 2011, Plaintiff’s counsel pointed out that the Elice situation was “far different

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than the Brickman situation because the Brickman questions related to a single script and the Elise

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interrogatories related to tens of thousands of undated pages.” Plaintiff’s counsel agreed to serve

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amended answers and asserts that the parties agreed that there would be further discussion if the New

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Defendants were dissatisfied with Plaintiff’s amended answers. However, this emergency motion was

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filed without any further efforts to meet and confer. Plaintiff supplemented her answers to

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interrogatories after Mr. Elice’s deposition. At the time this opposition was filed Plaintiff had not

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finished analysis of the several hundred outlines, treatments and drafts of scripts produced just prior to

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the motion to compel. Plaintiff represents that she will update information about similarities in the

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works after her expert report is prepared as allowed by the court’s prior order.

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Defendant replies that Plaintiff’s opposition is largely non-responsive to the arguments raised in

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the motion. Defendant contends that the native files issue is a “classic red herring” which was not

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raised in the parties’ meet-and-confer session, and does not explain why Plaintiff is unable to perform

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the literary analysis requested in the interrogatories. Plaintiff does not need electronic metadata or

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information in native files to respond to these requests. Rather, the interrogatories ask for the factual

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basis for claims of infringement based on drafts pled for the first time in Plaintiff’s Third Amended
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Complaint. Elice believes Plaintiff deliberately failed to adequately respond to the interrogatories so

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that she could conduct the deposition of Defendants Elise and Brickman before disclosing the substance

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of her claims against them. Her failure to provide full and complete responses prejudiced them in

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preparation for these depositions and gave Plaintiff a tactical advantage. Thus, Elise reiterates his

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request that the court issue an order compelling further responses by Plaintiff to his First Set of

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Interrogatories No. 1 through 10, and that Plaintiff withdraw all of her objections except her objection

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as to expert opinion testimony. Elice reiterates that Plaintiff should be required to provide full and

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complete substantive responses separately to each interrogatory, and that he cannot determine, based on

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Plaintiff’s interrogatory responses, whether Plaintiff is making a copyright infringement claim as to

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particular drafts or categories of drafts, or other script materials. Thus, she should be ordered to provide

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a response to Interrogatory No. 1 which clarifies if this is the case.

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Having reviewed and considered the moving and responsive papers and attached discovery

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responses disputed here, the court is satisfied that counsel for Plaintiff made a good-faith attempt to

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answer the interrogatories based on the status of the litigation, the amount of ongoing and

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contemporaneous discovery, and the supplemental discovery the court had ordered. Counsel for

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Plaintiff withdrew certain of her objections and amended and supplemented her answers and agreed to

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timely supplement the answers after expert disclosures if her responses were materially incomplete or

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incorrect. Under these circumstances,

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IT IS ORDERED Defendant Eric Elice’s Emergency Motion to Compel (Dkt. #545) is
DENIED.
Dated this 12th day of October, 2011.

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______________________________________
Peggy A. Leen
United States Magistrate Judge

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