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Tomelleri v. Zazzle, Inc.

United States District Court, D. Kansas

December 12, 2014

ZAZZLE, INC., Defendant.


TERESA J. JAMES, Magistrate Judge.

In the Order dated December 5, 2014, the undersigned Magistrate Judge ruled on Defendant Zazzle, Inc.'s Motion for An Order Limiting the Scope of Plaintiff's Rule 30(b)(6) Topics and Related Discovery, and for an Award of Sanctions Against Plaintiff's Counsel for Abusive Discovery (ECF No. 75), to address Zazzle's objections to specific topics included in the Amended Notice of Plaintiff's Rule 30(b)(6) depositions.[1] The Court now issues this Memorandum and Opinion to provide the basis for those rulings and to address the remaining issues in Defendant's motion.

I. Background

Plaintiff, an artist who creates illustrations of fish, brought this action for damages and injunctive relief claiming that Defendant Zazzle violated copyright laws by allowing third-party users of Zazzle's website to upload Plaintiff's illustrations to be replicated and sold for profit.[2] Zazzle operates through its website,, where visitors to the website may create and purchase customized products by incorporating personalized images or text, or purchase products which contain images that have been uploaded by third parties. These third parties place an uploaded image onto an image of a product that Zazzle sells and, once combined, display the product image on the customer's "storefront." The storefront is a user-specific webpage that a user can create on Zazzle's website; the customer uses the storefront to order a product that Zazzle creates by using an image supplied by a third party and placing that image on an item that Zazzle sells.

Zazzle represents that it requires each third-party user to execute agreements which, among other things, act to prevent and detect copyright infringement.

On June 12, 2012, Plaintiff's counsel contacted Zazzle and complained of copyright infringement. Zazzle represents that it immediately removed the allegedly infringing product images and told Plaintiff the quantity and dollar value of the products at issue. On November 5, 2013, Plaintiff filed his complaint alleging that Zazzle violated copyright laws because several of Plaintiff's copyrighted images have been uploaded and made available for sale on Zazzle's website.

Skipping over much of the history of this particular dispute, Plaintiff served an Amended Notice of Plaintiff's Rule 30(b)(6) Deposition with 38 topics, many with subparts.[3] Plaintiff also served notices for eight individual depositions.[4] Defendant now seeks a protective order which limits the scope of the 30(b)(6) depositions, precludes Plaintiff from taking additional depositions without leave of court, and awards sanctions.

Defendant includes in its supporting suggestions a statement of good faith attempt to resolve dispute.[5] Defendant refers to the communications between the parties and attaches copies of their email and letter correspondence.[6] The Court finds that the parties largely complied with their duty to confer under D. Kan. R. 37.2. With respect to Topic Nos. 24, 29, 31, 37, and 38, the Court notes that Defendant did not include these requests in its objections to Plaintiff's 30(b)(6) deposition notice, [7] and consequently the parties' subsequent communications were likewise silent on those topics. Given the parties' seeming inability to move forward with discovery absent the Court's ruling on this motion, however, and under the Court's authority pursuant to Fed.R.Civ.P. 26(b)(2)(C), the Court has considered the motion in toto.

II. Legal Standard for Protective Order

Defendant seeks a protective order pursuant to Federal Rule of Civil Procedure 26(c). That rules provides, in pertinent part, that for good cause the court may issue an order to protect a party from "annoyance, embarrassment, oppression, or undue burden or expense, including... forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters."[8] The party seeking the protective order has the burden of demonstrating good cause for it.[9] To establish good cause, the moving party must offer "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements."[10] Even upon a showing of good cause, however, the Court also considers other factors that were or could have been presented by the party seeking discovery to determine whether the totality of the circumstances justifies the entry of a protective order.[11]

The court has broad discretion to decide when a protective order is appropriate and what degree of protection is warranted.[12] The Supreme Court has recognized that "[t]he trial court is in the best position to weigh fairly the competing needs and interests of the parties affected by discovery. The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders."[13] Notwithstanding this broad grant of discretion, a court may issue a protective order only if the moving party demonstrates that the basis for the protective order falls within one of the specific categories enumerated in the Rule, i.e. that the requested order is necessary to protect the party from "annoyance, embarrassment, oppression, or undue burden or expense."[14]

III. Defendant's Objections to the Rule 30(b)(6) Deposition Topics

When a party seeks to depose a corporation or other entity, the notice of deposition "must describe with reasonable particularity the matters for examination."[15] The areas of inquiry are also constrained by the general scope and limits of discovery set out in Fed.R.Civ.P. 26(b). For Rule 30(b)(6) "to effectively function, the requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute."[16] A notice for a Rule 30(b)(6) deposition that is not so constrained but is instead overly broad "subjects the noticed party to an impossible task."[17]

Where a party seeks a protective order to avoid undue burden based on relevance of the topics specified in the notice, the court must maintain its liberal approach to discovery relevance where relevancy is broadly construed and a request for discovery should be considered relevant if there is any possibility ...

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