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Viper Nurburgring Record LLC v. Robbins Motor Co. LLC

United States District Court, D. Kansas

December 3, 2018



          Kenneth G. Gale, United States Magistrate Judge

         Before the Court is the Motion to Compel filed by Defendants Robbins Motor Co., LLC and Clayton Robbins (“Defendants”). (Doc. 50.) Having considered the submissions of the parties, Defendants' motion is GRANTED in part and DENIED in part.


         This is a copyright infringement case. Defendants have summarized the “nature of the case” in their motion as follows:

Plaintiff is an entity formed to set a world record time for a production or ‘stock' Viper - that is, a ‘normal' Viper car off the production line or taken from stock, and not specially modified other than minor things like a safety cage for the drive - on the Nurburgring track in Nurburg, Germany. Defendants were a sponsor and contributed thousands of dollars to help support this world record attempt.
VNR hired a professional photographer to document the event. In exchange for Defendants' support and sponsorship, VNR gave Defendants an express license to use at least one photograph, and (Defendants argue) at the least an implied license to use the others. Some of the photographs were later offered on the photographer's website for license at $99 per photo, and many were also reproduced on social media with commentary from Viper owners (there is a Viper Owners website and online community).
The world record attempt failed (even though, it now appears, VNR may have surreptitiously made major and illicit modifications to boost the car's power). A few months later, VNR claimed Defendants had to pay more money for the license for the already promised photograph, and then in March 2018 asserted that Defendants had infringed VNR's purported copyrights by using a number of other photographs. Defendants disagreed. This lawsuit ensued.

(Doc. 50, at 2.)[1]

         Defendants bring the present motion seeking an Order compelling Plaintiff to provide “full and complete responses” to various Interrogatories and Requests for Production. (Id.)


         A. Legal Standards for Discovery.

         Fed.R.Civ.P. 26(b) states that

[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at state in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         As such, the requested information must be nonprivileged, relevant, and proportional to the needs of the case to be discoverable. Holick v. Burkhart, No. 16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).

         “Unless a request is overly broad, irrelevant, or unduly burdensome on its face, the party asserting the objection has the duty to support its objections.” Funk v. Pinnacle Health Facilities XXIII, LP, No. 17-1099-JTM-KGG, 2018 WL 6042762, at *3 (D. Kan. Nov. 19, 2918) (quoting Hammond v. Lowe's Home Ctrs., Inc., 216 F.R.D. 666, 670 (D.Kan.2003)). Further, once the “low burden of relevance is established, the legal burden regarding the defense of a motion to compel resides with the party opposing the discovery request.” Waters v. Union Pac. RR. Co., NO. 15-1287-EFM-KGG, 2016 WL 3405173, at *1 (D. Kan. June 21, 2016) (citing Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that the party resisting a discovery request based on overbreadth, vagueness, ambiguity, or undue burden/expense objections bears the burden to support the objections)).

         II. Disputed Discovery Requests.

         Defendants are seeking supplemental responses to Interrogatories No. 1, 2, 7, 8, 13, 14, First Request for Production Nos. 10, 16, 18, 19, 26, 30, 31, 32, 34, 37, and Second Request for Production No. 1 and 2. Defendants' motion and reply brief tend to discuss the discovery requests in a more general fashion, rather than addressing the requests individually or in more specific categories. This approach has complicated the Court's analysis of the issues, often making it difficult for the Court to determine what Defendants contend is missing from Plaintiff's production. That stated, the Court will address the discovery requests at issue.

         A. Interrogatories 1, 2, 13, and 14.

         Defendants have categorized these four Interrogatories together, contending they “seek discovery on the identities of all sponsors for the world record attempt, the benefits that Plaintiff promised and/or provided to each sponsor, negotiations for any licenses by sponsors, and information on any licenses to the photographs at issue.” (Doc. 50, at 5.) Defendants argue that any licenses to the photographs at issue are relevant. (Doc. 50, at 5.) They contend that Plaintiff's “course of conduct towards other sponsors, including providing licenses to the photographs, is germane to assessment of a sponsor's rights and obligations to the photographs at issue.” (Id., at 5-6.) Defendants continue that “all sponsorships to the VNR attempt and the amount paid in financial support are relevant, because this information may suggest the monetary value of the photographs, illustrate the different benefits a sponsor was given based on the amount of monetary support provided, and the estimated value of a license for use of the photographs.” (Id., at 6.)

         According to Defendants, Plaintiff's “treatment of and course of conduct towards other sponsors is useful to assess and characterize its relationship with Defendants, including the rights and obligations related to use of the photographs at issue.” (Id., at 6.) They argue that such information “may show that Defendants' sponsorship entitled it to implied licenses for use of all photographs based on the total financial support it provided as compared to other sponsors” and also provides a basis for determining “the monetary value of licenses to the photographs and value of the photographs.” (Id.) Further, Defendants contend the requested information might also reveal that other sponsors have implied licenses to the photographs. (Id.) Defendant has, however, made no attempt to proffer an evidentiary basis for its claim that any particular conduct of Plaintiff towards this Defendant supports its claim for an implied license to use photographs beyond the express grant. This makes the discovery of Plaintiff's treatment of other sponsors, for the purpose of supporting its theory, of dubious relevance. However, out of an abundance of caution, and without opining whether such would be ultimately admissible at trial, the Court will order the production of discovery into express agreements for the limited or unlimited use of the photographs with other sponsors, and into the identity of all sponsors to facilitate Defendant's investigation into whether other unlicensed sponsors used photographs. Within the context of these general theories, the Court will address these four Interrogatories individually.

         1. Interrogatory No. 1.

         Interrogatory No. 1 asks Plaintiff to “[i]dentify all individuals or entities that provided payments or other financial support to VNR for the ‘world record attempt' as described in your Complaint, and indicate the total amount of support each such individual or entity provided.” (Doc. 50-2, at 1.) Plaintiff objects that the request is irrelevant and not proportional to the needs of the case “except for sponsorships that included a license to use the copyrighted images identified in the complaint.” (Doc. 50-2, at 1.) Plaintiff also objects that the requested information is “confidential and private, and to the extent VNR discloses sponsorships that included a nonexclusive license to use the copyrighted images identified in the complaint, such information shall be provided under the Court's Protective Order.” (Id.) Plaintiff then included a list of sponsors to whom a license was provided for such images, designating the same as “confidential.” (Id., at 1-2.)

         The Court finds Plaintiff should supplement this with a list of all sponsors. The request, as worded, is otherwise facially overbroad and seeks information not relevant to this case. Plaintiff is not required to provide the additional information (e.g. the amount of support) that was requested. These objections are sustained. Defendants' motion is DENIED as to Interrogatory No. 1.

         2. Interrogatory No. 2.

         This discovery request asks Plaintiff to “[i]dentify all individuals or entities that you have sold or otherwise provided a license to for the Photographs.” (Doc. 50-2, at 2.) Plaintiff objects that the information is “confidential and private.” (Id.) Plaintiff continues that it “has not sold the copyrighted images identified in the complaint, but to the extent these images have been the subject of a nonexclusive license, the licensee shall be provided under the Court's Protective Order.” (Id.) Plaintiff then attached a “list of sponsors to whom a non-exclusive license to said images was provided, ” which was marked as “confidential” pursuant to the Protective Order.

         In response to Defendants' motion, Plaintiff indicates that it has “identified all non-exclusive licensees who were sponsors.” (Doc. 53, at 7.) Plaintiff attests that, beyond the licenses contained in the list, Plaintiff has not “sold” any photograph at issue. (Id.) Plaintiff argues that its response to Interrogatory No. 2 “is not lacking in any respect, and Defendants fail to identify any alleged insufficiency, instead simply arguing VNR should provide something more.” (Id., at 8.) The Court agrees. Both Defendants' motion and reply brief ...

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