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Viper Nurburgring Record LLC v. Robbins Motor Co., LLC

United States District Court, D. Kansas

January 9, 2019

VIPER NURBURGRING RECORD, LLC, Plaintiff,
v.
ROBBINS MOTOR CO., LLC, and CLAYTON ROBBINS, Defendants.

          MEMORANDUM & ORDER ON PLAINTIFF'S MOTION FOR PROTECTIVE ORDER

          KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE

         Before the Court is the “Motion for Protective Order as to Defendants' Third-Party Subpoenas” filed by Plaintiff Viper Nurburgring Record LLC (“VNR” or “Plaintiff”). (Doc. 63.) Having considered the submissions of the parties, Defendants' motion is GRANTED.

         FACTUAL BACKGROUND

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

VNR is an entity formed to set a world-record time for a production car on the infamous Nürburgring track in Nürburg, Germany. (Doc. 1, ¶8.) VNR organized two trips to the Nürburgring in 2017, using two 2017 Viper ACR vehicles provided by a sponsor for the record time attempts. (Id., ¶9.) The world record attempts were documented by a professional photographer, Eric Meyers, who was hired by VNR to take photographs of the record attempts. (Id., ¶11.) Mr. Myers assigned ownership rights for his photographs to VNR. (Id.)
VNR solicited sponsorships online and within the Viper community. Third parties BJ Motors and Viper Exchange assisted in the VNR record efforts by supplying the vehicles. BJ Motors and Viper Exchange were both provided non-exclusive licenses to use the photographs from the world record attempts, including those photographs used by Defendants without authorization. Prior to this action, Defendants threatened to defame VNR's owner, Russ Oasis, and Viper Exchange within the Viper community if VNR filed suit seeking to enforce VNR's copyright rights. (Doc. 1, ¶30.) Defendants' litigation tactics continue their pre-suit pattern of harassment, and would impose an undue burden on Viper Exchange and BJ Motors.
VNR has already disclosed both BJ Motors and Viper Exchange as sponsors. VNR has already acknowledged that they provided the vehicles used and were provided a non-exclusive license to the photographs at issue.

(Doc. 63, at 1-2.)

         Defendants provide the following additional statements in the factual background portion of their response brief:

Plaintiff's interrogatory responses indicate that at least part of the consideration offered for sponsorship was the Viper vehicles themselves. As of the date of this response, Plaintiff has not provided copies of any written agreements with BJ Motors and/or Viper Exchange related to the sponsorship. Plaintiff has not produced any correspondence between VNR and these entities related to the sponsorship or the photographs.
Plaintiff identified these two sponsors as entities that received a license to use the photographs at issue in exchange for sponsorship. On a very basic level, this is a similar arrangement to the agreement VNR made with Defendants. However, Plaintiff has not provided documents detailing the nature and extent of the sponsorship and license agreement. In turn, Defendants sent subpoenas to BJ Motors and Viper Exchange seeking documents reflecting the terms of the sponsorship agreement including the value of consideration exchanged.

(Doc. 68, at 2.)

         Plaintiff brings the present motion seeking a Protective Order regarding the third-party subpoenas Defendants have served on BJ Motors and Viper Exchange. (Doc. 63.) Plaintiff contends that “[b]ecause the wide-ranging subpoenas served on BJ Motors and Viper Exchange seek information far beyond that which is relevant to VNR's claims or Defendants' defenses in this case, the Court should issue a protective order to place reasonable limits on their scope.” (Id., at 2.)

         ANALYSIS

         A. Legal ...


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