United States District Court, D. Kansas
MEMORANDUM AND ORDER
E. BIRZER, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion for
Protective Order (ECF No. 45) to forbid
Plaintiffs and/or their counsel from entering onto the Bain
property for inspection of the Bain home. On May 28, 2019,
the Court conducted an in-person hearing to discuss the
motion and the schedule for this case. Plaintiffs Brian and
Laura Dolezal appeared in person and through counsel, Mark
Brown and Ryan Hinderliter. All Defendants appeared through
counsel, Kyle Donnelly. After consideration of
Defendants' motion and supporting memorandum (ECF Nos.
45, 46) and Plaintiffs' Response in Opposition (ECF No.
50), along with additional argument from counsel,
Defendants' Motion for Protective Order (ECF No.
45) was DENIED by oral ruling
during the hearing. In addition, new deadlines were
established to govern this action. This written opinion
memorializes those rulings.
a copyright case involving the personal homes of plaintiffs
Brian and Laura Dolezal and defendants Jerry and Jennifer
Bain in Overland Park, Kansas. In 2013, Plaintiffs hired an
architectural firm to design their custom home, and hired
defendant Starr Homes, LLC (“Starr”) as
contractor to build the home. Later, in 2015, Plaintiffs
allowed Starr to hire a residential designer, defendant
Castrop Design Group, LLC (“Castrop”) to produce
architectural drawings of their home to promote a local
“Homes of Distinction” tour. Then, in
approximately 2018, Starr began building for the Bains what
Plaintiffs believe to be a substantially similar residence,
within two miles of Plaintiffs' home.
unsuccessfully trying to resolve their dispute with the
Bains, Plaintiffs registered two related copyrights: U.S.
Copyright Registrations No. VAu 1-321-463 for technical
drawings and No. VAu 1-321-645 for the corresponding
architectural work. Plaintiff filed this lawsuit in October
2018, contending their copyrights were infringed by
Defendants. They claim Starr built an infringing residence
for Jerry and Jennifer Bain, using infringing drawings
prepared by Castrop. Defendants assert counterclaims based on
Plaintiffs' alleged copyright misuse and copyright
invalidity, and make declaratory claims based on ownership,
co-authorship, and derivative work.
Bain home was still being built when Plaintiffs filed this
case. Prior to the filing of this litigation, on September
21, 2018, Plaintiffs sought and were granted a walk-through
of the Bain home. Plaintiffs were permitted “unfettered
access” (ECF No. 50 at 3) to the home at that time, and
Plaintiffs' counsel took multiple photos during the
inspection. All parties acknowledge the Bain home was under
construction and unoccupied during the September inspection.
Bain home was completed in Spring 2019, and they moved into
the home in approximately April 2019.2 Plaintiffs informally sought to inspect the
finished home by email to defense counsel on March 15, 2019;
and again by email dated April 1, 2019. During an April 2,
2019 meet and confer telephone call, Plaintiff once more
asked for an informal inspection, but Defendants' counsel
suggested Plaintiffs serve a formal request under
served a Request to Enter onto Property for Inspection of
Bain Home on April 5, 2019, seeking entry onto the Bains'
property on May 6, 2019. (ECF No. 46-1, Ex. A.) Plaintiffs
sought to “inspect, measure, survey, and photograph the
Bain home.” (Id.) On May 3, 2019, Defendants
served objections to the request (ECF No. 46-2, Ex. B), and
on May 6, the parties held a meet and confer telephone
conference to discuss the issue. (ECF No. 46 at 2.)
to resolve the issue, Defendants filed the instant Motion for
Protective Order on May 8, 2019, asking the Court to prohibit
the inspection. (ECF No. 45.)
Defendants' Motion for Protective Order (ECF No.
Duty to Confer
threshold matter, the Court first considers whether the
parties have sufficiently conferred regarding Defendants'
Motion, as is required by Fed.R.Civ.P. 37(a)(1) and D. Kan.
Rule 37.2. A
review of the briefing indicates counsel conferred in person,
via email, and by telephone in an effort to resolve the
issues with Plaintiffs' request for inspection. As such,
the Court is satisfied counsel have adequately conferred as
“[c]ourts are given broad discretion to control and
place appropriate limits on discovery.” And “a magistrate
[judge] is afforded broad discretion in the resolution of
non-dispositive discovery disputes.” Applicable to this dispute
are the discovery standards outlined in Fed.R.Civ.P. 34 and
26, which the parties and this Court agree provide the
primary backdrop for review of Defendants' motion.
entry of a party onto another party's property to conduct
discovery implicates Fed.R.Civ.P. 34(a)(2). This subsection
allows a party to serve a request “to permit entry onto
designated land or other property possessed or controlled by
the responding party, so that the requesting party may
inspect, measure, survey, photograph, test, or sample the
property or any designated object or operation on
“It is within the court's discretion whether to
permit entry under Rule 34(a)(2).”
examining disputes regarding such entry, other courts in this
District have found when the parties disagree regarding the
appropriateness of inspection, “the court must balance
the respective interests by weighing the degree to which the
proposed inspection will aid in the search for truth against
the burdens and dangers created by the
inspection.” In its discretion, the court may
prohibit a Rule 34(a)(2) request if:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, ...