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Dolezal v. Starr Homes, LLC

United States District Court, D. Kansas

June 26, 2019

BRIAN DOLEZAL, et al., Plaintiffs,
v.
STARR HOMES, LLC, et al., Defendants. Event Deadline/Setting

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER, UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background [1]

         This is 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.

         After 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.

         The 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.

         The 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 Fed.R.Civ.P. 34.

         Plaintiffs 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.)

         Unable 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.)

         II. Defendants' Motion for Protective Order (ECF No. 45)

         A. Duty to Confer

         As a 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.[3] 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 required.

         B. Legal Standard

         Trial “[c]ourts are given broad discretion to control and place appropriate limits on discovery.”[4] And “a magistrate [judge] is afforded broad discretion in the resolution of non-dispositive discovery disputes.”[5] 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.

         The 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.”[6] “It is within the court's discretion whether to permit entry under Rule 34(a)(2).”[7]

         When 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.”[8] 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, ...

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