In Davis v. Pinterest, Inc., No. 19-cv-07650-HSG (TSH) (N.D. Cal. July 20, 2021), California Magistrate Judge Thomas S. Hixson granted the plaintiff’s motion to compel in part by finding the defendant responsible “to make a reasonable and diligent search for responsive documents and information” in regard to several requests for production (“RFPs”) and interrogatories (“rogs”) submitted by the plaintiff.  Judge Hixson also denied other parts of the plaintiff’s motion to compel with regard to two RFPs for which the defendant claimed no documents existed and denied the plaintiff’s motion for sanctions without prejudice but did rule that the defendant was required to serve amended responses for some RFPs as they failed to comply with Rule 34 and state whether documents were being withheld on the basis of each objection.

Case Background

In this copyright infringement case by the plaintiff (a renowned digital artist) alleging the defendant distributed copyrighted works without his authorization, the plaintiff moved to compel on 30 discovery requests – 28 RFPs and two rogs – “in one fell swoop” “on the last day for him to move to compel on written discovery” in a single joint discovery letter brief.  The plaintiff argued that the defendant’s objections – that the plaintiff produce URLs or Pin IDs before it would produce responsive documents or information – “have no merit” and that it was sufficient for him to identify the works in the form of the image itself, the name and its author, and for many works at least one location of the image on the defendant’s platform.  Once he had done that, the plaintiff claimed the burden fell on the defendant to search for responsive documents and information. The plaintiff also argued that nothing in Rule 34 requires a requesting party to identify where the responding party should look to find responsive documents.

The defendant argued that this was not a case of the plaintiff having to tell the defendant where to look but a question of the plaintiff telling the defendant what to look for, and specifically what content on its service the plaintiff claimed infringed the 51 copyrighted works at issue in the case. The defendant stated: “the law is clear that it is Davis’s – not Pinterest’s – burden to identify the allegedly infringing acts or works”.

Judge’s Ruling

While noting that “[t]he timing and content of this motion to compel are problematic” and that “a motion to compel filed on the last possible day that argues solely in the negative that certain objections lack merit may not result in much effective relief”, Judge Hixson stated: “The Court agrees with Davis. To see why, you just need to read the discovery requests.”

Noting that “[t]he RFPs and rogs define ‘works’ to mean ‘the photographs or images captured by Harold Davis that are the subject of this litigation’” and “at a minimum, that would be the 51 registered works listed in Exhibit A to the Second Amended Complaint”, Judge Hixson stated: “the RFPs and rogs just seek factual information. RFP 1 seeks ‘[a]ll copies of Works in your possession.’ That’s easy to understand. It means: Pinterest, go find every copy of these 51 images that you possess. Likewise, RFP 2 requests ‘[a]ll communications relating to Plaintiff or his Works.’ That’s also easy to understand. It means: Pinterest, find every communication about Davis or these 51 images. The other discovery requests are all in a similar vein. They seek factual information about the works. Davis was under no obligation to provide any further information to Pinterest.” So, Judge Hixson found the defendant responsible “to make a reasonable and diligent search for responsive documents and information.”

While finding the defendant responsible on that basis, Judge Hixson declined to order the defendant to produce documents responsive to RFPs 12 and 13 based on its representation elsewhere in the letter brief that none existed and also declined to order a further response to rog 7, based on the defendant’s claim that “provision of the requested information is not possible without extremely burdensome and disproportionate effort, and even then, any information retrieved would be incomplete and inaccurate” and the plaintiff’s failure to address that in the letter brief.  Judge Hixson also rejected the plaintiff’s request to describe the search for RFPs 12 and 13, he denied the plaintiff’s request for an adverse inference without prejudice because it was submitted improperly in a joint discovery letter brief and he denied the plaintiff’s contention that the defendant needed to state which documents are responsive to which requests, stating “for Davis to be entitled to have Pinterest required to label or organize the produced material by request under subsection (E)(i), he would have to make some showing or at least an argument that Pinterest has failed to produce documents as they are kept in the usual course of business. But Davis does not mention that issue at all in the letter brief.”

However, Judge Hixson denied the defendant’s intent to produce only “public documents” in response to RFPs 11, 16 and 17 because there was a protective order in place and stated that “[f]or RFPs 8, 20-22 and 27-28, the Court agrees with Davis that Pinterest’s responses do not comply with Rule 34 because they do not state whether documents are being withheld on the basis of each objection.”

So, what do you think?  Do you agree with the Court in finding the defendant responsible to respond to the discovery requests?  Please share any comments you might have or if you’d like to know more about a particular topic.

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