Summary
The United States District Court for the Eastern District of California granted Deertrail Development LLC’s motion to compel discovery in a copyright infringement action brought by Adavco, Inc. The court ordered Adavco to supplement its damages disclosures, interrogatory answers, and production responses, and ordered Adavco and nonparty Robert Smith to conduct diligent searches and produce responsive documents and sworn declarations.
Topics
Practice areas
Questions Presented
- Whether Adavco's initial damages disclosures complied with Federal Rule of Civil Procedure 26(a)(1)(A)(iii) and whether supplementation should be compelled.
- Whether Adavco was required to supplement its answers to Deertrail's interrogatories when it did not defend its objections in the joint statement or otherwise provide a persuasive basis for withholding information.
- Whether Adavco was required to conduct a diligent search and produce all responsive, nonprivileged documents under Rule 34.
- Whether nonparty Robert Smith was required to produce all responsive documents and provide a declaration describing his search under Rule 45.
Holdings
- A party's disclosure of only a lump-sum damages estimate does not satisfy Rule 26(a)(1)(A)(iii), which requires a computation of each category of damages, the party's damages theory, and the supporting evidentiary materials unless privileged or protected.
- Discovery objections asserted in responses but not defended in briefing on a motion to compel are waived; independently, unsupported objections may be overruled when the responding party fails to carry its burden to defend them.
- A responding party must conduct a diligent search and produce all specified relevant, nonprivileged documents and electronically stored information within its possession, custody, or control, or properly state and support an objection.
- A nonparty served with a Rule 45 subpoena must timely object or produce responsive documents, and may be ordered to provide a declaration detailing the search for responsive materials and affirming whether additional documents exist within his possession, custody, or control.
Key quotations
“A “lump sum” damages estimate does not suffice in light of the Rule’s reference to a “computation.”” (p. 3)
“Nor is even a computation enough on its own. District courts have commonly required a disclosure of the party’s “theory of damages,” too.” (p. 3)
“A party may not excuse its failure to comply with discovery obligations by claiming that its opposing party is similarly delinquent. Nor may a party condition its compliance with its discovery obligations on receiving discovery from its opponent.” (p. 4)
“The responding party must respond in writing and is obligated to produce all specified relevant and nonprivileged documents, tangible things, or electronically stored information in its “possession, custody, or control” on the date specified.” (p. 5)
Factual background
Adavco alleges that Deertrail copied and used Adavco's copyrighted tract maps in developing a residential subdivision in Bakersfield, California. Adavco disclosed only that it sought at least $2.1 million in damages and did not provide a computation, supporting materials, or a clear damages theory. Deertrail served interrogatories and requests for production on Adavco and subpoenaed nonparty Robert Smith, but Adavco and Smith produced incomplete discovery and did not adequately represent that they had conducted diligent searches for responsive documents.
Procedural history
Adavco filed an amended complaint alleging that Deertrail copied and used copyrighted tract maps to develop a residential subdivision and asserting copyright-infringement claims. Deertrail later answered and asserted a counterclaim for declaratory relief. After Deertrail served discovery requests and a subpoena to Robert Smith, and after the parties' meet-and-confer efforts did not resolve the disputes, Deertrail filed the motion to compel. The court decided the motion without oral argument, vacated the scheduled hearing, and granted the motion.
Remand instructions
No remand. The motion to compel was granted. Adavco was ordered to supplement its damages disclosure, interrogatory answers, and production responses; produce all responsive nonprivileged materials; and provide a sworn affidavit detailing its document search. Smith was ordered to supplement his subpoena response, produce all responsive documents, and provide a declaration under penalty of perjury describing his search. Unless otherwise stipulated, the affidavit and declaration were due within fourteen days of the order.