DOC'S DREAM, LLC, Plaintiffs, v. DOLORES PRESS, INC., et al., Defendants. AND RELATED COUNTERCLAIMS No. CV 15-2857-R (PLAx) United States District Court, C.D. California, Western Division Filed February 05, 2018 Counsel Carlos A. Leyva, Pro Hac Vice, The Digital Business Law Group PA, Largo, FL, Linda S. McAleer, Law Offices of Linda S. McAleer, Newport Beach, CA, for Plaintiff. Kevin J. Leichter, Andrew Ethan Hewitt, The Leichter Firm, APC, Los Angeles, CA, Mark Steven Lee, Rimon, P.C., Los Angeles, CA, for Defendants. Abrams, Paul L., United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL I. BACKGROUND *1 On December 27, 2017, the parties filed a Joint Stipulation (alternatively “JS”) (ECF No. 75) regarding the Motion to Compel (“Motion” or “Mot.”) filed by defendants Dolores Press, Inc. (“Dolores Press”) and Melissa Scott (“Scott”) (collectively “defendants”), seeking to compel plaintiff to provide further responses to defendants' Special Interrogatories (“Interrogatory” or “Interrogatories”), Requests for Admission (“RFA”), and Requests for Production of documents (“RFP”), and to compel the production of documents. On January 22, 2018, defendants filed a Supplemental Memorandum (alternatively “Supp'l Mem.”) in support of their Motion. (ECF No. 93). After referral to this Court by the District Judge, the hearing was set for February 7, 2018. (ECF No. 98). On February 2, 2018, defendants filed a “Request for Leave to Lodge Deposition Transcript [of Patrick Robinson[1]] as Additional Evidence in Support of Defendants' Motion to Compel (Doc. No. 75)” (“Request”). (ECF No. 113). On February 3, 2018, plaintiff filed an Opposition (alternatively “Opp'n”) to the Request. (ECF No. 114). Having considered the arguments submitted in connection with the Motion, the Court has concluded that oral argument will not be of material assistance in determining the Motion. Accordingly, the hearing scheduled for February 7, 2018, is ordered off calendar. (See Local Rule 7-15). II. FACTUAL BACKGROUND This suit arises from disputed copyrights in the audio and visual recordings (the “Works”) of the teachings of Dr. Gene Scott (“Dr. Scott”), a pastor of the Wescott Christian Center and Faith Center in Glendale, California. (ECF No. 34 (“First Amended Complaint” or “FAC”) ¶¶ 10-21). Dr. Scott initially owned the copyrights to the Works and created a “copyrighted archive of video and audio tapes” (“Archive”) containing the Works, and it is “undisputed that Dr. Scott himself claimed ownership of the copyrights related to the Archive.” (FAC ¶ 13). However, from 1996 until the time of his death in 2005, Dr. Scott “made the Archive freely available both on WEB TV and on the Internet” through a website he owned, and encouraged his local, national, and international congregation “to share the contents of said Archive with others.” (FAC ¶¶ 9-15). Defendant Scott, who describes herself as “Pastor and Teacher of Faith Center Church in Glendale, California,” and defendant Dolores Press, a California corporation that describes itself as the “official site for pastor Melissa Scott's teaching materials, CDs, DVDs, and books,” claim to be owners of the Archive. (FAC ¶ 27). After Dr. Scott's death in 2005, defendant Scott “removed the Archive from the Internet,” allegedly for the purpose of “categorizing and cataloging” the Archive, but the Archive has never been “restored to its former state of availability on the Internet.” (FAC ¶ 19). Contrary to “Doc's wishes,”[2] defendants are preventing the free distribution of the Works contained in the Archive to the public. (FAC ¶ 27). Plaintiff is seeking a declaratory judgment that Dr. Scott's copyrights in the Archive were abandoned into the public domain by his “multiple overt acts” and, therefore, cannot be owned by defendants.[3] (FAC ¶¶ 1, 22-32). III. DISCUSSION *2 Preliminarily, the Court will examine the issues in this Motion using the general standard set forth in Federal Rule of Civil Procedure 26 (“Rule 26”). Rule 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. Discovery need not be admissible in evidence to be discoverable. Id. However, a court “must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Finally, the Court is mindful of the imperative that the Federal Rules of Civil Procedure be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1 (emphasis added); see also Landis v. N. Am. Co., 299 U.S. 248, 254-55, 57 S. Ct. 163, 81 L. Ed. 153 (1936) (a court has the inherent power “to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants” and “[h]ow this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance”). A. DEFENDANTS' REQUEST In their Request, defendants note that the deposition of plaintiff's representative, Mr. Robinson, which commenced on January 10, 2018 (and from which Mr. Robinson purportedly walked out), concluded on January 26, 2018, after the District Judge, on January 16, 2018, granted defendants' ex parte application to compel Mr. Robinson to return for his deposition. Defendants submit that plaintiff's deposition provides evidence to support this Motion because plaintiff “admitted to the existence of discoverable documents and information directly responsive to discovery requests, expressly disclaimed even receiving Defendants' requests, and proclaimed that information was being deliberately withheld by Plaintiff.” (Request at 2). Plaintiff responds that discovery in this matter closed on January 15, 2018, and defendants knew when they filed the Motion that the deposition was not being held until at least January 10, 2018. (Opp'n at 2).[4] Plaintiff further argues that “Defendants['] poor planning is not an excuse to ignore the [District Judge's] Order dated January 29, 2018, wherein the [District Judge] stated ‘No further discovery motions will be entertained in this matter. Failure to comply may result in sanctions.’ ” (Id.). Plaintiff also contends that the additional evidence defendants are seeking to lodge “is manifestly irrelevant to the question of abandonment,” and instead is seeking to obtain discovery going to infringement rather than refuting abandonment. (Id. at 3-4). Discovery is a dynamic process, in which information obtained at one point may lead to a desire for additional information. The fact that new information may be received at the end of the discovery process does not mean that the additional information must become part of the Court's consideration of pending issues. Rather, the timing of discovery must incorporate deadlines imposed by the Court. Defendants' Request is denied. B. INTERROGATORIES IN DISPUTE Defendants contend that plaintiff's responses to Interrogatory numbers 2, 3, 4, 5, 6, and 7 remain at issue: 1. Interrogatory Numbers 2, 3, and 4 These Interrogatories asked plaintiff to identify all statements made by Dr. Scott that provide evidence that he abandoned his copyrights, and the witnesses to each overt act or statement made by Dr. Scott that plaintiff contends is evidence that Dr. Scott abandoned his copyrights. Plaintiff objected that it is Dr. Scott's acts, not his statements, that “are controlling vis-à-vis an abandonment action,” and provided plaintiff with a list of thirteen individuals as “the information currently relied upon by Plaintiff.” Defendants argue they are entitled to know all witnesses known to plaintiff who have knowledge of the relevant facts, and suggest that plaintiff failed to identify witnesses who “[p]resumably” would be offering unfavorable testimony, and who plaintiff “does not intend to call at trial or use for summary judgment.” Defendants also state that Dr. Scott's statements -- and not just his acts -- are relevant to his intent to abandon his copyrights. *3 Plaintiff argues that these requests are not proportional to the needs of the case and notes that in the FAC it provided defendants with “affidavits of witnesses who observed Dr. Scott's actions and relied on his promises,” it has submitted additional affidavits in support of its motion for summary judgment (filed on January 8, 2018 (ECF No. 76)), and that in its responses to Interrogatory numbers 2 and 4 it has provided defendants with the identities of “those affiants, as well as a few individuals who have not provided affidavits.” Plaintiff also submits that it “does not have the burden of identifying all individuals known to it absent knowledge of whether those individuals possess information relevant to the issue at bar -- copyright abandonment.” It states that it “has, and will continue to supplement its responses and provide information regarding witnesses with information relevant to abandonment within the scope of [its] knowledge.” With respect to Interrogatory number 3, plaintiff states that in its First Amended Complaint it “provided a sampling” of Dr. Scott's statements encouraging his church members “to keep a copy [of his Works] for their personal libraries and to share the works and spread the word,” and argues that the “mere fact that there were hundreds of works placed on the internet for viewing and downloading without limitation or remuneration” supports plaintiff's position that the copyrights were abandoned. Defendants' presumption that plaintiff is hiding something by limiting its responses to a list of thirteen individuals is not enough to provide a basis to compel discovery. Additionally, to the extent defendants' Interrogatory numbers 2, 3, and 4 seek information as to all individuals who attended Dr. Scott's services, and/or downloaded audio and video files from his website and/or who heard his statements or observed his actions regarding his copyrighted Works -- whether or not they have information relevant to copyright abandonment -- they are overbroad and seek information that is not proportional to the needs of the case. To the extent, however, that plaintiff is aware of individuals with information pertaining to abandonment, such information is relevant and proportional to the needs of the case. Based on the foregoing, defendants' Motion as to Interrogatory numbers 2, 3, and 4 is granted in part. To the extent that plaintiff has interviewed or obtained statements from individuals (other than those already identified in response to Interrogatory numbers 2 and 4, in the First Amended Complaint, or in its motion for summary judgment), who have actual knowledge of Dr. Scott's purported abandonment of his copyrights, whether or not those individuals support plaintiff's position in this action, plaintiff shall provide defendants with the identifying information for those individuals. To the extent plaintiff is aware of additional statements made by Dr. Scott that it intends to rely on at summary judgment or at trial to support its claim that Dr. Scott abandoned his copyrights, it shall supplement its response to Interrogatory number 3 to include all such statements. 2. Interrogatory Numbers 5, 6, and 7 Interrogatory numbers 5 and 6 asked plaintiff to identify “with particularity each individual WORK of DR. SCOTT in PLAINTIFF's possession, custody, and/or control, whether actual or constructive,” and to state all facts regarding how each “WORK came to be in PLAINTIFF's possession, custody or control.” Interrogatory number 7 asked plaintiff to “state all facts relating to” plaintiff's formation. Plaintiff objected to these Interrogatories as irrelevant, seeking information relating to defendants' counterclaims and third-party claims, which the District Judge has dismissed (see ECF No. 64), and not relevant to the issue of Dr. Scott's abandonment of his copyrights “or any matter presently before the Court.” Defendants contend that plaintiff's objections are not stated with specificity, and because defendants have asserted the affirmative defense of unclean hands, if it is found that Dr. Scott did not abandon his copyright, then the information is “highly pertinent.” Moreover, defendants argue, if plaintiff “has acted in knowing violation of Dr. Scott's copyright, such as by obtaining copies illegally, thus theft, he [sic] is acting with unclean hands.” Defendants further contend that plaintiff does not have standing to bring this action if plaintiff does not have the copyrighted Works in its possession. That is because “if Plaintiff is not in possession of any of Dr. Scott's copyrighted materials, then there is no immediate harm and Plaintiff lacks standing to bring suit.” Thus, defendants “are entitled to know which of Dr. Scott's copyrighted works are in Plaintiff's possession and how Plaintiff obtained such works.” Finally, defendants assert that “[s]ince Plaintiff is an association, Defendants are entitled to challenge Plaintiff's standing” and need information regarding plaintiff's formation in order to do so. *4 Plaintiff responds that the reasons asserted by defendants regarding the relevance of these Interrogatories “reveal that their true motives with respect to the discovery proffered remain pursuing their copyright infringement claims, and not the single claim [for abandonment] that remains before this Court.” Plaintiff argues that the doctrine of unclean hands is inapplicable because plaintiff is not trying to assert any rights accruing to itself as a result of any alleged infringement by plaintiff. Plaintiff further asserts that defendants' statement that plaintiff must have the copyrighted Works in its possession to have standing “is patently false and rightfully provided without citing to any controlling authority because no such authority exists. Plaintiff's claim meets the requirements of a ‘real case or controversy’ and that confers the necessary standing, not whether Plaintiff has copyrighted works in its possession.” Defendants' arguments are not persuasive. The information sought is not relevant and proportional to the needs of the case, which, in its entirety, seeks a declaration regarding whether Dr. Scott abandoned his copyrighted Works. Based on the foregoing, defendants' Motion as to Interrogatory numbers 5, 6, and 7 is denied. C. RFAs IN DISPUTE RFA number 3 asked plaintiff to admit that Dr. Scott was the author of all of the Works contained in the Archive; and RFA numbers 6 and 7 asked plaintiff to admit that it has distributed the Works without permission from Dolores Press or defendant Scott. Plaintiff responded to RFA number 3 stating that it lacked sufficient information to admit or deny the allegations. It objected to RFA numbers 6 and 7 as irrelevant, seeking information relating to defendants' counterclaims and third-party claims, which the District Judge has dismissed (see ECF No. 64), and not relevant to the issue of Dr. Scott's abandonment of his copyrights “or any matter presently before the Court.” Defendants contend that because plaintiff defined the terms “Archive” and “Works”[5] in the First Amended Complaint (“FAC”), plaintiff's objection to RFA number 3 means that “Plaintiff made unsubstantiated allegations in its FAC without having completed a proper Rule 11 investigation” and, therefore, plaintiff “should strike those allegations from the FAC.” Plaintiff responds that it does not know whether Dr. Scott authored “all” of the Works, but that it believes that Dr. Scott held copyrights in the Works and, therefore, its response to RFA number 3 is in full compliance with Rule 33 of the Federal Rules of Civil Procedure. It notes that copyright ownership and authorship “are not the same thing.” Plaintiff also asserts that RFA numbers 6 and 7 “go to the issue of infringement, which is not before the Court, and ... not relevant to this matter.” Defendants' arguments are not persuasive. The information sought by RFA numbers 6 and 7 is not relevant to the case, and plaintiff has provided a response to RFA number 3 that is in compliance with the Federal Rules of Civil Procedure. Based on the foregoing, defendants' Motion as to RFA numbers 3, 6 and 7 is denied. D. RFPs IN DISPUTE RFP number 1 asked plaintiff to produce all documents relating to Dr. Scott's alleged abandonment of the copyright of the Works; RFP number 2 asked plaintiff to produce all communications relating to Dr. Scott's alleged abandonment of the copyright of the Works; and RFP number 3 asked plaintiff to produce all pictures and screenshots of the website www.drgenescott.org. In response to each of these, plaintiff objected that the requested documents are in defendants' possession and stated that it “has no responsive documents not already in Defendants' custody and control.” *5 Defendants argue that plaintiff's response is not sufficient because “Plaintiff has not specified what the documents are that Plaintiff believes Defendants already possess[ ].” As such, it is impossible for them to determine “what the supposed documents in Defendants [sic] possession are that Plaintiff possesses as well,” and the Court must compel plaintiff to provide a further response and responsive documents. Plaintiff responds that “[o]ther than audio and video files, and communication between Patrick Robinson and Defendants, the only documents Plaintiff has in its possession and control are those provided by Defendants in their [Rule] 26(f) disclosures.” Plaintiff submits that to make it “enumerate every single document when they all originated with Defendants is unduly burdensome and not proportional to the needs of the case.” Additionally, plaintiff asserts that to the extent the RFPs seek documentation “tending to support a defense of unclean hands or a claim of infringement, those requests seek irrelevant information ....” Based on the foregoing, defendants' Motion is granted in part. While in general a party must produce documents in its possession, custody, or control even if it believes the other party already possesses the documents (see, e.g., Walt Disney Co. v. DeFabiis, 168 F.R.D. 281, 284 (C.D. Cal. July 3, 1996) (defendant is required to produce documents in his possession, custody, or control, regardless of whether he believes plaintiff already has those documents); Davidson v. Goord, 215 F.R.D. 73, 77 (W.D.N.Y. 2003) (a party may not refuse to respond to a requesting party's discovery request on the ground that the requested information is in the possession of the requesting party)), here the Court finds that pictures and screenshots of the website www.drgenescott.org are publically and equally available to defendants and, as they are only marginally relevant (if at all) to plaintiff's abandonment claim, to require plaintiff to produce them is not proportional to the needs of the case. Furthermore, the Court sees no reason to require plaintiff to produce documents to defendants that it received from defendants in the first place, i.e., in defendants' Rule 26(f) disclosures. To the extent, however, that plaintiff has in its possession, custody, or control: (a) “audio and video files” that are not part of the Archive and were not provided by defendants to plaintiff in their Rule 26(f) disclosures, and/or (b) documents reflecting “communication between Patrick Robinson and Defendants,” and those files and documents are responsive to RFP numbers 1 or 2 and have not already been produced or were not provided by defendants in their Rule 26(f) disclosures, plaintiff shall produce those files and documents. To the extent that plaintiff contends that other than documents being produced in accordance with this Order the only other documents it has in its possession, custody, and control responsive to these RFPs are documents provided by defendants in their Rule 26(f) disclosures, plaintiff shall provide a declaration, signed under penalty of perjury by a corporate officer, confirming that it does not have any additional responsive documents in its possession, custody, or control that were not provided by defendants in their Rule 26(f) disclosures. IV. CONCLUSION Accordingly, defendants' Motion is granted in part and denied in part, as set forth above. No later than February 15, 2018, plaintiff shall produce all further responses and/or documents, as well as any declaration, in accordance with this Order. *6 It is so ordered. Footnotes [1] Patrick Robinson is alleged to be “the sole owner of both Doc's Dream and Truth Seekers.” (ECF No. 35 ¶ 61). [2] It appears to the Court that “Doc's” in this allegation refers to Dr. Gene Scott, and not to plaintiff Doc's Dream. [3] Approximately eight days before plaintiff filed this action, Dolores Press filed a separate action for copyright and trademark infringement against plaintiff and additional parties. See Dolores Press, Inc. v. Patrick Robinson, et al., CV No. 15-2562-R (PLAx). The District Judge granted defendants' Motion to Dismiss in that case and it was dismissed. (See CV No. 15-2562-R (PLAx), ECF Nos. 25, 59). Plaintiff appealed and the appeal is still pending in the Ninth Circuit, case number 17-55069. (CV No. 15-2562-R (PLAx), ECF No. 61). [4] For ease of reference, the Court will refer to the ECF-generated page numbers when referring to the Opposition. [5] It appears that defendants may have defined the terms “works” and “archive” in the discovery they propounded to plaintiff but they do not provide the Court with those definitions. Thus, there is no way for the Court to know whether the terms were defined the same way in the discovery as plaintiff allegedly defined them in the FAC. Moreover, the Court has reviewed the FAC and does not find the term “Works” defined anywhere in the body of the FAC.