RYAN W. ZIMMERMAN et al., Plaintiffs, v. AL JAZEERA AMERICA, LLC et al., Defendants Civil Case Number 16-00013 (KBJ/RMM) United States District Court, District of Columbia Filed September 26, 2018 Counsel Benjamin A. O'Neil, James C. McGlinchy, Pro Hac Vice, William A. Burck, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, Allison L. McGuire, Pro Hac Vice, DOJ-CRM, Washington, DC, Ellyde R. Thompson, Pro Hac Vice, Kevin S. Reed, Pro Hac Vice, Robert Lloyd Raskopf, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Plaintiff Ryan W. Zimmerman. Benjamin A. O'Neil, James C. McGlinchy, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, Allison L. McGuire, Pro Hac Vice, DOJ-CRM, Washington, DC, Andrew Dewald Herman, Miller & Chevalier, Chartered, Washington, DC, for Plaintiff Ryan James Howard. Andrew Lawrence Deutsch, Pro Hac Vice, Michael Hynes, Pro Hac Vice, DLA Piper LLP, New York, NY, Ellen Elizabeth Dew, Pro Hac Vice, Charles P. Scheeler, DLA Piper US LLP, Baltimore, MD, Geoffrey H. Genth, James P. Ulwick, Kramon & Graham, P.A., Baltimore, MD, Alicia L. Shelton, Pro Hac Vice, DOJ-USAO, Baltimore, MD, Gregg L. Bernstein, Zuckerman Spaeder, LLP, Baltimore, MD, Teale Elizabeth Toweill, DLA Piper LLP, San Francisco, CA, Jonathan William Haray, DLA Piper LLP, Washington, DC, for Defendants Al Jazeera America, LLC, Deborah Davies, Al Jazeera International (USA) Inc. Andrew Lawrence Deutsch, Pro Hac Vice, DLA Piper LLP, New York, NY, Ellen Elizabeth Dew, Pro Hac Vice, Charles P. Scheeler, DLA Piper US LLP, Baltimore, MD, Geoffrey H. Genth, James P. Ulwick, Kramon & Graham, P.A., Baltimore, MD, Alicia L. Shelton, Pro Hac Vice, DOJ-USAO, Baltimore, MD, Gregg L. Bernstein, Zuckerman Spaeder, LLP, Baltimore, MD, Teale Elizabeth Toweill, DLA Piper LLP, San Francisco, CA, Jonathan William Haray, DLA Piper LLP, Washington, DC, for Defendant Al Jazeera Media Network. Matthew D. McGill, Gibson, Dunn & Crutcher, LLP, Washington, DC, for Defendant Gibson, Dunn & Crutcher LLP. Meriweather, Robin M., United States Magistrate Judge MEMORANDUM OPINION *1 Plaintiffs Ryan Zimmerman and Ryan Howard (collectively “Plaintiffs”) raise defamation and invasion of privacy claims against Defendants Al Jazeera America, LLC, Al Jazeera Media Network, Al Jazeera International (USA), Inc., (collectively, “Al Jazeera”), and Deborah Davies (collectively, “Defendants”) based on the publication of a documentary titled “The Dark Side: Secrets of the Sports Dopers” (“The Dark Side” or “the documentary”), which accused Plaintiffs of using performance enhancing drugs. Pending before the Court is Plaintiffs’ Motion to Compel, which seeks to compel Defendants to include former Defendant Liam Collins as a document custodian for the purposes of discovery and to compel Defendants to produce all responsive documents and information contained in Mr. Collins's custodial files, including all email accounts, social media accounts, and cell phones that were used in connection with the work Mr. Collins performed on the documentary. See Pls.’ Mot. to Compel (“Pls.’ Mot.”) at 1, ECF No. 69. Having considered the relevant filings[1], the parties’ arguments and applicable law, the Court will GRANT Plaintiffs’ Motion to Compel. BACKGROUND I. Factual Background On December 27, 2015, Al Jazeera Media Network aired a documentary episode of Al Jazeera Investigates titled “The Dark Side: Secrets of the Sports Dopers.” See Pl. Ryan Zimmerman's First Am. Compl. (“Compl.”) ¶ 37, ECF No. 9. The documentary explores the use of performance enhancing drugs (“PEDs”) in professional sports and how professional athletes allegedly are supplied with PEDs. See generally Tr. of The Dark Side, ECF No. 26-4. In connection with the development of the documentary, Al Jazeera hired Liam Collins, a former British track and field athlete, to pose as a desperate athlete trying to obtain PEDs to qualify for the 2016 Summer Olympics in Rio de Janeiro. Compl. ¶¶ 39–40. Specifically, in May 2015, Al Jazeera engaged Mr. Collins as a “freelance journalist to perform newsgathering services” for The Dark Side. See Pls. Mot., Ex. B (“NDA”) at 5,[2] ECF No. 69-4 (Confidentiality and Non-Disclosure Agreement between Mr. Collins and Al Jazeera). Defendants selected Mr. Collins because they believed his track and field career made him “perfectly placed to go undercover.” Tr. of The Dark Side at 6. On May 15, 2015, Mr. Collins entered into a Confidentiality and Non-Disclosure Agreement (“NDA”) with Al-Jazeera. See NDA at 5, 9. The NDA states that Mr. Collins can only share “confidential information” with Al Jazeera's prior written consent. Id. ¶ 2. The NDA further provides that, if Mr. Collins is compelled to disclose any confidential information relating to his work on The Dark Side, he must provide Al Jazeera with written notice, so that Al Jazeera may seek a protective order or other appropriate remedy. Id. ¶ 5. The agreement specifically defines confidential information to include “any and all information shared verbally or in writing between [Al Jazeera] and [Mr. Collins],” in addition to all “products of journalistic investigation, including the subject matter of the Documentary, the Documentary's subjects, and the sources of information for the Documentary.” Id. ¶ 1. The NDA also assigns Al Jazeera ownership of all “copyrightable ‘Work Product’ ” created in connection with Mr. Collins's work on The Dark Side, including “interim work product.” Id. ¶ 9. This agreement also memorialized Mr. Collins's position as a freelance journalist. See id. at 5; see also Pls.’ Mot., Ex. D (Freelancer Rate Card), ECF No. 69-6 (memorializing that Mr. Collins would be paid $350 per day). *2 On November 5, 2015, Mr. Collins signed an Appearance Release Agreement (“Release Agreement”). See Pls.’ Mot., Ex. A (Appearance Release Agreement), ECF No. 69-3. The Release Agreement contains an indemnification provision, which requires Al Jazeera to defend Mr. Collins should litigation arise out of his work on The Dark Side. Id. ¶ 4. The Release Agreement also notes that “Al Jazeera's indemnification obligations are conditioned upon [Mr. Collins's] (1) prompt notification to Al Jazeera in writing of any claim relating to the Program; (2) cooperation with Al Jazeera in the defense of the claim; and (3) grant to Al Jazeera of sole control over the defense and/or settlement of the claim.” Id. (emphasis added). With the help of the Al Jazeera Investigation Unit in Washington, D.C., Mr. Collins set up meetings with suppliers of PEDs and then recorded their interactions with a hidden camera. Compl. ¶ 40. One of those suppliers, Charlie Sly, alleged that Mr. Zimmerman and Mr. Howard were using Delta-2, a PED banned by Major League Baseball. Id. ¶¶ 41–46; see also Pl. Ryan Howard's First Am. Compl. ¶¶ 45–50, ECF No. 44. In direct response to these allegations, and following the publication of the documentary, Mr. Zimmerman and Mr. Howard brought this action against Defendants. II. The Instant Dispute To facilitate his work on The Dark Side, Al Jazeera provided Mr. Collins with a Gmail account (“Al Jazeera Gmail Account”). See Defs.’ Opp'n at 7. Mr. Collins also had another email address, not created by Al Jazeera, which he used in communications with Al Jazeera employees. See, e.g., Pls.’ Mot., Ex. J, ECF No. 69-12. Several emails between Mr. Collins and Al Jazeera employees reference messages that Mr. Collins transmitted through the Facebook and WhatsApp social media platforms. See Pls.’ Mot., Ex. K, ECF No. 69-13; Ex. L, ECF No. 69-14. On September 26, 2017, Plaintiffs’ counsel sent a letter to Defendants’ counsel requesting the production of emails from all email accounts that Mr. Collins used in connection with his work on The Dark Side, and asked Defendants to confirm that they would collect responsive hard copy materials that Mr. Collins might have maintained while working for Al Jazeera, including Mr. Collins's notes and diaries. See Pls.’ Mot., Ex. U, ECF No. 69-23. In response, Defendants explained that Mr. Collins was never an Al Jazeera employee, and noted that they had already produced the responsive documents connected with the Al Jazeera Gmail Account. See Pls.’ Mot., Ex. H, ECF No. 69-10. On October 23, 2017, Plaintiffs filed the pending Motion to Compel, asserting that Al Jazeera should be required to produce Mr. Collins's personal emails because those records are under Al Jazeera's control within the meaning of Federal Rule of Civil Procedure 34(a)(1). Pls.’ Mot. at 1. Defendants opposed the Motion to Compel and argued that Mr. Collins's personal emails, social media messages, and personal cell phone records were outside of Al Jazeera's control. Def.’s Opp'n at 5–6. LEGAL STANDARD Federal Rule of Civil Procedure 34(a)(1) allows a party to “serve on any other party a request within the scope of Rule 26(b) ... to produce and permit the requesting party ... to inspect, copy, test, or sample ... items in the responding party's possession, custody, or control.” FED. R. CIV. P. 34(a)(1) (emphasis added). Rule 26(b), in turn, allows for “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). Under Federal Rule of Civil Procedure 37, a party seeking discovery through the production of documents under Rule 34, and who believes that the opposing party has failed to meet its obligations under the relevant Rules, may — after conferring in good faith with the opposing party — seek to compel a response. See FED. R. CIV. P. 37(a)(1), 37(a)(3)(B)(i), (iii)–(iv). DISCUSSION *3 The parties’ dispute centers on whether Al Jazeera has sufficient control of Mr. Collins's personal electronic accounts and cell phone to warrant treating Mr. Collins as a custodian and compelling Al Jazeera to produce any relevant and responsive documents contained in those accounts. Plaintiffs contend that Al Jazeera has control over Mr. Collins and his accounts by virtue of its prior relationship with Mr. Collins. Specifically, Plaintiffs argue that: (1) Al Jazeera's contractual relationship with Mr. Collins gives Al Jazeera the legal right, authority, and ability to access Mr. Collins's records; (2) Al Jazeera has a principal-agent relationship with Mr. Collins and therefore has control over Mr. Collins's records; and (3) Al Jazeera has the practical ability to obtain records from Mr. Collins and therefore should be deemed to have control over Mr. Collins's records. See Pls.’ Mem. at 14–19. Al Jazeera denies that its relationship with Mr. Collins conferred control over Mr. Collins's personal accounts and proposes that Plaintiffs should be required to propound Rule 45 discovery requests upon Mr. Collins to procure the records they seek. See Defs.’ Opp'n at 9–16. For the reasons discussed below, the Court finds that Mr. Collins's contractual relationship with Al Jazeera, particularly the Release Agreement that requires Mr. Collins to cooperate with Al Jazeera's defense of the litigation, establishes sufficient control to bring personal electronic accounts that Mr. Collins used in conjunction with his investigative work for The Dark Side within the scope of Al Jazeera's discovery obligations. I. Whether Mr. Collins's Relationship with Al Jazeera Gives Al Jazeera Control Over Records in the Disputed Personal Accounts The D.C. Circuit has defined control as the legal right, authority, or ability to obtain documents upon demand. See U.S. Int'l Trade Comm'n v. ASAT, Inc., 411 F.3d 245, 247 (D.C. Cir. 2005) (dealing with the concept of control in the context of an administrative subpoena); see also Owens-Hart v. Howard Univ., 317 F.R.D. 1, 6 (D.D.C. 2016) (applying the ASAT definition of control to Rule 34(a)); Bush v. Ruth's Chris Steak House, Inc., 286 F.R.D. 1, 5 (D.D.C. 2012) (same). Therefore, in response to a discovery request, a party may be required to produce records that it does not possess, if it has the right or authority to obtain those records. See Alexander v. FBI, 194 F.R.D. 299, 301–02 (D.D.C. 2000). Evaluating whether a party has control of documents that are potentially responsive to discovery is a case-specific inquiry which depends on the specific facts and context presented by each dispute. See CHARLES ALAN WRIGHT ET AL., 8B FEDERAL PRACTICE & PROCEDURE § 2210 (3d ed. Supp. 2018); see also United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 142 F. Supp. 3d 37, 43 (D.D.C. 2015) (finding claimant had control of tax records in custody of the United States); Am. Soc'y for Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 233 F.R.D. 209, 212 (D.D.C. 2006) (finding defendants had control of documents in their counsel's possession); McKesson Corp. v. Islamic Republic of Iran, 185 F.R.D. 70, 78 (D.D.C. 1999) (finding Iranian government had sufficient control over a dairy farm to allow inspection of property because the government's expert had been able to visit the dairy). However, it is well settled that control may arise from a contractual relationship between the parties. See, e.g., Rosie D. v. Romney, 256 F. Supp. 2d 115, 119 (D. Mass. 2003) (noting control under Rule 34(a) “may be established by the existence of ... a legal right through a contractual relationship”); Flagg v. City of Detroit, 252 F.R.D. 346, 353 (E.D. Mich. 2008) (“[T]he requisite ‘legal right to obtain’ documents has been found in contractual provisions that confer a right of access to the requested materials.”). Plaintiffs argue that Al Jazeera has control of the disputed records because, inter alia, the NDA and Release Agreement between Al Jazeera and Mr. Collins give Al Jazeera a legal right to obtain records from the accounts at issue in this motion. Plaintiffs highlight Paragraph 9 of the NDA, which confers to Al Jazeera the rights to all copyrightable work product created by Mr. Collins during his work on The Dark Side. See Pls.’ Mem. at 15. Plaintiffs contend that the requested records constitute “interim work product” and therefore belong to Al Jazeera under the NDA. Id. Plaintiffs also point to language in the Release Agreement that requires Mr. Collins to cooperate with Al Jazeera in the defense of any litigation arising out of Mr. Collins's appearance in The Dark Side. See Pls.’ Mem. at 15-16; Release Agreement ¶ 4. Finally, Plaintiffs assert that they would be unable to obtain the requested information directly from Mr. Collins without Al Jazeera's prior written consent, and construe this as further evidence of Al Jazeera's control over the disputed records. See Pls.’ Mem. at 14–15. To support that argument, Plaintiffs highlight Paragraph 2 of the NDA, which requires Mr. Collins to hold all confidential information “in strictest confidence” and specifically prohibits him from disclosing confidential information without Al Jazeera's prior written consent. Id. at 14 (quoting NDA ¶ 2); see also NDA ¶ 7 (establishing that the terms of the NDA remain in effect in perpetuity); see generally Flagg, 252 F.R.D. at 355 (finding party's ability to block the disclosure of information by withholding consent demonstrated control over information). The NDA defines “confidential information” to include “products of journalistic investigations, including the subject matter of the Documentary, the Documentary's subjects, and the sources of information for the Documentary.” NDA ¶ 1. *4 Defendants, in turn, argue that neither the NDA nor the Appearance Release gives Al Jazeera the legal right to obtain the requested information from Mr. Collins. Defs.’ Opp'n at 11–12. Defendants contend that Paragraph 9 of the NDA “simply clarifies that Al Jazeera has the exclusive right to copyright the work of its investigative unit,” and does not give Al Jazeera the right to search through Mr. Collins's personal records. Id. at 12. Defendants further assert that the indemnification clause in the Appearance Release does not give Al Jazeera the right to demand or search through Mr. Collins's records, and note that Plaintiffs do not cite any case that would support such a reading. Id. Finally, Defendants argue that Paragraph 2 of the NDA is a typical confidentiality provision that would not prohibit Mr. Collins from providing documents to Plaintiffs in compliance with a third-party subpoena. Id. The Court concurs with Plaintiffs and concludes that the terms of the contracts between Mr. Collins and Al Jazeera demonstrate that Al Jazeera has the “legal right or authority” to obtain the disputed records; therefore, Al Jazeera “controls” those records for purposes of Rule 34(a). Notably, the Release Agreement requires Mr. Collins to cooperate with Al Jazeera in the defense of this litigation. See Release Agreement ¶ 4. The Court interprets this cooperation provision to mean that Al Jazeera has the legal right to request Mr. Collins's assistance in all aspects of litigation, including discovery. That meets the definition of “control.” Cf. Doe v. AT&T W. Disability Benefits Program, No. C-11-4603 (DMR), 2012 WL 1669882, at *4–5 (N.D. Cal. May 14, 2012) (ruling that the defendant must produce documents in the possession of third parties because contracts between the defendant and those parties included an audit provision that required the third parties to make those documents available to the defendant following an audit request); Flagg, 252 F.R.D. at 353; Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y. 1992) (defining control to encompass discovery material that a party has a practical ability to obtain and concluding that license agreement that required non-party to cooperate in litigation and history of such cooperation between the parties demonstrated that party had control over records in the non-party's possession). The NDA copyright provision, which states that Al Jazeera legally owns Mr. Collins's interim work product, also supports a finding that Al Jazeera controls the disputed records. See NDA ¶ 9. Communications and notes reflecting Mr. Collins's interactions with third parties in connection with The Dark Side constitute interim work product, as they provide the foundation for Mr. Collins's final investigative work. The fact that Mr. Collins used personal accounts to conduct some of his work would not defeat Al Jazeera's ownership of his work product. See generally NDA ¶ 9 (stating that Al Jazeera owns interim work product without limiting that ownership to business conducted using Al Jazeera resources or accounts). Although ownership may not be dispositive, it provides “a strong indication that [a party] possess[es] the very definition of ‘control’ ” over the disputed records. Ice Corp. v. Hamilton Sundstrand Corp., 245 F.R.D. 513, 521 (D. Kan. 2007). In sum, the contractual relationships between Al Jazeera and Mr. Collins establish that Al Jazeera has control over records and communications reflecting Mr. Collins's work on The Dark Side, even if those records and communications reside solely in Mr. Collins's personal accounts. Because the Court concludes that the NDA and Release Agreement establish that Al Jazeera controls the disputed records, it is unnecessary to consider Plaintiffs’ other theories for demonstrating control. Accordingly, the Court declines to evaluate whether Mr. Collins and Al Jazeera had a principal-agent relationship that would establish control. See McKesson, 185 F.R.D. at 78 (noting that “the control required for Rule 34 purposes may be established by virtue of a principal-agent relationship”). The Court also will not consider whether to follow the line of precedent in which courts have defined “control” to encompass situations where a party has the “practical ability” to obtain records possessed by another party. See, e.g., Ruth's Chris Steak House, 286 F.R.D. at 5. (concluding that control can be established by showing that a party had the “practical ability” to obtain records). *5 The Court recognizes that it may be more burdensome for Al Jazeera to procure responsive records from Mr. Collins and his counsel than to search and produce documents in Al Jazeera's possession. For example, Mr. Collins may dispute the scope of his contractual obligation to assist in discovery and object to searching one or more of his personal accounts and devices. Defendants fear that, in such a situation, they would be held “responsible for any failures of Collins to produce any responsive documents in his sole and exclusive possession.” Defs.’ Opp'n at 5. However, if Al Jazeera's good faith efforts to obtain records from Mr. Collins prove unsuccessful, Defendants may present the issue to the Court and ask the Court to craft a remedy to alleviate the burden of obtaining records from an uncooperative third party. II. Attorney's Fees and Costs Both parties seek an award of the costs and attorney's fees that they incurred in briefing the Motion to Compel. Pls.’ Mem. at 19–20; Defs.’ Opp'n at 17. Under Federal Rule of Civil Procedure 37(a)(5)(A), if a motion to compel is granted, “the court must order ... the party ... whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” FED. R. CIV. P. 37(a)(5)(A). However, “the court must not order this payment if ... the opposing party's nondisclosure, response, or objection was substantially justified” or “other circumstances make an award of expenses unjust.” Id. “[A] party meets the ‘substantially justified’ standard when there is a ‘genuine dispute’ or if ‘reasonable people could differ’ as to the appropriateness of the motion.” Alexander v. FBI, 186 F.R.D. 144, 147 (D.D.C. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). Importantly, the opposing party's response need not be “justified to a high degree.” Pierce, 487 U.S. at 565. Defendants’ initial objection to the request for records from Mr. Collins's personal accounts was substantially justified. Although the Court resolved this dispute in favor of Plaintiffs, both parties made plausible arguments in support of their positions. Defendants’ position was based on a plausible reading of the NDA, the Release Agreement, and relevant case law. In light of the “absence of controlling authority, and the [fact that the] issue presented is one not free from doubt and could engender a responsible difference of opinion among conscientious, diligent but reasonable advocates,” that position was “substantially justified.” Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 200, 205 (D.D.C. 1998). Therefore, an award of costs and fees would be inappropriate. See CapitalKeys, LLC v. Ciber, Inc., No. 11-CV-00975 (JDB), 2012 WL 2879022, at *1–2 (D.D.C. July 13, 2012) (denying fees upon granting motion to compel after finding defendant was not “so unreasonable as to require sanctions under Rule 37(a)”); see also Simms v. Ctr. for Corr. Health and Policy Studies, 272 F.R.D. 36, 42 (D.D.C. 2011) (denying motion for fees upon finding that defendant's nondisclosure of discovery material was substantially justified because no protective order was in place). But see Jackson v. CCA of Tennessee, Inc., 254 F.R.D. 135, 140 (D.D.C. 2008) (finding there was no substantial justification for the plaintiff's failure to cooperate with a deposition). CONCLUSION For the foregoing reasons, the Court hereby GRANTS Plaintiffs’ Motion to Compel [ECF No. 69]. Al Jazeera shall designate Mr. Liam Collins as a document custodian and shall, in conjunction with Mr. Collins's personal attorney(s), conduct appropriate searches of any of Mr. Collins's accounts and/or devices that were used in connection with his work on the documentary as well as any hard copy materials that Mr. Collins possesses that are responsive to Plaintiffs’ discovery requests. Footnotes [1] Pls.’ Mot., Pls.’ Mem. of Law in Supp. of their Mot. to Compel (“Pls.’ Mem.”), ECF No. 69-1; Defs.’ Mem. of Law in Opp'n to Pls.’ Mot. to Compel (“Defs.’ Opp'n”), ECF No. 72; Pls.’ Reply Mem. of Law in Supp. of their Mot. to Compel (“Pls.’ Reply”), ECF No. 73. [2] The page numbers cited herein correspond to the numbering in the ECF header of the relevant filing.