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Yellow Pages Photos, Inc. v. YP, LLC

United States District Court, M.D. Florida, Tampa Division

August 14, 2019

YELLOW PAGES PHOTOS, INC., Plaintiff,
v.
YP, LLC and PRINT MEDIA LLC, Defendants.

          ORDER

          JULIE S. SNEED UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Yellow Pages Photos, Inc.'s Motion for Discovery Sanctions Against Defendants YP, LLC and Print Media, LLC (“Motion”) (Dkt. 124), with Defendants' response in opposition (Dkt. 140) and Plaintiff's reply in support (Dkt. 147).[1]On June 19, 2019, the Court held a hearing on the Motion. For the reasons set forth below, the Motion is denied.

         BACKGROUND

         Plaintiff is the alleged holder of several federally registered copyrights over numerous stock photographic images. (Dkt. 45 ¶¶ 15-20.) In this action, Plaintiff alleges Defendants have infringed on its copyrights by using Plaintiff's images online and in print advertisements without authorization. (Dkt. 45 ¶¶ 24-31, 38-43.) On December 14, 2017, Plaintiff moved to compel Defendants to produce discovery related to the allegedly infringing advertisements and damages. (Dkt. 71 at 11-21; Dkt. 72 at 9-19.) After directing the parties to confer on the discovery requests (Dkt. 80), the Court held a hearing on the motions on March 13, 2018. (Dkt. 87.) Following the hearing, the Court entered an order granting the motions, noting that “Defendants have no remaining objections to the [requests for production], Defendants have produced responsive documents on a monthly basis since December 2017, and Defendants agree to complete their remaining production in April 2018.” (Dkt. 89 at 1.) The Court directed the parties to “continue meeting and conferring through May 31, 2018, and notify the Court if a discovery status conference is requested within 14 days thereafter.” (Dkt. 89 at 2.)

         Months passed until the Court sua sponte scheduled a discovery status conference to take place on October 15, 2018. (Dkt. 95.) In anticipation of the hearing, Plaintiff filed a notice alleging discovery deficiencies. (Dkt. 96.) Defendants responded with a notice alleging that Plaintiff was manufacturing discovery disputes prior to the status conference. (Dkt. 97.) At the hearing, the Court scheduled deadlines to produce disputed discovery. (Dkt. 99.) Additionally, the Court scheduled additional discovery status conferences in November and December of 2018 and ordered the parties to file status reports in anticipation of those hearings. (Dkt. 100.) In the November status report, Plaintiff noted that it was reviewing discovery produced in October, but reported that, as far as it was aware, Defendant had complied with its discovery obligations. (Dkt. 104.) Defendants similarly reported compliance with the Court's order. (Dkt. 105.) At the hearing, the Court set additional deadlines to ensure timely production of discovery. (Dkt. 107.)

         In anticipation of the December status conference, Plaintiff once again noted no discovery deficiencies. (Dkt. 110.) Plaintiff noted that it was reviewing discovery produced in November but noted that it had “no reason to doubt the veracity of Defendants' representations regarding” the discovery produced, and its review so far indicated that Defendant's representations were accurate. (Dkt. 110 at 2.) Defendant once again reported compliance with the Court's orders and ongoing production of the requested discovery. (Dkt. 111.) At the hearing, the parties assured the Court that discovery was progressing and that corporate representative depositions were scheduled for January 2019. (Dkt. 112.) The Court ordered the parties to meet and confer regarding any objections to the deposition topics. (Dkt. 112.)

         Discovery closed on March 15, 2019 (Dkt. 94), with no further motions or indications of discovery disputes. On April 22, 2019, Defendants filed their motion for summary judgment. (Dkt. 119.) On April 29, 2019, prior to responding to the motion for summary judgment, Plaintiff filed the instant Motion, which asks the Court to preclude Defendant from raising certain defenses based on deficient discovery responses and inadequately prepared corporate representatives. (Dkt. 124.)

         APPLICABLE STANDARDS

         Under Federal Rule of Civil Procedure 37, if a party “fails to obey an order to provide or permit discovery, ” the Court may “issue further just orders, ” including “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims” or “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed.R.Civ.P. 37(b)(2)(A)(i)-(ii). The Court “has broad authority under Rule 37 to control discovery” and “sanctions are intended to prevent unfair prejudice to the litigants and [e]nsure the integrity of the discovery process.” Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999). However, the “exclusion of otherwise admissible evidence probative of a core issue” is warranted, “if ever, only in an instance of the most egregious, purposeful, calculated, and otherwise irremediable enormity by a litigant or by counsel or by both and, even then, only if the evidence establishing the enormity and the malevolence that created the enormity is nothing less than distinct and unmistakable.” United States v. CMC II LLC, No. 8:11-cv-1303-T-23TBM, 2016 WL 7665764, at *1 (M.D. Fla. Dec. 1, 2016). Additionally, sanctions are not generally warranted where a party has shown that it made all reasonable efforts to comply with the court's order. BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1050 (11th Cir. 1994).

         ANALYSIS

         The Court agrees with Defendants that the Motion is due to be denied as untimely. As the background discussed above demonstrates, the Court has held numerous hearings and discovery status conferences in this case. However, the Motion-filed more than a month after the close of discovery-raises several alleged discovery deficiencies for the first time. Plaintiff argues that the delay is due to rolling production of discovery. (Dkt. 147.) However, the rolling production of documents does not explain the delay in challenging the testimony of Defendants' corporate representatives more than three months after the depositions and more than one month after the close of discovery. Plaintiff makes no justification for this delay.

         Additionally, although the Court did contemplate rolling production of certain contracts and revenue information, the Court ordered production “on a rolling basis to complete the discovery within the discovery deadline.” (Dkt. 107 at 1.) To the extent the parties agreed to rolling production of images beyond the discovery deadline, the parties assumed the risk of incomplete discovery. See Middle District Discovery (2015) at I.F.1. (“Counsel, by agreement, may conduct discovery after the formal completion date but should not expect the Court to resolve discovery disputes arising after the discovery completion date.”).

         Even if considered on the merits, Plaintiff has not established a basis for discovery sanctions. Plaintiff's argument that discovery is incomplete is either speculative or refuted by the record. For example, Plaintiff argues that Defendants must have additional high-resolution images because they produced low-resolution images. (Dkt. 124 at 8-9.) However, throughout this litigation, Defendants have explained that they “do not have the technological capability to search their systems for [Plaintiff's] images.” (Dkt. 140 at 9.) Instead, the parties agreed that Defendants would search for Plaintiff's images in the locations where Defendants store stock images. (Dkt. 140 at 9.) Defendants have established that they searched the “art library where they store stock images to identify and collect any images that could have been sourced from” Plaintiff. (Dkt. 140-2 at 2.) This is sufficient to satisfy Defendant's discovery obligations. See Middle District Discovery (2015) at III.A.5. (explaining that a party has “complied with the duty to respond to a document request” if it has “[e]nsured a reasonable inquiry with those persons and a reasonable search of those places likely to result in the discovery of responsive documents” and produced those documents”).

         Next, Plaintiff argues that Defendants' revenue spreadsheets are deficient because they “fail to include advertisements that [Plaintiff] identified to Defendants as containing” Plaintiff's images. (Dkt. 124 at 11.) In its reply, Plaintiff identifies only one advertisement allegedly missing from the spreadsheets, a magnetic tip-on ad. (Dkt. 147 at 3.) But at the hearing, Defendants established that Plaintiff never properly identified an infringing image in the tip-on ad. Plaintiff also presumes that the spreadsheets are inaccurate because they list zero revenue for certain ...


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