Arista Records LLC et al v. Lime Group LLC et al, No. 2:2010cv02074 - Document 10 (W.D. Wash. 2011)
Court Description: ORDER denying 1 Defendants' Motion to Compel by Judge Marsha J. Pechman.(MD)
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Arista Records LLC et al v. Lime Group LLC et al Doc. 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 ARISTA RECORDS LLC, et al., 11 Plaintiffs, ORDER ON MOTION TO COMPEL v. 12 13 CASE NO. 2:10-CV-02074-MJP LIME GROUP LLC, et al., Defendants. 14 15 16 This matter comes before the Court on Defendants’ motion to compel. (Dkt. No. 1.) 17 Having reviewed the motion, the response (Dkt. No. 5), the reply (Dkt. No. 8), the supplemental 18 declaration of Paul W. Horan (Dkt. No. 9) and all related papers, the Court DENIES Defendants’ 19 motion. Background 20 21 Defendants Lime Group LLC, Lime Wire LLC, Mark Gorton, and M.J.G. Lime Wire 22 Family Limited Partnership (collectively, “Defendants”) are engaged in a case (No. 06-cv-5936 23 (KMW)) pending in the Southern District of New York. (Decl. of Paul W. Horan (Dkt No. 1-2) 24 at ¶ 3.) In that case, the amount of damages Defendants owe Plaintiffs (thirteen record labels) ORDER ON MOTION TO COMPEL- 1 Dockets.Justia.com 1 for copyright infringement is at issue. (Id. at ¶ 3.) Defendants served a subpoena on non-party 2 Amazon.com, Inc. (“Amazon”) on September 24, 2010, in connection to that case. (Id. at ¶ 5.) 3 Defendants contend the subpoenaed records are relevant to evaluating Plaintiffs’ lost profits— 4 and thus damages owed by Defendants—in the Southern District of New York case. 5 On October 22, 2010, Amazon objected on grounds that the documents requested were 6 obtainable from Plaintiffs directly, and that the requests were overbroad, burdensome, and 7 irrelevant. (Id. at ¶ 9.) Amazon contends that seeking responsive documents from its more than 8 1,000 employees, and producing sales figures for more than 11,000 songs, would entail 9 significant expense. (Decl. of Andrew DeVore (Dkt. No.4) at ¶ 6–10.) Amazon had raised 10 similar objections in 2007, when Defendants previously subpoenaed them in connection to the 11 same case. (Id. at ¶ 8.) Though Defendants had not sought to enforce the 2007 subpoena, on 12 December 16, 2010, they filed this motion to compel. (Dkt. No. 1.) The court in the underlying 13 action ordered VEVO, LLC (“VEVO”), a non-party, to comply with a subpoena similar to the 14 one at issue. 15 16 Analysis The Federal Rules of Civil Procedure require this Court to limit discovery it determines is 17 “unreasonably cumulative or duplicative, or can be obtained from some other source that is more 18 convenient, less burdensome, or less expensive,” or when “the burden or expense of the 19 proposed discovery outweighs its likely benefits.” Fed. R. Civ. P. 26(b)(2)(C)(i), (iii). 20 Restrictions may be broader when discovery burdens a non-party. See Dart Indus. Co. v. 21 Westwood Chemical Co., 649 F.2d 646, 649 (9th Cir. 1980). A party should not be permitted to 22 seek information from a non-party that they can obtain or have obtained from the opposing party, 23 and that is not relevant to the underlying case. Instituform Technologies, Inc. v. Cat. 24 ORDER ON MOTION TO COMPEL- 2 1 Contracting, Inc., 914 F. Supp. 286, 287 (N.D. Ill. 1996). Because the documents requested 2 from Amazon can better be obtained from Plaintiffs or have little relevance to the Southern 3 District of New York case, Defendants’ need to enforce the subpoena is outweighed by the 4 burden to Amazon. 5 A. Necessity of Obtaining Documents from Amazon 6 Defendants seek documents including (1) licenses and agreements between Amazon and 7 Plaintiffs, (2) communications regarding those documents, and (3) documents regarding payment 8 by Amazon to Plaintiffs pursuant to those licenses. Defendants argue that licensing agreements 9 and communications between Amazon and Plaintiffs will be probative of lost revenue, and that 10 Amazon internal communications will be probative of Plaintiffs’ conduct and attitude. “Lost 11 revenues” and “the conduct and attitude of the parties” will be two factors used in determining 12 Plaintiffs’ damages in the Southern District of New York case. Bryant v. Media Rights Prods., 13 Inc., 603 F.2d 135, 144 (2d Cir. 2010) (citing N.A.S. Import, Corp. v. Chenson Enter., Inc., 968 14 F.2d 250, 250–53 (2d Cir. 1992)). 15 1. 16 Documents requested from Amazon are obtainable from Plaintiffs. When an opposing Agreements and communications between Amazon and Plaintiffs 17 party and non-party both possess documents, the documents should be sought from the party to 18 the case. Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 577 (N.D. Cal. 2007) (“There is 19 simply no reason to burden nonparties when the documents sought are in possession of the party 20 defendant.”); Moon v. SCP Pool Corp., 232 F.R.D. 633, 637–38 (C.D. Cal. 2005). (documents 21 pertaining to defendant could more easily and inexpensively be obtained from defendant than 22 non-party). 23 24 ORDER ON MOTION TO COMPEL- 3 1 Here, documents requested from Amazon regarding agreements or communications with 2 Plaintiffs are also obtainable from Plaintiffs directly. See Instituform Techs. at 287 (information 3 about license between party and non-party equally obtainable from party). Indeed, Plaintiffs 4 have already provided or been ordered to provide to Defendants much of the information 5 requested from Amazon. (Powers Decl. at ¶ 6.) Defendants rely on In re Honeywell Int’l, Inc. 6 Sec. Litig., 230 F.R.D. 293, 301 (S.D.N.Y. 2003) and the November 3 VEVO order in this case 7 to argue that non-parties may be subpoenaed for documents obtainable from parties. Both are 8 distinguishable. The subpoenaed non-party in the Honeywell was defendant’s financial auditor 9 during portions of that case’s class period. 230 F.R.D. at 296. VEVO, though a non-party, is a 10 joint venture of two Plaintiffs, and actually volunteered to produce documents. (Ex. 2 to Decl. of 11 Vanessa Powers (Dkt. No. 6).)Thus, both those non-parties possessed greater ties to the litigants 12 than does Amazon to these litigants. Because information contained in the licensing agreements 13 and associated communications are available from Plaintiffs directly, the requests to Amazon are 14 duplicative. 15 2. 16 Requested internal Amazon documents have little relevance to the underlying case. Amazon internal documents 17 Defendant argues that the Southern District of New York court determined internal non-party 18 communications are probative of parties conduct and attitude, relying on the VEVO order. But, 19 again, because VEVO is a joint venture between Plaintiffs, it cannot be wholly deemed a non20 party. The probative value of VEVO’s internal communications to Plaintiffs’ attitude and 21 conduct is much greater than that of Amazon’s. Accordingly, requests for Amazon’s internal 22 communications are not relevant to the case. 23 \\ 24 ORDER ON MOTION TO COMPEL- 4 1 B. Undue Burden on Amazon 2 “An evaluation of undue burden requires the court to weigh the burden to the subpoenaed 3 party against the value of the information to the serving party.” Moon at 637 (quoting Travellers 4 Indem. Co. v. Metropolitan Life Ins. Co., 228 F.R.D. 111, 113 (D.Conn. 2005)). The need of the 5 serving party, breadth of the request, and the time period covered by it, are also factors. See 6 Bridgeport Music, Inc. v. UMG Recordings, Inc., No. 05 Civ. 6430, 2007 WL 4410405, at *2 7 (S.D.N.Y. Dec. 17, 2007). In Bridgeport, the court held a subpoena which might require going 8 through “hundreds” of files generated over two years not unduly burdensome. Bridgeport at *2, 9 4. The court distinguished the subpoena from that considered in Concord Boat Corp. v. 10 Brunswick Corp., 169 F.R.D. 44 (S.D.N.Y. 1996). Bridgeport at *2. The subpoena in Concord 11 Boat Corp. “effectively encompass[ed] documents relating to every transaction undertaken by 12 [the party subject to the subpoena] for [the defendant] during the last ten years.” Bridgeport at 13 *2 (quoting Concord Boat Corp. at 50). 14 Here, the subpoena among other things requests daily sales information for 11,000 15 individual songs over a five year period, and essentially all documents or communications 16 concerning dealings between Amazon and the thirteen Plaintiffs. The burden is similar to the 17 burden imposed by the broad subpoena in Concord Boat Corp.. Balanced against this burden, 18 Defendants’ need for duplicative or irrelevant documents from Amazon weighs very little. 19 Because the hardship to Amazon in producing the requested documents outweighs their benefit 20 to Defendants, the subpoena is unduly burdensome. 21 22 Conclusion The Court DENIES Defendants’ motion to compel. The Court is not bound by 23 Magistrate Judge Freeman’s January 31, 2011 Order relating to the obligations of others to 24 ORDER ON MOTION TO COMPEL- 5 1 produce documents relating to their licenses. Defendants should seek relevant documents from 2 Plaintiffs before burdening non-party Amazon. Because documents related to Amazon’s internal 3 communications are irrelevant, the significant burden placed on Amazon in complying with 4 Defendants’ subpoena outweighs the value of the documents to Defendants. Defendants’ motion 5 to compel is hereby DENIED. 6 The clerk is ordered to provide copies of this order to all counsel. 7 Dated this 9th day of February, 2011. 8 9 11 A 12 Marsha J. Pechman United States District Judge 10 13 14 15 16 17 18 19 20 21 22 23 24 ORDER ON MOTION TO COMPEL- 6
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