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Creative Co-Op, Inc v. the Elizabeth Lucas Company

March 7, 2012

CREATIVE CO-OP, INC., PLAINTIFF,
v.
THE ELIZABETH LUCAS COMPANY, LLC, ELIZABETH LUCAS, AND SCOTT LUCAS DEFENDANTS.
THE ELIZABETH LUCAS COMPANY, LLC, ELIZABETH LUCAS, AND SCOTT LUCAS COUNTERCLAIMANTS,
v.
CREATIVE CO-OP, INC. COUNTERDEFENDANT.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

ORDER RE: DISCOVERY MOTIONS (Dkts. 62 & 67)

Pending before the Court are a Motion for Protective Order Limiting Defendants' First Revised Set of Requests for Production of Documents, filed by Plaintiff/Counterdefendant Creative Co-Op, Inc. (Dkt. 62), and a Motion to Compel Documents and Things, filed by Defendants/Counterclaimants The Elizabeth Lucas Company, LLC, Elizabeth Lucas, and Scott Lucas (the "Defendants") (Dkt. 67). The Motion to Compel seeks production of documents requested by Defendants' First Amended Request for Production of Documents, the same discovery request at issue in Creative Co-Op's Motion for Protective Order. Defs.' Mot., p. 2 (Dkt. 67). The Court has considered the entire record and the parties' briefs and now enters the following order on the parties' cross-motions:

BACKGROUND

Defendants allege that Creative Co-Op "copied" some of Defendants' products (works of art) and sold them at a much lower price than that Defendants' charged. Defendants sent a letter to Creative Co-Op when they discovered the alleged copying, asking Creative Co-Op to stop selling the products. Creative Co-Op then filed this declaratory judgment action, asserting copyright invalidity and non-infringement. Compl., pp 3-4, Exs. 1-3 (Dkt. 1). Defendants responded and filed counterclaims for copyright infringement, unfair competition, and trade dress infringement. Defendants' counterclaims allege that Creative Co-Op has infringed their copyrights and trade dress in five products and that Creative Co-Op has engaged in unfair competition. (Dkt. 49).

Defendants' first request for production of documents was met with a motion for protective order. This Court denied the motion for protective order for failure to demonstrate that the parties had adequately met and conferred.*fn1 Thereafter, the parties met, conferred, and exchanged written correspondence, the result of which was a revised request for production of documents. In response to this revised request, Creative Co-Op has provided 13 pages of documents. Creative Co-Op also has provided initial disclosures and supplemental initial disclosures, producing 162 total pages of documents, and plans to produce a disc of images. Thus, Creative Co-Op, to date, has produced some responses to the discovery requests to which it has not objected. Defendants seek responses to all of their requests and Creative Co-Op seeks further limitations on those requests.

One key debate centers on whether Creative Co-Op should be required to produce documents related to allegations of intellectual property infringement made by third parties against Creative Co-Op. In particular, the parties are currently engaged in proceedings in the Northern District of California, initiated by Creative Co-Op's motion to quash a subpoena seeking information about a lawsuit initiated by Regal Art & Gift, Inc. for copyright infringement, unfair competition, and trade dress infringement. That court has scheduled a hearing on the matter. In short, in those proceedings Creative Co-Op opposes Defendants' attempt to obtain (from an attorney involved in the Regal Art & Gift litigation) one non-privileged document form that litigation - Creative Co-Op's response to Regal Art's accusations of infringement.

DISCUSSION

A. Legal Standards

Federal Rule of Civil Procedure states that, in general, any matter relevant to a claim or defense is discoverable. "Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense . . . ." Fed. R. Civ. P. 26(b). Moreover, relevancy does not mean admissibility: "relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. (emphasis added).

The general rules is not, however, without limitation. Upon a showing of good cause, the Court may exercise its discretion to issue any protective order "which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense," including any order prohibiting the requested discovery altogether, limiting the scope of the discovery, or fixing the terms of disclosure. Fed. R. Civ. P. 26(c). Creative Co-Op's burden here is to "show good cause" by demonstrating harm or prejudice that will result from the discovery. See Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004). "For good cause to exist, the party seeking protection bears the burden of showing what specific prejudice or harm will result if no protective order is granted." Phillips v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002).

Consistent with the above standards, the Court will conduct a two part inquiry. First, it is necessary to determine whether the information sought is relevant under Rule 26(b). If so, then the Court determines whether disclosure should be otherwise limited or even prohibited based on the additional considerations Creative Co-Op argues should preclude or limit discovery.

B. Specific Limitations Requested

Creative Co-Op requests that the Court enter a Protective Order: (1) quashing Request Nos. 9, 10, 11, 17, 18, and 19 as irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; (2) quashing Request Nos. 12 and 21 as overbroad, duplicative, and not reasonably calculated to lead to the discovery of admissible evidence, and directing Defendants to narrow Request No. 12 and to withdraw Request No. 21, and/or serve an appropriate corresponding Interrogatory; (3) quashing Request No. 13 as overbroad and unduly burdensome; and (4) limiting the relevant time period of Defendants' remaining and future discovery requests to the purported dates of first publication of ...


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