Copyright Law

Court denies Tenenbaum's motion to compel interrogatory answers

By Ty Rogers and Ray Beckerman

In SONY BMG Music Entertainment v. Tenenbaum, the Court has denied defendant's motion to compel interrogatory answers, but ordered plaintiffs to produce certain sales information. The court's order is as follows:

Judge Nancy Gertner: Electronic ORDER entered granting in part and denying in part [852] Motion to Compel. "The Defendant's Motion to Compel [852] is GRANTED in part and DENIED in part. As a general matter, the Defendant's discovery requests are untimely under Fed.R.Civ.P. 33(b)(2). Counsel filed his appearance in this case on September 22, 2008, when discovery was already underway. Yet he did not file his First Set of Interrogatories until May 8, 2009, more than seven months later, when the Court had already ordered that discovery would close on May 30, 2009. See February 23, 2009 Order at 3 (document # 759). Rule 33(b)(2) provides that a party shall have 30 days from the date of service to respond to interrogatories, unless that period is altered by stipulation or court order. As a result, in order to be considered timely, such requests must be served with enough time for responses to be made before the discovery deadline. See Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir. 2003); Ginett v. Federal Express Corp., 166 F.3d 1213 (6th Cir. 1998) (unpublished); Whitman v. Proconex, Inc., 2009 WL 113740, at *4 (E.D. Pa. 2009); Williams v. Little Rock Mun. Water Works, 155 F.R.D. 188, 189 (E.D. Ark. 1993). Defendant's counsel protests that the case did not crystallize until early May and that his team's energies were consumed by the abuse of process counterclaims that the Court has now dismissed, the constitutional challenge that the Court has deferred, and the webcast dispute. Lawyers, however, constantly face strategic choices about how to expend limited time and resources to advance their client's case. Discovery is obviously a central tool in defending against a civil suit; it is hardly an afterthought. Moreover, many of the issues raised in the interrogatories -- the ownership of the copyrighted works and factors relating to damages -- have been at the core of this case from its inception. Having delayed seeking this discovery until the deadline was weeks away, and having failed to request a timely extension from the Court, Tenenbaum has forfeited his right to compel the Plaintiff to answer any interrogatories unrelated to the fair use issue. However, because the Court has held discovery open on fair use, discovery requests on this subject served prior to June 22, 2009, the deadline set by the Court, are treated as timely. See Revised Scheduling Order at 5 (document # 850). Yet even here the Defendant's late-breaking effort to add the fair use defense, and the imminent trial date reaffirmed today by the parties, necessarily limits the breadth of the available discovery. See Fed.R.Civ.P. 26(b)(2)(C). Thus, to the extent that Interrogatories 2, 3, and 8 seek information related to the fair use analysis under 17 U.S.C. 107(4) (requiring consideration of "the effect of the use upon the potential market for or value of the copyrighted work"), the Court will permit some investigation. By July 10, 2009, the Plaintiffs shall provide the Defendant with yearly estimates, beginning in 1999, of the revenues generated by their copyrights in the specific songs for which they intend to prove infringement at trial. They should separate physical and digital music sales and should provide Defendant with a description of the methodology used to arrive at these figures. The Court will reconsider the need for discovery on any issues relating to actual damages if and when the Defendant's constitutional challenge becomes ripe -- i.e., should the jury award damages against him." (Gaudet, Jennifer)

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

Full post as published by Recording Industry vs The People on June 30, 2009 (boomark / email).