Diary of a Copyright Infringement Lawsuit – 11 (Motion to Compel)

Badger at Monument Valley-Copyright Carolyn E. Wright

During the discovery period of a copyright infringement lawsuit, the parties propound written discovery and take depositions. The receiving party often will refuse to respond to some of the discovery relying on objections, such as the request is vague, argumentative, ambiguous, overbroad, burdensome, oppressive, or not likely to lead to admissible evidence. If a respondent asserts an objection, the parties must try to resolve the dispute whether the discovery request is appropriate, often called a “meet and confer.” For example, Central District of California’s Local Rule 37-1 requires a ”Pre-Filing Conference of Counsel”:

Prior to the filing of any motion relating to discovery pursuant to F.R.Civ.P. 26-37, counsel for the parties shall confer in a good faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. It shall be the responsibility of counsel for the moving party to arrange for this conference. If both counsel are located within the same county of the Central District, the conference shall take place in person at the office of the moving party’s counsel, unless the parties agree to meet someplace else. If both counsel are not located within the same county of the Central District, the conference may take place telephonically. Unless relieved by written order of the Court upon good cause shown, counsel for the opposing party shall confer with counsel for the moving party within ten (10) days after the moving party serves a letter requesting such conference. The moving party’s letter shall identify each issue and/or discovery request in dispute, shall state briefly with respect to each such issue/request the moving party’s position (and provide any legal authority which the moving party believes is dispositive of the dispute as to that issue/request), and specify the terms of the discovery order to be sought.

If the parties can’t resolve their differences, the party requesting the discovery can ask the court for assistance through a motion to compel the discovery pursuant to Fed.R.Civ.P. 37. The motion may be made if:

(i) a deponent fails to answer a question asked under Rule 30 or 31;

(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);

(iii) a party fails to answer an interrogatory submitted under Rule 33; or

(iv) a party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.

Examples of Motions to Compel are available here and here along with an Opposition. An example of a court’s order on such a motion is available online here.

Rule 37 provides that, if the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;

(ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or

(iii) other circumstances make an award of expenses unjust.

If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.

 

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