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Boehm v. Scheels All Sports, Inc.

United States District Court, W.D. Wisconsin

November 1, 2016

SCOTT BOEHM and DAVID STLUKA, Plaintiffs,
v.
SCHEELS ALL SPORTS, INC., et al., Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiffs, sports photographers Scott Boehm and David Stluka, allege copyright infringement and related claims against numerous defendants, who are mostly sports memorabilia dealers who sell reproductions of sports photographs. The motions before the court arise out of a drawn-out discovery dispute between plaintiffs and defendant David Thomason. Plaintiffs move under Federal Rule of Civil Procedure 37 to compel Thomason to produce discovery and to permit a neutral third party e-discovery expert to inspect all of his electronic records and systems for discovery. Dkt. 517. Plaintiffs also move for an order holding Thomason in contempt for violating the preliminary injunction. Dkt. 518.

         Thomason has been proceeding pro se since August 3, 2016. See Dkt. 503. Thomason filed a late response to plaintiffs' motions, in which he contests a number of plaintiffs' allegations but does not oppose the substance of plaintiffs' motions. Dkt. 614. The court will grant plaintiffs' motion to compel because plaintiffs request relevant documents, Thomason has demonstrated an inability to fully respond to plaintiffs' discovery requests in the past, and Thomason does not oppose the motion. The court will also grant plaintiffs' motion for an order of contempt because Thomason failed to fully comply with the court's preliminary injunction, and again, Thomason does not oppose the motion. The court will not award the most severe sanctions plaintiffs request, but will allow plaintiffs to recover the reasonable attorney fees and costs associated with bringing their motion for an order of contempt.

         A. Motion to permit a third-party inspection of electronic records and systems

         Thomason did not comply with the court's preliminary injunction and appears not to have produced all materials responsive to plaintiffs' discovery requests. Plaintiffs are understandably upset and move to compel Thomason to permit a neutral third party e-discovery expert to inspect all electronic records and systems in Thomason's possession, custody, or control, including email and business accounts. The court concludes that inspection is warranted and will grant plaintiffs' motion.

         Courts determining whether a search of electronically stored information is appropriate may consider a number of factors:

(1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues as stake in the litigation; and (7) the parties' resources.

Fed. R. Civ. P. 26(b)(2) advisory committee's note to 2006 amendments.

         Several factors weigh in favor of granting plaintiffs' motion. First, Thomason has previously failed to produce relevant information in response to plaintiffs' request. After repeatedly telling plaintiffs and the court that he did not possess any copies in any form of the photographs at issue in this lawsuit, he produced digital copies of some of those photographs and admitted that he still has one print of a covered photograph in his inventory. Second, the documents plaintiffs seek are relevant to determining the extent of Thomason's infringement. Third, plaintiffs have attempted but been unable to obtain the materials they request from other sources. Finally, Thomason does not oppose this motion. So the court will order Thomason to permit a neutral third party e-discovery expert to inspect all electronic records and systems in Thomason's possession, custody, or control, including email and business accounts, for materials responsive to plaintiffs' requests for production of documents. Plaintiffs must pay the costs associated with this inspection, but they may move to recover their costs as a sanction against Thomason if the inspection uncovers any discovery violations.

         B. Motion to compel production of documents

         Plaintiffs move to compel Thomason to produce (1) “documents and evidence, ” including posted photographs, related to items Thomason sold through his websites and his eBay and Amazon accounts; and (2) “documents and communications exchanged with co-defendants [and nonparties] Dan and Ciara Zimprich.” Dkt. 519, at 2. Plaintiffs allege they have not received all available materials from Thomason, despite having requested them more than 10 months ago. It is not clear what materials Thomason has that he has not yet produced, but the court will compel him to produce whatever he has. However, the court will narrow plaintiffs' first request and provide Thomason an opportunity to protect any privileged materials from production under the second request.

         When deciding whether to grant a motion to compel discovery, the court must consider whether the requested discovery is relevant, “proportional to the needs of the case, ” and nonprivileged. Fed.R.Civ.P. 26(b)(1). Public policy favors disclosure of relevant materials. Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002).

         Plaintiffs' first request for materials related to items Thomason sold online is vague and overbroad. The court will narrow this request to all records, including posted photographs, of Thomason's online sales of sports photos. This narrowed request is relevant to the extent of Thomason's infringement. The court will assume the request is proportional because Thomason does not argue that disclosure would burden him. Thomason has not claimed that the documents are privileged. Therefore, the court will order Thomason to produce all records, including posted photographs, of Thomason's online sales of sports photos, including sales through Thomason's websites and eBay and Amazon accounts.

         Plaintiffs' second request for communications exchanged with Thomason's co-defendants and the Zimpriches is relevant to the extent of Thomason's infringement. The court will assume the request is proportional because Thomason does not argue that disclosure would burden him. However, some of Thomason's communications with co-defendants may be privileged. According to plaintiffs, Thomason's counsel, before withdrawing, claimed that the request for communications involved privileged information, and co-defendant Event USA made the same claim. But neither Event USA, nor Thomason's counsel, nor Thomason himself ever provided a privilege log describing the nature of the documents being withheld and expressly making the claim of privilege, as is required by Rule 26(b)(5). Plaintiffs argue that any privilege thus has been waived. See Ott v. City of Milwaukee, No. 09-cv-870, 2010 WL ...


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