Reiffer v. Moeller

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] Paul Reiffer, ) No. CV 20-00561-TUC-RM (LAB) 9 ) Plaintiff, ) ORDER 10 ) vs. ) 11 ) M. Ted Moeller and Moeller Law Office,) 12 P.C.., ) ) 13 Defendants. ) ) [14] Pending before the court is the plaintiff’s motion to compel discovery filed on August [15] 18, 2021. (Doc. 31) The defendants filed a response on September 1, 2021, and the plaintiff [16] filed a reply on September 8, 2021. (Doc. 38); (Doc. 39) [17] This is a copyright infringement action. The plaintiff, Paul Reiffer, is a professional [18] photographer “who makes his living by taking, licensing, and selling his photographs.” [19] (Doc. 31, p.1) He alleges that the defendants used one of his photographs (the Photo), an [20] image of the Colorado river’s horseshoe bend, to advertise their legal services without his [21] permission. [22] The Photo is a relatively expansive view of horseshoe bend with the sun setting on the [23] horizon, under a band of clouds. (Doc. 1, p. 3); (Doc. 30, p. 3) The Complaint alleges that [24] the defendants advertised their legal services by using a “cropped” version of the Photo. Id. [25] This version shows a view of the horseshoe river bend below the horizon and without any [26] indication as to authorship. Id. [28] 1 On April 8, 2021, Reiffer served the defendants with his original list of 2 interrogatories. (Doc. 31, p. 2) The defendants’ first response was served on May 7, 2021. 3 Id. Since then, the defendants have produced three supplemental responses as they have 4 uncovered additional documents. Reiffer argues in the pending motion that their responses 5 are still unsatisfactory. (Doc. 31) 6 At first, the defendants denied using the plaintiff’s Photo and argued that the cropped 7 image could not be positively identified as the plaintiff’s. (Doc. 31, p. 2, n. 1) The 8 defendants have since disclosed an “uncropped” version of the image that they used for their 9 advertising, which shows horseshoe bend, the horizon, and sky. The defendants concede this 10 is the plaintiff’s Photo. (Doc. 31-2, p. 2) The defendants state that they disclosed “ALL of 11 the photos saved in Defendants[’] computer system” in June of 2021. (Doc. 38, p. 5) 12 Shortly afterwards, in July of 2021, the defendants engaged a computer technician to 13 review the photos in their possession. (Doc. 38, p. 5) The technician discovered that the 14 defendants are in possession of a “filtered” image of horseshoe bend, and if the filter is 15 removed, the plaintiff’s name, Paul Reiffer, becomes visible. (Doc. 38, pp. 5, 7); (Doc. 3116 5, p. 2) The defendants suggest that someone on their staff, Christina Muckey, could have 17 downloaded a filtered image from Goggle Images without knowing what the unfiltered image 18 looked like. (Doc. 38, pp. 5, 7) The defendants did not disclose this unfiltered copy of the 19 photograph, because it was not “saved” by the technician. Id. 20 In the pending motion, Reiffer argues first that the defendants must disclose the 21 identity of their computer technician and his or her communications with the defendants. 22 “Ordinarily, a party may not, by interrogatories or deposition, discover facts known 23 or opinions held by an expert who has been retained or specially employed by another party 24 in anticipation of litigation or to prepare for trial and who is not expected to be called as a 25 witness at trial.” Fed. R. Civ. P. 26(b)(4)(D)(ii). “But a party may do so only . . . on 26 showing exceptional circumstances under which it is impracticable for the party to obtain 27 facts or opinions on the same subject by other means.” Id. “Several policy considerations 28 underlie the rule, including, (1) encouraging counsel to obtain necessary expert advice 1 without fear that the adversary may obtain such information; (2) preventing unfairness that 2 would result from allowing an opposing party to reap the benefits from another party’s 3 efforts and expense; (3) limiting any chilling effect on the use of experts as consultants if 4 their testimony could be compelled; and (4) avoiding prejudice to the retaining party if the 5 opposing party were allowed to call at trial an expert who provided an unfavorable opinion 6 to the party who first retained them.” In re Morning Song Bird Food Litig., 2015 WL 7 12791470, at *6 (S.D. Cal. 2015), order clarified, 2015 WL 12791473 (S.D. Cal. 2015). 8 The defendants assert that their computer technician was retained in order to comply 9 with their discovery obligations and imply1 that he or she is not expected to be called as a 10 witness at trial. (Doc. 38, p. 7) Accordingly, the identity of the technician and 11 communications between the technician and the defendants is not discoverable unless Reiffer 12 can show “exceptional circumstances.” Fed. R. Civ. P. 26(b)(4)(D)(ii). 13 Reiffer argues that the defendants have waived this privilege “by placing the requested 14 information and material ‘at issue.’” (Doc. 39, p. 4) The court does not agree. The 15 technician has discovered that the defendants possess a “filtered” version of the Photo which 16 does not display the plaintiff’s name. The technician also found that this filter can be 17 removed to reveal the “unfiltered” version. Also, the technician failed to find any evidence 18 that the filter was applied by the defendants and stated that he or she “was able to download 19 similarly filtered images from Google Images.” (Doc. 39, p. 4) It does not appear that the 20 defendants’ technician has discovered anything that Reiffer could not verify for himself now 21 that the defendants have disclosed a copy of the filtered Photo. Presumably Reiffer’s 22 technician, should he chose to employ one, can examine that the filtered Photo and see if it 23 provides clues as to when it was last edited. If the defendants had any such information, they 24 would be required to disclose it. They have not done so. Absent any affirmative evidence 25 of dishonesty, the court will presume that the defendants do not possess any such 26 information. [28] 1 Reiffer further argues that exceptional circumstances exist where “the object or 2 condition at issue is destroyed or has deteriorated after the non-testifying expert observes it 3 but before the moving party’s expert has an opportunity to observe it.” (Doc. 39, p. 5) They 4 assert that this very situation presents itself here because the defendants said that “they can’t 5 produce an ‘unfiltered’ version of Plaintiff’s photo because their IT person ‘did not save the 6 photo in the unfiltered format.’” The court does not agree. The technician’s failure to save 7 the unfiltered version of the Photo does not prevent another person from creating another 8 unfiltered version. See (Doc. 38, p. 7) Nothing has been destroyed. 9 Reiffer also argues that the defendants waived the privilege because they failed to 10 timely assert it. (Doc. 31, pp. 4-5) 11 The pertinent Rule states that “[t]he grounds for objecting to an interrogatory must be 12 stated with specificity.” Fed.R.Civ.P.33(b)(4). “Any ground not stated in a timely objection 13 is waived unless the court, for good cause, excuses the failure.” Id. Reiffer asserts that the 14 defendants failed to raise a timely objection to the disclosure of the computer technician, but 15 he does not explain how the term “timely” should be construed here. 16 “Federal Rule of Civil Procedure 33(b)(2) requires that, unless otherwise agreed or 17 ordered by the court, the responding party must serve its answers and any objections within 18 30 days after being served with the interrogatories.” Liguori v. Hansen, 2012 WL 760747 , 19 at *11 (D. Nev. 2012). In this case, the original interrogatory was served in April 8, 2021. 20 (Doc. 31, p. 2) The defendants’ first response was served on May 7, 2021, within the 30-day 21 deadline. Id. They did not “timely” assert the work-product privilege in their response, but 22 they could not have done so because the technician was not retained until two months later 23 in July of 2021. (Doc. 31-5, p. 2) The defendants first mentioned the technician in an email 24 on July 13, 2021. Id. Reiffer asked for his name in an email sent on July 15, 2021. (Doc. 25 31-3, p. 7) The defendants asserted that the technician’s identity and communications are 26 privileged in an email sent on July 23, 2021. (Doc. 31, pp. 4-5) 27 Reiffer argues that the defendants should have formally raised the issue of privilege 28 in their third and fourth amended responses produced on July 23, 2021. The court agrees 1 that this would be the best practice, but because the Rules do not give specific deadlines for 2 filing amended responses, it is difficult to conclude that the defendants have not made a 3 “timely objection.” The defendants did raise the privilege within ten days of revealing that 4 they had hired a computer technician and within eight days of Reiffer’s request for 5 disclosure, giving the plaintiff “timely” written notification of their position. That 6 notification was not given in a formal response to Reiffer’s interrogatory, true. But for the 7 court to find that the privilege has been waived by this oversight would exalt form over 8 substance in this particular instance. See Fed.R.Civ.P. 1. 9 Reiffer further moves that the defendants disclose “information related to the source 10 from which the photo was acquired, the date it was acquired, identification of all computers 11 and storage devices on which the photo was stored, the URL address for each page of any 12 website featuring the photo, the dates of use, the date the photo was deleted from 13 Defendants’ LinkedIn Page, and the current location of all copies of the photo.” (Doc. 31, 14 p. 5) He asserts that “all of this information almost certainly still resides on the Defendants’ 15 computer hard drives.” Id. 16 The court agrees that this information is discoverable, and the defendants do not argue 17 otherwise. The defendants do, however, explain that they do not have all of the information 18 that Reiffer expects them to have. Christina Muckey’s search history was apparently deleted 19 “well before the August 2020 letter from [the plaintiff’s] attorney McKinney.” (Doc. 38, p. 20 5) The defendants affirmatively state that they have tried to obtain information from 21 LinkedIn but their efforts have not been particularly fruitful. The court will order the 22 defendants to produce the requested information to the extent they have it in their possession, 23 custody, or control. The plaintiff further asserts that the LinkedIn file disclosed by the 24 defendants contains password-protected information. As the defendants have not offered any 25 objection, the court will order the defendants to produce this password. 26 Reiffer further argues that the defendants should provide all photos in their possession 27 including an unfiltered version of the Photo. The court agrees. The fact that their technician 28 did not save a copy of the unfiltered Photo at that time he or she uncovered it does not 1 absolve them of the duty to produce it. Rule 34 states that a party may serve a request to 2 produce “items in the responding party’s possession, custody, or control . . .[such as] 3 designated documents or electronically stored information . . . stored in any medium from 4 which information can be obtained either directly or, if necessary after translation by the 5 responding party into a reasonably usable form . . . .” Fed.R.Civ.P. (emphasis added). The 6 defendants have a copy of the Photo in a filtered state (without the plaintiff’s name) that, 7 after some electronic translation, can be, and has been, transformed into the Photo in an 8 unfiltered state (with the plaintiff’s name). The court finds that both versions of the Photo 9 are in the possession, custody, and control of the defendants and must be disclosed to the 10 plaintiff. The fact that the defendants do not have a copy of the unfiltered Photo readily 11 available is not dispositive. See also Bank of Mongolia v. M & P Glob. Fin. Servs., Inc., 258 12 F.R.D. 514, 519 (S.D. Fla. 2009) (“Deleted computer files, however, whether e-mails or 13 otherwise, are discoverable.”). 14 Reiffer also argues that the defendants have failed to verify their interrogatory 15 responses. The defendants assert that they did so on May 21, 2021. (Doc. 38) They state 16 that they will provide a verification of their third and fourth amended responses if requested. [17] Id. Apparently, Reiffer did make that request in an email on July 23, 2021. (Doc. 39, p. 7) 18 The defendants will be ordered to verify their amended answers. See Fed.R.Civ.P. 33(b)(3, 19 5). 20 Finally, Reiffer argues that this court should award fees pursuant to Fed.R.Civ.P. 21 37(a)(5)(A), which authorizes the court to award “reasonable expenses incurred in making 22 the motion, including attorney’s fees” if the motion is granted. In this case, however, the 23 motion will be granted in part and denied in part in which case, “the court may issue any 24 protective order authorized under Rule 26(c) and may, after giving an opportunity to be 25 heard, apportion the reasonable expenses for the motion.” Fed.R.Civ.P. 37(a)(5)(C). The 26 court exercises its discretion under the rule and declines to award expenses to either party. [28] 1 IT IS ORDERED that the plaintiff's motion to compel discovery filed on August 18, 2 || 2021 is granted in part and denied in part. (Doc. 31) The court will not compel the 3 || defendants to disclose the identity of the computer technician or the communications he or 4 || she had with the defendants. The defendants are ordered otherwise to provide discovery 5 || consistent with this order. The defendants shall provide this discovery within 15 days of the 6 || filing of this order. 7 DATED this 20" day of September, 2021. [9] 10 ( i. B Twntay Leslie A. Bowman United States Magistrate Judge 12 / [28] _7-