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  UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA 

 WESTERN DIVISION

CIVIL MINUTES--GENERAL

Case No. CV 07-6835 AHM (AJWx) Date: August 6, 2009

Title: UMG RECORDINGS, INC., et al. v. DIVX, INC.

===================================================================PRESENT: HON. ANDREW J. WISTRICH, MAGISTRATE JUDGE

 

Ysela Benavides

Deputy Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

None Present None Present

ORDER REGARDING DIVX’S MOTION TO COMPEL FURTHER RESPONSES TOINTERROGATORIES 10, 11, AND 13  AND REQUEST FOR PRODUCTION 11 AND 96

As to interrogatories 10, 11 and 13, the motion is denied. In the

court’s view, these interrogatories should be treated as one

separately countable interrogatory for each of the approximately

2600 allegedly infringed works, each possessing three non-

separately countable subparts. This obviously exceeds the numerical

limit on the number of interrogatories that may be served. See

Fed. R. Civ. P. 33(a). To instead treat these as three separately

countable interrogatories, each possessing approximately 2600 non-

separately countable subparts would defeat the purposes of the

numerical limit in the particular circumstances presented here.

See generally Advisory Committee Note to 1993 Amendment to Fed. R.

Civ. P. 33. In addition to violating the numerical limit, each of

these interrogatories runs afoul of the principles contained in

Fed. R. Civ. P. 26(b)(2)(C). Insofar as interrogatory 10 is

concerned, Divx has not identified a single example of an allegedly

infringed work that was distributed in appreciable quantities

without notice prior to March 1, 1989, or an allegedly infringed

work that was distributed after March 1, 1989 in a manner that

deprived Divx of access to the knowledge that the work was subject

to copyright. Therefore, collecting the information sought by

interrogatory 10 does not appear to be a sufficiently productive

enterprise that the court would be warranted in imposing the

substantial burden of doing so on UMG. As to interrogatories 11

and 13, UMG already has produced its licenses, and it confirmed

during the hearing that its production is complete. Therefore,

insofar as entities other than UMG are concerned, Divx either has

much of the relevant information or can obtain it for itself about

as readily as can UMG. Insofar as UMG’s own policies and practices

are concerned, the documents UMG already has produced, augmented by

those it is required by this order to produce in response to

request for production 96, should provide Divx with much of the

information it needs.

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As to request for production 11, the motion is granted.

As to request for production 96, the motion is granted, but the

request is narrowed to documents summarizing, describing, or

commenting upon UMG’s actual or prospective policies or practices

from January 1, 2000 to the present.

As to Divx’s contention that UMG has failed to perform a diligent

search for documents responsive to Divx’s request, the motion is

granted as to Kinzler, denied as moot as to Morris in light of

UMG’s representation that Morris’s files already have been searched

and all responsive emails produced [see Joint Stipulation at 33],

and denied as untimely and probably unnecessary as to record label

personnel. Requiring UMG to greatly expand its search at this stage

of the case is not warranted in light of the fact that its

production in response to request for production 96, otherdocuments previously produced by UMG, and the upcoming depositions

likely will provide Divx with most of the information it is

seeking, particularly during the period that seems most relevant,

that is, January 1, 2005 to the present.

Compliance within 21 days is required.

IT IS SO ORDERED.

cc: Parties

MINUTES FORM 11 Initials of Deputy Clerk________

CIVIL-GEN

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