G & G Closed Circuit Events, LLC v. California Center for the Arts, Escondido, Foundation

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 G&G CLOSED CIRCUIT EVENTS, Case No.: 20cv2137-JLS (NLS) LLC, 12 ORDER ON MOTION FOR Plaintiff, DETERMINATION OF DISCOVERY 13 DISPUTE NO. 1 v. 14 CALIFORNIA CENTER FOR THE [ECF No. 16] 15 ARTS, ESCONDIDO, FOUNDATION, 16 dba California Center for the Arts, Escondido, 17 Defendants. 18 19 Before the Court is Defendant’s Motion for Determination of Discovery Dispute 20 No. 1, wherein Defendant seeks to compel Plaintiff to respond to certain interrogatories 21 served on March 30, 2021. ECF No. 16. After due consideration and for the reasons set 22 forth below, the Court GRANTS Defendant’s motion to compel further responses to the 23 interrogatories. 24 I. BACKGROUND 25 In the complaint, Plaintiff alleges that it has exclusive nationwide commercial 26 distribution rights to the Saul “Canelo” Alvarez v. Sergey Kovalev Championship Fight 27 Program (the “Program”), which was telecast nationwide on Saturday, November 2, 28 1 2019. ECF No. 1 at ¶ 16. Plaintiff alleges that, without its permission, Defendant and/or 2 employees of Defendant acting at its direction illegally intercepted, received, and 3 published the Program at California Center of the Arts, Escondido (“CCAE”), on 4 November 2, 2019. Id. at ¶¶ 10-12. 5 Defendant contends that neither it or its employees intercepted or published the 6 signal on that night. ECF No. 16 at 8. Rather, it maintains that on November 2, 2019, 7 there was a Dia De Los Muertos festival that was free and open to the public in the Grape 8 Day Park in Escondido, which is the park in which CCAE is located. Id. Defendant 9 contends that one of the vendors there, DJ SugabearSD, put on a lowrider exhibition in 10 the parking lot and aired the Program, using his own equipment. Id. Defendant argues 11 that DJ SugabearSD is not its employee, and it was DJ SugabearSD that advertised the 12 showing of its Program, not Defendant. Id. Plaintiff disputes the relationship between 13 Defendant and DJ SugabearSD, even if it were to believe Defendant’s version of events 14 on that evening. Id at 8-9. 15 At issue in this motion are ten interrogatories that Defendant served on Plaintiff on 16 March 30, 2021. ECF No. 16-1. Defendant seeks to compel Plaintiff to further respond 17 to the interrogatories in question. 18 II. DISCUSSION 19 The interrogatories that are at issue in this motion are recited below: 20 Request No. 1: Describe all efforts every CCAEF employee took to intercept and/or receive the signal for the PROGRAM as alleged in 21 paragraph 21 of the Complaint. 22 Request No. 2: Describe in detail how the CCAEF intercepted and/or 23 received the signal for the PROGRAM as alleged in paragraph 21 of the 24 Complaint. 25 Request No. 3: Describe in detail all the equipment that the CCAEF used to intercept and/or receive the signal for the PROGRAM as alleged in 26 paragraph 21 of the Complaint. 27 Request No. 4: Identify every CCAEF employee that participated in 28 intercepting and/or receiving the signal for the PROGRAM to be aired at the 1 CCAE. 2 Request No. 6: Identify every PERSON or PERSONS that published the 3 Program at the CCAE as alleged in paragraph 22 of the Complaint. 4 Request No. 7: Identify every PERSON or PERSONS that attended the publishing of the PROGRAM at the CCAE as alleged in paragraph 22 of the 5 Complaint. 6 Request No. 8: Identify every CCAEF employee that participated in 7 publishing the PROGRAM at the CCAE as alleged in paragraph 22 of the 8 Complaint. 9 Request No. 9: Identify all CCAEF employees that attended the publishing of the PROGRAM at the CCAE as alleged in paragraph 22 of the 10 Complaint. 11 Request No. 10: Describe in detail all the equipment that CCAEF 12 employees used to publish the PROGRAM at the CCAE as alleged in 13 paragraph 22 of the Complaint. 14 Request No. 11: Describe all efforts every CCAEF employee took to publish the PROGRAM at the CCAE as alleged in paragraph 22 of the 15 Complaint. 16 In response to each of these interrogatories, Plaintiff lodges objections that its 17 investigation is ongoing and discovery is not yet completed and that the information is 18 equally available to the propounding party (Defendant). Substantively, Plaintiff responds 19 by referring Defendant to an affidavit authored by an investigator that Plaintiff hired, 20 Rudy Gubach. ECF No. 16-4 at 13-16. Plaintiff also refers Defendant to the initial 21 disclosures in this action, which include an Instagram post by CCAE and article from 22 CCAE’s website regarding the Dia De Los Muertos festival, and two Instragram posts by 23 SugabearSD regarding the fight. ECF Nos. 16-6, 16-7, 16-8, and 16-9. 24 First, the parties dispute whether these interrogatories target relevant information. 25 ECF No. 16 at 6-10. Given the allegations in the complaint and Defendant’s theory of 26 the case, these interrogatories do target relevant information regarding the circumstances 27 surrounding the showing of the Program that evening. Defendant is entitled to ask 28 1 Plaintiff regarding its theory of the case. 2 Second, the parties dispute whether the interrogatories can be sufficiently answered 3 by reference to the investigator’s affidavit and initial disclosure documents. 4 Interrogatories must be answered “separately and fully in writing under oath.” Fed. R. 5 Civ. P. 33(b)(3). Rule 33(d) does provide an option to provide documents in lieu of 6 answering “[i]f the answer to an interrogatory may be determined by examining, auditing, 7 compiling, abstracting, or summarizing a party’s business records (including 8 electronically stored information), and if the burden of deriving or ascertaining the 9 answer will be substantially the same for either party.” Neither party relies on this 10 section to justify reference to the documents and the reference here does not appear to fit 11 in this section, which refers to voluminous business records and the like. 12 Defendant argues that Plaintiff cannot simply direct it to glean information from 13 the investigator’s report and initial disclosures. The Court agrees. Defendant is entitled 14 to hear Plaintiff’s theory of its case through interrogatory responses. Answers to 15 interrogatories must be fully in writing under oath and must be signed by the party 16 responding. Fed. R. Civ. P. 33(b)(3), (5). Reference to documents containing some 17 potentially responsive information is not a sufficient substitute in this situation. 18 Another one of Plaintiff’s contentions appears to be that the interrogatories seek 19 information that is within CCAE’s exclusive control because they seek information about 20 CCAE’s employees and acts. Under Federal Rule of Civil Procedure 33, a party 21 answering interrogatories must furnish all information “available to th[at] party.” Fed. R. 22 Civ. P. 33(b)(1)(B); Bryant v. Armstrong, 285 F.R.D. 596, 612 (S.D. Cal. 2012). “If a 23 responding party is unable to provide the requested information, he may not simply 24 refuse to answer.” Id. However, the party may “state under oath that he is unable to 25 provide the information and must describe the efforts he used to obtain the information.” 26 Id. Thus, Plaintiff cannot use this objection to avoid answering the interrogatories but 27 must answer in accordance with the Rules. 28 Finally, Plaintiff objects that it should not have to answer these interrogatories 1 || because its investigation and discovery are ongoing. This position has some merit since 2 many of the interrogatories may qualify as contention interrogatories, which “ask the 3 || receiving party to state the factual bases for its allegations.” Folz v. Union Pac. R.R. Co., 4 || No. 13-CV-00579-GPC-PCL, 2014 WL 357929, at *1 (S.D. Cal. Jan. 31, 2014). For 5 || these types of interrogatories, the Federal Rules and some courts may delay ordering 6 || responses until substantial completion of fact discovery. Id.; Fed. R. Civ. P. 33(a)(2). In 7 || this situation, however, Plaintiff also already conducted its initial investigation by hiring 8 || an investigator on the day of the event and collecting other evidence. Even though 9 || discovery remains open for two more months, Plaintiff has developed some theory for its 10 || case and Defendant is entitled to request that information. Thus, in this circumstance, the 11 Court finds it appropriate for Defendant to answer the interrogatories to the best of its 12 || ability and to provide another supplemental answer to the interrogatories as needed once 13 || discovery is substantially complete. See Core Optical Techs. v. Infinera Corp., No. 14 ||SACV170548AGJPRX, 2018 WL 2684693, at *2 (C.D. Cal. Mar. 7, 2018). 15 Accordingly, Plaintiff's objections to the above interrogatories are overruled and 16 motion to compel is GRANTED. 17 Ht. CONCLUSION 18 After due consideration and for the reasons stated above, Defendant’s motion to 19 || compel responses to the interrogatories discussed above is GRANTED. Plaintiff must 20 || provide responses in accordance with the Federal Rules and the above discussion within 21 days of this order. 22 IT IS SO ORDERED. 23 ||Dated: June 10, 2021 24 Mite. Z Lome 25 Hon. Nita L. Stormes United States Magistrate Judge 27 28