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Ariel Fleurimond v. New York University

July 29, 2011


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:


Plaintiff's counsel moves to compel Defendants to produce documents and for sanctions against Defendants pursuant to Rule 37. See DE 54. Defendants filed opposition to the motion. See DE 57.*fn1 Having reviewed the parties submissions including attached exhibits, and having considered the applicable case law, I am GRANTING Plaintiff's motion in part and DENYING it in part.


Plaintiff Ariel Fleurimond ("Plaintiff" or "Fleurimond") brought this action against New York University ("Defendant" or "NYU") alleging copyright infringement. Plaintiff alleges that she is the sole creator and copyright owner of "Orion," a drawing of a cougar that the NYU Athletic Department has used on various items, including clothing and memorabilia, allegedly without Fleurimond's consent. NYU has argued that Plaintiff created the drawing as an employee of the Athletic Department and as such the cougar is a "work-for-hire."

The initial deadline for completion of fact discovery in this case was set for September 17, 2010. See DE 24. Counsel for both parties appeared before me on January 18, 2011 for a status conference at which they raised outstanding discovery disputes. See DE 35. Despite the fact that those disputes were not raised with the Court in a timely manner, I extended the deadline for completion of fact discovery to February 11, 2011. See DE 36. On February 2, 2011, Plaintiff's counsel filed a motion seeking, inter alia, to compel production of documents from Defendant. See DE 38. I denied that motion, without prejudice, for failure to comply with Local Civil Rule 37.1. See DE 42. On February 28, 2011, Plaintiff filed the instant motion to compel and for sanctions.


Federal Rule of Civil Procedure 26(b)(1) defines the appropriate scope of discovery as "any non-privileged matter that is relevant to any party's claim or defense . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action . . . All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)." "Relevance" under Rule 26 "has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F.2d 682, 687 (2d Cir. 1989) (holding that "the broad scope of discovery delimited by the Federal Rules of Civil Procedure is designed to achieve disclosure of all the evidence relevant to the merits of a controversy"); see also Barrett v. City of New York, 237 F.R.D. 39, 40 (E.D.N.Y. 2006) (noting that the information sought "need not be admissible at trial to be discoverable"). This Court has held that the "right of litigants to discover and present relevant evidence in civil litigations is given great weight in federal courts." Apicella v. McNeil Labs., 66 F.R.D. 78, 82 (E.D.N.Y. 1975).

"The party seeking the discovery must make a prima facie showing, that the discovery sought is more than merely a fishing expedition." Evans v. Calise, No. 92-cv-8430, 1994 WL 185696 at *1 (S.D.N.Y. May 12, 1994); United States v. International Bus. Mach. Corp., 66 F.R.D. 215, 218 (S.D.N.Y. 1974) (burden is on moving party to establish relevance). "Disclosure should not be directed simply to permit a fishing expedition." United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). It is incumbent upon Plaintiff here to provide the necessary linkage between the discovery sought and the claims brought and/or defenses asserted in the case.

Further, a federal district court may impose sanctions under Fed. R. Civ. P. 37(b) when a party fails to obey an order to provide discovery. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). "Even in the absence of a discovery order, a court may impose sanctions on a party for misconduct in discovery under its inherent power to manage its own affairs." Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002). Where the alleged misconduct is the non-production of relevant documents, district courts have broad discretion in fashioning an appropriate sanction. See Creative Resources Group of New Jersey v. Creative Resources Group, Inc., 212 F.R.D. 94, 102 (E.D.N.Y. 2002). The Court has broad discretion in fashioning a sanction under Rule 37(b). See Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Wells Fargo Bank, N.A. v. Nat'l Gasoline, Inc., No. 10-cv-1762, 2011 WL 2490808, at *2 (E.D.N.Y. June 22, 2011).


Plaintiff argues that Defendant: (i) failed to produce an appropriate 30(b)(6) witness; (ii) failed to produce all of Plaintiff's employment records; and (iii) failed to produce all responsive documents related to the NYU Athletic Department's revenues. Plaintiff further moves for an award of its attorney's fees and costs pursuant to Rule 37.

A. Defendant's 30(b)(6) Witness

On January 24, 2011, Plaintiff served a notice of deposition pursuant to Federal Rule 30(b)(6) upon Defendant. See DE 55-2. The notice listed three general subjects on which the witness should be prepared to testify: "the creation of the subject Work that is the basis of the lawsuit, the Defendant's use of the subject Work, and the Defendant's defenses in this matter." Id. The 30(b)(6) deposition was held on February 10, 2011. Plaintiff alleges that the witness produced by Defendant was not able to testify as to the three noticed subjects, which Plaintiff alleges should be construed as a constructive non-appearance by Defendant.*fn2 DE 54 at 2. Plaintiff has not cited any case law supporting her proposition that the 30(b)(6) witness produced was inadequate or that the production of that witness should be construed as a non-appearance. Defendant argues that the witness produced had adequate knowledge about the noticed subjects. Defendant further argues that Plaintiff was notified in advance that the 30(b)(6) witness would have limited information on certain subjects, but that Defendant gave Plaintiff the names of other witnesses who would have knowledge, two of whom were deposed by Plaintiff. DE 57.

Under Rule 30(b)(6), when a party seeking to depose a corporation announces the subject matter of the proposed deposition, the corporation must produce someone familiar with that subject. See Fed.R.Civ.P. 30(b)(6); Reilly v. Natwest Markets Group Inc., 181 F.3d 253, 268 (2d Cir. 1999). To satisfy Rule 30(b)(6), the corporate deponent has an affirmative duty to make available "such number of persons as will" be able "to give complete, knowledgeable and binding answers" on its behalf. Securities & Exchange Comm'n v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y.1992) (internal quotations omitted). When a party fails to comply with Rule 30(b)(6), Rule 37 allows courts to impose various sanctions, including the preclusion of evidence. See Fed.R.Civ.P. 37(d). However, "for the court to impose sanctions, the inadequacies in a ...

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