Art Akiane LLC. v. Art & Soulworks LLC
| Decision Date | 18 September 2020 |
| Docket Number | No. 19 C 2952,19 C 2952 |
| Parties | ART AKIANE LLC., Plaintiff, v. ART & SOULWORKS LLC and CAROL CORNELIUSON, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Art Akiane is named after Akiane Kramarik, who painted the originals of the artworks involved in this case, and owns the copyright to the dozen or so paintings at issue. There are numerous websites discussing Akiane Kramarik's undisputed, artistic, prodigal talents. Many of her paintings depict the likeness of Jesus, [Dkt. #97, ¶ 31], and many, if not most, have a spiritual theme. Art Akiane licensed commercial usage and development of those works to Art & SoulWorks, and the dispute is, essentially, over whether Art & SoulWorks went beyond the bounds of the parties' agreement. In its simplest form, this is a suit involving, at least formally, entitlement to marketing rights. [See Dkt. # 165, at 2-3].1
Discovery began in November 2019. But by March 2020, things had reached an unfortunate impasse. Local Rule 37.2 recognizes that disputes in discovery are inevitable and provides a mechanism to deal with impasses, like those which occurred in this case. The Rule requires parties to negotiate in good faith should they find themselves involved in discovery disputes that initially, at least, seem unresolvable. Like the concept of proportionality in Rule 26, "good faith," as used in Rule 37.2, has real significance. An ultimatum on one side, met with steadfast defiance on the other, will seldom constitute the good faith required by Local Rule 37.2.2
Art Akiane tells us that its counsel and attorneys from Art & SoulWorks had a conference on March 20, 2020. [Dkt. ## 120, at 2; 124, at 2; 126, at 2]. It did not resolve the dispute. The parties' counsel lay the blame for deficiencies at the feet of their opponents. It is not going out on a limb to suspect that a single meeting that engenders four motions to compel and hundreds of pages of filings suggests a certain degree of obduracy in discovery by both sides. Cf. Infowhyse GmbH v. Fleetwood Grp., 2016 WL 4063168, at *1 (N.D. Ill. 2016). And we know from the letter plaintiff's counsel wrote to defendants' counsel on March 5, 2020 that plaintiff never altered its original position. [Dkt. #120-1].
This is not to conclude that a party must yield and give in to the other side's demands, even where that party is convinced of the rightness (and the importance) of the position it is espousing. It is, however, to suggest that all counsel ought to be reasonably flexible in resolving discovery disagreements. Or, as Judge Shadur was fond of saying, lawyers on both sides should have an instinct for the jugular not the capillary. HyperQuest, Inc. v. N'Site Solutions, Inc., 2008 WL 3978310, 2(N.D.Ill. 2008).
While it is plaintiff's argument throughout its motions that its requests are "relevant" to its copyright claims, that position is open to question given the open-ended scope of plaintiff's discovery requests. But beyond an open-ended claim of relevance, no explanation is given as to why incidents occurring outside the limitations period, 17 U.S.C. §507(b), Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 677 (2014), would be "relevant" in this case. Perhaps there is an argument to be made. But it has not been offered, at least so far as we have been able to ascertain. One possible course would be to order the parties to have another hopefully more meaningful conference pursuant to Local Rul 37.2. But, a briefing schedule has been set, and it will be honored. However, future discovery motions must include a separate joint statement of the parties' efforts and time spent to resolve their disputes over each of the document requests at issue, along with a statement of the parties' final positions taken during negotiations, supported by the pertinent authority they relied upon during negotiations, on each request that remains in dispute. See Infowhyse GmbH v. Fleetwood Grp., 2016 WL 4063168, at *2 (N.D. Ill. 2016); Autotech Techs. Ltd. P'ship v. Automationdirect.Com, Inc., 2007 WL 2713352 (N.D. Ill. 2007); O'Toole v. Sears, Roebuck & Co., 302 F.R.D. 490, 491 (N.D. Ill. 2014). The purpose is not to make it difficult for counsel or to needlessly dilate things. But experience has shown that the procedure is helpful to counsel in resolving issues that at first blush may appear intractable.
The plaintiff has filed four motions to compel responses to interrogatories and production of documents - three of which are against defendant, Art & Soulworks. [Dkt. ##120, 124, 126]. The motions against Art & Soulworks, are granted in part and denied in part.
The resolution of discovery disputes is committed to the court's extremely broad discretion. Crawford-El v. Britton, 523 U.S. 574, 598 (1998); Cobian v. McLaughlin, 804 F. App'x 398, 400 (7th Cir. 2020). At the same time, discovery, like all matters of procedure, has ultimate and necessary boundaries. Or as Judge Moran succinctly put it, Vakharia v. Swedish Covenant Hosp., 1994 WL 75055, at *2 (N.D. Ill. 1994). Discovery of material not reasonably calculated to lead to the discovery of admissible evidence is not within the scope of Rule 26. Thus, it is proper to deny discovery of material that is relevant only to claims or defenses that have been stricken, or to events that occurred before an applicable limitations period, unless the information sought is otherwise relevant to issues in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351-352 (1978).
An abuse of discretion occurs when no reasonable person could take the view of the district court. Pittman by & through Hamilton v. Cty. of Madison, Illinois, 2020 WL 4727347, at *4 (7th Cir. 2020). That means that where discretion is involved there are no hard and fast rules. Cowen v. Bank United of Texas, FSB, 70 F.3d 937 (7th Cir. 1995). Indeed, two decision-makers—on virtually identical facts—can arrive at opposite conclusions, both of which constitute appropriate exercises of discretion. See McCleskey v. Kemp, 753 F.2d 877, 891 (11th Cir. 1985), aff'd, McCleskey v. Kemp, 481 U.S. 279, 289-290 (1987). Accord Mejia v. Cook County, Ill., 650 F.3d 631, 635 (7th Cir. 2011). Cf. United States v. Bullion, 466 F.3d 574, 577 (7th Cir. 2006)(Posner, J.) (); Elliot v. Mission Trust Services,LLC, 2015 WL 1567901, 4 (N.D. Ill. 2015). As a result, a party that obdurately maintains its position without budging could insist that it was "right," but find itself on the losing side when the matter comes before the court, and the court's vast discretion in overseeing discovery leads it to accept the other side's "right" position.
To overturn a ruling on a discovery motion requires a showing that the ruling was "clearly erroneous" or contrary to law. Hassebrock v. Bernhoft, 815 F.3d 334, 340 (7th Cir. 2016). That is an exceedingly difficult standard to meet. See Industries, Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir.2001). As the Seventh Circuit famously quipped, a decision is clearly erroneous if "it strikes us as wrong with the force of a 5 week old, unrefrigerated, dead fish." Id. In more prosaic terms, the clear error standard means that the district court can overturn the magistrate judge's ruling only if it is left with "the definite and firm conviction that a mistake has been committed." United States v. Friedman, 2020 WL 4913648, at *10 (7th Cir. 2020).
Thus, a negotiated outcome is more likely to give both sides a mutually satisfactory - although not a "perfect" - resolution, even where each side gets something short of the 100% it was demanding through a motion. And, a willingness to be conciliatory is often more a sign of strength and effectiveness than the opposite. But, motions have been made by both sides, and so we turn to them.
The 2015 Amendment to Rule 26(b) governs the scope of discovery in federal litigation and permits only "proportional" discovery that is relevant to the claims or defenses. See also Kaye v. New York City Health & Hosps. Corp., 2020 WL 283702, at *2 (S.D.N.Y. 2020)("Moreover, such an inquiry must be proportional to the facts and circumstances of the case."); Gross v. Chapman, 2020WL 4336062, at *3 (N.D. Ill. 2020). Proportionality, like other concepts, requires a common sense and experiential assessment. See, e.g., BankDirect Capital Fin., LLC v. Capital Premium Fin., Inc., 326 F.R.D. 171, 175 (N.D. Ill. 2018) ().
The concept of proportionality did not, however, make its first appearance in the Federal Rules of Civil Procedure with the 2015 Amendments. It had appeared as part of Rule 26(b)(2)(C)(iii). Henry v. Morgan's Hotel Grp., Inc., 2016 WL 303114 (S.D.N.Y. 2016); Certain Underwriters at Lloyds v. Nat'l RR Passenger Corp., 318 F.R.D. 9, 14 (E.D.N.Y. 2016). And before that, the concept appeared in Rule 26(b)(C)(iii). Renumbering the proportionality requirement, giving it a specific name, and placing it in Rule 26(b)(1) was designed to put a greater emphasis on the need to achieve proportionality than was thought to previously have existed given its placement in the structure of Rule 26. Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016); Boehringer Ingelheim Pharma GMBH & Co. KG v. Teva Pharm. USA, Inc., 2016 WL 11220848, at *3 (D.N.J. 2016). See Linda Simard, Seeking Proportional...
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