Slate v. American Broad. Cos.

• Decision Date: 09 August 2011
• Docket Number: Civil Action No. 09–01761 (BAH).
• Citation: 802 F.Supp.2d 22
• Court: U.S. District Court — District of Columbia
• Parties: Gregory SLATE, Plaintiff, v. AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants.

802 F.Supp.2d 22

Gregory SLATE, Plaintiff,

v.AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants.

Civil Action No. 09–01761 (BAH).

United States District Court, District of Columbia.

Aug. 9, 2011.

Gregory Slate, Washington, DC, pro se.

Chad R. Bowman, Nathan E. Siegel, Levine Sullivan Koch & Schulz, LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

Plaintiff Gregory Slate appeals from a June 24, 2011 Order by the Magistrate Judge partially denying his Motion to Compel Discovery, ECF No. 77, from defendants American Broadcast Companies, Inc. (hereinafter “ABC”), ABC News Interactive (hereinafter “ANI”),¹ and Disney/ABC International Television, Inc. In this case, the plaintiff alleges that the defendants are liable for copyright infringement and contributory copyright infringement for airing no more than 45 seconds of video footage filmed by the plaintiff on the defendants' news show 20/20. By Minute Order on June 24, 2011, the Magistrate Judge to whom this case was referred for all discovery-related matters, see Minute Order dated Feb. 25, 2011 (Howell, J.), denied plaintiff's request to compel production of a laptop and an external computer hard drive (hereinafter “hard drives”) that third-parties Diop Kamau and the Police Complaint Center provided to the defendants in response to document subpoenas.² Concluding that the hard drives were an overproduction and inadvertently contained a large number of private, confidential files of third parties, which are not relevant to this case, the Magistrate Judge ordered that they be sequestered and that the defendants use no information from them. Having reviewed the plaintiff's motion to compel and the briefs submitted in support and in opposition to the plaintiff's appeal of the Magistrate Judge's Order, the Court concludes that the Magistrate Judge's decision to sequester the hard drives and to deny the plaintiff's motion to compel production of those materials is not clearly erroneous or contrary to law. Accordingly, the Magistrate Judge's June 24, 2011 Minute Order is affirmed.

I. BACKGROUND

On June 16, 2011, the plaintiff filed a Motion to Compel in which he sought, inter alia, the defendants' production of a laptop ³ and an external hard drive ⁴ obtained from defendants' subpoenas to third-parties Diop Kamau and Mr. Kamau's organization, the Police Complaint Center (hereinafter “PCC”). ECF No. 77. Despite initially telling the plaintiff that they would supply him with copies of the files on the hard drives, the plaintiff alleges that “presumably after studying the contents of the hard drive, Defendants retracted their offer to produce to Plaintiff these highly relevant and probative materials which remain in their possession.” Pl.'s Appeal of M.J. June 24, 2011 Order, ECF No. 84, at 3.

Defendants state that the hard drives provided by Mr. Kamau and the PCC in response to their subpoenas contained over 100,000 files. Defs.' Opp'n Pl.'s Appeal, ECF No. 87, at 3. The defendants reviewed “only a tiny fraction” of these files before realizing that Kamau overproduced documents, and included “documents [between Mr. Kamau and his attorney] that were obviously attorney-client privileged as well as communications with, by and concerning numerous non-parties to this case, including financial and other information that was likely confidential.” Id. at 2 (“... it became clear that those files appeared to simply be all e-mails stored in certain compressed files going back many years, rather than information specifically tailored to be responsive to the subpoena.”). The “vast majority” of these files, according to the defendants, “likely had nothing to do with this case.” Id. at 3. Believing that Mr. Kamau had not intended to supply such files, the defendants ceased reviewing the material. Id. at 2–3.

When the defendants contacted Mr. Kamau regarding the production, he stated that he did not intend to provide the confidential and privileged information and asked for it to be returned. Id. The defendants returned one or both of the hard drives ⁵ and then “sequestered everything that had been downloaded from them so that those files can no longer be reviewed by counsel.” ⁶ Id. Defendants declare that “to this date, the vast majority of those files have never been reviewed by Defendants.” Id. at 3.

On June 7, 2011, the parties addressed the issue of Mr. Kamau's overproduction before Magistrate Judge Robinson. She ordered the defendants to “produce to Plaintiff all documents provided by the witness now in Defendants' possession which Defendants intend to use at [Mr. Kamau's] deposition” and ordered the defendants to “retain all documents produced by the witness until further order of the court.” Minute Order dated June 8, 2011 (Robinson, M.J.). The defendants complied with this order.

On June 8, 2011, the day before Mr. Kamau's deposition, Mr. Kamau provided the defendants with a CD representing a narrower production responsive to the subpoenas. The CD contained a .pst file with an unspecified number of emails, amounting to “500 pages of documents,” which the defendants used at Mr. Kamau's deposition and provided to the plaintiff. Defs.' Opp'n Pl.'s Appeal, ECF No. 87, at 4.

On June 16, 2011, the plaintiff filed a motion to compel production of the sequestered data from the hard drives. ECF No. 77. The following week, on June 24, 2011, the parties appeared for a hearing before Magistrate Judge Robinson concerning a number of issues, including the plaintiff's motion to compel. During this hearing, the defendants represented that they would not use any of the files from the hard drives to support a motion for summary judgment and that they would “produce audio-visual files contained on the external hard drive that had been received from Mr. Kamau, except for the .pst files, as well as all of the loose discs he had shipped containing audio-visual materials.” Defs.' Opp'n Pl.'s Appeal, ECF No. 87, at 5. The Magistrate Judge then granted in part and denied in part plaintiff's motion to compel, ordering the defendants to produce the audio-visual material, but denying plaintiff's request to compel production of the sequestered hard drives. Minute Order dated June 24, 2011 (Robinson, M.J.).⁷

Plaintiff now appeals the “portions of the Magistrate's Order denying Plaintiff's Motion to Compel documents produced to Defendants in response to their subpoena to Diop Kamau.” Pl.'s Appeal of M.J. June 24, 2011 Order, ECF No. 84, at 1.

II. LEGAL STANDARD

“A magistrate judge's decision is entitled to great deference unless it is clearly erroneous or contrary to law, ‘that is, if on the entire evidence the court is left with the definite and firm conviction that a mistake has been committed.’ ” Graham v. Mukasey, 608 F.Supp.2d 50, 52 (D.D.C.2009) (quoting Donohoe v. Bonneville Int'l Corp., 602 F.Supp.2d 1, 2 (D.D.C.2009)); see also LCvR 72.2(c) (“[A] district judge may modify or set aside any portion of a magistrate judge's order under this Rule found to be clearly erroneous or contrary to law.”).

III. DISCUSSION

The plaintiff objects to the Magistrate Judge's order denying his motion to compel production of the hard drives because he contends that (1) the defendants “have no standing to assert attorney-client privilege on behalf of third-parties and may not withhold information that they have received in response to their subpoenas for relevant documents,” and (2) the order denies the plaintiff “equal access to discovery materials.” Pl.'s Appeal of M.J. June 24, 2011 Order, ECF No. 84, at 1–2. The Court, however, disagrees. The Magistrate Judge sequestered the hard drives not because the defendants “asserted privilege” over the information, but because the Magistrate Judge believed that the burden, expense, and nature of the proposed discovery outweighed its likely benefit. See Fed.R.Civ.P. 26(b)(2)(C). Moreover, the Magistrate Judge's order did not deny the plaintiff access to relevant material.

A. The Court Properly Limited Discovery

The plaintiff argues that the “Defendants have no standing to assert privilege and confidentiality on behalf of third parties” and cites Washington v. Thurgood Marshall Academy, 230 F.R.D. 18, 21 (D.D.C.2005) for this proposition. Pl.'s Appeal of M.J. June 24, 2011 Order, ECF No. 84, at 5. That case, however, dealt with a party's motion to quash a subpoena, and, as defendants state, stands for the proposition that “absent some interest of its own that is implicated, one party may not seek to quash or limit a non-party subpoena issued by the other party since the non-party can themselves seek relief.” Defs.' Opp'n Pl.'s Appeal, ECF No. 87, at 9. The present situation is quite different from Washington.

First, the defendants are not attempting to quash a subpoena, but are rather attempting to rectify an error committed by a non-party that resulted in the production of private and confidential information of other non-parties. While Mr. Kamau has not sought to quash the subpoena, he has stated that he mistakenly overproduced information, and has submitted a narrower, more responsive production to the defendants. These documents were shared with the plaintiff.

Second, the plaintiff correctly states that the “[d]efendants are clearly in no position to determine which documents within Mr. Kamau's production should be considered privileged.” Pl.'s Appeal of M.J. June 24, 2011 Order, ECF No. 84, at 6. This is precisely why, pursuant to the Magistrate Judge's order, the defendants have sequestered all of the information contained on the hard drives, which, as the plaintiff himself admits, the defendants did “not fully review[ ].” Id.

Finally, the Magistrate Judge's decision to sequester the hard drives was not made because the defendants “asserted privilege” over the material. Rather, pursuant to Federal Rule of Civil Procedure 26(b)(2)(C),⁸ the Magistrate Judge limited the scope of discovery after balancing a...