Laatz v. Zazzle, Inc.

Background

Nicky Laatz and Zazzle, Inc. submitted six discovery-dispute letters concerning numerous disagreements. The court decided the disputes without oral argument, except that it required additional submissions before resolving the dispute in Dkt. No. 262. The court noted that the parties waited until the end of fact discovery to present many of the disputes.

Zazzle’s discovery requests

For Interrogatory No. 20, the court allowed Laatz to rely on identified business records under Federal Rule of Civil Procedure 33(d), but required her answer to identify where in each record the responsive information appears when the records contain information about other fonts or other subjects.

The court found that Interrogatories Nos. 21 and 22, seeking email addresses and social-media accounts used since 2017 by Laatz, John Laatz, and any “Laatz Entity,” sought information relevant to Zazzle’s statute-of-limitations defense. Laatz must provide complete narrative answers to those interrogatories. She must also provide a complete answer to Interrogatory No. 24 concerning social-media content related to Zazzle or the Blooming Elegant font, although she may use Rule 33(d) for content actually described or shown in identified business records.

The court found Request for Production No. 97 unreasonably broad and not proportional to the needs of the case. Laatz did not have to produce all posts and communications with font-related websites, but she had to produce communications with or on those sites concerning the Blooming Elegant font or Zazzle, to the extent she had not already done so.

Zazzle had subpoenaed communications from Creative Market, Fontspring, and MyFonts. Laatz asserted that some post-complaint communications involving counsel were protected, including under the common-interest doctrine. The court explained that the common-interest doctrine can preserve an existing privilege or protection when separately represented parties communicate confidentially about a shared legal interest, but it does not create a privilege by itself. Because Laatz had not identified the withheld documents in a privilege log as required by Rule 26(b)(5)(A), the court concluded that she had not properly established an underlying privilege or protection. The court overruled her objections to withholding or preventing production of responsive communications based on the common-interest doctrine.

Laatz’s discovery requests

For the disputed topics in Laatz’s Rule 30(b)(6) deposition notice, the court concluded that if Zazzle had already identified the number of users who accessed the design tool while the font was available, Zazzle did not have to provide the total number of account holders. If it had not identified the number of design-tool users, it had to provide that information under oath. The court declined to require deposition testimony on the disputed portions of Topics 11 and 18 because Laatz had not provided a reasonable justification or shown that the testimony was proportional. Those topics concerned Zazzle’s documentation and its search for responsive electronically stored information.

The court also declined to require Zazzle to produce documents responsive to ten document requests included with the deposition notice. It found that Laatz had not shown she was entitled to documents that duplicated earlier written discovery.

The court could not resolve Dkt. No. 262, concerning whether Zazzle’s corporate representatives were adequately prepared to testify about specified deposition topics, because the parties had not supplied the relevant transcript excerpts. The court ordered Laatz to submit unhighlighted and unannotated electronic copies of the corporate testimony of Catherine Sheu, Jason Li, Jason Kang, and Mr. Alkhatib. It stated that it would issue another order after reviewing those transcripts.

Font-use and access information

For Interrogatories Nos. 16 and 17, the court accepted Zazzle’s undisputed representation that it did not use “SVG,” or scalable vector graphic, files. However, it ordered Zazzle to answer the interrogatories concerning the means by which it transmits designs containing text.

The court declined to require additional information in response to Interrogatory No. 18 about unique internet-protocol addresses associated with “pending” designs. It found that the information was not proportional to the needs of the case, considering its marginal relevance and Zazzle’s explanation that the information was not available or readily accessible without undue burden or expense.

For Interrogatory No. 25, the court declined to require Zazzle to count users who created unsaved or abandoned drafts, or to provide information for an earlier period that Zazzle said was unavailable. The court did order Zazzle to supplement its response with the available information for April 1, 2020, through March 1, 2023, reported by quarter or month.

The court declined to require production of extensive session data, server logs, and related documentation in response to Requests for Production Nos. 80 through 84. It found that the record about the availability and usefulness of the data was not well developed and that Zazzle appeared to have complied with prior orders requiring it to provide the number of users and designs. The court also found Request for Production No. 85, seeking all webpages for products incorporating the font, unreasonable and disproportionate because it would require Zazzle to recreate more than a million webpages.

Compliance with prior orders and database inspection

The court rejected Laatz’s contention that Zazzle violated prior discovery orders by failing to produce its raw data or databases. Those orders required Zazzle to determine whether its data could be queried and, if responsive information could be obtained without undue burden, to produce that information in a report, spreadsheet, or other document. They did not require Zazzle to produce the databases themselves.

If Zazzle had not already disclosed the number of redacted items corresponding to designs that used the font from a list or index created in August 2022, the court ordered it to do so immediately. The court also ordered Zazzle, if it had not already done so, to query its records and provide information about the number of users or account holders who accessed its design tools while the font was available.

The court found no readily accessible and accurate way to determine the number of unique Zazzle member logins for a period and noted that Laatz had not explained why that information was relevant. It also declined to require inspection or copying of Zazzle’s backup database because Laatz had not shown that the information Zazzle provided was incomplete or incorrect, apart from the issue of pending designs, or otherwise justified duplicative inspection.

Orders and disposition

The court ordered Laatz to supplement her responses to Interrogatories Nos. 20, 21, 22, and 24 and her production responsive to Request for Production No. 97 by September 20, 2024. Laatz could not withhold or cause non-parties to withhold otherwise responsive communications based on the common-interest doctrine.

By September 20, 2024, Zazzle had to provide the specified user-access information, supplement its responses to Interrogatories Nos. 16 and 17, and provide quarterly or monthly information responsive to Interrogatory No. 25. Zazzle also had to disclose the specified count from its August 2022 list or index if it had not already done so. Laatz had to submit the four deposition transcripts by September 13, 2024. The order resolved the disputes in Dkt. Nos. 258, 259, 261, 263, and 264, while reserving the dispute in Dkt. No. 262 for a later order.