FuboTV Inc. v. The Walt Disney Company

Background

FuboTV Inc. and FuboTV Media Inc. asked the court to compel defendants to produce text messages between document custodians concerning the defendants’ joint venture. Fubo’s discovery requests sought communications about the joint venture and incorporated Local Civil Rule 26.3’s definition of “communication” as the transmittal of information, including facts, ideas, and inquiries.

Fubo said defendants had agreed to produce other electronic communications, including chat messages, but refused to produce text messages. Fubo proposed limiting the request to one-on-one texts between custodians and group texts containing at least two custodians. Fubo argued that texts from executives involved in negotiating and making decisions about the joint venture could be relevant to the preliminary-injunction hearing.

Arguments

Fubo argued that text messages fell within the discovery requests’ definition of communications and that defendants had not objected to producing them when responding to the requests. Fubo also argued that the request was narrow and that defendants had not shown that production would impose an undue burden.

The order identified several circumstances weighing against compelling production on the expedited schedule: the approaching deadline for substantial completion of document production, Fubo’s delay in confirming that text messages were included in the relevant definition of “communication,” and the significant burden that collecting and reviewing the messages would impose on defendants in the limited time available.

Ruling

Judge Margaret M. Garnett denied Fubo’s motion to compel at Docket No. 179. The order stated that the denial was without prejudice to Fubo’s ability to seek text messages through normal, broader discovery after the preliminary-injunction hearing, if such discovery proceeded. The order did not decide whether the requested text messages ultimately would be discoverable in that later discovery.