Herrick v. Shutterstock, Inc.

Background

At a telephone discovery conference, the court addressed Shutterstock’s request to serve document subpoenas under Federal Rule of Civil Procedure 45 on at least twelve absent class members and the parties’ oral request to extend the discovery deadlines.

Subpoenas to Absent Class Members

Cynthia Herrick objected to Shutterstock’s subpoena request. The court applied a test asking whether the party seeking discovery made a strong showing that the discovery was not sought for an improper purpose, harassment, or to change class membership; was narrowly tailored to plainly relevant subjects; and did not impose an undue burden given the need for the information and whether it could be obtained from a party.

The court found that Shutterstock met this standard. It stated that there was no evidence, and Herrick did not argue, that Shutterstock sought the information for an improper purpose. The five document requests were narrowly tailored to information about the licensing history, registration status, and ownership of proposed class members’ photographs. The court found that information relevant to commonality and typicality—requirements for class certification in this copyright-infringement action.

The court also found that the parties could not provide the information that absent class members might have. During the parties’ discussions, Shutterstock agreed to limit the requests to five and to seek documents rather than testimony. The court found the requested information plainly relevant to Shutterstock’s defense and unavailable through other means.

The court granted in part and denied in part Shutterstock’s request. Each side may issue seven subpoenas to absent class members of its choosing. Before issuing them, the parties must discuss revisions to the subpoena instructions, exchange information needed to permit Herrick to serve her subpoenas, and provide each other copies of the subpoenas and any information or documents received in response. The court limited the number and purpose of the subpoenas to reduce the burden on absent class members and the risk of changing class membership or discouraging class participation.

Extension of Discovery Deadlines

The court granted the parties’ request for a 45-day extension for good cause shown. The new deadlines were:

The court scheduled a status conference for May 20, 2025, at 3:00 p.m. on Webex.

Disposition

Judge Sarah L. Cave granted in part and denied in part Shutterstock’s request to subpoena absent class members, allowing seven subpoenas per side. She granted the parties’ request to extend discovery deadlines by 45 days.