Davis v. Pinterest, Inc.

Background

Harold Davis filed a motion to compel against nonparty Chairish, Inc. The motion concerned a subpoena with two requests for production. Request 1 sought documents and communications about Chairish’s advertising on Pinterest, including ad placement, display, targeting, effectiveness, sales, analytics, objectives, and presentations. Request 2 sought documents sufficient to show the amounts Chairish paid Pinterest monthly or quarterly during the preceding three years.

Davis pointed to a Pinterest page displaying one of his registered works, “Kiss from a Rose,” near a work promoted by Chairish. He argued that Chairish’s advertising discovery could show Pinterest’s volitional conduct—that is, whether Pinterest itself selected the copyrighted material or whether its customers did so. Davis also argued that payments from Chairish to Pinterest were relevant to an infringer’s-profits theory. He said Chairish was representative of other advertisers whose campaigns had incorporated his works.

Chairish argued that Davis should have sought the information from Pinterest before subpoenaing a nonparty. Chairish also argued that the requested materials were irrelevant and highly confidential. Chairish maintained that Pinterest’s algorithm, rather than Chairish, determined what appeared near a user’s search results.

Court’s analysis

The court first considered relevance. It recognized that Davis had identified a specific example involving Chairish, and it treated the question whether the placement actually promoted one item through another as a merits issue rather than a reason to reject discovery at this stage.

The court found, however, that Chairish’s internal documents generally did not relate to Davis’s theory about Pinterest’s volitional conduct. Under that theory, the key information was what Chairish told Pinterest about placing Chairish’s advertisements. The court also stated that Chairish’s sales were not the same as Pinterest’s profits for purposes of Davis’s infringer’s-profits theory.

The court separately considered the amounts Chairish paid Pinterest. Although the court questioned how those payments could constitute infringer’s profits if there had been no discussion about placing Chairish’s ads next to Davis’s works, it treated that question as a merits issue. The court then focused on whether Davis had sought the relevant information from Pinterest before burdening Chairish with a subpoena.

Davis cited requests for production previously served on Pinterest. Those requests sought documents about advertisements near Davis’s works, advertisers whose content appeared near those works, Pinterest advertisements placed near those works, and tools or suggestions for ad placement. The court concluded that none specifically requested Chairish’s communications, and none requested the amounts Chairish or other advertisers paid Pinterest. It also concluded that Pinterest’s reasonable response to broad requests for “all documents related to” the subjects did not require searching the communications of every advertiser for Chairish-specific material.

Under Federal Rule of Civil Procedure 45, a court must quash or modify a subpoena that subjects a person to an undue burden. The court explained that parties generally should obtain discovery from one another before imposing discovery demands on nonparties. It concluded that the materials relevant to Davis’s theories could have been obtained from Pinterest and that Davis had not shown that he first asked Pinterest for those materials. The court also stated that Davis had not explained the relevance of the other materials sought in Request 1.

Disposition

The court denied Davis’s motion to compel against Chairish. The order did not resolve the merits of Davis’s copyright claims or determine whether his theories about advertisement placement, volitional conduct, or infringer’s profits would ultimately succeed.