Davis v. Pinterest, Inc.

Background

Pinterest filed two discovery motions on the last day for filing a motion to compel. One sought discovery concerning Davis’s copyright-infringement claims, including Pinterest’s possible license defense, Pixsy materials, and other information. The second asked the court to determine that four documents produced by Pixsy were not protected by the attorney work-product doctrine. Because both motions made factual assertions that lacked supporting evidence, the court requested supplemental briefing and reviewed more than 600 pages of exhibits.

Timeliness of the Motion to Compel

The scheduling orders set July 2, 2021, as the close of fact discovery, except that Pinterest could pursue discovery about identified alleged infringements through September 3, 2021. A later order extended the general fact-discovery deadline to August 6 solely for depositions and left the other deadlines, including written-discovery deadlines, unchanged.

Davis argued that the later order ended all written discovery on July 2, making Pinterest’s motion to compel untimely. The court disagreed. It interpreted the later order as extending the general fact-discovery deadline only for depositions and concluded that Pinterest could pursue discovery about identified alleged infringements through September 3. The court also interpreted discovery “regarding” the alleged infringements to include defenses to the allegations and damages. It therefore found Pinterest’s motion timely.

Rulings on the Discovery Requests

The court ordered Davis to answer Interrogatory 4, which sought information about occasions when other people were licensed or authorized to copy the works at issue. Davis had to answer to the best of his ability and identify the portions he could not answer because he lacked sufficient information.

The court concluded that Interrogatory 5 was not overly broad and ordered Davis to answer it. The excerpt provided does not include the court’s full discussion of the adequacy of Davis’s existing answer.

For Requests for Production 3–5 and 12–13, Pinterest presented evidence creating substantial doubt that Davis had produced all responsive materials. The court ordered Davis to search his documents again and produce responsive, non-privileged documents within his possession, custody, or control.

The court also ordered Davis to answer Interrogatory 8 about occasions when the works at issue had been uploaded by him or with his authorization. He had to answer as fully as possible and identify information he could not provide. The court noted that Davis had hired Pixsy to conduct internet searches for the works and determine where images came from.

For Requests for Production 15 and 32, Pinterest sought Pixsy documents and communications that Davis withheld based on work-product protection. The court declined to order production of the entire universe of Pixsy materials at that stage because work-product disputes generally require a document-by-document assessment. The court ordered Davis to prepare a privilege log identifying the Pixsy documents and communications he was withholding and explaining the basis for the claimed protection.

The court ordered Davis to produce responsive settlement agreements concerning alleged infringements of his photographs that were within his possession, custody, or control. It rejected his assertion that confidentiality justified withholding them because the case had a protective order.

The court stated that Pinterest’s motion to compel was granted in part and denied in part as stated above. It required Davis to provide all discovery ordered by the ruling within 21 days.

Work-Product Claim

Davis claimed work-product protection for Pixsy documents numbered 221–222, 223–227, 228, and 229. During his deposition, he gave extensive testimony about all four documents. In a later deposition of a Pinterest witness, Davis’s counsel also questioned the witness about Pixsy 229.

The court held that Davis’s testimony about the documents, without asserting work-product protection, waived the protection. It also held that Davis’s counsel’s use of Pixsy 229 during the deposition further waived protection for that document. The court rejected Davis’s argument that the waiver did not apply because Pixsy, rather than Davis, produced the documents. The court found that Davis had waived work-product protection over all four documents.

Other Disposition

The court granted Pinterest’s unopposed motion to file supplemental evidence. This was a discovery order, not a decision on whether Davis or Pinterest ultimately prevailed on the copyright-infringement claims.