Seliger v. Breitbart News Network, LLC
- Edgardo Ramos
- 1:20-cv-02860
- U.S. District Court · Southern District of New York
- 9
In Seliger v. Breitbart, Judge Ramos partly granted and partly denied Breitbart’s request to limit deposition topics.
Mark Seliger and Breitbart News Network, LLC, particularly their conduct of the organization’s deposition and related discovery.
What happened
In Seliger v. Breitbart News Network, LLC, Mark Seliger sought testimony from Breitbart News Network through a deposition notice covering 11 topics about a photograph and related article. Breitbart objected that several topics were too broad, vague, or difficult to prepare for.
The court partly granted and partly denied Breitbart’s request for a protective order, which is a request to limit or restrict discovery. The court narrowed some topics, including testimony about creating and publishing the photograph, access to other works, defenses, and broad communications. It allowed testimony on the remaining topics, including contracts, the photograph’s acquisition, and the absence of other uses.
Judge Edgardo Ramos allowed Seliger either to proceed under the narrowed notices or serve revised notices by March 1, 2021, and required the parties to submit an amended scheduling order.
The detailed version
- Seliger v. Breitbart News Network, LLC · No. 1:20-cv-02860
- Edgardo Ramos
- Feb. 22, 2021
Background
Mark Seliger served Breitbart News Network, LLC (BNN) with a deposition notice under Federal Rule of Civil Procedure 30(b)(6). That rule allows a party to question an organization through designated witnesses, who must provide complete and knowledgeable answers on the organization’s behalf. Seliger’s notices covered 11 topics concerning one photograph, an article containing the photograph, related communications, contracts, acquisition of the photograph, and profits or revenue.
After BNN objected, Seliger served amended notices. BNN then asked for a protective order under Rule 26(c), which allows a court to limit discovery to prevent undue burden, expense, or other harm. BNN argued that several topics were vague, overbroad, compound, or did not describe the requested testimony with enough detail for BNN to prepare a witness.
Court’s analysis
The court explained that a Rule 30(b)(6) notice must describe deposition topics with “reasonable particularity.” The court considered whether the topics were sufficiently specific, whether they included useful limits or references, and whether a reasonable organization would understand how to prepare. The court also explained that BNN could be required to provide a witness even if it claimed not to have information, including testimony about why the information was unavailable and what efforts were made to obtain it.
For Amended Deposition Notice 1, the court ruled as follows:
- Topic 1: The court granted protection in part by limiting the topic to the creation, editing, modification, display, and publication of the photograph. The term “exploitation” was too vague. Seliger could serve an amended notice addressing additional topics about exploitation. - Topic 2: The request concerning contracts and agreements involving the photograph was allowed. BNN had to provide testimony about whether such contracts or agreements existed. - Topic 3: The request concerning contracts and agreements involving Seliger was allowed for the same reason. - Topic 4: The request concerning instructions, specifications, and related communications was allowed. If no communications with outside parties existed, BNN still had to provide testimony about that fact. - Topic 5: The court granted protection to the extent Seliger sought information about BNN’s access to photographs other than the photograph at issue in the case. - Topic 6: BNN stated that it would provide a witness about non-privileged information concerning its response to the infringement notice, so the court found no need for a protective order on this topic. - Topic 7: The court granted protection because the request for testimony about BNN’s defenses was too vague and broad. Any amended notice had to identify the requested testimony more specifically. - Topic 8: The court denied protection. BNN had to provide testimony about the claimed absence of advertising, marketing, or other uses of the photograph. - Topic 9: The court granted protection because the request for any communications about the article or photograph was a broad catch-all without a sufficient limiting principle. Any additional communications topic had to be described with reasonable particularity. - Topic 10: The court denied protection. The topic sufficiently focused on communications about how BNN obtained the photograph.
For Topic 1 of Amended Deposition Notice 2, concerning calculations of gross and net profits from sales, licenses, displays, distributions, or other uses of the photograph, the court denied protection. BNN had to provide a witness about the estimated gross revenue and explain why it could not provide testimony about estimated gross or net profits if it could not do so.
Ruling and effect
The court granted in part and denied in part BNN’s motion for a protective order concerning Seliger’s deposition notices. Specifically, protection was granted for portions of Topics 1 and 5, and for all of Topics 7 and 9 in Amended Deposition Notice 1. The motion was otherwise denied.
By March 1, 2021, Seliger had to either serve Third Amended Deposition Notices complying with the order or notify BNN that he would proceed under the Second Amended Notices as limited by the order. Because discovery was scheduled to end on February 26, 2021, the parties also had to submit an amended scheduling order for the court’s approval by that date. The order did not prevent BNN from objecting to individual deposition questions in the ordinary course.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.