Burns v. Imagine Films Entertainment, Inc.

164 F.R.D. 594, 1996 U.S. Dist. LEXIS 2107, 1996 WL 78295
District Court, W.D. New York·Decided February 16, 1996·No. No. 92-CV-243S·Published·Cited by 8 cases

Opinion

DECISION and ORDER

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned by the Honorable William M. Skretny on July 15, 1992 for determination of any non-dispositive motions. The matter is presently before the court on Defendants’ motion for reconsideration, filed December 29, 1994.

[596]*596 BACKGROUND and FACTS

Plaintiffs, Terrence Burns, M.D. and John Zoll, commenced this copyright infringement action on April 8, 1992. Plaintiffs, both firefighters, claim that they collaborated on two screenplays about firefighters which they sent to Anthony Yerkovich, a screenwriter located in Santa Monica, California. Plaintiffs contend that, thereafter, the movie Backdraft, a film about firefighters, was released in 1991 by Defendants Imagine Films Entertainment (“Imagine Films”), MCA, Inc. (“MCA”), and Universal City Studios (“Universal”), and that the screenplay for Backdraft had used significant portions of Plaintiffs’ original screenplays, “Down to Gehenna” and “Baptism of Fire,” both of which were copyrighted works.

On September 14, 1992, Plaintiffs served their First Set of Interrogatories and Request for Production of Documents. The portions of the document request relevant to this motion, Document Request Nos. 5, 6, 7 and 8, required Defendants to produce all documents, including final, interim or periodic financial records and revenues received from the conception, creation, marketing, distribution or merchandising of Backdraft, as well as all expenses, charges and allowances subtracted from gross revenues to calculate net profit, all contracts and agreements to pay any person, party or entity for expenses for any of the above, all contracts and correspondence relating to any of the above, and all documents relating to compensation paid, promised to be paid, or owing to any person or entity for the conception, creation, modification, writing or revision of the script of Backdraft, including book, magazine or short story versions of Backdraft.

Upon receipt of Plaintiffs’ request for production of documents, Defendants moved, on November 23, 1992, for a protective order to defer discovery on damage-related issues until three months prior to trial or until resolution of Defendants’ summary judgment motion,1 and to allow redaction of all financial references in documents subject to discovery. By order dated August 9, 1993, this court denied Defendants’ motion for the requested protective order, and found that discovery as to both liability and damage issues should proceed in the usual manner. No objections were filed with respect to this decision, nor was there a motion to reargue or reconsider.

On June 30, 1993, Plaintiffs moved to compel disclosure of certain documents which Defendants refused to provide, or had provided in redacted form, and more specific answers in response to Plaintiffs’ First Set of Interrogatories. Additionally, Plaintiffs sought to review the original documents rather than the copies supplied by Defendants. Finally, Plaintiffs objected to Defendants’ responses to the First Set of Interrogatories in which Defendants stated that the interrogatories were vague, overbroad and not reasonably calculated to lead to disclosure of admissible evidence, and refused to answer such interrogatories. Thereafter, Defendants moved, on September 10,1993, to bifurcate the trial on the issue of liability from the trial on the issue of damages, and to stay discovery on damage-related issues pending a determination of liability.

On March 21, 1994, this court denied Defendants’ motion to bifurcate and stay discovery on damage-related issues, as it concluded that discovery relating to damages could conceivably lead to information relevant to the issue of access. Decision and Order dated March 21, 1994 at pp. 5-7. In the same decision, the court granted, in part, Plaintiffs’ motion to compel, ordering the Defendants to produce documents responsive to Plaintiffs’ Document Request Nos. 5, 6, 7 and 8. The court found that Plaintiffs were entitled to a full response to Document Request Nos. 5, 6 and 8, see Decision and Order dated March 21, 1994, and, after in camera inspection, directed Defendants to produce a redacted version of the distribution agreement between Universal and Imagine Films in response to Request No. 7.2 Decision and [597]*597Order dated April 7, 1994. Again, no objections to these orders were filed, nor did Defendants move for reconsideration.

Defendants filed their summary judgment motion on March 22, 1994. In conjunction with this motion, Defendants sought a stay of all discovery pending resolution of the motion for summary judgment. On May 14, 1994, the court ordered briefing on the issue of a stay of discovery generally, but directed that all previously ordered discovery go forward. Order dated May 16,1994 at p. 2.

In response to this court’s March 21, 1994 order, Defendants produced two hundred documents including production notes, screenwriter agreements, distribution agreements, scene notes, reactions to drafts, script cuts and drawings, memoranda regarding payments to Gregory Widen, the script writer, rights to release the film, and agreements between Imagine Films and others regarding Backdraft. However, all documents addressing expenses, charges, contracts and obligations to pay persons or entities, as well as documents regarding persons or entities that received payment for services rendered responsive to Plaintiffs’ Document Request were not produced. Rather, reasserting their earlier contention that it would be “onerous and burdensome to have to provide the voluminous documents demanded,” Declaration of Ralph L. Halpern, Esq., dated November 23, 1992 at ¶ 15, Defendants indicated by letter dated June 10, 1994, that “[defendants] presently intend to produce for plaintiffs’ review documents setting forth the financial information responsive to plaintiffs’ first request for documents, in accordance with Judge Foschio’s recent orders as soon as they are received from California.” Plaintiffs’ Motion for Sanctions, Zuydhoek Affidavit A, filed September 2, 1994, Exhibit B. By letter dated June 20, 1994, Defendants’ counsel stated that documents containing financial information responsive to Plaintiffs’ first request for documents would be made available for inspection on June 23, 1994. Plaintiffs’ Motion for Sanctions, Zuy-dhoek Affidavit A, filed September 2, 1994, Exhibit C. However, on June 23, 1994, contrary to Plaintiffs’ expectation of full production, Defendants produced only six pages of financial “summaries” setting forth the total receipts and expenses for Backdraft, including “summaries” of production costs, distribution expenses and post-production annual figures.

After Plaintiffs’ motion for sanctions was filed, in a letter dated October 18, 1994, Defendants’ attorney admitted that additional financial documentation relating to costs and expenses associated with the Backdraft film’s production and distribution existed in “four different film exchange locations in the United States, and one in Puerto Rico, one in Canada, and at numerous foreign locations.” McCarthy Affidavit, filed October 21, 1994, Exhibit A, p. 4.

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Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 594, 1996 U.S. Dist. LEXIS 2107, 1996 WL 78295 (W.D.N.Y. 1996).

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