United States District Court, District of Delaware
On July 30, 2009, Square Ring, Inc. ("Square Ring") filed suit against John Does 1-10, UStream. TV Inc., and UStream.TV.COM ("UStream") seeking damages and injunctive relief for copyright infringement under the Copyright Act, 17U.S.C. § 101, et seq. (D.I. 1.) In its complaint, Square Ring alleged that UStream disseminated on March 21, 2009 a copyrighted boxing and mixed martial arts broadcast owned by Square Ring. (D.I. 1 at ¶¶ 3-5.) Square Ring further alleged, among other things, that UStream did not remove or disable access to the broadcast after Square Ring made a demand. (Id. at ¶ 5.) On July 13, 2013, UStream filed a motion for summary judgment in which it argued that, under the safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512, it is immune from monetary liability for copyright infringement. (D.I. 100.)
Presently before this court is Square Ring's Rule 56(d) Motion to Deny or Continue Defendants' Motion for Summary Judgment. (D.L 114.) In the motion, Square Ring seeks an order pursuant to Federal Rule of Civil Procedure 56(d) either (1) denying UStream's motion for summary judgment or (2) permitting Square Ring to seek additional discovery regarding UStream's knowledge of infringing activity on UStream's website. (Id. at 9.) Because the court concludes that there is not sufficient reason to permit Square Ring to seek additional discovery, the court will deny Square Ring's motion.
Square Ring is a Florida-based and Delaware-incorporated boxing promotional company that is majority owned by boxer Roy Jones, Jr. ("Mr. Jones"). (D.I. 1 at ¶ 1.) UStream is a Delaware corporation that describes itself as a "live interactive video broadcast platform" with an "interactive broadcast functionality" that permits viewers to "personally interact directly with whoever is broadcasting." (D.I.26at ¶¶ 14, 17.) The events from which the instant motion arises relate to discovery.
On August 17, 2012, both Square Ring and UStream jointly filed an amended status report in which they proposed that fact discovery be completed by June 14, 2013. (D.L 46 at 12.) A couple of months later, on October 31, 2012, the court accepted this proposal and directed Square Ring to file a proposed scheduling order setting June 14, 2013 as the close of discovery. A week prior to this teleconference, UStream had served its responses to Square Ring's First Set of Requests for Admission, First Set of Interrogatories, and First Set of Requests for Production ("First Set of Discovery Requests"). (D.I. 58.) On November 7, 2012, counsel for both UStream and Square Ring conferred by phone. (D.I. 118 at 2; D.I. 120 at 1.) During that phone call, Square Ring's counsel stated that he was concerned about some objections to producing documents relating to third party broadcasts that UStream had made in its responses to Square Ring's First Set of Discovery Requests. (Id.) Square Ring's counsel requested that UStream produce documents relating to UStream's awareness of third parties' complaints of copyright infringement on UStream's website. (Id.) UStream's counsel agreed to consider this request. (Id.)
On November 21 or 23, 2013,  UStream produced an additional 1, 031 documents. (D.I. 118 at 2; D.I. 120 at 2.) UStream claims, and Square Ring does not dispute, that this production included hundreds of e-mails between UStream's content monitoring team and third parties discussing alleged infringement on UStream's website. (D.I. 118 at 2.) UStream also claims, and Square Ring again does not dispute, that Square Ring did not raise any concerns about the responsiveness of this supplemental production to Square Ring's document requests relating to third party complaints. (D.I. 118 at 3; D.I. 120 at 2.) On January 8 or 28, 2013,  UStream produced to Square Ring logs of DMCA complaints that UStream had received from third parties over the course of several years. (D.I. 118 at 2; D.I. 120 at 3.) UStream claims, and Square Ring does not deny, that these logs included; "the URL and name of the allegedly infringing UStream channel; the user ID associated with the allegedly infringing broadcast; the date and time that UStream removed the allegedly infringing content; the length of the broadcast; the viewer count; and the reason for the ban, " (D.I. 118 at 3.)
Both parties agree that Square Ring did not raise any objections or concerns about this second supplemental production. (D.I. 118 at 2; D.L 120 at 3.) UStream also claims, and Square Ring does not deny, that from the phone call on November 7, 2012 until the date on which Square Ring filed the instant Rule 56(d) motion, UStream did not receive any objection or request from Square Ring for additional documents. Square Ring alleges that it noticed deficiencies in both of UStream's supplemental productions, but did not raise any objections initially because its counsel was occupied with preparing a damages analysis for settlement purposes. (D.L 120 at 3.) Square Ring claims that it did not raise objections later on because its counsel was still reviewing UStream's productions and the parties agreed to stay the case pending Magistrate Judge Fallon's decision regarding a discharge dispute that Square Ring had with its former counsel. (Id.)
III. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure governs summary judgment and part (d) of the Rule is directed to the circumstance in which "facts are unavailable to the nonmovant." Rule 56(d) states:
"If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to ...