IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

SURVIVOR PRODUCTIONS, LLC, 

Plaintiff, 

v. 

ABBOTT DAIMLER, 

Defendant. 

Carl D. Crowell 

Drew P. Taylor 

Crowell Law 

943 Liberty Street S.E. 

Salem, OR 97308 

Attorneys for plaintiff 

Abbott Daimler 

2426 Roanoke Drive 

Ypsilanti, MI 48197 

Pro Se Defendant 

Page 1 - OPINION AND ORDER 

Case No. 3:15-cv-01482-AA 

OPINION AND ORDER 

Case 3:15-cv-01482-AA Document 39 Filed 06/27/16 Page 1 of 8
AIKEN, Judge: 

In this copyright infringement action, plaintiff Survivor Productions, LLC, alleges defendant 

Abbott Daimler used peer-to-peer file-sharing software to illegally download plaintiffs copyrighted 

motion picture, Survivor. On April 1, 2016, plaintiff served defendant with interrogatories, requests 

for production, and requests for admission, pursuant to Federal Rules of Civil Procedure 33, 34, and 

36. Defendant, who is prose, has provided no response to plaintiffs discovery requests. Plaintiff 

now moves for an order compelling defendant to respond. Defendant filed no official response to 

plaintiffs motion to compel, but did briefly address plaintiffs discovery requests in a letter filed the 

same day as plaintiffs motion to compel. 1 For the reasons set forth below, plaintiffs motion is 

granted, but the Court modifies the scope of the interrogatories and requests for production pursuant 

to Federal Rule of Civil Procedure 26. 

STANDARDS 

"Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate 

the sequence of discovery." Crawford-El v. Britton, 523 U.S. 574, 598 (1998); see also EM Ltd. v. 

Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012) ("Of course, as in all matters relating to 

discovery, the district court has broad discretion to limit discovery in a prudential and proportionate 

way.") In general, 

Parties may obtain discovery regarding any nonprivileged matter that is relevant to 

any party's claim or defense and proportional to the needs of the case, considering 

the importance of the issues at stake in the action, the amount in controversy, the 

parties' relative access to relevant information, the parties' resources, the importance 

of the discovery in resolving the issues, and whether the burden or expense of the 

proposed discovery outweighs its likely benefit. 

Fed. R. Civ. P. 26(b)(l). "On motion or on its own," the district court is required to limit "the 

frequency or extent of discovery" if 

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained 

from some other source that is more convenient, less burdensome, or less expensive; 

1 The Court construed the letter as a motion to dismiss and denied the motion. See Doc. 

32; Survivor Prods., LLC v. Daimler, 2016 WL 3032688 (D. Or. May 25, 2016). 

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Case 3:15-cv-01482-AA Document 39 Filed 06/27/16 Page 2 of 8
(ii) the party seeking discovery has had ample opportunity to obtain the information 

by discovery in the action; or 

(iii) the proposed discovery is outside the scope permitted by Rule 26(b )(1 ). 

Fed. R. Civ. P. 26(b)(2)(C). The court's responsibility to police compliance with Rule 26(b)(2)(C) 

takes on particular importance when one of the parties is pro se. Cf United States v. 3 0. 64 Acres 

of Land, More or Less, Situated in Klickitat Cnty., State of Wash., 795 F.2d 796, 804 n.18 (9th Cir. 

1986) (noting that district courts owe prose litigants "special solicitude" with respect to procedural 

matters). 

The Federal Rules of Civil Procedure also grant district courts broad authority to compel 

participation in the discovery process. See Fed. R. Civ. P. 37(a)(l), (3). This includes wide 

discretion to impose sanctions. See Fed. R. Civ. P. 37(b)-(f). 

With these principles in mind, I turn to plaintiff's motion to compel. 

DISCUSSION 

l Interrogatories 

Pursuant to the Federal Rules of Civil Procedure, defendant was required to respond to the 

interrogatories by May 1, 2016. See Fed. R. Civ. P. 33(b)(2) (requiring answers or objections to 

interrogatories within thirty days). He failed to do so, and according to this Court's Local Rules now 

has waived any objections to the interrogatories. See L.R. 26-5(a). Accordingly, plaintiff's request 

for an order compelling defendant to answer the interrogatories is granted. See Fed. R. Civ. P. 

37(a)(3)(B)(iii). 

However, pursuant to Fed. R. Civ. P. 26(b )(2)(C)(iii), I find the discovery sought through the 

first, second, third, fourth, and seventh interrogatories is not proportional to the needs of the case 

because the burden of responding outweighs the likely evidentiary benefit of the response. 

Accordingly, the first and seventh interrogatories are limited as follows: 

Interrogatory No. 1. Identify all computers (including equipment which performs 

computational functions) and electronic storage devices used at defendant's address 

commonly known as 2870 SE Kelly St., Portland, OR 97202, by defendant, other 

residents of defendant's address in the 2015 calendar year, or guests who stayed for 

at least seven full days or the equivalent at defendant's address that ma)' have had 

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Case 3:15-cv-01482-AA Document 39 Filed 06/27/16 Page 3 of 8
access to an IP address assigned to that address at any time in the 2015 calendar year, 

including providing dates of use, dates of purchase, current location, any brand or 

model number and other identifying designation, and the storage capacity of each 

such device listing number of drives, model and size where available. If any such 

computer or storage device is no longer at the location, in your possession, or subject 

to your control, describe how, when and why you no longer have possession or 

control of the device. 

Interrogatory No. 7. Attached hereto is a list of BitTorrent activity observed 

associated with IP address 71.59.252.243, identified as Exhibit B. Please identify 

by item number any titles or files that defendant ever observed (through any means), 

shared, downloaded or attempted to download through the BitT orrent protocol at any 

time by file number. If defendant denies observing, sharing, downloading, or 

attempting to download any of the listed titles or files through the BitTorrent 

protocol, a blanket denial is an acceptable response to this interrogatory. For each 

such identified title or file, state: ... 

In addition, the second, third, and fourth interrogatories shall now apply to the modified version of 

Interrogatory No. 1. So, for example, in response to Interrogatory No. 2 as modified, defendant 

would need to list the name and contact information of a friend who visits most afternoons and uses 

a computer at the house for two hours, but would not need to list the name of a friend who visited 

for one weekend during the year. 

In his letter requesting dismissal, defendant expressed concern about his ability to obtain 

some of the requested information. Defendant is obligated only to undertake reasonable efforts to 

fully respond to the modified interrogatories. See Oatman v. Sec '.Y of Treasury of US., 893 F. Supp. 

937, 939 (D. Idaho 1995). Ifhe cannot provide an answer after making a reasonable effort to obtain 

the necessary information, a description of those reasonable efforts is a satisfactory response. 

11 Requests for Production 

Defendant was required to respond to the requests for production by May 1, 2016. See Fed. 

R. Civ. P. 34(b)(2) (requiring answers or objections to requests for production within thirty days). 

He failed to do so, and according to this Court's Local Rules now has waived any objections to the 

interrogatories. See L.R. 26-5( a). Accordingly, plaintiffs request for an order compelling defendant 

to produce documents and things is granted. See Fed. R. Civ. P. 37(a)(3)(B)(iv). 

However, pursuant to Fed. R. Civ. P. 26(b )(2)( C)(iii ), I find the discovery sought through the 

requests for production is not proportional to the needs of the case because the burden of responding 

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outweighs the likely evidentiary benefit of the response. Moreover, nearly all of the requests for 

production fail to comply with Rule 34' s requirement to identify the items sought with "reasonable 

particularity." Fed. R. Civ. P. 34(b)(l)(A). In fact, many of the requests are so broad, it is unclear 

to what extent the information sought is relevant at all to this issues in this case. 

The vast majority of plaintiffs requests for production sweep far too broadly and must be 

stricken in their entirety because they exceed the scope of Rule 26(b )(1) and fail utterly to meet the 

particularity requirement of Rule 34(b )(1 )(A). See Manual for Complex Litigation (Fourth)§ 11.443 

(2004) (urging courts to "prevent indiscriminate, overly broad, or unduly burdensome demands -

in general, forbid sweeping requests, such as those for 'all documents relating or referring to' an 

issue, party or claim, and direct counsel to frame requests for production of the fewest documents 

possible"); Regan-Touhy v. Walgreen Co., 526 F.3d 641, 650 (10th Cir. 2008) (disapproving 

"kitchen sink" requests for production). Specifically, 

• Document request number 1 seeks a complete "clone of each hard drive or 

electronic media storage device used with any computing device used or 

operated in your house ... within the last two (2) years"; 

• Document request number 2 seeks "[a]ll documents referring, relating to or 

comprising records of your Internet browser's history"; 

• Document request number 3 seeks "[a]ll documents referring, relating to or 

comprising records associated with the purchase of any computing device or 

electronic media storage device used at your residence" in the last two years; 

• Document request number 6 seeks "[a]ll documents referring, relating to or 

comprising written communications from your" internet service provider; 

• Document request number 7 seeks "[ a]all documents, including credit card 

statements, receipts, or other statements referring to or relating to the 

purchase or installation of any software or digital media for use on a 

computing device" within the last three years; 

• Document request number 8 seeks a complete copy of all files m an 

electronic storage locker used by anyone in the household; 

• Document request number 9 seeks a complete copy of all files in a cloudbased storage system used by anyone in the household; 

• Document request number 10 seeks a complete copy of all files in any video 

game consoles used by anyone in the household; 

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Case 3:15-cv-01482-AA Document 39 Filed 06/27/16 Page 5 of 8
• Document request number 11 seeks "[a]ny documents pertaining to receipts 

of purchases, credit card statements, checks cashed, bank account statements, 

or travel documents that may evidence that you were not at your residence or 

in control of your IP address at any time in 2015"; 

• Document request number 12 seeks any documents or contracts pertaining to 

ownership of the property or rental agreements involving the residential 

property located at defendant's address; and 

• Document request number 14 seeks all credit card and bank statements 

relating to purchases of electronic equipment and computer devices in the 

past three years. 

Pl.'s Mot. Compel Ex. 2 (doc. 27-2). 

These requests run afoul of the Federal Rules in three ways: their burden far outweighs their 

potential evidentiary value, they do not even come close to meeting the requisite particularity 

standard, and they push the bounds of the Rules' lenient relevancy rules. Requesting every document 

and piece of software on every electronic device used in defendant's home in the past several years, 

in addition to mountains of receipts, bills, financial statements, notices, travel documents, and rental 

agreements, is not a good faith discovery plan. Document requests numbers 1 through 3, 6 through 

10, 12, and 14 are stricken in their entirety. Plaintiff may submit a second round of requests for 

production to defendant, but those requests must be specifically targeted to address plaintiff's claims 

of copyright infringement. 

III Requests for Admission 

Under the Federal Rules, if a party fails to respond to a request for admission within thirty 

days, the requested admissions are deemed admitted. See Fed. R. Civ. P. 36(a)(3). "A matter 

admitted under [Rule 36] is conclusively established unless the court, on motion, permits the 

admission to be withdrawn or amended." Fed. R. Civ. P. 36(b); Conlon v. United States, 474 F.3d 

616, 621 (9th Cir. 2007). Therefore, all plaintiffs requested admissions are deemed admitted. If 

defendant wishes to withdraw or amend any or all of the admissions, he must submit a written 

motion to the Court. 

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Case 3:15-cv-01482-AA Document 39 Filed 06/27/16 Page 6 of 8
WARNING TO BOTH PARTIES 

Failure to comply with this Opinion and Order may lead to sanctions. Sanctions may include, 

among other penalties, an order to pay the attorney's fees and costs of the opposing party. If the 

failure to comply is serious enough or persists for long enough, the Court has the authority to enter 

dispositive or terminating sanctions, which mean the other party automatically wins the case. 

Defendant is ORDERED to respond to plaintiffs interrogatories as modified in this Order 

and to produce documents responsive to the remaining requests for production (numbers 4, 5, and 

13, relating to defendant's use of a modem/wireless router and forensic software used to preserve 

or delete files) by August 1, 2016. 

Defendant is further ORDERED to respond promptly to any future discovery requests and 

other communications from plaintiffs counsel. The Federal Rules of Civil Procedure provide 

discovery time limits. Generally, as explained in this opinion, a response to a discovery request is 

due within 30 days unless the parties agree to a different time frame. 

In his letter requesting dismissal, defendant stated he is dealing with an acute family health 

emergency. The Court is sympathetic to defendant's situation, but refusing to respond at all to 

discovery requests or to communicate with plaintiffs counsel is not acceptable. If it would impose 

a serious hardship for defendant to comply with this Order by August 1, 2016 or to respond to future 

discovery requests by the applicable due date, defendant must attempt to reach an agreement with 

plaintiff to extend discovery. The Court expects plaintiff to respond reasonably to requests to extend 

deadlines when there are extenuating circumstances. If the parties are unable to reach an agreement, 

they may ask the Court to resolve the discovery or schedule dispute. The Court reminds defendant 

that ifhe is interested in legal representation, he should submit a request for appointment of pro bono 

counsel to the Court. 

Plaintiff is ORDERED to comply with the letter and spirit of the Federal Rules of Civil 

Procedure in all future discovery requests. All requests are to be narrowly tailored to obtain 

information relevant and useful to the efficient resolution of this case. This Court will not tolerate 

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Case 3:15-cv-01482-AA Document 39 Filed 06/27/16 Page 7 of 8
bullying disguised as a discovery request, particularly when the opposing party is prose. 

Failure to abide by the terms oft/tis Opinion and Order shall he a basis/or sanctions, up 

to and including dispositive sanctions, pursuant to Federal Rule of Civil Procedure 37. 

CONCLUSION 

Plaintiffs Motion to Compel Responses to Requests for Discovery and Deem Answers 

Admitted (doc. 26) is GRANTED, subject to the extensive modifications to plaintiffs Interrogatories 

and Requests for Production outlined in this Opinion and Order. 

IT IS SO ORDERED. 

Dated this) 1 day of June 2016. 

Lrl.L-J 

Ann Aiken 

United States District Judge 

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