Paramount Pictures Corporation v. ReplayTV, Inc., Joint Stipulation ...

12345678910111213141516171819202122232425262728materials will fully describe how Plaintiffs have marketed and promoted theproduct, as well as how Defendants have publicly described its functionality, andany management discussions and decision-making regarding the product. SincePlaintiffs have not seen all of these documents, they cannot possibly know them tobe insufficient.What Defendants have resisted producing is every draft, every email andevery other internal communication about any promotion, marketing, advertisingand sale of the product. Frankly, Defendants do not think that the cost of apromotional booth, or the details of logo design, are the last bit relevant here. Yet,Plaintiffs again have refused all efforts to narrow an absurdly overbroad request—for all documents “ relating to, regarding, referring to or reflecting any effort” to“ promote, market, advertise or sell” the device, throughout the Defendantcompanies.Plaintiffs neglect to cite a single case in which draft advertising wasconsidered in determining secondary liability or fair use under federal copyrightlaw. The cases cited in Plaintiffs’ footnote of the Joint Stipulation are all aboutactual advertisements, not drafts. It is the final advertisement, approved by thecompany and viewed by the public, that has any substantial probative value. 72/To the extent Plaintiffs truly seek to discover “ the facts about Defendants’product and Plaintiffs’ knowledge of its uses,” the technical materials, not draftpromotional, sales, and advertising materials are the place to find them. TheThe single case cited relating to draft advertisements is inapposite. See In reF.T.C., 2001-1 Trade Cases P 73,288, 50 Fed. R. Serv. 3d 139 (S.D.N.Y. Apr. 19,2001). Plaintiffs misleadingly suggest that the court in that case ordered productionof drafts over objections that drafts were not relevant. In fact, the relevance of draftadvertisements to proving claims for false advertising never was in question. Thesole issue was whether the drafts were protected by attorney-client privilege. Seeid. at *5-14. The decision provides no support whatsoever for Plaintiffs’ contentionthat draft advertisements are relevant in this action, in which there is no claimrelating to the content of Defendants’ advertisements. There, the advertising itselfwas the subject of the investigation and the basis of liability unlike the present case,in which Plaintiffs are simply searching for cumulative evidence regardingDefendants’ purported admissions.72/95