Robert Stevens v. CoreLogic, Inc.

Residential real estate sales today depend largely on

online sites displaying properties for sale. Plaintiffs Robert

Stevens and Steven Vandel (“the Photographers”) are

professional real estate photographers who take photographs

of listed properties and license them to real estate agents.

The real estate agents, in turn, upload such photographs to

Multiple Listing Services (“MLS”) — computerized

databases of listed properties — using Defendant

CoreLogic’s software.

In this action against CoreLogic, the Photographers allege

that CoreLogic removed copyright management information

from their photographs and distributed their photographs with

the copyright management information removed, in violation

of 17 U.S.C. § 1202(b)(1)–(3). We affirm the grant of

summary judgment in favor of CoreLogic.

4 STEVENS V. CORELOGIC

FACTS AND PROCEEDINGS BELOW

A. Metadata

Stevens and Vandel are hired by real estate agents to take

digital photographs of houses for sale. The Photographers

retain the copyright in those photographs and license them to

the agents. Like most digital photographs, at least some of

Stevens’ and Vandel’s photographs contain metadata — i.e.,

data about the image file itself. Metadata is not visible on the

face of the image. Rather, it is either embedded in the digital

file or stored outside the image file, such as in a “sidecar”

file, and can be viewed using computer programs.

Some metadata is generated automatically by cameras.

The Exchangeable Image File Format (“EXIF”) is used by

virtually all digital cameras to store information about the

settings used to capture a digital image. EXIF information

can include the make, model, and serial number of the camera

taking the photograph; the shutter speed; the aperture

settings; light sensitivity; the focal length of the lens; and

even, in some cases, the location at which the photo was

captured. Essentially, EXIF metadata provides information

about when the image was taken and under what technical

conditions.

Other metadata may be added manually, either by

programming the camera or by adding information after

taking the picture, using photo editing software. Such

metadata is often stored in IPTC format, named for the

International Press Telecommunications Council, which

developed metadata standards to facilitate the exchange of

news. IPTC metadata can include, for example, the title of

the image, a caption or description, keywords, information

STEVENS V. CORELOGIC 5

about the photographer, and copyright restrictions. It may be

used to check copyright information, to sort images, and to

provide accurate search results in an image database or search

engine. A small number of fields such as Author/Creator,

Copyright, and Caption/Description exist in both EXIF and

IPTC formats.

Copyright law restricts the removal or alteration of

copyright management information (“CMI”) — information

such as the title, the author, the copyright owner, the terms

and conditions for use of the work, and other identifying

information set forth in a copyright notice or conveyed in

connection with the work. See 17 U.S.C. § 1202(b)–(c). Both

EXIF and IPTC metadata can contain “copyright

management information.”

B. CoreLogic Software

CoreLogic is a California-based corporation that develops

and provides software to Multiple Listing Services. Known

as one of the “Big 3” real estate software vendors nationally,

CoreLogic currently markets, or has previously marketed,

several MLS software platforms, including Matrix, InnoVia,

Fusion, MLXchange, Tempo 4, and Tempo 5. The

Photographers allege that CoreLogic’s software removed

CMI metadata from their photographs, in violation of

17 U.S.C. § 1202(b).

Because image files can be very large, CoreLogic’s MLS

software resizes or “downsamples” images. Downsampling

entails creating and saving a copy of an uploaded image in a

smaller number of pixels and deleting the original image; the

process reduces storage size, facilitates computer display, and

helps images load faster on web pages.

6 STEVENS V. CORELOGIC

The image processing aspect of CoreLogic’s software was

not developed by CoreLogic entirely on its own. Like

virtually all software, CoreLogic’s software incorporated

“libraries” — pre-written code that can be used by a computer

program and that enables software to develop in a modular

fashion. These libraries are unable to read EXIF data from

image files or to write EXIF data to image files. Thus, when

images are copied or resized using the code from these preexisting

libraries, metadata attached to those images is not

retained.1

The Photographers2 filed this action in May 2014.

Significantly, the dispute is limited to metadata. The

Photographers do not allege that CoreLogic’s software

removed visible CMI, such as digital watermarks, from their

1 It is not uncommon for image processing software to fail to preserve

metadata. Tests conducted by the Embedded Metadata Group in 2015

revealed that, of fifteen social media websites studied, eight preserved

EXIF metadata and seven, including, Facebook, Instagram, and Twitter,

did not. Some image-processing libraries, however, such as

“ImageMagick,” do read and write EXIF data, and thus transfer EXIF

metadata to the new image file when resizing.

2 Stevens’ company, Affordable Aerial Photography, was named as

an additional plaintiff in the amended complaint. Affordable Aerial

Photograph did not, however, file a timely notice of appeal from the

district court’s July 5, 2016 judgment: The Notice of Appeal filed on July

29, 2016 identified only Stevens and Vandel as appellants. An amended

notice of appeal was filed several months later, on January 26, 2017, and

included Affordable Aerial Photography. That notice of appeal was

untimely as to the July 5, 2016 judgment. See Fed. R. App. P. 4(a)(1).

We therefore lack jurisdiction to consider the appeal by Affordable Aerial

Photography as it relates to the July 5, 2016 judgment. The amended

notice of appeal was, however, timely as to the January 11, 2017 order

denying the Photographers’ motion to re-tax costs, and Affordable Aerial

Photography is therefore properly a party as to that portion of the appeal.

STEVENS V. CORELOGIC 7

photographs, and indeed, CoreLogic’s software does not

detect, recognize, or remove visible CMI. Cf. Murphy v.

Millennium Radio Grp. LLC, 650 F.3d 295, 305 (3d Cir.

2011) (imposing liability on a defendant who cropped out the

photographer’s name from the “gutter” copyright credit

before posting a photograph online).

After receiving the Photographers’ initial complaint,

CoreLogic modified its software to ensure that EXIF

metadata is copied and restored to images processed by

CoreLogic’s MLS software. These modifications were made

within a few months of receiving the initial complaint,

although testing and installation of the revised version on all

MLSs using CoreLogic software took several more months.

The Photographers contend that, even after these changes,

CoreLogic software continues to remove IPTC metadata.

In addition to providing MLS software — which, again,

real estate agents use to share information about properties

with other agents — CoreLogic also operates the Partner

InfoNet program, which allows MLSs to license their

aggregated real estate listing data to mortgage lenders and

servicers, in exchange for a share of the licensees’ revenue.

CoreLogic used photographs taken and owned by the

Photographers on Partner InfoNet products.

After the discovery deadline, but before all discovery

disputes were resolved, Core Logic filed a motion for

summary judgment. The district court granted summary

judgment in favor of CoreLogic and denied as moot the

Photographers’ motion to compel the production of additional

documents.

8 STEVENS V. CORELOGIC

After entry of judgment, CoreLogic filed a Bill of Costs,

to which the Photographers objected. The district court

denied the Photographers’ motion to re-tax costs with respect

to witness fees for CoreLogic corporate employees. This

timely appeal followed.

DISCUSSION

A. Violation of 17 U.S.C. § 1202(b)

The Photographers allege that CoreLogic’s software

removed CMI metadata, in violation of 17 U.S.C.

§ 1202(b)(1), and that CoreLogic distributed images knowing

that copyright management information was removed, in

violation of 17 U.S.C. § 1202(b)(3). Reviewing de novo the

district court’s decision to grant summary judgment to

CoreLogic, see Perfect 10, Inc. v. Giganews, Inc., 847 F.3d

657, 665 (9th Cir. 2017), we affirm the grant of summary

judgment.

1. Section 1202(b) Requires an Affirmative

Showing That the Defendant Knew the

Prohibited Act Would “Induce, Enable,

Facilitate, or Conceal” Infringement

Section 1202(b)(1) provides: “No person shall, without

the authority of the copyright owner or the law . . .

intentionally remove or alter any copyright management

information . . . knowing, or . . . having reasonable grounds

to know, that it will induce, enable, facilitate, or conceal an

infringement of any” copyright. 17 U.S.C. § 1202(b)(1).

Section 1202(b)(3) provides: “No person shall, without the

authority of the copyright owner or the law . . . distribute,

import for distribution, or publicly perform works, copies of

STEVENS V. CORELOGIC 9

works, or phonorecords, knowing that copyright management

information has been removed or altered without authority of

the copyright owner or the law, knowing, or . . . having

reasonable grounds to know, that it will induce, enable,

facilitate, or conceal an infringement of any” copyright. Id.

§ 1202(b)(3).3 Both provisions thus require the defendant to

possess the mental state of knowing, or having a reasonable

basis to know, that his actions “will induce, enable, facilitate,

or conceal” infringement.

The Photographers have not offered any evidence to

satisfy that mental state requirement.4 Their primary

argument is that, because one method of identifying an

3 The Photographers’ complaint also alleges a violation of 17 U.S.C.

§ 1202(b)(2). Section 1202(b)(2) refers to the “distribut[ion] or import for

distribution [of] copyright management information knowing that the

copyright management information has been removed or altered without

authority of the copyright owner or the law.” 17 U.S.C. § 1202(b)(2)

(emphasis added). The Photographers do not specifically allege any

instances involving the distribution of altered CMI separate from the

distribution of the copyrighted photographs. As the elements of the two

statutory provisions are otherwise indistinguishable, the Photographers

have not plausibly stated a claim under Section 1202(b)(2) different from

their claim under Section 1202(b)(3). We therefore discuss in the text

only the Section 1202(b)(3) claim.

4 As this reason is a sufficient basis for concluding that the

Photographers’ claims fail, we do not consider whether CoreLogic

“intentionally” removed CMI, whether the Photographers presented

sufficient evidence that the photographs contained CMI at the time they

were uploaded, whether the Photographers impliedly licensed the removal

of CMI, or whether CoreLogic, as a software developer, can be liable for

third parties’ use of its software.

10 STEVENS V. CORELOGIC

infringing photograph has been impaired,5 someone might be

able to use their photographs undetected. That assertion rests

on no affirmative evidence at all; it simply identifies a

general possibility that exists whenever CMI is removed.

As we interpret Section 1202(b), this generic approach

won’t wash. It is a fundamental principle of statutory

interpretation that we must “give effect, if possible, to every

clause and word of a statute,” Montclair v. Ramsdell,

107 U.S. 147, 152 (1883), “so that no part will be inoperative

or superfluous, void or insignificant,” Corley v. United States,

556 U.S. 303, 314 (2009); see also Hibbs v. Winn, 542 U.S.

88, 101 (2004); Astoria Fed. Savs. & Loan Ass’n v. Solimino,

501 U.S. 104, 112 (1991). To avoid superfluity, the mental

state requirement in Section 1202(b) must have a more

specific application than the universal possibility of

encouraging infringement; specific allegations as to how

identifiable infringements “will” be affected are necessary.

At the same time, as the statute is written in the future

tense, the Photographers need not show that any specific

infringement has already occurred. Also, recognizing that

“nothing is completely stable, no plan is beyond alteration,”

5 As noted, CoreLogic’s software does preserve visible watermarks,

which Stevens and Vandel testified they sometimes use to identify their

photographs. Experts advise that watermarks offer a more reliable way of

indicating copyright protection than metadata. See Bert P. Krages, Legal

Handbook for Photographers: The Rights and Liabilities of Making and

Selling Images 85 (4th ed. 2017) (recommending that photographers “put

the copyright management information on the face of the image, such as

in a watermark, rather than rely solely on information contained in

metadata” because the use of image editing software to clone over a

watermark is more likely to be seen as intentional than the removal of

metadata).

STEVENS V. CORELOGIC 11

we have previously observed that statutes requiring

knowledge that a future action “will” occur do not “require

knowledge in the sense of certainty as to a future act.”

United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010).

Rather, knowledge in the context of such statutes signifies “a

state of mind in which the knower is familiar with a pattern

of conduct” or “aware of an established modus operandi that

will in the future cause a person to engage in” a certain act.

Id. Applying that concept here, we hold that a plaintiff

bringing a Section 1202(b) claim must make an affirmative

showing, such as by demonstrating a past “pattern of

conduct” or “modus operandi”, that the defendant was aware

of the probable future impact of its actions.

Our conclusion about the import of the “induce[d],

enable[d], facilitate[d], or conceal[ed]” prong is supported by

the legislative history of Section 1202. That provision was

enacted to implement obligations of parties to the WIPO

Copyright Treaty (“WCT”) and the WIPO Performances and

Phonograms Treaty. See S. Rep. No. 105-190, at 5, 9 (1998).

The initial draft of the WCT provision regarding CMI

provided:

Contracting parties shall make it unlawful for

any person knowingly . . . (i) to remove or

alter any electronic rights management

information without authority; [or] (ii) to

distribute, import for distribution or

communicate to the public, without authority,

copies of works from which electronic rights

management information has been removed or

altered without authority.

12 STEVENS V. CORELOGIC

World Intellectual Property Organization [WIPO], Basic

Proposal for the Substantive Provisions of the Treaty on

Certain Questions Concerning the Protection of Literary and

Artistic Works to Be Considered by the Diplomatic

Conference, art. 14(1), WIPO Doc. CRNR/DC/4 (Aug. 30,

1996).

In response to requests from delegates that the provision

be modified to require a connection to an infringing purpose,

the provision was redrafted as follows:

Contracting Parties shall provide adequate and

effective legal remedies against any person

knowingly performing any of the following

acts knowing or, with respect to civil remedies

having reasonable grounds to know, that it

will induce, enable, facilitate or conceal an

infringement of any right covered by this

Treaty or the Berne Convention: (i) to remove

or alter any electronic rights management

information without authority; (ii) to

distribute, import for distribution, broadcast or

communicate to the public, without authority,

works or copies of works knowing that

electronic rights management information has

been removed or altered without authority.

WIPO Copyright Treaty art. 12, Dec. 20 1996 (emphasis

added). The revision thus makes clear that the “induce,

enable, facilitate or conceal” requirement is intended to limit

liability in some fashion — specifically, to instances in which

the defendant knows or has a reasonable basis to know that

the removal or alteration of CMI or the distribution of works

with CMI removed will aid infringement.

STEVENS V. CORELOGIC 13

When Congress was considering the WIPO Copyright

Treaties Implementation Act — a part of the Digital

Millennium Copyright Act (“DMCA”) that included the new

Section 1202 — the Register of Copyrights emphasized that

Section 1202’s provisions “do not apply to those who act

innocently. . . . Liability for the removal or alteration of

information requires the actor to know or have reason to

know that his acts ‘will induce, enable, facilitate or conceal’

infringement.” WIPO Copyright Treaties Implementation

Act, and Online Copyright Liability Limitation Act: Hearing

Before the H. Subcomm. on Courts and Intellectual Property

of the H. Comm. on the Judiciary, 105th Cong. 51 (1997)

(statement of Marybeth Peters, Register of Copyrights,

Copyright Office of the United States).

In short, to satisfy the knowledge requirement, a plaintiff

bringing a Section 1202(b)(1) claim must offer more than a

bare assertion that “when CMI metadata is removed,

copyright infringement plaintiffs . . . lose an important

method of identifying a photo as infringing.” Instead, the

plaintiff must provide evidence from which one can infer that

future infringement is likely, albeit not certain, to occur as a

result of the removal or alteration of CMI.

2. The Photographers Have Failed to Make the

Required Affirmative Showing

The Photographers have not offered any specific evidence

that removal of CMI metadata from their real estate

photographs will impair their policing of infringement. There

are no allegations, for example, of a “pattern of conduct” or

“modus operandi” involving policing infringement by

tracking metadata. Todd, 627 F.3d at 334. Indeed, the

evidence presented cuts against any inference that CMI

14 STEVENS V. CORELOGIC

metadata is of any practical significance to the Photographers

in policing copyright infringement of their images.

The Photographers have not, for example, averred that

they have ever used CMI metadata to prevent or detect

copyright infringement, much less how they would do so.

Vandel testified that, before this lawsuit began, he had never

“looked at any metadata information on any photograph in an

MLS system.” On the only two occasions Vandel became

aware of unauthorized use of his photographs, he learned

about the unauthorized use from the real estate agent who

commissioned the photographs. The agent saw the image

elsewhere and contacted Vandel to ask if he had permitted the

use. Stevens similarly testified that he had “[n]ever tried to

download a photo off an MLS listing . . . and look at its

properties, its metadata,” that he “d[id]n’t think you can pull

up metadata off of an MLS listing,” and that he “didn’t even

realize you could click on a picture off the Internet, rightclick

it, and get metadata off of it.” The testimony of both

Stevens and Vandel undermines any ostensible relationship

between the removal of CMI metadata and their policing of

infringement.

Nor have the Photographers brought forward any

evidence indicating that CoreLogic’s distribution of real

estate photographs ever “induce[d], enable[d], facilitate[d], or

conceal[ed]” any particular act of infringement by anyone, let

alone a pattern of such infringement likely to recur in the

future. They identify no instance in which the removal of

CMI metadata from any photograph “induce[d], enable[d],

STEVENS V. CORELOGIC 15

facilitate[d] or conceal[ed] an infringement.”6 Moreover, a

party intent on using a copyrighted photograph undetected

can itself remove any CMI metadata, precluding detection

through a search for the metadata. So on the record here, one

cannot plausibly say that removal by a third party “will”

make it easier to use a copyrighted photograph undetected,

using “will” in the predictive sense we have indicated.

Because the Photographers have not put forward any

evidence that CoreLogic knew its software carried even a

substantial risk of inducing, enabling, facilitating, or

concealing infringement, let alone a pattern or probability of

such a connection to infringement, CoreLogic is not liable for

violating 17 U.S.C. § 1202(b).

B. Discovery Rulings

The Photographers also appeal the district court’s denial

as moot of their motion to compel the production of

documents, as well as the court’s related failure to address

their Rule 56(d) request. See Fed. R. Civ. P. 56(d).7 We treat

6 In the time it has operated its MLS software, CoreLogic has only

once received a DMCA takedown notice from a real estate photographer.

17 U.S.C. § 512(c). CoreLogic promptly responded by removing the

allegedly unauthorized and infringing copies. There is no evidence that

that photographer used metadata to identify the allegedly infringing

copies, that her photograph even contained metadata, or that the

infringement identified had anything to do with removal or alteration of

metadata.

7 Federal Rule of Civil Procedure 56(d) provides: “If a nonmovant

shows by affidavit or declaration that, for specified reasons, it cannot

present facts essential to justify its opposition [to a motion for summary

judgment], the court may: (1) defer considering the motion or deny it;

16 STEVENS V. CORELOGIC

the district court’s failure specifically to address the Rule

56(d) request as an implicit denial. See Kennedy v. Applause,

Inc., 90 F.3d 1477, 1482 (9th Cir. 1996).8

Before discovery closed in September 2015, the

Photographers filed motions to compel the production of

certain documents and certain supplemental responses to

interrogatories. The district court granted in part and denied

in part those motions, ordering CoreLogic to identify in a

privilege log any responsive documents it claimed were

privileged. CoreLogic complied, serving an initial privilege

log consisting of 1,049 entries, and later a revised privilege

log.

CoreLogic filed a motion for summary judgment before

the district court ruled on the privilege claims. In addition to

a memorandum of points and authorities opposing

CoreLogic’s motion for summary judgment on the merits,

counsel for the Photographers filed a Rule 56(d) declaration

opposing summary judgment on the ground that the

Photographers planned to move to compel the production of

documents relevant to their claims that they believed not

privileged. The declaration asserted that the documents were

“likely to be directly relevant to each of the elements in

17 U.S.C. § 1202, especially the mental state requirement of

‘knowing,’” and requested that the court defer consideration

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.”

8 Kennedy characterizes as an implicit denial a failure expressly to

address a Rule 56(f) motion. Federal Rule of Civil Procedure 56(d) was,

until December 1, 2010, codified as Federal Rule of Civil Procedure 56(f).

STEVENS V. CORELOGIC 17

of the summary judgment motion or extend the time for

discovery.

The photographers subsequently moved to compel the

production of 603 e-mails and instant messages identified in

the revised privilege log. The district court, however, granted

summary judgment to CoreLogic before ruling on the motion

to compel, and then, in the summary judgment order, denied

the discovery motion as moot.

District court discovery rulings denying a motion to

compel discovery are ordinarily reviewed for abuse of

discretion. See Hallett v. Morgan, 296 F.3d 732, 751 (9th

Cir. 2002); see also Morton v. Hall, 599 F.3d 942, 945 (9th

Cir. 2010); Qualls ex rel. Qualls v. Blue Cross of Cal., Inc.,

22 F.3d 839, 844 (9th Cir. 1994). When the district court

denies a motion to compel additional discovery as moot

without considering its merits, however, the district court

does not exercise any substantive discretion about the scope

of discovery, so we review the denial of discovery de novo.

Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d

1162, 1178 (9th Cir. 2006); Garrett v. City & Cty. of San

Francisco, 818 F.2d 1515, 1518 n.3, 1519 (9th Cir. 1987).

Similarly, if a district court implicitly denies a Rule 56(d)

motion by granting summary judgment without expressly

addressing the motion, that omission constitutes a failure “to

exercise its discretion with respect to the discovery motion,”

and the denial is reviewed de novo. Garrett, 818 F.2d at

1518 n.3, 1519; see also Margolis v. Ryan, 140 F.3d 850, 853

(9th Cir. 1998); Kennedy, 90 F.3d at 1482; Qualls, 22 F.3d at

844. We have previously allowed that explanations for

denials of Rule 56(d) request “need not be explicitly stated”

when “the information sought . . . would not have shed light

18 STEVENS V. CORELOGIC

on any of the issues upon which the summary judgment

decision was based.” Qualls, 22 F.3d at 844. But when the

plaintiff requests additional discovery pursuant to Rule 56(d)

and the materials that a “motion to compel sought to elicit”

are relevant to the basis for the summary judgment ruling,

district courts should provide reasons for denying the

discovery motion and the Rule 56(d) request. See Garrett,

818 F.2d at 1519. In this case, the communications that the

Photographers sought could have “shed light” on whether, for

example, CoreLogic intentionally removed CMI or knew

CMI was removed without authorization — issues relevant to

the district court’s summary judgment ruling, although not to

our basis for affirming that ruling — and should have been

addressed.

Nonetheless, reviewing de novo the denials of the motion

to compel and of the Rule 56(d) request, we affirm. As to the

motion to compel, there is no indication that any of the

documents sought are “relevant,” as required under Rule

26(b)(1),9 to what we have held to be the dispositive issue —

whether CoreLogic knew its actions would “induce, enable,

facilitate, or conceal infringement.”10 The district court

9 Rule 26(b)(1) provides: “Unless otherwise limited by court order,

. . . [p]arties 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)(1).

10 According to the Photographers’ motion to compel, the documents

at issue fell into three categories: (1) “Product Development and

Modification” documents regarding CoreLogic’s development and

modification of the CoreLogic software at issue; (2) “Sales Pitches and

STEVENS V. CORELOGIC 19

directed that the motion to compel include “[a] statement as

to why the discovery is needed.” The sole explanation

offered for why the documents were needed was that they

would show CoreLogic knew its software removed EXIF

metadata before the litigation began, and knew its software

continues to remove IPTC metadata, even after the software

was modified to preserve EXIF metadata after this lawsuit

was filed. As the Photographers have not made any showing

that the documents listed in the privilege log are relevant to

the dispositive question — whether CoreLogic’s software

will “induce, enable, facilitate, or conceal” any act of

infringement — we affirm the denial of the motion to compel.

The denial of the Rule 56(d) request was proper for

similar reasons. Rule 56(d) provides “a device for litigants to

avoid summary judgment when they have not had sufficient

time to develop affirmative evidence.” United States v.

Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002).

A party seeking additional discovery under Rule 56(d) must

“explain what further discovery would reveal that is ‘essential

to justify [its] opposition’ to the motion[] for summary

judgment.” Program Eng’g, Inc. v. Triangle Publ’ns, Inc.,

634 F.2d 1188, 1194 (9th Cir. 1980) (first alteration in

original).

This showing cannot, of course, predict with accuracy

precisely what further discovery will reveal; the whole point

of discovery is to learn what a party does not know or,

without further information, cannot prove. See, e.g., Pac.

Internal Discussions” emails and instant messages regarding this lawsuit;

and (3) “Business Matters” emails and instant messages between nonattorneys

regarding “images incorporated into a product” and “contract

language.”

20 STEVENS V. CORELOGIC

Fisheries Inc. v. United States, 484 F.3d 1103, 1111 (9th Cir.

2007) (“[T]he purpose of discovery is to aid a party in the

preparation of its case . . . .”); Fed. R. Civ. P. 26(b) advisory

committee’s note to 1946 amendment) (“The purpose of

discovery is to allow a broad search for facts . . . or any other

matters which may aid a party in the preparation or

presentation of his case.”). But for purposes of a Rule 56(d)

request, the evidence sought must be more than “the object of

pure speculation.” California v. Campbell, 138 F.3d 772,

779–80 (9th Cir. 1998) (citation omitted). A party seeking to

delay summary judgment for further discovery must state

“what other specific evidence it hopes to discover [and] the

relevance of that evidence to its claims.” Program Eng’g,

634 F.2d at 1194 (emphasis added). In particular, “[t]he

requesting party must show [that]: (1) it has set forth in

affidavit form the specific facts it hopes to elicit from further

discovery; (2) the facts sought exist; and (3) the sought-after

facts are essential to oppose summary judgment.” Family

Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp.,

525 F.3d 822, 827 (9th Cir. 2008) (emphasis added).11

The Photographers did not comply with those

requirements here. Extensive discovery had taken place

before the district court ruled on CoreLogic’s motion for

summary judgment. The Photographers had taken

depositions of 16 CoreLogic employees, served and received

responses to 42 interrogatories, and served 114 requests for

production of documents. The additional information sought

was a general request for all allegedly privileged documents

11 Garrett, on which the Photographers rely, is not to the contrary.

Garrett emphasized that the plaintiff there “made clear the information

sought, did not seek broad additional discovery, . . . and indicated the

purpose for which this information was sought.” 818 F.2d at 1518–19.

STEVENS V. CORELOGIC 21

where no attorney was listed as an author or recipient,

coupled with a bare assertion that the “documents are likely

to be directly relevant to each of the elements in 17 U.S.C.

§ 1202, especially the mental state requirement of

‘knowing.’”

A request at that level of generality is insufficient for

Rule 56(d) purposes. The Photographers did not in their Rule

56(d) declaration enumerate any “specific facts” they hoped

to elicit from further discovery, Family Home & Fin. Ctr.,

525 F.3d at 827, or “provide any basis or factual support for

[their] assertions that further discovery would lead” to those

facts, Margolis, 140 F.3d at 854. And, as we have explained,

the only specific explanation in the record — which appeared

in the motion to compel, not in the Rule 56(d) declaration —

indicates that the information sought would not illuminate the

determinative inquiry, whether CoreLogic’s software will

“induce, enable, facilitate, or conceal an infringement.”

We therefore affirm the denial of the Photographers’

request to the district court to delay a decision on summary

judgment and permit additional discovery.

C. Motion to Retax Costs

Finally, the district court did not err in awarding fees for

corporate witnesses as costs and denying the Photographers’

motion to retax costs.

Rule 54 permits prevailing parties to recover costs other

than attorney’s fees, unless otherwise provided. Fed. R. Civ.

P. 54(d)(1). The Photographers urge that corporate directors

22 STEVENS V. CORELOGIC

or officers may not recover the witness fees set by 28 U.S.C.

§ 1821 when appearing in support of the corporate party.12

As a general rule, parties may not recover witness fees for

their own attendance. See, e.g., Barber v. Ruth, 7 F.3d 636,

646 (7th Cir. 1993), superseded on other grounds by

amendment to Federal Rules of Civil Procedure, as

recognized in Little v. Mitsubishi Motors N. Am., Inc., 514

F.3d 699, 701–02 (7th Cir. 2008). The expenses of corporate

directors or officers may, however, be taxable, even when

those individuals are testifying on behalf of a corporate party

to the suit, provided “[n]o recovery . . . [is] sought from [the

officers] individually.” See Kemart Corp. v. Printing Arts

Research Labs., Inc., 232 F.2d 897, 901 (9th Cir. 1956)

(citation omitted); 10 Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 2678 (3d ed. 1998) (“The

expenses of witnesses who are themselves parties normally

are not taxable. For example, real parties in interest or parties

suing in a representative capacity are not entitled to fees or

allowances as witnesses. The expenses of a director or

officer of a corporation who is not personally involved in the

litigation may be taxable, however, even if that individual is

testifying on behalf of the organization and the latter is a

party to the suit.”). “The allowance or disallowance of items

of costs is determined by statute, rule, order, usage, and

practice of the instant court.” Kemart, 232 F.2d at 899.

Southern District of California Local Rule 54.1(b)(4)(c)

specifically provides that “[w]itness fees for officers and

employees of a corporation” may be recoverable as costs “if

they are not parties in their individual capacities.” S.D. Cal.

Civ. R. 54.1(b)(4)(c). During the course of this litigation, the

12 Section 1821 governs the attendance fees for witnesses.

STEVENS V. CORELOGIC 23

Photographers took one Rule 30(b)(6) deposition of

CoreLogic as a corporate entity, at which nine employees

designated by CoreLogic testified,13 and seven depositions of

CoreLogic officers or managing agents. Thus, sixteen

CoreLogic employees testified and were paid $40 per day, in

accordance with 28 U.S.C. § 1821, for a total of $640 in

witness fees. The district court did not abuse its discretion in

relying upon Local Rule 54.1 to allow and tax as costs the

witness fees for CoreLogic’s corporate officers.



* * *



13 A Rule 30(b)(6) deposition is “treated as a single deposition even

though more than one person may be designated to testify.” Fed. R. Civ.

P. 30(a) advisory committee’s note to 1993 amendment.

AFFIRMED.