Shopify Inc., has responded to the five publisher plaintiffs’ second motion to compel discovery in the suit against the e-commerce solution company for allegedly permitting customers to illegally hawk pirated copies of textbooks. The opposition says that the plaintiffs’ request “needlessly harass[es] and significantly increase[s] the burden on Shopify.”
The case dates to early December 2021 when plaintiffs, including Macmillan Learning, McGraw Hill LLC, and Cengage Learning Inc. filed suit against Shopify, supposedly as a last resort after having sent it requests to stop servicing hundreds of pirate websites. The complaint states claims for secondary copyright and trademark infringement and seeks “to hold Shopify responsible for facilitating, and profiting from, this infringement.”
Shopify answered the complaint in late January and since, the parties have engaged in discovery. According to the plaintiffs’ second motion to compel, the parties have reached an impasse over four categories of records concerning Shopify’s dealings with “pirate merchants.” These include infringement notices Shopify sent pirate merchants, records showing which Shopify services the sellers actually utilized, and how the company responded to violations of its policies.
Shopify opposes on grounds that the plaintiffs’ request concerning its response to notices of infringement is premature. “The parties were deep in conferral on how to accomplish this, when Plaintiffs jumped the gun, filing their motion despite Shopify’s good-faith efforts to produce essentially everything Plaintiffs have asked for within the limitations period,” the opposition says. By contrast, Shopify assures the court that it “continues, in good faith, to identify and produce this information.”
The opposition next says that the requests overreach to the extent that they seek pre-limitations information, including records of merchants that are not accused of infringement. Shopify further explains that to whatever degree the documents sought are marginally relevant, their probative value is outweighed by the burden of reviewing two more years of material, which must be retrieved from an archival repository, and would increase the temporal scope of Shopify’s document review by 60%.
As such, Shopify asks the court to deny the plaintiffs’ motion in its entirety. The plaintiffs are represented by Oppenheim + Zebrak LLP and Shopify by Latham & Watkins LLP.
