On Thu, Nov 05, 1998, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> The other side serves a set of requests for document production on
> you. One of the individual requests demands that you copy a software
> manual. That manual has a valid copyright and you don't own it.
> *Can* you object (assume there are no other grounds for objecting)
> to the request because to comply would require infringing the software
> manual copyright? *Must* you object? Is copying the manual fair use?
Strictly speaking, the requesting party should only seek the production of original documents for inspection. Although there have been cases where the producing party has been required to share the costs of copying, usually it's the requesting party who pays (under the Federal Rules, at least). The issue becomes more complicated, I suppose, where there are state laws (as in California) which allow the requesting party to direct the producing party to deliver originals to a registered copy company (interesting pre-emption issue there ...), but even in that case, it's usually the requesting party who pays and who is accordingly responsible for doing the copying. Of course, in practice, the producing party often produces photocopies and not the originals and the requesting party may not object to this. But I'm not sure the requesting party is permitted to insist on copies being made.
Another way of looking at the question: let's say the requesting party _was_ allowed to request copies. Under the Federal Rules, relevant and nonprivileged documents must be produced if they're in the party's "possession, custody or control" on the date specified in the document request. FRCP 34(a). While the _original_ manual would be in the producing party's possession and custody (and should therefore be produced if requested), it could be argued that it's not under its "control" for the purposes of making _copies_ thereof. Under this circumstance, the producing party would arguably be unable to comply with the production request.
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