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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules only with a representation that the party made a reasonable inquiry in attempting to answer the request, but that the information it knows or can readily obtain is insufficient to enable it to admit or deny the information in the request.
While this rule is modeled after the FRCP,130 the Office proposes a few important modifications. First, the number of requests for admissions without leave of the CCB is limited to ten, and the rule makes explicit that compound requests are barred. In addition, in contrast to the FRCP, if a party fails to timely respond to a request for admission, the matter asserted is not automatically admitted. However, the CCB in its discretion may deem it admitted pursuant to its power to apply adverse inferences with respect to discovery violations under 17 U.S.C.
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The Office welcomes public input into this proposed provision, specifically whether there should be any further limitations on the subject matter of the requests for admission and whether the proposed rule strikes the proper balance in adapting the FRCP for pro se parties.

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4. Production of Documents Several commenters suggested that the regulations pertaining to the production of documents be drafted so to avoid the production of large amounts of electronically stored information ESI,131 as this is a common feature of federal court litigation that significantly increases the costs and burdens on the parties during discovery. These commenters suggested that the regulations make clear that ESI
productions must be limited to what is available through searches that a layperson can reasonably handle and should not require the retention of a discovery vendor.132 One comment also suggested that the regulations prohibit document dumps of large amounts of irrelevant or duplicative materials.133
The Office agrees with these suggestions. Under the proposed rule, the CCB will provide standard document production requests that will be available on its website. As with the standard interrogatories, these document requests will always involve certain common categoriessuch as 130 Fed.

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Alliance, et al. Initial NOI
Comments at 2526; MPA, RIAA & SIIA Initial NOI
Comments at 1314.
132 Copyright Alliance, et al. Initial NOI
Comments at 2526; MPA, RIAA & SIIA Initial NOI
Comments at 1314.
133 Copyright Alliance, et al. Initial NOI
Comments at 26.
131 Copyright
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documents the party is likely to use in support of its claims or defenses, documents the party is aware of which conflict with its claims or defenses, and documents related to damagesas well as document requests specific to the type of claim at issue. A party asserting infringement or responding to a noninfringement claim will be required to produce a copy of the allegedly infringed work and allegedly infringing material if applicable and available to the claimant, agreements related to the works at issue, ownership of the allegedly infringed work, pertinent documents where the allegedly infringed work is a derivative work, documents related to the allegedly infringing work, and documents relating to attempts to cause the alleged infringement to be ceased or mitigated.
A party responding to an infringement claim or asserting a non-infringement claim will be required to produce a copy of the allegedly infringing material, agreements related to the works at issue, documents related to the creation of the allegedly infringing material, documents pertaining to the allegedly infringed material, and documents relating to any revenues and profits directly attributable to the allegedly infringing material. With respect to section 512f misrepresentation claims, parties will be required to produce a copy of the notification or counter notification at issue, communications with the relevant internet service provider or others related to the notification or counter notification, and documents pertaining to the truth or falsity of any representations made in the notification or counter notification.
In responding to document requests, each party must conduct a reasonable search for responsive documents within its possession or under its control, including in the files of its agents, employees, representatives, or others acting on its behalf. Responsive documents may include ESI. In line with commenters suggestions, however, a reasonable search of ESI shall not exceed manual searches that are easily accomplished by a layperson and need not include searches that require the assistance of third parties, such as a document vendor. Responses to document requests that include large amounts of irrelevant or duplicative material will constitute bad-faith conduct. Under the proposed rule, a party has an obligation to disclose the existence of any responsive materials that are no longer in its possession and explain why they are no longer in its possession. A party also has an obligation to supplement its production
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as soon as practicable if it later finds responsive documents.
The Office solicits comments as to this proposed rule. The Office is specifically interested in any comments related to whether the proposed rule will sufficiently limit the scope and size of document productions in CCB
proceedings. The Office welcomes any suggestions pertaining to mechanisms for further limiting the scope of productions, as well as any other categories of relevant documents that should be included in the standard document production requests.
5. Disputes and Sanctions The proposed rule requires parties to attempt to resolve discovery disputes in good faith without involving the CCB, a principle found in the FRCP.134 Parties must meet and confer, at least through a phone call, to attempt to reach a resolution prior to raising a discovery dispute with the CCB. If such an attempt fails, a party seeking discovery may file a short letter describing the dispute and seeking a conference with the CCB, and an opposing party will have an opportunity to file a response prior to the conference. The CCB may then hold a conference and issue an order resolving the dispute either during or following the conference and, if applicable, set a deadline for compliance.
If the party fails to timely comply, the party seeking discovery may send a notice to the allegedly noncompliant party that provides an additional ten days to comply. If the allegedly noncompliant party still fails to comply, the party seeking discovery may request that the CCB impose sanctions. This request may be no longer than ten pages, plus supporting documents, and the opposing party will have an opportunity to file a response. The CCB may hold a conference to address the request for sanctions and will impose sanctions in its sole discretion and upon good cause shown where the opposing party is found to be noncompliant with the CCBs discovery order. The sanctions imposed by the CCB may include an adverse inference against the noncompliant party regarding the facts directly related to the disputed discovery. The proposed rule provides that the CCB may also consider imposing sanctions when awarding attorneys fees and costs during a final determination.
The Office is interested in comments concerning whether this proposed rule strikes the proper balance between the interests and rights of the respective 134 Fed.

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