Glass Egg Digital Media v. Gameloft, Inc. et al
Filing
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Discovery Order re 165 MOTION for Discovery, 171 Brief, 172 Response ( Non Motion ). (rmilc2, COURT STAFF) (Filed on 5/10/2019)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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EUREKA DIVISION
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GLASS EGG DIGITAL MEDIA,
Plaintiff,
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ORDER
v.
Re: Dkt. Nos. 165, 171, 172
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United States District Court
Northern District of California
Case No. 17-cv-04165-MMC (RMI)
GAMELOFT, INC., et al.,
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Defendants.
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On February 12, 2018, Judge Chesney entered an order (dkt. 94) granting Plaintiff leave to
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take limited jurisdictional discovery as to “the size of Gameloft SE’s business in California and []
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the identity of Gameloft entity/entities that operate(s) the website accessible to website users
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within California.” Recently, the Parties attempted to present a discovery dispute, arising under
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Judge Chesney’s Order, by way of a jointly-submitted letter brief (dkt. 165). Prior to the filing of
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the letter brief, Plaintiff propounded a large number of discovery requests, and in the course of the
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Parties’ subsequent discussions, differences began to emerge as to what might constitute a
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reasonable interpretation of some of the terms of Judge Chesney’s written order. The Parties
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appear to have become so engulfed in their interpretive dispute that the specific discovery requests
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at issue were never enumerated in the letter brief by either party. The portion of the April 4, 2019,
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letter brief authored by Plaintiff begins with a series of statements that appear to complain, in
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general terms, about “negative character insinuations” and “misrepresentation of the record” –
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and, while Plaintiff does eventually get around to mentioning that “[a]fter failed negotiations, this
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dispute is now ripe,” Plaintiff’s portion of the letter never enumerates what specific items of
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discovery, to which Plaintiff can argue that it is entitled, have been objected-to or withheld.
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Instead, Plaintiff’s portion of the letter – essentially a motion to compel discovery – only
argues in general terms about what should have been, or perhaps what should be, the overall scope
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of jurisdictional discovery under Mavrix v. Brand Technologies, 647 F.3d 1218 (9th Cir. 2011) (an
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appeal that did not involve any issues regarding discovery). In short, without specifying what
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items of discovery have been requested and rejected, Plaintiff’s portion of the letter only
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communicated general arguments as to why Plaintiff should be entitled to whatever has been
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requested. See Joint Letter Br. (dkt. 165) at 4-6. Then, adding a measure of confusion to the
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existing lack of clarity, the portion of the letter authored by GLSE provided that “Plaintiff [had]
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served GLSE with 410 written discovery requests . . . and a Rule 30(b)(6) deposition notice on 25
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topics,” and that that GLSE had “objected to many of the discovery requests . . . [and] that it had
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United States District Court
Northern District of California
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located and would produce certain [other] documents subject to a Stipulated Protective Order.” Id.
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at 2. However, it remained unclear which, if any, items remained the subject of this dispute as the
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remainder of GLSE’s portion of the joint letter was focused on addressing various general points
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raised by Plaintiff – none of which shed any light on exactly what items of discovery are in
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dispute and for what specific reason.
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On April 15, 2019, the court ordered (dkt. 169) the Parties to remedy this defect and to file
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individual briefs enumerating the specific items in dispute. Plaintiff’s brief was almost entirely
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nonresponsive to the court’s order – instead Plaintiff undertook to recast the entire matter as
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involving three “issues to be decided: (1) What is the proper test for specific jurisdiction and how
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does this impact the scope of jurisdictional discovery? (2) Guided by the proper test for specific
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jurisdiction, what is the permissible scope of jurisdictional discovery to establish specific
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jurisdiction as allowed by Judge Chesney? (3) Can limitations on jurisdictional discovery that
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overlap with claims and defenses act as a bar to evidence that is also related to claims and
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defenses?” Pl.’s Br. (dkt. 171) at 4. Thereafter, having formulated three questions of its own
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design, Plaintiff proceeds to argue that these questions should be resolved in its favor and that for
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those reasons, the voluminous list of propounded discovery requests (filed as a chart constituting a
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20-page Appendix) should be categorically allowed by this court. Id. at 5-19; see also App’x (dkt.
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171-19) at 1-20. Nowhere to be found in Plaintiff’s brief, however, is any mention of which of the
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global list of several hundred items found in Plaintiff’s Appendix have been resolved, have
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already been produced, were unable to be located, or (as to requests for admission) have already
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been admitted or denied. In essence, Plaintiff has filed a several-hundred-item list of discovery
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requests, expecting the court to ferret out which ones remain the subjects of an active dispute, and
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then to accept (or reject) Plaintiff’s categorical arguments and to render one or more categorical
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holdings.
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Defendant GLSE’s brief, while slightly more responsive to the court’s order for an
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enumeration, still appears to have followed a similar path – namely, a thematic rather than
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consecutive or numeric presentation of the subjects of the discovery dispute, attended by a 695page attachment, in the middle of which are GLSE’s original responses to Plaintiff’s several-
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United States District Court
Northern District of California
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hundred requested items. See Def.’s Br. (dkt. 172), see also Exh. (dkt. 172-1) at 104-555.
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Defendant GLSE’s overarching argument is that many of Plaintiff’s discovery demands exceed the
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scope of Judge Chesney’s order, such as those falling under topics relating to the size of GLSE’s
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business in California, its sales and revenue, as well as a number of other categorizations. Def.’s
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Br. (dkt. 172) at 6-22. Inserted into the middle of its arguments about why certain categories of
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Plaintiff’s discovery requests fall outside the scope of Judge Chesney’s order, Defendant GLSE
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also notes that “Plaintiff fails to acknowledge that certain discovery requests are moot.” Id. at 11-
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12, 13-14 (listing 19 individual requests for production); see also id. at 21 (listing 1 individual
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request for production). GLSE also noted that it had responded to two requests for admission (id.
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at 16, 19), that it had been unable to locate any documents that would be responsive to another 12
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individual requests for production (id. at 16-18), and that it would produce documents that are
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responsive to another 3 individual requests for production (id. at 20).
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Thus, the combination of the briefing filed by Plaintiff and by Defendant GLSE leaves the
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court with the task of having to parse through thematically-arranged briefs to determine which
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requests for discovery may no longer be the subject of an active dispute, and then to compare the
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numerically-arranged discovery demands and responses found in the Parties’ attachments and
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exhibits to briefs that are organized differently in order to fish for each Party’s argument as to each
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item of requested and rejected discovery.
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Accordingly, the Parties are ORDERED to meet and confer in person forthwith in a good
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faith effort to resolve, or at least refine, the issues currently in dispute. The Parties are FURTHER
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ORDERED to jointly file a letter brief, on or before Friday, May 24, 2019. The letter brief shall
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strictly adhere to the following form. First, Defendant GLSE will produce a numbered list of any
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requested discovery items that are moot, that were unable to be found, that do not exist, or that
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have been or will be produced – each item of which shall be coupled with a 1-sentence
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explanation to that effect. Second, Plaintiff will follow with a numbered list of any other requested
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discovery items coupled with a 1-sentence explanation for why such discovery was encompassed
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by Judge Chesney’s order. Third, Defendant GLSE will follow with a matching numbered list
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where each rejected item is coupled with a 1-sentence explanation for why the request was not
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United States District Court
Northern District of California
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encompassed by Judge Chesney’s order.
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IT IS SO ORDERED.
Dated: May 10, 2019
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ROBERT M. ILLMAN
United States Magistrate Judge
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