Demartini et al v. Microsoft Corporation

Filing 300

ORDER RE: JOINT DISCOVERY LETTER BRIEF 299 . Signed by Judge Jacqueline Scott Corley on December 7, 2023. (ahm, COURT STAFF) (Filed on 12/7/2023)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANTE DEMARTINI, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 3:22-cv-08991-JSC
ORDER RE: JOINT DISCOVERY
LETTER BRIEF

v.
MICROSOFT CORPORATION,

Re: Dkt. No. 299

Defendant.

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Pending before the Court is a joint discovery letter brief regarding Microsoft’s responses to
written discovery requests. (Dkt. No. 299.) Plaintiffs seek to compel Microsoft to respond to Request
for Production No. 16 and Requests for Admission Nos. 6 and 7. Oral argument is not required to
resolve this dispute. See Civ. L.R. 7-1(b). Plaintiffs’ request is denied as untimely and on the merits.
First, Plaintiffs request is untimely. Fact discovery closed November 20, 2023. (Dkt. No.
270.) Under Civil Local Rule 37-3, any discovery-related motions are due seven days after the cut-off;
here, November 27. Plaintiffs filed the now pending letter brief December 5—over a week after the
deadline. That the letter brief renews a request to compel discovery the Court previously denied
without prejudice to renewal following meet and confer is of no moment. (Dkt. No. 294.) The Court
issued the order denying the earlier filed letter brief on November 15—Plaintiffs had 12 days to renew
the request and Plaintiffs concede Microsoft provided them with their responsive portion of the letter
brief on November 21. Again, before the deadline to file discovery motions. To be sure, the
Thanksgiving holiday fell within this window, but Plaintiffs did not request the Court extend the
deadline to bring motions to compel on this or any other basis. Instead, Plaintiffs sat on the letter brief
until after the deadline to bring motions to compel, and then, on November 29, returned it to
Microsoft. And then it was not filed with the Court until December 5. Plaintiffs’ request is untimely.

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claim or defense in this action. Plaintiffs seek responses to Requests for Admission Nos. 6 and 7

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which seek an admission (1) Microsoft and Activision compete in the development, publishing, and

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sale of video games, and (2) Microsoft and Activision compete in the development, publishing, and

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sale of AAA video games. (Dkt. No. 299-2 at 3.) These requests are not tethered to Plaintiffs’

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remaining vertical merger claim.

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United States District Court
Northern District of California

Second, as to the merits, Plaintiffs have not shown how the discovery sought is relevant to a

Plaintiffs also request a response to Request for Production of Documents No. 16 seeking

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communications related to making video games exclusive. The Court previously denied this request

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for lack of meet and confer and because Plaintiffs had made no specific argument as what they were

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seeking. (Dkt. No. 294 at 2.) In their renewed request, Plaintiffs limit the request to post-February

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2023 communications, but have not otherwise narrowed their request; tellingly, they do not dispute

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Microsoft’s assertion that Plaintiffs did not ask about exclusivity discussions during their depositions.

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(Dkt. No. 299 at 6.) Microsoft argues the request is disproportionate to the needs of the case because

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without any further narrowing the request would require Microsoft to search through a large volume of

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documents looking for communications by or to the six executives regarding unspecified exclusivity

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decisions. Given Plaintiffs’ failure to make a specific showing as to what is sought and pursue the

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discovery first through less burdensome means, the Court agrees the request is not proportional to the

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needs of the case. See Fed. R. Civ. P. 26(b)(1).

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This Order disposes of Docket No. 299.

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IT IS SO ORDERED.

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Dated: December 7, 2023

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JACQUELINE SCOTT CORLEY
United States District Judge

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