Atari Interactive, Inc. v. Redbubble, Inc.

Filing 213

ORDER GRANTING MOTION TO EXCLUDE LIVE GAMEPLAY DEMONSTRATIONS AND NON-PRODUCED GAMEPLAY VIDEOS by Judge Jon S. Tigar granting 209 Motion. (Entered by Judge Jon S. Tigar) (Filed on 10/24/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ATARI INTERACTIVE, INC.,

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Plaintiff,

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v.

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REDBUBBLE, INC.,

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Defendant.

United States District Court
Northern District of California

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Case No. 18-cv-03451-JST
ORDER GRANTING MOTION TO
EXCLUDE LIVE GAMEPLAY
DEMONSTRATIONS AND NONPRODUCED GAMEPLAY VIDEOS
Re: ECF No. 209

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This is a trademark and copyright infringement case. Plaintiff Atari Interactive, Inc.

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(“Atari”) alleges, among other things, that Defendant Redbubble, Inc. (“Redbubble”) infringed the

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copyright in the graphics and artwork of certain Atari video games. Atari recently announced its

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intention to use an Atari 2600 console at trial to perform a live gameplay demonstration of

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unspecified video games or, alternatively, to create recorded videos of gameplay which Atari

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would play during trial. Redbubble now moves to exclude such live demonstration or videos

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because none of the games or videos were produced in discovery or at any other time. ECF No.

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209. Because Atari’s failure to produce the videos and games violated Atari’s discovery

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obligations, its failure was not substantially justified, and use of these materials would unfairly

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prejudice Redbubble, the Court will grant the motion.1
Atari included on its trial exhibit list an “Atari 2600 Console, Joystick, and Games,” ECF

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No. 163-6 at 14, which Redbubble originally moved to exclude. Atari responded in opposition

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that it had only recently come into possession of the console. ECF No. 186 at 3. It also argued

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that “other photos and depictions of Atari 2600s were produced, with the console being Atari’s

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The Court has determined that this motion is suitable for disposition without oral argument. See
Civ. L.R. 7-1(b).

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most iconic product . . . . There is nothing prejudicial about introducing the actual console as an

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exhibit at trial.” Id. (citation and parenthetical omitted). After reviewing this opposition,

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Redbubble withdrew its motion as to the console exhibit. ECF No. 209 at 7. It now contends that

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“Atari’s statements conveyed that Atari intended to use the console to show the appearance of the

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console, as would ‘photos and depictions of Atari 2600s,’ rather than powering it on to perform a

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live gameplay demonstration” and that “Atari’s [prior] opposition made no reference to games at

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all.” Id. Redbubble does not object to the display of the game console to the jury as a physical

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object. It does object, however, to the live demonstration of the video games the console is

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capable of playing.

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Redbubble does not dispute that it produced neither the physical Atari 2600 Console nor

United States District Court
Northern District of California

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any gameplay videos during fact discovery, even though they were responsive to Redbubble’s

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requests for production. It also does not dispute that it failed to disclose gameplay videos or a

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planned live gameplay demonstration on its trial exhibit list. It argues, nonetheless, that it

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disclosed its intent to use the Atari 2600 by disclosing photographs of the Atari 2600 in discovery.

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ECF No. 211 at 3. It further contends that “the console was mentioned throughout the depositions

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of both Casandra Brown (Atari’s Director of Licensing) and Fred Chesnais (Atari’s ex-CEO),

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including by Redbubble’s counsel. All involved knew that the Atari 2600 console was an iconic

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product sold by Atari, and the game system on which many of the iconic games could be played.”

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ECF No. 211 at 3 (citations and parentheticals omitted).

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Federal Rule of Civil Procedure 26(a) requires parties to disclose the witnesses “that the

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disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). Rule

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26(e) requires parties to supplement their disclosures “in a timely manner if the party learns that in

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some material respect the disclosure or response is incomplete or incorrect, and if the additional or

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corrective information has not otherwise been made known to the other parties during the

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discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). “If a party fails to provide

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information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use

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that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the

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failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
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In addition to, or instead of, that sanction, the court may also impose any of the other

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appropriate sanctions provided for in Rule 37. Fed. R. Civ. P. 37(c)(1)(C). “The party facing

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sanctions bears the burden of proving that its failure to disclose the required information was

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substantially justified or is harmless.” R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1246

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(9th Cir. 2012).
The Court finds that neither the disclosure of photographs of the Atari 2600 nor the late

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disclosure of the physical console satisfied Atari’s obligation to disclose gameplay videos or

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Atari’s intent to use the console for purposes of live demonstration at trial. Nor did the reference

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by certain witnesses to the physical console constitute sufficient “additional or corrective
information . . . made known to the other parties during the discovery process or in writing.” Fed.

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United States District Court
Northern District of California

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R. Civ. P. 26(e)(1)(A).
Atari argues that Redbubble should have propounded a request for inspection of the Atari

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2600 console when Atari produced photographs of it. ECF No. 211 at 3. This argument is

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unpersuasive. Atari has represented that it only came into possession of the physical console

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recently. If this representation was accurate, then at the time it produced Atari 2600 photographs

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to Redbubble it had no physical console to inspect. It also is unclear how physical inspection of

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the console pursuant to Rule 34 of the Federal Rules of Civil Procedure would have put

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Redbubble on sufficient notice of the videos or gameplay Atari intends to show the jury.

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The Court further finds that Atari’s failure to produce these materials previously was

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neither substantially justified nor harmless. The parties are literally on the eve of trial – jury

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selection will occur tomorrow – and there is no reason this evidence could not have been produced

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earlier. As the Court observed in connection with an earlier motion to exclude, “[b]ecause Atari

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created the evidence, the timing of its creation was solely within Atari’s control. It could have

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created and produced it within the discovery cut-off period. Because it did not do so, the evidence

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must be excluded.” ECF No. 197 at 13-14.

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So it is here. Redbubble’s motion to exclude any live demonstrations of video games or
recorded videos of gameplay is granted.
IT IS SO ORDERED.
Dated: October 24, 2021
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JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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