Psychic Readers Network, Inc. v. Take-Two Interactive Software, Inc. et al

Filing 74

ORDER granting in part and denying in part 66 Defendants' Motion to Compel. Signed by Magistrate Judge Barry S. Seltzer on 8/10/2018. See attached document for full details. (pb00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-61492-CIV-DIMITROULEAS/SELTZER

PSYCHIC READERS NETWORK, INC.,
Plaintiff/Counterdefendant,
vs.
TAKE-TWO INTERACTIVE SOFTWARE,
INC. and ROCKSTAR GAMES, INC.,
Defendants/Counterclaimants,
and DOES 1-10,
Defendants.
________________________________/
ORDER ON DEFENDANT’S MOTION TO COMPEL
THIS CAUSE has come before the Court upon the Motion to Compel Production of
Documents [DE 66] filed by Defendants/Counterclaimants Take-Two Interactive Software,
Inc. and Rockstar Games, Inc. (collectively “Defendants”). This is an action for copyright
infringement and unjust enrichment in which Plaintiff seeks damages and injunctive relief
for Defendants’ alleged unauthorized use of Plaintiff’s character “Miss Cleo” for its video
game Grand Theft Auto: Vice City. Defendants seek an order compelling Plaintiff, Psychic
Readers Network, Inc. (“Plaintiff”), to produce certain documents requested in their (April
20, 2018) First Request for Production of Documents. Plaintiff had objected to the
requests at issue on grounds of relevancy and because the requests are “vague,
ambiguous, and overbroad.”

Rule 26(b)(1), Federal Rules of Civil Procedure provides:
Scope in General. Unless otherwise limited by court order, the
scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access
to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its
likely benefit. Information within this scope of discovery need
not be admissible in evidence to be discoverable.
The parties have attempted to narrow the issues through e-mail communications and a
meet and confer held on July 2, 2018 [DE 66], but they were unable to reach agreement
on the requests raised in Defendants’ motion. The motion addresses two categories of
documents: (1) records pertaining to investigations into untruthful or fraudulent statements
made by Plaintiff concerning its psychic services (Request No. 28) and (2) financial and
other records concerning damages (Request Nos. 44, 45, 46, and 56).
With respect to Request No. 28,1 Plaintiff argues that the request is not relevant to
the issues in this litigation, but further states that there are no further documents to
produce. Defendants argue that this response is “evasive” and ask for Court assistance
in resolving the matter. The Court has reviewed the pleadings and Request No. 28 and
finds that the information requested is both relevant and proportional to the needs of the
case, more particularly, to Defendants’ defenses and counterclaims. Nevertheless, the
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Request No. 28 sought “All DOCUMENTS CONCERNING allegations against or
investigations into the PRN ENTITIES for being untruthful or for fraudulent statements,
including without limitation allegations CONCERNING the ASSERTED WORKS, psychic
services advertised by the PRN ENTITIES, or other representations to the public.” These
investigations included Federal Trade Commission and Florida Attorney General
investigations into Plaintiff’s commercials featuring a psychic known as “Miss Cleo.”
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Court accepts as true the representation by Plaintiff’s counsel, an officer of the Court, that
no additional documents exist. Accordingly, the Motion to Compel directed at Request No.
28 will be denied as moot.
With respect to the Requests (Nos. 44, 45, 46, and 56) relating to damages,2 the
parties dispute the relevant measure of damages in a copyright case and, therefore,
dispute the relevance of the documents requested by Defendants. Plaintiff contends that
the sole measure of damages is the gross revenue of the infringing Defendants, less any
proof of costs that Defendants produce. Conversely, Defendants argue that in copyright
cases the courts consider a variety of factors, including the revenues lost by the Plaintiff
and the value of the copyright. This is a rare instance when both parties are correct:
Assuming infringement is proven, the plaintiff may recover his
or her “actual damages and any additional profits of the
infringer . . . that are attributable to the infringement and are
not taken into account in computing the actual damages.” 17
U.S.C. § 504(a)(1) & (b). To prove actual damages, the
plaintiff must “demonstrate a ‘causal connection’ between the
defendant’s infringement and an injury to the market value of
the plaintiff’s copyrighted work at the time of infringement.”
Montgomery v. Noga, 168 F.3d 1282, 1294 (11th Cir.1999).
This injury is usually “measured by the revenue that the
plaintiff lost as a result of the infringement.” Id. at 1295 n. 19.

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Request No. 44 sought “DOCUMENTS sufficient to show PRN’s revenues and
expenses (both gross and net) from 1998 to present, including without limitation revenues
and expenses attributable to the ASSERTED WORKS or to the alleged character, ‘MISS
CLEO.’” Request No. 45 sought “All DOCUMENTS CONCERNING any alleged damage
suffered by the PRN ENTITIES as a result of the ACCUSED WORK, including without
limitation any potential revenues lost by the PRN ENTITIES as a result of the ACCUSED
WORK.” Request No. 46 sought “All DOCUMENTS CONCERNING any alleged
irreparable harm suffered by the PRN ENTITIES as the result of the ACCUSED WORK.”
And, finally, Request No. 56 sought “All DOCUMENTS CONCERNING the allegation in
Paragraph 46 of the COMPLAINT that PRN ‘sustained and will continue to sustain
substantial, immediate and irreparable injury for which there is no adequate remedy at
law.” [DE 66].
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With respect to profits, the plaintiff must show a causal
relationship between the infringement and profits, and must
also present proof of the infringer’s gross revenue. See 17
U.S.C. § 504(b); Montgomery, 168 F.3d at 1296. If the plaintiff
meets its burden, the infringer must then prove “his or her
deductible expenses and the elements of profit attributable to
factors other than the copyrighted work.” Id.
Home Design Servs., Inc. v. Turner Heritage Homes, Inc., 101 F. Supp. 3d 1201, 1217
(N.D. Fla. 2015), aff'd, 825 F.3d 1314 (11th Cir. 2016). Because the complete measure
of damages in a copyright case includes both Plaintiff’s actual damages and Defendants’
profits, the financial information requested by Defendants is relevant and proportional to
the needs of the case. Therefore, the Motion will be granted as to Request Nos. 44 and
45.
Request Nos. 46 and 56 pertain to Plaintiff’s alleged irreparable injuries for which
there is no adequate remedy at law. Plaintiff argues that the requests are not relevant
because it has not sought preliminary injunctive relief. Nevertheless, Plaintiff seeks
permanent injunctive relief [DE 1] and, therefore, documents concerning irreparable injury
sustained by Plaintiff are both relevant and proportional to the needs of the case. As such,
the Motion will be granted as to Request Nos. 46 and 56.
Accordingly, for the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that the Motion to Compel Production of Documents
[DE 66] filed by Defendants/Counterclaimants Take-Two Interactive Software, Inc. and
Rockstar Games, Inc. is GRANTED IN PART and DENIED IN PART. The Motion is
DENIED AS MOOT with respect to Request No. 28, but is GRANTED as to Request Nos.

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44, 45, 46, and 56. Plaintiff shall produce the responsive documents within 14 days of the
date of this Order.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 10th day of
August 2018.

Copies furnished counsel via CM/ECF

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