Bethesda Softworks LLC v. Interplay Entertainment Corporation
Filing
111
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 4/25/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
BETHESDA SOFTWORKS LLC
:
v.
:
Civil Action No. DKC 09-2357
:
INTERPLAY ENTERTAINMENT
CORPORATION
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
trademark action is a motion for sanctions filed by Plaintiff
Bethesda Softworks LLC (“Bethesda Softworks”).
(ECF No. 106).
Because the issues have been fully briefed and no hearing is
necessary, the court now rules.
See Local Rule 105.6.
For the
reasons that follow, Bethesda Softworks’ motion will be granted
in part and denied in part.
I.
Background
Some familiarity with the underlying facts of this case is
presumed.
In brief, the principal issue is the ownership of
certain intellectual property rights associated with “Fallout,”
a popular series of computer and console role-playing games.
Plaintiff
these
signed
Bethesda
Softworks
Fallout-related
with
rights
Defendant
(“Interplay”) in 2007.
maintains
by
virtue
Interplay
that
of
it
two
now
owns
agreements
Entertainment
all
it
Corporation
For its part, Interplay insists that it
retained certain rights to the Fallout games – rights that it
continues to hold today.
The
case
began
on
September
8,
2009,
when
Softworks filed a complaint against Interplay.
(ECF No. 1).
Soon thereafter, discovery problems began to arise.
2009,
for
order.
filed,
instance,
the
(ECF No. 30).
the
governing
parties
filed
a
Bethesda
In November
proposed
protective
The day after that proposed order was
court
instructed
documents
filed
the
under
parties
seal.
to
(ECF
parties failed to do so for several months.
add
a
No.
provision
33).
The
Instead, they chose
to make “productions of thousands of pages” under the unapproved
protective order until August 9, 2010, when they finally moved
for entry of a protective order.
On
February
25,
2010,
(ECF No. 76).
before
an
answer
to
the
initial
complaint was filed, the parties submitted a proposed scheduling
order.
(ECF No. 62).
The court did not approve that scheduling
order, but the parties proceeded with discovery.1
A few months
after the parties began discovery, on August 2, 2010, Bethesda
Softworks
filed
a
motion
to
compel
responses
to
interrogatories and at least five document requests.
70-1).
The
court
granted
much
1
of
the
motion
to
thirteen
(ECF No.
compel
on
Bethesda Softworks later moved to withdraw the order.
(ECF NO. 78).
2
January 13, 2011 and instructed Interplay to comply with that
order no later than February 7, 2011.
(ECF Nos. 97, 98).
During a hearing on January 14, 2011, the court encouraged
the parties to work together to resolve the remaining discovery
issues and set a schedule.
Unfortunately, the parties have been
unable to agree on much of anything.
In a joint status report
dated March 1, 2011, the parties reported that they could not
agree on a schedule, could not agree on whether Interplay had
sufficiently complied with the decision on the motion to compel,
and could not even agree on whether they had met to discuss a
scheduling order for the remainder of discovery.
(ECF No. 107).
Instead of resolving these disputes through cooperation, on
February
28,
2011,
Bethesda
Softworks
filed
a
motion
for
sanctions, alleging that Interplay failed to comply with the
court’s prior rulings on discovery.
(ECF No. 106).
The motion
seeks, among other things, the exceptional sanction of default
judgment.
Interplay opposed on March 17 and responded in kind,
accusing Bethesda Softworks of acting in bad faith and labeling
the
motion
dishonest.”
4.
II.
for
sanctions
(ECF No. 108).
“legally
frivolous
and
factually
Bethesda Softworks replied on April
(ECF No. 109).
Analysis
Bethesda Softworks moves for sanctions pursuant to Federal
Rule
of
Civil
Procedure
37(b)(2)(A).
3
That
rule
permits
a
district court to impose certain punitive measures, up to and
including
order.
dismissal,
on
Fed.R.Civ.P.
any
party
37(b)(2)(A).
who
disobeys
“Rule
a
37(b)(2)
discovery
gives
the
court a broad discretion to make whatever disposition is just in
the light of the facts of the particular case.”
8B Charles Alan
Wright, et al., Federal Practice & Procedure § 2289 (3d ed.
2010); see also Camper v. Home Quality Mgmt. Inc., 200 F.R.D.
516, 518 (D.Md. 2000) (“Federal district courts possess great
discretion to sanction parties for failure to obey discovery
orders.”).
Emphasizing this broad discretion, Bethesda Softworks asks
the
court
to
sanctions”:
impose
“the
most
severe
in
the
spectrum
of
default judgment in its favor and dismissal of all
of Interplay’s counterclaims.
Nat’l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S. 639, 643 (1976).
But “[w]hile the
imposition of sanctions under Rule 37(b) lies within the trial
court’s discretion, it is not a discretion without bounds or
limits.”
Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36,
40 (4th Cir. 1995) (quotation marks and brackets omitted).
This
is particularly so when a party requests the rather draconian
penalty of dismissal or default.
Id.
Thus, a district court
should consider four factors in determining what sanctions to
impose under Rule 37:
“(1) whether the non-complying party
acted
(2)
in
bad
faith;
the
4
amount
of
prejudice
that
noncompliance caused the adversary; (3) the need for deterrence
of the particular sort of non-compliance; and (4) whether less
drastic
sanctions
would
have
been
effective.”
Belk
v.
Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir.
2001) (quotation marks omitted).
Neither party has directed its
arguments towards this standard.2
In
effect,
the
parties
first part of the test:
Bethesda
Softworks’
on
the
Interplay’s alleged bad faith.3
In
view,
pattern
began
with
almost
Interplay
pattern of discovery abuse.
this
focus
a
has
exclusively
engaged
in
a
long
According to Bethesda Softworks,
series
of
baseless
objections
to
certain discovery requests and culminated in Interplay’s noncompliance with the court’s January 13 order on a motion to
compel.
Interplay
responds
that
it
raised
only
good
faith
objections to Bethesda Softworks’ discovery requests, even if
those objections were ultimately overruled (for the most part).
2
It may be an abuse of discretion to apply the
dismissal sanction without applying that standard.
See Riggins
v. Steel Techs., 48 F.App’x 460, 462 (4th Cir. 2002).
3
Bad faith is one factor to consider in imposing
sanctions for failure to comply with a court order, but “nothing
in the rule requires that the failure be on account of bad
faith.” Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 26 (1st Cir.
2006); cf. Hoyle v. Freightliner, Inc., --- F.3d ----, 2011 WL
1206658, at *4 (4th Cir. Apr. 1, 2011) (explaining that bad faith
is not required to impose discovery sanctions under Rule
37(c)(1)).
5
It also maintains that it has endeavored to comply with its
understanding of the court’s order on January 13.
Interplay has not completely and properly complied with the
court’s order; Document Request Nos. 33 and 34 are illustrative.
Those
requests
asked
for
documents
“relating
to”
the
terms
“minimum financing” and “full-scale development” found in the
Trademark Licensing Agreement (“TLA”) between Bethesda Softworks
and Interplay.4
too
ambiguous
Interplay initially objected that the terms were
and
undefined
to
specify
any
documents.
The
court, in its letter order on the motion to compel, rejected
that argument; the order indicated that Interplay should apply a
“good
faith
understanding”
of
the
terms
–
which
were
in
a
document Interplay signed – and respond to the requests to the
best of its ability.
Now,
Interplay
(ECF No. 97, at 4).
continues
to
complain
that
the
terms
“minimum financing” and “full-scale development” are undefined;
consequently, those terms “cannot be enforced” because “there is
no yardstick by which to measure Interplay’s compliance.”
position is not argued in good faith.
4
This
For one, Interplay’s
Although Bethesda Softworks’ motion to compel was
granted as to these document requests, the prudent party would
avoid using “omnibus phrases” such as “relating to” altogether.
See, e.g., Leisure Hospitality, Inc. v. Hunt Props., Inc., No.
09-CV-272-GKF-PJC, 2010 WL 3522444, at *3 (N.D.Okla. Sept. 8,
2010) (listing cases establishing that such phrases are often
objectionable).
6
argument that these two contract terms are so hopelessly vague
that
it
meaning
cannot
would
offer
any
reasonable
moot
effectively
interpretation
of
much
this
of
case.
their
One
of
Interplay’s principal contentions is that, pursuant to the TLA,
it holds a license to use certain Fallout-related marks.
But
the TLA would be unenforceable if it contained material terms
that were so “vague or indefinite” as to fail to provide a
reasonable
standard
for
determining
occurred.
Cont’l Ins. Co. v. Rutledge & Co., Inc., 750 A.2d
1219, 1230 (Del.Ch. 2000).
protection
of
a
license
whether
a
breach
has
Thus, Interplay cannot seek the
while
simultaneously
objecting
to
discovery on a basis that would render that very license void.
In contradictory fashion, Interplay also indicates that it
has produced documents relating to the purportedly indefinable
provisions.
As
to
Document
Request
No.
33,
for
instance,
Interplay states that it has produced documents that “Interplay
contends
demonstrate
compliance”
with
the
minimum
financing
provision.
Interplay must do more than respond with documents
evidencing
compliance.
broader
terms.
documents
financing,”
Interplay
relating
whether
non-compliance,
Bethesda’s
or
to
should
request
“full-scale
have
those
else
demonstrated
in
phrased
in
with
all
responded
development”
documents
something
was
between.
and
“minimum
compliance,
See,
e.g.,
Novelty, Inc. v. Mountain View Mktg., Inc., 265 F.R.D. 370, 378
7
(S.D.Ind. 2009) (“Producing only those documents that are deemed
helpful to the producing party’s litigation position – parsing
out the bad from the good – is, of course, impermissible.”).
Similarly, with Document Request No. 34, Interplay adopted
another
limiting
documents
after
interpretation:
April
4,
2009,
it
the
refused
deadline
to
in
produce
the
TLA
securing financing and commencing full-scale development.
any
for
The
court’s order on January 13 did not apply any temporal limit.
Interplay
nevertheless
maintains
that
this
court
temporal limit during a hearing on January 14.
suggested
a
(ECF No. 108, at
6 (“Interplay believed that the Court clarified that it was
first to produce the documents for the time period up to and
including
the
April
4,
2009
contract
deadline
and
that
the
parties were to further meet and confer regarding the need for
the post deadline materials.”).
There was no such ruling.
At
the hearing, the court specifically addressed the issue of postApril
4
documents
and
acknowledged
that
they
were
“relevant
. . . to the question of how far [Interplay] had gotten by the
time of the purported termination.”
(ECF No. 100, at 44); cf.
Carr v. Double T. Diner, --- F.R.D. ---, No. WMN-10-CV-0230,
2010 WL 4365579, at *1 (D.Md. Nov. 2, 2010) (“The scope of
relevancy under discovery rules is broad such that relevancy
encompasses any matter that bears or may bear on any issue that
is or may be in the case.”).
Interplay cites certain language
8
wherein the court distinguished between the potential usefulness
of
pre-
and
post-April
2009
materials.
As
the
transcript
indicates, however, that discussion occurred only in the context
of deciding to whom the materials should be disclosed (i.e.,
whether
disclosure
should
be
limited
to
outside
counsel).
Because Interplay raised concerns about disclosing proprietary
information to Bethesda Softworks, counsel were instructed to
confer
on
whether
the
post-April
2009
material
disclosed to anyone other than outside counsel.
should
be
There was no
indication that counsel were to discuss whether post-April 2009
materials
would
indicated
that
be
disclosed
Interplay
was
at
all.
free
to
The
court
ignore
the
never
once
unambiguous
order to make a complete production.5
Interplay’s
problematic.
response
to
Interrogatory
No.
14
was
also
In response to a question asking for “all facts
relating to any financing” after April 4, 2009, Interplay rather
conclusorily
stated
that:
(1)
5
Masthead
Studios
“provided
Interplay’s misconstruction of the court’s January 13
order seems to be indicative of a disappointing lack of care on
Interplay’s part, particularly when paired with Interplay’s
failure to file a supplemental response to Interrogatory No. 16
because “it missed the reference” to that interrogatory in the
written order.
The parties are cautioned that the failure to
exercise
appropriate
care
in
fulfilling
their
discovery
obligations will not provide a valid excuse for noncompliance.
Cf. Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 413 (4th
Cir. 2010) (explaining that “carelessness” and “inattentiveness”
is not excusable).
9
development services in accord with the parties’ agreements”;
(2)
Interplay
additional
also
financing
contemplated,
with
another
but
party;
did
not
and
complete,
(3)
produced documents related to that third party.
Interplay
The factual
information contained in this answer is decidedly vague, and the
mere reference to other documents does not help matters much.
“Case
law
in
federal
district
courts
generally
disfavors
attempts to respond to interrogatories by referring to other
documents.
Even if such documents are relevant, there is value
in clear and precise interrogatory answers.”
Dairyland Power
Co-op v. United States, 79 Fed.Cl. 722, 726 (2007) (citations
omitted).
Still, Bethesda Softworks likely goes too far in accusing
Interplay of engaging in a “year-long, bad faith campaign to
impede discovery.”
(ECF No. 109, at 3).
Importantly, this is
not an instance where the responding party has entirely refused
to
respond
to
discovery.
disputes evidence misconduct.6
complains
that
it
has
And
not
all
of
these
discovery
For instance, Bethesda Softworks
received
“no
documents
showing
the
identity or number of Masthead or Interplay personnel working on
6
“That two persons disagree does not mean that one of
them has bad motives.”
Big Dipper Entm’t, LLC v. City of
Warren, --- F.3d ----, No. 09-2339, 2011 WL 1378417, at *4 (6th
Cir. Apr. 13, 2011).
10
the development of the [Massively Multiplayer Online Game, or]
MMOG, or, if there are such people, documents showing the time
periods they worked on the MMOG.”
(ECF NO. 109, at 14).
It is
not clear that such information would be responsive to any of
the document requests the court has seen.
In addition, Bethesda
Softworks asserts that it has not seen “any large volume of
documents,” which it apparently takes to mean there must be
other
undisclosed
documents
documents.
relating
to
It
Interplay’s
says
there
development
must
be
more
agreement
with
Masthead Studios, even though Interplay insists it has produced
them all.7
It also conclusorily labels Interplay’s responses to
Document Request Nos. 35 and 36 “dubious.”
Such arguments do
not establish bad faith because “the court is loathe to credit a
party’s mere hunch about the existence of additional documents
responsive
to
a
particular
discovery
request.”
Hubbard
v.
Potter, 247 F.R.D. 27, 29 (D.D.C. 2008); see also Trilegiant
Corp. v. Sitel Corp., --- F.R.D. ----, No. 09 Civ. 6492, 2010 WL
4668950, at *7 (S.D.N.Y. Nov. 15, 2010) (declining to order
party to “respond more fully” to document requests, where the
requesting party did not point to any specific documents the
responding
party
failed
to
produce).
7
Moreover,
Bethesda
Interplay states it has produced all documents
responsive to that document request, except for documents
falling outside of the (erroneous) time limit of April 4, 2009.
11
Softworks
protests
that
Interplay’s
interrogatory
contain legal arguments rather than facts.
responses
While it is true
that there is a great deal of unnecessary legal argument in some
of the responses, the responses also contain responsive facts
and therefore do not support a finding of bad faith.
There
is
some
degree
of
prejudice
compliance
with
resulting
the
mandates
from
Interplay’s
questionable
of
discovery.
Bethesda Softworks primarily emphasizes the delay
that has resulted from Interplay’s unwillingness or inability to
comply
completely
with
delay,
disruption
of
discovery
can
amount
all
discovery
deadlines,
to
requests.
and
prejudice.
the
See
Indefinite
continuation
Goodman
v.
of
Praxair
Servs., Inc., 632 F.Supp.2d 494, 508 n.6 (D.Md. 2009) (listing
cases); Aerodyne Sys. Eng’g, Ltd. v. Heritage Int’l Bank, 115
F.R.D. 281, 288 (D.Md. 1987) (“[The plaintiff]’s delinquent and
inadequate interrogatories and document responses have resulted
in prejudice to [the defendant] by preventing it from conducting
discovery, evaluating the merits of the claims against it, and
from adequately preparing its defense to this matter.”).
And,
to be sure, there has been some degree of delay in this case, as
the parties originally intended to complete discovery by the end
of
2010.
On
the
other
attributable to Interplay.
hand,
this
delay
is
not
entirely
Indeed, Bethesda Softworks conceded,
in its motion to “withdraw” its proposed scheduling order, that
12
the schedule had become unworkable for several reasons.
Among
other things, “the schedules of the parties and their counsel,”
as well as certain disputes over who should be permitted to
review the materials produced in discovery, caused some degree
of delay.
attribute
(ECF No. 78, at 3).
an
entire
year
of
Thus, it is disingenuous to
delay
to
Interplay.
Bethesda
Softworks does not point to any other form of prejudice, though
one might surmise that the withholding of material information
is prejudicial in itself.
There is a need to deter the type of gamesmanship that one
might suspect is happening in this case.
See Mut. Fed. Sav. &
Loan Ass’n v. Richards & Assoc., Inc., 872 F.2d 88, 93 (4th Cir.
1989) (“[S]talling and ignoring the direct orders of the court
. . . must obviously be deterred.”).
the
game
playing
out
of
the
Discovery is meant to take
trial
process,
not
simply
add
another stage to the process where the parties can cagily engage
in obfuscation and evasion.
See Newsome v. Penske Truck Leasing
Corp., 437 F.Supp.2d 431, 437 (D.Md. 2006) (explaining discovery
was designed to make trial “less of a game of blind man’s bluff
and more of a fair contest” (quotation marks omitted)).
A lack
of forthrightness early in the discovery process is especially
troubling, because “such action can have a spiraling effect on
the
future
litigation
scheduling
collateral
of
discovery,
disputes
13
which
and
inject
typically
into
the
require
the
intervention of the court to resolve.”
Flagstaff
Indus.
Corp.,
173
F.R.D.
Jayne H. Lee, Inc. v.
651,
653
(D.Md.
1997).
Indeed, one might say that is exactly what happened here.
The
last
factor,
the
effectiveness
of
less
drastic
sanctions, counsels against the imposition of the heavy sanction
Bethesda
Softworks
seeks.
Interplay
largely
error lies behind its discovery failures.
case,
a
lesser
conscientious.
sanction
should
claims
innocent
If that is indeed the
encourage
it
to
be
more
If it is not, Bethesda Softworks will have the
later opportunity to seek harsher sanctions.
In addition, “the
Fourth Circuit has . . . emphasized the importance of warning a
party
prior
discovery
to
dismissing
sanction.”
Steigerwald
v.
[or
Camper,
Bradley,
229
defaulting]
200
F.R.D.
F.Supp.2d
its
at
445,
claim
518;
449
as
see
(D.Md.
a
also
2002)
(“[T]he Fourth Circuit has encouraged trial courts initially to
consider imposing sanctions less severe than default, such as
awards
of
costs
and
omitted)).
In
some
Softworks’
motion
to
tactics
should
be
attorneys’
sense,
compel
put
to
fees.”
the
was
prior
a
rest.
(quotation
ruling
signal
Yet
that
that
on
Bethesda
any
opinion
marks
evasive
did
not
explicitly invoke the possibility of default and dismissal as a
sanction
for
continuing
non-compliance.
Bethesda
Softworks
alternatively asks the court to strike any affirmative defense
or
counterclaim
based
on
“license
14
or
right.”
Practically
speaking, such a sanction would have the same effect as the
powerful dismissal and default sanction discussed above.
See,
e.g., Parrott v. Wilson, 707 F.2d 1262, 1273 n.26 (11th Cir.
1983) (recognizing that the striking of a defense “would be
tantamount to granting a motion for summary judgment”).
Given
the lack of any clear notice to Interplay that such sanctions
were a possibility if its behavior continued, these powerful
tools are not appropriately invoked (yet).
As another alternative, Bethesda proposed that the court
“prohibit Interplay . . . from supporting or opposing any claim
or defense in this matter with: (a) any document not produced by
Interplay in violation of the Court’s January 13, 2011 discovery
order; or (b) any factual matter not included in Interplay’s
responses
Court’s
again,
to
Bethesda’s
January
13,
is
quite
2011
harsh
evidence of prejudice.
F.Supp.2d
378,
interrogatories
421
discovery
and
in
order.”
typically
violation
This
requires
of
the
sanction,
some
strong
Passlogix, Inc. v. 2FA Tech., LLC, 708
(S.D.N.Y.
2010)
(“Preclusion
is
a
harsh
sanction preserved for exceptional cases where a . . . party’s
failure to provide the requested discovery results in prejudice
to
the
requesting
party.”).
Moreover,
a
blanket
order
of
preclusion at this stage might effectively bar Interplay from
supplementing
its
present
responses
later discovers itself.
15
with
information
that
it
Interplay should not entirely escape without sanction, as
it has pressed some more-than-questionable objections, without
substantial justification, which caused unnecessary delay in the
face of a clear discovery order.
order
Interplay
to
pay
$2,000
Accordingly, the court will
to
offset
a
portion
of
the
attorney’s fees and costs Bethesda Softworks has incurred in
bringing this motion.8
for
the
payment
of
See Fed.R.Civ.P. 37(b)(2)(C) (providing
fees
as
a
possible
sanction);
see
also
Marquis v. Chrysler Corp., 577 F.2d 624, 642 (9th Cir. 1978)
(terming a $2,000 sanction for failure to produce documents a
“light sanction”).
It is also expected to rectify its earlier
discovery responses to provide complete answers – particularly
as
to
Document
consider
itself
Request
on
Nos.
notice
33
that
and
34.
harsher
Interplay
sanctions
should
may
be
forthcoming if the evasive discovery tactics continue.
8
Both attorneys on brief for Bethesda Softworks have
apparently been admitted to the bar for more than 10 years.
Even if one applies the lowest presumptive rate in this district
for attorneys with 10 years of experience (i.e., $225), a $2,000
sanction reflects fewer than 9 hours of work (not including
costs).
See Rules and Guidelines for Determining Attorneys’
Fees in Certain Cases for the District of Maryland § 3. That is
not an unreasonable amount of time for preparing this motion for
sanctions.
Bethesda Softworks also sought fees and costs
associated with its earlier motion to compel, but those expenses
are not recoverable under Rule 37(b)(2).
See 8B Charles Alan
Wright, et al., Federal Practice & Procedure § 2289 (3d ed. 2010)
(“The expenses that may be recovered under [this rule] are those
‘caused by the failure’ to obey an order and therefore do not
include the expense of obtaining the order itself.”).
16
As for any future discovery, the court expects the parties
to conduct it in a cooperative fashion, rather than viewing
every discovery issue as an opportunity to spar.
See Mancia v.
Mayflower Textile Servs. Co., 253 F.R.D. 354, 361 n.3 (D.Md.
2008)
(emphasizing
importance
of
cooperation).
Parties
(and
their attorneys) are not meant to use discovery “as a trampoline
on which to exercise their mutual animosity.”
State
Univ.,
269
F.R.D.
565,
571
(D.Md.
Mezu v. Morgan
2010).
Thus,
the
parties should engage in genuine meet and confer discussions,
during which the parties attempt to resolve their differences rather than simply stating their opposing positions and refusing
to budge.9
See Local Rule 104.7 (“Counsel shall confer with one
another concerning a discovery dispute and make sincere attempts
to
resolve
Hopefully,
the
with
differences
a
little
between
them.”
collaboration,
(emphasis
“[t]he
added)).
lawyers
are
spared the embarrassment of making clearly erroneous arguments
. . . [and] [t]he clients are spared needless expense incurred
in
the
delay.”
litigation
of
discovery
disputes
and
the
attendant
Higginbotham v. KCS Int’l, Inc., 202 F.R.D. 444, 453
(D.Md. 2001).
9
The court also hopes to avoid future arguments over
who said what and when they said it during meet and confer
conferences.
Sophisticated and competent counsel, such the
attorneys on both sides of this case, have more important issues
upon which to focus their energies.
17
The reality in this case is that face-to-face meetings are
impractical, given that counsel for the parties are separated by
several thousand miles.
Even so, working together means more
than
worded
swapping
counsel.”
“sharply
letters
and
emails
between
Watts v. Allstate Indem. Co., No. 2:08-cv-01877, 2010
WL 4225561, at *3 (E.D.Cal. Oct. 20, 2010).
If, after frank
discussion, the parties determine that some intractable issue
requires court involvement, then they may file an appropriate
motion.
simply
In doing so, they would be well advised to present
the
facts
and
allow
the
court
to
draw
its
own
conclusions, rather than using heated rhetoric that only serves
to escalate matters.
Interplay
of
“a
(See, e.g., ECF No. 106-1, at 2 (accusing
series
of
misrepresentations,
frivolous
objections and arguments, and other dilatory tactics”); id. at 4
(arguing Interplay is “simply playing for time, has performed,
and is continuing to perform, its discovery obligations in bad
faith,
and
has
no
intention
of
engaging
in
meaningful
and
required discovery”); ECF No. 108, at 2 (contending Bethesda
Softworks’ motion was “based on blatant misrepresentations”);
id. at 10 (“Bethesda stoops to half truths . . .”); id. at 11
(labeling
Bethesda
Softworks’
factually
dishonest”)).
motion
Calm,
“legally
cooperative
discovery issues will serve everyone’s interests.
18
frivolous
and
resolution
of
III. Conclusion
For the foregoing reasons, the motion for sanctions filed
by Bethesda Softworks will be granted in part and denied in
part.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
19
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