Blue Rooster LLC v. Perficient, Inc.

Filing 31

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motion to compel is GRANTED in part, to the extent that Defendant shall produce to Plaintiff, no later than 14 days from the date of this Memorandum and Order, "all financial doc uments and information showing or evidencing Rise-related revenue (regardless of whether such revenue is characterized as a 'license fee' or assigned to the 'Rise Team' within the Division)." The motion is otherwise DENIED. ECF No. 22 . Signed by District Judge Audrey G. Fleissig on June 20, 2018. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BLUE ROOSTER LLC,
Plaintiff,
vs.
PERFICIENT, INC.,
Defendant.

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Case No. 4:17-CV-02689-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Blue Rooster LLC’s motion (ECF No.
22) to compel Defendant Perficient, Inc. to respond to Plaintiff’s requests for production.
For the reasons set forth below, the motion will be granted in part and denied in part.1
BACKGROUND
This breach of contract action arises out of Defendant’s purchase of Plaintiff’s
proprietary software and services known as Rise Foundation (“Rise”). The purchase
agreement was signed and finalized on October 12, 2015, and the deal closed on December
31, 2015.
Plaintiff alleges that Defendant has not paid all monies due and owing pursuing to
the parties’ purchase agreement. Specifically, Plaintiff alleges that Defendant agreed to
pay Plaintiff a percentage of the revenue it earned from Rise after deduction of certain
costs. Plaintiff alleges that Defendant has failed to provide payment owed and has falsely
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The Court notes that, on June 19, 2018, Plaintiff filed a request for oral argument.
However, by the time the request was received, this Memorandum and Order was already
prepared based on the parties’ thorough briefs. Moreover, the Court is unavailable on the
proposed dates suggested Plaintiff.

claimed that it has received little or no revenue from Rise. Plaintiff alleges that Defendant
has failed to provide sufficient information about its Rise revenue and that it has
mischaracterized or artificially depressed its Rise revenue to avoid paying Plaintiff.
The current discovery dispute arises out of the following three requests for
production, in which Plaintiff seeks financial documents reflecting revenue for Defendant’s
Microsoft Division, which is the division that sells, licenses, and provides services for Rise:
Request 7 – All documents reflecting, referring to, regarding or constituting
monthly, quarterly and yearly Profit & Loss statements for [Defendant’s]
Microsoft Division for the last five (5) years;
Request 8 – All documents reflecting, referring to, or regarding monthly,
quarterly, and yearly Revenue earned by [Defendant’s] Microsoft Division for
the last five (5) years; and
Request 25 – All documents reflecting, referring to, regarding, or constituting
any and all financial audits of [Defendant’s] Microsoft Division during the
time period October 2015 to present.
ECF No. 22 at 3. Plaintiff argues that the requests seek relevant information that will allow
Plaintiff to conduct a more complete analysis of the process by which Plaintiff accounts for
Rise-related revenue.
In response, Defendant argues that the requests are overbroad, unduly burdensome,
and not proportional to the needs of the case. Specifically, Defendant argues that the
Microsoft Division encompasses many more products than Rise and that the financial
documents from this division do not break down revenue earned from individual products.
For example, Defendant contends that the revenue of its Rise team within the Microsoft
Division only accounted for less than one percent of the revenue of the entire division from
2016 to 2018. Defendant maintains that production of financial documents from the entire
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division, as Plaintiff has requested, would amount to a “monumental task” that would yield
largely irrelevant results.
Defendant further argues that the purchase agreement only entitles Plaintiff to 30% of
revenue from Rise licensing fees if those fees exceeded the value of certain expenses.
Defendant states that it has “produced contracts, statements of work, and invoices which
allow [Plaintiff] to confirm the exact amount, date, and terms of all Rise licensing fees,” and
thus, no further production is required. ECF No. 25 at 4.
In reply, Plaintiff argues that the purchase agreement requires payment of a
percentage of all Rise related revenue and is not limited to just license fees. Plaintiff further
contends that Defendant’s assertion of overbreadth is without merit because “Rise-related
revenue is all that [Plaintiff wants to see].” ECF No. 28 at 3. Plaintiff contends that
“produc[ing] the Microsoft Division financials for Rise-related revenue should be
straightforward,” and requests that Defendant “produce all financial documents and
information showing or evidencing Rise-related revenue (regardless of whether such revenue
is characterized as a ‘license fee’ or assigned to the ‘Rise Team’ within the Division) . . . .”
Id. at 4-5.
DISCUSSION
Upon careful consideration of the parties’ arguments in light of the proportionality
concerns set forth in Federal Rule of Civil Procedure 26, the Court will grant in part and
deny in part Plaintiff’s motion. While the Court agrees with Plaintiff that production of “all
financial documents and information showing or evidencing Rise-related revenue (regardless
of whether such revenue is characterized as a ‘license fee’ or assigned to the ‘Rise Team’
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within the Division),” is relevant to this case, Plaintiff’s actual document requests are much
broader in scope. However, in light of Plaintiff’s representation that it is only seeking such
documents, the Court will grant Plaintiff’s motion in part, to the extent that Defendant must
promptly produce the more limited category of documents defined above.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to compel is GRANTED in
part, to the extent that Defendant shall produce to Plaintiff, no later than 14 days from the
date of this Memorandum and Order, “all financial documents and information showing or
evidencing Rise-related revenue (regardless of whether such revenue is characterized as a
‘license fee’ or assigned to the ‘Rise Team’ within the Division).” The motion is otherwise
DENIED. ECF No. 22.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 20th day of June, 2018.

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