PTT, LLC v. GIMMIE GAMES et al

Filing 482

ORDER & OPINION OF THE SPECIAL MASTER; To the extent Defendants argue that H5G should be precluded from relying on additional documents identified in the future, the Special Master notes that discovery is ongoing and that HSG is required to supple ment its responses pursuant to Fed. R. Civ. P. 26. Accordingly, at this time it would be inappropriate for the Special Master to preclude H5G from offering documents beyond those identified in its response to Interrogatory No. 36. Sanctions are also improper at this time as H5G has not violated any discovery order. Accordingly, Defendants' motion is denied; etc. Signed by Special Master Dennis M. Cavanaugh, U.S.D.J.(Ret) on 9/20/2019. (sms)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Case No.: 2:13-CV-07161-JMV-MF
HIGH 5 GAMES, LLC, a Delaware Limited
Liability Company, Ilk/a P17, LLC,

PlaintiWCounterclaim Defendant,
ORDER & OPINION OF TUE SPECiAL
MASTER

vs.

DANIEL MARKS, an individual; JOSEPH
MASCI, an individual; BRIAN KAVANAGH,
an indivisual; MARKS STUDIOS, LLC, an
entity d/b/a GIMME GAMES; ARISTOCRAT
TECHNOLOGIES, INC., an entity;
ARISTOCRAT TECHNOLOGIES
AUSTRALIA PTY LIMITED, an entity;
ARISTOCRAT LEISURE LIMITED, an
entity; PRODUCT MADNESS, INC., an
entity; GRANT BOLLING, an individual;
JOHN SMITH(s) 1-7; and )fl’Z COMPANIES
1-7,
Defendants/Counterclaim Plaintiffs.
This matter comes before the Special Master upon the motion of defendants Daniel
Marks, Joseph Masei, Brain Kavanagh, Grant BoIling, Marks Studios, LLC (“Marks Studios”),
Aristocrat Technologies, Inc. (“ATI”), Aristocrat Technoiogies Australia Pty Ltd. (“ATA”),
Aristocrat

Leisure

Limited

(“ALL”),

and

Product

Madness,

Inc.

(“Product

Madness”)(collectively, “Defendants”) to compel Plaintiff High 5 Games, LLC (“H5G”) to
produce documents pursuant to Interrogatory No. 36 or to preclude H5G from later relying on
those documents. After considering the submissions of the parties, based upon the following, it is
the opinion of the Special Master that Defendants’ motion is DENIED.

DISCUSSION
I. Arguments of the Parties

Defendants request that H5G be directed to produce any remaining documents by a date
certain or be precluded from offering documents beyond those identified in its response to
Interrogatory No, 36. Defendants argue that for months H50 has declined to answer specific
questions whether it possesses certain documents that it was required to identify in response to
Interrogatory No. 36. Defendants argue that if H5G can identify particular documents, such as
the H50 math model that corresponds to MM1 and MM2, it should supplement its production
immediately. Alternatively, Defendants argue that if H5G is prepared to stand by the
completeness of its response to Interrogatory No. 36, it should be precluded from later presenting
any such documents responsive to the request at trial or for any other purpose in this action.
Defendants point to Fed. R. Civ. P. 37(b)(2)(A) and argue that while no sanction is yet
called for, if H5G fails to produce documents now, these factors would support preclusion.
Defendants argue that given the claimed importance of the allegedly misappropriated documents
and H50’s refusal to respond to Defendants’ requests to identify or produce other materials
supposedly originating from H5G, there either are no more documents (which the record should
reflect) or H5G’s concealment of the documents is deliberate. Defendants argue that no other
remedy can reasonably protect them because the key to their defense is the ability to compare
certain documents in a specific Defendant’s possession with the documents HSG claims
originated with 115G.
H5G maintains that it is complying with its discovery obligations. H5G argues that in
response to Interrogatory No. 36 it provided the identification of exemplar documents it
produced containing H5G proprietary information that it has found in Defendants’ production.
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H50 further argues that it has provided a fulsome response to Interrogatory No. 24, which

outlines Defendants’ trade secret misappropriation and identifies numerous documents
Defendants’ produced that originated at H5G and that may be used during depositions.
H5G points to the fact that discovery is ongoing and that Defendants have produced over
2.2 million documents in this matter. H5G maintains that it thus continues to identify additional
documents in Defendants’ possession that Defendants have stolen. H5G argues that it has
continuously been supplementing its discovery responses as required under Fed. R. Civ. P. 26.
Moreover, H5G argues that considering it expects to uncover evidence during depositions
relevant to Defendants’ misappropriation, it would prejudice H5G to be limited to its
interrogatory responses at this time. H5G further argues that Defendants have not established that
there is any discovery order relevant to H50’s response to Defendants’ Interrogatory No. 36 and
thus H5G cannot be sanctioned because it cannot be found to have failed to comply with any
discovery order.
Opinion
The Special Master will not order H5G to produce documents responsive to Interrogatory
No. 36 by a date certain or preclude HSG from later relying on documents it may subsequently
identify. According to H5G, it has provided a fulsome response to Interrogatory No. 36 and it
will continue to supplement its response as required by Fed. N.. Civ. P. 26. Discovery is ongoing

in this matter and since H5G has represented that it has provided complete response to
Interrogatory No. 36 with the information it has at this time, the Special Master cannot compel
HSG to produce information it does not currently possess. To the extent Dcfendants argue that
N5G should be precluded from relying on additional documents identified in the future, the
Special Master notes that discovery is ongoing and that HSG is required to supplement its
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responses pursuant to Fed. R. Civ. P. 26. Accordingly, at this time it would be inappropriate for
the Special Master to preclude FI5G from offering documents beyond those identified in its
response to Interrogatory No. 36. Sanctions are also improper at this time as H5G has not
violated any discovery order. Accordingly, Defendants’ motion is denied.

DENNIS M. CAVANAUGH, U.S.DJ. (Ret.)
Special Master

Date: September 20, 2019

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