Hayden v. 2K Games, Inc. et al

Filing 50

Memorandum of Opinion and Order. The Court orders Defendants to respond to Plaintiff's Request for Production No. 33 and Interrogatory No. 14. The other three discovery requests at issue are denied. No further fact discovery will be allowed. Signed by Magistrate Judge Jonathan D. Greenberg on 3/16/2020. (Related document 44 ) (S,S)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRCT OF OHIO
EASTERN DIVISION
JAMES HAYDEN,

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Plaintiff,
vs.
2K GAMES, INC., et al.,
Defendants.

CASE NO. 1:17-CV-02635-CAB
JUDGE CHRISTOPHER A. BOYKO
MAGISTRATE JUDGE
JONATHAN D. GREENBERG

MEMORANDUM OF OPINION &
ORDER

This matter is before the Court on the parties’ pending discovery disputes. (See Doc. No. 44.)
I.

Factual Background

This case was before the Court in the fall for resolution of discovery disputes pending at that time.
(Doc. No. 38.) On November 12, 2019, the parties resolved their pending discovery disputes during a joint
meet and confer and discovery conference. (Doc. No. 43.) That same day, the Court extended fact discovery
to January 31, 2020. (Id.) The referral for discovery-related issues remained open through the end of
discovery. (Id.)
On February 21, 2020, Judge Boyko referred this case to the undersigned to resolve pending
discovery disputes and related discovery issues. (Doc. No. 44.) Some of those discovery disputes have
since been resolved.
On March 16, 2020, the Court held oral argument on the remaining discovery disputes. The current
disputes before the Court stem from discovery requests Plaintiff served on January 31, 2020 – the fact
discovery deadline. While the parties disagree on whether that conduct runs afoul of the Federal Rules of
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Civil Procedure and the Local Rules, the parties continued to discuss the January 31, 2020 discovery
requests and Defendants produced information in response to many of those requests. The Court does not
intend to penalize the Defendants for working cooperatively with Plaintiff in response to these discovery
requests, and both sides are to be commended for continuing to try to move this litigation forward
notwithstanding their fundamental difference in opinion on these issues. The Court rules on the five
remaining discovery requests at issue as follows.
II.

Disputed Discovery Requests

The Court “has broad discretion over discovery matters, Trepel v. Roadway Express, Inc., 194 F.3d
708 (6th Cir. 1999), and in deciding discovery disputes, a magistrate judge is entitled to that same broad
discretion, and an order of the same is overruled only if the district court finds an abuse of discretion.” State
Farm Mut. Auto. Ins. Co. v. Pointe Physical Therapy, 255 F. Supp. 3d 700, 704, 711 n.1 (E.D. Mich. 2017)
(citing 12 Wright, Miller & Marcus, Federal Practice and Procedure § 3069, 350 n.20 (2d ed. 1997 & Supp.
2010)). See also id. at 711 n.1 (“An abuse of discretion exists when the court applies the wrong legal
standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.”) (citations
omitted).
The parties disagree over four requests for production and one interrogatory.
In Request for Production No. 32, Plaintiff sought, “Telemetry data showing the extent to which the
NBA Players are used by users while playing the Accused Games, including without limitation: a) data as
to the individual NBA Players; b) data as to the teams that include the individual NBA Players; and 3) the
data that supports the claims made in TAKE-TWO_00000854.” Defendants assert that they do not track
such data at the player level, and Plaintiff’s request for the team data is both untimely and unduly
burdensome. First, Defendants maintain the document Plaintiff cites in his request was produced in August
2019. Second, this information is contained in a database, and Defendants argue they are not required under
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the Federal Rules of Civil Procedure to create data. The Defendants’ arguments regarding this Request for
Production are well-taken. The Court DENIES Plaintiff’s Request for Production No. 32.
In Request for Production No. 33, Plaintiff asked for “Communications with NBA Properties or
NBA Players Association regarding the copyright issue identified in TAKE-TWO_00004104 or any other
copyright issue.” Plaintiff asserts that the deposition testimony by the author of the cited document was
unclear and necessitated the discovery request. Plaintiff’s arguments regarding this Request for Production
are well-taken. The Court GRANTS Plaintiff’s Request for Production No. 33 and ORDERS Defendants
to search for these communications and produce any responsive, non-privileged documents within twenty
(20) days of this Order.
In Request for Production No. 36, Plaintiff sought, “Tattoo bug reports from 2015-present (see, e.g.,
TAKE-TWO_00004616).” Defendants represent that even for just two agreed custodians, a “back of the
envelope” search resulted in thousands of documents, making responding to this request unduly
burdensome. In addition, Defendants assert this information is not relevant as they have produced the tattoo
bug reports for the three NBA players at issue in this case. The Defendants’ arguments are well-taken. The
Court DENIES Plaintiff’s Request for Production No. 36.
In Request for Production No. 38, Plaintiff asked for “Exemplary licenses to use the likeness of any
influencer in the Accused Games, including without limitation, Defendants’ agreement(s) with Chris
Brickley.”

Plaintiff later amended this request to only the license agreement with Chris Brickley.

Defendants maintain this license agreement is not relevant and they have produced the licenses for the three
NBA players at issue in this case. The Defendants’ arguments are well-taken, and Plaintiff fails to convince
the Court this information is relevant to this case. The Court DENIES Plaintiff’s Request for Production
No. 38.

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