Via Vadis, LLC et al v. Blizzard Entertainment, Inc.

Filing 172

ORDER GRANTING IN PART AND DENYING IN PART 130 Motion to Compel Answers to Interrogatories and Production of Documents. Signed by Judge Susan Hightower. (cc3)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
VIA VADIS, LLC and
AC TECHNOLOGIES, S.A.,
Plaintiffs
v.
BLIZZARD ENTERTAINMENT, INC.,
Defendant

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CIVIL NO. 1:14-CV-00810-LY

ORDER
Before the Court are Plaintiffs’ Motion to Compel Answers to Interrogatories and Production
of Documents, filed April 16, 2021 (Dkt. 130); Blizzard’s Opposition to Plaintiffs’ Motion to
Compel Answers to Interrogatories and Production of Documents, filed April 26, 2021 (Dkt. 135);
Plaintiffs’ Reply, filed May 3, 2021 (Dkt. 139); Blizzard’s Sur-Reply, filed May 12, 2021 by leave
of Court (Dkt. 145-1; Dkt. 158); and Plaintiffs’ Advisory Notice to the Court Re: Plaintiffs’ Motion
to Compel Answers to Interrogatories and Production of Documents, filed July 2, 2021 (Dkt. 170).
The District Court referred Plaintiffs’ motion to the undersigned Magistrate Judge for resolution,
pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of
Appendix C of the Local Rules of the United States District Court for the Western District of
Texas. Dkt. 159. The Court held a hearing on the motion on July 7, 2021.
I.

Background

Via Vadis and AC Technologies, S.A. (“Plaintiffs”) are the owner and exclusive licensee,
respectively, of U.S. Patent No. RE40,521 (the “Asserted Patent”) for a data access and
management system. They accuse Defendant Blizzard Entertainment, Inc. (“Blizzard”) of making

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video game distribution software that infringes the Asserted Patent. Amended Complaint,
Dkt. 116.
The patent claims asserted by Plaintiffs cover the operations of peer-to-peer networks.
Plaintiffs allege that Blizzard infringes the asserted claims by using the BitTorrent Protocol, a
“peer to peer file distribution protocol that allows multiple networked users to simultaneously
upload and download segments or pieces of the same file to and from each other.” Dkt. 116 ¶ 14.
Plaintiffs contend that Blizzard used BitTorrent to distribute certain of its video games, known as
“Titles,” including the World of Warcraft, StarCraft, and Diablo series. Dkt. 130 at 4-5.
Plaintiffs now ask the Court to compel Blizzard to answer certain interrogatories and produce
documents responsive to their discovery requests.
II. Legal Standard
Federal Rule of Civil Procedure 26(b)(1) provides that parties “may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense.” The scope of discovery
is broad. Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011). “A discovery
request is relevant when the request seeks admissible evidence or ‘is reasonably calculated to lead
to the discovery of admissible evidence.’” Id. (quoting Wiwa v. Royal Dutch Petrol. Co., 392 F.3d
812, 820 (5th Cir. 2004)). When a party withholds information otherwise discoverable by claiming
that the information is privileged or subject to protection as trial-preparation material, the party
must: “(i) expressly make the claim; and (ii) describe the nature of the documents,
communications, or tangible things not produced or disclosed – and do so in a manner that, without
revealing information itself privileged or protected, will enable other parties to assess the claim.”
FED. R. CIV. P. 26(b)(5)(A).

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After a party has attempted in good faith to obtain discovery without court action, that party
may move for an order compelling disclosure or discovery. FED. R. CIV. P. 37(a)(1). The party
resisting discovery must show how each discovery request is not relevant or otherwise
objectionable. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir.
1990). “The Court must balance the need for discovery by the requesting party and the relevance
of the discovery to the case against the harm, prejudice or burden to the other party.” Cmedia, LLC
v. LifeKey Healthcare, LLC, 216 F.R.D. 387, 389 (N.D. Tex. 2003). “A trial court enjoys wide
discretion in determining the scope and effect of discovery.” Sanders v. Shell Oil Co., 678 F.2d
614, 618 (5th Cir. 1982).
III. Analysis
Plaintiffs contend that this discovery dispute centers on “Plaintiffs’ request for information and
documents relating to ‘Title data,’” defined as follows:
As used herein, “Title” refers to a Blizzard video game title that
Blizzard distributed in whole or in part using BitTorrent or Peer-toPeer technology, as those terms are defined in Ex. A, Plaintiffs First
Set of Interrogatories to Blizzard, at 4-5, Plaintiffs’ First Set of
Requests for Production. “Title data” is the data associated with
each title including the game files or data, updates, patches, and
hotfixes.
Dkt. 130 at 2 & n.1. Plaintiffs seek information and documents in four categories spanning several
discovery requests, and also contend that Blizzard’s production is insufficient as to certain
individual requests. In addition, Plaintiffs raise issues related to privilege and alleged spoliation.
Blizzard responds that it has produced the source code for its accused peer-to-peer distribution
systems, as well as responsive documents for the majority of the categories of information
Plaintiffs seek, with the exception of financial information regarding its video games. Blizzard
contends that Plaintiffs’ request for financial information should be denied “because Plaintiffs
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have not identified any theory under which such information is relevant or that Plaintiffs would be
permitted to present such information to the jury.” Dkt. 135 at 4. Blizzard argues that its games
are not accused of infringement and not functionally linked to the file distribution system. Id. at 5.
The Court addresses in turn the issues raised in Plaintiffs’ motion to compel.
A. Backup Tapes
This lawsuit was filed on August 22, 2014. The accused peer-to-peer functionality of
Blizzard’s game distribution system was implemented at least eight years earlier, in 2006. Dkt. 135
at 4, 6. All use ceased in July 2016; Blizzard now distributes its games entirely by content delivery
networks (“CDNs”) rather than peer-to-peer. Id.
Plaintiffs argue that Blizzard “has been in litigation regarding BitTorrent” since August 2014
in this case and May 2013 in another case, Parallel Networks v. Blizzard, 1:13-cv-00826 (D. Del.
2013). Nonetheless, Plaintiffs contend, Blizzard “allowed its computer systems to destroy relevant
information on data distribution” and “appears to have destroyed such files between August 2014
and July 2016.” Dkt. 139 at 3. Blizzard responds that:
the vast majority of the data that Plaintiffs seek—server logs
generated from 2004 to the filing of this lawsuit in August 2014—
were deleted before this litigation was filed as part of Blizzard’s
normal data log retention policy. Because the vast majority of the
data Plaintiffs seek was overwritten prior to the institution of this
lawsuit, Blizzard was under no obligation to preserve it and cannot
be faulted that the pre-lawsuit data is not available
Dkt. 145-1 at 3. Blizzards admits, however, that it
does possess some backup tapes that contain some raw server log
data, and those logs might contain some raw information of
snapshots regarding the amount of data downloaded from CDNs and
shared via peer-to-peer, but processing that data would be extremely
burdensome and expensive, without any certainty that the data
sought exists in those logs.
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Dkt. 135 at 7 n.2. Plaintiffs ask the Court to compel Blizzard to search the backup tapes, arguing
that Blizzard “must be compelled to give everything it has in its possession, make every effort to
restore lost files, and failing that, be found to have spoliated critical evidence during the pendency
of this lawsuit.” Dkt 139 at 3-4.
In a sealed declaration (the “Yaney Dec.”), John Yaney, Blizzard’s Director of Engineering,
describes the steps that would be necessary to pull the data1 from the tapes, estimating that the
process “could take between 100-500 man-hours without any certainty that the logs contain the
information sought.” Dkt. 136-1 ¶¶ 7-8. Blizzard also points out that it produced “a document
summarizing the data usage around August 2014.” Dkt. 145-1 at 3. The summary shows that 76%
of Blizzard’s users get 100% of data from CDNs and 93% of users get more than 90% of the data
from CDNs. Id. In addition, Blizzard produced approximately seven months of server logs from
2015, along with a summary of the data showing that the total contribution of peer-to-peer
technology to data distribution for its modern games, such as World of Warcraft, was less than
3%. Id. at 3-4. Blizzard argues that its use of peer-to-peer technology during the other fifteen
months after this case was filed “can be reasonably approximated from the data that has been
produced.” Id. at 4.
Pursuant to Rule 26(b)(1), parties may obtain discovery that is relevant 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.

Yaney stated that this information pertained to “a one-month snapshot,” Dkt. 136-1 ¶ 7, but Blizzard’s
counsel clarified at oral hearing that this estimate covers all data Plaintiffs seek.
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Similarly, Rule 26(b)(2)(B) provides that: “A party need not provide discovery of electronically
stored information from sources that the party identifies as not reasonably accessible because of
undue burden or cost.”
Blizzard contends that it would be unduly burdensome to process the backup tapes, but did not
provide a cost estimate to do so. Instead, Blizzard relies on its evidence that attempting to retrieve
the data could take up to 500 man-hours, with no certainty that the logs contain the information
sought. With respect to whether the discovery would be proportional to the needs of the case,
Plaintiffs contend that the range of damages in this case is $30 million to $75 million.
In light of the considerations under Rule 26(b), particularly the importance of the discovery in
resolving the issues, the Court finds that the electronically stored information from Blizzard’s
backup tapes is not reasonably accessible because of undue burden, and that the burden or expense
of the proposed discovery outweighs its likely benefit. Blizzard has shown that the data Plaintiffs
seek can be reasonably approximated from the data that has been produced. Therefore, Plaintiffs’
request that the Court compel Blizzard to search the backup tapes is DENIED.
B. Title-Specific Data
The Court next considers Plaintiffs’ arguments with respect to discovery of Title data, using
the categories identified in Plaintiffs’ motion. Dkt. 130 at 2. These arguments appear to pertain to
portions of Interrogatory Nos. 4, 7, and 8 and Request for Production No. 8, although Plaintiffs
have not clearly identified the relevant request in each instance.
1. Amount of Title Data (in GBs) that Blizzard Distributed Using Content Delivery
Networks (CDNs)
Blizzard does not object to producing this information and states that it has searched for and
produced the data it possesses regarding CDN distribution. This includes a spreadsheet that lists
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the amount of data distributed by CDNs from April 2009 to the present. Dkt. 135 at 6. Plaintiffs
contend that the documents produced “contradict other data Blizzard produced in this case and are
facially incomplete.” Dkt. 130 at 3. Because Blizzard states that it has produced all responsive data
it possesses, Plaintiffs’ motion is DISMISSED AS MOOT regarding Title data distributed by
CDNs as to Request for Production No. 8 and Interrogatory Nos. 4, 7, and 8.
2. Amount of Title Data (in GBs) that Blizzard Has Distributed Using BitTorrent or
Peer-to-Peer Technology
Plaintiffs contend that the amount of Title data Blizzard distributed using BitTorrent or peerto-peer technology is relevant to infringement and damages “because the Title data is the ‘data’
accessed and managed according to the Accused Method.” Dkt. 130 at 4. Blizzard does not object
to producing this information, asserting that it has searched for and produced all the information it
possesses regarding peer-to-peer distribution. Blizzard states that it does not possess information
regarding the total amount of peer-to-peer data distributed, “as this was not information that
Blizzard maintained in the ordinary course of its business.” Dkt. 135 at 6-7 (citing Yaney Dec.,
Dkt. 136-1 ¶ 6) (sealed). Blizzard does have, and has produced, “certain snapshots of peer-to-peer
data distributed” during the relevant time period. Id. at 7. Plaintiffs reply that this data covers only
a single month in 2015. Dkt. 139 at 3. Because Blizzard states that it already has produced all
responsive data it possesses, Plaintiffs’ motion is DISMISSED AS MOOT as to the amount of
Title data Blizzard has distributed using BitTorrent or peer-to-peer technology.
C. File or Data Sizes Corresponding to Each of Blizzard’s Titles, Including the Amount of
Data Corresponding to Each Original Game Distribution, Update, Patch, and Hotfix
Plaintiffs argue that this information “is relevant to infringement and Plaintiffs’ damages
because (a) it shows Blizzard’s use of the Accused Method by type of data, and (b) it can be used
to estimate the total amount of data that Blizzard distributed using the Accused Method.” Dkt. 130
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at 4. This appears to be the information sought in Plaintiffs’ Interrogatory No. 8. Blizzard did not
address this request in its briefing, but in response to Interrogatory No. 8, it stated that it “will
produce, to the extent it exists, documents showing the amount of data distributed using BitTorrent
or Peer to Peer Technology versus data distributed through other means for its products distributed
in part through the use of BitTorrent or Peer to Peer Technology.” Dkt. 131-1 at 19 (sealed).
Because the data Blizzard stated that it would produce appears to satisfy Plaintiffs’ request for the
amount of data distributed “using the Accused Method,” Plaintiffs’ motion is DENIED as to this
request.
D. Blizzard’s Revenues, Costs, Units Sold (Including Subscription Information) Relating to
Titles, Including Subscription and Other Revenues
The financial information Plaintiffs seek appears to pertain to Interrogatory No. 7 and Request
for Production No. 8. Plaintiffs argue that: “Financial and sales information relating to each
Blizzard Title is relevant to Plaintiff’s damages under Georgia-Pacific Factor No. 62 as collateral
sales or functionally related to infringement and convoyed sales.” Dkt. 130 at 4. Plaintiffs also
assert that the data may be relevant to Georgia-Pacific Factor No. 11, the extent and value of the
infringer’s use of the Accused Method. Id. at 4 n.5. Finally, Plaintiffs argue that “if Blizzard
believes the title-specific financial information provided is used improperly in a damages analysis,
it can challenge that issue in a Daubert motion.” Dkt. 139 at 5.
As stated, Blizzard contends that the allegedly infringing peer-to-peer functionality was never
used when Blizzard’s games were played; instead, it was used optionally only during distribution

“The effect of selling the patented specialty in promoting sales of other products of the licensee; that
existing value of the invention to the licensor as a generator of sales of his non-patented items; and the
extent of such derivative or convoyed sales.” Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp.
1116, 1120 (S.D.N.Y. 1970), modified by Georgia-Pacific Corp. v. U.S. Plywood-Champion Papers, Inc.,
446 F.2d 295 (2d Cir. 1971).
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of the files. The delivery method of its video games, Blizzard argues, “is disconnected from the
value of the title.” Dkt. 135 at 10. In other words, “how Blizzard’s video games are distributed
does not affect, and is not functionally related to, the video games’ operation and success.” Id.
Therefore, Blizzard argues, financial information regarding its video game titles and subscriber
base is irrelevant to the damages at issue, and the burden of requiring Blizzard to produce such
information is not proportional to the needs of the case. Id.
The Court finds that, for purposes of discovery, Plaintiffs have made a sufficient preliminary
showing of relevance under Georgia-Pacific Factor 6. Whether or not the financial information
Plaintiffs request ultimately is admissible at trial, such information may be relevant to Plaintiffs’
damages theory and therefore is discoverable. Plaintiffs’ motion to compel is GRANTED with
respect to Interrogatory No. 7 and the summary Title financial information identified in Request
for Production No. 8.
E. Remaining Requests
Plaintiffs also contend that Blizzard has failed to conduct a reasonable search for documents
responsive to the discovery requests addressed below. Dkt. 130 at 11.
1. Request for Production No. 28 – Documents relating to the monitoring, tracking,
analysis, review, or reporting of the computer systems implementing Blizzard’s
BitTorrent-related functionalities
Blizzard states that it has produced the information it possesses regarding the amount of data
transferred through CDNs or peer-to-peer monitoring and all documents it located regarding the
analysis of that data, but does not possess other data regarding the monitoring of those computer
systems. Plaintiffs’ motion therefore is DISMISSED AS MOOT as to Request for Production
No. 28.

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2. Request for Production No. 8 – Documents relating to network topologies or
schema for Blizzard’s distribution of Title data
Blizzard states that it
has produced the source code that is used by users to then access the
file pieces from CDNs or from peers over networks outside of
Blizzard. Plaintiffs do not provide any explanation of the relevance
of any internal network topologies at Blizzard, which would cover
extensive data concerning the in-game operation of Blizzard’s
online games and that have nothing to do with the accused file
distribution functionality.
Dkt. 135 at 12. Because Blizzard represents that the relevant data has been produced, Plaintiffs’
motion is DISMISSED AS MOOT as to this portion of Request for Production No. 8.
3. Requests for Production Nos. 6 and 25 – Documents relating to Blizzard’s
adoption of BitTorrent in Amazon Web Services (AWS)
Blizzard responds that it does not use BitTorrent in AWS (Amazon Web Services). Blizzard
further states that its adoption of peer-to-peer functionality occurred over eight years before this
suit was filed, and it has produced any responsive documents that it found, but no documents exist
responsive to Request for Production No. 6. Therefore, Plaintiffs’ motion is DISMISSED AS
MOOT as to Requests for Production Nos. 6 and 25.
4. Request for Production No. 27 – Surveys, studies, memoranda, reports, or analysis
regarding customers’ use of BitTorrent
Blizzard also represents that it “has produced responsive documents and it has not withheld
any documents on this topic.” Therefore, Plaintiffs’ motion is DISMISSED AS MOOT as to
Request for Production No. 27.

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5. Requests for Production Nos. 1 and 3 – Documents regarding Blizzard’s
implementation of BitTorrent and BitTorrent support, training documents for
systems Blizzard personnel with responsibilities for maintaining the Blizzard
software and systems at issue, network diagrams, implementation documents,
technical specifications, and other technical documentation
Blizzard states that the “definitive evidence of Blizzard’s implementations of BitTorrent is in
the code itself, which has been produced, but Blizzard also produced all other documents it located
regarding the implementations. Blizzard does not have any training documents regarding the
BitTorrent functionality.” Because Blizzard represents that it has produced all responsive
documents located, Plaintiffs’ motion is DISMISSED AS MOOT as to Requests for Production
Nos. 1 and 3.
F. Privilege and Identification of Custodians and Search Methods
Finally, Plaintiffs argue that Blizzard refuses to share the identities of the custodians and
network locations it has searched for responsive documents, “unjustifiably asserting privilege.”
Dkt. 130 at 3. They ask the Court to compel Blizzard “to identify the custodians and network
locations searched for responsive documents, and whether its search was human or technology
assisted.” Id. at 11. Blizzard complains that Plaintiffs also have not identified the custodians of the
documents it has produced, and contends that “its document collection efforts are protected work
product.” Dkt. 135 at 12 n.4.
Blizzard offers no support for its position that the custodians and locations of produced
documents are privileged under the work product doctrine. Plaintiffs, however, rely on two recent
cases from this Court: Finjan, Inc. v. SonicWall, Inc., No. 1:20-CV-0652-RP, 2020 WL 3620428,
at *2 (W.D. Tex. July 2, 2020) (ordering identification of databases and custodians searched), and
Roque v. City of Austin, No. 1-17-CV-00932-LY, 2018 WL 5848988, at *6 (W.D. Tex. Nov. 7,
2018) (ordering defendant to search communications after agreement on appropriate custodians).
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Plaintiffs’ motion is GRANTED to the extent that Blizzard is ORDERED to identify the
custodian and location for each document in its production, and also to identify all custodians and
locations searched in response to Plaintiffs’ discovery requests. As agreed by Plaintiffs at the oral
hearing, Plaintiffs also are ORDERED to identify the custodian and location for each of its
produced documents.
IV. Conclusion
Plaintiffs’ Motion to Compel Answers to Interrogatories and Production of Documents
(Dkt. 130) is GRANTED IN PART AND DENIED IN PART, as detailed above. The parties
have until August 5, 2021 to comply with this Order. All relief not expressly granted herein is
denied.
It is FURTHER ORDERED that this case be removed from the Magistrate Court’s docket
and returned to the docket of the Honorable Lee Yeakel.
SIGNED on July 21, 2021.

SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE

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