Peterson v. Rockstar Games Inc.

Full title: DARRYL PETERSON, Plaintiff, vs. ROCKSTAR GAMES, INC., et al., Defendants

Court: United States District Court, D. Utah, Central Division

Date published: Dec 20, 2004

Case No. 2:03 CV 613 TC (D. Utah Dec. 20, 2004)

Opinion

Case No. 2:03 CV 613 TC.

December 20, 2004

ORDER

DAVID NUFFER, Magistrate Judge (Part-time)

Plaintiff has moved to re-open discovery¹ and separately asks for leave to take a deposition of Remedy Entertainment, Ltd. (Remedy).² Discovery in this case has been fractious, with abundant grievances on all sides, and numerous interventions by the court.³ Discovery was set to end September 24, 2004,⁴ but on the eve of that deadline, September 15, 2004, discovery was extended for limited purposes.⁵ Discovery was extended to permit taking of depositions that were already in contemplation, and written discovery from two Defendants (Remedy and Maxcorp, Ltd.) who were recently served. The magistrate judge declined to otherwise extend discovery because it appeared the Plaintiff had not been as diligent as he might in serving all parties, which would have put them into the case so that discovery could proceed against them.

1 Docket no. 149, filed October 20, 2004.

2 Docket no. 137, filed October 13, 2004.

3 Docket no. 55, filed March 3, 2004; docket no. 75, filed May 3, 2004; docket no. 81, filed May 21, 2004 (and docket no. 83, filed May 28, 2004); docket no. 92, filed June 25, 2004 (and docket no. 94, filed July 1, 2004); docket no. 125, filed September 15, 2004 (and docket no. 132, filed October 1, 2004, as well as docket no. 176, filed November 9, 2004); docket no. 156, filed October 27, 2004 (and docket no. 182, filed under seal November 15, 2004).

4 Scheduling Order, docket no. 51, filed February 27, 2004, at 2.

5 Docket no. 125, filed September 15, 2004 (and docket no. 132, filed October 4, 2004).

Motions to dismiss Remedy and Maxcorp for lack of jurisdiction will be heard in January 2005,⁶ while recently filed motions for summary judgment⁷ are not yet fully briefed. Trial is set for late March 2005.⁸

6 Docket no. 154, filed October 22, 2004.

7 Docket nos. 185, 187 and 189, filed November 22, 2004.

8 Scheduling Order at 2.

Deposition from Remedy

Plaintiff claims Remedy is a co-participant in the creation and marketing of a video game which misappropriates Plaintiff's pro wrestler persona "Max Payne." Remedy was only recently served. The court's recent but limited extension of the discovery deadline permitted Plaintiff to obtain written discovery from Remedy.⁹ In the hearing which resulted in the extension, the court indicated a deposition of Remedy might be permitted upon further motion.¹⁰

Plaintiff claims he recently learned that Remedy actually provided the content for a website maintained by Apogee.¹¹ Plaintiff claims he was "stonewalled" in deposition of Apogee's webmaster,¹² making a deposition of Remedy necessary. It is true that obstructive tactics were used in the deposition of Apogee's webmaster.¹³ That deposition will be retaken, but the information received does show that Remedy would have knowledge regarding the web site content and the ability to purchase games from the website, which could be important information for Plaintiff. Therefore, the magistrate will permit a 30(b)(6) deposition of Remedy.¹⁴

11 Memorandum in Support of Motion to take Deposition of Remedy Entertainment, Ltd., docket no. 138, filed October 13, 2004, at 2.

12 Id. at 3.

13 Docket no. 156, filed October 27, 2004.

14 Plaintiff also seeks an order that the deposition be set in Salt Lake City because "Remedy's counsel sought to obstruct the plaintiff from obtaining the information" in the Apogee webmaster's deposition. Memorandum in Support of Motion to Take Deposition of Remedy Entertainment Ltd., docket no 138, filed October 13, 2004, at 4. The magistrate judge declines to inflict a sanction on Remedy for counsel's conduct in an Apogee deposition, which is already subject of a separate sanctions order.
Remedy claims that the information sought in this deposition is not relevant to issues in the case (Defendant Remedy's Response to Plaintiff's Motion to Take Deposition of Remedy Entertainment, Ltd., docket no. 152, filed October 20, 2004 at 3-4 and 8-9), but the magistrate judge is unable to say a 30(b)(6) deposition will not be helpful. Certainly, such depositions are regarded as essential and commonplace.

Re-Open Discovery

Plaintiff also seeks, again, to re-open discovery against all defendants. A similar motion was denied three months ago.¹⁵ However, now Plaintiff offers some additional information:

Remedy recently disclosed that it was aware of the persona "Max Payne" in March 1998. Previously, Defendants said they were not aware of that persona until contacted by Plaintiff in 2002.¹⁶ Plaintiff claims that if he had known this fact earlier — before the discovery cutoff — he would "have noticed [depositions for] different witnesses"¹⁷ and "Plaintiff's discovery would have commenced with Remedy"¹⁸ rather than deferring his efforts toward them until the end of the discovery period.

Apogee has not produced any emails for the period May through August 1997, which Plaintiff alleges is the time a committee of two persons chose the name "Max Payne" for their video game.¹⁹ Plaintiff asserts that email was the principal means of communication on this topic and that one the members of this commitee was not even asked by Apogee's counsel to search for emails relating to selection of the game name.²⁰

16 Memorandum in Support of Motion to Reopen Discovery (Supporting Memorandum), docket no. 150, filed October 20, 2004, at 2. The October 12, 2004, letter from Remedy's counsel in which this revelation was made is attached at Exhibit B to the Supporting Memorandum.

17 Reply Memorandum in Support of Motion to Reopen Discovery (Reply Memorandum), docket no. 181, filed under seal November 12, 2004, at 5.

18 Reply Memorandum at 3.

19 Supporting Memorandum at 3.

20 Reply Memorandum at 7.

Emails

Apogee says that the emails are missing because of changes in technology. "Apogee changed its email provider in 1997. As a result of that change, Apogee lost all of its emails prior to August 1, 1997."²¹ Apogee explains that emails which it produced, which are dated prior to August 1, 1997, were provided to it by Remedy at a time when Remedy was not a party. Plaintiff says there is no explanation why the emails provided by Remedy end in April 1997, and do not continue until August. But Apogee and Remedy claim Plaintiff has not yet examined many emails produced recently by Remedy in its own responses to discovery.²² Plaintiff has not demonstrated the "good cause" needed to reopen discovery as to the emails.

Date of Knowledge of Plaintiff and His Use of the Name Max Payne

Defendants other than Remedy contend they were not aware of Plaintiff or his use of the contested name until July 2002 when they received a letter from Plaintiff's counsel, and that Remedy's recent disclosure does not change the facts as to them.²³ The court agrees; that disclosure of a new fact of knowledge by one party does not necessarily change the landscape as to all other parties to the extent that new discovery should be permitted.

23 Declaration of Kenneth Selterman . . ., docket no. 164, filed November 2, 2004, at 2. Response of Rockstar Games . . ., docket no. 163, filed November 2, 2004, at 2. Apogee/Remedy Response at 3, 7-8.

Plaintiff also asks the court to order that knowledge of "Plaintiff's prior use of the name Max Payne as of March 1998" be imputed to all Defendants.²⁴ There is no logical reason to make this inference.

24 Reply Memorandum at 9.

ORDER

IT IS HEREBY ORDERED that Plaintiff's motion to take the deposition of Remedy²⁵ is GRANTED. Plaintiff may take the deposition of Remedy Entertainment, Ltd. Counsel shall cooperate so that this deposition may be taken before the 14^th of January, 2005.

25 Docket no. 137, filed October 13, 2004.

IT IS FURTHER ORDERED that the motion to reopen discovery²⁶ is DENIED.

26 Docket no. 149, filed October 20, 2004.