Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 1 of 17 1 Robert A. Weikert (Bar No. 121146) rweikert@nixonpeabody.com 2 Dawn N. Valentine (Bar No. 206486) dvalentine@nixonpeabody.com 3 NIXON PEABODY LLP One Embarcadero Center, 32nd Floor 4 San Francisco, California 94111-3600 Tel: (415) 984-8200 5 Fax: (415) 984-8300 6 David L. May (appearance pro hac vice) dmay@nixonpeabody.com 7 Jennette E. Wiser (appearance pro hac vice) jwiser@nixonpeabody.com 8 NIXON PEABODY LLP 799 9th Street NW 9 Washington, DC 20001-4501 Tel: (202) 585-8000 10 Fax: (202) 585-8080 11 Deanna R. Kunze (appearance pro hac vice) dkunze@nixonpeabody.com 12 Jason T. Kunze (appearance pro hac vice) jkunze@nixonpeabody.com 13 NIXON PEABODY LLP 70 West Madison Street, 35th Floor 14 Chicago, IL 60602 Tel: (312) 977-4400 15 Fax: (312) 977-4405 16 Attorneys for Stardock Systems, Inc. 17 UNITED STATES DISTRICT COURT 18 NORTHERN DISTRICT OF CALIFORNIA 19 OAKLAND DIVISION 20 21 STARDOCK SYSTEMS, INC., Case No. 17-cv-07025-SBA 22 Plaintiff, JOINT STATUS REPORT AS ORDERED BY THE COURT 23 vs. Date: February 14, 2019 24 PAUL REICHE III and ROBERT Time: 3:00 p.m. FREDERICK FORD, Telephone No.: (510) 879-3550 25 Defendants. 26 27 AND RELATED COUNTERCLAIM AND CROSS-COMPLAINT 28 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 2 of 17 1 Pursuant to the Court’s February 8, 2019 Order, the Parties to this Action submit the 2 following Status Report. 3 A. Discovery Conducted To Date 4 1. Written Discovery 5 a) Stardock’s Written Discovery and Responses 6 Discovery Service Date 7 Stardock’s Initial Disclosures March 15, 2018 8 Stardock’s Supplemental 9 Initial Disclosures July 20, 2018 1st set of 26 interrogatories to Paul Reiche March 2, 2018 10 1st set of 121 document requests to Paul Reiche March 2, 2018 11 1st set of 121 document requests to Fred Ford March 2, 2018 12 2nd set of 50 document requests to Paul Reiche July 9, 2018 13 2nd set of 50 document requests to Fred Ford July 9, 2018 14 3rd set of 35 document requests to Paul Reiche August 15, 2018 15 3rd set of 35 document requests to Fred Ford August 15, 2018 16 17 Response and objections to Reiche and Ford’s first set of 74 document requests April 27, 2018 18 Response to first set of 15 interrogatories 19 from Paul Reiche April 27, 2018 20 Supplemental responses to 15 interrogatories 21 from Paul Reiche July 13, 2018 22 Response and objection to Reiche and Ford’s second set of document requests numbered 75-76 August 8, 2018 23 24 Response and objection to Reiche and Ford’s third set of document requests numbered 77-111 Sept. 24, 2018 25 26 27 28 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY -2- THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 3 of 17 1 b) Valve’s Written Discovery 2 Discovery Service Date 3 Initial Disclosures December 21, 2018 4 1st set of 14 interrogatories to Reiche December 21, 2018 5 1st set of 14 interrogatories to Ford December 21, 2018 6 1st set of 14 requests for documents to Reiche December 21, 2018 7 1st set of 14 requests for documents to Ford December 21, 2018 8 c) Mr. Reiche and Mr. Ford’s Written Discovery 9 10 Item of Written Discovery Status 11 Requests for Production to Stardock Systems, Inc. Completed 12 Special Interrogatories to Stardock Systems, Inc. Completed 13 Requests for Admissions to Stardock Systems, Inc. Forthcoming 14 15 Requests for Production to Valve Corporation Completed 16 Special Interrogatories to Valve Corporation. Forthcoming 17 Requests for Admissions to Valve Corporation Forthcoming 18 Requests for Production to GOG Served, Responses forthcoming 19 20 Special Interrogatories to GOG Forthcoming 21 Requests for Admissions to GOG Forthcoming 22 Subpoena for Documents to Third-Party 505 Responses and Objections Received 23 Games (U.S.), Inc./505 Games Interactive, Inc. January 30, 2019 24 25 Subpoenas for Documents to Third-Party Some documents have been produced, 26 Advanced Micro Devices, Inc. second subpoena objections and 27 responses received on January 31, 2019. 28 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY -3- THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 4 of 17 1 Subpoena for Documents to Third-Party CD Responses and Objections Received 2 Projekt, Inc. April 9, 2018. 3 Subpoena for Documents to Third-Party Edelman Responses and Objections Received 4 Holdings, Inc./Daniel J. Edelman, Inc. January 28, 2019. 5 6 Subpoena for Documents to (then) Third-Party Responses and Objections Received 7 GOG Limited April 9, 2018. 8 Subpoena for Documents to Third-Party Humble Documents produced January 28, 2019. 9 Bundle, Inc. 10 11 Subpoena for Documents to Third-Party Nintendo Response that no records exist. 12 of America, Inc. 13 Subpoena for Documents to Third-Party Perella Objections received on February 4, 14 Weinberg Partners 2019. 15 Subpoena for Documents to Third-Party Gary E. Responses and Objections received 16 17 Perlmuter November 27, 2018, Documents 18 produced on February 4, 2019. 19 Subpoena for Documents to Third-Party Tinsley Response due February 2019. 20 PR LLC 21 22 23 d) GOG’s Written Discovery 24 Discovery Service Date 25 Initial Disclosures February 6, 2019 26 Responses and objections to Reiche and Ford’s Outstanding, due February 22, 20191 27 1 Reiche and Ford served their document requests on GOG via mail on January 18, 2019—before 28 GOG had even filed their responsive pleading and only 11 days after service of the Summons and Second Amended Counterclaim. Despite GOG’s prior significant production as a non-party, and 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY -4- THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 5 of 17 1 Requests for Production of Documents, Set One 2 Special Interrogatories TBD2 3 Requests for Production of Documents TBD 4 5 2. Document Production 6 Stardock’s Position 7 Stardock has produced approximately 61,657 pages of documentation (including 8 approximately 30,000 audio files). 9 Valve’s Position 10 Valve has produced approximately 1,197 pages of documentation. Third parties have also 11 12 produced documents, including Gary Perlmuter (2,582 pages of documentation); GOG (prior to 13 being named as a counter-defendant) (1,189 pages of documentation); Erol Otus (approximately 14 21 pages); Humble Bundle (25 pages); Activision (approximately 128 pages). 15 Reiche & Ford’s Position 16 Reiche & Ford have produced 3205 documents totaling 9352 pages. Reiche & Ford’s 17 production is substantially complete. 18 19 GOG’s Position 20 Prior to being brought into this case by Reiche and Ford, GOG produced 1,189 pages of 21 documents between May and July 2018 in response to a third-party subpoena issued by Reiche 22 and Ford. Despite GOG’s prior significant production as a non-party, Reiche and Ford also 23 served document requests on GOG on January 18, 2019. GOG is currently conducting a 24 25 despite the fact that these Requests are premature under the Federal Rules, GOG will timely respond to these Requests and produce any non-privileged documents in its possession, custody 26 and control which have not already been produced. See “GOG’s Position” on Document Production on page 4. 27 2 GOG is waiting to receive and review the various discovery requests and responses that have been exchanged between Stardock, Valve, Reiche and Ford so that it can determine what 28 additional discovery requests GOG will propound and on what party or parties. 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY -5- THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 6 of 17 1 reasonable, diligent search to locate additional documents, if any, responsive to Reiche and 2 Ford’s first set of requests for production of documents. GOG will produce any non-privileged, 3 responsive documents as soon as practicable. 4 3. Subpoenas 5 Third Party subpoenas have been served by Stardock on the following persons and 6 entities:  Singer Associates, Inc. 7  Activision Publishing, Inc. 8  Toys for Bob, Inc.  Rob Dubbin 9  Robert Leyland  Matthias Genser 10  Greg Johnson 11  George Barr  Erol Otus 12 [Defendants did not provide the list of third-party subpoenas served by them.] 13 14 To date, GOG has not served any third-party subpoenas. 15 4. Depositions 16 The following depositions have been conducted to date: 17 a) Valve Corporation (through 2 designated witnesses, Dawn Dempsey and Adam Klaff) 18 b) Kevin Unangst—Stardock witness c) Erol Otus—third party witness 19 d) Robert Leyland—third party witness 20 e) Leonard Robel—third party witness f) Derrick Paxton—Stardock witness 21 g) Brad Wardell—Stardock witness h) Patrick Shaw—Stardock witness 22 i) Gary Perlmuter—third party witness (scheduled for February 14, 2019) 23 Following are the depositions that are currently scheduled: 24 a) Fred Ford—Party witness (scheduled for February 26, 2019) b) Paul Reiche III—Party witness (scheduled for March 14, 2019) 25 c) Rob Dubbin—third party witness (tentatively scheduled for March 1, 2019) 26 Parties are also negotiating deposition dates for third party witnesses Matthew Genser and 27 Gregory Johnson. Stardock has subpoenaed the deposition of attorney Mark Palmer as well. 28 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY -6- THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 7 of 17 1 Defendants have objected to the deposition of Mr. Palmer. If the Parties are not able to reach an 2 agreement on this issue, then they will undergo the procedures identified in Judge Westmore’s 3 standing order to resolve the dispute. 4 At this time, GOG intends on taking the depositions of Fred Ford and Paul Reiche III. GOG 5 reserves its right to take depositions of other parties or third party witnesses after it has reviewed 6 the discovery in this case and also has completed its own discovery. 7 Reiche & Ford’s Position 8 9 Reiche & Ford strenuously object to Stardock’s abusive attempts to depose Mark Palmer, 10 litigation counsel for Reiche & Ford. Stardock has not offered any justification for deposing an 11 attorney of record in this case. 12 Reiche & Ford have been awaiting deposition dates for Henry Pailing since December 13, 13 2018. 14 15 B. Outstanding Discovery And Timeframe for Completion 16 1. Stardock and Valve’s Position 17 In addition to the additional depositions identified above, Stardock and Valve identify the 18 following outstanding discovery and timeframe for completion. SperoSpero 19 a) Defendant’s Production of Documents to be Produced in response to Valve’s 20 First Document Requests. 21 Defendants have indicated that they will produce documents no later than March 4, 2019 22 in response to Valve’s first set of document requests. Valve, however, will need those documents 23 before February 26, 2019, when Mr. Ford’s deposition is scheduled to take place (which counsel 24 for Defendants verbally indicated would happen at last Friday’s conference with Magistrate Judge 25 Westmore). If Defendants will not produce those documents before Mr. Ford (and Mr. Reiche’s) 26 deposition, then Valve will seek judicial assistance from Magistrate Judge Westmore. Valve 27 expects that this production will occur or the matter resolved on or before February 20, 2019. 28 b) Defendant’s amended responses to Valve’s first set of interrogatories. 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY -7- THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 8 of 17 1 Valve has objected to Defendants’ response to Valve’s first set of interrogatories to them, 2 and has written a meet and confer letter requesting that Defendants supplement their deficient 3 responses. Valve expects Defendants to serve amended responses on or before February 22, 4 2019. 5 c) Collection of all documents subpoenaed by all parties to the litigation. 6 Stardock and Valve have not received all documents produced by third parties in response 7 to subpoenas from Defendants in this litigation. Stardock and Valve expect to receive all 8 documents subpoenaed by Defendants on or before February 20, 2019 9 d) Stardock’s supplemental production of emails. 10 As previously reported to all parties and the Court, Stardock expects to finalize 11 supplementation of its production of emails by March 8, 2019. 12 e) Various Discovery Disputes 13 Stardock and Valve and Defendants dispute certain discovery issues that may need 14 judicial intervention in the immediate or near term: (1) Resolution of request that Mr. Reiche and Mr. Ford be sequestered in between 15 their depositions; 16 (2) Confirmation from Defendants that they have produced all responsive communications between them (i.e., between Mr. Reiche and Mr. Ford); 17 (3) Production of an interview given by Mr. Erol Otus, referenced in his deposition and responsive to the subpoena served on Mr. Otus. 18 (4) Defendant/Counterclaimant’s specific identification of every element, aspect, character, or other object of “Origins,” or any related content, that they allege 19 infringes any of their alleged copyrights. Despite repeated requests, 20 Defendants/Counterclaimants have failed to identify with any specificity the elements of the “Origins” game—or any other creative work—that they 21 contend violates any of their alleged copyrights. Stardock and Valve will move to compel Defendants/Counterclaimant’s identification of the same if 22 necessary. (5) Exchange of privilege logs by all parties (Stardock and Valve made a proposal 23 to Messrs. Reiche and Ford on January 25 during a meet-and confer, and then a 24 further written proposal on January 31, but have not yet received a response). (6) Availability of certain extremely confidential and/or very large files (i.e. 25 internal builds of Origins) for examination (again, Stardock and Valve made a proposal, but have yet to receive a response). 26 Stardock and Valve anticipate that each of these disputes may be resolved by 27 approximately March 30, 2019. 28 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY -8- THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 9 of 17 1 In its February 8, 2019 Order, the Court requested that the parties specify whether the 2 addition of new parties justifies the extension of discovery deadlines as to all parties. Stardock 3 and Valve submit that the addition of Valve and the GOG Parties, in light of the claims asserted 4 against them, clearly justifies the extension of discovery deadlines. 5 Stardock, Valve, and the GOG Parties are now jointly accused of direct, contributory, and 6 vicarious copyright infringement, along with trademark infringement and other claims. (See 7 generally 2d. Am. Counterclaim.) First and foremost, at minimum, a brief discovery extension is 8 warranted because the Counter-Plaintiffs have not yet identified either: (1) any specific element 9 of any creative work that they assert is infringing any of their alleged registered copyrights; and 10 (2) how any of those alleged infringements is committed by which party, either directly, 11 vicariously, or contributorily. The identification of these positions by Counter-claimants is 12 essential to the resolution of this case, and neither Stardock nor Valve can finish discovery 13 (including identifying any necessary third-party witnesses or sources of documents) without both 14 receiving these contentions from Counter-Plaintiffs and then executing any discovery necessary 15 to disprove these claims. 16 Consolidating the discovery deadlines for all parties will help to efficiently move the 17 Action toward dispositive motion practice and, if necessary, trial. The adoption of varying 18 deadlines for the parties would result in parties moving towards dispositive motions and trial at 19 differing paces, which, is ultimately cumbersome and unworkable for the parties and the Court 20 alike, given the claims jointly asserted against Stardock, Valve, and the GOG Parties. 21 Other good cause exists to extend the discovery deadlines briefly in this case. As stated in 22 the underlying motion, this case has evolved from a relatively straight-forward trademark 23 infringement case into a six-party dispute implicating copyright infringement, allegations of 24 fraud, conversion, false advertising, interference claims and unfair business practices. The sheer 25 expanse of factual allegations as between the parties in this case justifies the continued discovery 26 deadlines, as all parties work to explore the basis of the allegations asserted against them. Also, 27 because a motion to dismiss still is pending against Stardock’s tortious interference claims, and 28 Stardock has a pending motion for leave to amend, a brief extension of the discovery cutoff is 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY -9- THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 10 of 17 1 warranted. 2 It is also worth noting this case is approximately 14 months old. The original parties to 3 the lawsuit (Stardock, Reiche, and Ford) initially produced documents and engaged in other 4 written discovery just a few months into the case. The amendment of the action in October 2018, 5 however, adding three parties and significantly changing the allegations against Stardock as to its 6 actions alleged to be in concert with those other parties. This is not a case that has been 7 languishing. Rather, this is a case that has increased steadily in complexity (and volume of 8 discovery) in a manner such that the parties have sought broad production of documents, multiple 9 subpoenas, and depositions beyond those anticipated at the outset of this Action. 10 Finally, the amount of additional time requested by Stardock and Valve is modest in light 11 of the above. Stardock and Valve are requesting that fact discovery close on May 15, 2019, less 12 than five months since the December 21, 2019 fact discovery deadline previously ordered by the 13 Court and approximately six (6) months after Valve filed its responsive pleading. Closing fact 14 discovery on May 15, 2019 would allow Stardock, Valve, and all the parties to this litigation to 15 exchange all the relevant documents and communication, conduct all relevant depositions, move 16 forward in assessing the pending claims after the challenges to the pleadings have been resolved, 17 and resolve this Action on its merits. 18 2. Reiche & Ford’s Position Reiche & Ford disagree with the narrative offered by Stardock, Valve, and GOG, but as it 19 20 is outside the scope of the order for this case management statement, no specific responses are 21 included here. 22 Item of Forthcoming Discovery Date for Completion 23 Deposition of Henry Pailing Unknown, no dates provided by opposing 24 counsel, but hoping to complete mid-March 25 26 Rule 30(b)6 Deposition of Stardock To be served soon, and completed mid-March. 27 Rule 30(b)6 Deposition of GOG To be served soon, and completed mid-March. 28 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY - 10 - THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 11 of 17 1 Further Written Discovery on Stardock, To be served soon, and completed mid-March. 2 Valve, and GOG 3 4 5 3. GOG’s Position 6 GOG was not served in this case until after the fact discovery cut-off had already passed. 7 GOG concurs with Stardock and Valve’s position, namely that: (a) there should be 8 consolidated discovery cut-off dates for all the parties to avoid piece-meal discovery and motion 9 practice; and (b) neither Mr. Ford’s nor Mr. Reiche’s depositions should go forward until all the 10 parties have the opportunity to review the documents Defendants are going to produce pursuant to 11 Valve’s document requests. Further, since GOG is being sued by Reiche and Ford in this matter, 12 GOG requests that their depositions do not go forward until GOG has the opportunity to review 13 all of Reiche and Ford’s discovery responses and also to propound its own discovery on Reiche 14 and Ford. In an effort to move this matter along, GOG requests that the Court include in any 15 Amended Scheduling Order a date certain by which Stardock, Valve, Reiche and Ford must 16 produce to GOG their discovery requests and responses that have already been propounded and 17 responded to in this case. Moreover, GOG requests that the Court order that depositions of GOG 18 employees or officers may not take place until GOG has the opportunity to review the parties’ 19 discovery and propound its own discovery so that it can adequately prepare its witnesses for their 20 depositions. 21 a) GOG’s Production of Documents Responsive to Reiche and Ford’s Document 22 Requests 23 As explained above, GOG is currently searching for additional documents, if any, 24 responsive to Reiche and Ford’s first set of requests for production of documents, and will 25 produce any non-privileged, responsive documents as soon as practicable. GOG anticipates that 26 its production will be complete by March 4, 2019. 27 28 b) GOG’s Collection and Review of Documents Produced by All Parties and 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY - 11 - THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 12 of 17 1 Third Parties 2 GOG has recently received (and is undertaking to review) the documents—nearly 75,000 3 pages (including approximately 30,000 audio files)—that were produced in discovery prior to 4 GOG’s addition as a party and supplemented in January and February 2019. GOG anticipates 5 that it could complete its review of the documents produced to date by March 15, 2019. 6 In addition, Stardock has indicated that it will be producing additional documents on or 7 before March 8, 2019. GOG anticipates that it could complete its review of these additional 8 documents by March 22, 2019. However, without knowing the magnitude of the additional 9 documents to be produced, it is difficult to determine a timeframe to complete this outstanding 10 discovery and, therefore, GOG must reserve the right to spend additional time reviewing these 11 documents should it be necessary. 12 c) GOG’s Collection and Review of All Parties’ Written Discovery Requests and 13 Responses 14 GOG has asked for, but has not yet received, all of the other parties’ discovery requests 15 and written responses. On February 12, 2019, GOG received: (1) Reiche and Ford’s responses to 16 Stardock’s second set of 50 document requests; (2) Reiche and Ford’s first set of document 17 requests to Stardock; (3) Stardock’s responses to Reiche and Ford’s first set of document 18 requests; (4) Reiche and Ford’s second set of document requests to Stardock; (5) Reiche and 19 Ford’s third set of document requests to Stardock; (6) Stardock’s responses to Reiche and Ford’s 20 third set of document requests; (7) Reiche’s first set of interrogatories to Stardock; (8) Stardock’s 21 responses to Reiche’s first set of interrogatories; (9) Stardock’s supplemental responses to 22 Reiche’s first set of interrogatories; (10) Reiche and Ford’s first set of document requests to 23 Valve; and (11) Valve’s responses to Reiche and Ford’s first set of document requests. 24 However, GOG still has not received: (1) Stardock’s responses to Reiche and Ford’s 25 second set of document requests; (2) Stardock’s first set of 121 document requests to Reiche and 26 Ford; (3) Reiche and Ford’s responses to Stardock’s first set of 121 document requests; (4) 27 Stardock’s second set of 50 document requests to Reiche and Ford; (5) Stardock’s third set of 35 28 document requests to Reiche and Ford; (6) Reiche and Ford’s responses to Stardock’s third set of 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY - 12 - THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 13 of 17 1 35 document requests; (7) Stardock’s 26 interrogatories to Mr. Reiche; (8) Mr. Reiche’s 2 responses to those 26 interrogatories; (9) Valve’s 14 document requests to Reiche and Ford; (10) 3 Reiche and Ford’s responses to Valve’s 14 document requests; (11) Valve’s 14 interrogatories to 4 Reiche and Ford; or (12) Reiche and Ford’s responses to Valve’s 14 interrogatories. GOG also 5 has not received Stardock, Valve, or Reiche and Ford’s initial disclosures. 6 In addition to reviewing the document productions, GOG also needs to see the written 7 requests and responses that have gone back and forth between the other parties to avoid 8 duplication and see what discovery needs to be supplemented as it pertains to GOG. 9 d) GOG Intends to Propound Discovery and Conduct Depositions 10 After reviewing all of the parties’ written discovery requests, responses, and documents, 11 GOG will be better able to determine what additional document requests and interrogatories it 12 needs to propound to Reiche and Ford. GOG anticipates that it will be able to serve document 13 requests and special interrogatories on Reiche and Ford by March 8, 2019. As long as Reiche and 14 Ford provide full and complete responses and documents within the time frame provided in Rules 15 33 and 34, GOG would have responsive documents by April 12, 2019, and would be in a position 16 to depose Reiche and Ford by May 10, 2019. 17 e) Good Cause Exists to Extend Discovery Deadlines 18 The Court entered the current scheduling order before GOG was a party. Indeed, the 19 discovery cutoff under the current scheduling order passed before GOG was served in this case. 20 Reiche and Ford only recently brought GOG into this case. In addition to claims for 21 copyright infringement, contributory copyright infringement, and vicarious copyright 22 infringement, Reiche and Ford have also asserted claims for breach of contract and fraud against 23 GOG. GOG is entitled to, and intends to, conduct its own discovery in connection with its 24 defense of those claims. GOG is mindful of avoiding duplicative discovery, which is why GOG 25 wants to review all previously-conducted discovery before serving its own discovery. However, 26 the fact that the other parties have already conducted nearly a year of discovery should not 27 operate to truncate GOG’s rights or ability to conduct its own discovery. 28 As described more fully above, GOG needs time to review the nearly 75,000 pages of 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY - 13 - THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 14 of 17 1 documents, and several rounds of written discovery that have already been served in this case. 2 More importantly, GOG needs time to conduct its own discovery and prepare for the depositions 3 of the parties that have asserted claims against GOG. 4 While GOG is hopeful that discovery will move quickly and efficiently without issues, in 5 the event discovery disputes arise, the discovery deadlines should allow sufficient time for GOG 6 to file a motion in accordance with Magistrate Westmore’s standing order. 7 In addition, the pleadings in this case are not settled. GOG recently responded to Reiche 8 and Ford’s Second Amended Counterclaim by challenging the sufficiency of the pleading (Dkt. 9 104). GOG’s motion to dismiss is currently scheduled to be heard on March 13, 2019. If the 10 Court allows Reiche and Ford to amend their counterclaim, GOG will likely file another motion 11 to dismiss as it is unlikely that Reiche and Ford will be able to plead a factually-sufficient fraud 12 claim against GOG. Thus, even if the Court grants Reiche and Ford leave to amend their Second 13 Amended Counterclaim, it could be another two to three months before the pleadings are settled.3 14 Given the recent addition of GOG and Valve as new parties, the new claims asserted by 15 Reiche and Ford against the new parties, the magnitude of the documents produced prior to 16 GOG’s addition to the case, the additional documents to be produced, and GOG’s need to conduct 17 further discovery, good cause exists to extend the discovery deadlines. GOG should not have its 18 ability to prepare for trial truncated by the other parties and a Scheduling Order entered before 19 GOG’s addition to the case. 20 C. Proposed Dates for Re-Scheduling Of Action 21 Below is a chart summarizing the proposals for new dates of each set of parties. 22 Deadline Stardock/Valve GOG Proposal Reiche/Ford 23 Proposal Proposal 24 Written Discovery April 6, 2019 June 28, 2019 None 25 26 3 In addition to GOG’s motion to dismiss, currently pending before the Court are Reiche and 27 Ford’s Motion to Dismiss Counts Twelve and Thirteen of Stardock’s Third Amended Complaint (Dkt. 76) and Stardock’s Motion for Leave to File a Fourth Amended Complaint (Dkt. 82). 28 Therefore, none of the operative pleadings are settled. 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY - 14 - THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 15 of 17 1 All Fact Discovery May 15, 2019 August 30, 2019 3/22/2019 2 Expert Witness June 7, 2019 September 13, 2019 Designation (Party 4/19/2019 3 with burden) 4 Rebuttal Expert July 21, 2019 September 30, 2019 5 Witness 5/17/2019 Designation 6 All Expert August 15, 2019 October 11, 2019 7 Discovery 5/31/2019 8 Dispositive November 7, 2019 November 7, 2019 Motions 7/19/2019 9 10 Pretrial February 14, 2020 February 14, 2020 Conference 8/9/2019 11 Trial March 2, 2020 March 2, 2020 12 9/20/2019 13 Mr. Reiche and Mr. Ford’s Position 14 15 Reiche and Ford disagree that the scope of the case has dramatically expanded, as the 16 allegations of infringement against Valve and GOG are no different than against Stardock. Valve 17 and GOG are simply additional distribution channels for Stardock’s new game, Star Control: 18 Origins (“Origins”), that Reiche and Ford have alleged would infringe on their copyrights to Star 19 Control I and II since filing their first counterclaim in February 2018. 20 In addition, Stardock delayed depositions of its personnel in this case for over half a year 21 22 until Stardock was finally ordered by Magistrate Judge Westmore to provide deposition dates in 23 early December, and its continuing failure to comply with its discovery obligations has already 24 substantially delayed this case from proceeding toward resolution. There is certainly no reason to 25 extend discovery as between Stardock and Valve (represented by the same counsel), on the one 26 hand, and Reiche and Ford, on the other. At this point, most of the depositions have been or will 27 28 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY - 15 - THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 16 of 17 1 be completed in the next month, and below is a schedule that allows for completion of discovery 2 shortly thereafter and timely trial. 3 D. Status of Settlement Negotiations 4 Stardock, Valve, and Reiche and Ford agree that the currently scheduled settlement 5 conference set for April 11, 2019 before Judge Spero is unlikely to be productive at this time. 6 Stardock, Valve, and GOG believe a private mediation would be useful. Reiche and Ford 7 disagree, but remain willing to engage in good faith settlement negotiations with the other parties. 8 GOG’s Further Position 9 Between December 2018 and January 2019, GOG, Reiche and Ford, and Stardock 10 discussed the possibility of dismissing GOG from the case. GOG was hopeful that the claims 11 against it could be resolved through a mutually-beneficial settlement, but the parties were 12 ultimately unable to come to an agreement. Nevertheless, GOG remains sanguine about 13 prospects for settlement and sees no reason why settlement is not possible. GOG agrees that a 14 private mediation would be beneficial, and would be willing to participate in a mediation session 15 with an eye toward achieving a global settlement. 16 17 18 19 20 21 22 23 24 25 26 27 28 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY - 16 - THE COURT 17-CV-07025-SBA Case 4:17-cv-07025-SBA Document 114 Filed 02/13/19 Page 17 of 17 1 Dated: February 13, 2019 NIXON PEABODY LLP 2 3 By:/s/ Deanna R. Kunze Robert A. Weikert (Bar No. 121146) 4 rweikert@nixonpeabody.com Dawn N. Valentine (Bar No. 206486) 5 dvalentine@nixonpeabody.com Nixon Peabody LLP 6 One Embarcadero Center, 32nd Floor San Francisco, California 94111-3600 7 Tel: (415) 984-8200 Fax: (866) 294-8300 8 David L. May (appearance pro hac vice) 9 dmay@nixonpeabody.com Jennette E. Wiser (appearance pro hac vice) 10 jwiser@nixonpeabody.com Nixon Peabody LLP 11 799 9th Street NW Washington, DC 20001-4501 12 Tel: (202) 585-8000 Fax: (202) 585-8080 13 Deanna R. Kunze (appearance pro hac vice) 14 dkunze@nixonpeabody.com Jason T. Kunze (appearance pro hac vice) 15 jkunze@nixonpeabody.com NIXON PEABODY LLP 16 70 West Madison Street, 35th Floor Chicago, IL 60602 17 Tel: (312) 977-4400 Fax: (312) 977-4405 18 Attorneys for Defendant 19 Stardock Systems, Inc. 20 (The other parties did not provide their signature blocks, but authorized us to file 21 this on their behalf.) 22 23 24 25 26 27 28 4827-7083-0472.4 JOINT STATUS REPORT AS ORDERED BY - 17 - THE COURT 17-CV-07025-SBA