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Gregory A. Greer v. Electronic Arts

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


February 16, 2012

GREGORY A. GREER, PLAINTIFF,
v.
ELECTRONIC ARTS, INC., DEFENDANT.

The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge

ORDER RE: PLAINTIFF'S MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION OF THE COURT'S ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL IN PART (Dkt. No. 105)

Now pending before the Court is Plaintiff's Motion for Leave to File a Motion for Partial Reconsideration of the Court's Order granting Plaintiff's Motion to Compel in Part. 21 (Dkt. No. 105). Because Plaintiff has not shown that the motion is based on any new facts or 22 evidence that were unavailable to Plaintiff before the Court's decision on his motion to 23 compel, the Court DENIES Plaintiff leave to file a motion for reconsideration. 24

Plaintiff seeks reconsideration of the Court's rulings regarding Requests for the Production of Documents Nos. 5, 6, and 10.*fn1 Request Nos. 5 and 10 sought documents 26 concerning third-party derivative works or "mods" of Tiberian Dawn or any other work 2 which includes the song Destructible Times. Request No. 6 sought documents concerning 3

Defendant's expectations for the "Command & Conquer Community," which the Court 4 understood to refer to www.commandandconquer.com. Based on Defendant's 5 representation during oral argument that Defendant had not found any documents evidencing 6 that it encouraged anyone to create a "mod" or any other derivative work with the song 7

Destructible Times, and did not find any documents evidencing that it encouraged anyone to 8 download patches that would insert the song Destructible Times into a "mod" of any game, 9 the Court declined to order additional discovery regarding Request Nos. 5 and 10. The Court 10 denied Request No. 6 because Plaintiff had not established the relevance of this broad 11 category of documents. 12

Court's prior order pursuant to Local Rule 7-9(b)(2), which requires the moving party to 14 show "[t]he emergence of new material facts or a change of law occurring after the time of 15 such order." However, the evidence on which Plaintiff relies and has attached to his motion 16 consists of website printouts predating the underlying motion to compel -- the most recent of 17 which dates from July 29, 2011 and some dates from as far back as 2003. (Dkt. No. 105-2 18

(posted July 29, 2011); Dkt. No. 105-4 (posted October 6, 2005)). This is not new evidence 19 occurring after the time of the Court's order as required by Local Rule 7-9(b)(2).*fn2 20

21 support of his motion to compel in the first instance in contravention of Local Rule 7-9(c). 22

See L.R. 7-9(c) (stating "[n]o motion for leave to file a motion for reconsideration may 23 repeat any oral or written argument made by the applying party in support of or in opposition 24 to the interlocutory order which the party now seeks to have reconsidered.") Namely,

Plaintiff alleges that newly discovered evidence justifies reconsideration of the Instead, Plaintiff appears to be rehashing the same arguments that he advanced in Plaintiff asserts that the documents show that Defendant has encouraged third-parties to 2 create "mods" of Tiberian Dawn using the song Destructible Times. However, as with the 3 underlying motion to compel, there is no direct evidence of encouragement. 4

5 www.commandandconqueror.com blog that references the xwis.com server does not mention 6 2). Although the xwis.com link on this page redirects to a website which lists the Game, the 8 link to the Game is an empty webpage simply showing screenshots of the Game. (Dkt. No. 9 XCC Utilities that allow third-party "modders" to extract movie and music files that include 11

Destructible Times." (Dkt. No. 105, p. 3). In support of this allegation, Plaintiff submits a 12 screenshot of a website; however, there is no indication what website it is from, when it is from, or most importantly, that Defendant has any knowledge of this website's existence. 14

The Court briefly reviews the offered evidence. The

Command & Conqueror: Tiberian Dawn ("the Game") -- the game at issue. (Dkt. No. 105-7 105-3). Plaintiff represents that "XWIS publishes a free set of software tools called the 10 (Dkt. No. 105-5). The following exhibit, from September 2003, references making a "TC" 15 for the Game, but there is no indication of what a "TC" is, and again, there is no link 16 between this website and Defendant. (Dkt. No. 105-6). Furthermore, this website is from 17

September 2003, four years before Defendant made the Game available for free download 18 and thus, well before Plaintiff's primary contributory and vicarious infringement claims 19 allegedly arose. (Dkt. No. 96, p. 2). Finally, Plaintiff submits a blog post from a third-party 20 indicating that he knows his activities with respect to the Game are illegal, but nonetheless 21 suggesting Defendant's tacit approval of his activities. (Dkt. No. 105-7, p. 8). Notably, 22

Plaintiff has not produced the website referenced by the third-party which allegedly 23 demonstrates Defendant's tacit approval. 24

25 not possess any documents suggesting that it encouraged third-parties to create derivative 26 works or "mods" of Tiberian Dawn using the song Destructible Times. Indeed, Plaintiff 27 concedes that the "encouragements" on which he premises the request for reconsideration 28

"may not specifically mention Destructible Times" but argues "that omission has itself been

In sum, this "evidence" does not undermine Defendant's representation that it does a continuing infringement." (Dkt. No. 105, p. 3). This argument is insufficient to 2 demonstrate encouragement or to call into question Defendant's representations that it 3 searched for and was unable to identify any documents responsive to Plaintiff's requests. 4

The Court finds that reconsideration is not warranted under Local Rule 7-9.*fn3

Based on the foregoing, Plaintiff's Motion for Leave to File a Partial Motion for Reconsideration is DENIED. (Dkt. No. 107). 7

IT IS SO ORDERED.


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