Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gamevice, Inc. v. Nintendo Co., Ltd.

United States District Court, N.D. California

October 29, 2019

GAMEVICE, INC., Plaintiff,
v.
NINTENDO CO., LTD., et al., Defendants.

          DISCOVERY ORDER RE: DKT. NOS. 102, 104

          THOMAS S. HIXSON, UNITED STATES MAGISTRATE JUDGE

         Nintendo moves to compel further responses to its interrogatory No. 6 and request for production (“RFP”) No. 17, [1] and Gamevice opposes. ECF Nos. 102, 104.

         Nintendo served interrogatory No. 6 on July 12, 2018. It asked Gamevice to:

Identify all sales, revenue, and profit information for each model of Gamevice Accessory identified in response to Interrogatory No. 1, for the period from January 1, 2013 to the present day, including by identifying on monthly, quarterly, and yearly basis: the number of units sold; the gross selling price; the net selling price; any sales allowances, sales discounts, and sales returns deducted from gross selling price; costs of goods sold; gross profit; gross margin; indirect or fixed expense(s); net profit; and net margin.

         Gamevice responded on August 13, 2018 with a series of objections, then stated it would “supplement its responses after Nintendo has served its Patent L.R. 3-1 disclosure of asserted claims and infringement contentions pursuant to the Court's Scheduling Order (Dkt #42), and during expert discovery.” On May 17, 2019 Gamevice served a first supplemental response that contained a Rule 33(d) reference to documents. Those documents contained financial information through the first quarter of 2018.[2] On May 24, 2019, Gamevice served a second supplemental response that contained additional Rule 33(d) references to documents that contained financial information through the end of 2018.

         Nintendo served RFP 17 on July 12, 2018. It requested:

Your audited and unaudited monthly, quarterly, and annual financial statements (income statements, balance sheets, statements of cash flow, and statements of changes in shareholder's equity) from January 1, 2013 to the present day, including all disclosures required by generally accepted accounting principles.

         After some objections, Gamevice responded on August 13, 2018 that it “will produce responsive, non-privileged documents in its possession, custody, and control [that] constitute its audited and unaudited financial statements from October 2017 to the present day, to the extent such documents exist and can be located after a reasonable search.” On November 1, 2018, Gamevice produced a spreadsheet detailing its sales information through March 2018. On May 24, 2019, Gamevice produced an updated spreadsheet with financial information through the end of 2018. It has not provided updated financial information since.

         Fact discovery closed in this case on August 9, 2019. ECF No. 60. Per Civil Local Rule 37-3, the deadline to move to compel expired a long time ago. The parties agree, at least, on that. Nintendo argues that Gamevice is nonetheless obligated to supplement its prior responses with financial information for the first three quarters of 2019 pursuant to Rule 26(e), reasoning that the prior responses are now incomplete.

         Nintendo is correct that the fact discovery cutoff does not terminate the obligation to supplement. The Advisory Committee Notes to the 1993 Amendments to Rule 26 indicate that the obligation to supplement under Rule 26(e) does not end with the fact discovery cutoff:

Supplementations need not be made as each new item of information is learned but should be made at appropriate intervals during the discovery period, and with special promptness as the trial date approaches. It may be useful for the scheduling order to specify the time or times when supplementations should be made. (emphasis added).

         Case law is in accord. See Woods v. Google, 2014 WL 1321007, at *4 (N.D. Cal. Mar. 28, 2014) (“The Court can definitively state that the Rule 26(e) duty to supplement or correct incomplete or incorrect responses does, in fact, extend beyond the discovery cutoff date.”); Hernandez v. Polanco Enters., Inc., 19 F.Supp.3d 918, 933 (N.D. Cal. 2013) (“Federal Rule of Civil Procedure 26(e) places litigants under an affirmative duty to supplement non-deposition discovery responses, even after the discovery cut-off date.”). And Gamevice doesn't argue otherwise.

         This procedural posture takes several issues out of play. No one is disputing the relevance or proportionality of the requested information. No one is disputing that motions to compel fact discovery are barred at this point. In fact, the motion comes down to only one issue: Are Gamevice's prior responses incomplete within the meaning of Rule 26(e)?

         Gamevice says no. Interrogatory No. 6 asked for financial information “for the period from January 1, 2013 to the present day, ” and it was served on July 12, 2018. RFP 17 was served on July 12, 2018 and is phrased the same way. It is possible to interpret “the present day” to mean the date the request was served, and there is case law supportive of such an argument. See Hnot v. Willis Grp. Holdings Ltd., 2006 WL 2381869, at *2 n.4 (S.D.N.Y. Aug. 17, 2006) (“Contrary to what plaintiffs seem to assume, a statement referring to ‘the present' generally does not refer to any moment in time beyond when the statement was made.... The same logic applies to discovery requests; thus, a discovery request dated January 16, 2002, for documents extending ‘to the present' only requires production of documents in existence on or before January 16, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.