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

Background

Nintendo moved to compel further responses to Interrogatory No. 6 and Request for Production No. 17. Interrogatory No. 6 sought sales, revenue, profit, and related financial information for each Gamevice accessory model from January 1, 2013, “to the present day.” Request No. 17 sought Gamevice’s audited and unaudited monthly, quarterly, and annual financial statements for the same period.

Gamevice initially objected to both requests but said it would supplement its responses after Nintendo disclosed its asserted patent claims and infringement contentions and during expert discovery. Gamevice later provided financial information through the first quarter of 2018 and then through the end of 2018. It did not provide updated financial information after that.

Fact discovery closed on August 9, 2019. Under Civil Local Rule 37-3, the usual deadline for moving to compel fact discovery had passed. Nintendo nevertheless argued that Federal Rule of Civil Procedure 26(e) required Gamevice to update its earlier responses with financial information for the first three quarters of 2019 because the earlier responses had become incomplete.

Court’s analysis

The court held that the obligation to supplement discovery responses under Rule 26(e) does not end when fact discovery closes. The court stated that the parties did not dispute the relevance or proportionality of the financial information, and did not dispute that an ordinary motion to compel fact discovery would be untimely. The issue was whether Gamevice’s prior responses were incomplete within the meaning of Rule 26(e).

The court found that “to the present day” could potentially mean either the date the discovery requests were served or a continuing reference to the present. The court resolved that ambiguity by examining the parties’ conduct. Gamevice had produced financial data through the end of 2018, which was inconsistent with its later position that its obligation ended on July 12, 2018. The court also found that the parties’ communications reflected a shared understanding that Gamevice’s financial information would be updated over time.

The court concluded that Gamevice had created a reliance interest for Nintendo by indicating during fact discovery that the requests were not limited to information available on July 12, 2018. The court characterized Gamevice’s later change in interpretation, after the motion deadline had passed, as an unfair change of position that could prejudice Nintendo’s trial damages calculations.

The court also rejected Gamevice’s argument that Civil Local Rule 37-3 barred Nintendo’s motion. It reasoned that applying the local deadline to motions enforcing Rule 26(e) would leave no way to enforce the continuing supplementation requirement after discovery closed.

Disposition

The court GRANTED Nintendo’s motion to compel updated financial information. Gamevice was ordered to produce updated information through the second quarter of 2019, and through the third quarter if feasible, by December 2, 2019. If Gamevice could not produce third-quarter data by that date, it was ordered to produce the data when feasible. The order was signed by United States Magistrate Judge Thomas S. Hixson.