Atari Interactive, Inc. v. Redbubble, Inc.

Background

This is a trademark and copyright infringement case. Atari alleged that Redbubble infringed copyrights in the graphics and artwork of certain Atari video games. Atari announced that it intended to use an Atari 2600 console at trial to perform a live gameplay demonstration of unspecified games or, alternatively, to play recorded gameplay videos.

Redbubble moved to exclude the live demonstrations and videos because Atari had not produced the games or videos during discovery or at any other time. Redbubble did not object to displaying the Atari 2600 console as a physical object. It objected to using the console to demonstrate the games it could play.

Parties’ Arguments

Redbubble argued that the physical console and gameplay videos were responsive to its discovery requests but had not been produced. It also argued that Atari had not disclosed the videos or the planned live demonstration on its trial exhibit list.

Atari argued that it had disclosed its intent to use the console by producing photographs of Atari 2600 consoles. Atari also pointed to references to the console during depositions of Casandra Brown, Atari’s Director of Licensing, and Fred Chesnais, Atari’s former chief executive officer. Atari further argued that Redbubble should have requested an inspection of the console after receiving the photographs.

Court’s Analysis

Federal Rule of Civil Procedure 26 requires parties to disclose information and witnesses they may use to support their claims or defenses and to timely correct materially incomplete or incorrect disclosures. Under Rule 37, a party that fails to make a required disclosure generally may not use the information at trial unless the failure was substantially justified or harmless; the court may also impose other appropriate sanctions.

The court found that photographs of the Atari 2600 did not satisfy Atari’s obligation to disclose gameplay videos or its intent to use the console for a live demonstration. References to the physical console by witnesses likewise did not provide sufficient additional or corrective information about the planned gameplay evidence.

The court rejected Atari’s inspection argument. It noted that Atari had represented that it only recently obtained the physical console, meaning it may not have had a console available for inspection when it produced the photographs. The court also found it unclear how inspecting the console would have notified Redbubble about the gameplay videos or demonstrations.

The court concluded that Atari’s failure to produce the materials was neither substantially justified nor harmless. Trial was imminent, there was no reason the evidence could not have been produced earlier, and the timing of creating the evidence was within Atari’s control.

Disposition

The court granted Redbubble’s motion to exclude any live demonstrations of video games or recorded videos of gameplay. The order did not exclude displaying the Atari 2600 console as a physical object.