Perry Street Software, Inc. v. Jedi Technologies, Inc.

Nature of the document

The provided text is a letter from Perry Street Software, Inc.’s counsel to Judge Colleen McMahon. It asks for clarification and further proceedings regarding the court’s October 14, 2020 memorandum decision and order. The text does not contain a ruling on Perry’s requests.

Background

According to Perry’s letter, the earlier order stayed the arbitration issue while the parties litigated Perry’s request for a permanent injunction and gave the parties 30 days to develop and submit evidence. Perry understood the order to permit discovery concerning arbitrability—the question of whether the dispute must be decided in arbitration. Perry said Jedi disagreed and refused to provide the requested discovery.

The factual issues identified in the letter include what Jedi’s attorney, Brian Haan, was doing when he accessed Perry’s application and agreed to Perry’s Terms of Service; what Jedi authorized Haan to do; whether Haan was investigating a potential lawsuit or pursuing patent licensing; whether Haan created an account for himself or for Jedi; and whether Haan had authority to accept the Terms of Service for Jedi.

Requests for discovery

Perry asked to depose Haan and Benjamin Baker, identified as Jedi’s principal. Perry said Haan’s testimony could address statements in Haan’s declaration, including his retention by Jedi, the purpose of his investigation, the authority Jedi gave him, and the account he created. Perry said Baker’s testimony could address what Jedi authorized Haan to do, what Jedi knew about the investigation, the purpose of Jedi’s pre-suit letter, and whether Jedi itself signed up for Perry’s application.

Perry also sought limited document discovery, including Jedi’s attorney-client retention agreement; drafts and communications concerning Jedi’s pre-suit letter; possible draft complaints; time records or invoices; documentation concerning Perry’s applications; and other pre-suit communications by Jedi’s attorney. Perry argued that these materials could help determine whether Jedi intended only to seek a patent license or intended to bring a patent-infringement lawsuit.

Privilege argument and further briefing

Perry anticipated that Jedi might assert attorney-client privilege. Perry argued that the requested materials were either not privileged or that Jedi waived any applicable privilege by submitting Haan’s declaration. Perry further argued that, at minimum, a privilege claim should not block discovery without a privilege log identifying the documents and the basis for withholding them.

Perry separately asked to submit supplemental briefing addressing the new evidence. It argued that the earlier order contemplated additional evidence and that due-process concerns supported giving the parties an opportunity to respond to that evidence.

Disposition

Perry requested that Judge McMahon order Jedi to provide the requested discovery and allow further briefing. The provided document does not state that the court granted, denied, or otherwise resolved either request.