That's What She Said, Inc. v. Gutter Games, Inc.

Background

The plaintiff requested an informal discovery conference concerning several disputes. The plaintiff said it had identified people and documents related to its damages and had agreed to produce responsive documents, but had not yet provided a precise damages calculation because it considered that calculation premature before discovery and expert work. The plaintiff also reported that defendants had not produced documents in response to requests served several months earlier.

The court stated that the first discovery issue was moot because a protective order had been entered on February 28, 2023. The court also accepted Gutter Games’ representation that the seventh concern had been resolved without court intervention. The court then addressed the remaining disputes separately as to Perch and Gutter Games.

Discovery Concerning Perch

The plaintiff’s second through fifth concerns sought discovery from Perch, including information about Perch’s contacts with the United States. The court noted that the extent and jurisdictional importance of those contacts were relevant to Perch’s pending motion to dismiss. If granted, that motion could dispose of all claims against Perch.

The court said its usual practice is to pause discovery while potentially case-ending motions are pending. It therefore found that discovery concerning Perch was premature to the extent it was unrelated to jurisdiction. At the same time, the court recognized that it may order discovery needed to decide a motion based on jurisdiction.

The court ordered Perch to file a letter by March 14, 2023, stating whether it preferred that the court either:

1. deny its pending motion to dismiss without prejudice so Perch could renew it after jurisdictional discovery; or 2. pause all discovery concerning Perch until the pending motion was resolved.

If Perch chose the first option, its letter had to include proposed dates, agreed to by the plaintiff, for completing jurisdictional discovery and briefing a renewed motion.

Discovery Concerning Gutter Games and Damages

The plaintiff’s remaining discovery concern sought an order requiring Gutter Games to answer certain interrogatories under Local Rule 33.3(a). The defendants also disputed whether the plaintiff had complied with its obligation to disclose information about damages.

The court found these disputes premature because it had not yet entered a case-management plan and scheduling order, and because the parties were attempting to settle the matter. The court ordered the plaintiff and Gutter Games to confer and submit a revised case-management plan by March 17, 2023. The plan had to propose a deadline for the Local Rule 33.3(a) interrogatories and include a deadline for initial disclosures.

The court stated that it expected the plaintiff’s initial disclosures to include a calculation of each category of damages, as required by Federal Rule of Civil Procedure 26(a)(1)(A)(iii).

Disposition

The court did not decide Perch’s pending motion to dismiss or the merits of the parties’ underlying claims. It issued directions concerning how the discovery disputes should proceed, ordered the revised case-management plan, and directed the clerk to terminate the motions at docket entries 37 and 42. The order was signed by Judge Katherine Polk Failla on March 7, 2023.