Psychic Readers Network, Inc. v. Take-Two Interactive Software, Inc. et al

MOTION to Compel Defendant to Produce Lainie Goldstein for Deposition

S.D. Fla.February 1, 2019

{00181505. 1 } UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION CASE NO.: 17-CV-61492-WPD PSYCHIC READERS NETWORK, INC., Plaintiff, v. TAKE-TWO INTERACTIVE SOFTWARE, INC. and ROCKSTAR GAMES, INC., Defendants, v. and DOES 1-10, Defendants. _____________________________________/ PLAINTIFF PSYCHIC READERS NETWORK, INC.’S MOTION TO COMPEL DEFENDANT TO PRODUCE LAINIE GOLDSTEIN FOR DEPOSITION Pursuant to Federal Rules of Civil Procedure 26, 30, and 37, Plaintiff Psychic Readers Network, Inc. (“PRN”) respectfully requests an order compelling Defendants to produce Lainie Goldstein for deposition. In support, PRN states the following: INTRODUCTION Ms. Goldstein has unique personal knowledge concerning the financial issues related to the Vice City videogame that is at the very heart of this matter. The claims for copyright infringement in this case stem from Defendants’ unauthorized use of PRN’s copyrighted character Miss Cleo in the Vice City videogame, which was first released in 2002. As one measure of damages, PRN is entitled to the profits emanating from Defendants’ unlawful misappropriation of PRN’s copyrighted character. Moreover, pursuant to a prior Order of this Court granting in part PRN’s First Motion to Compel, PRN is entitled to discovery of the revenues generated by sales of Vice Case 0:17-cv-61492-WPD Document 111 Entered on FLSD Docket 02/01/2019 Page 1 of 5 {00181505. 1 } City dating back to 2002. (See D.E. 75 finding “Defendants’ financial records from the date of the first infringement [2002] to the present is relevant and proportional to the needs of this case”.) Ms. Goldstein has unique personal knowledge of these matters because she has been with Defendant Take Two since 2003 and was directly involved in reporting and overseeing the financial statements and accounting as to the Vice City videogame. A copy of her biography from Defendant Take Two Interactive’s website is attached hereto as Exhibit 1. Although PRN has served extensive discovery on this issue, Defendants have failed to produce sufficient financial information relating to the sale of the Vice City videogame. Instead, Defendants provided an unsupported and insufficient summary spreadsheet. As the Senior Vice President of Finance from 2003-2007, Ms. Goldstein has unique personal knowledge as to these issues for which other methods of discovery have been unsuccessful. Ms. Goldstein is uniquely situated because the bulk of the sales of the Vice City videogame occurred from 2003 to 2004. To thwart this discovery, Defendants have objected to Ms. Goldstein’s deposition under the Apex doctrine to prevent PRN from deposing the person with the best knowledge as to the sales, revenues, and expenses of the Vice City videogame and the financial reporting mechanisms in place from 2002 to present. Although Defendants will likely argue that they offered another employee, Hannah Sage, to testify as to these financials, Ms. Sage was apparently not even employed by Take Two during the critical time of 2003 to 2004. Moreover, Ms. Sage likely cannot testify as to the precise details of the financial relationship between Defendants and their main distributor of the Vice City videogame at the time, Jack of All Games, which is no longer in existence. Accordingly, Defendants should not be allowed to dictate who PRN can depose in order to obtain the best evidence available on this issue. Otherwise, Defendants will likely object that any testimony came from a witness that did not have first-hand knowledge of these matters. Case 0:17-cv-61492-WPD Document 111 Entered on FLSD Docket 02/01/2019 Page 2 of 5 {00181505. 1 } DISCUSSION Courts in this jurisdiction generally allow for broad discovery. Only in certain circumstances involving extremely high level officials, not applicable here, courts have recognized the need to limit discovery in order to “prevent the potential harassment and abuse of high level corporate executives where he or she has little or no knowledge.” Reilly v. Chipotle Mexican Grill, Inc., No. 15 Civ. 23425, 2016 WL 10644064, at *6 (S.D. Fla. Sept. 26, 2016). I. Ms. Goldstein has Unique Personal Knowledge of Issues Material to this Litigation. As noted above, Ms. Goldstein has unique personal knowledge of issues at the core of this litigation. Namely, the reporting of gross sales and expenses emanating from the Vice City videogame dating back to 2002. Indeed, she was the Senior Vice President of Finance from 2003- 2007 (i.e. the most relevant time period that PRN is claiming damages in this case). Accordingly, this is certainly not a case of a high level executive with little or no knowledge. See Cuervo v. Airport Servs., Inc., No. 12 Civ. 20608, at *3 (S.D. Fla. Mar. 4, 2014) (where an executive has knowledge of a key issue in the case, courts have refused to apply the apex doctrine). Moreover, Defendants should not be able to unilaterally decide who PRN gets to depose on these issues and then offer an employee who was not even employed by the Company at the critical time. II. Ms. Goldstein’s Deposition is Necessary Because PRN has Exhausted Other Methods of Obtaining this Information. In order to obtain this information by other means, PRN has sent numerous Requests for Production, Interrogatories, and Requests for Admission. As this Court is aware, PRN has moved this Court three different times for this information (D.E. 67, 87, and 99), and PRN has obtained two Court Orders compelling Defendants to produce relevant financial documents (D.E. 75 and 105). Despite those Orders, however, Defendants have failed to produce the necessary information. To the best of PRN’s knowledge, Ms. Goldstein is the only employee remaining Case 0:17-cv-61492-WPD Document 111 Entered on FLSD Docket 02/01/2019 Page 3 of 5 {00181505. 1 } with the requisite knowledge. See Cuervo, 2014 WL 12802522, at *3 (finding that plaintiff sufficiently demonstrated that the deposition of a high ranking executive was necessary where plaintiff asserted that another potential witness did not have as extensive knowledge as the executive about an issue of key relevance to the litigation). Additionally, Ms. Goldstein should have first-hand knowledge of the financial relationship with Defendants’ main distributor of the Vice City videogame at the time, Jack of All Games, which is no longer in existence. As noted above, Defendants have repeatedly objected to PRN’s attempts to conduct other means of discovery and have resisted providing any internal financial documents as specifically ordered by the Court. Most recently, in response to the Court’s Order on PRN’s Second Motion to Compel ordering Defendants to provide supporting documents for their summary spreadsheets (D.E. 105), Defendants failed to produce a single internal financial document. Instead, Defendants sent a two paragraph email and then attached an additional unsupported summary spreadsheet that does not contain the requested information. If numerous discovery requests and Court Orders will not result in Defendants producing the necessary information, PRN is rightfully entitled to depose the person with first-hand knowledge of such information. CONCLUSION WHEREFORE, PRN respectfully requests that this Court compel Defendant to produce Lainie Goldstein for a deposition as PRN has exhausted all other means of obtaining the requested information. CERTIFICATION PURSUANT TO LOCAL RULE 71(A)(3) Pursuant to Local Rule 7.1, counsel for PRN certifies that PRN has conferred with Defendants in a good faith effort to resolve the issues raised by this Motion without Court involvement, but the parties have been unable to resolve those matters on their own. Case 0:17-cv-61492-WPD Document 111 Entered on FLSD Docket 02/01/2019 Page 4 of 5 {00181505. 1 } Dated: February 1, 2019 Respectfully submitted, By: James R. Bryan Scott B. Cosgrove Florida Bar No. 161365 James R. Bryan Florida Bar No. 696862 León Cosgrove, LLP 255 Alhambra Circle, Suite 800 Coral Gables, Florida 33134 Telephone: (305) 740-1975 Email: scosgrove@leoncosgrove.com Email: jbryan@leoncosgrove.com Email: anoonan@leoncosgrove.com Joel R. Dichter (Admitted Pro Hac Vice) Dichter Law, LLC 118 North Bedford Road Suite 300 Mount Kisco, NY 10549 Telephone: (212) 593-4202 Email: dichter@dichterlaw.com Counsel for Psychic Readers Network, Inc. Case 0:17-cv-61492-WPD Document 111 Entered on FLSD Docket 02/01/2019 Page 5 of 5