Lowtech Studios, LLC v. Kooapps LLC
1:23-cv-01437
W.D. Tex.Sep 16, 2025Background
- Lowtech Studios and Steven Howse moved to compel Kooapps LLC to produce a complete set of Apple App Store reviews for the Snake.io app (Howse RFP No. 10) under Fed. R. Civ. P. 37.
- Howse served RFPs on April 8, 2025; Kooapps objected on May 8, 2025 citing privilege, overbreadth, burden, and that responsive material is publicly available and equally accessible.
- Lowtech produced a corpus of Snake.io reviews (collected via Sensor Tower) and alleges Kooapps has challenged that production as incomplete while refusing to produce its own complete set.
- Lowtech contends the App Store reviews are highly relevant to consumer confusion, false-advertising and willfulness issues and that Kooapps has practical ability or duty to obtain/produce the reviews (possession, custody, or control under Rule 34).
- Lowtech narrowed its request and offered limited compromises (produce only reviews Kooapps says are missing or stipulate completeness) but says Kooapps declined to cooperate; Lowtech seeks an order compelling production within 10 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kooapps must produce the full set of Apple App Store reviews for Snake.io | Lowtech: reviews are relevant to consumer confusion, false advertising, and willfulness; Lowtech already collected reviews and production is not burdensome | Kooapps: objection based on privilege/general objections, overbreadth, burden, and that reviews are publicly available/equally accessible so no obligation to produce | Not decided in this filing — motion requests court order to compel production |
| Whether public availability excuses production obligations | Lowtech: public availability does not excuse a party from producing documents in its possession, custody, or control; reciprocal discovery required | Kooapps: material is publicly available and equally accessible so it need not produce | Not decided in this filing |
| Whether Kooapps has "control" under Rule 34 over third‑party App Store data | Lowtech: Kooapps has business relationships/contacts with Apple, used Sensor Tower, and thus has practical ability to obtain reviews or must assist with third‑party production | Kooapps: contends reviews are not within its custody or control (per objections) | Not decided in this filing |
| Whether Lowtech's narrowed offers and Sensor Tower proof make production proportional/burdensome | Lowtech: collection took ~2 hours via Sensor Tower; offered to limit to disputed reviews; burden is minimal | Kooapps: asserts burden and incompleteness concerns but provided no specific burden showing | Not decided in this filing |
Key Cases Cited
- McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482 (5th Cir. 1990) (burden shifts to resisting party once relevance is shown)
- Martin v. Allstate Ins. Co., 292 F.R.D. 361 (N.D. Tex. 2013) (consumer reviews are discoverable)
- Mir v. L-3 Communications Integrated Sys., L.P., 319 F.R.D. 220 (N.D. Tex. 2016) (Rule 34 control includes practical ability to obtain documents from nonparty)
- Goodyear Tire & Rubber Co. v. CEVA Logistics Singapore, Ltd., 348 F.R.D. 54 (E.D. La. 2024) (control over third‑party documents shown by affiliation/ability to command release)
- Merrill v. Waffle House, Inc., 227 F.R.D. 475 (N.D. Tex. 2005) (burden objections require specificity)
- Martino v. Kiewit New Mexico Corp., [citation="600 F. App'x 908"] (5th Cir. 2015) (public availability of records does not automatically excuse production)