Via Vadis, LLC v. Blizzard Entertainment, Inc.
1:14-cv-00810
W.D. Tex.Jul 21, 2021Background
- Plaintiffs Via Vadis, LLC and AC Technologies, S.A. own/license U.S. Reissue Patent RE40,521 and allege Blizzard’s peer-to-peer (BitTorrent) distribution infringes the patent for certain game Titles (World of Warcraft, StarCraft, Diablo, etc.).
- Accused P2P distribution was implemented around 2006 and discontinued in July 2016; Blizzard now uses CDNs. The suit was filed in 2014.
- Plaintiffs sought broad Title-specific discovery (amounts of data distributed via CDN vs. P2P, file sizes, per-Title financials, implementation/monitoring documents, backup tapes, custodians/searches).
- Blizzard produced source code, summaries, ~7 months of 2015 logs, CDN spreadsheets, and some snapshots of P2P data; it declined to restore older server logs on backup tapes citing retention policies and undue burden.
- The magistrate judge denied Plaintiffs’ request to compel searching backup tapes (ESI not reasonably accessible/proportional), granted discovery of Title-level financial summaries, and ordered identification of custodians/locations searched for produced documents. Parties given time to comply and case returned to the district judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Backup tapes / older server logs (ESI) | Blizzard must search/restore backup tapes and produce logs or face spoliation findings. | Most relevant logs were overwritten pre-suit per retention policy; restoring tapes would be extremely burdensome (100–500 man-hours) with uncertain yield. | Denied — tapes are not reasonably accessible; burden/cost outweighs likely benefit under Rule 26. |
| Amount of Title data via CDN and P2P | Total GBs transferred by CDN and by P2P are relevant to infringement and damages. | Produced all responsive CDN data and whatever P2P snapshots exist; did not maintain totals in ordinary course. | Moot as to CDN and P2P totals — Blizzard represented it produced all responsive data it possesses. |
| File/data sizes per Title (original installs, updates, patches) | Per-Title file sizes are relevant to show use of the accused method and to estimate distributed volumes for damages. | (No substantive objection in briefing; Blizzard stated it would produce existing documents showing data distributed by method.) | Denied as to motion — representation that produced materials satisfy the request (no further compulsion). |
| Title-specific financials (revenues, subscriptions, units sold) | Financial/sales data relevant under Georgia-Pacific Factor 6 (convoyed/derivative sales) and possibly Factor 11 for extent/value of use. | Distribution method (CDN vs. P2P) is disconnected from game value; financials are irrelevant and disproportional. | Granted — Plaintiffs made a sufficient preliminary showing of relevance; summary Title financial information and Interrogatory No. 7 must be produced. |
| Custodians, search locations, and collection methods | Blizzard must identify custodians/locations searched and whether searches were manual or tech-assisted. | Blizzard asserted document collection efforts are work product and refused to disclose custodians/locations. | Granted — Blizzard must identify custodian and location for each produced document and all custodians/locations searched; Plaintiffs must reciprocate for their productions. |
Key Cases Cited
- Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258 (5th Cir. 2011) (discovery relevance standard; requests reasonably calculated to lead to admissible evidence)
- Wiwa v. Royal Dutch Petrol. Co., 392 F.3d 812 (5th Cir. 2004) (same principle on scope of discovery)
- McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482 (5th Cir. 1990) (burden on resisting party to show why discovery is improper)
- Sanders v. Shell Oil Co., 678 F.2d 614 (5th Cir. 1982) (district court has broad discretion over discovery scope)
- Cmedia, LLC v. LifeKey Healthcare, LLC, 216 F.R.D. 387 (N.D. Tex. 2003) (courts balance discovery need against prejudice/burden)
- Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970) (Georgia-Pacific factors for reasonable royalty/damages analysis)