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Plaintiff,
v.
STEFAN DELGADO ARGOTE a/k/a ,
Ohm and Burberry; MATTHIAS
OLTMANN a/k/a Joduskame,
Rolle3k, and Sheppard; TYRONE
TOM PAUER a/k/a Beaving;
CHACHANI MISTI Y PICHU PICHU
S.R.L., a company organized under the
laws of Peru; and DOES 1-10,
inclusive,
Defendants.
DEFENDANTS SUR-REPLY TO
PLAINTIFFS EX PARTE
APPLICATION FOR LEAVE TO
TAKE LIMITED IMMEDIATE
DISCOVERY
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36699908
I.
INTRODUCTION
Immediate Discovery, Dkt. No. 20 (Reply), confirms Riots intent here: to turn
Rule 26 on its head and gain early access to relatively broad discovery before
Defendants have even been served with process, based largely on unsupported
assertions that Chachani is not what it purports to be. Let us be clear: Chachani
(Reply at 1)are absurd. Riot filed its Ex Parte Application for Leave to Take
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and its lawyers to drop everything over the weekend to complete an opposition with
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address the issues Riot raised, let alone to anticipate and address questions that Riot
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never asked.
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Riot also misstates the law, asking this Court to ignore well-settled precedent
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that Riot must first show (a) irreparable prejudice and (b) lack of fault in creating the
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crisis that requires ex parte relief, before the Court may grant ex parte relief. Riot
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effectively asks this Court to set aside a host of federal and local rules to allow it to
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commence the discovery process without even giving Defendants a fair opportunity
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to be heard, let alone afford them service of process. It is not difficult to imagine the
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-1DEFENDANTS SUR-REPLY TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
TO TAKE LIMITED IMMEDIATE DISCOVERY
Mission Power Engg Co. v. Continental Cas. Co., 883 F. Supp. 488, 489 (C.D. Cal.
1995). The only case Riot cites in support of its position is Semitool, Inc. v. Tokyo
Electron America, Inc., 208 F.R.D. 273 (N.D. Cal. 2002), the patent litigation
involving early discovery of core technical documents for the purpose of compliance
with the Northern District of Californias local patent rules. But Semitool was
decided on a fully-noticed motion after defendants had waived service and appeared
in the case. Riot fails to cite any authority that supports its ex parte request for early
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those responsible for LeagueSharp. Chachani has already provided Riot with
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Chachanis name, director, address, alternate names, and now two declarations from
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Chachanis director attesting to such facts. Rather, Riot wants relatively broad
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social security numbers, dates of birth, home addresses, places of employment, email
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anyone connected to LeagueSharp, as made clear by Riots Reply. And all this on an
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ex parte application that left Defendants with one weekend to oppose. Not only is
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this inherently unfair given that [t]he opposing party can rarely make its best
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presentation on such short notice, Mission Power, 883 F. Supp. at 491, but
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Defendants are likely to suffer prejudice as a result of granting such early, invasive
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discovery. Indeed, Riot has already interfered with Chachanis business relationships
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II.
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ARGUMENT
A.
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Riot asks this Court to apply only the good cause standard for expedited
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discovery and argues that Defendants have applied an incorrect legal standard.
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whether seeking expedited discovery or anything else for that matteris that the
applicant must show irreparable prejudice and a lack of fault or at least excusable
neglect. Mission Power, 883 F. Supp. at 492. See also Shepherd v. U.S. Bank Natl
Assn, 2009 WL 3514550, at *1 (C.D. Cal. Oct. 26, 2009) (The law on ex parte
moving party must satisfy two conditions. First, the moving party must show that its
regular noticed motion procedures. Second, the moving party must establish that it is
without fault in creating the crisis that requires ex parte relief, or that the crisis
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heightened standard which applies and which Riot has failed to satisfy. The only
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case that Riot cites in support is Semitool, but the motion for expedited discovery in
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Semitool was made on a fully noticed motion after defendants had waived service.
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Parte App. (Supp. Nishimoto Decl.), 2 & Ex. A. It had nothing to do with
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abandoning the ex parte standard when a party seeks expedited discovery. Indeed,
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neither Defendants (in the limited time that Defendants have had), nor apparently
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Riot (who has had substantially more time), have been able to find any cases granting
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B.
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that Riot must show before it may be granted ex parte relief: (a) irreparable prejudice
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and (b) lack of fault in creating the crisis that requires ex parte relief. Mission
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Power, 883 F. Supp. at 492. In so doing, Defendants answer each of the relevant
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spoliation (App. at 2, 13), and Chachani confirmed that it was aware of and
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complying with its document preservation obligations. Defs. Oppn to Pl.s Ex Parte
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App., Dkt. No. 18 (Opp.), at 6; Decl. of Jaime Rosalino Prado Lira in Supp. of
-3DEFENDANTS SUR-REPLY TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
TO TAKE LIMITED IMMEDIATE DISCOVERY
Oppn, Dkt. No. 18-2 (Lira Decl.), 5. Riot thought Chachani may not actually
exist and was a smokescreen (App. at 5, 13), and Defendants confirmed its
existence. Opp. at 5; Lira Decl., 2. Riot wanted to know who was responsible for
LeagueSharp (App. at 1), and Defendants confirmed that Chachani owns and controls
Supp. of Defs. Sur-Reply to Pl.s Ex Parte App. (Supp. Lira Decl.), 2. Riot
raised questions about Mr. Liras role as director (Decl. of Marc E. Mayer in Supp. of
Ex Parte App., Dkt. No. 17-1 (Mayer Decl.), Ex. 2 at 21), and Defendants
confirmed that Mr. Lira is Chachanis director and that Chachani does business as
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C.
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admitted. This is ridiculous. In the short time that Defendants had to prepare an
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application. Defendants did not attempt to second guess what other questions Riot
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might raise. And, to the extent it was not clear from Mr. Liras original declaration,
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Riots questions because Riot drops all of these). None of these accusations hold
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water.
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Riot argues that Chachani and CHAMISPI are separate companies with
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Riot asserts that the LeagueSharp forum rules were updated on August 6,
2016 (i.e., the day after this lawsuit was filed). The exhibit, however,
shows that the rules were updated on June 8, 2016. Lira Decl., Ex. A.
obtain for businesses with an online presence, and the fact that Chachani
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contact in Peru (as opposed to a telephone call), since Riot claims not to
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the only evidence Riot offers in support of this allegation is one sentence
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Chachani. Mayer Decl., 10. Riots reliance on the face value of its
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and management of the LeagueSharp website (id. at 1), and the identity of any other
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Forum Rules, arguing that the identity of forum users iMeh, Zethos, Hestia, and
Zezzy are somehow relevant to its application. Id. at 1-2. Yet, Riot makes no
effort to show how its allegations in this case (i.e., DMCA, tortious interference with
contract, and unfair competition), would extend to such individuals. Indeed, it is not
special ranks that make it easier for them to help other users, hide violating posts,
and/or otherwise more actively participate in the forum. Riot itself awards ranks like
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D.
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The questions that Riot raises in its Reply reveal that its real intent is to obtain
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rather far-reaching discovery into LeagueSharp and Chachanis operations that has
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little to do with identifying other defendants. Riot likely wants information regarding
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problems as it can. Indeed, Riot has already caused problems for Chachani,
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Supp. Lira Decl., 5. It doesnt take much to imagine what Riot intends to do with
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all the emergency discovery it now asks the Court to grant on its ex parte
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application. Riots proposed subpoenas are broad, seeking names, social security
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telephone and facsimile numbers, Internet websites, and IP addresses. Mayer Decl.,
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Ex. 3 at 56. Riots Reply makes clear that Riot wants to know anyone remotely
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joduska.me domain name and the user-generated scripts that allow the
-6DEFENDANTS SUR-REPLY TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
TO TAKE LIMITED IMMEDIATE DISCOVERY
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operate in the time it takes to complete service on Defendants. (Reply at 4.) This
argument is misplaced in that Riot seems to be conflating its own allegations with
judgment on the merits. Riot has made no showing akin to what it must show, e.g., to
the merits is insufficient. Moreover, Riot fails to show how the relief it seeks will
even resolve this concern. Indeed, simply identifying more foreign defendantsto
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the extent there even are anywill not somehow short-circuit Riots service
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requirements. Riot has failed to offer any authority suggesting that the possibility of
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III.
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CONCLUSION
Based on the foregoing, Defendants request that this Court deny Riots ex parte
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-7DEFENDANTS SUR-REPLY TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
TO TAKE LIMITED IMMEDIATE DISCOVERY