WWE and MLW have filed a joint letter stating their disputes regarding discovery in the ongoing lawsuit filed by MLW against WWE.
Last year, MLW sued WWE on grounds of malicious interference with their contracts and business prospects. WWE was alleged to have pressured third parties to abandon contracts and prospective relationships with MLW.
Pwinsider reports that MLW’s legal team filed the response on January 17th, formally described as a “joint letter” at the judge’s request, laying out the dispute between the two parties regarding the discovery process. The letter reveals that MLW and WWE had an unsuccessful conference trying to resolve the issue.
On January 5th, WWE filed a motion, requesting the honorable court to halt discovery of materials in MLW’s lawsuit against them. The motion argued that the discovery process could cost WWE “millions of dollars in responding to discovery (in a case that may be dismissed), all while accessing WWE’s most sensitive, competitive information.” WWE’s legal team requested for a protective order that would prevent the company from producing materials in discovery.
You can read the full letter below:
“Dear Judge van Keulen,
In accordance with Your Honor’s Standing Order regarding discovery disputes and following an unsuccessful meet and confer telephone conference on January 4, 2023, the parties submit this joint letter concerning a discovery dispute among them. There are 255 days until the close of fact discovery. Defendant contends that the Court would benefit from further briefing and/or a hearing in this antitrust dispute.
Statement of the Dispute
There are two unresolved issues between the Parties.
Plaintiff’s Position: First, Plaintiff MLW Media LLC (“MLW”) asks this Court to compel Defendant World Wrestling Entertainment, Inc. (“WWE”) to produce documents in response to MLW’s initial requests for production, which were served on October 17, 2022. Defendant refuses to search for, collect or produce any documents on the basis that discovery is purportedly not open and there is no protective order or ESI protocol in place. Plaintiff contends that discovery is open as the Court has entered a case management order and that the delay in entry of an agreed-upon protective order and ESI protocol is an issue of Defendant’s own making.
Defendant’s Position: Defendant opposes Plaintiff’s request as improper judicial shopping of the dispute as Defendant has already filed a motion for protective order with Judge Davila to stay the production of the same documents Plaintiff now seeks to compel. ECF 51. As set forth in its pending motion for protective order, WWE argues that it should not be compelled to spend approximately $3 million dollars responding to discovery in a case that may be dismissed in its entirety, and where the scope of the discovery is yet to be decided by the Court. WWE faces significant prejudice if the Court grants MLW’s motion to compel while its Motion for Protective Order remains pending with the presiding judge.
Plaintiff’s Position: Second, Plaintiff asks this Court to resolve the parties’ dispute as to the number of custodians that Defendant must search under the Proposed Stipulated ESI Protocol. Plaintiff contends that its proposal of sixteen custodians is appropriate and consistent with its Rule 26 disclosures.
Defendant’s Position: WWE believes that the Parties have already agreed to an ESI Protocol and that it is premature to determine a proper number of custodians given that the parties do not yet know the scope of Plaintiff’s claims. As set forth in WWE’s Motion for Protective Case Order, to collect, store, review, and produce documents from custodial files in an antitrust case costs between $160,000.00 and $210,000.00 per custodian. Accordingly, WWE faces significant prejudice should the Court grant Plaintiff’s motion and arbitrarily choose a number of custodians before the presiding judge rules on WWE’s Motion to Dismiss and/or Motion for Protective Order.
Plaintiff’s Position: The Complaint in this action was filed on January 11, 2022. Judge Davila issued a scheduling order on December 13, 2022 that set a fact discovery cut-off of September 29, 2023.
Despite Judge Davila’s order, discovery remains at a standstill because of Defendant’s badfaith purposeful delay and unilateral refusal to engage in the discovery process. Defendant maintains that it need not produce documents because “discovery is not yet open in this case.” But this exact issue was put before Judge Davila in the Parties’ Joint Rule 26(f) Report (ECF 47), in which the Parties submitted competing views of whether discovery in this matter was open. Judge Davila entered a case management order that requires the parties to complete fact discovery by September 29, 2023. Defendants have incredibly taken the position that they have the right to unilaterally stay discovery by filing a motion to dismiss — a position which is directly belied by their own motion seeking to stay discovery (“Stay Motion”) (ECF 51), which by necessity admits that discovery is indeed open. If Defendants have their way, discovery would not begin until after their motion is heard on May 11, 2023, leaving just a handful of months for discovery.
WWE relies on Mujica v. Airscan, Inc., 771 F.3d 580, 593 (9th Cir. 2014). Mujica is inapposite, as that case concerned a plaintiff that admitted it could not meet “the specificity required by Iqbal, absent discovery.” Mujica, 771 F.3d at 593. Moreover, WWE waived its right to object to whether discovery was open when it agreed to respond by December 23, 2022 to MLW’s First Set of Requests for Production and agreed not to move to stay discovery prior to responding to those requests. “Had the Federal Rules contemplated that a motion to dismiss under Fed. R. Civ. P. 12(b)(6) would stay discovery, the Rules would contain a provision to that effect. In fact, such a notion is directly at odds with the need for expeditious resolution of litigation.” Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990).
WWE’s claim that Defendant is prejudiced by Your Honor hearing this discovery dispute is without merit. Plaintiff is asking for a ruling on whether discovery is open; it is not asking for a ruling on the appropriateness of a stay. WWE’s reliance on Arcell v. Google, LLC, No. 22-cv02499-EJD (Dkt. 44) (Oct. 12, 2022), is misplaced because in that case, unlike here, there was no case management schedule set. The Arcell court believed that was a critical fact, ruling that “[a]s no case management schedule has been set in this case, plaintiffs will suffer no prejudice if they must wait until after the presiding judge resolves defendants’ motion to stay discovery before pressing the relief they seek here.” Id. at 2 (emphasis added).
MLW will be prejudiced by WWE’s continued delays. Indeed, WWE waited more than eight months after the motion to dismiss was fully briefed to file the Stay Motion. While WWE also claims that discovery will cost an estimated $3 million, this position is belied by the fact that the parties have not met and conferred on search terms, date parameters, or the scope of discovery requests. In the weeks that it will take for the pending motion to dismiss to be decided, WWE would incur minimal costs as it negotiates these terms and then begins its search and collection.
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