WWE and MLW filed a joint letter detailing their dispute over discovery in the ongoing lawsuit MLW filed against WWE.
Last year, MLW sued WWE based on malicious interference with their contracts and business prospects. WWE was accused of pressuring third parties to abandon contracts and potential relationships with MLW.
Pewinsider Reports that MLW’s legal team filed a response on Jan. 17, formally described as a “joint letter” to the judge’s request, outline the dispute between the two sides over the discovery process. The letter reveals that MLW and WWE held an unsuccessful conference trying to resolve the issue.
On January 5th, WWE filed a motion asking the Honorable Court to stop discovery of materials in MLW’s lawsuit against them. The motion argued that the discovery process could cost WWE millions of dollars in response to discovery (which could lead to dismissal) while accessing WWE’s most sensitive, competitive information. WWE’s legal team requested a protective order that would prevent the company from producing discovery material.
You can read the full letter below:
“Dear Judge Van Keulen,
Pursuant to Your Honor’s Standing Order Regarding Discovery Disputes and following an unsuccessful meeting and telephone conference on January 4, 2023, the parties submit this joint letter regarding a discovery dispute between them. There are 255 days left for the truth discovery. Defendant contends that the Court would benefit from further briefing and/or a hearing on this antitrust dispute.
Statement of Dispute
There are two unresolved issues between the parties.
Plaintiff’s Position: First, Plaintiff MLW Media LLC (“MLW”) sued this court against Defendant World Wrestling Entertainment, Inc. (“WWE”) to compel the production of documents in response to MLW’s initial request for production, which was served on October 17. 2022. Defendant refused to search, collect or produce any documents on the grounds that discovery was not allegedly open and there was no protective order or ESI protocol. Plaintiff contends that discovery is open because the court entered a case management order and that the delay in entering an agreed protective order and ESI protocol is an issue of defendant’s own making.
Defendant’s Position: Opposes Defendant’s request as improper judicial shopping of the dispute because Defendant has already filed with Judge Davila a motion for a protective order to stay production of the same documents Plaintiff now seeks to compel. ECF 51. As noted in its pending motion for a protective order, WWE argues that it should not be forced to spend nearly $3 million to respond to discovery in a case that could be dismissed entirely and where the scope of discovery has yet to be decided by the court. WWE faces significant prejudice if the court grants MLW’s motion to compel while its protective order motion is pending with the presiding judge.
Plaintiff’s Position: Second, Plaintiff asks this Court to resolve the parties’ dispute regarding the number of custodians a custodian must search under the proposed prescribed ESI protocol. Plaintiff asserts that Sixteen Guardian’s motion is appropriate and consistent with his Rule 26 disclosure.
Defendant’s Position: WWE believes that it is premature to determine the exact number of custodians because the parties have already agreed to an ESI protocol and the parties do not yet know the scope of plaintiff’s claims. As noted in WWE’s Motion for Protective Case Order, it costs $160,000.00 to $210,000.00 per custodian to collect, store, review and produce documents from custody files in antitrust cases. Accordingly, WWE faces significant prejudice if the court grants plaintiff’s motion and arbitrarily selects 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 stalled due to Defendant’s bad faith purposeful delay and unilateral refusal to engage in the discovery process. Defendant maintains that it need not produce the document because “discovery in this case has not yet been opened.” But this exact issue was put before Judge Davila in the parties’ Joint Rule 26(f) Report (ECF 47), where the parties submitted competing opinions on whether discovery was open on the issue. Judge Davila entered a case management order requiring the parties to complete fact discovery by September 29, 2023. Defendants have invariably taken the position that they are entitled to stay discovery by filing a motion to dismiss unilaterally — a position that directly denies their own motion to stay discovery (“stay motion”) (ECF 51), which necessarily concedes that discovery Really open. If the defendants have their way, discovery won’t begin until their motion is heard on May 11, 2023, leaving just a few months for discovery.
WWE relies on Mujica v. of Airscan, Inc., 771 F.3d 580, 593 (9th Cir. 2014). Mujica is unusual, as the case concerned a plaintiff who admitted it could not meet the “specificity requirement of 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 to MLW’s first set of production requests by December 23, 2022 and not to survive discovery until then. was agreed Respond to those requests. “If the federal rules contemplate a motion to dismiss under Fed. And. CV. P. 12(b)(6) shall have discovery, the statute shall contain provisions to that effect. Indeed, such a concept is in direct conflict with the need for expeditious resolution of litigation.” Gray v. First Winthrop Corp., 133 FRD 39, 40 (ND Cal. 1990).
WWE’s claim that this discovery dispute is preempted by Defendant Your Honor is without merit. Plaintiff seeks a ruling on whether discovery is open; It is not asking for a ruling on the suitability of a stay. Arcell v. Google, LLC, No. WWE’s reliance on 22-cv02499-EJD (Dkt. 44) (Oct. 12, 2022) is misplaced because in that case, unlike here, no case management schedule was set. The Arcel Court believed this to be a critical fact, ruling that “[a]As no case management schedule has been set in this case, plaintiffs will suffer no prejudice if they are required to wait until the presiding judge disposes of defendants’ motion for discovery before imposing the relief sought here.” Id. at 2 (emphasis added).
MLW will be prejudiced by WWE’s constant delays. In fact, WWE waited more than eight months after being fully informed of the motion to dismiss to file the stay motion. Although WWE asserts that discovery will cost approximately $3 million, this position is belied by the fact that the parties did not meet and provide the search terms, date parameters, or scope of the discovery request. During the weeks it will take to decide the pending motion to dismiss, WWE will have minimal costs as it negotiates these terms and then begins searching and collecting.