SM Kids, LLC v. Google LLC et al
| SM Kids, LLC |
| Google LLC, Alphabet Inc., XXVI Holdings Inc., and John and/or Jane Does 1-100, inclusive |
| 1:2018cv02637 |
| March 26, 2018 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Lorna G. Schofield |
| Other Contract |
| 28 U.S.C. ยง 1441 |
| Plaintiff |
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Filing
271
ORDER granting 270 Letter Motion to Stay re: 270 JOINT LETTER MOTION to Stay pending mediation addressed to Magistrate Judge Stewart D. Aaron from John M. Magliery dated May 8, 2021: Request GRANTED. The date for the hearing on Google's motion to compel production of documents from SM Kids' privilege log and third parties' privilege logs shall be set by separate Order. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 5/9/2021) (Aaron, Stewart)
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Filing
269
ORDER granting 268 Letter Motion to Stay re: 268 JOINT LETTER MOTION to Stay clarifying request in prior letter motion addressed to Magistrate Judge Stewart D. Aaron from John M. Magliery dated April 21, 2021. Application GRA NTED. The parties' proposed schedule is approved, except that the hearing shall occur on May 26, 2021 at 2:00 pm via telephone. At the scheduled time, the parties shall each separately call{888} 278-0296 {or {214} 765-0479} and enter access code 6489745. So Ordered. (Signed by Magistrate Judge Stewart D. Aaron on 4/22/2021) (js)
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Filing
267
ORDER granting 266 Letter Motion to Stay re: 266 JOINT LETTER MOTION to Stay addressed to Magistrate Judge Stewart D. Aaron from John M. Magliery dated April 21, 2021. Request GRANTED. All existing deadlines in this case hereby are adjourned for a period of 30 days. The hearing currently scheduled before me on May 11, 2021 is adjourned sine die. No later than May 24, 2021, the parties shall file a joint letter regarding the status of private mediation efforts. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 4/21/2021) (Aaron, Stewart)
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Filing
258
ORDER granting in part and denying in part 236 Motion for Local Rule 37.2 Conference; granting in part and denying in part 238 Motion for Local Rule 37.2 Conference. Pending before the Court are (1) Defendants' Letter Motion to compel Plaintiff to produce (a) reports from its Google Analytics account for the website at www.googles.com and any comparable GoDaddy records, and (b) an unredacted discovery letter from the Ganz v. SM Kids, 18-01357 (D. Del.) ("Ganz&quo t;) case (ECF No. 236); and (2) Defendants' Letter Motion to compel additional discovery relating to Plaintiff's production of 16,789 files (ECF No. 238.) Defendants' Letter Motions are GRANTED IN PART and DENIED IN PART, as fol lows: 1. Plaintiff shall meet and confer with Defendants regarding the production of additional Google Analytics and GoDaddy web traffic reports and related information in order that Defendants may obtain relevant data and information without undue burden being imposed upon Plaintiff. If the parties cannot reach agreement after meeting and conferring, they shall submit a joint letter to the Court no later than April 30, 2021, so that the Court may resolve any remaining disputes. 2. No later than April 13, 2021, Plaintiff shall produce to Defendants an unredacted copy of the discovery letter and exhibits filed by Ganz in the Ganz case. See Christine Asia Co. v. Alibaba Grp. Holding Ltd., 327 F.R.D. 52 (S.D.N.Y. 2018). 3. No later than April 27, 2021, the deposition of Jared Lader ("Lader") will be reopened for a period not to exceed two hours for the limited purpose of examining him regarding the 16,789 files that were produced after Lader's depositi on was conducted. The deposition shall be conducted by remote means at a reasonable time of day that is convenient to Lader, consistent with his class and work schedules. SO ORDERED.. (Signed by Magistrate Judge Stewart D. Aaron on 4/6/2021) (ks)
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Filing
234
ORDER: Having reviewed the parties joint letter regarding the sealing of the documents set forth in the Court's February 24, 2021 Order (see Order, ECF No. 207; Letter, ECF No. 232), it is hereby Ordered as follows: The Clerk of Court i s directed to unseal the documents filed at ECF Nos. 137 and 149. Plaintiff's application to seal ECF Nos. 179, 187, 194, 199, 200 and 203 is GRANTED. The Court has considered the test set forth in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) and finds that sealing is justified for the reasons set forth in the parties' Letter. So Ordered (Signed by Magistrate Judge Stewart D. Aaron on 3/29/2021) (js)
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Filing
233
ORDER: Following the Court's preliminary in camera review of additional exemplar documents, it is hereby ORDERED that, in its submission to be filed on April 22, 2021, Plaintiff shall address the 21 items listed in this Order. (Signed by Magistrate Judge Stewart D. Aaron on 3/28/21) (Aaron, Stewart)
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Filing
229
ORDER granting 228 Letter Motion to Adjourn Conference. Request GRANTED. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 3/26/2021) (kl)
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Filing
221
ORDER denying as moot 213 Letter Motion to Seal; denying as moot 214 Motion re: 213 LETTER MOTION to Seal :Letter Motion to file certain documents under seal, including (i)Defendants Objections to Magistrate Judge Aarons Opinion an d Order dated February 23, 2021 and (ii) Exhibits 2, 4, and 6-8 thereto addressed to Judge Lorn, 214 MOTION DEFENDANTS GOOGLE LLC, ALPHABET INC., AND XXVI HOLDINGS INC.S NOTICE OF MOTION TO SET ASIDE OR MODIFY MAGISTRATE JUDGE AARONS FEBRU ARY 23, 2021 OPINION & ORDER (ECF NO. 206) re: 206 Order on Motion for Local Rule 37.2 Conference. It is hereby ORDERED that, Defendants motions at Dkt. Nos. 213 and 214 are denied as moot. The Clerk of Court is respectfully directed to close the motions at Docket Nos. 213 and 214. (As further set forth in this Order.). (Signed by Judge Lorna G. Schofield on 3/12/2021) (cf)
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Filing
220
ORDER: Following a telephone conference with the parties on March 11, 2021, and for the reasons stated on the record, it is hereby Ordered as follows: No later than Thursday, March 18, 2021, the parties shall submit a joint letter regarding any request to extend the deadline for the completion of fact and expert discovery. No later than, Friday, March 26, 2021, the parties shall submit the following exemplar documents for the Courts in camera review: as set forth in this order. The parties shall meet and confer regarding the remaining disputes involving Zach Dennis, Michael Levine, Tim Quinn and Tom Shane (see 3/9/2021 Joint Letter at 11- 12) and, if they cannot, agree shall each submit one exemplar for each individual no later than Friday, March 26, 2021. The parties shall meet and confer regarding the alleged "Irregularities in the Third Parties' Privilege Logs." (3/9/2021 Joint Letter at 12.) No later than Apr il 1, 2021, Defendants shall file a comprehensive brief with respect to: as set forth in this order. Plaintiff shall file its response no later than April 22, 2021 and Defendant shall file any reply no later than May 6, 2021. The Court will hold oral argument via telephone on Tuesday, May 11, 2021 at 2:00 p.m. At the scheduled time, the parties shall each separately call (888) 278-0296 (or (214) 765-0479) and enter access code 6489745. So Ordered. (Responses due by 4/22/202 1, Replies due by 5/6/2021.), ( Oral Argument set for 5/11/2021 at 02:00 PM before Magistrate Judge Stewart D. Aaron.) (Signed by Magistrate Judge Stewart D. Aaron on 3/12/2021) (js) (Main Document 220 replaced on 3/12/2021) (kl). Modified on 3/12/2021 (kl).
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Filing
219
ORDER re: 206 Order on Motion for Local Rule 37.2 Conference. NOW, THEREFORE, it is hereby ORDERED, as follows: 1. The February 23 Opinion (ECF No. 206) is hereby VACATED. 2. No later than March 17, 2021, Plaintiff may submit legal argument rega rding the foregoing language in Ambac, as well as evidence and/or legal argument as to why the presence of agents was required on the following exemplar documents to enable the attorney-client communication: Doc. No. 20201106_817-000022018, Doc. No . ID20201106_817-000057003, Doc. No. 20201106_817-000052461, Doc. No. 20201106_817-000052477-78, Doc. No. 20201106_817-000066660, Doc. No. 20201121_546-000019059, Doc. No. 20201121_546-000019983; Doc. No. 20201106_817-000033649, Doc. No. 20201106_817 -000033650 and Doc. No. 20201106_817-000033669. No later than March 22, 2021, Defendants may submit a response to any submission from Plaintiff. 3. The parties shall appear for a telephone conference with the Court on Thursday, March 11, 2021, a t 5:00 p.m. to discuss what additional privilege issues may be further addressed between Plaintiff and Defendants and submitted to the Court so that such issues may be addressed in the Amended Opinion and Order that the Court intends to issue . At the scheduled time, the parties shall each separately call (888) 278-0296 (or (214) 765-0479) and enter access code 6489745. It is the Courts intention to address all the overarching privilege issues in its Amended Opinion and Order so that any objections the parties wish to make to Judge Schofield from the Court's privilege rulings can be made and decided a single time. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 3/10/2021) (kl)
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Filing
212
ORDER: Given Defendants' stated intention to file objections to my Opinion and Order, dated February 23, 2021, pursuant to Fed. R. Civ. P. 72(a), any further resolution of privilege issues by me, and any further privilege-related document produ ction and privilege-related discussions between the parties, shall await Judge Schofield's ruling on the objections. In addition, Defendants' Letter Motion filed at ECF Nos. 202/203 is DENIED WITHOUT PREJUDICE. No later than five (5) days a fter Judge Schofield's ruling on the objections, the parties shall meet and confer in a good faith effort to resolve any remaining privilege disputes. If they are unable to resolve such disputes, within seven (7) days after the initial meet and confer session, Defendants shall file a Letter Motion with the Court raising any remaining privilege issues. The Court shall set a briefing schedule for such Letter Motion after it is filed. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 3/9/21) (Aaron, Stewart)
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Filing
207
ORDER: NOW, THEREFORE, it is hereby ORDERED that, no later than March 26, 2021, the parties shall file a joint letter setting forth the specific basis for why confidential treatment is justified with respect to each of these documents. The pa rties are reminded that filing under seal must be narrowly tailored and consistent with the presumption of public access to judicial documents. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006); see also Brown v. Maxwell, 929 F.3d 41, 47 (2d Cir. 2019). So Ordered. (Signed by Magistrate Judge Stewart D. Aaron on 2/24/2021) (js)
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Filing
206
ORDER with respect to 186 Letter Motion for Local Rule 37.2 Conference; with respect to 187 Letter Motion for Local Rule 37.2 Conference: Plaintiff shall produce to Defendants within seven (7) days of the date of this Order the following exemp lar documents: Doc. No. ID004208, Doc. No. ID003100-01, Doc. No. ID004795, Doc. No. ID006008-09, Doc. No. 20201106_817-000034942, Doc. No. 20201106_817-000052471, Doc. No. ID004912, Doc. No. 20201106_817-000052477-78 (with redactions as noted above), Doc. No. 20201106_817-000023464, Doc. No. ID007077, Doc. No. 20201106_817-000035505, Doc. No. 20201106_817-000033669 (with redaction as noted above), Doc. No. 20201121_546-000450487, Doc. No. ID004914 and Doc. No. ID007363. No later than March 2, 20 21, the parties shall meet and confer as set forth above. No later than March 5, 2021, the parties shall file a joint letter with the Court advising the Court of the status of the meet and confer process. (Signed by Magistrate Judge Stewart D. Aaron on 2/23/2021) (Aaron, Stewart)
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Filing
197
ORDER: On Monday, February 22, 2021, the Court will be holding a remote oral argument at 2 p.m. EST. During the oral argument, Plaintiff's counsel shall be prepared to address the following questions: (1) Did the law firm Wyman & Isaacs LLP hav e a written engagement or retainer agreement with Steve Garchik, Stelpro Investors LLC ("Stelpro"), SJM Partners, Allan Cohen and/or Taral Productions, LLC ("Taral")? If so, when was or were such agreement or agreements entered in to? (2) Was an agreement executed between Steve Garchik (or Stelpro) and Allan Cohen (or Taral) following the drafts that are contained in ID003101 and/or ID6009? If so, when? (3) Who is Richard Rakowski? Why are communications with him privileged? ( 4) When did Allan Cohen (or Taral), Robert Friedman (or Bungalow Media + Entertainment) and/or Steve Garchik (or SJM Partners) "formalize[] their joint venture in [the] written agreement" referred to in Plaintiff's February 16, 2021 Le tter Response (see ECF No. 194 at 9)? In addition, no later than Friday, February 19, 2021, Plaintiff shall file with the Court the following documents: (1) any agreement Wyman & Isaacs LLP had with Steve Garchik, Stelpro, SJM Partners, Allan Cohen a nd/or Taral (see paragraph 1 above); (2) any agreement executed between Steve Garchik (or Stelpro Investors LLC) and Allan Cohen (or Taral) (see paragraph 2 above); and (3) the written agreement referred to in paragraph 4 above. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 2/17/2021) (Aaron, Stewart)
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Filing
184
ORDER: granting in part and denying in part 178 Letter Motion for Local Rule 37.2 Conference. Before the Court is Plaintiff's Letter Motion for a protective order to limit the fact deposition of Stephen Garchik and the Rule 30(b)(6) depositio n of SM Kids, LLC. (Letter Motion, ECF No. 178.) Following a telephone conference with the parties, and for the reasons further stated on the record, it is hereby Ordered that Plaintiff's Letter Motion is GRANTED IN PART and DENIED IN PART as fo llows: as set forth herein. The parties are directed to meet and confer with respect to the issue raised in Section IV of Plaintiff's motion (regarding testimony with respect to events prior to 2018) and, no later than Tuesday, February 9, 2021, shall file a joint letter setting forth any remaining issues. The joint letter also shall address whether the parties have reached a stipulation with respect topic 10. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 2/05/2021) (ama)
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Filing
176
ORDER granting in part and denying in part 168 Letter Motion for Extension of Time to Complete Discovery; granting in part and denying in part 172 Letter Motion for Discovery The Clerk of Court is respectfully requested to unseal the document filed at ECF No. 171. So Ordered (Signed by Magistrate Judge Stewart D. Aaron on 1/26/2021) (js)
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Filing
174
ORDER granting in part and denying in part 165 Letter Motion to Adjourn Conference. The application is GRANTED in part. The deadlines set by Judge Schofield are adjourned sine die, as all pre-trial matters are under the supervision of Judge Aaro n. Within two weeks of the completion of all discovery, any party wishing to file a dispositive motion, shall file a pre-motion letter as provided in Judge Schofields Individual Rules, and the opposing party shall respond. Judge Schofield will sched ule a pre-motion conference at that time. If neither party wishes to file a dispositive motion, within two weeks of the close of all discovery, the parties shall jointly file a letter requesting a trial date. (Signed by Judge Lorna G. Schofield on 1/25/2021) (cf)
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Filing
159
ORDER granting in part and denying in part 153 Letter Motion for Local Rule 37.2 Conference. Application GRANTED IN PART and DENIED IN PART. Google now has provided dates certain for the four depositions at issue. (See ECF No. 157.) The deposit ions shall go forward on the dates provided by Google unless Plaintiff's counsel is unavailable or the parties agree otherwise. In either case, the depositions still shall occur prior to the close of fact discovery. Google's related request for an extension of the fact discovery deadline (see id.) is granted and the Court adopts the proposed schedule set forth in ECF No. 157-1. SO ORDERED.. (Signed by Magistrate Judge Stewart D. Aaron on 12/17/2020) (ks)
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Filing
158
ORDER granting in part and denying in part 150 Letter Motion for Local Rule 37.2 Conference: The Letter Motion submitted on behalf of Plaintiff SM Kids, LLC ("SM Kids") and Non-Parties Allan Cohen, Jared Lader, Michael Cohen, Roxanne Escander, David Evans, Brian Tucker, and PCP Operating LLC (ECF No. 150) is GRANTED IN PART and DENIED IN PART, as further set forth in this order. (Signed by Magistrate Judge Stewart D. Aaron on 12/15/2020) (jwh)
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Filing
152
ORDER granting in part and denying in part 138 Letter Motion for Conference; granting in part and denying in part 139 Letter Motion for Local Rule 37.2 Conference. This Order addresses the discovery issues raised in Plaintiff's Letter M otion, dated November 27, 2020 (ECF No. 138) and Defendants' Letter Motion, dated November 27, 2020 (ECF No. 139). These motions are GRANTED IN PART and DENIED IN PART. It is hereby ORDERED, as follows: 1. Plaintiff's request to compel De fendants to produce all deposition transcripts from the Silvers v. Google litigation (see ECF No. 148 at 3) is denied, with a proviso, as further set forth in this Order. 2. Plaintiff's request to compel Defendants to produce all responsive and non-privileged electronically stored information, including emails, from January 1, 2008 through March 23, 2018 responsive to RFP Nos. 1, 3, 7, 11, 14, 16, 25, 26, and 30 (see ECF No. 148 at 3) is denied without prejudice. 3. With respect to the pa rties' dispute regarding search terms as to two custodians (see ECF No. 151 at 2), Plaintiff shall cooperate with Defendants in seeking to reduce the hit counts to a more manageable number, using all reasonable and feasible tools at Plaintiff� 39;s disposal, as further set forth. 4. With respect to Defendants' request for an order directing Plaintiff to produce documents from the nine third parties by a date certain (see ECF No. 151 at 1), the Court hereby Orders that Plaintiff shall commence a rolling production of documents from such third parties no later than December 23, 2020. In addition, no later than December 31, 2020, Plaintiff shall file a letter with the Court as to the status of its production. The Court expects a lacrity and diligence from both sides in the discovery process. 5. With respect to Defendants' request for an extension of deadlines (see ECF No. 151 at 1), either party may make an application for extension of any interim discovery deadline as and when the need arises for good cause shown. 6. Except as set forth herein, the relief sought in ECF Nos. 138 and 139 is denied. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 12/9/2020) (mml)
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Filing
128
ORDER re: 127 Letter, filed by Google LLC, Alphabet Inc., XXVI Holdings Inc.: In its discretion, the Court hereby resolves the parties' discovery disputes, as follows: 1) Pursuant to Judge Schofield's Individual Rule II(A)(1)(b ), except as otherwise stipulated by the parties, the date range to be searched shall commence no earlier than February 23, 2013. The Court does not find that good cause exists to justify a date range for RFP 15 and 16 starting on January 1, 2005. Ra ther, Defendants' agreed-upon start date for RFP 15 and 16 of January 1, 2008 is reasonable. 2) No later than October 30, 2020, Plaintiff shall disclose to Defendants the third-party custodians from whom it intends to collect documents. 3) No la ter than October 30, 2020, Defendants shall advise Plaintiff whether they agree to search the records of Tim Alger, Pavni Diwanji, Shimrit Ben-Yair and Malik Ducard as custodians. 4) Based upon the representations made in this letter by Plaintiff 9;s counsel, the Court shall enter no orders at this time regarding the subject boxes, email server or file server; Defendants may inquire at depositions about them. 5) The parties shall continue to meet and confer regarding Plaintiff's use of B oolean search terms, as well as the search terms to be used by third-party custodians, and seek Court intervention, as needed. 6) With respect to the search term "Ganz," either both parties shall use it as a search term, or neither shall do so. If it is agreed that both parties will use that search term, and an excessive number of hits results from use of that term, the parties shall meet and confer to seek to minimize any undue burden. 7) On proportionality grounds, the Court does not compel Defendants to use the four sets of search terms to which Defendants object. (Signed by Magistrate Judge Stewart D. Aaron on 10/24/2020) (Aaron, Stewart)
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Filing
126
ORDER granting 125 Letter Motion for Extension of Time to File. (Signed by Magistrate Judge Stewart D. Aaron on 10/21/2020) (Aaron, Stewart)
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Filing
122
ORDER re: 120 Letter filed by SM Kids, LLC: Request GRANTED. The 10/28/2020 telephonic oral argument is canceled. (Signed by Magistrate Judge Stewart D. Aaron on 10/17/2020) (Aaron, Stewart)
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Filing
118
AMENDED ORDER: Following a telephone conference with the parties, and for the further reasons set forth on the record, it is hereby ORDERED, as follows: 1. Defendants' Letter Motion (ECF No. 113) is GRANTED IN PART and DENIED IN PART. In resp onse to Defendants' Request No. 2, Plaintiff shall produce all hard copy documents contained in the boxes that were discussed in today's conference and with respect to ESI shall apply the search terms to be negotiated. In response to Req uest No. 10, Plaintiffs shall produce all documents and communications from January 1, 2008 to March 26, 2018 concerning SM Kids, LLC, including but not limited to its formation and business. No later than October 16, 2020, Plaintiff shall file it s anticipated Letter Motion to compel on the issues discussed during todays conference. Defendants shall respond no later than October 22, 2020. Plaintiff shall reply by October 26, 2020. The Court shall hold a telephonic oral argument on the moti on on October 28, 2020 at 10:00 a.m. At the scheduled time, the parties shall each separately call (888) 278-0296 (or (214) 765-0479) and enter access code 6489745. (Telephonic Oral Argument set for 10/28/2020 at 10:00 AM before Magistrate Judge Stewart D. Aaron.) (Signed by Magistrate Judge Stewart D. Aaron on 10/16/2020) (kl)
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Filing
112
ORDER: It is hereby Ordered that, no later than Friday, October 9, 2020, the parties shall file a Joint Letter setting forth each partys position with respect to all open discovery issues. The parties shall appear for a Telephone Conference in the above-captioned matter on Wednesday, October 14, 2020, at 2:00 p.m. EST. At the scheduled time, the parties shall each separately call (888) 278-0296 (or (214) 765-0479) and enter access code 6489745. SO ORDERED. (Telephone Conference set for 10/14/2020 at 02:00 PM before Magistrate Judge Stewart D. Aaron.) (Signed by Magistrate Judge Stewart D. Aaron on 10/2/2020) (kl)
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Filing
108
ORDER granting 107 LETTER MOTION for Extension of Time to File Parties Status Letter. The application is GRANTED. The deadline for the parties to file their joint status letter is hereby adjourned from September 28, 2020 to September 29, 2020. SO ORDERED. (Signed by Judge Lorna G. Schofield on 9/28/2020) (jca)
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Filing
93
ORDER: It is hereby ORDERED that the parties shall, by July 3, 2020, file a joint letter proposing next steps. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 6/26/2020) (cf)
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Filing
76
OPINION AND ORDER re: 62 LETTER MOTION for Oral Argument addressed to Judge Lorna G. Schofield from Brendan J. Hughes dated October 5, 2018. filed by Google LLC, Alphabet Inc., XXVI Holdings Inc.,. For the foregoing reasons, D efendants motion to dismiss is GRANTED. The Clerk of Court is directed to close the open motion at Docket No. 62 and close the case. (Signed by Judge Lorna G. Schofield on 7/16/2019) (ks) Transmission to Orders and Judgments Clerk for processing.
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