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LLC v. Marks

United States District Court, D. New Jersey

May 10, 2019

HIGH 5 GAMES, LLC, a Delaware Limited Liability Company, f/k/a PTT, LLC, Plaintiff/Counterclaim Defendant,
v.
DANIEL MARKS, an individual; JOSEPH MASCI, an individual; BRIAN KAVANAGH, an individual; MARKS STUDIOS, LLC, an entity d/b/a GIMME GAMES; ARISTOCRAT TECHNOLOGIES, INC., an entity, ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED, an entity, ARISTOCRAT LEISURE LIMITED, an entity; PRODUCT MADNESS, INC., an entity; GRANT BOLLING, an individual; JOHN SMITH(s) 1-7; and XYZ COMPANIES 1-7, Defendants/Counterclaim Plaintiffs. Bates Subject Date Author Recipient Copies Basis Priv Date Author Recipient Copies Basis Priv

          ORDER & OPINION OF THE SPECIAL MASTER

          DENNIS M. CAVANAUGH, U.S.D.J

         This matter comes before the Special Master upon defendants Daniel Marks, Joseph Masci, Brain Kavanagh, Grant Boiling, Marks Studios, LLC ("Marks Studios"), Aristocrat Technologies, Inc. ("ATI"), Aristocrat Technologies Australia Pty Ltd. ("ATA"), Aristocrat Leisure Limited ("ALL"), and Product Madness, Inc's ("Product Madness")(collectively, "Defendants") motion to compel disclosure of documents from Plaintiff High 5 Games, LLC ("H5G"). After considering the submissions of the parties, based upon the following, it is the opinion of the Special Master that Defendants* motion is GRANTED.

         DISCUSSION

         I. Background

         This is a trade secret misappropriations and patent infringement case. Defendants seek to compel the disclosure of certain documents clawed back by H5G on January 16, 2019, under an assertion of privilege. The documents in question had been produced by H5G and bore bates stamp numbers: P000120686-120680, P000027697-27698, P00 1469198-1469204, P001440154-1440173, P000139808-139817, P000117837-117843, P000090017-90023, P000048361-48368, P000023624-23643, P000140740, and P002504903.

         On July 26, 2016, United States Magistrate Judge Mark Falk entered an order pursuant to Federal Rule of Evidence 502(d) supplementing the parties' Discovery Confidentiality Order ("Rule 502(d) Order")- The Rule 502(d) Order governs the claw back of documents in this matter.

         The deposition of Stuart Zoble was conducted on January 11, 2019. During the deposition, H5G refused to allow Mr. Zoble to testify regarding certain draft patent applications pertaining to the '852 patent. The documents at issue had previously been produced by H5G.

         By correspondence dated January 16, 2019, H5G formally requested to claw back the documents at issue during Mr. Zoble's deposition, which it asserted were inadvertently produced. H5G enclosed a privilege log, Attachment A, to its correspondence to support its claims of privilege. The privilege log provided the following information:

Bates
Subject
Date
Author
Recipient
Copies
Basis
Priv

P000120686 -120680

Draft

Patent

Application

4/5/10

Draft patent application prepared at the direction of attorneys and/or patent agents in furtherance of preparing, filing, and prosecuting a patent application

AC; PA

P000027697

Email re

6/22/10

Stuart

Dick

Christina

Email to patent attorney and patent

AC;

-27698

Draft

Patent

Application

4:35:16 PM

Zoble

Schulze

Evans;

Anthony

Singer

agent in furtherance of preparing, filing, and prosecuting a patent application and consulting with or giving advice to a client in furtherance of preparing, filing, and prosecuting a patent application

PA

P001469198 -1469204

Draft

Patent

Application

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of attorneys and/or patent agents in furtherance of preparing, filing, and prosecuting a patent application.

AC; .PA

P001440154 -1440173

Draft

Patent

Application

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of attorneys and/or patent agents in furtherance of preparing, filing, and prosecuting a patent application

AC; PA

P000139808 -139817

Draft

Patent

Application

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of attorneys and/or patent agents in furtherance of preparing, filing, and prosecuting a patent application

AC; PA

P000117837 -117843

Draft

Patent

Application

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of attorneys and/or patent agents in furtherance of preparing, filing, and prosecuting a patent application

AC; PA

P000090017 -90023

Draft

Patent

Application

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of attorneys and/or patent agents in furtherance of preparing, filing, and prosecuting a patent application

AC; PA

P000048361 -48368

Draft

Patent

Application

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of attorneys and/or patent agents in furtherance of preparing, filing, and prosecuting a patent application

AC; PA

P000023624 -23643

Draft

Patent

Application

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of attorneys and/or patent agents in furtherance of preparing, filing, and prosecuting a patent application

AC; PA

P000140740

Email re Draft Patent Application

4/19/11

10:16:22

AM

Stuart Zoble

Jonathan Ballone; Philip Welty;

Maykyta Panasenko

Internal email among coinventors forwarding draft patent application prepared at the direction of attorneys and/or patent agents in

furtherance of preparing, filing, and prosecuting a patent application

AC; PA

P002504903

Email re Draft Patent Application

4/19/11

10:16:22

AM

Stuart Zoble

Jonathan

Ballone;

Philip

Welty,

Maykyta

Panasenko

Internal email among coinventors forwarding draft patent application prepared at the direction of attorneys and/or patent agents in furtherance of preparing, filing, and prosecuting a patent application

AC;

PA

         That same day, Defendants disputed H5G's claims of privilege and stated that they were considering contesting the privilege assertion pursuant to paragraph (c) of the Rule 502(d) Order. H5G responded by email on January 25, 2019. Attached to H5G's email was a supplemental privilege log. This supplemental privilege log provided the following information:

Date
Author
Recipient
Copies
Basis
Priv

4/5/10

Draft patent application prepared at the direction of attorneys Dick Schulze and Bob Ryan in furtherance of preparing, filing, and prosecuting a patent application

AC

6/22/10 4:35:16 PM

Stuart Zoble

Dick Schulze

Christina Evans; Anthony Singer

Email to patent attorney Dick Schulze in furtherance of preparing, filing, and prosecuting a patent application and consulting with or giving advice to a client in furtherance of preparing, filing, and prosecuting a patent application

AC

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of attorneys Dick Schulze and Bob Ryan in furtherance of preparing, filing, and prosecuting a patent application

AC

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of Dick Schulze and Bob Ryan in furtherance of preparing, filing, and prosecuting a patent application

AC

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of Dick Schulze and Bob Ryan in furtherance of preparing, filing, and prosecuting a patent application

AC

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of Dick Schulze and Bob Ryan in furtherance of preparing, filing, and prosecuting a patent application

AC

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of Dick Schulze and Bob Ryan in furtherance of preparing, filing, and prosecuting a patent application..

AC

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of Dick Schulze and Bob Ryan in furtherance of preparing, filing, and prosecuting a patent application

AC

6/23/10

Stuart Zoble

Draft patent application prepared at the direction of Dick Schulze and Bob Ryan in furtherance of preparing, filing, and prosecuting a patent application

AC

4/19/11

10:16:22

AM

Stuart Zoble

Jonathan

Ballone;

Philip

Welty,

Maykyta

Panasenko

Internal email among coinventors forwarding draft patent application prepared at the direction of attorneys Dick Schulze and Bob Ryan in furtherance of preparing, filing, and prosecuting a patent application

AC

4/19/11

10:16:22

AM

Stuart Zoble

Jonathan

Ballone;

Philip

Welty;

Maykyta

Panasenko

Internal email among coinventors forwarding draft patent application prepared at the direction of attorneys Dick Schulze and Bob Ryan in furtherance of preparing, filing, and prosecuting a patent application

AC

         EL. Arguments of the Parties

         Defendants

         Defendants seek to compel the disclosure of certain documents recently clawed back by H5G under an assertion of privilege. Defendants assert that as set forth in the Court's Rule 502(d) Protective Order, the burden of proving privilege lies with H5G. Thus Defendants argue that H5G bears the burden of demonstrating that the claimed ...


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