Court Imposes $25K in Sanctions for Failure to Comply with Court’s Discovery Order in NFL Video Game Case

18 May 2018

In Davis v. Electronic Arts, Inc., No. 10-cv-03328-RS-DMR, (N.D. California, April 3, 2018), the United States District Court Northern Division California determined Plaintiffs had failed to comply with Court’s discovery order in a timely fashion.

Plaintiffs Michael Davis, Vince Ferragamo, and Billy DuPree, et al. (“Plaintiffs”), sued Electronic Arts, Inc. (“EA”) for misappropriating their images in the Madden video game. Plaintiffs are retired NFL football players. EA develops and publishes video games. In July 2010, Plaintiffs filed a complaint on behalf of themselves and a proposed class of approximately 6,000 retired NFL players alleging that EA violated Plaintiffs’ statutory and common law rights of publicity through unauthorized use of their likenesses in EA’s Madden NFL video game franchise. Specifically, Plaintiffs allege that EA releases new Madden NFL video games every year, producing different editions for different video game platforms, and that many editions of the games include “historic teams.” According to Plaintiffs, the only player characteristic that EA changes from the real-life retired NFL players is the jersey number. Plaintiffs allege that EA did not obtain required licenses or authorizations to use the putative class members’ likenesses.

EA filed discovery letter briefs in which it moved to compel Plaintiffs to provide further responses to discovery. The court ordered the parties to meet and confer and to file joint letters regarding any remaining disputes. The court held a hearing on September 14, 2017 regarding the issues raised in the parties’ subsequent joint letters and granted in part EA’s motions to compel further responses to requests for the production of documents, interrogatories, and requests for admission. The court ordered Plaintiffs to serve amended responses by certain dates. A day after the Court-ordered deadline, Plaintiffs filed incomplete responses. EA asserts that Plaintiffs did not send EA a copy of the documents.

EA moved for sanctions, asking for evidentiary sanctions tied to the discovery responses that it contends remain deficient. Plaintiffs do not dispute that they served their responses after the court-ordered deadline. However, they assert that they timely produced approximately 13,000 pages of “reference materials” and 30 gigabytes of data. According to Plaintiffs, EA has suffered no prejudice due to their failure to timely serve discovery responses, as Plaintiffs provided responses within two business days of the due date. EA argues that the discovery at issue goes to the heart of many of Plaintiffs’ claims, and that Plaintiffs’ failure to timely serve full and complete responses have precluded its ability to move for summary judgment. After reviewing the amended responses, the Court agreed that the responses were deficient and do not comply with its orders.

The Court imposed a sanction of $25,000 for the failures.