Case 2:16-cv-05871-RSWL-AS Document 18 Filed 08/29/16 Page 1 of 15 Page ID #:241

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RYAN M. NISHIMOTO (State Bar No. 235208)

ryan.nishimoto@aporter.com
AMANDA SEMAAN (State Bar No. 293896)
amanda.semaan@aporter.com
ARNOLD & PORTER LLP
777 South Figueroa Street, Forty-Fourth Floor
Los Angeles, California 90017-5844
Telephone: 213.243.4000
Facsimile: 213.243.4199
Attorneys for Defendants
STEFAN DELGARDO ARGOTE, MATTHIAS
OLTMANN, TYRONE TOM PAUER, and
CHACHANI MISTI Y PICHU PICHU S.R.L.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

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RIOT GAMES, INC., a Delaware

corporation,

The Honorable Alka Sagar

Plaintiff,

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Case No. 2:16-CV-5871-RSWL-AS

v.
STEFAN DELGADO ARGOTE a/k/a ,
Ohm and Burberry; MATTHIAS
OLTMANN a/k/a Joduskame,
Rolle3k, and Sheppard; TYRONE
TOM PAUER a/k/a Beaving;
CHACHANI MISTI Y PICHU PICHU
S.R.L., a company organized under the
laws of Peru; and DOES 1-10,
inclusive,
Defendants.

DEFENDANTS OPPOSITION TO
PLAINTIFFS EX PARTE
APPLICATION FOR LEAVE TO
TAKE LIMITED IMMEDIATE
DISCOVERY

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36562206

DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE

TO TAKE LIMITED IMMEDIATE DISCOVERY

Case 2:16-cv-05871-RSWL-AS Document 18 Filed 08/29/16 Page 2 of 15 Page ID #:242

TABLE OF CONTENTS

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I.

INTRODUCTION ...............................................................................................1

II.

PROCEDURAL AND FACTUAL BACKGROUND........................................1

III.

ARGUMENT.......................................................................................................3

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A.

The Evidence Fails To Support Riots Assertion That Chachani Is A

Shell Entity................................................................................................4

B.

Riot Fails To Show How It Will Suffer Irreparable Prejudice Unless

Expedited Discovery Is Granted. ..............................................................6

C.

No Good Cause Exists for Pre-Service Discovery. ..................................9

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IV.

OBJECTION TO EVIDENCE ..........................................................................11

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V.

CONCLUSION .................................................................................................11

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TABLE OF AUTHORITIES

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Page(s)

CASES

Am. LegalNet, Inc. v. Davis,

673 F. Supp. 2d 1063 (C.D. Cal. 2009)............................................................... 3

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Columbia Ins. Co. v. Seescandy.com,

185 F.R.D. 573 (N.D. Cal. 1999) ...................................................................... 10
Gillespie v. Civiletti,
620 F.2d 637 (9th Cir. 1980) ............................................................................... 9
Hard Drive Prods., Inc. v. Doe,
2012 WL 90412 (E.D. Cal. Jan. 11, 2012).......................................................... 8
In re Intermagnetics America, Inc.,
101 B.R. 191 (C.D. Cal. 1989)............................................................................ 3
Maclin v. Paulson,
627 F.2d 83 (7th Cir. 1980) ............................................................................... 10
Mission Power Engg Co. v. Continental Cas. Co.,
883 F. Supp. 488 (C.D. Cal. 1995)..........................................................3, 4, 7, 9
Munz v. Parr,
758 F.2d 1254 (8th Cir. 1985)........................................................................... 10
Patrick Collins, Inc. v. John Does 1 through 37,
2012 WL 2872832 (E.D. Cal. July 11, 2012) ..................................................... 3

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Semitool, Inc. v. Tokyo Electron Am., Inc.,

208 F.R.D. 273 (N.D. Cal. 2002) ...................................................................... 11
Skout, Inc. v. Jen Processing, Ltd.,
2014 WL 3897166 (N.D. Cal. August 7, 2014) .................................................. 9
UMG Recordings, Inc. v. Doe,
2008 WL 4104214 (N.D. Cal. Sept. 2, 2008).................................................... 10
Valentin v. Dinkins,
121 F.3d 72 (2d Cir. 1997) ................................................................................ 10
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FEDERAL AND LOCAL RULES

Fed. R. Civ. P. 15(a) ...................................................................................................... 4

Fed. R. Civ. P. 26(d) ...................................................................................................... 3

Fed. R. Civ. P. 26(f)....................................................................................................... 3

Local Rule 7-19.............................................................................................................. 2

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I.

INTRODUCTION
Plaintiff Riot Games, Inc. (Riot) already has all the information it needs to

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proceed with its lawsuit against each of the named defendants, and has already been

informed that the named defendants are complying with their document preservation

obligations under the Federal Rules. There is no emergency. Rather, Riot appears to

be trying to take advantage of the fact that the defendants are located overseas and

attempting to engage the Court through ex parte proceedings before defendants have

even been served with process. Indeed, Riot first tried to file this ex parte application

without informing counsel for the defendants that it was coming, even though counsel

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for both parties had discussed this case on the phone hours before the first application

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was filed. Riot withdrew that application (as it had to, for failure to comply with the

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Local Rules), but then re-filed it despite information and assurances provided by

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defendants counsel. Unfortunately, Riot mischaracterizes these conversations and is

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less than forthcoming with information already available to it regarding Chachani

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Misti y Pichu Pichu S.R.L. (Chachani) and those responsible for Chachani. Simply

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stated, Riots highly unusual ex parte application (the Application) tries to create

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an issue where there is none. It should be denied because it fails to show that Riot

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has made a good faith effort to comply with the requirements of service of process

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and specifically identify defendants, let alone demonstrate the existence of an

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emergency warranting ex parte relief.

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II.

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PROCEDURAL AND FACTUAL BACKGROUND

Riot filed its complaint against Chachani, Stefan Delgado Argote, Matthias

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Oltmann, and Tyrone Tom Pauer (collectively, Defendants), on August 5, 2016, a

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mere 24 days ago. Each Defendant is located outside the United States (Chachani in

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Peru and the individual defendants in Germany). The complaint alleges three counts:

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violation of the anti-circumvention provisions of the Digital Millennium Copyright

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Act (DMCA); intentional interference with contract; and unfair competition. (Dkt.

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No. 1.) To date, none of the Defendants have been served with process nor have
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appearances been made on their behalf (undersigned counsel is specially appearing

for the purpose of opposing the Application).

The Application is essentially the same ex parte application Riot filed earlier in

the week which failed to comply with Local Rule 7-19. Specifically, Riot never

raised the application with Defendants counsel prior to its filing, despite that counsel

for both parties had a telephone conversation about the case hours before the

application was filed. See Declaration of Ryan M. Nishimoto in Support of

Defendants Opposition to Plaintiffs Ex Parte Application for Leave to take Limited

Immediate Discovery (Nishimoto Decl.), 3. Riot withdrew the procedurally

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improper application on Tuesday, August 23. Id., 4 & Ex. A.

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In the days leading up to Riots filing of the current Application, counsel for

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the parties discussed the grounds for Riots request for early discovery and whether

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counsel for Defendants could accept service of the complaint and/or provide more

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information about individuals responsible for Chachani. Id. Defendants counsel

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explained that he did not have the authority to accept service but pointed out that Riot

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already appeared to have information available to it regarding Chachanis location,

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director, business activities, and alternate names. Id., 5, 6 & Ex. A. Specifically,

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Defendants counsel noted that the U.K. complaint attached to the attorney

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declaration filed in support of Riots first ex parte application disclosed Jaime

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Rosalino Prado Lira as Chachanis director and that the name CHAMISPI appears

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to be an acronym for Chachani Misti y Pichu Pichu S.R.L. Id., 6. Defendants

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counsel also noted that a Google search on CHAMISPI and Jaime Rosalino Prado

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Lira returns a website showing that CHAMISPI and Chachani share the same

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address in Peru and that Mr. Lira is CHAMISPIs Gerente General. Id., 6, Ex. B.

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Counsel for Defendants asked whether Riot had attempted to locate and serve

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Mr. Lira, but Riots counsel did not give a clear answer one way or another. Id., 6.

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Defendants counsel also advised Riots counsel that Defendants were aware of
their obligations to preserve documents and electronically stored information. Id.,
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7. Defendants counsel further noted that, generally speaking, removal of forum

postings from public view was a standard practice for web forums where, for

example, postings violate a forums policies. Id.

Despite Defendants counsels efforts to show Riot that it already had the

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information it needed and to provide Riot with assurances regarding document

preservation, Riot re-filed its Application on Friday, August 26, seeking the same

relief on the same grounds. Unfortunately, Riots Application and attorney

declaration omit significant portions of counsels conversations, and the Application

appears to be little more than a misguided effort by Riot to make an end run around

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the Federal Rules.

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III.

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ARGUMENT
Rule 26(d) of the Federal Rules of Civil Procedure provides that [a] party may

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not seek discovery from any source before the parties have conferred as required by

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Rule 26(f) except . . . when authorized by these rules, by stipulation, or by court

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order. Fed. R. Civ. P. 26(d). Courts in the Ninth Circuit apply a good cause test in

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deciding whether to grant motions for discovery in advance of a Rule 26(f)

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conference, i.e. expedited discovery. See Am. LegalNet, Inc. v. Davis, 673 F. Supp.

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2d 1063, 1066 (C.D. Cal. 2009) ([C]ourts may permit expedited discovery before the

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Rule 26(f) conference upon a showing of good cause (internal citation omitted)).

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The party seeking the expedited discovery bears the burden of showing good cause.

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Patrick Collins, Inc. v. John Does 1 through 37, 2012 WL 2872832, at *2 (E.D. Cal.

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July 11, 2012).

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Riots Application is an extraordinary motion requiring an extraordinary

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showing. As a deviation from the normal noticed-motion practice, ex parte motions

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are inherently unfair, and they pose a threat to the administration of justice. Mission

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Power Engg Co. v. Continental Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995); In

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re Intermagnetics America, Inc., 101 B.R. 191, 192-93 (C.D. Cal. 1989). A litigant

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can so deviate only upon a showing of irreparable prejudice and a lack of fault or at
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least excusable neglect. Mission Power, 883 F. Supp. at 492. Those circumstances

are rare, but they can arise when a real emergency exists, notice would allow an

adversary to flee or destroy evidence, or the matter relates to a motion for an order

shortening time where an exigency arises by no fault of the moving party. Id.

Riot has not and cannot make the required showing. Riot has not shown that it

will be irreparably prejudiced if it proceeds according to regular noticed motion

procedures, nor has it shown that it is proceeding ex parte due to no fault of its own.

On the contrary, Riot has ignored information that has been available to it since prior

to the filing of its first ex parte application. In fact, by refiling this Application

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despite Defendants counsels attempts to highlight the information already available

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to Riot, the only thing Riot has done is feign ignorance. Because Riot makes no

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showing whatsoever, let alone an extraordinary one, as to what purported emergency

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exists allowing it to go to the head of the line in front of all other litigants and

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receive special treatment, Mission Power, 883 F. Supp. at 492, this Application

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should be denied.

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To the extent that Riot later identifies other parties it wishes to add as

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defendants to this case, the Federal Rules of Civil Procedure provide a way for Riot

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to do this. See Fed. R. Civ. P. 15(a) (Leave to amend shall be freely give[n] when

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justice so requires.). The fact that there may be other doe defendants does not, by

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itself, justify extraordinary relief.

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A.

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The Evidence Fails To Support Riots Assertion That Chachani Is A

Shell Entity.

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Riot knows more about Chachani than it lets on in its Application, and appears

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to be feigning a certain amount of ignorance in an effort to bypass the normal

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discovery procedures set forth in the Federal Rules. Riots statement that

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Defendants counsel has refused to provide any information concerning the identity

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of the individuals behind Chachani (Ex Parte App. (App.) at 9-10) is misleading

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at best: Riot knows the name of Chachanis director and Defendants counsel
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expressly pointed this out. Nishimoto Decl., 6. More specifically, Riot is aware of

the following information, which Defendants counsel explained to Riots counsel

two days before Riot re-filed its Application and which Chachanis director has

further confirmed in a concurrently-filed affidavit:

Chachani is a company incorporated under the laws of the Republic of Peru

with company number 11298751 and that has its registered office at

Avenida Siglo XX nr 110-C, third floor, office 302, Arequipa, 040101. See

Declaration of Jaime Rosalino Prado Lira in Support of Defendants

Opposition to Plaintiffs Ex Parte Application (Lira Decl.), 2;

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Complaint 16; Declaration of Marc E. Mayer in Support of Plaintiffs Ex

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Parte Application (Mayer Decl.), Ex. 2 at 1.

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Jaime Rosalino Prado Lira is Chahanis director. See Lira Decl., 2; Mayer
Decl., Ex. 2 at 21.
Chachani does business under the name CHAMISPI, which is an

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acronym for Chachani Misti y Pichu Pichu S.R.L. Lira Decl., 3; Mayer

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Decl, Ex. 2 at 21; Nishimoto Decl., 4.

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Chachani owns and controls all rights to the LeagueSharp or L#

software. Lira Decl., 4; Mayer Decl., Ex. 2 at 4-5, 7.
Riot ignores this information in arguing that Chachani appears to be a shell

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company that may not actually exist and that it is a smokescreen used by

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anonymous individuals to conceal their identity. See App. at 5, 13. If there is any

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smokescreen here, it is the one Riot is creating. Riot has been less than transparent

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with the information in its possession and cannot show how the information set forth

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above is insufficient to identify those responsible for the software program at issue in

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the complaint. Stated simply, Riot already has what it needs.

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B.

Riot Fails To Show How It Will Suffer Irreparable Prejudice Unless

Expedited Discovery Is Granted.

Riot argues that the expedited discovery is necessary because, in the time it

will take to complete service on Chachani, evidence may be lost or destroyed, server

logs will disappear in the normal course of business, and the unknown defendants

may escape identification altogether. App. at 2, 13. In support of this, Riot argues

that Defendants are actively destroying evidence based on assertions that accounts

belonging to Mr. Argote, Mr. Pauer, and Mr. Oltmann have been removed from

LeagueSharp forums and that announcements have been removed from the website.

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Id. at 13; Mayer Decl., 11.

Each Defendant is aware of and complying with its and his obligations to

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preserve documents and electronically stored information under the Federal Rules.

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Lira Decl., 5; Nishimoto Decl., 7. Counsel for Defendants told this to Riots

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counsel two days before Riot re-filed its Application. Nishimoto Decl. 7. With

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regard to Riots argument that posts are being deleted from web forums (App. at 13),

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Mr. Lira has confirmed that posts that violate Chachanis policies are hidden from

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public view but are otherwise preserved. Lira Decl., 6 & Ex. A. In light of this,

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Riot fails to make the necessary showing of good cause for the expedited discovery it

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seeks, let alone the extraordinary showing that it must make to support relief on its ex

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parte application.

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Riot argues that it is possible that someone might dissolve or shutter

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Chachani before Riot can complete service on it. App. at 13. Riot offers no evidence

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showing this to be a particular threat in this case (the attorney declaration simply

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muses that it is possible that those responsible for LeagueSharp might elect to

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abandon Chachani and create a new entity while service is pending). See Mayer

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Decl., 14. Neither does Riot offer any authority that this possibility somehow

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supports ex parte relief. Instead, Riot implies that Chachani is operating with illicit

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intent by using a service called Cloudflare to hide the identity and location of their
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servers, (App. at 2), by conducting business through an anonymously-registered

Montenegro website, (App. at 1), by working in concert with individuals residing

in Germany, and under the auspices of a series of Peruvian corporations (App. at 1),

and by being represented by various counsel in California, Germany, and the United

Kingdom (App. at 1).

None of this suggests suspicious activity. Cloudflare is a popular service used

by companies worldwide to protect against DDoS attacks (i.e., attacks on the server

network to render it unusable), including by Riot itself for its League of Legends

game. See Nishimoto Decl., 8, Ex. C. The .me domain is the Internet country

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code top level domain for Montenegro and is operated by doMEn, a Montenegro-

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based company. See id., 9, Exs. D, E. Using this domain allows for the .me

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domain ending to complete the name Joduskame in the domain www.joduska.me.

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Working with individuals in other countries is perfectly legal. As to the series of

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Peruvian corporations that Riot complains of, this appears to be nothing more than a

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reference to Chachani and to Chachanis acronym, CHAMISPI. The fact that

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Defendants are represented by counsel in California is explained by the fact that Riot

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sued them in California. The individual defendants reside in Germany and retained

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German counsel to respond to cease and desist letters sent to them by Riot. See

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Mayer Decl., Ex. 1. And Chachani enforced its rights in the UK courts in 2015 in an

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action brought by UK counsel. See id., Ex. 2. None of this justifies the extraordinary

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relief sought by Riot. See Mission Power Engg Co, 883 F. Supp. at 490

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([D]erogatory allegations about an opponent in [ex parte] motion papers raise ethical

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problems for the lawyers and the court to the extent that the allegations are subjective

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or conclusory. . . . In papers prepared on short notice . . . the lawyers too often

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simply make allegations that have no supporting evidence to back them up.)

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Riot also argues that if it later identifies other individuals in foreign countries

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that it wants to add as defendants to this case, then it could take more time to effect

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service on those individuals. Again, Riot offers no authority showing how this mere

possibility supports ex parte relief.

Riots Application is wholly unlike the motion at issue in UMG Recordings,

Inc. v. Doe, which involved a suit brought against unknown individuals who were

illegally sharing copyrighted music files over peer-to-peer networks. 2008 WL

4104214, *5 (N.D. Cal. Sept. 2, 2008). As the court explained in that case, Plaintiffs

have no ability to determine a defendants true name other than by seeking the

information from the ISP (id. at *2) and, accordingly, granted limited, early

discovery to learn identifying information of users associated with the offending ISP

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addresses. Id. at *5-6. Here, Riot has already identified each of the Defendants it is

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suing and knows the name of Chachanis director. Riot is notas it alleges

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somehow unable to pursue its lawsuit absent its emergency request for expedited

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discovery. See Hard Drive Prods., Inc. v. Doe, 2012 WL 90412, at *2-3 (E.D. Cal.

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Jan. 11, 2012) (denying plaintiffs ex parte application for leave to take expedited

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discovery, where plaintiff had already discovered the name and contact information

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of the account holder of the IP address involved and could simply name the account

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holder as a defendant and serve him with process).

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By contrast, the ex parte relief Riot now seeks fundamentally prejudices

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Defendants, who have not been served with process and who have not appeared in

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this litigation. Moreover, the fact that this application was brought on an ex parte

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basis and not as a regularly noticed motion further prejudices Defendants ability to

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fully and completely respond to the arguments raised by Riot. As this Court has

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previously observed:

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The fact that opposing parties are usually given an

opportunity to argue or file opposing papers does not mask
the plain truth: these hybrid ex parte motions are inherently
unfair, and they pose a threat to the administration of
justice. They debilitate the adversary system. Though the
adversary does have a chance to be heard, the parties
opportunities to prepare are grossly unbalanced. Often, the
moving partys papers reflect days, even weeks, of
investigation and preparation; the opposing party has
perhaps a day or two. This is due primarily to
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gamesmanship. The opposing party is usually told by

telephone when the moving party has completed all
preparation of the papers and has a messenger on the way to

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court with them. The goal often appears to be to surprise

opposing counsel or at least to force him or her to drop all
other work to respond on short notice.

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Mission Power Engg Co, 883 F. Supp. at 490. Riot also mischaracterizes its

Application as seeking a very limited body of early discovery. App. at 7. The

categories of documents requested (22 categories across all four subpoenas) are broad

in both time and scope. See Mayer Decl., Ex. 3 at 56.

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C.

No Good Cause Exists for Pre-Service Discovery.

Even setting aside the fact that Riot has not made the extraordinary showing

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that it is entitled to emergency relief in this ex parte application, Riot has also failed

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to show good cause that it is entitled to expedited pre-service discovery. Prior to

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seeking early discovery, Plaintiff must demonstrate that it has made a good faith

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effort to comply with the requirements of service of process and specifically identify

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defendants. Skout, Inc. v. Jen Processing, Ltd., 2014 WL 3897166, at *2 (N.D. Cal.

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August 7, 2014). Here, Riot admits that it has not completed service on any of the

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Defendants and that it has not even completed obtaining certified translations of each

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initiating document. Mayer Decl., 12. Moreover, Riot refuses to acknowledge the

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fact that Mr. Lira is Chachanis director, and that Chachani is responsible for the

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LeagueSharp software. At a minimum, Riot should be held to make good faith

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efforts to comply with service requirements as to each Defendant before expedited

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pre-service discovery is permitted.

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Riot lists several cases in a footnote that Riot says permitted early discovery

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for the purpose of identifying anonymous or Doe defendants. App. at 8 & n.3.

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These cases are not on point. In several of the cases, the appellate court found the

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district court to have abused its discretion in dismissing plaintiffs complaint without

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first giving plaintiff a fair opportunity to learn the true identity of the defendant

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through discovery. See Gillespie v. Civiletti, 620 F.2d 637, 642 (9th Cir. 1980)
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(finding an abuse of discretion where the district court dismissed the complaint

without requiring the named defendants to reply to interrogatories seeking the

identities of superintendents in charge of the holding facilities where appellant was

incarcerated); Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir. 1997) (finding an

abuse of discretion where the district court dismissed the complaint without requiring

the City to respond to interrogatories seeking to identify the officer who allegedly

assaulted plaintiff); Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985) (finding that

the district court erred in dismissing plaintiffs excessive force claim, stating that

[d]ismissal is proper only when it appears that the true identity of the defendant

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cannot be learned through discovery or the courts intervention (internal citation

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omitted)); Maclin v. Paulson, 627 F.2d 83, 87 (7th Cir. 1980) (reversing district

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courts dismissal of plaintiffs complaint, reasoning that plaintiff should have been

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permitted to obtain [defendants] identity through limited discovery). Here,

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dismissal of Riots complaint is not at issue (the complaint was filed just 24 days

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ago). As litigation progresses, Riot will have at its disposal a number of discovery

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tools to learn the information it seeks, including third-party subpoenas. Denial of this

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Application does not somehow deprive Riot of discovery tools.

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Second, the infringement cases relied on by Riot are readily distinguishable in

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that those cases involved plaintiffs seeking limited expedited discovery in order to

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ascertain the identities of individuals associated with unknown ISP addresses or

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aliases. See e.g., Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal.

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1999) (assignee permitted to make request for limited discovery to ascertain identities

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in action alleging trademark infringement); UMG Recordings, Inc., 2008 WL

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4104214, at *5-6 (granting plaintiffs limited, early discovery to learn identifying

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information of users associated with offending ISP addresses). In those cases, the

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courts noted that [p]arties who have been injured by [tortious acts committed over

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the Internet] are likely to find themselves chasing the tortfeasor from Internet Service

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Provider (ISP) to ISP, with little or no hope of actually discovering the identity of the
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tortfeasor. Seescandy.com, 185 F.R.D. at 578; see also UMG Recordings, Inc, 2008

WL 4104214, at *5-6 (discussed above). Here, Riot knows the identity of the

Defendants it is suing and is not unable to proceed with its case.

Riots reliance on Semitool, Inc. v. Tokyo Electron Am., Inc. is also misplaced.

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208 F.R.D. 273, 275-77 (N.D. Cal. 2002). Semitool was a patent infringement case

where plaintiff sought expedited discovery of core technical documents for the

purpose of completing its initial infringement contentions pursuant to the Patent

Local Rules for the Northern District of California. Id. at 276. Here, Riot does not

need additional discovery to proceed under the Local Rules or the Federal Rules of

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Civil Procedure.

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IV.

OBJECTION TO EVIDENCE
Defendants object to the purported English translations of the German letters

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attached as Exhibit 1 to the Mayer Declaration on the grounds that these purported

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translations are not certified.

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V.

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CONCLUSION
Based on the foregoing, Defendants request that this Court deny Riots ex parte

application in its entirety.

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Dated: August 29, 2016

ARNOLD & PORTER LLP

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By: /s/ Ryan M. Nishimoto

Ryan M. Nishimoto
Attorneys for Defendants
STEFAN DELGARDO ARGOTE,
MATTHIAS OLTMANN, TYRONE
TOM PAUER, and CHACHANI
MISTI Y PICHU PICHU S.R.L.

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