Case 2:16-cv-05871-RSWL-AS Document 20 Filed 08/30/16 Page 1 of 6 Page ID #:287

1 MARC E. MAYER (SBN 190969)

mem@msk.com
2 DANIEL A. KOHLER (SBN 285501)
dxk@msk.com
3 MATTHEW S. BEASLEY (SBN 288070)
msb@msk.com
4 MITCHELL SILBERBERG & KNUPP LLP
11377 West Olympic Boulevard
5 Los Angeles, CA 90064-1683
Telephone: (310) 312-2000
6 Facsimile: (310) 312-3100
7 Attorneys for Plaintiff
RIOT GAMES, INC.
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

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12 RIOT GAMES, INC., a Delaware
corporation,
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Plaintiff,
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v.
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STEFAN DELGADO ARGOTE a/k/a
16 Ohm and Burberry; MATTHIAS
OLTMANN a/k/a Joduskame,
17 Rolle3k, and Sheppard; TYRONE
TOM PAUER a/k/a Beaving;
18 CHACHANI MISTI Y PICHU PICHU
S.R.L., a company organized under the
19 laws of Peru; and DOES 1-10,
inclusive,
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Defendants.
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8088264.1

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CASE NO. 2:16-CV-5871-RSWL-AS

The Honorable Alka Sagar
REPLY MEMORANDUM IN
SUPPORT OF EX PARTE
APPLICATION FOR LIMITED
IMMEDIATE DISCOVERY

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The Memorandum of Defendants Delgado Argote, Oltmann, Pauer, and

2 Chachani Misti Y Pichu Pichu S.R.L. (the Named Defendants) in Opposition to

3 Riots Ex Parte Application largely ignores or overlooks the issues raised in the
4 Application. The purpose of Riots Application is not to identify Chachani, but to
5 identify the unnamed, anonymous defendants that are working in concert with the
6 Named Defendants and that have kept their identities a closely-held secret.
7 Ironically, the Named Defendants Opposition now confirms that there exist other
8 individuals that are involved in maintaining and distributing the L# software, that
9 discovery is necessary to identify those individuals, and that there is no prejudice
10 to the Named Defendants if leave were granted to take the requested early
11 discovery. If the Named Defendants wish to accept service and meaningfully
12 participate in discovery, they may do so. However, Riot is not required to take the
13 Named Defendants lawyers statements at face value.
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As set forth in the Ex Parte Application, good cause plainly exists for the

15 relief requested, and nothing in the Named Defendants papers is to the contrary:
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1.

The Named Defendants Opposition Confirms The Existence Of

17 Additional Unnamed, Anonymous Defendants. The declaration of Chachanis

18 purported director (Jaime Rosalino Prado Lira) is deliberately vague and states
19 only that Chachani owns and controls all rights to the L# software. Chachani
20 thus admits by omission and implication that it is not the developer of L#, does not
21 maintain or update L#, does not provide technical support and assistance for L#,
22 does not oversee and administer the L# forums, does not own the L# Website, did
23 not register the joduska.me domain name, does not solicit the user-generated
24 scripts that allow the L# service to function, and, perhaps most critically, does not
25 distribute or sell L# or collect revenue from its sale and distribution. In other
26 words, the Named Defendants appear to confirm that Chachani is simply an IP
27 holding company and does not actively engage in the conduct at issue. Moreover,
Mitchell
Silberberg &
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8088264.1

28 the Exhibit A attached to Mr. Liras declaration reflects that the L# forums are in
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1 fact administered by an individual using the pseudonym iMeh and that L# has
2 a team of community managers that go by Zethos, Hestia, and Zezzy, none of
3 whom counsel is willing to identify by name.1
The Named Defendants assertion that Riot cannot prove at this stage that

5 Chachani is a shell corporation misses the point. Riot is not seeking at this time to
6 impose liability on corporate directors; rather, the purpose of this Application is to
7 take limited discovery so that Riot can confirm whether there are individuals or
8 entities other than Chachani that are responsible for L# and that profit from its
9 sale. Riot is not required to take Chachani at its word, especially when it has
10 refused to provide any real information and provides only inconsistent and cagey
11 statements. Mr. Lira is careful not to identify himself as a shareholder, owner, or
12 officer of Chachani, and deliberately does not identify any other person who is
13 responsible for operating the company. Meanwhile, the Named Defendants do not
14 contest, and thus admit, that the company does not have any employees in Peru
15 (other than Mr. Lira), does not have a telephone number, and does not actually
16 conduct any business from Peru. In the meantime, the Named Defendants
17 deliberately do not explain the relationship between Chachani and the Individual
18 Defendants, even though they are represented by the same counsel.
Finally, the Named Defendants papers are inconsistent concerning the

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20 entity known as Chamispi s.r.l., raising only more questions about who is who.
21 While Mr. Lira claims that Chamispi is merely a d/b/a of Chachani, a comparison
22 of Mr. Liras declaration and Exhibit B to the Nishimoto Declaration confirms that
23 Chachani and Chamispi are separate companies with different corporate
24 identification numbers (Chachanis is 11298751, and Chamispis is 20600291956.)
25 Also telling is the fact that Chamispi was formed only one year ago (in July 2015),
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Silberberg &
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8088264.1

As an aside, Exhibit A to Mr. Liras Declaration reflects that iMeh updated the
L# Forum Rules on August 6, 2016, the day after this lawsuit was filed, and weeks
28 after Riots demand letters first were sent.
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1 even though the U.K. Complaint alleges that Chachani registered the joduska.me
2 domain name in September 2014. Mayer Decl., Ex. 2, 17. Perhaps most
3 troubling, when Riots investigator attempted to contact Chamispi, its
4 representative claimed that he had no knowledge of Chachani and that Chachani
5 does not have offices at that location. Mayer Decl., 10.
Ultimately, the conclusion is inescapable that there are individuals who must

7 be named as defendants to this lawsuit and who the Named Defendants are making
8 every effort to conceal.
2.

Riot Cannot Wait Until After Service Is Completed To Identify

10 The Anonymous Defendants. The Named Defendants apply an incorrect legal

11 standard as to whether pre-service discovery should be granted. Under Ninth
12 Circuit case law, Riot need only show that good cause exists for the requested
13 relief.2 Semitool, Inc. v. Tokyo Electron. Am., Inc., 208 F.R. D. 273, 276 (N.D. Cal.
14 2002). As set forth in the Application, all of the relevant factors for a showing of
15 good cause specific unnamed defendants, significant steps to locate and identify
16 the unnamed defendants, meritorious claims, and a likelihood of identifying the
17 unnamed defendants -- are easily met. 3
The Named Defendants claim that as litigation progresses, Riot will have

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19 at its disposal a number of discovery tools is disingenuous. As the Named

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The two cases cited by the Named Defendants Mission Power Engg Co. v.
Continental Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995) and In re
Intermagnetics America, Inc., 101 B.R. 191, 192-93 (C.D. Cal. 1989) did not
involve requests for leave to take early discovery. To the extent that the Named
Defendants are claiming that this Application should have been filed as a noticed
motion, rather than as an Ex Parte application, they ignore that until this filing,
they had not appeared in this action. In any event, the Named Defendants had
sufficient time to respond (approximately one week since they were notified of the
Application) and have not claimed that they need additional time.
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The Named Defendants suggest that Riot has not been diligent about
commencing service under the Hague Convention and Inter-American Convention.
That is false. The initiating documents (including certified translations) were sent
to the German Central Authority for service on the Individual Defendants on
August 29, 2016.
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1 Defendants know, service on the Named Defendants via the Hague Convention
2 and Inter-American Convention will take many months, if not more than a year.
3 The Named Defendants do not dispute that by that time the requested data (e.g. IP
4 addresses and server logs) almost certainly will disappear. Cf. Mot. at 13. They
5 also cannot dispute that if discovery must wait until after international service is
6 completed, it could be well over a year before all parties are identified and added
7 to the complaint. Id. That Riot can amend its Complaint under Rule 15 (Opp. at
8 4) does not change the fact that it would be unfair to force it to wait for months or
9 years to do so. Of course, the Named Defendants know this, and it is precisely for
10 this reason that they have refused to accept or waive service. Meanwhile, every
11 day that L# continues to operate, Riot suffers harm, and L#s operators generate
12 revenue at Riots expense.
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The Named Defendants protestations that they will preserve evidence or act

14 in good faith is irrelevant. The Named Defendants cannot speak for the unnamed
15 defendants. Until they are named, there is nothing preventing these anonymous
16 individuals from attempting to destroy evidence or further hide their tracks,
17 including by changing Internet service providers, masking their IP addresses, or
18 closing their active accounts.
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3.

The Named Defendants Cannot Identify Any Prejudice From The

20 Requested Discovery, And There Is None. The Named Defendants apparently

21 concede that they will not suffer any cognizable prejudice if Riot were granted
22 leave to serve the requested discovery. Contrary to the Named Defendants
23 assertion (Opp. at 9), Riots proposed subpoenas are highly focused and merely
24 seek to identify key actors other than those represented by the Named
25 Defendants counsel. If these subpoenas reveal, as Mr. Nishimoto suggests (but
26 will not actually represent), that Chachani is in fact responsible for all aspects of
27 L#, there will be no prejudice to the Named Defendants, as Chachani is already
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28 named in this lawsuit. If, on the other hand, entities or individuals other than the
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1 Named Defendants are involved, those individuals will have an opportunity to

2 oppose or quash the subpoena when given notice by the subpoenaed entities.
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Ultimately, the only purported prejudice identified by the Named

4 Defendants is that it claims that it did not have sufficient notice of this Application.
5 But the Named Defendants were, in fact, provided with notice and had ample
6 opportunity to prepare and file an Opposition. If the Named Defendants wish to
7 accept service, appear in the action, and participate in discovery, then they may do
8 so. However, until then, the only avenue by which Riot can obtain the information
9 it needs is via an order for early discovery.
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For the reasons set forth in Riots Ex Parte Application, this Court should

11 permit Riot leave to serve its requested limited discovery.

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13 DATED: August 30, 2016
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MARC E. MAYER
DANIEL A. KOHLER
MATTHEW S. BEASLEY
MITCHELL SILBERBERG & KNUPP LLP

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By: /s/ Marc E. Mayer

Marc E. Mayer
Attorneys for Plaintiff
RIOT GAMES, INC.

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