Case 2:16-cv-05871-RSWL-AS Document 21 Filed 09/01/16 Page 1 of 8 Page ID #:293

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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 DELGADO 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

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

Plaintiff,
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 SUR-REPLY TO
PLAINTIFFS EX PARTE
APPLICATION FOR LEAVE TO
TAKE LIMITED IMMEDIATE
DISCOVERY

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36699908

DEFENDANTS SUR-REPLY TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE

TO TAKE LIMITED IMMEDIATE DISCOVERY

Case 2:16-cv-05871-RSWL-AS Document 21 Filed 09/01/16 Page 2 of 8 Page ID #:294

I.

INTRODUCTION

Riots Reply Memorandum in Support of Ex Parte Application for Limited

Immediate Discovery, Dkt. No. 20 (Reply), confirms Riots intent here: to turn

Rule 26 on its head and gain early access to relatively broad discovery before

Defendants have even been served with process, based largely on unsupported

assertions that Chachani is not what it purports to be. Let us be clear: Chachani

controls LeagueSharp. Riots innuendos to the contraryincluding that Chachani

somehow admitted by omission and implication a laundry list of unasked questions

(Reply at 1)are absurd. Riot filed its Ex Parte Application for Leave to Take

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Limited Immediate Discovery, Dkt. No. 17 (App.), on a Friday, leaving Chachani

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and its lawyers to drop everything over the weekend to complete an opposition with

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supporting evidence to be filed on Monday. This was insufficient time to fully

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address the issues Riot raised, let alone to anticipate and address questions that Riot

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never asked.

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Riot also misstates the law, asking this Court to ignore well-settled precedent

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that Riot must first show (a) irreparable prejudice and (b) lack of fault in creating the

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crisis that requires ex parte relief, before the Court may grant ex parte relief. Riot

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effectively asks this Court to set aside a host of federal and local rules to allow it to

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commence the discovery process without even giving Defendants a fair opportunity

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to be heard, let alone afford them service of process. It is not difficult to imagine the

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floodgates of ex parte motionsin this case alonethat such a decision would

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unleash. As this Court warned in 1995:

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Ex parte applications have reached epidemic proportions in

the Central District. Judge Rymer warned us of this in 1989
in In re Intermagnetics America, Inc., 101 B.R. 191
(C.D.Cal.1989). Since then the abusive use of ex parte
motions has worsened. This abuse is detrimental to the
administration of justice and, unless moderated, will
increasingly erode the quality of litigation and present everincreasing problems for the parties, their lawyers, and for
the court.

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Mission Power Engg Co. v. Continental Cas. Co., 883 F. Supp. 488, 489 (C.D. Cal.

1995). The only case Riot cites in support of its position is Semitool, Inc. v. Tokyo

Electron America, Inc., 208 F.R.D. 273 (N.D. Cal. 2002), the patent litigation

involving early discovery of core technical documents for the purpose of compliance

with the Northern District of Californias local patent rules. But Semitool was

decided on a fully-noticed motion after defendants had waived service and appeared

in the case. Riot fails to cite any authority that supports its ex parte request for early

discovery, let alone such a sea change in the law.

Moreover, Riots Reply makes clear that it is not looking for the identities of

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those responsible for LeagueSharp. Chachani has already provided Riot with

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Chachanis name, director, address, alternate names, and now two declarations from

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Chachanis director attesting to such facts. Rather, Riot wants relatively broad

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discovery, seeking extensive personal identifying information (including names,

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social security numbers, dates of birth, home addresses, places of employment, email

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accounts, telephone and facsimile numbers, Internet websites, and IP addresses) of

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anyone connected to LeagueSharp, as made clear by Riots Reply. And all this on an

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ex parte application that left Defendants with one weekend to oppose. Not only is

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this inherently unfair given that [t]he opposing party can rarely make its best

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presentation on such short notice, Mission Power, 883 F. Supp. at 491, but

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Defendants are likely to suffer prejudice as a result of granting such early, invasive

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discovery. Indeed, Riot has already interfered with Chachanis business relationships

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based on nothing more than its own allegations.

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II.

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ARGUMENT
A.

The Court Should Decline Riots Invitation To Ignore Well-Settled

Law.

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Riot asks this Court to apply only the good cause standard for expedited

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discovery and argues that Defendants have applied an incorrect legal standard.

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Reply at 3. This is incorrect. The correct standard on an ex parte application

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whether seeking expedited discovery or anything else for that matteris that the

applicant must show irreparable prejudice and a lack of fault or at least excusable

neglect. Mission Power, 883 F. Supp. at 492. See also Shepherd v. U.S. Bank Natl

Assn, 2009 WL 3514550, at *1 (C.D. Cal. Oct. 26, 2009) (The law on ex parte

applications is well-settled in this circuit. In order to justify ex parte relief, the

moving party must satisfy two conditions. First, the moving party must show that its

cause will be irreparably prejudiced if the underlying motion is heard according to

regular noticed motion procedures. Second, the moving party must establish that it is

without fault in creating the crisis that requires ex parte relief, or that the crisis

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occurred as a result of excusable neglect (internal citation omitted)). It is this

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heightened standard which applies and which Riot has failed to satisfy. The only

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case that Riot cites in support is Semitool, but the motion for expedited discovery in

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Semitool was made on a fully noticed motion after defendants had waived service.

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Supplemental Decl. of Ryan M. Nishimoto in Supp. of Defs. Sur-Reply to Pl.s Ex

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Parte App. (Supp. Nishimoto Decl.), 2 & Ex. A. It had nothing to do with

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abandoning the ex parte standard when a party seeks expedited discovery. Indeed,

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neither Defendants (in the limited time that Defendants have had), nor apparently

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Riot (who has had substantially more time), have been able to find any cases granting

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the extraordinary relief now sought by Riot.

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B.

Defendants Fully Address Riots Arguments.

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In their opposition papers, Defendants addressed the two fundamental elements

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that Riot must show before it may be granted ex parte relief: (a) irreparable prejudice

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and (b) lack of fault in creating the crisis that requires ex parte relief. Mission

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Power, 883 F. Supp. at 492. In so doing, Defendants answer each of the relevant

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questions raised by Riots application. Specifically, Riot was worried about

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spoliation (App. at 2, 13), and Chachani confirmed that it was aware of and

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complying with its document preservation obligations. Defs. Oppn to Pl.s Ex Parte

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App., Dkt. No. 18 (Opp.), at 6; Decl. of Jaime Rosalino Prado Lira in Supp. of
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Oppn, Dkt. No. 18-2 (Lira Decl.), 5. Riot thought Chachani may not actually

exist and was a smokescreen (App. at 5, 13), and Defendants confirmed its

existence. Opp. at 5; Lira Decl., 2. Riot wanted to know who was responsible for

LeagueSharp (App. at 1), and Defendants confirmed that Chachani owns and controls

LeagueSharp. Lira Decl., 4; Supplemental Decl. of Jaime Prado Rosalino Lira in

Supp. of Defs. Sur-Reply to Pl.s Ex Parte App. (Supp. Lira Decl.), 2. Riot

raised questions about Mr. Liras role as director (Decl. of Marc E. Mayer in Supp. of

Ex Parte App., Dkt. No. 17-1 (Mayer Decl.), Ex. 2 at 21), and Defendants

confirmed that Mr. Lira is Chachanis director and that Chachani does business as

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CHAMISPI. Opp. at 5; Lira Decl., 2, 3.

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C.

Riots New Arguments Raised In Reply Lack Merit.

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Riot argues that anything not explicitly contested or denied is therefore

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admitted. This is ridiculous. In the short time that Defendants had to prepare an

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opposition, Defendants addressed the fundamental issues presented by Riots ex parte

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application. Defendants did not attempt to second guess what other questions Riot

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might raise. And, to the extent it was not clear from Mr. Liras original declaration,

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he has submitted a supplemental declaration confirming that Chachani owns and

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controls LeagueSharp. Supp. Lira Decl., 2.

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Riot also tries to question Chachanis legitimacy in a renewed effort to cast

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Chachani in a suspicious light (apparently Defendants answered the first round of

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Riots questions because Riot drops all of these). None of these accusations hold

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water.

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Riot argues that Chachani and CHAMISPI are separate companies with

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different corporate identification numbers (Chachanis is 11298751, and

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Chamispis is 20600291956). Reply at 2. Riot has not done its

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homework. These numbers are not, as Riot suggests, different

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corporate identification numbers. Chachanis incorporation number is

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11298751, which Chachani has had since it was incorporated in March

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2015. Supp. Lira Decl., 3. CHAMISPI has a Peruvian tax number

(Registro nico de Contribuyentes or RUC) of 20600291956. Id., 4.

Riot asserts that the LeagueSharp forum rules were updated on August 6,

2016 (i.e., the day after this lawsuit was filed). The exhibit, however,

shows that the rules were updated on June 8, 2016. Lira Decl., Ex. A.

Chachanis registration of the www.joduska.me website prior to its date

of formal incorporation is unsurprising. Domain names are important to

obtain for businesses with an online presence, and the fact that Chachani

was diligent in registering the website prior to its incorporation says

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nothing about Chachanis legitimacy.

Riot claims to find it most troubling that its investigator allegedly tried

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to contact CHAMISPI, but was allegedly told by a CHAMISPI

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representative that he had no knowledge of Chachani and that

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Chachani does not have offices at that location. Reply at 3; Mayer

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Decl., 10. Presumably, Riots unidentified investigator made in-person

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contact in Peru (as opposed to a telephone call), since Riot claims not to

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have Chachanis phone number. Reply at 2. But this is unclear, since

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the only evidence Riot offers in support of this allegation is one sentence

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in its attorneys declaration: [W]hen Riots investigator contacted

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Chamispi, its representative stated that he had no knowledge of

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Chachani. Mayer Decl., 10. Riots reliance on the face value of its

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lawyers unsupported assertion is particularly surprising given that Riot

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itself asserts that it is not required to take the Named Defendants

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lawyers statements at face value. Reply at 1.

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Additionally, Riot accuses Defendants of hiding, for example, information

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relating to those maintaining the LeagueSharp software (Reply at 1), administration

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and management of the LeagueSharp website (id. at 1), and the identity of any other

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employees in Peru. Id. at 2. For example, Riot points to LeagueSharps Global

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Forum Rules, arguing that the identity of forum users iMeh, Zethos, Hestia, and

Zezzy are somehow relevant to its application. Id. at 1-2. Yet, Riot makes no

effort to show how its allegations in this case (i.e., DMCA, tortious interference with

contract, and unfair competition), would extend to such individuals. Indeed, it is not

uncommon for anyone who actively participates in web forums to be promoted to

special ranks that make it easier for them to help other users, hide violating posts,

and/or otherwise more actively participate in the forum. Riot itself awards ranks like

Emissary, Adjudicator, and Huntsman, to users of its League of Legends

forum. Supp. Nishimoto Decl., Exs. 3-6.

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D.

Defendants Will Suffer Prejudice If The Application Is Granted.

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The questions that Riot raises in its Reply reveal that its real intent is to obtain

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rather far-reaching discovery into LeagueSharp and Chachanis operations that has

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little to do with identifying other defendants. Riot likely wants information regarding

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anyone related to the LeagueSharp service in order to cause Defendants as many

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problems as it can. Indeed, Riot has already caused problems for Chachani,

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contacting Chachanis partners and successfully interfering with Chachanis business.

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Supp. Lira Decl., 5. It doesnt take much to imagine what Riot intends to do with

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all the emergency discovery it now asks the Court to grant on its ex parte

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application. Riots proposed subpoenas are broad, seeking names, social security

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numbers, dates of birth, home addresses, places of employment, email accounts,

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telephone and facsimile numbers, Internet websites, and IP addresses. Mayer Decl.,

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Ex. 3 at 56. Riots Reply makes clear that Riot wants to know anyone remotely

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connected to LeagueSharp, including anyone who has participated as an administrator

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or manager of the LeagueSharp web forums, anyone related to LeagueSharps

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development, maintenance, updating, technical support, and assistance, and anyone

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related to the LeagueSharp websites oversight, administration, and ownership.

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Reply at 1. It wants discovery regarding registration information for the

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joduska.me domain name and the user-generated scripts that allow the
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LeagueSharp service to function. Id. It wants discovery related to LeagueSharps

distribution, sales, and revenue. Id.

Riot argues that it will suffer harm by virtue of LeagueSharp continuing to

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operate in the time it takes to complete service on Defendants. (Reply at 4.) This

argument is misplaced in that Riot seems to be conflating its own allegations with

judgment on the merits. Riot has made no showing akin to what it must show, e.g., to

support a preliminary injunction. Merely implying that Riot is likely to succeed on

the merits is insufficient. Moreover, Riot fails to show how the relief it seeks will

even resolve this concern. Indeed, simply identifying more foreign defendantsto

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the extent there even are anywill not somehow short-circuit Riots service

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requirements. Riot has failed to offer any authority suggesting that the possibility of

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a lengthy service periodstanding alonesupports ex parte relief.

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III.

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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: September 1, 2016

ARNOLD & PORTER LLP

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By: /s/ Ryan M. Nishimoto

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

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