Bungie Inc v. Fisher

Opinion

1 2 3 4

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 9 Plaintiff, Case No. C23-1143-MLP 10 v. ORDER 11 JOSHUA FISHER, et al., 12 Defendants. 13

15 This matter is before the Court on Plaintiff Bungie, Inc.’s Ex Parte Motion to File 16 Requests for Further Third-Party Discovery Under Seal (the “Motion” (dkt # 34)). Plaintiff 17 moves for an Order to: (1) grant leave to file its upcoming Second Motion for Expedited 18 Discovery under seal; and (2) file further requests for expedited third-party discovery for the 19 purpose of identifying and locating Defendants under seal. Having considered Plaintiff’s 20 submissions, the balance of the record, and the governing law, the Court GRANTS Plaintiff’s 21 Motion (dkt. 34), as further explained below. 22 23 2 This Court previously found good cause to authorize early discovery in this matter, 3 authorizing Plaintiff to serve third-party subpoenas on several entities to further its investigation 4 into identifying unknown Defendants allegedly responsible for developing “Ring-1” cheat

5 software for Destiny 2, Plaintiff’s online multiplayer, first-person shooter video game. (See dkt. 6 ## 27, 30, 33.) Plaintiff’s Motion states that while their efforts for early third-party discovery 7 have borne some fruit, inquiries into certain unknown Defendants have been frustrated. (Motion 8 at 2-3.) Plaintiff attests that these Defendants have used publicly available filings to change their 9 practices, disguise their alleged wrongdoing, and elude detection. (Id. at 3-4.) Accordingly, 10 Plaintiff requests that the Court allow it to file additional third-party discovery under seal to 11 preempt additional obfuscation. (Id. at 4.) 12 Under the Court’s Local Rules, “[t]here is a strong presumption of public access to the 13 court’s files.” Local Civil Rule (“LCR”) 5(g); see also Nixon v. Warner Commc’ns, Inc., 435 14 U.S. 589, 597 (1978). As the Ninth Circuit explained in Kamakana v. City & Cnty. of Honolulu,

15 “judicial records are public documents almost by definition, and the public is entitled to access 16 by default.” 447 F.3d 1172, 1180 (9th Cir. 2006). To rebut the presumption of public access, a 17 party must file a motion that includes “a specific statement of the applicable legal standard and 18 the reasons for keeping a document under seal, with evidentiary support from declarations where 19 necessary.” LCR 5(g)(3)(B). 20 When sealed materials are attached to a non-dispositive motion “unrelated to the merits 21 of the case,” such as here, the moving party “need only satisfy the less exacting ‘good cause’ 22 standard.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 2016). 23 “A party asserting good cause bears the burden, for each particular document it seeks to protect, 1 of showing that specific prejudice or harm will result if no protective order is granted.” Foltz v. 2 State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). “[B]road allegations of 3 harm, unsubstantiated by specific examples or articulated reasoning,” will not suffice. Id. 4 (quoting Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)).

5 With their request, Plaintiff submitted a declaration from counsel Dylan Schmeyer (dkt. 6 # 35) that includes evidence that unknown Defendants are following this matter’s public dockets 7 and acting to frustrate Plaintiff’s discovery efforts. Specifically, Mr. Schmeyer attests that 8 developer Defendants have begun using different accounts and practices for their cheat 9 developments to obfuscate their identities. (Id. at ¶¶ 2-8) Plaintiff also identified instances where 10 Defendants deleted a server to destroy evidence and refrained from using devices to impede 11 Plaintiff’s investigation. (Id. at ¶¶ 4, 7) Another unknown Defendant appears to have gone so far 12 as to fake their own death to elude Plaintiff’s discovery. (Id. at ¶ 5.) Given the proximity between 13 these incidents and Plaintiff’s prior discovery requests, Plaintiff has shown good cause that filing 14 third-party discovery requests will continue to frustrate Plaintiff’s efforts and cause additional

15 harm unless they are sealed. 16 Accordingly, the Court finds Plaintiff has established good cause to seal requests for 17 third-party discovery intended to identify and locate unknown Defendants. 19 The Court, having considered Plaintiff’s Motion and supporting declaration and being 20 fully apprised on the matter, hereby ORDERS as follows: 21 1. Plaintiff’s Motion (dkt. # 34) is GRANTED; 22 2. Plaintiff may file under seal its upcoming Second Motion for Expedited 23 Discovery; and 1 3. To the extent Plaintiff files further requests for expedited third-party discovery for 2 the limited purpose of identifying and locating Defendants, it may file such motions under seal in 3 accordance with this Order, provided that Plaintiff certifies in the motion that the standards of 4 LCR 5(g)(3)(B) are met.

5 Dated this 2nd day of April, 2024. 6 7 A United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23