UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA
DEFENDANT REDSTONE GAMING CORP.'S RULE 26(a)(1) INITIAL DISCLOSURES
Defendant Redstone Gaming Corp. ("Redstone" or "RGC"), by and through its undersigned counsel of record, Calderwood & Harkness LLP, and local counsel Thorngate & Associates, PC, hereby serves its Initial Disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) and the Court's Scheduling Order entered on May 8, 2024 (Dkt. 22). These Initial Disclosures are served upon counsel for Plaintiff Luminos Interactive LLC ("Luminos" or "Plaintiff") as of the date set forth below.
These disclosures are made based upon information reasonably available to Redstone as of the date of service and without waiving any objections, including but not limited to objections based on the attorney-client privilege, work-product doctrine, the common-interest privilege, or any other applicable privilege, protection, or immunity from disclosure. Nothing contained herein shall be construed as an admission of the relevance, materiality, or admissibility of any information, document, or category of documents identified herein. Furthermore, the identification of any individual or document herein does not constitute an admission that such individual's testimony or such document is relevant to, or admissible in, this proceeding.
Redstone expressly reserves the right to supplement, amend, or correct these disclosures as discovery progresses and additional information becomes available, consistent with the continuing obligations imposed by Federal Rule of Civil Procedure 26(e) and any orders of this Court. Redstone's investigation into the facts and circumstances underlying Plaintiff's claims is ongoing, and these disclosures should not be understood to represent the complete universe of information, witnesses, or documents that Redstone may rely upon in the defense of this action.
Date of Service: May 20, 2024
I. INDIVIDUALS LIKELY TO HAVE DISCOVERABLE INFORMATION — Fed. R. Civ. P. 26(a)(1)(A)(i)
Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(i), Redstone identifies the following individuals who are likely to have discoverable information that Redstone may use to support its claims or defenses, along with a description of the subjects of the information known or believed to be known to each individual. This list is not intended to be exhaustive. Redstone reserves the right to supplement this disclosure as its investigation continues, as additional witnesses are identified through discovery, and as the issues in this litigation are further refined through the parties' pleadings, motions practice, and the discovery process.
The contact information provided below is current as of the date of service. For current and former employees of Redstone Gaming Corp., contact information is provided in care of Redstone's principal office. Redstone will provide updated contact information for any individual to the extent it becomes aware that such information has changed.
1. Jordan Kessler
Title: Vice President of Creative Development, Redstone Gaming Corp.
Address: c/o Redstone Gaming Corp., 4100 Obsidian Tower Boulevard, Suite 2200, Las Vegas, NV 89109
Subjects of Information: Mr. Kessler is expected to have knowledge regarding the overall creative direction and development of Ironclad Dominion, including but not limited to: the inception and evolution of the game's creative vision; the development timeline commencing in the first quarter of 2020; Mr. Kessler's oversight of the art direction pipeline for the project from pre-production through the game's commercial release on November 14, 2022; the independent creation of character designs, environmental textures, user-interface ("UI") elements, and background matte paintings for Ironclad Dominion; the origins and development of the mechanized-steampunk aesthetic that defines the visual identity of Ironclad Dominion and how that aesthetic diverges from the dark-fantasy style employed by Luminos Interactive LLC in Shardfall Chronicles; the internal design review process utilized by the Ironclad Dominion creative team, including milestone reviews, art direction approval workflows, and creative feedback loops; Mr. Kessler's lack of knowledge of, familiarity with, or access to Shardfall Chronicles visual assets during the relevant development period; the structure, maintenance, and version-control history of the "ironclad-main" Git repository, which serves as the primary code and asset repository for Ironclad Dominion; and the personnel and organizational structure of the creative development team.
2. Seo-Yeon Park
Title: Lead Character Artist (Ironclad Dominion), Redstone Gaming Corp.
Address: c/o Redstone Gaming Corp., 4100 Obsidian Tower Boulevard, Suite 2200, Las Vegas, NV 89109
Subjects of Information: Ms. Park is expected to have knowledge regarding the design and creation of character armor designs, character models, and character-related visual assets for Ironclad Dominion, including but not limited to: the independent creative process undertaken by Ms. Park and her team in developing the challenged character designs; the artistic references, mood boards, and visual research materials used in the creative process, which drew upon publicly available steampunk, industrial-era, and mechanized aesthetic traditions rather than any assets from Shardfall Chronicles; the concept art development process from initial sketches through final production-ready assets; the iterative design workflow as documented in the "ironclad-main" Git repository, including Ms. Park's first commit to the repository dated February 12, 2020, which predates the public release of Shardfall Chronicles by more than thirteen months; the transformative nature of Redstone's character designs as compared to generic fantasy-RPG tropes common throughout the gaming industry; the identity and contributions of personnel and team members involved in character art creation under Ms. Park's supervision; and Ms. Park's lack of access to, familiarity with, or exposure to Shardfall Chronicles visual assets at any point during the development of Ironclad Dominion.
3. Marcus Hale
Title: Chief Executive Officer, Redstone Gaming Corp.
Address: c/o Redstone Gaming Corp., 4100 Obsidian Tower Boulevard, Suite 2200, Las Vegas, NV 89109
Subjects of Information: Mr. Hale is expected to have knowledge regarding the corporate overview and organizational structure of Redstone Gaming Corp.; the business strategy, commercial objectives, and market positioning of Ironclad Dominion as a AAA multiplayer tactical role-playing game ("RPG") designed for a mass-market audience on major console and PC platforms; the non-overlapping market segments between Ironclad Dominion and indie single-player titles such as Shardfall Chronicles, including differences in target demographics, pricing models, distribution channels, and gameplay modalities; Redstone's revenue and financial performance, including Ironclad Dominion's first-year gross revenue of approximately $312 million and Redstone's consolidated annual revenue of approximately $1.87 billion for fiscal year 2023; the corporate decision-making processes related to the development and release of Ironclad Dominion; and general corporate knowledge regarding the present lawsuit and Redstone's response thereto.
4. Priya Venkatesh
Title: General Counsel, Redstone Gaming Corp.
Address: c/o Redstone Gaming Corp., 4100 Obsidian Tower Boulevard, Suite 2200, Las Vegas, NV 89109
Subjects of Information: Ms. Venkatesh is expected to have knowledge regarding Redstone's legal response to Plaintiff's Complaint; the engagement of outside counsel in connection with this litigation; Redstone's intellectual property compliance policies and procedures, including policies governing the use of third-party reference materials in the creative development process; the existence and scope of insurance coverage under the Pinnacle Mutual Insurance Co. media/entertainment liability policy (Policy No. PML-IP-2023-08841); corporate document retention policies and the implementation of the litigation hold instituted in connection with this action; and the existence, nature, and substance of any non-privileged communications between Redstone Gaming Corp. and Luminos Interactive LLC prior to the filing of this litigation, if any such communications exist.
Privilege Objection: Redstone objects to the extent any testimony or deposition of Ms. Venkatesh would call for information protected by the attorney-client privilege or the work-product doctrine. The identification of Ms. Venkatesh in these Initial Disclosures is not intended to be, and shall not be construed as, a waiver of any such privilege or protection. Redstone will assert privilege objections as appropriate during the course of discovery.
5. Additional Individuals (Identified by Category, to Be Supplemented)
Redstone further identifies the following categories of individuals who are likely to have discoverable information relevant to this action. Redstone is in the process of identifying specific individuals within these categories and will supplement these disclosures with specific names, titles, and contact information as identification is completed, in accordance with Federal Rule of Civil Procedure 26(e).
(a) Members of the Ironclad Dominion creative development team, including but not limited to environment artists, UI designers, concept artists, texture artists, and technical artists employed by or contracted to Redstone Gaming Corp. during the period from the first quarter of 2020 through the game's release on November 14, 2022. These individuals are expected to have knowledge regarding the independent creation of the visual assets at issue in this litigation, the creative workflows and artistic references employed by the team, and the iterative development process documented in the "ironclad-main" Git repository.
(b) Redstone's information technology and engineering personnel with knowledge of the "ironclad-main" Git repository architecture, commit history, branching structure, and version-control protocols, including personnel responsible for maintaining the repository infrastructure and access controls. These individuals are expected to have knowledge relevant to establishing the timeline and provenance of the visual assets at issue.
6. Third-Party Individuals Known to Have Relevant Information
Redstone further identifies the following third-party individuals who are known or believed to have discoverable information relevant to the claims and defenses in this action:
(a) Tobias Crane, Founder & Managing Member, Luminos Interactive LLC, 802 Brazos Creek Lane, Suite 5, Austin, TX 78701. Mr. Crane is expected to have knowledge regarding the creation and development of Shardfall Chronicles; the copyright registration for Shardfall Chronicles (U.S. Copyright Registration No. VA 2-254-781); the scope and nature of Luminos's claimed copyrightable elements; the factual basis for Luminos's allegations of copyright infringement; Luminos's damages allegations and the methodology underlying its claimed damages figure of $28.5 million; the commercial performance and market position of Shardfall Chronicles; and any communications between Luminos and Redstone prior to the filing of this action.
(b) Elara Whitfield, Art Director & Co-Founder, Luminos Interactive LLC, 802 Brazos Creek Lane, Suite 5, Austin, TX 78701. Ms. Whitfield is expected to have knowledge regarding the art direction and visual asset creation process for Shardfall Chronicles; the artistic references and creative influences underlying the visual design of Shardfall Chronicles; the specific visual elements that Luminos alleges were infringed by Ironclad Dominion; and the degree to which the allegedly similar elements are derived from common fantasy-RPG visual conventions and publicly available artistic traditions rather than original expression.
II. DOCUMENTS, ELECTRONICALLY STORED INFORMATION, AND TANGIBLE THINGS — Fed. R. Civ. P. 26(a)(1)(A)(ii)
Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(ii), Redstone identifies the following categories of documents, electronically stored information ("ESI"), and tangible things in its possession, custody, or control that it may use to support its claims or defenses. This identification is not intended to be exhaustive, and Redstone reserves the right to supplement this disclosure as its investigation continues and as additional responsive materials are identified.
Documents and ESI will be produced in accordance with the discovery plan submitted by the parties following the Rule 26(f) conference held on May 6, 2024, including the agreed-upon protocols for the format of production, de-duplication, and handling of ESI. Unless otherwise agreed by the parties or ordered by the Court, documents will be produced in their native format or as single-page TIFF images with extracted text and associated metadata, in accordance with the parties' ESI protocol.
Category 1: Concept Art Archives
Original concept art, sketches, digital illustrations, and iterative design files for Ironclad Dominion characters, environments, UI elements, and background matte paintings, dating from the first quarter of 2020 through the game's commercial release on November 14, 2022. These materials are maintained in Redstone's internal digital asset management system and in the "ironclad-main" Git repository. These materials are relevant because they demonstrate the independent creation of the visual assets challenged by Plaintiff, document the evolution of Redstone's creative designs over the course of development, and establish that substantial creative work on Ironclad Dominion's visual identity was completed prior to the March 22, 2021 release date of Plaintiff's Shardfall Chronicles.
Category 2: Git Version-Control Logs (ironclad-main Repository)
The complete version-control history from the "ironclad-main" Git repository, including commit logs, timestamps, author attributions, branch and merge histories, and associated file changes for art and design assets. The repository contains approximately 14,208 commits spanning from the first commit on February 12, 2020 through October 2022. These records are relevant because they establish, with granular precision and through immutable, timestamped records, the independent development timeline of Ironclad Dominion's visual assets, including the chronological progression of asset creation that predates any possible access to Shardfall Chronicles.
Category 3: Internal Design Review Presentations
Slide decks, meeting notes, agendas, minutes, and memoranda from internal design review meetings of the Ironclad Dominion creative team, including milestone reviews, art direction approvals, and creative feedback documentation. These materials are relevant because they document the internal creative decision-making process that gave rise to the visual elements at issue and demonstrate that Redstone's design choices were the product of independent creative judgment rather than any copying of Plaintiff's work.
Category 4: Personnel Records
Employment records, contractor agreements, non-disclosure agreements, and organizational charts related to the Ironclad Dominion creative team, including but not limited to records for Jordan Kessler, Seo-Yeon Park, and other members of the creative development team, to the extent such records are relevant to the claims and defenses in this action and are non-privileged. Redstone reserves the right to redact personal identifying information (such as Social Security numbers, dates of birth, and home addresses) and compensation details that are not relevant to the issues in this litigation.
Category 5: Art Pipeline and Asset Management Records
Documentation of Redstone's internal art pipeline, including asset management system records, procedural generation tool configurations and logs, shader development documentation, workflow protocols, and production tracking records used in the development of Ironclad Dominion. These materials are relevant because they demonstrate the sophisticated, multi-stage production process through which Redstone's visual assets were independently created and refined.
Category 6: Marketing and Commercial Materials
Marketing materials, press releases, promotional content, public communications, trailers, and media coverage related to the release and commercial performance of Ironclad Dominion, including revenue data, sales figures, market positioning analyses, and competitive landscape assessments. These materials are relevant to Redstone's defenses regarding damages, market segmentation, and the commercial context in which the parties' respective products operate.
Category 7: Corporate Financial Records
Relevant excerpts from Redstone's publicly filed financial statements, including the fiscal year 2023 Annual Report on Form 10-K filed with the U.S. Securities and Exchange Commission, revenue breakdowns attributable to Ironclad Dominion, cost-of-development data, and other financial records relevant to the damages analysis in this action. Redstone will produce publicly available financial filings and relevant non-public financial data subject to the Stipulated Protective Order entered in this action (Dkt. 19).
Category 8: Communications Regarding Luminos or Shardfall Chronicles
Any non-privileged internal communications, including emails, instant messages, memoranda, and other written or electronic communications, referencing Luminos Interactive LLC, Shardfall Chronicles, Tobias Crane, or Elara Whitfield, to the extent such communications exist and are located through reasonable search efforts. Redstone's preliminary investigation has not revealed substantive internal communications regarding Plaintiff's work product during the relevant development period, which is itself relevant to Redstone's defense of independent creation.
Category 9: Insurance Policy Documentation
Relevant portions of Redstone's media/entertainment liability insurance policy issued by Pinnacle Mutual Insurance Co. (Policy No. PML-IP-2023-08841), including the declarations page, coverage provisions, endorsements, and exclusions relevant to coverage for intellectual property litigation defense costs and potential indemnification obligations arising from this action.
Note on Privilege: Redstone withholds from disclosure all documents and communications protected by the attorney-client privilege and/or the work-product doctrine. A privilege log identifying documents withheld on the basis of privilege will be provided contemporaneously with Redstone's document production in accordance with Federal Rule of Civil Procedure 26(b)(5) and the terms of the Stipulated Protective Order. Redstone reserves the right to supplement its privilege log as document review and production continue.
III. COMPUTATION OF DAMAGES — Fed. R. Civ. P. 26(a)(1)(A)(iii)
Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(iii), Redstone states as follows:
Redstone is the Defendant in this action and does not assert any affirmative claims for damages against Luminos Interactive LLC. Redstone has not filed any counterclaim in this action. Accordingly, Redstone does not make any computation of damages at this time, nor does it identify any documents bearing on such a computation.
Redstone denies that Luminos is entitled to recover damages of $28.5 million, or any other amount, from Redstone in connection with the claims asserted in the Complaint. Redstone specifically denies Luminos's assertion that the thirty-seven (37) challenged visual assets accounted for approximately 9.13% of Ironclad Dominion's commercial appeal or contributed to Ironclad Dominion's commercial success in any quantifiable manner. Redstone reserves all rights to challenge the factual and legal basis of Plaintiff's damages theories through appropriate motions practice, expert discovery, and at trial, including but not limited to challenges to the methodology, assumptions, and conclusions underlying Plaintiff's apportionment analysis.
Redstone will identify the documents and materials bearing on the evaluation and rebuttal of Luminos's damages claims through the course of discovery, including through the retention and disclosure of expert witnesses as contemplated by the Court's Scheduling Order.
IV. INSURANCE AGREEMENTS — Fed. R. Civ. P. 26(a)(1)(A)(iv)
Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(iv), Redstone identifies the following insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in this action or to indemnify or reimburse for payments made to satisfy the judgment:
Insurer: Pinnacle Mutual Insurance Co., 200 Commerce Drive, Hartford, CT 06103
Policy Number: PML-IP-2023-08841
Type of Policy: Media/Entertainment Liability Policy, providing coverage for intellectual property litigation defense costs and certain indemnification obligations arising from claims of copyright infringement, trademark infringement, and related intellectual property disputes in connection with the insured's media and entertainment products and operations.
intellectual Property Litigation Sub-Limit: $15,000,000.00 per occurrence
Deductible: $5,000.00 per claim
Claims Adjuster: Franklin Teague, Pinnacle Mutual Insurance Co.
Claim Number: PML-CLM-2024-3392
Description: Redstone tendered the defense of this action to Pinnacle Mutual Insurance Co. under the above-referenced policy promptly following service of the Complaint. Pinnacle Mutual has acknowledged coverage for defense costs incurred in this action, subject to the terms, conditions, and exclusions of the policy, the per-occurrence sub-limit of $15,000,000.00, and the per-claim deductible of $5,000.00. The question of whether Pinnacle Mutual's coverage obligations extend to indemnification of any judgment or settlement, as distinguished from defense costs, remains subject to the terms of the policy and has not been finally determined.
A copy of the relevant insurance policy, including the declarations page and relevant coverage provisions, will be made available for inspection and copying at the offices of Calderwood & Harkness LLP upon reasonable request and advance notice by counsel for Plaintiff, or Redstone will produce copies of the relevant policy documents as part of its document production in this action.
V. RESERVATION OF RIGHTS
These Initial Disclosures are based upon information reasonably available to Redstone as of the date of service, May 20, 2024. Redstone's investigation into the facts and circumstances underlying Plaintiff's claims is ongoing and is not yet complete. Redstone expressly reserves the right to supplement, amend, or correct these disclosures in accordance with Federal Rule of Civil Procedure 26(e) as additional information becomes available through the discovery process, through Redstone's continued internal investigation, or otherwise.
These disclosures are made without prejudice to any objections Redstone may assert regarding the relevance, materiality, admissibility, or discoverability of any information, documents, ESI, or tangible things, whether identified herein or otherwise. The identification of any individual, document, or category of information in these disclosures shall not be deemed an admission that such individual, document, or information is relevant to, or admissible in, this proceeding, or that Redstone will necessarily rely upon such individual, document, or information at trial or in any other proceeding.
Nothing contained in these Initial Disclosures constitutes a waiver of any privilege, including but not limited to the attorney-client privilege, the work-product doctrine, the common-interest privilege, or any other applicable privilege, protection, or immunity from disclosure. Redstone further reserves all objections, defenses, and affirmative defenses asserted or available to it under the Federal Rules of Civil Procedure, the Copyright Act, and applicable law, including but not limited to the defenses of independent creation, lack of substantial similarity, scènes à faire, merger, fair use, and failure to state a claim upon which relief can be granted.
Dated: May 20, 2024
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Catherine Bloom (CA Bar No. 247891) Omar Siddiqui (CA Bar No. 263014) Christy Bauer (CA Bar No. 289547) 600 South Grand Avenue, Suite 4400 Los Angeles, CA 90071 Telephone: (213) 555-8200 Facsimile: (213) 555-8201
Email: cbloom@calderwoodharkness.com
Email: osiddiqui@calderwoodharkness.com
Email: cbauer@calderwoodharkness.com
THORNGATE & ASSOCIATES, PC
By: ________
Patricia Thorngate (NV Bar No. 10432) 300 South Fourth Street, Suite 1100 Las Vegas, NV 89101 Telephone: (702) 555-3700 Facsimile: (702) 555-3701
Email: pthorngate@thorngatelaw.com
Attorneys for Defendant Redstone Gaming Corp.
CERTIFICATE OF SERVICE
I, Omar Siddiqui, hereby certify that on May 20, 2024, a true and correct copy of the foregoing Defendant Redstone Gaming Corp.'s Rule 26(a)(1) Initial Disclosures was served upon counsel for Plaintiff Luminos Interactive LLC by electronic mail and by first-class United States mail, postage prepaid, addressed as follows:
Daniel Hargrove, Esq. Megan Forsyth, Esq. Hargrove, Tanaka & Whitmore LLP 1400 Congress Avenue, Suite 900 Austin, TX 78701 Telephone: (512) 555-6100
Email: dhargrove@htwlaw.com
Email: mforsyth@htwlaw.com
________________________________________
Omar Siddiqui
LUMINOS INTERACTIVE LLC, a Texas limited liability company,
| <!-- indent:2 -->Plaintiff,<!-- /indent --> | Case No. 2:24-cv-00587-RWL |
| v. | Hon. Rebecca W. Langford |
REDSTONE GAMING CORP., a Delaware corporation,
<!-- indent:2 -->Defendant.<!-- /indent -->