Free Order on Motion to Amend/Correct - District Court of Delaware - Delaware

Case 1:06-cv—00270-SLR Document 97 Filed 06/12/2007 Page1 of 4
IN THE LINITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RED SONJA LLC, )
Plaintiff, g
v. g Civ. No. 06-270-SLR
PARADOX ENTERTAINMENT, INC., g
Defendant. g
O R D E R
At Wilmington this 12th day of June, 2007, having considered various motions
pending in the above referenced action;
IT IS ORDERED that:
1. Plaintiffs motion to amend the complaint (D.l. 30) is denied. The dispute
between the parties is a narrow one, focused on their respective rights for commercial
use of a literary character created by Robert E. Howard ("Red Sonya") and first
commercialized by Roy Thomas as "Red Sonja." The historical facts are known and the
parties at bar do not dispute that they are the appropriate parties to present the dispute
to the court and to resolve the dispute through litigation or otherwise. The court
concludes that the proposed new defendant adds nothing to the litigation and,
therefore, declines to broaden the scope of this dispute by allowing the proposed
amendment to the pleadings.
2. Plaintiff filed a first motion to compel (D.I. 44), grounded on plaintiffs

Case 1:06-cv—00270-SLR Document 97 Filed 06/12/2007 Page 2 of 4
assertion that, because Conan the Barbarian and "Red Sonja" are in direct
competition, broad discovery requests directed toward the value of the respective
marks is appropriate. As noted above, the court sees the instant dispute as a narrow
one, stemming from defendant’s purchase, in February 2006, of the rights to all of the
literary characters created by l-loward,‘ including the right to use "Red Sonya," and the
consequential confusion in the marketplace between "Red Sonya" and "Red Sonja?
From the cou rt’s perspective, information related to Conan the Barbarian is relevant, if
at all, in the context of determining damages; i.e., once it has been determined by the
court which of the "Red Sonja"/"Red Sonya" literary characters are subject to
commercial exploitation and by whom, only then does value become relevant.
Therefore, the court will deny the motion to compel to the extent it seeks information in
document requests 2, 10, and 25.
a. However, on or before June 18, 2007, defendant shall produce all
documents, generated in relation to the February 2006 transaction and thereafter,
related to the "Red Sonja"/"Red Sonya" characters. If defendant asserts that it has
produced all such documents, counsel for defendant shall file with the court, on or
before June 18, 2007, a detailed affidavit averring as much, as well as describing the
document search defendant undertook to gather such documents?
b. Given the court’s perspective, it chooses, in the exercise of its
*Defendant already owned the Conan character through its wholly owned
subsidiary CPI LLC, the business entity plaintiff tried to add through its motion to amend
the complaint.
2The affidavit will take the place of a 30(b)(6) deposition.
2

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discretion, to bifurcate the issue of damages (both as to plaintiffs claims and as to
defendant’s counterclaims) for purposes of trial.3
3. Plaintiff’s second motion to compel (D.l. 67) is granted, to the following
extent. On or before June 22, 2007, defendant shall produce for deposition: (a) a Fed.
R. Civ. P. 30(b)(6) witness to testify about the termination of defendant’s former
president, l\/lr. Sederowsky; and (b) a continuation of the deposition of Fredrik
lvlalmberg to allow follow-up questions about late-produced documents and defendants
counterclaims. Each deposition is limited to three (3) hours.
4. Plaintiffs motion to supplement the record (D.l. 55) is denied.
5. Plaintiff’s motion in limine (D.l. 86) is granted to the following extent:
a. Points I, Ill and V. Consistent with the court's practices, if a party has
failed to cooperate in discovery, e.g., by failing to produce evidence during discovery
that was legitimately requested during discovery, that party is precluded from
affirmatively using that evidence at trial. For example, because the court has denied
plaintiff’s motion to compel responses to its document requests 2, 10 and 25, such
information cannot be used affirmatively by defendant at trial.
b. Point Il is moot, given the courts decision to blfurcate.
c. Point IV shall be discussed at the pretrial conference.
6. Defendant's motion to strike the report of Fred B. Tarter and to preclude
plaintiff from offering any evidence of damages (D.l. 87) is denied as moot, given the
court's decision to blfurcate. Defendants motion for leave to file a reply (D.l. 94) is
3The court will review the need for damages discovery after its decision on
liability.
3

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denied as m00t.
United States Dé trict Judge
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