WP Engine • Transcript of the October 9 hearing on discovery letters

Yesterday, attorneys for both WP Engine and Automattic / Matt Mullenweg attended a hearing with Chief Magistrate Judge Donna Ryu to discuss three of the seven “joint discovery letters” the parties have filed, which document their disputes regarding discovery.

I have several thoughts and takeaways to write up, which I’ll be putting into a subscribers-only update over the weekend. However, for those who were unable to attend, as I’ve done in the past, I transcribed most of the hearing.

Please note that this is not an official transcript, but an unofficial one based on what I heard.

Courtroom Deputy: Calling civil case 3-24-6917-AMO. WPEngine, Inc vs Automattic Inc. et al. Please state your appearances counsel, starting with the Plaintiff’s attorneys first. Please approach the podium.

WP Engine’s Michael Williams: Good morning, Your Honour, Michael Williams on behalf of Plaintiff, WP Engine.

Magistrate Judge Donna Ryu: Anybody who's going to offer argument today will need to offer it from the podium. We don’t have a court reporter, we’re just making a recording. So I want to make sure we have a very clear one by having people up here at the podia and also by stating your name each time you speak. As awkward as that sounds, it helps us.

WP Engine’s Margret Caruso: Yes, Your Honour, Margret Caruso for Plaintiff WP Engine.

WP Engine’s Sara Jenkins: Sara Jenkins for Plaintiff WP Engine.

Judge Ryu: And for the Defence?

Automattic’s Michael Dore: Good afternoon, Your Honour. Michael Dore on behalf of the Defendants.

Automattic’s Ilissa Samplin: Good afternoon, Your Honour. Ilissa Samplin on behalf of the Defendants.

Judge Ryu: Please tell me who will be arguing what. So we have three JDLs on today. Mr. Williams, what’s going to happen on the Plaintiff’s side?

WP Engine’s Williams: So on the Plaintiff’s side, Your Honour, I am going to be arguing WP Engine’s motion with regard to certain requests as well as opposing Automattic’s motion with regard to requests 6, 13, and 14.

Judge Ryu: Okay, so I think you are going to be up for the first JDL, which is Docket 150 and the second one, which is Docket 154, correct?

WP Engine’s Williams: Correct. Yes.

Judge Ryu: All right.

WP Engine’s Williams: And then my partner, Margret Caruso, is going to argue, I believe it’s Docket 157.

Judge Ryu: Okay, great, thank you. How about on the Defence side?

Automattic’s Dore: Your Honour, Michael Dore for the defendants, I will be arguing docket 150.

Judge Ryu: Okay, how about the other two? Ms. Samplin?

Automattic’s Samplin: Yes.

Judge Ryu: Okay, great. So, counsel, a word on expectations regarding discovery conduct. So, the Northern District of California professional guidelines say—in our standing order for all judges, when you file your case management conference statements, they require every attorney to attest that you’ve read our professional conduct guidelines. Section 10 on motion practice says the following, “Before filing a motion, a lawyer should engage in a good faith effort to resolve the issue, in particular, civil discovery motions should be filed sparingly.” Court resources are scarce. We are all working really hard to adjudicate your matters. We work nights and weekends, and we’re also in a shutdown. That professional guidance, as well as the amendments in 2015 to the civil rules—federal rules of civil procedure—all make clear that it’s incumbent on counsel to really dig in, especially on discovery, and do the level of meet-and-confer, and make reasonable compromises, to move the case forward. It only comes to court for adjudication where it’s really necessary, which as we say as a court, is sparingly.

Judge Ryu: So, against that backdrop, so far there have been seven joint discovery letters filed in this case, which is not exactly sparingly. In light of this record, and especially because we’re in a shutdown, I want you to know that your trial judge made the suggestion to me that I not allow you to file any more discovery letters without first getting leave of court. So, even though she’s not presiding over discovery matters in your case, at least in the first instance, clearly she is paying attention to what’s going on in the docket and what the party’s conduct has been in discovery. That’s point one.

Judge Ryu: Point two is, going forward, I am going to limit your ability to file discovery disputes. So you first have to obtain my permission. To do that, you’re going to file a very short joint motion, seeking leave to file a proposed joint discovery letter that will be attached as an exhibit to that motion. I’ll review the joint discovery letter and I’ll decide whether to grant you leave to file it. Sometimes—and in the ones that you filed in front of me today—joint discovery letter might cover a number of disputes. I want you to know ahead of time. If any single dispute in a joint discovery letter that you put in front of me for leave to file is half-baked, meaning it’s not really fully met—the meet-and-confer is not done—I’m going to deny the whole letter, and you’ll have to go back. I’m not going to decide which ones to hear and which ones to not. I want a fully-baked joint discovery letter before I’ll accept it for filing going forward.

Judge Ryu: So, I am not discussing the four new joint discovery letters. I have not reviewed them. And there’s lots of cases and plenty of people who are unfortunately needing help and are in line way ahead of you all. So please, please, you need to—I know it’s not necessarily perhaps your favourite thing to sit down and really have to dig in and work through the discovery issues, but that is what is required. I’m not just requiring it today, it’s in the rules. It’s the expectation.

Judge Ryu: So, in light of all this, today, even though I don’t usually do this, I’m putting you on the clock. You get 10 minutes a side, period, for all three of these, because a lot of this is going to be me explaining stuff to you, but I’ll give you a chance, briefly, to offer argument or clarification. We have a clock. So, if and when you talk, we’ll be running the clock. When you stop talking, we’ll stop the clock if the other side’s talking. And if you run up out of your 10 minutes, then you are done unless I give you further permission. Okay?

Judge Ryu: I’m sorry to start like this, but I really wanted to make it clear, and it was enough to jump out to Judge Martínez-Olguín to say, “What is going on?“ This is not normal and I’m really hoping everybody can change course.

Judge Ryu: Let’s go ahead and turn to these three joint discovery letters. The first one is docket 150, Defence request for production 6, 13, and 14. I’m going to give you what will be my holdings, unless you want to offer some argument, which I will give you a chance to do, but use your time wisely.

Judge Ryu: With respect to request for production 6, this calls for customer complaints. I think these are relevant to two things, at least—the tortuous interference claim, so the Defence can counter the Plaintiff’s assertion that they lost business because of Defence actions as opposed to the Plaintiff’s actions. The customer complaints are also relevant to the libel claims because there may be complaints about certain aspects of WPE’s products or services that are probative of whether Defendants disparaging statements about WPE were actually true and therefore not libellous.

Judge Ryu: But, a couple things. First of all, not all complaints are going to be relevant—they have to be tied to the claims. So you’ve got to meet-and-confer about what kinds of complaints would be relevant. I think the Defence gave a running start at that, but then—for example, you have to meet-and-confer and come up with a list of the kinds of complaints that are relevant. We also have to look at the timeframe. You both proposed different time frames and I reject both of them. I’m going to impose a time frame on this one from January 1, 2020 to the present. So that goes a little more than four years back from Mullenweg’s statements in September of 2024. It’s a good chunk of time to get a picture on what was happening with WPE’s business, before those statements were made. So I find that to be relevant and proportional to the claims.

Judge Ryu: I think what I’m gonna do—I think what makes sense is for me to give you my rulings on all three of these RFPs and then offer you, you wanna try to talk me out of it, you can, okay? So here’s the next one: RFP 13. Instead of complaints, these are talking about actual losses of business, sales, and customers. So, for the same reasons, business and customer losses are relevant to the tortuous interference claims as well as the libel claim. But these are over-broad in both time and scope.

Judge Ryu: Here’s my ruling: Plaintiffs will have to provide, first of all, some aggregate documents. Documents sufficient to show the aggregate number of lost customers and lost dollars for each year from January 1, 2020 to the present. So we’ll have annual numbers, for dollars and customers, starting in 2020 and then 2021, et cetera. In addition, Plaintiffs will have to produce documents sufficient to identify the customers who left WPE from January 1, 2022 to the present, including their dates of departure and any reasons given for their departure. So to give the big picture, we’ve got some aggregate numbers, by year, and then starting in January 2022—more than two and a half years before the statement—Plaintiffs will have to identify the customers who left and also give information about when they left and why they left. And this one, I’m not going to require that it be narrowed. Unlike RFP 6, it doesn’t have to be tailored for certain reasons, just give them the information. If you don’t have a protective order in place yet, you can do that because some of this is obviously sensitive customer information.

Judge Ryu: Then for RFP 14, this is looking for documents concerning Defendants, the website, etc. So I have a quick question first, for Mr. Williams. The Plaintiff’s side of the paper discusses a run that Plaintiffs did, but it was aggregate. It was—I think it meant to cover everything that the Defence was saying they’d compromised. My question is, did the Plaintiffs separately run a search for responsive documents from January 1, 2023 to the present on Mullenweg. So “Mullenweg” and “MM”. And if so, how many documents did it turn up? Mr. Williams?

WP Engine’s Williams: Can I have one moment just to confer?

Judge Ryu: Sure.

WP Engine’s Williams: Your Honour, I understand we did do that and it was roughly 225,000 hits or somewhere in that ballpark for the Mullenweg.

Judge Ryu: Just in that time period? For him alone?

WP Engine’s Williams: Yes.

Judge Ryu: Okay. Thank you. So, I am going to deny this request without prejudice because Defence really didn’t give me any compromise and didn’t offer, you didn't try to explain—well, let me say this: it’s the Defence requirement for discovery to first explain its relevance. And there was no attempt to do that. These are very broad. It’s just anything that has to do with any of these topics. So it’s denied without prejudice to you working with the Plaintiffs to see if you can come up with something that is more tailored or, if it’s a dispute, you’re sure going to have to explain to me what the relevance is more precisely because this just seems to scoop in anything about everything. It is the job of the party seeking discovery to establish relevance in the first instance. Those are my rulings on the first letter. I will take your argument, but remember the clock will run. This is the Defence motion. So, Mr. Dore, I’ll start with the Defence side.

Automattic’s Dore: Thank you, Your Honour. Michael Dore for the defendants. One thing I wanted to clarify with Court, if I may, with respect to the sixth request, we were also seeking communications regarding those customer complaints. And I didn’t hear Your Honour address that. I didn’t know if that was by design, but we are seeking internal communications at WP Engine related to those complaints because as a general matter, the production of internal emails, for example, has been minimal by WP Engine. We’ve counted approximately 370 individual internal WP Engine-to-WP Engine emails produced in this entire case since its inception, in contrast to the almost 10,000 internal Defendants’ emails that have been produced. So that is a question I would ask Your Honour to address.

Judge Ryu: Yes, it would include documents and communications about those complaints. So if there’s a complaint that’s made, that falls within that, that’ll be produced. And if there’s internal communications about that complaint, then that should be turned over.

Automattic’s Dore: Thank you, Your Honour. With respect to RFP 14, I submit Your Honour that obviously we would love to address it in more detail in the space provided, but Mr. Mullenweg figures in very prominently in the complaint, as we noted, being mentioned 200 times with allegations spanning almost 20 years. And we have not identified, Plaintiffs have not identified to us, an aspect of what Mr. Mullenweg would have been addressing or with respect to internal communications at WP Engine. No number has been provided as to that. So there could be hits on TechCrunch articles that come in the door. But how many hits are there internally at WP Engine talking about Mr. Mullenweg? We don’t know that. And the complaint addresses 20 years of conduct with respect to taxes, with respect to the community, with respect to a boatload of issues.

Judge Ryu: Well, what it talks about is a history in which Mr. Mullenweg is really supportive of WPE and then everything turns. So, it’s not exactly a history of complaints against him for the entire—there is another RFP will get to, or discovery request on the Plaintiff side that talks about that. But with respect to allegations against Mr. Mullenweg for things that he did that were tortuous or otherwise cause liability, I’m not understanding the Defence position on that.

Automattic’s Dore: Your Honour, the allegations, the complaint—I believe it’s paragraph 62, 70 and 72—talk about a scheme perpetrated by Mr. Mullenweg dating back 20 years. So this is not limited to simply plaudits that he gave to WP Engine over that time. It is an allegation of a scheme lasting decades.

Judge Ryu: So it’s denied with that prejudice to you—you can point to things more specifically, you can get in there. This is exactly why part of what I’m trying to illustrate is the meet-and-confer—you’re getting a sense today of how I rule on things. And what I take into account, so that will be in your head maybe when you meet-and-confer. And, I do look at what is relevant to the claims and defences—that’s rule 26—and then what is proportional. So we have to first look at what’s relevant. If it’s true that the complaint points to a scheme that lasts twenty years, that is really unbounded in its subject matter, then maybe Defence ultimately wins on that. They didn’t really make that argument here. And, please know that you don’t necessarily get oral argument. So if I ruled on the papers, I’d say there’s not enough there. But, Mr. Williams, when you go back and meet-and-confer with your counterparts on this, if they’re pointing to things in the complaint that are not clear and that sound very broad, that’s the consequence of broad pleading, is then, okay, you’ve opened the door to discovery. Okay? But that is the ruling for today. Denied without prejudice because the argument was not there in the papers to make me understand that that’s what was going on. Okay, anything further on this?

Automattic’s Dore: Your Honour, how much time is left on the Defence side?

Judge Ryu: About five minutes and 45 seconds.

Court Deputy: 41 now.

Judge Ryu: Yeah, some of that was me talking.

Automattic’s Dore: I understand. Michael Dore for Defendants. Thank you. I would like to cede the rest of my time, but if there’s any left over, if I may make a final point, I would appreciate it.

Judge Ryu: Okay. Mr. Williams.

WP Engine’s Williams: Yes, Your Honour, just briefly. On customer compliance, I understand with regard to tortuous interference, And the idea there is alternate causation. If we say that customer left—of course, they bragged about how many customers we were losing as a result of it. But it’s only relevant to customers who left after September 20th, 2024.

Judge Ryu: That’s not tr—well, you didn’t address in your papers the libel argument other than to say, that’s opinion, but that’s not the point.

WP Engine’s Williams: But I guess just on the interference part, Your Honour, because if a customer complained, the question is, if we’re seeking damages from that date going forward for lost customers. So the question is: if a customer left after that date, understandably, they need to know why. Was it because of their conduct or something the Defendants did or was it something independent? Every customer complaint—and I know Your Honour said we have to talk about subject matter—but even if a customer before that time is saying, I don’t like the price increase or I don’t like this part of it, if they didn’t terminate the relationship, those complaints are not relevant, at least to the interference claim.

WP Engine’s Williams: On the libel claim, the issue is whether or not these are statements of fact, and if so, are they false? And so, on the question of whether they’re statements of fact, that’s objective. It doesn’t make a difference if some random customer had a different view or different opinion, that doesn’t change whether or not Mr. Mullenweg’s statements were true or false at the time he made them.

Judge Ryu: It’s probative. So, if Mr. Mullenweg said, this is just all, you know, WPE is just a hack job, cheap knockoff, right? So let’s say we look at complaints leading up from 2020 forward before he made those remarks that you all will identify as perhaps relevant to those questions. If you’ve got customers who are saying, “Wow, this is just, this is,”—doesn’t have to be exact wording, but that’s probative of actually showing people are thinking—”this is a cheap knockoff, this is not very good, this is whatever it might be.” Plus, the fact that they left, I think that’s also potentially relevant. It’s within the scope of discovery. Whether it’s ultimately admissible is another thing.

WP Engine’s Williams: Understood, Your Honour. The last point on the libel is just, if it is a matter of opinion, if Defendants can show it was a matter of opinion and not fact, then it still doesn’t matter. It’s not actionable. So it doesn't matter what the customers believed. So we just believe that the time frame—

Judge Ryu: It goes to the question of whether it’s truthful. It’s probative of whether—if there’s tons of complaints that back up what Mr. Mullenweg said, then perhaps he can present that as, “see, I was just saying what everybody knew.” Okay.

WP Engine’s Williams: Understood, Your Honour.

Judge Ryu: And the time frame is appropriate because I don’t think it needs to go back to the Silver Lake acquisition. I think a four-plus year run-up to the comments is plenty of time to figure out what was going on with WPE’s business and whether they were losing money and customers and if so, why?

WP Engine’s Williams: And Your Honour, I just have a point of clarification on number 13 with Your Honour’s order. You said, aggregate information regarding customers lost and lost dollars or sales.

Judge Ryu: Yes. Per year.

WP Engine’s Williams: For January 1, 2020 through the present. And then, in addition, documents sufficient to identify customers who left from that timeframe and the reasons they left.

Judge Ryu: For January 1, 2022, so a smaller time frame. Who are the actual customers? If they say why they left, then put that in, and when did they leave?

WP Engine’s Williams: But not all documents. It’s just documents sufficient…

Judge Ryu: Sufficient to show. Correct.

WP Engine’s Williams: Okay, thank you, Your Honour. That’s all on that issue then.

Judge Ryu: Great. So those are my rulings. Let’s turn to the next one, document 154. So that’s going to be Mr. Williams and Ms. Samplin, believe. These are Plaintiff’s requests for production. So, first on the waiver argument, I don’t find that there was waiver. When I sent out the discovery referral, I gave new counsel a chance to pick up where the last one was left off and to keep going and that's so we’ve gotten past that. So I reject the waiver argument.

Judge Ryu: The first set of RFPs have to do with WPE’s claim that defendants were tracking and interfering with their customer relationships. That’s RFPs 12 through 15, 19, 98, and 100. For those, I don’t think anybody is arguing that they seek relevant subject matter information. The dispute is about the start and the end time. With respect to…

WP Engine’s Williams: Your Honour, if I may, we have reached agreement on the start date for some of them that I would like to provide to the Court if that’s okay.

Judge Ryu: Okay. Yeah. That was my first question to you is, some you’ve got different start dates and some you don’t give any dates at all.

WP Engine’s Williams: We did reach out. We have offered to agree to a start date of 1/1/23 for requests. I think it was, 12, 13, and 14, if I’m correct. I think for all of those we’re agreeing that it would be start 1/1/23. And then the question—except for number 14, which actually the request is only limited to January 1, 24.

Automattic’s Samplin: Sorry, I think it’s 13, 15, and 98 that we agreed to, right?

WP Engine’s Williams: Correct. Thank you for that. So 13, 15, and 98, we agreed that the start date would be 1/1/23. And so for those, it’s really only the end date.

Judge Ryu: Well, but for some—Okay, 12 is already for January 1, 2023.

WP Engine’s Williams: Correct.

Judge Ryu: You’ve agreed to that for 13. You’ve agreed to that for 15. 14 is one year later, right?

WP Engine’s Williams: Yep.

Judge Ryu: You’ve agreed to it for 19, which says January 2023 to the present.

WP Engine’s Williams: Correct.

Judge Ryu: Correct. All right. And for 98. What about 100?

WP Engine’s Williams: 100 is more—the request itself is more temporal because it’s just talking about the data supporting that post so it doesn’t really get into the timeframe issue.

Judge Ryu: Okay. Okay. Understood.

Automattic’s Samplin: Well, I think we, I mean, we didn’t understand that. We understood them as still wanting to go potentially unbounded.

Judge Ryu: Yes. But it’s the data, whatever data your clients were talking about when they said, “the data shows, our data shows…” So it’s that data. I don’t know the date and they don't know the date. So it’s bounded by, well, what was that data?

Judge Ryu: Okay, so with respect to RFPs 12, 13, 15, 19, and 98, those will all go from 1/1/2023 till the end date. For RFP 14, that will go from 1/1/2024 to the end date. And RFP 100 is whatever the data is that the Defendants were relying on or that were referencing in making this post. And I will say right now that one of the motions by the Plaintiff was to have Defence take out the document sufficient to show. And I agree with that. It’s whatever Defendants were using, we’re referring to with respect to “our data” should be turned over.

Automattic’s Samplin: I agree with the data. I think the question was that the request goes to all documents relating to the data potentially, and that’s why we had said sufficient to show, but we agree the data should be produced.

Judge Ryu: Well, what’s the difference? I mean, the data—

Automattic’s Samplin: If people are having a lot of email communications about the data, that’s what we were trying to get at.

Judge Ryu: No, I think that it calls for documents and communications and that should be turned over. I think that’s appropriate.

Judge Ryu: Okay, so we now have the start dates figured out. Then we go to the end date and the Defence proposed a closing date of the day after Judge Martínez-Olguín entered the preliminary injunction. And, no, I think this should be through the present because first of all, it’s responsive, it’s relevant, and Plaintiff doesn’t have to take the Defence at their word that they are not violating the preliminary injunction. If they’re not, then it shouldn’t be very burdensome to respond. I take the point that it’s inconvenient—there’s an extra layer to have to do this iterative search because the present means the present—but there is a cutoff. There’s a discovery cutoff. There’s a period of—so you’ll do that. It’ll be through that time plus, you know, supplementation. So if you were to provide the documents before the discovery cutoff, then you’ve got to supplement one more time for the discovery cutoff. That’s normal and certainly doable given who these Defendants are. It’s not a small business. So there’s not the kind of burden where I’d be really concerned about that aspect. So that’s my ruling on that first set of RFPs on tracking and interfering with the customer relationships.

Judge Ryu: I’ll just go through the rest of the letter and then I’ll give you a chance to respond. The next group has to do with market manipulation. That’s RFPs 71 and 103 through 105. So these RFPs were aimed at the antitrust claims that were pleaded at the time this discovery dispute came up. They were subsequently dismissed with leave to amend. I know that Plaintiff recently re-pleaded these with new allegations. So that they may affect the party’s positions on these RFPs. So I’m denying it without prejudice. Meet-and-confer in light of the new allegations, and see if you can come to an agreement on the discovery for this small group of RFPs.

Judge Ryu: The next group is relevant to the knowledge of falsity of the public statements made by the Defendants. So it’s RFPs 50, 88, and 90 through 91. The parties stated it’s mostly a dispute about temporal scope, but I think that it’s also pretty broad, but this is my understanding and this is what my ruling is. The Plaintiffs say that all of these documents should be producible back to the founding of of WPE in 2010 because this history about what defendants have said about WPE since its founding is relevant to prove that the Defendants subsequently slandered WPE, presumably because Plaintiff’s cases is “they said all these great things about us, really supportive things about us, and suddenly—so they know that what the truth is—and they slandered us by saying the opposite in September, 2024.” That is what I think the Plaintiff’s position is. Defence doesn’t really dispute general relevance. Instead, just makes a compromise of, well, we’ll do this from 2018 when Silver Lake acquired Plaintiff, just trying to sort of split the difference on the timing.

Judge Ryu: So that’s for some of it, although there’s also—I was a little confused. It looks like the Defence suggested that the Plaintiff limited RFP 90 to 2023, and also that the Defence offered a 2023 start for RFP 50, but the Plaintiff stopped talking. These are the kinds of things that, you know, made it feel a little half-baked. Well, actually very half-baked. So, the Defence doesn’t really argue relevance just burden, but the burden argument is pretty vague. But, on the other hand, the Plaintiff’s requests are very broad. So this is one where you’ve really gotta do some engaging. I don’t know that every statement they ever made about these things back to 2010 really is what we’re looking for here. That sounds very burdensome even for a bigger defendant. There must be some way to try to narrow that. But, it may be that there’s different dates that attach, but I don’t know enough because I don’t know the relevance arguments and they weren’t really made, or the burden arguments. So I’m going to deny this without prejudice to you all going back to the drawing board on this and digging in a little deeper based on the comments that I’m making here. And, hopefully, I’m giving you some of the kinds of questions that I ask myself in thinking through what’s relevant and proportional with respect to this.

Judge Ryu: Okay, the last group on this letter has to do with Defendants attempts to get Plaintiff to pay a trademark licensing fee. These are RFPs 17, 23, and 114 through 115. I think these have to do with the CFAA section 1030(a)(7) claim. This also was subsequently dismissed with leave to amend. It’s been re-pleaded with new allegations that may affect the party’s positions on these RFPs. So, just like the antitrust claims, this is denied without prejudice to you going back to meet-and-confer in light of the new allegations to see if you can reach a compromise on those. Those are my rulings on docket 154. I’m ready to take your argument. This is Plaintiff’s motion. So Mr. Williams, you’re up first.

WP Engine’s Williams: Thank you, Your Honour, just very briefly. So, with respect to the antitrust market manipulation, Your Honour, just with respect to—I understand the Court’s ruling that we had amended the antitrust claims. The scope of the claims has not changed. It’s just fleshing out some of the allegations that Judge Martínez-Olguín found were not properly pled. So, we don’t know that, we don’t think it changes the true scope of it. I will—

Judge Ryu: What I hope changes is that you’re hearing from me the level of engagement that I’m expecting from the parties, which really wasn't done. And just so you know, I mean, I sometimes hear from people—and I heard Mr. Dore make a little slight reference to, “well, in the pages that we were given…” Look folks, the entire district uses joint discovery letters. I get very complex cases where people are really drilling down and able to give me, you know, these are very focused briefings without the invective. So, you know, if we take out the invective in your letters, we’ve reduced them a little bit already. Just get down, do whatever you can to figure it out, then get down to what’s really at issue. Give me the meat to make a decision. But that wasn't done for a lot of these. That’s okay. We’re moving past that but I really am expecting that as we go forward. Okay?

WP Engine’s Williams: Understood. And Your Honour with regard to the knowledge of falsity and the public statements, we did propose to go back to January 1, 2015 and address Your Honour’s—and this was a conversation we provided Defendants with some proposals yesterday and they got back to us. That was one they did not agree with. But in order to help narrow the scope and the burden that Your Honour mentioned, we would agree that on number 50, 88, and 90 instead of going back to 2010, we would agree to January 1, 2015.

Judge Ryu: Well, that’s great for them to know but you’re not done meeting and conferring. I don’t know as I said… You all know this, but I’ll just say it has an expectation and it’s in our ESI checklist and the like. The search process is iterative. So you’re narrowing it to 2015, that’s great. That wipes out five years, that’s very helpful. If we’re looking at hits within that time, and if you’re coming up with search terms that the Defence runs, Defence needs to show the runs and some sampling. If you’re gonna say to them—Defence saying to the Plaintiffs—”this is pulling up so much irrelevant stuff,” I would expect that you’re actually showing them the materials so that you can work together iteratively to narrow it to the good stuff. Nobody wants to have the really not very responsive material. That’s my expectation. 2015 is a good start, but you’ve got to dig in a little deeper because they might really have a burden argument here. If it’s turning up lots of lots and lots and lots of stuff and a good portion of it is not very responsive. So I appreciate what you’re saying. That doesn't end the conversation.

WP Engine’s Williams: Okay. And finally, Your Honour on the last category, the extort—their titled extortion planning documents—they are also relevant to the declaratory judgment claim for non-infringement. And also the unfair competition, the UCL claim, which was not dismissed because the extortion is still a predicate act. So, we believe these categories are still relevant even not notwithstanding the amended complaint and that the information is still something that we would be entitled to.

Judge Ryu: Did you make that argument in your papers?

WP Engine’s Williams: We did not, because at the time the papers were filed, the amendment had not occurred. We had not had the—

Judge Ryu: Okay. Well, then you need to go back. I mean, I didn’t have it, so it wasn’t in front of me. I couldn’t consider it. I’m not going to consider it on the spot without the Defence having had an opportunity to explain their side to me. But you can certainly raise it with them because this was one you're going to have to go back to the drawing board on.

WP Engine’s Williams: Okay. Thank you, Your Honour.

Judge Ryu: Okay? Great. Let’s turn to the Defence.

Automattic’s Samplin: Thank you, Your Honour. I’ll be brief because I heard your instructions to go back and meet-and-confer most of these, which we will. I just wanted to address one item, which is the end date for some of these requests. Basically, I heard and respect Your Honour’s order. I would just say in looking at the complaint, there are not allegations here of ongoing conduct. The conduct that’s alleged—allegedly deceiving the market into thinking wordpress.org was open to all, extorting allegedly trademark licenses, interfering with access to wordpress.org and the ACF plugin—those are all alleged to have occurred in 2024 and then ended with the PI order. And so I understand if they came with some motion of contempt of the PI order, we might be in a different posture, but we’re looking at a complaint that’s not alleging ongoing harm.

Automattic’s Samplin: We’re not in a situation—I have had many cases where we continue the document production if it’s an alleged ongoing IP infringement. But in cases where it’s not ongoing conduct, we often have some kind of end date so that the parties are not re-collecting—if they’re agreeing to hundreds of custodians—re-collecting their emails iteratively throughout the whole discovery length of the case. So part of this is a little bit of a burden argument because there are a lot of people involved in this case—a lot of custodians—we have collected, we’ve imaged devices. It would require going back and doing all that work all over again, potentially multiple times throughout the fact discovery period of the case. So I hear you, if we’re not cutting this off right at the date of the PI order. You know, obviously we put in our papers and believe it should be cut off then, but you know, we can work on that, but we do feel there should be some date that’s not the close of fact discovery.

Judge Ryu: Well, first, I mean, which one’s exactly do you think should not be tied? So, things like talking to customers, that’s one that there may be ongoing discovery. They may not know versus something like the plugin issue, right? Because that’s either fixed on the website or it’s not. So if you want to tell me which one’s exactly you think should be stopped as of the day that that conduct stopped and is verifiable because it’s not on the website, then I can try to rule on that.

Automattic’s Samplin: Some of them do relate to, many relate to requests, you ask us to go back and meet-and-confer on. So I don’t know if you want me to raise those to you. But, in particular, it would be RFPs 103 to 105. Those relate to allegations related to access of the WordPress Plugin Directory and wordpress.org, alleged conduct that I think is done and is not alleged to be continuing. But Your Honour did ask us to go back and meet-and-confer…

Judge Ryu: Yeah, on those, those were about the market manipulation ones. So I haven’t ruled on—maybe my groupings are not perfect, but on that one, for 103 to 105, I said go meet-and-confer and see if you can work it out.

Automattic’s Samplin: Okay, so you just want me to raise to you once you’ve ruled on. So, we would submit that the RFP’s related to customers also should end because they’re not alleging misconduct related to relationships with customers or continuing harm. I mean, I guess that’s our point in this case. This is allegations related to a period of time.

Judge Ryu: I didn’t understand that to be the case.

WP Engine’s Williams: That's not correct, Your Honour.

Judge Ryu: I mean, that that was ongoing. Well, that that was happening. Maybe it got stopped somewhat by the PI, but then there’s a question of whether it really has been stopped by the PI. So, something like that, I would absolutely let that continue. If there’s something specific that’s verifiable that everybody can see it stopped because—and I don’t want to make up an argument—then maybe you’ve got a point, but I need to hear the specifics.

Automattic’s Samplin: I guess my point would say, even with respect to discovery related to customers, are all the parties going to be re-collecting documents from the custodians through the end of the fact discovery period? I guess that’s kind of the concern I had.

Judge Ryu: Possibly!

Automattic’s Samplin: It may not be 2024, but if we're going through 2025, I think we’re all going to have to re-issue, re-image devices, re-collect multiple mailboxes, potentially, you know, hundreds of terabytes of data.

Judge Ryu: That happens. And it’s going to happen on both sides, right? Because the Plaintiffs also going to be producing customer materials that the Defence asked for that we talked about about in the first letter. If you want to come to some kind of agreement, then of course you can do that. You can agree to something short of what my order is, but if you don’t, then my order is, it keeps going for both sides on customer complaints.

Automattic’s Samplin: Okay.

Judge Ryu: Okay, anything more on this letter?

Automattic’s Samplin: I think everything else we are meeting and conferring about. So I think that’s all I wanted to raise. Thank you.

Judge Ryu: Okay. Let’s go to the third letter, document 157. So I’m calling this the Sleekcraft letter. So, Ms. Caruso is up at the podium now for the Plaintiffs. And I do have some basic questions for the Plaintiff about this. I’m looking to pin down the Plaintiff on this. So in the Plaintiff’s letter, with respect to the dec relief claim of non-infringement, the Plaintiff says, “We’re only arguing nominative fair use and latches.” Period. Now, the claim itself is pleaded more broadly and more vaguely than that. So if the Plaintiff is going to leave the door open to the possibility of arguing actual non-infringement, then I think that will absolutely affect the ruling on discovery. If the Plaintiff is ready to say right here and now that their dec relief claim of non-infringement is only about nominative fair use and laches, then that will affect the ruling as well. Ms. Caruso, which one is it?

WP Engine’s Caruso: Your Honour, we are not seeking as part of the dec relief claim anything having to do with non-confusion. It is just…

Judge Ryu: That is not answering my question.

WP Engine’s Caruso: It is about what nominative use and laches…

Judge Ryu: And that’s it?

WP Engine’s Caruso: I believe we also have acquiescence as part of that pleading as well, but there hasn’t been any…

Judge Ryu: Okay, so, well, just for the record and the representation to the court is your dec relief claim as currently pleaded for non infringement, is limited to nominative fair use, laches, and acquiescence.

WP Engine’s Caruso: And the Defendants’ standing to bring a trademark infringement claim.

Judge Ryu: Okay, okay, fair enough. And you are specifically telling me nothing more—the non-infringement dec relief claim doesn’t cover anything else.

WP Engine’s Caruso: Correct.

Judge Ryu: Okay. That closes the door on Sleekcraft, for now. Now I get it, it may be that the Defence decides to file a counterclaim down the road. There was some hint of that. If that happens, then we’ve got a new claim in the case, but it hasn't happened and I’m not going to consider anything that's not currently pleaded as a claim or defence. so Sleekcraft doesn’t apply. The New Kid factors do apply for the nominative fair use. And the New Kid factors, the three of them, do speak to the risk of confusion, but it’s a certain kind of confusion that the speaker is sponsored or endorsed by the trademark holder. So, now that we know the limits of Plaintiff’s claim and we know what law is going to apply, this is another one that needs to go back to the drawing board because some of these do go to conf—some of the requests for production by the Defence in particular in 19 through 21 go to confusion. Some of those, if they’re narrowed appropriately, might be askable under New Kid. I’m not going to sit here and parse that. That’s not my job. That’s your job. So, you got to go back and meet-and-confer. I thought of RFPs 19 through 21 as really being about actual confusion. Okay, so confusion is relevant to the extent it is part of New Kid. Please meet-and-confer further. So, denied without prejudice to you doing that, and seeing if you can reach reasonable compromises that are tailored to the actual non-infringement claim.

Judge Ryu: Then we get to RFPs 22 and 23, which I’m labeling as confusion and dilution. So my understanding of the dec relief claim for non-dilution is that we’re not looking at Sleekcraft. That that’s not what non-dilution is about. Non-dilution is about “did WPE’s use of its name and actions dilute the WordPress trademark by tarnishment,” essentially, right? That goes back, kind of, to RFP 6 in the first one. The argument by the Defence that WPE’s products were slipping long before Mullenweg made his comments and by doing that, WPE was diluting the WordPress brand. Is that a fair statement Ms. Samplin about the nature of the defence on this? Or why you’re asking for this?

Automattic’s Samplin: Of course we had confusion as well because until today we didn’t hear that the dec relief claim related to infringement was narrowed. It was not as pleaded. So there was that component in our letter as well.

Judge Ryu: Okay, okay. So with respect to 22 and 23, you need to go back, meet-and-confer. It’s not gonna be about Sleekcraft, it’s gonna be about non-dilution. So if there are things in those RFPs that are relevant to that concept, then that might be discoverable, but you need to do some more work on that. On the timeframe though, my tentative would be, the timeframe will be January 2020 to the present. It matches the timeframe for RFP 6 in the first letter, which is the period of time we’re looking at for customer complaints.

Judge Ryu: Okay. Then, the last bunch is RFPs 30 through 33, having to do with customer base. The only argument Defendant made was Sleekcraft, which doesn't apply. Now, I don’t know, maybe there’s other arguments to make, but that’s all I heard. So I’m going to deny the request without prejudice to you trying—maybe there’s arguments that they’re relevant to—I don't know, other things that we now know are relevant to these claims. So, that’s my ruling with respect to the last JDL. This one, again, this is Defendants’ motion to compel. So, Ms. Samplin, I’ll start with you.

Automattic’s Samplin: Yeah, I mean, obviously it’s a little bit frustrating to us because we have had multiple meet-and-confers on this.

Judge Ryu: Not as frustrating as it is to me.

Automattic’s Samplin: I’ll give you that. But, as you noted, the dec relief claim for infringement is pleaded as a declaratory relief, a declaratory judgment of non-infringement. That’s broad. So I just want to make sure what we’re saying is—

Judge Ryu: Well, what she said, the argument in the letter was, “This is what this is about.” I just pinned them down on the record. So now we know they can’t just rely on the letter. They’ve said it to the court. The non-infringement dec relief is only nominative fair use, laches, acquiescence, and no standing by the defendants to be able to bring infringement.

Automattic’s Samplin: Okay, well, it’s helpful. Obviously, which we knew it sooner, but it is what it is.

Judge Ryu: And I’m gonna put it in the minute order, so we’ve got it.

Automattic’s Samplin: Okay. But I think, so I understand your ruling then that Sleekcraft isn’t the analysis, but I do think there’s overlap and we’ll meet-and-confer. On the third New Kids factor, it’s that the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

Judge Ryu: I agree with you. I mean, as I said, there may be some of these RFPs or documents that are responsive and kind of map on to New Kid factor, but I’m not gonna sit here and do that analysis today. That’s really your job. I think you all can work through that. If there’s a real dispute, then you’ll try to get in front of me, but this is not the time to kind of workshop that, okay?

Automattic’s Samplin: Okay, well then I guess we have work to do.

Judge Ryu: Yes. Anything more Ms. Samplin?

Automattic’s Samplin: I think we’re kind of set to meet-and-confer. So I’ll just save my time to respond.

Judge Ryu: Okay, Ms. Caruso?

WP Engine’s Caruso: Your Honour, we understand that you’d like us to meet-and-confer and your position on those things, and we certainly have positions as to why what they're seeking still is not relevant in any way. And we’ll take that up with them.

Judge Ryu: Okay, thanks. Yeah, I’m sorry to put this back on you, but I hope you’re understanding—I hope what I’ve given you a little bit today is what I’m expecting you all to be talking about. What I actually look at, if this came to me as a dispute, then I’d see, did you tailor it to the actual claims and defences? Is it really burdensome? And I’d want real numbers, not back of the envelope, but “we ran this”—and you both did some of this—”we ran this, this is what’s turning up.” So that I really have the grist for the mill. But we don’t use discovery hearings to kind of do the meet-and-confer as it’s happening. I wish I could offer that. You can always go out and buy those services. But we unfortunately can’t do that as part of a court hearing on these. So I thank you for your time. We’ll get to the other four in due course. Is there anything further from the Plaintiff?

WP Engine’s Caruso: No, Your Honour, thank you very much.

Judge Ryu: From the Defence?

Automattic’s Samplin: No, Your Honour, thank you.

Judge Ryu: Okay, thank you all. We’re concluded.

Court Deputy: This court is now adjourned.

Total hearing time: 57:15