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KELLEY
KELLEY DRYE
DRYE & WARREN
W ARREN LLP
LLP
A LIMITED
L I M I T E D LIABILITY
L I A B I L I T Y PARTNERSHIP
PARTNERSHIP
W AS HI NGTO N, DC
WASHINGTON,DC F ACSIM I LE
FACSIMILE
LOS
LOS A NGE LES, CA
ANGELES,CA
101 PARK AVENUE ( 21 2)
(212) 8 08- 7 897
808-7897
C H I C A G O , IL
CHICAGO, IL NEW YORK, NY 10178 www.kelleydrye.com
www.kelleydrye.com
HO USTO N,T X
HOUSTON,TX
A USTI N,T X
AUSTIN,TX
(212)
(212) 808-7800
808-7800
P A RSI PP A NY,
PARSIPPANY, NJ
NJ
S TAM FORD,
STAMFORD, CT
CT
B RUS SE LS,
BRUSSELS, BE LGI UM
BELGIUM
AFFILIATE
A F F I L I A T E OFFICE
OFFICE
MUMBAI
M U M B A I , INDIA
INDIA
January 4, 2019
VIA NYSCEF
Hon. Barry R. Ostrager
Supreme Court of the State of New York
New York County
60 Centre Street, Room 232
New York, NY 10007
Re: Beazley Insurance Company, Inc. v. Take-Two Interactive Software, Inc., Index
No. 650532/2018
Dear Justice Ostrager:
I am responding on behalf of Defendant Take-Two Interactive Software, Inc. ("Take- (“Take-
Two”)
Two") to the January 2, 2019 letter to the Court filed by Plaintiff Beazley Insurance Co.
(“Beazley”) regarding a discovery dispute between the parties.
("Beazley")
Beazley’s letter is a transparent attempt to manufacture a discovery dispute.
Beazley's Take-Two
produced nearly 20,000 pages of documents on December 31, 2018, which Beazley's Beazley’s letter does
not appear to acknowledge. Moreover, Beazley only began producing documents itself just more
than two weeks prior to Take-Two’s
Take-Two's production, on December 13, 2018. Beazley’s purported
Beazley's
outrage rings hollow given where the parties are in document discovery, and as the parties in the
underlying litigation are similarly still engaged in document discovery.
Take-Two has not "refused
“refused to participate or to respond to Beazley's
Beazley’s written concerns
Take-Two’s document requests."
with Take-Two's requests.” To the contrary, counsel for Take-Two spoke with
counsel for Beazley, at length, on December 20, 2018 regarding the discovery issues raised in
Beazley’s prior correspondence.
Beazley's On that call, counsel for Take-Two agreed to produce certain
categories of documents requested by Beazley and informed Beazley of the legal and factual
bases for Take-Two’s Beazley’s remaining requests.
Take-Two's objections to Beazley's Counsel further advised
Beazley that Take-Two was willing to continue good faith discussions regarding Beazley's Beazley’s
discovery requests. Notwithstanding the foregoing, on January 2, at 9:50 a.m. Beazley advised
that it would be contacting the Court with its purported discovery dispute, and then, less than 30
minutes later, sent its letter to the Court.
KELLEY DRYE & WARREN LLP
Hon. Barry R. Ostrager
January 4, 2019
Page Two
Take-Two remains willing to continue to meet and confer with Beazley regarding the
issues raised in its letter, and anticipates that certain of the issues raised may be resolved by
further discussions, but Beazley's
Beazley’s effort to manufacture a dispute and prematurely rush this
Court’s attention is unwarranted.
matter to the Court's
Notwithstanding the above and the baseless assertions in Beazley's Beazley’s letter, it is the
following categories of documents that Take-Two has objected to producing:
Documents Concerning the Formation and Execution of the Royalty Plan. Beazley
seeks these documents as extrinsic evidence as to the meaning of the Royalty Plan, a contract at
issue in the underlying litigation. In its March 29, 2018 decision and order in Benzies v. Take-
Two Interactive Software, Inc., Index No. 651920/2016, the Appellate Division, First
Department (Mar. 29, 2018), held that the provisions of the Royalty Plan at issue are
“unambiguous”.
"unambiguous". Accordingly, these documents are irrelevant and therefore neither material nor
Beazley’s claims or defenses.
necessary to Beazley's
Confidential Mediation Communications: Take-Two objects to the production of these
documents, which are subject to a confidentiality agreement between Benzies and the defendants
in the underlying litigation.
Expert Reports. Take-Two objects to producing any information pertaining to experts
and consultants retained by the underlying defendants beyond that which the underlying
defendants would be required to produce to the underlying plaintiff pursuant to CPLR 3101(d)(1)
and (2).
Take-Two’s “Litigation Files.”
Take-Two's "Litigation Files." The only materials in Take-Two’s
Take-Two's possession that could
Beazley’s unduly vague request would be those files maintained by
conceivably respond to Beazley's
Take-Two’s
Take-Two's in-house counsel and its outside counsel pertaining to the Benzies Action and Take-
Two’s
Two's separate insurance coverage action against insurer National Union Fire Insurance Co. of
Pittsburgh, PA. Those materials, including the manner in which they are organized, are
privileged.
Very truly yours,
/s/
Michael C. Lynch
of KELLEY DRYE & WARREN LLP
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KELLEY KELLEY DRYE DRYE & WARREN W ARREN LLP LLP A LIMITED L I M I T E D LIABILITY L I A B I L I T Y PARTNERSHIP PARTNERSHIP W AS HI NGTO N, DC WASHINGTON,DC F ACSIM I LE FACSIMILE LOS LOS A NGE LES, CA ANGELES,CA 101 PARK AVENUE ( 21 2) (212) 8 08- 7 897 808-7897 C H I C A G O , IL CHICAGO, IL NEW YORK, NY 10178 www.kelleydrye.com www.kelleydrye.com HO USTO N,T X HOUSTON,TX A USTI N,T X AUSTIN,TX (212) (212) 808-7800 808-7800 P A RSI PP A NY, PARSIPPANY, NJ NJ S TAM FORD, STAMFORD, CT CT B RUS SE LS, BRUSSELS, BE LGI UM BELGIUM AFFILIATE A F F I L I A T E OFFICE OFFICE MUMBAI M U M B A I , INDIA INDIA January 4, 2019 VIA NYSCEF Hon. Barry R. Ostrager Supreme Court of the State of New York New York County 60 Centre Street, Room 232 New York, NY 10007 Re: Beazley Insurance Company, Inc. v. Take-Two Interactive Software, Inc., Index No. 650532/2018 Dear Justice Ostrager: I am responding on behalf of Defendant Take-Two Interactive Software, Inc. ("Take- (“Take- Two”) Two") to the January 2, 2019 letter to the Court filed by Plaintiff Beazley Insurance Co. (“Beazley”) regarding a discovery dispute between the parties. ("Beazley") Beazley’s letter is a transparent attempt to manufacture a discovery dispute. Beazley's Take-Two produced nearly 20,000 pages of documents on December 31, 2018, which Beazley's Beazley’s letter does not appear to acknowledge. Moreover, Beazley only began producing documents itself just more than two weeks prior to Take-Two’s Take-Two's production, on December 13, 2018. Beazley’s purported Beazley's outrage rings hollow given where the parties are in document discovery, and as the parties in the underlying litigation are similarly still engaged in document discovery. Take-Two has not "refused “refused to participate or to respond to Beazley's Beazley’s written concerns Take-Two’s document requests." with Take-Two's requests.” To the contrary, counsel for Take-Two spoke with counsel for Beazley, at length, on December 20, 2018 regarding the discovery issues raised in Beazley’s prior correspondence. Beazley's On that call, counsel for Take-Two agreed to produce certain categories of documents requested by Beazley and informed Beazley of the legal and factual bases for Take-Two’s Beazley’s remaining requests. Take-Two's objections to Beazley's Counsel further advised Beazley that Take-Two was willing to continue good faith discussions regarding Beazley's Beazley’s discovery requests. Notwithstanding the foregoing, on January 2, at 9:50 a.m. Beazley advised that it would be contacting the Court with its purported discovery dispute, and then, less than 30 minutes later, sent its letter to the Court. KELLEY DRYE & WARREN LLP Hon. Barry R. Ostrager January 4, 2019 Page Two Take-Two remains willing to continue to meet and confer with Beazley regarding the issues raised in its letter, and anticipates that certain of the issues raised may be resolved by further discussions, but Beazley's Beazley’s effort to manufacture a dispute and prematurely rush this Court’s attention is unwarranted. matter to the Court's Notwithstanding the above and the baseless assertions in Beazley's Beazley’s letter, it is the following categories of documents that Take-Two has objected to producing: Documents Concerning the Formation and Execution of the Royalty Plan. Beazley seeks these documents as extrinsic evidence as to the meaning of the Royalty Plan, a contract at issue in the underlying litigation. In its March 29, 2018 decision and order in Benzies v. Take- Two Interactive Software, Inc., Index No. 651920/2016, the Appellate Division, First Department (Mar. 29, 2018), held that the provisions of the Royalty Plan at issue are “unambiguous”. "unambiguous". Accordingly, these documents are irrelevant and therefore neither material nor Beazley’s claims or defenses. necessary to Beazley's Confidential Mediation Communications: Take-Two objects to the production of these documents, which are subject to a confidentiality agreement between Benzies and the defendants in the underlying litigation. Expert Reports. Take-Two objects to producing any information pertaining to experts and consultants retained by the underlying defendants beyond that which the underlying defendants would be required to produce to the underlying plaintiff pursuant to CPLR 3101(d)(1) and (2). Take-Two’s “Litigation Files.” Take-Two's "Litigation Files." The only materials in Take-Two’s Take-Two's possession that could Beazley’s unduly vague request would be those files maintained by conceivably respond to Beazley's Take-Two’s Take-Two's in-house counsel and its outside counsel pertaining to the Benzies Action and Take- Two’s Two's separate insurance coverage action against insurer National Union Fire Insurance Co. of Pittsburgh, PA. Those materials, including the manner in which they are organized, are privileged. Very truly yours, /s/ Michael C. Lynch of KELLEY DRYE & WARREN LLP