Law of Cards: Upper Deck vs Upper Deck International Poised to Go Global - UPDATE

Law of Cards: Upper Deck vs Upper Deck International Poised to Go Global – UPDATE

UPDATE (Oct. 19): Both parties have jointly requested a stay from the court to ask for more time to take discovery, and the reason they are asking for more time is because of the foreign discovery.

I think you'll agree with me that the Upper Deck v. Upper Deck case has provided quite a bit of entertainment for the United States. It looks like the American Upper Deck defendants agree, because they are sending the Upper Deck Jerry Springer Case on a world tour.

First stops — the UK and Australia.

Now, when you go global, you have to appropriately brand yourself. So Upper Decks, may I suggest that we call this the tour UD2?

Sure, technically the case was already international because it involved Upper Deck International,which is from the Netherlands. But, to date the, main excitement took place in an American court. It's only fair to share this back-stabbing, name-calling, drama-filled case with two other continents.

The reason the UD2 tour is going global is because the defendants want to learn about business transactions that took place in the UK and Australia. These topics are so abstract I'm not going to waste time trying to figure out how they intertwine with the whole UD-Konami-YuGiOh counterfeiting mess. I kind of thought that was the whole point of the case, so maybe these issues don't even fit in. Whatever.

This is fine because what's more interesting than the substance of the requests, at this point, is the procedure.

Foreign discovery is a pain in the neck. It's hard and an extremely long and drawn out process.  Most people know that the U.S. legal process takes forever. Foreign courts aren't much better. Put them together in a process like foreign discovery and, well, you're going to be in line for a while.

To get foreign discovery, the defendants have asked the U.S. court for permission to send discovery requests abroad under the Hague Convention.

Legal translation: In order to get foreign discovery, you need to ask the U.S. court to basically ask the foreign courts to "do it a solid" and give the party the discovery they want. Foreign courts, however, don't have to do squat, but sometimes they do allow discovery under the principle of "comity."

Legal translation of legal translation: Basically, the defendants want the U.S. court to tell the UK and Australian courts, "You scratch my back Mr. Foreign Court, and I'll scratch your back if you ever need discovery in the United States."

Given the timelines in this case, I don't think the defendants have sufficient time to go through this whole process. Discovery is supposed to be completed by November 30,  which is just over a month away. Like I wrote above, foreign discovery takes next-to-forever to complete, especially since the defendants want documents and depositions in these countries too.

But behind the scenes, there might be more to seeking foreign discovery than just preparing additional arguments. I suspect part of the defense strategy is to force the plaintiffs to run out of money.

As you'll recall, a few months ago, the plaintiffs asked the court to stay the case in view of their bankruptcy proceedings. The court basically said, "No," and "If you run out of money that's your own fault." In this case, it's good legal strategy as a defendant here to (within the confines of the case) try and make the plaintiff's spend money until they’ve got nothing left.

At which point, they will no longer exist. Then the case will no longer exist. And the UD2 tour would come to a crashing halt.

I guess you could say the defendants' request is for an international farewell tour. So, fans in the UK and Australia, buy your tickets soon. Before you know it, the UD2 tour will wrap up, and, with it, all the good times we shared on this Upper Deck Jerry Springer Legal Spinoff.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department (http://www.simmonsfirm.com). Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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