The case of the day is Skillz Platform, Inc. v. Papaya Gaming, Ltd. (SDNY 2024). I’ve written a lot recently about the use of the Evidence Convention to take discovery from non-parties, so I thought I’d write about a case involving discovery from a party, where it’s 100% correct to look at the Aérospatiale analysis.
Skillz and Papaya are both online gaming platforms. Papaya is an Israeli firm. Skillz sued for false advertising and deceptive trade practices. The claim was that Papaya told customers that they could play games against other people when in fact they were playing against robots. What a world we live in.
Skillz served requests for production of documents on Papaya, seeking documents relating to Papaya’s alleged use of bots and relating to damages. Papaya objected to some of the requests on the grounds that Israeli data protection law forbade it from producing the documents without an Israeli court order, or in other words, without using the Evidence Convention. The parties were able to narrow the dispute, with Papaya agreeing to produce anonymized log data relating to the use of bots and data regarding customers. But it still objected to producing internal communications an emails. Those communications are stored on Google servers in the European Union.
The court began by considering what Israeli law actually had to say. It considered declarations from Israeli law experts for both parties and found that the law did not forbid Papaya from producing the documents. The data pertained to a corporation, not to natural persons, a protective order was in place, and in any case the law allows for production of data necessary to litigate the claim in the US.
There’s no real reason to do the whole Aérospatiale analysis if there is no real argument that complying with the discovery request would cause Papaya to violate Israeli law. Nevertheless, the court went through the factors. Perhaps the most important factor weighing in Skillz’s favor was the risk that the Israeli courts would take a long time to execute a letter of request and that they would not allow a broad scope of discovery.
Image credit: Franz Eugen Köhler (public domain)
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