4825-0323-3041.1 

September 13, 2012 

VIA ECF

COURTESY COPY VIA FEDEX

ATTORNEYS AT LAW

90 PARK AVENUE 

NEW YORK, NY 10016-1314 

212.682.7474 TEL 

212.687.2329 FAX 

foley.com 

WRITER’S DIRECT LINE 

212.338.3528 

rweisbein@foley.com EMAIL

CLIENT/MATTER NUMBER 

092958-6007 

Magistrate Judge Michael A. Hammer 

Martin Luther King, Jr. Federal Building & 

 U.S. Courthouse 

Court Room MLK 3C 

50 Walnut Street 

Newark, New Jersey 07101 

Re: Virtual Studios, Inc. v. Couristan, Inc., Case No. 11-cv-00427-JLL-MAH 

Dear Magistrate Judge Hammer: 

We write to apprise the Court of developments since the Court’s July 31, 2012 order 

directing the parties to meet and confer with respect to their discovery dispute regarding Plaintiff 

(“Virtual”)’s belated attempt to seek discovery of Couristan’s profits and amend its damages 

theory to seek an accounting. As the Court is aware, Couristan’s position is that Virtual’s 

amendment is far too late to be effective, and that Couristan should not continue to be burdened 

by the added costs of Virtual’s chosen counsel’s admitted unfamiliarity with applicable law and 

admitted inattention to detail. Virtual’s position is that, even though fact discovery has closed, it 

would neither prejudice nor cause undue burden to Couristan if Virtual amended its damages 

theory and the parties now took discovery relating thereto, and that, consequently, discovery 

should be reopened with respect to that damages theory. 

In accordance with the Court’s July 31, 2012 order, we conferred with our client and on 

August 31 have reached out to Virtual’s counsel to see if an accommodation could be reached. 

Though we believe a ruling on the merits would entitle Couristan to an award of costs and to the 

exclusion of Virtual’s new profits damages theory from the case, we offered to meet Virtual 

halfway by allowing the discovery to go forward and for Virtual to present its profits damages 

theory at trial, so long as Virtual would pay for the expenses Couristan already has incurred and 

would continue to incur in connection therewith. By e-mail dated September 4, 2012, Virtual’s 

Case 2:11-cv-00427-JLL-MAH Document 66 Filed 09/13/12 Page 1 of 2 PageID: 442
Magistrate Judge Michael A. Hammer 

September 13, 2012 

Page 2 of 2 

4825-0323-3041.1 

counsel rejected that proposal out of hand. By reply e-mail that same day, we asked if Virtual 

had a compromise proposal of its own to suggest. 

Having not received a response to that question, by e-mail dated September 10, 2012, we 

then offered to forego our planned request for costs if Virtual would withdraw its claim for 

profits damages. By e-mail dated September 12, 2012, Virtual rejected that proposal out of hand 

as well. To this point, however, Virtual has not offered any compromise of its own. Rather, it 

simply continued to insist that it be allowed to take profits discovery and amend its damages 

theory. 

Respectfully, while we will of course do as the Court directs and plan to appear at the 

scheduled conference this coming Tuesday, it is difficult to see what use further attempts to meet 

and confer will be if Virtual’s “compromise” position is that the discovery it seeks go forward at 

Couristan’s cost and expense, and we would prefer to avoid wasting the Court’s time (and 

incurring further expense to Couristan) by engaging in fruitless discussions. Any guidance the 

Court could provide would be much appreciated. 

Respectfully submitted, 

/s/ Robert S. Weisbein 

Robert S. Weisbein 

cc: Robert Margulies, Esq. (via ECF) 

Frank Catalina, Esq (via ECF) 

Jay Lubetkin, Esq. (via ECF) 

Case 2:11-cv-00427-JLL-MAH Document 66 Filed 09/13/12 Page 2 of 2 PageID: 443