Doe I et al v. Cisco Systems, Inc. et al
Letter Brief re 29 Letter Brief, Opposition to Defendants' Letter Brief filed byDoe I, Doe II, Doe III, Doe IV, Doe V, Doe VI, Liu Guifu, Ivy He, Charles Lee, Roe VII, Roe VIII. (Attachments: # 1 Declaration of Rajika Shah, # 2 Proposed Order)(Related document(s) 29 ) (Boyd, Kathryn) (Filed on 7/1/2011)
SCHWARCZ, RIMBERG, BOYD & RADER, LLP
KATHRYN LEE BOYD*
6310 SAN VICENTE BOULEVARD
Los ANGELES, CALIFORNIA 90048
New York, NY 10006
KLARy PUCCI, OF COUNSEL
PROF. MICHAEL J. BAZYLER,
JEFF NEIDERMAN, ASSOCIATE
LOCAL (323) 302-9488
FACSIMILE (323) 931-4990
RArIKA L. SHAH, ASSOCIATE
SHERLI SHAMTOUB, ASSOCIATE*
KRISTEN L. NELSON, ASSOCIATE
July 1, 2011
• Also Admitted in NY
,. Admitted only in NY
"'Also Admitted in NY and NJ
The Honorable Jeremy Fogel
United States District Court
Northern District of California
280 South 1st Street
San Jose, California 95113
Opposition to Defendants' Administrative Motion Regarding Plaintiffs' Motions To
Commence and Proceed as Pseudonymous Plaintiffs and Through Appointed Next Friend
Doe 1 et at. v. Cisco Systems, Inc. et at.. Case No.5: 11-cv-02449-JF-PSG
Dear Judge Fogel:
Plaintiffs respond in opposition to Defendants' letter brief in support of its Administrative
Motion dated June 27,2011 ("Letter"). As an initial matter, Defendants consent to permitting
Plaintiffs to proceed anonymously and through next friends through the date of a decision on
Defendants' expected motion to dismiss. Accordingly, Plaintiffs hereby have no objection to the
continuance of the July 29,2011, hearing on those matters until after the disposition ofthe
motion to dismiss, on the condition that an order be entered now granting full anonymity to Does
and permitting Roes to proceed as next friends, as consented to by Defendants. A Proposed
Order is attached hereto pursuant to Civil Local Rule ("L.R.") 7-11 (b).
In the alternative, ifthis Court is not inclined to grant full anonymity to Does andlor to
permit Roes to proceed as next friends until a decision and order on the motion to dismiss, as is
agreed to by all parties, Plaintiffs respectfully request that the July 29,2011, hearing stand.
It is worth noting that Defendants' Administrative Motion filed as a letter is improper for
a number of procedural and substantive reasons. First, procedurally, Defendants violated L.R. 74( c), by failing to provide prior notice to Plaintiffs. Counsel for Plaintiffs was first contacted by
counsel for Defendants on June 29, two days after the Letter was filed, and only at that time were
Plaintiffs informed that the Letter was intended to be an administrative motion. See Declaration
ofRajika Shah ("Shah Decl.") at ~ 9. In addition, Defendants' Administrative Motion does not
SCHWARCZ, RIMBERG, BOYD & RADER,
Hon. Jeremy Fogel
July 1, 2011
conform to the requirements ofL.R. 7-11(a), which specifically states that administrative
motions "must be accompanied by a proposed order and by either a stipulation under L.R. 7-12
or by a declaration that explains why a stipulation could not be obtained." Thus the Letter is not
supported by any evidence whatsoever. See L.R. 7-5 (requiring factual contentions made in
support of a motion to be supported by an affidavit or declaration which "must avoid conclusions
and argument."). Finally, contrary to Defendants' unsupported factual assertion, Plaintiffs met
and conferred with Defendants on numerous occasions regarding the July 29 hearing date on
Plaintiffs' Motion To Commence and Proceed as Pseudonymous Plaintiffs ("Motion To Proceed
Anonymously") and Motion To Commence and Proceed Through Appointed Next Friend
("Motion To Proceed Through Next Friend") (together, "Motions"). Shah Decl. at,-r,-r 2-6. On
none of those occasions, even when specifically asked, did Defendants represent that a hearing
date of July 29 would cause them undue prejudice, as is required by the San Jose Judges'
Standing Order Regarding Case Management in Civil Cases. Id. Rather, Defendants simply
sidestepped the question by attempting to secure Plaintiffs' agreement to move the hearing date.
Id. Defendants have never indicated that they are unavailable to attend a hearing on July 29.Id.
Indeed, Defendants' own Letter does not even contend that a hearing date of July 29 would cause
them undue prejudice. See Letter, Docket Entry ("DE") 29.
Substantively, Defendants attempt to paint in broad strokes both Plaintiffs' complaint and
their Motions as raising "complex claims," Letter at 1, and "complex factual disputes," Letter at
3. However, this matter is uncomplicated. In particular, resolving the question of anonymity is
not as onerous as Defendants suggest given that this Circuit's standard for considering such
motions is well developed. See Doe v. Kamehameha Sch., 596 F.3d 1036, 1044 (9th Cir. 2010)
(citing Does I Thru XXIII v. Advanced Textile Corp., 214 F .3d 1058, 1071 (9th Cir. 2000), for the
proposition that "physical harm presents the paradigmatic case for allowing anonymity").
Coupled with the well-documented grave physical harms that Plaintiffs face, see U.S. Dept. of
State's 2009 and 2010 Human Rights Reports on China ("Human Rights Reports"), Ex. A and B
to Decl. of Terri Marsh in support of Motion to Proceed Anonymously, DE 4; Motion to Proceed
Anonymously, DE 2 at 5:1-9, disposition ofthe Motions at this time raises no novel or
complicated issues. 1
in Alien Tort Statute cases routinely allow plaintiffs to proceed anonymously from the
filing of the complaint through at least the jurisdictional ruling. See, e.g., Doe v. Nestle, S.A.,
748 F. Supp. 2d 1057 (C.D. Cal. 2010); Doe Iv. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004);
Doe v. Saravia, 348 F. Supp. 2d 1112 (B.D. Cal. 2004); Doe Iv. Reddy, 2003 U.S. Dist. LEXIS
26120 (N.D. Cal. Aug. 4, 2003); Doe Iv. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997); see
also Doe v. Constant, 354 Fed. Appx. 543 (2d Cir. 2009); Doe v. Exxon Mobil Corp., 473 F.3d
345 (D.C. Cir. 2007); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); James v.
Jacobson, 6 F.3d 233 (4th Cir. 1993); Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Yousufv.
Samantar, Civ. No. 1:04-1360 (B.D. Va. Jan. 7,2005); Chavez v. Carranza, 407 F. Supp. 2d
925 (W.D. Tenn. 2004); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1999); Doe I v. Islamic
Salvation Front, 993 F. Supp. 3 (D.D.C. 1998); Doe v. Shakur, 164 F.R.D. 359,360-61
(S.D.N.Y. 1996); Doe v. Bell Atl. Sys. Serv., Inc., 162 F.R.D. 418 (D. Mass. 1995); Doe v. United
Servs. Life Ins., 123 F.R.D. 437 (S.D.N.Y. 1988); Doe v. Hallock, 119 F.R.D. 640, 642-43 (S.D.
Hon. Jeremy Fogel
July 1, 2011
In fact, numerous federal courts have expressed specific concern for the human rights
abuses that Chinese plaintiffs would face at the hands of the Chinese government if their names
were released in connection with their lawsuit. See Advanced Textile, 214 F.3d at 1071 (stating
"the government of China has the ability to arrest and imprison its citizens ... The fact that the
Chinese government has punished workers for complaining about their working conditions
abroad also bolsters the reasonableness of plaintiffs' fears."); see also Doe Iv. Liu Qi, 349 F.
Supp. 2d 1258, 1294-95 (N.D. Cal. 2004) (acknowledging and citing Department of State letter
regarding Chinese government abuse and mistreatment of Falun Gong practitioners); Doe v. INS,
United States Dep't ofJustice, 867 F.2d 285 (6th Cir. 1989) (allowing asylum petitioner to use
pseudonym in order to protect family in China from reprisals). These concerns are present to an
even greater degree here given that Falun Gong practitioners face particularized, extraordinary
abuses that few other groups in China face. See Human Rights Reports, Ex. A and B to Decl. of
Terri Marsh in support of Motion to Proceed Anonymously, DE 4.
Significantly, each Plaintiff that now seeks to proceed anonymously has been tortured
and persecuted for openly practicing and/or defending Falun Gong in the past. Complaint at ~~
5-15, 113-214. As such, there is little room for speculation that Plaintiffs would not be subjected
to those same forms of persecution should their identities be connected to this case. Plaintiffs
were vulnerable to these reprisals in the past and they remain so now. Defendants' assertion of
the complexity of this matter sitnply strains credulity.
Accordingly, there is no substantively valid reason for this Court to administratively
move the hearing date of the Motions, as Plaintiffs are entitled to the Court's determination as to
whether they may proceed anonymously and through next friends even at this early stage of the
litigation. See Advanced Textile, 214 F .3d at 1064, 1068 (9th Cir. 2000) (plaintiffs filed a crossmotion requesting to proceed anonymously at the time defendants filed a motion to dismiss, in
part for plaintiffs' failure to include their true names in the complaint); E.E.o.C. v. ABM
Industries, 249 F.R.D. 588,589-590 (B.D. Cal 2008) (anonymity was requested at the time
plaintiffs filed motion for leave to intervene, one month after the initial complaint was filed);
Doe 130 v. Archdiocese ofPortland in Oregon, 2008 WL 656021 at *5 (D. Oregon 2008) (the
court considered plaintiffs anonymity in connection with a motion to dismiss that alternatively
requested the court to order plaintiff to reveal his name if the motion to dismiss was denied).
Moreover, although Defendants claim they would suffer prejudice if the Motions were
heard on July 29, see Letter at 2, the Court is required to "determine the precise prejudice at each
stage of the proceedings to the opposing party, and whether proceedings may be structured so as
to mitigate that prejudice." Advanced Textile, 214 F.3d at 1068 (emphasis added); see also Liu
Qi, 349 F. Supp. at 1294-95; INS, United States Dep't ofJustice, 867 F.2d at 285.
In sum, Plaintiffs do not seek to create unnecessary work on the part of both sides or
undue work from the Court with these Motions as suggested in the Letter. Indeed, Defendants
have already conceded that they do not oppose Plaintiffs' July 29 Motions. See Letter at 2
(stating that "Defendants have no objection to permitting the Plaintiffs to proceed anonymously
and through next friends from now through the date of a decision on Defendants' motion to
dismiss.") (emphasis added). Since that is the case, Defendants' proper course of action should
have been to simply file a statement of non-opposition. Instead, they have asked this Court and
Plaintiffs to expend unnecessary time and resources on this administrative motion, when
Hon. Jeremy Fogel
July 1, 2011
Plaintiffs are entitled to a determination on their Motions to proceed anonymously and through
next friends at this stage of the proceedings and binding case law clearly allows this Court to
revisit those questions at a later stage if necessary. See Advanced Textile, 214 F3d at 1068.
Accordingly, Plaintiffs request this Court grant the Proposed Order; or in the alternative
permit the July 29 hearing to proceed as scheduled.
K. Lee Boyd, Esq.
SCHWARCZ RIMBERG BOYD & RADER, LLP
Tevrl M- Mo..ntl-
Terri M. Marsh, Esq.
HUMAN RIGHTS LAW FOUNDATION