Doe I et al v. Cisco Systems, Inc. et al

Filing 48

NOTICE by Doe I, Doe II, Doe III, Doe IV, Doe V, Doe VI, Liu Guifu, Ivy He, Charles Lee, Roe VII, Roe VIII re 39 Notice (Other) Opposition to Notice of Pendency of Related Action or Proceeding (Attachments: # 1 Exhibit A to Opposition)(Boyd, Kathryn) (Filed on 8/4/2011)

1 2 3 4 5 6 7 8 9 10 11 KATHRYN LEE BOYD, ESQ. (SBN 189496) lboyd@srbr-law.com RAJIKA L. SHAH, ESQ. (SBN 232994) rshah@srbr-law.com SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Boulevard, Suite 360 Los Angeles, CA 90048 Phone: (323) 302-9488 Fax: (323) 931-4990 TERRI MARSH, ESQ. (pro hac vice) terri.marsh@hrlf.net BRIAN PIERCE, ESQ. (pro hac vice) bjpierce@gmail.com HUMAN RIGHTS LAW FOUNDATION 1615 L Street, NW, Suite 1100 Washington, D.C. 20036 Phone: 202-369-4977 Fax: 202-355-6701 12 Attorneys for PLAINTIFFS 13 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION 14 15 16 17 18 Case No. 5:11-cv-02449-JF DOE I, DOE II, Ivy HE, DOE III, DOE IV, DOE V, DOE VI, ROE VII, Charles LEE, ROE VIII, and LIU Guifu, Plaintiffs, 19 20 21 22 23 vs. CISCO SYSTEMS, INC., John CHAMBERS, Thomas LAM, Owen CHAN, and DOES 1100, Defendants. Assigned to the Honorable Jeremy Fogel, U.S.D.J. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF PENDENCY OF RELATED ACTION OR PROCEEDING Action filed: May 19, 2011 Scheduling Conference: August 26, 2011, 10:30am Courtroom: 3, 5th Floor 24 25 26 27 28 SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Blvd Los Angeles, CA 90048 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF PENDENCY OF RELATED ACTION OR PROCEEDING Case No. 5:11-cv-02449-JF 1 TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 On May 19, 2011, Doe I, Doe II, Ivy HE, Doe III, Doe IV, Doe V, Doe VI, Roe VII, 3 Charles LEE, Roe VIII, and LIU Guifu, (collectively “Plaintiffs”) filed suit against Cisco Systems, 4 Inc., John CHAMBERS, Thomas LAM, and Owen CHAN (collectively “Defendants”) in the 5 above-captioned case. See Complaint, Docket Entry (“DE”) 1. Defendants in their July 21, 2011 6 Notice of Pendency of Related Action or Proceeding (“Notice”) erroneously attempt to 7 characterize this suit as “involv[ing] all or a material part of the same subject matter” as that of an 8 entirely factually and legally distinguishable case filed on June 6, 2011 in the District of Maryland, 9 Daobin et al. v. Cisco Systems et al., Case no. 8:11-cv-01538-PJM.1 Notice, DE 38 at 2:3-4. 10 Although the above-captioned case shares some obvious similarities with Daobin, the two cases at 11 their core are factually distinct and rely upon different legal theories, and thus are not related. 12 Further, coordination of the two cases will not conserve resources or promote efficient 13 determination of the action, and would be prejudicial to Plaintiffs. 14 Pursuant to Local Rule 3-13, Plaintiffs respectfully oppose the Notice on the grounds that: 1. This Action and Daobin Do Not Call for the Determination of the Same or Substantially 15 16 Related Questions of Law and Fact 17 There are a number of significant legal and factual differences between the two 18 cases: First, Plaintiffs, citizens and residents of both the United States and China, are 19 20 Falun Gong practitioners who allege that they suffered gross human rights violations and 21 religious persecution at the hands of Public Security officers in China due to Defendants’ 22 collaboration with the Chinese Communist Party (“CCP”) in the design, supply and 23 maintenance of the censorship and surveillance network known as the Golden Shield. 24 Complaint, DE 1 at 1:4-16. Defendants’ technology was designed to enable the CCP to 25 eavesdrop, tap and intercept communications, identify, track, surveil, apprehend, arrest, 26 interrogate and torture Falun Gong practitioners in order to subject them to additional 27 1 28 SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Blvd Los Angeles, CA 90048 A copy of the Daobin et al. v. Cisco Systems et al. complaint is attached hereto for the Court’s convenience as Exhibit A. -1PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF PENDENCY OF RELATED ACTION OR PROCEEDING Case No. 5:11-cv-02449-JF 1 human rights abuses. Id. Conversely, the Daobin plaintiffs are not Falun Gong members, 2 but political activists alleging political persecution at the hands of the Chinese government. 3 Daobin Complaint, Exhibit A at 6-7, ¶¶ 14-15. This distinction requires different evidence 4 pertaining to different persecutory campaigns in China and involves potentially relevant 5 legal distinctions between state actors and non-state actors. See generally id. at 5-7. 6 Second, Daobin names a defendant who is not named here, namely Rick Justice, 7 Executive Advisor at Cisco Systems, Inc. Allegations against this defendant require proof 8 not required in the above-captioned case. 9 Third, Plaintiffs brought the instant action as class representatives and will move to certify a 10 class of individuals similarly situated – a motion which will involve investigation into numerous 11 legal and factual questions. See Complaint, DE 1 at 35:15-17. Daobin does not seek class action 12 status and therefore need not enter into any of the certification inquiries required by Fed. R. Civ. P. 13 Rule 23. See generally Daobin Complaint, Exhibit A at 5-7. 14 Fourth, the two cases raise altogether different federal and state claims, including a number 15 of state claims employing different legal standards. Specifically, Plaintiffs allege a violation of 18 16 U.S.C. § 2512(1), which prohibits the manufacture and sale of any electronic device knowing or 17 having reason to know that the design of the device makes it primarily useful for the purpose of the 18 surreptitious interception of wire, oral, or electronic communications. See Complaint, DE 1 at 44- 19 45. Plaintiffs also assert state law claims for wrongful death and unfair business practices under 20 Cal. Bus. & Prof. Code § 17200 et seq. Id. at 49-51. These claims raise legal issues that are not 21 present in Daobin. The Daobin plaintiffs furthermore allege claims for unlawful access to stored 22 communications, see Daobin Complaint, Exhibit A at 31-33, and Maryland state law claims for 23 negligence and intentional infliction of emotion distress, see id. at 30-31, which are not part of 24 Plaintiffs’ complaint. 25 Fifth, Daobin involves plaintiffs whose dissident activity and form of surveillance are 26 factually distinct from the activity and surveillance of the Plaintiffs in the above-captioned case. 27 The Daobin plaintiffs individually enjoyed a much higher profile in China than any of the named 28 Plaintiffs here, and were subjected to physical as well as online surveillance. The Plaintiffs in the -2- SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Blvd Los Angeles, CA 90048 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF PENDENCY OF RELATED ACTION OR PROCEEDING Case No. 5:11-cv-02449-JF 1 above-captioned case, on the contrary, were subjected almost exclusively to surveillance of their 2 online activity through use of the Golden Shield, until they were subsequently identified, arrested, 3 detained and tortured. 4 Sixth, the two cases seek different forms of relief. While the Daobin plaintiffs seek 5 monetary and declaratory relief only, see id. at 35-36, Plaintiffs here also seek to enjoin Defendants 6 from future unlawful activity. Complaint, DE 1 at 52. 7 2. Coordination or Transfer of the Cases to the Same District Would Further Expend 8 Resources and Prejudice Plaintiffs 9 Defendants argue in the Notice that coordination of this case and Daobin would conserve 10 resources. Notice at 2:23-24. However, for the reasons given above, coordination of the two cases 11 does not make sense for the following reasons: it would not conserve judicial or party resources but 12 rather require additional such resources to separately argue and manage the numerous legal and 13 factual distinctions, and would likely have the effect of hindering the speedy and efficient 14 prosecution of each action. Indeed, Defendants have already requested a stay of Daobin pending the 15 outcome of their forthcoming motion to dismiss in this case, and subjecting the Daobin plaintiffs to 16 further delay while class certification is decided here would cause further prejudice. 17 Additionally, transfer pursuant to 28 U.S.C. § 1407 is not warranted. Coordination and 18 transfer would complicate, rather than streamline, the judicial processes of both cases. This case is 19 a class action brought by practitioners of Falun Gong who have been subjected to human rights 20 violations through online surveillance techniques enabled by implementation of the Golden Shield, 21 which Defendants were instrumental in creating. The Daobin plaintiffs are neither Falun Gong 22 practitioners nor does their complaint allege that they were identified only through the use of the 23 Golden Shield. Accordingly, there are few, if any, common questions and transfer is not 24 appropriate. 25 /// 26 /// 27 /// 28 /// SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Blvd Los Angeles, CA 90048 -3PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF PENDENCY OF RELATED ACTION OR PROCEEDING Case No. 5:11-cv-02449-JF 1 Therefore, for all the reasons listed above, Plaintiffs respectfully oppose the Notice of 2 Pendency of Related Action or Proceeding filed by Defendants and request that the Court find that 3 Doe 1 et al. and Daobin are not related and are not subject to coordination or transfer. 4 5 6 7 DATED: August 4, 2011 Respectfully submitted, SCHWARCZ, RIMBERG, BOYD & RADER, LLP 8 9 By: 10 11 /s/ K. Lee Boyd K. Lee Boyd, Esq. Attorneys for Plaintiffs HUMAN RIGHTS LAW FOUNDATION 12 13 14 15 By: /s/ Terri E. Marsh Terri E. Marsh, Esq. Attorneys for Plaintiffs (pro hac vice) 16 17 18 19 20 21 22 23 24 25 26 27 28 SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Blvd Los Angeles, CA 90048 -4PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF PENDENCY OF RELATED ACTION OR PROCEEDING Case No. 5:11-cv-02449-JF