UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al

Filing 370

UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al

Doc. 370

1 IRELL & MANELLA LLP Steven A. Marenberg (101033) ([e-mail]) 2 Elliot Brown (150802) ([e-mail]) Brian D. Ledahl (186579) ([e-mail]) 3 Benjamin Glatstein (242034) ([e-mail]) 1800 Avenue of the Stars, Suite 900 4 Los Angeles, California 90067-4276 Telephone: [phone] Facsimile: [phone] 6 Attorneys for Plaintiffs 7 8 9 10 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28
IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION Plaintiffs, vs. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-07-05744 AHM (AJWx) UMG'S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON VEOH'S MOTION FOR SUMMARY JUDGMENT TO APRIL 27, 2009 Filed Concurrently Herewith: (1) Declaration of Steve Marenberg in Support of Ex Parte Application; (2) Declaration of Brian Ledahl in Support of Ex Parte Application; (3) [Proposed] Order Judge: Date: Time: Ctrm: Hon. A. Howard Matz TBD TBD 14

11 UMG RECORDINGS, INC., et al.,

14 VEOH NETWORKS, INC., et al.,

Discovery Cutoff: April 13, 2009 Pretrial Conference: July 13, 2009 Trial Date: July 28, 2009

UMG'S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON VEOH'S MOTION FOR SUMMARY JUDGMENT TO APRIL 27, 2009 2029227

Dockets.Justia.com

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that pursuant to Local Rule 7-19, Plaintiffs UMG 3 Recordings, Inc., Universal Music Corp., Songs of Universal, Inc., Universal4 Polygram International Publishing, Inc., Rondor Music International, Inc., Universal 5 Music ­ MGB NA LLC, Universal Music ­ Z Tunes LLC, and Universal Music ­ 6 MBG Music Publishing Ltd., (collectively "UMG") hereby apply to the Court ex 7 parte for an Order Continuing the Hearing on Veoh Networks, Inc.'s ("Veoh") 8 Motion for Summary Judgment Re: Entitlement to Section 512(c) Safe Harbor (Dkt. 9 No. 336) ("Motion for Summary Judgment" or "Motion") to April 27, 2009. 10 The basis for this ex parte is simple: UMG's lead counsel, Steven Marenberg, 11 is unavailable April 13, 2009, the date for which Veoh noticed hearing on its Motion 12 for Summary Judgment. Mr. Marenberg is lead counsel on a separate matter, the 13 arbitration for which runs from April 14 to April 20, 2009, in New York, NY. 14 Declaration of Steven Marenberg ("Marenberg Decl.") ¶ 4. Veoh's Motion for 15 Summary Judgment presents significant issues relating to UMG's claims against 16 Veoh, and, not unreasonably, UMG desires that its lead counsel argue its opposition 17 to Veoh's Motion. UMG therefore requests that this Court continue hearing on 18 Veoh's Motion to April 27, 2009, when Mr. Marenberg is available for argument. 19 This small continuance is consistent with the extended briefing schedule Veoh 20 requested ­ and to which UMG agreed ­ in connection with UMG's previously filed 21 motion for summary judgment. 22 24 25 26 27 28
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The name, address, and telephone number of counsel for all parties are as

23 follows:

1 Jennifer Golinveaux 2 WINSTON & STRAWN LLP 101 California Street 3 San Francisco, CA 94111-5894Fax: 4 Telephone: [phone] Facsimile: [phone] 5 Email: [e-mail] 6 7 8 Michael S. Elkin Thomas P. Lane 9 WINSTON & STRAWN LLP 10 200 Park Avenue New York, New York 10166 11 Telephone: [phone] Facsimile: [phone] Email: [e-mail] 13 Email: [e-mail] 14 Maria K. Vento 15 WILMER CUTLER PICKERING 16 HALE AND DORR LLP 1117 California Avenue 17 Palo Alto, CA 94304 18 Telephone: [phone] Facsimile: [phone] 19 Email: [e-mail] 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///
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Rebecca Calkins Erin Ranahan WINSTON & STRAWN LLP 333 South Grand Avenue, 38th Floor Los Angeles, CA 90071-1543 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Robert G. Badal WILMER CUTLER PICKERING HALE AND DORR LLP 350 S. Grand Avenue, Suite 2100 Los Angeles, CA 90071 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Alisa S. Edelson KULIK, GOTTESMAN, MOUTON & SIEGEL, LLP 15303 Venture Boulevard, Suite 1400 Sherman Oaks, CA 91403 Telephone: [phone] Facsimile: [phone] Email: [e-mail]

UMG'S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON VEOH'S MOTION FOR SUMMARY JUDGMENT TO APRIL 27, 2009

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1

Counsel for all parties received notice of this ex parte application on March

2 17, 2009. Declaration of Brian Ledahl ("Ledahl Decl.") ¶ 4 & Exhibit ("Ex.") B. 3 Veoh intends to oppose UMG's application. See Ledahl Decl. ¶ 4. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: March 18, 2009

IRELL & MANELLA LLP Steven A. Marenberg Elliot Brown Brian Ledahl Benjamin Glatstein

By:

/s Brian Ledahl

Attorneys for Plaintiffs

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1 2 I. 3

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Veoh noticed hearing on its Motion for Summary Judgment for April 13,

4 2009. It did so notwithstanding UMG's informing Veoh ­ pre-filing ­ that April 13 5 was unworkable for UMG. UMG's lead counsel, Steven Marenberg, has an 6 arbitration trial scheduled in New York City from April 14 through 20. Because 7 Veoh's Motion presents significant issues relating to UMG's claims, UMG desires 8 that Mr. Marenberg argue its opposition, something that is not possible given the 9 present hearing date. In addition, because Mr. Marenberg plays a key role in the 10 preparation and editing of UMG's motion papers in this case, UMG also desires Mr. 11 Marenberg to be available to prepare and edit UMG's opposition to Veoh's Motion 12 for Summary Judgment, currently due on March 30, 2009, a date on which Mr. 13 Marenberg is scheduled to be in Wilmington, Delaware for a short trial on another 14 matter. Veoh's noticed hearing date also denies UMG that opportunity. Having 15 been informed of these matters, Veoh will not agree to continue the hearing on its 16 Motion to accommodate UMG's lead counsel's existing scheduling conflicts. UMG 17 therefore requests that the Court grant this application and continue hearing on 18 Veoh's Motion to April 27, 2009 and continue the date by which UMG must file its 19 opposition until April 6, 2009. 20 II. 21 EX PARTE RELIEF IS APPROPRIATE AND NECESSARY Ex parte relief is appropriate where the moving party seeks relief that cannot

22 be addressed by a regularly-noticed motion, and will face prejudice if its application 23 is denied, provided that the party is without fault in creating the problem at issue. 24 Here, UMG merely seeks to continue a motion for two weeks to permit its lead 25 counsel to appear in connection with the motion and to participate in the preparation 26 of its opposition papers. This matter could not be addressed by a regularly-noticed 27 motion consistent with the timing required under Local Rule 7. UMG attempted to 28 avoid this difficulty through discussions with counsel for Veoh before the motion
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1 was filed, but Veoh chose to ignore UMG's requests regarding calendaring the 2 motion. 3 4 A. UMG Will Face Unfair Prejudice If This Application Is Denied If Veoh's Motion goes forward on April 13, 2009 as noticed, UMG's lead

5 counsel will be unable to appear on UMG's behalf at the hearing. Veoh's Motion 6 for Summary Judgment seeks an order establishing its entitlement to the so-called 7 "safe harbor" provided under 17 U.S.C. § 512(c). Veoh's Motion argues that it 8 should be exempt from all damages for its extensive infringement of UMG's 9 copyrights. 10 These are ­ without dispute by either party ­ significant issues. It is therefore 11 important that UMG's lead counsel ­ hired by UMG to address precisely such issues 12 ­ be permitted to argue UMG's opposition to Veoh's Motion. Veoh's proposed 13 hearing date denies Mr. Marenberg that opportunity. Mr. Marenberg is lead counsel 14 in an unrelated arbitration proceeding scheduled between April 14 and April 20, 15 2009 in New York City. See Marenberg Decl. ¶ 4. This arbitration proceeding 16 prevents Mr. Marenberg from appearing before this Court (in Los Angeles) on April 17 13, 2009. See id. 18 19 B. Veoh Created This Problem Despite UMG's Efforts Veoh purported to confer with UMG about scheduling before filing its motion

20 but then ignored UMG's indication that April 13 and 20 were unworkable hearing 21 dates. On Monday, March 9, and Tuesday, March 10, 2009, UMG and Veoh 22 discussed the briefing schedule for Veoh's then-unfiled Motion for Summary 23 Judgment. See Ledahl Decl. ¶¶ 2-3. Veoh initially proposed noticing its motion for 24 April 20, 2009. Id., Ex. A (3/9/2009 email from J. Golinveaux). UMG informed 25 Veoh that this date was unworkable because of Mr. Marenberg's trial obligations. 26 See id. ¶ 3; see also Marenberg Decl. ¶ 4. Veoh briefly raised the possibility of an 27 April 13 hearing date, which UMG indicated was also unworkable. UMG proposed 28 to Veoh a particular briefing schedule with an April 27 hearing date to
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1 accommodate Mr. Marenberg's schedule. UMG also pointed out that Mr. 2 Marenberg had a separate trial conflict on March 30 and 31 and consequently sought 3 to insure that UMG's responsive brief would not be due during that short interval. 4 See Ledahl Decl. ¶ 3; see also Marenberg Decl. ¶ 3. Veoh agreed to consider 5 UMG's proposal and get back to UMG regarding its proposed schedule. See Ledahl 6 Decl. ¶ 3. Instead, Veoh filed its Motion, noticing it for an even earlier hearing date 7 than they had initially proposed ­ April 13 ­ a date UMG had expressly 8 communicated was not workable (and which would place UMG's response brief due 9 precisely during Mr. Marenberg's other trial proceeding). UMG requested that Veoh 10 re-notice hearing on its Motion for April 27, but Veoh declined to do so. See id. ¶ 4. 11 Veoh refuses to reschedule its motion for a hearing only one week after the 12 hearing date Veoh itself initially proposed in discussions with UMG. Moreover, 13 Veoh's conduct stands in stark contrast to the accommodations Veoh sought, and 14 UMG provided, to Veoh when UMG moved for summary judgment in September 15 2008. Then, Veoh requested nearly four weeks to prepare its response to UMG's 16 motion. See Ledahl Decl. ¶ 5. Veoh's stated reason for needing this long briefing 17 schedule was to accommodate the plans of one of its attorneys, Jennifer Golinveaux 18 (not its lead counsel), to be out of the office for a week to celebrate her 40th 19 birthday. See id. UMG accommodated this request and calendared its motion 20 accordingly. Veoh's refusal to accommodate the scheduling conflicts of UMG's lead 21 counsel is entirely unjustified. Veoh has never provided any reason for its refusal to 22 calendar its motion for April 27 except that Veoh does not want to. Ledahl Decl. 23 ¶ 4. Veoh has not (and cannot) identify any prejudice it would suffer from the two24 week adjustment (only one week from Veoh's initial scheduling proposal) sought by 25 this application. 26 27 28
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1 III. 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CONCLUSION For the foregoing reasons, UMG requests that this Court continue hearing on

3 Veoh's Motion for Summary Judgment to April 27, 2009. Dated: March 18, 2009 Respectfully submitted, IRELL & MANELLA LLP Steven A. Marenberg Elliot Brown Brian D. Ledahl Benjamin Glatstein

By:

/s Brian D. Ledahl Attorneys for Plaintiffs

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MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF UMG'S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON VEOH'S MOTION FOR SUMMARY JUDGMENT TO APRIL 27, 2009