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

Filing 52

OBJECTIONS in Opposition re: MOTION for Protective Order for protection of Veoh's Confidential Technological and commercial information 44 Objections to Declaration of Joseph Papa filed by Plaintiffs Songs of Universal, Inc., Universal-Polygram International Publishing, Inc., Rondor Music International, Inc., Universal Music - MGB NA LLC, UMG Recordings, Inc., Universal Music - Z Tunes LLC, Universal Music - MBG Music Publishing Ltd., Universal Music Corp.. (Ledahl, Brian)

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UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al Doc. 52 Re: Dkt. # 44 1 Steven A. Marenberg (101033) (smarenberg@irell.com) Elliot Brown (150802) (ebrown@irell.com) 2 Brian Ledahl (186579) (bledahl@irell.com) Benjamin Glatstein (242034) (bglatstein@irell.com) 3 IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 4 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 5 Facsimile: (310) 203-7199 6 Attorneys for Plaintiffs UMG Recordings, Inc.; 7 Universal Music Corp.; Songs of Universal, Inc.; 8 Universal-Polygram International Publishing, Inc.; Rondor Music International, Inc.; 9 Universal Music ­ MGB NA LLC; Universal Music ­ Z Tunes LLC; 10 and Universal Music ­ MGB Music Publishing Ltd. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION UMG RECORDINGS, INC., et al., ) ) Plaintiffs, ) ) v. ) ) VEOH NETWORKS, INC., a California ) corporation, DOES 1-10, inclusive, ) ) Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-05744 AHM (AJWx) UMG'S OBJECTIONS TO LATE-FILED DECLARATION OF JOSEPH PAPA Judge: Hon. Andrew J. Wistrich [Joint Stipulation of Parties Filed May 22, 2008] Date: June 23, 2008 Time: 10:00 a.m. Courtroom: 690, The Hon. Andrew J. Wistrich 1880742 UMG'S OBJECTIONS TO LATE-FILED DECLARATION OF JOSEPH PAPA Dockets.Justia.com 1 I. 2 INTRODUCTION In connection with its motion for protective order seeking additional protections beyond 3 those set forth in the stipulated Interim Protective Order, Veoh failed to present any evidence to 4 support its motion. Now, in connection with its supplemental brief (filed at approximately 10:30 5 p.m. on the last day for filing such briefs), Veoh submits a late declaration from Joseph Papa to try 6 to remedy its complete failure of proof. Veoh's effort (implicitly conceding its failure to support 7 its motion) should be disregarded and stricken because it is both untimely and because it offers 8 nothing but unsupported conclusory assertions. Such conclusory assertions cannot support Veoh's 9 motion any more than the ipse dixit arguments set forth in Veoh's moving papers. 10 II. 11 THE PAPA DECLARATION IS UNTIMELY Veoh, as both the moving party and the party requesting added protections, is required to 12 make a specific showing of need for a court to order the additional limitations in its proposed 13 protective order. See Frazier v. Layne Christensen Co., 2005 U.S. Dist. LEXIS 2358, *2-3 (W.D. 14 Wisc., Feb. 11, 2005) ("[D]efendants have to show that (1) the interest for which it is seeking 15 protection is confidential business information qualified for protection, and (2) there is good cause 16 to protect this information from disclosure to these particular witnesses."). Veoh was obliged to 17 come forward with any evidence supporting its motion in its moving papers. It failed to do so. 18 Instead, as set forth in UMG's portion of the Joint Stipulation, Veoh's motion offered nothing but 19 ipse dixit assertions that it possesses some unspecified sensitive information and that such 20 information was somehow threatened if the additional restrictions it seeks were not entered. 21 Now, after all of the briefing of the motion is done, Veoh tries belatedly to offer evidence 22 to support its assertions. Veoh's delay is inexcusable; neither the facts, nor the law have changed 23 since Veoh prepared its motion. If Veoh had evidence to support its motion, it should have 24 presented it in filing the motion. Presenting the Papa Declaration now is too little too late. 25 III. 26 THE PAPA DECLARATION MAKES ONLY CONCLUSORY ASSERTIONS Pursuant to Local Rule 7-7, declarations "shall contain only factual, evidentiary matter." 27 The Papa declaration does not provide such material to support Veoh's motion. Even if it were 28 timely filed, the Papa declaration fails to meet this standard. The only factual, evidentiary -21880742 UMG'S OBJECTIONS TO LATE-FILED DECLARATION OF JOSEPH PAPA 1 information in the Papa Declaration is his name, title, job description, and his quotation of UMG's 2 Interrogatory No. 3. The remaining portions of the declaration contain only unsupported 3 conclusions.1 Veoh merely repeats the ipse dixit assertions in its portion of the Joint Stipulation in 4 the declaration of one of its employees. For example, Papa declares that "Veoh operates in a 5 highly competitive and cutting edge field." This does nothing more than echo the conclusory 6 assertion in the Joint Stipulation. 7 Papa further claims he has reviewed many of UMG's document requests and 8 interrogatories, and has concluded that "[m]any of them call for highly confidential information, 9 which, if it were to be disclosed to Veoh competitors, would greatly disadvantage and cause 10 irreparable commercial harm to Veoh." Papa offers no explanation of what this highly 11 confidential information is, nor what disadvantage and irreparable harm would result from its 12 disclosure to Veoh's competitors. Papa makes similar statements after quoting UMG's 13 Interrogatory No. 3; Papa states that "[i]f such information were revealed to Veoh's competitors, it 14 would put Veoh at a significant commercial disadvantage." Again, he does not specify what 15 information is particularly sensitive (if any), nor what commercial disadvantage to Veoh would 16 occur if this information were revealed to a competitor. Papa even uses the same hollow term-- 17 "significant commercial disadvantage"--when stating what would happen if Veoh's confidential 18 information, like its license agreements, were revealed. The Papa Declaration is devoid of 19 substance. Even if it were timely submitted, it would not be proper for consideration by the Court. 20 Rather, the parties have negotiated an interim protective order with provisions regarding 21 expert disclosure that are modeled after those used in the Northern District of California. These 22 provisions are even more restrictive than those which served the parties well in the UMG v. 23 MySpace and UMG v. Grouper cases, when they were pending before this Court. There is no 24 basis nor reason to depart from these provisions in this case. Indeed, merely asserting that Veoh 25 has sensitive information generally does nothing to support Veoh's motion. The parties agree that 26 a protective order should be entered to protect confidential information. Veoh must show that its 27 information is so sensitive that it would not be protected without the additional protections 28 1 UMG specifically objects to paragraphs 2-5 of the Papa Declaration as conclusory. -3- 1880742 UMG'S OBJECTIONS TO LATE-FILED DECLARATION OF JOSEPH PAPA 1 requested in its motion. The Papa Declaration provides no such evidence. Hence, the terms of the 2 Interim Protective Order should be adopted by the Court as the final protective order. 3 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 -41880742 UMG'S OBJECTIONS TO LATE-FILED DECLARATION OF JOSEPH PAPA Dated: June 11, 2008 IRELL & MANELLA LLP Steven A. Marenberg Elliot Brown Brian Ledahl Benjamin Glatstein By: /s Brian Ledahl Brian Ledahl Attorneys for Plaintiffs

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