Brave New Films 501 (C)(4) v. Weiner et al

Filing 91

JOINT CASE MANAGEMENT STATEMENT Supplemental Joint Case Management Statement filed by Michael Weiner, Original Talk Radio Network Inc., Brave New Films 501 (C)(4). (Pierce, Sheila) (Filed on 6/5/2009)

Brave New Films 501 (C)(4) v. Weiner et al

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Anthony T. Falzone (SBN 190845) Julie A. Ahrens (SBN 230170) STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] William F. Abrams (SBN 88805) Sheila M. Pierce (SBN 232610) BINGHAM McCUTCHEN LLP 1900 University Avenue East Palo Alto, CA 94303-2223 Telephone: [phone] Facsimile: 650.849.4800 Email: [e-mail] Attorneys for Plaintiff Brave New Films 501(c)(4) Benjamin Aaron Shapiro (SBN 254456) 12330 Magnolia Blvd., #114 Valley Village, CA 91607 Telephone: [phone] Email: [e-mail] Ronald H. Severaid Carter Glahn SEVERAID & GLAHN, PC 1787 Tribute Road, Suite D Sacramento, CA 95815 Telephone: [phone] Email: [e-mail] Attorneys for Defendants Michael Weiner aka Michael Savage, and Original Talk Radio Network, Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BRAVE NEW FILMS 501(C)(4), Plaintiff, v. MICHAEL WEINER aka MICHAEL SAVAGE, and ORIGINAL TALK RADIO NETWORK, INC., Defendants. No. CV 08-04703 SI SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT Civil L.R. 16-10(d) Date: Time: Place: Judge: June 12, 2009 3:00 p.m. Courtroom 10, 19th Floor Honorable Susan Illston
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Pursuant to Civil Local Rule 16-10(d), Plaintiff Brave New Films 501(c)(4) ("Brave New Films"), and Defendants The Original Talk Radio Network, Inc. ("OTRN") and Michael Weiner aka Michael Savage ("Savage") (collectively "the Parties") jointly submit the following Supplemental Joint Case Management Statement in advance of the June 12, 2009 Case Management Conference. DESCRIPTION OF SUBSEQUENT DEVELOPMENTS An initial Case Management Conference was held on January 23, 2009. Subsequently, the Court ordered a further Case Management Conference for April 3, 2009. In light of the hearing for Savage's Motion to Dismiss being continued to April 17, 2009, the Parties stipulated to continue the April 3 Conference to April 17. The Parties filed a Supplemental Joint Case Management Statement on April 7, 2009. Docket No. 60. The Court denied Savage's Motion to Dismiss on April 15, 2009 and at that time continued the April 17 Case Management Conference to June 12, 2009. 1. Since the last case management statement was filed by the Parties, the

following progress or changes have occurred: A. Pending Motions

The only motion currently on calendar is Brave New Films' Motion for Partial Summary Judgment. Opposition and Reply briefs have been filed and served and the hearing is scheduled for June 12, 2009. See Docket Nos. 83, 87 and 89. OTRN and Savage have filed Motions for Summary Judgment ("Motions"). Docket Nos. 43 and 74. In light of comments concerning continuance of the Motions in Judge Illston's May 18, 2009 Order denying OTRN's Motion For Supplemental Protective Order, the Parties stipulated to take the Motions off calendar and reset them at a later date pursuant to all applicable rules. Docket Nos. 81 and 82. B. Anticipated Motions

To date, Brave New Films has only moved for summary judgment on its declaratory relief claim. It may file a dispositive motion on its 17 U.S.C. § 512(f) misrepresentation claim once adequate discovery has occurred. Brave New Films also 1
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anticipates that motions to compel may be necessary. As implied above, OTRN and Savage anticipate resetting the Motions. C. Discovery

On February 10, 2009, Brave New Films served its first set of Requests for Admissions, Requests for Production of Documents, and Interrogatories on both Defendants. The Parties stipulated to a general protective order on March 30, 2009. Docket No. 57. OTRN subsequently filed a Motion for Supplemental Protective Order on April 10, 2009, which Savage joined on May 8, 2009. Docket Nos. 63 and 78. The Court denied Defendants' Motion for Supplemental Protective Order on May 18, 2009, subject to certain limitations (the "Court's SPO Order") and ordered responsive documents to be produced in accordance with the Court's SPO Order within fourteen days of the Order. Docket No. 81. Following the Court's SPO Order, the Parties met and conferred on May 19, 2009 to discuss Brave New Films' outstanding discovery issues. The Parties had met and conferred on March 17 and April 24 for the same purpose. On May 21, 2009, Brave New Films' counsel wrote OTRN and Savage detailing all the outstanding discovery issues and requesting complete and adequate supplemental responses no later than June 1, 2009, the date set by the Court for response to Request For Production No. 1. On June 1, 2009, counsel for Savage called and advised Brave New Films that Defendants would be sending documents by Federal Express that day for a June 2, 2009 delivery. On June 2, 2009, Brave New Films received a document, the document that Defendants felt was the principal document at issue in the motion for a supplemental protective order, along with a letter from counsel for OTRN stating that the full document production was delayed, at least in part, because Mr. Severaid's mother had been hospitalized, but that additional documents were forthcoming. Counsel also advised that they would be addressing Brave New Films' May 21 letter regarding outstanding discovery issues after the additional documents were sent pursuant to the Court's SPO Order. Defendants subsequently sent three additional packages of documents via Federal Express to Brave New Films, producing, in the aggregate, substantial numbers of documents. 2
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Defendants represent that additional documents will be sent by Federal Express today, the date of this filing. Defendants further advise that their responses to the May 21 letter will be impacted by the extent of the documents produced pursuant to the Court's SPO Order. Brave New Films requested privilege logs from Defendants on April 24, 28 and 30, 2009. Defendants responded on April 30, 2009, that they would provide them the following week. In its May 21, 2009 letter, Brave New Films requested that detailed privilege logs be produced by June 1, 2009. Defendants note that they have elected to waive privilege as to various documents in the course of producing documents in response to the Court's SPO Order and that upon completing any further responses in response to Brave New Films' May 21, 2009 letter, Defendants will produce privilege logs with respect to any documents as to which they still claim privilege. Brave New Films has requested deposition dates for Savage, Shapiro, Severaid and Glahn. Shapiro has provided Brave New Films with dates. Severaid advised that dates for himself and Glahn are forthcoming. Brave New Films also intends to issue deposition subpoenas to one or more third parties. Defendants, at present, continue to reserve at least the majority of their discovery until their dispositive motions are heard and determined, but may commence some discovery before that time given additional time will pass prior to that point. Brave New Films disagrees with this approach. The Parties have scheduled a meet and confer for June 10, 2009 to further discuss discovery issues. D. Trial

Because the Court's ruling on the pending motions may affect the disposition of the case, the Parties propose postponing the setting of binding dates for trial and related pretrial dates until the next Case Management Conference.

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2.

The Parties jointly request the Court to make the following

Supplemental Case Management Order: The Parties request a further Case Management Conference be held in eight to ten

Dated: June 5, 2009

By:

/s/ William F. Abrams William F. Abrams Attorney for Plaintiff Brave New Films 501(c)(4)

Dated: June 5, 2009

By:

/s/ Benjamin Aaron Shapiro Benjamin Aaron Shapiro Attorney for Defendant The Original Talk Radio Network, Inc. and Defendant Michael Weiner /s/ Ronald H. Severaid Ronald H. Severaid Attorney for Defendant The Original Talk Radio Network, Inc.

Dated: June 5, 2009

By:

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CERTIFICATION BY SHEILA M. PIERCE PURSUANT TO GENERAL ORDER NO. 45, SECTION X. RE E-FILING ON BEHALF OF MULTIPLE SIGNATORIES 1. I am a lawyer licensed to practice law in the State of California, and am an

associate in the law firm of Bingham McCutchen LLP, counsel for Plaintiff Brave New Films 501(c)(4). The statements herein are made on my personal knowledge, and if called as a witness I could and would testify thereto. 2. The above e-filed document contains multiple signatures. I declare that

concurrence has been obtained from each of the other signatories to file this jointly prepared document with the Court. Pursuant to General Rule No. 45, I shall maintain records to support this concurrence for subsequent production for the Court if so ordered, or for inspection upon request by a party until one year after final resolution of the action (including appeal, if any). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct on June 5, 2009.

/s/ Sheila M. Pierce Sheila M. Pierce

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