Cats and Dogs Animal Hospital, Inc. v. Yelp! Inc.

Filing 75

Memorandum in Opposition re 66 Emergency MOTION to Shorten Time Relating to Motion to Compel 30(b)(6) Deposition on Monday, June 21, 2010, and Motion for SanctionsEmergency MOTION to Shorten Time Relating to Motion to Compel 30(b)(6) Deposition on Monday, June 21, 2010, and Motion for SanctionsEmergency MOTION to Shorten Time Relating to Motion to Compel 30(b)(6) Deposition on Monday, June 21, 2010, and Motion for Sanctions /Opposition to to Amended Notice of Motion to Compel (Docket No. 69) filed byYelp! Inc.. (Attachments: # 1 Declaration of M. Brown, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Brown, Matthew) (Filed on 7/6/2010)

Cats and Dogs Animal Hospital, Inc. v. Yelp! Inc.

Doc. 75 Att. 1

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COOLEY LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

COOLEY LLP MICHAEL G. RHODES (116127) ([e-mail]) MATTHEW D. BROWN (196972) ([e-mail]) BENJAMIN H. KLEINE (257225) ([e-mail]) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: [phone] Fax: [phone] Attorneys for Defendant YELP! INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

CATS AND DOGS ANIMAL HOSPITAL, INC.,et al., on behalf of itself and all others similarly situated, Plaintiffs, v. YELP! INC., Defendant.

No. CV 10-02351 MHP DECLARATION OF MATTHEW D. BROWN IN SUPPORT OF DEFENDANT YELP! INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND MOTION FOR SANCTIONS Date: Time: Judge: Trial Date: July 19, 2010 2:00 p.m. Honorable Marilyn Hall Patel None Set

I, Matthew D. Brown, hereby declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am a

partner with the firm of Cooley LLP, counsel of record for Defendant Yelp! Inc. ("Yelp") in the above-entitled action. I have personal knowledge of the facts set forth herein, except where otherwise stated, and, if called as a witness, I could and would competently testify thereto. 2. Yelp served Plaintiffs' counsel with formal objections to their 30(b)(6) deposition

notice by email on June 15 at 6:57 p.m. PST. On June 16 at 1:19 a.m. PST (though I did not read it until much later), Plaintiffs' counsel, Jared Beck, emailed me and threatened to move for sanctions against Yelp if Yelp did not agree to the proposed June 21 deposition date. (Declaration of Jared Beck ("Beck Decl.") Ex. F.) Without waiting for a response, a different Plaintiffs' counsel, Jack Fitzgerald, emailed me at 4:25 p.m. PST that same day, stating Plaintiffs' 1.
DECL. OF M. BROWN ISO YELP'S OPP. TO MTN. TO COMPEL & MTN. FOR SANCTIONS CASE NO. CV 10-02351 MHP

Dockets.Justia.com

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COOLEY LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

intent to file a motion to compel and giving me two hours in which to take a position on stipulating to shortened time for the hearing of the motion. Plaintiffs' counsel did not offer any response to Yelp's grounds for why the deposition is premature, nor did they offer to discuss any of the underlying objections on individual topics. Attached as Exhibit A is a true and correct copy of the email sent from Jack Fitzgerald to me on June 16 at 4:25 p.m. PST. 3. I replied to Plaintiffs' first email at 4:27 p.m. PST, well within standard business

hours in California, where Yelp's counsel and this action are located. In my reply email, I reiterated my concerns with holding the deposition prior to the hearing on consolidation, and, again, offered to meet and confer. (Beck Decl. Ex. G.) 4. Yelp never agreed to the June 21 date, which was unilaterally set by Plaintiffs'

deposition notice without any prior meet and confer. 5. In the parties' calls and correspondence over the weeks after the deposition notice

was served, Plaintiffs themselves never once raised the issue of the deposition, the location, the topics to be covered, the number of witnesses to be deposed, or the date or dates on which they might proceed. 6. Attached as Exhibit B is a true and correct copy of the Docket Report from a case

currently in the Northern District of California, before Judge Ware, entitled Red v. Unilever United States, Inc., Case No. 10 CV 00387 JW ("Red"), which lists Plaintiffs' counsel, shows Judge Ware's May 21 order setting the motion to dismiss hearing date for June 21, 2010, at 9:00 a.m., and shows the May 23 formal notice of appearance of Elizabeth Lee Beck. (See Ex. B, Docket Nos. 62 and 63.) 7. Attached as Exhibit C is a true and correct copy of the Civil Minutes entered by

the Court in the Red action after the hearing held June 21, 2010 at 9:00 a.m., which states that Elizabeth Beck appeared on behalf of Plaintiffs. 8. Attached as Exhibit D is a true and correct copy of a Help Page printed on June 17

from JetBlue's website entitled, "Changes, Cancellations, and Standby Guidelines," which explains that "JetBlue Nonrefundable Fares, changes or cancellations may be made prior to scheduled departure for a fee of $100 per person plus any applicable difference in airfare." 2.
DECL. OF M. BROWN ISO YELP'S OPP. TO MTN. TO COMPEL & MTN. FOR SANCTIONS CASE NO. CV 10-02351 MHP

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COOLEY LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 6th day of July 2010 at San Francisco, California. ___/s/ Matthew D. Brown__ Matthew D. Brown

3.

DECL. OF M. BROWN ISO YELP'S OPP. TO MTN. TO COMPEL & MTN. FOR SANCTIONS CASE NO. CV 10-02351 MHP