FreecycleSunnyvale v. The Freecycle Network

Filing 123

Reply to Opposition re 101 MOTION to Strike filed byThe Freecycle Network. (Kobialka, Lisa) (Filed on 9/19/2007)

FreecycleSunnyvale v. The Freecycle Network

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PAUL J. ANDRE, Bar No. 196585 ([e-mail]) LISA KOBIALKA, Bar No. 191404 ([e-mail]) ESHA BANDYOPADHYAY, Bar. No. 212249 ([e-mail]) SEAN M. BOYLE, Bar No. 238128 ([e-mail]) PERKINS COIE LLP 101 Jefferson Drive Menlo Park, CA 94025 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant The Freecycle Network, Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

FREECYCLESUNNYVALE, a California unincorporated association, Plaintiff, v. THE FREECYCLE NETWORK, INC., an Arizona corporation, Defendant. THE FREECYCLE NETWORK, INC. an Arizona corporation, Counterclaimant, v. FREECYLESUNNYVALE, a California unincorporated association, Counterdefendant.

CASE NO. C 06-00324 CW THE FREECYCLE NETWORK, INC.'S REPLY TO FREECYCLESUNNYVALE'S OPPOSITION TO MOTION TO STRIKE UNDER F.R.C.P. 37(c) Date: Time: Before: Location: September 27, 2007 2:00 p.m. Honorable Claudia Wilken Courtroom 2

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I.

INTRODUCTION

Plaintiff FreecycleSunnyvale ("Plaintiff") ironically accuses defendant The Freecycle Network Inc.'s ("The Freecycle Network") Motion to Strike Under F.R.C.P. 37(c) ("Motion") of being an "act of pure gamesmanship." However, it is Plaintiff that has been playing games from the start by 1) failing to fully disclose each of its witnesses, as required by the Federal Rules of Civil Procedure, 2) persuading The Freecycle Network into a stipulation precluding the deposition of an undisclosed witness, 3) ambushing The Freecycle Network by filing a premature motion for summary adjudication ("MSJ") with an accompanying declaration from Miles Dennis Robertson, Jr., a witness Plaintiff had never previously identified during fact discovery, and 4) remaining uncooperative in The Freecycle Network's attempts to depose this witness, including misleading The Freecycle Network into believing that Plaintiff's counsel represented the witness. And, this does not even address the fact that Plaintiff produced over 60,000 pages of documents in a supplemental document production, well after it filed its MSJ and just prior to The Freecycle Network's deadline to submit its opposition to the MSJ, as well as after the discovery cutoff. Plaintiff's actions have forced The Freecycle Network to file the instant Motion as The Freecycle Network has not had an adequate opportunity to depose Mr. Robertson before it filed its opposition to Plaintiff's MSJ. Moreover, Plaintiff has not met its burden of proof of showing "substantial justification" for its failure to disclose Mr. Robertson or that the failure was harmless. As a result, pursuant to Federal Rule of Civil Procedure 37(c), The Freecycle Network respectfully requests the Court to strike the declaration of Miles Dennis Robertson, Jr. filed in support of Plaintiff's MSJ and allow The Freecycle Network the opportunity to amend its opposition to the MSJ should such an amendment be necessary. II. ARGUMENT

Plaintiff Has Failed to Meet its Burden of Showing Substantial Justification or Harmlessness for Failing to Disclose a Key Witness It is well-established that failure to comply with the disclosure requirements of the Federal

Rules of Civil Procedure will result in the exclusion of that evidence unless the failing party shows that there was substantial justification for the failure or that the failure was harmless.
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Fed.R.Civ.Proc. 37(c); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Plaintiff has neither established that it was justified in failing to identify Mr. Robertson during the discovery period, nor has it established that the failure was harmless. Failing to identify a witness prior to the close of discovery that Plaintiff is relying upon in a summary judgment motion, after entering into a stipulation precluding The Freecycle Network from taking this witness's deposition, does not satisfy Plaintiff's burden in this case. As a result, Plaintiff should not benefit from its behavior. B. Mr. Robertson Was a Surprise Witness Plaintiff claims that The Freecycle Network had a "long and intimate knowledge" of Mr. Robertson. However, such a statement is clearly an exaggeration as Plaintiff admits that Mr. Robertson was not disclosed until it filed its MSJ. Indeed, Mr. Robertson is nothing more than one of hundreds of thousands of individuals who have volunteered for The Freecycle Network since its inception. As such, the broad generalization that The Freecycle Network may know of Mr. Robertson can hardly be considered sufficient support for Plaintiff's erroneous conclusion that The Freecycle Network should have anticipated Plaintiff's reliance on this witness. As such, Plaintiff is improperly attempting to shift the burden on The Freecycle Network to somehow guess who Plaintiff intends to use as witnesses to support its case. Despite Plaintiff's assertions to the contrary, it is Plaintiff who has the burden of identifying the witnesses it believes to have relevant information and specifying the nature of that relevant information. Fed. R. Civ. Proc. 26. Plaintiff simply cannot unfairly surprise The Freecycle Network with a declaration of a witness it failed to disclose earlier. As a result, Mr. Robertson is a surprise witness that will severely prejudice The Freecycle Network if the Court does not strike his declaration. Plaintiff's reliance on Coleman is misguided as Plaintiff forgets that it has the burden to show that there was "substantial justification" for failing to produce the name of the witness or that the failure was harmless. Fed.R.Civ.Proc. 37(c); see also Coleman v. Keebler Co., 997 F. Supp. 1102, 1107 (N.D. Ind. 1998). In Coleman, the court found that the plaintiff did not violate Fed.R.Civ.Proc. 26(a) because she was not made aware of the affiant's existence until after her initial disclosures and after responding to discovery requests. Id. Further, the defendant became
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fully aware of the affiants' existence, at the latest, when plaintiff brought them to defendant's attention during a deposition. Id. Finally, the court determined that any prejudice will be ameliorated by allowing the defendant to depose the new witness prior to trial. Id. The court found no prejudice because the "[c]ourt's disposition of the instant summary judgment does not depend upon [the] affidavit." Id. at 1107-08. Unlike the plaintiff in Coleman, Plaintiff never stated that it was unaware of Mr. Robertson's existence before it filed its initial disclosures or discovery responses, and therefore violated its disclosure obligations under Rule 26. Further, even though Plaintiff supplemented its initial disclosures to include Mr. Robertson after The Freecycle Network brought this apparent failure to Plaintiff's attention, Plaintiff still has not attempted to make any showing of "substantial justification" for its failure to identify Mr. Robertson. Unlike Coleman, here, Plaintiff did not disclose Mr. Robertson's identity during any deposition or response to discovery. Instead, Plaintiff only disclosed Mr. Robertson as a declarant when it filed its dispositive motion, and only after it sandbagged The Freecycle Network into a limiting stipulation pertaining to future discovery. Had Plaintiff complied with its obligations under the Federal Rules, The Freecycle Network would have had adequate opportunity to depose Mr. Robertson before Plaintiff filed its MSJ. The harm caused by Plaintiff's failure to disclose Mr. Robertson will not be ameliorated by the nature of the briefing schedule, as The Freecycle Network has already filed its opposition to Plaintiff's MSJ on September 6, 2007. As a result, The Freecycle Network will suffer severe prejudice if Plaintiff is allowed to rely on this key witness in support of its MSJ. In addition, Plaintiff cites Wright for the broad proposition that "when the identity of a witness has been made known to all parties through one party's documents produced in discovery, there is no basis for excluding testimony from that witness." Opposition at 4 (Docket Entry No. 118). However, Plaintiff incorrectly interprets that the Court's decision to allow the testimony of five previously undisclosed witnesses. The Court reached its decision only because "the identities of the five witnesses have been made known to plaintiff during the discovery process in satisfaction of Rule 26(e)(2) . . . and under Rule 37(c)(1)." Wright v. Aargo Security Servs., Inc., 2001 WL 1035139, at *2 (S.D.N.Y. 2001). Specifically, the Court found that
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"plaintiff surely knew through his own experience which of his coworkers were familiar with the duties he performed." Id. As discussed above, Plaintiff's argument that The Freecycle Network had "long and intimate knowledge" of Mr. Robertson merely because his name appeared on some documents produced by The Freecycle Network is untenable. The Freecycle Network produced 82,149 pages in its document production. See Declaration of Lisa Kobialka in Support of Reply to The Freecycle Network's Motion to Strike filed herewith, ¶2. In addition, there are hundreds of thousands of members/users that are identified by The Freecycle Network's documents by virtue of the organization's popularity, as well as members since its inception. Id., ¶3, Exh. A. Suggesting that The Freecycle Network had a "long and intimate knowledge" of any one of these hundreds of thousands of individuals, and should therefore have anticipated that any of these individuals might potentially serve as a witness for Plaintiff is simply ludicrous. Moreover, the fact that The Freecycle Network has met its document production obligations does not give Plaintiff the right to ignore its obligations. As a result, Plaintiff's attempt to shift the burden of "substantial justification" is impermissible and its arguments should be disregarded. C. Plaintiff Did Not Provide an Adequate Opportunity to Depose Mr. Robertson Plaintiff makes the bare assertion that The Freecycle Network made a strategic decision not to depose Mr. Robertson. Such an argument attempts to shift the blame to The Freecycle Network and distracts the Court from the fact that it was Plaintiff who was manipulative and dilatory in failing to comply with the Federal Rules. It was Plaintiff that failed to provide The Freecycle Network with an adequate opportunity to depose Mr. Robertson by first failing to identify Mr. Robertson in its initial disclosures and then failing to identify Mr. Robertson in its discovery responses pursuant to Federal Rules 26 and 37. Further, knowing that it would rely on Mr. Robertson's declaration in its MSJ, Plaintiff failed to supplement its initial disclosures and discovery responses and induced The Freecycle Network to stipulate not to propound any further additional deposition notices. On the very same day, Plaintiff filed its MSJ, attaching the declaration of Mr. Robertson, thereby disclosing him to The Freecycle Network for the first time.

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Moreover, Plaintiff's correspondence offering Mr. Robertson for deposition misled The Freecycle Network as to whether he was represented by counsel. In fact, Plaintiff remained silent even after The Freecycle Network proposed that they be permitted to take the deposition of Mr. Robertson prior to filing The Freecycle Network's opposition to Plaintiff's MSJ. See Declaration of Lisa Kobialka in Support of The Freecycle Network's Motion to Shorten Time ("Kobialka Decl."), ¶¶ 4-5, Ex. 3 (Docket Entry No. 100). It was not until August 31, 2007, that Plaintiff informed The Freecycle Network that its counsel does not represent Mr. Robertson, leaving no time to properly subpoena a third party witness. Declaration of Lisa Kobialka in Support The Freecycle Network's Motion to Strike Under Fed.R.Civ.Proc. 37(c), ¶ 3, Ex. 2 (Docket Entry No. 104). Moreover, Plaintiff makes a circular argument stating that The Freecycle Network produced no facts that dispute Mr. Robertson's declaration. Plaintiff misses the obvious fact that The Freecycle Network simply has not yet had an opportunity to depose Mr. Robertson due to Plaintiff's failure to identify him before filing its MSJ. Such arguments once again attempt to distract the Court from Plaintiff's burden of proof. Despite The Freecycle Network's attempts to meet and confer, the deposition of Mr. Robertson did not go forward because it would have been impossible to complete within the timeframe discussed by the parties. The Freecycle Network made it clear that it was necessary to depose Mr. Robertson before The Freecycle Network had to file its opposition brief. See Kobialka Decl., ¶ 4, Ex. 3 (Docket Entry No. 100). To date, counsel for Plaintiff has not responded to The Freecycle Network's proposal. Id., ¶5. In addition, Plaintiff refused to continue the briefing schedule any further, thereby forcing The Freecycle Network to oppose Plaintiff's MSJ without an adequate opportunity to subpoena and depose Mr. Robertson. Id. Despite The Freecycle Network's attempt to depose Mr. Robertson, Plaintiff's actions, as stated above, precluded the deposition. As such, allowing Plaintiff to rely on Mr. Robertson's deposition would not only be an unfair result, but would severely prejudice The Freecycle Network.

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III.

CONCLUSION

For the foregoing reasons, The Freecycle Network respectfully requests that the Court grant its Motion. Further, The Freecycle Network requests that the Court allow it the opportunity to amend its opposition to Plaintiff's MSJ should such an amendment be necessary.

PERKINS COIE LLP By /s/ Lisa Kobialka___ Paul J. Andre Lisa Kobialka Esha Bandyopadhyay Sean Boyle Attorneys for Defendant THE FREECYCLE NETWORK, INC.

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