Shloss v. Sweeney et al

Filing 85

Response re 81 Objection to Exhibits A, B, J and Q to the Declaration of David S. Olson byCarol Loeb Shloss. (Olson, David) (Filed on 5/21/2007)

Shloss v. Sweeney et al

Doc. 85

Case 5:06-cv-03718-JW

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Lawrence Lessig Anthony T. Falzone (SBN 190845) David S. Olson (SBN 231675) STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Mark A. Lemley (SBN 155830) Matthew M. Werdegar (SBN 200470) Dorothy McLaughlin (SBN 229453) KEKER & VAN NEST LLP 710 Sansome Street San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Bernard A. Burk (SBN 118083) Robert Spoo (pro hac vice) HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN, P.C. Three Embarcadero Center, 7th Floor San Francisco, California 94111-4024 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

CAROL LOEB SHLOSS, Plaintiff, v.

CASE NO. CV 06-3718 (JW) (HRL) PLAINTIFF'S RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS TO EXHIBITS A, B, J, AND Q TO THE DECLARATION OF DAVID S. OLSON Date: Time: Judge: June 4, 2007 9:00 a.m. Hon. James Ware

SEÁN SWEENEY, in his capacity as trustee of the Estate of James Joyce, and THE ESTATE OF JAMES JOYCE, Defendants.

RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS
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Plaintiff Carol Loeb Shloss ("Shloss") respectfully submits this response to Defendants' Evidentiary Objections to Exhibits A, B, J, and Q to the Declaration of David S. Olson ("Objections").

EXHIBIT A 1. Exhibit A to the Declaration of David S. Olson in Support of Plaintiff's

Motion for Award of Attorney's Fees (hereafter, the "Olson Declaration") is a copy of the declaration that Shloss submitted in support of her opposition to Defendants' unsuccessful motion to dismiss this action for lack of subject matter jurisdiction. Here, Defendants object to "portions" of that Shloss declaration, but do not specify the "portions" to which they object. Nor do they offer any specific objections. Instead, they ambiguously incorporate by reference objections they made previously. Accordingly, Defendants' objections should be overruled for lack of specificity. To the extent Defendants are relying on the same challenges regarding supposed speculativeness and lack of personal knowledge, Shloss hereby incorporates paragraphs 1-9 of her Responses to Defendants' Original Objections (hereafter, collectively, "Original Responses").

EXHIBIT B 2. Exhibit B to the Olson Declaration is a 2006 article from the New Yorker

magazine detailing Stephen James Joyce's active hostility toward Joyce scholarship, as well as the lawsuits and threats of lawsuits by Defendants against Joyce scholars and others. Defendants object to certain "statements" in this article on hearsay grounds but again do not specify the statements to which they object. Accordingly, Defendants' objection should be denied for lack of specificity. The most relevant of the statements contained in the New Yorker article are those by Mr. Joyce, notably those condemning Joyce scholars as "rats and lice" that should be "exterminated" and asserting a determination to protect the "privacy" of Joyce family members, living and deceased, by opposing the efforts of scholars. These statements by Mr. Joyce are directly relevant to and contradictory of positions taken by Defendants in this lawsuit and in their 1
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Opposition to the present fee motion, and are non-hearsay party admissions under Federal Rule of Evidence 801(d)(2). The statements in the New Yorker article are also offered for the nonhearsay purpose of demonstrating Defendants' state of mind, namely their anti-scholarly motivations and unreasonableness leading up to and continuing throughout this litigation-- factors that are relevant to the Court's discretionary analysis under Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).

EXHIBIT J 3. Exhibit J to the Olson Declaration is an article from the Irish Times

containing, among other things, statements by Stephen James Joyce acknowledging that he refused to permit a young Irish composer to use a few words from James Joyce's work Finnegans Wake in a choral piece. These statements are admissible for the reasons set forth in paragraph 2 above.

EXHIBIT Q 4. Exhibit Q to the Olson Declaration is a copy of the declaration that David

Olson submitted in opposition to Defendants' unsuccessful motion to dismiss. Here, Defendants object to "portions" of Exhibit Q, but do not specify the "portions" to which they object. Nor do they offer any specific objections. Instead, they ambiguously incorporate by reference objections they made previously. Accordingly, Defendants' objections should be overruled for lack of specificity. To the extent that Defendants are relying on the same objections they raised in connection with their unsuccessful motion to dismiss, those objections are beside the point here. Defendants' previous objections related to paragraph 7 of the declaration that Mr. Olson submitted in opposition to Defendants' motion to dismiss. The portion of Exhibit Q that is relevant here is paragraph 6 (cited in Shloss's Memorandum of Points and Authorities in Support of Motion for Award of Attorneys' Fees at page 15). Defendants raised no previous objection to that paragraph, and identify no specific objection to it here. In any event, to the extent 2
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Defendants repeat some or all of their previous objections to Exhibit Q, Shloss hereby incorporates by reference her Original Responses here.

/s/ _____________ DAVID S. OLSON

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