Rocky Mountain Bank -v- Google, Inc.

Filing 40

MOTION to Intervene filed by MediaPost Communications. Motion Hearing set for 12/7/2009 09:00 AM in Courtroom 8, 4th Floor, San Jose. (Craven-Green, Erica) (Filed on 10/20/2009)

Rocky Mountain Bank -v- Google, Inc.

Doc. 40

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ERICA L. CRAVEN-GREEN (Bar No. 199918) Email: [e-mail] Law Offices of Erica L. Craven-Green P.O. Box 460367 San Francisco, California 94146-0367 Telephone: [phone] PAUL ALAN LEVY, pro hac vice to be sought Email: [e-mail] DEEPAK GUPTA Email: [e-mail] Public Citizen Litigation Group 1600 20th Street, NW Washington, DC 20009 Telephone: [phone] Facsimile: [phone] Attorneys for MediaPost Communications UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ROCKY MOUNTAIN BANK, a Wyoming Corporation, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Case No. 5:09-CV-04385 JW MOTION FOR LEAVE TO INTERVENE AND MEMORANDUM SUPPORTING MOTION FOR LEAVE TO INTERVENE Fed. R. Civ. P. 24(b) Date: December 7, 2009 Time: 9 AM Courtroom: Courtroom 8, 4th floor Judge Ware

v.

GOOGLE INC., a Delaware corporation, Defendant.

NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE TO ALL PARTIES AND THEIR COUNSEL OF RECORD: Please take notice that, on Monday, December 7, at 9 AM, or as soon thereafter as the matter may be heard by this Court, located at 280 South 1st Street, San Jose, California, MediaPost Communications will move and hereby does move the Court, pursuant to Rule 24 of the Federal Rules of Civil Procedure, for leave to intervene for the limited purpose of seeking public disclosure of the report lodged by Google with the Court in chambers explaining its compliance with the Temporary Restraining Order entered by this Court on September 23, 2009. The report is a judicial record and thus subject to the strong presumption of public access, and movant wants to see the document for the

No. 5:09-CV-04385-JW, MEMORANDUM SUPPORTING MOTION TO INTERVENE

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purpose of continuing to report on this case. This motion seeks the following relief -- an order granting movant leave to intervene for the limited purpose of filing the motion to unseal that is being filed simultaneously with this motion. MEMORANDUM OF POINTS AND AUTHORITIES Pursuant to Rule 24 of the Federal Rules of Civil Procedure, MediaPost Communications has moved the Court for leave to intervene for the limited purpose of seeking public disclosure of the report lodged by defendant Google with the Court in chambers explaining Google's compliance with the Temporary Restraining Order, for the following reasons: 1. MediaPost Communications, the business name of Fadner Media Enterprises, LLC, is an integrated publishing and content company whose mission is to provide a complete array of resources for media, marketing and advertising professionals. MediaPost is the holding company for the following entities: MediaPost.com, the OMMA conferences (holding more than twenty-five events per year), Publications.MediaPost.com, OMMA & MEDIA Magazines, and a suite of more than forty industry-focused eNewsletters & blogs. One of its publications, Online Media Daily, carried the first report about the Court's order granting plaintiff's request for a TRO and ordering the Gmail user's account deactivated, and published several stories about this case. 2. MediaPost Communications seeks to assert its right under Rules 5(d) and (e) of the Federal Rules of Civil Procedure, under the First Amendment, and under the common law presumption that judicial records will be available for public scrutiny to review the report that Google lodged with the Court in chambers explaining its compliance with the Temporary Restraining Order. 3. "Nonparties seeking access to a judicial record in a civil case may do so by seeking permissive intervention under Rule 24(b)(2)." San Jose Mercury News v. United States District Court, 187 F. 3d 1096, 1102 (9th Cir. 1999) (granting mandamus and reversing denial of motion for leave to intervene). Accord Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1120-1130 (9th Cir. 2003) (court of appeals had jurisdiction to consider appeal of parties who intervened to seek unsealing of judicial records); In re Associated Press, 162 F.3d 503, 506-509 (7th Cir. 1998) ("the most appropriate procedural mechanism [for third parties to obtain access to court proceedings and -2No. 5:09-CV-04385-JW, MEMORANDUM SUPPORTING MOTION TO INTERVENE

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documents] is by permitting those who oppose the suppression of the material to intervene for that limited purpose."). CONCLUSION The motion for leave to intervene should be granted. Respectfully submitted, /s/ Erica L. Craven-Green Erica L. Craven-Green (Bar No. 199918) Email: [e-mail] Law Offices of Erica L. Craven-Green P.O. Box 460367 San Francisco, California 94146-0367 Telephone: [phone] /s/ Paul Alan Levy Paul Alan Levy (DC Bar No. 946400) Deepak Gupta (DC Bar No. 495451) Public Citizen Litigation Group Email: [e-mail] 1600 - 20th Street, N.W. Washington, D.C. 20009 Telephone: [phone] Facsimile: [phone] October 20, 2009 Attorneys for MediaPost Communications

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