Interserve, Inc. et al v. Fusion Garage PTE. LTD

Filing 143

Reply Memorandum In Support Of Fusion Garage's Further Challenges To Confidentiality Designations From Transcript Of Techcrunch 30(B)(6) Deposition filed byFusion Garage PTE. LTD. (Pennypacker, Evette) (Filed on 5/25/2010)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Claude M. Stern (Bar No. 96737) 2 [e-mail] Evette D. Pennypacker (Bar No. 203515) 3 [e-mail] 555 Twin Dolphin Dr., 5th floor 4 Redwood Shores, CA 94065 Telephone: [phone] Facsimile: [phone] Joshua L. Sohn (Bar No. 250105) [e-mail] 7 Sam S. Stake (Bar No. 257916) [e-mail] 8 50 California Street, 22nd Floor San Francisco, California 94111 9 Telephone: [phone] Facsimile: [phone] 10 Attorneys for Defendant Fusion Garage PTE Ltd. 11 12 13 14 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 6

INTERSERVE, INC. dba TECHCRUNCH, a 16 Delaware corporation, and CRUNCHPAD, INC., a Delaware corporation, 17 Plaintiffs, 18 vs. 19 FUSION GARAGE PTE LTD., a Singapore 20 company, 21 22 23 24 25 26 27 28
04049.51632/3510331.2

CASE NO. C 09-cv-5812 RS (PVT) REPLY IN SUPPORT OF FUSION GARAGE'S FURTHER CHALLENGES TO CONFIDENTIALITY DESIGNATIONS FROM TRANSCRIPT OF TECHCRUNCH 30(B)(6) DEPOSITION

Defendant.

Case No. 09-cv-5812 RS (PVT) REPLY IN SUPPORT OF CONFIDENTIALITY CHALLENGES

1

Plaintiffs' effort to keep embarrassing communications with its contractor out of the public

2 record is tardy, unjustified, and should be rejected. First, at the May 13 preliminary injunction and 3 motion to dismiss hearing, Judge Seeborg admonished both parties that they were taking 4 overbroad confidentiality positions and requested that they work to de-designate as many materials 5 as possible. (Pennypacker Decl., Ex. A (Hearing Tr.) at 4:24-5:22). Plaintiffs' efforts to keep these 6 communications confidential flies in the face of Judge Seeborg's instructions to the parties. 7 Next, Plaintiff has already allowed these communications to become part of the public

8 record. Plaintiffs identified this contractor and discussed his activities in their non-confidential 9 Supplemental Responses to Fusion Garage's First Set of Interrogatories. (Pennypacker Decl., Ex. 10 B at 11). Moreover, the very communications that are the subject of this objection were discussed 11 on the record at the May 13 hearing before Judge Seeborg. (Pennypacker Decl., Ex. A (Hearing 12 Tr.) at 34:6-15). Pursuant to the Minute Order governing the Hearing Transcript (Dkt. 139), any 13 redactions to the Hearing Transcript must be requested by May 24, 2010. Plaintiffs never sought 14 to redact the on-the-record colloquy about its communications with its contractor. Thus, Plaintiffs 15 have waived any confidentiality that might have attached to these communications. 16 Further, these communications simply do not qualify for protection under Rule 26(c) or the

17 Protective Order. As discussed in Fusion Garage's Notice of Confidentiality Challenges (Dkt. 18 122), the mere fact that a communication might be embarrassing to a party is insufficient to shield 19 that communication from the public. Apparently conceding this point, Plaintiffs now argue that 20 they "do not seek a confidentiality designation based on embarrassment" but rather "only seek to 21 protect the independent contractor's privacy." (Opp. Br. at 1). Plaintiffs then cite a string of cases 22 holding that employee personnel files may be kept confidential and sealed. Id. These cases are 23 inapposite, since the personnel files of Plaintiffs' contractor are not at issue. What is at issue is a 24 series of embarrassing emails between the contractor and TechCrunch executive Michael 25 Arrington, in which the contractor proposed certain potentially unethical business actions. 26 Plaintiffs' argument that putting these emails in the public record would violate the contractor's 27 "privacy" is akin to saying that no emails between a company's employees or contractors may 28
04049.51632/3510331.2

Case No. 09-cv-5812 RS (PVT) -1REPLY IN SUPPORT OF CONFIDENTIALITY CHALLENGES

1 ever be made public. This position obviously finds no support in Rule 26(c), the Protective Order, 2 or any other source of authority. 3 Indeed, Plaintiff's own actions in this case do not support its position on this issue.

4 Plaintiffs recently filed a motion to remove the Confidentiality designation from several Fusion 5 Garage documents, which include: (1) Fusion Garage's communications with one of its investors, 6 Bruce Lee; and (2) Fusion Garage's communications with its outside PR firm, McGrath/Power 7 Public Relations. (Dkt. 133). Plaintiffs apparently believe that they can force Fusion Garage's 8 communications with McGrath/Power and other third parties into the public record while 9 shielding its own communications with its own contractor behind a confidentiality designation. 10 This position is unsupportable and should not be facilitated. 11 For the foregoing reasons, Fusion Garage respectfully requests that the "Confidential"

12 designation be removed from pages 261:18-276:6; 373:10-375:5; 388:18-390:12 and Exhibits 913 10 of the Rule 30(b)(6) transcript. 14 15 DATED: May 25, 2010 16 17 18 19 20 21 22 23 24 25 26 27 28
04049.51632/3510331.2

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/ Evette D. Pennypacker Evette D. Pennypacker Attorneys for Defendant Fusion Garage PTE Ltd.

Case No. 09-cv-5812 RS (PVT) -2REPLY IN SUPPORT OF CONFIDENTIALITY CHALLENGES