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

Filing 52

Memorandum in Opposition re 47 First MOTION to Compel Documents filed byCrunchPad, Inc., Interserve, Inc.. (Scherb, Matthew) (Filed on 4/5/2010)

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101 California Street San Francisco, CA 94111-5894

Andrew P. Bridges (SBN: 122761) [e-mail] David S. Bloch (SBN: 184530) [e-mail] Matthew A. Scherb (SBN: 237461) [e-mail] WINSTON & STRAWN LLP 101 California Street, 39th Floor San Francisco, CA 94111-5802 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs INTERSERVE, INC., dba TECHCRUNCH and CRUNCHPAD, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Winston & Strawn LLP

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INTERSERVE, INC., dba TECHCRUNCH, ) a Delaware corporation, and CRUNCHPAD, ) INC., a Delaware corporation, ) ) Plaintiffs, ) ) vs. ) ) FUSION GARAGE PTE. LTD., a Singapore ) company, ) ) Defendant. ) ) )

Case No. CV-09-5812 RS (PVT) PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRODUCTION Date: May 11, 2010 Time: 10:00 A.M. Place: Courtroom 5, 4th Floor, San Jose (motion to shorten time pending)

Case No. 09-CV-5812 RS (PVT)

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101 California Street San Francisco, CA 94111-5894

Plaintiffs Interserve and CrunchPad (collectively TechCrunch) oppose Defendant's motion to compel as improper and unnecessary. Defendant Fusion Garage seeks immediate production of all documents that TechCrunch have agreed to produce. Ironically, it is Defendant's failure to produce documents and Defendant's delaying tactics--in the face of this Court's previous Order allowing expedited discovery--that should trouble the Court. Plaintiffs have filed a separate motion to compel today to address those issues. Meanwhile, Defendant's motion is both unnecessary and overreaching. The motion is unnecessary because TechCrunch is meeting its production obligations. It is producing the highest priority documents first and expeditiously continuing to process documents for production. TechCrunch already produced several hundred pages of highly relevant documents that were available when Defendant made its request for key documents supporting TechCrunch's case. Core documents are already in Defendant's possession. And even now, TechCrunch is reviewing for production additional materials acquired from TechCrunch's computer systems. TechCrunch expects to be in position to produce all agreed-upon documents for which the custodian is Michael Arrington, TechCrunch's founder and point-person for the CrunchPad project, and TechCrunch's Rule 30(b)(6) designee, by Tuesday, April 6, 2010. It will continue to process the remaining documents in a rolling fashion on a custodian-by-custodian basis. The motion is also overreaching and unduly hurried, because the motion demands complete production of all documents that TechCrunch agreed to produce. TechCrunch and its counsel are expeditiously reviewing and producing documents. Complete production may take several more weeks, perhaps as long as two months. A rolling production that provides the highest priority documents first is reasonable. Fusion Garage's demand for immediate production is preposterous, especially given that the case is in its earliest stage. Though there is a preliminary injunction motion pending and while the Court has granted TechCrunch's request for expedited discovery from Defendant, there has been no Case Management Conference and there is no discovery cut-off date. The pendency of a preliminary injunction motion does not entitle the non-moving party to complete discovery, despite all burdens, on an impossible schedule. In fact, courts routinely rule on preliminary injunctions motions before formal discovery begins: "a court's findings of fact and -1Case No. 09-CV-5812 RS (PVT) PS'. OPP. TO DEF'S. MOT. TO COMPEL PRODUCTION
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Winston & Strawn LLP

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conclusions of law at the preliminary injunction stage are often based on incomplete evidence and a relatively hurried consideration of the issues" as compared to a full trial on the merits. Natural Resources Defense Council v. Pena, 147 F.3d 1012, 1023 (D.C. Cir. 1998); accord Thomas & Betts Corp. v. Panduit Corp., 138 F.3d 277, 292 (7th Cir. 1998) (same); Vision Center Northwest, Inc. v. Vision Value, LLC, 673 F. Supp. 2d 679, 684 (N.D. Ind. 2009); cf. Gerling Global Reinsurance Corp. of America v. Quackenbush, No. 00-0506, 2000 WL 777978, at *1 (E.D. Cal. June 9, 2000) (granting preliminary injunction despite the fact that "discovery is incomplete"). In reality, while TechCrunch is working expeditiously to produce additional documents to Defendant, it is Defendant itself that possesses the most relevant documents in this case--and it still is refusing to produce them, despite this Court's Order directing expedited discovery (Dkt. No. 19). Given that this case concerns the collaboration between TechCrunch and Defendant to create the "CrunchPad," and Defendant's secret plan to usurp the project and sell the product itself as the "JooJoo," falsely presenting a public façade at odds with the sheltered truth, Defendant should already possess copies of all communications between it and TechCrunch and likely has sole possession of all communications concerning its planning for the abrupt decision to abort the shared venture and seize the business opportunity for itself, and the contradiction between its public advertising and its private truth. There is no need for a Court order compelling discovery from TechCrunch on an impossible schedule. Nor should the Court reward Defendant with a one-sided order that entitles only Defendant to immediate document production and the threat of Rule 37 sanctions. The Court should deny the motion outright. Respectfully submitted, Dated: April 5, 2010 WINSTON & STRAWN LLP By: /s/ Andrew P. Bridges David S. Bloch Matthew A. Scherb Attorneys for Plaintiffs -2PS'. OPP. TO DEF'S. MOT. TO COMPEL PRODUCTION
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Winston & Strawn LLP

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Case No. 09-CV-5812 RS (PVT)