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

Filing 79

Memorandum in Opposition re 66 MOTION to Unseal Document from Transcript of TechCrunch 30(B)(6) Deposition filed byCrunchPad, Inc., Interserve, Inc.. (Attachments: # 1 Proposed Order)(Scherb, Matthew) (Filed on 4/26/2010)

1 2 3 4 5 6 7 8 9 10 11
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

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PS'. OPP. TO DEF'S. MOT. TO EXPEDITE DESIGNATION
SF:280435.1

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 FOR EXPEDITED DESIGNATION OF TRANSCRIPT OF TECHCRUNCH 30(B)(6) DEPOSITION Date: June 1, 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)

1 2 3 4 5 6 7 8 9 10 11
101 California Street San Francisco, CA 94111-5894

The deposition of TechCrunch's founder, CEO, Editor, and blogger, Michael Arrington, took place on April 20, 2010. Because the deposition touched on a number of confidential topics, including TechCrunch's financials, TechCrunch requested that the transcript provisionally be designated "Highly Confidential" under the Stipulated Protective Order governing this case, with the understanding that non-confidential portions would be de-designated within 20 days. (Dkt. 35.) This is the efficient and common practice in ligitation, and one that the Stipulated Protective Order specifically contemplates. TechCrunch therefore opposes Defendant's motion, which would force it to provide final confidentiality designations for the deposition transcript of its Rule 30(b)(6) designee on an expedited basis, contrary to the schedule that the parties adopted in the Stipulated Protective Order governing this case. There is no need for expediting final designations. Because the TechCrunch deposition took place on April 20, 2010, final designations are due Monday, May 10, 2010. This is three days before the preliminary injunction hearing and just six days after the May 4, 2010, hearing date that Defendant seeks for this motion. Defendant's counsel will be able to share non-AEO portions of the transcript with its client and receive meaningful input and feedback for the hearing. Oddly, Defendant's only other argument for why it needs rapid de-designation of the transcript is its desire to file its preliminary injunction opposition brief publicly. Perhaps the parties could have agreed, if Defendant had identified what portions of the deposition it wished to cite. But it has made no effort to do so, and it has already filed its brief, which was due today, Monday, April 26, 2010. So resolving this motion on Defendant's preferred date of May 4 offers no help. TechCrunch shares Defendant's goal of keeping the Court record as public and open as possible. But rather than springing half-baked, resource-wasting motions with shoddy or nonexistent meet-and-confer efforts, TechCrunch instead will be requesting that Defendant de-designate a discrete, identified materials that it has produced under the Stipulated Protective Order for inclusion in its briefing. TechCrunch would gladly consider similar requests from Defendant. It is particularly ironic that Defendant now asks the Court to set aside the procedures set forth in the Stipulated Protective Order. Defendant's counsel, during discussions at the deposition about -1PS'. OPP. TO DEF'S. MOT. TO EXPEDITE DESIGNATION
SF:280435.1

Winston & Strawn LLP

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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

1 2 3 4 5 6 7 8 9 10 11
101 California Street San Francisco, CA 94111-5894

confidentiality of the transcript, stated brusquely that counsel would "comply with the protective order to the letter with respect to this deposition." As Defendant now concedes, Paragraph 5.2(b) of the Stipulated Protective Order allows provisional designation of an entire transcript as "Confidential" or "Confidential ­ Attorneys' Eyes Only" for a period of 20 days. This gives the deposed party a full and fair opportunity to carefully select appropriate portions for designation. TechCrunch's Rule 30(b)(6) witness has already begun reviewing the 390 pages of testimony, but he is not yet finished. Rather than discuss an alternative designation schedule with TechCrunch, Defendant simply wrote by email on the day after the deposition, April 21, 2010, and demanded de-designation of the entire transcript that very day. TechCrunch's counsel responded that afternoon, informing Defendant of its intention to use Paragraph 5.2(b) and that Defendant's written demand was not the proper "voice-to-voice" conference of counsel that Paragraph 6.2 of the Stipulated Protective Order requires. At no time did Defendant's counsel verbally request immediate de-designation of the entire transcript or verbally discuss an alternate designation schedule. Failure to comply with Paragraph 6.2, and thus also Local Civil Rule 37's meet and confer requirement, is just one procedural defect associated with this motion. Others include: 1. Defendant's failure to file any declaration or stipulation supporting its administrative motion to shorten time. Local Civil Rule 6-3(a) requires filing one or the other. Defendant could file no stipulation, because it made no attempt to even discuss a stipulation with TechCrunch. Defendant chose to omit a declaration, in which it would have had to describe its non-existent efforts to obtain a stipulation or its compliance with Local Civil Rule 37-1(a). 2. Defendant's failure to file any declaration or stipulation supporting its administrative motion to seal. Local Civil Rule 7-11(a), which explicitly applies to sealing motions, requires filing one or the other. Defendant could file no stipulation, because it made no attempt to even discuss a stipulation with -2PS'. OPP. TO DEF'S. MOT. TO EXPEDITE DESIGNATION
SF:280435.1

Winston & Strawn LLP

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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

1 2 3 4 5 6 7 8 9 10 11
101 California Street San Francisco, CA 94111-5894

TechCrunch. Defendant chose to omit a declaration, in which it would have had to describe its non-existent efforts to obtain a stipulation. 3. Failure to file a proposed order with its motion. Defendant rushes to Court without complying with the local rules and seeks, on an expedited basis, the marginal relief described above. It has failed to establish any basis for an expedited hearing. Defendant has established a pattern of picking fights unnecessarily in this case. It has run to court, wasted time, and imposed costs and burdens instead of engaging in level-headed discussions with TechCrunch about the relief it seeks and why. The Court should not reward Defendant's behavior. It should instead deny expedited consideration, deny Defendant's motion, and permit TechCrunch to proceed with designation of its deposition transcript according to the Stipulated Protective Order to which the parties agreed. Respectfully submitted, Dated: April 26, 2010 WINSTON & STRAWN LLP By: /s/ Andrew P. Bridges David S. Bloch Matthew A. Scherb Attorneys for Plaintiffs

Winston & Strawn LLP

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-3PS'. OPP. TO DEF'S. MOT. TO EXPEDITE DESIGNATION
SF:280435.1

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