Doe I et al v. Cisco Systems, Inc. et al

Filing 48

NOTICE by Doe I, Doe II, Doe III, Doe IV, Doe V, Doe VI, Liu Guifu, Ivy He, Charles Lee, Roe VII, Roe VIII re 39 Notice (Other) Opposition to Notice of Pendency of Related Action or Proceeding (Attachments: # 1 Exhibit A to Opposition)(Boyd, Kathryn) (Filed on 8/4/2011)

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KATHRYN LEE BOYD, ESQ. (SBN 189496)
[e-mail]
RAJIKA L. SHAH, ESQ. (SBN 232994)
[e-mail]
SCHWARCZ, RIMBERG, BOYD & RADER, LLP
6310 San Vicente Boulevard, Suite 360
Los Angeles, CA 90048
Phone: [phone]
Fax: [phone]
TERRI MARSH, ESQ. (pro hac vice)
[e-mail]
BRIAN PIERCE, ESQ. (pro hac vice)
[e-mail]
HUMAN RIGHTS LAW FOUNDATION
1615 L Street, NW, Suite 1100
Washington, D.C. 20036
Phone: [phone]
Fax: [phone]

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Attorneys for PLAINTIFFS
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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

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Case No. 5:11-cv-02449-JF
DOE I, DOE II, Ivy HE, DOE III, DOE IV,
DOE V, DOE VI, ROE VII, Charles LEE,
ROE VIII, and LIU Guifu,
Plaintiffs,

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vs.
CISCO SYSTEMS, INC., John CHAMBERS,
Thomas LAM, Owen CHAN, and DOES 1100,
Defendants.

Assigned to the Honorable Jeremy Fogel,
U.S.D.J.
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ NOTICE OF PENDENCY
OF RELATED ACTION OR PROCEEDING

Action filed: May 19, 2011
Scheduling Conference: August 26, 2011,
10:30am
Courtroom: 3, 5th Floor

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SCHWARCZ, RIMBERG,
BOYD & RADER, LLP
6310 San Vicente Blvd
Los Angeles, CA 90048

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE
OF PENDENCY OF RELATED ACTION OR PROCEEDING

Case No. 5:11-cv-02449-JF

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TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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On May 19, 2011, Doe I, Doe II, Ivy HE, Doe III, Doe IV, Doe V, Doe VI, Roe VII,

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Charles LEE, Roe VIII, and LIU Guifu, (collectively “Plaintiffs”) filed suit against Cisco Systems,

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Inc., John CHAMBERS, Thomas LAM, and Owen CHAN (collectively “Defendants”) in the

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above-captioned case. See Complaint, Docket Entry (“DE”) 1. Defendants in their July 21, 2011

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Notice of Pendency of Related Action or Proceeding (“Notice”) erroneously attempt to

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characterize this suit as “involv[ing] all or a material part of the same subject matter” as that of an

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entirely factually and legally distinguishable case filed on June 6, 2011 in the District of Maryland,

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Daobin et al. v. Cisco Systems et al., Case no. 8:11-cv-01538-PJM.1 Notice, DE 38 at 2:3-4.

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Although the above-captioned case shares some obvious similarities with Daobin, the two cases at

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their core are factually distinct and rely upon different legal theories, and thus are not related.

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Further, coordination of the two cases will not conserve resources or promote efficient

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determination of the action, and would be prejudicial to Plaintiffs.

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Pursuant to Local Rule 3-13, Plaintiffs respectfully oppose the Notice on the grounds that:
1. This Action and Daobin Do Not Call for the Determination of the Same or Substantially

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Related Questions of Law and Fact

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There are a number of significant legal and factual differences between the two

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cases:
First, Plaintiffs, citizens and residents of both the United States and China, are

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Falun Gong practitioners who allege that they suffered gross human rights violations and

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religious persecution at the hands of Public Security officers in China due to Defendants’

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collaboration with the Chinese Communist Party (“CCP”) in the design, supply and

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maintenance of the censorship and surveillance network known as the Golden Shield.

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Complaint, DE 1 at 1:4-16. Defendants’ technology was designed to enable the CCP to

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eavesdrop, tap and intercept communications, identify, track, surveil, apprehend, arrest,

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interrogate and torture Falun Gong practitioners in order to subject them to additional

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SCHWARCZ, RIMBERG,
BOYD & RADER, LLP
6310 San Vicente Blvd
Los Angeles, CA 90048

A copy of the Daobin et al. v. Cisco Systems et al. complaint is attached hereto for the Court’s
convenience as Exhibit A.
-1PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE
OF PENDENCY OF RELATED ACTION OR PROCEEDING

Case No. 5:11-cv-02449-JF

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human rights abuses. Id. Conversely, the Daobin plaintiffs are not Falun Gong members,

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but political activists alleging political persecution at the hands of the Chinese government.

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Daobin Complaint, Exhibit A at 6-7, ¶¶ 14-15. This distinction requires different evidence

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pertaining to different persecutory campaigns in China and involves potentially relevant

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legal distinctions between state actors and non-state actors. See generally id. at 5-7.

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Second, Daobin names a defendant who is not named here, namely Rick Justice,

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Executive Advisor at Cisco Systems, Inc. Allegations against this defendant require proof

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not required in the above-captioned case.

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Third, Plaintiffs brought the instant action as class representatives and will move to certify a

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class of individuals similarly situated – a motion which will involve investigation into numerous

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legal and factual questions. See Complaint, DE 1 at 35:15-17. Daobin does not seek class action

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status and therefore need not enter into any of the certification inquiries required by Fed. R. Civ. P.

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Rule 23. See generally Daobin Complaint, Exhibit A at 5-7.

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Fourth, the two cases raise altogether different federal and state claims, including a number

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of state claims employing different legal standards. Specifically, Plaintiffs allege a violation of 18

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U.S.C. § 2512(1), which prohibits the manufacture and sale of any electronic device knowing or

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having reason to know that the design of the device makes it primarily useful for the purpose of the

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surreptitious interception of wire, oral, or electronic communications. See Complaint, DE 1 at 44-

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45. Plaintiffs also assert state law claims for wrongful death and unfair business practices under

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Cal. Bus. & Prof. Code § 17200 et seq. Id. at 49-51. These claims raise legal issues that are not

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present in Daobin. The Daobin plaintiffs furthermore allege claims for unlawful access to stored

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communications, see Daobin Complaint, Exhibit A at 31-33, and Maryland state law claims for

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negligence and intentional infliction of emotion distress, see id. at 30-31, which are not part of

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Plaintiffs’ complaint.

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Fifth, Daobin involves plaintiffs whose dissident activity and form of surveillance are

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factually distinct from the activity and surveillance of the Plaintiffs in the above-captioned case.

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The Daobin plaintiffs individually enjoyed a much higher profile in China than any of the named

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Plaintiffs here, and were subjected to physical as well as online surveillance. The Plaintiffs in the
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SCHWARCZ, RIMBERG,
BOYD & RADER, LLP
6310 San Vicente Blvd
Los Angeles, CA 90048

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE
OF PENDENCY OF RELATED ACTION OR PROCEEDING

Case No. 5:11-cv-02449-JF

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above-captioned case, on the contrary, were subjected almost exclusively to surveillance of their

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online activity through use of the Golden Shield, until they were subsequently identified, arrested,

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detained and tortured.

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Sixth, the two cases seek different forms of relief. While the Daobin plaintiffs seek

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monetary and declaratory relief only, see id. at 35-36, Plaintiffs here also seek to enjoin Defendants

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from future unlawful activity. Complaint, DE 1 at 52.

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2. Coordination or Transfer of the Cases to the Same District Would Further Expend

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Resources and Prejudice Plaintiffs

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Defendants argue in the Notice that coordination of this case and Daobin would conserve

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resources. Notice at 2:23-24. However, for the reasons given above, coordination of the two cases

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does not make sense for the following reasons: it would not conserve judicial or party resources but

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rather require additional such resources to separately argue and manage the numerous legal and

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factual distinctions, and would likely have the effect of hindering the speedy and efficient

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prosecution of each action. Indeed, Defendants have already requested a stay of Daobin pending the

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outcome of their forthcoming motion to dismiss in this case, and subjecting the Daobin plaintiffs to

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further delay while class certification is decided here would cause further prejudice.

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Additionally, transfer pursuant to 28 U.S.C. § 1407 is not warranted. Coordination and

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transfer would complicate, rather than streamline, the judicial processes of both cases. This case is

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a class action brought by practitioners of Falun Gong who have been subjected to human rights

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violations through online surveillance techniques enabled by implementation of the Golden Shield,

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which Defendants were instrumental in creating. The Daobin plaintiffs are neither Falun Gong

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practitioners nor does their complaint allege that they were identified only through the use of the

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Golden Shield. Accordingly, there are few, if any, common questions and transfer is not

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appropriate.

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SCHWARCZ, RIMBERG,
BOYD & RADER, LLP
6310 San Vicente Blvd
Los Angeles, CA 90048

-3PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE
OF PENDENCY OF RELATED ACTION OR PROCEEDING

Case No. 5:11-cv-02449-JF

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Therefore, for all the reasons listed above, Plaintiffs respectfully oppose the Notice of

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Pendency of Related Action or Proceeding filed by Defendants and request that the Court find that

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Doe 1 et al. and Daobin are not related and are not subject to coordination or transfer.

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DATED: August 4, 2011

Respectfully submitted,
SCHWARCZ, RIMBERG, BOYD &
RADER, LLP

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By:

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/s/ K. Lee Boyd
K. Lee Boyd, Esq.
Attorneys for Plaintiffs

HUMAN RIGHTS LAW FOUNDATION

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By:

/s/ Terri E. Marsh
Terri E. Marsh, Esq.
Attorneys for Plaintiffs (pro hac vice)

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SCHWARCZ, RIMBERG,
BOYD & RADER, LLP
6310 San Vicente Blvd
Los Angeles, CA 90048

-4PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE
OF PENDENCY OF RELATED ACTION OR PROCEEDING

Case No. 5:11-cv-02449-JF