FOX TELEVISION STATIONS, INC., et al v. AEREOKILLER LLC, et al

Filing 32

REPLY to opposition to motion re 27 Joint MOTION for Preliminary Injunction MOTION for Hearing filed by ALLBRITTON COMMUNICATIONS COMPANY, AMERICAN BROADCASTING COMPANIES, INC., CBS BROADCASTING, INC.,, CBS STUDIOS, DISNEY ENTERPRISES, INC., FOX BROADCASTING COMPANY, INC., FOX TELEVISION STATIONS, INC., GANNETT CO., INC., NBC STUDIOS LLC, NBC SUBSIDIARY (WRC-TV), LLC, OPEN 4 BUSINESS PRODUCTIONS LLC, TELEMUNDO NETWORK GROUP LLC,, TWENTIETH CENTURY FOX FILM CORPORATION, UNIVERSAL NETWORK TELEVISION LLC. (Attachments: # 1 Response to Evidentiary Objections, # 2 Objections to Request for Judicial Notice)(Smith, Paul)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA

FOX TELEVISION STATIONS, INC., et al.

Civil Action No. 1:13-cv-00758-RMC
Hon. Rosemary M. Collyer

Plaintiffs,
v.
FILMON X, LLC, et al.
Defendants.

PLAINTIFFS’ RESPONSES TO DEFENDANTS’ EVIDENTIARY OBJECTIONS TO
THE DECLARATIONS OF SHERRY BRENNAN AND JULIE SHEPARD IN SUPPORT
OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
Of the nine declarations Plaintiffs1 submitted in support of their Motion for a Preliminary
Injunction, Defendants only objected to portions of the Declarations of Sherry Brennan and Julie
Shepard.2 Plaintiffs hereby respond to those objections.
Defendants’ objections are meritless and should be overruled. First, the objections are
largely arguments that Defendants’ service is legal, not true evidentiary objections. See, e.g.,
Objection to Shepard Decl., ¶ 14 (“Irrelevance … FilmOn X does not require authorization or
licenses from Plaintiffs to provide its legal service to its customers; therefore, the existence of

1

Plaintiffs are Fox Television Stations, Inc., Twentieth Century Fox Film Corporation, Fox
Broadcasting Company, NBC Subsidiary (WRC-TV) LLC, NBC Studios LLC, Universal
Network Television, LLC, Open 4 Business Productions LLC, Telemundo Network Group LLC,
American Broadcasting Companies, Inc., Disney Enterprises, Inc., CBS Broadcasting Inc., CBS
Studios Inc., Allbritton Communications Company, and Gannett Co., Inc.
2

Defendants have submitted no objections to the declarations of the following individuals:
Samuel Bahun, Rebecca Borden, Daniel M. Kummer, William H. Lord, Marsha Reed, Carly
Seabrook, and Barbara W. Wall.

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authorization for the retransmissions of is irrelevant to the issues, claims, and defenses in this
action”); Objection to Brennan Decl., ¶¶ 2-4 (“Irrelevance: The copyright ownership of the
Broadcast Companies and the retransmission agreements they have entered into … are irrelevant
to the claims, issues, and defenses in this case. FilmOn X’s services operate legally.”).
Second, even if Defendants’ objections had merit – and they do not – it is well settled that
“a preliminary injunction is customarily granted on the basis of procedures that are less formal
and evidence that is less than complete than in a trial on the merits.” Univ. of Texas v.
Camenisch, 451 U.S. 390, 395 (1981); Am. Fed’n of Gov’t Emp. v. Dist. of Columbia, 05-0472,
2005 WL 1017877, at *4 (D.D.C. May 2, 2005). The evidentiary rules are relaxed because
courts recognize the difficulties associated with gathering evidence while pressed with the
urgency of a preliminary injunction motion. See Univ. of Texas, 451 U.S. at 395 (“The purpose
of a preliminary injunction is merely to preserve the relative positions of the parties until a trial
on the merits can be held. Given this limited purpose, and given the haste that is often necessary
if those positions are to be preserved, a preliminary injunction” does not require strict adherence
to the formal rules of evidence).
For example, even if it were correct that Paragraph 16 of the Brennan Declaration and
Exhibit D of the Shepard Declaration contain hearsay, Defendants’ objections on this basis lack
merit. Courts in this Circuit “generally permit consideration of hearsay evidence in connection
with preliminary injunction motions.” Holiday CVS, L.L.C. v. Holder, 839 F. Supp. 2d 145, 155
(D.D.C. 2012). Defendants’ hearsay objection to Exhibit D is flatly incorrect as this document is
Defendants’ own press release and, as such, it constitutes a party admission. Fed. R. Ev. 801(d).
Finally, Defendants’ other objections -- relevance, foundation, improper lay opinion,
improper legal conclusion, etc. -- are similarly groundless and insufficiently explained. Ms.

2

Shepard’s and Ms. Brennan’s relevant background and personal experience, as set forth in their
declarations, sufficiently support each of the challenged statements and exhibits, which properly
bear on factual issues directly relevant to Plaintiffs’ Motion for Preliminary Injunction.
For the foregoing reasons, the Court should overrule Defendants’ improper and meritless
evidentiary objections.

Dated: August 23, 2013

Respectfully submitted,

/s/ Paul Smith
Paul Smith (D.C. Bar No. 358870)
[e-mail]
JENNER & BLOCK LLP
1099 New York Avenue, NW, Suite 900
Washington, DC 20001-4412
Telephone: [phone]
Facsimile: [phone]
Richard L. Stone (admitted pro hac)
[e-mail]
Julie A. Shepard (admitted pro hac)
[e-mail]
Amy Gallegos (admitted pro hac)
[e-mail]
JENNER & BLOCK LLP
633 West 5th Street, Suite 3600
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs Fox Television
Stations, Inc., Twentieth Century Fox Film
Corporation, and Fox Broadcasting Company

/s/ Robert Garrett
Robert Alan Garrett (D.C. Bar No. 239681)
Hadrian R. Katz (D.C. Bar No. 931162)
Christopher Scott Morrow

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(D.C. Bar No. 491925)
Murad Hussain (D.C. Bar No. 999278)
ARNOLD & PORTER LLP
555 12th St., NW
Washington, DC 20004
Telephone: [phone]
Facsimile: [phone]
James S. Blackburn (admitted pro hac)
[e-mail]
John C. Ulin (admitted pro hac)
[e-mail]
ARNOLD & PORTER LLP
777 South Figueroa Street, 44th Floor
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs NBC Subsidiary
(WRC-TV) LLC, NBC Studios LLC,
Universal Network Television LLC, Open 4
Business Productions LLC, Telemundo
Network Group LLC, American
Broadcasting Companies, Inc., Disney
Enterprises, Inc., Allbritton
Communications Company, CBS
Broadcasting Inc., CBS Studios Inc., and
Gannett Co., Inc.

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