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

Filing 44

MEET AND CONFER STATEMENT. (Shepard, Julie)

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.

JOINT REPORT OF THE PARTIES PURSUANT TO LOCAL RULE 16.3(C)
Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, Local Rule 16.3(c), and
the Court’s August 6, 2013 minute order setting the Scheduling Conference for September 20,
2013 at 2:00 p.m., plaintiffs 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., Allbritton
Communications Company, CBS Broadcasting Inc., CBS Studios Inc., and Gannett Co., Inc.
(collectively, “Plaintiffs”) and defendants FilmOn X, LLC, FilmOn.TV Networks, Inc.,
FilmOn.TV, Inc., and FilmOn.com, Inc. (collectively, “FilmOn X”) submit this Joint Report
(“Joint Report”).
1. Neutral Statement of Case
In this lawsuit, Plaintiffs assert that FilmOn X’s Internet retransmission service violates
their rights under the Copyright Act. Plaintiffs allege that they have not authorized FilmOn X to
retransmit local over-the-air broadcasts of their copyright programming over the Internet.

1

Plaintiffs have brought claims for copyright infringement. On August 1, 2013, Plaintiffs filed a
motion for a preliminary injunction, which this Court granted on September 5, 2013. Plaintiffs
also seek permanent injunctive relief, as well as statutory and other damages.
FilmOn X denies each of Plaintiffs’ allegations. FilmOn X also denies it is directly or
secondarily infringing Plaintiffs’ copyrights. FilmOn X has asserted various affirmative
defenses including, but not limited to, fair use.
2. Joint Request to Stay Proceedings Pending FilmOn X’s Appeal
On September 5, 2013, this Court granted Plaintiffs’ motion for preliminary injunction.
(Dkt No. 34). On September 12, 2013, this Court denied motions brought by FilmOn X for
reconsideration and a stay of the injunction. FilmOnX intends to appeal. The parties mutually
agree that this case should be stayed before this Court pending a decision from the U.S. Court of
Appeals for the District of Columbia Circuit, and they will be submitting a stipulation regarding
the stay for this Court’s consideration. Accordingly, below, the parties have not provided dates
for the exchange of initial disclosures, dates for the completion of fact and expert discovery, or
dates for trial. The parties do set forth the other matters that were agreed upon during the early
meeting of counsel process.
3. Preservation of Discoverable Information
Counsel have notified their respective clients about their obligations to preserve
discoverable information (documentary and electronic). The parties agree that text messages to
mobile phones (MMS and SMS) and voicemail messages need not be preserved or collected.
4. Discovery Phases
The parties agree they should conduct written, documentary, and deposition fact
discovery, to be followed by expert discovery as permitted by the Federal Rules of Civil

2

Procedure. The parties do not believe discovery should be conducted in any phases other than
fact discovery and expert discovery.
5. Discovery Subject Matter
Without waiver or limitation, Plaintiffs will seek discovery bearing on liability, defenses
and damages, including on the following subjects: (a) FilmOn X’s service; (b) FilmOn X’s
alleged infringement of Plaintiffs’ copyrights; (c) Plaintiffs’ alleged irreparable harm;
(d) FilmOn X’s alleged fair use defense and any of its other defenses; and (e) Plaintiffs’ alleged
statutory damages.
Without waiver or limitation, FilmOn X will seek discovery on the following subjects:
(a) Plaintiffs’ claims and allegations; (b) alleged fair use and other defenses noted in FilmOn X’s
Answer; and (c) Plaintiffs’ allegations of irreparable harm and damages.
6. Coordination with Related Cases
This case is related to Fox Television Stations, Inc., et al. v. FilmOn X, et al., Case No.
CV 12-6921-GW(JCx) (C.D. Cal.) and NBCUniversal Media, LLC, et al. v. Barry Driller, Inc.,
et al., Case No. CV 12-6950-GW(JCx) (C.D. Cal.) (collectively, the “California Actions”). The
California Actions are currently stayed in light of the pending appeal of the injunctions issued in
the California Actions.
The parties agree they will use their best efforts to coordinate the timing of depositions
with the related cases in order to avoid duplicative depositions. However, the parties are not
waiving their rights to each take full and complete depositions as permitted by the Federal Rules
of Civil Procedure. The parties reserve their right to take depositions of the other parties’
witnesses separate from the California Actions, and to apply the limitations on the number and
length of depositions set forth in the Federal Rules separately.

3

7. Electronic Discovery
The parties have agreed to produce electronically stored information in .tif format if
practical or, in the alternative, in .pdf or other format following a meet and confer between
counsel regarding the form of production. The parties reserve the right to request production of
electronically stored information in native or other format, if they reasonably believe that there is
a specific need that cannot otherwise be met. The parties further reserve their rights to request
production of electronically stored information from any data source where relevant information
may be obtained, and to object to production of electronically stored information on any
appropriate ground, including, without limitation, those set forth in Federal Rules of Civil
Procedure, Rule 26(b)(2)(B).
8. Protective Order
The parties agree that it will be necessary for a protective order to be entered in this case
prior to the commencement of discovery. The parties believe that they will be able to work out
the terms of a mutually acceptable protective order.
9. Attorney-Client Privilege and Attorney Work Product
The parties agree on the following procedure:
If a party, through inadvertence, produces any document or information
that it believes is immune from discovery pursuant to the attorney-client
privilege and/or work product doctrine/privilege, such production will not
be deemed a waiver of those privileges, and the producing party may give
written notice to the receiving party that the document or information
produced is deemed privileged. The receiving party must immediately
return the document and all copies. The producing party will then add
those documents to its privilege log. The return of the document(s) and/or
information to the producing party will not preclude the receiving party
from later moving the Court to compel production of the returned
documents and/or information.

4

The parties’ protective order will include a claw-back provision and other procedures
dealing with the inadvertent production of privileged materials and work product.
The parties agree that privilege logs will not be required for (1) communications between
parties and their outside counsel that occurred after the California Actions commenced; and (2)
the work product of outside counsel, not disclosed to a third-party or entity not subject to a joint
defense or common interest privilege.
10. Complex Case Designation
The parties agree this case should not be designated as a Complex Case. The case
presents no unusual legal issues. The Manual for Complex Litigation should not apply to this
case.
11. Motions
Motions for Preliminary Injunction
On September 5, 2013, this Court granted Plaintiffs’ motion for a preliminary injunction
against FilmOn X (Dkt. No. 34).
Dispositive or Partially Dispositive Motions
The parties anticipate filing summary judgment and/or summary adjudication motions.
12. Alternative Dispute Resolution (“ADR”)
The parties have conducted a court-ordered mediation with a private mediator in the
California Actions. They believe it is premature to discuss settlement at this juncture in this
action.
13. Amendment of Pleadings / Additional Parties
Plaintiffs may seek leave to add additional defendants. The parties will meet and confer
and attempt to amend the pleadings by stipulation.

5

Additionally, Plaintiffs may seek leave to amend the complaint to identify new
copyrighted works that are alleged to have been infringed by FilmOn X up to the time of trial.
14. Jury Trial
The parties have each requested a jury trial. Plaintiffs’ preliminary estimate for trial is 2
weeks. FilmOn X’s preliminary estimate for trial is 7-10 days. The parties do not anticipate
severance, bifurcation, or other changes in the standard order of proof at trial.

Dated: September 13, 2013
/s/ Julie A. Shepard
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/ James S. Blackburn
Robert Alan Garrett (D.C. Bar No. 239681)
Hadrian R. Katz (D.C. Bar No. 931162)
Christopher Scott Morrow
(D.C. Bar No. 491925)
Murad Hussain (D.C. Bar No. 999278)

6

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.
/s/ Ryan G. Baker
Ryan G. Baker (admitted pro hac)
BAKER MARQUART LLP
10990 Wilshire Blvd, Fourth Floor
Los Angeles, CA 90024
Telephone: [phone]
Facsimile: [phone]
Kerry J. Davidson
LAW OFFICE OF KERRY J. DAVIDSON
1738 Elton Road, Suite 113
Silver Spring, MD 20903
Telephone: [phone]
Facsimile: [phone]
Bar No.: 456431
Attorneys for Defendants FilmOn X, LLC,
FilmOn.TV, Inc., FilmOn.TV Networks, Inc.,
and FilmOn.com, Inc.

7