Righthaven LLC v. Democratic Underground, LLC et al

Filing 140

RESPONSE to 120 MOTION to Intervene as of Right Pursuant to Federal Rule of Civil Procedure 24(a)(2), 126 MOTION for District Judge to Reconsider Order re 116 Order on Motion to Dismiss,,,,,, Order on Motion for Summary Judgment,,,,,, Set/Reset Deadlines,,, Terminate Case,, MOTION for District Judge to Reconsider Order re 116 Order on Motion to Dismiss,,,,,, Order on Motion for Summary Judgment,,,,,, Set/Reset Deadlines,,, Terminate Case,,, filed by Defendants David Allen, Democratic Underground, LLC. [Redacted Version] Replies due by 8/5/2011. (Attachments: # 1 Declaration of Clifford Webb In Support of Defendant Democratic Underground's Consolidated Opposition to Righthaven's Motion to Intervene and Opposition to Counterdefendant Stepens Media's Motion for Reconsideration, # 2 Exhibit 1 (Submitted Under Seal), # 3 Exhibit 2 (Submitted Under Seal), # 4 Exhibit 3 (Submitted Under Seal), # 5 Exhibit 4, # 6 Exhibit 5 (Submitted Under Seal), # 7 Exhibit 6)(Pulgram, Laurence)

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LAURENCE F. PULGRAM (CA State Bar No. 115163) (pro hac vice)
[e-mail]
CLIFFORD C. WEBB (CA State Bar No. 260885) (pro hac vice)
[e-mail]
JENNIFER J. JOHNSON (CA State Bar No. 252897) (pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, California 94104
Telephone:
[phone]
Facsimile:
[phone]
KURT OPSAHL (CA State Bar No. 191303) (pro hac vice)
[e-mail]
CORYNNE MCSHERRY (CA State Bar No. 221504) (pro hac vice)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, California 94110
Telephone:
[phone]
Facsimile:
[phone]
CHAD BOWERS (NV State Bar No. 7283)
[e-mail]
CHAD A. BOWERS, LTD
3202 West Charleston Boulevard
Las Vegas, Nevada 89102
Telephone:
[phone]
Attorneys for Defendant and Counterclaimant
DEMOCRATIC UNDERGROUND, LLC, and
Defendant DAVID ALLEN
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
RIGHTHAVEN LLC, a Nevada limited liability company, Case No. 2:10-cv- 01356-RLH (GWF)
Plaintiff,
v.
DECLARATION OF CLIFFORD
WEBB IN SUPPORT OF
DEMOCRATIC UNDERGROUND, LLC, a District of
Columbia limited-liability company; and DAVID ALLEN, DEFENDANT DEMOCRATIC
UNDERGROUND’S
an individual,
CONSOLIDATED OPPOSITION
Defendants.
TO RIGHTHAVEN’S MOTION
TO INTERVENE AND
OPPOSITION TO
DEMOCRATIC UNDERGROUND, LLC, a District of
COUNTERDEFENDANT
Columbia limited-liability company,
STEPHENS MEDIA’S MOTION
Counterclaimant,
FOR RECONSIDERATION
v.
RIGHTHAVEN LLC, a Nevada limited liability company,
and STEPHENS MEDIA LLC, a Nevada limited-liability
company,
Counterdefendants.
WEBB DECL. ISO DEF’S CONSOLIDATED
OPPOSITION

CASE NO. 2:10-cv-01356-RLH (GWF)

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I, Clifford Webb, declare as follows:

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1.

I am an attorney licensed to practice law in the State of California and an associate

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at Fenwick & West, LLP, counsel for Democratic Underground, LLC (“Democratic

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Underground”) in the above-captioned matter. I have personal knowledge of the facts stated in

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this declaration, and if called upon to do so, could and would competently testify thereto.

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2.

On March 22, 2011, Stephens Media produced a copy of Righthaven’s Operating

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Agreement, designated under the Stipulated Protective Order in this case as Confidential

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Attorneys Eyes Only. Following that initial production, Stephens Media and Righthaven agreed

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to redesignate several portions of that agreement as non-confidential. See Dkt. 107-2. However,

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several portions, including portions of Article 9 of that agreement were not dedesignated by

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Stephens Media and Righthaven. Attached hereto as Exhibit 1 is a true and correct copy of

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Article 9 to Righthaven’s Operating Agreement.

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3.

While generally its production of documents in response to Democratic

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Underground’s request has been minimal, on February 28, 2011, Stephens Media did produce a

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small number of documents in this case. Among those produced were a handful of license

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agreements between Stephens Media and certain companies allowing for the licensing of

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Las Vegas Review-Journal content including the News Article at issue in this lawsuit. Among

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these documents were the following:

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a.

A Licensing Agreement between Stephens Media and ProQuest

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Information and Learning Company, dated January 15, 2002 and marked

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“Confidential Attorneys Eyes Only” (Bates Nos. SM000065- SM000067),

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a true and correct copy of which is attached hereto as Exhibit 2.

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b.

A Licensing Agreement between Stephens Media and Burrelle’s

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Information Services, LLC, dated July 29, 2010 and marked “Confidential

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Attorneys Eyes Only” (Bates Nos. SM000050- SM000058), a true and

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correct copy of which is attached hereto as Exhibit 3.

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c.

A “Publisher Terms of Service Agreement” between Stephens Media and
ShareThis, Inc., with effective date of January 30, 2011 (Bates

WEBB DECL. ISO DEF’S CONSOLIDATED
OPPOSITION

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CASE NO. 2:10-cv-01356-RLH (GWF)

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Nos. SM000014-SM000022), a true and correct copy of which is attached

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hereto as Exhibit 4.

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d.

A Licensing Agreement between Lexis-Nexis and the Las Vegas Review-

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Journal, undated, marked “Confidential Attorneys Eyes Only” (Bates

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Nos. SM000059-0000062), a true and correct copy of which is attached

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hereto as Exhibit 5.

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4.

On July 26, 2011, I visited the Las Vegas Review-Journal’s website and observed

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that the Review-Journal uses the “ShareThis” application on the pages of news articles that it

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publishes, including the article at issue in this dispute. Attached hereto as Exhibit 6 is a true and

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correct copy of a portion of the news article entitled “Tea Party Power Fuels Angle” as displayed

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on the website on the Las Vegas Review-Journal on July 26, 2011. The Exhibit reflects the

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Las Vegas Review-Journal’s use of the “ShareThis” application.

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5.

On July 26, 2011, I searched the Lexis-Nexis news database and observed that the

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news article at issue in this case entitled “Tea Party Power Fuels Angle” was still available for

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viewing.

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct. Executed on July 26, 2011, in San Francisco, California.

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/s/ Clifford Webb
Clifford Webb

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ATTORNEY ATTESTATION

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In accordance with the Court’s Special Order No. 109, dated September 30, 2005, I

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hereby attest that concurrence in the filing of this document has been obtained from the

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signatories indicated by a “conformed” signature (/s/) within this e-filed document:

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/s/ Laurence Pulgram
Laurence Pulgram

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WEBB DECL. ISO DEF’S CONSOLIDATED
OPPOSITION

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CASE NO. 2:10-CV-01356-RLH (GWF)