Righthaven LLC v. Democratic Underground, LLC et al

Filing 145

RESPONSE to 143 Emergency MOTION to Stay re 137 Transcript,, 138 Show Cause Hearing,,,,,,,, ; filed by Defendants David Allen, Democratic Underground, LLC. (Attachments: # 1 Declaration of J. Malcolm DeVoy IV In Support of DU's Response to Righthaven's Application for Extension of Time to Comply with July 14, 2011 Order and for Clarification of Same, # 2 Exhibit 1 to DeVoy Declaration, # 3 Declaration of Kim McIntyre In Support of DU's Response to Righthaven's Application for Extension of Time to Comply with July 14, 2011 Order and for Clarification of Same)(Pulgram, Laurence)

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SAN FRANCISCO

ATTORNEYS AT LAW

F ENWICK & W EST LLP

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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,
Plaintiff,
v.
DEMOCRATIC UNDERGROUND, LLC, a District of
Columbia limited-liability company; and DAVID ALLEN,
an individual,
Defendants.

Case No. 2:10-cv-01356-RLH (GWF)

DECLARATION OF J.
MALCOLM DEVOY IV IN
SUPPORT OF DEFENDANT
DEMOCRATIC
UNDERGROUND’S RESPONSE
TO RIGHTHAVEN’S
DEMOCRATIC UNDERGROUND, LLC, a District of
APPLICATION FOR EXTENSION
Columbia limited-liability company,
OF TIME TO COMPLY WITH
Counterclaimant,
JULY 14, 2011 ORDER AND FOR
v.
CLARIFICATION OF SAME
RIGHTHAVEN LLC, a Nevada limited liability company, [DKT 143]
and STEPHENS MEDIA LLC, a Nevada limited-liability
company,
Counterdefendants.
DEVOY DEC ISO DEF. DU’S RESPONSE
TO APP. FOR EXTENSION OF TIME

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

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I, J. MALCOLM DEVOY IV, hereby declare as follows:

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1.

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I am a duly licensed attorney in Nevada and a member of the Nevada bar in good

standing, and attorney for the Randazza Legal Group law firm.
2.

Marc Randazza (admitted pro hac vice) and I are counsel of record for

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Wayne Hoehn, the defendant in Righthaven LLC v. Hoehn, Case Number 2:11-cv-00050

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(D. Nev.).

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3.

On June 20, 2011, the Hoehn court issued an Order dismissing Righthaven’s

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Complaint for lack of standing, further finding that the defendant’s use of the work at issue would

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have been a non-infringing fair use under 17 U.S.C. § 107, and the court clerk entered judgment

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in that case. Hoehn, Case No. 2:11-cv-00050 (Dkt. 28, 30) (D. Nev. June 20, 2011).
4.

On July 14, 2011, I attended this Court’s hearing on its June 14 Order to Show

SAN FRANCISCO

ATTORNEYS AT LAW

F ENWICK & W EST LLP

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Cause (Dkt. 116) regarding numerous misrepresentations the Court believed had been made by

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Righthaven over the course of litigation.

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5.

I am aware of, and have reviewed, this Court’s July 18, 2011 minute order

memorializing the sanctions imposed on Righthaven (Dkt. 138).
6.

From July 20 to 21, Marc Randazza and I engaged in an e-mail exchange with

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Righthaven’s counsel, Shawn Mangano, regarding the applicability of the July 18 order in the

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Hoehn case. A true and correct copy of this e-mail exchanged is attached hereto as Exhibit 1,

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irrelevant portions of which are redacted. Subsequent to the exchange seen in Exhibit 1,

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Righthaven has declined to file the documents specified in the July 18 minute order in Hoehn or

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any other case I am aware of, or counsel of record.

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7.

As seen in Exhibit 1, this straightforward inquiry turned into a flurry of e-mails

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that, to date, have not resulted in Righthaven filing any of the documents specified in this Court’s

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July 18 order (Dkt. 138) being filed in the Hoehn case.

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8.

These exchanges – numerous e-mails and phone calls, where Righthaven asks for

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clarification, explanation, and an iron-clad requirement for it to act – have been typical of

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Rigthhaven’s conduct in litigation, necessitating extensive litigation to obtain attorney’s fees in

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Righthaven LLC v. Leon et al., Case Number 2:10-cv-01672 (Dkt. 52, 53) (D. Nev. July 5, 2011),
DEVOY DEC ISO DEF. DU’S RESPONSE
TO APP. FOR EXTENSION OF TIME

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

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and even more litigation to collect that award of $3,815. Leon, Case No. 2:10-cv-01672 (Dkt. 54,

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56, 57) (D. Nev. July 12, 2011). Righthaven did pay the $3,815 judgment, but only after claiming

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to be considering an appeal of the award, and being ordered by the court to make such a payment.

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Leon, Case No. 2:10-cv-01672 (Dkt. 56, 59) (D. Nev. July 12, 2011).

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9.

Prior to moving for fees in the Hoehn case, a similar exchange occurred, where

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Marc Randazza and I sought to resolve the issue without litigation – but Hoehn was required to

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resolve the question of attorney’s fees with the court. Hoehn, Case No. 2:11-cv-00050 (Dkt. 32-2

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¶¶ 14-18) (D. Nev. July 5, 2011).

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10.

While judgment had been entered in Hoehn at that point, there was, and still exists,

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a pending motion for attorneys’ fees, filed on July 5, 2011. Hoehn, Case No. 2:11-cv-00050 (Dkt.

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32) (D. Nev. July 5, 2011).

SAN FRANCISCO

ATTORNEYS AT LAW

F ENWICK & W EST LLP

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11.

Additionally, Righthaven has filed a notice of appeal in Hoehn. Case No. 2:11-

cv-00050 (Dkt. 33) (D. Nev. July 5, 2011).
12.

It is my understanding of this Court’s order, based on attendance at the July 14,

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2011 hearing, review of the transcript from that hearing, and the Court’s minute order (Dkt. 138),

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that the Court’s order would apply to cases pending appeal, even after being dismissed by their

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respective courts.

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13.

Based on the e-mail exchange Marc Randazza and I had with Righthaven’s

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attorney, Shawn Mangano, as of July 20, 2011, Righthaven stated that it had “not [yet]

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considered” whether the Court’s order requires it to file the July 14 transcript hearing, June 14

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order (Dkt. 116) and Strategic Alliance Agreement in Hoehn. (See Exh. 1.) As of the time of this

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declaration, Righthaven has declined to file any of these documents in Hoehn.

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I declare the foregoing under penalty of perjury under the laws of the United States and that
the foregoing is true and correct. Executed this 1st day of August, 2011, in Las Vegas, Nevada.

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/s/ J. Malcolm DeVoy IV
J. Malcolm DeVoy IV

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DEVOY DEC ISO DEF. DU’S RESPONSE
TO APP. FOR EXTENSION OF TIME

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

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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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SAN FRANCISCO

ATTORNEYS AT LAW

F ENWICK & W EST LLP

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DEVOY DEC ISO DEF. DU’S RESPONSE
TO APP. FOR EXTENSION OF TIME

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