Righthaven LLC v. Democratic Underground, LLC et al

Filing 72

MOTION for Leave to File DEFENDANTS SUPPLEMENTAL MEMORANDUM ADDRESSING RECENTLY PRODUCED EVIDENCE RELATING TO PENDING MOTIONS, AND SUPPORTING DECLARATION OF LAURENCE PULGRAM -- by Defendants David Allen, Democratic Underground, LLC, Counter Claimant Democratic Underground, LLC. Motion ripe 3/4/2011. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order)(Pulgram, Laurence)

Righthaven LLC v. Democratic Underground, LLC et al

Doc. 72

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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] 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. DEMOCRATIC UNDERGROUND, LLC, a District of Columbia limited-liability company, Counterclaimant, v. RIGHTHAVEN LLC, a Nevada limited liability company, and STEPHENS MEDIA LLC, a Nevada limited-liability company, Counterdefendants.
MOTION FOR LEAVE CASE NO. 2:10-CV-01356-RLH (GWF)

Case No. 10-01356-RLH (GWF) MOTION FOR LEAVE TO FILE DEFENDANTS' SUPPLEMENTAL MEMORANDUM ADDRESSING RECENTLY PRODUCED EVIDENCE RELATING TO PENDING MOTIONS AND THE SUPPORTING DECLARATION OF LAURENCE PULGRAM

Dockets.Justia.com

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MOTION FOR LEAVE

MOTION FOR LEAVE Defendant and Counterclaimant Democratic Underground, LLC and Defendant David Allen (collectively, "Democratic Underground" or "Defendants") hereby respectfully request that the Court permit Defendants to file a Supplemental Memorandum Addressing Recently Produced Evidence Relating to Pending Motions ("Supplemental Memorandum") and the Supporting Declaration of Laurence Pulgram ("Pulgram Decl."), attached hereto as Exhibits 1 and 2 respectively. As fully explained by Defendants' Supplemental Memorandum, this briefing is necessary to address belatedly produced information highly relevant to the three currently pending motions. See Dkt. 36 (Righthaven's Motion to Dismiss); Dkt. 38-39 (Stephens Media's Motion to Dismiss and Joinder); and Dkt. 45 (Democratic Underground's Cross Motion for Summary Judgment). Specifically, on February 28, 2011, Cross-Defendant Stephens Media, LLC ("Stephens Media") produced a copy of . See Declaration of Laurence Pulgram ("Pulgram Decl."), Exhibit A never before revealed to any Court in this District, on its face purports to Id. While Righthaven has previously represented to the Court

it (and Stephens Media) has heretofore failed to provide . provide substantial evidence relevant to the pending motions, including that:

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

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MOTION FOR LEAVE

Defendants request that the Court consider the Supplemental Memorandum and the supporting Declaration of Laurence Pulgram as they address this new evidence and provide a further basis upon which to deny the two Motions to Dismiss and to grant summary judgment on the issue of fair use. Given that this material was only recently and belatedly produced, Defendants could not have addressed it in any of the prior briefing. See, e.g., United States v. Maris, 2011 WL 468554, at *5 n.5 (D. Nev. Feb. 4, 2011) (granting leave to file supplemental materials even after the hearing on a motion for summary judgment); Mitchel v. Holder, 2010 WL 816761, at *1 n.1 (N.D. Cal. Mar. 9, 2010) (granting leave to file supplemental brief in support of motion for summary judgment addressing newly discovered evidence); Lumsden v. United States, 2010 WL 2232946, at *1 (E.D. N.C. June 3, 2010) (granting leave to submit additional newly discovered evidence in support of motion for summary judgment).

Dated: March 4, 2011

Respectfully submitted, FENWICK & WEST LLP

By:

/s/ Laurence F. Pulgram LAURENCE F. PULGRAM, ESQ

Attorneys for Defendant and Counterclaimant DEMOCRATIC UNDERGROUND, LLC, and Defendant DAVID ALLEN

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