Righthaven LLC v. Democratic Underground, LLC et al

Filing 73

MOTION to Seal 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 Proposed Order Granting Conditional Motion to File Under Seal)(Pulgram, Laurence)

Righthaven LLC v. Democratic Underground, LLC et al

Doc. 73

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

Case No. 10-01356-RLH (GWF) CONDITIONAL MOTION TO FILE DOCUMENTS UNDER SEAL

Dockets.Justia.com

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CONDITIONAL REQUEST TO SUBMIT DOCUMENTS UNDER SEAL Defendant and Counterclaimant Democratic Underground, LLC and Defendant David Allen (collectively, "Democratic Underground" or "Defendants") hereby respectfully request that the Court permit Defendants to submit portions of Defendants' Motion for Leave, Supplemental Memorandum Addressing Recently Produced Evidence Relating to Pending Motions ("Supplemental Memorandum"), and Exhibit A to the Supporting Declaration of Laurence Pulgram under seal, pending agreement with opposing counsel or a decision of this Court as to which portions, if any, of such material should be publicly available. Exhibit A to the Declaration of Laurence Pulgram is a document belatedly produced by Counterdefendant Stephens Media LLC ("Stephens Media") in this action. Exhibit A was designated as "Confidential Attorneys' Eyes Only" by Stephens Media under the Stipulated Protective Order entered by the Court on February 14, 2011. Documents and information that have been designated by a party as "Confidential Attorneys' Eyes Only" can only be submitted to the Court under seal. See Dkt. 65, ¶ 12. While Defendants do not believe that Exhibit A is appropriately designated under either the terms of the Stipulated Protective Order or applicable law as appropriate for restriction from public access, and do not believe Exhibit A should ultimately be maintained under seal (at least in its entirety), Defendants are required at this time to submit it under seal. The same is true for portions of Defendants' Supplemental Memorandum and Motion for Leave which quote from or summarize the contents of Exhibit A. Generally, the Ninth Circuit recognizes a "strong presumption in favor of public access" for materials produced in discovery and submitted to the court, holding further that discovery documents' "status changes" when submitted to the court with a dispositive motion. See, e.g., Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003). In such a case, the presumption of public access requires the proponent of non-access to show "`compelling reasons supported by specific factual findings' that outweigh the general history of access and public policies favoring disclosure." Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (citations omitted).

MOTION TO SEAL

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Defendants do not believe that Stephens Media or Righthaven can meet this high standard here. As such, Defendants have requested that Stephens Media and Righthaven agree to dedesignate all or at least portions of Exhibit A to allow for public disclosure. See Declaration of Laurence F. Pulgram in Support of Defendants' Supplemental Memorandum Addressing Recently Produced Evidence Relating to Pending Motions, ¶ 11; Dkt. 65. Provided an agreement can be reached with Stephens Media and Righthaven, Defendants intend to submit a stipulation for filing Exhibit A, redacted as may be agreed, for public filing. If no such agreement can be reached, Stephens Media and Righthaven may attempt to justify the sealing of the entirety of Exhibit A in response to this Motion. Accordingly, Defendants conditionally request that they be allowed to submit portions of Defendants' Motion for Leave, Supplemental Memorandum, and Exhibit A to the Supporting Declaration of Laurence Pulgram under seal, pending agreement of the parties that only portions of Exhibit A should be sealed or a decision by the Court that the documents as a whole should be available for public access. Defendants request that the Court enter the submitted proposed order to provide a process for determination of the sealing of this document.

Dated: March 4, 2011

FENWICK & WEST LLP

By:

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

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

MOTION TO SEAL

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