Righthaven LLC v. Democratic Underground, LLC et al

Filing 85

MOTION to Unseal; filed by Defendants David Allen, Democratic Underground, LLC. (Attachments: # 1 Proposed Order)(Pulgram, Laurence) Event type corrected on 3/30/2011. (MJZ)

Righthaven LLC v. Democratic Underground, LLC et al

Doc. 85

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

Case No. 10-01356-RLH (GWF) DEFENDANTS' REQUEST TO UNSEAL EXHIBIT A TO PULGRAM DECLARATION AND RELATED FILINGS [DKT NOS. 74, 79]

Dockets.Justia.com

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REQUEST TO UNSEAL On March 8, 2011, this Court ordered that Defendants' Supplemental Memorandum Addressing Recently Produced Evidence Relevant to Pending Motions (Dkt. 74) and accompanying documents be temporarily placed under seal, but also provided that: within fourteen (14) days of the date of this Order, (i) the parties shall file a stipulation as to which portions of said Exhibit A and the Supplemental Memorandum shall remain under seal or, (ii) if no stipulation is reached by the parties, Counterdefendants Stephens Media, LLC and Righthaven, LLC shall file with the Court their justification for retaining Exhibit A under seal, with any Reply thereto by Defendants to be filed within seven days thereafter. Order Granting Defendants' Conditional Motion to File Documents Under Seal (Dkt. 75) ("March 8 Order") at 2. As this Court knows, the documents were placed under seal only because they were designated "Confidential Attorneys' Eyes Only" by Stephens Media LLC ("Stephens Media") under the Stipulated Protective Order. On March 9, 2011, Defendants asked Counterdefendants Stephens Media and Righthaven LLC ("Righthaven") to withdraw the designation or modify it to limited portions of the document or advise that they refused to do so. See Declaration of Clifford Webb in Support of Defendants' Request to Unseal ("Webb Decl.") ¶ 3. Defendants also notified Counterdefendants' counsel that they were willing to attempt to stipulate to redaction of any appropriately limited portion. Id. Later that day, counsel for Stephens Media and Righthaven refused to lift the designation on Exhibit A. Id. ¶ 4. Since then, neither Righthaven nor Stephens Media have proposed redactions or sought a stipulated resolution. Id. Accordingly, Defendants hereby notify the Court that no stipulation was reached by the parties. Therefore, pursuant to this Court's March 8, 2011 Order, Righthaven and Stephens Media were required to "file with the Court their justification for retaining Exhibit A under seal" within fourteen days of the March 8 Order. Dkt. 75. As of March 29, 2011, 21 days from the date of this Court's order, the due date for Defendants' reply, neither Stephens Media nor Righthaven have filed with the Court any justification for retaining any documents under seal. Accordingly, by failing to oppose the unsealing, Stephens Media and Righthaven have failed to provide the specific, articulable facts necessary to meet their burden of showing
REQUEST TO UNSEAL

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compelling reasons for overriding the general right to inspect and copy judicial records and documents.1 See also Local Rule 7-2(d) ("The failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion."). CONCLUSION For the reasons stated above, Defendants respectfully request that this Court unseal (i) Defendants' Motion for Leave to File Supplemental Memorandum Addressing Recently Produced Evidence Relevant to Pending Motions (Dkt. 74); (ii) Defendants' Supplemental Memorandum Addressing Recently Produced Evidence Relevant To Pending Motions (Dkts. 74 & 79); (iii) Declaration of Laurence Pulgram (Dkts. 74 & 79); and (iv) Exhibit A to Declaration of Laurence Pulgram (Dkts. 74 & 79). Dated: March 29, 2010 FENWICK & WEST LLP

By:

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

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

There is a strong presumption of public access to court records, and "compelling reasons" are required to override that presumption, particularly in the case of dispositive motions and their related attachments. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003). Of course, the presumptive right to access is not absolute, but it can only be overridden given "sufficiently compelling reasons" for doing so. Foltz, 331 F.3d at 1135. These compelling reasons must be supported by "specific factual findings." Id. (citing San Jose Mercury News, Inc. v. United States District Court, 187 F.3d 1096, 1103 (9th Cir. 1999)); see also Kamakana, 447 F.3d at 1182 (the court's findings must be based on the specific, articulable facts provided to it). There is no room here for "hypothesis or conjecture." Kamakana, 447 F.3d at 1179 (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). Conclusory or categorical statements that might satisfy the lesser "good cause" standard will therefore not suffice. Id. at 1184. Moreover, as the Ninth Circuit has explained, "the mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation" is insufficient to support sealing. Kamakana, 447 F.3d at 1178 (quoting Foltz, 331 F.3d at 1136). REQUEST TO UNSEAL

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