Righthaven LLC v. Democratic Underground, LLC et al

Filing 95

First MOTION to Compel the Production of Documents By Defendant Democratic Underground, LLC and Memorandum of Points and Authorities In Support Thereof by Defendants David Allen, Democratic Underground, LLC. Responses due by 5/15/2011. (Attachments: # 1 Proposed Order Granting Defendant's First Motion to Compel Production of Documents)(Webb, Cliff)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAURENCE F. PULGRAM (CA State Bar No. 115163) (pro hac vice) lpulgram@fenwick.com CLIFFORD C. WEBB (CA State Bar No. 260885) (pro hac vice) cwebb@fenwick.com FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, California 94104 Telephone: (415) 875-2300 Facsimile: (415) 281-1350 KURT OPSAHL (CA State Bar No. 191303) (pro hac vice) kurt@eff.org CORYNNE MCSHERRY (CA State Bar No. 221504) (pro hac vice) corynne@eff.org ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, California 94110 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 CHAD BOWERS (NV State Bar No. 7283) bowers@lawyer.com CHAD A. BOWERS, LTD 3202 West Charleston Boulevard Las Vegas, Nevada 89102 Telephone: (702) 457-1001 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. 2:10-01356-RLH (GWF) 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. DEFENDANT DEMOCRATIC UNDERGROUND LLC’S FIRST NOTICE OF MOTION AND MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF RIGHTHAVEN LLC, a Nevada limited liability company, and STEPHENS MEDIA LLC, a Nevada limited-liability company, Counterdefendants. DEFENDANT’S MOTION TO COMPEL CASE NO. 2:10-CV-01356-RLH (GWF) TABLE OF CONTENTS 1 2 Page 3 NOTICE OF MOTION AND MOTION TO COMPEL ................................................................. 1  4 LOCAL RULE 26-7(B) CERTIFICATION ................................................................................... 1  5 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 2  6 I. INTRODUCTION .............................................................................................................. 2  7 II. FACTUAL BACKGROUND ............................................................................................. 3  8 A. Case Overview ........................................................................................................ 3  9 B. Background of the Present Discovery Dispute ....................................................... 5  10 1. Meet and Confer with Stephens Media ....................................................... 6  11 2. Meet and Confer with Righthaven .............................................................. 8  12 13 III. ARGUMENT .................................................................................................................... 10  A. Righthaven and Stephens Media Must Produce Documents Related to the Formation of Righthaven ...................................................................................... 11  14 1. Documents Relating To The Creation Of Righthaven Are Highly Relevant To Defendants’ Affirmative Defenses And Democratic Underground’s Counterclaim .................................................................... 15  2. Righthaven Has Not Met Its Burden Of Showing That Information Related To The Formation Of Righthaven Is Not Discoverable............... 15  3. Righthaven and Stephens Media Have Improperly Failed to Produce Relevant Documents ................................................................... 16  4. Stephens Media Has Admitted It Is In Possession Of Relevant Documents Which It Is Withholding Based On Its “Previously Asserted Objections” Despite Asserting In Its Responses That It Is Not In Possession Of Responsive Documents .......................................... 17  15 16 17 18 19 20 21 23 Righthaven and Stephens Media Must Produce Documents Related to The Assignment of Rights In The News Article, Including Communications About the SAA ...................................................................................................... 18  24 1. Stephens Media’s Confidentiality Objections Are Moot Since Entry of the Stipulated Protective Order ............................................................. 25  2. Righthaven Has Improperly Failed to Produce Relevant Documents ...... 26  22 B. 25 26 C. 27 Righthaven and Stephens Media Have Waived Their Objections Based on the Attorney-Client or Work-Product Privileges By Failing To Produce A Privilege Log ......................................................................................................... 26  28 DEFENDANT’S MOTION TO COMPEL i CASE NO. 2:10-CV-01356-RLH (GWF) TABLE OF CONTENTS (Continued) 1 Page 2 3 IV. CONCLUSION ................................................................................................................. 29  4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S MOTION TO COMPEL ii CASE NO. 2:10-CV-01356-RLH (GWF) TABLE OF AUTHORITIES 1 Page(s) 2 3 CASES 4 Akers v. Keszei, 2009 U.S. Dist. LEXIS 106247 (D. Nev. Oct. 27, 2009) (Foley, J.) ................................ 26, 27 5 6 Blankenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 1975)............................................................................................. 10, 11 7 Del Webb Communities, Inc. v. Partington, 2009 WL 3053709 (D. Nev. Sept. 18, 2009) .......................................................................... 11 8 9 DIRECTV, Inc. v. Trone, 209 F.R.D. 455 (C.D. Cal. 2002) ................................................................................ 11, 12, 15 10 Gracenote v. Musicmatch, Inc., 2003 U.S. Dist. LEXIS 26015 (N.D. Cal Oct. 14, 2003) ........................................................ 16 11 12 Jackson v. Montgomery Ward & Co., 173 F.R.D. 524 (D. Nev. 1997) ......................................................................................... 10, 15 13 Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 2007 U.S. Dist. LEXIS 17540 (D. Nev. March 12, 2007) ............................................... passim 14 15 Marchand v. Mercy Med. Ctr., 22 F.3d 933 (9th Cir. 1994)..................................................................................................... 16 16 Nidec Corp. v. Victor Company of Japan, 249 F.R.D. 575 (N.D. Cal. 2007) ................................................................................ 14, 25, 28 17 18 Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881 (9th Cir. 2005)................................................................................................... 11 19 RULES 20 Federal Rule of Civil Procedure 26........................................................................................ passim 21 Federal Rule of Civil Procedure 34........................................................................................ passim 22 Federal Rule of Civil Procedure 37................................................................................................. 1 23 Local Rule 26-7 ............................................................................................................................... 1 24 Local Rule 26-7(a) ............................................................................................................ 12, 19, 28 25 Local Rule 26-7(b) .......................................................................................................................... 1 26 OTHER AUTHORITIES 27 Las Vegas Review Journal article ................................................................................................... 2 28 DEFENDANT’S MOTION TO COMPEL iii CASE NO. 2:10-CV-01356-RLH (GWF) 1 2 NOTICE OF MOTION AND MOTION TO COMPEL Defendant and Counterclaimant Democratic Underground, LLC (“Democratic 3 Underground” or “Defendant”) hereby moves pursuant to Federal Rules of Civil Procedure 26, 34 4 and 37 and Local Rule 26-7 to compel Plaintiff and Counterdefendant Righthaven LLC 5 (“Righthaven”) and Counterdefendant Stephens Media LLC (“Stephens Media”) to produce all 6 documents responsive to certain requests in Defendant and Counterclaimant Democratic 7 Underground LLC’s First Set of Requests for Production of Documents (“First Set of Requests 8 for Production of Documents”) relating to (1) the creation of Righthaven and (2) the assignment 9 of the copyright at issue, including communications required by and relating to the Strategic 10 11 Alliance Agreement recently made public in this case. This motion is based on the following Local Rule 26-7(b) Certification, the following 12 Memorandum of Points and Authorities, the accompanying Declaration of Clifford C. Webb and 13 such other written submissions and oral argument as may be presented to the Court at or before 14 the time this motion is taken under submission. 15 LOCAL RULE 26-7(B) CERTIFICATION 16 Pursuant to Local Rule 26-7(b), counsel for Democratic Underground certifies that it 17 conferred by email, by letter and by telephone with counsel for Righthaven and Stephens Media 18 from January 21, 2011 through March 24, 2011, in a sincere effort to resolve the issues raised by 19 this Motion to Compel without court action. Defendant’s efforts have been unsuccessful, 20 necessitating this motion. 21 Dated: April 28, 2011 FENWICK & WEST LLP 22 23 By: 24 /s/ Clifford C. Webb CLIFFORD C. WEBB Attorneys for Defendant and Counterclaimant DEMOCRATIC UNDERGROUND, LLC, and Defendant DAVID ALLEN 25 26 27 28 DEFENDANT’S MOTION TO COMPEL 1 CASE NO. 2:10-CV-01356-RLH (GWF) 1 2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION 3 As the Court aptly stated in its most recent Order in this action, “Righthaven and Stephens 4 Media have attempted to create a cottage industry of filing copyright claims, making large claims 5 for damages and then settling claims for pennies on the dollar, with defendants who do not want 6 to incur the costs of defending the lawsuits[. They] are now offended when someone has turned 7 the tables on them and is insisting on a judgment in their favor rather than a simple dismissal of 8 the lawsuit.”1 Defendants, Democratic Underground (“DU”) and its founder, David Allen, have 9 refused to be intimidated. They have defended against claims that they infringed Righthaven’s 10 copyrights when a blogger posted on the DU website a five sentence excerpt from a fifty sentence 11 Las Vegas Review Journal article. In their defense, Defendants have not only claimed fair use, 12 but also challenged Righthaven’s standing to sue, asserting that the purported assignment of 13 rights from Stephens Media to Righthaven is a sham, champertous, and invalid. 14 With this Motion, Defendants ask the Court to compel documents that are directly 15 relevant to the last issue: Righthaven’s standing. Specifically, this includes documents about (1) 16 the formation of Righthaven and (2) the assignment of the copyright at issue. These documents 17 are not only relevant to the claims and defenses in this action, but also to the hundreds of other 18 actions Righthaven has filed. As the Court stated in its Order Granting Defendants’ Motion to 19 Unseal, which made public the Strategic Alliance Agreement (one of the few documents 20 produced by Stephens Media thus far): “it appears to the Court that there is certainly an interest 21 and even a right in all the other defendants sued by Plaintiff to have access to this material. 22 Furthermore, because these cases have generated a great deal of public interest, particularly in the 23 media and on the internet, that there is a right of the public to this information which overrides 24 any claimed confidential commercial rights.”2 Righthaven and Steven Media have refused to produce these documents for over four 25 26 months. Indeed, Righthaven has refused to produce a single document in discovery in this case. 27 1 28 Order on Motion for Reconsideration, Docket (“Dkt.”) 94 at 2. 2 Docket 93 at 4. DEFENDANT’S MOTION TO COMPEL 2 CASE NO. 2:10-CV-01356-RLH (GWF) 1 Instead, Righthaven has time and time again promised to produce documents or reply to 2 Defendants regarding the status of production, and then failed to do so. Meanwhile, Stephens 3 Media has unilaterally limited its discovery responses, producing a tiny subset of information. It 4 has claimed as to certain requests that documents are only in its affiliates’ possession, while later 5 contradicting itself and stating that, although Stephens Media is itself in possession of responsive 6 documents, those documents will not be produced or identified in privilege logs. After over two 7 months of meeting and conferring, Righthaven and Stephens Media continue to abuse the 8 discovery process by withholding relevant documents. Further, each has failed for four months to 9 produce any privilege log—thereby waiving the unclaimed privilege—while, at the same time 10 refusing to produce communications relating to the formation of Righthaven on the basis that they 11 are purportedly privileged. 12 There is no further excuse for Righthaven and Stephens Media’s obstruction. They should 13 be ordered to produce the documentation of their relationship, including those as to which any 14 conceivable privilege has been waived, within ten days of the Court’s order. 15 II. FACTUAL BACKGROUND 16 A. 17 In this copyright infringement action, one of over 250 filed by Righthaven against various 18 defendants in the past year, Righthaven claims that Democratic Underground and its owner David 19 Allen, have allowed a blogger to post on the DU website an Excerpt from a News Article, the 20 copyright for which was purportedly assigned to Righthaven by Stephens Media. Defendant 21 Democratic Underground filed a counterclaim alleging that there can be no infringement, that the 22 assignment was a sham, that Righthaven exists solely to file copyright claims, and that Stephens 23 Media is the real party in interest. Dkt. 13. Defendants have also asserted several other 24 affirmative defenses, including unclean hands, barratry, champerty, and maintenance, copyright 25 misuse, fair use and lack of damages. Id. 26 Case Overview The few documents that have been obtained to date provide support for Defendants’ 27 defenses and claims. In support of a motion to dismiss, Stephens Media offered up a form of 28 “Assignment” that purported to assign its rights in the News Article to Righthaven, but which, on DEFENDANT’S MOTION TO COMPEL 3 CASE NO. 2:10-CV-01356-RLH (GWF) 1 its face, indicated that Stephens Media retained a right of reversion that the “Assignment” did not 2 disclose. When Defendants pushed to obtain the documentation of that right of reversion, 3 Stephens Media ultimately produced a Strategic Alliance Agreement (“SAA”), which purports to 4 be the master agreement that governs all the assignments Righthaven has sued upon in this Court. 5 Declaration of Clifford C. Webb In Support of Defendant Democratic Underground LLC’s 6 Motion to Compel the Production of Documents (“Webb Decl.”) ¶ 2, Exh. A. 7 The terms of the SAA provide substantial evidence that: (1) Righthaven has been 8 conveyed no rights in the work at issue other than the right to sue for infringement, a fact that 9 renders the assignment to Righthaven invalid; (2) Stephens Media is the real party in interest, 10 engaging Righthaven as its agent to prosecute this action; (3) Stephens Media retains the right to 11 sue Democratic Underground under the Agreement, thereby giving rise to a live and genuine 12 controversy with Stephens Media; and (4) Righthaven has been granted no rights to exploit the 13 work in question, and thus, for the purpose of fair use analysis, can suffer no harm from the use of 14 the Excerpt by Democratic Underground. Specifically, the SAA reflects: 15  16 17 18 19 20 21 22 23 24 25 26 27 28 It is part of an “integrated transaction” through which Stephens Media, by its affiliate “SI Content Monitor,” appears to control Righthaven. SAA ¶ 2.  Righthaven has various—all unproduced—communications with Stephens Media about which works to have assigned to it, including: Righthaven provides an “Infringement Notice” to Stephens Media prompting assignment of copyrights. SAA ¶ 3.1 “Righthaven shall have sixty (60) days after each respective assignment of each respective Assigned Infringed Copyright to Notify Stephens Media of whether Righthaven will pursue an Infringement Action of said respective Assigned Infringed Copyright (the “Remediation Option Notice”).” SAA ¶ 3.3. “Stephens Media shall provide Notice to Righthaven of each copyright (each a “Notified Copyright”) that is required to be the subject of a Copyright Assignment (a “Copyright Assignment Notice”) by no later than five (5) Business Days prior to the last day upon which each respective Copyright Assignment is required to be executed by Stephens Media as provided in Section 3.1.” SAA ¶ 7.1 “Righthaven shall then provide to Stephens Media a conforming Copyright Assignment for Stephens Media to execute with respect to each Notified Copyright within three business Days after receipt of the Copyright Assignment Notice.” Id. DEFENDANT’S MOTION TO COMPEL 4 CASE NO. 2:10-CV-01356-RLH (GWF) 1  2 work after receiving notice: 3 “Notwithstanding any other provision of this Agreement, Stephens Media shall have the right to notify Righthaven within five (5) Business Days after receipt of a respective Remediation Option Notice, that Righthaven should not take any Infringement Action with respect to a particular putative infringer as indicated in any respective Remediation Option Notice (the “Declination Notice”).” SAA ¶ 3.3. 4 5 6 Stephens Media has a right to prevent Righthaven from bringing suit on any such  Stephens Media also has a right of reversion to reclaim ownership of any work at will: 7 “Stephens Media shall have the right at any time to terminate, in good faith, any Copyright Assignment (“The Assignment Termination”) and enjoy a right of complete reversion to the ownership of any copyright that is the subject of a Copyright Assignment[.]” SAA ¶ 8. 8 9 10  11 SAA in fact provides that: 12 “Stephens Media shall retain (and is hereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.” SAA ¶ 7.2 (emphasis added). 13 14 15 Despite the purported “assignment” of all rights in the copyright to Righthaven, the  Righthaven and Stephens Media split the proceeds of any recovery 50/50, minus 16 Righthaven’s costs, except that if Stephens Media reclaims the copyright, it has to pay 17 Righthaven’s expenses to date. SAA ¶¶ 5 8. 18 Nonetheless, Stephens Media and Righthaven continue to assert that the assignment is 19 valid, that the relationship between them is not merely an agency relationship, and that 20 Righthaven has sufficient control and ownership to constitute standing under the Copyright Act. 21 Dkts. 36, 38, 56, 78. Therefore, Democratic Underground has a right to discovery of all 22 documents that might bear on this supposed relationship, such as other communications about the 23 assignment, communications leading to the formation of the SAA and negotiation of its terms, 24 communications regarding the effectuation of assignment for the News Article or the relationship 25 between Stephens Media and Righthaven, and so on. 26 27 B. Background of the Present Discovery Dispute Defendants, over the course of the last three months, have communicated the clear 28 DEFENDANT’S MOTION TO COMPEL 5 CASE NO. 2:10-CV-01356-RLH (GWF) 1 relevancy of the documents at issue and the inadequacy of Righthaven’s and Stephens Media’s 2 responses and production, both in writing and during telephone discussions. Righthaven has 3 repeatedly promised dates on which it will produce documents but then failed to deliver anything. 4 To date, Righthaven has failed to produce a single document in response to any of Defendant’s 5 document requests. While Stephens Media has produced a handful of relevant documents, it 6 refuses to produce others that go to the heart of the pending action and Counterclaim. 7 Democratic Underground served its First Sets of Requests for Production of Documents 8 on Righthaven and Stephens Media, respectively on December 17, 2010. See Webb Decl. ¶ 4, 9 Exhs. B, C. Stephens Media served responses on January 18, 2011. Id. ¶ 5, Exh. D. Righthaven 10 served responses on or around January 18, 2011.3 Between January 21, 2011 and February 3, 11 2011, counsel for Defendants contacted counsel for Righthaven and Stephens Media in attempts 12 to arrange a meet and confer call regarding their responses. Id. ¶ 7. After three weeks of delay, 13 on February 10, 2011, counsel for Defendants finally was afforded separate meet and confer calls 14 with Righthaven and with Stephens Media. Id. During those calls, the parties resolved some of 15 Righthaven’s and Stephens Media’s objections, and Defendants agreed to narrow certain requests 16 in scope. Id. ¶ 8. That same day, counsel for Defendants sent Righthaven and Stephens Media 17 letters memorializing their respective meet and confer calls. Id., Exhs. G, H. Defendants sent 18 additional emails clarifying the meet and confer letter on February 16, 2011. Id. ¶ 9, Exhs. I, J. 19 1. 20 Meet and Confer with Stephens Media Stephens Media provided its First Supplemental Responses to Defendants on February 28, 21 2011 along with 14 documents, including the SAA. Id. ¶ 10, Exh. K. Those responses were 22 clearly incomplete. For example, they included only one single email between Stephens Media 23 and Righthaven. Id. Defendants therefore emailed Stephens Media on March 1, 2011 listing 24 several specific categories of documents that Defendants expected to receive in Stephens Media’s 25 3 26 27 28 Righthaven’s responses were due on January 18, 2011, but were postmarked January 19. Despite an agreement between Defendants and Righthaven and Stephens Media to serve by email, Righthaven did not. While the proof of service signed by Shawn Mangano, Righthaven’s counsel, indicates that he personally mailed the documents on January 18, Mr. Mangano later revealed to Defendants’ counsel: “Righthaven was handling their service. If they did not go out electronically, then they may have only gone out via U.S. Mail. I know they were prepared by me and provided to Righthaven to print out and serve.” See Webb Decl. ¶ 6, Exhs. E, F. Defendants did not receive Responses from Righthaven until January 21, 2011, and the envelope was clearly postmarked January 19, 2011, one day after the responses were due. DEFENDANT’S MOTION TO COMPEL 6 CASE NO. 2:10-CV-01356-RLH (GWF) 1 production and asking when Defendants would receive such documents, including:  2 “[T]he Operating Agreement referred to in the Strategic Alliance Agreement (SAA) 3 and the other documents reflecting the integrated transaction for creation of SI Content 4 Monitor and operations of Righthaven  5 6 documents relating to the formation of Righthaven beyond the ultimate SAA (emails, drafts, discussions of structure, etc.)  7 documents relating to the various elections and notices required by the SAA to be 8 made by Stephens Media or Righthaven relating to the News Article, including, e.g., 9 the Searching Decision, the Material Risk Conclusion, The Remediation Option 10 Notice, the Assignment (documents apart from the form already supplied)  11 other documents showing the notification of search results and any communication 12 about them that resulted in the actual decision to and act of assignment.” 13 Id. ¶ 11, Exh. L. Defendants also requested that Stephens Media produce its past-due privilege 14 log. Id. Under this Court’s scheduling order, “[a] party. . . shall submit a detailed privilege log . 15 . . within (21) days following the date that the documents memorialized in the privilege log were 16 to be produced.” Dkt. 54 at 7. Stephens Media’s log was thus due on February 8. 17 After a week, counsel for Stephens Media, Mr. Colby Williams, replied that his 18 understanding was that all documents, aside from the SAA, were in the possession of SI Content 19 Monitor, a subsidiary of Stephens Media’s parent company. Id. ¶ 12, Exh. M. In addition, Mr. 20 Williams stated that he was—apparently for the first time, nearly three months after the service of 21 the document requests—asking Stephens Media’s general counsel, Mr. Hinueber, to review the 22 documents he had. Id. On March 11, 2011, counsel for Defendants emailed Mr. Williams stating 23 that it was surprising that Stephens Media claimed not to have possession of or even access to the 24 Operating Agreement, as that Agreement, according to paragraph 2 of the SAA, was part of the 25 integrated transaction that also included the SAA, to which Stephens Media was a party and 26 which it had produced. Id. ¶ 13, Exh. N.4 On March 17, Mr. Williams stated that he would 27 28 4 Additionally, the SAA imposes obligations on Stephens Media to ensure that SI Content Monitor and Stephens Media have common ownership. SAA ¶ 2. DEFENDANT’S MOTION TO COMPEL 7 CASE NO. 2:10-CV-01356-RLH (GWF) 1 attempt to obtain all the documents requested from SI Content Monitor, and that he would get 2 back to Defendants the next day with an answer. Id. ¶ 14, Exh. O. 3 On March 21, having heard nothing, counsel for Defendants emailed Mr. Williams asking 4 for the status on documents from SI Content Monitor and from Mr. Hinueber, Stephens Media’s 5 general counsel, which Defendants reminded Stephen Media must be included on its overdue 6 privilege log. Id. ¶ 15, Exh. P. On March 22, 2011, Mr. Williams stated that he was able to 7 obtain a copy of the Operating Agreement from SI Content Monitor that he produced along with 8 Stephens Media’s Second Supplemental Responses. Id. ¶ 16, Exh. Q. But he did not produce the 9 remainder of the documents sought. 10 As to the documents in the possession of Mr. Hinueber, Stephens Media’s general 11 counsel, Mr. Williams now admitted that responsive documents existed, but still refused to 12 produce them or to disclose what they were in a privilege log. Id. Mr. Williams stated that he 13 was maintaining the position that the Hinueber documents were “not ‘otherwise discoverable’” 14 based on Stephens Media’s previous written objections to the document requests calling for their 15 production. Id. 16 Counsel for Defendants responded by listing a small subset of the Requests to which 17 Mr. Hinueber’s documents would be relevant and detailing how any purported objection by 18 Stephens Media had already been resolved. Id. ¶ 17, Exh. R. For those categories, the objections 19 had been only (1) that the documents were “confidential”—an issue resolved over a month earlier 20 by entry of a protective order, or (2) that documents might be privileged—which would not have 21 excused production of a privilege log. Id. Nonetheless, Mr. Williams continued to maintain that 22 Stephens Media would not produce the documents unless the Court “rules that any of the subject 23 documents are ‘otherwise discoverable’ despite the asserted objections.” Id. ¶ 18, Exh. S. 24 2. Meet and Confer with Righthaven 25 During the February 10, 2011 meet and confer, Defendants asked that Righthaven 26 reevaluate its relevancy objections to matters that were quite obviously relevant in this action. Id. 27 ¶ 8, Exh. G. For example, Righthaven had objected on relevancy grounds to: documents relating 28 to the creation of Righthaven and its communications with Stephens Media; and documents DEFENDANT’S MOTION TO COMPEL 8 CASE NO. 2:10-CV-01356-RLH (GWF) 1 relating to the method of determining who Righthaven would sue—a process publicly referenced 2 by its head, Steve Gibson. Righthaven responded that it would reevaluate its objection if 3 Defendants provided reasoning for how each of these requests was relevant. Righthaven also 4 agreed to provide supplemental responses by February 20, 2011 and to provide a privilege log 5 and all relevant, responsive non-confidential documents by February 25. Id. Righthaven further 6 agreed to produce confidential documents 7-10 days after entry of the protective order, which was 7 subsequently entered on February 14. Id. 8 Pursuant to Righthaven’s request, and in an effort to have a meaningful meet and confer 9 and resolve these objections, Defendants did provide a detailed list of each objected-to Request 10 and the precise claims and affirmative defenses to which the requests are relevant. It did so 11 despite it being Righthaven’s burden to provide reasoning for its own objections. See Koninklijke 12 Philips Elecs. N.V. v. KXD Tech., Inc., 2007 U.S. Dist. LEXIS 17540, at *12 (D. Nev. March 12, 13 2007) (“the objecting party must specifically detail the reasons why each request is irrelevant”) 14 (emphasis added); Webb Decl. ¶ 8, Exh. G. Righthaven, however, failed to uphold its end of the 15 bargain. Despite Righthaven’s agreement to produce all documents and supplemental responses 16 no later than February 25, it provided nothing at all. Defendants’ counsel emailed Mr. Mangano, 17 counsel for Righthaven, asking when Defendants would be receiving the promised documents, 18 supplemental responses, and a privilege log. Id. ¶ 20, Exh. U. Mr. Mangano replied that he 19 would get back to counsel for Defendants by March 2. Id. ¶ 21, Exh. V. 20 Having again received nothing by March 2, counsel for Defendants emailed Mr. Mangano 21 on March 3 asking for documents and a privilege log and requesting a date certain as to when Mr. 22 Mangano would provide the requested materials. Id. ¶ 23 Exh. X. Mr. Mangano stated that he 23 would produce documents “when they are located” and promised that privileged materials would 24 be included in a privilege log and provided to Defendants. Id. ¶ 24, Exh. Y. Counsel for 25 Defendants again asked for a date certain, and Mr. Mangano refused to provide one, saying “you 26 will get your privilege log shortly,” blaming his delay on his “busy briefing schedule and court 27 appearances” and claiming that counsel for Defendants was refusing to extend “professional 28 courtesy” and driving up litigation costs. Id. ¶¶ 25, 26, Exhs. Z, AA. Righthaven did ultimately DEFENDANT’S MOTION TO COMPEL 9 CASE NO. 2:10-CV-01356-RLH (GWF) 1 produce supplemental responses—but they did not reevaluate or withdraw objections—they 2 actually purported to add more.5 No documents were ever produced—not one. 3 Counsel for Defendants sent a letter to Mr. Mangano on March 10, 2010 detailing the 4 status of the parties’ meet and confer to date and requesting that Mr. Mangano contact counsel for 5 Defendants within a week if he believed any particular disagreement detailed in the letter could 6 potentially benefit from further oral discussion. Id. ¶ 28, Exh. DD. He did not reply. On 7 March 24, 2011, Counsel for Defendants sent another email inquiring about the documents and 8 privilege log that had been originally due February 8, promised for February 25, and then 9 promised for March 3. Id. ¶ 29, Exh. EE. Mr. Mangano has not since replied regarding 10 documents or the privilege log. 11 Righthaven continues to refuse to produce any documents whatsoever, and has still failed 12 to produce the privilege log the Court’s Order required “shall” be produced no later than 13 February 8, 2011. While the parties in this action have agreed to a stay on deposition based 14 discovery pending decisions on pending motions, they explicitly agreed to continue discovery on 15 the requests that were already served prior to the stay. Joint Stipulation and Order to Stay 16 Discovery, Dkt. 71. This is because, when deposition discovery reopens, there will be only 17 approximately six weeks before expert reports are due, and Defendants therefore need to resolve 18 their disputes now. Moreover, the materials being requested by, and withheld from, Defendants 19 are needed now, to fully address these issues in this case and others like it. 20 III. ARGUMENT 21 Under Rule 26, “the scope of discovery is broad[,] and discovery should be allowed unless 22 the information sought has no conceivable bearing on the case.” Jackson v. Montgomery Ward & 23 Co., 173 F.R.D. 524, 528 (D. Nev. 1997). The party resisting discovery carries a “heavy burden” 24 of showing why discovery should not be allowed. Blankenship v. Hearst Corp., 519 F.2d 418, 25 429 (9th Cir. 1975). This burden includes “clarifying, explaining, and supporting its objections.” 26 27 28 5 On March 3, Mr. Mangano informed Defendants that he finally sent Righthaven’s Supplemental Responses. The Supplemental Responses were sent by postal mail, rather than email—a tactic that further delayed receipt of supplementation that had been originally promised for February 20, and despite Defendants requesting on February 23 that Mr. Mangano serve them by email. Id. ¶¶ 19, 27, Exhs. T, CC. DEFENDANT’S MOTION TO COMPEL 10 CASE NO. 2:10-CV-01356-RLH (GWF) 1 DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (citing Blankenship); see also 2 Koninklijke Philips Elecs. N.V., 2007 U.S. Dist. LEXIS 17540, at *12 (“the objecting party must 3 specifically detail the reasons why each request is irrelevant”). 4 5 6 A. Righthaven and Stephens Media Must Produce Documents Related to the Formation of Righthaven. A core issue in this action, and the hundreds of others filed by Righthaven, is whether or 7 not the purported assignment to Righthaven is a sham and champertous. Democratic 8 Underground believes that Righthaven was created as a tool to bring lawsuits on Stephens 9 Media’s behalf, without Stephens Media taking responsibility for them. Defendants assert that 10 Stephens Media intentionally designed the relationship with Righthaven to skirt the copyright 11 laws, create a patina of legitimacy for Righthaven, while providing nothing of value to 12 Righthaven other than the right to sue people. Counterclaim, Dkt. 13, ¶¶ 8-11, 15-17. 13 Defendants contend that under the Ninth Circuit’s decision in Silvers v. Sony Pictures Entm’t, 14 Inc., 402 F.3d 881 (9th Cir. 2005), this relationship between two companies cannot vest 15 Righthaven with the right to sue. Defendants further contend that the structure renders 16 Righthaven merely an agent of Stephens Media, and that Stephens Media is the real party in 17 interest properly subject to Democratic Underground’s Counterclaim—notwithstanding Stephens 18 Media’s insistence that the Counterclaim must be dismissed. Counterclaim, Dkt 13, ¶¶ 33-42. 19 Defendants also contend that the relationship was structured in a manner that constitutes 20 champerty, that is, “maintaining a suit in return for a financial interest in the outcome.” Del 21 Webb Communities, Inc. v. Partington, 2009 WL 3053709, at * 3 (D. Nev. Sept. 18, 2009). 22 In furtherance of these defenses, Defendants served requests on both Stephens Media and 23 Righthaven seeking documents relating to the creation of Righthaven, but have only received one 24 document from Stephens Media in response – the Operating Agreement – which Stephens Media 25 produced only after Defendants identified the document to Stephens Media by name during the 26 meet and confer process. Webb Decl. ¶ 11, Exh. L. This category of documents is directly 27 relevant to Defendants’ affirmative defenses and Counterclaim, especially in light of the few 28 documents produced by Stephens Media, which—even prior to receipt of the actual DEFENDANT’S MOTION TO COMPEL 11 CASE NO. 2:10-CV-01356-RLH (GWF) 1 communications among the founders of Righthaven—suggest that Righthaven was created solely 2 for the purpose of bringing copyright infringement actions. Defendants explained the relevance 3 of these materials in its meet and confer letter to Righthaven on February 10, 2010. Id. ¶ 8, Exh. 4 G. Righthaven and Stephens Media have never met their burden of explaining why these 5 materials should not be produced. Koninklijke Philips Elecs. N.V., 2007 U.S. Dist. LEXIS 17540, 6 at *12. The objections asserted by Righthaven and Stephens Media are neither valid nor clarified, 7 explained or supported, as required by Rule 26. DIRECTV, Inc., 209 F.R.D. at 458. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Local Rule 26-7(a), the full text of the discovery originally sought and the responses thereto appears below: DOCUMENT REQUEST NO. 58 TO RIGHTHAVEN: ALL DOCUMENTS referring or RELATING TO the creation of Righthaven, including, without limitation, ALL COMMUNICATION among its founders and funders. RESPONSE: Righthaven objects to this request on the grounds that the definitions of “DOCUMENTS,” “referring or RELATING TO,” “Righthaven” and “COMMUNICATION” as [sic] vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven further objects to this request as compound, overly broad, vague and ambiguous in its use of the phrases “refer or RELATE TO” and “the creation of Righthaven, including, without limitation, ALL COMMUNICATION among its founders and funders.” Righthaven additionally objects to this request as calling for the production of irrelevant material and has been done solely for the purpose of harassment. Righthaven additionally objects to this request on the grounds that it calls for the production of materials protected from discovery under the attorney work product doctrine and/or attorney client privilege. Moreover, this request may invade the privacy rights of third parties. Righthaven further objects to this request on the ground that it calls for the disclosure of confidential and/or proprietary information and the parties have yet to enter into an agreeable Stipulated Protective Order in this case. As such, no protective order one [sic] has been entered by the Court under which an appropriate confidentiality designation, if any, could be applied to responsive materials to the extent such materials exist. SUPPLEMENTAL RESPONSE: Righthaven supplements its prior response to this request by objecting to it grounds [sic] that that [sic] the definitions of “referring or RELATING TO,” and “COMMUNICATION” as [sic] vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven further objects to this request as compound, overly broad, vague and ambiguous in its use of the phrases “refer or RELATE TO” and “the creation of Righthaven, including, without limitation, ALL COMMUNICATION among its founders and funders.” Righthaven additionally objects to this request as calling for the production of DEFENDANT’S MOTION TO COMPEL 12 CASE NO. 2:10-CV-01356-RLH (GWF) 1 irrelevant material and has been done solely for the purpose of harassment. 2 DOCUMENT REQUEST NO. 41 TO RIGHTHAVEN: ALL COMMUNICATIONS between YOU and Mark Hinueber. 3 RESPONSE: Righthaven objects to this request on the grounds that the definitions of “COMMUNICATIONS” and “YOU”6 are vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven also objects to this request as overly broad as it is not limited to any particular time period. As such, Righthaven objects to this request to the extent it is interpreted to require the production of irrelevant material outside the permissible scope of discovery in this action. Righthaven additionally objects to this request on the grounds that it calls for the production of materials protected from discovery under the attorney work product doctrine and/or attorney client privilege. Moreover, this request may invade the privacy rights of third parties. Righthaven further objects to this request on the ground that it calls for the disclosure of confidential and/or proprietary information and the parties have yet to enter into an agreeable Stipulated Protective Order in this case. As such, no protective order one [sic] has been entered by the Court under which an appropriate confidentiality designation, if any, could be applied to responsive materials to the extent such materials exist. 4 5 6 7 8 9 10 11 12 SUPPLEMENTAL RESPONSE: Righthaven supplements its prior response to this request by objecting to it on the grounds that the definitions [sic] of “COMMUNICATIONS” is vague, ambiguous, overly broad and imposes compliance requirements outside of those authorized under Rule 34. Righthaven objects to this request to the extent it is interpreted to require the production of irrelevant material outside the permissible scope of discovery in this action. Subject to the foregoing, Righthaven is in the process of investigating whether any relevant, responsive material exists and, if so, whether said material should be designated under the Stipulated Protective Order entered in this action. Righthaven will supplement this response and produce, or arrange for the production, of additional responsive material consistent with its obligations under the Federal Rules of Civil Procedure. Righthaven additionally directs Democratic Underground to the July 29, 2010 Assignment and the Strategic Alliance Agreement (Bates Nos. SM00007894), which have been previously produced in this action by Stephens Media. 13 14 15 16 17 18 19 20 21 22 DOCUMENT REQUEST NO. 42 TO RIGHTHAVEN: ALL COMMUNICATIONS between YOU and Jackson Farrow. 23 RESPONSE: Righthaven objects to this request on the grounds that the definitions of “COMMUNICATIONS” and “YOU” are vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven also objects to this request as overly broad as it is not limited to any particular time period. As such, Righthaven objects to this request to the extent it is interpreted to require the production of irrelevant 24 25 26 27 28 6 During the February 10, 2010 meet and confer call, Defendants agreed to limit the definition of “YOU” to mean “Righthaven LLC (i.e. not including those acting on its behalf).” See Webb Decl. ¶ 8, Exh. G. DEFENDANT’S MOTION TO COMPEL 13 CASE NO. 2:10-CV-01356-RLH (GWF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 material outside the permissible scope of discovery in this action. Righthaven additionally objects to this request on the grounds that it calls for the production of materials protected from discovery under the attorney work product doctrine and/or attorney client privilege. Moreover, this request may invade the privacy rights of third parties. Righthaven further objects to this request on the ground that it calls for the disclosure of confidential and/or proprietary information and the parties have yet to enter into an agreeable Stipulated Protective Order in this case. As such, no protective order one [sic] has been entered by the Court under which an appropriate confidentiality designation, if any, could be applied to responsive materials to the extent such materials exist. SUPPLEMENTAL RESPONSE: Righthaven supplements its prior response to this request by objecting to it on the grounds that the definitions [sic] of “COMMUNICATIONS” is vague, ambiguous, overly broad and imposes compliance requirements outside of those authorized under Rule 34. Righthaven objects to this request to the extent it is interpreted to require the production of irrelevant material outside the permissible scope of discovery in this action. Subject to the foregoing, Righthaven is in the process of investigating whether any relevant, responsive material exists and, if so, whether said material should be designated under the Stipulated Protective Order entered in this action. Righthaven will supplement this response and produce, or arrange for the production, of additional responsive material consistent with its obligations under the Federal Rules of Civil Procedure. DOCUMENT REQUEST NO. 36 TO STEPHENS MEDIA: ALL DOCUMENTS referring or RELATING TO the creation of Righthaven, including, without limitation, ALL COMMUNICATION among its founders and funders. RESPONSE: Objection. The foregoing document Request is overbroad and unduly burdensome insofar as it is asking Stephens Media to produce documents from a wholly separate entity. Without waiving the foregoing [objections], Stephens Media is not in possession of responsive documents. SUPPLEMENTAL RESPONSE: Without waiving the foregoing objections, see Righthaven Operating Agreement, Bates Nos. SM000095-161. 21 22 23 24 25 26 27 DOCUMENT REQUEST NO. 53 TO STEPHENS MEDIA: ALL COMMUNICATIONS between YOU and Jackson Farrow. RESPONSE: Objection. The foregoing document Request is overbroad and unduly burdensome as it is not limited in time or scope. The foregoing Document Request seeks material protected by the common interest theory of the attorney-client privilege. See, e.g., Nidec Corp. v. Victor Company of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007). Without waiving the foregoing objections, Stephens Media has not located any non-privileged documents responsive to this Request. To the extent privileged communications responsive to this Request regarding the subject lawsuit exist, Stephens Media will provide an appropriate privilege log. 28 DEFENDANT’S MOTION TO COMPEL 14 CASE NO. 2:10-CV-01356-RLH (GWF) 1 1. 2 3 Documents Relating To The Creation Of Righthaven Are Highly Relevant To Defendants’ Affirmative Defenses And Democratic Underground’s Counterclaim. Rule 26 “has been construed broadly to encompass any matter that bears on, or that 4 reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” 5 Jackson, 173 F.R.D. at 526. Documents relating to Righthaven’s creation are directly relevant to 6 the existence of an agency relationship between Righthaven and Stephens Media and to 7 Defendants’ affirmative defenses of unclean hands, sham license, barratry, champerty and 8 maintenance, and copyright misuse. Dkt 13. 9 Furthermore, the minimal documents produced thus far by Stephens Media have 10 supported Defendants’ claims, further showing that the request encompasses a “matter that bears 11 on, or that reasonably could lead to other matter that could bear on” issues in this case. Jackson, 12 173 F.R.D. at 526. As stated in the SAA, the “integrated transaction” of which the SAA is a part, 13 also included the formation of Righthaven, supporting Defendants’ allegation that Righthaven’s 14 purpose is to bring copyright infringement actions, as repeatedly alleged in Defendant Democratic 15 Underground’s pleadings in this action. Dkts. 13, 44, 45, 79. The integrated transaction further 16 suggests that Righthaven has no legitimate ownership interest in the News Article, that the 17 purported copyright assignment was a sham, and that Righthaven exists solely to pursue lawsuits 18 under the guise that Righthaven is the copyright owner. 19 Defendants thus rightly believe that the candid emails, correspondence, drafts, and other 20 communications about formation of Righthaven are likely to provide further evidence supporting 21 the sham purpose of its creation and the “Assignment.” In light of this information, there is no 22 justification for Righthaven’s claim that documents relating to its formation are irrelevant and 23 undiscoverable. 24 2. Righthaven Has Not Met Its Burden Of Showing That Information Related To The Formation Of Righthaven Is Not Discoverable. 25 26 “The party who resists discovery has the burden to show that discovery should not be 27 allowed, and has the burden of clarifying, explaining, and supporting its objections.” DIRECTV, 28 Inc., 209 F.R.D. at 458. Righthaven has made no such showing. Righthaven made four initial DEFENDANT’S MOTION TO COMPEL 15 CASE NO. 2:10-CV-01356-RLH (GWF) 1 objections, none of which justifies withholding materials. 2 First, as to relevance, as just explained, this objection was frivolous from the start. 3 Second, as to confidentiality, a protective order has been in place since February. 4 Third, as to objection based on privilege, a log was long ago required, and as discussed 5 below, failure to produce one has waived any continuing privilege. Furthermore, Request 58 6 seeks more than just privileged communications, as it explicitly includes “all communications 7 among its founders and funders,” which necessarily calls for production of non-privileged 8 information, as the parties were adverse in negotiating the SAA. See SAA ¶¶ 9.10-9.12. 9 Fourth, as to “vagueness and ambiguity,” there is nothing vague about a request for 10 communications about the formation of Righthaven, including between its founders and funders. 11 If those objections ever had any merit, they were resolved in the initial meet and confer call on 12 February 10, 2011. Webb Decl. ¶ 8, Exh. G. In its follow up letter to Righthaven after the initial 13 meet and confer, Democratic Underground noted that, with respect to Righthaven’s objections as 14 to “vague and ambiguous” phrasing, using standard dictionary definitions of the words, the 15 request are not so ambiguous that Righthaven cannot, in good faith, “frame an intelligent reply.” 16 Marchand v. Mercy Med. Ctr., 22 F.3d 933, 938 (9th Cir. 1994). Righthaven should have given a 17 plain dictionary meaning to the terms. Moreover, if Righthaven wished to maintain such 18 objections following multiple meet and confer efforts, Righthaven had to propose good faith 19 alternative wording. Id.; see also Gracenote v. Musicmatch, Inc., 2003 U.S. Dist. LEXIS 26015, 20 at * 13 (N.D. Cal Oct. 14, 2003). To the contrary, Righthaven simply refused to respond to 21 Defendants, and continues to refuse to produce documents. Accordingly, Righthaven has no 22 objections to stand on. 23 24 25 3. Righthaven and Stephens Media Have Improperly Failed to Produce Relevant Documents. Righthaven has failed to produce a single communication in response to Request Nos. 41 26 (for its communications with Mr. Hinueber, Stephens Media’s general counsel) and 42 (for its 27 communications with Mr. Farrow, general counsel for SI Content Monitor). As to 28 communications with Mr. Hinueber, the SAA was signed by Steven Gibson as the representative DEFENDANT’S MOTION TO COMPEL 16 CASE NO. 2:10-CV-01356-RLH (GWF) 1 for Righthaven LLC, and by Mark Hinueber as the representative for Stephens Media LLC. SAA 2 at 10. The parties must have had communications leading up to the execution of the SAA, yet not 3 one has been produced or logged. Further, Mr. Hinueber has publicly stated that he had the 4 ability to stop Righthaven from bringing lawsuits. Webb Decl. ¶ 30, Exh. FF. There is little 5 questions that he communicated with Righthaven’s assignee in the process of pursuit of lawsuits 6 about the assigned interests. 7 8 9 10 11 12 As to communications with Jackson Farrow, general counsel for SI Content Monitor, the SAA reveals that SI Content Monitor is party to the Operating Agreement forming Righthaven: The parties hereby covenant that this Agreement is part of an integrated transaction with the transaction (the “Righthaven Transaction”) represented by the formation of Righthaven and the corresponding Operating Agreement by and amongst Net Sortie Systems, LLC, a Nevada limited-liability company (“Net Sortie”), Righthaven and the Stephens Media’s [sic] affiliated company, SI Content Monitor LLC[.]” SAA ¶ 2. 13 Yet, neither Righthaven nor Stephens Media has produced or logged a single communication with 14 Jackson Farrow. Presumably there were discussions leading up to the formation of Righthaven 15 which would have included Mr. Farrow, given SI Content Monitor’s involvement in its 16 formation. And to the extent that Stephens Media has taken the position that communications 17 about the assignment are in the possession of SI Content Monitor, not itself (Webb Decl. ¶ 12, 18 Exh. M), Mr. Farrow is the probable participant. 19 20 21 22 23 24 Accordingly, Righthaven and Stephens Media should be ordered to produce within ten days all documents in the categories identified. 4. Stephens Media Has Admitted It Is In Possession Of Relevant Documents Which It Is Withholding Based On Its “Previously Asserted Objections” Despite Asserting In Its Responses That It Is Not In Possession Of Responsive Documents. Stephens Media’s only objection to Request No. 36 about formation of Righthaven reads: 25 “The foregoing document Request is overbroad and unduly burdensome insofar as it is asking 26 Stephens Media to produce documents from a wholly separate entity” (emphases added). In 27 other words, it objected that it need not produce documents to the extent they were in the 28 possession of others. Stephens Media’s next sentence stated: “Without waiving the foregoing DEFENDANT’S MOTION TO COMPEL 17 CASE NO. 2:10-CV-01356-RLH (GWF) 1 objections, Stephens Media is not in possession of responsive documents” (emphasis added). A 2 month and a half later, however, Stephens Media revealed that its initial response was false—that 3 it actually is in possession of responsive documents found by Mr. Hinueber, but is withholding 4 them. Webb Decl. ¶ 16, Exh. Q. Nonetheless, Stephens Media still refuses to produce these 5 documents or disclose them in a privilege log, instead asserting its position that such documents 6 are “not ‘otherwise discoverable’” based on Stephens Media’s previously asserted objections. Id. 7 ¶ 18, Exh. S. But this objection was only applicable “insofar as” the documents were in another 8 entity’s possession. Id. ¶ 10, Exh. K. Stephens Media’s possession of relevant documents 9 renders its objection moot, and renders its refusal to produce utterly improper. 10 Moreover, as Stephens Media has demonstrated by production of the Operating 11 Agreement, it is able to obtain relevant documents in SI Content Monitor’s control as well. 12 Request No. 53 seeks all communications between Stephens Media and Jackson Farrow, SI 13 Content Monitor’s general counsel. As discussed below in Section III.C, Stephens Media has 14 waived its objection as to privilege, its only objection to this Request. Thus, Stephens Media 15 should be ordered to produce all responsive documents from SI Content Monitor, not merely the 16 Operating Agreement, and it should include any documents claimed to be privileged but not 17 timely logged in this case. 18 B. 19 Righthaven and Stephens Media Must Produce Documents Related to The Assignment of Rights In The News Article, Including Communications About the SAA. 20 Equally as relevant to the claims and defenses in this action are documents relating to the 21 assignment of rights in the News Article, including communications relating to and called for 22 under the SAA. The SAA contemplates: (i) that Stephens Media would make a “Searching 23 Decision” about searches for potential copyrights to be enforced (¶ 3.1); (ii) that Stephens Media 24 would make a “Material Risk Conclusion” in relation to assignment of copyrights (id.); (iii) that 25 Righthaven would provide an “Infringement Notice” to Stephens Media prompting assignment of 26 copyrights (id.); (iv) that Stephens Media would provide a “Copyright Assignment Notice” 27 within five days of each assignment, triggering duties by Righthaven (¶ 7.1); (v) that Righthaven 28 would supply a “Remediation Option Notice” of its intention to sue or not on infringed copyrights DEFENDANT’S MOTION TO COMPEL 18 CASE NO. 2:10-CV-01356-RLH (GWF) 1 (¶ 3.3); (vi) that Stephens Media would have a right to supply a “Declination Notice” preventing 2 suit within five days of receipt of the “Remediation Option Notice” (id.); and (vii) that Stephens 3 Media would cooperate fully with Righthaven with respect to the Infringement Action (¶ 9.6). 4 Presumably there would also be emails or other written records of communications between 5 Righthaven and Stephens Media (or its subsidiaries) reflecting these activities. All of this 6 information relating to that assignment is undoubtedly within the scope of Rule 26 discovery. 7 None of it has been produced. 8 9 Democratic Underground’s First Requests for Production of Documents contain several requests encompassing these topics. As to Stephens Media, though all objections have been 10 resolved during the meet and confer process, it has only produced the SAA and one 11 “Assignment,” without any of the surrounding documents or communications, internal or with 12 Righthaven. In addition, though the SAA controls the relationship at issue, Stephens Media has 13 failed to produce any documents leading up to the SAA, or negotiating terms in the SAA, nor has 14 it produced a privilege log identifying such communications. 15 Righthaven’s response has been even worse. It has not produced any documents 16 whatsoever, in blatant disregard of the discovery process as well as its own repeated 17 commitments that it would be producing documents. 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Local Rule 26-7(a), the full text of the discovery originally sought and the responses thereto appears below: DOCUMENT REQUEST NO. 3 TO RIGHTHAVEN: ALL DOCUMENTS concerning any potential or actual assignment of rights in the NEWS ARTICLE to Righthaven. RESPONSE: Righthaven objects to this request on the grounds that the definitions of “DOCUMENTS” and “Righthaven” are vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven also objects to this request as vague, ambiguous and compound in it [sic] use of the phrase “concerning any potential or actual assignment of the rights.” Righthaven additionally objects to this request on the grounds that it calls for the production of materials protected from discovery under the attorney work product doctrine and/or attorney client privilege. Righthaven further objects to this request on the ground that it potentially calls for the disclosure of confidential and/or proprietary information and the parties have yet to enter into an agreeable Stipulated Protective Order in this case. As such, no protective order one [sic] has DEFENDANT’S MOTION TO COMPEL 19 CASE NO. 2:10-CV-01356-RLH (GWF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 been entered by the Court under which an appropriate confidentiality designation, if any, could be applied to responsive materials to the extent such materials exist. Subject to the foregoing objections, Righthaven has attached materials to the Complaint and to publicly available filings in this matter that are potentially responsive to this request. These materials are already in the possession of Democratic Underground’s counsel. If required, Righthaven will make these same materials available for inspection and copying or otherwise arrange for their production. SUPPLEMENTAL RESPONSE: Righthaven supplements it [sic] prior response to this request by directing Democratic Underground to the materials attached to the Complaint and to the materials attached to its publicly available filings in this matter, which contain materials responsive to this request. These materials are already in the possession of Democratic Underground’s counsel. If required, Righthaven will make these same materials available for inspection and copying or otherwise arrange for their production. Righthaven is in the process of reviewing potentially responsive material to this request for designation under the Stipulated Protective Order entered in this action. Righthaven will produce any materials designated by it or make such designated materials available for inspection and copying on a mutually agreeable date and time. Should Righthaven locate any additional materials responsive to this request during the course of litigation, it will supplement this response and make said materials available for inspection and copying or otherwise arrange for their production following their review for appropriate designation under the Stipulated Protective Order. Righthaven additionally directs Democratic Underground to the July 19, 2010 Assignment and the Strategic Alliance Agreement (Bates Nos. SM 000078-94), which have been previously produced in this action by Stephens Media. 17 18 19 20 21 22 23 24 25 26 27 DOCUMENT REQUEST NO. 3 TO STEPHENS MEDIA: ALL DOCUMENTS concerning any assignment of rights in the NEWS ARTICLE to Righthaven. RESPONSE: Objection. The information sought by this Document Request seeks confidential business and/or commercially sensitive information. Additionally, to the extent any [such] information sought by this Document Request is the subject of legitimate discovery in this action, Stephens Media will only produce such information once a binding protective order is in place. Plaintiff/Counterdefendant Righthaven, LLC drafted a proposed protective order and sent it to DU for its comments on December 7, 2010. DU did not respond until two judicial days before the due date for these Responses. Without waiving the foregoing objections, see July 19, 2010 Assignment and News Article previously produced herein. SUPPLEMENTAL RESPONSE: Without waiving the foregoing objections, see Strategic Alliance Agreement, Bates Nos. SM000078-94. 28 DEFENDANT’S MOTION TO COMPEL 20 CASE NO. 2:10-CV-01356-RLH (GWF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DOCUMENT REQUEST NO. 4 TO RIGHTHAVEN: ALL DOCUMENTS reflecting any COMMUNICATIONS between Righthaven and any other PERSON or entity RELATING TO assignment or reversion of rights in the NEWS ARTICLE. RESPONSE: Righthaven objects to this request on the grounds that the definitions of “DOCUMENTS,” “COMMUNICATIONS,” “Righthaven,” “PERSON,” and “RELATING TO” are vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven also objects to this request as vague, ambiguous and compound in it [sic] use of the phrases “reflecting any” and “assignment or reversion rights.” Righthaven additionally objects to this request on the grounds that it calls for the production of materials protected from discovery under the attorney work product doctrine and/or attorney client privilege. Righthaven further objects to this request on the ground that it potentially calls for the disclosure of confidential and/or proprietary information and the parties have yet to enter into an agreeable Stipulated Protective Order in this case. As such, no protective order one [sic] has been entered by the Court under which an appropriate confidentiality designation, if any, could be applied to responsive materials to the extent such materials exist. Subject to the foregoing objections, Righthaven has attached materials to the Complaint and to publicly available filings in this matter that are potentially responsive to this request. These materials are already in the possession of Democratic Underground’s counsel. If required, Righthaven will make these same materials available for inspection and copying or otherwise arrange for their production. SUPPLEMENTAL RESPONSE: Righthaven supplements its prior response to this request by objecting to it on the grounds that the definitions of “COMMUNICATIONS,” and “RELATING TO” are vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven also objects to this request as vague, ambiguous and compound in it [sic] use of the phrases “reflecting any” and “assignment or reversion rights.” Subject to the foregoing, Righthaven supplements it [sic] prior response to this request by directing Democratic Underground to the materials attached to the Complaint and to the materials attached to its publicly available filings in this matter, which contain materials responsive to this request. These materials are already in the possession of Democratic Underground’s counsel. If required, Righthaven will make these same materials available for inspection and copying or otherwise arrange for their production. Righthaven is in the process of reviewing potentially responsive material to this request for designation under the Stipulated Protective Order entered in this action. Righthaven will produce any materials designated by it or make such designated materials available for inspection and copying on a mutually agreeable date and time. Should Righthaven locate any additional materials responsive to this request during the course of litigation, it will supplement this response and make said materials available for inspection and copying or otherwise arrange for the production following their review for appropriate designation under the Stipulated Protective Order. Righthaven additionally directs Democratic Underground to the July 19, DEFENDANT’S MOTION TO COMPEL 21 CASE NO. 2:10-CV-01356-RLH (GWF) 1 2 3 4 5 6 7 8 9 10 2010 Assignment and the Strategic Alliance Agreement (Bates Nos. SM 000078-94), which have been previously produced in this action by Stephens Media. DOCUMENT REQUEST NO. 4 TO STEPHENS MEDIA: ALL DOCUMENTS reflecting any COMMUNICATIONS between Righthaven and any other PERSON or entity, including YOU, RELATING TO assignment or reversion of rights in the NEWS ARTICLE. RESPONSE: Objection. The information sought by this Document Request seeks confidential business and/or commercially sensitive information. Additionally, to the extent any [such] information sought by this Document Request is the subject of legitimate discovery in this action, Stephens Media will only produce such information once a binding protective order is in place. Plaintiff/Counterdefendant Righthaven, LLC drafted a proposed protective order and sent it to DU for its comments on December 7, 2010. DU did not respond until two judicial days before the due date for these Responses. The Document Request also seeks material that may be protected by the attorney-client and work product privileges. 11 12 13 14 15 16 17 18 19 20 21 22 Without waiving the foregoing objections, Stephens Media is not aware of any documents responsive to this Request but will supplement the same upon the entry of a Stipulated Protective Order if responsive documents are located. DOCUMENT REQUEST NO. 10 TO RIGHTHAVEN: ALL DOCUMENTS that refer or RELATE TO any “right of reversion” referenced in the JULY 19, 2010 ASSIGNMENT. RESPONSE: Righthaven objects to this request on the grounds that the definitions of “DOCUMENTS” and “refer or RELATE TO” are vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven additionally objects to this request on the grounds that it calls for the production of materials protected from discovery under the attorney work product doctrine and/or attorney client privilege. Righthaven further objects to this request on the ground that it potentially calls for the disclosure of confidential and/or proprietary information and the parties have yet to enter into an agreeable Stipulated Protective Order in this case. As such, no protective order one [sic] has been entered by the Court under which an appropriate confidentiality designation, if any, could be applied to responsive materials to the extent such materials exist. 23 24 25 26 27 28 Subject to the foregoing objections, Righthaven has attached materials to the Complaint and to publicly available filings in this matter that are potentially responsive to this request. These materials are already in the possession of Democratic Underground’s counsel. If required, Righthaven will make these same materials available for inspection and copying or otherwise arrange for their production. SUPPLEMENTAL RESPONSE: Righthaven supplements its prior response to this request by objecting to it on the grounds that the phrase “refer or RELATE TO” is vague, DEFENDANT’S MOTION TO COMPEL 22 CASE NO. 2:10-CV-01356-RLH (GWF) 1 ambiguous, overly broad and impose [sic] compliance requirements outside of those authorized under Rule 34. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Subject to the foregoing, Righthaven additionally directs Democratic Underground to the July 19, 2010 Assignment and the Strategic Alliance Agreement (Bates Nos. SM 000078-94), which have been previously produced in this action by Stephens Media. Righthaven is presently unaware of the existence of any additional materials responsive to this request. Righthaven will supplement this response and produce, or arrange for the production, of additional responsive material consistent with its obligations under the Federal Rules of Civil Procedure. DOCUMENT REQUEST NO. 41 TO RIGHTHAVEN: ALL COMMUNICATIONS between YOU and Mark Hinueber. RESPONSE: Righthaven objects to this request on the grounds that the definitions of “COMMUNICATIONS” and “YOU” are vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven also objects to this request as overly broad as it is not limited to any particular time period. As such, Righthaven objects to this request to the extent it is interpreted to require the production of irrelevant material outside the permissible scope of discovery in this action. Righthaven additionally objects to this request on the grounds that it calls for the production of materials protected from discovery under the attorney work product doctrine and/or attorney client privilege. Moreover, this request may invade the privacy rights of third parties. Righthaven further objects to this request on the ground that it calls for the disclosure of confidential and/or proprietary information and the parties have yet to enter into an agreeable Stipulated Protective Order in this case. As such, no protective order one [sic] has been entered by the Court under which an appropriate confidentiality designation, if any, could be applied to responsive materials to the extent such materials exist. SUPPLEMENTAL RESPONSE: Righthaven supplements its prior response to this request by objecting to it on the grounds that the definitions [sic] of “COMMUNICATIONS” is vague, ambiguous, overly broad and imposes compliance requirements outside of those authorized under Rule 34. Righthaven objects to this request to the extent it is interpreted to require the production of irrelevant material outside the permissible scope of discovery in this action. Subject to the foregoing, Righthaven is in the process of investigating whether any relevant, responsive material exists and, if so, whether said material should be designated under the Stipulated Protective Order entered in this action. Righthaven will supplement this response and produce, or arrange for the production, of additional responsive material consistent with its obligations under the Federal Rules of Civil Procedure. Righthaven additionally directs Democratic Underground to the July 29, 2010 Assignment and the Strategic Alliance Agreement (Bates Nos. SM00007894), which have been previously produced in this action by Stephens Media. 27 28 DOCUMENT REQUEST NO. 42 TO RIGHTHAVEN: ALL COMMUNICATIONS between YOU and Jackson Farrow. DEFENDANT’S MOTION TO COMPEL 23 CASE NO. 2:10-CV-01356-RLH (GWF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 RESPONSE: Righthaven objects to this request on the grounds that the definitions of “COMMUNICATIONS” and “YOU” are vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven also objects to this request as overly broad as it is not limited to any particular time period. As such, Righthaven objects to this request to the extent it is interpreted to require the production of irrelevant material outside the permissible scope of discovery in this action. Righthaven additionally objects to this request on the grounds that it calls for the production of materials protected from discovery under the attorney work product doctrine and/or attorney client privilege. Moreover, this request may invade the privacy rights of third parties. Righthaven further objects to this request on the ground that it calls for the disclosure of confidential and/or proprietary information and the parties have yet to enter into an agreeable Stipulated Protective Order in this case. As such, no protective order one [sic] has been entered by the Court under which an appropriate confidentiality designation, if any, could be applied to responsive materials to the extent such materials exist. SUPPLEMENTAL RESPONSE: Righthaven supplements its prior response to this request by objecting to it on the grounds that the definitions [sic] of “COMMUNICATIONS” is vague, ambiguous, overly broad and imposes compliance requirements outside of those authorized under Rule 34. Righthaven objects to this request to the extent it is interpreted to require the production of irrelevant material outside the permissible scope of discovery in this action. Subject to the foregoing, Righthaven is in the process of investigating whether any relevant, responsive material exists and, if so, whether said material should be designated under the Stipulated Protective Order entered in this action. Righthaven will supplement this response and produce, or arrange for the production, of additional responsive material consistent with its obligations under the Federal Rules of Civil Procedure. DOCUMENT REQUEST NO. 10 TO STEPHENS MEDIA: ALL DOCUMENTS that refer or RELATE TO any “right of reversion” referenced in the JULY 19, 2010 ASSIGNMENT. RESPONSE: Objection. The information sought by this Document Request seeks confidential business and/or commercially sensitive information. Additionally, to the extent any such information is sought by this Document Request is the subject of legitimate discovery in this action, Stephens Media will only produce such information once a binding protective order is in place. Plaintiff/Counterdefendant Righthaven, LLC drafted a proposed protective order and sent it to DU for its comments on December 7, 2010. DU did not respond until two judicial days before the due date for these Responses. Without waiving the foregoing objections, see July 19, 2010 Assignment previously produced herein. SUPPLEMENTAL RESPONSE: Without waiving the foregoing objections, see Strategic Alliance Agreement, Bates Nos. SM000078-94. 28 DEFENDANT’S MOTION TO COMPEL 24 CASE NO. 2:10-CV-01356-RLH (GWF) 1 DOCUMENT REQUEST NO. 53 TO STEPHENS MEDIA: ALL COMMUNICATIONS between YOU and Jackson Farrow. 2 RESPONSE: Objection. The foregoing document Request is overbroad and unduly burdensome as it is not limited in time or scope. The foregoing Document Request seeks material protected by the common interest theory of the attorney-client privilege. See, e.g., Nidec Corp. v. Victor Company of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007). Without waiving the foregoing objections, Stephens Media has not located any non-privileged documents responsive to this Request. To the extent privileged communications responsive to this Request regarding the subject lawsuit exist, Stephens Media will provide an appropriate privilege log. 3 4 5 6 7 8 9 DOCUMENT REQUEST NO. 69 TO STEPHENS MEDIA: ALL DOCUMENTS that refer or RELATE TO the facts underlying YOUR statement on page 2 of Docket 38 that “Stephens Media’s involvement with Righthaven…is limited to its role as the assignor of the subject copyright.” 10 RESPONSE: Objection. The information sought by this Document Request seeks confidential business and/or commercially sensitive information. Additionally, to the extent any [such] information sought by this Document Request is the subject of legitimate discovery in this action, Stephens Media will only produce such information once a binding protective order is in place. Plaintiff/Counterdefendant Righthaven, LLC drafted a proposed protective order and sent it to DU for its comments on December 7, 2010. DU did not respond until two judicial days before the due date for these Responses. Without waiving the foregoing objections, see July 19, 2010 Assignment and News Article previously produced herein. 11 12 13 14 15 16 SUPPLEMENTAL RESPONSE: Without waiving the foregoing objections, see Strategic Alliance Agreement, Bates Nos. SM000078-94. 17 18 19 1. Stephens Media’s Confidentiality Objections Are Moot Since Entry of the Stipulated Protective Order. 20 Stephens Media’s sole objection to the four requests above, which each seek information 21 relevant to the assignment of the News Article at issue in this action, is that a protective order had 22 not been entered in this case. Since entry of the Stipulated Protective Order on February 14, 23 2010, this objection is moot. Dkt. 65; see Koninklijke Philips Elecs. N.V, 2007 U.S. Dist. LEXIS 24 17540, at *15 (“a stipulated protective order regarding the production of confidential and 25 proprietary information has been entered in this case. Therefore Defendants’ objection to 26 producing documents based on the proprietary or confidential nature of the requested information 27 [is] overruled, and Defendants are required to produce relevant documents or information”). 28 It is inconceivable that Stephens Media does not have additional responsive documents, DEFENDANT’S MOTION TO COMPEL 25 CASE NO. 2:10-CV-01356-RLH (GWF) 1 given those specifically required to be created by Stephens Media or to be sent to Stephens Media 2 under the SAA. See SAA, ¶¶ 3.1, 3.3, 7.1. If it claims that it does not possess such documents 3 because they are in the hands of “SI Content Monitor,” this could only be by virtue of SI Content 4 Monitor acting as Stephens’ Media’s agent under the SAA—a relationship that certainly allows 5 Stephens Media to obtain and produce the documents itself (as it did with the Operating 6 Agreement). Accordingly, the Court should order Stephens Media to produce all documents in 7 its possession, custody and control within ten days of its order, including those in the possession 8 of SI Content Monitor, responsive to these requests. 9 10 2. Righthaven Has Improperly Failed to Produce Relevant Documents. In its Supplemental Responses, Righthaven engages in a game of “directing Defendants” 11 to the SAA document produced by Stephens Media and to documents attached to its pleadings, 12 without actually producing any documents. Righthaven’s response also claims it will produce 13 documents it chooses to “designate”—notably, not all responsive documents—at a date uncertain, 14 depending on when it chooses to review them. Webb Decl. ¶ 27, Exh. CC. Righthaven has had 15 long enough—over four months—to locate and review documents. Righthaven’s assertion that it 16 will produce documents on a “mutually agreeable date and time” is demonstrably false. 17 Righthaven previously chose, unilaterally, the dates for its compliance, but then failed, 18 repeatedly, to meet even its own schedule. Id. Righthaven’s last “promise” of a date to provide 19 documents was that it would provide them “when they are located.” Id. ¶ 24, Exh. Y. 20 Defendants have been more than patient; there is no excuse for such game playing in this case. 21 22 23 Accordingly, Righthaven should be ordered to produce within ten days all documents in the categories identified. C. 24 Righthaven and Stephens Media Have Waived Their Objections Based on the Attorney-Client or Work-Product Privileges By Failing To Produce A Privilege Log. 25 This Court has repeatedly held that where, as here, a party fails to produce a privilege log, 26 that party’s objections based on privilege are waived. See Koninklijke Philips Elecs. N.V., 2007 27 U.S. Dist. LEXIS 17540, at * 14 (Foley, J.); Akers v. Keszei, 2009 U.S. Dist. LEXIS 106247, at * 28 8-9 (D. Nev. Oct. 27, 2009) (Foley, J.). The “party asserting the attorney-client privilege has the DEFENDANT’S MOTION TO COMPEL 26 CASE NO. 2:10-CV-01356-RLH (GWF) 1 burden of making a prima facie showing that the privilege protects the information” and must 2 produce a privilege log or affidavits supporting application of the work product doctrine or 3 demonstrating attorney-client privilege. Koninklijke Philips Elecs., 2007 U.S. Dist. LEXIS 4 17540, at *14. Where Defendants do not provide privilege logs or affidavits supporting their 5 generalized objections based on privilege, the party waives its privilege objections. Id.; Akers, 6 2009 U.S. Dist. LEXIS 106247, at *8-9, n. 2 (finding plaintiff’s privilege objection waived as 7 improper where plaintiff had not produce a privilege log). 8 9 Beyond this general obligation to produce a log, however, the failure of Stephens Media and Righthaven in this case is also a direct violation of the Court’s scheduling order, which 10 specifically ordered production of a log no later than February 8. See Order, Dkt. 54 (“A party. . . 11 shall submit a detailed privilege log detailing the nature of the privilege or the basis for the item’s 12 or items’ protection as trial preparation material. Such a privilege log shall be limited to 13 communications prior to the commencement of this action, and shall be produced within (21) 14 days following the date that the documents memorialized in the privilege log were to be produced 15 by the party from whom discovery is being sought.”). Because generalized objections are 16 improper without submission of a privilege log, Righthaven and Stephens Media have waived all 17 objections based on privilege, and the Court should so order on this motion. Koninklijke Philips 18 Elecs., 2007 U.S. Dist. LEXIS 17540 at *14. 19 That the waiver here should be enforced finds further support in two other facts. First, 20 Defendants are not belatedly springing some trap upon Righthaven or Stephens Media; rather 21 Defendants have been requesting privilege logs for three months, repeatedly reminding of the 22 Court’s prior order, only to have Righthaven and Stephens Media thumb their noses. See, e.g., 23 Webb Decl. ¶¶ 8, 11, 13, 17, 19, 20, 22, 23, 25, 28, 29, Exhs. G, H, L, N, R, T, U, W, X, Z, DD, 24 EE. Second, the deliberate stalling of resolution of privilege issues has been in pursuit of tactical 25 advantage. Both Righthaven and Stephens Media apparently hoped to shield the nature of their 26 relationship behind a claim of “common interest” privilege—apparently including within that 27 privilege communications about the formation of Righthaven and the assignments that 28 Defendants assert are a sham. Id. ¶¶ 10, 18, Exhs. K, S. But they have a problem doing so: to DEFENDANT’S MOTION TO COMPEL 27 CASE NO. 2:10-CV-01356-RLH (GWF) 1 claim joint conduct further substantiates Defendants’ claim of agency and sham and undermines 2 their claim that they were engaged in any sort of arms’ length, genuine transaction. Despite 3 Defendants’ Requests for documents that might substantiate or refute their common interest, 4 Righthaven and Stephens Media have failed to produce any responsive documents. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Local Rule 26-7(a), the full text of the discovery originally sought and the responses thereto appears below: DOCUMENT REQUEST NO. 7 TO RIGHTHAVEN: ALL DOCUMENTS concerning any joint defense, common interest, or other agreements for cooperation in litigation or preservation of privileges between Righthaven and Stephens Media. RESPONSE: Righthaven objects to this request on the grounds that the definitions of “DOCUMENTS,” “Righthaven,” and “Stephens Media” are vague, ambiguous, overly broad and impose compliance requirements outside of those authorized under Rule 34. Righthaven also objects to this request as vague, ambiguous and compound in its use of the phrases “concerning any,” “joint defense, common interest, or other agreements for cooperation in litigation” and “or preservation of privileges.” Righthaven additionally objects to this request on the grounds that it calls for the production of materials protected from discovery under the attorney work product doctrine and/or attorney client privilege. Righthaven further objects to this request on the grounds that it potentially calls for the disclosure of confidential and/or proprietary information and the parties have yet to enter into an agreeable Stipulated Protective Order in this case. As such, no protective order one [sic] has been entered by the Court under which an appropriate confidentiality designation, if any, could be applied to responsive materials to the extent such materials exist. SUPPLEMENTAL RESPONSE: Righthaven supplements it [sic] response to this request by objecting to it as vague, ambiguous and compound in it [sic] use of the phrases “concerning any,” “joint defense, common interest, or other agreements for cooperation in litigation” and “preservation of privileges.” Subject to these objections, Righthaven is reviewing material in its possession that may be responsive to this request. Righthaven will produce, or make available for inspection and copying, any material deemed to be responsive to this request after it is [sic] been assigned an appropriate designation, if any, under the Stipulated Protective Order entered in this action. DOCUMENT REQUEST NO. 7 TO STEPHENS MEDIA: ALL DOCUMENTS concerning any joint defense, common interest, or other agreements for cooperation in litigation or preservation of privileges between Righthaven and Stephens Media. RESPONSE: Objection. The foregoing document Request seeks material protected by the common interest theory of the attorney-client privilege. See, e.g., Nidec Corp. v. Victor Company of Japan, 249 F.R.D. 575, 578 (N.D. Cal. DEFENDANT’S MOTION TO COMPEL 28 CASE NO. 2:10-CV-01356-RLH (GWF) 1 2007). Without waiving the foregoing objections, Stephens Media has not located any non-privileged documents responsive to this Request. To the extent privileged communications responsive to this Request regarding the subject lawsuit exist, Stephens Media will provide an appropriate privilege log. 2 3 4 Despite responding that they would produce and/or log documents responsive to this 5 Request, Stephens Media and Righthaven have refused to produce any such documents or to 6 provide a privilege log. By refusing even to identify what privileges were being claimed, and as 7 to what documents, Righthaven and Stephens Media intentionally halt the difficult process for 8 resolving those issues. The just consequence for such conduct is to treat the privilege as waived. 9 IV. 10 CONCLUSION For these reasons, Defendant Democratic Underground respectfully requests that this 11 Court grant Defendant’s Motion to Compel Production of Documents from Stephens Media on 12 Requests 3, 4, 7, 10, 36, 53 and 69 and from Righthaven on Requests 3, 4, 7, 10, 41, 42 and 58. 13 The Court should order all documents in their possession, custody and control, including those in 14 the control of their agents including SI Content Monitor, produced within ten days of its order. 15 And the Court should order that all privileges have been waived as to these categories and as to 16 any responsive materials within the scope of the Court’s order. 17 Dated: April 28, 2011 FENWICK & WEST LLP 18 19 By: 20 /s/ Clifford C. Webb CLIFFORD C. WEBB Attorneys for Defendant and Counterclaimant DEMOCRATIC UNDERGROUND, LLC, and Defendant DAVID ALLEN 21 22 23 24 25 26 27 28 DEFENDANT’S MOTION TO COMPEL 29 CASE NO. 2:10-CV-01356-RLH (GWF)

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