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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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, 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

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Page

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NOTICE OF MOTION AND MOTION TO COMPEL ................................................................. 1 

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LOCAL RULE 26-7(B) CERTIFICATION ................................................................................... 1 

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MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 2 

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I.

INTRODUCTION .............................................................................................................. 2 

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II.

FACTUAL BACKGROUND ............................................................................................. 3 

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A.

Case Overview ........................................................................................................ 3 

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B.

Background of the Present Discovery Dispute ....................................................... 5 

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1.

Meet and Confer with Stephens Media ....................................................... 6 

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2.

Meet and Confer with Righthaven .............................................................. 8 

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13

III.

ARGUMENT .................................................................................................................... 10 
A.

Righthaven and Stephens Media Must Produce Documents Related to the
Formation of Righthaven ...................................................................................... 11 

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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 

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Righthaven and Stephens Media Must Produce Documents Related to The
Assignment of Rights In The News Article, Including Communications
About the SAA ...................................................................................................... 18 

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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 

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B.

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26
C.
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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 

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DEFENDANT’S MOTION TO COMPEL

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

TABLE OF CONTENTS
(Continued)

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Page

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IV.

CONCLUSION ................................................................................................................. 29 

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DEFENDANT’S MOTION TO COMPEL

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

TABLE OF AUTHORITIES

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Page(s)

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CASES

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Akers v. Keszei,
2009 U.S. Dist. LEXIS 106247 (D. Nev. Oct. 27, 2009) (Foley, J.) ................................ 26, 27

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Blankenship v. Hearst Corp.,
519 F.2d 418 (9th Cir. 1975)............................................................................................. 10, 11

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Del Webb Communities, Inc. v. Partington,
2009 WL 3053709 (D. Nev. Sept. 18, 2009) .......................................................................... 11

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9

DIRECTV, Inc. v. Trone,
209 F.R.D. 455 (C.D. Cal. 2002) ................................................................................ 11, 12, 15

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Gracenote v. Musicmatch, Inc.,
2003 U.S. Dist. LEXIS 26015 (N.D. Cal Oct. 14, 2003) ........................................................ 16

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Jackson v. Montgomery Ward & Co.,
173 F.R.D. 524 (D. Nev. 1997) ......................................................................................... 10, 15

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Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc.,
2007 U.S. Dist. LEXIS 17540 (D. Nev. March 12, 2007) ............................................... passim

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Marchand v. Mercy Med. Ctr.,
22 F.3d 933 (9th Cir. 1994)..................................................................................................... 16

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Nidec Corp. v. Victor Company of Japan,
249 F.R.D. 575 (N.D. Cal. 2007) ................................................................................ 14, 25, 28

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Silvers v. Sony Pictures Entm’t, Inc.,
402 F.3d 881 (9th Cir. 2005)................................................................................................... 11

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RULES

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Federal Rule of Civil Procedure 26........................................................................................ passim

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Federal Rule of Civil Procedure 34........................................................................................ passim

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Federal Rule of Civil Procedure 37................................................................................................. 1

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Local Rule 26-7 ............................................................................................................................... 1

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Local Rule 26-7(a) ............................................................................................................ 12, 19, 28

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Local Rule 26-7(b) .......................................................................................................................... 1

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OTHER AUTHORITIES

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Las Vegas Review Journal article ................................................................................................... 2

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DEFENDANT’S MOTION TO COMPEL

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

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NOTICE OF MOTION AND MOTION TO COMPEL
Defendant and Counterclaimant Democratic Underground, LLC (“Democratic

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Underground” or “Defendant”) hereby moves pursuant to Federal Rules of Civil Procedure 26, 34

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and 37 and Local Rule 26-7 to compel Plaintiff and Counterdefendant Righthaven LLC

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(“Righthaven”) and Counterdefendant Stephens Media LLC (“Stephens Media”) to produce all

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documents responsive to certain requests in Defendant and Counterclaimant Democratic

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Underground LLC’s First Set of Requests for Production of Documents (“First Set of Requests

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for Production of Documents”) relating to (1) the creation of Righthaven and (2) the assignment

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of the copyright at issue, including communications required by and relating to the Strategic

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Alliance Agreement recently made public in this case.
This motion is based on the following Local Rule 26-7(b) Certification, the following

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Memorandum of Points and Authorities, the accompanying Declaration of Clifford C. Webb and

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such other written submissions and oral argument as may be presented to the Court at or before

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the time this motion is taken under submission.

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LOCAL RULE 26-7(B) CERTIFICATION

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Pursuant to Local Rule 26-7(b), counsel for Democratic Underground certifies that it

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conferred by email, by letter and by telephone with counsel for Righthaven and Stephens Media

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from January 21, 2011 through March 24, 2011, in a sincere effort to resolve the issues raised by

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this Motion to Compel without court action. Defendant’s efforts have been unsuccessful,

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necessitating this motion.

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Dated: April 28, 2011

FENWICK & WEST LLP

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By:

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/s/ Clifford C. Webb
CLIFFORD C. WEBB

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

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DEFENDANT’S MOTION TO COMPEL

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

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION

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As the Court aptly stated in its most recent Order in this action, “Righthaven and Stephens

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Media have attempted to create a cottage industry of filing copyright claims, making large claims

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for damages and then settling claims for pennies on the dollar, with defendants who do not want

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to incur the costs of defending the lawsuits[. They] are now offended when someone has turned

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the tables on them and is insisting on a judgment in their favor rather than a simple dismissal of

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the lawsuit.”1 Defendants, Democratic Underground (“DU”) and its founder, David Allen, have

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refused to be intimidated. They have defended against claims that they infringed Righthaven’s

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copyrights when a blogger posted on the DU website a five sentence excerpt from a fifty sentence

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Las Vegas Review Journal article. In their defense, Defendants have not only claimed fair use,

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but also challenged Righthaven’s standing to sue, asserting that the purported assignment of

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rights from Stephens Media to Righthaven is a sham, champertous, and invalid.

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With this Motion, Defendants ask the Court to compel documents that are directly

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relevant to the last issue: Righthaven’s standing. Specifically, this includes documents about (1)

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the formation of Righthaven and (2) the assignment of the copyright at issue. These documents

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are not only relevant to the claims and defenses in this action, but also to the hundreds of other

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actions Righthaven has filed. As the Court stated in its Order Granting Defendants’ Motion to

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Unseal, which made public the Strategic Alliance Agreement (one of the few documents

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produced by Stephens Media thus far): “it appears to the Court that there is certainly an interest

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and even a right in all the other defendants sued by Plaintiff to have access to this material.

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Furthermore, because these cases have generated a great deal of public interest, particularly in the

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media and on the internet, that there is a right of the public to this information which overrides

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any claimed confidential commercial rights.”2
Righthaven and Steven Media have refused to produce these documents for over four

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months. Indeed, Righthaven has refused to produce a single document in discovery in this case.

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Order on Motion for Reconsideration, Docket (“Dkt.”) 94 at 2.

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Docket 93 at 4.

DEFENDANT’S MOTION TO COMPEL

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Instead, Righthaven has time and time again promised to produce documents or reply to

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Defendants regarding the status of production, and then failed to do so. Meanwhile, Stephens

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Media has unilaterally limited its discovery responses, producing a tiny subset of information. It

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has claimed as to certain requests that documents are only in its affiliates’ possession, while later

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contradicting itself and stating that, although Stephens Media is itself in possession of responsive

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documents, those documents will not be produced or identified in privilege logs. After over two

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months of meeting and conferring, Righthaven and Stephens Media continue to abuse the

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discovery process by withholding relevant documents. Further, each has failed for four months to

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produce any privilege log—thereby waiving the unclaimed privilege—while, at the same time

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refusing to produce communications relating to the formation of Righthaven on the basis that they

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are purportedly privileged.

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There is no further excuse for Righthaven and Stephens Media’s obstruction. They should

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be ordered to produce the documentation of their relationship, including those as to which any

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conceivable privilege has been waived, within ten days of the Court’s order.

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II.

FACTUAL BACKGROUND

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A.

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In this copyright infringement action, one of over 250 filed by Righthaven against various

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defendants in the past year, Righthaven claims that Democratic Underground and its owner David

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Allen, have allowed a blogger to post on the DU website an Excerpt from a News Article, the

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copyright for which was purportedly assigned to Righthaven by Stephens Media. Defendant

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Democratic Underground filed a counterclaim alleging that there can be no infringement, that the

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assignment was a sham, that Righthaven exists solely to file copyright claims, and that Stephens

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Media is the real party in interest. Dkt. 13. Defendants have also asserted several other

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affirmative defenses, including unclean hands, barratry, champerty, and maintenance, copyright

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misuse, fair use and lack of damages. Id.

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Case Overview

The few documents that have been obtained to date provide support for Defendants’

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defenses and claims. In support of a motion to dismiss, Stephens Media offered up a form of

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“Assignment” that purported to assign its rights in the News Article to Righthaven, but which, on
DEFENDANT’S MOTION TO COMPEL

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

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its face, indicated that Stephens Media retained a right of reversion that the “Assignment” did not

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disclose. When Defendants pushed to obtain the documentation of that right of reversion,

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Stephens Media ultimately produced a Strategic Alliance Agreement (“SAA”), which purports to

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be the master agreement that governs all the assignments Righthaven has sued upon in this Court.

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Declaration of Clifford C. Webb In Support of Defendant Democratic Underground LLC’s

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Motion to Compel the Production of Documents (“Webb Decl.”) ¶ 2, Exh. A.

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The terms of the SAA provide substantial evidence that: (1) Righthaven has been

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conveyed no rights in the work at issue other than the right to sue for infringement, a fact that

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renders the assignment to Righthaven invalid; (2) Stephens Media is the real party in interest,

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engaging Righthaven as its agent to prosecute this action; (3) Stephens Media retains the right to

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sue Democratic Underground under the Agreement, thereby giving rise to a live and genuine

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controversy with Stephens Media; and (4) Righthaven has been granted no rights to exploit the

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work in question, and thus, for the purpose of fair use analysis, can suffer no harm from the use of

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the Excerpt by Democratic Underground. Specifically, the SAA reflects:

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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

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

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work after receiving notice:

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“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.

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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:

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“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.

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

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SAA in fact provides that:

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“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).

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Despite the purported “assignment” of all rights in the copyright to Righthaven, the

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Righthaven and Stephens Media split the proceeds of any recovery 50/50, minus

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Righthaven’s costs, except that if Stephens Media reclaims the copyright, it has to pay
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Righthaven’s expenses to date. SAA ¶¶ 5 8.
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Nonetheless, Stephens Media and Righthaven continue to assert that the assignment is
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valid, that the relationship between them is not merely an agency relationship, and that
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Righthaven has sufficient control and ownership to constitute standing under the Copyright Act.
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Dkts. 36, 38, 56, 78. Therefore, Democratic Underground has a right to discovery of all
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documents that might bear on this supposed relationship, such as other communications about the
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assignment, communications leading to the formation of the SAA and negotiation of its terms,
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communications regarding the effectuation of assignment for the News Article or the relationship
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between Stephens Media and Righthaven, and so on.
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B.

Background of the Present Discovery Dispute

Defendants, over the course of the last three months, have communicated the clear
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DEFENDANT’S MOTION TO COMPEL

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

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relevancy of the documents at issue and the inadequacy of Righthaven’s and Stephens Media’s

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responses and production, both in writing and during telephone discussions. Righthaven has

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repeatedly promised dates on which it will produce documents but then failed to deliver anything.

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To date, Righthaven has failed to produce a single document in response to any of Defendant’s

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document requests. While Stephens Media has produced a handful of relevant documents, it

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refuses to produce others that go to the heart of the pending action and Counterclaim.

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Democratic Underground served its First Sets of Requests for Production of Documents

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on Righthaven and Stephens Media, respectively on December 17, 2010. See Webb Decl. ¶ 4,

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Exhs. B, C. Stephens Media served responses on January 18, 2011. Id. ¶ 5, Exh. D. Righthaven

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served responses on or around January 18, 2011.3 Between January 21, 2011 and February 3,

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2011, counsel for Defendants contacted counsel for Righthaven and Stephens Media in attempts

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to arrange a meet and confer call regarding their responses. Id. ¶ 7. After three weeks of delay,

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on February 10, 2011, counsel for Defendants finally was afforded separate meet and confer calls

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with Righthaven and with Stephens Media. Id. During those calls, the parties resolved some of

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Righthaven’s and Stephens Media’s objections, and Defendants agreed to narrow certain requests

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in scope. Id. ¶ 8. That same day, counsel for Defendants sent Righthaven and Stephens Media

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letters memorializing their respective meet and confer calls. Id., Exhs. G, H. Defendants sent

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additional emails clarifying the meet and confer letter on February 16, 2011. Id. ¶ 9, Exhs. I, J.

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1.

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Meet and Confer with Stephens Media

Stephens Media provided its First Supplemental Responses to Defendants on February 28,

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2011 along with 14 documents, including the SAA. Id. ¶ 10, Exh. K. Those responses were

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clearly incomplete. For example, they included only one single email between Stephens Media

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and Righthaven. Id. Defendants therefore emailed Stephens Media on March 1, 2011 listing

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several specific categories of documents that Defendants expected to receive in Stephens Media’s

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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

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production and asking when Defendants would receive such documents, including:
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“[T]he Operating Agreement referred to in the Strategic Alliance Agreement (SAA)

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and the other documents reflecting the integrated transaction for creation of SI Content

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Monitor and operations of Righthaven
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documents relating to the formation of Righthaven beyond the ultimate SAA (emails,
drafts, discussions of structure, etc.)



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documents relating to the various elections and notices required by the SAA to be

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made by Stephens Media or Righthaven relating to the News Article, including, e.g.,

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the Searching Decision, the Material Risk Conclusion, The Remediation Option

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Notice, the Assignment (documents apart from the form already supplied)


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other documents showing the notification of search results and any communication

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about them that resulted in the actual decision to and act of assignment.”

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Id. ¶ 11, Exh. L. Defendants also requested that Stephens Media produce its past-due privilege

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log. Id. Under this Court’s scheduling order, “[a] party. . . shall submit a detailed privilege log .

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. . within (21) days following the date that the documents memorialized in the privilege log were

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to be produced.” Dkt. 54 at 7. Stephens Media’s log was thus due on February 8.

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After a week, counsel for Stephens Media, Mr. Colby Williams, replied that his

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understanding was that all documents, aside from the SAA, were in the possession of SI Content

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Monitor, a subsidiary of Stephens Media’s parent company. Id. ¶ 12, Exh. M. In addition, Mr.

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Williams stated that he was—apparently for the first time, nearly three months after the service of

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the document requests—asking Stephens Media’s general counsel, Mr. Hinueber, to review the

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documents he had. Id. On March 11, 2011, counsel for Defendants emailed Mr. Williams stating

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that it was surprising that Stephens Media claimed not to have possession of or even access to the

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Operating Agreement, as that Agreement, according to paragraph 2 of the SAA, was part of the

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integrated transaction that also included the SAA, to which Stephens Media was a party and

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which it had produced. Id. ¶ 13, Exh. N.4 On March 17, Mr. Williams stated that he would

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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

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attempt to obtain all the documents requested from SI Content Monitor, and that he would get

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back to Defendants the next day with an answer. Id. ¶ 14, Exh. O.

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On March 21, having heard nothing, counsel for Defendants emailed Mr. Williams asking

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for the status on documents from SI Content Monitor and from Mr. Hinueber, Stephens Media’s

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general counsel, which Defendants reminded Stephen Media must be included on its overdue

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privilege log. Id. ¶ 15, Exh. P. On March 22, 2011, Mr. Williams stated that he was able to

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obtain a copy of the Operating Agreement from SI Content Monitor that he produced along with

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Stephens Media’s Second Supplemental Responses. Id. ¶ 16, Exh. Q. But he did not produce the

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remainder of the documents sought.

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As to the documents in the possession of Mr. Hinueber, Stephens Media’s general

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counsel, Mr. Williams now admitted that responsive documents existed, but still refused to

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produce them or to disclose what they were in a privilege log. Id. Mr. Williams stated that he

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was maintaining the position that the Hinueber documents were “not ‘otherwise discoverable’”

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based on Stephens Media’s previous written objections to the document requests calling for their

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production. Id.

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Counsel for Defendants responded by listing a small subset of the Requests to which

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Mr. Hinueber’s documents would be relevant and detailing how any purported objection by

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Stephens Media had already been resolved. Id. ¶ 17, Exh. R. For those categories, the objections

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had been only (1) that the documents were “confidential”—an issue resolved over a month earlier

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by entry of a protective order, or (2) that documents might be privileged—which would not have

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excused production of a privilege log. Id. Nonetheless, Mr. Williams continued to maintain that

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Stephens Media would not produce the documents unless the Court “rules that any of the subject

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documents are ‘otherwise discoverable’ despite the asserted objections.” Id. ¶ 18, Exh. S.

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2.

Meet and Confer with Righthaven

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During the February 10, 2011 meet and confer, Defendants asked that Righthaven

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reevaluate its relevancy objections to matters that were quite obviously relevant in this action. Id.

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¶ 8, Exh. G. For example, Righthaven had objected on relevancy grounds to: documents relating

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to the creation of Righthaven and its communications with Stephens Media; and documents
DEFENDANT’S MOTION TO COMPEL

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relating to the method of determining who Righthaven would sue—a process publicly referenced

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by its head, Steve Gibson. Righthaven responded that it would reevaluate its objection if

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Defendants provided reasoning for how each of these requests was relevant. Righthaven also

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agreed to provide supplemental responses by February 20, 2011 and to provide a privilege log

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and all relevant, responsive non-confidential documents by February 25. Id. Righthaven further

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agreed to produce confidential documents 7-10 days after entry of the protective order, which was

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subsequently entered on February 14. Id.

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Pursuant to Righthaven’s request, and in an effort to have a meaningful meet and confer

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and resolve these objections, Defendants did provide a detailed list of each objected-to Request

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and the precise claims and affirmative defenses to which the requests are relevant. It did so

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despite it being Righthaven’s burden to provide reasoning for its own objections. See Koninklijke

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Philips Elecs. N.V. v. KXD Tech., Inc., 2007 U.S. Dist. LEXIS 17540, at *12 (D. Nev. March 12,

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2007) (“the objecting party must specifically detail the reasons why each request is irrelevant”)

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(emphasis added); Webb Decl. ¶ 8, Exh. G. Righthaven, however, failed to uphold its end of the

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bargain. Despite Righthaven’s agreement to produce all documents and supplemental responses

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no later than February 25, it provided nothing at all. Defendants’ counsel emailed Mr. Mangano,

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counsel for Righthaven, asking when Defendants would be receiving the promised documents,

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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

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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

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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

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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

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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

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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

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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

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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.

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9
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26
27
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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

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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.

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5
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9
10
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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.

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15
16
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DOCUMENT REQUEST NO. 42 TO RIGHTHAVEN:
ALL COMMUNICATIONS between YOU and Jackson Farrow.

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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

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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.

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24
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26
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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

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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

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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.

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24
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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

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

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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.

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20
21
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23
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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

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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

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

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(¶ 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
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26
27
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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

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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.

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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.

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DEFENDANT’S MOTION TO COMPEL

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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

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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.

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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.

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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

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

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ambiguous, overly broad and impose [sic] compliance requirements outside
of those authorized under Rule 34.

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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.

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DOCUMENT REQUEST NO. 42 TO RIGHTHAVEN:
ALL COMMUNICATIONS between YOU and Jackson Farrow.
DEFENDANT’S MOTION TO COMPEL

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

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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.

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DEFENDANT’S MOTION TO COMPEL

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

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DOCUMENT REQUEST NO. 53 TO STEPHENS MEDIA:
ALL COMMUNICATIONS between YOU and Jackson Farrow.

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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.

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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.”

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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.

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SUPPLEMENTAL RESPONSE:
Without waiving the foregoing objections, see Strategic Alliance
Agreement, Bates Nos. SM000078-94.

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1.

Stephens Media’s Confidentiality Objections Are Moot Since Entry of the
Stipulated Protective Order.

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Stephens Media’s sole objection to the four requests above, which each seek information

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relevant to the assignment of the News Article at issue in this action, is that a protective order had

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not been entered in this case. Since entry of the Stipulated Protective Order on February 14,

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2010, this objection is moot. Dkt. 65; see Koninklijke Philips Elecs. N.V, 2007 U.S. Dist. LEXIS

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17540, at *15 (“a stipulated protective order regarding the production of confidential and

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proprietary information has been entered in this case. Therefore Defendants’ objection to

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producing documents based on the proprietary or confidential nature of the requested information

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[is] overruled, and Defendants are required to produce relevant documents or information”).

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It is inconceivable that Stephens Media does not have additional responsive documents,
DEFENDANT’S MOTION TO COMPEL

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

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given those specifically required to be created by Stephens Media or to be sent to Stephens Media

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under the SAA. See SAA, ¶¶ 3.1, 3.3, 7.1. If it claims that it does not possess such documents

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because they are in the hands of “SI Content Monitor,” this could only be by virtue of SI Content

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Monitor acting as Stephens’ Media’s agent under the SAA—a relationship that certainly allows

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Stephens Media to obtain and produce the documents itself (as it did with the Operating

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Agreement). Accordingly, the Court should order Stephens Media to produce all documents in

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its possession, custody and control within ten days of its order, including those in the possession

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of SI Content Monitor, responsive to these requests.

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2.

Righthaven Has Improperly Failed to Produce Relevant Documents.

In its Supplemental Responses, Righthaven engages in a game of “directing Defendants”

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to the SAA document produced by Stephens Media and to documents attached to its pleadings,

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without actually producing any documents. Righthaven’s response also claims it will produce

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documents it chooses to “designate”—notably, not all responsive documents—at a date uncertain,

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depending on when it chooses to review them. Webb Decl. ¶ 27, Exh. CC. Righthaven has had

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long enough—over four months—to locate and review documents. Righthaven’s assertion that it

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will produce documents on a “mutually agreeable date and time” is demonstrably false.

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Righthaven previously chose, unilaterally, the dates for its compliance, but then failed,

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repeatedly, to meet even its own schedule. Id. Righthaven’s last “promise” of a date to provide

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documents was that it would provide them “when they are located.” Id. ¶ 24, Exh. Y.

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Defendants have been more than patient; there is no excuse for such game playing in this case.

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Accordingly, Righthaven should be ordered to produce within ten days all documents in
the categories identified.
C.

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Righthaven and Stephens Media Have Waived Their Objections Based on the
Attorney-Client or Work-Product Privileges By Failing To Produce A
Privilege Log.

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This Court has repeatedly held that where, as here, a party fails to produce a privilege log,

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that party’s objections based on privilege are waived. See Koninklijke Philips Elecs. N.V., 2007

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U.S. Dist. LEXIS 17540, at * 14 (Foley, J.); Akers v. Keszei, 2009 U.S. Dist. LEXIS 106247, at *

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8-9 (D. Nev. Oct. 27, 2009) (Foley, J.). The “party asserting the attorney-client privilege has the
DEFENDANT’S MOTION TO COMPEL

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

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burden of making a prima facie showing that the privilege protects the information” and must

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produce a privilege log or affidavits supporting application of the work product doctrine or

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demonstrating attorney-client privilege. Koninklijke Philips Elecs., 2007 U.S. Dist. LEXIS

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17540, at *14. Where Defendants do not provide privilege logs or affidavits supporting their

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generalized objections based on privilege, the party waives its privilege objections. Id.; Akers,

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2009 U.S. Dist. LEXIS 106247, at *8-9, n. 2 (finding plaintiff’s privilege objection waived as

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improper where plaintiff had not produce a privilege log).

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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

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specifically ordered production of a log no later than February 8. See Order, Dkt. 54 (“A party. . .

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shall submit a detailed privilege log detailing the nature of the privilege or the basis for the item’s

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or items’ protection as trial preparation material. Such a privilege log shall be limited to

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communications prior to the commencement of this action, and shall be produced within (21)

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days following the date that the documents memorialized in the privilege log were to be produced

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by the party from whom discovery is being sought.”). Because generalized objections are

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improper without submission of a privilege log, Righthaven and Stephens Media have waived all

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objections based on privilege, and the Court should so order on this motion. Koninklijke Philips

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Elecs., 2007 U.S. Dist. LEXIS 17540 at *14.

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That the waiver here should be enforced finds further support in two other facts. First,

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Defendants are not belatedly springing some trap upon Righthaven or Stephens Media; rather

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Defendants have been requesting privilege logs for three months, repeatedly reminding of the

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Court’s prior order, only to have Righthaven and Stephens Media thumb their noses. See, e.g.,

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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,

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EE. Second, the deliberate stalling of resolution of privilege issues has been in pursuit of tactical

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advantage. Both Righthaven and Stephens Media apparently hoped to shield the nature of their

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relationship behind a claim of “common interest” privilege—apparently including within that

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privilege communications about the formation of Righthaven and the assignments that

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Defendants assert are a sham. Id. ¶¶ 10, 18, Exhs. K, S. But they have a problem doing so: to
DEFENDANT’S MOTION TO COMPEL

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claim joint conduct further substantiates Defendants’ claim of agency and sham and undermines

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their claim that they were engaged in any sort of arms’ length, genuine transaction. Despite

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Defendants’ Requests for documents that might substantiate or refute their common interest,

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Righthaven and Stephens Media have failed to produce any responsive documents.

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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

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

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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.

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Despite responding that they would produce and/or log documents responsive to this

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Request, Stephens Media and Righthaven have refused to produce any such documents or to

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provide a privilege log. By refusing even to identify what privileges were being claimed, and as

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to what documents, Righthaven and Stephens Media intentionally halt the difficult process for

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resolving those issues. The just consequence for such conduct is to treat the privilege as waived.

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IV.

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CONCLUSION
For these reasons, Defendant Democratic Underground respectfully requests that this

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Court grant Defendant’s Motion to Compel Production of Documents from Stephens Media on

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Requests 3, 4, 7, 10, 36, 53 and 69 and from Righthaven on Requests 3, 4, 7, 10, 41, 42 and 58.

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The Court should order all documents in their possession, custody and control, including those in

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the control of their agents including SI Content Monitor, produced within ten days of its order.

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And the Court should order that all privileges have been waived as to these categories and as to

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any responsive materials within the scope of the Court’s order.

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Dated: April 28, 2011

FENWICK & WEST LLP

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By:

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/s/ Clifford C. Webb
CLIFFORD C. WEBB

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

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DEFENDANT’S MOTION TO COMPEL

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