Righthaven LLC v. Democratic Underground, LLC et al
Filing
96
DECLARATION of CLIFFORD C. WEBB In Support of Defendant Democratic Underground, LLC's First Motion to Compel the Production of Documents re 95 First MOTION to Compel the Production of Documents By Defendant Democratic Underground, LLC and Memorandum of Points and Authorities In Support Thereof ; filed by Defendants David Allen, Democratic Underground, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF)(Webb, Cliff)
EXHIBIT O
Jennifer Johnson
From:
Sent:
To:
Cc:
Subject:
Colby Williams [jcw@campbellandwilliams.com]
Thursday, March 17, 2011 3:53 PM
Jennifer Johnson
Kurt Opsahl; Laurence Pulgram; Clifford Webb; Chad A. Bowers, Esq.;
shawn@manganolaw.com
RE: Righthaven v. DU
Jennifer,
I have now had a chance to come up for air after the significant hearings we had in another
matter on Tuesday. New developments in the same matter kept me tied up yesterday and this
morning as well. In the event defendants have any question about the existence and time
consuming nature of the matter about which I speak, you may read about it at the following
link to an article authored by Steve Green of the Las Vegas Sun (who you are no doubt
familiar with given his extensive coverage of the various Righthaven lawsuits):
http://www.lasvegassun.com/news/2011/mar/17/fired‐las‐vegas‐sands‐executive‐hits‐sheldon‐
adels/
Turning to our piece of litigation, Mark Hinueber has delivered a set of documents to me
which appear to be his communications regarding Righthaven. I have not yet had a chance to
go through them but will begin doing so today. I have not heard back from Si Content Monitor
or its counsel regarding the request for documents we sent it last week. I will follow up on
this as well. With respect to your inquiry about serving a subpoena on SI Content Monitor,
you are, of course, free to do so. I am, however, trying to obviate the need for you to
engage in this process, but need to determine the company's (i.e., SI Content Monitor's)
position on the issue before I can tell you affirmatively whether we will be able to obtain
any documents without the need for a subpoena.
I will follow up with you tomorrow when I have more information.
Regards,
Colby
‐‐‐‐‐Original Message‐‐‐‐‐
From: Jennifer Johnson [mailto:jjjohnson@fenwick.com]
Sent: Friday, March 11, 2011 1:37 PM
To: Colby Williams
Cc: Kurt Opsahl; Laurence Pulgram; Clifford Webb; Chad A. Bowers, Esq.; shawn@manganolaw.com
Subject: RE: Righthaven v. DU
Colby,
We find it surprising that Stephens Media claims it does not have possession of or any access
to the Operating Agreement, given that the Operating Agreement was part of the integrated
transaction that also included the Strategic Alliance Agreement. We are also perplexed by
the idea that only SI Content Monitor has the communications we seek relating to the SAA,
since it is Stephens Media that has the rights to approve, disapprove, decline and revert
under the SAA. To the extent that SI Content Monitor performed any tasks in that regard, it
would be acting as Stephens Media’s agent, and it is hard to fathom that Stephens Media could
not obtain those documents if it requested them.
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Nevertheless, in light of your contention that SI Content Monitor LLC is a separate entity
from Stephens Media, we are prepared to serve a subpoena if necessary so that the issue of
whether Stephens Media has control over SI Content Monitor and its documents disappears.
Please provide us promptly with the name of SI Content Monitor’s counsel so we can contact
him or her directly. We hope that you are able to obtain all documents from SI Content
Monitor and provide them to us without the need to enforce the subpoena, especially in light
of your complaint that defense counsel is driving up litigation costs. To this end, please
let us know as soon as possible if you are going to produce all of SI Content Monitor’s
responsive documents.
We also look forward to hearing from you mid next week regarding documents from Mr. Hinueber.
Please understand, however, that while we have identified below the documents that we would
assume exist, we do not know all the documents that Stephens Media has, and Mr. Hinueber and
Stephens Media are obligated to search for and produce all responsive documents. Finally,
given the ongoing failure timely to produce a privilege log, we reserve all rights in that
regard as well.
Regards,
Jennifer
‐‐‐‐‐Original Message‐‐‐‐‐
From: Colby Williams [mailto:jcw@campbellandwilliams.com]
Sent: Wednesday, March 09, 2011 6:30 PM
To: Jennifer Johnson
Cc: Kurt Opsahl; Laurence Pulgram; Clifford Webb; Chad A. Bowers, Esq.; shawn@manganolaw.com
Subject: FW: Righthaven v. DU
Jennifer,
Following up on the e‐mails below, I was able to discuss the items raised therein with
Stephens Media's general counsel today. The additional documents you identify in your e‐mail
connected to the SSA are not in the possession or custody of Stephens Media. We believe they
are in the possession of SI Content Monitor, LLC, an Arkansas limited liability company. SI
Content Monitor is a separate company from Stephens Media with its own counsel.
Notwithstanding the foregoing, and without in any way conceding that Stephens Media has
control over the subject documents, our firm will submit a request to counsel for SI Content
Monitor asking it to search for any potentially responsive documents it may have in its
possession and whether it will provide copies to us. Depending on the response from SI
Content Monitor, we will then determine whether there will be any supplemental production
from Stephens Media as it relates to these items. Meanwhile, we reserve all of our prior
objections and positions.
Next, Mr. Hinueber has advised that he expects to complete by Friday his search for any
communications Stephens Media may have had in the timeframe and on the subject matters you
identified below. That is not to say that we agree these communications, if any, are subject
to production or inclusion on a privilege log given the previous objections we've asserted.
I will let you know where we stand once I get the documents from Stephens. On this point,
please be advised that I have two very significant motions being heard on March 15 in an
unrelated matter that will require the bulk of my attention until that time. Thus, I will
have limited availability to address matters in this case until mid‐next week.
Finally, I wanted to clarify a point raised in your e‐mail regarding the licensing agreements
we produced being located in Arkansas. While it is true that I opined during our telephonic
meet and confer that certain of the documents DU was requesting may be located in Arkansas,
it turned out that I was in error in that regard. The licensing agreements were, in fact,
located in Las Vegas.
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Regards,
Colby
J. Colby Williams, Esq.
Campbell & Williams
700 South Seventh Street
Las Vegas, Nevada 89101
Tel. (702) 382‐5222
Fax. (702) 382‐0540
email: jcw@campbellandwilliams.com
‐‐‐‐‐Original Message‐‐‐‐‐
From: Colby Williams
Sent: Wednesday, March 02, 2011 7:32 PM
To: 'jjjohnson@fenwick.com'
Cc: 'kurt@eff.org'; 'LPulgram@Fenwick.com'; 'cwebb@fenwick.com'; 'bowers@lawyer.com';
'shawn@manganolaw.com'
Subject: Re: Righthaven v. DU
Jennifer,
Thank you for your email and your clarification on the scope of the privilege log.
As I have previously advised in connection with the depositions Defendants originally set of
our client reps, I am out of town the remainder of this week. Nevertheless, I have spoken
with Stephens GC about your latest communication. Without commenting on what you may have
"expected to receive," I can tell you that Stephens has no documents relating to the News
Article such as a Searching Decision, a Risk Conclusion, etc. The only document in this
regard is the Assignment, which you have.
Similarly, and without in any way agreeing that the other documents you've identified are
reasonably calculated to lead to the discovery of admissible evidence (or, in some cases,
even exist), I have asked Stephens to see whether it has any responsive documents. My
preliminary understanding is that these items ‐ again, to the extent they exist ‐ would be in
the possession of the separate company, SI Content Monitor. I should know more on this by
Monday. Meanwhile, of course, we reserve all of our previous objection and positions,
including the application of the attorney client privilege where appropriate.
Regards,
Colby
Sent from my Verizon Wireless BlackBerry
‐‐‐‐‐ Original Message ‐‐‐‐‐
From: Jennifer Johnson
To: Colby Williams
Cc: Kurt Opsahl ; Laurence Pulgram ; Clifford Webb
; Chad A. Bowers, Esq. ; shawn@manganolaw.com
Sent: Tue Mar 01 15:33:49 2011
Subject: RE: Righthaven v. DU
Colby,
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Thank you for the supplemental responses. We are still reviewing them. As an initial
matter, there are several documents that we expected to receive in this production that were
not included, including for example:
∙ the Operating Agreement referred to in the Strategic Alliance Agreement (SAA) and
the other documents reflecting the integrated transaction for creation of SI Content Monitor
and operations of Righthaven
∙ documents relating to the formation of Righthaven beyond the ultimate SAA (emails,
drafts, discussions of structure, etc.)
∙ documents relating to the various elections and notices required by the SAA to be
made by Stephens Media or Righthaven relating to the News Article, including, e.g., the
Searching Decision, the Material Risk Conclusion, The Remediation Option Notice, the
Assignment (documents apart from the form already supplied)
∙ other documents showing the notification of search results and any communication
about them that resulted in the actual decision to and act of assignment
You stated that Stephens Media intends to produce documents on a rolling basis, but based on
our conversation, this was to be for the documents (e.g. license agreement with Lexis)
located in Arkansas that would take longer for Stephens Media to receive and review before
producing. It appears that some of the Arkansas documents were included in your production,
which we appreciate. Please let us know when we can expect to receive the above categories
of documents, which should be available directly from Stephens Media and produced
immediately.
With respect to the privilege log, we agree that, at least at this point, the parties need
not log any communications for the post‐complaint time period. We understand that the
communications exchanged between you and Righthaven’s counsel may have primarily occurred
after the filing of the complaint; however, the privilege log must contain any other
privileged communications in Stephens Media’s possession prior to your retention, including
but not limited to any documents claimed to be privileged relating to communications about
the formation of Righthaven, the News Article at issue, and any and all communications
responsive to the other discovery requests. Under the Court’s scheduling order, these logs
were ordered to be produced by February 8, i.e. 21 days after your objections/responses and
documents were due (January 18) [Dkt. 54]. If these logs are not produced immediately, you
will leave us with no option but to consider the privilege waived.
Regards,
Jennifer
Jennifer J. Johnson
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Fenwick & West LLP
Associate, Litigation Group
(415) 875‐2391
(415) 281‐1350
jjjohnson@fenwick.com
From: Colby Williams [mailto:jcw@campbellandwilliams.com]
Sent: Monday, February 28, 2011 5:15 PM
To: Jennifer Johnson; shawn@manganolaw.com
Cc: Kurt Opsahl; Laurence Pulgram; Clifford Webb; Chad A. Bowers, Esq.
Subject: RE: Righthaven v. DU
Jennifer,
Per our previous discussions, attached is a copy of Stephens Media’s First Supplemental
Responses to DU’s First Set of RFPs. A copy has also been sent by regular mail. As part of
the production, we have included a non‐privileged exchange of communications between Mark
Hinueber and Joseph Chu at Righthaven regarding a scheduling matter that occurred shortly
after DU filed its counterclaim in this action. (The e‐mail is redacted to the extent Mark
Hinueber forwarded it to our office in an attorney‐client communication, which is reflected
on the privilege log included herewith). Once we were retained as counsel after the filing
of the counterclaim, there have been additional communications between Mr. Hinueber and our
firm as well as between this firm and Righthaven’s counsel. As I advised you, it is our
position that we should not have to log those communications on a privilege log given that,
among other reasons, they are continuing in nature and will impose an undue burden on the
parties to continually update the privilege log every time they speak with their respective
counsel in written form (or, as the case may be, exchange communications protected by the
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common interest privilege). You were going to check with your co‐counsel to determine
whether you agreed that the parties did not need to include such communications on their
privilege logs. Let me know your position on this issue at your convenience.
Regards,
Colby
J. Colby Williams, Esq.
Campbell & Williams
700 South Seventh Street
Las Vegas, Nevada 89101
Tel. (702) 382‐5222
Fax. (702) 382‐0540
email: jcw@campbellandwilliams.com
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