Righthaven LLC v. Newman

Filing 25

MOTION to Dismiss for Lack of Jurisdiction Subject Matter and Personal First Amended Complaint by Defendant Garry Newman. Responses due by 8/18/2011. (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)(DiRaimondo, Anthony)

Exhibit B

{00641518.1}

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LAURENCE F. PULGRAM (CA State Bar No. 115163) (pro hac vice)
[e-mail]
CLIFFORD C. WEBB (CA State Bar No. 260885) (pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, California 94104
Telephone:
[phone]
Facsimile:
[phone]
KURT OPSAHL (CA State Bar No. 191303) (pro hac vice)
[e-mail]
CORYNNE MCSHERRY (CA State Bar No. 221504) (pro hac vice)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, California 94110
Telephone:
[phone]
Facsimile:
[phone]
CHAD BOWERS (NV State Bar No. 7283)
[e-mail]
CHAD A. BOWERS, LTD
3202 West Charleston Boulevard
Las Vegas, Nevada 89102
Telephone:
[phone]
Attorneys for Defendant and Counterclaimant
DEMOCRATIC UNDERGROUND, LLC, and
Defendant DAVID ALLEN
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
RIGHTHAVEN LLC, a Nevada limited liability company,
Plaintiff,
v.
DEMOCRATIC UNDERGROUND, LLC, a District of
Columbia limited-liability company; and DAVID ALLEN,
an individual,
Defendants.

Case No. 10-01356-RLH (GWF)
DEFENDANTS’
SUPPLEMENTAL
MEMORANDUM
ADDRESSING RECENTLY
PRODUCED EVIDENCE
RELATING TO PENDING
MOTIONS

DEMOCRATIC UNDERGROUND, LLC, a District of
Columbia limited-liability company,
Counterclaimant,
v.
RIGHTHAVEN LLC, a Nevada limited liability company,
and STEPHENS MEDIA LLC, a Nevada limited-liability
company,
Counterdefendants.
DEFENDANTS.’ SUPPL. MEMO ADDRESSING RECENTLY
PRODUCED EVIDENCE RELATING TO PENDING
MOTIONS

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

Exhibit B

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INTRODUCTION
Defendant / Counterclaimant Democratic Underground LLC and Defendant David Allen

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(collectively “Democratic Underground” or “Defendants”), respectfully submit this Supplemental

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Memorandum to bring to the Court’s attention key evidence just produced in discovery that is

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highly relevant to the three currently pending motions. Specifically, on February 28, 2011,

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Cross-Defendant Stephens Media, LLC produced, belatedly, a copy of the Strategic Alliance

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Agreement between itself and Righthaven, LLC.1 See Declaration of Laurence Pulgram

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(“Pulgram Decl.”), Exhibit A (hereafter, the “Agreement”). This Agreement, never before

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revealed to any Court in this District, on its face purports to be the master agreement that governs

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all the assignments Righthaven has sued upon in this Court.
The terms of the Agreement 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.
Defendants request that the Court consider this Agreement as a further basis upon which

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to deny the two Motions to Dismiss filed by Righthaven and Stevens Media, and to grant

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Defendants’ Motion for Summary Judgment on the issue of fair use. Given that this material was

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only recently and belatedly produced, Defendants could not have addressed it in any of the prior

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briefing. See, e.g., United States v. Maris, 2011 WL 468554, at *5 n.5 (D. Nev. Feb. 4, 2011)

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(granting leave to file supplemental materials even after the hearing on a motion for summary

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judgment); Mitchel v. Holder, 2010 WL 816761, at *1 n.1 (N.D. Cal. Mar. 9, 2010) (granting

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Stephens Media’s responses to Defendants’ First Requests For Production of Documents were due on January 18,
2011, ten days before Defendants’ Reply in Support of their Cross-Motion. By failing to produce this evidence until
February 28, Stephens Media precluded its earlier submission. For its part, Righthaven has still not produced this, or
any other, document.

DEFENDANTS.’ SUPPL. MEMO ADDRESSING RECENTLY
PRODUCED EVIDENCE RELATING TO PENDING MOTIONS

1

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

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leave to file supplemental brief in support of motion for summary judgment addressing newly

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discovered evidence); Lumsden v. United States, 2010 WL 2232946, at *1 (E.D. N.C. June 3,

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2010) (granting leave to submit additional newly discovered evidence in support of motion for

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summary judgment).

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In particular, Defendants submit that the Agreement demonstrates a compelling need for

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the Court to adjudicate the issues raised by the Counterclaim as to the sham and unenforceable

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nature of the assignments to Righthaven, as that issue may affect and dispose of hundreds of cases

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now improperly pending in this District.

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THE STRATEGIC ALLIANCE AGREEMENT
In Support of its Motion to Dismiss, Stephens Media presented the Court with a purported

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“Copyright Assignment,” in the same form Righthaven has repeatedly presented in this District as
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purportedly creating its right to sue. See Stephens Media’s Motion to Dismiss or Strike (“Dkt.
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38”), Exh. 1. Stephens Media relied on this Copyright Assignment as the sole evidence from
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which it claimed that: (1) “Righthaven, not Stephens Media, holds the exclusive right to seek
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legal redress” for infringement (Dkt. 38. at 6); (2) “Stephens Media would be legally barred
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from [suing]” Democratic Underground, even if it wanted to (id at 7); and (3) there was
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“absolutely no evidence” to support Defendant’s assertion that the assignment was a sham or that
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Righthaven is acting as Stephens Media’s agent. Id.
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In response, Defendants pointed out that the “Copyright Assignment” did not identify any
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actual rights under the Copyright Act assigned to Righthaven. See Defendants’ Memorandum in
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Opposition to Stephens Media LLC’s Motion to Dismiss and Joinder (“Dkt. 46”) at 6. Rather
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the Assignment circularly defined the rights assigned to include “all copyrights requisite to have
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Righthaven recognized as the copyright owner of the Work for purpose of Righthaven being able
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to claim ownership.” Dkt. 38, Exh. 1. Defendants also noted that, by its terms, the “Copyright
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Assignment” provided that it was subject to an undefined “right of reversion” to Stephens Media
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and also referred to unidentified “monetary commitments and commitment to services provided”
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which had not been disclosed to the Court. See Dkt. 46 at 5-6. Defendants advised the Court that
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DEFENDANTS.’ SUPPL. MEMO ADDRESSING RECENTLY
PRODUCED EVIDENCE RELATING TO PENDING
MOTIONS

2

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

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“when produced in discovery, [additional documents would] reveal the actual flow of obligations,

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control, and funding between Righthaven and Stephens Media.” Id.

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The Strategic Alliance Agreement, dated January 18, 2010, now supplies much of the

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missing information. This Agreement provides for a 50/50 split of lawsuit recoveries between

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Stephens Media and Righthaven (less “Costs”). See Agreement, Section 5.2 The Agreement

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further reveals a naked assignment to Righthaven of rights to sue for infringement, without

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conveying any exclusive rights under Section 106 of the Copyright Act to exploit Stephens

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Media’s work. Section 7.2 expressly denies Righthaven any rights other than to pursue

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infringement actions:

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7.2 Despite any such Copyright Assignment, 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.
To the extent that Righthaven's maintenance of rights to pursue
infringers of the Stephens Media Assigned Copyrights in any
manner would be deemed to diminish Stephens Media's right to
Exploit the Stephens Media Assigned Copyrights, Righthaven
hereby grants an exclusive license to Stephens Media to the greatest
extent permitted by law so that Stephens Media shall have
unfettered and exclusive ability to Exploit the Stephens Media
Assigned Copyrights.

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Section 7.2. (bold emphasis added); see also Schedule 1 – Definitions (defining “Exploit”). Thus,

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although the “Copyright Assignment” characterized itself as a transfer of “all copyrights requisite

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to have Righthaven recognized as the copyright owner of the Work for purposes of Righthaven

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being able to claim ownership as well as the right to seek redress for past, present and further

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infringements of the copyright,” (Dkt. 38, Exh. 1 (emphasis added)), the Strategic Alliance

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Agreement’s specific terms provide that “Righthaven shall have no right or license to Exploit …

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the Stephens Media Assigned Copyrights ” other than to share the proceeds of a Recovery in

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litigation.3 Section 7.2. Indeed, the Agreement specifically says that Stephens Media “shall

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All citations to “Sections” will refer to the Agreement, Pulgram Declaration Exhibit A.

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“Recovery” is defined as “any and all Sums received, transferred to, assigned, conveyed, paid or otherwise obtained
by Stephens Media and/or Righthaven relating to, arising or resulting from (whether directly or indirectly) a

DEFENDANTS.’ SUPPL. MEMO ADDRESSING RECENTLY
PRODUCED EVIDENCE RELATING TO PENDING
MOTIONS

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

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retain” these rights, showing that no rights were transferred in the first place. Id. (emphasis

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added).

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In operation, the Agreement also makes clear Righthaven’s role as Stephens Media’s

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agent. Stephens Media may assign copyrights of its choice to Righthaven to search for

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infringement. Sections 3.1; 3.2. Once a copyright is purportedly “assigned” to Righthaven,

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Stephens Media “engages” Righthaven on an exclusive basis to perform searching for copyright

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infringement and pursuit of infringement actions. Section 3.1 - 3.3. Should Righthaven

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ultimately choose not to serve as agent to commence an infringement action on a particular

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assignment, “then Righthaven shall reassign the Assigned Copyright to Stephens Media.”

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Section 3.3. Should Righthaven desire to sue, however, Stephens Media still controls whether

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suit will be brought through its right to send a “Declination Notice,” upon receipt of which

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“Righthaven shall not take any Infringement Action with respect to the particular putative

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infringer set forth in any Declination Notice.” Section 3.3. The bases upon which Stephens

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Media may stop a suit – even after it has “assigned” the purported right to sue – include whenever

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the person targeted “is a present or likely future valued business relationship of Stephens Media

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or otherwise would . . . result in an adverse result to Stephens Media.” Id.

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Even after suit is brought, Stephens Media retains an absolute right of reversion, subject

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only to later reimbursement of Righthaven’s investment in the litigation. Section 8, entitled

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“Stephens Media’s Right of Reversion” states: “Stephens Media shall have the right at any time

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to terminate, in good faith, any Copyright Assignment (the ‘Assignment Termination’) and enjoy

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a right to complete reversion to the ownership of any copyright that is the subject of a Copyright

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Assignment . . . .” Section 8.

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The right of reversion specifically contemplates that Stephens Media may, in such

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instances, continue to prosecute any litigation itself, providing that Stephens Media must, after

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such reversion, pay Righthaven’s costs associated with the “early termination” of the assignment

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“[w]ithin ten (10) days of receipt of any Recovery by Stephens Media” for the alleged

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Disposition, including, without limitation, all Sums paid by way of damages, costs and attorneys fees with respect to
or arising from an Infringement Action.” See Schedule 1 – Definitions.
DEFENDANTS.’ SUPPL. MEMO ADDRESSING RECENTLY
PRODUCED EVIDENCE RELATING TO PENDING
MOTIONS

4

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

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infringement. Section 8.

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Moreover, the Strategic Alliance Agreement also suggests that Stephens Media continues

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to exert direct control over Righthaven’s internal operations. The Agreement recites that it is part

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of an “integrated transaction” that requires that Righthaven proceed under a separate Operating

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Agreement that has been requested by Defendants, though not yet produced. Section 2; Pulgram

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Decl., ¶ 10. The Strategic Alliance Agreement recites that, under the Operating Agreement, one

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of the owners of Righthaven must be a “Stephens Media Affiliate” called SI Content Monitor,

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LLC, which “is presently and shall throughout the Term be Controlled by common owners [with

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Stephens Media] with no material variation in said ownership.” Section 2(a). This further

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suggests that Stephens Media, through the Operating Agreement can also exert direct control over

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Righthaven – though the precise facts await further document production.

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DISCUSSION
I.

THE AGREEMENT SUBSTANTIATES DEMOCRATIC UNDERGROUND’S
STANDING TO SUE STEPHENS MEDIA AS REAL PARTY IN INTEREST.
Stephens Media has argued that it is an improper party because, “[c]omplete ownership of

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the work being sued upon has been transferred to Righthaven without any ambiguity” and
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because “Righthaven, not Stephens Media, is . . . the only party vested with the right to sue . . . .”
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Stephens Media’s Reply in Support of Motion to Dismiss or Strike (“Dkt. 56”) at 4, 10. The
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Strategic Alliance Agreement eviscerates this argument and exposes the plain falsity of these
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assertions. The Agreement shows not only (1) that Stephens Media controlled the choice to
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“assign” rights in this particular News Article (Section 3.1), and then (2) controlled whether the
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News Article would actually be sued upon (Section 3.3), but also, (3) that Stephens Media, to this
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day, has an absolute right to reversion, under which it may continue the lawsuit as it wishes in its
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own name (Section 8). Indeed, Stephens Media even retains the ability to encumber the asset it
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has purportedly assigned with a “security interest, pledge, hypothecation, lien or other
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encumbrance” – behavior consistent only with ownership. See Section 9.3 and Schedule 1 26
Definitions.
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Likewise, the Agreement destroys Stephens Media’s assertion that there is nothing but
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DEFENDANTS.’ SUPPL. MEMO ADDRESSING RECENTLY
PRODUCED EVIDENCE RELATING TO PENDING
MOTIONS

5

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

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“fantasy” behind Defendants assertion that Righthaven acts as Stephens Media’s agent. Dkt. 56

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at 8. The Agreement describes Stephens Media’s “engagement” of Righthaven to bring suit;

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gives Stephens Media the ability to decide, even after “assignment,” whether to sue; gives

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Stephens Media the proceeds after Righthaven receives a 50% commission;4 and allows Stephens

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Media to terminate the agency at any time by exercising its reversion rights. Sections 3.3, 7, 8.

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And the Agreement also describes an Operating Agreement that requires a Stephens Media

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Affiliate with common ownership to participate in operating Righthaven. Section 2.

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In short, the Agreement adds substantial additional evidence to the already extensive
factual allegations showing a live case and controversy against Stephens Media.
II.

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THE AGREEMENT SUBSTANTIATES THE NEED TO RESOLVE THE
COUNTERCLAIM’S ALLEGATIONS THAT THE ASSIGNMENT IS INVALID,
SHAM, AND UNENFORCEABLE.

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The Agreement also further undermines the arguments of both Stephens Media and

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Righthaven that this Court need not decide the Counterclaim’s request for declaration of the

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invalidity and unenforceability of the assignment. As Defendants have already argued, it is

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precisely this sort of counterclaim, seeking resolution of the validity of the right assertedly

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infringed, that the Supreme Court has held must survive a dismissal with prejudice of a claim for

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infringement. Dkt. 46 at 13-14 (citing Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83

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(1993)). This newly-produced evidence underscores the importance of addressing that question

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now.

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On the question of validity, the Counterdefendants have argued that other rulings on

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motions to dismiss Righthaven’s prior lawsuits supposedly “upheld the validity” of the form

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“Copyright Assignment.” See, e.g., Dkt. 56 at 4-5; and Righthaven’s Motion for Voluntary

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Dismissal (“Dkt. 36”) at 20-21. But for each of those rulings (which came on motions to dismiss)

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Righthaven had withheld from the Court the Strategic Alliance Agreement and its definition of

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rights actually conveyed – thereby concealing that “Righthaven shall have no right or license to

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Defendants also note that the litigation proceeds due Stephens Media pursuant to this Agreement provide the
company with a direct, pecuniary interest in the outcome of this case, and therefore Stephens Media should have
been listed in Righthaven’s Certificate of Interested Parties. Dkt. 5.

DEFENDANTS.’ SUPPL. MEMO ADDRESSING RECENTLY
PRODUCED EVIDENCE RELATING TO PENDING
MOTIONS

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

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Exploit . . . the Stephens Media Assigned Copyrights” other than to share with Stephens Media

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the “Recovery” from litigation.5 Sections 5 and 7.2. As a result, this is the first case in which any

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Court will have the information necessary to assess the validity of the assignment.

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Rather than dismiss the Counterclaim as “unnecessary,” this Court will need to determine

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whether the rights assigned under the Agreement comport with the settled requirement that “only

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owners of an exclusive right in a copyright may sue” for infringement. Silvers v. Sony Pictures

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Entm’t, Inc., 402 F.3d 881, 884 (9th Cir. 2005). In Silvers, the en banc Ninth Circuit held that an

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assigned “right to sue for an accrued claim for infringement is not [one of the] exclusive

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right[s]” in copyright that can provide standing to sue. Such exclusive rights are limited to those

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specified in Section 106 of the Copyright Act, such as the right to copy, distribute, perform, etc.

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See id. at 884. Thus, in Silvers, the author of a work made for hire, who subsequently had been

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granted by her employer (the copyright holder) “all right, title and interest in and to any claims

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and causes of action against [specified infringers],” had no legal or beneficial interest in the

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underlying copyright itself, and thus could not initiate suit, because none of the individual

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exclusive rights under § 106 had been granted to her. See id. at 883. In support of its

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Counterclaim, Democratic Underground asserts that the same rule applies here. The Agreement

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expressly denies Righthaven any rights other than the right to sue on the copyright, with all rights

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to exploit the copyright being retained by Stephens Media. See Section 7.2. Thus, Righthaven’s

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claim has been baseless and Stephens Media has been the real party in interest from the outset.

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The fact that the Agreement applies to all Righthaven assignments from Stephens Media,

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not merely to this News Article, makes the Counterclaim all the more important. Now that the

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Agreement’s terms are finally before the Court, this Court’s determination of the validity of

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Righthaven’s assignment may effectively dispose of hundreds of Righthaven cases.

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For example, in Righthaven LLC v. Dr. Shezad Malik Law Firm P.C., (D. Nev.) 2:10-cv-0636-RLH-RJJ (cited in
RH's motion (Dkt. 36) at 21), Righthaven incorrectly stated that"[i]n the present action, there is no division of
copyright ownership as was the case in Silvers; Righthaven is the owner of both the exclusive rights in and to the
Work and the owner of all accrued causes of action." 2:10-cv-0636, Dkt. 11 at 13: 2-3 and Dkt. 13 at 12:24-26.
This is incorrect because Righthaven owns none of the exclusive rights specified in Section 106, all of which were
"retained" by Stephens Media.

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DEFENDANTS.’ SUPPL. MEMO ADDRESSING RECENTLY
PRODUCED EVIDENCE RELATING TO PENDING
MOTIONS

7

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

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III.

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THE AGREEMENT SUBSTANTIATES THE OBJECTIVE
UNREASONABLENESS OF PLAINTIFF’S CLAIMS AND THE PROPRIETY OF
AN ATTORNEYS’ FEE AWARD.

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Righthaven argued in its Motion that it should be allowed to voluntarily dismiss without

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paying attorneys’ fees because the “objective reasonableness” of its claims had purportedly been

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validated by the courts’ refusal to dismiss its prior claims for lack of standing. Dkt. 36. at 20-22.

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As just explained, however, those prior rulings resulted from Righthaven’s withholding of the

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Agreement from the Court. With the Agreement now on record, it appears indisputable that

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Righthaven’s assignment of the cause of action is invalid under Silvers, rendering Righthaven’s

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claim objectively unreasonable.

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IV.

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THE AGREEMENT SUBSTANTIATES THE FACT THAT RIGHTHAVEN
FACES NO POSSIBLE MARKET HARM THROUGH DEFENDANTS’ USE
Finally, the Agreement further substantiates the impossibility of harm to Righthaven’s

market for the work, as relevant to the fourth factor of the fair use analysis. Under the
Agreement, Righthaven is expressly prohibited from any rights to exploit the work – other than
the supposed right to sue for copyright infringement. Section 7.2. Thus, no use of the work
could have any possible impact on Righthaven (even if the use “should become widespread,” cf.
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984)), because Righthaven
has no rights in the work – other than the illusory “right” to litigate the work for a share of the
recovery. See generally Defendants’ Reply Memorandum in Support of Cross Motion for
Summary Judgment (“Dkt. 62”) at 13-14 (discussing lack of market harm).
///
///
///
///
///
///
///
///

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DEFENDANTS.’ SUPPL. MEMO ADDRESSING RECENTLY
PRODUCED EVIDENCE RELATING TO PENDING
MOTIONS

8

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

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CONCLUSION
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For these reasons, Defendants respectfully request that the Court consider the Strategic
Alliance Agreement in its adjudication of the three motions now pending before it.

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Dated: March 4, 2011

FENWICK & WEST LLP

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

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

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DEFENDANTS.’ SUPPL. MEMO ADDRESSING RECENTLY
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MOTIONS

9

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

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LAURENCE F. PULGRAM (CA State Bar No. 115163) (pro hac vice)
[e-mail]
CLIFFORD C. WEBB (CA State Bar No. 260885) (pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, California 94104
Telephone:
[phone]
Facsimile:
[phone]
KURT OPSAHL (CA State Bar No. 191303) (pro hac vice)
[e-mail]
CORYNNE MCSHERRY (CA State Bar No. 221504) (pro hac vice)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, California 94110
Telephone:
[phone]
Facsimile:
[phone]
CHAD BOWERS (NV State Bar No. 7283)
[e-mail]
CHAD A. BOWERS, LTD
3202 West Charleston Boulevard
Las Vegas, Nevada 89102
Telephone:
[phone]
Attorneys for Defendant and Counterclaimant
DEMOCRATIC UNDERGROUND, LLC, and
Defendant DAVID ALLEN
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
RIGHTHAVEN LLC, a Nevada limited liability company,
Plaintiff,
v.
DEMOCRATIC UNDERGROUND, LLC, a District of
Columbia limited-liability company; and DAVID ALLEN,
an individual,
Defendants.
DEMOCRATIC UNDERGROUND, LLC, a District of
Columbia limited-liability company,
Counterclaimant,
v.

Case No. 10-01356-RLH (GWF)
DECLARATION OF
LAURENCE F. PULGRAM
IN SUPPORT OF
DEFENDANTS’
SUPPLEMENTAL
MEMORANDUM
ADDRESSING RECENTLY
PRODUCED EVIDENCE
RELATING TO PENDING
MOTIONS

RIGHTHAVEN LLC, a Nevada limited liability company,
and STEPHENS MEDIA LLC, a Nevada limited-liability
company,
Counterdefendants.
PULGRAM DECL. ISO DEFS.’ SUPPL. MEMO
ADDRESSING RECENTLY PRODUCED EVIDENCE
RELATING TO PENDING MOTIONS

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

1

I, Laurence F. Pulgram, declare as follows:

2

1.

I am an attorney licensed to practice law in the state of California and a partner at

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Fenwick & West, LLP. I serve as one of the counsel for Defendant / Cross-Complainant

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Democratic Underground, LLC and Defendant David Allen (hereinafter “Defendants”) in this

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matter.

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2.

I have personal knowledge of the facts stated in this declaration, and if called upon

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to do so, could and would competently testify thereto. I make this declaration in support of

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Defendants’ Supplemental Memorandum Addressing Recently Produced Evidence Relating to

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Pending Motions.

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3.

On December 17, 2010, Defendants served a first set of Requests for Production of

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Documents on Plaintiff / Counterdefendant Righthaven, LLC and Counterdefendant Stephens

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Media, LLC. Responses by both parties were due on January 18, 2011. The due date was ten

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days before Defendants’ due date for their Reply in Support of the Motion for Summary

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Judgment was to be filed.

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4.

Amongst the Requests for Production made to Stephens Media were the following:


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Article to Righthaven”;


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

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(No. 10) “ALL DOCUMENTS that refer or relate to any ‘right of reversion’
referenced in the JULY 19, 2010 ASSIGNMENT”;



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(No. 11) “ALL DOCUMENTS that refer or relate to any ‘good and valuable
consideration’ referenced in the JULY 19, 2010 ASSIGNMENT”;



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(No. 8) “ALL DOCUMENTS that refer or relate to any ‘monetary
commitments’ referenced in the JULY 19, 2010 ASSIGNMENT”;

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(No. 3) “ALL DOCUMENTS concerning any assignment of rights in the News

(No. 56) “ALL contracts, agreements, investment DOCUMENTS, or other
terms between YOU and Righthaven.”

5.

On January 18, 2011, Stephens Media responded with objections to the Requests

for Production. Stephens Media produced no responsive documents.

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PULGRAM DECL. ISO DEFS.’ SUPPL. MEMO
ADDRESSING RECENTLY PRODUCED EVIDENCE
RELATING TO PENDING MOTIONS

1

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

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6.

Amongst the Requests for Production made to Righthaven were the following:


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(No. 3) “ALL DOCUMENTS concerning any potential or actual assignment of
rights in the NEWS ARTICLE to Righthaven”;



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(No. 8) “ALL DOCUMENTS that refer or RELATE TO any ‘monetary
commitments’ referenced in the JULY 19, 2010 ASSIGNMENT”;



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(No. 10) “ALL DOCUMENTS that refer or RELATE TO any ‘right of
reversion’ referenced in the JULY 19, 2010 ASSIGNMENT”;



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(No. 11) “ALL DOCUMENTS that refer or RELATE TO any ‘good and
valuable consideration’ referenced in the JULY 19, 2010 ASSIGNMENT”;



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(No. 45) “ALL contracts, agreements, investment DOCUMENTS, or other
terms between YOU and Stephens Media.

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7.

Righthaven, for its part, failed to respond or object to any of the Requests for

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Production by the due date of January 18, 2011. When Righthaven did ultimately respond to the

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Requests for Production, on January 24, 2011, it produced no responsive documents and has, to

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this date, still produced no documents.

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8.

On February 28, 2011, after an extended meet and confer process, Stephens

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Media made its first production of documents, totaling 94 pages, including a document Bates

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numbered SM000078 – SM000094, a true and correct copy of which is attached hereto as Exhibit

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A.

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9.

Defendants are submitting this document to the Court immediately to ensure that

the Court has access to it while considering the pending motions.
10.

Although counsel for Defendants have requested to receive the additional

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document referred to in Paragraph 2 of Exhibit A, it has not yet been provided by either

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Righthaven or Stephens Media.

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11.

Stephens Media produced Exhibit A designated “Confidential Attorneys Eyes

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Only” under the Stipulated Protective Order in this action. Dkt. 65. Defendants do not believe

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that a filing of Exhibit A, or at least the entirety of Exhibit A, is appropriately withheld from

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public view under the Stipulated Protective Order or governing law. Accordingly, pursuant to
PULGRAM DECL. ISO DEFS.’ SUPPL. MEMO
ADDRESSING RECENTLY PRODUCED EVIDENCE
RELATING TO PENDING MOTIONS

2

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

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Paragraph 19 of the Stipulated Protective Order, we have requested, in writing, that Stephens

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Media and Righthaven agree within five days that Exhibit A may be filed not under seal, in whole

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or in part. In the event that we are able to reach agreement with Stephens Media and Righthaven,

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it is our intention to file a stipulation as to which portions of Exhibit A, if any, are to remain

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under seal.

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12.

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I declare under penalty of perjury under the laws of the United States that the

foregoing is true and correct. Executed on March 4, 2011, in San Francisco, California.

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/s/ Laurence F. Pulgram
Laurence F. Pulgram
Fenwick & West, LLP

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PULGRAM DECL. ISO DEFS.’ SUPPL. MEMO
ADDRESSING RECENTLY PRODUCED EVIDENCE
RELATING TO PENDING MOTIONS

3

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

Exhibit A