The Cartoon Network LP. LLLP et al v. CSC Holdings, Inc. et al

Filing 58

RESPONSE in Opposition re: #24 MOTION for Summary Judgment. Redacted Version of Turner's Response To Defendants' Local Rule 56.1(b) Statement Of Additional Material Facts In Opposition To Plaintiffs' Motion For Summary Judgment And Restatement Of Certain Material Facts In Light Of Facts Obtained In Expert Discovery. Document filed by The Cartoon Network LP, LLLP, Turner Broadcasting System, Inc., Turner Classic Movies, L.P., LLLP, Turner Network Sales, Inc., Turner Network Television LP, LLLP, The Cartoon Network LP, LLLP, Cable News Network LP, LLLP, Cable News Network LP, LLLP, The Cartoon Network LP, LLLP, Cable News Network LP, LLLP. (Forrest, Katherine)

The Cartoon Network LP. LLLP et al v. CSC Holdings, Inc. et al

Doc. 58

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
X

THE CARTOON NETWORK LP, LLLP and CABLE NEWS NETWORK LP, LLLP, Plaintiffs/Counterclaim Defendants,
v.

06 Civ. 4092 (DC)

CSC HOLDINGS, INC. and CABLEVISION SYSTEMS CORPORATION, Defendants/Counterclaim Plaintiffs/ Third-Party Plaintiffs,
v.

TURNER BROADCASTING SYSTEM, INC., CABLE NEWS NETWORK LP, LLP, TURNER NETWORK SALES, INC., TURNER CLASSIC MOVIES, L.P., LLLP, TURNER NETWORK TELEVISION LP, LLLP, and THE CARTOON NETWORK LP, LLP, Third-Party Defendants.
X

TURNER'S RESPONSE TO DEFENDANTS' LOCAL RULE 56.1(b) STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND RESTATEMENT OF CERTAIN MATERIAL FACTS IN LIGHT OF FACTS OBTAINED IN EXPERT DISCOVERY Katherine B. Forrest Antony L. Ryan CRAVATH, SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 [phone] A ttorneys for Plaintiffs/Counterclaim Defendants Tlie Cartoon Network LP, LLLP and Cable News Network LP, LLLP and Third-Party Defendants Turner Broadcasting System, Inc., Turner Network Sales, Inc., Turner Classic Movies LP, LLLP and Turner Network Television LP, LLLP October 30, 2006 REDACTED VERSION COMPLETE VERSION FILED UNDER SEAL

Dockets.Justia.com

TURNER'S RESPONSE TO DEFENDANTS' LOCAL RULE 56.1(b) STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT On October 20,2006, two weeks after the due date for reply briefs in this case, Cablevision filed Defendants' Response to the Turner Plaintiffs' Third Statement of Material Facts. In addition to responding to facts asserted by Turner1 in support of its Summary Judgment Motion, Cablevision set forth additional facts under the heading "Defendants' Local Rule 56.1(b) Statement of Additional Material Facts in Opposition to Plaintiffs' Motion for Summary Judgment". Turner contests these additional facts as follows: /. The RS-DVR will enable customers with non-DVR digital cable boxes to record the same television programming as Cablevision customers who have the SA 8300 box. Third Hemani Deci. Ex. B, Gottesman Dep. at 228:22-229:6. 1. Turner denies that the RS-DVR Service will "enable customers" to record anything as part of the RS-DVR Service. The RS-DVR Service will enable Cablevision subscribers to request that Cablevision record programming for mem. (Turner SoF 1103.)

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3. All storage space allocated to a specific user in the Arroyo server of the RS-DVR is stored on a single physical drive. Third Hemani Deci, Ex. F, Deposition of Kirk Plaintiff? MK} Ccuuttrelaim Defendants The Cartoon Network LP, LLLP and Cable News Network LP, LLLP and Third-Party Defendants Turner Broadcasting System, Inc., Turner Network Sales, Inc., Turner Classic Movies LP, LLLP and Turner Network Television LP, LLLP are herein collectively referred to as 'Turner".
1

Blattman, dated August 11, 2006, at 109:17-110:8; Third Hemani Decl. Ex. E. Horowitz Rebuttal Report ^9. 3. Denied, except Turner admits that Cablevision will allocate a specific number of gigabytes of storage on Cablevision's hard drives to each RS-DVR Service subscriber. Responding further, Turner states that, although Cablevision claims that it will store copies for up to four individual RS-DVR Service subscribers on hard drives in Arroyo servers located at the head-end, the copies do not exist in a contiguous block on a given hard drive, and Cablevision has "no method of viewing the memory location" of recordings it has made on a particular hard drive, which means that Cablevision cannot know whether files associated with a particular subscriber are all contained on the same hard drive. (Turner SoF |f 103-104,106-108; Caramanica Tr. (tab 66) at 73:3-76:4, 179:23-182:9; Caramanica Ex. 14 (tab 71) at CSC054568, CSC054570.)
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5. The terms "networkDVR" (nDVR) and "networkPVR" (nPVR) do not have a standard industry definition, and are used loosely by different people to refer to different systems and technologies. Third Hemani Decl., Ex. G, Deposition of Glenn Reitmeier, dated September 5. 2006, at 168:7-10, 171:22-172:5; Third Hemani Decl, Ex. B. Gottesman Dep. at 35:4-17, 37:7-8. 5. Turner denies that the term "network DVR" ("nDVR"), which is also sometimes referred to as a "network PVR" ("nPVR"), does not have a standard definition within the cable television industry. The term nDVR or nPVR refers to a system where a cable operator "use[s] a video file server to capture programs as they are broadcast and men to allow subscribers to view them later as a VOD program". (Walter Ciciora et al., Modern Cable Television Technology (tab 27) 389 (2d ed. 2004).) The term nDVR or nPVR refers to technologies such as the proposed RS-DVR Service, and it applies equally to other technologies, such as the "StartOver" service from Time Warner Cable, where the cable operator records only those programs for which it has obtained a license. (DeHart Tr. (tab 87) at 44:11-45:24; 70:7-71:10; 72:18-21.)

TURNER'S RESTATEMENT OF CERTAIN MATERIAL FACTS IN LIGHT OF FACTS OBTAINED IN EXPERT DISCOVERY Pursuant to Rule 56.1 (a) of the Local Rules of the United States District Court for the Southern District of New York and this Court's Order of September 6,2006, Turner hereby presents additional factual support for certain material facts previously set out in its Statement of Material Facts Pursuant to Local Rule 56. l(a) in Support of Turner's Motion for Summary Judgment dated August 25,2006. Certain of these facts are restated in light of additional facts obtained in discovery after the reply briefs were filed on October 6, 2006.

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October 30,2006 Respectfully submitted, CRA VATH, SWAINE & MOORE LLP

By
Katherine B. Fonest (KF-1979) Antony L. Ryan (AR-0394) Worldwide Plaza 825 Eighth Avenue New York, NY 10019 [phone] Attorneys for Turner Plaintiffs, Counterclaim Defendants and Third-Party Defendants