Castro v. Entrepreneur Media, Inc.

Filing 50

Miscellaneous Objection to 48 ADR Report - Other Opposition to Plaintiff's ADR Report Requests by Entrepreneur Media, Inc.. (Barry, Jennifer)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DANIEL R. CASTRO,
Plaintiff,
v.
ENTREPRENEUR MEDIA, INC.,
Defendant.

ENTREPRENEUR MEDIA, INC.,
Counterclaimant,
v.
DANIEL R. CASTRO,
Counterdefendant.

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Cause No. 1-10-CV-000695-LY
Hon. Lee Yeakel

DEFENDANT ENTREPRENEUR MEDIA, INC.’S OPPOSITION TO
PLAINTIFF’S ADR REPORT REQUESTS
Plaintiff Daniel R. Castro (“Castro”) filed an ADR Report on June 15, 2011 (Dkt #48), in
which he made numerous unsupported factual statements, and requested that the Court (i) permit
Castro to file under seal the last version of the settlement agreement discussed at the mediation
held on June 13, 2011, and (ii) order the Chairman/CEO of Entrepreneur Media, Inc. (“EMI”),
Peter Shea, to attend the upcoming Initial Pretrial Conference so that the Court can “ask [Mr.
Shea] personally what the remaining ‘significant’ issues are that would prevent the settlement
from being finalized.” Castro’s ADR Report at 4.
Other than to state that Castro’s representations regarding what transpired and what was
said at the mediation and in subsequent conversations are inaccurate and misleading, as well as
confidential settlement communications, EMI will not respond to the substance of those

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statements in a public filing such as this, but would be happy to respond substantively if the
Court so requests.
EMI opposes Castro’s two requests. First, per the Court’s Scheduling Order, “[a]ll offers
of settlement are to be private, not filed, and the Court is not to be advised of the same.”
Similarly, the parties’ settlement negotiations and marked-up proposals should be private and
should not be filed or shared with the Court. In addition, there is no reason for the Court to
review the draft proposals, as they are unsigned drafts, and not binding. The parties did not
reach an agreement at the mediation.
Second, it is inappropriate for Castro to seek to force the appearance of Mr. Shea at the
Initial Pretrial Conference and elicit testimony from him, particularly as to what occurred during
a private mediation. If the Court should require any information from EMI regarding the
mediation, it can be provided through EMI’s counsel at the Conference. Mr. Shea should not
have to spend the time and expense of flying to Austin to provide information that can be
presented much more efficiently through other means.
EMI therefore requests that the Court deny Castro’s ADR Report requests.
Respectfully submitted,
Dated: June 20, 2011

By: /s/ Jennifer L. Barry
William G. Barber
PIRKEY BARBER LLP
Texas State Bar No. 01713050
600 Congress Avenue, Suite 2120
Austin, TX 78701
[phone] / [phone] Fax
Perry J. Viscounty (Admitted Pro Hac Vice)
LATHAM & WATKINS LLP
650 Town Center Drive, 20th Floor
Costa Mesa, CA 92626
[phone] / [phone] Fax

SD\792797.1

Jennifer L. Barry (Admitted Pro Hac Vice)
LATHAM & WATKINS LLP
600 West Broadway, Suite 1800
San Diego, CA 92101
[phone] / [phone] Fax
Attorneys for Defendant/Counterclaimant
ENTREPRENEUR MEDIA, INC.

CERTIFICATE OF SERVICE
I hereby certify the on June 20, 2011, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system which will send notification of such filing to the following:
Daniel R. Castro
CASTRO & BAKER, LLP
7800 Shoal Creek Blvd., Suite 100N
Austin, TX 78757
/s/ Jennifer L. Barry
Jennifer L. Barry

SD\792797.1