Google v. Pacific Webworks
MEMORANDUM in Support re 27 MOTION to Quash Subpoena filed by Movant www.goog-money-tree.com. and by Movant www.googlemoneyprofitsystem.com (Christiansen, Gregory) Modified on 1/26/2010 to add www.googlemoneyprofitsystem.com as Movant (jmr).
Blair R. Jackson (10170) CHRISTIANSEN & JACKSON, PC 10421 South Jordan Gateway, Suite 600 South Jordan, Utah 84095 Telephone: (801) 576-2662 Facsimile: (801) 415-9340
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
In re: www.goog-money-tree.com, and www.google moneyprofitsystem.com _______________________________________
MEMORADUM IN SUPPORT OF MOTION TO QUASH SUBPOENA
Case No.: 2:09-CV-01068 GOOGLE, INC. Judge Bruce S. Jenkins Plaintiff v. PACIFIC WEBWORKS, INC. Defendant Owner of domains www.goog-money-tree.com and www.googlemoneyprofitsystem.com (hereinafter "Domain Owner"), by and through its attorney of record, files this Memorandum in Support of Motion to Quash Subpoena pursuant to Federal Rules of Civil Procedure, Rule 45(c)(3)(i), (iii), and (iv).
BACKGROUND In or around 10:00 am on Friday, January 22, 2010, Domain Owner received an email from its domain registrant, godaddy.com, stating as follows: This email is to inform you that we have received a properly formatted subpoena for documents in the following civil action: Google Inc. v Pacific Webworks, Inc. pending in the United States District Court for the District of Utah and issued by the United States District Court for the District of Arizona, Civil Action No. 2:09-cv-1068. Our response to this subpoena may require us to disclose some of your personally identifiable information. Therefore, we are providing this notice as a courtesy to give you an opportunity to object to the subpoena. The only way to object to a properly filed subpoena is by filing an objection with the court in which the matter is pending. If we do not receive an objection notice within 2 business days indicating that you have filed an objection, we will continue with producing the documents requested and charge your account according to our registration agreement. In order to obtain further information related to the pending litigation or a copy of the subpoena, you may contact counsel for the requesting party as follows: Katherine Keating, Esq. Holme Roberts & Owen, LLP 560 Mission St., 25th Floor San Francisco, CA 94105 415.268.1972 Telephone Said email was received in duplicate, one for www.goog-money-tree.com and another for www.googlemoneyprofitsystem.com. Neither domain, nor its registration information, has anything to do with the Google, Inc. v. Pacific Webworks Inc. matter. In fact, www.googlemoneyprofitsystem.com was a purchased domain that was never used by Domain Owner in any manner. Indeed, if Google, Inc. wants to have that domain, Domain Owner will simply transfer the domain to Google, Inc. Further, Domain Owner did not receive a copy of the subpoena, nor is it being demanded to respond. GoDaddy.com received the subpoena and it carries this burden. However, because
Domain Owner is "affected by a subpoena" it too may quash the subpoena pursuant to FRCP 45(c)(3)(B)(i). GoDaddy.com did not forward a copy of the subpoena to Domain Owner, and upon request to its counsel, did not forward to Domain Owner's Counsel. GoDaddy.com referred Domain Owner to counsel for Google, Inc. to obtain a copy of the subpoena. When counsel requested a copy of the subpoena from Counsel for Google, Inc, Katherine Keating, it received an auto-reply responder saying Ms. Keating was out of the office until Wednesday, January 27, 2010, with limited access to email. Counsel for Domain Manager requested a copy of the subpoena from an assistant to Ms. Keating who at time of filing has not responded to counsel for Domain Owner. Therefore, Domain Owner has not seen the subpoena, but is being required to have its information turned over to Google, Inc unless it responds with an objection by January 25, 2010. THE SUBPOENA SHOULD BE QUASHED PURSUANT TO RULE 45(c)(3)(A)(i) AS 2 DAYS IS INSUFFICIENT TIME TO RESPOND TO THE REQUEST AND DOMAIN OWNER HAS NOT SEEN THE SUBPOENA Rule 45(c)(3)(A)(i) does not specify what constitutes a reasonable length of time for compliance with a subpoena. However, in this instance, two (2) days is an unreasonable amount of time. Domain Owner has not seen the subpoena. Because its information is being demanded, it should have an opportunity to consider the merits of the subpoena before its information is turned over to Google, Inc.
THE SUBPOENA SHOULD BE QUASHED PURSUANT TO RULE 45(c)(3)(A)(iii) BECAUSE IT REQUIRES DISCLOSURE OF PRIVILEGED OR PROTECTED MATTER Rule 45(c)(3)(A)(iii) provides safeguards for privileged or other protected matter from the subpoena power. Domain Owner does not know what information is being requested from Google, Inc., but it objects to the subpoena on the grounds that its information should be reviewed to see if a privilege or protection exists to safeguard the dissemination of its private information. THE SUBPOENA SHOULD BE QUASHED PURSUANT TO RULE 45(c)(3)(A)(iv) BECAUSE IT PLACES AN UNDUE BURDEN ON DOMAIN OWNER Rule 45(c)(3)(A)(iv) requires the court to quash a subpoena deemed to impose an undue burden or expense to anyone subject to the subpoena. Here, Domain Owner is required to pay the attorney's fees and costs of GoDaddy.com to respond to the unseen subpoena and for a matter in which it has no interest. Domain Owner should not be required to finance Google's action against Pacific Webworks, Inc. CONCLUSION For the reasons set out above, the subpoena's filed against Owner of domains www.googmoney-tree.com and www.googlemoneyprofitsystem.com should be quashed. DATED this _25th_ day of January, 2010. s/ Blair R. Jackson_____________________ Blair R. Jackson Attorney for Domain Owner
CERTIFICATE OF SERVICE BY MAIL, HAND DELIVERY OR FACSIMILE TRANSMISSION I hereby certify that a true and correct copy of the foregoing document was on this date served upon the persons named below, at the addresses set out below their name, either by mailing, hand delivery or by telecopying to them a true and correct copy of said document in a properly addressed envelope in the United States mail, postage prepaid; by hand delivery to them; or by facsimile transmission. Blaine J Benard Holme Roberts & Owen, LLP 299 S Main Street, Suite 1800 Salt Lake City, Utah 84111 Katherine Keating, Esq. Holme Roberts & Owen, LLP 560 Mission St., 25th Floor San Francisco, CA 94105 Alan L. Sullivan Robert E. Mansfield Snell & Wilmer 15 W South Temple Suite 1200 Salt Lake City, Utah 84101 Jeffery M. Lillywhite 12176 Pine Valley Way Draper, Utah 84020 GoDaddy.Com C. Lovetro Compliance Manager 480-624-2546 Facsimile DATED this 25th day of January, 2010 s/ Blair R. Jackson Blair R. Jackson [ x ] Mail [ ] Facsimile [ x ] Electronic Delivery [ x ] Mail [ ] Facsimile [ x ] Electronic Delivery
[ x ] Mail [ ] Facsimile [ x ] Electronic Delivery [ x ] Mail [ ] Facsimile [ ] Electronic Delivery [ x ] Mail [ ] Facsimile [ ] Electronic Delivery
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