Response ReplyCal. Super. - 6th Dist.September 20, 2017 __________________________________________________________________________________________ PLAINTIFF’S REPLY TO FACEBOOK INC.’S OPPOSITION TO MTC COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10516827 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MICHAEL W. STEBBINS, SBN 138326 Email: mws@svlg.com MARC G. VAN NIEKERK, SBN 201329 Email: mvn@svlg.com SILICON VALLEY LAW GROUP 1 North Market Street, Suite 200 San Jose, CA 95113 Telephone: (408) 573-5700 Facsimile: (408) 573-5701 Attorneys for Plaintiff beIN IP, Ltd. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA BEIN, IP, Ltd., Plaintiff, vs. BEOUTQ; and DOES 1 - 20 inclusive, Defendants. Case No.: 17CV316099 PLAINTIFF’S REPLY TO FACEBOOK, INC.’S OPPOSITION TO MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS Date: May 1, 2018 Time: 9:00 a.m. Dept.: 13 Judge: Hon. James L. Stoelker Complaint Filed: September 20, 2017 Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/24/2018 12:57 PM Reviewed By: A. Floresca Case #17CV316099 Envelope: 1444820 17CV316099 Santa Clara - Civil A. Floresca __________________________________________________________________________________________ PLAINTIFF’S REPLY TO FACEBOOK INC.’S OPPOSITION TO MTC COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 1 10516827 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff beIN IP, Ltd. (“beIN” or “Plaintiff”) respectfully submits the following reply to the opposition of Facebook, Inc. (“Facebook”) to plaintiff’s motion to compel compliance with the deposition subpoena for production of business records. I. INTRODUCTION beIN’s subpoena to Facebook requests information concerning anonymous Facebook users, who are encouraging beOUT’s piracy of beIN content, sufficient to identify their identity and location. beOUT’s contempt for beIN’s intellectual property rights is reflected by its choice of name - a mirror image of beIN’s. Similarly, the vast majority of the Facebook users’ “handles” contain “beOUT” in some form. No Sherlockian machinations are required to deduce that the Facebook users about whom beIN seeks information are involved in beOUT’s blatant wrongful conduct. And yet Facebook denies the undeniable and wants this court to require absolute proof of the involvement in the scheme when beIN will only be able to provide such proof once it obtains the information it seeks from Facebook. It is the very epitome of a Catch-22 situation. Facebook’s opposition to beIN’s motion reiterates the same arguments it made in its motion to quash the subpoena or to limit discovery and relies heavily on the very fact specific Calcor case. By reading that case far more broadly than is warranted, Facebook argues for a standard that is at odds with California’s liberal discovery policies. As such, the case is inapposite. beIN’s motion to compel should be granted. II. LEGAL ANALYSIS A. California’s Rules of Civil Discovery are Liberally Construed in Favor of Disclosure. In order to accomplish the various legislative purposes of the discovery law, the California rules of civil discovery are liberally construed in favor of disclosure. Pratt v. Union Pacific R. Co., 168 Cal. App. 4th 165 (2008). Any doubt about discovery is to be resolved in favor of disclosure. Advanced Modular Sputtering, Inc. v. Superior Court, 132 Cal. App. 4th 826 (2005). Absent a showing that substantial interests will be impaired by __________________________________________________________________________________________ PLAINTIFF’S REPLY TO FACEBOOK INC.’S OPPOSITION TO MTC COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 2 10516827 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allowing discovery, liberal policies of discovery rules will generally counsel against overturning a trial court’s decision granting discovery and militate in favor of overturning a decision to deny discovery. Flagship Theatres of Palm Desert, LLC v. Century Theatres, Inc., 198 Cal. App. 4th 1366 (2011). Public policy requires that litigants be liberally afforded discovery to the end that justice be dispensed fairly and speedily. In re Bongfeldt, 22 Cal. App. 3d 465 (1971). Only strong public policies weigh against disclosure. U. S. v. Procter & Gamble Co., 356 U.S. 677 (1958). Because all issues and arguments that will come to light at trial often cannot be ascertained at the time when discovery is sought, the courts may appropriately give an applicant substantial leeway. Forthmann v. Boyer, 97 Cal. App. 4th 977 (2002). B. Good Cause Exists for Production of the Documents Sought by the Subpoena. beIN seeks information concerning beOUT, an entity that is pirating beIN’s sublicensed programs, and concerning other potential defendants. (Declaration of Marc G. van Niekerk I/S/O Motion to Compel [“Van Niekerk Decl.”], ¶¶2-4, 11-12.) It is difficult to understand how the information sought is not discoverable or why it should not be disclosed by Facebook. A litigant is entitled to learn the identity and location of persons having knowledge of any discoverable matter as a matter of right unless statutory or public policy considerations clearly prohibit it. Williams v. Superior Court, 3 Cal. 5th 531 (2017): In the absence of contrary court order, a civil litigant’s right to discovery is broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., §2017.010; see Davies v. Superior Court (1984) 36 Cal. 3d 291, 301, 204 Cal. Rptr. 154, 682 P.2d 349 [“discovery is not limited to admissible evidence”].) This right includes an entitlement to learn “the identity and location of persons having knowledge of any discoverable matter.” (§2017.010) Section 2017.010 and other statutes governing discovery “must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.” __________________________________________________________________________________________ PLAINTIFF’S REPLY TO FACEBOOK INC.’S OPPOSITION TO MTC COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 3 10516827 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Greyhound Corp. v. Superior Court, supra, 56 Cal. 2d at p. 377, 15 Cal. Rptr. 90, 364 P.2d 266.) This means that “disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it.” (Id. at p. 378, 15 Cal. Rptr. 90, 364 P.2d 266.) Williams, supra, at 541. Facebook cites to no statute or public policy consideration which would “clearly prohibit” production of the information sought - the identity and location of persons having knowledge of beOUT’s wrongful conduct. And the information sought is precisely the type that “cannot be ascertained at the time when discovery is sought” and when “the courts may appropriately give an applicant substantial leeway.” Forthmann, supra, 97 Cal. App. 4th at 977-978. Instead, Facebook argues that beIN has made no showing that the information sought is itself admissible or likely to lead to the discovery of admissible evidence, relying on Calcor Space Facility, Inc. v. Superior Court, 53 Cal. App. 4th 216, 223 (1997). That case is inapposite. The facts in the Calcor case are entirely different and distinguishable from those present in the instant case. Calcor involved a dispute between a subcontractor, Thiem, and a contractor, Delco, concerning a contract to supply gun mounts to the contractor. 53 Cal. App. 4th at 219. Delco rejected the mounts manufactured by Thiem and instead contracted with Calcor to supply them. Id. Thiem served a subpoena on Calcor, a competitor, requiring the production of all materials in its possession relating to gun mounts going back ten years. Id. Calcor sought a protective order on the basis that the subpoena was overly broad and burdensome, sought confidential materials and sought information not relevant to the subject matter of the law suit since Calcor had three contracts with Delco for gun mounts, only one of which related to the mounts which were the subject matter of the litigation between the parties. Id. at 220. The trial court granted Thiem’s motion to compel and denied Calcor’s motion for a protective order. The Court of Appeal issued an alternative writ and the trial court modified its order, but Calcor objected to dismissal of the writ following the modification and the Court of Appeal heard the matter. Id. at 221. The Court of Appeal characterized the subpoena as a fishing expedition and as one __________________________________________________________________________________________ PLAINTIFF’S REPLY TO FACEBOOK INC.’S OPPOSITION TO MTC COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 4 10516827 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that could be limited by the court because it was entirely improper. Id. at 223-225. It determined that the issue in the litigation was whether Thiem’s work met Delco’s specifications. Id. at 225. It then held that this issue could be determined “without any reference to the contract between Delco and Calcor or the specifications which are part of that contract.” Id. In Calcor, the court’s point was that discovery from a nonparty should not be cumulative of that available from a party and should be viewed in context of the unique factual circumstances presented in that case, where the burden on the nonparty in providing the information requested far outweighed its extremely limited relevance. If a nonparty is exclusively in possession of relevant documents that otherwise meet California liberal discovery standards, Calcor should provide no basis for denying that discovery. See Presiding Justice Lee Smalley Edmon and Judge Curtis E.A. Karnow, Cal. Prac. Guide: Civ. Proc. Before Trial, (TRG 2017), Ch. 8:E, ¶8:609.3 (“A showing of ‘good cause’ is required on motions to compel document discovery from a party under CCP §2025.450(b)(1) but there is apparently no such requirement on a motion to compel a nonparty to comply with a deposition subpoena for document production.”) Moreover, none of the concerns in Calcor are present here. beIN’s Subpoena is not directed at a competitor nor does it seek confidential or proprietary information. It seeks information concerning beOUT, an entity that is pirating beIN’s sublicensed programs, and concerning other potential defendants. (Van Niekerk Decl., ¶¶2-4, 12-13.) beOUT has used various social media accounts on Facebook to promote its wrongful activities and to steer customers to the www.BeoutQ.se website, a portal for such improper acts. (Id., ¶4.) The information sought is obviously not available to Plaintiff elsewhere. A much more analogous situation was present in DFSB Kollective Co. Ltd. v. Jenpoo, (2011 WL 2314161), No. 11-1050 SC (N.D. Cal. June 10. 2011). In that case, the plaintiffs filed suit alleging copyright infringement against a Michael Jenpoo doing business as Jenpoo.com and ten unnamed defendants. Id. at *1. Plaintiffs alleged that the defendants operated a website providing fans of Korean music with a “one-stop shop for infringing __________________________________________________________________________________________ PLAINTIFF’S REPLY TO FACEBOOK INC.’S OPPOSITION TO MTC COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 5 10516827 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 material.” Id. Plaintiffs further alleged that defendants used accounts on social networking sites on Facebook and Twitter “to advertise and drive traffic to jenpoo.com.” Id. Plaintiffs also alleged that “despite spending ‘a considerable amount of time and resources tracing all legal names and contact information for Defendant’ they have not identified Defendants’ names or contact information.” Id. Accordingly, Plaintiffs sought leave to take limited discovery prior to the Rule 26 conference, and the court had no trouble in granting the application. Id. at *2. In doing so, the court determined that a “third-party subpoena appears to be the only way that Plaintiffs can identify Defendants and Plaintiffs must identify them in order to effect service of process.” Id. The court found that Plaintiffs should be permitted to serve subpoenas on, inter alia, Facebook and Twitter to obtain the information associated with a number of users. Id. at *3. In doing so, the court noted that the subpoena could be quashed or modified pursuant to FRCP 45(c)(3)(A)(iii) and (iv) if it required disclosure of privileged or other protected matter or subjected a person to undue burden. Clearly, the court recognized the relevance of the information sought by plaintiffs in the DFSB Kollective case, which is exactly the information sought by beIN’s Subpoena and for the same reasons. By providing beIN with identification information for each of these persons or entities, beIN will be able to identify the whereabouts and identification information for each person or entity involved in beOUT’s wide ranging piracy. (Van Niekerk Decl., ¶13.) Nearly all the Facebook IDs for which beIN seeks information contain “beOUT” in their handles. (Van Niekerk Decl., ¶12.) The rest were determined by close examination to be involved in beOUT’s wrongful activities. (Id.) beIN has clearly shown that the information sought is relevant to the issues in the lawsuit and that good cause exists for its production. C. Movant Has Failed to Establish that the Subpoena is Unduly Burdensome. As set forth in detail in beIN’s opposition to Facebook’s motion to quash, Facebook has utterly failed to discharge its burden to establish that the subpoena imposes and undue burden on Facebook. (Opposition to Facebook, Inc.’s Motion to Quash, 8:23-11:10.) Given __________________________________________________________________________________________ PLAINTIFF’S REPLY TO FACEBOOK INC.’S OPPOSITION TO MTC COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 6 10516827 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 there is no showing of burden, the motion must be granted. D. Any Privacy Rights Held by Users Must Give Way to the Right of Plaintiff to Pursue its Claims. As set forth in detail beIN’s opposition to Facebook’s motion to quash, any privacy rights held by Facebook users must give way to beIN’s right to pursue its claims. (Opposition to Facebook, Inc.’s Motion to Quash, 11:11-13-18.) beIN’s right to information about the potential identity and whereabouts of the alleged wrongdoers, which cannot be obtained in any other fashion, outweighs the wrongdoers’ purported privacy rights. E. Plaintiff Does Not Seek the Contents of Any Communications. The Stored Communications Act is irrelevant to this motion. As Facebook’s counsel is well aware, beIN has already agreed to forego the contents of any communications between users. (Van Niekerk Decl., ¶6, Ex. I.) Accordingly, Movant’s present arguments regarding communications among users can be ignored. F. There is no Basis for Facebook to Delay Production of the Information Sought by the Subpoena. Facebook boldly claims that if this Court orders compliance with the subpoena, it will ignore the order and provide notice to the affected users and allow them 21 days to object to the subpoena before producing any information. (Opp. Brief, 3:2, fn. 1.) Unsurprisingly, Facebook cites no authority to support its contention that it can ignore an order of this court that it produce the information sought by the subpoena. In fact, no notice to Facebook users is required where the entity has stepped into the shoes of its users and made objections on their behalf. See, e.g. Glass Door, Inc. v. Superior Court, 9 Cal. App. 5th 623, 633 (2017) (“Doe could of course engage counsel on his behalf, but there is no reason to believe that this would yield better representation than Glassdoor will provide . . . . If the publisher is willing to ameliorate this inhibiting effect [the cost to the user] by stepping into it contributors’ shoes when their anonymity is threatened, we see no sound reason to forbid it.”) Once this Court decides this motion, the matter is law of the case and the users will have no basis to attack the Subpoenas on the grounds already raised by Facebook. __________________________________________________________________________________________ PLAINTIFF’S REPLY TO FACEBOOK INC.’S OPPOSITION TO MTC COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 7 10516827 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION For the forgoing reasons, and for the reasons set forth in its opening brief, Plaintiff beIN respectfully requests that the Court grant its motion to compel for an order of compliance with the deposition subpoena for production of business records to Facebook, Inc. Dated: April 24, 2018 SILICON VALLEY LAW GROUP A Law Corporation By: /s/ Marc G. van Niekerk Michael W. Stebbins Marc van Niekerk Attorneys for Plaintiff BEIN IP, LTD.
