Opposition ObjectionsCal. Super. - 6th Dist.November 23, 2020COOLEY LLP ATTORNEYS AT LAW PALO ALTO OOQQ \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ZOCV373940 Santa Clara - Civil COOLEY LLP GREGORY C. TENHOFF (154553) (tenhoffgc@cooley.com) HELEN LUU (300759) (hluu@cooley.com) JOSHUA E. ELEFANT (3 129 1 3) ( jelefant@cooley.com) 3 175 Hanover Street Palo Alto, California 94304-1 130 Telephone: +1 650 843 5000 Facsimile: +1 650 849 7400 R. Burciz Electronically Filed by Superior Court of CA, County of Santa Clara, on 12l1 7l2020 11:04 AM Reviewed By: R. Burciaga Case #20CV373940 Envelope: 5491 1 34 Attorneys for Defendants Roku, Inc. and Long-Ji Lin SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA J DOE, as an individual, Plaintiff, v. ROKU, INC., a Delaware corporation; LONG-JI LIN, an individual, and DOES 1 through 50, inclusive, Defendants. Case No. 20CV373940 DEFENDANTS’ OPPOSITION T0 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER T0 SHOW CAUSE RE PRELIMINARY INJUNCTION Date: Dec. 18, 2020 Time: 8:15 am. Dept: 19 Trial Date: Not yet set Date Action Filed: November 23, 2020 DEFENDANTS’ OPP T0 APPLICATION FOR TRO, CASE No. 20CV373940 ga COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. IV. TABLE OF CONTENTS PAGE INTRODUCTION. ............................................................................................................. 1 FACTUAL BACKGROUND. ............................................................................................ 2 PLAINTIFF CANNOT MEET PLAINTIFF’S BURDEN TO OBTAIN A TEMPORARY RESTRAINING ORDER. ......................................................................... 5 A. Plaintiff Has Not Shown a Likelihood of Success on the Two Forms 0f Relief Sought........................................................................................................... 5 1. Plaintiff” s Request for an Order Restraining Defendants From Making Any Statement t0 the Media and Anyone Person Other Than Defendants’ Directors, Officers, Counsel, Plaintiff and Plaintiff s Counsel) That Identifies PlaintiffAs The Plaintiff In This Case Constitutes an Impermissible Prior Restraint on Speech. .......... 5 2. Plaintiff Has Not Met the Requirements Justifying the Use of a Fictitious Name In This Lawsuit ................................................................. 8 B. Plaintiff Has Not Shown That Plaintiff Will Suffer Immediate Irreparable Harm As A Result ofAny Speculative Future Conduct By Defendants. ............. 10 C. The Balance of Harms Weighs Against Granting the Application. ...................... 11 CONCLUSION. ................................................................................................................ 13 _ i _ DEFENDANTS’ OPP T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES PAGE(S) Cases Doe v. Blue Cross & Blue Shield United 0f Wisconsin, 112 F.3d 869 (7th Cir. 1997) ................................................................................................. 8, 9 Doe v. Frank, 951 F.2d 320 (1 1th Cir. 1992) ................................................................................................... 8 Doe v. Indiana Black Expo, 923 F.Supp. 137 (S.D. Ind. 1996) ......................................................................................... 8, 9 Doe v. Lincoln Unified School Dist, 188 Cal. App. 4th 758 (2010) ................................................................................................... 8 Does I thru XXIII v. Advanced Textile Corp, 214 F.3d 1058 (9th Cir. 2000) ............................................................................................... 8, 9 Gilbert v. National Enquirer, Ina, 43 Cal. App. 4th 1135 (1996) ................................................................................................... 6 Goldie ’s Bookstore, Inc. v. Superior Court ofState 0fCal., 738 F. 2d 466 (9th Cir. 1984) .................................................................................................. 11 Hurvitz v. Hoeflin, 84 Cal. App. 4th 1232 (2000) ......................................................................................... 6, 7, 12 IT Corp. v. County oflmperial, 35 Cal. 3d 63 (1983) ................................................................................................................. 5 Korean Philadelphia Presbyterian Church v. California Presbytery, 77 Cal. App. 4th 1069 (2000) ................................................................................................. 10 Maggi v. Superior Court, 119 Cal. App. 4th 1218 (2004) ................................................................................................. 7 Farris v. Superior Court, 109 Cal. App. 4th 285 (2003) ................................................................................................... 6 San Francisco Unified School Dist. ex. Rel. Contreras v. First Student, Ina, 213 Cal. App. 4th 1212 (2013) ................................................................................................ 7 Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) .................................................................................................................... 11 Other Authorities California Constitution Art. 1, § 2 .................................................................................................. 5 _ii_ DEFENDANTS’ OPP T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES PAGE(S) California Rules 0f Court § 2.550(0) .................................................................................................................................. 8 § 5.165 ....................................................................................................................................... 4 Local Rule 8(f) ................................................................................................................................ 4 -iii- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION. In Plaintiff’ s EX Parte Application for a Temporary Restraining Order and Order t0 Show Cause re: Preliminary Injunction (the “Application”), Plaintiff asks this Court to use its extraordinary injunction power t0 prevent Roku, Inc. (“Roku”) and Long-Ji Lin (collectively, the “Defendants”) from using Plaintiff’ s true name in these court proceedings or any documents filed with this Court, and from making certain statements to the media or t0 anyone else in the world (other than a very limited group 0f individuals). Though the Application masks the two forms of relief sought as reliefneeded t0 preserve Plaintiff s anonymity and reputation; in actuality, Plaintiff is seeking an order to curb Defendants’ constitutional right to free speech, deny the public the right t0 the full access of the court records, and prejudice Defendants’ ability t0 defend themselves in this lawsuit. This Application should be denied. First, Plaintiff cannot show a likelihood of success 0n the merits with respect t0 the two forms 0f relief sought through the Application. Specifically: o With respect to the request that this Court issue an order restraining Defendants from making any statement to the media and any person (other than Defendants’ directors, officers, counsel, Plaintiff, and Plaintiff’ s counsel) that identifies Plaintiff as the plaintiff in this case, Plaintiff cannot prevail 0n this form 0f reliefbecause the relief, if granted, constitutes an unconstitutionalprior restraint 0n speech; and 0 As t0 the request t0 restrain Defendants from identifying Plaintiff’s true name 0r referring t0 Plaintiff’ s name by anything other than “J Doe” in these proceedings 0r in documents filed in this Court, Plaintiff cannot show a likelihood of success given the presumption that court records are open t0 the public, and thus, the use 0f a pseudonym is only allowed in exceptional circumstances, none ofWhich are present here. Second, Plaintiff cannot show that Plaintiff would suffer immediate irreparable harm if reliefwas not granted because Plaintiffhas presented n0 evidence 0fany such harm. While Plaintiff alleges that Defendants threatened t0 disclose Plaintiff’s identity or make statements about Plaintiff s identity, that allegation is false. At no point have Defendants or their counsel made any such “threats.” Moreover, Plaintiff has presented n0 evidence that Plaintiff would suffer any irreparable harm t0 Plaintiff s reputation if the Court does not grant the requested relief; instead, Plaintiff” s claim 0f irreparable harm to Plaintiff s reputation is pure speculation. Third, the balance 0f hardships weighs in Defendants’ favor. While Plaintiff claims -1- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 speculative reputational harm, Defendants would be highly prejudiced in their ability to conduct discovery, additional factual investigation, and ultimately to defend themselves in this lawsuit. Consequently, at least one California court has expressly rejected a very similar attempt. Simply put, Plaintiff has not met Plaintiff’s burden in showing Plaintiff is entitled to a temporary restraining order here, and therefore, Defendants ask this Court t0 deny Plaintiff’s Application. In the alternative, given the shortened timing t0 brief these issues since Plaintiff chose t0 raise them in connection With ex part6 injunctive relief upon minimal notice, Defendants propose that the Court: (1) set a regular briefing and hearing schedule for a motion on Plaintiff s ability t0 pursue this case as a “Doe” plaintiff With a stipulation that Defendants will not file anything With this Court that identifies Plaintiffby name (unless under seal) until the motion is heard and decided; and (2) require the parties negotiate in good faith to enter into a stipulated protective order that governs the use 0f confidential information in this case (Which, among other things, Will cover Plaintiff” s identity until the motion is heard and decided). II. FACTUAL BACKGROUND. On November 12, 2020, prior t0 filing the Complaint, Plaintiff’ s counsel asked Defendants” counsel Via email Whether Defendants would be willing t0 stipulate to Plaintiff proceeding with this lawsuit under a pseudonym. (Declaration 0f Gregory C. Tenhoff in Support of Defendants’ Opposition to Plaintiffs EX Parte Application for a Temporary Restraining Order and Order t0 Show Cause Re: Preliminary Injunction (“Tenhoff Declaration”) at 11 2, Exhibit A.) In their email response on November 16, 2020, Defendants’ counsel responded that they would not agree t0 stipulate to the use of the pseudonym “J Doe” in this case and that they reserved “all rights to oppose any such designation.” (Tenhoff Declaration at 1] 3, Exhibit B.) They also indicated that there was no need to include information regarding Plaintiff’s diagnosis or other medical details into the complaint. (Id.) However, Defendants indicated that they would be willing t0 consider an appropriate protective order after review 0f a file-endorsed Complaint, since the Complaint had not yet been filed. (TenhoffDeclaration at fl 4.) Critically, in this sole email exchange 0n the subject, Defendants’ counsel made n0 threat t0 disclose Plaintiffs identity either in any courtfilings 0r -2- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in any other context. (See Tenhoff Declaration at 1] 3, Exhibit B.) On November 23, 2020, Plaintiff, a former Roku employee, filed a complaint against Defendants With this Court alleging employment-related causes of action, including disability discrimination, failure t0 engage in the interactive process, failure to provide reasonable accommodations, retaliation, wrongful termination, infliction of emotional distress, and negligent infliction of emotional distress (the “C0mp1aint”). Plaintiff has not yet served the Complaint 0n Defendants, and as such, Defendants have not yet appeared in this matter. (Tenhoff Declaration at 'H 7-) On November 25, 2020, Defendants’ counsel notified Plaintiff” s counsel Via email that they were authorized t0 accept service 0n behalf 0fDefendant Roku Via a Notice and Acknowledgment. And 0n December 9, 2020, Defendants’ counsel notified Plaintiffs counsel Via e-mail that they were authorized to accept service 0n behalf of individual defendant Mr. Lin Via a Notice and Acknowledgment. Yet, Plaintiff has not responded to either email 0r served the Complaint. (Tenhoff Declaration at 1N 5-6, Exhibits C and D.) On December 7, 2020, Plaintiff filed an Application seeking a preliminary injunction “restraining and enjoining Defendants” from engaging in the following conduct for the remainder of the litigation: (1) identifying Plaintiff’s true name or referring to Plaintiff by any name other than “J Doe” in these Court proceedings and/or in any document filed With the court, unless filed under seal; and (2) making any statements t0 the media, 0r any person other than Defendants, Defendants’ directors, Defendants’ officers, Defendants’ counsel, Plaintiff, or Plaintiffs Counsel that identifies Plaintiff as the individual bringing this lawsuit unless such disclosure is necessary t0 litigate the action, and then only ifsuch individual agrees in writing t0 be bound by the same order. (See Memorandum 0f Points and Authorities in Support 0f Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction (“MPA ISO Application”) at 2: 1 8-25.) (emphasis added.) The Application was scheduled t0 be heard 0n December 10, 2020 in Department 6. Prior to filing this first Application, Plaintiff’ s counsel did not contact Defendants’ counsel t0 request a stipulation t0 any such relief, nor t0 even discuss these subj ects. (Tenhoff Declaration -3- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at 1] 8). Moreover, Plaintiff’s counsel did not provide Defendants With any notice whatsoever of the Application, even though Plaintiff s counsel knew the identities ofthe attorneys for Defendants, and knew as of December 9 that Defendants’ counsel was authorized t0 accept service on both Defendants’ behalf. (Tenhoff Declaration at 11 9.) This failure to provide notice violated California Rules 0f Court 5.165 and this Court’s Local Rule 8(f) requiring notice be given t0 all parties 0r their attorneys no later than 10:00 am on the court day before the matter is to be considered by the Court. And Plaintiff did not have good cause t0 waive notice under California Rules of Court 5.165(b)(2). Because Plaintiff failed to provide Defendants with notice, on December 9, 2020, this Court denied Plaintiff s Application. Pursuant t0 this Court’s Order, Plaintiff eventually provided notice of their Application and supporting documents seven days later 0n the afternoon of December 16, 2020, for a hearing noticed for December 18, 2020, at 8:15 am. At n0 time between December 9 and December 16 did Plaintiff” s counsel serve their Application and supporting documentation. (Tenhoff Declaration at 1] 10.) Nor did they make any attempt to contact Defendants’ counsel t0 discuss these issues, other than providing verbal notice 0f their ex parte application, for the very first time, on December 16. (Id.) Defendants now oppose Plaintiff” s request for injunction. // // // // // // // // // // // -4- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. PLAINTIFF CANNOT MEET PLAINTIFF’S BURDEN T0 OBTAIN A TEMPORARY RESTRAINING ORDER. To obtain preliminary injunctive relief (either as a temporary restraining order 0r a preliminary injunction), Plaintiff must show a likelihood 0f success on the merits and that the interim harm that Plaintiff would suffer if the injunction were denied far outweighs the harm that the Defendants would suffer if the injunction were issued. IT Corp. v. County oflmperial, 35 Cal. 3d 63, 72 (1983). Plaintiff cannot meet either of those requirements here as t0 either form of relief Plaintiff seeks With Plaintiff” s Application. A. Plaintifg Has Not Shown a Likelihood 0f Success 0n the Two Forms 0f Relief Sought 1. Plaintiffs Request for an Order Restraining Defendants From Making Any Statement t0 the Media and Anyone Person Other Than Defendants’ Directors, Officers, Counsel, Plaintiff and Plaintiff’s Counsel) That Identifies Plaintiff As The Plaintiff In This Case Constitutes an Impermissible Prior Restraint on Speech. Plaintiff cannot prevail in restraining Defendants from making any statements that may identify Plaintiff as the Plaintiff in this case t0 the media or anyone else in the world (except for Roku directors, officers, Defendants’ counsel, Plaintiff, or Plaintiff s counsel)? On its face, this is an unconstitutional prior restraint on speech. See Cal. Const. Art. 1, § 2 (“Every person may freely speak, write and publish his 0r her sentiments on all subjects, being responsible for the abuse 0f 1 In the MPA ISO Application, Plaintiff appears t0 argue that there is a likelihood 0f success on the merits of Plaintiff s discrimination claim. (See MPA ISO Application, at 4: 1 8-25.) However, the analysis should focus on the likelihood 0f success 0n the merits 0f the relief that is sought here - restraining Defendants from making statements about Plaintiff filing the lawsuit t0 the media and other individuals and proceeding under the “J Doe” pseudonym - given that the injunctive relief is sought on those issues, and is unrelated to the overall merits 0f Plaintiff’s discrimination claim. Plaintiff did not address the likelihood of success on those issues. But even ifthe analysis is focused on the merits 0f Plaintiff s discrimination claim, Plaintiff did not show a likelihood 0f success 0n that claim given that other than a few generalized blanket statements, Plaintiff has presented no evidence 0r argument whatsoever t0 show that Plaintiff will prevail in this litigation. 2 While Plaintiff’s proposed injunction apparently would allow such statements to be made “if necessary to litigate the action” and if the recipient agrees in advance to comply with a court injunction order, these limitations are essentially meaningless. As discussed in more detail below, Defendants would risk contempt if they could not justify that the disclosure was “necessary t0 litigate the action” and could not make any statements at all if the intended recipient 0f the disclosure did not agree t0 a court injunction that puts themselves at risk of contempt. -5- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this right. A law may not restrain or abridge liberty of speech 0r press.”) Prior restraints of speech are disfavored andpresumptively invalid. See Gilbert v. National Enquirer, Ina, 43 Cal. App. 4th 1135, 1144 (1996). Courts can only impinge upon this constitutional right in “exceptional circumstances” and only upon noticed motion by a party establishing, with evidence, “direct, immediate, and irreparable harm.” See Parris v. Superior Court, 109 Cal. App. 4th 285, 299 (2003). Such exceptional circumstances that have been recognized include disclosure of military secrets in times of war, t0 prevent the use 0f words that would result in force, 0r to prevent deceptive commercial practices. See Gilbert, 43 Cal. App. 4th at 1145. Similarly, a gag order on trial participants is unconstitutional unless: (1) the speech sought t0 be restrained poses a clear and present danger 0r serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored t0 protect the interest; and (3) n0 less restrictive alternatives are available. Hurvitz v. Hoefilin, 84 Cal. App. 4th 1232, 1241 (2000). Here, Plaintiffhas not even come close t0 meeting this very high burden for infringing upon Defendants’ constitutional rights through a prior restraint injunction. Not only has Plaintiff failed t0 show that exceptional circumstances like ones that courts have recognized exist, but Plaintiffhas not shown any evidence whatsoever 0f irreparable harm. The only interest and harm that Plaintiff has set forth is the potential 0f a loss 0f reputation and respect in the scientific community, as well as a purported Violation of Plaintiff’s privacy.3 That does not rise t0 the level 0f a compelling interest that courts have previously recognized as a foundation for infringing upon a party’s constitutional right 0f free speech. Indeed, if reputation and respect was a compelling interest to justify the curb 0n constitutionally-protected free speech, then Defendants could also similarly ask that Mr. Lin remain anonymous in this lawsuit or that Plaintiff be prohibited from speaking about Mr. Lin given that being named as an individual defendant in a complaint alleging discrimination (0r any lawsuit), is damaging t0 his reputation. T0 our knowledge, n0 California court has ever imposed a prior restraint injunction as t0 3 It bears noting that Plaintiff has waived any privacy right in Plaintiff’s identity by choosing to bring a public lawsuit. -6- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the identity 0ftheplaintifl“in a disability discrimination case, and Plaintiffhas not identified any case law whatsoever supporting such a drastic remedy. On the other hand, courts have denied injunctions restricting similar speech. For instance, in Hurvitz v. Hoejflin, the court denied issuance of a protective order that would among other things, seal declarations that disclosed the names of patients of the defendant doctor, prevent disclosure of the names ofpatients in connection with allegations that the defendant had “ridiculed the genitals 0f unconscious patients,” and required the parties to develop a neutral patient identification system (e.g., patient number 1, patient number 2, etc.).” Hurvitz, 84 Cal. App. 4th at 1236. In Hurvitz, the Court held that, While the allegations about what the doctor did to the patients are “vulgar and crude” and that the patients, if identified, “would suffer embarrassment,” the court nonetheless found that such order constituted an unconstitutional prior restraint of speech. Id. at 1244. And in particular, the court held that the patients’ right t0 “privacy and dignity” did not justify the prior restraint. Id. (“sparing citizens from embarrassment, shame, 0r even intrusions into their privacy has never been held t0 outweigh the guarantees of free speech in our federal and state constitutions”). Not only is the protection of privacy not a compelling interest t0 justify a prior restraint, courts have also previously held that an order prohibiting discussion of a lawsuit is an invalid prior restraint. For instance, in Maggi v. Superior Court, the court held that a restraining order that prohibited counsel “from discussing this lawsuit. . .With any third parties Who are current 0r former investors in any partnership in which [real parties] or were general partners without first applying for and receiving the Court’s permission,” was an invalid prior restraint that did not serve any compelling interest. 119 Cal. App. 4th 1218, 1226 (2004); see also San Francisco Unified School Dist. ex. Rel. Contreras v. First Student, Ina, 213 Cal. App. 4th 1212, 1238 (2013) (an order barring individual plaintiffs from discussing lawsuit With current employees “implicates individual plaintiffs” First Amendment rights”). Finally, even if maintaining Plaintiff‘s privacy was a compelling interest, there are less restrictive means in protecting that interest. For instance, the parties can enter into protective order protecting certain types 0f sensitive medical information from disclosure even if Plaintiff was -7- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 identified by name in this case. Defendants have previously proposed this as an alternative but Plaintiff did not even engage in any discussion with Defendants about this option before filing this instant Application. (Tenhoff Declaration at 1] 4.) In sum, Plaintiff has not met Plaintiff’s high burden 0f showing that any exceptional circumstances exist here t0 justify this unconstitutional prior restraint. 2. PlaintiffHas Not Met the Requirements Justifying the Use 0f a Fictitious Name In This Lawsuit. The public has an interest t0 access court records, Which are presumed t0 be open. Cal. Rules 0f Court § 2.550(c). And “use of fictitious names runs afoul 0f the public’s common law right of access to judicial proceedings.” Does I thru XXIII v. Advanced Textile Corp, 214 F.3d 1058, 1067 (9th Cir. 2000); see also Doe v. Blue Cross & Blue Shield United 0f Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997) (“Identifying the parties t0 the proceeding is an important dimension 0f publicness. The people have a right t0 know who is using their courts.”) Accordingly, given the interests above, a party may only “preserve his 0r her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.” Doe v. Lincoln Unified School Dist, 188 Cal. App. 4th 758, 767 (2010). These exceptional circumstances may include matters ofhighly sensitive and personal nature, real danger ofphysical 0r mental harm t0 plaintiff, 0r where the injury sought t0 be avoided by the complaint, would be incurred by disclosure of plaintiffs identity. Id. And Plaintiff bears the burden of showing that such circumstances exist, which Plaintiff has not met here. See Advanced Textile Corp, 214 F.3d at 1069 (9th Cir. 2000). None 0f the exceptional circumstances are present here. Federal courts have denied plaintiffs use 0f a fictitious name in discrimination cases where a party’s medical condition was alleged in the complaint. See Doe v. Frank, 95 1 F.2d 320, 324 (1 1th Cir. 1992) (Plaintiff alleging Title VII discrimination based on alcoholism; court found “n0 abuse 0f discretion in the district court's implicit conclusion that the stigma involved in Doe’s disclosure [0f his alcoholism] does not rise to the level necessary to overcome the presumption of openness in judicial proceedings 0r -8- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the explicit requirements 0f Rule 10(a).”); Doe v. Indiana Black Expo, 923 F.Supp. 137, 140-42 (S.D. Ind. 1996) (plaintiffhad a history 0f substance abuse and mental health hospitalization; court did not allow plaintiffto proceed anonymously in employment discrimination suit in which plaintiff alleged he was fired for taking time off to receive mental health treatment); Blue Cross & Blue Shield 0f Wisconsin, 112 F.3d at 872 (holding that disclosure 0f plaintiffs obsessive-compulsive disorder did not warrant use 0f fictitious name). Plaintiffhas not alleged that Plaintiffwould suffer any physical 0r mental harm if Plaintiff’ s identity was disclosed. At most, Plaintiff has only argued that Plaintiff would suffer speculative reputational harm, which does not rise to the level of physical 0r mental harm. Additionally, there are n0 reported disability discrimination cases in California that have allowed a “Doe” designation, When the plaintiff has voluntarily put his 0r her own medical condition at issue. Indeed, Plaintiff has cited no California cases t0 support the use of the fictitious name here. Moreover, the “Doe” pseudonym seems unnecessary here When Plaintiff can proceed With Plaintiff” s disability discrimination case without putting the details 0f Plaintiff” s medical condition in the Complaint. Additionally, the parties can also enter into a protective order concerning any sensitive medical information, Which Defendants already proposed to Plaintiff. (Tenhoff Declaration at fl 4.) Courts also consider potential prejudice t0 opposing party when deciding upon whether t0 allow a plaintiff t0 proceed under a pseudonym. Advanced Textile Corp, 214 F.3d at 1067. Defendants will be prejudiced here. Defendant’s ability t0 conduct discovery would be limited, as further explained in Section III.B.2 below. For example, if Defendants were t0 subpoena third parties With regard t0 this lawsuit, such as medical providers Who likely have highly relevant information in this case, Defendant would have to disclose or otherwise confirm Plaintiff” s identity with respect t0 such third-parties. And while Plaintiff and Plaintiff s counsel are free t0 make any public statements they may Wish about this case, Defendants would be unable to respond if this injunction were t0 issue. // // -9- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiff Has Not Shown That Plaintiff Will Suffer Immediate Irreparable Harm As A Result 0f Any Speculative Future Conduct By Defendants. A party must d0 more than speculate about the possibility of irreparable harm; it must present evidence that such harm is imminent. Korean Philadelphia Presbyterian Church v. California Presbytery, 77 Cal. App. 4th 1069, 1084 (2000) (“An injunction cannot issue in a vacuum based 0n theproponents ’fears about something that may happen in thefuture. It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends t0 engage in the prohibited activity.”) (emphasis added). Plaintiff cannot show either that: (1) Defendants were prepared to engage in any 0f the conduct that the Application seeks to protect; or (2) that by denying the relief, Plaintiff would suffer immediate and irreparable harm. First, there is n0 threat 0f immediate harm since Defendants never threatened t0 make any public statements about Plaintiff. In Plaintiff” s Application, Plaintiff argues that Roku “threatened” to “publicly expose Plaintiff’s identity” or out Plaintiff. (MPA ISO Application, at 328-9.) That statement is false. In the email Defendants’ counsel sent t0 Plaintiff’s counsel 0n November 16, 2020, attorneys for Defendants only stated that they intended t0 challenge Plaintiff’ s right t0 proceed as a “Doe” plaintiff, Which Defendants have the lawful right t0 d0. (Tenhoff Declaration at fl 3, Exhibit B.) Moreover, Defendants also stated that they would agree to enter into a protective order t0 protect any confidential medical information. (Tenhoff Declaration atW 3-4, Exhibit B.) There is n0 mention whatsoever in this email 0r anywhere else thatDefendants intended t0 makepublic statements about Plaintist identity, Plaintifl’s medical condition, 0r anything else about Plaintiff (See id.) Second, there is also n0 evidence that Plaintiff would suffer irreparable harm. In support of Plaintiff” s Application, Plaintiff alleges that Plaintiff would suffer “immediate irreparable harm in that Plaintiff is a respected professional in the computer science industry” and that “divulgence 0f Plaintiff’s mental disability and confidential medical record would cause harm t0 Plaintiff’s reputation and respect in the scientific community.” (MPA ISO Application, at 425-9.) But such statement in the MPA ISO Application is not evidence showing imminent or irreparable harm. -10- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rather, it is a blanket statement based on Plaintiff’s speculative belief that Plaintiff would suffer harm sometime in the future, which is insufficient. “Speculative injury does not constitute irreparable injury.” Goldie ’S Bookstore, Inc. v. Superior Court ofState 0fCal., 738 F.2d 466, 472 (9th Cir. 1984). Further, any speculative injury t0 Plaintiff s reputation is mitigated by Defendant’s Willingness to discuss a protective order With respect to Plaintiffs confidential medical information. Indeed, Plaintiff has not presented any evidence whatsoever showing that any such disclosure 0f Plaintiff s name would result in lost job opportunities, any evidence that Plaintiff has any pending job offers that are threatened by the disclosure 0f Plaintiff’s name, 0r any evidence that disclosure 0f Plaintiff’ s medical condition would, in fact, lead t0 a loss of reputation. Nor has Plaintiff provided any legal authority showing that a generalized statement 0fharm is sufficient t0 support preliminary injunctive relief. Again, Plaintiff must provide evidence that it is likely that Plaintiff will suffer irreparable injury, even if Plaintiff demonstrates a strong likelihood of prevailing 0n the merits, a burden that Plaintiff also has not carried. See Winter v. Natural Resources Defense Council, 555 U.S. 7, 22 (2008). C. The Balance of Harms Weighs Against Granting the Application. While Plaintiff’s alleged harm is speculative at best, in contrast, Defendants would suffer irreparable harm if the Application is granted. If either of the two forms ofrelief sought by Plaintiff is granted, Defendants would be prejudiced in their ability to defend themselves since, initially at least, such a prohibition will inhibit Defendant’s ability t0 conduct factual discovery and third-party discovery. Specifically, if either relief sought by Plaintiff is granted, Defendants would be prohibited from engaging in any of the following: 0 Defendants would not be able t0 conduct any third-party discovery - Roku anticipates that it Will issue third-party subpoenas for documents and perhaps testimony t0 medical providers since Plaintiff has put Plaintiff” s medical condition directly at issue, and it would need to disclose Plaintiff’s name in order to conduct such discovery. 0 Using Plaintiff’s name in depositions with any individuals other than Defendants ’ directors and officers - Defendants may need t0 take depositions 0f third parties, experts, and even perhaps Roku employees (Who would not be Roku directors and -11- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 officers), and it cannot adequately conduct any depositions without identifying Plaintiff in connection With the case. 0 Gathering documents in response t0 document requests 0r information in response t0 interrogatories - Defendants’ efforts to gather documents in response t0 document requests 0r information in response t0 interrogatories would be limited. Defendants would need t0 seek information and documents from Roku employees (other than Roku officers and directors), and if it is prevented from using Plaintiff” s name, then they would not be able t0 gather any responsive documents 0r information. 0 Gathering relevant information from Roku employees who are non-officers and directors - It is likely that Roku employees Who are not officers and directors have relevant information here. Under Plaintiff s requested relief, no one at Roku would be able t0 speak t0 anyone else at Roku (except for officers and directors) about Plaintiff, and thus, there is n0 way t0 gather any needed information t0 defend against the lawsuit. Accordingly, Defendants’ discovery and factual investigation efforts Will be heavily impeded if either 0f the forms 0f relief are granted. On the other hand, Plaintiff does not have any similar limitations as to what Plaintiff can 0r cannot say 0r d0; therefore, Plaintiffwould be able t0 conduct any discovery and factual investigation that Plaintiff wants. Because Plaintiff can freely conduct discovery whereas Defendants would not be able t0 under Plaintiff’s requested relief, therefore, Defendants would be detrimentally banned in this litigation. Plaintiff s proposal that Plaintiff’ s identity be disclosed t0 others if necessary to litigate the action, and only ifthe individual agrees to be bound in writing by the order of this Court resulting from the Application, is unworkable. As noted above, Whether a disclosure of Plaintiff’s identity is “necessary t0 litigate the action” puts Defendants at risk of contempt 0f a court order simply if Plaintiff disagrees that the disclosure is “necessary.” And third parties can simply refuse to sign up to a court order and refuse t0 participate altogether with Defendants’ efforts t0 defend the case. Moreover, participants would not be able t0 make any statements about this matter at the risk of being found in contempt 0f court. In fact, courts have rejected any such requirement that parties, Witnesses, deposition officers, be required t0 comply With an order limiting speech, in order to give testimony or be interviewed, because doing so would have a “chilling effect” 0n the litigant’s ability to properly prepare for trial. Hurvitz, 84 Cal. App. at 1245 (rejecting an order requiring all witnesses and -12- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deposition officers t0 comply With an order limiting disclosure, because in essence, Witnesses must agree to “voluntarily have his or her right of free speech curtailed 0n penalty of contempt 0f court” before he or she may be interviewed 0r deposed). Requiring any individuals (other than the parties and Roku officers and directors) t0 comply With a court order 0n what they cannot say With respect t0 this matter, would similarly have a “chilling effect” here. Specifically, Defendants cannot compel individuals, including potential Witnesses, experts, healthcare providers, here to abide by any court order curtailing speech. Therefore, if any individual refuses to abide by an order resulting from the Application, then that would mean that Defendants would not be able t0 conduct any discovery whatsoeverfrom that person. Moreover, requiring other individuals t0 agree to an order prohibiting them from making certain statements about this case amounts to a gag order, and an unconstitutional prior restraint on other individuals” speech. Additionally, requiring individuals to agree t0 a “gag order” before they can engage in discovery puts an additional hurdle that Defendants should not, and cannot, be subjected t0 and contravenes Defendants’ right t0 full discovery under the California Discovery Act. Defendants would also be prejudiced and be unable to defend themselves in the media or in public, if Plaintiff, Plaintiff’s counsel, or anyone else attacks them in the media in relation to this litigation, Which further constitutes a prior restraint on speech. Accordingly, on balance, Defendants would be severely harmed if either one of the relief sought by Plaintiffs under the Application is granted. Therefore, the balance 0f harm weighs against granting the Application. IV. CONCLUSION. Because Plaintiff cannot show a likelihood 0fprevailing 0n any 0f the relief sought, nor can Plaintiff show that Plaintiffwould suffer irreparable harm, Defendants respectfully request that this Court deny Plaintiff s Application in its entirety, With prejudice to bringing a motion for preliminary injunction seeking this relief. However, in the alternative, given the shortened timing t0 brief these issues since Plaintiff chose t0 raise them in connection With ex part6 injunctive reliefupon minimal notice, Defendants -13- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 respectfully request that the Court: (1) Set a regular briefing and hearing schedule for a motion on Plaintiff’s ability to pursue this case as a “Doe” plaintiff. In connection With this motion schedule, Defendants will stipulate that prior t0 this motion being heard and decided, Defendants Will not file anything in this Court that identifies Plaintiffby name (unless under seal); and (2) Order the parties t0 negotiate in good faith for the purposes of entering into a stipulated protective order that governs the use confidential information in connection With the litigation. This protective order would provide that Plaintiff’s identity would be considered confidential information under the order until the motion regarding Plaintiffs Doe status is heard and decided. Any disputes over the terms 0f this stipulated protective order that cannot be resolved by the parties shall be handled by a regularly-scheduled motion. Dated: December 17, 2020 COOLEY LLP Greg ’reAW By: Gregory C. Tenhoff(154553) Helen Luu (300759) Joshua E. Elefant (3 12913) Attorneys for Defendants Roku, Inc. and Long-Ji Lin -14- DEFENDANTS’ OPPOSITION T0 APPLICATION FOR TRO, CASE N0. 20CV373940 1 PROOF OF SERVICE 2 I am a citizen of the United States and a resident of the State 0f California. I am employed 3 in Santa Clara County, State of California, in the office 0f a member of the bar of this Court, at 4 Whose direction the service was made. I am over the age 0f 18 years and not a party t0 this action. 5 My business address is Cooley LLP, 3175 Hanover Street, Palo Alto, California 94304-1 130. My 6 e-mail address is lodell@cooley.com. On December 17, 2020, I served the following documents 7 0n the parties listed below in the manner(s) indicated: 8 1. DEFENDANTS’ OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE 9 RE PRELIMINARY INJUNCTION; 10 2. DECLARATION OF GREGORY C. TENHOFF IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION 11 FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW 12 CAUSE RE PRELIMINARY INJUNCTION; 3. [PROPOSED] ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION 13 FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE 14 RE PRELIMINARY INJUNCTION D (BY U.S. MAIL - CCP § 1013a(1)) I am familiar With the business practice 15 0f Cooley LLP for collection and processing 0f correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it 16 is deposited in the ordinary course of business With the United States Postal 1 7 Service, in a sealed envelope with postage fully prepaid. 18 D (BY MESSENGER SERVICE - CCP § 101 1) I consigned the document(s) to an authorized courier and/or process server for hand delivery 0n this date. 19 D (BY FACSIMILE - CCP § 1013(6)) I am personally and readily familiar With 20 the business practice 0f Cooley LLP for collection and processing 0f document(s) t0 be transmitted by facsimile and I caused such document(s) on 21 this date to be transmitted by facsimile t0 the offices 0f addressee(s) at the numbers listed below. 22 23 D (BY OVERNIGHT MAIL - CCP § 10131) I am personally and readily familiar With the business practice of Cooley LLP for collection and 24 processing 0f correspondence for overnight delivery, and I caused such document(s) described herein t0 be deposited for delivery t0 a facility 25 regularly maintained by Federal Express for overnight delivery. 26 /// 27 /// 28 /// COOLEYLLP 1. ATTORNEYS AT LAW moAm PROOF 0F SERVICE, CASE N0. 20CV373940 239843342 v1 E (BY ELECTRONIC MAIL - CCP § 1010.6(a)(4)(A)) Based 0n a court order 2 or an agreement of the parties to accept service by e-mail or electronic transmission, I caused such documents described herein to be sent to the 3 persons at the e-mail addresses listed below. I did not receive, Within a reasonable time after the transmission, any electronic message 0r other 4 indication that the transmission was unsuccessful. 5 Howard L. Magee Robert Starr 6 Larry W. Lee Theodore Tang Max Gavron Manny Starr 7 Diversity Law Group Frontier Law Center 515 South Figueroa St., Suite 1250 23901 Calabasas Rd., Suite 2074 8 Los Angeles, CA 90071 Calabasas, CA 91302 9 Phone: (213) 488-6555 Phone: (818) 914-3433 Fax: (213) 488-6554 Fax: (818) 914-3433 10 Email: hmagee@diversitvlaw.com Email: robert@starrlaw.com; lwlee@diversitvlaw.com theodore@frontierlawcenter.com 1 1 mgavron@diversitvlaw.com mannv@frontierlawcenter.com 12 Attorneys for Plaintiffs Attorneys for Plaintiffs 13 I declare under penalty ofperjury under the laws 0f the State 0f California that the above is 14 true and correct. 15 Executed on December 17, 2020, at Palo Alto, California. 16 17 ( 714' 5/6" 18 Lori L. O’Dell 19 20 21 22 23 24 25 26 27 28 COOLEY LLP 2 . ATTORNEYS AT LAW momo PROOF 0F SERVICE, CASE N0. 20CV373940 239843342 v1
