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Case No. 2:17-cv-04062-SVW-SS
DEFENDANTS’ OPPOSITION TO PLAINTIFF ‘S EX PARTE APPLICATION ON ITS MOTION TO
NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS
QUINN EMANUEL URQUHART & SULLIVAN, LLP
David M. Grable (Bar No. 237765)
davegrable@quinnemanuel.com
Samuel A. Jacobs (Bar No. 315265)
samjacobs@quinnemanuel.com
Jocelyn Ma (Bar No. 319878)
jocelynma@quinnemanuel.com
865 South Figueroa Street, 10th Floor
Los Angeles, California 90017-2543
Telephone: (213) 443-3000
Facsimile: (213) 443-3100
Attorneys for Defendants StubHub, Inc. and eBay Inc.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
CALENDAR RESEARCH LLC, a
Delaware limited liability company,
Plaintiff,
v.
MICHAEL HUNTER GRAY, et al.,
Defendants.
CASE NO. 2:17-cv-04062-SVW-SS
DEFENDANTS STUBHUB, INC. AND
EBAY INC.’S OPPOSITION TO
PLAINTIFF CALENDAR
RESEARCH’S EX PARTE
APPLICATION TO SHORTEN TIME
ON ITS MOTION TO NARROWLY
REOPEN DISCOVERY OR IN THE
ALTERNATIVE FOR SANCTIONS
Hon. Stephen V. Wilson
Case 2:17-cv-04062-SVW-SS Document 235 Filed 01/23/19 Page 1 of 5 Page ID #:9245
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-1- Case No. 2:17-cv-04062-SVW-SS
DEFENDANTS’ OPPOSITION TO PLAINTIFF ‘S EX PARTE APPLICATION ON ITS MOTION TO
NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS
Defendants StubHub, Inc. (“StubHub”) and eBay Inc. (“eBay”) respectfully
submit this opposition to Plaintiff’s Ex Parte Application to Shorten Time
(“Application”) on Its Motion to Narrowly Reopen Discovery or in the Alternative
For Sanctions (“Motion”). The Application (and Motion) should be summarily
denied for multiple reasons.
First, Plaintiff has violated the Local Rules for the Central District of
California regarding notice and meet and confer, as to both the Application and the
Motion. As to the Application, Local Rule 7-19.1 states that “[i]t shall be the duty
of the attorney so applying (a) to make reasonable, good faith efforts orally to advise
counsel for all other parties, if known, of the date and substance of the proposed ex
parte application.” And Local Rule 37-1 states that “[p]rior to the filing of any
motion relating to discovery pursuant to F.R.Civ.P. 26-37, counsel for the parties
shall confer in a good faith effort to eliminate the necessity for hearing the motion or
to eliminate as many of the disputes as possible.”
Plaintiff did not attempt, in any fashion, to satisfy Local Rules 7-19.1 or 37.1
as to its Application and Motion in relation to StubHub and eBay. In fact, Plaintiff
directed its correspondence on these issues only to counsel for Defendants Hunter
Gray and Lasha Efremidze (Michael Baranov), and requested meet and confer only
with Mr. Baranov.1
StubHub and eBay were thus surprised to see in yesterday’s filings that
Plaintiff is asking the Court to grant relief that would directly and materially impact
1 Although Plaintiff copied counsel for StubHub and eBay on the emails to Mr.
Baranov, Plaintiff indicated in that correspondence that the relief it sought would be
additional discovery only from Messrs. Gray and Efremidze. Dkt. 233-4 at 5-6
(Jan. 20, 2019 C. McDonough Email). The emails say nothing about seeking an
extension of the briefing schedule on summary judgment motions, or adverse
inference rulings that could materially impact the substantive resolution of this
matter.
Case 2:17-cv-04062-SVW-SS Document 235 Filed 01/23/19 Page 2 of 5 Page ID #:9246
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-2- Case No. 2:17-cv-04062-SVW-SS
DEFENDANTS’ OPPOSITION TO PLAINTIFF ‘S EX PARTE APPLICATION ON ITS MOTION TO
NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS
StubHub and eBay. Plaintiff has asked the Court to issue an order either (1)
extending, by many weeks, Plaintiff’s time for responding to a summary judgment
motion that StubHub and eBay will be filing on February 1, 2019 (the date the Court
has ordered for summary judgment motions); or, in the alternative (2) making
adverse inference findings as to the existence of alleged conspiracies and statutory
violations by individuals with whom Plaintiff claims StubHub and eBay conspired.
Dkt. 232-12 (Plaintiff’s Proposed Order). Either form of relief would significantly
adversely impact StubHub and eBay, yet Plaintiff neither requested nor engaged in a
meet and confer with StubHub or eBay before filing these papers, nor did Plaintiff
even attempt to provide oral notice to StubHub and eBay of the ex parte application
and relief it would seek. Plaintiff’s Application and Motion should be summarily
denied on this basis alone.
Second, Plaintiff has failed to present to the Court with information directly
relevant to its Motion. Plaintiff’s Motion acknowledges that a key factor in
evaluating its request is “whether the moving party was diligent in obtaining
discovery within the guidelines established by the court,” Dkt. 232-1 at 14 (citing
Morning Star Packing Co. v. SK Foods, L.P., No. 2:09-cv-208-KJM-EFB, 2017 WL
117891, at *7 (E.D. Cal. Jan. 11, 2017). Plaintiff further tries to portray itself as
having been diligent in the discovery process. Id. at 13-15; Dkt. 232-2 ¶ 11.
Plaintiff does not mention, however, that Magistrate Judge Segal found the
opposite – namely that Plaintiff has demonstrated a “lack of diligence in pursuing
discovery.” See Dkt. 213. Magistrate Judge Segal discussed Plaintiff’s prior lack of
diligence as to moving to compel production of documents – the thing that Plaintiff
is now seeking to accomplish. Id. (“Until now, Plaintiff had not moved to compel
further production or otherwise sought the Court’s intervention on discovery since
the November 29 conference, and Plaintiff fails to explain why it did not do so.”).
Magistrate Judge Segal further observed as follows:
Case 2:17-cv-04062-SVW-SS Document 235 Filed 01/23/19 Page 3 of 5 Page ID #:9247
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-3- Case No. 2:17-cv-04062-SVW-SS
DEFENDANTS’ OPPOSITION TO PLAINTIFF ‘S EX PARTE APPLICATION ON ITS MOTION TO
NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS
There is no legitimate explanation for why Plaintiff failed to depose
the individual Defendants in October or November, if Plaintiff needed
greater details about its own trade secrets. In addition, Plaintiff fails to
explain why certain individuals associated with Plaintiff cannot
provide the detail requested by Defendants, nor does Plaintiff explain
why it failed to retain an expert in October or even earlier in this case.
Id.2
Magistrate Judge Segal also warned Plaintiff about the issues Plaintiff was
creating for itself due to lack of diligence as to bringing a motion:
[O]ne of the things I mentioned when we spoke earlier was that, you
know, you can't meet and confer endlessly. It has a limit on it, which
is a reasonableness limit. And in a context like this, where we have a
motion cutoff approaching and a situation where, I think I said to you,
you can't be sure that your District Judge is going to give you more
time, I guess I'm concerned that the responses were served in
November and I'm hearing about it, you know, December 19th. . . .
[Y]ou meet and confer. If you don't get the response you want in that
meet and confer, you have to initiate the Rule 37 process.
See 12/19/18 Hr’g Tr. 42:13-16, 43:1-3.
2 Plaintiff touts things it did before discovery closed to try to show diligence,
including deposing seven witnesses and submitting two expert reports. Dkt. 232-2 ¶
11. But Plaintiff fails to note that it waited until the last eight days of the discovery
period that closed on January 11 to take its first deposition, and jammed seven
depositions over a five-day period. And that Plaintiff refused to disclose its experts’
opinions until the final week of discovery, after eBay and StubHub sought an order
compelling production of the reports and just 36 hours before StubHub and eBay
were forced to depose Plaintiff’s liability expert on January 10. See Dkt. 223.
Case 2:17-cv-04062-SVW-SS Document 235 Filed 01/23/19 Page 4 of 5 Page ID #:9248
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-4- Case No. 2:17-cv-04062-SVW-SS
DEFENDANTS’ OPPOSITION TO PLAINTIFF ‘S EX PARTE APPLICATION ON ITS MOTION TO
NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS
Plaintiff should have presented this information to the Court when arguing
about its purported diligence in discovery, and this too is a basis for denying the
Application and Motion.
Finally, Plaintiff’s Application and Motion fail to cite to the Court’s prior
order that that summarily denied a similar ex parte application by Plaintiff seeking
an extension of the schedule, based on purported discovery obstruction. See Dkt.
232-1 at 4; Dkt. 200. The Application and Motion are yet another attempt by
Plaintiff to reset the Court’s schedule, after the Court has given Plaintiff ample
opportunity to explore these claims, by inter alia (1) permitting Plaintiff to analyze
over 7 million lines of StubHub code in 2017-18 (see Dkt. 160 at 6); (2) permitting
Plaintiff to take additional discovery on its DTSA claim after granting summary
judgment on that claim (Dkt. 160; Dkt. 175); and (3) permitting Plaintiff to amend
its complaint for the fifth time, in advance of the most recent round of discovery, to
adjust its CFAA claim (Dkt. 181).
Given the circumstances, StubHub and eBay respectfully submit that
Plaintiff’s Application and Motion should be summarily denied, and that the Court
should consider issuing sanctions against Plaintiff for abuse of the ex parte process.
See Judge Wilson’s Procedures for filing an ex parte application,¶ 5 (citing In Re:
Intermagnetics America, Inc., 101 Bankr. 191 (C.D. Cal. 1989) (“sanctions may be
imposed for misuse of ex parte applications”). In the event that the Court decides
to entertain Plaintiff’s underlying Motion, StubHub and eBay request additional
opportunity to address the substance of the Motion.
DATED: January 23, 2019 QUINN EMANUEL URQUHART &
SULLIVAN, LLP
By
David M. Grable
Attorneys for Defendants StubHub, Inc. and
eBay Inc.
Case 2:17-cv-04062-SVW-SS Document 235 Filed 01/23/19 Page 5 of 5 Page ID #:9249
