Calendar Research LLC v. StubHub, Inc. et al

MEMORANDUM in Opposition to EX PARTE APPLICATION to Shorten Time for Hearing

C.D. Cal.March 14, 2019

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 Case No. 2:17-cv-04062-SVW-SS STUBHUB AND EBAY’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME 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 LLC’S EX PARTE APPLICATION TO SHORTEN TIME ON MOTION TO COMPEL PRODUCTION OF PURPORTEDLY PRIVILEGED DOCUMENTS Hon. Suzanne H. Segal Case 2:17-cv-04062-SVW-SS Document 285 Filed 03/14/19 Page 1 of 6 Page ID #:10790 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 -1- Case No. 2:17-cv-04062-SVW-SS STUBHUB AND EBAY’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME Defendants StubHub, Inc. (“StubHub”) and eBay Inc. (“eBay”) respectfully submit this Opposition to Plaintiff Calendar Research LLC’s (“Plaintiff” or “Calendar”) Ex Parte Application (“Application”) to Shorten Time on Motion to Compel Production of Purportedly Privileged Documents (“Motion”). The Application should be denied for several reasons. First, Plaintiff represented to Judge Wilson that it needed an extension of the discovery deadline solely to pursue additional fact discovery from Defendants Hunter Gray and Lasha Efremidze,1 and received such an extension,2 yet is now trying to use that extension to pursue additional fact discovery from StubHub and eBay. Plaintiff neither sought nor obtained from Judge Wilson authorization to pursue such relief in this very limited discovery period. Second, Plaintiff seeks to shorten time on a Motion to challenge a category of documents on the very privilege log that Your Honor instructed Plaintiff it would not have the opportunity to challenge due to the impending close of discovery months ago. Declaration of Samuel A. Jacobs (“Jacobs Decl.”), Ex. A, December 19, 2018 Telephonic Hearing Tr. at 47:13-48:22 (The Court: “[I]t's hard for me to see how valuable a privilege log is going to be at this late in the game. . . . [T]he 1 Dkt. 232-1 (“[R]equest[ing] that the Court reopen discovery for the specific and limited purpose of compelling: (1) a corrected reproduction by Gray in compliance with Plaintiff’s instructions and established discovery practices; (2) the production of outstanding responsive documents from Gray’s personal Gmail address; (3) Efremidze’s production of responsive documents; and (4) the appearance of [Gray and Efremidze] for additional depositions so that they may be questioned on the contents of such documents.”). 2 Dkt. 249 (“The Court will reopen discovery for the limited purpose of allowing Plaintiff to seek any outstanding responsive and non-privileged documents from Defendants Gray and Efremidze. Plaintiff is permitted to conduct another deposition of Gray and Efremidze.”). The Court also noted that Plaintiff could use this extension to conduct depositions of StubHub and eBay’s experts, but fact discovery has been and remains closed as to StubHub and eBay since January 11, 2019. Id. Case 2:17-cv-04062-SVW-SS Document 285 Filed 03/14/19 Page 2 of 6 Page ID #:10791 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 -2- Case No. 2:17-cv-04062-SVW-SS STUBHUB AND EBAY’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME work required to challenge those designations of privilege is extremely time consuming and difficult . . . [I]f you are challenging some of those privilege assertions . . . [i]t's not going to be helpful to your client. Because I just don't think we'll be able to resolve that in time for you to use that information . . . ”). Plaintiff has chosen to disregard Your Honor’s guidance by now bringing a privilege log- challenge Motion on an ex parte basis, more than two months after receiving StubHub and eBay’s privilege log and the close of discovery as to StubHub and eBay. Third, Plaintiff has not been diligent on the issues at hand. In order to justify ex parte relief, Plaintiff must show that it “is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Kane v. Mycoskie, 2011 WL 13217265, at *1 (C.D. Cal. Sept. 23, 2011) (citing Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995)). StubHub and eBay served their privilege log on Plaintiff over two months ago. Jacobs Decl. Ex. B. While Plaintiff inquired into a specific category of withheld documents on StubHub and eBay’s privilege log three weeks after service, StubHub addressed Plaintiff’s inquiry the following day. Jacobs Decl. Ex. C.3 Plaintiff sent one additional email on the issue two days later, and has not said another word about it for over a month, until it informed StubHub and eBay that it intended to file its Motion. Plaintiff cannot in good faith claim now that it has been diligent in pursuing its privilege log challenge. Rather, its behavior is objectively 3 Plaintiff argues in its Motion that StubHub and eBay did not actually address its privilege log inquiry, but instead just responded that fact discovery was over as to them (which it was and is). This is not accurate. StubHub and eBay’s email response addressed Plaintiff’s two expressed concerns that various logged documents related to a “business purpose,” and that there were assertions of work product protection over documents created prior to litigation commencing. Jacobs Decl. Ex. C. Case 2:17-cv-04062-SVW-SS Document 285 Filed 03/14/19 Page 3 of 6 Page ID #:10792 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 -3- Case No. 2:17-cv-04062-SVW-SS STUBHUB AND EBAY’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME dilatory—it has decided to wait until five days before the close of its extended discovery period (which was just supposed to concern fact discovery as to Messrs. Gray and Efremidze) to file its Application and Motion, more than two months after it received the privilege log. Fourth, Plaintiff also has not been diligent in obtaining the other requested relief it seeks in its Motion regarding StubHub and eBay’s clawing back of privileged documents produced by Mr. Gray. StubHub and eBay served their clawback letter regarding their attorney-client privileged documents produced by Mr. Gray on March 1, 2019. Dkt. 282-2, ¶ 4; Dkt. 282-6. On March 3, Plaintiff responded by letter, confirming it would sequester the identified documents, and representing it “will challenge [StubHub and eBay’s] assertion of privilege with the court.” Dkt. 282-7. Plaintiff thereafter waited another 10 days to file its Application and Motion. Plaintiff has not moved with due speed, and it should not be rewarded for its own dilatory response.4 Fifth, Plaintiff’s counsel have breached their ethical obligations by reviewing, and failing to notify StubHub and eBay regarding, plainly attorney-client corporate privileged communications with StubHub and eBay’s in-house counsel produced by Mr. Gray. It is well established in California that an attorney “may not read a document any more closely than is necessary to ascertain that it is privileged. Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation.” Gotham City Online, LLC v. 4 Plaintiff attempts to justify its delay by asserting that it was somehow prevented from bringing this Application and Motion because it did not receive a log it requested after hours on March 5 from StubHub and eBay matching their clawed back documents to their privilege log until March 8. Plaintiff’s Motion makes zero reference to the logs StubHub and eBay produced on March 8, however, other than to claim – without further explanation – that the time it took to receive them delayed the Motion’s filing. Case 2:17-cv-04062-SVW-SS Document 285 Filed 03/14/19 Page 4 of 6 Page ID #:10793 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 -4- Case No. 2:17-cv-04062-SVW-SS STUBHUB AND EBAY’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME Art.com, Inc., 2014 WL 1025120, at *3 (N.D. Cal. Mar. 13, 2014) (citing Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001) (counsel “should refrain from examining the materials, notify the sending lawyer and abide the instructions of the lawyer who sent them”)); see also ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 368 (1992) (“A lawyer who receives materials that on their face appear to be subject to the attorney-client privilege or otherwise confidential, under circumstances where it is clear that they were not intended for the receiving lawyer, should refrain from examining the materials, notify the sending lawyer and abide the instructions of the lawyer who sent them.”). Plaintiff repeatedly states in its Motion that it “reviewed certain of the documents over which the Corporate Defendants now purport to assert privilege before they attempted to claw back those documents.” E.g., Dkt. 281-1 at 10:6-8. Plaintiff specifically acknowledges that it recognized certain of those communications were sent to and from in-house counsel. Id. at 10:10-18. Plaintiff never informed StubHub and eBay of its discovery of these communications (nor Mr. Gray’s counsel, the producing party), however, as is clear from Plaintiff’s Motion, and instead reviewed these communications closely and in their entirety, only sequestering them once told to do so by StubHub and eBay. Even more troubling is that Plaintiff’s Motion makes clear Plaintiff is referring to communications to and from eBay’s in-house counsel, Rebecca Ryon, Director of Americas Litigation. Plaintiff’s counsel has been fully aware of Ms. Ryon’s involvement in this case. Ms. Ryon has been present in-person or telephonically at numerous depositions taken by Plaintiff’s counsel in this matter. Some of the emails involving Ms. Ryon that StubHub and eBay clawed back state “(PRIVILEGED)” in the subject line. There simply is no excuse for Plaintiff’s counsel to have reviewed these documents without notifying counsel for StubHub and eBay of their presence in Mr. Gray’s production. StubHub and eBay will seek appropriate remedies against Plaintiff’s counsel at the appropriate time, but for Case 2:17-cv-04062-SVW-SS Document 285 Filed 03/14/19 Page 5 of 6 Page ID #:10794 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 -5- Case No. 2:17-cv-04062-SVW-SS STUBHUB AND EBAY’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME purposes of this Application submit that this conduct warrants denial of the request to shorten time. StubHub and eBay thus respectfully request that the Court deny the Application’s requested relief. If the Court finds that ex parte relief is warranted, and motion practice necessary as to Plaintiff’s underlying Motion, StubHub and eBay respectfully request that the Court set a reasonable briefing schedule that allows for StubHub and eBay to adequately defend their corporate attorney client privilege, and respond to Plaintiff’s utterly baseless and scurrilous assertion that the crime-fraud exception has any application here.5 5 In the event Your Honor finds Plaintiff’s requested relief regarding forgoing the local rules’ under seal filing procedures appropriate, and orders an opposition be filed in response to Plaintiff’s Motion, StubHub and eBay respectfully request that Your Honor rule that StubHub and eBay may also forgo the local rules’ under seal filing procedures for their opposition to Plaintiff’s Motion. DATED: March 14, 2019 Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN By David M. Grable Attorneys for Defendants StubHub, Inc. and eBay Inc. Case 2:17-cv-04062-SVW-SS Document 285 Filed 03/14/19 Page 6 of 6 Page ID #:10795