Calendar Research LLC v. StubHub, Inc. et al

MEMORANDUM in Opposition to EX PARTE APPLICATION to Continue Summary Judgment Deadline from April 1, 2019 287

C.D. Cal.March 25, 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 CONTINUE THE SUMMARY JUDGMENT DEADLINE 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 CONTINUE THE SUMMARY JUDGMENT DEADLINE Hon. Stephen V. Wilson Case 2:17-cv-04062-SVW-SS Document 291 Filed 03/25/19 Page 1 of 5 Page ID #:10910 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 CONTINUE THE SUMMARY JUDGMENT DEADLINE 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 Continue the Summary Judgment Deadline. The Application should be denied for multiple reasons. First, Plaintiff has indicated that it does not intend to file a motion for summary judgment, meaning that it need not do anything at the current April 1 filing deadline. The parties met and conferred regarding summary judgment motions on January 25, 2019 in accord with the prior summary judgment deadline, and each of the defendants presented the bases for their summary judgment motions to Plaintiff. Declaration of Jocelyn Ma (“Ma Decl.”) ¶ 5. Plaintiff did not represent it would move for summary judgment on any basis. Plaintiff thus has nothing to file on the impending April 1 summary judgment deadline. StubHub and eBay are prepared to file their summary judgment motions on that date. Second, Plaintiff has also abused the prior discovery extension that the Court granted by serving and seeking to enforce a third party subpoena, even though Plaintiff neither sought nor obtained authorization from the Court to conduct third party discovery in the discovery period. Ma Decl. Exs. A, B. Plaintiff’s request should be denied based on its misuse of the prior extension this Court granted. Third, Plaintiff’s hyperbolic accusation that StubHub and eBay have “used their attorneys to shield an illegal business strategy” is patently false. Despite asserting that the crime-fraud exception applies to the privileged documents it seeks, Plaintiff fails to even come close to making the requisite showing of crime or fraud. The documents Plaintiff seeks to compel are legitimate, privileged communications appropriately reflecting in-house counsel’s discussions with various people— including Hunter Gray, who was the functional equivalent of an employee at StubHub for purposes of the privilege analysis—to convey advice to her client regarding a litigious Plaintiff. Forced to face the reality that its claims ring hollow, Plaintiff is now engaging in a mudslinging campaign to further delay the filing of Case 2:17-cv-04062-SVW-SS Document 291 Filed 03/25/19 Page 2 of 5 Page ID #:10911 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 CONTINUE THE SUMMARY JUDGMENT DEADLINE motions that were originally due nearly two months ago. If further briefing is required, StubHub and eBay are prepared to respond more fully as to the lack of merits on Plaintiff’s motion. But in the first instance Plaintiff’s motion should not further delay summary judgment in this case. Fourth, Plaintiff has not been diligent on the issues at hand, contrary to its assertion that the factors necessitating its Application were “outside of its control.” Dkt. 287-1 at 1. 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)). Magistrate Judge Segal just ordered that Plaintiff is precluded from challenging StubHub and eBay’s privilege log entries because its challenge is untimely. Dkt. 289 at 2-3. Plaintiff also has not been diligent in obtaining the other requested relief it seeks in its Motion to Compel 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.”1 Dkt. 282-7. Plaintiff thereafter 1 StubHub and eBay also believe that 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. Plaintiff states in its Application and its Motion to Compel that it had reviewed a small number of the documents at issue before receiving StubHub and eBay’s clawback letter. E.g., Dkt. 287-1 at 3; 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. Dkt. 281-1 at 10:10-18. Plaintiff never informed StubHub and eBay of its discovery of these (footnote continued) Case 2:17-cv-04062-SVW-SS Document 291 Filed 03/25/19 Page 3 of 5 Page ID #:10912 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 CONTINUE THE SUMMARY JUDGMENT DEADLINE waited another 10 days to file its Motion to Compel. Plaintiff has not moved with due speed, and it should not be rewarded an indefinite continuance of the summary judgment deadline for its own dilatory response.2 Plaintiff has sought numerous continuances to avoid addressing its dearth of evidence and to delay impending summary judgment motions. StubHub and eBay respectfully request that the Court deny the Application’s requested relief, and permit this case to move forward to a conclusion. communications (nor Mr. Gray’s counsel, the producing party). Instead, as is clear from Plaintiff’s Motion to Compel, Plaintiff’s counsel reviewed these communications closely and in their entirety, only sequestering them once told to do so by StubHub and eBay. It is also clear that 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 present purposes submits this conduct warrants denial of the Application. 2 Plaintiff attempts to justify its delay in filing its Motion to Compel by asserting that it was somehow prevented from bringing the 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. Dkt. 281-1 at 7:4-7. 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 291 Filed 03/25/19 Page 4 of 5 Page ID #:10913 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 CONTINUE THE SUMMARY JUDGMENT DEADLINE DATED: March 25, 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 291 Filed 03/25/19 Page 5 of 5 Page ID #:10914