Feist v. RCN Corporation et al

RESPONSE

N.D. Cal.September 12, 2012

PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED BY MAGISTRATE JUDGE Misc. Case No. CV12-80135 SI (NC) 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 DANIEL J. BERGESON, Bar No. 105439 dbergeson@be-law.com MELINDA M. MORTON, Bar No. 209373 mmorton@be-law.com JAIDEEP VENKATESAN, Bar No. 211386 jvenkatesan@be-law.com BERGESON, LLP 303 Almaden Boulevard, Suite 500 San Jose, CA 95110-2712 Telephone: (408) 291-6200 Facsimile: (408) 297-6000 ANDREW GROSSO, Esq., pro hac vice Agrosso@acm.org ANDREW GROSSO & ASSOCIATES Georgetown Place 1101 Thirtieth St., NW, Suite 300 Washington, D.C. 20007 Telephone: (202) 298-6500 Facsimile: (202) 298-5599 Attorneys for Defendant-Counterclaim Plaintiff PAXFIRE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION BETSY FEIST, Plaintiff, vs. RCN CORPORATION and PAXFIRE, INC., Defendants. Misc. Case No. CV12-80135 SI (NC) Underlying action pending in the United States District Court for the Southern District of New York, Case No. 11 CV 5436 JGK Related cases: 3:12-cv-80119 SI (NC) 3:12-cv-80121 SI (NC) 3:12-cv-80140 SI (NC) OPPOSITION OF DEFENDANT PAXFIRE TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Date: October 19, 2012 Time: 9:00 a.m. Hon. Judge Susan Illston Courtroom 10, 19th Floor Case3:12-mc-80135-SI Document35 Filed09/12/12 Page1 of 30 - i - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. Case No. CV12-80135 SI (NC) 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 TABLE OF CONTENTS I. The Subpoenas at Issue: Procedural History and Standard of review ................................. 3 II. ARGUMENT ...................................................................................................................... 6 A. EFF Lacks Standing to Object to the Magistrate’s Decision Regarding the Applicability of the Work Product Doctrine. .......................................................... 6 B. The Correct General Standard of Review of the Magistrate Judge’s order is Whether It Is Clearly Erroneous and Contrary to Law, not de novo....................... 6 1. The Order concerns a discovery dispute, which is not a dispositive matter. .......................................................................................................... 7 2. The Standard of the Review Is Not Heightened by the Fact That the Order of the Magistrate Judge’s Does Not Address in Particulars Each and Every Argument Offered by EFF Made in Its Motion to Quash .......... 8 3. EFF’s Presentation of a First Amendment Claim Does Not Change the Standard of Review or the Procedures for Obtaining Review .............. 9 C. EFF Presents no Basis to Reverse the Order to Produce Documents ..................... 9 III. No Privilege or Constitutional Right Shields EFF from This Routine Discovery ............ 11 A. No General Privilege Exists for Advocacy Organizations or Researchers Such as Movants ............................................................................................................. 14 B. No General Privilege Exists for Investigations ..................................................... 15 C. Neither California Nor New York Press Privilege Law Applies to EFF Because EFF is Not “Press” .................................................................................. 16 D. Neither the Attorney Client Privilege Nor the Work-Product Doctrine Shield EFF ........................................................................................................................ 20 IV. The Need for Discovery Outweighs Any Speculative Need for Secrecy.......................... 21 V. CONCLUSION ................................................................................................................. 23 Case3:12-mc-80135-SI Document35 Filed09/12/12 Page2 of 30 - ii - PAXFIRE’S OPPSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. Case No. CV12-80135 SI (NC) 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 TABLE OF AUTHORITIES Page(s) FEDERAL CASES 800 Front Street Corp. v. Travelers Property Casualty Co. of America, No., CV 06-500(LDW)(ARL), 2006 U.S.Dist. LEXIS 84160 (E.D.N.Y. Nov. 20, 2006) ..... 20 Adolph Coors Co. v. Wallace, 570 F. Supp. 202 (1983) ............................................................................................................ 9 Agster v. Maricopa County, 422 F.3d 836 (9th Cir. 2005) .................................................................................................... 17 Anker v. G.D. Searle & Co., 126 F.R.D. 515 (M.D.N.C.1989) ............................................................................................ 15 Barkwell v. Sturm Ruger Co., Inc., 79 F.R.D. 444 (D. Alaska 1978) ............................................................................................. 22 Boyd v. City & County of San Francisco, No. C-04-545MM(JLS) 2006 U.S. Dist. LEXIS ..................................................................... 16 Burka v. U.S. HHS, 87 F.3d 508 (D.C. Cir 1996) ................................................................................................... 15 Channelmark Corp. v. Destinations Products Int’l, Inc., No. 99 C 214, 2000 U.S.Dist. LEXIS 9854 (N.D. Ill. July 7, 2000) ......................................... 8 Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011) .................................................................................................... 16 Deitchman v. E.R. Squibb & Sons, 740 F.2d 556 (7th Cir. 1984) .................................................................................................... 15 Dung Ngo v. Standard Tools & Equipment, Co., Inc., 197 F.R.D. 263 (D. Md. 2000) ................................................................................................ 22 Eagle Precision Technologies, Inc. v. Eaton Leonard Robolix, Inc., No. 03cv352- BEN(WMC) 2005, U.S. Dist. LEXIS 47173 (S.D.Ca. Aug. 11, 2005) ................................... 16 Fraley v. Facebook, Inc. 2012 U.S. Dist. LEXIS 116526 (NDCA 2012) ......................................................................... 2 Hall v. EarthLink Network, Inc., 396 F.3d 500 (2d Cir. 2005) ...................................................................................................... 1 Harasimowicz v. McAllister, 78 F.R.D. 319 (E.D. Pa. 1978) ................................................................................................ 23 Case3:12-mc-80135-SI Document35 Filed09/12/12 Page3 of 30 - iii - PAXFIRE’S OPPSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. Case No. CV12-80135 SI (NC) 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 Herbert v. Lando, 441 U.S. 153 (1977) .............................................................................................. 10, 11, 12, 14 Hickman v Taylor, 329 U.S. 495 (1947) ................................................................................................................ 20 Highfields Capital Management, L.P. v. Doe, 385 F. Supp 2d 969 (N.D. Cal 2005) ........................................................................................ 8 Hobley v. Burge, 433 F.3d 946 (7th Cir. 2006) ...................................................................................................... 6 In re American Tobacco Co., 880 F.2d 1520 (2d Cir. 1989) .................................................................................................. 15 In re Application of Consumers Union of U.S., 495 F. Supp. 582 (S.D.N.Y. 1980) .......................................................................................... 21 In re Google Buzz User Privacy Litigation 10-00672-JW (NDCA 2010) ..................................................................................................... 2 In re Rule 45 Subpoena Issued to Cablevision Sys. Corp., No. MISC 08–347(ARR)(MDG), 2010 U.S. Dist. LEXIS 40653 (E.D.N.Y. Feb. 5, 2010) .......................................................................................................................................... 7 In re Snyder, 115 F.R.D. 211 (D.Ariz.1987) ................................................................................................ 15 Keith v. Van Dorn Plastic Machinery Co., 86 F.R.D. 458 (E.D. Pa. 1980) ................................................................................................ 22 Kerr v. U.S. Dist. Ct. for N. D., 426 U.S. 394 (1976) .......................................................................................................... 13, 14 Lamar Advertising of South Dakota, Inc. v. Kay, 267 F.R.D. 568 (D.S.D. 2010) ................................................................................................ 20 Leviathan, Inc. v. M/S Alaska Maru, 86 F.R.D. 8 (W.D. Wash. 1979) .............................................................................................. 22 Miller v. Automobile, 420 F.3d 1098 (10th Cir. 2005) ................................................................................................. 8 NAACP v. Button, 371 U.S. 415 (1963) ................................................................................................................ 14 NLRB v. Cable Car Advertisers, Inc., 319 F. Supp. 2d 991 (N.D. CA 2004) ....................................................................................... 7 Case3:12-mc-80135-SI Document35 Filed09/12/12 Page4 of 30 - iv - PAXFIRE’S OPPSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. Case No. CV12-80135 SI (NC) 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 NLRB v. Frazier, 966 F.2d 812 (3rd Cir. 1992) ...................................................................................................... 7 Norfin, Inc. v. Intern. Business Machs. Corp., 74 F.R.D. 529 (D. Colo. 1977) ................................................................................................ 23 Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) .................................................................................................. 15 Quarantillo v. Consol. Rail Corp., 106 F.R.D. 435 (W.D. N.Y. 1985) .......................................................................................... 22 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ................................................................................................................ 14 Schoen v. Schoen, 48 F.3d 412 (9th Cir. 1995) ...................................................................................................... 19 Seattle Times Co. V. Rhinehart, 467 U.S. 20 (1984) .................................................................................................................. 13 Securities Exchange Commission v. Collins & Aikman Corp., 256 F.R.D. 403 (S.D.N.Y. 2009) ............................................................................................. 21 Shoen v. Shoen, 5 F.3d 1289 (1993) .................................................................................................................. 22 Stoffels v. SBC Communications, Inc., 263 F.R.D. 406 (W.D. Tex. 2009) ............................................................................................. 6 U.S. Postal Serv. v. Phelps Dodge Ref. Corp., 852 F. Supp. 156 (E.D.N.Y. 1994) .......................................................................................... 20 U.S v. Doe, 332 F. Supp. 938 (D. Mass. 1971) .......................................................................................... 15 U.S. v. Doe, 460 F.2d 328 (1st Cir. 1972) .................................................................................................... 15 United States v. IBM, 83 F.R.D. 92 (S.D.N.Y. 1979) ................................................................................................. 15 United States v. Nixon, 418 U.S. 683 (1974) ................................................................................................................ 17 United States v. Workman, 138 F.3d 1261 (8th Cir.1998) ................................................................................................. 11 Westmoreland v. CBS, Inc., 97 F.R.D. 703 (S.D..N.Y. 1983) .............................................................................................. 14 Case3:12-mc-80135-SI Document35 Filed09/12/12 Page5 of 30 - v - PAXFIRE’S OPPSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. Case No. CV12-80135 SI (NC) 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 Wilkinson v. FBI, 111 F.R.D. 432 (C.D. Cal. 1986) ............................................................................................ 14 William A. Gross Construction Associates, Inc. v. Am. Mfrs. Mut. Ins. Co., 262 F.R.D. 354 (S.D.N.Y. 2009) ....................................................................................... 20, 21 Williams v. Rene, 886 F. Supp. 1214 (D.V.I. 1995), rev'd on other grounds, 72 F.3d 1096 (3d Cir. 1995) ........ 22 Wm. T. Thompson Co. v. Gen. Nutrition Corp., 671 F.2d 100 (3d Cir.1982) ..................................................................................................... 17 Wright v. Fred Hutchinson Cancer Research Center, 206 F.R.D. 679 (W.D. Wash. 2002) ........................................................................................ 19 FEDERAL STATUTES 18 U.S.C. § 2510(4)-(5) .................................................................................................................. 1 28 U.S.C. § 636(b)(1) ...................................................................................................................... 9 Electronic Communications Privacy Act ........................................................................ 1, 2, 10, 16 FOIA .............................................................................................................................................. 15 OTHER STATUTES Cal. Evid. Code 1070(a) ................................................................................................................ 17 RULES Fed. R. Civ. Proc. 26(b)(3) ........................................................................................................ 4, 11 Fed. R. Civ. Proc. 26(b)(3)(A) ........................................................................................................ 6 Fed. R. Civ. Proc. 26(b)(4)(A) ...................................................................................................... 11 Fed. R. Civ. Proc. 26(b)(4)(B) ...................................................................................................... 11 Fed. R. Civ. Proc. 26(b)(4)(C) ...................................................................................................... 11 Fed. R. Civ. Proc. 26(b)(4)(D) ...................................................................................................... 20 Fed. R. Civ. Proc. 30(b)(6) ............................................................................................................ 10 Fed. R. Civ. Proc. 45 ..................................................................................................................... 11 Fed. R. Civ. Proc. 72(a) ................................................................................................... 1, 4, 7, 8, 9 Fed. R. Civ. Proc. 72(b) .......................................................................................................... 1, 5, 9 Case3:12-mc-80135-SI Document35 Filed09/12/12 Page6 of 30 - vi - PAXFIRE’S OPPSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. Case No. CV12-80135 SI (NC) 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 Fed. R. Evid. 501 ........................................................................................................................... 17 CONSTITUTIONAL PROVISIONS Cal. Const., Article I, § 2(b) .......................................................................................................... 17 California Constitution, Article I, § 2(a) ....................................................................................... 10 First Amendment .................................................................................................................... passim OTHER AUTHORITIES 1 McCormick on Evidence § 93 (John W. Strong, ed., 5th ed. 1999) .......................................................................................... 11 3 Weinstein’s Federal Evidence § 503.41 (Joseph M. McLaughlin, ed., 2nd ed. 1997) ........................................................................... 11 Case3:12-mc-80135-SI Document35 Filed09/12/12 Page7 of 30 - 1 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 Defendant Paxfire, Inc. ("Paxfire") hereby files its Opposition to the Motion of Non-Parties the Electronic Frontier Foundation and Peter Eckersley for De Novo Determination of Dispositive Matter Referred to Magistrate Judge. Movants have improperly brought their motion under Rule 72(b), as opposed to 72(a). For this reason, Paxfire is separately filing an administrative motion to strike EFF’s motion. BACKGROUND Paxfire has been sued in a putative class action by Betsy Feist, a resident of New York City, in the U.S. District Court for the Southern District of New York.1 As conceded by movant Mr. Peter Eckersley in his second declaration, filed in this Court,2 that case was directly instigated by Mr. Eckersley and by his employer and fellow movant the Electronic Frontier Foundation (collectively “EFF” or the “movants”) ― who solicited law firms in New York for this purpose; those firms thereafter solicited Ms. Feist to bring her class action suit.3 The lawsuit was filed, and widely publicized by EFF on its website and through other means, at a time when Paxfire was within days of receiving a buyout offer for its assets in an amount of ten million dollars or more.4 The lawsuit permanently derailed the buyout. By derailing the buyout and by unfairly tainting Paxfire with the public and with its Internet Service Provider (“ISP”) customers, the lawsuit and publicity have effectively destroyed the company. All of this occurred despite Ms. Feist’s suit being meritless: Paxfire simply did not do most of the things alleged in the lawsuit, and what it did do is lawful under statutory exceptions to the Electronic Communications Privacy Act (“ECPA”).5 While it has cast itself as an organization devoted to acting in the public interest, the underlying lawsuit serves a potential yet concrete financial and commercial motive. EFF is a potential recipient of a cy pres award from any recovery obtained by the class plaintiffs in the 1 Second Eckersley Decl., Dtk. No. 6, Case No. 12-mc-80135. His first declaration was filed in the action in the underlying class action in the Southern District of New York, and has been entered into the docket in the companion and consolidated case by Respondent Paxfire, Inc., Dtk. No. 19, Ex. 2, Case No. 12-mc-80122-SI. 2 Mr. Eckersley that he referred this case to the New York law firms representing Ms. Feist. Second Eckersley Decl. 3 Ms. Feist testified that attorney Kim Richman of one of those firms solicited her to bring this lawsuit. Feist Depo. at 9, 196-98, Dtk. No. 21, Ex. G, Case No. 12-mc-80135. 4 Bergman Decl., Dtk No. 21, Ex. D (No. 7), Case No. 12-mc-80135. 5 See 18 U.S.C. § 2510(4)-(5); Hall v. EarthLink Network, Inc., 396 F.3d 500 (2d Cir. 2005). Case3:12-mc-80135-SI Document35 Filed09/12/12 Page8 of 30 - 2 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 underlying case, as courts have the authority to award cy pres awards to EFF and similar organizations.6 Documents responsive to Paxfire’s subpoena will be relevant to showing whether there were any agreements between EFF and Ms. Feist’s law firms that, in exchange for damaging, albeit incomplete and inaccurate, information that the law firms would use to file their law suit against Paxfire, these same law firms would steer cy pres awards to EFF upon successful resolution of the class action against Paxfire and its codefendant RCN Corp. Such evidence will assist to demonstrate the baselessness of Ms. Feist’s allegations, as well as support Paxfire’s assertions in its counterclaims that the lawsuit is a sham and that Ms. Feist―through her attorneys― had a motive for acting with malice in making her defamatory claims against Paxfire. An examination of the two declarations submitted by Mr. Eckersley demonstrates that EFF instigated this lawsuit as a self-appointed Internet vigilante, so as to impose its own policies concerning “net neutrality,” by destroying a lawful business model which it disfavored. Such is demonstrated by the following: (1) although instigating the lawsuit, EFF published blogs to the public on its website that portrayed the lawsuit as having been brought independently by Ms. Feist and concealing its own participation instigating the lawsuit and its conflict of interest in the outcome of the lawsuit7; (2) EFF consulted with Paxfire’s commercial competitors about Paxfire’s business, although it never consulted with Paxfire to determine whether its allegations were or were not true8; and (3) EFF asserted that it and Ms. Feist used the Netalyzr, a software tool, to determine that Paxfire engaged in conduct as alleged in Ms. Feist’s Complaint―when it knew that the Netalyzr was not capable of making these determinations.9 Paxfire filed counterclaims against Ms. Feist, alleging inter alia that EFF, Peter Eckersley, and others are Feist’s (uncharged) coconspirators. To obtain discovery for its defense of Ms. Feist’s claims, particularly her claim brought under the ECPA (a federal statute), and to establish 6 Fraley v. Facebook, Inc. 2012 U.S. Dist. LEXIS 116526 (NDCA 2012); In re Google Buzz User Privacy Litigation, 10-00672-JW (NDCA 2010). 7 EFF Blog dated August 4, 2011, Dtk No. 21, Ex. B (No. 1C), Case No. 12-mc-80135. 8 Second Eckersley Decl. 9 Spafford Decl., Dtk No. 21, Ex. I, Case No. 12-mc-80135. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page9 of 30 - 3 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 its own counterclaims, it issued subpoenas to both EFF and Mr. Eckersley for documents and deposition testimony. A more detailed description of the factual background of Paxfire, and the events leading to Ms. Feist’s New York lawsuit against Paxfire and the subpoenas served upon EFF and Mr. Eckersley, are set out in Paxfire, Inc.’s Opposition to Non-Parties Electronic Freedom Foundation and Peter Eckersley’s Motion to Quash Subpoenas Issued by Paxfire, Inc. and Request for Protective Order.10 In support of its Opposition to EFF’s Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge, Paxfire submits the following: MEMORANDUM The Electronic Frontier Foundation (“EFF”) instigated this lawsuit and has expressly acknowledged doing so.11 Its actions were taken in concert with those of three other researchers as well as Ms. Feist and Ms. Feist’s lawyers and law firms, and made use of news media outlets such as the New Scientist.12 As alleged in Paxfire’s Counterclaims in the New York lawsuit, the allegations brought by Ms. Feist and EFF in the press and her lawsuit are false and defamatory; and the lawsuit is a sham brought for improper and malicious motives. I. The Subpoenas at Issue: Procedural History and Standard of review Paxfire issued subpoenas in the Northern District of California in connection with the New York lawsuit to EFF and Mr. Eckersley. These call for the production of all documents referencing (1) Feist and her counsel, including consulting agreements and expert witness agreements; (2) all payments made by Feist and her counsel to ICSI or EFF; (3) any litigation in which the subpoenaed nonparties participated in any way and in which Feist’s lawyers were also involved; (4) communications by the subpoenaed parties with respect to Feist or her counsel, Paxfire, RCN, the New Scientist, Poly NYU or the Netalyzer, (5) articles and drafts of articles by the non-subpoenaed parties concerning Feist or her counsel or the Netalyzer; (6) all research results concerning Paxfire or RCN or any of the ISPs mentioned in the Feist complaint; and (7) all 10 Dkt No. 21., Case No. 12-mc-80135. 11 Second Eckersley Decl., Dtk. No. 6, Case No. 12-mc-80135. 12 Id. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page10 of 30 - 4 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 communications with Google, Microsoft or Yahoo pertaining to Paxfire. The time period for these documents is January 1, 2008 to the present with respect to the documents in categories (1), (2) and (3); January 1, 2011 to the present with respect to category (4); and April 1, 2011 to the present with respect to category (5). Categories (6 and 7) have no temporal limitations. EFF filed a Motion to Quash Subpoenas Issued by Defendant Paxfire , Inc. and Request for Protective Order on June 6, 2012. On July 2, 2012, this Court issued an Order Relating Cases relating EFF’s Motion with three other Motions filed in the Northern District of California by Feist and two additional Nonparties, and referring all four motions to Magistrate Judge Cousins.13 On August 13, 2012, Magistrate Judge Cousins issued his Order,14 granting in part and denying in part the motions to quash the subpoenas. The Magistrate ordered that: (1) the subpoenas are quashed with respect to documents generated after July 24, 2011, that fall within categories (1), (2), (3) and (4) because they are protected by the work-product doctrine under Rule 26(b)(3); (2) the subpoenaed nonparties must produce non-privileged responsive documents generated before July 24, 2011, that fall within categories (1), (2), (3), and (4); (3) the subpoenas are quashed with respect to the documents in categories (5) and (6) because they contain confidential research; (4) the deposition subpoenas issued to ICSI, Christian Kreibich, EFF, and Peter Eckersley are quashed; and (5) the document subpoena issued to Jim Giles is quashed. Also, the Order requires that, “The Parties may file objections to this order within fourteen days after it is filed. Fed. R. Civ. P 72(a).” Under Rule 72(a), which concerns nondispositive matters, and under the corresponding Local Rule, Civil L.R. 72-2, the standard of review of objections is that the district judge must “modify or set aside any part of the order that is clearly erroneous or contrary to law.” Under 13 Order Relating Cases (Dkt. 16). 14 Order Granting in Part and Denying in part Motions to Quash (Dkt. No. 30, Case No. 12-mc- 80135) Case3:12-mc-80135-SI Document35 Filed09/12/12 Page11 of 30 - 5 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 these two rules governing objections to a magistrate judge’s order with respect to a nondispositive matter in this district, the objecting party is limited to the filing of a paper of five pages in length; the opposing party is not required to file a response unless ordered to do so by the Court; no hearing is allowed; and if after fourteen days have passed there is no briefing schedule set and the objections are not addressed by a ruling of the Court, they are automatically deemed denied. Civil L.R. 72-2. The plaintiff, Betsy Feist, has not objected to any aspect of the Magistrate Judge’s order. Paxfire has objected to certain provisions of the order.15 Rather than move for reconsideration of this procedural order and its accompanying restrictions, EFF ignored the order’s express language, unilaterally decided that it had the right to appeal the order de novo under Rule 72(b) and the corresponding Local Rule, Civil L.R. 72-3(a), and filed a fifteen page noticed motion under Civil L.R. 7-2 setting a hearing date of October 19, 2012. EFF’s noticed motion is not allowed under Civil L.R. 72-2. EFF essentially remakes nearly all of the arguments that it made in its motion to quash, as well as objecting to the production ordered by the Magistrate Judge set forth in point two above. It makes nine specified arguments in support of its objection, and asks for a de novo review of those portions of Magistrate Judge’s decision to which it objects. EFF’s motion lists the following nine objections to the Order: A. The Magistrate Judge Failed to Address Whether EFF’s First Amendment Rights Bar Enforcement of the Subpoenas, Which They Do, So the Decision Was Clearly Erroneous and Contrary to Law. B. The Magistrate Judge Failed to Address Whether the California Press Shield Law and First Amendment Protect Documents Ordered Produced. C. The Magistrate Judge Failed to Address Whether Protected Documents in Category 7 Must Be Produced. D. The Magistrate Judge Failed to Address Protection of Documents Under Rule 26(b)(4)(D), Which Precludes Discovery From Non-Retained Experts. 15 Dkt. No. 31. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page12 of 30 - 6 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 E. The Magistrate Judge Erred in Holding that Work Product Protection Only Applies After a Client Formally Retains Counsel. F. The Magistrate Judge Erred by Failing to Extend Confidential Research Protection to Category 4 and 7 Documents. G. The Magistrate Judge Erred by Failing to Sufficiently Address the Consequences of the Dismissal of Paxfire’s Counterclaims. H. If Permitted to Stand, the Magistrate Judge’s Order Would Have a Profound Negative Impact on EFF and Many Other Advocacy Organizations. I. The Magistrate Judge Erred in Apparently Concluding that Paxfire Documented the Relevance of Its Requests and Not Addressing the Undue Burden They Impose on EFF. II. ARGUMENT A. EFF Lacks Standing to Object to the Magistrate’s Decision Regarding the Applicability of the Work Product Doctrine. The work product doctrine is a protection afforded to a party and its attorneys. The doctrine, as codified in Fed. R. Civ. Proc. 26(b)(3)(A) , is that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or trial by or for another party or its representative. . .” Betsy Feist and her attorneys have the standing to invoke the work product protection doctrine in this case; however, EFF does not. Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006); Stoffels v. SBC Communications, Inc., 263 F.R.D. 406, 412 (W.D. Tex. 2009). Here, Ms. Feist and her attorneys have not objected to the Magistrate Judge's ruling, including that portion finding that the protection does not apply to a certain category of documents―her decision not to object constitutes an acceptance, or at least a waiver as to any objection, of the Magistrate Judge’s ruling concerning the application of this doctrine to her interests. A non- party cannot step in and object when the party the doctrine is meant to protect had the opportunity to object, but did not. B. The Correct General Standard of Review of the Magistrate Judge’s order is Whether It Is Clearly Erroneous and Contrary to Law, not de novo Case3:12-mc-80135-SI Document35 Filed09/12/12 Page13 of 30 - 7 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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. The Order concerns a discovery dispute, which is not a dispositive matter. Rule 72(a) states in pertinent part, “a) Nondispositive Matters. When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within fourteen days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” A discovery dispute is not dispositive of a party’s claims or defenses. Rulings by a magistrate judge regarding discovery disputes are reviewed under the clearly erroneous and contrary to law standard. Here the motions to quash at issue were referred to the Magistrate Judge as discovery disputes by the District Court and were expressly treated as such by the Magistrate Judge under Rule 72(a). EFF did not raise any issue as to the referral of its Motion as a discovery dispute at that time. It cannot be heard to complain now that it is dissatisfied with the ruling. Substantively, EFF’s arguments in this regard are also flawed. EFF suggests that when a subpoena is issued from and challenged in a district court other than the one in which the underlying case is proceeding, a separate miscellaneous proceeding in the first district court causes the standard of review of the challenge to be altered. (EFF Motion at 2-1.) The cases cited by EFF, NLRB v. Frazier, 966 F.2d 812 (3rd Cir. 1992) and NLRB v. Cable Car Advertisers, Inc., 319 F. Supp. 2d 991 (N.D. CA 2004) are distinguishable because they involved administrative subpoenas that were not ancillary to a district court action. EFF also cites to In re Rule 45 Subpoena Issued to Cablevision Sys. Corp., No. MISC 08–347(ARR)(MDG), 2010 U.S. Dist. LEXIS 40653 (E.D.N.Y. Feb. 5, 2010), a memorandum and order in Eastern District of New York that, in a footnote, seems to extrapolate erroneously from those two cases to state without sound analysis that any motion to quash filed in a court separate from the court where the underlying case is pending is dispositive. That extrapolation ignores that in discovery disputes concerning out-of-district judicial (rather than administrative) subpoenas the case itself will Case3:12-mc-80135-SI Document35 Filed09/12/12 Page14 of 30 - 8 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 continue whatever the ruling on the motion to quash―and constitutes a line of reasoning that is in conflict with that adopted by this district. See Highfields Capital Management, L.P. v. Doe, 385 F. Supp 2d 969, 971 (N.D. Cal 2005) (applying “clearly erroneous and contrary to law” procedure and standard of review of a motion to quash a subpoena relating to a case in another district court). “Although resolution of the motion will conclude the miscellaneous proceeding in this district, plaintiff's complaint against defendant will remain pending before the District of Massachusetts, irrespective of resolution of the miscellaneous proceeding”. Id. See also Channelmark Corp. v. Destinations Products Int’l, Inc., No. 99 C 214, 2000 U.S.Dist. LEXIS 9854, at *4 (N.D. Ill. July 7, 2000). While the Highfields court also reviewed the Magistrate Judge’s order de novo, it explained that, “[t]he fact that the plaintiff suggests it may dismiss its complaint if this Court grants the motion to quash does not serve to transform the motion into a dispositive motion.” Highfields, 385 F. Supp 2d at 971 n. 3. 2. The Standard of the Review Is Not Heightened by the Fact That the Order of the Magistrate Judge’s Does Not Address in Particulars Each and Every Argument Offered by EFF Made in Its Motion to Quash Here, the Magistrate Judge, after reviewing the filings, determined that a hearing on the motion was unnecessary, and cancelled a hearing that had been set and decided the matter on the papers. As evidenced by that act, the Magistrate Judge clearly considered EFF’s arguments. The Magistrate Judge then complied with the requirement of Rule 72(a) by issuing a written order stating his decision. When the record indicates that a magistrate judge has considered all of the materials and he subsequently does not, in his written order, address a particular argument made by the moving party, his order may be considered an implicit denial of those arguments as facially insubstantial―that is, as not even worth addressing in written form. See Miller v. Automobile Club of New Mexico, Inc., 420 F.3d 1098, 1117 (10th Cir. 2005)(where the record indicated that district court considered all materials, “we may properly construe a district court’s failure to address arguments raised in a Rule 72(a) objection ‘as an implicit denial of those arguments.’”) That the Magistrate Judge has rejected a particular argument of EFF by issuing a ruling that Case3:12-mc-80135-SI Document35 Filed09/12/12 Page15 of 30 - 9 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 inherently rejects that argument but did not provide a specific analysis of that argument and his decision-making with respect to it does not constitute a basis for a different standard of review. 3. EFF’s Presentation of a First Amendment Claim Does Not Change the Standard of Review or the Procedures for Obtaining Review EFF’s claim that its First Amendment Claim entitles it to a heightened standard of review is erroneous. Purely legal, constitutional claims are reviewed under the “contrary to law” standard identified in 28 U.S.C. § 636(b)(1), which is consistent with both the constitutional and statutory authority vested in the courts’ district and magistrate judges. Adolph Coors Co. v. Wallace, 570 F. Supp. 202, 205 (1983). More significantly here, despite allowing the District Judge to “overturn any conclusions of law which contradict or ignore applicable precepts of law, as found in the Constitution, statutes or case precedent,” the review procedure does not convert this review from one to be taken pursuant to Rule 72(a) and Civil L.R. 72-2, with its five page and other limitations, into one pursuant to Rule 72(b) and Civil L.R. 72-3(b). Put simply, EFF’s abuse of the review process is inexcusable, and for this reason (as explained in Paxfire’s separate motion seeking such remedy) EFF’s instant motion should be struck. C. EFF Presents no Basis to Reverse the Order to Produce Documents Whatever standard of review is applied, that portion of the Magistrate Judge’s order to which EFF objects must be upheld by this Court. Paxfire is entitled to EFF’s evidence, particularly with regard to EFF’s communications with other researchers and with the law firm who ultimately solicited and now represent Ms. Feist: without this material, Paxfire would be unfairly deprived of an opportunity to develop its defenses and to prosecute its counterclaims. EFF is the entity that is ultimately behind the New York class action: it instigated this lawsuit, providing information to Ms. Feist’s lawyers, before Ms. Feist was ever contacted by her lawyers for this suit and told about Paxfire, and doing so for the acknowledged purpose of causing the lawsuit to be filed.16 Indeed, during her deposition Ms. Feist conceded she did not know if she ever had a search or keyword “redirected” by RCN through Paxfire.17 Appropriately, Paxfire 16 Second Eckersley Decl. 17 Feist Depo. at 9, 196-98. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page16 of 30 - 10 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 served document and deposition subpoenas on Mr. Eckersley and his EFF to learn what evidence they have supporting the lawsuit they instigated. As for its Counterclaims, while Paxfire understands that an argument exists, under the First Amendment, that Paxfire may have a heightened burden of proving fault in a “sham” lawsuit or in defamation, nothing in the First Amendment shields EFF and Eckersley from Paxfire’s discovery conducted in Paxfire’s effort to satisfy this burden. Indeed, this heightened burden necessitates that Paxfire be allowed broad discovery. In Herbert v. Lando, 441 U.S. 153 (1977), the U.S. Supreme Court rejected precisely the arguments now advanced by EFF, explaining that investigations into the “editorial process” for falsehood or libelous reporting would not lead to self-censorship of stories that are documented and true, but it would be “only knowing of reckless error [that] will be discouraged,” something which would not threaten the constitutionally protected freedom of the press. Id. at 173. Moreover, EFF is reminded that, even under the California Constitution, Art. I, Sec. 2(a), it can be held “responsible for the abuse of” the right to speak and publish freely. While speech and advocacy, including associating with others in bringing a lawsuit, enjoy a degree of protection, defamation and the bringing of a “sham” lawsuit are actionable wrongs subject to the ordinary rules of discovery. Finally, no special privileges bar discovery of matters for which EFF and Eckersley are fact witnesses in support of claims or defenses in the Feist action. The subpoenas to EFF and Eckersley are narrowly drawn, seeking information specifically relevant to Paxfire’s defenses (and counterclaims). In her Rule 26(a)(1) Disclosures, Ms. Feist expressly identified EFF and Mr. Eckersley as sources of information for her case in chief and for discovery.18 What Paxfire seeks includes evidence concerning the nature of the Netalyzer; information that EFF obtained, directly and through its collaborations with the ISI researchers and Paxfire’s competitors (such as Google and Microsoft); and anything else that will assist Paxfire in disproving the technical allegations in Ms. Feist’s ECPA claim as well as her tort claims brought under New York law. The document and Rule 30(b)(6) subpoenas also seek information that 18 Plaintiff Feist’s Revised Rule 26(a)(1) Disclosures, Dtk No. 21, Ex. K at 15, Case No. 12-mc- 80135. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page17 of 30 - 11 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 would demonstrate a common scheme or plan, motive, malice, and absence of mistake, evidenced by Mr. Eckersley’s and EFF’s intentional failure to disclose their connections to Ms. Feist’s lawyers and her lawsuit in EFF’s blog postings. Mr. Eckersley, on his own behalf and acting on behalf of EFF, had submitted into the record in this proceeding and in the underlying New York case, not one, but two declarations in support of various positions taken by them and by Ms. Feist. Such action constitutes a waiver by the movants of any privilege regarding the topics discussed in those declarations. Privileges cannot be used simultaneously as a sword and as a shield. See 1 McCormick on Evidence § 93 (John W. Strong, ed., 5th ed.1999) (noting that client's conduct, such as partial disclosure , may constitute waiver where it would be “unfair for the client to invoke the privilege thereafter”); see also 3 Weinstein's Federal Evidence § 503.41 (Joseph M. McLaughlin, ed., 2d ed.1997) (waiver by implication may occur whenever party takes a position that makes it unfair to protect attorney- client communications, such as when a client testifies about portions of such communications or client relies on attorney's advice as element of claim or defense); United States v. Workman, 138 F.3d 1261, 1263-64 (8th Cir.1998) (implied waiver is to prevent defendant from “selectively assert[ing] the privilege to block the introduction of information harmful to his case after introducing other aspects” of attorney-client communications that are beneficial; "attorney client privilege cannot be used as both a shield and a sword”). By introducing the declarations, Mr. Eckersley and EFF must submit to depositions and document discovery at least as to the topics contained in those declarations. III. No Privilege or Constitutional Right Shields EFF from This Routine Discovery In commencing Paxfire’s rebuttal to EFF’s assertion of “its” various privileges, Paxfire notes the following: although the Federal Rules allow restrictions on the disclosure of arguably relevant information, i.e. Rules 45, 26(b)(3), 26(b)(4)(A), 26(b)(4)(C), the burden is on the person objecting to discovery to demonstrate each element justifying secrecy. The Supreme Court has expressly rejected EFF’s First Amendment “defense” to discovery. Herbert, 441 U.S. 153 (no “editorial process” privilege in defamation case; the heightened burden Case3:12-mc-80135-SI Document35 Filed09/12/12 Page18 of 30 - 12 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 of proving “actual malice,” rather than limits or ban on discovery, provides protection for First Amendment rights). “Given the required proof [actual malice], however, damages liability for defamation abridges neither freedom of speech nor freedom of the press.” Id. at 160. In Herbert the Court went on to focus on whether discovery would impermissibly infringe the First Amendment. It found that it would not: “[T]hese cases [imposing the higher burden of proof did not] suggest any First Amendment restriction on the sources from which the plaintiff could obtain the necessary evidence to prove the critical elements of his cause of action. . . . Inevitably, unless liability is to be completely foreclosed, the thoughts and editorial processes of the alleged defamer would be open to examination. . . . [A]ccording an absolute privilege to the editorial process of a media defendant in a libel case is not required, authorized, or presaged by our prior cases, and would substantially enhance the burden of proving actual malice, contrary to the expectations of New York Times, Butts, and similar cases.” Id. at 160, 169. Indeed, the Court recognized that the higher burden would lead to more discovery: “The plaintiff's burden is now considerably expanded. In every or almost every case, the plaintiff must focus on the editorial process and prove a false publication attended by some degree of culpability on the part of the publisher.” Id. at 176. In rejecting the requested absolute “process” privilege, the Court observed that “the suggested privilege for the editorial process would constitute a substantial interference with the ability of a defamation plaintiff to establish the ingredients of malice as required by New York Times.” Id. at 170. Rejecting the suggestion that discovery into the “process” of preparing the publication would impermissibly chill protected First Amendment activity, such “effects are precisely what New York Times and other cases have held to be consistent with the First Amendment. Spreading false information in and of itself carries no First Amendment credentials. “‘[T]here is no constitutional value in false statements of fact.’ . . . If such proof results in liability for damages which in turn discourages the publication of erroneous information known to be false or probably false, this is no more than what our cases contemplate and does not abridge either freedom of speech or of the press.” Id. at 171-172 [citation omitted]. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page19 of 30 - 13 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 The Court correctly explained that permitting discovery, as opposed to the recognition of an absolute privilege, promotes the First Amendment value of accuracy without self-censorship: In resolving the issue whether the publication was known or suspected to be false, it is only common sense to believe that inquiry from the author, with an opportunity to explain, will contribute to accuracy. If the publication is false but there is an exonerating explanation, the defendant will surely testify to this effect. Why should not the plaintiff be permitted to inquire before trial? On the other hand, if the publisher in fact had serious doubts about accuracy, but published nevertheless, no undue self-censorship will result from permitting the relevant inquiry. Only knowing or reckless error will be discouraged; and unless there is to be an absolute First Amendment privilege to inflict injury by knowing or reckless conduct, which respondents do not suggest, constitutional values will not be threatened. Id. at 173. The Court also considered and rejected EFF and Eckersley’s argument that discovery would impermissibly interfere with internal deliberations claimed essential to EFF’s advocacy function: It is also urged that frank discussion among reporters and editors will be dampened and sound editorial judgment endangered if such exchanges, oral or written, are subject to inquiry by defamation plaintiffs. We do not doubt the direct relationship between consultation and discussion on the one hand and sound decisions on the other; but whether or not there is liability for the injury, the press has an obvious interest in avoiding the infliction of harm by the publication of false information, and it is not unreasonable to expect the media to invoke whatever procedures may be practicable and useful to that end. Moreover, given exposure to liability when there is knowing or reckless error, there is even more reason to resort to prepublication precautions, such as a frank interchange of fact and opinion. Accordingly, we find it difficult to believe that error-avoiding procedures will be terminated or stifled simply because there is liability for culpable error and because the editorial process will itself be examined in the tiny percentage of instances in which error is claimed and litigation ensues. Nor is there sound reason to believe that editorial exchanges and the editorial process are so subject to distortion and to such recurring misunderstanding that they should be immune from examination in order to avoid erroneous judgments in defamation suits. Id. at 173-174. Here again, discovery promotes, rather than infringes, First Amendment values. In Seattle Times Co. V. Rhinehart, 467 U.S. 20, 37 (1984), the Court did not bar discovery, but instead approved the use of a protective order precluding the release outside current litigation of broad discovery of a religious organization, including identities of persons making donations over five-year period and amounts. See also, e.g. Kerr v. U.S. Dist. Ct. for N. D., 426 U.S. 394, Case3:12-mc-80135-SI Document35 Filed09/12/12 Page20 of 30 - 14 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 28 405-406 (1976) (approving use of protective order restricting access to discovered information and potential for in camera review by district court in response to state claim of privilege in confidential communications among prison decision makers). The court in Westmoreland v. CBS, Inc., 97 F.R.D. 703, 706 (S.D..N.Y. 1983) also rejected a similar claim that the First Amendment protected a self-critical appraisal internal report. Relying on Herbert, the court observed that “inquisition” via discovery into the “editorial process” implicated a “substantial and important interest, not lightly to be overridden in litigation, . . . [t]he question in this case has, however, already been substantially answered by the Supreme Court in Herbert v. Lando, which went much further.” A. No General Privilege Exists for Advocacy Organizations or Researchers Such as Movants There is no general rule or privilege exempting “advocacy,” organizations, even those who exercise their constitutional rights, from responding to routine discovery requests. See, e.g., Wilkinson v. FBI, 111 F.R.D. 432, 437 (C.D. Cal. 1986) (no showing that discovery would impair associational interests of civil rights group). Here, Paxfire in no way seeks to prevent EFF from investigating and advocating for civil liberties issues arising in the context of the Internet.19 EFF has admitted that it instigated the lawsuit. Paxfire simply seeks to discover what it knows about the factual allegations Feist made against Paxfire in her Complaint, so as to understand the factual basis for her Complaint. Further, Ms. Feist has listed a number of organizations and persons, including the three previously identified ICSI researchers and Google and Microsoft, as well as EFF and Mr. Eckersley, as having information about her claims.20 Mr. Eckersley acknowledged, in his second declaration, that he discussed Paxfire’s technology with these entities, and Paxfire must be allowed to inquire as to the specifics of this information that led him, EFF, and Ms. Feist to bring the underlying lawsuit. Paxfire is not seeking discovery because EFF and Eckersley 19 NAACP v. Button, 371 U.S. 415 (1963) (unconstitutional ban on certain legal referrals; nothing to do with ordinary discovery) and similar cases are thus inapposite. See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) (statutory ban on gender discrimination by civil organization did not infringe right of free association; same). 20 Ex. J, Plaintiff Feist’s Revised Rule 26(a)(1) Disclosures at 11, 13, 15. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page21 of 30 - 15 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 “exercised” their constitutional rights, but simply as part of its own right to investigate the merits of (and defenses against) Feist’s allegations. Moreover, civil liability, e.g. in tort, is routinely imposed on those who have “exercised” a constitutional right. EFF is nothing like the political groups given some qualified protection for internal discussions and formulations of views. Here, the requested discovery primarily concerns EFF’s communications with outsiders, and internal information concerning Feist and Paxfire, and not the internal formulation of general policy and strategy regarding its Internet advocacy. Any protection should be limited to purely internal communications not specifically related to Feist or Paxfire. Perry v. Schwarzenegger, 591 F.3d 1147, 1162-63 (9th Cir. 2010) (limited protection). Similarly, although there is protection for scientific research under the First Amendment, there is no privilege barring discovery.21 B. No General Privilege Exists for Investigations EFF also seeks to avoid discovery because it is supposedly investigating potential abuses of civil liberties and privacy on the Internet. While the justification for limiting discovery may be higher where the alleged investigation is infused with promises of confidentiality to unnamed sources, neither EFF nor Eckersley has interposed any such risk of betraying confidences: indeed, they disclosed their information to Ms. Feist, the New Scientist, and to the public in blogs; and they identified in their blogs and in Mr. Eckersley’s declarations who and what were their sources. Further EFF lacks the necessary indicia of a truly independent press to justify protection. See, 21 See, e.g., United States v. IBM, 83 F.R.D. 92 (S.D.N.Y. 1979) (no professional fellowship privilege; no showing that discovery sought disclosure of genuinely confidential sources); U.S. v. Doe, 460 F.2d 328 (1st Cir. 1972); U.S v. Doe, 332 F. Supp. 938 (D. Mass. 1971); Deitchman v. E.R. Squibb & Sons, 740 F.2d 556, 561 (7th Cir. 1984) (no absolute privilege blocked disclosure from cancer registry in products liability case); Anker v. G.D. Searle & Co., 126 F.R.D. 515, 519 (M.D.N.C.1989) (“experts or researchers do not have any federal statutory, case law or common law privilege which protects against their having to involuntarily share their expertise with the parties in the litigation. Nor does [state] law provide privilege protection for academic or scientific researchers.”); In re Snyder, 115 F.R.D. 211, 213 (D.Ariz.1987) (“there is no general academic privilege protecting [the researcher's information]”); Burka v. U.S. HHS, 87 F.3d 508, 520-21 (D.C. Cir 1996) (FOIA exemption 5 case applying civil discovery rules, “we cannot say that there is an established or well-settled practice of protecting research data in the realm of civil discovery on the grounds that disclosure would harm a researcher's publication prospects.”); In re American Tobacco Co., 880 F.2d 1520, 1528-29 (2d Cir. 1989). Case3:12-mc-80135-SI Document35 Filed09/12/12 Page22 of 30 - 16 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 e.g., Chevron Corp. v. Berlinger, 629 F.3d 297, 308 (2d Cir. 2011) (denying press privilege and ordering disclosure of documentary “outtakes”). In Chevron the court explained: Those who gather and publish information because they have been commissioned to publish in order to serve the objectives of others who have a stake in the subject of the reporting are not acting as an independent press. Those who do not retain independence as to what they will publish but are subservient to the objectives of others who have a stake in what will be published have either a weaker privilege or none at all. . . . The privilege is designed to support the press in its valuable public service of seeking out and revealing truthful information. An undertaking to publish matter in order to promote the interests of another, regardless of justification, does not serve the same public interest, regardless of whether the resultant work may prove to be one of high quality. It is not the policy of the law to exempt such undertakings from the obligation to produce information relevant to a dispute before a court of law. Id. C. Neither California Nor New York Press Privilege Law Applies to EFF Because EFF is Not “Press” As a preliminary matter, and contrary to EFF’s protestations, Paxfire does not agree that state law applies to this dispute. To the contrary, federal law applies. The major claim brought by Ms. Feist is under ECPA, a federal statute, pursuant to which federal question jurisdiction applies. Paxfire seeks discovery to defend against this claim22. For this reason the justification, if any exists, for resisting discovery must arise from federal common or statutory law. See Eagle Precision Technologies, Inc. v. Eaton Leonard Robolix, Inc., No. 03cv352-BEN(WMC)2005 U.S. Dist. LEXIS 47173, at *7 (S.D.Ca. Aug. 11, 2005); Boyd v. City & County of San Francisco, No. C-04-545MM(JLS) 2006 U.S. Dist. LEXIS 27647, at *10 (N.D.Ca. May 1, 2006) (“Assertions of privilege in federal question cases are governed by federal law, while state privilege law applies to purely state claims brought in federal court pursuant to diversity jurisdiction. . . . State law claims that are pendent to federal question 22 EFF apparently has seen that, in its opposition to the Motion by Jim Giles to Quash Paxfire’s subpoena to Mr. Giles, Paxfire argues that state law applies. What EFF overlooks is that the evidence sought from Mr. Giles concerns only Paxfire’s counterclaims—defamation and tortious interference with contract which are purely New York state law claims. With regard to the subpoenas served upon EFF and Mr. Eckersley Paxfire is seeking to obtain evidence to defend itself from Ms. Feist’s main claim, that is, an allegation that Paxfire violated ECPA. This claim s founded in federal statutory law and thus federal law, not state law, applies to the questions of privilege and the scope of discovery. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page23 of 30 - 17 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 cases, however, are governed not by state law but by federal privilege law.”); see, e.g. Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir. 2005) (rejecting federal privilege for hospital peer review report in prisoner death case); Wm. T. Thompson Co. v. Gen. Nutrition Corp., 671 F.2d 100, 104 (3d Cir.1982) (federal rule favoring admissibility trumped state privilege claim); Fed. R. Evid. 501, advisory committee note (“If the rule proposed here results in two conflicting bodies of privilege law applying to the same piece of evidence in the same case, it is contemplated that the rule favoring reception of the evidence should be applied.”); United States v. Nixon, 418 U.S. 683, 710 (1974) (not even the President enjoys an absolute privilege). For these reasons, and contrary to EFF’s protestations to the contrary, California state law, including its Shield Law, is not applicable. Additionally, California’s press privileges, Cal. Const., Art I, Sec. 2(b) (the Shield law) and Cal. Evid. Code 1070(a), do not apply even assuming that California law does: here, EFF and Eckersley are not press. If courts were to regard EFF’s blogs as “press,” and Mr. Eckersley as a “reporter,” then the privilege would literally swallow up, and immunize from routine discovery, every corporation, individual, or other entity that published a “news” blog, every researcher that published in academic journals, and every vigilante with a Facebook page. The ease and efficiency of the Internet as a communications tool cannot expand the press privilege to a leviathan that swallows the discovery rules. If this is to be done, it must be done only by the legislature. EFF’s website23 describes itself as a militant warrior, with a staff of technologists and activists, not as the “press” or media with a staff of neutral reporters: When our freedoms in the networked world come under attack, [EFF] is the first line of defense. . . . From the beginning, EFF has championed the public interest in every crucial battle effecting digital rights. . . . EFF achieves significant victories on behalf of consumers and the general public. EFF fights for freedom primarily in the courts, bringing and defending lawsuits even when that means taking on the US government or large corporations. By mobilizing more than 140,000 concerned citizens through our Action Center, EFF beats back bad legislation. In addition to advising policymakers, educates the press and public. 23 See www.eff.org [visited 6/15/12]. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page24 of 30 - 18 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 By its own admission, EFF “educates” the press: it is not the press. As a public figure, EFF is frequently “in the news,” but that is quite different than “reporting the news.” The shield law is only available to a “newspaper, magazine, or other periodical publication”—not EFF’s website. Moreover, EFF lacks the essential ingredient of media entitled to claim the privilege, e.g., independence. Eckersley admits that he has been a “paid consultant” to Feist’s counsel, apparently on similar issues related to “network neutrality.”24 There was at least some consideration that Mr. Eckersley would act as a “paid expert consultant in this particular matter.”25 And EFF instigated the suit for its own purposes. Mr. Eckersley’s lack of “press” independence is truly startling. He claims to have had detailed discussions with several self-styled experts at Berkley and in New York about Paxfire and “confidential” conversations with Paxfire’s competitors at Google, Yahoo, and Microsoft. But he didn’t have a single communication with Paxfire concerning its supposedly troublesome activities. If his concerns for civil liberties were genuine, he would simply have picked up the phone and called Paxfire before launching a lawsuit filled with demonstrably false and defamatory allegations. His actions are those of a partisan, vigilante, or a shill for Paxfire’s competitors, not those of the “press” nor of a bona fide advocate for “civil liberties.” The core concern of the “shield law” is the protection of confidential sources. Mr. Eckersley states that he “implicitly or explicitly” promised by sources confidentiality,26 but there is no listing of specific conversations or of “sources.” Moreover, these “sources” are apparently at ICSI, Google, Yahoo, and Microsoft, competitors of Paxfire, and the topics of discussions related to Paxfire, not any “whistleblower’ wrongdoing at their respective companies. The information communicated appears to be purely of a commercial nature and not the sort of sensitive information related to intimate personal details, politics, medical privacy, or “internal” misconduct that is the type of “confidential” information the “shield” was designed to protect. 24 Second Decl. P. Eckersley at ¶ 19. 25 Id. at ¶ 20. Also, as discussed above, it is apparent that EFF in actively soliciting cy pres awards as part of its business model, and Paxfire believes that this is what it did here. 26 Id. at ¶ 17. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page25 of 30 - 19 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 Similarly, the status of EFF (as a self-appointed internet activist) and Eckersley (as a paid consultant, expert, and technologist) deny them any developing common law privilege for non- party journalists. EFF’s function was to take down Paxfire and not to simply report on Paxfire’s activities as a neutral and independent reporter. EFF absolutely has the right to be an activist but, at least with respect to Paxfire, it cannot at the same time wrap itself in any of the press privileges. In contrast, the non-party Seattle Times investigative reporter from whom discovery was sought in Wright v. Fred Hutchinson Cancer Research Center, 206 F.R.D. 679 (W.D. Wash. 2002), was undisputedly an independent journalist. There, the only question was whether he lost that status, and forfeited the qualified privilege, because he was said to have a “bias” favoring plaintiffs who were patients in a class action challenging a bone marrow research protocol. The court held that he did not lose the privilege because of this “bias.” Id. at 681. The court observed that Wright “was [not] being paid by plaintiffs, or shown that he was otherwise motivated to investigate defendants for non-journalistic purposes.” (Italics added.) Id. Here, Eckersley had been paid by Feist’s counsel before, considered being paid in this case, now serves as an “informal consultant,” and from the outset of his “investigation” had the non-journalistic purpose of protecting the purity of the Internet from what he believed was abusive conduct by Paxfire, doing so by putting Paxfire out of business—and doing so in league with Paxfire’s competitors Google and Microsoft. He is not entitled to the privilege. The privileges asserted by the “non-party” journalists in the cases cited by EFF stand in stark contrast to the status of the movants in the present controversy. Everything Plaintiff Feist “knows” about the case she learned from EFF with its associated researchers. The discovery sought by Paxfire of EFF is unquestionably relevant. Since Feist only learned about Paxfire from EFF and its associates, the focus of the “actual malice” inquiry will be on EFF and Eckersley as well as Ms. Feist as the true instigators of this litigation. In contrast, the court in Schoen v. Schoen, 48 F.3d 412, 416-17 (9th Cir. 1995) held only that disclosure could not be used to prove /// Case3:12-mc-80135-SI Document35 Filed09/12/12 Page26 of 30 - 20 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 actual malice due to a timing issue and as would it be cumulative of evidence already in the record. D. Neither the Attorney Client Privilege Nor the Work-Product Doctrine Shield EFF EFF claims that Rule 26(b)(4)(D) shields them from discovery because they were “informally consulted in preparation for trial.” At most, that protection began on July 25, 2012; prior to that date there was no client and no litigation. As discussed above, EFF has no standing to assert Ms. Feist’s work product protections. Even if they had the standing to make such an objection, the objection would be unwarranted. The work product doctrine protects the work product of an attorney created during or in anticipation of litigation, Hickman v Taylor, 329 U.S. 495 (1947). Neither applies before an attorney has a client. See Lamar Advertising of South Dakota, Inc. v. Kay, 267 F.R.D. 568 (D.S.D. 2010) (holding that a factual investigation conducted prior to the decision by a person to bring a lawsuit does not invoke the work product doctrine) (citations omitted); 800 Front Street Corp. v. Travelers Property Casualty Co. of America, No., CV 06-500(LDW)(ARL), 2006 U.S.Dist. LEXIS 84160, at *11 (E.D.N.Y. Nov. 20, 2006) (holding that work product doctrine applied where consulting expert was retained by counsel “shortly after they were given authorization by the bankruptcy court to pursue the insurance claim as well as litigation”). Thus, assuming that the protection applied, the earliest that it could apply is after July 25th, when Mr. Kim Richman walked Ms. Feist through the Netalyzr program and, as a result, convinced Ms. Feist to become his client to bring this lawsuit. Prior to this time, there was no client, no lawsuit, and nothing to which the confidentiality protections of the work product doctrine could attach. Material prepared in the ordinary course of a business function and thereafter used in litigation does not, by such use, acquire the protection of the work product doctrine, Lamar Advertising of South Dakota, Inc., 267 F.R.D. at 577-78; nor of the attorney client privilege, U.S. Postal Serv. v. Phelps Dodge Ref. Corp., 852 F. Supp. 156, 161 (E.D.N.Y. 1994)(work by engineering firm not covered by the attorney-client privilege where consultant's opinion was based on factual and scientific evidence rather than client confidence). As explained in William A. Gross Case3:12-mc-80135-SI Document35 Filed09/12/12 Page27 of 30 - 21 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 Construction Associates, Inc. v. Am. Mfrs. Mut. Ins. Co., 262 F.R.D. 354, 360 (S.D.N.Y. 2009) (citation omitted): However, there is no work product protection for documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation. . . .Even if such documents might also help in preparation for litigation, they do not qualify for protection because it could not fairly be said that they were created "because of" actual or impending litigation. Id. Here, Paxfire must prepare its defense. It is entitled to explore in discovery the basis of Ms. Feist's allegations. Ms. Feist has expressly alleged in her Complaint that she “learned” that her Internet searches were being wiretapped, profiled, and disclosed and sold to third parties from information provided by these researchers, by name, and by the Netalyzr used by these researchers and EFF. As explained by the District Court in Securities Exchange Commission v. Collins & Aikman Corp., 256 F.R.D. 403, 410 (S.D.N.Y. 2009): Rule 11 of the Federal Rules of Civil Procedure [requires] all parties to have "evidentiary support" for the factual contentions in their pleadings. Given that requirement, producing the compilations of documents that support the factual allegations of a complaint reveals no more than that already revealed by the filing of the complaint. Id. The information held by EFF is needed by Paxfire to prepare its defense as well as its counterclaims; it is unable to get this information from any other source. As explained, the Netalyzr cannot provide the information that Ms. Feist claims that it did. Thus, Paxfire must obtain the documents from persons who provided Ms. Feist the information on which she based her complaint. This includes EFF. Finally, to have protection under the doctrine, the information must be confidential. EFF has discussed the information sought through its Internet web site. Paxfire now seeks the specifics. No confidentiality exists. IV. The Need for Discovery Outweighs Any Speculative Need for Secrecy To the extent a balancing of competing interests is required to resolve this dispute,27 that balance favors discovery. Relevant factors include the nature of the suit; the extent to which 27 See, e.g., In re Application of Consumers Union of U.S., 495 F. Supp. 582 (S.D.N.Y. 1980). Case3:12-mc-80135-SI Document35 Filed09/12/12 Page28 of 30 - 22 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 information sought goes to the “heart of the claim” of the party seeking disclosure; whether the party seeking discovery has exhausted other sources for the information in question; and the impact of requested discovery on First Amendment interests. Shoen v. Shoen, 5 F.3d 1289, 1293 (1993). EFF and Eckersley are not independent journalists entitled to claim the journalists’ privilege for non-parties: they instigated this suit. Eckersley even considered, for a time, being a paid consultant, but now claims to be an “informal” consultant to Feist’s counsel. Thus, there is an insufficient “First Amendment” interest at stake to trigger any balancing inquiry, even under the qualified privilege for non-party journalists. Even if there were, Paxfire meets any test. The requested discovery goes to the heart of both the Feist suit against Paxfire, e.g., what did Paxfire “do,” if anything, that “hurt” Feist, and to Paxfire’s defamation/interference counterclaims against Feist, e.g., did “she” act with actual malice in making false and defamatory allegations against Paxfire. Paxfire already deposed her, thus exhausting “her” knowledge. Her depositions as well as her Rule 26(a)(1) disclosures provide no basis for her allegations: she testified that she basically had no independent knowledge concerning Paxfire and that everything she “knew” she learned from EFF and its associates. To block this discovery would be to unfairly impede Paxfire from gathering key evidence central to its defenses and counterclaims. Here, put simply, EFF and Mr. Eckersley are no more than fact witnesses. Feist had no idea about Paxfire or what Paxfire allegedly “did” that “injured” Feist until EFF told her counsel. It was EFF and Eckersley that learned, through their own work and through their colleagues, the “facts” ultimately set forth in Feist’s complaint. Thus, they are more akin to a patient’s treating physician and not to a “distant” academic expert, and subject to routine discovery and no protection applies.28 28 See, e.g., Dung Ngo v. Standard Tools & Equipment, Co., Inc., 197 F.R.D. 263 (D. Md. 2000); Williams v. Rene, 886 F. Supp. 1214 (D.V.I. 1995), rev'd on other grounds, 72 F.3d 1096 (3d Cir. 1995); Quarantillo v. Consol. Rail Corp., 106 F.R.D. 435 (W.D. N.Y. 1985) (Neurologist who had been treating plaintiff for back injuries over prior 14 years, and whom plaintiff had designated an expert witness for trial, would not be considered an “expert” but rather an “actor” or “viewer.”); Keith v. Van Dorn Plastic Machinery Co., 86 F.R.D. 458 (E.D. Pa. 1980) (an “actor or viewer” expert witness refers, for example, to a doctor who performed an operation that gave rise to a malpractice claim, or to an actuary who witnessed an automobile accident, and such witnesses Case3:12-mc-80135-SI Document35 Filed09/12/12 Page29 of 30 - 23 - PAXFIRE’S OPPOSITION TO MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE Misc. CV12-80135 SI (NC) 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 V. CONCLUSION The Magistrate Judge’s Order must be reviewed under the clearly erroneous and contrary to law standard. Except to those objections separately made by Paxfire in its previously and timely filed Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge29, the Order must be upheld and the documents called for promptly produced. To the extent that the Magistrate Judge’s order did not expressly address category 7 documents, those being external communications with Paxfire’s competitors: Google, Microsoft and Yahoo, the Order did not quash the subpoenaed production. The order should be upheld as to that category of documents as they are relevant to the underlying case in New York30; and there is no basis under privilege or other law for documents evidencing such communications with commercial entities and competitors of Paxfire to be withheld. Dated: September 12, 2012 BERGESON, LLP /s/ Jaideep Venkatesan Attorneys for Defendant-Counterclaim Plaintiff PAXFIRE, INC. Dated: September 12, 2012 ANDREW GROSSO & ASSOCIATES /s/ Andrew Grosso, pro hac vice Attorneys for Defendant-Counterclaim Plaintiff PAXFIRE, INC. should be viewed as fact witnesses); Leviathan, Inc. v. M/S Alaska Maru, 86 F.R.D. 8 (W.D. Wash. 1979); Barkwell v. Sturm Ruger Co., Inc., 79 F.R.D. 444, 446 (D. Alaska 1978) (information acquired and opinions formed by defendant's expert prior to his retention by defendant was discoverable by plaintiffs without regard to the expert's status as an expert, since the rule does not apply to facts known or opinions held that were not acquired or developed in anticipation of litigation); Harasimowicz v. McAllister, 78 F.R.D. 319 (E.D. Pa. 1978); Norfin, Inc. v. Intern. Business Machs. Corp., 74 F.R.D. 529 (D. Colo. 1977). 29 Dtk No. 31, Case No. 12-mc-80135. 30 Second Eckersley Decl.; see Cease and Desist Letter from Google to RCN Corp., Dtk. No. 20, Attach. 1, Case No. 12-mc-80135. Case3:12-mc-80135-SI Document35 Filed09/12/12 Page30 of 30