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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 1 Ira P. Rothken (SBN #160029) 2 Robert L. Kovsky (SBN #61770) ROTHKEN LAW FIRM LLP 3 3 Hamilton Landing, Suite 280 4 Novato, CA 94949 Telephone: (415) 924-4250 5 Facsimile: (415) 924-2905 6 Kirk J. Retz (#170208) 7 Deann Flores Chase (#183937) 8 RETZ & HOPKINS, LLP 9 21535 Hawthorne Blvd., #200 Torrance, CA 90503 10 Telephone: (310) 540-9800 11 Facsimile: (310) 540-9881 12 Attorney for Defendants 13 Justin Bunnell, Forrest Parker, Wes 14 Parker and Valence Media, Ltd. 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA 17 COLUMBIA PICTURES INDUSTRIES, Case No. 06-01093 FMC 18 INC., et al. 19 MEMORANDUM OF POINTS Plaintiffs, AND AUTHORITIES IN 20 SUPPORT OF DEFENDANTS' 21 vs. OBJECTIONS TO AND MOTION FOR REVIEW OF 22 JUSTIN BUNNELL, et al., ORDER RE SERVER LOG 23 DATA 24 Defendants. 25 DATE: July 16, 2007 26 TIME: 10:00 a.m. 27 CTRM: 750 Hon. Florence Marie Cooper 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REVIEW OF ORDER RE SERVER LOG DATA Columbia Pictures, et al. v. Bunnell, et al. U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC 1 TABLE OF CONTENTS 2 Page I. INTRODUCTION .................................................................................. 1 3 4 II. FACTUAL BACKGROUND ................................................................ 6 5 III. LEGAL ARGUMENT ........................................................................... 16 6 A. The Magistrate Judge Did Not Have Authority 7 or Jurisdiction to Issue the Discovery Order Because It 8 Amounts to an Injunction That Disposes of Ultimate 9 Issues in the Case. ........................................................................ 16 10 B. The Magistrate Judge’s Order Should Be Reviewed 11 Because It Infringes on Constitutional Rights and Is Contrary to Law. ...................................................................... 26 12 13 1. Because of the Constitutional Implications, an 14 Article III Court Should Exercise Independent Judgment and Review the Magistrate Judge's Order. ........ 26 15 16 2. The Magistrate Judge Failed To Perform an Appropriate Balancing Test Before Overriding the 17 First Amendment Rights of Visitors to Defendants’ 18 Website to Participate in Anonymous Speech. .................. 29 19 3. In Violation of Due Process of Law, and Despite 20 Defendants’ Continuing Protests Against the Invasions, 21 the Magistrate Judge Ruled That Defendants and Their Visitors Had “Consented” to Invasions of Privacy, Thus 22 Stripping Away Protections of the Electronic 23 Communications Privacy Act and the Pen Register Act. ... 32 24 4. In Violation of Due Process of Law, the Magistrate 25 Judge Constructed Rules That Put the Burden of 26 Proof on Defendants as to Matters Where Defendants Have Been Deprived of Discovery. ................................... 40 27 28 - i - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REVIEW OF ORDER RE SERVER LOG DATA Columbia Pictures, et al. v. Bunnell, et al. U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC 1 Page 2 C. The Magistrate’s Order Contains Unprecedented 3 Determinations That Are Contrary to Law and 4 That Should Be Reviewed. .......................................................... 45 5 1. In an Erroneous Determination, the Magistrate 6 Judge Ruled That “Server Log Data” — Records Defined by Plaintiffs Which Would Come Into Existence 7 Only If Created by Defendants Under Compulsion of the 8 Court’s Order — Constitutes “Electronically Stored 9 Information” Under a 2006 Amendment to Fed. Rule of Civil Proc. 34. .................................................................... 45 10 11 2. In an Erroneous Determination, The Magistrate Judge Disregarded International Law and Ordered Defendants to 12 Take Steps in The Netherlands That Might Violate the 13 Law of the Netherlands or Other Countries. ..................... 51 14 D. The Magistrate Judge’s Order is Clearly Erroneous in Finding, 15 as a Matter of Fact, that “Defendants Have the Ability to 16 Manipulate at Will How the Server Log Data is Routed” and That Finding is the Basis of the Magistrate Judge's Order That 17 Imposes Duties on Defendants Without Regard for the Losses, 18 Costs or Other Burdens That Defendants Must Bear. ................. 55 19 III. CONCLUSION ...................................................................................... 55 20 21 22 23 24 25 26 27 28 - ii - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REVIEW OF ORDER RE SERVER LOG DATA Columbia Pictures, et al. v. Bunnell, et al. U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC 1 TABLE OF AUTHORITIES 2 CASES 3 Adolph Coors Co. v. Wallace, 570 F. Supp. 202....................................................26, 29 4 Alexander v. FBI (D.D.C. 2000) 194 F.R.D. 305...................................................47, 48 5 Blumofe v. Pharmatrak, Inc. (In re Pharmatrak Privacy Litig.), 329 F.3d 9...............37 6 Doe v. 2theMart.com, 140 F. Supp. 2d 1088................................................................29 7 Farber v. Garber, 234 F.R.D. 186................................................................................42 8 FTC v. Netscape Communications Corp., 196 F.R.D. 559 ..............................34, 35, 36 9 Gilmore v. Ashcroft, 2004 U.S. Dist. LEXIS 4869 ......................................................40 10 Gomez v. United States, 490 U.S. 858..........................................................................16 11 In Re Application of the United States of America for an Order Authorizing The Use 12 of a Pen Register And Trap On [xxx] Internet Service Account/User Name 13 [[email protected]], 396 F. Supp. 2d 45................................................................37 14 In re Doubleclick Inc. Privacy Litigation, 154 F. Supp. 2d 497 ..................................30 15 In re United States, 416 F. Supp. 2d 13........................................................................39 16 In re United States, 460 F. Supp. 2d 448......................................................................39 17 MAI Sys. Corp. v. Peak Computer, 991 F.2d 511.........................................................50 18 National Union Elect. Corp. v. Matsushita Elec. Indust. Co., 494 F.Supp. 1257........48 19 New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090 .........................................................29 20 O’Grady v. Superior Court, 139 Cal. App. 4th 1423 ...................................................35 21 Paramount Pictures Corp. v. ReplayTV (C. D. Cal. 2002) CV 01-9358 FMC (Ex) 22 (filed May 30, 2002) 2002 WL 32151632........................................................2, 5, 47 23 Parkes v. County of San Diego, 345 F. Supp. 2d 1071 ................................................40 24 Reynaga v. Cammisa, 971 F.2d 414 .............................................................................17 25 Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468,.................................52 26 Sell v. United States, 539 U.S. 166...............................................................................18 27 Societe Internationale Pour Participations Industrielles et Commerciales v. Rogers, 28 - iii - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REVIEW OF ORDER RE SERVER LOG DATA Columbia Pictures, et al. v. Bunnell, et al. U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC 1 357 U.S. 197 211 ......................................................................................................52 2 Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 3 522.............................................................................................................................53 4 Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d....................................32 5 Theofel v. Farey-Jones, 359 F. 3d 1066 .......................................................................36 6 United States v. Councilman, 418 F.3d 67 ...................................................................37 7 United States v. Rivera-Guerrero, 377 F.3d 1064............................................17, 20, 26 8 United States v. Vetco, 691 F.2d 1281..........................................................................54 9 Vogel v. United States Office Prods. Co., 258 F.3d 509 ..............................................19 10 Wolpin v. Philip Morris, Inc., 189 F.R.D. 418 .............................................................51 11 STATUTES 12 18 U.S.C. § 2702.................................................................................................4, 33, 34 13 18 U.S.C. § 2703(c)(1)(C) ............................................................................................34 14 28 U.S.C. § 636(b)(1) .............................................................................................28, 46 15 28 U.S.C. § 636(b)(1)(A)....................................................................................9, 16, 18 16 Electronic Communications Privacy Act and 18 U.S.C. § 2701..................................32 17 Pen Register Statute, 18 U.S.C. §§ 3121-27...........................................................36, 37 18 The Wiretap Act, 18 U.S.C. §§ 2510-2522 ......................................................36, 37, 39 19 20 21 22 23 24 25 26 27 28 - iv - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REVIEW OF ORDER RE SERVER LOG DATA Columbia Pictures, et al. v. Bunnell, et al.
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