Case 2:12-cv-08333-ODW-JC Document 73-1 Filed 03/07/13 Page 1of11 Page ID #:2003
1 | ANDREW J. WAXLER, SBN 113682 BARRY Z. BRODSKY, SBN 93565 2 | WON M. PARK, SBN 194333 WAXLER #¢CARNER @BRODSKY LLP 3 | 1960 East Grand Avenue, Suite 1210 El Segundo, California 90245 4|Telephone: (310) 416-1300 Facsimile: (310) 416-1310 5 | e-mail: awaxler@wcb-law.com e-mail: rodsky@wecb-law.com 6 | e-mail: wpark(@web-law.com 7 | Specially Appearing for Respondent Tt 1: GIBBS 7 8 é UNITED STATES DISTRICT COURT i CENTRAL DISTRICT OF CALIFORNIA 11 INGENUITY 13 LLC, Case No. 2:12-CV-8333-ODW (JCx) 12 Plaintiff, [Assigned to Judge Otis D. Wright, II ] 13 VS. PROPOSED] ORDER RE BRETT 14 . GIBBS’ OBJECTIONS TO THE JOHN DOE, REPLY DECLARATION OF 15 MORGAN E. PIETZ AND Defendant. EXHIBITS THERETO AND THE 16J/_ Td) SCTRANSCRIPT OF THE DEPOSITION OF AF HOLDINGS, 17 LLC TAKEN ON FEBRUARY 19, 2013 18 [OSC Filed: August 1, 2012] i? 20 Trial date: None set 21 22 |TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: 23 Respondent Brett L. Gibbs submits the following proposed order re objections
24 | to the Reply Declaration of Morgan E. Pietz and Exhibits thereto and the Deposition 25 | Transcript of the deposition of AF Holdings LLC taken on February 19, 2013 26 || submitted in response to the Court’s February 7, 2013 Order to Show Cause.
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OBJECTIONS TO DECLARATION OF MORGAN E, PIETZ
Material Objected to: | Grounds for Objection: Ruling on Objection L Declaration of Morgan | 1. Irrelevant (FRE §§401, Sustained E. Pietz, pg. 2 § 2, as follows: | 402); Lacks Foundation Overruled I represent ISP subscribers who | and/or Personal Knowledge have been targeted by (FRE §602); Improper Ingenuity 13, LLC, through its | Opinion (FRE § 701); counsel Prenda Law, Inc. f/k/a | Speculation (FRE §602); Hansemeier PLLC (‘“Prenda”) | Argumentative; Assumes in copyright infringement cases | Facts Not In Evidence; Ingenuity 13 filed in both the | Improper Characterization Central District of California, | of Evidence. and the Northern District of California. pe Declaration of Morgan _| 2. Irrelevant (FRE §§401, Sustained E. Pietz, pg. 2 § 2, as follows: | 402). Overruled I also represent other clients in other cases brought by Prenda on behalf of other entities, sometimes along with local counsel, in other courts. 3: Declaration of Morgan | 3. Irrelevant (FRE §§401, Sustained E. Pietz, pg. 2 44, as follows: | 402); Lacks Foundation Overruled
My clients in the Prenda cases, including this case, each
received letters from their ISPs
and/or Personal Knowledge (FRE §602); Assumes Facts Not In Evidence;
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I Material Objected to: Grounds for Objection: Ruling on 2 Objection 3 |) informing them that Prenda Improper Characterization 4 || was attempting to subpoena of Evidence. 5 || their identity as part ofa 6 || lawsuit. 7H 4, Declaration of Morgan _| 4. Irrelevant (FRE §§401, Sustained 8 || E. Pietz, pg. 294, as follows: | 402); Lacks Foundation Overruled | 9 || Generally, my clients are and/or Personal Knowledge 10 || people who happen to pay the | (FRE §602); 11 || Internet bill for their Argumentative; Assumes
12 || household, not necessarily the | Facts Not In Evidence;
13 || people who actually committed | Improper Characterization 14 | the alleged infringement or of Evidence.
13 || other wrongful conduct. 161| 5. Declaration of Morgan | 5. Irrelevant (FRE §§401, “| Sustained 17 || E. Pietz, pg. 294, as follows: | 402); Lacks Foundation Overruled
18 || However, Prenda constructs its | and/or Personal Knowledge
19 || lawsuits so as to make it (FRE §602); Improper
20 || unclear what exactly is the Opinion (FRE § 701);
21 || status of my clients. Speculation (FRE §602); 22 Argumentative; Assumes 23 Facts Not In Evidence;
24 Improper Characterization 25 of Evidence.
26 |! 6. Declaration of Morgan 6. Irrelevant (FRE §§401, Sustained 271 E. Pietz, pg. 2 § 4, as follows: 40 Lacks Foundation Overruled
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Material Objected to:
Grounds for Objection:
Ruling on Objection
The complaint does not exactly come out and say that the ISP subscriber equals the John Doe defendant.
and/or Personal Knowledge (FRE §602); Improper Opinion (FRE § 701); Speculation (FRE §602); Argumentative; Assumes Facts Not In Evidence; Improper Characterization
of Evidence.
Ts Declaration of Morgan E. Pietz, pg. 2 | 4, as follows: However the requests for early discovery seeking leave to issue ISP subpoenas, generally tend to conflate ISP subscriber
with Doe defendant.
7. Irrelevant (FRE §§401, ~ | Sustained
402); Lacks Foundation and/or Personal Knowledge (FRE §602); Improper Opinion (FRE §§701; Speculation (FRE §602); Argumentative; Assumes Facts Not In Evidence; Improper Characterization
of Evidence.
Overruled
8. Declaration of Morgan E. Pietz, pg. 3 § 6, as follows: Exhibit EE - Attached as Exhibit EE hereto is a true and correct copy of the [Amended] “Motion for Withdrawal and
Substitution of Counsel” filed
8. Irrelevant (FRE §§401, 402); Lacks Foundation and/or Personal Knowledge (FRE §602); Hearsay (FRE §§801(c), 802); Speculation (FRE §602);
Improper Characterization
Sustained
Overruled
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The prior day, January 29, 2013, Mr. Gibbs had filed a different version of the same
motion (id. at ECF No. 21).
and/or Personal Knowledge (FRE §602); Hearsay (PRE §§801(c), 802); Speculation (FRE §602); Argumentative; Improper Characterization of Evidence; Improper Authentication of
Document (FRE §901).
Material Objected to: Grounds for Objection: Ruling on Objection by Mr. Gibbs in AF Holdings, | of Evidence; Improper | LLC v. Andrew Magsumnol, Authentication of | N.D. Cal. No. 3:12-cv-4221- Document (FRE §901). SC ECF No. 22, 1/30/13. 9. Declaration of Morgan | 9. Irrelevant (FRE §§401, ~ | Sustained E. Pietz, pg. 3 § 6, as follows: | 402); Lacks Foundation Overruled On page 2, Mr. Gibbs lists and/or Personal Knowledge himself as “In-House Counsel, | (FRE §602); Hearsay (FRE AF Holdings LLC”. §§801(c), 802); Speculation (FRE §602); Argumentative; Improper Characterization of Evidence. 10. Declaration of Morgan 10. Irrelevant (FRE §§401, | Sustained E. Pietz, pg. 3 § 6, as follows: | 402); Lacks Foundation Overruled
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This pleading states on page 5
and/or Personal Knowledge
Material Objected to: Grounds for Objection: Ruling on Objection 11. Declaration of Morgan 11. Irrelevant (FRE §§401, | Sustained E. Pietz, pg. 3 § 6, as follows: | 402); Lacks Foundation Overruled The only apparent difference and/or Personal Knowledge between the two substitution (FRE §602); Hearsay (FRE motions was the addition of the | §§801(c), 802); line where Mr. Gibbs signed Speculation (FRE §602); for AF Holdings, as in house Argumentative; Improper counsel, in the amended Characterization of motion. Evidence.
'12. Declaration of Morgan 12. Irrelevant (FRE §§401, | Sustained E. Pietz, pg. 3 § 7, as follows: | 402); Lacks Foundation Overruled Exhibit FF - Attached as and/or Personal Knowledge Exhibit FF hereto is a true and | (FRE §602); Hearsay (FRE correct copy of the pleadings §§801(c), 802); that Prenda’s local counsel in | Speculation (FRE §602);
St. Clair County, Illinois, Improper Characterization
Kevin Hoerner, filed in on or | of Evidence; Improper
around February 13, 2013, in Authentication of
Guava, LLC v. Comcast Cable | Document (FRE §901). Communication, LLC, Circuit
Court of St. Clair County
Illinois, No. 12-MR-417.
13. Declaration of Morgan 13. Irrelevant (FRE §§401, | Sustained E. Pietz, pg. 3 § 7, as follows: | 402); Lacks Foundation Overruled
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1 Material Objected to: Grounds for Objection: Ruling on Objection
2 3 || that the name of the person (FRE §602); Hearsay (FRE 4 | who supposedly verified the §§801(c), 802);
petition in that action is “Alan | Speculation (FRE §602);
Lo)
6 || Mony.” Improper Characterization 7 of Evidence. 81/14. Declaration of Morgan 14. Irrelevant (FRE §§401, | Sustained | 9|| E. Pietz, pg. 3 § 7, as follows: | 402); Hearsay (FRE Overruled | 10 || On February 14, 2013, among | §§801(c), 802); 11 || other questions, I asked Argumentative; Improper 12 || Prenda’s lawyers to confirm Characterization of 13 || the spelling of the purported Evidence.
14 |) client who had signed the
15 || verification, and Mr. Hoerner 16 || responded that day (this was 17 || the entire response); “The
18 || issues have already been
19 |) briefed. See you in court.”
201} 15. Declaration of Morgan | 15. Irrelevant (FRE §§401, | Sustained 21 | E. Pietz, pg. 3 § 8, as follows: | 402); Lacks Foundation Overruled 22 || Exhibit GG - Attached as and/or Personal Knowledge 23 || Exhibit GG hereto is a true and | (FRE §602); Hearsay (FRE 24 || correct copy of the amended §§801(c), 802);
25 || verification filed by Prenda on | Speculation (FRE §602); 26 || February 21, 2013 in Guava St. | Argumentative; Assumes
27 || Clair County action, Facts Not In Evidence;
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follows: Attached as Exhibit I is a true and correct copy of two Google Earth maps that I prepared. The first map shows the Wagar residence located at 1411 Paseo Jacardanda, Santa Maria, California 93458. (ECF
and/or Personal Knowledge (FRE §602); Hearsay (FRE §§801(c), 802); Speculation (FRE §602); Assumes Facts Not In Evidence; Improper
Characterization of
Material Objected to: Grounds for Objection: Ruling on Objection purportedly executed by Improper Characterization someone spelling their name of Evidence; Improper “Alan Mooney.” Authentication of Document (FRE §901). 16. Declaration of Morgan | 16. Irrelevant (FRE §§401, | Sustained E. Pietz, pg. 3 99, as follows: | 402); Lacks Foundation Overruled Exhibit HH - Attached as and/or Personal Knowledge Exhibit HH hereto is a true and | (FRE §602); Hearsay (FRE correct copy of an explanatory | §§801(c), 802); organization diagram I am Speculation (FRE §602); prepared for Prenda, etc. lam | Argumentative; Assumes prepared to explain this Facts Not In Evidence; document at the hearing and Improper Characterization can provide documentary of Evidence; Improper support for the connections. Authentication of Document (FRE §901). 117. Declaration of Morgan 17. Irrelevant (FRE §§401, [ Sustained E. Pietz, pgs. 3-4 § 10, as 402); Lacks Foundation Overruled
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l Material Objected to: | Grounds for Objection: Ruling on 2 Objection 3 || No. 50 § 29). The second map | Evidence; Improper 4 || shows the Denton residence Authentication of 5 || located 635 S. Vanderwell Document (FRE §901). 6 || Avenue, West Covina, 7 || California 91790. 8/18. Declaration of Morgan 18. Irrelevant (FRE §§401, | Sustained 9} E. Pietz, pgs. 3-4 § 10, as 402); Lacks Foundation Overruled 10 || follows: In order to illustrate | and/or Personal Knowledge 11 || the range of a WiFi network, (FRE §602); Hearsay (FRE 12 || both maps show three circles | §§801(c), 802); 13 || around the residence, each with | Speculation (FRE §602); 14 || different radii: a 100 ft. circle | Argumentative; Assumes 15 || (green), a 300 ft. circle Facts Not In Evidence; 16 |) (yellow), and a 500 ft. circle Improper Characterization 17 || (red). of Evidence. 18]/ 19. Declaration of Morgan 19. Irrelevant (FRE §§401, | Sustained See
19} E, Pietz, pg. 4 § 11, as follows: Overruled
20 || Exhibit JJ - Attached as Exhibit
402); Lacks Foundation and/or Personal Knowledge (FRE §602); Hearsay (FRE §§801(c), 802); Speculation (FRE $602);
21 || JJ hereto is a true and correct
22 || copy of the manual, chapter 4, 23 || for a wireless router owned by 24 |) a client of mine in a prior, Assumes Facts Not In
25 || unrelated case. Evidence; Improper
26 Characterization of 27 Evidence; Improper 28
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The router at issue there was about ten years old, and
specified a range of between
is simply an example of the kind of signal range available
on a not-state-of-the-art router.
300-500 ft., per page 4-2. This
and/or Personal Knowledge (FRE §602); Hearsay (FRE §§801(c), 802); Speculation (FRE §602); Argumentative; Assumes
Facts Not In Evidence;
Improper Characterization of Evidence; Improper Authentication of
Document (FRE §901).
Material Objected to: Grounds for Objection: Ruling on Objection Authentication of Document (FRE §901). 20. Declaration of Morgan 120. Irrelevant (FRE §§401, | Sustained E. Pietz, pg. 4 11, as follows: | 402); Lacks Foundation Overruled
OBJECTIONS TO DEPOSITION TRANSCRIPT OF AF HOLDINGS LLC TAKEN ON FEBRUARY 19, 2013
Material Objected to:
Grounds for Objection:
Ruling on Objection
1. Deposition Transcript of the Deposition of AF Holdings LLC’s designated witness taken on February
19, 2013 and lodged with the
Court on March 7 and 8, 2013.
1. Irrelevant (FRE §§401, 402); Lacks Foundation and/or Personal Knowledge (FRE §602); Hearsay (FRE §§801(c), 802); Speculation (FRE §602);
Argumentative; Assumes
Sustained
Overruled
10
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l Material Objected to: Grounds for Objection: Ruling on Objection ]
2 Facts Not In Evidence;
3 Improper Characterization
4 of Evidence; Improper
5 Authentication of
6 | Document (FRE §901).
7
8) DATED: By:
9 Honorable Otis D. Wright, I 10 Judge of the United States District Court 1]
12 13 14 15 16 17 18 19 20 21 22 22 24 ao 26 e8) 28 11