Free Statement of Non-Opposition - District Court of California - California

Case 3:08-cv-00824-JSW

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MARTIN D. SINGER, ESQ. (BAR NO. 78166) WILLIAM J. BRIGGS, II, ESQ. (BAR NO. 144717) EVAN N. SPIEGEL, ESQ. (BAR NO. 198071) LAVELY & SINGER PROFESSIONAL CORPORATION 2049 Century Park East, Suite 2400 Los Angeles, California 90067-2906 Telephone: (310) 556-3501 Facsimile: (310) 556-3615 E-mail: [email protected] E-mail: [email protected] Attorneys for Plaintiffs BANK JULIUS BAER & CO. LTD and JULIUS BAER BANK AND TRUST CO. LTD UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) Plaintiffs, ) ) v. ) WIKILEAKS, an entity of unknown ) form, WIKILEAKS.ORG, an entity ) of unknown form; DYNADOT, ) LLC, a California limited liability ) corporation, and DOES 1 through ) 10, inclusive, ) ) Defendants. ) ) ) CASE NO. CV08-0824 JSW [Hon. Jeffrey S. White; CRTM 2] PLAINTIFFS' NOTICE OF NON-OPPOSITION BY DEFENDANTS WIKILEAKS AND WIKILEAKS.ORG TO THE OSC RE PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION [Filed Concurrently With: Declaration of Evan Spiegel in Support Thereof] DATE: FEBRUARY 29, 2008 TIME: 9:00 a.m. CTRM: 2, 17th FL

BANK JULIUS BAER & CO. LTD, a Swiss entity; and JULIUS 13 BAER BANK AND TRUST CO. LTD, a Cayman Islands entity,
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TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that there has been no written opposition filed by Defendants Wikileaks and Wikileaks.org (collectively, the "Wikileaks Defendants") to Plaintiffs Bank Julius Baer & Co. Ltd's ("BJB") and Julius Baer Bank and Trust Co. Ltd's ("JBBT") (collectively,"Plaintiffs") Application for TRO and Preliminary
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Injunction (the "Application") and the Court's Temporary Restraining Order and Order to Show Cause ("OSC") as to why a Preliminary Injunction should not issue against Defendants (the "TRO and OSC"), which is set for hearing on February 29, 2008, at 9:00 a.m. before this Court. This matter relates primarily to the protection and enforcement of privacy and property rights. The spread of stolen private bank records, account numbers and information, tax documents and other protected consumer records, significantly harms privacy rights of every single individual in the United States and world-wide, and could have a harmful impact on confidence in the banking industry as a whole. The leak of confidential bank records, including altered and semi-forged documents, by the anonymous Wikileaks Defendants, unchecked, will likely have a devastating impact on financial institutions and the authorities ability to combat credit and identity fraud.1 See the accompanying Declaration of Evan N. Spiegel ("Spiegel Decl."), ¶3. The Wikileaks Defendants, through various unidentified individuals, are the owners, operators and/or registrants of a world wide web website operating under a number of now "mirrored" or duplicative "wikileaks" and other domain names (the "Website"), upon which they post stolen private bank records, account numbers and information, tax documents and other protected consumer records. The Wikileaks Defendants' actions are in violation of a number of foreign and US banking and privacy laws, and violate inalienable privacy rights established under the U.S. and California Constitutions. 2008, the Court issued the TRO and OSC. On February 14, 2008, Plaintiffs served a copy of the TRO and OSC on the Wikileaks Defendants via e-mail, per the Court's prior order, at four separate e-mail
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Accordingly, based on the facts and

arguments set forth in the Plaintiffs' Complaint and Application, on February 14,

Contrary to the Wikileaks Defendants various false statements in their attempts to spin the press and create a manipulated public perception, this matter does not relate to purported First Amendment rights but to the protection of both 28 Constitutional and statutory privacy rights of the Plaintiffs, and of every person.
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addresses.2 A Proof of Service has been filed with the Court. (Spiegel Decl., ¶4; and see Proofs of Service filed with this Court, Docket Numbers 50). After service of the TRO and OSC, the Wikileaks Defendants confirmed and acknowledged in writing on their back-up mirrored Websites their receipt of and knowledge of the Court's Orders. (Id., ¶5, Exhs. "A", "B" and "C"). Although their "counsel" Julie Turner represented to the Court that Wikileaks was without counsel and was seeking new counsel, Wikileaks has in fact stated on its Website that "Wikileaks has six pro-bono attorney's in S.F on roster to deal with a legal assault ..." (Id., Exh. "A"). Despite notice of the TRO and their written acknowledgment of the Court's Orders, the Wikileaks Defendants' owners and operators have continued to openly display, post and disseminate the JB Property on their Wikileaks Websites. Under their veil of anonymity, the Wikileaks Defendants continue to operate and have stated their blatant and open contempt for the Court, the U.S. legal system and privacy rights of all persons everywhere.3 (Id., ¶6). The TRO and OSC set Wednesday, February 20, 2008 at 12:00 p.m. as the deadline for Defendants and anyone else to file and serve any opposition to the issuance of the Preliminary Injunction. As of Friday, February 22, 2008 at approximately 1:30 p.m., no opposition papers to the Application and the TRO and OSC have been filed or served by the Wikileaks Defendants, or any third-parties, to Plaintiffs (Spiegel Decl., ¶7). ///

The e-mail addresses included two of the wikileaks.org e-mail addresses (believed transmitted prior to removal of the removal of the related domain name 24 DNS services), but regardless, also to the personal e-mail address for Julian Assange, a joint founder of Wikileaks and the person represented by Julie Turner 25 to the Court to be the direct contact person for Wikileaks, and to the personal email address for a listed officer of Wikileaks. (Spiegel Decl., ¶4).
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Despite the TRO, Wikileaks has stated that they will "keep on publishing, in-fact, given the level of suppression involved in this case, Wikileaks will step up publication of documents ...", that "Backups are on-line" and that "Wikileaks 28 has many backup sites ... which remain active." (Id. ¶5, Exh. "A").
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Based on the foregoing, Plaintiffs requests that the Wikileaks Defendants and any other persons be precluded from offering oral argument at the hearing on the Application and TRO and OSC re issuance of the Preliminary Injunction, and that the Court find that the failure of the Wikileaks Defendants to file any opposition papers creates an inference that the Application is meritorious. Gwaduri v. I.N.S., 362 F.3d 1144, 1146 (9th Cir. 2004) (Where a party fails to file timely opposition to a motion, it is "well-within" the court's discretion to determine that such failure is "tantamount to a concession that its position in the litigation was not substantially justified."); Weil v. Seltzer, 873 F.2d 1453, 1459 (D.C. Cir. 1989) (Holding that a party who fails to file an opposition to a motion is deemed to have waived opposition and may not be heard to complain on appeal). Wherefore, Plaintiffs respectfully request that the Application and TRO and OSC re issuance of the Preliminary Injunction be granted in its entirety and the Preliminary Injunction issue. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that this Court issue a Preliminary Injunction in the form set forth in the Amended [Proposed] Preliminary Injunction submitted herewith, and for such other alternative and further relief as the Court may deem to be just and appropriate. Respectfully submitted, DATED: February 22, 2008 LAVELY & SINGER PROFESSIONAL CORPORATION MARTIN D. SINGER WILLIAM J. BRIGGS, II EVAN N. SPIEGEL /s/ William J. Briggs, II By:________________________________ WILLIAM J. BRIGGS, II Attorneys for Plaintiffs BANK JULIUS BAER & CO. LTD and JULIUS BAER BANK AND TRUST CO. LTD

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