Free Motion for Leave to File - District Court of Arizona - Arizona

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MESCHKOW & GRESHAM, P.L.C.

Jordan M. Meschkow (AZ Bar No. 007454) Lowell W. Gresham (AZ Bar No. 009702) 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 (602) 274-6996 (602) 274-6970 (facsimile) Attorneys for Plaintiff

GILES LEGAL, P.L.C.

Nancy R. Giles (AZ Bar No. 020163) 733 West Willetta Street Phoenix, Arizona 85007 (602) 252-1788 Attorney for Plaintiff UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA DAN COOGAN, doing business as COOGAN PHOTOGRAPHIC, Plaintiff, v. AVNET, INC., et al. Defendants. Case No.: CV-04-0621 PHX SRB

PLAINTIFF DAN COOGAN'S MOTION FOR LEAVE TO FILE SURREPLY ON "AVNET'S MOTION TO WITHDRAW ADMISSIONS AND TO ENTER DENIALS AS TO REQUEST TO ADMIT NOS. 15 AND 43 OF AVNET'S RESPONSES TO PLAINTIFF'S THIRD REQUESTS FOR ADMISSION" BASED ON NEW EVIDENCE. (Oral Argument Requested)

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Plaintiff Dan Coogan respectfully requests leave to file a Surreply on Avnet's Motion to Withdraw Admissions and to Enter Denials as to Request to Admit Nos. 15 and 43 of Avnet's Responses to Plaintiff's Third Requests for

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Admission. This Motion for Leave is based on new evidence and information provided to Plaintiff, only recently by defense counsel. This new information was revealed weeks after Plaintiff's Response and Defendant's Reply were due. In the instant Motion, Defendant stated "Avnet undertook a review of its Answers to Interrogatory No. 4 and the facts in support of those answers" and "To the extent that new or different information was discovered, Avnet supplied the information." Defendants failed to reveal what was reviewed. Motion at 2:1-4. Accordingly, Plaintiff was denied an opportunity to respond to what Avnet used in support of its Motion. necessitating a Surreply. The new evidence and information provided to Plaintiff is this: Avnet has now revealed the basis upon which its "new" review was conducted. That basis was neither new nor different. The information was nothing more than the The Defendant's Reply also failed to mention this,

October 17, 2005 letter and disclosure. The same person, who was responsible for making a new web page in 2004, was also responsible for the data provided October 17, 2005. See J. Green 19 May 2006 letter, attached as Exhibit A, which states: QUESTION 1 "Avnet.com - This photograph was used between January 24, 2004 and February 25, 2004 on the homepage of Avnet.com for public relations. Between August 28, 2002 and February 25, 2004 the picture of Vallee appeared on a secondary page of the website for public relations." The information for this response comes from the log files provided to you on October 17, 2005. In response to your letter, in January 2004, Bryan Carter was asked to add a "What's New" item on the homepage of Avnet.com. He changed the size of the photograph to fit the space provided using a development page not viewable by the public. The development page became the new home page with the Vallee photograph until removed on February 25, 2004. The above paragraph indicates this as the basis in Avnet's review.

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Yet, Bryan Carter, Avnet's Multimedia Applications Specialist, was actively involved in making and supplying the log files back on October 17, 2005. See C. Houston letter, Exhibit B, at 3. Moreover, both Carter and Bob Hackett, Avnet's Director of Multimedia Services were actively involved in the investigation into image use history on Avnet websites back in October 2005, because they ...combed through the Amended Complaint and the various Requests for Admissions to determine which of the images contained therein were actually used by Avnet. Then, they began searching the servers to find the use/download history of each image. Unfortunately, because of the way the data was stored, Avnet does not have records of who posted each image or who viewed each image (IP addresses for the viewers are available but, obviously, do not provide reliable information regarding the identity of the viewer). It was only two weeks ago, when, on May 19, 2006, Defendants suddenly revealed that such claimed "new or different information" was not new or different at all because it involves Bryan Carter and log files which he was active in preparing to send to Plaintiff on October 17, 2005. See Exhibit B, at 3. Indeed, Defendants revealed that the updated Interrogatory replacement answer to Request to Admit Nos. 15 and 43 of Avnet's Responses to Plaintiff's Third Requests for Admission, was based on log files provided in October 17, 2005. See Exhibit C at 3, and Exhibit B, answer to Q1, quoted above. Because this May 19, 2006 new information to Plaintiff reveals that Defendants' "new information" for the basis of Defendants' Motion to Withdraw Admissions... is not new, Plaintiff should be allowed at least one opportunity to respond to Defendants' newly-revealed facts and reasoning. See Beaird v. Seagate Tech., 145 F.3d 1159, 1164-65 (10th Cir. 1998) (citing Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 410 (1st Cir. 1985)) ("... when a moving party advances in a reply new reasons and evidence in support of its motion ..., the nonmoving party should be granted an opportunity to respond.").

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A Proposed Surreply is attached. Plaintiff respectfully requests that the Court allow it to be filed.

Respectfully submitted this 2nd day of June, 2006, s/Jordan M. Meschkow Jordan M. Meschkow MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014 ATTORNEYS FOR PLAINTIFF

Nancy R. Giles GILES LEGAL, P.L.C. 733 West Willetta Street Phoenix, Arizona 85007 ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of June, 2006 I electronically transmitted the attached document and its Exhibits to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Jordan Green Lawrence Palles FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants and Nancy R. Giles Giles Legal, P.L.C. 733 West Willetta Street Phoenix, Arizona 85007-1920 Attorneys for Plaintiff

s/Jordan M. Meschkow

Case 2:04-cv-00621-SRB 8050-0131-216-1

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