Free Motion to Compel - District Court of California - California

Case 5:08-mc-80117-JW

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BROWNSTEIN HYATT FARBER SCHRECK, LLP Eric Berg (State Bar No. 134621) [email protected] 21 East Carrillo Street Santa Barbara, CA 93101 Telephone: (805) 963-7000 Facsimile: (805) 965-4333 Attorneys for Plaintiffs MADISON CAPITAL MANAGEMENT, LLC, and MADISON LIQUIDITY INVESTORS, LLC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MADISON CAPITAL MANAGEMENT, LLC, a Foreign Limited Liability Company; MADISON LIQUIDITY INVESTORS, LLC, a Foreign Limited Liability Company, Plaintiffs, v. YAHOO! INC., a Delaware Corporation, Defendant. Case No. 5:08-mc-80117-JW [Honorable James Ware] NOTICE OF MOTION AND MOTION TO COMPEL COMPLIANCE WITH SUBPOENA; MEMORANDUM OF POINTS AND AUTHORITIES; REQUEST FOR ATTORNEY FEES; DECLARATION OF PETER J. KORNEFFEL, JR.; [PROPOSED] ORDER Date: September 22, 2008 Time: 9:00 a.m. Courtroom: 8

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PLEASE TAKE NOTICE that on September 22, 2008, at 9:00 a.m., or as soon thereafter as the matter may be heard by the above-entitled Court, located at 280 South 1st Street, San Jose, California, Plaintiffs Madison Capital Management, LLC ( Madison ), a Nevada Limited Liability Company, and Madison Liquidity Investors, LLC ( Madison Liquidity ), a Delaware limited liability company, hereby move this Court, pursuant to Fed. R. Civ. P. 45, to compel Yahoo! Inc. ( Yahoo ), a Delaware corporation, to comply with the subpoena issued by this Court and produce all information regarding the registrant for a fraudulent website (the Registrant ), which is hosted by Yahoo. /// ///
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This motion is based on this notice; the Memorandum of Points and Authorities in support of this motion and on any oral argument presented to or requested by the court on hearing of this matter. Dated: June 18, 2008 BROWNSTEIN HYATT FARBER SCHRECK, LLP

By:

/S/ ERIC BERG Attorneys for Plaintiffs MADISON CAPITAL MANAGEMENT, LLC, AND MADISON LIQUIDITY INVESTORS, LLC

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION

Madison Capital Management, LLC ( Madison ), a Nevada Limited Liability Company, and Madison Liquidity Investors, LLC ( Madison Liquidity ), a Delaware limited liability company, hereby move this Court, pursuant to Fed. R. Civ. P. 45, to compel Yahoo! Inc. ( Yahoo ), a Delaware corporation, to comply with the subpoena issued by this Court and produce all information regarding the registrant for a fraudulent website (the Registrant ), which is hosted by Yahoo. Madison served Yahoo with the subpoena on June 2, 2008. The subpoena required Yahoo to provide Madison information regarding the Registrant by June 10, 2008. Madison has not yet received such information regarding the Registrant from Yahoo and Yahoo s failure to comply with a validly issued subpoena has caused Madison to incur additional legal expenses. II. CERTIFICATE OF CONSULTATION

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Pursuant to Fed. R. Civ. P. 45, Fed. R. Civ. P. 37, and Local Rule 37-1, counsel for Madison certifies that it conferred in good faith with Yahoo s counsel on June 12, 2008, in an effort to secure Yahoo s compliance with its obligations under the Court s subpoena. Yahoo s counsel stated that it would heed its own internal policy rather than the Court s subpoena and delay providing the information regarding the Registrant until notice had been provided to the Registrant, and the Registrant had received proper time to seek a protective order regarding the disclosure of such information. Filed concurrently with the Motion is the Declaration of Peter J. Korneffel, Jr. outlining Plaintiffs efforts to obtain a non-judicial resolution of this dispute. III. 1. FACTS

Madison is a professional investment and financial service company with a long

standing reputation in the financial services market. Madison markets its services via its website, which is located at the domain name, www.madisoncap.com (the Madison Website ). The Madison Website describes Madison's history, business, and philosophy. 2. Madison Liquidity advertises its services and posts its employment opportunities at

its website, which is located at the domain name, www.madisonliquidity.com (the Madison

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Liquidity Website ). The Madison Liquidity Website describes Madison s history, business, and philosophy. 3. Madison is the current owner of the entire right, title and interest in the materials

located on the Madison Website and the Madison Liquidity Website. 4. As part of their suite of internet services, Yahoo offers web hosting services for

individuals or entities who desire to maintain a website. 5. Upon information and belief, beginning some time in May of 2008, Yahoo

commenced hosting the website located at the domain name, www.madisonliq.com (the Deceptive Site ). The Deceptive Site and the materials thereon purported to be owned in the name of Madison Liquidity Investors, LLC, something that is not true. In reality, the Deceptive Site does not represent a real company or business and used Madison Liquidity s name, likeness, information, and rights. The Deceptive Site was specifically designed to deceive visitors into believing that the website represents the legitimate Madison entities, including Madison Liquidity, and to deceive visitors into providing personal information for illicit purposes. 6. Upon investigation, Madison learned that the Deceptive Site was part of an ongoing

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scheme by the Registrant to knock-off legitimate websites to obtain improperly personal information from visitors to the website. The Registrant of the Deceptive site has other similar sites that squat on other companies' trade information and seek to deceive visitors into providing personal information. 7. On May 14, 2008, Madison notified Yahoo of the Registrant s scheme and sent a

Notice of Claimed Infringement with respect to the Deceptive Site. A copy of the Notice is attached as Exhibit A. Recognizing that the Deceptive Site was fraudulent, Yahoo, on May 22, 2008, shut down the Deceptive Site. 8. Due to the serious nature of this conduct, Madison has endeavored to locate the

parties responsible for the Deceptive Site so that it can notify the proper authorities and take legal action. To be successful, however, in locating the Registrant, speed is important before the Registrant disappears forever. Accordingly, on May 30, 2008, the U.S. District Court for the Northern District of California issued a subpoena to Yahoo (the Subpoena ) on behalf of Madison. 2
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A copy of the Subpoena is attached hereto as Exhibit B. The Subpoena required Yahoo to produce all information sufficient to identify, locate and contact the Registrant and/or owner of the Deceptive Site by June 10, 2008. The Subpoena was served on Yahoo on June 2, 2008. 9. On June 12, 2008, two days after the Registrant information was due and owing,

counsel for Madison contacted counsel for Yahoo. Although Yahoo recognizes that the Deceptive Site was fraudulent, Yahoo s counsel informed counsel for Madison that the information had not been provided by the June 10, 2008 deadline set forth in the Subpoena because of Yahoo s undisclosed internal policy, which purportedly requires the company to provide its registrants 15 days notice to seek a protective order regarding the disclosure of their information. Yahoo s counsel stated that Yahoo would not comply with the Subpoena and provide the Registrant information until the 15-day notice period had passed. A copy of Yahoo s June 13, 2008 email is attached as Exhibit C. IV. ARGUMENT

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Yahoo has elected to comply with its own internal policy rather than Rule 45 of the Federal Rules of Civil Procedure. The subpoena is valid. It was properly issued by the Court and seeks discoverable information about the identity and location of the Registrant so that Madison can protect its rights. Further, the Subpoena's requirements are clear: Yahoo is to provide, Any and all documents and information sufficient to identify, locate and contact the Registrant and/or owner of the website located at the domain name, www.madisonliq.com as described in the attached Notice of Claimed Infringement of www.madisonliq.com (Ref. No. KMM89903547V15454L0KM), including, but not limited to, correspondence, e-mails, proposals, contracts, invoices and/or statements. See Exhibit B. Yahoo did not object or respond to the subpoena by the June 10 return date, but instead claimed, after the fact, that it had not complied with the subpoena due to its own internal policy. When asked about these policies, Yahoo refused to provide Madison a copy of the policies. Yahoo s objections are not timely or proper. Under Rule 45, Yahoo was obligated to submit any written objections before the subpoena s return date. Yahoo s letter came three days after the response was due, and only after Madison tried to confer with Yahoo concerning its failure to 3
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respond to the subpoena. Moreover, Yahoo s undisclosed policy does not trump the requirements of Rule 45. Indeed, the Registrant has been violating Madison's rights, and has no legitimate right of privacy concerning its identity and location. Filing this Motion has become necessary because simply complying with the subpoena at some uncertain date in the future results in severe prejudice to Plaintiff. Plaintiff s ability to protect its website diminishes with each day Yahoo remains in violation of the Subpoena. Plaintiff intends to fully prosecute the offending party for its fraudulent website. Plaintiff does not know who that party is thus the need for the Subpoena. The risk that the offending party will not be able to be located or otherwise disappear increases with each passing day of noncompliance. Court intervention is required to enforce immediate compliance because the timing of compliance is every bit as critical as the contents of the information requested. If Yahoo would simply commit to a date certain within which to comply with the Subpoena, this Motion would not be necessary. However, Yahoo either cannot or will not commit to a compliance date, despite the fact that they are in violation of terms of the subpoena by failing to timely comply. It is well-established that courts may compel, and in some cases, sanction parties for failing to comply with the requirements set forth in a subpoena. According to Rule 45(e), [f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. Fed.R.Civ.P. 45(e). The Court has the power under this rule to impose contempt simply on the basis of failure to comply with a subpoena. Diamond v. Simon, 1994 WL 10622, at *1 (S.D.N.Y. Jan. 10, 1994); Daval Steel Products v. M/V Fakredine, 951 F.2d 1357, 1364 (2d Cir. 1991). Yahoo has no legitimate explanation for failing to respond to the duly issued and served subpoena. The Deceptive Site is illegal and the Registrant of this site is conducting wrongful acts. Madison is entitled to quickly discover the information about the Registrant and the Deceptive Site so that it can protect its rights and prevent further wrongful conduct by these individuals. Yahoo should not be allowed to impair Madison s right to discover this information, and should be ordered to provide Madison the Registrant information immediately. In addition, Madison should be entitled to reimbursement of all legal fees and costs incurred in connection with this motion which 4
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is necessary solely due to Yahoo s failure to comply with a validly issued subpoena. V. CONCLUSION

For the reasons stated herein, Madison respectfully requests that this Court enter an order compelling Yahoo to immediately produce all information related to the Registrant and award Madison its attorneys fees and costs in connection with this motion. Dated: June 18, 2008 BROWNSTEIN HYATT FARBER SCHRECK, LLP

By:

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/S/ ERIC BERG Attorneys for Plaintiffs MADISON CAPTIAL MANAGEMENT, LLC, AND MADISON LIQUIDITY INVESTORS, LLC

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PROOF OF SERVICE BY MAIL I am over the age of eighteen years and not a party to this action. My business address is 21 East Carrillo Street, Santa Barbara, California 93101. I am readily familiar with this firm s practice for collection and processing of correspondence for mailing with the United States Postal Service. On June 18, 2008, I placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document(s): MOTION TO COMPEL COMPLIANCE WITH SUBPOENA AND U. S. DISTRICT COURT NORTHERN CALIFORNIA ECF REGISTRATION INFORMATION HANDOUT in a sealed envelope, postage fully paid, addressed as follows: Denelle Dixon-Thayer Senior Legal Director Yahoo! Inc. 701 First Avenue Sunnyvale, CA 94089

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Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service on this date. I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on June 18, 2008, at Santa Barbara, California.

Melissa A. Eldridge

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BROWNSTEIN HYATT FARBER SCHRECK, LLP Eric Berg (State Bar No. 134621) [email protected] 21 East Carrillo Street Santa Barbara, CA 93101 Telephone: (805) 963-7000 Facsimile: (805) 965-4333 Attorneys for Plaintiffs MADISON CAPITAL MANAGEMENT, LLC, and MADISON LIQUIDITY INVESTORS, LLC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MADISON CAPITAL MANAGEMENT, LLC, a Foreign Limited Liability Company; MADISON LIQUIDITY INVESTORS, LLC, a Foreign Limited Liability Company, Plaintiffs, v. YAHOO! INC., a Delaware Corporation, Defendant. Date: September 22, 2008 Time: 9:00 a.m. Courtroom: 8 Case No. 5:08-mc-80117-JW [Honorable James Ware] DECLARATION OF PETER J. KORNEFFEL, JR. IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

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I, PETER J. KORNEFFEL, JR. declare pursuant to Civil L. R. 7-5 as follows: 1. I am an attorney licensed to practice law before the courts of the State of Colorado. I

am a shareholder with the law firm of Brownstein Hyatt Farber Schreck, LLP, counsel of record for Plaintiffs, MADISON CAPITAL MANAGEMENT, LLC, and MADISON LIQUIDITY INVESTORS, LLC, in the above-entitled action. I am actively involved with the day to day work in the above-entitled case. I have personal knowledge of the following and, if called as a witness, could and would testify competently to the following. /// /// ///
SB 470201 v1:000009.0189

DECLARATION OF PETER J. KORNEFFEL, JR. IN SUPPORT OF MOTION TO COMPEL 5:08-MC-80117-JW

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2.

I am making this Declaration in support of Plaintiffs Motion to Compel Compliance

With Subpoena, filed concurrently with this Declaration. I am also making this Declaration in support of the meet and confer requirements set forth in Fed. R. Civ.P. 45, Fed, R. Civ. P. 37, and Local Rule 37-1. 3. On June 12, 2008, two days after compliance with the Subpoena was due, I contacted

counsel for Yahoo to inquire as to the status of compliance. I had yet to receive either any Objection to or compliance with the subpoena on this date. Counsel for Yahoo advised that compliance had not occurred because Yahoo had an internal policy which purportedly requires the company to provide its registrants with 15 days notice to seek a protective order regarding the disclosure of their information. 4. I asked counsel for Yahoo for a written copy of this internal policy. It was not

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provided to me. 5. I further asked counsel for Yahoo as to what date they would be in a position to

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voluntarily comply with the Subpoena. Counsel for Yahoo refused to provide me with such a date. 6. Attached as Exhibit C to Plaintiffs Motion to Compel is a copy of Yahoo s June 13,

2008 e-mail response to my office s request for compliance with the Subpoena. While the response indicates that Yahoo fully intends to respond to the subpoena, it again confirms in writing that it cannot commit to a date certain by which it will do so. 7. Filing this Motion has become necessary because simply complying with the

subpoena at some uncertain date in the future results in severe prejudice to Plaintiff. Plaintiff s ability to protect its website diminishes with each day Yahoo remains in violation of the Subpoena. Plaintiff intends to fully prosecute the offending party for its fraudulent website. Plaintiff does not know who that party is thus the need for the Subpoena. The risk that the offending party will not be able to be located or otherwise disappear increases with each passing day of noncompliance. 8. Court intervention is required to enforce immediate compliance because the timing

of compliance is every bit as critical as the contents of the information requested. If Yahoo would simply commit to a date certain within which to comply with the Subpoena, this Motion would not be necessary. However, Yahoo either cannot or will not commit to a compliance date, despite the SB 470201 v1:000009.0189 2
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fact that they are in violation of terms of the subpoena by failing to timely comply. I declare under penalty of perjury under the laws of the United State of America that the foregoing is true and correct DATED: June 18, 2008 ____________________________ PETER J. KORNEFFEL, JR.

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PROOF OF SERVICE BY MAIL I am over the age of eighteen years and not a party to this action. My business address is 21 East Carrillo Street, Santa Barbara, California 93101. I am readily familiar with this firm s practice for collection and processing of correspondence for mailing with the United States Postal Service. On June 18, 2008, I placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document(s): DECLARATION OF PETER J. KORNEFFEL, JR. IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL COMPLIANCE WITH SUBPOENA in a sealed envelope, postage fully paid, addressed as follows: Denelle Dixon-Thayer Senior Legal Director Yahoo! Inc. 701 First Avenue Sunnyvale, CA 94089

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SB 470201 v1:000009.0189

Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service on this date. I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on June 18, 2008, at Santa Barbara, California.

Melissa A. Eldridge

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BROWNSTEIN HYATT FAR BER SCHRECK, LLP

BROWNSTEIN HYATT FARBER SCHRECK, LLP Eric Berg (State Bar No. 134621) [email protected] 21 East Carrillo Street Santa Barbara, CA 93101 Telephone: (805) 963-7000 Facsimile: (805) 965-4333 Attorneys for Plaintiffs MADISON CAPITAL MANAGEMENT, LLC, and MADISON LIQUIDITY INVESTORS, LLC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MADISON CAPITAL MANAGEMENT, LLC, a Foreign Limited Liability Company; MADISON LIQUIDITY INVESTORS, LLC, a Foreign Limited Liability Company, Plaintiffs, v. YAHOO! INC., a Delaware Corporation, Defendant. Case No. 5:08-mc-80117-JW [Honorable James Ware] [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION TO COMPEL COMPLIANCE WITH SUBPOENA Date: September 22, 2008 Time: 9:00 a.m. Courtroom: 8

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21 East Carrillo Street Santa Barbara, CA 93101

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Plaintiffs MADISON CAPITAL MANAGEMENT, LLC, and MADISON LIQUIDITY INVESTORS, LLC s Motion to Compel Compliance with Subpoena , came on for hearing before this Court on September 22, 2008, at 9:00 a.m., before the Honorable James Ware, United States District Court Judge, in Courtroom 8 of the United States District Court, Northern District, located at 280 South 1st Street, San Jose, California. IT IS HEREBY ORDERED that Defendant Yahoo! Inc. must immediately provide to Plaintiffs MADISON CAPITAL MANAGEMENT, LLC, and MADISON LIQUIDITY INVESTORS, LLC the information sought in the Court s subpoena, which was served on Yahoo! Inc. on June 2, 2008, namely: any and all documents and information sufficient to identify, located and contact the Registrant and/or owner of the website located at the domain name,
SB 470294 v1:000009.0189

[PROPOSED] ORDER GRANTING PLAINTIFFS MOTION TO COMPEL 5:08-MC-80117-JW

Case 5:08-mc-80117-JW

Document 2-7

Filed 06/18/2008

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BROWNSTEIN HYATT FARBER SCHREC K, LLP

wwwmadisonliq.com, including, but not limited to, correspondence, e-mails, proposals, contracts, invoices and/or statements. IT IS FURTHER ORDERED that attorney s fees in the amount of $___________ be awarded in favor of Plaintiffs and against Defendant. IT IS SO ORDERED. DATED: __________________________ ___________________________________ JUDGE OF THE UNITED STATES DISTRICT COURT

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21 East Carrillo Street Santa Barbara, CA 93101

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SB 470294 v1:000009.0189

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[PROPOSED] ORDER GRANTING PLAINTIFFS MOTION TO COMPEL 5:08-MC-80117-JW

Case 5:08-mc-80117-JW

Document 2-7

Filed 06/18/2008

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BROWNSTEIN HYATT FARBER SCHREC K, LLP

PROOF OF SERVICE BY MAIL I am over the age of eighteen years and not a party to this action. My business address is 21 East Carrillo Street, Santa Barbara, California 93101. I am readily familiar with this firm s practice for collection and processing of correspondence for mailing with the United States Postal Service. On June 18, 2008, I placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document(s): [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION TO COMPEL COMPLIANCE WITH SUBPOENA in a sealed envelope, postage fully paid, addressed as follows:

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21 East Carrillo Street Santa Barbara, CA 93101

Denelle Dixon-Thayer Senior Legal Director Yahoo! Inc. 701 First Avenue Sunnyvale, CA 94089

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SB 470294 v1:000009.0189

Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service on this date. I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on June 18, 2008, at Santa Barbara, California.

Melissa A. Eldridge

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[PROPOSED] ORDER GRANTING PLAINTIFFS MOTION TO COMPEL 5:08-MC-80117-JW