CBS Broadcasting Inc v. American Broadcasting Companies Inc et al
Filing
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EX PARTE APPLICATION to Expedite Discovery Deadlines filed by plaintiff CBS Broadcasting Inc. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Proposed Order)(Kapur, Theane)
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SCOTT A. EDELMAN, SBN 116927
SEdelman@gibsondunn.com
MICHAEL W. SEITZ, SBN 271136
MSeitz@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
2029 Century Park East
Los Angeles, CA 90067-3026
Telephone: 310.552.8500
Facsimile: 310.551.8741
THEANE EVANGELIS KAPUR, SBN 243570
TKapur@gibsondunn.com
BLAINE H. EVANSON, SBN 254338
BEvanson@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: 213.229.7000
Facsimile: 213.229.7520
Attorneys for Plaintiff,
CBS BROADCASTING INC.
UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
CASE NO. 2:12-CV-04073 MMM
(JEMx)
CBS Broadcasting Inc.,
Plaintiff,
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CBS’S EX PARTE APPLICATION
FOR EXPEDITED DISCOVERY AND
TO SHORTEN TIME FOR BRIEFING
AND HEARING ON CBS’S MOTION
FOR A PRELIMINARY
INJUNCTION; MEMORANDUM OF
POINTS AND AUTHORITIES;
DECLARATION OF THEANE
EVANGELIS KAPUR
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[[Proposed] Order filed concurrently]
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Hearing:
Date:
Time:
Place:
Judge:
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v.
American Broadcasting Companies Inc.,
et al.,
Defendants.
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None set
None set
Courtroom No. 780
Hon. Margaret M. Morrow
TO THE COURT, THE PARTIES, AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT Plaintiff CBS Broadcasting Inc. (“CBS”), by
and through its counsel of record, applies ex parte, pursuant to Federal Rule of Civil
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Procedure 26(f)(1) and 6(c)(1)(C), and Local Rules 6-1 and 7-19, for (i) an order for
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expedited discovery, and (ii) an order shortening time for briefing and hearing on
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CBS’s impending Motion for a Preliminary Injunction. This ex parte Application is
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based upon this Notice, the enclosed Application, Memorandum of Points and
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Authorities, the Declaration of Theane Evangelis Kapur, and such other evidence as
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may be presented to the Court at any hearing on the ex parte Application.
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By this application, CBS seeks limited discovery on an expedited basis in order
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to learn the nature and extent of the ongoing infringement of CBS’s copyright interests
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and theft of CBS’s trade secrets and other confidential information by Defendants
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American Broadcasting Companies, Inc. (“ABC”), The Walt Disney Company, Disney
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Enterprises, Inc., ABC, INC. (dba Disney/ABC Television Group), Keep Calm and
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Carry On Productions, Inc., Corie Henson, Michael O’Sullivan, Kenny Rosen, and
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others (collectively, “Defendants”). CBS needs discovery to develop the evidentiary
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record for an imminent request for a preliminary injunction barring Defendants’
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wrongful and infringing conduct—circumstances that courts routinely have found to
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justify expedited discovery. See, e.g., Apple Inc. v. Samsung Electronics Co., 2011
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WL 1938154, *2 (N.D. Cal., May 18, 2011); Interserve, Inc. v. Fusion Garage PTE,
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Ltd., 2010 WL 143665, at *2 (N.D. Cal., Jan. 7, 2010); OMG Fid., Inc. v. Sierius
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Techs., Inc., 239 F.R.D. 300, 305 (N.D.N.Y. 2006); Bonus of Am., Inc. v. Angel Falls
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Servs., LLC, 2010 WL 2218574, at *4 (D. Minn., May 28, 2010).
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CBS’s request for a preliminary injunction must be expedited because of the
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circumstances giving rise to CBS’s claims. The misappropriation of CBS’s valuable
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intellectual property is occurring at an accelerated rate as the culmination of
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Defendants’ infringing work (a new television series entitled “Life in a Glass House”
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(“Glass House”)) is scheduled to broadcast throughout the United States on June 18,
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2012. Glass House, which remarkably employs at least 19 former producers and staff
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from CBS’s groundbreaking and extremely popular television series Big Brother, is a
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carbon copy of Big Brother and an obvious attempt by Defendants to capitalize on Big
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Brother’s unique success. Allowing the infringing work to air publicly without giving
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CBS an opportunity to stop the ongoing infringement will substantially prejudice CBS
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and cause it irreparable harm.
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Moreover, CBS owns a number of valuable trade secrets related to the behind-
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the-scenes, technical aspects of filming and production on Big Brother that CBS
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alleges are being disclosed to ABC and its affiliates, in violation of non-disclosure
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agreements, by CBS’s former employees who now work on Glass House (including
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Defendants Henson, O’Sullivan, and Rosen). Because Glass House is now in the
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midst of production, the value to Defendants of CBS’s trade secrets and confidential
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information is at its highest, and those trade secrets and confidential information are
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likely being disclosed on the production of Glass House every day. CBS will suffer
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substantial and irreparable harm if these wrongs are allowed to continue, as compared
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to the limited burden that this discovery will place on Defendants. CBS’s application
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for expedited discovery is, therefore, supported by good cause.
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Finally, pursuant to Federal Rule of Civil Procedure 6(c)(1)(C) and Local Rule
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6-1, CBS also applies to the Court to shorten time for the briefing and hearing schedule
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for its impending motion for a preliminary injunction. Based on the Court’s
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“discretion to shorten time” under the federal rules, see United States v. Fitch, 472
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F.2d 548, 549 n.5 (9th Cir. 1973), CBS requests that the Court set an accelerated
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briefing and hearing schedule so that, after limited discovery, the Court may decide
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CBS’s motion as soon as possible—to mitigate the ongoing, irreparable harm to CBS
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and to resolve the motion before Defendants broadcast their infringing work.
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Counsel for Defendants were given notice of this ex parte application on May
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14, 2012 and expressed their intent to oppose this motion. ABC and its affiliated
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entities’ counsel is Glenn D. Pomerantz of Munger, Tolles & Olson LLP. Mr.
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Pomerantz’s address is 355 South Grand Avenue, Floor 35, Los Angeles, California
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90071-1560. His telephone number is (213) 683-9123, and his email address is
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Glenn.Pomerantz@mto.com. Counsel for Defendants Henson, O’Sullivan, and Rosen
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is Devin McRrae of Early Sullivan Wright Gizer & McRae LLP. Mr. McRae’s
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address is 6420 Wilshire Boulevard, Floor 17, Los Angeles, California 90048. His
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telephone number is (323) 301-4661, and his email address is
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dmcrae@earlysullivan.com.
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Dated: May 14, 2012
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SCOTT A. EDELMAN
THEANE EVANGELIS KAPUR
BLAINE H. EVANSON
MICHAEL W. SEITZ
GIBSON, DUNN & CRUTCHER LLP
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By:
/s/ Scott A. Edelman
Scott A. Edelman
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Attorneys for CBS Broadcasting Inc.
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Gibson, Dunn &
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TABLE OF CONTENTS
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Page
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I.
Introduction .......................................................................................................... 1
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II.
Factual Background .............................................................................................. 2
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A.
CBS’s Hit Series Big Brother .................................................................... 2
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B.
ABC’s Production of a Virtually Identical Show—Glass House—
That Infringes Big Brother ......................................................................... 3
C.
ABC’s Development, Filming, and Production of Glass House Is
Led by Former Big Brother Producers and Staff Hired by ABC to
Facilitate Its Copyright Infringement and Misappropriation of
CBS’s Trade Secrets .................................................................................. 4
D.
Procedural History ..................................................................................... 5
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III.
Argument .............................................................................................................. 5
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A.
CBS Has Good Cause to Proceed Ex Parte ............................................... 6
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B.
CBS’s Request for Expedited Discovery Is Supported by Good
Cause .......................................................................................................... 6
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1.
CBS Expects to File for a Preliminary Injunction Against
ABC’s Infringement of CBS’s Copyright and
Misappropriation of CBS’s Trade Secrets ....................................... 7
2.
Expedited Discovery Is Necessary to Avoid Prejudice and
Irreparable Harm to CBS ................................................................. 9
3.
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The Discovery Is Narrowly Tailored and Not Overly
Burdensome or Prejudicial to Defendants ..................................... 11
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C.
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IV.
A Shortened Briefing and Hearing Schedule Is Necessary to Avoid
Substantial and Irreparable Harm to CBS ................................................ 13
Conclusion .......................................................................................................... 14
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TABLE OF AUTHORITIES
Page(s)
2
3
Cases
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Am. LegalNet, Inc. v. Davis,
673 F. Supp. 2d 1063 (2009) (C.D. Cal.) .............................................................. 6, 7
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Apple Inc. v. Samsung Electronics Co.,
2011 WL 1938154 (N.D. Cal., May 18, 2011)................................................ 2, 8, 11
Automated Merchandising Sys., Inc. v. Crane Co.,
357 F. App’x. 297 (Fed. Cir. 2009) ........................................................................... 9
Berster Tech., LLC v. Christmas,
2012 WL 33031 (E.D. Cal., Jan. 6, 2012) ................................................................. 9
Bethea v. Burnett,
2005 WL 1720631 (C.D. Cal., Jun. 28, 2005)........................................................... 5
Bonus of Am., Inc. v. Angel Falls Servs., LLC,
2010 WL 2218574 (D. Minn., May 28, 2010) ...................................................... 2, 8
Campbell Soup Co. v. ConAgra, Inc.,
977 F.2d 86 (3d Cir. 1992) ...................................................................................... 10
CBS Broadcasting Inc. v. ABC, Inc.,
2003 WL 23407514 (S.D.N.Y., Jan. 14, 2003) ......................................................... 5
Countrywide Fin. Corp. Derivative Litig.,
542 F. Supp. 2d 1160 (C.D. Cal. 2008) ..................................................................... 6
First Time Videos, LLC v. Doe,
2012 WL 1355725 (E.D. Cal., Apr. 18, 2012) .......................................................... 7
Hard Drive Productions, Inc. v. Doe,
2012 WL 126247 (E.D. Cal., Jan. 17, 2012) ............................................................. 7
Interserve, Inc. v. Fusion Garage PTE, Ltd.,
2010 WL 143665 (N.D. Cal., Jan. 7, 2010)....................................................... 2, 6, 8
Metcalf v. Bocho,
294 F.3d 1069 (9th Cir. 2002) ....................................................................... 6, 11, 12
Milano v. NBC Universal, Inc.,
584 F. Supp. 2d 1288 (C.D. Cal. 2008) ..................................................................... 5
New York Civil Liberties Union v. New York City Transit Auth.,
675 F. Supp. 2d 411 (S.D.N.Y. 2009) ....................................................................... 8
OMG Fid., Inc. v. Sierius Techs., Inc.,
239 F.R.D. 300 (N.D.N.Y. 2006) ........................................................ 2, 8, 10, 12, 13
Pink Lotus Entertainment, LLC v. Doe,
2012 WL 260441 (E.D. Cal., Jan. 23, 2012) ............................................................. 7
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TABLE OF AUTHORITIES
(continued)
Page(s)
Sheehan v. MTV Networks,
1992 WL 58876 (S.D.N.Y., Mar. 13, 1992) .............................................................. 6
Three Boys Music Corp. v. Bolton,
212 F.3d 477 (9th Cir. 2000) ............................................................................... 6, 12
Trak, Inc. v. Benner Ski KG,
475 F. Supp. 1076 (D. Mass. 1979) ......................................................................... 13
United Cent. Bank v. Kanan Fashions, Inc.,
2010 WL 775040 (N.D. Ill., Mar. 5, 2010) ............................................................... 8
United States v. Fitch,
472 F.2d 548 (9th Cir. 1973) ............................................................................... 3, 13
Statutes
17 U.S.C. § 101 ........................................................................................................... 1, 5
Cal. Bus. & Prof. Code, § 17200 et seq .......................................................................... 5
Cal. Civ. Code, §§ 3426-3426.11 ................................................................................... 5
Rules
Fed. R. Civ. Proc. 26 ....................................................................................................... 7
Fed. R. Civ. Proc. 26(d) .............................................................................................. 6, 7
Fed. R. Civ. Proc. 26(f) ............................................................................................... 7, 9
Fed. R. Civ. Proc. 26(f)(1) .............................................................................................. 2
Fed. R. Civ. Proc. 6(c)(1)(C) ................................................................................ 2, 3, 13
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
Defendant American Broadcasting Companies Inc.’s (“ABC”) latest reality
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television project, “Life in a Glass House” (“Glass House”)—which remarkably
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employs at least 19 former producers and staff from Plaintiff CBS Broadcasting Inc.’s
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(“CBS”) hit reality television series Big Brother—is a carbon copy of Big Brother and
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an obvious attempt by Defendants to capitalize on its unique success. Because
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Defendants are currently engaged in ongoing infringement of CBS’s rights in Big
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Brother and theft of CBS’s valuable trade secrets associated with that series, and
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because ABC intends to begin broadcasting its infringing show on June 18, 2012, CBS
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requests that this Court enter an order granting CBS expedited discovery to enable it to
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bring a motion for a preliminary injunction.
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As detailed in CBS’s complaint, Defendants’ development of Glass House is a
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theft of CBS’s trade secrets, confidential information, and copyrightable expression.
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The striking similarities between the two shows have also been recognized by the
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media, who, as CBS has alleged, have reported that ABC “is copying Big Brother” and
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“knocking off” the highly successful show that CBS has been broadcasting since 2000.
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(Cmplt. ¶ 3.) Glass House is a substantially similar reproduction of Big Brother in
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violation of CBS’s exclusive rights under the Copyright Act, 17 U.S.C. § 101, et seq.,
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and valuable trade secrets related to the behind-the-scenes, technical aspects of filming
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and production on Big Brother are being disclosed to ABC, in violation of non-
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disclosure agreements, by the former Big Brother employees working on Glass House
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(including Defendants Henson, O’Sullivan, and Rosen (the “Individual Defendants”)).
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Because Glass House is set to debut only five weeks from today, more trade
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secrets, confidential information, and copyrightable expression are being passed to
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ABC and its affiliates every day that passes. Once this information is disclosed, the
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harm to CBS is irreparable; no amount of money can cause CBS’s competitors to un-
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learn its valuable trade secrets and confidential information.
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Limited, expedited discovery will allow CBS to develop the evidentiary record
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in connection with its motion for a preliminary injunction, and it will benefit the Court
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and the parties by “allow[ing] the Court to address any request for preliminary
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injunctive relief at the outset of the case, thereby providing a measure of clarity to the
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parties early in the proceeding and facilitating effective case management.” Apple Inc.
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v. Samsung Electronics Co., 2011 WL 1938154, *2 (N.D. Cal., May 18, 2011).
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Indeed, numerous courts have found grounds for expedited discovery orders in cases
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like this one—where a party seeks discovery in advance of a preliminary injunction in
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connection with claims of infringement or misappropriation. See, e.g., id.; Interserve,
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Inc. v. Fusion Garage PTE, Ltd., 2010 WL 143665, at *2 (N.D. Cal., Jan. 7, 2010);
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OMG Fid., Inc. v. Sierius Techs., Inc., 239 F.R.D. 300, 305 (N.D.N.Y. 2006).
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CBS therefore requests that the Court order Defendants to respond to the six
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document requests attached to this Application as Exhibit A (Kapur Decl., Ex. A),
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make a single disclosure identifying persons working on Glass House, and make
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available for deposition a limited number of the key former Big Brother staff members
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who are now employed on Glass House. In addition, CBS requests that the Court
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shorten the briefing and hearing schedule for CBS’s impending preliminary injunction
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motion so that the Court can decide the motion as soon as possible—to mitigate the
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ongoing, irreparable harm to CBS and to resolve CBS’s motion before Defendants
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begin broadcasting their infringing work. CBS has met and conferred with counsel for
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Defendants, who have been unwilling to allow the reasonable expedited discovery that
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CBS requests. (See Kapur Decl., ¶¶ 5–7.)
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II.
A.
FACTUAL BACKGROUND
CBS’s Hit Series Big Brother
Big Brother is an enormously successful reality television show that CBS has
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been broadcasting as the exclusive U.S. licensee since 2000. (Cmplt. ¶ 23.)
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Contestants on the show live together in a large house, isolated from the outside world,
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where they are filmed continuously. Contestants are periodically “evicted” from the
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house as a result of tasks and competitions. They are voted for eviction by their co-
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contestants or, in the premiere season, by viewers. (Cmplt. ¶¶ 25, 37.) Although the
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show typically broadcasts daily updates in the evening, viewers also can watch a
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continuous, 24-hour feed from multiple cameras on the web. (Cmplt. ¶ 31.)
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Big Brother pioneered a series of interactive features through which viewers of
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Big Brother are given input into the show, including which contestants are evicted
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from the house and in some cycles of the show which contestants are allowed back into
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the house after they have been eliminated. (Cmplt. ¶ 30.) For example, there is a
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contestant called “America’s Player,” who is given assignments, unknown to the other
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houseguests, through votes from the viewing public. The public votes on which
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nominated contestant America’s Player should vote off and campaign to get evicted.
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(Cmplt. ¶ 32.)
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B.
ABC’s Production Of A Virtually Identical Show—Glass House—That
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Infringes Big Brother
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ABC recently announced it is producing a new reality television show named
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“Life in a Glass House,” which ABC plans to debut on June 18, 2012 and run through
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August 20, 2012. (Cmplt. ¶¶ 33-34.) The show is virtually identical to Big Brother,
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leading media outlets to report that ABC “is copying Big Brother” and “knocking off”
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the highly successful show that CBS has been broadcasting since 2000. (Cmplt. ¶ 3.)
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For example, according to ABC’s own description and additional published
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accounts, Glass House, like Big Brother, involves 14 contestants living together in a
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house rigged with cameras. And as in Big Brother, contestants on Glass House will
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face eviction, with the last person standing winning a six-figure cash prize. (Cmplt.
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¶ 35.)
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ABC has also copied the interactive features that CBS pioneered with Big
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Brother. In Glass House, just like in Big Brother, viewers will be encouraged to
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support and follow the contestants they like, their votes helping to determine which
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contestants are sent home. As in Big Brother, viewers can watch a live online feed of
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Glass House. While the show will be broadcast for just one hour per week, there will
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be several live online feeds at other times, when viewers can talk with the players and
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offer encouragement, criticism, or suggestions. (Cmplt. ¶ 36.)
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C.
ABC’s Development, Filming, And Production Of Glass House Is Led By
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Former Big Brother Producers And Staff Hired By ABC To Facilitate Its
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Copyright Infringement And Misappropriation Of CBS’s Trade Secrets
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The striking similarity between the two shows is unsurprising, because the
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access ABC has had to CBS’s protected intellectual property is unparalleled: Glass
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House’s most senior positions and most critical functions are being led and staffed
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with former producers and other staff of Big Brother. (Cmplt. ¶ 38.) Former Big
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Brother producers and staff—all of whom signed non-disclosure agreements in
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connection with Big Brother—have been hired by ABC to lead the development,
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filming, and production of Glass House. (Cmplt. ¶¶ 38-62.)
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For example, Defendant Corie Henson, ABC’s Vice President of Alternative
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Programming, was a Producer of Big Brother seasons 6 and 7. (Cmplt. ¶ 44.)
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Defendant Kenny Rosen worked for at least five years as Co-Executive Producer of
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Big Brother seasons 3 through 8. He is now the Glass House show-runner. (Cmplt.
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¶ 45.) And Defendant Michael O’Sullivan was a Supervising Producer of Big Brother
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for at least eight years (seasons 4 through 13). He is now involved in the production of
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Glass House. (Cmplt. ¶ 46.) At least 16 other former Big Brother producers and staff
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are now working at CBS on Glass House. (Cmplt. ¶¶ 47-62.)
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The non-disclosure agreements that each of these former Big Brother producers
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and staff signed specify that if a signatory’s work on Big Brother would reveal
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“confidential and/or proprietary information and/or trade secrets . . ., which may never
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be intended for dissemination to the general public at any time,” they would not
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“publish, reveal, disseminate, disclose, or cause to be published, revealed,
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disseminated or disclosed . . . any Confidential Information.” (Cmplt. ¶ 41.)
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D.
Procedural History
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ABC announced its development, production, and targeted debut of Glass House
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on April 30, 2012. On May 4, 2012, CBS sent letters to ABC, The Walt Disney
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Company (ABC’s parent), and the three Individual Defendants, advising each of them
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that their development and production of Glass House infringed CBS’s copyright and
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that Defendants had misappropriated CBS’s trade secrets. (Kapur Decl., Ex B.) CBS
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received no response to these letters until after it filed the complaint. (Kapur Decl.
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¶ 3.)
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CBS filed a complaint in the instant action on May 10, 2012, asserting claims
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for (1) copyright infringement (17 U.S.C. § 101 et seq.); (2) trade secret
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misappropriation (Cal. Civ. Code, §§ 3426-3426.11); (3) unfair and unlawful
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competition (Cal. Bus. & Prof. Code, § 17200 et seq.); (4) breach of contract; (5)
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breach of fiduciary duty; (6) inducing breach of contract; (7) inducing breach of
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fiduciary duty; (8) conversion; (9) conspiracy; and (10) aiding and abetting. (Cmplt.
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¶¶ 73-161.)
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III.
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ARGUMENT
Defendants’ blatant stealing of CBS’s trade secrets, copyrightable expression,
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and other confidential information is illegal, irreparably harms CBS, and must be
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stopped before it is too late. Expedited discovery and a shortened schedule for CBS’s
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impending motion for a preliminary injunction is warranted here so CBS can quickly
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file—and so the Court can efficiently decide—a motion to enjoin Defendants from
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misappropriating, disclosing, or using CBS’s confidential information and trade
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secrets, and from infringing CBS’s copyrightable expression. (See, e.g., Cmplt ¶¶ 87,
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103, 105, 123 (seeking preliminary injunctive relief).)1 This is an established basis for
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“Reality television” is a relatively new format, and courts have had few occasions
to apply the Copyright Act to “reality” shows. Nonetheless, it is clear that reality
television is protectable under the Act. Courts so far have assumed reality TV is
protectable and have examined whether the works are substantially similar and/or
the alleged infringer’s degree of access to the original work. See, e.g., Bethea v.
(Cont’d on next page)
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expedited discovery, and expedited discovery and an order shortening time are
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supported by good cause here due to the extreme burden and irreparable harm to CBS
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if these matters are delayed.
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A.
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CBS Has Good Cause To Proceed Ex Parte
As a direct result of ABC’s scheduled June 18, 2012 broadcast date for Glass
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House, CBS is unable to request expedited discovery from the Court via noticed
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motion without suffering severe harm. If CBS filed a noticed motion, its motion for
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expedited discovery would be heard, per Local Rule 6-1, on June 11, 2012 at the
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earliest. By that time, Glass House would be set to air in one week, and there would
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be insufficient time to collect discovery and set a briefing and hearing schedule on
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CBS’s motion for a preliminary injunction. Moreover, delaying discovery by months
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would cause further and irreparable disclosure of CBS’s trade secrets and confidential
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information to CBS’s business competitors.
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B.
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CBS’s Request For Expedited Discovery Is Supported By Good Cause
Federal Rule of Civil Procedure 26(d) expressly authorizes the Court to issue an
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order permitting early discovery. In this circuit, “[c]ourts may permit expedited
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discovery before the Rule 26(f) conference upon a showing of good cause.” Am.
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(Cont’d from previous page)
Burnett, 2005 WL 1720631 (C.D. Cal., Jun. 28, 2005); Milano v. NBC Universal,
Inc., 584 F. Supp. 2d 1288 (C.D. Cal. 2008); CBS Broadcasting Inc. v. ABC, Inc.,
2003 WL 23407514 (S.D.N.Y., Jan. 14, 2003). Moreover, even where a format
relies on generic “scenes a faire,” this Circuit recognizes that “[t]he particular
sequence in which an author strings a significant number of unprotectable elements
can itself be a protectable element.” Metcalf v. Bocho, 294 F.3d 1069, 1074 (9th
Cir. 2002); see also Sheehan v. MTV Networks, 1992 WL 58876, *3 (S.D.N.Y.,
Mar. 13, 1992) (“[E]ven though a television game show is made up entirely of
stock devices, an original selection, organization and presentation of such devices
can nevertheless be protected . . . .”). And courts require a lower burden for
infringement where, as here, the defendant has a high degree of access to the rights
holder’s protectable expression. Three Boys Music Corp. v. Bolton, 212 F.3d 477,
484 (9th Cir. 2000); Metcalf, 294 F.3d at 1074. Indeed, Big Brother has been
registered with the Copyright Office. (Kapur Decl., Exh. C.) In either case, there is
no requirement that a movant establish likelihood of success on the merits in order
to obtain expedited discovery. Apple, 2011 WL 1938154, at* 3. CBS will make
that showing in connection with its motion for a preliminary injunction.
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1
LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, (2009) (C.D. Cal.) (quoting In re
2
Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal.
3
2008)); see also Interserve, 2010 WL 143665, at *2 (“In the Ninth Circuit, courts use
4
the ‘good cause’ standard to determine whether discovery should be allowed to
5
proceed prior to a Rule 26(f) conference.”). “Good cause exists where the need for
6
expedited discovery, in consideration of the administration of justice, outweighs the
7
prejudice to the responding party.” Am. LegalNet, 673 F. Supp. at 1066 (internal
8
quotation omitted).
9
In determining whether good cause supports a request for expedited discovery,
10
courts generally consider: “(1) whether a preliminary injunction is pending; (2) the
11
breadth of the discovery requests; (3) the purpose for requesting the expedited
12
discovery; (4) the burden on the defendants to comply with the requests; and (5) how
13
far in advance of the typical discovery process the request [is] made.” Id. at 1067.
14
These factors support expedited discovery here.
15
1.
CBS Expects To File A Motion For A Preliminary Injunction Against
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Defendants’ Infringement Of CBS’s Copyright And
17
Misappropriation Of CBS’s Trade Secrets
18
This case has all the hallmarks of one requiring expedited discovery. First, the
19
discovery is sought in conjunction with an imminent motion for a preliminary
20
injunction. According to the Advisory Committee Notes to Federal Rule of Civil
21
Procedure 26, early discovery is appropriate in cases “such as those involving requests
22
for a preliminary injunction.” Notes to the 1993 amendments to Rule 26(d); see also
23
Am. LegalNet, 673 F. Supp. at 1066 (“The good cause standard may be satisfied where
24
a party seeks a preliminary injunction.”). Second, courts routinely observe that
25
expedited discovery is particularly appropriate “in cases involving claims of
26
infringement and unfair competition.” See, e.g., First Time Videos, LLC v. Doe, 2012
27
WL 1355725, *3 (E.D. Cal., Apr. 18, 2012) (emphasis added); Pink Lotus
28
Entertainment, LLC v. Doe, 2012 WL 260441, *2 (E.D. Cal., Jan. 23, 2012) (same);
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Crutcher LLP
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Hard Drive Productions, Inc. v. Doe, 2012 WL 126247, *1 (E.D. Cal., Jan. 17, 2012)
2
(same).
3
A motion for a preliminary injunction need not be “pending” for expedited
4
discovery to be warranted. Numerous courts have ordered expedited discovery where,
5
as here, information is needed to develop the evidentiary record for an impending
6
request for an injunction. For example, in Apple Inc. v. Samsung Electronics Co., the
7
District Court for the Northern District of California granted a plaintiff’s request for
8
“extensive discovery . . . approximately two-and-a-half months before discovery would
9
ordinarily be available” where it was necessary to “to allow [the plaintiff] to determine
10
whether to seek an early injunction.” 2011 WL 1938154 , at *2. The Apple court
11
noted that early expedited discovery was “relevant to [plaintiff’s] claims of
12
infringement,” which would “likely [] be central to any motion for preliminary
13
injunction.” Id. Thus, “expedited discovery would allow the Court to address any
14
request for preliminary injunctive relief at the outset of the case, thereby providing a
15
measure of clarity to the parties early in the proceeding and facilitating effective case
16
management.” Id.
17
Numerous other courts have also ordered expedited discovery in cases like this
18
one—where a plaintiff announces its intention to seek an injunction in connection with
19
the theft of the its intellectual property. See, e.g., Interserve, 2010 WL 143665, at *2
20
(granting expedited discovery in intellectual property dispute where it “will allow
21
plaintiff to determine whether to seek an early injunction”); OMG Fid., Inc., 239
22
F.R.D. at 305 (granting expedited discovery in trade secret misappropriation and unfair
23
competition dispute in advance of preliminary injunction to give plaintiff “an early
24
opportunity to develop evidence for use in support of such a motion”); accord Bonus
25
of Am., Inc. v. Angel Falls Servs., LLC, 2010 WL 2218574, at *4 (D. Minn., May 28,
26
2010) (granting motion for “expedited discovery to prepare for a motion for a
27
preliminary injunction”); United Cent. Bank v. Kanan Fashions, Inc., 2010 WL
28
775040, at *2 (N.D. Ill., Mar. 5, 2010) (noting previous “leave to conduct expedited
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Crutcher LLP
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discovery” and instructing of plaintiff “to file a motion for a preliminary injunction, if
2
necessary, after conducting ‘a little’ discovery”); New York Civil Liberties Union v.
3
New York City Transit Auth., 675 F. Supp. 2d 411, 422 (S.D.N.Y. 2009) (noting
4
“expedited plan for discovery in regard to Plaintiff’s contemplated motion for a
5
preliminary injunction”). For example, in Apple, the district court plaintiff’s motion
6
for expedited discovery in anticipation of a motion for a preliminary injunction where
7
the plaintiff alleged that an unfinished product that had yet to be released was
8
infringing. See, e.g., Apple, 2011 WL 1938154, at* 3.
9
CBS’s intention to file an imminent motion seeking a preliminary injunction
10
against, among other things, Defendants’ misappropriation, infringement, and unfair
11
and unlawful business practices is, therefore, a sufficient basis for ordering the limited
12
discovery CBS seeks here.
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14
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2.
Expedited Discovery Is Necessary To Avoid Prejudice And
Irreparable Harm To CBS
If discovery is not ordered in connection with CBS’s imminent request for a
16
preliminary injunction, then discovery will not begin until after the Rule 26(f)
17
conference, which is likely to be months away. But ABC is set to broadcast Glass
18
House on June 18, 2012—long before CBS would be able to obtain sufficient
19
discovery under normal discovery practice. Requiring CBS to wait until after Glass
20
House airs would irreparably harm and prejudice CBS in multiple ways.
21
First, allowing Defendants’ infringing work to broadcast throughout the United
22
States in violation of CBS’s exclusive rights under the Copyright Act will irreparably
23
harm CBS’s interests in Big Brother. Money will be inadequate to compensate CBS
24
for the erosion of Big Brother’s viewership and loss of goodwill among Big Brother
25
viewers that could occur if CBS’s competitors are allowed to publicly broadcast a
26
blatant rip-off of the show. E.g., Automated Merchandising Sys., Inc. v. Crane Co.,
27
357 F. App’x. 297, 301 (Fed. Cir. 2009) (lost market share may constitute irreparable
28
harm); Berster Tech., LLC v. Christmas, 2012 WL 33031, *10 (E.D. Cal., Jan. 6, 2012)
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Crutcher LLP
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(in copyright dispute, “lost or damaged good will,” “lost business,” and “lost business
2
opportunities” qualify as irreparable harm).
3
Second, if CBS is not permitted to seek expedited discovery in connection with
4
a motion for a preliminary injunction, then CBS will suffer substantial prejudice and
5
irreparable harm through the loss of its valuable trade secrets. CBS has alleged that
6
the former Big Brother producers and staff intend to continue to disclose and misuse
7
the trade secrets identified above, among others, by participating in the development,
8
filming, and production of Glass House. (E.g., Cmplt. ¶¶ 67-72.) For example, the
9
Individual Defendants were given copies of the “House Guest Manual,” “Producer’s
10
Binder,” and “Story Producers Handbook”—three critically important documents that
11
reveal highly confidential and proprietary trade secrets about how Big Brother is
12
produced—in connection with their work on Big Brother. CBS believes the Individual
13
Defendants have used these documents during their work on Glass House and may
14
have communicated their contents to other employees of Glass House. (Cmplt. ¶ 69.)
15
Indeed, the production phase leading up to the airing of the show—which CBS
16
believes is the current stage of Glass House (Cmplt. ¶ 72)—is the critical time period
17
in which trade secrets are most likely to be divulged. The House Guest Manual
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contains, among other things, details about how the Big Brother production staff
19
interacts with contestants. The Producer’s Binder sets forth the style guide, show
20
formats, planning and executing of the show, and a compilation of various reference
21
materials for producers. And the Story Producers Handbook, among other things, sets
22
forth the processes Big Brother uses to produce the show on such a tight timeframe.
23
(Cmplt. ¶¶ 69.) This information is most useful during the development and
24
production phase before airing, as the ABC producers and staff are planning and
25
formulating a strategy for Glass House. Once these trade secrets are disclosed, the
26
harm to CBS is irreparable; no amount of money can cause CBS’s competitors to un-
27
learn them. See, e.g., Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 92-93 (3d
28
Cir. 1992) (“[A]n intention to make imminent or continued use of a trade secret or to
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Crutcher LLP
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disclose it to a competitor will almost always show irreparable harm.”). The need for
2
CBS to get an expeditious determination of its request for a preliminary injunction is,
3
therefore, substantial, and “it is clear that [CBS] will potentially be unfairly prejudiced
4
should [the Court] not permit discovery to go forward since it will not have an early
5
opportunity to develop evidence for use in support of such a motion.” OMG Fidelity,
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239 F.R.D. at 305.
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3.
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The Requested Discovery Is Narrowly Tailored And Not Overly
Burdensome Or Prejudicial To Defendants
CBS’s application for expedited discovery is also supported by good cause
10
because each of its discovery requests is narrowly tailored and directly relevant to the
11
issues that will form the core of CBS’s anticipated preliminary injunction motion.
12
Moreover, the limited discovery sought by CBS will not excessively burden
13
Defendants.
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First, CBS seeks to serve six document requests, which are attached as Exhibit
15
A to the supporting declaration for this Application. (Kapur Decl., Ex. A.) These
16
requests ask only for documents relating to the production of Glass House or to Big
17
Brother, and communications involving specified individuals, all of whom are former
18
employees of Big Brother who had access to CBS’s confidential information and trade
19
secrets. Such documents will allow CBS and the Court to determine, among other
20
things, whether Glass House is substantially similar to Big Brother—a key factor for
21
whether Defendants have committed infringement and, thus, for whether CBS can
22
establish likelihood of success in order to obtain a preliminary injunction. Metcalf v.
23
Bocho, 294 F.3d 1069, 1074 (9th Cir. 2002). And they will shed light on the extent of
24
Defendants’ acts of infringement and misappropriation, which will allow CBS to show
25
likelihood of success and irreparable harm.
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Moreover, producing documents regarding Glass House, Big Brother, and the
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former Big Brother employees working on Glass House is hardly burdensome to
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Defendants. Glass House is a newly developed series that presumably has been in
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Crutcher LLP
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production only for a short time, and the request for documents related to Big Brother
2
applies to a limited timeframe. The universe of documents is therefore necessarily
3
small. Moreover, Defendants ABC and its affiliates are “sophisticated parties”
4
represented by capable counsel, Apple, 1011 WL 1938154, at *2; producing this
5
limited set of documents will not impose a significant burden on them, even on a tight
6
timeframe.2
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Second, CBS also seeks an order that Defendants disclose to CBS the names of
8
all the individuals who have worked on Glass House. This information should be easy
9
for Defendants to produce, and it will allow CBS to identify conclusively how many
10
former Big Brother employees Defendants have working on the show. E.g., OMG
11
Fidelity, 239 F.R.D. at 305 (interrogatories not burdensome on defendant where they
12
are “exceedingly pointed”). The information will therefore help determine the degree
13
of Defendants’ access to CBS’s copyrightable expression and trade secret
14
information—a critical factor for determining whether Defendants are committing
15
infringement and misappropriation. See, e.g., Three Boys Music Corp. v. Bolton, 212
16
F.3d 477, 485 (9th Cir. 2000) (“Under our case law, substantial similarity is
17
inextricably linked to the issue of access. In what is known as the inverse ratio rule,
18
we require a lower standard of proof . . . when a high degree of access is shown.”);
19
Metcalf, 294 F.3d at 1074 (holding that plaintiffs’ copyright claim was “strengthened
20
considerably by [defendant’s] access to their works”).
21
Third, CBS seeks an order from the Court that ABC and its affiliates make
22
available for depositions between May 24 and May 31, 2012 ten individuals who have
23
been involved in Glass House and who CBS will identify after it has an opportunity to
24
review documents from Defendants. These depositions are necessary for CBS to
25
discern the nature and extent of Defendants’ infringement and misappropriation.
26
27
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2
Similarly, the Individual Defendants have been working on Glass House for a short
time, and the number of documents in their possession related to Glass House is
likely to be small.
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Crutcher LLP
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Because each of the depositions will involve individuals working on the production of
2
Glass House, the potential deponents are very likely to be present in this District, are
3
under the control of Defendants, and can easily be produced by Defendants in this
4
action.
5
Finally, conducting discovery and deciding the preliminary injunction in the
6
most efficient way possible is also beneficial to Defendants. Here, without efficient
7
and expeditious discovery, the parties and the Court run the risk that CBS’s motion for
8
a preliminary injunction will come up for hearing after Glass House is already on the
9
air. Putting aside the irreparable harm to CBS, such circumstances could mean that the
10
Court will have to enjoin the distribution and broadcast of Glass House in the middle
11
of the series—a possibility that would be more costly for both CBS and Defendants.
12
Courts therefore recognize that it is often less prejudicial to enjoin a defendant that has
13
invested fewer resources into an infringing product than to wait until the defendant has
14
invested additional resources before enjoining its use. See, e.g., Trak, Inc. v. Benner
15
Ski KG, 475 F. Supp. 1076, 1078 (D. Mass. 1979) (noting that denying early injunctive
16
relief before commencement of sales campaign would “mak[e] permanent relief more
17
problematic.”). And Defendants have no valid interest in delaying these proceedings
18
so they can broadcast Glass House before the Court is able to issue a preliminary
19
injunction. See, e.g., OMG Fidelity, 239 F.R.D. at 306 (“[J]ustice delayed is justice
20
denied . . . . [T]he interjection of delay into litigation for the mere sake of delay serves
21
no useful purpose.”). It therefore makes eminent sense for CBS and the Court to have
22
expeditious access to the evidence necessary to determine if a preliminary injunction is
23
warranted.
24
C.
A Shortened Briefing And Hearing Schedule Is Necessary To Avoid
25
Substantial And Irreparable Harm To CBS
26
By this Application, CBS also requests that the Court shorten time for the
27
briefing and hearing schedule for CBS’s impending Motion for a Preliminary
28
Injunction. The Court has “discretion to shorten time” for briefing and hearing of a
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Crutcher LLP
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motion under the federal and local rules. See United States v. Fitch, 472 F.2d 548, 549
2
n.5 (9th Cir. 1973); Fed. Rule of Civ. Proc. 6(c)(1)(C); Local Rule 6-1. Here, an
3
accelerated briefing and hearing schedule on CBS’s Motion for a Preliminary
4
Injunction is necessary to mitigate the ongoing, irreparable harm described above and
5
to resolve CBS’s motion before Defendants infringing work begins broadcasting. CBS
6
proposes, so that its motion is heard expeditiously after the limited discovery, that: (i)
7
CBS file its motion for a preliminary injunction on or before June 4, 2012; (ii)
8
Defendants file their opposition on or before June 8, 2012; and (iii) CBS file any reply
9
on or before June 10, 2012. Such a schedule will allow CBS adequate time to seek
10
limited discovery in support of its motion, and it will give the Court time to hear and
11
decide the motion before Glass House begins broadcasting on June 18, 2012.
12
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IV.
CONCLUSION
For these and all of the foregoing reasons, CBS respectfully requests that the
Court order expedited discovery according to the following schedule:
(a)
Defendants are ordered to serve written responses and responsive
16
documents to the requests for production filed as Exhibit A to the
17
Declaration of Theane Evangelis Kapur filed in support of CBS’s Ex
18
Parte Motion for Expedited Discovery on or before May 18, 2012, by
19
5:00 p.m. PST.
20
(b)
Defendants are ordered to disclose to CBS the names of all individuals
21
working on Life in a Glass House or Glass House on or before May 18,
22
2012, by 5:00 p.m. PST.
23
(c)
Defendants are ordered to make available for deposition ten (10)
24
individuals associated with the project Glass House, who will be
25
identified by CBS on or before May 21, 2012, between May 24, 2012 and
26
May 31, 2012, inclusive.
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(d)
CBS’s anticipated motion for a preliminary injunction will be briefed and
heard on an expedited schedule before the June 18, 2012 broadcast of
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Glass House. CBS shall file its motion for a preliminary injunction on or
2
before June 4, 2012. Defendants shall file their opposition on or before
3
June 8, 2012, and CBS shall file its reply brief on or before June 10, 2012.
4
CBS’s motion for a preliminary injunction against Defendants shall be set
5
for a hearing on or before June 16, 2012.
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Dated: May 14, 2012
SCOTT A. EDELMAN
THEANE EVANGELIS KAPUR
BLAINE H. EVANSON
MICHAEL W. SEITZ
GIBSON, DUNN & CRUTCHER LLP
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By:
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/s/ Scott A. Edelman
Scott A. Edelman
Attorneys for CBS Broadcasting Inc.
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Gibson, Dunn &
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1
DECLARATION OF THEANE EVANGELIS KAPUR
2
I, Theane Evangelis Kapur, declare as follows:
3
1.
I am a partner in the law firm of Gibson, Dunn & Crutcher LLP, counsel
4
to Plaintiff CBS Broadcasting Inc. (“CBS”) in this action. I submit this declaration in
5
support of CBS’s Ex Parte Application for Expedited Discovery and to Shorten Time
6
for Briefing and Hearing On CBS’s Motion for a Preliminary Injunction. If called as a
7
witness in this action, I could and would testify competently to the matters set forth
8
herein.
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2.
Attached hereto as Exhibit A is a true and correct copy of CBS’s
10
proposed requests for production of documents, for which it seeks an order from this
11
Court to serve on the defendants in this action.
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3.
Attached hereto as Exhibit B is a true and correct copy of the letters CBS
13
sent to American Broadcast Companies Inc. (“ABC”), The Walt Disney Company
14
(ABC’s parent), and Defendants Henson, O’Sullivan, and Rosen on May 4, 2012.
15
CBS received no response to these letters until after it filed its Complaint.
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4.
Attached hereto as Exhibit C is the Report on the Filing or Determination
17
of an Action or Appeal Regarding a Copyright, filed by CBS in this action on May 10,
18
2012, which contains the registration numbers for Big Brother copyrights at issue in
19
this action.
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5.
On May 14, 2012, my partner, Scott A. Edelman and I met and conferred
21
via telephone with Jonathan Altman, counsel for American Broadcasting Companies,
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Inc., The Walt Disney Company, Disney Enterprises, Inc., ABC, INC., and Keep Calm
23
and Carry On Productions, Inc. I also met and conferred with Devin McRae, counsel
24
for Corie Henson, Michael O’Sullivan, and Kenny Rosen.
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6.
We proposed the discovery and briefing schedule set forth in CBS’s Ex
26
Parte Motion, and I reiterated that proposal in the email attached as Exhibit D. I also
27
provided defendants with a courtesy copy of the Requests for Production and Proposed
28
Order filed with CBS’s Motion. Defendants responded by email with the following
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1
proposal: (1) CBS would provide more specific disclosures of its trade secrets; (2)
2
Defendants would produce a cherry-picked set of documents “sufficient to show the
3
Glass House show as it is currently envisioned”; (3) the parties would each be entitled
4
to 7 hours of deposition time to use as they see fit, and Defendants would serve a Rule
5
30(b)(6) deposition notice on CBS; and (4) the parties would agree to a briefing
6
schedule in which CBS’s motion for preliminary injunction would be due May 25,
7
2012, Defendants’ opposition brief due June 4, 2012, CBS would waive its reply brief,
8
and CBS’s motion would be heard on June 11, 2012. Defendants’ proposal is included
9
in Exhibit D as well.
10
7.
Apart from Defendants’ request for further disclosures related to CBS’s
11
trade secrets, which CBS is currently gathering, CBS cannot agree to Defendants’
12
proposal. As an initial matter, the schedule Defendants propose is unworkable because
13
it is too limited and will not produce the documents related to defendants’ infringement
14
of CBS’s copyright and misappropriation of its trade secrets, which are necessary for
15
CBS’s motion for a preliminary injunction. Moreover, the deposition schedule would
16
be insufficient because there are at least 19 people working on the show from Big
17
Brother, and 10 depositions is a reasonable request in light of that fact. Further, CBS
18
is entitled to a reply brief in support of its motion for preliminary injunction and is
19
willing to draft its reply over a weekend and file on a Monday. Finally, Defendants
20
have not asserted any counter-claims, and there is no need for them to conduct any
21
discovery. Even if there were, it would be far more limited than the discovery that
22
CBS must seek in support of its motion for a preliminary injunction.
23
8.
CBS’s Application to proceed ex parte is supported by good cause
24
because, if CBS filed a noticed motion, its motion for expedited discovery and to
25
shorten time would be heard, per Local Rule 6-1, on June 11, 2012 at the earliest. By
26
that time, Glass House would be set to air in one week, and there would be insufficient
27
time to collect discovery and set a briefing and hearing schedule on CBS’s motion for
28
a preliminary injunction against its broadcast. Moreover, CBS has alleged that its
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1
trade secrets are currently being divulged to its business competitors. Delaying a
2
decision on CBS’s Application would cause irreparable harm to CBS due to the
3
disclosure of its valuable and confidential trade secrets.
4
I declare under penalty of perjury under the laws of the United States and the
5
State of California that the foregoing is true and correct, and that this Declaration was
6
executed on this 14th day of May 2012, at Los Angeles, California.
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/s/ Theane Evangelis Kapur
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THEANE EVANGELIS KAPUR
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Gibson, Dunn &
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CERTIFICATE OF SERVICE
2
I, Gilbert Lee, certify as follows:
3
I am employed in the County of Los Angeles, State of California; I am over the
4
age of eighteen years and am not a party to this action; my business address is 333
5
South Grand Avenue, Los Angeles, California, 90071-3197, in said County and State.
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I am employed in the office of Theane Evangelis Kapur, a member of the bar of this
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Court, and at her direction on May 14, 2012, I served the following document:
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CBS’S EX PARTE APPLICATION FOR EXPEDITED DISCOVERY AND TO
SHORTEN TIME FOR BRIEFING AND HEARING ON CBS’S MOTION
FOR A PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF THEANE EVANGELIS KAPUR
on the parties listed on the attached Service List by the following means of service:
Glenn Pomerantz
Munger, Tolles & Olson LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071-1560
Telephone: (213) 683-9100
Facsimile: (213) 687-3702
Glenn.Pomerantz@mto.com
Attorneys for American Broadcasting
Companies, Inc., The Walt Disney
Company, Disney Enterprises, Inc.,
ABC, INC., dba Disney/ABC Television
Group, and Keep Calm and Carry On
Productions, Inc.
Devin A. McRae
Early Sullivan Wright Gizer & McRae
LLP
6420 Wilshire Blvd., 17th Floor
Los Angeles, CA 90048
Telephone: (323) 301-4660
Facsimile: (323) 301-4676
dmcrae@earlysullivan.com
Attorneys for Corie Henson, Michael
O’Sullivan, and Kenny Rosen
BY PERSONAL SERVICE: I caused each such document to be
transmitted to counsel of record by same-day courier service.
I am employed in the office of Gibson, Dunn & Crutcher LLP, a member of the
bar of this court, and the foregoing document was printed on recycled paper.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on May 14, 2012, in Los Angeles, California.
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/s/ Gilbert Lee
Gilbert Lee
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Gibson, Dunn &
Crutcher LLP
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