UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al, No. 2:2007cv05744 - Document 268 (C.D. Cal. 2008)
Court Description: EX PARTE APPLICATION for Protective Order Allowing it to Cease Storing Cancelled Video Files filed by Defendant Veoh Networks, Inc.. (Attachments: # 1 Declaration of Jennifer A. Golinveaux, # 2 Declaration of David Muller, # 3 Proposed Order Granting Ex Parte Application)(Ranahan, Erin)
Download PDF
<![CDATA[
UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al 1 2 3 4 5 6 7 8 9 101 California Street San Francisco, CA 94111-5894 Winston & Strawn LLP 10 11 12 Rebecca Calkins (SBN: 195593) Email: rcalkins@winston.com Erin Ranahan (SBN: 235286), Email: eranahan@winston.com WINSTON & STRAWN LLP 333 South Grand Avenue, 38th Floor Los Angeles, CA 90071-1543 Telephone: 213-615-1700 Facsimile: 213-615-1750 Attorneys for Defendant VEOH NETWORKS, INC. UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 16 UMG RECORDINGS, INC., et al. 17 Plaintiffs, 19 20 21 22 23 24 Michael S. Elkin (admitted pro hac vice) Email: melkin@winston.com Thomas P. Lane (admitted pro hac vice) Email: tlane@winston.com WINSTON & STRAWN LLP 200 Park Avenue New York, New York 10166 Telephone: 212-294-6700 Facsimile: 212-294-4700 Jennifer A. Golinveaux (SBN 203056) Email: jgolinveaux@winston.com WINSTON & STRAWN LLP 101 California Street San Francisco, CA 94111 Telephone: 415-591-1506 Facsimile: 415-591-1400 13 18 Doc. 268 v. VEOH NETWORKS, INC, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07 5744 – AHM (AJWx) DEFENDANT VEOH NETWORKS, INC.’S EX PARTE APPLICATION FOR PROTECTIVE ORDER ALLOWING IT TO CEASE STORING CANCELLED VIDEO FILES [DECLARATIONS OF DAVID MULLER AND JENNIFER GOLINVEAUX IN SUPPORT THEREOF FILED CONCURRENTLY HEREWITH] 25 Discovery Cut-off: January 12, 2009 Pretrial Conference: April 6, 2009 Trial Date: April 21, 2009 26 Complaint Filed: September 4, 2007 27 28 DEFENDANT VEOH NETWORKS, INC.’S EX PARTE APPLICATION FOR PROTECTIVE ORDER ALLOWING IT TO CEASE STORING CANCELLED VIDEO FILES Case No. CV 07-5744 – AHM (AJWx) Dockets.Justia.com 101 California Street San Francisco, CA 94111-5894 Winston & Strawn LLP 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that pursuant to Local Rule 7-19, Defendant Veoh 3 Networks, Inc., (“Veoh”) hereby applies to the Court ex parte, for an order requiring 4 Plaintiffs to complete their review and copying of Cancelled Video Files no later than 5 December 20, 2008, at which time Veoh would be permitted to delete such files. 6 This ex parte application is brought on the grounds that Veoh is currently 7 expending tens of thousands of dollars every month to store copies of video files to 8 which it has terminated access (“Cancelled Video Files”). Veoh provided Plaintiffs 9 with access to these files in early September of this year. In an effort to resolve this 10 matter informally, Veoh explained to Plaintiffs the extreme financial burden it is 11 placing on the company to continue to store these files, and offered to continue to 12 store them for an additional reasonable time in order to allow Plaintiffs to complete 13 their review and copying of any files that Plaintiffs consider relevant to this action. 14 Plaintiffs refused to discuss with Veoh any reasonable accommodation to allow Veoh 15 to delete the Cancelled Video Files. 16 There is no practical purpose for Veoh to continue to store the Cancelled Video 17 Files. Plaintiffs are free to copy any files they consider relevant to this action. Ex 18 parte relief is necessary to allow Veoh to delete the Cancelled Video Files upon a 19 schedule that is reasonable and allows Plaintiffs to complete any review and copying 20 they consider necessary. Veoh regrets having to burden the Court with this issue, but 21 because Plaintiffs have categorically refused to discuss any reasonable 22 accommodation, Veoh needs the Court’s assistance to allow it to delete the Cancelled 23 Video Files without facing the threat of motion practice related to issues of spoliation. 24 This is an urgent matter, which if not resolved promptly will cost Veoh (a small 25 technology company), tens of thousands of dollars each month to continue storing the 26 Cancelled Video Files. 27 /// 28 /// i DEFENDANT VEOH NETWORKS, INC.’S EX PARTE APPLICATION FOR PROTECTIVE ORDER ALLOWING IT TO CEASE STORING CANCELLED VIDEO FILES Case No. CV 07-5744 – AHM (AJWx) 1 2 8 Steven A. Marenberg Elliot Brown Brian Ledahl Benjamin Glatstein IRELL & MANELLA LLP 1800 Avenue of the Stars, Ste. 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-719 Email: smarenberg@irell.com Email: ebrown@irell.com Email: bledahl@irell.com Email: bglatstein@irell.com 9 Counsel for UMG was provided notice that Veoh would file this ex parte 3 4 5 6 101 California Street San Francisco, CA 94111-5894 7 Winston & Strawn LLP The names, addresses, and telephone numbers of UMG’s counsel are as follows: 10 application if UMG refused to work with Veoh to resolve this matter informally. 11 Counsel for UMG indicated that UMG would oppose this ex parte application. 12 13 Dated: December 4, 2008 WINSTON & STRAWN LLP 14 15 16 By /s/ Jennifer A. Golinveaux Jennifer A. Golinveaux Attorneys for Defendant VEOH NETWORKS, INC 17 18 19 20 21 22 23 24 25 26 27 28 ii DEFENDANT VEOH NETWORKS, INC.’S EX PARTE APPLICATION FOR PROTECTIVE ORDER ALLOWING IT TO CEASE STORING CANCELLED VIDEO FILES Case No. CV 07-5744 – AHM (AJWx) 1 I. 101 California Street San Francisco, CA 94111-5894 Winston & Strawn LLP 2 INTRODUCTION Plaintiffs have approached discovery in this case in a manner quite clearly 3 aimed to place maximum financial pressure on Veoh, a small technology company 4 with limited resources. The issue raised in this application is a perfect example. Veoh 5 has been paying tens of thousands of dollars every month simply to maintain copies of 6 video files that it has taken down from public access on its system because they 7 violated Veoh’s policies (the “Cancelled Video Files.”) There is no business purpose 8 for Veoh to maintain such files, but it has done so in order to comply with its 9 obligations in this litigation. Veoh’s counsel explained to Plaintiffs the substantial cost 10 Veoh was incurring to do so, and asked Plaintiffs to work with Veoh to set up a 11 reasonable timeline within which Plaintiffs could complete their review of the 12 Cancelled Video Files, and Veoh could then cease paying to store them. Plaintiffs 13 categorically refused. 14 Plaintiffs have had access to Veoh’s Cancelled Video Files since early 15 September, and presumably have made copies of any file that they consider to be 16 relevant evidence in this lawsuit. There is no practical reason that Veoh should be 17 required to continue to pay substantial costs to store this very large quantity of data. 18 Veoh asks the Court to enter an order requiring Plaintiffs to complete their review and 19 copying of files no later than December 20, 2008, at which time Veoh would be 20 permitted to delete the Cancelled Video Files. 21 II. 22 FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs have always had access to the publicly available video files on Veoh, 23 and have always had the ability to copy any suspected infringing video files as 24 evidence in this case. The video files uploaded to Veoh are publicly available to any 25 user including Plaintiffs. With respect to videos to which Veoh had terminated access 26 (“cancelled”) for copyright or other reasons, Veoh provided Plaintiffs with secure 27 access to all of its video files including the Cancelled Video Files on September 5, 28 2008. Declaration of Jennifer A. Golinveaux (“Golinveaux Decl.”), ¶ 2. 1 DEFENDANT VEOH NETWORKS, INC.’S EX PARTE APPLICATION FOR PROTECTIVE ORDER ALLOWING IT TO CEASE STORING CANCELLED VIDEO FILES Case No. CV 07-5744 – AHM (AJWx) 1 2 the video files, Plaintiffs have badly misrepresented the issue. First, Plaintiffs claimed 3 that although they were able to access all of the video files in the file format in which 4 they were uploaded, Veoh failed to adequately provide access to all Flash format 5 versions of such files. Although Plaintiffs waited almost a month after receiving 6 access to Veoh’s video files to raise this issue, Veoh fully resolved the issue for 7 Plaintiffs within a week of their raising it. Golinveaux Decl., ¶ 3. 101 California Street San Francisco, CA 94111-5894 8 Winston & Strawn LLP While, in earlier filings, Plaintiffs claimed that Veoh hindered their access to Plaintiffs also claimed that Veoh “unilaterally terminated” their secure access to 9 the video files at one point. On October 9, 2008, more than a month after initially 10 providing Plaintiffs with access to the video files, Veoh’s counsel sent Plaintiffs’ 11 counsel an urgent email explaining that Plaintiffs’ software was using the secured 12 access Veoh had provided to access the video database in excess of 60 times per 13 second, which was overloading Veoh’s entire system. Golinveaux Decl., ¶ 4 and 14 Exhibit A. Veoh’s counsel asked Plaintiffs’ counsel to confirm whether Plaintiffs 15 were able to limit the access to one file per second, and explained that Veoh would 16 have to terminate Plaintiffs’ secure private access until the issue could be resolved. 17 Plaintiffs refused to respond at all for nearly two weeks. It took Veoh sending follow- 18 up letters, and finally threatening to bring the issue to the Court, before Plaintiffs 19 finally responded and agreed to abide by compromise access terms proposed by Veoh 20 (allowing Plaintiffs to access the video files ten times per second during off peak 21 hours and once per second during peak hours). Veoh restored Plaintiffs’ access that 22 same day. Golinveaux Decl., ¶ 5 and Exh. B. 23 On November 14, 2008, Veoh’s counsel wrote to Plaintiffs’ counsel and 24 explained that Veoh was expending significant resources maintaining Cancelled 25 Video Files in their native and Flash formats. Id., ¶ 6 and Exh. C. Veoh’s counsel 26 further explained that Veoh was willing to maintain the Cancelled Video Files for an 27 additional reasonable time in order to allow Plaintiffs time to complete their review, 28 and then needed to begin deleting the Cancelled Video Files. Veoh proposed 2 DEFENDANT VEOH NETWORKS, INC.’S EX PARTE APPLICATION FOR PROTECTIVE ORDER ALLOWING IT TO CEASE STORING CANCELLED VIDEO FILES Case No. CV 07-5744 – AHM (AJWx) 101 California Street San Francisco, CA 94111-5894 Winston & Strawn LLP 1 maintaining the files for an additional month. Id. On November 19, 2008, Plaintiffs’ 2 counsel responded and categorically refused to discuss any accommodation 3 concerning the Cancelled Video Files. Plaintiffs’ counsel curtly stated that “UMG 4 retains all rights and in no way agrees that Veoh may destroy evidence.” Id., ¶ 6 and 5 Exh. C. 6 III. ARGUMENT 7 A. Legal Standard 8 “[A] court may, for good cause, issue an order to protect a party or person from 9 annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 10 26(c). The order may forbid certain discovery or specify terms on which discovery 11 can be had. Id. Within Rule 26’s framework, courts have broad discretion to fashion 12 appropriate protective orders. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 13 (1984) (“Rule 26(c) confers broad discretion” to the court to decide what degree of 14 protection is required, and a court has “substantial latitude” to decide the proper scope 15 of a protective order). 16 B. 17 The Harm to Veoh If it is Required to Continue to Retain All Cancelled Video Files. 18 Since May 1, 2008, Veoh has paid tens of thousands of dollars a month to 19 purchase and maintain the additional storage space necessary to maintain copies of the 20 Cancelled Video Files for purposes of this litigation. Over the past six months, Veoh 21 has paid on average $80,000 per month for additional storage space and related set up 22 charges in order to maintain the files. Declaration of David Muller (“Muller Decl.”), ¶ 23 2. On an ongoing basis, Veoh will continue to pay on average $30,000 per month in 24 hardware and datacenter costs to continue to maintain the Cancelled Video Files. In 25 addition, the equivalent of one full-time employee is required to maintain this data. 26 Id., ¶ 3. 27 While these amounts may seem like a trifle to Plaintiffs, they are very 28 significant sums for a small start-up company. Numerous other courts have granted 3 DEFENDANT VEOH NETWORKS, INC.’S EX PARTE APPLICATION FOR PROTECTIVE ORDER ALLOWING IT TO CEASE STORING CANCELLED VIDEO FILES Case No. CV 07-5744 – AHM (AJWx) 101 California Street San Francisco, CA 94111-5894 Winston & Strawn LLP 1 necessary relief for parties faced with similar or even lower discovery expenses. See, 2 e.g., Graebner v. James River Corp., 130 F.R.D. 440, 441-42 (N.D. Cal. 1989) 3 (granting a protective order pursuant to “court’s broad discretion” upon finding that 4 the requested discovery, a single deposition, was “unfair and uneconomical” and 5 would subject the movant to “undue burden and expense”); Jones v. Goord, 2002 U.S. 6 Dist. LEXIS 8707, *32 (S.D.N.Y. May 15, 2002) (denying motion to compel 7 production of databases where “costs of the efforts required by plaintiffs’ requests 8 would,” as here, “be in excess of $100,000”); Echostar Communs. Corp. v. News 9 Corp. Ltd., 180 F.R.D. 391, 394 (D. Colo. 1998) (denying motion to compel where 10 affidavits proved that “the costs for the requested discovery ‘could easily run into the 11 tens (or hundreds) of thousands of dollars.’“) (citing affidavit). 12 There is no good reason to require Veoh to continue to pay these storage costs. 13 Plaintiffs have had access to the Cancelled Video Files for months, and Veoh is 14 willing to retain the files for an additional reasonable time to allow Plaintiffs to copy 15 any files they choose. In addition, on December 1, 2008, Plaintiffs finally identified 16 the alleged infringing videos for which they seek damages in this case, although they 17 purported to reserve the right to further supplement their identification. Golinveaux 18 Decl., Paragraph 7 (UMG's Response to Veoh's Interrogatory No. 25.) Veoh 19 respectfully requests that the Court issue an order requiring Plaintiffs to complete their 20 review and copying of the Cancelled Video Files no later than December 20, 2008, at 21 which time Veoh would be permitted to delete the files. 22 IV. 23 CONCLUSION For the foregoing reasons, the Court should grant Veoh’s application for a 24 protective order and issue an order requiring Plaintiffs to complete their review and 25 copying of the Cancelled Video Files no later than December 20, 2008, at which time 26 Veoh would be permitted to delete the files. 27 28 4 DEFENDANT VEOH NETWORKS, INC.’S EX PARTE APPLICATION FOR PROTECTIVE ORDER ALLOWING IT TO CEASE STORING CANCELLED VIDEO FILES Case No. CV 07-5744 – AHM (AJWx) 1 2 Dated December 4, 2008: 3 WINSTON & STRAWN LLP By: 4 /s/ Jennifer A. Golinveaux Attorneys for Defendant 5 VEOH NETWORKS, INC. 6 7 SF:221785.2 8 9 101 California Street San Francisco, CA 94111-5894 Winston & Strawn LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT VEOH NETWORKS, INC.’S EX PARTE APPLICATION FOR PROTECTIVE ORDER ALLOWING IT TO CEASE STORING CANCELLED VIDEO FILES Case No. CV 07-5744 – AHM (AJWx)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
