Case 6:12-mc-00017-C Document 5 Filed 12/10/12

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS SAN ANGELO DIVISION MALIBU MEDIA, LLC, PATRICK COLLINS, INC. AND THIRD DEGREE FILMS, Plaintiffs VS. VERIZON ONLINE, LLC, Defendant

Civil Action No. 6:12-MC-17

BRIEF IN SUPPORT OF MOTION FOR LEAVE TO CONDUCT DISCOVERY AND FOR LEAVE TO SUPPLEMENT RESPONSE TO MOTION TO ENFORCE
TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Verizon Online, LLC, submits the following arguments and authorities in support of its Motion for Leave to Conduct Discovery and for Leave to Supplement Response to Motion to Enforce: Background Verizon would refer the Court to the Plaintiffs Motion to Enforce and Verizons response to such motion for an understanding of the background of the issues involved. Purpose and Need for Discovery Verizon is aware that its request to be allowed to conduct discovery from Plaintiff under these circumstances is unconventional, however, the circumstances of this case are uncoventional as well. As discussed in Verizons response to the Motion to Enforce, the Plaintiffs appears to seek discovery in an effort to pursue a scheme which, if not illegal, is at a

Brief in Support of Motion for Leave to Conduct Discovery

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minimum of a type to which the courts should not lend their powers and support. The circumstances are also unusual because the persons are subject to potential abuse by the Plaintiffs approach are unlikely to be able, for financial reasons, personal reasons, or Plaintiffs tactical approach to those who do actively oppose them, to effectively oppose the Plaintiffs oppressive and unfair methods. For these reasons it is important that the Court allow Verizon to conduct discovery and develop a complete factual record which will allow the Court to make an informed decision on the propriety of permitting the discovery sought by Plaintiffs.. Verizon intends, among other things, to seek discovery from the senior level managers of the Plaintiffs and from the persons affiliated with the Plaintiffs whose declarations have been used to support the Plaintiffs requests for discovery. Verizon further intends to seek discovery into the business model of Plaintiffs and whether the Plaintiffs are good faith publishers of the material they purportedly seek to protect as opposed to whether Plaintiffs business model is primarily profit from their aggressive and abusive copyright enforcement efforts. Allowing Verizon to develop these issues through discovery is warranted, in addition to the reasons stated above, by the fact that these are important issues with great significance in todays internet society. Plaintiffs tactics appear to be much like those of schoolyard bullies who push and shove until firm opposition is met when they shrink away. Plaintiffs, and those like them, have apparently avoided having to deal with these issues by not pursuing those who would raise these issues.

Brief in Support of Motion for Leave to Conduct Discovery

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Authority of Court to Permit Discovery Courts possess inherent equitable power over their own process, to prevent abuses, oppression, and injustices involving discovery. Seattle Times Co. v. Rinehart, 467 U.S. 20, 35 (1984). This case presents an appropriate occasion to exercise such powers in the interest of resolving issues and avoiding abuse which otherwise may not be effectively prevented otherwise. RESPECTFULLY SUBMITTED, BOERNER, DENNIS & FRANKLIN, PLLC P. O. Box 1738 Lubbock, Texas 79408 (806) 763-0044 (806) 763-2084 (fax)

s/ Don C. Dennis
Don C. Dennis SBN 05749400 Email: dcdennis@bdflawfirm.com MORRISON & FOERSTER, LLP 555 West Fifth Street Los Angeles, California 90013 (213) 892-5200 (213) 892-5454 (fax) Benjamin J. Fox Giancarlo Urey COUNSEL FOR VERIZON ONLINE, LLC

Brief in Support of Motion for Leave to Conduct Discovery

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Certificate of Service I hereby certify that on December 10, 2012 I electronically filed the foregoing document with the clerk of the court for the United States District Court for the Northern District of Texas using the electronic case filing system of the court. The electronic case filing system sent a Notice of Electronic Filing to the following attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means: Hao Ni Ni Law Firm 8140 Walnut Hill Lane, Suite 310 Dallas, Texas 75231 I hereby certify that I have served the foregoing document by mailing a copy to the following individuals: Hao Ni Ni Law Firm 8140 Walnut Hill Lane, Suite 310 Dallas, Texas 75231

s/ Don C. Dennis

M:\Verizon\Brief in Support of Req for Discovery rev 12-10-12.wpd (12-10-12)

Motion for Leave to Conduct Discovery

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