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Case 2:13-cv-04253-MWF-AJW Document 57 Filed 03/17/14 Page 1 of 7 Page ID #:1766

1 Louis A. Karasik (Cal. Bar # 100672) Alston & Bird LLP 2 333 South Hope Street, 16th Floor Los Angeles, CA 90071-3004 3 Telephone: (213) 576-1148 Facsimile: (213) 576-1100 4 Email: lou.karasik@alston.com 5 Brendan V. Sullivan (Pro Hac Vice) Tobin J. Romero (Pro Hac Vice) 6 Joseph M. Terry (Pro Hac Vice) Jonathan B. Pitt (Pro Hac Vice) 7 Williams & Connolly LLP 725 Twelfth Street, N.W. 8 Washington, DC 20005 Telephone: (202) 434-5000 9 Facsimile: (202) 434-5029 Email: jpitt@wc.com 10 Counsel for Defendants News 11 Corporation, NI Group Limited f/k/a News International Limited, News Group 12 Newspapers Limited 13 14 15 16 17 18 v. 19 NEWS CORPORATION, NI GROUP 20 LIMITED f/k/a NEWS INTERNATIONAL LIMITED, NEWS 21 GROUP NEWSPAPERS LIMITED, and JOHN and JANE DOES 1-10, 22 Defendants. 23 24 25 26 27 28
SUPPLEMENTAL BRIEFING PURSUANT TO THE COURTS FEBRUARY 25, 2014 ORDER
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EUNICE HUTHART, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-4253 MWF (AJWx) Honorable Michael W. Fitzgerald DEFENDANTS SUPPLEMENTAL BRIEFING PURSUANT TO THE COURTS FEBRUARY 25, 2014 ORDER [FED. R. CIV. P. 12] [Filed concurrently with Third Declarations of Christa Jane Band and Craig Wyndham Orr QC and First Declaration of Joseph M. Terry] Date: Time: Courtroom: February 24, 2014 10:00 a.m. 1600

Complaint Filed: June 13, 2013

Case 2:13-cv-04253-MWF-AJW Document 57 Filed 03/17/14 Page 2 of 7 Page ID #:1767

Defendants make this submission in response to the Courts request for

2 supplemental briefing as to whether the United Kingdom remains an available forum 3 for Hutharts claimsin particular, whether: (1) Hutharts claims would be accepted 4 into the Mobile Voicemail Telephone Interception Litigation (MTVIL) if filed after 5 the January 31, 2014 cut-off for inclusion in the Second Tranche of consolidated 6 claims; and (2) Huthart would still have a forum for pursuing her claims in England 7 even if those claims were not included in the MTVIL. 8 The answer to both questions is, quite clearly, yes. The MTVIL remains

9 open and will continue to be open for the foreseeable future. Any suggestion to the 10 contrary is incorrect. And although Ms. Huthart, by virtue of her own decisions, has 11 missed the deadline for having her claim tried in October 2014 along with certain 12 cases in the Second Tranche of the MTVIL, the only effect of that, if any, would be 13 to cause her claims to be set for trial at a later datenot to prevent her claims from 14 being heard under the MTVIL procedures. Moreover, even if Hutharts claims for 15 some reason could not proceed within the structure of the MTVILwhether because 16 she tarried in filing them in her home forum or because they did not fall within the 17 ambit of the MTVILshe would remain free to pursue her claims under the ordinary 18 Civil Procedure Rules of the English High Court. There is, in reality, no possibility 19 that Ms. Huthart would be precluded from having her claims adjudicated in an 20 English Court. 21 I. 22 23 HUTHARTS CLAIMS WOULD BE ADJUDICATED WITHIN THE MTVIL. The MTVIL is not a separate venue, but an umbrella management structure

24 established by the Chancery Division of the High Court of Justice of England and 25 Wales (the High Court) for the purpose of handling claims like Ms. Hutharts that 26 are filed in the High Court. Third Declaration of Christa Jane Band (Third Band 27 Decl.), attached hereto, at 5. The rules of the MTVIL are purely administrative 28
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SUPPLEMENTAL BRIEFING PURSUANT TO THE COURTS FEBRUARY 25, 2014 ORDER
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1 and procedural.

The arrangements made under the MTVIL do not affect a

2 claimants substantive right to bring a claim against News Group News (NGN) or 3 other News Corporation or News International defendants in England. Third

4 Declaration of Craig Wyndham Orr (Third Orr Decl.), attached hereto, at 11. 5 Similarly, the MTVIL procedures do not impose any substantive cut-off date for the 6 filing of claims. Third Band Decl. 7, 10. 7 Nevertheless, during oral argument on this Motion, counsel for Ms. Huthart

8 raised the specter that if her U.S. claims were dismissed, she might be unable to 9 pursue her claims in an English Court, either because the most recent tranche of 10 MTVIL claims has now closed or because she has named NI and News Corporation 11 as defendants, in addition to NGN. That assertion is wrong in both respects. 12 13 A. THE MTVIL REMAINS OPEN TO HUTHART.

The MTVIL is not closed and is unlikely to close in the near future. See Third

14 Band Decl. 7, 10, 11. No application has even been made to close the process. 15 Id. 7. What has closed is simply the most recent tranche of MTVIL claims, 16 which affects only when Ms. Hutharts claims would be heard in the MTVIL, not 17 whether they would be heard. Id. 18 Claims brought under the MTVIL have thus far been grouped together in

19 tranches; for trial-management purposes each tranche had a cut-off dateotherwise 20 new claims would keep pouring into the tranche and the trial of that tranche would 21 be delayed continually. Id. The cut-off date for the second tranche was January 31, 22 2014. Id. Certain of the claims in the Second Tranche are set for a four-week trial in 23 October 2014; the balance of Second Tranche claims will be tried at a later date. 24 Third Band Decl. 8; Third Orr Decl. 8. 25 26 27 28
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SUPPLEMENTAL BRIEFING PURSUANT TO THE COURTS FEBRUARY 25, 2014 ORDER
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Because Ms. Huthart chose not to file her claim in England before January 31,

2 2014, absent order of the court 1 it will not be included for trial with the Second 3 Tranche and will instead be tried at a later date. Third Orr Decl. 8; Third Band 4 Decl. 8. That has no effect, however, on whether her claim will ultimately be 5 heard: 6 7 8 9 10 There is no possibility of Ms Hutharts claim being rejected by the High Court on the ground that it was not commenced before 31 January 2014. That date was simply set as a cut-off date for

determining which claims were to be within the October 2014 trial from a case management perspective.

11 Third Orr Decl. 10. 12 Just as plaintiffs who failed to file in time for the First Tranche did not lose

13 their right to pursue their claims in the Second Tranche, Hutharts failure to file in 14 time for the Second Tranche does not affect her right to have her claims ultimately 15 heard, whether they end up being grouped with the balance of Claims in the Second 16 Tranche, grouped with claims in a possible Third Tranche, or proceed on their own: 17 18 19 20 21 22 23 24 25 26 27 28 There remains a possibility that Ms. Huthart could have her claims included as part of the Second Tranche. She may still apply for an Order permitting her claim to be included with that tranche. Third Band Decl. 9. The MTVIL Order expressly provides that claimants will retain liberty to apply to have the stay lifted, and the Defendants have agreed to consent to such an order. Third Orr Decl. 9; Third Band Decl. 9. But again, if her claims were not included in the Second Tranche, that would merely affect the timing of when her claims would be heard, it would not affect her right to have those claims heard. Third Band Decl. 9 (Even if Ms Hutharts claims were not included in the October trial, it would still be heard by the Court at a time to be directed by the Court).
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SUPPLEMENTAL BRIEFING PURSUANT TO THE COURTS FEBRUARY 25, 2014 ORDER
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That she chose not to do so does not mean that her claim will not be heard. It would proceed to trial and judgment in accordance with a process to be ordered by the Court, whether as part of the balance of cases in the Second Tranche that were not selected for the October 2014 trial, a Third Tranche of claims, or whatever other mechanism is
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ultimately decided upon by [the presiding Justice]. But in any event, her claim would be heard.

3 Third Band Decl. 8. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 News Corporation has consented to jurisdiction in the courts of England for the purposes of Hutharts claims (Zweifach Decl. 3) and English courts would 27 exercise jurisdiction over each of the Defendants (First Declaration of Craig Wyndham Orr (First Orr Decl.) 22-27). 28 26
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B.

HUTHARTS CLAIMS QUALIFY FOR INCLUSION IN THE MTVIL.

There is no merit to Hutharts suggestion that the MTVIL process would be closed to her because she has named News Corporation and NI as defendants. Her claims as against all Defendants qualify for inclusion in the MTVIL, Third Band Decl. 6; Third Orr Decl. 5 & n.1; id. 12, and each Defendant is subject to the jurisdiction of English Courts, whether by express consent or otherwise.2 The terms for inclusion in the MTVIL are set forth in paragraph 17 of the High Courts April 20, 2012 Order, attached as Exhibit 1 to the First Declaration of Joseph M. Terry (Terry Decl.). A claim be included if it: (i) is a claim for misuse of private information, breach of confidence, harassment, or violations of data protection law; (ii) arises in whole or in part from (a) the activities of Glen Mulcaire and/or associates pursuant to instructions from employees of NGN and/or (b) activities undertaken by or on behalf of employees of NGN; (iii) arises from, inter alia, the alleged accessing of telephone voicemails; and (iv) complains of conduct alleged to have occurred prior to August 1, 2011. Id.; see also Third Orr Decl. 5, n.1. Hutharts complaint qualifies in every respect. See, e.g. Complaint 4, 12-21, 5255, 60-61; see also Third Band Decl. 6. Nothing in the Order precludes claims against defendants other than NGN or excludes them from the scope of the MTVIL. In fact, claimants have named defendants other than Mulcaire and NGN in other cases filed under the MTVIL. Third Band Decl. 6. Accordingly:
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[I]f Ms Huthart were to bring a claim in England against NGN, News Corporation and News International Limited based on the phone hacking allegations made in the Complaint currently pending in this Court, her claim against all three defendants would be subject to the MTVIL and would proceed in accordance with the directions established by the High Court pursuant to that scheme.

7 Third Orr Decl. 13; see also Third Band Decl. 6. 8 II. 9 10 HUTHART MAY PURSUE HER CLAIMS IN THE ENGLISH COURTS EVEN IF THEY DO NOT QUALIFY FOR THE MTVIL. Hutharts claims would proceed in the MTVIL if filed in England, but even if

11 it were otherwise, she would still be free to vindicate her rights in the English Courts. 12 Indeed, she has an absolute right pursuant to the European Convention on Human 13 Rights to have her claims heard. Third Orr Decl. 11; First Orr Decl. 7. Article 6 14 of the European Convention on Human Rights, which applies in the UK, provides 15 that: In the determination of his civil rights and obligations , everyone is entitled 16 to a fair and public hearing within a reasonable time by an independent and impartial 17 tribunal established by law. Id. Nothing in the MTVIL vitiates that right. Third 18 Orr Dec. 11; Terry Decl. Ex. 1 (MTVIL Order). 19 Practically speaking, if the MTVIL were terminated before Huthart could file

20 her claim, or if her claim somehow did not fit into the MTVIL, Hutharts claims 21 would proceed as they would have before the institution of the MTVIL, or as 22 ordinary non-MTVIL cases proceed every day in English Courtsunder the 23 ordinary Civil Procedure Rules of the High Court: 24 25 26 27 28
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If a claim does not qualify for inclusion in the MTVIL, it will be able to be brought in any division of the High Court in the normal way. There is nothing in any of the MTVIL Orders restricting (or

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purporting to restrict) a litigants right to bring and pursue such claims in the English Courts.

3 Third Orr Decl. 7; see also Third Band Decl. 11. 4 As such, there is no risk that Huthart would be unable to pursue her claims in

5 English Courts, whether through the MTVIL or otherwise. 6 7 CONCLUSION There is no question that the Courts of Ms. Hutharts home country remain

8 open to her, would exercise jurisdiction over the Defendants, and provide remedies 9 for the wrongs alleged. For these, as well as all the other reasons discussed in the 10 Memorandum and Reply Memorandum in Support of Defendants Motion To 11 Dismiss, Defendants respectfully submit that Ms. Hutharts claims should be 12 dismissed pursuant to the doctrine of forum non conveniens with instructions to 13 refile, if at all, in the Courts of England and Wales. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: March 17, 2014 ALSTON & BIRD LLP By: /s/Louis A. Karasik Louis A. Karasik (Bar # 100672) Counsel for Defendants News Corporation, NI Group Limited f/k/a News International Limited, News Group Newspapers Limited WILLIAMS & CONNOLLY LLP By: /s/Brendan V. Sullivan Brendan V. Sullivan (pro hac vice) Tobin J. Romero (pro hac vice) Joseph M. Terry (pro hac vice) Jonathan B. Pitt (pro hac vice) Counsel for Defendants News Corporation, NI Group Limited f/k/a News International Limited, News Group Newspapers Limited

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