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Gordon & Rees LLP ‘Embarcadero Center West 1 || KARINEH KHACHATOURIAN (SBN: 202634) JEFFREY M. RATINOFF (SBN 197241) 2 || GORDON & REES LLP 275 Battery Street, Suite 2000 3 || San Francisco, California 94111 Telephone: (415) 986-5900 4 ||Facsimile: (415) 986-8054 5 || Attorneys for Plaintiff EAGLE BROADBAND, INC. ' 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SANTA CLARA. 10 11 || EAGLE BROADBAND, INC., ) CASENO, 1-05-CV-050179 2 2 RE 12 ) PLAINTIFF EAGLE BROADBAND’S ae Plaintiff, ) REPLY TO DEFENDANT DOES 4-5 26 13 ) OPPOSITION TO PLAINTIFF'S 2g ) MOTION TO PERMIT DISCOVERY ea 4 v. ) REGARDING DEFENDANTS (DOES 2- Zé, ) 5) ANTI-SLAPP MOTIONS as ) g° DOES 1 through 25, ) Date: February 23, 2006 16 ) Time: 9:00 am. ) Dept: 2 7 Defendants. ) Judge: Hon. William J. Elfving ) 18 ae } Complaint Filed: October 5, 2005 19 20 INTRODUCTION a ‘The points raised in DOES 4-5 (“Defendants”)opposition to Eagle Broadband, Inc.”s 22 || (“Eagle Broadband”) motion to permit discovery actually supports Plaintiff's request. 23 || Defendants concede that the information Plaintiff seeks is evidence directly related to Plaintiff's 24 || prima facie case that is only in their possession. Defendants argue however, that the need for 25 || this discovery is eliminated by its agreement to provide the “relevant” information. It is 26 || fundamentally unfair to allow Defendants to use the stay on discovery in this case as a sword and 27 || a shield when Eagle Broadband’s complaint is subject to dismissal this early in the proceedings. 28 || Now that Defendants have opened the door, this Court cannot now tie Plaintiff's hands and “le PLAINTIFF'S REPLY TO DEFENDANTS" }OES 4-5) OPPOST Gordon & Rees LLP ‘Embarcadero Center West 275 Battery Street, Suite 2000 San Francisco, CA 94111 ane 12 13 4 15 16 7 18 19 20 2 22 23 24 25 26 27 28 ‘prevent them from discovering the inevitable truth that Defendants are in some way participating ina short and distort scheme before this case has even begun. Without any discovery at all, Plaintiff has managed to submit overwhelming evidence, including a declaration from an independent expert, that it is a legitimate plaintiff and will ultimately prevail on the merits of its claims. Defendants, too proud to recognize that Eagle Broadband’s case is unique and different from any other case potentially subject to the anti-SLAPP statute, continues to stubbornly oppose Plaintiff's efforts. As a result, since the discovery Plaintiff seeks is directly related to the issues raised in Defendants’ anti-SLAPP motions, i.e. whether the anti-SLAPP statute even applies here and the determination of Plaintiff's probability of success on the merits, and Defendants’ continue to refuse to cooperate, it is beyond debate that Plaintiff's motion should be granted. DISCUSSION Plaintiff's Request For Discovery Is Consistent With The Purpose of the Anti-SLAPP Statute, Defendants DOES 4-5 contend that Plaintiff's request for discovery should be denied because it contravenes the purpose of the anti-SLAPP statute, which is to provide a mechanism for “a fast and inexpensive unmasking and dismissal of SLAPP’s.” DOES 4-5 Motion at 1:15- 16, In making this argument, Defendants attempt to give the misimpression that the courts, in adjudicating anti-SLAPP motions, are hostile to the idea of allowing discovery or that the anti- SLAPP statute itself prohibits discovery. Defendants’ assertion is simply not true, As recognized by several courts, the anti-SLAPP procedures were designed so that legitimate claims like Eagle Broadband’s complaint would not dismissed merely because they were tested at an early stage in the proceedings when the plaintiff had only a limited opportunity to conduct discovery. See eg. Wilcox v. Superior Court, 27 Cal.App. 4" 809, 823 (1994). Recognizing discovery is usually the most time-consuming and expensive aspect of pretrial litigation, the Legislature sought to balance the need to protect defendants with the need to permit legitimate plaintiffs to conduct necessary discovery before their suits are subjected to | dismissal for failure to establish a prima facie case, See Slauson Partnership v Ochoa, 112 | Cal. App. 4" 1005, 1021 (2003) (holding factual development contemplated by the anti-SLAPP 1S lopm PLAINTIFF'S REPLY TO DEFENDANTS" (DOES 4-5) OPPOSITION TO Gordon & Rees LLP. ‘Embarcadero Center West 275 Baitery Street, Suite 2000 1 San Francisco, CA 941 we aA a © 10 i 12 13 14 15 16 17 18 19 20 a 22 23 24 25 26 21 28 statute, and not expressly prohibited by it.) That is why the anti-SLAPP statute specifically allows for discovery to be taken for good cause shown. Code Civ. Proc. § 425.16(g). A blanket denial of discovery would simply deprive every plaintiff of its due process rights. Accordingly, denying Eagle Broadband’s request for discovery would contravene the intent of the Legislature to allow legitimate plaintiffs such as Eagle Broadband the right to discovery before its suit is subject to dismissal. B. By Opening The Door To Discovery, Defendants’ Have Waived Any Objection To Plaintiff's Motion. Defendants argue that Plaintiff's need for discovery is eliminated because DOES 4-5 will provide their identities, occupations, and state in their declarations that they have not participated ina “short and distort scheme.” DOES 4-5 Opp. at 3: 15. By agreeing to provide certain information, Defendants acknowledge at least implicitly that such discovery is necessary, In light of Defendants’ position, they cannot now seriously argue that Plaintiff is not entitled to this discovery. Moreover, while Defendants’ agreement to provide a controlled form of the information sought is obviously helpful, it does not eliminate Plaintiff's need in its entirety. Defendants do not get to pick and choose what information they provide and what they withhold. To the contrary, Plaintiff is entitled to test the sufficiency of any statements made or documents provided by DOES and seck alternative information in support of its claims. Its inherently unfair for the Court to allow Defendants to submit factual evidence in support ofits anti-SLAPP motion and at the same time, tie PlaintifP's hands and deny it the opportunity to seek alternative information in support of its case. This is particularly true when the information Defendants have agreed to provide is the very kind of information Eagle Broadband sought from Yahoo! for which the Defendants’ objected and triggered the instant chain of events, Since Defendants have agreed to provide general categories of information, this Court should allow Plaintiff's discovery to go forward. - C. Good Canse Exists To Lift The Stay On Discovery, ‘Defendants argue that Plaintiff has not shown good cause to obtain the discovery it seeks Ea PLAINTIFF'S REPLY TO DEFENDANTS’ (DOES 4-5) OPPOSITION TO