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Gordon & Rees LLP 275 Battery Street Suite 2000 Sen Francisca, CA 94111 Bow Sowa au KARINEH KHACHATOURIAN (SBN: 202634) JEFFREY M. RATINOFF (SBN 197241) GORDON & REES LLP 275 Battery Street, Suite 2000 San Francisco, California 94111 Telephone: (415) 986-5900 Facsimile: (415) 986-8054 Attorneys for Plaintiff EAGLE BROADBAND, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA EAGLE BROADBAND, INC., Plaintiff, DOES 1 through 25. Defendants, CASE NO. 1-05-CV-050179 PLAINTIFF EAGLE BROADBAND’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO PERMIT DISCOVERY REGARDING DEFENDANTS (DOES 2- 5) ANTI-SLAPP MOTIONS Date: February 23, 2006 Time: 9:00 a.m. Dept: 2 Judge: Hon. William J. Elfving Complaint Filed: October 5, 2005 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN JPPORT OF MOTION TO PERMIT DISCOVERY RE DEFENDANTS (DOES 2-5) ANTI-SLAPP MOTIONS. Gordon & Rees LLP Suite 2000 San Franciseo, CA 94111 275 Battery Street Sowa INTRODUCTION Eagle Broadband, Inc. (“Eagle Broadband”) has submitted overwhelming evidence opposition to Defendants’ (DOES 2-5) Anti-SLAPP motions to conclude that either the Anti- SLAPP statute does not apply here or that Eagle Broadband has a probability of suecess on its claims. Nonetheless, should the Court require additional evidence to deny Defendants’ (DOES 2-5) Anti-SLAPP motions, Eagle Broadband hereby requests that the hearing on Defendants? (DOES 2-5) Anti-SLAPP motions be continued for six months to allow Eagle Broadband sufficient time to obtain additional evidence to support its opposition as well as provide supplemental briefing to the Court ARGUMENT A. — Calfornia Law Permits Eagle Broadband To Obtain Discovery Necessary To Oppose An Anti-SLAPP Motion. California law is clear that a plaintiff opposing an Anti-SLAPP motion may seek an order permitting discovery and a continuance of the hearing upon good cause. See e.g. Lafayette Morehouse, Inc. v. Chronicle Pub. Co., 37 Cal.App. 4" 855, 867 (1995)(rev'd on other grounds); Robertson v, Rodriguez, Cal. App. 4" 347, 357 (1995); accord Cal. Civ. Proc. Code § 425.16(g) (The court, on noticed motion and for good cause shown, may order that specific discovery be conducted notwithstanding this subdivision”). To establish good cause, a plaintiff must show (1) that a defendant possesses evidence needed by Plaintiff to establish a prima facie case and (2) an explanation of the additional facts plaintiff expects to recover. See 1-800 Contacts, Inc. v. Sternberg 107 Cal.App.4" 568, 593 (2003). As is discussed more fully below, Eagle Broadband seeks information directly related to the issues raised by Defendants’ (DOES 2-5) Anti-SLAPP motions B, The Discovery Eagle Broadband Seeks Is Directly Related To The Issues Raised By Defendants’ (DOES 2-5) Anti-SLAPP Motions. ‘The parties agree that Defendants DOES 2-5 have the initial burden to establish that the Anti-SLAPP statute applies in this case and if they meet their burden, it then becomes Plaintif?’s burden to show a probability of success on its claims. Cal. Civ. Pro. §425.16(b); DOES 2-3 Mot. at 2:6-17; DOES 4-5; Mot. at 5:9-17. The discovery Eagle Broadband seeks is specifically targeted to those issues. PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO PERMIT DISCOVERY RE DEFENDANTS (DOES 2-5) ANTI-SLAPP MOTIONS, 1S Battery Suet Suite 2000 San Francisco, CA 94111 Gordon & Rees LLP sen i 12 13 14 15 16 17 18 19 20 21 2 2B 24 25 26 27 28 1 Application of The Anti-SLAPP Statute. In order to establish that the Anti-SLAPP statute applies, Defendants DOES 2-5 must prove that the Yahoo! Finance Message Board is a public forum and that the postings at issue are protected by a constitutional right to discuss a matter of public interest. Cal. Civ. Proc. § 425.16(e)(3). Although Eagle Broadband believes it has submitted sufficient evidence to establish that the Anti-SLAPP statute does not apply here, should the Court disagree, Eagle Broadband requests discovery concerning DOES” 2-5 identities and employment information to determine whether the Section 425.17(c) exception to the Anti-SLAPP statute applies here. California Code of Civil Procedure section 425.17(c) specifically states that claims against a person or entity primarily engaged in the business of selling or leasing goods or services is not subject to the Anti-SLAPP statute if the following elements are met. First, the statement or conduct consists of representations of fact about that person's or a competitor's business operation, goods or services. Second, the statement or conduct occurred in connection with a commercial transaction. Third, the intended audience is an actual or potential customer or person likely to influence an actual or potential customer. ‘As discussed more fully in Eagle Broadband’s Consolidated Opposition to Defendants’ DOES 2-5 Anti-SLAPP motions, Eagle Broadband’s claims likely fall within this Anti-SLAPP exception if the posters are Eagle Broadband competitors or sell securities. Neither Eagle Broadband nor this Court can determine the applicability of this exception without learning the personal identities and employment information for DOES 2-5. Likewise, Eagle Broadband further requests discovery from Yahoo! about the controls it sets in place on the use of its Finance Message Board for Eagle Broadband and any complaints and restrictions it has placed on DOES 2-5 to establish that the Yahoo! message board is not a public forum. See Wilbanks v. Wolk, 121 Cal.App. 4" 883 (2004). The discovery Eagle Broadband seeks should be permitted because the information would directly impeach Defendants’ statements that any one can have unfettered access to the Yahoo! message boards at any time without restriction. Accordingly, Eagle Broadband’s request should be granted. 2 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO PERMIT DISCOVERY RE DEFENDANTS (DOES 2-5) ANTI-SLAPP MOTIONS,