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a 2000 Su CA 9411) Goidon & Rees LLP Embarcadero Ce 275 Batt ‘ i 7 _ a 1 || KARINEH KHACHATOURIAN (SBN: 202633) IM@ i 1 ret | JEFFREY M. RATINOFF (SBN 197241) 2 || GORDON & REES LEP 275 Batiery Street, Suite 2000 3 || San Francisco, California 94111 Telephone: (415) 986-5900 4 || Facsimile: (415) 986-8054 ay 5 || Attomeys for Plainn it s EAGLE BROADBAND, INC. ‘ Ruetng 6 7 a SUPERIOR COURT OF THE STATE OF CALIFORNIA o IN AND FOR THE COUNTY OF SANTA CLARA 10 11 | EAGLE BROADBAND, INC., ) CASE NO. 1-05-CV-050179 ) 2 ) PLAINTIFF EAGLE BROADBAND’S a Plaintiff, ) REPLY TO DEFENDANT DOES 2-3 3 ) OPPOSITION TO PLAINTIFF'S }) MOTION TO PERMIT DISCOVERY 1a v ) REGARDING DEFENDANTS (DOES 2-5) ) ANTI-SLAPP MOTIONS z 15 |) DoES 1 through 25, ) Date: February 23, 2006 16 ) Time: 9:00 am. | } Dept: 2 a Defendants. Judge: Hon. William J. Elfving ) o }) Complaint Fited: October 5, 2005 9 BY FAX bu TRODUCTION ay DOES 2-3 (“Defendants”) opposition to Eagle Broadband, Inc.'s (“Eagle Broadband”) 22 |] motion to permit discovery actually suppons Plaintiff"s request for discovery. Defendants 23 || concede that Plaintiff is entitled to discovery whea an anti-SLAPP motion is pending in order 10 24 || permit resolution of the issues raised therein. Defendants further concede that Plaintiff does not 25 || have the information it currently seeks in its possession. Since the discovery Plaintiff seeks is 26 || directly related to the issues raised in Defendants anti-SLAPP motions, i.e. whether the anti- 27 || SLAP statue even applies here and the determination of Plaintiff's probability of success on 28 | the merits, it is beyond debate that Plaintiffs motion should be granted, “le PLAINTIFF'S REPLY TO DEFENDANTS" (DOES 2-3) OPPOSITION TO neaig2e-21420091.0117AN PLAINTIFF'S MOTION TO PERMIT DISCOVERY RE ANTI-SLAPP MOTIONS u 000 2 West 13 14 Gordon & Rees LLP Embarcadero Ce 78 Watie'S 15 16 17 18 19 20 DISCUSSION A Defen ument That Plaintiff Is Not Eptitled ro Seek The Identiti DORS 2-3 Due To Their Right To Privacy Is Untenable. ‘Without any legal authority, Defendants DOES 2 and 3 argue for the first time that Plaintiff does not have the right to determine whether DOES 2 and 3 are competitors because ‘that would violate their right to privacy. Defendants’ argument makes no sense. Defendants have chosen to file an anti-SLAPP motion in response to Plaintiff's complaint and it is their burden to establish that the anti-SLAPP statute applies here. The California Legislature specifically carved out an exception to conduct committed by competitors. The only way to resolve the issue as to whether the exception applies here is to discover the identities of the DOES. That was the entire purpose of the Yahoo! subpoena served by Eagle Broadband that started this entire chain of events. The discovery Plauntiff seeks is specifically targeted to a threshold issue raised by Defendants’ motion, that is whether the anti-SLAPP statute even applies. Thus, Plaintiff's request for this narrow discovery should be granted. Otherwise, Defendants’ anti-SLAPP motion must be denied for failure to meet their burdea that the stature applies. Moreover, even if the Coun were to determine that DOES 2-3 had a right to pnvacy, Defendants” position is undermined by the fact that DOE 3 has already waived that right since his identity is known and posted on the internet as Daniel Berger and Plaintiff'has amended the complaint to include his identity and Mr. Berger has accepted service of the amended complaint, Moreover, in opposition to Plaintiff” request for discovery, DOES 4-5 directly contradict Defendants’ position as they have revealed their identities to the Cour, thus stating at least implicitly that che information sought is necessary and not privileged. Accordingly, Plaintiff's request should be granted. B. Defendants? ent That Plaintiff Is Not Entitled To Discovery Because Alas to Prove Actual Malice As A Public Figure Is Equally Unsupported. Defendants argue that the discovery requests outlined by Plaintiff's expert is irrelevant 10 the resolution of the anti-SLAPP motion because the informarion sought is untelated to proving 2 PLAINTIFF'S REPLY TO DEFENDANTS’ (DOES 2-3) OPPOSITION 10 \nezg24-4miB ALTA PLAISTIEP'S MOTION TO PERMIT DISCOVERY RE ANTHSLAPP MOLIONS t+ | 1 |} actual malice as a public figure defamation plaintiff. Defendants miss the pomt. As outlined in 2 || Plaintiti’s opposition, Plaintiff does not have to establish actual malice, but even if it did, that 1s purely subjective question. See Ampex Corp. v. Cargle, 128 Cal.App.4 1569, 1579 (2005). 4 |/ Thus, whether under Defendants’ portrayal of the case or Plaintiff's, discovery is warranted as 5 || the unformation sought goes directly to whether Plaintiff has a probability of success on the 6 || ments. 7 C. Whether the Yahoo! Finance Board Is A Public Forum Requires A Factual 4 Determination 9 Defendants contend Plaintiff's request for discovery concerning the control measures 10 |} Yishoo! imposes 1s unnecessary because the public forum status is a legal matter. To the 11 |} contrary, as discussed in Plaintiff's opposition to the anti-SLAPP motions, even in the cases a FEE 12 || cited by Defemtams, each court has conducted a factual analysis concerning the contls set in i 5 7 8 13 |] place by the message boards or websites. See e.g. Computerpress v. Jackson, 93 Cal, App. 4 243 14 || 993, 1007 (2001) Electronic communication may constitute public forums . .. unlike many 3 ia 5 15 || wraditional media, there are no controls on postings.”) There are no bright le rules and each 16 || case is fact specific. Jd, Plaintiff has provided whatever publicly available information 17 |] concerning these restrictions on postings that exist on the Yahoo! website. Since Defendants are 18 || challenging the sufficiency of this information, and Plaintiff cannot obtain this discovery 19 |} trough Yahoo! because of Defendants" objection, Plaintiff requires this discovery to resolve the 20 |] issue for the court to determine whether the anti-SLAPP starute even applies in this case. Since 21 |) this very issue is currently before the California Supreme Court in Barrett . Rosenthal, iis 22 || simply inaccurate for Defendants to argue that this issue is resolved. Accordingly, the discovery 23 || Plamuff seeks should be granted. 24 D. Discovery Concerning The Short And Distort Scheme Is Directly Related To e Issues Defendants’ (DOES 2-3) Auti-SLAPP Motion, 25 In its papers, DOES 2-3 argue that Plainniff does not have a probability of suecess on the 26 || merits because California Business and Professions Code § 17200 does not reach secuites 7 |lsransactions. DOES 2-3 Motion ax p.5, DOES 2-3 further argue thar asa consequence, “itis 28 unlikely that Plaintiff can prevail on the merits.” DOES 2-3 Mot. at 6:4. Obviously, Plaintiff 3 PLAINTIFF'S REPLY TO DEFENDANTS’ (DOES 2-3) OPPOSITION TO To7e2t-an4neiitii7ay—-PLABNTIFF’S MOTION TO PERMIT DISCOVERY RE ANTI-SLAPP MOTIONS