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1 Norman Siegel, Pro Hac Vice nsiegel@stellp.com 2 Saralee Evans, Pro Hac Vice sevans@stellp.com 3 Herbert Teitelbaum, Pro Hac Vice hteitelbaum@stellp.com 4 SIEGEL TEITELBAUM & EVANS, LLP 260 Madison Avenue - 22nd Floor 5 New York, NY 10016 (212) 455-0300 6 Steven J. Hyman, Pro Hac Vice 7 shyman@mclaughlinstern.com Paul H. Levinson, Pro Hac Vice 8 plevinson@mclaughlinstern.com Bruce A. Langer, Pro Hac Vice 9 blanger@mclaughlinstern.com McLAUGHLIN & STERN, LLP 10 260 Madison Avenue - 18th Floor New York, NY 10016 11 (212) 448-1100 12 Craig J. Stein (State Bar No. 98041) craig@craigsteinlaw.com 13 THE STEIN LAW FIRM th 801 S. Figueroa Street - 12 Floor 14 Los Angeles, California 90017 Telephone: (213) 233-2271 15 Facsimile: (213) 622-1444 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorneys for Plaintiff EUNICE HUTHART UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EUNICE HUTHART, ) ) Plaintiff, ) ) v. ) ) NEWS CORPORATION, et al., ) ) Defendants. ) ___________________________ ) CASE NO.: CV 13-4253 MWF (AJWx) Honorable Michael W. Fitzgerald PLAINTIFF’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS No Hearing Scheduled
(Transcript of March 10, 2014 hearing filled concurrently).

Supplemental Points & Authorities In Opposition

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TABLE OF CONTENTS TABLE OF AUTHORITIES......................................................................................ii I. II. INTRODUCTION..............................................................................................1 ARGUMENT......................................................................................................1 A. Neither the MTVIL, Nor the English Civil Court Proceedings Is An Adequate Alternative Forum for Plaintiff’s Claims Because Not All Defendants Are Amendable to Jurisdiction in England and Wales.....2 B. C. The MTVIL Is Unavailable to Plaintiff......................................................5 Filing Suit in English Civil Court Proceedings Is Not an Adequate Alternative Forum Because Plaintiff Cannot Litigate the Full Subject Matter of Her Claims Against All Defendants in England and Wales......7 1. 2. Plaintiff cannot bring claims against News International and News Corporation (pre-Separation) in England and Wales...............8 Not all Activity Prohibited Under Federal Law is Prohibited Under English Law..............................................................................9

16 III. CONCLUSION.................................................................................................10

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TABLE OF AUTHORITIES

3 Alpine View Co. Ltd. v. Atlas Copco, 205 F.3d 208 (5th Cir. 2000)...............2 4 Dole Food Co., Inc. v. Watts, 303 F.3d 1104 (9th Cir. 2002).......................1, 2 5 Lockman Foundation v. Evangelical Alliance Mission, 930 F.2d 764 (9th Cir. 1991)..............................................................................1 6 Phoenix Canada Oil Co. Ltd. v. Texaco, Inc., 78 F.R.D. 445 (Del. 1978)....7, 8 7 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).........................................2, 7 8 U.S. Small Business Admin. v. Rocket Ventures II, L.P., No. C 10-04425 9 JSW, 2013 WL 57854 (N.D. Cal., Jan 3, 2013)................................................4 10 U.S. v. Smith, 155 F.3d 1051 (9th Cir. 1998).....................................................9 11 U.S. v. Nacchio, 519 F.3d 1140 (10th Cir. 2008)..............................................9 12 13 FEDERAL STATUTES

14 18 U.S.C. §§ 2701..............................................................................................9 15 18 U.S.C. § 2701(a)(2).......................................................................................9 16 17 18 19 20 21 22 23 24 25 26 27 28
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I. INTRODUCTION In his February 25, 2014 Order, U.S. District Judge Michael W.

3 Fitzgerald posed two questions: (1) whether the Mobile Telephone Voicemail 4 Interception Litigation ("MTVIL") would accept Huthart’s claims; and (2) 5 whether Huthart could bring her claims through the civil litigation system of 6 England and Wales in the ordinary course ("English Civil Court 7 Proceedings"). Order Re: Supplemental Briefing on Defendants’ Motion to 8 Dismiss, at 1 (Feb. 25, 2014). 9 Neither the MTVIL, nor English Civil Court Proceedings provides an 10 adequate alternative forum available to Plaintiff. First, Plaintiff cannot bring 11 her claims—whether through the MTVIL or English Civil Court 12 Proceedings—against all Defendants—because News Corporation (which, as 13 discussed below, has separated into two corporate entities) has not completely 14 consented to jurisdiction in England and Wales. Second, the MTVIL fails as 15 an adequate alternative forum because the Second Tranche of claims has 16 closed and no Third Tranche has been opened. Third, even if Plaintiff brought 17 her claims through English Civil Court Proceedings, she could not litigate the 18 full subject matter of her claims—her entire case—against all Defendants. For 19 these reasons, Defendants, who have the burden of proof, have not shown that 20 an adequate alternative forum is available to Plaintiff, and, accordingly, their 21 Motion to Dismiss for forum non conveniens should be denied. 22 23 II. ARGUMENT A motion to dismiss for forum non conveniens can only be granted

24 when an adequate alternative forum is available. See, e.g., Dole Food Co., 25 Inc. v. Watts, 303 F.3d 1104, 1117 (9th Cir. 2002) (“A party moving to 26 dismiss based on forum non conveniens bears the burden of showing (1) that 27 there is an adequate alternative forum, . . . .”); Lockman Foundation v. 28 Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir. 1991) (“At the
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Supplemental Points & Authorities In Opposition

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1 outset of the forum non conveniens inquiry, the court must determine whether 2 there exists an alternative forum.”) An adequate alternative forum is one 3 where the plaintiff can litigate the subject matter of her complaint, and where 4 all defendants are amenable to jurisdiction. Piper Aircraft Co. v. Reyno, 454 5 U.S. 235, 254 n.22 (1981) (“[W]here the remedy offered by the other forum is 6 clearly unsatisfactory, the other forum may not be an adequate alternative . . . . 7 Thus, for example, dismissal would not be appropriate where the alternative 8 forum does not permit litigation of the subject matter of the dispute.”); Dole 9 Food, 303 F.3d at 1118 (citing Alpine View Co. Ltd. v. Atlas Copco, 205 F.3d 10 208, 221 (5th Cir. 2000) (“A foreign forum is available when the entire case 11 and all parties can come within the jurisdiction of that forum.”)). The burden 12 is on the defendant to demonstrate that such a forum exists. Dole Food, 303 13 F.3d at 1117. Here, Defendants have not met and cannot meet this burden. 14 15 16 17 A. Neither the MTVIL, Nor the English Civil Court Proceedings Is anAdequate Alternative Forum for Plaintiff’s Claims Because Not all Defendants Are Amenable to Jurisdiction in England and Wales

In answering whether Plaintiff can bring her claims in the MTVIL or in

18 English Civil Court Proceedings, the threshold question of personal 19 jurisdiction must be addressed. As indicated above, a forum is an adequate 20 alternative only when all parties are amenable to suit in the forum. Here, 21 England and Wales cannot be an adequate alternative forum because News 22 Corporation has patently failed and refused to consent to jurisdiction. 23 Defendants have attempted to give the Court the impression that they have 24 consented to jurisdiction by stating that 21st Century Fox, Inc. (“21st Century 25 Fox”) has agreed “to waive any challenge to personal jurisdiction in the UK” 26 if this case is dismissed on forum non conveniens grounds and timely re-filed 27 in England and Wales. Declaration of Gerson A. Zweifach, dated September 28 20, 2013 (“Zweifach Decl.”), ¶ 3. But this is a red herring: 21st Century Fox
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1 is not the real party in interest. The real party in interest is the company 2 currently named News Corporation, which was spun-off from the original 3 News Corporation in 2013. Nowhere in the extensive materials submitted by 4 Defendants did the current News Corporation, the primary wrongdoer, agree 5 to submit to personal jurisdiction in England and Wales. Declaration of 6 Steven J. Hyman, Esq., dated March 17, 2014 (“Hyman Decl.”), ¶ 10. 7 As discussed in the Hyman Declaration, in June 2013 Defendant News 8 Corporation spun-off its news publishing and certain other businesses into a 9 new corporation, which Defendants themselves refer to as "New News 10 Corporation" (the “Separation”). New News Corporation was subsequently 11 renamed News Corporation, but for clarity this entity will be referred to 12 hereinafter as New News Corporation. The original News Corporation was 13 renamed 21st Century Fox, Inc. Hyman Decl., ¶¶ 3-4; Zweifach Decl. ¶ 2. 14 Both New News Corporation and 21st Century Fox are successor 15 companies of the pre-Separation News Corporation, the named Defendant. 16 However, primary liability for the conduct at issue in Plaintiff’s claims rests 17 with New News Corporation, not with 21st Century Fox.1 Moreover, in view 18 of the fact that the print media entities which perpetrated the voicemail 19 hacking scheme on Plaintiff and many other individuals were attributed in the 20 Separation to New News Corporation, not 21st Century Fox, it is reasonable 21 to infer that the bulk, if not the entirety, of relevant documentary evidence is 22 maintained by New News Corporation, and that it (and not 21st Century Fox) 23 became the employer of key fact witnesses. Defendants’ filings with the 24 United States Securities and Exchange Commission (“SEC”) confirm that 25 New News Corporation is liable for civil claims arising out of the hacking 26
Nothing herein constitutes a waiver of claims against 21st Century Fox or an 27 admission that 21st Century Fox has no liability for the conduct at issue. Regarding 21st Century Fox’s responsibility for pre-Separation acts at News Corporation, see 28 Langer Decl. Ex. “1”, at 20.
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Supplemental Points & Authorities In Opposition
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1 activity at the pre-Separation News Corporation’s U.K. subsidiaries. New 2 News Corporation’s Annual Report on Form 10-K, filed September 30, 2013 3 (“Form 10-K”), clearly admits to civil liability, stating, “The Company [New 4 News Corporation] has admitted liability in many civil cases related to the 5 voicemail interception allegations . . . .” Form 10-K at 20.2 Hyman Decl.¶ 6. 6 New News Corporation’s civil liability is consistent with the fact that New 7 News Corporation is liable for any criminal penalties or fines arising from 8 U.K. investigations into voicemail interception and other related matters. 9 Form 10-K at 21. Hyman Decl. ¶7. 10 Plaintiff filed claims against News Corporation in 2013, prior to the 11 Separation that resulted in the formation of two successor companies (New 12 News Corporation and 21st Century Fox), and both of these successor 13 companies, but first and foremost New News Corporation, are implicated by 14 Plaintiff’s claims. Defendants have made no showing that New News 15 Corporation would be amenable to suit in England and Wales. Therefore, 16 Defendants’ Motion to Dismiss for forum non conveniens should be denied. 17 See U.S. Small Business Admin. v. Rocket Ventures II, L.P., No. C 10-104425 18 JSW, 2013 WL 57854, at *6 (N.D. Cal., Jan 3, 2013) (finding no alternative 19 forum because Defendants—residents of Italy and France—did not show 20 “that there is a court in either France or Italy that would have jurisdiction over 21 every Defendant”). Consequently, neither the MTVIL nor English Civil Court 22 Proceedings is an adequate alternative forum. 23 24 25
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26 expenses arising from civil claims concerning voicemail interception and other 27 related matters, Hyman Decl. ¶ 7, but this should be distinguished from assuming 28
liability for such claims. Despite the indemnification, New News Corporation remains liable.
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Supplemental Points & Authorities In Opposition

21st Century Fox has agreed to indemnify New News Corporation for

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B.

The MTVIL Is Unavailable to Plaintiff

In their Motion to Dismiss, Defendants proposed two avenues for

3 Plaintiff to pursue her claims in the alternative forum of England and Wales. 4 The first proposed avenue was the voluntary compensation scheme created by 5 NI Group Limited (“NI”) (formerly News International) to facilitate early 6 settlement of phone hacking and related claims. However, as Plaintiff showed 7 and Defendants’ own documents state, the compensation scheme closed on 8 April 8, 2013 and therefore is not available to Plaintiff. 9 The second proposed avenue was the MTVIL. But this, too, is presently 10 unavailable to Plaintiff. According to a direction issued by the Presiding 11 Judge of the Chancery Division of the High Court of England and Wales, all 12 cases falling within the scope of the MTVIL are automatically referred to the 13 MTVIL. Declaration of Hugh Tomlinson, QC, dated March 13, 2014 14 (“Tomlinson Decl.”), ¶ 7. The current tranche of claims, Tranche 2, was 15 originally set to close August 24, 2012 and to proceed to trial in February 16 2013. Tomlinson Decl. ¶¶ 8-9. Since these dates were set, the trial was 17 adjourned on two occasions and the cut-off date to join Tranche 2 was 18 extended multiple times. At present, trial of 25 claims is set to commence on 19 October 1, 2014 and the final deadline to join Tranche 2, January 31, 2014, 20 has passed. Tomlinson Decl. ¶¶ 10-11. 21 Defendants misstate the facts when they suggest the MTVIL is still 22 available to Plaintiff. The present position of the managing judge for the 23 MTVIL is that he is disinclined to further extend the cut-off date for Tranche 24 2 and no new claims can join Tranche 2. Tomlinson Decl. ¶¶ 11-12. That 25 Defendants have purported to consent to Plaintiff’s joining Tranche 2 is 26 immaterial. Plaintiff cannot join Tranche 2 if the managing judge does not 27 order an additional extension of the cut-off date, a decision that rests squarely 28 within the discretion of the managing judge. Given the managing judge’s
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Supplemental Points & Authorities In Opposition

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1 disinclination and the current timetables for proceeding to trial, it is unlikely 2 that an extension would be ordered and that Plaintiff would be allowed to join 3 Tranche 2. Tomlinson Decl. ¶¶ 11-12. 4 Further, according to an order issued April 20, 2012 (as amended 5 February 8, 2013), if Plaintiff were to file claims in English Civil Court 6 Proceedings that fell within the scope of the MTVIL, such proceedings would 7 be stayed pending resolution—including appeals—of all Tranche 2 claims, 8 not just the 25 set to proceed to trial on October 1, 2014. Tomlinson Decl. ¶¶ 9 13-15. To date, no consideration has been given to the handling of stayed 10 claims. At present there is no Tranche 3, and there has been no indication that 11 there will be a Tranche 3. Tomlinson Decl. ¶ 16. 12 As the foregoing discussion demonstrates, neither of the two avenues 13 that Defendants’ Motion to Dismiss claimed were available to Plaintiff are, in 14 fact, available, as Plaintiff demonstrated in Plaintiff’s Memorandum of Points 15 and Authorities in Opposition to Defendants’ Motion to Dismiss. In response, 16 Defendants raised—for the first time in their Reply [Memorandum] In 17 Support of Defendants’ Motion to Dismiss—the possibility that even though 18 all relevant claims are automatically referred to the MTVIL, the Plaintiff 19 could bring her claims through a standard civil suit (i.e., in English Civil 20 Court Proceedings).3 However, the option suggested by Defendants rings 21 hollow. While it is technically correct that if no MTVIL Tranche 3 is 22 established, then Plaintiff can file suit in English Civil Court Proceedings, at 23 24 25 26 27 28
Judge Fitzgerald’s February 24, 2004 “Tentative Order” summarizes Defendants’ position and then states, “Huthart has not challenged these assertions.” Tentative Order, at 6. However, because these assertions were made in Defendants’ Reply Memorandum, Huthart was unable to “challenge these assertions” in advance of the February 24, 2014 hearing on Defendants’ Motion to Dismiss. Huthart did, however, vigorously “challenge these assertions” at the hearing and continues to do so. See Transcript at 12-13.
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Supplemental Points & Authorities In Opposition
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1 best she would be thrust into the litigation equivalent of purgatory.4 2 Specifically, until a definitive decision is made regarding Tranche 3, the 3 outcome of which is speculative at best, any claims filed by Plaintiff in 4 English Civil Court Proceedings will remain in a procedural limbo, and in any 5 event would be stayed until the final resolution of all Tranche 2 claims. 6 Tomlinson Decl. ¶¶ 12-16. 7 8 9 10 11 C. Filing Suit in English Civil Court Proceedings Is Not an Adequate Alternative Forum Because Plaintiff Cannot Litigate the Full Subject Matter of Her Claims against All Defendants in England and Wales

When a plaintiff cannot litigate the subject matter of her case in a

12 proposed forum, the forum is inadequate. Piper Aircraft, 454 U.S. at 254 n.22 13 (“[D]ismissal would not be appropriate where the alternative forum does not 14 permit litigation of the subject matter of the dispute.”) Id. at 254 n.22. In 15 Piper Aircraft the Supreme Court approvingly cited Phoenix Canada Oil Co. 16 Ltd. v. Texaco, Inc., 78 F.R.D. 445 (Del. 1978) as an example of this 17 proposition. Describing the holding in Phoenix Canada Oil, the Supreme 18 Court stated that the “court refuse[d] to dismiss, where the alternative forum 19 [was] Ecuador, it [was] unclear whether Ecuadorian tribunal will hear the 20 case, and there [was] no generally codified Ecuadorian legal remedy for the 21 unjust enrichment and tort claims asserted.” Piper Aircraft, 454 U.S. at 254 22 n.22 (discussing Phoenix Canada Oil). 23 Plaintiff’s case presents a situation similar to that in Phoenix Canada 24 Oil. As discussed above, not all Defendants are amenable to suit in England 25 and Wales. In addition, English law offers no remedy for a significant portion 26 of Plaintiff’s claims, including claims made against NI and News Corporation 27 28
Claimants can also opt out of the MTVIL and have their claims stayed pending final resolution of all MTVIL claims.
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Supplemental Points & Authorities In Opposition
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1 (pre-Separation), and claims for interfering with and preventing access to 2 Plaintiff’s voicemail. Similarly, in Phoenix Canada Oil, a significant portion, 3 but not all, of the plaintiff’s claims could not be brought in the proposed 4 alternative forum. Although Ecuadorian law offered a remedy for one theory 5 of law advanced by the plaintiffs, Ecuador was still an inadequate forum 6 because “no remedy could be obtained for two of the three legal theories 7 advanced.” Phoenix Canada Oil, 78 F.R.D. at 456. 8 9 10 11 1. Plaintiff Cannot Bring Claims Against News International and News Corporation (preSeparation) in England and Wales

The MTVIL has been structured to address claims against NGN and

12 Glenn Mulcaire. Nearly every claim brought in Tranche 1 and Tranche 2 was 13 limited to these defendants. Not a single claim has been brought against NI or 14 News Corporation (pre-Separation), and, in fact, Plaintiff could not bring her 15 claims against these Defendants in the English Courts, through the MTVIL or 16 through English Civil Court Proceedings. Tomlinson Decl. ¶¶ 17, 20-21. 17 Plaintiff alleged that NI and News Corporation are directly liable because they 18 knew or should have known about the hacking activity at NGN, failed to stop 19 the phone hacking, and participated in the cover-up of the phone hacking. 20 Complaint ¶¶ 5, 10, 12, 15, 22-26, 28, and 42. English law provides no cause 21 of action that would hold NI and News Corporation liable for this conduct. 22 Accordingly, if Plaintiff did try to bring these claims, it is highly likely that 23 they would be dismissed immediately. Tomlinson Decl. ¶¶ 17, 20-21.5 24 25 26
Under English law, NI and News Corporation cannot be held directly liable 27 for the failure to prevent or stop the hacking at NGN, which is a distinct and separate legal theory from liability due to piercing the corporate veil. Tomlinson 28 Decl. ¶¶20-21.
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2.

Not all Activity Prohibited Under Federal Law is Prohibited Under English Law

Further limiting Plaintiff’s ability to litigate the subject matter of her claims is the fact that the Stored Communication Act (“SCA”), 18 U.S.C. §§ 2701, et seq., proscribes conduct that is not proscribed by English Law. The SCA makes it an offense to access, obtain, interfere with or prevent access to stored wire communications without authorization. 18 U.S.C. § 2701(a)(2). It is not necessary to actually obtain or listen to the content of the wire communication. This significant distinction is confirmed by the Ninth Circuit’s decision in U.S. v. Smith, 155 F.3d 1051 (9th Cir. 1998), superseded by rule on other grounds as stated in U.S. v. Nacchio, 519 F.3d 1140 (10th Cir. 2008) vacated in part on reh'g en banc, 555 F.3d 1234 (10th Cir. 2009), which held that “the word ‘access[]’ merely involves being in a position to acquire the contents of a communication.” Id. at 1058-59. In contrast, under English law, a violation exists only if the content of a communication is acquired; merely accessing, interfering with or preventing access to voicemail does not give rise to a cause of action for breach of confidence or misuse of private information. Tomlinson Decl. ¶ 22. Plaintiff specifically alleged that Defendants changed her PIN and thereby prevented her from accessing her voicemail while she was in the United States, Complaint ¶¶ 19, 54, 57, 75-76, and that Defendants interfered with her voicemail, including by deleting messages, Complaint ¶¶ 1, 8-9, 15, 49, 5455, 57, 76. Apart from the unavailability of an English forum, English law provides no remedy for, and Plaintiff cannot litigate, the subject matter of these claims.

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Supplemental Points & Authorities In Opposition

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CONCLUSION The foregoing discussion makes clear that: (a) England and Wales is not an

3 adequate alternative forum because it lacks jurisdiction over all Defendants; 4 (b) the MTVIL is not available to Plaintiff; and (c) even in English Civil 5 Court Proceedings, Plaintiff could not litigate the subject matter of her entire 6 case against all the Defendants. Therefore, Defendants’ Motion to Dismiss for 7 forum non conveniens should be denied.6 8 Dated: March 17, 2014 9 10 11 12 13 14 15 16 17 18
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SIEGEL TEITELBAUM & EVANS, LLP McLAUGHLIN & STERN LLP THE STEIN LAW FIRM /S/ /s/ Norman Siegel Attorneys for Plaintiff* *The Attorneys wish to express their appreciation to Kate Fletcher.

19 “about a check.” Transcript at 23. Plaintiff respectfully disagrees. If this case is 20 sent to London, then it will be about nothing more than a check. As Plaintiff’s

At the February 24, 2014 hearing, the Court stated that this case is simply

21 a check, like they’ve given lots of other checks. But no one gets to the facts and the 22 truth about how this happened.” Transcript at 22. 23 In her declaration filed in opposition to Defendants’ Motion to Dismiss, Plaintiff 24 25 26 27 28
stated: I filed this lawsuit to find out how the unauthorized access to and the interception of my voice mail messages on my cellular telephone while I was living and working in Los Angeles occurred, who precisely did it, why did they do it, how precisely did they do it, and to hold them accountable for violating my privacy and civil rights so that similar violations do not happen again to me and other people. Declaration of Eunice Huthart, dated December 6, 2013, ¶14.
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Supplemental Points & Authorities In Opposition

counsel, Norman Siegel, Esq., stated at the hearing, “They’ll [Defendants] give her

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