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1 Kirk D. Miller, WSBA #40025
Attorneys for Intervenor Center for Justice
2 KIRK D. MILLER, P.S.
421 W. Riverside Avenue, Suite 660
3 Spokane, Washington 99201-0410
Telephone: (509) 413-1494
4 Facsimile: (509) 413-1724
Email: kmiller@millerlawspokane.com
5

6

7 U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
8
ELF-MAN, LLC,
9 NO: 2:13-cv-00395-TOR
Plaintiff,
10 CENTER FOR JUSTICE’S
vs. MOTION TO INTERVENE FOR
11 THE LIMITED PURPOSE OF
RYAN LAMBERSON, an individual, CHALLENGING THE SEALING
12 OF COURT RECORDS
Defendant.
13 Note on Motion Calendar: 11/30/17
11/16/17

14 ORAL
6:30 PMARGUMENT
- Without OralREQUESTED
Argument

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CENTER FOR JUSTICE’S MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS
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1 TABLE OF CONTENTS

2 Page No.

3 I. INTRODUCTION ....................................................................................... 1

4 II. STATEMENT OF FACTS .......................................................................... 1

5 III. INTEREST OF MOVANT.......................................................................... 3

6 IV. ARGUMENT AND AUTHORITY ............................................................ 5

7 A. CFJ Meets The Standard For Permissive Intervention
Under Federal Rule Of Civil Procedure 24(b) .................................. 5
8
1. The Motion To Intervene Is Timely ....................................... 6
9
2. There Is No Independent “Common Question Of
10 Law Or Fact” Requirement Where Intervention Is
Sought For The Limited Purpose Of Challenging
11 Court Records ......................................................................... 8

12 V. CONCLUSION ........................................................................................... 9

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1 TABLE OF AUTHORITIES

2 Page No.

3 FEDERAL CASES

4 Beckman Indus., Inc. v Int’l Ins. Co.,
966 F.2d 470 (9th Cir. 1992) ..................................................................... 6, 9
5
Citizens for Balanced Use v. Montana Wilderness Ass’n,
6 647 F.3d 893 (9th Cir. 2011) ......................................................................... 7

7 Kamakana v. City and Cnty. of Honolulu,
447 F.3d 1172 (9th Cir. 2006) ...............................................................5, 8, 9
8
Perez v. Lantern Light Corp.,
9 No. C12-1406RSM, 2017 WL 2172012 (W.D. Wash.
May 17, 2017)................................................................................................ 8
10
Pub. Citizen v. Liggett Grp., Inc.,
11 858 F.2d 775 (1st Cir. 1988) ......................................................................... 7

12 San Jose Mercury News v. U.S. Dis. Court-N. Dist. (San Jose),
187 F.3d 1096 (9th Cir. 1999) ...........................................................5, 6, 8, 9
13
S.E.C. v. AOB Commerce, Inc.,
14 No. CV 07-4507 (CAS), 2013 WL 5405697 (C.D. Cal.
Sept. 23, 2013) ............................................................................................... 8
15
United Nuclear Corp. v. Cranford Ins. Co.,
16 905 F.2d 1424 (10th Cir. 1990) ..................................................................... 7

17 United States v. State of Oregon,
745 F.2d 550 (9th Cir. 1984) ......................................................................... 6
18
United States v. State of Wash.,
19 86 F.3d 1499 (9th Cir. 1996) ......................................................................... 7

20
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1 I. INTRODUCTION

2 The Center for Justice (“CFJ”) respectfully requests leave to intervene,

3 pursuant to Fed. R. Civ. P. 24(b), for the limited purpose of challenging the

4 sealing of court records in this case.

5 Specifically, the CFJ seeks to intervene to challenge the sealing of six

6 exhibits attached to a series of motions and supporting declarations filed by the

7 parties from July 2014 through January 2015. The sealed exhibits are directly

8 relevant to the CFJ’s mission of providing greater access to justice to low-wage

9 Washingtonians and ensuring that government and courts operate in an open and

10 transparent manner.

11 This case presents a rare and important opportunity to shine a light on why

12 innocent Washingtonians find themselves named as defendants in copyright

13 infringement lawsuits and how film companies, lawyers and “independent”

14 investigators have deputized federal courts to facilitate a shakedown. The CFJ

15 therefore respectfully requests that this Court grant it leave to intervene under

16 Rule 24(b) in order to challenge the sealing of these exhibits.

17 II. STATEMENT OF FACTS

18 This is a case about alleged copyright infringement and the entities

19 responsible for the growing wave of “copyright trolling” lawsuits. Plaintiff Elf-

20 Man, LLC, producer of the motion picture Elf-Man, sued Defendant Ryan
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1 Lamberson along with twenty-eight other “Doe” defendants, identified by the

2 Internet Protocol (“IP”) addresses assigned by their Internet Service Provider

3 (“ISP”). The complaint alleged that Elf-Man had recorded each Defendant

4 copying and publishing Elf-Man via BitTorrent, an interactive peer-to-peer file

5 transfer technology. ECF Nos. 1 at ¶ 60 and 2 at ¶ 137. To support this assertion,

6 Plaintiff alleged that its investigator had downloaded the motion picture from

7 each Defendant. Id. After sending subpoenas to the ISPs based on the table of IP

8 addresses allegedly connected to infringing, see ECF No. 1-1, Elf-Man amended

9 its complaint to name Lamberson. See ECF No. 2 at ¶ 83.

10 After this Court granted the parties’ stipulated motion for a boilerplate

11 protective order, ECF No. 32, the parties filed several documents separately under

12 seal. See ECF Nos. 39-1, 39-2, 43-5, 43-6, 51-2, 65-2. These documents

13 reportedly trace the bizarre relationship between Elf-Man and the investigators

14 who formally declared they had “observed” the alleged infringing activity,

15 forming the basis of Elf-Man’s entire case. Apparently, Elf-Man, through its

16 “sales agent,” retained a company called Anti-Piracy Management Company

17 (“APMC”) to “manage its piracy efforts, including but not limited to this

18 litigation.” ECF No. 57 at 3 (quoting Elf-Man’s response to interrogatories). This

19 contract, including how revenue from “anti-piracy” efforts was divided, if any,

20 remains under seal.
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1 In short, several of the documents filed under seal may expose how film

2 companies, investigators and lawyers have coordinated an illegal settlement

3 factory, sending threatening and deceptive letters to hundreds of targets, and

4 seeking quick settlements priced just low enough that it is less expensive for the

5 defendant to pay rather than to defend the claim.

6 Based on undersigned counsel’s review of the record, it appears that this

7 occurred without any showing of need for secrecy or any specific judicial

8 findings that the need for secrecy outweighed the public’s presumptive right of

9 access to court records. Instead, it appears that these records were sealed simply

10 because they contained, or made reference to, documents that were designated

11 confidential pursuant to the parties’ stipulated protective order. In fact, the

12 protective order did not define “confidential,” rather, it allowed the producing

13 party to designate documents, testimony, written responses or other materials as

14 “confidential” if it has a “good faith basis for asserting is confidential [sic] under

15 the applicable legal standards.” ECF No. 23-1.

16 III. INTEREST OF MOVANT

17 As described in the attached Declaration of the CFJ’s Rick Eichstaedt,

18 CFJ is a non-profit organization dedicated to providing greater access to justice

19 and creating more transparency in the judicial system. See Eichstaedt Dec. at ¶ 1.

20 The CFJ also works to curb predatory consumer practices, which
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1 disproportionately affect low-income individuals that are a majority of CFR’s

2 clients. Id.

3 The CFJ’s position is simple: if foreign data collectors and local lawyers

4 are feeding on the subpoena power of federal courts to extract settlements from

5 innocent people, then the public deserves to know. Unfortunately, improper use

6 of confidentiality designations in litigation prevents the type of investigation

7 needed to fully understand the scope of the issues.

8 What makes this case so important is that, based on the unsealed exhibits

9 and declarations, it appears that a German operation is providing the

10 “investigators” and “experts” that claim to identify infringing activities, but its

11 investigators apparently have a direct financial interest and the “software” is

12 questionable at best. ECF Nos. 53 at ¶ 9; 57 at 7; 58 at ¶ 5; 64 at 3. The entire

13 lawsuit may have been a sham.

14 Which is where CFJ comes in. Money and information remain the most

15 significant hurdles for those being named as defendants in lawsuits like this one

16 who receive threatening settlement letters like the one Mr. Lamberson received.

17 Even if an accused infringer has the resources to hire counsel, defense lawyers are

18 unfamiliar with these cases, costing a potential defendant more in legal bills than

19 the cash settlement offered by the copyright trolls. By the time the average lawyer

20 has figured out how to respond, she has sunk more hours into a case than it would
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1 cost to settle. This creates a perverse incentive, where Washingtonians settle cases

2 with no merit, which encourages the trolls’ continuing meritless litigation.

3 CFJ’s goal is to level the playing field and reduce the plaintiffs’

4 informational advantage. The common-law right of access to judicial records is

5 especially important where, as here, the copyright “trolling” risks infecting the

6 judicial system. Exposing the copyright trolls’ mushrooming enterprise depends

7 on accessing court documents, such as the six documents CFJ seeks to unseal.

8 For all these reasons, the CFJ believes that the sealing of the records in this

9 case prevents access to materials of significant public concern, a concern that

10 goes to the core of the CFJ’s mission. The CFJ therefore respectfully requests that

11 this Court unseal six exhibits in this case.

12 IV. AUTHORITY AND ARGUMENT

13 A. CFJ Meets The Standard For Permissive Intervention Under Federal
Rule Of Civil Procedure 24(b).
14
It is well established that “[n]onparties seeking access to a judicial record
15
in a civil case may do so by seeking permissive intervention under Rule
16
24(b)(2).” San Jose Mercury News v. U.S. Dis. Court-N. Dist. (San Jose), 187
17
F.3d 1096, 1100 (9th Cir. 1999). Where, as here, the CJF does not seek to litigate
18
a claim on the merits, but rather seeks to intervene for the limited purpose of
19
challenging the sealing of court records, an independent jurisdictional basis and a
20
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1 common question of fact or law are not required. Id. at 1100. See also Beckman

2 Indus., Inc. v Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992) (holding an

3 independent jurisdictional basis and strong nexus of fact or law are not required

4 where an intervenor merely seeks to challenge a protective order, because the

5 intervenor is merely asking the court to exercise a power it already has: the power

6 to modify its order); Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172,

7 1176 (9th Cir. 2006) (nonparty granted permissive intervention for limited

8 purpose of modifying protective order and challenging sealing of court records).

9 1. The Motion To Intervene Is Timely.

10 When faced with a motion to intervene for the purpose of unsealing court

11 records, the only question is whether the proposed intervention is timely. The

12 Ninth Circuit considers three factors to determine whether a motion to intervene

13 is timely: “(1) the stage of the proceeding at which an applicant seeks to

14 intervene; (2) the prejudice to other parties; and (3) the reason for and length of

15 [any] delay.” San Jose Mercury News, 187 F.3d at 1100-01. Of these three

16 factors, whether the existing parties would be prejudiced is “the most important

17 consideration in deciding whether a motion for intervention is untimely.” United

18 States v. State of Oregon, 745 F.2d 550, 552 (9th Cir. 1984) (quoting 7A C.

19 Wright & A. Miller, Federal Practice and Procedure § 1916 (1972)). When the

20 requested intervention will “complicate the issues and prolong the litigation,”
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1 there is prejudice to the other parties from the delay in seeking leave to intervene.

2 United States v. State of Wash., 86 F.3d 1499, 1504 (9th Cir. 1996).

3 Here, permitting the CFJ to intervene for the limited purpose of unsealing

4 documents will not prejudice the original parties. The CFJ does not seek to

5 intervene in the merits of the lawsuit or to participate in any way. It seeks

6 intervention only because, as explained above, that is the procedural vehicle by

7 which it may request access to court records that—in its view—ought to be

8 public. Because the proceedings are complete, there is no possibility the CFJ’s

9 intervention will cause disruption or delay in the proceedings. See Citizens for

10 Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011)

11 (finding it significant that intervention would not cause disruption or delay

12 proceedings); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427

13 (10th Cir. 1990) (explaining that where intervention is limited to the “collateral

14 purpose” of seeking access to court documents, “prejudice in the adjudication of

15 the rights of the existing parties” is not a concern); Pub. Citizen v. Liggett Grp.,

16 Inc., 858 F.2d 775, 786 (1st Cir. 1988) (stating “if the desired intervention relates

17 to an ancillary issue and will not disrupt the resolution of the underlying merits,

18 untimely intervention is much less likely to prejudice the parties.”).

19 As to the remaining two factors, the CFJ only recently learned about the

20 sealing of these significant exhibits. Having learned of their existence, the CFJ
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1 acted promptly to file motions to intervene and unseal. Moreover, in the context

2 of requests to unseal documents, “delays measured in years have been tolerated

3 where an intervenor is pressing the public’s right of access to judicial records.”

4 San Jose Mercury News, 187 F.3d at 1101; see also Perez v. Lantern Light Corp.,

5 No. C12-1406RSM, 2017 WL 2172012 (W.D. Wash. May 17, 2017) (“Although

6 this case has been closed since October of 2015, the Court recently allowed

7 WWCP to intervene in this matter pursuant to Local Civil Rule 5(g)(8) for the

8 sole purpose of making a motion to unseal records.”); S.E.C. v. AOB Commerce,

9 Inc., No. CV 07-4507 (CAS), 2013 WL 5405697, at *1 (C.D. Cal. Sept. 23, 2013)

10 (permitting intervention for the purpose of unsealing documents five years after

11 the case settled). Therefore, the fact that this case was resolved in January 2015 is

12 not a bar given the nature of this motion to intervene.

13 2. There Is No Independent “Common Question Of Law Or Fact”
Requirement Where Intervention Is Sought For The Limited Purpose
14 Of Challenging Court Records.

15 As noted above, the Ninth Circuit has repeatedly upheld the intervention of

16 nonparties for purposes of challenging a protective order in cases where there was

17 no common question except the propriety of the order. See Kamakana, 447 F.3d

18 at 1176; San Jose Mercury News, 187 F.3d at 1100. In doing so, it has

19 characterized its own caselaw as “holding that . . . [a] strong nexus of fact or law

20 [is] not required where [an] intervenor merely seeks to challenge a protective
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1 order.” San Jose Mercury News, 187 F.3d at 1100 (citing Beckman, 966 F.2d at

2 473-74).

3 The reason for this is clear: If courts insisted that intervenors seeking court

4 records raise a common question with the main action beyond the question of

5 whether the records should be sealed, there would be no way for members of the

6 public to gain access to records unless they had some personal interest in the case.

7 This would vitiate the public’s right of access to court records. See Kamakana,

8 447 F.3d at 1178-80 (explaining the importance of and justification for the

9 common law right of access to judicial records).

10 Accordingly, the CFJ’s contention that records in this case should be

11 unsealed is sufficient to support its motion for intervention.

12 V. CONCLUSION

13 For the foregoing reasons, the CFJ respectfully requests that this Court

14 grant this motion to intervene for the limited purpose of seeking public access to

15 sealed documents.

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1 RESPECTFULLY SUBMITTED AND DATED this 17th day of October,

2 2017.

3 KIRK D. MILLER, P.S.

4
By: /s/ Kirk D. Miller, WSBA #40025
5 Kirk D. Miller, WSBA #40025
Attorneys for Intervenor Center for Justice
6 421 W. Riverside Avenue, Suite 660
Spokane, Washington 99201-0410
7 Telephone: (509) 413-1494
Facsimile: (509) 413-1724
8 Email: kmiller@millerlawspokane.com

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1 CERTIFICATE OF SERVICE

2 Oct. 31st17, 2017, I electronically
I, Kirk D. Miller, hereby certify that on October

3 filed the foregoing with the Clerk of the Court using the CM/ECF system which

4 will send notification of such filing to the following:

5 David Allen Lowe, WSBA #24453
Attorneys for Elf-Man LLC
6 LOWE GRAHAM JONES PLLC
701 Fifth Avenue, Suite 4800
7 Seattle, Washington 98104
Telephone: (206) 381-3300
8 Email: lowe@lowegrahamjones.com

9 John Christopher Lynch, WSBA #17462
Jeffrey Ray Smith, WSBA #37460
10 Rhett V. Barney, WSBA #44764
Attorneys for Ryan Lamberson
11 LEE & HAYES, PLLC
601 West Riverside Avenue, Suite 1400
12 Spokane, Washington 99201
Telephone: (509) 324-9256
13 Facsimile: (509) 323-8979
Email: chris@leehayes.com
14 Email: jeffreys@leehayes.com
Email: rhettb@leehayes.com
15
Collette C. Leland, WSBA #40686
16 Attorneys for Interested Party Maureen VanderMay
WINSTON & CASHATT
17 601 West Riverside Avenue, Suite 1900
Spokane, Washington 99201-0695
18 Telephone: (509) 838-6131
Facsimile: (509) 838-1416
19 Email: ccl@winstoncashatt.com

20
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1 31st day of October, 2017.
DATED this 17th

2 KIRK D. MILLER, P.S.

3
By: /s/ Kirk D. Miller, WSBA #40025
4 Kirk D. Miller, WSBA #40025
Attorneys for Intervenor Center for Justice
5 421 W. Riverside Avenue, Suite 660
Spokane, Washington 99201-0410
6 Telephone: (509) 413-1494
Facsimile: (509) 413-1724
7 Email: kmiller@millerlawspokane.com

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