Court filing
OPPOSITION/RESPONSE (re 37 MOTION to Stay Discovery ) filed byCat… — Brooks v. Thomson Reuters Corporation (Dkt. 44)
No. 3:21-cv-01418-EMC · Doc. 44 · Docket on CourtListener
Full text
Case 3:21-cv-01418-EMC Document 44 Filed 07/06/21 Page 1 of 6
1 Eric H. Gibbs (SBN 178658) Jennifer D. Bennett (SBN 296726)
Andre M. Mura (SBN 298541) Neil K. Sawhney (SBN 300130)
2 Amanda M. Karl (SBN 301088) GUPTA WESSLER PLLC
Jeffrey B. Kosbie (SBN 305424) 100 Pine Street, Suite 1250
3 GIBBS LAW GROUP LLP San Francisco, CA 94111
4 505 14th Street, Suite 1110 Telephone: (415) 573-0336
Oakland, California 94612 jennifer@guptawessler.com
5 (510) 350-9700 (tel.) neil@guptawessler.com
(510) 350-9701 (fax)
6 ehg@classlawgroup.com
amm@classlawgroup.com
7 amk@classlawgroup.com
8 jbk@classlawgroup.com
9 Attorneys for Plaintiffs and the Proposed Class
10 [Additional counsel on signature page]
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UNITED STATES DISTRICT COURT FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
14 SAN FRANCISCO DIVISION
15
CAT BROOKS and RASHEED SHABAZZ, Case No. 3:21-cv-1418-EMC
16 individually and on behalf of all others similarly
situated,
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PLAINTIFFS’ OPPOSITION TO
18 Plaintiffs, MOTION TO STAY DISCOVERY
v. (Docket No. 37)
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THOMSON REUTERS CORPORATION, Date: July 29, 2021
20 Time: 1:30 p.m.
Defendant. Place: Courtroom 5, 17th Floor
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Judge: Hon. Edward M. Chen
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Plaintiffs’ Opposition to Motion to Stay Discovery
Case No. 3:21-CV-1418-EMC
Case 3:21-cv-01418-EMC Document 44 Filed 07/06/21 Page 2 of 6
1 Issue
2 Whether Defendant Thomson Reuters Corporation has met its heavy burden of making a
3 strong showing that discovery should be stayed.
4 Argument
5 The Court should deny Thomson Reuters’ request to stay all discovery. See Docket No. 37
6 (“Mot.”) at 2.
7 “The Federal Rules of Civil Procedure do not provide for automatic or blanket stays of
8 discovery when a potentially dispositive motion is pending.” Tradebay, LLC v. eBay, Inc., 278
9 F.R.D. 597, 600 (D. Nev. 2011). A party seeking to stay discovery therefore must meet the “good
10 cause” standard of the protective order provision of Federal Rule of Civil Procedure 26(c). Gray v.
11 First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990). That standard imposes a “heavy
12 burden of making a ‘strong showing’ why discovery should be denied.” Id. (quoting Blankenship v.
13 Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
14 Thomson Reuters cannot make that demanding showing for two reasons.
15 1. First, because Thomson Reuters seeks a blanket stay, it must convince this Court that its
16 pending motion will dispose of all claims with prejudice. See Kor Media Grp., LLC v. Green, 294
17 F.R.D. 579, 585 n.9 (D. Nev. 2013) (“a general stay of discovery is only appropriate where the
18 Court is convinced that all claims will be dismissed”); see also Onn v. Carnival Corp., 2021 WL
19 1267264, at *1 (N.D. Cal. Apr. 6, 2021) (denying stay because “the Court is not convinced that
20 [plaintiff] will be unable to state a claim for relief”); see generally Wood v. McEwen, 644 F.2d 797,
21 801 (9th Cir. 1981) (good cause to stay discovery may exist where court “convinced that the
22 plaintiff will be unable to state a claim for relief”). It cannot make that showing.
23 Thomson Reuters offers no convincing reason why its current motion to dismiss (or
24 successive motions, if allowed) 1 will be granted. Plaintiffs have already shown that Thomson
25 Reuters has no realistic claim to immunity, under either the First Amendment of the U.S.
26 Constitution or Section 230 of the Communications Decency Act. The private sale of personal
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See Hild v. Bank of Am., N A., 2015 WL 1813571, at *3 (C.D. Cal. Apr. 21, 2015) (“Federal
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Rule of Civil Procedure 12(g) limits a defendant’s ability to bring successive motions to dismiss.”).
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Plaintiffs’ Opposition to Motion to Stay Discovery
Case No. 3:21-CV-1418-EMC
Case 3:21-cv-01418-EMC Document 44 Filed 07/06/21 Page 3 of 6
1 data is not a matter of public concern; and Thomson Reuters’ development, posting, and sale of
2 360-degree dossiers of Californians’ personal information—including, by the company’s own
3 admission, proprietary information—in violation of California law are its own actions, not those of a
4 third party. See Docket No. 34 (“Opp.”) at 12-20. And so, it hardly matters that a valid First
5 Amendment or Section 230 immunity defense might warrant a stay of discovery. See Mot. at 7, 9
6 (listing cases which Plaintiffs assume for argument’s sake had correctly gauged the merits of these
7 types of defenses). Thomson Reuters has no such valid defense. For similar reasons and more,
8 Thomson Reuters’ anti-SLAPP arguments are also meritless. 2 Opp. at 21-25. As for its federal
9 Copyright Act defense, Thomson Reuters cannot even bring itself to argue that this defense
10 supports a stay of discovery. See Mot. at 5-8. Nor could it. Opp. at 20-21. And while Thomson
11 Reuters’ remaining arguments take aim at individual claims, Mot. at 6, those arguments cannot
12 support a blanket stay because Plaintiffs’ right of publicity, unfair competition, and unjust
13 enrichment claims are actionable as pleaded, and this Court has equity jurisdiction. Opp. at 3-12;
14 see Kor Media Grp., LLC, 294 F.R.D. at 585 n.9 (declining to assess merits of all claims because
15 general stay of discovery is inappropriate if plaintiff states a single claim for relief). 3
16 But even if all the claims in the complaint were dismissed, Thomson Reuters’ request for a
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18 2
The automatic stay provision of California’s anti-SLAPP statute, Thomson Reuters concedes,
19 does not apply in federal court due to conflicts with the Federal Rules of Civil Procedure. Planned
Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 833 (9th Cir.), amended,
20 897 F.3d 1224 (9th Cir. 2018); see Mot. at 7 n.2. Instead, Thomson Reuters argues that a stay
should apply because its anti-SLAPP motion to strike is founded on purely legal arguments. See id.
21 But its arguments fail from the start—the public interest exception applies here, and even if it
didn’t, Thomson Reuters cannot show that its private sale of data falls within the anti-SLAPP
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statute’s protection for speech in connection with a public issue. See Opp. 21–25. Still, even if this
23 Court were to grant the company’s motion to strike, “courts have generally granted leave to amend
after ruling on an anti-SLAPP motion based on legal challenges.” Todd v. Lovecruft, 2020 WL
24 60199, at *21 (N.D. Cal. Jan. 6, 2020) (collecting cases). There’s no reason to believe that would
not be the case here. And because discovery may be used to amend a pleading that is challenged as
25 legally insufficient, e.g., San Francisco Tech. v. Kraco Enters. LLC, 2011 WL 2193397, at *3-4
(N.D. Cal. June 6, 2011), an automatic stay of discovery would conflict with that federal practice
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and is unwarranted.
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Mindful that this Court’s civil local rules generally prohibit supplemental argument after a
noticed hearing date, and because the Court can fully assess the weakness of Thomson Reuters’
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dispositive motions based on the existing briefing and hearing, Plaintiffs do not reargue the merits.
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Plaintiffs’ Opposition to Motion to Stay Discovery
Case No. 3:21-CV-1418-EMC
Case 3:21-cv-01418-EMC Document 44 Filed 07/06/21 Page 4 of 6
1 blanket stay would still fail because there’s no reason to believe leave to amend would be denied.
2 See Mot. at 2, 5 (acknowledging as much). Courts easily deny requests to stay discovery when, as
3 here, the motion to dismiss may not be dispositive. See Singh v. Google, Inc., 2016 WL
4 10807598, at *2 (N.D. Cal. Nov. 4, 2016) (citing Nat’l Union Fire Ins. Co. of Pittsburgh, PA v.
5 Res. Dev. Servs., Inc., 2010 WL 3746290, at *1 (N.D. Cal. Sept. 18, 2010)); see generally
6 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam) (noting
7 “presumption under Rule 15(a) in favor of granting leave to amend”).
8 Perhaps sensing the weakness of its defenses, Thomson Reuters claims it need only show
9 that its motion has the “potential to be case-dispositive.” See Mot. at 5 (emphasis added). To be
10 sure, Thomson Reuters’ defenses lack even the potential to be case-ending because they are
11 meritless. Opp. at 3-25. But Thomson Reuters’ recitation of the law isn’t accurate or correct. Every
12 motion to dismiss has the potential to be case-dispositive. But discovery isn’t stayed whenever a
13 non-frivolous dispositive motion is filed. Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., 2018
14 WL 1569811, at *2 (N.D. Cal. Feb. 16, 2018) (“mere filing of a motion to dismiss is not ordinarily
15 sufficient to stop the discovery process, derail a case schedule, and delay proceedings”). “Had the
16 Federal Rules contemplated that a motion to dismiss under Fed. R. Civ. Pro. 12(b)(6) would stay
17 discovery, the Rules would contain a provision to that effect.” Gray, 133 F.R.D. at 40. “In fact,
18 such a notion is directly at odds with the need for expeditious resolution of litigation.” Id.
19 That is why “[a] merely colorable defense usually will not qualify to stay discovery.” Trzaska
20 v. Int’l Game Tech., 2011 WL 1233298, at *3 (D. Nev. Mar. 29, 2011). Rather, “there must be no
21 question in the court’s mind that the dispositive motion will prevail, and therefore, discovery is a
22 waste of effort,” id. (emphasis in original)—such as when, say, a complaint is “utterly frivolous, or
23 filed merely in order to conduct a ‘fishing expedition’ or for settlement value,” Gray, 133 F.R.D. at
24 40. It’s for that reason that the few courts to consider whether Ninth Circuit law would permit a
25 more lenient standard in determining whether to stay discovery pending resolution of a dispositive
26 motion have rejected the argument. Kor Media Grp., LLC, 294 F.R.D. at 583-84; Tradebay, LLC,
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Plaintiffs’ Opposition to Motion to Stay Discovery
Case No. 3:21-CV-1418-EMC
Case 3:21-cv-01418-EMC Document 44 Filed 07/06/21 Page 5 of 6
1 278 F.R.D. at 602-03; Trzaska, 2011 WL 1233298, at *3-4. 4
2 2. Second, it is not enough that the Court may resolve the pending motions to dismiss and
3 strike without discovery. To obtain a stay, Thomson Reuters must also “demonstrate[] good cause
4 to stay discovery pursuant to Rule 26(c)(1).” Smith v. Levine Leichtman Cap. Partners, Inc., 2011
5 WL 13153189, at *2 (N.D. Cal. Feb. 11, 2011) (denying motion to stay discovery for failure to
6 demonstrate good cause despite concluding defendant’s motion was potentially dispositive and
7 could be decided without discovery).
8 Thomson Reuters has not even attempted to do so. See Mot. at 8-9. Because it hasn’t
9 “offered a particularized showing describing why discovery in this case is any more burdensome
10 than it is on parties to other civil litigations . . . any interest [it] may have in resisting discovery is
11 outweighed by the interests of Plaintiff[s], the public, and the court in maintaining an orderly and
12 expeditious schedule.” Optronic Techs., Inc., 2018 WL 1569811, at *2. More than that, because
13 Thomson Reuters continues to sell people’s data without consent, Opp. at 2, and because
14 Thomson Reuters’ requested stay is potentially lengthy and indeterminate, see Mot. at 5 (asking to
15 stay discovery until Thomson Reuters decides “no further case-dispositive pleading challenges is
16 warranted”), the equities here strongly disfavor a stay of discovery. See Opp. at 11 (noting ongoing
17 privacy violation is irreparable injury).
18 Conclusion
19 For the foregoing reasons, this Court should deny Thomson Reuters’ request to stay
20 discovery.
21 Dated: July 6, 2021 Respectfully submitted,
22 By: /s/ Andre M. Mura
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Eric H. Gibbs (SBN 178658)
24 Andre M. Mura (SBN 298541)
25 Courts in this district that cite Pacific Lumber Co. v. National Union Fire Insurance Co. of
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Pittsburgh, PA., 220 F.R.D. 349 (N.D. Cal. 2003), which in turn cited only out-of-circuit authority
26 to support its statement that a “pending motion must be potentially dispositive,” id. at 352,
27 nonetheless properly deny requests to stay discovery unless “convinced” that a plaintiff will be
unable to state a claim for relief. E.g., Onn, 2021 WL 1267264, at *1 (Freeman, J.); but see Reveal
28 Chat Holdco, LLC v. Facebook, Inc., 2020 WL 2843369, at *3-4 (N.D. Cal. Apr. 10, 2020)
(Freeman, J.) (more readily staying discovery in antitrust cases).
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Plaintiffs’ Opposition to Motion to Stay Discovery
Case No. 3:21-CV-1418-EMC
Case 3:21-cv-01418-EMC Document 44 Filed 07/06/21 Page 6 of 6
1 Amanda M. Karl (SBN 301088)
Jeffrey B. Kosbie (SBN 305424)
2 GIBBS LAW GROUP LLP
505 14th Street, Suite 1110
3 Oakland, California 94612
4 Telephone: (510) 350-9700
Facsimile: (510) 350-9701
5 ehg@classlawgroup.com
amm@classlawgroup.com
6 amk@classlawgroup.com
jbk@classlawgroup.com
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8 Jennifer D. Bennett (SBN 296726)
Neil K. Sawhney (SBN 300130)
9 GUPTA WESSLER PLLC
100 Pine Street, Suite 1250
10 San Francisco, CA 94111
Telephone: (415) 573-0336
11 jennifer@guptawessler.com
12 neil@guptawessler.com
13 Benjamin Elga (pro hac vice)
Alice Buttrick (pro hac vice)
14 JUSTICE CATALYST LAW INC.
123 William Street, 16th Floor
15 New York, NY 10038
16 Telephone: (518) 732-6703
belga@justicecatalyst.org
17 abuttrick@justicecatalyst.org
18 Albert Fox Cahn (pro hac vice)
SURVEILLANCE TECHNOLOGY
19 OVERSIGHT PROJECT, INC.
20 40 Rector Street, 9th Floor
New York, NY 10006
21 albert@stopspying.org
22 Attorneys for Plaintiffs Cat Brooks and
Rasheed Shabazz and the Proposed Class
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Plaintiffs’ Opposition to Motion to Stay Discovery
Case No. 3:21-CV-1418-EMC
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