Reeds Opp To Plaintiffs Motion To Strike Doc 518

Case 8:11-cv-00485-AG-AJW Document 518 Filed 05/07/12 Page 1 of 30 Page ID #:13620
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JAMES F. McCABE (CA SBN 104686) JMcCabe@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 MICHAEL B. MILLER (Pro Hac Vice) MBMiller@mofo.com MORRISON & FOERSTER LLP 1290 Avenue of the Americas New York, New York 10104-0050 Telephone: 212.468.8009 Facsimile: 212.468.7900 Attorneys for Reed Elsevier Inc., LexisNexis Risk and Information Analytics Group Inc., LexisNexis, Inc., LexisNexis Risk Solutions, Inc., LexisNexis ChoicePoint, Inc., LexisNexis Seisint, Inc., d/b/a Accurint, and LexisNexis Group Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION LISA LIBERI, et al., Plaintiffs, v. ORLY TAITZ, et al., Defendants. Case No. CV11-00485 AG (AJWx) LEXISNEXIS DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS REQUEST TO STRIKE AND EVIDENTIARY OBJECTIONS Date: Time: Judge: Place: May 21, 2012 10:00 a.m. Hon. Andrew J. Guilford Courtroom 10D
LEXISNEXIS DEFS. OPPN TO PLS. REQUEST TO STRIKE CASE NO. CV11-00485 AG (AJWx) sf-3142881
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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... ii I. II. PRELIMINARY STATEMENT ................................................................... 1 THE LEXISNEXIS DEFENDANTS FULLY COMPLIED WITH THEIR DISCOVERY OBLIGATIONS........................................................ 5 A. Plaintiffs Failed to Cooperate with the LexisNexis Defendants Throughout the Discovery Process, in Violation of the Spirit and Letter of Rule 26. ................................................................................ 5 B. The LexisNexis Defendants Made the Necessary Disclosures........... 7 C. The LexisNexis Defendants Wereand RemainWilling to Produce Documents So Long as the Information Therein Is Protected from Improper Disclosure and Use................................... 10 PRECLUSION OF EVIDENCE IS NOT APPROPRIATE BECAUSE PLAINTIFFS CANNOT SHOW ANY PREJUDICE................................. 12 A. The Court Should Deny Plaintiffs Request to Strike Because Plaintiffs Have Not Been Prejudiced. ............................................... 12 B. Preclusion Is Not Mandatory Where Less Severe Remedies Would Suffice.................................................................................... 15 PLAINTIFFS EVIDENTIARY OBJECTIONS ARE MERITLESS. ....... 16 A. B.
Plaintiffs Objections to the Sankey Declaration are Meritless. ....... 16 The Objections to the Simmons Declaration and Exhibits Are Meritless. ........................................................................................... 20 1. The Simmons Declaration and Exhibits Have Been Authenticated. ......................................................................... 20 2. The Simmons Declaration and Exhibits Are Not Hearsay. .... 22 3. The Simmons Declaration is not irrelevant. ........................... 23 C. The Objections to the Policastro Declaration Are Meritless. ........... 23 CONCLUSION...................................................................................................... 24
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TABLE OF AUTHORITIES Page(s) CASES Block v. City of L.A., 253 F.3d 410 (9th Cir. 2001) ..............................................................................20 Dobson v. Twin City Fire Ins. Co., No. SACV 11-0192-DOC, 2011 U.S. Dist. LEXIS 144394 (C.D. Cal. Dec. 14, 2011)................................12 Frank Music Corp. v. Metro Goldwyn Mayer, Inc., 772 F.2d 505 (9th Cir. 1985) ..........................................................................7, 11 Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003) ............................................................................20 Go Video v. Motion Picture Assn of Am. (In re Dual Deck Video Cassette Recorder Antitrust Litig.), 10 F.3d 693 (9th Cir. 1993) ................................................................................12 Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011) ..............................................................................12 Hughes v. United States, 953 F.2d 531 (9th Cir. 1992) ..............................................................................21 JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47, 50-51 (1st Cir. 1999) ...............................................................11, 14 Lanard Toys, Ltd., 375 F. Appx 705 (9th Cir. 2010) .......................................................................13 Metabolife Intl, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) ..............................................................................15 Mformation Techs., Inc. v. Research in Motion Ltd., No. C 08-04990 JW, 2012 U.S. Dist. LEXIS 56784 (N.D. Cal. Mar. 29, 2012) ...........................13, 14 NW Pipe Co. v. Dewolff, Boberg & Assocs., Inc., No. EDCV 10-0840, 2012 U.S. Dist. LEXIS 5382 (C.D. Cal. Jan. 17, 2012).....................................15
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Stuart v. UNUM Life Ins. Co. of Am., 217 F.3d 1145 (9th Cir. 2000) ......................................................................17, 22 United States ex rel. OConnell v. Chapman Univ., 245 F.R.D. 652 (C.D. Cal. 2007)........................................................................14 United States v. Childs, 5 F.3d 1328 (9th Cir. 1993) ................................................................................23 United States v. Pang, 362 F.3d 1187 (9th Cir. 2004) ............................................................................22 RULES Fed. R. Civ. P. Rule 26 .........................................................................................................passim Rule 26(a)(1).........................................................................................................5 Rule 26(a)(1)(A)(i) ...............................................................................................7 Rule 26(c)(1)(G) .................................................................................................12 Rule 26(d)(1).......................................................................................................10 Rule 26(e)..............................................................................................................8 Rule 26(e)(1)(A) ...................................................................................................8 Rule 26(f) ................................................................................................1, 5, 6, 10 Rule 26(f)(1), (2)...................................................................................................5 Rule 30(b)(6)...................................................................................................7, 13 Rule 37 .........................................................................................................passim Rule 37(c)(1).......................................................................................................12 Rule 56 ................................................................................................................20 Rule 56(d) .................................................................................................3, 13, 15 Fed. R. Evid. Rule 402 ..............................................................................................................23 Rule 403 ..............................................................................................................24 Rule 801(c)..........................................................................................................17 Rule 803(6) .........................................................................................................23 Rule 901(b)(1).....................................................................................................21 C.D. Cal. Local Rules Rule 37 ..................................................................................................................2 Rule 37-1...............................................................................................................2 Rule 37-2.4............................................................................................................2
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OTHER AUTHORITIES 11-56 Moores Federal Practice Civil 56.91 .....................................................20 5-901 Weinsteins Federal Evidence 901.03...............................................................................................................21
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Defendants Reed Elsevier Inc., LexisNexis Risk and Information Analytics Group Inc., LexisNexis, Inc., LexisNexis Risk Solutions, Inc., LexisNexis ChoicePoint, Inc., LexisNexis Seisint, Inc., d/b/a Accurint, and LexisNexis Group Inc. (the LexisNexis Defendants) respectfully submit this opposition to Plaintiffs Request to Strike and Evidentiary Objections Submitted in Support of the Reed Defendants Motion for Summary Judgment (the Request to Strike). The LexisNexis Defendants respectfully request that this Court deny the Request to Strike for the reasons discussed below. I. PRELIMINARY STATEMENT The LexisNexis Defendants have spent months trapped in the crossfire of a dispute that does not involve them, trying to parse the allegations against them while attempting to comply in good faith with their obligations under the Federal Rules of Civil Procedure. Plaintiffs have not made this an easy task. For example, the LexisNexis Defendants repeatedly sought an initial conference under Rule 26(f), so that the parties could exchange information about the scope and nature of their claims; Plaintiffs counsel rejected or ignored these requests. The LexisNexis Defendants told Plaintiffs that they needed protection to make sure that their good faith production of information in this case did not become the fact pattern for a new case between the warring parties; Plaintiffs never disputed this legitimate objection, but refused to seek entry of that proposed protective order or otherwise respond to the LexisNexis Defendants repeated and continuing offers to reach some alternative resolution that addressed both parties concerns. Now, after sitting back and watching the clock run out on their discovery timeline, Plaintiffs cobble together sundry procedural and evidentiary objections that were not pursued or even raised previously and that are aimed at avoiding the merits of the LexisNexis Defendants Motion for Summary Judgment. Plaintiffs argue that Rule 37 of the Federal Rules of Civil Procedure provides that (1) the documents attached to the LexisNexis Defendants Motion for Summary Judgment
LN DEFS. OPPN TO PLS. REQ. TO STRIKE CASE NO. CV11-00485 AG (AJWx) sf-3142881
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should be stricken because they were not previously produced to Plaintiffs as part of the LexisNexis Defendants Initial Disclosures; (2) the declarations of Lisa Policastro and Lisa Simmons should be stricken because Policastro and Simmons were not identified by name as witnesses in the LexisNexis Defendants Initial Disclosures; (3) the declaration of Neil Sankey should be stricken based on an interpretation of the facts that counsel for the Plaintiffs knows to be false; and (4) the documents attached to the Simmons Declaration should be stricken because they have not been properly authenticated or are otherwise inadmissible. Plaintiffs motion is in violation of this Courts order dated June 14, 2011, (Docket No. 227) requiring leave before filing any motion or other documents in this case and, even if the Court reaches the merits, their arguments are simply wrong. First, in what has become their modus operandi, Plaintiffs make this motion without complying with their obligation to meet and confer with the LexisNexis Defendants. Pursuant to Local Civil Rule 37, prior to filing a discovery motion, a party must first arrange for a conference with the opposing party. C.D. Cal. L.R. 37-1. This requirement includes motions like this one, which are themselves premised on Rule 37. Had Plaintiffs attempted to confer with the LexisNexis Defendants prior to filing the instant Request to Strike, the parties might have been able to find a way to resolve Plaintiffs alleged grievances without burdening this Court. Indeed, the LexisNexis Defendants tried to reach out to Plaintiffs counsel even after the filing of Plaintiffs motion to address any concerns, but received no response. (Declaration of Michael B. Miller in Further Support of the LexisNexis Defendants Motion for Summary Judgment (Miller Decl.) 23.) Instead, Plaintiffs ignored the requirements of Local Rule 37 and continue to pursue this Request to gain tactical advantage. (Id.) Under the plain terms of Local Rule 372.4, this is fatal to their Request to Strike, and their motion should be denied on this basis alone.
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Second, as a matter of substance, the LexisNexis Defendants did not violate Rule 26. Thus, the evidence they seek to introduce should not be struck under Rule 37. To the contraryany departures from the usual discovery procedures resulted from the Plaintiffs own disregard of the Federal Rules. It is noteworthy in this regard that Plaintiffs do not argue that the facts included in the Simmons and Policastro declarations were withheld from them and they do not mention at all the LexisNexis Defendants subsequent discovery responses or their unresolved objections to Plaintiffs discovery requests and requests for initial disclosures their only complaint with respect to those declarations stems from what they perceive as the failure to expressly disclose the identity of the declarants in the LexisNexis Defendants Initial Disclosures. In fact, the Simmons and Policastro declarations were offered in the nature of a corporate declaration designed to put before the Court certain documentary evidence and reports as to corporate systems. The LexisNexis Defendants disclosed during discovery both that such testimony would be offered and the substance of that testimony, in full compliance with Rule 26. The LexisNexis Defendants did not identify Ms. Simmons and Ms. Policastro as potential witnesses until shortly before the submission of the declarations (which, in any event, also effectively disclosed their identities in satisfaction of Rule 37). Similarly, Plaintiffs do not mention that they never disputed the LexisNexis Defendants legitimate and well-taken objection to producing documents in the absence of a protective order, and that the LexisNexis Defendants asserted that objection in a timely manner. Nor do Plaintiffs mention that the parties had agreed on a way of dealing with those objections, but that the Plaintiffs failed to follow through or respond to the LexisNexis Defendants attempt to work out alternative means of addressing these issues in the face of Plaintiffs inaction. Third, Plaintiffs have not been prejudiced here. They do not contend that they were prevented from presenting the best arguments available to them (such as
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they are) in their Opposition to the Motion for Summary Judgment, let alone provide the showing required under Rule 56(d) that, for specified reasons, they cannot present facts essential to justify [their] opposition. See Fed. R. Civ. P. 56(d). Indeed, even after filing their motion for summary judgment and receiving Plaintiffs opposition, the LexisNexis Defendants continued to seek to contact Plaintiffs counsel and address Plaintiffs concerns, legitimate or not. Plaintiffsas has been their practice throughout this litigationsimply refused to cooperate or otherwise engage. Even if Plaintiffs motion were granted, all that would accomplish is forcing the parties to re-litigate the motion for summary judgment on what would inevitably be the same record. Plaintiffs cannot show any prejudice, as required under Rule 37. Fourth, with respect to the challenged documents that were attached to the Sankey declaration, in fact the documents and information produced in the Sankey Declaration are precisely what Mr. Sankey says they are, and Plaintiffs know full well that this is the case. Their argument to the contrary is frivolous. Finally, none of the hodgepodge of Plaintiffs other evidentiary objections is well taken. The documents attached to the Motion for Summary Judgment are admissible on a motion for summary judgment under well-accepted evidentiary principles. Of course, had Plaintiffs responded to the LexisNexis Defendants many overtures to get a proper discovery process underway or raised the issues presented on their current Motion to Strike directly with the LexisNexis Defendants, the parties could have reached a mutually-agreeable resolution to all of the discovery issues, and this motion would not be necessary. But that is not the course Plaintiffs chose to take.
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II.
THE LEXISNEXIS DEFENDANTS FULLY COMPLIED WITH THEIR DISCOVERY OBLIGATIONS Plaintiffs motion is based on a topsy-turvy account of events in which the
LexisNexis Defendants violated their obligations under Rule 26 by, according to Plaintiffs, failing to properly supplement their Initial Disclosures or to produce documents as part of their Initial Disclosures. According to Plaintiffs version of events, the LexisNexis Defendants withheld information from their Initial Disclosures and dragged their feet at producing documents, all as part of a concerted effort to gain a tactical advantage over Plaintiffs on a Motion for Summary Judgment. (Request to Strike at 3.) Plaintiffs have it backwards. In fact, the LexisNexis Defendants have done nothing but attempt in good faith to meet Plaintiffs discovery demand, while at the same time seeking to ensure that their proprietary information remained confidential and was not misused by Plaintiffs to launch another battle with the Taitz and Sankey Defendants or someone else. The difficulties started right at the beginning of the discovery process, when Plaintiffs refused to hold a Rule 26(f) conference. To the extent discovery in this case has not proceeded in a conventional way, the fault lies with Plaintiffs. As such, the present circumstances do not warrant an exercise of the Courts discretion to strike the LexisNexis Defendants evidence. A. Plaintiffs Failed to Cooperate with the LexisNexis Defendants Throughout the Discovery Process, in Violation of the Spirit and Letter of Rule 26.
There is no denying that the discovery process in this case has been more difficult than was necessary. But the fault lies with Plaintiffs, not the LexisNexis Defendants. As described in detail in the Miller Declaration, Plaintiffs refused to engage in a proper Rule 26(f) conference prior to the start of discovery, denying the LexisNexis Defendants their right to obtain more information about the claims against them and to coordinate the discovery process going forward. (Miller Decl.
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3-7.) Rule 26(f) requires that parties to a litigation confer as soon as is practicable to discuss the nature of their claims and defenses and to make or arrange for the disclosures required by Rule 26(a)(1). Fed. R. Civ. P. 26(f)(1), (2). A Rule 26(f) conference is vital in every case, but the LexisNexis Defendants believed (and told Plaintiffs repeatedly) that a Rule 26(f) conference was especially important in this case, where the allegations against the LexisNexis Defendants are confusing and dealing with counsel is often difficult. (see, e.g., Miller Decl. 2-6, 16.) Plaintiffs refused to participate in a Rule 26(f) conference, and instead insisted that the LexisNexis Defendants provide their Initial Disclosures without one. (Id., 3, 5, 6.) The LexisNexis Defendants objected to this way of proceeding as contrary to the Federal Rules and unwise. (Miller Decl. 3.) They ultimately agreed to produce some form of initial disclosures in an effort to accommodate Plaintiffs counsel at the beginning of the discovery process and in an effort to get that process started, but repeatedly and expressly reserved their rights. They made clear that the Plaintiffs failure to comply with Rule 26(f) affected the substance of the Initial Disclosures, and that the Initial Disclosures remained subject to their objections. (Id.) The Plaintiffs did not challenge this objection at the time, but instead sought certain specific supplementation of the Initial Disclosures. (Id. 5-6.) In ultimately providing that supplementation, the LexisNexis Defendants again objected to the process, and made clear that, given Plaintiffs refusal to hold an initial Rule 26(f) conference, they would only supplement as specifically requested and did not waive their objections or otherwise supplement the responses on an ad hoc basis whenever the Plaintiffs sought a meet-and-confer on limited issues. (Id 6, 12, 13.) The LexisNexis Defendants offered to meet and confer about the supplement, but suggested that the parties could more profitably focus on their specific discovery requests and responses since the parties had moved into specific discovery requests. (Miller Decl. 6.) Plaintiffs did not accept this offer, or
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otherwise seek to meet and confer over the LexisNexis Defendants Supplemental Initial Disclosures. For Plaintiffs now to seek to enforce obligations under Rule 26(f) without mentioning this specific history, as if they themselves had complied with the Rule, is fundamentally unfair. Other courts in similar circumstances have refused such a request, and Plaintiffs motion should be denied for this reason alone. See Frank Music Corp. v. Metro Goldwyn Mayer, Inc., 772 F.2d 505, 515 n.9 (9th Cir. 1985) (motion to exclude properly denied where moving party dilatory in pursuing discovery). B. The LexisNexis Defendants Made the Necessary Disclosures.
Plaintiffs argue that the Simmons and Policastro declarations should be stricken in their entirety because the LexisNexis Defendants did not include the declarants specific names in the Initial Disclosures. Even assuming that Plaintiffs can be heard to say anything about Rule 26s requirements given the above, Plaintiffs argument is wrong on both the facts and the law. First, the LexisNexis Defendants Initial Disclosures met the requirements of Rule 26. The LexisNexis Defendants disclosed all individuals likely to have discoverable information relevant to this dispute, Fed. R. Civ. P. 26(a)(1)(A)(i), and also disclosed that the defendants themselves would have information to provide, albeit not as percipient witnesses but rather in the manner of Rule 30(b)(6) testimony. The LexisNexis Defendants noted in their Initial Disclosures that they as defendants would have information, thereby inviting a Rule 30(b)(6) deposition request. The fact that Plaintiffs chose not to notice a Rule 30(b)(6) deposition is not the LexisNexis Defendants fault, given that the LexisNexis Defendants disclosed that the corporate parties would have evidence to offer. This is precisely the sort of corporate representative testimony that the challenged Policastro and Simmons Declarations provided as part of this summary judgment motiontheir statements and accompanying documents concern the
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general nature of the LexisNexis Defendants business and the content of on-line business systems that are not amenable to actual production. For example, in her declaration Ms. Policastro described the information that certain LexisNexis business systems does and does not contain, described a query she ran on those systems, and then recounted the results of that query. Similarly, Ms. Simmons declaration attaches admissible documents and puts them into context by setting forth the relevant sections. This testimony could have been offered by any number of people (as the LexisNexis Defendants disclosed in their discovery responses), including the percipient witnesses identified by name repeatedly by the LexisNexis Defendants. Second, by focusing solely on the Initial Disclosures and ignoring later discovery and the parties various meet-and-confer conference calls, Plaintiffs misstate the law: Rule 26(e) expressly provides that a party can supplement its initial disclosures through means other than the initial disclosures themselves, including by making information known to the other party, through other written discovery responses or otherwise. See Fed. R. Civ. P. 26(e)(1)(A) (permitting supplementation in writing or otherwise during the discovery process). That is what has happened here. The very facts described by Ms. Policastro and also Ms. Simmons were disclosed to Plaintiffs in the LexisNexis Defendants discovery responses and in various meet-and-confer conferences (including the meet-and-confer with respect to the LexisNexis Defendants anticipated motion for summary judgment, where the substance of the declarations was disclosed). (Miller Decl. 4.) Again, it is telling that Plaintiffs very specifically challenge an alleged failure to supplement the Initial Disclosures only, not a failure to disclose more generally. This is because they cannot find fault in the LexisNexis Defendants disclosures. For example, in the LexisNexis Defendants Responses and Objections to Plaintiffs Interrogatories, the LexisNexis Defendants noted that Plaintiffs First Amended Complaint bears no
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relation to Defendants actual business, and thus any individual with knowledge of Defendants business (and these are too numerous to mention) would conceivably have information relating to Defendants defenses . . . (Response No. 2 in LexisNexis Risk Data Management Inc.s Responses to Plaintiffs First Set of Interrogatories Addressed to Defendant Seisnt, Inc., d/b/a Accurint.) The LexisNexis Defendants objected to identifying the name of the corporate witness to be designated as part of the discovery or to being forced to identify all of the individuals with such knowledge.1 Plaintiffs never challenged that objection in any of the parties meet-and-confer communications or otherwise. The LexisNexis Defendants further noted in discovery that, the nature of Defendants business and the inapposite nature of the Amended Complaints allegations is widely known within Defendants organization in particular and the industry as a whole. (See Miller Decl. Ex. A (Response No. 2 in LexisNexis Risk Data Management Inc.s Responses to Plaintiffs First Set of Interrogatories Addressed to Defendant Seisnt, Inc., d/b/a Accurint ).) Moreover, the LexisNexis Defendants expanded on these substantive issues in their discovery responses, and provided a wealth of information including the information included in the Simmons and Policastro declarations. (See, e.g., id. Response Nos. 3, 4, 9, 10, 11, 13, 21, 24, and 25.) To be sure, there are also individuals within the LexisNexis Defendant corporations who do have particular knowledge of the facts and circumstances of this dispute as percipient witnessesi.e., individuals who had direct contact with Plaintiffs and who have percipient knowledge of the facts of Plaintiffs interactions with the LexisNexis Defendants. Those individuals namesJennifer Jung, Linda Clark, and Kevin Foleywere disclosed to the Plaintiffs by phone, in the In fact, Ms. Simmons and Ms. Policastro had not yet been identified by the LexisNexis Defendants as the corporate representatives. They were identified shortly before their declarations were served on Plaintiffs. (Miller Decl. 17.)
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LexisNexis Defendants Supplemental Initial Disclosures on March 2, 2012, and in the LexisNexis Defendants discovery responses. (Miller Decl. Ex. A (Response No. 1.) Thus, the LexisNexis Defendants complied with their obligations under Rule 26, and should not be subject to any sanction under Rule 37. C. The LexisNexis Defendants Wereand RemainWilling to Produce Documents So Long as the Information Therein Is Protected from Improper Disclosure and Use.
Plaintiffs also challenge the inclusion of certain documents as exhibits to the LexisNexis Defendants summary judgment motion because they say those documents have not been produced to the Plaintiffs. Again, Plaintiffs are telling only half the story. Even before they received any document requests from Plaintiffs, the LexisNexis Defendants made clear that they would only produce documents if the parties entered into an appropriate protective order. (Miller Decl. 8, 9, 19, 20.) The LexisNexis Defendants made this objection early to give Plaintiffs a chance to address it (this is the sort of issue that is usually addressed in a Rule 26(f) conference). The LexisNexis Defendants did not simply make this demand and then sit back and wait for a protective order to be entered; rather, in a process agreed to by the parties, counsel for the LexisNexis Defendants drafted a proposed order, and sent Plaintiffs a copy of that order on February 9, 2012. (Miller Decl. 8, 9.) The LexisNexis Defendants did this early in the parties discovery process in order to ensure that the parties had plenty of time to address LexisNexiss confidentiality concerns.2 Plaintiffs said that they agreed with the LexisNexis Defendants concerns and were willing to address them. Before their discovery responses were due, the The only valid discovery requests issued in this action by the Plaintiffs to the LexisNexis Defendants were served on February 2, 2012. The LexisNexis Defendants responses were due to be served by mail on March 5, 2012, the day of the discovery cut-off. The parties later extended that deadline to March 8 so long as the responses were served by email. (Miller Decl. 7.)
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LexisNexis Defendants drafted and sent to Plaintiffs a proposed form of protective order. (Id.) Plaintiffs never told the LexisNexis Defendants that they were not going to proceed as had been agreed and have never offered comments on the protective order. The LexisNexis Defendants re-asserted their objections to production in the absence of confidentiality and use protections in their formal discovery responses. (See, e.g., Miller Decl. Ex. C (Response Nos. 1, 3, 5, 6, 9, 11, 12, 19, 22).) Plaintiffs did not challenge the LexisNexis Defendants stated objections in response to discovery. (Miller Decl. 20.) Faced with Plaintiffs inaction on the one hand and their repeated demands for a production on the other, the LexisNexis Defendants proposed that the parties discuss an alternative resolution so as to keep the case moving with some semblance of order: counsel to the LexisNexis Defendants told Plaintiffs counsel repeatedly, and as recently as April 30, 2012, that they would be willing to produce documents without a protective order in place, so long as the parties reached an agreement aimed at maintaining the documents confidentiality. (Miller Decl. 19, 23.) Again, Plaintiffs did not object to the proposal, nor argue that the LexisNexis Defendants confidentiality concerns were unwarranted or illegitimate. Instead, they simply ignored the LexisNexis Defendants proposals and efforts to communicate, and brought this motion instead. (Miller Decl. 23.) The motion is wholly inappropriate. As the court explained in JOM, Inc. v. Adell Plastics, Inc., a party cannot lay in wait, without making any attempt to obtain documents it knows to exist, and then strategically seek exclusion of those documents at the last moment. 193 F.3d 47, 50-51 (1st Cir. 1999) (denying request to exclude documents where party seeking exclusion had not sought voluntary production or filed a motion to compel, but instead bided its time in order to exploit its adversarys alleged discovery violation; no preclusion because objection should have been raised during discovery and brought to the courts attention then); cf. Frank Music, 772 F.2d at 515 (noting that a party satisfies its
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obligations when the underlying documents are made available for inspection . . . and this is so even if opposing counsel fails to avail himself of the opportunity to review the documents). Thus, the LexisNexis Defendants have not made a formal production of documents to date because, despite the Plaintiffs stated agreement to resolve this issue cooperatively, Plaintiffs have not carried through in that agreement. The LexisNexis Defendants had every right to demand such protection and Plaintiffs cooperation, especially in a case involving allegations that the parties misused confidential information. See Fed. R. Civ. P. 26(c)(1)(G) (court may issue an order regarding the disclosure of a trade secret or other confidential research, development, or commercial information); see, e.g., Go Video v. Motion Picture Assn of Am. (In re Dual Deck Video Cassette Recorder Antitrust Litig.), 10 F.3d 693, 695 (9th Cir. 1993) (recognizing that protective orders are often stipulated to in disputes involving business entities); Dobson v. Twin City Fire Ins. Co., No. SACV 11-0192-DOC (MLGx), 2011 U.S. Dist. LEXIS 144394, at *10-11 (C.D. Cal. Dec. 14, 2011) (insurance companys reserve information qualifies as a trade secret or other confidential research, development, or commercial information under Rule 26). As such, the LexisNexis Defendants conduct is substantially justified, precluding the application of Rule 37. Fed. R. Civ. P. 37(c)(1); Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) (a court will not preclude a party from using previously undisclosed information or witnesses if the failure to disclose was substantially justified or is harmless) (internal citations omitted). III. PRECLUSION OF EVIDENCE IS NOT APPROPRIATE BECAUSE PLAINTIFFS CANNOT SHOW ANY PREJUDICE. A. The Court Should Deny Plaintiffs Request to Strike Because Plaintiffs Have Not Been Prejudiced.
Plaintiffs allege that they have been denied the opportunity to analyze these documents; [and have] been denied the ability to depose and examine Defendants
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Employees [sic], Lisa Simmons and Lisa Policastro; and resellers of the Reed Defendants. . . (Request to Strike at 6.) Plaintiffs allegations thus require the Court to accept the assumption that, had the LexisNexis Defendants provided a more complete disclosure, Plaintiffs would have noticed Policastros and Simmonss depositions, or taken further steps to enter the LexisNexis Defendants proposed protective order. But Plaintiffs conduct in this case supports just the opposite conclusion. Plaintiffs could have taken a Rule 30(b)(6) deposition of the LexisNexis Defendants; instead, they did not notice a single deposition or even raise the possibility of doing so. (Miller Decl. 22.) They could have taken steps to enter the proposed protective order; instead, they did nothing while continuing to demand that the LexisNexis Defendants produce confidential information. (Miller Decl. 19, 23.) Moreover, Plaintiffs served their discovery requests so that the responses were due on the last day of the discovery period. In sum, Plaintiffs lack of diligence throughout the discovery period undermines their assertion of prejudice. See Lanard Toys, Ltd., 375 F. Appx 705, 713 (9th Cir. 2010) (district court did not abuse its discretion by letting expert testify at trial where appellants could have deposed the expert but chose not to); see also Mformation Techs., Inc. v. Research in Motion Ltd., No. C 08-04990 JW, 2012 U.S. Dist. LEXIS 56784, at *34 (N.D. Cal. Mar. 29, 2012) (finding no harm where defendants had ample opportunity to examine the information at issue, but waited a year to do so). Furthermore, in this context the only prejudice that even conceivably could be shown by the Plaintiffs would be if the alleged failure to disclose affected the Plaintiffs ability to oppose the pending motion for summary judgment. But Plaintiffs never allege that they have been deprived of any facts essential to justify [their] opposition to the Motion for Summary Judgment, let alone to make the required showing under Rule 56(d). Fed. R. Civ. P. 56(d). Indeed, Plaintiffs briefing on the present motion supports just the opposite conclusion: Plaintiffs submitted a 25-page brief in Opposition to the Motion for Summary Judgment,
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making extensive citation to their own documents and declarations, as well as to the documents and declarations submitted by the LexisNexis Defendants. In other words, even if Plaintiffs did not have access to certain information before the LexisNexis Defendants made their motionand as shown above, Plaintiffs did have such accessthe information was certainly available to them by the time they submitted their opposition. No harm has been done. Plaintiffs have had plenty of time and opportunity in which to cure the alleged prejudice, if there is any. See Mformation Techs., Inc., 2012 U.S. Dist. LEXIS, at *34 (finding no harm where information was ultimately produced 15 months prior to trial); see also United States ex rel. OConnell v. Chapman Univ., 245 F.R.D. 652, 655 (C.D. Cal. 2007) (finding that the potential prejudice to the defendant was not so severe as to warrant exclusion, especially given the possibility of ameliorating the prejudice through other means). The LexisNexis Defendants have repeatedly offered to meet and confer with Plaintiffs over these issues, but have not received a response, including to their most recent communication sent only last week. (Miller Decl. 8, 18-23.) Finally, if Ms. Simmons and Ms. Policastros declarations are precluded, the LexisNexis Defendants would be able to introduce their testimony through one of the several other identified witnesses. This is because those witnesses have the same knowledge as Ms. Simmons and Ms. Policastro on these points. Plaintiffs now have the documents they were allegedly deprived of; they know the identities of particular employees of the LexisNexis Defendants. They may not, however, simply sit on their discovery rights and then seek exclusion of evidence at the last minute for their own strategic advantage, see JOM, Inc., 193 F.3d at 50-51, or require the LexisNexis Defendants to refile this same motion when doing so will not change anything.
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B.
Preclusion Is Not Mandatory Where Less Severe Remedies Would Suffice.
Even if one assumes that something was not disclosed and that the alleged nondisclosure was not substantially justified or harmless, striking the LexisNexis Defendants Declarations and Exhibits still would not be appropriate. Rule 37 expressly provides that preclusion of evidence not produced in discovery is not mandatory. Courts in this District have, for example, reopened discovery for limited purposes and ordered the non-disclosing party to supplement its discovery responses rather than exclude undisclosed evidence in response to a Rule 37 motion. NW Pipe Co. v. Dewolff, Boberg & Assocs., Inc., No. EDCV 10-0840, 2012 U.S. Dist. LEXIS 5382, at *12 (C.D. Cal. Jan. 17, 2012) (denying request to exclude evidence and noting that the fact that this sanction can be imposed does not necessarily mean that it should). Or, if this Court desires, the LexisNexis Defendants could re-file their motion using the testimony of one of the previously identified witnesses, or after supplementing their previous discovery. Here, trial is months, if not years, away, and no trial date is scheduled. If what Plaintiffs sought was additional discovery on specific issues, they should have moved under Rule 56(d) for more time to obtain discovery and/or take depositions. See Fed. R. Civ. P. 56(d) (If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery. . .); see also Metabolife Intl, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (Rule 56(d) requires discovery where the nonmoving party has not had the opportunity to discover information that is essential to its opposition.) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). Alternatively, they should have sought to meet-and-confer on these issues and, if they thought it necessary, moved to compel responses.
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Plaintiffs have not cited a single Rule 37 case in which Rule 37 has been enforced where a party had objections outstanding on the relevant discovery issues. Instead, they ask the Court to punish the LexisNexis Defendants in a bid to further delay the exit from this case of parties with no relevant contacts to the underlying dispute. Such maneuvers do not warrant the Courts exercise of discretion, and the motion to exclude should therefore be denied. IV. PLAINTIFFS EVIDENTIARY OBJECTIONS ARE MERITLESS. In their Request to Strike, Plaintiffs also interpose certain evidentiary objections to the LexisNexis Defendants declarations and exhibits. Chiefly, they argue that the declarations and exhibits are inadmissible because they are hearsay and have not been authenticated. They also argue that the Sankey Declaration should be stricken based on an argument that Plaintiffs counsel knows is false. These objections are meritless. A. Plaintiffs Objections to the Sankey Declaration are Meritless.
In their moving papers, the LexisNexis Defendants noted in a brief footnote that Neil Sankey did not obtain from the LexisNexis Defendants the so-called personal identifying information identified by the Plaintiffs in their First Amended Complaint. (Opening Br. at 8-9 n.3.) In support of this fact, the LexisNexis Defendants submitted a declaration from Neil Sankey in which he described exactly how he obtained that personal identifying information. Mr. Sankey testified to the following in his Declaration: I obtained the so-called personal identifying information regarding Liberi including her full Social Security number and date of birth from court filings made by Ms. Liberi as detailed below. I obtained the court filings directly from the courts in question, before the e-mailing referred to by the Plaintiffs. None of the LexisNexis Defendants was involved in any way in my retrieval of these publicly available documents.
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(Sankey Decl. 3.) Mr. Sankey went on to describe in detail the two documents from which he obtained the so-called personal identifying information. The first document, attached as Exhibit A to his declaration, was a copy of the Declaration of Lisa Liberi that was filed by Ms. Liberi on September 21, 2006, in a criminal action brought against Ms. Liberi in San Bernardino, California (Case FWV 028000). Mr. Sankey noted that, [i]n that declaration, Ms. Liberi sets forth her full unredacted social security number, her date of birth, her marriage history (along with maiden names and her husbands name) and some portion of her criminal history. (Sankey Decl. 4.) Mr. Sankey expressly identifies the document attached as Exhibit A as a true and correct copy of the filing made by Ms. Liberi that he obtained from the court records. (Id.) He does not identify the document as one that he currently maintains in his files. The second document described by Mr. Sankey, attached as Exhibit B to his declaration, was a copy of certain documents filed by Ms. Liberi in connection with a bankruptcy action filed on behalf of Lisa Liberi in the U.S. Bankruptcy Court in the Central District of California (Bankruptcy Petition No. 6:02-bk-22845-PC). Mr. Sankey notes that this document included full unredacted social security numbers related to Ms. Liberi (although Exhibit B itself includes only redacted numbers). (Sankey Decl. 5.) Again, he did not identify the document as one that he currently maintains in his files. These documents were not provided for the truth of the matters asserted therein, and thus are not hearsay. Fed. R. Evid. 801(c); Stuart v. UNUM Life Ins. Co. of Am., 217 F.3d 1145, 1154 (9th Cir. 2000) (statements not offered for the truth of the matters asserted were not hearsay). Rather, their mere existence supports Mr. Sankeys testimony that proves where the so-called personal identifying information regarding Liberi came from, if not from the LexisNexis Defendants.
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Plaintiffs do not present any evidence that suggests that these documents are not exactly what Mr. Sankey says they are. If any such evidence existed, one would have expected Ms. Liberi to include it in her declaration. In fact, however, Ms. Liberis declaration is silent on the subject, and does not try to suggest that she did not author these documents in the criminal and bankruptcy actions, or try to challenge the authenticity of her signature on each document. Plaintiffs counsel takes a different approach. He seizes on the footnote in the opening summary judgment brief and argues that the header on top of each of Exhibit A and Exhibit B reflects that Mr. Sankey did not obtain the copies attached to his declaration directly from the court file, as he states, but instead that Mr. Sankey obtained copies of these documents for the first time from counsel for Ms. Taitz after they were filed with this Court on July 11, 2011. Plaintiffs counsel argues that counsel for Ms. Taitz obtained these documents for the first time on June 20, 2011. He comes to that conclusion by submitting a page from Ms. Liberis criminal court record showing that someone paid a Fine in that criminal action against Ms. Liberi on June 20, 2011 for $116.00 (Berg Decl., Ex. 12.) Plaintiffs counsel then states (without any apparent basis) that this Fine was actually a reproduction charge from the San Bernardino courts clerks office for the eightpage Liberi declaration noted above. Plaintiffs counsel knows or should know that this argument is false. The only logical assumption is that he is intentionally trying to mislead the Court. First, Plaintiffs counsel knows that counsel for Ms. Taitz did not obtain this document on June 20, 2011. He knows this because the Liberi declaration was first filed on June 14, 2010, by the Taitz Defendants in the predecessor action to this one that Plaintiffs and the Taitz and Sankey Defendants had been litigating in the Eastern District of Pennsylvania. (See Miller Decl., Ex. F at 15-16, 18-23.) Similarly, it appears that other documents from the same Liberi bankruptcy filing
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were part of this same filing in 2010, and those documents also included Ms. Liberis unredacted social security number. (Id. at 13-14.) Plaintiffs counsel moved to strike the June 16, 2010, filing and to sanction counsel for the Taitz Defendants. (See Miller Decl., Ex. E.) However, in his filing, Plaintiffs counsel directed the reader to where the documents could be obtained from an internet site. (Id. at 1.) There is other record evidence that confirms Mr. Sankeys account in his declaration and that puts the lie to Plaintiffs counsels dishonest argument. For example, on March 15, 2009 (long before the July 11, 2011, date relied on by Mr. Berg), Mr. Sankey wrote an email to Ms. Ostella in which he told Ms. Ostella, If you would pass this on to Dr. O, I will go out to San Bdo this week and have a look at the 2002 file, dontcha think? (Miller Decl., Ex. G.) This reference is consistent with and tends to confirm Mr. Sankeys sworn declaration that he obtained the information from court records in San Bernardino (San Bdo). Similarly, in a radio interview on May 28, 2009, Mr. Sankey provided an account of where he obtained the relevant information that confirms the sworn account provided in his declaration: [Ms. Taitz] asked me to find out whether, she had heard from another source, that Lisa Liberi had a criminal record and that her real name was other than Lisa Liberi. And she asked me to look into it. And of course, as soon as you look at the records in San Bernardino and I would add that these are public records, they are open, Internet, anybody can, any one of you can go in there and look at these records page by page. It is all totally public, as is the bankruptcy court and you can see all of this stuff there. There it is. There is an index online, at the courthouse, or through the courthouse. Where you can index her by name, by case number whichever way you want to do it. And it will tell you everything Ive given out. Everything is out there (See Miller Decl., Ex. H (emphasis supplied).) Plaintiffs counsels argument with respect to those exhibits from the Sankey Declaration is frivolous at best and misleading at worst. Plaintiffs counsel himself
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even lends additional support to Mr. Sankeys description of how he obtained these materials in 2009 when he describes in great detail that these documents are not currently available over the internet. (See Berg Decl. 40-41.) Only Mr. Sankeys description of how he obtained these materials, and when he obtained these materials, makes any sense. Plaintiffs motion to exclude these documents or Mr. Sankeys description of them in his declaration should be rejected. B. The Objections to the Simmons Declaration and Exhibits Are Meritless.
Plaintiffs level essentially three objections to the Simmons Declaration and the Exhibits thereto. They argue that the Exhibits and portions of the Declaration and have not been authenticated, are hearsay, and are irrelevant. Each of these objections is meritless. 1. The Simmons Declaration and Exhibits Have Been Authenticated.
Plaintiffs argue that the Court should not consider the declarations and documents because they have not been authenticated and therefore are not admissible. This is nonsense. At the summary judgment stage, evidence need not be presented in admissible form. Instead, the requirement is only that the party submitting the evidence show that it will be possible to put the information, the substance or content of the evidence, into an admissible form. 11-56 Moores Federal Practice Civil 56.91; Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) ([a]t the summary judgment stage, we do not focus on the admissibility of the evidences form. We instead focus on the admissibility of its contents.); Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) ([t]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil
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Procedure 56.); Hughes v. United States, 953 F.2d 531, 543 (9th Cir. 1992) (litigation advisers affidavit may be considered on summary judgment despite hearsay and best evidence rule objections; the facts underlying the affidavit are of the type that would be admissible as evidence even though the affidavit itself might not be admissible). Here, there can be no doubt that it would be possible to offer the Simmons Declaration and Exhibits in an admissible form. As shown below, the Simmons Declaration already provides information sufficient to authenticate its own contents and its Exhibits. Even if it did not, however, both Simmons and Policastro have made clear that they could and would testify competently to these facts if called as a witness at trial. (Simmons Decl. 1; Policastro Decl. 1.) Accordingly, the LexisNexis Defendants could correct any alleged deficiencies by calling Simmons or another person as a witness at trial to offer additional testimonial evidence to authenticate the Simmons Declaration and Exhibits. For example, the Simmons Declaration is already sufficient to authenticate its own contents and the attached Exhibits. Evidence may be authenticated by testimony of a witness with personal knowledge. Federal Rule of Evidence 901(b)(1); 5-901 Weinsteins Federal Evidence 901.03. As an employee who is intimately familiar with the LexisNexis business practices and records, Ms. Simmons is qualified to attest to the existence of these business records. Here, as discussed above, the Simmons Declaration states that Simmons has personal knowledge of the facts stated below. (Simmons Decl. 1.) Simmons further explains the basis for personal knowledge by averring that she has been employed by LexisNexis Data Management Inc., a company formerly known as Seisint Inc. (LNRDMI) for thirteen years, first as Accurint Product Manager and then as Vice President of Product Development. (Id.) She gives background information on LNRDMI, the Accurint product line, and LNRDMIs agreements with certain third-party information providers (resellers) under which resellers could run
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searches in Accurint databases. (Id.) This information is sufficient to lay a foundation, by means of personal knowledge, as to the contested portions of her declaration. Further, this information is sufficient to authenticate each of the three Exhibits attached to the Simmons Declaration. As an employee of LNRDMI who is intimately familiar with its practices and records and with the Accurint product line specifically, Simmons is qualified to authenticate contracts LNRDMI entered into with resellers and others, as well as reseller contracts that relate directly to the Accurint product line. 2. The Simmons Declaration and Exhibits Are Not Hearsay.
Second, Plaintiffs assert that the Exhibits to the Simmons Declaration and portions of the Declaration itself should not be considered because they are hearsay. This objection is also meritless. As discussed above, on a motion for summary judgment, a party need only show that it will be possible to put the information, the substance or content of the evidence, into an admissible form. Here, the challenged contents of the Simmons Declaration could easily be offered in admissible form because Simmons is available to testify at trial. (Simmons Decl. 1.) Nor do hearsay concerns preclude this Court from considering the Exhibits to the Simmons Declaration. As the Ninth Circuit has made clear, out-of-court statements that are offered as evidence of legally operative verbal conduct are not hearsay. They are considered verbal acts. United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004). Here, all three exhibits are contracts offered not for the truth of the matters asserted therein, but rather as evidence of verbal acts, showing that the parties to those contracts entered into legally operative agreements with terms relevant to Plaintiffs claims here. Stuart v. UNUM Life Ins. Co. of Am., 217 F.3d 1145, 1154 (9th Cir. 2000) (finding that a written contract constitutes a verbal act that is excluded from the definition of hearsay and is admissible evidence because it is a legally operative document that defines the rights and liabilities of the
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parties).3 Further, even if the three Exhibits were not verbal acts, they would be admissible as exceptions to the rule against hearsay because they are business records under Federal Rule of Evidence 803(6). See United States v. Childs, 5 F.3d 1328, 1332-33 (9th Cir. 1993) (affirming admission of an application for a license plate maintained by DMV, and holding that exhibits can be admitted as business records of an entity, even when that entity was not the maker of those records, so long as the other requirements of Rule 803(6) are met and the circumstances indicate the records are trustworthy). 3. The Simmons Declaration is not irrelevant.
Finally, Plaintiffs argue that portions of the Simmons Declaration are irrelevant to the Plaintiffs claims and therefore inadmissible under Federal Rule of Evidence 402. The portions of the Declaration in question describe LNRDMIs practice to make clear that Accurint reports were not consumer reports within the meaning of the Fair Credit Reporting Act (FCRA). (Simmons Decl. 11, 12, 13.) Such information is relevant as it provides background on the structure of the LexisNexis Defendants, which is necessary to contradict Plaintiffs allegations that the Accurint searches or reports are consumer reports within the meaning of the FCRA because other LexisNexis Defendants sell reports that actually are consumer reports. Plaintiffs do not contradict this assertion, nor can they. C. The Objections to the Policastro Declaration Are Meritless.
Plaintiffs object to paragraph 3 of the Policastro Declaration, in which Policastro explains that LNRDMIs records contain information allowing her to determine which searches and reports were purchased by The Sankey Firm, including searches that were initiated through resellers. Plaintiffs assert that this The fact that Exhibit B is an unsigned contract is irrelevant. It still constitutes a verbal act, offered not for the truth of the matters asserted therein, but rather to show LNRDMIs legally operative conduct in proposing the contract terms.
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paragraph is misleading and confusing and therefore causes unfair prejudice. Plaintiffs fail to explain exactly how this paragraph is misleading or confusing, although they seem to suggest that it conflicts with paragraph 5 of the Policastro Declaration, in which Policastro explains that LNRDMI did not retain records of which items of data were returned in response to a search criteria, only the criteria used for the search or report. Paragraphs 3 and 5, however, are not in conflict and do not create confusion or unfair prejudice. Paragraph 3 of the Policastro Declaration simply makes clear that LNRDMIs records contain information on the searches run by Sankey and other customers of resellers, and indicate which type or types of reports were purchased, but do not contain the contents of any purchased reports. For example, to put it in terms more familiar to lawyers, if a particular lawyer ran a LexisNexis search for the term summary judgment, the records would reflect that fact, but would not include a duplicate copy of all of the cases returned as the search result. In other words, LNRDMIs records contain the questions asked by Sankey and others, but not the answers to those questions. There is nothing confusing or misleading about this description and no reason to exclude it as prejudicial under Federal Rule of Evidence 403. CONCLUSION For each of the reasons set forth above, the LexisNexis Defendants respectfully request that the Court deny Plaintiffs Request to Strike.
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Dated: May 7, 2012
JAMES F. McCABE MORRISON & FOERSTER LLP By: /s James F. McCabe James F. McCabe Attorneys for Reed Elsevier Inc., LexisNexis Risk and Information Analytics Group Inc., LexisNexis, Inc., LexisNexis Risk Solutions, Inc., LexisNexis ChoicePoint, Inc., LexisNexis Seisint, Inc., d/b/a Accurint, and LexisNexis Group Inc.
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Preclusion Is Not Mandatory Where Less Severe Remedies Would Suffice.

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Dated: May 7, 2012

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