case3:13-cv-01465-si document30-1 filed10/01/13 page1 of 38 · 30/01/2014 · -a divisive effort...

Case3:13-cv-01465-SI Document30-1 Filed10/01/13 Page1 of 38

DECLARATION OF RICK A. CIGEL

2 I, Rick Cigel, declare and state as follows:

3 1. I am an attorney at law duly licensed to practice before all the courts the of

4 California. I have personal knowledge of the matters set forth below, and called upon to do so,

5 I could and would testify competently thereto.

6 2. I am the principal at The Cigel Law Group, P.C., counsel for Defendant Doe 1 and

7 Michael J. Schroeder. Doe 1 is an unnamed and unserved defendant and files this motion

8 or her fictitious name in order to preserve anonymity. No reference to Doe 1 in this

9 declaration or in the opposition brief is meant to convey any information about the gender or Doe

1 0 1 or the number of individuals involved.

11 3. Mr. Schroeder is a resident of Orange County, California and is an attorney

1 2 licensed to practice law in California.

I 3 Attached hereto as Exhibit "A" is a true and correct copy of the inaugural

14 written about Charles Munger, Jr. on the website "The Munger Games", which is located on the

15 internet at www.mungergames.net. The article explains the purpose ofthe website as follows:

16 "Welcome to The Munger Garnes, the purpose of which is to inform, educat[e] and

1 7 · entertain on the subject of the one-man maelstrom of money intent on re-making

1 8 ·· California Republicanism in his bow-tied image.

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Munger burst into California Republican politics a few short

a trail of political debris in his wake:

and left

-Prop. 14, which created the top-two primary system that pits Republicans """''·H ... ,,.

Republicans in the general election.

-Prop. 20, which gave us the Citizens Redistricting Commission that was expertly

gamed by the Democrats to the detriment of Republicans.

-A divisive effort to reduce the CRP platform to mush.

-Enormous expenditures to defeat the already dwindling number GOP Assembly

incumbents.

- 1 -DECLARATION OF RICK A. Case No. 13-cv-01465 Sl


That's just the top-line scan of the damage Munger has and will inflict. are

2 weirder tales still to tell.

3 Who is Charles Munger, Jr.? What makes him tick? What has he done? What will

4 he do?"

5 5. The Munger Garnes is a wholly noncommercial blog that posts articles and

commentary about California politics. Its articles and commentary are not only viewed directly

by internet viewers, but are either reposted or commented on by multiple other websites that

B exclusively with politics and current events that affect California.

9 6. The Munger Games website has a graphic above every article that will not print

1 0 through a nom1al computer print command. The graphic says "THE MUNGER GAMES" in

"I 1 large and bold type, and has the motto "WASTING HIS PATRIMONY" in quotation

1 2 immediately below. To the left of the text is an image of a bow tie made out a hundred dollar

1 3 bill, which is a satirical reference to the fact that Munger frequently wears bow ties. ln order to

14 show the graphic, we printed a "screen shot" of the website and attach it hereto as Exhibit "B".

15 7. The website contains reports on politician's campaign

1 6 finances. On September 20, 201 I conducted a search of campaign finances plaintiff

1 7 Harmeet K. Dhillon ("Dhillon"). Attached hereto as Exhibit "C" is a true and correct copy the

1 8 results of that search. As shown on the second page, her top contributor was Charles Thomas

19 Munger, Jr., who donated $7,500.00.

20 8. Attached hereto as Exhibit "D" is a true and correct copy ofthe February 1 2013

21 blog post from The Munger Garnes, containing the article entitled ''Meet Harmeet". On

22 website, the article has the same logo shown in Exhibit "B". The original posting of the article

23 contained the headshot photograph of Dhillon directly below the headline "Meet Harmeet".

photograph has been removed. In place of the photograph, the article now

25 "Harmeet Dhillon" and "Harmeet Dhillon".

the words

26 9. In the "Meet Hanneet" article, the anonymous author addresses detail the social

2 7 and political positions that Dhillon supported through her ACLU membership. The article on

- 2 -DECLARATION OF RICK A. CIGEL, Case No. 13-cv-01465 SI


to observe that Munger was supporting Dhillon as "a leader and spokesperson for the

Republican Party" and stressed that Dhillon's liberal values were not consistent with the values of

the Republican Party. As the author wrote:

4 "These are the values to which Harmeet Dhillon pledged her commitment in

5 this is the individual Charles Munger, Jr. wants to elect as a leader and spokesperson for

6 the California Republican Party.

7 The question California Republican activists, leaders and elected officials to

8 themselves is whether these are the values of Republican Party? How much will we

9 compromise ourselves by following the prescriptions of Dr. Munger in the vain hope

10 'broadening our appeal?"'

11 10. Attached hereto as Exhibit "E" is a true and correct copy of the subpoena

1 2 April 11, 201 issued from the Northern District

1 3 Network, LLC.

California and served on New Dream

14 11. Attached hereto as Exhibit "F" is a true and correct copy of the "Order Denying

I 5 Administrative Motion For Order Compelling Compliance With Subpoena", issued by the

16 Northern District of California on July 21,2013 as Doc. 19.

12. In response to the court's order denying administrative motion, Dhillon had a

subpoena issued on July 2013 in the Central District of California to New Dream Network,

LLC, the webhost of The Munger Games. The subpoena attached the Amended Order Granting

Plaintiff's Parte Application for Leave to Take Limited Discovery Prior To A Rule 26(f)

Conference from the Northern District of California dated April 9, 2013 (Doc. 8). A true and

correct copy the subpoena is attached hereto as Exhibit "G".

13. Attached hereto as Exhibit "H" is a true and correct copy of a motion I in the

Central District of California to quash the subpoena directed to New Dream Network, LLC. The

25 motion is set for hearing on October 22, 2013.

26

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- 3 -DECLARATION OF RICK A. CIGEL, Case No. 13-cv-01465 Sl


14. Attached hereto as Exhibit "I" is a true and correct copy of an article the

2 Research Center for the People & the Press. The title of the article is "Internet on

3 Television as Public's Main News Source."

4 15. Attached hereto as Exhibit "J" is a true and correct copy of an article that posted on

5 the Flash Report website (www.flashreport.org) on September 29, 2013. The of the article is

6 "Whether Critical of King George, or Charles Munger, Jr., Anonymous Speech should Be

Protected."

I declare under penalty of perjury under the laws of the State of California that

9 foregoing is true correct and that this declaration was executed on September 30, 2013 at

1 0 Angeles, California.

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Rick A. Cigel

Case No. 13-cv-01465 SI


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EXHIBIT A ..


Welcome To The Munger Games! 1 The Munh James http://www.mungergames.net/?p=7

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Welcome To The Munger Games!

Charles Munger, Jr.

How much damage can one man do to a political party?

In the case of Charles Munger, Jr. and the California Republican

Party, the answer is: a lot

Welcome to The Munger Games, the purpose of which is to in

form, education and entertain on the subject of the one-man

maelstrom of money intent on re-making California Republican

ism in his bow-tied image.

Munger burst into California Republican politics a few short

years ago. and the has left a trail of political debris in his wake:

• Prop. 14, which created the top-two primary system that pits Republicans against Republi

cans in the general election.

• Prop. 20, which gave us the Citizens Redistricting Commission that was expertly gamed by

the Democrats to the detriment of Republicans.

• A divisive effort to reduce the CRP platform to mush.

• Enormous expenditures to defeat the already dwindling number of GOP Assembly incum

bents.

That's just the top-line scan of the damage Munger has and will inflict. There are weirder tales still to

tell.

Who is Charles Munger,jr.?What makes him tick? What has he done? What will he do?

Share this:

•

9i:!()/2013 9:57AM

EXHIBIT A Page 1


Welcome To The Munger Games! i l'he Mun~;, james http://www.mungergames.net/?P"'" 7

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This entry was posted in California Republican Party. Charles Munger. Intra-party mayhem. Redistrict

ing, Top-Two Primary on january 30, 2013 [http://\I\IWW.mungergames.net!?p=7].

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THE MUNGER GAMES 11WASTING HIS PATRIMONY*'

Welcome To The Munger Gamest

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HOI'I much damage can one man do to a political party?

In the cast of Charles Mur\sl!'r. Jr. and the California

Re!)Ullll<an Party. lhe allS\Ner Is: a lot

Wel(Offie!O Tht Ml.tnpr ~$,lilt purpcst of Which IS

to Inform.~ and entertain on lilt '$UbJetl of lilt one-man matfSirorn of money lnll!nt on r.,milklng

California llllfll.lbil!anlSm In his bow-~ Image.

Munger burst Into Cafifornia Republkan pOlitics a lew

Short yeMs 1180. and lilt has left ll trail of pOiiti<al debt!• In

• Prop. 14, Whit:h nl'ated thl' top-two primary system that pits Republl<ans i!&oinst

Rtpubli<anS in the general eltCiion.

• Prop. 20. Which gavt us the Citizens R!ld1Wk1ill8 Commission !hat was expertly gamed by

thl' Democrats to th~ detrtmem or Republicans.

• 11 divisive effort to reduce thl' CRP piatform to m\JSh.

• Enornwus elqli!O<Iitvres to defeat the already dwindling number of GOP Assemoly

;nturnbents.

l'hars J\.'St the top-line stan of til<' daffii!&t Munger has tnd wllllofl!ct. Thtre are weirder tales

still to ttl!.

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Hanneet lion's Campaign Finanees - Proj~. vote .smart

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$31,708.00

$11,151.00

$1,067.00

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$4,571.00

$33.403.00

$577.00

$0.00

$390.00

ltn:>IJtuuun~ and Companies $4,986.00

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$43,926.00

http://votesmart.org/cru .... JateJ~o.dffipaign-finance/ I 04348/hanneet-dhillon

EXHIBIT C Pag~0lf013 to:IO AM


Harmeet illoo's Campaign Finances - Proje ... vOle Smart http://votesmart.org!canu .. mtetcampaign-finance/104348/hanneet-dhillon

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Top Industries

$22,304.00 Uncoded

One Common

Ground,

Philipsburg,

emment Agencies/Education/Other $7,500.00 Education

$22,304.00 MT 59858

$7,500.00 Hotline:

munications & Electronics

p Contributors

UNGER JR. CHARLES THOMAS

lllON, HARMEET

INGH, TEJINDER

HANGARAJ,PREETHA

HLUWAUA, SA'TWANT

$4.701.00 lawyers & lobbyists

$4,571.00 Candidate Self-finance

$2,500.00 Insurance

$1,184.00 Real Estate

$4,701.00

$4,571.00

$1,250.00

$1,250.00

$577.00 Conservative Policy Organization $1,184.00

$390.00 Unitemized Contributions $577.00

$200.00 Non-Contribution $390.00

Computer Equipment & Services $200.00

888-Vote-Smart (888-868-3762)

All content 0 1992 - 2013 Project Vote Smart .!.!!l!!U otherwise attributed Ucopyrlghtl - Privacy Policy

$7,500.00 flaboytlpdyacyl-legislative demographic data

$4,571.00 provided by Aristotle International. Inc.

$J,900.00 fhttp:Jfwww.aristotie.comD Mobile Version

C?fl@vour=mobile&utm sourne=yote&mart& $2,500.00 . .

utm med!WD=mobile· $2,000.00 link&utm camoai9n=flavourswitchl $1,250.00

$1,000.00

$1,000.00

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ANG. KULMEET SiNGH $1,000.00

NCOLN CLUB OF NORTHERN CALIFORNIA $1,000.00

I ON SYSTEMS INC $1,000.00

HERGILL LAW FIRM $501.00

W OFFICES OF SHAlLA & CHO LLC $500.00

BIASON, JENNIFER

HOQUIST, DEBORA

REE, DANIEL

ALUJA MEDICAL ASSOC PA

$500.00

$500.00

$500.00

$500.00

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$500.00

$500.00

$500.00

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EXHIBIT C Pafj~P~013 1010 AM


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HARAKHANIAN, ANDRE

AllA, AMARDEEP

OSSETTI, liSA

NOHU, SAWTANTER

VAN!, MUKESH

INGH, HARJINOER

WA, PRABHJOT

ILLON. SAOEV

ABERWAl, OALJIT S

UNOY, OARSHAN S

AVVHNEY, GURJIT

EKHI, KANWAl

AlEY, SHANE

AGNON, CHARlES

HASIN, BAlJEET

AliFORNIA TRAILBLAZERS

HARA, RITA

lllON. MANPREET

TOREllA, JOHN

SRA SOlUTIONS & TECHNOLOGIES

lHI, MEETA

GHANI, MIHIR

llEY, GREGORY

lHA, GURMUKH

UlERIA, SHER StNGH

YER, THOMAS

http://votesmart.org/cat.~ . .,ate,..-..~npaign-tinance/104348/hatmeel-dhillon

$500.00

$300.00

$300.00

$250.00

$250.00

$250.00

$250.00

$250.00

$250.00

$250.00

$250.00

$250.00

$250.00

$250.00

$250.00

$250.00 .. $250.00

$250.00

$200.00

$200.00

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$184.00

$150.00

$150.00

$150.00

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$101.00

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Hanneet ilion's Campaign Finances- Proj\. .. Vote ::)mart

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LDER. DEBORAH

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TEVES APPLIANCE REPAfR

UKSICH, ALEXANDRA

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HUTANI. KAWAlJIT

WERLY HEMATOLOGY ONCOLOGY

lNGH, OARSHAN

THOOR, SWAPNA

HAOHA. HARPREET

ASKAR. AlOKA

INGH, NAGINDER

EDHI, HARMOHAN

HOSA. GURJANT

http://votesmart.org/can-.udate;c.;ampaign-finance/104348/hanneet-dhillon

$100.00

$100.00

$100.00

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EXHIBIT c Pa~eO.if013 to: to AM


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Meet Harm t I The Munger Games http:/ /www.mungergames.nett1p=4l

l of3

Meet Harmeet

Harmeet Dhillon

Harmeet Dhillon

We have asked the question. "Who is Charles Munger, Jr.?"

Although we haven't finished answering it we also need to ask

ourselves, "What does he want?"

To begin with, he wants to control and re-shape the California Republican Party, and the way he is go

ing about it right now is by supporting Harmeet Dht!lon for CRP Vice Chairman. Dhillon is the chair of

the San Francisco Republican

It will take more than one blog post to paint a complete picture of Harmeet Dhillon, but we can start

with her deep, active involvement with the Ameri-can Civil Uberties Union.

Yes, that ACLU.

In late 2002. Dhillon was running for the Board of Directors of the ACLU of Northern California. Here is

her candidate statement, as it appeared in the November-December 2002 edltton of ?.CW News":

"I om deeply honored to have been nominated as o candidate for the Board of Directors. I am on attorney in

Polo Alto, where I practice complex commercial litigation. Both my career os a lawyer and my former career

os a journalist have impressed upon me the crucial importance of the First Amendment to our democracy.

Throughout my legal career I have performed pro bono legal services for victims of human rights and civil

rights violations, domestic abuse and employment Discrimination, and have been recognized for my work on

behalf of the Lawyers' Committee for Human Rights and the Network for Women's Services. 1 om committed

to the values championed by the ACLU-NC."

The same newsletter gives some alarming examples of the ACLU values to which Dhillon vows she is

committed. The italicized sections are taken directly from the ACU newsletter.

Removing "Under God" from the Pledge of Allegiance

In striking down the McCarthy-era law that: rewrote the Pledge of Allegiance to insert the words

"under God," Newdow v. United States Congress, the Ninth Circuit breathed life into the Pledge's

stirring ideal of a country 'With liberty and justice for all." The decision secured liberty for children of

9/20/20 I 3 I 0: 18 /\!VI

EXHIBIT D Page 1


Meet Hann • The Munger Games http://www .mungergames.netl?P""_41

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minority faiths who have quietly been denied religious freedom for nearly 50 years, when pressured

in public school to pledge allegiance to a God they do not worship.

Opposition to Anti-Pornography Filters on Public library Computers

'J4s the Children's Internet Protection Aa (CIPA) went into effect this September, activists and students around

the nation criticized the new law as "closing the door to knowledge." CIPA requires public schools and li

-braries to block Internet access to materials deemed "harmful to minors" in order to receive certain federal funds.

~fundamental goal of the Internet is to open the door to knowledge, but internet blocking software slams this door," ACLU-NC staff attorney Ann Brick told reporters.

Support of Drivers licenses For Ufepllmmigrants ... Without Criminal Background Checks)

In an election year; Gov. DG!Iis needs the support of immigrant communities. Nevertheless. the

Governor vetoed AB 60 (Cedilla-D). a crucial bill that would have allowed immigrants in the process of applying for legal status to receive a driver's license. A companion bill 58 804 (Polanco-

D), which included provisions requiring that applicants give a digital thumbprint, undergo a criminal

background check, and submit proof of employment in California, was also returned unsigned.

The ACLU and immigrants' rights groups strongly opposed the background check provisions

demanded by Gov. DG!Iis ond included in 58804. because they are unrelated to a person's ability to drive, do

not address public safety concerns, and discriminate against immigrants .

Educating School Children on LGBT Issues

Focusing on schools, [Matt] Coles [director of the notional ACW Lesbian & Gay Rights and AIDS Project] explained, is important for two reasons: LGBT students are extremely vulnerable, and we can achieve great

progress by educating youth about LGBT rights. He explained that school officials know they cannot d;scrimi

nate openly against lesbian and gay student groups, so they are nOMt setting up bureaucratic obstacles to the recognition of such clubs. The Projects are actively helping courageous students across the country deal with these obstacles.

Redefining Family

In the past, Coles soid, opponents of gay and lesbian equality hove used the issue of 'family" to

attack gay people. More recently. however, public opinion is changing. That change is due in part to the ACLU's public education campaign based on a Rorida case Jn which the Projects are representing two gay

foster parents fighting to keep their family of seven intact in spite of efforts by the state to get a heterosexual family to adopt the children. In part because the case involves fiN-positive children and attracted the

celebrity support of Rosie O'Donnell, it has dramatically changed Americans' perceptions of lesbian and gay men and their families.

9/20/2013 10: I& AM

EXHIBIT D Page 2


Meet Harm t I The Munger Games http://www.mungergames.net/"~:=41

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The Project's work, like the ACLU's efforts in general, is grounded in the belief that government must fol

low the rule of law, said Coles. He expressed dismay about how the federal government is flouting the

rule of law, whether in its pursuit of the 'war on terrorism," military action in Iraq, or the denial of lesbian and gay equality.

"Under God" in the Pledge of Allegiance oppresses children? Giving drivers licenses to people here

illegal without even a background check to exclude criminal aliens? Opposing anti-porn filters in li

braries? Injecting LGBT advocacy groups' talking points into public schools?

And believe it or not, there's more. We'll bring that to you tomorrow.

These are the values to which Harmeet Dhillon pledged her commitment in 2002. And this is the indi

vidual Charles Munger, Jr. wants to elect as a leader and spokesperson for the California Republican

Party.

The question California Republican activists, leaders and elected officials need to ask themselves is

whether these are the values of Republican Party? How much will we compromise ourselves by follow

ing the prescriptions of Dr. Munger in the vain hope of "broadening our appeal'?

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This entry was posted in California Republican Party, Charles Munger, Harmeet Dhillon. Principles on

February 12.2013 {http://www.mungergames.netl?p=41J.

2 thoughts on "Meet Harmeet"

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9/20/2013 10:18 AM

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Case3:13..cv-01465-SI DocumenU9 Filed07/21/13 Pagel of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11 HARMEET DHILLON, No. C 13-1465 Sl

12

13 v.

14 DOES I -10.

15

Plaintiff,

Defendant.

-------------------------------------~' 16

ORDER DENYING ADMINISTRATIVE MOTION FOR ORDER COMPELLING COMPLIANCE WITH SUBPOENA

17 Plaintiff Harmeet Dhillon flied an administration motion for an order compelling compliance

18 with a Rule 45 subpoena. The subpoena was served on April l t, 2013, on a third party, New Dream

19 Network. LLC, dba DreamHost ("New Dream Network"), and seeks the identities of the Doe defendants

20 named in the complaint. The documents attached to plaintiff's motion show that New Dream Network

2 J was served with the subpoena at 818 West Seventh Street, 2nd Floor, Los Angeles, CA 90017, and that

22 the subpoena directs New Dream Network to produce documents to plaintiff's counsel at 177 Post St.,

23 Suite 700. San Francisco. CA 94108. Plaintiff states that New Dream Network did not object to the

24 subpoena and also did not produce any documents in response to the subpoena by the June 21, 20 13

25 deadline. Plaintiff seeks an order compelling New Dream Network to comply with the subpoena. ·,.

26 Rule 45 directs that "a subpoena for production or inspection shall issue from the court for the

27 district in which the production or inspection is to be made." Fed. R. Civ. P. 45(a)(2). Rule 45 also

28 imposes territorial limits upon the area in which a subpoena may be served. directing inter alia. that "a

subpoena may be served at any place within the district of the court by which it is issued. or at any place

EXHIBIT F Page 1


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Case3:13-cv-01465-SI Document19 Fied0?/21113 Page2 of 2

without the district that is within 100 miles of the place of the deposition, hearing, trial, production. or

2 inspection specified in the subpoena .... " Fed. R. Civ. P. 45(b)(2). Here, the subpoena was served

3 outside the Northern District of California and it directs New Dream Network to produce documents

4 in San Francisco, which is more than t 00 miles of the address at which New Dream Network was

5 served. ·•[N]onparties cannot be required to produce documents at a location more than I 00 miles from

6 their home or business." Nieman v. Linkedln Corp., No. CV 12-80258 PSG, 2013 WL 685203, at *2

7 (N.D. Cal. Feb. 25, 2013); Miller v. Holzmann, 471 F. Supp. 2d 119, 121 (D.D.C. 2007) (jTJhe

8 limitation in Rule 45 unequivocally applies both to attending a deposition to testify and to being·

9 required to produce documents at a distance more than l 00 miles from one's home."); see also Wright

10 & Miller: federal Practice & Prgcedure § 2454, Service of a Subpoena (2013); Hon. William W.

II Schwm:er, Hon. A. Wallace Tashima & James M. Wagstaffe, federal Civil Procedure Before Trill §'

12 II :2250 (2013).

J 3 Accordingly, the subpoena is invalid and cannot be enforced by this Court. Plaintiff should seek

14 a subpoena from the Central District of California that directs production of documents in Los Angeles.

J 5 See id. at§§ J I :2262-11:2270. Plaintitrs administrative motion is DENIED. Docket No. 16.

16

J 7 IT IS SO ORDERED.

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Dated: July 21.2013 SUSAN JLLSTON UNITED STATES DISTRICT JUDGE

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EXHIBIT F Page 2

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AO llliB (Rev. 06109) Subpoooa to Produoo DoolllllC!lts, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT for the

Central District of California

Harmeet K. Dhillon Plaintiff

v. DOE 1, an unknown individual, et a!.

De fondant

) ) ) ) ) )

Civil Action No. 13-cv-01465-JCS

(If tile action is pending in another district, state where:

Northern District of California

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION Oil' PREMISES IN A CIVIL ACTION

To: New Dream Network, LLC, dba DreamHost, c/o CT Corporation System (C0168406), 818 West Seventh Street, Los Angeles, CA 90017

sf Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the material: Documents sufficient to identify the account information for the domain name "Mungergames.net,• hosted by

DreamHost, Including the names, addresses, telephone numbers, and e-mail addresses of the owner(s) of hte domain name "Mungergames.net." You are to comply with this subpoena pursuant to the terms set forth in the Amended Order attached hereto as Attachment A.

0 Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

The provisions of Fed. R.. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule 45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are attached.

Date: 07/22/2013

CLERK OF COURT OR

The name, address, e-mail, and telephone number of the attorney representing (name of party)

-------------------------,who issues or requests this subpoena, are: Harold~· Smif!1; Krist~ L. Shoqulst, Dhillon & Smith LLP, 177 Post Street, Suite 700, San Francisco, CA 94108; email [email protected]; Tel: 415-433-1700.

EXHIBIT G Page 1


Attachment A

EXHIBIT G Page 2

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Case3:13~cv~01465-JCS DocumentS Filed04/09/13 Pagel of 3

1 HAROLD P. SMITH, ESQ. (SBN: 126985)

[email protected] 2 KRISTA L. SHOQUIST, ESQ. (SBN: 264600)

3 [email protected] DHILLON & SMITH LLP

4 177 Post Street, Suite 700 5 San Francisco, California 94108

6 Telephone: (415) 433-1700 Facsimile: (415) 520-6593

7

8 Attorneys for Plaintiff Harmeet K Dhillon

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

13 San Francisco Division

14 HARMEET K. DHILLON, Case No. 13-01465-JCS

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Plaintiff,

v.

DOE 1, an unknown individual, et al.,

Defendants.

AMENDED1 [PR:OPOSBOJ ORDER GRANTING PLAINTIFFS EX PARTE APPLICATION FOR LEAVE TO TAKE LIMITED DISCOVERY PRIOR TO A RULE 26(f) CONFERENCE

1 Plaintiffs Ex Parte Application For Leave to Take Limited Discovery Prior to a Rule 23 26(f) Conference, filed April 2, 2013 (Doc. 2), sought leave to serve a subpoena on "New 24 Dream Network, LLC, on behalf of DreamHost." However, the original [Proposed}

Order submitted with that ex parte application (Doc. 2-1), and the subsequent Order 25 filed onApril3, 2013 (Doc. 6), contained a typographical error with respect to the name 26 of the subpoenaed entity, listing it as "DreamHost Network, LLC, on behalf of

27 DreamHost." Plaintiff thus respectfully requests that the Court remedy this error by granting this Amended [Proposed] Order, which is identical in substance to the Court's

28 Order of April 3rd, other than with respect to the name of the entity to be subpoenaed.

Amended [Proposed] Order 1 DHILLON & SMITH LLP

EXHIBIT G Page 3 ...


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Case3:13-cv-01465-JCS DocumentS Filed04/09/13 Page2 of 3

TI1e Court, having reviewed Plaintiff's Ex Parte Application for Leave to Take

Limited Discovery Prior to a Rule 26 Conference and the supporting documents

submitted therewith, and good cause appearing therefore, hereby grants Plaintiff's Ex

Parte Application and orders as follows:

1. IT IS HEREBY ORDERED that Plaintiff i.e; allowed to serve immediate

discovery on New Dream Network, LLC, on behalf of DreamHost, in order to obtain

the identity of the Doe Defendants listed in Plaintiff's Complaint by serving a Rule 45

subpoena that seeks information sufficient to iderttify each such Defendant, including

the account infonnation for the domain name "Mungergames.net/' hosted by

DreamHost, and the name, addresses, telephone numbers, and email addresses of each

such Defendant.

2. IT IS FUTHER ORDERED that Plaintiffs counsel shall issue subpoena(s}

in substantially the same form as the example attached as Exhibit 1 to Plaintiff's Ex Parte

Application for Leave to Take Limited Discovery Prior to a Rule 26 Conference, with

each subpoena including a copy of this Order.

3. IT IS FURTHER ORDERED that New Dream Network, LLC, will have 3

days from the date of service upon it to serve each entity or person whose information

is sought with a copy of the subpoena and a copy of this Order. New Dream Network,

LLC may serve the entities and persons using any reasonable means, including written

notioe sent to the entity's or person's last known address, transmitted either by first

class mail or overnight service.

4. IT IS FURTHER ORDERED that each entity and person and New Dream

Network, LLC, will have 30 days from the date of service upon him, her, or it to file any

motions in this court contesting the subpoena (including a motion to quash or modify

the subpoena).lf that 30-day period lapses without the entity contesting the subpoena,

Amended [Proposed] Order 2 DHILLON & SMITH LLP

EXHIBIT G Page 4

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Case3~13-cv-01465-JCS DocumentS Filed04/09/13 Page3 of 3

1 New Dream Network, LLC1 shall have 10 days to produce to Plaintiff the information

2 responsive to the subpoena with respect to that entity.

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5. IT IS FURTHER ORDERED that, because no appearance by a person at a

deposition is required by the subpoena, instead only production of documents, records

and the like is required, the witness and mileage fees required by Rule 45(b)(1} of the

Federal Rules of Civil Procedure do not apply and no such fees need be tendered.

6. IT IS FURTHER ORDERED that New Dream Network, LLC, shall not

asses.<> any charge to the Plaintiff in advance of providing the information requested in

the subpoena, and that if New Dream Network, LLC, elects to charge for the costs of

production, it shall provide a billing summary and cost reports that serve as a basis for

such billing summary and any costs claimed by such recipient.

7. IT IS FURTHER ORDERED that New Dream Network, LLC, shall

14 preserve all subpoenaed information pending its delivering such information to

15 Plaintiff or the final resolution of a timely filed and granted motion to quash the

16 subpoena with respect to such information.

17 8. IT IS FURTHER ORDERED that any information disclosed to Plaintiff in

18 response to a subpoena may be used by Plaintiff solely for the purpose of protecting its

19 rights under the Copyright Act, 17 U.S.C. § 101 et seq, and may not be disclosed to 20

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anyone other than the parties in this action and their counsel of record pending further

order of this Court.

IT IS SO ORDERED.

Date: _____ _. 2013

Amended [Proposed} Order 3 DHILLON & SMITH LLP

EXHIBIT G Page 5

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AO 88B (Rev. 06109) Subpoe!lll ro Produce Documents, Inrormation, or Objects or to Pennit Inspection of Premises in a Civil Actioo {Page 2)

Civil Action No. 13-cv..01465--JCS

PROOF OF SERVICE (This section should not be filed witlz tlze court unless required by Fed. R. Civ. P. 45.)

Tills subpoena for (name of individual and title, if any)

was received by me on (date} ---------

0 1 served the subpoena by delivering a copy to the named person as follows:

on (date) ; or ------------------------------------------- ----------0 I returned th.e subpoena unexecuted because:

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness fees for one day's attendance, and the mileage allowed by law, in the amount of

$

My fees are$ for travel and $ for services, for a total of$

I declare tmder penalty of perjury that this information is true.

Date: Server's signature

Printed name and Iitle

Additional inf01mation regarding attempted service, etc:

EXHIBIT G Page 6


AO 88B (Rev. 06109) Subpoena to Produce Documents, Information, or Objects or to Permit Inspet:tion of Premises in a Civil Actioll(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 1211/07)

(c) Protecting a Person Subjed to a Subpoena. (I) Avoiding Vndue Burden or Expense:; Sanctions. A party or

attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction- which may include lost earnings and reasonable attorney's fees -on a party or attomey who Jails to comply.

(2) Command to Produce Mnte:rials or Permit Inspection. (A) Appearance Nol Required A person commanded to produce

documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.

(B) Objections. A person commanded to produce documents or tangible things or to permit inspection ma:y serve on the par!y or attomey designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all ofthe materials or to inspecting the premises - or to producing electronically stored information In the form or forms requested. The objection must be served befOre the earlier of the time specified for compliance or 14 da:ys after the subpoena is served. If an objection is made, the following rules apply:

(i) At any time, on notice to the commanded person, the serving party may move the illlluing court for an order compelling production or inspection.

(U) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. (3) Quos/ling or Modifying a Subpoe11a.

(A) When Required On timely motion, the iMuing court must quash or modify a subpoena that:

(i) illils to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party's officer

to travel more than I 00 miles from where that person resides, is employed, or regularly transacts business in person- except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden. (B) When Permilled To protect a person subject to or affected by

a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial infurmation;

(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or

(iii} a person who is neither a party nor a party's officer to incur substantial expense to travel more than J 00 miles to attend tria!.

(C) Specifying Conditions as an Alternative. ln tbe ciromnstances described in Rule 45( c)(J)(B), the cour1 may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

(i) shows a ~~t~bstantial need for the testimony or material that cannot be otherwise met without undue hardship; and

(ii) en5Ul'es that the subpoenaed person will be reasonably compensated.

(d) Duties In Responding to a Subpoena. (1) Produci11g Docume~rts or ElectrOJrically Stored Information.

These procedures apply to producing documents or electronically stored information:

(A) Documenls. A person responding to a subpoena to produce documents must produce them es they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

(B) Form for Producing Electronicdlly Stored Information Not Specified If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible ElectrrmicaflyStored Information. The person responding need not provide discovery of electronically stored information ti'Om sources thet the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because ofoodue burden or cost. If that showing is made, the court may nonetheless order discovery from such soun:es if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may speci:ty conditions for the discovery.

(2) Claimillg Privilege or Protecti(m. (A) Information Withheld A person withholding subpoe:nae:d

infOrmation under a claim !hat it is privileged or subject to protection as trial-preparation material must:

(i) expressly malre the claim; and (ii) describe the nature of the withheld documents,

communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) lfiformation Produced If infom1ation produced in response to a

subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may party that received the information of the claim and the After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is must take reasonable steps to retrieve the information ifthe party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

(e) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's fuilure to obey must be excused ifthe subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).

EXHIBIT G Page 7

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EXHIBIT H


1 Rick A. Cigel, Esq. (SBN 1 05424) . THE CIGEL LAW GROUP, P.C.

1 0866 Wilshire Blvd., Suite 400 Los Angeles, California 90024 Tel: (424) 901-8513

i·

Fax: (424)901-8514

Attorneys for Defendant DOE 1

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

HARMEET K. DHILLON, an individual,

Plaintiff, vs.

'-·F c v 1 3 - 0 7 0 0 3 - 1 ~1'd1Mt_) NOTICE OF MOTION AND MOTION . BY DEFENDANT DOE 1 TO OUASH SUBPOENA ISSUED IN CENiRAL DISTRICT OF CALIFORNIA TO NEW DREAM NETWORK, LLC

, . DOE I, an unknown individual, and DOES 2 through I 0,

fConcurrendy filed with Declaration of Rick A. Cigel]

Defendants. (Action pending in the Northern District of California: Case No.l3-cv-O 1465-JCS) ~~ . tC )..l- ).L i.'"!,

(\ '-"'. \..· ,.- ~· •t;L<..- \ (_

TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Defendant OOE 1, an anonymous and

unserved party, hereby moves pursuant to F.R.C.P. 45(c) to quash a subpoena served

on non-party New Dream Network, LLC. The subpoena was issued in the Central

District of California on July 22,2013 regarding an action that is pending in the

Northern District of California. Doe l files this motion under the fictitious name

because his or her anonymity is critical to the political blog that is the subject of this

lawsuit.

This Motion is based upon this Notice of Motion and Motion to Quash, the

accompanying Memorandum of Points and Authorities, the Declaration of Rick A.

. 1 .

DEffNDANT DOE 1 's MOTION TO QUASH SUBPOENA

EXHIBIT H Page 1


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Cigel. the Proposed Order, all pleadings and papers on file in this action, and upon

such other matters as may be presented to the Court at the time of the hearing.

Dated: September 20, 20 I 3 THE CIGEL LAW GROUP, P.C.

A (A By: -~LA_ 0 . ~-<

Rick A. Cigel •. Attorneys For Defendant DOEl

2 DEFENDANT DOE 1 's MOTION TO QUASH SUBPOFNA

EXHIBIT H Page 2


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TABLE OF CONTENTS

1. INTRODUCTION AND FACTUAL BACKGROUND ......................................... 1

,I II. MEET AND CONFER REQUIREMENTS HAVE BEEN MET ............................ 4! ,)

6

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B

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HI. DOE 1 HAS STANDING TO BRING THIS MOTION .......................................... 5 ;

IV. THIS COURT SHOULD QUASH A SUBPOENA THAT REQUIRES DISCLOSURE OF PROTECTED INFORMATION .............................................. 5 .

V. THE SPEECH AND IDENTITY OF DOE 1 ARE PROTECTED BY THE FIRST AMENDMENT .............................................................................................. 6

VI. DOE l 'S FIRST AMENDMENT RIGHTS OUTWEIGH DHILLON'S PURPORTED NEED FOR DISCLOSURE ............................................................. 8

VII. DHILLON FAILED TO MAKE A SUFFICIENT SHOWING OF INFRINGEMENT IN LIGHT OF THE "FAIR USE" DOCTRINE ................... 1

A. PURPOSE AND CHARACTER OF THE USE .............................................. 17

B. NATURE OF THE COPYRIGHTED WORK ................................................. 20

C. AMOUNT AND SUBSTANTIALITY OF PORTION USED ....................... 21

1 <~ D. EFFECT OF THE USE UPON THE POTENTIAL MARKET FOR OR VALUE OF THE COPYRIGHTED WORK ................................................... 21

~ 1 VIII. DOE 1 WOULD SUFFER GREAT HARM IF HIS IDENTITY WERE DISCLOSED ....................................................................................................... .

22

- i -DEFENDANT DOE l's MOTION TO QUASH SUBPOENA

EXHIBIT H Page 3


• '•

TARlE Of AUTHORITIES

2 C'::~s.f>.s.

J Arista Records. LLC v. Doe 3, 604 F.Jd 110 (2d Cir. 2010) ............................ 8, I 13 4

Art of Living Found. v. Does 1-10,2011 WL 5444622 (N.D. CaL 2011) .......... passim

Ascend Healthcare Corp. v. Wells, 2013 WL 1010589 (E.D.N.C. 2013) ................... 19 6 b Bara an v. Time Warner Inc., 54 USPQ2d 1759 (S.D.N.Y. 2000) ............................. 19

Broadcort Capital Corp. v. Flagler Sec .. 149 F.R.D. 626 (D. Colo. 1993) .................... 5

H b Camp ell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ........................................ 17 9 Chaplinsky v. State ofNew Hampshire, 315 U.S. 568 (1942) .................................... 12

10 Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001) .................... 6, 7 11 Doe v. Cahill, 884 A.2d 451 (DeL2005) ............................................................ 9, 12, 23 12 Dr. Seuss Enters., L.P v. Penguin Books USA, Inc., 109 F. 3d 1394

(9th Cir. 1997) ............................................................................................................ 17 14 Eldred v. Ashcroft 537 U.S. 186 (2003) ..................................................................... 16 15 Feist Publications, Inc. v. Rural Telephone Service Co .. 499 U.S. 340 (1991) .......... .16 16 Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) ..................... 20 !7 Highfields Capital Management, L.P v. Doe. 385 F. Supp. 2d 969 18 (N.D. Cal. 2005) ................................................................................. .. 5, 8, 13, 15,22

llJ Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F .Supp. 1526

20 (C.D. Cal. 1985) ........................................................................................................ 18 21 In re Anonymous Online Speakers, 661 F.Jd 1168 (9m Cir. 2011) ............... 7, 9, 10, 11 ') )

... <- UMG Recordings, Inc. v. Augusto, 628 F .3d 117 5 (9th Cir.20 11) ............................. 16

.u Keep Thomson Governor Committee v. Citizens for Gallen Committee, 24 457 F.Supp. 957 (D.N.H. 1978) ................................................................................ 18 25 Kelly v. Arriba Soft Com., 336 F. 3d 811 (9th Cir. 2003) ....................... 17, 18, 20,21

)~

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- ii DEFENDANT DOE 1 's MOTION TO QUASH SUBPOENA

EXHIBIT H Page 4


Los Angeles Memorial Coliseum Comm'n v. Nat'l Football League,

2 89 F.R.D. 489 (C.D. Cal.1981) ................................................................................... 9

Mcintyre v. Ohio Elections Comm'n. 514 U.S. 334 (1995) .................... ..

-t Meyer v. Grant, 486 U.S. 414 (1988) ........................................................ .

s NAACP v. Alabama ex rei. Patterson. 357 U.S. 449,461 (1958) ................................. 9

6 New Era Publications Intern., ApS v. Carol Pub. Group, 904 F.2d 152

7 (2d Cir.1990) ............................................................................................................. 19

B Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Refonn

q 868 F.Supp.2d 962 (C.D. CaL 2012) ........................................................................ 18

10 Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) ............................................. 7

11 Reno v. ACLU, 521 U.S. 844 (1997) ............................................................................. 7

12 Rosemont Enterprises. Inc. v. Random House, Inc., 366 F.2d 303

13 (2d Cir. 1966) ............................................................................................................ 23

1-+ SaleHoo Grp., Ltd. v. ABC Co., 722 F. Supp. 2d 1210

1 s (W.D. Wash. 2010) ......................................................................................... 9, 13,

1 fJ Sedgwick Claims Mgmt. Servs., Inc. v. Delsman, 2009 WL 215 7 573

l 7 (N.D. CaL 2009) ........................................................................................................ 19

1 H SI03. Inc. v. Bodybuilding. com, LLC, 441 F. App'x 431 (9th Cir. 20 ll ) ................... 11

1 9 Snedigar v. Hoddersen, 1 14 Wash .2d 15 3 ( 1990) ......................................................... 9

20 Sony Music Entertainment Inc. v. Does 1-40, 326 F. Supp. 2d 556

21 (S.D.N.Y. 2004) ........................................................................................................ 13

)} Talley v. California, 362 U.S. 60 (1960) ........................................................................ 6

2) Zito v. Steeplechase Films. Inc. 267 F. Supp. 2d 1022 (N.D. Cal. 2003) ................... 16

24

25 Statutes

26 17 u.s.c. § 107 ............................................................................................................ 17

27 17 u.s.c. § 412 ............................................................................................................ 23

2H 17 lJ.S.C. § 50I(a) ........................................................................................................ l6

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1 F.R.C.P. 45(c) ................................................................................................................ s 2 F.R.C.P. 45(c)(3)(A)(iii) ........................................................................... .

J Fed. R. Civ. P. 45(c)(3)(A) ............................................................................................. 8

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# ·.

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION AND FACTUAL BACKGROUND

J Although this lawsuit is held out as an ordinary copyright infringement case, its

4 existence and narrow agenda are quite sinister. The suit has a single purpose: to

5 harass and bully anonymous political commentators who write critical articles on an

6 internet blog. PlaintiffHarmeet Dhillon ("Dhillon"), a San Francisco litigation

7 attorney, filed the suit so that she can serve subpoenas forcing these anonymous

8 bloggers to reveal their identities. The authors would then be subjected to financial

9 and political retaliation for their articles. Dhillon's actions are the quintessential

10 conduct that is banned by California's anti-SLAPP law.

11 These political bloggers are writing revealing articles about one of the richest

12 activists in California politics, Charles Munger, Jr.i Munger is the chairman of the

13 Santa Clara County Republican Party. Since January 1, 2012, Munger reportedly

14 donated more than $42,000,000 on his political projects.

1 5 Many people believe that Munger has used his enormous family fortune to do

16 great damage to California and to its politics. A political blog was created in January

17 2013 to educate readers about Munger's activities. The blog is called "The Munger

18 Games" 2 and is located on the internet at www.mungergames.net. The blog is a pure

19 exercise of First Amendment rights to write anonymously regarding Munger's

20 political tactics and the harm they are causing to California. Munger does not like

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... > l Munger is the son of Charles Munger, the billionaire Vice-Chairman of Warren 24 Buffet's company, Berkshire Hathaway Corporation. A true and correct copy of the

inaugural article written about Munger is attached to the concurrently-filed! Declaration of Rick A. Cigel ("Cigel Dec.") as Exhibits "A" and "B". l

2 This motion offers no information about the number or gender of bloggers or other I individuals involved in The Munger Games. The use of plural references and male I pronouns in this brief has no significance.

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1 the articles and wants them stopped. However, he cannot punish the authors until he

) learns their identities.

J In order to learn the bloggers' identity, this lawsuit was filed by his attorney,

4 Dhillon. DhiHon is the current Vice Chairperson of the California Republican Party

5 and a long time unsuccessful candidate for public office)

6 Mungergames.net ran an article about Dhillon on February 12, 2013 and posted

7 a publicity headshot photograph of her that was found on the internet from a previous

a political campaign. Cigel Ded, Exhibit "D". Dhillon and Munger formed the

9 strategy that she would sue the website in order to learn the identities of its bloggers.

1 0 However, Dhillon knew she had not registered a copyright on the photograph. In

11 order to heighten the indignation in her pleadings, she delayed her filing for a short

1 2 time while she rushed out to register the copyright. She then filed her copyright

1 3 lawsuit on April 2, 2013 in the United States District Court for the Northern District

14 of California. The suit was filed by Dhillon's own San Francisco law firm. Dhillon·&

15 Smith LLP. Cigel Decl, Exhibit "'E".

16 Despite all of Dhillon's indignation in her pleadings, she knows that she

1 7 has a de minims damage claim. Dhillon spent all the time and money to sue in

1 H federal court for actual damages of only $250.00.

19 Once the suit was filed, Dhillon and Munger quickly and aggressively revealed

20 the real reason for filing this lawsuit, which is to force the bloggers to reveal their

21 identity:

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l) Dhillon served a subpoena on New Dream Network, LLC, the

Southern California company that hosts the website for Mungergames.net. The I l

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l J In 2012, Munger was DhiiJon's single largest political contributor, donating $7,500! to her failed election for a state senate seat. Attached hereto as Exhibit "C" is a true); and correct copy of a report from the website www.votesmart.org. It shows Charles Thomas Munger, Jr. as the top contributor to Dhillon's 2012 campaign finances at/ $7,500.00.

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subpoena was issued on April 11, 2013 and commands the production of all

2 information identifying the Doe defendants. Cigel Decl., Exhibit "'F";

3 2) Dhillon filed an unsuccessful administrative motion to compel

4 compliance with that subpoena. The Court denied the motion because it had no

5 jurisdiction under F.R.C.P. 45 to enforce a subpoena against a Southern

6 California company. Cigel Decl., Exhibit "G";

7 3) On July 22,2013, Dhillon had the instant subpoena issued out of the

H Central District of California against New Dream Network, LLC. This is the

9 subpoena that is the subject of this motion. Cigel Decl., Exhibit "H";

10 4) On August 26, 2013, in her Northern District of California lawsuit,

11 Dhillon filed an Administrative Motion For Leave To Take Limited Discovery

12 On Google, Inc. Prior To A Rule 26(f) Conference. In that motion, she stated

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the urgent need to have the Court issue subpoenas against Google, Inc. and

Michael John Schroeder, a former chairman of the California Republican Party.

The subpoenas address not only the identity of the individuals at

Mungergames.net, but also all account information for two email addresses she

believes are associated with Mungergames.net. The proposed subpoena

commands production of "the name, address and phone number of the

owner( s) of these email addresses, and the IP address( es) from which the

user(s) created the accounts and signed in and signed out, with dates and

times." Cigel DecL, Exhibit "I"

5) Dhillon not only wants the identity of the persons associated with the

IP addresses, she wants to force Mr. Schroeder to produce "any communication

between Schroeder and any such individual concerning the "Meet Hanneet"

post, from February 12,2013 to present." Under the guise of innocently

needing to learn the identity of Doe defendants, Dhillon now wants to conduct

sweeping discovery regarding nine months of communications. Cigel DecL,

Exhibit "JH.

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Dhillon plainly is using this lawsuit as an artifice to conduct that discovery, and\

2 will deliver any such information to Munger for his use. Munger has already

3 demonstrated that he uses his enormous wealth to crush political commentators and

4 adversaries, as he is pursing nearly $250,000 in attorney's fees against a political

5 critic who has an annual salary of $6,000.

6 Dhillon's tactics are not proper and the subpoena should be quashed. Doe 1

7 has done nothing more than exercise his4 First Amendment right to free speech.

H Courts in the past several years have consistently held that internet speech is entitled

9 to the same protection as any other kind of speech. Political speech receives the

1 0 highest level of First Amendment protection regardless of the forum. Courts have

11 also recognized that a person has First Amendment rights to remain anonymous in

1 2 critical speech.

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Due to these stringent constitutional protections, courts have required that !

anyone seeking to compel disclosure of an anonymous political speaker's identity ~ must make a strong evidentiary showing of each and every element of a cause of I

f

action before disclosure will be ordered. Most recently, the Ninth Circuit has adopted I the "summary judgment" standard of proof in the context ofpolitical speech. \

I As is discussed below, Dhillon cannot meet this standard of proof in her j

copyright action, because Mungergames.net's use of her headshot photograph is "Fair I Use". Thus, Doe 1 respectfully requests that this Court quash this subpoena. 1

n. MEET AND coNFER REQUIREMENTS HAVE BEEN MET I I

This motion is made following the conference of counsel pursuant to Local!

Rule 7-3 which took place on July 18 and 19, 2013. Counsel for New Dreamj I

Network sent a letter to Dhillon's counsel stating that a motion to quash this subpoena

would be filed. Dhillon's counsel replied by letter that New Dream Network "has·

4 To further protect Doe 1 's anonymity, the pronoun "he" will be used without regard) for whether Doe I is male or female.

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r been properly served with a Court-approved subpoena and we expect and will insist •

on compliance." (CigeJ Decl., Exhs. "K" and "L").

Hl. DOE 1 HAS STANDING TO BRING THIS MOTION

F.R.C.P. 45(c) requires this Court to "protect all persons from undue burden

imposed by the use of the subpoena power.'' Jd., Advisory Committee Notes to 1991

H Amendments (emphasis added); Broadcort Capital Corp. v. Flagler Sec., 149 F.R.D .

626, 628 (D. Colo. 1993 ). A third party whose privacy interests are affected by the

subpoena thus has standing to assert the privilege by motion to quash. ld.

The First Amendment confers just such a privacy interest - a constitutional

right to speak anonymously. Therefore, an anonymous speaker who claims that

disclosure of his identity would violate his First Amendment right to anonymity has

standing to move to quash that discovery. Highfields Capital Management. L.P v. Doe, 385 F. Supp. 2d 969, 971 (N.D. CaL 2005) (granting anonymous speaker's

! ; motion to quash subpoena to ISP).

: , IV. THIS COURT SHOULD QUASH A SUBPOENA THAT REQUIRES

DISCLOSURE OF PROTECTED INFORMATION

F.R.C.P. 45(c)(3)(A)(iii) states that, on timely motion, the issuing court must

quash or modifY a subpoena that . . . requires disclosure of privileged or other

protected matter, if no exception or waiver applies." Doe l has brought this motion

within the time frame set forth in the Amended Order Granting Plaintiffs Ex Parte

Application, which required New Dream Network to serve the subpoena on

mungergames.net within 30 days, and allowed an additional 30 days for the filing of

any motion contesting the subpoena. (Cigel Ded., Exhibit "H", attached to

subpoena).

The subpoena is dated July 22, 2013. Although it is not dear when Dhillon

, , served New Dream Network, this motion is timely filed within 60 days of the

subpoena date .

In addition, this motion to quash raises important pnvacy considerations

. 5

DHENOA:\!T OOE 1 's MOTION TO QUASH SUBPOENA

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implicated by the First Amendment's protection of free speech, including the identity

of an anonymous speaker. Thus, this motion falls within the mandatory provisions of

the motion to quash statute.

V. THE SPEECH AND IDENTITY OF DOE I ARE PROTECTED BY THE

FIRST AMENDMENT

It is well established that the First Amendment protects the right to anonymous

speech. Mcintyre v. Ohio Elections Comm'n, 514 U.S. 334,342 (1995) ("An author's

decision to remain anonymous, like other decisions concerning omissions or additions

to the content of a publication, is an aspect of the freedom of speech protected by the

First Amendment."). The U.S. Supreme Court stressed that "Anonymous pamphlets,

leaflets, brochures and even books have played an important role in the progress of

mankind. Persecuted groups and sects from time to time throughout history have been

able to criticize oppressive practices and laws either anonymously or not at alL"

, , Talley v. California, 362 U.S. 60,64 (1960). "Anonymous speech is a great tradition

that is woven into the fabric of this nation's history." Doe v. 2ThcMart.com Inc., 140 •

F. Supp. 2d 1088, 1092 (W.D. Wash. 2001) (referring to the Federalist Papers).

ln the context of political speech, the Supreme Court has recognized that First

: r. Amendment protection is especially critical. ''Under our Constitution, anonymous

' pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of

advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. It

thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in

,. particular: to protect unpopular individuals from retaliation-and their ideas from

suppression-at the hand of an intolerant society." Mcintyre v. Ohio Elections

Comm'n, 514 U.S. 334,357 (I995)(citations omitted).

"'When speech touches on matters of public political life, such as debate over J

i, the qualifications of candidates, discussion of governmental or political affairs,

discussion of PQlitical campaigns, and advocacy of controversial J20ints of view, such

speech has been described as the "core" or "essence" of the First Amendment." Doe

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1 v. 2TheMart.com Inc., supra, 140 F. Supp. at I 092-93 (emphasis added), citing,

2 Mcintyre, supra, 514 U.S. at 346-47.

i The Ninth Circuit agrees that it is crucial to protect political speech. "Given

4 the importance of political speech in the history of this country. it is not surprising

5 that courts afford political speech the highest level of protection." In re Anonymous

6 Online Speakers, 661 F .3d ll68, 1173 (9th Cir. 20 l I), citing, Meyer v. Grant, 486

7 U.S. 414,422,425 (1988). The Court stressed that the First Amendment protection

a of"core political speech" is "at its zenith".

9 This fundamental right enjoys the same protections whether the context for

10 speech is a political leaflet or an Internet blog. Reno v. ACLU, 521 U.S. 844,870

11 (1997) (there is "no basis for qualifYing the level of First Amendment scrutiny that

12 shouJd be applied to" the Internet).

1 3 The First Amendment protects not only the content of the political speech, but

14 the identity of the speaker. "As with other forms of expression, the ability to speak

1 s anonymously on the Internet promotes the robust exchange of ideas and allows

16 individuals to express themselves freely without 'fear of economic or official

1 7 retaliation ... [or] concern about social ostracism.' "Anonymous Online S~akers,

18 supra, 661 F.3d. at 1 I 73 (citing Mcintyre, suprn,. 514 U.S. at 341-42}.

19 As stated in Art of Living Foundation v. Does 1- 10, 2011 WL 5444622

20 (N.D. Cal. 201 l ):

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First, to the extent that [the speaker's] anonymity facilitates free speech,

the disclosure of his identity is itself an irreparable harm. See, PeiTY...Y.:

Schwarzenegger, 591 F.3d 1147, 1158 (9th Cir. 20IO)("One injury to

Proponents' First Amendment rights is the disclosure itself. Regardless

of whether they prevail at trial, this injury will not be remediable on

appeaL"). As the Supreme Court has explained, "an advocate may

believe her ideas will be more persuasive if her readers are unaware of

her identity. Anonymity thereby provides a way for a writer who may be

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personally unpopular to ensure that readers will not prejudge her

2 message simply because they do not like its proponent." Mcintyre, supm,

J 514 U.S. at 342. The Highfields court put it more succinctly:

4 "Anonymity liberates." Highfields Capital Management. L.P v. Doe, 385

5 F. Supp. 2d 969 (N.D. CaL 2005). Insofar as [the speaker] may gamer a

6 larger audience by employing a pseudonym, unveiling his true identity

7 diminishes the free exchange of ideas guaranteed by the Constitution.

8 Art ofLiving, supra, 2011 WL 5444622 at *9.

q In this case, there is no question that the content ofMungergames.net is

10 political speech. The blog discusses qualifications of political candidates, political

11 activity and campaigns, and addresses controversial issues of public interest. As

1 2 such, it is the very essence of the First Amendment, and subject to its most rigorous

13 protections. In tum, the identity of the author of Mungergames.net is protected by the

14 First Amendment.

1.5 This Court therefore should not enforce a subpoena seeking the author's

1 6 identity without first addressing the constitutional implications. As discussed in

1 7 detail in the next section, this Court should first require Dhillon to produce evidence

1 H establishing each and every element of her alleged copyright claim. The Court should

1 9 then engage in the required balancing test and quash the subpoena served on New

20 Dream Network, LLC.

21 VI. DOE l'S FIRST AMENDMENT RIGHTS OUTWEIGH DHILLON'S

n PURPORTED NEED FOR DISCLOSURE

1J Because anonymity is protected by the First Amendment, a court should quash )

24 or modify a subpoena designed to breach anonymity. See Fed. R. Civ. P. 45(c)(3)(A)I I

2.S (the "issuing court must quash or modify a subpoena" when it "'requires disclosure of'

privileged or other protected matter, if no exception or waiver applies"). Arista

Records. LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir. 201 0).

a-DEFENDANT DOE 1 's MOTION TO QUASH SUBPOENA

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Numerous cases have discussed the limitations on the subpoena power when

2 that power is invoked in such a manner that it impacts First Amendment rights. See,

J NAACP v. Alabama ex rei. Patterson. 357 U.S. 449,461 (1958) (discussing the

4 First Amendment implications of a civil subpoena to disclose the membership list for

the NAACP); Los Angeles Memorial Coliseum Comm'n v. Nat'l Football League. 89

F.R.D. 489 (C.D. CaLl981) (discussing the First Amendment implications of a civil

subpoena to disclose the names of confidential journalistic sources); Snedigar v.j

Hoddersen, I 14 Wash.2d 153, 786 P.2d 781 (1990) (discussing the First Amendmentj

implications of a civil subpoena to disclose the meeting minutes of a political,.·

5

(J

7

8

9

1 o association).

11 The subject of anonymous internet speech was discussed in SaleHoo Grp., Ltd. I

12 v. ABC Co., 722 F. Supp. 2d 1210, 1213-14 (W.D. Wash. 2010). That court!

13 acknowledged that while federal district courts have adopted different standards j 14 regarding the issue, the common theme is that the plaintiff must make a factual j

!

15 showing that the case has merit before a court will enforce a subpoena that infringes I 1 6 First Amendment rights.

1 7 Since the time of SaleHoo, the Ninth Circuit has addressed the issue and given

18 a nod to the highest standard of proof when political speech is concerned. In

14 Anonymous Online Speakers, the Ninth Circuit stated, "the many federal district and

20 state courts that have dealt with this issue have employed a variety of standards to

21 benchmark whether an anonymous speaker's identity should be revealed." Supra at

22 1175. In order to avoid compromising First Amendment rights in a baseless lawsuit,

I

the Ninth Circuit discussed the many standards of proof courts have employed, i

ranging from a good faith showing, to a prima facie showing, to a motion to dismiss I 25 standard. The court then stated:

26 The district court in this case applied the most exacting standard,

27 established by the Delaware Supreme Court in Doe v. Cahill, 884 A.2d

451 (Del.2005). The Cahill standard requires plaintiffs to be able to

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surv1ve a hypothetical motion for summary judgment and giVe, or

attempt to give, notice to the speaker before discovering the anonymous

speaker's identity. I d. at 461. The court in Cahill therefore required that

the city councilman plaintiff" 'submit sufficient evidence to establish a

prima facie case for each essential element' " of his defamation claim.

I d. at 463 (citation omitted). The court pointed to its "concern[ ] that

setting the standard too Jow will chill potential posters from exercising

their First Amendment right to speak anonymously," Id. at 457, and

reasoned that "the summary judgment standard more appropriately

balances a defamation plaintiffs right to protect his reputation and a

defendant's right to speak anonymously." Id at 462.

Anonymous Online SJ?eakers, SUJ?ra, 661 F.Jd at 1175- 76.

The Ninth Circuit further held "that the nature of the speech should be a driving

1 4 force in choosing a standard by which to balance the rights of anonymous speakers in

15 discovery disputes." Id. at 1177. The court noted that the speech at issue in

i 6 Anonymous Online Speakers was purely commercial speech, and thus "should be

1 7 afforded less protection than political, religious, or literary speech." Id.

Hl In the end, the Anonymous Online Speakers court affirmed the lower court's

1 9 order to disclose some of the anonymous identities, and not to disclose some of the

20 other anonymous identities. The court emphasized that its ruling was based primarily

21 on the extremely limited nature of appellate review under a writ of mandamus, which

22 is an '"extraordinary' remedy limited to 'extraordinary' causes." Id. at 1173. That

n highly deferential standard, combined with the lower protection for commercial\ I

speech, guided the appellate decision to let the disclosure order stand. I d. at l I 77. I i

2S However, the Anonymous Online Speakers did make an important/

26 pronouncement regarding the standard for political speech, which is at issue in the/

2 7 present case. The court noted that the district court applied the Cahill test, "which I elevates the bar to disclosure to the highest level. Because Cahill involved political!

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speech. that court's imposition of a heightened standard is understandable." Id. at !

2 ll 77 (emphasis added). 1 I

·3 Thus, the Ninth Circuit essentially adopted the Cahill holding that when the!

4 speech at issue is political, a plaintiff seeking to force disclosure of an anonymous j

5 speaker's identity must establish each element of her cause of action under thej

h rigorous summary judgment standard.5 This conclusion was echoed in the morel

7 recent case ofSI03, Inc. v. Bodybuilding.com, LLC, 441 F. App'x 431,432 (9th Cir./

H 20 ll ), ("We have recently explained that the rigorous Cahill standard is I 9 'understandable" in a case 'involv[ing] political speech."') (quoting Anonymous/

1 o online Speakers). I 11 Based on this Ninth Circuit ruling, this court should also apply the Cahill 1

! 1 2 test to determine that Dhillon's subpoena should be quashed. The Cahill case l J 1 concerned a defamation action brought by an elected town council member and his\

I 14 wife. The John Doe defendant had anonymously posted statements criticizing the!

1 5 councilman on an internet blog, and plaintiffs sought to compel disclosure of John

1 6 Doe's identity by serving a deposition subpoena on the owner of John Doe's internet

17 lP address. The Cahill case had facts nearly identical to this case: Doe I

18 anonymously posted critical comments on an internet blog regarding Dhillon and

19 Munger, and Plaintiff now seeks to discovery Doe l's identity by serving a subpoena

20 on Doe 1 's internet host.

21 The Cahill court first addressed its grave concerns over the chilling effect

22 ordering disclosure of the speaker's identity, stating that "Internet speech is often

anonymous .... For better or worse, then •the audience must evaluate [a] speaker's

ideas based on her words alone .... This unique feature of the [the internet] promises

2 5 to make pubHc debate in cyberspace less hierarchical and discriminatory' than in the

I 26

s Interestingly, the court also stated, "Even if the speech was commercial, the/1

district court's choice of the Cahill test did not constitute clear error." I d. i

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1 real world because it disguises status indicators such as race, class and age." Doe v .. 2 Cahill, supra, 884 A.2d at 455 - 56 (citations omitted). I

Noting that "in general, our society accords greater weight to the value of free j i

4 speech than to the dangers of its misuse," the Cahill court held "that a defamation I I

s plaintiff must satisfY a 'summary judgment' standard before obtaining the identity ofl

6 an anonymous defendant We are concerned that setting the standard too low will I I

7 chill potential posters from exercising their First Amendment right to speak/ i I

8 anonymously." Id. at 457. Thus, to obtain discovery of an anonymous defimdant'sj

9 identity under the summary judgment standard, the Cahill court required plaintiff to/

10 "submit sufficient evidence to establish a prima facie case for each essential elementj

11 of the claim in question. In other words, the defamation plaintiff ... must introduce l

12 evidence creating a genuine issue of material fact for all elements .... " Id. at 463./

1 3 The Cahill court found plaintiff had not done so.

14 Notably, the Cahill case concerned alleged defamation rather than alleged

1 5 copyright infringement. Defamatory speech is not entitled to First Amendment

16 protection. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942).

17 Copyright law, however, contains certain exceptions to alleged infringement,

1 u including the "Fair Use" doctrine discussed later in this brief. Thus, the Cahill

19 reasoning applies with even greater force to a claim of copyright infringement, which

20 is less harmful and more protected than defamatory speech.

21 In addition, several courts that have addressed this tssue in the copyright

22 context have also held plaintiff to this heightened standard of proof before an

23 anonymous speaker's identity will be disclosed. To date, the Second Circuit is the

24 only federal circuit court that has addressed this issue in the copyright context. In

Arista Records, LLC v. Doe 3, 604 F.3d 110 (2010), plaintiff sought the identity

26 individuals who had iHegally downloaded music recordings by serving a subpoena on

• 27 the common ISP. Noting that the First Amendment does not "provide a license

2 8 copyright infiingement", the Arista court adopted a five-part test for quashing the

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subpoena that was set forth in Sony Music Entertainment Inc. v. Does 1 -402

326 F.

2 Supp. 2d 556 (S.D.N.Y. 2004), which is:

J 1 - the concreteness of the plaintiffs showing of a prima facie claim

4 actionable harm,

5 2 - the specificity of the discovery request,

b 3 - the absence of alternative means to obtain the subpoenaed information,

7 4 - the need for subpoenaed information to advance the claim, and

8 5- the objecting party's expectation of privacy.

9 Arista, supra, 604 F.2d at 119, quoting, Sony Music, supra, 326 F. Supp. at 564 - 65

1 o (emphasis added). Thus, the Arista court also required a prima facie showing of each

11 element of the cause of action.

1 2 A number of district courts have required the same in the intellectual property

13 context, including several from the Northern District of California, where this case is

14 pending. See, e.g., Highfields, supr~ 385 F. Supp. 2d 969 (N.D. Cal. 2011) (granting

1 5 a motion to quash, stating plaintiff seeking to discover identity of anonymous internet

16 speaker must show there is real evidentiary basis for claim, including trademark

17 infringement); SaleHoo, supra, 722 F. Supp. 2d 1210, 1213-14 (W.D. Wash. 2010)

1 s (granting a motion to quash, and stating "plaintiff must, in general allege a facially

1 9 valid cause of action and produce prima facie evidence to support aU of the elements

20 of the cause of action within his or her control"). ! 21 One particularly instructive case is Art of Living Found. v. Does 1-10, 2011!

22 WL 5444622 (N.D. Cal. Nov. 9, 20II). In Art of Living, an anonymous internet\ I

23 poster sharply criticized the Art of Living Foundation ("AOLF"), which styled itself!

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an '"international 'educational and humanitarian' organization dedicated to teaching/

the spiritual lessons of 'His Holiness Ravi Shankar."' I d. at * 1. The Doe defendants

published postings that called AOLF a manipulative and abusive cult, and also!

allegedly published AOLF's "Breate Water Sound Manual." Doe defendants claimed/

they published the manual to "debunk the notion that Ravi Shankar is an enlightened j

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1 being", and that they removed the manual shortly after receiving a DMCA takedown

2 notice. I d. Plaintiff sued for copyright infringement and other claims.

The Art of Living court adopted the foregoing Highfields standard of proof,

4 based on the nature of the speech at issue, and quashed the subpoena. The court '

5 stated, "In choosing the proper standard to apply, the district court should focus on

b the "nature" of the speech conducted by the defendant, rather than the cause of action

7 alleged by the plaintiff .... For example, a more rigorous standard may be applicable

8 where the defendant's speech is political, religious or literary, while commercial

9 speech should be subject to a lesser standard." Id. at *5. (citations omitted) (emphasis

10 added).

11 The court found that defendants' speech in Art of Living raised substantial

12 First Amendment concerns because it was commentary on a public issue. It thus was

13 subject to the most rigorous protections, and the Highfields standard was appropriate:

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Highfields establishes a two-part test for determining whether to allow

discovery seeking the identity of an anonymous defendant: ( 1) The

plaintiff must produce competent evidence supporting a finding of each

fact that is essential to a given cause of action; and (2) if the plaintiff

makes a sufficient evidentiary showing, the court must compare the

magnitude of the harms that would be caused to the competing interests

by a ruling in favor of the plaintiff and by a ruling in favor of the

defendant. Id. 975-76.

Art ofLiving, supra, 2011 WL 5444622 at* 7. 21

26

The Highfields court explained these two prongs as follows:

It is not enough for a plaintiff simply to plead and pray. Allegation and

speculation are insufficient. The standards that inform Rule 8 and Rule

l2(b)(6) offer too little protection to the defendant's competing interests.

Thus, the plaintiff must adduce competent evidence-and the evidence

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plaintiff adduces must address all of the inferences of fact that plaintiff

2 would need to prove in order to prevail under at least one of the causes

3 of action plaintiff asserts. In other words, the evidence that plaintiff

-t adduces must, if unrebutted, tend to support a finding of each fact that is

5 essential to a given cause of action. The court may not enforce the

6 subpoena if, under plaintiffs showing, any essential fact or finding lacks

7 the requisite evidentiary support.

a

9 The court proceeds to the second component of the test if, but only if, the

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plaintiff makes an evidentiary showing sufficient to satisfy the court in

the first component of the test. If reached, the second component of the

test requires the court to assess and compare the magnitude of the hanns

1 3 that would be caused to the competing interests by a ruling in favor of

14 plaintiff and by a ruling in favor of defendant.

1S Highfields, supr~ 385 F. Supp. 2d at 974-76.

16 Based on this standard, the Art of Living court found that the chilling impact ofl I

1 7 disclosing defendants' identities would create a substantial cost to the public. As

1 B stated in Highfields, "When word gets out that the price tag of effective sardonic

1Y speech [includes disclosure of the speaker's identity]. that speech likely will i

20 disappear." Art of Living, supra, 2011 WL 5444622 at * 7 (quoting, Highfields, 385! !

21 F. Supp. 2d at 981). The Art of Living case is squarely applicable to the present case.j

22 and this court should follow its persuasive and well-supported reasoning. ! 23 In the instant case, Dhillon certainly has not made such an evidentiaryj

showing. The fair use doctrine serves as an absolute defense to copyright I i

infringement in this case. Therefore, this Court should quash the subpoena and I i

should not order disclosure of the identity of Doe 1 or any of the Doe defendants.

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VII. DHILLON FAILED TO MAKE A SUFFICIENT SHOWING J 2 INFRJNGEMENT IN LIGHT OF THE "FAIR USE" DOCTRINE

.l To establish infringement of copyright, '"two elements must be proven: ( 1)

4 ownership of a valid copyright, and (2) copying of constituent elements of the work

5 that are original." Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S.

6 340,361, 111 S.Ct. 1282, 1!3 L.Ed.2d 358 (1991). See also, 17 U.S.C. § 50l(a). In

7 UMG Recordings, Inc. v. Augusto, 628 F.Jd 1175, 1178 (9th Cir.20ll). the court

8 phrased the second element as "violation by the alleged infringer of at least one of the

9 exclusive rights granted to copyright owners by the Copyright Act."

10 Dhillon cannot meet her burden of proof on these elements. Specifically, she

11 cannot present sufficient evidence of actual infringement. She alleges that Doe 1

12 used her political campaign photo in an article entitled "Meet Harmeet" on the

11 mungergames.net political blog. Under the "Fair Use" doctrine, this is not

1 4 infringement of a copyrighted work. As stated in the Art of Living case, supra:

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[E]vidence of copyright infringement does not automatically remove the

speech at issue from the scope of the First Amendment. While "the First

Amendment does not shield copyright infringement," (citation omitted)

"copyright law contains built-in First Amendment accommodations."

Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003). Perhaps the most

important is the doctrine of fair use .... 17 U.S.C. § 1 07; see also, Elvis

Presley Enters. v. Passport Video, 349 F.3d 622, 626 (9th Cir.2003)

("First Amendment concerns in copyright cases are subsumed within the

fair use inquiry.").

Art of Living. supra, 2011 WL 5444622 at *6.

The "fair use" of a copyrighted work "for purposes such as criticism, comment,

news reporting, teaching (including multiple copies for classroom use), scholarship,

or research" is not an infringement of copyright. In determining whether the use

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made of a work in any particular case is a fair use the factors to be considered shall

' include--

(I) the purpose and character of the use, including whether such use is of a

commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the

copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the

copyrighted work.

The fact that a work is unpublished shaH not itself bar a finding of fair use if such

finding is made upon consideration of all the above factors. I 7 U.S.C. § I 07.

This exception "permits courts to avoid rigid application of the copyright

statute when, on occasion, it would stifle the very creativity which that law is

1 1 designed to foster." Kelly v. Arriba Soft Cmp., 336 F. 3d 811, 817 (9th Cir. 2003 ),

quoting, Dr. Seuss Enters., L.P v. Penguin Books USA, Inc., 109 F. 3d 1394, 1399

, , , (9111 Cir. 1997). The Arriba Soft court also stated, "We must balance these factors in

light of the objectives of copyright law, rather than view them as definitive or

determinative tests." Arriba Soft, suprn, 109 F.3d at 1399.

A. PURPOSE AND CHARACTER OF THE USE.

The question regarding this factor is "whether the new work merely

supersede[sj the objects of the original creation, or instead adds something new, with

a further purpose of different character, altering the first with new expression,

meaning, or message; it asks, in other words, whether and to what extent the new

work is transfonnative." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579

' , ( 1994 ). Ibe more trans formative the new work, the less important the other factors,

including commercialism, become." Id. "TypicaHy, a work created for commercial

use is less likely to bear fair use protection; however, the commercial/non

commercial distinction is Jess significant the more transfonnative the work is."

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DEFFNDANT DOE 1 's MOTION TO QUASH SUBPOENA

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1 Northland Family Planning Clinic, Inc. v. Center for Bio-Ethlcal Reform, 868

2 F.Supp.2d 962,970 (C.D. Cal. 2012).

3 Cases have consistently held that reproducing a photographic image

4 purposes of criticism or commentary is transformative, and thus cannot constitute

5 copyright infringement. In the Ninth Circuit Arriba Soft case, defendant was an

6 internet search engine that displayed search results in the fonn of thumbnail

7 photographic images. Plaintiff was a photographer whose photos of the American

8 West appeared in defendant's search engine results.

9 The court focused on the fact that the search engine's images served an entirely

1 o different function that the original photographic images, and found no infringement. I 11 While the photographer's "images are used to portray scenes ... in an aesthetic/

12 manner, ... Arriba's search engine functions as a tool to help index and improve!

13 access to images .... " Arriba Soft, supra, 336 F.3d at 818. j

14 In Hustler Magazine, Inc. v. Moral Majority, Inc.,606 F.Supp. 1526, I 5361 i

1 :J (C.D. Cal. 1985), afPd, 796 F.2d 1148 (9th Cir. 1986), Hustler magazine brought anj i

16 infringement action against a fundamentalist minister for reproducing the magazine's I 17 parody ads that prominently featured the minister. The court found that the minister!

1 a had reproduced the ad as part of a "broader, continuing debate over pornography and)

1 q other social issues" between the magazine and the minister. The court found no I

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infringement and granted summary judgment in favor of the minister. \

The court stated, "[W]hen an act of copying occurs in the course of a political, II

social or moral debate, the public interest in free expression is one factor favoring a,

finding of fair use." ld. See also, Keep Thomson Governor Committee v. Citizens forj

Gallen Committee, 457 F.Supp. 957, 959-60 (D.N.H. 1978) (political committee's

use of a portion of rival candidate's musical composition amounted to fair use in light j

of public interest in full debate over election and absence of injury to plaintiff). I The recent Art of Living case also discussed the fair use doctrine in the context I

of reproducing an entire pamphlet for purposes of criticizing its author as a sham and/

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a fraud. Although the Art of Living court stated it did not need to decide whether the

copying was fair use, "the circumstances here create a substantial question as to

whether the doctrine applies." Art of Living, supra, 20ll WL 5444622 at *5. Seej

also, New Era Publications Intern., ApS v. Carol Pub. Group, 904 F.2d 152 (2d/

Cir.1990) (the use of copyrighted quotations in a biography of Church of Scientology j

founder L. Ron. Hubbard was protected where the intended purpose of the work was I to show that "Hubbard was a charlatan and the Church a dangerous cult'~). I

Several other recent district court opinions have found that using a photo fori

purposes of criticizing the subject of the photo is fair use. See Sedgwick Claims! I

Mgmt. Servs., Inc. v. Delsman, 2009 WL 2157573, at *5 (N.D. CaL 2009) (finding!

that defendant's use of photographs of two of plaintiff's executives as a vehicle for)

criticizing plaintiffs aHeged business practices was "fundamentally different" than

the original promotional reason), aff'Q, 422 F. App'x 651 {9th Cir. 201 I); Ascend

Healthcare Corp. v. Wells, Slip Copy, 2013 WL 1010589 (E.D.N.C. 2013) (finding

use of two entire photographs fair use, on a blog criticizing the mental hospital shown

in the photographs); Baraban v. Time Warner Inc., 54 USPQ2d 1759 (S.D.N.Y. 2000} 1

{granting summary judgment for accused infringer, which had taken an entire 1

photograph of a nuclear plant and used it in a chapter of a book criticizing the nuclear

industry's and the government's portrayal of nuclear power as safe).

In the present case, the use ofDhiHon's photograph was dearly transformative.

Ms. Dhillon's stated original purpose of the photo was for publicity for a political

campaign, whereas mungergames.net used the photo for purposes of criticizing Ms.

Dhillon's political activities. These two purposes could not be more different.

In addition, mungergames.net did not use the photo for commercial purposes,

which increases the inference of fair use. Instead, mungergames.net posted the photo

on a free internet blog for purposes of engaging in political debate over an issue

public concern. Mungergames.net' s use is, therefore, is at the very core of the First

Amendment It is subject to the most rigorous protection.

19 DEFENDANT DOE 1's MOTION TO QUASH SUBPOENA

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B. NA TIJRE OF THE COPYRIGHTED WORK

The Ninth Circuit has described this factor weU in the Arriba Soft case, stating:

Works that are creative in nature are closer to the core of intended

copyright protection than are more fact-based works." Photographs that

are meant to be viewed by the public for informative and aesthetic

purposes . . . are generally creative in nature. The fact that a work is

published or unpublished also is a critical element of its nature.

Published works are more likely to qualifY as fair use because the first I appearance of the artist's expression has already occurred. j

10 Arriba Soft, supra, 336 F.3d at 820, quoting, Harper & Row Publishers, Inc. v. Nation!

11 Enters., 471 U.S. 539, 564 (1985) (noting that the scope of fair use is narrower with I 12 respect to unpublished works because the author's right to control the first public j

11 appearance of his work weighs against the use ofhis work before its release). I 14 In this case, Ms. Dhillon has, by her own allegations, extensively published and!

I 15 released her publicity headshot photo to the general public over the course of the past!

16 several years. As she freely admits in paragraph 14 of her Complaint, "Ms. Dhillon I·

t 7 has used the 2008 Photograph, including the Headshot Photograph, in connection

1 B with her campaign for Member of the State Assembly, beginning in or around June

19 2008, as well as in connection with her subsequent campaigns, political activities, and

20 various professional marketing efforts." (Cigel DecL, Exh. 7, Complaint at~ 14).

21 Therefore, the single isolated use of Dhillon's widely published headshot

22 publicity is more likely to be fair use than not, especially because she is a political

23 public figure. In addition, although a photographer's use of lighting or angle

setting sometimes may be deemed "creative", Ms. DhiHon 's purpose m

commissioning the photo (which seems to have been taken outside with her standing

in sunlight next to a building) was for campaign publicity. (Cigel DecL, Exh. 7,

Complaint at 1[ 11 ). The subject photo was obviously for the purpose of identification

- 20-DEFENDANT DOE 1 's MOHON TO QUASH SUBPOENA

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1 and face recognition rather than creative aesthetics. Thus, this factor weighs in

2 mungergames.net' s favor as welL

.~ C. AMOUNT AND SUBSTANTIALITY OF PORTION USED

4 As stated in Arriba Soft, "the extent of permissible copying varies with the

5 purpose and character of the use. (citation omitted) If the secondary user only copies

6 as much as is necessary for his or her intended use, then this factor will not weigh

7 against him or her." Arriba Soft, supr~ 336 F.3d at 820- 821. The Arriba Soft court

8 continued, "It was necessary for Arriba to copy the entire image to aU ow users to

9 recognize the image and decide whether to pursue more information .... If

10 only copied part of the image, it would be more difficult to identify it, thereby

11 reducing the usefulness of the visual search engine." Id. at 821.

12 In the present case, the purpose of mungergames.net's use of the photograph!

13 was to allow readers of mungergames.net to identity Ms. Dhillon, the subject of the!

14 political blog entry. It is impossible to use only a portion of that headshotj

1 5 photograph. It should be beyond dispute that mungergames.net copied only as much~

16 of the photo as was necessary. I I

17 D. EFFECT OF THE USE UPON THE POTENTIAL ~T FOR OR! i

1 B VALUE OF THE COPYRIGHTED WORK i 19 In discussing this factor, the Arriba Soft court stated that courts should consider I

!

20 whether the alleged copying harmed the copyright owner's market, or would have a I 21 substantial adverse impact on the potential market for the original. I d. at 82 L In this l

I 22 case, there simply is no market for Dhillon's widely-used publicity headshotJ

2 3 photograph. She cannot identity any market and has never alleged that she sells her i

24 publicity headshot for profit. On the contrary, as already stated, she used the photo

2 5 issue in political campaigns and in marketing efforts.

26 Doe 1 cannot conceive of any market that is banned by copying a widely

27 published publicity headshot into a political blog for purposes of political debate. By

28 its nature, a publicity photo is distributed free and in mass for purposes of generating

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1 media attention and notoriety. In addition, that photograph has been removed from\ I

1 the article on mungergames.net. Thus, this factor weighs in mungergames.net's favorj

.l as welL j

4 In summary, each ofthe four "Fair Use" factors weigh heavily in finding thatl !

5 there was no copyright infringement. The photo was used for First Amendmemj•

6 political commentary, a purpose very different from the original purpose of campaignj

7 publicity, and therefore "transformative." The photo had been widely distributed and/!' 8 published prior to its appearance in mungergames.net, which copied only as much of1

9 the photo as was necessary, and there was no impact on any potential market for a

1 o photo that was used for publicity rather than sold.

11 Thus, because mungergames.net's alleged copying was "'Fair Use", there is no

1 2 copyright infringement. Dhillon cannot present any evidence to counter a finding

13 fair use, and thus she could not withstand a motion for summary judgment as required

14 for political speech.

1 s VIII. DOE 1 WOULD SUFFER GREAT HARM IF HIS IDENTITY WERE

16 DISCLOSED

1 7 As stated in the cases discussed above, even if a plaintiff submits sufficient

18 evidence of infringement, courts should still balance the potential harm to the

19 defendant against the plaintiff's need for disclosure of his identity. See, e.g.,

20 SaleHoo, supra, 722 F. Supp. 2d at 1216-17; Highfields, supra, 385 F.Supp.2d at 975j

21 - 76 (court should "assess and compare the magnitude of the harms that would be I · I

22 caused to the competing interests by a ruling in favor of plaintiff and by a ruling in\ l

2 J favor of defendant.") l' '

24 As noted by the Cahill court, a plaintiff could bring a non-meritorious action

2.1 ag:Unst an anonymous defen~t, knowi~g th~y will lose, but still be successful in l. 26 their mam goal: unmasking their crltlc's Identity. "After obtammg the identity of anJ .

27 anonymous critic through the compulsory discovery process, a ... plaintiff whol l

28 either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-

22-0fffNDANT DOE l's MOTION TO QUASH SUBPOENA

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judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or\

retribution." Cahill, supra, 884 A.2d at 457 (emphasis added). That is one of the!

primary reasons the CahiB court adopted a "summary judgment" standard of proof for/

political speech, rather than the lower good faith standard. I d. I - I

Similarly, in this case, Dhillon's $250.00 copyright infringement claim does!

not appear sincere. It is merely a vehicle to serve multiple subpoenas to unmask the j

identity of the Doe defendants, and thereby chill free speech under the First/

Amendment In addition, as Dhillon certainly knows, she is not even entitled to the'

attorneys' fees she seeks in her Complaint, nor to any statutory damages. 1

Mungergames.net's alleged infringement occurred on February 12, 2013. However, I I

Dhillon did not seek to register her copyright until February 21, 2013, when shel

submitted her complete application. (Cigel Decl., Exh. "E", Complaint at ft 15, 17).

Where a copyright owner fails to register its work within three months of publication

and the purported infringement occurs prior to registration, the copyright owner is not

entitled to statutory damages or attorney's fees. 17 U.S.C. § 41

Thus, this case is not about a true interest in protecting a copyright, or seeking ·

compensation. Instead, this case smacks of improper intent to seek the identity of,

and then seek revenge against, someone who is critical of Dhillon's and Munger's

politics. "The spirit of the First Amendment applies to the copyright laws at least to

the extent that the courts should not tolerate any attempted interference with the

21 public's right to be informed regarding matters of general interest when anyone seeks j

22 to use the copyright statute which was designed to protect interests of quite a different

nature." Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 31 J (2d

Cir. 1966) (Lombard, J. and Hays, J., concurring).

In the Rosemont case, the Court of Appeals reversed the grant of an injunction, l

26 on copyright grounds, to a Howard Hughes-owned entity that had sought to prevent!

2 7 publication of a biography that was critical of Hughes. I d. The concurring Justices/

28 found it significant that the record "pointed to the existence of a scheme developed by\

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1 Hughes and his attorneys and employees to prevent the publication of any biographJ I

1. of Hughes and, in particular, the [critical] biography. Id at 311 - 12. I J Similarly, in this case, the reasonable inference from Dhillon's complaint isl

l 4 that this matter is not about copyright infringement at all. Dhillon was not selling herl

l 5 headshot, but was instead publishing it freely to anyone who would give her!

6 campaign publicity. Even so, DhiHon is so determined to find out who is behind thej

7 mungergames.net blog that she is now seeking to obtain two additional subpoenas fori

8 that same purpose in the Northern District of California. !

9 Thus, the potential harm to Doe 1 is great. By contrast, the potential harm to! ! I

1 0 Dhillon if this subpoena is quashed is nonexistent. The cost to Dhillon of pursuing I i

11 this matter to judgment is exponentially greater than the $250 in damages she seeks./ I

IX. CONCLUSION I

1 2 Balancing these competing interests, this Court should quash this subpoena.

I

For all the foregoing reasons, Doe 1 respectfully requests this Court to quash! 14

1 s the subpoena dated July 22, 2013.

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17 Dated: September 20,2013

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THE CIGEL LAW GROUP, P.C.

By: _-{2-=-j-/L_(_l __ __,c.,_._-~ ____ _ Rick A. Cigel j Attorneys for Defendant DOE 1

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1 PROOF OF SERVICE

2 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRJCT OF CALIFORNIA 3

CASE NAME: IJARMEET K. DWLLON v. DOE I 4

The wtdersigned declares: I am a resident of the United States and am employed in the 5 City and County of Los Angeles, State of California; I am over the age of eighteen years and

6 not a party to the within action; my business address is 10866 Wilshire Boulevard. Suite 400, Los Angeles, California 90024.

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On September 20,2013, I served tbe following documents:

1. NOTICE OF MOTION AND MOTION BY DEFENDANT DOE 1 TO QUASH SUBPOENA ISSUED IN CENTRAL DISTRICT OF CALIFORNIA TO NEW DREAM NE1WORK, LLC

2. DECLARATION OF RICK A. CIGEL IN SUPPORT OF MOTION BY DEFENDANT DOE 1 TO QUASH SUBPOENA ISSUED IN CENTRAL DISTRICT OF CALIFORNIA TO NEW DREAM NETWORK, LLC

3. CIVIL CASE COVER SHEET

4. CERTIFICATE OF INTERESTED PARTIES

1 s By serving in the manner described below to the interested parties herein and addressed to:

16 Harold P. Smith Krista L. Shoquist

17 Dhillon & Smith. LLP

Joel Voelzke Intellectual Property Law Office of Joel Voelzke

1 g 177 Post Street, Suite 700 San Francisco, CA 94108

24772 W. Saddle Peak Rood Malibu, CA 90265-3042

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20 Attorneys for Dhillon Attorney for New Dream Network

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r::-1 MAD..: I caused such envelope(s) to be deposited in the mail at my business address, with l.!.J postage thereon fully prepaid. addressed to the addressee( s) designated. f am readily familiar

with the business practice of collecting and processing correspondence to be deposited with the United States Postal Service on that same day in the ordinary course of business.

r::-1 (FEDERAL): I •~are that I am employed in the office of a member of the bar of this court at l..!...J whose direction tbe service was made.

Executed on September 20. 2013 at Los Angeles. Califomi

I Proof of Service

EXHIBIT H Page 31

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EXHIBIT I


Internet Gains on Television as Public's Main News Source I Pew Res... http://www.people-press.org/2011/0l/04/intemet-gains-on-television-..

•• .

Pe"T Research enter for the People tl1e Press

JANUARY 4, 2011

Internet Gains on Television as Public's Main News Source More Yaung People Cite Internet than 1V

OVERVlE\N

The internet is slowly closing in on Where Oo You Most of your television as Americans' main source of News About National and

national and international news.

Currently, 41% say they get most of

their news about national and

international news from the internet,

which is little changed over the past

two years but up 17 points since 2007.

Television remains the most widely

used source for national and

international news- 66% of

Americans say it is their main source of

news - but that is down from 74%

three years ago and 82% as recently as 2002.

The national survey by the Pew

International Issues?

T elevis1on 74

Internet 41

2001 '02 '03 04 '05 '06 '07 'OS '09 2010

Research Center for the People & the Press, conducted Dec. 1-5, 2010 among 1,500

adults reached on cell phones and landiines, finds that more people continue to

cite the internet than newspapers as their main source of nevvs, reflecting both the

EXHIBIT I Page 1 .

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Internet Gains on Television as Public's Main News Source l Pew Res... http:/ fwww.people-press.org/20 11/0 l/04/intemet-gains-on-tele'tision-.

growth of the internet, and the gradual decline in newspaper readership (from

34% in 2007 to 31% now). The proportion citing radio as their main source of

national and international news has remained relatively stable in recent years;

currently, 16% say it is their main source.

An analysis of how different generations are getting their news suggests that these

trends are likely to continue. In 2010, for the first time, the internet has surpassed

television as the main source of national and international news for people

younger than 30. Since 2007, the number of 18 to 29 year olds citing the internet

as their main source has nearly doubled, from 34% to 65%. Over this period, the

number of young people citing television as their main news source has dropped

from 68% to 52%.

Among those 30 to 49, the internet is on track to equal, or perhaps surpass,

television as the main source of national and international news within the next

few years. Currently, 48% say the internet is their main source - up 16 points from

2007- and 63% cite television - down eight points.

EXHIBIT I Page 2

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Internet Gains 011 Television as Public's Main News Source 1 Pew Res... http://www.people-press.org/2011/0l/04/intemet-gains-on-television-.

Main News Source1 By Age 18-29 Year-olds

15 15

2001 ·o2 ·a3 04 ·as '06 '07 ·os ·og 20Hl 2001 '02 '03 04 '05 '06 '07 'OS '09 2010

50-64 Yeer-okls 65 Years Old and Over

Tefevisi<H'I

'76 i' 76

2001 '02 '03 04 'OS '06 '07 '08 '09 2010 2001 '02 '03 04 '05 '06 '07 '08 '09 2010

The internet also has gro"Wn as a news source for people ages so to 64; currently

34% say the internet is their main source of national and international news,

nearly equal to the number who cite newspapers (38%), though stili far below

television (71%). There has been relatively little change in the how people age 65

and older get their news. The internet has risen to 14% from s% in 2007, but is

still far behind newspapers (47>A>) and television (79%) as a main source.

EXHIBIT I Page 3

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Internet Gains on Television as Public's Main News Source 1 Pew Res... http://www.people-press.org/2011/01/04/intemet-gains-on·television-..

Internet Gains on Television as Public's Main News Source I Pew Res... http://www.peopie-press.org/201 1/01/04/intemet-gains-on-television-

The decline in the share of Americans " Internet Now Rivals TV as Main •

who cite television as their main source News Source for College Grads

of national and international news Tele- Inter- News- Haga-.'\ t~

vision net paper Radio zines crosses all age groups. Over the past "' 10 '" ""

01

"" ~·o 01

'" three years, the number saying 'IV is Total 66 41 31 16 3 .. their main source has fallen 16 points

Men 61 43 29 17 3

Women 70 39 33 15 3

among 18-29 year-olds, eight points Men 18·49 55 56 21 19 3

among those 30 to 49, and six points Women 18-49 62 53 23 16 3

Men 50+ 69 28 39 14 3 among those age 50 and older. Women 50+ 78 24 45 14 3

White 54 41 32 18 3 . Black 86 35 30 9 3 ~ . • TV News Still Dominates Among

Hispanic 66 45 28 12 3

less Educated College grad+ 54 51 35 20 5

Some college 63 51 30 15 2 HS or less 75 29 29 14 2

College graduates are about as likely to $751< or more 57 54 29 22 4

$30k-$74,999 57 42 29 17 3 get most of their national and Less than $30k 72 34 33 12 2

international news from the internet Northeast 53 40 38 15 5

(51%) as television (54%). Those with Midwest 73 38 30 17 2

South 68 41 29 13 3 some college are just as likely as West 55 47 30 20 2

college grads to cite the internet as Republican 67 38 29 16 3

their main source (51%), while 63% Democrat 69 43 32 12 5

Independent 63 43 33 18 2

cite television. By contrast, just 29% of

those with no more than a high school

education cite the internet while more

than twice as many (75%) cite

television.

Similarly, those with household incomes of $75,000 or more are about as likely to

get most of their nevvs on the internet (54%) as from television (57%). People with

household incomes under $30,000 are far more likely to cite television (72%) than

the internet (34%).

There also are different patterns of new-s consumption across regions of the

country. Notably, people living in the West are the most likely to cite the internet

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Whether Critical Of King George, or Charles Munger. Jr. Anonyrnous Speech Should Be Protected 1 FlashReport

October 2013 September 2013

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Jon Fleischman: To Our California

Republicans In

Jon Fleischman: Eormer CRP Vice

Whether Critical Of King George, or Charles Munger, Jr, Anonymous Speech Should Be Protected

Posted by Jon Fleischman at 11:33 pm on Sep 29, 2013

People who frequent this website know that it is our general rule (with occasional exception) to only support attributed blogging and commenting. I can think of a handful of times over the years when we have

featured, or linked to, anonymous content

That having been said, anonymous speech certainly has its

place In politics, and here in America its foundations are rooted

in our beginnings. The federalist papers, as they were drafted, first appeared in pamphlets around the colonies under the pseudonym ~ and Benjamin Franklin himsetf wrote on

more than one occasion under the pen name of Mrs Silence

~.

Those who publish their thoughts anonymously have a high bar

to reach in order to be credible, as many will discount

someone's words when they do not know the tme identify of their author. But slilllhere are some who are in a position to shed light on an issue, or bring matters to light, who might put themselves at risk by exposing themselves publicly. Certainly

this might be the case if you were stirring up enlightenment and dissent amongst colonials living under the tyranny of the British

government

I bring this up because for some period of time there has been an anonymous political website, The Munger Games, which has been producing a lot of content critical of Charles Munger, Jr.

Munger, of course, is a very high profile and controversial figure in California politics. He has spent north of

40 million dollars on ballot measures, as well as party, candidate and independent expenditure campaigns in California in recent years. \Mlile his contributions to try and end the corrupting influence of public

employee unions in California politics are laudable, as are some of his contributions to assist with

Republican party building, Munger has also spent a lot of money to lead an ongoing, major effort to shift the California GOP lef!wards towards "Democrat lite"- which, as you might expect, I think is a very bad idea.

That said, this column is not really intended to be a critique of Munger, thought I have done that before. It's really about defending the right of those who would seek to blog anonymously about Munger (or anyone else) to have the right to do so. I don't blog anonymously myself. I do not author the Munger Games nor

to I create any of the content for that site. I don't really care who does it and in fact go out of my way not to inquire or probe into that question out of respect for their right to be unattributed.

That having been said, I will provide one of my (very) occasional links to anonymous content and direct

your attention to this latest post on the Munger Games website, entitled: Criticize Charles Munger and He'll Subpeona Your Gmail Account

Charles Munger, Jr.

Apparently at some point the Munger Games ran a photo of California Republican Party Vice Chairman Harmeet Dhillon on their

site. Harmeel has filed what in my opinion is a questionable and

certainly unfortunate lawsuit against the Munger Games saying that they did not have authority to use her photograph. Really? It's a

photo thai I've seen used in many places. We have used it here (though it was provided to us by Harmeet for one of the columns by her that we have featured). Anyways, people grab photos all of the time. I actually think it is a good photo of Dhillon - sometimes people use unflattering photos, which is always unfortunate.

The Munger Games writers assert that Harmeet, in her lawsuit, Is acting as an agent for Munger. I couldn't

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Whether Critical Of King George, or Charles Munger, Jr, Anonymous Speech Should Be Protected I FlashReport

Jon Fleischman: YVhether Critical Of

Katy Grimes: Lo and behold!

Richard Rider:

San DiflfJO MidTown Trolley Per Mile Cost Today

~ l...llgjn Entries RSS Comments RSS Word Press org

speak to that, although I do have direct knowledge of one other instance where Hanneet did, in fact,

represent Munger in a legal matter. The Munger Games asserts that the purpose of the suit (which now includes a request to Google to provide email correspondence to and from the Munger Games' Gmail

account) is really a fishing expedition to try and expose the authors of the Munger Games.

If Hanneet's lawsuit succeeds in accomplishing this goal, that would be most unfortunate. As I said above,

anonymous free speech- especially aimed at controversial public ligures such as Munger- has its place. As I also said above, one can and many do discount the content of such speech, because they are suspect of things penned by "secret" authors. But that should be sorted out by the consumers of

information.

Since I have found Harmeet to be a reasonable person, I will end this column by urging her to drop her lawsuit against the unknown authors of the Munger Games. Not because she shouldn't defend her rights to her photo (I'm no expert on that), but because we all lose if anonymous political speech is stifled because of the lawsuit It would also let air out of the allegation by the folks at the Munger Games that she is really acting as a proxy for Munger.

Tags: 8ognymous political speech, California Republican Party, Chartes Munger Jr, Harmeet Dhillon, Munger Games, Eu.l:llu.s., Silence Degood

This entry was posted on Sunday, September 29th, 2013 at 11:33 pm and is filed under Bloo Posts. You can follow any

responses to this entry through the ~feed,

Previous Post Next Post

Christopher Mays · Intellectual W1!son Sonstrn

Before I comment, let me say l have no affiliation with the Munger Games, and have no idea who writes that blog. l also won't comment on Harmeet's lawsuit, the issues of which are far broader than the narrow discussion of anonymous political commentary,

***

I've never chosen to post criticism anonymously, but I can understand the sentiment and reasons why someone would do so in this instance. Mr. Munger has a reputation for having a temper and for holding grudges. I've seen it firsthand when my friend Rohit Joy ran for CRP Bay Area Vice, Mr. and his associates threatened and just about everyone they could to not support

Because Rohit had a public, but reasonable, policy disagreement on how the CRP's proxy operates and advocated for a change away from the current system, which is overrun by operatives.

The authors of the Munger Games wish to continue to post without having their livelihood threatened by Mr. Munger and his associates, in the same way that James Madison, Alexander Hamilton, and others wished to post in their day without fear of personal attack from their political opponents. course the issues then were far more important than today, but the sentiment is still the same.

·Like@·

Sue Caro Oakland,

Anonymity is cowardly. The Munger Games Is not anonymous because King George is to arrest the authors. The Munger Games is anonymous because they are cowards and cannot take arguments to the party public square and win. I can't stand The Munger Games and it took me making requests for them to remove me from their distribution list, which Is BTW,

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Whether Critical Of King George, or Charles Munger, Jr, Anonymous Speech Should Be Protected I FlashReport

illegitimate. Email distribution is required to be Permission Based. There is no general support for The Munger Games. It is simply 'sleazy' gossip, full of innuendo and deceptive conjecture which has one aim and that is to destroy another Republican. It is not responsible nor is it an act of conservative integrity.

Reply·

Steve Frank

The bigger problem Greg is those using their name to spam the entire California Republican delegate list to smear conservatives and activists. The lack of decency and civility by these make Washington look honest--worse they use rumors and half truths to smear people. Any wonder folks are leaving the Republican Party? Great activist prefer to watch reruns of Seinfeld than be a part of a on going smear campaign.

Reply · · Likerr;;;] · at 9:00am

Gregory Gandrud

Jon, perhaps you could comment on whether or not you support anonymous commenters spamming the entire California Republican Party delegate list with their libelous drivel?

Reply Likerr;;;] ,

Justin Smith ·

Stones from a glass house, Greg. You can't send precinct walkers out on your behalf and call it protected speech, then tum around and cry about "spam" political speech in your inbox. Much it is pretty ridiculous that the anonymous authors of the Munger Games content rail against the billionaire incremental democrat's exclusionary and devisive tactics within the CRP, and then turn around and exclude and divide fellow activists. No one's hands are clean, Greg. And speaking stones from a glass house, I see that Aaron Park posted something about integrity, Its comedy gold this morning.

Reply· l'Lik~'

Justin Smith · uJrmmHHunrrms

Gregory, you should really look at who you're tagging in your posts as you tagged the wrong Justin.

Reply , Likerr;;;]

I don't send out masked precinct walkers disseminating libelous materials from anonymous sources.

· Ukerr;;;]·

Tom Kaptain ·

For whatever my opinion is worth as a Democrat, I think most people in politics have seen anonymous attacks and I know I have been on the end of more than a few. Thurlow Weed once said for candidates, that "if someone can smear you, you haven't done a good enough job of getting a message out about who you realty are and what you really stand for" and I think that applies here. I have no idea what the attacks are about, but Jon is that our country made a decision long ago that we would follow a system of as much as possible with limits on what was said only being allowed In situations where general public welfare was endangered. For pecple in the public square like myself or Mr. Munger, the standards are even higher as I think they should be. JMO'

· LikeQ· 20

Celeste Greig

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l find agreeing 90% on the above with Jon, not because he is a long, long time friend but because frivolous law suits have always been associated with the Dems, with the ACLU, with the liberals, with those without Integrity. However It is not a surprise that within the Republican Party we have newcomers who are carbon of the Dems, OR want to make the CRP carbon of the other

I recently was invited attended a great evening (viewing a d0<curner1tarv coming to America") at a home in Encino (San with all attendees or;;,ssrnms.

P"'""'nare, issue oriented, public policy, constitutionalists and highly educated Tea Party members, those in attendance there were only two registered Republicans, myself and my friend Karen, The

message; they do NOT want anything to do with the GOP, they lost creditability and respect for it 5o when we have people who are trying to buy the Party, harm free speech from activists/conservatives, the in result can only lead to apathy, more registering Independents or Declfne to State. I do not know

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PROOF OF SERVICE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

CASE NAME: HARMEET K. DHILLON v. DOE 1 CASE NO. C 13-1465 SI

The undersigned declares: I am a resident of the United States and am employed in the City and County of Los Angeles, State of California; I am over the age of eighteen years and not a party to the within action; my business address is 10866 Wilshire Boulevard, Suite 400, Los Angeles, California 90024.

On October I, 2013, I served the following documents:

1. DECLARATION OF RICK A. CIGEL

2. MEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANT DOE 1 AND THIRD-PARTY MICHAEL J. SCHROEDER IN OPPOSITION TO PLAINTIFF'S ADMINISTRATIVE MOTIONS FOR LEAVE TO TAKE LIMITED DISCOVERY PRIOR TO A RULE 26(t) CONFERENCE

3. CERTIFICATTION OF INTERESTED ENTITIES OR PERSONS

By serving in the manner described below to the interested parties herein and addressed to:

15 Harold P. Smith Krista L. Shoquist

Joel Voelzke Intellectual Property Law Office of Joel Voelzke 24 772 W. Saddle Peak Road 16 Dhillon & Smith, LLP

177 Post Street, Suite 700 Malibu, CA 90265-3042 17 San Francisco, CA 941 08

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Attorney for New Dream Network Attorneys for Dhillon

GJ ELECTRONIC MAILING: I emailed copies of all documents to the above party(s) at their respective email addresses as shown above.

0 MAIL: I caused such envelope(s) to be deposited in the mail at my business address, with postage thereon fully prepaid, addressed to the addressee(s) designated. I am readily familiar with the business practice of collecting and processing correspondence to be deposited with the United States Postal Service on that same day in the ordinary course of business.

0 (FEDERAL): I declare that I am employed by the office of a member of the bar of this court at whose direction the service was made.

Executed on October 1, 2013 at Los Angeles, California.

Proof of Service
