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CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS
CASE NO: 2:13-cv-00395-TOR
Case 2:13-cv-00395-TOR ECF No. 114 filed 10/31/17 PageID.3142 Page 2 of 15
1 TABLE OF CONTENTS
2 Page No.
3 I. INTRODUCTION ....................................................................................... 1
12 V. CONCLUSION ........................................................................................... 9
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CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - i
CASE NO: 1:13-cv-00395-TOR
Case 2:13-cv-00395-TOR ECF No. 114 filed 10/31/17 PageID.3143 Page 3 of 15
1 TABLE OF AUTHORITIES
2 Page No.
3 FEDERAL CASES
12 San Jose Mercury News v. U.S. Dis. Court-N. Dist. (San Jose),
187 F.3d 1096 (9th Cir. 1999) ...........................................................5, 6, 8, 9
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S.E.C. v. AOB Commerce, Inc.,
14 No. CV 07-4507 (CAS), 2013 WL 5405697 (C.D. Cal.
Sept. 23, 2013) ............................................................................................... 8
15
United Nuclear Corp. v. Cranford Ins. Co.,
16 905 F.2d 1424 (10th Cir. 1990) ..................................................................... 7
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CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - ii
CASE NO: 1:13-cv-00395-TOR
Case 2:13-cv-00395-TOR ECF No. 114 filed 10/31/17 PageID.3144 Page 4 of 15
1 I. INTRODUCTION
3 pursuant to Fed. R. Civ. P. 24(b), for the limited purpose of challenging the
7 parties from July 2014 through January 2015. The sealed exhibits are directly
9 Washingtonians and ensuring that government and courts operate in an open and
10 transparent manner.
11 This case presents a rare and important opportunity to shine a light on why
15 therefore respectfully requests that this Court grant it leave to intervene under
19 responsible for the growing wave of copyright trolling lawsuits. Plaintiff Elf-
20 Man, LLC, producer of the motion picture Elf-Man, sued Defendant Ryan
CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - 1
CASE NO: 1:13-cv-00395-TOR
Case 2:13-cv-00395-TOR ECF No. 114 filed 10/31/17 PageID.3145 Page 5 of 15
3 (ISP). The complaint alleged that Elf-Man had recorded each Defendant
6 Plaintiff alleged that its investigator had downloaded the motion picture from
7 each Defendant. Id. After sending subpoenas to the ISPs based on the table of IP
8 addresses allegedly connected to infringing, see ECF No. 1-1, Elf-Man amended
10 After this Court granted the parties stipulated motion for a boilerplate
11 protective order, ECF No. 32, the parties filed several documents separately under
12 seal. See ECF Nos. 39-1, 39-2, 43-5, 43-6, 51-2, 65-2. These documents
13 reportedly trace the bizarre relationship between Elf-Man and the investigators
14 who formally declared they had observed the alleged infringing activity,
15 forming the basis of Elf-Mans entire case. Apparently, Elf-Man, through its
17 (APMC) to manage its piracy efforts, including but not limited to this
19 contract, including how revenue from anti-piracy efforts was divided, if any,
1 In short, several of the documents filed under seal may expose how film
4 seeking quick settlements priced just low enough that it is less expensive for the
7 occurred without any showing of need for secrecy or any specific judicial
8 findings that the need for secrecy outweighed the publics presumptive right of
9 access to court records. Instead, it appears that these records were sealed simply
10 because they contained, or made reference to, documents that were designated
12 protective order did not define confidential, rather, it allowed the producing
14 confidential if it has a good faith basis for asserting is confidential [sic] under
19 and creating more transparency in the judicial system. See Eichstaedt Dec. at 1.
2 clients. Id.
3 The CFJs position is simple: if foreign data collectors and local lawyers
4 are feeding on the subpoena power of federal courts to extract settlements from
5 innocent people, then the public deserves to know. Unfortunately, improper use
8 What makes this case so important is that, based on the unsealed exhibits
10 investigators and experts that claim to identify infringing activities, but its
14 Which is where CFJ comes in. Money and information remain the most
15 significant hurdles for those being named as defendants in lawsuits like this one
16 who receive threatening settlement letters like the one Mr. Lamberson received.
17 Even if an accused infringer has the resources to hire counsel, defense lawyers are
18 unfamiliar with these cases, costing a potential defendant more in legal bills than
19 the cash settlement offered by the copyright trolls. By the time the average lawyer
20 has figured out how to respond, she has sunk more hours into a case than it would
CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - 4
CASE NO: 1:13-cv-00395-TOR
Case 2:13-cv-00395-TOR ECF No. 114 filed 10/31/17 PageID.3148 Page 8 of 15
1 cost to settle. This creates a perverse incentive, where Washingtonians settle cases
3 CFJs goal is to level the playing field and reduce the plaintiffs
5 especially important where, as here, the copyright trolling risks infecting the
7 on accessing court documents, such as the six documents CFJ seeks to unseal.
8 For all these reasons, the CFJ believes that the sealing of the records in this
10 goes to the core of the CFJs mission. The CFJ therefore respectfully requests that
1 common question of fact or law are not required. Id. at 1100. See also Beckman
2 Indus., Inc. v Intl Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992) (holding an
3 independent jurisdictional basis and strong nexus of fact or law are not required
5 intervenor is merely asking the court to exercise a power it already has: the power
6 to modify its order); Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172,
7 1176 (9th Cir. 2006) (nonparty granted permissive intervention for limited
10 When faced with a motion to intervene for the purpose of unsealing court
11 records, the only question is whether the proposed intervention is timely. The
14 intervene; (2) the prejudice to other parties; and (3) the reason for and length of
15 [any] delay. San Jose Mercury News, 187 F.3d at 1100-01. Of these three
16 factors, whether the existing parties would be prejudiced is the most important
18 States v. State of Oregon, 745 F.2d 550, 552 (9th Cir. 1984) (quoting 7A C.
19 Wright & A. Miller, Federal Practice and Procedure 1916 (1972)). When the
20 requested intervention will complicate the issues and prolong the litigation,
CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - 6
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1 there is prejudice to the other parties from the delay in seeking leave to intervene.
2 United States v. State of Wash., 86 F.3d 1499, 1504 (9th Cir. 1996).
3 Here, permitting the CFJ to intervene for the limited purpose of unsealing
4 documents will not prejudice the original parties. The CFJ does not seek to
8 public. Because the proceedings are complete, there is no possibility the CFJs
9 intervention will cause disruption or delay in the proceedings. See Citizens for
10 Balanced Use v. Montana Wilderness Assn, 647 F.3d 893, 897 (9th Cir. 2011)
12 proceedings); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427
13 (10th Cir. 1990) (explaining that where intervention is limited to the collateral
15 the rights of the existing parties is not a concern); Pub. Citizen v. Liggett Grp.,
16 Inc., 858 F.2d 775, 786 (1st Cir. 1988) (stating if the desired intervention relates
17 to an ancillary issue and will not disrupt the resolution of the underlying merits,
19 As to the remaining two factors, the CFJ only recently learned about the
20 sealing of these significant exhibits. Having learned of their existence, the CFJ
CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - 7
CASE NO: 1:13-cv-00395-TOR
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1 acted promptly to file motions to intervene and unseal. Moreover, in the context
4 San Jose Mercury News, 187 F.3d at 1101; see also Perez v. Lantern Light Corp.,
5 No. C12-1406RSM, 2017 WL 2172012 (W.D. Wash. May 17, 2017) (Although
6 this case has been closed since October of 2015, the Court recently allowed
7 WWCP to intervene in this matter pursuant to Local Civil Rule 5(g)(8) for the
9 Inc., No. CV 07-4507 (CAS), 2013 WL 5405697, at *1 (C.D. Cal. Sept. 23, 2013)
10 (permitting intervention for the purpose of unsealing documents five years after
11 the case settled). Therefore, the fact that this case was resolved in January 2015 is
15 As noted above, the Ninth Circuit has repeatedly upheld the intervention of
16 nonparties for purposes of challenging a protective order in cases where there was
17 no common question except the propriety of the order. See Kamakana, 447 F.3d
18 at 1176; San Jose Mercury News, 187 F.3d at 1100. In doing so, it has
19 characterized its own caselaw as holding that . . . [a] strong nexus of fact or law
20 [is] not required where [an] intervenor merely seeks to challenge a protective
CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - 8
CASE NO: 1:13-cv-00395-TOR
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1 order. San Jose Mercury News, 187 F.3d at 1100 (citing Beckman, 966 F.2d at
2 473-74).
3 The reason for this is clear: If courts insisted that intervenors seeking court
4 records raise a common question with the main action beyond the question of
5 whether the records should be sealed, there would be no way for members of the
6 public to gain access to records unless they had some personal interest in the case.
7 This would vitiate the publics right of access to court records. See Kamakana,
8 447 F.3d at 1178-80 (explaining the importance of and justification for the
12 V. CONCLUSION
13 For the foregoing reasons, the CFJ respectfully requests that this Court
14 grant this motion to intervene for the limited purpose of seeking public access to
15 sealed documents.
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CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - 9
CASE NO: 1:13-cv-00395-TOR
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2 2017.
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By: /s/ Kirk D. Miller, WSBA #40025
5 Kirk D. Miller, WSBA #40025
Attorneys for Intervenor Center for Justice
6 421 W. Riverside Avenue, Suite 660
Spokane, Washington 99201-0410
7 Telephone: (509) 413-1494
Facsimile: (509) 413-1724
8 Email: kmiller@millerlawspokane.com
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CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - 10
CASE NO: 1:13-cv-00395-TOR
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1 CERTIFICATE OF SERVICE
3 filed the foregoing with the Clerk of the Court using the CM/ECF system which
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CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - 11
CASE NO: 1:13-cv-00395-TOR
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By: /s/ Kirk D. Miller, WSBA #40025
4 Kirk D. Miller, WSBA #40025
Attorneys for Intervenor Center for Justice
5 421 W. Riverside Avenue, Suite 660
Spokane, Washington 99201-0410
6 Telephone: (509) 413-1494
Facsimile: (509) 413-1724
7 Email: kmiller@millerlawspokane.com
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CENTER FOR JUSTICES MOTION TO INTERVENE FOR
21 THE LIMITED PURPOSE OF CHALLENGING THE
SEALING OF COURT RECORDS - 12
CASE NO: 1:13-cv-00395-TOR