Letter from Brian Buckley to Rex Heinke.
Re: discovery in L.A. Times v. Free Republic.
Date: circa August 6, 1999.
Source: Free Republic, reprinted with permission.

VIA TELECOPIER

Rex S. Heinke, Esq.
Heather L. Wayland, Esq.
GIBSON, DUNN & CRUTCHER
333 S. Grand Avenue
Los Angeles, CA 90071-3197

Matter: Los Angeles Times, et al. v. Free Republic, et al.
U.S.D.C. [Central] Case No. CV-98-7840 MMM (AJWx)

Subject: (1) Depositions of Plaintiffs' employees
(2) Plaintiffs' amended discovery responses

Dear Rex and Heather:

We are in receipt of Plaintiffs' amended discovery responses, delivered near the close of business on Friday, July 30, and of your faxed letter today. Plaintiffs' amended interrogatory responses were served with faxed verifications. We presume that you will forward the original verifications when you receive them.

Deposition Dates for Plaintiffs' Employees

Defendants have tried for over a month to obtain available dates for the depositions of Plaintiffs' employees knowledgeable in technical web site matters. The depositions were noticed for July 8th and 9th and then taken off calendar at your request -- with Plaintiffs claiming inadequate notice. We then proposed July 22nd and 23rd. After not hearing back from Plaintiffs, we noticed the depositions for July 29th and 30th. The depositions were again taken off calendar when you informed us that the deponents were unavailable, and we had still not received Plaintiffs' amended responses and production.

After this history, we receive from you, last night at 5:30 p.m., and today at noon, faxed letters stating that two of the deponents are available tomorrow for deposition. Could you possibly believe that this is reasonable notice to us? We only Friday received Plaintiffs' amended responses, which are wholly inadequate and non-specific. We only received from you last week, for the first time, samples of the web site computer logs. The discovery to which these productions and responses purport to respond was served on May 4th and May 28th. Yet we receive these responses only one week before the deadline for the filing of motions for summary judgment. We still have received no web traffic data for the Washington Post web site.

Plaintiffs' Discovery Responses

We will set forth by separate letter, the specific inadequacies of Plaintiffs' discovery responses. However, we are compelled to initially comment as follows.

In our initial meet-and-confer telephone conferences and correspondence concerning Plaintiffs' discovery responses, we made it clear that we seek answers concerning what evidence exists on Plaintiffs' computers related to "hits" to Plaintiffs web sites referred from our clients' web site. We further made clear our position that this information is directly relevant to the "economic loss" factor expressly set forth in the statue governing the "fair use" exception to copyright infringement. Plaintiffs led us to believe that sufficient answers could be provided in Plaintiffs' discovery responses to obviate the need for the depositions of Plaintiffs' technical employees. Only one week before the deadline to file our cross-motions for summary judgment, and nearly three months after the initially propounded discovery was served, Plaintiffs provide responses which are full of objections and very non-specific and non-itemized in the information provided. You previously agreed that Plaintiffs' would re-state under oath all of the information provided informally by letter. This was not done.

This is the second time that Defendants were "sandbagged" in this manner just prior to the filing deadline. If evidence exists on Plaintiffs' computers which shows, through reasonable inference, that Plaintiffs' web site traffic was increased because of the existence of our clients' web site, then we are entitled to see that evidence and to present such evidence to the Court as part of our motion for summary judgment.

Plaintiffs' eleventh-hour discovery responses make clear that Defendants will have to proceed with the noticed depositions in order to determine what web site traffic data actually exists on Plaintiffs' computers. In addition, if Plaintiffs will not provide more specific answers in their discovery responses, it appears that we will have to seek the Court's intervention.

Summary Judgment Briefing and Hearing Schedule

In light of the foregoing, it is impossible for us to complete the preparation of our motion for summary judgment by this Friday, August 6th. We intend to request the Court to vacate the filing and hearing dates for the motions for summary judgment until the foregoing outstanding discovery disputes are resolved (while leaving on calendar the existing status conference). We would ask that you stipulate to same and to provide us with reasonable times of availability for the depositions of Plaintiffs' employees. If we are not informed of your agreement in this respect by the close of business tomorrow, please consider this notice that we will be seeking ex parte relief vacating any and all briefing and filing schedules for the summary judgment motions.

Please also advise us whether you intend to continue to meet and confer with us concerning the outstanding disputes related to Plaintiffs' interrogatory and production responses.

I look forward to hearing from you.

Very truly yours,

Brian L. Buckley
Counsel for Free Republic, Jim Robinson, and Electronic Orchard