Joint Stipulation: Compel Supplemental Responses to 1st Interrogatories

8/2/2019 Joint Stipulation: Compel Supplemental Responses to 1st Interrogatories

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NZK PRODUCTIONS INC., aCalifornia corporation, and HORIZONALTERNATIVE TELEVISION INC., aDelaw are corporation,

Plaintiffs,v.

STEPHEN CARBONE, an individual,REALITY STEVE, LLC, a Texaslimited liability corporation, and DOES1 through 10, inclusive,Defendants.

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KELLEY DRYE & WARREN LLPMichael J. O'Connor (STATE BAR NO . 90017)Andrew W. DeFrancis (STATE BAR NO. 246399)10100 Santa Monica Boulevard, Twenty-Third FloorLos Angeles, California 90067-4008Telephone: 310) 712-6100Facsimile: 10) 712-6199moconnor kelleydrye.comadefrancis kelleydrye.comAttorneys for PlaintiffsNZK PRODUCTIONS INC. andHORIZON ALTER. TELEVISION INC.BROWN FOX KIZZIA & JOHNSON PLLCD. Bradley Kizzia8226 D ouglas Avenue, Suite 411Dallas, Texas 75225Telephone: c .469) 893-9940Facsimile: 214) [email protected] for Defendants STEPHENCARBONE and REALITY STEVE, LLC

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

CASE NO. CV11-10118 GHK (Ex)JOINT STIPULATION RE:PLAINTIFFS' MOTION TOCOMPEL SUPPLEMENTALRESPONSES TO FIRST SETS OFSPECIAL INTERROGATORIES

[Notice of Motion and Motion,[Proposed] Order, & Decl. of Andrew W.DeFrancis filed concurrently herewith]DISCOVERY MATTER

Fed. R. Civ. P. 37; L.R. 37-1, et seq.Hon. Charles F. Eick(U.S. Magistrate Judge)May 18, 20129:30 a.m.Courtroom 2 0

[No discovery cut-off, pretrialconference, or trial dates set]CV11-10118 GHK (Ex)

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Date:Time:Place:

JOINT STIPULATION RE: PLAINTIFFS' MOTION TO CO MPELSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIES

Case 2:11-cv-10118-GHK-E Document 35-1 Filed 04/26/12 Page 1 of 43 Page ID #:333


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TABLE OF CONTENTSPage

I. PLAINTIFFS' INTRODUCTORY STATEMENTII . DEFENDANTS' INTRODUCTORY STATEMENTIII. THE DISPUTED SPECIAL INTERROGATORIES AND THEPARTIES' CONTENTIONS AND POINTS AND AUTHORITIESA.efendant Stephen Carbone's Responses To NZK ProductionsInc.'s First Set Of Special Interrogatories1 .PECIAL INTERROGATORY NOS. 1-8, 12, & 13(a )laintiffs' Contentions Re: Special InterrogatoryNos. 1-8, 12, & 135(i) Communications With California MaySubject A Defendant To Personal JurisdictionHere7(ii) Carbone May Not Unilaterally Limit HisResponses To These Special InterrogatoriesTo lNon-Public" Information About TheBachelor Series17(iii) Defendants' Argument That Carbone Did Not

"Direct" Any Communications TowardCalifornia Is Flawed8(iv) The Reporter's Privilege Does Not ApplyHere9(b) Defendants' Contentions Re: Special InterrogatoryNos. 1-8, 12, & 131(i )laintiffs' Purported Jurisdictional Discovery is GrosslyOverbroad12. SPECIAL INTERROGATORY NO. 186(a ) Plaintiffs' Contentions Re: Special InterrogatoryNo 187(b ) Defendants' Contentions Re: Special InterrogatoryNo 189B.efendant Reality Steve, LLC's Responses To NZK ProductionsInc.'s First Set Of Special Interrogatories0123456789101 1121 3141516171819202122232425262728 300280.3.doc 1V11-10118 GHK (Ex)JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COM PELSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIESCase 2:11-cv-10118-GHK-E Document 35-1 Filed 04/26/12 Page 2 of 43 Page ID #:334


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1. SPECIAL INTERROGATORY NO. 50(a) Plaintiffs' Contentions Re: Special InterrogatoryNo. 51(b ) Defendants' Contentions Re: Special InterrogatoryNo. 522. SPECIAL INTERROGATORY NO. 63(a ) Plaintiffs' Contentions Re: Special InterrogatoryNo .63(b ) Defendants' Contentions Re: Special InterrogatoryNo .643. SPECIAL INTERROGATORY NOS. 14 & 155(a) Plaintiffs' Contentions Re: Special InterrogatoryNos. 14 & 1 55(b ) Defendants' Contentions Re: Special InterrogatoryNos. 14 & 1 574. SPECIAL INTERROGATORY NOS. 21 & 227(a ) Plaintiffs' Contentions Re: Special InterrogatoryNos. 21 & 229(b ) Defendants' Contentions Re: Special InterrogatoryNos. 21 & 2291234567891 01 11 2131 41 51 6

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Pursuant to Local Rule 37-2, Plaintiffs NZK Productions Inc. and HorizonAlternative Television Inc. (collectively, "Plaintiffs") and Defendants StephenCarbone ("Carbone") and Reality Steve, LLC (collectively, "Defendants"), by andthrough their respective counsel, hereby submit this Joint Stipulation regardingPlaintiffs' motion to compel supplemental responses to the First Sets of SpecialInterrogatories on Carbone and R eality Steve, LLC.

I.PLAINTIFFS' INTRODUCTORY STATEMENT

The responses that Plaintiffs seek are highly relevant to Defendants' motionto dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personaljurisdiction which is currently set to be heard on July 23, 2012 and Defendants'objections afford them no grounds upon which to avoid providing full and completeresponses. Plaintiffs filed the Complaint in this action on December 6, 2011.Declaration of Andrew W. DeFrancis in Support of Plaintiffs in Joint Stipulation("DeFrancis Decl."), Ex. A. It alleges that Carbone and Reality Steve, LLC, whooperate the for-profit w ebsite realitysteve.com , intentionally interfered w ithcontracts between Plaintiffs and participants and/or crew members of "TheBachelor" television series. Id . at T T 11-14.

On January 20, 2012, Defendants filed a motion to dismiss for lack ofpersonal jurisdiction, arguing that they have no ties to the state of California. Whena party challenges personal jurisdiction, courts have the discretion to authorizejurisdictional discovery upon a "colorable showing" that personal jurisdiction exists.See Milan v. Feeney, 497 F. Supp. 2d 1113, 1119 (C.D. Cal. 2007). Accordingly,Plaintiffs applied ex parte for an order permitting jurisdictional discovery and theCourt, finding Plaintiffs made such a "colorable showing" that personal jurisdictionexists, granted Plaintiffs' ex parte application on January 31, 2012. DeFrancisDecl., Ex. B. The Court also continued the hearing on Defendants' motion todismiss from March 12, 2012 to May 20, 2012. Id .

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Plaintiffs immediately began propounding discovery so that they wouldreceive Defendants' responses well in advance of Plaintiffs' deadline to oppose themotion to dismiss. On February 7, 2012, Plaintiffs served First Sets of SpecialInterrogatories on D efendants. Id.., Exs. C and D.

On March 12, 2012, Plaintiffs received the Defendants' responses to the FirstSets of Special Interrogatories. Id., Exs. E and F. It quickly became apparent thatDefendants' responses were inadequate in a number of respects, including thatDefendants imposed artificial and unfounded limitations to many of their responsesand provided vague or otherwise incomplete responses to other interrogatories. Seeid., Ex. G. For example, Special Interrogatory No. 15 to Carbone requested that he"identify all communications that [he] initiated with any person who is or was aresident of California concerning www.realitysteve.com ." Id, Ex. C at p. 3. Notonly did Carbone place an extremely narrow time limitation on his response, but healso (a) claimed that he "d[id] not believe" that he made or received anycommunications, prohibiting Plaintiffs from investigating whether Carbone actuallydid so and (b) limited his response to "non-public information concerning theBachelor series," despite the fact that any communications concerning the Bachelorseries (i.e., the primary topic discussed on www.realitysteve.com ) could impactpersonal jurisdiction. See id., Ex. E at p. 14. Thus, on March 15, 2012, counsel forPlaintiffs sent counsel for Defendants a letter detailing the deficient responses andrequested a conference to discuss the responses. Id, Ex. G.

Counsel for Plaintiffs and Defendants conferred about the First Sets ofSpecial Interrogatories the following week, on March 21, 2012. Id. at I T 9. Duringthe telephone call, counsel for Defendants indicated that Defendants wouldsupplement some of their responses, but he did not indicate which. Id. WithDefendants' noticed depositions fast approaching just two weeks from that date Plaintiffs immediately began preparing a motion to compel, given that they wantedfull and complete discovery responses before those depositions. However, Local

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Rule 37 mandates that all discovery disputes shall be resolved by joint stipulations,and it further mandates at least 28 days' notice before such a dispute could be heardby the magistrate judge. Accordingly, on March 26, 2012, Plaintiffs again appliedto the Court ex parte, requesting that the Court continue the hearing on D efendants'motion to dismiss by 60 days so that they may move to compel (and receive)supplemental responses to the discovery.

Unlike Plaintiffs' prior ex parte application which went unopposed Defendants opposed this application, arguing that Plaintiffs' Special Interrogatories(and Requests for Production) were inappropriate. However, the Court foundPlaintiffs' showed good cause and granted the application on March 30, 2012,continuing the hearing on Defendants' motion to July 23, 2012. Id., Ex. H. Thenext day, counsel for Plaintiffs and counsel for Defendants agreed to take theupcoming April 4, 2012 depositions of Carbone and Reality Steve, LLC off calendarso Plaintiffs could pursue the indicated motions to com pel.

Shortly thereafter, Defendants provided supplemental responses to the FirstSets of Special Interrogatories (id, Exs. I and J); however, Defendants onlysupplemented 17 of the 25 contested Special Interrogatories, and several of theresponses remain inadequate. Compare id, Ex. G with id, Exs. I and J.

Plaintiffs anticipate that Defendants will refuse to provide supplementalresponses to a number of the interrogatories on the grounds of the reporter'sprivilege. However, as will be detailed in Plaintiffs' contentions regarding specificSpecial Interrogatories, Carbone is a party to this action and his communicationswith California residents will go "to the heart of the plaintiffs' claim," rendering theprivilege inapplicable here. Mitchell v. Superior Court, 2 7 Ca l . 3 d 2 6 8 , 2 7 9 -83(1984) .

Plaintiffs respectfully request that the Court grant their motion to compel and(1) order Carbone to provide supplemental responses to Special Interrogatory Nos.1 -8, 1 2 , 13 , and 18 and (2) order Reality Steve, LLC to provide supplemental300280 3 docVI 1 -1 0 1 1 8 GHK (Ex)JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPELSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIESCase 2:11-cv-10118-GHK-E Document 35-1 Filed 04/26/12 Page 6 of 43 Page ID #:338


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responses to Special Interrogatory Nos. 5, 6, 14, 15, 21, and 22. These SpecialInterrogatories are critical to Plaintiffs to contest Defendants' motion to dismiss, andPlaintiffs are entitled to full and com plete responses thereto.

DEFENDANTS' INTRODUCTORY STATEMENTPlaintiffs' Special Interrogatories and now Plaintiffs' Motion to Compel seek

vast amounts of information irrelevant to Defendants' pending Motion to Dismissfor Lack of Personal Jurisdiction. Plaintiffs are not entitled to this information, andtheir Motion should be denied.

On January 20, 2012, Defendants filed a Motion to Dismiss for Lack ofPersonal Jurisdiction based on Defendants' lack of sufficient minimum contactswith California and this Court's lack of jurisdiction over them. In response,Plaintiffs requested that the Court defer a ruling on Defendants' Motion and permitPlaintiffs to conduct jurisdictional discovery specifically limited to the issue ofwhether the Court may properly exercise personal jurisdiction over each Defendant.Defendants did not oppose Plaintiffs request.

Exercising its discretion, this Court issued an Order on January 31, 2012permitting Plaintiffs to conduct some limited discovery before responding toDefendants' Motion to Dismiss. The scope of that discovery was to be narrowlytargeted to obtaining the facts that enable the Court to address the issues raised inDefendants' Motion. Unfortunately, Plaintiffs essentially disregarded such Order byserving written discovery which seeks information far beyond Defendants' contactswith California. Although Plaintiffs claim to have a broad right to discoveryregarding Defendants' contacts with California, the discovery they actually servedfar exceeds that scope. For example, under the guise that they are seeking broadjurisdictional discovery, Plaintiffs are impermissibly conducting merits discoveryconcerning the identity of Defendants' confidential sources. Plaintiffs' limitedjurisdictional discovery may not be used as an excuse to conduct a fishing300280 3 docV! 1-10118 GHK (Ex)JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPE LSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIES123456789101 1121314151617181920212 2232 425262 728Case 2:11-cv-10118-GHK-E Document 35-1 Filed 04/26/12 Page 7 of 43 Page ID #:339


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expedition that bears no relation to the Court's decision on Defendants' Motion todismiss.

As demonstrated below, Plaintiffs propounded discovery to the Defendantsrequesting information not relevant at all to the Court's decision on Defendants'Motion to Dismiss. Throughout this Stipulation, Plaintiffs make and rely uponsweeping statements that they are entitled to discovery, and rest on generalassertions that the Federal Rules permit broad discovery into every aspect of anopposing party's case. Such statements about general merits discovery have nobearing on the discovery at issue here, which the Court has ordered must benarrowly limited to ascertaining the facts necessary for the Court to decideDefendants' pending Motion to Dismiss. Contrary to Plaintiffs' repeated assertions,it is not currently the task of the Court to evaluate the merits of Plaintiffs' claimsand assertions. Indeed, this case is not currently about the legitimacy of Plaintiffs'liability allegations it is about whether Plaintiffs have shown that Defendants haveminimum contacts with the State of California such that the exercise of jurisdictionover them will not offend traditional notions of fair play and substantial justice.

Furthermore, many of Plaintiffs' discovery requests are facially overbroadand improper. By way of example, Plaintiffs cite Special Interrogatory No. 15 toCarbone, which requested Carbone to identify "all communications" with residentsof California with no reasonable limitations on the type of communication, subjectmatter, or time frame. (See Plaintiffs' Introductory Statement at p. 2, 4 4 2 above.)Plaintiffs do not even limit the request to business communications. It is patentlyunreasonable for anyone to be required to recall and identify "all communications"of any kind about anything with anyone from any particular state, even California.This is particularly true in today's broadly communicative and connected society.Therefore, it is not surprising that Plaintiffs have not actually requested this Court tocompel Defendant Carbone to further supplement his response to SpecialInterrogatory No. 1 5 . (See Section III(A)(1) below.)300280.3 docV11-10118 GHK (Ex)JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPELSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIESCase 2:11-cv-10118-GHK-E Document 35-1 Filed 04/26/12 Page 8 of 43 Page ID #:340


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1 Relying on general assertions of alleged entitlement, Plaintiffs fail todemonstrate how the additional information they seek is in any way related toenabling the parties and the Court to assess Defendants' pending Motion to Dismiss.Accordingly, this Court should deny Plaintiffs' Motion to Compel further responsesand order Plaintiffs to respond to Defendants' Motion to Dismiss.

THE DISPUTED SPECIAL INTERROGATORIES ANDTHE PARTIES' CONTENTIONS AND POINTS AND AUTHORITIES

A.efendant Stephen Carbone's Responses To NZK Productions Inc.'sFirst Set Of Special Interrogatories1 . SPECIAL INTERROGATORY NOS. 1-8, 12, & 13

Special Interrogatory No. 1IDENTIFY all PERSONS who contacted YOU at

[email protected] concerning THE BACHELOR SERIESbetween January 1, 2004, and the present.Response to Special Interrogatory No. 1

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, I do not recall any names, dates or details ofpossible communications with California residents years go, but I donot believe I have made or received any communications with residentsof California about nonpublic information concerning the Bachelorseries since January 1, 2011. However, on or about October 24, 2011,

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November 16, 2011 and November 18, 2011, Defendant sent threeelectronic communications to the following persons who do NOT livein California: Jaclyn Swartz, Emily O'Brien and Casey Shteamer.However, no responsive information was received.Supplemental Response to Supplemental Interrogatory No. 1

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, and in addition to the information previouslyprovided: I do not recall any names, dates or details of possiblecommunications with California residents years ago, but I do notbelieve I have made or received any communications with residents ofCalifornia under contract of confidentiality with Plaintiff about non-public information concerning the Bachelor series since January 1,2009.

Special Interrogatory No. 2State the date(s) that each PERSON identified in response to

Special Interrogatory No. 1 contacted YO U.Response to Special Interrogatory No. 2

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, the

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interrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, on or about October 24, 2011, November 16,2011 and November 18, 2011, Defendant sent three electroniccommunications to the following persons who do NOT live inCalifornia: Jaclyn Swartz, Emily O'Brien and Casey Shteamer.How ever, no responsive information was received.

Special Interrogatory No. 3IDENTIFY all PERSONS who YOU contacted from

[email protected] concerning THE BACHELOR SERIESbetween January 1, 2004, and the present.Response to Special Interrogatory No. 3

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to D efendant's objection Co jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, I do not recall any names, dates or details ofpossible communications with California residents years go, but I donot believe I have made or received any communications with residentsof California about nonpublic information concerning the Bachelorseries since January 1, 2011. However, on or about October 24, 2011,November 16, 2011 and November 18, 2011, Defendant sent threeelectronic communications to the following persons who do NOT live

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in California: Jaclyn Swartz, Emily O'B rien and Casey Shteam er.How ever, no responsive information was received.Supplemental Response to Supplemental Interrogatory No. 3

Defendant o bjects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, and in addition to the information previouslyprovided: I do not recall any names, dates or details of possiblecommunications with California residents years ago, but I do notbelieve I have made or received any communications with residents ofCalifornia under contract of confidentiality with Plaintiff about non-public information concerning the Bachelor series since January 1,2009.

Special Interrogatory No. 4State the date(s) that YOU contacted each PERSON identified in

response to Special Interrogatory No. 3.Response to Special Interrogatory No. 4

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated to

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lead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, on or about October 24, 2011, November 16,2011 and November 18, 2011, Defendant sent three electroniccommunications to the following persons who do NOT live inCalifornia: Jaclyn Swartz, Emily O'Brien and Casey Shteamer.However, no responsive information was received.

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Special Interrogatory No. 5IDENTIFY all PERSONS who contacted YOU attwitter.com/realitysteve concerning THE BACHELOR SERIES

between January 1, 2 0 0 4, and the present.Response to Special Interrogatory No. 5

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, I do not recall any names, dates or details ofpossible communications with California residents years go, but I donot believe I have made or received any communications with residentsof California about nonpublic information concerning the Bachelorseries since January 1, 2011. However, on or about October 24, 2011,November 16, 2011 and November 18, 2011, Defendant sent threeelectronic communications to the following persons who do NOT live

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in California: Jaclyn Swartz, Emily O'Brien and C asey Shteamer.How ever, no responsive information was received.Supplemental Response to Supplemental Interrogatory No. 5

Defendant ob jects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information no t reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, and in addition to the information previouslyprovided: I do not recall any names, dates or details of possiblecommunications with California residents years ago, but I do notbelieve I have made or received any twitter communications withresidents of California about non-public information concerning theBachelor series since January 1, 2009.

Special Interrogatory No. 6State the date(s) that each PER SO N identified in response to

Special Interrogatory No. 5 contacted YOU .Response to Special Interrogatory No. 6

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections and

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without waiving same, on or about October 24, 2011, November 16,2011 and November 18, 2011, Defendant sent three electroniccommunications to the following persons who do NOT live inCalifornia: Jaclyn Swartz, Emily O'Brien and Casey Shteamer.However, no responsive information was received.

Special Interrogatory No. 7IDENTIFY all PERSONS who YOU contacted from

twitter.com/realitysteve concerning THE BACHELOR SERIESbetween January 1, 2 0 0 4, and the present.Response to Special Interrogatory No. 7

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, I do not recall any names, dates or details ofpossible communications with California residents years go, but I donot believe I have made or received any communications with residentsof California about non-public information concerning the Bachelorseries since January 1, 2011. However, on or about October 24, 2011,November 16, 2011 and November 18, 2011, Defendant sent threeelectronic communications to the following persons who do NOT livein California: Jaclyn Swartz, Emily O'Brien and Casey Shteamer.However, no responsive information was received.

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Supplemental Response to Supplemental Interrogatory No. 7Defendant objects to this Special Interrogatory because it is

overbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information no t reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, and in addition to the information previouslyprovided: I do not recall any names, dates or details of possiblecommunications with California residents years ago, but I do notbelieve I have made or received any twitter communications withresidents of California about non-public information concerning theBachelor series since January 1, 2009.

Special Interrogatory No. 8State the date(s) that YOU contacted each PERSON identified in

response to Special Interrogatory No. 7 .Response to Special Interrogatory No. 8

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, on or about October 24, 2011, November 16,2011 and November 18, 2011, Defendant sent three electronic

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communications to the following persons who do NOT live inCalifornia: Jaclyn Sw artz, Em ily O'Brien and Casey Shteam er.How ever, no responsive information was received.

Special Interrogatory No. 12IDENTIFY each PERSON from whom YOU received any

information concerning THE BACHELOR SERIES between January 1,2004, and the present.Response to Special Interrogatory No. 12

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, I do not recall any names, dates or details ofpossible communications with California residents years go, but I donot believe I have made or received any communications with residentsof California about nonpublic information concerning the Bachelorseries since January 1, 2011.Supplemental Response to Supplemental Interrogatory No. 12


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lead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, and in addition to the information previouslyprovided: I do not recall any names, dates or details of possiblecommunications with California residents years ago, but I do notbelieve I have made or received any communications with residents ofCalifornia under contract of confidentiality with Plaintiff about non-public information concerning the Bachelor series since January 1,2009.

Special Interrogatory No. 13For each of the PERSONS identified in response to Special

Interrogatory No. 12, state the date(s) each PERSON provided YOUwith information about THE BACHELOR SERIES.Response to Special Interrogatory No. 13

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, see Answer to Special Interrogatory No. 12.

(a )laintiffs' Contentions Re: Special Interrogatory Nos. 1-8,12 & 13Each of the above Special Interrogatories requests information aboutDefendant Carbone's communications concerning the Bachelor television series and123456789101 11213141516171819202122232425262728 300280.3.doc 15V11- 10 118 GHK ( Ex)JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPELSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIESCase 2:11-cv-10118-GHK-E Document 35-1 Filed 04/26/12 Page 18 of 43 Page ID #:350


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its spin-offs, the Bachelorette and Bachelor Pad (the "Bachelor Series"). As detailedabove and in the Complaint, Defendants Carbone and Reality Steve, LLC operatethe for-profit website www.realitysteve.com , which carries the tagline, "my slanted,sophomoric, and skewed view on the world of reality television." Over the pastseveral years, www.realitysteve.com's primary attraction to visitors has been its"spoilers" of the Bachelor Series i.e., revealing the participants in the BachelorSeries and the final results for the program s before those p articipants or the resultsof the programs are broadcast. Defendants allegedly obtain spoilers from variousindividuals who contact Carbone or from individuals whom Carbone contacts.Among the individuals Carbone contacted last fall were participants in the mostrecent season of the Bachelor, who had signed nondisclosure agreements withPlaintiffs concerning their participation in the program. E.g., DeFrancis Decl., Ex.A at J 15-18. Carbone promised them "the easiest money [they]'d ever make" inexchange for non-public information (and in exchange for those participantsbreaching their nondisclosure agreements with Plaintiffs), assuring them that whilehe was "very well aware of [their] contract[s]," the liquidated damages provisioncontained therein was "just a scare tactic" and that Carbone was really "[t]here tohelp [them]." See id.

Carbone clearly employs email, Facebook, Twitter, and othercommunications to obtain information for www.realitysteve.com . Accordingly,when facing Defendants' motion to dismiss, Plaintiffs directed severalinterrogatories to discover whether Carbone had obtained this information fromindividuals located in California. However, as demonstrated above, Carbonerefused to provide any response other than repeatedly claiming that he "d[oes] notbelieve that [he] ha[s] made or received any communications with residents ofCalifornia about non-public information concerning the Bachelor series sinceJanuary 1, 2009." These responses are inadequate./ / /

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(i) Communications With California May Subject ADefendant To Personal Jurisdiction Here

For purposes of personal jurisdiction, a nonresident defendant need not havebeen physically present in the forum state, so long as he otherwise made sufficientcontacts in that state, such as by mail, telephone, or electronic communication.Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) ("[I]t is an inescapablefact of modern commercial life that a substantial amount of business is transactedsolely by mail and wire communications across state lines, thus obviating the needfor physical presence within a State in which business is conducted."). Whileevidence of communications with California residents may be insufficient by itselfto subject a defendant to personal jurisdiction in California, when evidence of suchcommunications is combined with other evidence e.g., evidence that Carbone w asraised and spent most of his life in California, that www.realitysteve.com wasfounded in and initially run from California, that www.realitysteve.com was hostedby a California-based company and registered to a California address until just a fewmonths ago, that Defendants employ a California resident as their webmaster, thatDefendants are paid advertising revenue from California companies based on adsthat target California residents (among others), that Carbone frequently visitsCalifornia and updates www.realitysteve.com from the state, that Defendantsadvertise California events and give away tickets to those events, that Defendantsare currently soliciting (and receiving) donations from California residents, etc. those communications are certainly another piece of evidence that would tend toshow Carbone's activities subject him to personal jurisdiction in California.

(ii) Carbone May Not Unilaterally Limit His Responses ToThese Special Interrogatories To "Non-Public"Information About The Bachelor Series

For each of the Special Interrogatories listed above, Carbone his limited hisresponses to communications about "non-public" information concerning the

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Bachelor Series. This limitation is unacceptable. Any communications withCalifornia about the Bachelor Series could subject Carbone to jurisdiction here. Forexample, if Carbone repeatedly communicates with California residents aboutadvertising on ww w.realitysteve.com or about public information concerning theBachelor Series that drives traffic to www.realitysteve.com , those comm unicationswould certainly support Plaintiffs' argument that Carbone was properly sued inCalifornia.

(iii) Defendants' Argument That Carbone Did Not "Direct"Any Communications Toward California Is Flawed

Plaintiffs expect that Defendants will argue that Carbone's responses aresufficient and that he need not provide a list of all the individuals with whom hespoke about the Bachelor Series, given that even if the individuals are Californiaresidents, he did not know that they were California residents and therefore did notdirect his activities at California when communicating with them. This argument isa mere red herring.

First, Carbone does not represent that he was communicating with only twotypes of individuals: (1) individuals that he affirmatively knew were not Californiaresidents and (2) individuals for whom he had no knowledge about where they wereresidents. Rather, Carbone's responses are that he "do[es] not recall any names,dates or details of possible communications with California residents years ago, but[he] doles] not believe that [he] ha[s] made or received any communications withresidents of California. . . ." In other words, there could be a third category ofindividuals with whom Carbone communicated about the Bachelor series, and thatis: (3) individuals Carbone knew lived in California when he communicated withthem but (a) no longer recalls communicating with or (b) no longer recalls that theylive in California. Defendants cannot expect Plaintiffs to accept Carbone'sunsupported statement that he does not "believe" he communicated with anyCa lifornia residents e specially after Carbone indicates that he does not recall any

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names of possible communications with California residents years ago. Plaintiffsare entitled to test Defendants statements (and his mem ory).

Second, even if Carbone was unaware of where the individuals with whom hecommunicated resided, those communications could still subject him to personaljurisdiction in California. Carbone who was "very well aware" of the Bachelor'Series' participants nondisclosure agreeme nts w as for that reason certainly awa rethat Plaintiffs are located in California and that those nondisclosure agreementswere governed by California law. Accordingly, Carbone was also aware that theharm stemming from his attempts interfere with those contracts would be felt inCalifornia, which fact is sufficient to demonstrate personal jurisdiction. See, e.g.,Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257, 1259 (9th C ir.1989) (holding that there was personal jurisdiction over a defendant who "knew theinjury and harm stemming from his communications would occur in Arizona, where[plaintiff] planned to live and work").

(iv) The Reporter's Privilege Does Not Apply HereFinally, for each of these Special Interrogatories, Carbone objected that the

information sought by the interrogatories was protected by the journalistic privilege,also known as the reporter's privilege. Plaintiffs disagree with Carbone's claim.

As an initial matter, California law controls whether the identity of Carbone'ssources is protected by the reporter's privilege. Federal Rule of Evidence 501 statesthat in a civil action in federal court in which state law provides the rule of decision,"the privilege of a witness . . . shall be determined in accordance with State law."Fed. R. Evid. 501; see Star Editorial, Inc. v. United States Dist. Court, 7 F.3d 856,859 (9th Cir. 1993).

The seminal California case addressing the reporter's privilege is Mitchell v.Superior Court, 37 Cal. 3d 268 (1984). The Mitchell Court held that there is only aqualified reporter's privilege in a civil action to refuse to reveal confidential sources(or information obtained from those sources), and it explained that the scope of the300280.3.doc 19V11-10118 GHK (Ex)JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPELSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIES123456789101 11213141516171819202122232425262728Case 2:11-cv-10118-GHK-E Document 35-1 Filed 04/26/12 Page 22 of 43 Page ID #:354


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privilege depends upon a w eighing of five factors. Id . at 279. The first factor is thenature of the litigation and whether the reporter is a party: "[i]n general, disclosureis appropriate in civil cases, especially when the reporter is a party to the litigation."Id . (emphasis added). "A second consideration is the relevance of the informationsought to plaintiffs' cause of action . . . . [M]ere relevance is insufficient to compeldiscovery; disclosure should be denied unless the information goes 'to the heart ofthe plaintiffs claim." Id . at 280 (citations omitted). Third, "discovery should bedenied unless the plaintiff has exhausted all alternative sources of obtaining theneeded information." Id . at 282. "Fourth, the court should consider the importanceof protecting confidentiality in the case at hand." Id "Finally, the court mayrequire the plaintiff to m ake a prima facie showing that the alleged defamatorystatements are false before requiring disclosure." Id . at 283.

Here, a weighing of the factors certainly favors compelling Carbone toprovide supplemental responses to these Special Interrogatories. After all, not onlyis Carbone a party to the litigation, but the information is entirely relevant to showwhether Carbone knowingly interfered with Plaintiffs' contracts. And even if itdoes not go "to the heart of" the personal jurisdiction issue, it will go "to the heartof" this lawsuit as a whole. Moreover, as revealed by the fifth Mitchell factor, thereporter's privilege is generally used to shield claims of libel, no t tortiousinterference. There is no justification to use it here.

During the parties' meet and confer, counsel for Plaintiffs offered a datelimitation to January 1, 2006 so long as Carbone would answer the SpecialInterrogatories, but Carbone has not answered them properly.

For these reasons, the Court should order Carbone to supplement hisresponses to Supplemental Interrogatory Nos. 1-8, 12, and 13./ / // / // / /

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(b) Defendants' Contentions Re: Special Interrogatory Nos. 1-8,12 & 13

The Court's Order permitting Plaintiffs to conduct personal jurisdictiondiscovery is limited to discovery with respect to whether this Court should exercisepersonal jurisdiction over Defendant Stephen Carbone and Defendant Reality Steve,LLC. Federal Rule of Civil Procedure 26(b)(1) limits permissible discovery to thatwhich "is relevant to the subject matter involved in the action." Fed. R. Civ. P.26(b)(1). Therefore, the only discovery which should be relevant to Plaintiffs'current discovery requests concerns the connection, if any, between the D efendantsand the S tate of California. Nevertheless, the discovery requests to w hich Plaintiffsnow seek to compel supplemental responses involve subjects which go well beyondthe connection between the D efendants and the State of California.

(i)laintiffs' Purported Jurisdictional Discovery isGrossly OverbroadPlaintiffs currently seek discovery regarding Defendants' entire potential fanbase, as well as every communication or correspondence that has occurred in the lasteight years (since 01/01/2004) that is related thereto. For the limited purposes ofjurisdictional discovery, which pertains solely to the personal jurisdiction issue,Defendants' readers, viewers and/or followers (his fans) and persons with whomDefendants correspond, beyond the State of California, are simply not relevantatthis stage of the proceeding, if ever.

Specifically, Special Interrogatory Nos. 1, 3, 5, and 7 seek the disclosure ofevery single person with whom Mr. Carbone has corresponded about anythingrelated to the Bachelor or any of its spin-offs, regardless of where the person islocated or where the correspondence occurred. As an initial matter, theseInterrogatories are patently overbroad and burdensome, and demand that Defendantprovide information that is completely irrelevant, as the identity of those with whomDefendant spoke who are not or were not residents of California is meaningless for300280 3 doc1V11-10118GHK (Ex)JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPELSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIES123456789101 11213141516171819202122232425262728Case 2:11-cv-10118-GHK-E Document 35-1 Filed 04/26/12 Page 24 of 43 Page ID #:356


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purposes of analyzing personal jurisdiction. Narrowly-drafted jurisdictionaldiscovery would ask questions specifically about Defendants' contacts withCalifornia and what witnesses and documents could be found there. TheseInterrogatories do not ask such narrow questions.

While Plaintiffs claim in this Stipulation that they are trying to discover"whether Carbone had obtained this information from individuals located inCalifornia", Plaintiffs' Interrogatories were not drafted accordingly. If Plaintiffs aretruly seeking information solely related to Defendants' correspondence or contactswith California, they could have, and certainly should have, limited theInterrogatories in that way. By not limiting their Interrogatories to contacts andcorrespondence in California, Plaintiffs are improperly seeking to conduct meritsdiscovery where only jurisdictional discovery is permitted. Similarly, SpecialInterrogatory Nos. 2, 4, 6, and 8 seek the dates that correspond with thecommunications to be identified in Special Interrogatory Nos. 1, 3, 5, and 7. As setforth herein, Plaintiffs' unwillingness to limit the scope of such questions to thosefacts which relate to personal jurisdiction over the Defendants in California placessuch questions beyond the scope of permissible discovery.

The same problems plague Special Interrogatory Nos. 12 and 13. Rather thanmerely seeking the identities of persons from whom Defendant received informationwho are or were located in California, Plaintiffs seek the identity of ALL persons,regardless of location and regardless of whether or not such persons are or werelocated in California. The identity of persons outside of California who providedDefendant with information are not relevant at this stage of the litigation, as thatinformation is entirely unrelated to Defendant's contacts with the State ofCalifornia.

Based upon the facts that the Special Interrogatories at issue are (1) faciallyoverbroad and (2) exceed the scope of discovery allowed by this Court's Order ofJanuary 31, 2012 (limiting discovery to the issue of personal jurisdiction),

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Defendant C arbone was entitled to object and refuse to answ er the Interrogatories alltogether; but he did not. Subject to the objections and without waiving same,Defendant Carbone attempted in good faith to provide responsive informationwithin reasonable limitations in scope, such as communications since January 1,2009, because it is undisputed that Defendants published no "spoilers" at all before2009.

Furthermore, Plaintiffs err when they allege that all of Defendant Carbone'sresponses to the Special Interrogatories at issue were limited to communicationsabout "non-public" information concerning the Bachelor Series. (See SectionIII(A)(1)(a)(ii) at p. 17 above.) IN truth, Defendant Carbone's answers to SpecialInterrogatory Nos. 2, 4, 6, and 8 contain no such limitation.

Plaintiffs apparently seek to distract the Court from the focus on jurisdictionaldiscovery by referring to three previous contracts w ith former contestants (see pp.15 & 16 above) even though there is no evidence that such contracts resulted indisclosure of confidential information and, moreover, it is undisputed that thoseformer contestants were not from California a key fact not mentioned by Plaintiffsin their argument for compelling more discovery. Further, Plaintiffs make the bareallegations that Defendant Carbone supposedly was "well aware" that Plaintiffs are"located in California" and that their nondisclosure agreements "were governed byCalifornia law" without any evidence to support the claims. It is just as likely, if notmore likely, that Defendant Carbone was not knowledgeable about the corporatePlaintiffs or choice of law issues.

Plaintiffs claim dissatisfaction with Defendant Carbone's lack of recall of "allcommunications" with any and everyone about anything since January 1, 2004, andask the Court to compel Defendant Carbone to nevertheless seek, find, provide, andswear to information that is beyond his recollection so they can "test" his memory.(See Section III(A)(1)(a)(iii) at p. 18 above.) This Court should do no such thing.Plaintiffs can try to further "test" Carbone's memory during his deposition should

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they choose, but fishing by interrogatory should not be encouraged.Accordingly, Defendants' objections to Special Interrogatory Nos. 1-8, 12 &

13 are justified. The Interrogatories go beyond the Court's January 31, 2012 Ordercalling for only jurisdictional discovery. These Interrogatories have no limit as totime or subject matter and reach documents that go beyond Defendants' lack ofCalifornia contacts. Such interrogatories are in no way calculated to lead to thediscovery of admissible evidence regarding the existence of any minimum contactsbetween Defendants and the State of California. Indeed, this discovery has nothingto do with jurisdiction in California. However, rather than providing a blanketobjection to the impermissible scope of Plaintiffs' Interrogatories, Defendantprovided responses to the Interrogatories that were related to the jurisdictional issueand within the scope of permissible jurisdictional discovery. Then, after Plaintiffsarticulated that they deemed further responses necessary, Defendants worked withPlaintiffs' counsel to provide supplemental responses to the disputed Interrogatoryresponses.

As such, Defendants have been, and continue to be, willing to respond to alldiscovery requests within the proper scope of this Court's Order. What Defendantsobject to is being forced to submit harassing and overbroad discovery that the Courtdid not authorize.

(ii) Plaintiffs Exaggerate Defendants' Contacts WithCalifornia

Plaintiffs attempt to show that they are entitled to information regarding all ofDefendants' communications (with residents of California AND everywhere else)because those communications, when coupled with "other evidence" may subjectDefendants to jurisdiction in California. However, Plaintiffs' broad assertions andstatements related thereto grossly exaggerate the "other evidence" stated therein.

For example, Plaintiffs point to the fact that Defendants receive advertisingrevenue based on ads that allegedly target California residents. Initially, it must be

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noted that the advertisements that run on www.realitysteve.com are not directed atCalifornia residents, but are instead directed at a more general audience. Websiteadvertisements that target a general audience are not sufficient to subject the ownerof the w ebsite to jurisdiction in C alifornia. See Mavrix Photo, Inc. v. MoguldomMedia Group LLC, No. CV 10-9351 RSWL, 2011 WL 1134187, at *2 (C.D. Cal.March 28, 2011). However, even assuming, arguendo, that a handful of thewebsite's advertisements relate to California residents, that fact remains insufficientto confer personal jurisdiction over the Defendan ts. Id. Additionally, any advertisingconducted on www.realitysteve.com is created and controlled by third-party entities,not the Defendants. Thus, any advertisement that purportedly targets residents ofCalifornia is again insufficient to subject Defendants to personal jurisdiction in thisState. See Spacey v. Burgar, 207 F. Supp. 2d 1037, 1044 (C.D. Cal. 2001).

(iii) The Reporter's Privilege Does ApplyPlaintiffs seek information regarding the identity of Defendants' confidential

sources. Not only is this information completely unrelated to the issue of personaljurisdiction and Defendants' contacts with the State of California, but theinformation is also covered and protected by the Reporter's Privilege.

A reporter's confidential source is afforded vigorous protections by the FirstAmendment, and these protections shall only be abrogated in "the most exceptionalcases." Zerilti v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981). In an ordinary civilaction like the instant case, where a litigant pits its monetary interest against theFirst Amendment's guarantee of a free press, the balance tips sharply againstcompelled disclosure of a reporter's confidential source. See Zerilli, 656 F.2d at 712(in civil litigation, compelled disclosure of a confidential source is permitted only in"the most exceptional cases").

This is not a "most exceptional case" that justifies compelled disclosure of areporter's confidential source. To meet this standard, Plaintiffs must establish thatthe information is: (1) "highly material and relevant, necessary or critical to the

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maintenance of [its] claim;' and (2) "not obtainable from other availablesources.' See, e.g., Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995) (quoting In rePetroleum Prods. Antitrust Litig., 680 F.2d 5 , 7 (2d. Cir. 1982)); see also Zerilli,656 F.2d at 713 (providing that the journalist's privilege should be overridden onlywhere the information sought goes to "the heart of the matter" of the plaintiffsclaim) (quotation marks & citation omitted). Plaintiffs' portion of the JointStipulation makes clear that Plaintiffs cannot satisfy any of these criteria for theirclaim for relief-- let alone all of these criteria, as the law requires. See Shoen, 48F.3d at 416 (noting that the test for compelled disclosure of a confidential source ina civil case is "conjunctive"). Even Plaintiffs admit that their request forDefendants' confidential sources goes to the heart of the merits of this case, ratherthan to the issue of whether there is personal jurisdiction over the Defendants inCalifornia. Indeed, the Mitchell case cited by Plaintiffs did not involve a disputeabout personal jurisdiction at all.

Because Plaintiffs cannot establish that this is the "exceptional case" thatwarrants intrusion into the important First Amendment values that underlie theReporters' Privilege, see Zerilli, 656 F.2d at 712 (emphasizing "the preferredposition of the First Amendment and the importance of a vigorous press"),Defendants should not be compelled to disclose the identities of their confidentialsources, especially not at this stage of the litigation.

2. SPECIAL INTERROGATORY NO. 18Special Interrogatory No. 18

IDENTIFY all trips that YOU made to California betweenJanuary 1, 2004, and the present.Response to Special Interrogatory No. 18

Defendant objects to this Special Interrogatory because it isoverbroad and unduly burdensome. Subject to these objections and

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without waiving same, Defendant visited California approximately five(5) six (6) times per year from January 1, 2006 through the present.Supplemental Response to Supplemental Interrogatory No. 18

Defendant objects to this Special Interrogatory because it isoverbroad and unduly burdensome. Subject to these objections andwithout waiving same, and in addition to the information previouslyprovided: Defendant usually stays with his sister in Huntington Beach.On one occasion in April, 2011, Defendant stayed at the Standard Hotelin Los A ngeles for one night.

(a)laintiffs' Contentions Re: Special Interrogatory No. 18"Identify" is defined in the Special Interrogatories for events and occurrencesto require stating the event or occurrence's date, among other things. In response toSpecial Interrogatory No. 18, which requests that Carbone identify all trips he madeto California between January 1, 2004 and the present, however, Carbone initiallyresponded only that he "visited C alifornia approximately five (5) six (6) times peryear from January 1, 2006 through the present." In other words, Carbone failed toprovide specific dates of each visit.

Counsel for Plaintiffs indicated this deficiency in his March 15, 2012 meetand confer letter to counsel for Defendants, and counsel for Plaintiffs and counselfor Defendants discussed this issue during their meet and confer telephone call onMarch 21, 2012. This was among the responses that Carbone supplemented onApril 9, 2012; however, in his supplemental response, Carbone does not add anyspecific dates; instead,'he supplements to add only that he "usually stays with hissister in Huntington Beach" when visiting California and loin one occasion inApril, 2011, Defendant stayed at the Standard Hotel in Los Angeles for one night."

Plaintiffs respectfully request that the Court order Carbone to furthersupplement his response to Special Interrogatory No. 18 to indicate the dates he was300280 3 doc7v 1- 1 01 I 8 GHK (Ex)JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPELSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIES123456789101 1121 3141516171819202122232425262728



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in California between January 1, 2006 and the present. During the Parties' meet andconfer call, counsel for Defendants claimed that this information was irrelevantgiven that Carbone's trips to California were personal in nature. In fact, in responseto Special Interrogatory No. 20, Carbone says as much, alleging that "the trips toCalifornia were personal and not for business." However, Carbone's use of theword "personal" is disingenuous, and although some of the trips may have beenpersonal in nature, Carbone used many of the trips to promotewww.realitysteve.com and otherwise drive traffic to the site.

Among other things, on March 31, 2011, Carbone posted a video in which hediscussed the then-upcoming Reality Rocks Expo at the Los Angeles ConventionCenter on April 9 and 10, 2011, and he then proceeded to give away ten (10) freepasses to the exposition. DeFrancis Decl., Ex. K. During that video, Carbone alsoindicated that he would be attending the exposition himself. Id. Attending theReality Rocks Expo (and giving away tickets to it) cannot be considered personal innature.

Similarly, on March 31, 2012 one year after posting the video advertisingthe Reality Rocks E xpo Carbone attended the Chris4Life Dream D ate Benefit atthe SLS Hotel in Beverly Hills, California. See id., Ex. L. A t the Chris4Life benefit,dates with a number former Bachelor and Bachelorette participants were auctionedoff for charity. Carbone promoted this event on www.realitysteve.com on severaloccasions before the event, and he mentioned it several times after the event, aswell. In fact, during his April 11, 2012 webcast, Carbone's readers asked him aboutthe Chris4Life benefit. Id., Ex. M. Clearly, this event also drove visitors to his siteand cannot be considered solely personal in nature.

Finally, Carbone apparently updates www.realitysteve.com from C alifornia,even recording video blogs while in the state. See, e.g., id, Ex. N. These posts andvideo blogs are the very nature of Carbone's business, generating business to hiswebsite so that he increases page views and advertising clicks. Without specific

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dates of Carbone's trips to California, Plaintiffs are unable to fully investigate whatother updates Carbone made to w ww .realitysteve.com and what other activities heparticipated in while in California.

During the parties' meet and confer, counsel for Plaintiffs indicated that it didnot need additional details concerning Carbone's trips to California other than thedates that he was in the state. However, Carbone has not provided such a listing.

For these reasons, the Court should order Carbone to supplement his responseto Supplemental Interrogatory No. 18 and provide specific dates for each of his tripsto California from January 1, 2004, through the p resent.

(b ) Defendants' Contentions Re: Special Interrogatory No. 18Plaintiffs have spent the majority of this Stipulation arguing that they areentitled to information about every contact the Defendants have had with California.In response to Special Interrogatory No. 18, Defendant Carbone provided Plaintiffswith information about the frequency with which Defendant has travelled toCalifornia over the last few years. This is precisely the information that Plaintiffsdesire. The fact that Defendant cannot remember precise dates on which such tripsoccurred does not render the response insufficient or nonresponsive in any way. Ifthe information that is sought by interrogatory is not in the possession of the partyserved or of its agent, it is sufficient to answer with an indication that theinformation is unavailable. See Bunnell v. Sup. Ct., Cal.App.2d 720, 724 (1967).

Defendant has provided Plaintiffs with the full extent of the information in hispossession, and despite any belief Plaintiffs may have regarding the existence ofadditional information, no such information is available. If Plaintiffs are trulydissatisfied with Defendant Carbone's lack of additional recollection about his tripsto California over the years to visit family members or otherwise, they can attemptto probe further during his deposition father than request this Court to compelfurther details in interrogatory answers that Defendant Carbone simply cannotrecall.

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B.efendant Reality Steve, LLC's Responses To NZK Productions Inc.'sFirst Set Of Special Interrogatories1 . SPECIAL INTERROGATORY NO. 5

Special Interrogatory No. 5IDENTIFY all agreements of any kind entered into between

January 1, 2004, and the present concerning advertising onwww.realitysteve.com .Response to Special Interrogatory No. 5

Defendant objects to this Special Interrogatory on the groundsthat it is overly broad, vague and unduly burdensome. Subject to theforegoing objections and without waiving same, Reality Steve hasentered into agreements with the following companies concerningadvertising on the website: Google Adsense, Value Click, Lijit,CPMonly, Underground Media, Adtegrity, Vibrant, andGunggo.Supplemental Response to Supplemental Interrogatory No. 5

Defendant objects to this Special Interrogatory on the groundsthat it is overly broad, vague and unduly burdensome. Subject to theforegoing objections and without waiving same, and in addition to theinformation previously provided:Google Adsensewww.google.com/adsenseValue Clickwww.valueclick.comDavid [email protected]

/ / /

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Brady [email protected]

CPM Onlycpmonly.comRobert [email protected] WelchLiz.welch@adtegrity.comVibrantwww.vibrantmedia.cornGunggowww.gunggo.comDaniel Yuw [email protected] [email protected] Mediawww.underdogmedia.cornLizzy [email protected] [email protected](a )laintiffs' Contentions Re: Special Interrogatory No. 5"Identify" is defined in the Special Interrogatories for documents andtransactions to require stating the document or transaction's date, among other123456789101 1121 314151617181920212 2232425262728 300280.3.doc 31V11-1011 8 GHK (Ex)JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPELSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIESCase 2:11-cv-10118-GHK-E Document 35-1 Filed 04/26/12 Page 34 of 43 Page ID #:366


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things. As demonstrated above, in its original response to Special Interrogatory No.5 which asked Reality Steve, LLC to identify all agreements concerningadvertising on www.realitysteve.com it provided a list of eight compan ies withwhom it had such agreements. However, it did not provide the contact informationfor those companies or the dates that it entered into those agreements. In itssupplemental response, Reality Steve, LLC provided contact information, but it hasstill yet to provide dates.

Several of the companies with who m Reality Steve, LLC entered intoadvertising agreements are California companies and at least one of the companiesruns advertising targeted at California visitors to www.realitysteve.com .Accordingly, this information will be highly relevant on Defendants' motion todismiss. Plaintiffs are entitled to know when these agreements were made, and theCourt should order Reality Steve, LLC to supplement its response to SupplementalInterrogatory No. 5 to include the dates that Reality Steve, LLC entered intoagreements with each of the companies identified in its supplemental response.

(b ) Defendants' Contentions Re: Special Interrogatory No. 5Defendants have provided Plaintiffs with the full extent of the information in

their possession. As noted above, if the information that is sought by interrogatory isnot in the possession of the party served or of its agent, it is sufficient to answer withan indication that the information is unavailable. See Bunnell v. Sup. Ct., Cal.App.2d720, 724 (1967). Defendant has provided Plaintiffs with the full extent of theinformation in his possession. Defendant does not know the precise dates on whichthe eight identified agreements were entered into, and despite any belief Plaintiffsmay have regarding the existence of additional information, no such information isavailable.

However, if the Court is of the view that the approximate dates on which theeight identified agreements were entered into is relevant to the jurisdictional issue/ / /

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before the Court, Defendant will further supplement his response to theInterrogatory with such approximate dates to the best of his recollection.

2. SPECIAL INTERROGATORY NO. 6Special Interrogatory No. 6

IDENTIFY all PERSONS who have purchased advertising onwww.realityseteve.com between January 1, 2004, and the present.Response to Special Interrogatory No. 6

There have been a small number of independent advertisers thathave purchased advertising on the website. The advertising purchasedwas only for a two-week period, and none of the advertisers were inCalifornia.Supplemental Response to Supplemental Interrogatory No. 6

In addition to the information previously provided: see Answerto Special Interrogatory N o. 5.(a ) Plaintiffs' Contentions Re: Special Interrogatory No. 6

In addition to agreements concerning advertising, Plaintiffs also endeavoredto learn about which individuals and companies had purchased advertising onwww.realitysteve.com . In its original response to Special Interrogatory No. 6,Reality Steve, LLC merely responded that "[t]here have been a small number ofindependent advertisers that have purchased advertising on the website. Theadvertising purchased was only for a two-week period, and none of the advertiserswere in California." After meeting and conferring on the issue, Reality Steve, LLCsupplemented its response as follows: "[i]n addition to the information previouslyprovided: see Answer to Special Interrogatory No. 5."

That said, none of the companies listed in Reality Steve, LLC's response toSpecial Interrogatory No. 5 could be characterized as "independent advertisers thathave purchased advertising," so this supplemental response adds nothing to SpecialInterrogatory No. 6. Regardless, as with other responses, Plaintiffs are entitled to

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full and complete responses, and it is not for the defendant in a lawsuit to determinewhether the information that is sought is relevant. The Federal Rules provide forbroad discovery, and according to Rule 26(b)(1), "[p]arties may obtain discoveryregarding any nonprivileged matter that is relevant to any party's claim or defense."Even on the limited scope of jurisdictional discovery, the identity of advertisers iscertainly relevant: after all, even if those advertisers are not "in California" (perReality Steve, LLC's original response, which is vague in and of itself), Plaintiffsare entitled to investigate whether those companies target California residents, havepresences in California, or any myriad of other questions.

Accordingly, the Court should order Reality Steve, LLC to supplement itsresponse to Supplemental Interrogatory No. 6 to include the names and contactinformation for each of the parties that purchased advertising on Reality Steve, LLC.

(b ) Defendants' Contentions Re: Special Interrogatory No. 6Plaintiffs seek information related to ALL purchasers of advertising on

www.realitysteve.com, not just those purchasers located in California. As set forthmore fully in Section III(A)(b) above, the information sought in SpecialInterrogatory No. 6 far exceeds that which is permitted by the Court's Order forlimited jurisdictional discovery. By stating that Defendants had not sold advertisingto persons located in California, Defendants answered the portion of theInterrogatory that was within the scope of the permitted jurisdictional discovery.Any advertising purchased by persons located outside of California is not relevant atthis stage of the litigation.

Additionally, assuming, arguendo, that advertising was purchased b yCalifornia residents, that fact would still be insufficient to subject the Defendants tojurisdiction in California. See Spacey, 207 F. Supp. 2d at 1044./ / // / // / /

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3 . SPECIAL INTERROGATORY NOS. 14 & 15Special Interrogatory No. 14:

State the monthly num ber of visits to ww w.realitysteve.com byPERSONS located in California between January 1, 2004, and thepresent.Response to Special Interrogatory No. 14

Defendant objects to this Special Interrogatory on the groundsthat it is unduly burdensome and not calculated to lead to the discoveryof admissible evidence. Subject to the foregoing and without waivingsame, I do not know. The website has approximately 2,000,000 visitorsper month, and the email addresses of the visitors do not indicate wherethe visitors live.

Special Interrogatory No. 15:State the monthly number of visits to www.realitysteve.com by

computers located in California between January 1, 2004, and thepresent.Response to Special Interrogatory No. 15

Defendant objects to this Special Interrogatory on the groundsthat it is unduly burdensome and not calculated to lead to the discoveryof admissible evidence. Subject to the foregoing and without waivingsame, I do not know. The email address of each person who visits thewebsite does not indicate the location of each person's computer.

(a ) Plaintiffs' Contentions Re: Special Interrogatory Nos. 14 &15

Among all of the Special Interrogatories propounded on both Carbone andReality Steve, LLC, Special Interrogatory Nos. 14 and 15 are among the most highly300280 3 doc3 5V 11-10118 GHK (Ex)JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COM PELSUPPLEMENTAL RESPONSES TO FIRST SETS SPECIAL INTERROGATORIES123456789101 1121 3141516171819202122232425262728



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relevant. These interrogatories request traffic to www.realitysteve.com byCalifornia residents. Reality Steve, LLC responded to Special Interrogatory No. 14by stating that "[t]he website has approximately 2,000,000 visitors per month, andthe email addresses of the visitors do not indicate where the visitors live." Itresponded to Special Interrogatory No. 15 by stating that "Nile email address ofeach person who visits the website does not indicate the location of each person'scomputer." Reality Steve, LLC provided no supplemental response to either ofthese interrogatories after the parties' meet and confer.

That said, in response to Plaintiffs' Request for Production w hich may besubject to their own joint stipulation concerning a m otion to compel Reality Steve,LLC provided a single-page printout from Google Analytics. Id., Ex. 0. Thatprintout shows links to a number of other statistics in the left sidebar, includingdemographics and behavior. See id. However, Reality Steve, LLC neither producedany of this information, nor did it consult this information when responding to theFirst Set of Special Interrogatories. According to Google's Analytics help page,websites that employ the Google Analytics program are able to determine not onlythe number of monthly visitors to their website (which Reality Steve, LLCestimated), but also the city from which each of those visitors accessed the site(which Reality Steve, LLC indicated it could not determine). Id., Ex. P. Counselfor Plaintiffs explained this to counsel for Defendants during the Parties' meet andconfer call regarding the Requests for Production, but counsel for Plaintiffs has yetto hear a response on the issue.

For this reason, the Court should order Reality Steve, LLC to supplement itsresponse to Supplemental Interrogatory Nos. 14 and 15 to include specificinformation concerning visitors to www.realitysteve.com from C alifornia./ / // / // / /

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(b ) Defendants' Contentions Re: Special Interrogatory Nos. 14 &15

Although Plaintiffs claim confidence in their technological ability todetermine the physical location from which people visit www.realityseve.com ,Defendants are not aware of any way in which to accomplish same. Defendants haveprovided Plaintiffs will all of the information regarding the website's visitors that isknown to them. Even assuming, arguendo, that Defendants were able to locate suchinformation, the fact that the website's visitors were located in California at the timethey visited the website would not subject Defendants to jurisdiction in this State.See Autogenomics, Inc. v. Oxford Gene Technology, Ltd., No. SACV 07-846-MRP,2008 WL 7071464, at *6 (C.D. Cal Jan. 17, 2008).

4. SPECIAL INTERROGATORY NOS. 21 & 22Special Interrogatory No. 21:

IDENTIFY each PERSON from whom YOU received anyinformation concerning THE BACHELOR SERIES between January 1,2004, and the present.Response to Special Interrogatory No. 21

Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, I do not recall any names, dates or details ofpossible communications with California residents years go, but I donot believe I have made or received any communications with residents

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of California about nonpublic information concerning the Bachelorseries since January 1, 2011.Supplemental Response to Supplemental Interrogatory No. 21Defendant objects to this Special Interrogatory because it isoverbroad, unduly burdensome, and not reasonably limited in scope toinformation that is relevant to Defendant's objection to jurisdiction inCalifornia. Defendant further objects because as stated, theinterrogatory seeks irrelevant information not reasonably calculated tolead to admissible evidence and information that is proprietary andsubject to the journalistic privilege. Subject to these objections andwithout waiving same, and in addition to the information previouslyprovided: I do not recall any names, dates or details of possiblecommunications with California residents years ago, but I do notbelieve I have made or received any communications with residents ofCalifornia under contract of confidentiality with Plaintiff about non-public information concerning the Bachelor series since January 1,2009.

Special Interrogatory No. 22:For each of the PERSONS identified in response to Special

Interrogatory No. 21, state the date(s) that each PERSON providedYOU with information about THE BACHELOR SERIES.Response to Special Interrogatory No. 22


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8/2/2019 Joint Stipulation: Compel Supplem

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Joint Stipulation: Compel Supplemental Responses to 1st Interrogatories

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