Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 1 of 19 Page ID #:182 1 2 3 4 5 6 7 8 AARON J. MOSS (SBN 190625) AMoss@ggfirm.com JOSHUA M. GELLER (SBN 295412) JGeller@ggfirm.com JILLIAN A. BERK (SBN 328439) JBerk@ggfirm.com GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 2049 Century Park East, Suite 2600 Los Angeles, California 90067 Telephone: 310.553.3610 Fax: 310.553.0687 Attorneys for Defendant DISCOVERY COMMUNICATIONS, LLC 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 JERRY A. SPOLAR, an individual; TONNY JILL WILLIAMSON, an individual, Plaintiff, v. DISCOVERY COMMUNICATIONS, LLC, a Delaware limited liability company; UNREALISTIC IDEAS, LLC, a Delaware limited liability company; PIECE OF WORK PRODUCTIONS, LLC, a California limited liability company; ARCHIE GIPS, an individual; WHITNY BRAUN, an individual; JAMES BRAUN, an individual; and DOES 1 through 25, Case No. 2:20-cv-08837-SVW-MAA DISCOVERY’S OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE INJUNCTION [Declarations of Howard Swartz, Laurie Goldberg and Donna D’Alessandro filed concurrently] Defendants. 23 24 25 26 27 28 83891-00023/3869595.7 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 2 of 19 Page ID #:183 1 TABLE OF CONTENTS 2 3 4 I. II. 5 6 7 III. 8 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 9 10 11 IV. 12 13 14 15 16 17 V. Page INTRODUCTION ........................................................................................... 1 RELEVANT FACTUAL BACKGROUND ................................................... 2 A. Unrealistic Ideas Pitches the Feature to Discovery. ............................. 2 B. Plaintiffs Learn of the Feature, Wait Nine Months, And Then Assert Unmeritorious Claims for Trade Secret Misappropriation........ 4 PLAINTIFFS SEEK AN UNCONSTITUTIONAL PRIOR RESTRAINT OF DISCOVERY’S SPEECH ................................................. 5 A. Prior Restraints Like the Injunction Plaintiffs Seek Are Extremely Disfavored. .......................................................................... 5 B. Prior Restraints on a Matter of Public Interest Are Impermissible Even in the Trade Secret Context. ........................................................ 7 PLAINTIFFS CANNOT MEET THE STANDARD FOR A PRELIMINARY INJUNCTION ..................................................................... 9 A. Plaintiffs Cannot Show a Likelihood of Success on the Merits as to Discovery. ......................................................................................... 9 B. Plaintiffs Will Not Suffer Irreparable Harm. ...................................... 10 C. The Balance of Hardships Favors Discovery. .................................... 12 D. The Public Interest Weighs Against the Injunction. ........................... 13 E. If the Court Were to Grant an Injunction, Plaintiffs Must Post a Substantial Bond. ................................................................................ 14 CONCLUSION ............................................................................................. 15 18 19 20 21 22 23 24 25 26 27 28 83891-00023/3869595.7 i DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 3 of 19 Page ID #:184 1 TABLE OF AUTHORITIES 2 CASES 4 Alexander v. United States, 509 U.S. 544 (1993) .............................................................................................. 5 5 6 Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ................................................................................................ 5 7 Bombardier Inc. v. Mitsubishi Aircraft Corp., 383 F. Supp. 3d 1169 (W.D. Wash. 2019) ............................................................ 9 8 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP Page 3 9 Calence, LLC v. Dimension Data Holdings, PLC, 222 F. App’x 563 (9th Cir. 2007) ........................................................................ 11 10 CBS, Inc. v. Davis, 510 U.S. 1315 (1994) ........................................................................................ 5, 7 11 12 Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir. 1985) ................................................................................ 10 13 Cuviello v. City of Vallejo, 944 F.3d 816 (9th Cir. 2019) ................................................................................. 5 14 15 Elrod v. Burns, 427 U.S. 347 (1976) .............................................................................................. 2 16 Ford Motor Co. v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999) .................................................................. 8 17 18 Frank’s GMC Truck Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100 (3d Cir. 1988) ................................................................................ 14 19 Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) ............................................................................... 10 20 21 Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ............................................................................. 13 22 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ............................................................................... 13 23 24 Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974) (White, J., concurring) ......................................................... 5 25 Nano-Second Tech. Co. v. Dynaflex Int’l, 2011 WL 4502025 (C.D. Cal. Sept. 28, 2011) .................................................... 11 26 27 National Abortion Federation v. Center for Medical Progress, 2016 WL 454082 (N.D. Cal. Feb. 5, 2016) ........................................................... 7 28 83891-00023/3869595.7 ii DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 4 of 19 Page ID #:185 1 2 3 4 2049 Century Park East, Suite 2600 Los Angeles, California 90067 Page Navigation Holdings, LLC v. Molavi, 445 F. Supp. 3d 69 (N.D. Cal. 2020)..................................................................... 9 5 Near v. Minnesota, 283 U.S. 697 (1931) .............................................................................................. 5 6 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) .......................................................................................... 1, 5 7 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP TABLE OF AUTHORITIES (continued) 8 New York Times Co. v. United States, 403 U.S. 713 (1971) .......................................................................................... 5, 6 9 New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1071 (C.D. Cal. 2003) ............................................................. 6, 8 10 11 Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374 (9th Cir. 1985) ............................................................................. 10 12 Playmakers LLC v. ESPN, Inc., 376 F.3d 894 (9th Cir. 2004) ............................................................................... 13 13 14 Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996) ................................................................................... 8 15 Puma SE v. Forever 21, Inc., 2017 WL 4771003 (C.D. Cal. June 2, 2017)....................................................... 11 16 17 Religious Technology Center v. Lerma, 897 F. Supp. 260 (E.D. Va. 1995) ......................................................................... 6 18 San Antonio Cmty. Hosp. v. S. California Dist. Council of Carpenters, 125 F.3d 1230 (9th Cir. 1997) ............................................................................... 6 19 20 TDBBS LLC v. Ethical Prod. Inc., 2019 WL 979944 (D. Ariz. Feb. 28, 2019) ......................................................... 11 21 Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244 (11th Cir. 2016) ........................................................................... 10 22 23 24 25 STATUTES Defend Trade Secrets Act, 18 U.S.C. § 1836 ............................................................. 9 Federal Rule of Civil Procedure 65(c) ...................................................................... 14 26 27 28 83891-00023/3869595.7 iii DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 5 of 19 Page ID #:186 MEMORANDUM OF POINTS AND AUTHORITIES 1 2 I. Plaintiffs’ ex parte application for temporary restraining order (“TRO”) seeks 3 4 a prior restraint to prevent defendant Discovery Communications, LLC 5 (“Discovery”) from airing a television documentary about the last known 6 photograph of Abraham Lincoln. The program is scheduled to premiere on Sunday 7 October 4, 2020—only five days from today. 1 Prior restraints are the “most serious and the least tolerable infringement on 8 9 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP INTRODUCTION First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 10 (1976). They have been uniformly rejected by the Supreme Court, even in cases 11 involving national security and in cases in which the information to be published 12 has been obtained illegally. Plaintiffs Jerry Spolar and Tonny Williamson 13 (“Plaintiffs”) seek this presumptively unconstitutional remedy against Discovery in 14 order to enforce a non-disclosure agreement to which Discovery is not even a party. 15 Discovery has no relationship with Plaintiffs, contractual or otherwise, and 16 Plaintiffs have presented no evidence that Discovery obtained any information 17 constituting Plaintiffs’ purported “trade secrets,” let alone that Discovery 18 knowingly obtained such information through improper means. Plaintiffs do not cite a single case in which a prior restraint has been granted 19 20 under these circumstances. To the contrary, courts have routinely denied as 21 unconstitutional injunctions against publishers who have received information from 22 a source in alleged violation of that party’s confidentiality agreement. Plaintiffs’ 23 24 25 26 27 28 Discovery first learned of Plaintiffs’ TRO application and supporting papers after 5 p.m. Pacific time on September 28, 2020, when Plaintiffs emailed a courtesy copy of their papers to Discovery’s corporate counsel and notified Discovery that, pursuant to this Court’s Standing Order, opposing papers must be filed “not later than 3:00 p.m. on the first business day succeeding the day the ex parte was served.” Dkt. 9. While the Court later issued an order giving Discovery until September 30 to file its opposition (Dkt. 13), Discovery is nevertheless still filing these papers on September 29 in light of the short time period until its program is scheduled to air and the critical constitutional issues involved. 1 83891-00023/3869595.7 1 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 6 of 19 Page ID #:187 1 mere act of denominating such information as “trade secrets” does not constitute 2 grounds for issuing a prior restraint. Moreover, Plaintiffs do not even attempt to show that any harm they will 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 3 4 allegedly suffer as a result of Discovery’s broadcast is not compensable in damages. 5 Plaintiffs assert amorphous harm based on a lack of “credit” and to protect the 6 value of a potential “competing documentary” about the same subject matter as 7 Discovery’s. See TRO, Dkt. No. 8 at *15:11–15 (alleging that defendants “created a 8 historically and factually inaccurate documentary and wrongly eliminated 9 Plaintiff’s ability to effect and control the story”). These alleged harms, if proven, 10 are easily remedied through monetary damages or, better yet, through the 11 publication of Plaintiffs’ own program which, tellingly, they have never produced 12 despite allegedly studying the Lincoln photo for over two decades. By contrast, any injunction preventing the release of the documentary, no 13 14 matter how short, would irreparably harm Discovery by infringing its First 15 Amendment rights. “The loss of First Amendment freedoms, for even minimal 16 periods of time, unquestionably constitutes irreparable injury for purposes of the 17 issuance of a preliminary injunction.” Elrod v. Burns, 427 U.S. 347, 373 (1976). 18 Here, Plaintiffs seek to enjoin Discovery “pending the resolution of the action” 19 from “[b]roadcasting in any medium any documentary productions” about the 20 Lincoln photo at issue. If Discovery were required to remove its previously 21 scheduled and heavily advertised primetime programming, it will not only lose 22 revenue, but its audience will be deprived of access to a documentary that is 23 undoubtedly in the public interest. 24 II. RELEVANT FACTUAL BACKGROUND 25 A. Unrealistic Ideas Pitches the Feature to Discovery. 26 In the summer of 2019, the production company Unrealistic Ideas, LLC 27 (“Unrealistic”) pitched a feature-length documentary to Discovery concerning an 28 ambrotype photograph of President Abraham Lincoln, believed to be the last ever 83891-00023/3869595.7 2 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 7 of 19 Page ID #:188 1 photograph taken of him. At various pitch meetings in this time period, 2 representatives of Unrealistic informed Discovery’s Senior Vice-President of 3 Production & Development for Documentaries & Specials, Howard Swartz, about 4 the efforts that Unrealistic had undertaken to independently investigate and 5 authenticate the photograph and to determine whether it was taken before or after 6 Lincoln’s death. These efforts included work by Whitny Braun, a researcher and 7 authenticator who specializes in investigating items of historical significance. 8 Declaration of Howard Swartz (“Swartz Decl.”), ¶¶2–3. 9 In light of the historical and public significance of the photograph, Discovery 10 entered into a deal with Unrealistic to develop and distribute a documentary feature, 11 to be aired under the title Undiscovered: The Lost Lincoln (the “Feature”). Swartz 12 Decl., ¶4. At the time Discovery entered into that deal, Discovery was not aware of 13 any claims of competing ownership in any intellectual property or source material 14 associated with the Feature. 2 Discovery was informed and understood that the 15 information contained in the Feature had been independently developed and vetted 16 by Unrealistic. Indeed, Unrealistic represented and warranted that it had all rights 17 in and to the Feature, and that production and distribution of the Feature would not 18 violate any third party’s rights (including confidentiality rights). Swartz Decl., ¶5. 19 After Discovery entered into its deal in late summer 2019, Unrealistic 20 proceeded to produce the Feature. The Feature is set to air on October 4, 2020 on 21 the Discovery Channel’s Sunday evening primetime slot. The Feature is designed 22 to be the first in an anthology series of various investigative documentaries of 23 historical significance produced under Discovery’s new Undiscovered banner. 24 Swartz Decl., ¶7. 25 26 27 28 While Plaintiffs claim in their TRO application that the “Lincoln Ambrotype is owned by Plaintiffs” (TRO, Dkt. 8 at *12 n.1), materials produced in connection with their application indicate that ownership of the physical photograph is apparently the subject of litigation in Illinois. Dkt. 8-2 (attaching deposition transcript excerpts from Davis v. Spolar, No. 19-CH-6). 2 83891-00023/3869595.7 3 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 8 of 19 Page ID #:189 B. 1 Unmeritorious Claims for Trade Secret Misappropriation. 2 On January 21, 2020, Plaintiffs sent a demand letter to W. Braun and 3 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP Plaintiffs Learn of the Feature, Wait Nine Months, And Then Assert 4 provided a courtesy copy to Discovery. In that letter, Plaintiffs asserted that W. 5 Braun was subject to a non-disclosure agreement that restricted the use of “all non- 6 public, proprietary or confidential information relating to [the Ambrotype].” 7 Compl., Ex. B. Plaintiffs also stated: “We have learned through sworn testimony 8 that [Plaintiffs’] Confidential Information has been disclosed for purposes of 9 filming a production that we understand is to be aired on the Discovery Channel.” 10 11 Id. Despite Plaintiffs’ claims, Discovery understood and believed (based both on 12 its many conversations with Unrealistic’s representatives and the representations 13 and warranties included in their contractual agreement) that nothing in the Feature 14 infringed on any of Plaintiffs’ rights or used Plaintiffs’ confidential information. 15 Swartz Decl., ¶5. Discovery is not a party to any non-disclosure or other 16 confidentiality agreement with Plaintiffs. Swartz Decl., ¶6. Moreover, Plaintiffs 17 did not assert any claims against Discovery in that January 21, 2020 demand letter. 18 Several months later, on April 3, 2020, Plaintiffs (through their attorney) 19 reached out to a Discovery employee by email. In that email, Plaintiffs reiterated 20 that they had once again “learned” of “a production regarding the ambrotype” that 21 was “set to air on the Discovery Channel.” Compl., Ex. C. Again, Plaintiffs did 22 not assert any claims against Discovery. Id. 23 Suddenly, after months of silence, Plaintiffs filed the instant suit on 24 September 25, 2020. On September 28, 2020, six days before the Feature is 25 scheduled to air on the Discovery Channel, Plaintiffs filed their ex parte application 26 for a temporary restraining order to halt the release of the Feature. 27 28 83891-00023/3869595.7 4 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 9 of 19 Page ID #:190 1 OF DISCOVERY’S SPEECH 3 A. 5 2049 Century Park East, Suite 2600 Los Angeles, California 90067 PLAINTIFFS SEEK AN UNCONSTITUTIONAL PRIOR RESTRAINT 2 4 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP III. Prior Restraints Like the Injunction Plaintiffs Seek Are Extremely Disfavored. The relief requested by Plaintiffs is among the most extraordinary and most 6 disfavored remedies under the law—a prior restraint of speech on a matter of public 7 interest. See Nebraska Press, 427 U.S. at 559, 562; Alexander v. United States, 509 8 U.S. 544, 549 (1993) (“Temporary restraining orders and permanent injunctions— 9 i.e., court orders that actually forbid speech activities—are classic examples of prior 10 restraints.”). Plaintiffs’ eleventh-hour attempt to stop the broadcast of Discovery’s 11 documentary must be rejected as an impermissible prior restraint. 12 A prior restraint on speech is universally recognized to be “the most serious 13 and the least tolerable infringement on First Amendment rights.” Cuviello v. City of 14 Vallejo, 944 F.3d 816, 831 (9th Cir. 2019) (quoting Nebraska Press Ass’n v. Stuart, 15 427 U.S. at 559). In fact, a “chief purpose of [the First Amendment’s] guaranty [is] 16 to prevent previous restraints on publication.” Near v. Minnesota, 283 U.S. 697, 17 713 (1931). As a result, every request for a prior restraint must be examined with 18 “a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. 19 Sullivan, 372 U.S. 58, 70 (1963); see also New York Times Co. v. United States, 20 403 U.S. 713, 714 (1971) (same). Plaintiffs have not come close to overcoming the 21 “virtually insurmountable barrier” against the issuance of the sort of prior restraint 22 they now seek. Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 259 (1974) 23 (White, J., concurring). 24 The Supreme Court’s precedent on prior restraint is ironclad. The Court has 25 held that prior restraints on publication are unconstitutional even when the 26 publication threatens urgent national security interests. CBS, Inc. v. Davis, 510 27 U.S. 1315, 1317 (1994) (citing New York Times, 403 U.S. at 714). In the famous 28 Pentagon Papers case, the Supreme Court established that a plaintiff must make an 83891-00023/3869595.7 5 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 10 of 19 Page ID #:191 1 extraordinary showing of harm in order to obtain a court order that stops the news 2 media from publishing information on a matter of public concern. The United 3 States government had sought an injunction to prevent the New York Times and 4 Washington Post from publishing information from a classified study on the 5 Vietnam War. Though the materials “pose[d] substantial dangers to national 6 interests,” the court was unwilling to stop the newspapers from printing them. New 7 York Times, 403 U.S. at 733 (White, J., concurring). As one district court found in 8 Religious Technology Center v. Lerma, 897 F. Supp. 260, 262–63 (E.D. Va. 1995): 9 “If a threat to national security was insufficient to warrant a prior restraint . . . the 10 threat to plaintiff’s . . . trade secrets is woefully inadequate.” More than woefully inadequate, Plaintiffs’ purported justification for the 11 12 prior restraint they seek is patently frivolous. Plaintiffs fear that Discovery’s 13 “competing documentary” will “impair[] or destroy[] Plaintiffs’ first-to-market 14 advantage” and prevent Plaintiffs from someday developing and releasing their own 15 documentary. Dkt. No. 8 at *26. If a prior restraint will not issue in the face of a 16 national security threat, it certainly should not issue to protect Plaintiffs’ 17 hypothetical right to someday make a documentary about a photograph of President 18 Lincoln. Plaintiffs’ sole citation 3 to the contrary is to an unpublished decision from the 19 20 Northern District of California that bears no factual resemblance to this case. In 21 that case, the court granted a TRO against a defendant who signed and breached a 22 23 24 25 26 27 Plaintiffs also cite a Ninth Circuit decision for the proposition that an injunction may issue against a statement of fact that is “so misleading that it falls beyond the First Amendment’s protections.” San Antonio Cmty. Hosp. v. S. California Dist. Council of Carpenters, 125 F.3d 1230, 1237 (9th Cir. 1997); but see New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1071, 1083 (C.D. Cal. 2003) (“[A]llegations of falsity are insufficient to warrant prior restraint.”). Plaintiffs do not elaborate on the purported relevance of that citation. In any event, Discovery’s documentary Feature is plainly an expressive work protected by the First Amendment and Plaintiffs do not contend otherwise. 3 28 83891-00023/3869595.7 6 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 11 of 19 Page ID #:192 1 confidentiality agreement to prevent the dissemination of information stolen from 2 an association of abortion providers, on the grounds that such dissemination would 3 lead to acts or threats of violence against those providers. National Abortion 4 Federation v. Center for Medical Progress, 2016 WL 454082, *2 (N.D. Cal. Feb. 5, 5 2016). Aside from the obvious and significant distinction that that case involved an 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 6 7 actual threat of violence if the disclosure went forward (rather than a simply 8 commercial dispute, as here), the key difference is that there, the defendant had 9 entered into a contract with the plaintiff agreeing to injunctive relief to prevent any 10 disclosure of confidential information. Here, Discovery did not enter into any 11 non-disclosure or other confidentiality agreement with Plaintiffs. See, e.g., 12 Compl. at ¶¶71–78 (asserting claims for breach of contract as to all Defendants 13 except Discovery); Swartz Decl., ¶6. Plaintiffs avoid admitting that fact outright in 14 their ex parte application, vaguely referring to “several of the Defendants” as 15 having entered into non-disclosure agreements when what they really mean is 16 “several Defendants, but not Discovery.” Dkt. No. 8 at *30. Discovery did not 17 contractually agree to any restraint on its speech, and this Court should not order 18 any. The request for a temporary restraining order should be rejected on this basis 19 alone. 20 21 22 B. Prior Restraints on a Matter of Public Interest Are Impermissible Even in the Trade Secret Context. The “virtually insurmountable barrier” to a Court issuing a prior restraint 23 holds even with respect to the trade secret claims that Plaintiffs allege here. In 24 CBS, Inc. v Davis, the Supreme Court overturned a preliminary injunction issued 25 under the South Dakota Uniform Trade Secrets Act against the broadcasting of a 26 news report that would reveal “confidential and proprietary practices and 27 processes.” 510 U.S. at 1316. The fact that the injunction in Davis involved trade 28 secrets did not make the Supreme Court’s prior restraint precedent any less relevant 83891-00023/3869595.7 7 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 12 of 19 Page ID #:193 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1 to the Court’s decision. 2 Other federal courts have consistently applied the same standard. See, e.g., 3 Ford Motor Co. v. Lane, 67 F. Supp. 2d 745, 750 (E.D. Mich. 1999) (finding that 4 although plaintiff had presented evidence of a violation of the Michigan Uniform 5 Trade Secrets Act, “the Act’s authorization of an injunction violates the prior 6 restraint doctrine and the First Amendment”); Procter & Gamble Co. v. Bankers 7 Trust Co., 78 F.3d 219, 225 (6th Cir. 1996) (refusing to enjoin publication of trade 8 secrets improperly obtained in violation of a protective order, noting, “[t]he private 9 litigants’ interest in protecting their vanity or their commercial self-interest simply 10 11 does not qualify as grounds for imposing a prior restraint.”). Importantly, this is not merely a private dispute between competitors over the 12 disclosure of trade secrets. Discovery is a major media network set to publish a 13 historically significant documentary. Discovery has no contractual or other 14 confidential relationship with Plaintiffs. The documentary has received and will 15 continue to receive major news coverage for what it uncovers about President 16 Lincoln and his final hours. There can be little doubt that the public has a keen 17 interest in a documentary about one of this nation’s most significant historical 18 moments (the assassination of President Lincoln) and the discovery of an historic 19 artifact from that moment. While even prior restraints of purely private speech are 20 still disfavored, there can be little doubt that a prior restraint in a matter of public 21 interest is virtually never permitted. See, e.g., New.Net, Inc. v. Lavasoft, 356 F. 22 Supp. 2d 1071, 1088 (C.D. Cal. 2003) (denying injunction as prior restraint and 23 noting that “speech on public issues occupies the highest rung of the hierarchy of 24 First Amendment values, and is entitled to special protection”) (quoting Dun & 25 Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985)). 26 27 28 83891-00023/3869595.7 8 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 13 of 19 Page ID #:194 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1 IV. PLAINTIFFS CANNOT MEET THE STANDARD FOR A 2 PRELIMINARY INJUNCTION 3 Even if Plaintiffs were not seeking an unconstitutional prior restraint on 4 speech (which they are), they still fail to establish the elements necessary for 5 issuance of a preliminary injunction. Plaintiffs have made no attempt to show a 6 likelihood of success on the merits as to Discovery (the target of the injunction). 7 Plaintiffs cannot claim any irreparable injury, particularly when they slept on their 8 rights for nearly nine months after learning of the upcoming documentary. The 9 balance of hardships tilts sharply in favor of Discovery, which has invested 10 substantial time and money in preparing for the debut of the Feature. Finally, the 11 public interest strongly weighs against issuance of an injunction that will impair 12 Discovery’s First Amendment rights. 13 14 15 A. Plaintiffs Cannot Show a Likelihood of Success on the Merits as to Discovery. Plaintiffs’ entire argument on the merits is based on a misleading conflation 16 of Discovery with the other Defendants. Whether or not Plaintiffs have stated valid 17 claims for trade secret misappropriation or breach of contract as to the other 18 Defendants is irrelevant to the instant motion, which is directed solely at Discovery. 19 As to Discovery, Plaintiffs’ allegations of wrongdoing are all but nonexistent. 20 In their application, Plaintiffs merely argue that Discovery “is aware that the 21 documentary inappropriately contains trade secret information,” and that that 22 knowledge gives rise to liability under the Defend Trade Secrets Act, 18 U.S.C. 23 § 1836. Dkt. No. 8 at *21–22. Plaintiffs cite demand letters sent in January and 24 April 2020 as supposed evidence that Discovery was put on notice of the 25 misappropriation. But those letters do not identify with any specificity a single 26 “trade secret” purportedly misappropriated or incorporated into the Feature. It is 27 impossible that such vague and speculative letters could have put Discovery on 28 notice of anything. See, e.g., Navigation Holdings, LLC v. Molavi, 445 F. Supp. 3d 83891-00023/3869595.7 9 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 14 of 19 Page ID #:195 1 69, 79 (N.D. Cal. 2020) (finding that plaintiffs failed to state a trade secret 2 misappropriation claim where complaint made “conclusory assertion . . . devoid of 3 any factual substantiation of Defendants’ knowledge”); Bombardier Inc. v. 4 Mitsubishi Aircraft Corp., 383 F. Supp. 3d 1169, 1182 (W.D. Wash. 2019) (the fact 5 that a company hired a competitor’s employee who may have been in possession of 6 trade secrets “does not meet the knowledge requirement for trade secret 7 misappropriation”). 8 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 9 Plaintiffs have not alleged (much less substantiated) a plausible claim against Discovery, and so no temporary injunction should issue. 10 B. 11 Plaintiffs cannot show “irreparable harm” after waiting to sue for almost nine 12 13 14 15 16 17 18 Plaintiffs Will Not Suffer Irreparable Harm. months. On January 21, 2020, Plaintiffs stated: We have learned through sworn testimony that [Plaintiffs’] Confidential Information has been disclosed for purposes of filming a production that we understand is to be aired on the Discovery Channel. The disclosure of this Confidential Information is a direct violation of the NDA and subjects the disclosing parties to possible damages and injunctions. Compl., Ex. B. This is an unambiguous and unequivocal statement that Plaintiffs knew the 19 factual basis for the instant injunction in January of this year. Such delay precludes 20 any finding of irreparable harm. Garcia v. Google, Inc., 786 F.3d 733, 746 (9th Cir. 21 2015) (no irreparable harm where plaintiff waited several months after learning of 22 claim); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th 23 Cir. 1985) (“Plaintiff’s long delay before seeking a preliminary injunction implies a 24 lack of urgency and irreparable harm.”); see also Wreal, LLC v. Amazon.com, Inc., 25 840 F.3d 1244, 1248 (11th Cir. 2016) (no irreparable harm in case of five-month 26 delay in seeking relief); Citibank, N.A. v. Citytrust, 756 F.2d 273, 276–77 (2d Cir. 27 1985) (same for a nine-month delay). 28 Plaintiffs’ unexplained delay in seeking relief speaks to the nature of their 83891-00023/3869595.7 10 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 15 of 19 Page ID #:196 1 supposed “harm,” which is not “irreparable” or unquantifiable in the slightest. This 2 is not a case in which Plaintiffs fear disclosure of their trade secrets to competitors 3 who may steal their customers or gain a competitive advantage. In fact, Plaintiffs 4 apparently believed that the non-Discovery defendants were misappropriating their 5 trade secrets since as early as February 2018, and yet Plaintiffs never filed suit. 6 Compl. at ¶ 38 (alleging that Defendant W. Braun “misappropriated” confidential 7 information after one of her first meetings with Plaintiff Williamson). It was only 8 after Discovery announced the specific date when its documentary would air that 9 Plaintiffs sprang into action. 10 This is because the real injury Plaintiffs allege is that, if Discovery’s 11 documentary airs, Plaintiffs will be unable to profit from a “competing 12 documentary” (Dkt. No. 8 at *25:7) and to share the results of their investigation 13 “in a way they were able to control” (Id. at *13:14). But diminution in the “market 14 value of Plaintiffs’ competing documentary” is a harm that is completely 15 compensable through monetary damages. See, e.g., Puma SE v. Forever 21, Inc., 16 2017 WL 4771003, at *3 (C.D. Cal. June 2, 2017) (loss of market share can be 17 “compensated with money damages”); Nano-Second Tech. Co. v. Dynaflex Int’l, 18 2011 WL 4502025, at *4 (C.D. Cal. Sept. 28, 2011) (“Plaintiff has not proffered 19 any evidence to show how future loss of revenue and market share cannot be 20 compensated with money damages.”). “[T]o demonstrate irreparable harm, [a 21 plaintiff] must do more than simply assert a theft of trade secrets—it must point to 22 something specific about [defendant’s] misconduct that is generating a type 23 of harm that can’t be measured or compensated via money damages.” TDBBS LLC 24 v. Ethical Prod. Inc., 2019 WL 979944, at *4 (D. Ariz. Feb. 28, 2019); accord 25 Calence, LLC v. Dimension Data Holdings, PLC, 222 F. App’x 563, 566 (9th Cir. 26 2007) (no presumption of irreparable harm in trade secret misappropriation cases). 27 Plaintiffs merely assert, without evidence or explanation, that the supposed 28 loss of their ability to make a competing documentary feature is not compensable 83891-00023/3869595.7 11 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 16 of 19 Page ID #:197 1 through monetary damages. That allegation is insufficient to establish irreparable 2 harm and therefore cannot warrant an injunction. 4 3 C. The Balance of Hardships Favors Discovery. 4 The injunction sought by Plaintiffs would cause a profound and immediate 5 injury to Discovery that far outweighs any benefit to Plaintiffs. As a consequence 6 of Plaintiffs waiting until the last minute to bring this ex parte application, 7 Discovery has already expended significant time and money marketing and 8 promoting the upcoming launch of the Feature. Declaration of Donna D’Alessandro 9 (“D’Alessandro Decl.”), ¶¶3-4. The Feature will be airing on primetime, this 10 Sunday at 9 p.m. Eastern (6 p.m. Pacific), and is intended to anchor a new 11 Discovery Channel anthology series following various investigative explorations of 12 historical events and mysteries. Declaration of Laurie Goldberg (“Goldberg Decl.”), 13 ¶¶2–3. As a result of both the importance of the new series to Discovery’s brand and 14 15 the newsworthy nature of the documentary’s content, Discovery is promoting the 16 Feature through dozens of high-profile news outlets as well as its affiliate networks. 17 In the coming days before its debut, Discovery anticipates that the Feature will be 18 covered in major outlets like People Magazine, the Associated Press, TV Insider, 19 and dozens of other print media, online publications, radio programs, and podcasts. 20 Among other accolades and favorable reviews for the Feature, Discovery 21 understands that it will be featured in People Magazine’s coveted “People’s Picks,” 22 as one of a handful of television programs the magazine will be promoting. 23 Goldberg Decl., ¶4. This extensive media coverage is a one-time opportunity—If 24 the Feature is delayed indefinitely, Discovery will not get a second chance with the 25 26 27 28 Plaintiffs also make various assertions to the effect that an injunction is needed because the Feature is “factually inaccurate or misleading” (TRO, Dkt. 8 at *25:19), contains information “falsely attributed” to others (TRO, Dkt. 8 at *11:19) and “fail[s] to credit Plaintiffs’ appropriately” (TRO, Dkt. 8 at *29:25). Such claims— to the extent legally actionable at all—are manifestly compensable in damages and cannot support a prior restraint. 4 83891-00023/3869595.7 12 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 17 of 19 Page ID #:198 1 above outlets, and both the Feature and Discovery’s brand will suffer markedly as a 2 result. Goldberg Decl., ¶5. 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 3 Indeed, the particular timeslot in which Discovery intends to release this new 4 franchise is critical. Because the Feature is intended to anchor a new Discovery 5 Channel anthology series, Undiscovered, Discovery has scheduled it to debut in a 6 high-value time slot, immediately following the season finale of the hit franchise 7 Alaskan Bush People. D’Alessandro Decl., ¶3. If Discovery were forced to pull or 8 substitute out the Feature at the last minute (replacing it with a rerun or other lower- 9 value broadcast), this would lead to a significant drop in viewership (i.e., lower 10 ratings). This would also risk harming the brand to the extent that viewers were 11 expecting a new, significant premiere, only to instead find a rerun or “encore” of a 12 previous show. Discovery expects that viewership would decline that night by as 13 much as 30–50% from the program leading into the 9 p.m. time slot. D’Alesandro 14 Decl, ¶5. These losses, while difficult to quantify, could likely be at least $100,000 15 if not substantially higher. Id. This is in addition to the cost of advertising for the 16 show, which is valued at approximately $4 million. Id at ¶4. 17 The Ninth Circuit has recognized that such losses from the delay of a 18 broadcast constitute a significant hardship militating against an injunction. 19 Playmakers LLC v. ESPN, Inc., 376 F.3d 894, 898 (9th Cir. 2004). There is no 20 sound reason to subject Discovery to this significant harm, particularly after 21 Plaintiffs waited for nearly nine months to assert their claims. 22 D. The Public Interest Weighs Against the Injunction. 23 There is a “significant public interest in upholding free speech principles.” 24 Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (internal 25 quotations omitted). Generally, “it is always in the public interest to prevent the 26 violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 27 1002 (9th Cir. 2012) (internal quotations omitted). Given that Plaintiffs seek a 28 prior restraint on Discovery’s protected speech, there is a strong public interest in 83891-00023/3869595.7 13 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 18 of 19 Page ID #:199 1 protecting Discovery’s constitutional rights that supports denial of the injunction. 2 Any minimal public interest in a commercial dispute between Plaintiffs and 3 Defendants is far outweighed by the public interest in Discovery’s protected 4 speech, particularly in the context of the dissemination of a documentary of 5 historical significance. 6 E. Substantial Bond. 7 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 8 If the Court Were to Grant an Injunction, Plaintiffs Must Post a If the Court should decide to issue the extraordinary remedy of a prior 9 restraint on Discovery’s speech, Discovery requests that Plaintiffs be required to 10 post a bond in an amount no less than $500,000. See FRCP 65(c) (providing that 11 no preliminary injunction may be issued without requiring the party seeking the 12 injunction to first post security “in such sum as the court deems proper, for the 13 payment of such costs and damages as may be incurred or suffered by any party 14 who is found to have been wrongfully enjoined or restrained”). Contrary to 15 Plaintiffs’ suggestion, “[t]he instances in which a bond may not be required are so 16 rare that the requirement is almost mandatory.” Frank’s GMC Truck Ctr., Inc. v. 17 Gen. Motors Corp., 847 F.2d 100, 103 (3d Cir. 1988). 18 The Feature is set to premiere during prime time—9:00 p.m. ET this Sunday, 19 October 4. Discovery has promoted this special as the kickoff to its new 20 documentary series, Undiscovered, which is to become a flagship of Discovery 21 Channel’s programming. Discovery has already expended significant sums 22 promoting the Feature, including advertising spend valued at or around $4 million, 23 and will lose substantial viewership and revenue if forced to preempt its 24 premiere. D’Alessandro Decl., ¶¶3–5. Under these circumstances, a bond of no 25 less than $500,000 is needed in the event a restraining order were improvidently 26 granted. 27 28 83891-00023/3869595.7 14 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION Case 2:20-cv-08837-SVW-MAA Document 14 Filed 09/29/20 Page 19 of 19 Page ID #:200 2049 Century Park East, Suite 2600 Los Angeles, California 90067 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1 V. CONCLUSION 2 Plaintiffs’ requested relief is as extraordinary as it is unwarranted. It is 3 unconstitutional to issue a prior restraint on speech where the sole harm alleged is a 4 financial loss based on a desire to make a competing documentary. Even aside 5 from the constitutional deficiency of the request, the ex parte application utterly 6 fails to establish any likelihood of success on the merits against Discovery, fails to 7 identify any “irreparable” harm after Plaintiffs slept on their rights for months on 8 end, and fails to account for the significant hardship to Discovery and the public 9 interest. Plaintiffs’ request should be denied. 10 11 DATED: September 29, 2020 12 13 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP By: 14 15 16 17 AARON J. MOSS (SBN 190625) JOSHUA M. GELLER (SBN 295412) JILLIAN A. BERK (SBN 328439) Attorneys for Defendant DISCOVERY COMMUNICATIONS, LLC 18 19 20 21 22 23 24 25 26 27 28 83891-00023/3869595.7 15 DISCOVERY’S OPPOSITION TO EX PARTE APPLICATION