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1 GUTRIDE SAFIER REESE LLP Adam J. Gutride (Cal. State Bar No.181466) 2 Seth A. Safier (Cal. State Bar No. 197427) 835 Douglass Street 3 San Francisco, California 94114 Telephone: (415) 271-6469 4 Facsimile: (415) 449-6469 5 Counsel for Plaintiff 6 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 07-5115 JSW PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(B)(1) AND CROSSMOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL OR STRIKE PORTIONS OF DECLARATIONS OF SHERI FLAME EISNER AND NATALIE STERLING JUDGE: Hon. Jeffery S. White DATE: Jan. 25, 2008 TIME: 9:00 am CTRM: 2

11 DOE, Individually And On Behalf Of All Others Similarly Situated, 12 Plaintiff, 13 vs. 14 NETWORK SOLUTIONS, LLC Defendant. 15 16 17 18 19 20 21 22 23 24 25 26 27

OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(b)(1) AND CROSS MOTION FOR LEAVE TO

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IV. B. C. D. I. II. III.

TABLE OF CONTENTS INTRODUCTION..............................................................................................................1 STATEMENT OF FACTS................................................................................................2 ARGUMENT......................................................................................................................3 A. Defendant's Motion to Dismiss For Lack of Jurisdiction Should Be Denied......................................................................................................................3 1. 2. FRCP 12(b)(1) Standard Of Review. .......................................................3 Special Circumstances Warrant Plaintiff Filing As "Doe."...................4 a) b) c) d) e) f) Severity Of The Threatened Injury..............................................5 Reasonableness Of Plaintiff's Fears .............................................5 Plaintiff's Vulnerability To Retaliation .......................................6 Prejudice To Defendant.................................................................6 The Public Has No Interest In Knowing Plaintiff's Name.........7 At This Stage Plaintiff's Interest In Remaining Anonymous Is Particularly Important.........................................7

In The Alternative, Plaintiff Should Be Granted Leave To File As "DOE".....................................................................................................................8 Alternatively, Plaintiff Should Be Granted Leave To Amend...........................8 The Declarations of Sheri Eisner and Natalie Sterling Should Be Sealed Or References To Plaintiff's Name Stricken. ......................................................9

CONCLUSION ..................................................................................................................9

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1 2 3 4 5 6 7 8 CASES

TABLE OF AUTHORITIES

Doe v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000) ............................................ 4, 7 Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997) ............... 4 Doe v. Bolton, 410 U.S. 179 (1973)..................................................................................................... 4 Doe v. INS, 867 F.2d 285, 286 n.1 (6th Cir. 1989) .............................................................................. 4 Doe v. Madison School Dist. No. 321, 147 F.3d 832, 833 n.1 (9th Cir. 1998), vacated on other grounds, 177 F.3d 789 (9th Cir. 1999) (en banc) .................................................................... 4

9 Doe v. Rostker, 89 F.R.D. 158, 163 (N.D. Cal. 1981) ......................................................................... 8 10 Doe v. Stegall, 653 F.2d 180, 183 (5th Cir. 1981)............................................................................... 8 11 Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir. 2000) ................. 4, 8 12 James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993)........................................................................ 4, 7 13 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)............................. 9 14 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).......................................................... 3 15 Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. 2001) ............................................................... 3 16 Moe v. Dinkins, 533 F. Supp. 623, 627 (S.D.N.Y. 1981) .................................................................... 4 17 Poe v. Ullman, 367 U.S. 497 (1961).................................................................................................... 4 18 Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) .............................................................. 3 19 Roe v. City of San Diego, 2001 U.S. Dist. LEXIS 26137, 11-12 (SD. Cal. 2001) .............................. 8 20 Roe v. City of San Diego, 356 F.3d 1108, 2004 U.S. App. LEXIS 1330 (9th Cir. 2004).................... 8 21 Roe v. Wade, 410 U.S. 113 (1973)....................................................................................................... 4 22 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)................................................ 3 23 Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)................................. 4 24 United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1981)............................................................... 4 25 White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).............................................................................. 3 26 27
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LEAVE TO FILE AS "DOE" AND TO SEAL EISNER DECLARATION- CASE NO. C 07-5115 JSW

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Plaintiff respectfully submits this Opposition to Defendant's Motion to Dismiss (Dkt.#

2 10) and cross motion for leave to file as "DOE" and to seal or strike portions of the Declarations 3 of Sheri Flame Eisner (Dkt.# 17) and Natalie Sterling (Dkt.# 18). 4 I. INTRODUCTION 5 Defendant Network Solutions ("Defendant") from the outset of this dispute has claimed

6 to be a "customer focused" company. This claim is belied by its conduct. 7 Defendant published on the Internet, or made available to search engines such as Google

8 for publication, scores of Plaintiff's private emails, including snap-shots of his web based email 9 in-box. Instead of apologizing and correcting the problem, Defendant blamed its action on 10 Google. Yet Defendant simultaneously (and inconsistently) assured Plaintiff that the problem 11 had been "fixed." Defendant refused, however, to explain how and what it was that was "fixed" 12 or whether it had also been "fixed" for those similarly situated. 13 When informed during pre-litigation settlement talks that Plaintiff did not want to

14 compound his injury by suing under his name, which could alert even more people to the 15 contents of his private emails, Defendant preemptively sued him by name. Defendant's suit (in 16 Virginia state court) seeks a declaration that would bar this federal action from proceeding.1 17 Defendant's lawyer (Eisner) and employee (Sterling) then filed declarations here identifying 18 both the Virginia state court action and Plaintiff's full name. 19 By way of this motion, Defendant now asks this Court to assist its campaign at exposing

20 Plaintiff's private matters. Apparently seeking to deter other potential injured parties from 21 coming forward, Defendant wants to ensure that if they do, they will be publicly named, so that 22 the injury they have sustained from Defendant's actions will be compounded. 23 Defendant argues that there are lofty public interests in not permitting Plaintiff to remain

24 anonymous. On balance, however, the opposite is true. Defendant will suffer no prejudice by 25 permitting Plaintiff to remain anonymous in this case. The "public" has no need to know 26 Plaintiff has filed a "plea in bar" to the Virginia action and motion to quash service and expects that it will soon be dismissed. Thereafter, Plaintiff will seek to seal the proceedings in that 27 action.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(b)(1) AND CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL EISNER DECLARATION- CASE NO. C 07-5115 JSW 1

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1 Plaintiff's name; indeed, the public interest is in preventing such disclosure so that people can 2 rely on the statutorily protected privacy of email services. Any public disclosure already made 3 should be limited by sealing the Eisner and Sterling declarations (or striking the references 4 therein to Plaintiff's name) and permitting this case to proceed anonymously. 5 II. STATEMENT OF FACTS 6 Defendant is in the business of selling domain name registration and providing other

7 related Internet services. On behalf of its customers such as Plaintiff, Defendant registers 8 personalized Internet domain names (e.g., "janesbagels.com") for approximately $34.99 per year. 9 Defendant also provides web-based online email accounts at the registered domain names (e.g., 10 [email protected]), at an additional cost of approximately $20 per year per account. 11 Defendant's customers may check their email accounts by logging in, with their usernames and 12 passwords, at Defendant's website (i.e., www.networksolutions.com). 13 In or about May of 2007, Plaintiff became aware that copies of his entire email in-box, as

14 well as the contents of his emails, were publicly available on the Internet. Such emails and the 15 inbox were easily locatable on Internet search engines, including Google. These emails included 16 sensitive, private personal and financial information such as (without limitation) his physical 17 address, telephone number(s), passwords, usernames and other information about his personal 18 and professional life. 19 In May 2007, Plaintiff sent Defendant a letter demanding correction on behalf of himself

20 and those similarly situated. Plaintiff informed Defendant that the release of his personal 21 information and emails violated the California Customer Records Act, California Civil Code § 22 1798.80, et seq.; the Electronics Communications Privacy Act, 18 U.S.C. § 2702; the California 23 Unfair Trade Practices Act, California Business & Professions Code § 17200 et seq.; and the 24 California Consumers Legal Remedies Act ("CLRA"), California Civil Code § 1750, et seq. 25 Defendant ignored Plaintiff's letter for almost two months before responding. 26 When Defendant finally responded, it blamed the problem on Google. Somewhat

27 inconsistently, however, Defendant also stated that it had fixed the problem. Defendant refused 28

OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(b)(1) AND CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL OR STRIKE EISNER AND STERLING DECLARATIONS- CASE NO. C 07-5115 JSW

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1 to state what the problem had been or what corrective action it had taken, or to notify those 2 similarly situated or compensate those affected. 3 While the parties were discussing a possible settlement, Plaintiff offered to provide

4 Defendant with a draft complaint of his claims for relief. Defendant then preemptively filed suit 5 against Plaintiff in state court in Fairfax County, Virginia. Less than a week later, Plaintiff filed 6 suit in this Court and served summons on Defendant. 7 III. ARGUMENT 8 9 10 A. Defendant's Motion to Dismiss For Lack of Jurisdiction Should Be Denied. 1. FRCP 12(b)(1) Standard Of Review. Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes a party to move to

11 dismiss a claim for lack of subject matter jurisdiction. The party seeking to invoke the court's 12 jurisdiction (here, Plaintiff) bears the burden of proving that subject matter jurisdiction exists. 13 See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 14 A party challenging the court's jurisdiction under Rule 12(b)(1) may do so by raising

15 either a facial attack or a factual attack. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). 16 A facial attack is one where "the challenger asserts that the allegations contained in a complaint 17 are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 18 F.3d 1035, 1039 (9th Cir. 2004). In evaluating a facial attack to jurisdiction, the Court must 19 accept the factual allegations in plaintiff's complaint as true. See Miranda v. Reno, 238 F.3d 20 1156, 1157 n. 1 (9th Cir. 2001). For a factual attack, in contrast, the Court may consider 21 extrinsic evidence. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Further, the 22 court does not have to assume the truthfulness of the allegations, and may resolve any factual 23 disputes. See White, 227 F.3d at 1242. Thus, "[o]nce the moving party has converted the motion 24 to dismiss into a factual motion by presenting affidavits or evidence properly before the court, 25 the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its 26 27 28

OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(b)(1) AND CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL OR STRIKE EISNER AND STERLING DECLARATIONS- CASE NO. C 07-5115 JSW

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1 burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., 343 2 F.3d 1036, 1039 n.2 (9th Cir. 2003).2 3 4 2. Special Circumstances Warrant Plaintiff Filing As "Doe." Many federal courts, including the Ninth Circuit, have permitted parties to proceed

5 anonymously when special circumstances justify secrecy. See, e.g., Doe v. Advanced Textile 6 Corp., 214 F.3d 1058, 1067 (9th Cir. 2000) citing Doe v. Madison School Dist. No. 321, 147 7 F.3d 832, 833 n.1 (9th Cir. 1998), vacated on other grounds, 177 F.3d 789 (9th Cir. 1999) (en 8 banc); Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997); 9 James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993); Doe v. INS, 867 F.2d 285, 286 n.1 (6th Cir. 10 1989); Moe v. Dinkins, 533 F. Supp. 623, 627 (S.D.N.Y. 1981), aff'd, 669 F.2d 67 (2d Cir. 11 1982).3 Parties are permitted to use fictitious names "when nondisclosure of the party's identity 12 `is necessary . . . to protect a person from harassment, injury, ridicule or personal 13 embarrassment.'" Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th 14 Cir. 2000) citing United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1981). "[A] party may 15 preserve his or her anonymity in judicial proceedings in special circumstances when the party's 16 need for anonymity outweighs the prejudice to the opposing party and the public's interest in 17 knowing the party's identity." Id. at 1068. 18 The Ninth Circuit in Advanced Textile established a five-factor balancing test to weigh

19 the parties' respective interests in the use of pseudonyms. Id. at 1070-73. Under this test, a 20 district court must analyze the (1) severity of the threatened injury, (2) reasonableness of 21 plaintiffs' fears, (3) plaintiffs' vulnerability to retaliation, (4) prejudice to defendants, and (5) 22 public's interest in knowing the parties' names. On balance, each prong of the test illustrates that 23 Defendant's retributive motion should be denied. 24 In this instance, Defendant only challenges Plaintiff's ability to pursue this litigation 25 anonymously; otherwise, it is clear that this Court has subject matter jurisdiction over this case. 26 The Supreme Court has implicitly endorsed the use of pseudonyms to protect plaintiffs' privacy. See Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) (abortion); Doe 28 v. Bolton, 410 U.S. 179 (1973) (abortion); Poe v. Ullman, 367 U.S. 497 (1961) (birth control). 27
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OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(b)(1) AND CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL OR STRIKE EISNER AND STERLING DECLARATIONS- CASE NO. C 07-5115 JSW

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a) Severity Of The Threatened Injury. The threatened injury is that Plaintiff's personal email, containing intimate information,

3 will be made even more public. It is true that the information is already available on the Internet. 4 It is also true that Plaintiff's identity can now be learned because of Defendant's preemptive suit 5 in Virginia, at least until that suit is dismissed and sealed (see supra footnote 1). However, it is 6 likely that Plaintiff's emails will be even more widely distributed if his name is disclosed in the 7 caption of this case. At this point, Plaintiff does not even know the extent of information that has 8 been published, because Defendant continues to refuse to divulge that information to Plaintiff. 9 As such, the more people who learn of Plaintiff's name in connection with this suit, and the more 10 rigorously they search the Internet, the more likely it is that additional personal information will 11 be disseminated. 12 Additionally there is prejudice to other persons not represented here who sent email to the

13 Plaintiff. Once the public knows Plaintiff's name, if it finds the published emails on the Internet, 14 it can learn the identities of persons with whom Plaintiff corresponded, as well as the text of their 15 communications. Potential prejudice to such persons outweighs Defendant's desire to harass and 16 punish Plaintiff for demanding that Network Solutions discontinue its privacy violations. 17 18 b) Reasonableness Of Plaintiff's Fears Plaintiff's fears are real. There is no dispute that Defendant published or made available

19 for publication Plaintiff's email and his in-box. The only questions that remain are the quantity
4 20 of emails unlawfully disclosed and the length of time during which these emails were disclosed.

21

Plaintiff's fear about the privacy of email from his friends, family and colleagues are also

22 quite reasonable. As alleged in the Complaint, the emails contain sensitive personal and business 23 information, including information about romantic relationships, financial status, and social
5 24 plans.

25 As soon as Plaintiff discovered the problem, he opened (and began using) an alternate email account for sensitive email. However, he renewed his account based on assurances that the 27 account was private and secure. 26 28 There are, for example, emails in those publicly disclosed from a friend of Plaintiff's who is discussing, in detail, a romantic relationship. There are additionally emails containing (without
OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(b)(1) AND CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL OR STRIKE EISNER AND STERLING DECLARATIONS- CASE NO. C 07-5115 JSW 5 4

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c) Plaintiff's Vulnerability To Retaliation Plaintiff is not vulnerable to retaliation in this instance. He is, however, quite vulnerable

3 to further infamy and/or obloquy. If this case becomes even more public, Plaintiff (and others) 4 will suffer further reputational harm. 5 6 d) Prejudice To Defendant. Defendant does not argue that it will be prejudiced if Plaintiff is permitted to remain

7 anonymous. Rather, Defendant only argues that it would be "unfair" to allow Plaintiff to remain 8 anonymous because (1) he has made no effort to conceal the identity of Defendant, (2) it would 9 complicate discovery, increase the cost of defense, require closed hearing and obligate Defendant 10 to file briefs under seal, (3) it would hamstring its ability to defend itself from adverse publicity 11 and (4) his identity is important to the case. Each of Defendant's arguments is overstated. 12 First, it was Defendant that first revealed its identity by filing the Virginia action.

13 Moreover, unlike Plaintiff, Defendant is a large corporation with very little to lose, especially 14 because each of Plaintiff's allegations is true.6 Nor is any of Defendant's "private" information 15 likely to be disclosed to the public by naming it as a Defendant, while naming Plaintiff could 16 lead the public to find his private emails. 17 Defendant may be correct that if this action is prosecuted anonymously, it might be

18 required to file more documents under seal. However, the additional time Defendant spends 19 filing documents under seal is trivial, particularly because Defendant will likely designate nearly 20 all of its documents as "confidential" or "highly confidential," requiring sealing of those 21 documents or pleadings that refer to them. As such, forcing Plaintiff to divulge his name will not 22 result in much more than a marginal saving of time and expense. 23 24 25 limitation) financial information, addresses, passwords, usernames, phone numbers, schedules, dates, etc. of both the Plaintiff and third parties. 26 6 Defendant argues that Plaintiff published disparaging claims about Defendant that would be actionable if not protected by the litigation privilege. This is false because truth is an absolute 27 defense. See, e.g., Terry v. Davis Community Church, 131 Cal.App.4th 1534, 1553 (2005) (truth 28 is complete defense to defamation claim.)

OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(b)(1) AND CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL OR STRIKE EISNER AND STERLING DECLARATIONS- CASE NO. C 07-5115 JSW

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The remainder of Defendant's unfairness argument is merely conclusory--it is simply

2 not explained how, for example, Defendant will suffer adverse publicity or why Plaintiff's 3 identity is important to this case.7 Defendant, in fact, will not suffer undeserved adverse 4 publicity by having Plaintiff's name remain secret, nor is Plaintiff's identity important to 5 deciding the merits of this case. 6 7 e) The Public Has No Interest In Knowing Plaintiff's Name. Defendant also unconvincing argues that the public is interested in knowing Plaintiff's

8 name. However, Defendant entirely fails to explain why. In truth, the public has no interest in 9 knowingly Plaintiff's name. Rather, the public interest militates toward allowing Plaintiff to 10 remain anonymous. If plaintiffs may not remain anonymous in such instances, it will chill suits 11 that seek to hold defendants responsible in similar circumstances. It is axiomatic that publicly 12 filing suit salts the wounds inflicted by Defendant. Furthermore, the public, including those who 13 sent email to Plaintiff, certainly would not want the existence of those emails further publicized. 14 Finally, Defendant argues that because this is a class action, those similarly situated have

15 a direct interest in his identity. No basis is provided for the argument. Even were it correct, it is 16 premature; if a class is certified the Court can decide at that time whether the class notice must 17 divulge Plaintiff's name. 18 19 20 also determine the precise prejudice at each stage of the proceedings to the opposing party, and 21 whether proceedings may be structured so as to mitigate that prejudice. See Advanced Textile 22 Corp., 214 F.3d at 1067-68 citing James, 6 F.3d at 240-41 (evaluating defendants' assertions that 23 plaintiffs' use of pseudonyms would prejudice the jury against the defendants and would impair 24 defendant's ability to impeach plaintiffs' credibility). At this infant stage of the litigation, it is 25 impossible for Plaintiff to know what exactly Defendant published, or made publicly available to 26 27 Defendant's argument regarding business use under the CLRA can be established, and indeed refuted, in the exact same manner regardless of whether Plaintiff remains as "DOE." 28
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f) At This Stage Plaintiff's Interest In Remaining Anonymous Is Particularly Important The Ninth Circuit has held that with respect to anonymous proceedings, a court should

OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(b)(1) AND CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL OR STRIKE EISNER AND STERLING DECLARATIONS- CASE NO. C 07-5115 JSW

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1 search engines, on the Internet. Thus, the Court should err on the side of protecting the 2 Plaintiff's identity, because even more sensitive information may have been published than is 3 currently known. 4 5 B. In The Alternative, Plaintiff Should Be Granted Leave To File As "DOE" Plaintiff hereby cross-moves for leave to file as "DOE." For the reasons set forth above,

6 Plaintiff's need for anonymity in this litigation (especially at this pre-discovery stage) outweighs 7 risk of unfairness to Defendant and the public's interest in knowing Plaintiff's identity. 8 Defendants argue that plaintiff was required to file an application for leave to proceed as

9 "Doe" and to obtain an order granting the application, before the Complaint was filed. To 10 support the argument, however, Defendant cites only inapposite cases from other circuits. The 11 Ninth Circuit, in Advanced Textile, implicitly ratified Plaintiff's procedural course, by granting 12 an application for leave after the complaint had been filed by plaintiffs proceeding under a 13 pseudonym. See Roe v. City of San Diego, 2001 U.S. Dist. LEXIS 26137, 11-12 (SD. Cal. 2001) 14 rev'd (on other grounds) Roe v. City of San Diego, 356 F.3d 1108, 2004 U.S. App. LEXIS 1330 15 (9th Cir. 2004) citing generally Advanced Textile Corp., 214 F.3d 1058. Were Defendants 16 correct about the rules in this district, the Clerk of the Court would undoubtedly have refused to 17 file the Complaint until Plaintiff had obtained leave to file it as a "Doe" plaintiff. Plaintiff 18 should now be granted leave to proceed as "DOE." 19 20 C. Alternatively, Plaintiff Should Be Granted Leave To Amend. If this Court is inclined to grant Defendant's motion to dismiss--which it should not--it

8 21 should do so with leave to amend. Leave to amend will permit Plaintiff to determine whether his

22 interest in remaining anonymous outweighs his desire to obtain justice on behalf of himself and 23 those similarly situated. 24 25 26 27 See, e.g., Doe v. Rostker, 89 F.R.D. 158, 163 (N.D. Cal. 1981); Doe v. Stegall, 653 F.2d 180, 183 (5th Cir. 1981). 28
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D. The Declarations of Sheri Eisner and Natalie Sterling Should Be Sealed Or References To Plaintiff's Name Stricken. Even before this motion was decided, Defendant again took "self-help" to publicize

4 Plaintiff's identity in this case having its lawyer and employee Sheri Eisner and Natalie Sterling, 5 respectively, file declarations divulging it. (See Dkt.# 17-18). Plaintiff requests that these 6 declarations be sealed, or that references in them to Plaintiff's name be stricken and replaced 7 with "Doe." 8 To justify sealing the records, the Court must "articulate[] compelling reasons supported

9 by specific factual findings that outweigh the general history of access and the public policies 10 favoring disclosure, such as the public interest in understanding the judicial process.... In 11 general, compelling reasons sufficient to outweigh the public's interest in disclosure and justify 12 sealing court records exist when such court files might have become a vehicle for improper 13 purposes, such as the use of records to gratify private spite, promote public scandal, circulate 14 libelous statements, or release trade secrets." Kamakana v. City and County of Honolulu, 447 15 F.3d 1172, 1180 (9th Cir. 2006) (internal quotation marks and citations omitted). Here, there 16 was no reason for Defendant to divulge Plaintiff's name other than to punish him for suing and 17 deter others from coming forward, by making them fear that doing so will only increase the 18 injury they have sustained by increasing the public access to their private emails. 19 If the Court does not wish to seal the declarations, it should, under FRCP Rule 12(f),

20 strike from them all references to Plaintiff's name. 21 IV. CONCLUSION 22 Defendant's motion to dismiss should be denied and Plaintiff should granted leave to file

23 as a "DOE." In the alternative, Plaintiff should be granted leave to file an amended complaint. 24 In addition, the Declarations of Sheri Eisner and Natalie Sterling should be sealed or all 25 references to Plaintiff's name therein (including in any exhibits thereto) ordered stricken from 26 the public record. 27 28

OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(b)(1) AND CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL OR STRIKE EISNER AND STERLING DECLARATIONS- CASE NO. C 07-5115 JSW

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1 2 Dated: December 14, 2007 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By:____________________ Adam J. Gutride Seth A. Safier 835 Douglas Street San Francisco, California 94114 Telephone: (415) 271-6469 Facsimile: (415) 449-6469 Respectfully Submitted, GUTRIDE SAFIER REESE LLP

OPPOSITION TO DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(b)(1) AND CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL OR STRIKE EISNER AND STERLING DECLARATIONS- CASE NO. C 07-5115 JSW

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