Paramount Pictures Corporation v. ReplayTV, Inc., Joint Stipulation ...

12345678910111213141516171819202122232425262728C. Defendants’ Contentions Regarding the Requests At IssuePlaintiffs demand the names and addresses of Defendants’ users, whethercustomers, employees or testers. 50/This is a reprise of their discredited evidencegatheringtactics from Sony. The definitive history of the Sony case described it thisway:In search of harder data, the plaintiffs secured a list ofBetamax purchasers in the Los Angeles area and began tomake a systematic study of their habits. But they had notgone very far with this effort when [Sony counsel Dean]Dunleavey lodged a protest. “ They had sent out a privateinvestigator and some paralegals, and they werebadgering homeowners,” he said later. “ So we went to thejudge and said, ‘Make them cut this out, this going fromdoor to door, knocking and scaring people.’ The judgesaid, ‘Yes that’ s no way to behave. If you want to findout what people are doing, I will let each of you conduct asurvey, using a proper foundation, and you can then putthose surveys in evidence.’ “ This was an invitation thatneither side could resist.J. Lardner, Fast Forward, Hollywood, The Japanese, and the VCR Wars, at 107.More than twenty years after Judge Ferguson slapped down Plaintiffs’harassment of VCR owners, they want to try it again with ReplayTV owners. TheCourt should not permit this harassment either. Defendants have offered a surveysolution similar to what Judge Ferguson ordered.Defendants propose that the parties commission a single joint survey,prepared under Court supervision to the extent necessary, to be administered by anindependent survey organization that would be provided with the identities ofReplayTV 4000 owners and users. Those names would not be provided toPlaintiffs directly, but only to the survey professionals. The survey results wouldbe evidence of consumer behavior for trial. Defendants would agree not to use theirown customer data to conduct a separate survey to be offered in evidence. TherePlaintiffs do not articulate a different rationale for any of their targets,customers, testers, or employees. Accordingly, Defendants will treat them thesame.50/65