Karen O’Kasey, OSB No. 870696
HOFFMAN, HART & WAGNER, LLP
Twentieth Floor
1000 S.W. Broadway
Portland, Oregon 97205
Telephone: (503) 222-4499
Facsimile: (503) 222-2301
E-mail: kok@hhw.com
Of Attorneys for Defendant The City of Ashland
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AMERICAN BUDDHA, an Oregon
Nonprofit Corporation,
Plaintiff,
v .
THE CITY OF ASHLAND AND THE
WASHINGTON POST COMPANY,
Defendants.
No. 06-CV-3054-PA
DEFENDANT’S MOTION TO STRIKE EVIDENCE
OFFERED IN SUPPORT OF RESPONSE TO SUMMARY JUDGMENT
MOTION
Oral Argument Requested
LOCAL RULE 7.1 CERTIFICATION
The undersigned certifies that a good faith effort
has been made to resolve the subject matter of this
motion and the Court’s ruling is necessary on this
matter.
INTRODUCTION
This is a claim brought pursuant to 42 U.S.C. § 1983
for a violation of procedural due process rights and
the First Amendment. Plaintiff alleged that the
disconnection of a modem hosting its website
violated these two constitutional rights. Defendant
moved for summary judgment on both claims. In its
response, plaintiff offers no argument regarding the
procedural due process claim. The only issue before
the court is whether the disconnection of the modem
hosting plaintiff’s website somehow violated the
First Amendment.
Plaintiff denied none of the facts submitted by
defendant in support of its motion, and offered no
contradictory evidence. For purposes of this motion,
the facts set forth in defendant’s concise statement
are admitted. Local Rule 56.1(f). It is undisputed,
therefore, that the disconnection of the modem was
due to a copyright infringement claim made by a
third party, Kathleen Parker.
Plaintiff’s counsel filed an affidavit attaching
various exhibits, and making certain statements,
none of which have any relevance to the remaining
First Amendment claim. Further, plaintiff spends a
significant amount of time discussing the Digital
Millennium Copyright Act (“DMCA”), and its
procedures. That statute is irrelevant to the First
Amendment claim. For the reasons set forth below
most of the evidence offered by plaintiff is either
not relevant or not evidence and should be stricken.
LEGAL ARGUMENT
1. Motion to Strike Paragraphs 4 Through 13 of
Carreon Affidavit.
Fed. Rule of Civ. Proc. 56(e) requires that opposing
affidavits be made on “personal knowledge,” and set
forth such facts “as would be admissible in
evidence.” In order for evidence to be admissible as
part of a response to a summary judgment motion, it
must be relevant to the claim at issue.
The only issue in this case is whether the City’s
disconnection of a modem, which plaintiff admits was
due to a copyright infringement claim, somehow
violated the First Amendment. Paragraphs 4 through
13 are counsel’s own statements about the size of
American Buddha, what access the site provides, how
plaintiff’s network is managed, what the network
manager does when it receives a DMCA notice, and
that the Ashland Free Press reported critically on
the hiring of Joe Franell, the director of AFN. None
of these assertions have any bearing on the issue
before the court and, therefore, should be stricken
for that reason.
Additionally, although the affidavit states that it
is based on personal knowledge, it fails to
establish the basis of that personal knowledge with
respect to assertions made on behalf of American
Buddha. It is unclear from the affidavit whether Mr.
Carreon is testifying as a lawyer, or testifying as
a witness on behalf of American Buddha. Oregon Rule
of Professional Conduct 3.4 provides that “a lawyer
shall not: (e) in trial “* * * assert personal
knowledge of facts in issue except when testifying
as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness,
or the culpability of a civil litigant * * *.”
Oregon Rule of Professional Conduct 3.7 further
states that a lawyer “shall not act as an advocate
at trial in which the lawyer is likely to be called
as a witness on behalf of the client unless: (1) the
testimony relates to an uncontested issue * * *.”
Under these rules, a lawyer cannot be a witness
regarding any contested fact and a lawyer cannot
rely on hearsay to oppose a summary judgment.
2. Motion To Strike Deposition Testimony Of Joe
Franell.
Portions of Mr. Franell’s deposition testimony
relied on by plaintiff in its Concise Statement of
Facts have no relevance to this case. As set forth
in defendant’s objections to Plaintiff’s Concise
Statement, this testimony should be stricken because
it is not relevant. F.R.E. 401, 402.
3. Motion To Strike Exhibit No. 4.
Exhibit No. 4 is Ashland Fiber Network’s copyright
infringement process as of August 11, 2006. Whether
Ashland Fiber Network had a copyright infringement
process or DMCA policy is not relevant to the First
Amendment claim. Plaintiff did not bring, nor could
it, a claim under the DMCA against the City of
Ashland (Defendant’s Reply, pp. 2-4). The existence
of a process or policy is not relevant to the issues
in the case. For this reason, this exhibit should be
stricken. F.R.E. 401, 402.
4. Motion To Strike Exhibit No. 5.
Exhibit No. 5 is identified as the American Buddha
Online “Sign Up Page.” It has no relevance to the
issue before the court. Therefore it should be
stricken. F.R.E. 401, 402.
5. Motion To Strike Exhibit No. 6.
Exhibit No. 6 is identified as a “Directory of
Service Provider Agents for Notification of Claims
of Infringement.” This document has no relevance to
the First Amendment claim. As set forth above, there
is no claim, nor can there be, any claim under the
Digital Millennium Copyright Act against
defendant. The process by which plaintiff apparently
deals with notifications of claims of infringement
has no relevance to this case. For this reason it
should be stricken. F.R.E. 401, 402.
6. Motion To Strike Exhibit No. 7.
Exhibit No. 7 is an Interim Designation of an Agent
to Receive Notification of Claimed Infringement. For
the same reason that Exhibit No. 6 has no relevance
to this case, Exhibit No. 7 is not relevant as well.
For this reason it should be stricken. F.R.E. 401,
402.
7. Motion To Strike Exhibit No. 9.
Exhibit No. 9 is an email from Rick Holbo to
Infostructure regarding the copyright infringement
claim by Kathleen Parker. Since it is uncontested
that the City disconnected the modem serving
plaintiff’s website because of the copyright
infringement claim, this exhibit has no relevance.
It should therefore be stricken. F.R.E. 401, 402.
8. Motion To Strike Deposition Testimony of Holbo.
Plaintiff offers excerpts from the deposition of
Richard Holbo, the individual who actually
disconnected the modem. The arguments made about
Holbo’s testimony in plaintiff’s Concise Statement
of Facts are not relevant to the claim before the
court.
As Local Rule 56.1(c)(2) provides, a party may
reference “only the material facts which are
necessary for the court to determine the limited
issues presented in the motion for summary judgment
and no others.” Virtually all the Holbo testimony
cited by plaintiff has to do with plaintiff’s
criticism of Holbo’s handling of the copyright
infringement claim, not the actual disconnection
itself. How Holbo dealt with the infringement claim
in terms of a DMCA notice is irrelevant to this
case. Since there is no DMCA claim that can be
brought against the City (or an internet service
provider) and no such claim has been brought,
plaintiff’s criticism of the copyright infringement
response process is not relevant. For this reason,
the testimony from Holbo relied on by plaintiff
regarding these issues should be stricken. F.R.E.
401, 402.
9. Motion To Strike Deposition Testimony Of Mike
Franell.
For the same reasons that the deposition testimony
of Holbo is not relevant, the deposition testimony
of Mike Franell relied on by plaintiff is not
relevant. For this reason, it should be stricken.
F.R.E. 401, 402.
DATED this 15 day of February, 2007.
HOFFMAN, HART & WAGNER, LLP
By: /s/ Karen O’Kasey
Karen O’Kasey, OSB No. 870696
Of Attorneys for Defendant The City of Ashland
(503)222-4499
CERTIFICATE OF SERVICE
I hereby certify that on the 15 day of February,
2007, I served the foregoing DEFENDANT’S MOTION TO
STRIKE EVIDENCE OFFERED IN SUPPORT OF RESPONSE TO
SUMMARY JUDGMENT MOTION on the following party:
Charles Carreon
Online Media Law, PLLC
423 Gateway Drive, #64
Pacifica, CA 94044
by electronic means through the Court’s Case
Management/Electronic Case File system.
/s/ Karen O’Kasey
Karen O’Kasey