Case 2:11-cv-10118-GHK-E Document 36

Filed 04/26/12 Page 1 of 5 Page ID #:379

1 KELLEY DRYE & WARREN LLP Michael J. O'Connor (STATE BAR NO. 90017) 2 Andrew W. DeFrancis (STATE BAR NO. 246399) 10100 Santa Monica Boulevard, Twenty-Third Floor Los Angeles, California 90067-4008 3 Telephone: 310) 712-6100 4 Facsimile: 10) 712-6199 moconnor kelleydrye.com 5 adefrancis kelleydrye.com 6 Attorneys for Plaintiffs NZK PRODUCTIONS INC. and 7 HORIZON ALTER. TELEVISION INC. 8 9 10 11 12 NZK PRODUCTIONS INC., a California corporation, and HORIZON 13 ALTERNATIVE TELEVISION INC., a Delaware corporation, 14 Plaintiffs, 15 V. 16 STEPHEN CARBONE, an individual, REALITY STEVE, LLC, a Texas 17 limited liability corporation, and DOES 18 1 through 10, inclusive, 19 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

CASE NO. CV11-10118 GHK (Ex) DECLARATION OF ANDREW W. DEFRANCIS IN SUPPORT OF PLAINTIFFS IN JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO FIRST SETS OF SPECIAL INTERROGATORIES [Notice of Motion and Motion, Joint Stipulation, and [Proposed] Order filed concurrently herewith] DISCOVERY MATTER Fed. R. Civ. P.37; L.R. 37-1, et seq. Hon. Charles F. Eick (U.S. Magistrate Judge) Date: Time: Place: May 18, 2012 9:30 a.m. Courtroom 20

Defendants.

[No discovery cut-off, pretrial conference, or trial dates set]

CV 11-10118 GHK (Ex) DECL. OF ANDREW W. DEFRANCIS ISO PLAINTIFFS IN JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO FIRST SETS OF SPECIAL INTERROGATORIES

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I, Andrew W. DeFrancis, declare as follows: 1. I am an attorney duly admitted to practice before this Court and an

3 associate of Kelley Drye & Warren LLP attorneys of record for Plaintiffs NZK 4 Productions Inc. and Horizon Alternative Television Inc. (collectively, "Plaintiffs") 5 in the above-referenced matter. I make this declaration in support of Plaintiffs in the 6 Joint Stipulation Re: Plaintiffs' Motion to Compel Supplemental Responses to First 7 Sets of Special Interrogatories. I have personal knowledge of the facts set forth 8 herein. If called as a witness, I could and would competently testify to the matters 9 stated herein. 10 2. Attached hereto as Exhibit A, and incorporated herein by this reference,

11 is a true and correct copy of the Complaint filed in this action by Plaintiffs on 12 December 6, 2011. 13 3. Attached hereto as Exhibit B, and incorporated herein by this reference,

14 is a true and correct copy of the Court's Order granting Plaintiffs' ex parte 15 application to conduct jurisdictional discovery. 16 4. Attached hereto as Exhibit C, and incorporated herein by this reference,

17 is a true and correct copy of Plaintiff NZK Productions Inc.'s First Set of Special 18 Interrogatories to Defendant Stephen Carbone, which were served on February 7, 19 2012. 20 5. Attached hereto as Exhibit D, and incorporated herein by this reference,

21 is a true and correct copy of Plaintiff NZK Productions Inc.'s First Set of Special 22 Interrogatories to Defendant Reality Steve, LLC, which were served on February 7, 23 2012. 24 6. Attached hereto as Exhibit E, and incorporated herein by this reference,

25 is a true and correct copy of Defendant Stephen Carbone's Responses to Plaintiff 26 NZK Productions Inc.'s First Set of Special Interrogatories, which counsel for 27 Defendants received on March 12, 2012. 28
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CVII-10118 GHK (Ex) 2 DECL. OF ANDREW W. DEFRANCIS ISO PLAINTIFFS IN JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO FIRST SETS OF SPECIAL INTERROGATORIES

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7.

Attached hereto as Exhibit F, and incorporated herein by this reference,

2 is a true and correct copy of Defendant Reality Steve, LLC's Responses to Plaintiff 3 NZK Productions Inc.'s First Set of Special Interrogatories, which counsel for 4 Defendants received on March 12, 2012. 5 8. Attached hereto as Exhibit G, and incorporated herein by this reference,

6 is a true and correct copy of a letter that I sent to D. Bradley Kizzia on March 15, 7 2012, concerning Defendants' responses to Plaintiff NZK Productions, Inc.'s First 8 Sets of Special Interrogatories. 9 9. D. Bradley Kizzia and I conferred via telephone about Defendants'

10 responses to Plaintiff NZK Productions, Inc.'s First Sets of Special Interrogatories 11 on March 21, 2012. Although Mr. Kizzia informed me that Defendants might 12 supplement some of their responses, he did not indicate the specific responses that 13 they would supplement at that time. 14 10. Attached hereto as Exhibit H, and incorporated herein by this reference,

15 is a true and correct copy of the Court's Order granting Plaintiffs' ex parte 16 application to continue the hearing on Defendants' motion to dismiss by 60 days. 17 11. Attached hereto as Exhibit I, and incorporated herein by this reference,

18 is a true and correct copy of Defendant Stephen Carbone's Supplemental Responses 19 to Plaintiff NZK Productions Inc.'s First Set of Special Interrogatories, which 20 counsel for Defendants received on April 12, 2012. 21 12. Attached hereto as Exhibit J, and incorporated herein by this reference,

22 is a true and correct copy of Defendant Reality Steve, LLC's Supplemental 23 Responses to Plaintiff NZK Productions Inc.'s First Set of Special Interrogatories, 24 which counsel for Defendants received on April 12, 2012. 25 13. Attached hereto as Exhibit K, and incorporated herein by this reference,

26 is a true and correct copy of a printout of a screenshot from a video that Carbone 27 posted on March 31, 2011, in which he discussed the then-upcoming Reality Rocks 28
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CV11-10118 GHK (Ex) 3 DECL. OF ANDREW W. DEFRANCIS ISO PLAINTIFFS IN JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO FIRST SETS OF SPECIAL INTERROGATORIES

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1 Expo at the Los Angeles Convention Center on April 9 and 10, 2011. Carbone also 2 gave away ten (10) free passes to the exposition during this video and indicated that 3 he would be attending the exposition himself A copy of the video itself can be 4 found at http://www.youtube.com/watch?v=Qtr674 BwHc, which I visited on April 5 6 18, 2012. 14. Attached hereto as Exhibit L, and incorporated herein by this reference,

7 is a true and correct copy of a printout of an entry that appears on Defendants' 8 website at http://realitysteve.com/2012/03/27/the-bachelorette-emily-maynard9 bermuda-rosewood-tuckers-point/, dated March 27, 2012, which I visited on April 10 18, 2012. 11 15. Attached hereto as Exhibit M, and incorporated herein by this

12 reference, is a true and correct copy of a printout of a screenshot of a video that 13 appears on Defendants' website at http://realitysteve.com/2012/04/11/realitv-steve14 live-video-blog-thursday-april-11th-9pm-est6pm-pst/, dated April 11, 2012, which I 15 visited on April 18, 2012. 16 16. Attached hereto as Exhibit N, and incorporated herein by this reference,

17 is a true and correct copy of a printout of a screenshot of a video that appears on 18 Defendants' website at http://realitysteve.com/2012/03/29/reality-steve-live-video19 blog-thursday-march-29th-9pm-est6pm-pst/, dated March 29, 2012, which I visited 20 on April 18, 2012. 21 17. Attached hereto as Exhibit 0, and incorporated herein by this reference,

22 is a true and correct copy of a document that Defendant Reality Steve, LLC 23 produced in response to Plaintiff NZK Productions Inc.'s First Set of Requests for 24 Production. 25 18. Attached hereto as Exhibit P, and incorporated herein by this reference,

26 is a true and correct copy of a printout from Google's help page concerning Google 27 Analytics, located at 28
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DECL. OF ANDREW W. DEFRANCIS ISO PLAINTIFFS IN JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO FIRST SETS OF SPECIAL INTERROGATORIES

CV11-10118 GHK (Ex)

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1 http://sunport.google.com/analytics/bin/answer.py?hl en&answer=1144408, which 2 I visited on April 18, 2012. 3 4 I declare under penalty of perjury under the laws of the State of California

5 that the foregoing is true and correct. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Executed April 26, 2012, at Los Angeles, California. /s/ Andrew W. DeFrancis Andrew W. DeFrancis

CVII-10118 GHK (Ex) 5 DECL. OF ANDREW W. DEFRANCIS ISO PLAINTIFFS IN JOINT STIPULATION RE: PLAINTIFFS' MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO FIRST SETS OF SPECIAL INTERROGATORIES