MATTHEW D. MURPHEY (SBN: 194111) TROUTMAN SANDERS LLP... · TROUTMAN SANDERS LLP THE CHRYSLER BUILDING 405 LEXINGTON AVENUE NEW YORK, NY 10174-0700 1 2 3 4 5 6 7 8 9 10 11 12 13 14

TROUTMAN SANDERS LLP

THE CHRYSLER BUILDING

405 LEXINGTON AVENUE

NEW YORK, NY 10174-0700

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1072229v1 1 DEC. OF MATTHEW MURPHEY10-CV-1758-DMS (WVG)

MATTHEW D. MURPHEY (SBN: 194111)TROUTMAN SANDERS LLP550 West B Street, Suite 400San Diego, CA 92101Telephone: (619) 557-4310Facsimile: (619) 894-7133Email: [email protected]

Attorneys for PlaintiffBASEBALL QUICK, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

BASEBALL QUICK, LLC, a New Yorkcorporation,

Plaintiff,

v.

MLB ADVANCED MEDIA, L.P., aDelaware corporation, and DOES 1THROUGH 5, INCLUSIVE,

Defendant.

Case No. 10-CV-1758-DMS (WVG)

DECLARATION OF MATTHEW D.MURPHEY IN SUPPORT OF BASEBALLQUICK, LLC’S OPPOSITION TO MOTIONTO TRANSFER VENUE TO SOUTHERNDISTRICT OF NEW YORK

Date: February 25, 2011Time: 1:30 p.m.Judge: Hon. Dana M. Sabraw

I, Matthew D. Murphey, hereby declare that:

1. I am an attorney at law licensed to practice in the State of California, and am a

partner with Troutman Sanders LLP, attorneys for Plaintiff BASEBALL QUICK, LLC (“Baseball

Quick”) in the above-captioned Southern District matter. I have personal knowledge of the

below-stated facts. If called upon as a witness, I could and would competently testify to the

following facts.

2. Baseball Quick filed a Complaint alleging patent infringement against MLB

Advanced Media (“MLB Advanced Media”) on August 23, 2010. Since March 2010, MLB

Advanced Media’s general counsel Mitchell Schwartz and I spoke by telephone numerous times

Baseball Quick, LLC v. MLB Advanced Media. L.P. et al Doc. 34 Att. 1

Dockets.Justia.com

http://dockets.justia.com/docket/new-york/nysdce/1:2011cv01735/376386/

http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2011cv01735/376386/34/1.html

http://dockets.justia.com/




NEW YORK, NY 10174-0700

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regarding Baseball Quick’s infringement claims. After several discussions, Mr. Schwartz

provided me with a proposed non-disclosure agreement in order to continue potential settlement

discussions. As his proposed non-disclosure agreement contained terms that included a several-

year covenant by Baseball Quick not to sue MLB Advanced Media, and a restriction for use of

any information disclosed by MLB, even in litigation, Baseball Quick rejected the agreement. In

December, 2010, Cynthia Franecki, litigation counsel for MLB Advanced Media, provided the

same non-disclosure agreement to my former partner, Gregg Anderson, and me. On December

13, 2010. Mr. Anderson and I modified the non-disclosure agreement and informed Ms. Franecki

Baseball Quick would agree to it and sign it. We never heard from Ms. Franecki again regarding

the non-disclosure agreement. To date, MLB Advanced Media has refused to provide us with

revenue information for MLB Condensed Games, or any other information to facilitate settlement

discussions, which I first (and repeatedly thereafter) requested from Mr. Schwartz in March, 13

2010, and later from Ms. Franecki.

3. In order to facilitate discussions, Baseball Quick granted MLB four separate

extensions in which to tile a responsive pleading. Baseball Quick did so in an attempt to

continued settlement discussions and to permit informal discovery regarding the revenue and

ratings generated by condensed games on MLB.com.

4. MLB did not answer the Complaint until January 3, 2011. (See Docket No. 21.) At

no time during the four-month period of discussions did MLB suggest that it would seek a motion

to transfer venue away from Southern District of California. Ms. Franecki first informed me of

her belief that the case should be transferred in January, 2011. MLB did not file a motion to

transfer venue until after the Court ordered a Neutral Evaluation Conference, along with a

schedule for filing initial disclosures and a Rule 26(f) report.

5. Attached hereto as Exhibit A is a true and correct copy of a Bloomsberg

Businessweek Company Profile for MLB Advanced Media. dated February 7, 2011 .

6. Attached hereto as Exhibit B is a true and correct copy of a Hoovers Profile report

for MLB Advanced Media, L.P.




NEW YORK, NY 10174-0700

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7. Attached hereto as Exhibit C is a true and correct copy a Major League Baseball

Press Release dated July 16, 2009.

8. Attached hereto as Exhibit D is a true and correct copy of “padres.mlb.tv”

subscriptions page dated February 10, 2011.

I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct.

Executed on February 10, 2010 at San Diego, California.

/s/ Matthew D. MurpheyMatthew D. Murphey

EXHIBIT A

February 07, 2011 2:46 PM ETMEDIA

9449 Friars Road

San Diego, CA 92108

United States

Founded in 1969

Phone:

Fax:

619-881-6500

619-497-5339

sandiego.padres.mlb.com

COMPANY OVERVIEW

The San Diego Padres Baseball Club L.P. owns and

operates the San Diego Padres. It is a professional

baseball team that plays in the National Baseball

League. It also operates and manages sports

professionals, amateur teams, clubs, leagues,

associations, and events. The company was founded

in 1969 and is based in San Diego, California. The

San Diego Padres Baseball Club L.P. operates as a

subsidiary of MLB Advanced Media, L.P.

KEY EXECUTIVES

Report content errors on this page

San Diego Padres Baseball Club L.P.

KEY DEVELOPMENTS FOR SAN DIEGO PADRES BASEBALL CLUB L.P.

San Diego Padres Baseball Club L.P. Appoints Dan Migala as Vice President, Creative Partnerships12/2/2010

San Diego Padres Baseball Club L.P. appointed Dan Migala as Vice President, Creative Partnerships. Prior to

this, Dan Migala served as director of the Master of Arts in Sports Administration Program of Northwestern

University School of Continuing Studies.

San Diego Padres Baseball Club L.P. Hire Jed Hoyer as New General Manager to Replace Fired Towers10/24/2009

San Diego Padres Baseball Club L.P. has hired Jed Hoyer as their new general manager. Hoyer, who was in

Boston's front office when the Red Sox won the World Series in 2004 and 2007, is due in San Diego. The 35-

year-old Hoyer emerged as a favourite immediately after the company fired Kevin Towers during the last

weekend of the regular season. Hoyer inherits a young team that floundered for much of the season before

playing well the final two months to finish fourth in the NL West at 75-87. Hoyer was hired by the Red Sox as

assistant to the GM following the 2003 season. He was later promoted to assistant GM, and later was given the

Compensation as of Fiscal Year 2010.

PeopleSnapshot

Age: 54

Mr. Jeffrey Moorad Chief Executive Officer

Mr. Dick Freeman President and Chief Operating Officer

Age: 59

Mr. Fred M. Gerson Chief Financial Officer and Executive Vice President

Mr. David M. Winfield Director

Mr. Jed Hoyer General Manager

Available on the iPad

Page 1 of 4San Diego Padres Baseball Club L.P.: Private Company Information - BusinessWeek

2/7/2011http://investing.businessweek.com/research/stocks/private/snapshot.asp?privcapId=33013965

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title of senior vice-president. Epstein, who spent five seasons working under Towers in San Diego's baseball

operations department, walked away from his job as Boston GM on Halloween 2005.

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EXHIBIT B

MLB Advanced Media, L.P. Profile

75 9th Ave. 5th Fl.New York, NY 10011 United StatesPhone : 212-485-3444Fax : 212-485-3456866-800-1275http://www.mlb.com

WELCOME

Hoover's is the business information resource that delivers a unique combination of up-to-date data, broad coverage,and comprehensive information about companies, decision makers, and industries - along with powerful tools to putthis information to work for your business. Hoover's offers everything you need to successfully:

* Identify and evaluate potential sales leads, markets, and business partners* Deepen relationships with current customers* Assess competitive risks and eliminate threats* Build presentation-ready reports and customized lists of companies, industries, and decision makers

Unlike other business information providers, only Hoover's has a full-time, in-house editorial and research teamdedicated wholly to investigating, pinpointing, authenticating, and analyzing data to provide the most comprehensive,up-to-date information available on companies, industries, and executives.

HIDDEN TEXT TO MARK THE BEGINNING OF THE TOC

PAGE iFeb 04, 2011• •866-541-3770 HOOVERS.COM

Table of Contents

1Company Overview

Key Information 1

Key People 2

2Company Description

3Industry Information

4People

People 5

5Biographies

Robert A. (Bob) Bowman 6

6Competition

Competitors List 6

PAGE iiFeb 04, 2011• •866-541-3770 HOOVERS.COM

Company Overview75 9th Ave. 5th Fl.New York, NY 10011 United StatesPhone : 212-485-3444Fax : 212-485-3456866-800-1275http://www.mlb.com

This company is ready to play ball online. MLB Advanced Media (MLBAM) is the Internet and interactive media armof Major League Baseball (MLB) and operates the league's website, MLB.com. The site offers news, schedules,standings, and statistics from around the league as well as information on each of MLB's 30 teams. The site alsoprovides live audio and video game broadcasts for subscribers. In addition to subscription fees, MLBAM generatesrevenue through advertising and sponsorships, along with ticket sales through its Tickets.com subsidiary. Thebaseball league created MLBAM in 2000 through a unanimous vote of all 30 teams.

Key InformationDUNS Number 007673671Location Type HeadquartersSubsidiary Status YesManufacturer NoCompany Type SubsidiaryPlant/Facility Size (sq. ft.) 12,000.00Owns/Rents OwnsTotal Employees 400Employees At This Location 400Year of Founding or Change in Control 2001Primary Industry 1457:Internet Content ProvidersPrimary SIC Code 89990000:Services, necPrimary NAICS Code 519130:Internet Publishing and Broadcasting and WebLatitude/Longitude 40.741897 / -74.004741

Key People

Name Title

Mr. Robert A. (Bob) Bowman President and CEO

Mr. Edward (Ed) Weber Jr. SVP and CFO

Mr. Noah Garden EVP Commerce and Sponsorship

Mr. Dinn Mann EVP Content

Mr. Kenneth (Kenny) Gersh SVP Business Development

Mr. Joe Inzerillo SVP Multimedia and Distribution

Mr. Matthew Gould VP Corporate Communications

Mr. Billy Hogan VP Corporate Partnerships

Mr. Jason Klein VP Corporate Partnerships, Western Region

Mr. Alexander (Alex) Pigeon VP International Business

PAGE 1Feb 04, 2011• •866-541-3770 HOOVERS.COM

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Company DescriptionThe company's MLB.com At Bat is a mobile application that has become one of the top sports-related downloads(in pay and free versions) from Apple's iTunes store. The company sells the pay version for $14.99; the premiumapplication offers live audio broadcasts, a searchable video archive by team and player, a news archive by team,and in-game video highlights.In other efforts to innovate through new technology, in 2009 MLBAM partnered with the YES Network andCablevision to let Cablevision customers living in the New York Yankees home broadcasting area watch Yankeesgames live on their computers (via the YES Network) for a subscription fee. Time Warner Cable joined the"Yankees on Yes Live Game Streaming" service in 2010. The deal has been touted as the first local streamed gamepackage within a regional sports network's broadcast territory. MLBAM made a similar deal with CoxCommunications and the San Diego Padres in 2009.


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Industry InformationHoover's Industries

> Media

> Internet Content Providers ( primary )> Leisure

> Entertainment> Ticket Sales

Denotes In-depth Industry Insight by Hoover's Editorial Staff

Primary SIC Code89990000 : Services, necPrimary NAICS Code519130 : Internet Publishing and Broadcasting and Web Search Portals


PeopleEmployees

Name Age SalaryTitle Bonus

Mr. Robert A. (Bob)Bowman

-- --55President and CEO

Mr. Edward (Ed) Weber Jr. -- --SVP and CFOMr. Noah Garden -- --EVP Commerce and SponsorshipMr. Dinn Mann -- --EVP ContentMr. Kenneth (Kenny) Gersh -- --SVP Business DevelopmentMr. Joe Inzerillo -- --SVP Multimedia and DistributionMr. Matthew Gould -- --VP Corporate CommunicationsMr. Billy Hogan -- --VP Corporate PartnershipsMr. Jason Klein -- --VP Corporate Partnerships, Western

RegionMr. Alexander (Alex)Pigeon

-- --VP International Business

Ms. Courtney Connors -- --Manager Sponsorship AccountsMr. Scott Norwood -- --Director Corporate PartnershipsAndres Betancur -- --Event PlannerGail Tanedo -- --Interactive Marketing Co-ordinator


BiographiesRobert A. (Bob) Bowman, Age 55

Title held since 2000 : President and CEO

Current Company Titles2000 - Present : President and CEO

Other Company AffiliationsDirector, The Warnaco Group, Inc.

Director, Take-Two Interactive Software, Inc.

Past Company AffiliationsDirector, Grupo Elektra, S.A. de C.V.

Biography

Source : null


Competitors List

Gross Revenue Net ProfitMargin

Net Operating Cash FlowCompany

$3,257.40M $908.20M7.64%AOL

-- ----CBSSports.com (Top Competitor)

-- ----Comcast SportsNet

-- ----ESPN (Top Competitor)

-- ----MSN

$562.26M ($9.30M)(3.55%)RealNetworks

-- ----Time Inc.

$6,460.31M $1,310.35M9.26%Yahoo! (Top Competitor)


EXHIBIT C

Cox Conununications. San Diego Padres and MLB Advanced Media reach agreement enabling customer... Page I of 1

F Official Info

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PRESS RELEASE 06I29r.!Il09 1200 PM ET

Cox Communications, San Diego Padres and MLB Advanced Media reach agreement enabling customers to purchase and watch Padres telecasts live over Broadband

Ticket Info ~ \

Product scheduled to launch for Rockies·Padres game on July 16,2009

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COx Communications. !tie San DieOO Padres and I,1LB Ad\'aroood Media (I,1LBAM), t~ Inlefactive mOOia anCllntemet companV 01 Major l aague Baseball, lOdav annout'ICIId all agreement thai wiI allow W$\OmIIIS who SI.Ib5cribe 10 Cox's br'oa<tl8nd HIgh Speed Internet 86I'V'ce to purdlase a padtage ot Sail Oiego Padrt!!! ~me lelecasls lor live in· market onlille viewing . This landmark agreement si!)nilies 81'1 irnovation .., tho way vIewws ClIIl

watch live proIeuiorIaI sports, by otIering a w e .." marl<e1 !itreamil1g prOdllellhal inc:lu!lel (james with ~llel8vilkin rights.

I)sing 81'1 8UIt>entication process thai wit be enabled and managed by MlBAl,1 and COx. Co. High Speed Inteme1 CU$torners call watch Padres games live on thoir comPlier anywhere in the Padres television market, incloding I'll woric or at -. Pac:i'es lall' eM leam more abo\Jt !tie prodLd and purchaSII the packeoe on web paglll accessible 110m PadrH,com and Cox.oom. The Padl'l'!'5. TV product available for a one-tima file 01 $49,95 kif tt>a remainder oIltle season Of S19,95 lor any 30-day pariod, l$ scheduled 10 iaullf;;h on Thursday, Jl.lIy 16 al 1;00 p_m , (PT) w~h Chal'Wlel4 San Diego's Aockies-f'adres broadcast Where aYllilahle, games wiI be deliwlred ""th high

Mon,,- CDVEIUIGE:

• AIHime sa_ ~ HOIIrrIIn retirH , c.Go hold: Ro. ink Gonz...,. to $110M deal ' Tlger$. Pomy come to IOrms on OIl<)'I'OO' deal • Fund ... tabli$hod '" mttmOf)' 01 Chnslina Groon • F.II Spring T • .;.w,g WOfIlOul dill ... ,_sed • Tribe's AnIOl'l8lll ~ wn.t he'.1Nm8d , WoUl HoIIm.., reI.ed. Mel 0CIIAd pass him in ' I I • He! 51_: Pi.yo< Tracker I Il/og on IaIOllbun ' Mo .. MlB ~II .....

..... • ... ' ...... m

delinition QualiTy picture, IJ$lng rna highest quality live ilntaming pionHred bv MLBAM this yUt in ~s MLB,TV Premium package,

'We arll ~ pleased 10 partner in 1m in1ponaol joint elton to deliYar greater accKs 10 Padret tans witIWI thei" kX<lI lmIrkeI; said Bob DuPuy, PtesiderJt and COO. Major league BasebaU, "The agroomen! presen\$ additional opportuni~es !of lall5 10 81ay oonll8C1ed 10 the Padres white ptOVidlng ItHIm !he ne~bilily and (lOflYeIllence 10 do so when they cannol be at!>olCO Park , San Oiego alfill maf1r.s t~ second I,anchiselo take this signnicalll step by oIIering i ll-market streaming and' expect additional Oub& to IoItow in \!'Ie near IUCure ;

"We're proud to be at the Ioretrom and bfeakiog new ground among p!OfesWiaJ sportS fraoctIisO$ by oIIefing live ilHTl8rket on,~ne YieWing to 0\11' lans; said Tom Gar1inllel, Presil:lanland GOOD! the Sail Diego Padres, 'We're committed 10 ctea~ng more choices lor how our fans experienoe Pad'es baSeball hete 1'1\ PeICO Park and beyond:

"Now eo. ooslorners haYe allDltler 00flYIII'Iien1 way 10 enjo)l Channel" San Diego" award,wmnng COYefagtl ot PadreJi f)aSebai(: said Craig Nichols, Vice President and Gene.a1 Manager ot Channel .. Sin Diego.

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http://pinsburgh.pirates.mlb.comlnews/press_releaseslpress_release.jsp?ymd=20090629&contenC id=559. ,. 21 1012011

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EXHIBIT D

Padres.TV I padres.com: Subscriptions

Ix Watch live and Archived Channel 4 San DiegoBroadcast San Diego Padres Games

HD Quality Picture (where available)

Access to all Channel 4 San Diego-Broadcast San Diego Padres games from within the Padres home television territory

In-Game Highlights and Stats

PC and Mac Compatible

Fadres.TV is currently available lor purchase by any Cox high speed Inlernel cuslomer wilhin lhe Fadres home lelevision lerrilory who has an '@cox.oel" emaij address(each. a 'OualiHed Cox Customer') who activales hiS or her subsc;riplion by accessing Padres.TV Irom a compUler using his Of her Cox high speed Inlerne! cOflnection within !he Padres home !elevision terril0ry within 48 hoUlS aUII\" purchase. You muSI al all times remain a Qualified Cox Customer to activate and continue to use Padres.TV. OTher terms and condi~ons apply. For a tull desCf iPl ion 01 the terms governing Padres.TV clie!<; here.

II you have any questions, pjease conTact Customer Suppon toll tree in the U.S. aT 888-632-5046 or email [email protected].

Padres. TV Blackout Restri ctions:

Out-of-Market Blackout: All Padres.TV games streamed live will be blacked out oulside of the Padres' home lelevision territory and will not be accessible If you attempt 10 access Ihem from outside of such territory. If a game is blacked out in an area. it is not available for live game viewing . These blackout restrictions apply regardless of whether the San Diego Padres are playing at home or away. To find oul whether a Padres game will be available via live

streaming in your current locat ion. enter the zip code of Ihat area here and click Go : eJ

hnp://padreslv.mlb.comlmlb/subscriptions/inmarketiindex.jsp?c_id=sd

Page lof2

2/10/2011

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Documents

MATTHEW D. MURPHEY (SBN: 194111) TROUTMAN SANDERS LLP... · TROUTMAN SANDERS LLP THE CHRYSLER BUILDING 405 LEXINGTON AVENUE NEW YORK, NY 10174-0700 1 2 3 4 5 6 7 8 9 10 11 12 13 14