Chen Doc 111

  12345678910111213141516171819202122232425262728  EX PARTE  Application For In Camera Inspection No.   3:12-CV-02396-EMC Paul Duffy (Bar No. 224159)2 N. LaSalle Street, 13 th Floor Chicago, IL 60601Phone: (312) 952-6136E-mail: paduffy@wefightpiracy.com  Attorney for Plaintiff    IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIAAF HOLDINGS LLC, ) Case   No. ) 3:12-cv-2396-EMC   Plaintiff, )v. ) EX PARTE    ) APPLICATION FOR IN CAMERA) INSPECTION OF AFFIDAVIT ) OR OFFER OF PROOF )) Judge: Hon. Edward M. ChenJOE NAVASCA, ) Magistrate Judge: Hon. Nandor J. VadasDefendant. )) ____________________________________) AF Holdings, LLC (“AF Holdings”) hereby applies to this Court for an order granting it leave to submit an affidavit of its principal, Mark Lutz, for in camerainspection to the Court, to determine whether it should be filed publicly. In thealternative, Plaintiff respectfully requests that the Court allow it the opportunity tomake an offer of proof for purposes of establishing whether the reasons for hisabsence from the evidentiary hearing on August 28, 2013 should be made public. The Court on September 5, 2013 denied Plaintiff’s prior request to submit an affidavit under seal and indicated that the principal should have taken further effortsto ensure that he was present at the August 28, 2013 evidentiary hearing. However,Plaintiff is informed and believes that Mr. Lutz was prevented from boarding hisaircraft to travel from Miami Beach, Florida to San Francisco California for reasons Case3:12-cv-02396-EMC Document111 Filed09/11/13 Page1 of 3  12345678910111213141516171819202122232425262728 2  EX PARTE  Application No.   3:12-CV-02396-EMC that were completely unforeseeable to him at the time and entirely beyond his control.Mr. Lutz has informed Plaintiff that he wishes to explain to the Court the reasons for his absence, but the reasons are of a very sensitive nature and would expose Mr. Lutzto undue scrutiny, particularly in this case, where counsel for Defendant hasartificially publicized its importance throughout the country. Undersigned counsel believes in good faith that the Court may determine that the reasons Mr. Lutz is prepared to give to explain his absence were wholly outside of his control andestablish good cause to justify his absence. Plaintiff does not make this requestlightly.At this time, Plaintiff is not seeking in camera review of any affidavit relatingto substantive matters at issue in the evidentiary hearing, and is not seeking leave tofile the affidavit under seal, which the Court has clearly already denied. Plaintiff issolely asking the Court to preliminarily review an affidavit, in camera, in which Mr.Lutz is expected to explain his inability to attend that hearing, for reasons wholly beyond his control. Plaintiff, in the alternative, requests that the Court allow it tomake an offer of proof which Plaintiff believes may allow it to establish that theaffidavit should not be made public. Respectfully submitted,   AF Holdings, LLC  DATED: September 11, 2013 By: s/ Paul A. Duffy   One of its attorneys Paul A. Duffy, Esq.2 N. LaSalle Street13 th Floor Chicago, IL 60602(312) 952-6136 pduffy@pduffygroup.com Case3:12-cv-02396-EMC Document111 Filed09/11/13 Page2 of 3  12345678910111213141516171819202122232425262728 3  EX PARTE  Application No.   3:12-CV-02396-EMC CERTIFICATE OF SERVICE The undersigned hereby certifies that on September 11, 2013, all individuals of recordwho are deemed to have consented to electronic service are being served a true and correctcopy of the foregoing document, and all attachments and related documents, using the Court’s ECF system.   By: s/ Paul A. Duffy   Case3:12-cv-02396-EMC Document111 Filed09/11/13 Page3 of 3