Supplemental Joint Stipulation RE: Attorney’s Fees on Defendants Motion to Compel Slack Communications and for Sanctions

4/25/24

Below is the supplemental joint stipulation requested by the Court regarding Whiteley and McNamara’s Motion to Compel and for Sanctions against Breaking Code Silence.

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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
Dirk O. Julander, Bar No. 132313
doj@jbblaw.com
Catherine A. Close, Bar No. 198549
cac@jbblaw.com
M. Adam Tate, Bar No. 280017
adam@jbblaw.com
JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
Irvine, California 92618
Telephone: (949) 477-2100
Facsimile: (949) 477-6355
Attorneys for Defendants
MCNAMARA and
JEREMY WHITELEY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) nonprofit,
Plaintiff,
vs.
MCNAMARA, an
Individual; JEREMY WHITELEY, an
individual; and DOES 1 through 50,
inclusive,
Defendants.
Case No. 2:22-cv-002052-SB-MAA
SUPPLEMENTAL JOINT
STIPULATION RE: ATTORNEY’S
FEES ON DEFENDANTS
MCNAMARA AND
JEREMY WHITELEY’S MOTION
TO COMPEL SLACK
COMMUNICATIONS AND FOR
SANCTIONS
Date of Motion: July 12, 2023
Action Filed: March 8, 2022
Pretrial Conf. Date: March 26, 2025
Trial: Vacated[Assigned to the Hon. Maria A. Audero] Case 2:22-cv-02052-MAA Document 204 Filed 04/25/24 Page 1 of 16 Page ID #:8547
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
TABLE OF CONTENTS
Page
I. INTRODUCTORY STATEMENT…………………………………………………………………………… 1
A. Defendants’ Introductory Statement ………………………………………………………………. 1
B. Plaintiff’s Introductory Statement………………………………………………………………….. 1
II. ISSUES IN DISPUTE…………………………………………………………………………………………….. 1
A. Defendants’ Statement of Issues in Dispute…………………………………………………….. 1
1. Itemization of Attorney’s Fees……………………………………………………………. 1
2. Whether attorneys’ fees expended for time spent on (a) meeting and
conferring, and (b) preparing for and attending at the IDCs related to
the Slack Motion is recoverable under Rule 37(b)(c)(2)…………………………. 1
B. Plaintiff’s Statement of Issues in Dispute ……………………………………………………….. 2
1. Itemization of Attorney’s Fees……………………………………………………………. 2
2. Whether attorneys’ fees expended for time spent on (a) meeting and
conferring, (b) reviewing discovery materials, and (c) preparing for
and attending at the IDCs related to the Slack Motion is recoverable
under Rule 37(b)(c)(2). ……………………………………………………………………… 2
III. PARTIES’ CONTENTIONS AND POINTS AND AUTHORITIES…………………………….. 2
A. Statement of Facts……………………………………………………………………………………….. 2
1. Defendants’ Statement of the Procedural History Since the Original
Joint Statement was Filed…………………………………………………………………… 2
2. Plaintiff’s Statement of the Procedural History …………………………………….. 4
B. Issue No. 1 Itemization of Attorneys’ Fees……………………………………………………… 6
C. Issue No. 2: Whether Attorneys’ Fees Expended for Time Spent in
Connection with the Informal Discovery Conferences and “Meeting and
Conferring” is Recoverable Under Rule 37(b)(c)(2)…………………………………………. 7
1. Defendants’ Contentions and Points and Authorities …………………………….. 7
(a) The Fees Awardable under Rule 37(a)(5) and Rule
37(b)(c)(2) Are Different ………………………………………………………… 7
(b) BCS Violated at Least Two Court Orders………………………………… 10
2. Plaintiff’s Contentions and Points and Authorities………………………………. 11
Case 2:22-cv-02052-MAA Document 204 Filed 04/25/24 Page 2 of 16 Page ID #:8548
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
JOINT STIPULATION OF PARTIES PURSUANT TO LOCAL RULE 37-2
I. INTRODUCTORY STATEMENT
A. Defendants’ Introductory Statement
On April 10, 2024, the Court issued a minute order directing the parties to
submit an updated Joint Statement on the issue of attorneys’ fees for the previously
filed Motion to Compel Slack Communications and for Sanctions (the “Original
Slack Motion”). (Dkt. 200.) As Defendants understand the April 10, 2024 order, the
Court is requesting an itemization of attorney time spent on each type of task, rather
than providing the Court with the total hours expended by each individual on a
comprehensive list of tasks. The Court also informed Defendants that, if they
contend that they should be able to recover fees for the time spent meeting and
conferring and attending informal discovery conferences (“IDCs”), Defendants
should brief that issue. This Joint Statement attempts to address these issues.
B. Plaintiff’s Introductory Statement
The Court’s April 10, 2024, minute order states that Defendants “may not add
more attorneys’ fees than those originally requested in the Slack Motion”. (Dkt.
200.) The fees requested by Defendants in their original Slack Motion included fees
related to (a) preparing for and attending informal discovery conferences, (b)
reviewing Slack productions, (c) meeting and conferring with BCS, and (d)
communicating with clients and other attorneys. [Tate Decl. ¶ 12.] The Court’s
minute order requires that Defendants brief any contention that they were entitled to
such fees under Fed. R. Civ. P. 37(b)(2)(C). BCS will show why fees for such
activities would be improper and unjustified.
II. ISSUES IN DISPUTE
A. Defendants’ Statement of Issues in Dispute
1. Itemization of Attorney’s Fees
2. Whether attorneys’ fees expended for time spent on (a) meeting
and conferring, and (b) preparing for and attending at the IDCs
Case 2:22-cv-02052-MAA Document 204 Filed 04/25/24 Page 3 of 16 Page ID #:8549
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
related to the Slack Motion is recoverable under Rule
37(b)(c)(2).
B. Plaintiff’s Statement of Issues in Dispute
1. Itemization of Attorney’s Fees
2. Whether attorneys’ fees expended for time spent on (a) meeting
and conferring, (b) reviewing discovery materials, and (c)
preparing for and attending at the IDCs related to the Slack
Motion is recoverable under Rule 37(b)(c)(2).
III. PARTIES’ CONTENTIONS AND POINTS AND AUTHORITIES
A. Statement of Facts
1. Defendants’ Statement of the Procedural History Since the
Original Joint Statement was Filed
The history of the parties’ “meet and confer” efforts and what occurred at the
IDCs which predated the Original Slack Motion are set forth in the Original Slack
Motion. (See Dkt. 94.) In the interest of brevity, Defendants will focus this
restatement of the procedural history to the events which transpired after the
Original Slack Motion was filed on July 12, 2023.
On July 14, 2023, and July 18, 2023, BCS produced additional Slack
documents. (Tate Decl., ¶ 3.)
On July 25, 2023, the Court held a Further Status Conference in which Dennis
Kiker represented to the Court that all of the Slack documents had been produced.
The Court set a further telephonic status conference for July 27, 2023 to allow
Defendants an opportunity to review the newly-produced documents and to address
whether the Original Slack Motion was rendered moot. (Tate Decl., ¶ 4; Dkt. 104.)
On July 27, 2023, the Court held the Further Status Conference. During the
conference, Defendants’ counsel informed the Court that BCS’s production of the
Slack documents still was not complete. The Court ordered the parties to meet and
confer and to reconvene again on August 8, 2023. (Tate Decl., ¶ 5; Dkt 106.)
Case 2:22-cv-02052-MAA Document 204 Filed 04/25/24 Page 4 of 16 Page ID #:8550
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
On August 1, 2023, BCS’s counsel sent Defendants’ counsel an email
attaching a “BCS Slack Collection Summary” Excel spreadsheet which showed the
Slack channels BCS had reviewed and collected from. According to BCS’s own
chart, BCS failed to review the vast majority of its private Slack channels for
responsive documents. (Tate Decl., ¶ 6.)
On August 7, 2023, after a further conference of counsel, BCS agreed to
review the private channels that it had not yet searched for documents. (Tate Decl., ¶
7, Ex. 1.)
On August 8, 2023, the parties reconvened for a Status Conference. During
that conference, Defendants’ counsel informed the Court that BCS had not yet
produced all of the Slack documents but was apparently willing to do so. The Court
ordered BCS to complete its production of the Slack documents by no later than
August 18, 2023. To determine whether the Original Slack Motion would be
rendered moot, the Court set a Further Status Conference for August 29, 2023.
(Tate Decl., ¶ 8; Dkt 116.)
On August 29, 2024, the Court held another Status Conference. During the
conference, Defendants’ counsel informed the Court that he had a good faith reason
to believe that BCS still had not finished its production of the Slack documents
despite the Court’s order to do so, but that the parties were conferring and that
Defendants’ counsel was optimistic the issue could be resolved. The Court set a
Further Status Conference for September 12, 2023. (Tate Decl., ¶ 9; Dkt 135.)
On September 8, 2023, BCS finally completed its Slack production. (Tate
Decl., ¶ 10, Ex. 2.)
On September 12, 2023, the Court held another Status Conference regarding
the Slack documents. During the conference, Defendants’ counsel informed the
Court that the production of the Slack documents was finally complete. The Court
took the attorneys’ fees portion of the Original Slack Motion under submission and
rendered the remainder of the Original Slack Motion moot. (Tate Decl., ¶ 11; Dkt.
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
138.)
2. Plaintiff’s Statement of the Procedural History
BCS feels that a more complete and accurate statement of the procedural
history of this motion is necessary for the Court to evaluate the merits of
Defendants’ attorneys’ fees request. As shown below, Defendants repeatedly
attempted to turn a meet-and-confer process into a motion for sanctions, twice filing
improper motions rather than pursuing the Court’s established procedures for
resolving discovery disputes. Certainly, following proper procedures
A prominent eDiscovery and forensics company offered to provide services to
BCS on a pro bono basis for this matter, including the services of a forensic analyst
to collect data for this litigation. [Kiker Decl. ¶ 2.] On February 22, 2023, the
forensic analyst collected what he advised was all of the Slack data available for
collection under BCS’s “Pro” license, which had been provided to BCS at no cost as
a charitable institution. [Id.] On March 23, 2023, Defendants filed a Motion to Compel Compliance with
Court Orders. [Dkt. 44.] The Court held that “the Motion appears to be a disguised
discovery motion…violat[ing] the Court’s pre-motion requirements” and proceeded
to strike the motion in its entirety. [Dkt. 45.] Thereafter commenced a series of
Informal Discovery Conferences (“IDC”) with the Court during which the parties
discussed and negotiated BCS’s responses to discovery. [See Dkts. 52, 54, 56] At
the IDC on May 1, 2023, BCS explained to the court that it had reviewed and
produced all of the Slack documents that its forensic analyst had collected using the
license available to BCS that hit on agreed-upon search terms and produced those
that hit on search terms and were relevant to the litigation. The Court ordered BCS
to produce any remaining relevant, non-privileged Slack documents by May 5,
2023. [Dkt. 56.] This is the first Court order instructing BCS to produce Slack
documents. On May 3, 2023, the Court authorized Defendants to file a motion to
compel discovery. [Dkt. 58.] There is no mention in the order of Slack documents.
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
In compliance with the Court’s May 1, 2023, order, BCS produced additional Slack
documents on May 4, 2023. [Kiker Decl. ¶ 3, Ex. 1.] On June 14, 2023, Defendants filed their motion to compel Slack
communications. [Dkt. 69.] In its initial order regarding the Slack motion, the Court
found that Defendants had failed to “work[] with Plaintiff to prepare a joint
stipulation” in violation of Local Rule 37-2.4, and denied the motion without
prejudice. [Dkt. 72.] Meanwhile, between mid- and late-June, BCS continued to confer with
Defendants and with its forensic analyst about options for collecting Slack
documents that were not previously collected due to BCS’s license limitations. [See
Kiker Decl. ¶ 4, Ex. 2 (extended email exchange between D. Kiker and A. Tate
regarding efforts to collect and produce additional Slack documents).] Defendants filed their Joint Stipulation re: Defendants’ Motion to Compel
Slack Communications on July 12, 2023. [Dkt. 94.] On July 14, 2023, BCS
produced additional Slack documents that its forensic analyst had collected starting
in late June using methods not previously disclosed to BCS. [Kiker Decl.¶ 5, Ex. 3.] On July 25, 2023, the Court held a Further Status Conference during which
BCS advised the Court that it had reviewed and produced all of the Slack documents
that had hit on the parties’ agreed-upon search terms. BCS had, in fact, produced
2,373 documents. [Kiker Decl., ¶ 6, Ex. 4.] After the IDC, Defendants asked BCS to identify the search terms that BCS
had used to identify Slack documents for review. BCS informed Mr. Tate that it has
used the same agreed-upon terms that had been used since the inception of the case.[Kiker Decl., ¶ 7, Exs. 5, 6.] Further, in accordance with the parties’ ongoing efforts to meet-and-confer,
BCS also provided Defendants a complete list of the Slack channels that it had
collected, identifying which had documents that hit on search terms and had been
reviewed. BCS invited Defendants to identify any Slack channels that had not been
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
reviewed (because no documents hit on search terms) and ultimately agreed to
review all of the Slack documents that had not hit on search terms. [Kiker Decl., ¶ 8,
Ex. 7.] Between August 2 and September 5, 2023, BCS and Defendants continued to
meet-and-confer regarding BCS’s ongoing production of Slack documents. [Kiker
Decl., ¶ 9, Exs. 8, 9, 10.] On September 11, 2023, Defendants agreed that BCS had
resolved all outstanding issues regarding Slack productions. [Kiker Decl., ¶ 10, Ex.
11.] B. Issue No. 1 Itemization of Attorneys’ Fees
The Court’s April 10, 2024 order states that “Defendants may not add more
attorneys’ fees than those originally requested in the Slack Motion.” (Dkt. 200.) As
discussed below, Defendants believe that costs associated with the five (5)
IDCs/Status Conferences which were held after the Original Slack Motion was filed,
as well as the associated time spent meeting and conferring, should be recoverable.
Notwithstanding, given the Court’s April 10, 2024 order, Defendants have limited
their analysis to only those fees incurred related to the Original Slack Motion. In the
event that the Court determines that Defendants’ interpretation of the law is correct,
Defendants request the opportunity to present the additional fees.
The Original Slack Motion sought a total of $18,710 in fees. Of this time,
$15,670 was spent drafting the motion/Joint Statement and the remainder was spent
preparing for and attending informal discovery conferences, meeting and conferring,
and otherwise evaluating whether BCS had finally produced all of the Slack
documents. A breakdown of the total time spent by each attorney by task is included
in the Declaration of M. Adam Tate filed concurrently herewith.
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
C. Issue No. 2: Whether Attorneys’ Fees Expended for Time Spent in
Connection with the Informal Discovery Conferences and
“Meeting and Conferring” is Recoverable Under Rule 37(b)(c)(2)
1. Defendants’ Contentions and Points and Authorities
(a) The Fees Awardable under Rule 37(a)(5) and Rule
37(b)(c)(2) Are Different
Generally speaking, Rule 37(a) governs situations where a party has failed to
make a disclosure in response to discovery; whereas Rule 37(b) governs situations
where a party has failed to comply with a court order.
While both Rule 37(a) and 37(b) state that the Court must issue sanctions
against the culpable party, the language regarding what sanctions are awardable
differs. Rule 37(a)(5) provides that the Court must require the party whose conduct
necessitated bringing the motion, its attorney, or both, to pay the movant’s
reasonable expenses “incurred in making the motion.” The statute states (emphasis
added):
If the Motion Is Granted (or Disclosure or Discovery Is
Provided After Filing). If the motion is granted—or if the
disclosure or requested discovery is provided after the
motion was filed—the court must, after giving an
opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the movant’s
reasonable expenses incurred in making the motion,
including attorney’s fees.
Rule 37(b)(2)(c), by contrast, is not limited to expenses incurred in making
the motion. Rather, Rule 37(b)(2)(c) requires the Court to order a party, its attorney,
or both, who has failed to comply with a court order to pay the reasonable expenses,
including attorneys’ fees, “caused by the failure” to comply with the court order.
The statute states (emphasis added):
Payment of Expenses. Instead of or in addition to the
orders above, the court must order the disobedient party,
the attorney advising that party, or both to pay the
reasonable expenses, including attorney’s fees, caused by
the failure, unless the failure was substantially justified or
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
other circumstances make an award of expenses unjust.
A general principle of statutory construction is that where a different language
is used within the same statute, the differences are presumed to have meaning.
Lindsey v. Tacoma-Pierce Cty. Health Dep’t, 195 F.3d 1065, 1074 (9th Cir. 1999).
Defendants submit that the most logical reading of Rule 37 is that (1) under rule
37(a)(5) a party can only recover those fees incurred in bringing a motion, but (2)
under Rule 37(b)(2) a party can recover all of its “reasonable expenses” incurred as
result of the failure to comply with the Court order “instead of or addition to” the
fees awardable under Rule 37(a)(5). Complying with Court ordered “meet and
confer” obligations and attending Court ordered IDCs and Status Conferences are
“reasonable expenses” within the meaning of the statute “in addition to” those
awardable under Rule 37(a)(5).
The Southern District of California’s decision in Sanchez Y Martin, S.A. De
C.V. v. Dos Amigos, Inc., No. 17cv1943-LAB-LL, 2019 U.S. Dist. LEXIS 134739,
at *28 (S.D. Cal. Aug. 9, 2019) is highly instructive and supports Defendants’
interpretation. In Sanchez, the Plaintiff brought several discovery motions. In
analyzing the first of the motions brought under Rule 37(a), the Court noted that
Rule 37(a)(5)(A) only allowed for reasonable expenses “incurred in making the
motion,” and, accordingly, the Court declined to award sanctions for the time spent
on meeting and conferring regarding discovery disputes, and reviewing discovery
responses and document productions since such costs are normal expenses in the
course of litigation. Id. at 27. However, when analyzing the second motion brought
under Rule 37(b)(2)(c), the Court noted that the statute authorized fees “caused by
the failure” to comply with court order. The Court then found that (1) meeting and
conferring, (2) legal research, (3) opposing an ex parte application, and (4) drafting
the motion for sanctions were all “reasonable expenses” under Rule 37(b)(2)(c). Id.
at 28.
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
Defendants acknowledge that there are many cases, including cases within
this Circuit, where Courts have refused to award fees for meeting and conferring or
attending informal discovery conferences under Rule 37(a)(5). However,
Defendants are not aware of any case within this Circuit which has explicitly
reached the conclusion that attending Court ordered IDCs or complying with Court
ordered obligations to meet and confer are not “reasonable expenses” within the
meaning of Rule 37(b)(2)(c). By contrast, there are a handful of cases within this
Circuit where the Court has found that the time spent “meeting and conferring” on
discovery motions is awardable under Rule 37(b)(2)(c) as it is a “reasonable
expense.” See, e.g. Andreoli v. Youngevity Int’l, Inc., No. 16-cv-02922-BTM-JLB,
2019 U.S. Dist. LEXIS 100298, at *25 (S.D. Cal. June 14, 2019) (awarding
attorney’s fees for meet and confer efforts under Rule 37(b)(2)(c)); Premiere
Innovations, Inc. v. Iwas Indus., LLC, No. 07cv1083-BTM (BLM), 2009 U.S. Dist.
LEXIS 142894, at *8 (S.D. Cal. May 8, 2009) (same).
The facts of this dispute are remarkable. As detailed in the Original Slack
Motion, over the course of many months leading up to the Original Slack Motion,
BCS’s story regarding the Slack documents vacillated wildly. BCS first represented
that BCS had already produced “even marginally relevant” Slack documents. (Dkt.
94-1, ¶11, Ex. 5.) BCS then changed its story and claimed that BCS was incapable
of producing the majority of the Slack documents due restrictions with its Slack
license. (Id. at ¶16, Ex. 9.) BCS then changed its story again and claimed that it was
capable of producing the missing documents for an “associated cost” payable to
Slack, but that it had not done so. (Id. at ¶21, Ex. 15.) Finally, BCS stated that it was
supposedly working to produce the missing Slack documents, but refused to provide
any timeline for when the documents would be produced. (Id. at ¶22, Ex. 16.)
After the Original Slack Motion was filed, BCS produced some additional
documents and then expressly represented to the Court that its document production
was complete – when it was not. (Tate Decl., ¶ 4.) The parties were then required to
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
attend four more status conferences just so that the Court could be satisfied that BCS
has finally produced all of the Slack documents. (See Tate Decl., ¶¶ 5, 8-9, 11.) In
total, the Court held seven IDCs/Status Conferences on this motion – five of which
were held after the Original Slack Motion had been filed. 1
The cost to Defendants
to attend these informal discovery conferences was significant and were directly
“caused by the failure” of BCS to produce the Slack documents. (See Rule
37(b)(2)(c).)
(b) BCS Violated at Least Two Court Orders
BCS’s failure to produce the Slack documents resulted in the violation of at
least two Court Orders. First, on September 13, 2022, the Court issued the stipulated
E-Discovery Order (the “EDO”). Among other things, the EDO provides that the
parties would collect documents from each of the data sources identified in Section
4.4, including Slack communications, for each of the custodians listed in Section
4.3. (Dkt. 41, §4.4.) Section 7.1 then provides that “[t]he Parties will produce, on a
rolling basis, ESI from the data sources and Custodians identified in paragraph 4.3
and 4.4” (Id. at §7.1.) Thus, the Court ordered Plaintiff to provide the relevant Slack
communications. As of April 2023, BCS had not produced any Slack documents
whatsoever. (Dkt. 94-1, ¶ 5.) BCS only completed its production of the Slack
documents almost a year after being ordered to do so, and only after it attended
numerous hearings during which its attorneys misrepresented to the Court that the
documents had been produced. (See Tate Decl., ¶¶ 5, 8-9, 11.)
Second, on August 8, 2023, at one of the IDCs/Status Conferences on this
motion, BCS was ordered to complete the production of Slack Documents by no
later than August 18, 2023. (Dkt. 116.) BCS did not finally complete its production
of Slack documents until September 8, 2023. (Tate Decl., ¶ 10.)
1
IDCs were held on April 19, 2023 (Dkt 52), May 1, 2023 (Dkt 56), July 25,
2023 (Dkt 104), July 27, 2023 (Dkt. 106), August 8, 2023 (Dkt 116), August 29,
2023 (Dkt. 135), and September 12, 2023 (Dkt. 138).
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
2. Plaintiff’s Contentions and Points and Authorities
The Court should not award attorneys’ fees for any of the time attributed by
Defendants to “meeting and conferring with opposing counsel”, “communicating
with the clients “preparing for and attending informal discovery conferences prior to
the Original Slack Motion being filed”. As demonstrated by the fact that the Court
had to twice strike Defendants’ putative motions for failure to comply with local
rules requiring the parties to meet-and-confer prior to filing a motion, it is clear that
Defendants have waged a concerted campaign to seek sanctions rather than engage
in a “good faith effort to eliminate the necessity for hearing the motion or to
eliminate as many disputes as possible”. Local Rule 37-1. Discovery disputes are
not uncommon, as is recognized by the Court’s local rules, and those rules place the
responsibility for arranging conferences with the producing party on the moving
party. Id. When the parties met and conferred, particularly with the help of the Court
during IDCs, issues were identified and ultimately resolved. That is the intent and
purpose of the local rules. For Defendants to now request attorneys’ fees for
engaging in a mandatory process intended to avoid motion practice makes no sense
and would undermine the Court’s established process for resolving discovery
disputes.
BCS has from the beginning acted in good faith with regard to its Slack
productions. Relying on the guidance of a pro bono forensics analyst, BCS produced
all the relevant Slack data that the analyst advised was available for collection.[Kiker Decl. ¶ 2.] Once the Court forced Defendants to engage in a meaningful
meet-and-confer process, BCS continued to work with Defendants and its forensic
analyst to identify and produce additional Slack documents. [Kiker Decl. ¶¶ 3-9.] Ultimately, Defendants agreed that all issues related to BCS’s Slack productions had
been resolved. [Kiker Decl. ¶¶ 3-10.] This is how the process is intended to work,
and, with the Court’s help, how it worked in this case.
Furthermore, the Court should not award Defendants for time spent
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
“reviewing the Slack documents”. Obviously, Defendants would have had to review
the Slack documents regardless of when and how they were produced. Any time
reviewing Slack documents2
specifically for purposes of filing any of their many
motions should be encompassed in the time spent drafting those motions.
The Court should also question the hours that Defendants attribute to drafting
their “Original Slack Motion”. Defendants fail to identify whether the claimed hours
are associated with drafting “the Motion [the Court determined] appears to be a
disguised discovery motion…violat[ing] the Court’s pre-motion requirements”, the
motion the Court denied due to Defendants’ failure to “work[] with Plaintiff to
prepare a joint stipulation” in violation of Local Rule 37-2.4, the motion filed after
Defendants finally complied with the Court’s local rules, or all three together. It
would appear to be the latter, as the Defendants have claimed a combined 56.8 hours
for drafting approximately 16 pages of the joint stipulation, but Defendants do not
say. Absent further detail, the Court should reduce the number of hours to a
reasonable minimum.
IT IS SO STIPULATED.
DATED: April 25, 2024 JULANDER, BROWN & BOLLARD
By: /s/ M. Adam Tate
M. Adam Tate
Catherine Close
Attorneys for Defendants
MCNAMARA and
JEREMY WHITELEY
2 Ironically, after the many hours meeting and conferring over Slack
communications, Defendants appear not to have relied on a single document in
filing their motions for summary judgment.
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JOINT STIPULATION RE: MOTION TO COMPEL SLACK COMMUNICATIONS
DATED: April 25, 2024 DLA PIPER LLP
By: /s/ Jason Lueddeke
John Gibson
Jason Lueddeke
Attorneys for Plaintiff
BREAKING CODE SILENCE
ATTESTATION
All other signatories listed, and on whose behalf the filing is submitted,
concur in the filing’s content and have authorized the filing.
/s/ M. Adam Tate
M. ADAM TATE
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CERTIFICATE OF SERVICE ACTIVE\1608947671.1
CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of April, 2024, I electronically filed the
foregoing paper(s) with the Clerk of the Court using the ECF system which will
send notification to all parties of record or persons requiring notice.
/s/ Helene Saller
Helene Saller
Case 2:22-cv-02052-MAA Document 204 Filed 04/25/24 Page 16 of 16 Page ID #:8562