PLAINTIFF’S REPLY ISO MOTION FOR PAYMENT PLAN AND
EXTENSION TO PAY DISCOVERY SANCTIONS
CASE NO. 2:22-CV-002052-SB-MAA
DLA PIPER LLP (US)
WW W.D LA PI PE R. CO M
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JOHN S. GIBSON (SBN 140647)
john.gibson@us.dlapiper.com
DLA PIPER LLP (US)
2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, California 90067-4735
Tel: 310.595.3000
Fax: 310.595.3300
Attorneys for Plaintiff
BREAKING CODE SILENCE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) non-profit,
Plaintiff,
v.
MCNAMARA, an
individual, JEREMY WHITELEY, an
individual, and DOES 1 through 50,
inclusive,
Defendants.
CASE NO. 2:22-CV-002052-SB-MAA
Hon. Maria A. Audero
PLAINTIFF’S REPLY IN
SUPPORT OF MOTION FOR
PAYMENT PLAN AND
EXTENSION TO PAY
DISCOVERY SANCTIONS
AMOUNT [ECF 212] Hearing Date: September 27, 2024
Hearing Time: 10:00 a.m.
Complaint Filed: March 28, 2022
Trial Date: Not Set
Case 2:22-cv-02052-MAA Document 222 Filed 09/13/24 Page 1 of 4 Page ID
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PLAINTIFF’S REPLY ISO MOTION FOR PAYMENT PLAN AND
EXTENSION TO PAY DISCOVERY SANCTIONS
CASE NO. 2:22-CV-002052-SB-MAA
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MEMORANDUM OF POINTS AND AUTHORITIES
In its Motion, BCS established through the Declaration of its CEO, Jennifer
Magill, that BCS has a good-faith intent to make timely payments in connection with
the Court’s July 25, 2024, Order (ECF 212); however, it was unable make that
payment by the deadline due to its dire financial condition and a stagnation of
charitable donations. Defendants’ arguments in Opposition are without merit.
First, BCS presented credible evidence demonstrating that BCS has no means
to timely pay the sanctions amount by the deadline. ECF 218-1 ¶¶ 3, 5. BCS
established that it had no assets and that it was entirely dependent on charitable
donations and volunteer contributions. Id. ¶ 3. Ms. Magill also provided evidence
that certain Internet activities and communications by Defendants, including
statements outside the scope of speech constitutionally protected under the litigation
privilege, are having an adverse effect on BCS’s ability to fundraise, and on her
personally. Id. ¶ 4. This information is important and relevant to the Motion because
it directly impacts BCS’s ability to raise funds and timely satisfy the sanctions
amount.
Second, Defendants do not (and cannot) refute BCS’s statements with any
evidence. Instead, Defendants present only attorney argument to cast the statements
in the Magill Declaration and evidence cited therein concerning statements made
about BCS as “falsehoods” and “lies” that are “irrelevant” to the Motion. ECF 220 at
1. Defendants are wrong. Defendants’ conclusory arguments neglect the public
assertions of fact which appear at breakingcodesilencelawsuit.com. ECF 218-1 ¶ 4;
see Declaration of John S. Gibson, ¶ 2, Exhibit 1. It stands to reason that people will
not donate to BCS while they are taken to such statements when they conduct a search
on Google for “Breaking Code Silence.” Id.
Third, and tellingly, Defendants do not engage BCS’s concerns about the
conduct impacting its ability to raise funds so that it can pay the sanctions amount.
Instead of assuring the Court and BCS that they will not attempt to inhibit BCS’s
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PLAINTIFF’S REPLY ISO MOTION FOR PAYMENT PLAN AND
EXTENSION TO PAY DISCOVERY SANCTIONS
CASE NO. 2:22-CV-002052-SB-MAA
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future fundraising efforts, Defendants argue that BCS should get loans from its board
members and/or its attorneys. The Magill Declaration explains why board members
are already borrowing as much as they can to help BCS. Id. ¶¶ 6-7. And there is no
basis for Defendants to force BCS’s counsel to make a loan to its own client.
For the foregoing reasons and the reasons set forth in the Motion, BCS requests
that the Court enter an Order approving the proposed payment plan and an extension
of the deadline to pay sanctions.
Dated: September 13, 2024 Respectfully submitted,
DLA PIPER LLP (US)
By: /s/ John S. Gibson
John S. Gibson
Attorneys for Plaintiff
BREAKING CODE SILENCE
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PLAINTIFF’S REPLY ISO MOTION FOR PAYMENT PLAN AND
EXTENSION TO PAY DISCOVERY SANCTIONS
CASE NO. 2:22-CV-002052-SB-MAA
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L.R. 11-6.2 CERTIFICATION
The undersigned, counsel of record for Defendants, certifies that this brief
contains 418 words, which complies with the word limit of L.R. 11-6.1.
Date: September 13, 2024 /s/ John S. Gibson
John S. Gibson
DOCID: DOCPROPERTY
DOCXDOCID DMS=IManage
Format=<>\<>
PRESERVELOCATION
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