1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE,
Plaintiff,
v.
MCNAMARA, et al.,

Defendants.
Case No. 2:22-cv-02052-MAA
ORDER DENYING PLAINTIFF’S
MOTION FOR PAYMENT PLAN
AND EXTENSION TO PAY
DISCOVERY SANCTIONS
AMOUNT (ECF No. 218)
I. INTRODUCTION
Before the Court is Plaintiff Breaking Code Silence’s (“BCS”) Motion for
Payment Plan and Extension to Pay Discovery Sanctions Amount (“Motion”).
(Mot., ECF No. 218.) Through the Motion, BCS seeks an order approving a plan it
proposes for payment of the Court’s July 25, 2024 sanctions order for $15,342.00.1

In support of the Motion, BCS filed the Declaration of Jennifer Magill (“Magill
Declaration”). (Magill Decl., ECF No. 218-1.)
1
Plaintiff misstates the Court’s order as $15,432.00. (See generally Mot.) The
correct amount is $15,342.00, which the Court uses throughout its Order. (See
generally ECF No. 212.)
Case 2:22-cv-02052-MAA Document 224 Filed 09/17/24 Page 1 of 9 Page ID
#:9262
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendants McNamara and Jeremy Whiteley (collectively,
“Defendants”) filed an opposition to the Motion (“Opposition”). (Opp., ECF No.
220.) In support of their Opposition, Defendants filed the Declaration of M. Adam
Tate (ECF No. 220-1) and its accompanying Defendants’ Exhibit 1 (Defs.’ Ex. 1,
ECF No. 220-2).
BCS filed a reply to the Opposition (“Reply”). (Reply, ECF No. 222.) In
support of its Reply, BCS filed the Declaration of John S. Gibson (ECF No. 222-1)
and its accompanying BCS Exhibit 1 (ECF No. 222-2).
Having read and considered the papers by the parties and other records in this
case, the undersigned finds the Motion suitable for disposition without a hearing.
See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. On this basis, the Court vacated the
September 27, 2024 hearing date. (ECF No. 223.) For the reasons set forth below,
the Court DENIES the Motion.
II. FACTUAL BACKGROUND
On July 25, 2024, the Court issued an Order Granting in Part and Denying in
Part Defendants’ Motion to Compel Slack Communications and Sanctions (“Slack
Order”). (Slack Order, ECF No. 212.) Through the Slack Order, BCS was ordered
to pay Defendants the sum of $15,342.00 as and for monetary sanctions in
connection with the parties’ Slack document discovery dispute. (Id. at 38.)
2

Payment was due thirty days after the date of the order, or on a different schedule
either by agreement of the parties or further order of the court. (Id.) On July 30,
2024, BCS began negotiations with Defendants regarding a payment plan. (Mot.
3.) Unable to reach an agreement, this Motion followed on August 26, 2024. (See
generally Mot.)
///
2
Pinpoint citations of page numbers in this Order refer to the page numbers
appearing in the ECF-generated headers of the cited documents.
Case 2:22-cv-02052-MAA Document 224 Filed 09/17/24 Page 2 of 9 Page ID
#:9263
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Through the Motion, BCS seeks approval of the payment plan proposed to,
but rejected by, Defendants. (See generally Mot.)3
Specifically, BCS proposes the
following plan:
 An initial cash payment of $2,500.00 on or before September 30, 2024, to be
funded by a BCS Board member who would borrow that amount;
 Quarterly payments of a minimum of 50% of all non-grant funds raised
during the preceding quarter until the balance is paid in full, plus interest on
the payment amount at an annualized rate of 5.5%, supported by a fundraising accounting; and
 The final order of the Court to create a security interest on behalf of
Defendants as to BCS, intended to protect Defendants should BCS dissolve
or file for bankruptcy prior to completing the payment schedule.
(Id. at 3–5.)
BCS explains that this payment plan is necessary because it “finds itself in
dire financial conditions” and must rely fully on its fundraising efforts to pay the
ordered sanction. (Id. at 4–5, n.1.) It explains that it has less than $300.00 in its
bank account, “has no liquid assets or other meaningful investments,” and,
significantly, “relies entirely on volunteers and charitable contributions to continue
to operate.” (Id. at 5.) BCS suggests that the ordered sanctions could be
completely paid in a few quarters if its fundraising efforts are favorable, and points
to positive past fundraising results, including a single donation of $5,000.00. (Id.)
///
///
3
Actually, the payment plan proposed in the Motion is less robust than the payment
plan offered to Defendants in that it proposes an initial cash payment that is fifty
percent (50%) less than that offered to Defendants. (Compare Mot. 3–4 with Defs.’
Ex. 1.) BCS explains that this decrease is due Magill’s inability to secure a loan
she sought to cover one-half of the initial cash payment. (Magill Decl. ¶ 6.)
Case 2:22-cv-02052-MAA Document 224 Filed 09/17/24 Page 3 of 9 Page ID
#:9264
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
III. ANALYSIS
BCS urges the Court to exercise its discretion to set the payment terms of its
ordered sanction, and relies on Burkhardt v. Golden Aluminum, Inc., No. 22-cv01573-NYW-MEH, 2024 U.S. Dist. LEXIS 1368, at *8–10 (D. Colo. Jan. 3, 2024),
in support of this request. But even exercising the discretion exemplified in
Burkhard to consider a payment plan, the Court is unconvinced that BCS’s
proposed plan is acceptable for the following reasons: (1) there is insufficient
credible evidence of BCS’s claimed dire financial circumstances; (2) the proposed
payment plan is illusory; and (3) the payment plan seeks to shift the risk of nonpayment to Defendants. The Court discusses each in turn.
A. There is Insufficient Credible Evidence of BCS’s Claimed Dire
Financial Circumstances.
As a starting point, other than the self-serving Magill Declaration, BCS
offers no evidence of the dire financial circumstances it claims. (See generally
Mot.) It avers it has less than $300.00 in its bank account (Mot. 2) but provides no
bank statement showing this amount (see generally Magill Decl.). It avers that it
has no liquid assets or investments (Mot. 5) but provides no Balance Sheet (see
generally Magill Decl.). It avers that it relies on contributions to operate (Mot. 5)
but provides no Profit and Loss Statement (see generally Magill Decl.).4
Despite
this, BCS argues in its Reply that it, indeed, has “presented credible evidence
4
In connection with its April 2024 motion for voluntary dismissal of the case
pursuant to Rule 41(a)(2), BCS made similar claims of financial duress. (See ECF
No. 198 at 2) (“Proceeding with the litigation under these circumstances would
likely force BCS into bankruptcy or other financial predicament that could end its
existence and prevent it from continuing its mission.”) The Court ordered BCS to
submit, among other evidence in support of that argument, its Balance Sheet and
Profit and Loss Statement. (ECF No. 200 at 3.) BCS did not comply with that
order. (See generally ECF No. 201.)
Case 2:22-cv-02052-MAA Document 224 Filed 09/17/24 Page 4 of 9 Page ID
#:9265
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
demonstrating that BCS has no means to timely pay the sanctions amount by the
deadline.” (Reply 2.) The Court disagrees. And, while BCS offers in its Motion
to submit “additional documentation” in a redacted format (Magill Decl. at 2 n.1), it
fails to do so in its Reply despite Defendants’ explicit challenge to the veracity of
Magill’s assertions. (Opp. 2.) In any event, even if BCS were able to convince this
Court of its claimed financial difficulties, the proposed payment plan is not
acceptable.
B. The Proposed Payment Plan is Illusory.
Other than the initial cash payment of $2,500.00, the plan for payment of the
$12,842.00 balance is illusory. Although BCS argues that it just needs more time
to raise the funds needed to pay the sanctions (Mot.5), it ignores the reality that its
fundraising results turn not only on its ability to raise the funds, but also its
willingness to do so. Both are in question.
First, BCS itself creates doubt as to its ability to raise funds by conceding
that its fundraising has been, and could continue to be, negatively impacted by
Defendants’ criticism of BCS through various social media, including a website
created by Defendants with a domain name “breakingcodesilencelawsuit.com.”
(Magill Decl. ¶ 4; Reply 2.) Although BCS points to one substantial donation of
$5,000.00 in February 2022 as an example of its fundraising prowess (Mot. 5
(citing ECF No. 187-15)), it ignores that this generous donation was made before
the public deterioration of the parties’ relationship and before BCS filed this lawsuit
against Defendants, leaving the Court to question the representative value of that
event to today’s acrimonious state of affairs. Indeed, the current disorder is
punctuated by BCS’s admission that it “has been receiving limited donations” and
that “[i]t 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.’” (Mot. 3; Reply 2.) But while the Court is not unmindful of the
Case 2:22-cv-02052-MAA Document 224 Filed 09/17/24 Page 5 of 9 Page ID
#:9266
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
sorrowful plight the parties have created for themselves and each other through this
and related litigation—previously described by the Court as “mutual assured
destruction”5
—BCS cannot now, after suing Defendants and being aware of the
negative social media as it was taking the intransigent discovery positions that
resulted in these monetary sanctions,6
expect a different result.
Next, BCS does little, if anything, to reassure Defendants and the Court that it
will undertake any efforts to raise the funds to begin with. Indeed, even if
Defendants were to instantly shut down the website that purportedly negatively
impacts BCS’s fundraising, no funds could be raised unless BCS actually made the
effort to raise them. But nowhere in the Motion does BCS offer a plan—let alone a
commitment for which it could be held accountable—for its future fundraising
activities. (See generally Mot.; see generally Reply.)
Blame whom it will for its fundraising struggles, the fact remains that BCS is
so unsure it can deliver on its fundraising promises that conspicuously absent from
5
The Court cautioned the parties in May 2023 that continuing with their discovery
battles (including the battle regarding Slack documents that resulted in the sanctions
at issue here) was an exercise in mutual assured destruction and that nobody would
win from that. (Transcript, IDC 6, ECF No. 85 at 56.)
6
The website BCS complains of—“breakingcodesilencelawsuit.com”—appears to
have been in existence since May 2022. See “We are breaking code silence” (May
21, 2022, 6:35:04 AM), https://www.breakingcodesilencelawsuit.com[http://web.archive.org/web/20220521063504/https://www.breakingcodesilencelaw
suit.com/]. A court “may take judicial notice on its own,” Fed. R. Evid. 201(c)(1),
and “district courts in this circuit have routinely taken judicial notice of content
from the Internet Archive’s Wayback Machine pursuant to this rule.” Metricolor
LLC v. L’oreal S.A., No. 2:18-CV-00364-CAS(Ex), 2020 U.S. Dist. LEXIS
119052, at *23 (C.D. Cal. July 7, 2020); In re Facebook, Inc. Sec. Litig., 405 S.
Supp. 3d 809, 829 (N.D. Cal. 2019); Erickson v. Nebraska Machinery Co., No. 15-
cv-01147-JD, 2015 U.S. Dist. LEXIS 87417, at *4 n.1 (“Courts have taken judicial
notice of the contents of web pages available through the Wayback Machine as
facts that can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned”).
Case 2:22-cv-02052-MAA Document 224 Filed 09/17/24 Page 6 of 9 Page ID
#:9267
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
its offer are any personal guarantees of dollars certain for future installments from
its officers and directors. (See Mot. 3–4.) BCS’s offer to create some unspecified
security interest against itself by operation of a Court order (see id.) lacks even a
modicum of clarity that would compel any meaningful consideration. BCS
provides no explanation of the security interest that would be created, its maturity
date, its interest rate, its priority position over other existing security interests (if
any), and, most importantly given its alleged financial situation, the collateral (if
any) that would back that security. (See id.)
On this basis, the Court finds the proposed payment plan to be illusory.
C. The Proposed Payment Plan Seeks to Shift the Risk of NonPayment to Defendants.
Finally, the Court agrees with Defendants that this payment plan seeks to
shift the risk of non-payment to Defendants. (Opp. 2.) Other than Director
Vanessa Hughes’s proposed contribution of the first $2,500.00, no BCS officer or
director—or anyone else associated with BCS—is willing (or able) to step up and
loan BCS the money to pay this debt on the same terms BCS seeks to impose on
Defendants. Instead, the proposed payment plan, in effect, seeks an order making
Defendants the involuntary lenders to BCS and the unwilling, but obligatory,
underwriters of its debt. This the Court cannot do.
* * *
For the reasons stated above, the Court is unconvinced that BCS’s proposed
payment plan would result in full payment to Defendants in any meaningful period
of time or at all.
///
///
Case 2:22-cv-02052-MAA Document 224 Filed 09/17/24 Page 7 of 9 Page ID
#:9268
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IV. CONCLUSION
On the basis of the foregoing, the Court DENIES BCS’s Motion.
Accordingly, the Court ORDERS as follows:
1. In light of the passage of the original payment deadline on the Court’s
July 25, 2024 Order, the Court hereby EXTENDS the payment due
date to no later than thirty (30) days after the date of this Order.
2. BCS is ORDERED to (a) serve, pursuant to Rule 4, a copy of this
Order on every person who, as of July 25, 2024, held or holds a
position as Member of BCS’s Board of Directors (“Current Board
Member”) or Officer of BCS (“Current Officer”) by no later than
fourteen (14) days after the date of this Order, and (b) file either
(i) a proof of such service, or (ii) an under-oath declaration by the
highest ranking Current Board Member or Current Officer as to why
any such service has not been made, by no later than twenty-one (21)
days after the date of this Order.
3. BCS is ORDERED to (a) serve, pursuant to Rule 4, a copy of this
Order on every person who, subsequent to July 25, 2024, takes or took
on a position as Member of BCS’s Board of Directors (“Future Board
Member”) or Officer of BCS (“Future Officer) by no later than seven
(7) days after such person takes or took on such position, and
(b) file either (i) a proof of such service, or (ii) an under-oath
declaration by the then highest ranking Board Member or Officer as to
why such service has not been made, by no later than fourteen (14)
days after such person takes or took on such position. This is an
ongoing obligation that expires only at such time as BCS has fully
complied with the Court’s July 25, 2024 Order to pay to Defendants
the sum of $15,342.00.
///
Case 2:22-cv-02052-MAA Document 224 Filed 09/17/24 Page 8 of 9 Page ID
#:9269
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4. BCS is hereby cautioned that failure to obey this Order, including
making payment on a timely basis, may result in the imposition of
further sanctions pursuant to Rule 37(b), including treating its
failure to obey this Order as contempt of court. BCS also is
cautioned that instead of or in addition to the above sanctions, the
Court could order BCS, its attorney, or both, to pay the
reasonable expenses, including attorneys’ fees, caused by their
failure to comply with this Order.
5. BCS’s Current and Future Officers and Board Members are
hereby cautioned that, under certain circumstances, they too could
be held personally liable for sanctions, including sanctions for
contempt of court, for BCS’s failure to comply with this Order.
DATED: September 17, 2024

HONORABLE MARIA A. AUDERO
UNITED STATES MAGISTRATE JUDGE
Case 2:22-cv-02052-MAA Document 224 Filed 09/17/24 Page 9 of 9 Page ID
#:9270