FILE NUMBER:
3MCW01-01
August 23, 2023
Via Electronic Mail Only Via Electronic Mail Only
John S. Gibson
Tamany V. Bentz
Dennis Kiker
Jason T. Lueddeke
Gaspard Rappoport
Benjamin Grush
DLA PIPER LLP
2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, California 90067-4704
Email: john.gibson@usdlapiper.com
Tamany.bentz@usdlapiper.com
Dennis.kiker@usdlapiper.com
jason.lueddeke@us.dlapiper.com
gaspard.rappoport@usdlapiper.com
benjamin.grush@us.dlapiper.com
Jonathan D. Kintzele
Kintzele Law Office
11500 W Olympic Blvd, Ste 400
Los Angeles, CA 90064
Michael P. Brown
Baker & Hostetler LLP
11601 Wilshire Blvd, Ste 1400
Los Angeles, CA 90025
Hector E. Corea
Office of the Los Angeles City Attorney
City Hall East, 200 N. Main St, 7th Floor
Los Angeles, CA 90012
Re: Breaking Code Silence v. McNamara, et al.
CDCA Civil Case No. 2:22-cv-02052-MAA
Dear Counsel,
We write on behalf of our clients, Katherine McNamara and Jeremy Whiteley, pursuant to
Local Rule 7-3, to initiate the meet-and-confer process related to Ms. McNamara’s and Mr.
Whiteley’s forthcoming motions for summary judgment. If you would like to discuss the factual
and legal arguments raised in this correspondence, please contact us at your convenience.
I. THERE ARE NO FACTUAL OR LEGAL GROUNDS TO SUPPORT THE
COMPLAINT’S ALLEGATIONS.
We previously sent correspondence dated June 1, 2022, to those DLA Piper LLP (“DLA
Piper”) attorneys then representing Breaking Code Silence (“BCS”) (the “June 1 Letter”,
JULANDER BROWN
– &BOLLARD –
9110 Irvine Center Drive
Irvine, CA 92618
” 949-350-8527
” 949-477-2100
0 Adam@jbblaw.com
{@ www.JBBLaw.com
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attached as Exhibit 1) advising DLA Piper of our intent to pursue Federal Rule of Civil
Procedure 11 (“Rule 11”) sanctions for filing the Complaint in this action. At that time, BCS and
its counsel almost certainly knew the Complaint contained false statements and allegations
unsupported by facts. See FRCP Rule 11; see also BCS’s Complaint for Damages filed March
28, 2022 (the “Complaint”, attached as Exhibit 2). Also in the June 1 Letter, we requested that
you provide evidence supporting the Complaint’s factual allegations. See June 1 Letter. Up to
now, you have neither provided us nor produced in discovery any evidence that establishes any
factual or legal grounds for the Complaint’s allegations.
A. After Nearly 15 Months of Discovery, the Record of Documents and Testimony
Demonstrates There is Now, as There was in March 2022, Neither a Factual nor
Legal Predicate to Support the Complaint’s Allegations.
Specifically, the evidence establishes the following facts which are contrary to many of
the Complaint’s allegations:
• Most notably, BCS did not “immediately” retain “forensic data privacy experts”
to investigate the unauthorized access1, see Complaint para. 40, but rather relied on its
webmaster and a glorified IT manager. Both the webmaster and the IT manager testified
that they have no training or experience in detecting, investigating, or remediating
unauthorized access to “protected computers.” See 18 U.S.C. § 1030(e)(2)(B); see also
Jesse Jensen Deposition (“Jensen Depo.”) 31:10-45:4 (excerpts attached as Exhibit 3);
NB Deposition (“NB Depo.”) 19:7-24 (excerpts attached as
Exhibit 4).
• As such, no professional forensic investigator, nor any other person with credible
training or experience in the forensic investigation of unauthorized access of protected
computers, made any competent forensic investigation of the alleged unauthorized
access. This would have involved, for instance, conducting analysis that results in the
discovery, collection, and preservation of digital evidence that could have determined
whether someone accessed a BCS protected computer without authorization. That digital
evidence could have also determined whether Ms. McNamara or Mr. Whiteley were the
ones who made the unauthorized access. See Initial Expert Report of Clark Walton
(“Initial Walton Report”), para. 10 (attached as Exhibit 5); see also Supplemental Expert
Report of Clark Walton (“Supp. Walton Report”), para. 52-58 (attached as Exhibit 6); see
also Jensen Depo. 31:10-45:4; 226:7-15; NB Depo. 20:4-18.
• Therefore, not having conducted an effectual investigation, BCS possessed, at the
time it filed the Complaint, no credible, admissible evidence that any BCS protected
computers were actually accessed without authorization, or that Ms. McNamara or Mr.
Whiteley were the ones who gained such access without authorizations. Further, BCS
now continues not to possess any evidence of such unauthorized access, as none was
uncovered during the past 15 months of discovery. See Supp. Walton Report, para. 20-
23, 26, 29, 32, 35-36, 41, 43, 45 and 51; see also Vanessa Hughes Deposition,
1 For purposes of this correspondence, all instances of “unauthorized access” include “exceeding
authorized access.” See 18 U.S.C. § 1030(a)(1).
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Confidential (“Hughes Depo. Conf.”) 48:16 – 25 (excerpts attached as Exhibit 7); Jensen
Depo. 31:10-45:4; NB Depo. 26:9-27:14; 53:2-21; 62:6-63:9; 73:19-25; 82:17-
83:4; 86:4-25; 87:1-14; 100:15-25.
• To the contrary, based on the documents and testimony in this action, and to the
extent a de-indexing even occurred, it is much more likely that BCS triggered its own deindexing.
This was done, possibly inadvertently, by including a “no index” tag in the
HTML code of one of its webpages. Alternately, de-indexing could also have been
caused temporarily by Google because in the days preceding the alleged de-indexing, one
or more BCS volunteers submitted multiple sitemaps for its website that contained errors.
Google may temporarily de-index a website as a security precaution, and submitting
multiple site maps in a short period is one indicator Google uses to detect website
malfeasance and protect security. In this instance, however, BCS had simply submitted
faulty sitemaps. See Jensen Depo. 98:18-24; NB Depo. 99:3-100:25; see also
Supp. Walton Report, para. 20.
• Also based on documents produced by BCS and testimony by BCS’s own PMQ
witness as well as by a former volunteer involved in the so-called “investigation” of the
alleged de-indexing, BCS has not incurred any economic damages due to the alleged
unauthorized access that exceed $5,000 and that are the types of economic damages
included in the definition of “loss” under the Computer Fraud and Abuse Act (the
“CFAA”) and related caselaw. See 18 U.C.S. § 1030(e)(11); Van Buren v. United States,
141 S. Ct. 1648 (2021); Andrews v. Sirius XM Radio, Inc., 932 F.3d 1253 (9th Cir. 2019);
see also Expert Report of Brian Bergmark (“Bergmark Report”), para. 29 (attached as
Exhibit 8); Jensen Depo. 168:8-13; 198:8-11; 210:5-7; 221:17-19; 224:17-19; 229:18-20;
234:11-13; NB Depo. 75:6-22; 76:13-78:17; 84:7-85:1; 90:13-21; 91:24-92:7;
93:15-21.
o For instance, BCS knows of no forensic investigator that ever billed the
organization any amount of money. Further, BCS knows it is “run by volunteers” and
“unable to quantify monetary value of [BCS’s] employees.” See BCS’s 2nd Amended
Responses to Katherine McNamara’s First Set of Interrogatories served January 13,
2022, Interrogatory No. 9.
o Nevertheless, BCS alleges at least $5,000 in loss in its Complaint, which is not
possibly accurate. See Complaint para. 47. The inability to establish at least $5,000
in loss is ultimately fatal to BCS’s CFAA claim.
• Perhaps most damningly, BCS’s own communications demonstrate the
unambiguous intent of its principals, including without limitation, Ms. Hughes and Ms.
Magill, to exact revenge on Ms. McNamara and Mr. Whiteley for perceived wrongs by
filing a lawsuit against them. See, e.g., BCS_0159792; BCS_0570202; BCS_0581149;
BCS_0577638 (attached as Exhibits 9-12); see also BCS_0770556 (attached as Exhibit
13). Ms. Hughes and Ms. Magill opportunistically used the alleged de-indexing as the
auspicious spark for their legal action against Ms. McNamara and Mr. Whiteley, knowing
full well the professional ramifications and the financial, physical, and emotional
suffering our clients would face owing to BCS’s false accusations of unauthorized access
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of a protected computer belonging to a nonprofit with, at least publicly facing, a
worthwhile mission. See Vanessa Hughes Deposition (“Hughes Depo.”) 126:23-127:6
(excerpts attached as Exhibit 14); see also BCS_0570202; BCS_0157578 (attached as
Exhibit 15); CP 010934 – CP 010950 (attached as Exhibit 16); Jensen Depo. 150:3-24;
226:7-15; BCS 0777934 (attached as Exhibit 17).
• Finally, according to the testimony of BCS’s own PMQ witness, BCS already has
affirmatively abandoned at least two of the allegations in the Complaint, i.e., those related
to alleged unauthorized access of BCS’s WordPress-based website and its webhosting
provider account. See Jensen Depo. 186:10-15; 200:17-21.
B. BCS’s Principals Plotted to Sue Ms. McNamara and Mr. Whiteley to Avenge
Perceived Wrongs.
As stated above but worth repeating, BCS and third parties have produced documents
establishing the unambiguous intent and plain malice of BCS’s principals, including Ms. Hughes
and Ms. Magill, in pursuing litigation against Ms. McNamara and Mr. Whiteley. BCS expected
the litigation to be costly for our clients, and possibly yield a large insurance settlement in its
own favor. See, e.g., BCS_0780468 (attached Exhibit 18); CP 010924-010950; BCS_0159792;
BCS_155067. Ms. Magill stated she wanted to ruin Ms. McNamara “financially and social[ly].”
BCS_0770556. Ms. Hughes stated she wanted to “screatch [sic] off all Jer’s flesh.”
BCS_0778859 (attached as Exhibit 19).
• The plotters planned to manufacture nonexistent grounds to support their planned
retributive lawsuit. Ms. NB testified that Ms. Hughes flatly informed her that
Ms. McNamara and Mr. Whiteley had made unauthorized access of a BCS protected
computer, and Ms. NB simply accepted Ms. Hughes’ word as the truth.
NB Depo. 20:4-14; 62:16-19. Mr. Jensen testified that Ms. Hughes apprised him
of the “history” of our clients, such that Mr. Jensen thereafter considered Ms. McNamara
and Mr. Whiteley to be “known hostiles.” See Jensen Depo. 150:17.
o Thereafter, Mr. Jensen did not question Ms. Magill and Ms. Hughes’ assertions,
and proceeded, although not being in any way qualified as computer forensic
investigator or analyst, to conduct his so-called “investigation” already having
decided, based on Ms. Hughes and Ms. Magill’s statements, on the identity of the
“hostile entities”. See Jensen Depo. 114:22-115:15;150:4-152:4; 167:18; 226:7-15.
o Mr. Jensen even testified under oath that he had no regard for determining the
truth of what actually occurred and even during the incident investigation. Mr. Jensen
operated under the erroneous belief that it was up to Ms. McNamara or Mr. Whiteley
to prove to BCS that they did not access any BCS protected computer without
authorization. See Jensen Depo. 101:4-10; 164:13-15.
o As such, no one who was not in a vulnerable position to be strongly influenced by
or deferential to Ms. Hughes and Ms. Magill made an independent or unbiased
investigation of the alleged de-indexing and unauthorized access of a BCS protected
computer. See Jensen Depo. 114:3-21; see also NB Depo. 44:13-23.
Certainly, no one at all who was suitably trained in the forensic analysis of computer
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intrusions conducted any investigation of the allegations of unauthorized access or the
allegations that it was our clients who made that unauthorized access. See id.
• Then BCS found a law firm willing to represent it pro bono, apparently without
conducting any further investigation of BCS’s protected computers to determine the
basis for BCS’s claims, and Ms. Hughes and Ms. Magill were able to finally seek
retribution through a lawsuit against Ms. McNamara and Mr. Whiteley in retaliation, in
part, for raising claims against Ms. Hughes for sexual harassment and discrimination
during their time as BCS volunteers.
• Nevertheless, BCS, through DLA, filed its complaint knowing that Mr. Whiteley
had made public allegations against Hughes and Magill for discrimination just before
they decided to add him to this lawsuit, see BCS_0582136, and has continued to
prosecute it for 17 months despite the wealth of documents and testimony uncovered in
discovery that demonstrate there is no evidence of any unauthorized access, that Ms.
McNamara or Mr. Whiteley made such unauthorized access, or that BCS suffered the
minimum amount of monetary loss required as an element of the statute.
• And even after litigation was initiated, Ms. Hughes attempted to convince BCS’
chief operating officer, RC, to sue Ms. McNamara and split an anticipated
insurance payout with her to facilitate repayment owed to Ms. Papciak as part of a
settlement between her and BCS. See BC Deposition (“Cook Depo.”) 58:17-
60:20 (excerpts attached as Exhibit 20).
C. Our Clients Intend to File an Action for Malicious Prosecution Against Attorneys
Involved in Initiating the Complaint or Continuing the Prosecution.
Taken together, the facts set forth in Sections I.A-B. above demonstrate that BCS had no
reasonable basis or probable cause to file its Complaint and, in fact, made false statements in the
Complaint. See, e.g., Complaint para. 33-39, 43-47. Accordingly, this letter also serves as a
renewal and extension of notice previously provided to Ms. Bentz and Mr. Lueddeke during
telephonic meet and confer conferences on March 6 and 7, 2023, that Ms. McNamara and Mr.
Whiteley intend to file a complaint for malicious prosecution at the conclusion of this litigation,
naming individually each attorney and BCS principals involved in the filing of the Complaint
and/or the continued prosecution of the allegations therein once it became apparent BCS had no
factual predicate or legal basis for its claims. The BCS principals who will be named
individually, including without limitation and subject to change, are Ms. Hughes, Ms. Magill,
and Mr. Jensen.
There is no evidence anyone conducted a competent investigation of BCS’s claims before
the Complaint was filed. Any adequate analysis would have shown BCS’s claims to be factually
and legally insufficient. And based on its lack of evidence establishing monetary loss under the
CFAA, it appears as if no one made a competent analysis of whether BCS could even
demonstrate it satisfied the elements for a civil prosecution under the CFAA.
Specifically, as to those attorneys continuing to pursue this litigation, we presume that by
now, close to the end of discovery, all parties and counsel have:
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• attended or reviewed the depositions of Ms. Hughes, Mr. Jensen, and Ms.
NB, among others, which demonstrate BCS has no reasonable grounds to believe
Ms. McNamara and Mr. Whiteley gained unauthorized access to a BCS protected
computer, see, e.g., Jensen Depo. 111:18-113:22, 100:16-102:12, 192:21-193:14, 223:8-
226:15, 226:7-15; Hughes Depo. 126:23-127:6; NB Depo. 19:7-9; Bill Boyles
Deposition (“Boyles Depo.”) 27:22-31:16, 71:2-72:22, 78:12 -79:17 (excerpts attached as
Exhibit 21); Chelsea Papciak Deposition (“Papciak Depo.”) 41:18-42:7; 65:22-69:10;
72:2-75:9 (excerpts attached as Exhibit 22);
• reviewed the parties’ document productions, which show, inter alia, BCS’s plot to
sue our clients and simultaneously fails to show any unauthorized access of a BCS
protected computer by any person, including Ms. McNamara and Mr. Whiteley, see, e.g.,
BCS_0159792; BCS_0227935 (attached as Exhibit 23);
• attended or reviewed the technical inspection of BCS’s computer assets by Ms.
McNamara and Mr. Whiteley’s forensic expert, at which Mr. Walton found no forensic
evidence of any unauthorized access by any person, including Ms. McNamara and Mr.
Whiteley, see Supp. Walton Report, para. 4;
• reviewed the report of our clients’ forensic expert, a former CIA and FBI cyber
threat analyst as well as a former prosecutor and computer crimes law professor, which
states to a “reasonable degree of forensic certainty” there is no evidence that either Ms.
McNamara or Mr. Whiteley made any unauthorized access of a BCS protected computer,
see Supp. Walton Report, para. 23, 26, 29, 32, 36, 38, 40 and 48;
• and reviewed the report of our clients’ damages expert, wherein a qualified
accountant and expert on business loss states that, based on the evidence reviewed, BCS
cannot possibly meet the statutory requirement of $5,000 in loss, as defined by the
CFAA, see Bergmark Report, para. 29.
After reviewing and analyzing the preceding materials, no reasonable person could
possibly identify factual or legal grounds for continuing to pursue this litigation. Continuing to
litigate therefore constitutes further violation of Rule 11, which provides that once it becomes
clear there is no legal and factual predicate for a lawsuit, the attorney and client must not
continue to prosecute it. See Rule 11.
D. Notice to Preserve Relevant Documents in Advance of Litigation.
PLEASE TAKE NOTICE THAT ALL PERSONS RECEIVING
THIS CORRESPONDENCE MUST PRESERVE ALL
DOCUMENTS AND COMMUNICATIONS POTENTIALLY
RELEVANT TO ANY CLAIM OR DEFENSE IN ANY
FUTURE LITIGATION RAISED HEREIN.
BCS, including all its directors, officers, and other principals, and DLA Piper, including
all individual recipients of this correspondence, even if no longer with, or later departed from,
DLA Piper, are directed to take all steps necessary to preserve documents and communications
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that may be relevant to any claim or defense in a future malicious prosecution action. We note
that in a malicious prosecution action, if the defendant raises the affirmative defense of advice of
counsel, the attorney-client privilege is waived as to those communications. See, e.g., SNK
Corp. of Am. v. Atlus Dream Entm’t Co., Ltd., 188 F.R.D. 566, 571 (N.D. Cal. 1999). In
particular, since at least four DLA Piper attorneys that have worked on the case and advised BCS
have already left, or are departing, DLA, including Mr. Corea, Mr. Kintzele, Mr. Brown, and Ms.
Bentz, DLA Piper must take steps to ensure that their documents and communications are
preserved.
II. PREVIEW OF FACTUAL AND LEGAL ARGUMENTS TO BE ARTICULATED
ON MOTION FOR SUMMARY JUDGMENT AND IN ANTICIPATED
MALICIOUS PROSECUTION LITIGATION.
In addition to the factual and legal arguments articulated above, the following additional
factual and legal grounds support Ms. McNamara’s and Mr. Whiteley’s motions for summary
judgment and anticipated lawsuit for malicious prosecution. Please consider this a preview of
the factual and legal arguments we anticipate raising in our clients’ forthcoming motions for
summary judgment as well as in future malicious prosecution litigation. The following is subject
to change and addition as facts continue to develop.
A. There was No Unauthorized Access of a BCS Protected Computer.
• No witness articulated any reasonable factual predicate to assume that a protected
computer belonging to BCS had been accessed without authorization.
o As discussed above, Mr. Jensen and Ms. NB had no qualifications to
investigate a possible instance of unauthorized access of a BCS protected computer,
and the findings of this investigation were predetermined as they were informed by
Ms. Hughes and Ms. Magill who had ‘hacked’ BCS. See, e.g., Jensen Depo. 31:10-
45:4; 114:3-115:9; 150:4-152:4; 226:7-15; NB Depo. 19:7-24; 62:14-63:9.
o Further, Ms. NB testified that she observed the BCS website was not
appearing in a Google search for “Breaking Code Silence.” NB Depo. 20:25-
21:13.
o Ms. NB also stated that she observed a user who she assumed to be Ms.
McNamara grant Google Search Console access to Mr. Whiteley. NB Depo.
56:19-22; 62:25-63:16. But Ms. NB had no independent factual basis to
assume that Ms. McNamara’s own changes to her domain’s administrators was itself
an unauthorized access of a BCS protected computer. See NB Depo. 74:19-
76:12.
o Like Mr. Jensen, Ms. NB was informed by Ms. Hughes that Ms.
McNamara and Mr. Whiteley were suspected in the alleged unauthorized access.
NB Depo. 62:14-63:9.
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• Ms. McNamara’s and Mr. Whiteley’s expert, Clark Walton, in his examination of
the evidence, found that, to a reasonable degree of forensic certainty, there was no
evidence of unauthorized access of a BCS protected computer.
o Mr. Walton conducted an inspection of BCS’s computer assets and further found
no evidence of unauthorized access of a BCS protected computer.
• What Mr. Walton did find evidence of includes “over 40 ‘alerts’ for the property,
many of which appeared to be unread or unopened, dating back to the time period of the
alleged de-indexing,” and that BCS “seems to put a low level of effort into properly
maintaining its web site’s search engine optimization (‘SEO’) and investigating issues
associated with SEO.” See Supp. Walton Report, para. 21.
• There are a number of alternative possibilities that may have resulted in BCS’s
website being temporarily de-indexed from Google search results and that are supported
by evidence uncovered in discovery, including, for example:
o Someone redesigning BCS’s website added, perhaps inadvertently, a “no index”
tag was added to a webpage on the .org domain. That tag told Google not to index
BCS’s entire website. BCS had been making substantial changes to its website in the
days leading up to the alleged de-indexing and unauthorized access. Most likely,
BCS’s own error caused its own website to temporarily not appear in Google search
results. Importantly, this did not result in BCS’s webpage being inaccessible, and
BCS does not allege such anymore. See Jensen Depo. 181:23-182:21; 201:4-202:5.
o Submitting multiple sitemaps with errors caused Google to temporarily de-index
the site.
o Or, possibly, another BCS volunteer with access to the relevant computer assets
inadvertently or intentionally caused the de-indexing by adding a “no index tag” or by
causing sitemap issues, or by taking some other undiscovered action that caused
Google to temporarily de-index BCS’s website. It appears from the deposition
testimony that no one investigated any other possible suspects besides Ms.
McNamara and Mr. Whiteley. See NB Depo. 20:4-14; 62:16-19; Jensen
Depo. 114:22-115:9.
• Some conduct does not constitute unauthorized access, including (1) not returning
credentials after departing; (2) accessing the administrative end of a domain by the
domain’s owner; (3) assignment of administrative privileges for the domain to a new user
by the domain owner. See LVRC Holdings LLC v. Brekka 581 F.3d 1127, 1132 (9th Cir.
2009) (a defendant’s liability for accessing a computer without authorization does not
turn on whether the defendant breached a state law duty of loyalty to an employer, and
absent evidence of unauthorized use of the credentials to access a computer, the mere
refusal to return the credentials does not amount to intentional access).
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B. No Evidence Exists That Shows Ms. McNamara or Mr. Whiteley Made Any
Unauthorized Access of BCS’s Protected Computers.
• The only indication that Ms. McNamara or Mr. Whiteley accessed a BCS
protected computer without authorization was said by Ms. Hughes to Mr. Jensen during
his investigation of the alleged “attack.” She told him that Ms. McNamara and Mr.
Whiteley had accessed a BCS computer without authorization, and Mr. Jensen believed
her without question or further analysis of his own.
o The .org Domain is owned by Ms. McNamara. See Papciak Depo. 41:18-42:7;
65:22-69:10; see also Hover.com Receipts, 2020-2023 (“Hover Receipts”) (attached
as Exhibit 24).
o BCS did not demand the .org domain from Ms. McNamara when she left so even
if its posture was that it owned the domain, it never explicitly revoked authorization.
See 2022-01-21 – BCS Demand Letter to Katherine McNamara (“BCS’ January 2022
Demand Letter”) (attached as Exhibit 25); See also 2022.02.23 – Unsilenced – Cease
and Desist re. Misappropriation of BCS Assets (“BCS’ February 2022 Demand
Letter”) (attached as Exhibit 26); see also Facebook, Inc. v. Power Ventures, Inc., 844
F.3d 1058 (9th Cir. 2016).
o There was no valid intellectual property assignment of the .org domain from Ms.
McNamara to BCS despite that Ms. Magill, BCS’s CEO, reached out to McNamara to
sign one following Ms. McNamara’s resignation. See DEF-0058280; DEF-0041211
(attached as Exhibits 27-28).
o The .org Domain is in the name of Ms. McNamara. See Hover Receipts.
• Ms. McNamara originally purchased domain with her personal credit card. See
Hover Receipts. Ms. McNamara continues to pay for domain registration. See Hover
Receipts.
o Registrants of domain names have a property right in their domain names. See
Kremen v. Cohen, 337 F.3d 1024, 1029-1030 (9th Cir. 2003); see also G.S. Rasmussen
& Associates, Inc, v. Kalitta Flying Serv., Inc., 958 F.2d 896, 903 (9th Cir. 1992)
(finding that a property right exists when there is an interest capable of precise
definition, it is capable of exclusive possession or control, and the putative owner has
established a legitimate claim to exclusivity).
o Ms. McNamara permitted BCS to access her domain and to temporarily use her
domain as the URL for BCS’s website. But that does not convey ownership.
o Ms. McNamara explicitly revoked Breaking Code Silence’s access to her domain
on 3/18/2022 via demand letter. See 2022.03.18 Letter to BCS (“McNamara’s March
2022 Demand Letter”) (attached hereto as Exhibit 29). Nevertheless, BCS continues
to make use of McNamara’s domain without Ms. McNamara’s current authorization.
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• Mr. Jensen stated at deposition that the DNS TXT Record was likely created and
granted authorization prior to McNamara and Whiteley’s resignations and was not
inherently malicious. See Jensen Depo 55:20-57:9.
• Google Search Console/Google Webmaster Central and Google Admin Central
belong to the domain owner per Google’s terms of service.
o Ms. McNamara was authorized to access both Google Search Console/Google
Webmaster Central and Google Admin Central. See Verify your site ownership,
Google.com, available at:
https://support.google.com/webmasters/answer/9008080?sjid=109158549688048664
19-NA#domain_name_verification&zippy=%2Cdomain-name-provider, last accessed
August 18, 2023.
o Ms. McNamara had received notification from Google of changes to the domain’s
administrative accounts. See McNamara Depo 259:15-260:24.
o She logged in as a precaution, and as a further precaution, as the domain owner,
granted Mr. Whiteley access so that someone else, a third party, could observe what
was happening to Ms. McNamara’s domain.
• As to the allegations in the Complaint related to social media and internet-services
accounts, BCS has produced no documents or communications that constitute
evidence that anyone acquired unauthorized access to those accounts, let alone Ms.
McNamara and Mr. Whiteley. Deposition testimony of BCS’s PMQ witness indicated
there was no investigation of the claims related to the social media and internetservices
accounts, and that he took Ms. Magill’s word for those claims. See, e.g.,
Jensen Depo. 226:7-15.
C. BCS Cannot Establish it Sustained $5,000 in Monetary Losses Under the CFAA,
and Failure to Establish that Element is Fatal to its CFAA Claim.
• The CFAA requires a civil plaintiff to incur $5,000 in monetary loss. See 18
U.S.C. § 1030(e)(11).
• “Loss” is not the same thing as “damages.” See Andrews, supra; Van Buren,
supra. “Loss” must be monetary loss related to investigating or remediating the
unauthorized access. See id.
o As a predicate, there was no unauthorized access, so there can be no loss.
o But assuming for the sake of argument that there was, BCS did not incur any
monetary costs in investigating or mitigating the alleged access. See Bergmark
Report, para. 29.
• All of the persons involved in the investigation and remediation were volunteers
who were not compensated monetarily for their time or services. See Jensen Depo.
167:25-168:13; Hughes Depo. 68:16-69:7; 70:13-71:4; 74:4-13; 75:18-76:21, 79:19-80:6;
514
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August 23, 2023
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85:17-19; 93:2-14; 98:16-22; 105:4-25; 110:20-111:20; 113:10-114:3; see also Van
Buren, supra, 141 S. Ct. 1648; Andrews, supra, 932 F.3d 1253.
o BCS has admitted, through its PMQ Jensen, that it did not hire a forensic
computer expert to investigate at the time of the alleged unauthorized access. Jensen
Depo. 31:16-19.
o BCS has further admitted, through its PMQ Hughes, that it further did not, in the
time between the alleged unauthorized access and her deposition, hire a forensic
computer expert to investigate or remediate the alleged unauthorized access. Hughes
Depo. Conf. 46:11-49:3.
• BCS does not allege that any damages were incurred directly due to an
interruption of service nor as a “loss” in terms of the reasonable cost of restoring data,
programs, systems, or information to its condition prior to the offense. See Andrews,
supra.
o BCS has tried to claim that the Zotero database was “stolen,” but its own
correspondence with Zotero’s support team demonstrates that Zotero adjudicated the
matter finding that Ms. McNamara, having created the database in question, owned
the database. See BCS_0227224. Nevertheless, it is public, and the data is not “lost.”
It is accessible by BCS at any time. See Boyles Depo. 45:9-46:7, NB Depo.
83:14-20, Cook Depo. 100:3-102:8. Hughes admitted in a draft email to Zotero that
the documents linked in the Zotero database – which reside on McNamara’s personal
Google Drive – belong to Ms. McNamara and that Ms. McNamara collected that data.
See BCS_0774553 (attached as Exhibit 30).
III. CONCLUSION
Please do not reply with long dissertations on Rule 11, the federal summary judgment
standard, or the viability of malicious prosecution claims. It is not an efficient use of any parties’
or counsels’ time. We are aware of the existing authority and are confident in our analysis of the
facts and law.
Notwithstanding, if you have factual disputations of anything raised in this
correspondence, and those factual disputations are supported by evidence, please identify it by
Bates number or transcript page and line, as we would be very interested in reviewing that
evidence as soon as possible.
Very truly yours,
M. Adam Tate
Catherine A. Close
Adam J. Schwartz
515
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COO:

She just never stops

Jennifer Magill:

She never will until someone finally gets her convicted in a criminal case or destroyed financially and socially in a civil case.

I am over the age of eighteen and not a party to the within action. I
submit this Declaration in support of the Motion for Summary Judgment filed on
behalf of Defendant JEREMY WHITELEY (“Whiteley”). I have personal
knowledge of the following facts and, if called upon to testify, I can and will
truthfully testify thereto.
2. I am the former Chief Operating Officer (“COO”) of Plaintiff
BREAKING CODE SILENCE (“BCS”). I resigned from BCS on March 4, 2023.
3. On February 16, 2023, while I was the COO of BCS, I participated in a
text conversation with BCS’s President, Jennifer Magill, regarding a United States
Patent and Trademark filing which was filed on behalf of Defendant KATHERINE
MCNAMARA. During the conversation, Ms. Magill expressed her desire to have
Ms. McNamara “criminally convicted” or “destroyed financially and socially in a
civil case.” Attached to the Index of Exhibits as Exhibit 4 is a true and correct copy
of my February 16, 2023 text messages with BCS’s President, Jennifer Magill.
I hereby declare under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct.

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1 essentially, and to talk to Vanessa.
2 Well, I think it was more just “Let’s talk.
3 Let’s talk to Vanessa, because we might have some
4 common ground here” that would lead to us dropping
01:10 5 the lawsuit.
6 Q Do you recall Ms. Kolbe trying to convince
7 you that you should team up with BCS to bring a
8 lawsuit against Katherine McNamara?
9 A Yeah, I believe that was mentioned, yeah.
01:10 10 Q Do you recall Ms. Kolbe trying to convince
11 you that Ms. McNamara has liability insurance that
12 you guys can collectively recover?
13 A I don’t think I remember that. I mean,
14 possibly. It’s been a long time since I’ve read it,
01:10 15 but I don’t — memory is not serving me today.
16 Q Fair enough. Let me show you a document
17 which we will mark as Exhibit Number 91.
18 (Exhibit 91 marked.)
19 THE WITNESS: Sorry, I’m not sure why it’s
01:11 20 not coming up, but I downloaded it. Maybe it’s
21 here.
22 No, hold on one second. Let me try
23 something else.
24 Okay, there we go. All right. I have it
01:11 25 open.
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1 BY MR. TATE:
2 Q Okay. This is one of the documents that
3 you provided to my office in response to the
4 subpoena; correct?
01:11 5 A Uh-huh. Yeah.
6 Q Is this a Facebook — a group of Facebook
7 messages that you pulled from your Facebook account?
8 A Yes.
9 Q And this is also messages that you had with
01:12 10 Ms. Kolbe; correct?
11 A Correct.
12 Q I’m going to draw your attention to
13 page 3 —
14 A Uh-huh.
01:12 15 Q — the second bubble, which appears to be
16 by you. And you state (as read):
17 I mean here — here’s what it
18 comes down to… and forgive my
19 bluntness, but BCS cannot win this
01:12 20 lawsuit. We are not afraid of going
21 to court. The only option BCS right
22 now [sic] is to cover our legal fees
23 and to drop the lawsuit or we go
24 forward, they lose and they will pay
01:12 25 our fees (and potentially damages)
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1 when we win.
2 The lawsuit that you’re referring to here
3 is the lawsuit that BCS filed against you for
4 trademark infringement; correct?
01:12 5 A Correct.
6 Q And what you’re trying to communicate to
7 Ms. Kolbe was that BCS was going to lose that
8 lawsuit and end up having to pay your attorneys’
9 fees; correct?
01:13 10 A Correct.
11 Q If you go onto the next page — well, if
12 you start reading Ms. Athena — Ms. Kolbe’s
13 response, but if you go specifically onto the next
14 page, Ms. Kolbe says (as read):
01:13 15 But that’s why I’m saying I think
16 that you guys should work together
17 to sue Katie because Katie does have
18 money and you both have a good suit
19 against her, and what she did was
01:13 20 wrong. She destroyed everything.
21 And together if you take the
22 evidence you have any evidence BCS
23 has, you guys can win a good case
24 against her. And then she would
01:13 25 have to pay for everybody’s legal
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1 fees because she’s the one that
2 created this problem to begin with.
3 Do you see that?
4 A I do.
01:13 5 Q What was — how did you understand what
6 Ms. Kolbe was telling you?
7 A Exactly how she wrote it there, I
8 understood it.
9 Q So you understood that she was suggesting
01:14 10 that you work with BCS to sue Ms. McNamara so that
11 Ms. McNamara would have to pay for everybody’s legal
12 fees; correct?
13 A I understand that that was her suggestion.
14 Q How did you respond to that suggestion?
01:14 15 A I said that I would give Vanessa the
16 opportunity to speak. We could talk. I allowed
17 that conversation to be started.
18 Q Did she say specifically — Ms. Kolbe
19 state, whether in this message or any other message,
01:14 20 specifically what the — you would be suing
21 Ms. McNamara for?
22 A No.
23 Q At any point was there a conversation of
24 what you would be suing Ms. McNamara for?
01:14 25 A With Athena or other persons?
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1 to pay us within one year our attorneys’ fees back.
2 And whether they recovered it from
3 Katherine or if they got some big donation or
4 whatever, it didn’t matter; there’s only a grace
01:27 5 period of a year.
6 But, ultimately, again, we weren’t able to
7 come to an agreement.
8 BY MR. TATE:
9 Q Did Ms. Hughes ever tell you that she was
01:27 10 willing to share — to pay for your attorneys’ fees
11 out of her recovery from the lawsuit against
12 Ms. McNamara?
13 A The only thing that she’s ever said that
14 she wanted to do, whether she was able to or not, is
01:27 15 to pay for it out of her own pocket. That’s what
16 I’ve heard her say to me.
17 Q I’ll show you the next document in order.
18 We’ll mark it as Exhibit Number 92.
19 THE REPORTER: I think 93.
01:28 20 MR. TATE: 93. Thank you.
21 (Exhibit 93 marked.)
22 BY MR. TATE:
23 Q Go ahead and let me know when you have it
24 open.
01:28 25 A Okay. I have it.
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1 Q Do you recognize this email chain?
2 A Yes.
3 Q Is this an email that you received?
4 A I think. (Witness reviews exhibit.)
01:28 5 I don’t know. It says — it says that it’s
6 Jenna Bulis. And I was on there cc’d. Yeah.
7 I mean, that’s the thing. You ask me what
8 I remember. I don’t remember what I had for lunch
9 yesterday. So an email that was sent to me, you
01:29 10 know, years ago — but, I mean, it’s here. It’s in
11 front of me, so it definitely exists.
12 Q Do you have any reason to doubt that you
13 received this email?
14 A No, I don’t.
01:29 15 Q In the very top portion of this chain, it
16 appears that Ms. Magill says (as read):
17 Hi again.
18 We set up a Slack channel for the
19 four of us to continue discussions
01:29 20 and collaborate on things like this.
21 I sent you both an invite to join,
22 so that should hopefully be in your
23 inbox. There’s also a shared Google
24 Drive pinned at the top of the
01:29 25 channel for file sharing. Please
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1 let me know if you have any
2 questions or if that works for you.
3 Thanks.
4 Do you recall Ms. Magill setting up a Slack
01:30 5 channel for you to communicate with her and other
6 BCS members with?
7 A I do, yes.
8 Q Did you participate in that Slack channel?
9 A I believe so, yeah.
01:30 10 Q Who else was a participant in that Slack
11 channel?
12 A Jenny Magill, Vanessa Hughes, and Jenna
13 Bulis.
14 Q And what can you recall being discussed in
01:30 15 that Slack channel?
16 A I mean, I guess just more ongoing
17 conversations about potential settlement. You know,
18 I did agree to help them with their — you know,
19 strategizing this new lawsuit by giving them
01:30 20 evidence that they were asking for.
21 You know, if — let’s say Jenny asked me,
22 “Hey, do you have anything from RISE? Like any RISE
23 contracts? Or what role did Katie play in RISE,” I
24 was able to go into my RISE folder and take
01:31 25 screenshots or just go ahead and, you know, send it
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1 to her. So I think there was some collaboration
2 based on that.
3 I don’t really have any, like, clear
4 recollection of what we talked about, and,
01:31 5 unfortunately, I wasn’t able to get into that
6 account in order to view that and to collect that
7 record. So, I mean, just going by memory here,
8 generally we were talking about the terms of our
9 settlement and answering questions about evidence
01:31 10 that related to the lawsuit.
11 Q When you say “the lawsuit,” which lawsuit?
12 A The one that they were planning to start
13 against Katie.
14 Q So was it your understanding that as of
01:31 15 February 20- — February 11, 2012 [verbatim], that
16 BCS was planning on bringing a lawsuit against
17 Ms. McNamara?
18 A It is.
19 Q In those conversations did they mention
01:32 20 also suing Jeremy Whiteley?
21 A No.
22 Q When is the first time you heard that BCS
23 was planning to sue Jeremy Whiteley?
24 MS. BENTZ: Objection. Lacks foundation
01:32 25 and assumes facts not in evidence.
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1 A Again, I don’t make the decisions myself.
2 We had one attorney for three co-defendants. We had
3 a meeting with our attorney, and we agreed to go
4 forward with filing the fees.
03:47 5 Q Focusing on Exhibit 109, on the second page
6 you make the statement (as read):
7 Martha still doesn’t trust but
8 Jenna says working with you to get
9 our fees from Katie is a better
03:47 10 option.
11 So, as of April 1, 2022, were you still
12 hoping to get fees from BCS that BCS was going to
13 obtain from Katie McNamara?
14 A Well, I think at that time the conversation
03:48 15 was that we would give them a grace period. That
16 was, you know, the offer on the table, is that we
17 would give them a one-year grace period. Whether
18 they got that from Katherine McNamara or other
19 sources, it was a one-year grace period to pay our
03:48 20 attorneys’ fees.
21 Q And of course Ms. Hughes didn’t — didn’t
22 combat or disagree with the notion that BCS would
23 pay from the money that it recovered from Katie;
24 correct?
03:48 25 A It was a possibility.
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1 Q By this point you were aware that BCS had
2 already filed a lawsuit against my clients; correct?
3 A Let’s see. April 1. Yeah. Yeah, I think
4 so. Yeah, I was already aware.
03:49 5 Q And at some point after the lawsuit was
6 filed did Vanessa Hughes tell you that she was going
7 to recover funds and give them to you?
8 A I think that was still the hope, yeah.
9 Q And she told you that that was her hope;
03:49 10 correct?
11 A We had already had our discussions, and
12 that was the assumption that I was working on, was
13 we would be able to recover some of our funds one
14 way or another, whether that had to do with getting
03:49 15 them from Katherine or getting them from other
16 sources.
17 Either way, the point was to end the
18 lawsuit and not — not apply for fees because we
19 came to a settlement agreement. But ultimately we
03:49 20 did not come to a settlement agreement and we filed
21 for our fees.
22 Q Did Vanessa Hughes tell you that
23 Ms. McNamara had an insurance policy that you could
24 go after?
03:50 25 A I think I’ve heard that. I don’t know if
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1 it was from Vanessa. But, yeah, I have — I have
2 heard that — that, you know, the whole board was
3 told to get — to get insurance. Yeah.
4 Q I could pull it back up, but you recall
03:50 5 Athena Kolbe also telling you that, that if you sue
6 Katie McNamara, you could trigger her insurance?
7 A I don’t remember — I mean, perhaps I got
8 it from Athena. I don’t remember specifically who
9 told me that.
03:50 10 Q Was it ever communicated to you how much
11 BCS was hoping to get from my clients?
12 A No.
13 Q Let me show you the next document in order.
14 We’ll mark it Exhibit 110.
03:50 15 (Exhibit 110 marked.)
16 THE WITNESS: Okay, it’s open.
17 BY MR. TATE:
18 Q Do you recognize this document?
19 A Did this come from Jenny? Jenny Magill?
03:51 20 Or Vanessa?
21 Q It came from BCS. I don’t know who.
22 A Okay. Yeah, I think this was Vanessa
23 Hughes.
24 Q On June 10 did you send your messages with
03:52 25 Vanessa Hughes such that your messages would
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1 Q Are you referring to the fact that BCS was not
2 registered with the California Attorney General?
3 A Yes, that’s correct.
4 Q Do you know why BCS failed to register with the
04:05 5 attorney general?
6 A I do not.
7 Q Do you recall Ms. McNamara having discussions
8 with Ms. Magill and Ms. Hughes about hiring employees?
9 A Yes, there was discussion about hiring
04:06 10 employees.
11 Q So you’ve referenced this a couple times.
12 Do you recall — it’s a more nuanced or narrow
13 question — do you recall the actual conversations that
14 Ms. McNamara had with Ms. Magill and Ms. Hughes on that
04:06 15 subject?
16 A I don’t recall any specific conversations, just
17 the general gist of them.
18 Q What do you recall about the general gist?
19 A Ms. Hughes in particular and to a lesser extent
04:06 20 Ms. Magill wanted to bring on additional staff members.
21 Ms. McNamara and I were concerned about the financial
22 health of the organization and didn’t think that it was a
23 particularly good idea or really justified.
24 Eventually we did agree to bringing on Ms.
04:07 25 but, you know, other staff members we didn’t think were a
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1 and discussions, and Ms. Hughes called me and threatened
2 to sue Ms. McNamara or suggested that she was considering
3 that.
4 Q Did she say on what basis she wanted to sue
04:12 5 Ms. McNamara?
6 A I don’t recall her laying out any specific legal
7 theory. It was more like that she was mad and felt like
8 Ms. McNamara had wronged her, and so she was going to
9 retaliate.
04:13 10 Q And retaliate by suing her; correct?
11 A Retaliate by suing her.
12 Q And I know I’ve asked this before, but to get a
13 nice, clear record, so, before the alleged incidents of
14 hacking, you heard Ms. Hughes threaten to sue both of my
04:13 15 clients; correct?
16 A Both of your clients and several other people
17 besides.
18 Q You and Ms. McNamara, did you both resign on the
19 same day?
04:13 20 A Yes, at the same time.
21 Q Leading up to Ms. McNamara’s resignation, did
22 you assist in removing Ms. McNamara from any BCS
23 accounts?
24 A I did.
04:13 25 Q What did you do?
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A. I did not feel like I was being harassed.
10:20 2 Q. Did you feel you were ambushed by either
3 Katie or Jeremy in that conversation?
10:20 4 A. With the way that things had been spun
5 originally, I did. But after I started looking back over
6 the months, I realized I was not ambushed.
10:20 7 Q. All right. You mentioned that you had a
8 conversation with Miss Hughes after your conversation with
9 Katie and Jeremy.
10:20 10 What was discussed in that conversation?
10:20 11 A. That was a conversation with Miss Magill. I
12 had relayed the events of what had happened that day and
13 then she told me that she and Vanessa had just both been
14 served and then she relayed to me that there was paperwork
15 served to her in relation to the attorney general filings at
16 that time.
10:20 17 Q. At some point did anyone at BCS try to
18 convince you to personally sue Katie or Jeremy?
10:20 19 A. Yes.
10:20 20 MR. BROWN: Objection, vague and — I’m sorry, go
21 ahead.
10:21 22 THE WITNESS: Yes, I was in September of 2022.
10:21 23 Q. (BY MR. TATE) Who tried to convince you to
24 sue my clients?
10:21 25 A. So, I was — at that point it was Vanessa

Hughes and based off of information that Jenny Magill had
2 been relaying to us involving we were doing a demonstration
3 in Utah and meeting with legislators and that day or that
4 evening after the demonstrations, Miss Magill had called me
5 and said, “Hey, our database had been hacked and your story
6 was stolen — your personal story was stolen from out of our
7 database and it was published on Unsilenced’s website with
8 two different watermarks and that the only files that had
9 been gone through were files from the program that I had
10 went to.”
10:22 11 At that point, in further conversations with
12 both Miss Hughes and Miss Magill, I was being told that I
13 should file against them and in those filings I was told
14 that — or in the process of them asking it to be filed,
15 most conversations I had with Miss Hughes, there was at
16 least one conversation of, “Have you found a lawyer yet?
17 Have you found a lawyer yet?”
10:22 18 And she even called me one day regarding
19 another lawsuit that they were involved in and had said, “If
20 you were able to find a lawyer, would you take the personal
21 funds that you went against Miss McNamara and pay off,” I
22 think she asked me to reserve like $40,000 of whatever
23 potential settlement there might be, to pay off funds for
24 another lawsuit from a settlement.
10:22 25 Q. Let me break that down.

Was a request made that you sue my clients
2 and then split the winning with BCS?
10:23 3 MR. BROWN: Objection, misstates testimony,
4 argumentative.
10:23 5 THE WITNESS: The way it started off is I needed to
6 sue her for copyright, interpersonal, her IP infringement,
7 emotional distress.
10:23 8 Then a couple weeks after as I had been
9 researching whether or not this was a valid thing and I had
10 talked to one lawyer who told me it was not valid and that
11 he had no experience in this realm, that I should talk to
12 the lawyers at BCS, which I never did.
10:23 13 It was during that time period when all this
14 was happening that Miss Hughes had called me and asked me
15 to, depending on what the settlement was, to reserve $40,000
16 to pay off Chelsea Filer and Jenna Bulis in another lawsuit
17 that BCS — that they were handling at the time for
18 settlement, so that we could walk away from that and obtain
19 ownership of a website domain that would potentially further
20 Miss Magill and Mrs. Hughes’ case in this situation.
10:24 21 Q. (BY MR. TATE) Got you.
10:24 22 I want to go back to the White House event.
10:24 23 Are you aware of BCS filing an insurance
24 claim against — regarding that incident?
10:24 25 MR. BROWN: Objection, calls for speculation.