Case 2:22-cv-02052-MAA Document 98 Filed 07/14/23 Page 1 of 76 Page ID #:3609

1 Dirk O. Julander, Bar No. 132313
doj@jbblaw.com
2 Catherine A. Close, Bar No. 198549
cac@jbblaw.com
3 M. Adam Tate, Bar No. 280017
adam@jbblaw.com
4 JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
5 Irvine, California 92618
Telephone: (949) 477-2100
6 Facsimile: (949) 477-6355

7 Attorneys for Defendants
KATHERINE MCNAMARA and
8 JEREMY WHITELEY

9

10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12

13 BREAKING CODE SILENCE, a Case No. 2:22-cv-002052-SB-MAA
California 501(c)(3) nonprofit,
14
JOINT STIPULATION RE:
15 DEFENDANTS KATHERINE
16 Plaintiff, MCNAMARA AND JEREMY
WHITELEY’S MOTION FOR
17
EVIDENTIARY, AND MONETARY
18 vs. SANCTIONS UNDER RULE 37 OF
THE FEDERAL RULES OF CIVIL
19
PROCEDURE
20
KATHERINE MCNAMARA, an
21 Individual; JEREMY WHITELEY, an Date of Motion: July 14, 2023
individual; and DOES 1 through 50, Action Filed: March 8, 2022
22 inclusive, Discovery Cut-off: August 30, 2023
23 Pretrial Conf. Date: January 3, 2024
Trial: January 16, 2024
24 Defendants.
25 [Assigned to the Hon. Maria A. Audero] 26
27

28

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1 TABLE OF CONTENTS
2 Page

3
I. INTRODUCTORY STATEMENT…………………………………………………………. 1
4
A. Defendants’ Introductory Statement ………………………………………………. 1
5
1. Introduction……………………………………………………………………….. 1
6
2. Procedural History ……………………………………………………………… 2
7
B. Plaintiff’s Introductory Statement………………………………………………….. 4
8
II. ISSUES IN DISPUTE …………………………………………………………………………… 7
9
A. Defendants’ Statement of Issues in Dispute ……………………………………. 7
10
1. Whether Plaintiff Violated a Court Order by Failing to
11 Collect From All Custodians Listed in the EDO and Lied
to the Court. ………………………………………………………………………. 7
12
2. Whether Plaintiff Violated a Court Order by Failing to
13 Collect From All Data Sources as Required by the EDO. ……….. 7

14 3. Whether Plaintiff’s Violations of the EDO Prejudiced
Defendants. ……………………………………………………………………….. 7
15
4. Whether the Court Should Compel the Production of
16 Documents in the Control of Plaintiff’s Current Officers
and Directors. …………………………………………………………………….. 7
17
5. Whether Plaintiff and its Counsel Should be Sanctioned
18 and the Nature and Scope of Appropriate Sanctions. ………………. 7

19 B. Plaintiff’s Statement of Issues in Dispute ……………………………………….. 7

20 III. PARTIES’ CONTENTIONS AND POINTS AND AUTHORITIES ………….. 7

21 A. Issue No. 1: Whether Plaintiff Violated a Court Order by Failing
to Collect From All Custodians Listed in the EDO and Lied to
22 the Court …………………………………………………………………………………….. 7

23 1. Defendants’ Contentions and Points and Authorities………………. 7

24 2. Plaintiff’s Contentions and Points and Authorities …………………. 9

25 (a) Boyd-King, Saberi, and Hassanpour have never
served on Plaintiff’s Board of Directors, and
26 therefore Plaintiff’s counsel did not misrepresent
their status to the Court. …………………………………………… 10
27
(b) Defendants did not meet and confer on the
28 misrepresentation issue in violation of Local Rule 7-
3 and Civility and Professionalism Guidelines. …………… 10
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1 (c) Silverman does not have any BCS-issued accounts
and Alexander was not on Plaintiff’s Board of
2 Directors during the relevant period…………………………… 12
3 B. Issue No. 2: Whether Plaintiff Violated a Court Order by Failing
to Collect From All Data Sources as Required by the EDO …………….. 15
4
1. Defendants’ Contentions and Points and Authorities …………….. 15
5
(a) Background…………………………………………………………….. 15
6
(b) Plaintiff’s Investigation ……………………………………………. 17
7
(c) Plaintiff’s Violation of the EDO ……………………………….. 19
8
2. Plaintiff’s Contentions and Points and Authorities ……………….. 20
9
(a) Defendants’ insert misrepresent facts and Plaintiff’s
10 position. …………………………………………………………………. 21
11 (b) The EDO does not require the scope of collection
that Defendants are demanding. ………………………………… 21
12
(c) Plaintiff’s ESI collection complied with the EDO
13 and the FRCP………………………………………………………….. 25
14 (d) Plaintiff produced the screenshots taken by Noelle
Beauregard and Jesse Jensen; communications via
15 Signal and personal email are outside of Plaintiff’s
possession, custody, or control. …………………………………. 29
16
C. Issue No. 3: Whether Plaintiff’s Violations of the EDO
17 Prejudiced Defendants ……………………………………………………………….. 33
18 1. Defendants’ Contentions and Points and Authorities …………….. 33
19 (a) Critical evidence has been deleted due to Plaintiff’s
failure to collect from each of the custodians and
20 data sources. …………………………………………………………… 33
21 (b) Critical evidence is also being withheld……………………… 35
22 (c) Efforts to Resolve the Issue. ……………………………………… 35
23 2. Plaintiff’s Contentions and Points and Authorities ……………….. 35
24 (a) Plaintiff preserved and produced screenshots taken
by Noelle Beauregard and Jesse Jensen. …………………….. 36
25
(b) Plaintiff produced communications from
26 custodians’ personal email accounts and will
produce communications from Dr. Hughes’
27 personal Signal account. …………………………………………… 40
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1 D. Issue No. 4: Whether the Court Should Compel the Production of
Documents in the Control of Plaintiff’s Current Officers and
2 Directors …………………………………………………………………………………… 42
3 1. Defendants’ Contentions and Points and Authorities …………….. 42
4 2. Plaintiff’s Contentions and Points and Authorities ……………….. 45
5 (a) Defendants’ request is not authorized by the EDO. ……… 46
6 (b) Personal accounts are not in Plaintiff’s possession,
custody, or control. ………………………………………………….. 47
7
E. Issue No. 5: Whether Plaintiff and its Counsel Should be
8 Sanctioned and the Nature and Scope of Appropriate Sanctions ……… 52
9 1. Defendants’ Contentions and Points and Authorities …………….. 52
10 (a) Plaintiff has Violated Multiple Court Orders. ……………… 52
11 (b) Plaintiff’s Discovery Abuses are Causing Prejudice. …… 54
12 (c) The Requested Evidentiary Sanctions. ……………………….. 56
13 (d) Monetary Sanctions are Also Appropriate. …………………. 57
14 (e) Efforts to Resolve the Issue. ……………………………………… 57
15 2. Plaintiff’s Contentions and Points and Authorities ……………….. 57
16 (a) Plaintiff did not violate any court order. …………………….. 58
17 (b) Plaintiff has not prejudiced Defendants. …………………….. 63
18 (c) The requested evidentiary sanctions are
unwarranted, but in any event are overbroad and
19 abusive. ………………………………………………………………….. 64
20 (d) The requested monetary sanctions are unwarranted. ……. 66
21

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1 TABLE OF AUTHORITIES
Page
2

3 CASES

4 A. Farber & Partners, Inc. v. Garber
234 F.R.D. 186, 189 (C.D.Cal.2006) ………………………………………………………………………. 42
5
Allen v. Woodford
6 2007 WL 309945, at *2 (E.D.Cal.2007) …………………………………………………………….. 43, 50

7 Am. Career College, Inc. v. Medina
2022 WL 3452790, at *4 (C.D. Cal. July 6, 2022) ………………………………………………. 38, 58
8
AMC Tech., LLC v. Cisco Sys., Inc.
9 2013 WL 3733390 (N.D. Cal. July 15, 2013) …………………………………………………………… 64

10 ASSE Int’l, Inc. v. Kerry
223 F. Supp. 3d 996, 1001 (C.D. Cal. 2016) ………………………………………………. 9, 20, 36, 58
11
Edwards v. Junior State of America Foundation
12 (E.D. Tex., Apr. 23, 2021, No. 4:19-CV-140-SDJ) 2021 WL 1600282 ……………………….. 55

13 Glob. Music Rts., LLC v. Radio Music License Comm., Inc.
No. CV 16-9051 TJH (ASX), 2020 WL 10692695, at *2 (C.D. Cal. Aug. 3, 2020) ………. 34
14
Gray v. Faulkner
15 148 F.R.D. 220, 223 (N.D.Ind.1992) ………………………………………………………………………. 42

16 Hemphill v. Wright Family, LLC
234 Cal. App. 4th 911, 915 (2015) …………………………………………………………………….. 24, 46
17
Hill v. Eddie Bauer
18 242 F.R.D. 556, 560 (C.D. Cal. 2007) …………………………………………………………………….. 42

19 Hous. Rights Ctr. v. Sterling
No. CV 03-0859, 2005 WL 3320739, at *3 (C.D. Cal. Mar. 2, 2005)………………………….. 34
20
Hyde & Drath v. Baker
21 24 F.3d 1162, 1171 (9th Cir. 1994) …………………………………………………………… 9, 20, 36, 58

22 In re Citric Acid Litigation
191 F.3d 1090, 1107 (9th Cir. 1999) …………………………………………………………………. passim
23
Int’l Longshore & Warehouse Union v. ICTSI Oregon, Inc.
24 2018 WL 6305665, at *3 (D. Or. Dec. 3, 2018) ………………………………………………….. passim

25 JPMorgan Chase Bank, N.A. v. KB Home
No. 2:08-CV-1711-PMP-RJJ, 2010 WL 1994787, at *5 (D. Nev. May 18, 2010)……. 43, 50
26
Local.com Corp. v. Fry’s Elecs. Inc.
27 2013 WL 12139096, at *1 (C.D. Cal. Feb. 22, 2013) ………………………………………………… 26

28

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1 Lopez v. Florez
2013 WL 1151948, * 2 (E.D. Cal. March 19, 2013) ………………………………………………….. 42
2
Matter of Skanska USA Civ. Se. Inc., No. 3:20-CV-05980-LC/HTC, 2021 WL 4953239, at
3 *4 (N.D. Fla. Aug. 5, 2021) ……………………………………………………………………………… 44, 51

4 Matthew Enterp., Inc. v. Chrystler Group LLC
2015 WL 8482256, at *4 (N.D. Cal. Dec. 10, 2015) …………………………………. 27, 39, 40, 47
5
Miniace Pacific Maritime Ass’n
6 2006 WL 335389, *2 (N.D. Cal. Feb. 13, 2006) ………………………………………………….. 43, 50

7 Nat’l Hockey League v. Metro. Hockey Club, Inc.
427 U.S. 639, 643 (1976) ………………………………………………………………………………………. 52
8
Patagonia, Inc. v. Anheuser-Busch, LLC
9 2020 WL 12175722, at *1 (C.D. Cal. Feb. 26, 2020) ……………………………………… 13, 14, 23

10 Pierce v. Underwood
487 U.S. 552, 565 (1988) ………………………………………………………………………… 9, 20, 36, 58
11
Reinsdorf v. Sketchers U.S.A., Inc.
12 296 F.R.D 604, 615 (C.D. Cal. 2013) ………………………………………………………………… 13, 22

13 Riddick v. AT&T
2017 WL 85829 at *1 (E.D. Cal. Jan. 9, 2017) ……………………………………………………. 31, 40
14
Rogers v. Giurbino
15 288 F.R.D. 469, 485 (S.D. Cal. 2012) ……………………………………………………………………… 42

16 Thermal Design, Inc. v. Am. Soc. of Heating, Refrigerating and Air-Conditioning Eng.,
Inc.
17 755 F.3d 832, 836 (7th Cir. 2014) …………………………………………………………………….. passim

18 Thompson v. Costco Wholesale Corp.
2015 WL 13935273 at *2 (S.D. Cal. Sept. 21, 2015) ……………………………………… 13, 14, 23
19
Tradeshift, Inc. v. BuyerQuest, Inc.
20 No. 20-CV-01294-RS (TSH), 2021 WL 1586283, at *2 (N.D. Cal. Apr. 23, 2021) ………. 44

21 U.S. v. Int’l Un. of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th
Cir. 1989) ……………………………………………………………………………………………………… passim
22
Waymo LLC v. Uber Techs., Inc.
23 2017 WL 2972806, at *2 (N.D. Cal. July 12, 2017) ……………………………………….. 43, 44, 51

24 Wyle v. R.J. Reynolds Indus., Inc.
709 F.2d 585, 589 (9th Cir. 1983) …………………………………………………………………………… 52
25

26
27

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1 STATUTES

2 Fed. R. Civ. Proc. R. 26 ………………………………………………………………………………………… 22, 25, 50

3 Fed. R. Civ. Proc. R. 34 ……………………………………………………………………………………………… 14, 32

4 Fed. R. Civ. Proc. R. 37 …………………………………………………………………………………………….. passim

5

6 OTHER AUTHORITIES

7 C.D. Cal. Civility & Prof. Guidelines § 8 ………………………………………………………………… 12, 30, 31

8 Restatement (Third) of Agency
§ 8.09(2) (2005)……………………………………………………………………………………………………. 43
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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27

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1 JOINT STIPULATION OF PARTIES PURSUANT TO LOCAL RULE 37-2
2 I. INTRODUCTORY STATEMENT
3 A. Defendants’ Introductory Statement
4 1. Introduction
5 One of the primary allegations against Defendants (and virtually the only
6 allegation against Jeremy Whiteley) is that Defendants were responsible for “de-

7 indexing” the breakingcodesilence.org domain (the “.ORG Domain.”) from Google

8 Search. To date, Plaintiff has failed to produce any evidence supporting this theory

9 beyond pure conjecture. Defendants strongly believe that the actual reasons why

10 Plaintiff brought this action is (1) because Defendants had the audacity to complain

11 about being harassed by Plaintiff’s board president, Vanessa Hughes (“Hughes”),

12 and (2) Dr. Hughes believed that Plaintiff could obtain a windfall by bringing a

13 frivolous action against Defendants through pro bono attorneys.

14 In order to uncover the true reasons for the instant lawsuit, Defendants are
15 entitled to know everything about Plaintiff’s investigation into why the .Org Domain

16 was allegedly not appearing on Google Search. Unfortunately, Plaintiff is preventing

17 critical evidence relating to this investigation from being discovered. Among other

18 things, Plaintiff failed to produce the original screenshots taken during its

19 “investigation,” and has also failed to produce many of the communications between

20 Plaintiff’s leadership team.

21 Plaintiff’s justification for failing to produce such documents is that if a
22 responsive document is located on a personal data source (such as an email account,

23 computer, or cell phone) of one of its officers and directors, that document is beyond

24 Plaintiff’s control, and therefore, it need not be produced. Other district courts

25 within the Ninth Circuit have rejected similar arguments as “nonsense.” Defendants

26 respectfully submit that the Court should do the same, order the production of the
27 withheld documents, and sanction Plaintiff and its counsel, DLA Piper, for failing to

28 comply with their discovery obligations and for violating several court orders.

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1 2. Procedural History
2 On April 19, 2023, the parties attended the first of the IDCs relating to this
3 Motion (“IDC 3”). Following the IDC, the Court issued an order requiring Plaintiff

4 to provide a chart that lists the custodians identified in Section 4.3 of the EDO on

5 one axis and the sources of documents/data identified in Section 4.4 of the EDO on

6 the other axis and indicate whether or not the particular data sources had been

7 searched for each custodian. (Close Decl., Ex. 18 [Dkt. 52].)

8 On April 24, 2023, Plaintiff provided the requested chart. (Tate Decl., ¶ 8, Ex.
9 5.) According to the chart, BCS did not collect anything from Lenore Silverman,

10 Apryl Alexander, Denette Boyd-King, Dorit Saberi, or Dee Anna Hassanpour. (Tate

11 Decl., ¶ 8, Ex. 5.) Each of these people were identified by Plaintiff as members of

12 Plaintiff’s board of directors and therefore are custodians under the EDO. (Tate

13 Decl., ¶ 3, Ex. 1.) The chart also indicated that, with the exception of documents on

14 Plaintiff’s email server and documents on Plaintiff’s Google drive, Plaintiff had not

15 collected anything from the other custodians. (Id. at ¶ 5.)

16 On April 24, 2023, the parties attended a subsequent IDC (“IDC 4”).
17 Following IDC 4, the Court issued an order requiring Plaintiff to provide

18 “information obtained from each of the custodians identified in Section 4.3 of the

19 Electronic Discovery Order in effect in this case … regarding whether they have one

20 or more of any of the sources of documents/data identified in Section 4.4 of the

21 EDO.” (Close Decl., Ex. 19 [Dkt. 54].)

22 On May 1, 2023, Plaintiff provided questionnaires purporting to be completed
23 by Bobby Cook, Eugene Furnace, Jesse Jensen, Meg Hurwitt, and Vanessa Hughes.

24 Plaintiff did not provide any information for Jennifer Magill, Noelle Beauregard,

25 Ariana Conroyd, Shelby Kirchoff, Apryl Alexander, Lenore Silverman, Denette

26 Boyd-King, Dorit Saberi, or Dee Anna Hassanpour – all of which are custodians.
27 (Tate Decl., ¶ 11, Ex. 7.)

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1 On May 1, 2023, the parties attended another IDC (“IDC 5”). Following IDC
2 5, the Court issued an order requiring Plaintiff to obtain information from each of

3 the custodians identified in Section 4.3 of the EDO regarding (i) whether each

4 custodian presently is volunteering or otherwise associated with Plaintiff, and if so,

5 what position he or she holds within the organization, and (ii) whether each

6 custodian voluntarily will provide the documents requested by Defendants pursuant

7 to the EDO. (Close Decl., Ex. 20 [Dkt. 56].)

8 On May 3, 2023, Plaintiff provided some of the requested information. (Tate
9 Decl., ¶ 15, Ex. 10.) Notably, Plaintiff indicated that it still had not heard anything

10 from two current board members: Apryl Alexander and Lenore Silverman. Plaintiff

11 failed to list Denette Boyd-King, Dorit Saberi, or Dee Anna Hassanpour. (Tate

12 Decl., ¶ 15.)

13 On May 3, 2023, the parties attended the final IDC on this issue (“IDC 6.”)
14 In advance of IDC 6, counsel for Defendants sent counsel for Plaintiff a list of

15 persons who Defendants believe had been called to the board, but from whom BCS

16 had not collected anything, including Denette Boyd-King, Dorit Saberi, and Dee

17 Anna Hassanpour. (Id. at ¶ 14, Ex. 9.)1 During the IDC, Tamany Vinson Bentz

18 (“Ms. Bentz”) misrepresented to the Court that these persons were never on the

19 board of directors. (Tate Decl., ¶ 16.) Following the IDC, Ms. Bentz repeated her

20 misrepresentation in writing. (Tate Decl., ¶ 16, Ex. 11.)

21

22

23

24

25

26
27 1
Defendants believe that the other persons identified in the email are also
28 custodians but have not yet obtained sworn testimony to that effect.

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1 B. Plaintiff’s Introductory Statement
2 Although poorly organized, Defendants’ motion seeks evidentiary and
3 monetary sanctions based on three principal issues. None of them, however, support

4 an award of sanctions against Plaintiff or its counsel. Many of Defendants’ issues

5 are based on Defendants’ own failure to meet and confer or conduct an adequate

6 investigation before seeking sanctions. Defendants’ other issues are based on false

7 premises and misrepresentations about Plaintiff’s ESI collection and production.

8 Defendants’ tactics, including filing a baseless motion for sanctions on June
9 13, 2023 and this joint statement, make clear that they are not seeking responsive

10 information, but are instead forcing Plaintiff to incur significant cost and burden to

11 collect ESI for the sake of it as part of an abusive litigation strategy that is in no way

12 aimed at ascertaining the “truth.” What Defendants have imposed on Plaintiff is the

13 inverse of any reasonable discovery standard: without making any showing that a

14 source has responsive information, Defendants are mandating that Plaintiff search

15 over 500 sources to confirm that they do not contain responsive ESI, rather than

16 allowing Plaintiff to conduct a reasonable inquiry into, and search of, sources it

17 believes may contain responsive ESI. These tactics should not be condoned.

18 Custodians. Section 4.3 of the EDO identifies at least 15 custodians from
19 whom Plaintiff is obligated to collect ESI, one of which is collectively “BCS’s

20 entire Board of Directors.” Defendants argue that Plaintiff violated Section 4.3

21 because it did not collect from the following individuals who Defendants contend

22 are Board members: Silverman, Alexander, Boyd-King, Saberi, Hassanpour.

23 Defendants further argue that Plaintiff’s counsel misrepresented to the Court during

24 the May 3, 2023 IDC that the latter three were not Board members when they were.

25 As the attached declarations establish, Boyd-King, Saberi, and Hassanpour
26 never served on Plaintiff’s Board.2 Therefore, Plaintiff is not obligated to collect
27

28
2
Saberi has informed Plaintiff’s counsel that she is currently on vacation and

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1 ESI from them, and Plaintiff’s counsel’s representation to the Court was truthful.

2 Moreover, Defendants did not properly meet and confer on this issue in an egregious

3 violation of Section 8 of the Central District’s Civility and Professionalism

4 Guidelines. Had they done so, they would have known two months ago that none of

5 them were ever on the Board. Rather than work through the issue constructively,

6 Adam Tate, Defendants’ counsel, ignored Plaintiff’s explanation of the issue and

7 stated, “It seems more likely to me that your client lied to you and then you repeated

8 the lie to the Court,” before filing a motion for sanctions and this joint statement.

9 With respect to Silverman, she never had BCS-issued or BCS-owned
10 accounts, and her personal accounts are outside of Plaintiff’s possession, custody, or

11 control. With respect to Alexander, she was not a Board member at the time of the

12 events at issue, and is therefore outside the scope of the EDO.

13 Data sources. Section 4.4 of the EDO lists at least 35 data sources from
14 which the parties must collect ESI, provided they are within a party’s possession,

15 custody, or control. Defendants argue that Plaintiff violated Section 4.4 because

16 Plaintiff failed to collect ESI from every one of the 35 data sources for each of the at

17 least 15 custodians (amounting to over 525 sources), regardless of whether either

18 party has a reasonable belief that any source contains potentially responsive ESI.

19 The EDO does not require this broad of a collection because its terms are
20 limited by the FRCP, industry standards, and the legal standards for what is in

21 BCS’s possession, custody or control. The EDO states, “This Protocol is not

22 intended to expand the Parties’ obligations under Federal Rules of Civil

23 Procedure 1, 26, and 34,” and “The Parties agree to take into account the

24 proportionality considerations addressed in [the FRCP] for purposes of preservation

25 and production of ESI.” Dkt. 41 § 6.1 (emphasis added). Under these Rules, the

26
27 will submit a declaration upon her return. Lueddeke Decl. ¶ 3. Plaintiff will

28 supplement this filing with her declaration upon receipt.

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1 EDO can only require the production of the information in Plaintiff’s possession,

2 custody or control, and that is reasonably accessible and proportional to the needs of

3 this case. These Rules, importantly, do not allow the parties or the Court to expand

4 the scope of discovery. See Fed. R. Civ. P. 26(b)(1) (“Unless otherwise limited by

5 court order, the scope of discovery is as follows: …” (emphasis added)).

6 The custodians’ 35 personal, non-BCS accounts are not within Plaintiff’s
7 possession, custody, or control because Plaintiff does not have the legal right to

8 obtain documents from those accounts on demand. Defendants bear the burden of

9 showing why or how Plaintiff has such a right with respect to a third-party’s 35

10 personal accounts. Defendants have made no such showing, and instead claim

11 simplistically that because the EDO includes 35 sources, Plaintiff must collect from

12 them all without regard to governing law or proportionality considerations.

13 Post-IDC orders. Defendants argue that Plaintiff violated three of the
14 Court’s post-IDC orders by not complying with their directives. These alleged

15 violations are principally based on the fact that Plaintiff did not collect from Boyd-

16 King, Saberi, and Hassanpour, which as set forth above, is a non-issue. In any

17 event, the facts make clear Plaintiff complied with all orders in good faith.

18 Lastly, Defendants’ request for evidentiary sanctions is largely premised on
19 Plaintiff’s alleged failure to preserve and produce “original” screenshots taken by

20 Noelle Beauregard and Jesse Jensen. Defendants argue that without the originals,

21 they cannot review metadata, such as who took the screenshot and when.

22 Defendants have suffered no prejudice because Plaintiff produced versions of the

23 screenshots, and both Beauregard and Jensen were deposed about the circumstances

24 surrounding them. The sanctions Defendants request are severely overbroad and

25 amount to Plaintiff not being able to offer testimony from nearly any witnesses or to

26 introduce as evidence any documents in its production. The sanctions violate the
27 law that they be narrowly tailored to address alleged harm, of which there is none.

28

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1 II. ISSUES IN DISPUTE
2 A. Defendants’ Statement of Issues in Dispute
3 1. Whether Plaintiff Violated a Court Order by Failing to Collect
4 From All Custodians Listed in the EDO and Lied to the Court.
5 2. Whether Plaintiff Violated a Court Order by Failing to Collect
6 From All Data Sources as Required by the EDO.
7 3. Whether Plaintiff’s Violations of the EDO Prejudiced
8 Defendants.
9 4. Whether the Court Should Compel the Production of Documents
10 in the Control of Plaintiff’s Current Officers and Directors.
11 5. Whether Plaintiff and its Counsel Should be Sanctioned and the
12 Nature and Scope of Appropriate Sanctions.
13 B. Plaintiff’s Statement of Issues in Dispute
14 Defendants identified five issues that they contend necessitate this joint
15 statement and the imposition of sanctions against Plaintiff and its counsel. Plaintiff

16 has not violated any court order or engaged in any discovery abuse, and therefore,

17 sanctions are unwarranted against it or its counsel.

18 III. PARTIES’ CONTENTIONS AND POINTS AND AUTHORITIES
19 A. Issue No. 1: Whether Plaintiff Violated a Court Order by Failing to
20 Collect From All Custodians Listed in the EDO and Lied to the
21 Court
22 1. Defendants’ Contentions and Points and Authorities
23 In the State Action brought by Defendants against Plaintiff, Plaintiff was
24 asked through interrogatories to identify its board of directors since March 2021 and

25 the dates that such persons were on the board. In response, Plaintiff identified the

26 following persons and date ranges:
27

28

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1 1. Jennifer Magill, March 22, 2021 to present;3
2 2. Vanessa Hughes, March 22, 2021 to present;
3 3. Apryl Alexander, June 13, 2022 to present;
4 4. Lenore Silverman, January 18, 2022 to present;
5 5. Denette Boyd-King, August 15, 2022 to present;
6 6. Dorit Saberi, June 18, 2022 to present; and
7 7. Dee Anna Hassanpour, June 15, 2022 to present.
8 (Tate Decl., ¶ 3, Ex. 1, Response 20.)
9 Section 4.3 of the Court’s EDO specifies the custodians from whom Plaintiff
10 had an obligation to collect. (Close Decl., Ex. 17 [Dkt. 41], §4.3). In addition to

11 listing several named individuals, the EDO listed “the entire BCS Board of

12 Directors” as custodians. (Id. at ¶ 4.) Accordingly, pursuant to the EDO, BCS

13 should have collected from each of the above-named board members.

14 According to Plaintiff’s own chart submitted on April 24, 2023, Plaintiff has
15 not collected documents from Lenore Silverman,4 Apryl Alexander, Denette Boyd-

16 King, Dorit Saberi, or Dee Anna Hassanpour. (Tate Decl., ¶ 8, Ex. 5.) More

17 concerning, during IDC 6, Ms. Bentz misrepresented to the Court that Denette

18 Boyd-King, Dorit Saberi, or Dee Anna Hassanpour were never on the board of

19 directors. (Tate Decl., ¶ 16.) Counsel’s statement not only contradicts Plaintiff’s

20 sworn discovery responses, but it is at odds with the signed agreements produced in

21 this action which show that Denette Boyd-King, Dorit Saberi, and Dee Anna

22 Hassanpour are board members. (Tate Decl., ¶ 3, Ex. 1.)

23 As outlined in Section I(A)(4) above, the parties have participated in at least
24 two telephone conferences and four Informal Discovery Conferences with the Court

25
3
Plaintiff’s interrogatory response is dated September 21, 2022.
26
4
BCS’s chart lists Lenore Silverman but indicates that BCS did not collect
27 anything form her because “Ms. Silverman does not have a BCS Google Workspace

28 account.” (Id.)

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1 in an effort to resolve this issue but were unable to come to an agreement.

2 2. Plaintiff’s Contentions and Points and Authorities
3 Defendants argue that Plaintiff violated Section 4.3 of the EDO by (i) not
4 collecting ESI from “the entire BCS Board of Directors,” including specifically,

5 Lenore Silverman, Apryl Alexander, Denette Boyd-King, Dorit Saberi, and Dee

6 Anna Hassanpour; and (ii) misrepresenting to the Court that Boyd-King, Saberi, and

7 Hassanpour have never served on Plaintiff’s Board of Directors. As a result,

8 Defendants seek evidentiary and monetary sanctions against Plaintiff and DLA.

9 Because Plaintiff did not violate Section 4.3 of the EDO, did not misrepresent the

10 members of Plaintiff’s Board of Directors, and because Defendants did not

11 sufficiently meet and confer with respect to the “misrepresentation” issue, sanctions

12 are unwarranted.

13 Awarding sanctions under the circumstances here would be a violation of the
14 tenets of Federal Rule of Civil Procedure 37. Fed. R. Civ. Proc. 37(b)(2)(C)

15 (reasonable attorneys’ fees should not be awarded when a party was “substantially

16 justified or other circumstances make an award of expenses unjust”). As articulated

17 below, Plaintiff’s interpretation of and compliance with the EDO was reasonable

18 and justified. In such cases, courts do not award sanctions under Rule 37. See, e.g.,

19 Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994) (declining to hold firm

20 liable for cost of motion as a sanction because “the special master and district court

21 did not find [firm’s] pre-January 1991 behavior objectionable”). A party’s position

22 is substantially justified when it has “a ‘reasonable basis in law and fact.’” ASSE

23 Int’l, Inc. v. Kerry, 223 F. Supp. 3d 996, 1001 (C.D. Cal. 2016) (quoting Pierce v.

24 Underwood, 487 U.S. 552, 565 (1988)).

25 / / /

26 / / /
27

28

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1 (a) Boyd-King, Saberi, and Hassanpour have never served
2 on Plaintiff’s Board of Directors, and therefore
3 Plaintiff’s counsel did not misrepresent their status to
4 the Court.
5 Boyd-King, Saberi, and Hassanpour have never served on Plaintiff’s Board of
6 Directors, and therefore Plaintiff has no obligation to collect ESI from them because

7 they are not custodians under Section 4.3 of the EDO. The attached Declarations of

8 King,5 Saberi,6 and Hassanpour state unequivocally that they have never served on

9 Plaintiff’s Board of Directors.

10 Defendants nevertheless argue that during the May 3, 2023 IDC, Plaintiff’s
11 counsel misrepresented to the Court that Boyd-King, Saberi, and Hassanpour had

12 never served on Plaintiff’s Board of Directors. As the attached declarations

13 establish, Plaintiff’s counsel’s representation to the Court was accurate. Thus, there

14 is no basis for sanctions. Furthermore, Defendants have been made aware of the

15 evidence supporting Plaintiff’s statements to the Court by at least Dr. King and yet

16 still maintain this baseless request for sanctions. See Lueddeke Decl. Ex. G.

17 (b) Defendants did not meet and confer on the
18 misrepresentation issue in violation of Local Rule 7-3
19 and Civility and Professionalism Guidelines.
20 Defendants’ argument that Plaintiff’s counsel misrepresented a fact to the
21 Court should also be rejected because Defendants violated Local Rule 7-3 and the

22 Central District’s Civility and Professionalism Guidelines by failing to adequately

23 meet and confer on this issue before filing its motion for sanctions on June 13, 2023

24 and before submitting this joint statement.

25
5
Dr. King recently changed her last name and no longer goes by “Boyd-King.”
26
6
Saberi has informed Plaintiff’s counsel that she is currently on vacation and
27 will submit a declaration upon her return. Lueddeke Decl. ¶ 3. Plaintiff will

28 supplement this filing with her declaration upon receipt.

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1 During the May 3, 2023 IDC, Plaintiff’s counsel informed the Court that
2 Boyd-King, Saberi, and Hassanpour never served on Plaintiff’s Board of Directors.

3 Defendants’ counsel did not challenge that representation. Plaintiff’s counsel also

4 asked that if Defendants had evidence contrary to her representation, they bring it to

5 her attention to it could be discussed. See Dkt. 85 (5/3/23 IDC Tr. at 30:17-31:4).

6 Defendants’ counsel said he was “happy to engage” in that discussion. See id. The

7 next day, Defendants’ counsel asked Plaintiff’s counsel to confirm its representation

8 and made no mention of his evidence that Boyd-King, Saberi or Hassanpour were

9 on the Board. Plaintiff’s counsel confirmed her representations. Lueddeke Decl.

10 Ex. D. Despite his representations to the Court, Defendants’ counsel never raised

11 the issue of whether Boyd-King, Saberi or Hassanpour were on the Board until

12 Defendants filed their motion for sanctions. Id.

13 Defendants’ counsel was aware all along of an interrogatory response from
14 BCS—drafted by another law firm in another litigation—which stated that Boyd-

15 King, Saberi, and Hassanpour served on Plaintiff’s Board of Directors. Tate Decl.

16 Ex. 1. Contrary to his representation to the Court, Defendants’ counsel never

17 inquired with Plaintiff’s counsel about the inconsistency of her representation with

18 the interrogatory response until Defendants relied on it in their motion for sanctions

19 to argue that Plaintiff’s counsel had lied to the Court. Had Defendants’ counsel

20 informed Plaintiff’s counsel about the issue before filing, Plaintiff’s counsel could

21 have provided clarification and avoided a motion on this issue.

22 Indeed, on June 19, 2023, Plaintiff’s counsel, in an effort to resolve this issue,
23 informed Defendants’ counsel that DLA Piper did not prepare the interrogatory

24 response, it was prepared in another litigation by another law firm, that it was

25 erroneous, and that it would be corrected. See Lueddeke Decl. Ex. F.

26 Rather than work through the issue productively, Defendants’ counsel stated,
27 “It all seems very convenient. It seems more likely to me that your client lied to you

28 and then you repeated the lie to the Court.” Id. Notwithstanding Plaintiff’s

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1 counsel’s explanation, Defendants served Plaintiff with this joint statement on June

2 20, 2023 in violation of the Central District Civility and Professionalism Guidelines.

3 See C.D. Cal. Civility & Prof. Guidelines § 8 (“We will not move for court

4 sanctions against opposing counsel without first conducting a reasonable

5 investigation and unless fully justified by the circumstances and necessary to protect

6 our client’s lawful interests.”) (emphasis added); id. (“Before filing a motion with

7 the court, we will engage in more than a mere pro forma discussion of its purpose in

8 an effort to resolve the issue with opposing counsel.”) (emphasis added).

9 The next day, on June 21, 2023, Boyd-King submitted an Affidavit of
10 Custodian of Records to Defendants stating that she never served on Plaintiff’s

11 Board of Directors. Lueddeke Decl. Ex G. Nevertheless, Defendants did not

12 withdraw this issue.

13 It appears that Defendants’ counsel improperly wanted to involve the Court
14 on this issue, notwithstanding that it had no basis to do so, for no other purpose than

15 to sully Plaintiff and its counsel in the eyes of the Court in another violation of the

16 Central District Civility and Professionalism Guidelines. See C.D. Cal. Civility &

17 Prof. Guidelines § 8 (“We will not, absent good cause, attribute bad motives or

18 improper conduct to other counsel or bring the profession into disrepute by

19 unfounded accusations of impropriety.”). Defendants’ and their counsel’s conduct

20 should not be condoned by the Court and their request for sanctions on this issue

21 should be denied.

22 (c) Silverman does not have any BCS-issued accounts and
23 Alexander was not on Plaintiff’s Board of Directors
24 during the relevant period.
25 The EDO requires that Plaintiff collect ESI from at least 15 custodians, one of
26 which is collectively “the entire BCS Board of Directors.” Dkt. 41 § 4.3. The EDO
27 further states that the parties are required to collect ESI from over 35 data sources

28 per custodian, “so long as they are in the possession, custody, or control of any of

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1 the Parties and reasonable accessible.” Id. § 4.4 (emphasis added)/

2 The EDO is explicitly subject to the FRCP and industry standard practices.
3 Specifically, the EDO states, “This Protocol is not intended to expand the Parties’

4 obligations under Federal Rules of Civil Procedure 1, 26, and 34,” and “The Parties

5 agree to take into account the proportionality considerations addressed in Federal

6 Rules of Civil Procedure for purposes of preservation and production of ESI and

7 hard copy documents in this Action.” Dkt. 41 § 6.1 (emphasis added). The EDO

8 further states, “Each Producing Party shall design and implement the industry

9 standard and approved methods it uses to identify, cull, and review its potentially

10 responsive ESI based on its knowledge and understanding of its own data, the

11 facts and issues involved in the Action,” and “A Producing Party may also conduct

12 a targeted collection of sources likely to contain responsive materials (e.g., file

13 folders on a given hard drive).” Id. § 4.5 (emphasis added).

14 Under the FRCP, whether a matter is subject to discovery depends on if it is
15 “proportional to the needs of the case, considering the importance of the issues at

16 stake in the action, the amount in controversy, the parties’ relative access to relevant

17 information, the parties’ resources, the importance of the discovery in resolving the

18 issues, and whether the burden or expense of the proposed discovery outweighs its

19 likely benefit.” Fed. R. Civ. Proc. R. 26(b). In reviewing their files for discoverable

20 documents, a party must make a reasonable search. Reinsdorf v. Sketchers U.S.A.,

21 Inc., 296 F.R.D 604, 615 (C.D. Cal. 2013) (“[W]hile parties must impose a

22 reasonable construction on discovery requests and conduct a reasonable search when

23 responding to the requests, the Federal Rules do not demand perfection.”);

24 Patagonia, Inc. v. Anheuser-Busch, LLC, 2020 WL 12175722, at *1 (C.D. Cal. Feb.

25 26, 2020) (“Extending the search to all employee files and email accounts who. . .

26 are unlikely to have the information requested. . . would be disproportionate. AB
27 has not demonstrated that any of the additional custodians whose files it seeks to

28 search contain or are likely to contain unique responsive documents or

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1 information.”); Thompson v. Costco Wholesale Corp., 2015 WL 13935273 at *2

2 (S.D. Cal. Sept. 21, 2015) (“Costco must conduct a good faith reasonable search of

3 the places where responsive documents are likely to be located”; there is no

4 “requirement that Costco search every single email on its servers without using

5 reasonable search terms. . . or preventing Costco from limiting its search to

6 custodians who may have responsive documents.”).

7 In accordance with the EDO and these authorities, Plaintiff collected from
8 those BCS-owned or BCS-issued data sources listed in Section 4.4 of the EDO, and

9 collected from custodians’ personal, non-BCS accounts if (1) Plaintiff had a

10 reasonable belief that they may contain responsive ESI, and (2) the custodian agreed

11 to grant access thereto since Plaintiff does not otherwise have possession, custody,

12 or control of such accounts. See Tate Decl. Ex. 5; Fed. R. Civ. Proc. R. 34(a) (party

13 can only request copies of documents that are “in the responding party’s possession,

14 custody, or control”); U.S. v. Int’l Un. of Petroleum and Indus. Workers, AFL-CIO,

15 870 F.2d 1450, 1452 (9th Cir. 1989) (“The party seeking production of the

16 documents. . . bears the burden of providing that the opposing party has such

17 control.”).

18 Plaintiff did not violate Section 4.3 of the EDO because it made the
19 reasonable determination, pursuant to the terms of the EDO and governing law, that

20 Alexander’s and Silverman’s accounts either were unlikely to yield responsive ESI

21 or were outside the possession, custody, or control of Plaintiff.

22 Alexander did not become a member of Plaintiff’s Board of Directors until
23 June 2022, months after the allegations in the Complaint. Tate Decl. Ex. 1. While

24 Alexander was issued a Google email and Drive account by Plaintiff, Plaintiff made

25 the decision, based on knowledge of its own data under the industry standard set

26 forth in Section 4.1 of the EDO, to not collect from it because Alexander would not
27 have been a custodian pursuant to Section 4.3 during the relevant time period and

28 because Alexander’s account was not reasonably likely to yield responsive ESI.

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1 See, e.g., Patagonia, 2020 WL 12175722, at *1 (“Extending the search to all

2 employee files and email accounts who. . . are unlikely to have the information

3 requested. . . would be disproportionate.”); Costco, 2015 WL 13935273, at *2

4 (Costco may “limit[] its search to custodians who may have responsive

5 documents”). With respect to Alexander’s personal, non-BCS accounts, which are

6 outside of Plaintiff’s possession, custody, or control, she did not consent to having

7 Plaintiff search them.7

8 Silverman is a former member of Plaintiff’s Board of Directors. Silverman
9 was not issued any account by Plaintiff. With respect to Silverman’s personal, non-

10 BCS accounts, which are outside of Plaintiff’s possession, custody, or control, she

11 represented to counsel that she does not have responsive documents (or otherwise

12 documents related to this dispute) did not consent to having Plaintiff search them. 8

13 B. Issue No. 2: Whether Plaintiff Violated a Court Order by Failing to
14 Collect From All Data Sources as Required by the EDO
15 1. Defendants’ Contentions and Points and Authorities
16 (a) Background
17 Every year, thousands of children who are branded as “problem children” for
18 a variety of reasons are sent, often against their wills, to congregate care facilities

19 (sometimes known as “boot camps,” “behavioral modification schools,” or other

20 similar monikers). Although these congregate care facilities market themselves as

21 providers of therapeutic treatment, many simply collect public funding and abuse

22 and mistreat the children, including physical, verbal, and sexual abuse, isolation,

23
7
As part of the IDC process, Plaintiff asked Alexander if she would allow
24
Plaintiff to collect her personal accounts. She did not respond to that request.
25 Lueddeke Decl. Ex. B.
8
26 As part of the IDC process, Plaintiff asked Silverman if she would allow
Plaintiff to collect her personal accounts. While she did not respond to that request,
27 she did inform counsel that she did not have any documents relating to this dispute.

28 Id. Ex. B; id. ¶ 4.

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1 forced hard labor, chemical sedation, sleep and food deprivation, etc. (Declaration

2 of Katherine McNamara (“McNamara Decl.”), ¶ 2.)

3 For decades, advocates have sought to help raise attention to these issues,
4 reform the congregate care facilities, and put an end to institutional child abuse. The

5 phrase “Breaking Code Silence” is commonly used by those involved in this

6 movement because “Code Silence” is a common punishment used by congregate

7 care facilities. (Id. at ¶ 3.) According to Plaintiff, the phrase has been used in this

8 context since at least 2010 – more than a decade before Plaintiff was organized. (Id.

9 at ¶ 4.)

10 Before Plaintiff was organized, and while she was working with a different
11 group of survivors, McNamara purchased the.Org Domain in her own name and

12 with her own funds. Plaintiff was organized approximately a year later. (McNamara

13 Decl., ¶ 4.)

14 Whiteley only worked for Plaintiff for approximately three months. During
15 the time he worked for Plaintiff, he was subjected to horrendous abuse by Hughes,

16 the details of which are outlined in Whiteley’s complaint against Plaintiff pending in

17 State Court. In summary, Hughes constantly targeted Whiteley based on his

18 sexuality and made derogatory and offensive comments to and about Whiteley, such

19 as calling him a “mangina” and a “queen” and telling Whiteley that he could borrow

20 Hughes’s dick and suck it. (Declaration of Jeremey Whiteley (“Whiteley Decl.”), ¶

21 2; McNamara Decl., ¶ 6.)

22 Immediately after Whiteley resigned, Hughes began pressuring the board of
23 directors to sue Whiteley. When the board explained that Plaintiff had no grounds to

24 sue Whiteley, Hughes asked them to “brainstorm” a reason to sue Whiteley. (Tate

25 Decl. ¶ 29, Ex. 15 [Deposition of Bill Boyles (“Boyles Depo.”)], 71:2-72:14;

26 McNamara Decl., ¶ 6.)
27 McNamara was also subjected to harassment by Hughes. Shortly before her
28 resignation, McNamara sent the board of directors a formal complaint about

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1 Hughes’s behavior. (McNamara Decl., ¶ 7.) After McNamara submitted her

2 complaint, Hughes began threatening to sue McNamara in retaliation. (Tate Decl. ¶

3 29, Ex. 15 [Boyles Depo., 78:19-79:11].)

4 (b) Plaintiff’s Investigation
5 Approximately three months after McNamara’s resignation, on March 11,
6 2022, McNamara received an email informing her that a BCS email address was

7 added to the Google Webmaster/Google Search Console for the.Org Domain.

8 McNamara believed that Plaintiff was attempting interfere with the domain that she

9 registered and paid for. So that someone else could witness Plaintiff’s actions, she

10 used her own personal Google account to give Whiteley “ownership” administrative

11 capabilities to the .Org Domain. Later that day, one of Plaintiff’s representatives

12 revoked Whiteley’s ownership capabilities. Over the next 48 hours, McNamara and

13 Plaintiff’s representatives engaged in a back in forth in which Plaintiff would

14 repeatedly revoke Whiteley’s ownership capabilities and McNamara would reinstate

15 the ownership capabilities. (McNamara Decl., ¶ 9.)

16 The next day, on March 12, 2022, McNamara learned from her domain
17 registrar – Hover/Tuscows – that Jesse Jensen, a representative of Plaintiff, had

18 attempted to access her personal Hover account to take control of the .Org domain.

19 Shortly thereafter, McNamara sent Plaintiff a demand letter asking Plaintiff to

20 migrate its website away from the .Org domain to Plaintiff’s .com domain within ten

21 days. Plaintiff filed the instant action on the tenth day. (McNamara Decl., ¶ 10.)

22 Unbeknownst to Defendants, on March 11th, Plaintiff also allegedly
23 discovered that the .Org Domain was not appearing on Google Search. Noelle

24 Beauregard (“Beauregard”) was the first primary investigator into the cause of the

25 “de-indexing.” Beauregard’s investigation was simple. First, when she signed on to

26 the Google Webmaster / Google Search Console she saw that Megan Hurwitt and
27 Defendants each were listed as having access to the Google Webmaster / Google

28 Search Console. (Tate Decl., ¶ 19, Ex. 3 [Deposition of Noelle Beauregard

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1 (“Beauregard Depo”)], 22:7-23:12.) Second, Beauregard was also able to see on the

2 Google Search Console that a request to temporarily remove the .Org Domain from

3 Google Search was submitted March 9, 2022 – but not who submitted it (if anyone).

4 (Id. at 49:10-50:6.) This was the entirety of her investigation. (Id. at 28:22-29:3.)

5 Beauregard testified that she took approximately 25 screen shots during this

6 investigation, (Id. at 43:24-44:3; 60:25-61:5), but that she has since deleted the

7 screen shots off of her computer. (Id. at 40:20-25.)

8 The second primary investigator into the cause of the “de-indexing” was Jesse
9 Jensen (“Jensen”). Based on the same information, Jensen made the extraordinary

10 logical leap that, because Whiteley was listed as an owner on the 11 th, Whiteley

11 must have been involved with the temporary removal request made on the 9th. (Tate

12 Decl., ¶ 6, Ex. 4 [Deposition of Jesse Jensen (“Jensen Depo”)], 154:16-156:8.)

13 Jensen admits that he never saw anything showing that Whiteley had access to the

14 Google Search console on March 9th when the removal request was made. (Id. at

15 128:23-129:3; 153:21-154:14.) When he was asked why he did not ask Google who

16 submitted the temporary removal request, Jensen testified that he did not need to

17 because he “already knew” that it was one of Defendants and that it did not matter to

18 him which one of them it was. (Id. at 100:23-101:10.)

19 Jensen also took screenshots during his investigation. According to Jensen, he
20 shared those screenshots with counsel over a year ago (Id. at 146:11-147:5), but

21 for reasons unknown, those screenshots still have not been produced. (Tate Decl., ¶

22 22.)

23 Finally, Jensen testified that he began to be concerned about the security of
24 Plaintiff’s systems and he recommended that Plaintiff’s leadership team

25 communicate any sensitive information through personal emails and the messaging

26 application Signal. (Jensen Depo., 16:9-17:13; 23:18-24:13.) With few exceptions,
27 these communications also have not been produced. (Tate Decl., ¶¶ 25-26.)

28

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1 (c) Plaintiff’s Violation of the EDO
2 The stipulated EDO provides that the parties would collect and produce
3 documents from each of the data sources identified in Section 4.4 for each of the

4 custodians listed in Section 4.3. The language of the EDO is unambiguous: fist,

5 Section 7.1 of the stipulated EDO provides that “The Parties will produce, on a

6 rolling basis, ESI from the data sources and Custodians identified in paragraph 4.3

7 and 4.4” (Close Decl., Ex. 17 [Dkt. 41], §7.1). Second, paragraph 4.4 states that

8 “The Parties agree that the data sources include the following, so long as they are in

9 the possession, custody, or control of any of the Parties and reasonably

10 accessible…” (Id. at §4.4, emphasis added.) Finally, the stipulated EDO defines the

11 term “Party” as “any party to this Action, including all of its officers, directors,

12 employees, consultants, retained experts, and Outside Counsel (and their support

13 staffs). (Id. at §2.13, emphasis added.)

14 Notwithstanding the plain language of the EDO, Plaintiff is taking the
15 position that it never agreed to collect anything from the custodians outside of the

16 Breaking Code Silence emails and any of the documents that are on Plaintiff’s

17 Google Drive. In this respect, the spreadsheet which Plaintiff’s counsel submitted to

18 the Court contains a giant gray box indicating that BCS does not believe that it

19 needed to collect and produce documents for virtually every data source for every

20 custodian other than Plaintiff. (Tate Decl., ¶ 15, Ex. 5.)

21 Plaintiff’s argument makes no sense. If Plaintiff actually intended to collect
22 nothing from the custodians, there would be no point of listing the Custodians in

23 Section 4.3, nor would there be any point of identifying the term “Party” to include

24 officers and directors. Further, there are other portions of the EDO which

25 specifically make reference to collecting from individuals other than Plaintiff

26 including: (1) Section 4.4 which lists the “personal and BCS controlled computing
27 devices of Vanessa Hughes, Jennifer Magill, Jesse Jensen, Bobby Cook, Katherine

28 McNamara, and Jeremy Whiteley” among the data sources; and (2) Appendix A,

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1 paragraph 11 which references gathering information from “an individual’s hard

2 drive.” (Id.)

3 As outlined in Section I(A)(4) above, the parties have participated in at least
4 two telephone conferences and four Informal Discovery Conferences with the Court

5 in an effort to resolve this issue but were unable to come to an agreement.

6 2. Plaintiff’s Contentions and Points and Authorities
7 Defendants argue that Plaintiff violated Section 7.1 of the EDO by not
8 “collect[ing] and produc[ing] documents from each of the data sources identified in

9 Section 4.4 for each of the custodians listed in Section 4.3” of the EDO, including

10 screenshots from Noelle Beauregard, screenshots from Jesse Jensen, and

11 communications among Plaintiff’s “leadership team” over personal Signal accounts

12 and personal email accounts. As a result, Defendants seek evidentiary and monetary

13 sanctions against Plaintiff and its counsel. Because Plaintiff did not violate Section

14 7.1 of the EDO, sanctions are unwarranted.

15 Awarding sanctions under the circumstances here would be a violation of the
16 tenets of Federal Rule of Civil Procedure 37. Fed. R. Civ. Proc. R. 37(b)(2)(C)

17 (reasonable attorneys’ fees should not be awarded when a party was “substantially

18 justified or other circumstances make an award of expenses unjust”). As articulated

19 below, Plaintiff’s interpretation of and compliance with the EDO was reasonable

20 and justified. In such cases, courts do not award sanctions under Rule 37. See, e.g.,

21 Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994) (declining to hold firm

22 liable for cost of motion as a sanction because “the special master and district court

23 did not find [firm’s] pre-January 1991 behavior objectionable”). A party’s position

24 is substantially justified when it has “a ‘reasonable basis in law and fact.’” ASSE

25 Int’l, Inc. v. Kerry, 223 F. Supp. 3d 996, 1001 (C.D. Cal. 2016) (quoting Pierce v.

26 Underwood, 487 U.S. 552, 565 (1988)).
27

28

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1 (a) Defendants’ insert misrepresent facts and Plaintiff’s
2 position.
3 Defendants’ insert states that “Plaintiff is taking the position that it never
4 agreed to collect anything from the custodians outside of the Breaking Code Silence

5 emails and any of the documents that are on Plaintiff’s Google Drive” and “If

6 Plaintiff actually intended to collect nothing from the custodians, there would be no

7 point of listing the Custodians in Section 4.3.” Section III.B.1.c, supra.

8 Defendants misconstrue and misrepresent Plaintiff’s position. It is false that
9 Plaintiff intended to collect “nothing” from the custodians and that Plaintiff

10 collected “nothing” from the custodians. This is an incendiary conclusion offered

11 without support.

12 Rather, as Plaintiff explains above, Plaintiff collected from BCS-issued or
13 BCS-owned data sources from the custodians listed in Section 4.3 of the EDO

14 wherever reasonably accessible. See Tate Decl. Ex. 5. With respect to the personal,

15 non-BCS accounts of the custodians listed in Section 4.3 of the EDO, Plaintiff

16 collected from such accounts if (1) Plaintiff had a reasonable belief that they may

17 contain responsive ESI, and (2) the custodian agreed to grant access thereto since

18 Plaintiff does not otherwise have possession, custody, or control of such accounts.

19 Id.; Fed. R. Civ. Proc. R. 34(a) (party can only request copies of documents that are

20 “in the responding party’s possession, custody, or control”); see also Int’l Un. of

21 Petroleum and Indus. Workers, AFL-CIO, 870 F.2d at 1452 (“The party seeking

22 production of the documents. . . bears the burden of providing that the opposing

23 party has such control.”). Plaintiff’s approach complied with the EDO, FRCP, and

24 industry standard.

25 (b) The EDO does not require the scope of collection that
26 Defendants are demanding.
27 The EDO provides, in relevant part:
28 • Custodians: Defendants are required to collect ESI from just two custodians
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1 (the Defendants themselves). Plaintiff, by contrast, is required to collect ESI
2 from at least 15 custodians, one of which is collectively “the entire BCS
3 Board of Directors.” Dkt. 41 § 4.3.
4 • Data sources: The parties are required to collect ESI from over 35 data
5 sources per custodian, “so long as they are in the possession, custody, or
6 control of any of the Parties and reasonably accessible.” Id. § 4.4 (emphasis
7 added).9
8 The EDO is explicitly subject to the FRCP and industry standard practices.
9 Specifically, the EDO states, “This Protocol is not intended to expand the Parties’

10 obligations under Federal Rules of Civil Procedure 1, 26, and 34,” and “The Parties

11 agree to take into account the proportionality considerations addressed in Federal

12 Rules of Civil Procedure for purposes of preservation and production of ESI and

13 hard copy documents in this Action.” Dkt. 41 § 6.1 (emphasis added). The EDO

14 further states, “Each Producing Party shall design and implement the industry

15 standard and approved methods it uses to identify, cull, and review its potentially

16 responsive ESI based on its knowledge and understanding of its own data, the

17 facts and issues involved in the Action,” and “A Producing Party may also conduct

18 a targeted collection of sources likely to contain responsive materials (e.g., file

19 folders on a given hard drive).” Id. § 4.5 (emphasis added). Thus, by its own terms,

20 the EDO requires that parties collect information that is:

21 proportional to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the parties’
22 relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the
23 burden or expense of the proposed discovery outweighs its likely
benefit.
24

25 9
Before the EDO was entered, Plaintiff objected that collecting from at least 15
26 custodians across over 35 sources (a total of over 525 potential sources) was not
proportional to the needs of the case, constituted a significant disparity between the
27 obligations of Plaintiff and Defendants, and created an undue burden for Plaintiff.

28 Lueddeke Decl. ¶ 2. The Court entered the EDO over Plaintiff’s objections.

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1
Fed. R. Civ. Proc. R. 26(b) 10; see also Reinsdorf v. Sketchers U.S.A., Inc., 296
2
F.R.D 604, 615 (C.D. Cal. 2013) (“[W]hile parties must impose a reasonable
3
construction on discovery requests and conduct a reasonable search when
4
responding to the requests, the Federal Rules do not demand perfection.”);
5
Patagonia, Inc. v. Anheuser-Busch, LLC, 2020 WL 12175722, at *1 (C.D. Cal. Feb.
6
26, 2020) (“Extending the search to all employee files and email accounts who. . .
7
are unlikely to have the information requested. . . would be disproportionate. AB
8
has not demonstrated that any of the additional custodians whose files it seeks to
9
search contain or are likely to contain unique responsive documents or
10
information.”); Thompson v. Costco Wholesale Corp., 2015 WL 13935273 at *2
11
(S.D. Cal. Sept. 21, 2015) (“Costco must conduct a good faith reasonable search of
12
the places where responsive documents are likely to be located”; there is no
13
“requirement that Costco search every single email on its servers without using
14
reasonable search terms. . . or preventing Costco from limiting its search to
15
custodians who may have responsive documents.”).
16
Defendants contend that Plaintiff’s collection is insufficient because the EDO
17
imposes on Plaintiff an obligation to collect ESI from every single one of the 35
18
sources listed in Section 4.4 for each of the custodians listed in Section 4.3
19
(amounting to over 525 sources), regardless of whether either Plaintiff or
20
Defendants have a reasonable belief that any such source contains potentially
21
responsive information. For instance, Defendants contend that Plaintiff is obligated
22
to search the personal PayPal and Venmo accounts of each custodian despite the fact
23
that those accounts have absolutely nothing to do with the allegations in this case
24

25
10
26 FRCP 26 does not allow the Court or the parties to expand the scope of
discovery. The Rule only allows the Court to limit discovery. See Fed. R. Civ.
27 Proc. R. 26(b)(1) (“Unless otherwise limited by court order, the scope of discovery

28 is as follows: …” (emphasis added)).

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1 (i.e., there is no allegation that any personal account was hacked) and are unlikely to

2 lead to the discovery of admissible evidence. Defendants’ tactics make it clear that

3 they are not actually seeking responsive information, but are instead forcing Plaintiff

4 to incur significant cost and burden as part of a punitive litigation strategy that is in

5 no way aimed at ascertaining the “truth.”

6 Defendants’ reading of the EDO is unreasonable, runs afoul of contract
7 interpretation rules, and would lead to absurd results. Section 4.4 states in relevant

8 part, “[T]he data sources include the following, so long as they are in the possession,

9 custody, or control of any of the Parties and reasonably accessible.” The term

10 “Party” is defined as “any party to this Action, including all its officers, directors,

11 employees, consultants, retained experts, and Outside Counsel (and their support

12 staffs).” Defendants contend that because Section 4.4 uses the term “Party,”

13 Plaintiff is obligated to collect ESI from all of Plaintiff’s officers, directors,

14 employees, consultants, retained experts, and Outside Counsel (and their support

15 staffs)—regardless of whether any such individual is identified as an agreed-upon

16 custodian in Section 4.3.

17 Defendants’ reading cannot be correct. It would render meaningless the list
18 of agreed-upon custodians in Section 4.3 and the explicit limitation that a data

19 source must be in a party’s possession, custody, or control. Read Defendants’ way,

20 Plaintiff is obligated to collect from, for instance, every one of Plaintiff’s officers

21 whether or not that officer is identified as a custodian. And, every data source

22 would be in every individual’s possession, custody, or control because of the

23 circular reading advanced by Defendants. Such a reading violates California law,

24 which requires that every section and term of an agreement be given meaning rather

25 than rendered null. See, e.g., Hemphill v. Wright Family, LLC, 234 Cal. App. 4th

26 911, 915 (2015) (“Courts must interpret contractual language in a manner which
27 gives force and effect to every provision, and not in a way which renders some

28 clauses nugatory, inoperative or meaningless” (citation omitted).

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1 Defendants’ reading would also lead to absurd results. For instance, it would
2 require that Plaintiff collect 35 sources of ESI from every member of Defendants’

3 counsel—whether or not any of those sources contains responsive information—

4 including his or her personal Venmo, PayPal, and social media accounts. For

5 example, Defendants should be producing audit logs from Mr. Tate’s personal

6 PayPal account and searching Facebook messages from Mr. Julander’s Facebook

7 page. See, e.g., Lueddeke Decl. Ex. H. Under this reading, Defendants are in

8 violation of Section 4.4 of the EDO because they have not performed such a

9 collection. Of course, the parties never intended the EDO to be read as such and

10 Defendants cannot unilaterally and selectively read it that way as against just

11 Plaintiff.

12 (c) Plaintiff’s ESI collection complied with the EDO and
13 the FRCP.
14 Plaintiff collected and produced ESI in compliance with the EDO. In total,
15 Plaintiff has produced 64,965 documents, producing 770,224 pages. By

16 comparison, Defendants have produced 39,274 documents, comprising 155, 922

17 pages.

18 Plaintiff is a nonprofit organization made up of volunteers. Magill Decl. ¶ 3.
19 While certain of the custodians listed in Section 4.3 of the EDO are officers or on

20 Plaintiff’s Board of Directors, all custodians are volunteers. Id. As an organization,

21 Plaintiff generally issues Google-based accounts to volunteers, such as Gmail and

22 Google Drive. Id. ¶ 4. Plaintiff also has various other accounts in the name of the

23 organization, such as a Facebook account, an Instagram account, a Cloudways

24 account, and a WordPress account. Id. BCS does not issue cell phones to

25 volunteers. Id.

26 With respect to BCS-issued or BCS-owned accounts, Plaintiff collected ESI
27 from them wherever reasonably accessible, which is consistent with Fed. R. Civ. P.

28 26. See Fed. R. Civ. Proc. R. 26(b) (discovery must be “proportional to the needs of

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1 the case, considering the importance of the issues at stake in the action, the amount

2 in controversy, the parties’ relative access to relevant information, the parties’

3 resources, the importance of the discovery in resolving the issues, and whether the

4 burden or expense of the proposed discovery outweighs its likely benefit”). This

5 includes Google-based accounts for each of the custodians listed in Section 4.3 of

6 the EDO, and for an additional custodian not listed in Section 4.3, Meg Appelgate.

7 See Tate Decl. Ex. 5. The only exception is Lenore Silverman, to whom Plaintiff

8 did not issue Google-based accounts. See id. Plaintiff’s collection was exactly as

9 required under the FRCP and EDO because “[i]n response to document requests, a

10 party must conduct a reasonable search for responsive, nonprivileged documents in

11 its possession, custody, or control.” Local.com Corp. v. Fry’s Elecs. Inc., 2013 WL

12 12139096, at *1 (C.D. Cal. Feb. 22, 2013) (noting responding party must show that

13 they “made a reasonable inquiry and exercised due diligence”).

14 With respect to the personal, non-BCS accounts of the custodians listed in
15 Section 4.3 of the EDO, i.e. personal PayPal, Venmo, and Twitter accounts, they are

16 either outside of the possession, custody, or control of Plaintiff or not reasonably

17 accessible to Plaintiff under Section 4.4 of the EDO for the reasons set forth below.

18 Nevertheless, where Plaintiff had a reasonable belief that particular non-BCS

19 accounts may have responsive ESI, Plaintiff asked the custodian if Plaintiff could

20 search the account. If the custodian agreed, then Plaintiff searched the account and

21 produced from it responsive, nonprivileged documents, if any existed. This includes

22 personal email accounts of Vanessa Hughes, Jennifer Magill, and Jesse Jensen, and

23 the personal cell phones from Dr. Hughes and Magill.

24 Plaintiff is not able to collect accounts from volunteers that it does not operate
25 or maintain because such accounts are not within Plaintiff’s possession, custody, or

26 control. “Control is defined as the legal right to obtain documents upon demand.”
27 In re Citric Acid Lit., 191 F.3d 1090, 1107-1108 (9th Cir. 1999) (holding that US

28 company did not have legal right to demand that affiliated Swiss entity provide it

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1 with documents in response to subpoena, and therefore US company did not have

2 possession, custody, or control over the documents); U.S. v. Int’l Un. of Petroleum

3 Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989) (documents held by local

4 union were not in international union’s possession, custody, or control because

5 international union did not have right to demand records from local union).

6 Therefore, courts often hold that the personal accounts of an
7 agent/representative are not in the possession, custody, or control of the

8 principal/entity he or she represents. See e.g., Matthew Enterp., Inc. v. Chrystler

9 Group LLC, 2015 WL 8482256, at *4 (N.D. Cal. Dec. 10, 2015) (business-related

10 emails in employees’ personal accounts were not in company’s possession, custody,

11 or control because the company did not have a legal right to “take back any such

12 information now stored in personal accounts”); Thermal Design, Inc. v. Am. Soc. of

13 Heating, Refrigerating and Air-Conditioning Eng., Inc., 755 F.3d 832, 836 (7th Cir.

14 2014) (applying legal right test and holding that organization did not have

15 possession, custody, or control over documents held by “volunteer members, none

16 of whom were employed by” entity because party seeking discovery did not show

17 that organization had legal right to demand documents from volunteers); Int’l

18 Longshore & Warehouse Union v. ICTSI Oregon, Inc., 2018 WL 6305665, at *3 (D.

19 Or. Dec. 3, 2018) (denying defendant’s motion to compel production of emails from

20 personal accounts of officers, agents, or members because defendant failed to show

21 that they “use personal email for work correspondence more than a de minimus

22 amount”).

23 Defendants have the burden of showing the BCS in fact has possession,
24 custody and control over volunteer accounts that were not issued or controlled by

25 BCS. See Int’l Un. of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d at 1452

26 (“The party seeking production of the documents. . . bears the burden of providing
27 that the opposing party has such control.”). Defendants, however, fail to provide the

28 Court with any evidence of BCS’s legal ability to obtain documents from these

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1 accounts.

2 Thus, without any justification, Defendants are demanding that Plaintiff
3 conduct searches of custodians’ personal accounts that Plaintiff is not authorized to

4 conduct without the custodians’ consent. For instance, Defendants demand that

5 Plaintiff search custodians’ personal Paypal and Venmo accounts despite a total lack

6 of evidence that those accounts have anything to do with this case, and despite the

7 fact that Plaintiff asked them if they would allow their accounts to be searched and

8 they refused. As the Ninth Circuit has explained and reaffirmed, if an entity has no

9 right to obtain documents upon demand from an individual or entity, the entity

10 cannot be compelled to produce those documents to the requesting party:

11 Ordering a party to produce documents that it does not have the legal
right to obtain will oftentimes be futile, precisely because the party has
12 no certain way of getting those documents. . . With respect to the
ECAMA documents, however, C&L–US asked C&L–Switzerland to
13 produce those documents, but C&L–Switzerland refused. There is no
mechanism for C&L–US to compel C&L–Switzerland to produce those
14 documents, and it is not clear how Varni wants C&L–US to go about
getting the ECAMA documents, since C&L–Switzerland could
15 legally—and without breaching any contract—continue to refuse to
turn over such documents. Because C&L–US does not have legal
16 control over C&L–Switzerland’s documents, Varni could not compel
C&L–US to produce those documents. In re Citric Acid Lit., 191 F.3d
17 at 1108.
18

19 Notably, and consistent with the governing standard, following the May 1,
20 2023 IDC, the Court did not order Plaintiff to collect from Plaintiff’s volunteers’

21 personal accounts. Rather, the Court ordered only that Plaintiff ask those volunteers

22 if they consented to having their personal accounts searched. Dkt. 56.

23 The position Defendants advance run contrary to the governing standard and
24 the Court’s approach. What Defendants have attempted to impose on Plaintiff is the

25 inverse of any reasonable discovery standard. That is, Defendants have sought to

26 unilaterally enforce a protocol that applies only to Plaintiff, by which Plaintiff is
27 obligated to conduct searches of all 35 sources for all of Plaintiff’s custodians,

28 officers, and directors (amounting to over 525 sources), even if there is no

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1 reasonable basis for any party to suspect that those sources may contain responsive

2 ESI. Without making any showing that these sources have responsive information,

3 Defendants are mandating that Plaintiff search every possible source to confirm that

4 it does not contain responsive ESI, rather than allowing Plaintiff to conduct a

5 reasonable inquiry into data sources and efficiently use its resources to search those

6 sources it reasonably believes may contain responsive ESI. Defendants have it

7 backward. It makes no sense to impose such a laborious and costly undertaking that

8 is unlikely to yield any responsive ESI, which is why the FRCP imposes a rule of

9 proportionality. Indeed, it is Defendants—not Plaintiff— who have violated the

10 EDO by eschewing the FRCP and industry standards in abusing the discovery

11 process.

12 (d) Plaintiff produced the screenshots taken by Noelle
13 Beauregard and Jesse Jensen; communications via
14 Signal and personal email are outside of Plaintiff’s
15 possession, custody, or control.
16 Defendants argue that Plaintiff did not satisfy its discovery obligations
17 because it failed to preserve approximately 25 screenshots taken by Noelle

18 Beauregard, failed to produce screen shots taken by Jesse Jensen, and failed to

19 produce communications by Plaintiff’s “leadership team” from Signal and personal

20 email. Defendants are incorrect.

21 From the outset of this litigation, Defendants have repeatedly advanced a
22 narrative, without any basis, that Plaintiff is fabricating its claims and evidence

23 related to Defendants’ unauthorized access to Plaintiff’s systems. Then, McNamara

24 submitted a declaration in support of this joint statement in which she admits, for the

25 first time, that she did in fact access Plaintiff’s Google Console on March 11, 2022,

26 months after she resigned from Plaintiff, and used that access to ensure that
27 Whiteley maintained his access to the Google Console. McNamara Decl. ¶ 11.

28 Plaintiff contends that such access was unauthorized and violated the CFAA and the

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1 CDAFA. Beauregard and Jensen took screenshots evidencing this unauthorized

2 access. As detailed below, Plaintiff produced those screenshots to Defendants.

3 On March 9, 2022 a de-index request related to Plaintiff’s website was made
4 through Plaintiff’s Google Console. Plaintiff did not discover the clandestine

5 request until March 11, 2022 and immediately began investigating the incident. See

6 Lueddeke Decl. Ex. I. Plaintiff determined that the only individuals with access to

7 Plaintiff’s Google Console were two then current volunteers of Plaintiff (Noelle

8 Beauregard and Megan Hurwitt) and two former volunteers of Plaintiff (Defendant

9 McNamara and Defendant Whiteley). Id. Ex. A (Jensen Depo. at 153:21-156:15.)

10 At that time, both McNamara and Whiteley were actively hostile to Plaintiff and had

11 taken steps to harm Plaintiff and its service of the TTI community. Id. Plaintiff

12 reasonably inferred that, given the timing of the unauthorized access, the two

13 individuals who were actively hostile to Plaintiff—McNamara and Whiteley—were

14 responsible for the de-index request, rather than two current volunteers who

15 volunteered their time to investigate the incident and would have no reason to make

16 the request. Id.

17 Beauregard screenshots. In Section III.C.1.a, supra, of this joint statement,
18 Defendants concede that Beauregard sent the screenshots she took to Jennifer Magill

19 before she deleted them. On May 5, 2023—nearly two months ago—Plaintiff

20 produced those screenshots to Defendants along with the email to Magill.

21 Despite the fact that Plaintiff has no legal obligation to aid Defendants in their
22 review of Plaintiff’s production, Plaintiff identifies the email and screenshots by

23 Bates number for purposes of resolving this dispute: BCS_0574561, BCS_0574572,

24 BCS_574573, BCS_0574571, BCS_0574562-70, BCS_0574555-60, BCS_05745-

25 5253, BCS_0574550, BCS_0574546-48, and BCS_0574551. Notably, Plaintiff also

26 pointed Defendants to these documents on May 5, 2023, and Defendants have not
27 since raised any inadequacies in the production with Plaintiff. Lueddeke Decl. at E

28 (email from Bentz to Tate).

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1 Defendants filed this joint submission on this issue in violation of the Central
2 District Civility and Professionalism Guidelines because it “move[d] for court

3 sanctions against opposing counsel without first conducting a reasonable

4 investigation.” C.D. Cal. Civility & Prof. Guidelines § 8. Had Plaintiff conducted a

5 reasonable search of Defendants’ productions for the screenshots at issue before

6 accusing Plaintiff of not producing them, Defendants could have found them and

7 avoided motion practice.

8 Lastly, while Defendants do not explicitly allege that Plaintiff spoliated
9 evidence by not preserving the screenshots Beauregard took, Plaintiff did not

10 spoliate the evidence. There can be no spoliation because the screenshots, and the

11 substance therein, still exist and Plaintiff produced them. See, e.g., Riddick v.

12 AT&T, 2017 WL 85829 at *1 (E.D. Cal. Jan. 9, 2017) (“The continued existence of

13 the JOBS system is fatal to plaintiffs’ motion for sanctions for spoliation, as there is

14 no indication the underlying evidence has been destroyed and the evidence is to the

15 contrary.”).

16 Jensen screenshots. In Section III.B.1.b, supra, of this joint statement,
17 Defendants state that the screenshots Jensen took “still have not been produced” “for

18 reasons unknown.” This, again, is wrong. Plaintiff has produced all screenshots in

19 its possession, custody, or control, except for those in Slack private channels or

20 direct messages, which will be produced.

21 Plaintiff filed this joint submission on this issue in violation of the Central
22 District Civility and Professionalism Guidelines because it “move[d] for court

23 sanctions against opposing counsel without first conducting a reasonable

24 investigation.” C.D. Cal. Civility & Prof. Guidelines § 8. Had Plaintiff conducted a

25 reasonable search of Defendants’ productions for the screenshots at issue before

26 accusing Plaintiff of not producing them, Defendants could have found them and
27 avoided motion practice.

28

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1 Communications via Signal and personal email. In Section III.B.1.b, supra,
2 of this joint statement, Defendants argue that, following the alleged hacking related

3 to Plaintiff’s website, Plaintiff’s unidentified “leadership team” began

4 communicating via Signal and personal email, and “[w]ith few exceptions, these

5 communications also have not been produced.” This argument is either wrong or

6 overstates the facts.

7 As an initial matter, custodian’s personal email accounts and personal Signal
8 accounts (i.e., non-BCS accounts) are outside of Plaintiff’s possession, custody, or

9 control for the reasons set forth above. Plaintiff does not have a Signal account.

10 Therefore, Plaintiff may only collect from a custodian’s personal email account or

11 personal Signal account if (1) Plaintiff has a reasonable belief that they may contain

12 responsive ESI, and (2) the custodian agrees to grant access thereto since Plaintiff

13 does not otherwise have possession, custody, or control of such accounts. See, e.g.,

14 Fed. R. Civ. Proc. R. 34(a) (party can only request copies of documents that are “in

15 the responding party’s possession, custody, or control”); In re Citric Acid Lit., 191

16 F.3d 1090, 1107-1108 (9th Cir. 1999); U.S. v. Int’l Un. of Petroleum Indus.

17 Workers, 870 F.2d 1450, 1452 (9th Cir. 1989); Matthew Enterp., Inc. v. Chrystler

18 Group LLC, 2015 WL 8482256, at *4 (N.D. Cal. Dec. 10, 2015) (business-related

19 emails in employees’ personal accounts were not in company’s possession, custody,

20 or control because the company did not have a legal right to “take back any such

21 information now stored in personal accounts”); Thermal Design, Inc. v. Am. Soc. of

22 Heating, Refrigerating and Air-Conditioning Eng., Inc., 755 F.3d 832, 836 (7th Cir.

23 2014) (applying legal right test and holding that organization did not have

24 possession, custody, or control over documents held by “volunteer members, none

25 of whom were employed by” entity because party seeking discovery did not show

26 that organization had legal right to demand documents from volunteers); Int’l
27 Longshore & Warehouse Union v. ICTSI Oregon, Inc., 2018 WL 6305665, at *3 (D.

28 Or. Dec. 3, 2018) (denying defendant’s motion to compel production of emails from

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1 personal accounts of officers, agents, or members because defendant failed to show

2 that they “use personal email for work correspondence more than a de minimis

3 amount”).

4 With respect to personal email accounts, Plaintiff asked Vanessa Hughes,
5 Jennifer Magill, and Jesse Jensen if their personal email accounts could be searched

6 for potentially responsive emails. All three consented. Thus, Plaintiff produced

7 emails from the personal email account of Jensen, and has collected and will

8 produce emails from the personal email account of Magill. Plaintiff searched Dr.

9 Hughes’ personal email account and did not locate responsive, non-privileged

10 emails (Plaintiff has informed Defendants of the same). Plaintiff understands that

11 Noelle Beauregard, who is no longer associated with Plaintiff, produced email from

12 her personal email account directly to Defendants.

13 With respect to personal Signal accounts, Plaintiff asked Dr. Hughes, Magill,
14 and Jensen if their personal Signal accounts could be searched for potentially

15 responsive ESI. Dr. Hughes agreed, but Magill and Jensen declined. Thus, Plaintiff

16 collected from Dr. Hughes’ personal Signal account.

17 C. Issue No. 3: Whether Plaintiff’s Violations of the EDO Prejudiced
18 Defendants
19 1. Defendants’ Contentions and Points and Authorities
20 (a) Critical evidence has been deleted due to Plaintiff’s failure
21 to collect from each of the custodians and data sources.
22 On March 31, 2023, Defendants took the deposition of Noelle Beauregard,
23 one of the two principal persons who performed the investigation into the alleged

24 “de-indexing” incident. Beauregard testified that she was an officer at Plaintiff until

25 late February or early March 2023 when she resigned. (Beauregard Depo., 13:1-14.)

26 Beauregard is a named custodian in Paragraph 4.3 of the EDO. (Close Decl., Ex. 17
27 [Dkt. 41], §4.3.)

28

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1 When asked if she, or anyone on her behalf, went through her cell phone to
2 look for responsive documents, Beauregard answered no. (Id. at 38:5-16.) When

3 asked if she, or anyone on her behalf went through her computer to look for

4 responsive documents, Beauregard answered “The only thing I did is take some

5 screen shots of the – – the alleged hacking and I sent those to Jenny [Magill]”. (Id. at

6 38:17- 39:11.) When asked what happened to the screen shots, Ms. Beauregard

7 testified that she deleted the screenshots. (Id. at 40:20-25.)

8 For months, Defendants have attempted to locate the original screenshots and
9 have asked Plaintiff to produce them. To date, the only thing that Plaintiff has been

10 identified is seven screenshots which DLA Piper brought to Ms. Beauregard’s

11 deposition and some screenshots attached to emails. None of these screenshots have

12 any metadata associated with them. (Tate Decl., ¶ 26.) Without the metadata, it is

13 impossible for Defendants to tell when the screenshots were taken, by whom, and

14 whether the screenshots have been modified or altered.11 (Tate Decl., 27.)

15 Plaintiff’s failure to collect and preserve the original screenshots before they
16 were deleted is a clear violation of Section 3.1 of the EDO, which provides: “Each

17 Party represents that it has taken reasonable steps to preserve reasonably accessible

18 sources of ESI with respect to the Custodians set forth in paragraph 4.3 and the data

19 sources set forth in paragraph 4.4.” (Close Decl., Ex. 17 [Dkt. 41], at §3.1.) It is

20 further a violation of a Plaintiff’s discovery obligations under the Rule 34 to fail to

21 preserve evidence. Glob. Music Rts., LLC v. Radio Music License Comm., Inc., No.

22 CV 16-9051 TJH (ASX), 2020 WL 10692695, at *2 (C.D. Cal. Aug. 3, 2020);

23 Hous. Rights Ctr. v. Sterling, No. CV 03-0859, 2005 WL 3320739, at *3 (C.D. Cal.

24 Mar. 2, 2005) (the duty to preserve extends to “key players”—those employees

25 likely to have relevant information.)

26
27 11
The screen shots attached to the emails are in .png format and would be
28 exceptionally easy to edit.

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1 (b) Critical evidence is also being withheld.
2 The other person primarily responsible for the investigation was Jesse Jensen.
3 Jensen likewise testified that he took screenshots in March 2022 and shared them

4 with counsel over a year ago. (Jensen Depo. 146:11-147:5.) To date, and despite

5 multiple requests, the only screenshots taken which purport to have been taken by

6 Jensen which have been produced have metadata from March 2023 – a year after his

7 investigation. (Tate Decl. ¶ 21.) According to Jensen, some of the original

8 screenshots are likely on his computer. (Jensen Depo., 245:24-246:1.) However,

9 Jensen has indicated that he is not willing to search his computer for responsive

10 documents and Plaintiff has taken the position that does not need to because

11 Jensen’s computer is supposedly not within Plaintiff’s control. (Tate Decl., ¶ 6.)

12 Jensen also testified that he began to be concerned about the security of
13 Plaintiff’s system and he recommended that Plaintiff’s leadership team

14 communicate sensitive information through private emails and through the

15 messaging application Signal. (Jensen Depo., 16:9-17:13; 23:18-24:13.) Once again,

16 Plaintiff has taken the position that none of the custodians need to produce such

17 communications unless they are willing to do so voluntarily. Ms. Hughes is the only

18 custodian who indicated her willingness to search for documents on Signal. The

19 majority of the custodians have indicated that they are unwilling to search for

20 documents on their personal emails. As a result, most of the communications

21 relating to Plaintiff’s investigation are being withheld from production. (Tate Decl.,

22 ¶ 15, Ex. 10.)

23 (c) Efforts to Resolve the Issue.
24 As outlined in Section I(A)(4) above, the parties have participated in at least
25 two telephone conferences and four Informal Discovery Conferences with the Court

26 in an effort to resolve this issue but were unable to come to an agreement.
27 2. Plaintiff’s Contentions and Points and Authorities
28 Defendants argue that they have been prejudiced because Plaintiff (i) failed to
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1 preserve, in violation of Section 3.1 of the EDO and preservation obligations,

2 approximately 25 “original” screenshots taken by Noelle Beauregard; (ii) is

3 “withholding” screenshots taken by Jesse Jensen; and (iii) failed to produce

4 communications from custodian’s personal email accounts and Signal accounts. As

5 a result, Defendants seek evidentiary and monetary sanctions against Plaintiff and its

6 counsel. Because Plaintiff did not violate Section 3.112 or its discovery obligations,

7 Defendants have not been prejudiced and sanctions are unwarranted.

8 Awarding sanctions under the circumstances here would be a violation of the
9 tenets of Federal Rule of Civil Procedure 37. Fed. R. Civ. Proc. R. 37(b)(2)(C)

10 (reasonable attorneys’ fees should not be awarded when a party was “substantially

11 justified or other circumstances make an award of expenses unjust”). As articulated

12 below, Plaintiff’s compliance with the EDO was reasonable and justified. In such

13 cases, courts do not award sanctions under Rule 37. See, e.g., Hyde & Drath v.

14 Baker, 24 F.3d 1162, 1171 (9th Cir. 1994) (declining to hold firm liable for cost of

15 motion as a sanction because “the special master and district court did not find

16 [firm’s] pre-January 1991 behavior objectionable”). A party’s position is

17 substantially justified when it has “a ‘reasonable basis in law and fact.’” ASSE Int’l,

18 Inc. v. Kerry, 223 F. Supp. 3d 996, 1001 (C.D. Cal. 2016) (quoting Pierce v.

19 Underwood, 487 U.S. 552, 565 (1988)).

20 (a) Plaintiff preserved and produced screenshots taken by
21 Noelle Beauregard and Jesse Jensen.
22 From the outset of this litigation, Defendants have repeatedly advanced a
23 narrative, without any basis, that Plaintiff is fabricating its claims and evidence

24 related to Defendants’ unauthorized access to Plaintiff’s systems. Then, McNamara

25

26
12
Section 3.1 of the EDO states, “Each Party represents that it has taken
reasonable steps to preserve reasonably accessible sources of ESI with respect to the
27 Custodians set forth in paragraph 4.3 and the data sources set forth in paragraph

28 4.4.” Dkt. 41 § 3.1.

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1 submitted a declaration in support of this joint statement in which she admits, for the

2 first time, that she did in fact access Plaintiff’s Google Console on March 11, 2022,

3 months after she resigned from Plaintiff, and used that access to ensure that

4 Whiteley maintained his access to the Google Console. McNamara Decl. ¶ 11.

5 Plaintiff contends that such access was unauthorized and violated the CFAA and the

6 CDAFA. Beauregard and Jensen took screenshots evidencing this unauthorized

7 access. As detailed below, Plaintiff produced those screenshots to Defendants.

8 On March 9, 2022 a de-index request related to Plaintiff’s website was made
9 through Plaintiff’s Google Console. Plaintiff did not discover the clandestine

10 request until March 11, 2022 and immediately began investigating the incident. See

11 Lueddeke Decl. Ex. I. Plaintiff determined that the only individuals with access to

12 Plaintiff’s Google Console were two then current volunteers of Plaintiff (Noelle

13 Beauregard and Megan Hurwitt) and two former volunteers of Plaintiff (Defendant

14 McNamara and Defendant Whiteley). Id. Ex. A (Jensen Depo. at 153:21-156:15.)

15 At that time, both McNamara and Whiteley were actively hostile to Plaintiff and had

16 taken steps to harm Plaintiff and its service of the TTI community. Id. Plaintiff

17 reasonably inferred that, given the timing of the unauthorized access, the two

18 individuals who were actively hostile to Plaintiff—McNamara and Whiteley—were

19 responsible for the de-index request, rather than two current volunteers who

20 volunteered their time to investigate the incident and would have no reason to make

21 the request. Id.

22 In Section III.C.1.a, supra, of this joint statement, Defendants concede that
23 Beauregard sent the screenshots she took to Jennifer Magill before she deleted them.

24 On May 5, 2023—nearly two months ago—Plaintiff produced those screenshots to

25 Defendants along with the email to Magill.

26 Despite the fact that Plaintiff has no legal obligation to aid Defendants in their
27 review of Plaintiff’s production, Plaintiff identifies the email and screenshots by

28 Bates number for purposes of resolving this dispute: BCS_0574561, BCS_0574572,

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1 BCS_574573, BCS_0574571, BCS_0574562-70, BCS_0574555-60, BCS_05745-

2 5253, BCS_0574550, BCS_0574546-48, and BCS_0574551.

3 Similarly, Plaintiff has produced all screenshots in its possession, custody, or
4 control, except for those in Slack private channels or direct messages, which will be

5 produced.

6 Plaintiff therefore did not violate Section 3.1 of the EDO or its preservation
7 obligations. Defendants contend they are nonetheless prejudiced because (i) the

8 produced screenshots do not have metadata associated with them, and “[w]ithout the

9 metadata, it is impossible for Defendants to tell when the screenshots were taken, by

10 whom, and whether the screenshots have been modified or altered”; and (ii) Plaintiff

11 did not collect ESI from Beauregard’s personal cellphone or personal computer, or

12 from Jensen’s personal computer. Defendants have suffered no prejudice.

13 First, Defendants overstate the necessity of the metadata under the
14 circumstances. Beauregard and Jensen were deposed in this action and testified

15 specifically about the circumstances surrounding their taking the screenshots of

16 Defendants’ access to Plaintiff’s Google Console on March 11, 2022. Defendants

17 already know who took the screenshots and when they were taken. Moreover,

18 McNamara admits in her declaration that she accessed Plaintiff’s Google Console

19 on March 11, 2022—the event that the screenshots capture. McNamara Decl. ¶ 11.

20 Therefore, there is no spoliation or prejudice to Defendants because the claimed

21 missing information is available from another source. See e.g. Am. Career College,

22 Inc. v. Medina, 2022 WL 3452790, at *4 (C.D. Cal. July 6, 2022) (no spoliation of

23 ESI if “Spoliation sanctions are appropriate only if evidence ‘cannot be restored or

24 replaced through additional discovery.’ This is primarily because ESI is often

25 stored in multiple locations, so the destruction of one source may be harmless if the

26 ESI is available from another source.”) (citing Fed. R. Civ. Proc. R. 37(e)).
27 Defendants are feigning the importance of the metadata in another attempt to
28 drum up a misconduct accusation against Plaintiff. Similarly baseless and far-

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1 fetched is Defendants’ claim that the screenshots, as produced, could have been

2 doctored. There is no evidence that the screenshots have been doctored. To the

3 contrary, Defendants’ own declarations submitted with this motion bolster the

4 accuracy of the screenshots because they show exactly what McNamara admits in

5 her declaration.

6 Second, Beauregard’s personal cellphone and computer, and Jensen’s
7 personal computer, are outside the possession, custody, or control of Plaintiff, and

8 therefore under the EDO, Plaintiff did not have the ability to collect from those

9 sources. See, e.g., Fed. R. Civ. Proc. R. 34(a) (party can only request copies of

10 documents that are “in the responding party’s possession, custody, or control”); see

11 also In re Citric Acid Lit., 191 F.3d 1090, 1107-1108 (9th Cir. 1999); U.S. v. Int’l

12 Un. of Petroleum Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989); Matthew

13 Enterp., Inc. v. Chrystler Group LLC, 2015 WL 8482256, at *4 (N.D. Cal. Dec. 10,

14 2015) (business-related emails in employees’ personal accounts were not in

15 company’s possession, custody, or control because the company did not have a legal

16 right to “take back any such information now stored in personal accounts”); Thermal

17 Design, Inc. v. Am. Soc. of Heating, Refrigerating and Air-Conditioning Eng., Inc.,

18 755 F.3d 832, 836 (7th Cir. 2014) (applying legal right test and holding that

19 organization did not have possession, custody, or control over documents held by

20 “volunteer members, none of whom were employed by” entity because party

21 seeking discovery did not show that organization had legal right to demand

22 documents from volunteers); Int’l Longshore & Warehouse Union v. ICTSI Oregon,

23 Inc., 2018 WL 6305665, at *3 (D. Or. Dec. 3, 2018) (denying defendant’s motion to

24 compel production of emails from personal accounts of officers, agents, or members

25 because defendant failed to show that they “use personal email for work

26 correspondence more than a de minimus amount”).
27 Therefore, Plaintiff may only collect from a custodian’s personal cellphone or
28 personal computer if (1) Plaintiff has a reasonable belief that they may contain

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1 responsive ESI, and (2) the custodian agrees to grant access. thereto since Plaintiff

2 does not otherwise have possession, custody, or control of such accounts. Id.

3 Beauregard did not give consent to search from her personal cellphone and

4 computer.

5 Nonetheless, Plaintiff understands that Beauregard produced information
6 from these devices directly to Defendants in March 2023. Jensen did not give

7 consent to search his personal devices, but he did agree to produce his email

8 communications relating to Defendants’ access and the resulting investigation.

9 Those communications have been produced.

10 Lastly, while Defendants do not explicitly allege that Plaintiff spoliated
11 evidence by not preserving the screenshots Beauregard took, Plaintiff did not

12 spoliate the evidence. There can be no spoliation because the screenshots, and the

13 substance therein, still exist and Plaintiff produced them. See, e.g., Riddick v.

14 AT&T, 2017 WL 85829 at *1 (E.D. Cal. Jan. 9, 2017) (“The continued existence of

15 the JOBS system is fatal to plaintiffs’ motion for sanctions for spoliation, as there is

16 no indication the underlying evidence has been destroyed and the evidence is to the

17 contrary.”).

18 (b) Plaintiff produced communications from custodians’
19 personal email accounts and will produce
20 communications from Dr. Hughes’ personal Signal
21 account.
22 In Section III.B.1.b, supra, of this joint statement, Defendants argue that,
23 following the alleged hacking related to Plaintiff’s website, Plaintiff’s unidentified

24 “leadership team” began communicating via Signal and personal email, and “[w]ith

25 few exceptions, these communications also have not been produced.” This

26 argument is either wrong or overstates the facts.
27 As an initial matter, custodians’ personal email accounts and personal Signal
28 accounts (i.e., non-BCS accounts) are outside the possession, custody, or control of

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1 Plaintiff, and therefore under the EDO, Plaintiff did not have the ability to collect

2 from those sources. See, e.g., Fed. R. Civ. Proc. R. 34(a) (party can only request

3 copies of documents that are “in the responding party’s possession, custody, or

4 control”); see also In re Citric Acid Lit., 191 F.3d 1090, 1107-1108 (9th Cir. 1999);

5 U.S. v. Int’l Un. of Petroleum Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989);

6 Matthew Enterp., Inc. v. Chrystler Group LLC, 2015 WL 8482256, at *4 (N.D. Cal.

7 Dec. 10, 2015) (business-related emails in employees’ personal accounts were not in

8 company’s possession, custody, or control because the company did not have a legal

9 right to “take back any such information now stored in personal accounts”); Thermal

10 Design, Inc. v. Am. Soc. of Heating, Refrigerating and Air-Conditioning Eng., Inc.,

11 755 F.3d 832, 836 (7th Cir. 2014) (applying legal right test and holding that

12 organization did not have possession, custody, or control over documents held by

13 “volunteer members, none of whom were employed by” entity because party

14 seeking discovery did not show that organization had legal right to demand

15 documents from volunteers); Int’l Longshore & Warehouse Union v. ICTSI Oregon,

16 Inc., 2018 WL 6305665, at *3 (D. Or. Dec. 3, 2018) (denying defendant’s motion to

17 compel production of emails from personal accounts of officers, agents, or members

18 because defendant failed to show that they “use personal email for work

19 correspondence more than a de minimis amount”).

20 Plaintiff does not have a Signal account. Therefore, Plaintiff may only collect
21 from a custodian’s personal email account or personal Signal account if (1) Plaintiff

22 has a reasonable belief that they may contain responsive ESI, and (2) the custodian

23 agrees to grant access thereto since Plaintiff does not otherwise have possession,

24 custody, or control of such accounts. Id.

25 With respect to personal email accounts, Plaintiff asked Vanessa Hughes,
26 Jennifer Magill, and Jesse Jensen if their personal email accounts could be searched
27 for potentially responsive emails. All three consented. Plaintiff produced emails

28 from the personal email account of Jesse Jensen, and has collected and will produce

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1 emails from the personal email account of Jennifer Magill. Plaintiff searched Dr.

2 Hughes’ personal email account and did not locate responsive, non-privileged

3 emails (Plaintiff has informed Defendants of the same).

4 With respect to personal Signal accounts, Plaintiff asked Dr. Hughes, Magill,
5 and Jensen if their personal Signal accounts could be searched for potentially

6 responsive ESI. Dr. Hughes agreed, but Magill and Jensen declined. Thus, Plaintiff

7 collected from Dr. Hughes’ personal Signal account.

8 D. Issue No. 4: Whether the Court Should Compel the Production of
9 Documents in the Control of Plaintiff’s Current Officers and
10 Directors
11 1. Defendants’ Contentions and Points and Authorities
12 A party responding to discovery “is under an affirmative duty to seek that
13 information reasonably available to [it] from [its] employees, agents, or others

14 subject to [its] control.” A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189

15 (C.D. Cal. 2006) quoting Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D.Ind.1992)

16 (citation omitted); Hill v. Eddie Bauer, 242 F.R.D. 556, 560 (C.D. Cal. 2007).

17 Contrary to Plaintiff’s argument, a responding party “cannot furnish only that

18 information within his immediate knowledge or possession.” Rogers v. Giurbino,

19 288 F.R.D. 469, 485 (S.D. Cal. 2012) (internal quotation marks and citations

20 omitted); Lopez v. Florez, 2013 WL 1151948, * 2 (E.D. Cal. March 19, 2013).

21 Here, according to Plaintiff, when the EDO was ordered by the Court, all of
22 the subject custodians except for Eugene Furnace and Shelby Kirchoff were either

23 officers or directors of Plaintiff. (See Tate Decl., ¶ 3, Ex. 1, Responses 20 and 21.)

24 As such, Plaintiff had an “affirmative duty” to seek information from each of them.

25 Plaintiff clearly failed to do so. In this respect, Bobby Cook, Noelle Beauregard, and

26 Jesse Jensen all testified that they did not search their computers or cell phones or
27 have anyone search such devices on their behalf. (Tate Decl., ¶¶ 5-6, Exs. 2-4,

28 [Deposition of Bobby Cook (“Cook Depo”)], 73:24-74:3, 129:5-15; Beauregard

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1 Depo., 38:5-39:11; Jensen Depo., 18:13-16, 246:2-4.)

2 Plaintiff would seek to avoid this straightforward application of the law by
3 relying on In re Citric Acid Litigation, 191 F.3d 1090, 1107 (9th Cir. 1999) in which

4 the Ninth Circuit emphasized that “[c]ontrol is defined as the legal right to obtain

5 documents upon demand.” 191 F.3d at 1107 (quoting Petroleum & Indus. Workers,

6 870 F.2d at 1452.). According to Plaintiff, it cannot legally compel the custodians to

7 search their own data sources and therefore Plaintiff lacks “control” over the

8 documents. Plaintiff’s reliance on this case, and similar cases, is misplaced for at

9 least three reasons.

10 First, none of the cases of which Defendants are aware involve a situation
11 where a party has entered into a stipulated order promising to provide documents.

12 By agreeing to produce the documents, Plaintiff waived any arguments that it may

13 have had regarding lack of control.13

14 Second, many cases that hold that “control,” for purposes of document
15 discovery, may be established by the existence of a principal-agent relationship. See,

16 e.g., Miniace Pacific Maritime Ass’n, 2006 WL 335389, *2 (N.D. Cal. Feb. 13,

17 2006) (“Numerous courts have found that corporations have control over their

18 officers and employees and that corporations may be required to produce documents

19 in their possession.”); Allen v. Woodford, 2007 WL 309945, at *2 (E.D.Cal.2007)

20 (“‘Control’ may be established by the existence of a principal-agent relationship.”);

21 JPMorgan Chase Bank, N.A. v. KB Home, No. 2:08-CV-1711-PMP-RJJ, 2010 WL

22 1994787, at *5 (D. Nev. May 18, 2010) (“This agency relationship is sufficient to

23 find control for purposes of Rule 34.”). This is also entirely consistent with the

24 common law governing the principal-agent relationship. See Restatement (Third) of

25 Agency § 8.09(2) (2005) (“An agent has a duty to comply with all lawful

26
13
Plaintiff’s counsel had ostensible, if not actual, authority to make the
27 agreement on behalf of the custodians as the custodians are officers and directors of

28 Plaintiff.

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1 instructions received from the principal and persons designated by the principal

2 concerning the agent’s actions on behalf of the principal.”

3 Third, while there is very little law specifically addressing whether an officer
4 or director must search their personal data sources, what little case law exists does

5 not support Plaintiff’s position. The Northern District of California case, Waymo

6 LLC v. Uber Techs., Inc., 2017 WL 2972806, at *2 (N.D. Cal. July 12, 2017), is

7 instructive in this regard. In Waymo, a motion was brought to compel the production

8 of emails sent and received from officers’ personal email accounts. The Court

9 granted the motion to compel, rejecting the argument that the personal emails need

10 not be produced as “[n]onsense.” Waymo LLC v. Uber Techs., Inc., No. 17-CV-

11 00939-WHA(JSC), 2017 WL 2972806, at *2 (N.D. Cal. July 12, 2017). The District

12 Court explained,

13 Otto Trucking must produce responsive documents in the
custody, control or possession of its officers. . . . It cannot
14 hide responsive documents simply because these officers’
work for Otto Trucking was done using their personal
15 email accounts, especially since they are all current Otto
Trucking officers. It is thus unsurprising that Otto
16 Trucking does not cite a single case that supports that
remarkable proposition. The cases Otto Trucking does cite
17 are all inapposite; none involve a corporation refusing to
produce documents involving corporation business in the
18 possession, custody or control of the corporation’s
officers.
19

20 More recently, in Tradeshift, Inc. v. BuyerQuest, Inc., No. 20-CV-01294-RS
21 (TSH), 2021 WL 1586283, at *2 (N.D. Cal. Apr. 23, 2021), the Northern District of

22 California once again held that emails sent from an officer’s personal email to

23 conduct business must be produced and to hold otherwise would “gut Rule 34 and

24 make it way too easy for high-level executives to hide evidence.” (Id.)

25 In a Northern District of Florida case, Matter of Skanska USA Civ. Se. Inc.,
26 No. 3:20-CV-05980-LC/HTC, 2021 WL 4953239, at *4 (N.D. Fla. Aug. 5, 2021),
27 the District Court held that the personal cell phone of an officer was discoverable

28 and that the responding party could not “shuck its discovery obligations simply

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1 because it did not issue the cell phone to [the officer].” (Id.)

2 The few cases where a Court has declined to compel the production of
3 documents from personal data sources are distinguishable. For instance, in Int’l

4 Longshore & Warehouse Union v. ICTSI Oregon, Inc., No. 3:12-CV-1058-SI, 2018

5 WL 6305665, at *3 (D. Or. Dec. 3, 2018), the District of Oregon did not compel the

6 production of the personal emails of a company’s officers, agents and members.

7 However, the Court’s decision was based, in part, on the fact that there was no

8 evidence that the employees used their personal emails for work purposes more than

9 a de minimis amount. (Id. at *3.) The Court implied that had the employees used

10 their personal emails for work with any regularity, the emails would be discoverable

11 because “a company’s officer or agent should not be able to avoid the rules of

12 discovery by using personal email, which is in the custody and control of that officer

13 or agent, for work purposes.” (Id.) Unlike the situation in Int’l Longshore &

14 Warehouse Union, Jensen testified that he recommended that Plaintiff’s leadership

15 team communicate about the allegations against Defendants through personal emails

16 and on Signal. (Jensen Depo., 16:9-17:13; 23:18-24:13.)

17 As outlined in Section I(A)(4) above, the parties have participated in at least
18 two telephone conferences and four Informal Discovery Conferences with the Court

19 in an effort to resolve this issue but were unable to come to an agreement.

20 2. Plaintiff’s Contentions and Points and Authorities
21 Defendants seek an order compelling Plaintiff to produce ESI from all
22 “current officers and directors” – whether or not they are identified as custodians in

23 Section 4.3 of the EDO – and from all 35 data sources listed in Section 4.4 of the

24 EDO – whether or not there is any reason to believe they include responsive ESI.

25 Defendants’ only justification this demand is that such sources are in Plaintiff’s

26 “control.” Indeed, Defendants have not offered any explanation for why they seek
27 such tangential information, which includes individuals’ personal PayPal and

28 Venmo accounts. It appears that Defendants are demanding that Plaintiff conduct

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1 such a search simply for purposes of harassment and to increase Plaintiff’s costs.

2 Defendants’ request should be denied because it is not authorized under the
3 EDO and because volunteers’ personal accounts are outside the possession, custody,

4 or control of Plaintiff.

5 (a) Defendants’ request is not authorized by the EDO.
6 Defendants demand that Plaintiff collect ESI from all “current officers and
7 directors” violates Section 4.3 of the EDO, which specifically lists the custodians

8 from whom Plaintiff is to collect. Plaintiff has collected from the custodians from

9 whom it is required to collect under the EDO.

10 Nevertheless, Defendants, without justification, demand collection from
11 additional custodians based on their misinformed reading of the EDO. Section 4.4

12 states in relevant part, “[T]he data sources include the following, so long as they are

13 in the possession, custody, or control of any of the Parties and reasonably

14 accessible.” The term “Party” is defined as “any party to this Action, including all

15 its officers, directors, employees, consultants, retained experts, and Outside Counsel

16 (and their support staffs).” Defendants contend that because Section 4.4 uses the

17 term “Party,” Plaintiff is obligated to collect ESI from all of Plaintiff’s officers,

18 directors, employees, consultants, retained experts, and Outside Counsel (and their

19 support staffs)—regardless of whether any such individual is identified as an

20 agreed-upon custodian in Section 4.3.

21 Defendants’ reading cannot be correct. It would render meaningless the list
22 of agreed-upon custodians in Section 4.3 and the explicit limitation that a data

23 source must be in a party’s possession, custody, or control. Read Defendants’ way,

24 Plaintiff is obligated to collect from, for instance, every one of Plaintiff’s officers

25 whether or not that officer is identified as a custodian. And, every data source

26 would be in every individual’s possession, custody, or control because of the
27 circular reading advanced by Defendants. Such a reading violates California law,

28 which requires that every section and term of an agreement be given meaning rather

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1 than rendered null. See, e.g., Hemphill v. Wright Family, LLC, 234 Cal. App. 4th

2 911, 915 (2015) (“Courts must interpret contractual language in a manner which

3 gives force and effect to every provision, and not in a way which renders some

4 clauses nugatory, inoperative or meaningless” (citation omitted).

5 Defendants’ reading would also lead to absurd results. For instance, it would
6 require that Plaintiff collect 35 sources of ESI from every member of Defendants’

7 counsel—whether or not any of those sources contains responsive information—

8 including his or her personal Venmo, PayPal, and social media accounts. For

9 example, Defendants should be producing audit logs from Mr. Tate’s personal

10 PayPal account and searching Facebook messages from Mr. Julander’s Facebook

11 page. See Lueddeke Decl. Ex. H. Under this reading, Defendants are in violation of

12 Section 4.4 of the EDO because they have not performed such a collection. Of

13 course, the parties never intended the EDO to be read as such and Defendants

14 cannot unilaterally and s electively read it that way as against just Plaintiff.

15 (b) Personal accounts are not in Plaintiff’s possession,
16 custody, or control.
17 Defendants then demand that for all “current officers and directors,” Plaintiff
18 collect ESI from the 35 personal data sources listed in Section 4.4 of the EDO,

19 whether or not they are likely to include responsive ESI. However, Plaintiff is not

20 able to collect accounts from volunteers that it does not operate or maintain because

21 such accounts are not within Plaintiff’s possession, custody, or control. “Control is

22 defined as the legal right to obtain documents upon demand.” In re Citric Acid Lit.,

23 191 F.3d 1090, 1107-1108 (9th Cir. 1999) (holding that US company did not have

24 legal right to demand that affiliated Swiss entity provide it with documents in

25 response to subpoena, and therefore US company did not have possession, custody,

26 or control over the documents); U.S. v. Int’l Un. of Petroleum Indus. Workers, 870
27 F.2d 1450, 1452 (9th Cir. 1989) (documents held by local union were not in

28 international union’s possession, custody, or control because international union did

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1 not have right to demand records from local union).

2 Therefore, courts often hold that the personal accounts of an
3 agent/representative are not in the possession, custody, or control of the

4 principal/entity he or she represents. See e.g., Matthew Enterp., Inc. v. Chrystler

5 Group LLC, 2015 WL 8482256, at *4 (N.D. Cal. Dec. 10, 2015) (business-related

6 emails in employees’ personal accounts were not in company’s possession, custody,

7 or control because the company did not have a legal right to “take back any such

8 information now stored in personal accounts”); Thermal Design, Inc. v. Am. Soc. of

9 Heating, Refrigerating and Air-Conditioning Eng., Inc., 755 F.3d 832, 836 (7th Cir.

10 2014) (applying legal right test and holding that organization did not have

11 possession, custody, or control over documents held by “volunteer members, none

12 of whom were employed by” entity because party seeking discovery did not show

13 that organization had legal right to demand documents from volunteers); Int’l

14 Longshore & Warehouse Union v. ICTSI Oregon, Inc., 2018 WL 6305665, at *3 (D.

15 Or. Dec. 3, 2018) (denying defendant’s motion to compel production of emails from

16 personal accounts of officers, agents, or members because defendant failed to show

17 that they “use personal email for work correspondence more than a de minimus

18 amount”).

19 Defendants have the burden of showing the BCS in fact has possession,
20 custody and control over volunteer accounts that were not issued or controlled by

21 BCS. See Int’l Un. of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d at 1452

22 (“The party seeking production of the documents. . . bears the burden of providing

23 that the opposing party has such control.”). Defendants, however, fail to provide the

24 Court with any evidence of BCS’s legal ability to obtain documents from these

25 accounts.

26 Thus, without any justification, Defendants are demanding that Plaintiff
27 conduct searches of custodians’ personal accounts that Plaintiff is not authorized to

28 conduct without the custodians’ consent. For instance, Defendants demand that

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1 Plaintiff search custodians’ personal Paypal and Venmo accounts despite a total lack

2 of evidence that those accounts have anything to do with this case, and despite the

3 fact that Plaintiff asked them if they would allow their accounts to be searched and

4 they refused. As the Ninth Circuit has explained and reaffirmed, if an entity has no

5 right to obtain documents upon demand from an individual or entity, the entity

6 cannot be compelled to produce those documents to the requesting party:

7 Ordering a party to produce documents that it does not have the legal
right to obtain will oftentimes be futile, precisely because the party has
8 no certain way of getting those documents. . . With respect to the
ECAMA documents, however, C&L–US asked C&L–Switzerland to
9 produce those documents, but C&L–Switzerland refused. There is no
mechanism for C&L–US to compel C&L–Switzerland to produce those
10 documents, and it is not clear how Varni wants C&L–US to go about
getting the ECAMA documents, since C&L–Switzerland could
11 legally—and without breaching any contract—continue to refuse to
turn over such documents. Because C&L–US does not have legal
12 control over C&L–Switzerland’s documents, Varni could not compel
C&L–US to produce those documents. In re Citric Acid Lit., 191 F.3d
13 at 1108.
14 Notably, and consistent with the governing standard, following the May 1,
15 2023 IDC, the Court did not order Plaintiff to collect from Plaintiff’s volunteers’

16 personal accounts. Rather, the Court ordered only that Plaintiff ask those volunteers

17 if they consented to having their personal accounts searched. Dkt. 56.

18 Notwithstanding this controlling authority, Defendants argue that it is
19 inapplicable because the parties have “entered into a stipulated order promising to

20 provide documents. By agreeing to produce the documents, Plaintiff waived any

21 arguments that it may have had regarding lack of control.” Tellingly, Defendants

22 cite no authority for this position. The EDO, under its own terms, does not displace

23 or supplant the FRCP or applicable law with respect to what constitutes possession,

24 custody, or control.

25 Indeed, the EDO specifically states, “This Protocol is not intended to expand
26 the Parties’ obligations under Federal Rules of Civil Procedure 1, 26, and 34,” and
27 “The Parties agree to take into account the proportionality considerations

28 addressed in Federal Rules of Civil Procedure for purposes of preservation and

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1 production of ESI and hard copy documents in this Action.” Dkt. 41 § 6.1

2 (emphasis added). FRCP 34(a), in turn, states that a party’s document request may

3 only seek documents “in the responding party’s possession, custody, or control,”

4 and FRCP 26 makes discoverable only those documents that, among other things,

5 are proportional to the needs of the case.14 Volunteers’ personal accounts are not in

6 Plaintiff’s possession, custody, or control, nor have Defendants made any showing

7 that the information therein is likely to be responsive or proportional to the needs of

8 the case.

9 Defendants next contend that control can be established simply by virtue of a
10 principal-agent relationship. This argument is likewise overly simplistic because

11 Defendants fail to take into account that, just because a principal-agent relationship

12 exists does not mean that it displaces or supplants the FRCP’s requirements of

13 proportionality and discoverability. The cases Defendants cite are distinguishable,

14 either because the source at issue likely contained responsive information, the

15 individual compelled to produce documents was a party to the lawsuit (in addition to

16 the entity of which he or she was part), or the case did not specifically involve

17 personal accounts of individual agents. See, e.g., JPMorgan Chase Bank, N.A. v.

18 KB Home, 2010 WL 1994787, at *5 (D. Nev. May 18, 2010) (granting motion to

19 compel against JPMorgan, acting as administrative agent of debt holders, because

20 the “court’s only concern is whether the requested documents are relevant to the

21 issues in this case—which they are”); Allen v. Woodford, 2007 WL 309945, at *2

22 (E.D.Cal.2007) (granting motion to compel against individual defendants who were

23 representatives of entity defendants); Miniace Pacific Maritime Ass’n, 2006 WL

24 335389, *2 (N.D. Cal. Feb. 13, 2006) (granting motion to compel as to current

25

26 FRCP 26 does not allow the Court or the parties to expand the scope of discovery.
14

The Rule only allows the Court to limit discovery. See Fed. R. Civ. Proc. R.
27 26(b)(1) (“Unless otherwise limited by court order, the scope of discovery is as

28 follows:…”) (emphasis added)).

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1 directors of an organization without specifying that their personal accounts needed

2 to be searched, and denying motion to compel as to former directors of an

3 organization because moving party failed to establish that the organization had

4 control over them).

5 In any event, what Defendants are demanding Plaintiffs undertake exceeds the
6 rulings of those cases. Here, none of the custodians are parties to this lawsuit, and

7 Defendants have failed to show that tangential custodians (such as Lenore

8 Silverman, who represented she did not have any documents relating to this dispute,

9 see Lueddeke Decl. ¶ 4) or personal accounts are likely to contain any responsive

10 ESI. For instance, Defendants have never explained how an individual custodian’s

11 personal PayPal account, Venmo account, or Twitter account could possibly contain

12 responsive ESI that bears on the issues in this case, which concern whether

13 Defendants unlawfully accessed Plaintiff’s electronic systems on specific dates.

14 Defendants are making Plaintiff collect ESI for the sake of collecting ESI as part of

15 an abusive litigation strategy to impose an undue burden.

16 The remaining cases Defendant rely on are distinguishable because they
17 involved either one or few custodians and a single source for each: either personal

18 email account or personal cellphone. See, e.g., Waymo LLC v. Uber Techs., Inc.,

19 2017 WL 2972806 (N.D. Cal. July 12, 2017) (granting motion to compel production

20 of documents from a single source: officers’ personal email accounts used to

21 conduct relevant “corporation business”); Tradeshift, Inc. v. BuyerQuest, Inc., 2021

22 WL 1586283 (N.D. Cal. Apr. 23, 2021) (granting motion to compel production of

23 documents from a single source: CEO’s personal email account used to conduct

24 relevant “company business”); Matter of Skanska USA Civ. Se. Inc., 2021 WL

25 4953239 (N.D. Fla. Aug. 5, 2021) (in an unpublished case from Florida, company

26 agreed to collect documents from a single source: an employee’s text messages
27 related to relevant “business communications”).

28

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1 By contrast, as set forth above, Defendants are demanding that individuals
2 who are not designated custodians collect data from 35 sources whether or not the

3 data relates to “business communications.” Plaintiff is unaware of any opinions

4 compelling an entity to collect documents from 35 sources belonging to a non-party.

5 Regardless, Plaintiff has produced text messages from Vanessa Hughes’ and

6 Jennifer Magill’s personal cellphones and emails from Jensen’s personal email

7 account, and has collected and will produce emails from Magill’s personal email

8 account.15

9 E. Issue No. 5: Whether Plaintiff and its Counsel Should be
10 Sanctioned and the Nature and Scope of Appropriate Sanctions
11 1. Defendants’ Contentions and Points and Authorities
12 “Federal Rule of Civil Procedure 37 authorizes the district court, in its
13 discretion, to impose a wide range of sanctions when a party fails to comply with the

14 rules of discovery or with court orders enforcing those rules.” Wyle v. R.J. Reynolds

15 Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983) (citing Nat’l Hockey League v. Metro.

16 Hockey Club, Inc., 427 U.S. 639, 643 (1976) ). This includes evidentiary sanctions,

17 which prohibit the disobedient party from supporting or opposing designated claims

18 or defenses or from introducing designated matters in evidence.” Fed. R. Civ. Proc.

19 R. 37(b)(2)(A)(ii).

20 (a) Plaintiff has Violated Multiple Court Orders.
21 Evidentiary sanctions are appropriate in this case because Plaintiff has
22 repeatedly violated the Court’s orders. By Defendants’ count, Plaintiff has violated

23 the following Court orders:

24 Court Order Violation of Court Order
25

26
15
Plaintiff also reviewed Dr. Hughes’ personal email account and did not find
27 any responsive, non-privileged emails to produce. The privileged emails, however,

28 are included in Plaintiff’s privilege log.

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1 Section 3.1 of the EDO which states: Plaintiff failed to preserve ESI from the
2 “Each Party represents that it has taken custodians which has led to the
3 reasonable steps to preserve reasonably destruction of critical evidence
4 accessible sources of ESI with respect including the original screen shots taken
5 to the Custodians set forth in paragraph by Noelle Beauregard.
6 4.3 and the data sources set forth in

7 paragraph 4.4.” (Close Decl., Ex. 17

8 [Dkt. 41].)

9 Section 7.1 of the EDO which states in Plaintiff has failed to produce anything
10 relevant part: “The Parties will produce, from the custodians other than emails
11 on a rolling basis, ESI from the data on Plaintiff’s server and documents
12 sources and Custodians identified in from Plaintiff’s Google drive. Plaintiff
13 paragraphs 4.3 and 4.4.” (Id.) has specifically failed to produce
14 original screen shots, relevant Signal
15 communications, or many of the
16 relevant communications from the
17 personal emails of Plaintiff’s leadership
18 team.
19 Paragraph 3(c) of the Court’s April 19, Plaintiff’s chart failed to list the
20 2023 order which states in relevant part: following persons who Plaintiff has
21 “Plaintiff shall… forward the following identified as members of the board of
22 to the Court… a chart that lists on one directors: Apryl Alexander, Denette
23 axis the custodians identified in Section Boyd-King, Dorit Saberi, and Dee Anna
24 4.3 of the EDO and on the other axis the Hassanpour.

25 sources of documents / data identified

26 in Section 4.4 of the EDO… (Close
27 Decl., Ex. 18 [Dkt. 52].)

28

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1 Paragraph 2(a) of the Courts April 26, Plaintiff did not provide any
2 2023 order which states in relevant part: information for Jennifer Magill, Noelle
3 “Plaintiff shall… forward the following Beauregard, Ariana Conroyd, Shelby
4 to the Court… information obtained Kirchoff, Apryl Alexander, Lenore
5 from each of the custodians identified in Silverman, Denette Boyd-King, Dorit

6 Section 4.3 of the Electronic Discovery Saberi, or Dee Anna Hassanpour.
7 Order in effect in this case … regarding

8 whether they have one or more of any

9 of the sources of documents / data

10 identified in Section 4.4 of the EDO.

11 (Close Decl., Ex. 19 [Dkt. 54].)

12 Paragraph 3(b) of the Court’s order Plaintiff indicated that it was unable to
13 which states in relevant part: “Plaintiff obtain information from two current
14 shall… forward the following to the board members: April Alexander and
15 Court… information obtained from Lenore Silverman. Plaintiff also failed
16 each of the custodians identified in to even list Denette Boyd-King, Dorit
17 Section 4.3 of the EDO regarding (i) Saberi, or Dee Anna Hassanpour.
18 whether each custodian presently is

19 volunteering or otherwise associated

20 with Plaintiff, and if so, what position

21 he or she holds within the organization,

22 and (ii) whether each custodian

23 voluntarily will provide the documents

24 requested by Defendants pursuant to the

25 EDO. (Close Decl., Ex. 20 [Dkt. 56].)

26
27 (b) Plaintiff’s Discovery Abuses are Causing Prejudice.
28 One of the primary allegations against Defendants is that they were involved
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1 in the “de-indexing” of the .Org Domain. As near as Defendants can tell, Plaintiff

2 decided that Defendants were involved because McNamara added Whiteley as an

3 owner to the Google Search Console on March 11, 2022 – two days after the

4 temporary removal request was allegedly made. To date, and after deposing five

5 witnesses (including two persons designated as persons most knowledgeable),

6 Plaintiff has failed to produce any evidence that Defendants were responsible for

7 submitting the temporary removal request that is not pure conjecture.

8 Defendants strongly believe that the only reason Defendants were sued was
9 because they had the audacity to complain about Hughes’ harassment and Hughes

10 thought Plaintiff could get a windfall by suing Defendants through pro bono

11 attorneys. In order to uncover the reasons why they were sued, Defendants are

12 entitled to know everything about the “investigation” that Plaintiff claims it

13 undertook.

14 Plaintiff is hiding critical evidence relating to its investigation. Although
15 screenshots are of questionable evidentiary value and are often excluded as

16 evidence, (see e.g., Edwards v. Junior State of America Foundation (E.D. Tex., Apr.

17 23, 2021, No. 4:19-CV-140-SDJ) 2021 WL 1600282), the screenshots taken by

18 Beauregard and Jensen would at least show what the investigation consisted of. As

19 outlined above, Plaintiff failed to preserve the original screenshots taken by

20 Beauregard before they were deleted and, for reasons that are unexplainable, DLA

21 Piper will not produce the original screen shots that Jensen provided to counsel over

22 a year ago.

23 Second to the screenshots, the best source of information relating to what the
24 investigation entailed is the communications among Plaintiff’s leadership team. But

25 Plaintiff is withholding virtually all of the Slack communications relating to the

26 investigation. Plaintiff is also refusing to produce many of the Signal
27 communications and emails sent from the personal email addresses of the

28 custodians.

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1 Of course, Defendants are entitled to all discoverable information, not just
2 screenshots and communications relating to Plaintiff’s investigation. Plaintiff’s

3 failure to produce the documents has substantially increased Defendants’ litigation

4 costs. As a result, Defendants have no alternative but to incur the expense of issuing

5 subpoenas to the custodians and (if necessary) compelling compliance with those

6 subpoenas. (Tate Decl., ¶ 18.)

7 (c) The Requested Evidentiary Sanctions.
8 Defendants respectfully submit that the following evidentiary sanctions are
9 appopriate:

10 1. An order prohibiting any custodian listed in Section 4.3 of the EDO
11 from testifying in this action unless that custodian agrees to search each of the data

12 sources listed in Section 4.4 of the EDO and produce responsive documents.

13 2. An order prohibiting Plaintiff from introducing as evidence or referring
14 to any document in the possession of the custodians listed in Section 4.3 unless that

15 custodian agrees to search each of the data sources listed in Section 4.4 of the EDO

16 and produce responsive documents.

17 3. An order prohibiting Plaintiff from introducing as evidence or referring
18 to any document in the possession of the custodians listed in Section 4.3 of the EDO

19 that has not been produced in this action.

20 4. An order prohibiting Plaintiff from introducing as evidence or referring
21 to any communications by or between the custodians listed in Section 4.4 unless that

22 custodian agrees to search each of the data sources listed in Section 4.4 of the EDO

23 and produce responsive documents.

24 5. An order prohibiting Plaintiff from introducing as evidence or referring
25 to any evidence supporting the allegation that the .Org Domain was “de-indexed” or

26 removed from Google Search.
27 6. An order prohibiting Plaintiff from introducing as evidence or referring
28 to any screen shots taken of the Google Search Console / Google Webmaster.

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1 7. An order prohibiting Plaintiff from introducing as evidence or referring
2 to what its officers and directors have seen on Google Search Console / Google

3 Workplace.

4 (d) Monetary Sanctions are Also Appropriate.
5 Rule 37(a)(5) provides that if a motion to compel is granted – or if the
6 disclosure or requested discovery is provided after the motion is filed – the Court

7 must require the party whose conduct necessitated the motion – and /or its attorney

8 – to pay the moving party’s reasonable expenses in making the motion, including

9 attorney’s fees, unless (i) the movant filed the motion before attempting in good

10 faith to obtain the disclosure or discovery without court action, (ii) the opposing

11 party’s nondisclosure, response, or objection was substantially justified, or (iii) other

12 circumstances make an award of expenses unjust.

13 In addition, Rule 37(b)(2)(c) provides that the Court must order a party who
14 has violated a discovery order, the attorney advising that party, or both to pay the

15 reasonable expenses, including attorney’s fees, caused by the failure to comply with

16 the court order, unless the failure was substantially justified or other circumstances

17 make an award of expenses unjust.

18 Defendants respectfully request that the Court also award $23,680 in
19 sanctions against Plaintiff and DLA PIPER pursuant to Rule 37(b)(2)(c) of the

20 Federal Rules of Civil Procedure to cover the costs of the IDCs that Defendants’

21 counsel was forced to attend and the cost of drafting the instant Motion. (Tate

22 Decl., ¶ 30.)

23 (e) Efforts to Resolve the Issue.
24 As outlined in Section I(A)(4) above, the parties have participated in at least
25 two telephone conferences and four Informal Discovery Conferences with the Court

26 in an effort to resolve this issue but were unable to come to an agreement.
27 2. Plaintiff’s Contentions and Points and Authorities
28 Defendants request evidentiary and monetary sanctions under FRCP 37 based
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1 on (i) Plaintiff’s alleged violations of Sections 3.1 and 7.1 of the EDO, and of

2 section 3(c) of the Court’s post-IDC April 19, 2023 order, section 2(a) of the Court’s

3 post-IDC April 26, 2023 order, and section 3(b) of the Court’s post-IDC May 2,

4 2023 order; (ii) Plaintiff’s alleged discovery abuses that have prejudiced

5 Defendants. Because Plaintiff has not violated any court order or engaged in

6 discovery abuse, sanctions are unwarranted. Further, the requested sanctions are not

7 limited to those “necessary to cure the prejudice” under FRCP 37 and therefore

8 should be denied.

9 Awarding sanctions under the circumstances here would be a violation of the
10 tenets of Federal Rule of Civil Procedure 37. Fed. R. Civ. Proc. R. 37(b)(2)(C)

11 (reasonable attorneys’ fees should not be awarded when a party was “substantially

12 justified or other circumstances make an award of expenses unjust”). As articulated

13 below, Plaintiff’s interpretation of and compliance with the EDO was reasonable

14 and justified. In such cases, courts do not award sanctions under Rule 37. See, e.g.,

15 Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994) (declining to hold firm

16 liable for cost of motion as a sanction because “the special master and district court

17 did not find [firm’s] pre-January 1991 behavior objectionable”). A party’s position

18 is substantially justified when it has “a ‘reasonable basis in law and fact.’” ASSE

19 Int’l, Inc. v. Kerry, 223 F. Supp. 3d 996, 1001 (C.D. Cal. 2016) (quoting Pierce v.

20 Underwood, 487 U.S. 552, 565 (1988)).

21 (a) Plaintiff did not violate any court order.
22 Section 3.1 of the EDO states, “Each Party represents that it has taken
23 reasonable steps to preserve reasonably accessible sources of ESI with respect to the

24 Custodians set forth in paragraph 4.3 and the data sources set forth in paragraph

25 4.4.” Dkt. 41 § 3.1. Defendants claim Plaintiff violated this section because

26 “Plaintiff failed to preserve ESI from the custodians which has led to the destruction
27 of critical evidence including the original screen shots taken by Noelle Beauregard.”

28

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1 Plaintiff did not violate this section because Plaintiff produced to Defendants
2 the screenshots taken by Noelle Beauregard and Jesse Jensen. Defendants contend

3 they need the “original screen shots” rather than screenshots attached to emails so

4 they can view the metadata to determine who took the screenshots and when.

5 However, any such metadata would not provide Defendants with any additional

6 information than that provided by Beauregard and Jensen in their depositions when

7 they testified specifically about the circumstances surrounding the screenshots they

8 took. See Am. Career College, Inc. v. Medina, Case No. CV 21-698 PSG (SKx),

9 2022 WL 3452790 at *4 (C.D. Cal. July 6, 2022) (“Spoliation sanctions are

10 appropriate only if evidence ‘cannot be restored or replaced through additional

11 discovery.’ This is primarily because ESI is often stored in multiple locations, so the

12 destruction of one source may be harmless if the ESI is available from another

13 source.”) (citing Fed. R. Civ. Proc. R. 37(e)).

14 Section 7.1 of the EDO states, “The Parties will produce, on a rolling basis,
15 ESI from the data sources and Custodians identified in paragraph 4.3 and 4.4.” Id. §

16 7.1. Defendants claim Plaintiff violated this section because “Plaintiff has failed to

17 produce anything from the custodians other than emails on Plaintiff’s server and

18 documents from Plaintiff’s Google drive. Plaintiff has specifically failed to produce

19 original screen shots, relevant Signal communications, or many of the relevant

20 communications from the personal emails of Plaintiff’s leadership team.”

21 Plaintiff did not violate this section. As an initial matter, it is demonstrably
22 false that Plaintiff has not produced “anything from the custodians other than emails

23 on Plaintiff’s server and documents from Plaintiff’s Google drive.” Plaintiff has

24 produced text messages from Vanessa Hughes’ and Jennifer Magill’s personal

25 cellphones and emails from Jensen’s personal email account, and has collected and

26 will produce emails from Magill’s personal email account.16 Defendants are aware
27

28
16
Plaintiff also reviewed Dr. Hughes’ personal email account and did not find

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1 of these productions because these documents were produced prior to Defendants’

2 request for sanctions. They therefore filed this joint statement in violation of the

3 Central District Civility and Professional Guidelines. See C.D. Cal. Civility & Prof.

4 Guidelines § 8 (“We will not move for court sanctions against opposing counsel

5 without first conducting a reasonable investigation and unless fully justified by the

6 circumstances and necessary to protect our client’s lawful interests.”); id. (“Before

7 filing a motion with the court, we will engage in more than a mere pro forma

8 discussion of its purpose in an effort to resolve the issue with opposing counsel.”)

9 In fact, Plaintiff collected ESI from 14 custodians. From those custodians,
10 Plaintiff collected from their BCS-owned or BCS-issued data sources listed in

11 Section 4.4 of the EDO, and collected from custodians’ personal, non-BCS accounts

12 if (1) Plaintiff had a reasonable belief that they may contain responsive ESI, and (2)

13 the custodian agreed to grant access thereto since Plaintiff does not otherwise have

14 possession, custody, or control of such accounts.

15 Defendant argues that Plaintiff did not produce specific documents, including
16 original screenshots, Signal communications, and emails from the personal email

17 accounts of Plaintiff’s leadership team. Plaintiff produced screenshots taken by

18 Beauregard and Jensen and explained above why “originals” are duplicative.

19 Personal emails and Signal communications are outside of Plaintiff’s possession,

20 custody, or control. Nonetheless, Plaintiff asked Dr. Hughes, Magill, and Jensen if

21 it could search their personal email accounts, and they agreed. Plaintiff then

22 produced emails from the personal email account of Jensen, and collected and will

23 produce emails from the personal email account of Magill (Dr. Hughes’ personal

24 email account did not contain responsive, non-privileged emails). Dr. Hughes

25 agreed to produce her Signal communications (Magill and Jensen did not). Thus,

26
27 any responsive, non-privileged emails to produce. The privileged emails, however,

28 are included in Plaintiff’s privilege log.

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1 Plaintiff will produce Dr. Hughes’ Signal communications, many of which are with

2 Magill and/or Jensen in any event.

3 Section 3(c) of the April 19, 2023 order states, “Plaintiff shall… forward the
4 following to the Court… a chart that lists on one axis the custodians identified in

5 Section 4.3 of the EDO and on the other axis the sources of documents / data

6 identified in Section 4.4 of the EDO.” Dkt. 52. Defendants argue that Plaintiff

7 violated this section because “Plaintiff’s chart failed to list the following persons

8 who Plaintiff has identified as members of the board of directors: Apryl Alexander,

9 Denette Boyd-King, Dorit Saberi, and Dee Anna Hassanpour.”

10 Plaintiff complied with the order by providing the requested chart to the Court
11 on April 24, 2023. Denette Boyd-King, Dorit Saberi, and Dee Anna Hassanpour

12 never served on Plaintiff’s Board of Directors and therefore did not need to be

13 included in the chart. See Boyd-King, Saberi, and Hassanpour Decls.17 Apryl

14 Alexander was not a member of Plaintiff’s Board of Directors until months after the

15 events giving rise to this action, and therefore Plaintiff reasonably viewed her as

16 being outside the scope of Section 4.3. Accordingly, Plaintiff did not include her in

17 the chart.

18 Section 2(a) of the April 26, 2023 order states, “Plaintiff shall… forward the
19 following to the Court… information obtained from each of the custodians

20 identified in Section 4.3 of the Electronic Discovery Order in effect in this case …

21 regarding whether they have one or more of any of the sources of documents / data

22 identified in Section 4.4 of the EDO.” Dkt. 54. Defendants argue that Plaintiff

23 violated this section because “Plaintiff did not provide any information for Jennifer

24 Magill, Noelle Beauregard, Ariana Conroyd, Shelby Kirchoff, Apryl Alexander,

25 Lenore Silverman, Denette Boyd-King, Dorit Saberi, or Dee Anna Hassanpour.”

26
17
Saberi has informed Plaintiff’s counsel that she is currently on vacation and
27 will submit a declaration upon her return. Lueddeke Decl. ¶ 3. Plaintiff will

28 supplement this filing with her declaration upon receipt.

61
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1 Plaintiff complied with the order by following the Court’s instruction to draft
2 and send a questionnaire to the custodians listed in Section 4.3 of the EDO asking if

3 which personal, non-BCS accounts they used, and if they consented to Plaintiff

4 searching them. Plaintiff sent the questionnaire to all custodians, including to

5 Alexander at Defendants’ request. Lueddeke Decl. Ex. C. Plaintiff did not send the

6 questionnaire to Boyd-King, Saberi, or Hassanpour because they have never served

7 on Plaintiff’s Board of Directors and therefore cannot be custodians. See Boyd-

8 King, Saberi, and Hassanpour Decls.18 Defendants appear to be complaining that

9 not all custodians responded. Plaintiff cannot compel individuals to respond to a

10 questionnaire, and the fact that some did not does not subject Plaintiff to sanctions.

11 Section 3(b) of the May 2, 2023 order states, “Plaintiff shall… forward the
12 following to the Court… information obtained from each of the custodians

13 identified in Section 4.3 of the EDO regarding (i) whether each custodian presently

14 is volunteering or otherwise associated with Plaintiff, and if so, what position he or

15 she holds within the organization, and (ii) whether each custodian voluntarily will

16 provide the documents requested by Defendants pursuant to the EDO. Dkt. 56.

17 Defendants argue that Plaintiff violated this section because “Plaintiff indicated that

18 it was unable to obtain information from two current board members: April

19 Alexander and Lenore Silverman. Plaintiff also failed to even list Denette Boyd-

20 King, Dorit Saberi, or Dee Anna Hassanpour.”

21 Plaintiff complied with the order by following the Court’s instruction to ask
22 the custodians listed in Section 4.3 of the EDO what their status is in relation to

23 Plaintiff and whether they consent to Plaintiff searching their personal, non-BCS

24 accounts. Plaintiff did not ask Boyd-King, Saberi, or Hassanpour because they have

25 never served on Plaintiff’s Board of Directors and therefore cannot be custodians.

26
18
Saberi has informed Plaintiff’s counsel that she is currently on vacation and
27 will submit a declaration upon her return. Lueddeke Decl. ¶ 3. Plaintiff will

28 supplement this filing with her declaration upon receipt.

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1 See Boyd-King, Saberi, and Hassanpour Decls.19 Defendants appear to be

2 complaining that just two custodians did not respond. Plaintiff cannot compel

3 individuals to respond to inquiries, and the fact that two did not does not subject

4 Plaintiff to sanctions.

5 (b) Plaintiff has not prejudiced Defendants.
6 Defendants argue that they are prejudiced because Plaintiff is “hiding critical
7 evidence” of its investigation into Defendants’ misconduct, which consists

8 specifically of original screenshots taken by Noelle Beauregard and Jesse Jensen,

9 and communications via certain custodians’ personal email accounts and Signal

10 accounts.20 Defendants also insinuate that Plaintiff is “hiding” this evidence

11 because it does not support Plaintiff’s case.

12 From the outset of this litigation, Defendants have repeatedly advanced a
13 narrative, without any basis, that Plaintiff is fabricating its claims and evidence

14 related to Defendants’ unauthorized access to Plaintiff’s systems. Then, McNamara

15 submitted a declaration in support of this joint statement in which she admits, for the

16 first time, that she did in fact access Plaintiff’s Google Console on March 11, 2022,

17 months after she resigned from Plaintiff, and used that access to ensure that

18 Whiteley maintained his access to the Google Console. McNamara Decl. ¶ 11.

19 Plaintiff contends that such access was unauthorized and violated the CFAA and the

20 CDAFA. Beauregard and Jensen took screenshots evidencing this unauthorized

21 access. As detailed below, Plaintiff produced those screenshots to Defendants.

22 On March 9, 2022 a de-index request related to Plaintiff’s website was made
23 through Plaintiff’s Google Console. Plaintiff did not discover the clandestine

24

25 19
Saberi has informed Plaintiff’s counsel that she is currently on vacation and
will submit a declaration upon her return. Lueddeke Decl. ¶ 3. Plaintiff will
26
supplement this filing with her declaration upon receipt.
27 20
Defendants also mention that Plaintiff has withheld Slack communications.
28 However, there is no argument with respect to Slack communications.

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1 request until March 11, 2022 and immediately began investigating the incident. See

2 Lueddeke Decl. Ex. I. Plaintiff determined that the only individuals with access to

3 Plaintiff’s Google Console were two then current volunteers of Plaintiff (Noelle

4 Beauregard and Megan Hurwitt) and two former volunteers of Plaintiff (Defendant

5 McNamara and Defendant Whiteley). Id. Ex. A (Jensen Depo. at 153:21-156:15.)

6 At that time, both McNamara and Whiteley were actively hostile to Plaintiff and had

7 taken steps to harm Plaintiff and its service of the TTI community. Id. Plaintiff

8 reasonably inferred that, given the timing of the unauthorized access, the two

9 individuals who were actively hostile to Plaintiff—McNamara and Whiteley—were

10 responsible for the de-index request, rather than two current volunteers who

11 volunteered their time to investigate the incident and would have no reason to make

12 the request. Id.

13 Plaintiff has no reason to hide evidence and it has not. To the contrary,
14 Plaintiff has produced 64,965 documents, comprising 770,224 pages. Plaintiff has

15 been an open book subject to the confines of governing law. Among its production

16 are the documents Defendants claims Plaintiff is “hiding” and the documents

17 Defendants claim they need: screenshots taken by Beauregard and Jensen, emails

18 from Plaintiff’s “leadership’s” personal email accounts, and Dr. Hughes’

19 communications from her personal Signal account.

20 (c) The requested evidentiary sanctions are unwarranted,
21 but in any event are overbroad and abusive.
22 Evidentiary sanctions are unwarranted in the first place for the reasons set
23 forth herein. The requested evidentiary sanctions are also inappropriate because

24 they are overbroad and are not tailored to the alleged prejudice suffered.

25 Any evidentiary sanction must be narrowly tailored to address the alleged
26 harm or prejudice caused. See, e.g., AMC Tech., LLC v. Cisco Sys., Inc., 2013 WL
27 3733390 (N.D. Cal. July 15, 2013) (with respect to evidentiary sanctions, “[t]he

28 court’s discretion is not, however, unbounded—it must weigh a number of factors to

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1 determine whether to grant sanctions, and if so, tailor the remedy according to the

2 conduct that triggered the sanction.”); Fed. R. Civ. Proc. R. 37(e)(2) (order may not

3 impose sanctions “greater than necessary to cure the prejudice”).

4 Requested sanctions 2 and 4 seek to prohibit Plaintiff from introducing as
5 evidence or referring to any document or any communication in the possession of a

6 custodian listed in Section 4.3 of the EDO, whether or not it was produced, unless

7 he or she agrees to search each of the 35 data sources listed in Section 4.4 of the

8 EDO. It is unclear what Defendants claim their harm is or how these sanctions

9 would remedy it. In reality, these sanctions would have the effect of prohibiting

10 Plaintiff from using essentially any document or communication in its production.

11 The sanctions are therefore not geared toward remedying any claimed harm, but to

12 punishing Plaintiff (and its witnesses) for not undertaking an overly burdensome

13 collection process that, as explained herein, it is neither required nor able to

14 undertake because the custodians’ personal data sources are outside of Plaintiff’s

15 possession, custody, or control.

16 Requested sanction 6 seeks to prohibit Plaintiff from introducing as evidence
17 or referring to any screenshot taken of Plaintiff’s Google Search Console.

18 Defendants argue that they have been prejudiced because they do not have

19 “original” screenshots taken by Noelle Beauregard or by Jesse Jensen. However,

20 Plaintiff has produced screenshots taken by Beauregard and by Jensen which show

21 the identical substantive information that “original” screenshots would show, so

22 there is no harm to remedy. To prevent Plaintiff from introducing or relying on

23 screenshot evidence—which shows McNamara’s unauthorized access to Plaintiff’s

24 Google Search Console—would be unduly prejudicial to Plaintiff. Indeed, it

25 appears that Defendants are actually trying to prevent Plaintiff from proving its

26 claims, not trying to remedy the alleged harm caused. There is no basis for the
27 imposition of this sanction.

28

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1 Requested sanctions 5 and 7 seek to prohibit Plaintiff from introducing as
2 evidence or referring to any evidence supporting Plaintiffs’ allegations related to

3 Defendants’ unauthorized access to Plaintiff’s Google Console and Defendants’ de-

4 indexing of Plaintiff’s website. It is unclear what Defendants claim their harm is or

5 how these sanctions would remedy it. Whether Defendants accessed Plaintiff’s

6 Google Search Console without authorization is an element of Plaintiff’s claims. In

7 her declaration submitted herewith, McNamara admitted she accessed Plaintiff’s

8 Google Console. Defendants are now trying to prevent Plaintiff from introducing all

9 evidence related thereto because it would hurt their defense, not because it would

10 remedy a claimed harm. There is no basis to impose these sanctions.

11 Requested sanctions 1 and 3 (similar to 2 and 4) seek to prohibit Plaintiff
12 from offering as evidence testimony of a custodian, or any document in the

13 possession of a custodian, who did not search each of the 35 data sources listed in

14 Section 4.4 of the EDO. It is unclear what Defendants claim their harm is or how

15 these sanctions would remedy it. Sanctions prohibiting every witness from

16 testifying at all if he or she did not authorize Plaintiff to search 35 of his or her

17 personal accounts, including PayPal and Venmo, is unreasonable and unnecessarily

18 punitive without good cause. The sanctions are therefore not geared toward

19 remedying any claimed harm, but to punishing Plaintiff (and its witnesses) for not

20 undertaking an overly burdensome collection process that, as explained herein, it is

21 neither required nor able to undertake because the custodians’ personal data sources

22 are outside of Plaintiff’s possession, custody, or control.

23 (d) The requested monetary sanctions are unwarranted.
24 Defendants request $23,680 in monetary sanctions from Plaintiff and DLA
25 Piper in connection with the preparation of this joint statement under FRCP

26 37(b)(2)(c). That rule state that such sanctions must not be imposed if “the failure
27 [to comply with obligations] was substantially justified or other circumstances make

28 an award of expenses unjust.”

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1 As set forth herein, Plaintiff has not violated the EDO, any court order, or its
2 preservation or discovery obligations. Plaintiff’s conduct was substantially justified

3 and the imposition of sanctions is unjust for the following reasons. Plaintiff

4 complied with the terms of the EDO under a reasonable interpretation supported by

5 governing law. Plaintiff complied with the post-IDC orders by following the

6 Court’s directives. Plaintiff complied with its preservation and discovery

7 obligations by producing responsive, nonprivileged documents from all applicable

8 data sources in its possession, custody, or control.

9 IT IS SO STIPULATED.
10

11 DATED: June 30, 2023 JULANDER, BROWN & BOLLARD
12

13 By: /s/ M. Adam Tate
14 M. Adam Tate
Catherine Close
15 Attorneys for Defendants
16 KATHERINE MCNAMARA and
JEREMY WHITELEY
17

18

19 DATED: June 30, 2023 DLA PIPER LLP
20

21 By: /s/ Tamany Bentz
22 Tamany Bentz
Jason Lueddeke
23
Michael P. Brown
24 Benjamin Grush
Attorneys for Plaintiff
25
BREAKING CODE SILENCE
26
27 ATTESTATION
28 All other signatories listed, and on whose behalf the filing is submitted,
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1 concur in the filing’s content and have authorized the filing.

2

3 /s/ M. Adam Tate
M. ADAM TATE
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 14th day of July, 2023, I electronically filed the
3 foregoing paper(s) with the Clerk of the Court using the ECF system which will

4 send notification to all parties of record or persons requiring notice.

5

6 /s/ Helene Saller
7 Helene Saller

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ACTIVE\600592492.3 CERTIFICATE OF SERVICE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 1 of 13 Page ID #:3685

1 irk O. Julander, Bar No. 132313
doj@jbblaw.com
2 Catherine A. Close, Bar No. 198549
cac@jbblaw.com
3 M. Adam Tate, Bar No. 280017
adam@jbblaw.com
4 JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
5 Irvine, California 92618
Telephone: (949) 477-2100
6 Facsimile: (949) 477-6355

7 Attorneys for Defendants
KATHERINE MCNAMARA and
8 JEREMY WHITELEY

9

10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12

13 BREAKING CODE SILENCE, a Case No. 2:22-cv-002052-SB-MAA
California 501(c)(3) nonprofit,
14
DECLARATION OF M. ADAM
15 TATE IN SUPPORT OF
16 Plaintiff, DEFENDANTS KATHERINE
MCNAMARA AND JEREMY
17
WHITELEY’S MOTION FOR
18 vs. EVIDENTIARY AND MONETARY
SANCTIONS UNDER FRCP 37(b)
19

20 KATHERINE MCNAMARA, an
Individual; JEREMY WHITELEY, an
21 individual; and DOES 1 through 50,
inclusive,
22

23 [Assigned to the Hon. Maria A. Audero] Defendants.
24

25

26
27

28

1
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 2 of 13 Page ID #:3686

1 DECLARATION OF M. ADAM TATE
2 I, M. ADAM TATE, declare as follows:
3 1. I am an attorney duly admitted to practice before this Court. I am a
4 partner with Julander, Brown & Bollard, attorneys of record for Defendants

5 KATHERINE MCNAMARA (“McNamara”) and JEREMY WHITELEY

6 (“Whiteley” collectively “Defendants”). I submit this Declaration in support of

7 Defendants’ Motion for Evidentiary and Monetary Sanctions Under FRCP 37(b). I

8 have personal knowledge of the following facts, and if called upon to testify, I could

9 and would competently testify thereto.

10 Plaintiff Identifies its Officers and Directors in Discovery
11 2. In addition to the instant action, my firm also represents Defendants in
12 the State Court action brought by Defendants against Plaintiff BREAKING CODE

13 SILENCE (“Plaintiff”), Vanessa Hughes (“Hughes”) and Jennifer Magill

14 (“Magill”).

15 3. In the context of the State action, my office caused Whiteley to
16 propound a set of special interrogatories to Plaintiff. Special Interrogatory No. 20

17 asked Plaintiff to identify its directors since March 2021. In response to Special

18 Interrogatory Number 20, Plaintiff identified the following directors and date

19 ranges:

20 1. Jennifer Magill, March 22, 2021 to present;1
21 2. Vanessa Hughes, March 22, 2021 to present;
22 3. Apryl Alexander, June 13, 2022 to present;
23 4. Lenore Silverman, January 18, 2022 to present;
24 5. Denette Boyd-King, August 15, 2022 to present;
25 6. Dorit Saberi, June 18, 2022 to present; and
26 7. Dee Anna Hassanpour, June 15, 2022 to present.
27

28 1
Plaintiff’s interrogatory response is dated September 21, 2022.
2
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 3 of 13 Page ID #:3687

1 In addition, in response to Special Interrogatory No. 21, Plaintiff identified the

2 following persons as officers of Plaintiff: Jenny Magill, Bobby Cook, Ariana

3 Conroyd, Noelle Beauregard, Jesse Jensen, Megan Hurwitt, Abby Bleich, Dr.

4 Athena Kolbe, Bria Karnedy, and Tracy Baker. A true and correct copy of

5 Plaintiff’s interrogatory responses which incorporate the interrogatory propounded

6 is attached as Exhibit 1.

7 Plaintiff Violated the EDO By Failing to Collect from Each of the
8 Custodians and Data Sources
9 4. On September 13, 2022, the Court signed “Stipulated Order Re:
10 Amended Joint E-Discovery Plan and Protocol for Discovery of Electronically

11 Stored information” which is available on the Court’s docket as Dkt. No. 35 (the

12 “EDO”). As is relevant to the instant motion, the EDO provides that the parties

13 would collect and produce documents from each of the data sources identified in

14 Section 4.4 for each of the custodians listed in Section 4.3.

15 5. On March 31, 2023, I took the depositions of Bobby Cook and his wife
16 Noelle Beauregard – both of which are named custodians in section 4.3 of the EDO.

17 As is relevant to the instant motion, Bobby Cook and Noelle Beauregard testified

18 that (1) they had been officers of Plaintiff but that they had recently resigned, and

19 (2) their personal data sources were not collected by Plaintiff before their

20 resignations. A true and correct copy of relevant portions of Bobby Cook’s

21 Deposition Transcript is attached hereto as Exhibit 2. A true and correct copy of

22 relevant portions of Noelle Beauregard’s Deposition Transcript is attached hereto as

23 Exhibit 3.

24 6. On April 14, 2023 I took the deposition of Jesse Jensen in his capacity
25 as the Person Most Qualified for Plaintiff. As is relevant to the instant motion, Jesse

26 Jensen also confirmed that his personal data sources were not collected by Plaintiff.
27 A true and correct copy of relevant portions of Jesse Jensen’s, as Plaintiff’s Person

28 Most Qualified, Deposition Transcript is attached hereto as Exhibit 4.

3
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 4 of 13 Page ID #:3688

1 Plaintiff Violated Several Court Orders following the Informal Discovery
2 Conferences
3 7. On April 19, 2023, I attended the first of the Informal Discovery
4 Conferences (“IDC 3” or collectively the “IDCs”) between the parties regarding

5 Plaintiff’s failure to comply with the EDO. Following IDC 3, the Court ordered

6 Plaintiff to provide a chart that lists the custodians identified in section 4.3 of the

7 EDO on one axis and the sources of documents/data identified in Section 4.4 of the

8 EDO on the other axis, and indicate whether or not the particular data sources had

9 been searched for each custodian. (See Dkt. 52.)

10 8. On April 24, 2023, I received an email from Plaintiff’s counsel
11 attaching the chart ordered by the Court. According to the chart, Plaintiff did not

12 collect anything whatsoever from Lenore Silverman, Apryl Alexander, Denette

13 Boyd-King, Dorit Saberi, or Dee Anna Hassanpour. With respect to the remaining

14 custodians, the chart included a giant grey block that covered most of the chart

15 indicating that most of the sources from most of the custodians had not been

16 collected. A true and correct copy of the chart is attached hereto as Exhibit 5.

17 9. Later that day, I attended another IDC (“IDC 4”). During the IDC,
18 Plaintiff took the position that it never agreed to collect anything from the

19 custodians outside of the Breaking Code Silence emails and any documents that are

20 on Plaintiff’s Google Drive. I attempted to explain that the plain language of the

21 EDO proves otherwise. Following IDC 4, the Court ordered Plaintiff to provide

22 information obtained from each of the custodians identified in Section 4.3 of the

23 EDO regarding whether they had one or more of any of the sources identified in

24 Section 4.4 of the EDO, and whether they were willing to search for documents.

25 (See Dkt. 54.)

26 10. On April 27, 2023, I received an email from Plaintiff’s counsel
27 attaching a questionnaire for Defendants to sign. A true and correct copy of the

28 email and its accompanying questionnaires are attached hereto as Exhibit 6.

4
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 5 of 13 Page ID #:3689

1 11. On May 1, 2023, I received an email from Plaintiff’s counsel attaching
2 questionnaires and emails purporting to be completed by Bobby Cook, Eugene

3 Furnace, Jesse Jensen, Meg Hurwitt, and Vanessa Hughes. Plaintiff did not provide

4 questionnaires for Jennifer Magill, Noelle Beauregard, Ariana Conroyd, Shelby

5 Kirchoff, Apryl Alexander, Lenore Silverman, Denette Boyd-King, Dorit Saberi, or

6 Dee Anna Hassanpour – all of which are custodians. A true and correct copy of the

7 email and its accompanying questionnaires are attached hereto as Exhibit 7.

8 12. Included with the questionnaires was an email from Bobby Cook.
9 From this email, it is possible to see the instructions that the custodians were given

10 by Plaintiff’s counsel. The email did not inform the custodians (1) that the Court

11 had ordered Plaintiff to fill out the questionnaire, or (2) Plaintiff had already

12 stipulated to provide the information through the EDO, or (3) that should the

13 custodians refuse to voluntarily provide the information, they may be sent

14 subpoenas. Rather, the email was phrased in such a way that it effectively

15 discouraged voluntary compliance. A true and correct copy of the email from

16 Bobby Cook is attached hereto Exhibit 8.

17 13. Later that day on May 1, 2023, I attended IDC 5. Following IDC 5, the
18 Court ordered Plaintiff to obtain information from each of the custodians identified

19 in Section 4.3 of the EDO regarding (i) whether each custodian presently is

20 volunteering or otherwise associated with Plaintiff, and if so, what position he or she

21 holds within the organization, and (ii) whether each custodian will voluntarily

22 provide the documents requested by Defendants pursuant to the EDO. (Dkt. 56.)

23 14. On May 3, 2023, I sent counsel for Plaintiff a list of persons who I
24 believed had been called to the board, but from whom Plaintiff had not collected

25 anything, including Denette Boyd-King, Dorit Saberi, and Dee Anna Hassanpour

26 with the expectation that Plaintiff would provide information for such persons in
27 compliance with the Court’s order. A true and correct copy of my email listing the

28 board members is attached hereto as Exhibit 9.

5
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 6 of 13 Page ID #:3690

1 15. On May 3, 2023, I received an email from Plaintiff to the Court with
2 some of the information that Plaintiff was ordered to provide. Notably, counsel’s

3 email attached a chart indicating that counsel had not heard anything from two

4 current board members: Apryl Alexander and Lenore Silverman. The chart also

5 failed to list Denette Boyd-King, Dorit Saberi, or Dee Anna Hassanpour. The chart

6 further indicated that most of the custodians were not willing to search their

7 personal data sources. In this respect, Vanessa Hughes is the sole custodian person

8 who has indicated that she willing to search for documents on Signal. The majority

9 of the custodians also indicated that they are unwilling to search for documents on

10 their personal emails. A true and correct copy of this email that I received and its

11 accompanying chart are attached hereto as Exhibit 10.

12 16. On May 3, 2023, I attended the final IDC (“IDC 6”) on this issue.
13 During IDC 6, Tamany Bentz misrepresented to the Court that Denette Boyd-King,

14 Dorit Saberi, or Dee Anna Hassanpour were never on the board of directors.

15 Following the IDC, I sent an email to see if I misunderstood what Ms. Bentz said.

16 In response, Ms. Bentz repeated her misrepresentation in writing. A true and correct

17 copy of Ms. Bentz’s May 4, 2023 email regarding board members is attached hereto

18 as Exhibit 11.

19 17. Ms. Bentz’s misrepresentation not only contradicts Plaintiff’s sworn
20 discovery responses, but is also at odds with the agreements produced by Plaintiff in

21 this action. Attached collectively hereto as Exhibit 12 are agreements signed by

22 Denette Boyd-King, Dorit Saberi, or Dee Anna Hassanpour indicating that they each

23 agreed to be members of Plaintiff’s board of directors. These agreements have been

24 produced in this action by Plaintiff.

25 18. Throughout the IDCs the Court made a great effort to encourage
26 Plaintiff to have the custodians voluntarily gather documents from their data
27 sources. Repeatedly the Court warned that unless they complied the custodians

28 were likely to be served with subpoenas and Defendants were likely to bring a

6
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 7 of 13 Page ID #:3691

1 motion under Rule 37(b) and that the consequences could be severe – including the

2 possibility of terminating sanctions.

3 The Missing Screenshots and Communications
4 19. To the best of my knowledge, as of March 31, 2023, when I took the
5 deposition of Noelle Beauregard, Plaintiff had not produced any screen shots of the

6 Google Search Console / Google Webmaster.

7 20. During the deposition, Noelle Beauregard testified that she took
8 approximately twenty-five screen shots of the Google Search Console / Webmaster

9 in March 2022. When I inquired what happened to the screenshots, Plaintiff’s

10 counsel, Michael Brown, indicated that he had some of them. I demanded that I be

11 sent the screenshots and, during a break, Mr. Brown sent me an email with seven

12 screen shots – none of which had the original metadata and none of which had been

13 previously produced. It was apparent to me that Plaintiff had identified the

14 screenshots in advance of the deposition, but had failed to produce them.

15 21. On April 4, 2023, after the deposition of Noelle Beauregard, Plaintiff
16 made a production of documents. As is relevant here, the production included the

17 seven screen shots referenced above. The document production also included 4

18 screen shots with metadata suggesting that the screen shots were taken by Jesse

19 Jensen in March 2023 – a year after the alleged “de-indexing.”

20 22. On April 14, 2023, I took the deposition of Jesse Jensen in his capacity
21 as the Person Most Qualified for Plaintiff. As is relevant to the instant motion, I

22 showed Jesse Jensen all of the screenshots of the Google Search Console / Google

23 Webmaster of which I was aware and I asked Jesse Jensen if he had taken additional

24 screenshots in March 2022. Jesse Jensen explained that he had taken screenshots in

25 March 2022 and that he was surprised that the screenshots had not yet been

26 produced as he gave them to Plaintiff’s counsel a year prior.
27 23. On April 19, 2023, I sent an email to counsel for Plaintiff explaining
28 that I believed that most of the screenshots taken by Noelle Beauregard had not been

7
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 8 of 13 Page ID #:3692

1 produced and that none of the screenshots taken by Jesse Jensen in March 2022 had

2 been produced. I asked counsel to either correct my misunderstanding or explain

3 why the screenshots had not been produced.

4 24. On May 4, 2023, having not heard a response, I sent a follow-up email
5 asking whether DLA Piper was really not going to tell me whether or not Plaintiff

6 had produced the screenshots. A true and correct copy of this email chain is

7 attached hereto as Exhibit 13.

8 25. On May 5, 2023, having still not heard a heard a response from
9 opposing counsel, I sent an email asking counsel to provide me with some times

10 during which we could meet and confer prior to me requesting an IDC. In response,

11 Tamany Bentz finally responded that the screen shots were attached to an email

12 bates numbered BCS_0574573-74.

13 26. The email referenced by Ms. Bentz was produced that same morning
14 on May 5, 2023. The email purports to be from Noelle Beauregard attaching 27

15 screen shots. However, there is no metadata associated with the screen shots and

16 none of the screen shots appear to be the ones taken by Jesse Jensen in March 2022.

17 27. These same screenshots appear to have been produced several times
18 and attached to various emails in the May 5, 2023 production – but none of the

19 screen shots have any metadata associated with them making it impossible for my

20 office to tell when the screenshots were taken, by whom, and critically, whether the

21 screenshots have been modified or altered.

22 28. The failure to include the metadata is more than a mere technicality.
23 Notably, Plaintiff has indicated that it knows how easy it is to modify screenshots.

24 In this respect, Jesse Jensen, Plaintiff’s purported security expert, texted his co-

25 investigator, Noelle Beauregard, “I’m not sure screenshots meet the burden of proof

26 for the court because they can be easily falsified.” A true and correct copy of the
27 above referenced text message, which was produced by Noelle Beauregard is

28 attached hereto as Exhibit 14.

8
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 9 of 13 Page ID #:3693

1 29. On April 20, 2023, I took the deposition of Bill Boyles. Bill Boyles is
2 a former board member of BCS. A true and correct copy of relevant portions of Bill

3 Boyles’ Deposition Transcript is attached hereto as Exhibit 15.

4 The Court Should Issue Monetary Sanctions
5 30. The following costs have been incurred in connection with this issue:
6 a. M. Adam Tate
7 i. I started as an associate for JBB in September 2016 and
8 am now a partner. I received my J.D., with honors, from the J. Rueben Clark
9 Law School (BYU) in 2011. I have practiced commercial litigation in Orange
10 County since passing the bar in 2011. I am an experienced trial and appellate
11 attorney.
12 ii. I have been lead counsel on this matter since this action
13 was filed. I spent over 20.0 hours meeting and conferring with opposing
14 counsel, appearing at the many IDCs, and drafting this Motion and supporting
15 declarations. My billing rate for this matter was $425.00 per hour until
16 February 2023 when it was increased to $470.00 upon becoming a partner in
17 the firm. Hourly rates for senior associates/partners in commercial litigation
18 firms such as JBB with my experience in Los Angeles and Orange County
19 typically meet or exceed this hourly rate.
20 iii. It is anticipated that I will spend an additional 5.0 hours in
21 reviewing Plaintiff’s Opposition to this Motion, drafting the Reply to
22 Opposition, and appearing at the hearing on this Motion.
23 b. In total, Defendants have, and will, reasonably incur $11,750 for
24 my time connection with this Motion.
25 c. Catherine A. Close
26 i. Ms. Close has been an associate with JBB since May
27 2002. She received her J.D., with honors, from the Whittier College School of
28 Law in 1998. She has practiced commercial litigation in Orange County since

9
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 10 of 13 Page ID #:3694

1 passing the bar in 1998. She is an experienced trial lawyer, participating in
2 numerous trials of complex business matters in both state and federal courts.
3 She has also drafted many appellate briefs.
4 ii. Ms. Close is the senior associate on this matter and has
5 spent 7.30 hours meeting and conferring with opposing counsel, appearing at
6 IDCs, and assisting in preparing this Motion. Her billing rate for this matter
7 has been between $430.00 (2022) and $450.00 (since January 2023) per hour.
8 Based on her experience, hourly rates for senior litigation associates with her
9 experience in business litigation firms in Los Angeles and Orange County
10 typically meet or exceed her hourly rate.
11 iii. It is anticipated that Ms. Close will spend an additional 2.0
12 hours in reviewing Plaintiff’s Opposition to this Motion, drafting the Reply to
13 Opposition, and appearing at the hearing on this Motion.
14 iv. In total, Defendants have, and will, reasonably incur
15 $4,185 for Ms. Close’s connection with this Motion.
16 d. Adam J. Schwartz
17 i. Adam J Schwartz has been a solo practitioner since 2012.
18 Prior to that time, he was a litigation associate at Paul Hastings for nearly five
19 years. Mr. Schwartz received his J.D., with honors, from The George
20 Washington University Law School in Washington, D.C. in 2007, where he
21 was a member of the International Law Review and was a Thurgood Marshall
22 Scholar his 1L year. Mr. Schwartz has practiced white collar criminal and
23 commercial litigation in Washington, D.C. and Los Angeles County since
24 passing the bar in 2007. He is admitted to practice law in both California and
25 the District of Columbia. He is an experienced litigator, with experience in
26 business disputes, as well as white collar criminal, employment, defamation,
27 copyright, and trademark matters.
28 ii. Mr. Schwartz has worked as an independent contractor

10
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 11 of 13 Page ID #:3695

1 assisting JBB in this action since July 2022 and became co-counsel for
2 Defendants in this action in August 2022. Mr. Schwartz has spent 7.0 hours
3 meeting and conferring with opposing counsel, appearing at IDCs, and
4 assisting in preparing this Motion. Mr. Schwartz’s billing rate for this matter
5 is $300.00 and, based on over 15 years of civil litigation experience, the rate
6 charged on this matter is the usual and customary rate Mr. Schwartz charges
7 for legal work performed in the Los Angeles area. Hourly rates for
8 commercial litigators with Mr. Schwartz’s experience in Los Angeles and
9 Orange County typically meet or exceed this hourly rate.
10 iii. It is anticipated that Mr. Schwartz will spend an additional
11 1.0 hour in reviewing Plaintiff’s Opposition to this Motion, drafting the Reply
12 to Opposition, and appearing at the hearing on this Motion.
13 iv. In total, Defendants have, and will, reasonably incur
14 $2,400 for Mr. Schwartz’s connection with this Motion.
15 e. Rebekah Chamberlin
16 i. Rebekah Chamberlin has worked for JBB as a law clerk
17 since August 2021. She passed the California Bar this last month and was
18 recently promoted to be an associate attorney. Ms. Chamberlin received her
19 J.D. from the J. Rueben Clark Law School (BYU) in 2021.
20 ii. Ms. Chamberlin spent 28.3 hours assisting the attorneys
21 with legal research with respect to this Motion, preparing this Motion and the
22 analysis of the deficiencies in Plaintiff’s document productions. Ms.
23 Chamberlin’s billing rate for this matter is $150.00 an hour. Based on my
24 experience, hourly rates for law clerks with Ms. Chamberlin’s experience in
25 business litigation firms in Los Angeles and Orange County typically meet or
26 exceed this hourly rate.
27 iii. In total, Defendants have, and will, reasonably incur
28 $4,245 for Ms. Chamberlin’s time connection with this Motion.

11
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 12 of 13 Page ID #:3696

1 f. Helene Saller
2 i. Helene Saller has worked for JBB as a litigation paralegal
3 since 2019, specializing in legal research and filings, trial preparation,
4 discovery and document control. She studied political science at Arizona
5 State University and received her paralegal certificate from Pasadena City
6 College in 1992. She has worked in the legal industry since 1992 for both
7 large and small firms, with extensive experience in the areas of civil practice,
8 employment law, medical malpractice, and complex litigation.
9 ii. Ms. Saller has been the lead paralegal in this matter since
10 this action was filed. Ms. Saller has spent 4.0 hours helping to prepare this
11 instant motion. Ms. Saller’s billing rate for this matter is $200.00 an hour.
12 Based on my experience, hourly rates for senior litigation paralegals with Ms.
13 Saller’s experience in business litigation firms in Los Angeles and Orange
14 County typically meet or exceed this hourly rate.
15 iii. It is anticipated that Ms. Saller will spend an additional
16 1.50 hours in processing Plaintiff’s Opposition to this Motion, and finalizing
17 the Reply to Opposition.
18 iv. In total, Defendants have, and will, reasonably incur
19 $1,100 for Ms. Saller’s time connection with this Motion.
20 31. In total, Defendants have, and will, reasonably incur $23,680 in
21 attorneys’ fees and costs in connection with this Motion, which could have been

22 avoided

23 I declare under penalty of perjury under the laws of the United States that the
24 foregoing is true and correct.

25 Executed June 30, 2023, at Irvine, California.
26
27 , /s/ M. Adam Tate
M. ADAM TATE
28

12
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 98-1 Filed 07/14/23 Page 13 of 13 Page ID #:3697

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 14th day of July, 2023, I electronically filed the
3 foregoing paper(s) with the Clerk of the Court using the ECF system which will

4 send notification to all parties of record or persons requiring notice.

5

6 /s/ Helene Saller
7 Helene Saller
8

9

10

11

12

13

14

15

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28

CERTIFICATE OF SERVICE
Case 2:22-cv-02052-MAA Document 98-17 Filed 07/14/23 Page 1 of 4 Page ID #:3854

1 Dirk O. Julander, Bar No. 132313
doj@jbblaw.com
2 Catherine A. Close, Bar No. 198549
cac@jbblaw.com
3 M. Adam Tate, Bar No. 280017
adam@jbblaw.com
4 JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
5 Irvine, California 92618
Telephone: (949) 477-2100
6 Facsimile: (949) 477-6355

7 Attorneys for Defendants
KATHERINE MCNAMARA and
8 JEREMY WHITELEY

9

10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12

13 BREAKING CODE SILENCE, a Case No. 2:22-cv-002052-SB-MAA
California 501(c)(3) nonprofit,
14
DECLARATION OF CATHERINE
15 A. CLOSE IN SUPPORT OF JOINT
16 Plaintiff, STIPULATION RE: DEFENDANTS
KATHERINE MCNAMARA AND
17
JEREMY WHITELEY’S MOTION
18 vs. FOR EVIDENTIARY, AND
MONETARY SANCTIONS UNDER
19
RULE 37 OF THE FEDERAL
20 KATHERINE MCNAMARA, an RULES OF CIVIL PROCEDURE
Individual; JEREMY WHITELEY, an
21 individual; and DOES 1 through 50,
inclusive,
22

23
Defendants. [Assigned to the Hon. Maria A. Audero] 24

25

26
27

28

1
DECLARATION OF CATHERINE A. CLOSE
Case 2:22-cv-02052-MAA Document 98-17 Filed 07/14/23 Page 2 of 4 Page ID #:3855

1 DECLARATION OF CATHERINE A. CLOSE
2 I, CATHERINE A. CLOSE, declare as follows:
3 1. I am an attorney duly admitted to practice before this Court. I am an
4 associate with Julander, Brown & Bollard, attorneys of record for Defendants

5 KATHERINE MCNAMARA (“McNamara”) and JEREMY WHITELEY

6 (“Whiteley” collectively “Defendants”). I submit this Declaration in support of the

7 Joint Stipulation Re: Defendants’ Motion for Evidentiary and Monetary Sanctions

8 Under FRCP 37(b). I have personal knowledge of the following facts, and if called

9 upon to testify, I could and would competently testify thereto.

10 2. Attached hereto as Exhibit 16 is a true and correct copy of the Order
11 Re: Jury/Court Trial issued by the Court on July 14, 2022 and filed as ECF 31

12 setting forth the Court’s original scheduling order for this matter.

13 3. Attached hereto as Exhibit 17 is a true and correct copy of the Court’s
14 Minute Order on Informal Discovery Conference No. 6 issued by the Court on May

15 4, 2023 and filed as ECF 58 which amends the Court’s original scheduling order in

16 the following respects:

17 Date Event
18 07/02/2023 Expert Disclosure (Initial)
07/30/2023 Deadline to Complete Mediation
19 08/01/2023 Expert Disclosure (Rebuttal)
20 08/30/2023 Non-Expert Discovery Cut-Off
09/21/2023 Expert Discovery Cut-Off
21 10/13/2023 Last Day to Hear Dispositive Motions
22 12/04/2023 Trial Filings (First Round)
12/11/2023 Trial Filings (Second Round)
23 01/03/2024 Final Pretrial Conference
24 01/16/2024 Jury Trial (first day)

25
4. Attached hereto as Exhibit 18 is a true and correct copy of the Court’s
26
Minute Order on Informal Discovery Conference Nos. 2 and 3 issued by the Court
27
on April 19, 2023 and filed as ECF 52.
28

2
DECLARATION OF CATHERINE A. CLOSE
Case 2:22-cv-02052-MAA Document 98-17 Filed 07/14/23 Page 3 of 4 Page ID #:3856

1 5. Attached hereto as Exhibit 19 is a true and correct copy of the Court’s
2 Minute Order on Informal Discovery Conference No. 4 issued by the Court on April

3 26, 2023 and filed as ECF 54.

4 6. Attached hereto as Exhibit 20 is a true and correct copy of the Court’s
5 Minute Order on Informal Discovery Conference No. 5 issued by the Court on May

6 2, 2023 and filed as ECF 56.

7 7. Attached hereto as Exhibit 21 is a true and correct copy of the
8 Stipulated Order Re: Amended Joint E-Discovery Plan and Protocol for Discovery

9 of Electronically Stored Information issued by the Court on September 13, 2022 and

10 filed as ECF 41.

11 I declare under penalty of perjury under the laws of the United States that the
12 foregoing is true and correct.

13 Executed June 30, 2023, at Irvine, California.
14

15 , /s/ Catherine A. Close
CATHERINE A. CLOSE
16

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3
DECLARATION OF CATHERINE A. CLOSE
Case 2:22-cv-02052-MAA Document 98-17 Filed 07/14/23 Page 4 of 4 Page ID #:3857

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 14th day of July, 2023, I electronically filed the
3 foregoing paper(s) with the Clerk of the Court using the ECF system which will

4 send notification to all parties of record or persons requiring notice.

5

6 /s/ Helene Saller
7 Helene Saller
8

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CERTIFICATE OF SERVICE
Case 2:22-cv-02052-MAA Document 98-24 Filed 07/14/23 Page 1 of 4 Page ID #:3920

1 Dirk O. Julander, Bar No. 132313
doj@jbblaw.com
2 Catherine A. Close, Bar No. 198549
cac@jbblaw.com
3 M. Adam Tate, Bar No. 280017
adam@jbblaw.com
4 JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
5 Irvine, California 92618
Telephone: (949) 477-2100
6 Facsimile: (949) 477-6355

7 Attorneys for Defendants
KATHERINE MCNAMARA and
8 JEREMY WHITELEY

9

10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12

13 BREAKING CODE SILENCE, a Case No. 2:22-cv-002052-SB-MAA
California 501(c)(3) nonprofit,
14
DECLARATION OF JEREMY
15 WHITELEY IN SUPPORT OF
16 Plaintiff, DEFENDANTS KATHERINE
MCNAMARA AND JEREMY
17
WHITELEY’S MOTION FOR
18 vs. EVIDENTIARY AND MONETARY
SANCTIONS UNDER FRCP 37(b)
19

20 KATHERINE MCNAMARA, an
Individual; JEREMY WHITELEY, an
21 individual; and DOES 1 through 50,
inclusive,
22

23 [Assigned to the Hon. Maria A. Audero] Defendants.
24

25

26
27

28

DECLARATION OF JEREMY WHITELEY
Case 2:22-cv-02052-MAA Document 98-24 Filed 07/14/23 Page 2 of 4 Page ID #:3921

1 DECLARATION OF JEREMY WHITELEY
2 I, JEREMY WHITELEY, declare as follows:
3 1. I am over the age of eighteen and a Defendant in the above-captioned
4 action. I submit this Declaration in support of Defendants Katherine McNamara

5 (“McNamara”) and Jeremy Whiteley’s (collectively “Defendants”) Motion for

6 Evidentiary and Monetary Sanctions Under FRCP 37(b) filed on behalf of myself

7 and Ms. McNamara. I have personal knowledge of the following facts, and if called

8 upon to testify, I could and would competently testify thereto.

9 2. I worked for approximately three months as a volunteer for Plaintiff
10 BREAKING CODE SILENCE (“BCS”). During that time, I was subjected to

11 horrendous abuse by BCS’s board president, Vanessa Hughes (“Hughes”). Hughes

12 constantly targeted me on account of my sexuality. Below are some representative

13 examples:

14 a. On April 20, 2021, during a chat conversation, Hughes told me
15 to “suck her dick” and “stop being a mangina.”

16 b. On May 3, 2021, Hughes again called me a “mangina” and told
17 me to “suck her dick” and “eat her ass.” When I asked Hughes to stop calling me

18 names and being rude, Hughes responded by telling me to go eat some Chick-Fil-A

19 and get over it.1

20 c. On May 13, 2021, Hughes called me on the phone to belittle me.
21 During the phone call, Hughes again told me that I need to “suck her dick” and

22 “stop being a mangina.”

23 d. On May 20, 2021, Hughes told me “suck the dicks and eat every
24 ass” on an interim board chat message.

25

26 1
Chick-Fil-A, which was founded by a Southern Baptist, is well known for
27 historically donating funds to anti-LGBTQ+ organizations, causes and agendas. As
recently as 2012, its President and COO publicly denounced gay marriage and as
28
recently as 2021 fought to keep the Equality Act from passing.
2
DECLARATION OF JEREMY WHITELEY
Case 2:22-cv-02052-MAA Document 98-24 Filed 07/14/23 Page 3 of 4 Page ID #:3922

1 e. On May 20, 2021, Hughes called me and again referred to me as
2 a “mangina,” told me I was terrible, gaslighted me, and yelled at me. When I later

3 sent Hughes a Facebook message inquiring about her anger with me, she responded

4 that she “hate[s] it when [her] whole ass gets fucked.”

5 f. On June 19, 2021, Hughes called me on a Saturday night and
6 told me how terrible I was, to stop “being mangina,” and to “suck her dick.”

7 3. The constant abuse that I suffered at the hands of Hughes was
8 ultimately too much and I had no alternative but to resign.

9 I declare under penalty of perjury under the laws of the United States that the
10 foregoing is true and correct.

11 Executed June 30, 2023, at Scottsdale, Arizona.
12

13 /s/ Jeremy Whiteley
JEREMY WHITELEY
14

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3
DECLARATION OF JEREMY WHITELEY
Case 2:22-cv-02052-MAA Document 98-24 Filed 07/14/23 Page 4 of 4 Page ID #:3923

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this ___ day of June, 2023, I electronically filed the
3 foregoing paper(s) with the Clerk of the Court using the ECF system which will

4 send notification to all parties of record or persons requiring notice.

5

6 /s/ Helene Saller
7 Helene Saller
8

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CERTIFICATE OF SERVICE
Case 2:22-cv-02052-MAA Document 98-25 Filed 07/14/23 Page 1 of 5 Page ID #:3924

1 Dirk O. Julander, Bar No. 132313
doj@jbblaw.com
2 Catherine A. Close, Bar No. 198549
cac@jbblaw.com
3 M. Adam Tate, Bar No. 280017
adam@jbblaw.com
4 JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
5 Irvine, California 92618
Telephone: (949) 477-2100
6 Facsimile: (949) 477-6355

7 Attorneys for Defendants
KATHERINE MCNAMARA and
8 JEREMY WHITELEY

9

10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12

13 BREAKING CODE SILENCE, a Case No. 2:22-cv-002052-SB-MAA
California 501(c)(3) nonprofit,
14
DECLARATION OF KATHERINE
15 MCNAMARA IN SUPPORT OF
16 Plaintiff, DEFENDANTS KATHERINE
MCNAMARA AND JEREMY
17
WHITELEY’S MOTION FOR
18 vs. EVIDENTIARY AND MONETARY
SANCTIONS UNDER FRCP 37(b)
19

20 KATHERINE MCNAMARA, an
Individual; JEREMY WHITELEY, an
21 individual; and DOES 1 through 50,
inclusive,
22

23 [Assigned to the Hon. Maria A. Audero] Defendants.
24

25

26
27

28

DECLARATION OF KATHERINE MCNAMARA
Case 2:22-cv-02052-MAA Document 98-25 Filed 07/14/23 Page 2 of 5 Page ID #:3925

1 DECLARATION OF KATHERINE MCNAMARA
2 I, KATHERINE MCNAMARA, declare as follows:
3 1. I am over the age of eighteen and a Defendant in the above-captioned
4 action. I submit this Declaration in support of Defendants Katherine McNamara and

5 Jeremy Whiteley’s (“Whiteley”; collectively “Defendants”) Motion for Evidentiary

6 and Monetary Sanctions Under FRCP 37(b) filed on behalf of myself and Mr.

7 Whiteley. I have personal knowledge of the following facts, and if called upon to

8 testify, I could and would competently testify thereto.

9 2. Every year, thousands of children who are branded as “problem
10 children” for a variety of reasons are sent, often against their wills, to congregate

11 care facilities (sometimes known as “boot camps,” “behavioral modification

12 schools,” or other similar monikers). Although these congregate care facilities

13 market themselves as providers of therapeutic treatment, many simply collect public

14 funding and abuse and mistreat the children, including physical, verbal, and sexual

15 abuse, isolation, forced hard labor, chemical sedation, sleep and food deprivation,

16 attack therapy, aversion therapy, etc.

17 3. For decades, advocates have sought to help raise attention to these
18 issues, reform the congregate care facilities, and put an end to institutional child

19 abuse. The phrase “Breaking Code Silence” is commonly used by those involved in

20 the movement to raise attention to these issues because “Code Silence” is a common

21 punishment used by congregate care facilities.

22 4. I have been an active advocate of the anti-Troubled Teen Industry
23 movement for over five years. In 2021, while I was working with a different group

24 of survivors and before Plaintiff BREAKING CODE SILENCE (“BCS”) was

25 organized, I purchased the domain name breakingcodesilence.org (the “.Org

26 Domain”) in my own name and with my own funds. BCS was organized a year
27 later on or about March 22, 2021.

28

2
DECLARATION OF KATHERINE MCNAMARA
Case 2:22-cv-02052-MAA Document 98-25 Filed 07/14/23 Page 3 of 5 Page ID #:3926

1 5. During the time that I volunteered for BCS, I personally witnessed
2 Vanessa Hughes (“Hughes”) harass Whiteley on account of Whiteley’s sexuality.

3 Among other things, I witnessed Hughes refer to Whiteley as a “mangina” and a

4 “queen” and I also witnessed Hughes refer to Whiteley as having “female energy.”

5 6. Whiteley only volunteered for BCS for approximately three months
6 before the board of directors received notice that Whiteley was resigning due to

7 Hughes’s harassment. Immediately after the board of directors received Whiteley’s

8 notice of resignation, Hughes began pressuring myself and the other members of the

9 board of directors to sue Whiteley. When I, and another member of the board, Bill

10 Boyles, explained that BCS did not have a good reason to sue Whitelely, Hughes

11 asked us to “brainstorm” up a reason to sue Whiteley. We refused.

12 7. Hughes’s harassment was not limited to Whiteley. Hughes also
13 harassed other gay volunteers including myself. The harassment of gay volunteers

14 was a contributing factor which led me to submit a formal complaint about

15 Hughes’s behavior to BCS’s board of directors. I have been informed, and Bill

16 Boyles has testified in this action, that after I submitted my complaint, Hughes

17 began threatening to sue me in retaliation for making the complaint.

18 8. I resigned from BCS in December 2021 after the harassment became
19 too much and after Hughes and Magill admitted to misappropriating funds but

20 refused to rectify the situation. At the time of my resignation, I warned both Hughes

21 and Magill that I would be reporting their financial misconduct to the California

22 Attorney General – which I shortly did thereafter. After my resignation, BCS,

23 through its attorneys, attempted to coerce me to assign my intellectual property to

24 BCS. I ultimately declined to do so.

25 9. Approximately three months after my resignation, on March 11, 2022, I
26 received an email from Google informing me that a BCS email address was added to
27 the Google Webmaster/Google Search Console for the.Org Domain. I believed that

28 BCS was attempting interfere with my domain that I registered and paid for. So that

3
DECLARATION OF KATHERINE MCNAMARA
Case 2:22-cv-02052-MAA Document 98-25 Filed 07/14/23 Page 4 of 5 Page ID #:3927

1 someone else could witness BCS’s actions, I used my own personal Google account

2 to give Whiteley “ownership” administrative capabilities to the .Org Domain. Later

3 that day, one of BCS ’s representatives revoked Whiteley’s ownership capabilities.

4 Over the next 48 hours, BCS’s representatives and I engaged in a back-and-forth

5 action in which BCS would repeatedly revoke Whiteley’s ownership capabilities

6 and I would reinstate the ownership capabilities.

7 10. On March 12th, 2021, I also learned through my domain registrar –
8 Hover/Tuscows – that Jesse Jensen, a representative of BCS, had attempted to

9 access my personal Hover account that I have maintained since 2016 to hijack the

10 .Org domain. Shortly thereafter, I sent BCS a demand letter asking them to migrate

11 their services away from my .Org domain to their .com domain within 10 days.

12 Their response to my demand letter was the filing of this instant action on the 10 th

13 day – the final day they were to migrate their domain services to their domain.

14 11. I have since learned that, on March 11, 2022, BCS allegedly discovered
15 that the .Org Domain was not appearing on Google Search and that allegedly there

16 was a request to temporarily remove the .Org Domain from Google Search. I did not

17 have anything to do with the temporary removal request and I was unaware of these

18 allegations when I added Whiteley to the Google Search Console.

19 I declare under penalty of perjury under the laws of the United States that the
20 foregoing is true and correct.

21 Executed June 30, 2023, at San Gabriel, California
22

23 /s/ Katherin McNamara
KATHERINE MCNAMARA
24

25

26
27

28

4
DECLARATION OF KATHERINE MCNAMARA
Case 2:22-cv-02052-MAA Document 98-25 Filed 07/14/23 Page 5 of 5 Page ID #:3928

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 14th day of July, 2023, I electronically filed the
3 foregoing paper(s) with the Clerk of the Court using the ECF system which will

4 send notification to all parties of record or persons requiring notice.

5

6 /s/ Helene Saller
7 Helene Saller
8

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CERTIFICATE OF SERVICE
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 1 of 14 Page ID #:3698

EXHIBIT 1
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 2 of 14 Page ID #:3699

1 MESSNER REEVES LLP
Kathleen Carter (SBN 157790)
2 Jennifer Berneking (SBN167172)
650 Town Center Drive, Suite 700
3 Costa Mesa, California 92626
Telephone: (949) 612-9128
4 Facsimile: (949) 438-2304
Email: kcarter@messner.com
5 jberneking@messner.com

6 Attorneys for Defendants BREAKING CODE
SILENCE, a CA 501(c)(3) nonprofit corp. and
7 JENNIFER REBECCA MAGILL, an
individual
8

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF LOS ANGELES

11 KATHERINE MCNAMARA, an individual; Case No. 22STCV14977
and JEREMY WHITELEY an individual,
12 ASSIGNED FOR ALL PURPOSES TO:
Plaintiffs, Hon. Kristin Escalante
13 Dept.: 24
vs.
14
BREAKING CODE SILENCE, a California BREAKING CODE SILENCE’S
15 501 (c) (3) nonprofit corporation; VANESSA FURTHER SUPPLEMENTAL
HUGHES, an individual; JENNIFER RESPONSES TO JEREMY WHITELEY’S
16 REBECCA MAGILL, an individual; and SPECIAL INTERROGATORIES, SET
DOES 1 through 20, inclusive, ONE
17
Defendants.
18 Action Filed: April 5, 2022
Trial Date: November 13, 2023
19

20
PROPOUNDING PARTY: JEREMY WHITELEY
21
RESPONDING PARTIES: BREAKING CODE SILENCE
22
SET NUMBER: ONE (1)
23
TO PLAINTIFF JEREMY WHITELEY AND TO HIS ATTORNEYS OF RECORD
24
HEREIN:
25 {06953120 / 1} 1
BREAKING CODE SILENCE’S FURTHER SUPPLEMENTAL RESPONSES TO JEREMY WHITELEY’S
SPECIAL INTERROGATORIES, SET ONE

13
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 3 of 14 Page ID #:3700

1 DEFENDANT, BREAKING CODE SILENCE, supplements its answers, objects and

2 responds to the interrogatories propounded by PLAINTIFF JEREMY WHITELEY as follows:

3 PRELIMINARY STATEMENT

4 These further supplemental responses are made solely for the purpose of and in relation to

5 this action. Each answer is given subject to all appropriate objections (including, but not limited to,

6 objections concerning competency, relevancy, materiality, propriety, admissibility, and attorney-

7 client privilege and attorney work product), which would require the exclusion of any statement

8 contained herein if the interrogatory were asked of, or any statement contained herein were made

9 by, a witness present and testifying in court. All such objections and grounds are therefore reserved

10 and may be interposed at the time of trial.

11 The party on whose behalf these supplemental answers are given has not yet completed

12 investigation of the facts relating to this action and has not yet completed preparation for trial.

13 Consequently, the following answers are given without prejudice to the answering party’s right to

14 produce at the time of trial subsequently discovered evidence relating to the proof of facts

15 subsequently discovered to be material.

16 The party on whose behalf these supplemental answers are prepared has used its best efforts

17 to gather information responsive to each interrogatory. However, the following answers are given

18 without prejudice to the answering party’s right to produce, at the time of trial, materials and/or

19 information inadvertently excluded from any answer contained herein.

20 Except for the facts explicitly admitted herein, no admission of any nature whatsoever is to

21 be implied or inferred. The fact that an interrogatory herein has been answered should not be taken

22 as an admission or a concession of the existence of any facts set forth or assumed by such

23 interrogatory, or that such answer constitutes evidence of any fact set forth or assumed. All answers

24 must be construed as given on the basis of present recollection.

25 {06953120 / 1} 2
BREAKING CODE SILENCE’S FURTHER SUPPLEMENTAL RESPONSES TO JEREMY WHITELEY’S
SPECIAL INTERROGATORIES, SET ONE

14
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 4 of 14 Page ID #:3701

1 This preliminary statement is incorporated into each of the supplemental responses set forth

2 below.

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SPECIAL INTERROGATORIES, SET ONE

15
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 5 of 14 Page ID #:3702

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20 SPECIAL INTERROGATORY NO. 19:

21 IDENTIFY all members of YOUR Board of Directors from March 2021 to the present.

22 RESPONSE TO SPECIAL INTERROGATORY NO.19:

23 Objection. Responding Party objects to this interrogatory on the grounds that the term,

24 “Board of Directors” is vague and ambiguous and overbroad as to time period and subject matter.

25 {06953120 / 1} 9
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SPECIAL INTERROGATORIES, SET ONE

21
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 6 of 14 Page ID #:3703

1 Responding Party further objects to this interrogatory as seeking information protected from

2 disclosure by the attorney-client privilege, the attorney work product doctrine and/or seeks

3 information prepared in anticipation of litigation. (See, e.g., Coito v. Superior Court (2012) 54

4 Cal.4th 480; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 216-217).

5 Responding Party further objects to this request as information which would violate the privacy

6 rights of Defendants and third parties under the California and U.S. Constitutions.

7 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 19:

8 Responding Party incorporates its previous response herein and supplements its response

9 as follows:

10 As of September 4, 2022, the BCS Board includes Jennifer Magill; Dr. Vanessa Hughes;

11 Dr. Apryl Alexander; Lenore Silverman; Dr. Denette Boyd-King; Dr. Dorit Saberi;, and Dee Anna

12 Hassanpour who may be contacted through Responding Party’s attorneys of record.

13 FURTHER SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 19:

14 THE FOLLOWING RESPONSE TO THIS INTERROGATORY IS DESIGNATED

15 AS “CONFIDENTIAL” SUBJECT TO THE TERMS OF THE STIPULATED

16 PROTECTIVE ORDER:

17 Responding Party incorporates its previous response herein and further responds as follows:

18 March 2021 – Present: Vanessa Hughes, Jennifer Magill; March 2021 – June 2021: Jeremy

19 Whiteley; March 2021 – December 2021: Katherine McNamara; and April 2021 – December 2021:

20 William Boyles, all of whom may be contacted through Responding Party’s attorneys of record.

21 Remaining board members are included in the answer to Special Interrogatory No. 20.

22

23

24

25 {06953120 / 1} 10
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22
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 7 of 14 Page ID #:3704

1 SPECIAL INTERROGATORY NO. 20:

2 For each member of YOUR Board of Directors that served between March 2021 and the

3 present, state the dates during which the person served as a member of BCS’s Board of Directors.

4 RESPONSE TO SPECIAL INTERROGATORY NO. 20:

5 Objection. Responding Party objects to this interrogatory on the grounds that the term,

6 “Board of Directors” is vague and ambiguous and overbroad as to time period and subject matter.

7 Responding Party further objects to this interrogatory as seeking information protected from

8 disclosure by the attorney-client privilege, the attorney work product doctrine and/or seeks

9 information prepared in anticipation of litigation. (See, e.g., Coito v. Superior Court (2012) 54

10 Cal.4th 480; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 216-217).

11 Responding Party further objects to this request as information which would violate the privacy

12 rights of Defendants and third parties under the California and U.S. Constitutions.

13 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 20:

14 Responding Party incorporates its previous response herein and supplements its response

15 as follows:

16 Jennifer Magill, March 22, 2021, to present; Vanessa Hughes, March 22, 2021 to present; Dr.

17 Apryl Alexander 6/13/2022 to present; Lenore Silverman, 1/18/2022 to present; Dr. Denette Boyd-

18 King 8/15/2022 to present; Dr. Dorit Saberi, 6/18/2022 to present; and Dee Anna Hassanpour,

19 6/15/2022 to present.

20 FURTHER SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 20:

21 THE FOLLOWING RESPONSE TO THIS INTERROGATORY IS DESIGNATED

22 AS “CONFIDENTIAL” SUBJECT TO THE TERMS OF THE STIPULATED

23 PROTECTIVE ORDER:

24 Responding Party incorporates its previous response herein and further responds as

25 {06953120 / 1} 11
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SPECIAL INTERROGATORIES, SET ONE

23
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 8 of 14 Page ID #:3705

1 follows:

2 Jennifer Magill, March 22, 2021, to present; Vanessa Hughes, March 22, 2021 to present; Dr.

3 Apryl Alexander 6/13/2022 to present; Lenore Silverman, 1/18/2022 to present; Dr. Denette Boyd-

4 King 8/15/2022 to present; Dr. Dorit Saberi, 6/18/2022 to present; and Dee Anna Hassanpour,

5 6/15/2022 to present, all of whom may be reached through Responding Party’s attorneys of record.

6 SPECIAL INTERROGATORY NO. 21:

7 IDENTIFY all BCS corporate officers from March 2021 to the present.

8 RESPONSE TO SPECIAL INTERROGATORY NO. 21:

9 Objection. Responding Party objects to this interrogatory on the grounds that the term,

10 “corporate officers” is vague and ambiguous and overbroad as to time period and subject matter.

11 Responding Party further objects to this interrogatory as seeking information protected from

12 disclosure by the attorney-client privilege, the attorney work product doctrine and/or seeks

13 information prepared in anticipation of litigation. (See, e.g., Coito v. Superior Court (2012) 54

14 Cal.4th 480; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 216-217).

15 Responding Party further objects to this request as information which would violate the privacy

16 rights of Defendants and third parties under the California and U.S. Constitutions.

17 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 21:

18 Responding Party incorporates its previous response herein and supplements its response

19 as follows:

20 Corporate titles were not used until 2022. The leadership team as of September 10, 2022, is

21 as follows: CEO: Jenny Magill; COO: Bobby Cook; Chief Administrative Officer: Arianna

22 Conroyd; Chief Communications Officer: Noelle Beauregard; Chief Information Security Officer:

23 Jesse Jensen; Chief Procedural Officer: Megan Hurwitt; Chief Data Officer: Abby Bleich; Director

24 of Academic Research: Dr. Athena Kolbe; Director of Human Resources: Bria Karnedy; and Senior

25 {06953120 / 1} 12
BREAKING CODE SILENCE’S FURTHER SUPPLEMENTAL RESPONSES TO JEREMY WHITELEY’S
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24
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 9 of 14 Page ID #:3706

1 Administrative Director: Tracy Baker.

2 FURTHER SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 21:

3 THE FOLLOWING RESPONSE TO THIS INTERROGATORY IS DESIGNATED

4 AS “CONFIDENTIAL” SUBJECT TO THE TERMS OF THE STIPULATED

5 PROTECTIVE ORDER:

6 Responding Party incorporates its previous response herein and further responds as

7 follows:

8 Corporate titles were not used until 2022. The leadership team as of December 9, 2022, is

9 as follows (dates of service noted): CEO: Jenny Magill; January 2022 to present; COO: Bobby

10 Cook; January 2022 to present; Chief Administrative Officer: Arianna Conroyd; March 2022 to

11 present; Chief Communications Officer: Noelle Beauregard; August 2022 to present; Chief

12 Information Security Officer: Jesse Jensen; June 2022 to present; Chief Procedural Officer: Megan

13 Hurwitt; March 2022 to present; Chief Data Officer: Abby Bleich; October 2022 to present; Director

14 of Academic Research: Dr. Athena Kolbe; March 2021 to present; Director of Human Resources:

15 Bria Karnedy; January 2022 to present; and Director of Development: Tracy Baker; November 2022

16 to present. All of whom may be reached through Responding Party’s attorneys of record.

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Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 10 of 14 Page ID #:3707

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12 DATED: December 12, 2022 MESSNER REEVES LLP

13

14 Jennifer Berneking
Kathleen Carter
15 Jennifer Berneking
Attorneys for Defendants BREAKING CODE
16 SILENCE, a CA 501(c)(3) nonprofit corp. and
JENNIFER REBECCA MAGILL, an
17 individual
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25 {06953120 / 1} 15
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27
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 11 of 14 Page ID #:3708

1 VERIFICATION
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
2
I have read the foregoing BREAKING CODE SILENCE’S FURTHER
3 SUPPLEMENTAL RESPONSES TO JEREMY WHITELEY’S SPECIAL
INTERROGATORIES, SET ONE and know its contents.
4
(✓) CHECK APPLICABLE PARAGRAPH
5
 I am a party to this action. The matters stated in the foregoing document are true of my own
6
knowledge except as to those matters which are stated on information and belief, and to
those matters I believe them to be true.
7
X I am a representative of Breaking Code Silence, a party to this action, and am authorized to
8 make this verification for and on its behalf, and I make this verification for that reason.
9 X I am informed and believe and on that ground allege that the matters stated in the
foregoing document are true.
10
 The matters stated in the foregoing document are true of my own knowledge except
11 as to those matters which are stated on information and belief, and as to those matters
I believe them to be true.
12
 I am one of the attorneys for, a party to this action. Such party is absent from the county
13 where such attorneys have their offices, and I make this verification for and on behalf of that
party for that reason. I am informed and believe and on that ground allege that the matters
14 stated in the foregoing document are true.

15 Executed on _December 9, 2022, at _Centennial, Colorado_.

16 I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
17

18
Jennifer Magill
19
Type or Print Name Signature
20

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23

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25 {06953120 / 1} 17
BREAKING CODE SILENCE’S FURTHER SUPPLEMENTAL RESPONSES TO JEREMY WHITELEY’S
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47
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 12 of 14 Page ID #:3709

1 CASE NAME: KATHERINE MCNAMARA et al. v. BREAKING CODE SILENCE et
al.
2
ACTION NO.: 22STCV14977
3
PROOF OF SERVICE
4 METHOD OF SERVICE
5  First Class Mail  Facsimile  Messenger Service

6  Overnight Delivery  E-Mail/Electronic Delivery

7 1. At the time of service, I was over 18 years of age and not a party to this action.

2. My business address is 650 Town Center Drive, Suite 700, Costa Mesa, CA 92626, County of
8 Orange County.

9 3. On December 16 , 2022, I served the following documents:

10 BREAKING CODE SILENCE’S FURTHER SUPPLEMENTAL RESPONSES TO
JEREMY WHITELEY’S SPECIAL INTERROGATORIES, SET ONE
11
4. I served the documents on the persons at the address below (along with their fax numbers
12 and/or email addresses if service was by fax or email):
13 PLEASE SEE ATTACHED SERVICE LIST

14 5. I served the documents by the following means:

a.  By United States mail: I enclosed the documents in a sealed envelope or package
15 addressed to the persons at the addresses specified in item 4 and placed the envelope for collection
and mailing, following our ordinary business practices. I am readily familiar with this business’s
16 practice for collecting and processing correspondence for mailing. On the same day that
correspondence is placed for collection and mailing, it is deposited in the ordinary course of business
17 with the United States Postal Service, in a sealed envelope with postage fully prepaid at the address
listed in Paragraph 2 above.
18
b.  By overnight delivery: I enclosed the documents in an envelope or package provided
by an overnight delivery carrier and addressed to the persons at the addresses in item 4. I placed the
19 envelope or package for collection and overnight delivery at an office or a regularly utilized drop
box of the overnight delivery carrier.
20
c.  By messenger: I served the documents by placing them in an envelope or package
21 addressed to the persons at the addresses listed in item 4 and providing them to a messenger for
service.
22 d.  By fax transmission: Based on an agreement between the parties and in conformance
with Rule 2.306, and/or as a courtesy, I faxed the documents to the persons at the fax numbers listed
23 in item 4. No error was reported by the fax machine that I used. A copy of the record of the fax
transmission is attached.
24

25 {06953120 / 1} 18
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48
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 13 of 14 Page ID #:3710

1 e.  By email or electronic transmission: I sent the documents via my electronic
service address (abrimhall@messner.com) to the persons at the email addresses listed in item 4.
2 I did not receive, within a reasonable time after the transmission, any electronic message or other
indication that the transmission was unsuccessful.
3 I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.
4
Date: December 16 , 2022
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49
Case 2:22-cv-02052-MAA Document 98-2 Filed 07/14/23 Page 14 of 14 Page ID #:3711

1 SERVICE LIST

2

3 Dirk O. Julander
Catherine A. Close
4 M. Adam Tate
Helene P. Saller
5 JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
6 Irvine, CA 92610
Telephone: (949) 477-2100
7 Facsimile: (949) 477-6355
Email: doj@jbblaw.com
8 cac@jbblaw.com
adam@jbblaw.com
9 helene@jbblaw.com

10 Attorneys for Plaintiffs, KATHERINE MCNAMARA and JEREMY WHITELEY

11
Richard R. Clouse, Esq.
12 Lawya L. Rangel, Esq.
Rachel Martinez
13 CLOUSEPANIA ATTORNEYS
8038 Haven Avenue, Suite E.
14 Rancho Cucamonga, CA 91730
Tel: 909-941-3388
15 Fax: 909-941-3389
Email: rrclouse@csattys.com
16 llrangel@csattys.com
rmartinez@csattys.com
17

18 Co-Defendant for Defendant, VANESSA HUGHES

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25 {06953120 / 1} 20
BREAKING CODE SILENCE’S FURTHER SUPPLEMENTAL RESPONSES TO JEREMY WHITELEY’S
SPECIAL INTERROGATORIES, SET ONE

50
Case 2:22-cv-02052-MAA Document 98-3 Filed 07/14/23 Page 1 of 6 Page ID #:3712

EXHIBIT 2
Case 2:22-cv-02052-MAA Document 98-3 Filed 07/14/23 Page 2 of 6 Page ID #:3713

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a )
California 501(c)(3) nonprofit, )
)
Plaintiff, )
)
VS. ) Case No. 2:22-cv-002052
) SB-MAA
KATHERINE MCNAMARA, an individual; )
JEREMY WHITELEY, an individual; )
and DOES 1 THROUGH 50, inclusive, )
)
Defendants. )
___________________________________)

VIDEOTAPED VIDEOCONFERENCE DEPOSITION OF BOBBY COOK

Date and Time: Friday, March 31, 2023
9:01 a.m. – 12:46 p.m.

Location: Remotely
(Via Videoconference)

Reported By: Therese K. Claussen, RMR, CRR
CSR No. 6552

Job No. 26328A

1

51
Case 2:22-cv-02052-MAA Document 98-3 Filed 07/14/23 Page 3 of 6 Page ID #:3714

1 collected in discovery?

10:41 2 MR. BROWN: Objection, calls for speculation, lacks

3 personal knowledge and, again, potentially falls into

4 attorney-client areas as well.

10:41 5 THE WITNESS: I am not aware of anyone’s personal

6 emails being collected.

10:41 7 Q. (BY MR. TATE) Did anyone ever ask you to go

8 through personal — your personal email to look for

9 responsive documents?

10:41 10 MR. BROWN: Same objections as earlier.

10:41 11 THE WITNESS: No. No one approached me about that.

10:41 12 Q. (BY MR. TATE) Did you in fact go through

13 your personal email to look for responsive documents?

10:42 14 A. I did not.

10:42 15 Q. Okay. Was your — were any of your personal

16 devices; your phone, your laptop, your P.C., were any of

17 those collected in connection with discovery?

10:42 18 MR. BROWN: Objection, vague and ambiguous. But

19 also this is again attorney-client privilege potentially

20 area here.

10:42 21 MR. TATE: I’m just asking if they were collected.

10:42 22 MR. BROWN: Understood.

10:42 23 THE WITNESS: They were not collected.

10:42 24 Q. (BY MR. TATE) Did you ever go through your

25 phone, laptop or computer to look for responsive documents?

73

ELITE COURT REPORTING (949) 829-9222

52
Case 2:22-cv-02052-MAA Document 98-3 Filed 07/14/23 Page 4 of 6 Page ID #:3715

10:42 1 MR. BROWN: Objection, vague and ambiguous.

10:42 2 THE WITNESS: I was asked to at one point but I

3 actually did not produce anything. It was an hectic time

4 period I was asked to look for things for discovery to

5 answer some potential things and this was done by Miss

6 Magill and I was not the one who actually did that. I

7 never — I think the only times I ever did was during —

8 during the initial stages, she would ask me to grab screen

9 shots of things for her and send them over to her.

10:43 10 Q. (BY MR. TATE) What screen shots were you

11 asked to grab?

10:43 12 A. They were of — I want to say at that point

13 they were of conversations posted on social media about a

14 Zotero account and just mention of Breaking Code Silence and

15 like social media groups.

10:43 16 Q. (BY MR. TATE) Were you ever instructed to

17 share documents relating to this lawsuit to a Dropbox?

10:43 18 MR. BROWN: Objection, assumes facts.

10:43 19 THE WITNESS: I was but I never did.

10:43 20 Q. (BY MR. TATE) And were you told why you

21 should be sending those documents to the Dropbox?

10:43 22 MR. BROWN: Objection, calls for speculation.

10:43 23 THE WITNESS: That they were all potentially things

24 that could be used as evidence in the lawsuit.

10:44 25 Q. (BY MR. TATE) And was it your understanding

74

ELITE COURT REPORTING (949) 829-9222

53
Case 2:22-cv-02052-MAA Document 98-3 Filed 07/14/23 Page 5 of 6 Page ID #:3716

12:10 1 Q. (BY MR. TATE) Did you have a discussion

2 about collecting information from you?

12:10 3 MR. BROWN: Same objection.

12:10 4 THE WITNESS: Did not.

12:10 5 Q. (BY MR. TATE) So you had no discussions

6 about whether it was necessary for BCS to be able to get

7 access to your computers or your phone or anything like

8 that?

12:10 9 MR. BROWN: Same objection.

12:10 10 THE WITNESS: No. There was no conversation.

12:10 11 Q. (BY MR. TATE) And if I remember correctly,

12 you previously testified that nobody did in fact collect

13 your phone or computers to recover responsive documents?

12:10 14 MR. BROWN: Same objection.

12:10 15 THE WITNESS: Correct.

12:10 16 Q. (BY MR. TATE) Based on what you have

17 observed, is Jenny Magill harboring any animosity towards my

18 client?

12:10 19 MR. BROWN: Objection, vague and ambiguous, calls

20 for speculation, lacks personal knowledge.

12:11 21 THE WITNESS: Yes. I — just from previous phone

22 calls and emails, specifically I know there was one email

23 relating to the 990 forms that said, “Fuck Katie, fuck Emily

24 Carter, fuck the 990’s,” there were emails that were sent

25 over to my personal email address, that stated in reference

129

ELITE COURT REPORTING (949) 829-9222

54
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12:46 1 R E P O R T E R ‘ S

12:46 2 C E R T I F I C A T E

12:46 3

12:46 4 I, Therese K. Claussen, CSR No. 6552, Certified

12:46 5 Shorthand Reporter, certify:

12:46 6 That the foregoing proceedings were taken before me

7 at the time and place therein set forth, at which time the

8 witness was put under oath by me;

12:46 9 That the testimony of the witness, the questions

10 propounded, and all objections and statements made at the

11 time of the examination were recorded stenographically by me

12 at the time and were thereafter transcribed;

12:46 13 That the foregoing is a true and correct transcript

14 of my shorthand notes so taken.

12:46 15 I further certify that I am not a relative or

16 employee of any attorney of the parties, nor financially

17 interested in the action.

12:46 18 I declare under penalty of perjury under the laws of

19 California that the foregoing is true and correct.

12:46 20 Dated this 5th day of April, 2023.

12:46 21

12:46 23

Therese K. Claussen

12:46 24 Certified Shorthand Reporter

California CSR#6552

12:46 25

158

ELITE COURT REPORTING (949) 829-9222

55
Case 2:22-cv-02052-MAA Document 98-4 Filed 07/14/23 Page 1 of 17 Page ID #:3718

EXHIBIT 3
Case 2:22-cv-02052-MAA Document 98-4 Filed 07/14/23 Page 2 of 17 Page ID #:3719

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a )
California 501(c)(3) nonprofit, )
)
Plaintiff, )
)
VS. ) Case No. 2:22-cv-002052
) SB-MAA
KATHERINE MCNAMARA, an individual; )
JEREMY WHITELEY, an individual; )
and DOES 1 THROUGH 50, inclusive, )
)
Defendants. )
___________________________________)

VIDEOTAPED VIDEOCONFERENCE DEPOSITION OF NOELLE BEAUREGARD

Date and Time: Friday, March 31, 2023
1:19 p.m. – 4:22 p.m.

Location: Remotely
(Via Videoconference)

Reported By: Therese K. Claussen, RMR, CRR,
CSR No. 6552

Job No. 26328B

1

56
Case 2:22-cv-02052-MAA Document 98-4 Filed 07/14/23 Page 3 of 17 Page ID #:3720

1:28 1 Q. Were your titles — were you an officer of

2 BCS for either one of your positions?

1:29 3 A. Just the chief communications officer.

1:29 4 Q. Were you ever a member of BCS’s Board of

5 Directors?

1:29 6 A. No, never.

1:29 7 Q. When did your affiliation with BCS end?

1:29 8 A. Just a few weeks ago in early March this

9 year.

1:29 10 Q. I’ll represent that your husband told me that

11 he resigned on March 4th.

1:29 12 Did you resign the same day?

1:29 13 A. It wasn’t the same day. It might have been

14 the week before. So maybe it was late February.

1:29 15 Q. Why did you resign from BCS?

1:29 16 A. I chose to resign because the final thing

17 that kind of put me over the edge, in addition to my, you

18 know, responsibilities, is work and taking care of my kids.

1:30 19 The final thing to me is when we found out

20 that we were not — that they said we weren’t in compliance

21 with the State of California as a nonprofit and I felt like

22 there had been some other things that came to the front

23 before then and I just didn’t want to professionally be

24 involved anymore.

1:30 25 Q. Are you referring to the fact that BCS was

13

ELITE COURT REPORTING (949) 829-9222

57
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1 showed up in Google. I remember the BCSnetwork.org was up

2 there at the top but I honestly — I honestly can’t say for

3 sure whether it was there or not.

1:42 4 Q. Okay. Did you take a screen shot when you

5 did that?

1:42 6 A. Um, I don’t believe I did.

1:42 7 Q. Okay. So, regardless, you said that you went

8 and looked at something associated with Google and you saw

9 some additional people listed.

1:42 10 What was it that you looked at?

1:42 11 A. Um, I can’t remember the name of it but it’s

12 basically like the website management for Google so that you

13 can crawl the website and make sure things are operating

14 correctly.

1:42 15 Q. Okay. And you looked at that.

1:42 16 Was that on the 10th or was that afterwards?

1:42 17 A. Um, it was between had the 10th and the 12th.

18 I don’t remember exactly which day.

1:43 19 Q. Okay. And then when you looked at that, did

20 you see a whole list of people who had access to the domain?

1:43 21 A. I saw their email addresses.

1:43 22 Q. And did you recognize any of those email

23 addresses?

1:43 24 A. I recognized Megan Hurwitt. She had been put

25 in to help manage the Google analytics, but then I didn’t

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1 recognize the others listed.

1:43 2 Q. So how many names did you see or email

3 addresses?

1:43 4 A. I believe I saw three when I first looked in.

1:43 5 Q. Okay. Were those — one of those three was

6 Megan Hurwitt; correct?

1:43 7 A. Yes.

1:43 8 Q. What were the other two email addresses that

9 you saw?

1:43 10 A. Um, I believe one they told me belonged to

11 Jeremy and then the other was iristheangel, I think it was,

12 and they told me that it belonged to Katherine.

1:44 13 Q. Do you recall which email supposedly belonged

14 to Jeremy that you saw?

1:44 15 A. I don’t, unfortunately.

1:44 16 Q. You don’t recall whether this was on the

17 10th, 11th or 12th; right?

1:44 18 A. Correct.

1:44 19 Q. Were you able to tell when these two email

20 addresses were added to the document — the screen that you

21 were looking at?

1:44 22 A. Yes. All of that was logged in the Google.

1:44 23 Q. When did the iristheangel.com address get

24 added?

1:44 25 A. I honestly don’t remember.

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1:50 1 web site?

1:50 2 MR. BROWN: Objection, calls for speculation.

1:50 3 THE WITNESS: When I brought it up to the team, that

4 did not seem like it was a likely cause of the de-indexing.

1:50 5 Q. (BY MR. TATE) And why is that?

1:50 6 A. Megan was present with us when we were

7 discussing it and she verbalized that she had no involvement

8 and that she had only touched analytics from the WordPress

9 side, I believe.

1:50 10 Q. Did she tell you the last time that she had

11 touched those analytics?

1:51 12 A. Not that I’m aware of.

1:51 13 Q. Do you know whether she was touching those

14 analytics at or about the time the website was allegedly

15 de-indexed?

1:51 16 MR. BROWN: Objection, asked and answered.

1:51 17 THE WITNESS: I believe it was before.

1:51 18 Q. (BY MR. TATE) Sorry, I had all of these

19 follow-up questions because it’s interesting to me.

1:51 20 Go ahead. Go back to telling me what your

21 investigation into this issue entailed?

1:51 22 I think you testified that you looked and you

23 saw some authorized users and then you looked at a different

24 page and it showed you that there were some requests to

25 de-index.

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1:51 1 Did your investigation entail anything else?

1:51 2 A. Um, no. That was the depth of my

3 investigation into it.

1:51 4 Q. At some point was the website re-indexed?

1:52 5 A. It was. We were — I believe it was Jesse

6 Jensen, he was able to cancel the de-indexing request and

7 allowed the website to be re-indexed.

1:52 8 Q. Do you know how he did it if he didn’t have

9 administrative access?

1:52 10 MR. BROWN: Objection, calls for speculation.

1:52 11 THE WITNESS: I do not know.

1:52 12 Q. (BY MR. TATE) Do you know if he was given

13 administrative access?

1:52 14 A. So, yes, I’m sorry. I did give him

15 administrative access around the time so he could see all of

16 this as well.

1:52 17 Q. Did you have administrative access at the

18 time that the website was de-indexed?

1:52 19 A. Yes. So after I had found the Google back

20 end, I was able to give myself access through the WordPress

21 website and that’s when I was able to see a lot of this,

22 just to be able to see that the de-indexing request had been

23 put in.

1:53 24 Q. Walk me through that process.

1:53 25 How were you able to give yourself

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2:05 1 Q. (BY MR. TATE) Do you know one way or another

2 if BCS collected the personal email of Dr. Hughes?

2:05 3 MR. BROWN: Same objection.

2:05 4 THE WITNESS: I’m not aware.

2:05 5 Q. (BY MR. TATE) Did you ever go through your

6 own computer or cell phones to look for responsive documents

7 in this action?

2:05 8 A. Um, I’m sorry, can you clarify?

2:05 9 Q. Sure. Let’s take it one at a time.

2:05 10 At any point did you go through your cell

11 phone look for text messages or other communications that

12 relate to this lawsuit?

2:05 13 A. No.

2:05 14 Q. Did you give your phone to somebody else to

15 do that type of analysis?

2:05 16 A. No.

2:06 17 Q. Do you use a laptop to do your business for

18 BCS becomes?

2:06 19 A. A desktop

2:06 20 Q. A desktop. Okay

2:06 21 At some point did you look through your

22 desktop to try to find responsive documents for this

23 lawsuit?

2:06 24 A. The only thing I did is take screen shots of

25 the — the alleged hacking and I sent those to Jenny.

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2:06 1 Q. Why did you send them to Jenny?

2:06 2 MR. BROWN: Objection, calls for speculation.

2:06 3 THE WITNESS: She asked me to.

2:06 4 Q. (BY MR. TATE) Other than sending those

5 screen shots, did you make an effort to look through your

6 computer for anything else that might be responsive to this

7 lawsuit?

2:06 8 A. No.

2:06 9 Q. Did you give access to anybody else to be

10 able to look through your computer for responsive documents?

2:06 11 A. No.

2:06 12 Q. Were you ever asked to go through your own —

13 your BCS email to look for responsive documents?

2:07 14 A. No. I just — I’m trying to remember, I

15 think the only — the only thing that I have received

16 through email in relation to the lawsuit is a communication

17 that was forwarded from either Jenny or Vanessa from Tamany,

18 I think that was just basically saying don’t delete

19 anything —

2:07 20 MR. BROWN: Yeah, so this is one of the areas where

21 we’re going to have attorney-client privilege because Tamany

22 is a colleague of mine at DLA, who is counsel for — counsel

23 for Plaintiff, which is Breaking Code Silence, the entity.

2:07 24 And, again, this is something that Adam and I

25 went through earlier, is that to the extent that although

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1 you were not talking to Tamany, something was internal to

2 BCS that Tamany sent or I sent or one of BCS’s other lawyers

3 sent that was then forwarded on to you while you were still

4 at BCS, that still retains its privilege.

2:08 5 Q. (BY MR. TATE) Yeah, I just — I don’t want

6 you to say, “Tamany told Jenny this and Jenny forwarded –”

7 that’s what we’re trying to get. Other than that,

8 communications are —

2:08 9 A. Okay.

2:08 10 Q. Were you ever instructed to send documents to

11 a Dropbox or someone other than Counsel?

2:08 12 A. No.

2:08 13 Q. Were you aware of anybody putting documents

14 in a Dropbox so that they wouldn’t be produced in this

15 action?

2:08 16 A. No.

2:08 17 Q. Would your computer have documents related to

18 this cyber hacking on it?

2:08 19 A. No.

2:08 20 Q. The screen shots, do you still have them?

2:08 21 A. I do not. I sent them to Jenny.

2:08 22 Q. And then did you delete them off your

23 computer?

2:08 24 A. I believe I did. Yeah, and they are also in

25 the Slack. They should still be in the Slack.

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1 writing a summary — or — I honestly can’t remember.

2:12 2 Q. How did you take the screen shots?

2:12 3 A. Just on my computer. And it is possible I

4 took some on my phone. And then I produced all of those to

5 them through Slack.

2:12 6 Q. I’m sorry to get down to the weeds of

7 technical stuff but it is a technical case here.

2:12 8 When said prepared, were you saying the

9 snippet tool?

2:12 10 What was the actual method of capturing the

11 screen shot?

2:12 12 A. Yes, sorry, it was either through the snippet

13 or I think there is like a key hack — like a keyboard way

14 to do it, like a keyboard shortcut to do it.

2:13 15 Q. The control print function, is that what you

16 are referring to?

2:13 17 A. Yes. Yes.

2:13 18 Q. So you didn’t, for instance, you didn’t save

19 them as NTH files or anything like that?

2:13 20 A. No.

2:13 21 Q. The screen shots that you took, did it

22 capture the time and date?

2:13 23 A. Um, I honestly don’t remember.

2:13 24 Q. Okay. Were they dot PNG’s, if you recall the

25 file format?

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2:13 1 A. I believe so.

2:13 2 Q. How many screen shots are we talking about?

2:13 3 A. I would say 25 or less.

2:13 4 Q. And then these were all — you emailed all of

5 these to Jenny Magill; correct?

2:13 6 A. I believe I sent them to her in Slack.

2:13 7 Q. In Slack. Okay.

2:14 8 Did you also send them to Jesse Jensen?

2:14 9 A. Um, I believe I did and I can’t remember if

10 it was like a group in Slack where I sent them to both of

11 them at the same time or individually. But, yes, he did get

12 them too.

2:14 13 Q. Did Jesse Jensen do an investigation

14 independent of you or were the two of you working together

15 to investigate this?

2:14 16 MR. BROWN: Objection, vague and ambiguous and calls

17 for speculation.

2:14 18 THE WITNESS: Um, if I remember right, he also kind

19 of helped remove them from the ownership list or whatever.

20 But — and also he helped, um, with the re-indexing of the

21 website and it’s possible he also looked at some other back

22 end coding things. That’s outside of my scope to be able to

23 tell what was happening. So I’m not completely sure.

2:15 24 Q. Okay. In your investigation, what — you’ve

25 already described you looked at two different screens

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1 have marked as Exhibit 23. These first of six screen shots

2 we’ll look at today

2:36 3 Let me know when you’ve got them open.

2:36 4

2:36 5 (Defense Exhibit 23 marked

2:36 6 for identification.)

2:36 7

2:36 8 A. Okay, I see it.

2:36 9 Q. Okay.

2:36 10 This screen shot, as you see on the bottom

11 right-hand corner it says 3-1-22 at 10:38 p.m.

2:37 12 Did you take this screen shot?

2:37 13 A. Yes, I did.

2:37 14 Q. Okay. Did you take it about 10:38 p.m. on

15 March 11, 2022?

2:37 16 A. Yes, I did.

2:37 17 Q. Is that mountain standard time?

2:37 18 A. Yes, it is.

2:37 19 Q. Okay. What is it — why did you take this

20 screen shot?

2:37 21 A. Um, I took this showing that there was

22 several requests to remove the URL from indexing on Google.

2:37 23 Q. So, if I’m reading this correctly, you tell

24 me if you have a different understanding, that there were

25 two requests made on the 8th but neither one of those

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1 requests actually went through; is that your understanding?

2:38 2 A. Yes, or someone cancelled them before they

3 went through.

2:38 4 Q. Can you tell from this document who made any

5 one of the three requests?

2:38 6 A. No, I cannot.

2:38 7 Q. Did you ever see a document that would have

8 told you who had administrative access on March 8th or March

9 9th?

2:38 10 A. Just the logs, there should be a separate

11 ones showing, like, the different times and dates people

12 were added or removed.

2:38 13 Q. Let’s see if we can’t get there. But at

14 least you took this and your understanding is, according to

15 this document, a successful request to de-index was made on

16 March 9th; correct?

2:38 17 A. Yes.

2:39 18 Q. Let me show you the next document in order.

19 We’ll mark it as Exhibit No. 24.

2:39 20

2:39 21 (Defense Exhibit 24 marked

2:39 22 for identification.)

2:39 23

2:39 24 A. Okay. I see it.

2:39 25 Q. This screen shot is also dated March 11th,

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1 itself.

2:50 2 THE WITNESS: No, it does not.

2:50 3 Q. (BY MR. TATE) Okay. Let’s go onto another

4 one and then we’ll go back to where we started.

2:51 5 I’m going to show you Exhibit No. 29.

2:51 6

2:51 7 (Defense Exhibit 29 marked

2:51 8 for identification.)

2:51 9

2:51 10 A. Okay.

2:51 11 Q. This appears to be another screen shot taken

12 on the 12th.

2:51 13 You took this one maybe an hour or so before

2:51 14 the last one we looked at.

2:51 15 Did you take this screen shot?

2:51 16 A. Yes, I did.

2:51 17 Q. Why did you take this screen shot?

2:51 18 A. Just to continue logging the delegation,

19 revocation attempt.

2:51 20 Q. Would you agree with me that this screen shot

21 doesn’t show Jeremy delegating ownership to anybody?

2:51 22 MR. BROWN: Objection, calls for speculation,

23 document speaks for itself.

2:51 24 THE WITNESS: That’s correct.

2:51 25 Q. (BY MR. TATE) I’ll represent to you the

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1 screen shots I just showed with you, the only screen shots

2 that I’ve ever seen relating to this issue.

2:51 3 Are there more screen shots?

2:52 4 A. Um, I believe I took up to 25 around that

5 time period, somewhere around there.

2:52 6 Q. Okay. I’m going to put back in the chat so

7 you don’t have to hunt for it, Exhibit No. 23.

2:52 8 A. Okay.

2:52 9 Q. Do you have — so if you look at this, this

10 is where we saw the three de-indexing requests.

2:52 11 A. Yes.

2:52 12 Q. Do you have any screen shots that would show

13 who had administrative access at the times that these

14 de-indexing requests were made?

2:52 15 MR. BROWN: Objection, calls for speculation, lacks

16 personal knowledge.

2:52 17 THE WITNESS: If I remember correctly, I had taken

18 screen shots at the beginning showing what I found when I

19 first got in and saw what the — the Webmaster Central, what

20 it was showing. So there should have been earlier screen

21 shots as well.

2:53 22 Q. (BY MR. TATE) Okay. Is it possible that

23 somebody at Google submitted these requests?

2:53 24 MR. BROWN: Objection, calls for speculation.

2:53 25 THE WITNESS: I mean, I guess it’s always possible

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4:21 1 R E P O R T E R ‘ S

4:21 2 C E R T I F I C A T E

4:21 3

4:21 4 I, Therese K. Claussen, CSR No. 6552, Certified

5 Shorthand Reporter, certify:

4:21 6 That the foregoing proceedings were taken before me

7 at the time and place therein set forth, at which time the

8 witness was put under oath by me;

4:21 9 That the testimony of the witness, the questions

10 propounded, and all objections and statements made at the

11 time of the examination were recorded stenographically by me

12 at the time and were thereafter transcribed;

4:21 13 That the foregoing is a true and correct transcript

14 of my shorthand notes so taken.

4:21 15 I further certify that I am not a relative or

16 employee of any attorney of the parties, nor financially

17 interested in the action.

4:21 18 I declare under penalty of perjury under the laws of

19 California that the foregoing is true and correct.

4:21 20 Dated this 7th day of April, 2023.

4:21 21

4:21 22

4:21 23

Therese K. Claussen

4:21 24 Certified Shorthand Reporter

California CSR#6552

4:21 25

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EXHIBIT 4
Case 2:22-cv-02052-MAA Document 98-5 Filed 07/14/23 Page 2 of 20 Page ID #:3736

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

BREAKING CODE SILENCE, a )
California 501(c)(3) nonprofit, )
)
Plaintiff, )
)
v. ) Case No. 2:22-cv-002052-
) SB-MAA
KATHERINE MCNAMARA, an individual; )
JEREMY WHITELEY, an individual; )
and DOES 1 through 50, inclusive, )
)
Defendants. )
___________________________________)

VIDEOTAPED VIDEOCONFERENCE DEPOSITION OF
THE PERSON MOST QUALIFIED FOR BREAKING CODE SILENCE
JESSE JENSEN

Date and Time: Friday, April 14, 2023
9:03 a.m. – 4:06 p.m.

Location: Remotely
(Via Videoconference)

Reporter: Kimberly Reichert, CSR
Certificate No. 10986
Job No. 26529

1

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09:14:23 1 Q Were you ever asked to use a,
2 quote/unquote, civilian e-mail address to discuss
3 this case?
4 MR. SONG: Objection; I just want to say I
09:14:36 5 think this is the outside the scope.
6 BY MR. TATE:
7 Q Go ahead, Mr. Jensen.
8 A I am unfamiliar with the term “civilian.”
9 Q Sure. My understanding is that Vanessa
09:14:49 10 Hughes asked members of BCS to stop using their BCS
11 e-mail addresses and start using Gmail addresses
12 instead.
13 Were you ever requested to do that?
14 A So I am not aware of Dr. Hughes making
09:15:00 15 that request. I am — rather, I’ll advise you that
16 I am the one who made that recommendation.
17 Q When did you make that recommendation?
18 A Shortly in the aftermath of the attack
19 that is the subject of this litigation.
09:15:15 20 Q So let’s be more specific.
21 BCS is alleging that there was a request
22 for deindexing made on March 9th. Do you know when
23 it was that you made the request that people start
24 using their Gmail accounts?
09:15:32 25 A Most likely the following weekend or

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09:15:35 1 perhaps the following Monday.
2 Q And who did you advise — who did you tell
3 we should start using non-BCS accounts?
4 A The entire leadership team of BCS, so
09:15:48 5 including Jenny Magill and Dr. Hughes.
6 Q Who else is on that leadership team as you
7 understood it?
8 A So at the time we had Captain Megan
9 Hurwitt, we had Ms. Noelle Beauregard, we had
09:16:00 10 Arianna Kamaroyd (phon.), I think Abby Blush was on
11 the team, we had Bobby Cook as well, but forgive me
12 for not being able to produce an exhaustive list of
13 who was on the leadership team off the cuff.
14 Q That’s perfectly fine. In fact, I
09:16:18 15 probably should have told you from time to time I’m
16 going to ask you questions that you’re not going to
17 have a perfect memory. All I’m entitled to is your
18 best recollection. Okay?
19 A Okay.
09:16:28 20 Q And after you told the leadership team to
21 stop using the BCS mail addresses, did those persons
22 comply with your request and start using personal
23 e-mail addresses from that point forward?
24 A In some cases. So the directions I gave
09:16:44 25 were rather specific.

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09:16:46 1 Q What were the specific directions that you
2 gave?
3 A So in the aftermath of the investigation
4 and response, it was clear that our domain was under
09:16:54 5 control of a hostile entity, which meant they could
6 compromise any Breaking Code Silence e-mail account
7 potentially at any time.
8 So the direction that I gave the team was
9 to take certain sensitive communications, not
09:17:08 10 necessarily all communications, but to take them
11 offline to private Gmail accounts that were secured
12 with two-factor authentication and secure passwords.
13 Q In connection with the production of
14 documents, did Consilio or somebody else collect
09:17:27 15 your cell phone data?
16 A No.
17 Q In connection with production of
18 documents, did Consilio or somebody else collect
19 your Facebook data?
09:17:35 20 A No.
21 Q Do you know if Consilio connected —
22 collected the cell phone data of anyone at BCS?
23 A Yes, I think they did.
24 Q Do you know who?
09:17:47 25 A I — I believe they collected Jenny

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09:23:30 1 you know what platform you’re using to create this
2 chat?
3 MR. SONG: Objection; outside of the scope.
4 BY MR. TATE:
09:23:45 5 Q Go ahead.
6 A I’m going to have to briefly review the
7 document in order to answer that correctly.
8 Q Of course. Anytime you need time to
9 review a document, just let me know. Take as much
09:23:55 10 time as you need. I’m not here to try to twist you
11 into any answers.
12 A Okay. It looks to me like it’s from
13 Signal, but the export format is a little strange to
14 my eye. It clearly contains a screenshot from
09:24:39 15 Signal, but this appears to be a back and forth that
16 I vaguely remember between myself and Vanessa
17 Hughes.
18 Q Awesome. So if you look at the second
19 page, you tell — it appears to me that you’re
09:24:54 20 telling Ms. Hughes that you had sent her a text
21 message on Signal. And then you go on further
22 saying that you’re going to send further messages
23 via this subject on Signal.
24 So my question is — I’m not really — I
09:25:08 25 don’t care as much of what, you know, what platform

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09:25:12 1 you used to do this. I’m trying to confirm that
2 from this date, March 14th, going forward, was the
3 primary mode of communication regarding the
4 allegations of this lawsuit on Signal?
09:25:26 5 A So that was the recommendation that I
6 made. Because we are a volunteer organization, in
7 many cases I really have the power to make
8 recommendations rather than to issue orders. So I
9 can’t tell you that absolutely everything went on
09:25:43 10 Signal after that, but to the best of my ability, it
11 did. Certainly everything I was talking about that
12 was in any way sensitive including relating to this
13 matter.
14 Q Can you give me an estimate of how many
09:25:55 15 messages were sent on Signal relating to this
16 lawsuit?
17 A An estimate? Over the course — it —
18 this is a rough estimate, but it’s going to be
19 between — somewhere between probably 50 and a few
09:26:13 20 hundred.
21 Q And just so we’re clear, BCS’s attorneys
22 weren’t on this Signal chat, were they?
23 MR. SONG: Objection; outside of the scope.
24 THE WITNESS: Am I going to proceed?
09:26:31 25 MR. TATE: Yes. So unless Mr. Song says “Don’t

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10:58:05 1 So I ultimately reached out to Google to
2 say hey, what’s going on? I don’t understand what
3 I’m seeing here. I have these people who have
4 access and I can’t remove them.
10:58:17 5 Q And what did Google tell you?
6 A Google told me that it was because
7 Defendant McNamara was using domain TXT records,
8 whereas I had used what’s known as file validation
9 to gain administrative control. But since I
10:58:36 10 couldn’t — getting back to the fact that I didn’t
11 have administrative control, could not change the
12 domain name configuration, that’s where Google was
13 basically saying that they couldn’t give me
14 authority to remove Ms. McNamara because of her TXT
10:58:54 15 record validation.
16 Q Did you ask Google who it was that
17 submitted the temporary removal request?
18 A I don’t think I specifically asked that
19 question. But I don’t recall every — so my focus
10:59:06 20 when I contacted Google was on removing their
21 privileges. It was not on fingering which one of
22 them made the request.
23 Q Well, so why didn’t you ask Google who it
24 was that submitted the request?
10:59:27 25 MR. SONG: Objection; asked and answered.

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10:59:32 1 THE WITNESS: My — my answer is we already
2 knew.
3 BY MR. TATE:
4 Q If you knew, which one of my clients did
10:59:40 5 it?
6 A Well, the one that I can see has access is
7 Mr. Whiteley. But if you’re saying which one, I
8 don’t know which one did it. My understanding is
9 that they were collaborating. It doesn’t matter to
10:59:53 10 me which one.
11 Q And how do you know it was one of them?
12 A Because I know that they’re the only ones
13 who had access to do it until I did the file
14 validation fix.
11:00:02 15 Q How do you know they’re the only ones that
16 had access?
17 A Because I was on a call with the whole
18 Breaking Code Silence team and none of them, myself
19 included, had the authority to remove the deindex
11:00:15 20 request.
21 Q I understand. How do you know that —
22 let’s focus on Mr. Whiteley.
23 How do you know that Mr. Whiteley had
24 access to the Google Search Console on March 9th?
11:00:25 25 A There’s a screenshot that shows the user

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11:47:58 1 in the history they were granted access.
2 Q And you were given access on the 11th;
3 correct?
4 A I think I was given access on the 11th,
11:48:12 5 yeah, I think that’s correct.
6 Q And we see right there that Jeremy was
7 given access on the 11th?
8 A His access was restored.
9 Q All right. When you looked at the Google
11:48:24 10 Search Console, did you see anything that showed
11 definitively that Jeremy Whiteley had access on
12 March 11th — on March 9th, excuse me?
13 A No, he didn’t.
14 Q Let me state that again for a better
11:48:36 15 record.
16 When you looked at the Google console, did
17 you see anything that suggested that Jeremy Whiteley
18 had access on March 9th?
19 A I saw the fact that he had access.
11:48:49 20 Q Okay. And on the 11th you saw that he had
21 access; correct?
22 A Uh-huh.
23 Q Now I’m going to ask — focus on my
24 question.
11:48:57 25 When you logged in at — on March 11th,

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11:49:00 1 did you see anything on the Google console that
2 suggested that Mr. Whiteley had access on March 9th?
3 A No.
4 Q And when you logged in on the Google
11:49:10 5 console March 11th, did you see anything on the
6 Google console that suggested that Ms. McNamara had
7 access on March 9th?
8 A No. So the one log that — that connects
9 anything to Ms. McNamara, much like this log, it
11:49:28 10 doesn’t show the initial point at which they had
11 access. So I can’t tell you that — that it proves
12 that they did or did not have access on March 9th,
13 but I know that they had access predating my
14 invitation to the Google console.
11:49:50 15 Q Maybe I’m misunderstanding what you’re
16 saying.
17 So you’re saying there are other persons
18 besides what we see on this list who had access;
19 correct?
11:49:58 20 A There is one other person.
21 Q And how did you determine that?
22 A So it’s present in a different log. I’m
23 pretty sure — no, it is here. Although that’s not
24 the one that is the most probative, but if you look
11:50:20 25 at the second-to-last line, there’s a reference to

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12:11:31 1 cannot do is give you a comprehensive guarantee that
2 there is no other screenshot that exists anywhere.
3 Q Right. But you as the person most
4 knowledgeable and the person who spearheaded this
12:11:43 5 investigation, you’re not aware of any other
6 screenshots; correct?
7 A I don’t think I am.
8 MR. SONG: Lack of foundation, calls for
9 speculation, argumentative.
12:11:51 10 BY MR. TATE:
11 Q Did you take screenshots in March 2022?
12 A I certainly did.
13 Q Do you know why those haven’t been
14 produced in this action?
12:12:04 15 MR. SONG: Objection; lack of foundation, calls
16 for speculation, argumentative.
17 THE WITNESS: You — you’ve shown screenshots
18 that I captured.
19 BY MR. TATE:
12:12:13 20 Q Well, those screenshots were all captured
21 in March of this year; correct?
22 A Oh, yeah, so that’s when we’re talking
23 about, whether it was with Consilio or whether they
24 include things that I submitted to our counsel,
12:12:26 25 yeah.

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12:12:26 1 But, yeah, I did capture screenshots at
2 the time and I sent those screenshots to our counsel
3 in March or April of 2022. I would be very
4 surprised to learn that they have not made it into
12:12:39 5 evidence.
6 Q Are the screenshots that we looked at
7 today those screenshots that you captured in March
8 of 2022?
9 A They have the same information that you’ve
12:12:51 10 shown me with the dates — that’s why I was saying
11 there’s going to be some redundancy.
12 As you’re asking about screenshots, I
13 realized there’s one that you haven’t shown me. But
14 your question was specifically about Google Search
12:13:02 15 Console and there was nothing that I know of from
16 Google Search Console that you haven’t shown me,
17 that we haven’t discussed.
18 Q What’s the one screenshot that I haven’t
19 shown you that you’re thinking of?
12:13:13 20 A The screenshot with the TXT records
21 themselves.
22 Q Okay. And is that — did you capture that
23 on the WordPress or where did you capture that
24 screenshot?
12:13:23 25 A I think I used just a free DNS Explorer

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12:19:08 1 contrary, so I had no reason to conduct any in-depth
2 investigation of any BCS individuals.
3 Q So that’s really — focus on my question.
4 It is really yes or no.
12:19:18 5 Did you look into the possibility that
6 Dr. Hughes was the person who submitted the
7 temporary request to deindex?
8 A Yes.
9 Q What did that investigation entail?
12:19:32 10 A That investigation entailed looking at the
11 records that we’ve discussed and looking for simple
12 things like who had access. And I don’t believe
13 I’ve seen a single piece of evidence that indicates
14 that Dr. Hughes had access.
12:19:48 15 Q Right. So you haven’t seen a single piece
16 of evidence that suggests that my clients had access
17 on March 9th?
18 MR. SONG: Objection; calls for speculation,
19 lack of foundation, argumentative.
12:19:59 20 BY MR. TATE:
21 Q Can you point to a single piece of
22 evidence that says that Mr. Whiteley had access on
23 March 9th when the deindexing request was made?
24 A We’ve produced ample evidence that
12:20:12 25 Mr. Whiteley had access eventually. And like I

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12:20:15 1 said, I know that he had access before I did. I
2 can’t speak specifically to March 9th, but I know he
3 had access before I did. And as far as I know,
4 Dr. Hughes never had access.
12:20:27 5 Q Let’s be very clear here because you are
6 the representative of BCS.
7 BCS has no evidence that my clients had
8 access on March 9th, does it?
9 MR. SONG: Objection; lack of foundation, calls
12:20:38 10 for speculation, argumentative, calls for a
11 narrative.
12 THE WITNESS: With the clarifications I
13 provided, the answer to your question is yes. We
14 have no evidence specifically pointing to March 9th.
12:20:51 15 BY MR. TATE:
16 Q Great. As far as you’re concerned, it
17 must have been Jeremy Whiteley who deindexed it
18 because you saw that he had access on March 11th;
19 correct?
12:21:07 20 A As far as I mentioned, with my level of
21 access in Google Console, I can’t see or
22 administrator — or administrate Ms. McNamara’s
23 access, so I cannot tell you definitively whether it
24 was Mr. Whiteley or it was Ms. McNamara. I know
12:21:20 25 that they both have access.

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12:21:22 1 Q So why did BCS say Jeremy Whiteley if they
2 can’t definitively say it was him?
3 MR. SONG: Objective — objection; lack of
4 foundation, calls for speculation, argumentative,
12:21:34 5 calls for a narrative answer.
6 THE WITNESS: Because there’s evidence that
7 both defendants were involved in the attack.
8 BY MR. TATE:
9 Q What evidence is there that Jeremy
12:21:44 10 Whiteley was involved in the attack?
11 A That he has illicit access to our Google
12 Search Console.
13 Q Let’s assume everything that you’re saying
14 is true and Jeremy Whiteley had access to Google
12:22:00 15 Search Console as of March 11.
16 How does that show that he was the one
17 that deindexed it?
18 A Well, I think it’s the same thing I
19 pointed out earlier where you go and you look at the
12:22:14 20 people who have access. Many of those people, when
21 you look at those logs and you see myself, Captain
22 Hurwitt, Ms. Beauregard, you look at the internal
23 staff at BCS who were working side by side with me
24 to try to remove the deindex request, all of them
12:22:30 25 were working toward that purpose alongside me. None

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12:22:33 1 of them are hostile towards BCS.
2 The only people who did have access and
3 are hostile towards BCS are the defendants. As I
4 mentioned, Google doesn’t produce a log that
12:22:44 5 directly says, you know, so and so placed this
6 request on this date, but there are only two
7 individuals who are known malicious to BCS who we
8 know had access around that time.
9 You’re drawing a distinction between the
12:23:01 10 9th and 11th and that’s fair from a legal
11 perspective. From a cybersecurity perspective, the
12 problem is if they ever had access, and that they
13 still have access. You showed me a screenshot from
14 a few weeks ago that shows that they still have
12:23:18 15 access.
16 Q I’m putting Exhibit 36 back into the chat.
17 I want to go back to the same supplemental response
18 we’ve been talking about, the Supplemental Response
19 No. 2.
12:23:49 20 A Supplemental response, okay. I’m looking
21 at the bottom of page — it’s 3 on the page, 4 on
22 the pdf?
23 Q Yes, let’s go to 4 on the page, 5 on the
24 pdf. The same — same supplemental response we’ve
12:24:03 25 been talking about all day today.

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15:06:17 1 A Ms. Beauregard and myself.
2 Q I have yet to see any screenshots from
3 yourself contemporaneous from March 2022.
4 Are you sure such screenshots exist?
15:06:30 5 A Yes.
6 Q And do you know why they have not been
7 produced in this action?
8 MR. SONG: Objection; lack of foundation,
9 argumentative, calls for speculation.
15:06:45 10 THE WITNESS: I think I mentioned earlier I am
11 surprised to hear the news that they haven’t been
12 produced because I’m quite certain that I sent them
13 to our counsel. And I believe I sent them in the
14 time frame of March, April, May of 2022.
15:06:59 15 BY MR. TATE:
16 Q And you sent them to your counsel in PNG
17 format; correct?
18 MR. SONG: Calls for speculation and
19 argumentative.
15:07:14 20 THE WITNESS: That is possible. It is in fact
21 likely that at least some, if not all, were in PNG
22 format.
23 BY MR. TATE:
24 Q Do you know if those PNGs are still on the
15:07:25 25 computer that you used to capture the screenshots?

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15:07:28 1 A I suspect that some of them are.
2 Q And you didn’t hand over your computer to
3 be imaged or examined by Consilio, did you?
4 A No.
15:07:43 5 Q Mr. Jensen, do you do web development?
6 A Not anymore. Not really. Well, you could
7 argue that what I do overlaps with web development.
8 It requires proficiency in web development, but it’s
9 not really my area of focus.
15:08:03 10 Q And are you aware that local web content
11 can be altered using developer tools?
12 A Yes.
13 MR. SONG: Objection; lack of foundation, calls
14 for speculation, argumentative.
15:08:17 15 BY MR. TATE:
16 Q So when you took the screenshots, did you
17 capture the native HTML files?
18 A You mean the native HTML files from like
19 Google Console?
15:08:37 20 Q Yes.
21 A No.
22 Q And so you’ve got more experience than I.
23 How can I be certain with any degree of forensic
24 certainty that the screenshots that have been
15:08:56 25 provided have not been altered?

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1 any services or products to any party’s attorney or
2 third party who is financing all or part of the action
3 without first offering same to all parties or their
4 attorneys attending the deposition and making same
5 available at the same time to all parties or their
6 attorneys. (Civ. Proc. 2025.320 (b))
7 I shall not provide any service or product
8 consisting of the deposition officer’s notations or
9 comments regarding the demeanor of any witness,
10 attorney, or party present at the deposition to any
11 party or any party’s attorney or third party who is
12 financing all or part of the action, nor shall I collect
13 any personal identifying information about the witness
14 as a service or product to be provided to any party or
15 third party who is financing all or part of the action.
16 (Civ. Proc. 2025.320(c))
17

18 Dated: May 1, 2023
19

20

21 _____________________________

KIMBERLY C. REICHERT
22

23

24

25

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EXHIBIT 5
Case 2:22-cv-02052-MAA Document 98-6 Filed 07/14/23 Page 2 of 4 Page ID #:3756

Breaking Code Silence v. McNamara et al.

I. Custodians and Data Sources Included in ESI Order
A. Data Sources in BCS Possession, Custody or Control

Cloudways WordPress
databases, server databases, server Any other tech-
Email + Google Facebook Hootsuite Audit Hootsuite Billing Instagram Audit PayPal Audit and audit and and audit and WhatsApp Chat Telegram Chat Google admin AdWords audit Google admin Facebook Facebook audit YouTube audit based
1 3 4 5 6 3
Apple Messages3 Computers7 Zoom Account8 Hootsuite Logs9 Data9 History9
10 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 4 25 26 27
Custodian Drive Cell Phone Account Twitter Account Skype Account Slack Account Text Messages Instagram Logs History Logs Slack Audit Logs Server Logs access logs) access logs) Logs Logs audit logs logs iCloud Box.net security logs System logs TikTok audit logs messages logs for BCS page logs Signal chatlogs communications
Breaking Code Silence Search Term Hits 5609 N/A 35 N/A N/A 1148 N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A 415 N/A N/A N/A N/A
Reviewed 5609 35 1148 1 1 1 4 305 1 26 32 11 415
Produced 2272 35 0 1 1 0 4 305 1 26 32 11 415
Remaining 0 0 0 0 0 0 0 0 0 0 0 0 0
Time (hours) 0 0 0 0 0 0 0 0 0 0 0 0 0
Appelgate, Meg Search Term Hits 988
Reviewed 562 Outside the possession, custody, or control of BCS and therefore excluded from collection under ESI Order § 4.4 28
Produced 562
Remaining 426
Time (hours) 9
Beauregard, Noelle Search Term Hits 405
Reviewed 405
Produced 142
Remaining 0
Time (hours) 0
Conroyd, Arianna Search Term Hits 2344
Reviewed 720
Produced 597
Remaining 1624
Time (hours) 36
Cook, Bobby Search Term Hits 6830
Reviewed 2332
Produced 1771
Remaining 4498
Time (hours) 100
Furnace, Eugene Search Term Hits 78
Reviewed 75
Produced 19
Remaining 3
Time (hours) 0
Hughes, Vanessa Search Term Hits 32298
Reviewed 32584
Produced 17911
Remaining 286
Time (hours) 6
Hurwitt, Megan Search Term Hits 637
Reviewed 212
Produced 209
Remaining 425
Time (hours) 9
Jensen, Jesse Search Term Hits 1114
Reviewed 274
Produced 271
Remaining 840
Time (hours) 19
Kirchoff, Shelby Search Term Hits 274
Reviewed 111
Produced 111
Remaining 163
Time (hours) 4
Magill, Jennifer Search Term Hits 42245
Reviewed 26107
Produced 20730
Remaining 16138
Time (hours) 359
McNamara, Katherine Search Term Hits 2197
Reviewed 1502
Produced 1490
Remaining 695
Time (hours) 15
2
Silverman, Lenore N/A N/A2
Whiteley, Jeremy Search Term Hits 403
Reviewed 403
Produced 388
Remaining 0
Time (hours) 0

Notes
1. Collection included entire BCS Googe Workspace Account (Mail, Drive, Calendar, Contacts, Currents Stream, Groups).
2. Ms. Silverman does not have a BCS Google Workspace account.
3. BCS does not provide cell phones to its board members, employees or volunteers.
4. The Facebook account collection includes Facebook logs and Facebook Business Suite and Ad Account logs. BCS did not run search terms against log data; rather, BCS produced all log data collected.
5. BCS does not have a Twitter account.
6. BCS does not have a Skype account.
7. BCS does not provide computers to its board members, employees or volunteers.
8. BCS has no Zoom account.
9. BCS has a free HootSuite account which does not allow the user to generate any logs (not within possession, custody or control).
10. BCS did not run search terms against log data; rather, BCS produced all log data collected.
11. BCS did not run search terms against log data; rather, BCS produced all log data collected.
12. BCS does not have access to Slack audit logs.
13. BCS has no “systems” other than those identified elsewhere on the data source list.
14. BCS produced its export of the Cloudways database in native format as a single container file. BCS also produced 305 log files separately. BCS did not run search terms against logs; rather BCS produced all log data collected.
15. BCS produced its export of the WordPress database in native format as a single container file.
16. BCS does not have a WhatsApp account.
17. BCS does not have a Telegram account.
18. BCS did not run search terms against log data; rather, BCS produced all log data collected.
19. BCS did not run search terms against log data; rather, BCS produced all log data collected.
20. BCS does not have an iCloud account.
21. BCS does not have a Box.com account.
22. The names of the logs collected by BCS’s forensic examiner do not conform to those in the Order. BCS collected logs for Google Workspace, Google Tag Manager, and Google Search Console . BCS also did not run search terms against logs.
23. BCS has no “servers”, but relies on cloud-based applications (e.g., Google Workspace).
24. BCS does not have a TikTok account.
25. BCS collected available messages and posts from its YouTube channel. Audit logs are not available to BCS.
26. BCS does not have a Signal account. Individuals may have Signal accounts on their personal cell phones. Given the nature of Signal, BCS cannot collect from Signal pursuant to the ESI order. Defendants did not collect from Signal either.
27. BCS does not have any other tech-based communications in its possession, custody or control.
28. “‘Control is defined as the legal right to obtain documents upon demand.’ . . . [W]e conclude—consistently with all of our sister circuits who have addressed the issue—that the legal control test is the proper standard under Rule 45.” In re Citric Acid Litig.,
191 F.3d 1090, 1107–08 (9th Cir. 1999). “’[T]he Ninth Circuit has held that discovery under Rule 34 is limited to documents in the responding party’s “possession, custody or control. . . Control is the ‘legal right to obtain documents upon demand.’” MAO-MSO
Rec. II, LLC v. Mercury Gen. Corp., 2019 WL 2619637 (C.D. Cal. May 10, 2019). “In the Ninth Circuit, a ‘practical ability to obtain the requested documents’ from a related organization is not enough to constitute control because the related organization ‘could
legally—and without breaching any contract—[ ] refuse to turn over such documents.’” Sefi v. Mercedes-Benz U.S.A., LLC, 2014 WL 7187111 (N.D. Cal. Dec. 16, 2014).

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Breaking Code Silence v. McNamara et al.

I. Custodians and Data Sources Included in ESI Order
B. Data Sources Not in BCS Possession, Custody or Control
Custodian Cell Phone
Cook, Bobby Search Term Hits Not available1
Hughes, Vanessa Search Term Hits 7807
Reviewed 3508
Produced 1732
Remaining 4299
Time (hours) 96
Jensen, Jesse Reviewed2
Magill, Jennifer Search Term Hits 18460
Reviewed 0
Produced 0
Remaining 18460
Time (hours) 410
McNamara, Katherine Opposing party
Whiteley, Jeremy Opposing party

Notes
1. Mr. Cook is no longer affiliated with BCS and has produced available information directly to Defendants.
2. Mr. Jensen advised that he has reviewed information on his cell phone and has did no communications relevant to this litigation.

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Breaking Code Silence v. McNamara et al.

II. Custodians and Data Sources Not Included in ESI Order
A. Data Sources Not in BCS Possession, Custody or Control

Instagram Messages YouTube Messages
Custodian Personal Email and Posts and Posts Dropbox
Breaking Code Silence Search Term Hits N/A 220 66 2687
Reviewed 220 66 2687
Produced 220 66 2669
Remaining 0 0 0
Time (hours) 0 0 0
Hughes, Vanessa Search Term Hits1 N/A
Jensen, Jesse Search Term Hits 2
67
Reviewed 0
Produced 0
Remaining 67
Time (hours) 2
Magill, Jennifer Search Term Hits Pending3
Reviewed
Produced
Remaining
Time (hours)

Notes
1. Counsel reviewed Ms. Hughes personal email and confirmed no relevant, non-privileged information was available.
2. Mr. Jensen consented to the collection of his personal email, and BCS performed a targeted collection consistent with Mr. Jensen’s obligations to other clients’
NDAs.
3. Ms. Magill consented to the collection of her personal email, and BCS has collected potentially relevant data, which it is processing for review pursuant to the ESI
order.

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Case 2:22-cv-02052-MAA Document 98-7 Filed 07/14/23 Page 2 of 7 Page ID #:3760

From: Lueddeke, Jason
To: Catherine Close; Adam Tate; Adam J Schwartz; Helene P. Saller
Cc: Bentz, Tamany; Brown, Michael P.; Grush, Benjamin; Kiker, Dennis
Subject: BCS v. McNamara
Date: Thursday, April 27, 2023 8:29:44 PM
Attachments: image001.png
BCS v. McNamara Data Sources Questionnaire.docx

Counsel,

Pursuant to Item 2(a) of the Court’s April 26, 2023 order (Dkt. 54), we are providing the
attached questionnaire to Ms. McNamara and Mr. Whiteley, who are identified as
custodians in Section 4.3 of the EDO. Please have them sign, date, and return the
questionnaire to us by 10am PST on Monday, May 1.

Thank you,
Jason

Jason Taylor Lueddeke
Associate

T +1 310 595 3066 DLA Piper LLP (US)
jason.lueddeke@us.dlapiper.com 2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, CA 90067-4704

dlapiper.com

The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use
of the intended recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any
unauthorized review, use, disclosure, dissemination, distribution, or copying of this communication, or any of its
contents, is strictly prohibited. If you have received this communication in error, please reply to the sender and destroy
all copies of the message. To contact us directly, send to postmaster@dlapiper.com. Thank you.

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Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA (C.D. Cal.)

1. Do you have an email account in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes Yes
No No
2. Do you have a cell phone in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes Yes
No No
3. Do you have a Facebook account in your If yes, are you willing to perform a keyword search
possession, custody, or control? and give us copies of items that hit on the search?

Yes Yes
No No
4. Do you have a Twitter account in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes Yes
No No
5. Do you have a Skype account in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes Yes
No No
6. Do you have a Google Drive account in your If yes, are you willing to perform a keyword search
possession, custody, or control other than the one and give us copies of items that hit on the search?
maintained by BCS?

Yes Yes
No No
7. Do you have text messages in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes Yes
No No

95
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Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA (C.D. Cal.)

8. Do you have Apple Messages in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes Yes
No No
9. Do you have a computer in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes Yes
No No
10. Do you have a Zoom account in your possession, If yes, are you willing to locate and give us Zoom call
custody, or control? logs from your account?

Yes Yes
No No
11. Do you have Hootsuite logs in your possession, If yes, are you willing to locate and give us the logs
custody, or control? from your account?

Yes Yes
No No
12. Do you have Hootsuite audit data in your If yes, are you willing to locate and give us the audit
possession, custody, or control? data from your account?

Yes Yes
No No
13. Do you have Hootsuite billing history in your If yes, are you willing to locate and give us the billing
possession, custody, or control? history from your account?

Yes Yes
No No
14. Do you have Instagram logs in your possession, If yes, are you willing to locate and give us copies of
custody, or control? the logs from your account?

Yes Yes
No No
15. Do you have Instagram audit history in your If yes, are you willing to locate and give us the audit
possession, custody, or control? history from your account?

96
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Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA (C.D. Cal.)

Yes Yes
No No
16. Do you have PayPal audit logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes Yes
No No
17. Do you have Slack audit logs in your possession, If yes, are you willing to locate and give us the logs
custody, or control? from your account?

Yes Yes
No No
18. Do you have server logs in your possession, If yes, are you willing to locate and give us the logs
custody, or control? from your account?

Yes Yes
No No
19. Do you have Cloudways database, server and If yes, are you willing to locate and give us the logs
audit and access logs in your possession, custody, or from your account?
control?

Yes Yes
No No
20. Do you have WordPress database, server and If yes, are you willing to locate and give us the logs
audit and access logs in your possession, custody, or from your account?
control?

Yes Yes
No No
21. Do you have WhatsApp chat logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes Yes
No No
22. Do you have Telegram chat logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

97
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Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA (C.D. Cal.)

Yes Yes
No No
23. Do you have Google admin audit logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes Yes
No No
24. Do you have AdWords audit logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes Yes
No No
25. Do you have an iCloud account in your If yes, are you willing to perform a keyword search
possession, custody, or control? and give us copies of the items that hit on the search?

Yes Yes
No No
26. Do you have a Box.net account in your If yes, are you willing to perform a keyword search
possession, custody, or control? and give us copies of the items that hit on the search?

Yes Yes
No No
27. Do you have Google admin security logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes Yes
No No
28. Do you have system logs in your possession, If yes, are you willing to locate and give us the logs
custody, or control? from your account?

Yes Yes
No No
29. Do you have TikTok audit logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

98
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Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA (C.D. Cal.)

Yes Yes
No No
30. Do you have Facebook messages in your If yes, are you willing to perform a keyword search
possession, custody, or control? and give us copies of the items that hit on the search?

Yes Yes
No No
31. Do you have Facebook audit logs for BCS page If yes, are you willing to locate and give us the logs?
in your possession, custody, or control?

Yes Yes
No No
32. Do you have YouTube audit logs in your If yes, are you willing to locate and give us the logs?
possession, custody, or control?

Yes Yes
No No
33. Do you have Signal chatlogs in your possession, If yes, are you willing to locate and give us the logs?
custody, or control?

Yes Yes
No No
34. Do you have any other tech-based If yes, are you willing to perform a keyword search
communications exchanged between Vanessa and give us copies of the items that hit on the search?
Hughes, Jennifer Magill, Katherine McNamara, and
Jeremy Whiteley, Breaking Code Silence, Jesse
Jensen, Noelle Beauregard, Lenore Silverman,
Eugene Furnace, the entire BCS Board of Directors,
Bobby Cook, Megan Hurwitt, Arianna Conroyd,
Shelby Kirchoff and anyone else who had
administrative permissions on the Breaking Code
Silence website or any of its accounts or systems in
your possession, custody, or control?

Yes Yes
No No

Dated: _____________________ Signed: ________________________
Name: _________________________

99
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Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 3 of 36 Page ID #:3768
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Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 7 of 36 Page ID #:3772
Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 8 of 36 Page ID #:3773
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Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 19 of 36 Page ID #:3784
Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 20 of 36 Page ID #:3785
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Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 22 of 36 Page ID #:3787
Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 23 of 36 Page ID #:3788
Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 24 of 36 Page ID #:3789
Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 25 of 36 Page ID #:3790
Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 26 of 36 Page ID #:3791
Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 27 of 36 Page ID #:3792
Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 28 of 36 Page ID #:3793
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Case 2:22-cv-02052-MAA Document 98-8 Filed 07/14/23 Page 30 of 36 Page ID #:3795
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Case 2:22-cv-02052-MAA Document 98-9 Filed 07/14/23 Page 1 of 8 Page ID #:3802

EXHIBIT 8
Case 2:22-cv-02052-MAA Document 98-9 Filed 07/14/23 Page 2 of 8 Page ID #:3803

Lueddeke, Jason

From: Rob Cook <rob.cook1212@gmail.com>
Sent: Wednesday, April 26, 2023 6:18 PM
To: Lueddeke, Jason
Subject: Re: BCS v. McNamara litigation – attention required
Attachments: BCS v. McNamara Data Sources Questionnaire.pdf

EXTERNAL MESSAGE

I have filled out the questionnaire. I have already been deposed and completed a subpoena I was already served and
produced all documents that refer to the defendants in this case or accounts in any way.I am no longer a employee or
volunteer of BCS as well and all I have now are my own personal accounts as I was restricted access per security
protocols to any account with BCS relation.There is nothing else I wish to share other than what has already been done
or asked of me by the courts. Thank you!

On Wed, Apr 26, 2023 at 3:37 PM Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com> wrote:

Hello,

We represent Plaintiff Breaking Code Silence in the litigation titled Breaking Code Silence v. Katherine
McNamara and Jeremy Whiteley. Ms. McNamara and Mr. Whiteley have requested that Breaking Code
Silence collect from you the information listed in the attached questionnaire. Please let us know if you have
any of the information in the left column of the questionnaire, and if you do, if you are willing to collect it and
provide it to Breaking Code Silence, who in turn will review it and potentially provide it to Ms. McNamara and
Mr. Whiteley.

If you have any questions, please call either me at 310-595-3066 or Tamany Vinson Bentz at 310-595-3052.

We request that you please return the questionnaire to us by Monday, May 1 at 10am PST.

Thank you,

Jason

Jason Taylor Lueddeke
Associate

T +1 310 595 3066 DLA Piper LLP (US)
jason.lueddeke@us.dlapiper.com 2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, CA 90067-4704
1

136
Case 2:22-cv-02052-MAA Document 98-9 Filed 07/14/23 Page 3 of 8 Page ID #:3804

dlapiper.com

The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended
recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use,
disclosure, dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received
this communication in error, please reply to the sender and destroy all copies of the message. To contact us directly, send to
postmaster@dlapiper.com. Thank you.

2

137
Case 2:22-cv-02052-MAA Document 98-9 Filed 07/14/23 Page 4 of 8 Page ID #:3805

Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA (C.D. Cal.)

1. Do you have an email account in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
2. Do you have a cell phone in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
3. Do you have a Facebook account in your If yes, are you willing to perform a keyword search
possession, custody, or control? and give us copies of items that hit on the search?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
4. Do you have a Twitter account in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
5. Do you have a Skype account in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
6. Do you have a Google Drive account in your If yes, are you willing to perform a keyword search
possession, custody, or control other than the one and give us copies of items that hit on the search?
maintained by BCS?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
7. Do you have text messages in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes ☐✔ Yes ☐
No ☐ No ☐✔

138
Case 2:22-cv-02052-MAA Document 98-9 Filed 07/14/23 Page 5 of 8 Page ID #:3806

Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA (C.D. Cal.)

8. Do you have Apple Messages in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
9. Do you have a computer in your possession, If yes, are you willing to perform a keyword search
custody, or control? and give us copies of items that hit on the search?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
10. Do you have a Zoom account in your possession, If yes, are you willing to locate and give us Zoom call
custody, or control? logs from your account?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
11. Do you have Hootsuite logs in your possession, If yes, are you willing to locate and give us the logs
custody, or control? from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
12. Do you have Hootsuite audit data in your If yes, are you willing to locate and give us the audit
possession, custody, or control? data from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
13. Do you have Hootsuite billing history in your If yes, are you willing to locate and give us the billing
possession, custody, or control? history from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
14. Do you have Instagram logs in your possession, If yes, are you willing to locate and give us copies of
custody, or control? the logs from your account?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
15. Do you have Instagram audit history in your If yes, are you willing to locate and give us the audit
possession, custody, or control? history from your account?

Yes ☐ Yes ☐

139
Case 2:22-cv-02052-MAA Document 98-9 Filed 07/14/23 Page 6 of 8 Page ID #:3807

Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA (C.D. Cal.)

No ☐✔ No ☐✔
16. Do you have PayPal audit logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
17. Do you have Slack audit logs in your possession, If yes, are you willing to locate and give us the logs
custody, or control? from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
18. Do you have server logs in your possession, If yes, are you willing to locate and give us the logs
custody, or control? from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
19. Do you have Cloudways database, server and If yes, are you willing to locate and give us the logs
audit and access logs in your possession, custody, or from your account?
control?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
20. Do you have WordPress database, server and If yes, are you willing to locate and give us the logs
audit and access logs in your possession, custody, or from your account?
control?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
21. Do you have WhatsApp chat logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
22. Do you have Telegram chat logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes ☐ Yes ☐

140
Case 2:22-cv-02052-MAA Document 98-9 Filed 07/14/23 Page 7 of 8 Page ID #:3808

Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA (C.D. Cal.)

No ☐✔ No ☐✔
23. Do you have Google admin audit logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
24. Do you have AdWords audit logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
25. Do you have an iCloud account in your If yes, are you willing to perform a keyword search
possession, custody, or control? and give us copies of the items that hit on the search?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
26. Do you have a Box.net account in your If yes, are you willing to perform a keyword search
possession, custody, or control? and give us copies of the items that hit on the search?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
27. Do you have Google admin security logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
28. Do you have system logs in your possession, If yes, are you willing to locate and give us the logs
custody, or control? from your account?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
29. Do you have TikTok audit logs in your If yes, are you willing to locate and give us the logs
possession, custody, or control? from your account?

Yes ☐ Yes ☐

141
Case 2:22-cv-02052-MAA Document 98-9 Filed 07/14/23 Page 8 of 8 Page ID #:3809

Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA (C.D. Cal.)

No ☐✔ No ☐✔
30. Do you have Facebook messages in your If yes, are you willing to perform a keyword search
possession, custody, or control? and give us copies of the items that hit on the search?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
31. Do you have Facebook audit logs for BCS page If yes, are you willing to locate and give us the logs?
in your possession, custody, or control?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
32. Do you have YouTube audit logs in your If yes, are you willing to locate and give us the logs?
possession, custody, or control?

Yes ☐ Yes ☐
No ☐✔ No ☐✔
33. Do you have Signal chatlogs in your possession, If yes, are you willing to locate and give us the logs?
custody, or control?

Yes ☐✔ Yes ☐
No ☐ No ☐✔
34. Do you have any other tech-based If yes, are you willing to perform a keyword search
communications exchanged between Vanessa and give us copies of the items that hit on the search?
Hughes, Jennifer Magill, Katherine McNamara, and
Jeremy Whiteley, Breaking Code Silence, Jesse
Jensen, Noelle Beauregard, Lenore Silverman,
Eugene Furnace, the entire BCS Board of Directors,
Bobby Cook, Megan Hurwitt, Arianna Conroyd,
Shelby Kirchoff and anyone else who had
administrative permissions on the Breaking Code
Silence website or any of its accounts or systems in
your possession, custody, or control?

Yes ☐✔ Yes ☐
No ☐ No ☐✔

142
Case 2:22-cv-02052-MAA Document 98-10 Filed 07/14/23 Page 1 of 3 Page ID #:3810

EXHIBIT 9
Case 2:22-cv-02052-MAA Document 98-10 Filed 07/14/23 Page 2 of 3 Page ID #:3811

From: Adam Tate
Sent: Wednesday, May 3, 2023 9:02 AM
To: Lueddeke, Jason; Catherine Close; Adam J Schwartz; Helene P. Saller
Cc: Bentz, Tamany; Brown, Michael P.; Grush, Benjamin; Kiker, Dennis
Subject: RE: BCS v. McNamara

Counsel,

In an anticipation of today’s continued IDC, I wanted to make sure we are all on the same page.  Section 4.3 has a list of
named custodians but also lists “the entire BCS Board of Directors” and “anyone else who had administrative
permissions on the website or any of BCS’s accounts or systems at the time the alleged hacking took place.”

We believe that those persons include at least the following:

Board Members
• Lenore Silverman
• Kate Truitt
• Dorit Saberi
• Dee Anna Hassanpour
• Apryl Alexander
• Roger Theodoredis
• Denette Boyd‐King
• Rosanna Salgado McDonald

Administrative Access to the Website (WordPress)
• Laura Wixon
• Amal Theodoredis

Please let us know in advance of the IDC whether one or more of these persons was not actually board member or did
not have administrative access to the Word Press.  Otherwise, we would expect the information that you provide the
Court today to include these persons.

‐Adam

From: Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>
Sent: Thursday, April 27, 2023 8:29 PM
To: Catherine Close <cac@jbblaw.com>; Adam Tate <Adam@jbblaw.com>; Adam J Schwartz
<adam@ajschwartzlaw.com>; Helene P. Saller <helene@jbblaw.com>
Cc: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Subject: BCS v. McNamara

Counsel,

Pursuant to Item 2(a) of the Court’s April 26, 2023 order (Dkt. 54), we are providing the attached
questionnaire to Ms. McNamara and Mr. Whiteley, who are identified as custodians in Section 4.3 of the
EDO. Please have them sign, date, and return the questionnaire to us by 10am PST on Monday, May 1.

1

142
Case 2:22-cv-02052-MAA Document 98-10 Filed 07/14/23 Page 3 of 3 Page ID #:3812

Thank you,
Jason

Jason Taylor Lueddeke
Associate

T +1 310 595 3066 DLA Piper LLP (US)
jason.lueddeke@us.dlapiper.com 2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, CA 90067-4704

dlapiper.com

The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended
recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure,
dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this
communication in error, please reply to the sender and destroy all copies of the message. To contact us directly, send to
postmaster@dlapiper.com. Thank you.

2

143
Case 2:22-cv-02052-MAA Document 98-11 Filed 07/14/23 Page 1 of 6 Page ID #:3813

EXHIBIT 10
Case 2:22-cv-02052-MAA Document 98-11 Filed 07/14/23 Page 2 of 6 Page ID #:3814

From: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>
Sent: Wednesday, May 3, 2023 11:34 AM
To: Lueddeke, Jason; MAAChambers
Cc: Kiker, Dennis; Catherine Close; Adam Tate; Adam J Schwartz
Subject: RE: Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA
Attachments: List for b.pdf; Scanned from a Xerox Multifunction Printer.pdf

Dear Judge Audero,

We write in response to the Court’s May 2, 2023 Minute Order in advance of today’s IDC at 2pm. Below are
Plaintiff’s responses to the Court’s requests.

a. Attached is a declaration from Dr. Calonga.

b. Attached is a chart regarding the information obtained from each of the custodians identified in
Section 4.3 of the EDO regarding (i) whether each custodian presently is volunteering or otherwise
associated with Plaintiff, and if so, what position he or she holds within the organization, and (ii)
whether each custodian voluntarily will provide the documents requested by Defendants pursuant
to the EDO.

c. BCS will make every effort to accelerate its review and production of documents but cannot in
confidence commit to a timeline shorter than that previously proposed.

The problem for BCS is simple math. Review of 47,352 documents will require over 1,000 hours.
BCS would like nothing more than to hire a dozen contract attorneys and complete the review in a
matter of weeks. That option is not available to BCS, however. As is true of everything it does, BCS
as an organization must rely on volunteers to donate time above and beyond their work and
personal commitments. Although it has and will continue to encourage its volunteers to donate as
much time as possible to the review, it is simply powerless to demand more.

The question for the Court, then, is whether it will punish BCS for its lack of resources or grant a
reasonable extension of the discovery cutoff. In this regard, BCS feels it is important to note the
following:

 A reasonable extension of time will prejudice no one. Indeed, defendants have already
acknowledged that they will need additional time to conduct third-party discovery. (Not
incidentally, this is discovery from individuals that defendants know are not under BCS’s
control, as evidenced by the fact that defendants have already subpoenaed and received
discovery from two former BCS volunteers – Bobby Cook and Noelle Beauregard.)
 Defendants have indicated that they do not intend to take depositions of anyone other than
Dr. Hughes, Ms. Magill and Mr. Jensen. BCS can complete production of documents for
these individuals by early July, enabling defendants to complete their depositions before
August.

Best regard,
Tamany

Tamany Vinson Bentz
Partner

1

144
Case 2:22-cv-02052-MAA Document 98-11 Filed 07/14/23 Page 3 of 6 Page ID #:3815

T +1 310 595 3052
F +1 310 595 3352
tamany.bentz@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>
Sent: Monday, May 1, 2023 9:42 AM
To: MAAChambers <MAA_Chambers@cacd.uscourts.gov>
Cc: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Catherine Close
<cac@jbblaw.com>; Adam Tate <Adam@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>
Subject: Breaking Code Silence v. McNamara et al., No. 2:22‐cv‐02052‐MAA

Dear Judge Audero,

We write in response to the Court’s April 26, 2023 Minute Order in advance of today’s IDC at 3pm. Below are
Plaintiff’s responses to the Court’s requests.

(a) Plaintiff’s counsel sent a questionnaire to each custodian identified in Section 4.3 of the Electronic
Discovery Order (“EDO”) inquiring (i) whether he or she had one or more of the sources of data identified in
Section 4.4 of the EDO, and (ii) if so, whether he or she was willing to perform keyword searches on one or
more of the sources of data and provide Plaintiff’s counsel with the results. Attached hereto are the responses
Plaintiff’s counsel received to date.

(b) Counsel for the parties met and conferred regarding a revised set of search terms to be used by the
custodians to search their sources of data to the extent they have any such sources, but have not reached
agreement. Given that the custodians would be running these searches on their own across multiple potential
sources (and likely without assistance from a vendor), it is Plaintiff’s position that the search terms should be
simple, but broad, and capable of being run by a layperson to maximize chances of capturing responsive
data. In contrast, Defendants provided Plaintiff with a 4-page list of search terms for the custodians to
run. Plaintiff does not believe that Defendants’ proposal is feasible or workable. Plaintiff’s proposal is as
follows:

Run these search terms

website, account, Katie, Jeremy, hack, index, deindex, “Google Search Console,” “Google Webmaster”

On these dates (these dates were proposed by Defendants)

March 7–13, 2022

(c) BCS does not intend to raise any undue burden objection with regard to outstanding document and data
production. Indeed, BCS is willing and able to complete review and production of all of the materials that have
been the subject of the IDC. BCS’s challenge is in completing the work by the current discovery cutoff. In
effect, then, BCS is requesting a modest extension of the discovery schedule.
 The Court may grant an extension of time upon a showing of good cause, which requires that the party
seeking an extension has exercised due diligence. Aardwolf Indus., LLC v. Abaco Machines USA, Inc.,
2017 WL 6888242, *3 (C.D. Cal. Sep. 7, 2017). The status of the parties’ productions demonstrate that
BCS has exercised diligence:
o To date, Defendants have produced 38,830 documents. Defendants are also continuing to make
productions, most recently on Friday, April 28, 2023.
o In the same time frame, BCS has produced 48,702 documents (25% more than
Defendants). BCS has completed review of approximately 60% of data collected to date, and
estimates that it will ultimately produce over 80,000 documents.

2

145
Case 2:22-cv-02052-MAA Document 98-11 Filed 07/14/23 Page 4 of 6 Page ID #:3816
In addition, Defendants submitted additional RFPs only three days ago, potentially increasing
o
the volume of documents that BCS must collect, review and produce.
o Thus, BCS has exceeded Defendants’ pace with regard to productions, and, based on the parties’
representations, has a significantly larger scope of discovery (e.g., 12 individual custodians vs.
two).
 It is important to note that neither party has requested any extensions of the current discovery
deadline, which was set based upon our independent expectations about the volume of documents and
data to be reviewed and produced.
o Given these facts, and the simple reality of BCS’s limited resources, BCS feels that a 70 day
extension of time to complete discovery is not unreasonable. See, e.g., Fed. R. Civ. P. 26(b)(1)
(proportionality in discovery requires consideration of “the parties’ resources”); The Sedona
Conference, Commentary on Proportionality in Electronic Discovery, 18 Sedona Conf. J. 141,
(2017) (“[a] party’s resources, or lack thereof, may encompass any number of items
including…personnel and overall financial strength (or weakness)”). (In this regard, it is
important to note that, although BCS’s counsel is a large firm, it is nonetheless constrained by
its own resources, which are voluntary and limited.)

(d) Counsel diligently worked with the Veterans’ Administration, but was unable to obtain a declaration
from Vanessa Hughes’ physician before this email. Counsel has a call scheduled with the physician to finalize a
declaration on Tuesday, May 2 at 11:30 PT. Attached hereto is a declaration from counsel documenting the
timeline of their efforts to obtain a declaration, along with correspondence with the Veterans’ Administration.

(e) Attached is a calendar of availability for Vanessa Hughes, Jennifer Magill and Jesse Jensen. Bobby Cook
is no longer a volunteer with BCS and we understand has been providing information and speaking directly to
Defendants who may have additional information on his availability.

Respectfully,

Jason Lueddeke

Jason Taylor Lueddeke
Associate

T +1 310 595 3066 DLA Piper LLP (US)
jason.lueddeke@us.dlapiper.com  2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, CA 90067-4704

dlapiper.com

The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended
recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure,
dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this
communication in error, please reply to the sender and destroy all copies of the message. To contact us directly, send to
postmaster@dlapiper.com. Thank you.

3

146
Case 2:22-cv-02052-MAA Document 98-11 Filed 07/14/23 Page 5 of 6 Page ID #:3817

Custodian Whether they Position at BCS Whether custodian
are presently will voluntarily
volunteering or provide
otherwise documents
associated with requested by
Plaintiff Defendants
pursuant to EDO
Dr. Vanessa Yes Board President Provided emails
Hughes from personal
email account and
text messages from
personal phone;
will provide Signal
communications;
not willing to
provide other
accounts
Jennifer Magill Yes CEO; Board Provided emails
Member from personal
email account and
text messages from
personal phone;
not willing to
provide other
accounts
Katherine No Stated that they
McNamara were previously
collected/produced
Jeremy Whiteley No Stated that they
were previously
collected/produced
Jesse Jensen Yes CISO Provided emails
from personal
email account; not
willing to provide
other accounts
Noelle No Provided records
Beauregard directly to
Defendants in
response to
subpoena
Lenore Silverman Yes Board Member No response to
requests
Eugene Furnace No Responded that he
had no records
related to BCS

WEST\302655242.1
WEST\302655242.1

147
Case 2:22-cv-02052-MAA Document 98-11 Filed 07/14/23 Page 6 of 6 Page ID #:3818

Bobby Cook No Provided records
directly to
Defendants in
response to
subpoena
Megan Hurwitt No No
Arianna Conroyd Yes CAO Yes
Shelby Kirchoff No No response to
request
Dr. Apryl Yes Board Member No response to
Alexander after request
unauthorized
access occurred

WEST\302655242.1
WEST\302655242.1

148
Case 2:22-cv-02052-MAA Document 98-12 Filed 07/14/23 Page 1 of 5 Page ID #:3819

EXHIBIT 11
Case 2:22-cv-02052-MAA Document 98-12 Filed 07/14/23 Page 2 of 5 Page ID #:3820

Bekah Chamberlin

From: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>
Sent: Thursday, May 4, 2023 4:58 PM
To: Adam Tate; Lueddeke, Jason
Cc: Kiker, Dennis; Catherine Close; Adam J Schwartz
Subject: RE: Breaking Code Silence v. McNamara et al., No. 2:22-cv-02052-MAA

Adam,
Apryl Alexander is on the Board.  The rest on your list were never on the Board.  Kate was voted onto the board in 2021
and then decided not to join the Board after she met with Ms. McNamara.  Roger and Rosanna were also voted onto the
Board but decided not to join it.  The remaining people on your list are people who at one time or another were
considered for the Board but none ever joined.
Tamany

Tamany Vinson Bentz
Partner

T +1 310 595 3052
F +1 310 595 3352
tamany.bentz@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Thursday, May 4, 2023 11:38 AM
To: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>
Cc: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Catherine Close <cac@jbblaw.com>; Adam J Schwartz
<adam@ajschwartzlaw.com>
Subject: RE: Breaking Code Silence v. McNamara et al., No. 2:22‐cv‐02052‐MAA

EXTERNAL MESSAGE

Tamany,

At the IDC, I believed that you represented to the Court that the following persons were never board members of BCS,
did I understand that correctly?

• Kate Truitt
• Dorit Saberi
• Dee Anna Hassanpour
• Apryl Alexander
• Roger Theodoredis
• Denette Boyd‐King
• Rosanna Salgado McDonald

Which were the three that supposedly rejected the offer to be board members?  What about the other four?

‐Adam
1

149
Case 2:22-cv-02052-MAA Document 98-12 Filed 07/14/23 Page 3 of 5 Page ID #:3821

From: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>
Sent: Wednesday, May 03, 2023 11:34 AM
To: Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; MAAChambers <MAA_Chambers@cacd.uscourts.gov>
Cc: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Catherine Close <cac@jbblaw.com>; Adam Tate
<Adam@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>
Subject: RE: Breaking Code Silence v. McNamara et al., No. 2:22‐cv‐02052‐MAA

Dear Judge Audero,

We write in response to the Court’s May 2, 2023 Minute Order in advance of today’s IDC at 2pm. Below are
Plaintiff’s responses to the Court’s requests.

a. Attached is a declaration from Dr. Calonga.

b. Attached is a chart regarding the information obtained from each of the custodians identified in
Section 4.3 of the EDO regarding (i) whether each custodian presently is volunteering or otherwise
associated with Plaintiff, and if so, what position he or she holds within the organization, and (ii)
whether each custodian voluntarily will provide the documents requested by Defendants pursuant
to the EDO.

c. BCS will make every effort to accelerate its review and production of documents but cannot in
confidence commit to a timeline shorter than that previously proposed.

The problem for BCS is simple math. Review of 47,352 documents will require over 1,000 hours.
BCS would like nothing more than to hire a dozen contract attorneys and complete the review in a
matter of weeks. That option is not available to BCS, however. As is true of everything it does, BCS
as an organization must rely on volunteers to donate time above and beyond their work and
personal commitments. Although it has and will continue to encourage its volunteers to donate as
much time as possible to the review, it is simply powerless to demand more.

The question for the Court, then, is whether it will punish BCS for its lack of resources or grant a
reasonable extension of the discovery cutoff. In this regard, BCS feels it is important to note the
following:

 A reasonable extension of time will prejudice no one. Indeed, defendants have already
acknowledged that they will need additional time to conduct third-party discovery. (Not
incidentally, this is discovery from individuals that defendants know are not under BCS’s
control, as evidenced by the fact that defendants have already subpoenaed and received
discovery from two former BCS volunteers – Bobby Cook and Noelle Beauregard.)
 Defendants have indicated that they do not intend to take depositions of anyone other than
Dr. Hughes, Ms. Magill and Mr. Jensen. BCS can complete production of documents for
these individuals by early July, enabling defendants to complete their depositions before
August.

Best regard,
Tamany

Tamany Vinson Bentz
Partner

T +1 310 595 3052
F +1 310 595 3352
tamany.bentz@us.dlapiper.com

2

150
Case 2:22-cv-02052-MAA Document 98-12 Filed 07/14/23 Page 4 of 5 Page ID #:3822

DLA Piper LLP (US)
dlapiper.com

From: Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>
Sent: Monday, May 1, 2023 9:42 AM
To: MAAChambers <MAA_Chambers@cacd.uscourts.gov>
Cc: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Catherine Close
<cac@jbblaw.com>; Adam Tate <Adam@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>
Subject: Breaking Code Silence v. McNamara et al., No. 2:22‐cv‐02052‐MAA

Dear Judge Audero,

We write in response to the Court’s April 26, 2023 Minute Order in advance of today’s IDC at 3pm. Below are
Plaintiff’s responses to the Court’s requests.

(a) Plaintiff’s counsel sent a questionnaire to each custodian identified in Section 4.3 of the Electronic
Discovery Order (“EDO”) inquiring (i) whether he or she had one or more of the sources of data identified in
Section 4.4 of the EDO, and (ii) if so, whether he or she was willing to perform keyword searches on one or
more of the sources of data and provide Plaintiff’s counsel with the results. Attached hereto are the responses
Plaintiff’s counsel received to date.

(b) Counsel for the parties met and conferred regarding a revised set of search terms to be used by the
custodians to search their sources of data to the extent they have any such sources, but have not reached
agreement. Given that the custodians would be running these searches on their own across multiple potential
sources (and likely without assistance from a vendor), it is Plaintiff’s position that the search terms should be
simple, but broad, and capable of being run by a layperson to maximize chances of capturing responsive
data. In contrast, Defendants provided Plaintiff with a 4-page list of search terms for the custodians to
run. Plaintiff does not believe that Defendants’ proposal is feasible or workable. Plaintiff’s proposal is as
follows:

Run these search terms

website, account, Katie, Jeremy, hack, index, deindex, “Google Search Console,” “Google Webmaster”

On these dates (these dates were proposed by Defendants)

March 7–13, 2022

(c) BCS does not intend to raise any undue burden objection with regard to outstanding document and data
production. Indeed, BCS is willing and able to complete review and production of all of the materials that have
been the subject of the IDC. BCS’s challenge is in completing the work by the current discovery cutoff. In
effect, then, BCS is requesting a modest extension of the discovery schedule.
 The Court may grant an extension of time upon a showing of good cause, which requires that the party
seeking an extension has exercised due diligence. Aardwolf Indus., LLC v. Abaco Machines USA, Inc.,
2017 WL 6888242, *3 (C.D. Cal. Sep. 7, 2017). The status of the parties’ productions demonstrate that
BCS has exercised diligence:
o To date, Defendants have produced 38,830 documents. Defendants are also continuing to make
productions, most recently on Friday, April 28, 2023.
o In the same time frame, BCS has produced 48,702 documents (25% more than
Defendants). BCS has completed review of approximately 60% of data collected to date, and
estimates that it will ultimately produce over 80,000 documents.
o In addition, Defendants submitted additional RFPs only three days ago, potentially increasing
the volume of documents that BCS must collect, review and produce.

3

151
Case 2:22-cv-02052-MAA Document 98-12 Filed 07/14/23 Page 5 of 5 Page ID #:3823
o Thus, BCS has exceeded Defendants’ pace with regard to productions, and, based on the parties’
representations, has a significantly larger scope of discovery (e.g., 12 individual custodians vs.
two).
 It is important to note that neither party has requested any extensions of the current discovery
deadline, which was set based upon our independent expectations about the volume of documents and
data to be reviewed and produced.
o Given these facts, and the simple reality of BCS’s limited resources, BCS feels that a 70 day
extension of time to complete discovery is not unreasonable. See, e.g., Fed. R. Civ. P. 26(b)(1)
(proportionality in discovery requires consideration of “the parties’ resources”); The Sedona
Conference, Commentary on Proportionality in Electronic Discovery, 18 Sedona Conf. J. 141,
(2017) (“[a] party’s resources, or lack thereof, may encompass any number of items
including…personnel and overall financial strength (or weakness)”). (In this regard, it is
important to note that, although BCS’s counsel is a large firm, it is nonetheless constrained by
its own resources, which are voluntary and limited.)

(d) Counsel diligently worked with the Veterans’ Administration, but was unable to obtain a declaration
from Vanessa Hughes’ physician before this email. Counsel has a call scheduled with the physician to finalize a
declaration on Tuesday, May 2 at 11:30 PT. Attached hereto is a declaration from counsel documenting the
timeline of their efforts to obtain a declaration, along with correspondence with the Veterans’ Administration.

(e) Attached is a calendar of availability for Vanessa Hughes, Jennifer Magill and Jesse Jensen. Bobby Cook
is no longer a volunteer with BCS and we understand has been providing information and speaking directly to
Defendants who may have additional information on his availability.

Respectfully,

Jason Lueddeke

Jason Taylor Lueddeke
Associate

T +1 310 595 3066 DLA Piper LLP (US)
jason.lueddeke@us.dlapiper.com 2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, CA 90067-4704

dlapiper.com

The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended
recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure,
dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this
communication in error, please reply to the sender and destroy all copies of the message. To contact us directly, send to
postmaster@dlapiper.com. Thank you.

This electronic transmission, which is sent by a law firm, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18
USC Secs. 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you
have received this electronic message in error, please notify the sender and delete the electronic message and any attachments. Any unauthorized disclosure,
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The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended
recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure,
dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this
communication in error, please reply to the sender and destroy all copies of the message. To contact us directly, send to
postmaster@dlapiper.com. Thank you.

4

152
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From: Adam Tate
To: Lueddeke, Jason; Bentz, Tamany
Cc: Brown, Michael P.; Grush, Benjamin; Adam J Schwartz; Dirk Julander; Helene P. Saller; Catherine Close
Subject: RE: 3MCW01-01 and 3MCW01-02: Depositions and Other Outstanding Discovery Issues
Date: Thursday, May 4, 2023 8:42:00 AM
Attachments: image001.jpg
image002.jpg
image003.jpg
image004.jpg

Following up on this. Are you really not going to tell me whether or not BCS has produced the
screen shots?

-Adam

From: Adam Tate
Sent: Wednesday, April 19, 2023 5:29 PM
To: ‘Lueddeke, Jason’ <Jason.Lueddeke@us.dlapiper.com>; ‘Bentz, Tamany’
<Tamany.Bentz@us.dlapiper.com>
Cc: ‘Brown, Michael P.’ <Michael.P.Brown@us.dlapiper.com>; ‘Grush, Benjamin’
<Benjamin.Grush@us.dlapiper.com>; ‘Adam J Schwartz’ <adam@ajschwartzlaw.com>; Dirk Julander
<doj@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>; Catherine Close <cac@jbblaw.com>
Subject: RE: 3MCW01-01 and 3MCW01-02: Depositions and Other Outstanding Discovery Issues

Correction, my memory was incorrect and Noelle actually testified that she took approximately 25
screen shots. If any of them have been produced other than those which have been deposition
exhibits, please let me know.

-Adam

From: Adam Tate
Sent: Wednesday, April 19, 2023 2:17 PM
To: Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>
Cc: Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Dirk Julander
<doj@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>; Catherine Close <cac@jbblaw.com>
Subject: RE: 3MCW01-01 and 3MCW01-02: Depositions and Other Outstanding Discovery Issues

Counsel,

In follow up from yesterday’s IDC: Noelle B. testified that she took approximately 20 screen shots
during her investigation in March 2022, but the only screen shots from that were produced are
marked as Exhibits 23-29. Likewise, Jesse J. testified that he also took screen shots in March 2022. I
am not aware of any screen shots from Jesse J. from March 2022 that have been produced.

If you believe that these screen shots have been produced, please point me to the bates numbers. If

154
Case 2:22-cv-02052-MAA Document 98-14 Filed 07/14/23 Page 3 of 3 Page ID #:3844

the screen shots have not been produced, provide us with an explanation as to why. Please get me
this information before the continued IDC on Monday.

Thanks,

Adam

From: Adam Tate
Sent: Friday, April 07, 2023 1:52 PM
To: Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>
Cc: Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Dirk Julander
<doj@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>; Catherine Close <cac@jbblaw.com>
Subject: RE: 3MCW01-01 and 3MCW01-02: Depositions and Other Outstanding Discovery Issues

Thanks, Jason.

I changed the neutral section back to the way I had it. I think it is neutral and I understand you
don’t, but I don’t think it is worth either of our time to argue over it. Feel free to tell the magistrate
that you suggested other language if it is important to you. I also changed the dates to include
4/10.

We will get these submitted.

Adam

From: Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>
Sent: Friday, April 07, 2023 1:45 PM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>
Cc: Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Dirk Julander
<doj@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>; Catherine Close <cac@jbblaw.com>
Subject: RE: 3MCW01-01 and 3MCW01-02: Depositions and Other Outstanding Discovery Issues

4/10 works for us but it seems like short notice for the Court.

Jason Taylor Lueddeke
Associate

T +1 310 595 3066
jason.lueddeke@us.dlapiper.com

DLA Piper LLP (US)

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EXHIBIT 15
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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

BREAKING CODE SILENCE, )
)
Plaintiff, )
Certified Copy
)
vs. ) Case No. 2:22-cv-02052
) SB-MAA
KATHERINE McNAMARA, et al., )
)
Defendants. )
______________________________________)

VIDEOTAPED VIDEOCONFERENCE DEPOSITION OF

WILLIAM BOYLES, JR.

Date and Time: Thursday, April 20, 2023
2:06 p.m. – 5:41 p.m.

Location: Remotely
(Via Videoconference)

Reporter: Christianne Lee Fong, CSR, CCRR
Certificate Number 7559

Job No. 26429

1

157
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1 maximum extent possible.

2 Q After Mr. Whiteley resigned, do you recall any

3 discussions about BCS filing a lawsuit against

4 Mr. Whiteley?

03:59 5 A Yes.

6 Q What do you recall about that?

7 A My recollection is that Ms. Hughes wanted to

8 find a reason to sue Mr. Whiteley, possibly in relation

9 to Mr. Scarpuzzi’s later resignation. And I seem to

03:59 10 recall that I — I advised against it, since we were

11 already engaged in one serious litigation matter.

12 Q So let’s break this down.

13 Do you specifically recall Mrs. Hughes saying

14 that she wanted to sue Jeremy Whiteley?

04:00 15 A Yes.

16 Q And did she say why?

17 A I recall that there was several instances where

18 she expressed that desire, and there seemed to be a — an

19 evolving list of reasons.

04:00 20 Q Did you form the belief that she wanted to sue

21 Mr. Whiteley because she was personally upset and angry

22 at him?

23 A Yes.

24 Q And was it your understanding based on what

04:00 25 happened that the reason Ms. Hughes wanted to sue

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1 Mr. Whiteley was because he had made complaints about

2 Ms. Hughes sexually harassing him?

3 A I believe that that was her motivation.

4 Q I apologize. I should have written it down; I

04:01 5 don’t think I did.

6 Did you use words to the effect that Ms. Hughes

7 was trying to come up with a reason to sue Mr. Whiteley?

8 A I mean, I think that’s — in my recollection,

9 that’s a fair assessment of the situation.

04:01 10 Q Did she ever ask other board members to try to

11 brainstorm a reason to sue Mr. Whiteley?

12 A I think that she came to us — I would

13 characterize it as she came to us and work-shopped

14 reasons that she had brainstormed.

04:01 15 Q And you told her that it was a bad idea to sue

16 Mr. Whiteley; correct?

17 A I wasn’t even particularly comfortable with the

18 lawsuit against Mrs. Filer, especially by that point.

19 So, beyond any validity to the lawsuit, I didn’t think

04:01 20 Breaking Code Silence — as a board member, I didn’t

21 think Breaking Code Silence was in a position to pursue

22 additional litigation.

23 Q Was there any other reason why you advised

24 against suing Mr. Whiteley?

04:02 25 A I didn’t think that the lawsuit was on good

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1 I’m just not sure where it ended up or what — you know,

2 what happened with it. But I do remember her filing it.

3 Q Do you recall what BCS did when it received this

4 complaint?

04:11 5 A To the best of my recollection, you know,

6 Ms. Hughes and Ms. Magill essentially investigated

7 themselves for this complaint and declared that they had

8 been found not culpable, or however they phrased it.

9 Q Do you know if anyone else was involved in that

04:11 10 investigation?

11 A I don’t recall specifically.

12 Q Do you recall if Ms. Hughes ever took any

13 actions against — strike that.

14 After Ms. McNamara made a formal complaint, do

04:11 15 you recall discussions by Ms. Hughes that she wanted to

16 sue Ms. McNamara?

17 A Yes, I do.

18 Q What do you recall about that?

19 A Ms. Hughes called me on the phone, and she was

04:12 20 very upset. Things had deteriorated to an extreme degree

21 at this point. This is near the point where Ms. McNamara

22 and I resigned, and we were in the middle of what I would

23 characterize as a last-ditch effort to save the

24 organization or kind of turn everything around.

04:12 25 There was some extremely contentious meetings

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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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1 STATE OF CALIFORNIA )
) SS.
2 COUNTY OF LOS ANGELES )
3 I, Christianne Lee Fong, CSR Number 7559, CCRR,
Certified Shorthand Reporter, hereby certify that:
4
I am authorized to administer oaths or
5 affirmations (Cal. Code of Civ. P. Sec. 2093(b) and Fed.
R. Civ. P. 28(a)).
6
The foregoing proceedings were taken before me
7 at the time and place therein set forth, at which time
the witness was duly sworn by me (Cal. Code Civ. Proc.
8 2025.330(a), 2025.540(a) and Fed. R. Civ. P. 30(f)(1)).
9 The foregoing pages contain a full, true and
accurate record of all proceedings and testimony (Cal.
10 Code Civ. Proc. 2025.540(a) and Fed. R. Civ. P.
30(f)(1)).
11
I am not a relative or employee of the parties,
12 nor financially interested in the action (Cal. Code Civ.
Proc. 2025.320(a)).
13
Before completion of the proceedings, review of
14 the transcript [ X ] was [ ] was not requested. If
requested, any changes made by the witness (and provided
15 to the reporter) during the period allowed, are appended
hereto (Fed. R. Civ. P. 30(e)).
16
I declare under penalty of perjury under the
17 laws of California that the foregoing is true and
correct.
18
Dated May 2, 2023.
19
20
21 _____
CERTIFIED S
22 IN AND FO
LOS ANGELES
23 STATE OF CALIFORNIA
24
25

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EXHIBIT 16
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1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
BREAKING CODE SILENCE, Case No. 2:22-cv-02052-MAA
11
Plaintiff, ORDER RE: JURY/COURT TRIAL
12
v. I. SCHEDULE
13
KATHERINE MCNAMARA et al., II. TRIAL PREPARATION
14
III. CONDUCT OF
15 Defendants. ATTORNEYS AND
PARTIES
16
17
18 I. SCHEDULE
19 The Scheduling Order governing this case is set forth in the Schedule of Pretrial
20 and Trial Dates chart below. If the parties wish to set additional dates, they may file a
21 separate Stipulation and Proposed Order. This may be especially appropriate in class
22 actions, patent cases, or cases for benefits under the Employee Retirement Income
23 Security Act of 1974 (“ERISA”).
24 Please refer to the Court’s Requirements and Standing Order (both available on
25 Magistrate Judge Maria A. Audero’s webpage: https://www.cacd.uscourts.gov/
26 honorable-maria-audero) for requirements for specific motions, discovery, certain
27 types of filings, courtesy copies, emailing signature items to chambers, alternative
28 dispute resolution, and other matters pertaining to all cases.

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1 JUDGE MARIA A. AUDERO
SCHEDULE OF PRETRIAL AND TRIAL DATES WORKSHEET
2
3 Pl(s)’ Date Def(s)’ Date Court Order
Trial and Final Pretrial Conference Dates
mm/dd/yyyy mm/dd/yyyy mm/dd/yyyy
4
10/17/2023
5 Check one: ☒ Jury Trial or ☐ Court Trial
☒ Jury Trial
(Tuesdays at 8:30 a.m., within 18 months after Complaint filed) 10/17/2023 10/17/2023
☐ Court Trial
Estimated Duration: __5–7_____ Days
6 5 days

7 Final Pretrial Conference (“FPTC”) [L.R. 16], Hearing on Motions
in Limine 09/26/2023 09/26/2023 10/05/2023
(Tuesdays at 10:00 a.m., at least 15 days before trial)
8
Event 1 Weeks
9 Note: Hearings shall be on Tuesdays at 10:00 A.M. Before
Pl(s)’ Date
mm/dd/yyyy
Def(s)’ Date
mm/dd/yyyy
Court Order
mm/dd/yyyy
Other dates can be any day of the week. FPTC
10 Last Date to Hear Motion to Amend Pleadings/Add Parties
03/03/2023 03/03/2023 01/09/2023[Tuesday] 11
Non-Expert Discovery Cut-Off
20 06/01/2023 06/01/2023 06/01/2023
(no later than deadline for filing dispositive motion)
12
Deadline to Complete Settlement Conference [L.R. 16-15] 06/30/2023
13 Select one: ☐ 1. Magistrate Judge (with Court approval)
☒ 2. Court’s ADR Panel 19 08/10/2023 08/10/2023
☐ 1. Mag. J.
☒ 2. Panel
☐ 3. Private Mediation ☐ 3. Private
14
Expert Disclosure (Initial) 04/03/2023 04/03/2023 04/03/2023
15 Expert Disclosure (Rebuttal) 05/03/2023 05/03/2023 05/03/2023
Expert Discovery Cut-Off 2 06/23/2023 06/23/2023 06/23/2023
16 16
Last Date to Hear Motions [Tuesday] 17 • Rule 56 Motion due at least 5 weeks before hearing
• Opposition due 2 weeks after Motion is filed
12 08/08/2023 08/08/2023 07/15/2023
• Reply due 1 week after Opposition is filed
18 Trial Filings (first round)
• Motions In Limine 07/28/2023 07/28/2023
19 • Memoranda of Contentions of Fact and Law [L.R. 16-4] (if dispositive (if dispositive
• Witness Lists [L.R. 16-5] motions are motions are
• Joint Exhibit List [L.R. 16-6.1] filed, then 30 filed, then 30
20 • Joint Status Report Regarding Settlement
3
days after days after
09/05/2023
• Proposed Findings of Fact and Conclusions of Law order on order on
21 [L.R. 52] (court trial only)
• Declarations containing Direct Testimony (court trial
dispositive
motion)
dispositive
motion)
only)
22 Trial Filings (second round)
• Oppositions to Motions in Limine
23 • Joint Proposed Final Pretrial Conference Order[L.R. 16-7] • Joint/Agreed Proposed Jury Instructions (jury trial only)
24 • Disputed Proposed Jury Instructions (jury trial only)
• Joint Proposed Verdict Forms (jury trial only)
2 09/12/2023 09/12/2023 09/12/2023
25 • Joint Proposed Statement of the Case (jury trial only)
• Proposed Additional Voir Dire Questions, if any (jury
trial only)
26 • Evidentiary Objections to Decls. of Direct Testimony
(court trial only)
27 1 The parties may seek dates for additional events by filing a separate Stipulation and Proposed Order. This is
often appropriate for class actions and patent and ERISA cases.
28 2 The parties may wish to consider cutting off expert discovery prior to the deadline for filing an MSJ.

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1 A. Deadlines for Motions.
2 All motions must be noticed to be heard on or before their respective deadlines.
3 All unserved parties will be dismissed at the time of the Final Pretrial Conference
4 (“FPTC”) pursuant to Rule 16-8.1 of the Local Civil Rules of the Central District of
5 California (“Local Rules”).1
6 B. Discovery, Discovery Cut-Off, and Discovery Disputes
7 1. E-Discovery Plan: The parties shall file a Joint E-Discovery Plan
8 addressing the following e-discovery matters (to the extent applicable) by no later
9 than August 12, 2022:
10 a. Preservation of electronically stored information (“ESI”)
i. What and whose devices need to be preserved
11 ii. Interdiction of any document destruction program
12 b. Search protocol for collection of ESI
i. Specific time period of the search
13
ii. Custodians of ESI: by name, job title, or job description
14 iii. Data sources, including list of systems that contain ESI
15 other than custodian email accounts (e.g., HR, payroll,
etc.)
16 iv. Search terms
17 v. Filters to identify non-discoverable information
18 vi. Quality control methods to evaluate whether search
results are missing ESI or contain irrelevant materials
19 c. ESI data sources not reasonably accessible and their
20 preservation
d. Proportionality and costs of ESI discovery
21
e. Phasing of ESI discovery
22 i. Sources of information in each phase
23 ii. Custodians in each phase
iii. Temporal restrictions in each phase
24 iv. Search terms in each phase
25 ///
26
27
1
The Local Rules are available on the Court’s website:
28 https://www.cacd.uscourts.gov/court-procedures/local-rules.

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1 f. ESI production
2 i. Production format
ii. Metadata fields to be produced
3
g. Privilege handling
4 h. Forensic Examination Protocol for devices to be examined
5 under Rule 34, if any, including timeline

6 To the extent the parties do not agree on a plan regarding any of these issues,
7 they are to note such disagreement in the Joint E-Discovery Plan. The Court will set
8 an informal discovery conference to address any issues and to assist the parties in
9 finalizing the Joint E-Discovery Plan that will govern e-discovery in the case.
10 2. Discovery Cut-off: The cut-off date for discovery is not the date
11 by which discovery requests must be served; it is the date by which all discovery,
12 including all hearings on any related motions, must be completed. Thus, written
13 discovery must be served, and depositions must begin, sufficiently in advance of the
14 discovery cut-off date to permit the discovering party enough time to challenge via
15 motion practice responses deemed to be deficient. Given the requirements to meet
16 and confer and to give notice, in most cases a planned motion to compel must be
17 discussed with opposing counsel at least six (6) weeks before the cut-off. The Court
18 will not approve stipulations between counsel that permit responses to be served after
19 the cut-off date, except in extraordinary circumstances.
20 3. Expert Discovery: All expert disclosures must be made in writing.
21 The parties should begin expert discovery shortly after the initial designation of
22 experts. The FPTC and trial dates will not be continued merely because expert
23 discovery is not completed. Failure to comply with these or any other orders
24 concerning expert discovery may result in the expert being excluded as a witness.
25 4. Discovery Disputes: Counsel must use best efforts to resolve
26 discovery problems among themselves in a courteous, reasonable, and professional
27 manner. Counsel must adhere to the Civility and Professionalism Guidelines at
28

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1 http://www.cacd.uscourts.gov/attorneys/admissions/civility-and-professionalism-
2 guidelines.
3 5. Discovery Motions: Any motion challenging the adequacy of
4 discovery responses must be filed, served, and calendared sufficiently in advance of
5 the discovery cut-off date to permit the responses to be obtained before that date if the
6 motion is granted.
7 No party may file a discovery motion until it has complied with Judge Audero’s
8 mandatory procedure regarding a pre-motion telephonic discovery conference, as set
9 forth in Judge Audero’s Requirements. Any discovery motion filed without
10 compliance with Judge Audero’s discovery dispute resolution procedures, or leave of
11 the Court, will be stricken. Please see Judge Audero’s Requirements and the Standing
12 Order for specific instructions regarding discovery motions.
13 C. Law and Motion and Local Rule 7-3
14 The Court reminds the parties of their obligation under Local Rule 7-3 to meet
15 and confer to attempt to resolve disputes before filing a motion. This Court also
16 requires the parties to meet and confer on any other request for relief (except those
17 identified in Local Rules 7-3 and 16-12).
18 Please see the Standing Order for specific instructions regarding Motions to
19 Dismiss, Motions to Amend, Motions for Summary Judgment, and other requests.
20 D. Settlement Conference/Alternative Dispute Resolution Procedures
21 Pursuant to Local Rule 16-15, the parties in every case must participate in a
22 Settlement Conference or Alternative Dispute Resolution (“ADR”) Procedure. The
23 Scheduling Order indicates the procedure the parties shall use. If the parties prefer an
24 ADR procedure other than the one ordered by the Court, they shall file a Stipulation
25 and Proposed Order. This request will not necessarily be granted. Counsel must
26 complete a Settlement Conference or ADR Procedure no later than the date set by the
27 Court. No case will proceed to trial unless all parties, including the principals of all
28 ///

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1 corporate parties, have appeared personally at a Settlement Conference or ADR
2 Procedure.
3 Counsel shall file a Joint Report regarding the outcome of settlement
4 discussions, the likelihood of possible further discussions, and any help the Court may
5 provide with regard to settlement negotiations, no later than seven (7) days after the
6 Settlement Conference or ADR Procedure.
7 If settlement is reached, it must be reported immediately to the Courtroom
8 Deputy Clerk (“CRD”) as required by Local Rule 16-15.7 regardless of the day or
9 time settlement is reached.
10 Failure to comply with these notification requirements will cause counsel/
11 parties to be charged for the costs related to processing jurors and may result in the
12 imposition of sanctions on counsel for one or more parties, their clients, or both.
13 E. Final Pretrial Conference/Proposed Final Pretrial Conference Order
14 The Court has set a FPTC pursuant to Federal Rule of Civil Procedure (“Rule”)
15 16 and Local Rule 16-8. THE COURT REQUIRES STRICT COMPLIANCE
16 WITH RULES 16 AND 26, AND LOCAL RULE 16. Each party appearing in this
17 action must be represented at the FPTC by the lead trial counsel for that party.
18 Counsel must be prepared to discuss streamlining the trial, including presentation of
19 testimony by deposition excerpts or summaries, time limits, stipulations as to
20 undisputed facts, and qualification of experts by admitted resumes.
21 The parties must file a Proposed Final Pretrial Conference Order (“Proposed
22 FPTCO”) fourteen (14) days before the FPTC. The parties must adhere to this
23 deadline so chambers can prepare. The form of the Proposed FPTCO shall be in the
24 form set forth in Appendix A to the Local Rules.
25 The parties shall email the Proposed FPTCO in Microsoft Word format to
26 MAA_Chambers@cacd.uscourts.gov.
27 ///
28 ///

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1 II. TRIAL PREPARATION
2 THE PARTIES MUST STRICTLY COMPLY WITH LOCAL RULE 16.
3 Please review Local Rule 16-2. Pursuant to Local Rule 16-2, lead trial counsel for
4 each party are required to meet and confer in person forty (40) days in advance to
5 prepare for the FPTC. This Order sets forth some requirements different from or in
6 addition to those set out in Local Rule 16. The Court may take the FPTC off calendar
7 or impose other sanctions for failure to comply with these requirements.
8 A. Schedule for Filing Pretrial Documents for Jury and Court Trials
9 Copies of all pretrial documents shall be delivered to the Court “binder-ready”
10 (three (3)-hole punched on the left side, without blue-backs, and stapled only in the
11 top left corner). Except for motions in limine, oppositions, the Joint Status Report
12 Regarding Settlement, and Declarations containing direct testimony, Counsel shall
13 email all of the below pretrial documents, including any amended documents, in
14 Microsoft Word format to MAA_Chambers@cacd.uscourts.gov.
15 The schedule for filing pretrial documents is as follows:
16  At least twenty-one (21) days before the FPTC:
17 • Motions in Limine
18 • Memoranda of Contentions of Fact and Law
19 • Witness Lists
20 • Joint Exhibit List
21 • Joint Status Report Regarding Settlement
22 • Proposed Findings of Fact and Conclusions of Law (court trial only)
23 • Declarations containing Direct Testimony (court trial only)
24  At least fourteen (14) days before the FPTC:
25 • Oppositions to Motions in Limine
26 • Joint Proposed FPTCO
27 • Joint/Agreed Proposed Jury Instructions (jury trial only)
28 • Disputed Proposed Jury Instructions (jury trial only)

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1 • Joint Proposed Verdict Forms (jury trial only)
2 • Joint Statement of the Case (jury trial only)
3 • Proposed Additional Voir Dire Questions, if any (jury trial only)
4 • Evidentiary Objections to Declarations of Direct Testimony (court
5 trial only)
6 1. Motions in Limine
7 No side may file more than five (5) motions in limine without leave of court.
8 Motions in limine will be heard and ruled on at the FPTC. The Court may rule
9 on motions in limine orally only instead of in writing. All motions in limine must be
10 filed at least twenty-one (21) days before the FPTC; oppositions must be filed at least
11 fourteen (14) days before the FPTC; there will be no replies. Motions in limine and
12 oppositions may not exceed ten (10) pages in length.
13 Before filing a motion in limine, counsel must meet and confer to determine
14 whether opposing counsel intends to introduce the disputed evidence and to attempt to
15 reach an agreement that would obviate the motion. Motions in limine should address
16 specific issues (e.g., not “to exclude all hearsay”). Motions in limine should not be
17 disguised motions for summary adjudication of issues.
18 2. Joint Witness List
19 Lead trial counsel shall meet and confer at least twenty-one (21) calendar days
20 before the FPTC to discuss and seek to agree, to the extent possible, on witnesses. A
21 Joint Witness List shall be prepared in compliance with Local Rule 16-5 and shall be
22 filed no later than fourteen (14) calendar days prior to the FPTC. Counsel shall
23 submit the names of the witnesses in the order that they are expected to testify, and
24 will provide, to the extent possible, an accurate estimate of the time needed for each
25 witness for direct, cross, redirect and re-cross. Counsel will also provide a brief
26 summary of each witness’ testimony. If more than one witness is offered on the same
27 subject, the summary should be sufficiently detailed to allow the Court to determine if
28 the testimony is cumulative. Any party objecting to a witness must submit a short

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1 statement explaining the basis for their objection; the proposing party must submit a
2 short statement responding to the opposing party’s position.
3 Counsel shall set forth the information about the amount of time that is
4 expected for the testimony of each witness on a jointly-prepared document with five
5 columns: (i) name of the witness; (ii) estimated time for direct examination (in hours,
6 with portions thereof stated in decimal form, e.g., “1.5 hours,” if the estimate is for
7 one hour and 30 minutes); (iii) estimated time for cross-examination; (iv) estimated
8 time for re-direct examination; and (v) total time for the witness. At the bottom of
9 each page the total time for all witnesses on that page shall be stated, with the grand
10 total of all time stated on the final page of the chart.
11 At the time of trial, counsel shall provide three (3) copies of the Witness List in
12 the order in which the witnesses will be called to testify and three (3) copies of the
13 Witness List in alphabetical order.
14 3. Joint Exhibit List
15 Lead trial counsel shall meet and confer at least twenty-one (21) calendar days
16 before the FPTC to discuss and seek to agree, to the extent possible, on issues
17 including foundation and admissibility of proposed exhibits. The parties shall file a
18 Joint Exhibit List fourteen (14) days before the FPTC in compliance with the example
19 below and Local Rule 16-6.
20
JOINT EXHIBIT LIST
21 Case Name:
22 Case Number:
Ex. No. Description Stipulate to Stipulate to Objection Response
23 Authenticity Admissibility
24
25 4. Jury Instructions (jury trial only)
26 Jury instructions must be filed no later than fourteen (14) days prior to the
27 FPTC. The parties shall make every attempt to agree upon jury instructions before
28 submitting proposals to the Court. The Court expects counsel to agree on the

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1 substantial majority of jury instructions, particularly when pattern or model
2 instructions provide a statement of applicable law. The parties shall meet and
3 confer on jury instructions according to the following schedule:
4 • Twenty-eight (28) days before FPTC: Counsel shall exchange proposed jury
5 instructions (general and special);
6 • Twenty-one (21) days before FPTC: Counsel shall exchange any objections to
7 the proposed instructions;
8 • Until fourteen (14) days before FPTC: Counsel shall meet and confer with the
9 goal of reaching an agreement on one set of Joint/Agreed Jury Instructions;
10 • Fourteen (14) days before FPTC: Counsel shall file their (1) Joint/Agreed
11 Proposed Jury Instructions and their (2) Disputed Jury Instructions.
12 If the parties disagree on any proposed jury instructions, they shall file: (i) one
13 (1) set of Joint/Agreed Proposed Jury Instructions to which all parties agree; and
14 (ii) one (1) set of Disputed Jury Instructions, which shall include a “redline” of any
15 disputed language and/or the factual or legal basis for each party’s position as to each
16 disputed instruction. Where appropriate, the disputed instructions shall be organized
17 by subject, so that instructions that address the same or similar issues are presented
18 sequentially. If there are excessive or frivolous disagreements over jury instructions
19 or the special verdict form, the Court will order the parties to further meet and confer
20 before trial and/or during trial until they substantially narrow their disagreements.
21 Sources: When the Manual of Model Jury Instructions for the Ninth
22 Circuit provides an applicable jury instruction, the parties should submit the most
23 recent version, modified and supplemented to fit the circumstances of this case.
24 Where California law applies, counsel should use the current edition of the Judicial
25 Council of California Civil Jury Instructions (“CACI”). If neither applies, counsel
26 should consult the current edition of O’Malley, et al., Federal Jury Practice and
27 Instructions. Counsel may submit alternatives to these instructions only if there is a
28 ///

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1 reasoned argument that they do not properly state the law or that they are incomplete.
2 The Court seldom if ever gives instructions derived solely from cases.
3 Format: The Proposed Instructions shall be divided into four sections:
4 (I) instructions after the jury has been empaneled; (II) instructions in the course of
5 trial; and (III) substantive instructions. Each requested instruction shall: (1) cite the
6 authority or source of the instruction, (2) be set forth in full, (3) be on a separate page,
7 (4) be numbered, (5) cover only one subject or principle of law, and (6) not repeat
8 principles of law contained in any other requested instruction. If a standard
9 instruction has blanks or offers options (i.e. “he/she”), the parties must fill in the
10 blanks or make the appropriate selections in their proposed instructions.
11 Index: The Proposed Instructions must have an index that includes the
12 following for each instruction, as illustrated in the example below:
13 • the number of the instruction;
14 • the title of the instruction;
15 • the source of the instruction and any relevant case citations; and
16 • the page number of the instruction.
17 Example:
18 Instruction
Number Title Source Page Number
19 1 Trademark-Defined 9th Cir. 8.5.1 1
20 (15.U.S.C. § 1127)

21 During the trial and before closing argument, the Court will meet with counsel
22 to settle the instructions, and counsel will have an opportunity to make a further
23 record concerning their objections.
24 5. Joint Verdict Forms (jury trial only)
25 The parties shall make every attempt to agree upon a verdict form before
26 submitting proposals to the Court. Counsel shall file a proposed verdict form(s) no
27 later than fourteen (14) days before the FPTC. If the parties are unable to agree on a
28 verdict form, the parties shall file one document titled “Competing Verdict Forms”

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1 which shall include: (i) the parties’ respective proposed verdict forms; (ii) a “redline”
2 of any disputed language; and (iii) the factual or legal basis for each party’s respective
3 position if the entire form is being disputed.
4 6. Joint Statement of the Case (jury trial only)
5 No later than fourteen (14) days before the FPTC, counsel must file a Joint
6 Statement of the Case for the Court to read to the panel of prospective jurors before
7 commencement of voir dire. This should be a brief and neutral statement no more
8 than one page long.
9 7. Voir Dire (jury trial only)
10 The Court will conduct the voir dire. The Court asks prospective jurors basic
11 questions (jurors’ place of residence, employment, whether familiar with the parties or
12 counsel, etc.), and may ask additional case-specific questions. No later than fourteen
13 (14) days before the FPTC, counsel may, but are not required to, file proposed case-
14 specific voir dire questions for the Court’s consideration.
15 8. Proposed Findings of Fact and Conclusions of Law (court trial
16 only)
17 For any trial requiring findings of fact and conclusions of law, counsel for each
18 party shall, no later than twenty-one (21) days before the FPTC, file and serve on
19 opposing counsel its Proposed Findings of Fact and Conclusions of Law in the format
20 specified in Local Rule 52-3.
21 The parties may submit Supplemental Proposed Findings of Fact and
22 Conclusions of Law during the trial. Once trial concludes, the Court may order the
23 parties to file Revised Proposed Findings of Fact and Conclusions of Law.
24 9. Declarations for Direct Testimony (court trial only)
25 Unless relieved from this requirement, each party shall, at least twenty-one (21)
26 days before the FPTC, file declarations containing the direct testimony of each
27 witness whom that party intends to call at trial. Each party shall file any evidentiary
28 objections to the declaration(s) submitted by any other party no later than fourteen

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1 (14) days before the FPTC. Such objections shall be submitted in the following three-
2 column format: (i) the left column should contain a verbatim quote of each statement
3 objected to (including page and line number); (ii) the middle column should set forth a
4 concise objection (e.g., hearsay, lacks foundation, etc.) with a citation to the Federal
5 Rules of Evidence or, where applicable, a case citation; and (iii) the right column
6 should provide space for the court’s ruling on the objection. The Court anticipates
7 issuing its ruling on the objections the same date as the FPTC.
8 B. Trial Exhibits
9 Trial exhibits that consist of documents must be submitted to the Court in three-
10 ring binders. Counsel shall submit to the Court one (1) original set of exhibit
11 binders, and two (2) copies: the original set shall be for the witnesses, and the two
12 (2) copies are for the Court. All exhibits must be placed in three-ring binders indexed
13 by exhibit number with tabs or dividers on the right side. Exhibits shall be numbered
14 1, 2, 3, etc., not 1.1, 1.2, etc. The defendant’s exhibit numbers shall not duplicate
15 plaintiff’s numbers. For all three (3) sets of binders, the spine of each binder shall
16 indicate the volume number and the range of exhibit numbers included in the volume.
17 • The original set of exhibits shall have official exhibit tags (yellow tags for
18 plaintiff’s exhibits, and blue tags for defendant’s exhibits) affixed to the
19 front upper right-hand corner of the exhibit, with the case number, case
20 name, and exhibit number stated on each tag. Tags may be obtained from
21 the Clerk’s Office, or counsel may print their own exhibit tags using Forms
22 G-14A and G-14B on the “Court Forms” section of the Court’s website.
23 • The two (2) sets of copies of the exhibits shall not have official exhibit tags
24 but must be indexed with tabs or dividers on the right side.
25 Counsel will review the exhibit list and the exhibit binders with the CRD before
26 the admitted exhibits are given to the jury.
27 The Court provides audio/visual equipment for use during trial. More
28 information is available at http://www.cacd.uscourts.gov/clerk-services/courtroom-

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1 technology. The Court does not permit exhibits to be “published” by passing them up
2 and down the jury box. Exhibits may be displayed briefly using the screens in the
3 courtroom, unless the process becomes too time-consuming.
4 C. Materials to Present on First Day of Trial
5 Counsel must present these materials to the CRD on the first day of trial:
6 1. The three (3) sets of exhibit binders—one (1) original and two
7 (2) copies—described above.
8 2. Any deposition transcripts to be used at trial, either as evidence
9 or for impeachment. These lodged depositions are for the Court’s
10 use; counsel must use their own copies during trial.
11 D. Court Reporter
12 Any party requesting special court reporter services for any hearing (i.e., real
13 time transmission, daily transcripts) shall notify the court reporter at least fourteen
14 (14) days before the hearing date.
15 E. Jury Trial
16 On the first day of trial, court will commence at 8:30 a.m. and conclude at
17 approximately 4:30 p.m., with a one (1)-hour lunch break. Counsel must appear at
18 8:30 a.m. to discuss preliminary matters with the Court. The Court will call a jury
19 panel only when it is satisfied that the matter is ready for trial. Jury selection usually
20 takes only a few hours. Counsel should be prepared to proceed with opening
21 statements and witness examination immediately after jury selection.
22 Trials generally begin on Tuesdays. Trial days are generally Tuesday through
23 Friday, from 9:00 a.m. to approximately 4:30 p.m., with two fifteen (15)-minute
24 breaks and a one (1)-hour lunch break.
25 ///
26 ///
27 ///
28 ///

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1 III. CONDUCT OF ATTORNEYS AND PARTIES
2 A. Meeting and Conferring Throughout Trial
3 The parties must meet and confer on an ongoing basis throughout trial on all
4 issues as they arise. The Court will not resolve any issue during trial unless and until
5 the parties have attempted to resolve it themselves. This rule is strictly enforced.
6 B. Opening Statements, Examining Witnesses, and Summation
7 Counsel must use the lectern. Counsel must not consume time by writing out
8 words, drawing charts or diagrams, etc. Counsel may prepare such materials in
9 advance. The Court will establish and enforce time limits for opening statements and
10 closing arguments, and for examination of witnesses.
11 C. Objections to Questions
12 Counsel must not use objections to make a speech, recapitulate testimony, or
13 attempt to guide the witness.
14 When objecting, counsel must rise to state the objection and state only that
15 counsel objects and the legal ground of objection. If counsel wishes to argue an
16 objection further, counsel must ask for permission to do so.
17 D. General Decorum
18 1. Counsel must not approach the CRD or the witness box without
19 specific permission and must return to the lectern when the purpose for approaching
20 has been accomplished.
21 2. Counsel must rise when addressing the Court, and when the Court
22 or the jury enters or leaves the courtroom, unless directed otherwise.
23 3. Counsel must address all remarks to the Court. Counsel must not
24 address the CRD, the court reporter, persons in the audience, or opposing counsel.
25 Any request to re-read questions or answers shall be addressed to the Court. Counsel
26 must ask the Court’s permission to speak with opposing counsel.
27 4. Counsel must not offer a stipulation unless counsel have conferred
28 with opposing counsel and have verified that the stipulation will be acceptable.

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1 5. While Court is in session, counsel must not leave counsel table to
2 confer with any person in the back of the courtroom without the Court’s permission.
3 6. Counsel must not make facial expressions, nod, shake their heads,
4 comment, or otherwise exhibit in any way any agreement, disagreement, or other
5 opinion or belief concerning the testimony of a witness. Counsel shall admonish their
6 clients and witnesses not to engage in such conduct.
7 7. Counsel must never talk to jurors at all, and must not talk to co-
8 counsel, opposing counsel, witnesses, or clients where the conversation can be
9 overheard by jurors. Counsel should admonish their clients and witnesses to avoid
10 such conduct.
11 8. Where a party has more than one lawyer, only one may conduct
12 the direct or cross-examination of a particular witness, or make objections as to that
13 witness.
14 E. Promptness of Counsel and Witnesses
15 1. Promptness is expected from counsel and witnesses. Once counsel
16 are engaged in trial, this trial is counsel’s first priority. The Court will not delay the
17 trial or inconvenience jurors.
18 2. If a witness was on the stand at a recess or adjournment, counsel
19 who called the witness shall ensure the witness is back on the stand and ready to
20 proceed when trial resumes.
21 3. Counsel must notify the CRD in advance if any witness should be
22 accommodated based on a disability or for other reasons.
23 4. No presenting party may be without witnesses. If a party’s
24 remaining witnesses are not immediately available and there is more than a brief
25 delay, the Court may deem that party to have rested.
26 5. The Court attempts to cooperate with professional witnesses and
27 generally accommodates them by permitting them to be called out of sequence.
28 ///

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1 Counsel must anticipate any such possibility and discuss it with opposing counsel. If
2 there is an objection, counsel must confer with the Court in advance.
3 F. Exhibits
4 1. Each counsel must keep counsel’s own list of exhibits and must
5 note when each has been admitted into evidence.
6 2. Each counsel is responsible for any exhibits that counsel secures
7 from the CRD and must return them before leaving the courtroom at the end of the
8 session.
9 3. An exhibit not previously marked must, at the time of its first
10 mention, be accompanied by a request that it be marked for identification. Counsel
11 must show a new exhibit to opposing counsel before the court session in which it is
12 mentioned.
13 4. Counsel must advise the CRD of any agreements with respect to
14 the proposed exhibits and as to those exhibits that may be received without further
15 motion to admit.
16 5. When referring to an exhibit, counsel must refer to its exhibit
17 number. Witnesses should be asked to do the same.
18 6. Counsel may not ask witnesses to draw charts or diagrams, or ask
19 the Court’s permission for a witness to do so. Any graphic aids must be fully
20 prepared before the court session starts.
21 G. Depositions
22 1. In using depositions of an adverse party for impeachment, counsel
23 may adhere to either one of the following procedures:
24 a. If counsel wishes to read the questions and answers as
25 alleged impeachment and ask the witness no further questions on that subject, counsel
26 shall first state the page and line where the reading begins and the page and line where
27 the reading ends, and allow time for any objection. Counsel may then read the
28 portions of the deposition into the record.

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1 b. If counsel wishes to ask the witness further questions on the
2 subject matter, the deposition shall be placed in front of the witness and the witness
3 told to read the relevant pages and lines silently. Then counsel may either ask the
4 witness further questions on the matter and thereafter read the quotations, or read the
5 ///
6 quotations and thereafter ask further questions. Counsel should have an extra copy of
7 the deposition for this purpose.
8 2. Where a witness is absent and the witness’s testimony is offered by
9 deposition, counsel may (a) have a reader occupy the witness chair and read the
10 testimony of the witness while the examining lawyer asks the questions, or (b) have
11 counsel read both the questions and the answers.
12 H. Using Numerous Answers to Interrogatories and Requests for
13 Admission
14 Whenever counsel expects to offer a group of answers to interrogatories or
15 requests for admissions extracted from one or more lengthy documents, counsel
16 should prepare a new document listing each question and answer and identifying the
17 document from which it has been extracted. Copies of this new document should be
18 given to the Court and opposing counsel.
19 I. Advance Notice of Unusual or Difficult Issues
20 If any counsel anticipate that a difficult question of law or evidence will
21 necessitate legal argument requiring research or briefing, counsel must give the Court
22 advance notice. Counsel are directed to notify the CRD at the day’s adjournment if an
23 unexpected legal issue arises that could not have been foreseen and addressed in
24 advance. Counsel must also advise the CRD at the end of each trial day of any issues
25 that must be addressed outside the presence of the jury so that there is no interruption
26 of the trial. THE COURT WILL NOT KEEP JURORS WAITING.
27 ///
28 ///

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1 Parties appearing pro se must comply with the Federal Rules of Civil
2 Procedure and the Local Rules. See Local Rules 1-3 and 83-2.2.3.
3
4 IT IS SO ORDERED.
5
6 Dated: July 14, 2022 _______________________________________
HONORABLE MARIA A. AUDERO
7
UNITED STATES MAGISTRATE JUDGE
8
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Case 2:22-cv-02052-MAA Document 98-19 Filed 07/14/23 Page 1 of 23 Page ID #:3878

EXHIBIT 17
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1 TAMANY J, VINSON BENTZ (SBN 258600)
tamany.bentz@us.dlapiper.com
2 JASON T. LUEDDEKE (SBN 279242)
jason.lueddeke@us.dlapiper.com
3 BENJAMIN GRUSH (SBN 335550)
benjamin.grush@us.dlapiper.com
4 DLA PIPER LLP (US)
2000 Avenue of the Stars
5 Suite 400 North Tower
Los Angeles, California 90067-4735
6 Telephone: 310.595.3000
Facsimile: 310.595.3300
7
Attorneys for Plaintiff
8 BREAKING CODE SILENCE
9 DIRK O. JULANDER (SBN 132313)
doj@jbblaw.com
10 CATHERINE A. CLOSE (SBN 198549)
cac@jbblaw.com
11 M. ADAM TATE (SBN 280017)
adam@jbblaw.com
12 JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
13 Irvine, California 92618
Telephone: 949.477.2100
14 Facsimile: 949.477.6355
15 Attorneys for Defendants
KATHERINE MCNAMARA and
16 JEREMY WHITELEY
17
UNITED STATES DISTRICT COURT
18
CENTRAL DISTRICT OF CALIFORNIA
19
20 BREAKING CODE SILENCE, a Case No. 2:22-cv-02052-MAA
21 California 501(c)(3) nonprofit,

22 Plaintiff, STIPULATED ORDER RE:
AMENDED JOINT
23 v. E-DISCOVERY PLAN AND
PROTOCOL FOR DISCOVERY OF
24 KATHERINE MCNAMARA, an ELECTRONICALLY STORED
INFORMATION
25 individual; JEREMY WHITELEY, an
individual; and DOES 1 through 50,
26 inclusive,
27
Defendants.
28
DLA P IPER LLP (US) 1
WW W.DLAPI PE R.CO M STIPULATED ORDER RE: AMENDED JOINT E-DISCOVERY PLAN AND
PROTOCOL FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION
WEST/299944525
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1 1. INTRODUCTION
2 Plaintiff and Defendants (collectively, the “Parties”) mutually agree to the
3 following protocol (“Protocol”) regarding the discovery of electronically stored
4 information (“ESI”) and hard copy documents in the above-captioned case. This
5 Protocol is intended to provide for effective and efficient discovery in accordance
6 with the Federal Rules of Civil Procedure. Nothing in this Protocol alters either
7 Party’s rights, obligations, and responsibilities under the Federal Rules of Civil
8 Procedure.
9 2. DEFINITIONS
10 2.1 Action: the above captioned matter, Breaking Code Silence vs.
11 Katherine McNamara et al., Case No. 2:22-cv-02052-MAA (C.D. Cal.).
12 2.2 Document: a collection of pages, or a digital file, constituting a
13 logical single communication of information produced or inspected as a single
14 record pursuant to Federal Rules of Civil Procedure 26 and 34, including hard copy
15 and ESI.
16 2.3 Electronically Stored Information or “ESI”: any information or
17 data that is originally created, manipulated, or used, communicated, and stored in
18 digital format. This definition expressly excludes information that was prepared or
19 previously available in hard copy but which converted and now maintained in digital
20 format for reasons of business convenience or as otherwise may have been
21 necessary.
22 2.4 Native Format: the associated file format defined by the original
23 application with which an electronic file was created.
24 2.4.1 Native File: ESI that is stored and produced in the file
25 format in which it was originally created, such as .DOCX, .XLSX, .PPTX, etc., as
26 opposed to a Processed File.
27
28
DLA P IPER LLP (US) 2
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PROTOCOL FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION
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1 2.4.2 Processed File: a Native File that has been processed into
2 a .PDF file, a .TIFF file, a .CSV file, a .TXT file, or a similar format used for
3 document productions allowing for searchable ESI.
4 2.5 Hard Copy Document: any Document that, in the usual course
5 of business, is kept in physical or paper form, as opposed to as ESI.
6 2.6 Metadata: (i) all information embedded in or associated with a
7 Native File that is not ordinarily viewable or printable from the application that
8 generated, edited, or modified such Native File which describes the characteristics,
9 origins, usage or validity of the electronic file or (ii) all information generated
10 automatically by the operation of a computer or other information technology
11 system when a Native File is created, modified, transmitted, deleted or otherwise
12 manipulated by a user of such system.
13 2.7 Bates Number: a page level unique alpha-numeric identifier
14 associated with every document produced, including physical sheets of paper,
15 electronically stored TIFF images, PDF pages, or other tangible thing, consisting of
16 (1) an alphabetic portion identifying the Producing Party and/or other characteristics
17 of the production; and (2) a numeric portion incremented according to a scheme
18 defined at the Producing Party’s discretion to ensure that the alphanumeric identifier
19 for each page of physical sheets of paper, electronically stored TIFF images, or
20 other tangible thing is unique. Parties producing Documents as Native Files will
21 assign a single Bates number to the Native File, in sequence with the other numbers
22 in the production of Documents.
23 2.8 Extracted Text: the text extracted from a Document, and
24 includes all header, footer, and document body information when available.
25 2.9 OCR Text: searchable text from a Document generated by
26 means of optical character recognition performed using appropriate software.
27 2.10 Load File: an electronic file containing information identifying a
28 set of paper-scanned images or Processed Files and indicating where individual
DLA P IPER LLP (US) 3
WW W.DLAPI PE R. CO M STIPULATED ORDER RE: AMENDED JOINT E-DISCOVERY PLAN AND
PROTOCOL FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION
WEST/299944525
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1 pages or files belong together as documents, including attachments, and where each
2 document begins and ends. A Load File should also contain data relevant to the
3 individual Documents, including extracted and user-created Metadata as required by
4 Exhibit A.
5 2.11 Forensic Copy or Clone: a bitsream image, i.e., an exact, bit-for-
6 bit copy of a digital file storage device, such as, without limitation, computer hard
7 drive, mobile device flash memory, USB drives, external hard disk drives, and any
8 other device that stores digital data, in which every bit of data is written onto a new
9 file storage device.
10 2.12 Discoverable Information: all documents and ESI that are
11 discoverable in this litigation pursuant to the Federal Rules of Civil Procedure.
12 2.13 Party: any party to this Action, including all its officers,
13 directors, employees, consultants, retained experts, and Outside Counsel (and their
14 support staffs).
15 2.14 Custodian: the person from whom a Document was collected.
16 2.15 Non-Custodial Sources: shared data repositories maintained in
17 the ordinary course of business and not necessarily associated with the individual
18 Custodian(s). Examples of Non-Custodial Sources may include, but are not limited
19 to, shared file cabinets, shared network drives or fileservers, electronic document
20 management systems, or databases.
21 2.16 Outside Counsel: the attorneys and employees of any external
22 law firm representing a Party to this Action.
23 2.17 Producing Party: a Party which is producing Discoverable
24 Information.
25 2.18 Receiving Party: a Party which is receiving Discoverable
26 Information.
27
28
DLA P IPER LLP (US) 4
WW W.DLAPI PE R. CO M STIPULATED ORDER RE: AMENDED JOINT E-DISCOVERY PLAN AND
PROTOCOL FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION
WEST/299944525
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1 2.19 Privileged Information: Documents or ESI protected from
2 disclosure by the attorney client privilege, work production protection, or other
3 applicable protections or privileges.
4 2.20 Sensitive Personal Identifying Information (“PII”): includes
5 information protected from disclosure by specific laws or standards as well as
6 sensitive personal information which is not likely to be relevant to the issues in this
7 matter, including:
8 2.20.1 Protected Health Information (“PHI”) includes
9 information protected from public disclosure by the Health Insurance Portability and
10 Accountability Act of 1996 (“HIPAA”), pursuant to Title 45, Chapter 164 of the
11 Code of Federal Regulations;
12 2.20.2 Payment Card Information (“PCI”) that identifies
13 payment card details, account numbers of individual customers; and
14 2.20.3 Social Security numbers, driver’s license number, tax
15 payer identification numbers, passport numbers, state-issued identification numbers,
16 financial account numbers, dates of birth, home address, personal mobile telephone
17 number, or personal email address.
18 3. PRESERVATION
19 3.1 What and Whose Devices. Each Party represents that it has
20 taken reasonable steps to preserve reasonably accessible sources of ESI with respect
21 to the Custodians set forth in paragraph 4.3 and the data sources set forth in
22 paragraph 4.4
23 3.2 Interdiction of any Document Destruction Program. To the
24 extent the Parties have not already done so, they agree to disable any automatic
25 deletion program with respect to discoverable sources of ESI.
26 3.3 Preservation Does Not Affect Discoverability or Claims of
27 Privilege. By preserving documents or ESI for the purposes of this Action, the
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1 Parties are not conceding that such material is discoverable, nor are they waiving
2 any claim of privilege.
3 4. SEARCH PROTOCOL
4 4.1 Production in Accordance with Federal Rules. The Parties agree
5 to identify, collect, and produce responsive documents and ESI in accordance with
6 the Federal Rules of Civil Procedure.
7 4.2 Date Range. The Parties agree that the applicable date range for
8 ESI searches is February 1, 2020 through the present.
9 4.3 Custodians. Plaintiff designates Vanessa Hughes, Jennifer
10 Magill, Katherine McNamara, and Jeremy Whiteley as Custodians whose ESI it will
11 search. Defendants designate Breaking Code Silence (“BCS”), Vanessa Hughes,
12 Jennifer Magill, Jesse Jensen, Noelle Beauregard, Lenore Silverman, Eugene
13 Furnace, the entire BCS Board of Directors, Bobby Cook, Megan Hurwitt, Arianna
14 Conroyd, Shelby Kirchoff and anyone else who had administrative permissions on
15 the website or any of BCS’s accounts or systems at the time the alleged hacking
16 took place.
17 4.4 Data Sources. The Parties agree that the data sources include the
18 following, so long as they are in the possession, custody, or control of any of the
19 Parties and reasonably accessible: E-mail accounts, cell phones, Facebook
20 accounts, Twitter accounts, Skype accounts, and Slack accounts, Google Drives, cell
21 phones (including any backups of the cell phones and all personal and BCS-
22 controlled computing devices of Vanessa Hughes, Jennifer Magill, Jesse Jensen,
23 Bobby Cook, Katherine McNamara, and Jeremy Whiteley), text messages, Apple
24 Messages, computers, Zoom accounts, Hootsuite logs, Hootsuite audit data,
25 Hootsuite billing history, Instagram logs, Instagram audit history, PayPal audit logs,
26 Slack audit logs, server logs, Cloudways databases, server and audit and access logs
27 (including all backups of the Cloudways web server 90 days before and after the
28 alleged incidents), WordPress databases, server and audit and access logs (including
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1 all backups of the WordPress files 90 days before and after the alleged incidents),
2 WhatsApp chat logs, Telegram chat logs, Google admin audit logs, AdWords audit
3 logs, iCloud, Box.net, Google admin security logs, system logs, TikTok audit logs,
4 Facebook messages, Facebook audit logs for BCS page, YouTube audit logs, Signal
5 chatlogs and any other tech-based communications exchanged between the
6 custodians pertinent to this matter or the alleged hacking incident.
7 To the extent a Party determines that any source is outside its possession,
8 custody, or control or reasonably searchable and/or accessible, the Parties agree to
9 meet and confer regarding any such source, and if no agreement is reached, any
10 Party may submit the issue to the Court.
11 4.5 Searching ESI for Responsive Information. Each Producing
12 Party shall design and implement the industry standard and approved methods it
13 uses to identify, cull, and review its potentially responsive ESI based on its
14 knowledge and understanding of its own data, the facts and issues involved in the
15 Action, and the Receiving Party’s discovery requests. Before conducting a
16 document collection and review, the Parties will exchange the search terms they
17 intend to use to identify potentially relevant documents for production, and will
18 meet and confer regarding any requested revisions. The Producing Parties also have
19 the right to utilize predicative coding or technology assisted review, filters, email
20 threading, or other analytics to identify and review potentially responsive ESI to
21 identify relevant Documents. A Producing Party may also conduct a targeted
22 collection of sources likely to contain responsive materials (e.g., file folders on a
23 given hard drive). In the event one Party has a good faith belief the other Party has
24 violated this Order, the Parties agree to mutually disclose the methods used to
25 identify and cull potentially responsive ESI, including but not limited to search term
26 syntax, sources searched, predictive coding, technology assisted review or other
27 analytics.
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1 5. NOT REASONABLY ACCESSIBLE ESI
2 5.1 Not Reasonably Accessible ESI. The Parties need not preserve,
3 collect, produce, or identify on a privilege log the following categories of ESI for
4 this Action:
5 (a) With the exception of the Cloudways and WordPress server
6 backups, server logs, application logs and the other backups of data sources
7 identified in Section 4.4 above (to the extent they are reasonably accessible),
8 data stored in backup system for purposes of system recovery or information
9 recovery, including but not limited to, disaster recovery back up tapes,
10 continuity of operations systems, and data or system mirrors or shadows
11 except to the extent that such sources are known to be the only sources of
12 Discoverable Information;
13 (b) Common system and program files as defined by the NIST
14 library (which is commonly used by discovery vendors to exclude system and
15 program files from document review and production) need not be processed,
16 reviewed, or produced.
17 (c) Deleted, erased, or overwritten computer files, whether
18 fragmented or whole which were deleted in the regular course of business
19 before there was a duty to preserve ESI.
20 (d) Data stored in random access memory (“RAM”), cache memory,
21 or in temporary or cache files, includes internet history, web browser cache
22 and cookie files wherever located.
23 (e) Data stored on photocopiers, scanners, and fax machines;
24 (f) Server, system, or network logs, except as set forth in Section 4.4
25 or 5.1(a).
26 5.2 Other Types of ESI May Not Be Reasonably Accessible.
27 Nothing in this Protocol prevents any Party from asserting, in accordance with the
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1 Federal Rules of Civil Procedure, that other categories of ESI are not reasonably
2 accessible within the meaning of Rule 26(b)(2)(B).
3 6. PROPORTIONALITY
4 6.1 The Parties agree to take into account the proportionality
5 considerations addressed in Federal Rules of Civil Procedure for purposes of
6 preservation and production of ESI and hard copy documents in this Action. This
7 Protocol is not intended to expand the Parties’ obligations under Federal Rules of
8 Civil Procedure 1, 26, and 34.
9 6.2 The Parties agree to meet and confer regarding any
10 disagreements that arise as a result of the implementation of this Protocol.
11 7. PHASING
12 7.1 The Parties agree to phase ESI production as follows:
13 Phase I: The Parties will immediately produce all Hard Copy Documents
14 responsive to any Requests for Production of Documents previously propounded
15 prior to the date of this Stipulated Order.
16 Phase II: The Parties will produce, on a rolling basis, ESI from the data
17 sources and Custodians identified in paragraphs 4.3 and 4.4.
18 Phase III: To the extent that a Party requests that the other Party search
19 additional data sources or Custodians, the Parties agree to meet and confer regarding
20 any such request.
21 8. PRODUCTION
22 8.1 Production Format and Metadata. Where practicable, the Parties
23 shall produce documents and ESI, including metadata, according to the format
24 specified in Exhibit A, attached hereto. To the extent a Producing Party reasonably
25 expects production of specific documents or ESI in the format described in Exhibit
26 A will be impractical or unduly burdensome, the Parties will meet and confer in
27 good faith to attempt to agree on an acceptable format for production pursuant to
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1 Federal Rule of Civil Procedure 34(b)(2)(E). The Parties will transmit production
2 files digitally, via download from a password-protected file-store.
3 8.2 Privacy Redactions. Producing Parties may redact Protected
4 Personally Identifying Information from responsive Documents prior to production.
5 If Personally Identifying Information is redacted, the Producing Party will label the
6 redactions as “Redacted-PII.” Any Receiving Parties who receive Documents
7 including Protected Personally Identifying Information shall treat such documents as
8 Confidential pursuant to the Stipulated Protective Order entered in this matter.
9 8.3 Deduplication. Producing Parties will not remove duplicate ESI
10 from their respective productions.
11 8.4 Review and Production of Hard Copy Documents. Each
12 Producing Party is entitled to collect, scan, and review its hard copy documents
13 before producing only those documents which are responsive and not privileged or
14 subject to other protection in the document production format described in Exhibit
15 A.
16 9. PRIVILEGE
17 9.1 Non-Waiver. Pursuant to Fed. R. Evid. 502(d), the production of
18 a privileged or work-product-protected document, whether inadvertent or otherwise,
19 is not a waiver of privilege or protection from discovery in this case or in any other
20 federal or state proceeding. For example, the mere production of privileged or work-
21 product-protected documents in this case as part of a mass production is not itself a
22 waiver in this case or in any other federal or state proceeding.
23 9.2 Privilege Logs. The parties shall comply with the Federal Rules
24 of Civil Procedure regarding the production of privilege logs, as set forth more fully
25 below. With the exception of those materials described in paragraph 9.3 that need
26 not be logged, any document falling within the scope of any request for production
27 or subpoena that is withheld on the basis of a claim of privilege, work product, or
28 any other legal privilege is to be identified by the Producing Party in a privilege log,
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1 which the Producing Party shall produce in an electronic format (i.e., Excel format)
2 that allows text searching, sorting, and organization of data.
3 9.3 The parties may elect to produce a categorical privilege log, a
4 metadata privilege log, or a log in any other format, provided that the parties include
5 the information required by Fed. R. Civ. P. 26(b)(5) in a manner that will enable the
6 Receiving party to assess the claim.
7 9.4 No privilege log entries shall be required as to the following
8 categories of materials, and any applicable privilege or protection shall be preserved
9 even if such materials are not listed on a Producing Party’s privilege log:
10 (a) Attorney-client communications between a party and its counsel
11 after the start of litigation as to that party. For purposes of this Order only, the
12 litigation is deemed to have started on the day that a party first consulted an
13 attorney regarding any of the issues out of which this lawsuit arises.
14 (b) Attorney work product created after the Party’s retention of
15 counsel.
16 (c) Internal communications within a law firm or the legal
17 department of a party after the start of litigation.
18 (d) Documents and communications between outside counsel or
19 outside counsel and in-house counsel for the parties after the start of the
20 litigation.
21 (e) Documents and communications between and/or among outside
22 counsel that has been retained by a party to this litigation and the party,
23 litigation technology consultants or providers, any non-testifying experts, and,
24 with respect to information protected by Fed. R. Civ. P. 26(b)(4), testifying
25 experts.
26 (f) Communications between Parties and their respective spouses.
27 (g) Documents and Communications between Parties and their
28 respective medical providers.
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1 (h) Tax returns and related documents.
2 (i) Privilege redactions made on the face of produced documents,
3 provided that the redaction clearly indicates that privilege is being asserted
4 and the context of the document enables the Receiving party to reasonably
5 assess the claim.
6 10. FORENSIC EXAMINATION
7 10.1 If any Party requests a Forensic Copy of the entirety of a device
8 or drive with potentially responsive or relevant data, files, or information for the
9 purpose of a forensic examination, the independent third-party examiner retained by
10 the Party requesting the Forensic Copy or Copies will be given access to the device
11 or drive for the purpose of making the Forensic Copy or Copies upon reasonable
12 notice during regular business hours. The Party requesting the Forensic Copy or
13 Copies shall bear the cost of the creation and storing of the Forensic Copy or
14 Copies. The Parties will ensure the Forensic Copy or Copies remain(s) intact and
15 accessible throughout the duration of this litigation and any appeals thereto.
16 10.2 The Parties will meet and confer if any party believes that a
17 forensic examination of any device(s) is necessary to recover latent data (e.g.,
18 deleted or partially overwritten data). If the Parties agree that a forensic examination
19 is appropriate, they will select a third-party neutral qualified to perform the forensic
20 examination. The neutral will prepare a detailed forensic examination protocol for
21 each type of device to be examined. The Parties will meet and confer to resolve any
22 objections to the protocol. Each Party will receive a complete copy of all forensic
23 images and any accompanying report prepared by the neutral. If the Parties are
24 unable to agree on either the need for a forensic examination or any part of the
25 protocol prepared by the third-party neutral, the Party requesting the forensic
26 examination or objecting to the protocol shall file a motion within 10 days of the
27 parties’ conference, including a written statement by each party of its position
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1 concerning the matter. The cost of any forensic examination will be borne by the
2 Party requesting it unless otherwise ordered by the Court.
3 11. MODIFICATION
4 This Stipulated Order may be modified by a Stipulated Order of the parties or
5 by the Court for good cause shown.
6 IT IS SO STIPULATED, through Counsel of Record.
7
8 Dated: September 6, 2022 /s/ Tamany J. Vinson Bentz
9 Counsel for Plaintiff
10 /s/ Catherine Close
11 Counsel for Defendants
12
IT IS SO ORDERED that the foregoing Stipulation is approved.
13
September 13
14 Dated: ______________, 2022
15 HON. MARIA A. AUDERO
UNITED STATES MAGISTRATE JUDGE
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