Case 2:22-cv-02052-MAA Document 94 Filed 07/12/23 Page 1 of 30 Page ID #:2810

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 TO
17
COMPEL SLACK
18 vs. COMMUNICATIONS AND FOR
SANCTIONS
19

20
KATHERINE MCNAMARA, an Date of Motion: July 12, 2023
21 Individual; JEREMY WHITELEY, an Action Filed: March 8, 2022
individual; and DOES 1 through 50, Discovery Cut-off: August 30, 2023
22 inclusive,
Pretrial Conf. Date: January 3, 2024
23 Trial: January 16, 2024
24 Defendants.
25[Assigned to the Hon. Maria A. Audero]

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1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTORY STATEMENT…………………………………………………………………………… 1

4 A. Defendants’ Introductory Statement ………………………………………………………………. 1

5 B. Plaintiff’s Introductory Statement ………………………………………………………………….. 2

6 II. ISSUES IN DISPUTE …………………………………………………………………………………………….. 4

7 A. Defendants’ Statement of Issues in Dispute …………………………………………………….. 4

8 1. Whether BCS Should be Compelled to Produce the Slack
Communications That it Has Failed to Produce. ……………………………………. 4
9
2. Whether the Court Should Impose Monetary Sanctions Against BCS
10 and its Counsel. ………………………………………………………………………………… 4

11 B. Plaintiff’s Statement of Issues in Dispute ……………………………………………………….. 5

12 III. PARTIES’ CONTENTIONS AND POINTS AND AUTHORITIES …………………………….. 5

13 A. Issue No. 1: Whether BCS Should be Compelled to Produce the Slack
Communications That it Has Failed to Produce. ………………………………………………. 5
14
1. Defendants’ Contentions and Points and Authorities …………………………….. 5
15
(a) Relevant Deposition Testimony ……………………………………………….. 5
16
(b) Procedural History ………………………………………………………………….. 6
17
(c) There is No Dispute That Plaintiff Failed to Produce Critical
18 Slack Communications ………………………………………………………….. 11

19 (d) There is No Excuse for Plaintiff’s Failure to Produce the
Slack Communications Because Plaintiff Could Have
20 Requested the Documents from Slack …………………………………….. 15

21 (e) There is No Excuse for Plaintiff’s failure to produce the
Slack Communications Because its eDiscovery Vendor
22 Promotes That it can Collect the Messages Regardless of
License Level ………………………………………………………………………. 17
23
(f) There is No Other Excuse for Plaintiff’s Failure to Produce
24 the Slack Communications …………………………………………………….. 18

25 2. Plaintiff’s Contentions and Points and Authorities ………………………………. 19

26 B. Issue No. 2: Whether the Court Should Impose Monetary Sanctions Against
BCS and its Counsel …………………………………………………………………………………… 22
27
1. Defendants’ Contentions and Points and Authorities …………………………… 22
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1 2. Plaintiff’s Contentions and Points and Authorities ………………………………. 23

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1 TABLE OF AUTHORITIES

2 Page

3 CASES

4 Apple Inc. v. Samsung Elecs. Co.
No. 12-CV-0630-LHK (PSG), 2013 WL 4426512, at *3 (N.D. Cal. Aug. 14, 2013) …….. 16
5
Benebone LLC v. Pet Qwerks, Inc.
6 No. 820CV00850ABAFMX, 2021 WL 831025, at *1 (C.D. Cal. Feb. 18, 2021) …………. 15

7 Breaking Code Silence v. Papciak, et al.
SDCA Case No. 21-cv-00918-BAS-DEB ………………………………………………………………… 13
8
Bryant v. Mattel, Inc.
9 Case Nos. C 04-09049 SGL (RNBx), 2007 WL 5430887 at *1 (C.D. Cal. June 20,
2007)…………………………………………………………………………………………………………………… 24
10
Jadwin v. Cnty. of Kern
11 No. 107CV-0026-OWW-TAG, 2008 WL 2025093, at *5 (E.D. Cal. May 9, 2008) ………. 16

12 OpenTV v. Liberate Techs.
219 F.R.D. 474, 476 (N.D. Cal. 2003) …………………………………………………………………….. 15
13
Oppenheimer Fund, Inc. v. Sanders
14 437 U.S. 340, 358, 98 S.Ct. 2380, 2393 (1978) ………………………………………………………… 15

15

16 STATUTES

17 Fed. R. Civ. P. 37(a)(5)(A)……………………………………………………………………………………………….. 23

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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 One of the primary allegations against Defendants (and virtually the only
5 allegation against Jeremy Whiteley) is that Defendants were somehow responsible

6 for “de-indexing” the breakingcodesilence.org domain (the “.Org Domain”) from

7 Google Search. The basis for Plaintiff’s theory can be summarized as follows: (1)

8 the Google Search Console allegedly shows that a request to remove the .Org

9 Domain from Google Search was made on March 9, 2022; and (2) the Google

10 Webmaster Central shows that Ms. McNamara delegated Google ownership

11 capabilities for the .Org Domain to Mr. Whiteley on March 11, 2022. From these

12 two facts, Plaintiff has made the extraordinary logical leap that Defendants must

13 have been the ones who submitted the temporary removal request on March 9 th.

14 Plaintiff reached its conclusion even though it never saw any evidence that

15 Defendants had access to the Google Search Console on March 9 th when the

16 removal request was allegedly made. Plaintiff also assumes, without any evidence,

17 that both Defendants must have been involved, even though Plaintiff does not know

18 which of the Defendants supposedly made the removal request.

19 Defendants strongly believe that the actual reasons Plaintiff brought the
20 instant action was (1) because Defendants had the audacity to complain about being

21 harassed by Plaintiff’s board president, Vanessa Hughes (“Hughes”), and (2)

22 Hughes believed that Plaintiff could obtain a windfall by suing Defendants through

23 pro bono attorneys. In order to uncover the true reasons for the instant lawsuit,

24 Defendants are entitled to know everything about Plaintiff’s investigation into why

25 the .Org Domain was allegedly not appearing on Google Search in March 2022.

26 Multiple witnesses have testified that Plaintiff’s leadership team discussed the
27 investigation on Slack in March 2022. Defendants asked Plaintiff to produce these

28 Slack communications; Plaintiff agreed to produce these Slack communications; the

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1 Court ordered Plaintiff to produce the Slack communications; and yet, the vast

2 majority of the Slack communications still have not been produced. Defendants

3 respectfully request that the Court order Plaintiff to produce the Slack

4 communications (for a second time) and to sanction Plaintiff and its counsel for

5 withholding the Slack communications.

6 B. Plaintiff’s Introductory Statement
7 Plaintiff has a Pro subscription plan to Slack. This is a free account offered to
8 Plaintiff because it is a non-profit. Because Plaintiff’s subscription plan is a Pro plan

9 only public Slack channels can be exported by Plaintiff from Slack. Starting in

10 November 2022, Plaintiff worked with its vendor, Consilio, to export all of the data

11 it could from Slack and the data was exported on January 5, 2023. That data was

12 later reviewed and produced as discussed with the Court during the May 1, 2023,

13 IDC.

14 Plaintiff is not hiding evidence in Slack. Plaintiff has been transparent with
15 Defendants’ regarding the limitations of its Slack subscription. There has been

16 repeated communication between the parties about the production of Slack

17 communications (which is not something it appears Defendants dispute). Plaintiff

18 has also offered to connect Defendants’ counsel with Plaintiff’s vendor Consilio so

19 counsel could discuss collection efforts directly with the vendor. See 4/18/23 Tr. at

20 59:24-60:7. Through these discussions, Defendants were made aware of the

21 limitations of the license, something they brought to the Court’s attention during an

22 IDC on May 1, 2023. See 5/1/23 Tr. at 2519-23.

23 Plaintiff’s efforts to collect Slack communications started in November 2022.
24 At that time Plaintiff was retaining Consilio, an established eDiscovery provider, on

25 a pro bono basis. Plaintiff immediately gave Consilio access to the

26 breakingcodesilencehq Slack account so that the forensic technician could
27 familiarize himself with the environment and could work on exporting data from the

28 account. Declaration of Dennis Kiker at ¶ 2 (“Kiker Decl.”). In late December,

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1 Plaintiff upgraded the Consilio forensic technician’s user account to “Workspace

2 Admin,” which enabled Consilio to export available reports and public channel

3 messages. Kiker Decl. at ¶ 3.The Slack reports were prioritized for collection and

4 production. The reports were collected on January 4, 2023, and produced shortly

5 thereafter. Kiker Decl. at ¶ 4. On January 5, 2023, Consilio exported all the

6 messages that were available for export, which included messages from all public

7 channels on Slack. In total there were 25 public channels. The messages that were

8 collected were reviewed and responsive messages were produced on May 1, and

9 May 4, 2023. Kiker Decl. at ¶ ¶ 5-6. Once Plaintiff reviewed the messages it

10 collected, it confirmed that there were responsive messages in private channels and

11 individual account direct messages that had not been collected. Kiker Decl. at ¶ 7.

12 Plaintiff continued to work with Consilio to determine the most efficient
13 method of collecting the private channels and direct messages that had been

14 identified through discovery or by Plaintiff’s witnesses as having responsive

15 information. Kiker Decl. at ¶ 8. While the private channels and direct messages were

16 not available for export with Plaintiff’s Slack subscription, Consilio evaluated

17 options with Slack customer support and identified a method that allowed the

18 forensic technician to collect the private channels and direct messages through an

19 administrative account. Kiker Decl. at ¶ 9. Consilio collected those channels on June

20 27-30, 2023. The messages in those channels are in review and responsive

21 documents will be produced by July 14, 2023.

22 In addition to making its own productions, during the inspection of Plaintiff’s
23 online systems on June 26, 2023, Plaintiff agreed and facilitated a direct inspection

24 of its Slack accounts. Declaration of Michael Patrick Brown (“Brown Decl.”) at ¶¶

25 2-3. After Plaintiff offered to make available four of its Slack accounts for

26 inspection, Defendants’ and their expert inspected two of these Slack private
27 channels, including the BCS account for witnesses Jenny Magill and Jesse Jensen.

28 Id. ¶ 3. Defendants’ inspection of these Slack channels was unfettered and lasted

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1 more than two hours alone over the day-long inspection. Id. ¶ 4. In fact, Defendants

2 performed broad key word searches in Slack messages in these channels. Id.

3 In light of Plaintiff’s efforts to collect Slack documents and communications
4 with Defendants regarding those efforts, this motion was unnecessary. Plaintiff has

5 never refused to produce these communications and, in fact, will complete its

6 production of them by July 14, 2023.

7 Furthermore, Plaintiff’s efforts were compliant with the parties’ agreement
8 under the EDO. The EDO is explicitly subject to the FRCP and industry standard

9 practices. Specifically, the EDO states, “The Parties agree to take into account the

10 proportionality considerations addressed in Federal Rules of Civil Procedure for

11 purposes of preservation and production of ESI and hard copy documents in this

12 Action.” Dkt. 41 § 6.1 (emphasis added). The EDO further states, “Each Producing

13 Party shall design and implement the industry standard and approved methods it

14 uses to identify, cull, and review its potentially responsive ESI based on its

15 knowledge and understanding of its own data, the facts and issues involved in the

16 Action,” and “A Producing Party may also conduct a targeted collection of sources

17 likely to contain responsive materials (e.g., file folders on a given hard drive).” Id. §

18 4.5 (emphasis added). These provisions of the EDO expressly allow Plaintiff to

19 work with its vendor on the most efficient way to collect these communications.

20 Since the documents were produced well before the close of discovery, Plaintiff’s

21 efforts did not prejudice Defendants. There is accordingly no basis for sanctions

22 against Plaintiff or its counsel.

23 II. ISSUES IN DISPUTE
24 A. Defendants’ Statement of Issues in Dispute
25 1. Whether BCS Should be Compelled to Produce the Slack
26 Communications That it Has Failed to Produce.
27 2. Whether the Court Should Impose Monetary Sanctions Against
28 BCS and its Counsel.
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1 B. Plaintiff’s Statement of Issues in Dispute
2 1. Whether the Court Should Impose Monetary Sanctions When
3 Defendants Filed This Motion After Confirmation That the Slack
4 Communications In Question Would Be Produced.
5

6 III. PARTIES’ CONTENTIONS AND POINTS AND AUTHORITIES
7 A. Issue No. 1: Whether BCS Should be Compelled to Produce the
8 Slack Communications That it Has Failed to Produce.
9 1. Defendants’ Contentions and Points and Authorities
10 (a) Relevant Deposition Testimony
11 Noelle Beauregard (“Beauregard”) was the first primary investigator into the
12 cause of the “de-indexing.” Ms. Beauregard’s investigation was simple. First, when

13 she signed on to the Google Webmaster / Google Search Console she saw that

14 Megan Hurwitt and Defendants were each listed as having access to the Google

15 Webmaster / Google Search Console. (Tate Decl., ¶ 22, Ex. 16 [Deposition of

16 Noelle Beauregard (“Beauregard Depo”)], 22:7-23:12.) Second, Ms. Beauregard

17 was also able to see on the Google Search Console that a request to temporarily

18 remove the .Org Domain from Google Search was submitted March 9, 2022. (Id. at

19 49:10-50:6.) This was the entirety of her investigation. (Id. at 28:22-29:3.) Ms.

20 Beauregard testified that at or about the time of her investigation, she shared her

21 findings with Plaintiff’s leadership on Slack, including by uploading approximately

22 25 screen shots that she took. (See id. at 42:1-43:5; 43:24-44:7.)

23 The second primary investigator was Jesse Jensen (“Jensen”). Mr. Jensen is
24 the person who made an extraordinary logical leap that Defendants must have been

25 the ones who submitted the temporary removal request on March 9 th because

26 Defendants had ownership access to the Google Search Console when he started his
27 investigation on March 11th. (Tate Decl., ¶ 23, Ex. 17 [Deposition of Jesse Jensen

28 (“Jensen Depo.”), 149:6-150:24.) Mr. Jensen also testified that Plaintiff’s leadership

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1 team discussed the allegations against Defendants at the time of the investigation.

2 When asked to ballpark how many messages regarding the allegations by Plaintiff

3 against Defendants were sent on Slack, Jensen explained that “there was a lot of

4 information that went back and forth there” but probably less than 300 messages.

5 (Id. at 272:17-24.) At Mr. Jensen’s direction, Plaintiff’s leadership team later moved

6 their conversation from Slack to Signal. (Id. at 23:18-24:13.)

7 As discussed below, the Slack communications referenced by Ms. Beauregard
8 and Jesse Jensen at their depositions have not been produced. As outlined in the

9 accompanying motion, the Signal communications also have not been produced. As

10 a result, the arguably most important communications in this case are being

11 withheld from discovery.

12 (b) Procedural History
13 Over a year ago, on June 14, 2022, McNamara propounded Requests for
14 Production of Documents (Set 1) on Plaintiff. Request No. 15 asked Plaintiff to:

15 “Please PRODUCE all Slack chat messages and logs for BCS from March 14, 2021

16 to the present, including audit logs reflecting any alterations and deletions.” (Tate

17 Decl., ¶ 2, Ex. 1.) On July 29, 2022, Plaintiff responded to Request No. 15 asserting

18 a litany of boilerplate objections but stating, “Subject to and without waiving the

19 foregoing objections, Plaintiff will produce responsive, non-privileged documents

20 that relate to the claims or defenses in this action, to the extent any exist.” (Tate

21 Decl., ¶ 3, Ex. 2.)

22 On September 13, 2022, the Court issued the stipulated E-Discovery Order
23 (the “EDO”). Among other things, the EDO provides that the parties would collect

24 documents from each of the data sources identified in Section 4.4, including Slack

25 communications, for each of the custodians listed in Section 4.3. (Declaration of

26 Catherine Close (“Close Decl.”), ¶ 6, Ex. 25 [Dkt. 41, §4.4.]) Section 7.1 then
27 provides that “[t]he Parties will produce, on a rolling basis, ESI from the data

28 sources and Custodians identified in paragraph 4.3 and 4.4” (Id. at §7.1.) Thus,

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1 Plaintiff twice agreed to collect and produce the relevant Slack communications and

2 the Court has ordered Plaintiff to provide the relevant Slack communications.

3 Notwithstanding the foregoing, as of April 2023, Plaintiff had not produced any

4 Slack communications whatsoever. (Tate Decl., ¶ 5.)

5 On April 19, 2023, the parties attended the first of the informal discovery
6 conferences relating to the subject motion (the “IDCs”), which the Court named

7 “IDC 3”. Following IDC 3, the Court issued an order requiring Plaintiff to provide a

8 chart that lists the custodians identified in Section 4.3 of the EDO on one axis and

9 the sources of documents/data identified in Section 4.4 of the EDO on the other axis

10 and indicate whether or not the particular data sources had been searched for each

11 custodian. (Close Decl., ¶ 4, Ex. 26 [Dkt. 52.].)

12 On April 24, 2023, Plaintiff provided the requested chart. (Tate Decl., ¶ 3.)
13 According to the chart, Plaintiff had gathered and reviewed 1,148 Slack documents,

14 but the documents had not yet been produced. Later that day, the parties attended

15 “IDC 4,” during which Dennis Kiker at DLA Piper represented that the 1,148 Slack

16 documents would be produced within a week. Mr. Kiker also represented that

17 Plaintiff had produced four “Slack Audit Logs.” On April 25, 2022, Mr. Kiker sent

18 an email identifying the “Slack Audit Logs” as BCS0000316 – BCS0000319. (Tate

19 Decl., ¶ 9, Ex. 4.)

20 On May 1, 2023, the parties attended another IDC, which the Court named
21 “IDC 5.” Inasmuch as the Slack communications still had not been produced, the

22 Court ordered the production of the Slack communications be produced by May 5,

23 2023. The Court also ordered that, “[s]hould Defendants, upon review of the

24 production, contend, on the basis of reasonable non-speculative belief, that Plaintiff

25 is withholding relevant, non-privileged documents, they may file a discovery motion

26 pursuant to Federal Rule of Civil Procedure (“Rule”) 37.” (Close Decl., ¶ 5, Ex. 27
27 [Dkt. 56.].)

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1 On May 4, 2023, Mr. Kiker sent Defendants’ counsel an email indicating that
2 Plaintiff had produced a total of 35 Slack documents and that no documents were

3 withheld on the basis of privilege. Mr. Kiker also affirmed that he personally

4 reviewed the Slack documents and that Plaintiff was producing everything that was

5 “even marginally relevant.” (Tate Decl., ¶ 11, Ex. 5.)

6 Later that day, Defendants counsel sent a follow up email asking for the bates
7 numbers of the 35 slack documents and then asking counsel to explain how there

8 could only be 35 total Slack documents if Jesse Jensen testified to hundreds of Slack

9 messages. (Tate Decl., ¶ 12, Ex. 6.)

10 The next day, Mr. Kiker identified the 35 Slack documents as BCS_0574083
11 – BCS_0574185; BCS_0574539 – BCS_0574545. Mr. Kiker then attempted to

12 explain that there is a difference between “documents” and “communications,” once

13 again implying that Plaintiff’s document production was complete. Importantly, Mr.

14 Kiker did not state nor did he suggest that the relevant documents were being

15 withheld due to an inability by Plaintiff to collect the documents. (Tate Decl., ¶ 13,

16 Ex. 7.)

17 All of the 35 documents identified by Mr. Kiker are dated between May 31,
18 2021 and August 17, 2021 – well before the alleged “de-indexing” incident and

19 investigation in March 2022. It also appears that all of the documents were taken

20 from Plaintiff’s “public” Slack channels. No documents appear to have been

21 produced from the “private” Slack channels or direct messages (i.e., where you

22 expect the relevant communications to be). (Tate Decl., ¶ 13.)

23 On May 18, 2023, Defendants’ counsel sent an email to Mr. Kiker asking him
24 to confirm that (1) the only communications produced were from the public Slack

25 channels, (2) Plaintiff did not contact Slack to request the ability to export data from

26 the private channels and direct messages, and (3) Plaintiff also did not manually pull
27 up the private Slack channels or the direct messages in order to be able to produce

28 the rel.evant Slack communications. Mr. Kiker did not respond to this email. (Tate

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1 Decl., ¶ 14, Ex. 8.)

2 Having not heard anything from Mr. Kiker, and relying on Mr. Kiker’s
3 statement that Plaintiff was contending that it had produced every “marginally

4 relevant document,” Defendants filed a motion to compel on June 14, 2023. The

5 motion to compel largely showed that relevant Slack documents exist that are not

6 included in the 35 Slack communications identified by Mr. Kiker. (Tate Decl., ¶ 15.)

7 However, the Court struck the motion due to Defendants’ failure to submit this joint

8 statement in compliance with Local Rule 37-2.

9 In anticipation of refiling the motion in the form of this Joint Statement,
10 Defendants’ counsel sent an email to Plaintiff’s counsel seeking to further narrow

11 the issues in dispute. In response, on June 19, 2023, Plaintiff completely changed

12 its story. Instead of representing that all of the relevant documents had been

13 produced, Plaintiff’s counsel, Tamany Bentz, stated, “As we have previously

14 informed you, BCS’s Slack license does not provide for export of private channels

15 or DMS.” (Tate Decl., ¶ 16, Ex. 9.) Ms. Bentz’s statement is false. Prior to this

16 email, Plaintiff had never taken the position that it was unable to collect from the

17 private channels or direct messages and, as discussed below, Slack allows for export

18 of private channels or DMS regardless of license where there is a valid legal

19 process. (Tate Decl., ¶ 16.)

20 That same day, Defendants’ counsel informed Ms. Bentz that her
21 representation was incorrect and provided a document from Plaintiff’s own e-

22 discovery vendor, Consilio, stating that Consilio has the ability to produce

23 communications from private channels and direct messages regardless of what

24 license Plaintiff has. Defendants’ counsel’s email further asked if Plaintiff could

25 provide something from Consilio that would support the position that Plaintiff could

26 not produce the private channels and direct messages. (Tate Decl., ¶ 17, Ex. 10.)
27 Later that day, Mr. Kiker confirmed that Plaintiff had not previously taken the
28 position that it was unable to produce the Slack communications. Mr. Kiker then

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1 pointed to a Slack webpage which supposedly showed that only entities with

2 Busin.ess+ or Enterprise Grid level Slack licenses can export private channels and

3 direct messages directly. (Tate Decl., ¶ 18, Ex. 11.)

4 In response, on June 20, 2023, Defendants’ counsel pointed Mr. Kiker to
5 another portion of Slack’s website which explains that, regardless of the level,

6 workplace owners may contact Slack and apply to export data from private channels

7 and direct messages when subject to a valid legal process. Defendants’ counsel

8 asked whether Plaintiff had done this. Defendants’ counsel also reiterated its request

9 that he be provided something from Consilio to the effect that Consilio could not

10 collect the private channel communications and direct messages. (Tate Decl., ¶ 19,

11 Ex. 12.)

12 In response, Mr. Kiker effectively dodged both questions. He did not provide
13 anything from Consilio stating that the documents could not be collected, nor did he

14 answer the question of whether anyone from BCS ever asked Slack about the ability

15 to export BCS’ messages. (Tate Decl., ¶ 20, Ex. 13.)

16 On June 20, 2023, Defendants’ counsel asked for the third time if Plaintiff
17 had contacted Slack to apply to export data from private channels and direct

18 messages. (Tate Decl., ¶ 21, Ex. 14.) Mr. Kiker admitted that Slack informed

19 Plaintiff that it could provide the direct messages and private channel messages for

20 an “associated cost.” Apparently, Plaintiff did not even ask what the cost would be.

21 (Tate Decl., ¶ 21, Ex. 15.)

22 Finally, Defendants’ counsel asked whether the cost to have Slack provide the
23 documents was the only reason why Plaintiff had failed to produce the Slack

24 documents from the private channels and direct messages. Mr. Kiker responded that

25 Plaintiff supposedly did not fail to produce the documents but that Plaintiff was

26 working to produce them. However, when asked when Plaintiff would actually
27 produce the Slack Communications, Mr. Kiker responded that he could not give an

28 estimate of when that would be completed. (Tate Decl., ¶ 22, Ex. 16.)

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1 (c) There is No Dispute That Plaintiff Failed to Produce
2 Critical Slack Communications
3 As outlined in the statement of facts above, Plaintiff originally claimed that it
4 was producing all of the even marginally relevant Slack communications. Later,

5 after Defendants filed a motion proving that other relevant Slack communications

6 exist that were not produced, Plaintiff completely changed its story and started

7 claiming instead that it could not produce the direct messages or the messages from

8 the private channels. As such, there is no longer any dispute that Plaintiff has failed

9 to produce all of the relevant Slack communications.

10 The missing Slack communications are critical to the case. Both Ms.
11 Beauregard and Mr. Jensen testified in their respective depositions about having

12 Slack communications relating to the allegation that Defendants supposedly de-

13 indexed the .Org Domain. Specifically, Ms. Beauregard testified that there was a

14 Slack communication in which she discussed the “de-indexing” with other team

15 members of BCS. (Ex. 17, Beauregard Depo., 42:1-12.) She also testified that this

16 Slack communication likely occurred around March 11, 2022. (Id. at 42:16-20.)

17 Additionally, Ms. Beauregard testified that she sent all of the screenshots that she

18 took (approximately 25) to the Plaintiff’s leadership team, including Jenny Magill,

19 through Slack. (Id. at 42:1-8; 42:23-43:5; 44:2-7.)

20 At his deposition as BCS’ Person Most Qualified, Jesse Jensen also testified
21 that he communicated with the leadership team via Slack. When he was asked to

22 ballpark the number of Slack communications between BCS members relating to the

23 allegations against Defendants, his response was “[l]ess than 300” and he went on to

24 explain that “there was a lot of information that went back and forth there…” (Ex.

25 18, Jensen Depo., 272:17-24.)

26 Despite this testimony, none of the 35 Slack documents identified by Mr.
27 Kiker include Noelle Beauregard or Jesse Jensen at all. Further, none of the 35

28 Slack documents identified by Mr. Kiker are even dated in the same year that Ms.

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1 Beauregard and Jesse Jensen conducted their investigation. (Tate Decl., ¶ 18.)

2 Plaintiff also produced a Slack Log bates numbered BCS000316. According
3 to this log, the following messages were sent on Slack between March 9, 2022, and

4 March 14, 2022:

5 Date Daily Public Private Direct Files
6 Active Channel Channel Messages Uploaded
7 Members Messages Messages
8 3/9/22 20 11 21 55 5
9 3/10/22 21 7 10 200 36
10 3/11/22 19 12 9 57 5
11 3/12/22 15 0 18 84 55
12 3/13/22 19 12 20 43 4
13 3/14/22 19 16 73 48 7
14 Total N/A 58 151 487 112
15

16 (Tate Decl., ¶ 26, Ex. 19.)

17 It appears that a relatively small group of approximately twenty persons, sent
18 more than six hundred direct messages and private channel messages in the six

19 days following the temporary removal request allegedly made on March 9, 2022.

20 None of these messages are included in the 35 documents identified by Mr. Kiker.

21 (Tate Decl., ¶ 27.)

22 The above documents and figures comport with Ms. Beauregard’s and Mr.
23 Jensen’s testimony that Plaintiff’s leadership team was discussing the “de-indexing”

24 incident and sharing screenshots with one another. Aside from Ms. Beauregard’s

25 and Mr. Jensen’s deposition testimony, it stands to reason that at least some of those

26 messages must have related to the alleged de-indexing incident and the ensuing
27 investigation. Yet, Plaintiff has failed to produce any of these communications.

28

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1 In addition to communications relating to the alleged de-indexing, the missing
2 Slack communications are important to show the true reasons why Plaintiff filed the

3 instant lawsuit. Among the most interesting documents that Plaintiff has produced in

4 this action are the communications between Vanessa Hughes, Jennifer Magill, and

5 Chelsea Papciak also known as Chelsea Filer (“Papciak”).

6 By way of context, on May 13, 2021, Plaintiff initiated a lawsuit against
7 Papciak and others which generally alleged that Papciak and her co-defendants had

8 violated that Lanham Act by using the name “Breaking Code Silence” through the

9 use of the domain Breakingcodesilence.net and various social media accounts. (See

10 generally, Breaking Code Silence v. Papciak, et al., SDCA Case No. 21-cv-00918-

11 BAS-DEB.)

12 On August 2, 2021, Papciak and her co-defendants filed a motion to dismiss
13 arguing that Plaintiff did not own the rights to the Breaking Code Silence mark. In

14 conjunction therewith, Papciak submitted a declaration showing that the

15 Breakingcodesilence.net domain and social media accounts were not created for

16 Plaintiff’s benefit as they were created well before Plaintiff was even organized.

17 (Tate Decl., ¶ 30, Ex. 24.)

18 On February 11, 2022, the Southern District of California granted the motion
19 to dismiss finding that “BCS does not plausibly allege that it is the owner of the

20 mark through its own use.” Plaintiff was given until March 4, 2022, to file an

21 amended complaint. (Breaking Code Silence v. Papciak, No. 21-CV-00918-BAS-

22 DEB, 2022 WL 432544, at *4 (S.D. Cal. Feb. 11, 2022).)

23 On the same day that the motion to dismiss was granted, Jennifer Magill sent
24 an email to Jenna Bulis, Hughes, and Papciak which states in relevant part “We set

25 up a Slack Connect channel for the four of us to continue discussion and

26 collaborate on things like this. I sent you both an invite to join…” (Tate Decl., ¶ 28,
27 Ex. 23, emphasis added.)

28

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12

13 (Tate Decl., ¶ 29.)

14 On March 8, 2022, the day that the first (unsuccessful) de-indexing request to
15 the .Org Domain was allegedly submitted, the Southern District issued an order to

16 show cause why it should not dismiss the Papciak Action. On March 9, 2022, the

17 day that the final (successful) de-indexing request to the .Org Domain was allegedly

18 submitted, Plaintiff filed a notice of voluntarily dismissal. (Tate Decl., ¶ 32.)

19 Defendants are obviously entitled to discover what was discussed in the Slack
20 channel between Hughes, Magill, and Papciak. At a minimum, the Slack

21 communications will help further establish that Plaintiff intended to sue Defendants

22 long before the alleged de-indexing – thereby supporting Defendants’ theory that the

23 instant action is entirely pretextual. Given the suspicious timing of dates on which

24 the .Org Domain was allegedly de-indexed and the date that Plaintiff dismissed its

25 action against Papciak, there is at least some possibility that the communications

26 will reveal not just a plot to sue Defendants, but also plot to de-index the website
27 and blame Defendants for doing so.

28

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1 (d) There is No Excuse for Plaintiff’s Failure to Produce the
2 Slack Communications Because Plaintiff Could Have
3 Requested the Documents from Slack
4 Defendants first requested that Plaintiff produce the Slack communications
5 more than a year ago and, despite Plaintiff’s promise to produce “responsive, non-

6 privileged documents that relate to the claims or defenses in this action, to the extent

7 any exist,” Plaintiff still has not produced any Slack communications made in the

8 private channels or through direct messages (i.e. where you would expect the

9 relevant messages to be.) (Tate Decl.,¶ 13, Ex. 7.)

10 There is simply no excuse for Plaintiff’s failure to produce the Slack
11 communications. First, as conceded by Mr. Kiker, Slack informed Plaintiff that it

12 could export the messages. This comports with Slack’s public facing documents

13 which likewise confirm that, regardless of license level, Workspace orders may

14 contact Slack and “apply to export content from all channels and conversations,

15 including private channels and direct messages.” (See

16 https://slack.com/help/articles/204897248-Guide-to-Slack-import-and-export-

17 tools#h_01EJ96AV9MF56A2RHKES5JCWE7, last accessed June 20, 2023.)

18 To date, the only excuse that Plaintiff has given for its failure to ask Slack to
19 collect the messages is that there is some unknown “associated cost.” The fact that

20 there may be some cost to produce documents, is not a sufficient grounds to refuse

21 to produce documents. Most productions of electronically stored information have a

22 cost associated with them and the presumption is that the responding party must

23 bear the expense of complying with a discovery request anyway. (Oppenheimer

24 Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S.Ct. 2380, 2393 (1978); accord

25 OpenTV v. Liberate Techs., 219 F.R.D. 474, 476 (N.D. Cal. 2003).) Indeed, this

26 Court has ordered the production of Slack documents even where the cost to gather
27 and produce documents is significant. (See, e.g., Benebone LLC v. Pet Qwerks, Inc.,

28 No. 820CV00850ABAFMX, 2021 WL 831025, at *1 (C.D. Cal. Feb. 18, 2021)

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1 (compelling the production of Slack communications where one party estimated that

2 it cost would between $110,000 to $255,000 to extract process and review the Slack

3 messages and the other party estimated that it would cost $22,000).)

4 Under certain limited circumstances a Court may limit the scope of a
5 production or may order the cost of the production to be shifted where the objecting

6 party can show that the discovery imposes an “‘undue burden or expense’ that

7 outweighs the likely benefits of the discovery and after consideration of all relevant

8 factors.” (Jadwin v. Cnty. of Kern, No. 107CV-0026-OWW-TAG, 2008 WL

9 2025093, at *5 (E.D. Cal. May 9, 2008), emphasis added.) However, in order to

10 obtain such an accommodation, the objecting party must make a “particular and

11 specific demonstration of fact, as distinguished from stereotyped and conclusory

12 statements.” (Apple Inc. v. Samsung Elecs. Co., No. 12-CV-0630-LHK (PSG), 2013

13 WL 4426512, at *3 (N.D. Cal. Aug. 14, 2013).) It is unclear how Plaintiff can

14 possibly meet this standard since Plaintiff did not even ask Slack how much the

15 associated cost to export the messages would be. (See Tate Decl.,¶ 21, Ex. 15.)

16 Given the incredible importance of the Slack communications, Plaintiff also cannot

17 show that cost to collect the documents (whatever it is) would outweigh the benefits

18 of discovery.

19 Regardless, there is no reason to suspect that the ancillary cost would be
20 particularly great. As conceded by Mr. Kiker, Slack Business+ license holders can

21 export private channel messages and direct messages. (See Tate Decl.,¶ 18, Ex. 11.)

22 The normal cost for a business+ license on Slack is $12.50 per month per user.

23 However, Slack allows non-profit organizations to apply for an 85% discount

24 reducing the cost per user to only $1.88 per month. (See

25 https://slack.com/help/articles/204368833-Apply-for-the-Slack-for-Nonprofits-

26 discount, last accessed June 20, 2023.) The Slack log produced by Plaintiff suggests
27 that Plaintiff has had (at most) 182 members on its Slack. (See Tate Decl., ¶ 26, Ex.

28 19.) Thus, the cost to upgrade Plaintiff’s license for one month so that Plaintiff can

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1 export the messages is only $342.16 or less. In addition, after Plaintiff’s counsel

2 indicated that he did not ask Slack what the “associated cost” to export the data

3 would be, Defendants reached out to Slack directly. As shown the support ticket

4 attached as Exhibit 28 to the declaration of Katherine McNamara, Slack informed

5 Defendants that Slack would not charge any fees for a one-time export of

6 information. (Declaration of Katherine McNamara, ¶ 3, Ex. 28.) If, Plaintiff’s

7 counsel claims, Slack actually informed Plaintiff something different, Defendants

8 respectfully invite Plaintiff to provide such evidence.

9 (e) There is No Excuse for Plaintiff’s failure to produce the
10 Slack Communications Because its eDiscovery Vendor
11 Promotes That it can Collect the Messages Regardless of
12 License Level
13 In addition to working directly with Slack, Plaintiff could have obtained the
14 documents through its discovery vendor, Consilio. In this respect, Defendants

15 counsel sent Mr. Kiker a publicly facing document from Consilio indicating that

16 Consilio could ingest messages from private channels and direct messages

17 regardless of Plaintiff’s license level. (See Tate Decl., ¶ 17, Ex. 10.) Defendants’

18 counsel asked (twice) to be provided something from Consilio to the contrary.

19 Despite such requests Plaintiff’s counsel has failed to provide anything. (Id. at ¶ 5.)

20 To the contrary, Plaintiff’s counsel’s emails suggest that Consilio does have
21 the ability to collect the information, but for reasons unknown, Plaintiff has not

22 directed Consilio to do so before now. In this respect on June 20, 2023, Mr. Kiker

23 stated, “We have enquired about Slack support and are informed that there is an

24 associated cost. For this reason, we are working initially with our pro bono forensic

25 services provider on a suitable solution.” (Tate Decl., ¶ 21, Ex. 15.) It is

26 inexcusable, that, over a year after receiving the document request, after multiple
27 depositions in which the Slack communications have been discussed, and after

28 multiple informal discovery conferences regarding the issue, Plaintiff is just now

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1 working with Consilio to figure out if it can gather the documents.

2 (f) There is No Other Excuse for Plaintiff’s Failure to
3 Produce the Slack Communications
4 The final communication between the parties regarding the motion to compel
5 was an email from Defendants’ counsel asking if there was any reason why the

6 Slack communications were not being produced other than the fact that Plaintiff did

7 not want to pay the “associated cost” to Slack. Again, Plaintiff’s counsel failed to

8 respond to this email before this Joint Statement was circulated. (Tate Decl., ¶ 22,

9 Ex. 16.)

10 Although not raised by Plaintiff to date, it is possible that Plaintiff may
11 attempt to argue that the Slack communications are not within Plaintiff’s possession,

12 custody and control. To the extent that Plaintiff makes this argument, the argument

13 should be rejected. Slack’s Customer Terms of Service state in relevant part:

14 When an Authorized User (including, you) submits
15 content or information to the Services, such as messages
16 or files (“Customer Data”), you acknowledge and agree
17 that the Customer Data is owned by Customer and the
18 Contract provides Customer with many choices and
19 control over that Customer Data. For example, Customer
20 may provision or deprovision access to the Services,
21 enable or disable third party integrations, manage
22 permissions, retention and export settings, transfer or
23 assign workspaces, share channels, or consolidate your
24 workspace or channels with other workspaces or channels,
25 and these choices and instructions may result in the access,
26 use, disclosure, modification or deletion of certain or all
27 Customer Data. (https://slack.com/terms-of-service/user,
28 last accessed June 20, 2023, emphasis added)
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1 Thus, Slack’s contract with Plaintiff expressly provides that Plaintiff is the
2 owner of the messages that Plaintiff has control over such data.

3 For all of the foregoing the reasons, there is no excuse for Plaintiff’s failure to
4 produce the Slack communications and Plaintiff should be compelled to do so.

5 2. Plaintiff’s Contentions and Points and Authorities
6 Defendants identify two categories of Slack communications as the basis of
7 their motion. First, communications relating to Defendants’ unauthorized access of

8 Plaintiff’s accounts and the resulting investigation. Second, communications with

9 Ms. Papciak regarding the settlement of a lawsuit between Plaintiff and Ms.

10 Papciak. Plaintiff has not refused to produce these communications, nor failed to

11 produce them. Rather, Plaintiff has taken reasonable steps to collect these

12 communications within the bounds of its resources and the limitations of its Slack

13 license.

14 In November, 2022, BCS provided Consilio access to the
15 breakingcodesilencehq Slack account so that the forensic technician could

16 familiarize himself with the Slack environment for purposes of preparing to collect

17 documents. Kiker Decl. at ¶ 2. In December 2022, BCS upgraded the Consilio user

18 account to Workspace Admin, enabling Consilio to export available reports and

19 private channel messages. Kiker Decl. at ¶ 3.

20 On January 4, 2023, Consilio exported four reports from Slack:
21 • Breaking Code Silence_Enterprise Analytics.xlsx
22 • Breaking Code Silence_Slack Channel Analytics.xlsx
23 • Breaking Code Silence_Slack Member Analytics.xlsx
24 • Breaking Code Silence_Slack Members.xlsx
25 These reports were included in BCS’s first production of documents
26 (BCS001). Kiker Decl. at ¶ 4. On January 5, 2023, Consilio exported messages
27 from all 25 public channels:

28

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1 • bcs-announcements
2 • bcs-dc-planning
3 • bcs-general
4 • bcs-play
5 • bcs-wellness
6 • bcs-work
7 • breaktime
8 • database
9 • gimme-some-memes
10 • help
11 • legislation
12 • maplelake
13 • maplelakeprotest
14 • morning-tea
15 • old-general-dnu
16 • on-the-up-and-up
17 • policynews
18 • project-amplifying-neurodiverse-survivors
19 • project-tti-law-circle
20 • rapid-response-events
21 • technical-enablement
22 • testing
23 • utah
24 • virtual-coffee-chats
25 • what-the-slack
26 These documents were reviewed and responsive documents produced in
27 volumes BCS013 and BCS014 on May 1, and May 4, 2023, respectively. Kiker

28 Decl. at ¶ 5.

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1 Plaintiff continued to work with Consilio to collect the private channels and
2 individual account direct messages that had been identified through discovery or by

3 Plaintiff’s witnesses as having responsive information. While the private channels

4 and direct messages were not available for export with Plaintiff’s Slack subscription,

5 Plaintiff and Consilio have since collected private Slack channels pertaining to

6 BCS’s investigation into suspected malicious activity in its environment, team-

7 information-security, and direct messages from the accounts of the following

8 individuals:

9 • Noelle Beauregard
10 • Bill Boyles
11 • Vanessa Hughes
12 • Jesse Jensen
13 • Jenny Magill
14 • Katie McNamara
15 • Jeremy Whiteley
16 Kiker Decl. at ¶ 9. BCS is reviewing this material and will produce responsive

17 documents no later than July 14, 2023. As a result, this motion is unnecessary.

18 In addition to these productions, on June 26, 2023, Defendants and their
19 expert directly inspected Plaintiff’s Slack account. Brown Decl. at ¶ 3. As demanded

20 by Defendants, Plaintiff provided Defendants’ expert with log-in credentials to the

21 following Slack accounts:

22 • info@breakingcodesilence.org
23 • vhughes@breakingcodesilence.org
24 • jjensen@breakingcodesilence.org
25 • nbeauregard@breakingcodesilence.org
26 • jmagill@breakingcodesilence.org
27 Defendants and their counsel spent over two hours directly reviewing Plaintiff’s

28 Slack account and had unfettered access to the accounts. Id. at ¶ 4. Defendants even

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1 performed key word searches on Slack communications and collected copies of

2 those communications. Id. at ¶ 4.

3 In light of Plaintiff’s efforts to collect Slack communications and Defendants’
4 unfettered direct access to the Slack communications during their inspection, this

5 motion was unnecessary. Plaintiff has never refused to produce these

6 communications and, in fact, will produce them by July 14, 2023.

7 B. Issue No. 2: Whether the Court Should Impose Monetary
8 Sanctions Against BCS and its Counsel
9 1. Defendants’ Contentions and Points and Authorities
10 Rule 37(a)(5) provides that if a motion to compel is granted – or if the
11 disclosure or requested discovery is provided after the motion is filed – the Court

12 must require the party whose conduct necessitated the motion – and /or its attorney

13 – to pay the moving party’s reasonable expenses in making the motion, including

14 attorney’s fees, unless (i) the movant filed the motion before attempting in good

15 faith to obtain the disclosure or discovery without court action, (ii) the opposing

16 party’s nondisclosure, response, or objection was substantially justified, or (iii) other

17 circumstances make an award of expenses unjust.

18 In addition, Rule 37(b)(2)(c) provides that the Court must order a party who
19 has violated a discovery order, the attorney advising that party, or both to pay the

20 reasonable expenses, including attorney’s fees, caused by the failure to comply with

21 the court order, unless the failure was substantially justified or other circumstances

22 make an award of expenses unjust.

23 Pursuant to these authorities, Defendants respectfully request that the Court
24 award $18,710 in sanctions against Plaintiff and DLA Piper to cover the costs of the

25 IDCs that Defendants’ counsel was forced to attend on this issue and the costs

26 associated with the instant motion to compel. (Tate Decl., ¶ 33.)
27

28

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1 2. Plaintiff’s Contentions and Points and Authorities
2 Federal Rule of Civil Procedure 37 does not require, nor support, the award of
3 sanctions in this case. The Rule specifically states that the Court should not award

4 monetary sanctions where, as here, “(i) the movant filed the motion before

5 attempting in good faith to obtain the disclosure or discovery without court action.”

6 Fed. R. Civ. P. 37(a)(5)(A). Here, the motion was unnecessary and, therefore,

7 sanctions should not be awarded.

8 As described in detail above, Plaintiff has been making efforts since
9 November 2022 to produce Slack communications. Given the limits of Plaintiff’s

10 Slack license, it has not been a straightforward process. Nonetheless, at least by June

11 19, Defendants knew Plaintiff was willing to at a minimum take screen shots of the

12 Slack communications regarding Defendants’ unauthorized access and the resulting

13 investigation. See Tate Decl. at Ex. 9. Accordingly, this motion was unnecessary.

14 Moreover, Plaintiff’s efforts to collect Slack communications were consistent
15 with the EDO. The EDO is expressly subject to the FRCP and industry standard

16 practices. Specifically, the EDO states, “The Parties agree to take into account the

17 proportionality considerations addressed in Federal Rules of Civil Procedure for

18 purposes of preservation and production of ESI and hard copy documents in this

19 Action.” Dkt. 41 § 6.1 (emphasis added). The EDO further states, “Each Producing

20 Party shall design and implement the industry standard and approved methods it

21 uses to identify, cull, and review its potentially responsive ESI based on its

22 knowledge and understanding of its own data, the facts and issues involved in the

23 Action,” and “A Producing Party may also conduct a targeted collection of sources

24 likely to contain responsive materials (e.g., file folders on a given hard drive).” Id. §

25 4.5 (emphasis added). These provisions of the EDO expressly allow Plaintiff to

26 work with Consilio on the most efficient way to collect Slack communications.
27 Since the documents were produced well before the close of discovery, Plaintiff’s

28 efforts did not prejudice Defendants. There is accordingly no basis for sanctions

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1 against Plaintiff or its counsel.

2 Under circumstances like these, the Court has rejected the award of sanctions.
3 In Bryant v. Mattel, Inc., for instance, the Court considered whether to sanction

4 Bryant for his failure to produce communications with a third party. Bryant v.

5 Mattel, Inc., Case Nos. C 04-09049 SGL (RNBx), 2007 WL 5430887 at *1 (C.D.

6 Cal. June 20, 2007). The Court granted the motion but denied sanctions because “[a]

7 day before the opposition brief was due, Bryant offered to produce the

8 communication ….” Id. at *1n.1. Here, the sanctions are less warranted than in

9 Bryant. Prior to the filing of this motion, Plaintiff confirmed to Defendants that it

10 would produce at least screen shots of the Slack communications which rendered

11 this motion unecessary.

12 IT IS SO STIPULATED.
13

14 DATED: July 12, 2023 JULANDER, BROWN & BOLLARD
15

16 By: /s/ M. Adam Tate
17 M. Adam Tate
Catherine Close
18 Attorneys for Defendants
19 KATHERINE MCNAMARA and
JEREMY WHITELEY
20

21
DATED: July 12, 2023 DLA PIPER LLP
22

23
By: /s/ Tamany Bentz
24 Tamany Bentz
25 Jason Lueddeke
Michael P. Brown
26 Benjamin Grush
27 Attorneys for Plaintiff
BREAKING CODE SILENCE
28

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1 ATTESTATION
2
All other signatories listed, and on whose behalf the filing is submitted,
3
concur in the filing’s content and have authorized the filing.
4

5
/s/ M. Adam Tate
6 M. ADAM TATE
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 12th 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\900435176.3 CERTIFICATE OF SERVICE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 1 of 15 Page ID #:2840

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

15
DECLARATION OF M. ADAM
16 Plaintiff, TATE IN SUPPORT OF JOINT
17 STIPULATION RE: DEFENDANTS
KATHERINE MCNAMARA AND
18 vs. JEREMY WHITELEY’S MOTION
19 TO COMPEL SLACK
COMMUNICATIONS AND FOR
20 SANCTIONS
KATHERINE MCNAMARA, an
21 Individual; JEREMY WHITELEY, an
individual; and DOES 1 through 50,
22 inclusive,

23 [Assigned to the Hon. Maria A. Audero] 24 Defendants.
25

26
27

28

1
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 2 of 15 Page ID #:2841

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 to (1) Compel Production of Slack Communications and (2) for

8 Sanctions. I have personal knowledge of the following facts, and if called upon to

9 testify, I could and would competently testify thereto.

10 2. On June 14, 2022, my office, on behalf of McNamara, propounded a
11 set of requests for production. Request for Production of Documents No.15 states:

12 “Please PRODUCE all Slack chat messages and logs for BCS from March 14, 2021

13 to the present, including audit logs reflecting any alterations and deletions.” A true

14 and correct copy of the Requests for Production is attached hereto as Exhibit 1.

15 3. On July 29, 2022, Plaintiff responded to Request No. 15 asserting a
16 litany of boilerplate objections but then stating “Subject to and without waiving the

17 foregoing objections, Plaintiff will produce responsive, non-privileged documents

18 that relate to the claims or defenses in this action, to the extent any exist.” A true

19 and correct copy of Plaintiff’s responses to the Requests for Production is attached

20 hereto as Exhibit 2.

21 4. On September 13, 2022, the Court issued the stipulated E-Discovery
22 Order (the “EDO”). Among other things, the EDO provides that the parties would

23 collect documents from each of the data sources identified in Section 4.4, including

24 Slack communications, for each of the custodians listed in Section 4.3. (Dkt. 52,

25 §4.4.) Section 7.1 then provides that “[t]he Parties will produce, on a rolling basis,

26 ESI from the data sources and Custodians identified in paragraph 4.3 and 4.4” (Dkt.
27 52, §7.1). Thus, the Court has ordered Plaintiff to collect and produce the relevant

28 Slack communications.

2
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 3 of 15 Page ID #:2842

1 5. Although Plaintiff has produced these screenshots, Plaintiff did not
2 produce the actual native Slack communications. These screenshots show that there

3 are relevant Slack communications which Plaintiff has the ability to access that

4 Plaintiff has not produced. Further, most of the screenshots produced by Plaintiff

5 show only portions of conversations and withhold other critical communications.

6 Unfortunately, none of the screenshots cover the time period in March 2022, when

7 Plaintiff conducted its investigation into the alleged “de-indexing.”

8 6. On April 19, 2023, I attended the first of the Informal Discovery
9 Conferences (“IDC 3” or collectively the “IDCs”) between the parties regarding

10 Plaintiff’s failure to comply with the EDO. Following IDC 3, the Court ordered

11 Plaintiff to provide a chart that lists the custodians identified in section 4.3 of the

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

13 EDO on the other axis, and indicate whether or not the particular data sources had

14 been searched for each custodian. (See Dkt. 52.)

15 7. On April 24, 2023, I received an email from Plaintiff’s counsel
16 attaching the chart ordered by the Court. As per the chart, Plaintiff had gathered and

17 reviewed 1,148 Slack documents, but the documents had not been produced. A true

18 and correct copy of the chart is attached hereto as Exhibit 3.

19 8. Later that day, I attended another IDC (“IDC 4”). During the IDC,
20 Dennis Kiker (“Kiker”) at DLA Piper confirmed that the Slack documents had not

21 been produced and he also represented that Plaintiff had produced four “Slack Audit

22 Logs.”

23 9. Following IDC 4, I asked Mr. Kiker to identify the Slack Audit Logs as
24 I did not believe any had been produced. In response, Kiker identified as

25 BCS0000316 – BCS0000319. The documents identified by Mr. Kiker are not Slack

26 Audit Logs, but they do provide some helpful information.. A true and correct copy
27 of my correspondence with Mr. Kiker is attached hereto as Exhibit 4.

28

3
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 4 of 15 Page ID #:2843

1 10. On May 1, 2023, the parties attended another IDC, which the Court
2 named “IDC 5.” Inasmuch as the Slack communications still had not been produced,

3 the Court ordered the production of the Slack communications by May 5, 2023. The

4 Court also ordered that “[s]hould Defendants, upon review of the production,

5 contend, on the basis of reasonable non-speculative belief, that Plaintiff is

6 withholding relevant, non-privileged documents, they may file a discovery motion

7 pursuant to Federal Rule of Civil Procedure (“Rule”) 37.” (Dkt. 56.)

8 11. On May 4, 2023, Mr. Kiker sent me an email indicating that Plaintiff
9 had produced a total of 35 Slack documents and that no documents were being

10 withheld on the basis of privilege. A true and correct copy of Mr. Kiker’s May 4,

11 2023 email is attached hereto as Exhibit 5.

12 12. Later that day, I sent a follow up email asking for the bates numbers of
13 the 35 slack documents and then asking counsel to explain how there could only be

14 35 total Slack documents if Jesse Jensen testified to hundreds of Slack messages. A

15 my May 4, 2023 email is attached hereto as Exhibit 6.

16 13. In a follow up email the next day, Mr. Kiker identified the 35 Slack
17 documents as BCS_0574083 – BCS_0574185; BCS_0574539 – BCS_0574545. All

18 of the documents identified by Mr. Kiker are dated between May 31, 2021 and

19 August 17, 2021 – well before the alleged “de-indexing” incident and investigation

20 in March 2022. It also appears that all of the documents were taken from Plaintiff’s

21 “public” Slack channels. No documents appear to have been produced from the

22 “private” Slack channels or direct messages (i.e. where you expect the relevant

23 communications to be). For the Court’s reference, all 35 documents are collectively

24 attached hereto as Exhibit 7.

25 14. On May 18, 2023, I sent an email to Mr. Kiker asking him to confirm
26 that (1) the only communications produced were from the public Slack channels, (2)
27 Plaintiff did not contact Slack to request the ability to export data from the private

28 channels and direct messages, and (3) Plaintiff also did not manually pull up the

4
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 5 of 15 Page ID #:2844

1 private Slack channels or the direct messages in order to be able to produce the

2 relevant Slack communications. To date, Mr. Kiker has not responded to this email.

3 A true and correct copy of the May 18, 2023 email is attached hereto as Exhibit 8.

4 15. Having not heard anything from Mr. Kiker, and relying on Mr. Kiker’s
5 statement that Plaintiff was contending that it had produced every “marginally

6 relevant document,” Defendants filed a motion to compel on June 14, 2023. The

7 motion to compel largely showed that relevant Slack documents exist that are not

8 included in the 35 Slack communications identified by Mr. Kiker. However, the

9 Court struck the motion due to Defendants’ failure to submit this joint statement in

10 compliance with Local Rule 37-2.

11 16. In anticipation of refiling the motion in the form of this Joint
12 Statement, I sent an email to Plaintiff’s counsel seeking to further narrow the issues

13 in dispute. In response, on June 19, 2023, Plaintiff completely changed its story.

14 Instead of representing that all of the relevant documents had been produced,

15 Plaintiff’s counsel, Tamany Bentz, stated, “As we have previously informed you,

16 BCS’s Slack license does not provide for export of private channels or DMS.” A

17 true and correct copy of Ms. Bentz’s email is attached hereto as Exhibit 9. Ms.

18 Bentz’s statement is false. Prior to this email, Plaintiff had never taken the position

19 that it was unable to collect from the private channels or direct messages and, as

20 discussed below, Slack allows for export of private channels and direct messages

21 regardless of license where there is a valid legal process.

22 17. That same day, I informed Ms. Bentz that her representation was
23 incorrect and provided a document from Plaintiff’s own e-discovery vendor,

24 Consilio, stating that Consilio has the ability to produce communications from

25 private channels and direct messages regardless of what license Plaintiff has. My

26 email further asked if Plaintiff could provide something from Consilio that would
27 support the position that Plaintiff could not produce the private channels and direct

28 messages. A true and correct copy of my email with the Consilio document is

5
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 6 of 15 Page ID #:2845

1 attached hereto as Exhibit 10.

2 18. Later that day, Mr. Kiker confirmed that Plaintiff had not previously
3 taken the position that it was unable to produce the Slack communications. Mr.

4 Kiker then pointed to a Slack webpage which supposedly showed that only entities

5 with Business+ or Enterprise Grid level Slack licenses can export private channels

6 and direct messages directly. A true and correct copy of Mr. Kiker’s email is

7 attached hereto as Exhibit 11.

8 19. In response, on June 19, 2023, I pointed Mr. Kiker to another portion of
9 Slack’s website which explains that, regardless of the level, workplace owners may

10 contact Slack and apply to export data from private channels and direct messages

11 when subject to a valid legal process. I asked whether Plaintiff had done this. I also

12 reiterated my request that I be provided something from Consilio to the effect that

13 Consilio could not collect the private channel communications and direct messages.

14 A true and correct copy of my email is attached hereto as Exhibit 12.

15 20. In response, Mr. Kiker effectively dodged both questions. He did not
16 provide anything from Consilio stating that the documents could not be collect, nor

17 did he answer the question of whether anyone from BCS ever asked Slack about the

18 ability to export BCS’ messages. A true and correct copy of Mr. Kiker’s email is

19 attached hereto as Exhibit 13.

20 21. On June 20, 2023, I asked for the third time if Plaintiff had contacted
21 Slack to apply to export data from private channels and direct messages. Exhibit 14.

22 Mr. Kiker admitted that Slack informed Plaintiff that it could provide the direct

23 messages and private channel messages for an “associated cost.” Apparently,

24 Plaintiff did not even ask what the cost would be. A true and correct copy of this

25 email chain is attached hereto as Exhibit 15.

26 22. Finally, I asked whether the cost to have Slack provide the documents
27 was the only reason why Plaintiff had failed to produce the Slack documents from

28 the private channels and direct messages. Mr. Kiker did not respond to this email. A

6
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 7 of 15 Page ID #:2846

1 true and correct copy of my email is attached hereto as Exhibit 16.

2 23. On March 31, 2023, I took the deposition of Noelle Beauregard. Ms.
3 Beauregard testified that there was a Slack communication in which she discussed

4 the “de-indexing” with other team members of BCS. She also testified that this

5 Slack communication likely occurred around March 11, 2022. Additionally, Ms.

6 Beauregard testified that she sent all of the screenshots that she took (approximately

7 25) to the BCS team, including Jenny Magill, through Slack. A true and correct

8 copy of relevant portions of Noelle Beauregard’s Deposition Transcript is attached

9 hereto as Exhibit 17.

10 24. On April 14, 2023 I took the deposition of Jesse Jensen in his capacity
11 as the Person Most Qualified for BCS. Jesse Jensen also testified that he

12 communicated with the leadership team via Slack. When he was asked to ballpark

13 the number of Slack communications between BCS members relating to the

14 allegations against Defendants, his response was “[l]ess than 300” and he went on to

15 explain that “there was a lot of information that went back and forth there…” A true

16 and correct copy of relevant portions of Jesse Jensen’s, as BCS’s Person Most

17 Qualified, Deposition Transcript is attached hereto as Exhibit 18.

18 25. Despite this testimony, none of the 35 Slack documents identified by
19 Mr. Kiker include Noelle Beauregard or Jesse Jensen at all. Further, none of the

20 35 Slack documents identified by Mr. Kiker are even dated in the same year that

21 Ms. Beauregard and Jesse Jensen conducted their investigation.

22 26. I have also compared the 35 Slack Communications as well as the
23 Presumptive Slack Communications against the logs that Plaintiff has provided.

24 According to the log Bates numbered BCS0000316, the following messages were

25 sent on Slack between March 9, 2022, and March 14, 2022:

26
27

28

7
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 8 of 15 Page ID #:2847

1 Date Daily Public Private Direct Files
2 Active Channel Channel Messages Uploaded
3 Members Messages Messages
4 3/9/22 20 11 21 55 5
5 3/10/22 21 7 10 200 36
6 3/11/22 19 12 9 57 5
7 3/12/22 15 0 18 84 55
8 3/13/22 19 12 20 43 4
9 3/14/22 19 16 73 48 7
10 Total N/A 58 151 487 112
11

12 A true and correct copy of the Slack log BCS produced as BCS0000316 is
13 attached hereto as Exhibit 19.

14 27. From the above chart, it appears that a relatively small group of
15 approximately twenty persons, sent more than six hundred direct messages and

16 private channel messages in the six days following the alleged temporary removal

17 request allegedly made on March 9, 2022. None of these messages are included in

18 the 35 documents identified by Mr. Kiker. Even if we include the Presumptive

19 Slack Communications, Plaintiff has only produced a total of 289 unique messages

20 during the six-day time period. Moreover, during that same time period, Plaintiff’s

21 leadership team appears to have uploaded 112 documents, but the Presumptive

22 Slack Communications only show 17 documents being uploaded.

23 28. Some of the documents that BCS has produced in this action contain
24 communications between Vanessa Hughes, Jennifer Magill and Chelsea Papciak

25 also known as Chelsea Filer (“Papciak”). These communications include:

26 a.
27

28 A true and correct copy of

8
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 9 of 15 Page ID #:2848

1 this email chain as produced by Plaintiff is attached hereto as Exhibit 20.

2 b.
3

4

5

6 A true and correct copy of the email with edits of a Proposed
7 Agreement as produced by Plaintiff is attached hereto as Exhibit 21.

8 c.
9

10

11 A true and
12 correct copy of the “Proposed Agreement” as produced by Plaintiff is attached

13 hereto as Exhibit 22.

14 d. An email from Magill to Jenna Bulis, Hughes and Papciak which
15 states in relevant part “We set up a Slack Connect channel for the four of us to

16 continue discussion and collaborate on things like this. I sent you both an invite to

17 join…” A true and correct copy of this email as produced by Plaintiff is attached

18 hereto as Exhibit 23.

19 29. As these communications indicate there was some kind of agreement to
20 sue my clients, and many of them predated the alleged “de-indexing” of the .Org

21 domain, my office investigated further into the relationship between Papciak and

22 BCS. Knowing about Breaking Code Silence v. Papciak, et al., SDCA Case No. 21-

23 cv-00918-BAS-DEB, a case initiated by Plaintiff against Papciak and others in May

24 13, 2021, my office pulled up the docket and found some suspicious overlap in

25 dates.

26 30. On August 2, 2021, Papciak and her co-defendants filed a motion to
27 dismiss arguing that Plaintiff did not own the rights to the Breaking Code Silence

28 mark. In conjunction therewith, Papciak submitted a declaration showing that the

9
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 10 of 15 Page ID #:2849

1 Breakingcodesilence.net domain and social media accounts were not created for

2 Plaintiff’s benefit as they were created well before Plaintiff was even organized. A

3 true and correct copy of Papciak’s declaration in support of her motion to dismiss is

4 attached hereto as Exhibit 24.

5 31. On February 11, 2022, the same day that Magill set up the Slack
6 channel with Bulis, Hughes and Papciak, the Southern District of California granted

7 the motion to dismiss finding that “BCS does not plausibly allege that it is the owner

8 of the mark through its own use.” (2022 WL 432544)

9 32. On March 8, 2022, the day that the first (unsuccessful) de-indexing
10 request to the .Org Domain was allegedly submitted, the Southern District issued an

11 order to show cause why it should not dismiss the Papciak Action. On March 9,

12 2022, the day that the final (successful) de-indexing request to the .Org Domain was

13 allegedly submitted, Plaintiff filed a notice of voluntarily dismissal.

14 33. Defendants should be entitled to discover what is in the Slack channel
15 between Plaintiff and Papciak. As shown above, there is at least the possibility that

16 the Slack communications contain evidence that the instant action is entirely

17 pretextual, and may even reveal not just a plot to sue Defendants, but also a plot to

18 de-index the website and blame Defendants for doing so.

19 The Court Should Issue Monetary Sanctions
20 34. The following costs have been incurred in connection with this issue:
21 a. M. Adam Tate
22 i. I started as an associate for JBB in September 2016 and
23 am now a partner. I received my J.D., with honors, from the J. Rueben Clark
24 Law School (BYU) in 2011. I have practiced commercial litigation in Orange
25 County since passing the bar in 2011. I am an experienced trial and appellate
26 attorney.
27 ii. I have been lead counsel on this matter since this action
28 was filed. I spent over 14.0 hours meeting and conferring with opposing

10
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 11 of 15 Page ID #:2850

1 counsel, appearing at the many IDCs, and drafting this Motion and supporting
2 declarations. My billing rate for this matter was $425.00 per hour until
3 February 2023 when it was increased to $470.00 upon becoming a partner in
4 the firm. Hourly rates for senior associates/partners in commercial litigation
5 firms such as JBB with my experience in Los Angeles and Orange County
6 typically meet or exceed this hourly rate.
7 iii. It is anticipated that I will spend an additional 5.0 hours in
8 reviewing Plaintiff’s Opposition to this Motion, drafting the Reply to
9 Opposition, and appearing at the hearing on this Motion.
10 iv. In total, Defendants have, and will, reasonably incur
11 $8,930 for my time connection with this Motion.
12 b. Catherine A. Close
13 i. Ms. Close has been an associate with JBB since May
14 2002. She received her J.D., with honors, from the Whittier College School of
15 Law in 1998. She has practiced commercial litigation in Orange County since
16 passing the bar in 1998. She is an experienced trial lawyer, participating in
17 numerous trials of complex business matters in both state and federal courts.
18 She has also drafted many appellate briefs.
19 ii. Ms. Close is the senior associate on this matter and has
20 spent 5.2 hours appearing at IDC on May 1, 2023, reviewing and revising the
21 moving papers, and preparing the accompanying Application to Seal and
22 supporting declaration and order. Her billing rate for this matter has been
23 between $430.00 (2022) and $450.00 (since January 2023) per hour. Based
24 on her experience, hourly rates for senior litigation associates with her
25 experience in business litigation firms in Los Angeles and Orange County
26 typically meet or exceed her hourly rate.
27 iii. It is anticipated that Ms. Close will spend an additional 2.0
28 hours in reviewing Plaintiff’s Opposition to this Motion, drafting the Reply to

11
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 12 of 15 Page ID #:2851

1 Opposition, and appearing at the hearing on this Motion.
2 iv. In total, Defendants have, and will, reasonably incur
3 $3,240 for Ms. Close’s connection with this Motion.
4 c. Adam J. Schwartz
5 i. Adam J Schwartz has been a solo practitioner since 2012.
6 Prior to that time, he was a litigation associate at Paul Hastings for nearly five
7 years. Mr. Schwartz received his J.D., with honors, from The George
8 Washington University Law School in Washington, D.C. in 2007, where he
9 was a member of the International Law Review and was a Thurgood Marshall
10 Scholar his 1L year. Mr. Schwartz has practiced white collar criminal and
11 commercial litigation in Washington, D.C. and Los Angeles County since
12 passing the bar in 2007. He is admitted to practice law in both California and
13 the District of Columbia. He is an experienced litigator, with experience in
14 business disputes, as well as white collar criminal, employment, defamation,
15 copyright, and trademark matters.
16 ii. Mr. Schwartz has worked as an independent contractor
17 assisting JBB in this action since July 2022 and became co-counsel for
18 Defendants in this action in August 2022. Mr. Schwartz has spent 7.0 hours
19 meeting and conferring with opposing counsel, appearing at IDCs, and
20 assisting in preparing this Motion. Mr. Schwartz’s billing rate for this matter
21 is $300.00 and, based on over 15 years of civil litigation experience, the rate
22 charged on this matter is the usual and customary rate Mr. Schwartz charges
23 for legal work performed in the Los Angeles area. Hourly rates for
24 commercial litigators with Mr. Schwartz’s experience in Los Angeles and
25 Orange County typically meet or exceed this hourly rate.
26 iii. It is anticipated that Mr. Schwartz will spend an additional
27 1.0 hour in reviewing Plaintiff’s Opposition to this Motion, drafting the Reply
28 to Opposition, and appearing at the hearing on this Motion.

12
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 13 of 15 Page ID #:2852

1 iv. In total, Defendants have, and will, reasonably incur
2 $2,400 for Mr. Schwartz’s connection with this Motion.
3 d. Rebekah Chamberlin
4 i. Rebekah Chamberlin has worked for JBB as a law clerk
5 since August 2021. She passed the California Bar this last month and was
6 recently promoted to be an associate attorney. Ms. Chamberlin received her
7 J.D. from the J. Rueben Clark Law School (BYU) in 2021.
8 ii. Ms. Chamberlin spent 19.6 hours assisting the attorneys
9 with legal research with respect to this Motion, preparing this Motion and the
10 analysis of the deficiencies in Plaintiff’s document productions. Ms.
11 Chamberlin’s billing rate for this matter is $150.00 an hour. Based on my
12 experience, hourly rates for law clerks with Ms. Chamberlin’s experience in
13 business litigation firms in Los Angeles and Orange County typically meet or
14 exceed this hourly rate.
15 iii. In total, Defendants have, and will, reasonably incur
16 $2,940 for Ms. Chamberlin’s time connection with this Motion.
17 e. Helene Saller
18 i. Helene Saller has worked for JBB as a litigation paralegal
19 since 2019, specializing in legal research and filings, trial preparation,
20 discovery and document control. She studied political science at Arizona
21 State University and received her paralegal certificate from Pasadena City
22 College in 1992. She has worked in the legal industry since 1992 for both
23 large and small firms, with extensive experience in the areas of civil practice,
24 employment law, medical malpractice, and complex litigation.
25 ii. Ms. Saller has been the lead paralegal in this matter since
26 this action was filed. Ms. Saller has spent 4.5 hours helping to prepare this
27 instant motion. Ms. Saller’s billing rate for this matter is $200.00 an hour.
28 Based on my experience, hourly rates for senior litigation paralegals with Ms.

13
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 14 of 15 Page ID #:2853

1 Saller’s experience in business litigation firms in Los Angeles and Orange
2 County typically meet or exceed this hourly rate.
3 iii. It is anticipated that Ms. Saller will spend an additional 1.5
4 hours in processing Plaintiff’s Opposition to this Motion, and finalizing the
5 Reply to Opposition.
6 iv. In total, Defendants have, and will, reasonably incur
7 $1,200 for Ms. Saller’s time connection with this Motion.
8 f. In total, Defendants have, and will, reasonably incur $18,710 in
9 attorneys’ fees and costs in connection with this Motion, which could have
10 been avoided.
11

12 I declare under penalty of perjury under the laws of the United States that the
13 foregoing is true and correct.

14 Executed July 12, 2023, at Irvine, California.
15

16 /s/ M. Adam Tate
M. ADAM TATE
17

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14
DECLARATION OF M. ADAM TATE
Case 2:22-cv-02052-MAA Document 94-1 Filed 07/12/23 Page 15 of 15 Page ID #:2854

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 12th 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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13

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CERTIFICATE OF SERVICE
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 1 of 15 Page ID #:2855

EXHIBIT 1
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 2 of 15 Page ID #:2856

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 JEREMY
8 WHITELEY
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12 BREAKING CODE SILENCE, a Case No. 2:22-cv-002052-SB-MAA
California 501(c)(3) nonprofit,
13
Plaintiff,
14
vs. DEFENDANT KATHERINE
15
KATHERINE MCNAMARA, an MCNAMARA’S FIRST REQUEST
16 Individual; JEREMY WHITELEY, an FOR PRODUCTION OF
individual; and DOES 1 through 50, DOCUMENTS TO PLAINTIFF
17 inclusive,
18 Defendants.
19
20 Pursuant Federal Rules of Civil Procedure 26 and 34 and Local Rule 34,
21 Defendant KATHERINE MCNAMARA (“Defendant”) hereby submits the
22 following First Set of Requests for Production of Documents (the “Discovery
23 Request”) to Plaintiff BREAKING CODE SILENCE (hereinafter “Plaintiff”).
24 Pursuant to the Federal Rules of Civil Procedure, Plaintiff’s response to this
25 Discovery Request must be served upon Defendant’s counsel at the offices of
26 Julander, Brown & Bollard, 9110 Irvine Center Drive, Irvine, California 92618,
27 within thirty (30) days from the date of service hereof or within such shorter period
28 of time as the Court may order.
15

MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 3 of 15 Page ID #:2857

1 INSTRUCTIONS
2 For the purposes of this Discovery Request, the following instructions apply:
3 1. This Discovery Request is continuing in nature and, pursuant to Rule
4 26(e) of the Federal Rules of Civil Procedure, you are under a duty to seasonably
5 supplement your responses with any information subsequently obtained by you or
6 any change in circumstances rendering your responses to this Discovery Request
7 incomplete or inaccurate.
8 2. You are required to provide all information that is available to you,
9 including information in possession of your present and former attorneys,
10 accountants, representatives, agents, or other person acting on your behalf. If any
11 information called for by any Discovery Request is not available in the full detail
12 requested, such Request shall be deemed to require you to set forth the information
13 related to the subject matter of the request in such detail as is available, including a
14 description of the method by which an estimate is made.
15 3. As to all documents produced in response to this Discovery Request,
16 identify the document request to which each document is responsive.
17 4. If you decline to produce any requested information or document on the
18 grounds of attorney-client privilege, work product doctrine, or any other privilege,
19 then: (a) state the nature of the privilege relied upon and each and every fact giving
20 rise to the alleged privilege; (b) describe fully the extent to which the privilege is
21 being asserted; (c) identify the information or document in accordance with
22 paragraph 4 of the Definitions section of this Discovery Request; and (d) if the
23 production of a document is withheld on the grounds of the work product doctrine,
24 identify the proceeding for which the document was, or has been, prepared and
25 identify all persons receiving a copy of the document with a description of the
26 document’s subject matter.
27
28
16
2
MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 4 of 15 Page ID #:2858

1 5. If you contend that any communication or document that you are asked
2 to identify or produce is confidential, in addition to identifying each such
3 communication or document, state the basis for the claim of confidentiality.
4 6. Any term not defined in the following Definitions section refers to its
5 usage, if any, in the Complaint filed in this action.
6 DEFINITIONS
7 For the purposes of this Discovery Request, the following definitions apply
8 unless otherwise indicated:
9 1. The terms “PERSON” or “PERSONS” mean and include any natural
10 persons, corporations, associations, partnerships, and/or any other business entity.
11 2. The terms “YOU” and “YOUR” and “BCS” mean and refer to Plaintiff
12 BREAKING CODE SILENCE and any PERSON or PERSONS acting on its
13 behalf including, but not limited to: its employees, agents, representatives, and all
14 other PERSONS acting on its behalf, in concert with it, or under its control, whether
15 directly or indirectly.
16 3. The term “MCNAMARA” means and refers to Defendant
17 KATHERINE MCNAMARA and any PERSON or PERSONS acting on her
18 behalf.
19 4. The term “WHITELEY” means and refers to Defendant JEREMY
20 WHITELEY and any PERSON or PERSONS acting on his behalf.
21 5. The term “DEFENDANTS” refers collectively to MCNAMARA and
22 WHITELEY, or to either of them.
23 6. The terms “DOCUMENT” or “DOCUMENTS” mean and include
24 any writing including, but not limited to, any writing and any other tangible things
25 in YOUR custody, possession or control, or known to YOU, whether printed,
26 recorded, reproduced by any process, or written or produced by hand, including, but
27 not limited to, letters, reports, agreements, telegrams, maps, flyers, business cards,
28 brochures, advertisements, memoranda, summaries of records, summaries of
17
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MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 5 of 15 Page ID #:2859

1 personal conversations, diaries, minutes or records of meetings or conferences,
2 expressions or statements of policy, lists of persons attending meetings or
3 conferences, reports and/or summaries of interviews, reports and/or summaries of
4 investigations, opinions or reports of consultants, pamphlets, drafts of any
5 documents, revisions of drafts of any documents, invoices, receipts, original or
6 preliminary notes, diagrams, models and photographs by any and all means created.
7 The terms DOCUMENT and/or DOCUMENTS, as used herein, shall also include
8 all ESI. The foregoing shall further include, but not be limited to documents or files
9 in their native, electronic format. As to each document, any comment or notation
10 appearing on the same, but not a part of the original text, is to be considered a
11 separate DOCUMENT.
12 7. The term “ESI” means and includes each and every form of matter, of
13 any kind, type, nature, or description, that is or has been in YOUR possession,
14 custody, or control, including DOCUMENTS, electronic mail, voicemail, word
15 processing documents, spreadsheets, databases, images, and sound recordings,
16 which is generated, recorded, preserved or maintained by electronic means or in
17 electronic form, including information generated, recorded, preserved or maintained
18 on computer hard drives, floppy disks, e-mail, computer files, deleted computer
19 files, mirror image files, file menus, file directories, file distribution lists,
20 acknowledgment of receipt files, backup computer files, magnetic tapes, computer
21 archives, computer memory, computer disk, computer card, film, microfilm,
22 microfiche, microforms, photographs, or any other form of computer readable
23 storage media, and also including drafts or copies of any of the foregoing that
24 contain any notes, comments, metadata, or markings of any kind not found on the
25 original ESI or that are otherwise not identical to the original ESI.
26 8. The term “PRODUCE” means and includes the actual production of
27 the original of the DOCUMENT. Electronically stored information is generally to
28 be produced in: (a) its commercially accessible native file format; and (b) in PDF
18
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MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 6 of 15 Page ID #:2860

1 Format. Documents created in a CSV, Excel, or PowerPoint format should be
2 produced as native files.
3 9. The terms “COMMUNICATION” or “COMMUNICATIONS” mean
4 the exchange or transmission of information of any kind to any PERSON, whether
5 accomplished by PERSON to PERSON, by telephone, or any other medium
6 including, but not limited to, discussions, conversations, negotiations, conferences,
7 meetings, speeches, memoranda, letters, electronic mail, voicemail, notes, texts,
8 instant and/or direct messaging platforms (including Slack, Facebook, Snapchat,
9 Instagram), statements or questions.
10 10. The terms “RELATE TO,” “RELATED TO” or “RELATING TO”
11 mean referring to, relating to, regarding, evidencing, supporting, constituting,
12 depicting, respecting, concerning, pertaining to, stating, describing, recording,
13 noting, reflecting, containing, embodying, memorializing, mentioning, studying,
14 analyzing, discussing, commenting on, specifying, listing, summarizing, refuting,
15 reviewing, or identifying, either directly or indirectly.
16 REQUESTS FOR PRODUCTION
17 REQUEST FOR PRODUCTION NO. 1:
18 Please PRODUCE all DOCUMENTS to which YOU referred in connection
19 with preparing YOUR response to the First Set of Interrogatories served
20 concurrently herewith, or which were identified or described by YOU in YOUR
21 response to the First Set of Interrogatories.
22 REQUEST FOR PRODUCTION NO. 2:
23 For each response to the First Set of Requests for Admissions served
24 concurrently herewith that is not an unqualified admission, please PRODUCE all
25 DOCUMENTS that support, undermine, contradict, or refute YOUR response to
26 that Request for Admission.
27
28
19
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MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 7 of 15 Page ID #:2861

1 REQUEST FOR PRODUCTION NO. 3:
2 Please PRODUCE all DOCUMENTS which RELATE TO YOUR allegation
3 that MCNAMARA engaged in a “pattern and practice of maliciously accessing
4 materials, social media accounts, third party platform accounts and a website
5 belonging to BCS in an attempt to shut BCS down” including, but not limited to,
6 any forensic analysis performed.
7 REQUEST FOR PRODUCTION NO. 4:
8 Please PRODUCE all DOCUMENTS RELATING TO the forensic analysis
9 or report on which YOU base the claims and allegations of YOUR Complaint that
10 DEFENDANTS improperly accessed and used, or denied BCS access, to any BCS
11 computer or account including, but not limited to: any analysis or report prepared;
12 all COMMUNICATIONS between YOU and the PERSON who prepared the
13 analysis or report including invoices; all DOCUMENTS that reflect the industry-
14 standard tools used to collect computer forensic evidence; all DOCUMENTS that
15 establish the chain-of-custody for the forensic evidence and nonrepudiation methods
16 used to preserve digital forensic evidence; and all raw digital forensic data used for
17 the creation of the forensic report and evidence of nonrepudiation.
18 REQUEST FOR PRODUCTION NO. 5:
19 Please PRODUCE the curriculum vitae or resume of all PERSONS
20 conducting the forensic analysis on which YOU base the claims and allegations of
21 YOUR Complaint that DEFENDANTS improperly accessed and used, or denied
22 BCS access, to any BCS computer or account.
23 REQUEST FOR PRODUCTION NO. 6:
24 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS,
25 which RELATE TO YOUR allegation that MCNAMARA “registered the domain
26 for the organization.”
27
28
20
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MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 8 of 15 Page ID #:2862

1 REQUEST FOR PRODUCTION NO. 7:
2 Please PRODUCE all DOCUMENTS which reflect or evidence BCS’s
3 policies prohibiting “…among other things, accessing data, a server, a network or an
4 account for any purpose other than conducting approved BCS business; revealing
5 BCS system passwords to others or allowing use of the individual’s account by
6 others; circumventing user authentication or security; providing information about,
7 or lists of, BCS users to parties outside BCS; and effecting security breaches or
8 disruptions of BCS system resources, including but not limited to accessing data of
9 which the individual is not an intended recipient or logging into a server or account
10 that the individual is not expressly authorized to access” as alleged in paragraph 53
11 of YOUR Complaint.
12 REQUEST FOR PRODUCTION NO. 8:
13 Please PRODUCE all COMMUNICATIONS between YOU and any
14 PERSON RELATING TO MCNAMARA’s assignment of the rights to the domain
15 to BCS, including MCNAMARA’s refusal to do so.
16 REQUEST FOR PRODUCTION NO. 9:
17 Please PRODUCE all DOCUMENTS RELATING TO reimbursement
18 requests submitted to YOU by MCNAMARA, including the requests submitted and
19 COMMUNICATIONS, board meeting minutes and resolutions RELATING TO
20 such requests.
21 REQUEST FOR PRODUCTION NO. 10:
22 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS and
23 digital evidence, RELATING TO YOUR removal of DEFENDANTS’ access to all
24 BCS accounts after their resignations.
25 REQUEST FOR PRODUCTION NO. 11:
26 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS and
27 digital evidence, RELATING TO any changes made by DEFENDANTS to the
28 passwords for any BCS accounts after DEFENDANTS’ resignations.
21
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MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 9 of 15 Page ID #:2863

1 REQUEST FOR PRODUCTION NO. 12:
2 Please PRODUCE all CloudWays logs from March 14, 2021 to the present,
3 including web server logs and audit logs reflecting any alterations and deletions.
4 REQUEST FOR PRODUCTION NO. 13:
5 Please PRODUCE all website access logs for BCS’s website from March 14,
6 2021 to the present.
7 REQUEST FOR PRODUCTION NO. 14:
8 Please PRODUCE all WordPress logs for BCS’s website from March 14,
9 2021 to the present.
10 REQUEST FOR PRODUCTION NO. 15:
11 Please PRODUCE all Slack chat messages and logs for BCS from March 14,
12 2021 to the present, including audit logs reflecting any alterations and deletions.
13 REQUEST FOR PRODUCTION NO. 16:
14 Please PRODUCE all Google download logs for BCS from March 14, 2021
15 to the present, including logs that support YOUR contention that DEFENDANTS
16 accessed and downloaded from restricted folders after they resigned or changed
17 permissions.
18 REQUEST FOR PRODUCTION NO. 17:
19 Please PRODUCE all Zoom call logs for BCS from March 14, 2021 to the
20 present, including audit logs reflecting any alterations and deletions.
21 REQUEST FOR PRODUCTION NO. 18:
22 Please PRODUCE all telephone bills and call logs for BCS from March 14,
23 2021 to the present.
24 REQUEST FOR PRODUCTION NO. 19:
25 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS, that
26 RELATE TO YOUR ownership of, or interest in, the Kmcnamara013 Hover.com
27 account including, but not limited to any registration DOCUMENTS, payment
28 receipts, contracts and assignments.
22
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MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 10 of 15 Page ID #:2864

1 REQUEST FOR PRODUCTION NO. 20:
2 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS, that
3 RELATE TO YOUR ownership of, or interest in, the
4 domain including, but not limited to any registration DOCUMENTS, payment
5 receipts, contracts, assignments and required Tucows/Hover disclosures.
6 REQUEST FOR PRODUCTION NO. 21:
7 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS, that
8 RELATE TO YOUR ownership of, or interest in, the @breakingcodesi1 Twitter
9 account including, but not limited to any registration DOCUMENTS, payment
10 receipts, contracts and assignments.
11 REQUEST FOR PRODUCTION NO. 22:
12 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS, that
13 RELATE TO YOUR ownership of, or interest in, the CloudWays account that
14 hosted BCS’s website between March 2021 and March 2022 including, but not
15 limited to any registration DOCUMENTS, invoices, payment receipts, contracts and
16 assignments.
17 REQUEST FOR PRODUCTION NO. 23:
18 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS, that
19 RELATE TO YOUR ownership of, or interest in, the Katherine@network-node.com
20 Zotero account including, but not limited to any registration DOCUMENTS,
21 payment receipts, contracts and assignments.
22 REQUEST FOR PRODUCTION NO. 24:
23 Please PRODUCE all COMMUNICATIONS with any other PERSON
24 (except YOUR outside counsel) RELATED TO DEFENDANTS including, but not
25 limited to, COMMUNICATIONS with, between and among, Bill Boyles, Vanessa
26 Hughes, Jennifer Magill, Chelsea Papciak (Filer), Jenna Bulis, Mary Appelgate,
27 Caroline Cole, Emily Carter, Jesse Jensen, Robert Cook, Nicole Beauregard, Athena
28 Kolbe, Megan Hurwitt, University of North Carolina Wilmington and associates,
23
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MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 11 of 15 Page ID #:2865

1 Lifetime and associates, The Doctors studios and associates, Loma Linda
2 University, University of California Los Angeles, Hilton Foundation, Carter Reum,
3 Paris Hilton, Rebecca Mellinger, 11:11 Media and associates, Paris Hilton
4 Entertainment and Eric Schmidt.
5 REQUEST FOR PRODUCTION NO. 25:
6 Please PRODUCE all COMMUNICATIONS with any other PERSON
7 (except YOUR outside counsel) RELATED TO the domain
8 including, but not limited to, COMMUNICATIONS
9 with, between and among, Bill Boyles, Vanessa Hughes, Jennifer Magill, Chelsea
10 Papciak (Filer), Jenna Bulis, Mary Appelgate, Caroline Cole, Emily Carter, Jesse
11 Jensen, Robert Cook, Nicole Beauregard, Athena Kolbe, Megan Hurwitt, University
12 of North Carolina Wilmington and associates, Lifetime and associates, The Doctors
13 studios and associates, Loma Linda University, University of California Los
14 Angeles, Hilton Foundation, Carter Reum, Paris Hilton, Rebecca Mellinger, 11:11
15 Media and associates, Paris Hilton Entertainment and Eric Schmidt.
16 REQUEST FOR PRODUCTION NO. 26:
17 Please PRODUCE all intellectual property contracts and assignments to
18 which BCS is a party.
19 REQUEST FOR PRODUCTION NO. 27:
20 Please PRODUCE all DOCUMENTS RELATING TO agreements between
21 YOU and Vanessa Hughes including, but not limited to, nondisclosure agreements,
22 volunteer agreements, compensation agreements, and board meeting minutes and
23 resolutions regarding same.
24 REQUEST FOR PRODUCTION NO. 28:
25 Please PRODUCE all DOCUMENTS RELATING TO agreements between
26 YOU and Jennifer Magill including, but not limited to, nondisclosure agreements,
27 volunteer agreements, compensation agreements, and board meeting minutes and
28 resolutions regarding same.
24
10
MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 12 of 15 Page ID #:2866

1 REQUEST FOR PRODUCTION NO. 29:
2 Please PRODUCE all DOCUMENTS RELATING TO agreements between
3 YOU and any PERSON RELATED TO Lifetime’s Cruel Instruction movie.
4 REQUEST FOR PRODUCTION NO. 30:
5 Please PRODUCE all COMMUNICATIONS between YOU and any
6 PERSON RELATED TO Lifetime’s Cruel Instruction movie.
7 REQUEST FOR PRODUCTION NO. 31:
8 Please PRODUCE all Board of Directors meeting minutes for BCS from
9 March 2021 to the present.
10 REQUEST FOR PRODUCTION NO. 32:
11 Please PRODUCE all audio, video or digital recordings of YOUR Board of
12 Directors meetings.
13 REQUEST FOR PRODUCTION NO. 33:
14 Please PRODUCE all BCS corporate resolutions from March 2021 to the
15 present.
16 REQUEST FOR PRODUCTION NO. 34:
17 Please PRODUCE all BCS financial records and reports from March 2021 to
18 the present including, but not limited to, balance sheets, cash flow statements,
19 income statements, bank statements and donation ledgers.
20 REQUEST FOR PRODUCTION NO. 35:
21 Please PRODUCE all DOCUMENTS RELATED TO BCS’ indebtedness
22 including, but not limited to, all loans, leases, notes and contracts.
23 REQUEST FOR PRODUCTION NO. 36:
24 Please PRODUCE all DOCUMENTS which RELATE TO the approval by
25 BCS’s Board of Directors to initiate litigation against DEFENDANTS including,
26 but not limited to, COMMUNICATIONS, meeting minutes and resolutions.
27
28
25
11
MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 13 of 15 Page ID #:2867

1 REQUEST FOR PRODUCTION NO. 37:
2 Please PRODUCE all DOCUMENTS which RELATE TO any monetary
3 harm YOU claim to have suffered as a result of DEFENDANTS’ conduct.
4 REQUEST FOR PRODUCTION NO. 38:
5 Please PRODUCE all DOCUMENTS which RELATE TO any data
6 impairment damages YOU claim to have suffered as a result of DEFENDANTS’
7 conduct.
8 REQUEST FOR PRODUCTION NO. 39:
9 Please PRODUCE all DOCUMENTS which RELATE TO any harm to
10 YOUR reputation or goodwill that YOU claim to have suffered as a result of
11 DEFENDANTS’ conduct.
12 REQUEST FOR PRODUCTION NO. 40:
13 Please PRODUCE all resignation letters or COMMUNICATIONS from
14 members of BCS’s Board of Directors.
15 REQUEST FOR PRODUCTION NO. 41:
16 Please PRODUCE all resignation letters or COMMUNICATIONS from
17 BCS’s volunteers.
18 REQUEST FOR PRODUCTION NO. 42:
19 Please PRODUCE all COMMUNICATIONS evidencing or RELATING TO
20 internal complaints RELATING TO BSC’s management.
21 REQUEST FOR PRODUCTION NO. 43:
22 Please PRODUCE YOUR entire case file for the action entitled Breaking
23 Code Silence v. Papciak, et al., CDCA Case No. 3:21-CV-00918 including all
24 pleadings, correspondence, filings, orders, discovery and settlement agreements.
25 REQUEST FOR PRODUCTION NO. 44:
26 Please PRODUCE all trademarks and trademark applications for Breaking
27 Code Silence and related names.
28
26
12
MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 14 of 15 Page ID #:2868

1 REQUEST FOR PRODUCTION NO. 45:
2 Please PRODUCE all DOCUMENTS that RELATE TO the registration and
3 administrative credentials for all BCS social media accounts, domains and archives,
4 including DOCUMENTS that RELATE TO changes, removals and revocations of
5 administrative rights to the accounts, domains and archives
6 REQUEST FOR PRODUCTION NO. 46:
7 Please PRODUCE all COMMUNICATIONS between YOU and Hover
8 RELATED TO the domain.
9 REQUEST FOR PRODUCTION NO. 47:
10 Please PRODUCE all DOCUMENTS IDENTIFIED or described by YOU in
11 YOUR Initial Disclosures served on June 7, 2022.
12
13 DATED: June 14, 2022 JULANDER, BROWN & BOLLARD
14
15 By:
16 Dirk O. Julander
Catherine A. Close
17 M. Adam Tate
18 Attorneys for Defendants
KATHERINE MCNAMARA and
19 JEREMY WHITELEY
20
Attorneys for Defendants
21
22
23
24
25
26
27
28
27
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MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-2 Filed 07/12/23 Page 15 of 15 Page ID #:2869

1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF ORANGE
3 At the time of service, I was over 18 years of age and not a party to this
4 action. I am employed in the County of Orange, State of California. My business
5 address is 9110 Irvine Center Drive, Irvine, CA 92618.
6 On June 14, 2022, I served true copies of the following document(s)
7 described as DEFENDANT KATHERINE MCNAMARA’S FIRST SET OF
8 REQUESTS FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF on the
9 interested parties in this action as follows:
10 Tamany J. Vinson Bentz
Jonathan D. Kintzele
11 DLA PIPER LLP
2000 Avenue of the Stars
12 Suite 400 North Tower
Los Angeles, California 90067-4704
13
Email: tamany.bentz@us.dlapiper.com;
14 jonathan.kintzele@us.dlapiper.com
15
BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court
16
order or an agreement of the parties to accept service by e-mail or electronic
17
transmission, I caused the document(s) to be sent from e-mail address
18
helene@jbblaw.com to the persons at the e-mail addresses listed in the Service List.
19
I did not receive, within a reasonable time after the transmission, any electronic
20
message or other indication that the transmission was unsuccessful.
21
I declare under penalty of perjury under the laws of the United States of
22
America that the foregoing is true and correct and that I am employed in the office
23
of a member of the bar of this Court at whose direction the service was made.
24
Executed on June 14, 2022, at Irvine, California.
25
26
27 Helene P. Saller
28
28

MCNAMARA’S FIRST SET OF REQUESTS FOR PRODUCTION TO PLAINTIFF
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 1 of 29 Page ID #:2870

EXHIBIT 2
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 2 of 29 Page ID #:2871

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
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12
13 BREAKING CODE SILENCE, a Case No. 2:22-cv-02052-MAA
California 501(c)(3) nonprofit,
14
PLAINTIFF BREAKING CODE
15 Plaintiff, SILENCE’S RESPONSES TO
DEFENDANT KATHERINE
16 v. MCNAMARA’S FIRST SET OF
REQUESTS FOR PRODUCTION
17 KATHERINE MCNAMARA, an
individual, JEREMY WHITELEY, an Judge: Hon. Maria A. Audero
18 individual, and DOES 1 through 50, Complaint Filed: March 28, 2022
inclusive, Trial Date: October 17, 2023
19
20 Defendants.
21
22
23 PROPOUNDING PARTY: Defendant KATHERINE MCNAMARA
24 RESPONDING PARTY: Plaintiff BREAKING CODE SILENCE
25 SET NO.: One
26
27
28
29
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 3 of 29 Page ID #:2872

1 Pursuant to Federal Rule of Civil Procedure 34, Plaintiff Breaking Code
2 Silence (“Plaintiff”) responds to Defendant Katherine McNamara’s First Set of
3 Requests for Production of Documents (the “Requests”) as follows:
4 GENERAL STATEMENT AND OBJECTIONS
5 Plaintiff’s responses are subject to the General Objections set forth below.
6 These General Objections form a part of each response to each Request and are set
7 forth here to avoid the duplication and repetition that would follow from restating
8 them in each response. The General Objections may be specifically referred to in
9 response to the Requests for the purpose of clarity; however, the failure to
10 specifically reference a General Objection in a response should not be construed as
11 a waiver of the objection in connection therewith.
12 1. Plaintiff objects to these Request to the extent they are overbroad,
13 unduly burdensome, and seek documents that are not reasonably calculated to lead
14 to the discovery of admissible evidence.
15 2. Plaintiff objects to these Requests to the extent that they are vague,
16 ambiguous, overbroad, or oppressive, or seek information for which the burden or
17 expense of the proposed discovery outweighs the likely benefit. Any response or
18 production by Plaintiff is not an admission by Plaintiff of the relevance or
19 admissibility of the records or information produced, and all objections to the
20 further use of any information or documents or to further production are specifically
21 preserved.
22 3. Plaintiff objects to these Requests to the extent that they are not limited
23 to a reasonable time period and are therefore overbroad, seek information for which
24 the burden or expense of the proposed discovery outweighs the likely benefit, and
25 seek information beyond the scope of permissible discovery.
26 4. Plaintiff objects to these Requests to the extent that they seek
27 information and documents that are protected from discovery by the attorney-client
28 privilege and/or attorney work-product doctrine, protected by the right to privacy, or
-1- 30
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 4 of 29 Page ID #:2873

1 protected by any other applicable privilege or protection. Any inadvertent
2 production of privileged or protected information or documents shall not constitute,
3 or be deemed, a waiver of any applicable statutory, regulatory, common law, or
4 other privilege. Plaintiff reserves the right to demand the return or destruction of
5 any privileged or protected document, copies thereof, and any materials containing
6 information derived therefrom.
7 5. Plaintiff objects to these Requests to the extent that they seek the
8 disclosure of information or documents that contain private, proprietary,
9 confidential, trade secret, sensitive financial, or otherwise protected information.
10 6. Plaintiff objects to these Requests to the extent that they call for
11 speculation because Plaintiff lacks sufficient foundation to provide a response.
12 7. Plaintiff objects to these Requests to the extent that they seek
13 information or documents that: (i) are already in the possession of, or equally
14 available to, Defendants; (ii) are more easily and efficiently obtained from other
15 sources, including from other federal agencies or regulatory bodies; or (iii) are not in
16 the possession, custody, or control of Plaintiff.
17 8. Plaintiff objects to these Requests to the extent that Defendants purport
18 to impose on Plaintiff any obligation different from, or greater than, those set forth
19 in the Federal Rules of Civil Procedure, the Local Rules of the Central District of
20 California, or other applicable rules or standing orders of the Court. Plaintiff is not
21 obligated to, and declines to, comply with any instructions or directions that conflict
22 with the Federal Rules of Civil Procedure, the Local Rules of the Central District of
23 California, or other applicable rules or standing orders of the Court.
24 9. Plaintiff objects to these Requests to the extent that they seek the
25 disclosure of information that calls for an expert witness opinion.
26 10. Plaintiff objects to these Requests to the extent that they seek
27 information that addresses purely legal issues, contains legal conclusions, implies or
28
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PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 5 of 29 Page ID #:2874

1 assumes facts or circumstances which do not or did not exist, or seeks an admission
2 of liability.
3 11. Plaintiff’s responses shall not be deemed to constitute incidental or
4 implied admissions. Plaintiff’s response to all or any part of a Request should not
5 be taken as an admission that: (i) any particular document or thing exists, is in
6 Plaintiff’s possession, custody, or control, is relevant, non-privileged, or admissible
7 in evidence; (ii) any statement or characterization in the Requests is accurate or
8 complete; (iii) Plaintiff’s response constitutes admissible evidence; or (iv)
9 Defendant accepts or admits the existence of any alleged fact(s) set forth or assumed
10 by the Request.
11 12. Plaintiff objects to these Requests to the extent they seek to restrict the
12 facts on which Plaintiff may rely at summary judgment, trial, or any other
13 proceeding in this matter. Discovery has yet to be completed in this case. By
14 responding and objecting to these Requests, Plaintiff does not intend to, and does
15 not, limit the evidence upon which it may rely to support its contentions, denials,
16 and defenses, or to rebut or impeach contentions, assertions, and evidence presented
17 by Defendants. Further, Plaintiff reserves the right to supplement or amend its
18 responses.
19 These General Objections are explicitly incorporated into each of the
20 responses hereinafter provided as if the same were fully set forth therein at length.
21 RESPONSES TO REQUESTS FOR PRODUCTION
22 REQUEST FOR PRODUCTION NO. 1:
23 Please PRODUCE all DOCUMENTS to which YOU referred in connection
24 with preparing YOUR response to the First Set of Interrogatories served
25 concurrently herewith, or which were identified or described by YOU in YOUR
26 response to the First Set of Interrogatories.
27 RESPONSE TO REQUEST FOR PRODUCTION NO. 1:
28 In addition to the General Objections set forth above and incorporated herein,
-3- 32
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 6 of 29 Page ID #:2875

1 Plaintiff objects to this Request to the extent that it seeks documents that are
2 protected from discovery by the attorney-client privilege and/or attorney work-
3 product doctrine, or protected by any other applicable privilege or protection.
4 Subject to and without waiving the foregoing objections, or Plaintiff’s
5 objections in response to the First Set of Interrogatories, Plaintiff will produce
6 responsive, non-privileged documents, to the extent any exist.
7 REQUEST FOR PRODUCTION NO. 2:
8 For each response to the First Set of Requests for Admissions served
9 concurrently herewith that is not an unqualified admission, please PRODUCE all
10 DOCUMENTS that support, undermine, contradict, or refute YOUR response to
11 that Request for Admission.
12 RESPONSE TO REQUEST FOR PRODUCTION NO. 2:
13 In addition to the General Objections set forth above and incorporated herein,
14 Plaintiff objects to this Request to the extent that it seeks documents that are
15 protected from discovery by the attorney-client privilege and/or attorney work-
16 product doctrine, or protected by any other applicable privilege or protection.
17 Subject to and without waiving the foregoing objections, or Plaintiff’s
18 objections in response to the First Set of Requests for Admission, Plaintiff will
19 produce responsive, non-privileged documents, to the extent any exist.
20 REQUEST FOR PRODUCTION NO. 3:
21 Please PRODUCE all DOCUMENTS which RELATE TO YOUR allegation
22 that MCNAMARA engaged in a “pattern and practice of maliciously accessing
23 materials, social media accounts, third party platform accounts and a website
24 belonging to BCS in an attempt to shut BCS down” including, but not limited to,
25 any forensic analysis performed.
26 RESPONSE TO REQUEST FOR PRODUCTION NO. 3:
27 In addition to the General Objections set forth above and incorporated herein,
28 Plaintiff objects to this Request to the extent that it seeks documents that are
-4- 33
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 7 of 29 Page ID #:2876

1 protected from discovery by the attorney-client privilege and/or attorney work-
2 product doctrine, or protected by any other applicable privilege or protection.
3 Subject to and without waiving the foregoing objections, Plaintiff will
4 produce responsive, non-privileged documents, to the extent any exist.
5 REQUEST FOR PRODUCTION NO. 4:
6 Please PRODUCE all DOCUMENTS RELATING TO the forensic analysis
7 or report on which YOU base the claims and allegations of YOUR Complaint that
8 DEFENDANTS improperly accessed and used, or denied BCS access, to any BCS
9 computer or account including, but not limited to: any analysis or report prepared;
10 all COMMUNICATIONS between YOU and the PERSON who prepared the
11 analysis or report including invoices; all DOCUMENTS that reflect the industry-
12 standard tools used to collect computer forensic evidence; all DOCUMENTS that
13 establish the chain-of-custody for the forensic evidence and nonrepudiation methods
14 used to preserve digital forensic evidence; and all raw digital forensic data used for
15 the creation of the forensic report and evidence of nonrepudiation.
16 RESPONSE TO REQUEST FOR PRODUCTION NO. 4:
17 In addition to the General Objections set forth above and incorporated herein,
18 Plaintiff objects to this Request to the extent that it seeks documents that are
19 protected from discovery by the attorney-client privilege and/or attorney work-
20 product doctrine, or protected by any other applicable privilege or protection.
21 Plaintiff further objects to this Request on the ground that it is vague and ambiguous
22 with respect to the undefined terms “industry-standard tools” and “nonrepudiation
23 methods.” Plaintiff further objects to this Request on the ground that it is
24 argumentative and assumes facts.
25 Subject to and without waiving the foregoing objections, Plaintiff will
26 produce responsive, non-privileged documents, to the extent any exist.
27 REQUEST FOR PRODUCTION NO. 5:
28 Please PRODUCE the curriculum vitae or resume of all PERSONS
-5- 34
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 8 of 29 Page ID #:2877

1 conducting the forensic analysis on which YOU base the claims and allegations of
2 YOUR Complaint that DEFENDANTS improperly accessed and used, or denied
3 BCS access, to any BCS computer or account.
4 RESPONSE TO REQUEST FOR PRODUCTION NO. 5:
5 In addition to the General Objections set forth above and incorporated herein,
6 Plaintiff objects to this Request on the ground that it is argumentative and assumes
7 facts.
8 Subject to and without waiving the foregoing objections, Plaintiff will
9 produce responsive, non-privileged documents, to the extent any exist.
10 REQUEST FOR PRODUCTION NO. 6:
11 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS,
12 which RELATE TO YOUR allegation that MCNAMARA “registered the domain
13 for the organization.”
14 RESPONSE TO REQUEST FOR PRODUCTION NO. 6:
15 In addition to the General Objections set forth above and incorporated herein,
16 Plaintiff objects to this Request to the extent that it seeks documents that are
17 protected from discovery by the attorney-client privilege and/or attorney work-
18 product doctrine, or protected by any other applicable privilege or protection.
19 Subject to and without waiving the foregoing objections, Plaintiff will
20 produce responsive, non-privileged documents, to the extent any exist.
21 REQUEST FOR PRODUCTION NO. 7:
22 Please PRODUCE all DOCUMENTS which reflect or evidence BCS’s
23 policies prohibiting “…among other things, accessing data, a server, a network or an
24 account for any purpose other than conducting approved BCS business; revealing
25 BCS system passwords to others or allowing use of the individual’s account by
26 others; circumventing user authentication or security; providing information about,
27 or lists of, BCS users to parties outside BCS; and effecting security breaches or
28 disruptions of BCS system resources, including but not limited to accessing data of
-6- 35
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 9 of 29 Page ID #:2878

1 which the individual is not an intended recipient or logging into a server or account
2 that the individual is not expressly authorized to access” as alleged in paragraph 53
3 of YOUR Complaint.
4 RESPONSE TO REQUEST FOR PRODUCTION NO. 7:
5 In addition to the General Objections set forth above and incorporated herein,
6 Plaintiff objects to this Request to the extent that it seeks documents that are
7 protected from discovery by the attorney-client privilege and/or attorney work-
8 product doctrine, or protected by any other applicable privilege or protection.
9 Subject to and without waiving the foregoing objections, Plaintiff will
10 produce responsive, non-privileged documents, to the extent any exist.
11 REQUEST FOR PRODUCTION NO. 8:
12 Please PRODUCE all COMMUNICATIONS between YOU and any
13 PERSON RELATING TO MCNAMARA’s assignment of the rights to the domain
14 to BCS, including MCNAMARA’s refusal to do so.
15 RESPONSE TO REQUEST FOR PRODUCTION NO. 8:
16 In addition to the General Objections set forth above and incorporated herein,
17 Plaintiff objects to this Request to the extent that it seeks documents that are
18 protected from discovery by the attorney-client privilege and/or attorney work-
19 product doctrine, or protected by any other applicable privilege or protection.
20 Subject to and without waiving the foregoing objections, Plaintiff will
21 produce responsive, non-privileged documents, to the extent any exist.
22 REQUEST FOR PRODUCTION NO. 9:
23 Please PRODUCE all DOCUMENTS RELATING TO reimbursement
24 requests submitted to YOU by MCNAMARA, including the requests submitted and
25 COMMUNICATIONS, board meeting minutes and resolutions RELATING TO
26 such requests.
27 RESPONSE TO REQUEST FOR PRODUCTION NO. 9:
28 In addition to the General Objections set forth above and incorporated herein,
-7- 36
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 10 of 29 Page ID #:2879

1 Plaintiff objects to this Request to the extent that it seeks documents that are
2 protected from discovery by the attorney-client privilege and/or attorney work-
3 product doctrine, or protected by any other applicable privilege or protection.
4 Subject to and without waiving the foregoing objections, Plaintiff will
5 produce responsive, non-privileged documents, to the extent any exist.
6 REQUEST FOR PRODUCTION NO. 10:
7 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS and
8 digital evidence, RELATING TO YOUR removal of DEFENDANTS’ access to all
9 BCS accounts after their resignations.
10 RESPONSE TO REQUEST FOR PRODUCTION NO. 10:
11 In addition to the General Objections set forth above and incorporated herein,
12 Plaintiff objects to this Request to the extent that it seeks documents that are
13 protected from discovery by the attorney-client privilege and/or attorney work-
14 product doctrine, or protected by any other applicable privilege or protection.
15 Plaintiff further objects to this Request on the ground that it assumes facts.
16 Subject to and without waiving the foregoing objections, Plaintiff will
17 produce responsive, non-privileged documents, to the extent any exist.
18 REQUEST FOR PRODUCTION NO. 11:
19 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS and
20 digital evidence, RELATING TO any changes made by DEFENDANTS to the
21 passwords for any BCS accounts after DEFENDANTS’ resignations.
22 RESPONSE TO REQUEST FOR PRODUCTION NO. 11:
23 In addition to the General Objections set forth above and incorporated herein,
24 Plaintiff objects to this Request to the extent that it seeks documents that are
25 protected from discovery by the attorney-client privilege and/or attorney work-
26 product doctrine, or protected by any other applicable privilege or protection.
27 Subject to and without waiving the foregoing objections, Plaintiff will
28 produce responsive, non-privileged documents, to the extent any exist.
-8- 37
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 11 of 29 Page ID #:2880

1 REQUEST FOR PRODUCTION NO. 12:
2 Please PRODUCE all CloudWays logs from March 14, 2021 to the present,
3 including web server logs and audit logs reflecting any alterations and deletions.
4 RESPONSE TO REQUEST FOR PRODUCTION NO. 12:
5 In addition to the General Objections set forth above and incorporated herein,
6 Plaintiff objects to this Request on the ground that it is vague and ambiguous with
7 respect to the undefined terms “web server logs” and “audit logs.” Plaintiff further
8 objects to this Request to the extent it seeks documents not within Plaintiff’s
9 possession, custody, or control.
10 Subject to and without waiving the foregoing objections, Plaintiff will
11 produce responsive, non-privileged documents, to the extent any exist.
12 REQUEST FOR PRODUCTION NO. 13:
13 Please PRODUCE all website access logs for BCS’s website from March 14,
14 2021 to the present.
15 RESPONSE TO REQUEST FOR PRODUCTION NO. 13:
16 In addition to the General Objections set forth above and incorporated herein,
17 Plaintiff objects to this Request on the ground that it is vague and ambiguous with
18 respect to the undefined term “website access logs.” Plaintiff further objects to this
19 Request to the extent it seeks documents not within Plaintiff’s possession, custody,
20 or control.
21 Subject to and without waiving the foregoing objections, Plaintiff will
22 produce responsive, non-privileged documents, to the extent any exist.
23 REQUEST FOR PRODUCTION NO. 14:
24 Please PRODUCE all WordPress logs for BCS’s website from March 14,
25 2021 to the present.
26 RESPONSE TO REQUEST FOR PRODUCTION NO. 14:
27 In addition to the General Objections set forth above and incorporated herein,
28 Plaintiff objects to this Request on the ground that it is vague and ambiguous with
-9- 38
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 12 of 29 Page ID #:2881

1 respect to the undefined term “WordPress logs.” Plaintiff further objects to this
2 Request to the extent it seeks documents not within Plaintiff’s possession, custody,
3 or control.
4 Subject to and without waiving the foregoing objections, Plaintiff will
5 produce responsive, non-privileged documents, to the extent any exist.
6 REQUEST FOR PRODUCTION NO. 15:
7 Please PRODUCE all Slack chat messages and logs for BCS from March 14,
8 2021 to the present, including audit logs reflecting any alterations and deletions.
9 RESPONSE TO REQUEST FOR PRODUCTION NO. 15:
10 In addition to the General Objections set forth above and incorporated herein,
11 Plaintiff objects to this Request on the ground that it is overbroad, unduly
12 burdensome, and not reasonably calculated to lead to the discovery of admissible
13 evidence because it seeks all Slack chat messages without regard to subject matter
14 over a nearly 18-month period. Plaintiff further object to this Request on the ground
15 that it is vague and ambiguous with respect to the phrase “for BCS” and with respect
16 to the undefined terms “logs” and “audit logs.” Plaintiff further objects to this
17 Request to the extent it seeks documents not within Plaintiff’s possession, custody,
18 or control. Plaintiff further objects to the Request to the extent that it seeks
19 proprietary or competitively sensitive business information.
20 Subject to and without waiving the foregoing objections, Plaintiff will
21 produce responsive, non-privileged documents that relate to the claims or defenses
22 in this action, to the extent any exist.
23 REQUEST FOR PRODUCTION NO. 16:
24 Please PRODUCE all Google download logs for BCS from March 14, 2021
25 to the present, including logs that support YOUR contention that DEFENDANTS
26 accessed and downloaded from restricted folders after they resigned or changed
27 permissions.
28
-10- 39
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 13 of 29 Page ID #:2882

1 RESPONSE TO REQUEST FOR PRODUCTION NO. 16:
2 In addition to the General Objections set forth above and incorporated herein,
3 Plaintiff objects to this Request on the ground that it is vague and ambiguous with
4 respect to the phrase “for BCS” and with respect to the undefined terms “logs” and
5 “download logs.” Plaintiff further objects to this Request to the extent it seeks
6 documents not within Plaintiff’s possession, custody, or control.
7 Subject to and without waiving the foregoing objections, Plaintiff will
8 produce responsive, non-privileged documents, to the extent any exist.
9 REQUEST FOR PRODUCTION NO. 17:
10 Please PRODUCE all Zoom call logs for BCS from March 14, 2021 to the
11 present, including audit logs reflecting any alterations and deletions.
12 RESPONSE TO REQUEST FOR PRODUCTION NO. 17:
13 In addition to the General Objections set forth above and incorporated herein,
14 Plaintiff objects to this Request on the ground that it is overbroad, unduly
15 burdensome, and not reasonably calculated to lead to the discovery of admissible
16 evidence because it seeks all Zoom call logs, with anyone, without regard to subject
17 matter, over a nearly 18-month period. Plaintiff further objects to this Request on
18 the ground that it is vague and ambiguous with respect to the phrase “for BCS” and
19 with respect to the undefined terms “call logs” and “audit logs.” Plaintiff further
20 objects to this Request to the extent it seeks documents not within Plaintiff’s
21 possession, custody, or control.
22 REQUEST FOR PRODUCTION NO. 18:
23 Please PRODUCE all telephone bills and call logs for BCS from March 14,
24 2021 to the present.
25 RESPONSE TO REQUEST FOR PRODUCTION NO. 18:
26 In addition to the General Objections set forth above and incorporated herein,
27 Plaintiff objects to this Request on the ground that it is overbroad, unduly
28 burdensome, and not reasonably calculated to lead to the discovery of admissible
-11- 40
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 14 of 29 Page ID #:2883

1 evidence because it seeks all telephone call logs, with anyone, without regard to
2 subject matter, over a nearly 18-month period. Plaintiff further object to this
3 Request on the ground that it is vague and ambiguous with respect to the phrase
4 “call logs.” Plaintiff further objects to this Request to the extent it seeks documents
5 not within Plaintiff’s possession, custody, or control.
6 REQUEST FOR PRODUCTION NO. 19:
7 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS, that
8 RELATE TO YOUR ownership of, or interest in, the Kmcnamara013 Hover.com
9 account including, but not limited to any registration DOCUMENTS, payment
10 receipts, contracts and assignments.
11 RESPONSE TO REQUEST FOR PRODUCTION NO. 19:
12 In addition to the General Objections set forth above and incorporated herein,
13 Plaintiff objects to this Request to the extent that it seeks documents that are
14 protected from discovery by the attorney-client privilege and/or attorney work-
15 product doctrine, or protected by any other applicable privilege or protection.
16 Plaintiff further objects to this Request on the ground that it calls for a legal
17 conclusion.
18 Subject to and without waiving the foregoing objections, Plaintiff will
19 produce responsive, non-privileged documents, to the extent any exist.
20 REQUEST FOR PRODUCTION NO. 20:
21 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS, that
22 RELATE TO YOUR ownership of, or interest in, the
23 domain including, but not limited to any registration DOCUMENTS, payment
24 receipts, contracts, assignments and required Tucows/Hover disclosures.
25 RESPONSE TO REQUEST FOR PRODUCTION NO. 20:
26 In addition to the General Objections set forth above and incorporated herein,
27 Plaintiff objects to this Request to the extent that it seeks documents that are
28 protected from discovery by the attorney-client privilege and/or attorney work-
-12- 41
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 15 of 29 Page ID #:2884

1 product doctrine, or protected by any other applicable privilege or protection.
2 Plaintiff further objects to this Request on the ground that it calls for a legal
3 conclusion.
4 Subject to and without waiving the foregoing objections, Plaintiff will
5 produce responsive, non-privileged documents, to the extent any exist.
6 REQUEST FOR PRODUCTION NO. 21:
7 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS, that
8 RELATE TO YOUR ownership of, or interest in, the @breakingcodesi1 Twitter
9 account including, but not limited to any registration DOCUMENTS, payment
10 receipts, contracts and assignments.
11 RESPONSE TO REQUEST FOR PRODUCTION NO. 21:
12 In addition to the General Objections set forth above and incorporated herein,
13 Plaintiff objects to this Request to the extent that it seeks documents that are
14 protected from discovery by the attorney-client privilege and/or attorney work-
15 product doctrine, or protected by any other applicable privilege or protection.
16 Plaintiff further objects to this Request on the ground that it calls for a legal
17 conclusion.
18 Subject to and without waiving the foregoing objections, Plaintiff will
19 produce responsive, non-privileged documents, to the extent any exist.
20 REQUEST FOR PRODUCTION NO. 22:
21 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS, that
22 RELATE TO YOUR ownership of, or interest in, the CloudWays account that
23 hosted BCS’s website between March 2021 and March 2022 including, but not
24 limited to any registration DOCUMENTS, invoices, payment receipts, contracts and
25 assignments.
26 RESPONSE TO REQUEST FOR PRODUCTION NO. 22:
27 In addition to the General Objections set forth above and incorporated herein,
28 Plaintiff objects to this Request to the extent that it seeks documents that are
-13- 42
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 16 of 29 Page ID #:2885

1 protected from discovery by the attorney-client privilege and/or attorney work-
2 product doctrine, or protected by any other applicable privilege or protection.
3 Plaintiff further objects to this Request on the ground that it calls for a legal
4 conclusion. Plaintiff further objects to this Request on the ground that it assumes
5 facts.
6 Subject to and without waiving the foregoing objections, Plaintiff will
7 produce responsive, non-privileged documents, to the extent any exist.
8 REQUEST FOR PRODUCTION NO. 23:
9 Please PRODUCE all DOCUMENTS, including COMMUNICATIONS, that
10 RELATE TO YOUR ownership of, or interest in, the Katherine@network-node.com
11 Zotero account including, but not limited to any registration DOCUMENTS,
12 payment receipts, contracts and assignments.
13 RESPONSE TO REQUEST FOR PRODUCTION NO. 23:
14 In addition to the General Objections set forth above and incorporated herein,
15 Plaintiff objects to this Request to the extent that it seeks documents that are
16 protected from discovery by the attorney-client privilege and/or attorney work-
17 product doctrine, or protected by any other applicable privilege or protection.
18 Plaintiff further objects to this Request on the ground that it calls for a legal
19 conclusion.
20 Subject to and without waiving the foregoing objections, Plaintiff will
21 produce responsive, non-privileged documents, to the extent any exist.
22 REQUEST FOR PRODUCTION NO. 24:
23 Please PRODUCE all COMMUNICATIONS with any other PERSON
24 (except YOUR outside counsel) RELATED TO DEFENDANTS including, but not
25 limited to, COMMUNICATIONS with, between and among, Bill Boyles, Vanessa
26 Hughes, Jennifer Magill, Chelsea Papciak (Filer), Jenna Bulis, Mary Appelgate,
27 Caroline Cole, Emily Carter, Jesse Jensen, Robert Cook, Nicole Beauregard, Athena
28 Kolbe, Megan Hurwitt, University of North Carolina Wilmington and associates,
-14- 43
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 17 of 29 Page ID #:2886

1 Lifetime and associates, The Doctors studios and associates, Loma Linda
2 University, University of California Los Angeles, Hilton Foundation, Carter Reum,
3 Paris Hilton, Rebecca Mellinger, 11:11 Media and associates, Paris Hilton
4 Entertainment and Eric Schmidt.
5 RESPONSE TO REQUEST FOR PRODUCTION NO. 24:
6 In addition to the General Objections set forth above and incorporated herein,
7 Plaintiff objects to this Request on the ground that it is overbroad, unduly
8 burdensome, and not reasonably calculated to lead to the discovery of admissible
9 evidence because it seeks communications over a nearly 18-month period that do
10 not relate to the claims or defenses in this case. Plaintiff further objects to this
11 Request to the extent that it seeks documents that are protected from discovery by
12 the attorney-client privilege and/or attorney work-product doctrine, or protected by
13 any other applicable privilege or protection. Plaintiff further objects to the Request
14 to the extent that it seeks proprietary or competitively sensitive business
15 information.
16 Subject to and without waiving the foregoing objections, Plaintiff will
17 produce responsive, non-privileged documents that relate to Defendants and the
18 claims or defenses in this litigation, to the extent any exist.
19 REQUEST FOR PRODUCTION NO. 25:
20 Please PRODUCE all COMMUNICATIONS with any other PERSON
21 (except YOUR outside counsel) RELATED TO the domain
22 including, but not limited to, COMMUNICATIONS
23 with, between and among, Bill Boyles, Vanessa Hughes, Jennifer Magill, Chelsea
24 Papciak (Filer), Jenna Bulis, Mary Appelgate, Caroline Cole, Emily Carter, Jesse
25 Jensen, Robert Cook, Nicole Beauregard, Athena Kolbe, Megan Hurwitt, University
26 of North Carolina Wilmington and associates, Lifetime and associates, The Doctors
27 studios and associates, Loma Linda University, University of California Los
28 Angeles, Hilton Foundation, Carter Reum, Paris Hilton, Rebecca Mellinger, 11:11
-15- 44
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 18 of 29 Page ID #:2887

1 Media and associates, Paris Hilton Entertainment and Eric Schmidt.
2 RESPONSE TO REQUEST FOR PRODUCTION NO. 25:
3 In addition to the General Objections set forth above and incorporated herein,
4 Plaintiff objects to this Request on the ground that it is overbroad, unduly
5 burdensome, and not reasonably calculated to lead to the discovery of admissible
6 evidence because it seeks communications over a nearly 18-month period that do
7 not relate to the claims or defenses in this case. Plaintiff further objects to this
8 Request to the extent that it seeks documents that are protected from discovery by
9 the attorney-client privilege and/or attorney work-product doctrine, or protected by
10 any other applicable privilege or protection. Plaintiff further objects to the Request
11 to the extent that it seeks proprietary or competitively sensitive business
12 information.
13 Subject to and without waiving the foregoing objections, Plaintiff will
14 produce responsive, non-privileged documents that relate to the domain
15 and the claims or defenses in this litigation, to the extent
16 any exist.
17 REQUEST FOR PRODUCTION NO. 26:
18 Please PRODUCE all intellectual property contracts and assignments to
19 which BCS is a party.
20 RESPONSE TO REQUEST FOR PRODUCTION NO. 26:
21 In addition to the General Objections set forth above and incorporated herein,
22 Plaintiff objects to this Request on the ground that it is overbroad, unduly
23 burdensome, and not reasonably calculated to lead to the discovery of admissible
24 evidence because it seeks documents from an unlimited time period that do not
25 relate to the claims or defenses in this case. Plaintiff further objects to the Request
26 on the ground that it is vague and ambiguous with respect to the terms “intellectual
27 property contracts” and “assignments.” Plaintiff further objects to the Request to
28 the extent that it seeks proprietary or competitively sensitive business information of
-16- 45
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 19 of 29 Page ID #:2888

1 Plaintiff or third-parties. Plaintiff further objects to the Request on the ground that it
2 calls for a legal conclusion.
3 REQUEST FOR PRODUCTION NO. 27:
4 Please PRODUCE all DOCUMENTS RELATING TO agreements between
5 YOU and Vanessa Hughes including, but not limited to, nondisclosure agreements,
6 volunteer agreements, compensation agreements, and board meeting minutes and
7 resolutions regarding same.
8 RESPONSE TO REQUEST FOR PRODUCTION NO. 27:
9 In addition to the General Objections set forth above and incorporated herein,
10 Plaintiff objects to this Request on the ground that it is overbroad, unduly
11 burdensome, and not reasonably calculated to lead to the discovery of admissible
12 evidence because it seeks documents from an unlimited time period that do not
13 relate to the claims or defenses in this case. Plaintiff further objects to the Request
14 to the extent that it seeks personal, proprietary, or competitively sensitive business
15 information of Hughes or third-parties. Plaintiff further objects to this Request to
16 the extent that it seeks documents that are protected from discovery by the attorney-
17 client privilege and/or attorney work-product doctrine, or protected by any other
18 applicable privilege or protection.
19 REQUEST FOR PRODUCTION NO. 28:
20 Please PRODUCE all DOCUMENTS RELATING TO agreements between
21 YOU and Jennifer Magill including, but not limited to, nondisclosure agreements,
22 volunteer agreements, compensation agreements, and board meeting minutes and
23 resolutions regarding same.
24 RESPONSE TO REQUEST FOR PRODUCTION NO. 28:
25 In addition to the General Objections set forth above and incorporated herein,
26 Plaintiff objects to this Request on the ground that it is overbroad, unduly
27 burdensome, and not reasonably calculated to lead to the discovery of admissible
28 evidence because it seeks documents from an unlimited time period that do not
-17- 46
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 20 of 29 Page ID #:2889

1 relate to the claims or defenses in this case. Plaintiff further objects to the Request
2 to the extent that it seeks personal, proprietary, or competitively sensitive business
3 information of Magill or third-parties. Plaintiff further objects to this Request to the
4 extent that it seeks documents that are protected from discovery by the attorney-
5 client privilege and/or attorney work-product doctrine, or protected by any other
6 applicable privilege or protection.
7 REQUEST FOR PRODUCTION NO. 29:
8 Please PRODUCE all DOCUMENTS RELATING TO agreements between
9 YOU and any PERSON RELATED TO Lifetime’s Cruel Instruction movie.
10 RESPONSE TO REQUEST FOR PRODUCTION NO. 29:
11 In addition to the General Objections set forth above and incorporated herein,
12 Plaintiff objects to this Request on the ground that it is not reasonably calculated to
13 lead to the discovery of admissible evidence because it seeks documents from an
14 unlimited time period that do not relate to the claims or defenses in this case.
15 Plaintiff further objects to this Request to the extent that it seeks documents that are
16 protected from discovery by the attorney-client privilege and/or attorney work-
17 product doctrine, or protected by any other applicable privilege or protection.
18 Plaintiff further objects to the Request to the extent that it seeks proprietary or
19 competitively sensitive business information.
20 REQUEST FOR PRODUCTION NO. 30:
21 Please PRODUCE all COMMUNICATIONS between YOU and any
22 PERSON RELATED TO Lifetime’s Cruel Instruction movie.
23 RESPONSE TO REQUEST FOR PRODUCTION NO. 30:
24 In addition to the General Objections set forth above and incorporated herein,
25 Plaintiff objects to this Request on the ground that it is not reasonably calculated to
26 lead to the discovery of admissible evidence because it seeks documents from an
27 unlimited time period that do not relate to the claims or defenses in this case.
28 Plaintiff further objects to this Request to the extent that it seeks documents that are
-18- 47
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 21 of 29 Page ID #:2890

1 protected from discovery by the attorney-client privilege and/or attorney work-
2 product doctrine, or protected by any other applicable privilege or protection.
3 Subject to and without waiving the foregoing objections, Plaintiff will
4 produce responsive, non-privileged documents from March 12, 2022 onward, to the
5 extent any exist.
6 REQUEST FOR PRODUCTION NO. 31:
7 Please PRODUCE all Board of Directors meeting minutes for BCS from
8 March 2021 to the present.
9 RESPONSE TO REQUEST FOR PRODUCTION NO. 31:
10 In addition to the General Objections set forth above and incorporated herein,
11 Plaintiff objects to this Request on the ground that it is overly broad and not
12 reasonably calculated to lead to the discovery of admissible evidence because it
13 seeks documents that do not relate to the claims or defenses in this case. Plaintiff
14 further objects to this Request to the extent that it seeks documents that are protected
15 from discovery by the attorney-client privilege and/or attorney work-product
16 doctrine, or protected by any other applicable privilege or protection. Plaintiff
17 further objects to the Request to the extent that it seeks proprietary or competitively
18 sensitive business information.
19 Subject to and without waiving the foregoing objections, Plaintiff will
20 produce responsive, non-privileged Board of Director meeting minutes for BCS
21 from March 2021 to the present that relate to the claims or defenses in this litigation.
22 REQUEST FOR PRODUCTION NO. 32:
23 Please PRODUCE all audio, video or digital recordings of YOUR Board of
24 Directors meetings.
25 RESPONSE TO REQUEST FOR PRODUCTION NO. 32:
26 In addition to the General Objections set forth above and incorporated herein,
27 Plaintiff objects to this Request on the ground that it is overly broad and not
28 reasonably calculated to lead to the discovery of admissible evidence because it
-19- 48
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 22 of 29 Page ID #:2891

1 seeks documents from an unlimited time period that do not relate to the claims or
2 defenses in this case. Plaintiff further objects to this Request to the extent that it
3 seeks documents that are protected from discovery by the attorney-client privilege
4 and/or attorney work-product doctrine, or protected by any other applicable
5 privilege or protection. Plaintiff further objects to the Request to the extent that it
6 seeks proprietary or competitively sensitive business information.
7 Subject to and without waiving the foregoing objections, Plaintiff will
8 produce responsive, non-privileged recordings of Board of Director meetings that
9 relate to the claims or defenses in this litigation, to the extent any exist.
10 REQUEST FOR PRODUCTION NO. 33:
11 Please PRODUCE all BCS corporate resolutions from March 2021 to the
12 present.
13 RESPONSE TO REQUEST FOR PRODUCTION NO. 33:
14 In addition to the General Objections set forth above and incorporated herein,
15 Plaintiff objects to this Request on the ground that it is overly broad and not
16 reasonably calculated to lead to the discovery of admissible evidence because it
17 seeks documents that do not relate to the claims or defenses in this case. Plaintiff
18 further objects to this Request to the extent that it seeks documents that are protected
19 from discovery by the attorney-client privilege and/or attorney work-product
20 doctrine, or protected by any other applicable privilege or protection. Plaintiff
21 further objects to the Request to the extent that it seeks proprietary or competitively
22 sensitive business information.
23 Subject to and without waiving the foregoing objections, Plaintiff will
24 produce responsive, non-privileged documents that relate to the claims or defenses
25 in this litigation, to the extent any exist.
26 REQUEST FOR PRODUCTION NO. 34:
27 Please PRODUCE all BCS financial records and reports from March 2021 to
28 the present including, but not limited to, balance sheets, cash flow statements,
-20- 49
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 23 of 29 Page ID #:2892

1 income statements, bank statements and donation ledgers.
2 RESPONSE TO REQUEST FOR PRODUCTION NO. 34:
3 In addition to the General Objections set forth above and incorporated herein,
4 Plaintiff objects to this Request on the ground that it is overly broad, unduly
5 burdensome, and not reasonably calculated to lead to the discovery of admissible
6 evidence because it seeks documents that do not relate to the claims or defenses in
7 this case. Plaintiff further objects to the Request to the extent that it seeks
8 proprietary or competitively sensitive business information.
9 REQUEST FOR PRODUCTION NO. 35:
10 Please PRODUCE all DOCUMENTS RELATED TO BCS’ indebtedness
11 including, but not limited to, all loans, leases, notes and contracts.
12 RESPONSE TO REQUEST FOR PRODUCTION NO. 35:
13 In addition to the General Objections set forth above and incorporated herein,
14 Plaintiff objects to this Request on the ground that it is overly broad, unduly
15 burdensome, and not reasonably calculated to lead to the discovery of admissible
16 evidence because it seeks documents that do not relate to the claims or defenses in
17 this case. Plaintiff further objects to the Request to the extent that it seeks
18 proprietary or competitively sensitive business information.
19 REQUEST FOR PRODUCTION NO. 36:
20 Please PRODUCE all DOCUMENTS which RELATE TO the approval by
21 BCS’s Board of Directors to initiate litigation against DEFENDANTS including,
22 but not limited to, COMMUNICATIONS, meeting minutes and resolutions.
23 RESPONSE TO REQUEST FOR PRODUCTION NO. 36:
24 In addition to the General Objections set forth above and incorporated herein,
25 Plaintiff objects to this Request on the ground that it is not reasonably calculated to
26 lead to the discovery of admissible evidence because it seeks documents that do not
27 relate to the claims or defenses in this case. Plaintiff further objects to this Request
28 to the extent that it seeks documents that are protected from discovery by the
-21- 50
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 24 of 29 Page ID #:2893

1 attorney-client privilege and/or attorney work-product doctrine, or protected by any
2 other applicable privilege or protection.
3 REQUEST FOR PRODUCTION NO. 37:
4 Please PRODUCE all DOCUMENTS which RELATE TO any monetary
5 harm YOU claim to have suffered as a result of DEFENDANTS’ conduct.
6 RESPONSE TO REQUEST FOR PRODUCTION NO. 37:
7 In addition to the General Objections set forth above and incorporated herein,
8 Plaintiff objects to this Request to the extent that it seeks documents that are
9 protected from discovery by the attorney-client privilege and/or attorney work-
10 product doctrine, or protected by any other applicable privilege or protection.
11 Subject to and without waiving the foregoing objections, Plaintiff will
12 produce responsive, non-privileged documents, to the extent any exist.
13 REQUEST FOR PRODUCTION NO. 38:
14 Please PRODUCE all DOCUMENTS which RELATE TO any data
15 impairment damages YOU claim to have suffered as a result of DEFENDANTS’
16 conduct.
17 RESPONSE TO REQUEST FOR PRODUCTION NO. 38:
18 In addition to the General Objections set forth above and incorporated herein,
19 Plaintiff objects to this Request to the extent that it seeks documents that are
20 protected from discovery by the attorney-client privilege and/or attorney work-
21 product doctrine, or protected by any other applicable privilege or protection.
22 Subject to and without waiving the foregoing objections, Plaintiff will
23 produce responsive, non-privileged documents, to the extent any exist.
24 REQUEST FOR PRODUCTION NO. 39:
25 Please PRODUCE all DOCUMENTS which RELATE TO any harm to
26 YOUR reputation or goodwill that YOU claim to have suffered as a result of
27 DEFENDANTS’ conduct.
28
-22- 51
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 25 of 29 Page ID #:2894

1 RESPONSE TO REQUEST FOR PRODUCTION NO. 39:
2 In addition to the General Objections set forth above and incorporated herein,
3 Plaintiff objects to this Request to the extent that it seeks documents that are
4 protected from discovery by the attorney-client privilege and/or attorney work-
5 product doctrine, or protected by any other applicable privilege or protection.
6 Subject to and without waiving the foregoing objections, Plaintiff will
7 produce responsive, non-privileged documents, to the extent any exist.
8 REQUEST FOR PRODUCTION NO. 40:
9 Please PRODUCE all resignation letters or COMMUNICATIONS from
10 members of BCS’s Board of Directors.
11 RESPONSE TO REQUEST FOR PRODUCTION NO. 40:
12 In addition to the General Objections set forth above and incorporated herein,
13 Plaintiff objects to this Request on the ground that it is not reasonably calculated to
14 lead to the discovery of admissible evidence because it seeks documents that do not
15 relate to the claims or defenses in this case.
16 Subject to and without waiving the foregoing objections, Plaintiff will
17 produce responsive, non-privileged documents, to the extent any exist.
18 REQUEST FOR PRODUCTION NO. 41:
19 Please PRODUCE all resignation letters or COMMUNICATIONS from
20 BCS’s volunteers.
21 RESPONSE TO REQUEST FOR PRODUCTION NO. 41:
22 In addition to the General Objections set forth above and incorporated herein,
23 Plaintiff objects to this Request on the ground that it is not reasonably calculated to
24 lead to the discovery of admissible evidence because it seeks documents that do not
25 relate to the claims or defenses in this case.
26 Subject to and without waiving the foregoing objections, Plaintiff will
27 produce responsive, non-privileged documents, to the extent any exist.
28
-23- 52
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 26 of 29 Page ID #:2895

1 REQUEST FOR PRODUCTION NO. 42:
2 Please PRODUCE all COMMUNICATIONS evidencing or RELATING TO
3 internal complaints RELATING TO BSC’s management.
4 RESPONSE TO REQUEST FOR PRODUCTION NO. 42:
5 In addition to the General Objections set forth above and incorporated herein,
6 Plaintiff objects to this Request on the ground that it is overbroad, unduly
7 burdensome, and not reasonably calculated to lead to the discovery of admissible
8 evidence because it seeks documents from an unlimited time period that do not
9 relate to the claims or defenses in this case. Plaintiff further objects to this Request
10 on the ground that it is vague and ambiguous with respect to the term “internal
11 complaints.”
12 REQUEST FOR PRODUCTION NO. 43:
13 Please PRODUCE YOUR entire case file for the action entitled Breaking
14 Code Silence v. Papciak, et al., CDCA Case No. 3:21-CV-00918 including all
15 pleadings, correspondence, filings, orders, discovery and settlement agreements.
16 RESPONSE TO REQUEST FOR PRODUCTION NO. 43:
17 In addition to the General Objections set forth above and incorporated herein,
18 Plaintiff objects to this Request on the ground that it is overbroad, unduly
19 burdensome, and not reasonably calculated to lead to the discovery of admissible
20 evidence because it seeks documents that do not relate to the claims or defenses in
21 this case. Plaintiff further objects to this Request to the extent the requested
22 documents are subject to any protective order entered in the Papciak litigation.
23 Plaintiff further objects to this Request on the ground that pleadings, filings, and
24 orders are public documents equally accessible to Defendants.
25 REQUEST FOR PRODUCTION NO. 44:
26 Please PRODUCE all trademarks and trademark applications for Breaking
27 Code Silence and related names.
28
-24- 53
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 27 of 29 Page ID #:2896

1 RESPONSE TO REQUEST FOR PRODUCTION NO. 44:
2 In addition to the General Objections set forth above and incorporated herein,
3 Plaintiff objects to this Request on the ground that it is vague and ambiguous with
4 respect to the term “related names.”
5 Subject to and without waiving the foregoing objections, Plaintiff will
6 produce responsive, non-privileged documents, to the extent any exist.
7 REQUEST FOR PRODUCTION NO. 45:
8 Please PRODUCE all DOCUMENTS that RELATE TO the registration and
9 administrative credentials for all BCS social media accounts, domains and archives,
10 including DOCUMENTS that RELATE TO changes, removals and revocations of
11 administrative rights to the accounts, domains and archives.
12 RESPONSE TO REQUEST FOR PRODUCTION NO. 45:
13 In addition to the General Objections set forth above and incorporated herein,
14 Plaintiff objects to this Request to the extent it seeks documents not within
15 Plaintiff’s possession, custody, or control.
16 Subject to and without waiving the foregoing objections, Plaintiff will
17 produce responsive, non-privileged documents, to the extent any exist.
18 REQUEST FOR PRODUCTION NO. 46:
19 Please PRODUCE all COMMUNICATIONS between YOU and Hover
20 RELATED TO the domain.
21 RESPONSE TO REQUEST FOR PRODUCTION NO. 46:
22 Plaintiff incorporates the General Objections set forth above. Subject to and
23 without waiving the foregoing objections, Plaintiff will produce responsive, non-
24 privileged documents, to the extent any exist.
25 REQUEST FOR PRODUCTION NO. 47:
26 Please PRODUCE all DOCUMENTS IDENTIFIED or described by YOU in
27 YOUR Initial Disclosures served on June 7, 2022.
28
-25- 54
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 28 of 29 Page ID #:2897

1 RESPONSE TO REQUEST FOR PRODUCTION NO. 47:
2 Plaintiff incorporates the General Objections set forth above. Subject to and
3 without waiving the foregoing objections, Plaintiff will produce responsive, non-
4 privileged documents, to the extent any exist.
5
6
7 Dated: July 29, 2022 DLA PIPER LLP (US)
8
9
By: /s/ Tamany J. Vinson Bentz
10
TAMANY J. VINSON BENTZ
11 JASON T. LUEDDEKE
12 BENJAMIN GRUSH

13
14 Attorneys for Plaintiff
BREAKING CODE SILENCE
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-26- 55
PLAINTIFF’S RESPONSE TO DEFENDANT KATHERINE MCNAMARA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Case 2:22-cv-02052-MAA Document 94-3 Filed 07/12/23 Page 29 of 29 Page ID #:2898

1 PROOF OF SERVICE BY MAIL
(Fed. R. Civ. Proc. rule 5(b))
2
3 I declare that I am employed with the law firm of DLA Piper LLP (US),
whose address is 2000 Avenue of the Stars, Suite 400 North Tower, Los Angeles,
4 California 90067-4704; I am not a party to the within cause; I am over the age of
5 eighteen years and I am readily familiar with DLA Piper’s practice for collection
and processing of correspondence for mailing with the United States Postal Service
6 and know that in the ordinary course of DLA Piper’s business practice the document
7 described below will be deposited with the United States Postal Service on the same
date that it is placed at DLA Piper with postage thereon fully prepaid for collection
8 and mailing.
9
I further declare that on the date hereof I served a copy of:
10
PLAINTIFF BREAKING CODE SILENCE’S RESPONSES TO
11 DEFENDANT KATHERINE MCNAMARA’S FIRST SET OF
12 REQUESTS FOR PRODUCTION
13 on the following by placing a true copy thereof enclosed in a sealed envelope
14 addressed as follows for collection and mailing at 2000 Avenue of the Stars, Suite
400 North Tower, Los Angeles, California 90067-4704, in accordance with DLA
15 Piper’s ordinary business practices:
16 Catherine A. Close
17 JULANDER BROWN BOLLARD
9110 Irvine Center Drive
18 Irvine, CA 92618
19 Tel: (949) 477-2100
Fax: (949) 477-6355
20 Email: cac@jbblaw.com
21
I declare under penalty of perjury that the above is true and correct. Executed
22 at Los Angeles, California, this 29th day of July, 2022.
23
24 Jason Lueddeke /s/ Jason Lueddeke
25 (typed) (signature)

26
27
28
56
-1-
PROOF OF SERVICE
Case 2:22-cv-02052-MAA Document 94-4 Filed 07/12/23 Page 1 of 4 Page ID #:2899

EXHIBIT 3
Case 2:22-cv-02052-MAA Document 94-4 Filed 07/12/23 Page 2 of 4 Page ID #:2900
56

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).

56
Case 2:22-cv-02052-MAA Document 94-4 Filed 07/12/23 Page 3 of 4 Page ID #:2901
57

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.

57
Case 2:22-cv-02052-MAA Document 94-4 Filed 07/12/23 Page 4 of 4 Page ID #:2902
58

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.

58
Case 2:22-cv-02052-MAA Document 94-5 Filed 07/12/23 Page 1 of 3 Page ID #:2903

EXHIBIT 4
Case 2:22-cv-02052-MAA Document 94-5 Filed 07/12/23 Page 2 of 3 Page ID #:2904

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Tuesday, April 25, 2023 9:24 AM
To: Adam Tate <Adam@jbblaw.com>
Cc: Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P. Saller <helene@jbblaw.com>; Catherine Close
<cac@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>
Subject: Breaking Code Silence v. McNamara, et al.

Adam,

During the IDC yesterday, you requested the Bates numbers for the four Slack logs BCS produced in its volume
BCS001.  They are:

BCS0000316
BCS0000317
BCS0000318
BCS0000319

Please let us know if you have any questions.

Dennis

Dennis Russell Kiker
Senior Attorney

T +1 480 606 5143 DLA Piper LLP (US)
F +1 703 773 5111 One Fountain Square
M +1 804 350 8444 11911 Freedom Drive, Suite 300
O +1 703 773 4111 Reston, VA 20190-5602
dennis.kiker@us.dlapiper.com

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
1

59
Case 2:22-cv-02052-MAA Document 94-5 Filed 07/12/23 Page 3 of 3 Page ID #:2905
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

60
Case 2:22-cv-02052-MAA Document 94-6 Filed 07/12/23 Page 1 of 2 Page ID #:2906

EXHIBIT 5
Case 2:22-cv-02052-MAA Document 94-6 Filed 07/12/23 Page 2 of 2 Page ID #:2907

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Thursday, May 4, 2023 3:07 PM
To: Adam Tate
Cc: Adam J Schwartz; Brown, Michael P.; Grush, Benjamin; Bentz, Tamany; Jones, Benjamin; Dirk Julander;
Catherine Close; Adam Tate; Bekah Chamberlin; Helene P. Saller
Subject: BCS v. McNamara, et al.

Adam,

We are sending an additional set of Slack documents via ShareFile shortly.  We identified these three documents during
an exhaustive review of the unproduced population. Together with the documents previously produced, we have
produced a total of 35 documents from Slack. No documents have been withheld on the basis of privilege.  I have
personally reviewed all 1,148 documents and confirmed that these are the only even marginally relevant documents.
The balance date back to mid‐2021 and include discussions on such topics as:

 Personal, non‐business matters (recipes, pets, plants, popular shows)
 A Slack trivia game
 Discussions about upcoming protests, legislation or other TII‐related topics
 Many of the threads include personal photographs and some have highly personal information about the
participants’ experiences in the TTI and ongoing related trauma.

None of this information is relevant to the claims or defenses in this matter.

Regards,

Dennis Russell Kiker
Senior Attorney

T +1 480 606 5143 DLA Piper LLP (US)
F +1 703 773 5111 One Fountain Square
M +1 804 350 8444 11911 Freedom Drive, Suite 300
O +1 703 773 4111 Reston, VA 20190-5602
dennis.kiker@us.dlapiper.com

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,
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61
Case 2:22-cv-02052-MAA Document 94-9 Filed 07/12/23 Page 1 of 5 Page ID #:3022

EXHIBIT 8
Case 2:22-cv-02052-MAA Document 94-9 Filed 07/12/23 Page 2 of 5 Page ID #:3023

From: Adam Tate
Sent: Thursday, May 18, 2023 11:01 AM
To: Kiker, Dennis
Cc: Adam J Schwartz; Brown, Michael P.; Grush, Benjamin; Bentz, Tamany; Jones, Benjamin; Catherine
Close; Bekah Chamberlin; Helene P. Saller
Subject: RE: BCS v. McNamara, et al.

Follow Up Flag: Follow up
Flag Status: Flagged

Dennis,

I think I have figured out the disconnect.  Can you please confirm three things for me:

1. Plaintiff only produced Slack communications from the public Slack channels.  Plaintiff did not produce any
information from the private Slack channels or the direct messages (i.e. where you would expect the relevant
communications to be).
2. Plaintiff did not contact Slack to request the ability to export data from all channels and conversations, including
the private channels and direct messages.
3. Plaintiff also did not manually pull up the private Slack channels or the direct messages in order to be able to
produce the relevant Slack communications.

Thanks,

Adam

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Friday, May 05, 2023 1:56 PM
To: Adam Tate <Adam@jbblaw.com>
Cc: Adam J Schwartz <adam@ajschwartzlaw.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Jones, Benjamin
<Benjamin.Jones@us.dlapiper.com>; Dirk Julander <doj@jbblaw.com>; Catherine Close <cac@jbblaw.com>; Bekah
Chamberlin <Bekah@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>
Subject: RE: BCS v. McNamara, et al.

Adam,

The Bates numbers for the Slack documents are: BCS_0574083 ‐ BCS_0574185; BCS_0574539 ‐ BCS_0574545.

Without parsing the Q&A in Mr. Jensen’s deposition, we can say that “documents” and “communications” are not
synonymous with regard to Slack (or other messaging data). Slack channel communications begin when the channel is
created and can span months or even years and include hundreds or thousands of messages.  For purposes of review,
we have broken the Slack data into threads where there is more than an 8 hour gap between messages. Each document
will typically include multiple messages.

Incidentally, speaking of messaging productions, we have noted that your production of messaging data for Ms.
McNamara includes 4,192 document in RSMF format and another 3949 documents that are a combination of XML, txt
and image files (see, e.g., DEF‐0062258, DEF‐0062259, .  We initially guessed that you had produced both RSMF and
1

174
Case 2:22-cv-02052-MAA Document 94-9 Filed 07/12/23 Page 3 of 5 Page ID #:3024

native formats for everything, but the file counts don’t support that conclusion, and we have seen content in the RSMF
documents that do not appear anywhere else.  For example, in DEF‐0062180, the very first message from Ms.
McNamara is a unique sentence  that appears nowhere else in the data.  Please let us know what it is we are seeing in
this data set and, as appropriate, please replace the XML, txt and image files with documents reasonably suitable for
review.

Lastly, we have posted additional documents for production.  You will be receiving a link from Ben Jones this
afternoon.  Let us know if you have any questions.

Dennis

Dennis Russell Kiker
Senior Attorney

T +1 480 606 5143
F +1 703 773 5111
M +1 804 350 8444
O +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Thursday, May 4, 2023 8:16 PM
To: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Cc: Adam J Schwartz <adam@ajschwartzlaw.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Jones, Benjamin
<Benjamin.Jones@us.dlapiper.com>; Dirk Julander <doj@jbblaw.com>; Catherine Close <cac@jbblaw.com>; Bekah
Chamberlin <Bekah@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>
Subject: RE: BCS v. McNamara, et al.

EXTERNAL MESSAGE

Dennis,

In order to make sure we are on the same page, can you give me the bates numbers to the 35 slack documents you are
referring to?

At his deposition as a PMK, Jesse Jensen was asked ballpark the number of slack communications between BCS
members relating to the allegations against my clients.  His response was “Less than 300” and he went on to explain that
“there was a lot of information that went back and forth there…”  (272:17‐24)

Are you able to explain the apparent discrepancy between his testimony and your representation that there are only 35
even marginally relevant documents.

Thanks,

Adam

2

175
Case 2:22-cv-02052-MAA Document 94-9 Filed 07/12/23 Page 4 of 5 Page ID #:3025

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Thursday, May 04, 2023 3:07 PM
To: Adam Tate <Adam@jbblaw.com>
Cc: Adam J Schwartz <adam@ajschwartzlaw.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Jones, Benjamin
<Benjamin.Jones@us.dlapiper.com>; Dirk Julander <doj@jbblaw.com>; Catherine Close <cac@jbblaw.com>; Adam Tate
<Adam@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>
Subject: BCS v. McNamara, et al.

Adam,

We are sending an additional set of Slack documents via ShareFile shortly.  We identified these three documents during
an exhaustive review of the unproduced population. Together with the documents previously produced, we have
produced a total of 35 documents from Slack. No documents have been withheld on the basis of privilege.  I have
personally reviewed all 1,148 documents and confirmed that these are the only even marginally relevant documents.
The balance date back to mid‐2021 and include discussions on such topics as:

 Personal, non‐business matters (recipes, pets, plants, popular shows)
 A Slack trivia game
 Discussions about upcoming protests, legislation or other TII‐related topics
 Many of the threads include personal photographs and some have highly personal information about the
participants’ experiences in the TTI and ongoing related trauma.

None of this information is relevant to the claims or defenses in this matter.

Regards,

Dennis Russell Kiker
Senior Attorney

T +1 480 606 5143 DLA Piper LLP (US)
F +1 703 773 5111 One Fountain Square
M +1 804 350 8444 11911 Freedom Drive, Suite 300
O +1 703 773 4111 Reston, VA 20190-5602
dennis.kiker@us.dlapiper.com

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
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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,
copying, distribution, review or use of the contents of the information received in error is strictly prohibited.

3

176
Case 2:22-cv-02052-MAA Document 94-9 Filed 07/12/23 Page 5 of 5 Page ID #:3026

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
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4

177
Case 2:22-cv-02052-MAA Document 94-10 Filed 07/12/23 Page 1 of 4 Page ID #:3027
Case 2:22-cv-02052-MAA Document 94-10 Filed 07/12/23 Page 2 of 4 Page ID #:3028

From: Bentz, Tamany
To: Adam Tate; Helene P. Saller; Lueddeke, Jason; Grush, Benjamin; Brown, Michael P.
Cc: Catherine Close; Adam J Schwartz; Helene P. Saller; Kiker, Dennis
Subject: RE: Breaking Code Silence v. McNamara, et al.
Date: Monday, June 19, 2023 11:07:04 AM

Adam,

Thank you for your email.

With respect to Slack, it does not appear to us that there is a dispute. As we have previously
informed you, BCS’s Slack license does not provide for export of private channels or DMs.
Nonetheless, BCS was working with our vendor, Consilio, to screen shot communications from
private channels and DMs relating to the allegations in the complaint and the resulting
investigation.

With respect to the Rule 37 motion, the interrogatory response you rely on to identify the Board
members is incorrect. My understanding is that it is a mistake on Messner’s part and that it has
been fixed. To be clear, neither Ms. Saberi, Ms. Boyd-King nor Ms. Hassanpour were ever on the
Board. Also, since they were not on the Board we are withdrawing our confidentiality designation
on the documents you included as Exhibit 12 and those do not need to be filed under seal. We
cannot tell from your list whether that streamlines your motion, but we expect it at least resolves
the issue of who is or was on the Board of BCS.

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: Friday, June 16, 2023 2:58 PM
To: Helene P. Saller <helene@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

EXTERNAL MESSAGE

174
Case 2:22-cv-02052-MAA Document 94-10 Filed 07/12/23 Page 3 of 4 Page ID #:3029

Counsel,

You have undoubtedly seen our motions by now as well as the Court’s order requiring us to a Local
Rule 37-2 joint stipulation. We are in the process of converting the motions into our half of the joint
stipulation, but I wanted to see if we can narrow the issues even further. Below are the issues we
have identified, please let us know if we can narrow the issues, you agree with the issues, or you
wish to propose different or additional issues.

For the motion regarding Slack:

1. Whether BCS Should Be Compelled to Produce Slack Communications Based on its
Agreement to Do So.
2. Whether BCS Should Be Compelled to Produce Slack Communications Based on the
Court’s Orders.
3. Whether BCS Has Withheld or Deleted Critical Slack Communications.
4. Whether the Court Should Impose Monetary Sanctions Against BCS and its Counsel.

For the motion regarding the Custodians and Data Sources:

1. Whether Plaintiff Violated a Court Order by Failing to Collect From All Custodians
Listed in the EDO.
2. Whether Plaintiff Violated a Court Order by Failing to Collect From All Data Sources
as Required by the EDO.
3. Whether Plaintiff’s Violations of the EDO Prejudiced Defendants.
4. Whether the Court Should Compel the Production of Documents in the Control of
Plaintiff’s Current Officers and Directors.
5. Whether Plaintiff and its Counsel Should be Sanctioned and the Nature and Scope of
Appropriate Sanctions.

Please respond to this email as soon as possible, by not later than noon on Monday.

Thanks,

Adam

Helene P. Saller
Paralegal

949-988-3640
Helene@jbblaw.com
www.jbblaw.com

175
Case 2:22-cv-02052-MAA Document 94-10 Filed 07/12/23 Page 4 of 4 Page ID #:3030

9110 Irvine Center Drive, Irvine, CA 92618

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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.

176
Case 2:22-cv-02052-MAA Document 94-11 Filed 07/12/23 Page 1 of 6 Page ID #:3031
Case 2:22-cv-02052-MAA Document 94-11 Filed 07/12/23 Page 2 of 6 Page ID #:3032

From: Adam Tate
To: Bentz, Tamany; Helene P. Saller; Lueddeke, Jason; Grush, Benjamin; Brown, Michael P.
Cc: Catherine Close; Adam J Schwartz; Helene P. Saller; Kiker, Dennis; Bekah Chamberlin
Subject: RE: Breaking Code Silence v. McNamara, et al.
Date: Monday, June 19, 2023 11:48:18 AM
Attachments: Consilio-Fact-Sheet-Slack-Data-eDiscovery-Powered-by-Consilio-Complete-Chat-ENG.pdf

Tamany,

This the first time you have told us that BCS’s slack license does not provide for export of private
channels or DMs. To be clear, you previously informed us that your license prevented you from
obtaining slack audit logs, but not the messages. I note that Consilio’s information page specifically
states that they can ingest from private channels and DMS with the license that BCS has (please see
attached.) Can you please forward me something from Consilio supporting your position that BCS
supposedly cannot obtain the private channels or direct messages?

Your email is also unclear about your process of screenshotting the Slack. Has that already been
done? If not, will the screenshots be included in your production due on June 30th? If not, why not?

With respect to the Rule 37 motion. I am going to need an explanation of how BCS could have
supposedly made such a mistake. You would think that BCS would know who its board of directors is
when it made the discovery response. It all seems very convenient. It seems more likely to me that
your client lied to you and then you repeated the lie to the Court.

-Adam

From: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>
Sent: Monday, June 19, 2023 11:07 AM
To: Adam Tate <Adam@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

Thank you for your email.

With respect to Slack, it does not appear to us that there is a dispute. As we have previously
informed you, BCS’s Slack license does not provide for export of private channels or DMs.
Nonetheless, BCS was working with our vendor, Consilio, to screen shot communications from
private channels and DMs relating to the allegations in the complaint and the resulting
investigation.

177
Case 2:22-cv-02052-MAA Document 94-11 Filed 07/12/23 Page 3 of 6 Page ID #:3033

With respect to the Rule 37 motion, the interrogatory response you rely on to identify the Board
members is incorrect. My understanding is that it is a mistake on Messner’s part and that it has
been fixed. To be clear, neither Ms. Saberi, Ms. Boyd-King nor Ms. Hassanpour were ever on the
Board. Also, since they were not on the Board we are withdrawing our confidentiality designation
on the documents you included as Exhibit 12 and those do not need to be filed under seal. We
cannot tell from your list whether that streamlines your motion, but we expect it at least resolves
the issue of who is or was on the Board of BCS.

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: Friday, June 16, 2023 2:58 PM
To: Helene P. Saller <helene@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

EXTERNAL MESSAGE

Counsel,

You have undoubtedly seen our motions by now as well as the Court’s order requiring us to a Local
Rule 37-2 joint stipulation. We are in the process of converting the motions into our half of the joint
stipulation, but I wanted to see if we can narrow the issues even further. Below are the issues we
have identified, please let us know if we can narrow the issues, you agree with the issues, or you
wish to propose different or additional issues.

For the motion regarding Slack:

1. Whether BCS Should Be Compelled to Produce Slack Communications Based on its
Agreement to Do So.
2. Whether BCS Should Be Compelled to Produce Slack Communications Based on the
Court’s Orders.

178
Case 2:22-cv-02052-MAA Document 94-11 Filed 07/12/23 Page 4 of 6 Page ID #:3034

3. Whether BCS Has Withheld or Deleted Critical Slack Communications.
4. Whether the Court Should Impose Monetary Sanctions Against BCS and its Counsel.

For the motion regarding the Custodians and Data Sources:

1. Whether Plaintiff Violated a Court Order by Failing to Collect From All Custodians
Listed in the EDO.
2. Whether Plaintiff Violated a Court Order by Failing to Collect From All Data Sources
as Required by the EDO.
3. Whether Plaintiff’s Violations of the EDO Prejudiced Defendants.
4. Whether the Court Should Compel the Production of Documents in the Control of
Plaintiff’s Current Officers and Directors.
5. Whether Plaintiff and its Counsel Should be Sanctioned and the Nature and Scope of
Appropriate Sanctions.

Please respond to this email as soon as possible, by not later than noon on Monday.

Thanks,

Adam

Helene P. Saller
Paralegal

949-988-3640
Helene@jbblaw.com
www.jbblaw.com

9110 Irvine Center Drive, Irvine, CA 92618

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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.

179
Case 2:22-cv-02052-MAA Document 94-11 Filed 07/12/23 Page 5 of 6 Page ID #:3035

180
Case 2:22-cv-02052-MAA Document 94-11 Filed 07/12/23 Page 6 of 6 Page ID #:3036

181
Case 2:22-cv-02052-MAA Document 94-12 Filed 07/12/23 Page 1 of 4 Page ID #:3037
Case 2:22-cv-02052-MAA Document 94-12 Filed 07/12/23 Page 2 of 4 Page ID #:3038

From: Kiker, Dennis
To: Adam Tate
Cc: Adam J Schwartz; Helene P. Saller; Catherine Close; Lueddeke, Jason; Bentz, Tamany; Grush, Benjamin
Subject: RE: Breaking Code Silence v. McNamara, et al.
Attachments: image001.png

Adam,

Thanks for your message. The Bates numbers I provided were for the Slack logs that are available to
BCS. BCS is on the Slack Pro Plan, which is donated by Slack under its nonprofits discount program.
Audit logs are only available with the Enterprise Grid plan, which is for organizations with 1,000 or
more people. In fact, the article you sent specifically references Enterprise Grid plans.

Sorry for any confusion.

Dennis

Dennis Russell Kiker
Senior Attorney

T +1 480 606 5143
F +1 703 773 5111
M +1 804 350 8444
O +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Tuesday, April 25, 2023 2:22 PM
To: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Cc: Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P. Saller <helene@jbblaw.com>;
Catherine Close <cac@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Bentz,
Tamany <Tamany.Bentz@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

EXTERNAL MESSAGE

Dennis,

These are not slack audit logs. Slack audit logs show, among other things, who
made what comments and when and whether there were any edits, deletions,
etc.

182
Case 2:22-cv-02052-MAA Document 94-12 Filed 07/12/23 Page 3 of 4 Page ID #:3039

Here is an article on how to obtain the audit logs.

https://slack.com/help/articles/360000394286-Audit-logs-on-Enterprise-Grid

Here is a general guide on Slack eDiscovery.

https://slack.com/help/articles/360002079527-A-guide-to-Slacks-Discovery-
APIs

Let me know if you have any questions, and if not, when we can expect the
audit logs.

Thanks,

Adam

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Tuesday, April 25, 2023 9:24 AM
To: Adam Tate <Adam@jbblaw.com>
Cc: Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P. Saller <helene@jbblaw.com>;
Catherine Close <cac@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Bentz,
Tamany <Tamany.Bentz@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>
Subject: Breaking Code Silence v. McNamara, et al.

Adam,

During the IDC yesterday, you requested the Bates numbers for the four Slack logs BCS produced in
its volume BCS001. They are:

BCS0000316
BCS0000317
BCS0000318
BCS0000319

Please let us know if you have any questions.

Dennis

Dennis Russell Kiker
Senior Attorney

183
T +1 480 606 5143 DLA Piper LLP (US)
F +1 703 773 5111 One Fountain Square
M +1 804 350 8444 11911 Freedom Drive, Suite 300
O +1 703 773 4111 Reston, VA 20190-5602
dennis.kiker@us.dlapiper.com
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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.
Case 2:22-cv-02052-MAA Document 94-12 Filed 07/12/23 Page 4 of 4 Page ID #:3040
184
Case 2:22-cv-02052-MAA Document 94-13 Filed 07/12/23 Page 1 of 6 Page ID #:3041

EXHIBIT 12
Case 2:22-cv-02052-MAA Document 94-13 Filed 07/12/23 Page 2 of 6 Page ID #:3042

From: Adam Tate
To: Kiker, Dennis; Bentz, Tamany; Helene P. Saller; Lueddeke, Jason; Grush, Benjamin; Brown, Michael P.
Cc: Catherine Close; Adam J Schwartz; Helene P. Saller; Bekah Chamberlin
Subject: RE: Breaking Code Silence v. McNamara, et al.
Date: Monday, June 19, 2023 12:10:00 PM

Dennis,

While I appreciate your email, Consilio’s page seems to suggest that it can ingest the private
channels and the DMs.  Can you get me something from them that says that they cannot do so?

Since you are pointing to Slack’s help center, Slack says that regardless of the level, workplace
owners may contact Slack and apply to export data from private channels and direct messages.
https://slack.com/help/articles/204897248-Guide-to-Slack-import-and-export-
tools#h_01EJ96AV9MF56A2RHKES5JCWE7.  Have you done this?

Please also answer the other questions in my email – specifically with regards to slack, has the
screenshotting been completed? If not, when will it be done?

-Adam

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Monday, June 19, 2023 12:03 PM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P.
Saller <helene@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown, Michael P.
<Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

With regard to Slack, we have previously advised that BCS has the Pro plan, through the Slack for
non-profits program. At the time, the discussion was about audit logs, but there are similar
limitations with regard to private channels and DMs, as you can see on Slack’s website:
https://slack.com/help/articles/201658943-Export-your-workspace-data.

Regards,

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143

185
Case 2:22-cv-02052-MAA Document 94-13 Filed 07/12/23 Page 3 of 6 Page ID #:3043

F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Monday, June 19, 2023 2:48 PM
To: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bekah Chamberlin
<Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

⚠EXTERNAL MESSAGE
Tamany,

This the first time you have told us that BCS’s slack license does not provide for export of private
channels or DMs.  To be clear, you previously informed us that your license prevented you from
obtaining slack audit logs, but not the messages. I note that Consilio’s information page specifically
states that they can ingest from private channels and DMS with the license that BCS has (please see
attached.)  Can you please forward me something from Consilio supporting your position that BCS
supposedly cannot obtain the private channels or direct messages?

Your email is also unclear about your process of screenshotting the Slack.  Has that already been
done?  If not, will the screenshots be included in your production due on June 30th?  If not, why not?

With respect to the Rule 37 motion. I am going to need an explanation of how BCS could have
supposedly made such a mistake.  You would think that BCS would know who its board of directors is
when it made the discovery response.  It all seems very convenient.  It seems more likely to me that
your client lied to you and then you repeated the lie to the Court.

-Adam

From: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>
Sent: Monday, June 19, 2023 11:07 AM
To: Adam Tate <Adam@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>

186
Case 2:22-cv-02052-MAA Document 94-13 Filed 07/12/23 Page 4 of 6 Page ID #:3044

Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

Thank you for your email.

With respect to Slack, it does not appear to us that there is a dispute.  As we have previously
informed you, BCS’s Slack license does not provide for export of private channels or DMs.
Nonetheless, BCS was working with our vendor, Consilio, to screen shot communications from
private channels and DMs relating to the allegations in the complaint and the resulting
investigation.

With respect to the Rule 37 motion, the interrogatory response you rely on to identify the Board
members is incorrect.  My understanding is that it is a mistake on Messner’s part and that it has
been fixed.  To be clear, neither Ms. Saberi, Ms. Boyd-King nor Ms. Hassanpour were ever on the
Board.  Also, since they were not on the Board we are withdrawing our confidentiality designation
on the documents you included as Exhibit 12 and those do not need to be filed under seal.  We
cannot tell from your list whether that streamlines your motion, but we expect it at least resolves
the issue of who is or was on the Board of BCS.

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: Friday, June 16, 2023 2:58 PM
To: Helene P. Saller <helene@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Counsel,

187
Case 2:22-cv-02052-MAA Document 94-13 Filed 07/12/23 Page 5 of 6 Page ID #:3045

You have undoubtedly seen our motions by now as well as the Court’s order requiring us to a Local
Rule 37-2 joint stipulation.  We are in the process of converting the motions into our half of the joint
stipulation, but I wanted to see if we can narrow the issues even further.  Below are the issues we
have identified, please let us know if we can narrow the issues, you agree with the issues, or you
wish to propose different or additional issues.

For the motion regarding Slack:

1.           Whether BCS Should Be Compelled to Produce Slack Communications Based on its
Agreement to Do So.
2.           Whether BCS Should Be Compelled to Produce Slack Communications Based on the
Court’s Orders.
3.           Whether BCS Has Withheld or Deleted Critical Slack Communications.
4.           Whether the Court Should Impose Monetary Sanctions Against BCS and its Counsel.

For the motion regarding the Custodians and Data Sources:

1.           Whether Plaintiff Violated a Court Order by Failing to Collect From All Custodians
Listed in the EDO.
2.           Whether Plaintiff Violated a Court Order by Failing to Collect From All Data Sources
as Required by the EDO.
3.           Whether Plaintiff’s Violations of the EDO Prejudiced Defendants.
4.           Whether the Court Should Compel the Production of Documents in the Control of
Plaintiff’s Current Officers and Directors.
5.           Whether Plaintiff and its Counsel Should be Sanctioned and the Nature and Scope of
Appropriate Sanctions.

Please respond to this email as soon as possible, by not later than noon on Monday.

Thanks,

Adam

Helene P. Saller
Paralegal

Ill □  949-988-3640
□  —-­
Helene@jbblaw.com
www.jbblaw.com
□ —-

9110 Irvine Center Drive, Irvine, CA 92618

188
Case 2:22-cv-02052-MAA Document 94-13 Filed 07/12/23 Page 6 of 6 Page ID #:3046

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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.

189
Case 2:22-cv-02052-MAA Document 94-14 Filed 07/12/23 Page 1 of 7 Page ID #:3047

EXHIBIT 13
Case 2:22-cv-02052-MAA Document 94-14 Filed 07/12/23 Page 2 of 7 Page ID #:3048

From: Kiker, Dennis
To: Adam Tate; Bentz, Tamany; Helene P. Saller; Lueddeke, Jason; Grush, Benjamin; Brown, Michael P.
Cc: Catherine Close; Adam J Schwartz; Helene P. Saller; Bekah Chamberlin
Subject: RE: Breaking Code Silence v. McNamara, et al.
Date: Tuesday, June 20, 2023 9:27:37 AM

Adam,

It is our understanding that Consilio’s capabilities are necessarily limited by the Slack license
permissions.  This is, in fact, why we are working with a forensics expert to determine the best
collection methodology under the circumstances.  The process is not complete, but we will provide
you with a production date once we have it from the forensics expert.

Thanks, Dennis

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Monday, June 19, 2023 3:10 PM
To: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

⚠EXTERNAL MESSAGE
Dennis,

While I appreciate your email, Consilio’s page seems to suggest that it can ingest the private
channels and the DMs.  Can you get me something from them that says that they cannot do so?

Since you are pointing to Slack’s help center, Slack says that regardless of the level, workplace
owners may contact Slack and apply to export data from private channels and direct messages.
https://slack.com/help/articles/204897248-Guide-to-Slack-import-and-export-
tools#h_01EJ96AV9MF56A2RHKES5JCWE7.  Have you done this?

190
Case 2:22-cv-02052-MAA Document 94-14 Filed 07/12/23 Page 3 of 7 Page ID #:3049

Please also answer the other questions in my email – specifically with regards to slack, has the
screenshotting been completed? If not, when will it be done?

-Adam

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Monday, June 19, 2023 12:03 PM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P.
Saller <helene@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown, Michael P.
<Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

With regard to Slack, we have previously advised that BCS has the Pro plan, through the Slack for
non-profits program. At the time, the discussion was about audit logs, but there are similar
limitations with regard to private channels and DMs, as you can see on Slack’s website:
https://slack.com/help/articles/201658943-Export-your-workspace-data.

Regards,

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Monday, June 19, 2023 2:48 PM
To: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bekah Chamberlin
<Bekah@jbblaw.com>

191
Case 2:22-cv-02052-MAA Document 94-14 Filed 07/12/23 Page 4 of 7 Page ID #:3050

Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Tamany,

This the first time you have told us that BCS’s slack license does not provide for export of private
channels or DMs.  To be clear, you previously informed us that your license prevented you from
obtaining slack audit logs, but not the messages. I note that Consilio’s information page specifically
states that they can ingest from private channels and DMS with the license that BCS has (please see
attached.)  Can you please forward me something from Consilio supporting your position that BCS
supposedly cannot obtain the private channels or direct messages?

Your email is also unclear about your process of screenshotting the Slack.  Has that already been
done?  If not, will the screenshots be included in your production due on June 30th?  If not, why not?

With respect to the Rule 37 motion. I am going to need an explanation of how BCS could have
supposedly made such a mistake.  You would think that BCS would know who its board of directors is
when it made the discovery response.  It all seems very convenient.  It seems more likely to me that
your client lied to you and then you repeated the lie to the Court.

-Adam

From: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>
Sent: Monday, June 19, 2023 11:07 AM
To: Adam Tate <Adam@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

Thank you for your email.

With respect to Slack, it does not appear to us that there is a dispute.  As we have previously
informed you, BCS’s Slack license does not provide for export of private channels or DMs.
Nonetheless, BCS was working with our vendor, Consilio, to screen shot communications from
private channels and DMs relating to the allegations in the complaint and the resulting
investigation.
192
Case 2:22-cv-02052-MAA Document 94-14 Filed 07/12/23 Page 5 of 7 Page ID #:3051

With respect to the Rule 37 motion, the interrogatory response you rely on to identify the Board
members is incorrect.  My understanding is that it is a mistake on Messner’s part and that it has
been fixed.  To be clear, neither Ms. Saberi, Ms. Boyd-King nor Ms. Hassanpour were ever on the
Board.  Also, since they were not on the Board we are withdrawing our confidentiality designation
on the documents you included as Exhibit 12 and those do not need to be filed under seal.  We
cannot tell from your list whether that streamlines your motion, but we expect it at least resolves
the issue of who is or was on the Board of BCS.

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: Friday, June 16, 2023 2:58 PM
To: Helene P. Saller <helene@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Counsel,

You have undoubtedly seen our motions by now as well as the Court’s order requiring us to a Local
Rule 37-2 joint stipulation.  We are in the process of converting the motions into our half of the joint
stipulation, but I wanted to see if we can narrow the issues even further.  Below are the issues we
have identified, please let us know if we can narrow the issues, you agree with the issues, or you
wish to propose different or additional issues.

For the motion regarding Slack:

1.           Whether BCS Should Be Compelled to Produce Slack Communications Based on its
Agreement to Do So.
2.           Whether BCS Should Be Compelled to Produce Slack Communications Based on the
Court’s Orders.
3.           Whether BCS Has Withheld or Deleted Critical Slack Communications.

193
Case 2:22-cv-02052-MAA Document 94-14 Filed 07/12/23 Page 6 of 7 Page ID #:3052

4.           Whether the Court Should Impose Monetary Sanctions Against BCS and its Counsel.

For the motion regarding the Custodians and Data Sources:

1.           Whether Plaintiff Violated a Court Order by Failing to Collect From All Custodians
Listed in the EDO.
2.           Whether Plaintiff Violated a Court Order by Failing to Collect From All Data Sources
as Required by the EDO.
3.           Whether Plaintiff’s Violations of the EDO Prejudiced Defendants.
4.           Whether the Court Should Compel the Production of Documents in the Control of
Plaintiff’s Current Officers and Directors.
5.           Whether Plaintiff and its Counsel Should be Sanctioned and the Nature and Scope of
Appropriate Sanctions.

Please respond to this email as soon as possible, by not later than noon on Monday.

Thanks,

Adam

Helene P. Saller
Paralegal

949-988-3640
Helene@jbblaw.com
www.jbblaw.com

9110 Irvine Center Drive, Irvine, CA 92618

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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

194
Case 2:22-cv-02052-MAA Document 94-14 Filed 07/12/23 Page 7 of 7 Page ID #:3053

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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.

195
Case 2:22-cv-02052-MAA Document 94-15 Filed 07/12/23 Page 1 of 7 Page ID #:3054

EXHIBIT 14
Case 2:22-cv-02052-MAA Document 94-15 Filed 07/12/23 Page 2 of 7 Page ID #:3055

From: Adam Tate
To: Kiker, Dennis; Bentz, Tamany; Helene P. Saller; Lueddeke, Jason; Grush, Benjamin; Brown, Michael P.
Cc: Catherine Close; Adam J Schwartz; Helene P. Saller; Bekah Chamberlin
Subject: RE: Breaking Code Silence v. McNamara, et al.
Date: Tuesday, June 20, 2023 10:07:47 AM

Dennis,

This the third time I am asking this question and I would appreciate a direct answer:  Has BCS or
anyone on its behalf contacted Slack to apply to export data from private channels and direct
messages?  If not, why not?

Thank you,

Adam

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Tuesday, June 20, 2023 9:27 AM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P.
Saller <helene@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown, Michael P.
<Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

It is our understanding that Consilio’s capabilities are necessarily limited by the Slack license
permissions.  This is, in fact, why we are working with a forensics expert to determine the best
collection methodology under the circumstances.  The process is not complete, but we will provide
you with a production date once we have it from the forensics expert.

Thanks, Dennis

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>

196
Case 2:22-cv-02052-MAA Document 94-15 Filed 07/12/23 Page 3 of 7 Page ID #:3056

Sent: Monday, June 19, 2023 3:10 PM
To: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Dennis,

While I appreciate your email, Consilio’s page seems to suggest that it can ingest the private
channels and the DMs.  Can you get me something from them that says that they cannot do so?

Since you are pointing to Slack’s help center, Slack says that regardless of the level, workplace
owners may contact Slack and apply to export data from private channels and direct messages.
https://slack.com/help/articles/204897248-Guide-to-Slack-import-and-export-
tools#h_01EJ96AV9MF56A2RHKES5JCWE7.  Have you done this?

Please also answer the other questions in my email – specifically with regards to slack, has the
screenshotting been completed? If not, when will it be done?

-Adam

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Monday, June 19, 2023 12:03 PM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P.
Saller <helene@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown, Michael P.
<Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

With regard to Slack, we have previously advised that BCS has the Pro plan, through the Slack for
non-profits program. At the time, the discussion was about audit logs, but there are similar
limitations with regard to private channels and DMs, as you can see on Slack’s website:
https://slack.com/help/articles/201658943-Export-your-workspace-data.

197
Case 2:22-cv-02052-MAA Document 94-15 Filed 07/12/23 Page 4 of 7 Page ID #:3057

Regards,

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Monday, June 19, 2023 2:48 PM
To: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bekah Chamberlin
<Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Tamany,

This the first time you have told us that BCS’s slack license does not provide for export of private
channels or DMs.  To be clear, you previously informed us that your license prevented you from
obtaining slack audit logs, but not the messages. I note that Consilio’s information page specifically
states that they can ingest from private channels and DMS with the license that BCS has (please see
attached.)  Can you please forward me something from Consilio supporting your position that BCS
supposedly cannot obtain the private channels or direct messages?

Your email is also unclear about your process of screenshotting the Slack.  Has that already been
done?  If not, will the screenshots be included in your production due on June 30th?  If not, why not?

With respect to the Rule 37 motion. I am going to need an explanation of how BCS could have
supposedly made such a mistake.  You would think that BCS would know who its board of directors is
when it made the discovery response.  It all seems very convenient.  It seems more likely to me that
your client lied to you and then you repeated the lie to the Court.

-Adam

198
Case 2:22-cv-02052-MAA Document 94-15 Filed 07/12/23 Page 5 of 7 Page ID #:3058

From: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>
Sent: Monday, June 19, 2023 11:07 AM
To: Adam Tate <Adam@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

Thank you for your email.

With respect to Slack, it does not appear to us that there is a dispute.  As we have previously
informed you, BCS’s Slack license does not provide for export of private channels or DMs.
Nonetheless, BCS was working with our vendor, Consilio, to screen shot communications from
private channels and DMs relating to the allegations in the complaint and the resulting
investigation.

With respect to the Rule 37 motion, the interrogatory response you rely on to identify the Board
members is incorrect.  My understanding is that it is a mistake on Messner’s part and that it has
been fixed.  To be clear, neither Ms. Saberi, Ms. Boyd-King nor Ms. Hassanpour were ever on the
Board.  Also, since they were not on the Board we are withdrawing our confidentiality designation
on the documents you included as Exhibit 12 and those do not need to be filed under seal.  We
cannot tell from your list whether that streamlines your motion, but we expect it at least resolves
the issue of who is or was on the Board of BCS.

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: Friday, June 16, 2023 2:58 PM
To: Helene P. Saller <helene@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>

199
Case 2:22-cv-02052-MAA Document 94-15 Filed 07/12/23 Page 6 of 7 Page ID #:3059

Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Counsel,

You have undoubtedly seen our motions by now as well as the Court’s order requiring us to a Local
Rule 37-2 joint stipulation.  We are in the process of converting the motions into our half of the joint
stipulation, but I wanted to see if we can narrow the issues even further.  Below are the issues we
have identified, please let us know if we can narrow the issues, you agree with the issues, or you
wish to propose different or additional issues.

For the motion regarding Slack:

1.           Whether BCS Should Be Compelled to Produce Slack Communications Based on its
Agreement to Do So.
2.           Whether BCS Should Be Compelled to Produce Slack Communications Based on the
Court’s Orders.
3.           Whether BCS Has Withheld or Deleted Critical Slack Communications.
4.           Whether the Court Should Impose Monetary Sanctions Against BCS and its Counsel.

For the motion regarding the Custodians and Data Sources:

1.           Whether Plaintiff Violated a Court Order by Failing to Collect From All Custodians
Listed in the EDO.
2.           Whether Plaintiff Violated a Court Order by Failing to Collect From All Data Sources
as Required by the EDO.
3.           Whether Plaintiff’s Violations of the EDO Prejudiced Defendants.
4.           Whether the Court Should Compel the Production of Documents in the Control of
Plaintiff’s Current Officers and Directors.
5.           Whether Plaintiff and its Counsel Should be Sanctioned and the Nature and Scope of
Appropriate Sanctions.

Please respond to this email as soon as possible, by not later than noon on Monday.

Thanks,

Adam

200
Case 2:22-cv-02052-MAA Document 94-15 Filed 07/12/23 Page 7 of 7 Page ID #:3060

Helene P. Saller
Paralegal

949-988-3640
Helene@jbblaw.com
www.jbblaw.com

9110 Irvine Center Drive, Irvine, CA 92618

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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.

201
Case 2:22-cv-02052-MAA Document 94-16 Filed 07/12/23 Page 1 of 8 Page ID #:3061

EXHIBIT 15
Case 2:22-cv-02052-MAA Document 94-16 Filed 07/12/23 Page 2 of 8 Page ID #:3062

From: Kiker, Dennis
To: Adam Tate; Bentz, Tamany; Helene P. Saller; Lueddeke, Jason; Grush, Benjamin; Brown, Michael P.
Cc: Catherine Close; Adam J Schwartz; Helene P. Saller; Bekah Chamberlin
Subject: RE: Breaking Code Silence v. McNamara, et al.
Date: Tuesday, June 20, 2023 12:28:26 PM

Adam,

We have enquired about Slack support and are informed that there is an associated cost. For this
reason, we are working initially with our pro bono forensic services provider on a suitable solution.

Dennis

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Tuesday, June 20, 2023 1:08 PM
To: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

⚠EXTERNAL MESSAGE
Dennis,

This the third time I am asking this question and I would appreciate a direct answer:  Has BCS or
anyone on its behalf contacted Slack to apply to export data from private channels and direct
messages?  If not, why not?

Thank you,

Adam

202
Case 2:22-cv-02052-MAA Document 94-16 Filed 07/12/23 Page 3 of 8 Page ID #:3063

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Tuesday, June 20, 2023 9:27 AM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P.
Saller <helene@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown, Michael P.
<Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

It is our understanding that Consilio’s capabilities are necessarily limited by the Slack license
permissions.  This is, in fact, why we are working with a forensics expert to determine the best
collection methodology under the circumstances.  The process is not complete, but we will provide
you with a production date once we have it from the forensics expert.

Thanks, Dennis

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Monday, June 19, 2023 3:10 PM
To: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Dennis,

While I appreciate your email, Consilio’s page seems to suggest that it can ingest the private

203
Case 2:22-cv-02052-MAA Document 94-16 Filed 07/12/23 Page 4 of 8 Page ID #:3064

channels and the DMs.  Can you get me something from them that says that they cannot do so?

Since you are pointing to Slack’s help center, Slack says that regardless of the level, workplace
owners may contact Slack and apply to export data from private channels and direct messages.
https://slack.com/help/articles/204897248-Guide-to-Slack-import-and-export-
tools#h_01EJ96AV9MF56A2RHKES5JCWE7.  Have you done this?

Please also answer the other questions in my email – specifically with regards to slack, has the
screenshotting been completed? If not, when will it be done?

-Adam

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Monday, June 19, 2023 12:03 PM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P.
Saller <helene@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown, Michael P.
<Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

With regard to Slack, we have previously advised that BCS has the Pro plan, through the Slack for
non-profits program. At the time, the discussion was about audit logs, but there are similar
limitations with regard to private channels and DMs, as you can see on Slack’s website:
https://slack.com/help/articles/201658943-Export-your-workspace-data.

Regards,

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Monday, June 19, 2023 2:48 PM

204
Case 2:22-cv-02052-MAA Document 94-16 Filed 07/12/23 Page 5 of 8 Page ID #:3065

To: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bekah Chamberlin
<Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Tamany,

This the first time you have told us that BCS’s slack license does not provide for export of private
channels or DMs.  To be clear, you previously informed us that your license prevented you from
obtaining slack audit logs, but not the messages. I note that Consilio’s information page specifically
states that they can ingest from private channels and DMS with the license that BCS has (please see
attached.)  Can you please forward me something from Consilio supporting your position that BCS
supposedly cannot obtain the private channels or direct messages?

Your email is also unclear about your process of screenshotting the Slack.  Has that already been
done?  If not, will the screenshots be included in your production due on June 30th?  If not, why not?

With respect to the Rule 37 motion. I am going to need an explanation of how BCS could have
supposedly made such a mistake.  You would think that BCS would know who its board of directors is
when it made the discovery response.  It all seems very convenient.  It seems more likely to me that
your client lied to you and then you repeated the lie to the Court.

-Adam

From: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>
Sent: Monday, June 19, 2023 11:07 AM
To: Adam Tate <Adam@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

Thank you for your email.
205
Case 2:22-cv-02052-MAA Document 94-16 Filed 07/12/23 Page 6 of 8 Page ID #:3066

With respect to Slack, it does not appear to us that there is a dispute.  As we have previously
informed you, BCS’s Slack license does not provide for export of private channels or DMs.
Nonetheless, BCS was working with our vendor, Consilio, to screen shot communications from
private channels and DMs relating to the allegations in the complaint and the resulting
investigation.

With respect to the Rule 37 motion, the interrogatory response you rely on to identify the Board
members is incorrect.  My understanding is that it is a mistake on Messner’s part and that it has
been fixed.  To be clear, neither Ms. Saberi, Ms. Boyd-King nor Ms. Hassanpour were ever on the
Board.  Also, since they were not on the Board we are withdrawing our confidentiality designation
on the documents you included as Exhibit 12 and those do not need to be filed under seal.  We
cannot tell from your list whether that streamlines your motion, but we expect it at least resolves
the issue of who is or was on the Board of BCS.

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: Friday, June 16, 2023 2:58 PM
To: Helene P. Saller <helene@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Counsel,

You have undoubtedly seen our motions by now as well as the Court’s order requiring us to a Local
Rule 37-2 joint stipulation.  We are in the process of converting the motions into our half of the joint
stipulation, but I wanted to see if we can narrow the issues even further.  Below are the issues we
have identified, please let us know if we can narrow the issues, you agree with the issues, or you
wish to propose different or additional issues.

For the motion regarding Slack:

206
Case 2:22-cv-02052-MAA Document 94-16 Filed 07/12/23 Page 7 of 8 Page ID #:3067

1.           Whether BCS Should Be Compelled to Produce Slack Communications Based on its
Agreement to Do So.
2.           Whether BCS Should Be Compelled to Produce Slack Communications Based on the
Court’s Orders.
3.           Whether BCS Has Withheld or Deleted Critical Slack Communications.
4.           Whether the Court Should Impose Monetary Sanctions Against BCS and its Counsel.

For the motion regarding the Custodians and Data Sources:

1.           Whether Plaintiff Violated a Court Order by Failing to Collect From All Custodians
Listed in the EDO.
2.           Whether Plaintiff Violated a Court Order by Failing to Collect From All Data Sources
as Required by the EDO.
3.           Whether Plaintiff’s Violations of the EDO Prejudiced Defendants.
4.           Whether the Court Should Compel the Production of Documents in the Control of
Plaintiff’s Current Officers and Directors.
5.           Whether Plaintiff and its Counsel Should be Sanctioned and the Nature and Scope of
Appropriate Sanctions.

Please respond to this email as soon as possible, by not later than noon on Monday.

Thanks,

Adam

Helene P. Saller
Paralegal

949-988-3640
Helene@jbblaw.com
www.jbblaw.com

9110 Irvine Center Drive, Irvine, CA 92618

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

207
Case 2:22-cv-02052-MAA Document 94-16 Filed 07/12/23 Page 8 of 8 Page ID #:3068

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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, copying, distribution, review or use of the contents of
the information received in error is strictly prohibited.

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
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This electronic transmission, which is sent by a law firm, and any documents attached hereto, (a) are protected by the Electronic
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delete the electronic message and any attachments. Any unauthorized disclosure, copying, distribution, review or use of the contents of
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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
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all copies of the message. To contact us directly, send to postmaster@dlapiper.com. Thank you.

208
Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 1 of 11 Page ID #:3069

EXHIBIT 16
Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 2 of 11 Page ID #:3070

From: Kiker, Dennis
To: Adam Tate; Bentz, Tamany; Helene P. Saller; Lueddeke, Jason; Grush, Benjamin; Brown, Michael P.
Cc: Catherine Close; Adam J Schwartz; Helene P. Saller; Bekah Chamberlin
Subject: RE: Breaking Code Silence v. McNamara, et al.
Date: Thursday, June 22, 2023 2:06:32 PM

Sorry for the delayed response, Adam. To be clear, BCS has not “failed to produce” the Slack
messages.  As we’ve stated several times now, we are in the process of collecting and producing that
information.

Thanks, Dennis

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Tuesday, June 20, 2023 7:46 PM
To: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

⚠EXTERNAL MESSAGE
Other than it may have to pay an “associated cost” to retrieve the messages from Slack, is there any
other reason why BCS has failed to produce the relevant Slack communications from the private
channels and direct messages?

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Tuesday, June 20, 2023 1:13 PM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P.
Saller <helene@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown, Michael P.
<Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.

209
Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 3 of 11 Page ID #:3071

Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

We did not get a quote; we were only advised that those services were available for a fee. Since BCS
as a non-profit entity has limited resources, we chose to explore pro bono services first.

Dennis

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Tuesday, June 20, 2023 3:49 PM
To: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
How much is the associated cost?

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Tuesday, June 20, 2023 12:28 PM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P.
Saller <helene@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown, Michael P.
<Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
210
Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 4 of 11 Page ID #:3072

Adam,

We have enquired about Slack support and are informed that there is an associated cost. For this
reason, we are working initially with our pro bono forensic services provider on a suitable solution.

Dennis

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Tuesday, June 20, 2023 1:08 PM
To: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Dennis,

This the third time I am asking this question and I would appreciate a direct answer:  Has BCS or
anyone on its behalf contacted Slack to apply to export data from private channels and direct
messages?  If not, why not?

Thank you,

Adam

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Tuesday, June 20, 2023 9:27 AM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P.
Saller <helene@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush,

211
Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 5 of 11 Page ID #:3073

Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown, Michael P.
<Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

It is our understanding that Consilio’s capabilities are necessarily limited by the Slack license
permissions.  This is, in fact, why we are working with a forensics expert to determine the best
collection methodology under the circumstances.  The process is not complete, but we will provide
you with a production date once we have it from the forensics expert.

Thanks, Dennis

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Monday, June 19, 2023 3:10 PM
To: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bentz, Tamany
<Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Dennis,

While I appreciate your email, Consilio’s page seems to suggest that it can ingest the private
channels and the DMs.  Can you get me something from them that says that they cannot do so?

Since you are pointing to Slack’s help center, Slack says that regardless of the level, workplace
owners may contact Slack and apply to export data from private channels and direct messages.
https://slack.com/help/articles/204897248-Guide-to-Slack-import-and-export-

212
Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 6 of 11 Page ID #:3074

tools#h_01EJ96AV9MF56A2RHKES5JCWE7.  Have you done this?

Please also answer the other questions in my email – specifically with regards to slack, has the
screenshotting been completed? If not, when will it be done?

-Adam

From: Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Sent: Monday, June 19, 2023 12:03 PM
To: Adam Tate <Adam@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P.
Saller <helene@jbblaw.com>; Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush,
Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown, Michael P.
<Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Bekah Chamberlin <Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

With regard to Slack, we have previously advised that BCS has the Pro plan, through the Slack for
non-profits program. At the time, the discussion was about audit logs, but there are similar
limitations with regard to private channels and DMs, as you can see on Slack’s website:
https://slack.com/help/articles/201658943-Export-your-workspace-data.

Regards,

Dennis Russell Kiker
Senior Attorney

T  +1 480 606 5143
F   +1 703 773 5111
M  +1 804 350 8444
O   +1 703 773 4111
dennis.kiker@us.dlapiper.com

DLA Piper LLP (US)
dlapiper.com

From: Adam Tate <Adam@jbblaw.com>
Sent: Monday, June 19, 2023 2:48 PM
To: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>; Helene P. Saller <helene@jbblaw.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>; Bekah Chamberlin

213
Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 7 of 11 Page ID #:3075

<Bekah@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Tamany,

This the first time you have told us that BCS’s slack license does not provide for export of private
channels or DMs.  To be clear, you previously informed us that your license prevented you from
obtaining slack audit logs, but not the messages. I note that Consilio’s information page specifically
states that they can ingest from private channels and DMS with the license that BCS has (please see
attached.)  Can you please forward me something from Consilio supporting your position that BCS
supposedly cannot obtain the private channels or direct messages?

Your email is also unclear about your process of screenshotting the Slack.  Has that already been
done?  If not, will the screenshots be included in your production due on June 30th?  If not, why not?

With respect to the Rule 37 motion. I am going to need an explanation of how BCS could have
supposedly made such a mistake.  You would think that BCS would know who its board of directors is
when it made the discovery response.  It all seems very convenient.  It seems more likely to me that
your client lied to you and then you repeated the lie to the Court.

-Adam

From: Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>
Sent: Monday, June 19, 2023 11:07 AM
To: Adam Tate <Adam@jbblaw.com>; Helene P. Saller <helene@jbblaw.com>; Lueddeke, Jason
<Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin <Benjamin.Grush@us.dlapiper.com>; Brown,
Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>; Kiker, Dennis <Dennis.Kiker@us.dlapiper.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.

Adam,

Thank you for your email.

With respect to Slack, it does not appear to us that there is a dispute.  As we have previously
informed you, BCS’s Slack license does not provide for export of private channels or DMs.
Nonetheless, BCS was working with our vendor, Consilio, to screen shot communications from
private channels and DMs relating to the allegations in the complaint and the resulting
investigation.

214
Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 8 of 11 Page ID #:3076

With respect to the Rule 37 motion, the interrogatory response you rely on to identify the Board
members is incorrect.  My understanding is that it is a mistake on Messner’s part and that it has
been fixed.  To be clear, neither Ms. Saberi, Ms. Boyd-King nor Ms. Hassanpour were ever on the
Board.  Also, since they were not on the Board we are withdrawing our confidentiality designation
on the documents you included as Exhibit 12 and those do not need to be filed under seal.  We
cannot tell from your list whether that streamlines your motion, but we expect it at least resolves
the issue of who is or was on the Board of BCS.

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: Friday, June 16, 2023 2:58 PM
To: Helene P. Saller <helene@jbblaw.com>; Bentz, Tamany <Tamany.Bentz@us.dlapiper.com>;
Lueddeke, Jason <Jason.Lueddeke@us.dlapiper.com>; Grush, Benjamin
<Benjamin.Grush@us.dlapiper.com>; Brown, Michael P. <Michael.P.Brown@us.dlapiper.com>
Cc: Catherine Close <cac@jbblaw.com>; Adam J Schwartz <adam@ajschwartzlaw.com>; Helene P.
Saller <helene@jbblaw.com>
Subject: RE: Breaking Code Silence v. McNamara, et al.
⚠EXTERNAL MESSAGE
Counsel,

You have undoubtedly seen our motions by now as well as the Court’s order requiring us to a Local
Rule 37-2 joint stipulation.  We are in the process of converting the motions into our half of the joint
stipulation, but I wanted to see if we can narrow the issues even further.  Below are the issues we
have identified, please let us know if we can narrow the issues, you agree with the issues, or you
wish to propose different or additional issues.

For the motion regarding Slack:

1.           Whether BCS Should Be Compelled to Produce Slack Communications Based on its
Agreement to Do So.
2.           Whether BCS Should Be Compelled to Produce Slack Communications Based on the
Court’s Orders.

215
Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 9 of 11 Page ID #:3077

3.           Whether BCS Has Withheld or Deleted Critical Slack Communications.
4.           Whether the Court Should Impose Monetary Sanctions Against BCS and its Counsel.

For the motion regarding the Custodians and Data Sources:

1.           Whether Plaintiff Violated a Court Order by Failing to Collect From All Custodians
Listed in the EDO.
2.           Whether Plaintiff Violated a Court Order by Failing to Collect From All Data Sources
as Required by the EDO.
3.           Whether Plaintiff’s Violations of the EDO Prejudiced Defendants.
4.           Whether the Court Should Compel the Production of Documents in the Control of
Plaintiff’s Current Officers and Directors.
5.           Whether Plaintiff and its Counsel Should be Sanctioned and the Nature and Scope of
Appropriate Sanctions.

Please respond to this email as soon as possible, by not later than noon on Monday.

Thanks,

Adam

Helene P. Saller
Paralegal

949-988-3640
Helene@jbblaw.com
www.jbblaw.com

9110 Irvine Center Drive, Irvine, CA 92618

This electronic transmission, which is sent by a law firm, and any documents attached hereto, (a) are protected by the Electronic
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Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 10 of 11 Page ID #:3078

This electronic transmission, which is sent by a law firm, and any documents attached hereto, (a) are protected by the Electronic
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217
Case 2:22-cv-02052-MAA Document 94-17 Filed 07/12/23 Page 11 of 11 Page ID #:3079

unauthorized review, use, disclosure, dissemination, distribution, or copying of this communication, or any of its
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all copies of the message. To contact us directly, send to postmaster@dlapiper.com. Thank you.

218
Case 2:22-cv-02052-MAA Document 94-18 Filed 07/12/23 Page 1 of 12 Page ID #:3080

EXHIBIT 17
Case 2:22-cv-02052-MAA Document 94-18 Filed 07/12/23 Page 2 of 12 Page ID #:3081

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

219
Case 2:22-cv-02052-MAA Document 94-18 Filed 07/12/23 Page 3 of 12 Page ID #:3082

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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2:10 1 THE WITNESS: I shared all of my findings with

2 Bobby, Jenny, Vanessa and a few of our other team members at

3 that time who were involved in just being aware of this.

2:10 4 But other than that, no.

2:10 5 Q. (BY MR. TATE) Okay. So, when you said you

6 shared it with them, what was the method of communication?

2:10 7 A. It was Slack and I believe we had a Zoom

8 meeting about it too.

2:10 9 Q. So, do you recall if there was Slack

10 communication in which you discussed the de-indexing;

11 correct?

2:11 12 A. I believe so, yes.

2:11 13 Q. Would you still have access to that Slack?

2:11 14 A. I do not. No. When I resigned I took myself

15 out of Slack. I no longer have access.

2:11 16 Q. Do you recall when it was that this Slack

17 communication occurred?

2:11 18 A. Um, I believe it was probably the day after

19 the de-indexing occurred. So, again, probably around March

20 11th, if I’m not mistaken.

2:11 21 Q. Okay. And then did you prepare a summary or

22 was it just a communication that you had?

2:12 23 A. Um, I don’t remember preparing a summary

24 because I think I sent over — they asked me to send over

25 all of the screen shots I took in Slack. I don’t remember

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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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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 18
Case 2:22-cv-02052-MAA Document 94-19 Filed 07/12/23 Page 2 of 12 Page ID #:3093

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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09:23:30 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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12:14:41 1 MR. SONG: Objection; lacks foundation, calls
2 for speculation, argumentative.
3 THE WITNESS: No, what I saw indicates he had
4 access before I did.
12:14:48 5 BY MR. TATE:
6 Q Right. You got access on the 11th and
7 what we’ve seen today is that Jeremy Whiteley also
8 got access on the 11th; isn’t that correct?
9 MR. SONG: Objection; lacks foundation, calls
12:14:58 10 for speculation, argumentative, also calls for a
11 narrative answer.
12 BY MR. TATE:
13 Q Go ahead.
14 A Broadly, yes. But per my earlier
12:15:09 15 explanation about extrapolating information, I think
16 it’s probably advisable to review the logs from
17 Webmaster Central and the log that you keep pointing
18 to, the one that shows the access delegation on the
19 11th. I think that probably warrants a little
12:15:26 20 further review.
21 But the short answer to your question is
22 yes, I believe what you said is correct.
23 Q Did you not do that further review at the
24 time in March 2022?
12:15:47 25 MR. SONG: Objection; vague, unintelligible,

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12:15:49 1 ambiguous question.
2 BY MR. TATE:
3 Q I’ll ask you again.
4 You just testified that — that whether or
12:15:57 5 not my client had access on March 9th warrants a
6 further review.
7 Did it not warrant a further review in
8 March 2022?
9 MR. SONG: Objection; misstates testimony.
12:16:11 10 BY MR. TATE:
11 Q Go ahead.
12 A There’s no reason that I would have done
13 that review then. So when I — when I got into the
14 thick of it and when we found out everything that
12:16:22 15 was happening, when we got to the root cause being
16 Google Search Console, I see that a handful of
17 people have access. Two of them are known hostile
18 to Breaking Code Silence because of their past.
19 So it’s a necessary conclusion at that
12:16:39 20 point for me to make that it is the hostile
21 individuals who are most likely to have placed the
22 deindex request versus those people who called me in
23 a panic earnestly asking me to do everything I can
24 to help them remove it.
12:16:57 25 Q Did you discuss the possibility that

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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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15:56:07 1 the domain until December.
2 Q Why wait — why did you wait so long?
3 A I believe we discussed it internally and
4 the conclusion was reached at the time that we
15:56:22 5 weren’t going to accept a partial transfer of the
6 stolen property.
7 And so any further action on it was held
8 pending future discussion or guidance from counsel.
9 MR. SONG: Yes, thank you. I was going to say
15:56:49 10 argumentative.
11 BY MR. TATE:
12 Q I think I asked this question earlier
13 about Signal.
14 You indicated that, you know, there’s more
15:57:08 15 than 50, maybe over 100 Signal conversations
16 relating to the allegations against my clients.
17 Can you ballpark for me the number of
18 Slack communications there were between BCS members
19 relating to allegations against my clients?
15:57:27 20 A I can ballpark it for you. Less than a
21 few hundred. Less than 300. So we were heavily
22 using Slack and Zoom during the response. And there
23 was a lot of information that went back and forth
24 there, but after the response, I realized the domain
15:57:43 25 name was compromised and that’s when I discouraged

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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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240
Case 2:22-cv-02052-MAA Document 94-26 Filed 07/12/23 Page 1 of 4 Page ID #:3349

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. TO COMPEL SLACK
COMMUNICATIONS AND FOR
19
SANCTIONS
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 CATHERINE A. CLOSE
Case 2:22-cv-02052-MAA Document 94-26 Filed 07/12/23 Page 2 of 4 Page ID #:3350

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 to Compel Slack Communications and for

8 Sanctions. I have personal knowledge of the following facts, and if called upon to

9 testify, I could and would competently testify thereto.

10 2. Attached hereto as Exhibit 25 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 29 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 27 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 94-26 Filed 07/12/23 Page 3 of 4 Page ID #:3351

1 5. Attached hereto as Exhibit 28 is a true and correct copy of the Court’s
2 Minute Order on Informal Discovery Conference No. 5 issued by the Court on May

3 2, 2023 and filed as ECF 56.

4 6. Attached hereto as Exhibit 26 is a true and correct copy of the
5 Stipulated Order Re: Amended Joint E-Discovery Plan and Protocol for Discovery

6 of Electronically Stored Information issued by the Court on September 13, 2022 and

7 filed as ECF 41.

8 I declare under penalty of perjury under the laws of the United States that the
9 foregoing is true and correct.

10 Executed July 12, 2023, at Irvine, California.
11

12 , /s/ Catherine A. Close
CATHERINE A. CLOSE
13

14

15

16

17

18

19

20

21

22

23

24

25

26
27

28

3
DECLARATION OF CATHERINE A. CLOSE
Case 2:22-cv-02052-MAA Document 94-26 Filed 07/12/23 Page 4 of 4 Page ID #:3352

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 12th 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

16

17

18

19

20

21

22

23

24

25

26
27

28

CERTIFICATE OF SERVICE
Case 2:22-cv-02052-MAA Document 94-27 Filed 07/12/23 Page 1 of 20 Page ID #:3353

EXHIBIT 25
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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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EXHIBIT 26
Case 2:22-cv-02052-MAA Document 41 Filed 09/13/22 Page 1 of 22 Page ID #:273

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
23
Case 2:22-cv-02052-MAA Document 41 Filed 09/13/22 Page 2 of 22 Page ID #:274

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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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
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PROTOCOL FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION
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25
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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
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PROTOCOL FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION
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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
28
DLA P IPER LLP (US) 5
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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
DLA P IPER LLP (US) 6
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PROTOCOL FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION
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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.
28
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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
28
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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
28
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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
28
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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
16
17
18
19
20
21
22
23
24
25
26
27
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1 EXHIBIT A
2 Production of Data
3 I. Hard Copy Documents:
4 1. All hard copy documents should be scanned and produced as single-
5 page, Group IV, 300 DPI TIFF images with an image load file (.OPT file and/or
6 .LFP file) and a delimited database/metadata load file (.DAT). The
7 database/metadata load file should contain the metadata fields listed below in
8 Section I.A. All documents are to be provided with per document searchable text
9 (.TXT) files that contain full text extraction. In the event a document is scanned into
10 TIFF format, the text file should contain that document’s OCR text. the OCR
11 software should maximize text quality over process speed. Settings such as “auto-
12 skewing” and “auto-rotation” should be turned on during the OCR process.
13 2. All image files and text files shall be named the same as the starting
14 bates number for each document. Each TIFF image shall be endorsed with bates
15 numbers that increment by one for each page.
16 3. The documents should be logically unitized (i.e., distinct documents
17 should not be merged into a single record, and a single document should not be split
18 into multiple records) and should be produced in the order in which they are kept in
19 the usual course of business. The text and image load files should indicate page
20 breaks. The Producing Party is not required to unitize if the documents are not kept
21 that way in the ordinary course of business.
22 4. Documents shall be produced as black and white TIFF images. Upon
23 written request, a party shall produce color images for a reasonable number of
24 selected documents. Documents produced in color shall be produced as single page,
25 300 DPI, color JPG images with the quality setting 75% or higher. Each color
26 document image file shall be named with the unique Bates Number of the first page
27 of the document in question followed by the file extension JPG. This includes, but is
28
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1 not limited to, color on graphs, charts, presentations, edits, or highlights that were
2 made by hand, or electronically, on the original.
3 5. Database/Metadata Fields for Hard Copy Documents:
4 1. Production Number Begin
5 2. Production Number End
6 3. Production Attachment Range Number Begin
7 4. Production Attachment Range Number End
8 5. Confidentiality Designation
9 6. Production Doc Page Count
10 7. All Custodians
11 8. Source
12 9. Volume
13 II. Electronically Stored Information:
14 6. With the exception of Section VII, below, all Electronically Stored
15 Information (“ESI”) that is deemed responsive and not privileged is to be produced
16 in 300 DPI Group IV black and white Tagged Image File Format (.TIFF or .TIF)
17 files. The TIFF files shall be produced in single-page format along with image load
18 files (.OPT file and/or .LFP file). Document images should reveal or show all
19 hidden information. Upon written request, a party shall produce color images for a
20 reasonable number of selected documents. Documents produced in color shall be
21 produced as single page, 300 DPI, color JPG images. with the quality setting 75% or
22 higher. Each color document image file shall be named with the unique Bates
23 Number of the first page of the document in question followed by the file extension
24 JPG.
25 7. Any document that cannot be converted to TIFF format shall be
26 represented in the production with a placeholder TIFF image that bears the legend
27 “This document cannot be converted to TIFF,” along with its corresponding
28 metadata in the Concordance DAT file.
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1 8. During the process of converting ESI from the electronic format of the
2 application in which the ESI is normally created, viewed and/or modified to TIFF,
3 metadata values should be extracted and produced in the database/metadata load
4 file.
5 9. The metadata values that are to be extracted and produced in the
6 database load files (.DAT file using concordance standard delimiters) are those
7 maintained in the usual course of business and are identified in Section XII.
8 10. No Party will have the obligation to manually generate information to
9 populate metadata fields if such fields cannot be reasonably extracted or generated
10 from the document using an automated process, except that parties will generate
11 Confidentiality, Bates fields, and Native/Text Link fields. The Producing Party may
12 redact or remove from production protected or privileged metadata.
13 11. To the extent reasonably available, the “Custodian” fields with respect
14 to ESI gathered from an individual’s hard drive will provide metadata sufficient to
15 identify the individual custodian from whose hard drive such ESI has been gathered.
16 III. Families of Documents:
17 12. For any documents that contain an attachment (for example, email), to
18 the extent available, the fields listed in Section XII should be produced as part of the
19 metadata load file for both the parent and child documents.
20 13. To the extent a document is part of a “document family” with a
21 combination of responsive, privileged, and/or non-responsive documents: (i) the
22 privileged documents will be represented in the production with a placeholder TIFF
23 image that bears the legend “Document Withheld as Privileged”; and (ii) the non-
24 responsive documents will be represented in the production with a placeholder TIFF
25 image that bears the legend “Non-Responsive Document.” The TIFF image(s) shall
26 be endorsed with a sequential Bates number.
27
28
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1 V. Handwritten Notes or Other Alterations:
2 14. If there are any handwritten notes, or any other markings, on a
3 document, it shall not be considered a duplicate. Any document that contains an
4 alteration, marking on, or addition to the original document shall be treated as a
5 distinct version, and shall be produced as such. These alterations include, but are not
6 limited to, handwritten notes, electronic notes/tabs, edits, highlighting or redlining.
7 If such markings/alterations are made in color, the documents shall be produced in
8 color upon reasonable request.
9 15. If the producing party becomes aware of any file that was incorrectly
10 filtered during the de-duplication process, the producing party shall promptly notify
11 the other party and produce the incorrectly filtered file.
12 VI. Last-in-time Production:
13 16. A party may produce a single copy of a responsive document insofar as
14 no non-duplicative information is lost as a result. For emails with attachments, the
15 hash value is generated based on the parent/child document grouping. A party may
16 also de-duplicate email threads as follows: in an email thread, only the last-in-time
17 portion of the thread that is relevant needs to be produced if all previous emails in
18 the thread are contained within the final message(s). Where an email is not last-in-
19 time and contains an attachment, that email and its attachment shall be produced if
20 relevant and non-privileged.
21 VII. Production of Excel, Other Spreadsheets and PowerPoints:
22 17. Excel spreadsheets, CSV files, and other spreadsheet type files shall be
23 produced in native format with a TIFF placeholder bearing the legend “Produced in
24 Native File Format.” The TIFF image shall be endorsed with a sequential Bates
25 number and the produced native file named to match this Bates number. The
26 metadata load file shall contain a link to the produced native file via data values
27 called “Native Link.” The Native Link values should contain the full directory path
28 and file name of the native file as contained in the produced media.
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1 18. To the extent MS-Excel spreadsheets contain information subject to a
2 claim of privilege they should be redacted natively, and the redacted native copy
3 should be produced in accordance with Paragraph 14.
4 19. PowerPoint files shall be imaged with speaker notes showing in the
5 image, as well as any hidden content displayed in the image. The Producing Party
6 may produce PowerPoint files in native format with a TIFF placeholder bearing the
7 legend “Produced in Native File Format.” The TIFF image shall be endorsed with a
8 sequential Bates number and the produced native file named to match this Bates
9 number. The metadata load file shall contain a link to the produced native file via
10 data values called “Native Link.” The Native Link values should contain the full
11 directory path and file name of the native file as contained in the produced media.
12 VIII. Production of Database or Structured Data:
13 20. If a database or other source of structured data contains responsive
14 information, the parties will produce reports or exports from those data sources in a
15 reasonable usable electronic file to the extent practicable. Otherwise, the parties
16 may meet and confer regarding such format of production.
17 IX. Production of Audio and Video Files:
18 21. If audio and/or video recordings are responsive, the parties should meet
19 and confer to determine a mutually agreeable format for producing the audio and/or
20 video recording. Before meeting and conferring, the producing party will have
21 information sufficient to identify responsive audio and/or video recordings.
22 X. Bates Numbering:
23 22. Bates number and any confidentiality designation should be
24 electronically branded on each produced TIFF image of ESI but should not be
25 included in the extracted text of ESI, unless the document is a scanned copy of a
26 hard copy document, or the document has been redacted. For documents produced
27 in native format, the original file name and the Bates number for each native file
28
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1 shall be produced, and the native files shall be named the same as the starting Bates
2 number for that document or file.
3 XI. Redactions:
4 23. In accordance with the Stipulated Protective Order entered for this
5 matter, each redaction on a document shall be completed using white or colored
6 boxes that contain the word “Redacted” at the point of each redaction on each page
7 of the redacted document. The redacted image file should be produced along with
8 OCR text of the redacted file. If metadata displayed in the imaged document was
9 redacted, then that metadata should be excluded from the load file. The reason for
10 redaction (privilege, privacy, non-responsive business information etc.) shall be
11 provided on the face of the redaction or in accompanying metadata.
12 XII. Metadata Fields:
13 Field Name Description Example / Format
14 PRODBEG The Document ID ABC0000001
number of first page of
15 the document.
16 PRODEND The Document ID ABC0000003
number of the last page
17 of a document.
18 PROD BEGATTACH The Document ID ABC0000001
number of the first page
19 of the parent document.
20 PROD The Document ID ABC0000008
ENDATTACH number of the last page
21 of the last attachment.
22 CONFIDENTIALITY The level of Confidential, Highly
DESIGNATION confidentiality assigned Confidential
23 to the document by
24 Counsel
PGCOUNT The number of pages in a Numeric
25 document. (image
26 records)
27
28
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1 Field Name Description Example / Format
2 ALL CUSTODIANS All of the custodians / Smith, Joe; Doe, Jane
sources of a document
3 from which the
4 document originated.
EMAIL SUBJECT The subject line of the e-
5 mail.
6 EMAIL AUTHOR / The display name and e- Joe Smith
FROM mail of the author of an <jsmith@email.com>
7 e-mail.
8 EMAIL The display name and e- Joe Smith
RECIPIENTS / TO mail of the recipient(s) <jsmith@email.com>;
9 of an e-mail. tjones@email.com
10 EMAIL CC The display name and e- Joe Smith
mail of the copy(ies) of <jsmith@email.com>;
11 an e-mail. tjones@email.com
12 EMAIL BCC The display name and e- Joe Smith
mail of the blind <jsmith@email.com>;
13 copy(ies) of an e-mail. tjones@email.com
14 EMAIL The number of Numeric
ATTACHMENT attachments to a parent.
15 COUNT
16 EMAIL The original file name of Attach1.doc
ATTACHMENT attached record.
17 NAME
18 RECEIVEDDATE The date the document MM/DD/YYYY
was received.
19 RECEIVED TIME The time the document HH:MM
20 was received.
SENT DATE The date the document MM/DD/YYYY
21
was sent.
22 SENT TIME The time the document HH:MM
was sent.
23
TIME OFFSET The time zone that the PST, CST, EST, etc.
24 VALUE / data is set to when
TIMEZONE processed.
25
PROCESSED
26 FILE NAME The file name of a native Document Name.xls
document.
27
28
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1 Field Name Description Example / Format
2 FILE AUTHOR The author of a jsmith
document from extracted
3 metadata.
4 DOC TITLE The extracted title of the Table of Contents
document.
5 FILE MANAGER / Native file application. Microsoft Excel, Word, etc.
6 APPLICATION
DESCRIPTION
7 FILE EXTENSION The file extension of a XLS
8 document.
FILE CREATE The date the document MM/DD/YYYY
9 DATE was created.
10 FILE CREATE TIME The time the document HH:MM
was created.
11 FILE LAST The date the document MM/DD/YYYY
12 MODIFICATION was last modified.
DATE
13
14 FILE LAST SAVED The last individual to jsmith
BY save the file.
15
16 DATE Date of calendar MM/DD/YYYY
APPOINTMENT appointment entry.
17 START
18 TIME Start time of calendar HH:MM
APPOINTMENT appointment entry.
19
START
20 DATE End date of calendar MM/DD/YYYY
APPOINTMENT appointment entry
21
END
22 TIME End time of calendar HH:MM
APPOINTMENT appointment entry.
23
END
24 FILESIZE The file size of a Numeric
document (including
25
embedded attachments).
26
27
28
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1 Field Name Description Example / Format
2 FILE PATH / Location of the original Joe Smith/E-mail/Inbox Joe
ORIGINAL PATH document / location in Smith/E-mail/Deleted Items
3 the ordinary course of
4 business. This field
should be populated for
5 email and e-files.
6 MD5HASH The MD5 Hash value or
de-duplication key
7 assigned to a document.
8 NATIVELINK The full path to a native D:\NATIVES\ABC000001.xls
copy of a document.
9 TEXTLINK The full path to a text D:\TEXT\ABC000001.txt
10 copy of a document.

11
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13
14
15
16
17
18
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21
22
23
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25
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Case 2:22-cv-02052-MAA Document 94-29 Filed 07/12/23 Page 1 of 5 Page ID #:3396

EXHIBIT 27
Case
Case
2:22-cv-02052-MAA
2:22-cv-02052-MAADocument
Document
94-29
52 Filed
Filed04/19/23
07/12/23 Page
Page12ofof45 Page
PageID
ID#:859
#:3397

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: April 19, 2023
Title Breaking Code Silence v. Katherine McNamara, et al.

Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge

Narissa Estrada XtR 4/18/2023
Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiff: Attorneys Present for Defendants:
Tamany Vinson Bentz Adam J. Schwartz
Jason Lueddeke Catherine Ann Close
Dennis Kiker M. Adam Tate

Proceedings (Telephonic): Informal Discovery Conferences
(ECF No. 50, 51)

Case is called. Counsel make their appearances.
a\
Before the Court on April 18, 2023 were the parties’ second and third informal discovery
conferences, which the Court names respectively “IDC 2” and “IDC 3.” Through IDC 2, Defendants
Katherine McNamara and Jeremy Whiteley (collectively “Defendants”) seek an order compelling
the depositions of Vanessa Hughes in her personal capacity and Jennifer Magill in both her personal
capacity and as representative of Plaintiff Breaking Code Silence (“Plaintiff”). Through IDC 3,
Defendants seek an order compelling Plaintiff to (1) collect and produce documents responsive to
Defendants’ discovery requests and agreed-upon search terms, including from certain custodians and
from certain sources, as detailed in the parties’ Stipulated Order re: Amended Joint E-Discovery
Plan and Protocol for Discovery of Electronically Stored Information (“EDO,” ECF No. 41) by a
date certain; (2) produce social media logs by a date certain; (3) produce duplicates of documents as
required by the EDO by a date certain; and (4) de-designate documents improperly designated as
“Confidential” by a date certain.

The Court confers with the parties and, for the reasons stated on the record, ORDERS as
follows:

1. The deposition of Jennifer Magill shall proceed on May 1, 2023, per agreement of the
parties. The Court notes that this date may change depending on the outcome of the

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#:3398

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: April 19, 2023
Title Breaking Code Silence v. Katherine McNamara, et al.

further informal discovery conference regarding a discovery plan and, more specifically,
Plaintiff’s production of documents.

2. The parties have been unable to resolve their dispute regarding Plaintiff’s failure to
produce certain social media logs and Defendants contend it is possible Plaintiff has
spoliated that evidence. On this basis, the Court FINDS that the parties have satisfied
their pre-motion meet-and-confer obligations under Federal Rule of Civil Procedure
(“Rule”) 37, Central District of California Local Civil Rule (“Local Rule”) 37, and Judge
Audero’s discovery dispute resolution process (see Fed. R. Civ. P. 37; C.D. Cal. L.R. 37;
http://www.cacd.uscourts.gov/honorable-maria-audero), and Defendants may file a
motion for sanctions pursuant to Rule 45(e), without further intervention of the Court,
should they find it appropriate to do so under the attendant circumstances.

3. The Court will hold a further discovery conference on Monday, April 24, 2023 at 3:00
p.m. (a separate order will issue convening the conference) for the purpose of creating a
discovery plan that will address the discovery disputes not resolved at these IDC 2 and
IDC 3. Toward that goal, Plaintiff shall, by no later than 10:00 a.m. on Monday, April
24, 2023, forward the following to the Court via email to
MAA_Chambers@cacd.uscourts.gov, cc’ing counsel for Defendants:

a. an under-oath declaration of Vanessa Hughes’s doctor supplementing his earlier
declarations, explaining the basis for his opinion that Ms. Hughes cannot sit for
deposition, which declaration shall, at a minimum, answer the following questions
to the greatest extent possible without revealing private medical information:
(i) what limitations Ms. Hughes’s condition (the declaration shall not provide a
diagnosis) imposes on her ability to sit for deposition; (ii) whether there are any
accommodations that could be made to allow Ms. Hughes’s deposition to go
forward, including, for example but not limited to, being deposed for short
periods at a time, as short as 15 or 30 minutes, and/or under the care of a
physician or nurse, and/or via Zoom from the ship on which she recently
embarked on a three-month cruise; (iii) if the doctor contends that Ms. Hughes’s
performance of her volunteer work for Plaintiff while on the cruise, including
answering questions about this litigation via email as stated by Plaintiff’s counsel,
is less stressful for Ms. Hughes than sitting for deposition under doctor-supervised

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#:3399

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: April 19, 2023
Title Breaking Code Silence v. Katherine McNamara, et al.

and/or -controlled conditions, the factual basis for this contention; whether the
doctor anticipates that Ms. Hughes will be able to sit for deposition upon the
conclusion of her cruise, and if no, why not; and the basis for these opinions,
including but not limited to whether the opinions are based upon an examination
of Ms. Hughes after her last deposition;

b. a statement from Plaintiff’s counsel regarding the date on which Ms. Hughes’s
cruise will end, based on information obtained from Ms. Hughes;

c. a chart that lists on one axis the custodians identified in Section 4.3 of the EDO
and on the other axis the sources of documents/data identified in Section 4.4 of
the EDO and, in each corresponding cell, states:

i. whether that particular data source for that particular custodian has been
searched using the agreed-upon search terms;
ii. if no, why not and when Plaintiff anticipates completing the search for that
custodian;
iii. if so, the number of documents generated from that search, and, as to those
documents, how many remain to be reviewed for responsiveness and
privilege, and the amount of time Plaintiff anticipates it will need to
review those documents and prepare the production;

d. a statement of Plaintiff’s position regarding the discovery plan proposed by the
Court that contemplates the scheduling of depositions for each custodian premised
upon a precedent production of all responsive, non-privileged documents for each
such custodian. If Plaintiff opposes this approach, Plaintiff shall provide an
alternative proposal that includes proposed dates for the completion of the
outstanding document production and depositions. Either way, in light of the
parties’ agreement to proceed with Plaintiff’s Rule 30(b)(6) deposition (through
representative Magill) on May 1, 2023, the Court notes that this deposition must
be among the earliest scheduled depositions;

e. a proposal for the date or dates of production of the duplicate documents as
required by the EDO;

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PageID
ID#:862
#:3400

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: April 19, 2023
Title Breaking Code Silence v. Katherine McNamara, et al.

f. a proposal for the date or dates by which Plaintiff will revise its designation of
documents from “Confidential” to not confidential, which date or dates must
correlate with the dates for the depositions of those custodians whose documents
will be de-designated, in whole or in part, from “Confidential” to not confidential.

It is so ordered.

Time in Court: 2:00

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EXHIBIT 28
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2:22-cv-02052-MAADocument
Document
94-30
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Page12ofof56 Page
PageID
ID#:868
#:3402

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: May 2, 2023
Title Breaking Code Silence v. Katherine McNamara et al

Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge

Narissa Estrada XTR 5/1/23
Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiff: Attorneys Present for Defendant:
Tamany Vinson Bentz Adam J. Schwartz
Jason Lueddeke Catherine Ann Close
Kinnis Kiker M. Adam Tate

Proceedings (Telephonic): Informal Discovery Conference
(ECF No. 55)

Case is called. Counsel make their appearances.

Before the Court on May 1, 2023 is the parties’ fifth informal discovery conference in this
matter, which the Court names “IDC 5.” Through IDC 5, the parties and the Court seek to create a
discovery plan related to the discovery that remains to be completed before the discovery cut-off
date, presently set for June 1, 2023.

The Court confers with counsel. The parties are unable to resolve their discovery disputes
and Plaintiff Breaking Code Silence (“Plaintiff”) requests additional time to develop its positions in
light of new issues raised by the parties and the Court. Based thereon, the Court ORDERS as
follows:

1. Plaintiff shall produce to Defendants Katherine McNamara and Jeremy Whiteley
(“Defendants”) the relevant, non-privileged documents of the subset of 919 documents
that remain from the original 1,148 document collection of Slack documents, by no later
than May 5, 2023.

Should Defendants, upon review of the production, contend, on the basis of reasonable,
non-speculative belief, that Plaintiff is withholding relevant, non-privileged documents,
they may file a discovery motion pursuant to Federal Rule of Civil Procedure (“Rule”)
37. For this purpose, the Court FINDS that the parties have satisfied their pre-motion

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PageID
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#:3403

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: May 2, 2023
Title Breaking Code Silence v. Katherine McNamara et al

meet-and-confer obligations under Rule 37, Central District of California Local Civil
Rule (“Local Rule”) 37, and Judge Audero’s discovery dispute resolution process. (See
Fed. R. Civ. P. 37; C.D. Cal. L.R. 37; http://www.cacd.uscourts.gov/honorable-maria-
audero.)

2. Plaintiff’s production of Slack documents shall be accompanied by a privilege log listing
all of the documents withheld from this production on the basis of privilege. Although
not discussed at IDC 5, but in an effort to assist the parties and avoid further delay, the
Court ORDERS that the privilege log must include the following information on a
document-by-document basis for documents withheld on the basis of attorney-client
privilege:
a. the attorney(s) and client(s) involved;
b. the nature of the document;
c. the source of the document or the person who created the document;
d. the sender(s) of the document (if appropriate);
e. all recipients of the document (if appropriate);
f. all persons known to have been furnished the document or otherwise informed
of its contents (if appropriate);
g. the date the document was generated, prepared, or dated; and
h. all privileges upon which the document is being withheld.
See In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v.
Milonas, 889 F.2d 885, 888 n.3 (9th Cir. 1989)); see also Trejo v. Macy’s, Inc., No. 5:13-
cv-02064-LHK (PSG), 2014 U.S. Dist. LEXIS 35464, *5 (N.D. Cal. Mar. 17, 2014)
(listing similar factors).

For documents withheld on the basis of the attorney work-product doctrine, the claim of
privilege must, on a document-by-document basis, be supported by the above facts to the
extent applicable and an affidavit providing non-conclusory facts necessary to establish
the following:
a. that the document was prepared in anticipation of litigation or for trial; and
b. that the document was prepared by or for another party or by or for that other
party’s representative.
See Fed. R. Civ. P. 26(b)(3); see also United States v. Nobles, 422 U.S. 225, 238 (1975)
(“work-product doctrine shelters the mental processes of the attorney, providing a

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#:3404

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: May 2, 2023
Title Breaking Code Silence v. Katherine McNamara et al

privileged area within which he can analyze and prepare his client’s case.”); United States
v. Torf (In re Grand Jury Subpoena), 357 F.3d 900, 906 (9th Cir. 2004) (“work product
doctrine . . . protects from discovery documents and tangible things prepared by a party
or his representative in anticipation of litigation.”); United States v. Western Titanium,
Inc., 348 Fed. Appx. 224, 225 (9th Cir. 2009) (citing Conoco, Inc. v. United States DOJ,
687 F.2d 724, 730 (3rd Cir. 1982)).

Should Defendants, upon review of the privilege log, contend that Plaintiff’s claims of
privilege are improper, the parties must meet and confer as required by Rule 37 and Local
Rule 37, and participate in an informal discovery conference with Judge Audero, before
filing a discovery motion regarding Plaintiff’s privilege assertions.

3. The Court will hold another informal discovery conference on May 3, 2023 at 3:00 p.m.
(a separate order will issue convening the conference) for the purposes of (a) setting the
deposition of Dr. Hughes and determining whether limitations to the timing and structure
of her deposition are appropriate; (b) hearing from Plaintiff regarding whether each of the
custodians listed in Section 4.3 of the Stipulated Order re: Amended Joint E-Discovery
Plan and Protocol for Discovery of Electronically Stored Information (“EDO,” ECF No.
41) voluntarily will provide the documents requested by Defendants pursuant to the
EDO; and (c) hearing from Plaintiff on any change to its current position regarding the
production of certain social media logs from its custodians. Toward this goal, Plaintiff
shall, by no later than noon on May 3, 2023 forward the following to the Court via
email to MAA_Chambers@cacd.uscourts.gov, cc’ing counsel for Defendants:

a. the under-oath declaration from Dr. Hughes’s doctor, as ORDERED by the Court
on April 19, 2023 at paragraph 3(a) (ECF No. 52) and on April 26, 2023 at
paragraph 2(d) (ECF No. 54), or, if Plaintiff is unable to obtain the declaration
prior to IDC 6, a statement from Plaintiff’s counsel advising whether this
circumstance derives from the doctor’s unwillingness to provide a declaration at
all, or additional time is needed to obtain the declaration. If Plaintiff requires
additional time to obtain the declaration from Dr. Hughes’s doctor, then Plaintiff
shall notify the Court and Defendants of the date by which Plaintiff will provide
the declaration, and the Court, in its discretion, may continue IDC 6 accordingly
so that the Court and the parties may review the declaration in advance of IDC 6;

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#:3405

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: May 2, 2023
Title Breaking Code Silence v. Katherine McNamara et al

b. 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; and

c. Plaintiff’s proposal of a more reasonable timeline—earlier than Plaintiff’s
proposed July 28, 2023 deadline—for production of the 47,352 documents
identified by Plaintiff as collected but not yet produced.

It is so ordered.

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#:3406

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: May 2, 2023
Title Breaking Code Silence v. Katherine McNamara et al

Time in Court: 2:10

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EXHIBIT 29
Case
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2:22-cv-02052-MAADocument
Document
94-31
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Page12ofof34 Page
PageID
ID#:873
#:3408

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: May 4, 2023
Title Breaking Code Silence v. Katherine McNamara et al

Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge

Narissa Estrada XTR 5/3/23
Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiff: Attorneys Present for Defendant:
Tamany Vinson Bentz M. Adam Tate
Dennis Kiker

Proceedings (Telephonic): Informal Discovery Conference
(ECF No. 57)

Case is called. Counsel make their appearances.

Before the Court on May 3, 2023 is the parties’ sixth informal discovery conference in this
matter, which the Court names “IDC 6.” Through IDC 6, the parties and the Court seek to create a
discovery plan related to the discovery that remains to be completed before the discovery cut-off
date, presently set for June 1, 2023, and to resolve newly-identified issues related to the pending
discovery and related motions.

The Court confers with counsel. The parties are unable to resolve their discovery disputes.
Accordingly, the Court ORDERS as follows:

1. With respect to the dispute regarding the efforts of Defendants Katherine McNamara and
Jeremy Whiteley (“Defendants”) to compel the deposition of Dr. Hughes, the Court
FINDS that the parties have exhausted their pre-motion meet-and-confer obligations
under Federal Rule of Civil Procedure (“Rule”) 37, Central District of California Local
Civil Rule (“Local Rule”) 37, and Judge Audero’s discovery dispute resolution process.
(See Fed. R. Civ. P. 37; C.D. Cal. L.R. 37; http://www.cacd.uscourts.gov/honorable-
maria-audero.) While the Court encourages the parties to continue meeting and
conferring in order to resolve this dispute without motion practice, it ORDERS that
either party now may file a discovery motion on this issue.

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PageID
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#:3409

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: May 4, 2023
Title Breaking Code Silence v. Katherine McNamara et al

2. With respect to the dispute regarding Defendants’ efforts to compel the production by
Plaintiff Breaking Code Silence (“Plaintiff”) of documents from its custodians as listed in
Section 4.3 of the Stipulated Order re: Amended Joint E-Discovery Plan and Protocol for
Discovery of Electronically Stored Information (“EDO,” ECF No. 41), the Court FINDS
that the parties have exhausted their pre-motion meet-and-confer obligations under Rule
37, Local Rule 37, and Judge Audero’s discovery dispute resolution process. (See Fed.
R. Civ. P. 37; C.D. Cal. L.R. 37; http://www.cacd.uscourts.gov/honorable-maria-audero.)
While the Court encourages the parties to continue meeting and conferring to resolve this
issue without motion practice, it ORDERS that either party now may file a discovery
motion on this issue.

3. With respect to the dispute regarding Defendants’ efforts to compel the production by
Plaintiff of the 47,352 documents Plaintiff identified as collected but not yet produced,
Plaintiff is ORDERED to produce the relevant, non-privileged documents from that set
of documents by no later than June 30, 2023.

4. With respect to Defendants’ concern of anticipated disputes regarding Plaintiff’s possible
improper assertion of the attorney work-product doctrine as a basis to withhold
documents from Dr. Hughes’s personal email account, the parties have agreed to continue
meeting and conferring on this issue. As this issue was raised for the first time during
this IDC 6, and on the basis of the parties’ discussion, the Court is unable to find at this
time that the parties have satisfied their pre-motion meet-and-confer obligations. As
such, prior to filing a discovery motion regarding this issue, should it arise, the parties
must meet and confer as required by Rule 37 and Local Rule 37, and participate in an
informal discovery conference with Judge Audero.

5. In light of the discovery delays experienced so far in this case, the Court sua sponte
extends the current case schedule. With the exception of the deadline to complete
mediation, the dates set out in the Schedule of Pretrial and Trial Dates Worksheet
contained in the Order re: Jury/Court Trial (ECF No. 31) are EXTENDED for all parties
by ninety days, as detailed below. Because the Court FINDS that this extension of time
is necessitated by the significant discovery delays caused by Plaintiff, it cautions Plaintiff
that the Court will grant a request from Plaintiff for a further extension to the schedule of
pretrial and trial dates only upon a showing of extenuating circumstances beyond its

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#:3410

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-02052-MAA Date: May 4, 2023
Title Breaking Code Silence v. Katherine McNamara et al

control and utmost diligence in moving the case forward. The new schedule of pretrial
and trial dates is as follows:

Date Event
07/02/2023 Expert Disclosure (Initial)
07/30/2023 Deadline to Complete Mediation
08/01/2023 Expert Disclosure (Rebuttal)
08/30/2023 Non-Expert Discovery Cut-Off
09/21/2023 Expert Discovery Cut-Off
10/13/2023 Last Day to Hear Dispositive Motions
12/04/2023 Trial Filings (First Round)
12/11/2023 Trial Filings (Second Round)
01/03/2024 Final Pretrial Conference
01/16/2024 Jury Trial (first day)

It is so ordered.

Time in Court: 2:00

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56
Case 2:22-cv-02052-MAA Document 94-32 Filed 07/12/23 Page 1 of 3 Page ID #:3411

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, JOINT STIPULATION RE:
DEFENDANTS KATHERINE
17
MCNAMARA AND JEREMY
18 vs. WHITELEY’S MOTION TO
COMPEL SLACK
19
COMMUNICATIONS AND FOR
20 SANCTIONS
KATHERINE MCNAMARA, an
21 Individual; JEREMY WHITELEY, an
individual; and DOES 1 through 50,
22 inclusive,

23[Assigned to the Hon. Maria A. Audero] 24 Defendants.
25

26
27

28

DECLARATION OF KATHERINE MCNAMARA
Case 2:22-cv-02052-MAA Document 94-32 Filed 07/12/23 Page 2 of 3 Page ID #:3412

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”) Joint Stipulation Re:

6 Defendants Katherine Mcnamara and Jeremy Whiteley’s Motion To Compel Slack

7 Communications and for Sanctions. I have personal knowledge of the following

8 facts, and if called upon to testify, I could and would competently testify thereto.

9 2. On June 20, 2023, I opened a support ticket with Slack Support using
10 my Slack account. I asked Slack Support if they would charge me to do a one-time

11 export of all Slack private and public messages if it was required to comply with

12 valid legal process, such as an eDiscovery order from the Federal Court or a

13 discovery request propounded by a party.

14 3. Slack Support advised me that, if I wanted to do ongoing exports, I
15 would be required to upgrade my plan. However, Slack Support also indicated that,

16 for a one-time export to respond to valid legal process, there would no charge. A

17 true and correct copy of my Slack Support Ticket (with my personal account

18 information redacted) is attached hereto as Exhibit 30.

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 21, 2023, at San Gabriel, California.
22

23 /s/ Katherine McNamara
KATHERINE MCNAMARA
24

25

26
27

28

2
DECLARATION OF KATHERINE MCNAMARA
Case 2:22-cv-02052-MAA Document 94-32 Filed 07/12/23 Page 3 of 3 Page ID #:3413

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 12th 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

16

17

18

19

20

21

22

23

24

25

26
27

28

CERTIFICATE OF SERVICE
Case 2:22-cv-02052-MAA Document 94-33 Filed 07/12/23 Page 1 of 4 Page ID #:3414

EXHIBIT 30
Case 2:22-cv-02052-MAA Document 94-33 Filed 07/12/23 Page 2 of 4 Page ID #:3415

3
Case 2:22-cv-02052-MAA Document 94-33 Filed 07/12/23 Page 3 of 4 Page ID #:3416

4
Case 2:22-cv-02052-MAA Document 94-33 Filed 07/12/23 Page 4 of 4 Page ID #:3417

5
Case 2:22-cv-02052-MAA Document 94-34 Filed 07/12/23 Page 1 of 2 Page ID #:3418

1 TAMANY J. VINSON BENTZ (SBN 258600)
tamany.bentz@us.dlapiper.com
2 JASON T. LUEDDEKE (SBN 279242)
jason.lueddeke@us.dlapiper.com
3 MICHAEL PATRICK BROWN (SBN 328579)
michael.p.brown@us.dlapiper.com
4 BENJAMIN GRUSH (SBN 335550)
benjamin.grush@us.dlapiper.com
5 DLA PIPER LLP (US)
2000 Avenue of the Stars
6 Suite 400 North Tower
Los Angeles, California 90067-4735
7 Telephone: 310.595.3000
Facsimile: 310.595.3300
8
Attorneys for Plaintiff
9 BREAKING CODE SILENCE
10
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13
14 BREAKING CODE SILENCE, a Case No. 2:22-cv-02052-SB-MAA
California 501(c)(3) nonprofit,
15
DECLARATION OF MICHAEL
16 Plaintiff, PATRICK BROWN IN SUPPORT
OF PLAINTIFF’S OPPOSITION TO
17 v. DEFENDANTS’ MOTION FOR
EVIDENTIARY AND MONETARY
18 KATHERINE MCNAMARA, an SANCTIONS UNDER RULE 37 OF
individual, JEREMY WHITELEY, an THE FEDERAL RULES OF CIVIL
19 individual, and DOES 1 through 50, PROCEDURE
inclusive,
20 Judge: Hon. Maria A. Audero
Complaint Filed: March 28, 2022
21 Defendants. Trial Date: October 17, 2023
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