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Dirk O. Julander, Bar No. 132313
doj@jbblaw.com
Catherine A. Close, Bar No. 198549
cac@jbblaw.com
M. Adam Tate, Bar No. 280017
adam@jbblaw.com
JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
Irvine, California 92618
Telephone: (949) 477-2100
Facsimile: (949) 477-6355
Attorneys for Defendants
MCNAMARA and
JEREMY WHITELEY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) nonprofit,
Plaintiff,
vs.
MCNAMARA, an
Individual; JEREMY WHITELEY, an
individual; and DOES 1 through 50,
inclusive,
Defendants.
Case No. 2:22-cv-002052-SB-MAA
REPLY BRIEF IN SUPPORT OF
JEREMY WHITELEY’S MOTION
FOR SUMMARY JUDGMENT
Date: May 14, 2024
Time: 2:00 p.m.
Crtrm: 880[Assigned to the Hon. Maria A. Audero] Case 2:22-cv-02052-MAA Document 179 Filed 02/29/24 Page 1 of 22 Page ID
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TABLE OF CONTENTS
Page
I. INTRODUCTION…………………………………………………………………………………5
II. LEGAL ARGUMENT …………………………………………………………………………..6
A. BCS Cannot Show that Whiteley Accessed the Google Search
Console and Caused the .Org Domain to be Deindexed ……………………6
1. BCS Misstates the Evidentiary Burden Shifting Standard………..6
2. Tried and True Standard: Whiteley Proved That He Did
Not Cause the .Org Domain to be Deindexed …………………………7
3. No Evidence Standard: BCS Failed to Present any
Evidence that Whiteley Deindexed the .Org Domain ………………9
(a) BCS had the Burden of Presenting Admissible,
Significantly Probative, Evidence. ……………………………….9
(b) BCS Has Not Submitted Any Admissible Evidence
that a Deindexing Request was Submitted by Anyone …….9
(c) BCS’s Circumstantial Evidence is Not Significantly
Probative and is Insufficient ……………………………………..11
B. BCS Failed to Explain, Let Alone Prove, How Whiteley
Allegedly Worked in Concert with McNamara ………………………………13
C. BCS Failed to Show Specific Facts Proving Mens Rea …………………..14
D. BCS Has Not Presented Any Admissible Evidence
Corroborating its Damage Theory ………………………………………………..15
1. BCS Failed to Prove its Volunteer Time is a Cognizable
Loss…………………………………………………………………………………15
2. BCS Failed to Prove That it Lost $5,000 in Donations…………..18
III. CONCLUSION …………………………………………………………………………………..20
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TABLE OF AUTHORITIES
Page
CASES
Adickes v. S.H. Kress & Co.
398 U.S. 144, 158-60 (1970)…………………………………………………………………..7
Anderson v. Liberty Lobby, Inc.
477 U.S. 242, 249 (1986)……………………………………………………………………..10
Ballard v. Savage
Case No. 92-840 JM(AJB), 1997 U.S. Dist. LEXIS 24013, at *34
(S.D. Cal. Nov. 10, 1997)……………………………………………………………………..15
Blue Ridge Ins. Co. v. Stanewich
142 F.3d 1145, 1147 (9th Cir. 1998)………………………………………………………14
Celotex Corp. v. Catrett
477 U.S. 317, 325 (1986)……………………………………………………………………….7
Coleman v. Quaker Oats Co.
232 F.3d 1271, 1292-1293 (9th Cir. 2000) ……………………………………………….9
Coverdell v. Dep’t of Soc. & Health Servs.
834 F.2d 758, 769 (9th Cir. 1987)……………………………………………………………7
F.T.C. v. Publ’g Clearing House, Inc.
104 F.3d 1168, 1171 (9th Cir. 1997)………………………………………………………..8
Fazio v. City & County of San Francisco
125 F.3d 1328, 1331 (9th Cir. 1997)………………………………………………………10
Fed. Ins. Co. v. Burlington N. & Santa Fe Ry. Co.
270 F.Supp.2d 1183, 1185 (C.D. Cal. 2003)……………………………………………10
Guangzhou Yuchen Trading Co. v. Dbest Prods. Inc.
No. CV 21-04758-JVS-JDE, 2023 U.S. Dist. LEXIS 55007, at *6
(C.D. Cal. Feb. 24, 2023)……………………………………………………………………..18
Krug v. Imbordino
896 F.2d 395, 397 (9th Cir. 1990)………………………………………………………….14
LVRC Holdings, LLC v. Brekka
581 F.3d 1127, 1132 (9th Cir. 2009)…………………………………………………13, 14
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.
475 U.S. 574, 587 (1986)……………………………………………………………………..10
Mintz v. Mark Bartelstein and Associates, Inc.
906 F.Supp.2d 1017 (C.D. Cal. 2012)…………………………………………………….19
Nigro v. Sears, Roebuck & Co.
784 F.3d 495, 497 (9th Cir. 2015)……………………………………………………………8
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Oregon Mut. Ins. Co. v. Victorville Speedwash, Inc.
No. CV 14-07909-AB (SHX), 2015 WL 12656274, at *4
(C.D. Cal. July 6, 2015)………………………………………………………………………….7
Orr v. Bank of America
285 F.3d 764, 773 (9th Cir. 2002)………………………………………………………….10
Snapp v. United Transp. Union
889 F.3d 1088, 1103 (9th Cir. 2018)………………………………………………………17
Subotincic v. 1274274 Ontario Inc.
No. SACV 10-01946 AG (PJWx), 2013 U.S. Dist. LEXIS 110726, at
*51 (C.D. Cal. Apr. 9, 2013)…………………………………………………………………11
Super Future Equities, Inc. v. Wells Fargo Bank Minn.
N.A., No. 3:06-CV-0271, 2007 U.S. Dist. LEXIS 91947
(N.D. Tex. Dec. 14, 2007)…………………………………………………………………….18
T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n.
809 F.2d 626, 631 (9th Cir. 1987)………………………………………………………….12
Thomas v. Bible
694 F. Supp. 750, 757 (D. Nev. 1988) ……………………………………………………14
Vaughn v. City of Orlando
413 Fed. Appx. 175 (11th Cir. Feb. 7, 2011)…………………………………………..12
Villiarimo v. Aloha Island Air, Inc.
281 F.3d 1054, 1065 n. 10 (9th Cir. 2002)………………………………………………12
STATUTES
18 U.S.C. §1030……………………………………………………………………………………………16
Fed. R. Civ. Proc. 56……………………………………………………………………………………….7
OTHER AUTHORITIES
7 James Wm. Moore et al., Moore’s Federal Practice
§30.25[3] (3d ed. 2016)………………………………………………………………………..18
Cal. Code Regs., tit. 11, §999.9.4……………………………………………………………………19
Fed R. Evid. 901 …………………………………………………………………………………………..11
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I. INTRODUCTION
This case is, and has always been, a witch hunt. According to Breaking Code
Silence (“BCS”), in March, 2022, someone went on the Google Search Console and
directed Google to remove the domain www.breakingcodesilence.org (the .Org
Domain) from Google Search. Although there is no direct evidence of Jeremy
Whiteley’s involvement, and although BCS’s own records show that Whiteley did
not have access to the Google Search Console when the request was made, BCS
believes that Whiteley was responsible and decided to sue him, devastating his
career as a technology entrepreneur.
After hundreds of discovery requests, eight depositions, substantial motion
work, and a forensic inspection, BCS still has no evidence that Whiteley submitted
the alleged deindexing request. In fact, BCS’s Opposition to the Motion admits that
BCS has “no direct evidence establishing who submitted the deindexing request.”
(Dkt. 169, p. 10.) BCS is incapable of explaining how Whiteley could have
submitted the deindexing request when all of the evidence shows that Whiteley did
not have administrative access to the Google Search Console at the time.
Nevertheless, and despite (1) Whiteley’s declaration that he did not submit
the alleged deindexing request, (2) Google Search records that prove Whiteley could
not have submitted the deindexing request, (3) Whiteley’s expert’s opinion that
there is no evidence beyond speculation that Whiteley submitted the deindexing
request, (4) BCS’s admission that it does not have any direct evidence against
Whiteley, and (5) the complete lack of any evidence showing that BCS was harmed,
BCS stubbornly maintains that Whiteley was responsible based on non-probative
and weak circumstantial evidence.
Worse still, the lawsuit against Whiteley lacks legitimate purpose. As close as
can be determined, the .Org Domain was only removed from Google Search, if at
all, for at most three days and as little as one day. BCS has been unable to prove
through any admissible evidence that it lost any donations during that time, let alone
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$5,000, as required by the Computer Fraud and Abuse Act (the “CFAA”). BCS also
admits that it did not pay anyone anything to investigate the alleged deindexing. At
bottom, there is no evidence that BCS suffered any harm.
Whiteley respectfully asks the Court to end this witch hunt.
II. LEGAL ARGUMENT
A. BCS Cannot Show that Whiteley Accessed the Google Search
Console and Caused the .Org Domain to be Deindexed
1. BCS Misstates the Evidentiary Burden Shifting Standard
In the most traditional form of summary judgment motion, a party submits
uncontroverted evidence that disproves an essential element of the opposing party’s
claim. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-60 (1970). This is the socalled “tried-and-true” form of summary judgment. Alternatively, the moving party
can carry its initial burden by arguing that the opposing party lacks sufficient
evidence to prove its claim at trial. Fed. R. Civ. Proc. 56(c)(1)(B); Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). This approach is sometimes known as a “no
evidence” motion for summary judgment. Fed. R. Civ. Proc. 56(d); Celotex, 477
U.S. at 326; Oregon Mut. Ins. Co. v. Victorville Speedwash, Inc., No. CV 14-07909-
AB (SHX), 2015 WL 12656274, at *4 (C.D. Cal. July 6, 2015). The Ninth Circuit
has held that the no-evidence approach does not require the moving party to do
anything more than to “point[] out to the District Court – that there is an absence of
evidence…” Coverdell v. Dep’t of Soc. & Health Servs., 834 F.2d 758, 769 (9th Cir.
1987).
Whiteley’s Motion meets both the tried-and-true and no-evidence standards.
To meet the tried-and-true standard, Whiteley declared that he did not access the
Google Search Console to deindex the .Org Domain. And he proved that it would
have been impossible for him to do so because he did not have administrative access
to the Google Search Console when the deindexing request was allegedly made.
(Dkt. 152, pp. 11-12.) To meet the no-evidence standard, Whiteley also
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demonstrated in great detail that BCS has no evidence that he deindexed the .Org
Domain. And in support thereof, Whiteley submitted the declaration of his expert,
Clark Walton, who opines that there is no evidence suggesting that Whiteley was the
one who caused the alleged deindexing. (Id., pp. 10, 13-17.) Under either the triedand-true or the no-evidence standard, the evidentiary burden shifts to BCS.
BCS misunderstands the above summary judgment standards. Over and over,
BCS asserts that the lack of evidence somehow creates triable issues of fact. BCS
specifically argues that Clark Walton’s opinion that there is no proof that Whiteley
deindexed the .Org Domain itself creates a triable issue of fact, which is an absurd
notion. Fundamentally, BCS’s argument misconstrues its own burden of proof.
2. Tried and True Standard: Whiteley Proved That He Did Not
Cause the .Org Domain to be Deindexed
BCS failed to rebut Whiteley’s evidence that he did not cause the deindexing
and could not have done so because he lacked access. Rather than disprove the
many statements in Whiteley’s declaration, BCS argues that the Court should
disregard it in its entirety because the declaration is self-serving. (Dkt. 169, p. 13.)
But the law merely provides that self-serving declarations presented without any
other details or other supporting evidence are insufficient to satisfy a defendant’s
initial burden on summary judgment. F.T.C. v. Publ’g Clearing House, Inc., 104
F.3d 1168, 1171 (9th Cir. 1997). When declarations are presented along with other
evidence, or when they are based on personal knowledge, legally relevant, and
internally consistent, the Court is to consider them even if they are self-serving.
Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015) (“[T]he district
court may not disregard a piece of evidence at the summary judgment stage based
on its self-serving nature.”) Whiteley’s declaration is submitted with a host of other
legally relevant and consistent evidence and must be considered.
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Moreover, BCS effectively concedes that it would have been impossible for
Whiteley to have caused the alleged deindexing because he did not have the
requisite administrative access. BCS made no attempt to show that Whiteley had
administrative access to the Google Search Console on March 9th. Instead, BCS asks
the Court to infer that it must have been possible because Whiteley had access to the
Google Webmaster Central on the 11th
. (Dkt. 169, p. 16.) BCS made no attempt to
explain away the several documents showing that Whiteley was first given access to
the Google Webmaster Central (not even the Search Console) on the 11th
.
BCS also suggests for the first time in its Opposition the possibility that
Whiteley accessed the Google Search Console using McNamara’s credentials.
Beyond articulating it as a possibility, BCS offers no evidence showing Whiteley
has ever had access to McNamara’s credentials, or even that McNamara’s
credentials were in fact used to access the Google Search Console to cause the
deindexing. (Dkt. 169, p. 15.)
BCS cannot avoid summary judgment by suggesting the possibility that
Whiteley used McNamara’s credentials. Not only is there no evidence supporting
this claim, but it is also well established that issues on summary judgment are
framed by the complaint. A plaintiff is not permitted to oppose summary judgment
based on a new theory of liability because it blindsides the defendant after discovery
has closed. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-1293 (9th Cir. 2000).
The Complaint specifically alleges that Defendants deindexed the .Org Domain
through the use of Whiteley’s administrative credentials. (Dkt. 2, ¶36.) This theory
was repeated in BCS’s written discovery responses (Ex. 51, No. 3, Appendix A) and
Vanessa Hughes, acting as a 30(b)(6) representative, testified that the Google Search
Console was accessed through Whiteley’s administrative credentials. (Ex. 45, pp.
59:14-60:2 [“the email address that was used to gain access belonged to Jeremy
Whiteley.”].) BCS cannot change its theory of liability now.
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3. No Evidence Standard: BCS Failed to Present any Evidence
that Whiteley Deindexed the .Org Domain
(a) BCS had the Burden of Presenting Admissible,
Significantly Probative, Evidence.
Once the burden shifts, “[t]he non-moving party must make an affirmative
showing on all matters placed in issue by the motion as to which it has the burden of
proof at trial.” Fed. Ins. Co. v. Burlington N. & Santa Fe Ry. Co., 270 F.Supp.2d
1183, 1185 (C.D. Cal. 2003). The nonmoving party “must introduce some
‘significant probative evidence tending to support the complaint.’” Fazio v. City &
County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson v.
Liberty Lobby, Inc. 477 U.S. 242, 249 (1986)). And in so doing, the nonmoving
party must rely exclusively on admissible evidence. Orr v. Bank of America, 285
F.3d 764, 773 (9th Cir. 2002).
Where a defendant invokes the no-evidence summary judgment standard,
the plaintiff’s burden mirrors the standard for a directed verdict. Anderson, 477 U.S.
at 250-251. The judge must ask herself whether a fair-minded jury could return a
verdict for the plaintiff based on the evidence the plaintiff has presented. The mere
existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff. Id. at 253. Evidence that is “merely colorable,” that is “not significantly
probative,” or which only presents “some metaphysical doubt as to the material
facts,” will not defeat a motion for summary judgment. Id. at 249-250; Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
(b) BCS Has Not Submitted Any Admissible Evidence that a
Deindexing Request was Submitted by Anyone
BCS has failed to proffer any admissible evidence that anyone accessed the
Google Search Console to submit a deindexing request, let alone that Whiteley did
so. While BCS’s Opposition and Separate Statement state in conclusory fashion that
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“[o]n March 9, 2022, a request was submitted to de-index the BCS website”, BCS
failed to present any admissible evidence supporting this statement. The lone
citation relied upon by BCS is “Magill Decl., Ex. J.” (Dkt. 169, p. 11; PMF 27.)
Exhibit J, in turn, is a screen shot which appears to be of the Google Search
Console, but BCS laid no foundation for the introduction of this screenshot
including, who took the screenshot, how it was taken, what it shows, and how it was
preserved. Without such foundation, the screenshot is inadmissible and cannot be
relied upon to defeat summary judgment. Fed R. Evid. 901; see also Subotincic v.
1274274 Ontario Inc., No. SACV 10-01946 AG (PJWx), 2013 U.S. Dist. LEXIS
110726, at *51 (C.D. Cal. Apr. 9, 2013) (unauthenticated website screenshot did not
create a genuine issue of material fact.)
Even if the screenshot was admissible, BCS failed to present any
corroborating testimony from an expert explaining its significance. BCS instead
asks the Court to interpret the screenshot as proof that someone manually submitted
a deindex request through the Google Search Console. However, as declared by
Clark Walton, the screenshots of the Google Search Console do not necessarily lead
to that conclusion. Specifically, the deindexing could have been the result of an
automated Google response accidentally triggered by issues with BCS’s website.
(Dkt. 152-7, ¶¶21-24.) Notably, BCS does not contest that there were serious issues
with its website at the time of the deindexing, including URLs marked as “no-index”
and several broken site maps. (UMF, Nos. 8-10.)
In its Opposition, BCS attempts to twist the above facts by arguing that the
possibility that BCS accidentally caused the deindexing creates a disputed fact.
(Dkt. 169, p. 20.) Once again, BCS’s argument reflects a misunderstanding of the
applicable legal standards. Under the no-evidence standard, Whiteley need not prove
how the .Org Domain was deindexed. To meet his initial burden, all Whiteley
needed to show was that BCS’s evidence is insufficient to show that Whiteley
submitted a deindexing request. Once Whiteley met this burden (which he did), it
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was incumbent upon BCS to come forward with admissible evidence proving
Whiteley’s culpability. BCS’s evidence – a single inadmissible screenshot submitted
without any explanation – fails to show that anyone manually submitted a
deindexing request and, accordingly, summary judgment is appropriate.
(c) BCS’s Circumstantial Evidence is Not Significantly
Probative and is Insufficient
By BCS’s own admission, BCS does not have any direct evidence which
proves that Whiteley submitted the alleged deindexing request. (Dkt. 169, p. 10[“There is no direct evidence establishing who submitted the deindexing request.”];
see also id., p. 14 [“Given the nature of the Website deindexing, there is no direct
evidence proving who did it.”]) Instead of providing the Court with direct evidence,
BCS asks the Court to make a series of attenuated assumptions based on
circumstantial evidence. Specifically, BCS asks the Court to “reasonably infer” that
(1) Whiteley had access to the Google Search Console on March 9th because
McNamara granted him administrative access to Google Webmaster Central (at that
time, a separate tool) two days later on March 11th, and (2) Whiteley is the most
likely person to have caused the alleged de-indexing because he left BCS on “hostile
terms” and because he has technical expertise. (Id., pp. 15-16.)
At summary judgment, the Court need not draw all possible inferences in
favor of the non-moving party, only reasonable inferences. Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1065 n. 10 (9th Cir. 2002). There must be some
limit to the extent that inferences can be drawn, otherwise Rule 56(e)’s requirement
that a party present “specific facts” would be entirely gutted. T.W. Elec. Service, Inc.
v. Pacific Elec. Contractors Ass’n., 809 F.2d 626, 631 (9th Cir. 1987). Inferences
based on speculation and conjecture do not create a material fact sufficient to avoid
summary judgment. Vaughn v. City of Orlando, 413 Fed. Appx. 175 (11th Cir. Feb.
7, 2011).
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As set forth in the Motion, in LVRC Holdings, LLC v. Brekka, 581 F.3d 1127,
1132 (9th Cir. 2009) (“Brekka”), the plaintiff asked the Court to “reasonably infer”
that an ex-employee had accessed his former employer’s website based on the
following: (1) someone logged on to the website using the defendant’s credentials
and no other employees knew the log in information, (2) the computer that logged
on to the website was connected to an ISP near the defendant’s known location, and
(3) an expert testified that the defendant’s computer had been used to access the
website. Id. at 1136-1137. Despite all of this evidence, the Court noted that it “need
not draw inferences that are based solely on speculation”, it found reasons to
discredit the plaintiff’s arguments, and granted summary judgment for the
defendant. Id.
BCS’s Opposition fails to wrestle with Brekka. Its entire analysis is limited to
a footnote which, in conclusory fashion, states that Brekka is distinguishable
because in Brekka the plaintiff failed to prove who used the defendant’s credentials
to access the website, whereas here, according to BCS, Whiteley admitted to
accessing the “BCS Console” on March 11th and, therefore, it is reasonable to infer
that he also accessed the Google Search Console on March 9th. (Dkt. 169, p. 16.)
BCS’s argument is not only insufficient to distinguish Brekka, but the
argument is also based on a misstatement of the facts and the deceptive use of the
term “BCS Console.” There is no such thing as a “BCS Console.” Rather, Google
affords webmasters and domain owners use of a suite of tools, which are accessed
from the user’s own Google accounts, to help manage Google’s interactions with
domains. At the time of the deindexing, these tools included the Search Console and
the Webmaster Central. (Dkt. 152-4, ¶37.)
On March 11th, McNamara granted Whiteley the administrative authority to
use his Google account to access the Search Console and the Webmaster Central for
the .Org Domain. (Id., ¶38.) Whiteley used that access to view the Webmaster
Central on March 11th
. (Dkt. 152-5, ¶¶26-27.) However, Whiteley did not view the
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Search Console (from which the deindex request was allegedly made) until March
29, 2021, after the lawsuit was filed. (Id. at ¶¶29-30.) This fact is plainly reflected in
Whiteley’s Exhibit 41 and BCS’s Exhibit M. Thus, the direct evidence proves both
that (1) Whiteley could not have accessed the Search Console on March 9th because
he did not have the ability to do so until March 11th, and (2) the first time that
Whiteley actually accessed the Search Console was on March 29th
.
The Brekka Court explained that “[i]f the factual context makes the nonmoving party’s claim of a disputed fact implausible, then that party must come
forward with more persuasive evidence than otherwise would be necessary to show
that there is a genuine issue for trial.” Brekka, 581 F.3d at 1137, quoting Blue Ridge
Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir. 1998). Especially given the
direct evidence that Whiteley did not access the Search Console at the time of the
alleged deindexing, BCS cannot carry its burden by simply asking the Court to make
assumptions based entirely on the fact that Whiteley left BCS on unfriendly terms.
B. BCS Failed to Explain, Let Alone Prove, How Whiteley Allegedly
Worked in Concert with McNamara
Throughout the Opposition, BCS suggests that if it cannot prove that
Whiteley caused the deindexing, summary judgment is still inappropriate because
Whiteley was working in concert with McNamara. (Dkt. 169, pp. 17-18.) Assuming
arguendo that McNamara was the one who caused the deindexing (she did not), in
order for BCS to establish Whiteley’s liability, BCS would have to show that
Whiteley “substantially assisted in the hacking itself.” (See Dkt. 152, pp. 19-20.)
BCS’s Opposition fails to identify, much less prove with “specific facts,” how
Whiteley assisted McNamara in deindexing the .Org Domain. Merely alleging that
the two Defendants were conspiring is insufficient. Thomas v. Bible, 694 F. Supp.
750, 757 (D. Nev. 1988); Krug v. Imbordino, 896 F.2d 395, 397 (9th Cir. 1990).
Likewise, BCS cannot meet its burden merely by showing some association between
Whiteley and McNamara. Ballard v. Savage, Case No. 92-840 JM(AJB), 1997 U.S.
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Dist. LEXIS 24013, at *34 (S.D. Cal. Nov. 10, 1997). Even if Whiteley was aware
that McNamara was going to deindex the .Org Domain, that still would not be
enough to prove liability absent some showing of Whiteley’s participation. Id.
BCS does not explain how Whiteley “substantially assisted” in the alleged
deindexing. Indeed, it was impossible for him to have done so. BCS alleges that
someone signed on to the Google Search Console and made a deindexing request by
clicking a small handful of buttons. If McNamara, and not Whiteley, was the one
who clicked the buttons, what involvement did Whiteley have? The reality is that
BCS does not know who (if anyone) submitted the deindexing request, but
nevertheless is asking the Court to impose liability on Whiteley.
C. BCS Failed to Show Specific Facts Proving Mens Rea
Most of BCS’s analysis regarding Whiteley’s mens rea focuses on whether
McNamara owns the .Org Domain. In so doing, BCS missed the point. In order to
grant summary judgment, the Court need not determine the actual ownership of the
.Org Domain, only whether Whiteley’s belief was reasonable.
BCS failed to present any admissible evidence showing why it would be
unreasonable for Whiteley to believe that McNamara owned the .Org Domain. As
reflected in UMF 37 and PMF 17, the only evidence that BCS presented on this
issue are Exhibits F, G and H. None of these exhibits are admissible as BCS failed
to lay the foundation for, or authenticate, them. (Dkt. 169-2, ¶¶11-12; Dkt. 169-20,
¶7.) More importantly, none of the exhibits are helpful to BCS. Exhibit F appears to
be a chat made outside the presence of Whiteley, and accordingly, does not give any
insight to whether Whiteley reasonably believed that McNamara owns the .Org
Domain. Exhibit G hurts, rather than helps, BCS. Specifically, Whiteley confirms
his belief that intellectual properties created before BCS’s formation belong to the
persons who created them by stating, “I read this as anything that was created before
March 18th, 2021 would be your property.” Finally, it is unclear why BCS even
cited to Exhibit H as it is completely unrelated to intellectual property ownership.
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D. BCS Has Not Presented Any Admissible Evidence Corroborating
its Damage Theory
To have standing to assert its CFAA claim, BCS had to prove at least $5,000
in losses. (18 U.S.C. §1030(c)(4)(A)(i)(1).) As argued in the Motion, BCS has
presented three theories of “losses” in this case: (1) volunteer time, (2) attorney
hours, and (3) potential lost donations. BCS has apparently conceded that the
attorney hours are not recoverable losses. (See UMF 55.) As shown below, BCS
cannot prove that its two other theories constitute recoverable losses either.
1. BCS Failed to Prove its Volunteer Time is a Cognizable Loss
It is undisputed that “BCS has never paid any amount of money to anyone to
investigate the allegations of the Complaint.” (UMF 55.) Accordingly, the Court
must decide as a matter of law whether time spent by BCS’s unpaid volunteers
meets the CFAA’s definition of a “loss.” The CFAA defines “loss” as follows:[A]ny reasonable cost to any victim, including the cost of
responding to an offense, conducting a damage
assessment, and restoring the data, program, system, or
information to its condition prior to the offense, and any
revenue lost, cost incurred, or other consequential damage
incurred because the interruption of service.
18 U.S.C. §1030(e)(11). Thus, the term “loss” is defined as any “reasonable cost and
the statute provides several examples of such “reasonable costs.” Id.
As explained in the Motion, the plain and ordinary meaning of the word
“cost” is “an amount paid or charge for something’ price or expenditures.” (See Dkt.
152, pp. 21-22.) Because BCS did not pay its volunteers anything, the time the
volunteers allegedly spent conducting an investigation cannot be a “cost.” BCS
failed to cite a single case holding to the contrary. Instead, all of the cases cited by
BCS involve paid salaried employees. (See Dkt. 169, p. 25.)
Even if the Court determines that volunteer time is a “cost” within the
meaning of the statute, once Whiteley asserted that BCS has no evidence of
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damages, the burden shifted to BCS to prove its costs were “reasonable.” At a
minimum BCS had to establish the amount of time spent, the value of that time, and
the reasonableness of such time. BCS did not come close to carrying its evidentiary
burden. Although BCS’s Opposition and Separate Statement state that BCS spent at
least 200 hours responding to the alleged deindexing, none of the evidence cited by
BCS actually supports that proposition. Specifically, neither Magill nor Jensen’s
declarations specify what hours were worked by anyone other than Jensen (See Dkt.
169-2 and 169-28), nor does Jensen’s deposition testimony (See Dkt. 169-22.)
Jensen’s declaration regarding the time he spent, and the value of that time,
should be excluded in its entirety. On November 14, 2023, Defendants took the
deposition of Jennifer Magill in her capacity as a 30(b)(6) witness on the topics of
(1) “all costs incurred by BCS related to the cyber hacking incidents alleged in BCS’
Complaint including: the amounts of each cost incurred,” and (2) “[a]ll losses and
damages suffered by BCS as a result of each instance of unauthorized or excessive
access by  McNamara and/or Jeremy Whiteley alleged in the Complaint.”
(Tate Reply Decl. ¶2, Ex. 107 [Magill Depo.].) Magill was specifically asked how
much time Jensen spent investigating the alleged deindexing as opposed to the other
allegations of the complaint. Magill plainly stated that she did not know. (Id., pp.
66:19-67:3). Magill was later asked what the value of Jensen’s time was and she
once again testified that she did not know. (Id., p. 71:21-25.) Magill was asked
similar questions for her own time and for Hughes’s time, but she was unable to
answer these questions either. (Id., pp. 65:19-71:25.)
The Ninth Circuit has explained that “because a Rule 30(b)(6) designee
testifies on behalf of the entity, the entity is not allowed to defeat a motion for
summary judgment based on an affidavit that conflicts with its Rule 30(b)(6)
deposition or contains information that the Rule 30(b)(6) deponent professed not to
know.” Snapp v. United Transp. Union, 889 F.3d 1088, 1103 (9th Cir. 2018)
emphasis added; 7 James Wm. Moore et al., Moore’s Federal Practice §30.25[3] (3d
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ed. 2016). In Guangzhou Yuchen Trading Co. v. Dbest Prods. Inc., No. CV 21-
04758-JVS-JDE, 2023 U.S. Dist. LEXIS 55007, at *6 (C.D. Cal. Feb. 24, 2023),
Judge Selna explained:
Because a Rule 30(b)(6) witness “speaks” on behalf of the
corporation, the Rule obligates the corporate party to
“prepare its designee to be able to give binding answers on
behalf of [the corporation].” … Therefore, Rule 30(b)(6)
prohibits “a 30(b)(6) representative from disclaiming the
corporation’s knowledge of a subject at the deposition and
later introducing evidence on that subject.” The purpose is
to prevent a corporate defendant from “thwarting”
inquiries during discovery and “then staging an ambush”
at trial.
Judge Selna went on to cite to Super Future Equities, Inc. v. Wells Fargo
Bank Minn., N.A., No. 3:06-CV-0271, 2007 U.S. Dist. LEXIS 91947 (N.D. Tex.
Dec. 14, 2007) as an example of a properly excluded declaration. The Super Future
Equities decision is on all fours with the instant case in that the Court struck a
declaration submitted in the summary judgment context which articulated damages
when the 30(b)(6) representative was previously asked to quantify the plaintiff’s
damages and he stated that he could not do so. Id. at *27. Here, because BCS’s
30(b)(6) representative failed to state how much time was spent by the volunteers
investigating the alleged deindexing or to estimate the value of that time, BCS is
precluded from offering such evidence in opposition to the Motion.
Even if the Court is inclined to consider Jensen’s testimony, BCS still failed
to establish $5,000 in damages. According to Jensen, he only spent 16 hours
investigating what happened and working to remedy the alleged deindexing. (Dkt.
169-28, ¶9.) Assuming Jensen’s self-stated hourly rate of $250, such time was worth
$4,000. Jensen then lists a host of other activities that he conducted in response to
the “attack.” As presented, it is impossible to tell what percent of Jensen’s other
activities, which apparently happened after the deindexing issue was resolved on the
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12th
, were “reasonable” or “essential to remedying the harm.” Mintz v. Mark
Bartelstein and Associates, Inc., 906 F.Supp.2d 1017 (C.D. Cal. 2012). All of
Jensen’s activities are very vaguely worded and inadequately described (e.g.
“verifying the security system”) or are lumped together. The Court cannot tell what
Jensen actually did, how much time he spent on each activity, whether each activity
was essential to remedying the harm, and whether the amount of time he spent on
each activity was reasonable. Accordingly, BCS has not met its burden of showing
that Jensen’s volunteer time was a “reasonable cost.”
2. BCS Failed to Prove That it Lost $5,000 in Donations
It is undisputed that at the time of the alleged deindexing, BCS was not
properly registered as a charitable organization with the California Attorney
General. (UMF 58.) It is also undisputed that, pursuant to Cal. Code Regs., tit. 11,
§999.9.4, BCS’s failure to register precluded it from accepting charitable donations.
(See generally Dkt. 169 [BCS fails to address the argument].) The Court should find
that BCS’s lost donation theory fails for this reason alone.
In addition, BCS also does not explain Noelle Beauregard’s declaration in
which she admits that she disabled the Google Analytics, rendering it impossible for
BCS to monitor its website traffic. The fact that Beauregard previously thought that
the drop in website traffic was due to the deindexing – before she realized that the
analytics had been turned off – is irrelevant. (Dkt. 152-2, ¶6 [she noticed the issue
on April 13, 2022].)
Putting these fatal flaws aside, BCS’s lost profit theory is more than
speculative; it is unbelievable. BCS asks the Court to assume that BCS would have
received more than $5,000 in donations in a 1-3 day period1 when the .Org Domain
1 BCS has never been able to articulate how long the .Org Domain was not appearing
on Google Search. BCS admits that it does not know how long it took for the
deindex request to go into effect after it was allegedly made on March 9th. BCS also
admits that it did not discover the issue until March 11 and resolved it by March 12.
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was not appearing on Google Search, despite the fact that BCS historical daily
average of donations and subscriptions was only $44.21. (Dkt. 152-8, ¶19(b).) BCS
does not dispute that it historically received less than $50 a day. Instead, BCS argues
that deindexing occurred about the same time as the premiere of two television
shows. BCS then speculates that it is reasonable to assume that BCS would have
received at least $5,000 in donations following these “high publicity events”
because BCS had previously received over $10,000 in donations in connection with
another high publicity event – lobbying with Paris Hilton. (See Dkt. 169, p. 23.)
There are two fundamental problems with BCS argument. First, the math does
not work in BCS’s favor. According to Magill’s declaration and her accompanying
graphs, BCS received a total of $10,861 between October 9, 2021 and November
30, 2021. (See Dkts. 169-6 and 169-7.) Thus, during BCS’s previous “high publicity
event” it only received an average of $208.87 per day over a 52-day period.
Accordingly, assuming an apples-to-apples comparison, BCS would have only have
lost less than $650 in donations during the 1-3 day window when the .Org Domain
was not appearing on Google Search.
Second, the Opposition misleadingly implies that the .Org Domain was not
appearing on Google Search on March 12th, when Lifetime premiered the Cruel
Instruction program. But BCS’s 30(b)(6) representatives testified to the contrary.
(Tate Reply Decl., Ex. 108 [Jensen Depo.] p, 88:15-21; see also Magill Exhibit F[“[W]e were able to cancel the temporary deindexing request shortly before the
LifeTime movie premiered on 3/12.”].) Notwithstanding that the fact that the .Org
Domain was indexed at the time of the Cruel Instruction premiere, BCS only
received $170.23 in donations on March 12th. (Dkt. 152-8, ¶19(b).) The notion that
BCS would have received more than 29 times that amount in the 1-3 days before the
movie premiered is simply not believable.
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III. CONCLUSION
For the foregoing reasons, the Court should grant summary judgment.
DATED: February 29, 2024 JULANDER, BROWN & BOLLARD
By: /s/ M. Adam Tate
M. Adam Tate
Catherine Close
Attorneys for Defendants
MCNAMARA and
JEREMY WHITELEY
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L.R. 11-6.2 CERTIFICATION
The undersigned, counsel of record for Defendants certifies that this brief
contains 5,048 words, which complies with the word limit of L.R. 11-6.1.
Date: February 29, 2024 /s/ M. Adam Tate
M. Adam Tate
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CERTIFICATE OF SERVICE
I hereby certify that on this 29th day of February, 2024, I electronically filed
the foregoing paper(s) with the Clerk of the Court using the ECF system which will
send notification to all parties of record or persons requiring notice.
/s/ Helene Saller
Helene Saller
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