Ex Parte Application

Cal. Super. - 6th Dist.November 13, 2020

._a AWN \OOONJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 DANIEL J. BERGESON, SBN 105439 dbergeson@be-law.com REBECCA N. KAUFMAN, SBN 199534 rkaufman@be-Iaw.com BERGESON LLP I 1 1 N. Market Street, Suite 600 San Jose, California 951 13 Telephone: (408) 291-6200 Facsimile: (408) 297-6000 Attorneys for Hunter Bouchard FELE JAN “+2021 SUPERIOR COURT 0F THE STATE OF CALIFORNIA COUNTY 0F SANTA CLARA Hunter Bouchard, Plaintifi', v. Doe Defendants 1-10, Defendants. Case N0. 20CV373485 PLAINTIFF’S NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR EARLY DISCOVERY AND RELATED ORDER; MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F PLAINTIFF’S EX PARTE APPLICATION T0 TAKE EARLY DISCOVERY (CAL. CIV. PROC. CODE § 2025.210(b)); DECLARATIONS OF HUNTER BOUCHARD AND REBECCA NELL KAUFMAN Date: January 8, 2021 Time: 9:00 a.m. Dept.: 20 Judge: Hon. Socrates P. Manoukian Complaint Filed: November 13, 2020 NO HEARING REQUESTED Plaintifi's Ex Pane Application for Early Discovery Case No. 20CV373485 QOO'Qmm-fi-wmh- NNNNNNNNNHHHHHHHHb-IH WNQUWQLQNHOLOMNOEWQQJNb-‘O TO THE COURT AND ALL PARTIES AND THEIR COUNSEL: PLEASE TAKE NOTICE that 0n January 8, 2021 at 9:00 am. in Department 20 0f the above-entitled Court, located at 191 N. First SL. San Jose, CA 95113. 0r as soon thereafter as it may be heard. Plaintiff Hunter Bouchard (“Plaintiff”), by and through his counsel, will apply ex part6 for an order allowing early discovery and a related order t0 obtain third-party records that are at risk of being destroyed. These papers will be filed on Janualy 7, 2021 and Plaintiff is not requesting a hearing but will appear if the Court would like the parties t0 argue the Application at a date and time of this Court's Choice. Specifically, Plaintiff seeks authorization for early discovery from Google. which owns the Gmai] account from which the Doe Defendant anonymously sent a false and defamatory email t0 Plaintiff's employer. Plaintiff will suffer 'meparable harm absent relief because, Plaintiff is informed and believes, Google has a practice of deleting records after users delete their Gmai] accounts. Moreover, Plaintiff is currently looking for new employment after being fired as a direct result 0f the defamatoxy email. The Doe Defendant will likely send Plaintiff’s future employers similar false and defamatory emails, and Plaintiff has n0 other means to identify the Doe Defendant. Pursuant to Krjnsky v. Doe. 6 Cal. App. 4th 1154 (2008) and related authorities, Plaintiff has submitted evidence supporting his claim and has attempted t0 notify the Doe Defendant 0f this action and application. This application is brought pursuant to Code of Civil Procedure section 2025.210(b) and Rule 0f Court 3. 1200 et seq.. and it is supported by this application, the memorandum of points and authorities, supporting declarations 0f Plaintiff and Rebecca Nell Kaufman, [he Complaint. and any further evidence and argument that the Court may receive, whether at hearing 0r otherwise. Plaintiff is not aware of the identity 0r contact information for any other party 0r counsel. This is Plaintiff’s second exparte application in this case as the first one. seeking the exact same relief, was denied without prejudice because it did not comply with Local Rule 16 (C) and did not specify the date, time, and manner 0f intended presentation. It is unknown whether the Doe Defendant will oppose this application. 2 Plaintifs Ex Pane Application for Early Discovery Case No. 20CV373485 (DOO-dmmfiwmb-t NNNNNNNNmr-Iu-tr-hn-IHHr-Ab-AHH m-flmmfiwa-AOCDWNIODO'IJAUDNHO Dated: January 6. 2021 BERGESON LLP By: Q Rebecca N. Kaufman Attorneys for Hunter Bouchard 3 Plaintiff's Ex Pane Application for Early Discovery Case N0. 20CV373485 Lhub-QJN \1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM 0F POINTS AND AUTHORITIES I. Introduction Pursuant to California Code of Civil Procedure section 2025.210(b), Plaintiff Hunter Bouchard (“Plaintiff") brings this eXparIe application for an order permitting early discovery to identify the unknown Doe Defendant (one anonymous actor 0r multiple people acting in concert) (the “Application”). Specifically, Plaintiff seeks leave to serve a subpoena on Google t0 unmask the user behind the Gmail account with the alias fightingracism20@,qmail.com (“Fighting Racism"), from which the Doe Defendant sent an email comprising false and per se defamatory statements and images that directly and proximately damaged Plaintiff. The anonymous Doe Defendant sent an email t0 Plaintist employer 0n June 11, 2020 that falsely and maliciously accused Plaintiff 0f repeatedly screaming the “N-word" to a group 0f African-American teens and posting a picture of himself 0n Snapchat with the caption “I Hate N--- --s.” The email also falsely accused Plaintiff 0f posting similar images and statements 0n Snapchat. Plaintiff” s employer fired him after receipt of the email. Plaintiff is not a racist. Plaintiff did not post a racist message online and never yelled the “N-word” to a group 0f African- American teens. The proposed order is limited to authorization of one subpoena to Google regarding the Fighting Racism Gmail account, which may identify an intemet protocol (“1P") address from which the email was sent or account created. The 1P address may lead to the name and contact information for the Doe Defendant. Declaration 0f Rebecca Nell Kaufman (“Kaufman Decl."), 112 & Ex. A (proposed subpoena). This Application should be granted under Krjnsky v. Doe 6, 159 Cal. App. 4th 1154 (2008) and related cases because: (1) Plaintiff has made a prima facie case for his claim for defamation: (2) Plaintiff has attempted t0 notify the Doe Defendant 0f this action and Application for discovery by sending a copy of the Complaint and this Application (with related papers) to the Fighting Racism account, in addition t0 trying to trace the account t0 the Doe Defendant; (3) good cause exists for related orders t0 effectuate the subpoena; and (4) Plaintiff will suffer irreparable hann absent relief because the Doe Defendant is likely t0 send a similar email to Plaintist next 4 Plaintiff's Ex Pane Application for Early Discovery Case No. 20CV373485 mdhwm LOW‘JO? 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employer, Plaintiff has n0 other means to identify the Doe Defendant, and the requested records are at fisk 0f being deleted. II. Statement of Facts. A. The Defamatorv Anonymous Email. Plaintiff is a 2013 graduate 0f the United States Naval Academy. Declaration of Hunter Bouchard (“Bouchard Decl."), 1] 2. Upon graduation, Plaintiff served on active duty for five years in the Navy Supply Corps, reaching the rank 0f Lieutenant. Bouchard Decl., 11 2. He was honorably discharged from the Navy in May 2018 and remained in the Inactive Ready Reserves for two years. Bouchard DecI., Tl 2. In July 2018 Plaintiffjoined the investment bank G.C. Andersen Partners, which he left in Februaxy 2019 to join the biotech startup Validose in New York as the first full-time hire and Director 0f Business Development. Bouchard Decl., 11 2. Plaintiff has never been in the public eye 0r injected himself into a matter of public controversy. Bouchard Decl., 11 2. As outlined in the Complaint, on June 11, 2020. the Doe Defendant anonymously sent a false and per se defamatory email from the Fighting Racism Gmail account fightingracism20@gmafl.com t0 Marcel Botha, CEO 0f Plaintiff’s then-employer Validose (“the Email"). The Email, titled “A Racist at Your Company,” falsely accused Plaintiff 0f vile racist acts, stating: Hi Marcel, Iwanted t0 bring t0 your attention a problematic individual who works for your company, Hunter Bouchard. While I'd prefer t0 keep myself anonymous, I did wish t0 send along a photo from him in 2015, that he shared 0n his social media account of Snapchat. This is not the only one like it. Around this time, he also repeatedly screamed the “N word” at a group 0f African-American teens. who in tum ended up beginning an altercation that resulted in Mr. Bouchard sustaining injuries. Maybe you'd like t0 keep Mr. Bouchard working at your company, but I can't imagine in times like these when companies are dealing with diversity issues that you would like something like this 5 Plaintiff's Ex Pane Application for Early Discovery Case No. ZOCV373485 LDOONJOEU'IQLONr-t NNNNNNNNNHb-lb-Ifi-IHHr-Ir-II-Ip-n WNGUU'IRLONHOLOW‘JO'JUWbD-WNI-‘O becoming public t0 your investors or 0n social media. Good luck, and hope you make the right decision for your company. Bouchard Decl., 1[ 3. The Email included an altered version 0f a “selfie" Plaintiff posted online five years ago. The otherwise innocuous image was modified t0 include a banner stating “I HATE N-----S,” which the Doe Defendant claimed Plaintiff posted on Snapchat (and, the Email accused Plaintiff 0f posting similarly racist images). Bouchard Decl.. fl 4. Below are the original and altered images: Original Snapchat Post by Plaintiff ‘ Altered Image in Defamatory Email Bouchard Dec1., 1[ 4. The allegations that Plaintiff committed racist acts and is a racist are false. Bouchard Decl.. 11 5. Plaintiff never posted this racist message online. Bouchard Dec1., 11 5. Not only is the photo fabricated, but Plaintiff did not yell the “N-word” to a group 0f African-Americans in any 6 Plaintiff’s Ex Pane Application for Early Discovery Case N0. 20CV373485 .bC/ON LDmKlmU'I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 altercation. Bouchard Dec1., 11 5. Rather. Plaintiff was attacked and robbed. unprovoked, by three men at a gas station in Washington. D.C. in April 2015. Bouchard Decl., 1] 5. The incident took place outside the gas station's convenience store after he took his wallet out t0 purchase items through a payment window. Bouchard Dec1., Tl 5. Plaintiff was hospitalized as a result 0f the attack, and the three suspects were never apprehended. Bouchard Decl., 11 5. The facts surrounding the assault are corroborated by a police report. Bouchard Dec1., 1[ 5. The Doe Defendant acted without any privilege when he/she published the defamatory statements. B. Attempt t0 Identify and Notify the Doe Defendant. Despite reasonable efforts. Plaintiff has been unable to identify the Doe Defendant since he/she anonymously sent the defamatory email to Plaintiff’s employer. Bouchard Decl., fl 6; Kaufman Decl., 2. Plaintiff requested several times that Validose produce [he offending email in an electronic format in hopes [hat he would be able to use the information t0 track down the IP address 0n his own. Bouchard Dec1., fl 6. After much negotiation, Validose finally produced an electronic version of the email 0n November 3. 2020. Bouchard Dec1., 11 6. When Plaintiff presented his forensic expert with the electronic file. Plaintiff was told the only way to identify the Doe Defendant would be to subpoena information from Google. Bouchard Decl., 11 6; see also Kaufman Decl. 11 2. In other words. Plaintiff would have t0 file suit against the Doe Defendant in order to identify him. Accordingly. Plaintiff filed his Complaint against the Doe Defendant on November 13. 2020. Pursuant t0 California Rule of Court 3.1204(1)) (2), Plaintiff has in good faith attempted t0 notify the Doe Defendant of this ex part8 application. On January 5, 202]. counsel for Plaintiff caused an email to be sent t0 the Fighting Racism Gmail account notifying [he Doe Defendant 0f the Complaint and this exparte application. Kaufman Decl., 11 3, Ex. B (email exchange). Plaintiff had n0 other way of notifying the Doe Defendant since his/her identity is unknown. T0 date. Plaintiff’s counsel has not received a response to the email sent t0 Lhe Fighting Racism Gmai] account, and therefore does not know whether this application will be opposed. 7 Plaintiff's Ex Pane Application for Early Discovery Case No. 20CV373485 COOO-flmmfimNH NNNNNNNNNHb-Ib-IHp-np-np-tr-IHH mflmmmeHomemmhmmv-‘O Kaufman Dec1., 1] 3. While exparte discovexy is authorized by law. time is also of the essence as third parties may routinely destroy responsive records. III. Good Cause Exists t0 Authorize Ex Pam: Discoverv Plaintiff seeks exparte relief t0 serve early discovery (and for related orders) pursuant to Code 0f Civil Procedure under section 2025.210(b). which provides “ [O]n motion with 0r without notice. the court, for good cause shown. may grant to a plaintiff leave t0 serve a deposition notice at an earlier date." Under Krjnsky v. Doe 6, 159 Cal. App. 4th 1154 (2008) and its progeny, Plaintiff makes a prima facie showing of his defamation claim, he attempted t0 notify the Doe Defendant of this Application, and will suffer irreparable harm absent relief because, as explained by his forensic expert, Google deletes related information six months after Gmail accounts are deleted. Kaufman Decl.. 112. Moreover, Plaintiff will suffer irreparable harm given the likelihood the Doe Defendant will send a similarly false anonymous email to Plaintiff’s future employers. A. The Krinskv standard for authorizing ex parte discovery. A Plaintiff may serve discovery t0 identify an anonymous defendant if he: (1) attempts t0 notify the anonymous defendant 0f the request, and (2) makes a prima facie showing of his claims. Krinsky V. Doe 6 at 1171-72; see also ZL Technologies, Inc. v. Doe, 13 Cal. App. 5th 603, 612-17 (2017); Glassdoor, Inc. V. Sup. CL. 9 Cal. App. 5th 623, 634-35 (2017). While a plaintiff must ordinarily wait twenty days after [he service 0f the summons to serve a deposition notice. a court, for good cause, may grant leave to serve a deposition notice 0n an earlier date. Cal. Code Civ. Proc. § 2025.210(b); Bernson v. Browning-Fem’s Indu5.. 7 Cal. 4th 926, 930 n. 2 (1994). Such an order may be granted 0n an exparte basis. Cal. Code Civ. Proc. § 2025.210(b); Ca]. Shellfish Inc. V. UnitedSheHfish Ca, 56 Cal. App. 4th 16. 21 (1997). “Where it is clear to the court that discovery 0f the defendant’s identity is necessary t0 pursue the plaintiff’s claim, and the plaintiff makes a prima facie showing [of her claims] a further balancing is not required. ZL Technologies, 13 Cal. App. 5th at 617 (citation omitted). Moreover, a plaintiff seeking t0 unmask an anonymous publisher cannot be faulted for the inability t0 provide evidence 0f facts that can only be known after the anonymous publisher has been identified; Lhe plaintiff need produce evidence 0f only those material facts that are accessible 8 Plaintiff's Ex Pane Application for Early Discovery Case No. ZOCV373485 %OGN CDOO'NIOUO‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 t0 him. See Yelp, Inc. V. Sup. C22, 17 Cal. App. 51h 1, 19 (2017) (citation omitted). B. Plaintifi makes a prima facie showing of his claim for defamation. To state a claim for defamation, a plaintiff must allege: (1) a publication, (2) that is false. (3) that is defamatory, (4) that is unprivileged, and (5) that has a natural tendency t0 injure or cause special damages. See Price v. Operating Engineers Local Union N0. 3, 195 Cal. App. 4th 962. 970 (201 1). Private figures like Plaintiff need only prove the defendant acted negligently. See Stewart V. Rolling Stone LLC, 181 Cal. App. 4th 664 (682) (2010). Statements [hat tend to injure a plaintiff with respect t0 his business or profession or that are harmful from the language itself without [he need for extrinsic information are considered defamation per se and require n0 proof of actual damages. Ca]. Civ. Code § 46; Regalia V. Nethercurt Collection, 172 Cal. App. 4th 361. 367 (2009). Here, Plaintiff demonstrates he has fulfilled all elements of a defamation claim: (1) the Doe Defendant’s emaj] t0 Plaintiff’s employer was a publication; (2) the statements contained therein were false; (3) the statements and altered image were per se defamatory because [hey accused Plaintiff 0f vile racist acts against African-Americans that would subject him t0 scorn and obloquy. as well as imply Plaintiff is unfit to work in a professional capacity; (4) the statements were not privileged and the Doe Defendant knew they were false or acted with reckless disregard for truth or falsity (indeed the Doe Defendant himself altered an otherwise innocent photograph to make Plaintiff look like a racist fool); and (5) because the statements and image at issue are per se defamatory, Plaintiff need not prove special damages (regardless. Plaintiff can prove special damages given he was fired from Validose as a result 0f the email). C. Plaintiff made a good faith effort t0 notify the Doe Defendant of this application. Because providing notice to anonymous defendants is not always feasible, a Plaintiff must only make “reasonable efforts. . .to notify the defendants." Krjnsky, 159 Cal. App. 4th at 1171; ZL Technologies, 13 Cal. App. 5th at 615. Here, the only way for Plaintiffto notify the Doe Defendant about this Application was to send an email 10 his/her account from which the Doe Defendant's sent me offending email. Kaufman Decl., 1] 3, Ex. B (email exchange). 9 Plaintiff‘s Ex Pane Application for Early Discovery Case N0. 20CV373485 Lom'klmmbh-WNH NNNNNNNNNI-‘Hr-IHr-AHHHp-AH mflmUthWNHOCDOONOVM>DOJNHO D. Good cause exists to grant an order to authorize disclosure bv Google and waive notice requirements for telephone corporations. Google, which owns the Fighting Racism Gmail account address at issue, may be classified as a “cable operator" 0r ”telephone corporation.” Under the Federal Cable Communications Policy Act, 47 U.S.C. section 551, et seq. (the “Act”), before é party can seek subscriber information from a cable operator through a subpoena, the subpoena'mg party must obtain a court order allowing the disclosure and must notify the affected subscriber 0f the subpoena. Courts have authorized disclosures by cable operators under [he Act where the party seeking discovery shows good cause and offers a plan to notify the affected subscriber. See, eg., CSC Holdings, Inc. V. Redjsi, 309 F.3d 988, 996 (7th Cir. 2002); Warner Bros. Records v. Does 1- 4, N0. 2:07 CV 0424 TC, 2007 WL 1960602 at *2 (D. Utah July 5, 2007). Similarly, pursuant t0 Code 0f Civil Procedure sectiou 1985.3, a subpoenaing party must ordinarily provide notice t0 a consumer when certain “personal records" are subpoenaed, including from a telephone corporation that is a public utility. However, pursuant t0 Code 0f Civil Procedure section 1985.3 (h), the requirement may be waived upon good cause and due diligence. 7 Good cause exists for the disclosure of telephone and cable company subscriber infomation here. Plaintist subpoena to Google (which may be classified as a cable operator 0r telephone corporation) is necessary t0 obtain the Doe Defendant's identifying and contact information. Accordingly, Plaintiff requests Lhe Court t0 authorize the subpoena t0 Google, waive notice requirements under Code 0f Civil Procedure section 1985.3(h), and authorize disclosure under 47 U.S.C. section 551 and Public Utilities Code section 2894(a). E. Plaintiff will suffer irreparable harm absent ex part6 relief Plaintiff will suffer iITeparable harm absent eXpan‘e relief because: (1) there is n0 other process for identjfying the anonymous sender 0f the defamatory email; (2) Google is likely to retain data for limited time, which makes Lime of the essence t0 obtain [he identifying information (the offending account may have already been 0r will soon be deleted); (3) the Doe Defendant will likely send a similar defamatory email to Plaintiff’s future employers; and (4) Plaintiff is unable t0 serve a regularly-noficed motion without first identifying the Doe Defendant. Kaufman Decl., 11 2. 10 Plaintiff’s Ex Pane Application for Early Discovery Case No. ZUCV373485 CDLH-bWN fl 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further. the requested relief is limited as the proposed subpoena only seeks information t0 identify the Doe Defendant (and exclude speech / communication). Kaufman Decl., 11 2, Ex. A (proposed subpoena). This information is necessary for relief for false and defamatory content. Moreover, the Doe Defendant and Google will still have the opportunity t0 review and object to the specific subpoena request after Google is served (and presumably notifies the Doe Defendant). IV. Conclusion. For the foregoing reasons, the Court should grant Plaintiff’s Application and permit Plaintiff t0 conduct early discovery for the limited purpose 0f identifying the Doe Defendant(s). Dated: January 6, 2021 BERGESON LLP By:Q” Rebecca N. Kaufman Attorneys for Hunter Bouchard 11 Plaintiff‘s Ex Pane Application for Early Discovery Case N0. 20CV373485 H , A : A 4 . ‘ ' Docu859fi Efivelope ID: 644A98AQ-351 F4013-AOA2-38EF887BA63A m» ‘UI IQ- ls.) b) ‘lx’J \l ‘0‘ A 1°m xpopuos- DECLARATION O_F HUNTER BOUCHARD I. My nfirfic is Hunte‘r-Bo’uchard, _plaimlifhf‘ in' thisaflidfi: _I am over 1’8~1ye'ars‘of'age. l makc-this declaration inShppon‘of‘Plainti'ff’évExPane Application fér Early ‘Discovéry. I Cguldz and Would Icstify, under oath to thc following: 2. After gradualihg'fro’m the Unitéd Stat‘esNaval 'A‘cfidér‘ny in‘2013», I sefved 0n ‘active duty {Or five years in'Ihe Navy Sup‘faly Corps, reaching lhc rank’ oeriem'cnanl. I w’as' 110901-3ny dischargedfmm (h; NaVy-in May‘ZO] Sand remained ifi the Ilia'ciiv'g ReadyiRcscfircS‘ fonwo years. ”In July-ZO‘IS Ij'oipqd the ihvcstm‘entbank G.C. Andersen Partners, which'I'lefi in February 201 9 to join the biotech .startup‘ Validqsg‘ i'n New York as the firstfiill-fime hire and Dimple; of Bgsincss DBVclopment. I haVc ncvei begn in th'e public eye or injéétedmysclf ingo arma'ner of ' public controvc‘rs‘y. 3. Ohlifi'fie'vl l, 2020, sqme’one-anonyniouély' sent a faj‘sé find perm defamatory'email from the alias figlitihgrac’istD@gmaiil..com to Marcel'Boiha, CEOo’f Validose. where] was working at the iime. Mr; Bolha provided-m'e with é “hai'dT‘ copy QfIhe cma'il atlhc; Iifnc, which was Iitléd “A Raéist at Your‘Company" and‘falscly accused me of pérbctmting’ ra‘gfjst acgs and beifigfi racist. The email stated: Hi Marcel, :I wanted 10 bring Io your aitention _a problematic individual “ho works for your compan) Hunter Bouchard. While 1'd 'prefer to kegp ,myself‘anon) mous, l did wish t‘o send along a photo from him m 9.015 that he shared 0n his social media account of Snapchal This'ts not the only one like 1t. Around this time. he also. repeatedlv screamed the ‘N word” :11 a group ofAfrican-Amcrican teens, who m tum ended up beginning an a_lgqcation that msulgcd m Mr. Bouchard sustaining injuries. Maybé you 'd like Io keep Mr. Bouchard working at your company, bul I can't imagine in times like these when companies are dealing with diversity Issues that you would like something ”like this becOming public to vour investors or on social media ‘Cood‘luck. and hope you make the right décisionfor'y'our COmpany. 12 Pluinlifl‘s Ex Pane Application for Emfy Discover) Case \‘o. 20CV373485 . , ll , , . ‘ DocuSign EnvelopeJD: 644A98AO-351 F4013-AQA2-35EF687BA53A 4. The email also included an altered version ofa “selfie” I poslcd online five years ago. The photowas modified Io include-a banner stating “I HATE N-'--S_,” which the email claimed] postedon Snapchat. The email also ¢1aimcdl posted similar mcistrmcssages. Below "arcthc originaland altered images: ~AO‘rigi‘nEféfia’p’cfiéi’ir’nagéithaE‘lViidéiéli’ 'i'AfiéEédfii'még-‘epin:DéfzikfidtofiV Emailr ‘ .___._;_..(,n..‘.m‘ M . Q ,7- - » -» » r - A - v , \ ,___‘ 7 __ 5. The allegations 11ml committed racist acts and am a racist arc faise. I did not post this racist message online. Not only is the photo fabricatéd, I never yelled the “N-word" Io a group ofAfrican-Americans ih any altercation. I can only assume the email is referring to an incident when] was anacked and robbcd, 'unprovokcd, by three men at a gas station in Washington, D.C. in April 201 5. I wasassaulted outside a gas station'sn'convcnicncc store after-I 100k out my wallet a_t the paymemwindow. The police responded and took 'a report, aficr which l was hospitalized. The three suspects were never apprehended. 6. Despite my efforts. I have been unable Io identify the sender of‘the email. Validosc 13 Plaintiff‘s Ex Pane Application for Early Discovciy Case No. 20CV373485 powsign Enveippe JD: wagamasz F-4Q135AQA2‘335F3573363A i0 DJ Q\D‘oo~1x originally proyided'me with a~“hard”'c0';5y ofthe ern'ail bu": l undergtoqd‘tha‘t I ngeded‘an electronic‘ version if- l‘was‘ e‘ver‘vgo'ing t’o’rtfack dawnth‘g s'ehdéfisIP'addfeés. .Acgofdjngly, I recipested several times that Validosé produce the email ‘in afi glcctibnic fermat. After much negotiation; Validose'finally produced an e'Igcn-oni'c Version of the smail on NOVembel‘ 3; 2020'. When {presented my forensic experg-with [he clg‘ctrp‘nip file, $\ng to]d“the.only. Way tc) identify thesendc’r wouldb'e't'o subptyena Google for identifiihgfiinférmation. I un’derstand‘an'othen xforcjnsic-expert with‘ whgm m)?.c0un$el spoke said'the same thing. Idccl‘ar'eiunder penalty ofpe‘tjury under the Illa’wrs/of the state-df Califomxsa‘rand NEW York 'thatIhe aBovc'ié tme‘an‘dflcqurate. Signed this day, Decembér 242.2020 i'n New York, New York. 1 Daéusygm py: «cxi-n-nrntr-na Huhter' Bouchzird . , l4 Tlaimiff‘s Ex Part; Application qu Early DiSwVery ,Case N9. 200673485 COWKIOUU'ln-meD-I NNNNNNNNNr-‘b-‘I-‘I-lI-IH-Ap-Ap-np-a m‘dmo'lbbWNHOCDm‘qmmvmeI-io DECLARATION OF REBECCA NELL KAUFMAN I. My name is Rebecca Nell Kaufman. counsel of record for plaintiff Hunter Bouchard (“Plaintiff”) in this action and licensed t0 practice before all courts in California. 1am over 18 years 0f age. Imake this declaration in support 0f Plaintiff’s Ex Parte Application for Early Discovery. I could and would testify under oath t0 the following: 2. In an effort t0 identify the person who sent an anonymous email t0 Plaintiff's employer Validose, I enlisted the help 0f a forensic expert who informed me that even the electronic version 0f the email would not lead us to the sender’s IP address. Instead, my forensic expert explained, Plaintiff would need t0 subpoena records from Google t0 learn the sender’s IP address. I understand from Plaintiff that the forensic expert with Whom he spoke before retaining our firm made similar statements. Moreover, our firm’s forensic expert recently explained that Google deletes information related t0 terminated Gmail accounts six months after termination. Attached as Exhibit A is a true and correct version 0f the subpoena this firm intends t0 serve on Google with this Court's [Proposed] Order. 3. Pursuant t0 California Rule of Court 3.1204 (b) (2), I caused an email t0 be sent 0n January 5, 2021 t0 flghtingracism20@gmail.com, which informed the reaipient of this expan‘e application. including a copy 0f Lhe Complaint and these unsigned moving papers. Exhibit B is a true and correct copy 0f the email I caused t0 be sent t0 fightingracism20@gmail.com. Other than sending an email to the pseudonymous Gmajl account, Ihad n0 other way t0 contact the sender. T0 date, I have not received a response from fightingracism20@gmafl.com. I declare under penalty 0f perjury under the laws 0f the state 0f California that the above is tme and accurate. Signed this day, January 6. 2021 in Beverly Hills, California.@vam ,4 Rebecca Nell Kaufman 15 Plaintiff's Ex Pane Application for Early Discovery Case No. 20CV373485 EXHIBIT A (t0 DeclaIation 0f Rebecca Nell Kaufman) A SUBP-m o ' AWORNEY 0R PARTY WTHOUT ATTORNEY (Name. SIM: Barmbenmd ' ‘ ‘ Daniel J Be’r'géson ($3M 105439) Rebecca N. Kaiufman (SEN 199534) ‘0””WU”W“ BERGESON LLP 111 N Mafkét Street. Suite 600. San Jose. CA 95113 315%an up: (408) 291 ~6200 FAX M03 (403) Zéf‘mm EMQLAGQRESS: manman@be-law.corn ATr'omJEV FOR {him}: Plaintiff Hun'ter Boudiard SUPERIOR COURT 0F CALJFORNLA, COUNTY OF SANTA CLARA smaawnas’sa 191 North First Street San Jose CA 95113 wunewmess. 191 North First Streét San J_o'se, CA 951 13 cm mom: cob: San Jose 95113WHWE Downtown Superior Court (DTS) PLAINIIFEIFETITIONER: Hunter_Bouchard DEFENQANT/ ?ESPONDENT; Due Defendams 1-10 CASE MEMBER DEPOSITIQN SUBPOENA 200573485 FOR PRODUCTION 0F BUSINESS RECORDS THE PEOPLE 0F THE STATE OF CALIFORNIA, TO name, address, and tele hone number of deponent, if known): Google LLC c/o Corporation Service Company 2710 ateway Oaks Dr, Suite ‘1 ON Sacramento: CA 95833 1. YOU ARE ORDERED TO PROQUCE THE BUSINESS RECORDS described ln Item 3, a5.follows. To (name of deposition'officer): RebecCa N. Kaufman On (dare) : ' At (time): Locatiqn (address): 9350 Wilshire Bivpgsmte 206. Bever1y Hilts.‘CA £90212 Do not release the‘ requested records to the depositionofficér prior to the date and time stated above a E by delivering a true. legible and durable copy of the business records described In item 3 enclo'sed in a s'eale'd Inner wrapper mm the title and number o'fthe action n'arn’e ofwitness. and date of subpo'ena cIe'arly written on iL The Inner Wrapper shall then‘be enclosed m an outer enveIope or Wrapper. sealed and mane'd to the deposition officer at the address In item 1 b. E by delivering a true. legible. and durable copy of the business records described In item 3 to the deposition officer at the witness‘s address on rec_elpt of payment In cash or by check Of the re'ason'able costs of preparing the copy, as determined under Evidence Code section 1563(b). c D by making the original business rec'ords described In item 3 available for inspedion at your business address by th'e attorneys representative and permming copying at your business address under reasbnabie conditions during normal business hours 2. The recdrds are to be produced by the dare and time shown in item 1 (bu! no! sooner than 20 days after the Issuance of the deposition subpoena, or 15 days after service whichever daze Is rarer) Reasonable costs of locating records, making them available.nrcopying them and postage if any. are mcbverable as set forth In Evidence Code section 1563(5) 'Ihe records shall be accompaniedby an affidavit of (he custodian or oth'er qualified wr‘mess pursuant to Evidence Code secrian 1561 3. Th'e records to be produced are described as follows (if eléctronically stored mformabon is demanded the form or forms In which each rype of infomiation is (o be produced maybe specified): E Continued on Attachment 3. 4. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA A_S 'A CUSTQDIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER CODE OF CEVIL PROCEDURE SECTION 1985.3 0R 1985.6 AND A MOTION TO QUASH 0R AN OBJECTION HAS BEEN SERVED 0N YOU A COURT ORDER _0R AGREEMENTJOF THE PARTIES, WITNESSES, AND CONSUMER 0R EMPLOYEE AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED T0 PRODUCE CONSUMER OR EMPLOYEE RECORDS. DISOBEDIENCEOF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO B_E LIABLFI FOR THE SUM 0F FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY Date issued: RebetcaN. Kaufman b ' (type 0R 9mm mus) (3:5me o: PERSON assume Suapoam (TITLE) (Proof of servité on reverse). ‘Pago 1 oi 2' ‘memmmflflfi DEPOSITION SUBPQENA FOR PRODUCTION tm°"””“Wfifi‘éfiéfifii SUBP-O‘lOWevaam-y-tNW] 0F BUSINESS REcoRDS wgqimmcagov .su‘e‘mmo: PLAINfiFFPEHTIONER: Hunter Bouchard casemuse» DEFENDANTIRESPQ'NDENT: Doe Derghdants.1-1o 2001373485 PROOF OF SERVICE OF DEPOSITION SUBPOENA F_OR PRODUCTION OF BUSINESS RECORDS '1. l se’lrvea this Dépas'ifion 'SLgbpoehg {qr Production QfBusiness Records by p'erspnal‘lyld‘eliv'erin’g a'co’p‘yvtiol the person sérVéd .a‘s foklows; a.: ParsonSer‘yed (naive): b. Address where served: c‘ ‘Dage'of delivery: d. Tnme bfdeiivery: e‘ (‘1)-- Wmess fees were paid. Amount .............. 3 (2)a Copying fees were paid a Amount .............. f,- Feefg'zrvseniioe: ...... , ..... ,. . . S 2. l‘recé'rved this subpoena’for seryice on (date): SI P'ersoh/Se/rving: a E Not a registered California process server b a California sh‘en’ff or marshal c. D Régistered California procesg server! d‘ E ‘ Employee orindependent contractor of a‘r'égistered Califomi'a‘prooe'ss server, e.‘ D Exempt from regigtration under Business and Professions que section;22350(b‘). f E Registered prbfessiqnal phbtocopier. g. ‘E EX‘ernpt from regisjratibn under Business and P‘rofessjoiris Cp'devse'c't'ién 22451, h.) Ngme. address, iélebhone nymbér, and; if applipa'pie; county _of registrafion and number. l'deplare' under penalty of perjury und'er the |a"ws of ihe’State pf (Fm? Calijrr'Ii‘a’sfi‘eijiff'o‘r marshal, use only) CalEfornia {fiat the foregoing is true and‘ébrrect l certify that‘the foregoing is'tm'e and cof_rect. Date: Date: > > (SIGNATURE) (ssQNArpge; SUBM‘M’RBY'mmm‘” DEPosmoN suBPOENA FOR PRODUCTION ”8”“ 0F BUSINESS RECORDS . ‘ Wm.-___,_ww.-m,v K. w BOUChard v. Dée Déféfidafig 1‘-10 Case N6. 20CV373485 .Attachmept 3 1.‘ Documents and/pr cl_ectronigallynstored infomatibfgSufiigiqr’gt to identify the owhefls) andlor operator(s) ofthe foilo’xiring email 'ac‘coung includin‘gran'y asso¢iat§d perSOHal information, buéiness infonnation, ~addfesses, email addresses, phone'numbers, fax numbers; payment information, Internet Prototol (“JP”) addre‘sSes! Media Access Control “(‘fMAC”) address(es), and/o: intemational ,mobiiezequipment-'identity (“IMEVJ-numbams): a‘: fightingracism20@ghiéil.cofi1. The subpoena requests documents in your possession, custody, or‘cohtrol and includes any an‘d all archived data or lags.- "_Docume'i1t(s)" she??? mea‘fz aliwritir’z'gs wider‘Cal. Ei‘id. Codé §230in Whatgveréfbrm or? medium, including elécif'oizg'cglly qtoreéfz‘gyf'qr‘mation._ The subpoenaseéksdbcumeifis wizhihyaw possession, custody, Qf'conrrol. 77w subpoe‘riqspecgfzfcaily excludes any coénfigiinicqtions, gonte'nrs ofa userk‘privafe mail;messagesi 0r stored jcontentfile‘s heid‘ér‘maingaingdlgn behalfbf a user that areprolecre‘d by rheSrorea' Communications Act, 18 US. C. §2 701,- el seq. EXHIBIT B (t0 Declaration 0f Rebecca Nell Kaufman) Andrew Bilson From: Sent: To: Subject: Attachments: Andrew Bilson Tuesday, January 05, 2021 10:44 AM 'fightingracism20©gmail.com' Bouchard v. Doe Defendants 1-10 20-11-13 - [FILED] Complaint for Defamation Per Se.pdf; 21-1-5 (service) Motion to Take Early Discoverypdfi 21-1 -5 Proposed Order Cvr.pdf; 21-1-5 Proposed Order to Take Early Discovery.doc>c 21-1-5 Proposed Order t0 Take Early Discoverypdf Please be advised that this firm will be moving the Superior Court of the State of California in the County ofSanta Clara to take early discovery in the case filed against the Doe Defendant in the action Bouchard v. Doe Defendants, Case No. 20CV373485. Ex parte papers (unsigned versions attached, along with the proposed subpoena t0 GoogIe) will be filed on January 7, 2021 by 9:00 a.m., t0 be presented on January 8, 2021 at 9:00 a.m., and no hearing is requested. This email will serve as Exhibit B t0 the Declaration of Rebecca Nell Kaufman. Also, attached is the Complaint filed in this action on November 13, 2020. We apologize for the changing dates-the Covid pandemic and ever-changing rules have made filing ex parte applications difficult. Andrew Bilson | Bergesonhg Office Administrator Legal Secretary O 310.846.5257 | D 310.566.5993I F 310.432.5172 Silicon Valley Office | San Francisco Office | Beverly Hills Office nggite | vCard | Email | fl | Disclaimer