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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
1
MICHAEL M. BARANOV - Bar No. 145137
BARANOV & WITTENBERG, LLP
1901 Avenue of the Stars, Suite 1750
Los Angeles, California 90067
Tel: (310) 229-3500
E-mail: mbaranov@mbgwlaw.com
Attorneys for Defendants, MICHAEL HUNTER GRAY and LASHA
EFREMIDZE
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
CALENDAR RESEARCH, LLC, a
Delaware limited liability company,
Plaintiff,
-vs-
MICHAEL HUNTER GRAY, an
individual, STUBHUB, INC., a
Delaware corporation; EBAY, INC., a
Delaware corporation; LISA
DUSSEAULT, an individual; LASHA
EFREMIDZE, an individual; and
DOES 1-5, inclusive,
Defendants.
Case No. 2:17-cv-04062 SVW-SS
Hon. Stephen V. Wilson
DEFENDANTS MICHAEL
HUNTER GRAY AND LASHA
EFREMIDZE’S OPPOSITION TO
PLAINTIFF CALENDAR
RESEARCH, LLC’S EX PARTE
APPLICATION TO SHORTEN
TIME ON ITS MOTION TO
NARROWLY REOPEN
DISCOVERY AND FOR
EVIDENTIARY SANCTIONS;
MEMORANDUM OF POINTS
AND AUTHORITIES AND
DECLARATION OF MICHAEL
M. BARANOV IN SUPPORT
THEREOF
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
Defendants, MICHAEL HUNTER GRAY and LASHA EFREMIDZE,
hereby submit the following Memorandum of Points and Authorities and
Declaration of Michael M. Baranov in opposition to Plaintiff Calendar Research
Case 2:17-cv-04062-SVW-SS Document 234 Filed 01/23/19 Page 1 of 13 Page ID #:9232
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
2
LLC’s (“Calendar”) Ex Parte Application to shorten time on Motion to Narrowly
Reopen Discovery or in the Alternative for Sanctions1:
1 Defendants Gray and Efremidze will submit a more complete opposition to Plaintiff’s Motion,
should ex parte application be granted.
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
3
MEMORANDUM OF POINTS AND AUTHORITIES
1. NO GOOD CAUSE EXISTS FOR EX PARTE RELIEF
Calendar’s ex parte application to shorten time on motion to narrowly
reopen discovery or in the alternative for evidentiary sanctions is both procedurally
and factually flawed. There is no good cause to shorten time on any motion to
reopen discovery. Calendar waited for over three years since this suit commenced
in 2015 to propound any discovery to defendants and cannot in good faith claim
after the most recent discovery cut-off that there are exigent circumstances to
warrant ex parte relief.
In addition, Calendar already took the depositions of Efremidze and Gray,
respectively on January 5 and January 7, 2019, weeks after their initial written
responses to the document requests were served and after Gray produced all of his
responsive documents. Calendar could have questioned both of these defendants
about their responses and document productions but chose not to do so. This is yet
another reason to deny ex parte relief.
But most importantly, as will be shown in more detail in these defendants’
opposition to Calendar’s motion, should this application be granted, none of
Calendar’s vague factual assertions of supposed discovery violations has any merit.
On the contrary, as is evident in defendants’ responses and the e-mail
communications attached to Calendar’s own application, defendants have fully and
diligently complied with their discovery obligations. Defendant Gray has
produced all responsive documents to Calendar’s requests. Per Magistrate Judge
Segal’s order of December 28, 2018, defendant Gray also timely served
supplemental responses, attesting that not only have all responsive documents been
produced but that no responsive documents were withheld on the basis of privilege.
Defendants also supplemented several of their initial responses, pursuant to the
guidance offered in Magistrate Judge Segal’s order and defendant Gray produced
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
4
additional responsive documents. The documents were processed by Gray’s e-
discovery vendor and were bates stamped and marked confidential. To the extent
technically possible, the documents were made searchable. (Baranov Decl. ¶5-11.)
Significantly, Calaborate has had all of these documents all along, since before suit
was filed. (Baranov Decl. ¶9.) Thus, Gray has fully complied with his discovery
obligations. Plaintiff does not present any evidence, other its conjecture, that this
is not the case.
Defendant Efremidze twice attested that he had no responsive documents in
his custody, possession and control, after a diligent search and a reasonable
inquiry. All such documents remained under control of his former employers,
Calaborate and StubHub. (Baranov Decl. ¶12.) He cannot be compelled to
produce what he does not have. Thus, Calaborate has failed to demonstrate any
good cause for ex parte relief.
2. PLAINTIFF HAS ENGAGED IN DELAYING TACTICS IN
BRINGING THE INSTANT MOOT APPLICATION
A. Calendar Has Failed To Conduct Discovery For Nearly Three Years
On November 11, 2015, Calendar commenced in state court this action
against Defendant Michael Hunter Gray (“Gray”), alleging that Gray
misappropriated trade secrets from Calendar’s predecessor-in-interest, Calaborate,
Inc., when Gray left his position as CEO of Calaborate to work for Defendant
StubHub, Inc. (Complaint [ECF No. 1, Ex. 1].)
On May 16, 2017, filed a Third Amended Complaint, for the first time
naming Dusseault as a defendant, and also naming Defendants eBay, Inc.
(“eBay”), StubHub, Inc. (“StubHub”), and Lasha Efremidze (“Efremidze”). In the
intervening time, Calendar did not propound any discovery. On May 31, 2017,
StubHub removed the action to this Court. (Notice of Removal [ECF No. 1].)
Again, no discovery was propounded by plaintiff. (Baranov Decl. ¶3.)
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
5
On August 14, 2017, the Court issued a stay as to most discovery in the
action. (Order [ECF No. 46].)
On August 7, 2018, the Court granted StubHub’s motion for partial
summary judgment and lifted the stay as to discovery relevant to Phase II of the
action, which is the relevant portion of the action pending now. (Order [ECF No.
160].)
On October 17, 2018, nearly three years after suit was filed, Calendar
propounded the thirty three requests for production at issue to Gray and Efremidze,
as well as to co-defendant Dusseault. Many of the requests are overly broad,
vague and exceed the scope of discovery relevant to Phase II of the action. On
November 16, 2018, Gray and Efremidze timely responded to the requests,
asserting objections Gray and Efremidze objected to eight of the requests. Gray
agreed to produce documents responsive to another eight of the requests and, after
a diligent search and a reasonable inquiry, was not able to find documents
responsive to the remaining seventeen requests. Thereafter, on January 4, 2019,
both Gray and Efremidze served their supplemental responses, an withdrew
objections to four of the requests. (Baranov Decl. ¶5-11.) Efremidze was not able
to find documents responsive to the remaining twenty nine requests, for reasons
described in the Baranov Declaration. (Baranov Decl. ¶12.)
B. Calendar Failed to Meet and Confer Pursuant to Local Rule 37
On January 21, 2019, counsel for Calendar and counsel for Gray and
Efremidze conducted a telephonic meet and confer session regarding issues that
Calendar raised as to these individual defendants. Counsel for Calendar was
informed that Gray has produced all responsive documents in his custody,
possession and control. Counsel for Gray and Efremidze also requested that the
parties conduct an informal discovery conference with Magistrate Judge Segal.
Counsel for plaintiff refused. (Baranov Decl. ¶13.)
Instead, the following morning, Calendar filed the instant application,
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
6
claiming that Gray and Efremidze were withholding documents and that Gray’s
document production was not were not formatted properly. As outlined in the
Baranov Declaration, this is not the case. (Baranov Decl. 11.) As is further
evident form the exhibits to Calendar’s motion, Efremidze has conducted a diligent
search and a reasonable inquiry and was not able to locate any responsive
documents. It is this simple.
C. Calendar Is Attempted to Harass and Overwhelm Defendants and to
Cause Further Delay
The parties must file their respective motions for summary judgment by
February 1, 2019. Even if the ex parte application and motion are both granted,
insufficient time would remain for any meaningful compliance prior to this
deadline. In addition, the numerous attorneys for plaintiff are fully aware that this
counsel is the sole attorney working on behalf of defendants Gray and Efremidze.
They also have been advised that this counsel is engaged in a trial in the Los
Angeles County Superior Court. The timing of plaintiff’s request, nearly three
weeks after receipt of the documents in question, made on the eve of the summary
judgment, indicates that instead of any legitimate purpose, plaintiff is creating a
basis to request yet another continuance.
3. THESE DEFENDANTS HAVE BEEN WORKING DILIGENTLY
ON THEIR DISCOVERY RESPONSES
These defendants answered twenty five of the thirty three requests. After a
diligent search, Gray was able to locate documents responsive to eight of the
requests (Requests Nos. 14, 15, 18-24) and has turned them over to his e-discovery
provider, that is processing the documents for production. The documents have
been produced. He objected to eight of the requests (Requests Nos. 11, 12, 21, 30,
37-39). He stated that after a diligent search and a reasonable inquiry, he was not
able to find documents responsive to seventeen of the requests (Requests Nos. 13,
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
7
16, 17, 26-29, 31-36, 40-43). Efremidze objected to the same eight requests and,
after a diligent search and a reasonable inquiry, was not able to locate any
responsive documents. (Baranov Decl. ¶4.) Subsequently, both parties withdrew
their objections to four of the requests (Requests Nos. 11, 12, 30 and 38) and Gray
produced additional responsive documents the following day. There is no basis for
Calendar’s claim of any bad faith or for its requests for crippling evidentiary
sanctions. This is yet another reason why any ex parte relief is not warranted.
4. CONCLUSION
Three years have gone by since this litigation commenced. Venue has been
changed. Parties have been added. But as time progresses, it becomes evident that
Calendar’s case has no merit. In order to create a distraction and delay the
inevitable, Calendar has resorted to barrage defendants with baseless, frivolous
motions, during the time it knows that defense counsel is engaged in trial in
another matter.
There is no good cause justifying ex parte application to shorten time on any
motion to reopen discovery. The issues should have been addressed months ago.
Calendar also had ample opportunity to question both defendants during their
depositions two weeks ago. Moreover, as will be described in greater detail in
defendants’ opposition to the motion, should this application be granted, the relief
Calendar seeks, as far as defendants are able to understand it, is moot. Gray has
produced all of the responsive documents in an appropriate format. Moreover,
Calendar has had originals of these documents in its possession for nearly four
years. Efremidze twice stated in his responses that he conducted a diligent search
and a reasonable inquiry and was not able to locate any responsive documents.
There is no basis for Calendar’s ex parte application nor its motion to reopen
discovery since there is nothing more to discover.
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
8
It is respectfully requested that Calendar’s ex parte application be denied.
DATED: January 23, 2018 BARANOV & WITTENBERG, LLP
By: /S/ Michael M. Baranov
MICHAEL M. BARANOV
Attorneys for Defendants, MICHAEL
HUNTER GRAY and LASHA
EFREMIDZE
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
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DECLARATION OF MICHAEL M. BARANOV
I, MICHAEL M. BARANOV, declare and state and follows:
1. I am an attorney at law duly licensed to practice before this court. I am
the principal of the firm of Baranov & Wittenberg, LLP, attorneys of
record for defendants Michael Hunter Gray and Lasha Efremidze. I have
personal knowledge of all the facts set forth herein and, if called upon,
could and would testify thereto.
2. On November 11, 2015, Calendar filed this action against Defendant
Michael Hunter Gray (“Gray”), alleging that Gray misappropriated trade
secrets from Calendar’s predecessor-in-interest, Calaborate, Inc., when
Gray left his position as CEO of Calaborate to work for Defendant
StubHub, Inc. (Complaint [ECF No. 1, Ex. 1].)
3. On May 16, 2017, filed a Third Amended Complaint, naming Lisa
Dusseault as a defendant, and also naming Defendants eBay, Inc.
(“eBay”), StubHub, Inc. (“StubHub”), and Lasha Efremidze
(“Efremidze”). On May 31, 2017, StubHub removed the action to this
Court. (Notice of Removal [ECF No. 1].) On August 14, 2017, the
Court issued a stay as to most discovery in the action. (Order [ECF No.
46].) During this period, no discovery was propounded to Gray and
Efremidze. On August 7, 2018, the Court granted StubHub’s motion for
partial summary judgment and lifted the stay as to discovery relevant to
Phase II of the action, which is the relevant portion of the action pending
now. (Order [ECF No. 160].)
4. On October 17, 2018, Calendar propounded the thirty three requests for
production at issue to Gray and Efremidze. On November 16, 2018,
Gray and Efremidze timely responded to the requests. These defendants
answered twenty five of the thirty three requests. After a diligent search,
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
10
Gray was able to locate documents responsive to eight of the requests
(Requests Nos. 14, 15, 18-24) and has turned them over to his e-
discovery provider, that is processing the documents for production. He
objected to eight of the requests (Requests Nos. 11, 12, 21, 30, 37-39).
He stated that after a diligent search and a reasonable inquiry, he was not
able to find documents responsive to seventeen of the requests (Requests
Nos. 13, 16, 17, 26-29, 31-36, 40-43). Efremidze objected to the same
eight requests and, after a diligent search and a reasonable inquiry, was
not able to locate any responsive documents.
5. On December 28, 2018, Magistrate Judge Segal issued an order granting
in part and denying in part Calaborate’s motion to compel. Defendants
fully complied with the order. Gray timely produced all responsive
documents in his custody, possession and control. Gray and Efremidze
also served their supplemental responses to the requests for production.
In view of Magistrate Judge Segal’s order, I provided responses to four
of the requests which originally were objected to. I agreed to produce
documents responsive to request no. 38 to Gray and produced responsive
documents the following day. Efremidze could not locate any additional
responsive documents. I was then notified that certain attachments to the
supplemental production were missing. A search for the attachments was
immediately conducted and they were produced two days later.
6. On Saturday, January 5, 2019, Calaborate took the deposition of
Efremidze. To the best of my recollection, no questions regarding his
responses to the requests for production or efforts made by him to locate
responsive documents were asked.
7. On Monday, January 7, 2019, Calaborate took the deposition of Gray.
To the best of my recollection, no questions regarding his responses to
the requests for production, his document productions, or efforts made by
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
11
him to locate responsive documents were asked.
8. On January 21, 2019, I participated in a meet and confer telephone call
with three of plaintiff’s counsel, regarding issues that Calendar raised
Gray and Efremidze’s document productions. Counsel Conor
McDonough told me that the documents produced were not in a tiff
format and, as such, not all of them were searchable. Counsel insisted
that there was no time for any further discussions and that all
supplemental and reformatted documents be produced as requested in his
earlier e-mail by tomorrow. As I advised counsel previously, the
documents were produced and processed by defendants’ e-discovery
vendor, Xact Data Discovery, with as much detail as was technically
possible. The files that can be searchable are searchable. The files which
cannot be searched because of their formats, either as a picture or a graph
for instance, cannot be searched. I also advised counsel that I had a short
trial starting January 22, 2019, which is still ongoing in Department 61 of
the Los Angeles County Superior Court.
9. During our conversation, I told counsel(like I did in my earlier e-mails to
him), that this supposed dispute is moot as a practical matter since
plaintiff has had the bulk of documents produced by Gray since Gray left
Calaborate in 2015. The documents consist of Gray’s DropBox files and
e-mails in his calaborate.com account. As Gray testified during his
deposition, they were copied by him concurrently with his departure from
Calaborate in order to preserve evidence for possible litigation. They
have not been accessed by anyone until they were produced. I offered to
provide counsel with a log-in sheet for the accounts, showing that there
has not been any access -- and therefore no changes -- to these documents
since 2015. Consequently, plaintiff has had each and every one of these
documents, in their original format and location, for nearly four years and
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
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had ample opportunity to study them. Counsel refused my reasonable
offer.
10. I told counsel that the additional 25 e-mails, produced on January 5,
2018, after I voluntarily withdrew objections to several of the requests in
my supplemental responses to the request for production, were turned
over to him as pdfs in order to expedite production. I asked what could
be done to these documents to address his concerns. No response was
provided. Insofar as the attachments to these e-mails, a diligent search
was performed and all attachments turned over to counsel in native
format within two business days of his request. Counsel stated that due
to the formatting of the documents, he could bit determine which of the
attachments goes with which e-mail. However, since the e-mails have
file names for the attachments contained in them and there are only
approximately 25 of them in any event, this is not the case. Nevertheless,
in the spirit of cooperation, I proposed to provide counsel with a chart,
showing the e-mails to which the attachments belong. Counsel declined.
11. Finally, counsel stated that he did not believe that there were no
responsive documents in Gray’s simplegray@gmail.com account or in
Efremidze’s accounts. I told counsel that diligent searches were
performed by both defendants and no such documents were discovered.
12. I reminded counsel that Lasha was an iOS programmer and was not an
officer, director or shareholder of Calaborate. He did not participate in
the foreclosure of Calaborate. He did not participate in any of the
business discussions with StubHub pertaining to the possible Klutch
acquisition. He also lost access to his accounts at Calaborate and
StubHub once he left his employment there. I reiterated that Gray has
turned over all responsive documents in our custody, possession and
control and to the best of my knowledge there were no responsive
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DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S MOTION EX PARTE APPLICATION
TO SHORTEN TIME ON ITS MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR
SANCTIONS
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documents on his personal simplegray@gmail.com account. I asked
counsel to share any information to the contrary with me so that we could
possibly conduct another search based on it. Counsel declined, stating
that this cannot be done by the next day.
13. I then suggested that we have a call with Magistrate Judge
Segal. Counsel refused, stating that since discovery has closed,
Magistrate Judge Segal may not have jurisdiction to hear this dispute.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed this 23rd day of January 2019 at Los Angeles, California.
/S/ Michael M. Baranov
Michael M. Baranov
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