Calendar Research LLC v. StubHub, Inc. et alMEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Extend Discovery Cut-Off Date to 1/31/2019 232C.D. Cal.January 28, 20191 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:17-cv-04062-SVW-SS DEFENDANTS’ OPPOSITION TO PLAINTIFF ‘S MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS QUINN EMANUEL URQUHART & SULLIVAN, LLP David M. Grable (Bar No. 237765) davegrable@quinnemanuel.com Samuel A. Jacobs (Bar No. 315265) samjacobs@quinnemanuel.com Jocelyn Ma (Bar No. 319878) jocelynma@quinnemanuel.com 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 Attorneys for Defendants StubHub, Inc. and eBay Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION CALENDAR RESEARCH LLC, a Delaware limited liability company, Plaintiff, v. MICHAEL HUNTER GRAY, et al., Defendants. CASE NO. 2:17-cv-04062-SVW-SS DEFENDANTS STUBHUB, INC. AND EBAY INC.’S OPPOSITION TO PLAINTIFF CALENDAR RESEARCH’S MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS Hon. Stephen V. Wilson Case 2:17-cv-04062-SVW-SS Document 245 Filed 01/28/19 Page 1 of 5 Page ID #:9322 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Case No. 2:17-cv-04062-SVW-SS DEFENDANTS’ OPPOSITION TO PLAINTIFF ‘S MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS Defendants StubHub, Inc. (“StubHub”) and eBay Inc. (“eBay”) respectfully submit this opposition to Plaintiff’s Motion to Narrowly Reopen Discovery or in the Alternative For Sanctions (“Motion”). I. THE MOTION SHOULD BE DENIED FOR THE REASONS PROFFERED ALREADY. As a preliminary matter, StubHub and eBay incorporate by reference the arguments made it is Opposition to the ex parte application filed on January 23, 2019 (Dkt. 235) as reasons for denying the Motion - including that Plaintiff was not diligent in discovery. II. THE REQUESTED ALTERNATIVE RELIEF (SANCTIONS) SHOULD BE DENIED FOR VARIOUS REASONS. In addition, Plaintiff’s requested alternative relief is inappropriate, and highly and unfairly prejudicial to StubHub and eBay. Plaintiff has asked the Court, as an alternative to granting additional discovery, to order “the following adverse inferences that the documents withheld by Defendants would have shown that: Efremidze and Gray formed a conspiracy to violate the Defend Trade Secrets Act and the Computer Fraud and Abuse Act; Efremidze and Gray acquired, used, and disclosed Calaborate’s trade secrets, including the Klutch code, without Calaborate’s authorization, in violation of the Defend Trade Secrets Act; and Efremidze and Gray violated the Computer Fraud and Abuse Act.” Dkt. 232-12 at 2. And in its motion itself, Plaintiff states that “In the alternative, Plaintiff requests that the Court order that this list be taken as established.” Dkt. 232-1 at 24. These requests are problematic on several levels. First, it is unclear what Plaintiff is actually seeking. Is it asking for an adverse inference instruction to the jury? An adverse inference to be drawn by the Court? Something else? A request for relief that is too vague should be denied on that basis alone. See Bryant v. Mattel, Inc., 2007 WL 5432961, at *6 (C.D. Cal. Case 2:17-cv-04062-SVW-SS Document 245 Filed 01/28/19 Page 2 of 5 Page ID #:9323 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Case No. 2:17-cv-04062-SVW-SS DEFENDANTS’ OPPOSITION TO PLAINTIFF ‘S MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS Feb. 13, 2007) (denying orders since “the requested relief is unworkable because it is too vague and overbroad”). Second, Plaintiff’s request relief is fundamentally unfair. Should StubHub and eBay’s summary judgment motion be denied, granting Plaintiff’s requested relief could be taken as tantamount to finding that StubHub and eBay are liable when the case is tried. Notably, Plaintiff alleges that StubHub and eBay engaged in a conspiracy with Gray and Efremidze to commit both trade secret misappropriation and violations under the Computer Fraud and Abuse Act (“CFAA”). See, e.g., Dkt. 181 ¶¶ 117, 142. Two of the instructions Plaintiff seeks are that (1) Efremidze and Gray formed a conspiracy to violate the Defend Trade Secrets Act and the Computer Fraud and Abuse Act and (2) Efremidze and Gray acquired, used, and disclosed Calaborate’s trade secrets, including the Klutch code, without Calaborate’s authorization, in violation of the Defend Trade Secrets Act (“DTSA”). Given that an element of civil conspiracy is the formation of the conspiracy, or “an agreement to commit wrongful acts,” Sporting Supplies Int’l, Inc. v. Tulammo USA, Inc., No. SACV 10-1338-AG (RNBx), 2011 WL 13135282, at *3 (C.D. Cal. Jan. 3, 2011) (emphasis added), an adverse inference against Defendants Gray and Efremidze would necessarily implicate StubHub and eBay-the entities Plaintiff has alleged were the co-conspirators. E.g., Dkt. 181 ¶ 117 (“Each defendant engaged or participated in a civil conspiracy…in its acts of misappropriation of trade secrets”); id. ¶ 142 (StubHub and eBay benefited from their conspiracy with Gray, Dusseault, and Efremidze to unlawfully access Calaborate assets and accounts”). And a finding that Efremidze and Gray “disclosed” Calaborate trade secrets could unfairly suggest that StubHub and eBay “acquired” such trade secrets. This would materially prejudice StubHub and eBay, who are not alleged to have done anything Case 2:17-cv-04062-SVW-SS Document 245 Filed 01/28/19 Page 3 of 5 Page ID #:9324 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- Case No. 2:17-cv-04062-SVW-SS DEFENDANTS’ OPPOSITION TO PLAINTIFF ‘S MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS wrong in the motion.1 At the very least, there would need to be severance and separate trials in order to avoid undue prejudice and prejudicial spillover. See, e.g., Donato v. Fitzgibbons, 172 F.R.D. 75 (S.D.N.Y. 1997) (granting a motion to sever because no jury instruction could cure the prejudice to the defendant and contamination of the jury’s minds that an adverse inference would cause when the defendant had not been at fault). This would complicate matters and increase inefficiencies, and there would still be risk of unfair prejudice to StubHub and eBay. III. IF THE MOTION IS GRANTED, STUBHUB AND EBAY WILL MAKE REBUTTAL EXPERTS AVAILABLE FOR DEPOSITION DURING THAT PERIOD, AND THE COURT SHOULD SET A BRIEFING SCHEDULE StubHub and eBay are likely to proffer rebuttal experts in connection with their summary judgment motions. Ma Decl. ¶ 3. StubHub and eBay would have done so sooner, but Plaintiff was unwilling to provide its expert reports until four days before the January 11 discovery cutoff. Ma Decl. ¶ 4. StubHub and eBay have been anticipating disclosing and serving their expert reports with their summary judgment motion, and making the experts available for deposition a few days thereafter (similar to Plaintiff, which produced its expert reports 36 hours before its liability expert sat for deposition). Ma Decl. ¶ 5. In light of the pending motion, StubHub and eBay now anticipate providing their expert reports either (1) on February 7, 2019 (30 days from the date Plaintiff provided its reports, in accordance with Federal Rule of Civil Procedure 1 StubHub and eBay have produced over 22,000 documents with the requisite technical information over the course of this litigation and have not been alleged to commit any discovery misconduct in connection with the pending motion. Ma Decl. ¶ 7. Case 2:17-cv-04062-SVW-SS Document 245 Filed 01/28/19 Page 4 of 5 Page ID #:9325 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Case No. 2:17-cv-04062-SVW-SS DEFENDANTS’ OPPOSITION TO PLAINTIFF ‘S MOTION TO NARROWLY REOPEN DISCOVERY OR IN THE ALTERNATIVE FOR SANCTIONS 26(a)(2)(D)(ii)); or (2) with its summary judgment motion, if the Court orders summary judgment motions to be filed sooner than February 7. Ma Decl. ¶ 6. In the case of the former, StubHub and eBay will make those experts available for deposition on February 11 and 12. In the case of the latter, StubHub and eBay will make those experts available for deposition a few days after their reports are served. Id. Finally, should the Court grant the Motion, and should the Court set a briefing schedule on summary judgment motions that extends beyond the default rules, StubHub and eBay respectfully request that the Court grant two weeks for reply. DATED: January 28, 2019 QUINN EMANUEL URQUHART & SULLIVAN, LLP By David M. Grable Attorneys for Defendants StubHub, Inc. and eBay Inc. Case 2:17-cv-04062-SVW-SS Document 245 Filed 01/28/19 Page 5 of 5 Page ID #:9326