Calendar Research LLC v. StubHub, Inc. et alMEMORANDUM in Opposition to MOTION to Compel Additional Discovery or in the Alternative for Evidentiary Sanctions 252C.D. Cal.February 14, 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 COMPEL ADDITIONAL DISCOVERY OR IN THE ALTERNATIVE FOR EVIDENTIARY 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 COMPEL ADDITIONAL DISCOVERY OR IN THE ALTERNATIVE FOR EVIDENTIARY SANCTIONS Hon. Suzanne H. Segal Case 2:17-cv-04062-SVW-SS Document 256 Filed 02/14/19 Page 1 of 4 Page ID #:9856 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 COMPEL ADDITIONAL DISCOVERY OR IN THE ALTERNATIVE FOR EVIDENTIARY SANCTIONS Defendants StubHub, Inc. (“StubHub”) and eBay Inc. (“eBay”) respectfully submit this opposition to Plaintiff Calendar Research’s Motion to Compel Additional Discovery or in the Alternative for Evidentiary Sanctions (“Motion”). Plaintiff has once again requested the same inappropriate relief that it did in its motion to reopen discovery (Dkt. 232-1), relief that Judge Wilson has already declined to give. Dkt. 249 (denying request for adverse inferences). Plaintiff has asked the Court, as an alternative to compelling 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. 252-1 at 20. And in a footnote, Plaintiff states that “[i]n the alternative, Plaintiff requests that the Court order that this list be taken as established.” Id. These requests are problematic on several levels. First, it is again unclear what Plaintiff is actually seeking. Plaintiff has not clarified whether it is asking for an adverse inference instruction to be given by the jury, to be drawn by the Court, or some other request. 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. Feb. 13, 2007) (denying orders since “the requested relief is unworkable because it is too vague and overbroad”). Second, Plaintiff’s requested 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 Case 2:17-cv-04062-SVW-SS Document 256 Filed 02/14/19 Page 2 of 4 Page ID #:9857 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 COMPEL ADDITIONAL DISCOVERY OR IN THE ALTERNATIVE FOR EVIDENTIARY SANCTIONS 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 unfairly and prejudice StubHub and eBay, who are not alleged to have done anything wrong in the motion.1 To remedy the above issues, 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 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. Dkt. 245-1 ¶ 7. Case 2:17-cv-04062-SVW-SS Document 256 Filed 02/14/19 Page 3 of 4 Page ID #:9858 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 COMPEL ADDITIONAL DISCOVERY OR IN THE ALTERNATIVE FOR EVIDENTIARY SANCTIONS 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). Finally, Plaintiff’s request for evidentiary sanctions is premature. Judge Wilson reopened discovery precisely to allow “Plaintiff to seek any outstanding responsive and non-privileged documents from Defendants Gray and Efremidze.” Dkt. 249. Judge Wilson “decline[d] to compel particular discovery from Gray and Efremidze as Plaintiff requests” and directed “any disputes regarding the content or form of prior or future discovery [to] be addressed to Magistrate Judge Segal during the reopening of discovery.” Dkt. 249 at 1. Currently, the only issue that requires apparent resolution is a deadline for the production of documents. The alternative request for adverse inferences is inappropriate at this time, especially given the highly prejudicial nature of such an order. In sum, Plaintiff’s requested alternative relief should be denied because it would create significant unfair, spillover prejudice to StubHub and eBay, complicate the case dramatically to try to address that prejudice, and is premature. DATED: February 14, 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 256 Filed 02/14/19 Page 4 of 4 Page ID #:9859
