Calendar Research LLC v. StubHub, Inc. et al

MEMORANDUM in Opposition to EX PARTE APPLICATION to Shorten Time for Hearing on Motion to Compel Further Discovery

C.D. Cal.Feb 28, 2019

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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 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 COMPEL AND FOR EVIDENTIARY SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF MICHAEL M. BARANOV IN SUPPORT THEREOF DISCOVERY MATTER 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 LLC’s (“Calendar”) Ex Parte Application to shorten time on Motion to Compel 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. Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 1 of 14 Page ID #:10134 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 2 MEMORANDUM OF POINTS AND AUTHORITIES 1. THERE IS NO GOOD CAUSE FOR EX PARTE RELIEF Calendar’s ex parte application to shorten time on A motion to compel and for evidentiary sanctions is moot. There is no good cause to shorten time on any motion to compel because these defendants have produced the entire contents of the Slack account belonging to a non-party, Block & Tackle, Inc., currently available through Slack. Defendants agreed to produce further contents, once Slack grants them access to any further documents. Defendant Efremidze has timely provided a privilege log and when plaintiff complained of its format, provided a supplemental log within two days. See Exhibit “N” to the motion. Equally disingenuous is plaintiff’s claim Gray waived the attorney-client privilege with respect to approximately 30 out of 19,497 documents produced by him which inadvertently slipped through due to the rush of the supplemental production. As discussed at length in the Baranov Declaration, attached hereto, and as will be shown in more detail in these defendants’ opposition to the 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. Calaborate has failed to demonstrate any good cause for ex parte relief and its application should be denied. 2. PROCEDURAL HISTORY 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 Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 2 of 14 Page ID #:10135 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 3 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.) 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. The requests did not contain a list of search terms for e-discovery. In fact, the parties never agreed to any such list, to be used by all parties in their e-discovery searches. As a result, all parties have been conducting electronic discovery based on their interpretation of the requests, rather than following an agreed upon protocol, to insure consistency of results. Many of the requests were 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 Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 3 of 14 Page ID #:10136 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 4 requests. (Baranov Decl. ¶5.) Efremidze was not able to find documents responsive to the remaining twenty nine requests, for reasons described in the Baranov Declaration. (Baranov Decl. ¶5.) Subsequently, on February 1, 2019, Judge Wilson narrowly reopened discovery with respect to Gray and Efremidze, in order for them to look for additional documents. (Baranov Decl. ¶6.) Subsequently, on February 5, 2019, plaintiff agreed to provide these defendants with a list of electronic accounts and repositories to search, as well as with a list of exact terms, connectors and protocols to conduct the searches. (Baranov Decl. Decl. ¶¶7-11.) A stipulation was signed and these defendants fully complied with it. One account was inadvertently omitted by defendant’s vendor, and once this was discovered, was searched and produced to plaintiff. (Baranov Decl. ¶¶14, 17.) Privilege log was timely provided and then supplemented by Efremidze. (Baranov Decl. ¶¶20, 23, Exhibit “E” thereto) Last week, plaintiff demanded production of a Slack messaging account of a non-party California corporation Block & Tackle, Inc., of which Gray was an officer. Defendants agreed to produce the account, even though they disagreed that it was within the scope of the requests and have produced it. (Baranov Decl. ¶¶19-25.) Therefore, all of the relief that Calendar seeks is moot. 3. CALENDAR FAILED TO MEET AND CONFER PRIOR TO BRINGING THE INSTANT APPLICATION Calendar’s application and motion lack any evidence of any attempt to meet and confer with these defendants prior to the filing, as required by Local Rule 37. On the contrary, as is discussed in the Baranov Declaration, Calendar proceeded with its filing after Gray and Efremidze have complied with all substantive relief Calendar seeks. This is yet another reason to deny the application. / / / / / / Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 4 of 14 Page ID #:10137 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 5 4. CALENDAR IS ATTEMPTING TO HARASS AND OVERWHELM DEFENDANTS AND TO CAUSE FURTHER DELAY Defendants must file their respective motions for summary judgment by March 18, 2019. This date was continued from February 1, 2019 by the Calendar. Now, Calendar’s counsel is contriving another discovery dispute in order to delay the inevitable. They provided notice of this application to defense attorney Michael Baranov, counsel for the interested parties last, at 12:02 a.m. today, even though based on their own declaration, they started to provide notice at 5:12 p.m. (Curran Decl., ¶5, Baranov Decl., ¶27, Exhibit “A” thereto.) They made sure that the opposition papers were due on the day they knew defense counsel was occupied all day in a federal matter. (Baranov Decl., ¶27.) Most importantly, they proceeded with their application when they knew that defendants have produced the Slack account and further agreed to produce portions of the Slack account to which defendants do not have access, when such access is received from Slack. (Baranov Decl., ¶¶24-25, Exhibit “E”.) In total disregard of common sense, they ask for defendants to submit their opposition prior to any ruling by the court on the ex parte application, evidencing their intent to create pointless late night work by several counsel. Calendar’s questionable tactics warrant the denial of any discretionary relief. 5. THESE DEFENDANTS HAVE BEEN WORKING DILIGENTLY ON THEIR DISCOVERY RESPONSES AND COMPLIED WITH PLAINTIFF’S DEMANDS These defendants have worked non-stop to review all of the accounts that plaintiff wanted them to review and used two pages of terms and connectors provided by plaintiff, despite the futility of this exercise and its failure to turn up anything of significance. They have agreed to all of plaintiff’s demands and, with the exception of the Efrimidze Hotmail account, which was overlooked by their Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 5 of 14 Page ID #:10138 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 6 vendor, fully complied with the stipulation. On the other hand, plaintiff has proceeded with its moot application and motion, giving notice of both in the middle of the night. Plaintiff’s ex parte application must be denied as moot. 6. CONCLUSION It is respectfully requested that Calendar’s ex parte application be denied. There is no good cause for it. Any motion to compel is moot, since the Slack account has been produced and a further privilege log provided. None of the punitive relief that Calendar seeks is warranted under the circumstances. It is respectfully requested that Calendar’s ex parte application be denied. In the event it is granted, however, it is respectfully requested that any opposition to the motion be due on or before March 4, 2019. DATED: February 28, 2018 BARANOV & WITTENBERG, LLP By: /S/ Michael M. Baranov MICHAEL M. BARANOV Attorneys for Defendants, MICHAEL HUNTER GRAY and LASHA EFREMIDZE Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 6 of 14 Page ID #:10139 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 7 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. Procedural History 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. The requests did not have any search terms for electronic discovery. The parties never agreed on Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 7 of 14 Page ID #:10140 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 8 the search terms to be used in electronic discovery. 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, based on his understanding of the requests, 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, also based on his understanding of the requests, 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. Based on the documents produced, plaintiff then asserted that further production of documents from numerous accounts of both defendants Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 8 of 14 Page ID #:10141 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 9 was warranted. Plaintiff then submitted an application to Judge Wilson, which was granted, to reopen discovery until March 4, 2019, for a limited purpose of obtaining a supplemental document production from Gray and Efremidze. The February 19, 2019 Supplemental Production 7. On February 1, 2019, subsequent to Judge Wilson’s order, I received an e-mail from plaintiff’s counsel requesting that we meet and confer regarding the order on Monday, February 4, 2019. I responded to plaintiff’s counsel that I was having oral surgery that Monday and would not be available. I requested that we meet and confer on February 5, 2019. 8. On February 5, 2019, at 1:30 p.m., I met and conferred with plaintiff’s counsel, consisting of six lawyers. Plaintiff’s counsel told me that they believed that defendants withheld documents from their production. I disagreed, since in my opinion, diligent and reasonable searches for responsive documents were conducted. Indeed, over 200,000 documents were produced. 9. I suggested that the easiest way to resolve this disconnect was for plaintiff to provide me with a list of particular electronic accounts which they thought might contain responsive documents and also to provide me with a list of search terms, connectors and formulas to be used to search the electronic files. I noted that typically this is done at the commencement of suits involving electronic discovery, in order to avoid the situation where we found ourselves, where all parties were conducting electronic discovery based on their interpretation of the requests, rather than following an agreed upon protocol, to insure consistency of results. Plaintiff’s counsel agreed. Plaintiff’s counsel requested that I use outside vendor, XDD to gather the data and then to Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 9 of 14 Page ID #:10142 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 10 search it, and that XDD then provide a declaration of what they had done. I agreed. 10. On February 5, 2019, at 9:33 p.m., I received an e-mail from plaintiff’s counsel, Dan Dubin, listing the accounts plaintiff wanted defendants to search. Mr. Dubin stated that the list of terms would be forthcoming shortly. A true and correct copy of Mr. Dubin’s e-mail to me is attached hereto as Exhibit “B” 11. The following day, February 6, 2019, at 5:03 p.m., Mr. Dubin forwarded to me an e-mail, attaching the list of search terms. True and correct copies of Mr. Dubin’s e-mail and the attached list of terms are attached hereto, respectively, as Exhibits “C” and “D”. After discussing the list of accounts and terms with my clients, the lists were sent in their entirety to XDD. 12. Also on February 6, 2019, plaintiff’s counsel forwarded to me a draft stipulation, confirming our agreement. The stipulation contained a blank space for a deadline for XDD to produce the documents they would collect. I told plaintiff’s counsel that I would sign the stipulation after XDD would provide me with an estimated completion date. I also confirmed in an e-mail that XDD had access to the accounts on February 8, 2019 and were collecting and analyzing the data in them, per plaintiff’s instructions. I continued to contact XDD regarding their efforts continuously. 13. On February 14, 2019, I was told by XDD that they were nearly done. I then contacted plaintiff’s counsel, and we agreed that the supplemental documents would be produced on or before February 19, 2019 and then I would provide XDD’s declaration and a privilege log on February 22, 2019. I believed that this schedule would allow me time to review the production for privilege and produce the documents on or before Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 10 of 14 Page ID #:10143 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 11 February 19, 2019. 14. Regrettably, as is stated in the declaration of XDD’s Vice President William Anderson, attached as Exhibit “L” to plaintiff’s motion, XDD did not provide me with the results of their work until the evening of February 19, 2019. They also had omitted to search the Lasha Efremidze Hotmail account. This was not discovered until February 22, 2019, during the preparation of the declaration. See Paragraph 6 to the Anderson Declaration, Exhibit “L” to plaintiff’s motion. 15. Pursuant to the terms of the stipulation signed with the plaintiff, I forwarded the results of XDD searches the evening of February 19, 2019. See Exhibits “A’ – “C” to the motion. I did not have adequate time to review in detail what XDD has done regarding the Gray production. I noted on my transmittal e-mails that I reserved the right to withdraw documents contained in the production if they were subject to the attorney-client privilege or were protected by the right of privacy. It now appears based on plaintiff’s moving papers, that approximately 30 documents (out of 19,497), may be privileged. 16. On February 22, 2019, I forwarded to plaintiff the Anderson Declaration, attached as Exhibit “L” to their motion. Also on that date, I forwarded to plaintiff a privilege log, listing the 74 documents withheld from Efremidze’s production. The list was electronically prepared by XDD and identified the page number of each document withheld, as well as provided a basic description of them. The documents include Mr. Efremidze’s communications with me and another attorney, his and his family’s tax returns and tax forms, rental application, renter’s insurance, a former employer’s handbook, and a couple unrelated agreements. 17. On February 26, 2019, XDD forwarded to me Lasha Efremidze’s Hotmail account, which I immediately produced to plaintiff. No Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 11 of 14 Page ID #:10144 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 12 documents were withheld since this is his spam account. 18. It appears that due to the breadth of plaintiff’s search terms, which include broad words such as “app”, most of the documents bear little relation to the instant suit. None of them bear on any supposed trade secret of plaintiff. The Instant Dispute 19. Subsequent to receipt of the supplemental production, on February 25, 2019, plaintiff demanded that defendants produce a Slack text messaging account which belonged to Block & Tackle, Inc., a California corporation, which is not a party to this action, which has since been dissolved, and that Gray was an officer of. No discovery was propounded to this entity. It was not listed in Mr. Dubin’s e-mail nor in the stipulation. Nevertheless, to avoid court intervention and in the spirit of transparency and cooperation, I agreed to look for that account. The account and its log-in credentials were located the next day and provided to XDD. 20. Plaintiff’s counsel also told me on February 25, 2019, that they were dissatisfied with the format of the February 22, 2019 privilege log. During our call, I agreed to provide a supplemental log by February 27, 2019, addressing counsel’s concern. 21. Plaintiff’s counsel also told me that they deemed Gray to have waived the attorney-client privilege with respect to his document production. I disagreed. 22. On February 26, 2019, I sent plaintiff’s counsel an e-mail, a copy of which is attached hereto as Exhibit “E” agreeing to produce the Slack account and a supplemental privilege log. 23. A supplemental privilege log of documents withheld from Lasha Efremidze’s production was sent to counsel on February 27, 2019, per Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 12 of 14 Page ID #:10145 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 13 our agreement. A true and correct copy of the supplemental privilege log, e-mailed on February 27, 2019, is attached hereto as Exhibit “F” 24. Earlier this evening, the entire contents of Block & Tackle, Inc.’s Slack account currently accessible, in JSOP format were sent to counsel within 15 minutes of my receipt of them from XDD. A true and correct copy the transmittal e-mail is attached hereto as Exhibit “G”. I requested plaintiff to withdraw this ex parte application and motion as moot. No response has been received. 25. During XDD’s search of the Slack account, on February 26, 2019, they informed me that Block & Tackle used a free account and, as a result, certain folders were not retrievable. I immediately upgraded the account to a premium account, at defendants’ expense, to allow retrieval of its entire contents. The process consists of submitting a request to Slack, which then needs to be approved, at which time full access is granted. So far, we have not yet received a response from Slack. Once full access is granted, XDD will retrieve the additional file and I will then turn them over to counsel. 26. Therefore, plaintiff’s ex parte application and the accompanying motion are moot. 27. In a declaration filed in support of this motion, plaintiff’s council Douglas Curran states that his unnamed colleague started to give notice of the ex parte “commencing at 5:12 p.m. PST” on February 27, 2019. Curran Declaration, paragraph 5. I did not receive any notice of this application until 12:02 a.m. on February 28, 2019. It appears that plaintiff elected to give me notice last, in the middle of the night, knowing that I am the only counsel whose clients are affected by the motion. They did so after they were advised by me in writing that I would be at an all-day Mandatory Settlement Conference before Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 13 of 14 Page ID #:10146 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 DEFENDANTS GRAY AND EFREMIDZE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME ON ITS MOTION TO COMPEL 14 Magistrate Judge McDermott today, February 28, 2019, in Case No. 16- cv-03040, Colt v. Quasar Science, Cinelease, at al, See Exhibit “N”, page 3, to the Motion. I am the only litigator in my firm and am the only attorney working on this case on behalf of defendants Gray and Efremidze. Plaintiff’s six attorneys simultaneously working on this case know it. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 28th day of February 2019 at Los Angeles, California. /S/ Michael M. Baranov Michael M. Baranov Case 2:17-cv-04062-SVW-SS Document 269 Filed 02/28/19 Page 14 of 14 Page ID #:10147