Calendar Research LLC v. StubHub, Inc. et al

Opposition Opposition re: EX PARTE APPLICATION to Shorten Time for Hearing on Motion to Compel Further Discovery

C.D. Cal.March 1, 2019

-1- DEFENDANT LISA DUSSEAULT’S JOINDER IN OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME 306665.1 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 BRENDAN S. MAHER (SBN 217043) brendan.maher@strismaher.com ELIZABETH R. BRANNEN (SBN 226234) elizabeth.brannen@strismaher.com STEVEN B.F. STIGLITZ (SBN 222667) steven.stiglitz@strismaher.com STRIS & MAHER LLP 725 S. Figueroa Street, Suite 1830 Los Angeles, CA 90017 T: (213) 995-6800 | F: (213) 261-0299 Attorneys for Defendant Lisa Dusseault UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 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 5 through 10, inclusive, Defendants. CASE NO. 2:17-cv-04062-SVW-SS [Hon. Stephen V. Wilson, Courtroom 10A] DEFENDANT LISA DUSSEAULT’S JOINDER IN DEFENDANT STUBHUB, INC.’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME Case 2:17-cv-04062-SVW-SS Document 271 Filed 03/01/19 Page 1 of 4 Page ID #:10164 -2- Case No. 2:17-cv-04062-SVW-SS DEFENDANT LISA DUSSEAULT’S JOINDER IN OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME 306665.1 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 Defendant Lisa Dusseault (“Dusseault”) hereby joins in Defendant StubHub, Inc.’s Opposition to Plaintiff Calendar Research LLC’s (“Plaintiff”) Ex Parte Application to Shorten Time (the “Application”). Dusseault reserves the right to file a further opposition to the extent more time is permitted, but to the extent Dusseault is required to file a substantive opposition to the Motion to Compel on the timeline Plaintiff demands (which Dusseualt contends would be unnecessary and provides insufficient time), Dusseault opposes said Motion on the following grounds: 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 Dusseault’s summary judgment motion be denied, granting Plaintiff’s requested relief could be taken as tantamount to finding that Dusseault is liable when the case is tried. Notably, Plaintiff alleges that Dusseault 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. Case 2:17-cv-04062-SVW-SS Document 271 Filed 03/01/19 Page 2 of 4 Page ID #:10165 -3- Case No. 2:17-cv-04062-SVW-SS DEFENDANT LISA DUSSEAULT’S JOINDER IN OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME 306665.1 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 Cal. Jan. 3, 2011) (emphasis added), an adverse inference against Defendants Gray and Efremidze would necessarily implicate Dusseault—a person alleged to be a co-conspirator. 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 Dusseault engaged in the same conduct. This would materially unfairly and prejudice Dusseault, who is not alleged to have done anything wrong in the motion. 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 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 Gray and Efremidze obtaining access to certain electronically stored information, which has not yet been permitted by the internet service provider (Slack), so the documents then can be produced immediately. 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 Case 2:17-cv-04062-SVW-SS Document 271 Filed 03/01/19 Page 3 of 4 Page ID #:10166 -4- Case No. 2:17-cv-04062-SVW-SS DEFENDANT LISA DUSSEAULT’S JOINDER IN OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME 306665.1 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 unfair, spillover prejudice to Dusseault, complicate the case dramatically to try to address that prejudice, and is premature. DATED: February 28, 2019 STRIS & MAHER LLP By /s/ Steven B. Stiglitz Steven B. Stiglitz Attorneys for Defendant Lisa Dusseault Case 2:17-cv-04062-SVW-SS Document 271 Filed 03/01/19 Page 4 of 4 Page ID #:10167