Memorandum Points and AuthoritiesCal. Super. - 6th Dist.February 1, 2021[\J 10 ll l3 14 15 l6 17 18 19 20 21 23 24 25 26 27 28 Alexis J. [)aCosta (pro se) dacosta.alexis@ gmail.com 1292 Kifcr Road. Suite 802 Sunnyvale. California 94086 ’l‘clephonc: 858-736-761 8 Plaintiff ALEXIS DaCOSTA SUPERIOR COURT ()F THE STATE OF CALIFORNIA COUNTY ()F SANTA CLARA ALEXIS DaCOSTA. an individual. Case N0. 31CH009837 Plaintiff. MEMORANDUM ()F POINTS AND AUTHORITIES IN SUPPORT ()F v. MOTION T0 QUASH DEPOSITION SUBPOENA FOR CONSUMER KRZYSZTOF SYWULA. an individual. RECORDS ()F PLAINTIFF ALEXIS DaCOSTA Date: 5 25,2. Time: I 00M Crtrm: Judge: H n. ‘ ERIK S. JOHNSON Defendant. Pursuant to California Code 0f Civil Procedure sections 1987.1 and 1985.3(g). Plaintiff ALEXIS [)aCOSTA ("DaCosta") respectfully submits the following Memorandum 0f Points and Authorities in Support 0f DaCosta‘s Motion t0 Quash the Deposition Subpoena for Consumer Records 0f DaCosta. served by Defendant KRZYSZ'I‘OF SYWULA ("Sywula") in the above- entitled action. l. Introduction. Sywula cannot game the system to gain access t0 private. sensitive personal records. which will put DaCosta in danger by revealing his physical location data and that 0f his family. while at the same time Sywula actively evades service ofproccss and flaunts his contempt for this Court by continuing t0 harass and intimidate DaCosta. Nevenhclcss. that is precisely what Sywula seeks to |’( )IN‘I’S AND Al ' H [URI'HI‘S IN Sl ‘I’I’OR l’ ( )I‘ M( )TION 'I‘O ()l 'ASH Sl‘BPOFNA FOR CONSUMER RECORDS Case No. 2|CH009837 L» kl] \l d0. by way ofa sham personal records subpoena for cell phone records and data. served on Verizon Wireless Services. LLC. Disclosing the data Sywula demands would threaten the personal safety and wellbeing ofDaC‘osta and his family and lead t0 a substantial. unwarranted invasion ofprivacy. Compounding the problem are the numerous procedural defects in the subpoena. As shown below. this Court can and should grant DaCosta‘s motion and quash thc subpoena. entirely. ll. Factual Background. A. The Verizon Subpoena. On February l. 202 1 . this Court entered a Temporary Restraining Order. "based 0n unlawful violence. a credible threat of violence. 0r stalking." which enjoined Defendant Krzyszlof Sywula from coming withing 300 yards 0f DaCosta. his home. his place workplace. and his vehicle (the "Order"). See Docket #1. The Order also required that Sywula m_t "harass. intimidate. attack. stalk. threaten. abuse. destroy personal property 0f. 0r disturb thc peace 0f the person." 1d. The Court renewed the Order. following Sywula‘s failure t0 appear at a March 23. 2021 Order t0 Show Cause hearing. See Docket #10. On March 23. 2021. law enforcement filed a Declaration: Re: Diligence. demonstrating efforts to personally serve Sywula. who had evaded service. not personally appeared in this matter. and had n0 attorney appear 0n his behalf. Docket ##7-8: Declaration of Alexis DaCosta, fl 5. Despite his lack ofappcarance in this case and lack 0f an altorney-of-record. on April l. 202 1. through his counsel. Christopher Walters. Sywula served DaCosta and his family with copies 0f three Notices to Consumer or Employee and Objection and a Deposition Subpoena for Production 0f Business Records under (‘.C.P. § 2020.020(b). commanding Verizon Wireless Services. LLC produce 0f business and consumer records pertaining t0 DaCosta and his family. DaCosta DecL. fl 6. The subpoena called for the production 0f said records by Verizon by April 29. 2021. Id.. Ex. A. The subpoena sought consumer-rclatcd records as defined in C.C.P. § 1985.3 pertaining to DaCosta. in as much as it demanded. "Documents and records sufficient t0 show the location and coordinates for the use and presence ot‘the phones associated with phone numbers (858) 736-761 8. l POINTS AND Al i I HURI'I‘II-S IN SI‘PPORT ()l' .\1()|'|()N '|()(‘)l ‘.v\S|| SL‘BPUENA FOR CONSUMER RECORDS Case N0, 2|CH009837 Ix) Lu (858) 951-2347, and (408) 466-9922 for thc time period 0f January l. 2021 to the present." DaCosta Decl.. ‘- 7. 15x. A. Such phone numbers belonged to DaCosta and his wife. DaCosta was outraged by Sywula and Mr. Walter‘s attempts to use the subpoena power of this Court to gain access t0 his sensitive. private. personal location and association data. particularly When this Court‘s Order prohibited him from coming within 300 yards 0f DaCosta. Disclosing personal location and association data would threaten DaCosta’s personal safety and that of his family. DaCosta Decl. Q 8. DaCosta genuinely fears for his personal safety and that of his family‘s. given the threat 0f stalking and possible violence Sywula represents. DaCosta Decl., 1] 9. Sywula continues t0 intimidate and harass DaCosta by selectively contacting his business investors with false allegations a1 any time he pleases. leaving DaCosta t0 deal with the fallout while continuing 10 operate the company. ld.. at 10. One example is the February 18. 202] defamatory email message Sywula sent to a handful ol‘im'estors. after he freely and willingly resigned. Id. An existing investor tried t0 respond t0 Sywula's email four days later. but it seems Sywula is in hiding: "Subject: autorcsponder - unable I0 receive an email 0r phone call Re: Teleport. Dear sender. I live outside 0f USA and I‘m unable I0 receive this email 0r phone call." Id. Sywula‘s email response is particularly surprising. because previously claimed residence in San Jose. California but now l Id.. Ex. B. Another example 0f Sywula’s ongoingpurportedly “resides outside thc country." crusade ofharassmcnl against DaCosta is found in the March 29. 202] email message Sywula sent t0 n01 only existing investors. but prospective investors and business partners. too, accusing DaCosta 0f false allegations. Id.. at ll. The harm to DaCosta. his company. existing investors. and future t‘undraising prospects is immeasurable. Id. Sywula‘s conduct and ongoing. vicious acts 0f harassment are greatly disturbing 10 Dafosta: He is scared and feels n0 one can stop Sywula from trying t0 ruin his life. his family‘s lives. and his business. 111.. at 13. ' Whether Sywula is lying about his whereabouts is unknown. DaCosta Decl.. fl l2. The fact that Sywula is employed by Intel and married with young children in grade school in the San Jose area. leads DaCosta 10 question the veracity 0f Sywula‘s statements. 1d. Despite what Sywula claims. he very well could still bc in Ihc San Jose area. Id. 2 POINTS ANl) Al V'I'HORI'I'IFS IN SUPPOR'I ()l’ M(H'IUN 'l'() ()l WASH SUBPOENA FUR ("UNSUMI'TR RECORDS ('asc N0. Z ICH009837 0000\10 11 l3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DaCosta knows 0f no legitimate reason why Sywula would want. need. or otherwise be entitled t0 the information sought by way 0f the subpoena. DaCosta Decl.. ‘ l4. Apart from protecting his personal safely. other grounds for this motion include. without limitation: a. The deposition subpoena for the production of business records and things is not reasonably calculated t0 lead t0 the discovery ofadmissible evidence; b. The deposition subpoena for the production of business records and things seeks DaCosta‘s personal identifying information and violates his California constitutional right ofprivacy (Cal. Code Civ. Proc. Section l987.1(b)); c. The deposition subpoena for the production 0f business records and things is objectionable under Cal. Code Civ. Proc. Section 1985.3(g). t0 the extent it seeks non-party consumer records: d. The deposition subpoena for the production of business records and things is procedurally improper and ineffective; e. The deposition subpoena for the production of business records and things has not been properly served: and f. The deposition subpoena for the production 0f business records and things violates the Stored Communications Act (l8 U.S.C. section 2701. e! Seq.) DaCosta Decl.. 1] 15. B. Meet and Confer. DaCosta's attempts to reach an informal resolution t0 this matter by requesting Sywula and Mr. Walters withdraw the subpoena have failed. First. 0n April l. 2021. Teleport Mobility‘s legal counsel. Frederic G. Ludwig. III. sent an email message t0 Mr. Walters. demanding that he withdraw the subpoena. Hc did not. DaCosta [)ecl.. 11 16. On April l6. 202 l . a1 approximately 1:30 p.m.. DaCosIa had a telephone conversation with Mr. Walters. wherein he demanded that Mr. Walters and Sywula withdraw the subpoena. Mr. Walters refused to withdraw the subpoena. DaC‘osta Decl.. 1]_. I’UINI'S ANI) AlVI'HURI l II'S IN SUPPORT 0F MU'I I()N I'( ) ()UASH SUBPUFNA FUR CONSUMER RECORDS Case No 2 lCH009837 l\.) DJ A \lO‘xfiJl As the result 0f Sywula‘s refusal Io withdraw the subpoena. DaCosta had t0 write emails and make phone calls lo Mr. Walters. in attempts to resolve this dispute. DaCosta was also compelled l0 make thc instant motion. DaCosta Dch. ‘ 19. In alL he expended approximately fifteen (15) hours in pursuit ot‘this matter. including drafting ofthis motion. la’. DaCosta expects t0 spend another five (5) hours drafting any reply that might be necessitated and appearing at the hearing ot‘this motion. Id. These arc hours DaCosta needlessly devoted 10 this effort. rather than Io his company. Teleport Mobility. DaCosta has an effective hourly compensation rate 0f$100. In addition. DaCosta paid a $9.83 e-filing fee and $56.53 in postage. Id. Therefore. DaCosIa requests Sywula and/or his counsel. Mr. Walters. be ordered to pay monetary sanctions to DaCosta in the sum 0f$2066.36. Id. lll. Analysis. A. Legal Standard. California law bestows 0n this Court the power and authority t0 quash Sywula’s subpoena, in its entirety. Specifically. "[i]f a subpoena requires the production 0f books. documents or other things the court may make an order quashing the subpoena entirely. . Cal. Code Civ. Proc. § I987. l. Further. “[a]ny consumer whose personal records are sought by a subpoena duces tecum and who is a pany to the civil action in which this subpoena duces tecum is served may. prior to the date for production. bring a motion under Section 1987.] t0 quash 0r modify the subpoena duces tecum. Notice 0f the bringing 0f that motion shall be given to the witness and deposition officer at least fiVc days prior to production." Code Civ. Proc. § 1985.3(g). Given the severity Ofthis situation and the danger the subpoenaed records pose to DaCosta, this Court should not hesitate 10 exercise its power t0 quash the subpoena entirely. B. Numerous Grounds Exist to Quash Sywula’s Improper Subpoena. l. The Subpoena ls Premature and Procedural Defective. Sywula cannot serve a deposition notice or subpoena before he is served or makes his first appearance. The California Code 0f Civil Procedure states. “defendant may serve a deposition notice without leave 0f court at any time after that defendant has been served or has appeared in 4 POINTS ANI) Al ' I HURI | II‘S IN SUPPORT OF M(H ION |'() ()UASH SUBPOFNA FOR CONSUMER RECORDS Case N0. 2|CH009837 l\) b) the action. whichever occurs first." Cal. Code Civ. Proc. § 2025.210(a). "Based 0n the foregoing language. under the plain nwuning rule. thc Act contemplates that discovery conducted by way ofa business records subpoena is u "deposition." Unzipped.Alppurel. LL( ' v. Bader (2007) 156 Cal. App. 4th 123. I31: ('uli/brniu Shellfish. Inc. v. United Shellfish ('0. ( 1997) 56 Cal. App. 4th 16 (Holding that plaintiff improperly served business records subpoenas 0n a nonparty. before any defendant had been served with process 0r appeared). In the case 0f Svala. he has yet to appear and has evaded service ofproccss. Accordingly. Syxwla has n0 power 0r authority to avail himself ot‘the discovery process. while he simultaneously actively avoids service. The subpoena t0 Verizon is invalid. because it was issued before Sywula was personally served; this Court should not hesitate to grant DaCosta‘s motion t0 quash. 2. The Subpoena Represents an Egregious Invasion 0f Privacy. Even if the subpoena were timely. Ihc discovery Sywula demands 0f Verizon invades the privacy rights 0f DaCosta. his wife. and his parents. The right to a protected zone 0f privacy is codified. among other places. at Evid. Code § 1010.5 (regarding educational psychological records): Evid. Code § 1040 (regarding official records): and Ed. Code § 49076 (regarding academic records). Further. "California accords privacy the constitutional status ofan inalienable right. 0n a par with defending life and possessing property. Courts must balance right 0f civil litigants to discover relevant facts against privacy interests of persons subject to discovery." California Constitution. Article l. § 1; Vinson v. Superior ('ourl. 43 Cal. 3d 833 (1987). Thus, "...the court may make any...0rdcr as may be appropriate t0 protect thc person from unreasonable 0r oppressive demands. including unreasonable violations 0f the right 0f privacy of the witness. consumer. or employee." Code Civ. Proc. § 1987.1. Here. disclosure 0f personal cell phone account infomlation. including location and association data would represent an offensive. invasive encroachment 0f DaCosta‘ private affairs. brought about by the unreasonable gamesmanship 0f Sywula. The balance ofDaCosla‘s right t0 privacy far exceeds any right t0 discovery Sywula might have. As such. this Court should quash the subpoena. 5 POINTS ANI) Al ?THORH IIjS IN SUPPORT ()I" MOTION TO Ql [ASH SUBPOENA FUR CONSUMER RECORDS Case No. 2101009837 Lu OOOONOUIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a) Sywula Has N0 Right r0 Demand Discovery on DaCosta ’s Associations and Affiliations. There is n0 justification 0r legal authority for Sywula t0 obtain information regarding DaCosta‘s personal associations and affiliations. 0r those 0f his family. 'I‘o warrant the disclosure of private associations. affiliations and activities. such disclosure must not only “serve a ‘compelling‘ stale purpose. but such purpose cannot be pursued by means that broadly stifle fundamental personal libcnics when the end can be more narrowly achieved." Shelton v. Tucker. 364 U.S. 479 (1960). c'imd in Brill v. Superior ('(mrt. 20 Cal. 3d 844 (1978). There simply is no possible compelling purpose for the disclosure 0f DaCosta‘s cell phone account and location data, particularly when Sywula is restrained from coming within 300 yards 0f DaCosta. Allowing Sywula lo obtain the data sought through the subpoena would violate DaCosta‘s fundamental personal liberties t0 be safe and secure in his home. place Ofbusiness. or with family. This reason, in and of itself. is sufficient for the Court t0 quash the subpoena and DaCosta anticipates the Court will so rule. b) The Subpoena ls Unduly Intrusive. For similar reasons. the subpoena is unduly intrusive. "The court shall limit the scope 0f discovery if it determines that the burden. expense. 0r intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead t0 the discovery of admissible evidence." Cal. Code Civ. Proc. § 201 7.020(a). As shown in the attached Declaration of DaCosta. the matters sought b)" Sywula by means Oflhc subject subpoena consist of matters protected by the right to privacy 0f DaCosla‘s personal physical location and that 0f his family and are not sufficiently relevant t0 the issues in this litigation t0 support such intrusive discovery. This Court should grant DaCosta‘s motion 10 quash. accordingly. 3. The Subpoena Seeks Irrelevant, lnadmissible Evidence. The subpoena is also improper because Ihc information Sywula demands from Verizon is irrelevant t0 the matter at hand. “Unless otherwise limited by order Ofthe court in accordance with this article. any party may obtain discovery regarding any matter. not privileged. that is relevant t0 6 POINTS AND Al' I ”()Rl | ll‘S IN SUPPORT ()l‘ M()l'|( )N 'l'( ) ()UASH SUBPOENA FOR CONSUMER RECORDS Case N0. 2101009837 the subject matter involved in thc pending action..." Cal. Code Civ. Proc. § 2017.010. emphasis added. Further. "[n]0 evidence is admissible except relevant evidence." Cal. Evid. Code § 350. “Relevant evidence‘ means evidence. including evidence relevant Io thc credibility ofa witness 0r hearsay declarant. having any tendency in reason t0 prove 0r disprove any disputed fact that is 0f consequence t0 the determination 0f the action." Cal. Evid. Code § 210. In a matter concerning DaCosIa‘s personal safety relative to Sywula. cell phone account and location data 0f DaCosta and his family have no relevance whatsoever. The subpoena. therefore. is not proper and the Court should quash it. 4. Even if the Subpoena Targeted Relevant Information, the Burden, Expense and Intrusiveness 0f lt Outweighs the Likelihood the Information Sought Will Lead t0 Admissible Evidence. Sywula is not entitled t0 deference to "fish" for potentially relevant. admissible evidence. Section 2017.010 permits only discovery 0f relevant matter. which “either is itself admissible in evidence 0r appears reasonably calculated t0 lead t0 the discovery 0f admissible evidence." Cal. Code Civ. Proc. § 201 7.010. Further. this Court “shall limit the scope oi‘discovery ifit determines that the burden. expense. 0r intrusiveness 0f that discovery clearly outweighs the likelihood that the information sought will lcad t0 the discovery ofadmissible evidence." Cal. Code Civ. Proc. § 2017.020(a). The court shall restrict the frequency 0r extent ofuse ofa discovery method provided in Section 2019.010 if it determines either of the following: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient. less burdensome. 0r less expenswc. (2) The selected method 0f discovery is unduly burdensome or expensive. taking into account thc nccds 0f the case. the amount in controversy. and the importance ot‘the issues at stake in the litigation. Cal. Code Civ. Proc. § 20]9.()30(a); See also ('ulmr Space Facility. Inc. v. Superior ('ourl ( I997) 53 Cal. App. 4th 216. As shown herein. Sywula‘s subpoena seeks disclosure ofsensitive, private infomwtion. which would compromise the safety 0f DaCosta and his family. Moreover. the 7 POINTS AND AUTI l( )RI HLS IN SUPPORI ()I- M()|’I( )N 'I ( ) ()l ‘ASH SUIIPOFNA FUR CONSUMER RECORDS Case N0, 2 ICHO09837 \OOONO‘ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 28 discovery Sywula desires is irrelevant and not likely t0 lead to admissible evidence. As such, the subpoena is unduly burdensome and the Court should quash it. entirely. 5. The Subpoena Violates the Stored Communications Act. Sywula’s intrusive. abusive subpoena violates the Stored Communications Act. 18 United States Code sections 2701-2712 (the SCA). "Congress passed the SCA to fill a gap in the protections afforded by the Fourth Amendment." Juror Number One v. Superior Court (2012) 206 Cal.App.4th 854. 860 (Juror Number ()ne).) "The Fourth Amendment provides no protection for information voluntarily disclosed t0 a third party. such as an Internet service provider (ISP). [Citations.] T0 remedy this situation. the SCA creates a set ofFourth Amendment-like protections that limit both the government's ability t0 compel [SP's to disclose customer information and the ISP's ability t0 voluntarily disclose it." Id. at p. 860, citing Kerr. A User’s Guide r0 the Stored Communications Act, and a Legislator’s Guide to Amending [I (2004) 72 Geo. Wash. L.Rev. 1208, 1212-1 2] 3 (Kerr User's Guide). "'The [SCA] reflects Congress's judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility. Just as trespass protects those who rent space from a commercial storage facility t0 hold sensitive documents. [citation]. the [SCA] protects users whose electronic communications are in electronic storage with an ISP 0r other electronic communications facility.‘ [Citation.]" Juror Number One, supra. 206 Cal.App.4th at p. 860. Importantly. the SCA "is not a catch-all statute designed to protect the privacy 0f stored Internet communications; instead it is narrowly tailored t0 provide a set of Fourth Amendment-like protections for computer networks.” Kerr User's Guide, supra, 72 Geo. Wash. L.Rev. at p. 1214. These protections. contained in sections 2702 and 2703. provide network account holders with “statutory privacy rights against access t0 stored account information held by network service providers." Kerr User's Guide, supra. 72 Geo. Wash. LRev. at p. 1212. Section 2703 “creates limits on the government's ability t0 compel providers t0 disclose information in their possession about their customers and subscribers." Kerr User's Guide. supra, at p. 1212. fn. omitted. Here, 8 POINTS AND AUTI IORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA FOR CONSUMER RECORDS Case N0. 2|CH009837 OOOOVO 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the electronic cell phone account. location. and content data sought by Sywula falls within the scope Ofthe SCA and is improper. This Court should quash the subpoena. accordingly. C. DaCosta’s Motion to Quash ls Timely Made. DaCosta files his instant motion in a timely manner. Notice of bringing of a motion to quash shall be given t0 the witness and the deposition officer (whether a copy service or attorney as deposition officer) “at least five days prior t0 production.“ Cal. Code Civ. Proc. §§ 1985.3(g), 1985.6(0. DaCosta complies with this notice provision. D. Witness and Deposition Officer Relieved of Duty to Comply With Subpoena. Verizon must not provide the records requested by Syvmla. N0 witness or deposition officer shall be required t0 produce personal records 0r employment records after receipt of notice that the motion has been brought by a consumer 0r employee except upon order of the court or by agreement Ofthe parties. witnesses. and consumers/employees affected. Cal. Code Civ. Proc. §§ 1985.3(g). 1985.6(f). Here. DaCosta directs Verizon t0 not comply with the subject subpoena without a court order directing compliance. 0r an agreement between the parties. E. This Court Should Award DaCosta Monetary Sanctions Against Sywula and His Counsel. Sywula‘s conduct. as aided by his counsel, is sanctionable. "The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, 0r both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result 0fthat conduct." Cal. Code Civ. Proc. § 2023.030(a). Misuses 0f the discovery process include...(a) Persisting. over objection and without substantial justification, in an attempt to obtain information 0r materials that are outside the scope 0f permissible discovery. (b) Using a discovery method in a manner that does not comply with its specified procedures. (c) Employing a discovery method in a manner 0r t0 an extent that causes unwarranted annoyance. embarrassment. or oppression. 0r undue burden and expense...(h) Making 0r opposing. unsuccessfully and without substantial justification. a motion t0 compel or to limit discovery. Cal. Code Civ. Proc. § 7023.010. Section 1987.2 provides: "In making an order pursuant to a 9 POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA FOR CONSUMER RECORDS Case No. 2 |CH009837 10 ll 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 motion made under...Section 1987.1 [motion for order quashing a subpoena duces tecum]. the court may in its discretion award the amount Ofthe reasonable expenses incurred in making...the motion. including reasonable attorneys‘ fees. if the court finds the motion was...opposed in bad faith 0r without substantial justification..." Cal. Code Civ. Proc. § 1987.2. Sywula‘s refusal over DaCosta's objections Io withdraw the subpoena. without substantial justification. subjects that party to monetary sanctions for misuse ot‘the discovery process. See Cal. Code Civ. Proc. § 2023.010(a). Monetary sanctions should also be imposed under sections 2023.010(b), 2023.010(c) and 2023.01 O(h), as well as under section 1987.2. as stated above. As stated in his declaration, DaCosta has and/or will incur expenses and fees because 0f the Sywula and Mr. Walter’s conduct as described herein, in the sum 0f $2066.36. IV. Conclusion. For the foregoing reasons, Plaintiff DaCosta respectfully request this Court quash the entirety 0f the improper. defective. abusive. and intrusive subpoena to Verizon and impose sanctions on Sywula and his counsel in the amount of $2,066.36. Dated: April 19. 2021 Respectfully Submitted By: /s/ Alexis DaCosta ALEXIS DACOSTA, Plaintiff 10 POINTS ANI) AUTHORITIES IN SUPPORT ()F MOTION TO QUASH SUBPOENA FOR CONSUMER RECORDS Case No. 2|CH009837