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19CV349042
Santa Clara — Civil
SNehistem
SEMEN SUIRO, 2 GENTE _ ron coun UREN
SUZANNE R. FOGARTY, ESQ. (SBN 154319) Electronically Filed
DUANE MORRIS LLP by Superior Court of CA,
One Market Plaza, Spear Tower, Suite 2200, San Francisco, CA 94105
TELEPHONE NO: 415-957-3000 FAX NO. (Optionay: 415-957-3001
E-MAIL ADDRESS (Optional): SHSutro@DuaneMorris.com / SRFogarty@DuaneMorris.com
ATTORNEY FOR (Name): Plaintiff, SunPower Corporation
(County of Santa Clara,
lon 8/31/2020 8:13 PM
Reviewed By: System System
Case #19CV349042
‘SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
STREET ADDRESS; 191 N. First Street
MAILING ADDRESS: 191 N, First Street
city AND zip conE: San Jose, California 95113
BRANCH NAME: Downtown Branch
Envelope: 4859154
PLAINTIFF/PETITIONER: SunPower Corporation
DEFENDANT/RESPONDENT: Martin DeBono, Standard Industries Inc., GAF Energy
CASE MANAGEMENT STATEMENT CASE NUMBER:
(Check one): [22] UNLIMITED CASE [ uimitep case TO ae
(Amount demanded (Amount demanded is $25,000
exceeds $25,000) or less)
(A CASE MANAGEMENT CONFERENCE is scheduled as follows:
Date: September 15, 2020 Time: 10:00 a.m. Dept.: 21 Div.: Room:
Address of court (if different from the address above):
161 N. First Street, San Jose, CA 95113
[__] Notice of Intent to Appear by Telephone, by (name): Stephen H. Sutro and Suzanne R. Fogarty
INSTRUCTIONS: All applicable boxes must be checked, and the specified information must be provided.
1. Party or parties (answer one):
a. [__] This statement is submitted by party (name):
b. [5<] This statement is submitted jointly by parties (names): See attachment 1.b.
2. Complaint and cross-complaint (to be answered by plaintiffs and cross-complainants only)
a. The complaint was filed on (date): June 14, 2019
b. [3c] The cross-complaint, if any, was filed on (date): March 30, 2020 and August 6, 2020
3. Service (fo be answered by plaintiffs and cross-complainants only)
a. [3] All parties named in the complaint and cross-complaint have been served, have appeared, or have been dismissed.
b. [_] The following parties named in the complaint or cross-complaint
(1) [_] have not been served (specify names and explain why not):
(2) [] have been served but have not appeared and have not been dismissed (specify names):
(3) [_] have had a default entered against them (specify names):
c. [__] The following additional parties may be added (specify names, nature of involvement in case, and date by which
they may be served):
4. Description of case
a. Type of case in
SunPower’s claims:
duty of loyalty. Standard/GAF Energy cross-complaint: UCL.
complaint ([] cross-complaint (Describe, including causes of action):
isappropriation and threatened misappropriation of trade secrets, breach of contract and breach of the
Form Adopted for Mandatory Use CASE MANAGEMENT STATEMENT
Jusicia! Counell of California
CM-110 [Rev. July 1, 2011]
Page 1 ofS
Cal, Rules of Court,
nules 3.720-3.730
www.courts.ca.govCM-110
PLAINTIFF/PETITIONER: SunPower Corporation CASE NUMBER:
DEFENDANT/RESPONDENT: Martin DeBono, Standard Industries Inc., GAF Eneray _
4.b. Provide a brief statement of the case, including any damages. (If personal injury damages are sought, specify the injury and
damages claimed, including medical expenses to date [indicate source and amount}, estimated future medical expenses, lost
eamings to date, and estimated future lost eamings. If equitable relief is sought, describe the nature of the relief.)
See attachment 4. b.
[_] (if more space is needed, check this box and attach a page designated as Attachment 4b.)
5, Jury or nonjury trial
a. The party or parties request [_x_] a jury trial [-} anonjury trial. (!f more than one party, provide the name of each party
requesting a jury trial):
6. Trial date
a. [__] The trial has been set for (date):
b. [5¢] No trial date has been set. This case will be ready for trial within 12 months of the date of the filing of the complaint (if
not, explain):
See attachment 6.b.
c, Dates on which parties or attorneys will not be available for trial (specify dates and explain reasons for unavailability):
7. Estimated length of trial
The party or parties estimate that the trial will take (check one):
a. [4<] days (specify number): See attachment 7.
b. [J] hours (short causes) (specify):
8. Trial representation (to be answered for each party)
The party or parties will be represented at trial [__] by the attorney or party listed in the caption [1] by the following:
a. Attorney: Steven H. Sutro (SBN 172168)
b, Firm: Duane Morris LLP
c. Address: One Market, Spear Tower, Suite 2200, San Francisco CA 94105
d. Telephone number: 415-957-3000 f. Fax number: 415-957-3001
e. E-mail address; shsutro@duanemorris.com g. Party represented: SunPower Corporation
Additional representation is described in Attachment 8.
9. Preference
[1 This case is entitled to preference (specify code section):
10. Alternative dispute resolution (ADR)
a. ADR information package. Please note that different ADR processes are available in different courts and communities; read
the ADR information package provided by the court under rule 3.221 for information about the processes available through the
court and community programs in this case.
(1) For parties represented by counsel: Counsel [x] has [__] hasnot provided the ADR information package identified
in rule 3.221 to the client and reviewed ADR options with the client.
(2) For self-represented parties: Party [4] has [__] has not reviewed the ADR information package identified in rule 3.221.
b. Referral to judicial arbitration or civil action mediation (if available).
(1) [J This matter is subject to mandatory judicial arbitration under Code of Civil Procedure section 1141.11 or to civil action
mediation under Code of Civil Procedure section 1775.3 because the amount in controversy does not exceed the
statutory limit.
(2)f Plaintiff elects to refer this case to judicial arbitration and agrees to limit recovery to the amount specified in Code of
Civil Procedure section 1141.11.
(3) 7] This case is exempt from judicial arbitration under rule 3.811 of the California Rules of Court or from civil action
mediation under Code of Civil Procedure section 1775 et seq. (specify exemption):
Page 20f 6
ol CASE MANAGEMENT STATEMENTCM-110
PLAINTIFF/PETITIONER: SunPower Corporation CASE NUMBER:
DEFENDANT/RESPONDENT: Martin DeBono, Standard Industries Inc., GAF Energy 19CV349042
10. c. Indicate the ADR process or processes that the party or parties are willing to participate in, have agreed to participate in, or
have already participated in (check all that apply and provide the specified information):
‘The party or parties completing _|If the party or parties completing this form in the case have agreed to
this form are willing to participate in or have already completed an ADR process or processes,
participate in the following ADR _|indicate the status of the processes (attach a copy of the parties' ADR
processes (check aif that apply): |stipulation):
{_] Mediation session not yet scheduled
(J Mediation session scheduled for (date):
[7] Agreed to complete mediation by (date):
[J Mediation completed on (date): August 20, 2020
(1) Mediation cd
[-) Settlement conference not yet scheduled
(2) Settlement oo [—] Settlement conference scheduled for (date):
conference [-) Agreed to complete settlement conference by (date):
[] Settlement conference completed on (date):
{[_] Neutral evaluation not yet scheduled
() Neutral evaluation scheduled for (date):
[_) Agreed to complete neutral evaluation by (date):
(] Neutral evaluation completed on (date):
(3) Neutral evaluation
[) Judicial arbitration not yet scheduled
(4) Nonbinding judicial | [} Judicial arbitration scheduled for (date):
arbitration [) Agreed to complete judicial arbitration by (date):
[) Judicial arbitration completed on (date):
[) Private arbitration not yet scheduled
(6) Binding private | [5 Private arbitration scheduled for (date):
arbitration [7 Agreed to complete private arbitration by (date):
[_] Private arbitration completed on (date):
(J ADR session not yet scheduled
(J ADR session scheduled for (date):
[1 Agreed to complete ADR session by (date):
[J ADR completed on (date):
(6) Other (specify): [a]
CMM-110 [Rev. July 1, 2011] Page 3 of 5
CASE MANAGEMENT STATEMENTCM-110
PLAINTIFF/PETITIONER: SunPower Corporation CASE NUMBER:
DEFENDANT/RESPONDENT: Martin DeBono, Standard Industries Inc., GAF Energy tecva4en42
11. Insurance
a. [__] Insurance carrier, if any, for party filing this statement (name):
b. Reservation of rights: [__] Yes [__] No
c. [__] Coverage issues will significantly affect resolution of this case (explain):
12. Jurisdiction
Indicate any matters that may affect the court's jurisdiction or processing of this case and describe the status.
(5 Bankruptey [—_] Other (specify):
Status:
13. Related cases, consolidation, and coordination
a. [-_] There are companion, underlying, or related cases.
(1) Name of case:
(2) Name of court:
(3) Case number:
(4) Status:
[4c] Additional cases are described in Attachment 13a.
b. [-_] A motion to [J consolidate [-) coordinate will be filed by (name party):
14, Bifurcation
[_] The party or parties intend to file a motion for an order bifurcating, severing, or coordinating the following issues or causes of
action (specify moving party, type of motion, and reasons):
15, Other motions
The party or parties expect to file the following motions before trial (specify moving party, type of motion, and issues):
See attachment 15.
16. Discovery
a. [__] The party or parties have completed all discovery.
b. [3c] The following discovery will be completed by the date specified (describe all anticipated discovery):
Party Description Date
see attachment 16.b.
c. [4] The following discovery issues, including issues regarding the discovery of electronically stored information, are
anticipated (specify):
See attachmnet 16. c.
Tee Ee) CASE MANAGEMENT STATEMENT eeCM-110
PLAINTIFF/PETITIONER: SunPower Corporation CASE NUMBER:
DEFENDANT/RESPONDENT: Martin DeBono, Standard Industries Inc., GAF Energy 19CV349042
17. Economic litigation
a. ! This is a limited civil case (i.e., the amount demanded is $25,000 or less) and the economic litigation procedures in Code
of Civil Procedure sections 90-98 will apply to this case.
b. [_] This is a limited civil case and a motion to withdraw the case from the economic litigation procedures or for additional
discovery will be filed (if checked, explain specifically why economic litigation procedures relating to discovery or trial
should not apply to this case):
18. Other issues
[) The party or parties request that the following additional matters be considered or determined at the case management
conference (specify):
19. Meet and confer
a. [_] The party or parties have met and conferred with all parties on all subjects required by rule 3.724 of the California Rules
of Court (if not, explain):
The parties have met and conferred regarding the Case Management Statement.
b. [_] After meeting and conferring as required by rule 3.724 of the California Rules of Court, the parties agree on the following
(specify):
20. Total number of pages attached (if any): 12
! am completely familiar with this case and will be fully prepared to discuss the status of discovery and alternative dispute resolution,
as well as other issues raised by this statement, and will possess the authority to enter into stipulations on these issues at the time of
the case management conference, including the written authority of the party where required.
Date: August 31, 2020
Suganne 2 Guy
Stephen H. Sutro, Esq. and Suzanne R. Fogarty, Esq. > a
(TYPE OR PRINT NAME) {SIGNATURE OF PARTY OR ATTORNEY)
Raza Rasheed, Esq. > Rage Rashirdl
(TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY)
[&) Additional signatures are attached.
Page of 5
eo CASE MANAGEMENT STATEMENT
For your protection and privacy, please press the Clear
This Form button after you have printed the form.
Save this formAttachment 1.b
This Statement is jointly submitted by: Plaintiff SunPower Corporation and Defendants
Standard Industries Inc., GAF Energy LLC, and Martin DeBono.
DMI\I1384011 4Attachment 4.b
SunPower’s Statement of the Case:
This case arose because defendant Martin DeBono (“DeBono”), a former high-level
SunPower executive, took well over a thousand of SunPower’s files containing key confidential
and trade secret information in connection with his departure from SunPower, and then
repeatedly lied in an attempt to cover up his actions. After forensic evidence revealed that not
only did Mr. DeBono take SunPower’s trade secret information, by uploading over 1,700
SunPower files to a private OneDrive cloud storage account and emailing other documents to his
private email, but he later actually accessed and used SunPower’s trade secret information while
working as the lead executive head of solar for his new employer Standard/GAF Energy,
Defendants refused to provide competent forensic evidence that they were not continuing to use
SunPower’s stolen information to compete in the solar market. SunPower thus, out of necessity,
is pursuing litigation to protect its trade secrets and intellectual know-how that is the product of
tens of millions of dollars of investment over a period of many years.
Defendants’ new theory that DeBono “did not realize that SunPower documents
remained in the cloud repository of his personal OneDrive account” is belied by forensic
evidence that demonstrates that while working as Standard’s new head of solar, DeBono
accessed confidential and trade secret SunPower documents in his OneDrive account to use for
his work at Standard. For example, while Standard was trying to recruit SunPower’s Senior
Director, Digital Project Management, Jake Wachman, DeBono accessed SunPower’s
confidential and proprietary roadmap on how to develop a digital customer experience — an area
within Mr. Wachman’s domain at SunPower. (Digital tools are critical to residential and
commercial solar sales and service because they reduce the additional costs associated with
manual estimating, pricing and design.) DeBono also accessed confidential SunPower reports
that include data on SunPower employee salaries and benefits during this period.
For the past year, Defendants’ primary tactic to avoid transparency into what has been
done with SunPower’s trade secret and confidential information has been to object to discovery
under California Code of Civil Procedure Section 2019.210. Defendants have sought to take
advantage of the fact that Mr. DeBono took such a large volume of information to argue that they
“don’t understand” what SunPower’s trade secrets really are (and to attack the merits of
SunPower’s claim before discovery, which is not permitted at this stage). Defendants’ ongoing
objections under Section 2019.210 are inconsistent with California law. (See, Brescia v. Angelin
(2009) 172 Cal.App.4th 133, 143 [“trade secret designation is to be liberally construed, and
reasonable doubts regarding its adequacy are to be resolved in favor [of] allowing discovery to
go forward.”); Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th
826, 836 [“[o]ur discovery statutes are designed to ascertain the truth, not suppress it. Any doubt
about discovery is to be resolved in favor of disclosure.”])
Defendants mischaracterize the Court’s prior orders, SunPower’s two prior trade secret
designation, and California law in their efforts to continue to stall discovery. SunPower has
more than satisfied the requirements of Section 2019.210 to designate the trade secrets at issue in
this litigation.
DMI\11384011.4In addition to using Section 2019.210 as a weapon to obfuscate discovery, Defendants
cast unfounded and inaccurate aspersions at SunPower and have looked for every opportunity to
drive up legal costs and the expense of the proceedings — all of which could have been easily
avoided if, as Defendants contend, they really have not kept or used SunPower’s information.
Yet, despite that contention, Defendants continue to refuse reasonable discovery that would
remove the mystery of all of this. SunPower has made no secret of its need for transparency.
The question remains: what are defendants hiding?
Just one example of Defendants’ efforts to drive up costs, is Standard/GAF Energy’s
Standard’s meritless cross-claim against SunPower based on SunPower’s non-solicitation
agreement with DeBono and other unspecified employees. The Court already held that non-
solicitation provisions are unenforceable in its February 14, 2020 Order granting DeBono’s
demurrer on this issue. Standard’s efforts to continue litigate an issue that is now moot are a
transparent attempt to distract from SunPower’s misappropriation claim and to increase costs.
Ironically, Standard’s own contract with DeBono prohibits him from soliciting Standard
employees for twenty-four months “after the termination of his/her employment from the
Company (for any reason).” SunPower does not believe Standard has a viable cause of action
against SunPower.
SunPower has filed a motion to compel discovery, which is scheduled for hearing on
November 10, 2020. Once the stay of discovery is lifted and SunPower is able to conduct
necessary discovery, SunPower will be in a better position to calculate the full extent of its
damages for misappropriation of trade secrets beyond Mr. DeBono’s severance and the forensic
investigation costs that SunPower has been forced to incur. SunPower also seeks a permanent
injunction to protect its trade secrets from further disclosure and misuse by the Defendants.
Defendants’ Statement of the Case:
SunPower is a troubled enterprise that used to be a major player in the rooftop solar
energy market, but has seen its position wither in recent years amidst stiff domestic and foreign
competition. As SunPower’s market position has eroded, talented SunPower employees have left
looking for better opportunities elsewhere. One of those employees is Martin DeBono, a former
SunPower vice president and a current employee of GAF Energy. Seeking to stifle further
personnel losses and wrongfully leverage the court system to harm a competitor, SunPower has
brought the instant lawsuit against DeBono and his new employers (Standard and GAF Energy,
collectively “Standard”), alleging unsupported claims of trade secret misappropriation. The
litigation thus far has revealed that SunPower lacks any good faith basis for its claims.
SunPower claims that DeBono stole sensitive documents containing trade secrets, but SunPower
has thus far been entirely unable to identify what those alleged trade secrets are, and in reality the
only “wrongful” conduct SunPower has alleged against DeBono is that he did not realize that
SunPower documents remained in the cloud repository of his personal OneDrive. account, which
had been used with SunPower’s approval, even though he had deleted them on his local
computer.! Indeed, multiple forensic investigations have confirmed that none of the 1700+
: SunPower claims this is a new theory. Far from it. DeBono has been consistent since the inception of this
case, as reflected by his Declaration in support of his opposition to SunPower's preliminary injunction motion,
which was ultimately denied by the Court.
DMIN11384011.4documents (which includes unrelated documents like DeBono’s tax information and pictures) are
on Standard’s devices or servers. In fact, Judge Helen E. Williams of this Court has held, in her
February 3, 2020 Order Denying Application for Preliminary Injunction, that:
there is insufficient evidence indicating that [Standard] ever acquired (or otherwise
misappropriated) any such documents. As to DeBono, there is limited evidence in
the form of meta-data suggesting that he actually ‘accessed’ or ‘modified’ 12
documents after his employment with SunPower ended, but . . . such evidence
appears insufficient to show by itself that SunPower is likely to prevail in a showing
of ‘misappropriation’ against DeBono.
Id, at 3:12-20.
Setting aside evidence of use or misappropriation, SunPower cannot even define what the
supposed “trade secrets” DeBono allegedly took are with requisite specificity under California
Code of Civil Procedure section 2019.210 (“Section 2019.210”). SunPower has made numerous
attempts to define its “trade secrets” with sufficient particularity, and has failed each time. On
September 27, 2019, Judge Mark H. Pierce found that SunPower’s first trade secret designation
was insufficient, and ordered a stay of discovery. Judge Williams agreed with Judge Pierce’s
holding in denying SunPower’s application for a preliminary injunction. On April 21, 2020,
Judge Thang N. Barrett found that SunPower’s second trade secret designation was similarly
deficient, and refused to lift the discovery stay. Given that SunPower’s third (and most recent)
designation suffers from the same problems as SunPower’s ill-fated prior trade secret
disclosures, it is similarly noncompliant with Section 2019.210 such that the discovery stay
should continue.
Finally, Standard has brought a cross-complaint against SunPower for unfair trade
practices in violation of California Business and Professions Code section 17200. Standard
alleges that SunPower commonly weaponizes unlawful non-solicitation provisions in its
employee contracts (as it has tried to do with DeBono) in order to further stifle employee
mobility. These kinds of non-solicitation provisions have already been found to be unlawful—in
fact, Judge Barrett held on February 14, 2020, that SunPower’s non-solicitation provision
purporting to bar DeBono from recruiting current SunPower employees, was invalid as a matter
of law. These non-solicitation provisions have caused Standard real harm—Standard has (i)
suffered from the inability to use its executives to recruit candidates to build out its solar team;
(ii) been forced to retain the services of a recruiting firm to recruit potential candidates at
SunPower; (iii) resulted in increased recruiting costs; (iv) forced Standard to rely on less
experienced employees to recruit candidates; (v) caused Standard to lose out on qualified
SunPower candidates that would have otherwise been interested in coming to Standard; and (vi)
otherwise hindered Standard’s lawful efforts to build out its solar team. Standard is requesting
injunctive relief to prevent SunPower from including or enforcing its non-solicitation provisions
in the future.
DMN1384011.4Attachment 6.b
SunPower’s Estimate:
The parties stipulated to have this matter designated “complex” because of the legal
complexity of SunPower’s claims and Defendants’ defenses, and the large amount of evidence
and witnesses involved, (The application was denied by the Complex Department). The parties
have already engaged in extensive pretrial motions and anticipate extensive further pre-trial
motions raising novel and difficult legal issues that will be time-consuming to resolve. This
matter will likely involve a large number of witnesses and substantial documentary evidence.
SunPower has not yet been able to conduct any discovery because discovery has been
stayed since September 27, 2019 because of the parties’ dispute over SunPower’s California
Code of Civil Procedure Section 2019.210 Designation. SunPower served its amended trade
secret designation on June 3, 2020 and has filed a motion to compel discovery, which is set for
hearing on November 10, 2020. SunPower estimates that the case will be ready for trial
approximately 12 months after the discovery stay is lifted and discovery commences.
Defendants’ Estimate:
At this time, Defendants are unable to offer any estimate of when this case will be ready
for trial. Despite the fact that Plaintiff filed this lawsuit more than a year ago, no discovery has
been exchanged because Plaintiff has repeatedly refused to designate the alleged trade secrets at
issue in this action with reasonable particularity as required by California law. Plaintiff has also
unlawfully refused to provide any discovery related to Standard’s and GAF Energy’s cross-
complaint while its meritless demurrer is pending, further delaying matters. Because Plaintiff's
improper conduct has repeatedly delayed the progression of this case, Defendants believe it is
unlikely that this matter will be ready for trial within 12 months.
‘DMIM1384011.4Attachment 7
SunPower’s Estimate: SunPower’s estimate is 10 court days, not including any cross-claims.
Defendants’ Estimate: Defendants currently estimate that trial will take 15 court days, all-
inclusive.
DMINI1384011.4Attachment 8
Jonathan A. Patchen, Esq. — Counsel for Defendant Martin DeBono
Cheryl A. Cauley, Esq.
Daniel P. Martin, Esq.
Baker Botts L.L.P.
101 California Street, Suite 3600
San Francisco, CA 94111
Telephone: 415.291.6209
John (Jay) Neukom, Esq. — Counsel for Defs. Standard Industries, Inc. and GAF Energy LLC
Abraham A. Tabaie, Esq.
Caroline Van Ness, Esq.
Raza Rasheed, Esq.
Michelle Kao, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Suite 1400
Palo Alto, CA 94301-1908
Telephone: 650.470.4560
DM1\11384011.4Attachment 13
SunPower’s Position:
On June 20, 2019, SunPower filed a Notice of Related Case to relate this action to a
separate action, SunPower Corporation v. Gabriela Bunea, (“Bunea action”) Case. No. 19-cv-
342228, against another SunPower former employee who also now works at Standard/GAF
Energy. Defendants opposed relating the cases and they were not related by the Court. On April
11, 2019, SunPower and Dr. Bunea entered into a stipulation to stay the Bunea action pending
arbitration. The arbitration is now proceeding in SunPower y. Bunea, AAA Case. No. 01-19-
0003-9663 (Arbitrator Dana Welch) (the “Bunea Arbitration”). The Bunea action is currently
stayed.
There are currently two Cross-Petitions arising from a discovery order issued by the
Tribunal in the Bunea arbitration pending before this Court. Specifically, on July 12, 2020, the
Tribunal issued an Order Granting SunPower’s Motion to Compel Compliance With Subpoenas
against Dr. Bunea’s current employer, Standard Industries Inc. and GAF Energy LLC,
defendants in this action but not parties to the Bunea arbitration. The Tribunal found that there
was “good cause to order compliance with the subpoenas” and that “the discovery sought by the
subpoenas is critical to a fair adjudication of SunPower’s claims against Dr. Bunea.”
On July 22, 2020, SunPower commenced the action styled, SunPower Corporation v.
Standard Industries Inc. and GAF Energy LLC, Case No. 20CV368636, by filing a Petitionto *
Confirm and Enforce Arbitration Order (“SunPower Petition”). On July 28, 2020, Standard and
GAF Energy commenced the action , styled, Standard Industries Inc. and GAF Energy LLC vy.
SunPower Corporation, Case No. 20CV368810, by filing a Petition to Vacate Or Correct
Discovery Order Of Arbitrator, Or In The Alternative, Motion For Protective Order.
These actions and the Bunea action have been related by the Court and are assigned to
the Honorable Sunil R. Kulkarni in Department 8, with a hearing scheduled for September 17,
2020 on the Petitions.
Defendants’ Position:
Defendants believe that the cross-petitions filed by SunPower on the one hand, and
Standard and GAF Energy on the other, regarding to the Bunca arbitration tribunal’s unlawful
third party discovery order, should be related with this action.
DMIM11384011.4Attachment 15
SunPower’s Position:
SunPower may file a motion for summary judgment or summary adjudication after
discovery, including a motion regarding Standard/GAF Energy’s cross-claims. SunPower has
also filed a motion to compel discovery responses.
Defendants’ Position:
Defendants will file a motion for summary judgment against SunPower’s claims, and a
motion for sanctions for SunPower’s wrongful prosecution of this action long after it became
clear that SunPower had no good faith basis for its claims. Defendants will also file a motion to
compel responses to the discovery requests they have served on SunPower, and may file a
motion for sanctions to address SunPower’s unlawful discovery misconduct.
Standard and GAF Energy may also file a motion for summary judgment in Standard and
GAF Energy’s favor on their respective cross-claims against SunPower.
DMI1384011.4Attachment 16.b
SunPower’s Discovery:
SunPower have served Requests for Production, Interrogatories, and Requests for
Admissions on Standard. SunPower has also served a deposition notice on Defendant DeBono.
Defendants have thus far refused to respond to substantively to any of SunPower’s requests.
Defendants contend that discovery is still stayed pursuant to the Court’s September 27, 2019
Order. SunPower served an amended trade secret designation on June 3, 2020. SunPower asked
Defendants to agree that the discovery stay was lifted but Defendants refused to agree.
SunPower has filed a motion to compel discovery.
SunPower anticipates that it will need to serve additional discovery, including discovery
regarding Standard/GAF Energy’s cross-complaint.
Defendants’ Discovery:
Defendants have served Requests for Production, Interrogatories, and Requests for
Admissions on SunPower. SunPower has thus far, without any lawful basis, refused to respond
substantively to these discovery requests, claiming that the Court’s order staying SunPower’s
discovery stays Defendants’ discovery as well. Defendants are thus unable to provide any
estimate for when discovery will be complete.
10
DMI\L138401 1.4Attachment 16.¢
SunPower’s Position:
SunPower believes that this case would be resolved quickly if Defendants agreed to
cooperate with SunPower’s reasonable requests targeted to confirm that Defendants are not still
using the trade secret information that Mr. DeBono took from SunPower. Discovery, however,
has been stayed pursuant to a September 27, 2019 Order regarding a dispute over SunPower's
California Code of Civil Procedure 2019.210 trade secret designation. SunPower served an
amended trade secret designation on June 3, 2020. SunPower has filed a motion to compel
discovery, which is set for hearing on November 10, 2020. SunPower requests that the Court lift
the stay of discovery so the parties can focus on the discovery they need to resolve this case or
prepare for trial.
SunPower contends that this is a complex case and that there is likely to be significant
amount of document discovery and depositions. SunPower anticipates it will take at least 6-9
months to complete discovery once the stay is lifted, assuming there are not any other significant
discovery disputes.
Defendants’ Position:
Three different Judges of this Court have held that SunPower’s prior attempts to
designate its alleged trade secrets with reasonable particularity are inadequate as a matter of law.
Despite this copious judicial guidance, SunPower’s third attempt a trade secret designation
repeats the errors this Court identified in its previous two attempts, and thus the stay of trade
secret discovery entered against SunPower should not be lifted.
Separately, SunPower has refused to provide any of the discovery requested by
Defendants, arguing disingenuously that the stay of discovery entered against SunPower is a
basis for SunPower to refuse to provide any discovery of its own. Defendants anticipate filing a
motion to compel responses to their discovery requests, and may file a motion for sanctions to
address SunPower’s discovery misconduct.
il
DMIN11384011.4Additional Signature
Jonathan A. Patchen, Esq
Counsel for Defendant Martin DeBono
12
DMIN11384011.4PROOF OF SERVICE
SunPower Corporation v. Martin DeBono, Standard Industries, Inc., GAF Energy;
and DOES 1 - 100
Santa Clara County Superior Court, Action No. 19CV349042
lam a citizen of the United States, over the age of 18 years, and not a party to interested in the
cause. J am an employee with Duane Morris LLP and my business address is One Market Plaza,
Spear Tower, Suite 2200, San Francisco, California 94105. I am readily familiar with this firm’s
practices for collecting and processing correspondence for mailing with the United States Postal
Service and for transmitting documents by FedEx, fax, email, messenger and other modes. On the
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CASE MANAGEMENT STATEMENT; ATTACHMENTS
BY ELECTRONIC SERVICE: VIA E-Service by vendor Nationwide Legal LLC on
all counsel on August 31, 2020.
Jonathan A. Patchen, Esq. Counsel for Defendant, Martin DeBono
Daniel P. Martin, Esq.
Baker Botts L.L.P. Via Electronic Service
101 California Street, Suite 3600
San Francisco, CA 94111 .
Telephone: 415.291.6209
E-mail:
jonathan.patchen@bakerbotts.com
daniel.martin@bakerbotts.com
Cheryl A. Cauley, Esq. Counsel for Defendant, Martin DeBono
Baker Botts L.L.P.
1001 Page Mill Road Via Electronic Service
Building One, Suite 200
Palo Alto, CA 94304
Telephone: 650-739-7500
E-mail: cheryl.cauley@bakerbotts.com
John (Jay) Neukom, Esq. Counsel for Defendants, Standard/GAF
Caroline Van Ness, Esq. Energy
Michelle Kao, Esq.
Skadden, Arps, Slate, Meagher & Flom Via Electronic Service
LLP
525 University Avenue, Suite 1400
Palo Alto, CA 94301-1908
Telephone: 650.470.4560
E-mail:
john.neukom@skadden.com
Caroline. VanNess@skadden.com
Michelle.Kao@skadden.com
DMI\I1368895.1
PROOF OF SERVICESND nw B® WN
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Abraham A. Tabaie, Esq. Counsel for Defendants, Standard/GAF
Raza Rasheed, Esq. Energy
Skadden, Arps, Slate, Meagher & Flom LLP
300 S. Grand Avenue, Suite 3400 Via Electronic Service
Los Angeles, CA 90071
E-mail: atabaie@skadden.com
raza.rasheed@skadden.com
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Dated: August 31, 2020 /s/_ Jean Marie Reed
Jean Marie Reed
2
PROOF OF SERVICE
DMIN11368895.1
Preview
19CV349042 Santa Clara — Civil SNehistem SEMEN SUIRO, 2 GENTE _ ron coun UREN SUZANNE R. FOGARTY, ESQ. (SBN 154319) Electronically Filed DUANE MORRIS LLP by Superior Court of CA, One Market Plaza, Spear Tower, Suite 2200, San Francisco, CA 94105 TELEPHONE NO: 415-957-3000 FAX NO. (Optionay: 415-957-3001 E-MAIL ADDRESS (Optional): SHSutro@DuaneMorris.com / SRFogarty@DuaneMorris.com ATTORNEY FOR (Name): Plaintiff, SunPower Corporation (County of Santa Clara, lon 8/31/2020 8:13 PM Reviewed By: System System Case #19CV349042 ‘SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA STREET ADDRESS; 191 N. First Street MAILING ADDRESS: 191 N, First Street city AND zip conE: San Jose, California 95113 BRANCH NAME: Downtown Branch Envelope: 4859154 PLAINTIFF/PETITIONER: SunPower Corporation DEFENDANT/RESPONDENT: Martin DeBono, Standard Industries Inc., GAF Energy CASE MANAGEMENT STATEMENT CASE NUMBER: (Check one): [22] UNLIMITED CASE [ uimitep case TO ae (Amount demanded (Amount demanded is $25,000 exceeds $25,000) or less) (A CASE MANAGEMENT CONFERENCE is scheduled as follows: Date: September 15, 2020 Time: 10:00 a.m. Dept.: 21 Div.: Room: Address of court (if different from the address above): 161 N. First Street, San Jose, CA 95113 [__] Notice of Intent to Appear by Telephone, by (name): Stephen H. Sutro and Suzanne R. Fogarty INSTRUCTIONS: All applicable boxes must be checked, and the specified information must be provided. 1. Party or parties (answer one): a. [__] This statement is submitted by party (name): b. [5<] This statement is submitted jointly by parties (names): See attachment 1.b. 2. Complaint and cross-complaint (to be answered by plaintiffs and cross-complainants only) a. The complaint was filed on (date): June 14, 2019 b. [3c] The cross-complaint, if any, was filed on (date): March 30, 2020 and August 6, 2020 3. Service (fo be answered by plaintiffs and cross-complainants only) a. [3] All parties named in the complaint and cross-complaint have been served, have appeared, or have been dismissed. b. [_] The following parties named in the complaint or cross-complaint (1) [_] have not been served (specify names and explain why not): (2) [] have been served but have not appeared and have not been dismissed (specify names): (3) [_] have had a default entered against them (specify names): c. [__] The following additional parties may be added (specify names, nature of involvement in case, and date by which they may be served): 4. Description of case a. Type of case in SunPower’s claims: duty of loyalty. Standard/GAF Energy cross-complaint: UCL. complaint ([] cross-complaint (Describe, including causes of action): isappropriation and threatened misappropriation of trade secrets, breach of contract and breach of the Form Adopted for Mandatory Use CASE MANAGEMENT STATEMENT Jusicia! Counell of California CM-110 [Rev. July 1, 2011] Page 1 ofS Cal, Rules of Court, nules 3.720-3.730 www.courts.ca.govCM-110 PLAINTIFF/PETITIONER: SunPower Corporation CASE NUMBER: DEFENDANT/RESPONDENT: Martin DeBono, Standard Industries Inc., GAF Eneray _ 4.b. Provide a brief statement of the case, including any damages. (If personal injury damages are sought, specify the injury and damages claimed, including medical expenses to date [indicate source and amount}, estimated future medical expenses, lost eamings to date, and estimated future lost eamings. If equitable relief is sought, describe the nature of the relief.) See attachment 4. b. [_] (if more space is needed, check this box and attach a page designated as Attachment 4b.) 5, Jury or nonjury trial a. The party or parties request [_x_] a jury trial [-} anonjury trial. (!f more than one party, provide the name of each party requesting a jury trial): 6. Trial date a. [__] The trial has been set for (date): b. [5¢] No trial date has been set. This case will be ready for trial within 12 months of the date of the filing of the complaint (if not, explain): See attachment 6.b. c, Dates on which parties or attorneys will not be available for trial (specify dates and explain reasons for unavailability): 7. Estimated length of trial The party or parties estimate that the trial will take (check one): a. [4<] days (specify number): See attachment 7. b. [J] hours (short causes) (specify): 8. Trial representation (to be answered for each party) The party or parties will be represented at trial [__] by the attorney or party listed in the caption [1] by the following: a. Attorney: Steven H. Sutro (SBN 172168) b, Firm: Duane Morris LLP c. Address: One Market, Spear Tower, Suite 2200, San Francisco CA 94105 d. Telephone number: 415-957-3000 f. Fax number: 415-957-3001 e. E-mail address; shsutro@duanemorris.com g. Party represented: SunPower Corporation Additional representation is described in Attachment 8. 9. Preference [1 This case is entitled to preference (specify code section): 10. Alternative dispute resolution (ADR) a. ADR information package. Please note that different ADR processes are available in different courts and communities; read the ADR information package provided by the court under rule 3.221 for information about the processes available through the court and community programs in this case. (1) For parties represented by counsel: Counsel [x] has [__] hasnot provided the ADR information package identified in rule 3.221 to the client and reviewed ADR options with the client. (2) For self-represented parties: Party [4] has [__] has not reviewed the ADR information package identified in rule 3.221. b. Referral to judicial arbitration or civil action mediation (if available). (1) [J This matter is subject to mandatory judicial arbitration under Code of Civil Procedure section 1141.11 or to civil action mediation under Code of Civil Procedure section 1775.3 because the amount in controversy does not exceed the statutory limit. (2)f Plaintiff elects to refer this case to judicial arbitration and agrees to limit recovery to the amount specified in Code of Civil Procedure section 1141.11. (3) 7] This case is exempt from judicial arbitration under rule 3.811 of the California Rules of Court or from civil action mediation under Code of Civil Procedure section 1775 et seq. (specify exemption): Page 20f 6 ol CASE MANAGEMENT STATEMENTCM-110 PLAINTIFF/PETITIONER: SunPower Corporation CASE NUMBER: DEFENDANT/RESPONDENT: Martin DeBono, Standard Industries Inc., GAF Energy 19CV349042 10. c. Indicate the ADR process or processes that the party or parties are willing to participate in, have agreed to participate in, or have already participated in (check all that apply and provide the specified information): ‘The party or parties completing _|If the party or parties completing this form in the case have agreed to this form are willing to participate in or have already completed an ADR process or processes, participate in the following ADR _|indicate the status of the processes (attach a copy of the parties' ADR processes (check aif that apply): |stipulation): {_] Mediation session not yet scheduled (J Mediation session scheduled for (date): [7] Agreed to complete mediation by (date): [J Mediation completed on (date): August 20, 2020 (1) Mediation cd [-) Settlement conference not yet scheduled (2) Settlement oo [—] Settlement conference scheduled for (date): conference [-) Agreed to complete settlement conference by (date): [] Settlement conference completed on (date): {[_] Neutral evaluation not yet scheduled () Neutral evaluation scheduled for (date): [_) Agreed to complete neutral evaluation by (date): (] Neutral evaluation completed on (date): (3) Neutral evaluation [) Judicial arbitration not yet scheduled (4) Nonbinding judicial | [} Judicial arbitration scheduled for (date): arbitration [) Agreed to complete judicial arbitration by (date): [) Judicial arbitration completed on (date): [) Private arbitration not yet scheduled (6) Binding private | [5 Private arbitration scheduled for (date): arbitration [7 Agreed to complete private arbitration by (date): [_] Private arbitration completed on (date): (J ADR session not yet scheduled (J ADR session scheduled for (date): [1 Agreed to complete ADR session by (date): [J ADR completed on (date): (6) Other (specify): [a] CMM-110 [Rev. July 1, 2011] Page 3 of 5 CASE MANAGEMENT STATEMENTCM-110 PLAINTIFF/PETITIONER: SunPower Corporation CASE NUMBER: DEFENDANT/RESPONDENT: Martin DeBono, Standard Industries Inc., GAF Energy tecva4en42 11. Insurance a. [__] Insurance carrier, if any, for party filing this statement (name): b. Reservation of rights: [__] Yes [__] No c. [__] Coverage issues will significantly affect resolution of this case (explain): 12. Jurisdiction Indicate any matters that may affect the court's jurisdiction or processing of this case and describe the status. (5 Bankruptey [—_] Other (specify): Status: 13. Related cases, consolidation, and coordination a. [-_] There are companion, underlying, or related cases. (1) Name of case: (2) Name of court: (3) Case number: (4) Status: [4c] Additional cases are described in Attachment 13a. b. [-_] A motion to [J consolidate [-) coordinate will be filed by (name party): 14, Bifurcation [_] The party or parties intend to file a motion for an order bifurcating, severing, or coordinating the following issues or causes of action (specify moving party, type of motion, and reasons): 15, Other motions The party or parties expect to file the following motions before trial (specify moving party, type of motion, and issues): See attachment 15. 16. Discovery a. [__] The party or parties have completed all discovery. b. [3c] The following discovery will be completed by the date specified (describe all anticipated discovery): Party Description Date see attachment 16.b. c. [4] The following discovery issues, including issues regarding the discovery of electronically stored information, are anticipated (specify): See attachmnet 16. c. Tee Ee) CASE MANAGEMENT STATEMENT eeCM-110 PLAINTIFF/PETITIONER: SunPower Corporation CASE NUMBER: DEFENDANT/RESPONDENT: Martin DeBono, Standard Industries Inc., GAF Energy 19CV349042 17. Economic litigation a. ! This is a limited civil case (i.e., the amount demanded is $25,000 or less) and the economic litigation procedures in Code of Civil Procedure sections 90-98 will apply to this case. b. [_] This is a limited civil case and a motion to withdraw the case from the economic litigation procedures or for additional discovery will be filed (if checked, explain specifically why economic litigation procedures relating to discovery or trial should not apply to this case): 18. Other issues [) The party or parties request that the following additional matters be considered or determined at the case management conference (specify): 19. Meet and confer a. [_] The party or parties have met and conferred with all parties on all subjects required by rule 3.724 of the California Rules of Court (if not, explain): The parties have met and conferred regarding the Case Management Statement. b. [_] After meeting and conferring as required by rule 3.724 of the California Rules of Court, the parties agree on the following (specify): 20. Total number of pages attached (if any): 12 ! am completely familiar with this case and will be fully prepared to discuss the status of discovery and alternative dispute resolution, as well as other issues raised by this statement, and will possess the authority to enter into stipulations on these issues at the time of the case management conference, including the written authority of the party where required. Date: August 31, 2020 Suganne 2 Guy Stephen H. Sutro, Esq. and Suzanne R. Fogarty, Esq. > a (TYPE OR PRINT NAME) {SIGNATURE OF PARTY OR ATTORNEY) Raza Rasheed, Esq. > Rage Rashirdl (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY) [&) Additional signatures are attached. Page of 5 eo CASE MANAGEMENT STATEMENT For your protection and privacy, please press the Clear This Form button after you have printed the form. Save this formAttachment 1.b This Statement is jointly submitted by: Plaintiff SunPower Corporation and Defendants Standard Industries Inc., GAF Energy LLC, and Martin DeBono. DMI\I1384011 4Attachment 4.b SunPower’s Statement of the Case: This case arose because defendant Martin DeBono (“DeBono”), a former high-level SunPower executive, took well over a thousand of SunPower’s files containing key confidential and trade secret information in connection with his departure from SunPower, and then repeatedly lied in an attempt to cover up his actions. After forensic evidence revealed that not only did Mr. DeBono take SunPower’s trade secret information, by uploading over 1,700 SunPower files to a private OneDrive cloud storage account and emailing other documents to his private email, but he later actually accessed and used SunPower’s trade secret information while working as the lead executive head of solar for his new employer Standard/GAF Energy, Defendants refused to provide competent forensic evidence that they were not continuing to use SunPower’s stolen information to compete in the solar market. SunPower thus, out of necessity, is pursuing litigation to protect its trade secrets and intellectual know-how that is the product of tens of millions of dollars of investment over a period of many years. Defendants’ new theory that DeBono “did not realize that SunPower documents remained in the cloud repository of his personal OneDrive account” is belied by forensic evidence that demonstrates that while working as Standard’s new head of solar, DeBono accessed confidential and trade secret SunPower documents in his OneDrive account to use for his work at Standard. For example, while Standard was trying to recruit SunPower’s Senior Director, Digital Project Management, Jake Wachman, DeBono accessed SunPower’s confidential and proprietary roadmap on how to develop a digital customer experience — an area within Mr. Wachman’s domain at SunPower. (Digital tools are critical to residential and commercial solar sales and service because they reduce the additional costs associated with manual estimating, pricing and design.) DeBono also accessed confidential SunPower reports that include data on SunPower employee salaries and benefits during this period. For the past year, Defendants’ primary tactic to avoid transparency into what has been done with SunPower’s trade secret and confidential information has been to object to discovery under California Code of Civil Procedure Section 2019.210. Defendants have sought to take advantage of the fact that Mr. DeBono took such a large volume of information to argue that they “don’t understand” what SunPower’s trade secrets really are (and to attack the merits of SunPower’s claim before discovery, which is not permitted at this stage). Defendants’ ongoing objections under Section 2019.210 are inconsistent with California law. (See, Brescia v. Angelin (2009) 172 Cal.App.4th 133, 143 [“trade secret designation is to be liberally construed, and reasonable doubts regarding its adequacy are to be resolved in favor [of] allowing discovery to go forward.”); Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 836 [“[o]ur discovery statutes are designed to ascertain the truth, not suppress it. Any doubt about discovery is to be resolved in favor of disclosure.”]) Defendants mischaracterize the Court’s prior orders, SunPower’s two prior trade secret designation, and California law in their efforts to continue to stall discovery. SunPower has more than satisfied the requirements of Section 2019.210 to designate the trade secrets at issue in this litigation. DMI\11384011.4In addition to using Section 2019.210 as a weapon to obfuscate discovery, Defendants cast unfounded and inaccurate aspersions at SunPower and have looked for every opportunity to drive up legal costs and the expense of the proceedings — all of which could have been easily avoided if, as Defendants contend, they really have not kept or used SunPower’s information. Yet, despite that contention, Defendants continue to refuse reasonable discovery that would remove the mystery of all of this. SunPower has made no secret of its need for transparency. The question remains: what are defendants hiding? Just one example of Defendants’ efforts to drive up costs, is Standard/GAF Energy’s Standard’s meritless cross-claim against SunPower based on SunPower’s non-solicitation agreement with DeBono and other unspecified employees. The Court already held that non- solicitation provisions are unenforceable in its February 14, 2020 Order granting DeBono’s demurrer on this issue. Standard’s efforts to continue litigate an issue that is now moot are a transparent attempt to distract from SunPower’s misappropriation claim and to increase costs. Ironically, Standard’s own contract with DeBono prohibits him from soliciting Standard employees for twenty-four months “after the termination of his/her employment from the Company (for any reason).” SunPower does not believe Standard has a viable cause of action against SunPower. SunPower has filed a motion to compel discovery, which is scheduled for hearing on November 10, 2020. Once the stay of discovery is lifted and SunPower is able to conduct necessary discovery, SunPower will be in a better position to calculate the full extent of its damages for misappropriation of trade secrets beyond Mr. DeBono’s severance and the forensic investigation costs that SunPower has been forced to incur. SunPower also seeks a permanent injunction to protect its trade secrets from further disclosure and misuse by the Defendants. Defendants’ Statement of the Case: SunPower is a troubled enterprise that used to be a major player in the rooftop solar energy market, but has seen its position wither in recent years amidst stiff domestic and foreign competition. As SunPower’s market position has eroded, talented SunPower employees have left looking for better opportunities elsewhere. One of those employees is Martin DeBono, a former SunPower vice president and a current employee of GAF Energy. Seeking to stifle further personnel losses and wrongfully leverage the court system to harm a competitor, SunPower has brought the instant lawsuit against DeBono and his new employers (Standard and GAF Energy, collectively “Standard”), alleging unsupported claims of trade secret misappropriation. The litigation thus far has revealed that SunPower lacks any good faith basis for its claims. SunPower claims that DeBono stole sensitive documents containing trade secrets, but SunPower has thus far been entirely unable to identify what those alleged trade secrets are, and in reality the only “wrongful” conduct SunPower has alleged against DeBono is that he did not realize that SunPower documents remained in the cloud repository of his personal OneDrive. account, which had been used with SunPower’s approval, even though he had deleted them on his local computer.! Indeed, multiple forensic investigations have confirmed that none of the 1700+ : SunPower claims this is a new theory. Far from it. DeBono has been consistent since the inception of this case, as reflected by his Declaration in support of his opposition to SunPower's preliminary injunction motion, which was ultimately denied by the Court. DMIN11384011.4documents (which includes unrelated documents like DeBono’s tax information and pictures) are on Standard’s devices or servers. In fact, Judge Helen E. Williams of this Court has held, in her February 3, 2020 Order Denying Application for Preliminary Injunction, that: there is insufficient evidence indicating that [Standard] ever acquired (or otherwise misappropriated) any such documents. As to DeBono, there is limited evidence in the form of meta-data suggesting that he actually ‘accessed’ or ‘modified’ 12 documents after his employment with SunPower ended, but . . . such evidence appears insufficient to show by itself that SunPower is likely to prevail in a showing of ‘misappropriation’ against DeBono. Id, at 3:12-20. Setting aside evidence of use or misappropriation, SunPower cannot even define what the supposed “trade secrets” DeBono allegedly took are with requisite specificity under California Code of Civil Procedure section 2019.210 (“Section 2019.210”). SunPower has made numerous attempts to define its “trade secrets” with sufficient particularity, and has failed each time. On September 27, 2019, Judge Mark H. Pierce found that SunPower’s first trade secret designation was insufficient, and ordered a stay of discovery. Judge Williams agreed with Judge Pierce’s holding in denying SunPower’s application for a preliminary injunction. On April 21, 2020, Judge Thang N. Barrett found that SunPower’s second trade secret designation was similarly deficient, and refused to lift the discovery stay. Given that SunPower’s third (and most recent) designation suffers from the same problems as SunPower’s ill-fated prior trade secret disclosures, it is similarly noncompliant with Section 2019.210 such that the discovery stay should continue. Finally, Standard has brought a cross-complaint against SunPower for unfair trade practices in violation of California Business and Professions Code section 17200. Standard alleges that SunPower commonly weaponizes unlawful non-solicitation provisions in its employee contracts (as it has tried to do with DeBono) in order to further stifle employee mobility. These kinds of non-solicitation provisions have already been found to be unlawful—in fact, Judge Barrett held on February 14, 2020, that SunPower’s non-solicitation provision purporting to bar DeBono from recruiting current SunPower employees, was invalid as a matter of law. These non-solicitation provisions have caused Standard real harm—Standard has (i) suffered from the inability to use its executives to recruit candidates to build out its solar team; (ii) been forced to retain the services of a recruiting firm to recruit potential candidates at SunPower; (iii) resulted in increased recruiting costs; (iv) forced Standard to rely on less experienced employees to recruit candidates; (v) caused Standard to lose out on qualified SunPower candidates that would have otherwise been interested in coming to Standard; and (vi) otherwise hindered Standard’s lawful efforts to build out its solar team. Standard is requesting injunctive relief to prevent SunPower from including or enforcing its non-solicitation provisions in the future. DMN1384011.4Attachment 6.b SunPower’s Estimate: The parties stipulated to have this matter designated “complex” because of the legal complexity of SunPower’s claims and Defendants’ defenses, and the large amount of evidence and witnesses involved, (The application was denied by the Complex Department). The parties have already engaged in extensive pretrial motions and anticipate extensive further pre-trial motions raising novel and difficult legal issues that will be time-consuming to resolve. This matter will likely involve a large number of witnesses and substantial documentary evidence. SunPower has not yet been able to conduct any discovery because discovery has been stayed since September 27, 2019 because of the parties’ dispute over SunPower’s California Code of Civil Procedure Section 2019.210 Designation. SunPower served its amended trade secret designation on June 3, 2020 and has filed a motion to compel discovery, which is set for hearing on November 10, 2020. SunPower estimates that the case will be ready for trial approximately 12 months after the discovery stay is lifted and discovery commences. Defendants’ Estimate: At this time, Defendants are unable to offer any estimate of when this case will be ready for trial. Despite the fact that Plaintiff filed this lawsuit more than a year ago, no discovery has been exchanged because Plaintiff has repeatedly refused to designate the alleged trade secrets at issue in this action with reasonable particularity as required by California law. Plaintiff has also unlawfully refused to provide any discovery related to Standard’s and GAF Energy’s cross- complaint while its meritless demurrer is pending, further delaying matters. Because Plaintiff's improper conduct has repeatedly delayed the progression of this case, Defendants believe it is unlikely that this matter will be ready for trial within 12 months. ‘DMIM1384011.4Attachment 7 SunPower’s Estimate: SunPower’s estimate is 10 court days, not including any cross-claims. Defendants’ Estimate: Defendants currently estimate that trial will take 15 court days, all- inclusive. DMINI1384011.4Attachment 8 Jonathan A. Patchen, Esq. — Counsel for Defendant Martin DeBono Cheryl A. Cauley, Esq. Daniel P. Martin, Esq. Baker Botts L.L.P. 101 California Street, Suite 3600 San Francisco, CA 94111 Telephone: 415.291.6209 John (Jay) Neukom, Esq. — Counsel for Defs. Standard Industries, Inc. and GAF Energy LLC Abraham A. Tabaie, Esq. Caroline Van Ness, Esq. Raza Rasheed, Esq. Michelle Kao, Esq. Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue, Suite 1400 Palo Alto, CA 94301-1908 Telephone: 650.470.4560 DM1\11384011.4Attachment 13 SunPower’s Position: On June 20, 2019, SunPower filed a Notice of Related Case to relate this action to a separate action, SunPower Corporation v. Gabriela Bunea, (“Bunea action”) Case. No. 19-cv- 342228, against another SunPower former employee who also now works at Standard/GAF Energy. Defendants opposed relating the cases and they were not related by the Court. On April 11, 2019, SunPower and Dr. Bunea entered into a stipulation to stay the Bunea action pending arbitration. The arbitration is now proceeding in SunPower y. Bunea, AAA Case. No. 01-19- 0003-9663 (Arbitrator Dana Welch) (the “Bunea Arbitration”). The Bunea action is currently stayed. There are currently two Cross-Petitions arising from a discovery order issued by the Tribunal in the Bunea arbitration pending before this Court. Specifically, on July 12, 2020, the Tribunal issued an Order Granting SunPower’s Motion to Compel Compliance With Subpoenas against Dr. Bunea’s current employer, Standard Industries Inc. and GAF Energy LLC, defendants in this action but not parties to the Bunea arbitration. The Tribunal found that there was “good cause to order compliance with the subpoenas” and that “the discovery sought by the subpoenas is critical to a fair adjudication of SunPower’s claims against Dr. Bunea.” On July 22, 2020, SunPower commenced the action styled, SunPower Corporation v. Standard Industries Inc. and GAF Energy LLC, Case No. 20CV368636, by filing a Petitionto * Confirm and Enforce Arbitration Order (“SunPower Petition”). On July 28, 2020, Standard and GAF Energy commenced the action , styled, Standard Industries Inc. and GAF Energy LLC vy. SunPower Corporation, Case No. 20CV368810, by filing a Petition to Vacate Or Correct Discovery Order Of Arbitrator, Or In The Alternative, Motion For Protective Order. These actions and the Bunea action have been related by the Court and are assigned to the Honorable Sunil R. Kulkarni in Department 8, with a hearing scheduled for September 17, 2020 on the Petitions. Defendants’ Position: Defendants believe that the cross-petitions filed by SunPower on the one hand, and Standard and GAF Energy on the other, regarding to the Bunca arbitration tribunal’s unlawful third party discovery order, should be related with this action. DMIM11384011.4Attachment 15 SunPower’s Position: SunPower may file a motion for summary judgment or summary adjudication after discovery, including a motion regarding Standard/GAF Energy’s cross-claims. SunPower has also filed a motion to compel discovery responses. Defendants’ Position: Defendants will file a motion for summary judgment against SunPower’s claims, and a motion for sanctions for SunPower’s wrongful prosecution of this action long after it became clear that SunPower had no good faith basis for its claims. Defendants will also file a motion to compel responses to the discovery requests they have served on SunPower, and may file a motion for sanctions to address SunPower’s unlawful discovery misconduct. Standard and GAF Energy may also file a motion for summary judgment in Standard and GAF Energy’s favor on their respective cross-claims against SunPower. DMI1384011.4Attachment 16.b SunPower’s Discovery: SunPower have served Requests for Production, Interrogatories, and Requests for Admissions on Standard. SunPower has also served a deposition notice on Defendant DeBono. Defendants have thus far refused to respond to substantively to any of SunPower’s requests. Defendants contend that discovery is still stayed pursuant to the Court’s September 27, 2019 Order. SunPower served an amended trade secret designation on June 3, 2020. SunPower asked Defendants to agree that the discovery stay was lifted but Defendants refused to agree. SunPower has filed a motion to compel discovery. SunPower anticipates that it will need to serve additional discovery, including discovery regarding Standard/GAF Energy’s cross-complaint. Defendants’ Discovery: Defendants have served Requests for Production, Interrogatories, and Requests for Admissions on SunPower. SunPower has thus far, without any lawful basis, refused to respond substantively to these discovery requests, claiming that the Court’s order staying SunPower’s discovery stays Defendants’ discovery as well. Defendants are thus unable to provide any estimate for when discovery will be complete. 10 DMI\L138401 1.4Attachment 16.¢ SunPower’s Position: SunPower believes that this case would be resolved quickly if Defendants agreed to cooperate with SunPower’s reasonable requests targeted to confirm that Defendants are not still using the trade secret information that Mr. DeBono took from SunPower. Discovery, however, has been stayed pursuant to a September 27, 2019 Order regarding a dispute over SunPower's California Code of Civil Procedure 2019.210 trade secret designation. SunPower served an amended trade secret designation on June 3, 2020. SunPower has filed a motion to compel discovery, which is set for hearing on November 10, 2020. SunPower requests that the Court lift the stay of discovery so the parties can focus on the discovery they need to resolve this case or prepare for trial. SunPower contends that this is a complex case and that there is likely to be significant amount of document discovery and depositions. SunPower anticipates it will take at least 6-9 months to complete discovery once the stay is lifted, assuming there are not any other significant discovery disputes. Defendants’ Position: Three different Judges of this Court have held that SunPower’s prior attempts to designate its alleged trade secrets with reasonable particularity are inadequate as a matter of law. Despite this copious judicial guidance, SunPower’s third attempt a trade secret designation repeats the errors this Court identified in its previous two attempts, and thus the stay of trade secret discovery entered against SunPower should not be lifted. Separately, SunPower has refused to provide any of the discovery requested by Defendants, arguing disingenuously that the stay of discovery entered against SunPower is a basis for SunPower to refuse to provide any discovery of its own. Defendants anticipate filing a motion to compel responses to their discovery requests, and may file a motion for sanctions to address SunPower’s discovery misconduct. il DMIN11384011.4Additional Signature Jonathan A. Patchen, Esq Counsel for Defendant Martin DeBono 12 DMIN11384011.4PROOF OF SERVICE SunPower Corporation v. Martin DeBono, Standard Industries, Inc., GAF Energy; and DOES 1 - 100 Santa Clara County Superior Court, Action No. 19CV349042 lam a citizen of the United States, over the age of 18 years, and not a party to interested in the cause. J am an employee with Duane Morris LLP and my business address is One Market Plaza, Spear Tower, Suite 2200, San Francisco, California 94105. I am readily familiar with this firm’s practices for collecting and processing correspondence for mailing with the United States Postal Service and for transmitting documents by FedEx, fax, email, messenger and other modes. On the 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 date stated below, I served the following documents: bs CASE MANAGEMENT STATEMENT; ATTACHMENTS BY ELECTRONIC SERVICE: VIA E-Service by vendor Nationwide Legal LLC on all counsel on August 31, 2020. Jonathan A. Patchen, Esq. Counsel for Defendant, Martin DeBono Daniel P. Martin, Esq. Baker Botts L.L.P. Via Electronic Service 101 California Street, Suite 3600 San Francisco, CA 94111 . Telephone: 415.291.6209 E-mail: jonathan.patchen@bakerbotts.com daniel.martin@bakerbotts.com Cheryl A. Cauley, Esq. Counsel for Defendant, Martin DeBono Baker Botts L.L.P. 1001 Page Mill Road Via Electronic Service Building One, Suite 200 Palo Alto, CA 94304 Telephone: 650-739-7500 E-mail: cheryl.cauley@bakerbotts.com John (Jay) Neukom, Esq. Counsel for Defendants, Standard/GAF Caroline Van Ness, Esq. Energy Michelle Kao, Esq. Skadden, Arps, Slate, Meagher & Flom Via Electronic Service LLP 525 University Avenue, Suite 1400 Palo Alto, CA 94301-1908 Telephone: 650.470.4560 E-mail: john.neukom@skadden.com Caroline. VanNess@skadden.com Michelle.Kao@skadden.com DMI\I1368895.1 PROOF OF SERVICESND nw B® WN 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Abraham A. Tabaie, Esq. Counsel for Defendants, Standard/GAF Raza Rasheed, Esq. Energy Skadden, Arps, Slate, Meagher & Flom LLP 300 S. Grand Avenue, Suite 3400 Via Electronic Service Los Angeles, CA 90071 E-mail: atabaie@skadden.com raza.rasheed@skadden.com I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: August 31, 2020 /s/_ Jean Marie Reed Jean Marie Reed 2 PROOF OF SERVICE DMIN11368895.1