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BRUCE A. SCHEIDT, State Bar No. 155088
bscheidi@kmtg.com
CHRISTOPHER ONSTOTT, State Bar No. 225968
constott@kmtg.com
ERROL C. DAUIS, State Bar No. 279313
edauis@kmtg.com
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
400 Capitol Mall, 27" Floor
Sacramento, California 95814
Telephone: (916) 321-4500
Facsimile: (916) 321-4555
Attorneys for Plaintiff/Cross-Defendant
GOLDEN PACIFIC BANK, N.A.
ELECTRONICALLY
FILED
Supertor Court of Caitfornia,
County of San Francisco
09/22/2016
Clerk of the Court
BY-MADONNA CARANTO.
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
GOLDEN PACIFIC BANK, N.A.,
Plaintiff,
v.
BILLFLOAT, INC., RYAN GILBERT, SEAN
O'MALLEY, and DOES 1-50, inclusive,
Defendants.
BILLFLOAT, INC.
Cross-Complainant,
Vv.
GOLDEN PACIFIC BANK, N.A., and ROES
1-50,
Cross-Defendants.
1492056.1 14023-004
Case No. CGC-16-549804
DISCOVERY
DECLARATION OF ERROL C. DAUIS IN
SUPPORT OF GOLDEN PACIFIC
BANK'S OPPOSITION TO BILLFLOAT'S
MOTION TO COMPEL FURTHER
RESPONSES TO FORM.
INTERROGATORIES, SET ONE,
SPECIAL INTERROGATORIES, SET
ONE, AND DEMAND FOR INSPECTION,
SET ONE
Date: October 5, 2016
Time: 9:00 a.m.
Dept.: 302
Case Transferred
from Sacramento County: January 11, 2016
Trial Date: None Set
DECLARATION OF ERROL C. DAUIS IN SUPPORT OF GOLDEN PACIFIC BANK'S OPPOSITION TO
BILLFLOAT'S MOTION TO COMPEL FURTHER RESPONSESRw Nn
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I, Errol C. Dauis, declare as follows:
1. I am an attorney duly admitted to practice before this Court. I am an associate with
Kronick, Moskovitz, Tiedemann & Girard, attorneys of record for Plaintiff/Cross-Defendant
GOLDEN PACIFIC BANK, N.A. ("Golden Pacific" or "GPB"). I have personal knowledge of the
facts set forth herein, and if called as a witness, I could and would competently testify thereto. I
make this declaration in support of Golden Pacific's Opposition to Defendant/Cross-Complainant
BILLFLOAT, INC.'s (“BillFloat") Motion to Compel.
2. I received a meet-and-confer letter from William Webb, counsel for BillFloat,
addressed to Christopher Onstott, counsel for Golden Pacific. The 147-page letter set forth
requests for Golden Pacific to supplement numerous responses to BillFloat's first sets of Demands
for Inspection, Requests for Admission, Special Interrogatories, and Form Interrogatories.
Specifically, Mr. Webb's letter requested that Golden Pacific respond-by May 6, 2016, which
provided Golden Pacific with 10 days to produce supplemental responses to sixteen (16) Special
Interrogatories, seven (7) Form Interrogatories, and one (1) Request for Admission. In addition,
Mr. Webb also requested that Golden Pacific respond by May 13, 2016, which provided Golden
Pacific with 17 days to produce supplemental responses to eighty-three (83) Demands for
Inspection as well as additional documents. Attached hereto as EXHIBIT A is a true and correct
copy of Mr. Webb's 147-page letter addressed to Mr. Onstott dated April 26, 2016.
3. On May 4, 2016, I sent a letter to Mr. Webb in response to his April 26 letter and
requested additional time for Golden Pacific to respond to the contentions in Mr. Webb's 147-page
meet-and-confer letter. Attached hereto as EXHIBIT B is a true and correct copy of my letter to
Mr. Webb dated May 4, 2016.
4, Given the extensive number of contentions in Mr. Webb's 147-page meet-and-
confer letter, on May 31, 2016, I emailed Mr. Webb seeking an additional one week for Golden
Pacific to produce supplemental responses to BillFloat's Demands for Inspection, Request for
Admission, Special Interrogatories, and Form Interrogatories. Attached hereto as EXHIBIT C is
a true and correct copy of my email to Mr. Webb dated May 31, 2016.
Mi
1492056.1 14023-004 ; 1
DECLARATION OF ERROL C. DAUIS IN SUPPORT OF GOLDEN PACIFIC BANK'S OPPOSITION TO
BILLFLOAT'S MOTION TO COMPEL FURTHER RESPONSESB
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5. On May 31, 2016, Jennifer D. Yu of Mr. Webb's office responded to my email of
earlier that day and confirmed the extension of time for Golden Pacific to respond to Mr. Webb's
147-page meet-and-confer letter and produce supplemental responses to BillFloat's Demands for
Inspection, Request for Admission, Special Interrogatories, and Form Interrogatories. Attached
hereto as EXHIBIT D is a true and correct copy of Ms. Yu's letter to me dated May 31, 2016.
6. On June 7, 2016, Golden Pacific served supplemental responses to twenty-three
(23) Special Interrogatories, seven (7) Form Interrogatories, and one (1) Request for Admission.
Golden Pacific also served a privilege log corresponding to its document production. Attached
hereto as EXHIBIT E is a true and correct copy of Golden Pacific's Supplemental Response to
Special Interrogatories, Set No. One, Propounded by BillFloat. Attached hereto as EXHIBIT F is
a true and correct copy of Golden Pacific's Supplemental Response to Form Interrogatories, Set
No. One, Propounded by BillFloat. Attached hereto as EXHIBIT G is a true and correct copy of
Golden Pacific's Supplemental Response to Requests for Admission, Set No. One, Propounded by
BillFloat. Attached hereto as EXHIBIT H is a true and correct copy of Golden Pacific's Privilege
Log, Volume I.
7. In addition, on June 7, 2016, I sent a detailed letter in response to Mr, Webb's 147-
page meet-and-confer letter which outlined numerous deficiencies with the remainder of
BillFloat's Demands for Inspection, Special Interrogatories, and Form Interrogatories that
prevented Golden Pacific from supplementing those enumerated requests. Specifically, I noted
that there were numerous "issues that we would like to meet and confer with you about before
GPB can supplement its responses” to the requests addressed in Mr. Webb's 147-page meet-and-
confer letter that Golden Pacific was unable to supplement due to the deficiencies set forth in my
June 7 letter. Accordingly, I invited Mr. Webb to meet-and-confer on the remaining issues:
"Before GPB can further supplement its responses to the discovery requests enumerated [in the
June 7 letter], we will need to discuss reasonable limitations and narrowing the scope of the
requests so GPB may have a reasonable opportunity to respond." Attached hereto as EXHIBIT T
is a true and correct copy of my letter to Mr. Webb dated June 7, 2016.
Mit
1492056.t 14023-004 2
DECLARATION OF ERROI C. DAUIS IN SUPPORT OF GOLDEN PACIFIC BANK'S OPPOSITION TO
BILLFLOAT'S MOTION TO COMPEL FURTHER RESPONSESAR ww
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8. On June 17, 2016, Golden Pacific served supplemental responses to fifteen (15)
Demands for Inspection. Attached hereto as EXHIBIT J is a true and correct copy of Golden
Pacific's Supplemental Response to Demand for Inspection, Set No. One, Propounded by
BillFloat.
9. On June 29, 201 6, Golden Pacific produced additional documents in response to
BillFloat's Demand for Inspection, Set One, and a second privilege log. Attached hereto as
EXHIBIT K is a true and correct copy of correspondence dated June 29, 2016, sent to Mr. Webb
acknowledging service of supplemental documents. Attached hereto as EXHIBIT L is a true and
correct copy of Golden Pacific's Privilege Log, Volume II.
10. As of the date of filing Golden Pacific's Opposition to BillFloat's Motion to
Compel, I have not received any meet-and-confer letters or requests from Mr. Webb's office
regarding Golden Pacific's supplemental responses to BillFloat's Special Interrogatories, Form
Interrogatories, Requests for Admission, Demands for Inspection, service of two privilege logs, or
production of additional documents. Furthermore, as of the date of filing Golden Pacific's
Opposition to BillFloat's Motion to Compel, I have not received any response whatsoever to my
June 7, 2016, letter requesting that Mr. Webb mect-and-confer so that we could discuss the
numerous deficiencies in BillFloat's discovery requests which prevented Golden Pacific from
having a reasonable opportunity to supplement its responses.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed September A ; 2016, at Sacramento, California.
Errol C, Dauis
1492056.1 4023-004 3
DECLARATION OF ERROL C. DAUIS IN SUPPORT OF GOLDEN PACIFIC BANK'S OPPOSITION TO
BILLFLOAT'S MOTION TO COMPEL FURTHER RESPONSESEXHIBIT A155 Montgomery Street, Suite 1200
\ \ I San Francisco, CA 94104
(415) 277-7200
Wiesel ssa Bou (415) 277-7210 (fax)
www.webblegalgroup.com
April 26, 2016
Christopher Onstott, Esq.
Kronick Moskovitz Tiedemann & Girard
400 Capitol Mall, 27" Floor
Sacramento, CA 95814
Via E-MAIL (constott@kmtg.com)
Inre: BillFloat, Inc. v. Golden Pacific Bank, N.A.
Case No. CGC-15-547679
Dear Mr. Onstott:
This letter is to meet and confer with you about your deficient responses to Better
Finance’s first sets of Special Interrogatories, Inspection Demands, Requests for
Admission and Form Interrogatories propounded to Golden Pacific Bank, N.A.
After reviewing the responses to our discovery requests, we find many of the objections
to the requests to be lacking and the responses inadequate. Pursuant to California Code
of Civil Procedure sections 2016.040 and/or 2025.480 subdivision (b), please consider
this letter as our attempt to “meet and confer” prior to filing Motions to Compel Further
Responses.
As a preliminary matter, we have calendared May 11, 2016 as the final day upon which
to file a motion to compel on the special interrogatories, form interrogatories, and
requests for admission and July 15, 2016 as the final day upon which to file a motion to
compel on the inspection demands. This letter is written to discharge our duty to meet
and confer prior to filing such a motion. If you wish to provide supplemental responses,
or to further engage in the meet and confer process, but do not feel you will have the
ability to do so prior to May 6 for the special interrogatories, form interrogatories, and
requests for admission, or May 13 for the inspection demands, just let us know, and we
will extend the deadline within which to respond to this letter, so long as you grant us
corresponding extensions of time within which to file our motions.
In other words, if you need more time, no reasonable request will be denied so long
as you ask before noon on May 6, 2016 for the special interrogatories, form
interrogatories, and requests for admission, and May 13 for the inspection demands.
and so long as the request is accompanied by an equal extension of the amount ofLetter to Christopher Onstott, Esq.
April 26, 2016
Page 2 of 147
time we would have within which to file our motion to compel, which we have
calendared as above. If you believe we have miss-calendared these dates, please let
us know immediately.
Specifically, the discovery requests are deficient in the following ways.
Asa preliminary matter, if Plaintiff is withholding any documents based on privilege,
they should be included on a privilege log. (Hernandez v Superior Court (2003) 112
Cal.App.4” 285, 292.) By agreement, the Parties will disclose their respective privilege
logs on May 31, 2016. In writing this letter before that date, we are not waiving any
issues with the privilege log, and we will address that under separate cover at the
appropriate time.
We also note that although your client has produced documents GPB_0000001 through
GPB_ 0004544, on first review, they do not seem to include any internal documents —
only correspondence between our clients. Is it really your position that GPB generated
no documents internally in connection with the Parties joint venture? Please produce all
responsive documents immediately.
DEMAND FOR INSPECTIONS, SET ONE
DEMAND FOR INSPECTION NO. 1
Any and all DOCUMENTS upon which YOU rely in support of any answer to
any interrogatory contained in any set of Form Interrogatories served herewith.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney- client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overly broad and
unduly burdensome. Responding Party further objects to the extent that this request
violates the privacy rights of Responding Party and third parties in a manner that is
incommensurate with Propounding Party's needs. Responding Party further objects on the
ground that discovery has just commenced and is not yet completed, and therefore,
production is unreasonable until such time that all documents in Responding Party's
possession, custody, and control can be reviewed for production. Responding Party
reserves the right to amend this response.
REASON FURTHER RESPONSE IS NECESSARY
BOILERPLATE
First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct.
An objecting party must enumerate specific objections. Courts have held that a motion to
compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v.Letter to Christopher Onstott, Esq.
April 26, 2016
Page 3 of 147
Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions
for “boilerplate” objections).
OVERLY BROAD
You state that the request is overbroad, but you do not attempt to explain how this is so.
If there genuinely is an ambiguity that affects your ability to respond, please explain the
nature of the ambiguity, and we will work with you to clear it up.
VAGUE
You state that the request is vague and ambiguous, but you do not attempt to explain how
this is so. If there genuinely is an ambiguity that affects your ability to respond, please
explain the nature of the ambiguity, and we will work with you to clear it up.
DISCOVERY HAS JUST COMMENCED
You also object on the basis “ground that discovery has just commenced and is not yet
completed, and therefore, production is unreasonable until such time that all documents
in Responding Party's possession, custody, and control can be reviewed for production.”
This is not a basis for objecting and failing to provide documents. Please supplement
your response to provide a Code-compliant response confirming that you have provided
all responsive documents, and provide any documents you have withheld to this point.
THIRD PARTY PRIVACY
Generally, discovery is permissible if the requested information is “not privileged,” “is
relevant to the subject matter involved in the pending action,” and “appears reasonably
calculated to lead to the discovery of admissible evidence.” California Code of Civil
Procedure section 2017.010. “The court shall limit the scope of discovery if it determines
that the burden, expense, or intrusiveness of that discovery clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible evidence.”
California Code of Civil Procedure section 2017.020. The information sought is directly
relevant to the issues in this case.
DEMAND FOR INSPECTION NO. 2
Any and all DOCUMENTS that YOU consulted in connection with the
formulation of any answer to any interrogatory contained in any set of Form
Interrogatories served herewith.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney-client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overly broad andLetter to Christopher Onstott, Esq.
April 26, 2016
Page 4 of 147
unduly burdensome. Responding Party further objects to the extent that this request
violates the privacy rights of Responding Party and third parties in a manner that is
incommensurate with Propounding Party’s needs. Responding Party further objects on
the ground that discovery has just commenced and is not yet completed, and therefore,
production is unreasonable until such time that all documents in Responding Party's
possession, custody, and control can be reviewed for production. Responding Party
reserves the right to amend this response.
REASON FURTHER RESPONSE IS NECESSARY
BOILERPLATE
First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct.
An objecting party must enumerate specific objections. Courts have held that a motion to
compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v.
Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions
for “boilerplate” objections).
OVERLY BROAD
You state that the request is overbroad, but you do not attempt to explain how this is so.
If there genuinely is an ambiguity that affects your ability to respond, please explain the
nature of the ambiguity, and we will work with you to clear it up.
VAGUE
You state that the request is vague and ambiguous, but you do not attempt to explain how
this is so. If there genuinely is an ambiguity that affects your ability to respond, please
explain the nature of the ambiguity, and we will work with you to clear it up.
DISCOVERY HAS JUST COMMENCED
You also object on the basis “ground that discovery has just commenced and is not yet
completed, and therefore, production is unreasonable until such time that all documents
in Responding Party's possession, custody, and control can be reviewed for production.”
This is not a basis for objecting and failing to provide documents. Please supplement
your response to provide a Code-compliant response confirming that you have provided
all responsive documents, and provide any documents you have withheld to this point.
THIRD PARTY PRIVACY
Generally, discovery is permissible if the requested information is “not privileged,” “is
relevant to the subject matter involved in the pending action,” and “appears reasonably
calculated to lead to the discovery of admissible evidence.” California Code of Civil
Procedure section 2017.010. “The court shall limit the scope of discovery if it determines
that the burden, expense, or intrusiveness of that discovery clearly outweighs theLetter to Christopher Onstott, Esq.
April 26, 2016
Page 5 of 147
likelihood that the information sought will lead to the discovery of admissible evidence.”
California Code of Civil Procedure section 2017.020. The information sought is directly
relevant to the issues in this case.
DEMAND FOR INSPECTION NO. 3
Any and all DOCUMENTS upon which YOU rely in support of any answer to
any interrogatory contained in Special Interrogatories — Set One.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney-client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overly broad and
unduly burdensome. Responding Party further objects to the extent that this request
violates the privacy rights of Responding Party and third parties in a manner that is
incommensurate with Propounding Party's needs. Responding Party further objects on the
ground that discovery has just commenced and is not yet completed, and therefore,
production is unreasonable until such time that all documents in Responding Party's
possession, custody, and control can be reviewed for production. Responding Party
reserves the right to amend this response.
REASON FURTHER RESPONSE IS NECESSARY
BOILERPLATE
First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct.
An objecting party must enumerate specific objections. Courts have held that a motion to
compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v.
Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions
for “boilerplate” objections).
OVERLY BROAD
You state that the request is overbroad, but you do not attempt to explain how this is so.
If there genuinely is an ambiguity that affects your ability to respond, please explain the
nature of the ambiguity, and we will work with you to clear it up.
VAGUE
You state that the request is vague and ambiguous, but you do not attempt to explain how
this is so. If there genuinely is an ambiguity that affects your ability to respond, please
explain the nature of the ambiguity, and we will work with you to clear it up.
DISCOVERY HAS JUST COMMENCEDLetter to Christopher Onstott, Esq.
April 26, 2016
Page 6 of 147
You also object on the basis “ground that discovery has just commenced and is not yet
completed, and therefore, production is unreasonable until such time that all documents
in Responding Party's possession, custody, and control can be reviewed for production.”
This is not a basis for objecting and failing to provide documents. Please supplement
your response to provide a Code-compliant response confirming that you have provided
all responsive documents, and provide any documents you have withheld to this point.
THIRD PARTY PRIVACY
Generally, discovery is permissible if the requested information is “not privileged,” “is
relevant to the subject matter involved in the pending action,” and “appears reasonably
calculated to lead to the discovery of admissible evidence.” California Code of Civil
Procedure section 2017.010. “The court shall limit the scope of discovery if it determines
that the burden, expense, or intrusiveness of that discovery clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible evidence.”
California Code of Civil Procedure section 2017.020. The information sought is directly
relevant to the issues in this case.
DEMAND FOR INSPECTION NO. 4
Any and all DOCUMENTS that YOU consulted in connection with the
formulation of any answer to any interrogatory contained in Special Interrogatories — Set
One.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney-client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overly broad and
unduly burdensome. Responding Party further objects to the extent that this request
violates the privacy rights of Responding Party and third parties in a manner that is
incommensurate with Propounding Party's needs. Responding Party further objects on the
ground that discovery has just commenced and is not yet completed, and therefore,
production is unreasonable until such time that all documents in Responding Party's
possession, custody, and control can be reviewed for production. Responding Party
reserves the right to amend this response.
REASON FURTHER RESPONSE IS NECESSARY
BOILERPLATE
First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct.
An objecting party must enumerate specific objections. Courts have held that a motion to
compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v.Letter to Christopher Onstott, Esq.
April 26, 2016
Page 7 of 147
Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions
for “boilerplate” objections).
OVERLY BROAD
You state that the request is overbroad, but you do not attempt to explain how this is so.
If there genuinely is an ambiguity that affects your ability to respond, please explain the
nature of the ambiguity, and we will work with you to clear it up.
VAGUE
You state that the request is vague and ambiguous, but you do not attempt to explain how
this is so. If there genuinely is an ambiguity that affects your ability to respond, please
explain the nature of the ambiguity, and we will work with you to clear it up.
DISCOVERY HAS JUST COMMENCED
You also object on the basis “ground that discovery has just commenced and is not yet
completed, and therefore, production is unreasonable until such time that all documents
in Responding Party's possession, custody, and control can be reviewed for production.”
This is not a basis for objecting and failing to provide documents. Please supplement
your response to provide a Code-compliant response confirming that you have provided
all responsive documents, and provide any documents you have withheld to this point.
THIRD PARTY PRIVACY
Generally, discovery is permissible if the requested information is “not privileged,” “is
relevant to the subject matter involved in the pending action,” and “appears reasonably
calculated to lead to the discovery of admissible evidence.” California Code of Civil
Procedure section 2017.010. “The court shall limit the scope of discovery if it determines
that the burden, expense, or intrusiveness of that discovery clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible evidence.”
California Code of Civil Procedure section 2017.020. The information sought is directly
relevant to the issues in this case.
DEMAND FOR INSPECTION NO. 5
Any and all DOCUMENTS consisting of, pertaining to, relating or referring to
any and all DOCUMENTS pertaining to the development of the GOLD STANDARD
technology after December 5, 2013.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney-client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overbroad, undulyLetter to Christopher Onstott, Esq.
April 26, 2016
Page 8 of 147
burdensome, vague, and ambiguous. Responding Party further objects to the extent that
this request violates the privacy rights of Responding Party and third parties in a manner
that is incommensurate with Propounding Party's needs. Responding Party further objects
on the ground that discovery has just commenced and is not yet completed, and therefore,
production is unreasonable until such time that all documents in Responding Party's
possession, custody, and control can be reviewed for production. Responding Party
reserves the right to amend this response. Subject to, and without waiving the foregoing
objections, Responding Party responds as follows:
Construing the definition of "GOLD STANDARD" to be the definition in Exhibit
A of the CONTRACT and/or Exhibit A of the MARKETING AGREEMENT,
Responding Party will produce all non-privileged DOCUMENTS that constitute or refer
to the development of the GOLD STANDARD technology between December 5, 2013
and August 31, 2015, that Responding Party has located after a reasonable and diligent
search.
REASONABLE AND DILIGENT SEARCH
The responding party shall respond with either:
(1) A statement that the party will comply with the particular demand for inspection,
copying, testing, or sampling by the date set for the inspection, copying, testing, or
sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any
related activities.
(2) A representation that the party lacks the ability to comply with the demand for
inspection, copying, testing, or sampling of a particular item or category of item.
(3) An objection to the particular demand for inspection, copying, testing, or sampling.
Code of Civil Procedure section 2031.210. Please provide a Code-compliant response to
the request as propounded.
NON-RESPONSIVE
This request seeks “Any and all DOCUMENTS consisting of, pertaining to, relating or
referring to any and all DOCUMENTS pertaining to the development of the GOLD
STANDARD technology after December 5, 2013.” Your response states that you “will
produce all non-privileged DOCUMENTS that constitute or refer to the development of
the GOLD STANDARD technology between December 5, 2013 and August 31, 2015.”
That is not what this request seeks. Please provide a Code-compliant response to the
request as propounded.
REASON FURTHER RESPONSE IS NECESSARY
IMPROPER NARROWING OF REQUESTLetter to Christopher Onstott, Esq.
April 26, 2016
Page 9 of 147
You attempt to limit this request to a certain time period from December 5, 2013 to
August 31, 2015. This request is not so limited with respect to the time period of
documents requested. Among other things, the Parties’ joint venture has never been
terminated, and the attendant fiduciary duties GPB owes Better Finance have continued
until this date and beyond, making documents relevant outside of your narrowed time
frame.
Please confirm that all responsive documents have been provided in the documents
GPB_0000001 through GPB_0004544, and supplement your response to provide
documents following August 31, 2015.
DEMAND FOR INSPECTION NO. 7
Any and all DOCUMENTS consisting of, pertaining to, relating or referring to
any and all costs for the improvement of the SmartBiz Brand IP.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney-client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overbroad, unduly
burdensome, vague, and ambiguous. Responding Party further objects to the extent that
this request seeks documents in Propounding Party's possession or equally available to
Propounding Party from sources other than Responding Party. Responding Party further
objects to the extent that this request violates the privacy rights of Responding Party and
third parties in a manner that is incommensurate with Propounding Party's needs.
Responding Party further objects on the ground that discovery has just commenced and is
not yet completed, and therefore, production is unreasonable until such time that all
documents in Responding Party's possession, custody, and control can be reviewed for
production. Responding Party reserves the right to amend this response. Subject to, and
without waiving the foregoing objections, Responding Party responds as follows:
Contingent upon Responding Party and Propounding Party meeting and
conferring to limit the scope of the request, define the term "improvement," and identify
specific individuals relevant to this request, Responding Party will produce all non-
privileged DOCUMENTS created by, sent by, or received by individuals specified by
Responding Party and Propounding Party that refer to costs for the improvement of the
SmartBiz Brand IP, that Responding Party has located after a reasonable and diligent
search,
REASON FURTHER RESPONSE IS NECESSARY
“IMPROVEMENT”
The term “improvement” is not vague or ambiguous. It is used in the parties’ contracts
and is also used in the complaint you filed.Letter to Christopher Onstott, Esq.
April 26, 2016
Page 10 of 147
NON-RESPONSIVE
This request asks for “[a]ny and all DOCUMENTS consisting of, pertaining to, relating
or referring to any and all costs for the improvement of the SmartBiz Brand IP.” Your
response refers to ‘DOCUMENTS created by, sent by, or received by individuals . . .
that refer to costs for the improvement of the SmartBiz Brand IP.” This request is not so
limited. Please provide a Code-compliant response to the request as propounded.
REASONABLE AND DILIGENT SEARCH
The responding party shall respond with either:
(1) A statement that the party will comply with the particular demand for inspection,
copying, testing, or sampling by the date set for the inspection, copying, testing, or
sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any
related activities.
(2) A representation that the party lacks the ability to comply with the demand for
inspection, copying, testing, or sampling of a particular item or category of item.
(3) An objection to the particular demand for inspection, copying, testing, or sampling.
Code of Civil Procedure section 2031.210. Please provide a Code-compliant response to
the request as propounded.
DEMAND FOR INSPECTION NO. 8
Any and all DOCUMENTS consisting of, pertaining to, relating or referring to
any and all income generated by GPB’s joint ownership of the GOLD STANDARD
technology from 2013 to the present.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney-client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overbroad, unduly
burdensome, vague, and ambiguous. Responding Party further objects to the extent that
this request violates the privacy rights of Responding Party and third parties in a manner
that is incommensurate with Propounding Party's needs. Responding Party further objects
on the ground that discovery has just commenced and is not yet completed, and therefore,
production is unreasonable until such time that all documents in Responding Party's
possession, custody, and control can be reviewed for production.
Responding Party reserves the right to amend this response. Subject to, and
without waiving the foregoing objections, Responding Party responds as follows:
Construing the definition of "GOLD STANDARD" to be the definition in Exhibit A of
the CONTRACT and/or Exhibit A of the MARKETING AGREEMENT, RespondingLetter to Christopher Onstott, Esq.
April 26, 2016
Page 11 of 147
Party will produce any non-privileged reports that reference income generated by GPB's
ownership of the GOLD STANDARD technology from 2013 to August 31, 2015, that
Responding Party has located after a reasonable and diligent search.
REASON FURTHER RESPONSE IS NECESSARY
IMPROPER NARROWING OF REQUEST
You attempt to limit this request to a certain time period from January 1, 2013 to August
31, 2015 when this requests asks for documents from January 1, 2013 to the present.
This request is not so limited with respect to the time period of documents requested.
Among other things, the Parties’ joint venture has never been terminated, and the
attendant fiduciary duties GPB owes Better Finance have continued until this date and
beyond, making documents relevant outside of your narrowed time frame.
Please confirm that all responsive documents have been provided in the documents
GPB_0000001 through GPB_0004544, and supplement your response to provide
documents following August 31, 2015.
NON-RESPONSIVE
This request asks for “[a]ny and all DOCUMENTS consisting of, pertaining to,
relating or referring to any and all income generated by GPB’s joint ownership of the
GOLD STANDARD technology from 2013 to the present.” Your response states that
you “will produce any non-privileged reports that reference income generated by
GPB’s ownership of the GOLD STANDARD technology. . ..”. That is not what the
request seeks. Please provide a Code-compliant response to the request as propounded.
REASONABLE AND DILIGENT SEARCH
The responding party shall respond with either:
(1) A statement that the party will comply with the particular demand for inspection,
copying, testing, or sampling by the date set for the inspection, copying, testing, or
sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any
related activities.
(2) A representation that the party lacks the ability to comply with the demand for
inspection, copying, testing, or sampling of a particular item or category of item.
(3) An objection to the particular demand for inspection, copying, testing, or sampling.
Code of Civil Procedure section 2031.210. Please provide a Code-compliant response to
the request as propounded.
DEMAND FOR INSPECTION NO. 9Letter to Christopher Onstott, Esq.
April 26, 2016
Page 12 of 147
Any and all DOCUMENTS consisting of, or pertaining, relating or referring to,
any and all drafts of the CONTRACT.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney-client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overbroad, unduly
burdensome, vague, and ambiguous. Responding Party further objects to the extent that
this request seeks documents in Propounding Party's possession or equally available to
Propounding Party from sources other than Responding Party. Responding Party further
objects to the extent that this request violates the privacy rights of Responding Party and
third parties in a manner that is incommensurate with Propounding Party's needs.
Responding Party further objects on the ground that discovery has just commenced and is
not yet completed, and therefore, production is unreasonable until such time that all
documents in Responding Party's possession, custody, and control can be reviewed for
production. Responding Party reserves the right to amend this response. Subject to, and
without waiving the foregoing objections, Responding Party responds as follows:
Responding Party will produce all non-privileged drafts of the CONTRACT that
Responding Party has located after a reasonable and diligent search.
REASON FURTHER RESPONSE IS NECESSARY
NON-RESPONSIVE
This request asks for “[a]ny and all DOCUMENTS consisting of, or pertaining, relating
or referring to, any and all drafts of the CONTRACT.” Your response states that you will
produce all “non-privileged drafts of the CONTRACT.” That is not what the request
seeks. Please provide a Code-compliant response to the request as propounded.
REASONABLE AND DILIGENT SEARCH
The responding party shall respond with either:
(1) A statement that the party will comply with the particular demand for inspection,
copying, testing, or sampling by the date set for the inspection, copying, testing, or
sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any
related activities.
(2) A representation that the party lacks the ability to comply with the demand for
inspection, copying, testing, or sampling of a particular item or category of item.
(3) An objection to the particular demand for inspection, copying, testing, or sampling.
Code of Civil Procedure section 2031.210. Please provide a Code-compliant response to
the request as propounded.Letter to Christopher Onstott, Esq.
April 26, 2016
Page 13 of 147
DEMAND FOR INSPECTION NO. 10
Any and all DOCUMENTS consisting of, or pertaining, relating or referring to,
the CONTRACT.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney-client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overbroad, unduly
burdensome, vague, and ambiguous. Responding Party further objects to the extent that
this request seeks documents in Propounding Party's possession or equally available to
Propounding Party from sources other than Responding Party. Responding Party further
objects to the extent that this request violates the privacy rights of Responding Party and
third parties in a manner that is incommensurate with Propounding Party's needs.
Responding Party further objects on the ground that discovery has just commenced and is
not yet completed, and therefore, production is unreasonable until such time that all
documents in Responding Party's possession, custody, and control can be reviewed for
production. Responding Party reserves the right to amend this response.
REASON FURTHER RESPONSE IS NECESSARY
BOILERPLATE
First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct.
An objecting party must enumerate specific objections. Courts have held that a motion to
compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v.
Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions
for “boilerplate” objections).
OVERLY BROAD
You state that the request is overbroad, but you do not attempt to explain how this is so.
If there genuinely is an ambiguity that affects your ability to respond, please explain the
nature of the ambiguity, and we will work with you to clear it up.
VAGUE
You state that the request is vague and ambiguous, but you do not attempt to explain how
this is so. If there genuinely is an ambiguity that affects your ability to respond, please
explain the nature of the ambiguity, and we will work with you to clear it up.
DISCOVERY HAS JUST COMMENCED
You also object on the basis “ground that discovery has just commenced and is not yet
completed, and therefore, production is unreasonable until such time that all documentsLetter to Christopher Onstott, Esq.
April 26, 2016
Page 14 of 147
in Responding Party's possession, custody, and control can be reviewed for production.”
This is not a basis for objecting and failing to provide documents. Please supplement
your response to provide a Code-compliant response confirming that you have provided
all responsive documents, and provide any documents you have withheld to this point.
EQUALLY AVAILABLE
Please explain your reasoning as to how it is you believe that these documents are equally
available to the Defendants. This objection is only available if you have to go get public
records (Bunnell v. Sup. Ct. (1967) Cal.App.2d 720, 723-724) or interview independent
witnesses (Holguin v. Sup Ct. (1972) 22 Cal.App.3d 812, 821) in order to answer the
questions. In this case, you do not have to do either, and so this is not a valid objection.
THIRD PARTY PRIVACY
Generally, discovery is permissible if the requested information is “not privileged,” “is
relevant to the subject matter involved in the pending action,” and “appears reasonably
calculated to lead to the discovery of admissible evidence.” California Code of Civil
Procedure section 2017.010. “The court shall limit the scope of discovery if it determines
that the burden, expense, or intrusiveness of that discovery clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible evidence.”
California Code of Civil Procedure section 2017.020. The information sought is directly
relevant to the issues in this case.
DEMAND FOR INSPECTION NO. 12
Any and all DOCUMENTS consisting of, pertaining to, relating or referring to
any and all COMMUNICATION with any PERSON concerning or referring to the
CONTRACT.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney-client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overbroad, unduly
burdensome, vague, and ambiguous. Responding Party further objects to the extent that
this request seeks documents in Propounding Party's possession or equally available to
Propounding Party from sources other than Responding Party. Responding Party further
objects to the extent that this request violates the privacy rights of Responding Party and
third parties in a manner that is incommensurate with Propounding Party's needs.
Responding Party further objects on the ground that discovery has just commenced and is
not yet completed, and therefore, production is unreasonable until such time that all
documents in Responding Party's possession, custody, and control can be reviewed for
production. Responding Party reserves the right to amend this response.Letter to Christopher Onstott, Esq.
April 26, 2016
Page 15 of 147
REASON FURTHER RESPONSE IS NECESSARY
BOILERPLATE
First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct.
An objecting party must enumerate specific objections. Courts have held that a motion to
compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v.
Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions
for “boilerplate” objections).
OVERLY BROAD
You state that the request is overbroad, but you do not attempt to explain how this is so.
If there genuinely is an ambiguity that affects your ability to respond, please explain the
nature of the ambiguity, and we will work with you to clear it up.
VAGUE
You state that the request is vague and ambiguous, but you do not attempt to explain how
this is so. If there genuinely is an ambiguity that affects your ability to respond, please
explain the nature of the ambiguity, and we will work with you to clear it up.
EQUALLY AVAILABLE
Please explain your reasoning as to how it is you believe that these documents are equally
available to the Defendants. This objection is only available if you have to go get public
records (Bunnell y. Sup. Ct. (1967) Cal.App.2d 720, 723-724) or interview independent
witnesses (Holguin v. Sup Ct. (1972) 22 Cal.App.3d 812, 821) in order to answer the
questions. In this case, you do not have to do either, and so this is not a valid objection.
DISCOVERY HAS JUST COMMENCED
You also object on the basis “ground that discovery has just commenced and is not yet
completed, and therefore, production is unreasonable until such time that all documents
in Responding Party's possession, custody, and control can be reviewed for production.”
This is not a basis for objecting and failing to provide documents. Please supplement
your response to provide a Code-compliant response confirming that you have provided
all responsive documents, and provide any documents you have withheld to this point.
THIRD PARTY PRIVACY
Generally, discovery is permissible if the requested information is “not privileged,” “is
relevant to the subject matter involved in the pending action,” and “appears reasonably
calculated to lead to the discovery of admissible evidence.” California Code of Civil
Procedure section 2017.010. “The court shall limit the scope of discovery if it determines
that the burden, expense, or intrusiveness of that discovery clearly outweighs theLetter to Christopher Onstott, Esq.
April 26, 2016
Page 16 of 147
likelihood that the information sought will lead to the discovery of admissible evidence.”
California Code of Civil Procedure section 2017.020. The information sought is directly
relevant to the issues in this case.
DEMAND FOR INSPECTION NO. 14
Any and all DOCUMENTS consisting of, pertaining to, relating or referring to
any and all COMMUNICATION with any PERSON concerning or referring to the need
to cancel, alter and/or amend the CONTRACT or any of its terms.
RESPONSE
Responding Party objects on the ground that this request demands production of
attorney-client privileged communications and attorney work product documents.
Responding Party further objects on the grounds that this request is overbroad, unduly
burdensome, vague, and ambiguous. Responding Party further objects to the extent that
this request seeks documents in Propounding Party's possession or equally available to
Propounding Party from sources other than Responding Party. Responding Party further
objects to the extent that this request violates the privacy rights of Responding Party and
third parties in a manner that is incommensurate with Propounding Party's needs.
Responding Party further objects on the ground that discovery has just commenced and is
not yet completed, and therefore, production is unreasonable until such time that all
documents in Responding Party's possession, custody, and control can be reviewed for
production. Responding Party reserves the right to amend this response. Subject to, and
without waiving the foregoing objections, Responding Party responds as follows:
Responding Party will produce any non-privileged DOCUMENTS that constitute
COMMUNICATION after July 23, 2014, that refer to the need to cancel, alter, and/or
amend the CONTRACT or any of its terms, that Responding Party has located after a
reasonable and diligent search.
REASON FURTHER RESPONSE IS NECESSARY
IMPROPER NARROWING OF REQUEST
You attempt to limit this request to a certain time period from July 23, 2014 to the
present. This request is not so limited with respect to the time period of documents
requested. We are entitled to explore whether, as expected, your client may have
intended to insist upon further amendment of the agreement, which would support
allegations of (among other things) fraud. This request is not so limited with respect to
the time period of documents requested. Among other things, the Parties’ joint venture
has never been terminated, and the attendant fiduciary duties GPB owes Better Finance
have continued until this date and beyond, making documents relevant outside of your
narrowed time frame. Please confirm that all responsive documents have been provided
in the documents GPB_0000001 through GPB_0004544, and supplement your response
to provide documents following August 31, 2015.Letter to Christopher Onstott, Esq.
April 26, 2016
Page 17 of 147
NON-RESPONSIVE
This request seeks “[a]ny and all DOCUMENTS consisting of, pertaining to, relating or
referring to any and all COMMUNICATION with any PERSON concerning or
referring to the need to cancel, alter and/or amend the CONTRACT or any of its terms.”
Your response states that you will produce “any non-privileged DOCUMENTS that
constitute COMMUNICATION after July 23, 2014, that refer to the need to cancel,
alter, and/or amend the CONTRACT or any of its terms.” That is not what the request
seeks. Please provide a Code-compliant response to the request as propounded.
REASONABLE AND DILIGENT SEARCH
The responding party shall respond with either:
(1) A statement that the party will comply with the particular demand for inspection,
copying, testing, or sampling by the date set for the inspection, copying, testing, or
sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any
related activities.
(2) A representation that the party lacks the ability to comply with the demand for
inspection, copying, testing, or sampling of a particular item or category of item.
(3) An objection to the particular demand for inspection, copying, testing, or sampling.
Code of Civil Procedure section 2031.210. Please provide a Code-compliant response to
the request as propounded.
DEMAND FOR INSPECTION NO. 16
Any and all DOCUMENTS consisting of, pertaining to, relating or referring to
any and all CORRESPONDENCE with any regulatory agency, including, but not limited
to, the United States Treasury Department’s Office of the Comptroller of the
Preview
ow a Co BRUCE A. SCHEIDT, State Bar No. 155088 bscheidi@kmtg.com CHRISTOPHER ONSTOTT, State Bar No. 225968 constott@kmtg.com ERROL C. DAUIS, State Bar No. 279313 edauis@kmtg.com KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation 400 Capitol Mall, 27" Floor Sacramento, California 95814 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 Attorneys for Plaintiff/Cross-Defendant GOLDEN PACIFIC BANK, N.A. ELECTRONICALLY FILED Supertor Court of Caitfornia, County of San Francisco 09/22/2016 Clerk of the Court BY-MADONNA CARANTO. Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO GOLDEN PACIFIC BANK, N.A., Plaintiff, v. BILLFLOAT, INC., RYAN GILBERT, SEAN O'MALLEY, and DOES 1-50, inclusive, Defendants. BILLFLOAT, INC. Cross-Complainant, Vv. GOLDEN PACIFIC BANK, N.A., and ROES 1-50, Cross-Defendants. 1492056.1 14023-004 Case No. CGC-16-549804 DISCOVERY DECLARATION OF ERROL C. DAUIS IN SUPPORT OF GOLDEN PACIFIC BANK'S OPPOSITION TO BILLFLOAT'S MOTION TO COMPEL FURTHER RESPONSES TO FORM. INTERROGATORIES, SET ONE, SPECIAL INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE Date: October 5, 2016 Time: 9:00 a.m. Dept.: 302 Case Transferred from Sacramento County: January 11, 2016 Trial Date: None Set DECLARATION OF ERROL C. DAUIS IN SUPPORT OF GOLDEN PACIFIC BANK'S OPPOSITION TO BILLFLOAT'S MOTION TO COMPEL FURTHER RESPONSESRw Nn Oo Oo IN HW I, Errol C. Dauis, declare as follows: 1. I am an attorney duly admitted to practice before this Court. I am an associate with Kronick, Moskovitz, Tiedemann & Girard, attorneys of record for Plaintiff/Cross-Defendant GOLDEN PACIFIC BANK, N.A. ("Golden Pacific" or "GPB"). I have personal knowledge of the facts set forth herein, and if called as a witness, I could and would competently testify thereto. I make this declaration in support of Golden Pacific's Opposition to Defendant/Cross-Complainant BILLFLOAT, INC.'s (“BillFloat") Motion to Compel. 2. I received a meet-and-confer letter from William Webb, counsel for BillFloat, addressed to Christopher Onstott, counsel for Golden Pacific. The 147-page letter set forth requests for Golden Pacific to supplement numerous responses to BillFloat's first sets of Demands for Inspection, Requests for Admission, Special Interrogatories, and Form Interrogatories. Specifically, Mr. Webb's letter requested that Golden Pacific respond-by May 6, 2016, which provided Golden Pacific with 10 days to produce supplemental responses to sixteen (16) Special Interrogatories, seven (7) Form Interrogatories, and one (1) Request for Admission. In addition, Mr. Webb also requested that Golden Pacific respond by May 13, 2016, which provided Golden Pacific with 17 days to produce supplemental responses to eighty-three (83) Demands for Inspection as well as additional documents. Attached hereto as EXHIBIT A is a true and correct copy of Mr. Webb's 147-page letter addressed to Mr. Onstott dated April 26, 2016. 3. On May 4, 2016, I sent a letter to Mr. Webb in response to his April 26 letter and requested additional time for Golden Pacific to respond to the contentions in Mr. Webb's 147-page meet-and-confer letter. Attached hereto as EXHIBIT B is a true and correct copy of my letter to Mr. Webb dated May 4, 2016. 4, Given the extensive number of contentions in Mr. Webb's 147-page meet-and- confer letter, on May 31, 2016, I emailed Mr. Webb seeking an additional one week for Golden Pacific to produce supplemental responses to BillFloat's Demands for Inspection, Request for Admission, Special Interrogatories, and Form Interrogatories. Attached hereto as EXHIBIT C is a true and correct copy of my email to Mr. Webb dated May 31, 2016. Mi 1492056.1 14023-004 ; 1 DECLARATION OF ERROL C. DAUIS IN SUPPORT OF GOLDEN PACIFIC BANK'S OPPOSITION TO BILLFLOAT'S MOTION TO COMPEL FURTHER RESPONSESB Oo ON AH 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. On May 31, 2016, Jennifer D. Yu of Mr. Webb's office responded to my email of earlier that day and confirmed the extension of time for Golden Pacific to respond to Mr. Webb's 147-page meet-and-confer letter and produce supplemental responses to BillFloat's Demands for Inspection, Request for Admission, Special Interrogatories, and Form Interrogatories. Attached hereto as EXHIBIT D is a true and correct copy of Ms. Yu's letter to me dated May 31, 2016. 6. On June 7, 2016, Golden Pacific served supplemental responses to twenty-three (23) Special Interrogatories, seven (7) Form Interrogatories, and one (1) Request for Admission. Golden Pacific also served a privilege log corresponding to its document production. Attached hereto as EXHIBIT E is a true and correct copy of Golden Pacific's Supplemental Response to Special Interrogatories, Set No. One, Propounded by BillFloat. Attached hereto as EXHIBIT F is a true and correct copy of Golden Pacific's Supplemental Response to Form Interrogatories, Set No. One, Propounded by BillFloat. Attached hereto as EXHIBIT G is a true and correct copy of Golden Pacific's Supplemental Response to Requests for Admission, Set No. One, Propounded by BillFloat. Attached hereto as EXHIBIT H is a true and correct copy of Golden Pacific's Privilege Log, Volume I. 7. In addition, on June 7, 2016, I sent a detailed letter in response to Mr, Webb's 147- page meet-and-confer letter which outlined numerous deficiencies with the remainder of BillFloat's Demands for Inspection, Special Interrogatories, and Form Interrogatories that prevented Golden Pacific from supplementing those enumerated requests. Specifically, I noted that there were numerous "issues that we would like to meet and confer with you about before GPB can supplement its responses” to the requests addressed in Mr. Webb's 147-page meet-and- confer letter that Golden Pacific was unable to supplement due to the deficiencies set forth in my June 7 letter. Accordingly, I invited Mr. Webb to meet-and-confer on the remaining issues: "Before GPB can further supplement its responses to the discovery requests enumerated [in the June 7 letter], we will need to discuss reasonable limitations and narrowing the scope of the requests so GPB may have a reasonable opportunity to respond." Attached hereto as EXHIBIT T is a true and correct copy of my letter to Mr. Webb dated June 7, 2016. Mit 1492056.t 14023-004 2 DECLARATION OF ERROI C. DAUIS IN SUPPORT OF GOLDEN PACIFIC BANK'S OPPOSITION TO BILLFLOAT'S MOTION TO COMPEL FURTHER RESPONSESAR ww Oo eo ID 10 ra 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 8. On June 17, 2016, Golden Pacific served supplemental responses to fifteen (15) Demands for Inspection. Attached hereto as EXHIBIT J is a true and correct copy of Golden Pacific's Supplemental Response to Demand for Inspection, Set No. One, Propounded by BillFloat. 9. On June 29, 201 6, Golden Pacific produced additional documents in response to BillFloat's Demand for Inspection, Set One, and a second privilege log. Attached hereto as EXHIBIT K is a true and correct copy of correspondence dated June 29, 2016, sent to Mr. Webb acknowledging service of supplemental documents. Attached hereto as EXHIBIT L is a true and correct copy of Golden Pacific's Privilege Log, Volume II. 10. As of the date of filing Golden Pacific's Opposition to BillFloat's Motion to Compel, I have not received any meet-and-confer letters or requests from Mr. Webb's office regarding Golden Pacific's supplemental responses to BillFloat's Special Interrogatories, Form Interrogatories, Requests for Admission, Demands for Inspection, service of two privilege logs, or production of additional documents. Furthermore, as of the date of filing Golden Pacific's Opposition to BillFloat's Motion to Compel, I have not received any response whatsoever to my June 7, 2016, letter requesting that Mr. Webb mect-and-confer so that we could discuss the numerous deficiencies in BillFloat's discovery requests which prevented Golden Pacific from having a reasonable opportunity to supplement its responses. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed September A ; 2016, at Sacramento, California. Errol C, Dauis 1492056.1 4023-004 3 DECLARATION OF ERROL C. DAUIS IN SUPPORT OF GOLDEN PACIFIC BANK'S OPPOSITION TO BILLFLOAT'S MOTION TO COMPEL FURTHER RESPONSESEXHIBIT A155 Montgomery Street, Suite 1200 \ \ I San Francisco, CA 94104 (415) 277-7200 Wiesel ssa Bou (415) 277-7210 (fax) www.webblegalgroup.com April 26, 2016 Christopher Onstott, Esq. Kronick Moskovitz Tiedemann & Girard 400 Capitol Mall, 27" Floor Sacramento, CA 95814 Via E-MAIL (constott@kmtg.com) Inre: BillFloat, Inc. v. Golden Pacific Bank, N.A. Case No. CGC-15-547679 Dear Mr. Onstott: This letter is to meet and confer with you about your deficient responses to Better Finance’s first sets of Special Interrogatories, Inspection Demands, Requests for Admission and Form Interrogatories propounded to Golden Pacific Bank, N.A. After reviewing the responses to our discovery requests, we find many of the objections to the requests to be lacking and the responses inadequate. Pursuant to California Code of Civil Procedure sections 2016.040 and/or 2025.480 subdivision (b), please consider this letter as our attempt to “meet and confer” prior to filing Motions to Compel Further Responses. As a preliminary matter, we have calendared May 11, 2016 as the final day upon which to file a motion to compel on the special interrogatories, form interrogatories, and requests for admission and July 15, 2016 as the final day upon which to file a motion to compel on the inspection demands. This letter is written to discharge our duty to meet and confer prior to filing such a motion. If you wish to provide supplemental responses, or to further engage in the meet and confer process, but do not feel you will have the ability to do so prior to May 6 for the special interrogatories, form interrogatories, and requests for admission, or May 13 for the inspection demands, just let us know, and we will extend the deadline within which to respond to this letter, so long as you grant us corresponding extensions of time within which to file our motions. In other words, if you need more time, no reasonable request will be denied so long as you ask before noon on May 6, 2016 for the special interrogatories, form interrogatories, and requests for admission, and May 13 for the inspection demands. and so long as the request is accompanied by an equal extension of the amount ofLetter to Christopher Onstott, Esq. April 26, 2016 Page 2 of 147 time we would have within which to file our motion to compel, which we have calendared as above. If you believe we have miss-calendared these dates, please let us know immediately. Specifically, the discovery requests are deficient in the following ways. Asa preliminary matter, if Plaintiff is withholding any documents based on privilege, they should be included on a privilege log. (Hernandez v Superior Court (2003) 112 Cal.App.4” 285, 292.) By agreement, the Parties will disclose their respective privilege logs on May 31, 2016. In writing this letter before that date, we are not waiving any issues with the privilege log, and we will address that under separate cover at the appropriate time. We also note that although your client has produced documents GPB_0000001 through GPB_ 0004544, on first review, they do not seem to include any internal documents — only correspondence between our clients. Is it really your position that GPB generated no documents internally in connection with the Parties joint venture? Please produce all responsive documents immediately. DEMAND FOR INSPECTIONS, SET ONE DEMAND FOR INSPECTION NO. 1 Any and all DOCUMENTS upon which YOU rely in support of any answer to any interrogatory contained in any set of Form Interrogatories served herewith. RESPONSE Responding Party objects on the ground that this request demands production of attorney- client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overly broad and unduly burdensome. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party's needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response. REASON FURTHER RESPONSE IS NECESSARY BOILERPLATE First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct. An objecting party must enumerate specific objections. Courts have held that a motion to compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v.Letter to Christopher Onstott, Esq. April 26, 2016 Page 3 of 147 Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions for “boilerplate” objections). OVERLY BROAD You state that the request is overbroad, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. VAGUE You state that the request is vague and ambiguous, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. DISCOVERY HAS JUST COMMENCED You also object on the basis “ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production.” This is not a basis for objecting and failing to provide documents. Please supplement your response to provide a Code-compliant response confirming that you have provided all responsive documents, and provide any documents you have withheld to this point. THIRD PARTY PRIVACY Generally, discovery is permissible if the requested information is “not privileged,” “is relevant to the subject matter involved in the pending action,” and “appears reasonably calculated to lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.010. “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.020. The information sought is directly relevant to the issues in this case. DEMAND FOR INSPECTION NO. 2 Any and all DOCUMENTS that YOU consulted in connection with the formulation of any answer to any interrogatory contained in any set of Form Interrogatories served herewith. RESPONSE Responding Party objects on the ground that this request demands production of attorney-client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overly broad andLetter to Christopher Onstott, Esq. April 26, 2016 Page 4 of 147 unduly burdensome. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party’s needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response. REASON FURTHER RESPONSE IS NECESSARY BOILERPLATE First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct. An objecting party must enumerate specific objections. Courts have held that a motion to compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions for “boilerplate” objections). OVERLY BROAD You state that the request is overbroad, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. VAGUE You state that the request is vague and ambiguous, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. DISCOVERY HAS JUST COMMENCED You also object on the basis “ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production.” This is not a basis for objecting and failing to provide documents. Please supplement your response to provide a Code-compliant response confirming that you have provided all responsive documents, and provide any documents you have withheld to this point. THIRD PARTY PRIVACY Generally, discovery is permissible if the requested information is “not privileged,” “is relevant to the subject matter involved in the pending action,” and “appears reasonably calculated to lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.010. “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs theLetter to Christopher Onstott, Esq. April 26, 2016 Page 5 of 147 likelihood that the information sought will lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.020. The information sought is directly relevant to the issues in this case. DEMAND FOR INSPECTION NO. 3 Any and all DOCUMENTS upon which YOU rely in support of any answer to any interrogatory contained in Special Interrogatories — Set One. RESPONSE Responding Party objects on the ground that this request demands production of attorney-client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overly broad and unduly burdensome. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party's needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response. REASON FURTHER RESPONSE IS NECESSARY BOILERPLATE First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct. An objecting party must enumerate specific objections. Courts have held that a motion to compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions for “boilerplate” objections). OVERLY BROAD You state that the request is overbroad, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. VAGUE You state that the request is vague and ambiguous, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. DISCOVERY HAS JUST COMMENCEDLetter to Christopher Onstott, Esq. April 26, 2016 Page 6 of 147 You also object on the basis “ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production.” This is not a basis for objecting and failing to provide documents. Please supplement your response to provide a Code-compliant response confirming that you have provided all responsive documents, and provide any documents you have withheld to this point. THIRD PARTY PRIVACY Generally, discovery is permissible if the requested information is “not privileged,” “is relevant to the subject matter involved in the pending action,” and “appears reasonably calculated to lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.010. “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.020. The information sought is directly relevant to the issues in this case. DEMAND FOR INSPECTION NO. 4 Any and all DOCUMENTS that YOU consulted in connection with the formulation of any answer to any interrogatory contained in Special Interrogatories — Set One. RESPONSE Responding Party objects on the ground that this request demands production of attorney-client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overly broad and unduly burdensome. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party's needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response. REASON FURTHER RESPONSE IS NECESSARY BOILERPLATE First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct. An objecting party must enumerate specific objections. Courts have held that a motion to compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v.Letter to Christopher Onstott, Esq. April 26, 2016 Page 7 of 147 Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions for “boilerplate” objections). OVERLY BROAD You state that the request is overbroad, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. VAGUE You state that the request is vague and ambiguous, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. DISCOVERY HAS JUST COMMENCED You also object on the basis “ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production.” This is not a basis for objecting and failing to provide documents. Please supplement your response to provide a Code-compliant response confirming that you have provided all responsive documents, and provide any documents you have withheld to this point. THIRD PARTY PRIVACY Generally, discovery is permissible if the requested information is “not privileged,” “is relevant to the subject matter involved in the pending action,” and “appears reasonably calculated to lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.010. “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.020. The information sought is directly relevant to the issues in this case. DEMAND FOR INSPECTION NO. 5 Any and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all DOCUMENTS pertaining to the development of the GOLD STANDARD technology after December 5, 2013. RESPONSE Responding Party objects on the ground that this request demands production of attorney-client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overbroad, undulyLetter to Christopher Onstott, Esq. April 26, 2016 Page 8 of 147 burdensome, vague, and ambiguous. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party's needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response. Subject to, and without waiving the foregoing objections, Responding Party responds as follows: Construing the definition of "GOLD STANDARD" to be the definition in Exhibit A of the CONTRACT and/or Exhibit A of the MARKETING AGREEMENT, Responding Party will produce all non-privileged DOCUMENTS that constitute or refer to the development of the GOLD STANDARD technology between December 5, 2013 and August 31, 2015, that Responding Party has located after a reasonable and diligent search. REASONABLE AND DILIGENT SEARCH The responding party shall respond with either: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling. Code of Civil Procedure section 2031.210. Please provide a Code-compliant response to the request as propounded. NON-RESPONSIVE This request seeks “Any and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all DOCUMENTS pertaining to the development of the GOLD STANDARD technology after December 5, 2013.” Your response states that you “will produce all non-privileged DOCUMENTS that constitute or refer to the development of the GOLD STANDARD technology between December 5, 2013 and August 31, 2015.” That is not what this request seeks. Please provide a Code-compliant response to the request as propounded. REASON FURTHER RESPONSE IS NECESSARY IMPROPER NARROWING OF REQUESTLetter to Christopher Onstott, Esq. April 26, 2016 Page 9 of 147 You attempt to limit this request to a certain time period from December 5, 2013 to August 31, 2015. This request is not so limited with respect to the time period of documents requested. Among other things, the Parties’ joint venture has never been terminated, and the attendant fiduciary duties GPB owes Better Finance have continued until this date and beyond, making documents relevant outside of your narrowed time frame. Please confirm that all responsive documents have been provided in the documents GPB_0000001 through GPB_0004544, and supplement your response to provide documents following August 31, 2015. DEMAND FOR INSPECTION NO. 7 Any and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all costs for the improvement of the SmartBiz Brand IP. RESPONSE Responding Party objects on the ground that this request demands production of attorney-client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overbroad, unduly burdensome, vague, and ambiguous. Responding Party further objects to the extent that this request seeks documents in Propounding Party's possession or equally available to Propounding Party from sources other than Responding Party. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party's needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response. Subject to, and without waiving the foregoing objections, Responding Party responds as follows: Contingent upon Responding Party and Propounding Party meeting and conferring to limit the scope of the request, define the term "improvement," and identify specific individuals relevant to this request, Responding Party will produce all non- privileged DOCUMENTS created by, sent by, or received by individuals specified by Responding Party and Propounding Party that refer to costs for the improvement of the SmartBiz Brand IP, that Responding Party has located after a reasonable and diligent search, REASON FURTHER RESPONSE IS NECESSARY “IMPROVEMENT” The term “improvement” is not vague or ambiguous. It is used in the parties’ contracts and is also used in the complaint you filed.Letter to Christopher Onstott, Esq. April 26, 2016 Page 10 of 147 NON-RESPONSIVE This request asks for “[a]ny and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all costs for the improvement of the SmartBiz Brand IP.” Your response refers to ‘DOCUMENTS created by, sent by, or received by individuals . . . that refer to costs for the improvement of the SmartBiz Brand IP.” This request is not so limited. Please provide a Code-compliant response to the request as propounded. REASONABLE AND DILIGENT SEARCH The responding party shall respond with either: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling. Code of Civil Procedure section 2031.210. Please provide a Code-compliant response to the request as propounded. DEMAND FOR INSPECTION NO. 8 Any and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all income generated by GPB’s joint ownership of the GOLD STANDARD technology from 2013 to the present. RESPONSE Responding Party objects on the ground that this request demands production of attorney-client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overbroad, unduly burdensome, vague, and ambiguous. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party's needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response. Subject to, and without waiving the foregoing objections, Responding Party responds as follows: Construing the definition of "GOLD STANDARD" to be the definition in Exhibit A of the CONTRACT and/or Exhibit A of the MARKETING AGREEMENT, RespondingLetter to Christopher Onstott, Esq. April 26, 2016 Page 11 of 147 Party will produce any non-privileged reports that reference income generated by GPB's ownership of the GOLD STANDARD technology from 2013 to August 31, 2015, that Responding Party has located after a reasonable and diligent search. REASON FURTHER RESPONSE IS NECESSARY IMPROPER NARROWING OF REQUEST You attempt to limit this request to a certain time period from January 1, 2013 to August 31, 2015 when this requests asks for documents from January 1, 2013 to the present. This request is not so limited with respect to the time period of documents requested. Among other things, the Parties’ joint venture has never been terminated, and the attendant fiduciary duties GPB owes Better Finance have continued until this date and beyond, making documents relevant outside of your narrowed time frame. Please confirm that all responsive documents have been provided in the documents GPB_0000001 through GPB_0004544, and supplement your response to provide documents following August 31, 2015. NON-RESPONSIVE This request asks for “[a]ny and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all income generated by GPB’s joint ownership of the GOLD STANDARD technology from 2013 to the present.” Your response states that you “will produce any non-privileged reports that reference income generated by GPB’s ownership of the GOLD STANDARD technology. . ..”. That is not what the request seeks. Please provide a Code-compliant response to the request as propounded. REASONABLE AND DILIGENT SEARCH The responding party shall respond with either: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling. Code of Civil Procedure section 2031.210. Please provide a Code-compliant response to the request as propounded. DEMAND FOR INSPECTION NO. 9Letter to Christopher Onstott, Esq. April 26, 2016 Page 12 of 147 Any and all DOCUMENTS consisting of, or pertaining, relating or referring to, any and all drafts of the CONTRACT. RESPONSE Responding Party objects on the ground that this request demands production of attorney-client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overbroad, unduly burdensome, vague, and ambiguous. Responding Party further objects to the extent that this request seeks documents in Propounding Party's possession or equally available to Propounding Party from sources other than Responding Party. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party's needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response. Subject to, and without waiving the foregoing objections, Responding Party responds as follows: Responding Party will produce all non-privileged drafts of the CONTRACT that Responding Party has located after a reasonable and diligent search. REASON FURTHER RESPONSE IS NECESSARY NON-RESPONSIVE This request asks for “[a]ny and all DOCUMENTS consisting of, or pertaining, relating or referring to, any and all drafts of the CONTRACT.” Your response states that you will produce all “non-privileged drafts of the CONTRACT.” That is not what the request seeks. Please provide a Code-compliant response to the request as propounded. REASONABLE AND DILIGENT SEARCH The responding party shall respond with either: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling. Code of Civil Procedure section 2031.210. Please provide a Code-compliant response to the request as propounded.Letter to Christopher Onstott, Esq. April 26, 2016 Page 13 of 147 DEMAND FOR INSPECTION NO. 10 Any and all DOCUMENTS consisting of, or pertaining, relating or referring to, the CONTRACT. RESPONSE Responding Party objects on the ground that this request demands production of attorney-client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overbroad, unduly burdensome, vague, and ambiguous. Responding Party further objects to the extent that this request seeks documents in Propounding Party's possession or equally available to Propounding Party from sources other than Responding Party. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party's needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response. REASON FURTHER RESPONSE IS NECESSARY BOILERPLATE First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct. An objecting party must enumerate specific objections. Courts have held that a motion to compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions for “boilerplate” objections). OVERLY BROAD You state that the request is overbroad, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. VAGUE You state that the request is vague and ambiguous, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. DISCOVERY HAS JUST COMMENCED You also object on the basis “ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documentsLetter to Christopher Onstott, Esq. April 26, 2016 Page 14 of 147 in Responding Party's possession, custody, and control can be reviewed for production.” This is not a basis for objecting and failing to provide documents. Please supplement your response to provide a Code-compliant response confirming that you have provided all responsive documents, and provide any documents you have withheld to this point. EQUALLY AVAILABLE Please explain your reasoning as to how it is you believe that these documents are equally available to the Defendants. This objection is only available if you have to go get public records (Bunnell v. Sup. Ct. (1967) Cal.App.2d 720, 723-724) or interview independent witnesses (Holguin v. Sup Ct. (1972) 22 Cal.App.3d 812, 821) in order to answer the questions. In this case, you do not have to do either, and so this is not a valid objection. THIRD PARTY PRIVACY Generally, discovery is permissible if the requested information is “not privileged,” “is relevant to the subject matter involved in the pending action,” and “appears reasonably calculated to lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.010. “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.020. The information sought is directly relevant to the issues in this case. DEMAND FOR INSPECTION NO. 12 Any and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all COMMUNICATION with any PERSON concerning or referring to the CONTRACT. RESPONSE Responding Party objects on the ground that this request demands production of attorney-client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overbroad, unduly burdensome, vague, and ambiguous. Responding Party further objects to the extent that this request seeks documents in Propounding Party's possession or equally available to Propounding Party from sources other than Responding Party. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party's needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response.Letter to Christopher Onstott, Esq. April 26, 2016 Page 15 of 147 REASON FURTHER RESPONSE IS NECESSARY BOILERPLATE First, the use of boilerplate objections, as Plaintiff has used here, is sanctionable conduct. An objecting party must enumerate specific objections. Courts have held that a motion to compel lies where objections are “too general.” See Korea Data Systems Co. Ltd. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions for “boilerplate” objections). OVERLY BROAD You state that the request is overbroad, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. VAGUE You state that the request is vague and ambiguous, but you do not attempt to explain how this is so. If there genuinely is an ambiguity that affects your ability to respond, please explain the nature of the ambiguity, and we will work with you to clear it up. EQUALLY AVAILABLE Please explain your reasoning as to how it is you believe that these documents are equally available to the Defendants. This objection is only available if you have to go get public records (Bunnell y. Sup. Ct. (1967) Cal.App.2d 720, 723-724) or interview independent witnesses (Holguin v. Sup Ct. (1972) 22 Cal.App.3d 812, 821) in order to answer the questions. In this case, you do not have to do either, and so this is not a valid objection. DISCOVERY HAS JUST COMMENCED You also object on the basis “ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production.” This is not a basis for objecting and failing to provide documents. Please supplement your response to provide a Code-compliant response confirming that you have provided all responsive documents, and provide any documents you have withheld to this point. THIRD PARTY PRIVACY Generally, discovery is permissible if the requested information is “not privileged,” “is relevant to the subject matter involved in the pending action,” and “appears reasonably calculated to lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.010. “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs theLetter to Christopher Onstott, Esq. April 26, 2016 Page 16 of 147 likelihood that the information sought will lead to the discovery of admissible evidence.” California Code of Civil Procedure section 2017.020. The information sought is directly relevant to the issues in this case. DEMAND FOR INSPECTION NO. 14 Any and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all COMMUNICATION with any PERSON concerning or referring to the need to cancel, alter and/or amend the CONTRACT or any of its terms. RESPONSE Responding Party objects on the ground that this request demands production of attorney-client privileged communications and attorney work product documents. Responding Party further objects on the grounds that this request is overbroad, unduly burdensome, vague, and ambiguous. Responding Party further objects to the extent that this request seeks documents in Propounding Party's possession or equally available to Propounding Party from sources other than Responding Party. Responding Party further objects to the extent that this request violates the privacy rights of Responding Party and third parties in a manner that is incommensurate with Propounding Party's needs. Responding Party further objects on the ground that discovery has just commenced and is not yet completed, and therefore, production is unreasonable until such time that all documents in Responding Party's possession, custody, and control can be reviewed for production. Responding Party reserves the right to amend this response. Subject to, and without waiving the foregoing objections, Responding Party responds as follows: Responding Party will produce any non-privileged DOCUMENTS that constitute COMMUNICATION after July 23, 2014, that refer to the need to cancel, alter, and/or amend the CONTRACT or any of its terms, that Responding Party has located after a reasonable and diligent search. REASON FURTHER RESPONSE IS NECESSARY IMPROPER NARROWING OF REQUEST You attempt to limit this request to a certain time period from July 23, 2014 to the present. This request is not so limited with respect to the time period of documents requested. We are entitled to explore whether, as expected, your client may have intended to insist upon further amendment of the agreement, which would support allegations of (among other things) fraud. This request is not so limited with respect to the time period of documents requested. Among other things, the Parties’ joint venture has never been terminated, and the attendant fiduciary duties GPB owes Better Finance have continued until this date and beyond, making documents relevant outside of your narrowed time frame. Please confirm that all responsive documents have been provided in the documents GPB_0000001 through GPB_0004544, and supplement your response to provide documents following August 31, 2015.Letter to Christopher Onstott, Esq. April 26, 2016 Page 17 of 147 NON-RESPONSIVE This request seeks “[a]ny and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all COMMUNICATION with any PERSON concerning or referring to the need to cancel, alter and/or amend the CONTRACT or any of its terms.” Your response states that you will produce “any non-privileged DOCUMENTS that constitute COMMUNICATION after July 23, 2014, that refer to the need to cancel, alter, and/or amend the CONTRACT or any of its terms.” That is not what the request seeks. Please provide a Code-compliant response to the request as propounded. REASONABLE AND DILIGENT SEARCH The responding party shall respond with either: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling. Code of Civil Procedure section 2031.210. Please provide a Code-compliant response to the request as propounded. DEMAND FOR INSPECTION NO. 16 Any and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all CORRESPONDENCE with any regulatory agency, including, but not limited to, the United States Treasury Department’s Office of the Comptroller of the