Preview
1 Kimberly Pallen (SBN 288605)
kimberly.pallen@withersworldwide.com
2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY
(admitted Pro Hac Vice)
3 christopher.lavigne@withersworldwide.com F I L E D
Superior Court of California,
Withers Bergman LLP County of San Francisco
4 505 Sansome Street, 2nd Floor
San Francisco, California 94111 05/10/2021
Clerk of the Court
5 Telephone: 415.872.3200 BY: EDWARD SANTOS
Facsimile: 415.549 2480 Deputy Clerk
6
Attorneys for Defendants Payward, Inc., a
7 California Corporation d/b/a Kraken; and Kaiser
Ng, an individual
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11
12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099
13 Plaintiff, DECLARATION OF CHRISTOPHER
LAVIGNE IN SUPPORT OF
14 v. DEFENDANTS’ REPLY TO EMPLOYEE
5’S AND NATHAN PETER RUNYON’S
15 PAYWARD, INC., a California Corporation OPPOSITION TO MOTION TO COMPEL
d/b/a KRAKEN; and KAISER NG, an DEPOSITION OF WITNESS AND FOR
16 individual; and DOES 1 through 10, inclusive, SANCTIONS
17 Defendants. Filed Concurrently with Defendants’ Reply to
Employee 5’s and Nathan Peter Runyon’s
18 Opposition to Motion to Compel Deposition
of Witness and for Sanctions
19
[DISCOVERY]
20
Date: May 17, 2021
21 Time: 9:00 a.m.
22 The Hon. Ethan P. Schulman, Dept. 302
23 Action Filed: November 26, 2019
Trial Date: September 13, 2021
24
25 I, Christopher LaVigne, declare as follows:
26 1. The facts stated in this declaration are based on my personal knowledge, and, if called
27 to testify, I could and would competently testify to them.
28 2. I am an attorney duly licensed to practice law in the State of New York. I am a partner
NY28571/0001-US-9373429/1
W ITHERS
B ERGMAN LLP DECL. OF CHRISTOPHER LAVIGNE ISO DEFENDANTS’ REPLY TO EMPLOYEE 5’S OPPOSITION TO MTC
DEPOSITION OF WITNESS AND FOR SANCTIONS
1 at the law firm of Withers Bergman LLP, counsel for claimants Payward, Inc. d/b/a Kraken
2 (“Payward”) and Kaiser Ng (together with Payward, “Defendants”) in the above-entitled matter. I
3 was admitted pro hac vice in this matter on March 5, 2020.
4 3. I make this declaration in support of Defendants’ Reply to Employee 5’s and Nathan
5 Peter Runyon’s Opposition to Motion to Compel and for Sanctions.
6 4. Due to a clerical error, Exhibit 43 to my Declaration in Support of Defendant’s
7 Motion to Compel Deposition of Witness and for Sanctions, dated April 22, 2021, was missing
8 certain page references and page numbers. A corrected Exhibit 43 is attached hereto as Exhibit A.
9 5. Defendants adequately met and conferred with Employee 5 and Plaintiff regarding
10 the hearing date for its Motion to Compel Deposition of Witness and for Sanctions, dated April 22,
11 2021 (the “Motion”). Attached hereto as Exhibit B is a true and correct copy of an e-mail chain
12 between Defendants’ counsel and Plaintiff’s counsel dated April 16, 2021 through April 19, 2021.
13 Mr. Ford admits Payward provided him with several dates for a hearing and provides an exhibit
14 demonstrating this fact. (See Motion at 10-11; Ford Decl. Exh. L.)
15 6. Defendants need the Motion heard and decided before May 20 to give them sufficient
16 time to make a summary judgment motion before the current deadline of May 27, 2021. Payward
17 offered to change the date of the Motion’s hearing if Ms. Cochran would agree to shorten the 75-
18 day notice period such that Defendants would have extra time to file a motion for summary
19 judgment, but Ms. Cochran refused. Ms. Cochran’s colleague, Maya Sorensen later responded to
20 the e-mail chain about shortening the notice period, providing information about her experience
21 with judges in the “Eastern District,” which was confusing and not relevant. More specifically, Ms.
22 Sorensen stated, “[I]n my experience in the Eastern District where the deadlines for filing are
23 calculated by the hearing date, judges are less willing to shorten their own time for review by so
24 many days.” Defendants were not suggesting that this Court shorten its time to review Defendants’
25 summary judgment motion. To the contrary, Defendants were suggesting that Plaintiff shorten his
26 time to respond to the motion, as the parties had previously discussed. Opposing counsel’s failure
27 to understand this is perplexing. Attached hereto as Exhibit C is a true and correct copy of an e-
28 mail chain between Defendants’ counsel and Plaintiff’s counsel dated April 29, 2021 through April
NY28571/0001-US-9373429/1 2
W ITHERS
B ERGMAN LLP DECL. OF CHRISTOPHER LAVIGNE ISO DEFENDANTS’ REPLY TO EMPLOYEE 5’S OPPOSITION TO MTC
DEPOSITION OF WITNESS AND FOR SANCTIONS
1 30, 2021. Accordingly, Defendants were forced to choose among the three available hearing dates
2 it proposed to Employee 5 and Plaintiff, and they chose the latest of the three.
3 7. As explained in my April 22, 2021 Declaration, Payward requested $82,493.40 in
4 sanctions against Ms. Cochran, Mr. Ford, Plaintiff and Employee 5. This number includes the
5 following:
6 a. $14,149.50 (fees incurred in Payward’s numerous communications with Mr.
7 Ford and preparation of various deposition subpoenas to his client). This number is comprised of
8 $500 in statutory damages per CCP § 1992; 11 hours of Mr. LaVigne’s time at $705/hour; 6.8
9 hours of Ms. Pallen’s time at $530/hour; 5.4 hours of paralegal Mr. Sanichar’s time at
10 $295/hour; and 3.1 hours of paralegal Ms. Baskaya’s time at $220/hour.
11 b. $7,095 (fees incurred by Payward in being forced to draft and file its Ex
12 Parte Application for Order to Continue Trial.) This number is comprised of 3.9 hours of Mr.
13 LaVigne’s time at $705/hour; and 8.2 hours of Ms. Pallen’s time at $530/hour.
14 c. $16,116.90 (Payward’s estimate of fees and costs to re-depose Plaintiff.
15 This estimate includes the costs of attorney and paralegal time to prepare for the deposition,
16 attorney time to take the deposition, and court reporter fees). This number is comprised of 8 hours
17 of Mr. LaVigne’s time at $705/hour; 8 hours of Ms. Pallen’s time at $530/hour; 8 hours of
18 paralegal Mr. Sanichar’s time at $295/hour, and $3876.90 in court reporter fees.
19 d. $17,024 (fees incurred by Payward in drafting and filing opposition papers
20 to Plaintiff’s four separate ex parte applications, attending the hearing of the four separate ex parte
21 applications, and costs to deliver physical courtesy copies of its opposition papers to the Court,
22 and CourtCall fees). This number is comprised of 12.2 hours of Mr. LaVigne’s time at $705/hour;
23 12.1 hours of Ms. Pallen’s time at $530/hour; and 2.2 hours of paralegal Mr. Sanichar’s time at
24 $295/hour, and $1361 in fees for messengers and CourtCall.
25 e. $28,108 (fees incurred by Payward in drafting the instant motion). This
26 number is comprised of 9.8 hours of Mr. LaVigne’s time at $705/hour; 37.3 hours of Ms. Pallen’s
27 time at $530/hour; and 6.5 hours of paralegal Ms. Baskaya’s time at $220/hour.
28 I declare under penalty of perjury under the laws of the State of California that the foregoing
NY28571/0001-US-9373429/1 3
W ITHERS
B ERGMAN LLP DECL. OF CHRISTOPHER LAVIGNE ISO DEFENDANTS’ REPLY TO EMPLOYEE 5’S OPPOSITION TO MTC
DEPOSITION OF WITNESS AND FOR SANCTIONS
1 is true and correct, except as to matters stated on information and belief and as to those matters, I
2 believe them to be true.
3 Executed this 10th day of May, 2021, in Killington, Vermont.
4
5 _____________________________________
Christopher N. LaVigne, Esq.
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NY28571/0001-US-9373429/1 4
W ITHERS
B ERGMAN LLP DECL. OF CHRISTOPHER LAVIGNE ISO DEFENDANTS’ REPLY TO EMPLOYEE 5’S OPPOSITION TO MTC
DEPOSITION OF WITNESS AND FOR SANCTIONS
EXHIBIT A
· · · ·SUPERIOR COURT OF THE STATE OF CALIFORNIA
· · · · · · · · COUNTY OF SAN FRANCISCO
NATHAN PETER RUNYON, an individual,· )
· · · · · · · · · · · · · · · · · · ·) [ CERTIFIED COPY )
· · · · · · Plaintiff,· · · · · · · ·)
· · · · · · · · · · · · · · · · · · ·)
· · ·vs.· · · · · · · · · · · · · · ·) Case No.:
· · · · · · · · · · · · · · · · · · ·) CGC-19-581099
PAYWARD, INC., a California· · · · · )
Corporation d/b/a/ KRAKEN; and Kaiser)
NG, an individual; and DOES 1 through)
10, inclusive,· · · · · · · · · · · ·)
· · · · · · · · · · · · · · · · · · ·)
· · · · · · Defendants.· · · · · · · )
_____________________________________)
· · · · · · · · · ·***CONFIDENTIAL***
· · · · · · ·VIDEO-RECORDED DEPOSITION OF
· · · · · · · · · NATHAN PETER RUNYON
· · · · · · · REMOTELY HELD IN CALIFORNIA
· · · · · · · · · · · MARCH 4, 2021
REPORTED BY:
LYNETTE MARIE NELSON, CSR NO. 11585, RPR
CRR, CRG, CCRR, REALTIME SYSTEMS ADMINISTRATOR
JOB NO. 21-96764
rc?GTHE SULLIVAN GROUP
~ OF COURT REPORTERS
SU L L I VAN COURT RE PO RTE RS .COM
PHONE 855.525.3860 I 323.938.8750
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 COUNTY OF SAN FRANCISCO
3
4 NATHAN PETER RUNYON, an individual, )
5 Plaintiff,
)
)
[ CERTIFIED COPY l
)
6 vs. ) Case No.:
) CGC-19-581099
7 PAYWARD, INC., a California )
Corporation d/b/a/ KRAKEN; and Kaiser)
8 NG, an individual; and DOES 1 through)
10, inclusive, )
9 )
Defendants. )
10 _____________________________________)
11
12
13
14 ***CONFIDENTIAL***
15 VIDEO-RECORDED DEPOSITION OF
16 NATHAN PETER RUNYON
17 REMOTELY HELD IN CALIFORNIA
18 MARCH 4, 2021
19
20
21
22
23
REPORTED BY:
24 LYNETTE MARIE NELSON, CSR NO. 11585, RPR
CRR, CRG, CCRR, REALTIME SYSTEMS ADMINISTRATOR
25 JOB NO. 21-96764
CONFIDENTIAL TRANSCRIPT
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 COUNTY OF SAN FRANCISCO
3
4 NATHAN PETER RUNYON, an individual, )
)
5 Plaintiff, )
)
6 vs. ) Case No.:
) CGC-19-581099
7 PAYWARD, INC., a California )
Corporation d/b/a/ KRAKEN; and Kaiser)
8 NG, an individual; and DOES 1 through)
10, inclusive, )
9 )
Defendants. )
10 _____________________________________)
11
12
13
14
15
16 DEPOSITION OF NATHAN PETER RUNYON,
17 taken by the Defendants, commencing at the hour of
18 9:03 a.m. on Thursday, March 4, 2021, remotely held in
19 the State of California before Lynette Marie Nelson,
20 Certified Shorthand Reporter in and for the State of
21 California.
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THE SULLIVAN GROUP OF COURT REPORTERS
2
1 APPEARANCES:
2
3
4 For the Defendants:
WITHERS BERGMAN LLP
5 BY: CHRISTOPHER LAVIGNE, ESQ.
BY: KIMBERLY PALLEN, ESQ.
6 430 Park Avenue, 10th Floor
New York, New York 10022-3505
7 (212)848-9882
Christopher.LaVigne@withersworldwide.com
8
For the Plaintiff:
9 THE LAW OFFICES OF CLAIRE COCHRAN
BY: NATALIE XIFO, ESQ.
10 BY: CLAIRE COCHRAN, ESQ.
100 Pine Street, Suite 1250
11 San Francisco, California 94111
(414)580-6019
12 natalie@clairecochranlegal.com
13
14 Also present: Brittney de la Cruz,
Video/Exhibit Technician
15
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Lalindra Sanichar, Paralegal
17
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THE SULLIVAN GROUP OF COURT REPORTERS
3
CONFIDENTIAL TRANSCRIPT
03:01:02 1 Q. Yes.
2 A. Is it in this document? Because that's the
3 only method that I have to have his -- his Slack
4 messages.
03:01:11 5 Q. It's my understanding, it came to our attention
6 yesterday, that you possess two flash drives containing
7 documents relevant to this -- this litigation; is that
8 correct?
9 A. I provided flash drives, yes, to my lawyers.
03:01:29 10 Q. When did you provide those to your lawyers?
11 A. In -- sometime in 2019.
12 Q. What are on those flash drives?
13 A. I don't remember. I just gave them to them.
14 Q. So if there was another Slack message
03:01:56 15 evidencing what you claim to be fraud, why didn't you
16 copy that?
17 A. Copy that?
18 MS. COCHRAN: Sorry. Lacks foundation.
19 BY MR. LAVIGNE:
03:02:17 20 Q. Well, you copied Payward documents onto these
21 flash drives; right?
22 A. I -- I don't remember what's on those flash
23 drives.
24 Q. Why did you provide them to your lawyer?
03:02:34 25 A. Because I handed over what I thought might be
THE SULLIVAN GROUP OF COURT REPORTERS
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CONFIDENTIAL TRANSCRIPT
1 useful. Handed everything that I thought might be
2 useful.
3 Q. What did you think might be useful?
4 A. Stuff that I gave them.
5 Q. Don't you think a copy of the Slack
6 conversation in which you revealed and confronted Kaiser
7 with a purported fraud would have been useful?
8 A. I communicated with Kaiser in various methods
9 not just Slack but other messaging apps as well.
10 Q. Let's assume just for a second that the
11 Slack -- the second other purported Slack conversation
12 does exist where you told Kaiser that it wasn't legal to
13 change options and that you aren't just
14 inventing it, don't you think it would be important
15 enough to copy onto these flash drives?
16 A. Are you talking about the other messaging apps
17 or just Slack?
18 Q. We're just talking about Slack right now
19 because you said there's another Slack message.
20 A. Well, there are multiple messages that were --
21 where Mr. Ng and myself would -- where I told him these
22 issues.
23 MS. COCHRAN: Misstates testimony.
24 BY MR. LAVIGNE:
25 Q. Is there another Slack message other than this
THE SULLIVAN GROUP OF COURT REPORTERS
207
CONFIDENTIAL TRANSCRIPT
03:43:48 ·1· · · ·A.· ·I don't recall doing that.
·2· · · ·Q.· ·Did you inform -- other than Stacy, anybody in
·3· ·the accounting team?
·4· · · ·A.· ·No.
03:43:59 ·5· · · ·Q.· ·Did you --
·6· · · ·A.· ·Kaiser and -- Kaiser and Stacy were the only
·7· ·people I -- I spoke with about the terms and what's
·8· ·going on with it.· Internally.
·9· · · ·Q.· ·Why didn't you talk to anybody else?
03:44:12 10· · · ·A.· ·What's that?
11· · · ·Q.· ·Why didn't you tell anybody else?
12· · · ·A.· ·I was attempting to handle it in-house without
13· ·escalating it or -- yeah.· I wanted to handle it within
14· ·the team, within -- with Kaiser, figure that out.· As
03:44:35 15· ·well as the fact of, like, bringing it up to external
16· ·people would risk myself and my job to the company.
17· · · ·Q.· ·And so the only time you raised it outside the
18· ·company was after you got fired?
19· · · ·A.· ·Yes.
03:45:04 20· · · ·Q.· ·Before we move on, I just want to go back. I
21· ·don't think it's clear for the record.
22· · · · · · When did you download documents onto your flash
23· ·drive?
24· · · ·A.· ·Prior to me being terminated.
03:45:19 25· · · ·Q.· ·Why did you download those documents -- company
THE SULLIVAN GROUP OF COURT REPORTERS
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CONFIDENTIAL TRANSCRIPT
03:45:22 1 documents onto your flash drive?
2 A. For a variety of reasons.
3 Q. What were those reasons?
4 A. One, to share the data with Stacy and Kaiser,
03:45:38 5 because the Internet ports were notoriously bad. It
6 would take a long time to transfer documents and to show
7 the documents as well as going on leave. And in case
8 they needed any -- anything that either they didn't have
9 or they needed, I wouldn't actually have to go to my
03:46:07 10 computer for. I could just go into the junk drive that
11 was in my desk.
12 And as well as to cover my ass because it
13 seemed like Kaiser was possibly going to throw me under
14 the bus for some of his stuff about changing people's
03:46:36 15 vesting schedules despite the board, which represents
16 the company, with the board voting for people's stock
17 options to be one thing and then him changing it using
18 my account on -- on Carta, even though he had an account
19 on Carta. And I was trying to train him, like, teach
03:47:02 20 him how to change stuff in Carta. But he would still,
21 like, use my account. And so I didn't want it to come
22 bite me in the ass and be held liable for it.
23 So I wanted to ensure that that, among other
24 things, that I wouldn't be penalized for actions that he
03:47:23 25 was doing, which I believed were unethical, illegal, and
THE SULLIVAN GROUP OF COURT REPORTERS
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CONFIDENTIAL TRANSCRIPT
03:47:28 ·1· ·personally immoral.
·2· · · ·Q.· ·What documents would protect you from that?
·3· · · ·A.· ·Various things that he was -- he was doing.
·4· · · ·Q.· ·Communications with Kaiser?
03:47:44 ·5· · · ·A.· ·I don't know.· It's been -- I don't remember
·6· ·what was on them.
·7· · · ·Q.· ·Do you remember how many documents roughly that
·8· ·were downloaded in total?
·9· · · ·A.· ·No, I don't remember.
03:48:05 10· · · ·Q.· ·You stated that one of the reasons you
11· ·downloaded this stuff onto a flash drive was to keep it
12· ·in your desk so people could access it.· How did you end
13· ·up with it in your possession?
14· · · ·A.· ·Company gave it back to me.
03:48:20 15· · · ·Q.· ·When?
16· · · ·A.· ·When they brought out my box full of stuff.
17· ·Because I was working from home the day that I was
18· ·terminated.· And I wasn't able to come in and get it so
19· ·they brought me out a box and in that box contained
03:48:40 20· ·flash drives.
21· · · ·Q.· ·Did you have any communication with -- who at
22· ·the company gave you this box?
23· · · ·A.· ·It was Anastasia Burtseva, Amanda Goh, and
24· ·Rohan Ghandi I believe his last name is.
03:49:00 25· · · ·Q.· ·And did you have any communication with any of
THE SULLIVAN GROUP OF COURT REPORTERS
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CONFIDENTIAL TRANSCRIPT
1 Q. I understand that it's not an SMS message. But
2 you are sending words over an application's message;
3 right?
4 A. It's a way to communicate with somebody via
5 Wi-Fi and -- yeah, like -- because it uses Wi-Fi.
6 Q. And -- and when you communicated with
7 over Signal around the time you were terminated, do you
8 remember what you told her?
9 A. When I was terminated?
10 Q. Mm-hmm.
11 A. Yeah, just give her a heads-up that her vesting
12 schedule was four years, and it wasn't the six years
13 that Kaiser had led her to believe. Because that was
14 really weighing on me because of all of the stress of,
15 like, telling Kaiser, bringing it up, and then the
16 hostility that I faced as a result of trying to resolve
17 that with him. And I just wanted to clear my conscience
18 of that. Because I didn't want to be held liable for it
19 in case an audit at a later date catches it and if she
20 found out and then she would come to me and say, well, I
21 did it, and then Kaiser would say, oh, Pete did it. And
22 I didn't know anything about it. So -- yeah.
23 Because my time of trying to fix it obviously
24 became impossible if I'm fired for it. I tried to fix
25 it the right way. As a result, I'm penalized for trying
THE SULLIVAN GROUP OF COURT REPORTERS
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CONFIDENTIAL TRANSCRIPT
1 to fix it.
2 Q. And did you just -- did you tell that
3 the board minutes reflected a four-year vesting schedule
4 for her?
5 A. Did I -- can you repeat it? Did I tell
6
7 MS. COCHRAN: Asked and answered. I'm sorry,
8 misstates his testimony.
9 THE WITNESS: Yeah, can you please repeat?
10 BY MR. LAVIGNE:
11 Q. Did you tell that the company board
12 minutes reflected that she had a four-year vesting
13 schedule?
14 A. I believe I just told her that she had a
15 four-year vesting schedule.
16 Q. You didn't talk about the board minutes?
17 A. I don't remember. I only told her about hers.
18 Q. You contacted shortly after or
19 sometime after you were -- the call -- the -- well, let
20 me back up.
21 Was this Signal conversation a phone
22 conversation or was it a -- a message?
23 A. This was -- I believe it was a phone
24 conversation via Signal app.
25 Q. Mm-hmm. And -- and after that phone
THE SULLIVAN GROUP OF COURT REPORTERS
235
CONFIDENTIAL TRANSCRIPT
1 conversation, you contacted again; isn't that
2 right?
3 MS. COCHRAN: Lacks foundation.
4 THE WITNESS: Where does it say that?
5 BY MR. LAVIGNE:
6 Q. Around the time you filed your complaint in
7 November 2019, you contacted is that right?
8 MS. COCHRAN: Lacks foundation.
9 THE WITNESS: After my complaint was filed, I
10 just sent her a link to it.
11 BY MR. LAVIGNE:
12 Q. Via Signal?
13 A. Yes.
14 Q. Did you have any other Signal communications
15 with
16 A. I may have said, like, happy new year or
17 something or merry Christmas. But that's about it.
18 Q. Have you ever heard of something called a
19 litigation hold?
20 A. Litigation hold?
21 Q. Mm-hmm.
22 A. Or a hold?
23 Q. A litigation hold.
24 A. No.
25 Q. Do you understand, has anybody ever told you
THE SULLIVAN GROUP OF COURT REPORTERS
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CONFIDENTIAL TRANSCRIPT
1 BY MR. LAVIGNE:
2 Q. Do you understand that as part of litigation,
3 Payward made multiple requests for documents and
4 communications, your documents and communications, in
5 connection with this case?
6 MS. COCHRAN: Vague and ambiguous with regard
7 to multiple requests for communications.
8 You can answer, Pete.
9 THE WITNESS: Do I understand that you said
10 that to my lawyers? That -- that's the question?
11 BY MR. LAVIGNE:
12 Q. Do you understand that your lawyers have
13 produced documents including some of your communications
14 in this case to Payward as part
Preview
1 Kimberly Pallen (SBN 288605) kimberly.pallen@withersworldwide.com 2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY (admitted Pro Hac Vice) 3 christopher.lavigne@withersworldwide.com F I L E D Superior Court of California, Withers Bergman LLP County of San Francisco 4 505 Sansome Street, 2nd Floor San Francisco, California 94111 05/10/2021 Clerk of the Court 5 Telephone: 415.872.3200 BY: EDWARD SANTOS Facsimile: 415.549 2480 Deputy Clerk 6 Attorneys for Defendants Payward, Inc., a 7 California Corporation d/b/a Kraken; and Kaiser Ng, an individual 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099 13 Plaintiff, DECLARATION OF CHRISTOPHER LAVIGNE IN SUPPORT OF 14 v. DEFENDANTS’ REPLY TO EMPLOYEE 5’S AND NATHAN PETER RUNYON’S 15 PAYWARD, INC., a California Corporation OPPOSITION TO MOTION TO COMPEL d/b/a KRAKEN; and KAISER NG, an DEPOSITION OF WITNESS AND FOR 16 individual; and DOES 1 through 10, inclusive, SANCTIONS 17 Defendants. Filed Concurrently with Defendants’ Reply to Employee 5’s and Nathan Peter Runyon’s 18 Opposition to Motion to Compel Deposition of Witness and for Sanctions 19 [DISCOVERY] 20 Date: May 17, 2021 21 Time: 9:00 a.m. 22 The Hon. Ethan P. Schulman, Dept. 302 23 Action Filed: November 26, 2019 Trial Date: September 13, 2021 24 25 I, Christopher LaVigne, declare as follows: 26 1. The facts stated in this declaration are based on my personal knowledge, and, if called 27 to testify, I could and would competently testify to them. 28 2. I am an attorney duly licensed to practice law in the State of New York. I am a partner NY28571/0001-US-9373429/1 W ITHERS B ERGMAN LLP DECL. OF CHRISTOPHER LAVIGNE ISO DEFENDANTS’ REPLY TO EMPLOYEE 5’S OPPOSITION TO MTC DEPOSITION OF WITNESS AND FOR SANCTIONS 1 at the law firm of Withers Bergman LLP, counsel for claimants Payward, Inc. d/b/a Kraken 2 (“Payward”) and Kaiser Ng (together with Payward, “Defendants”) in the above-entitled matter. I 3 was admitted pro hac vice in this matter on March 5, 2020. 4 3. I make this declaration in support of Defendants’ Reply to Employee 5’s and Nathan 5 Peter Runyon’s Opposition to Motion to Compel and for Sanctions. 6 4. Due to a clerical error, Exhibit 43 to my Declaration in Support of Defendant’s 7 Motion to Compel Deposition of Witness and for Sanctions, dated April 22, 2021, was missing 8 certain page references and page numbers. A corrected Exhibit 43 is attached hereto as Exhibit A. 9 5. Defendants adequately met and conferred with Employee 5 and Plaintiff regarding 10 the hearing date for its Motion to Compel Deposition of Witness and for Sanctions, dated April 22, 11 2021 (the “Motion”). Attached hereto as Exhibit B is a true and correct copy of an e-mail chain 12 between Defendants’ counsel and Plaintiff’s counsel dated April 16, 2021 through April 19, 2021. 13 Mr. Ford admits Payward provided him with several dates for a hearing and provides an exhibit 14 demonstrating this fact. (See Motion at 10-11; Ford Decl. Exh. L.) 15 6. Defendants need the Motion heard and decided before May 20 to give them sufficient 16 time to make a summary judgment motion before the current deadline of May 27, 2021. Payward 17 offered to change the date of the Motion’s hearing if Ms. Cochran would agree to shorten the 75- 18 day notice period such that Defendants would have extra time to file a motion for summary 19 judgment, but Ms. Cochran refused. Ms. Cochran’s colleague, Maya Sorensen later responded to 20 the e-mail chain about shortening the notice period, providing information about her experience 21 with judges in the “Eastern District,” which was confusing and not relevant. More specifically, Ms. 22 Sorensen stated, “[I]n my experience in the Eastern District where the deadlines for filing are 23 calculated by the hearing date, judges are less willing to shorten their own time for review by so 24 many days.” Defendants were not suggesting that this Court shorten its time to review Defendants’ 25 summary judgment motion. To the contrary, Defendants were suggesting that Plaintiff shorten his 26 time to respond to the motion, as the parties had previously discussed. Opposing counsel’s failure 27 to understand this is perplexing. Attached hereto as Exhibit C is a true and correct copy of an e- 28 mail chain between Defendants’ counsel and Plaintiff’s counsel dated April 29, 2021 through April NY28571/0001-US-9373429/1 2 W ITHERS B ERGMAN LLP DECL. OF CHRISTOPHER LAVIGNE ISO DEFENDANTS’ REPLY TO EMPLOYEE 5’S OPPOSITION TO MTC DEPOSITION OF WITNESS AND FOR SANCTIONS 1 30, 2021. Accordingly, Defendants were forced to choose among the three available hearing dates 2 it proposed to Employee 5 and Plaintiff, and they chose the latest of the three. 3 7. As explained in my April 22, 2021 Declaration, Payward requested $82,493.40 in 4 sanctions against Ms. Cochran, Mr. Ford, Plaintiff and Employee 5. This number includes the 5 following: 6 a. $14,149.50 (fees incurred in Payward’s numerous communications with Mr. 7 Ford and preparation of various deposition subpoenas to his client). This number is comprised of 8 $500 in statutory damages per CCP § 1992; 11 hours of Mr. LaVigne’s time at $705/hour; 6.8 9 hours of Ms. Pallen’s time at $530/hour; 5.4 hours of paralegal Mr. Sanichar’s time at 10 $295/hour; and 3.1 hours of paralegal Ms. Baskaya’s time at $220/hour. 11 b. $7,095 (fees incurred by Payward in being forced to draft and file its Ex 12 Parte Application for Order to Continue Trial.) This number is comprised of 3.9 hours of Mr. 13 LaVigne’s time at $705/hour; and 8.2 hours of Ms. Pallen’s time at $530/hour. 14 c. $16,116.90 (Payward’s estimate of fees and costs to re-depose Plaintiff. 15 This estimate includes the costs of attorney and paralegal time to prepare for the deposition, 16 attorney time to take the deposition, and court reporter fees). This number is comprised of 8 hours 17 of Mr. LaVigne’s time at $705/hour; 8 hours of Ms. Pallen’s time at $530/hour; 8 hours of 18 paralegal Mr. Sanichar’s time at $295/hour, and $3876.90 in court reporter fees. 19 d. $17,024 (fees incurred by Payward in drafting and filing opposition papers 20 to Plaintiff’s four separate ex parte applications, attending the hearing of the four separate ex parte 21 applications, and costs to deliver physical courtesy copies of its opposition papers to the Court, 22 and CourtCall fees). This number is comprised of 12.2 hours of Mr. LaVigne’s time at $705/hour; 23 12.1 hours of Ms. Pallen’s time at $530/hour; and 2.2 hours of paralegal Mr. Sanichar’s time at 24 $295/hour, and $1361 in fees for messengers and CourtCall. 25 e. $28,108 (fees incurred by Payward in drafting the instant motion). This 26 number is comprised of 9.8 hours of Mr. LaVigne’s time at $705/hour; 37.3 hours of Ms. Pallen’s 27 time at $530/hour; and 6.5 hours of paralegal Ms. Baskaya’s time at $220/hour. 28 I declare under penalty of perjury under the laws of the State of California that the foregoing NY28571/0001-US-9373429/1 3 W ITHERS B ERGMAN LLP DECL. OF CHRISTOPHER LAVIGNE ISO DEFENDANTS’ REPLY TO EMPLOYEE 5’S OPPOSITION TO MTC DEPOSITION OF WITNESS AND FOR SANCTIONS 1 is true and correct, except as to matters stated on information and belief and as to those matters, I 2 believe them to be true. 3 Executed this 10th day of May, 2021, in Killington, Vermont. 4 5 _____________________________________ Christopher N. LaVigne, Esq. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NY28571/0001-US-9373429/1 4 W ITHERS B ERGMAN LLP DECL. OF CHRISTOPHER LAVIGNE ISO DEFENDANTS’ REPLY TO EMPLOYEE 5’S OPPOSITION TO MTC DEPOSITION OF WITNESS AND FOR SANCTIONS EXHIBIT A · · · ·SUPERIOR COURT OF THE STATE OF CALIFORNIA · · · · · · · · COUNTY OF SAN FRANCISCO NATHAN PETER RUNYON, an individual,· ) · · · · · · · · · · · · · · · · · · ·) [ CERTIFIED COPY ) · · · · · · Plaintiff,· · · · · · · ·) · · · · · · · · · · · · · · · · · · ·) · · ·vs.· · · · · · · · · · · · · · ·) Case No.: · · · · · · · · · · · · · · · · · · ·) CGC-19-581099 PAYWARD, INC., a California· · · · · ) Corporation d/b/a/ KRAKEN; and Kaiser) NG, an individual; and DOES 1 through) 10, inclusive,· · · · · · · · · · · ·) · · · · · · · · · · · · · · · · · · ·) · · · · · · Defendants.· · · · · · · ) _____________________________________) · · · · · · · · · ·***CONFIDENTIAL*** · · · · · · ·VIDEO-RECORDED DEPOSITION OF · · · · · · · · · NATHAN PETER RUNYON · · · · · · · REMOTELY HELD IN CALIFORNIA · · · · · · · · · · · MARCH 4, 2021 REPORTED BY: LYNETTE MARIE NELSON, CSR NO. 11585, RPR CRR, CRG, CCRR, REALTIME SYSTEMS ADMINISTRATOR JOB NO. 21-96764 rc?GTHE SULLIVAN GROUP ~ OF COURT REPORTERS SU L L I VAN COURT RE PO RTE RS .COM PHONE 855.525.3860 I 323.938.8750 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 COUNTY OF SAN FRANCISCO 3 4 NATHAN PETER RUNYON, an individual, ) 5 Plaintiff, ) ) [ CERTIFIED COPY l ) 6 vs. ) Case No.: ) CGC-19-581099 7 PAYWARD, INC., a California ) Corporation d/b/a/ KRAKEN; and Kaiser) 8 NG, an individual; and DOES 1 through) 10, inclusive, ) 9 ) Defendants. ) 10 _____________________________________) 11 12 13 14 ***CONFIDENTIAL*** 15 VIDEO-RECORDED DEPOSITION OF 16 NATHAN PETER RUNYON 17 REMOTELY HELD IN CALIFORNIA 18 MARCH 4, 2021 19 20 21 22 23 REPORTED BY: 24 LYNETTE MARIE NELSON, CSR NO. 11585, RPR CRR, CRG, CCRR, REALTIME SYSTEMS ADMINISTRATOR 25 JOB NO. 21-96764 CONFIDENTIAL TRANSCRIPT 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 COUNTY OF SAN FRANCISCO 3 4 NATHAN PETER RUNYON, an individual, ) ) 5 Plaintiff, ) ) 6 vs. ) Case No.: ) CGC-19-581099 7 PAYWARD, INC., a California ) Corporation d/b/a/ KRAKEN; and Kaiser) 8 NG, an individual; and DOES 1 through) 10, inclusive, ) 9 ) Defendants. ) 10 _____________________________________) 11 12 13 14 15 16 DEPOSITION OF NATHAN PETER RUNYON, 17 taken by the Defendants, commencing at the hour of 18 9:03 a.m. on Thursday, March 4, 2021, remotely held in 19 the State of California before Lynette Marie Nelson, 20 Certified Shorthand Reporter in and for the State of 21 California. 22 23 24 25 THE SULLIVAN GROUP OF COURT REPORTERS 2 1 APPEARANCES: 2 3 4 For the Defendants: WITHERS BERGMAN LLP 5 BY: CHRISTOPHER LAVIGNE, ESQ. BY: KIMBERLY PALLEN, ESQ. 6 430 Park Avenue, 10th Floor New York, New York 10022-3505 7 (212)848-9882 Christopher.LaVigne@withersworldwide.com 8 For the Plaintiff: 9 THE LAW OFFICES OF CLAIRE COCHRAN BY: NATALIE XIFO, ESQ. 10 BY: CLAIRE COCHRAN, ESQ. 100 Pine Street, Suite 1250 11 San Francisco, California 94111 (414)580-6019 12 natalie@clairecochranlegal.com 13 14 Also present: Brittney de la Cruz, Video/Exhibit Technician 15 16 Lalindra Sanichar, Paralegal 17 18 19 20 21 22 23 24 25 THE SULLIVAN GROUP OF COURT REPORTERS 3 CONFIDENTIAL TRANSCRIPT 03:01:02 1 Q. Yes. 2 A. Is it in this document? Because that's the 3 only method that I have to have his -- his Slack 4 messages. 03:01:11 5 Q. It's my understanding, it came to our attention 6 yesterday, that you possess two flash drives containing 7 documents relevant to this -- this litigation; is that 8 correct? 9 A. I provided flash drives, yes, to my lawyers. 03:01:29 10 Q. When did you provide those to your lawyers? 11 A. In -- sometime in 2019. 12 Q. What are on those flash drives? 13 A. I don't remember. I just gave them to them. 14 Q. So if there was another Slack message 03:01:56 15 evidencing what you claim to be fraud, why didn't you 16 copy that? 17 A. Copy that? 18 MS. COCHRAN: Sorry. Lacks foundation. 19 BY MR. LAVIGNE: 03:02:17 20 Q. Well, you copied Payward documents onto these 21 flash drives; right? 22 A. I -- I don't remember what's on those flash 23 drives. 24 Q. Why did you provide them to your lawyer? 03:02:34 25 A. Because I handed over what I thought might be THE SULLIVAN GROUP OF COURT REPORTERS 206 YVer1f CONFIDENTIAL TRANSCRIPT 1 useful. Handed everything that I thought might be 2 useful. 3 Q. What did you think might be useful? 4 A. Stuff that I gave them. 5 Q. Don't you think a copy of the Slack 6 conversation in which you revealed and confronted Kaiser 7 with a purported fraud would have been useful? 8 A. I communicated with Kaiser in various methods 9 not just Slack but other messaging apps as well. 10 Q. Let's assume just for a second that the 11 Slack -- the second other purported Slack conversation 12 does exist where you told Kaiser that it wasn't legal to 13 change options and that you aren't just 14 inventing it, don't you think it would be important 15 enough to copy onto these flash drives? 16 A. Are you talking about the other messaging apps 17 or just Slack? 18 Q. We're just talking about Slack right now 19 because you said there's another Slack message. 20 A. Well, there are multiple messages that were -- 21 where Mr. Ng and myself would -- where I told him these 22 issues. 23 MS. COCHRAN: Misstates testimony. 24 BY MR. LAVIGNE: 25 Q. Is there another Slack message other than this THE SULLIVAN GROUP OF COURT REPORTERS 207 CONFIDENTIAL TRANSCRIPT 03:43:48 ·1· · · ·A.· ·I don't recall doing that. ·2· · · ·Q.· ·Did you inform -- other than Stacy, anybody in ·3· ·the accounting team? ·4· · · ·A.· ·No. 03:43:59 ·5· · · ·Q.· ·Did you -- ·6· · · ·A.· ·Kaiser and -- Kaiser and Stacy were the only ·7· ·people I -- I spoke with about the terms and what's ·8· ·going on with it.· Internally. ·9· · · ·Q.· ·Why didn't you talk to anybody else? 03:44:12 10· · · ·A.· ·What's that? 11· · · ·Q.· ·Why didn't you tell anybody else? 12· · · ·A.· ·I was attempting to handle it in-house without 13· ·escalating it or -- yeah.· I wanted to handle it within 14· ·the team, within -- with Kaiser, figure that out.· As 03:44:35 15· ·well as the fact of, like, bringing it up to external 16· ·people would risk myself and my job to the company. 17· · · ·Q.· ·And so the only time you raised it outside the 18· ·company was after you got fired? 19· · · ·A.· ·Yes. 03:45:04 20· · · ·Q.· ·Before we move on, I just want to go back. I 21· ·don't think it's clear for the record. 22· · · · · · When did you download documents onto your flash 23· ·drive? 24· · · ·A.· ·Prior to me being terminated. 03:45:19 25· · · ·Q.· ·Why did you download those documents -- company THE SULLIVAN GROUP OF COURT REPORTERS 229 YVer1f CONFIDENTIAL TRANSCRIPT 03:45:22 1 documents onto your flash drive? 2 A. For a variety of reasons. 3 Q. What were those reasons? 4 A. One, to share the data with Stacy and Kaiser, 03:45:38 5 because the Internet ports were notoriously bad. It 6 would take a long time to transfer documents and to show 7 the documents as well as going on leave. And in case 8 they needed any -- anything that either they didn't have 9 or they needed, I wouldn't actually have to go to my 03:46:07 10 computer for. I could just go into the junk drive that 11 was in my desk. 12 And as well as to cover my ass because it 13 seemed like Kaiser was possibly going to throw me under 14 the bus for some of his stuff about changing people's 03:46:36 15 vesting schedules despite the board, which represents 16 the company, with the board voting for people's stock 17 options to be one thing and then him changing it using 18 my account on -- on Carta, even though he had an account 19 on Carta. And I was trying to train him, like, teach 03:47:02 20 him how to change stuff in Carta. But he would still, 21 like, use my account. And so I didn't want it to come 22 bite me in the ass and be held liable for it. 23 So I wanted to ensure that that, among other 24 things, that I wouldn't be penalized for actions that he 03:47:23 25 was doing, which I believed were unethical, illegal, and THE SULLIVAN GROUP OF COURT REPORTERS 230 YVer1f CONFIDENTIAL TRANSCRIPT 03:47:28 ·1· ·personally immoral. ·2· · · ·Q.· ·What documents would protect you from that? ·3· · · ·A.· ·Various things that he was -- he was doing. ·4· · · ·Q.· ·Communications with Kaiser? 03:47:44 ·5· · · ·A.· ·I don't know.· It's been -- I don't remember ·6· ·what was on them. ·7· · · ·Q.· ·Do you remember how many documents roughly that ·8· ·were downloaded in total? ·9· · · ·A.· ·No, I don't remember. 03:48:05 10· · · ·Q.· ·You stated that one of the reasons you 11· ·downloaded this stuff onto a flash drive was to keep it 12· ·in your desk so people could access it.· How did you end 13· ·up with it in your possession? 14· · · ·A.· ·Company gave it back to me. 03:48:20 15· · · ·Q.· ·When? 16· · · ·A.· ·When they brought out my box full of stuff. 17· ·Because I was working from home the day that I was 18· ·terminated.· And I wasn't able to come in and get it so 19· ·they brought me out a box and in that box contained 03:48:40 20· ·flash drives. 21· · · ·Q.· ·Did you have any communication with -- who at 22· ·the company gave you this box? 23· · · ·A.· ·It was Anastasia Burtseva, Amanda Goh, and 24· ·Rohan Ghandi I believe his last name is. 03:49:00 25· · · ·Q.· ·And did you have any communication with any of THE SULLIVAN GROUP OF COURT REPORTERS 231 YVer1f CONFIDENTIAL TRANSCRIPT 1 Q. I understand that it's not an SMS message. But 2 you are sending words over an application's message; 3 right? 4 A. It's a way to communicate with somebody via 5 Wi-Fi and -- yeah, like -- because it uses Wi-Fi. 6 Q. And -- and when you communicated with 7 over Signal around the time you were terminated, do you 8 remember what you told her? 9 A. When I was terminated? 10 Q. Mm-hmm. 11 A. Yeah, just give her a heads-up that her vesting 12 schedule was four years, and it wasn't the six years 13 that Kaiser had led her to believe. Because that was 14 really weighing on me because of all of the stress of, 15 like, telling Kaiser, bringing it up, and then the 16 hostility that I faced as a result of trying to resolve 17 that with him. And I just wanted to clear my conscience 18 of that. Because I didn't want to be held liable for it 19 in case an audit at a later date catches it and if she 20 found out and then she would come to me and say, well, I 21 did it, and then Kaiser would say, oh, Pete did it. And 22 I didn't know anything about it. So -- yeah. 23 Because my time of trying to fix it obviously 24 became impossible if I'm fired for it. I tried to fix 25 it the right way. As a result, I'm penalized for trying THE SULLIVAN GROUP OF COURT REPORTERS 234 CONFIDENTIAL TRANSCRIPT 1 to fix it. 2 Q. And did you just -- did you tell that 3 the board minutes reflected a four-year vesting schedule 4 for her? 5 A. Did I -- can you repeat it? Did I tell 6 7 MS. COCHRAN: Asked and answered. I'm sorry, 8 misstates his testimony. 9 THE WITNESS: Yeah, can you please repeat? 10 BY MR. LAVIGNE: 11 Q. Did you tell that the company board 12 minutes reflected that she had a four-year vesting 13 schedule? 14 A. I believe I just told her that she had a 15 four-year vesting schedule. 16 Q. You didn't talk about the board minutes? 17 A. I don't remember. I only told her about hers. 18 Q. You contacted shortly after or 19 sometime after you were -- the call -- the -- well, let 20 me back up. 21 Was this Signal conversation a phone 22 conversation or was it a -- a message? 23 A. This was -- I believe it was a phone 24 conversation via Signal app. 25 Q. Mm-hmm. And -- and after that phone THE SULLIVAN GROUP OF COURT REPORTERS 235 CONFIDENTIAL TRANSCRIPT 1 conversation, you contacted again; isn't that 2 right? 3 MS. COCHRAN: Lacks foundation. 4 THE WITNESS: Where does it say that? 5 BY MR. LAVIGNE: 6 Q. Around the time you filed your complaint in 7 November 2019, you contacted is that right? 8 MS. COCHRAN: Lacks foundation. 9 THE WITNESS: After my complaint was filed, I 10 just sent her a link to it. 11 BY MR. LAVIGNE: 12 Q. Via Signal? 13 A. Yes. 14 Q. Did you have any other Signal communications 15 with 16 A. I may have said, like, happy new year or 17 something or merry Christmas. But that's about it. 18 Q. Have you ever heard of something called a 19 litigation hold? 20 A. Litigation hold? 21 Q. Mm-hmm. 22 A. Or a hold? 23 Q. A litigation hold. 24 A. No. 25 Q. Do you understand, has anybody ever told you THE SULLIVAN GROUP OF COURT REPORTERS 236 CONFIDENTIAL TRANSCRIPT 1 BY MR. LAVIGNE: 2 Q. Do you understand that as part of litigation, 3 Payward made multiple requests for documents and 4 communications, your documents and communications, in 5 connection with this case? 6 MS. COCHRAN: Vague and ambiguous with regard 7 to multiple requests for communications. 8 You can answer, Pete. 9 THE WITNESS: Do I understand that you said 10 that to my lawyers? That -- that's the question? 11 BY MR. LAVIGNE: 12 Q. Do you understand that your lawyers have 13 produced documents including some of your communications 14 in this case to Payward as part