Motion to Compel Discovery with Sanctions in NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA CORPORATION ET AL| Trellis.Law

On November 26, 2019 a Party Discovery was filed involving a dispute between Runyon, Nathan Peter, and Does 1-50, Inclusive, Ng, Kaiser, Payward, Inc., A California Corporation, for civil in the District Court of San Francisco County.

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1 Claire E. Cochran (SBN 222529)
Natalie A. Xifo (SBN 280930)
2 LAW OFFICES OF CLAIRE COCHRAN, P.C.
ELECTRONICALLY
100 Pine Street, Suite 1250
3 San Francisco, CA 94111 F I L E D
Telephone: (415) 580-6019 Superior Court of California,
County of San Francisco
4 Facsimile: (415) 745-3301
05/04/2021
5 Clerk of the Court
BY: EDNALEEN ALEGRE
Attorneys for Plaintiff Deputy Clerk
6 NATHAN PETER RUNYON
7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
9 [UNLIMITED JURISDICTION]
10 NATHAN PETER RUNYON Case No. CGC-19-581099
Plaintiff,
11 v. PLAINTIFF NATHAN PETER
RUNYON’S OPPOSITION TO
12 PAYWARD, INC., a California Corporation DEFENDANTS’ MOTION TO
d/b/a KRAKEN; and KAISER NG an individual COMPEL DEPOSITION OF
13 and DOES 1-50, inclusive WITNESS AND FOR SANCTIONS
14 Defendants. [Filed Concurrently with
Memorandum of Points and
15 Authorities, Declaration of Claire E.
Cochran, Esq. and Declaration of
16 Natalie A. Xifo]
17 Hearing Date: May 17, 2021
Time: 11:00 a.m.
18 Dept.: 302
19 Date Action Filed: November 26,
2019
20 Trial Date: July 12, 2021
21

22 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD

23 HEREIN:

24 Plaintiff Nathan Peter Runyon (“Plaintiff” or “Runyon”) opposes Defendants’

25 Motion to Compel Deposition of Witness and for Sanctions brought by Defendants

26 Payward Inc. d/b/a Kraken and Kaiser Ng (collectively “Defendants”). Defendants failed

27 to meet and confer with either Plaintiff or the third-party witness as is required by CCP

28 2016.040. Indeed, they failed to provide to this Court a declaration in support of their

1
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 motion which states any facts that show a reasonable and good faith attempt at an

2 informal resolution of each issue presented by their motion as is required by CCP

3 2016.040. In addition, Defendant has been served all documents responsive to discovery

4 in this matter and has been provided dates for depositions in this matter. Further,

5 Defendant has been provided repeated dates for deposition of a related third party

6 witness, but has failed to set a date certain. This motion is moot.

7 This Opposition is based upon the complete files and records in this action, the

8 attached Memorandum of Points and Authorities, the attached Declaration of Natalie A.

9 Xifo, Esq., the attached Declaration of Claire Cochran, and upon any further oral and
10 documentary evidence as may be presented and/or requested by the Court at any time on
11 the hearing of the Motion.
12

13 Dated: May 4, 2021 LAW OFFICES OF CLAIRE COCHRAN PC
14

15 ~
____________________________
Claire E. Cochran
16 Attorneys for Plaintiff,
17 NATHAN PETER RUNYON

2
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES .....................................................4
2
I. STATEMENT OF FACTS ..............................................................4
3
A. Mr. Runyon Wants Employee 5 to be Deposed in this
4 Action...................................................................................4
5 B. Payward’s Actions Against Mr. Runyon Informed His
Need to Obtain Forensic Imaging of the Thumb Drives.
6 ..............................................................................................6
7
II. ARGUMENT .................................................................................11
8
A. The Main Third-Party Witness Will Testify Once Payward
9 Agrees that their Severance and Confidentiality
Agreements will not be violated by her testimony. ..........11
10
B. Sanctions Against Employee 5 Are Unwarranted .............12
11
C. Neither Runyon Nor His Attorneys Deserve to be
12 Sanctioned. .........................................................................12

13 1. Plaintiff has repeatedly explained to Defendants why his
14 documents needed to be forensically examined.......................12
15 2. As this Court was informed, Mr. Runyon and his counsel filed
16 the ex parte motions on advice of counsel. ..............................14
17 3. Continuation of the trial date warrants no sanctions against any
18 part ...........................................................................................15
19 D. Runyon Did Not Engage in Spoliation. ....................................15

20 III. CONCLUSION ..............................................................................17

21
TABLE OF AUTHORITIES
22 CASES

23 Karwasky v. Zachay (1983) .............................................................................................. 14

24 Sauer v. Superior Court (1987) ......................................................................................... 13

25 Williams v. Russ (2008) ................................................................................................... 15

26 CIVIL STATUTES
27 CCP § 2023.010, subdivisions (g), (h).............................................................................. 12
28 CCP § 2025.480, subdivision (g) ..................................................................................... 12

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Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. STATEMENT OF FACTS
3 On November 26, 2019, Mr. Runyon filed this action alleging Payward

4 discriminated against him due to his disability and retaliated against him when they fired

5 him on August 1, 2019 because he raised concerns about Payward and Defendant Ng’s

6 illegal actions of changing employees’ vesting schedules without consent of their Board.

7 Since then, Payward has engaged in retaliatory litigation tactics in order to intimidate Mr.

8 Runyon by burying him in litigation costs and prevent him from exercising his right to be

9 heard in court. The instant motion is a perfect example of such tactics. Mr. Runyon has
10 produced any and all related documents in his possession in response to discovery,
11 Defendants have ample time and opportunity to take depositions and continue to conduct
12 discovery in preparation for the September 2021 trial date. There is no prejudice to
13 Defendants and there is no gamesmanship afoot by Plaintiff.
14
A. Mr. Runyon Wants Employee 5 to be Deposed in this Action.
15

16 Payward misrepresents Mr. Runyon’s Counsel’s position regarding the deposition
17 of Employee 5. Payward states that “Ms. Cochran refused to agree, claiming she did not
18 get an opportunity to cross-examine this witness during the prior deposition.”

19 (Defendant’s Motion to Compel and Sanctions, p. 5:9-11). That was one concern she

20 mentioned in the middle of a long email which included more important reasons for not

21 authorizing use of Employee 5’s arbitration deposition. (Defendant’s Motion Ex. 32). As

22 Ms. Cochran stated, “of primary import is whether or not the Court will allow us to use a

23 transcript at trial that is related to another case entirely.” (Defendant’s Ex. 32; emphasis

24 added). It should also be noted that Employee 5’s deposition transcript in her own matter,

25 contains highly private demand letters, employment documents and financial information

26 that is simply not relevant to the instant litigation. To provide carte blanch use of that

27 transcript herein would violate Employee 5’s many and varied rights to privacy. In

28 addition, Payward never requested permission from the arbitrator in Employee 5’s

4
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 arbitration action (which is also Payward’s arbitration action against Employee 5) where

2 there is a Protective Order. Ms. Cochran goes on to say in that same exact email “please

3 provide [Employee 5’s] attorney with some dates and we can all move forward.”

4 (Ex. 32).

5 However, in light of Payward’s previous litigation tactics against its former

6 employees, third party Counsel for Employee 5 did not want to subject Employee 5 to a

7 lawsuit by Payward for providing testimony in response to a deposition subpoena and

8 request for documents. (Decl. Cochran ¶ 30); (See also Defendant’s Exhibits. 38-40). On

9 March 16, 2021, Employee 5’s third party Counsel sent Payward’s counsel an email
10 stating “based on the attached employee offer and severance agreement, absent a
11 stipulation that her testimony will in no way violate either document, it will be
12 difficult for [Employee 5] to answer questions at deposition.” (Defendant’s Ex. 41).
13 On March 18, 2021, counsel for Employee 5 further stated in an email to Payward stated
14 very clearly “I have no objection [to] producing [Employee 5] for deposition provided
15 that a) the date works for the witness and all counsel, and b) the issues re the severance
16 agreement and the protective order are resolved… I cannot and will not put her in a
17 position where responding to questions concerning her time at Payward, or the
18 production of documents result in potential civil liability (as evidence by your claim
19 against [Employee 5] for alleged violations of her severance agreement), or potentially

20 run afoul of court/arbitration orders.” Payward characterizes Employee 5’s counsels’

21 concerns as “concocted” and “meritless roadblocks”. (Defendant’s Motion p. 6:20).

22 Actually, these concerns not only implicate Employee 5’s exposure to further litigation

23 by Payward, they also implicate Employee 5’s attorneys’ exposure to a malpractice

24 lawsuit if they had not raised these concerns. And given Payward’s prior actions toward

25 both Employee 5 and Mr. Runyon (discussed below), Counsel for both were required by

26 their duty to effectively represent their clients to make the discussed request.

27 At the time of the filing of this motion, third party Counsel for Employee 5,

28 Brendan Ford, has offered Ms. Wong for deposition repeatedly, including for dates in the

5
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 next ten days. Payward has refused to take the deposition unless Ms. Wong and Mr.

2 Runyon pay for the deposition. Payward is creating its own prejudice with these actions.

3 These Plaintiffs do not have the money to pay for expensive transcripts and lawyers and

4 are responding, as necessary, to the deposition notice with dates. Payward is making it

5 impossible to proceed.

6 B. Payward’s Actions Against Mr. Runyon Informed His Need to Obtain

7 Forensic Imaging of the Thumb Drives.

8 On March 27, 2020, after Payward lost its demurrer in this action, Payward filed a

9 civil action against Mr. Runyon alleging that he misappropriated their trade secrets and
10 unlawfully accessed his computer in District Court (in lieu of simply filing a cross
11 complaint in this matter). (Ex. A). Their basis for alleging misappropriation of trade
12 secrets is that “Runyon subsequently produced [his confidentiality agreement to
13 Defendants in the state court action] to obtain monetary rewards in his state court
14 lawsuit,” (Ex. A ¶ 61); “made and disclosed [to Defendants in the state court action in
15 response to their requests for production] an unauthorized copy of his employment
16 agreement with Payward after his termination,” (Ex. A, ¶ 62); produced screenshots of an
17 email exchange (Ex. A, ¶ 69); produced to Payward board minutes which substantiate
18 that Defendants altered employees’ equity vesting schedule without consent of the
19 Payward’s Board of Directors (Ex. A, ¶ 71); and disclosed Payward’s physical address in

20 the state court action in the complaint (Ex. A, passim).

21 Incidentally, prior to Mr. Runyon filing his complaint in the state court action,

22 Mr. Runyon’s attorneys provided Payward’s attorneys a copy of the complaint for review

23 and edits to ameliorate any concerns about violating Confidentiality. Payward’s attorneys

24 made zero mention about their address being made public as being a violation of

25 Confidentiality and allowed Mr. Runyon’s state court complaint to be filed without

26 comment whatsoever. (Decl. of Claire Cochran ¶ 7). Then, in turn, even after meeting

27 and conferring with Runyon’s Counsel on his Complaint prior to filing, Payward sued

28 Mr. Runyon for his Complaint’s contents in District Court. It is exactly this type of

6
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 behavior that requires Counsel for Runyon, and Employee 5, to exercise extreme caution

2 when responding to subpoenas, providing document production, and similar, to Payward

3 and its Counsel in the instant case. What had seemed reasonable and safe, i.e., meeting

4 and conferring with Payward’s Counsel prior to filing a Complaint to avoid violations of

5 Confidentiality but then being sued for the exact contents met and conferred upon, is

6 exactly what continues to be afoot in this litigation. This environment has forced all

7 attorneys to be extremely cautious working with Payward and its Counsel. Emails are

8 taken out of context, normal meet and confers are discarded, testimony from other cases

9 is surreptitiously used in this case. Runyon and his Counsel ask that the Court understand
10 the playing field as shown above is what is continuing to occur this instant motion, (See
11 Decl. of Claire Cochran, generally).
12 Once discovery opened in this action, in response to Defendant’s First Request for
13 Production of Documents, Plaintiff produced relevant documents from the USB flash
14 drive, including the above-mentioned documents which Payward later sued Mr. Runyon
15 for producing to them at their request. (Decl. Xifo ¶ 11). The rest of the documents were
16 determined at that time to not be responsive to any of Defendant’s requests due to the fact
17 that the vast majority of the documents were work Mr. Runyon had downloaded as was
18 customary and routine amongst Payward employees. (Decl. Xifo ¶ 11). Alongside Mr.
19 Runyon’s action is an arbitration between Employee No. 5 and Payward, and the

20 attorneys are the same in that case and this matter. During discovery in arbitration, it was

21 discovered that many more of Runyon’s jump drive documents were relevant to this

22 matter. (Decl. Cochran, ¶ 16.) It was not until March 2021 when Defendants sought to

23 take the deposition of Plaintiff on March 4, 2021 that all the documents on the USB flash

24 drive (not just documents relevant to this litigation) needed to be reviewed and produced.

25 (Decl. Xifo ¶ 11).

26 In February 2021, the parties began working on the District Court matter

27 preparing documents for production and preparing Initial Disclosures. Additionally, in

28 February 2021, Mr. LaVigne informed Ms. Cochran that he would be seeking to review

7
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 the contents of her lawfirm’s files and emails on the basis of the “Crime Fraud

2 Exception.” Mr. LaVigne asserted that our firm was using documents that were stolen,

3 illegal or otherwise inappropriate. (Decl. Cochran 14, 15.)

4 In preparation for Mr. Runyon’s deposition on March 4, 2021, and related

5 document production pursuant to his deposition notice, Counsel had begun to prepare

6 documents in the usual custom and practice. (Decl. Xifo ¶ 13). However, at this time,

7 given the accusations made by Mr. LaVigne, as well as the review of documents in the

8 District Court case, Ms. Cochran sought to obtain the advice of an expert of how to

9 manage the issue of the jump drives, the Federal Court claims and the allegations made
10 by Mr. LaVigne. On March 1, 2021, Mr. Runyon’s Counsel spoke with Tom Howe,
11 Electronic Discovery Lawyer certified in Computer Forensics, mobile forensics and
12 TSCM Counter Surveillance at Howe Law Firm. Mr. Howe is one of the leading e-
13 discovery lawyers in the country and advises attorneys on the production and extraction
14 of ESI. (Decl. Xifo ¶ 13). Counsel was advised by Mr. Howe that Plaintiff should not
15 simply produce the documents as we would in the regular course of discovery, nor
16 should we just return the USB flash drive to opposing counsel. (Decl. Xifo ¶ 13).
17 Plaintiff’s Counsel was advised that we needed to retain an expert to forensically image
18 the USB flash drives Mr. Runyon created (while he was still working at Payward) prior to

19 production. (Decl. Xifo ¶ 13). Mr. Runyon (and the firm) needed a forensic road map to

20 prove who, when and how the documents were downloaded. This was essential to protect

21 Mr. Runyon, defend him in his District court case, and protect the firm in the instant case.

22 (Decl. Xifo ¶ 13). Simply returning the USB flash drives would prevent him from

23 proving that he did not hack any Payward database. (Decl. Xifo ¶ 13). However, Mr.

24 Howe would not review the USB flash drives absent a Court Order or a stipulation from

25 both parties that the Confidential data can be examined by an expert or third party. (Decl.

26 Xifo ¶ 13).

27 Mr. Runyon’s deposition proceeded as scheduled on March 4, 2021 for over 6

28 hours. Mr. LaVigne questioned Plaintiff about the USB drives and the contents therein.

8
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 As an effort to meet and confer Ms. Cochran offered that Plaintiff would sit for a second

2 day of deposition after Payward received the contents of the USB drives along with the

3 production of records from Plaintiff’s therapist. However, Mr. LaVigne declined the offer

4 at that time. Yesterday, May 3, 2021, Defense Counsel reached out for dates for the

5 continued deposition of Plaintiff. Lead Counsel is currently on vacation, has provided this

6 information to Payward’s Counsel, and yet, the request for deposition is only on dates

7 upon which Counsel is out of town. (Decl. Cochran ¶ 21).

8 On advice of counsel, and to preserve the evidence properly, Plaintiff filed an ex

9 parte application on March 12, 2021 requesting this Honorable Court appoint a joint
10 forensic ESI expert and/or special master. The motion was denied. The Court at no time
11 ordered or even state Plaintiff must produce the documents or jump drives without
12 delay. (Decl. Xifo ¶ 16). Payward attaches no evidence of any order made by this Court
13 either in the form of a minute order or an order after hearing. Furthermore, this Court
14 urged Plaintiff to obtain an expert that did not require an appointment of a special master
15 or a stipulation from unwilling defendants, which we did. This would be impossible to do
16 had this Court ordered production of the thumb drives immediately as Payward alleges.
17 On March 17, 2021, LOCC retained an expert in Los Angeles who was willing to
18 conduct a forensic examination of the USB drives absent a court order. The other 3
19 experts LOCC tried to retain refused to accept the job absent a stipulation and/or Court

20 Order. On March 29, 2021, LOCC produced the contents of the USB flash drives

21 and a Declaration from this expert on what he discovered on the USB flash drives,

22 how they were downloaded and saved. (See Declaration of Kevin Cohen filed

23 concurrently herein). Defendants sought to re notice Mr. Runyon’s deposition for the

24 first time yesterday, May 4, 2021. I (Decl. Xifo ¶ 17).

25 Mr. Runyon had to obtain forensic imaging of the thumb drives because counsel

26 for Payward, Christopher LaVigne, had advised Mr. Runyon’s Counsel that Payward

27 would pursue Mr. Runyon’s communications protected by the work-product doctrine and

28 attorney-client privilege under the crime fraud exception to the attorney-client privilege,

9
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 and any related case, as they relate to documents provided by Mr. Runyon. (Decl.

2 Cochran ¶ 13). Plaintiff’s Counsel proposed the parties stipulate to a joint expert to

3 expedite the process. (Decl. Xifo ¶ 14). Defendants’ counsel declined the offer and

4 instead ignored protocol and demanded the production of the USB flash drives. (Id.). A

5 joint expert would have made this process much easier for all parties and provided

6 guidance on how to store and maintain the jump drives, how to properly preserve

7 evidence in this instance so that no side is prejudiced. But that offer was declined by

8 Defendant. Defendant has put themselves in a position to complain about the manner of

9 production, timing of production and more, but has refused to take actions to fix the
10 situation.
11 This Court can see that in the federal action, Payward repeatedly alleges that Mr.
12 Runyon obtained the documents which were the subject of the special master motion
13 after he was terminated. (Ex. A, passim). They alleged this in order to survive the Rule
14 12(b)(6) motion in federal court, and the allegations are patently false as the defendants
15 know it because they have software that prevents such access. To be 100% clear, Mr.
16 Runyon obtained the documents prior to Payward terminating him. (Decl. Xifo ¶ 10).
17 However, the only way to effectively prove this without getting into a factual dispute
18 with Payward was for a forensic expert to examine the thumb drives and provide a
19 declaration of when exactly these documents were downloaded. (Decl. Xifo ¶¶ 12-13).

20 Payward’s tactics against its former employees, as very well-funded litigants,

21 represent an abuse of power. To recap, Payward fired Mr. Runyon because Mr. Runyon

22 raised ethical and legal concerns about employees’ vesting schedule. Then, when

23 Payward’s efforts to dismiss this lawsuit failed, Payward filed a federal court action

24 against Mr. Runyon for producing documents to Payward and falsely claiming he “stole”

25 documents after he was terminated among other specious allegations. Now Payward files

26 this frivolous motion seeking sanctions, not just against Mr. Runyon’s attorneys but

27 against Mr. Runyon himself and Employee 5 herself.

10
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 II. ARGUMENT
2 A. The Main Third-Party Witness Will Testify Once Payward Agrees
that their Severance and Confidentiality Agreements will not be
3 violated by her testimony.
4 Mr. Runyon does not object to Payward deposing Employee 5 in this action. In

5 fact, he wants her to provide testimony. It is untrue when Payward states to this Court

6 that she will only testify with a court order. What Employee 5 does require, and what

7 both her attorneys are obligated to request, is an agreement from Payward that if she

8 testifies honestly and truthfully in her deposition (as she would be required to do under

9 oath) in this action, that Payward will not turn around and sue her in San Francisco
10 Superior Court, the Northern District of California Federal Court, or in arbitration for
11 violating her confidentiality agreement or her employment agreement, which contains a
12 non-disparagement clause. (Decl. Cochran ¶ 23). Indeed, they are already suing
13 Employee 5 in arbitration for violating these agreements simply because she brought an
14 action against Payward in arbitration. And, as noted in the opening of this motion,
15 Payward and its Counsel have already abused the meet and confer process, by suing
16 Runyon for the contents of his state Court complaint which was reviewed by three of
17 Payward’s attorneys prior to filing. Therefore, Employee 5 and her third-party Counsel,

18 and her Counsel in arbitration (Ms. Cochran’s firm) need to seek assurances that her

19 severance agreement, employee confidentiality agreement and protective order in

20 arbitration will not be violated if she provides testimony herein. Counsel has seen that

21 failures to seek these assurances in writing have backfired when dealing with Counsel for

22 Payward in this case and must protect their client(s).

23 Employee 5’s needs to secure an agreement from Payward not to sue her for

24 complying with their deposition subpoena is real and her Counsel would be committing

25 malpractice if they did not attempt to secure such an agreement. If Payward wants to

26 depose her in this action, this Court should ask Payward why they would refuse to agree

27 not to sue her for complying with their subpoena, especially in light of the fact that

28 Payward HAS entered into a similar agreement so that Mr. Runyon could provide

11
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 testimony in Employee 5’s arbitration trial pursuant to their subpoena. (Decl. Cochran ¶

2 31). It makes little sense for them not to have this same agreement in the instant matter.

3
B. Sanctions Against Employee 5 Are Unwarranted
4

5 Section 2025.480, subdivision (g), authorizes a monetary sanction if a deponent

6 fails to obey an order compelling answers or production of documents and “the

7 disobedient deponent is a party to the action or an officer, director, managing agent, or

8 employee of a party.” Employee 5 is not a party to this action, meaning Payward must

9 prove that Employee 5 was without substantial justification for making her objections to
10 the subpoena.
Here, Employee 5’s objection to her deposition without a stipulation from
11

12 Payward that they will not sue her for testifying truthfully and honestly in a deposition

13 for this action is meritorious and substantially justified especially in light of the fact that

14 Payward has a consistent history of retaliating against its employees through frivolous
15
litigation. Additionally, Employee 5 did not fail to respond to her deposition subpoena.
16
Her attorneys were in constant communication with Payward regarding their concern for
17
Employee 5’s potential liability for complying with Payward’s subpoena. (Decl. Cochran
18
¶¶ 26-31). Payward’s bases for requesting sanctions are unwarranted. As of the date of
19

20 this motion, Employee 5 has been offered up for testimony on both May 14th and May

21 24th. Counsel for Payward has refused to set these dates unless Employee 5, and/or Mr.
22 Runyon and/or their attorneys, pay for this deposition and attorney’s fees. This request is
23
unreasonable and creating prejudice to Defendants of their own making.
24
C. Neither Runyon Nor His Attorneys Deserve to be Sanctioned.
25
1. Plaintiff has repeatedly explained to Defendants why his documents
26 needed to be forensically examined.

27
“Misuses of the discovery process include but are not limited to” “[d]isobeying a
28
court order to provide discovery” and “opposing, unsuccessfully and without substantial
12
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 justification, a motion to compel ... discovery.” (§ 2023.010, subds. (g), (h)). Here,

2 Plaintiff is not opposing the production of documents. In fact, Plaintiff has already

3 produced these documents to Payward.

4 Sauer v. Superior Court is inapplicable to the instant case, mainly because that

5 was a case where the party subjected to sanctions had not produced the documents

6 requested by the party seeking sanctions. As Payward quotes in its moving papers, that

7 case involved “Plaintiff’s failure to produce these documents [which] resulted in the court

8 compelling the discovery.” Id. (1987) 195 Cal. App. 3d 2113, 222. As previously stated,

9 Mr. Runyon has already produced the documents on the thumb drives. Mr. Runyon
10 provided them once a forensic examiner could look at the thumb drives and determine
11 that, contrary to Payward’s claims that Mr. Runyon downloaded the documents after he
12 was fired, Mr. Runyon downloaded them before his termination. No court needed to
13 order Mr. Runyon to compel the discovery. Therefore, Payward has not met its burden
14 for seeking monetary sanctions.
15 Even if Payward had met its burden for seeking monetary sanctions, Payward’s

16 argument that “there is no justification” (presumably that Mr. Runyon did not produce the

17 thumb drives in the exact moment that Payward wanted, although it is not clear what they

18 mean) is untrue. Mr. Runyon explained to Payward extensively that due to Payward’s

19 lawsuit against Mr. Runyon in federal court falsely alleging that he stole the documents

20 on the thumb drive after he was fired, and a forensic specialist had to examine the

21 contents of the thumb drive in order to defend Mr. Runyon against Payward’s accusations

22 in federal court. If Mr. Runyon’s counsel had failed to keep the federal case in mind

23 when producing documents in this instant matter, she could have been subjected to a

24 malpractice lawsuit. Further, it wasn’t until February 2021, that Payward and its Counsel

25 began making allegations against Counsel for violations under the Crime Fraud Act,

26 which necessitated the retention and review of Mr. Runyon’s documents with a fine-tooth

27 comb by an expert. (Decl. of Claire Cochran ¶ 14-17.)

13
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 Given the very real liability both Mr. Runyon and his Counsel faced if they did

2 not have a forensic examination of the thumb drives, this Court should find substantial

3 justification for the method and date of production of the related documents. Further, as

4 noted herein, the parties were engaging in discovery in an arbitration that provided

5 additional perspective on relevant documents in the instant matter. This is the normal

6 evolution of a case, along the way documents that appeared irrelevant at the outset are

7 revealed to be relevant and a subsequent production is made.

8
2. As this Court was informed, Mr. Runyon and his counsel filed the ex parte
9 motions on advice of counsel.
10
Payward characterizes Mr. Runyon’s motions as frivolous, when they were
11
anything but. Mr. Runyon’s Counsel was acting on advice of eDiscovery expert Tom
12
Howe who was willing to examine Mr. Runyon’s thumb drives so long as the court
13
ordered appointment of a special master. When Mr. Runyon’s motion to appoint a special
14
master was denied by this Court, Mr. Runyon took this Court’s advice and eventually
15
found a forensic examiner who would examine the documents without a court order.
16
There were no discovery violations or transgressions and nothing Mr. Runyon did would
17
constitute a misuse of the discovery process. Payward complains about opposing two (it
18
was not four) ex parte motions yet then files this motion to compel (when there is nothing
19
to compel) with over 400 pages of documents for this Court to review. (See Decl.
20
Cochran for ex parte discussions ¶ 18-19.)
21
Payward attempts to convince this Court that “any reasonable attorney would
22
agree [Mr. Runyon’s] motion is totally devoid of merit.” Tom Howe is more than a
23
reasonable attorney. He is a preeminent and much respected eDiscovery lawyer who
24
informed Mr. Runyon’s Counsel that he would not examine these documents absent a
25
special master appointment given the grave threat against Mr. Runyon in federal court.
26
Therefore, Payward’s citing of Karwasky v. Zachay is inapposite.
27

14
Plaintiff Nathan Peter Runyon’s Opposition to Defendants’ Motion to Compel and Deposition of Witness and for Sanctions
Case No. CGC-19-581099
1 3. Continuation of the trial date warrants no sanctions against any party.

2 Payward’s characterization of Mr. Runyon’s actions to protect himself from
3 liability are misleading. Mr. Runyon never refused to produce the documents. Again,
4 Payward has the documents in its possession as of the filing of this motion for sanctions
5 (produced in entirety on March 29, 2021 with a related chain of custody declaration),
6 (Decl. Xifo, ¶ 17). They also consistently throughout their motion and declaration falsely
7 claim that this Court ordered immediate production of the documents. As stated before,
8 that is simply untrue. This Court denied Plaintiff’s motion for a special master, but urged
9 Plaintiff to find an expert who would examine the thumb drives without a Court order for
10 a special master if Tom Howe would not. Payward has neither a minute order nor an
11 order after hearing to show that this Court ordered immediate production of the
12 documents.
13

14 D. Runyon Did Not Engage in Spoliation.

15 “A moving party for discovery sanctions based on the spoliation of evidence must
16 make an initial prima facie showing that the responding party in fact destroyed evidence
17 that had a substantial probability of damaging the moving party’s ability to establish an
18 essential element of his claim or defense.” Williams v. Russ (2008) 167 Cal. App. 4th
19 1215, 1227. Payward has not made prima facie showing that Mr. Runyon destroyed any
20 evidence that had a substantial probability of damaging Payward’s ability to establish its
21 defense and it does not even try. Mr. Runyon has not destroyed anything, as a matter of
22 fact, Mr. Runyon has produced the entirety of his jump drives, even unrelated work
23 content, to Payward and did so at the end of March 2021. The documents have been in
24 Payward’s possession for seven weeks as of the date of this hearing. Trial is set for
25 September 2021, there is no destruction of evidence, there is no gamesmanship afoot.
26 Couns

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

May 04, 2021

Case Filing Date

November 26, 2019

County

Parties

CALDERON, ANDREW E. Attorney for the Defendant
COCHRAN, CLAIRE E. Attorney for the Plaintiff
DOES 1-50, INCLUSIVE Defendant
EMPLOYEE 5 Other
FORD, BRENDAN M. Attorney
LAVIGNE, CHRISTOPHER N. Attorney for the Defendant
NG, KAISER Defendant
PAYWARD, INC., A CALIFORNIA CORPORATION Defendant
RUNYON, NATHAN PETER Plaintiff
STEVENS, GREGORY W. Attorney for the Plaintiff
Natalie Xifo Attorneys for Plaintiffs
Kimberly Pallen Attorneys for Defendants
Claire Eberhard Attorney
Howard Strong Attorneys for Plaintiffs
Eduardo Dominguez Attorney
Aaron Minnis Attorney
Christopher Layne Attorney

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Party Discovery: NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA CORPORATION ET AL

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