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 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
Withers Bergman LLP Superior Court of California,
County of San Francisco
4 505 Sansome Street, 2nd Floor
San Francisco, California 94111 04/22/2021
Clerk of the Court
5 Telephone: 415.872.3200 BY: SANDRA SCHIRO
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, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
14 v. DEFENDANT’S MOTION TO COMPEL
DEPOSITION OF WITNESS AND FOR
15 PAYWARD, INC., a California Corporation SANCTIONS
d/b/a KRAKEN; and KAISER NG, an
16 individual; and DOES 1 through 10, inclusive, Filed Concurrently with Notice of Motion,
Declaration of Christopher LaVigne, and
17 Defendants. Proposed Order

18 [DISCOVERY]
19 Date: May 17, 2021
Time: 9:00 a.m.
20
The Hon. Ethan P. Schulman, Dept. 302
21
Action Filed: November 26, 2019
22 Trial Date: September 13, 2021

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B ERGMAN LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL DEPOSITION OF
WITNESS AND FOR SANCTIONS
1 TABLE OF CONTENTS
Page
2
I. INTRODUCTION ..................................................................................................................1
3
II. FACTS ...................................................................................................................................2
4
A. Runyon and his Counsel Obstructed Production of Responsive Documents.............2
5
1. Plaintiff and his Counsel Hid the Existence of Flash Drives
6 Containing Responsive Documents for Over a Year, Until the Day
before His Deposition, and Then Refused to Produce the Documents ..........2
7
2. Runyon Delayed Producing the Documents on the Flash Drives
8 despite the Court’s Order that He Produce Them Immediately .....................3

9 (a) Plaintiff’s Goal Was To Delay the Trial and Drive Up Costs ............4

10 B. Plaintiff Conspired with the Main Non-Party Witness to Obstruct Her
Appearance at Agreed-Upon Deposition in Order to Help Secure a Trial
11 Continuance ................................................................................................................5

12 C. Plaintiff Admitted to Spoliation of Evidence at his Deposition .................................7

13 III. ARGUMENT .........................................................................................................................8

14 A. The Main Third-Party Witness Must be Compelled to Attend Her
Deposition ..................................................................................................................8
15
B. Employee 5’s Refusal to Sit for Her Deposition Warrants Sanctions ........................8
16
C. Runyon’s Repeated Delay Tactics Warrant Sanctions .............................................10
17
1. The Revelation, But Non-Production, of Responsive Documents on
18 Eve of Runyon’s Deposition Entitles Defendants to Monetary
Sanctions ......................................................................................................10
19
2. Runyon and His Counsel Should be Sanctioned for Requiring
20 Defendants to Oppose Runyon’s Multiple Meritless Ex Parte
Applications .................................................................................................11
21
3. Sanctions are Warranted for Runyon’s Refusal to Produce the
22 Documents Until Runyon Had Forced Defendants to Agree to
Continue the Trial.........................................................................................13
23
D. Mr. Runyon’s Deliberate Spoliation of Records Warrants Sanctions ......................13
24
IV. CONCLUSION ....................................................................................................................14
25

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1 TABLE OF AUTHORITIES

2 Page(s)
3 Cases
4 Doe v. United States Swimming, Inc.
5 (2011) 200 Cal. App. 4th 1424 ...................................................................................................11

6 Herzig v. Arkansas Found. For Med. Care, Inc.,
2019 WL 2870106 (W.D. Ark. July 3, 2019) ............................................................................14
7
Irwin v. Department of Veterans Affairs,
8 498 U.S. 89 (1990) .....................................................................................................................10
9 Karwasky v. Zachay
(1983) 146 Cal. App. 3d 679 ......................................................................................................12
10

11 NewLife Scis., LLC v. Weinstock,
197 Cal. App. 4th 676 (2011) .....................................................................................................12
12
Sauer v. Superior Court
13 (1987) 195 Cal. App. 3d 213 ................................................................................................10, 11
14 Snyder v. Superior Court
(1970) 9 Cal. App. 3d 579 ......................................................................................................9, 10
15

16 Terry v. SLICO,
175 Cal. App. 4th 352 (2009) .................................................................................................8, 10
17
United States v. Lonich,
18 No. 14-cr-00139 (SI), 2016 WL 1733633 (N.D. Cal. May 2, 2016) .........................................13

19 Vallbona v. Springer
(1996) 43 Cal. App. 4th 1525 .....................................................................................................14
20
Williams v. Russ
21
(2008) 167 Cal. App. 4th 1215 ...................................................................................................13
22
Statutes
23
Code of Civil Procedure
24 §639 ............................................................................................................................................12
§845 ........................................................................................................................................3, 12
25 §1987.1 .........................................................................................................................................8
§1992 ..........................................................................................................................................10
26
§2020.220(c) ................................................................................................................................8
27 §2020.220(c) ................................................................................................................................9
§2020.240 ...............................................................................................................................8, 10
28 §2023.010 (b) .............................................................................................................................12
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B ERGMAN LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL DEPOSITION OF
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1 §2023.010 (c) .............................................................................................................................12
§2023.010(d) ....................................................................................................................9, 10, 12
2 §2023.010(d) ..............................................................................................................................13
§§2023.010(d)-(f) .......................................................................................................................10
3
§§2023.010(d)-(g) ......................................................................................................................13
4 §2023.010(e) ....................................................................................................................9, 10, 12
§2023.010(f) ...........................................................................................................................9, 10
5 §2023.010 (h) .............................................................................................................................12
§2023.030(c) ..............................................................................................................................14
6 §§2025.420(b)(9)-(11), (13)-(15) .................................................................................................8
§2025.480 .....................................................................................................................................8
7

8 Other Authorities

9 Local Rule of Court 6.0(B) ................................................................................................................4

10 Local Rule of Court 6.0(B) ..............................................................................................................12

12 Local Rule of Court 6.0(B) ..............................................................................................................16
13

18
19

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B ERGMAN LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL DEPOSITION OF
WITNESS AND FOR SANCTIONS
1 I. INTRODUCTION
2 Defendants Payward, Inc. (“Payward”) and Kaiser Ng (together with Payward, “Defendants”)

3 bring the instant Motion to Compel and for Sanctions against Plaintiff Nathan Peter Runyon (“Plaintiff”

4 or “Runyon”), his counsel, the case’s main third-party witness and her counsel, because they purposefully

5 (and successfully) obstructed Payward’s ability to obtain the witness’s deposition testimony and

6 responsive documents in light of Payward’s impending summary judgment deadline, all with the goal to

7 delay the case and force a trial continuance. The list of discovery transgressions is extensive:

8 • Plaintiff’s counsel revealed on the eve of Plaintiff’s deposition (and over a year after document
requests were issued by Payward) that relevant and responsive documents exist on flash drives
9 possessed by Plaintiff and his counsel since 2019.

10 • Plaintiff then refused to produce those documents absent a stipulation that Defendants consent to
(and help pay for) a forensic consultant to ensure that Plaintiff was compliant with his own
discovery obligations.
11
• When Payward refused, Plaintiff filed four frivolous ex parte motions to appoint a groundwater
12 rights “special master” to review those documents and to continue the trial (all of which had no
basis in law or fact and were rejected out of hand by the Court).
13
• Plaintiff directed the main witness in this case and her counsel to adopt these same frivolous
objections and prevent the witness from attending her deposition. The deposition date and time
14 had been volunteered by the witness and agreed to by Payward, after her counsel spent the better
portion of two months completely ignoring Payward’s valid deposition subpoenas and attempts
15 to schedule her deposition. After refusing to appear for her deposition, counsel for the witness
conveniently volunteered that the witness be deposed the day after Payward’s summary judgment
16 deadline. When Payward confronted the witness about her obvious (and explicit) coordination
with Plaintiff, the witness’s counsel revealed that the witness would not appear for a deposition
17 absent the same stipulation Plaintiff sought and was denied earlier.
18 • After this Court denied Plaintiff’s ex parte special master motions, Payward demanded production
of the flash drive documents, but Plaintiff claimed that the documents were not responsive and
19 the Court made no substantive rulings regarding production of the documents, and insisted
Payward sign the very type of stipulation the Court had rejected.
20
• Plaintiff stated to this Court that the documents were necessary for Defendants to consider prior
to their summary judgment submission. In light of the nonproduction of these documents and the
21 witness’s refusal to appear, and because Plaintiff refused to consent to shorten his time to respond
to a summary judgment motion (something his counsel had previously offered to do), Defendants
22 were forced to stipulate to a trial continuance.
23 • On the same day the Court granted the continuance, Plaintiff produced the documents without a
stipulation and without any explanation. As it turns out, these documents were not necessary at
24 all to Defendants’ summary judgment motion – they were screenshots and copies of Payward’s
own documents that Payward had already seen or produced, and the majority of the documents
25 were privileged and unusable.

27 These deliberate actions have prejudiced Defendants, caused unnecessary delay, and cost

28 Defendants significant attorneys’ fees. Additionally, Defendants have been unable to depose the main

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B ERGMAN LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL DEPOSITION OF WITNESS,
PRODUCTION OF RESPONSIVE DOCUMENTS AND FOR SANCTIONS
1 witness in this matter despite two unnecessary trial delays. For these reasons, Defendants seek to compel

2 the witness’s testimony and seek sanctions in the amounts set forth below.

3 II. FACTS
4 A. Runyon and his Counsel Obstructed Production of Responsive Documents
5 1. Plaintiff and his Counsel Hid the Existence of Flash Drives Containing Responsive
Documents for Over a Year, Until the Day before His Deposition, and Then Refused
6 to Produce the Documents

7 On February 24, 2020, Payward issued its first set of Requests for Production of Documents to

8 Runyon. (See Declaration of Christopher LaVigne, dated April 22, 2021 (“LaVigne Decl.”), Ex. 1.)

9 Request No. 29 sought “ALL DOCUMENTS and property belonging to, issued by, or owned by

10 PAYWARD,” and provided to Plaintiff during his employment, and Request No. 45 sought all documents

11 relating to any of Plaintiff’s whistleblowing activities. Plaintiff responded to Request No. 29 that he “will

12 comply in full with this Request and all documents or things in Plaintiff’s possession, custody and/or

13 control responsive to this Request will be included in the production.” Regarding Request No. 45, Plaintiff

14 stated he “made a diligent search and reasonable inquiry in an effort to comply with this Demand [but]

15 responsive documents are not in his possession [and] he believes that any and all documents that may be

16 responsive to this Demand are in the possession, custody or control of Defendant, Payward, Inc.”

17 (LaVigne Decl., Ex. 2, Requests No. 29, 45.)

18 On January 29, 2021, Payward issued a Notice of Deposition to Runyon, setting his deposition

19 on March 4, 2021. (LaVigne Decl., Ex. 3.) Runyon never objected to the deposition notice. However, one

20 day before his deposition, his counsel sent Payward an extraordinary letter advising that Plaintiff

21 possessed additional documents that he downloaded from Payward and stored on two USB flash drives.

22 (See LaVigne Decl. ¶7, Ex. 7.) Runyon and his counsel have possessed these documents since 2019

23 (LaVigne Decl., Ex. 6 at 206:5-11), and conceded they are relevant and responsive. 1 Yet they refused to

24 produce them, purportedly because some alleged “protocol” required that a special master be appointed

25 by this Court to create a forensic roadmap of the documents, in part due to Payward’s allegations in a

27
1
Runyon’s counsel represented to this Court, in submissions and in person that “Plaintiff’s counsel has in
their possession electronically stored documents that Plaintiff provided on a USB flash drive, which
28 substantiate that Defendants altered employees’ vesting schedules without consent of Payward’s Board of
Directors.” (Id., Ex. 7 at 1.)
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1 separate lawsuit that Runyon violated his confidentiality agreement with Payward. (LaVigne Decl., Ex.

2 7 at 1, Decl. of C. Cochran ¶10.)

3 Defendants moved forward with Runyon’s deposition and simultaneously demanded immediate

4 production of the documents. (See LaVigne Decl. ¶8, Ex. 5.) Plaintiff again refused to produce the

5 documents, claiming he could not produce the documents without Defendants’ stipulation to hire a joint

6 forensic expert to analyze the data on the flash drives.

7 2. Runyon Delayed Producing the Documents on the Flash Drives despite the Court’s
Order that He Produce Them Immediately
8

9 Instead of producing the documents, Plaintiff filed an ex parte application for a “special master”

10 before this Court. (See LaVigne Decl., Ex. 7.) This application was frivolous, as set forth in Payward’s

11 opposition to that motion (see LaVigne Decl., Ex. 8), and sought relief under CCP §845, which pertains

12 to groundwater rights. Payward was forced to expend resources to oppose to this ex parte application and

13 point out this obvious flaw. (LaVigne Decl. ¶12.) Plaintiff then failed to appear at the ex parte hearing on

14 March 12, 2021. (LaVigne Decl. ¶13.) At that hearing, this Court asked Payward to notify Runyon’s

15 counsel that the relief sought is not available under the groundwater rights statute. (See id.) Payward

16 relayed this message. (Id., Ex. 9.) However, Plaintiff filed another ex parte application on March 12, 2021,

17 moving under the same statute. (Id., Ex. 10.)

18 On March 15, 2021, this Court denied Runyon’s request for a special master, stated that he must

19 produce the documents without delay, and that he should simply retain a forensic specialist if he feels the

20 need to do so, because there is no reason for the Court to appoint, or to require Defendants to stipulate to

21 or pay for, someone to perform Plaintiff’s existing discovery obligations. (See LaVigne Decl. ¶15.) The

22 Court also rejected Plaintiff’s argument that “[n]o expert will touch these [flash] drives absent a

23 Stipulation or Court Order,” stating that Plaintiff should find a different forensic specialist without such

24 a requirement. (Id.)

25 Immediately after the March 15 hearing, Payward sent a letter to Plaintiff’s counsel requesting

26 production of the documents. (See LaVigne Decl., Ex. 11.) Plaintiff’s counsel responded that “the Judge”

27 did not “make any [] substantive rulings,” and claimed that the documents on the flash drives are not

28 “relevant to this litigation.” (Id., Ex. 12.) Then, ignoring this Court’s instructions, Runyon’s counsel

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B ERGMAN LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL DEPOSITION OF WITNESS,
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1 insisted that to produce the documents, Defendants must first sign an incredibly overbroad stipulation

2 absolving both Plaintiff and his counsel of any wrongdoing. (Id., Exs. 13 & 14.)

3 (a) Plaintiff’s Goal Was To Delay the Trial and Drive Up Costs

4 Plaintiff’s refusal to turn over these documents was part of an orchestrated effort, coordinated

5 with counsel for a main third party witness (see infra §II.B.) to again delay the trial date and buy more

6 time to run up Defendants’ costs and fees for another several months. During the parties’ meet and confer

7 efforts regarding disclosure of Plaintiff’s relevant medical records, Runyon’s counsel twice offered to

8 extend the deadline for Payward’s summary judgment motion, which was March 25, 2021, under the

9 then-existing July 17, 2021 trial date. (LaVigne Decl., Ex. 15.) Defendants declined these offers because

10 they believed they had enough time (more than twenty days after Plaintiff’s scheduled deposition) to

11 submit a timely motion. (LaVigne Decl. ¶22, Ex. 16.)

12 Plaintiff then changed course. The day before Plaintiff’s deposition, he revealed the existence of

13 the flash drives (see supra §II.A.1.) and sought to delay his deposition and continue the trial as the

14 documents were necessary “for use in” his deposition and for Defendants’ summary judgment motion.

15 (See LaVigne Decl., Ex. 7 (Decl. of C. Cochran ¶10).) After Defendants persisted, took Plaintiff’s

16 deposition on March 4, and demanded production of the documents (supra §II.A.2.), Plaintiff filed a

17 series of frivolous motions intended to prevent Defendants from meeting their summary judgment

18 deadline. The two frivolous special master motions were filed solely in order to provide Plaintiff cover

19 for simultaneously filing two equally frivolous ex parte motions for a trial continuance. (LaVigne Decl.

20 ¶23, Ex. 17.) Both ex parte applications to continue the trial were denied. 2 Responding to these four

21 separate ex parte applications cost Defendants significant amounts of time and money. (LaVigne Decl.

22 ¶25.) In addition, for four straight days, Defendants’ counsel was required to drop everything to analyze

23 and respond to each of the frivolous applications.

25 2
Plaintiff failed to provide Department 206 with courtesy copies of his first ex parte application for a trial
26 continuance and, for that reason, the Court refused to hear the application. The next day, Runyon re-filed his
ex parte application. Defendants did not agree to this continuance and were forced to oppose these motions
27 because Runyon was obligated to produce the documents from the flash drives without delay, which would
allow Defendants enough time to prepare a summary adjudication motion. (See LaVigne Decl., ¶24, Ex. 18.)
28 The Court denied the application because, in violation of Local Rule 6.0(B), a trial continuance is not
available on an ex parte basis absent the parties’ stipulation. (See id.)
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1 After these motions were denied, Runyon still refused to produce the flash drive documents and

2 insisted on a stipulation as a prerequisite for doing do. (Supra §II.A.2.) Because of this, with a little more

3 than a week to file a summary adjudication motion, Defendants could not meet the summary judgment

4 deadline and, on March 17, 2021, asked Plaintiff to shorten the notice period from 75 days to 45 days.

5 (LaVigne Decl., Ex. 19.) This should have been an uncontroversial request given that Runyon’s counsel

6 had already twice agreed to this. Instead, Plaintiff’s counsel rejected this request and suddenly claimed it

7 would “unfairly prejudice [her] client in preparing his Opposition and conducting discovery.” (LaVigne

8 Decl., Ex. 20.) Defendants were thus forced to enter into a stipulation and move ex parte to continue the

9 trial date. (LaVigne Decl. ¶28, Ex. 21 at 2 (“[D]espite their best efforts, Defendants have been unable to

10 obtain certain responsive documents ... which are preconditions to Defendants’ ability to file a summary

11 judgment motion.”)). The Court granted the trial continuance. (LaVigne Decl., Ex. 22.)

12 Having successfully forced Defendants to continue the trial,and on the same day the Court

13 granted the continuance, Runyon finally produced the flash drive documents, without any stipulation or

14 explanation. (LaVigne Decl., Ex. 23.) Additionally, despite that the entire basis of Runyon’s special

15 master motions were to create a “forensic roadmap” and produce ESI regarding the documents, the

16 production contained no metadata other than the production date.

17 B. Plaintiff Conspired with the Main Non-Party Witness to Obstruct Her Appearance at
Agreed-Upon Deposition in Order to Help Secure a Trial Continuance
18
19 Payward has tried, without success, to depose Plaintiff’s main non-party witness (“Employee 5”

20 in the First Amended Complaint (“FAC”)) since May 2020. This witness’s testimony is vital because she

21 is a former Payward employee whose vesting schedule was allegedly fraudulently changed by Payward

22 without Board approval. (FAC ¶¶33, 34, 105.) Yet, the witness’s lawyer has, at the direction of Plaintiff’s

23 counsel, played a never-ending game of bait and switch, culminating in the witness’s 11th hour refusal to

24 attend her agreed-upon deposition.

25 After the trialdate was continued for the first time, Defendants attempted to reschedule the

26 witness’s deposition in January 2021, but were completely ignored. (LaVigne Decl. ¶¶31-32, Exs. 24-

27 25.) On February 9, 2021, having not heard from Mr. Ford, Payward served a deposition subpoena on the

28 witness for February 24, 2021. (LaVigne Decl., Ex. 26.) A week later, and a week before the deposition,

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1 Payward was forced to again follow-up with Mr. Ford. (LaVigne Decl. ¶34.) Mr. Ford finally responded

2 that he was unavailable on February 24. (LaVigne Decl. ¶34, Ex. 27.)

3 After trying to reschedule for weeks, and after being ignored by Mr. Ford (LaVigne Decl. ¶35),

4 Payward’s counsel e-mailed Mr. Ford with a proposal. Payward deposed Employee 5 in a separate

5 arbitration on the exact same topics she would be deposed on in this case. Ms. Cochran, Plaintiff’s

6 attorney in this case, represented Employee 5 in that deposition. Payward offered to use Employee 5’s

7 arbitration testimony in this case in lieu of requiring her to sit for another deposition on identical topics

8 when she has two small children at home. (LaVigne Decl., Ex. 30.) Mr. Ford responded that Payward

9 needed to obtain agreement from Plaintiff’s counsel. (LaVigne Decl. Ex. 31). Ms. Cochran refused to

10 agree, claiming she did not get an opportunity to cross-examine this witness (that she represented) during

11 the prior deposition. (LaVigne Decl., Ex. 32.) Payward explained the illogic of this to Ms. Cochran

12 (LaVigne Decl. ¶39, Ex. 33), informed Mr. Ford of Ms. Cochran’s refusal, and asked again that he agree

13 to Payward’s proposal. (LaVigne Decl., Ex. 34) Mr. Ford never responded. (LaVigne Decl. ¶40.)

14 As a result, Payward served another deposition subpoena to Employee 5, setting her deposition

15 for March 11, 2021. (LaVigne Decl., Ex. 35.) Three days before the deposition, Mr. Ford claimed he was

16 not available on March 11, 2021, but was available on March 19 or 26, 2021. (LaVigne Decl., Ex. 36.)

17 Because March 26, 2021 was one day after Defendants’ summary judgment deadline, Payward agreed to

18 March 19. (LaVigne Decl., Ex. 37.)

19 Unwilling to allow this witness’s testimony to go forward before the summary judgment deadline,

20 Ms. Cochran and Mr. Ford concocted a series of meritless roadblocks. On March 15, Mr. Ford stated that

21 Plaintiff’s counsel told him that Payward must make a motion to compel in the arbitration in order for

22 Employee 5 to produce documents that Payward sought with its deposition subpoena in this case.

23 (LaVigne Decl., ¶44, Ex. 38.) This is contrary to the terms of the protective order in the arbitration.

24 (LaVigne Decl. ¶55.) In reality, Ms. Cochran was very blatantly working with Mr. Ford to stop the

25 deposition. She succeeded. On March 15, Ms. Cochran also instructed Mr. Ford to examine the witness’s

26 severance agreement with Payward before agreeing to the deposition. (LaVigne Decl. ¶¶45-46, Exs. 39-

27 40.) Mr. Ford then emailed Payward:

28 /////

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B ERGMAN LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL DEPOSITION OF WITNESS,
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1 Based on the [witness’s] employee offer and severance agreement, absent a stipulation
that her testimony will in no way violate either document, it will be difficult for [the
2 witness] to answer questions at deposition. Moreover, based on the attached protective
order, I am not sure that I will have documents for you by Friday absent your willingness
3 to work with Ms. Cochran on a stipulation.

4 (LaVigne Decl., Ex. 41.) Mr. Ford never said the witness would not attend her deposition, nor did he

5 move to quash the subpoena or for a protective order. On March 18, less than 48 hours before the

6 witness’s deposition, Mr. Ford e-mailed Defendants’ counsel that “[The witness] has a work conflict. She

7 cannot sit for her deposition tomorrow.” Mr. Ford then said he would not produce the witness for a

8 deposition until “the issues re the severance agreement and protective order are resolved.” (LaVigne

9 Decl., ¶¶48-50, Ex. 42.) The witness failed to appear for her March 19 deposition. (Id.)

10 C. Plaintiff Admitted to Spoliation of Evidence at his Deposition
11 At Plaintiff’s deposition, he admitted to knowingly sending self-deleting text messages and

12 making calls via the web application known as “Signal” 3 to Employee 5 about his allegations in this case.

13 Runyon testified that he understood that a hallmark of the Signal application is that it deletes records of

14 communications. (LaVigne Decl., Ex. 43 at 238:20-240:3.) He also testified that (1) he called Employee

15 5 via Signal when he was fired and told her that her vesting schedule was shorter than six years and (2)

16 he messaged Employee 5 over Signal at the time he filed his complaint, but could not recall the substance

17 of those messages. (See id. at 236:6-17.)

18 At the time these Signal communications were exchanged, litigation was contemplated. This is
19 evident from what Payward knows of the substance of Plaintiff’s now-deleted conversation with this

20 witness at the time of Plaintiff’s firing. (Id. at 234:11-235:1 (“[I] g[a]ve her a heads-up that her vesting

21 schedule was four years, and it wasn’t the six years that Kaiser had led her to believe... . I tried to fix it

22 the right way. As a result, I’m penalized for trying to fix it.”).) Additionally, Plaintiff took documents

23 from Payward “to cover my ass because it seemed like [Mr. Ng] was possibly going to throw me under

24 the bus for some of his stuff about changing people’s vesting schedules ... . And so I didn’t want it to

25 come bite me in the ass and be held liable for it.” (Id. at 230:12-22.) Also, Plaintiff copied his attorneys

26 on communications with Payward less than a month after he was terminated, sent Payward numerous

27 draft complaints shortly after his termination, and filed a complaint in November 2019. Runyon testified

28 3
These communications were responsive to Payward’s document requests. (LaVigne Decl. ¶53.)
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B ERGMAN LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL DEPOSITION OF WITNESS,
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1 that he deliberately used Signal and its auto-delete functionality, instead of other Wi-Fi based

2 communication applications that do not have this function (e.g., Whatsapp). (Id. at 241:9-18.)

3 III. ARGUMENT
4 A. The Main Third-Party Witness Must be Compelled to Attend Her Deposition
5 The main third-party witness in this case must be compelled to attend her deposition. Plaintiff’s

6 and Employee 5’s lawyers have made clear she will not appear absent a Court order. Employee 5 simply

7 ignored Payward’s repeated attempts to set a deposition date. Payward was forced to serve deposition

8 subpoenas without her input, only to be informed shortly before those deposition dates that she was

9 unavailable. (LaVigne Decl. ¶¶32-50.) The only support provided for her inability to attend was that the

10 subpoenas were “unilaterally noticed.” (LaVigne Decl., Ex. 27.) In any event, the witness never sought

11 Court relief, and Payward let it slide for the first two and retained hope that Mr. Ford was operating in

12 good faith and would produce the witness. Indeed, Mr. Ford eventually proposed, and Payward agreed

13 to, a date on which the witness was available. But in the week leading up to that date, the witness made

14 an increasing series of complaints and demands (including that Payward sign the same type of stipulation

15 this Court deemed unnecessary for Plaintiff’s production of documents), culminating in her last-minute

16 refusal to appear.

17 These complaints and demands are not proper objections to these subpoenas and Employee 5

18 must be compelled to appear and produce documents at a deposition. See CCP §1987.1 (permitting a

19 court to “direct[] compliance with [a subpoena] upon those terms or conditions as the court shall declare”);

20 CCP §2025.480; CCP §2020.220(c); Terry v. SLICO, 175 Cal. App. 4th 352, 355 (2009) (upholding

21 motion to compel and sanctions against nonparty who “did not object to the subpoena but failed to appear

22 at the deposition”). Indeed, if Employee 5 believes she has a legal basis on which to oppose her deposition

23 subpoena, then she can move for a protective order from the Court. See CCP §2025.420(b)(9)-(11), (13)-

24 (15). Employee 5 never did this, and instead has refused to attend a deposition, including one that she

25 voluntarily set. This conduct should not be countenanced, and Employee 5 must be compelled to appear

26 and produce documents.

27 B. Employee 5’s Refusal to Sit for Her Deposition Warrants Sanctions
28 Employee 5’s refusal to attend her deposition is punishable for contempt. CCP §2020.240 (“A

W ITHERS
NY28571/0001-US-9288961/4 8
B ERGMAN LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL DEPOSITION OF WITNESS,
PRODUCTION OF RESPONSIVE DOCUMENTS AND FOR SANCTIONS
1 deponent who disobeys a deposition subpoena in any manner described in subdivision (c) of Section

2 2020.220 may be punished for contempt ...without the necessity of a prior order of court directing

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

April 22, 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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