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WEBB LEGAL GROUP
155 Montgomery Street, Suite 1200
San Francisco, CA 94104
(415) 277-7200
WILLIAM T. WEBB #193832
JENNIFER D. YU #291603
155 Montgomery Street, Suite 1200
San Francisco, CA 94104
(415) 277-7200
(415) 277-7210 (fax)
Attorneys for BILLFLOAT, INC.,
RYAN GILBERT AND SEAN O’MALLEY
ELECTRONICALLY
FILED
Supertor Court of California,
County of San Francisco
07/14/2016
Clerk of the Court
BY-RONNIE OTERO,
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA.
IN AND FOR THE COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)
GOLDEN PACIFIC BANK, N.A.,
Plaintiff,
v.
BILLFLOAT, INC., RYAN GILBERT, SEAN
O’MALLEY, DOES 1-50,
Defendants.
BILLFLOAT, INC.
Cross-Complainant,
v.
GOLDEN PACIFIC BANK, N.A., and ROES
1-50,
Cross-Defendants.
) Case No.: CGC-16-549804
OPPOSITION TO PLAINTIFF’S
) SEPARATE STATEMENT IN SUPPORT
) OF ITS MOTION TO QUASH PMQ
DEPOSITION NOTICES; AND FOR
} PROTECTIVE ORDER
) Date: July 26, 2016
) Time: 9:30 a.m.
Dept: 302
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OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION
NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP
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L INTRODUCTION
Plaintiff and Cross-defendant Golden Pacific Bank, N.A.’s (“GPB”) has filed, for the first
time, a separate statement in support of its Supplemental Brief in Support of Golden Pacific’s
Motion to Quash PMQ Deposition Notices (“Motion”). GPB did not file a separate statement
when it first filed its Motion, in violation of California Rules of Court, rule 3.1345(c). Instead,
GPB simply asked the Court for further briefing as to the limited issue of what has transpired in
recent meet-and-confer efforts. California Rules of Court, rule 3.1345 explicitly mandates that a
separate statement must be “filed and served with the discovery motion,” and that it must be “full
and complete” at the time of filing. (California Rules of Court, rule 3.1345(c), emphasis added.)
(a) Separate statement required.
Any motion involving the content of a discovery request or the response to such a
request must be accompanied by a separate statement.
(California Rules of Court, rule 3.1345(a), emphasis added.) Therefore, GPB has failed to
comply with the explicit requirements of California Rules of Court, rule 3.1345. In the absence
of leave by the Court for GPB to file a late separate statement, its belated separate statement
should be disregarded by the Court, and the Motion summarily denied.
In the event the Court wishes to consider the substance of GPB’s separate statement,
Responding Party responds to the separate statement as herein.
1 ITEMS IN DISPUTE
A. PMQ Notice No. 1
1. ATTACHMENT A
MATTER NO. 1:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between and/or among YOUR agents and/or employees leading to the draft of the KEY
AGREEMENTS SUMMARY.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
“The court shall limit the scope of discovery if it determines that the burden, expense, or
intrusiveness of that discovery clearly outweighs the likelihood that the information sought will
lead to the discovery of admissible evidence.” Code of Civ. Proc. 2017.020(a). The court is
empowered to issue a protective order within the following limitations: ... (10) that the scope of
the examination be limited to certain matters. ... Code of Civ. Proc. § 2025.420(b). Finally, the
court shall restrict the frequency or extent of use of a discovery method if it determines "the
selected method of discovery is unduly burdensome.” Code of Civ. Proc. § 2019.030(a)(2).
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Furthermore, the notice “shall describe with reasonable particularity the matters on which
examination is requested.” Here, a request for testimony concerning “all COMMUNICATION
between or among Golden Pacific’s” “agents and/or employees” “leading to the draft of the KEY
AGREEMENTS SUMMARY” fails to have the requisite specificity. Communication is defined
broadly to reference “all discussions, conversations, negotiations, agreements, understandings,
meetings, telephone conversations, letters, notes, telegrams, advertisements, or other form of
information exchanged, whether oral, electronic or written.” Onstott Supp. Decl. J 9, Exh. E.
Other courts have rejected similar topics demanding testimony for “all communication.” See
Karnsey [sic] v Nationwide Ins. Co., 2007 WL 436577 (D. Conn 2007)(refusing to require a
deponent to testify concerning categories seeking “all communication,” on certain topics.).
In this context, what COMMUNICATIONS BillFloat believes “lead” to the draft of the
KEY AGREEMENT SUMMARY is unclear. “The reasonable particularity language in the
statute implies a requirement such categories be reasonably particularized from the standpoint of
the party who is subjected to the burden of producing the materials. Any other interpretation
places too great a burden on the party on whom the demand is made.” Calcor Space Facility, Inc.
v. Superior Court, 53 Cal.App.4th 216, 222 (1997). Here, noticed categories 1-3 in effect ask that
a deponent to come prepared to testify as to “all COMMUNICATION” that lead to KEY
AGREEMENTS SUMMARY. Such a designation is simply not feasible to prepare for.
Moreover, when Golden Pacific’s counsel tried to clarify the scope of the topic noticed, BillFloat
refused. See Declaration of Christopher Onstott in Support of Supplemental Brief in Support of
Motion to Quash (“Onstott Sup. Decl.”) 4, Exh. B. p.2.
Since the KEY AGREEMENTS summary was intended to be a summary of the key
agreements concerning the SmartBiz program up to that point, a// communications concerning the
program up to that time period would “lead” to the draft of the agreement. There are at least
4,336 documents produced by BillFloat and 1,346 documents produced by Golden Pacific
showing written communications between the parties from January 2013, to July 25, 2013, when
the KEY AGREEMENTS SUMMARY was executed alone. Declaration of Brittany Bruce in
Support of Motion to Quash at | 4. Accordingly, the burden easily outweighs any relevance of
the noticed topic. Moreover, the noticed category necessarily implicates communications
between Golden Pacific and its counsel and thus seeks information protected by work-product
and attorney-client privilege. There were several drafts of the Key Agreement Summary.
BillFloat fails to even specify to which draft they are referencing. Indeed, the executed version of
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the Key Agreement Summary, attached as Attachment D to the PMQ Notice No. 1., states that it
is the “Confidential draft of July 25, 2013.” Onstott Supp. Decl. J 9, Exh. E.
The category should be disallowed or limited to excise reference to all
COMMUNICATIONS and just notice testimony for the person most qualified to testify
concerning the “Drafts of the KEY AGREEMENTS SUMMARY.”
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
GPB did not ask the Court for leave to file a belated separate statement. Therefore, GPB
has failed to comply with the explicit requirements of CRC § 3.1345. In the absence of leave by
the Court for GPB to file a late separate statement, its belated separate statement should be
disregarded by the Court, and the Motion summarily denied.
The request, on its face, seeks to depose the person most qualified regarding documents
related to communications (among GPB personnel, between the parties, etc.) leading to the draft
key agreement summary. There is nothing vague or unexpected about this request, given that the
subject of this lawsuit filed by GPB involves, among other issues, the key agreements summary
(which both parties acknowledge exists).
GPB nevertheless complains that the term “communications” is too broad, because the
meaning of the term has been defined as incorporating communications in writing, oral or
electronic communications. Such a definition is necessary since communications in this day and
age takes many forms. Indeed, GPB would likely complain that the term is too vague if it were
left undefined. Defining the term, however, does not render this area of inquiry overly broad or
unduly burdensome — and certainly does not render the area of inquiry vague. The opposite is
true. GPB’s reliance on what appears to be an out-of-context Connecticut case for the proposition
that it need not produce a witness to discuss its internal or external, or any, communications is
misplaced — particularly where the area of inquiry involves issues in dispute between the parties,
where the rationale by the parties in reaching the agreements they did is at issue, and where
multiple other issues relate to communications within, and between, the parties.
In sum, the area of inquiry, as defined with painstaking particularity in this particular
request, is simply communications among GPB personnel (and between the parties, or with third
parties, etc.) leading to the Key Agreements Summary. There is nothing ambiguous about this
area of inquiry. GPB attempts to confuse the issue by pointing to the complexity of the
underlying agreement, or the terms contained therein. That the subject matter to be inquired
about may be complex or subject to multiple interpretations does not render the subject of inquiry
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overly broad. Indeed, that is precisely why inquiry as to this area is critical for the litigation, to
understand the other party’s knowledge, interpretations and actions with respect to complex
contractual language.
Counsel for GPB acknowledges in its separate statement that documents reflecting
relevant communications do exist, and even points to extensive documentation reflective of these
communications that have already been produced by the parties. While the number of documents
produced on the subject GPB lists may be exaggerated, the mere fact that extensive
documentation exists does not save GPB from producing a witness who can testify about these
documents. See, for example, State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc. (E.D.Pa.
2008) 250 F.R.D. 203, 207-208 (30(b)(6) deposition was proper although case involved
thousands of documents and “no witness or series of witnesses can know each one of the
documents”). GPB must simply designate an individual to testify “to the extent the information is
known and available” regarding the relevant area of inquiry. CCP § 2025.230.
Finally, GPB argues without citation to authority, that BillFloat’s use of “all”
communications in its deposition categories and inspection demands renders the notices unduly
burdensome. This simply is not true. See Fiorentino v. Cabot Oil & Gas Corp. (M.D. Pa.) 2011
WL 4944274 (finding that the use of “any and all” “documents” and “communications” for
several of the inspection demands was appropriate.)
MATTER NO. 2:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and BETTER FINANCE leading to the draft of the KEY AGREEMENTS
SUMMARY.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed topic seeks the same information as Matter No. 1, only as it respects
COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be
disallowed or limited the manner set forth with respect
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matter No. 1.
MATTER NO. 3:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and any third party (including, without limitation, any regulator) leading to the
draft of the KEY AGREEMENTS SUMMARY.
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GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed topic seeks the same information as Matter No. 1, only as it respects
COMMUNICATION between Golden Pacific and any third party. For the same reasons it should
be disallowed or limited in the manner set forth with respect to Matter No. 1.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matter No. 1.
MATTER NO. 4:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between and/or among YOUR agents and/or employees leading to the executed KEY
AGREEMENTS SUMMARY.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
The executed version of the Key Agreements Summary states that it is “Confidential Draft
of July 25, 2013.” Onstott Supp. Decl. 9, Exh. E at Attch. D. The reasons set forth with respect
to Matter No. 1, above, apply with equal weight to this noticed matter. Namely, the request is
overly burdensome and fails to be reasonably particularized. Here, a request for testimony
concerning “all COMMUNICATION between or among Golden Pacific’s” “agents and/or
employees” “leading to the executed KEY AGREEMENTS SUMMARY” fails to have the
requisite specificity. Communication is defined broadly to reference “all discussions,
conversations, negotiations, agreements, understandings, meetings, telephone conversations,
letters, notes, telegrams, advertisements, or other form of information exchanged, whether oral,
electronic or written.” Onstott Supp. Decl. { 9, Exh. E. Other courts have rejected similar topics
demanding testimony for “all communication.” See Karnsey [sic] v Nationwide Ins. Co., 2007
WL 436577 (D. Conn 2007)(refusing to require a deponent to testify concerning categories
seeking “all communication,” on certain topics.).
In this context, what COMMUNICATIONS BillFloat believes “lead” to the execution of
the KEY AGREEMENT SUMMARY is unclear. “The reasonable particularity language in the
statute implies a requirement such categories be reasonably particularized from the standpoint of
the party who is subjected to the burden of producing the materials. Any other interpretation
places too great a burden on the party on whom the demand is made.” Calcor Space Facility, Inc.
v. Superior Court, 53 Cal.App.4th 216, 222 (1997). Here, noticed categories 4-5 in effect ask that
a deponent to come prepared to testify as to “all COMMUNICATION” that lead to KEY
AGREEMENTS SUMMARY. Such a designation is simply not feasible to prepare for.
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Moreover, when Golden Pacific’s counsel tried to clarify the scope of the topic noticed through
the meet-and-confer process, BillFloat refused to provide such clarity. Onstott Sup. Decl. { 9,
Exh. E.
Since the KEY AGREEMENTS summary was intended to be a summary of the key
agreements concerning the SmartBiz program up to that point, a// communications concerning the
program up to that time period would “lead” to the executed agreement. There are at
approximately 4,336 written “communications” between the parties produced by BillFloat and
1,346 communications produced by Golden Pacific from January 2013, to July 25, 2013, when
the KEY AGREEMENTS SUMMARY was executed alone. Bruce Decl. 4. Accordingly, the
burden easily outweighs any relevance of the noticed topic. Moreover, the noticed category
necessarily implicates communications between Golden Pacific and its counsel and thus seeks
information protected by work-product and attorney-client privilege.
The category should be disallowed.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
This area of inquiry is essentially the same as that above, with the only exception this
deals with the executed agreement, and not the draft agreement. See the reasons set forth above
with respect to Matter No. 1.
MATTER NO. 5:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and BETTER FINANCE leading to the executed KEY AGREEMENTS,
SUMMARY.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed topic seeks the same information as Matter No. 4, only as it respects
COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be
disallowed.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matter No. 1.
MATTER NO. 6:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and any third party (including, without limitation, any regulator) leading to the
executed KEY AGREEMENTS SUMMARY.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
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This noticed topic seeks the same information as Matter No. 4, only as it respects
COMMUNICATION between any Third Party and Golden Pacific. For the same reasons it
should be disallowed.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matter No. 1.
MATTER NO. 8:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between and/or among YOUR agents and/or employees pertaining or referring to the terms of the
KEY AGREEMENTS SUMMARY prior to its execution on or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
The noticed matter fails because it is not reasonably particularized and because of the
burden it presents to a prospective deponent.
“The court shall limit the scope of discovery if it determines that the burden, expense, or
intrusiveness of that discovery clearly outweighs the likelihood that the information sought will
lead to the discovery of admissible evidence.” Code of Civ. Proc. 2017.020(a). Furthermore, the
notice “shall describe with reasonable particularity the matters on which examination is
requested.” Here, a request for testimony concerning “between and/or among YOUR agents
and/or employees pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY
prior to its execution on or about July 25, 2013” fails to have the requisite specificity. In
particular, Golden Pacific’s counsel attempted to meet and confer with BillFloat concerning what
was included within the scope of the term “pertaining” to the terms of the KEY AGREEMENTS
SUMMARY. Onstott Supp. Decl. 7 9, Exh. E. BillFloat’s counsel rejected this effort.
Taken literally, because the summary was intended to be a summary of the parties
respective agreements and roles with respect to the SmartBiz Program up to that point, literally all
COMMUNICATIONS regarding the SmartBiz program “pertained” to the terms of the KEY
AGREEMENTS SUMMARY. Indeed, the summary itself specifies that “Lender, Holdco, and
Technology Partner desire to memorialize their understandings with respect to the documentation
of their agreements and roles in providing the SmartBiz 7(a) Service.” /d., Exh. E.at Attch. D, p.
Lg.
Moreover, “COMMUNICATION?” is defined broadly to reference “all discussions,
conversations, negotiations, agreements, understandings, meetings, telephone conversations,
letters, notes, telegrams, advertisements, or other form of information exchanged, whether oral,
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electronic or written.” Onstott Supp. Decl. { 9, Exh. E., p. 2. Other courts have rejected similar
topics demanding testimony for “‘all communication.” See Karnsey [sic] v Nationwide Ins. Co.,
2007 WL 436577 (D. Conn 2007)(refusing to require a deponent to testify concerning categories
seeking “all communication,” on certain topics.).
In this context, what COMMUNICATIONS BillFloat believes “pertain” to the terms of
the KEY AGREEMENT SUMMARY is unclear. The summary itself is 5 pages in length and 13
sectioned paragraphs. BillFloat fails to identify what specific term or provision it needs
information concerning. “The reasonable particularity language in the statute implies a
requirement such categories be reasonably particularized from the standpoint of the party who is
subjected to the burden of producing the materials. Any other interpretation places too great a
burden on the party on whom the demand is made.” Calcor Space Facility, Ine. v. Superior
Court, 53 Cal.App.4th 216, 222 (1997). Here, noticed categories 8-10 in effect ask that a
deponent to come prepared to testify as to “all COMMUNICATION?” that pertain to an
Agreement that was intended to be a summary of the parties respective roles and agreements up
to that point. Such a designation is simply not feasible to prepare for. Moreover, when Golden
Pacific’s counsel tried to clarify the scope of the topic noticed, BillFloat refused. Onstott Sup.
Decl. { 6-7.
Since the KEY AGREEMENTS summary was intended to be a summary of the key
agreements concerning the SmartBiz program up to that point, a// communications concerning the
program up to that time period would “lead” to the draft of the agreement. Before its
implementation, there were more than 5,000 written documents produced by the parties showing
communications from January 2013 to July 2013, when the summary was executed. Bruce Decl.
4|4. Accordingly, the burden easily outweighs any relevance of the noticed topic. Moreover, the
noticed category necessarily implicates communications between Golden Pacific and its counsel
and thus seeks information protected by work-product and attorney-client privilege. Moreover,
there were several drafts of the Key Agreement Summary. BillFloat fails to even specify to
which draft they are referencing. Indeed, the executed version of the Key Agreement Summary,
attached as Attachment D to the PMQ Notice No. 1., states that it is the “Confidential draft of
July 25, 2013.” Onstott Supp. Decl. § 9, Exh. E. at Attch. D.
The category should be disallowed or limited to excise reference to all
COMMUNICATIONS and just notice testimony for the person most qualified to testify
concerning what specific term of the agreement it needs further information to understand.
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REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matter No. 1. Again, the area of inquiry is
communications relating to a subject matter which is admittedly at issue in the litigation.
Furthermore, these communications patently exist, as admitted by counsel for GPB. Therefore,
this area of inquiry is set forth with particularity and a person with knowledge of this area of
inquiry should be produced.
MATTER NO. 9:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and BETTER FINANCE pertaining or referring to the terms of the KEY
AGREEMENTS SUMMARY prior to its execution on or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed topic seeks the same information as Matter No. 8, only as it respects
COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be
disallowed or limited as set forth with respect to Matter No. 8.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matter No. 1.
MATTER NO. 10:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and any third party (including, without limitation, any regulator) pertaining or
referring to the terms of the KEY AGREEMENTS SUMMARY prior to its execution on or about
July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed topic seeks the same information as Matter No. 8, only as it respects
COMMUNICATION between Third Parties and Golden Pacific. For the same reasons it should
be disallowed or limited as set forth with respect to Matter No. 8.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matter No. 1.
MATTER NO. II:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between and/or among YOUR agents and/or employees pertaining or referring to the terms of the
KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
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The noticed matter fails because it is not reasonably particularized and because of the
burden it presents to a prospective deponent.
“The court shall limit the scope of discovery if it determines that the burden, expense, or
intrusiveness of that discovery clearly outweighs the likelihood that the information sought will
lead to the discovery of admissible evidence.” Code of Civ. Proc. 2017.020(a). Furthermore, the
notice “shall describe with reasonable particularity the matters on which examination is
requested.” Here, a request for testimony concerning “between and/or among YOUR agents
and/or employees pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY
after its execution on or about July 25, 2013” fails to have the requisite specificity. In particular,
Golden Pacific’s counsel attempted to meet and confer with BillFloat concerning what was
included within the scope of the term “pertaining” to the terms of the KEY AGREEMENTS
SUMMARY. Onstott Supp. Decl. {f 3-7, Exhs. B-D. BillFloat’s counsel rejected this effort. 7d.
Here, literally all communications about the SmartBiz program after the summary’s
execution on July 25, 2013 “pertain” to its terms. Indeed, the summary explicitly references the
fact that the summary “sets forth the good faith understandings of Lender, Holdco and
Technology Provider with respect to the objectives and roles described above, which they expect
to implement by appropriate written agreements to be prepared following execution of this
Summary.” Onstott Supp. Decl. §/ 9, Exh. E at Attch. D, p.1 (Key Agreements Summary at
Paragraph G). Those agreements were eventually executed in the form of the licensing
agreement, and the marketing and amended marketing agreements. Literally every action and
communication concerning the SmartBiz Program taken after July 25, 2016 would in some
manner pertain to the terms of the summary. This is why Golden Pacific tried to meet and confer
on the scope of this matter. Accordingly, every loan application that was part of the SmartBiz
Program, every communication between the parties, and every communication between Golden
Pacific and third parties referencing the Smart Biz program are encompassed within noticed
matters 11-13. Referencing the productions to date alone, there are approximately 9,000
documents comprising communications would be responsive to the noticed matters. See Bruce
Decl. 4 (d).
Moreover, “COMMUNICATION?” is defined broadly to reference “all discussions,
conversations, negotiations, agreements, understandings, meetings, telephone conversations,
letters, notes, telegrams, advertisements, or other form of information exchanged, whether oral,
electronic or written.” Onstott Supp. Decl. § 9. Other courts have rejected similar topics
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demanding testimony for “all communication.” See Karnsey [sic] v Nationwide Ins. Co., 2007
WL 436577 (D. Conn 2007)(refusing to require a deponent to testify concerning categories
seeking “all communication,” on certain topics.). Referencing the productions to date alone,
more than 9,000 documents comprising communications would be responsive to the noticed
matter when read literally.
In this context, what COMMUNICATIONS BillFloat believes “pertain” to the terms of
the KEY AGREEMENT SUMMARY is unclear. The summary itself is 5 pages in length and 13
sectioned paragraphs. BillFloat fails to identify what specific term or provision it needs
information concerning. “The reasonable particularity language in the statute implies a
requirement such categories be reasonably particularized from the standpoint of the party who is
subjected to the burden of producing the materials. Any other interpretation places too great a
burden on the party on whom the demand is made.” Calcor Space Facility, Inc. v. Superior
Court, 53 Cal.App.4th 216, 222 (1997). Here, noticed categories 8-10 in effect ask that a
deponent to come prepared to testify as to “all COMMUNICATION?” that pertain to an
Agreement that was intended to be a summary of the parties respective roles and agreements up
to that point. Such a designation is simply not feasible to prepare for. Moreover, when Golden
Pacific’s counsel tried to clarify the scope of the topic noticed, BillFloat refused. Onstott Sup.
Decl. §[ 3-7.
Accordingly, the burden easily outweighs any relevance of the noticed topic. Moreover,
the noticed category necessarily implicates communications between Golden Pacific and its
counsel and thus seeks information protected by work-product and attorney-client privilege.
The category should be disallowed or limited to excise reference to all
COMMUNICATIONS and just notice testimony for the person most qualified to testify
concerning what specific term of the Key Agreements Summary BillFloat needs further
information to understand,
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matter No. 1.
MATTER NO. 12:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between and/or among YOUR agents and/or employees pertaining or referring to the terms of the
KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
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This noticed topic seeks the same information as Matter No. 11, only as it respects
COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be
disallowed or limited as set forth with respect to Matter No. 11.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matter No. 1.
MATTER NO. 13:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and BETTER FINANCE pertaining or referring to the terms of the KEY
AGREEMENTS SUMMARY after its execution on or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed topic seeks the same information as Matter No. 11, only as it respects
COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be
disallowed or limited as set forth with respect to Matter No. 11.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
Sce the reasons set forth above with respect to Matter No. 1.
MATTER NO. 14:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and any third party (including, without limitation, any regulator) pertaining or
referring to the terms of the KEY AGREEMENTS SUMMARY after its execution on or about
July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed topic secks the same information as Matter No. 11, only as it respects
COMMUNICATION between third parties and Golden Pacific. For the same reasons it should
be disallowed or limited as set forth with respect to Matter No. 11.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matter No. 1.
MATTER NO. 15:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between and/or among YOUR agents and/or employees pertaining or referring to the term
“SmartBiz™ 7(a) Program” used in the KEY AGREEMENTS SUMMARY.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This matter should be quashed because it imposes an unreasonable burden on the
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deponent and because the noticed matter is not reasonably particularized. The term SmartBiz or
SmartBiz 7(a) was used often as a shorthand for the entire SmartBiz program itself. SmartBiz is
referenced in 7,609 documents in BillFloat’s production alone. Out of Golden Pacific’s
production, the reference to SmartBiz is 7,554. Bruce Decl. § 2. Moreover, Golden Pacific tried
to meet and confer with BillFloat concerning what the scope of the term “pertain” encompassed.
Here, almost every communication between the parties “pertains” to the SmartBiz Program.
There are literally tens of thousands of pages of documents and thousands of communications at
issue in this case. Varela Decl. §{ 3-6. This would require an extensive and burdensome review
of documents, emails, and gathering information from others to prepare to testify concerning this
topic.
Moreover, as set forth above, the reference to all COMMUNICATIONS in this noticed
matter is overbroad, and unduly burdensome and fails to set forth the noticed matter with
reasonable particularity. “COMMUNICATION?” is defined broadly to reference “all discussions,
conversations, negotiations, agreements, understandings, meetings, telephone conversations,
letters, notes, telegrams, advertisements, or other form of information exchanged, whether oral,
electronic or written.” Onstott Supp. Decl. ¢ 9, Exh. E. Other courts have rejected similar topics
demanding testimony for “all communication.” See Karnsey [sic] v Nationwide Ins. Co., 2007
WL 436577 (D. Conn 2007)(refusing to require a deponent to testify concerning categories
seeking “all communication,” on certain topics.).
There are thousands of communications at issue concerning the SmartBiz program and
more than 15,000 documents have been produced that reference SmartBiz. Bruce Decl. § 2;
Varela Decl. §] 3-6. See Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D.
135, 150 (S.D.N.Y. 1997) (deposition of person most knowledgeable "is not designed to be a
memory contest"); State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 207-
208 (E.D. Pa. 2008) ("in a case such as this, involving thousands of documents, particularly
documents which are documents that reflect their business transactions, no witness or series of
witnesses can know each one of the documents, but at least a business practice can be inquired
into, and to what extent is the production consistent with that business practice.").
BillFloat has failed to limit the scope of the term in any measurable way or provide
guidance to Golden Pacific’s deponent concerning what, specifically, it is about the term that
BillFloat wishes to inquire. The noticed matter should be disallowed.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
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See the reasons set forth above with respect to Matter No. 1. Counsel for GPB defines for
the court the contractual term “SmartBiz™ 7(a) Program” and then proceeds to argue that this
area of inquiry is too broad and somehow undefined because there are thousands of references to
this program in the parties’ document production. That there are so many references to the
program at the heart of this litigation merely reflects the importance of this area of inquiry. That
the parties have produced so many documents relating to this area of inquiry ratifies that this is
not just a relevant, but critical, area of inquiry. See, State Farm Mut. Auto. Ins. Co., supra, 250
F.R.D. at 208 (deposition was proper although case involved thousands of documents and “no
witness or series of witnesses can know each one of the documents”). GPB may not seek to hide
behind disingenuous arguments that the term “communications” is too broad, even when
specifically defined for them, to try to avoid this admittedly relevant area of inquiry at deposition.
MATTER NO. 16:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and BETTER FINANCE pertaining or referring to the term “SmartBiz™ 7(a)
Program” used in the KEY AGREEMENTS SUMMARY.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed topic seeks the same information as Matter No. 15, only as it respects
COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be
disallowed or limited as set forth with respect to Matter No. 15.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matters No. 1 and 15.
MATTER NO. 17:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and any third party (including, without limitation, any regulator) pertaining or
referring to the term “SmartBiz™ 7(a) Program” used in the KEY AGREEMENTS SUMMARY.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed topic seeks the same information as Matter No. 15, only as it respects
COMMUNICATION between third parties and Golden Pacific. For the same reasons it should
be disallowed or limited as set forth with respect to Matter No. 15.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matters No. | and 15.
MATTER NO. 18:
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The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between and/or among YOUR agents and/or employees pertaining or referring to the terms of the
KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed mater is effectively identical to matter no. 11 above. For the same reasons as
set forth above, the matter should be disallowed or greatly limited.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matters No. | and 15.
MATTER NO. 19:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and BETTER FINANCE pertaining or referring to the terms of the KEY
AGREEMENTS SUMMARY after its execution on or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed mater is effectively identical to matter no. 12 above. For the same reasons as
set forth above, the matter should be disallowed or greatly limited.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matters No. 1 and 15.
MATTER NO. 20:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and any third party (including, without limitation, any regulator) pertaining or
referring to the terms of the KEY AGREEMENTS SUMMARY after its execution on or about
July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
This noticed mater is effectively identical to matter no. 13 above. For the same reasons as
set forth above, the matter should be disallowed or greatly limited.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matters No. | and 15.
MATTER NO. 21:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between and/or among YOUR agents and/or employees pertaining or referring to the term “*
favored nation’ status” used in paragraph (9) of the KEY AGREEMENTS SUMMARY prior to
its execution on or about July 25, 2013.
‘most
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GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
The noticed matter fails because it’s [sic] use of the terms “pertaining” and
COMMUNICATION causes the request to be unduly burdensome and to lack reasonable
particularity. While the scope of the noticed matter is not as large as some of those set forth
above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to
all communications currently in its possession referencing the term Most Favored Nation.”
However, as part of 456 separately noticed matters, the burden becomes too great on the
deponent.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matters No. 1 and 15. As to this area of
inquiry, GPB claims that because the terms “pertaining to” and its synonym “referring to” was
used, again to describe the matter of inquiry with as much particularity as possible, it should not
be inquired about because it is too burdensome and, apparently, described with too much
particularity. GPB’s assertions lack any merit. Cardenas v. Dorel Juvenile Group, Inc. (D. Kan.
2005) 230 F.R.D. 611, 624 (“the Court does not find this request to be facially overbroad merely
because it uses the terms ‘discuss, refer, relate or pertain to’”).
MATTER NO. 22:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and BETTER FINANCE pertaining or referring to the term “‘most favored nation’
status” used in paragraph (9) of the KEY AGREEMENTS SUMMARY prior to its execution on
or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
The noticed matter fails because it’s [sic] use of the terms “pertaining” and
COMMUNICATION causes the request to be unduly burdensome and to lack reasonable
particularity. While the scope of the noticed matter is not as large as some of those set forth
above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to
all communications currently in its possession referencing the term Most Favored Nation” prior to
the summary’s execution. However, as part of 456 separately noticed matters, the burden
becomes too great on the deponent.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matters No. 1 and 22.
MATTER NO. 23:
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The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and any third party (including, without limitation, any regulator) pertaining or
referring to the term “‘most favored nation’ status” used in paragraph (9) of the KEY
AGREEMENTS SUMMARY prior to its execution on or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
The noticed matter fails because it’s [sic] use of the terms “pertaining” and
COMMUNICATION causes the request to be unduly burdensome and to lack reasonable
particularity. While the scope of the noticed matter is not as large as some of those set forth
above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to
all communications currently in its possession referencing the term Most Favored Nation” prior to
the summary’s execution. However, as part of 456 separately noticed matters, the burden
becomes too great on the deponent.
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matters No. | and 22.
MATTER NO. 24:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between and/or among YOUR agents and/or employees pertaining or referring to the term “‘most
favored nation’ status” used in paragraph (9) of the KEY AGREEMENTS SUMMARY after its
execution on or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
The noticed matter fails because it’s [sic] use of the terms “pertaining” and
COMMUNICATION causes the request to be unduly burdensome and to lack reasonable
particularity. While the scope of the noticed matter is not as large as some of those set forth
above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to
all communications currently in its possession referencing the term Most Favored Nation” prior to
the execution of the summary. The use of the term pertaining in this instance, however, is
uncertain and BillFloat has failed to provide any explanation of what it views to be the parameters
of this noticed matter. As part of 456 separately noticed matters, the burden becomes too great on
the deponent. Golden Pacific suggests that the matter be limited to “Golden Pacific’s
understanding of the meaning of the term most favored nation status at the time of the execution
of the summary and the basis for that understanding.”
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
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See the reasons set forth above with respect to Matters No. | and 22.
In addition, the Court should not re-write the category to suit GPB’s one-sided agenda. It
wants to limit the questioning regarding the cited contractual language to GPB’s “understanding”
of the provision. However, limiting the category this way is designed to prevent BillFloat from
asking questions that would refute any basis for any such understanding. The Court should not
prevent legitimate discovery in this manner.
MATTER NO. 25:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
between YOU and BETTER FINANCE pertaining or referring to the term “‘most favored nation’
status” used in paragraph (9) of the KEY AGREEMENTS SUMMARY after its execution on or
about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
The noticed matter fails because it’s [sic] use of the terms “pertaining” and
COMMUNICATION causes the request to be unduly burdensome and to lack reasonable
particularity. While the scope of the noticed matter is not as large as some of those set forth
above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to
all communications currently in its possession referencing the term Most Favored Nation” prior to
the execution of the summary. The use of the term pertaining in this instance, however, is
uncertain and BillFloat has failed to provide any explanation of what it views to be the parameters
of this noticed matter. As party [sic] of 456 separately noticed matters, the burden becomes too
great on the deponent. Golden Pacific suggests that the matter be limited to “Golden Pacific’s
understanding of the meaning of the term most favored nation status at the time of the execution
of the summary and the basis for that understanding.”
REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY:
See the reasons set forth above with respect to Matters No. 1 and 22.
In addition, the Court should not re-write the category to suit GPB’s one-sided agenda. It
wants to limit the questioning regarding the cited contractual language to GPB’s “understanding”
of the provision. However, limiting the category this way is designed to prevent BillFloat from
asking questions that would refute any basis for any such understanding. The Court should not
prevent legitimate discovery in this manner.
MATTER NO. 26:
The PERSON(s) most qualified to testify regarding any and all COMMUNICATION
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between YOU and any third party (including, without limitation, any regulator) pertaining or
referring to the term “‘
AGREEMENTS SUMMARY after its execution on or about July 25, 2013.
GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED:
most favored nation’ status” used in paragraph (9) of the KEY
The noticed matter fails because it’s [sic] use of the terms “pertaining” and
COMMUNICATION causes the request to be unduly burdensome and to lack reasonable
particularity. While the scope of the noticed matter is not as large as some of those set forth
above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to
all
Preview
WEBB LEGAL GROUP 155 Montgomery Street, Suite 1200 San Francisco, CA 94104 (415) 277-7200 WILLIAM T. WEBB #193832 JENNIFER D. YU #291603 155 Montgomery Street, Suite 1200 San Francisco, CA 94104 (415) 277-7200 (415) 277-7210 (fax) Attorneys for BILLFLOAT, INC., RYAN GILBERT AND SEAN O’MALLEY ELECTRONICALLY FILED Supertor Court of California, County of San Francisco 07/14/2016 Clerk of the Court BY-RONNIE OTERO, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA. IN AND FOR THE COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) GOLDEN PACIFIC BANK, N.A., Plaintiff, v. BILLFLOAT, INC., RYAN GILBERT, SEAN O’MALLEY, DOES 1-50, Defendants. BILLFLOAT, INC. Cross-Complainant, v. GOLDEN PACIFIC BANK, N.A., and ROES 1-50, Cross-Defendants. ) Case No.: CGC-16-549804 OPPOSITION TO PLAINTIFF’S ) SEPARATE STATEMENT IN SUPPORT ) OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR } PROTECTIVE ORDER ) Date: July 26, 2016 ) Time: 9:30 a.m. Dept: 302 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = ae Re Bs Ee Eta gs 2g 3 L INTRODUCTION Plaintiff and Cross-defendant Golden Pacific Bank, N.A.’s (“GPB”) has filed, for the first time, a separate statement in support of its Supplemental Brief in Support of Golden Pacific’s Motion to Quash PMQ Deposition Notices (“Motion”). GPB did not file a separate statement when it first filed its Motion, in violation of California Rules of Court, rule 3.1345(c). Instead, GPB simply asked the Court for further briefing as to the limited issue of what has transpired in recent meet-and-confer efforts. California Rules of Court, rule 3.1345 explicitly mandates that a separate statement must be “filed and served with the discovery motion,” and that it must be “full and complete” at the time of filing. (California Rules of Court, rule 3.1345(c), emphasis added.) (a) Separate statement required. Any motion involving the content of a discovery request or the response to such a request must be accompanied by a separate statement. (California Rules of Court, rule 3.1345(a), emphasis added.) Therefore, GPB has failed to comply with the explicit requirements of California Rules of Court, rule 3.1345. In the absence of leave by the Court for GPB to file a late separate statement, its belated separate statement should be disregarded by the Court, and the Motion summarily denied. In the event the Court wishes to consider the substance of GPB’s separate statement, Responding Party responds to the separate statement as herein. 1 ITEMS IN DISPUTE A. PMQ Notice No. 1 1. ATTACHMENT A MATTER NO. 1: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between and/or among YOUR agents and/or employees leading to the draft of the KEY AGREEMENTS SUMMARY. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” Code of Civ. Proc. 2017.020(a). The court is empowered to issue a protective order within the following limitations: ... (10) that the scope of the examination be limited to certain matters. ... Code of Civ. Proc. § 2025.420(b). Finally, the court shall restrict the frequency or extent of use of a discovery method if it determines "the selected method of discovery is unduly burdensome.” Code of Civ. Proc. § 2019.030(a)(2). 1 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 Furthermore, the notice “shall describe with reasonable particularity the matters on which examination is requested.” Here, a request for testimony concerning “all COMMUNICATION between or among Golden Pacific’s” “agents and/or employees” “leading to the draft of the KEY AGREEMENTS SUMMARY” fails to have the requisite specificity. Communication is defined broadly to reference “all discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations, letters, notes, telegrams, advertisements, or other form of information exchanged, whether oral, electronic or written.” Onstott Supp. Decl. J 9, Exh. E. Other courts have rejected similar topics demanding testimony for “all communication.” See Karnsey [sic] v Nationwide Ins. Co., 2007 WL 436577 (D. Conn 2007)(refusing to require a deponent to testify concerning categories seeking “all communication,” on certain topics.). In this context, what COMMUNICATIONS BillFloat believes “lead” to the draft of the KEY AGREEMENT SUMMARY is unclear. “The reasonable particularity language in the statute implies a requirement such categories be reasonably particularized from the standpoint of the party who is subjected to the burden of producing the materials. Any other interpretation places too great a burden on the party on whom the demand is made.” Calcor Space Facility, Inc. v. Superior Court, 53 Cal.App.4th 216, 222 (1997). Here, noticed categories 1-3 in effect ask that a deponent to come prepared to testify as to “all COMMUNICATION” that lead to KEY AGREEMENTS SUMMARY. Such a designation is simply not feasible to prepare for. Moreover, when Golden Pacific’s counsel tried to clarify the scope of the topic noticed, BillFloat refused. See Declaration of Christopher Onstott in Support of Supplemental Brief in Support of Motion to Quash (“Onstott Sup. Decl.”) 4, Exh. B. p.2. Since the KEY AGREEMENTS summary was intended to be a summary of the key agreements concerning the SmartBiz program up to that point, a// communications concerning the program up to that time period would “lead” to the draft of the agreement. There are at least 4,336 documents produced by BillFloat and 1,346 documents produced by Golden Pacific showing written communications between the parties from January 2013, to July 25, 2013, when the KEY AGREEMENTS SUMMARY was executed alone. Declaration of Brittany Bruce in Support of Motion to Quash at | 4. Accordingly, the burden easily outweighs any relevance of the noticed topic. Moreover, the noticed category necessarily implicates communications between Golden Pacific and its counsel and thus seeks information protected by work-product and attorney-client privilege. There were several drafts of the Key Agreement Summary. BillFloat fails to even specify to which draft they are referencing. Indeed, the executed version of 2 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = ae Re Bs Ee Eta gs 2g 3 the Key Agreement Summary, attached as Attachment D to the PMQ Notice No. 1., states that it is the “Confidential draft of July 25, 2013.” Onstott Supp. Decl. J 9, Exh. E. The category should be disallowed or limited to excise reference to all COMMUNICATIONS and just notice testimony for the person most qualified to testify concerning the “Drafts of the KEY AGREEMENTS SUMMARY.” REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: GPB did not ask the Court for leave to file a belated separate statement. Therefore, GPB has failed to comply with the explicit requirements of CRC § 3.1345. In the absence of leave by the Court for GPB to file a late separate statement, its belated separate statement should be disregarded by the Court, and the Motion summarily denied. The request, on its face, seeks to depose the person most qualified regarding documents related to communications (among GPB personnel, between the parties, etc.) leading to the draft key agreement summary. There is nothing vague or unexpected about this request, given that the subject of this lawsuit filed by GPB involves, among other issues, the key agreements summary (which both parties acknowledge exists). GPB nevertheless complains that the term “communications” is too broad, because the meaning of the term has been defined as incorporating communications in writing, oral or electronic communications. Such a definition is necessary since communications in this day and age takes many forms. Indeed, GPB would likely complain that the term is too vague if it were left undefined. Defining the term, however, does not render this area of inquiry overly broad or unduly burdensome — and certainly does not render the area of inquiry vague. The opposite is true. GPB’s reliance on what appears to be an out-of-context Connecticut case for the proposition that it need not produce a witness to discuss its internal or external, or any, communications is misplaced — particularly where the area of inquiry involves issues in dispute between the parties, where the rationale by the parties in reaching the agreements they did is at issue, and where multiple other issues relate to communications within, and between, the parties. In sum, the area of inquiry, as defined with painstaking particularity in this particular request, is simply communications among GPB personnel (and between the parties, or with third parties, etc.) leading to the Key Agreements Summary. There is nothing ambiguous about this area of inquiry. GPB attempts to confuse the issue by pointing to the complexity of the underlying agreement, or the terms contained therein. That the subject matter to be inquired about may be complex or subject to multiple interpretations does not render the subject of inquiry 3 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 overly broad. Indeed, that is precisely why inquiry as to this area is critical for the litigation, to understand the other party’s knowledge, interpretations and actions with respect to complex contractual language. Counsel for GPB acknowledges in its separate statement that documents reflecting relevant communications do exist, and even points to extensive documentation reflective of these communications that have already been produced by the parties. While the number of documents produced on the subject GPB lists may be exaggerated, the mere fact that extensive documentation exists does not save GPB from producing a witness who can testify about these documents. See, for example, State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc. (E.D.Pa. 2008) 250 F.R.D. 203, 207-208 (30(b)(6) deposition was proper although case involved thousands of documents and “no witness or series of witnesses can know each one of the documents”). GPB must simply designate an individual to testify “to the extent the information is known and available” regarding the relevant area of inquiry. CCP § 2025.230. Finally, GPB argues without citation to authority, that BillFloat’s use of “all” communications in its deposition categories and inspection demands renders the notices unduly burdensome. This simply is not true. See Fiorentino v. Cabot Oil & Gas Corp. (M.D. Pa.) 2011 WL 4944274 (finding that the use of “any and all” “documents” and “communications” for several of the inspection demands was appropriate.) MATTER NO. 2: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and BETTER FINANCE leading to the draft of the KEY AGREEMENTS SUMMARY. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed topic seeks the same information as Matter No. 1, only as it respects COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be disallowed or limited the manner set forth with respect REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matter No. 1. MATTER NO. 3: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and any third party (including, without limitation, any regulator) leading to the draft of the KEY AGREEMENTS SUMMARY. 4 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed topic seeks the same information as Matter No. 1, only as it respects COMMUNICATION between Golden Pacific and any third party. For the same reasons it should be disallowed or limited in the manner set forth with respect to Matter No. 1. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matter No. 1. MATTER NO. 4: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between and/or among YOUR agents and/or employees leading to the executed KEY AGREEMENTS SUMMARY. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: The executed version of the Key Agreements Summary states that it is “Confidential Draft of July 25, 2013.” Onstott Supp. Decl. 9, Exh. E at Attch. D. The reasons set forth with respect to Matter No. 1, above, apply with equal weight to this noticed matter. Namely, the request is overly burdensome and fails to be reasonably particularized. Here, a request for testimony concerning “all COMMUNICATION between or among Golden Pacific’s” “agents and/or employees” “leading to the executed KEY AGREEMENTS SUMMARY” fails to have the requisite specificity. Communication is defined broadly to reference “all discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations, letters, notes, telegrams, advertisements, or other form of information exchanged, whether oral, electronic or written.” Onstott Supp. Decl. { 9, Exh. E. Other courts have rejected similar topics demanding testimony for “all communication.” See Karnsey [sic] v Nationwide Ins. Co., 2007 WL 436577 (D. Conn 2007)(refusing to require a deponent to testify concerning categories seeking “all communication,” on certain topics.). In this context, what COMMUNICATIONS BillFloat believes “lead” to the execution of the KEY AGREEMENT SUMMARY is unclear. “The reasonable particularity language in the statute implies a requirement such categories be reasonably particularized from the standpoint of the party who is subjected to the burden of producing the materials. Any other interpretation places too great a burden on the party on whom the demand is made.” Calcor Space Facility, Inc. v. Superior Court, 53 Cal.App.4th 216, 222 (1997). Here, noticed categories 4-5 in effect ask that a deponent to come prepared to testify as to “all COMMUNICATION” that lead to KEY AGREEMENTS SUMMARY. Such a designation is simply not feasible to prepare for. 5 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 Moreover, when Golden Pacific’s counsel tried to clarify the scope of the topic noticed through the meet-and-confer process, BillFloat refused to provide such clarity. Onstott Sup. Decl. { 9, Exh. E. Since the KEY AGREEMENTS summary was intended to be a summary of the key agreements concerning the SmartBiz program up to that point, a// communications concerning the program up to that time period would “lead” to the executed agreement. There are at approximately 4,336 written “communications” between the parties produced by BillFloat and 1,346 communications produced by Golden Pacific from January 2013, to July 25, 2013, when the KEY AGREEMENTS SUMMARY was executed alone. Bruce Decl. 4. Accordingly, the burden easily outweighs any relevance of the noticed topic. Moreover, the noticed category necessarily implicates communications between Golden Pacific and its counsel and thus seeks information protected by work-product and attorney-client privilege. The category should be disallowed. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: This area of inquiry is essentially the same as that above, with the only exception this deals with the executed agreement, and not the draft agreement. See the reasons set forth above with respect to Matter No. 1. MATTER NO. 5: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and BETTER FINANCE leading to the executed KEY AGREEMENTS, SUMMARY. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed topic seeks the same information as Matter No. 4, only as it respects COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be disallowed. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matter No. 1. MATTER NO. 6: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and any third party (including, without limitation, any regulator) leading to the executed KEY AGREEMENTS SUMMARY. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: 6 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = ae Re Bs Ee Eta gs 2g 3 This noticed topic seeks the same information as Matter No. 4, only as it respects COMMUNICATION between any Third Party and Golden Pacific. For the same reasons it should be disallowed. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matter No. 1. MATTER NO. 8: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between and/or among YOUR agents and/or employees pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY prior to its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: The noticed matter fails because it is not reasonably particularized and because of the burden it presents to a prospective deponent. “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” Code of Civ. Proc. 2017.020(a). Furthermore, the notice “shall describe with reasonable particularity the matters on which examination is requested.” Here, a request for testimony concerning “between and/or among YOUR agents and/or employees pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY prior to its execution on or about July 25, 2013” fails to have the requisite specificity. In particular, Golden Pacific’s counsel attempted to meet and confer with BillFloat concerning what was included within the scope of the term “pertaining” to the terms of the KEY AGREEMENTS SUMMARY. Onstott Supp. Decl. 7 9, Exh. E. BillFloat’s counsel rejected this effort. Taken literally, because the summary was intended to be a summary of the parties respective agreements and roles with respect to the SmartBiz Program up to that point, literally all COMMUNICATIONS regarding the SmartBiz program “pertained” to the terms of the KEY AGREEMENTS SUMMARY. Indeed, the summary itself specifies that “Lender, Holdco, and Technology Partner desire to memorialize their understandings with respect to the documentation of their agreements and roles in providing the SmartBiz 7(a) Service.” /d., Exh. E.at Attch. D, p. Lg. Moreover, “COMMUNICATION?” is defined broadly to reference “all discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations, letters, notes, telegrams, advertisements, or other form of information exchanged, whether oral, 7 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = ae Re Bs Ee Eta gs 2g 3 electronic or written.” Onstott Supp. Decl. { 9, Exh. E., p. 2. Other courts have rejected similar topics demanding testimony for “‘all communication.” See Karnsey [sic] v Nationwide Ins. Co., 2007 WL 436577 (D. Conn 2007)(refusing to require a deponent to testify concerning categories seeking “all communication,” on certain topics.). In this context, what COMMUNICATIONS BillFloat believes “pertain” to the terms of the KEY AGREEMENT SUMMARY is unclear. The summary itself is 5 pages in length and 13 sectioned paragraphs. BillFloat fails to identify what specific term or provision it needs information concerning. “The reasonable particularity language in the statute implies a requirement such categories be reasonably particularized from the standpoint of the party who is subjected to the burden of producing the materials. Any other interpretation places too great a burden on the party on whom the demand is made.” Calcor Space Facility, Ine. v. Superior Court, 53 Cal.App.4th 216, 222 (1997). Here, noticed categories 8-10 in effect ask that a deponent to come prepared to testify as to “all COMMUNICATION?” that pertain to an Agreement that was intended to be a summary of the parties respective roles and agreements up to that point. Such a designation is simply not feasible to prepare for. Moreover, when Golden Pacific’s counsel tried to clarify the scope of the topic noticed, BillFloat refused. Onstott Sup. Decl. { 6-7. Since the KEY AGREEMENTS summary was intended to be a summary of the key agreements concerning the SmartBiz program up to that point, a// communications concerning the program up to that time period would “lead” to the draft of the agreement. Before its implementation, there were more than 5,000 written documents produced by the parties showing communications from January 2013 to July 2013, when the summary was executed. Bruce Decl. 4|4. Accordingly, the burden easily outweighs any relevance of the noticed topic. Moreover, the noticed category necessarily implicates communications between Golden Pacific and its counsel and thus seeks information protected by work-product and attorney-client privilege. Moreover, there were several drafts of the Key Agreement Summary. BillFloat fails to even specify to which draft they are referencing. Indeed, the executed version of the Key Agreement Summary, attached as Attachment D to the PMQ Notice No. 1., states that it is the “Confidential draft of July 25, 2013.” Onstott Supp. Decl. § 9, Exh. E. at Attch. D. The category should be disallowed or limited to excise reference to all COMMUNICATIONS and just notice testimony for the person most qualified to testify concerning what specific term of the agreement it needs further information to understand. 8 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matter No. 1. Again, the area of inquiry is communications relating to a subject matter which is admittedly at issue in the litigation. Furthermore, these communications patently exist, as admitted by counsel for GPB. Therefore, this area of inquiry is set forth with particularity and a person with knowledge of this area of inquiry should be produced. MATTER NO. 9: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and BETTER FINANCE pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY prior to its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed topic seeks the same information as Matter No. 8, only as it respects COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be disallowed or limited as set forth with respect to Matter No. 8. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matter No. 1. MATTER NO. 10: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and any third party (including, without limitation, any regulator) pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY prior to its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed topic seeks the same information as Matter No. 8, only as it respects COMMUNICATION between Third Parties and Golden Pacific. For the same reasons it should be disallowed or limited as set forth with respect to Matter No. 8. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matter No. 1. MATTER NO. II: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between and/or among YOUR agents and/or employees pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: 9 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP 195 Montgomery Street. 2 & a The noticed matter fails because it is not reasonably particularized and because of the burden it presents to a prospective deponent. “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” Code of Civ. Proc. 2017.020(a). Furthermore, the notice “shall describe with reasonable particularity the matters on which examination is requested.” Here, a request for testimony concerning “between and/or among YOUR agents and/or employees pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013” fails to have the requisite specificity. In particular, Golden Pacific’s counsel attempted to meet and confer with BillFloat concerning what was included within the scope of the term “pertaining” to the terms of the KEY AGREEMENTS SUMMARY. Onstott Supp. Decl. {f 3-7, Exhs. B-D. BillFloat’s counsel rejected this effort. 7d. Here, literally all communications about the SmartBiz program after the summary’s execution on July 25, 2013 “pertain” to its terms. Indeed, the summary explicitly references the fact that the summary “sets forth the good faith understandings of Lender, Holdco and Technology Provider with respect to the objectives and roles described above, which they expect to implement by appropriate written agreements to be prepared following execution of this Summary.” Onstott Supp. Decl. §/ 9, Exh. E at Attch. D, p.1 (Key Agreements Summary at Paragraph G). Those agreements were eventually executed in the form of the licensing agreement, and the marketing and amended marketing agreements. Literally every action and communication concerning the SmartBiz Program taken after July 25, 2016 would in some manner pertain to the terms of the summary. This is why Golden Pacific tried to meet and confer on the scope of this matter. Accordingly, every loan application that was part of the SmartBiz Program, every communication between the parties, and every communication between Golden Pacific and third parties referencing the Smart Biz program are encompassed within noticed matters 11-13. Referencing the productions to date alone, there are approximately 9,000 documents comprising communications would be responsive to the noticed matters. See Bruce Decl. 4 (d). Moreover, “COMMUNICATION?” is defined broadly to reference “all discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations, letters, notes, telegrams, advertisements, or other form of information exchanged, whether oral, electronic or written.” Onstott Supp. Decl. § 9. Other courts have rejected similar topics 10 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = ae Re Bs Ee Eta gs 2g 3 demanding testimony for “all communication.” See Karnsey [sic] v Nationwide Ins. Co., 2007 WL 436577 (D. Conn 2007)(refusing to require a deponent to testify concerning categories seeking “all communication,” on certain topics.). Referencing the productions to date alone, more than 9,000 documents comprising communications would be responsive to the noticed matter when read literally. In this context, what COMMUNICATIONS BillFloat believes “pertain” to the terms of the KEY AGREEMENT SUMMARY is unclear. The summary itself is 5 pages in length and 13 sectioned paragraphs. BillFloat fails to identify what specific term or provision it needs information concerning. “The reasonable particularity language in the statute implies a requirement such categories be reasonably particularized from the standpoint of the party who is subjected to the burden of producing the materials. Any other interpretation places too great a burden on the party on whom the demand is made.” Calcor Space Facility, Inc. v. Superior Court, 53 Cal.App.4th 216, 222 (1997). Here, noticed categories 8-10 in effect ask that a deponent to come prepared to testify as to “all COMMUNICATION?” that pertain to an Agreement that was intended to be a summary of the parties respective roles and agreements up to that point. Such a designation is simply not feasible to prepare for. Moreover, when Golden Pacific’s counsel tried to clarify the scope of the topic noticed, BillFloat refused. Onstott Sup. Decl. §[ 3-7. Accordingly, the burden easily outweighs any relevance of the noticed topic. Moreover, the noticed category necessarily implicates communications between Golden Pacific and its counsel and thus seeks information protected by work-product and attorney-client privilege. The category should be disallowed or limited to excise reference to all COMMUNICATIONS and just notice testimony for the person most qualified to testify concerning what specific term of the Key Agreements Summary BillFloat needs further information to understand, REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matter No. 1. MATTER NO. 12: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between and/or among YOUR agents and/or employees pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: ul OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 This noticed topic seeks the same information as Matter No. 11, only as it respects COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be disallowed or limited as set forth with respect to Matter No. 11. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matter No. 1. MATTER NO. 13: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and BETTER FINANCE pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed topic seeks the same information as Matter No. 11, only as it respects COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be disallowed or limited as set forth with respect to Matter No. 11. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: Sce the reasons set forth above with respect to Matter No. 1. MATTER NO. 14: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and any third party (including, without limitation, any regulator) pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed topic secks the same information as Matter No. 11, only as it respects COMMUNICATION between third parties and Golden Pacific. For the same reasons it should be disallowed or limited as set forth with respect to Matter No. 11. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matter No. 1. MATTER NO. 15: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between and/or among YOUR agents and/or employees pertaining or referring to the term “SmartBiz™ 7(a) Program” used in the KEY AGREEMENTS SUMMARY. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This matter should be quashed because it imposes an unreasonable burden on the 12 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 deponent and because the noticed matter is not reasonably particularized. The term SmartBiz or SmartBiz 7(a) was used often as a shorthand for the entire SmartBiz program itself. SmartBiz is referenced in 7,609 documents in BillFloat’s production alone. Out of Golden Pacific’s production, the reference to SmartBiz is 7,554. Bruce Decl. § 2. Moreover, Golden Pacific tried to meet and confer with BillFloat concerning what the scope of the term “pertain” encompassed. Here, almost every communication between the parties “pertains” to the SmartBiz Program. There are literally tens of thousands of pages of documents and thousands of communications at issue in this case. Varela Decl. §{ 3-6. This would require an extensive and burdensome review of documents, emails, and gathering information from others to prepare to testify concerning this topic. Moreover, as set forth above, the reference to all COMMUNICATIONS in this noticed matter is overbroad, and unduly burdensome and fails to set forth the noticed matter with reasonable particularity. “COMMUNICATION?” is defined broadly to reference “all discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations, letters, notes, telegrams, advertisements, or other form of information exchanged, whether oral, electronic or written.” Onstott Supp. Decl. ¢ 9, Exh. E. Other courts have rejected similar topics demanding testimony for “all communication.” See Karnsey [sic] v Nationwide Ins. Co., 2007 WL 436577 (D. Conn 2007)(refusing to require a deponent to testify concerning categories seeking “all communication,” on certain topics.). There are thousands of communications at issue concerning the SmartBiz program and more than 15,000 documents have been produced that reference SmartBiz. Bruce Decl. § 2; Varela Decl. §] 3-6. See Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 150 (S.D.N.Y. 1997) (deposition of person most knowledgeable "is not designed to be a memory contest"); State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 207- 208 (E.D. Pa. 2008) ("in a case such as this, involving thousands of documents, particularly documents which are documents that reflect their business transactions, no witness or series of witnesses can know each one of the documents, but at least a business practice can be inquired into, and to what extent is the production consistent with that business practice."). BillFloat has failed to limit the scope of the term in any measurable way or provide guidance to Golden Pacific’s deponent concerning what, specifically, it is about the term that BillFloat wishes to inquire. The noticed matter should be disallowed. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: 13 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 See the reasons set forth above with respect to Matter No. 1. Counsel for GPB defines for the court the contractual term “SmartBiz™ 7(a) Program” and then proceeds to argue that this area of inquiry is too broad and somehow undefined because there are thousands of references to this program in the parties’ document production. That there are so many references to the program at the heart of this litigation merely reflects the importance of this area of inquiry. That the parties have produced so many documents relating to this area of inquiry ratifies that this is not just a relevant, but critical, area of inquiry. See, State Farm Mut. Auto. Ins. Co., supra, 250 F.R.D. at 208 (deposition was proper although case involved thousands of documents and “no witness or series of witnesses can know each one of the documents”). GPB may not seek to hide behind disingenuous arguments that the term “communications” is too broad, even when specifically defined for them, to try to avoid this admittedly relevant area of inquiry at deposition. MATTER NO. 16: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and BETTER FINANCE pertaining or referring to the term “SmartBiz™ 7(a) Program” used in the KEY AGREEMENTS SUMMARY. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed topic seeks the same information as Matter No. 15, only as it respects COMMUNICATION between BillFloat and Golden Pacific. For the same reasons it should be disallowed or limited as set forth with respect to Matter No. 15. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matters No. 1 and 15. MATTER NO. 17: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and any third party (including, without limitation, any regulator) pertaining or referring to the term “SmartBiz™ 7(a) Program” used in the KEY AGREEMENTS SUMMARY. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed topic seeks the same information as Matter No. 15, only as it respects COMMUNICATION between third parties and Golden Pacific. For the same reasons it should be disallowed or limited as set forth with respect to Matter No. 15. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matters No. | and 15. MATTER NO. 18: 14 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between and/or among YOUR agents and/or employees pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed mater is effectively identical to matter no. 11 above. For the same reasons as set forth above, the matter should be disallowed or greatly limited. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matters No. | and 15. MATTER NO. 19: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and BETTER FINANCE pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed mater is effectively identical to matter no. 12 above. For the same reasons as set forth above, the matter should be disallowed or greatly limited. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matters No. 1 and 15. MATTER NO. 20: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and any third party (including, without limitation, any regulator) pertaining or referring to the terms of the KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: This noticed mater is effectively identical to matter no. 13 above. For the same reasons as set forth above, the matter should be disallowed or greatly limited. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matters No. | and 15. MATTER NO. 21: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between and/or among YOUR agents and/or employees pertaining or referring to the term “* favored nation’ status” used in paragraph (9) of the KEY AGREEMENTS SUMMARY prior to its execution on or about July 25, 2013. ‘most 15 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: The noticed matter fails because it’s [sic] use of the terms “pertaining” and COMMUNICATION causes the request to be unduly burdensome and to lack reasonable particularity. While the scope of the noticed matter is not as large as some of those set forth above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to all communications currently in its possession referencing the term Most Favored Nation.” However, as part of 456 separately noticed matters, the burden becomes too great on the deponent. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matters No. 1 and 15. As to this area of inquiry, GPB claims that because the terms “pertaining to” and its synonym “referring to” was used, again to describe the matter of inquiry with as much particularity as possible, it should not be inquired about because it is too burdensome and, apparently, described with too much particularity. GPB’s assertions lack any merit. Cardenas v. Dorel Juvenile Group, Inc. (D. Kan. 2005) 230 F.R.D. 611, 624 (“the Court does not find this request to be facially overbroad merely because it uses the terms ‘discuss, refer, relate or pertain to’”). MATTER NO. 22: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and BETTER FINANCE pertaining or referring to the term “‘most favored nation’ status” used in paragraph (9) of the KEY AGREEMENTS SUMMARY prior to its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: The noticed matter fails because it’s [sic] use of the terms “pertaining” and COMMUNICATION causes the request to be unduly burdensome and to lack reasonable particularity. While the scope of the noticed matter is not as large as some of those set forth above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to all communications currently in its possession referencing the term Most Favored Nation” prior to the summary’s execution. However, as part of 456 separately noticed matters, the burden becomes too great on the deponent. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matters No. 1 and 22. MATTER NO. 23: 16 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and any third party (including, without limitation, any regulator) pertaining or referring to the term “‘most favored nation’ status” used in paragraph (9) of the KEY AGREEMENTS SUMMARY prior to its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: The noticed matter fails because it’s [sic] use of the terms “pertaining” and COMMUNICATION causes the request to be unduly burdensome and to lack reasonable particularity. While the scope of the noticed matter is not as large as some of those set forth above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to all communications currently in its possession referencing the term Most Favored Nation” prior to the summary’s execution. However, as part of 456 separately noticed matters, the burden becomes too great on the deponent. REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matters No. | and 22. MATTER NO. 24: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between and/or among YOUR agents and/or employees pertaining or referring to the term “‘most favored nation’ status” used in paragraph (9) of the KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: The noticed matter fails because it’s [sic] use of the terms “pertaining” and COMMUNICATION causes the request to be unduly burdensome and to lack reasonable particularity. While the scope of the noticed matter is not as large as some of those set forth above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to all communications currently in its possession referencing the term Most Favored Nation” prior to the execution of the summary. The use of the term pertaining in this instance, however, is uncertain and BillFloat has failed to provide any explanation of what it views to be the parameters of this noticed matter. As part of 456 separately noticed matters, the burden becomes too great on the deponent. Golden Pacific suggests that the matter be limited to “Golden Pacific’s understanding of the meaning of the term most favored nation status at the time of the execution of the summary and the basis for that understanding.” REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: 17 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 See the reasons set forth above with respect to Matters No. | and 22. In addition, the Court should not re-write the category to suit GPB’s one-sided agenda. It wants to limit the questioning regarding the cited contractual language to GPB’s “understanding” of the provision. However, limiting the category this way is designed to prevent BillFloat from asking questions that would refute any basis for any such understanding. The Court should not prevent legitimate discovery in this manner. MATTER NO. 25: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION between YOU and BETTER FINANCE pertaining or referring to the term “‘most favored nation’ status” used in paragraph (9) of the KEY AGREEMENTS SUMMARY after its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: The noticed matter fails because it’s [sic] use of the terms “pertaining” and COMMUNICATION causes the request to be unduly burdensome and to lack reasonable particularity. While the scope of the noticed matter is not as large as some of those set forth above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to all communications currently in its possession referencing the term Most Favored Nation” prior to the execution of the summary. The use of the term pertaining in this instance, however, is uncertain and BillFloat has failed to provide any explanation of what it views to be the parameters of this noticed matter. As party [sic] of 456 separately noticed matters, the burden becomes too great on the deponent. Golden Pacific suggests that the matter be limited to “Golden Pacific’s understanding of the meaning of the term most favored nation status at the time of the execution of the summary and the basis for that understanding.” REASONS WHY THE SPECIFIED MATTER IS SUBJECT TO VALID INQUIRY: See the reasons set forth above with respect to Matters No. 1 and 22. In addition, the Court should not re-write the category to suit GPB’s one-sided agenda. It wants to limit the questioning regarding the cited contractual language to GPB’s “understanding” of the provision. However, limiting the category this way is designed to prevent BillFloat from asking questions that would refute any basis for any such understanding. The Court should not prevent legitimate discovery in this manner. MATTER NO. 26: The PERSON(s) most qualified to testify regarding any and all COMMUNICATION 18 OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP Ss = i a = a Re Bs Ee Eta 58 2g 3 between YOU and any third party (including, without limitation, any regulator) pertaining or referring to the term “‘ AGREEMENTS SUMMARY after its execution on or about July 25, 2013. GPB’S REASON WHY NOTICED MATTER SHOULD BE QUASHED OR LIMITED: most favored nation’ status” used in paragraph (9) of the KEY The noticed matter fails because it’s [sic] use of the terms “pertaining” and COMMUNICATION causes the request to be unduly burdensome and to lack reasonable particularity. While the scope of the noticed matter is not as large as some of those set forth above, it is still considerable. Taken by itself, Golden Pacific could likely provide a response to all