Preview
MARIO A. MOYA (State Bar No. 262059)
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REBECCA M. HOBERG (State Bar No. 224086)
2 MOYA LAW FIRM
1300 Clay Street, Suite 600
ELECTRONICALLY
3 Oakland, California 94612
Telephone: 510.926.6521 F I L E D
4 Superior Court of California,
Fax: 510.340.9055 County of San Francisco
5 Email: mmoya@moyalawfirm.com 07/31/2019
rhoberg@moyalawfirm.com Clerk of the Court
BY: EDNALEEN ALEGRE
6 Deputy Clerk
Attorneys for Defendant and Cross-Complainant
7 HOWARD WONG
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
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GRACE IMAGE PHOTOGRAPHY, a sole Case No. CGC-18-569386
12 proprietorship, and JUDY McKIE, an
individual, DECLARATION OF MARIO A.
13 MOYA IN OPPOSITION TO
14 Plaintiffs, PLAINTIFFS’ MOTION FOR
SINGLE ASSIGNMENT
15 vs. DESIGNATION
16 JENI FONG, an individual; HOWARD Date: August 13, 2019
WONG, an individual; MAY-LEE CHAI, an Time: 9:30 a.m.
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individual; and DOES 1-150, inclusive, Dept.: 206
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Defendants.
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20 Complaint Filed: August 31, 2018
AND RELATED CROSS-ACTION Trial Date: January 6, 2020
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DECL. OF M. MOYA IN OPP’N TO PLTFS’ MOTION TO COMPEL COMPLIANCE WITH DEPO. NOTICE
I, Mario A. Moya, hereby declare as follows:
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1. I am an attorney duly admitted to practice before the State of California and in all
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state and federal courts within the State of California. I am the owner of the Moya Law Firm in
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Oakland, which is located at 1300 Clay Street, Suite 600, in Oakland, California 94612. I have
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personal knowledge of the facts set forth herein, except as to those stated on information and
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belief and, as to those, I am informed and believe them to be true. If called as a witness, I could
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and would competently testify to the matters stated herein.
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2. I submit this declaration in opposition to Plaintiffs’ motion for single assignment
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designation.
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3. Attached hereto as Exhibit A is a true and correct copy of Plaintiff and
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Cross-Defendant Grace Image Photography’s Responses to Defendants and Cross-Complainants
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Jeni Fong and Howard Wong’s Form Interrogatories, Set One.
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4. Attached hereto as Exhibit B is a true and correct copy of Plaintiff and
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Cross-Defendant Judy McKie’s Responses to Defendants and Cross-Complainants Jeni Fong and
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Howard Wong’s Form Interrogatories, Set One, dated February 20, 2019.
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5. Attached hereto as Exhibit C is a true and correct copy of Plaintiff and
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Cross-Defendant Judy McKie’s Responses to Defendants and Cross-Complainants Jeni Fong and
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Howard Wong’s Special Interrogatories, Set One, dated February 20, 2019.
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6. Attached hereto as Exhibit D is a true and correct copy of Plaintiff and
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Cross-Defendant Judy McKie’s Responses to Defendants and Cross-Complainants Jeni Fong and
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Howard Wong’s Requests for Admissions, Set One, dated February 20, 2019.
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7. Attached hereto as Exhibit E is a true and correct copy of the letter I sent to Peter
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Bales on March 23, 2019, meeting and conferring about Plaintiffs’ responses to Defendants’
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requests for production of documents, sets one and two.
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8. Attached hereto as Exhibit F is a true and correct copy of the letter I sent to Peter
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Bales on April 2, 2019, meeting and conferring about Plaintiff Judy McKie’s insufficient
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discovery responses and incomplete, deficient production of documents and communications,
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and concerns regarding spoliation.
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DECL. OF M. MOYA IN OPP’N TO PLTFS’ MOTION TO COMPEL COMPLIANCE WITH DEPO. NOTICE
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9. Attached hereto as Exhibit G is a true and correct copy of the email I sent to
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Peter Bales on May 7, 2019 at 8:50 p.m., meeting and conferring about Plaintiffs’ amended
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responses to discovery and the previous correspondence concerning the issue.
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10. Attached hereto as Exhibit H is a true and correct copy of the email I sent to
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Peter Bales on March 10, 2019 at 5:01 p.m., meeting and conferring about scheduling of
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motions, discovery delays, and third party subpoenas.
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11. Attached hereto as Exhibit I is a true and correct copy of an email I sent to Peter
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Bales on May 16, 2019 at 4:24 p.m. concerning Plaintiff’s admission that she had unilaterally
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limited the scope of potentially responsive materials in her document production.
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12. Attached hereto as Exhibit J is a true and correct copy of Judge Pro Tem Douglas
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Robbins’ June 8, 2019 Report and Recommendation regarding Plaintiff’s Motion for Protective
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Order.
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13. Attached hereto as Exhibit K is a true and correct copy of the email I sent to
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Peter Bales, as well as other counsel in this case, on July 2, 2019 at 11:32 p.m., meeting and
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conferring about several matters including: Stipulation to correct invalid order taking
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Defendants’ motions to compel off-calendar, sequence and timing of discovery, Plaintiff’s
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privilege logs, Plaintiffs’ second production of documents, and Plaintiffs’ objection only or
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deficient responses to Defendants’ second wave of discovery (RPDs Set Three, SROGs Set Two,
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FROGs Set Two).
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14. Attached hereto as Exhibit L is a true and correct copy of Judge Pro Tem Scott J.
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Borrowman’s July 8, 2019 Report and Recommendation regarding Plaintiff’s Motion for
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Protective Order.
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15. Attached hereto as Exhibit M is a true and correct copy of Judge Pro Tem
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Borrowman’s July 8, 2019 Report and Recommendation regarding Plaintiffs’ Motion to Quash
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Defendant’s Third Party Subpoenas.
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16. Attached hereto as Exhibit N is a true and correct copy of Judge Pro Tem
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Adrienne Rogers’s July 16, 2019 Report and Recommendation regarding the appointment of a
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discovery referee and Defendants’ motion for the timing and sequencing of discovery.
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DECL. OF M. MOYA IN OPP’N TO PLTFS’ MOTION TO COMPEL COMPLIANCE WITH DEPO. NOTICE
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17. Attached hereto as Exhibit O is a true and correct copy of the letter I sent to Peter
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Bales on July 17, 2019, meeting and conferring about Plaintiffs’ verified responses to
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Defendants’ RPDs (Set Three), SROGs (Set Two), and FROGs (Set Two).
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18. This opposition is filed in good faith and not for any improper purpose.
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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct.
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Executed on July 31, 2019, at Oakland, California.
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10 ________________________________
Mario A. Moya
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DECL. OF M. MOYA IN OPP’N TO PLTFS’ MOTION TO COMPEL COMPLIANCE WITH DEPO. NOTICE
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EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
1300 Clay St., Suite 600
Oakland, California 94612
Tel: 510.926.6521 | Fax: 510.340.9055
Email: mmoya@moyalawfirm.com
Sent Via Email
March 23, 2019
Peter Bales, Esq.
Buchalter, P.C.
55 Second Street, Suite 1700
San Francisco, CA 94105
pbales@buchalter.com
Re: Meet-and-Confer re: Plaintiffs’ Responses to Def’s RFPDs (Sets One & Two)
Grace Image Photography v. Fong, et al., No. CGC18569386 (San Francisco Co.)
Dear Peter:
As we discussed during our in-person meet and confer conference this past week, I write in
reference to your clients Judy McKie and GIP’s responses to Defendant Fong and Wong’s First and
Second Sets of Requests for Production of Documents, which were both served on Feb. 15, 2019
and Feb. 22, 2019, respectively. This letter is also intended to meet-and-confer concerning several
deficiencies in the document production that you delivered via fileshare in response to Defendant
Chai’s requests for production of documents.
A. The Timing of Plaintiff’s Production Is Ambiguous; It Was Only Intended to
Produce Documents Requested by Chai.
On Feb. 1, 2019, your client, plaintiff Judy McKie, produced documents in response to
Defendant Chai’s prior requests for production of documents. At the time of this production,
neither plaintiff McKie nor plaintiff GIP had responded to Defendants Fong and Wong’s pending
requests for production of documents. While those requests for production had been sent in
December, we kindly accommodated your request for an extension of time to respond. We received
responses to our clients’ First Sets of RFPDs two weeks later, when your client served her responses
on Feb. 15, 2019 via USPS.
With this in mind, it is unclear why your client has not yet produced any additional materials
in response to Defendants Fong and Wong’s First and Second Sets of Requests for Production,
which requested documents from a broader universe than those that were requested by Defendant
Chai. Compare Chai RFPDs to McKie (Set One) (29 requests, served Nov. 29, 2018) with Fong &
Wong RFPDs to McKie (Set One) (50 requests, served Dec. 14, 2018) & (Set Two) (two requests,
served Jan. 18, 2019). Your client McKie’s responses to Chai’s RFPDs were served on January 10,
2019, while you served your clients’ responses to Defendants Fong and Wong’s First and Second
Sets of RFPDs on Feb. 15, 2019 and Feb. 22, 2019, respectively. These response dates occurred
after your production to Chai on Feb. 1, 2019.
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March 23, 2019
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Documents Exclusively Requested by Fong & Wong
From what we can tell, the following categories documents were requested from Ms. McKie
by Defendants Fong and Wong in their First and Second Sets of RFPDs but were not previously
requested by defendant Chai:
● All documents identified in the Complaint but not identified by the Chai RFPDs to
McKie (Set One) (see Fong & Wong RFPD No. 1, requesting all documents
identified in the complaint);
● All documents that refer to, related to, or evidence documents identified in the
Complaint but that are not requested by the Chai RFPDs (see Fong & Wong RFPD
No. 2, requesting all documents that refer to or relate to documents identified in the
complaint);
● All communications identified in the complaint that were not requested by Chai’s
RFPDs (see Fong & Wong RFPD No. 3, requesting all communications identified in
the complaint);
● All documents that refer to, relate to, or evidence communications identified in the
complaint not covered by Chai Requests No. 6-19 (see Fong & Wong RFPD No. 4,
requesting all documents that refer to or relate to communications identified in the
complaint);
● All communications in McKie’s possession, custody, or control between Fong or
Wong, on the one hand, and McKie, GIP, or any other person, on the other (see
Fong & Wong RFPD Nos. 5-7, 9-11)
● All communications in McKie’s possession, custody, or control between McKie and
any other person relating to or regarding Fong or Wong (Fong & Wong RFPD No.
8, 12)
● All communications in McKie’s possession, custody, or control between McKie and
Mark Cohen or anyone else at Synesis Advisors (Fong & Wong RFPD No. 13, 14);
● All Communications in McKie’s possession, custody, or control between McKie and
any other person regarding her purchase of GIP (Fong & Wong RFPD No. 15);
● All documents that McKie contends refer to, relate to, or evidence any improper
communications between Fong or Wong and any current or former client of GIP
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March 23, 2019
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(Fong & Wong RFPD No. 16-19);
● All documents that McKie contends refer to, relate to, or evidence any improper
solicitation or any current or former client of GIP by Fong or Wong (Fong & Wong
RFPD No. 20-23);
● All documents which identify trade secret information or GIP customer identities
allegedly misappropriated by Fong or Wong (Fong & Wong RFPD No. 24-27);
● All documents which describe, depict, or relate to GIP business losses McKie
attributes to Fong or Wong’s alleged misappropriation of any GIP trade secrets
(Fong & Wong RFPD No. 28-29);
● All documents that McKie contends supports her 15 causes of action alleged in the
Complaint (Fong & Wong RFPD No. 30-44); and
● All documents that McKie identified in response her responses to defendants Fong
and Wong’s Form Interrogatories (Set One) and Special Interrogatories (Set Two).
Ms. McKie’s failure to produce any additional documents beyond what she already produced
to defendant Chai in response to these various requests is rather peculiar and suggests that no such
documents have been located or produced. Please advise whether Ms. McKie will be producing any
additional information in response to the foregoing categories of information requested.
In addition to the foregoing defendants Fong and Wong also requested documents of GIP,
the entity. In particular, defendants Fong and Wong requested all responsive documents in the
possession, custody, or control of GIP via a separate discovery demand. We note that the current
form of GIP has not been disclosed in response to other Form Interrogatories that are the subject
of forthcoming meet-and-confer correspondence). See generally RFPDs to GIP (Sets One & Two);
see also infra.
Documents Requested by Both Chai and Defendants Fong & Wong
In addition, there are some areas of overlap that were requested by both defendant Chai and
defendants Fong & Wong, but your responses indicate that you have not yet discovered any
additional documents at issue between the time of your initial document production on Jan. 10 and
your written responses to Fong and Wong on Feb. 15 and Feb. 22. These categories include (i) all
documents identified in the complaint (like, for instance, the blind profile for GIP, the Buyer’s
Acknowledgment of Introduction and Confidentiality Agreement, the confidential offering
memorandum received by McKie, and any alleged written promises made to McKie about
defendants Fong & Wong’s retirement (see compl. ¶¶ 11-13, 28); (ii) documents regarding payments
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March 23, 2019
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made by McKie to Defendants for purchase of GIP; and (iii) all documents regarding Ms. McKie’s
mental anguish, emotional distress, medical treatment, and mental health treatment. See Fong &
Wong RFPD Nos. 45-50.
B. McKie’s Responses to Defendants’ RFPDs Nos. 1-50 & 51-52 Are Deficient
Your responses to Defendants’ RFPDs contain the same, boilerplate response to each and
every category of information requested:
Following a diligent search and reasonable inquiry, Plaintiff produced the
responsive non-privileged documents in her possession, custody or control
found to date.
Plaintiffs McKie and GIP’s Responses to RFPD Nos. 1-50 (Set One) & 51-52 (Set Two) (all
identical responses, 104 responses in total). This response is deficient in two important respects.
First, your clients’ statements that they “produced” documents “[f]ound to date” is deficient
under the Discovery Act because we cannot tell which date they are referring to -- are they referring
to the time when your documents were produced to Defendant Chai, or are they referring to the
time when they responded to Defendants Fong and Wong? It should be the latter, but we have not
received any additional responsive information from your clients. Put differently, your use of the
past tense “produced” in your answer is inconsistent with your claim to have produced all
documents “found to date” as to each response (especially because your clients have made only one
production, which was in response to defendant Chai, who requested a much smaller universe of
materials than defendants Fong and Wong). Please confirm that, as to the responses at issue, all
responsive documents in Plaintiffs’ possession, custody, or control — at the time of the response
— have been produced.
Second, we note that your response deliberately misstates the scope of the request by
agreeing to provide “responsive non-privileged documents” when the requests were not limited in
that manner. You cannot unilaterally narrow the scope of documents requested by Plaintiff
responding that you intend to produce only “non-privileged” documents in order to minimize your
burden of establishing what materials were withheld by a claim of privilege.
It should be emphasized that your clients have not asserted any objections in response on
grounds of the attorney client privilege or the attorney work product doctrine, and they have not
produced a privilege log required by C.C.P. § 2031.240(c)(1). It is well established under California
law that if a party responding to discovery requests objects to any or all of the demands for
production, the objections must be stated in the response, along with the ground for each objection.
C.C.P. §2031.240(b). Unless respondent timely raises its privilege-related objections to the
document requests and the precise grounds on which they are based, then those objections are
Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production
March 23, 2019
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waived. See C.C.P. §2031.300; Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal. App. 4th 263, 274
(failure to include an objection expressly based upon attorney-client privilege in the initial response
results in waiver of the attorney-client privilege); Stadish v. Superior Court (1999) 71 Cal. App. 4th 1130
(trade secret privilege waived as to first demand since that objection not asserted).
C. The Document Production Received Feb. 15, 2019 Has Numerous
Deficiencies.
The materials that you produced on Feb. 15, 2019 contain several apparent deficiencies that
need to be corrected. It is unclear whether these deficiencies were the result of human error or if
these omissions were intentional, but we will presume the best and ask that you please correct the
following deficiencies.
1. Earlier Email Chains & Missing Attachments
There are several email threads that have been produced without earlier emails and their
attachments. As you know, our requests for production demanded that all emails be produced along
with their attachments, to establish the linkages between the documents. And instead of receiving
every email exchanged between relevant parties to capture all communications and attachments,
there are several emails in which only the latest email in an exchange is produced.
The following are just a few examples of these emails. These documents conspicuously
disclose that there are emails received by Ms. McKie that have not been produced. This is
significant because those earlier emails contain attachments that were not produced.
● Bates No. GIP-McKie_00000045:
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● Bates No.: GIP-McKie_00000059:
Again, these are just a few examples. It would be inefficient — if not patently unfair — for
Defendants to shoulder the burden of identifying all of the e-mails and text messages in your
production that are missing attachments and to identify them for you. In any event, it is beyond
dispute that email attachments must be produced along with their parent emails. See Miller v. IBM,
2006 U.S. Dist. LEXIS 22506, at *18-19 (N.D.Cal. Apr. 14, 2006) (ordering the production of
“relevant emails with the attachments . . . or . . . specific references (i.e., date of production, Bates
and/or page numbers, and labels) which enable IBM to identify which attachments belong to which
emails”); PSEG Power N.Y., Inc. v. Alberici Constructors, Inc., 2007 U.S. Dist. LEXIS 66767, at *36
(N.D.N.Y. Sept. 7, 2007) (“Without question, attachments should have been produced with their
corresponding emails as such are kept in the usual course of business.”); CP Solutions PTE, Ltd. v.
General Electric Co., 2006 U.S. Dist. LEXIS 27053, at *4 (D. Conn., Feb. 6, 2006) (“Defendants chose
to provide the documents in the manner in which they were kept in the ordinary course of business.
Attachments should have been produced with their corresponding e-mails.”).
Accordingly, please produce these documents within seven (7) days of this letter, or we will
have no choice but to move to compel. If you intend to meet-and-confer about these issues, then
we request a 30-day extension of time on our motion to compel deadline to allow us the chance to
do so.
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March 23, 2019
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2. Missing Files From Text Messages
We have also encountered a similar problem with respect to your clients’ text messages. The
pdf of text messages you produced (starting at Bates No. GIP-McKie_00004932) is a pdf report
generated from Ms. McKie’s mobile device. That is the type of report displayed on the face of the
document, but it fails to collect the underlying files on the mobile device.
The text messages you produced are insufficient because the PDF report of text messages
does not include the embedded files that are saved elsewhere on the phone. Because of this
limitation, there are there are several image files that were displayed in the PDF export of text
messages extracted from Ms. McKie’s cellular telephone, but the underlying image files were not
produced as part of the production.
We do not believe that Ms. McKie has complied with our requests for her mobile device
data. For example, several text messages exchanged between Ms. McKie and Matt Cohen appear to
contain .jpg files as attachments, however, these attachments are missing from the production. See
GIP-McKie_00004985. These files are nowhere to be found in the universe of materials produced,
and they have not been produced as attachments to the text messaging report that you have
produced. To illustrate, the following messages were exchanged between Ms. McKie and Mr.
Cohen on March 27, 2018 and illustrate how Ms. McKie invaded the defendant(s)’ privacy in their
private messages. The following documents are highly relevant, and the underlying files should have
been produced:
● Missing Attachments to Bates No. GIP-McKie_00004985 (sent March 27, 2018):
○ IMG_3715.JPG
○ IMG_3716.JPG
○ IMG_3720.JPG
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Other messages exchanged between Ms. McKie and the defendants contain thumbnailed
.jpg and .mov files, but no such files were produced as part of Ms. McKie’s production. See, e.g.,
Bates No.: GIP-McKie_00004937, GIP-McKie_00004946, GIP-McKie_00004946,
IP-McKie_00004964, GIP-McKie_00004965, GIP-McKie_00004974, and GIP-McKie_00004977.
For example, the following file attachments appear to have been sent between Ms. McKie
and defendant Wong between December 21, 2016 to March 13, 2017, but have not been produced:
● Missing Attachments to Bates No. GIP-McKie_00004937 (sent Dec. 6, 2017):
○ FullSizeRender.jpg
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● Missing Attachment to Bates No. GIP-McKie_00004941 (sent Dec. 21, 2017):
○ 53559533452_2837F72E-463E-4407-A31F-D2C12F17D967.JPG
● Missing Attachment to Bates No. GIP-McKie_00004946 (sent Dec. 29, 2017):
○ IMG_3154.MOV
● Missing Attachment to Bates No. GIP-McKie_00004950 (sent Jan. 6, 2018):
○ IMG_3415.JPG
○ IMG_3416.JPG
○ IMG_3419.JPG
● Missing Attachment to Bates No. GIP-McKie_00004964 (sent Feb. 9, 2018):
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○ 53990162486_7A3E8BBE-789A-4A85-A817-517EA4843512.JPG
● Missing Attachment to Bates No. GIP-McKie_00004965 (sent Feb. 12, 2018):
○ 54015380015_7CB48985-1D44-456E-A10D-F213153D2A2E.JPG
● Missing Attachment to Bates No. GIP-McKie_00004974 (sent Feb. 28, 2018):
○ 54154621389_EB88FDAC-E1E0-40AF-9F8B-E2BD986CA862.JPG
● Missing Attachment to Bates No. GIP-McKie_00004977 (sent March 13, 2018):
○ IMG_5045.JPG
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The attachments embedded within these text messages should be produced along with their
accompanying messages because that is how they are kept in the ordinary course. See, e.g., Miller v.
IBM, 2006 U.S. Dist. LEXIS 22506, at *18-19 (N.D.Cal. Apr. 14, 2006) (ordering the production of
“relevant emails with the attachments . . . or . . . specific references (i.e., date of production, Bates
and/or page numbers, and labels) which enable IBM to identify which attachments belong to which
emails”); PSEG Power N.Y., Inc. v. Alberici Constructors, Inc. , 2007 U.S. Dist. LEXIS 66767, at *36
(N.D.N.Y. Sept. 7, 2007) (“Without question, attachments should have been produced with their
corresponding emails as such are kept in the usual course of business.”). Please confirm you will
produce these documents to us within of this letter, or we will have no choice but to move to
compel. If you intend to meet-and-confer about these issues, then we request a 30-day extension of
time on our motion to compel deadline to allow us the chance to do so.
3. Missing Text Messages
It appears that you or your forensic vendor collected text messages exchanged with two
other phone numbers, but those text messages were not produced. For example, there appear to be
text messages between Ms. McKie, on the one hand, and Nick Ondrejka and/or another account
kept by Ms. McKie, on the other, that were collected by your forensic vendor but not produced. See
Bates No.: GIP-McKie_00004987 (see screenshot below):
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Responsive materials from these collections (i.e., apparently saved as “chat-3.txt” and
“chat-4.txt”) have not been produced and must be produced to the extent they contain responsive
materials in response to these document requests and any further document requests that are
forthcoming.
4. Unreadable Documents
There are a few unreadable files that were produced in your production, but no
accompanying clarification as to what the purpose or the responsiveness of the document. See, e.g.,
the following document, Bates No. GIP-McKie_00004830, which is impossible to read because it is
so miniscule:
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This image is so small — and barely legible — that the core part of the document seems to
be a thumbnail within a thumbnail and unreadable. We have no ability to determine the significance
of this document.
5. “456grace” Emails
In recent motion practice, your client signed a declaration representing to the Court that she
had no ability to access Ms. Fong’s personal email account at 456grace@gmail.com, which email
address, Ms. McKie claims, was a company asset that should have been transferred to her at closing.
You reiterated this representation in correspondence we received on March 8, 2019, and we have
previously briefed and argued this issue to the Court in connection with our recent discovery
dispute. However, several emails show that Ms. McKie did, in fact, have access to this email
account because she forwarded copies of the documents to herself. Please clarify how this could be.
Also, can you please confirm that neither you, your client, nor her prior counsel collected emails
from this account via download or a remote collection?
I expect that if you or your client have made any misstatements to the Court, then you will
take immediate steps to cure any misimpressions. Please let me know if that is not the case.
D. Plaintiff GIP’s Documents
Early in this case, we alerted you to the peculiar problem posed by GIP also being named as
a plaintiff in this case. Our understanding to date is that GIP is a sole proprietorship that is
indivisible from Ms. McKie herself. GIP’s recent responses to the Form Interrogatories
propounded by Defendants did little to clarify that concern, and we intend to meet-and-confer
about the defendants’ responses to those interrogatories in the next week. In any event, please
clarify as to whether GIP has possession, custody or control of a larger universe of documents than
Ms. McKie herself. Under California law, a fictitious business name for a sole proprietorship has no
existence apart from the party using the name. Accordingly, an action against a fictitious business
name only is subject to dismissal. See Pinkerton's, Inc. v Superior Court (1996) 49 Cal. App. 4th 1342.
* * *
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We welcome the opportunity to meet-and-confer with you in good faith concerning these
various matters. Please let us know your availability for a telephone conference next week
concerning these issues.
If you will be unable to produce the materials requested within seven (7) days but intend to
meet-and-confer in good faith about these various issues and a production of these missing
materials, then we request a 21-day extension of time on our motion to compel deadline on my
clients’ First and Second Sets of Requests for Production of Documents.
Kind regards,
/s/ Mario A. Moya
Mario A. Moya
MOYA LAW FIRM
EXHIBIT F
1300 Clay St., Suite 600
Oakland, California 94612
Tel: 510.926.6521 | Fax: 510.340.9055
Email: mmoya@moyalawfirm.com
Sent Via Email
April 2, 2019
Peter Bales, Esq.
Buchalter, P.C.
55 Second Street, Suite 1700
San Francisco, CA 94105
pbales@buchalter.com
Re: I
nsufficient Forensic Collection from Mobile Device; Spoliation Concerns;
Need for Further Responses & Compliance
Grace Image Photography v. Fong, et al., No. CGC-18-569386 (San Francisco Co.)
Dear Peter:
We write to further meet and confer about Plaintiff Judy McKie’s responses and production
to Defendants Fong and Wong’s Requests for Production (Set One), Ms. McKie’s responses to
Defendants’ Requests for Production (Set Two), and the electronic materials she has produced in
response. Your client’s production of documents and communications from her mobile device is
incomplete, deficient, and most worryingly displays signs of spoliation. We demand that you take
corrective measures and immediately produce responsive materials.
For the reasons explained below in Part B of this letter, we also have strong reason to
believe that your prior discovery responses to Defendants Fong and Wong’s Requests for Production
(Set One) are woefully insufficient, and you need to take immediate action to cure these defects by
Friday April 5, 2019 or else we will have no choice but to file a motion to compel further responses
the following Monday (unless you agree to a reasonable extension of time).
A. Evidence of Evidence Suppression and/or Deletion in Your Client’s
Production
A party, or anyone who anticipates being a party, to a lawsuit has a duty to not destroy
evidence. See Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1.
Both a party and the party’s
counsel may be sanctioned for spoliation of evidence, that is, the destruction or suppression of
evidence. See Cedars-Sinai; Williams v. Russ (2008) 167 Cal. App. 4th 1215, 1223 (upholding sanctions
for allowing files to be destroyed during litigation); R.S. Creative v. Creative Cotton (1999) 75 Cal. App.
4th 486 (holding terminating sanctions appropriate for deleting computer files). You and your client
Judy McKie are surely well aware of the duty to preserve evidence, having erroneously accused our
firm and our clients of spoliation (accusations which you later retracted and claim never to have
made) in prior meet and confer correspondence dated November 14, 2018 and November 16, 2018.
You even went so far as to seek a preliminary injunction to prevent the destruction of evidence
without any actual evidence of a threat, which the court sensibly struck down.
Further Letter to P. Bales re: Plaintiff McKie’s Text Messages
April 9, 2019
Page 2 of 9
Now, after review of your client’s production, it appears your client has done the very
actions she accused Defendants of doing. Files from the production for your client’s mobile phone
indicate 588 missing text messages between Ms. McKie and “Nick Ondrejka” (phone number (415)
360-4417) and 1869 missing text messages between Ms. McKie and “JM” (phone number (917)
582-7672), who we believe to be John Martinell (neither of whom are disclosed in your written
discovery responses, even though you went so far as to collect those messages from Ms. McKie’s
device).
We now discuss them in order:
1. Nick Ondrejka: (415) 360-4417
It is our understanding that Nick Ondrejka was heavily involved in Plaintiff’s purchase of
GIP, and thus that communications with Nick Ondrejka are unquestionably relevant to this case. We
have reason to believe that Ms. McKie and Mr. Ondrejka were formerly partners, and documents
received from Synesis Advisors show that Mr. Ondrejka’s name is on a $5,000 check that was the
first payment Judy McKie provided for GIP.
A search of public records reveal that Mr. Ondrejka and Ms. McKie were business partners
of Severs Block Holding Company, LLC, which took out a large amount of business loans for a
redevelopment project in Ms. McKie’s hometown. Together, Ms. McKie and Mr. Ondrejka
defaulted on over $750,000 in loans and had multiple judgments against them in multiple states.
Your production indicates that there were 588 text messages between Ms. McKie and Mr. Ondrejka
from September 7, 2016 to January 13, 2019. The majority of this timeframe includes negotiations
for the purchase of GIP, the signing of the Asset Purchase Agreement, preparation and signature of
the Buyer’s Disclosure Statement, payments made for the purchase of GIP, and the filing of this
litigation.
We find it hard to believe that none of the 588 text messages (if not more) between Ms.
McKie and Mr. Ondrejka were responsive to our document requests, including but not limited to
Defendants’ Request for Production Nos. 8, 12, and No. 15, which read as follows:
Preview
MARIO A. MOYA (State Bar No. 262059) 1 REBECCA M. HOBERG (State Bar No. 224086) 2 MOYA LAW FIRM 1300 Clay Street, Suite 600 ELECTRONICALLY 3 Oakland, California 94612 Telephone: 510.926.6521 F I L E D 4 Superior Court of California, Fax: 510.340.9055 County of San Francisco 5 Email: mmoya@moyalawfirm.com 07/31/2019 rhoberg@moyalawfirm.com Clerk of the Court BY: EDNALEEN ALEGRE 6 Deputy Clerk Attorneys for Defendant and Cross-Complainant 7 HOWARD WONG 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 GRACE IMAGE PHOTOGRAPHY, a sole Case No. CGC-18-569386 12 proprietorship, and JUDY McKIE, an individual, DECLARATION OF MARIO A. 13 MOYA IN OPPOSITION TO 14 Plaintiffs, PLAINTIFFS’ MOTION FOR SINGLE ASSIGNMENT 15 vs. DESIGNATION 16 JENI FONG, an individual; HOWARD Date: August 13, 2019 WONG, an individual; MAY-LEE CHAI, an Time: 9:30 a.m. 17 individual; and DOES 1-150, inclusive, Dept.: 206 18 Defendants. 19 20 Complaint Filed: August 31, 2018 AND RELATED CROSS-ACTION Trial Date: January 6, 2020 21 22 23 24 25 26 27 28 DECL. OF M. MOYA IN OPP’N TO PLTFS’ MOTION TO COMPEL COMPLIANCE WITH DEPO. NOTICE I, Mario A. Moya, hereby declare as follows: 1 1. I am an attorney duly admitted to practice before the State of California and in all 2 state and federal courts within the State of California. I am the owner of the Moya Law Firm in 3 Oakland, which is located at 1300 Clay Street, Suite 600, in Oakland, California 94612. I have 4 personal knowledge of the facts set forth herein, except as to those stated on information and 5 belief and, as to those, I am informed and believe them to be true. If called as a witness, I could 6 and would competently testify to the matters stated herein. 7 2. I submit this declaration in opposition to Plaintiffs’ motion for single assignment 8 designation. 9 3. Attached hereto as Exhibit A is a true and correct copy of Plaintiff and 10 Cross-Defendant Grace Image Photography’s Responses to Defendants and Cross-Complainants 11 Jeni Fong and Howard Wong’s Form Interrogatories, Set One. 12 4. Attached hereto as Exhibit B is a true and correct copy of Plaintiff and 13 Cross-Defendant Judy McKie’s Responses to Defendants and Cross-Complainants Jeni Fong and 14 Howard Wong’s Form Interrogatories, Set One, dated February 20, 2019. 15 5. Attached hereto as Exhibit C is a true and correct copy of Plaintiff and 16 Cross-Defendant Judy McKie’s Responses to Defendants and Cross-Complainants Jeni Fong and 17 Howard Wong’s Special Interrogatories, Set One, dated February 20, 2019. 18 6. Attached hereto as Exhibit D is a true and correct copy of Plaintiff and 19 Cross-Defendant Judy McKie’s Responses to Defendants and Cross-Complainants Jeni Fong and 20 Howard Wong’s Requests for Admissions, Set One, dated February 20, 2019. 21 7. Attached hereto as Exhibit E is a true and correct copy of the letter I sent to Peter 22 Bales on March 23, 2019, meeting and conferring about Plaintiffs’ responses to Defendants’ 23 requests for production of documents, sets one and two. 24 8. Attached hereto as Exhibit F is a true and correct copy of the letter I sent to Peter 25 Bales on April 2, 2019, meeting and conferring about Plaintiff Judy McKie’s insufficient 26 discovery responses and incomplete, deficient production of documents and communications, 27 and concerns regarding spoliation. 28 DECL. OF M. MOYA IN OPP’N TO PLTFS’ MOTION TO COMPEL COMPLIANCE WITH DEPO. NOTICE 1 9. Attached hereto as Exhibit G is a true and correct copy of the email I sent to 1 Peter Bales on May 7, 2019 at 8:50 p.m., meeting and conferring about Plaintiffs’ amended 2 responses to discovery and the previous correspondence concerning the issue. 3 10. Attached hereto as Exhibit H is a true and correct copy of the email I sent to 4 Peter Bales on March 10, 2019 at 5:01 p.m., meeting and conferring about scheduling of 5 motions, discovery delays, and third party subpoenas. 6 11. Attached hereto as Exhibit I is a true and correct copy of an email I sent to Peter 7 Bales on May 16, 2019 at 4:24 p.m. concerning Plaintiff’s admission that she had unilaterally 8 limited the scope of potentially responsive materials in her document production. 9 12. Attached hereto as Exhibit J is a true and correct copy of Judge Pro Tem Douglas 10 Robbins’ June 8, 2019 Report and Recommendation regarding Plaintiff’s Motion for Protective 11 Order. 12 13. Attached hereto as Exhibit K is a true and correct copy of the email I sent to 13 Peter Bales, as well as other counsel in this case, on July 2, 2019 at 11:32 p.m., meeting and 14 conferring about several matters including: Stipulation to correct invalid order taking 15 Defendants’ motions to compel off-calendar, sequence and timing of discovery, Plaintiff’s 16 privilege logs, Plaintiffs’ second production of documents, and Plaintiffs’ objection only or 17 deficient responses to Defendants’ second wave of discovery (RPDs Set Three, SROGs Set Two, 18 FROGs Set Two). 19 14. Attached hereto as Exhibit L is a true and correct copy of Judge Pro Tem Scott J. 20 Borrowman’s July 8, 2019 Report and Recommendation regarding Plaintiff’s Motion for 21 Protective Order. 22 15. Attached hereto as Exhibit M is a true and correct copy of Judge Pro Tem 23 Borrowman’s July 8, 2019 Report and Recommendation regarding Plaintiffs’ Motion to Quash 24 Defendant’s Third Party Subpoenas. 25 16. Attached hereto as Exhibit N is a true and correct copy of Judge Pro Tem 26 Adrienne Rogers’s July 16, 2019 Report and Recommendation regarding the appointment of a 27 discovery referee and Defendants’ motion for the timing and sequencing of discovery. 28 DECL. OF M. MOYA IN OPP’N TO PLTFS’ MOTION TO COMPEL COMPLIANCE WITH DEPO. NOTICE 2 17. Attached hereto as Exhibit O is a true and correct copy of the letter I sent to Peter 1 Bales on July 17, 2019, meeting and conferring about Plaintiffs’ verified responses to 2 Defendants’ RPDs (Set Three), SROGs (Set Two), and FROGs (Set Two). 3 18. This opposition is filed in good faith and not for any improper purpose. 4 I declare under penalty of perjury under the laws of the State of California that the 5 foregoing is true and correct. 6 7 Executed on July 31, 2019, at Oakland, California. 8 9 10 ________________________________ Mario A. Moya 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECL. OF M. MOYA IN OPP’N TO PLTFS’ MOTION TO COMPEL COMPLIANCE WITH DEPO. NOTICE 3 EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E 1300 Clay St., Suite 600 Oakland, California 94612 Tel: 510.926.6521 | Fax: 510.340.9055 Email: mmoya@moyalawfirm.com Sent Via Email March 23, 2019 Peter Bales, Esq. Buchalter, P.C. 55 Second Street, Suite 1700 San Francisco, CA 94105 pbales@buchalter.com Re: Meet-and-Confer re: Plaintiffs’ Responses to Def’s RFPDs (Sets One & Two) Grace Image Photography v. Fong, et al., No. CGC18569386 (San Francisco Co.) Dear Peter: As we discussed during our in-person meet and confer conference this past week, I write in reference to your clients Judy McKie and GIP’s responses to Defendant Fong and Wong’s First and Second Sets of Requests for Production of Documents, which were both served on Feb. 15, 2019 and Feb. 22, 2019, respectively. This letter is also intended to meet-and-confer concerning several deficiencies in the document production that you delivered via fileshare in response to Defendant Chai’s requests for production of documents. A. The Timing of Plaintiff’s Production Is Ambiguous; It Was Only Intended to Produce Documents Requested by Chai. On Feb. 1, 2019, your client, plaintiff Judy McKie, produced documents in response to Defendant Chai’s prior requests for production of documents. At the time of this production, neither plaintiff McKie nor plaintiff GIP had responded to Defendants Fong and Wong’s pending requests for production of documents. While those requests for production had been sent in December, we kindly accommodated your request for an extension of time to respond. We received responses to our clients’ First Sets of RFPDs two weeks later, when your client served her responses on Feb. 15, 2019 via USPS. With this in mind, it is unclear why your client has not yet produced any additional materials in response to Defendants Fong and Wong’s First and Second Sets of Requests for Production, which requested documents from a broader universe than those that were requested by Defendant Chai. Compare Chai RFPDs to McKie (Set One) (29 requests, served Nov. 29, 2018) with Fong & Wong RFPDs to McKie (Set One) (50 requests, served Dec. 14, 2018) & (Set Two) (two requests, served Jan. 18, 2019). Your client McKie’s responses to Chai’s RFPDs were served on January 10, 2019, while you served your clients’ responses to Defendants Fong and Wong’s First and Second Sets of RFPDs on Feb. 15, 2019 and Feb. 22, 2019, respectively. These response dates occurred after your production to Chai on Feb. 1, 2019. Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 2 of 14 Documents Exclusively Requested by Fong & Wong From what we can tell, the following categories documents were requested from Ms. McKie by Defendants Fong and Wong in their First and Second Sets of RFPDs but were not previously requested by defendant Chai: ● All documents identified in the Complaint but not identified by the Chai RFPDs to McKie (Set One) (see Fong & Wong RFPD No. 1, requesting all documents identified in the complaint); ● All documents that refer to, related to, or evidence documents identified in the Complaint but that are not requested by the Chai RFPDs (see Fong & Wong RFPD No. 2, requesting all documents that refer to or relate to documents identified in the complaint); ● All communications identified in the complaint that were not requested by Chai’s RFPDs (see Fong & Wong RFPD No. 3, requesting all communications identified in the complaint); ● All documents that refer to, relate to, or evidence communications identified in the complaint not covered by Chai Requests No. 6-19 (see Fong & Wong RFPD No. 4, requesting all documents that refer to or relate to communications identified in the complaint); ● All communications in McKie’s possession, custody, or control between Fong or Wong, on the one hand, and McKie, GIP, or any other person, on the other (see Fong & Wong RFPD Nos. 5-7, 9-11) ● All communications in McKie’s possession, custody, or control between McKie and any other person relating to or regarding Fong or Wong (Fong & Wong RFPD No. 8, 12) ● All communications in McKie’s possession, custody, or control between McKie and Mark Cohen or anyone else at Synesis Advisors (Fong & Wong RFPD No. 13, 14); ● All Communications in McKie’s possession, custody, or control between McKie and any other person regarding her purchase of GIP (Fong & Wong RFPD No. 15); ● All documents that McKie contends refer to, relate to, or evidence any improper communications between Fong or Wong and any current or former client of GIP Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 3 of 14 (Fong & Wong RFPD No. 16-19); ● All documents that McKie contends refer to, relate to, or evidence any improper solicitation or any current or former client of GIP by Fong or Wong (Fong & Wong RFPD No. 20-23); ● All documents which identify trade secret information or GIP customer identities allegedly misappropriated by Fong or Wong (Fong & Wong RFPD No. 24-27); ● All documents which describe, depict, or relate to GIP business losses McKie attributes to Fong or Wong’s alleged misappropriation of any GIP trade secrets (Fong & Wong RFPD No. 28-29); ● All documents that McKie contends supports her 15 causes of action alleged in the Complaint (Fong & Wong RFPD No. 30-44); and ● All documents that McKie identified in response her responses to defendants Fong and Wong’s Form Interrogatories (Set One) and Special Interrogatories (Set Two). Ms. McKie’s failure to produce any additional documents beyond what she already produced to defendant Chai in response to these various requests is rather peculiar and suggests that no such documents have been located or produced. Please advise whether Ms. McKie will be producing any additional information in response to the foregoing categories of information requested. In addition to the foregoing defendants Fong and Wong also requested documents of GIP, the entity. In particular, defendants Fong and Wong requested all responsive documents in the possession, custody, or control of GIP via a separate discovery demand. We note that the current form of GIP has not been disclosed in response to other Form Interrogatories that are the subject of forthcoming meet-and-confer correspondence). See generally RFPDs to GIP (Sets One & Two); see also infra. Documents Requested by Both Chai and Defendants Fong & Wong In addition, there are some areas of overlap that were requested by both defendant Chai and defendants Fong & Wong, but your responses indicate that you have not yet discovered any additional documents at issue between the time of your initial document production on Jan. 10 and your written responses to Fong and Wong on Feb. 15 and Feb. 22. These categories include (i) all documents identified in the complaint (like, for instance, the blind profile for GIP, the Buyer’s Acknowledgment of Introduction and Confidentiality Agreement, the confidential offering memorandum received by McKie, and any alleged written promises made to McKie about defendants Fong & Wong’s retirement (see compl. ¶¶ 11-13, 28); (ii) documents regarding payments Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 4 of 14 made by McKie to Defendants for purchase of GIP; and (iii) all documents regarding Ms. McKie’s mental anguish, emotional distress, medical treatment, and mental health treatment. See Fong & Wong RFPD Nos. 45-50. B. McKie’s Responses to Defendants’ RFPDs Nos. 1-50 & 51-52 Are Deficient Your responses to Defendants’ RFPDs contain the same, boilerplate response to each and every category of information requested: Following a diligent search and reasonable inquiry, Plaintiff produced the responsive non-privileged documents in her possession, custody or control found to date. Plaintiffs McKie and GIP’s Responses to RFPD Nos. 1-50 (Set One) & 51-52 (Set Two) (all identical responses, 104 responses in total). This response is deficient in two important respects. First, your clients’ statements that they “produced” documents “[f]ound to date” is deficient under the Discovery Act because we cannot tell which date they are referring to -- are they referring to the time when your documents were produced to Defendant Chai, or are they referring to the time when they responded to Defendants Fong and Wong? It should be the latter, but we have not received any additional responsive information from your clients. Put differently, your use of the past tense “produced” in your answer is inconsistent with your claim to have produced all documents “found to date” as to each response (especially because your clients have made only one production, which was in response to defendant Chai, who requested a much smaller universe of materials than defendants Fong and Wong). Please confirm that, as to the responses at issue, all responsive documents in Plaintiffs’ possession, custody, or control — at the time of the response — have been produced. Second, we note that your response deliberately misstates the scope of the request by agreeing to provide “responsive non-privileged documents” when the requests were not limited in that manner. You cannot unilaterally narrow the scope of documents requested by Plaintiff responding that you intend to produce only “non-privileged” documents in order to minimize your burden of establishing what materials were withheld by a claim of privilege. It should be emphasized that your clients have not asserted any objections in response on grounds of the attorney client privilege or the attorney work product doctrine, and they have not produced a privilege log required by C.C.P. § 2031.240(c)(1). It is well established under California law that if a party responding to discovery requests objects to any or all of the demands for production, the objections must be stated in the response, along with the ground for each objection. C.C.P. §2031.240(b). Unless respondent timely raises its privilege-related objections to the document requests and the precise grounds on which they are based, then those objections are Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 5 of 14 waived. See C.C.P. §2031.300; Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal. App. 4th 263, 274 (failure to include an objection expressly based upon attorney-client privilege in the initial response results in waiver of the attorney-client privilege); Stadish v. Superior Court (1999) 71 Cal. App. 4th 1130 (trade secret privilege waived as to first demand since that objection not asserted). C. The Document Production Received Feb. 15, 2019 Has Numerous Deficiencies. The materials that you produced on Feb. 15, 2019 contain several apparent deficiencies that need to be corrected. It is unclear whether these deficiencies were the result of human error or if these omissions were intentional, but we will presume the best and ask that you please correct the following deficiencies. 1. Earlier Email Chains & Missing Attachments There are several email threads that have been produced without earlier emails and their attachments. As you know, our requests for production demanded that all emails be produced along with their attachments, to establish the linkages between the documents. And instead of receiving every email exchanged between relevant parties to capture all communications and attachments, there are several emails in which only the latest email in an exchange is produced. The following are just a few examples of these emails. These documents conspicuously disclose that there are emails received by Ms. McKie that have not been produced. This is significant because those earlier emails contain attachments that were not produced. ● Bates No. GIP-McKie_00000045: Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 6 of 14 ● Bates No.: GIP-McKie_00000059: Again, these are just a few examples. It would be inefficient — if not patently unfair — for Defendants to shoulder the burden of identifying all of the e-mails and text messages in your production that are missing attachments and to identify them for you. In any event, it is beyond dispute that email attachments must be produced along with their parent emails. See Miller v. IBM, 2006 U.S. Dist. LEXIS 22506, at *18-19 (N.D.Cal. Apr. 14, 2006) (ordering the production of “relevant emails with the attachments . . . or . . . specific references (i.e., date of production, Bates and/or page numbers, and labels) which enable IBM to identify which attachments belong to which emails”); PSEG Power N.Y., Inc. v. Alberici Constructors, Inc., 2007 U.S. Dist. LEXIS 66767, at *36 (N.D.N.Y. Sept. 7, 2007) (“Without question, attachments should have been produced with their corresponding emails as such are kept in the usual course of business.”); CP Solutions PTE, Ltd. v. General Electric Co., 2006 U.S. Dist. LEXIS 27053, at *4 (D. Conn., Feb. 6, 2006) (“Defendants chose to provide the documents in the manner in which they were kept in the ordinary course of business. Attachments should have been produced with their corresponding e-mails.”). Accordingly, please produce these documents within seven (7) days of this letter, or we will have no choice but to move to compel. If you intend to meet-and-confer about these issues, then we request a 30-day extension of time on our motion to compel deadline to allow us the chance to do so. Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 7 of 14 2. Missing Files From Text Messages We have also encountered a similar problem with respect to your clients’ text messages. The pdf of text messages you produced (starting at Bates No. GIP-McKie_00004932) is a pdf report generated from Ms. McKie’s mobile device. That is the type of report displayed on the face of the document, but it fails to collect the underlying files on the mobile device. The text messages you produced are insufficient because the PDF report of text messages does not include the embedded files that are saved elsewhere on the phone. Because of this limitation, there are there are several image files that were displayed in the PDF export of text messages extracted from Ms. McKie’s cellular telephone, but the underlying image files were not produced as part of the production. We do not believe that Ms. McKie has complied with our requests for her mobile device data. For example, several text messages exchanged between Ms. McKie and Matt Cohen appear to contain .jpg files as attachments, however, these attachments are missing from the production. See GIP-McKie_00004985. These files are nowhere to be found in the universe of materials produced, and they have not been produced as attachments to the text messaging report that you have produced. To illustrate, the following messages were exchanged between Ms. McKie and Mr. Cohen on March 27, 2018 and illustrate how Ms. McKie invaded the defendant(s)’ privacy in their private messages. The following documents are highly relevant, and the underlying files should have been produced: ● Missing Attachments to Bates No. GIP-McKie_00004985 (sent March 27, 2018): ○ IMG_3715.JPG ○ IMG_3716.JPG ○ IMG_3720.JPG Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 8 of 14 Other messages exchanged between Ms. McKie and the defendants contain thumbnailed .jpg and .mov files, but no such files were produced as part of Ms. McKie’s production. See, e.g., Bates No.: GIP-McKie_00004937, GIP-McKie_00004946, GIP-McKie_00004946, IP-McKie_00004964, GIP-McKie_00004965, GIP-McKie_00004974, and GIP-McKie_00004977. For example, the following file attachments appear to have been sent between Ms. McKie and defendant Wong between December 21, 2016 to March 13, 2017, but have not been produced: ● Missing Attachments to Bates No. GIP-McKie_00004937 (sent Dec. 6, 2017): ○ FullSizeRender.jpg Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 9 of 14 ● Missing Attachment to Bates No. GIP-McKie_00004941 (sent Dec. 21, 2017): ○ 53559533452_2837F72E-463E-4407-A31F-D2C12F17D967.JPG ● Missing Attachment to Bates No. GIP-McKie_00004946 (sent Dec. 29, 2017): ○ IMG_3154.MOV ● Missing Attachment to Bates No. GIP-McKie_00004950 (sent Jan. 6, 2018): ○ IMG_3415.JPG ○ IMG_3416.JPG ○ IMG_3419.JPG ● Missing Attachment to Bates No. GIP-McKie_00004964 (sent Feb. 9, 2018): Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 10 of 14 ○ 53990162486_7A3E8BBE-789A-4A85-A817-517EA4843512.JPG ● Missing Attachment to Bates No. GIP-McKie_00004965 (sent Feb. 12, 2018): ○ 54015380015_7CB48985-1D44-456E-A10D-F213153D2A2E.JPG ● Missing Attachment to Bates No. GIP-McKie_00004974 (sent Feb. 28, 2018): ○ 54154621389_EB88FDAC-E1E0-40AF-9F8B-E2BD986CA862.JPG ● Missing Attachment to Bates No. GIP-McKie_00004977 (sent March 13, 2018): ○ IMG_5045.JPG Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 11 of 14 The attachments embedded within these text messages should be produced along with their accompanying messages because that is how they are kept in the ordinary course. See, e.g., Miller v. IBM, 2006 U.S. Dist. LEXIS 22506, at *18-19 (N.D.Cal. Apr. 14, 2006) (ordering the production of “relevant emails with the attachments . . . or . . . specific references (i.e., date of production, Bates and/or page numbers, and labels) which enable IBM to identify which attachments belong to which emails”); PSEG Power N.Y., Inc. v. Alberici Constructors, Inc. , 2007 U.S. Dist. LEXIS 66767, at *36 (N.D.N.Y. Sept. 7, 2007) (“Without question, attachments should have been produced with their corresponding emails as such are kept in the usual course of business.”). Please confirm you will produce these documents to us within of this letter, or we will have no choice but to move to compel. If you intend to meet-and-confer about these issues, then we request a 30-day extension of time on our motion to compel deadline to allow us the chance to do so. 3. Missing Text Messages It appears that you or your forensic vendor collected text messages exchanged with two other phone numbers, but those text messages were not produced. For example, there appear to be text messages between Ms. McKie, on the one hand, and Nick Ondrejka and/or another account kept by Ms. McKie, on the other, that were collected by your forensic vendor but not produced. See Bates No.: GIP-McKie_00004987 (see screenshot below): Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 12 of 14 Responsive materials from these collections (i.e., apparently saved as “chat-3.txt” and “chat-4.txt”) have not been produced and must be produced to the extent they contain responsive materials in response to these document requests and any further document requests that are forthcoming. 4. Unreadable Documents There are a few unreadable files that were produced in your production, but no accompanying clarification as to what the purpose or the responsiveness of the document. See, e.g., the following document, Bates No. GIP-McKie_00004830, which is impossible to read because it is so miniscule: Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 13 of 14 This image is so small — and barely legible — that the core part of the document seems to be a thumbnail within a thumbnail and unreadable. We have no ability to determine the significance of this document. 5. “456grace” Emails In recent motion practice, your client signed a declaration representing to the Court that she had no ability to access Ms. Fong’s personal email account at 456grace@gmail.com, which email address, Ms. McKie claims, was a company asset that should have been transferred to her at closing. You reiterated this representation in correspondence we received on March 8, 2019, and we have previously briefed and argued this issue to the Court in connection with our recent discovery dispute. However, several emails show that Ms. McKie did, in fact, have access to this email account because she forwarded copies of the documents to herself. Please clarify how this could be. Also, can you please confirm that neither you, your client, nor her prior counsel collected emails from this account via download or a remote collection? I expect that if you or your client have made any misstatements to the Court, then you will take immediate steps to cure any misimpressions. Please let me know if that is not the case. D. Plaintiff GIP’s Documents Early in this case, we alerted you to the peculiar problem posed by GIP also being named as a plaintiff in this case. Our understanding to date is that GIP is a sole proprietorship that is indivisible from Ms. McKie herself. GIP’s recent responses to the Form Interrogatories propounded by Defendants did little to clarify that concern, and we intend to meet-and-confer about the defendants’ responses to those interrogatories in the next week. In any event, please clarify as to whether GIP has possession, custody or control of a larger universe of documents than Ms. McKie herself. Under California law, a fictitious business name for a sole proprietorship has no existence apart from the party using the name. Accordingly, an action against a fictitious business name only is subject to dismissal. See Pinkerton's, Inc. v Superior Court (1996) 49 Cal. App. 4th 1342. * * * Ltr. to P. Bales re: RFPDs Sets 1-2 & Document Production March 23, 2019 Page 14 of 14 We welcome the opportunity to meet-and-confer with you in good faith concerning these various matters. Please let us know your availability for a telephone conference next week concerning these issues. If you will be unable to produce the materials requested within seven (7) days but intend to meet-and-confer in good faith about these various issues and a production of these missing materials, then we request a 21-day extension of time on our motion to compel deadline on my clients’ First and Second Sets of Requests for Production of Documents. Kind regards, /s/ Mario A. Moya Mario A. Moya MOYA LAW FIRM EXHIBIT F 1300 Clay St., Suite 600 Oakland, California 94612 Tel: 510.926.6521 | Fax: 510.340.9055 Email: mmoya@moyalawfirm.com Sent Via Email April 2, 2019 Peter Bales, Esq. Buchalter, P.C. 55 Second Street, Suite 1700 San Francisco, CA 94105 pbales@buchalter.com Re: I nsufficient Forensic Collection from Mobile Device; Spoliation Concerns; Need for Further Responses & Compliance Grace Image Photography v. Fong, et al., No. CGC-18-569386 (San Francisco Co.) Dear Peter: We write to further meet and confer about Plaintiff Judy McKie’s responses and production to Defendants Fong and Wong’s Requests for Production (Set One), Ms. McKie’s responses to Defendants’ Requests for Production (Set Two), and the electronic materials she has produced in response. Your client’s production of documents and communications from her mobile device is incomplete, deficient, and most worryingly displays signs of spoliation. We demand that you take corrective measures and immediately produce responsive materials. For the reasons explained below in Part B of this letter, we also have strong reason to believe that your prior discovery responses to Defendants Fong and Wong’s Requests for Production (Set One) are woefully insufficient, and you need to take immediate action to cure these defects by Friday April 5, 2019 or else we will have no choice but to file a motion to compel further responses the following Monday (unless you agree to a reasonable extension of time). A. Evidence of Evidence Suppression and/or Deletion in Your Client’s Production A party, or anyone who anticipates being a party, to a lawsuit has a duty to not destroy evidence. See Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1. Both a party and the party’s counsel may be sanctioned for spoliation of evidence, that is, the destruction or suppression of evidence. See Cedars-Sinai; Williams v. Russ (2008) 167 Cal. App. 4th 1215, 1223 (upholding sanctions for allowing files to be destroyed during litigation); R.S. Creative v. Creative Cotton (1999) 75 Cal. App. 4th 486 (holding terminating sanctions appropriate for deleting computer files). You and your client Judy McKie are surely well aware of the duty to preserve evidence, having erroneously accused our firm and our clients of spoliation (accusations which you later retracted and claim never to have made) in prior meet and confer correspondence dated November 14, 2018 and November 16, 2018. You even went so far as to seek a preliminary injunction to prevent the destruction of evidence without any actual evidence of a threat, which the court sensibly struck down. Further Letter to P. Bales re: Plaintiff McKie’s Text Messages April 9, 2019 Page 2 of 9 Now, after review of your client’s production, it appears your client has done the very actions she accused Defendants of doing. Files from the production for your client’s mobile phone indicate 588 missing text messages between Ms. McKie and “Nick Ondrejka” (phone number (415) 360-4417) and 1869 missing text messages between Ms. McKie and “JM” (phone number (917) 582-7672), who we believe to be John Martinell (neither of whom are disclosed in your written discovery responses, even though you went so far as to collect those messages from Ms. McKie’s device). We now discuss them in order: 1. Nick Ondrejka: (415) 360-4417 It is our understanding that Nick Ondrejka was heavily involved in Plaintiff’s purchase of GIP, and thus that communications with Nick Ondrejka are unquestionably relevant to this case. We have reason to believe that Ms. McKie and Mr. Ondrejka were formerly partners, and documents received from Synesis Advisors show that Mr. Ondrejka’s name is on a $5,000 check that was the first payment Judy McKie provided for GIP. A search of public records reveal that Mr. Ondrejka and Ms. McKie were business partners of Severs Block Holding Company, LLC, which took out a large amount of business loans for a redevelopment project in Ms. McKie’s hometown. Together, Ms. McKie and Mr. Ondrejka defaulted on over $750,000 in loans and had multiple judgments against them in multiple states. Your production indicates that there were 588 text messages between Ms. McKie and Mr. Ondrejka from September 7, 2016 to January 13, 2019. The majority of this timeframe includes negotiations for the purchase of GIP, the signing of the Asset Purchase Agreement, preparation and signature of the Buyer’s Disclosure Statement, payments made for the purchase of GIP, and the filing of this litigation. We find it hard to believe that none of the 588 text messages (if not more) between Ms. McKie and Mr. Ondrejka were responsive to our document requests, including but not limited to Defendants’ Request for Production Nos. 8, 12, and No. 15, which read as follows: