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170V318162
Santa Clara — Civil
MORGAN, LEWIS & BOCKIUS LLP Electronically Filed
Melinda S. Riechert, Bar No. 65504 by Superior Court of CA,
1400 Page Mill Road County of Santa Clara,
Palo Alto, CA 94304 on 2/18/2022 12:32 PM
Tel: +1.650.843.4000
Fax: +1.650.843.4001 Reviewed By: F. Miller
melinda.riechert@morganlewis.com Case #17CV318162
Envelope: 8326486
Joseph R. Lewis, Bar No. 316770
One Market, Spear Street Tower
San Francisco, California 94105-1596
Telephone: +1.415.442.1000
Facsimile: +1.415.442.1000
joseph.lewis@morganlewis.com
Attorneys for Defendant
SAMSUNG RESEARCH AMERICA, INC.,
PRANAV MISTRY, and SAJID SADI
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SANTA CLARA
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JAWAHAR JAIN, an individual, Case No. 17CV318162
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Plaintiff, DECLARATION OF JOSEPH R.
16 LEWIS IN SUPPORT OF IN SUPPORT
vs. OF DEFENDANTS’ MOTION FOR
17 SANCTIONS PURSUANT TO SECTION
SAMSUNG RESEARCH AMERICA, INC., a 128.7 REGARDING PLAINTIFF’S
18 California corporation; PRANAV MISTRY, an OBJECTIONS TO REFEREE’S
individual; SAJID SADI, an individual; and PROPOSED ORDERS RE:
19 DOES | through 100, inclusive, PLAINTIFF’S MOTIONS FOR
SANCTIONS AND TO DISQUALIFY
20 Defendants. DEFENDANTS’ COUNSEL
21 Dept.: 19
Trial Date: March 21, 2022
22 Date: TBD
Time: TBD
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MorGAN, LEWIS & DECLARATION OF JOSEPH R. LEWIS IN SUPPORT OF IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS
Bockius LLP PURSUANT TO SECTION 128.7 REGARDING PLAINTIFF’S OBJECTIONS TO REFEREE’S PROPOSED ORDERS RE:
ArrorNsys ar Law PLAINTIFF’S MOTIONS FOR SANCTIONS AND TO DISQUALIFY DEFENDANTS’ COUNSEL
Suicon Vatey
DB2/ 42473341.1
DECLARATION OF JOSEPH R. LEWIS
I, Joseph R. Lewis, declare as follows:
1 Tam an associate with the law firm of Morgan, Lewis & Bockius LLP, counsel of
record for Defendants Samsung Research America, Inc. (“SRA”), Pranav Mistry, and Sajid Sadi
(together, “Defendants”) in this action. In my capacity as counsel of record for Defendants in this
action, I have personal knowledge of the facts set forth in this declaration, and I could and would
testify competently thereto if called upon to do so.
2 I make this Declaration in support of Defendants’ Motion for Sanctions Pursuant
to Section 128.7 regarding Plaintiff's Objections To Referee’s Proposed Orders Re: Plaintiff's
Motions for Sanctions and to Disqualify Defendants’ Counsel.
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3 Attached hereto as Exhibit A is a true and correct copy of Judge Kleinberg’s
Proposed Order regarding Plaintiff's for Terminating and Other Sanctions.
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4 Attached hereto as Exhibit B is a true and correct copy of Judge Kleinberg’s
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Proposed Order regarding Plaintiff's for Sanctions Pursuant to Section 128.7.
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5 Attached hereto as Exhibit C is a true and correct copy of Judge Kleinberg’s
Proposed Order regarding Plaintiff's to Disqualify Defendants’ Counsel.
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6. In this single plaintiff case, Plaintiff has propounded hundreds of written discovery
requests to each Defendant, taken nine depositions, filed several motions to compel, petitioned for
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two writs to the Court of Appeal, brought two requests for terminating sanctions, and threatened a
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federal class action lawsuit against Defendants’ counsel.
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7 Attached hereto as Exhibit D is a true and correct copy of the Court’s Order
regarding Defendants’ Motion for Summary Adjudication.
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23 8 In hopes of resolving Plaintiffs forgery allegations without Court intervention,
Defendants sent Plaintiff electronic versions of certain emails requested by Plaintiff to show that
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no forgery occurred.
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26 9 On June 22, 2021, Defendants provided Plaintiff with a letter from Tess Blair, the
27 Head of Morgan Lewis’s eData Practice Group, to explain that changes in the metadata of the
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MorGAN, LEWIS & DECLARATION OF JOSEPH R. LEWIS IN SUPPORT OF IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS,
Bockius LLP PURSUANT TO SECTION 128.7 REGARDING PLAINTIFF’S OBJECTIONS TO REFEREE’S PROPOSED ORDERS RE:
ArrorNeys ar Law PLAINTIFF’S MOTIONS FOR SANCTIONS AND TO DISQUALIFY DEFENDANTS’ COUNSEL
Suicon Vatey
DB2/ 42473341.1
digital emails that Defendants produced is not evidence of “forgery,” but rather, the natural result
of how the emails were collected and produced in this case. Attached hereto as Exhibit E is a
true and correct copy of Blair’s correspondence.
10. Also, before Plaintiff filed any of his Motions, on July 16, 2021, Defendants
provided Plaintiff with a Declaration from Melinda Riechert, the lead counsel on this case, which
contained a step-by-step explanation of how Defense counsel received certain emails from
Defendant (which Plaintiff alleges were forged), how the emails were saved, and how they were
produced. Attached hereto as Exhibit F is a true and correct copy of Riechert’s Declaration.
11. Plaintiff did not substantively respond to the questions in Blair’s letter or the
10 points in Riechert’s declaration. Instead, he filed a Motion to Disqualify Morgan, Lewis &
11 Bockius LLP as Defendants’ Counsel on July 27, 2021 and a Motion for Terminating and Other
12 Sanctions on July 28, 2021. Plaintiff also sent Defense Counsel a draft federal court complaint on
13 August 4, 2021. The draft complaint asserts the exact same, disproven allegations about hacking,
14 falsification, and fabrication that were already addressed in Blair’s June 22, 2021 letter and
15 Riechert’s July 16, 2021 declaration. The draft complaint is styled as a class action and purports
16 to assert claims on behalf of all opposing counsel and opposing parties in any litigation wherein
17 Morgan Lewis has served as counsel. The named defendants are Morgan Lewis, and three
18 Morgan Lewis lawyers individually, Riechert, Lewis and Blair.
19 12. To respond to Plaintiffs allegations, Defendants hired a well-regarded digital
20 forensic expert, Dan Regard. Defendants filed an Opposition to Plaintiff's Motion for
21 Terminating and Other Sanctions and submitted a declaration from Regard.
22 13. On September 30, 2021, Plaintiff moved for Sanctions Under to Section 128.7,
23 alleging fraud regarding Defendants’ Opposition to Plaintiff's Motion for Terminating Sanctions.
24 On October 4, 2021, this Court appointed Judge Kleinberg as a Referee to decide Plaintiff's three
25 Motions.
26 14, Defendants have provided the notice required to file this Motion for Sanctions
27 pursuant to Section 128.7(b).
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MorGAN, LEWIS & DECLARATION OF JOSEPH R. LEWIS IN SUPPORT OF IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS
Bockius LLP PURSUANT TO SECTION 128.7 REGARDING PLAINTIFF’S OBJECTIONS TO REFEREE’S PROPOSED ORDERS RE:
ArrorNeys ar Law
Suicon Vatey DB2/ 42473341.1 PLAINTIFF’S MOTIONS FOR SANCTIONS AND TO DISQUALIFY DEFENDANTS’ COUNSEL
15. Judge Kleinberg signed a Declaration stating that he reviewed all filings. Attached
hereto as Exhibit G is a true and correct copy of Judge Kleinberg’s Declaration.
16. SRA’s counsel spent 42.9 hours responding to Plaintiff's Objections to the
Proposed Orders issued by Judge Kleinberg. The partner Melinda Riechert spent 20.8 and the
Associate Joseph Lewis spent 22.1 hours. Defendant spent an additional 30.6 hours preparing
this motion. Riechert spent 1.8 hours and Lewis spent 28.8 hours.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, and that this declaration was executed on January 27, 2022 in San
Francisco, California.
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12 Joseph Lewis
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MorGAN, LEWIS & DECLARATION OF JOSEPH R. LEWIS IN SUPPORT OF IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS
Bockius LLP PURSUANT TO SECTION 128.7 REGARDING PLAINTIFF’S OBJECTIONS TO REFEREE’S PROPOSED ORDERS RE:
ArrorNeys ar Law
Suicon Vatey DB2/ 42473341.1 PLAINTIFF’S MOTIONS FOR SANCTIONS AND TO DISQUALIFY DEFENDANTS’ COUNSEL
EXHIBIT A
Hon. James P. Kleinberg (Ret.)
JAMS
160 West Santa Clara Street, Suite 1600
San Jose, CA 95113
Tel: 408-288-2240
jkleinberg@jamsadr.com
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
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JAWAHAR JAIN, Case No.: 17CV318162
ll JAMS Case No. 1110027614
Plaintiff,
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13 vs.
REFEREE’S PROPOSED ORDER RE:
14 SAMSUNG RESEARCH AMERICA, INC., PLAINTIFF’S MOTION FOR
ET.AL., TERMINATING SANCTIONS PURSUANT
15 TO CCP SECTION 2023.030
Defendants
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17 I HISTORY AND BACKGROUND
18 The following introduction precedes each of the three pending motions:
19 Because the three pending motions are interrelated it is useful to review the litigation
20 history. The suit was filed almost five years ago alleging fifteen causes of action all arising out off
21 Plaintiff's employment with Samsung Research America, Inc. (“SRA”). There has been the
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typical rounds of discovery, leading to Plaintiff filing a motion for spoliation of evidence and
Defendants filing a motion for summary judgment, or in the alternative, summary adjudication.
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Following a hearing on these motions on August 25, 2020 the Court issued a fifty-six page Order|
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on September 10, 2020 (the “Order”) addressing the Plaintiff’s allegations in the operative fourth!
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amended complaint (“FAC”). The Court recites in detail Plaintiff's allegations at pages two
26 through six of the FAC,
27 Plaintiff's motions sought terminating sanctions as he does now, again grounded in CCP
28 § 2023.030. The Court concluded in the Order that the sanctions sought by Plaintiff were not
PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 1
authorized by the Civil Discovery Act, nor justified by the Court’s inherent power to control the
litigation. Order at 16 and 17. Therefore the Court, at page 27 of the Order, found “Defendants
presented undisputed material facts and substantial evidence” and denied the motion for
terminating sanctions and concurrently denied Plaintiff's request for attorneys’ fees.
Defendants’ motion for summary judgment or, alternatively summary adjudication, was
directed at every cause of action in the complaint. The Court denied the summary adjudication
motion as to the 4th through 14th causes of action and granted the motion as to the second, third
and 15th causes of action. Then, unsatisfied with this ruling, Plaintiff moved for reconsideration
of the Order as to three causes of action where he lost — the second, third, and fifteenth. On April
8, 2021 an order was filed denying the motion for reconsideration. Plaintiff appealed and, in a
10 one page ruling, the Court of Appeal affirmed the Order.
Il Which leads us to Plaintiff's three pending motions: again, a motion for terminating and
12 other sanctions pursuant to CCP§ 2023.030, a motion for sanctions pursuant to CCP §128.7, and
13 a motion to disqualify the firm of Morgan, Lewis & Bockius LLP from representing Defendants.
Il. INTRODUCTION
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15 This is another attempt by Plaintiff, through his counsel, to proceed with this case. The
16 Court, on September 10, 2020, granted summary adjudication on the claims for wrongful
termination, retaliation, and unjust enrichment. See Order, Pages 27 and 30. Having essentially
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lost the case in chief, Plaintiff has now shifted to another tack: attacking Defense counsel for
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“forgery” and mishandling discovery over a two to three year period. Plaintiff's counsel has also
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tried, by threatening a federal class action, to extort some payment from Defendants. The instant
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motion is grounded in Code of Civil Procedure Section 2023.030 which provides:
21 “To the extent authorized by the chapter governing any particular discovery method or
22 any other provision of this title, the court, after notice to any affected party, person, or attorney,
23 and after opportunity for hearing, may impose the following sanctions against anyone engaging
24 in conduct that is a misuse of the discovery process:
25 (a) The court may impose a monetary sanction ordering that one engaging in the misuse
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of the discovery process, or any attorney advising that conduct, or both pay the reasonable
expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may
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also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse
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PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 2
of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary
sanction is authorized by any provision of this title, the court shall impose that sanction unless it
finds that the one subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(b) The court may impose an issue sanction ordering that designated facts shall be taken
as established in the action in accordance with the claim of the party adversely affected by the
misuse of the discovery process. The court may also impose an issue sanction by an order
prohibiting any party engaging in the misuse of the discovery process from supporting or
opposing designated claims or defenses.
(c) The court may impose an evidence sanction by an order prohibiting any party
10 engaging in the misuse of the discovery process from introducing designated matters in evidence.
iW (d) The court may impose a terminating sanction by one of the following orders:
12 (1) An order striking out the pleadings or parts of the pleadings of any party
13 engaging in the misuse of the discovery process.
(2) An order staying further proceedings by that party until an order for discovery
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is obeyed.
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(3) An order dismissing the action, or any part of the action, of that party.
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(4) An order rendering a judgment by default against that party.
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(e) The court may impose a contempt sanction by an order treating the misuse of the
18 discovery process as a contempt of court.
19 (1) Notwithstanding subdivision (a), or any other section of this title, absent
20 exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a
21 party for failure to provide electronically stored information that has been lost, damaged, altered,
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or overwritten as the result of the routine, good faith operation of an electronic information
system,
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(2) This subdivision shall not be construed to alter any obligation to preserve
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discoverable information.”
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Plaintiff has claimed he has retained a group of expert witnesses who have “confirmed
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Samsung fabricated evidence in many respects.” This allegation is false. The cited reports say
EY nothing of the kind because the email in question were not in “original” or “native” format.” To
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PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 3
put this issue to rest, Samsung produced in “native format” a list of emails Plaintiff provided for
the experts to analyze. Plaintiff asserted these documents could not be opened, so yet another set
was sent. Plaintiff then raised yet another claim, that Defense counsel had “hacked” his
computer. Samsung counsel Blair sent a letter to Plaintiff's counsel asking technical questions to
resolve any issues. Instead of responding to that letter, Plaintiff's counsel filed the instant
motion, coupled with the federal complaint which is styled as a class action against the Morgan
Lewis firm, the lawyers from that firm who represent Samsung in this action, and on its face
pertains to any litigation in which that firm has appeared.
Til. ISSUES
A, The manipulation of email
10 Experts from both sides were retained to determine whether emails provided in separate
1 sets were “manipulated” and not “true copies.” Morgan Lewis retained Dan Regard, an
12 electronic discovery and computer science consultant conversant in such issues for twenty years.
13 A significant conclusion reached by Mr. Regard is since the text of the documents was the same,
there has been no forgery. The date any of the documents in question was created was not
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altered. Further, Defendant did not alter the original production sequence. Plaintiffs counsel did
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not respond in good faith to offers to resolve his “hacking” claims.
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B. Security Badge Logs
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Defendants’ key discovery here was that the door number in badge records increased
18 by1 digit with every entry. This was a simple typographical mistake as a result of Excel auto-
19 populating the number sequence.
20 C. Phone records
21 The phone records issue is a non-starter because the numbers are reciprocated.
22 D. Compliance with Motions to Compel Orders
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In October 2018 the responses to Form Interrogatories were not complete. A review of
Defendants’ compliance with the Discovery Order shows it was appropriate. If this information
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was truly important it should not have taken Plaintiff almost three years to raise this issue. The
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Second Order to compel of March 2019 was complied with, and the Plaintiff ignored that the key|
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document in that dispute was, in fact produced on May 3, 2019. Defendants did not produce a
27 document Plaintiff himself had produced because they couldn’t locate it. In any event, this
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PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 4
particular email was in Plaintiff's possession anyway.
E. False representations in oral argument
The record is clear both sides have not logged post-litigation emails and the reference to
this subject in argument is not an issue.
F. Revised version of the same document
Defendants corrected a prior misstatement and produced two versions of a typewritten
timeline. For two years Plaintiff took no action regarding this correction.
G. Plaintiff's resurrected motion for spoliation
On January 6, 2020 Plaintiff brought a sanctions motion based on the allegation that
Defendants had failed to preserve various items of evidence. On September 10, 2020 the Court
10 denied that motion, finding that none of the items were particularly probative and/or were lost
ll before the litigation became imminent. September 10, 2020 Order at 15-16.
12 H. Post-litigation email
13 Plaintiff's declaration does not identify which document was “never-before-disclosed.”
I “Non-existent documents”
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Letters of support for Plaintiff have not been produced because they haven’t been found.
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And there was no performance review for Plaintiff for 2017 produced because there wasn’t any
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since he was terminated in September of that year.
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J, Deposition testimony
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Mistry testified he “didn’t know, didn’t recall, or didn’t remember.” Evaluating that
19 testimony is for the trier of fact to determine.
20 K. Falla’s testimony
21 Plaintiffs complaints again are for the trier of fact to judge. But it is noteworthy that
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Plaintiff's citations to the Falla transcript are inaccurate and do not bear out the accusations in
the instant motion.
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L. Sadi’s testimony
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This is a semantical dispute, not worthy of sanctions.
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IV. CONCLUSION
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This motion should never have been brought. The obvious conclusion is that, having lost the
27 motion to have essential claims dismissed pursuant to the Court’s September 10, 2020 Order,
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PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 5
Plaintiff—and, more precisely, his counsel — are using every procedural device to try and extort a
payment by Defendants by threats. Although Defendants did not request compensation from
Plaintiff or his counsel for having to respond to this ploy it would not be improper for such a
sanction to be imposed.
Plaintiffs motion should be denied.
A Statement of Account for my services is attached hereto.
Respectfully submitted, ,
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oF VY Mer
mn. James P. Kleinberg (Ret}
Referee Pursuant to CCP§639
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PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 6
EXHIBIT B
Hon. James P. Kleinberg (Ret.)
JAMS
160 West Santa Clara Street, Suite 1600
San Jose, CA 95113
Tel: 408-288-2240
jkleinberg@jamsadr.com
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
JAWAHAR JAIN, Case No.: 17CV318162
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ll Plaintiff,
JAMS Case No. 1110027614
12 vs.
13 SAMSUNG RESEARCH AMERICA, INC.,
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ET.AL,, REFEREE’S PROPOSED ORDER RE:
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PLAINTIFF’S MOTION PURSUANT TO
Defendants
CCP SECTION 128.7
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19 I HISTORY AND BACKGROUND
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The following introduction precedes each of the three pending motions:
Because the three pending motions are interrelated it is useful to review the litigation
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history. The suit was filed almost five years ago alleging fifteen causes of action all arising out
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of Plaintiff's employment with Samsung Research America, Inc. (“SRA”). There has been the
23
typical rounds of discovery, leading to Plaintiff filing a motion for spoliation of evidence and
24
Defendants filing a motion for summary judgment, or in the alternative, summary adjudication.
25 Following a hearing on these motions on August 25, 2020 the Court issued a fifty-six page
26 Order on September 10, 2020 (the “Order”) addressing the Plaintiff's allegations in the
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PROPOSED ORDER RE SECTION 128.7
operative fourth amended complaint (“FAC”). The Court recites in detail Plaintiff's allegations
at pages two through six of the FAC.
Plaintiff's motions sought terminating sanctions as he does now, again grounded in CCP §
2023.030. The Court concluded in the Order that the sanctions sought by Plaintiff were not
authorized by the Civil Discovery Act, nor justified by the Court’s inherent power to control the
litigation. Order at 16 and 17. Therefore the Court, at page 27 of the Order, found “Defendants
presented undisputed material facts and substantial evidence” and denied the motion for
terminating sanctions and concurrently denied Plaintiff's request for attorneys’ fees.
Defendants’ motion for summary judgment or, alternatively summary adjudication, was
directed at every cause of action in the complaint. The Court denied the summary adjudication
10 motion as to the 4th through 14th causes of action and granted the motion as to the second, third]
i and 15th causes of action. Then, unsatisfied with this ruling, Plaintiff moved for reconsideration!
12 of the Order as to three causes of action where he lost — the second, third, and fifteenth. On
13 April 8, 2021 an order was filed denying the motion for reconsideration. Plaintiff appealed and,
in a one page ruling, the Court of Appeal affirmed the Order.
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Which leads us to Plaintiff's three pending motions: again, a motion for terminating and
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other sanctions pursuant to CCP§ 2023.030, a motion for sanctions pursuant to CCP §128.7, and
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a motion to disqualify the firm of Morgan, Lewis & Bockius LLP from representing
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Defendants.
18 IL. GOVERNING LAW
19 Section 128.7 of the California Code of Civil Procedure provides:
20 “(a) Every pleading, petition, written notice of motion, or other similar paper shall be
21 signed by at least one attorney of record in the attorney's individual name, or, if the party is not
22 represented by an attorney, shall be signed by the party. Each paper shall state the signer's
address and telephone number, if any. Except when otherwise provided by law, pleadings need
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not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless
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omission of the signature is corrected promptly after being called to the attention of the attorney
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or party.
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(b) By presenting to the court, whether by signing, filing, submitting, or later
27 advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or
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PROPOSED ORDER RE SECTION 128.7
1 unrepresented party is certifying that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances, all of the following
conditions are met:
(1) It is not being presented primarily for an improper purpose, such as to harass
or to cause unnecessary delay or needless increase in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein are warranted by
existing law or by a nonfrivolous argument for the extension, modification, or reversal
of existing law or the establishment of new law.
(3) The allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a reasonable
10 opportunity for further investigation or discovery.
11 (4) The denials of factual contentions are warranted on the evidence or, if
12 specifically so identified, are reasonably based on a lack of information or belief.
13 (c) If, after notice and a reasonable opportunity to respond, the court determines that
subdivision (b) has been violated, the court may, subject to the conditions stated below,
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impose an appropriate sanction upon the attorneys, law firms, or parties that have
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violated subdivision (b) or are responsible for the violation. In determining what
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sanctions, if any, should be ordered, the court shall consider whether a party seeking
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sanctions has exercised due diligence.
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(1) A motion for sanctions under this section shall be made separately from other
19 motions or requests and shall describe the specific conduct alleged to violate subdivision!
20 (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed
21 with or presented to the court unless, within 21 days after service of the motion, or any
22 other period as the court may prescribe, the challenged paper, claim, defense, contention.
allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court
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may award to the party prevailing on the motion the reasonable expenses and attorney's
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fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a
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law firm shall be held jointly responsible for violations committed by its partners,
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associates, and employees.
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PROPOSED ORDER RE SECTION 128.7
(2) On its own motion, the court may enter an order describing the specific
conduct that appears to violate subdivision (b) and directing an attorney, law firm, or
party to show cause why it has not violated subdivision (b), unless, within 21 days of
service of the order to show cause, the challenged paper, claim, defense, contention,
allegation, or denial is withdrawn or appropriately corrected,
(d) A sanction imposed for violation of subdivision (b) shall be limited to what is
sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.
Subject to the limitations in paragraphs (1) and (2), the sanction may consist of, or include,
directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on
motion and warranted for effective deterrence, an order directing payment to the movant of
10 some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the
11 violation.
12 (1) Monetary sanctions may not be awarded against a represented party for a
13 violation of paragraph (2) of subdivision (b).
(2) Monetary sanctions may not be awarded on the court's motion unless the
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court issues its order to show cause before a voluntary dismissal or settlement of the
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claims made by or against the party that is, or whose attorneys are, to be sanctioned.
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(e) When imposing sanctions, the court shall describe the conduct determined to
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constitute a violation of this section and explain the basis for the sanction imposed.
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(f) In addition to any award pursuant to this section for conduct described in subdivision
19 (b), the court may assess punitive damages against the plaintiff upon a determination by the
20 court that the plaintiff's action was an action maintained by a person convicted of a felony
21 against the person's victim, or the victim's heirs, relatives, estate, or personal representative, for
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injuries arising from the acts for which the person was convicted of a felony, and that the
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plaintiff is guilty of fraud, oppression, or malice in maintaining the action.
(g) This section shall not apply to disclosures and discovery requests, responses,
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objections, and motions.
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(h) A motion for sanctions brought by a party or a party's attorney primarily for an
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improper purpose, such as to harass or to cause unnecessary delay or needless increase in the
27 cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the
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PROPOSED ORDER RE SECTION 128.7
Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct
or comparable conduct by others similarly situated.
(i) This section shall apply to a complaint or petition filed on or after January 1, 1995,
and any other pleading, written notice of motion, or other similar paper filed in that matter.”
Case law considering Section 128.7 motions is explicit: “The purpose of Section 128.7
is to deter frivolous filings.” In re Marriage of Falcone & Fyke 164 Cal.App.4" 814,826 (2008)
California case authority finds Rule 11 of the Federal Rules of civil Procedure to be persuasive
authority. Guillemin y. Stein, 104 Cal.App.4 156,168 (2002). It is in this context Plaintiffs
bases for this motion are without merit and this litigation ploy is, itself, sanctionable. Section
(h), supra.
10 Til. PLAINTIFF’S ARGUMENTS AND DEFENDANTS’ RESPONSES
1 A “Hacking” allegations
12 Plaintiff's counsel (“ILG”) accused Morgan Lewis of hacking ILG’s email
13 system. Since the record is clear that ILG initiated the “hacking” allegations See, email from
ILG to Morgan Lewis of June 2, 2021, letter from ILG to Morgan Lewis of June 3, 2021, email
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from ILG to Morgan Lewis of June 23, 2021, letter from ILG to Morgan Lewis of July 6, 2021,
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letter from ILG to Morgan Lewis of August 3, 2021. It was — and is — objectively reasonable
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(and therefore not a violation of Section 128.7 ) for Defendants to make these allegations.
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B Motion filing date
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The “untimeliness” of Plaintiff's Motion for Terminating Sanctions does not equate to a
19 violation of Section 128.7 because the fact the filing date of July 28, 2021 was incorrectly stated
20 to be two days later, i.e., July 30, 2021, does not warrant Section 128.7 sanctions. This minor
21 date issue does not rise to a violation of Section 128.7.
Cc “Forgery”
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ILG accused Morgan Lewis of forgery.' The context is critical here. The Superior Court
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granted summary adjudication on Plaintiff's claims for wrongful termination, retaliation, and
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' “Forgery” is defined as follows: “The falsely making or materially altering, with intent to
27 defraud, any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal
liability.” Black’s Law Dictionary
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PROPOSED ORDER RE SECTION 128.7
unjust enrichment, and Plaintiff's appeal of this ruling was unsuccessful, as decided by the
Court of Appeal in one sentence, The forgery allegation is an attempt to undo the prior rulings
on Plaintiff's claims, but in the light of the case history Section 128.7 does not apply.
D. Citations to website
ILG’s computer issues resulted in Defendants and their counsel being accused
of violating Section 128.7 by identifying ILG’s email address in a data breach database.
Defendants identifying third parties and other accounts that have been potentially compromised
does not violate Section 128.7.
E. Security badge records and Excel
Security badge records were produced in a spreadsheet. misnumbered through an
10 automated Excel function. The incorrect computer-generated (via Excel) door numbers
1 produced were corrected. As such, this incident doesn’t equate to “forgery” or a violation of
12 Section 128.7. The issue of the badges’ accuracy pre-dated the motion for terminating sanctions
13 and this issue is not relevant to the pending motion.
F. Email forgery
14
Plaintiff's expert reports do not bear out the accusation that Morgan Lewis modified
15
content in emails. In contrast to the pending motion’s allegations plaintiffs expert reports do
16
not make such a statement. Thus, no basis for sanctions pursuant to Section 128.7 exists on this
17
issue.
18 G. Vallbona citation
19 The Valibona citation by Defendants was essentially verbatim, supports the argument in
20 question and thus does not violate Section 128.7.
21 H. Date of performance review
22 Plaintiff mis-cited the date of the subject Performance Review, and it was reasonable for
Defendants to refer to the Review for 2016, not 2014. This issue does not rise to a violation of
23
Section 128.7.
24
I Regard Report
25
The Declaration of Daniel Regard was cited in the Defendants’ Opposition, but was not
26
attached. When this was brought to Defendants’ attention it was submitted to counsel.
27
28
PROPOSED ORDER RE SECTION 128.7
Plaintiffs counsel had three months to consider the issue of this document. This is not a Section
128.7 violation.
J. Email format
In the Opposition to Plaintiff's Motion for terminating Sanctions explained why it was
proper to initially produce PDF files. The format of emails in PDF is not irrelevant because this
issue, raised by Plaintiff, needed a response. In any event this event does not rise to a Section
128.7 violation.
K. “Native” copies of emails
Plaintiff wanted “forensically sound” copies of emails and received files from
Defendants that were native to Outlook and stored on servers since the beginning of the case. It
10 does not appear from the record that Plaintiff sought emails from SRA’s servers. In any event,
i this issue does not rise to the level of a Section 128.7 violation.
12 L. Bates labeling
13
The issue of Bates labeling and metadata in the production of documents does not rise to
a Section 128.7 violation. Plaintiffs losing Motion for Terminating Sanctions does not turn on
14
metadata.
15
M. Blair declaration
16
Tess Blair, a counsel for Defendants admitted to the bars of Pennsylvania and New
17
Jersey, submitted a declaration. The Court granted her pro hac vice application over Plaintiff
18 Counsel’s opposition. Section 128.7 does not apply to this circumstance and claiming that it
19 does adversely colors Plaintiff's Section 128.7 motion.
20 IV. CONCLUSION
21 The Referee finds the following paragraphs of Section 128.7 are especially pertinent to
22 this motion:
(g) This section shall not apply to disclosures and discovery requests, responses
23
objections, and motions.
24
(h) A motion for sanctions brought by a party or a party's attorney primarily for an
25
improper purpose, such as to harass or to cause unnecessary delay or needless increase in the
26
cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the
27
28
PROPOSED ORDER RE SECTION 128.7
Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct
or comparable conduct by others similarly situated, (emphasis supplied)
It is significant that the underlying history shows this to be a third attempt by Plaintiff to
reverse decisions of the Superior Court and the Court of Appeal denying his claims for
wrongful termination and lost wages. It is worth noting that Plaintiff previously moved for
terminating sanctions against Defendant Samsung Research America for the purported
spoliation of evidence. That motion was denied by the Superior Court on September 9, 2020. It
is apparent the instant motion directed at Samsung’s counsel is a similar attempt by Plaintiff.
Here, Section (h) of 128.7 applies, and Defendant is entitled to recover the fees and costs
incurred in opposing this motion. An application by Defendant for fees and costs may be
10 submitted if the Court approves this finding by the Referee.
il Plaintiff's Motion should be denied.
12 A Statement of Account for my services is attached hereto.
13
14
DATED bauer ZA 2 22
15
16 Respectfully submitted,
Pller
17
18
19
Hon. James P. Kleinberg (Ret.)
Referee Pursuant to CCP §639
20
20
22
23
24
25
26
27
28
PROPOSED ORDER RE SECTION 128.7
EXHIBIT C
Hon. James P. Kleinberg (Ret.)
JAMS
160 West Santa Clara Street, Suite 1600
San Jose, CA 95113
Tel: 408-288-2240
jkleinberg@jamsadr.com
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA.
JAWAHAR JAIN, Case No.: 17CV318162
JAMS Case No. 1110027614
Plaintiff, REFEREE’S PROPOSED ORDER RE:
10 PLAINTIFF’S MOTION TO DISQUALIFY
Vs.
DEFENSE COUNSEL
i
SAMSUNG RESEARCH AMERICA, INC.,
12
ET.AL.,
18 Defendants
14 I HISTORY AND BACKGROUND
15
The following introduction precedes each of the three pending motions:
16
Because the three pending motions are interrelated it is useful to review the litigation
17
18 history. The suit was filed almost five years ago alleging fifteen causes of action all arising out 0
19 Plaintiffs employment with Samsung Research America, Inc. (“SRA”). There has been the
20 typical rounds of discovery, leading to Plaintiff filing a motion for spoliation of evidence and
21
Defendants filing a motion for summary judgment, or in the alternative, summary adjudication.
22
Following a hearing on these motions on August 25, 2020 the Court issued a fifty-six page Order|
23
24 on September 10, 2020 (the “Order”) addressing the Plaintiff's allegations in the operative fourth|
25 amended complaint (“FAC”). The Court recites in detail Plaintiffs allegations at pages two
26 through six of the FAC.
27
28
REFEREE’S PROPOSED ORDER RE: PLAINTIFF’S MOTION TO DISQUALIFY DEFENSE COUNSEL - |
Plaintiff's motions sought terminating sanctions as he does now, again grounded in CCP
§ 2023.030. The Court concluded in the Order that the sanctions sought by Plaintiff were not
authorized by the Civil Discovery Act, nor justified by the Court’s inherent power to control the
litigation. Order at 16 and 17. Therefore the Court, at page 27 of the Order, found “Defendants
presented undisputed material facts and substantial evidence” and denied the motion for
terminating sanctions and concurrently denied Plaintiff's request for attorneys’ fees.
Defendants’ motion for summary judgment or, alternatively summary adjudication, was
directed at every cause of action in the complaint. The Court denied the summary adjudication
10
motion as to the 4th through 14th causes of action and granted the motion as to the second, third
1
12 and 15th causes of action. Then, unsatisfied with this ruling, Plaintiff moved for reconsideration
13 of the Order as to three causes of action where he lost — the second, third, and fifteenth. On April
14
8, 2021 an order was filed denying the motion for reconsideration. Plaintiff appealed and, ina
15
one page ruling, the Court of Appeal affirmed the Order.
16
Which leads us to Plaintiff's three pending motions: again, a motion for terminating and
17
18 other sanctions pursuant to CCP§ 2023.030, a motion for sanctions pursuant to CCP §128.7, and
19 a motion to disqualify the firm of Morgan, Lewis & Bockius LLP from representing Defendants.
20
Il. INTRODUCTION
21
This motion to disqualify defense counsel is another attempt by Plaintiff to avoid reality —
22
that is, the Superior Court and the Court of Appeal have already ruled. Those decisions are clear
23
24 -- Plaintiff has lost essential claims brought in this case. Rather than accept those decisions
25 Plaintiff has initiated a round of accusations directed to both Defendants and their counsel. As
26
shown in multiple briefs and summarized in the Referee’s Proposed Orders on the issues of Code}
27
of Civil Procedure §128.7 and Terminating Sanctions, Plaintiff's attacks are failures. The instant
28
REFEREE’S PROPOSED ORDER RE: PLAINTIFF’S MOTION TO DISQUALIFY DEFENSE COUNSEL - 2
motion is a last gasp attack, this time directed at defense counsel, who are accused of forgery,
doctoring evidence, and sabotaging Plaintiff counsel’s computer. Enough is enough, It is time for
Plaintiff and his counsel to face reality.
Preview
170V318162 Santa Clara — Civil MORGAN, LEWIS & BOCKIUS LLP Electronically Filed Melinda S. Riechert, Bar No. 65504 by Superior Court of CA, 1400 Page Mill Road County of Santa Clara, Palo Alto, CA 94304 on 2/18/2022 12:32 PM Tel: +1.650.843.4000 Fax: +1.650.843.4001 Reviewed By: F. Miller melinda.riechert@morganlewis.com Case #17CV318162 Envelope: 8326486 Joseph R. Lewis, Bar No. 316770 One Market, Spear Street Tower San Francisco, California 94105-1596 Telephone: +1.415.442.1000 Facsimile: +1.415.442.1000 joseph.lewis@morganlewis.com Attorneys for Defendant SAMSUNG RESEARCH AMERICA, INC., PRANAV MISTRY, and SAJID SADI 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SANTA CLARA 13 14 JAWAHAR JAIN, an individual, Case No. 17CV318162 15 Plaintiff, DECLARATION OF JOSEPH R. 16 LEWIS IN SUPPORT OF IN SUPPORT vs. OF DEFENDANTS’ MOTION FOR 17 SANCTIONS PURSUANT TO SECTION SAMSUNG RESEARCH AMERICA, INC., a 128.7 REGARDING PLAINTIFF’S 18 California corporation; PRANAV MISTRY, an OBJECTIONS TO REFEREE’S individual; SAJID SADI, an individual; and PROPOSED ORDERS RE: 19 DOES | through 100, inclusive, PLAINTIFF’S MOTIONS FOR SANCTIONS AND TO DISQUALIFY 20 Defendants. DEFENDANTS’ COUNSEL 21 Dept.: 19 Trial Date: March 21, 2022 22 Date: TBD Time: TBD 23 24 25 26 27 28 MorGAN, LEWIS & DECLARATION OF JOSEPH R. LEWIS IN SUPPORT OF IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS Bockius LLP PURSUANT TO SECTION 128.7 REGARDING PLAINTIFF’S OBJECTIONS TO REFEREE’S PROPOSED ORDERS RE: ArrorNsys ar Law PLAINTIFF’S MOTIONS FOR SANCTIONS AND TO DISQUALIFY DEFENDANTS’ COUNSEL Suicon Vatey DB2/ 42473341.1 DECLARATION OF JOSEPH R. LEWIS I, Joseph R. Lewis, declare as follows: 1 Tam an associate with the law firm of Morgan, Lewis & Bockius LLP, counsel of record for Defendants Samsung Research America, Inc. (“SRA”), Pranav Mistry, and Sajid Sadi (together, “Defendants”) in this action. In my capacity as counsel of record for Defendants in this action, I have personal knowledge of the facts set forth in this declaration, and I could and would testify competently thereto if called upon to do so. 2 I make this Declaration in support of Defendants’ Motion for Sanctions Pursuant to Section 128.7 regarding Plaintiff's Objections To Referee’s Proposed Orders Re: Plaintiff's Motions for Sanctions and to Disqualify Defendants’ Counsel. 10 11 3 Attached hereto as Exhibit A is a true and correct copy of Judge Kleinberg’s Proposed Order regarding Plaintiff's for Terminating and Other Sanctions. 12 4 Attached hereto as Exhibit B is a true and correct copy of Judge Kleinberg’s 13 Proposed Order regarding Plaintiff's for Sanctions Pursuant to Section 128.7. 14 15 5 Attached hereto as Exhibit C is a true and correct copy of Judge Kleinberg’s Proposed Order regarding Plaintiff's to Disqualify Defendants’ Counsel. 16 17 6. In this single plaintiff case, Plaintiff has propounded hundreds of written discovery requests to each Defendant, taken nine depositions, filed several motions to compel, petitioned for 18 two writs to the Court of Appeal, brought two requests for terminating sanctions, and threatened a 19 federal class action lawsuit against Defendants’ counsel. 20 21 7 Attached hereto as Exhibit D is a true and correct copy of the Court’s Order regarding Defendants’ Motion for Summary Adjudication. 22 23 8 In hopes of resolving Plaintiffs forgery allegations without Court intervention, Defendants sent Plaintiff electronic versions of certain emails requested by Plaintiff to show that 24 no forgery occurred. 25 26 9 On June 22, 2021, Defendants provided Plaintiff with a letter from Tess Blair, the 27 Head of Morgan Lewis’s eData Practice Group, to explain that changes in the metadata of the 28 -l- MorGAN, LEWIS & DECLARATION OF JOSEPH R. LEWIS IN SUPPORT OF IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS, Bockius LLP PURSUANT TO SECTION 128.7 REGARDING PLAINTIFF’S OBJECTIONS TO REFEREE’S PROPOSED ORDERS RE: ArrorNeys ar Law PLAINTIFF’S MOTIONS FOR SANCTIONS AND TO DISQUALIFY DEFENDANTS’ COUNSEL Suicon Vatey DB2/ 42473341.1 digital emails that Defendants produced is not evidence of “forgery,” but rather, the natural result of how the emails were collected and produced in this case. Attached hereto as Exhibit E is a true and correct copy of Blair’s correspondence. 10. Also, before Plaintiff filed any of his Motions, on July 16, 2021, Defendants provided Plaintiff with a Declaration from Melinda Riechert, the lead counsel on this case, which contained a step-by-step explanation of how Defense counsel received certain emails from Defendant (which Plaintiff alleges were forged), how the emails were saved, and how they were produced. Attached hereto as Exhibit F is a true and correct copy of Riechert’s Declaration. 11. Plaintiff did not substantively respond to the questions in Blair’s letter or the 10 points in Riechert’s declaration. Instead, he filed a Motion to Disqualify Morgan, Lewis & 11 Bockius LLP as Defendants’ Counsel on July 27, 2021 and a Motion for Terminating and Other 12 Sanctions on July 28, 2021. Plaintiff also sent Defense Counsel a draft federal court complaint on 13 August 4, 2021. The draft complaint asserts the exact same, disproven allegations about hacking, 14 falsification, and fabrication that were already addressed in Blair’s June 22, 2021 letter and 15 Riechert’s July 16, 2021 declaration. The draft complaint is styled as a class action and purports 16 to assert claims on behalf of all opposing counsel and opposing parties in any litigation wherein 17 Morgan Lewis has served as counsel. The named defendants are Morgan Lewis, and three 18 Morgan Lewis lawyers individually, Riechert, Lewis and Blair. 19 12. To respond to Plaintiffs allegations, Defendants hired a well-regarded digital 20 forensic expert, Dan Regard. Defendants filed an Opposition to Plaintiff's Motion for 21 Terminating and Other Sanctions and submitted a declaration from Regard. 22 13. On September 30, 2021, Plaintiff moved for Sanctions Under to Section 128.7, 23 alleging fraud regarding Defendants’ Opposition to Plaintiff's Motion for Terminating Sanctions. 24 On October 4, 2021, this Court appointed Judge Kleinberg as a Referee to decide Plaintiff's three 25 Motions. 26 14, Defendants have provided the notice required to file this Motion for Sanctions 27 pursuant to Section 128.7(b). 28 ee MorGAN, LEWIS & DECLARATION OF JOSEPH R. LEWIS IN SUPPORT OF IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS Bockius LLP PURSUANT TO SECTION 128.7 REGARDING PLAINTIFF’S OBJECTIONS TO REFEREE’S PROPOSED ORDERS RE: ArrorNeys ar Law Suicon Vatey DB2/ 42473341.1 PLAINTIFF’S MOTIONS FOR SANCTIONS AND TO DISQUALIFY DEFENDANTS’ COUNSEL 15. Judge Kleinberg signed a Declaration stating that he reviewed all filings. Attached hereto as Exhibit G is a true and correct copy of Judge Kleinberg’s Declaration. 16. SRA’s counsel spent 42.9 hours responding to Plaintiff's Objections to the Proposed Orders issued by Judge Kleinberg. The partner Melinda Riechert spent 20.8 and the Associate Joseph Lewis spent 22.1 hours. Defendant spent an additional 30.6 hours preparing this motion. Riechert spent 1.8 hours and Lewis spent 28.8 hours. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on January 27, 2022 in San Francisco, California. 10 11 Riéaim 12 Joseph Lewis 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- MorGAN, LEWIS & DECLARATION OF JOSEPH R. LEWIS IN SUPPORT OF IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS Bockius LLP PURSUANT TO SECTION 128.7 REGARDING PLAINTIFF’S OBJECTIONS TO REFEREE’S PROPOSED ORDERS RE: ArrorNeys ar Law Suicon Vatey DB2/ 42473341.1 PLAINTIFF’S MOTIONS FOR SANCTIONS AND TO DISQUALIFY DEFENDANTS’ COUNSEL EXHIBIT A Hon. James P. Kleinberg (Ret.) JAMS 160 West Santa Clara Street, Suite 1600 San Jose, CA 95113 Tel: 408-288-2240 jkleinberg@jamsadr.com SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 JAWAHAR JAIN, Case No.: 17CV318162 ll JAMS Case No. 1110027614 Plaintiff, 12 13 vs. REFEREE’S PROPOSED ORDER RE: 14 SAMSUNG RESEARCH AMERICA, INC., PLAINTIFF’S MOTION FOR ET.AL., TERMINATING SANCTIONS PURSUANT 15 TO CCP SECTION 2023.030 Defendants 16 17 I HISTORY AND BACKGROUND 18 The following introduction precedes each of the three pending motions: 19 Because the three pending motions are interrelated it is useful to review the litigation 20 history. The suit was filed almost five years ago alleging fifteen causes of action all arising out off 21 Plaintiff's employment with Samsung Research America, Inc. (“SRA”). There has been the 22 typical rounds of discovery, leading to Plaintiff filing a motion for spoliation of evidence and Defendants filing a motion for summary judgment, or in the alternative, summary adjudication. 23 Following a hearing on these motions on August 25, 2020 the Court issued a fifty-six page Order| 24 on September 10, 2020 (the “Order”) addressing the Plaintiff’s allegations in the operative fourth! 25 amended complaint (“FAC”). The Court recites in detail Plaintiff's allegations at pages two 26 through six of the FAC, 27 Plaintiff's motions sought terminating sanctions as he does now, again grounded in CCP 28 § 2023.030. The Court concluded in the Order that the sanctions sought by Plaintiff were not PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 1 authorized by the Civil Discovery Act, nor justified by the Court’s inherent power to control the litigation. Order at 16 and 17. Therefore the Court, at page 27 of the Order, found “Defendants presented undisputed material facts and substantial evidence” and denied the motion for terminating sanctions and concurrently denied Plaintiff's request for attorneys’ fees. Defendants’ motion for summary judgment or, alternatively summary adjudication, was directed at every cause of action in the complaint. The Court denied the summary adjudication motion as to the 4th through 14th causes of action and granted the motion as to the second, third and 15th causes of action. Then, unsatisfied with this ruling, Plaintiff moved for reconsideration of the Order as to three causes of action where he lost — the second, third, and fifteenth. On April 8, 2021 an order was filed denying the motion for reconsideration. Plaintiff appealed and, in a 10 one page ruling, the Court of Appeal affirmed the Order. Il Which leads us to Plaintiff's three pending motions: again, a motion for terminating and 12 other sanctions pursuant to CCP§ 2023.030, a motion for sanctions pursuant to CCP §128.7, and 13 a motion to disqualify the firm of Morgan, Lewis & Bockius LLP from representing Defendants. Il. INTRODUCTION 14 15 This is another attempt by Plaintiff, through his counsel, to proceed with this case. The 16 Court, on September 10, 2020, granted summary adjudication on the claims for wrongful termination, retaliation, and unjust enrichment. See Order, Pages 27 and 30. Having essentially 17 lost the case in chief, Plaintiff has now shifted to another tack: attacking Defense counsel for 18 “forgery” and mishandling discovery over a two to three year period. Plaintiff's counsel has also 19 tried, by threatening a federal class action, to extort some payment from Defendants. The instant 20 motion is grounded in Code of Civil Procedure Section 2023.030 which provides: 21 “To the extent authorized by the chapter governing any particular discovery method or 22 any other provision of this title, the court, after notice to any affected party, person, or attorney, 23 and after opportunity for hearing, may impose the following sanctions against anyone engaging 24 in conduct that is a misuse of the discovery process: 25 (a) The court may impose a monetary sanction ordering that one engaging in the misuse 26 of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may 27 also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse 28 PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 2 of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. (c) The court may impose an evidence sanction by an order prohibiting any party 10 engaging in the misuse of the discovery process from introducing designated matters in evidence. iW (d) The court may impose a terminating sanction by one of the following orders: 12 (1) An order striking out the pleadings or parts of the pleadings of any party 13 engaging in the misuse of the discovery process. (2) An order staying further proceedings by that party until an order for discovery 14 is obeyed. 15 (3) An order dismissing the action, or any part of the action, of that party. 16 (4) An order rendering a judgment by default against that party. 17 (e) The court may impose a contempt sanction by an order treating the misuse of the 18 discovery process as a contempt of court. 19 (1) Notwithstanding subdivision (a), or any other section of this title, absent 20 exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a 21 party for failure to provide electronically stored information that has been lost, damaged, altered, 22 or overwritten as the result of the routine, good faith operation of an electronic information system, 23 (2) This subdivision shall not be construed to alter any obligation to preserve 24 discoverable information.” 25 Plaintiff has claimed he has retained a group of expert witnesses who have “confirmed 26 Samsung fabricated evidence in many respects.” This allegation is false. The cited reports say EY nothing of the kind because the email in question were not in “original” or “native” format.” To 28 PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 3 put this issue to rest, Samsung produced in “native format” a list of emails Plaintiff provided for the experts to analyze. Plaintiff asserted these documents could not be opened, so yet another set was sent. Plaintiff then raised yet another claim, that Defense counsel had “hacked” his computer. Samsung counsel Blair sent a letter to Plaintiff's counsel asking technical questions to resolve any issues. Instead of responding to that letter, Plaintiff's counsel filed the instant motion, coupled with the federal complaint which is styled as a class action against the Morgan Lewis firm, the lawyers from that firm who represent Samsung in this action, and on its face pertains to any litigation in which that firm has appeared. Til. ISSUES A, The manipulation of email 10 Experts from both sides were retained to determine whether emails provided in separate 1 sets were “manipulated” and not “true copies.” Morgan Lewis retained Dan Regard, an 12 electronic discovery and computer science consultant conversant in such issues for twenty years. 13 A significant conclusion reached by Mr. Regard is since the text of the documents was the same, there has been no forgery. The date any of the documents in question was created was not 14 altered. Further, Defendant did not alter the original production sequence. Plaintiffs counsel did 15 not respond in good faith to offers to resolve his “hacking” claims. 16 B. Security Badge Logs 17 Defendants’ key discovery here was that the door number in badge records increased 18 by1 digit with every entry. This was a simple typographical mistake as a result of Excel auto- 19 populating the number sequence. 20 C. Phone records 21 The phone records issue is a non-starter because the numbers are reciprocated. 22 D. Compliance with Motions to Compel Orders 23 In October 2018 the responses to Form Interrogatories were not complete. A review of Defendants’ compliance with the Discovery Order shows it was appropriate. If this information 24 was truly important it should not have taken Plaintiff almost three years to raise this issue. The 25 Second Order to compel of March 2019 was complied with, and the Plaintiff ignored that the key| 26 document in that dispute was, in fact produced on May 3, 2019. Defendants did not produce a 27 document Plaintiff himself had produced because they couldn’t locate it. In any event, this 28 PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 4 particular email was in Plaintiff's possession anyway. E. False representations in oral argument The record is clear both sides have not logged post-litigation emails and the reference to this subject in argument is not an issue. F. Revised version of the same document Defendants corrected a prior misstatement and produced two versions of a typewritten timeline. For two years Plaintiff took no action regarding this correction. G. Plaintiff's resurrected motion for spoliation On January 6, 2020 Plaintiff brought a sanctions motion based on the allegation that Defendants had failed to preserve various items of evidence. On September 10, 2020 the Court 10 denied that motion, finding that none of the items were particularly probative and/or were lost ll before the litigation became imminent. September 10, 2020 Order at 15-16. 12 H. Post-litigation email 13 Plaintiff's declaration does not identify which document was “never-before-disclosed.” I “Non-existent documents” 14 Letters of support for Plaintiff have not been produced because they haven’t been found. 15 And there was no performance review for Plaintiff for 2017 produced because there wasn’t any 16 since he was terminated in September of that year. 17 J, Deposition testimony 18 Mistry testified he “didn’t know, didn’t recall, or didn’t remember.” Evaluating that 19 testimony is for the trier of fact to determine. 20 K. Falla’s testimony 21 Plaintiffs complaints again are for the trier of fact to judge. But it is noteworthy that 22 Plaintiff's citations to the Falla transcript are inaccurate and do not bear out the accusations in the instant motion. 23 L. Sadi’s testimony 24 This is a semantical dispute, not worthy of sanctions. 25 IV. CONCLUSION 26 This motion should never have been brought. The obvious conclusion is that, having lost the 27 motion to have essential claims dismissed pursuant to the Court’s September 10, 2020 Order, 28 PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 5 Plaintiff—and, more precisely, his counsel — are using every procedural device to try and extort a payment by Defendants by threats. Although Defendants did not request compensation from Plaintiff or his counsel for having to respond to this ploy it would not be improper for such a sanction to be imposed. Plaintiffs motion should be denied. A Statement of Account for my services is attached hereto. Respectfully submitted, , 10 ll 12 oF VY Mer mn. James P. Kleinberg (Ret} Referee Pursuant to CCP§639 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 PROPOSED ORDER RE: SECTION 2023.030 SANCTIONS 6 EXHIBIT B Hon. James P. Kleinberg (Ret.) JAMS 160 West Santa Clara Street, Suite 1600 San Jose, CA 95113 Tel: 408-288-2240 jkleinberg@jamsadr.com SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA JAWAHAR JAIN, Case No.: 17CV318162 10 ll Plaintiff, JAMS Case No. 1110027614 12 vs. 13 SAMSUNG RESEARCH AMERICA, INC., 14 ET.AL,, REFEREE’S PROPOSED ORDER RE: 15 PLAINTIFF’S MOTION PURSUANT TO Defendants CCP SECTION 128.7 16 17 18 19 I HISTORY AND BACKGROUND 20 The following introduction precedes each of the three pending motions: Because the three pending motions are interrelated it is useful to review the litigation 21 history. The suit was filed almost five years ago alleging fifteen causes of action all arising out 22 of Plaintiff's employment with Samsung Research America, Inc. (“SRA”). There has been the 23 typical rounds of discovery, leading to Plaintiff filing a motion for spoliation of evidence and 24 Defendants filing a motion for summary judgment, or in the alternative, summary adjudication. 25 Following a hearing on these motions on August 25, 2020 the Court issued a fifty-six page 26 Order on September 10, 2020 (the “Order”) addressing the Plaintiff's allegations in the 27 28 PROPOSED ORDER RE SECTION 128.7 operative fourth amended complaint (“FAC”). The Court recites in detail Plaintiff's allegations at pages two through six of the FAC. Plaintiff's motions sought terminating sanctions as he does now, again grounded in CCP § 2023.030. The Court concluded in the Order that the sanctions sought by Plaintiff were not authorized by the Civil Discovery Act, nor justified by the Court’s inherent power to control the litigation. Order at 16 and 17. Therefore the Court, at page 27 of the Order, found “Defendants presented undisputed material facts and substantial evidence” and denied the motion for terminating sanctions and concurrently denied Plaintiff's request for attorneys’ fees. Defendants’ motion for summary judgment or, alternatively summary adjudication, was directed at every cause of action in the complaint. The Court denied the summary adjudication 10 motion as to the 4th through 14th causes of action and granted the motion as to the second, third] i and 15th causes of action. Then, unsatisfied with this ruling, Plaintiff moved for reconsideration! 12 of the Order as to three causes of action where he lost — the second, third, and fifteenth. On 13 April 8, 2021 an order was filed denying the motion for reconsideration. Plaintiff appealed and, in a one page ruling, the Court of Appeal affirmed the Order. 14 Which leads us to Plaintiff's three pending motions: again, a motion for terminating and 15 other sanctions pursuant to CCP§ 2023.030, a motion for sanctions pursuant to CCP §128.7, and 16 a motion to disqualify the firm of Morgan, Lewis & Bockius LLP from representing 17 Defendants. 18 IL. GOVERNING LAW 19 Section 128.7 of the California Code of Civil Procedure provides: 20 “(a) Every pleading, petition, written notice of motion, or other similar paper shall be 21 signed by at least one attorney of record in the attorney's individual name, or, if the party is not 22 represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise provided by law, pleadings need 23 not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless 24 omission of the signature is corrected promptly after being called to the attention of the attorney 25 or party. 26 (b) By presenting to the court, whether by signing, filing, submitting, or later 27 advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or 28 2 PROPOSED ORDER RE SECTION 128.7 1 unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable 10 opportunity for further investigation or discovery. 11 (4) The denials of factual contentions are warranted on the evidence or, if 12 specifically so identified, are reasonably based on a lack of information or belief. 13 (c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, 14 impose an appropriate sanction upon the attorneys, law firms, or parties that have 15 violated subdivision (b) or are responsible for the violation. In determining what 16 sanctions, if any, should be ordered, the court shall consider whether a party seeking 17 sanctions has exercised due diligence. 18 (1) A motion for sanctions under this section shall be made separately from other 19 motions or requests and shall describe the specific conduct alleged to violate subdivision! 20 (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed 21 with or presented to the court unless, within 21 days after service of the motion, or any 22 other period as the court may prescribe, the challenged paper, claim, defense, contention. allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court 23 may award to the party prevailing on the motion the reasonable expenses and attorney's 24 fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a 25 law firm shall be held jointly responsible for violations committed by its partners, 26 associates, and employees. 27 28 PROPOSED ORDER RE SECTION 128.7 (2) On its own motion, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b), unless, within 21 days of service of the order to show cause, the challenged paper, claim, defense, contention, allegation, or denial is withdrawn or appropriately corrected, (d) A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated. Subject to the limitations in paragraphs (1) and (2), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of 10 some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the 11 violation. 12 (1) Monetary sanctions may not be awarded against a represented party for a 13 violation of paragraph (2) of subdivision (b). (2) Monetary sanctions may not be awarded on the court's motion unless the 14 court issues its order to show cause before a voluntary dismissal or settlement of the 15 claims made by or against the party that is, or whose attorneys are, to be sanctioned. 16 (e) When imposing sanctions, the court shall describe the conduct determined to 17 constitute a violation of this section and explain the basis for the sanction imposed. 18 (f) In addition to any award pursuant to this section for conduct described in subdivision 19 (b), the court may assess punitive damages against the plaintiff upon a determination by the 20 court that the plaintiff's action was an action maintained by a person convicted of a felony 21 against the person's victim, or the victim's heirs, relatives, estate, or personal representative, for 22 injuries arising from the acts for which the person was convicted of a felony, and that the 23 plaintiff is guilty of fraud, oppression, or malice in maintaining the action. (g) This section shall not apply to disclosures and discovery requests, responses, 24 objections, and motions. 25 (h) A motion for sanctions brought by a party or a party's attorney primarily for an 26 improper purpose, such as to harass or to cause unnecessary delay or needless increase in the 27 cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the 28 4 PROPOSED ORDER RE SECTION 128.7 Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated. (i) This section shall apply to a complaint or petition filed on or after January 1, 1995, and any other pleading, written notice of motion, or other similar paper filed in that matter.” Case law considering Section 128.7 motions is explicit: “The purpose of Section 128.7 is to deter frivolous filings.” In re Marriage of Falcone & Fyke 164 Cal.App.4" 814,826 (2008) California case authority finds Rule 11 of the Federal Rules of civil Procedure to be persuasive authority. Guillemin y. Stein, 104 Cal.App.4 156,168 (2002). It is in this context Plaintiffs bases for this motion are without merit and this litigation ploy is, itself, sanctionable. Section (h), supra. 10 Til. PLAINTIFF’S ARGUMENTS AND DEFENDANTS’ RESPONSES 1 A “Hacking” allegations 12 Plaintiff's counsel (“ILG”) accused Morgan Lewis of hacking ILG’s email 13 system. Since the record is clear that ILG initiated the “hacking” allegations See, email from ILG to Morgan Lewis of June 2, 2021, letter from ILG to Morgan Lewis of June 3, 2021, email 14 from ILG to Morgan Lewis of June 23, 2021, letter from ILG to Morgan Lewis of July 6, 2021, 15 letter from ILG to Morgan Lewis of August 3, 2021. It was — and is — objectively reasonable 16 (and therefore not a violation of Section 128.7 ) for Defendants to make these allegations. 17 B Motion filing date 18 The “untimeliness” of Plaintiff's Motion for Terminating Sanctions does not equate to a 19 violation of Section 128.7 because the fact the filing date of July 28, 2021 was incorrectly stated 20 to be two days later, i.e., July 30, 2021, does not warrant Section 128.7 sanctions. This minor 21 date issue does not rise to a violation of Section 128.7. Cc “Forgery” oe ILG accused Morgan Lewis of forgery.' The context is critical here. The Superior Court 23 granted summary adjudication on Plaintiff's claims for wrongful termination, retaliation, and 24 25 26 ' “Forgery” is defined as follows: “The falsely making or materially altering, with intent to 27 defraud, any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.” Black’s Law Dictionary 28 5 PROPOSED ORDER RE SECTION 128.7 unjust enrichment, and Plaintiff's appeal of this ruling was unsuccessful, as decided by the Court of Appeal in one sentence, The forgery allegation is an attempt to undo the prior rulings on Plaintiff's claims, but in the light of the case history Section 128.7 does not apply. D. Citations to website ILG’s computer issues resulted in Defendants and their counsel being accused of violating Section 128.7 by identifying ILG’s email address in a data breach database. Defendants identifying third parties and other accounts that have been potentially compromised does not violate Section 128.7. E. Security badge records and Excel Security badge records were produced in a spreadsheet. misnumbered through an 10 automated Excel function. The incorrect computer-generated (via Excel) door numbers 1 produced were corrected. As such, this incident doesn’t equate to “forgery” or a violation of 12 Section 128.7. The issue of the badges’ accuracy pre-dated the motion for terminating sanctions 13 and this issue is not relevant to the pending motion. F. Email forgery 14 Plaintiff's expert reports do not bear out the accusation that Morgan Lewis modified 15 content in emails. In contrast to the pending motion’s allegations plaintiffs expert reports do 16 not make such a statement. Thus, no basis for sanctions pursuant to Section 128.7 exists on this 17 issue. 18 G. Vallbona citation 19 The Valibona citation by Defendants was essentially verbatim, supports the argument in 20 question and thus does not violate Section 128.7. 21 H. Date of performance review 22 Plaintiff mis-cited the date of the subject Performance Review, and it was reasonable for Defendants to refer to the Review for 2016, not 2014. This issue does not rise to a violation of 23 Section 128.7. 24 I Regard Report 25 The Declaration of Daniel Regard was cited in the Defendants’ Opposition, but was not 26 attached. When this was brought to Defendants’ attention it was submitted to counsel. 27 28 PROPOSED ORDER RE SECTION 128.7 Plaintiffs counsel had three months to consider the issue of this document. This is not a Section 128.7 violation. J. Email format In the Opposition to Plaintiff's Motion for terminating Sanctions explained why it was proper to initially produce PDF files. The format of emails in PDF is not irrelevant because this issue, raised by Plaintiff, needed a response. In any event this event does not rise to a Section 128.7 violation. K. “Native” copies of emails Plaintiff wanted “forensically sound” copies of emails and received files from Defendants that were native to Outlook and stored on servers since the beginning of the case. It 10 does not appear from the record that Plaintiff sought emails from SRA’s servers. In any event, i this issue does not rise to the level of a Section 128.7 violation. 12 L. Bates labeling 13 The issue of Bates labeling and metadata in the production of documents does not rise to a Section 128.7 violation. Plaintiffs losing Motion for Terminating Sanctions does not turn on 14 metadata. 15 M. Blair declaration 16 Tess Blair, a counsel for Defendants admitted to the bars of Pennsylvania and New 17 Jersey, submitted a declaration. The Court granted her pro hac vice application over Plaintiff 18 Counsel’s opposition. Section 128.7 does not apply to this circumstance and claiming that it 19 does adversely colors Plaintiff's Section 128.7 motion. 20 IV. CONCLUSION 21 The Referee finds the following paragraphs of Section 128.7 are especially pertinent to 22 this motion: (g) This section shall not apply to disclosures and discovery requests, responses 23 objections, and motions. 24 (h) A motion for sanctions brought by a party or a party's attorney primarily for an 25 improper purpose, such as to harass or to cause unnecessary delay or needless increase in the 26 cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the 27 28 PROPOSED ORDER RE SECTION 128.7 Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated, (emphasis supplied) It is significant that the underlying history shows this to be a third attempt by Plaintiff to reverse decisions of the Superior Court and the Court of Appeal denying his claims for wrongful termination and lost wages. It is worth noting that Plaintiff previously moved for terminating sanctions against Defendant Samsung Research America for the purported spoliation of evidence. That motion was denied by the Superior Court on September 9, 2020. It is apparent the instant motion directed at Samsung’s counsel is a similar attempt by Plaintiff. Here, Section (h) of 128.7 applies, and Defendant is entitled to recover the fees and costs incurred in opposing this motion. An application by Defendant for fees and costs may be 10 submitted if the Court approves this finding by the Referee. il Plaintiff's Motion should be denied. 12 A Statement of Account for my services is attached hereto. 13 14 DATED bauer ZA 2 22 15 16 Respectfully submitted, Pller 17 18 19 Hon. James P. Kleinberg (Ret.) Referee Pursuant to CCP §639 20 20 22 23 24 25 26 27 28 PROPOSED ORDER RE SECTION 128.7 EXHIBIT C Hon. James P. Kleinberg (Ret.) JAMS 160 West Santa Clara Street, Suite 1600 San Jose, CA 95113 Tel: 408-288-2240 jkleinberg@jamsadr.com SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA. JAWAHAR JAIN, Case No.: 17CV318162 JAMS Case No. 1110027614 Plaintiff, REFEREE’S PROPOSED ORDER RE: 10 PLAINTIFF’S MOTION TO DISQUALIFY Vs. DEFENSE COUNSEL i SAMSUNG RESEARCH AMERICA, INC., 12 ET.AL., 18 Defendants 14 I HISTORY AND BACKGROUND 15 The following introduction precedes each of the three pending motions: 16 Because the three pending motions are interrelated it is useful to review the litigation 17 18 history. The suit was filed almost five years ago alleging fifteen causes of action all arising out 0 19 Plaintiffs employment with Samsung Research America, Inc. (“SRA”). There has been the 20 typical rounds of discovery, leading to Plaintiff filing a motion for spoliation of evidence and 21 Defendants filing a motion for summary judgment, or in the alternative, summary adjudication. 22 Following a hearing on these motions on August 25, 2020 the Court issued a fifty-six page Order| 23 24 on September 10, 2020 (the “Order”) addressing the Plaintiff's allegations in the operative fourth| 25 amended complaint (“FAC”). The Court recites in detail Plaintiffs allegations at pages two 26 through six of the FAC. 27 28 REFEREE’S PROPOSED ORDER RE: PLAINTIFF’S MOTION TO DISQUALIFY DEFENSE COUNSEL - | Plaintiff's motions sought terminating sanctions as he does now, again grounded in CCP § 2023.030. The Court concluded in the Order that the sanctions sought by Plaintiff were not authorized by the Civil Discovery Act, nor justified by the Court’s inherent power to control the litigation. Order at 16 and 17. Therefore the Court, at page 27 of the Order, found “Defendants presented undisputed material facts and substantial evidence” and denied the motion for terminating sanctions and concurrently denied Plaintiff's request for attorneys’ fees. Defendants’ motion for summary judgment or, alternatively summary adjudication, was directed at every cause of action in the complaint. The Court denied the summary adjudication 10 motion as to the 4th through 14th causes of action and granted the motion as to the second, third 1 12 and 15th causes of action. Then, unsatisfied with this ruling, Plaintiff moved for reconsideration 13 of the Order as to three causes of action where he lost — the second, third, and fifteenth. On April 14 8, 2021 an order was filed denying the motion for reconsideration. Plaintiff appealed and, ina 15 one page ruling, the Court of Appeal affirmed the Order. 16 Which leads us to Plaintiff's three pending motions: again, a motion for terminating and 17 18 other sanctions pursuant to CCP§ 2023.030, a motion for sanctions pursuant to CCP §128.7, and 19 a motion to disqualify the firm of Morgan, Lewis & Bockius LLP from representing Defendants. 20 Il. INTRODUCTION 21 This motion to disqualify defense counsel is another attempt by Plaintiff to avoid reality — 22 that is, the Superior Court and the Court of Appeal have already ruled. Those decisions are clear 23 24 -- Plaintiff has lost essential claims brought in this case. Rather than accept those decisions 25 Plaintiff has initiated a round of accusations directed to both Defendants and their counsel. As 26 shown in multiple briefs and summarized in the Referee’s Proposed Orders on the issues of Code} 27 of Civil Procedure §128.7 and Terminating Sanctions, Plaintiff's attacks are failures. The instant 28 REFEREE’S PROPOSED ORDER RE: PLAINTIFF’S MOTION TO DISQUALIFY DEFENSE COUNSEL - 2 motion is a last gasp attack, this time directed at defense counsel, who are accused of forgery, doctoring evidence, and sabotaging Plaintiff counsel’s computer. Enough is enough, It is time for Plaintiff and his counsel to face reality.