Preview
1 Collin J. Vierra (State Bar No. 322720)
EIMER STAHL LLP
2 99 Almaden Blvd., Suite 600
San Jose, CA 95113-1605
3 Telephone: (408) 889-1668
4 Email: cvierra@eimerstahl.com
5 Attorney for Plaintiffs Robert Arntsen,
Mary Lee. Arntsen Family Partnership, LP,
6 Brian Christopher Dunn Custodianship
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF SAN MATEO
9
10 Robert Arntsen; Mary Lee; Arntsen Family Case No. 22-CIV-01148
Partnership, LP; and Brian Christopher Dunn
11 Custodianship; Date: August 4, 2023
12 Time: 9:00 A.M. PST
Plaintiffs, Dept. 21
13 v.
Hon. Robert D. Foiles
14 David M. Bragg; Silicon Valley Real Ventures
LLC; SVRV 385 Moore, LLC; SVRV 387 DECLARATION OF
15 Moore, LLC; Gregory J. Davis; Kevin Wolfe; COLLIN J. VIERRA
16 James Justesen; Paramont Woodside, LLC; IN SUPPORT OF MOTION TO
and Paramont Capital, LLC; COMPEL AND FOR SANCTIONS
17 AGAINST DEFENDANTS DAVID M.
Defendants. BRAGG AND SILICON VALLEY REAL
18 VENTURES, LLC
19
20
21
22
23
24
25
26
27
28
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 I, Collin James Vierra, attest as follows:
2 Background
1. I am over 18 years of age, of sound mind, and otherwise competent to make this
3
Declaration. I am not a party to this action.
4
2. I am an attorney at Eimer Stahl, LLP, and am Plaintiffs’ counsel of record in this
5 action.
6 3. I have met and conferred with opposing counsel about each of the issues that is a
7 subject of this motion (and have made many more efforts to meet and confer with him about these
8 issues, which efforts repeatedly were rejected, as described in further detail below). The IDC
Commissioner authorized Plaintiffs to bring this motion.
9
Plaintiffs’ Discovery Requests
10
4. Plaintiffs’ requests for production served on Bragg and SVRV to date are attached
11
as Exhibit A.
12 5. Plaintiffs’ special interrogatories served on Bragg and SVRV to date are attached
13 as Exhibit B.
14 6. Plaintiffs’ requests for admission served on Bragg and SVRV to date are attached
as Exhibit C.
15
7. Plaintiffs’ form interrogatories served on Bragg and SVRV to date are attached as
16
Exhibit D.
17
8. Bragg’s and SVRV’s objections and responses to Plaintiffs’ requests for production
18 served to date are attached as Exhibit E.
19 9. Bragg’s and SVRV’s objections and responses to Plaintiffs’ special interrogatories
20 served to date are attached as Exhibit F. Bragg and SVRV never responded to Plaintiffs’ sixth set
21 of special interrogatories, even after Plaintiffs sent multiple emails to Bragg’s counsel informing
him of Bragg’s and SVRV’s failure to respond, and instructing them to do so.
22
10. Bragg’s and SVRV’s objections and responses to Plaintiffs’ requests for admission
23
served to date are attached as Exhibit G.
24 11. Bragg’s and SVRV’s objections and responses to Plaintiffs’ form interrogatories
25 served to date are attached as Exhibit H.
26 Bragg’s and SVRV’s Documents
27 12. During the first thirteen months of this litigation, Plaintiffs obtained thousands of
responsive documents that were in Bragg’s and SVRV’s possession that Bragg and SVRV
28
2
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 withheld from Plaintiffs, including text messages, contracts, financial records, email
2 communications, and more. Bragg and SVRV continue to withhold numerous responsive
documents from Plaintiffs. Plaintiffs have obtained responsive documents in Bragg’s and SVRV’s
3
possession from Genesis bank (the senior lender for the Moore Road Project), Colleen Marchbank
4
(Bragg’s co-broker for the Project), First Republic Bank (the bank for the Moore Road LLCs),
5 Bank of America (the bank for SVRV from which Bragg and SVRV made expenditures for the
6 Moore Road Project), Kurtis Kludt (Bragg’s former co-director of SVRV and former co-defendant
7 in this litigation), Lukas Leuthold (Bragg’s former employee who worked on the Moore Road
8 Project), Rich Bragg (Bragg’s brother), the Paramont Defendants, and others. In fact, every time
Plaintiffs have subpoenaed a third party, that party has produced documents that were in Bragg’s
9
and/or SVRV’s possession that they were withholding (a fact I have raised repeatedly with Bragg’s
10
counsel, see Exhibit N). Among the documents that Plaintiffs obtained from third parties that
11
Bragg and SVRV withheld are:
12 a. financial ledgers showing that Bragg labeled certain personal expenditures made
13 from SVRV’s corporate accounts as part of Bragg’s “Pot of Gold”;
14 b. a cap table for the SVRV 631 Beach project indicating that Bragg used Bob’s and
Martha’s short-term loans to the Moore Road Project for the SVRV 631 Beach
15
project;
16
c. financial statements in which Bragg told banks that SVRV’s corporate assets
17
belonged to him personally;
18 d. text messages with Bragg’s co-director indicating that Bragg’s co-director
19 suspected Bragg may have made “falsehoods” to Plaintiffs (see Vierra Decl. (Mar.
20 21, 2023), Ex. Y); these messages were not produced by Bragg’s co-director until
21 after he settled with Plaintiffs in November 2022;
e. tax returns for the Moore Road LLCs;
22
f. purported “contracts” that Bragg drafted for Plaintiffs articulating unauthorized
23
uses of their money that were never presented to Plaintiffs and/or signed by them;
24 g. an email showing that a vendor threatened to put a lien on the Moore Road
25 properties due to Bragg’s failure to pay for services rendered;
26 h. a project budget and timeline that Bragg drafted for the Moore Road Project that
27 was not followed; and
i. thousands more responsive and material documents and communications.
28
3
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 13. Text messages obtained from third parties reveal that Bragg is a prolific texter, even
2 though he produced zero text messages in this litigation. That includes hundreds of text messages
produced by Colleen Marchbank and the Paramont Defendants with Bragg, including in which
3
Bragg discussed Plaintiffs’ contributions to the Moore Road Project, and myriad failures with the
4
Moore Road Project.
5 14. Many of Bragg’s and SVRV’s responsive documents are located in Bragg’s SVRV
6 Google account (d@realsv.com)—both in Gmail and in Google Drive. These documents could
7 have been shared with Plaintiffs with the click of a button—and throughout 2022, Plaintiffs
8 repeatedly offered to download, process, host, Bates-stamp, and circulate these documents to the
remaining parties to this litigation at Plaintiffs’ expense if Bragg and SVRV simply provided
9
Plaintiffs access to the documents. Bragg and SVRV refused to grant Plaintiffs access to these
10
documents until April 26, 2023 (after the IDC Commissioner required them to meet-and-confer
11
with Plaintiffs in person, or otherwise would have authorized Plaintiffs to file an immediate motion
12 to compel), even though Bragg and SVRV were first served with discovery in May 2022. Bragg
13 and SVRV eventually provided Plaintiffs access to these documents by giving them login
14 credentials—proving that these documents could have been made available to Plaintiffs in seconds
any time during the preceding eleven months. Bragg and SVRV simply refused to produce them.
15
15. Prior to granting Plaintiffs access to these documents, Bragg and SVRV repeatedly
16
falsely asserted that Plaintiffs already had access to all responsive documents. For example, on
17
July 6, 2022, Bragg wrote to me, “Your clients have all the same access to the Google Drive that
18 I have.” (See Vierra Decl. (July 13, 2022), Ex. S.) That was false.
19 16. As another example, after producing a small number of documents on August 29,
20 2022 (after Plaintiffs filed a motion to compel and for sanctions), Bragg and SVRV falsely
21 “represented” to Plaintiffs that these documents “represented either everything or close to
everything related to the Moore Road project that would be responsive to your document requests.”
22
(Reply ISO MTC (Sept. 9, 2022), at 9–10.) But that was not even close to true; Bragg’s SVRV
23
Google account contains at least hundreds of responsive documents that were not included in this
24 “production.”
25 17. As yet another example, on the parties’ March 23, 2023 phone call (only the second
26 phone call I was able to obtain with Bragg’s state-court counsel, Mr. Van Steenis, in over a year
27 of litigation), Mr. Van Steenis expressed his belief that Bragg and SVRV had already provided
Plaintiffs access to Bragg’s SVRV Google account. (Vierra Decl. (May 19, 2023), Ex. K.) But
28
4
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 they obviously had not, which I told Mr. Van Steenis.
2 18. Then, on April 17, 2023, Bragg and SVRV falsely told the IDC Commissioner that
“any documents Bragg is aware of on the Google Drive that pertained to the Moore Road project
3
has been provided to Plaintiffs, including full access editing rights to their counsel.” (Exhibit L.)
4
That was also false.
5 19. Bragg and SVRV still have not provided Plaintiffs access to other SVRV Google
6 accounts that contain responsive documents. For example, they have not provided access to
7 Whitney Pine’s or Celeste Rogers’s accounts (each of whom did accounting for the Moore Road
8 Project). Counsel for the bankruptcy trustee in Bragg’s chapter 7 action recently send Bragg a
subpoena seeking tax and other accounting documents that Bragg has not disclosed in that action,
9
either.
10
20. Moreover, even though Bragg’s and SVRV’s former employee, Lukas Leuthold,
11
told Plaintiffs in September 2022 that there were numerous responsive documents in his old SVRV
12 Google account, Bragg and SVRV refused to make those documents available to Plaintiffs.
13 Leuthold was locked out of his account and only the administrator (i.e., Bragg/SVRV) could access
14 the files. But they refused to do so. A true and correct copy of an October 2022 email I sent to
Bragg’s and SVRV’s counsel (to which he never responded) seeking cooperation in obtaining
15
access to Leuthold’s SVRV Google account is attached as Exhibit K. Bragg and SVRV evidently
16
did not share Leuthold’s password with him until April 2023. Bragg and SVRV still did not share
17
that information with Plaintiffs, but Leuthold, instead, ultimately shared it with Plaintiffs in April
18 2023.
19 21. In May 2023, Bragg also produced a small number of documents from his personal
20 Gmail account. Although prior to then, Bragg repeatedly denied that there were any documents in
21 his personal Gmail or Google Drive accounts that were not also in his SVRV Gmail or Google
Drive accounts, this also was false, again as proven by third-party discovery. This production did
22
not include any files from Google Drive, as opposed to Gmail, yet Bragg still has falsely asserted
23
that he ran search terms and produced all responsive documents from his personal Google Drive
24 account, as well.
25 22. Moreover, when Bragg did produce some documents from this Gmail account, his
26 production was, once again, woefully insufficient. He used patently inadequate search parameters,
27 did not even produce all emails that should have hit on those parameters, did not produce many
attachments, did not search Cc or Bcc fields, and more. He also evidently did not even attempt to
28
5
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 search his personal Google Drive account for responsive documents, even though it appears that
2 he mostly used his personal Google Drive account—rather than his SVRV Google Drive account—
for business. A true and correct copy of a letter I wrote to Mr. Van Steenis detailing some of these
3
(and other) deficiencies is attached as Exhibit P. I noted many of these same deficiencies for Mr.
4
Van Steenis in September 2022, after Bragg’s provision of a small number of documents on August
5 29, 2022 (after Plaintiffs filed their previous motion to compel), but these deficiencies were never
6 corrected. A true and correct copy of that email is attached as Exhibit R. Worse, while Bragg
7 continues to falsely assert he has produced all responsive documents from his personal Google
8 Drive account, I have been able to determine via Google Drive activity logs that on June 6, 2023,
Bragg, using his personal account, removed a clearly-responsive document called “Moore funds
9
overview” from a folder called “Accounting Moore Rd” to which Bragg’s co-defendant granted
10
Plaintiffs access. He did the same thing in removing what seems to be a draft Moore Road contract
11
with Plaintiff Bob Arntsen from a folder called “Robert (Bob) Arntsen.” Therefore, these formerly
12 accessible, indisputably responsive documents are newly inaccessible to Plaintiffs because of
13 Bragg’s conduct. In other words, even where third parties provided Plaintiffs access to responsive
14 documents that Bragg has withheld for more than a year, Bragg is now undoing the third parties’
work and preventing Plaintiffs from viewing these documents.
15
Bragg’s and SVRV’s Counsel’s Refusals to Speak by Phone or to Meet and Confer
16
23. Bragg’s and SVRV’s counsel has expressly indicated on multiple occasions
17
throughout this litigation that he refused to speak with me by phone. For example, on August 24,
18 2022, after I informed Mr. Van Steenis that Bragg had contacted Plaintiffs, Mr. Van Steenis
19 responded, “Re: Mr. Bragg. I’ve advised him that we will only deal with you and your clients in
20 writing.” A true and correct copy of this email is attached as Exhibit Y. As another example, on
21 September 16, 2022, I invited Mr. Van Steenis (again) to meet and confer and opened up a
conference line, but Mr. Van Steenis did not join. I informed him I would open up the conference
22
line again later that day so that we could meet and confer. Mr. Van Steenis demanded that “[i]f
23
Plaintiffs wish to meet and confer telephonically,” another attorney from my firm would have to
24 join (even though I am Plaintiffs’ sole counsel of record), or “[a]lternatively, we can record the
25 conversation.” He continued, “If that is not possible, then I revert back to the previous position to
26 only deal with you in writing.” I responded that Mr. Van Steenis was “welcome to record the
27 conversation if you would like.” But then he immediately revoked the offer again, saying, “Bragg’s
and SVRV’s meet and confer efforts will be limited to writing.” A true and correct copy of that
28
6
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 correspondence is attached as Exhibit X. As a third example, on the parties’ initial IDC, Mr. Van
2 Steenis said that I could sit down with Bragg to obtain responsive documents from Bragg’s Google
Drive accounts. But after the IDC concluded, Mr. Van Steenis immediately revoked the offer and
3
referred to his “stated position of only dealing with you in writing.” He also said that “we’d have
4
to figure out a way to create a record of such a meeting should it occur.” I immediately offered
5 that the whole meeting could be recorded via Zoom “with video and audio,” but Mr. Van Steenis
6 still refused. A true and correct copy of that correspondence is attached as Exhibit V. As a fourth
7 example, in advance of the parties’ second IDC, I invited Mr. Van Steenis to meet and confer
8 regarding the parties’ discovery dispute. Mr. Van Steenis responded, “[T]o reiterate my position
to only deal with you in writing, you are welcome to email me at any time”—even though he had
9
not responded to numerous of my prior emails. Even after I protested that “it is rather inconvenient
10
to keep spelling out these issues in writing, and as I have said before, you are welcome to record
11
any oral conversations,” Mr. Van Steenis still refused to speak by phone. A true and correct copy
12 of this correspondence is attached as Exhibit J.
13 24. Before March 2023, I was able to obtain a single phone call with Mr. Van Steenis,
14 which took place on July 18, 2022, well after Bragg was already in default and had refused to
respond to discovery. On that call, Mr. Van Steenis claimed Bragg would begin providing
15
discovery, but Bragg did not. I tried to follow up with Mr. Van Steenis via email, but he did not
16
respond to me until I said that if he did not, I would seek sanctions against him. A true and correct
17
copy of that email thread is attached as Exhibit T. Despite that, I have offered to meet and confer
18 with Mr. Van Steenis more than a dozen times about Bragg’s and SVRV’s discovery obligations.
19 Mr. Van Steenis refused to respond to dozens of my emails during the past year, including
20 numerous invitations to meet and confer.
21 25. Another such example is that after the Court issued the tentative ruling in
September 2022 denying Plaintiffs’ prior motion to compel for lack of an IDC, I wrote to Mr. Van
22
Steenis, “Plaintiffs will not contest the Court’s tentative ruling. Given that you have indicated your
23
availability at 9am PST tomorrow” (Mr. Van Steenis had filed a notice of intent to appear at the
24 hearing on the motion to compel scheduled for 9am PST the following morning) “I suggest that
25 we meet and confer at that time to see if we can narrow the issues in dispute before the September
26 27, 2022 IDC.” I then provided a summary of issues to be discussed. Mr. Van Steenis refused to
27 join the call, and despite having filed his notice of intent to appear at the hearing, claimed that he
was unavailable at that time. I tried to arrange another meet-and-confer for the following Monday,
28
7
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 but Mr. Van Steenis refused to join that call, as well.
2 26. Mr. Van Steenis has refused to respond to literally dozens of emails throughout this
litigation. The full extent of these refusals is too voluminous to describe in this declaration.
3
Approximately forty such examples are described in Plaintiffs’ August 25, 2022 motion to compel
4
at pages 14–17. This practice only continued after that filing. To take just one example that has
5 been particularly prejudicial, on September 22, 2022, Plaintiffs proposed a set of search parameters
6 that should be used as a starting point for Bragg’s and SVRV’s productions. Mr. Van Steenis said
7 he would “discuss with [his] client.” But Bragg and SVRV never provided a substantive response
8 (nor produced any text messages). A true and correct copy of that email thread is attached as
Exhibit N. Several days ago (eight months after the fact), I received an email from Mr. Van Steenis
9
that inaccurately described Plaintiffs’ search parameters and claimed that Bragg had run certain
10
other terms, which (a) are inadequate, and (b) third-party productions prove he did not even run
11
properly (if at all). Instead, based on Bragg’s recent, small production, when he recently searched
12 his personal Gmail account for responsive documents, he did not even purport to search for
13 Plaintiffs’ names, “Bob,” “Martha,” and “Mary”; the name of the real estate project at the heart of
14 this litigation, “Moore”; the name of the senior lender for the project, “Genesis”; etc. Mr. Van
Steenis also continues to let Bragg self-collect documents. At the parties’ last IDC, Mr. Van Steenis
15
maintained that self-collection was acceptable, even though the Commissioner raised at the parties’
16
prior IDCs that it was not under the circumstances (even before Bragg’s spoliation of text messages
17
came to light, which only strengthened the force of the Commissioner’s admonition). A true and
18 correct copy of a letter in which I raised these issues is attached as Exhibit P.
19 IDC
20 27. Plaintiffs’ IDC letter briefs to date are attached as Exhibit I. The IDC
21 Commissioner’s minute orders, and certain other correspondence from the IDC Commissioner,
relating to the parties’ dispute are attached as Exhibit AA.
22
28. Despite the parties being ordered to submit IDC letter briefs by specific dates on
23
three separate occasions prior to this month, Bragg and SVRV violated each of those orders.
24 29. The parties were ordered to submit their letter briefs for the September 27, 2022
25 IDC by September 11, 2022. Bragg and SVRV did not submit theirs until September 22, 2022. In
26 that letter, Bragg and SVRV requested that the IDC be taken off the calendar “until the parties
27 have exhausted all meet and confer obligations,” even though they had refused to speak by phone
or to respond to numerous of Plaintiffs’ emails for months. Their letter brief is attached as Exhibit
28
8
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 O.
2 30. The parties were ordered to submit their letter briefs for the October 27, 2022 IDC
by October 24, 2022. Although Bragg filed a notice of stay of proceedings as to himself one
3
business day before this due date, he did not at that time claim a stay of proceedings as to SVRV.
4
Yet SVRV never submitted an IDC letter brief.
5 31. When the bankruptcy court lifted the stay, Plaintiffs immediately sought to put the
6 IDC back on the calendar. Mr. Van Steenis took six days to confirm his availability. The parties
7 were ordered to submit their letter briefs for the April 20, 2022 IDC by March 8, 2022. Yet Bragg
8 and SVRV did not submit their letter brief until April 17, 2023, despite falsely insinuating on
March 21, 2023 that they had already done so. Bragg’s and SVRV’s letter brief is attached as
9
Exhibit L. The parties held their final IDC on June 7, 2023. Plaintiffs submitted a further letter
10
brief raising numerous issues to which Bragg and SVRV did not even respond (Exhibit I). At the
11
IDC, the Commissioner authorized Plaintiffs to bring this motion to address issues with spoliation,
12 withheld documents and the impropriety of Bragg’s and SVRV’s self-collection, and otherwise
13 insufficient responses to Plaintiffs’ requests for production, special interrogatories, and requests
14 for admission.
Bragg’s and SVRV’s Bad-Faith Offers and Further Meet-and-Confer Obstruction
15
32. In advance of the parties’ September 27, 2022 IDC, Mr. Van Steenis said that if
16
“Plaintiffs wish[ed] to meet and confer telephonically,” they could do so if “we can record the
17
conversation.” I responded that Mr. Van Steenis was “welcome to record the conversation if you
18 would like.” But even with this permission, he refused to speak by phone for the next six months.
19 (Exhibit X.)
20 33. At the parties’ September 27, 2022 IDC, Mr. Van Steenis said I could sit down with
21 Bragg in person to look through his Google accounts and identify responsive documents. Because
of this offer, Plaintiffs agreed to continue the IDC to October 27, 2022 rather than immediately
22
filing a motion to compel. After the IDC, I immediately followed up on this offer, even saying that
23
I would drive to San Mateo (or elsewhere) to meet with Bragg in person to do this. Mr. Van Steenis
24 then said this offer was “rejected” and that because he would “only deal[] with [me] in writing,
25 we’d have to figure out a way to create a record of such meeting should it occur.” I said that the
26 whole meeting could be recorded via Zoom with video and audio. But Bragg and SVRV still
27 refused to follow through on the offer. (Exhibit V.)
34. My second phone call with Mr. Van Steenis did not occur until March 23, 2023,
28
9
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 following Bragg’s and SVRV’s second default in this action (and third default, including in the
2 bankruptcy court). On that call, he reiterated that I could arrange a meeting with Bragg to discuss
his discovery obligations. But Bragg and SVRV refused to follow upon that offer. On that same
3
call, Mr. Van Steenis claimed he was under the impression that Bragg had already provided
4
Plaintiffs access to Bragg’s SVRV Google account, even though Bragg plainly had not (and,
5 indeed, had not provided any further discovery in the preceding six months, in state or federal
6 court). Bragg and SVRV did not dispute that the documents in that account were responsive to
7 Plaintiffs’ discovery requests. (Nor have they ever disputed that they withheld, and then spoliated,
8 all responsive text messages from Plaintiffs.) Bragg and SVRV did not produce any documents
following that call until April 26, 2023 (after the parties’ next IDC). On the same call, Bragg and
9
SVRV took the position that the bankruptcy court’s lifting of the stay in the adversary proceeding
10
somehow limited discovery in this case. Also on that call, Mr. Van Steenis said that Bragg had
11
instructed him not to speak with Plaintiffs’ counsel by phone during the preceding eight months.
12 35. On that call, Bragg and SVRV also acknowledged that they had not yet submitted
13 a letter brief for the April 20, 2023 IDC. A true and correct copy of my summary of the parties’
14 March 23, 2023 call, and Bragg’s and SVRV’s response to it, is attached as Exhibit S.
Bragg’s and SVRV’s Failure to Respond to Plaintiffs’ Concerns in Advance of the
15
Second IDC
16
36. In advance of the October 27, 2022, IDC, I wrote to Mr. Van Steenis again to ask
17
him to “[p]lease confirm if and when Bragg (as always, used to refer to both Bragg and SVRV)”
18 would fulfill his discovery obligations, including by producing documents, providing written
19 discovery responses, and producing a privilege log. I also emphasized again my desire to discuss
20 Bragg’s and SVRV’s discovery obligations by phone or in person. Mr. Van Steenis refused to
21 address these issues by phone or in person, and instead of providing any substantive response to
Plaintiffs’ contentions, merely said he would “forward the bullet points below to Mr. Bragg.” Yet
22
Plaintiffs never received a response (and still have not). (Exhibit J.)
23
The Parties’ April 26, 2023 Meet-and-Confer
24 37. At the parties’ April 20, 2023 IDC, the Commissioner said he would delay
25 authorizing Plaintiffs to bring a motion to compel if Bragg and SVRV agreed to meet-and-confer
26 with Plaintiffs in-person to provide outstanding discovery. Plaintiffs promptly emailed Bragg and
27 SVRV and asked them to provide all outstanding discovery in advance of the meeting so that the
parties could discuss any remaining issues at the meeting. Bragg and SVRV did not respond. A
28
10
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 true and correct copy of my email is attached as Exhibit Q. At the meet-and-confer, apart from
2 finally providing access to Bragg’s SVRV Google account, Bragg and SVRV did not provide any
further discovery (documents or written discovery). Plaintiffs therefore had to voice the same
3
concerns they had been expressing for the past eleven months, to which Bragg and SVRV had
4
refused to respond. At the meet-and-confer, Bragg and SVRV claimed they would provide
5 additional responses after the meeting, but they refused to provide any date by which they would
6 do so. They still have not provided any responses. At the parties’ last IDC held on June 7, 2023,
7 Mr. Van Steenis said he had intended to provide written responses by June 14, 2023—in other
8 words, at the last possible minute before Plaintiffs intended to bring this motion. That, again, is
unacceptable, purposeful delay. Those responses were due in mid-2022. At the parties’ last IDC,
9
the Commissioner agreed that Bragg and SVRV should have been prepared to resolve these issues
10
at the April 26, 2023 meet-and-confer—but they were not.
11
38. At this meeting, Bragg also confirmed that he intentionally spoliated all of his text
12 messages in 2023 without ever having produced a single text message. He said that in 2023, he
13 traded in his old phone to receive a discount on a new one, and took no steps to preserve any of
14 his text messages. Mr. Van Steenis claimed he would reach out to a vendor to see if Bragg’s text
messages could be recovered, but prior to the parties’ final IDC on June 7, 2023, Mr. Van Steenis
15
never sent Plaintiffs any update indicating he had even attempted to recover Bragg’s spoliated text
16
messages. On the parties’ final IDC, Mr. Van Steenis said he had been told the messages could not
17
be recovered. He did not contest that Bragg had spoliated his text messages or that this spoliation
18 was improper.
19 39. Bragg and SVRV have never produced any text messages in this litigation, and now
20 never will due to this spoliation.
21 40. I sent Mr. Van Steenis a summary of our April 26, 2023 meet-and-confer promptly
after it occurred. He did not respond for two weeks. A true and correct copy of my correspondence,
22
and his response, is attached as Exhibit K to my May 19, 2023 declaration. I followed up with Mr.
23
Van Steenis via another letter on May 18, 2023. Mr. Van Steenis never responded. A true and
24 correct copy of that letter is attached as Exhibit L to my May 19, 2023 declaration.
25 41. A true and correct copy of a September 2022 email thread in which I asked Mr.
26 Van Steenis to confirm that Bragg had not spoliated any additional evidence is attached as Exhibit
27 R. Mr. Van Steenis never responded to the September 19, 2022 message. A true and correct copy
of another email I sent to Mr. Van Steenis about this issue on September 27, 2022 is attached as
28
11
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 Exhibit W.
2 Plaintiffs’ Prejudice in Depositions from Bragg’s and SVRV’s Withholding of
Responsive Documents and Discovery
3
42. Plaintiffs were supposed to sit for depositions by the Paramont Defendants in early-
4
to-mid May 2023, but these were postponed because Bob suffered a stroke about a week before
5 his deposition. Mary also suffered a stroke in August 2022.
6 43. Plaintiffs took the Paramont Defendants’ depositions in late May 2023. They had
7 to do so without the benefit of full discovery from Bragg and SVRV. This was enormously
8 prejudicial, both because Plaintiffs lacked a full factual record, and because the Paramont
Defendants, as a matter of policy, did not retain attachments to emails. Therefore, when the
9
Paramont Defendants exchanged emails and attachments with Bragg and/or SVRV, in many cases,
10
only Bragg and/or SVRV possesses those attachments. Plaintiffs therefore could not use certain
11
attachments in these depositions at all, and in other cases, the Paramont Defendants lodged
12 foundational objections to certain documents because even when Bragg and SVRV have belatedly
13 produced certain documents in this litigation, they have not Bates-stamped a single document in
14 this case. Bragg still has not produced many of these emails and attachments—as proven by the
emails provided by the Paramont Defendants—even while continuing to assert that he has.
15
Bragg’s and SVRV’s Failure to Retain Correspondence or Productions in this
16
Litigation
17
44. After Mr. Van Steenis left his previous firm in 2022, I asked him to confirm he had
18 retained the case file for this litigation. After a delay, he assured me that he did. But at the parties’
19 April 26, 2023 meet-and-confer, he revealed he had not. This included that he had not even
20 preserved Bragg’s and SVRV’s files that Plaintiffs had Bates-stamped and circulated to
21 Defendants (including Bragg and SVRV) at Plaintiffs’ expense in September 2022. Plaintiffs
provided these documents to Mr. Van Steenis again at their expense in May 2023, but Mr. Van
22
Steenis did not even download them. This demonstrates that Bragg and SVRV never had any intent
23
to litigate this case on the merits; they intended to escape their obligations through the bankruptcy
24 process. (See Vierra Decl. (May 19, 2023), Ex. L.)
25 Bragg’s and SVRV’s Litigation History
26 45. I have reviewed filings in numerous lawsuits where Bragg was a party dating back
27 to at least 2009. For example, Bragg also declared bankruptcy in 2009, but his initial petition for
bankruptcy was dismissed. There, the trustee noted inaccuracies in Bragg’s bankruptcy petition.
28
12
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 46. SVRV (and SVRV’s affiliated LLCs) have been regular defendants in California
2 state courts, as well. For example, Bragg and SVRV were sued by their former employee, Richard
Crevelt, in 2019 for failure to repay a $250,000 loan. (FAC ¶ 101.) As another example, Bragg
3
and SVRV faced a dispute with investors in SVRV’s Central LAH Project at least by mid-2021.
4
Certain of those investors, like Plaintiffs, also accused Bragg of presenting different investors with
5 contradictory operating agreements. A letter from the law firm LPS Law summarizing some of
6 these accusations is attached as Exhibit Z. Bragg’s and SVRV’s attorney in this action, Mr. Van
7 Steenis, represented Bragg and SVRV in the Central LAH dispute, which was subject to arbitration
8 at least as of March 2022 (around the time this action was filed). In addition to Mr. Van Steenis,
Bragg and SVRV have been represented by multiple, highly-credentialed attorneys during the past
9
few years, including attorneys with decades of experience and law degrees from the likes of
10
Stanford Law School. Based on the filings and communications I have reviewed, it appears that
11
Bragg and SVRV have been involved in litigation (and/or arbitration) continuously since at least
12 2019.
13 47. Plaintiffs threatened Bragg and SVRV with this litigation in spring 2021. A true
14 and correct copy of an email from Plaintiff Bob Arntsen to Bragg is attached as Exhibit M. When
Plaintiffs initiated this action, they served Bragg and SVRV (by multiple means) with a legal hold
15
notice, as well, which Bragg and SVRV do not dispute they received. An example of one of those
16
legal hold notices is attached as Exhibit U.
17
48. Plaintiffs initiated their adversary proceeding against Bragg in the federal
18 bankruptcy court on December 22, 2022. The parties were promptly instructed to hold a discovery
19 conference and to make initial disclosures. Despite my efforts, Bragg’s counsel refused to engage
20 in a proper discovery conference. Bragg also never produced a single document (despite asserting
21 that his initial disclosures were complete). Bragg initially was represented by at least two attorneys
in connection with his Chapter 7 petition (neither one of whom ever spoke with me by phone,
22
despite my efforts), and then was represented by new counsel in connection with responding to
23
Plaintiffs’ adversary proceeding complaint (who is now his counsel both in the adversary
24 proceeding action and in the underlying Chapter 7 action).
25 Plaintiffs’ Costs in Responding to Bragg’s and SVRV’s Discovery Abuses
26 49. I have reviewed my time entries from the past year, and multiplied the time spent
27 responding to Bragg’s and SVRV’s discovery abuses by my billing rate at each such time. I am
representing Plaintiffs on contingency in this matter. I excluded all time drafting Plaintiffs’ prior
28
13
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 motions to compel and associated documents. Where time was evenly spent in relation to Bragg,
2 SVRV, and Kludt (who settled with Plaintiffs in 2022), I attributed a maximum of only 60% of
that time to Bragg and SVRV. Where any time entry plausibly related to multiple activities, I
3
liberally rounded down in attributing time as being spent on activities relevant to this motion,
4
which categories are described infra. I excluded all time spent deposing third parties or preparing
5 for those depositions, even if those depositions were necessitated by Bragg’s and SVRV’s
6 withholding of discovery. I excluded all time spent attending the parties’ second IDC, given that
7 Mr. Van Steenis did not attend it (although SVRV still had not filed any documents claiming the
8 bankruptcy stay extended to it). I excluded all time corresponding with John Ho and Quanyu
Huang about withheld documents, to whom Plaintiffs originally issued third-party subpoenas
9
before they brought their own claims against Bragg and SVRV. I excluded all time spent
10
conducting general research and/or strategic analysis even when it was directly prompted by
11
Bragg’s and SVRV’s discovery failures. I excluded all costs associated with producing,
12 processing, or hosting Bragg’s and SVRV’s own documents for them at Plaintiffs’ expense. I have
13 categorized each fee or cost as neatly as reasonably possible, although in some cases there is
14 inevitable overlap (e.g., between conferring with third parties regarding their production of
documents withheld by Bragg and chronicling those deficiencies).
15
50. Plaintiffs have incurred the equivalent of well over $90,000 in total legal fees and
16
costs from Bragg’s and SVRV’s discovery abuses, consisting of at least $27,434 in legal fees and
17
costs in obtaining third-party discovery of Bragg’s and SVRV’s documents (which Bragg and
18 SVRV should have produced themselves); at least $22,760 in legal fees and costs in tracking down
19 documents withheld by Bragg and SVRV from various sources, including by identifying spoliated
20 evidence and analyzing activity logs demonstrating Bragg’s and SVRV’s withholding of
21 documents (including in many cases from their own counsel), and chronicling said withholdings;
at least $14,966 in legal fees and costs in drafting messages to or otherwise corresponding with
22
Bragg’s and SVRV’s counsel about their discovery abuses; at least $7,551 in legal fees and costs
23
in preparing for and attending the parties’ IDCs, including drafting briefs to the IDC; and at least
24 $17,673 in legal fees and costs in relating to researching and preparing this motion and the
25 associated materials. In each of the foregoing cases, I note that Plaintiffs incurred “over” or “at
26 least” the foregoing quantities in said fees and costs because for the sake of expedience, in some
27 cases I did not even attempt to identify all such time or costs, rounded down the estimates liberally,
and excluded all paralegal time.
28
14
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
1 I declare under penalty of perjury under the laws of the State of California that the foregoing is
2 true and correct.
3
4 Dated: June 12, 2023 By: ______________________
Collin J. Vierra
5
EIMER STAHL, LLP
6
Attorney for Plaintiffs
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
Preview
1 Collin J. Vierra (State Bar No. 322720) EIMER STAHL LLP 2 99 Almaden Blvd., Suite 600 San Jose, CA 95113-1605 3 Telephone: (408) 889-1668 4 Email: cvierra@eimerstahl.com 5 Attorney for Plaintiffs Robert Arntsen, Mary Lee. Arntsen Family Partnership, LP, 6 Brian Christopher Dunn Custodianship 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN MATEO 9 10 Robert Arntsen; Mary Lee; Arntsen Family Case No. 22-CIV-01148 Partnership, LP; and Brian Christopher Dunn 11 Custodianship; Date: August 4, 2023 12 Time: 9:00 A.M. PST Plaintiffs, Dept. 21 13 v. Hon. Robert D. Foiles 14 David M. Bragg; Silicon Valley Real Ventures LLC; SVRV 385 Moore, LLC; SVRV 387 DECLARATION OF 15 Moore, LLC; Gregory J. Davis; Kevin Wolfe; COLLIN J. VIERRA 16 James Justesen; Paramont Woodside, LLC; IN SUPPORT OF MOTION TO and Paramont Capital, LLC; COMPEL AND FOR SANCTIONS 17 AGAINST DEFENDANTS DAVID M. Defendants. BRAGG AND SILICON VALLEY REAL 18 VENTURES, LLC 19 20 21 22 23 24 25 26 27 28 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 I, Collin James Vierra, attest as follows: 2 Background 1. I am over 18 years of age, of sound mind, and otherwise competent to make this 3 Declaration. I am not a party to this action. 4 2. I am an attorney at Eimer Stahl, LLP, and am Plaintiffs’ counsel of record in this 5 action. 6 3. I have met and conferred with opposing counsel about each of the issues that is a 7 subject of this motion (and have made many more efforts to meet and confer with him about these 8 issues, which efforts repeatedly were rejected, as described in further detail below). The IDC Commissioner authorized Plaintiffs to bring this motion. 9 Plaintiffs’ Discovery Requests 10 4. Plaintiffs’ requests for production served on Bragg and SVRV to date are attached 11 as Exhibit A. 12 5. Plaintiffs’ special interrogatories served on Bragg and SVRV to date are attached 13 as Exhibit B. 14 6. Plaintiffs’ requests for admission served on Bragg and SVRV to date are attached as Exhibit C. 15 7. Plaintiffs’ form interrogatories served on Bragg and SVRV to date are attached as 16 Exhibit D. 17 8. Bragg’s and SVRV’s objections and responses to Plaintiffs’ requests for production 18 served to date are attached as Exhibit E. 19 9. Bragg’s and SVRV’s objections and responses to Plaintiffs’ special interrogatories 20 served to date are attached as Exhibit F. Bragg and SVRV never responded to Plaintiffs’ sixth set 21 of special interrogatories, even after Plaintiffs sent multiple emails to Bragg’s counsel informing him of Bragg’s and SVRV’s failure to respond, and instructing them to do so. 22 10. Bragg’s and SVRV’s objections and responses to Plaintiffs’ requests for admission 23 served to date are attached as Exhibit G. 24 11. Bragg’s and SVRV’s objections and responses to Plaintiffs’ form interrogatories 25 served to date are attached as Exhibit H. 26 Bragg’s and SVRV’s Documents 27 12. During the first thirteen months of this litigation, Plaintiffs obtained thousands of responsive documents that were in Bragg’s and SVRV’s possession that Bragg and SVRV 28 2 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 withheld from Plaintiffs, including text messages, contracts, financial records, email 2 communications, and more. Bragg and SVRV continue to withhold numerous responsive documents from Plaintiffs. Plaintiffs have obtained responsive documents in Bragg’s and SVRV’s 3 possession from Genesis bank (the senior lender for the Moore Road Project), Colleen Marchbank 4 (Bragg’s co-broker for the Project), First Republic Bank (the bank for the Moore Road LLCs), 5 Bank of America (the bank for SVRV from which Bragg and SVRV made expenditures for the 6 Moore Road Project), Kurtis Kludt (Bragg’s former co-director of SVRV and former co-defendant 7 in this litigation), Lukas Leuthold (Bragg’s former employee who worked on the Moore Road 8 Project), Rich Bragg (Bragg’s brother), the Paramont Defendants, and others. In fact, every time Plaintiffs have subpoenaed a third party, that party has produced documents that were in Bragg’s 9 and/or SVRV’s possession that they were withholding (a fact I have raised repeatedly with Bragg’s 10 counsel, see Exhibit N). Among the documents that Plaintiffs obtained from third parties that 11 Bragg and SVRV withheld are: 12 a. financial ledgers showing that Bragg labeled certain personal expenditures made 13 from SVRV’s corporate accounts as part of Bragg’s “Pot of Gold”; 14 b. a cap table for the SVRV 631 Beach project indicating that Bragg used Bob’s and Martha’s short-term loans to the Moore Road Project for the SVRV 631 Beach 15 project; 16 c. financial statements in which Bragg told banks that SVRV’s corporate assets 17 belonged to him personally; 18 d. text messages with Bragg’s co-director indicating that Bragg’s co-director 19 suspected Bragg may have made “falsehoods” to Plaintiffs (see Vierra Decl. (Mar. 20 21, 2023), Ex. Y); these messages were not produced by Bragg’s co-director until 21 after he settled with Plaintiffs in November 2022; e. tax returns for the Moore Road LLCs; 22 f. purported “contracts” that Bragg drafted for Plaintiffs articulating unauthorized 23 uses of their money that were never presented to Plaintiffs and/or signed by them; 24 g. an email showing that a vendor threatened to put a lien on the Moore Road 25 properties due to Bragg’s failure to pay for services rendered; 26 h. a project budget and timeline that Bragg drafted for the Moore Road Project that 27 was not followed; and i. thousands more responsive and material documents and communications. 28 3 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 13. Text messages obtained from third parties reveal that Bragg is a prolific texter, even 2 though he produced zero text messages in this litigation. That includes hundreds of text messages produced by Colleen Marchbank and the Paramont Defendants with Bragg, including in which 3 Bragg discussed Plaintiffs’ contributions to the Moore Road Project, and myriad failures with the 4 Moore Road Project. 5 14. Many of Bragg’s and SVRV’s responsive documents are located in Bragg’s SVRV 6 Google account (d@realsv.com)—both in Gmail and in Google Drive. These documents could 7 have been shared with Plaintiffs with the click of a button—and throughout 2022, Plaintiffs 8 repeatedly offered to download, process, host, Bates-stamp, and circulate these documents to the remaining parties to this litigation at Plaintiffs’ expense if Bragg and SVRV simply provided 9 Plaintiffs access to the documents. Bragg and SVRV refused to grant Plaintiffs access to these 10 documents until April 26, 2023 (after the IDC Commissioner required them to meet-and-confer 11 with Plaintiffs in person, or otherwise would have authorized Plaintiffs to file an immediate motion 12 to compel), even though Bragg and SVRV were first served with discovery in May 2022. Bragg 13 and SVRV eventually provided Plaintiffs access to these documents by giving them login 14 credentials—proving that these documents could have been made available to Plaintiffs in seconds any time during the preceding eleven months. Bragg and SVRV simply refused to produce them. 15 15. Prior to granting Plaintiffs access to these documents, Bragg and SVRV repeatedly 16 falsely asserted that Plaintiffs already had access to all responsive documents. For example, on 17 July 6, 2022, Bragg wrote to me, “Your clients have all the same access to the Google Drive that 18 I have.” (See Vierra Decl. (July 13, 2022), Ex. S.) That was false. 19 16. As another example, after producing a small number of documents on August 29, 20 2022 (after Plaintiffs filed a motion to compel and for sanctions), Bragg and SVRV falsely 21 “represented” to Plaintiffs that these documents “represented either everything or close to everything related to the Moore Road project that would be responsive to your document requests.” 22 (Reply ISO MTC (Sept. 9, 2022), at 9–10.) But that was not even close to true; Bragg’s SVRV 23 Google account contains at least hundreds of responsive documents that were not included in this 24 “production.” 25 17. As yet another example, on the parties’ March 23, 2023 phone call (only the second 26 phone call I was able to obtain with Bragg’s state-court counsel, Mr. Van Steenis, in over a year 27 of litigation), Mr. Van Steenis expressed his belief that Bragg and SVRV had already provided Plaintiffs access to Bragg’s SVRV Google account. (Vierra Decl. (May 19, 2023), Ex. K.) But 28 4 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 they obviously had not, which I told Mr. Van Steenis. 2 18. Then, on April 17, 2023, Bragg and SVRV falsely told the IDC Commissioner that “any documents Bragg is aware of on the Google Drive that pertained to the Moore Road project 3 has been provided to Plaintiffs, including full access editing rights to their counsel.” (Exhibit L.) 4 That was also false. 5 19. Bragg and SVRV still have not provided Plaintiffs access to other SVRV Google 6 accounts that contain responsive documents. For example, they have not provided access to 7 Whitney Pine’s or Celeste Rogers’s accounts (each of whom did accounting for the Moore Road 8 Project). Counsel for the bankruptcy trustee in Bragg’s chapter 7 action recently send Bragg a subpoena seeking tax and other accounting documents that Bragg has not disclosed in that action, 9 either. 10 20. Moreover, even though Bragg’s and SVRV’s former employee, Lukas Leuthold, 11 told Plaintiffs in September 2022 that there were numerous responsive documents in his old SVRV 12 Google account, Bragg and SVRV refused to make those documents available to Plaintiffs. 13 Leuthold was locked out of his account and only the administrator (i.e., Bragg/SVRV) could access 14 the files. But they refused to do so. A true and correct copy of an October 2022 email I sent to Bragg’s and SVRV’s counsel (to which he never responded) seeking cooperation in obtaining 15 access to Leuthold’s SVRV Google account is attached as Exhibit K. Bragg and SVRV evidently 16 did not share Leuthold’s password with him until April 2023. Bragg and SVRV still did not share 17 that information with Plaintiffs, but Leuthold, instead, ultimately shared it with Plaintiffs in April 18 2023. 19 21. In May 2023, Bragg also produced a small number of documents from his personal 20 Gmail account. Although prior to then, Bragg repeatedly denied that there were any documents in 21 his personal Gmail or Google Drive accounts that were not also in his SVRV Gmail or Google Drive accounts, this also was false, again as proven by third-party discovery. This production did 22 not include any files from Google Drive, as opposed to Gmail, yet Bragg still has falsely asserted 23 that he ran search terms and produced all responsive documents from his personal Google Drive 24 account, as well. 25 22. Moreover, when Bragg did produce some documents from this Gmail account, his 26 production was, once again, woefully insufficient. He used patently inadequate search parameters, 27 did not even produce all emails that should have hit on those parameters, did not produce many attachments, did not search Cc or Bcc fields, and more. He also evidently did not even attempt to 28 5 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 search his personal Google Drive account for responsive documents, even though it appears that 2 he mostly used his personal Google Drive account—rather than his SVRV Google Drive account— for business. A true and correct copy of a letter I wrote to Mr. Van Steenis detailing some of these 3 (and other) deficiencies is attached as Exhibit P. I noted many of these same deficiencies for Mr. 4 Van Steenis in September 2022, after Bragg’s provision of a small number of documents on August 5 29, 2022 (after Plaintiffs filed their previous motion to compel), but these deficiencies were never 6 corrected. A true and correct copy of that email is attached as Exhibit R. Worse, while Bragg 7 continues to falsely assert he has produced all responsive documents from his personal Google 8 Drive account, I have been able to determine via Google Drive activity logs that on June 6, 2023, Bragg, using his personal account, removed a clearly-responsive document called “Moore funds 9 overview” from a folder called “Accounting Moore Rd” to which Bragg’s co-defendant granted 10 Plaintiffs access. He did the same thing in removing what seems to be a draft Moore Road contract 11 with Plaintiff Bob Arntsen from a folder called “Robert (Bob) Arntsen.” Therefore, these formerly 12 accessible, indisputably responsive documents are newly inaccessible to Plaintiffs because of 13 Bragg’s conduct. In other words, even where third parties provided Plaintiffs access to responsive 14 documents that Bragg has withheld for more than a year, Bragg is now undoing the third parties’ work and preventing Plaintiffs from viewing these documents. 15 Bragg’s and SVRV’s Counsel’s Refusals to Speak by Phone or to Meet and Confer 16 23. Bragg’s and SVRV’s counsel has expressly indicated on multiple occasions 17 throughout this litigation that he refused to speak with me by phone. For example, on August 24, 18 2022, after I informed Mr. Van Steenis that Bragg had contacted Plaintiffs, Mr. Van Steenis 19 responded, “Re: Mr. Bragg. I’ve advised him that we will only deal with you and your clients in 20 writing.” A true and correct copy of this email is attached as Exhibit Y. As another example, on 21 September 16, 2022, I invited Mr. Van Steenis (again) to meet and confer and opened up a conference line, but Mr. Van Steenis did not join. I informed him I would open up the conference 22 line again later that day so that we could meet and confer. Mr. Van Steenis demanded that “[i]f 23 Plaintiffs wish to meet and confer telephonically,” another attorney from my firm would have to 24 join (even though I am Plaintiffs’ sole counsel of record), or “[a]lternatively, we can record the 25 conversation.” He continued, “If that is not possible, then I revert back to the previous position to 26 only deal with you in writing.” I responded that Mr. Van Steenis was “welcome to record the 27 conversation if you would like.” But then he immediately revoked the offer again, saying, “Bragg’s and SVRV’s meet and confer efforts will be limited to writing.” A true and correct copy of that 28 6 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 correspondence is attached as Exhibit X. As a third example, on the parties’ initial IDC, Mr. Van 2 Steenis said that I could sit down with Bragg to obtain responsive documents from Bragg’s Google Drive accounts. But after the IDC concluded, Mr. Van Steenis immediately revoked the offer and 3 referred to his “stated position of only dealing with you in writing.” He also said that “we’d have 4 to figure out a way to create a record of such a meeting should it occur.” I immediately offered 5 that the whole meeting could be recorded via Zoom “with video and audio,” but Mr. Van Steenis 6 still refused. A true and correct copy of that correspondence is attached as Exhibit V. As a fourth 7 example, in advance of the parties’ second IDC, I invited Mr. Van Steenis to meet and confer 8 regarding the parties’ discovery dispute. Mr. Van Steenis responded, “[T]o reiterate my position to only deal with you in writing, you are welcome to email me at any time”—even though he had 9 not responded to numerous of my prior emails. Even after I protested that “it is rather inconvenient 10 to keep spelling out these issues in writing, and as I have said before, you are welcome to record 11 any oral conversations,” Mr. Van Steenis still refused to speak by phone. A true and correct copy 12 of this correspondence is attached as Exhibit J. 13 24. Before March 2023, I was able to obtain a single phone call with Mr. Van Steenis, 14 which took place on July 18, 2022, well after Bragg was already in default and had refused to respond to discovery. On that call, Mr. Van Steenis claimed Bragg would begin providing 15 discovery, but Bragg did not. I tried to follow up with Mr. Van Steenis via email, but he did not 16 respond to me until I said that if he did not, I would seek sanctions against him. A true and correct 17 copy of that email thread is attached as Exhibit T. Despite that, I have offered to meet and confer 18 with Mr. Van Steenis more than a dozen times about Bragg’s and SVRV’s discovery obligations. 19 Mr. Van Steenis refused to respond to dozens of my emails during the past year, including 20 numerous invitations to meet and confer. 21 25. Another such example is that after the Court issued the tentative ruling in September 2022 denying Plaintiffs’ prior motion to compel for lack of an IDC, I wrote to Mr. Van 22 Steenis, “Plaintiffs will not contest the Court’s tentative ruling. Given that you have indicated your 23 availability at 9am PST tomorrow” (Mr. Van Steenis had filed a notice of intent to appear at the 24 hearing on the motion to compel scheduled for 9am PST the following morning) “I suggest that 25 we meet and confer at that time to see if we can narrow the issues in dispute before the September 26 27, 2022 IDC.” I then provided a summary of issues to be discussed. Mr. Van Steenis refused to 27 join the call, and despite having filed his notice of intent to appear at the hearing, claimed that he was unavailable at that time. I tried to arrange another meet-and-confer for the following Monday, 28 7 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 but Mr. Van Steenis refused to join that call, as well. 2 26. Mr. Van Steenis has refused to respond to literally dozens of emails throughout this litigation. The full extent of these refusals is too voluminous to describe in this declaration. 3 Approximately forty such examples are described in Plaintiffs’ August 25, 2022 motion to compel 4 at pages 14–17. This practice only continued after that filing. To take just one example that has 5 been particularly prejudicial, on September 22, 2022, Plaintiffs proposed a set of search parameters 6 that should be used as a starting point for Bragg’s and SVRV’s productions. Mr. Van Steenis said 7 he would “discuss with [his] client.” But Bragg and SVRV never provided a substantive response 8 (nor produced any text messages). A true and correct copy of that email thread is attached as Exhibit N. Several days ago (eight months after the fact), I received an email from Mr. Van Steenis 9 that inaccurately described Plaintiffs’ search parameters and claimed that Bragg had run certain 10 other terms, which (a) are inadequate, and (b) third-party productions prove he did not even run 11 properly (if at all). Instead, based on Bragg’s recent, small production, when he recently searched 12 his personal Gmail account for responsive documents, he did not even purport to search for 13 Plaintiffs’ names, “Bob,” “Martha,” and “Mary”; the name of the real estate project at the heart of 14 this litigation, “Moore”; the name of the senior lender for the project, “Genesis”; etc. Mr. Van Steenis also continues to let Bragg self-collect documents. At the parties’ last IDC, Mr. Van Steenis 15 maintained that self-collection was acceptable, even though the Commissioner raised at the parties’ 16 prior IDCs that it was not under the circumstances (even before Bragg’s spoliation of text messages 17 came to light, which only strengthened the force of the Commissioner’s admonition). A true and 18 correct copy of a letter in which I raised these issues is attached as Exhibit P. 19 IDC 20 27. Plaintiffs’ IDC letter briefs to date are attached as Exhibit I. The IDC 21 Commissioner’s minute orders, and certain other correspondence from the IDC Commissioner, relating to the parties’ dispute are attached as Exhibit AA. 22 28. Despite the parties being ordered to submit IDC letter briefs by specific dates on 23 three separate occasions prior to this month, Bragg and SVRV violated each of those orders. 24 29. The parties were ordered to submit their letter briefs for the September 27, 2022 25 IDC by September 11, 2022. Bragg and SVRV did not submit theirs until September 22, 2022. In 26 that letter, Bragg and SVRV requested that the IDC be taken off the calendar “until the parties 27 have exhausted all meet and confer obligations,” even though they had refused to speak by phone or to respond to numerous of Plaintiffs’ emails for months. Their letter brief is attached as Exhibit 28 8 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 O. 2 30. The parties were ordered to submit their letter briefs for the October 27, 2022 IDC by October 24, 2022. Although Bragg filed a notice of stay of proceedings as to himself one 3 business day before this due date, he did not at that time claim a stay of proceedings as to SVRV. 4 Yet SVRV never submitted an IDC letter brief. 5 31. When the bankruptcy court lifted the stay, Plaintiffs immediately sought to put the 6 IDC back on the calendar. Mr. Van Steenis took six days to confirm his availability. The parties 7 were ordered to submit their letter briefs for the April 20, 2022 IDC by March 8, 2022. Yet Bragg 8 and SVRV did not submit their letter brief until April 17, 2023, despite falsely insinuating on March 21, 2023 that they had already done so. Bragg’s and SVRV’s letter brief is attached as 9 Exhibit L. The parties held their final IDC on June 7, 2023. Plaintiffs submitted a further letter 10 brief raising numerous issues to which Bragg and SVRV did not even respond (Exhibit I). At the 11 IDC, the Commissioner authorized Plaintiffs to bring this motion to address issues with spoliation, 12 withheld documents and the impropriety of Bragg’s and SVRV’s self-collection, and otherwise 13 insufficient responses to Plaintiffs’ requests for production, special interrogatories, and requests 14 for admission. Bragg’s and SVRV’s Bad-Faith Offers and Further Meet-and-Confer Obstruction 15 32. In advance of the parties’ September 27, 2022 IDC, Mr. Van Steenis said that if 16 “Plaintiffs wish[ed] to meet and confer telephonically,” they could do so if “we can record the 17 conversation.” I responded that Mr. Van Steenis was “welcome to record the conversation if you 18 would like.” But even with this permission, he refused to speak by phone for the next six months. 19 (Exhibit X.) 20 33. At the parties’ September 27, 2022 IDC, Mr. Van Steenis said I could sit down with 21 Bragg in person to look through his Google accounts and identify responsive documents. Because of this offer, Plaintiffs agreed to continue the IDC to October 27, 2022 rather than immediately 22 filing a motion to compel. After the IDC, I immediately followed up on this offer, even saying that 23 I would drive to San Mateo (or elsewhere) to meet with Bragg in person to do this. Mr. Van Steenis 24 then said this offer was “rejected” and that because he would “only deal[] with [me] in writing, 25 we’d have to figure out a way to create a record of such meeting should it occur.” I said that the 26 whole meeting could be recorded via Zoom with video and audio. But Bragg and SVRV still 27 refused to follow through on the offer. (Exhibit V.) 34. My second phone call with Mr. Van Steenis did not occur until March 23, 2023, 28 9 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 following Bragg’s and SVRV’s second default in this action (and third default, including in the 2 bankruptcy court). On that call, he reiterated that I could arrange a meeting with Bragg to discuss his discovery obligations. But Bragg and SVRV refused to follow upon that offer. On that same 3 call, Mr. Van Steenis claimed he was under the impression that Bragg had already provided 4 Plaintiffs access to Bragg’s SVRV Google account, even though Bragg plainly had not (and, 5 indeed, had not provided any further discovery in the preceding six months, in state or federal 6 court). Bragg and SVRV did not dispute that the documents in that account were responsive to 7 Plaintiffs’ discovery requests. (Nor have they ever disputed that they withheld, and then spoliated, 8 all responsive text messages from Plaintiffs.) Bragg and SVRV did not produce any documents following that call until April 26, 2023 (after the parties’ next IDC). On the same call, Bragg and 9 SVRV took the position that the bankruptcy court’s lifting of the stay in the adversary proceeding 10 somehow limited discovery in this case. Also on that call, Mr. Van Steenis said that Bragg had 11 instructed him not to speak with Plaintiffs’ counsel by phone during the preceding eight months. 12 35. On that call, Bragg and SVRV also acknowledged that they had not yet submitted 13 a letter brief for the April 20, 2023 IDC. A true and correct copy of my summary of the parties’ 14 March 23, 2023 call, and Bragg’s and SVRV’s response to it, is attached as Exhibit S. Bragg’s and SVRV’s Failure to Respond to Plaintiffs’ Concerns in Advance of the 15 Second IDC 16 36. In advance of the October 27, 2022, IDC, I wrote to Mr. Van Steenis again to ask 17 him to “[p]lease confirm if and when Bragg (as always, used to refer to both Bragg and SVRV)” 18 would fulfill his discovery obligations, including by producing documents, providing written 19 discovery responses, and producing a privilege log. I also emphasized again my desire to discuss 20 Bragg’s and SVRV’s discovery obligations by phone or in person. Mr. Van Steenis refused to 21 address these issues by phone or in person, and instead of providing any substantive response to Plaintiffs’ contentions, merely said he would “forward the bullet points below to Mr. Bragg.” Yet 22 Plaintiffs never received a response (and still have not). (Exhibit J.) 23 The Parties’ April 26, 2023 Meet-and-Confer 24 37. At the parties’ April 20, 2023 IDC, the Commissioner said he would delay 25 authorizing Plaintiffs to bring a motion to compel if Bragg and SVRV agreed to meet-and-confer 26 with Plaintiffs in-person to provide outstanding discovery. Plaintiffs promptly emailed Bragg and 27 SVRV and asked them to provide all outstanding discovery in advance of the meeting so that the parties could discuss any remaining issues at the meeting. Bragg and SVRV did not respond. A 28 10 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 true and correct copy of my email is attached as Exhibit Q. At the meet-and-confer, apart from 2 finally providing access to Bragg’s SVRV Google account, Bragg and SVRV did not provide any further discovery (documents or written discovery). Plaintiffs therefore had to voice the same 3 concerns they had been expressing for the past eleven months, to which Bragg and SVRV had 4 refused to respond. At the meet-and-confer, Bragg and SVRV claimed they would provide 5 additional responses after the meeting, but they refused to provide any date by which they would 6 do so. They still have not provided any responses. At the parties’ last IDC held on June 7, 2023, 7 Mr. Van Steenis said he had intended to provide written responses by June 14, 2023—in other 8 words, at the last possible minute before Plaintiffs intended to bring this motion. That, again, is unacceptable, purposeful delay. Those responses were due in mid-2022. At the parties’ last IDC, 9 the Commissioner agreed that Bragg and SVRV should have been prepared to resolve these issues 10 at the April 26, 2023 meet-and-confer—but they were not. 11 38. At this meeting, Bragg also confirmed that he intentionally spoliated all of his text 12 messages in 2023 without ever having produced a single text message. He said that in 2023, he 13 traded in his old phone to receive a discount on a new one, and took no steps to preserve any of 14 his text messages. Mr. Van Steenis claimed he would reach out to a vendor to see if Bragg’s text messages could be recovered, but prior to the parties’ final IDC on June 7, 2023, Mr. Van Steenis 15 never sent Plaintiffs any update indicating he had even attempted to recover Bragg’s spoliated text 16 messages. On the parties’ final IDC, Mr. Van Steenis said he had been told the messages could not 17 be recovered. He did not contest that Bragg had spoliated his text messages or that this spoliation 18 was improper. 19 39. Bragg and SVRV have never produced any text messages in this litigation, and now 20 never will due to this spoliation. 21 40. I sent Mr. Van Steenis a summary of our April 26, 2023 meet-and-confer promptly after it occurred. He did not respond for two weeks. A true and correct copy of my correspondence, 22 and his response, is attached as Exhibit K to my May 19, 2023 declaration. I followed up with Mr. 23 Van Steenis via another letter on May 18, 2023. Mr. Van Steenis never responded. A true and 24 correct copy of that letter is attached as Exhibit L to my May 19, 2023 declaration. 25 41. A true and correct copy of a September 2022 email thread in which I asked Mr. 26 Van Steenis to confirm that Bragg had not spoliated any additional evidence is attached as Exhibit 27 R. Mr. Van Steenis never responded to the September 19, 2022 message. A true and correct copy of another email I sent to Mr. Van Steenis about this issue on September 27, 2022 is attached as 28 11 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 Exhibit W. 2 Plaintiffs’ Prejudice in Depositions from Bragg’s and SVRV’s Withholding of Responsive Documents and Discovery 3 42. Plaintiffs were supposed to sit for depositions by the Paramont Defendants in early- 4 to-mid May 2023, but these were postponed because Bob suffered a stroke about a week before 5 his deposition. Mary also suffered a stroke in August 2022. 6 43. Plaintiffs took the Paramont Defendants’ depositions in late May 2023. They had 7 to do so without the benefit of full discovery from Bragg and SVRV. This was enormously 8 prejudicial, both because Plaintiffs lacked a full factual record, and because the Paramont Defendants, as a matter of policy, did not retain attachments to emails. Therefore, when the 9 Paramont Defendants exchanged emails and attachments with Bragg and/or SVRV, in many cases, 10 only Bragg and/or SVRV possesses those attachments. Plaintiffs therefore could not use certain 11 attachments in these depositions at all, and in other cases, the Paramont Defendants lodged 12 foundational objections to certain documents because even when Bragg and SVRV have belatedly 13 produced certain documents in this litigation, they have not Bates-stamped a single document in 14 this case. Bragg still has not produced many of these emails and attachments—as proven by the emails provided by the Paramont Defendants—even while continuing to assert that he has. 15 Bragg’s and SVRV’s Failure to Retain Correspondence or Productions in this 16 Litigation 17 44. After Mr. Van Steenis left his previous firm in 2022, I asked him to confirm he had 18 retained the case file for this litigation. After a delay, he assured me that he did. But at the parties’ 19 April 26, 2023 meet-and-confer, he revealed he had not. This included that he had not even 20 preserved Bragg’s and SVRV’s files that Plaintiffs had Bates-stamped and circulated to 21 Defendants (including Bragg and SVRV) at Plaintiffs’ expense in September 2022. Plaintiffs provided these documents to Mr. Van Steenis again at their expense in May 2023, but Mr. Van 22 Steenis did not even download them. This demonstrates that Bragg and SVRV never had any intent 23 to litigate this case on the merits; they intended to escape their obligations through the bankruptcy 24 process. (See Vierra Decl. (May 19, 2023), Ex. L.) 25 Bragg’s and SVRV’s Litigation History 26 45. I have reviewed filings in numerous lawsuits where Bragg was a party dating back 27 to at least 2009. For example, Bragg also declared bankruptcy in 2009, but his initial petition for bankruptcy was dismissed. There, the trustee noted inaccuracies in Bragg’s bankruptcy petition. 28 12 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 46. SVRV (and SVRV’s affiliated LLCs) have been regular defendants in California 2 state courts, as well. For example, Bragg and SVRV were sued by their former employee, Richard Crevelt, in 2019 for failure to repay a $250,000 loan. (FAC ¶ 101.) As another example, Bragg 3 and SVRV faced a dispute with investors in SVRV’s Central LAH Project at least by mid-2021. 4 Certain of those investors, like Plaintiffs, also accused Bragg of presenting different investors with 5 contradictory operating agreements. A letter from the law firm LPS Law summarizing some of 6 these accusations is attached as Exhibit Z. Bragg’s and SVRV’s attorney in this action, Mr. Van 7 Steenis, represented Bragg and SVRV in the Central LAH dispute, which was subject to arbitration 8 at least as of March 2022 (around the time this action was filed). In addition to Mr. Van Steenis, Bragg and SVRV have been represented by multiple, highly-credentialed attorneys during the past 9 few years, including attorneys with decades of experience and law degrees from the likes of 10 Stanford Law School. Based on the filings and communications I have reviewed, it appears that 11 Bragg and SVRV have been involved in litigation (and/or arbitration) continuously since at least 12 2019. 13 47. Plaintiffs threatened Bragg and SVRV with this litigation in spring 2021. A true 14 and correct copy of an email from Plaintiff Bob Arntsen to Bragg is attached as Exhibit M. When Plaintiffs initiated this action, they served Bragg and SVRV (by multiple means) with a legal hold 15 notice, as well, which Bragg and SVRV do not dispute they received. An example of one of those 16 legal hold notices is attached as Exhibit U. 17 48. Plaintiffs initiated their adversary proceeding against Bragg in the federal 18 bankruptcy court on December 22, 2022. The parties were promptly instructed to hold a discovery 19 conference and to make initial disclosures. Despite my efforts, Bragg’s counsel refused to engage 20 in a proper discovery conference. Bragg also never produced a single document (despite asserting 21 that his initial disclosures were complete). Bragg initially was represented by at least two attorneys in connection with his Chapter 7 petition (neither one of whom ever spoke with me by phone, 22 despite my efforts), and then was represented by new counsel in connection with responding to 23 Plaintiffs’ adversary proceeding complaint (who is now his counsel both in the adversary 24 proceeding action and in the underlying Chapter 7 action). 25 Plaintiffs’ Costs in Responding to Bragg’s and SVRV’s Discovery Abuses 26 49. I have reviewed my time entries from the past year, and multiplied the time spent 27 responding to Bragg’s and SVRV’s discovery abuses by my billing rate at each such time. I am representing Plaintiffs on contingency in this matter. I excluded all time drafting Plaintiffs’ prior 28 13 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 motions to compel and associated documents. Where time was evenly spent in relation to Bragg, 2 SVRV, and Kludt (who settled with Plaintiffs in 2022), I attributed a maximum of only 60% of that time to Bragg and SVRV. Where any time entry plausibly related to multiple activities, I 3 liberally rounded down in attributing time as being spent on activities relevant to this motion, 4 which categories are described infra. I excluded all time spent deposing third parties or preparing 5 for those depositions, even if those depositions were necessitated by Bragg’s and SVRV’s 6 withholding of discovery. I excluded all time spent attending the parties’ second IDC, given that 7 Mr. Van Steenis did not attend it (although SVRV still had not filed any documents claiming the 8 bankruptcy stay extended to it). I excluded all time corresponding with John Ho and Quanyu Huang about withheld documents, to whom Plaintiffs originally issued third-party subpoenas 9 before they brought their own claims against Bragg and SVRV. I excluded all time spent 10 conducting general research and/or strategic analysis even when it was directly prompted by 11 Bragg’s and SVRV’s discovery failures. I excluded all costs associated with producing, 12 processing, or hosting Bragg’s and SVRV’s own documents for them at Plaintiffs’ expense. I have 13 categorized each fee or cost as neatly as reasonably possible, although in some cases there is 14 inevitable overlap (e.g., between conferring with third parties regarding their production of documents withheld by Bragg and chronicling those deficiencies). 15 50. Plaintiffs have incurred the equivalent of well over $90,000 in total legal fees and 16 costs from Bragg’s and SVRV’s discovery abuses, consisting of at least $27,434 in legal fees and 17 costs in obtaining third-party discovery of Bragg’s and SVRV’s documents (which Bragg and 18 SVRV should have produced themselves); at least $22,760 in legal fees and costs in tracking down 19 documents withheld by Bragg and SVRV from various sources, including by identifying spoliated 20 evidence and analyzing activity logs demonstrating Bragg’s and SVRV’s withholding of 21 documents (including in many cases from their own counsel), and chronicling said withholdings; at least $14,966 in legal fees and costs in drafting messages to or otherwise corresponding with 22 Bragg’s and SVRV’s counsel about their discovery abuses; at least $7,551 in legal fees and costs 23 in preparing for and attending the parties’ IDCs, including drafting briefs to the IDC; and at least 24 $17,673 in legal fees and costs in relating to researching and preparing this motion and the 25 associated materials. In each of the foregoing cases, I note that Plaintiffs incurred “over” or “at 26 least” the foregoing quantities in said fees and costs because for the sake of expedience, in some 27 cases I did not even attempt to identify all such time or costs, rounded down the estimates liberally, and excluded all paralegal time. 28 14 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS 1 I declare under penalty of perjury under the laws of the State of California that the foregoing is 2 true and correct. 3 4 Dated: June 12, 2023 By: ______________________ Collin J. Vierra 5 EIMER STAHL, LLP 6 Attorney for Plaintiffs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS