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GLENN AGRE BERGMAN & FUENTES LLP
LYN R. AGRE (CASBN 178218)
EDWARD E. SHAPIRO (CASBN 326182)
44 Montgomery Street, Suite 2410
San Francisco, CA 94104
Telephone: (415) 599-0880
lagre@glennagre.com
eshapiro@glennagre.com
Attorneys for Individual Defendants
Geoff Peterson, Timothy Cordell,
Lilian Elias, and Devin Tomcik
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
TRACE3, LLC, a California limited liability CASE NO. 23CV415833
company, Assigned to: Hon. Sunil R. Kulkarni
INDIVIDUAL DEFENDANTS’
Plaintiff, OPPOSITION TO PLAINTIFF TRACE3,
LLC’S MOTION TO MODIFY
TEMPORARY RESTRAINING ORDER
AND ORDER AUTHORIZING
SYCOMP A TECHNOLOGY COMPANY, EXPEDITED DISCOVERY
INC., a California corporation; TIMOTHY
CORDELL, an individual; LILIAN ELIAS, an REDACTED
individual; GEOFF PETERSON, an individual;
DEVIN TOMCIK, an individual; and DOES 1- Date: July 28, 2023
10, inclusive; Time: 9:00 a.m.
Dept: 1
Defendants. Action Filed: May 12, 2023
CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’ MOTION FOR RECONSIDE ATION
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... ii
I. INTRODUCTION ............................................................................................................. 1
II. DISCUSSION .................................................................................................................... 2
A. Trace3 Does Not Allege Any New Facts About The Individual Defendants
That Would Warrant The Extraordinary Relief Plaintiff Is Seeking ..................... 2
1. Trace3 Has Identified No Trade Secrets In Geoffrey Peterson’s
Possession .................................................................................................. 2
2. Trace3 Has Identified No Trade Secrets In Timothy Cordell’s
Possession .................................................................................................. 5
10
3. Trace3 Has Identified No Trade Secrets In Devin Tomcik’s
11 Possession .................................................................................................. 8
12 B. This Dispute Is Entirely Of Trace3’s Making Because Trace3 Did Not
Permit The Individual Defendants To Get Rid Of Their Trace3 Files When
13 They Left The Company ...................................................................................... 12
14 C. None of the File Deletions Constitutes Spoliation ............................................... 12
15 III. CONCLUSION ................................................................................................................ 14
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CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’ MOTION FOR RECONSIDERATION
TABLE OF AUTHORITIES
Page(s)
Cases
Cedars-Sinai Med. Ctr. v. Superior Ct.,
18 Cal. 4th 1 (1998) ............................................................................................................. 12, 13
Erhart v. Bofl Holding, Inc.,
2016 WL 5110453 (S.D. Cal. Sept. 21, 2016) ........................................................................... 13
Ryan v. Editions Ltd. W., Inc.,
786 F.3d 754 (9th Cir. 2015)...................................................................................................... 13
Other Authorities
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Judicial Council of California Civil Jury Instructions ("CACI") ................................................... 13
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CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’ MOTION FOR RECONSIDERATION
Defendants Geoffrey Peterson, Timothy Cordell, and Devin Tomcik (collectively, “the
Individual Defendants”) hereby join in Sycomp Technology Company, Inc.’s (“Sycomp”) July
17, 2023 Opposition To Plaintiff Trace3, LLC’s (“Trace3” or “Plaintiff”) Motion For
Reconsideration Of Temporary Restraining Order, and incorporate the factual background and
legal arguments in that Opposition as if fully set forth herein. In addition, the Individual
Defendants add the following information and argument for this Court’s consideration.
I. INTRODUCTION
Plaintiff has submitted thousands of pages of documents to this Court, yet alleges very
few actual facts about the Individual Defendants. These facts paint a story not of any
10 “conspiracy” to steal trade secrets from Plaintiff, but rather one of how employees work
11 electronically in the modern age (and through COVID-19 lockdowns): they work from home, the
12 office, and on the road, from desktops and laptops, while storing files on computers, removable
13 media, and on cloud storage devices. All of the Trace3 documents that Plaintiff alleges the
14 Individual Defendants “stole” were in fact downloaded or copied as part of the former
15 employees’ work responsibilities. The only reason the Individual Defendants still have any stray
16 Trace3 files is because Trace3 told the Individual Defendants not to delete those files just a few
17 short days after the Individual Defendants gave notice, and while they were still in the process of
18 separating from their former employer.
19 More importantly to Trace3’s application for emergency relief, Plaintiff does not identify
20 any new facts not previously before the Court, and does not identify any documents purportedly
21 amounting to Trade Secrets that it believes are in any Individual Defendant’s possession. Nor do
22 any of the former employees possess any of the nine files Plaintiff claimed as Trade Secrets in its
23 initial emergency application: all of the Individual Defendants’ devices and Dropbox accounts
24 have been imaged by an outside expert retained by counsel (save one newly-identified thumb
25 drive, which is currently being addressed, as described below).
26 Plaintiff also conflates the alleged retention of sensitive documents with the deletion of
27 documents – likely in an attempt to confuse the issues before this Court. Trace3 does not explain
28 why the deletion of any files would entitle it to emergency relief, or even how it was allegedly
CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
harmed, as no files are missing. Nor does the mere deletion of files somehow constitute
spoliation, as Trace3 already has at least one copy of any file that was deleted, and in some
instances, multiple copies.
In each instance where an Individual Defendant deleted a file, it was either part of the
normal course of employment or of leaving Trace3’s employment, or an attempt by a nonlawyer
to comply with the spirit of Trace3’s cease-and-desist letter. In other words, these former
employees cannot win – Trace3 complains that they still have files, but also complains that they
deleted files. This is all a problem of Trace3’s own making.
There is still no emergency, only normal employee turnover in Silicon Valley. Plaintiff will
10 have to accept that competitors to its business exist and that employees are allowed to change jobs,
11 and its request for a further Temporary Restraining Order should be denied.
12 II. DISCUSSION
13 A. Trace3 Does Not Allege Any New Facts About The Individual Defendants
14 That Would Warrant The Extraordinary Relief Plaintiff Is Seeking
15 Although Trace3 maintains it requires modified and continued immediate relief due to an
16 alleged theft of its trade secrets, it repeatedly conflates document deletion with document
17 retention, likely in an attempt to obfuscate its complete lack of evidence (see, e.g., Trace3’s
18 Memorandum of Points and Authorities in Support of its Motion to Modify Temporary
19 Restraining Order and Order Authorizing Expedited Discovery (“T3 Motion”), 7:24-25, referring
20 to files “copied, deleted, moved and/or diverted”). When analyzing the two issues separately, it is
21 clear that the only straggling Trace3 files the Individual Defendants still have (a) do not contain
22 any trade secrets, and (b) only remain in their possession because Trace3 insists that they not
23 delete the files.
24 1. Trace3 Has Identified No Trade Secrets In Geoffrey Peterson’s
Possession
25
26 Plaintiff offers no new evidence or argument pertaining to Geoffrey Peterson, as all of the
27 alleged copying and data storage devices were addressed and disclosed in the last go-round.
28 Compare T3 Motion 12:10-24, with Sycomp’s May 19, 2023 Opposition to Trace3’s Ex Parte
CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
Application 11:9-21 and May 18, 2023 Declaration of Geoffrey Peterson (“Peterson 5/18
Decl.”).) Indeed, Plaintiff’s expert does not even address Mr. Peterson at all in his declaration
and report. (See generally July 6, 2023 Declaration of Sergio Kopelev (“Kopelev 7/6 Decl.”), Ex.
A.)
Nor does Plaintiff even allege Mr. Peterson has any of its trade secrets. The only
allegations Plaintiff makes about Geoffrey Peterson’s possession of documents pertains to an old
Western Digital hard drive he located while preparing his last declaration, which has
approximately 3,500 Groupware files, the most recent of which was dated July 29, 2016. (T3
Motion 12:22-24; see Peterson 5/18 Decl. ¶ 7; July 16, 2023 Declaration of Geoffrey Peterson
10 (“Peterson 7/16 Decl.”) ¶ 11.) These seven-year-old files, from Trace3’s predecessor, are very
11 unlikely to contain any of Trace3’s trade secrets, and indeed Trace3 does not allege they do. (T3
12 Motion, ibid.) Further, Defendants’ independent expert previously imaged this hard drive and
13 confirmed it does not contain any of the nine files Trace3 originally identified as containing its
14 trade secrets. (See Sycomp’s Opposition Brief, filed concurrently.) These files are not only a
15 complete non-issue and red herring, they were also fully addressed at the hearing. (See July 7,
16 2023 Declaration of Nicole S. Phyllis, Ex. E (Transcript of May 23, 2023 Hearing on Plaintiff’s
17 ex parte Application for a Temporary Restraining Order (“May TRO Tr.”) at 28:9-26; 32:1-
18 33:8.))
19 Mr. Peterson has offered to delete these old files, or to handle them as directed (Peterson
20 5/18 Decl. ¶ 7; Peterson 7/16 Decl. ¶ 11), but Trace3 has issued no such instruction. (The hard
21 drive is his personal property and contains personal photos and files that he wishes to retain.) Yet,
22 the moment Trace3 says the word, the disputed files will be gone.
23 All of Plaintiff’s remaining allegations about Mr. Peterson have to do with documents he
24 does not have. First, Trace3 complains that he connected “five” different USB devices to his work
25 laptop, yet only returned two (T3 Motion 12:19-21, 17:14-15), implying that he must still have the
26 remaining three thumb drives in his possession. (Notably, Plaintiff does not identify any alleged
27
28 Each of the Individual Defendants’ previously submitted declarations are attached
to their respective July 16, 2023 declarations.
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INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
trade secrets present on any of these thumb drives.) This speculation ignores the reality of how
thumb drives are used and shared among work colleagues, and as Mr. Peterson attests, these thumb
drives are most likely in Trace3’s possession and were only ever borrowed by him temporarily.
(Peterson 7/16 Decl. ¶ 10.) In any case, as he previously attested, he has searched all the thumb
drives in his possession, and none contain Trace3 information. (Peterson 5/18 Decl. ¶ 6; Peterson
7/16 Decl. ¶ 9.)
Next, Trace3 complains about documents that Mr. Peterson returned to Plaintiff. Trace3
alleges in several instances that Mr. Peterson “admitted” to taking Trace3 Build Documents so he
could continue to support Trace3 clients (T3 Motion 7:4-6, 12:10-15, 17:11-13) – the implication
10 being that he planned to use those documents to support Trace3’s clients on behalf of Sycomp. This
11 implication grossly misstates Mr. Peterson’s declaration, what counsel wrote to Trace3’s counsel
12 in a May 8, 2023 letter, and what counsel shared with the Court at the May 22, 2023 hearing. (See
13 May TRO Tr. at 31:27-33:8; May 18 Declaration of Rajiv Dharnidharka (“RD 5/18 Decl.”), Ex.
14 5.)
15 To clarify, Mr. Peterson stated he downloaded (and then returned) the documents “so that I
16 would not be leaving Trace3 customers or my soon-to-be former colleagues at Trace3 high and
17 dry” because he expected that his former Trace3 colleagues might contact him after his departure
18 with questions, and he believed that having these documents would help him answer those
19 questions to help former Trace3 customers and colleagues. (Peterson 7/16 Decl. ¶ 4.) As he stated
20 on May 18, “I did not have any intention of ‘stealing’ this data or using it in any manner contrary
21 to Trace3’s interests.” (Peterson 5/18 Decl. ¶ 4.) As he repeats now, “I never had any intention of
22 using any of these documents for Sycomp.” (Peterson 7/16 Decl. ¶ 4.)
23 Also false is Trace3’s allegation that some of these documents relate to customers with
24 whom he had no contact, namely, , and . (T3 Motion 7:4-6, 12:15-18; July 7,
25 2023 Declaration of Jeremy Morris (“Morris Decl.”) ¶ 14.) Mr. Peterson did work for both of those
26 clients while at Trace3. (Peterson 7/16 Decl. ¶ 5.) His intention for downloading documents related
27 to these customers was the same as with the others – to answer any questions former colleagues
28
Annexed hereto as Exhibit 1 to the Declaration of Lyn R. Agre (“Agre Decl.”).
CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
may have regarding these customer builds. Id.
In any event, as he explained: “I sent the external hard drive that contained the
information I had downloaded back to Trace3 on April 28, 2023, which was three days prior
to my first day of work at Sycomp.” (Peterson 5/18 Decl. ¶ 4) (emphasis added). He “no longer
[has] any of these documents.” (Peterson 7/16 Decl. ¶ 6.)
Trace3 speculates that Mr. Peterson used Trace3 Build Documents to draft new documents
at Sycomp. (T3 Motion 12:26–13:3.) This speculation appears to be based on Trace3’s mistaken
belief that Sycomp is new to the Rack & Stack industry, but as explained in Sycomp’s Opposition,
it has years of expertise in this industry. Moreover, Mr. Peterson no longer has these Trace3
10 documents. All build documents he has drafted (and all other work performed) while at Sycomp
11 has been started from scratch, using Sycomp’s Build Documents templates, hardware manufacturer
12 documentation, and specifications provided by customers, without reference to anything from
13 Trace3. (Peterson 7/16 Decl. ¶ 7.)
14 Trace3’s allegation that “ is in the process of moving deals to Sycomp through
15 (vendor), pertaining to the same opportunities reflected in the Build Documents taken by Geoffrey
16 Peterson in Exhibit B. (Id., ¶ 23.)” is likewise off the mark. (T3 Motion 13:10-12.) Any Trace3
17 build documents Mr. Peterson may have previously downloaded were returned when he
18 returned the hard drive, thus there are no “Build Documents taken by Geoffrey Peterson in Exhibit
19 B.”. (Peterson 7/16 Decl. ¶ 8.) The new build documents he worked on at Sycomp have
20 also been drafted from scratch, using Sycomp's Build Documents templates, hardware
21 manufacturer documentation, and specifications provided by the customer, without reference to
22 anything from Trace3. (Peterson 7/16 Decl. ¶ 8.)
23 2. Trace3 Has Identified No Trade Secrets In Timothy Cordell’s
Possession
24
25 Plaintiff likewise raises no new issues regarding Trace3 documents in Mr. Cordell’s
26 possession. The only old Trace3 files in Mr. Cordell’s possession or control are in a Dropbox
27 account, and he is unable to delete them because of Trace3’s insistence that he not do so. Trace3’s
28 purported concern and alarm that he might continue to access these files is a problem of its own
CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
making.
As Defendants previously explained, on the evening of April 24 (California time) Mr.
Cordell discovered that he had inadvertently copied Trace3 files to his partner’s Dropbox account
while he had been attempting to move personal files off his work laptop. (May 18, 2023 Declaration
of Timothy Cordell (“Cordell 5/18 Decl.”) ¶ 5.) His first instinct was to delete the files, but then
he caught himself and left the remainder. (Id.) Nothing about these files is new. Trace3 has known
about the existence of these files since at least May, and they were discussed in the initial briefing
and at the hearing. (T3’s May 18, 2023 Ex Parte Motion 17:26-18:10; May TRO Tr. 14:1-3; 21:24-
26.) Moreover, this Dropbox account was imaged by Plaintiff’s expert on June 1 (Kopelev 7/6
10 Decl. Ex. A ¶ 25), yet Plaintiff identifies not a single trade secret file in that account (instead
11 choosing to mislead the Court by focusing on the five files he deleted, addressed below). Since
12 that time, Trace3 has not made any request to Mr. Cordell that the Dropbox files be deleted.
13 Now, Trace3 claims to have “discovered” that the Dropbox account can be accessed from
14 devices other than a Trace3 work computer, and uses this supposed new discovery to articulate its
15 “concern” that “Cordell may continue to access the same devices to misappropriate Trace3 data.”
16 (T3 Motion 9:22-10:2.) But this “discovery” is merely a pretense to relitigate Trace3’s TRO, as it
17 is well known that Dropbox can be accessed from any device connected to the internet, if the user
18 has the required credentials. (July 17, 2023 Declaration of James Vaughn (“Vaughn 7/17 Decl.”)
19 ¶ 13.)
20 Further, this is again a problem of Trace3’s own making. Mr. Cordell does not need or
21 want any of these files. (July 16, 2023 Declaration of Timothy Cordell (“Cordell 7/16 Decl.”) ¶ 7.)
22 It was only Trace3’s own cease-and-desist letter, which insisted that Mr. Cordell “preserve” any
23 files he may have, that stopped him from deleting the files in the first place. (Cordell 5/18 Decl. ¶
24 5.) If Trace3 would allow him or his partner to delete the files, all of Trace3’s “concerns” would
25
To answer Plaintiff’s irrelevant question, Mr. Cordell used his iPhone to access the
26 Dropbox account. He did not save any files to his phone, he has not accessed the Dropbox
account since that time, and to his best recollection he only ever accessed that Dropbox account
27 from his work laptop and his phone. Both his phone and the Dropbox account have been
provided to an expert for forensic imaging pursuant to the Court’s May 23, 2023 Order. (Cordell
28 7/16 Decl. ¶ 8.)
CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
be alleviated. (Cordell 7/16 Decl. ¶ 9.) In any case, he has not accessed the Dropbox account since
April 24 (California time) and will not do so until instructed to do so by counsel or the Court.
(Cordell 7/16 Decl. ¶ 9.)
While Trace3 is “concerned” about files saved to Dropbox, it also inexplicably complains
at length that five of the files have been deleted. (T3 Motion 8:28-9:2.) It remains a mystery why
any of these deletions could support an application for emergency relief, but in any event, no files
have been lost. In his May 18 Declaration, Mr. Cordell shared that the files would be available for
30 days from April 24. (Cordell 5/18 Decl. ¶ 5.) At no time did Trace3 ask counsel or Mr. Cordell
to retrieve the files. Mr. Cordell did not even know that he could enable or disable the auto-delete
10 feature in Dropbox until very recently. (Cordell 7/16 Decl. ¶ 3.)
11 During those 30 days, Trace3 had full access to that Dropbox account. The account was
12 owned by Mr. Cordell’s partner, S.T., a (now former) Trace3 employee, and Trace3 paid for it and
13 thus could have accessed the files at any time. (Agre Decl. Ex. 2, S.T. Deposition Transcript
14 Excerpt.) Instead, on May 12, Trace3 instructed S.T. not to touch the account or to allow anyone
15 else access to the account. (Agre Decl. Ex. 3, at ST000049.) Then, apparently after reviewing
16 Mr. Cordell’s May 18 declaration, where he made clear the files “are retrievable for 30 days in
17 Dropbox,” Trace3 reiterated to S.T. on May 19 that she was not to access the Dropbox account.
18 (Agre Decl. Ex. 4, at ST00095-96.) Trace3 took and imaged S.T.’s computer on May 24, before
19 the deletion was made permanent, but again declined to access her Dropbox account at that time.
20 (7/6 Kopelev Decl., Ex. A ¶ 29). It was Trace3’s own choice to forbid the account owner to access
21 the account or allow Mr. Cordell to access it, while not imaging the account while the deleted files
22 were still available - apparently all to manufacture a dispute where none exists.
23 Regardless, nothing has been deleted, and thus there is no “spoliation.” (Cordell 7/16 Decl.
24 ¶ 4.) As Mr. Cordell explained, the way the files got to Dropbox in the first place is he hurriedly
25 copied them there from his work laptop while he was attempting to copy personal files. (Cordell
26 5/18 Decl. ¶¶ 4-5; Cordell 7/16 Decl. ¶ 4.) Thus, exact copies of those files should be found on his
27 work laptop, which was returned to Trace3. (Cordell 7/16 Decl. ¶ 4.) Indeed, Trace3’s own
28 expert admits he found these exact files on Mr. Cordell’s work laptop. (7/6 Kopelev Decl. ¶
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INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
11) (“Forensic examination also revealed that five (5) files / documents with the same file names
as those deleted from the Dropbox account (¶10) were found on ES0029.”) Additional copies of
these files can be found in Mr. Cordell’s former Trace3 email account, and in the email accounts
of other Trace3 employees. (Cordell 7/16 Decl. ¶ 5.) And Trace3’s protests that the five deleted
files contain “incredibly sensitive” and “textbook Trace3 Trade Secret” information (T3 Motion
9:5-7) are simply misdirection, because regardless of how “sensitive” the files are, they were
deleted, and Mr. Cordell does not have access to any of them. (Cordell 7/16 Decl. ¶ 6.)
Finally, Trace3’s allegation that it “lost” deals to Sycomp merely
describes the reality of competitive businesses. Since joining Sycomp, Mr. Cordell learned that
10 Sycomp was already working on deals for . (Cordell 7/16 Decl. ¶ 10.) Mr. Cordell
11 did not use any materials from Trace3 in pursuit of , or any other deals, while
12 working at Sycomp. Id.
13 3. Trace3 Has Identified No Trade Secrets In Devin Tomcik’s Possession
14
The only new issue in Trace3’s entire brief that has not been previously addressed is
15
Trace3’s allegation that Mr. Tomcik attached a second USB device to his work laptop back in
16
February. (T3 Motion 10:16-19; Kopelev 5/18 Decl. Ex. A ¶ 18). While Mr. Tomcik does not
17
specifically recall doing so, the device Plaintiff’s expert identified has been located and sent to
18
Defendant Sycomp’s expert for forensic imaging pursuant to the Court’s May 23, 2023 Order. (July
19
16, 2023 Declaration of Devin Tomcik (“Tomcik 7/16 Decl.”) ¶ 5.) Mr. Tomcik has not used any
20
files on that device (nor any other Trace3 files) as part of his work at Sycomp. (Tomcik 7/16 Decl.
21
¶ 5.) Trace3 has not identified any alleged trade secrets purportedly copied to this device, nor does
22
Trace3 explain how this thumb drive, last used in February, could be the basis for any emergency
23
relief.
24
All of the remaining issues Trace3 raises about Mr. Tomcik have been previously
25
addressed.
26
27
Trace3’s prior brief referred only to a single USB device. Trace3’s May 18, 2023
28 Ex Parte application, 17:3. The only reference to a second device was buried in their expert’s
declaration.
CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
Dropbox. Trace3 first complains that Mr. Tomcik’s Dropbox files were mirrored to other
of Mr. Tomcik’s devices, supposedly “without explanation.” (T3 Motion 11:6-25.) But the
mirroring of his account was done as part of his normal work at Trace3, was disclosed in letters
from counsel, in his prior declaration, and in the briefing, was discussed at the TRO hearing, and
is also in the nature of how Dropbox works. (Tomcik 7/16 Decl. ¶¶ 3, 8-10; May 18, 2023
Declaration of Devin Tomcik (“Tomcik 5/18 Decl.”) ¶ 4; Sycomp’s May 19, 2023 Opposition Brief
to Ex Parte Application 11:22–12:4, citing RD 5/18 Decl. Ex. 5; May TRO Tr. at 12-13.) Plaintiff
alleges nothing new.
As Mr. Tomcik and his counsel have now explained at least four times, he used his personal
10 Dropbox account to mirror personal and work files across three different devices: (a) a work laptop,
11 which he used primarily while traveling, (b) a personal desktop, which he used for work while he
12 worked from home, and (c) his personal media server that he primarily used to watch movies. (See
13 Tomcik 5/18 Decl. ¶ 4; Tomcik 7/16 Decl. ¶ 8.) For ease of reference and clarity, the Individual
14 Defendants will continue to refer to these computers as devices (a), (b), and (c), respectively.
15 Mr. Tomcik saved Trace3 work files to his Dropbox account to help facilitate his work at
16 Trace3 as part of his normal work duties, not to “misappropriate” any files as Trace3 now claims,
17 and his use was well known to Trace3. (T3 Motion 10:16-11:11; Tomcik 7/16 Decl. ¶ 8.) His
18 Trace3 work files were mirrored to his personal desktop computer (b) because he used it for work
19 when he worked from home. (Tomcik 7/16 Decl. ¶ 8.) The files were also incidentally mirrored
20 to his personal media server (c) because he used the same Dropbox account for work and for his
21 personal files. (Tomcik 7/16 Decl. ¶ 8.) Nothing about this is mysterious or new (T3 Motion 11:7)
22 - this is how Mr. Tomcik did his work for Trace3 while he was employed there, as previously
23 disclosed. (Tomcik 5/18 Decl. ¶ 3-4; May 23, 2023 of Devin Tomcik (“Tomcik 5/23 Decl.”) ¶ 3.)
24 As Mr. Tomcik previously explained, when he left Trace3, he deleted all Trace3 files from
25 his personal Dropbox account. (Tomcik 5/18 Decl. ¶ 3; Tomcik 7/16 Decl. ¶ 9.) Plaintiff and its
26 expert should be well aware that such a deletion works on the online Dropbox account as well as
27
28 In a previous declaration, Mr. Tomcik referred to this device (b) as a “laptop,” but
he has confirmed that “desktop” is a more accurate description. (Tomcik 7/16 Decl. ¶ 8.)
CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
on all computers synched to Dropbox, including Mr. Tomcik’s personal desktop, device (b).
(Tomcik 7/16 Decl. ¶ 9.) To be absolutely clear, as Trace3 feigns confusion, this means the Trace3
files were also deleted on Mr. Tomcik’s personal computer, device (b). (Tomcik 7/16 Decl. ¶ 9.)
Mr. Tomcik has also reviewed this computer and he did not find any of his former work files there.
Id.)
Deleting files from Dropbox did not, however, delete the files on Mr. Tomcik’s personal
media server, device (c), because that machine was turned off. (Tomcik 5/23 Decl. ¶ 3; Tomcik
7/16 Decl. ¶ 10.) As Plaintiff and its expert should know, a computer has to be turned on and
connected to the internet for the Dropbox synch to work, including deletions. (Tomcik 7/16 Decl.
10 ¶ 10.) Device (c), as previously explained, crashed as a result of a power outage on March 8, 2023.
11 (Tomcik 7/16 Decl. ¶ 10.) Mr. Tomcik took it in for repair and it was returned to him in a sealed
12 box on May 6, 2023. (Tomcik 7/16 Decl. ¶ 10.) At Trace3’s insistence, no files were removed
13 from this machine, but Mr. Tomcik would gladly do so as soon as Trace3 gives approval. (Tomcik
14 7/16 Decl. ¶ 10.)
15 Trace3 speculates that “it is entirely possible that Tomcik disabled syncing of this
16 information with his Trace3 devices, but continued to sync it among his personal devices.” (T3
17 Motion 11:19-20). This sentence not only contains pure speculation, but confuses synching with
18 deletions. Mr. Tomcik continues to synch Dropbox across his personal devices. (Tomcik 7/16
19 Decl. ¶ 13.) It is his account and he uses it to store personal information. (Tomcik 7/16 Decl. ¶
20 13.) However, to be clear, he deleted all Trace3 files from his Dropbox, which also deleted them
21 from all computers synched to Dropbox, except to the extent any are found on his media server,
22 device (c). (Tomcik 7/16 Decl. ¶ 13.)
23 Device (a), Mr. Tomcik’s work laptop, has been returned to Trace3, as it acknowledges.
24 Devices (b) and (c), Mr. Tomcik’s home computer and media server, as well as his Dropbox
25 account, have been provided to an expert for forensic imaging pursuant to the Court’s May 23,
26 2023 Order, and have been returned to Mr. Tomcik. (Tomcik 7/16 Decl. ¶ 8.) Sycomp’s
27 independent expert has reviewed the files on devices (b) and (c), and in his Dropbox account, and
28 confirmed that none of the nine files Trace3 identified as containing its trade secrets were present.
10
CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
(Defendant Sycomp’s June 12, 2023 Statement Regarding Forensic Search at 2:9.) The only file
found was a “false positive” – on a device that has not been used since March 8, 2023 – and this
issue is addressed in detail in Sycomp’s Opposition. No files were retained on this device (c)
intentionally – as explained multiple times, they are only there because the machine crashed and
was sitting in a sealed box from the repair shop. (Defendant Sycomp’s June 12, 2023 Statement at
3:7-20.)
Trace3 also addresses a few files that were once on Mr. Tomcik’s Dropbox account, and
are now deleted. (T3 Motion 11:26–12:8.) To the best of his knowledge Mr. Tomcik no longer
has access to any of these files, except if they are on device (c) as explained above (in which case
10 they have been imaged), but Mr. Tomcik believes copies of all of those files would be available in
11 his former Trace3 email. (Tomcik 7/16 Decl. ¶ 11, 14.)
12 USB devices. Trace3 also feigns alarm about two USB devices that had been connected to
13 Mr. Tomcik’s work laptop. (T3 Motion 10:16-18.) The newly-identified drive is addressed above.
14 As to the second, while Trace3 claims to not know which drive was destroyed (T3 Motion 10:26-
15 11:4), Mr. Tomcik already confirmed that the device he destroyed had indeed been the same one
16 connected to his work computer. (Tomcik 5/18 Decl. 3, Tomcik 5/23 Decl. ¶ 4.) He explained it
17 was a personal device, which he used as a backup for his work at Trace3 and which likely contained
18 a copy of his work email, of build documents that were also present in Trace3’s shared drive with
19 Box, and Excel files that had been emailed to his team (as such copies are available in Trace3’s
20 email account). (Tomcik 5/18 Decl ¶ 3; Tomcik 5/23 Decl. ¶ 4.) Not only are all of these files
21 available to Trace3 in its own email files and Box account, but Mr. Tomcik further clarified that an
22 additional copy of those files might be available in the files recovered from his media desktop
23 server (device (c) above). (Tomcik Decl. ¶ 3.) Trace3 does not explain why this USB drive should
24 have been “returned” to it (T3 Motion 10:20), when it was not its property to begin with. To the
25 extent Trace3 would like the files on that device, however, all of the files should be in its own
26 system.
27 Trace3’s prior response to Mr. Tomcik’s attempts to assuage its concerns gives up the game.
28 The Individual Defendants offered to have Mr. Tomcik’s devices reviewed by an independent
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CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
expert, but Trace3 refused, insisting that only Trace3 be permitted to inspect a device it does not
dispute contains both Mr. Tomcik’s personal and professional files. (Tomcik 5/23 Decl. ¶ 3.)
Trace3’s unwillingness to accept a resolution that will address its professed issues, while protecting
Mr. Tomcik’s reasonable expectation of privacy, demonstrates that Trace3 is not sincerely worried
about the theft of its trade secrets. It is worried about immiserating any employees who would
consider departing for a competitor.
B. This Dispute Is Entirely Of Trace3’s Making Because Trace3 Did Not Permit
The Individual Defendants To Get Rid Of Their Trace3 Files When They Left
The Company
The only reason the Individual Defendants still have any Trace3 documents is due to
10
Trace3’s own actions. The Individual Defendants gave their two-week notices on April 16 and 17,
11
but instead of being allowed to wind down their work activities, their employment was immediately
12
terminated. (Cordell 5/18 Decl. ¶ 2; Peterson 5/18 Decl. ¶ 2; Tomcik 5/18 Decl. ¶ 2.) Just a few
13
days later, on April 21, Trace3 sent cease and desist letters to the Individual Defendants, asking
14
them not only to return Trace3 devices, but also to preserve and not delete any Trace3 documents
15
they may have. (Agre Decl. Ex. 5, May 18, 2023 Declaration of William Rainey ¶ 3, Ex. A.)
16
While the Individual Defendants sent back physical devices belonging to Trace3, some files
17
are on their own personal devices, which also contain personal files, or in cloud storage. (See
18
Tomcik 7/16 Decl. ¶ 8; Cordell 5/18 Decl. ¶¶ 4-5; Peterson 5/18 Decl. ¶¶ 7-8.) In the normal course
19
of switching jobs in 2023, an employee would delete old company files from personal devices, but
20
Trace3’s April 21 cease and desist letters asked the Individual Defendants not to delete anything.
21
Now they are between a rock and a hard place – Trace3 complains that they still have the files, but
22
complains even more vigorously about the few files that were deleted. None of these former
23
employees need or want their former work files, and will gladly delete them as soon as they get
24
approval to do so. (Tomcik 7/16 Decl. ¶¶ 8-11; Cordell 7/16 Decl. ¶ 7; Peterson 7/16 Decl. ¶ 11.)
25
C. None of the File Deletions Constitutes Spoliation
26
Finally, although Plaintiff repeatedly alleges that the Individual Defendants “spoliated” its
27
Trade Secrets (see T3 Motion 6:20,14:10), and focuses a considerable part of its expert’s efforts on
28
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CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
deletions, Plaintiff has not made any such showing.
As a threshold matter, California does not recognize a cause of action for intentional
spoliation of evidence. See Cedars-Sinai Med. Ctr. v. Superior Ct., 18 Cal. 4th 1 (1998).
Nevertheless, in discussing the non-tort remedies that seek to punish and deter the intentional
spoliation of evidence, the Court in Cedars-Sinai explained that Evidence Code Section 413 sets
forth an evidentiary inference “that evidence which one party has destroyed or rendered
unavailable was unfavorable to that party. Id. at 11 (emphasis added). The standard California
jury instructions include an instruction on this inference as well: You may consider whether one
party intentionally concealed or destroyed evidence. If you decide that a party did so, you may
10 decide that the evidence would have been unfavorable to that party. Judicial Council of California
11 Civil Jury Instructions (“CACI”) 204.
12 Inherent in this inference is that the evidence at hand has been rendered unavailable. See
13 Cedars-Sinai; see also, e.g., Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766 (9th Cir. 2015) (“[I]t
14 is the moving party’s burden to establish that the opposing party destroyed evidence relevant to the
15 case and unavailable through other sources.”); Erhart v. Bofl Holding, Inc., 2016 WL 5110453
16 (S.D. Cal. Sept. 21, 2016) (“[E]ven if spoliation ha[d] occurred . . . [defendant] ha[d] not suffered
17 any meaningful prejudice . . . only a fraction of the files on plaintiff's laptop ha[d] been destroyed,”
18 and “for many of the files that ha[d] been permanently deleted from the laptop, there [were]
19 identical copies in defendant's possession.”) (emphasis added).
20 Here, it is without question that none of the Individual Defendants destroyed or otherwise
21 rendered unavailable any of the information referenced in Trace3’s Application, which, in any
22 event, is in no way unfavorable to them. Rather, any instance of deletion was the result of an
23 attempt to comply with Trace3’s cease-and-desist letter. Moreover, Trace3 has access to copies of
24 all of the information that it purports was spoliated. Deletion is not de facto spoliation, especially
25 where, as here, Plaintiff has unfettered access to the relevant files and information. Accordingly,
26 Plaintiff does not explain why any of these deletions would qualify for any relief, much less
27 emergency relief.
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CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
III. CONCLUSION
For each of these reasons, and based on the evidence, the Application should be denied.
Dated: July 17, 2023 GLENN AGRE BERGMAN & FUENTES LLP
BY: /s/ Lyn R. Agre
Lyn R. Agre
Edward E. Shapiro
Attorneys for Individual Defendants
Timothy Cordell, Lilian Elias,
Geoffrey Peterson, and Devin Tomcik
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CASE NO. 23CV415833
INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION
Preview
GLENN AGRE BERGMAN & FUENTES LLP LYN R. AGRE (CASBN 178218) EDWARD E. SHAPIRO (CASBN 326182) 44 Montgomery Street, Suite 2410 San Francisco, CA 94104 Telephone: (415) 599-0880 lagre@glennagre.com eshapiro@glennagre.com Attorneys for Individual Defendants Geoff Peterson, Timothy Cordell, Lilian Elias, and Devin Tomcik SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA TRACE3, LLC, a California limited liability CASE NO. 23CV415833 company, Assigned to: Hon. Sunil R. Kulkarni INDIVIDUAL DEFENDANTS’ Plaintiff, OPPOSITION TO PLAINTIFF TRACE3, LLC’S MOTION TO MODIFY TEMPORARY RESTRAINING ORDER AND ORDER AUTHORIZING SYCOMP A TECHNOLOGY COMPANY, EXPEDITED DISCOVERY INC., a California corporation; TIMOTHY CORDELL, an individual; LILIAN ELIAS, an REDACTED individual; GEOFF PETERSON, an individual; DEVIN TOMCIK, an individual; and DOES 1- Date: July 28, 2023 10, inclusive; Time: 9:00 a.m. Dept: 1 Defendants. Action Filed: May 12, 2023 CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’ MOTION FOR RECONSIDE ATION TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... ii I. INTRODUCTION ............................................................................................................. 1 II. DISCUSSION .................................................................................................................... 2 A. Trace3 Does Not Allege Any New Facts About The Individual Defendants That Would Warrant The Extraordinary Relief Plaintiff Is Seeking ..................... 2 1. Trace3 Has Identified No Trade Secrets In Geoffrey Peterson’s Possession .................................................................................................. 2 2. Trace3 Has Identified No Trade Secrets In Timothy Cordell’s Possession .................................................................................................. 5 10 3. Trace3 Has Identified No Trade Secrets In Devin Tomcik’s 11 Possession .................................................................................................. 8 12 B. This Dispute Is Entirely Of Trace3’s Making Because Trace3 Did Not Permit The Individual Defendants To Get Rid Of Their Trace3 Files When 13 They Left The Company ...................................................................................... 12 14 C. None of the File Deletions Constitutes Spoliation ............................................... 12 15 III. CONCLUSION ................................................................................................................ 14 16 17 18 19 20 21 22 23 24 25 26 27 28 |i CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’ MOTION FOR RECONSIDERATION TABLE OF AUTHORITIES Page(s) Cases Cedars-Sinai Med. Ctr. v. Superior Ct., 18 Cal. 4th 1 (1998) ............................................................................................................. 12, 13 Erhart v. Bofl Holding, Inc., 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016) ........................................................................... 13 Ryan v. Editions Ltd. W., Inc., 786 F.3d 754 (9th Cir. 2015)...................................................................................................... 13 Other Authorities 10 Judicial Council of California Civil Jury Instructions ("CACI") ................................................... 13 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 |ii CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’ MOTION FOR RECONSIDERATION Defendants Geoffrey Peterson, Timothy Cordell, and Devin Tomcik (collectively, “the Individual Defendants”) hereby join in Sycomp Technology Company, Inc.’s (“Sycomp”) July 17, 2023 Opposition To Plaintiff Trace3, LLC’s (“Trace3” or “Plaintiff”) Motion For Reconsideration Of Temporary Restraining Order, and incorporate the factual background and legal arguments in that Opposition as if fully set forth herein. In addition, the Individual Defendants add the following information and argument for this Court’s consideration. I. INTRODUCTION Plaintiff has submitted thousands of pages of documents to this Court, yet alleges very few actual facts about the Individual Defendants. These facts paint a story not of any 10 “conspiracy” to steal trade secrets from Plaintiff, but rather one of how employees work 11 electronically in the modern age (and through COVID-19 lockdowns): they work from home, the 12 office, and on the road, from desktops and laptops, while storing files on computers, removable 13 media, and on cloud storage devices. All of the Trace3 documents that Plaintiff alleges the 14 Individual Defendants “stole” were in fact downloaded or copied as part of the former 15 employees’ work responsibilities. The only reason the Individual Defendants still have any stray 16 Trace3 files is because Trace3 told the Individual Defendants not to delete those files just a few 17 short days after the Individual Defendants gave notice, and while they were still in the process of 18 separating from their former employer. 19 More importantly to Trace3’s application for emergency relief, Plaintiff does not identify 20 any new facts not previously before the Court, and does not identify any documents purportedly 21 amounting to Trade Secrets that it believes are in any Individual Defendant’s possession. Nor do 22 any of the former employees possess any of the nine files Plaintiff claimed as Trade Secrets in its 23 initial emergency application: all of the Individual Defendants’ devices and Dropbox accounts 24 have been imaged by an outside expert retained by counsel (save one newly-identified thumb 25 drive, which is currently being addressed, as described below). 26 Plaintiff also conflates the alleged retention of sensitive documents with the deletion of 27 documents – likely in an attempt to confuse the issues before this Court. Trace3 does not explain 28 why the deletion of any files would entitle it to emergency relief, or even how it was allegedly CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION harmed, as no files are missing. Nor does the mere deletion of files somehow constitute spoliation, as Trace3 already has at least one copy of any file that was deleted, and in some instances, multiple copies. In each instance where an Individual Defendant deleted a file, it was either part of the normal course of employment or of leaving Trace3’s employment, or an attempt by a nonlawyer to comply with the spirit of Trace3’s cease-and-desist letter. In other words, these former employees cannot win – Trace3 complains that they still have files, but also complains that they deleted files. This is all a problem of Trace3’s own making. There is still no emergency, only normal employee turnover in Silicon Valley. Plaintiff will 10 have to accept that competitors to its business exist and that employees are allowed to change jobs, 11 and its request for a further Temporary Restraining Order should be denied. 12 II. DISCUSSION 13 A. Trace3 Does Not Allege Any New Facts About The Individual Defendants 14 That Would Warrant The Extraordinary Relief Plaintiff Is Seeking 15 Although Trace3 maintains it requires modified and continued immediate relief due to an 16 alleged theft of its trade secrets, it repeatedly conflates document deletion with document 17 retention, likely in an attempt to obfuscate its complete lack of evidence (see, e.g., Trace3’s 18 Memorandum of Points and Authorities in Support of its Motion to Modify Temporary 19 Restraining Order and Order Authorizing Expedited Discovery (“T3 Motion”), 7:24-25, referring 20 to files “copied, deleted, moved and/or diverted”). When analyzing the two issues separately, it is 21 clear that the only straggling Trace3 files the Individual Defendants still have (a) do not contain 22 any trade secrets, and (b) only remain in their possession because Trace3 insists that they not 23 delete the files. 24 1. Trace3 Has Identified No Trade Secrets In Geoffrey Peterson’s Possession 25 26 Plaintiff offers no new evidence or argument pertaining to Geoffrey Peterson, as all of the 27 alleged copying and data storage devices were addressed and disclosed in the last go-round. 28 Compare T3 Motion 12:10-24, with Sycomp’s May 19, 2023 Opposition to Trace3’s Ex Parte CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION Application 11:9-21 and May 18, 2023 Declaration of Geoffrey Peterson (“Peterson 5/18 Decl.”).) Indeed, Plaintiff’s expert does not even address Mr. Peterson at all in his declaration and report. (See generally July 6, 2023 Declaration of Sergio Kopelev (“Kopelev 7/6 Decl.”), Ex. A.) Nor does Plaintiff even allege Mr. Peterson has any of its trade secrets. The only allegations Plaintiff makes about Geoffrey Peterson’s possession of documents pertains to an old Western Digital hard drive he located while preparing his last declaration, which has approximately 3,500 Groupware files, the most recent of which was dated July 29, 2016. (T3 Motion 12:22-24; see Peterson 5/18 Decl. ¶ 7; July 16, 2023 Declaration of Geoffrey Peterson 10 (“Peterson 7/16 Decl.”) ¶ 11.) These seven-year-old files, from Trace3’s predecessor, are very 11 unlikely to contain any of Trace3’s trade secrets, and indeed Trace3 does not allege they do. (T3 12 Motion, ibid.) Further, Defendants’ independent expert previously imaged this hard drive and 13 confirmed it does not contain any of the nine files Trace3 originally identified as containing its 14 trade secrets. (See Sycomp’s Opposition Brief, filed concurrently.) These files are not only a 15 complete non-issue and red herring, they were also fully addressed at the hearing. (See July 7, 16 2023 Declaration of Nicole S. Phyllis, Ex. E (Transcript of May 23, 2023 Hearing on Plaintiff’s 17 ex parte Application for a Temporary Restraining Order (“May TRO Tr.”) at 28:9-26; 32:1- 18 33:8.)) 19 Mr. Peterson has offered to delete these old files, or to handle them as directed (Peterson 20 5/18 Decl. ¶ 7; Peterson 7/16 Decl. ¶ 11), but Trace3 has issued no such instruction. (The hard 21 drive is his personal property and contains personal photos and files that he wishes to retain.) Yet, 22 the moment Trace3 says the word, the disputed files will be gone. 23 All of Plaintiff’s remaining allegations about Mr. Peterson have to do with documents he 24 does not have. First, Trace3 complains that he connected “five” different USB devices to his work 25 laptop, yet only returned two (T3 Motion 12:19-21, 17:14-15), implying that he must still have the 26 remaining three thumb drives in his possession. (Notably, Plaintiff does not identify any alleged 27 28 Each of the Individual Defendants’ previously submitted declarations are attached to their respective July 16, 2023 declarations. CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION trade secrets present on any of these thumb drives.) This speculation ignores the reality of how thumb drives are used and shared among work colleagues, and as Mr. Peterson attests, these thumb drives are most likely in Trace3’s possession and were only ever borrowed by him temporarily. (Peterson 7/16 Decl. ¶ 10.) In any case, as he previously attested, he has searched all the thumb drives in his possession, and none contain Trace3 information. (Peterson 5/18 Decl. ¶ 6; Peterson 7/16 Decl. ¶ 9.) Next, Trace3 complains about documents that Mr. Peterson returned to Plaintiff. Trace3 alleges in several instances that Mr. Peterson “admitted” to taking Trace3 Build Documents so he could continue to support Trace3 clients (T3 Motion 7:4-6, 12:10-15, 17:11-13) – the implication 10 being that he planned to use those documents to support Trace3’s clients on behalf of Sycomp. This 11 implication grossly misstates Mr. Peterson’s declaration, what counsel wrote to Trace3’s counsel 12 in a May 8, 2023 letter, and what counsel shared with the Court at the May 22, 2023 hearing. (See 13 May TRO Tr. at 31:27-33:8; May 18 Declaration of Rajiv Dharnidharka (“RD 5/18 Decl.”), Ex. 14 5.) 15 To clarify, Mr. Peterson stated he downloaded (and then returned) the documents “so that I 16 would not be leaving Trace3 customers or my soon-to-be former colleagues at Trace3 high and 17 dry” because he expected that his former Trace3 colleagues might contact him after his departure 18 with questions, and he believed that having these documents would help him answer those 19 questions to help former Trace3 customers and colleagues. (Peterson 7/16 Decl. ¶ 4.) As he stated 20 on May 18, “I did not have any intention of ‘stealing’ this data or using it in any manner contrary 21 to Trace3’s interests.” (Peterson 5/18 Decl. ¶ 4.) As he repeats now, “I never had any intention of 22 using any of these documents for Sycomp.” (Peterson 7/16 Decl. ¶ 4.) 23 Also false is Trace3’s allegation that some of these documents relate to customers with 24 whom he had no contact, namely, , and . (T3 Motion 7:4-6, 12:15-18; July 7, 25 2023 Declaration of Jeremy Morris (“Morris Decl.”) ¶ 14.) Mr. Peterson did work for both of those 26 clients while at Trace3. (Peterson 7/16 Decl. ¶ 5.) His intention for downloading documents related 27 to these customers was the same as with the others – to answer any questions former colleagues 28 Annexed hereto as Exhibit 1 to the Declaration of Lyn R. Agre (“Agre Decl.”). CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION may have regarding these customer builds. Id. In any event, as he explained: “I sent the external hard drive that contained the information I had downloaded back to Trace3 on April 28, 2023, which was three days prior to my first day of work at Sycomp.” (Peterson 5/18 Decl. ¶ 4) (emphasis added). He “no longer [has] any of these documents.” (Peterson 7/16 Decl. ¶ 6.) Trace3 speculates that Mr. Peterson used Trace3 Build Documents to draft new documents at Sycomp. (T3 Motion 12:26–13:3.) This speculation appears to be based on Trace3’s mistaken belief that Sycomp is new to the Rack & Stack industry, but as explained in Sycomp’s Opposition, it has years of expertise in this industry. Moreover, Mr. Peterson no longer has these Trace3 10 documents. All build documents he has drafted (and all other work performed) while at Sycomp 11 has been started from scratch, using Sycomp’s Build Documents templates, hardware manufacturer 12 documentation, and specifications provided by customers, without reference to anything from 13 Trace3. (Peterson 7/16 Decl. ¶ 7.) 14 Trace3’s allegation that “ is in the process of moving deals to Sycomp through 15 (vendor), pertaining to the same opportunities reflected in the Build Documents taken by Geoffrey 16 Peterson in Exhibit B. (Id., ¶ 23.)” is likewise off the mark. (T3 Motion 13:10-12.) Any Trace3 17 build documents Mr. Peterson may have previously downloaded were returned when he 18 returned the hard drive, thus there are no “Build Documents taken by Geoffrey Peterson in Exhibit 19 B.”. (Peterson 7/16 Decl. ¶ 8.) The new build documents he worked on at Sycomp have 20 also been drafted from scratch, using Sycomp's Build Documents templates, hardware 21 manufacturer documentation, and specifications provided by the customer, without reference to 22 anything from Trace3. (Peterson 7/16 Decl. ¶ 8.) 23 2. Trace3 Has Identified No Trade Secrets In Timothy Cordell’s Possession 24 25 Plaintiff likewise raises no new issues regarding Trace3 documents in Mr. Cordell’s 26 possession. The only old Trace3 files in Mr. Cordell’s possession or control are in a Dropbox 27 account, and he is unable to delete them because of Trace3’s insistence that he not do so. Trace3’s 28 purported concern and alarm that he might continue to access these files is a problem of its own CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION making. As Defendants previously explained, on the evening of April 24 (California time) Mr. Cordell discovered that he had inadvertently copied Trace3 files to his partner’s Dropbox account while he had been attempting to move personal files off his work laptop. (May 18, 2023 Declaration of Timothy Cordell (“Cordell 5/18 Decl.”) ¶ 5.) His first instinct was to delete the files, but then he caught himself and left the remainder. (Id.) Nothing about these files is new. Trace3 has known about the existence of these files since at least May, and they were discussed in the initial briefing and at the hearing. (T3’s May 18, 2023 Ex Parte Motion 17:26-18:10; May TRO Tr. 14:1-3; 21:24- 26.) Moreover, this Dropbox account was imaged by Plaintiff’s expert on June 1 (Kopelev 7/6 10 Decl. Ex. A ¶ 25), yet Plaintiff identifies not a single trade secret file in that account (instead 11 choosing to mislead the Court by focusing on the five files he deleted, addressed below). Since 12 that time, Trace3 has not made any request to Mr. Cordell that the Dropbox files be deleted. 13 Now, Trace3 claims to have “discovered” that the Dropbox account can be accessed from 14 devices other than a Trace3 work computer, and uses this supposed new discovery to articulate its 15 “concern” that “Cordell may continue to access the same devices to misappropriate Trace3 data.” 16 (T3 Motion 9:22-10:2.) But this “discovery” is merely a pretense to relitigate Trace3’s TRO, as it 17 is well known that Dropbox can be accessed from any device connected to the internet, if the user 18 has the required credentials. (July 17, 2023 Declaration of James Vaughn (“Vaughn 7/17 Decl.”) 19 ¶ 13.) 20 Further, this is again a problem of Trace3’s own making. Mr. Cordell does not need or 21 want any of these files. (July 16, 2023 Declaration of Timothy Cordell (“Cordell 7/16 Decl.”) ¶ 7.) 22 It was only Trace3’s own cease-and-desist letter, which insisted that Mr. Cordell “preserve” any 23 files he may have, that stopped him from deleting the files in the first place. (Cordell 5/18 Decl. ¶ 24 5.) If Trace3 would allow him or his partner to delete the files, all of Trace3’s “concerns” would 25 To answer Plaintiff’s irrelevant question, Mr. Cordell used his iPhone to access the 26 Dropbox account. He did not save any files to his phone, he has not accessed the Dropbox account since that time, and to his best recollection he only ever accessed that Dropbox account 27 from his work laptop and his phone. Both his phone and the Dropbox account have been provided to an expert for forensic imaging pursuant to the Court’s May 23, 2023 Order. (Cordell 28 7/16 Decl. ¶ 8.) CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION be alleviated. (Cordell 7/16 Decl. ¶ 9.) In any case, he has not accessed the Dropbox account since April 24 (California time) and will not do so until instructed to do so by counsel or the Court. (Cordell 7/16 Decl. ¶ 9.) While Trace3 is “concerned” about files saved to Dropbox, it also inexplicably complains at length that five of the files have been deleted. (T3 Motion 8:28-9:2.) It remains a mystery why any of these deletions could support an application for emergency relief, but in any event, no files have been lost. In his May 18 Declaration, Mr. Cordell shared that the files would be available for 30 days from April 24. (Cordell 5/18 Decl. ¶ 5.) At no time did Trace3 ask counsel or Mr. Cordell to retrieve the files. Mr. Cordell did not even know that he could enable or disable the auto-delete 10 feature in Dropbox until very recently. (Cordell 7/16 Decl. ¶ 3.) 11 During those 30 days, Trace3 had full access to that Dropbox account. The account was 12 owned by Mr. Cordell’s partner, S.T., a (now former) Trace3 employee, and Trace3 paid for it and 13 thus could have accessed the files at any time. (Agre Decl. Ex. 2, S.T. Deposition Transcript 14 Excerpt.) Instead, on May 12, Trace3 instructed S.T. not to touch the account or to allow anyone 15 else access to the account. (Agre Decl. Ex. 3, at ST000049.) Then, apparently after reviewing 16 Mr. Cordell’s May 18 declaration, where he made clear the files “are retrievable for 30 days in 17 Dropbox,” Trace3 reiterated to S.T. on May 19 that she was not to access the Dropbox account. 18 (Agre Decl. Ex. 4, at ST00095-96.) Trace3 took and imaged S.T.’s computer on May 24, before 19 the deletion was made permanent, but again declined to access her Dropbox account at that time. 20 (7/6 Kopelev Decl., Ex. A ¶ 29). It was Trace3’s own choice to forbid the account owner to access 21 the account or allow Mr. Cordell to access it, while not imaging the account while the deleted files 22 were still available - apparently all to manufacture a dispute where none exists. 23 Regardless, nothing has been deleted, and thus there is no “spoliation.” (Cordell 7/16 Decl. 24 ¶ 4.) As Mr. Cordell explained, the way the files got to Dropbox in the first place is he hurriedly 25 copied them there from his work laptop while he was attempting to copy personal files. (Cordell 26 5/18 Decl. ¶¶ 4-5; Cordell 7/16 Decl. ¶ 4.) Thus, exact copies of those files should be found on his 27 work laptop, which was returned to Trace3. (Cordell 7/16 Decl. ¶ 4.) Indeed, Trace3’s own 28 expert admits he found these exact files on Mr. Cordell’s work laptop. (7/6 Kopelev Decl. ¶ CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION 11) (“Forensic examination also revealed that five (5) files / documents with the same file names as those deleted from the Dropbox account (¶10) were found on ES0029.”) Additional copies of these files can be found in Mr. Cordell’s former Trace3 email account, and in the email accounts of other Trace3 employees. (Cordell 7/16 Decl. ¶ 5.) And Trace3’s protests that the five deleted files contain “incredibly sensitive” and “textbook Trace3 Trade Secret” information (T3 Motion 9:5-7) are simply misdirection, because regardless of how “sensitive” the files are, they were deleted, and Mr. Cordell does not have access to any of them. (Cordell 7/16 Decl. ¶ 6.) Finally, Trace3’s allegation that it “lost” deals to Sycomp merely describes the reality of competitive businesses. Since joining Sycomp, Mr. Cordell learned that 10 Sycomp was already working on deals for . (Cordell 7/16 Decl. ¶ 10.) Mr. Cordell 11 did not use any materials from Trace3 in pursuit of , or any other deals, while 12 working at Sycomp. Id. 13 3. Trace3 Has Identified No Trade Secrets In Devin Tomcik’s Possession 14 The only new issue in Trace3’s entire brief that has not been previously addressed is 15 Trace3’s allegation that Mr. Tomcik attached a second USB device to his work laptop back in 16 February. (T3 Motion 10:16-19; Kopelev 5/18 Decl. Ex. A ¶ 18). While Mr. Tomcik does not 17 specifically recall doing so, the device Plaintiff’s expert identified has been located and sent to 18 Defendant Sycomp’s expert for forensic imaging pursuant to the Court’s May 23, 2023 Order. (July 19 16, 2023 Declaration of Devin Tomcik (“Tomcik 7/16 Decl.”) ¶ 5.) Mr. Tomcik has not used any 20 files on that device (nor any other Trace3 files) as part of his work at Sycomp. (Tomcik 7/16 Decl. 21 ¶ 5.) Trace3 has not identified any alleged trade secrets purportedly copied to this device, nor does 22 Trace3 explain how this thumb drive, last used in February, could be the basis for any emergency 23 relief. 24 All of the remaining issues Trace3 raises about Mr. Tomcik have been previously 25 addressed. 26 27 Trace3’s prior brief referred only to a single USB device. Trace3’s May 18, 2023 28 Ex Parte application, 17:3. The only reference to a second device was buried in their expert’s declaration. CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION Dropbox. Trace3 first complains that Mr. Tomcik’s Dropbox files were mirrored to other of Mr. Tomcik’s devices, supposedly “without explanation.” (T3 Motion 11:6-25.) But the mirroring of his account was done as part of his normal work at Trace3, was disclosed in letters from counsel, in his prior declaration, and in the briefing, was discussed at the TRO hearing, and is also in the nature of how Dropbox works. (Tomcik 7/16 Decl. ¶¶ 3, 8-10; May 18, 2023 Declaration of Devin Tomcik (“Tomcik 5/18 Decl.”) ¶ 4; Sycomp’s May 19, 2023 Opposition Brief to Ex Parte Application 11:22–12:4, citing RD 5/18 Decl. Ex. 5; May TRO Tr. at 12-13.) Plaintiff alleges nothing new. As Mr. Tomcik and his counsel have now explained at least four times, he used his personal 10 Dropbox account to mirror personal and work files across three different devices: (a) a work laptop, 11 which he used primarily while traveling, (b) a personal desktop, which he used for work while he 12 worked from home, and (c) his personal media server that he primarily used to watch movies. (See 13 Tomcik 5/18 Decl. ¶ 4; Tomcik 7/16 Decl. ¶ 8.) For ease of reference and clarity, the Individual 14 Defendants will continue to refer to these computers as devices (a), (b), and (c), respectively. 15 Mr. Tomcik saved Trace3 work files to his Dropbox account to help facilitate his work at 16 Trace3 as part of his normal work duties, not to “misappropriate” any files as Trace3 now claims, 17 and his use was well known to Trace3. (T3 Motion 10:16-11:11; Tomcik 7/16 Decl. ¶ 8.) His 18 Trace3 work files were mirrored to his personal desktop computer (b) because he used it for work 19 when he worked from home. (Tomcik 7/16 Decl. ¶ 8.) The files were also incidentally mirrored 20 to his personal media server (c) because he used the same Dropbox account for work and for his 21 personal files. (Tomcik 7/16 Decl. ¶ 8.) Nothing about this is mysterious or new (T3 Motion 11:7) 22 - this is how Mr. Tomcik did his work for Trace3 while he was employed there, as previously 23 disclosed. (Tomcik 5/18 Decl. ¶ 3-4; May 23, 2023 of Devin Tomcik (“Tomcik 5/23 Decl.”) ¶ 3.) 24 As Mr. Tomcik previously explained, when he left Trace3, he deleted all Trace3 files from 25 his personal Dropbox account. (Tomcik 5/18 Decl. ¶ 3; Tomcik 7/16 Decl. ¶ 9.) Plaintiff and its 26 expert should be well aware that such a deletion works on the online Dropbox account as well as 27 28 In a previous declaration, Mr. Tomcik referred to this device (b) as a “laptop,” but he has confirmed that “desktop” is a more accurate description. (Tomcik 7/16 Decl. ¶ 8.) CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION on all computers synched to Dropbox, including Mr. Tomcik’s personal desktop, device (b). (Tomcik 7/16 Decl. ¶ 9.) To be absolutely clear, as Trace3 feigns confusion, this means the Trace3 files were also deleted on Mr. Tomcik’s personal computer, device (b). (Tomcik 7/16 Decl. ¶ 9.) Mr. Tomcik has also reviewed this computer and he did not find any of his former work files there. Id.) Deleting files from Dropbox did not, however, delete the files on Mr. Tomcik’s personal media server, device (c), because that machine was turned off. (Tomcik 5/23 Decl. ¶ 3; Tomcik 7/16 Decl. ¶ 10.) As Plaintiff and its expert should know, a computer has to be turned on and connected to the internet for the Dropbox synch to work, including deletions. (Tomcik 7/16 Decl. 10 ¶ 10.) Device (c), as previously explained, crashed as a result of a power outage on March 8, 2023. 11 (Tomcik 7/16 Decl. ¶ 10.) Mr. Tomcik took it in for repair and it was returned to him in a sealed 12 box on May 6, 2023. (Tomcik 7/16 Decl. ¶ 10.) At Trace3’s insistence, no files were removed 13 from this machine, but Mr. Tomcik would gladly do so as soon as Trace3 gives approval. (Tomcik 14 7/16 Decl. ¶ 10.) 15 Trace3 speculates that “it is entirely possible that Tomcik disabled syncing of this 16 information with his Trace3 devices, but continued to sync it among his personal devices.” (T3 17 Motion 11:19-20). This sentence not only contains pure speculation, but confuses synching with 18 deletions. Mr. Tomcik continues to synch Dropbox across his personal devices. (Tomcik 7/16 19 Decl. ¶ 13.) It is his account and he uses it to store personal information. (Tomcik 7/16 Decl. ¶ 20 13.) However, to be clear, he deleted all Trace3 files from his Dropbox, which also deleted them 21 from all computers synched to Dropbox, except to the extent any are found on his media server, 22 device (c). (Tomcik 7/16 Decl. ¶ 13.) 23 Device (a), Mr. Tomcik’s work laptop, has been returned to Trace3, as it acknowledges. 24 Devices (b) and (c), Mr. Tomcik’s home computer and media server, as well as his Dropbox 25 account, have been provided to an expert for forensic imaging pursuant to the Court’s May 23, 26 2023 Order, and have been returned to Mr. Tomcik. (Tomcik 7/16 Decl. ¶ 8.) Sycomp’s 27 independent expert has reviewed the files on devices (b) and (c), and in his Dropbox account, and 28 confirmed that none of the nine files Trace3 identified as containing its trade secrets were present. 10 CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION (Defendant Sycomp’s June 12, 2023 Statement Regarding Forensic Search at 2:9.) The only file found was a “false positive” – on a device that has not been used since March 8, 2023 – and this issue is addressed in detail in Sycomp’s Opposition. No files were retained on this device (c) intentionally – as explained multiple times, they are only there because the machine crashed and was sitting in a sealed box from the repair shop. (Defendant Sycomp’s June 12, 2023 Statement at 3:7-20.) Trace3 also addresses a few files that were once on Mr. Tomcik’s Dropbox account, and are now deleted. (T3 Motion 11:26–12:8.) To the best of his knowledge Mr. Tomcik no longer has access to any of these files, except if they are on device (c) as explained above (in which case 10 they have been imaged), but Mr. Tomcik believes copies of all of those files would be available in 11 his former Trace3 email. (Tomcik 7/16 Decl. ¶ 11, 14.) 12 USB devices. Trace3 also feigns alarm about two USB devices that had been connected to 13 Mr. Tomcik’s work laptop. (T3 Motion 10:16-18.) The newly-identified drive is addressed above. 14 As to the second, while Trace3 claims to not know which drive was destroyed (T3 Motion 10:26- 15 11:4), Mr. Tomcik already confirmed that the device he destroyed had indeed been the same one 16 connected to his work computer. (Tomcik 5/18 Decl. 3, Tomcik 5/23 Decl. ¶ 4.) He explained it 17 was a personal device, which he used as a backup for his work at Trace3 and which likely contained 18 a copy of his work email, of build documents that were also present in Trace3’s shared drive with 19 Box, and Excel files that had been emailed to his team (as such copies are available in Trace3’s 20 email account). (Tomcik 5/18 Decl ¶ 3; Tomcik 5/23 Decl. ¶ 4.) Not only are all of these files 21 available to Trace3 in its own email files and Box account, but Mr. Tomcik further clarified that an 22 additional copy of those files might be available in the files recovered from his media desktop 23 server (device (c) above). (Tomcik Decl. ¶ 3.) Trace3 does not explain why this USB drive should 24 have been “returned” to it (T3 Motion 10:20), when it was not its property to begin with. To the 25 extent Trace3 would like the files on that device, however, all of the files should be in its own 26 system. 27 Trace3’s prior response to Mr. Tomcik’s attempts to assuage its concerns gives up the game. 28 The Individual Defendants offered to have Mr. Tomcik’s devices reviewed by an independent 11 CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION expert, but Trace3 refused, insisting that only Trace3 be permitted to inspect a device it does not dispute contains both Mr. Tomcik’s personal and professional files. (Tomcik 5/23 Decl. ¶ 3.) Trace3’s unwillingness to accept a resolution that will address its professed issues, while protecting Mr. Tomcik’s reasonable expectation of privacy, demonstrates that Trace3 is not sincerely worried about the theft of its trade secrets. It is worried about immiserating any employees who would consider departing for a competitor. B. This Dispute Is Entirely Of Trace3’s Making Because Trace3 Did Not Permit The Individual Defendants To Get Rid Of Their Trace3 Files When They Left The Company The only reason the Individual Defendants still have any Trace3 documents is due to 10 Trace3’s own actions. The Individual Defendants gave their two-week notices on April 16 and 17, 11 but instead of being allowed to wind down their work activities, their employment was immediately 12 terminated. (Cordell 5/18 Decl. ¶ 2; Peterson 5/18 Decl. ¶ 2; Tomcik 5/18 Decl. ¶ 2.) Just a few 13 days later, on April 21, Trace3 sent cease and desist letters to the Individual Defendants, asking 14 them not only to return Trace3 devices, but also to preserve and not delete any Trace3 documents 15 they may have. (Agre Decl. Ex. 5, May 18, 2023 Declaration of William Rainey ¶ 3, Ex. A.) 16 While the Individual Defendants sent back physical devices belonging to Trace3, some files 17 are on their own personal devices, which also contain personal files, or in cloud storage. (See 18 Tomcik 7/16 Decl. ¶ 8; Cordell 5/18 Decl. ¶¶ 4-5; Peterson 5/18 Decl. ¶¶ 7-8.) In the normal course 19 of switching jobs in 2023, an employee would delete old company files from personal devices, but 20 Trace3’s April 21 cease and desist letters asked the Individual Defendants not to delete anything. 21 Now they are between a rock and a hard place – Trace3 complains that they still have the files, but 22 complains even more vigorously about the few files that were deleted. None of these former 23 employees need or want their former work files, and will gladly delete them as soon as they get 24 approval to do so. (Tomcik 7/16 Decl. ¶¶ 8-11; Cordell 7/16 Decl. ¶ 7; Peterson 7/16 Decl. ¶ 11.) 25 C. None of the File Deletions Constitutes Spoliation 26 Finally, although Plaintiff repeatedly alleges that the Individual Defendants “spoliated” its 27 Trade Secrets (see T3 Motion 6:20,14:10), and focuses a considerable part of its expert’s efforts on 28 12 CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION deletions, Plaintiff has not made any such showing. As a threshold matter, California does not recognize a cause of action for intentional spoliation of evidence. See Cedars-Sinai Med. Ctr. v. Superior Ct., 18 Cal. 4th 1 (1998). Nevertheless, in discussing the non-tort remedies that seek to punish and deter the intentional spoliation of evidence, the Court in Cedars-Sinai explained that Evidence Code Section 413 sets forth an evidentiary inference “that evidence which one party has destroyed or rendered unavailable was unfavorable to that party. Id. at 11 (emphasis added). The standard California jury instructions include an instruction on this inference as well: You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may 10 decide that the evidence would have been unfavorable to that party. Judicial Council of California 11 Civil Jury Instructions (“CACI”) 204. 12 Inherent in this inference is that the evidence at hand has been rendered unavailable. See 13 Cedars-Sinai; see also, e.g., Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766 (9th Cir. 2015) (“[I]t 14 is the moving party’s burden to establish that the opposing party destroyed evidence relevant to the 15 case and unavailable through other sources.”); Erhart v. Bofl Holding, Inc., 2016 WL 5110453 16 (S.D. Cal. Sept. 21, 2016) (“[E]ven if spoliation ha[d] occurred . . . [defendant] ha[d] not suffered 17 any meaningful prejudice . . . only a fraction of the files on plaintiff's laptop ha[d] been destroyed,” 18 and “for many of the files that ha[d] been permanently deleted from the laptop, there [were] 19 identical copies in defendant's possession.”) (emphasis added). 20 Here, it is without question that none of the Individual Defendants destroyed or otherwise 21 rendered unavailable any of the information referenced in Trace3’s Application, which, in any 22 event, is in no way unfavorable to them. Rather, any instance of deletion was the result of an 23 attempt to comply with Trace3’s cease-and-desist letter. Moreover, Trace3 has access to copies of 24 all of the information that it purports was spoliated. Deletion is not de facto spoliation, especially 25 where, as here, Plaintiff has unfettered access to the relevant files and information. Accordingly, 26 Plaintiff does not explain why any of these deletions would qualify for any relief, much less 27 emergency relief. 28 13 CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION III. CONCLUSION For each of these reasons, and based on the evidence, the Application should be denied. Dated: July 17, 2023 GLENN AGRE BERGMAN & FUENTES LLP BY: /s/ Lyn R. Agre Lyn R. Agre Edward E. Shapiro Attorneys for Individual Defendants Timothy Cordell, Lilian Elias, Geoffrey Peterson, and Devin Tomcik 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 CASE NO. 23CV415833 INDIVIDUAL DEFENDANTS’ OPPOSITION TO TRACE3’S MOTION FOR RECONSIDERATION