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Rafael Nendel Flores, Esq., SBN: 223358
Guillermo Tello, Esq., SBN: 277896
Katie Sharpless, Esq. SBN:335463
Alejandro Rosa, Esq., SBN: 340410
CLARK HILL LLP
555 South Flower Street, 24th Floor
Los Angeles, CA 90071
Telephone: (213) 891-9100
Facsimile: (213) 488-1178
RNendelFlores@clarkhill.com
GTello@clarkhill.com
KSharpless@clarkhill.com
ARosa@clarkhill.com
Attorneys for Defendant
VARSITY TUTORS LLC
SUPERIOR COURT THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
ALEXANDER CHARLES and Case No.: 19CV347249
HENRY MULAK, as individuals, [Assigned to Hon. Theodore C. Zayner,
Department 19]
Plaintiffs,
DECLARATION OF NICK MORGAN
IN SUPPORT OF DEFENDANT
VARSITY TUTORS’ MOTION FOR
VARSITY TUTORS LLC, SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE MOTION FOR
Defendant. SUMMARY ADJUDICATION
Hearing: October 18, 2023
Time: 1:30 pm
Dept.:
Complaint Filed: May 1, 2019
FAC: May 30, 2019
Trial Date: May 13, 2024
I, NICK MORGAN, declare as follows:
I am Principal Engineer for Live Learning Technologies Shared Resources LLC
(“LLTSR”), the common paymaster and employer of record for United States employees
associated with the operations of Varsity Tutors LLC (“Varsity”) and operations of other related
and affiliated entities. Both LLTSR and Varsity are located at 101 S. Hanley Road, Suite 300, St.
Louis Missouri 63105.
I have been employed as a Principal Engineer since September 1, 2015.
Specifically with Varsity, prior to the reorganization resulting in the creation of the common
1
DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY TUTORS’ MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION
paymaster and employer of record effective in 2019, and with LLTSR effective January 1, 2019.
In my role as a Principal Engineer, I am responsible for a variety of things, including: providing
architectural and technical oversight, designing and implementing complex systems at scale,
mentoring other engineers, helping set the technical direction for the engineering organization at
large, and ensuring high quality, performant, and peer-reviewed code. As part of these job duties,
I have access to the recordings of one-on-one tutoring sessions that take place through Varsity’s
live learning platform (to the extent a customer/student did not opt out of session recordings)
between independent contractor tutors and their respective customers/students – including one-
on-one session recordings that involved Plaintiff (“Session Recordings”).
10
3. In connection with this matter, I was asked to assist with locating one-on-one
11
Session Recordings that involved Plaintiff. To locate these Sessions Recordings, I took the
12
following steps:
13
a. I ran a query against our Live Learning Platform’s database to retrieve and build
14
network paths to the locations of all of Plaintiff’s one-on-one Session Recordings
15
by taking the unique identifier that represents Plaintiff’s user record in our system
16
and querying for all sessions that included said user identifier.
17
b. The query located 1,441 Session Recordings that involved Plaintiff. Of those,
18
1,400 were recovered and 41 were not recoverable because no recordings existed.
19
This can happen because of a technical failure in our recording system, because
20
the customer/student of record requested the recording be deleted, or because the
21
customer/student of record did not want the session(s) to be recorded.
22
c. I then exported the 1,400 query results into a comma-separated values (“CSV”)
23
file, which allowed the Session Recordings to be saved in a tabular format for use
24
and viewing (except as otherwise noted).
25
d. I then prepared and executed a script to loop the CSV files and downloaded each
26
recording to my hard drive from our secure S3 location–a cloud-hosted, secure,
27
and private file storage service–hosted by Amazon Web Services.
28
e. I then uploaded all of the Session Recordings to an online storage site provided by
2
DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY TUTORS’ MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION
Clark Hill LLP. I also created an Index of all Session Recordings in an excel
document listing all file names of the 1,400 Session Recordings. A true and
correct copy of the Index, which I created (and was modified by defense counsel
to add “Bates Numbers” and “Tags” for confidentiality) is attached hereto and is
incorporated by reference as though fully set forth herein as Exhibit 1.
I declare, under penalty of perjury under the laws of the United States of America and of
the State of California, that the foregoing is true and correct.
Executed on this 1 of August 2023 in Suwanee, Georgia.
ICK MORGA
3
DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY TUTORS’ MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION
Doc ID: 52e30cae264074ea7560bf09b64664a021db35d0
PROOF OF SERVICE
Charles v. Varsity Tutors LLC, et al.
Case No. 19CV347249
I am employed in the County of Los Angeles, State of California. I am over the age of 18
years and am not a party to the within action; my business address is 555 South Flower Street, 24th
Floor, Los Angeles, California 90071.
On August 2, 2023, I served a copy of the following document(s) described as:
DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY
TUTORS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE
MOTION FOR SUMMARY ADJUDICATION on the interested parties in this action as
follows:
Steven Tindall, Esq. Attorneys for Plaintiffs
Jeffrey Kosbie, Esq. ALEXANDER CHARLES and
Rosanne L. Mah, Esq. HENRY MULAK
GIBBS LAW GROUP LLP
1111 Broadway, Suite 2100 Email : smt@classlawgroup.com
Oakland, CA 94607 jbk@classlawgroup.com
Telephone: (510) 350-9700 rlm@classlawgroup.com
Facsimile: 9701 lasslaw
BY E-MAIL OR ELECTRONIC TRANSMISSION: By electronically mailing a true
and correct through Clark Hill LLP’s electronic mail system from DVo@ClarkHill.com to
the email addresses set forth above. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
unsuccessful.
I declare under penalty of perjury under the laws of the state of California, that the above
is true and correct.
Executed on August 2, 2023, at Los Angeles, California.
Diane Vo
1
DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY TUTORS’ MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION
Doc ID: 52e30cae264074ea7560bf09b64664a021db35d0
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Rafael Nendel Flores, Esq., SBN: 223358 Guillermo Tello, Esq., SBN: 277896 Katie Sharpless, Esq. SBN:335463 Alejandro Rosa, Esq., SBN: 340410 CLARK HILL LLP 555 South Flower Street, 24th Floor Los Angeles, CA 90071 Telephone: (213) 891-9100 Facsimile: (213) 488-1178 RNendelFlores@clarkhill.com GTello@clarkhill.com KSharpless@clarkhill.com ARosa@clarkhill.com Attorneys for Defendant VARSITY TUTORS LLC SUPERIOR COURT THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ALEXANDER CHARLES and Case No.: 19CV347249 HENRY MULAK, as individuals, [Assigned to Hon. Theodore C. Zayner, Department 19] Plaintiffs, DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY TUTORS’ MOTION FOR VARSITY TUTORS LLC, SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR Defendant. SUMMARY ADJUDICATION Hearing: October 18, 2023 Time: 1:30 pm Dept.: Complaint Filed: May 1, 2019 FAC: May 30, 2019 Trial Date: May 13, 2024 I, NICK MORGAN, declare as follows: I am Principal Engineer for Live Learning Technologies Shared Resources LLC (“LLTSR”), the common paymaster and employer of record for United States employees associated with the operations of Varsity Tutors LLC (“Varsity”) and operations of other related and affiliated entities. Both LLTSR and Varsity are located at 101 S. Hanley Road, Suite 300, St. Louis Missouri 63105. I have been employed as a Principal Engineer since September 1, 2015. Specifically with Varsity, prior to the reorganization resulting in the creation of the common 1 DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY TUTORS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION paymaster and employer of record effective in 2019, and with LLTSR effective January 1, 2019. In my role as a Principal Engineer, I am responsible for a variety of things, including: providing architectural and technical oversight, designing and implementing complex systems at scale, mentoring other engineers, helping set the technical direction for the engineering organization at large, and ensuring high quality, performant, and peer-reviewed code. As part of these job duties, I have access to the recordings of one-on-one tutoring sessions that take place through Varsity’s live learning platform (to the extent a customer/student did not opt out of session recordings) between independent contractor tutors and their respective customers/students – including one- on-one session recordings that involved Plaintiff (“Session Recordings”). 10 3. In connection with this matter, I was asked to assist with locating one-on-one 11 Session Recordings that involved Plaintiff. To locate these Sessions Recordings, I took the 12 following steps: 13 a. I ran a query against our Live Learning Platform’s database to retrieve and build 14 network paths to the locations of all of Plaintiff’s one-on-one Session Recordings 15 by taking the unique identifier that represents Plaintiff’s user record in our system 16 and querying for all sessions that included said user identifier. 17 b. The query located 1,441 Session Recordings that involved Plaintiff. Of those, 18 1,400 were recovered and 41 were not recoverable because no recordings existed. 19 This can happen because of a technical failure in our recording system, because 20 the customer/student of record requested the recording be deleted, or because the 21 customer/student of record did not want the session(s) to be recorded. 22 c. I then exported the 1,400 query results into a comma-separated values (“CSV”) 23 file, which allowed the Session Recordings to be saved in a tabular format for use 24 and viewing (except as otherwise noted). 25 d. I then prepared and executed a script to loop the CSV files and downloaded each 26 recording to my hard drive from our secure S3 location–a cloud-hosted, secure, 27 and private file storage service–hosted by Amazon Web Services. 28 e. I then uploaded all of the Session Recordings to an online storage site provided by 2 DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY TUTORS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION Clark Hill LLP. I also created an Index of all Session Recordings in an excel document listing all file names of the 1,400 Session Recordings. A true and correct copy of the Index, which I created (and was modified by defense counsel to add “Bates Numbers” and “Tags” for confidentiality) is attached hereto and is incorporated by reference as though fully set forth herein as Exhibit 1. I declare, under penalty of perjury under the laws of the United States of America and of the State of California, that the foregoing is true and correct. Executed on this 1 of August 2023 in Suwanee, Georgia. ICK MORGA 3 DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY TUTORS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION Doc ID: 52e30cae264074ea7560bf09b64664a021db35d0 PROOF OF SERVICE Charles v. Varsity Tutors LLC, et al. Case No. 19CV347249 I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and am not a party to the within action; my business address is 555 South Flower Street, 24th Floor, Los Angeles, California 90071. On August 2, 2023, I served a copy of the following document(s) described as: DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY TUTORS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION on the interested parties in this action as follows: Steven Tindall, Esq. Attorneys for Plaintiffs Jeffrey Kosbie, Esq. ALEXANDER CHARLES and Rosanne L. Mah, Esq. HENRY MULAK GIBBS LAW GROUP LLP 1111 Broadway, Suite 2100 Email : smt@classlawgroup.com Oakland, CA 94607 jbk@classlawgroup.com Telephone: (510) 350-9700 rlm@classlawgroup.com Facsimile: 9701 lasslaw BY E-MAIL OR ELECTRONIC TRANSMISSION: By electronically mailing a true and correct through Clark Hill LLP’s electronic mail system from DVo@ClarkHill.com to the email addresses set forth above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the state of California, that the above is true and correct. Executed on August 2, 2023, at Los Angeles, California. Diane Vo 1 DECLARATION OF NICK MORGAN IN SUPPORT OF DEFENDANT VARSITY TUTORS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION Doc ID: 52e30cae264074ea7560bf09b64664a021db35d0