Motion,Ex Parte: Trace3, LLC v. Sycomp, A Technology Company, Inc., et al.

On May 12, 2023 a Motion,Ex Parte was filed involving a dispute between Trace3, Llc, and Devin Tomcik, Geoffrey Peterson, John Barnes, Lilian Elias, Sycomp A Technology Company, Inc., Timothy Cordell, for Business Tort/Unfair Bus Prac Unlimited (07) in the District Court of Santa Clara County.

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NICOLE PHILLIS (State Bar No. 291266)
nicolephillis@dwt.com
DAVIS WRIGHT TREMAINE LLP
865 South Figueroa Street, 24th Floor
Los Angeles, California 90017-2566
Telephone: (213) 633-6800
Fax: (213) 633-6899

JEREMY MERKELSON (Admitted Pro Hac Vice)
jeremymerkelson@dwt.com
DAVIS WRIGHT TREMAINE LLP
1301 K Street NW, Suite 500 East
Washington, D.C., 20005
Telephone: (202) 973-4200
Fax: (202) 973-4499

MARINA GRUBER (State Bar No. 271542)
marinagruber@dwt.com
DAVIS WRIGHT TREMAINE LLP
50 California Street, 23rd Floor
San Francisco, CA 94111
Telephone: (415) 276-6500
Fax: (415) 276-6599

Attorneys for Plaintiff TRACE3, LLC

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA CLARA
TRACE3, LLC, a California limited liability Case No. 23CV415833
corporation, Assigned to Hon. Sunil R. Kulkarni

Plaintiff, PLAINTIFF TRACE3, LLC’S OPPOSITION
TO DEFENDANT SYCOMP A
vs. TECHNOLOGY COMPANY, INC.’S EX
PARTE APPLICATION FOR
SYCOMP A TECHNOLOGY COMPANY, CLARIFICATION AND/OR
INC., a California corporation; TIMOTHY RECONSIDERATION OF AUGUST 7, 2023
CORDELL, an individual; GEOFFREY ORDER GRANTING PLAINTIFF TRACE3,
PETERSON, an individual; DEVIN TOMCIK, LLC’S MOTION TO COMPEL
an individual; and DOES 1-10, inclusive;
Declaration of Nicole Phillis filed concurrently
Defendants.
Date: August 10, 2023
Time: 1:30 p.m.
Dept: 1 (via Teams)

Action Filed: May 12, 2023

RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
TRACE3’S OPPOSITION TO SYCOMP’S EX PARTE APPLICATION FOR LOS ANGELES, CALIFORNIA 90017-2566
RECONSIDERATION AND/OR CLARIFICATION OF ORDER GRANTING MTC (213) 633-6800
Fax: (213) 633-6899
TABLE OF CONTENTS

Page

I. INTRODUCTION .............................................................................................................. 5

II. BACKGROUND ................................................................................................................ 5

A. The Court Grants Trace3’s TRO Application and Authorizes Expedited
Discovery. ............................................................................................................... 5

B. Sycomp Pursues Discovery, While Refusing To Respond to Trace3’s
Requests. ................................................................................................................. 6

C. Sycomp Persists in Its Discovery Objections While the TRO Expires,
Forcing Trace3 To File a Motion for Extension of the TRO, Continue the
Preliminary Injunction Dates, and File a Motion to Compel Discovery. ............... 8

10 D. The Court Grants Trace3’s Motions In Part............................................................ 9

11 E. Sycomp Refuses to Continue the Preliminary Injunction Briefing to Allow
Time for Trace3 to Obtain the Court-Ordered Discovery and Moves for
12 Reconsideration. .................................................................................................... 11

13 III. LEGAL STANDARD ....................................................................................................... 11

14 IV. ARGUMENT .................................................................................................................... 12

15 A. Sycomp Falls Far Short of Meeting Its Burden for Reconsideration or
Clarification. ......................................................................................................... 12
16
B. The Time-Frame In Trace3’s Requests Is Appropriately Narrow. ....................... 14
17
C. The Scope of Discovery Includes Both Trace3’s Trade Secret and
18 Confidential File Names Identified in Appendix A to Trace3’s Second
Amended § 2019.210 Disclosure. ......................................................................... 16
19
D. Sycomp’s Request for an Advisory Opinion on Pre-Emption Is Improper. ......... 17
20
E. Trace3’s Discovery Is Appropriately Limited In Scope. ...................................... 18
21
V. CONCLUSION ................................................................................................................. 19
22

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TRACE3’S OPPOSITION TO SYCOMP’S EX PARTE APPLICATION FOR LOS ANGELES, CALIFORNIA 90017-2566
RECONSIDERATION AND/OR CLARIFICATION OF ORDER GRANTING MTC (213) 633-6800
Fax: (213) 633-6899
TABLE OF AUTHORITIES

Page(s)

ASES

Advanced Modular Sputtering, Inc. v. Superior Court (2005)
132 Cal.App.4th 826 ............................................................................................................... 16

Ass’n for Los Angeles Deputy Sheriffs v. Los Angeles Times Commc’ns LLC (2015)
239 Cal.App.4th 808 ............................................................................................................... 13

Baldwin v. Home Savings of America (1997)
59 Cal.App.4th 1192 ............................................................................................................... 12

Byton v. N. Am. Co. v. Breitfeld (C.D. Cal. Apr. 28, 2020)
2020 WL 3802700 .................................................................................................................. 17
10
Darling, Hall & Rae v. Kritt,
11
75 Cal.App.4th ........................................................................................................................ 13
12
Gilberd v. AC Transit (1995)
13 32 Cal.App.4th 1494 ............................................................................................................... 12

14 Guthrey v. Cal. Dep’t of Corrections & Rehab. (E.D. Cal. June 27, 2012)
2012 WL 2499938 .................................................................................................................. 17
15
Le Francois v. Goel (2005)
16 35 Cal.4th 1094 ....................................................................................................................... 13
17
Nazir v. United Airlines, Inc. (2009)
18 178 Cal.App.4th 243 ......................................................................................................... 14, 18

19 Otay Land Co. v. Royal Indem. Co. (2008)
169 Cal.App.4th 556 ............................................................................................................... 17
20
People v. Yartz (2005)
21 37 Cal.4th 529 ......................................................................................................................... 18
22 Powell v. County of Orange (2011)
23 197 Cal.App.4th 1573 ............................................................................................................. 11

24 Ralphs Grocery Co. v. Workers’ Comp. Appeals Bd. (1997)
58 Cal.App.4th 647 ........................................................................................................... 14, 18
25
W. Pico Furniture Co. v. Superior Court (1961)
26 56 Cal.2d 407 .................................................................................................................... 15, 19
27

California Business and Professions Code
§ 17200...................................................................................................................................... 5

California Civil Code
§ 3426........................................................................................................................................ 5

California Code of Civil Procedure
§ 1008.................................................................................................................... 11, 12, 13, 18
§ 1008(a) ........................................................................................................................... 11, 12
§ 2019.210........................................................................................................... 5, 7, 11, 13, 16

19
20

I. INTRODUCTION

There are no “new or different facts, circumstances or law” warranting a change in the

Court’s August 7, 2023 Order. After months of stonewalling Plaintiff Trace3, LLC (“Trace3”),

this Court has confirmed the reasonable particularity of Trace3’s § 2019.210 disclosure and

overruled Sycomp’s other remaining discovery objections. Now faced with the reality that it will

have to actually account for its employees’ misappropriation of Trace3’s trade secret and

confidential information, Sycomp has again tried to evade its discovery obligations by seeking a

narrowing of this Court’s order granting Trace3’s motion to compel. The application should be

10 denied because Sycomp’s arguments were either waived (when Sycomp failed to present them

11 below) or Sycomp attempts to re-litigate issues already decided (or deemed unnecessary to

12 resolve in order to grant the relief requested) by the Court. Because Sycomp fails to carry its

13 burden demonstrating new facts, new law, or substantial justice impel reconsideration, its

14 application should be denied.

15 II. BACKGROUND

16 A. The Court Grants Trace3’s TRO Application and Authorizes Expedited Discovery.

17 On May 12, 2023, Trace3 asserted claims for violation of the Uniform Trade Secrets Act

18 (COA 1), breach of contract (COA 2), violation of the Unfair Competition Law (the “UCL”)

19 (COA 6), and seven other claims against Defendants Sycomp, Devin Tomcik, Timothy Cordell,

20 Geoffrey Peterson, and Lilian Elias. On May 18, 2023, Trace3 filed its Ex Parte Application for

21 Temporary Restraining Order premised on these counts. (May 18, 2023, Ex Parte Appl.) In both

22 the Complaint and Ex Parte Application, Trace 3 identified its trade secrets. (Compl. ¶¶ 22–28;

23 5/18 Ex Parte Appl. 10:21–12:16 & Turner Decl.)

24 Through briefing, Sycomp’s employees admitted to (1) copying hundreds of thousands of

25 Trace3 documents in anticipation of leaving Trace3 for Sycomp, including documents containing

26 Trace3’s sensitive competitive business information, and (2) after receiving Trace3’s cease and

28
On July 21, 2023, Trace3 voluntarily dismissed its claims against Lilian Elias without prejudice.
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TRACE3’S OPPOSITION TO SYCOMP’S EX PARTE APPLICATION FOR LOS ANGELES, CALIFORNIA 90017-2566
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Fax: (213) 633-6899
desist letter, intentionally deleting Trace3’s confidential business information from their

electronic devices, including by destroying a USB drive with a hammer, among other fatal

admissions. (5/19/23 Tomcik Decl. ¶¶ 3, 5, 7; 5/23/23 Tomcik Decl. ¶¶ 2–4; 5/19/23 Cordell

Decl. ¶¶ 4–5; 5/19/23 Peterson Decl. ¶¶ 4–5, 7–8.)

On May 23, 2023, the Court granted a narrowly tailored TRO and set an OSC/PI hearing

for July 21. The Court enjoined Defendants from misappropriating Trace3’s “trade secrets and

confidential and sensitive information” and “breaching any legally-valid, enforceable

confidentiality agreement with Trace3.” (May 23, 2023, Order Granting Ex Parte TRO 2:8–22.)

The Court also authorized “limited expedited discovery” for the “benefit [of] the parties in

10 preparation for the preliminary injunction hearing,” with the response deadline for written

11 discovery being seven (7) days and requiring seven (7) days’ notice for depositions. (Id. 3:24–

12 4:4.) Because much of the evidence of trade secret misappropriation is found exclusively within

13 Defendants’ possession, and Trace3 had already produced the voluminous forensic evidence

14 showing the Sycomp employees’ illicit activity when it filed its initial ex parte TRO application,

15 Trace3 understood this order to be primarily prompting discovery into Defendants’ hidden

16 activity on the other side of the divide. Trace3 has waited months for the veil to be lifted.

17 B. Sycomp Pursues Discovery, While Refusing To Respond to Trace3’s Requests.

18 On May 26, three days after the Court issued the initial TRO, Sycomp served seventy-nine

19 (79) discovery requests on Trace3, including discovery regarding Trace3’s trade secrets. (7/7

20 Phillis Decl. ¶ 4 & Exs. A–D.) On June 2, 2023, Trace3 served timely, substantive responses,

21 identifying its trade secrets and the 300,000+ files Defendants took from Trace3. (Id. ¶ 5.)

22 Trace3 produced thousands of pages of documents in multiple productions, including a chart

23 listing the stolen and diverted documents containing and constituting Trace3’s trade secrets.

24 Ibid.) There was no reasonable dispute about what the Defendants had taken.

25 Also on June 2, Trace3 served its First Set of Requests for Production No. 1–19, Requests

26 for Admission No. 1–43, Special Interrogatories No. 1–52, and Form Interrogatories 3-series,

27 15.1, 17.1 on Sycomp. (7/7 Phillis Decl. ¶ 6.) Per the Court’s order, Sycomp had seven (7) days

28 to respond. Trace3 sought information directly relevant to the OSC re PI—particularly

available to Trace3. (Id. ¶ 6 & Exs. R–T.) Sycomp stonewalled. Rather than conducting the

requisite investigation and searches for responsive discovery, Sycomp embarked on a strategy to

deflect, delay, and obstruct—taking every opportunity to manufacture disputes to avoid discovery,

churn fees, run out the clock on Trace3’s TRO and PI deadlines, and evade discovery.

On June 5, 2023 (the first business day after Trace3 served its discovery responses),

Sycomp requested an IDC with the Court solely “to discuss Plaintiff Trace3’s deficient and not

code-compliant responses” to Sycomp’s first set of discovery requests, before even meeting and

conferring with Trace3 on those discovery responses, as required under the Court rules. (7/7

10 Phillis Decl. ¶ 8 & Ex. E.) Sycomp insisted that an IDC be set for June 9, 2023, and demanded

11 dissolution of the TRO as a purported “sanction” for Trace3’s substantive discovery responses

12 (without even identifying the claimed discovery deficiencies to Trace3, and despite Trace3’s

13 request for an extension to supplement). (Id. ¶ 9.) At the time, Sycomp had not even served its

14 own responses to Trace3’s discovery—which were due on June 9. Id. ¶ 10.) At the IDC, which

15 was conducted at 10:00 am on June 9, 2023, the Court declined to dissolve the TRO and ordered

16 the parties to confer regarding the scope of “limited discovery.” (Ibid.) Sycomp subsequently

17 refused to narrow or withdraw any of its requests.

18 Sycomp did not serve its own discovery responses upon Trace3 until after the IDC

19 concluded on June 9. (Id. ¶ 11.) Sycomp objected to all of Trace3’s requests, refused to produce

20 a single document, and refused to provide substantive responses to Sycomp’s interrogatories or

21 requests for admission. (Id. Exs. F, G, H. I.) Instead, Sycomp made lengthy objections to each

22 request, attempting to justify its stonewalling on two primary grounds: (1) Sycomp contended

23 that Trace3 did not identify its trade secrets with particularity under section 2019.210; and (2) that

24 the discovery requests are unduly burdensome, without detailing how the search for and

25 production of such discovery would impose said burden or why such burden is disproportionate to

26 the needs of the case and “undue” in any sense. (Ibid.)

27 On June 13, 2023, following Sycomp’s issuance of a report regarding a court-ordered

28 forensic examination, Trace3 served its second set of discovery on Sycomp seeking to understand

supposedly found on one of the Sycomp-collected devices. (Id. ¶¶ 13–14 & Ex. J.)

In an effort to resolve Sycomp’s 2019.210 objection (but without conceding its merit),

Trace3 served its Trade Secret Identification (the “Initial Identification”) pursuant to Code of

Civil Procedure section 2019.210 on June 16, 2023. (7/7 Phillis Decl. ¶ 16.) Following service,

Sycomp persisted in its 2019.210 objections, on which the parties further conferred.

On June 20, 2023, Sycomp responded to Trace3’s second set of discovery tied to its first

forensic examination and the deposition notice, with its boilerplate 2019.210 and burden

objections, despite already having received Trace3’s trade secret identification. (Id. ¶ 15 & Exs.

10 K, L, M.) Sycomp stuck to its playbook regardless of Trace3’s efforts to specify its trade secrets.

11 C. Sycomp Persists in Its Discovery Objections While the TRO Expires, Forcing Trace3

12 To File a Motion for Extension of the TRO, Continue the Preliminary Injunction

13 Dates, and File a Motion to Compel Discovery.

14 After further meeting and conferring with Sycomp, Trace3 requested an IDC conference

15 regarding Sycomp’s refusal to produce discovery, among other issues. (6/21/23 Trace3 IDC

16 Stmt.) With the OSC re PI fast approaching on July 21, Trace3 also requested to extend the TRO

17 and continue the OSC date to allow the parties to resolve the discovery disputes. (Id.) After the

18 June 23, 2023 IDC, the Court authorized Trace3 to file a motion to compel discovery from

19 Sycomp, and vacated the OSC re PI, setting a hearing on Trace3’s preliminary injunction motion

20 for September 7 “so that all discovery issues will have been resolved” prior to filing the Motion

21 for Preliminary Injunction. (6/26/23 IDC Order.) The Court also stated at the IDC, though there

22 is no transcript per the Court’s practice, that any outstanding objections asserted by Sycomp

23 would have to be raised in the briefing on the motion to compel so that the Court would not be

24 faced with a scenario where only some, but not all, of Sycomp’s objections would be evaluated on

25 Trace3’s motion to compel. Both parties’ counsel agreed and understood the assignment. The

27 Sycomp has also opposed each of Trace3’s attempts to file information under seal (including
after the Court granted the first of Trace3’s such motion) and challenged Trace3’s confidentiality
28 designations under the Stipulated Protective Order, resulting in Trace3 now having filed five (5)
Motions to Seal with several more to come.
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TRACE3’S OPPOSITION TO SYCOMP’S EX PARTE APPLICATION FOR LOS ANGELES, CALIFORNIA 90017-2566
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Court also invited Trace3 to file a motion to extend the TRO in the June 26 order. (Id.) The

Court also ordered the parties to stipulate to a briefing schedule on the forthcoming motions. (Id.)

The parties ultimately agreed to, and the Court ordered, the following schedule on the preliminary

injunction motion: opening brief due August 11; opposition due September 8; and reply brief due

September 15; hearing on September 29, 2023 at 9:00 a.m. (6/27/2023 Order.)

At the IDC, Sycomp also took the position that it would not seek further discovery

responses from Trace3 on its discovery requests until after the PI hearing, and the Court thus

extended Sycomp’s deadline to move on those requests until October 31. (6/26/23 IDC Order.)

Implicit in Sycomp’s decision not to press further at this time was that the discovery it was

10 seeking was not “in aid of” the Court’s resolution of the PI Motion. Moreover, Sycomp still to

11 this day has never actually conferred with Trace3 about its requests, how what it is seeking is in

12 aid of the briefing of the PI Motion, or what was in any sense deficient about Trace3’s responses.

13 On June 28, 2023, in another good faith attempt to avoid unnecessary motion practice, and

14 though it had no obligation to do so, Trace3 served an amended trade secret identification (the

15 “Amended Identification”) setting forth in even more detail the trade secrets at issue. (7/7 Phillis

16 Decl. ¶ 17–19 & Ex. N (Amended Identification).) That Amended Identification responded

17 directly to Sycomp’s objections, provided additional details regarding Trace3’s trade secrets, and

18 even attached the documents that Trace3 had forensically recovered (to date) that fall within each

19 category of documents. (Ibid.) Following further email conferral by Sycomp on June 28, Trace3

20 further produced a file listing of documents subsumed in certain of the trade secret categories.

21 (7/7 Phillis Decl. ¶ 20 & Exs. O–P.)

22 On June 29, counsel for Sycomp confirmed that it was still persisting in its 2019.210

23 objection, and there was nothing Trace3 could do to resolve Sycomp’s intractable 2019.210

24 objection. (Id. ¶ 24 & Ex. Q.) Sycomp steadfastly refused to produce any of the requested

25 discovery or appear for deposition, forcing Trace3 to file a motion to compel as well as a motion

26 to extend the TRO. The Court heard argument on these motions on July 28, 2023.

27 D. The Court Grants Trace3’s Motions In Part.

28 On August 5, 2023, the Court sent the parties an advance copy of its Order (to double

Seal, and Motion to Extend or Modify TRO, which it entered on August 7, 2023. (8/7/2023

Order.) The Court noted it “has concerns that some of the Individual Defendants (or their agents)

may have accessed Trace3 confidential information, even after the TRO was entered. … [T]he

evidence proffered by Trace3 does cause the Court to feel some trepidation.” (8/7 Order at 3:27–

4:4.) The Court also suggested that, “at the preliminary injunction stage,” Trace3 may “be able to

adduce direct evidence [of misappropriation] … based on additional discovery.” (Id. at 4:19–21.)

Based on its concerns and the “not-insignificant possibility that [Trace3’s trade secrets] were used

by Sycomp and the Individual Defendants to take business from Trace3,” the Court extended the

10 TRO to the current Preliminary Injunction hearing date. (Id. at 6:3–10.) The Court also ordered a

11 neutral forensic examination of certain of the Individual Defendants’ devices. (Id. at 6:13–21.)

12 The Court overruled all of Sycomp’s objections to Trace3’s discovery requests and

13 deposition notice. (Id. at 8:15–10:19.) The Court found that “the categories [in Trace3’s

14 2019.210 disclosure] give enough information to Sycomp to defend itself adequately, to prevent

15 Trace3 from rummaging through Sycomp’s (virtual) file cabinets to find a trade secret ‘hook,’ and

16 for the Court to understand the parameters of the trade secret claim.” (Id. 9:4–8.) The Court was

17 “satisfied that Trace3 has made a ‘fair, proper, just and rational’ identification of the trade secrets

18 at issue, particularly at this stage of the litigation.” (Id. at 9:17–18.) The Court did require “one

19 change” to the disclosure—to remove catch-all and illustrative language, which it gave Trace3

20 five (5) calendar days to do and re-serve on Sycomp. (Id. at 9:20–27.) The Court expressly

21 overruled Sycomp’s burden objections. (Id. at 10:5–9.)

22 The Court thus ordered that, “[w]ithin 7 calendar days of the service of an amended TS

23 Disclosure by Trace3, Sycomp must respond with Code-compliant responses (with no objections

24 except for privilege and work product) to all of the propounded discovery requests.” (Id. at

25 10:10–13.) The Court further ordered, “Sycomp must sit for a PMK deposition well before the

26 preliminary injunction hearing” as to all the noticed topics. (Id. at 10:14–19 [emphasis added].)

27 Before the Court entered the Order, Sycomp emailed the Court attempting to seek

28 “reconsideration” and “clarification” that only further delays and obstructs compliance with its

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discovery obligations. (8/7 Phillis Decl., Ex. A at 10–14.) What’s more, in its email to the Court,

and in the application it ultimately filed, Sycomp threatens that, if the Court does not walk back

its Order, Sycomp would go back on its previous word and immediately file a motion to compel

Trace3’s discovery responses: “[I]f the discovery floodgates are simply open, then there is no

longer a reason for Sycomp (or the individual defendants) to hold off on filing its motion to

compel and obtain full and complete responses from Trace3 on a 7-day turn around. We assume

that is not what you intended. But if not, can you please let us know the earliest date on which

you can hear an expedited motion to compel from Sycomp?” (Id. (emphasis in the original)).

E. Sycomp Refuses to Continue the Preliminary Injunction Briefing to Allow Time for

10 Trace3 to Obtain the Court-Ordered Discovery and Moves for Reconsideration.

11 Pursuant to the Court’s August 7 Order, Trace3 is entitled to the discovery it requested in

12 aid of its preliminary injunction motion. Sycomp’s deadline to produce responses to the written

13 discovery, however, is not due until—at the earliest—August 14, which is after the current

14 August 11 deadline for Trace3’s Motion for Preliminary Injunction.

15 In an attempt to avoid further burdening the Court with administrative disputes among the

16 parties, on August 6, 2023, Trace3 first asked counsel for Defendants for a continuance of its

17 preliminary injunction motion deadline. (8/7 Phillis Decl., Ex. B.) Less than an hour later,

18 Sycomp’s counsel responded: “Trace3 is not getting any discovery from Sycomp prior to its

19 August 11 deadline to file any motion for preliminary injunction because Trace3 has yet to

20 comply with CCP 2019.210. . . . We are not agreeing to extend the August 11 deadline for

21 Trace3 to file any motion for preliminary injunction.” (8/7 Phillis Decl., Ex. B [Aug. 6, 2023

22 7:42 p.m. email from R. Dharnidarkha].) Following a flurry of emails to the Court on a Saturday

23 regarding the Court’s order granting Trace3’s motion to compel, Sycomp moved ex parte for

24 reconsideration on August 7, raising new objections that it failed to raise in opposition and

25 attempting to relitigate other issues that were briefed in Trace3’s motion to compel.

26 III. LEGAL STANDARD

27 Code of Civil Procedure section 1008 provides that a party affected by an order may apply

28 to the judge to reconsider the matter “based upon new or different facts, circumstances, or law.”

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(Code Civ. Proc., § 1008(a).) “The name of a motion is not controlling, and, regardless of the

name, a motion asking the trial court to decide the same matter previously ruled on is a motion for

reconsideration under Code of Civil Procedure section 1008.” (Powell v. County of Orange

(2011) 197 Cal. App. 4th 1573, 1577 [dismissing appeal and holding denials of motions for

reconsideration non-appealable].) When no new facts, circumstances, or law are shown, the court

lacks authority under section 1008(a) to grant the motion for reconsideration. (Gilberd v. AC

Transit (1995) 32 Cal.App.4th 1494, 1500 [“According to the plain language of the statute, a

court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon

‘new or different facts, circumstances or law.’”].)

10 IV. ARGUMENT

11 A. Sycomp Falls Far Short of Meeting Its Burden for Reconsideration or Clarification.

12 Sycomp’s motion for reconsideration (it is not one for “clarification,” because it is actually

13 seeking to narrow the Court’s order and thereby serves as one for reconsideration) fails from the

14 outset based on the face of the reconsideration statute.

15 First, the motion is procedurally defective. Section 1008(a) requires that a party seeking

16 reconsideration of an order “shall state by affidavit what application was made before, when and

17 to what judge, what order or decisions were made, and what new or different facts, circumstances,

18 or law are claimed to be shown.” (Code Civ. Proc., § 1008(a) (emphasis added).) Sycomp makes

19 no such showing in the attached affidavit of Jeanette Barzelay, nor could they. In the absence of

20 such a showing, this Court should decline to reconsider its motion under Section 1008.

21 Second, even without this procedural defect, Sycomp fails to demonstrate any “new or

22 different facts, circumstances or law” warranting a change in the Order. (Code Civ. Proc., §

23 1008(a).) To the contrary, the three total cases cited in Sycomp’s ex parte application date back

24 to 1999, 2005, and 2011, so there is no argument that they constitute a change in law. Nor does

25 Sycomp’s opposition and the Barzelay make any attempt to identify any “new facts” whatsoever.

26 Sycomp’s failure to identify any new facts or law that would justify reconsideration of this

27 Court’s ruling should end the inquiry, particularly because Sycomp attempts to make multiple

28 arguments it neglected to make in opposition to Trace3’s motion. (Gilberd, supra, 32 Cal.App.4th

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TRACE3’S OPPOSITION TO SYCOMP’S EX PARTE APPLICATION FOR LOS ANGELES, CALIFORNIA 90017-2566
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Fax: (213) 633-6899
at 1500; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198 [“it is evident

that the party seeking reconsideration must provide not only new evidence, but also a satisfactory

explanation for the failure to produce that evidence at an earlier time”] (emphasis in original).)

Indeed, while California courts have acknowledged a trial court’s inherent authority to reconsider

a prior ruling sua sponte, even if prompted by a deficient motion under Section 1008, the

California Supreme Court has cautioned that Section 1008 still applies to “limit the parties’ ability

to file repetitive motions”—as is the case here. (Le Francois v. Goel (2005) 35 Cal.4th 1094,

1104, as modified (June 10, 2005).)

Le Francois is instructive. (35 Cal.4th at 1104.) There, the Supreme Court explained the

10 importance of upholding Section 1008 to guard against the refiling of repetitive motions:

11 We agree. . . that “by eliminating the distinction between a trial
court's action taken sua sponte and that made in response to a
12 litigant's motion, the more recent cases such as Remsen and
Wozniak go too far toward eviscerating the clear jurisdictional
13 language of section 1008, essentially rendering the provisions of the
statute meaningless.” . . . These statutes serve a purpose. They are
14 “designed to conserve the court’s resources by constraining litigants
who would attempt to bring the same motion over and over.”
15
Id.) Here, Sycomp was specifically warned at the IDC on June 23, and in the order that
16
followed, that Trace3’s motion to compel would address not only Sycomp’s § 2019.210 objection,
17
but also Sycomp’s burden and scope objections as well. Indeed, the Court’s order following the
18
June 23, 2023 IDC reiterated this point, setting the hearing on Trace3’s preliminary injunction
19
motion for September 7 “so that all discovery issues will have been resolved” prior to filing the
20
Motion for Preliminary Injunction. (6/26/23 IDC Order.)
21
There is no dispute that Sycomp had the opportunity to brief and respond to Trace3’s
22
arguments as to the scope/relevance, burden, and overbreadth objections, which were actually
23
briefed and fully raised in Trace3’s opening Motion to Compel. (Mot. at 14:3–15:23 [relevance];
24
17:20–18:19 [UCL and Contract claim discovery not barred]; 20:13–21:12 [burden].) As set forth
25
in further detail below, Sycomp is not entitled to a second, emergency, ex parte bite at the apple
26
now because it has so obstructed Trace3’s discovery that it will have difficulty complying with
27
this Court’s order. Any emergency is entirely of Sycomp’s own making and is not a grounds for
28

13 AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
TRACE3’S OPPOSITION TO SYCOMP’S EX PARTE APPLICATION FOR LOS ANGELES, CALIFORNIA 90017-2566
RECONSIDERATION AND/OR CLARIFICATION OF ORDER GRANTING MTC (213) 633-6800
Fax: (213) 633-6899
ex parte reconsideration. (See Ass’n for Los Angeles Deputy Sheriffs v. Los Angeles Times

Commc’ns LLC (2015) 239 Cal.App.4th 808, 813–14 [affirming denial of ex parte application

where party “had known for weeks” about the event it claimed would cause irreparable harm and

therefore “any exigency appear[ed] to be of [the party’s] own making.”].)

B. The Time-Frame In Trace3’s Requests Is Appropriately Narrow.

Sycomp’s effort to relitigate its overruled burden objection by raising an argument it

neglected to make in its Opposition—that the time period of the requests imposes undue burden—

fails on multiple fronts. (App. 5:16–7:3.)

First, Sycomp waived this argument by failing to timely raise it in opposition to Trace3’s

10 MTC. Despite this waiver, Sycomp now contends that the requests should all be narrowed to

11 January 1, 2023 to the present, because Trace3, in addressing Sycomp’s burden objection,

12 mentioned that requests are limited in time given the nature of the action and the requests. (App.

13 5:16–27.) But in Sycomp’s Opposition to the MTC, Sycomp did not dispute as much, arguing

14 only that the burden in that narrow timeframe provided for under the requests was substantial.

15 (Opp. 18:18–23.) In so asserting the objection, Sycomp (not Trace3) bore the burden proffering

16 evidence to prove its burden objection; not only did it fail to do so, but it failed to even make the

17 argument that the broad time period of the requests generated an undue burden. In failing to

18 respond to Trace3’s argument at that time, it waived any such argument. (See e.g., Ralphs

19 Grocery Co. v. Workers’ Comp. Appeals Bd. (1997) 58 Cal.App.4th 647, 651 fn.2 [a party waives

20 an issue “by failing to mention it in [its] opposition brief”]; Nazir v. United Airlines, Inc. (2009)

21 178 Cal.App.4th 243, 288 [party waives issue by not addressing it in opposition].)

22 Second, Sycomp’s burden objection fails on the merits. (App. 5:16–7:3.) In its MTC

23 brief, Trace3 did not rewrite its discovery requests to incorporate an express, blanket time

24 limitation (and Sycomp cites no authority that would support such an implication), and as Sycomp

25 admits, “no such limitation appears on the face of the requests.” (Id. 5:27–28.) In any case,

26 nearly all of the requests are in fact limited to this time period—either explicitly or implicitly, as

14 AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
TRACE3’S OPPOSITION TO SYCOMP’S EX PARTE APPLICATION FOR LOS ANGELES, CALIFORNIA 90017-2566
RECONSIDERATION AND/OR CLARIFICATION OF ORDER GRANTING MTC (213) 633-6800
Fax: (213) 633-6899
Sycomp concedes, and none impose an undue burden. (Id. 5:28–6:6 & n.2 [“The temporal scope

of some of Trace3’s discovery requests necessarily is limited by the context.”].)

What remains in dispute are four requests about Sycomp’s historical provision of Rack

and Roll services in Northern California (namely, Special Interrogatory Nos. 5-6 and Deposition

Topics 1-2), which Sycomp put directly at issue in the Saxena declaration, and which do not

impose any undue burden—and certainly none for which Sycomp meets its burden of proving any

undue burden having waived the issue in opposing Trace3’s Motion to Compel. (MTC 20:19–21,

citing W. Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417 [An “objection based

upon burden must be sustained by evidence showing the quantum of work required” and the

10 “burden demonstrated [] result[s] in injustice.”].) Sycomp’s single declaration (submitted for a

11 different motion) contending that Sycomp had this business since sometime prior to 2016 and

12 “numerous” clients is no substitute. (7/17/23 Saxena Decl. ¶ 4.) Indeed, even if the business has

13 been longstanding, it might have had only a few deals or clients—the history of which is no doubt

14 available in Sycomp’s records. While Sycomp implies that it would be burdensome to collect this

15 information, it does not actually say that, nor provide any evidence of such burden as it is required

16 to do. Having failed to do so, Sycomp failed to carry its “burden” burden for a second time.

17 Third, the Court plainly did not limit its order to such a time period. Sycomp suggests

18 that, based on Trace3’s time period statement, the Court’s “intent” was to grant the MTC as to this

19 limited time frame of a “few months” (id. at 6:22–7:1), but as even Sycomp concedes, the Court

21
All of Trace3’s RFPs are limited by default to January 2023 through the present, unless
22 otherwise stated, and Sycomp takes no issue with these requests. (Id. 6:1–2; 7/7/2023 Phillis
Decl., Ex. T [definition of “RELEVANT TIME PERIOD”). Sycomp vaguely asserts that “18 [of
23 the 19] SIs (from Set One), all 43 RFAs, and corresponding FI 17.1 are” encompass a burdensome
time period. (App. 6:3–5.) Not true. Trace3’s RFAs and associated Form Rog. 17.1 are
24 necessarily limited in time and scope, generally requiring narrow admissions regarding the type of
information that constitutes Sycomp’s trade secrets (RFAs 1–4), information regarding the former
25 Trace3 employees (RFAs 18–25, 42–43), whether Sycomp has provided Rack and Roll services to
specific customers or at all (RFAs 5–17), and Sycomp’s use of Trace3’s information (RFA 26–
26 41). (7/7/2023 Phillis Decl., Ex. S.) Similarly, nearly all the SIs have implicit time limitations, as
they seek information regarding the use, possession, and access to Trace3’s TS/CI (SIs 1–2, 10),
27 the former Trace3 employees (SIs 3–4, 13), Sycomp’s current rack and roll business (SIs 7–9),
and recent, specific business opportunities (SIs 11–12, 14–19.) (7/7/2023 Phillis Decl., Ex. U.)
28 Sycomp’s unsupported generalizations fail.

15 AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
TRACE3’S OPPOSITION TO SYCOMP’S EX PARTE APPLICATION FOR LOS ANGELES, CALIFORNIA 90017-2566
RECONSIDERATION AND/OR CLARIFICATION OF ORDER GRANTING MTC (213) 633-6800
Fax: (213) 633-6899
did not, and instead “granted Trace3’s MTC in full with no express limitations or conditions”

(except for privilege) (id. at 4:24). Moreover, Sycomp misstates the grounds for overruling the

objection. Sycomp incorrectly claims “Trace3 argued that Sycomp’s burden objection should be

overruled because Trace3’s discovery requests ‘are limited to a very narrow period of time.’”

(App. 5:23–27.) But Trace3 argued that the objection should be overruled because Sycomp failed

to meet its burden to show undue burden, and only noted the time period to show that such

showing cannot be made. (MTC 20:19–26.) Similarly, the Court explained that it overruled the

objection because “Sycomp has not adequately shown that these discovery requests are overbroad

or unduly burdensome.” (8/7 Order at 10:5–9.) There is nothing to clarify.

10 C. The Scope of Discovery Includes Both Trace3’s Trade Secret and Confidential File

11 Names Identified in Appendix A to Trace3’s Second Amended § 2019.210 Disclosure.

12 Sycomp next seeks “clarification” that “the scope of Trace3’s discovery is limited to the

13 four trade secret categories as alleged in Trace3’s new amended Section 2019.210 disclosure.”

14 (App. 7:4–22.) What Sycomp asks effectively is that this Court strike Trace3’s confidentiality

15 and UCL claims and shield from discovery Trace3’s separately-designated confidential

16 information. This is improper. This is not a clarification, but a disguised dispositive motion that

17 is belied by this Court’s Order, Trace3’s Complaint, and the anticipated scope of Trace3’s

18 preliminary injunction motion.

19 The Order provides: “Within 5 calendar days of this order, Trace3 m

Case Info

Judge

Beth A. R. McGowen Track Judge’s New Case

Case No.

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Document Filed Date

August 08, 2023

Case Filing Date

May 12, 2023

County

Parties

Devin Tomcik Defendant
Geoffrey Peterson Defendant
John Barnes Defendant
Lilian Elias Defendant
Lyn Robyn Agre Attorney For The Defendant
Nicole Susan Phillis Attorney For The Plaintiff
Rajiv Sajjan Dharnidharka Attorney For The Defendant
Rodney Brandon Sorensen Attorney
Stacy Thompson Thompson Interested Party
Superior Court of CA, County of Santa Clara Attorney
Superior Court of California Notice
Sycomp a Technology Company, Inc. Defendant
Timothy Cordell Defendant
Trace3, LLC Plaintiff
Edward Shapiro Attorneys for Defendants
Micah Chavin Attorneys for Defendants
Heather Canner Attorneys for Plaintiffs
Erin Heiferman Attorneys for Defendants
Megan Reilly Attorneys for Defendants
Joseph Schultz Attorney
Jibraun Riaz Attorneys for Plaintiffs
Neal Callahan Attorney

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Motion,Ex Parte: Trace3, LLC v. Sycomp, A Technology Company, Inc., et al.

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