Preview
JEREMY BEN MERKELSON (Admitted PHV), DC
jeremymerkelson@dwt.com
NICOLE PHILLIS (SBN 291266), LA
nicolephillis@dwt.com
MARINA GRUBER (SBN 271542), SF
marinagruber@dwt.com
DAVIS WRIGHT TREMAINE LLP
SF: 50 California St., 23rd Fl., San Francisco, CA 94111
LA: 865 S. Figueroa St., 24th Fl., Los Angeles, CA 90017
DC: 1301 K Street NW, Ste 500 East, Wash., DC 20005
Telephone: (415) 276-6500 / Fax: (415) 276-6599
Attorneys for Plaintiff TRACE3, LLC
RAJIV DHARNIDHARKA (SBN 234756)
Rajiv.Dharnidharka@us.dlapiper.com
JEANETTE BARZELAY (SBN 261780)
Jeanette.Barzelay@us.dlapiper.com
MICAH CHAVIN (SBN 313634)
Micah.Chavin@us.dlapiper.com
DLA PIPER LLP (US)
2000 University Ave. East Palo Alto, CA 94303
Telephone: (650) 833-2300 / Fax: (650) 833-2001
Attorneys for Defendant SYCOMP, A TECHNOLOGY COMPANY, INC.
LYN R. AGRE (SBN 178218)
lagre@glennagre.com
EDWARD E. SHAPIRO (SBN 326182)
eshapiro@glennagre.com
GLENN AGRE BERGMAN & FUENTES
44 Montgomery Street, Suite 2410, San Francisco, CA 94104
Telephone: (415) 599-0880
Attorneys for Defendants Timothy Cordell, Geoffrey Peterson, and Devin Tomcik
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, JOINT CASE MANAGEMENT
STATEMENT
vs.
SYCOMP A TECHNOLOGY COMPANY, Date: September 14, 2023
INC., a California corporation; TIMOTHY Time: 2:00 p.m.
CORDELL, an individual; GEOFFREY Dept:
PETERSON, an individual; DEVIN TOMCIK,
an individual; and DOES 1-10, inclusive;
Action Filed: May 12, 2023
Defendants.
RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
Plaintiff TRACE3, LLC (“Trace3”) and Defendants SYCOMP A TECHNOLOGY
COMPANY, INC. (“Sycomp”), TIMOTHY CORDELL (“Cordell”), GEOFFREY PETERSON
(“Peterson”), and DEVIN TOMCIK (“Tomcik”) (collectively, “the Parties”), by and through their
respective counsel, hereby submit this Joint Case Management Conference Statement in advance
of the Case Management Conference scheduled for September 14, 2023, at 2:30 p.m. in
Department 1.
A. Summary of the Case.
1. Trace3’s Position
This is a civil action for trade secret misappropriation, unfair competition, breach of
10 contract, breach of fiduciary duty, violation of California Penal Code § 502, and other tortious
11 conduct against a small subset (three out of a larger group of ten) of former Trace3 employees
12 who resigned, en masse, on or about April 17, 2023, to join a competitor, Defendant Sycomp.
13 The three former Trace3 employees, Defendants Peterson, Tomcik, and Cordell (“Individual
14 Defendants”), actively abused and exploited their privileged access to Trace3 computer networks,
15 systems and devices to misappropriate hundreds of thousands of Rack and Roll (“RnR”) Build
16 Documents, customer lists, vendor lists, and proprietary and competitively-sensitive sales, pricing,
17 and profit histories and other competitively sensitive data constituting Trace3’s trade secrets and
18 confidential information for the benefit of themselves and their soon-to-be new employer,
19 Sycomp. Sycomp’s reasons for doing so were clear: to get a head start in the Northern California
20 market, particularly the market for RnR services—where Sycomp had struggled to gain
21 substantial market share for years.
22 The Spring of 2023 was the “Wild West” period for Sycomp and the Individual
23 Defendants, who, together, successfully steered to Sycomp several new customers with whom
24 Sycomp had not previously done RnR business in the United States, moving lucrative contracts by
25 leveraging Trace3’s trade secret and confidential information, including historical sales and
26 pricing information, to win the business at Sycomp. As to certain deals with particular customers,
27 the Individual Defendants had actively worked on those deals while working at Trace3 and chose
28 not to register them at Trace3 knowing they were going to be leaving for Sycomp. Further, once
AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
Defendants had received Trace3’s cease and desist letters in April 2023, and having realized they
had been caught in the act, two separate Individual Defendants attempted to cover their tracks by
intentionally spoliating relevant evidence of their misconduct both tangible (a USB drive) and
intangible (Dropbox), forever depriving Trace3 of those records of what they took, how they used
them, and whether they copied them or used them on any other devices. Trace3 seeks damages,
injunctive relief, and attorneys’ fees against Defendants, asserting causes of action for (1)
violation of the California Uniform Trade Secrets Act, Cal Civ. Code § 3426 et seq., (2) breach of
contract, (3) breach of implied covenant of good faith and fair dealing, (4) violation of Penal Code
§ 502 (Comprehensive Data Access and Fraud Act), (5) breach of fiduciary duty, (6) violation of
10 California Business & Professions Code § 17200 et seq.; (7) intentional interference with
11 contractual relations; (8) intentional interference with prospective economic advantage; (9)
12 negligent interference with contractual relations; and (10) negligent interference with prospective
13 economic opportunity.
14 Before filing this lawsuit, Trace3 reached out to Sycomp to try to get the company to do
15 what it has now resisted for five months: search its files for the specific documents that Trace3
16 knows the Individual Defendants took. Mr. Dharnidharka wrote an email on May 1, 2023
17 confirming that (1) he refused to so much as get on the telephone to speak with Trace3’s counsel;
18 (2) Sycomp insisted on receiving both “file names and hash values” of the 400,000 plus files at
19 issue; (3) Sycomp refused to accept Trace3’s file listing under a simple confidentiality and non-
20 disclosure agreement, though the compendium essentially provides a roadmap to all of Trace3’s
21 NorCal RnR work, and said there was nothing to talk about unless Trace3 gave that listing over
22 without confidentiality protections; (4) Sycomp refused to allow a neutral forensic examiner to
23 conduct the search, as offered by Trace3 and (5) while knowing that Devin Tomcik had already
24 destroyed a thumb drive with a hammer (since that apparently occurred on April 24), and that
25 Sycomp had already been using Trace3’s pricing information to undercut the competition and win
26 new business from Trace3 as shown in the documents produced during expedited discovery, Mr.
27 Dharnidharka previewed his defense of this matter, expressing his belief that Trace3 was pursuing
28 Sycomp under an inevitable disclosure theory. This is not an inevitable disclosure case, as
AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
described below, and, as with many trade secrets cases, proof by circumstantial evidence is often
necessary, particularly when the wrongdoers destroy the materials showing their misconduct.
2. Defendants’ Position
On Friday, April 21, 2023, Trace3 sent demand letters to Defendants (including former
defendant Elias) and six other former Trace3 employees who resigned from Trace3 on April 16
and 17 and were hired by Sycomp. Trace3’s letters demanded, among other things, that Sycomp
search its files for any Trace3 confidential material that may have been brought over to Sycomp
by any of its new hires. On Monday, April 24, Sycomp confirmed in writing that its new hires
should not have brought over any Trace3 confidential material and agreed to search for any
10 Trace3 files if Trace3 would (1) pay for the cost of the search and (2) identify any such files for
11 the search by hash value and file name. Trace3 responded on Thursday, April 27 with excuses for
12 not agreeing to Sycomp’s offer and demanded that Sycomp turn over devices that belonged to
13 Trace3 that it contended its former employees still possessed. Sycomp responded in writing on
14 Friday, April 28 to offer assistance with locating and returning any such devices if Trace3 would
15 identify them. Trace3 never responded in substance. Trace3 also received a substantive letter
16 from counsel for the former employees on May 8, 2023 in response to the April 21 demand
17 letters, but Trace3 never responded. Instead, Trace3 moved forward with litigation, filing two
18 lawsuits three days later on May 12, 2023, one in this Court and one in Arizona state court.
19 Trace3’s Arizona lawsuit is against Sycomp, its direct competitor, and Trace3 former
20 employee and California resident, Dawn McCale (who joined Sycomp), to attempt to enforce
21 invalid and sanctionable non-solicit and non-compete contract provisions with her. Against
22
23 Trace3 sent Defendants an initial draft of this joint statement on Wednesday, September 6 at
4:15 pm and demanded Defendants provide their portion by 5 p.m. the next day. Defendants
24 provided their portion of the statement, exactly as it is written here (other than this footnote) at
3:47 p.m. on September 7. Trace3 said it “expect[s]we will have a few” changes before the filing
25 deadline on September 8. At noon on September 8, rather than “a few” changes, Trace3 surprised
Defendants with a near-complete rewrite of its portion of this statement loaded with personal
26 attacks and rhetoric, not in tracked changes and adding five pages of new material. Trace3
requested Defendants’ final revisions by 2:00 p.m. today. Defendants cannot respond to Trace3’s
27 extensive new argument and assertions in the two-hour window provided. As such, Defendants
will be prepared to address Trace3’s five pages of new material and other newly asserted positions
28 at the CMC. Defendants would be happy to provide the Court with a redline comparing Trace3’s
September 6 and September 8 drafts.
AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
extensive law to the contrary, Trace3 contends that Arizona law should apply to its former
employment relationship with Ms. McCale. Ms. McCale and Sycomp moved to dismiss the
Arizona lawsuit. The briefing is ongoing.
Trace3’s California lawsuit advances an inevitable disclosure trade secret claim with other
deficient and preempted claims (which is sanctionable per Civil Code § 3426.4) against four of its
former employees who joined Sycomp (Elias, Peterson, Tomcik, and Cordell) and against
Sycomp to impede employment mobility in violation of Business & Professions Code § 16600
and the extensive case law interpreting it.
For the last four months, Trace3 has inundated Defendants and this Court with a never-
10 ending flood of motions, discovery, ex parte applications and the like, leading up to a motion for
11 preliminary injunction that was ordered to be filed by September 6, 2023 after multiple
12 extensions. But then Trace3 did not file any such motion. The Court, which is very familiar with
13 Trace3’s conduct, should consider issuing an OSC re sanctions in response to Trace3’s eleventh-
14 hour pivot following aggressive and expedited litigation that has cost Defendants hundreds of
15 thousands of dollars to address.
16 Additionally, since Trace3 did not file a motion for preliminary injunction, the Court
17 should immediately vacate the “follow the law” TRO it issued, so that the TRO cannot be used as
18 a marketing weapon by Trace3.
19 B. Summary of Prior Case Management Conference Orders and Progress.
20 1. Trace3’s Position
21 This is the first case management conference. Because there have been no prior case
22 management confers, we summarize for the Court’s benefit its other prior orders that remain
23 pending and the progress on those orders.
24
Following “Coffee Gate,” Trace3 dismissed Elias from this lawsuit. Sadly, however, Trace3 has
25 repeatedly lied to the Court (and the public) about statements in Peterson’s declarations (and the
related statements in the May 8, 2023 letter from his counsel to Trace3’s counsel) to suggest he
26 intentionally absconded to Sycomp with troves of Trace3 trade secret and confidential material.
Having zero evidence to support this debunked falsehood after extensive expedited discovery (and
27 all facts to the contrary), Defendants expect Trace3 will voluntarily dismiss Peterson to attempt to
minimize its Civil Code § 3426.4 exposure.
28 Trace3’s knowingly false “head start” allegations and related allegations about the “Rack and
Roll” market were thoroughly rebutted in the July 14, 2023 Declaration of Saurabh Saxena.
AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
Sycomp Forensic Search. On May 23, 2023, the Court entered its Order (1) granting limited
TRO and OSC re PI; (2) authorizing “limited expedited discovery” for the “benefit [of] the
parties in preparation for the preliminary injunction hearing” (5/23/23 Order at 3:24–4:4); and
(3) by June 12, Defendants must search electronic devices for nine Trace3 documents (Id.,
3:13-23.) On June 12, Sycomp filed its Statement regarding Forensic Search with a “false
positive” but it has never produced the “false positive” to date notwithstanding the motion to
compel order (see below). And Sycomp’s PMK testified that the search did not capture
emails or slack messages in the first place, raising significant concerns about Defendants’
compliance with this order.
10 Neutral Forensic Examination of Individual Defendants. On August 7, 2023, the Court
11 granted Trace3’s motions extend the TRO until September 29 and ordered a neutral forensic
12 examination of Individual Defendants’ devices. On August 22, 2023, the Court clarified that
13 the devices must be imaged and then returned “with instructions to delete all Trace3
14 information,” and that Trace3 need not accept previously copied forensic images, and that
15 “within 3 calendar days” after the Devices are returned, the “Individual Defendants must
16 provide declarations stating under oath that they have deleted all Trace3 confidential
17 information from their devices.” (Id.) The Court also encourages the parties to meet and
18 confer regarding whether, how, and when the images will be searched. (Id.) That process
19 remains ongoing, though Individual Defendants appear to have taken the position there will be
20 no searches at all. Trace3 also anticipates issues with respect to whether the neutral forensic
21 examiner, FTI Consulting, will be able to provide the “instructions” envisioned by the Court.
22 Sycomp Compliance with Order on Motion to Compel. On August 7, 2023, the Court
23 ordered that “[w]ithin 7 calendar days of the service of an amended TS Disclosure by
24 Trace3, Sycomp must respond with Code-compliant responses (with no objections except for
25 privilege and work product) to all of the propounded discovery requests.” (8/7/23 Order at
26 10:10–13.) The Court further ordered, “Sycomp must sit for a PMK deposition well before
27 the preliminary injunction hearing” as to all the noticed topics. (Id. at 10:14–19 [emphasis
28 added].) Sycomp is not in compliance with the Order on either of these points as both its
AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
production and PMK deposition were woefully deficient. But, Trace3 hopes that we can meet
and confer to resolve these issues without burdening the Court with another discovery dispute.
Spousal Privilege Issue. On August 28, 2023, Trace3 and Third Party Thompson submitted a
joint status report on the spousal privilege issues that the Court sua sponte converted into
Trace3’s opening brief in support of a motion to compel. Counsel for Trace3 and Ms.
Thompson conferred and agreed on a modified briefing scheduled that gives Mr. Sorensen
more time to file his opposition in light of his personal circumstances while allowing Trace3
the opportunity to include additional evidence in support of its motion on reply, and with
Thompson afforded a sur-reply, to address facts that Trace3 would have raised had it had the
10 opportunity to file a motion directed to this issue on its own before the Court issued its sua
11 sponte order. The motion will be fully briefed by September 22.
12 Preliminary Injunction Motion and TRO Expiration. The TRO will lapse on September
13 29, 2023. There is no application before the Court to dissolve the TRO before that date and
14 there is no evidence or argument before the Court to upset its earlier finding, extending the
15 TRO, based on the “not-insignificant possibility that [Trace3’s trade secrets] were used by
16 Sycomp and the Individual Defendants to take business from Trace3.” (8/7/23 Order at 3:27-
17 4:4, 6:3-10.) Pursuant to Cal. Civ. Proc. § 527(a) and Civil Code § 3426.2, Trace3 held back
18 on moving for preliminary injunctive relief on the briefing schedule previously set by the
19 Court to avoid the cost and burden of filing a motion that could be mooted by relief this Court
20 already ordered (but that Defendants have not complied with) and to develop evidence from
21 both Sycomp and the Individual Defendants that is directly relevant to the injunctive relief
22 Trace3 seeks (including remediation). Trace3’s position is that the Court’s prior orders do not
23 bar Trace3 from rights afforded to it pursuant to pursuant to Cal. Civ. Proc. § 527(a) and Civil
24 Code § 3426.2, and that to rule otherwise would be reversible error.
25 2. Defendants’ Position
26 Trace3 has materially distorted the case history and Defendants do not believe this joint
27 statement is the proper medium for correcting the record. This section is supposed to address
28
AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
“any orders from prior case management conferences,” but there are none because this is the first
case management conference in this lawsuit.
C. Procedural and Practical Problems
1. Trace3’s Position
a. Reservation of Rights as to Preliminary Injunctive Relief
Pursuant to Cal. Civ. Proc. § 527(a) and Civil Code § 3426.2, Trace3 did not move for
preliminary injunctive relief on the briefing schedule previously set by the Court to avoid the cost
and burden of filing a motion that could be mooted by relief this Court already ordered (but that
Defendants have not complied with) and to develop evidence from both Sycomp and the
10 Individual Defendants that is directly relevant to the injunctive relief Trace3 seeks (including
11 remediation). This evidence includes whether Sycomp has any copies of Trace3 Build
12 Documents on its systems as well as the results of the Court-ordered neutral forensic examination
13 of the Individual Defendants’ devices, the discovery the Court ordered that Sycomp complete, and
14 resolution of the spousal privilege issue that is pending before the Court. Given that this Court
15 ordered that such evidence be developed in aid of Trace3’s motion for preliminary injunction
16 before the hearing on September 29, Trace3 respectfully submits that both the Individual
17 Defendants and Sycomp should be held to their Court-ordered obligations regardless of whether
18 the TRO expires on September 29, including completion of the neutral forensic examination and
19 compliance with this Court’s order granting the motion to compel. Though Trace3 understands
20 that the TRO will have expired before it will file any forthcoming motion for preliminary
21 injunction, Trace3 reserves its rights to seek appropriate injunctive relief, particularly if
22 Defendants are unwilling to remediate voluntarily, once Trace3 is has the benefit of the Court-
23 ordered discovery.
24 While Trace3 understands that the TRO may lapse as of September 29, both the Individual
25 Defendants and Sycomp are still obligated to complete the neutral forensic examination and
26 produce the documents they were ordered to produce within the scope of expedited discovery,
27 which may prove that preliminary injunctive relief is warranted and necessary. To that end,
28 Sycomp’s request to dissolve the TRO in a CMC statement is improper and fails to establish the
AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
necessary record to warrant early termination of temporary injunctive relief. Indeed, the Court’s
order extending the TRO until September 29, 2023, was based on the “not-insignificant possibility
that [Trace3’s trade secrets] were used by Sycomp and the Individual Defendants to take business
from Trace3.” (8/7/23 Order at 3:27-4:4, 6:3-10.) The Court’s prior orders do not preclude
Trace3 from filing a motion for preliminary injunctive relief upon an appropriate showing,
including but not limited to once it receives the Court-ordered neutral forensic examination and
Sycomp’s confirmation of its compliance with the Court’s order on the motion to compel.
Sycomp’s position that Trace3 must seek “reconsideration” despite the express protections
afforded by Cal. Civ. Proc. § 527(a) and Civil Code § 3426.2 (without citing any legal authority in
10 support thereof), is legally incorrect and invites reversible error.
11 b. Enforcement of the Court’s Order Compelling Discovery from Sycomp
12 On August 30, 2023, after the noticed depositions during expedited discovery concluded,
13 Sycomp produced over 15,000 pages of responsive documents, though it is not clear to which
14 requests this discovery is responsive or whether Sycomp maintains that its production as required
15 by this Court’s order is complete. Sycomp’s delay in producing these documents further
16 prejudiced Trace3’s ability to prepare a motion for preliminary injunction. Trace3’s review of
17 these documents is ongoing but there appear to be obvious deficiencies in Sycomp’s production,
18 including Sycomp’s intentional failure to produce documents from the early “Wild West” portion
19 of relevant period, including March and early April, as well as a surprising lack of internal emails
20 between Sycomp-only employees and no Slack or internal messaging documents whatsoever.
21 Sycomp also admitted during PMK deposition that Sycomp’s June 12 Forensic Search failed to
22 include any Sycomp emails or Slack messages (through which files may be transferred and
23 attached)—a glaring deficiency in what it had claimed was a search complaint with this Court’s
24 May 23 order. Trace3 remains concerned that Sycomp is withholding production and documents
25 to run up discovery fees to pressure Trace3 to abandon the action. Given the Court’s order
26
27 It appears that Sycomp will not produce any relevant, responsive discovery in this matter absent
a court order requiring them to do so. Trace3 anticipates renewed motion practice regarding its
28 forthcoming discovery requests to search for hash values of documents for Category No. 1 given
that the parties have moved into merits discovery.
AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
granting Trace3’s motion to compel expedited discovery on August 8 and August 22, Trace3
requests that Sycomp confirm whether it has complied fully with the Court’s order granting
Trace3’s motion to compel, or whether Trace3 should expect any further productions. Trace3
reserves all rights to seek appropriate relief, sanctions, and/or contempt arising out of Sycomp’s
untimely production, failure to comply with the June 12 Order, failure to answer questions at the
PMK deposition for admitted lack of preparation by Mr. Saxena, and the resultant prejudice to
Trace3.
c. Amendment of the Complaint
Pursuant to Code of Civil Procedure § 472(a), Trace3 anticipates it will amend its
10 Complaint as a matter of right to address the new facts uncovered during expedited discovery and
11 that was developed during the depositions of Sycomp’s PMK, Saurabh Saxena, and the Individual
12 Defendants. Trace3 understands that Defendants anticipate filing a demurrer to the Complaint.
13 Trace3 requests that any amendment deadline be set after the deadline for the parties to meet and
14 confer regarding Defendants’ anticipated demurrer so that Trace3 can address these issues
15 consistent with Code of Civil Procedure § 430.41. Sycomp’s stated intent to file a demurrer
16 requires a conferral, though it is not apparent that Sycomp will engage in such conferral as it has
17 already filed a motion to compel without any conferral with Trace3. Sycomp’s threatened motion
18 for summary adjudication and/or summary judgment is premature and would be subject to a Code
19 of Civil Procedure § 437c(h) challenge given that the parties have not even entered merits
20 discovery to date. Sycomp’s premature threats of motion practice do little to advance resolution
21 on the merits of this action and only serve to further multiply fees in this already complex action.
22 d. Merits Discovery
23 Trace3 anticipates moving directly into merits discovery. Trace3 respectfully requests that
24 this Court separate the previously-filed discovery under the expedited schedule related to the
25 temporary restraining order and the motion for preliminary injunction from standard merits
26 discovery, which is set for a standard 30-day responsive period. Trace3 also respectfully submits
27 that parties should not be precluded from pursuing discovery during the merits phase of this
28 litigation that had been previously deemed overly burdensome during expedited discovery,
AVIS RIGHT REMAINE LLP
10 865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
including but not limited discovery related to Sycomp’s searches for Trace3 documents by hash
value identified in Category No. 1 of Trace3’s trade secrets. Trace3 respectfully submits that, in
light of the anticipated amendments to the Complaint and the amended Trade Secret
Identification, to the extent Defendants seek to move to compel any discovery, that such motions
be set on minimum statutory notice, and that standard discovery procedures under the Discovery
Act apply to motion practice and responsive deadlines.
Defendants’ anticipated motions to compel as to expedited discovery are not ripe for
resolution until the parties have further conferred regarding the production of documents in
connection with full merits discovery. To the extent that Defendants insist upon moving forward
10 with discovery motion practice based on the previously-served expedited discovery, Trace3
11 requests an Informal Discovery Conference to help resolve these matters and/or narrow the scope
12 of matters in dispute. Trace3 notes for the Court that Sycomp’s motion to compel was filed after
13 Trace3 first sent Sycomp a draft of this CMC statement and without any further attempt to meet
14 and confer with Trace3 regarding the outstanding issues. Trace3 intends to oppose this motion on
15 all relevant grounds, but especially that Sycomp appears to have filed this motion to further drive
16 up fees in this action and not to obtain any relevant discovery that it otherwise could have
17 received through simply picking up the phone and speaking with counsel. Trace3 requests
18 guidance from the Court as to how Trace3 should comply with expedited discovery requests and
19 Sycomp’s improperly-filed motion to compel given that Trace3 has not filed a motion for
20 preliminary injunction before the temporary restraining order will have expired.
21 e. Confidentiality Designations and Motions to Seal
22 Trace3 also anticipates continued disputes over confidentiality designations and motions
23 to seal. Defendants have blanketed all of their discovery responses, document productions and
24 deposition testimony as “Attorneys’ Eyes Only” depriving Trace3 from learning the evidence
25 uncovered to date and assisting counsel in the prosecution of the case. Meanwhile, Defendants
26 have opposed every effort by Trace3 to seal and designate as confidential materials it has
27 produced in discovery. The Court has before it three opposed Trace3 motions to seal (we are up
28 to motion number six (6)), a motion to uphold confidentiality designations, and a hearing is
AVIS RIGHT REMAINE LLP
11 865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
scheduled for September 21, 2023. Disputes over confidentiality, though the information is
largely the same each time, are unnecessary, particularly since the Court has already made clear
that by allowing a document to be received under seal does not mean a document is or is not a
trade secret. That being said, Trace3 is hopeful that the Parties can work cooperatively to resolve
these confidentiality disputes and avoid unnecessarily burdening the Court with them. Trace3
remains concerned that Sycomp is simply opposing these motions and challenging confidentiality
designations to drive up costs.
f. Response to Defendants’ Requested OSC re Sanctions
Sycomp’s request for this Court to set an OSC re sanctions because Trace3 has not filed a
10 motion for preliminary injunction before the twice-extended TRO expires highlights how Sycomp
11 has used the cost of litigation to obtain a tactical advantage in this case. No case supports the
12 imposition of sanctions for failure to seek relief for remediation that should have already been
13 completed by the Defendants, nor does Sycomp cite any. Trace3 and its counsel should not be
14 subjected to incessant threats of sanctions and accusations of bad faith for litigating this action.
15 Moreover the good faith basis for Trace3’s allegations has been confirmed by expedited
16 discovery, which showed:
17 At least three former employees stole over a sum total of 180,000+ trade secret and
18 confidential files in violation of their confidentiality obligations to Trace3 in preparation to
19 join Sycomp;
20 On Devin Tomcik’s first day of work at Sycomp (and after receiving Trace3’s cease and desist
21 letter reminding him of his preservation obligations), he physically destroyed a thumb drive
22 with a hammer that forensic evidence shows is how he stole Trace3 trade secrets and
23 confidential information from Trace3—and Sycomp will not answer any questions about
24 whether there is evidence that such a thumb drive was attached to their systems;
25 On Timothy Cordell’s first day of work at Sycomp (and after receiving Trace3’s cease and
26 desist letter reminding him of his preservation obligations), he accessed and deleted Trace3
27 trade secrets (including customer lists, vendor lists, quotes, and historical Trace3 information)
28 from the Trace3 Dropbox account controlled by his domestic partner and then-Trace3
AVIS RIGHT REMAINE LLP
12 865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
employee from a still-unidentified Windows device (not an iPhone as he had falsely stated in
his declaration, despite forensic evidence now showing this to be another misrepresentation to
the Court);
Between April 11 and April 13, Timothy Cordell was emailing with a current Sycomp
employee who also was formerly employed by Trace3, John Barnes, about providing services
to a specific Trace3 client, while directing his domestic partner to pull historical sales report
for 2021 and 2022 for that same client (which appears to have been a departure from his
ordinary work activities);
While employed at Sycomp, Devin Tomcik performed Sycomp work using the computer that
10 he used to copy over and store Trace3 confidential and trade secret information, as evidenced
11 by the fact that certain emails he wrote while employed by Sycomp still had a Trace3
12 signature on the bottom (and confirmed by Tomcik under oath in deposition);
13 Sycomp admitted that it could offer no independent basis to offer how it came up with pricing
14 for key early wins, and its PMK, when asked specifically, did not deny that the Individual
15 Defendants may have used Trace3’s pricing to undercut the competition.
16 Trace3 uncovered relevant, responsive evidence from third-party business relationships
17 corroborating Trace3’s concerns about Sycomp’s nascent and struggling RnR business, which
18 Sycomp’s counsel demanded that Trace3 “delete” despite admitting no claim to privilege,
19 and when Trace3 refused, Sycomp’s counsel threatened to “forward the chain” of
20 correspondence to Trace3’s business relationship, so “you [Nicole Phillis] and Trace3 can
21 answer to [business relationship] directly”;
22 Despite also receiving a cease and desist and preservation letter, Sycomp did nothing to
23 prevent the former Trace3 employees from attaching external storage devices and/or cloud
24 storage devices from their Sycomp computers; and
25 Despite being provided with the hash values for the vast majority of Trace3’s trade secret and
26 confidential documents, Sycomp has refused to run automated searches to determine whether
27 such documents exist on its system (despite the fact that a forensic examiner has now
28
AVIS RIGHT REMAINE LLP
13 865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
confirmed that such searches could be done for a fraction of the cost represented to the Court
by Sycomp).
Trace3 respectfully submits that this action is obviously not a case of inevitable disclosure
and that there is a clear, good faith basis for Trace3 to have pursued and initiated this litigation.
The unrelenting threats bad faith sanctions motions from Sycomp (threatened no less than 20
times in writing to date and in virtually every single email from Mr. Dharnidharka, including in
emails prior to the inception of the case when Trace3 sought informal resolution) are unnecessary
and unhelpful to resolving this action on the merits. Trace3 has also flagged this for the Court, but
wishes to reiterate that Mr. Dharnidharka emails, referring toTrace3 counsel as “cute” and
10 “insufferable” among other epithets, harm this profession and the lawyers who do this work.
11 Trace3’s lawyers should not be subjected to such personal attacks for merely doing their jobs;
12 should they continue, Trace3 will be forced to seek appropriate relief with the Court.
13 2. Defendants’ Position
14 a. Preliminary Injunctive Relief
15 There is no “right” for Trace3 to reserve because the Court-ordered deadline for Trace3 to
16 file any motion for preliminary injunction was September 6, 2023. Trace3 elected not to file any
17 such motion after its August 30, 2023 ex parte application was denied. Because the Court
18 imposed a deadline to file any such motion by order (and denied Trace3’s ex parte application to
19 extend that deadline based on a failure to show good cause), Defendants contend that Trace3
20 cannot file a motion for preliminary injunction without an order from this Court allowing Trace3
21 to do so based on a motion for reconsideration of the September 1, 2023 Order per Code of Civil
22 Procedure § 1008.
23 b. Amendment of the Complaint
24 If Trace3 intends to file a first amended complaint as a matter of right, it should do so now
25 without further delay and without forcing Defendants to waste further resources on a demurrer
26 and/or motion for summary adjudication. Defendants’ extensive briefing and argument to date
27 have identified the material flaws in Trace3’s inevitable disclosure trade secret claim and related
28
AVIS RIGHT REMAINE LLP
14 865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
defective and preempted claims. No further meet and confer should be required and no further
delay should be tolerated.
c. Merits Discovery
When the Court extended Trace3’s deadline to file a motion for preliminary injunction and
granted broad discovery to Trace3, Sycomp made clear to the Court that it intended to file its
motion to compel as soon as possible. In response, the Court suggested that Sycomp not file its
motion until the preliminary injunction proceedings concluded. Sycomp followed the Court’s
guidance. As such, after Trace3’s September 6 deadline to file any motion for preliminary
injunction expired with no such filing by Trace3, Sycomp filed its motion to compel on
10 September 7. The motion is set to be heard on November 30, 2023. Sycomp would appreciate
11 the Court significantly advancing this hearing date if possible since this motion relates to
12 discovery requests served in May 2023 and because the Court has suggested that Sycomp hold off
13 on filing a motion for summary judgment or adjudication until the record is more fully developed
14 (which Sycomp does not believe is necessary, but is generally inclined to honor). Trace3’s
15 suggestion that a (third) IDC and further meet and confer should occur before the motion could be
16 filed finds no support in any statute, rule, or case law.
17 Further, Trace3’s suggestion that it can now (1) re-litigate a prior discovery order, (2)
18 bring a motion to compel discovery outside of the deadlines set by prior orders and the Code of
19 Civil Procedure, and/or (3) serve copy-cat discovery requests to avoid statutory bars, is mistaken.
20 Unzipped Apparel, LLC v. Bader, 156 Cal. App. 4th 123, 127 (2007).
21 Trace3 includes a reference in its “Merits Discovery” position above about an “amended
22 Trade Secret Identification.” To the extent this refers to a forthcoming amendment, Trace3 does
23 not have leave of the Court to amend its current trade secret identification. Trace3 is on its fifth
24 or sixth identification depending on how the various “TS/CI” lists and other identifications,
25 modifications, and amendments are counted. Trace3 should not be granted leave to serve a
26 further amended Code of Civil Procedure § 2019.210 statement unless it can show good cause,
27
Trace3’s positions in this regard feels like a quasi-filibuster designed to delay any further
28 substantive ruling or action in the lawsuit until after a new judge takes over Department 1 in
January 2024.
AVIS RIGHT REMAINE LLP
15 865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
JOINT CASE MANAGEMENT STATEMENT (213) 633-6800
4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899
which it cannot do. See, e.g., Perlan Therapeutics, Inc. v. Sup. Ct., 178 Cal. App. 4th 1333, 1350-
51 (2009) (a trade secret plaintiff does not have an “unrestricted, unilateral right to subsequently
amend its trade secret statement” and may do so only on a showing of “good cause” under
“appropriate circumstances”). Sycomp should not be forced to continue to chase a moving target.
d. Confidentiality Designations and Motions to Seal
If and when Trace3 provides notice of a challenge to a designation under the Stipulated
Protective Order, Sycomp will address it in-line with the Stipulated Protective Order’s provisions.
To date, each time Trace3 has (informally) asked Sycomp to remove an AEO designation,
Sycomp has done so the same day Trace3 made the request. The same cannot be said about
10 Trace3’s reaction to Sycomp’s (formal) de-designation requests. Trace3’s general suggestion of
11 over-designation by Sycomp is not well-founded. Notably, it is Trace3 who contends that clearly
12 personal, non-confidential material is “Highly Confidential – Attorneys’ Eyes Only” and
13 otherwise sealable, which will be addressed in a hearing on September 21, 2023.
14 Defendants addressed Trace3’s comments about other motion practice above.
15 e. Trace3’s TRO Should Be Dissolved
16 Because Trace3 did not file a motion for preliminary injunction by the September 6
17 deadline to do so, the Court should dissolve the TRO.
18 D. Suggestions for Efficient Management
19 1. Trace3’s Position
20 Trace3 proposes the Court set some key deadlines to encourage the parties to meet and
21 confer about their disputes over discovery and other matters as follows:
22 (1) Deadline for parties to meet and confer about any discovery disputes or issues with
23 neutral forensic examination: September 20, 2023
2
Preview
JEREMY BEN MERKELSON (Admitted PHV), DC jeremymerkelson@dwt.com NICOLE PHILLIS (SBN 291266), LA nicolephillis@dwt.com MARINA GRUBER (SBN 271542), SF marinagruber@dwt.com DAVIS WRIGHT TREMAINE LLP SF: 50 California St., 23rd Fl., San Francisco, CA 94111 LA: 865 S. Figueroa St., 24th Fl., Los Angeles, CA 90017 DC: 1301 K Street NW, Ste 500 East, Wash., DC 20005 Telephone: (415) 276-6500 / Fax: (415) 276-6599 Attorneys for Plaintiff TRACE3, LLC RAJIV DHARNIDHARKA (SBN 234756) Rajiv.Dharnidharka@us.dlapiper.com JEANETTE BARZELAY (SBN 261780) Jeanette.Barzelay@us.dlapiper.com MICAH CHAVIN (SBN 313634) Micah.Chavin@us.dlapiper.com DLA PIPER LLP (US) 2000 University Ave. East Palo Alto, CA 94303 Telephone: (650) 833-2300 / Fax: (650) 833-2001 Attorneys for Defendant SYCOMP, A TECHNOLOGY COMPANY, INC. LYN R. AGRE (SBN 178218) lagre@glennagre.com EDWARD E. SHAPIRO (SBN 326182) eshapiro@glennagre.com GLENN AGRE BERGMAN & FUENTES 44 Montgomery Street, Suite 2410, San Francisco, CA 94104 Telephone: (415) 599-0880 Attorneys for Defendants Timothy Cordell, Geoffrey Peterson, and Devin Tomcik 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, JOINT CASE MANAGEMENT STATEMENT vs. SYCOMP A TECHNOLOGY COMPANY, Date: September 14, 2023 INC., a California corporation; TIMOTHY Time: 2:00 p.m. CORDELL, an individual; GEOFFREY Dept: PETERSON, an individual; DEVIN TOMCIK, an individual; and DOES 1-10, inclusive; Action Filed: May 12, 2023 Defendants. RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 Plaintiff TRACE3, LLC (“Trace3”) and Defendants SYCOMP A TECHNOLOGY COMPANY, INC. (“Sycomp”), TIMOTHY CORDELL (“Cordell”), GEOFFREY PETERSON (“Peterson”), and DEVIN TOMCIK (“Tomcik”) (collectively, “the Parties”), by and through their respective counsel, hereby submit this Joint Case Management Conference Statement in advance of the Case Management Conference scheduled for September 14, 2023, at 2:30 p.m. in Department 1. A. Summary of the Case. 1. Trace3’s Position This is a civil action for trade secret misappropriation, unfair competition, breach of 10 contract, breach of fiduciary duty, violation of California Penal Code § 502, and other tortious 11 conduct against a small subset (three out of a larger group of ten) of former Trace3 employees 12 who resigned, en masse, on or about April 17, 2023, to join a competitor, Defendant Sycomp. 13 The three former Trace3 employees, Defendants Peterson, Tomcik, and Cordell (“Individual 14 Defendants”), actively abused and exploited their privileged access to Trace3 computer networks, 15 systems and devices to misappropriate hundreds of thousands of Rack and Roll (“RnR”) Build 16 Documents, customer lists, vendor lists, and proprietary and competitively-sensitive sales, pricing, 17 and profit histories and other competitively sensitive data constituting Trace3’s trade secrets and 18 confidential information for the benefit of themselves and their soon-to-be new employer, 19 Sycomp. Sycomp’s reasons for doing so were clear: to get a head start in the Northern California 20 market, particularly the market for RnR services—where Sycomp had struggled to gain 21 substantial market share for years. 22 The Spring of 2023 was the “Wild West” period for Sycomp and the Individual 23 Defendants, who, together, successfully steered to Sycomp several new customers with whom 24 Sycomp had not previously done RnR business in the United States, moving lucrative contracts by 25 leveraging Trace3’s trade secret and confidential information, including historical sales and 26 pricing information, to win the business at Sycomp. As to certain deals with particular customers, 27 the Individual Defendants had actively worked on those deals while working at Trace3 and chose 28 not to register them at Trace3 knowing they were going to be leaving for Sycomp. Further, once AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 Defendants had received Trace3’s cease and desist letters in April 2023, and having realized they had been caught in the act, two separate Individual Defendants attempted to cover their tracks by intentionally spoliating relevant evidence of their misconduct both tangible (a USB drive) and intangible (Dropbox), forever depriving Trace3 of those records of what they took, how they used them, and whether they copied them or used them on any other devices. Trace3 seeks damages, injunctive relief, and attorneys’ fees against Defendants, asserting causes of action for (1) violation of the California Uniform Trade Secrets Act, Cal Civ. Code § 3426 et seq., (2) breach of contract, (3) breach of implied covenant of good faith and fair dealing, (4) violation of Penal Code § 502 (Comprehensive Data Access and Fraud Act), (5) breach of fiduciary duty, (6) violation of 10 California Business & Professions Code § 17200 et seq.; (7) intentional interference with 11 contractual relations; (8) intentional interference with prospective economic advantage; (9) 12 negligent interference with contractual relations; and (10) negligent interference with prospective 13 economic opportunity. 14 Before filing this lawsuit, Trace3 reached out to Sycomp to try to get the company to do 15 what it has now resisted for five months: search its files for the specific documents that Trace3 16 knows the Individual Defendants took. Mr. Dharnidharka wrote an email on May 1, 2023 17 confirming that (1) he refused to so much as get on the telephone to speak with Trace3’s counsel; 18 (2) Sycomp insisted on receiving both “file names and hash values” of the 400,000 plus files at 19 issue; (3) Sycomp refused to accept Trace3’s file listing under a simple confidentiality and non- 20 disclosure agreement, though the compendium essentially provides a roadmap to all of Trace3’s 21 NorCal RnR work, and said there was nothing to talk about unless Trace3 gave that listing over 22 without confidentiality protections; (4) Sycomp refused to allow a neutral forensic examiner to 23 conduct the search, as offered by Trace3 and (5) while knowing that Devin Tomcik had already 24 destroyed a thumb drive with a hammer (since that apparently occurred on April 24), and that 25 Sycomp had already been using Trace3’s pricing information to undercut the competition and win 26 new business from Trace3 as shown in the documents produced during expedited discovery, Mr. 27 Dharnidharka previewed his defense of this matter, expressing his belief that Trace3 was pursuing 28 Sycomp under an inevitable disclosure theory. This is not an inevitable disclosure case, as AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 described below, and, as with many trade secrets cases, proof by circumstantial evidence is often necessary, particularly when the wrongdoers destroy the materials showing their misconduct. 2. Defendants’ Position On Friday, April 21, 2023, Trace3 sent demand letters to Defendants (including former defendant Elias) and six other former Trace3 employees who resigned from Trace3 on April 16 and 17 and were hired by Sycomp. Trace3’s letters demanded, among other things, that Sycomp search its files for any Trace3 confidential material that may have been brought over to Sycomp by any of its new hires. On Monday, April 24, Sycomp confirmed in writing that its new hires should not have brought over any Trace3 confidential material and agreed to search for any 10 Trace3 files if Trace3 would (1) pay for the cost of the search and (2) identify any such files for 11 the search by hash value and file name. Trace3 responded on Thursday, April 27 with excuses for 12 not agreeing to Sycomp’s offer and demanded that Sycomp turn over devices that belonged to 13 Trace3 that it contended its former employees still possessed. Sycomp responded in writing on 14 Friday, April 28 to offer assistance with locating and returning any such devices if Trace3 would 15 identify them. Trace3 never responded in substance. Trace3 also received a substantive letter 16 from counsel for the former employees on May 8, 2023 in response to the April 21 demand 17 letters, but Trace3 never responded. Instead, Trace3 moved forward with litigation, filing two 18 lawsuits three days later on May 12, 2023, one in this Court and one in Arizona state court. 19 Trace3’s Arizona lawsuit is against Sycomp, its direct competitor, and Trace3 former 20 employee and California resident, Dawn McCale (who joined Sycomp), to attempt to enforce 21 invalid and sanctionable non-solicit and non-compete contract provisions with her. Against 22 23 Trace3 sent Defendants an initial draft of this joint statement on Wednesday, September 6 at 4:15 pm and demanded Defendants provide their portion by 5 p.m. the next day. Defendants 24 provided their portion of the statement, exactly as it is written here (other than this footnote) at 3:47 p.m. on September 7. Trace3 said it “expect[s]we will have a few” changes before the filing 25 deadline on September 8. At noon on September 8, rather than “a few” changes, Trace3 surprised Defendants with a near-complete rewrite of its portion of this statement loaded with personal 26 attacks and rhetoric, not in tracked changes and adding five pages of new material. Trace3 requested Defendants’ final revisions by 2:00 p.m. today. Defendants cannot respond to Trace3’s 27 extensive new argument and assertions in the two-hour window provided. As such, Defendants will be prepared to address Trace3’s five pages of new material and other newly asserted positions 28 at the CMC. Defendants would be happy to provide the Court with a redline comparing Trace3’s September 6 and September 8 drafts. AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 extensive law to the contrary, Trace3 contends that Arizona law should apply to its former employment relationship with Ms. McCale. Ms. McCale and Sycomp moved to dismiss the Arizona lawsuit. The briefing is ongoing. Trace3’s California lawsuit advances an inevitable disclosure trade secret claim with other deficient and preempted claims (which is sanctionable per Civil Code § 3426.4) against four of its former employees who joined Sycomp (Elias, Peterson, Tomcik, and Cordell) and against Sycomp to impede employment mobility in violation of Business & Professions Code § 16600 and the extensive case law interpreting it. For the last four months, Trace3 has inundated Defendants and this Court with a never- 10 ending flood of motions, discovery, ex parte applications and the like, leading up to a motion for 11 preliminary injunction that was ordered to be filed by September 6, 2023 after multiple 12 extensions. But then Trace3 did not file any such motion. The Court, which is very familiar with 13 Trace3’s conduct, should consider issuing an OSC re sanctions in response to Trace3’s eleventh- 14 hour pivot following aggressive and expedited litigation that has cost Defendants hundreds of 15 thousands of dollars to address. 16 Additionally, since Trace3 did not file a motion for preliminary injunction, the Court 17 should immediately vacate the “follow the law” TRO it issued, so that the TRO cannot be used as 18 a marketing weapon by Trace3. 19 B. Summary of Prior Case Management Conference Orders and Progress. 20 1. Trace3’s Position 21 This is the first case management conference. Because there have been no prior case 22 management confers, we summarize for the Court’s benefit its other prior orders that remain 23 pending and the progress on those orders. 24 Following “Coffee Gate,” Trace3 dismissed Elias from this lawsuit. Sadly, however, Trace3 has 25 repeatedly lied to the Court (and the public) about statements in Peterson’s declarations (and the related statements in the May 8, 2023 letter from his counsel to Trace3’s counsel) to suggest he 26 intentionally absconded to Sycomp with troves of Trace3 trade secret and confidential material. Having zero evidence to support this debunked falsehood after extensive expedited discovery (and 27 all facts to the contrary), Defendants expect Trace3 will voluntarily dismiss Peterson to attempt to minimize its Civil Code § 3426.4 exposure. 28 Trace3’s knowingly false “head start” allegations and related allegations about the “Rack and Roll” market were thoroughly rebutted in the July 14, 2023 Declaration of Saurabh Saxena. AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 Sycomp Forensic Search. On May 23, 2023, the Court entered its Order (1) granting limited TRO and OSC re PI; (2) authorizing “limited expedited discovery” for the “benefit [of] the parties in preparation for the preliminary injunction hearing” (5/23/23 Order at 3:24–4:4); and (3) by June 12, Defendants must search electronic devices for nine Trace3 documents (Id., 3:13-23.) On June 12, Sycomp filed its Statement regarding Forensic Search with a “false positive” but it has never produced the “false positive” to date notwithstanding the motion to compel order (see below). And Sycomp’s PMK testified that the search did not capture emails or slack messages in the first place, raising significant concerns about Defendants’ compliance with this order. 10 Neutral Forensic Examination of Individual Defendants. On August 7, 2023, the Court 11 granted Trace3’s motions extend the TRO until September 29 and ordered a neutral forensic 12 examination of Individual Defendants’ devices. On August 22, 2023, the Court clarified that 13 the devices must be imaged and then returned “with instructions to delete all Trace3 14 information,” and that Trace3 need not accept previously copied forensic images, and that 15 “within 3 calendar days” after the Devices are returned, the “Individual Defendants must 16 provide declarations stating under oath that they have deleted all Trace3 confidential 17 information from their devices.” (Id.) The Court also encourages the parties to meet and 18 confer regarding whether, how, and when the images will be searched. (Id.) That process 19 remains ongoing, though Individual Defendants appear to have taken the position there will be 20 no searches at all. Trace3 also anticipates issues with respect to whether the neutral forensic 21 examiner, FTI Consulting, will be able to provide the “instructions” envisioned by the Court. 22 Sycomp Compliance with Order on Motion to Compel. On August 7, 2023, the Court 23 ordered that “[w]ithin 7 calendar days of the service of an amended TS Disclosure by 24 Trace3, Sycomp must respond with Code-compliant responses (with no objections except for 25 privilege and work product) to all of the propounded discovery requests.” (8/7/23 Order at 26 10:10–13.) The Court further ordered, “Sycomp must sit for a PMK deposition well before 27 the preliminary injunction hearing” as to all the noticed topics. (Id. at 10:14–19 [emphasis 28 added].) Sycomp is not in compliance with the Order on either of these points as both its AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 production and PMK deposition were woefully deficient. But, Trace3 hopes that we can meet and confer to resolve these issues without burdening the Court with another discovery dispute. Spousal Privilege Issue. On August 28, 2023, Trace3 and Third Party Thompson submitted a joint status report on the spousal privilege issues that the Court sua sponte converted into Trace3’s opening brief in support of a motion to compel. Counsel for Trace3 and Ms. Thompson conferred and agreed on a modified briefing scheduled that gives Mr. Sorensen more time to file his opposition in light of his personal circumstances while allowing Trace3 the opportunity to include additional evidence in support of its motion on reply, and with Thompson afforded a sur-reply, to address facts that Trace3 would have raised had it had the 10 opportunity to file a motion directed to this issue on its own before the Court issued its sua 11 sponte order. The motion will be fully briefed by September 22. 12 Preliminary Injunction Motion and TRO Expiration. The TRO will lapse on September 13 29, 2023. There is no application before the Court to dissolve the TRO before that date and 14 there is no evidence or argument before the Court to upset its earlier finding, extending the 15 TRO, based on the “not-insignificant possibility that [Trace3’s trade secrets] were used by 16 Sycomp and the Individual Defendants to take business from Trace3.” (8/7/23 Order at 3:27- 17 4:4, 6:3-10.) Pursuant to Cal. Civ. Proc. § 527(a) and Civil Code § 3426.2, Trace3 held back 18 on moving for preliminary injunctive relief on the briefing schedule previously set by the 19 Court to avoid the cost and burden of filing a motion that could be mooted by relief this Court 20 already ordered (but that Defendants have not complied with) and to develop evidence from 21 both Sycomp and the Individual Defendants that is directly relevant to the injunctive relief 22 Trace3 seeks (including remediation). Trace3’s position is that the Court’s prior orders do not 23 bar Trace3 from rights afforded to it pursuant to pursuant to Cal. Civ. Proc. § 527(a) and Civil 24 Code § 3426.2, and that to rule otherwise would be reversible error. 25 2. Defendants’ Position 26 Trace3 has materially distorted the case history and Defendants do not believe this joint 27 statement is the proper medium for correcting the record. This section is supposed to address 28 AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 “any orders from prior case management conferences,” but there are none because this is the first case management conference in this lawsuit. C. Procedural and Practical Problems 1. Trace3’s Position a. Reservation of Rights as to Preliminary Injunctive Relief Pursuant to Cal. Civ. Proc. § 527(a) and Civil Code § 3426.2, Trace3 did not move for preliminary injunctive relief on the briefing schedule previously set by the Court to avoid the cost and burden of filing a motion that could be mooted by relief this Court already ordered (but that Defendants have not complied with) and to develop evidence from both Sycomp and the 10 Individual Defendants that is directly relevant to the injunctive relief Trace3 seeks (including 11 remediation). This evidence includes whether Sycomp has any copies of Trace3 Build 12 Documents on its systems as well as the results of the Court-ordered neutral forensic examination 13 of the Individual Defendants’ devices, the discovery the Court ordered that Sycomp complete, and 14 resolution of the spousal privilege issue that is pending before the Court. Given that this Court 15 ordered that such evidence be developed in aid of Trace3’s motion for preliminary injunction 16 before the hearing on September 29, Trace3 respectfully submits that both the Individual 17 Defendants and Sycomp should be held to their Court-ordered obligations regardless of whether 18 the TRO expires on September 29, including completion of the neutral forensic examination and 19 compliance with this Court’s order granting the motion to compel. Though Trace3 understands 20 that the TRO will have expired before it will file any forthcoming motion for preliminary 21 injunction, Trace3 reserves its rights to seek appropriate injunctive relief, particularly if 22 Defendants are unwilling to remediate voluntarily, once Trace3 is has the benefit of the Court- 23 ordered discovery. 24 While Trace3 understands that the TRO may lapse as of September 29, both the Individual 25 Defendants and Sycomp are still obligated to complete the neutral forensic examination and 26 produce the documents they were ordered to produce within the scope of expedited discovery, 27 which may prove that preliminary injunctive relief is warranted and necessary. To that end, 28 Sycomp’s request to dissolve the TRO in a CMC statement is improper and fails to establish the AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 necessary record to warrant early termination of temporary injunctive relief. Indeed, the Court’s order extending the TRO until September 29, 2023, was based on the “not-insignificant possibility that [Trace3’s trade secrets] were used by Sycomp and the Individual Defendants to take business from Trace3.” (8/7/23 Order at 3:27-4:4, 6:3-10.) The Court’s prior orders do not preclude Trace3 from filing a motion for preliminary injunctive relief upon an appropriate showing, including but not limited to once it receives the Court-ordered neutral forensic examination and Sycomp’s confirmation of its compliance with the Court’s order on the motion to compel. Sycomp’s position that Trace3 must seek “reconsideration” despite the express protections afforded by Cal. Civ. Proc. § 527(a) and Civil Code § 3426.2 (without citing any legal authority in 10 support thereof), is legally incorrect and invites reversible error. 11 b. Enforcement of the Court’s Order Compelling Discovery from Sycomp 12 On August 30, 2023, after the noticed depositions during expedited discovery concluded, 13 Sycomp produced over 15,000 pages of responsive documents, though it is not clear to which 14 requests this discovery is responsive or whether Sycomp maintains that its production as required 15 by this Court’s order is complete. Sycomp’s delay in producing these documents further 16 prejudiced Trace3’s ability to prepare a motion for preliminary injunction. Trace3’s review of 17 these documents is ongoing but there appear to be obvious deficiencies in Sycomp’s production, 18 including Sycomp’s intentional failure to produce documents from the early “Wild West” portion 19 of relevant period, including March and early April, as well as a surprising lack of internal emails 20 between Sycomp-only employees and no Slack or internal messaging documents whatsoever. 21 Sycomp also admitted during PMK deposition that Sycomp’s June 12 Forensic Search failed to 22 include any Sycomp emails or Slack messages (through which files may be transferred and 23 attached)—a glaring deficiency in what it had claimed was a search complaint with this Court’s 24 May 23 order. Trace3 remains concerned that Sycomp is withholding production and documents 25 to run up discovery fees to pressure Trace3 to abandon the action. Given the Court’s order 26 27 It appears that Sycomp will not produce any relevant, responsive discovery in this matter absent a court order requiring them to do so. Trace3 anticipates renewed motion practice regarding its 28 forthcoming discovery requests to search for hash values of documents for Category No. 1 given that the parties have moved into merits discovery. AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 granting Trace3’s motion to compel expedited discovery on August 8 and August 22, Trace3 requests that Sycomp confirm whether it has complied fully with the Court’s order granting Trace3’s motion to compel, or whether Trace3 should expect any further productions. Trace3 reserves all rights to seek appropriate relief, sanctions, and/or contempt arising out of Sycomp’s untimely production, failure to comply with the June 12 Order, failure to answer questions at the PMK deposition for admitted lack of preparation by Mr. Saxena, and the resultant prejudice to Trace3. c. Amendment of the Complaint Pursuant to Code of Civil Procedure § 472(a), Trace3 anticipates it will amend its 10 Complaint as a matter of right to address the new facts uncovered during expedited discovery and 11 that was developed during the depositions of Sycomp’s PMK, Saurabh Saxena, and the Individual 12 Defendants. Trace3 understands that Defendants anticipate filing a demurrer to the Complaint. 13 Trace3 requests that any amendment deadline be set after the deadline for the parties to meet and 14 confer regarding Defendants’ anticipated demurrer so that Trace3 can address these issues 15 consistent with Code of Civil Procedure § 430.41. Sycomp’s stated intent to file a demurrer 16 requires a conferral, though it is not apparent that Sycomp will engage in such conferral as it has 17 already filed a motion to compel without any conferral with Trace3. Sycomp’s threatened motion 18 for summary adjudication and/or summary judgment is premature and would be subject to a Code 19 of Civil Procedure § 437c(h) challenge given that the parties have not even entered merits 20 discovery to date. Sycomp’s premature threats of motion practice do little to advance resolution 21 on the merits of this action and only serve to further multiply fees in this already complex action. 22 d. Merits Discovery 23 Trace3 anticipates moving directly into merits discovery. Trace3 respectfully requests that 24 this Court separate the previously-filed discovery under the expedited schedule related to the 25 temporary restraining order and the motion for preliminary injunction from standard merits 26 discovery, which is set for a standard 30-day responsive period. Trace3 also respectfully submits 27 that parties should not be precluded from pursuing discovery during the merits phase of this 28 litigation that had been previously deemed overly burdensome during expedited discovery, AVIS RIGHT REMAINE LLP 10 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 including but not limited discovery related to Sycomp’s searches for Trace3 documents by hash value identified in Category No. 1 of Trace3’s trade secrets. Trace3 respectfully submits that, in light of the anticipated amendments to the Complaint and the amended Trade Secret Identification, to the extent Defendants seek to move to compel any discovery, that such motions be set on minimum statutory notice, and that standard discovery procedures under the Discovery Act apply to motion practice and responsive deadlines. Defendants’ anticipated motions to compel as to expedited discovery are not ripe for resolution until the parties have further conferred regarding the production of documents in connection with full merits discovery. To the extent that Defendants insist upon moving forward 10 with discovery motion practice based on the previously-served expedited discovery, Trace3 11 requests an Informal Discovery Conference to help resolve these matters and/or narrow the scope 12 of matters in dispute. Trace3 notes for the Court that Sycomp’s motion to compel was filed after 13 Trace3 first sent Sycomp a draft of this CMC statement and without any further attempt to meet 14 and confer with Trace3 regarding the outstanding issues. Trace3 intends to oppose this motion on 15 all relevant grounds, but especially that Sycomp appears to have filed this motion to further drive 16 up fees in this action and not to obtain any relevant discovery that it otherwise could have 17 received through simply picking up the phone and speaking with counsel. Trace3 requests 18 guidance from the Court as to how Trace3 should comply with expedited discovery requests and 19 Sycomp’s improperly-filed motion to compel given that Trace3 has not filed a motion for 20 preliminary injunction before the temporary restraining order will have expired. 21 e. Confidentiality Designations and Motions to Seal 22 Trace3 also anticipates continued disputes over confidentiality designations and motions 23 to seal. Defendants have blanketed all of their discovery responses, document productions and 24 deposition testimony as “Attorneys’ Eyes Only” depriving Trace3 from learning the evidence 25 uncovered to date and assisting counsel in the prosecution of the case. Meanwhile, Defendants 26 have opposed every effort by Trace3 to seal and designate as confidential materials it has 27 produced in discovery. The Court has before it three opposed Trace3 motions to seal (we are up 28 to motion number six (6)), a motion to uphold confidentiality designations, and a hearing is AVIS RIGHT REMAINE LLP 11 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 scheduled for September 21, 2023. Disputes over confidentiality, though the information is largely the same each time, are unnecessary, particularly since the Court has already made clear that by allowing a document to be received under seal does not mean a document is or is not a trade secret. That being said, Trace3 is hopeful that the Parties can work cooperatively to resolve these confidentiality disputes and avoid unnecessarily burdening the Court with them. Trace3 remains concerned that Sycomp is simply opposing these motions and challenging confidentiality designations to drive up costs. f. Response to Defendants’ Requested OSC re Sanctions Sycomp’s request for this Court to set an OSC re sanctions because Trace3 has not filed a 10 motion for preliminary injunction before the twice-extended TRO expires highlights how Sycomp 11 has used the cost of litigation to obtain a tactical advantage in this case. No case supports the 12 imposition of sanctions for failure to seek relief for remediation that should have already been 13 completed by the Defendants, nor does Sycomp cite any. Trace3 and its counsel should not be 14 subjected to incessant threats of sanctions and accusations of bad faith for litigating this action. 15 Moreover the good faith basis for Trace3’s allegations has been confirmed by expedited 16 discovery, which showed: 17 At least three former employees stole over a sum total of 180,000+ trade secret and 18 confidential files in violation of their confidentiality obligations to Trace3 in preparation to 19 join Sycomp; 20 On Devin Tomcik’s first day of work at Sycomp (and after receiving Trace3’s cease and desist 21 letter reminding him of his preservation obligations), he physically destroyed a thumb drive 22 with a hammer that forensic evidence shows is how he stole Trace3 trade secrets and 23 confidential information from Trace3—and Sycomp will not answer any questions about 24 whether there is evidence that such a thumb drive was attached to their systems; 25 On Timothy Cordell’s first day of work at Sycomp (and after receiving Trace3’s cease and 26 desist letter reminding him of his preservation obligations), he accessed and deleted Trace3 27 trade secrets (including customer lists, vendor lists, quotes, and historical Trace3 information) 28 from the Trace3 Dropbox account controlled by his domestic partner and then-Trace3 AVIS RIGHT REMAINE LLP 12 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 employee from a still-unidentified Windows device (not an iPhone as he had falsely stated in his declaration, despite forensic evidence now showing this to be another misrepresentation to the Court); Between April 11 and April 13, Timothy Cordell was emailing with a current Sycomp employee who also was formerly employed by Trace3, John Barnes, about providing services to a specific Trace3 client, while directing his domestic partner to pull historical sales report for 2021 and 2022 for that same client (which appears to have been a departure from his ordinary work activities); While employed at Sycomp, Devin Tomcik performed Sycomp work using the computer that 10 he used to copy over and store Trace3 confidential and trade secret information, as evidenced 11 by the fact that certain emails he wrote while employed by Sycomp still had a Trace3 12 signature on the bottom (and confirmed by Tomcik under oath in deposition); 13 Sycomp admitted that it could offer no independent basis to offer how it came up with pricing 14 for key early wins, and its PMK, when asked specifically, did not deny that the Individual 15 Defendants may have used Trace3’s pricing to undercut the competition. 16 Trace3 uncovered relevant, responsive evidence from third-party business relationships 17 corroborating Trace3’s concerns about Sycomp’s nascent and struggling RnR business, which 18 Sycomp’s counsel demanded that Trace3 “delete” despite admitting no claim to privilege, 19 and when Trace3 refused, Sycomp’s counsel threatened to “forward the chain” of 20 correspondence to Trace3’s business relationship, so “you [Nicole Phillis] and Trace3 can 21 answer to [business relationship] directly”; 22 Despite also receiving a cease and desist and preservation letter, Sycomp did nothing to 23 prevent the former Trace3 employees from attaching external storage devices and/or cloud 24 storage devices from their Sycomp computers; and 25 Despite being provided with the hash values for the vast majority of Trace3’s trade secret and 26 confidential documents, Sycomp has refused to run automated searches to determine whether 27 such documents exist on its system (despite the fact that a forensic examiner has now 28 AVIS RIGHT REMAINE LLP 13 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 confirmed that such searches could be done for a fraction of the cost represented to the Court by Sycomp). Trace3 respectfully submits that this action is obviously not a case of inevitable disclosure and that there is a clear, good faith basis for Trace3 to have pursued and initiated this litigation. The unrelenting threats bad faith sanctions motions from Sycomp (threatened no less than 20 times in writing to date and in virtually every single email from Mr. Dharnidharka, including in emails prior to the inception of the case when Trace3 sought informal resolution) are unnecessary and unhelpful to resolving this action on the merits. Trace3 has also flagged this for the Court, but wishes to reiterate that Mr. Dharnidharka emails, referring toTrace3 counsel as “cute” and 10 “insufferable” among other epithets, harm this profession and the lawyers who do this work. 11 Trace3’s lawyers should not be subjected to such personal attacks for merely doing their jobs; 12 should they continue, Trace3 will be forced to seek appropriate relief with the Court. 13 2. Defendants’ Position 14 a. Preliminary Injunctive Relief 15 There is no “right” for Trace3 to reserve because the Court-ordered deadline for Trace3 to 16 file any motion for preliminary injunction was September 6, 2023. Trace3 elected not to file any 17 such motion after its August 30, 2023 ex parte application was denied. Because the Court 18 imposed a deadline to file any such motion by order (and denied Trace3’s ex parte application to 19 extend that deadline based on a failure to show good cause), Defendants contend that Trace3 20 cannot file a motion for preliminary injunction without an order from this Court allowing Trace3 21 to do so based on a motion for reconsideration of the September 1, 2023 Order per Code of Civil 22 Procedure § 1008. 23 b. Amendment of the Complaint 24 If Trace3 intends to file a first amended complaint as a matter of right, it should do so now 25 without further delay and without forcing Defendants to waste further resources on a demurrer 26 and/or motion for summary adjudication. Defendants’ extensive briefing and argument to date 27 have identified the material flaws in Trace3’s inevitable disclosure trade secret claim and related 28 AVIS RIGHT REMAINE LLP 14 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 defective and preempted claims. No further meet and confer should be required and no further delay should be tolerated. c. Merits Discovery When the Court extended Trace3’s deadline to file a motion for preliminary injunction and granted broad discovery to Trace3, Sycomp made clear to the Court that it intended to file its motion to compel as soon as possible. In response, the Court suggested that Sycomp not file its motion until the preliminary injunction proceedings concluded. Sycomp followed the Court’s guidance. As such, after Trace3’s September 6 deadline to file any motion for preliminary injunction expired with no such filing by Trace3, Sycomp filed its motion to compel on 10 September 7. The motion is set to be heard on November 30, 2023. Sycomp would appreciate 11 the Court significantly advancing this hearing date if possible since this motion relates to 12 discovery requests served in May 2023 and because the Court has suggested that Sycomp hold off 13 on filing a motion for summary judgment or adjudication until the record is more fully developed 14 (which Sycomp does not believe is necessary, but is generally inclined to honor). Trace3’s 15 suggestion that a (third) IDC and further meet and confer should occur before the motion could be 16 filed finds no support in any statute, rule, or case law. 17 Further, Trace3’s suggestion that it can now (1) re-litigate a prior discovery order, (2) 18 bring a motion to compel discovery outside of the deadlines set by prior orders and the Code of 19 Civil Procedure, and/or (3) serve copy-cat discovery requests to avoid statutory bars, is mistaken. 20 Unzipped Apparel, LLC v. Bader, 156 Cal. App. 4th 123, 127 (2007). 21 Trace3 includes a reference in its “Merits Discovery” position above about an “amended 22 Trade Secret Identification.” To the extent this refers to a forthcoming amendment, Trace3 does 23 not have leave of the Court to amend its current trade secret identification. Trace3 is on its fifth 24 or sixth identification depending on how the various “TS/CI” lists and other identifications, 25 modifications, and amendments are counted. Trace3 should not be granted leave to serve a 26 further amended Code of Civil Procedure § 2019.210 statement unless it can show good cause, 27 Trace3’s positions in this regard feels like a quasi-filibuster designed to delay any further 28 substantive ruling or action in the lawsuit until after a new judge takes over Department 1 in January 2024. AVIS RIGHT REMAINE LLP 15 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 JOINT CASE MANAGEMENT STATEMENT (213) 633-6800 4880-5516-7870v.1 0121780-000001 Fax: (213) 633-6899 which it cannot do. See, e.g., Perlan Therapeutics, Inc. v. Sup. Ct., 178 Cal. App. 4th 1333, 1350- 51 (2009) (a trade secret plaintiff does not have an “unrestricted, unilateral right to subsequently amend its trade secret statement” and may do so only on a showing of “good cause” under “appropriate circumstances”). Sycomp should not be forced to continue to chase a moving target. d. Confidentiality Designations and Motions to Seal If and when Trace3 provides notice of a challenge to a designation under the Stipulated Protective Order, Sycomp will address it in-line with the Stipulated Protective Order’s provisions. To date, each time Trace3 has (informally) asked Sycomp to remove an AEO designation, Sycomp has done so the same day Trace3 made the request. The same cannot be said about 10 Trace3’s reaction to Sycomp’s (formal) de-designation requests. Trace3’s general suggestion of 11 over-designation by Sycomp is not well-founded. Notably, it is Trace3 who contends that clearly 12 personal, non-confidential material is “Highly Confidential – Attorneys’ Eyes Only” and 13 otherwise sealable, which will be addressed in a hearing on September 21, 2023. 14 Defendants addressed Trace3’s comments about other motion practice above. 15 e. Trace3’s TRO Should Be Dissolved 16 Because Trace3 did not file a motion for preliminary injunction by the September 6 17 deadline to do so, the Court should dissolve the TRO. 18 D. Suggestions for Efficient Management 19 1. Trace3’s Position 20 Trace3 proposes the Court set some key deadlines to encourage the parties to meet and 21 confer about their disputes over discovery and other matters as follows: 22 (1) Deadline for parties to meet and confer about any discovery disputes or issues with 23 neutral forensic examination: September 20, 2023 2