Preview
Rodney B. Sorensen (SBN 196926)
rsorensen@sorensenlawgroup.com
Joseph C. Schultz (SBN 199786)
jschultz@sorensenlawgroup.com
SORENSEN LAW GROUP, P.C.
303 Twin Dolphin Drive, Suite 600
Redwood City, CA 94065
Telephone: (650) 260-7500
Facsimile: (800) 863-6799
Attorneys for Third Party
STACY THOMPSON
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA - COMPLEX
TRACE3, LLC, a California limited liability Case No. 23CV415833
company;
Assigned for All Purposes to:
Plaintiff, Hon. Sunil R. Kulkarni
v. THIRD PARTY STACY THOMPSON’S
OPPOSITION TO TRACE3, LLC’S MOTION
SYCOMP A TECHNOLOGY COMPANY, TO COMPEL SECOND DEPOSITION OF
INC., a California corporation; TIMOTHY THIRD PARTY THOMPSON
CORDELL, an individual; LILIAN ELIAS, an
[Filed concurrently with Declaration of Rodney B.
individual; GEOFFREY PETERSON, an
Sorensen in Support of Opposition; Third Party
individual; DEVIN TOMCIK, an individual;
Stacy Thompson’s Objections to Trace3, LLC’s
and DOES 1-10, inclusive,
Evidence Submitted in Support of Motion]
Defendants.
Complaint Filed: May 12, 2023
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
1 Third Party Deponent Stacy Thompson respectfully submits the following Opposition to Trace3,
2 LLC’s motion to compel a second deposition.
3
4 I. INTRODUCTION
5 California Code of Civil Procedure section 2025.610, subdivision (a), provides that “[o]nce any
6 party has taken the deposition of any natural person . . . neither the party who gave, nor any other party
7 who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent
8 deposition of that deponent.” However, for good cause shown, the court may grant leave to allow a
9 subsequent deposition. Code Civ. Proc. § 2025.610(b). For the reasons identified below the Court should
10 not grant leave to Trace3 to allow it to take a second deposition of Third Party Thompson because it has
11 not demonstrated good cause.
12
13 II. ARGUMENT
14 A. Trace3’s Motion is Procedurally Defective
15 Code of Civil Procures s 2025.480 requires a party moving to compel further testimony from a
16 deponent to “lodge with the court a certified copy” of the deposition transcript containing the specific
17 questions for which an “answer” is sought. Code Civ. Proc. § 2025.480(h) & (i).
18 Here, Trace3 has failed to identify a single specific question it asked during Third Party
19 Thompson’s first deposition for which it seeks the Court to compel a response. This defect is fatal as
20 Third Party Thompson’s right to assert the marital communications privilege cannot be stripped away in
21 a vacuum. For this reason alone, Trace3’s motion should be denied.
22 B. The “Crime-Fraud” Exception to California’s Confidential Spousal
Communications Privilege is Not Applicable
23
1. Summary of Spousal Communication Privilege
24
The confidentiality of spousal communications in California is established by California Evidence
25
Code section 980, which provides as follows:
26
Subject to Section 912 and except as otherwise provided in this article, a
27 spouse (or his or her guardian or conservator when he or she has a guardian
or conservator), whether or not a party, has a privilege during the marital or
28 domestic partnership relationship and afterwards to refuse to disclose, and
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
1 to prevent another from disclosing, a communication if he or she claims the
privilege and the communication was made in confidence between him or
2 her and the other spouse while they were spouses.
3 Cal. Evid. Code § 980.
4 Unlike other privileges, such as the attorney-client and physician-patient privileges, both parties
5 to a confidential communication protected by the spousal privilege are holders of the privilege. People v.
6 Dorsey, 46 Cal.App.3d 706, 717 (1975) (the “privilege against disclosure of privileged communications
7 is vested in each spouse and consequently if a spouse is called as a witness he or she may not testify as to
8 confidential communications without his or her consent and the consent of the other spouse”) (emphasis
9 added).
10 2. Summary of the Crime-Fraud Exception to the Spousal Privilege
11 California Evidence Code section 981, commonly known as the “crime-fraud” exception to the
12 above privilege, provides as follows: “There is no privilege under this article if the communication was
13 made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or a fraud.” Evid.
14 Code § 981.
15 To invoke the crime-fraud exception, Trace3 must make a prima facie showing that Third Party
16 Thompson intentionally communicated with Defendant Cordell to enable him to commit a crime or
17 fraud. See BP Alaska Exploration, Inc. v. Superior Court, 199 Cal.App.3d 1240, 1262 (1988). A prima
18 facie case is one that “suffice[s] for proof of a particular fact until contradicted and overcome . . . by
19 other evidence. In other words, [a prima facie case is made by] evidence from which reasonable
20 inferences can be drawn to establish the fact asserted, i.e., the fraud.” BP Alaska, 199 Cal.App.3d at
21 1262, citing People v. Van Gorden, 226 Cal.App.2d 634, 636-37(1964) (emphasis added). The mere
22 allegation of a crime or fraud is insufficient; there must be a showing, based upon admissible evidence,
23 that the crime or fraud has some foundation in fact. Van Gorden, 226 Cal.App.2d at 636-37.
24 As part of the prima facie showing, Trace3 must establish that Third Party Thompson was aware
25 of the illegality involved with any communications. The Law Revision Commission comments on
26 Evidence Code section 981 (unchanged since 1965) state, in pertinent part, as follows:
27 It is important to note that the exception provided by Section 981 is quite
limited. It does not permit disclosure of communications that merely
28 reveal a plan to commit a crime or fraud; it permits disclosure only of
communications made to enable or aid anyone to commit or plan to
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
1 commit a crime or fraud. Thus, unless the communication is for the
purpose of obtaining assistance in the commission of the crime or fraud or
2 in furtherance thereof, it is not made admissible by the exception provided
in this section[.]”
3
Law Revision Commission note to § 981 (emphasis added); see also People v. Dorsey, 46 Cal.App.3d
4
706, 716-17 (1975) (citing to Law Revision Commission note to § 981).
5
By the plain language of section 981, and as clarified by the Law Review Commission
6
commentary, the crime-fraud exception hinges on the concept of knowing participation in, or in
7
furtherance of, illegal or fraudulent activity. As such, if one spouse has no culpable state of mind (i.e.,
8
scienter) and no actual involvement in the criminal or fraudulent intentions or actions of the other, that
9
spouse, who is the holder of the privilege, cannot be prevented from asserting her spousal communication
10
privilege.
11
A trial court may not look at the conversation at issue to make the crime-fraud determination.
12
Costco Wholesale Corp. v. Super. Ct., 47 Cal. 4th 725, 736-37, 739 (in connection with ruling on
13
privilege claim, discovery referee erred in ordering in camera review of document at issue); State Farm
14
Fire Casualty Co. v. Sup. Ct., 54 Cal.App.4th 625, 645 (1997) (the evidence code “does not contemplate
15
disclosure of privileged material in ruling on the crime-fraud exception.”)
16
As set forth below, the crime-fraud exception is not applicable to Third Party Thompson’s
17
communications with Defendant Cordell, thus her assertions of privilege should stand, and a second
18
deposition is unnecessary.
19
3. The Crime-Fraud Exception Does Not Apply to Any Confidential Spousal
20 Communications about Use and Access of Trace3 Systems, Including
Dropbox and Power BI
21
22 Trace3 argues that the crime-fraud exception precludes Third Party Thompson from asserting the
23 spousal privilege in response to any questions having to do with the use or access of Trace3 systems,
24 including, but not limited to, Power BI and Dropbox based upon the following two allegations: 1) Third
25 Party Thompson provided a sales report from Power BI (a data storage tool used by Trace3) at the
26 request of Defendant Cordell as part of a crime or fraud committed by Defendant Cordell, and 2) Third
27 Party Thompson intentionally utilized the Dropbox to conceal Defendant Cordell’s access to Trace3’s
28 confidential information. (Trace3 Mtn, pp 9-10.) Both arguments lack merit.
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
1 a. Third Party Thompson’s Access of Sales Report Does Not
Establish a Prima Facie Case of Her Engaging in a Crime or
2 Fraud
3 Trace3’s argument fails because it has presented no evidencing showing that Defendant Cordell
4 was perpetrating a crime or fraud when he requested the Third Party Thompson provide him with a sales
5 report. More fundamentally, Trace3 has not set forth evidence that Third Party Thompson engaged in a
6 crime providing the requested information to Defendant Cordell. As explained above, in order for
7 communications to fall within the crime-fraud exception, Trace3 must show that the holder of the
8 privilege - Third Party Thompson - engaged in communications for the knowing purposes of enabling or
9 aiding an effort by Defendant Cordell to perpetrate a crime or fraud.
10 Trace3 provides no evidence, because there is none, that Third Party Thompson had any reason to
11 believe that Defendant Cordell’s request represented criminal activity. Indeed, Defendant Cordell
12 initially requested that a different Trace3 employee, Renata Elisa, provide him with the sales report.
13 Upon learning the report could be obtained via Power BI, Defendant Cordell openly stated he would ask
14 Third Party Thompson for assistance (whose job included providing reports to other employees). This is
15 not what criminal activity between co-conspirators looks like. This is what ordinary communications
16 between co-workers look like.
17 Especially telling is that Trace3 did not name Third Party Thompson as an individual defendant in
18 the underlying litigation. As this Court has seen, Trace3 does not hesitate to include individual
19 defendants in its lawsuit against Defendant Sycomp. If Trace3 truly believed Third Party Thompson
20 engaged in criminal wrongdoing, such as intentionally participating in a scheme to steal Trace3’s
21 confidential information, she would be Defendant Thompson, not Third Party Thompson. Her absence
22 as a named defendant in the underlying litigation represents a concession by Trace3 that it does not
23 believe she engaged in any crime or fraud.
24 b. Trace3 Failed to Submit Any Evidence that Third Party Thompson
Used the Dropbox Account for a Criminal or Fraudulent Purpose
25
Trace3’s contention that Third Party Thompson used her Dropbox for an illegal or fraudulent
26
purpose rests solely upon the following argument: “Specifically, forensic examination of Stacy
27
Thompson’s laptop (‘ES0034’) revealed Dropbox-related web activity on April 7, 2023 of a document
28
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
1 entitled: ‘Tim MDF.xlsx.’ (7/7/23 Kopelev Ex. A at ¶ 13.)” This argument is just that – an argument. It
2 in no way represents evidence needed in order to make a prima facie showing.
3 Tellingly, Trace3 intentionally opted not to directly quote from the examiner’s declaration upon
4 which in relies (i.e., the actual evidence). That declaration states only the following with respect to the
5 “Tim MDF.xlsx” file: “Of note, access to a ‘Tim MDF.xlsx’ document occurred on April 7, 2023.”
6 (7/7/23 Kopelev Decl., Ex. A at ¶ 13.)
7 On its face, the examiner’s declaration in no way evidences that Third Party Thompson
8 knowingly engaged in any activity with the intent to participate in a crime or fraud. Nor does it
9 contradict Third Party Thompson testified that she did see or access any file titled “Tim MDF.xlsx.”
10 (Sorensen Decl., Exh. 1, Thompson Depo., 74:5-14.) Trace3’s examiner’s claim –that he found
11 “Dropbox-related web activity of a document” – is nothing more than unintelligible gobbledygook. The
12 so-called evidence fails to identify who purportedly accessed the file, and it certainly does not state that
13 Third Party Thompson accessed the file.
14 Moreover, pursuant to Evidence Code section 1552, Trace3 was required to provide a “printed
15 representation of computer information or a computer program” relied upon by the forensic examiner in
16 reaching his finding of “Dropbox-related web activity of a document” by some unknown person. Evid.
17 Code §1552; see also Evid. Code § 1521 (secondary evidence rule). The failure to provide that makes the
18 declaration’s conclusory statement inadmissible.
19 4. The Crime-Fraud Exception does not Apply to Any Confidential Marital
Communications Regarding Dropbox’s Two Factor Authentication
20 Process
21 Trace3 claims that “the crime-fraud exception also applies to pierce any purported privilege over
22 Mr. Cordell and Third Party Thompson’s communications about two-factor authentication because it
23 appears that one of those parties enabled two-factor authentication to delay Trace3’s ability to access the
24 Dropbox account.” (Trace3 Mtn., p. 10) (emphasis added).
25 This argument fails because it is a mere allegation unsupported by any evidence. Third Party
26 Thompson testified that she never set up a two-factor / multifactor authentication requirement for the
27
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
1 Dropbox account. (Sorensen Decl., Exh. 1, Thompson Depo., 78:22-79:2.) Trace3 has provided no
2 evidence refuting this.
3 Moreover, if Trace3 did not believe Third Party Thompson’s testimony, it was incumbent upon to
4 Trace3 to follow up with Dropbox by, for example, issuing a subpoena to Dropbox to see if any changes
5 were made by Third Party Thompson relating to the two-factor authentication.
6 Alternatively, Trace3 could have researched Dropbox’s security protocols, without the use of a
7 subpoena. The most basic of research (i.e., a Google search) would have revealed information showing
8 that if a Dropbox account is accessed by a new or different laptop, as was the case when Trace3 accessed
9 the Dropbox account for purposes of its forensic review, Dropbox automatically required a two factor
10 authentication code per Dropbox’s policy. For example:
11 Any time you try to sign in from a new computer, phone, or tablet, you’ll
get a unique six-digit code via text message or through a mobile app.
12 You’ll have to enter both your password and this code before you can
access your Dropbox.
13
blog.dropbox.com/topics/product-tips/two-step-verification
14
That is, the two-factor authentication requirement encountered by Trace3, which Trace3 blames
15
on Third Party Thompson, had nothing to do with Third Party Thompson. Trace3 was required to utilize
16
a two-factor authentication – per Drobox’s policy - because it accessed the Dropbox from a new
17
computer. Even if Third Party Thompson was aware of this policy – which she was not – there was
18
nothing she could have done to prevent it. Unfounded conspiracy theories do not extinguish the spousal
19
communications privilege.
20
Finally, even if Trace3 presented evidence that Third Party Thompson changed the two-factor
21
authentication at any time, Trace3 would still need to put forth evidence that she knowingly did so in a
22
deliberate effort to participate in a crime or fraud. Trace3 cannot make that showing.
23
C. Trace3’s Corporate Policies Do Not Wipe Away the Spousal Communication
24 Privilege
25 Trace3 argues that Third Party Thompson “waived the privilege because neither Mr. Cordell nor
26 Ms. Thompson had any reasonable expectation of privacy as to their use of Trace3 devices, storage
27 programs, and software, including Dropbox, because Trace3 paid for it and it was subject to Trace3’s
28
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
1 AUP and Written Information Security Policy (“WISP”)[.]” (Trace3 Mtn., 12:28-13:3. (emphasis
2 added).)
3 Even if Third Party Thompson did not have an expectation of privacy while communicating
4 “using” Trace3 devices and software, that in no way diminishes her expectation of privacy for
5 confidential communications with her domestic partner that did not involve the use of Trace3 devices and
6 software. To be clear, Trace3 asserts that its corporate policies erase any expectation of privacy that an
7 employee has with their spouse while engaged in an in-person conversation in their own home, no matter
8 how intimate the setting. Corporations do not yield such power through their policies.
9 D. Neither Thompson nor Cordell Waived the Marital Communications Privilege
by Providing Deposition Testimony
10
11 Trace3 argues that Thompson’s and Cordell’s participation in depositions resulted in the waiver
12 of the marital communication privilege. It did not.
13 A privilege may be lost by an express or implied waiver. The “right of any person to claim [the
14 spousal communication privilege] is waived with respect to a communication protected by the privilege
15 if any holder of the privilege, without coercion, has disclosed a significant part of the communication or
16 has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or
17 other conduct of the holder of the privilege indicating consent to the disclosure[.]” Evid. Code § 912(a);
18 see also Roberts v. Superior Court, 9 Cal.3d 330, 343 (1973) (the waiver of a privilege must be a
19 voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely
20 consequences).
21 Trace3 first asserts that “[a]t deposition, Mr. Cordell testified—without objection—that he had
22 never “request[ed]” that Ms. Thompson access a proprietary and specific report related to . . . sales
23 history in April 2023. (Phillis Decl., Ex. D at 56:15–17.)” This claim is false. Defendant Cordell
24 objected to all questions to the extent they sought privileged marital communications. At the same time,
25 Defendant Cordell recognized that the marital communication privilege only applies to confidential
26 communications, and would not apply, for example, to discussions at work meetings where others were
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
1 present. Defendant Cordell’s responses to all questions, including questions related to any request for
2 any sales history, only pertained to non-privileged requests. There was no waiver.
3 In addition, Defendant Cordell did not have the ability to waive Third Party Thompson’s right to
4 invoke the spousal communication privilege. As explained above, the “privilege against disclosure of
5 privileged communications is vested in each spouse and consequently if a spouse is called as a witness he
6 or she may not testify as to confidential communications without his or her consent and the consent of
7 the other spouse.” Dorsey, 46 Cal.App.3d at 717. Third Party Thompson never consented to any
8 disclosure by Defendant Cordell of confidential spousal communications.
9 Next, Trace3 argues that a waiver occurred because “Sycomp also examined Ms. Thompson
10 about (1) her communications with Mr. Cordell and their shared use of the Trace3 Dropbox and (2)
11 whether Mr. Cordell ever used the Dropbox to transfer Trace3 trade secrets to himself personally or to
12 Sycomp. Neither of these results in waiver.
13 Like Defendant Cordell, Third Party Thompson answered all questions relating to the shared use
14 of the Dropbox, but only to the extent a question did not call for the disclosure of privileged and
15 confidential marital communications. Throughout the deposition, counsel for Third Party Thompson
16 consistently objected to all questions to the extent they sought to, or could, elicit privileged marital
17 communications, and counsel for Trace3 confirmed the questions were not seek confidential spousal
18 communications. For example:
19 Q: Did you do – and I’m not trying to ask for communications with you and Mr. Cordell
20 that may have been confidential. But did you do anything after Danielle told you that Mr. Cordell
21 has saved customer lists and certain Trace3 files to the Dropbox?
22 MR. SORENSEN: Objection. Vague and ambiguous as to “do anything.”
23 MS. AGRE: Objection. Asked and answered.
24 BY MS. PHILLIS:
25 Q. You can answer the question.
26 A. I did what I was told. I did not access the Dropbox.
27 (Sorensen Decl., Exh. 1, Thompson Depo., 100:21-101:8; see also id at 77:4-78:2; 79:3-17; 80:6-81:3;
28 85:4-11; 99:3-101:8.)
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
1 Finally, any testimony by Third Party Thompson or Defendant Cordell regarding use of the
2 Dropbox account does not result in waiver of privileged marital communications. The marital
3 communications privilege protects confidential communications – not acts. Dorsey, 46 Cal.App.3d at
4 717. Because testimony regarding acts is not a disclosure of privileged communications, it does not
5 result in a waiver of the marital communications privilege.
6
7 III. THIRD PARTY THOMPSON SHOULD BE AWARDED
HER REASONABLE ATTORNEYS’ FEES
8
9 “The court shall impose a monetary sanction under Chapter 7 (commencing with Section
10 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to
11 compel an answer or production, unless it finds that the one subject to the sanction acted with substantial
12 justification or that other circumstances make the imposition of the sanction unjust.” CCP § 2025.480.
13 “The phrase ‘substantial justification’ has been understood to mean that the position is “well
14 grounded in both law and fact.” Doe v. United States Swimming, Inc., 200 CA4th 1424, 1434 (2011).
15 Conversely, if the motion to compel is denied, to avoid sanctions the moving party must show
16 “substantial justification” for making the motion; e.g., reasonable grounds to believe that Third Party
17 Thompson’s objections based upon the spousal communication privilege were invalid. See Diepenbrock
18 v. Brown, 208 Cal.App.4th 743, 748 (2012).
19 As detailed above, Trace3 did not have substantial justification for pursuing its motion seeking to
20 compel Third Party Thompson’s attendance at a second deposition at which she would not be permitted
21 to assert the marital communications privilege. There is no basis in fact for the application of the crime-
22 fraud exception, on their face Trace3’s policies regarding its devices do not govern conversations not
23 using those devices, and there has been no waiver of the privilege.
24 Therefore, Trace3 should be ordered to pay Third Party Thompson’s attorneys’ fees in the amount
25 of $17,122.50 in addition to fees associated with the drafting of the sur-reply. (See Sorensen Decl.at ¶ 6).
26
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
CONCLUSION
Third Party Thompson respectfully requests that this Court deny Trace3’s motion for an order
compelling her to testify at a second deposition and requests that attorneys’ fees be awarded to
compensate her for the time and expense of opposing same.
Dated: September 13, 2023 SORENSEN LAW GROUP, P.C.
By:
Rodney B. Sorensen
Joseph C. Schultz
Attorneys for Third Party
STACY THOMPSON
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THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND
DEPOSITION OF THIRD PARTY THOMPSON
PROOF OF SERVICE
Trace3, LLC v. Sycomp A Technology Co., Inc., et al.
Santa Clara County Superior Court – Complex
Case No. 23CV415833
At the time of service, I was over 18 years of age and not a party to this action. I am a resident
of the County of Alameda, State of California. My business address is 303 Twin Dolphin Drive, Suite
600, Redwood City, California 94065.
On September 13, 2023, I served true copies of the following document(s) described as
THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S
MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON
DECLARATION OF RODNEY B. SORENSEN IN SUPPORT OF THIRD PARTY
STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO
COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON
10 THIRD PARTY STACY THOMPSON’S OBJECTIONS TO TRACE3, LLC’S
EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO COMPEL SECOND
11 DEPOSITION OF THIRD PARTY THOMPSON
12
on the interested parties in this action as follows:
13
14
Nicole Phillis Attorneys for Plaintiff
DAVIS WRIGHT TREMAINE LLP TRACE3, LLC
15 865 S. Figueroa Street, Suite 2400
Los Angeles, CA 90017
16 Email: nicolephillis@dwt.com
17
Tel: (213) 633-6800
Fax: (213) 633-6899
18
Jeremy Ben Merkelson
19 David MacKenzie
20
DAVIS WRIGHT TREMAINE LLP
1301 K Street NW, Suite 500 East
21 Washington, D.C. 20005
Email: jeremymerkelson@dwt.com
22 vidmackenzie@dwt.com
23
Tel: (202) 973-4260
Fax: (202) 973-4472
24
Marina C. Gruber
25 DAVIS WRIGHT TREMAINE LLP
26
50 California Street, 23 Floor
San Francisco, CA 94111
27 Email: marinagruber@dwt.com
Tel: (415) 276-6549
28 Fax: (415) 276-6599
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PROOF OF SERVICE
Rajiv Dharnidharka Attorneys for Defendant
Jeanette Barzelay SYCOMP A TECHNOLOGY COMPANY,
Micah A. Chavin INC.
Erin Heiferman
DLA PIPER LLP (US)
2000 University Avenue
East Palo Alto CA 94303
Email: rajiv.dharnidharka@us.dlapiper.com
eanette.barzelay@us.dlapiper.com
icah.chavin@us.dlapiper.com
rin.heiferman@us.dlapiper.com
Tel: (650) 833-2000
Fax: (650) 833-2001
Lyn R. Agre Attorneys for Individual Defendants
10 GLENN AGRE BERGMAN & FUENTES TIMOTHY CORDELL, LILIAN ELIAS,
44 Montgomery Street Suite 2410 GEOFFREY PETERSON DEVIN
11
San Francisco, CA 94104 TOMCIK
12 Email: lagre@glennagre.com
Tel: (415) 599-0880
13
Edward E. Shapiro
14
GLENN AGRE BERGMAN & FUENTES
15 1185 Avenue of the Americas, 22nd Floor
New York, NY 10036
16 Email: eshapiro@glennagre.com
Tel: (212) 970-1609
17
18 Y ELECTRONIC SERVICE VENDOR: A true and correct copy of the documents listed
19 above were electronically served on parties and/or counsel of record listed in the Service List
by transmission through approved electronic service vendor, First Legal. Notice to parties
20 and/or counsel by First Legal will constitute service of the above-listed documents.
21 Y U.S. MAIL: I caused such envelope(s) to be mailed with postage thereon fully prepaid.
22 I am familiar with the firm's practice of collection and processing correspondence for
mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
23 day with postage thereon fully prepaid in the ordinary course of business.
24 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused the document(s) to be
sent from e-mail address mkoyle@SorensenLawGroup.com to the person(s) at the e-mail
25
address(es) listed in the Service List. I did not receive, within a reasonable time after the
26 transmission, any electronic message or other indication that the transmission was
unsuccessful.
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PROOF OF SERVICE
BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx
and addressed to the person(s) at the address(es) listed in the Service List. I placed the
envelope or package for collection and overnight delivery at an office or a regularly
utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized
by FedEx to receive documents.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on September 13, 2023, at Oakland, California.
Marcie Koyle
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PROOF OF SERVICE
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Rodney B. Sorensen (SBN 196926) rsorensen@sorensenlawgroup.com Joseph C. Schultz (SBN 199786) jschultz@sorensenlawgroup.com SORENSEN LAW GROUP, P.C. 303 Twin Dolphin Drive, Suite 600 Redwood City, CA 94065 Telephone: (650) 260-7500 Facsimile: (800) 863-6799 Attorneys for Third Party STACY THOMPSON IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA - COMPLEX TRACE3, LLC, a California limited liability Case No. 23CV415833 company; Assigned for All Purposes to: Plaintiff, Hon. Sunil R. Kulkarni v. THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION SYCOMP A TECHNOLOGY COMPANY, TO COMPEL SECOND DEPOSITION OF INC., a California corporation; TIMOTHY THIRD PARTY THOMPSON CORDELL, an individual; LILIAN ELIAS, an [Filed concurrently with Declaration of Rodney B. individual; GEOFFREY PETERSON, an Sorensen in Support of Opposition; Third Party individual; DEVIN TOMCIK, an individual; Stacy Thompson’s Objections to Trace3, LLC’s and DOES 1-10, inclusive, Evidence Submitted in Support of Motion] Defendants. Complaint Filed: May 12, 2023 -1- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON 1 Third Party Deponent Stacy Thompson respectfully submits the following Opposition to Trace3, 2 LLC’s motion to compel a second deposition. 3 4 I. INTRODUCTION 5 California Code of Civil Procedure section 2025.610, subdivision (a), provides that “[o]nce any 6 party has taken the deposition of any natural person . . . neither the party who gave, nor any other party 7 who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent 8 deposition of that deponent.” However, for good cause shown, the court may grant leave to allow a 9 subsequent deposition. Code Civ. Proc. § 2025.610(b). For the reasons identified below the Court should 10 not grant leave to Trace3 to allow it to take a second deposition of Third Party Thompson because it has 11 not demonstrated good cause. 12 13 II. ARGUMENT 14 A. Trace3’s Motion is Procedurally Defective 15 Code of Civil Procures s 2025.480 requires a party moving to compel further testimony from a 16 deponent to “lodge with the court a certified copy” of the deposition transcript containing the specific 17 questions for which an “answer” is sought. Code Civ. Proc. § 2025.480(h) & (i). 18 Here, Trace3 has failed to identify a single specific question it asked during Third Party 19 Thompson’s first deposition for which it seeks the Court to compel a response. This defect is fatal as 20 Third Party Thompson’s right to assert the marital communications privilege cannot be stripped away in 21 a vacuum. For this reason alone, Trace3’s motion should be denied. 22 B. The “Crime-Fraud” Exception to California’s Confidential Spousal Communications Privilege is Not Applicable 23 1. Summary of Spousal Communication Privilege 24 The confidentiality of spousal communications in California is established by California Evidence 25 Code section 980, which provides as follows: 26 Subject to Section 912 and except as otherwise provided in this article, a 27 spouse (or his or her guardian or conservator when he or she has a guardian or conservator), whether or not a party, has a privilege during the marital or 28 domestic partnership relationship and afterwards to refuse to disclose, and -2- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON 1 to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or 2 her and the other spouse while they were spouses. 3 Cal. Evid. Code § 980. 4 Unlike other privileges, such as the attorney-client and physician-patient privileges, both parties 5 to a confidential communication protected by the spousal privilege are holders of the privilege. People v. 6 Dorsey, 46 Cal.App.3d 706, 717 (1975) (the “privilege against disclosure of privileged communications 7 is vested in each spouse and consequently if a spouse is called as a witness he or she may not testify as to 8 confidential communications without his or her consent and the consent of the other spouse”) (emphasis 9 added). 10 2. Summary of the Crime-Fraud Exception to the Spousal Privilege 11 California Evidence Code section 981, commonly known as the “crime-fraud” exception to the 12 above privilege, provides as follows: “There is no privilege under this article if the communication was 13 made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or a fraud.” Evid. 14 Code § 981. 15 To invoke the crime-fraud exception, Trace3 must make a prima facie showing that Third Party 16 Thompson intentionally communicated with Defendant Cordell to enable him to commit a crime or 17 fraud. See BP Alaska Exploration, Inc. v. Superior Court, 199 Cal.App.3d 1240, 1262 (1988). A prima 18 facie case is one that “suffice[s] for proof of a particular fact until contradicted and overcome . . . by 19 other evidence. In other words, [a prima facie case is made by] evidence from which reasonable 20 inferences can be drawn to establish the fact asserted, i.e., the fraud.” BP Alaska, 199 Cal.App.3d at 21 1262, citing People v. Van Gorden, 226 Cal.App.2d 634, 636-37(1964) (emphasis added). The mere 22 allegation of a crime or fraud is insufficient; there must be a showing, based upon admissible evidence, 23 that the crime or fraud has some foundation in fact. Van Gorden, 226 Cal.App.2d at 636-37. 24 As part of the prima facie showing, Trace3 must establish that Third Party Thompson was aware 25 of the illegality involved with any communications. The Law Revision Commission comments on 26 Evidence Code section 981 (unchanged since 1965) state, in pertinent part, as follows: 27 It is important to note that the exception provided by Section 981 is quite limited. It does not permit disclosure of communications that merely 28 reveal a plan to commit a crime or fraud; it permits disclosure only of communications made to enable or aid anyone to commit or plan to -3- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON 1 commit a crime or fraud. Thus, unless the communication is for the purpose of obtaining assistance in the commission of the crime or fraud or 2 in furtherance thereof, it is not made admissible by the exception provided in this section[.]” 3 Law Revision Commission note to § 981 (emphasis added); see also People v. Dorsey, 46 Cal.App.3d 4 706, 716-17 (1975) (citing to Law Revision Commission note to § 981). 5 By the plain language of section 981, and as clarified by the Law Review Commission 6 commentary, the crime-fraud exception hinges on the concept of knowing participation in, or in 7 furtherance of, illegal or fraudulent activity. As such, if one spouse has no culpable state of mind (i.e., 8 scienter) and no actual involvement in the criminal or fraudulent intentions or actions of the other, that 9 spouse, who is the holder of the privilege, cannot be prevented from asserting her spousal communication 10 privilege. 11 A trial court may not look at the conversation at issue to make the crime-fraud determination. 12 Costco Wholesale Corp. v. Super. Ct., 47 Cal. 4th 725, 736-37, 739 (in connection with ruling on 13 privilege claim, discovery referee erred in ordering in camera review of document at issue); State Farm 14 Fire Casualty Co. v. Sup. Ct., 54 Cal.App.4th 625, 645 (1997) (the evidence code “does not contemplate 15 disclosure of privileged material in ruling on the crime-fraud exception.”) 16 As set forth below, the crime-fraud exception is not applicable to Third Party Thompson’s 17 communications with Defendant Cordell, thus her assertions of privilege should stand, and a second 18 deposition is unnecessary. 19 3. The Crime-Fraud Exception Does Not Apply to Any Confidential Spousal 20 Communications about Use and Access of Trace3 Systems, Including Dropbox and Power BI 21 22 Trace3 argues that the crime-fraud exception precludes Third Party Thompson from asserting the 23 spousal privilege in response to any questions having to do with the use or access of Trace3 systems, 24 including, but not limited to, Power BI and Dropbox based upon the following two allegations: 1) Third 25 Party Thompson provided a sales report from Power BI (a data storage tool used by Trace3) at the 26 request of Defendant Cordell as part of a crime or fraud committed by Defendant Cordell, and 2) Third 27 Party Thompson intentionally utilized the Dropbox to conceal Defendant Cordell’s access to Trace3’s 28 confidential information. (Trace3 Mtn, pp 9-10.) Both arguments lack merit. -4- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON 1 a. Third Party Thompson’s Access of Sales Report Does Not Establish a Prima Facie Case of Her Engaging in a Crime or 2 Fraud 3 Trace3’s argument fails because it has presented no evidencing showing that Defendant Cordell 4 was perpetrating a crime or fraud when he requested the Third Party Thompson provide him with a sales 5 report. More fundamentally, Trace3 has not set forth evidence that Third Party Thompson engaged in a 6 crime providing the requested information to Defendant Cordell. As explained above, in order for 7 communications to fall within the crime-fraud exception, Trace3 must show that the holder of the 8 privilege - Third Party Thompson - engaged in communications for the knowing purposes of enabling or 9 aiding an effort by Defendant Cordell to perpetrate a crime or fraud. 10 Trace3 provides no evidence, because there is none, that Third Party Thompson had any reason to 11 believe that Defendant Cordell’s request represented criminal activity. Indeed, Defendant Cordell 12 initially requested that a different Trace3 employee, Renata Elisa, provide him with the sales report. 13 Upon learning the report could be obtained via Power BI, Defendant Cordell openly stated he would ask 14 Third Party Thompson for assistance (whose job included providing reports to other employees). This is 15 not what criminal activity between co-conspirators looks like. This is what ordinary communications 16 between co-workers look like. 17 Especially telling is that Trace3 did not name Third Party Thompson as an individual defendant in 18 the underlying litigation. As this Court has seen, Trace3 does not hesitate to include individual 19 defendants in its lawsuit against Defendant Sycomp. If Trace3 truly believed Third Party Thompson 20 engaged in criminal wrongdoing, such as intentionally participating in a scheme to steal Trace3’s 21 confidential information, she would be Defendant Thompson, not Third Party Thompson. Her absence 22 as a named defendant in the underlying litigation represents a concession by Trace3 that it does not 23 believe she engaged in any crime or fraud. 24 b. Trace3 Failed to Submit Any Evidence that Third Party Thompson Used the Dropbox Account for a Criminal or Fraudulent Purpose 25 Trace3’s contention that Third Party Thompson used her Dropbox for an illegal or fraudulent 26 purpose rests solely upon the following argument: “Specifically, forensic examination of Stacy 27 Thompson’s laptop (‘ES0034’) revealed Dropbox-related web activity on April 7, 2023 of a document 28 -5- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON 1 entitled: ‘Tim MDF.xlsx.’ (7/7/23 Kopelev Ex. A at ¶ 13.)” This argument is just that – an argument. It 2 in no way represents evidence needed in order to make a prima facie showing. 3 Tellingly, Trace3 intentionally opted not to directly quote from the examiner’s declaration upon 4 which in relies (i.e., the actual evidence). That declaration states only the following with respect to the 5 “Tim MDF.xlsx” file: “Of note, access to a ‘Tim MDF.xlsx’ document occurred on April 7, 2023.” 6 (7/7/23 Kopelev Decl., Ex. A at ¶ 13.) 7 On its face, the examiner’s declaration in no way evidences that Third Party Thompson 8 knowingly engaged in any activity with the intent to participate in a crime or fraud. Nor does it 9 contradict Third Party Thompson testified that she did see or access any file titled “Tim MDF.xlsx.” 10 (Sorensen Decl., Exh. 1, Thompson Depo., 74:5-14.) Trace3’s examiner’s claim –that he found 11 “Dropbox-related web activity of a document” – is nothing more than unintelligible gobbledygook. The 12 so-called evidence fails to identify who purportedly accessed the file, and it certainly does not state that 13 Third Party Thompson accessed the file. 14 Moreover, pursuant to Evidence Code section 1552, Trace3 was required to provide a “printed 15 representation of computer information or a computer program” relied upon by the forensic examiner in 16 reaching his finding of “Dropbox-related web activity of a document” by some unknown person. Evid. 17 Code §1552; see also Evid. Code § 1521 (secondary evidence rule). The failure to provide that makes the 18 declaration’s conclusory statement inadmissible. 19 4. The Crime-Fraud Exception does not Apply to Any Confidential Marital Communications Regarding Dropbox’s Two Factor Authentication 20 Process 21 Trace3 claims that “the crime-fraud exception also applies to pierce any purported privilege over 22 Mr. Cordell and Third Party Thompson’s communications about two-factor authentication because it 23 appears that one of those parties enabled two-factor authentication to delay Trace3’s ability to access the 24 Dropbox account.” (Trace3 Mtn., p. 10) (emphasis added). 25 This argument fails because it is a mere allegation unsupported by any evidence. Third Party 26 Thompson testified that she never set up a two-factor / multifactor authentication requirement for the 27 28 -6- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON 1 Dropbox account. (Sorensen Decl., Exh. 1, Thompson Depo., 78:22-79:2.) Trace3 has provided no 2 evidence refuting this. 3 Moreover, if Trace3 did not believe Third Party Thompson’s testimony, it was incumbent upon to 4 Trace3 to follow up with Dropbox by, for example, issuing a subpoena to Dropbox to see if any changes 5 were made by Third Party Thompson relating to the two-factor authentication. 6 Alternatively, Trace3 could have researched Dropbox’s security protocols, without the use of a 7 subpoena. The most basic of research (i.e., a Google search) would have revealed information showing 8 that if a Dropbox account is accessed by a new or different laptop, as was the case when Trace3 accessed 9 the Dropbox account for purposes of its forensic review, Dropbox automatically required a two factor 10 authentication code per Dropbox’s policy. For example: 11 Any time you try to sign in from a new computer, phone, or tablet, you’ll get a unique six-digit code via text message or through a mobile app. 12 You’ll have to enter both your password and this code before you can access your Dropbox. 13 blog.dropbox.com/topics/product-tips/two-step-verification 14 That is, the two-factor authentication requirement encountered by Trace3, which Trace3 blames 15 on Third Party Thompson, had nothing to do with Third Party Thompson. Trace3 was required to utilize 16 a two-factor authentication – per Drobox’s policy - because it accessed the Dropbox from a new 17 computer. Even if Third Party Thompson was aware of this policy – which she was not – there was 18 nothing she could have done to prevent it. Unfounded conspiracy theories do not extinguish the spousal 19 communications privilege. 20 Finally, even if Trace3 presented evidence that Third Party Thompson changed the two-factor 21 authentication at any time, Trace3 would still need to put forth evidence that she knowingly did so in a 22 deliberate effort to participate in a crime or fraud. Trace3 cannot make that showing. 23 C. Trace3’s Corporate Policies Do Not Wipe Away the Spousal Communication 24 Privilege 25 Trace3 argues that Third Party Thompson “waived the privilege because neither Mr. Cordell nor 26 Ms. Thompson had any reasonable expectation of privacy as to their use of Trace3 devices, storage 27 programs, and software, including Dropbox, because Trace3 paid for it and it was subject to Trace3’s 28 -7- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON 1 AUP and Written Information Security Policy (“WISP”)[.]” (Trace3 Mtn., 12:28-13:3. (emphasis 2 added).) 3 Even if Third Party Thompson did not have an expectation of privacy while communicating 4 “using” Trace3 devices and software, that in no way diminishes her expectation of privacy for 5 confidential communications with her domestic partner that did not involve the use of Trace3 devices and 6 software. To be clear, Trace3 asserts that its corporate policies erase any expectation of privacy that an 7 employee has with their spouse while engaged in an in-person conversation in their own home, no matter 8 how intimate the setting. Corporations do not yield such power through their policies. 9 D. Neither Thompson nor Cordell Waived the Marital Communications Privilege by Providing Deposition Testimony 10 11 Trace3 argues that Thompson’s and Cordell’s participation in depositions resulted in the waiver 12 of the marital communication privilege. It did not. 13 A privilege may be lost by an express or implied waiver. The “right of any person to claim [the 14 spousal communication privilege] is waived with respect to a communication protected by the privilege 15 if any holder of the privilege, without coercion, has disclosed a significant part of the communication or 16 has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or 17 other conduct of the holder of the privilege indicating consent to the disclosure[.]” Evid. Code § 912(a); 18 see also Roberts v. Superior Court, 9 Cal.3d 330, 343 (1973) (the waiver of a privilege must be a 19 voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely 20 consequences). 21 Trace3 first asserts that “[a]t deposition, Mr. Cordell testified—without objection—that he had 22 never “request[ed]” that Ms. Thompson access a proprietary and specific report related to . . . sales 23 history in April 2023. (Phillis Decl., Ex. D at 56:15–17.)” This claim is false. Defendant Cordell 24 objected to all questions to the extent they sought privileged marital communications. At the same time, 25 Defendant Cordell recognized that the marital communication privilege only applies to confidential 26 communications, and would not apply, for example, to discussions at work meetings where others were 27 28 -8- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON 1 present. Defendant Cordell’s responses to all questions, including questions related to any request for 2 any sales history, only pertained to non-privileged requests. There was no waiver. 3 In addition, Defendant Cordell did not have the ability to waive Third Party Thompson’s right to 4 invoke the spousal communication privilege. As explained above, the “privilege against disclosure of 5 privileged communications is vested in each spouse and consequently if a spouse is called as a witness he 6 or she may not testify as to confidential communications without his or her consent and the consent of 7 the other spouse.” Dorsey, 46 Cal.App.3d at 717. Third Party Thompson never consented to any 8 disclosure by Defendant Cordell of confidential spousal communications. 9 Next, Trace3 argues that a waiver occurred because “Sycomp also examined Ms. Thompson 10 about (1) her communications with Mr. Cordell and their shared use of the Trace3 Dropbox and (2) 11 whether Mr. Cordell ever used the Dropbox to transfer Trace3 trade secrets to himself personally or to 12 Sycomp. Neither of these results in waiver. 13 Like Defendant Cordell, Third Party Thompson answered all questions relating to the shared use 14 of the Dropbox, but only to the extent a question did not call for the disclosure of privileged and 15 confidential marital communications. Throughout the deposition, counsel for Third Party Thompson 16 consistently objected to all questions to the extent they sought to, or could, elicit privileged marital 17 communications, and counsel for Trace3 confirmed the questions were not seek confidential spousal 18 communications. For example: 19 Q: Did you do – and I’m not trying to ask for communications with you and Mr. Cordell 20 that may have been confidential. But did you do anything after Danielle told you that Mr. Cordell 21 has saved customer lists and certain Trace3 files to the Dropbox? 22 MR. SORENSEN: Objection. Vague and ambiguous as to “do anything.” 23 MS. AGRE: Objection. Asked and answered. 24 BY MS. PHILLIS: 25 Q. You can answer the question. 26 A. I did what I was told. I did not access the Dropbox. 27 (Sorensen Decl., Exh. 1, Thompson Depo., 100:21-101:8; see also id at 77:4-78:2; 79:3-17; 80:6-81:3; 28 85:4-11; 99:3-101:8.) -9- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON 1 Finally, any testimony by Third Party Thompson or Defendant Cordell regarding use of the 2 Dropbox account does not result in waiver of privileged marital communications. The marital 3 communications privilege protects confidential communications – not acts. Dorsey, 46 Cal.App.3d at 4 717. Because testimony regarding acts is not a disclosure of privileged communications, it does not 5 result in a waiver of the marital communications privilege. 6 7 III. THIRD PARTY THOMPSON SHOULD BE AWARDED HER REASONABLE ATTORNEYS’ FEES 8 9 “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 10 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to 11 compel an answer or production, unless it finds that the one subject to the sanction acted with substantial 12 justification or that other circumstances make the imposition of the sanction unjust.” CCP § 2025.480. 13 “The phrase ‘substantial justification’ has been understood to mean that the position is “well 14 grounded in both law and fact.” Doe v. United States Swimming, Inc., 200 CA4th 1424, 1434 (2011). 15 Conversely, if the motion to compel is denied, to avoid sanctions the moving party must show 16 “substantial justification” for making the motion; e.g., reasonable grounds to believe that Third Party 17 Thompson’s objections based upon the spousal communication privilege were invalid. See Diepenbrock 18 v. Brown, 208 Cal.App.4th 743, 748 (2012). 19 As detailed above, Trace3 did not have substantial justification for pursuing its motion seeking to 20 compel Third Party Thompson’s attendance at a second deposition at which she would not be permitted 21 to assert the marital communications privilege. There is no basis in fact for the application of the crime- 22 fraud exception, on their face Trace3’s policies regarding its devices do not govern conversations not 23 using those devices, and there has been no waiver of the privilege. 24 Therefore, Trace3 should be ordered to pay Third Party Thompson’s attorneys’ fees in the amount 25 of $17,122.50 in addition to fees associated with the drafting of the sur-reply. (See Sorensen Decl.at ¶ 6). 26 27 28 -10- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON CONCLUSION Third Party Thompson respectfully requests that this Court deny Trace3’s motion for an order compelling her to testify at a second deposition and requests that attorneys’ fees be awarded to compensate her for the time and expense of opposing same. Dated: September 13, 2023 SORENSEN LAW GROUP, P.C. By: Rodney B. Sorensen Joseph C. Schultz Attorneys for Third Party STACY THOMPSON -11- THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON PROOF OF SERVICE Trace3, LLC v. Sycomp A Technology Co., Inc., et al. Santa Clara County Superior Court – Complex Case No. 23CV415833 At the time of service, I was over 18 years of age and not a party to this action. I am a resident of the County of Alameda, State of California. My business address is 303 Twin Dolphin Drive, Suite 600, Redwood City, California 94065. On September 13, 2023, I served true copies of the following document(s) described as THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON DECLARATION OF RODNEY B. SORENSEN IN SUPPORT OF THIRD PARTY STACY THOMPSON’S OPPOSITION TO TRACE3, LLC’S MOTION TO COMPEL SECOND DEPOSITION OF THIRD PARTY THOMPSON 10 THIRD PARTY STACY THOMPSON’S OBJECTIONS TO TRACE3, LLC’S EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO COMPEL SECOND 11 DEPOSITION OF THIRD PARTY THOMPSON 12 on the interested parties in this action as follows: 13 14 Nicole Phillis Attorneys for Plaintiff DAVIS WRIGHT TREMAINE LLP TRACE3, LLC 15 865 S. Figueroa Street, Suite 2400 Los Angeles, CA 90017 16 Email: nicolephillis@dwt.com 17 Tel: (213) 633-6800 Fax: (213) 633-6899 18 Jeremy Ben Merkelson 19 David MacKenzie 20 DAVIS WRIGHT TREMAINE LLP 1301 K Street NW, Suite 500 East 21 Washington, D.C. 20005 Email: jeremymerkelson@dwt.com 22 vidmackenzie@dwt.com 23 Tel: (202) 973-4260 Fax: (202) 973-4472 24 Marina C. Gruber 25 DAVIS WRIGHT TREMAINE LLP 26 50 California Street, 23 Floor San Francisco, CA 94111 27 Email: marinagruber@dwt.com Tel: (415) 276-6549 28 Fax: (415) 276-6599 1 PROOF OF SERVICE Rajiv Dharnidharka Attorneys for Defendant Jeanette Barzelay SYCOMP A TECHNOLOGY COMPANY, Micah A. Chavin INC. Erin Heiferman DLA PIPER LLP (US) 2000 University Avenue East Palo Alto CA 94303 Email: rajiv.dharnidharka@us.dlapiper.com eanette.barzelay@us.dlapiper.com icah.chavin@us.dlapiper.com rin.heiferman@us.dlapiper.com Tel: (650) 833-2000 Fax: (650) 833-2001 Lyn R. Agre Attorneys for Individual Defendants 10 GLENN AGRE BERGMAN & FUENTES TIMOTHY CORDELL, LILIAN ELIAS, 44 Montgomery Street Suite 2410 GEOFFREY PETERSON DEVIN 11 San Francisco, CA 94104 TOMCIK 12 Email: lagre@glennagre.com Tel: (415) 599-0880 13 Edward E. Shapiro 14 GLENN AGRE BERGMAN & FUENTES 15 1185 Avenue of the Americas, 22nd Floor New York, NY 10036 16 Email: eshapiro@glennagre.com Tel: (212) 970-1609 17 18 Y ELECTRONIC SERVICE VENDOR: A true and correct copy of the documents listed 19 above were electronically served on parties and/or counsel of record listed in the Service List by transmission through approved electronic service vendor, First Legal. Notice to parties 20 and/or counsel by First Legal will constitute service of the above-listed documents. 21 Y U.S. MAIL: I caused such envelope(s) to be mailed with postage thereon fully prepaid. 22 I am familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 23 day with postage thereon fully prepaid in the ordinary course of business. 24 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused the document(s) to be sent from e-mail address mkoyle@SorensenLawGroup.com to the person(s) at the e-mail 25 address(es) listed in the Service List. I did not receive, within a reasonable time after the 26 transmission, any electronic message or other indication that the transmission was unsuccessful. 27 28 2 PROOF OF SERVICE BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx and addressed to the person(s) at the address(es) listed in the Service List. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 13, 2023, at Oakland, California. Marcie Koyle 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PROOF OF SERVICE