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RAJIV DHARNIDHARKA (Cal. Bar No. 234756)
tajiv.dhamidharka@dlapiy
JEANETTE BARZELAY (CalBar No 261780)
jeanette. barzelay @us. dlapi
MICAHA. CHAVIN (Cal. Bar NO. 313634)
micah.chavin@dlapiper.com
DLA PIPER LLP
3203 Hanover Street, Suite 100
Palo Alto, CA_ 94304-1123
Te: 650.833.2000
Fax: 650.833.2001
Attomeys for Defendant
SycompA Technology Company, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
TRACE3, LLC a Califomia limited liability CASENO. 23CV415833
company,
DECLARATION OF RAJIV
DHARNIDHARKA IN SUPPORT OF
Plaintiff, DEFENDANT SYCOMP A
TECHNOLOGY COMPANY INC.’S
OPPOSITIONTO TRACE3 S MOTION
TO COMPEL COMPLIANCE WITH
SY COMP A TECHNOLOGY COMPANY COURT ORDER AND FURTHER
INC., a Califomia corporation; TIMOTHY RESPONSES TO SPECIAL
CORDELL, an individual; GEOFF PETERSON, INTERROGATORIES NOS. 1 2, 4, 21, 22,
an individual; DEVIN TOMCIK, an individual 24, 25, 26, 27; REQUESTS
JOHN BARNES, an individual; and DOES 1- ADMISSIONS NOS.
inclusive; REQUESTS FOR PRODUCTION 1-56;
AND FOR SANCTIONS
Defendants. Date: December15, 2023
Time: 9:00am.
Dept: 1
Action Filed: May 12, 2023
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I, Rajiv Dhamidharka, declare as follows:
1 I am Partner at the law firm of DLA Piper LLP (US) and counsel of record for
Defendant Sycomp A Technology Company, Inc. (“Sycomp”) in the above-captioned action. I am
a member in good standing of the State Bar of Califomia
and have been admitted to practice law
before this Court. I have personal knowledge of the facts set forth in this Declaration, and if called.
as a witness, could and would testify competently to such facts under oath.
2. On June 2, 2023, Trace3 served its first set of discovery requests on Sycomp,
including 52 RFPs, 19 SIs (one with 25 subparts), 43 RFAs, and multiple form interrogatories
including 17.1. Sycomp served timely responses on June 9, 2023, which consisted of only
10 objections because Trace3 had not satisfied the gating requirements of Code of Civil Procedure
11 section 2019.210 (“Section 2019.210”).
12 3. On June 13, Trace3 served a second set of 4 RFPs and 8 Sls specifically targeting
13 privileged, attomey work product information regarding Sycomp’s investigation and forensic
14 analysis in response to the 5/23 TRO. Sycomp timely responded on June 20 with objections based
15 on Section 2019.210 as well as privilege
and work product.
16 4. Trace3 filed
a motion to compel, which the Court heard on July 28, 2023. On August
17 7, 2023, the Court issued an order granting Trace3’s motionto compel on the condition
that Trace3
18 serve a Code-compliant trade secret identification. Sycomp sought ex parte clarification of certain
19 aspects
of the 8/7 Order, which resulted in a further order on August 15, 2023, that clarified
and
20 modified the 8/7 Order in various respects. Sycomp served supplemental verified responses to
21 Trace3’s 100+ requests on August 15, 2023, in accordance with the 8/7 and 8/15 Orders and
22 following Trace3’s service of an amended trade secret disclosure.
23 5. On August 15 and 17, Sycomp produceda “first cut” document production of 617
24. documents, totaling almost 3,000 pages. These documents consisted of all non-privileged
25 documents with a hit on the search term “Trace3” that were located on the Sycomp devices or in
26 the Sycomp email accounts of the ten former Trace3 employees identified in Trace3’s initial
27 Complaint. At that time, as partof the expedited discovery ordered
by the Court, Sycomp prioritized
28 collecting and reviewing data from those ten former Trace3 employees—the ones identified in
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Trace3’s original Complaint as the “Sycomp Employees”—including the four original Individual
Defendants. Sycomp has since expanded its collection and review efforts beyond those ten
employees. This includes the data forJohn Bames which, while preserved on April 24, was not part
of Sycomp’s initial expedited productions because Bames was not one of the ten former Trace3
employees to whom it sent a demand letter, he was not a named defendant at that time (he was
added in the FAC on October 6), and he was not specifically identified in Trace3’s original
complaint as one of the key departing Trace3 employees. Sycomp has also collected all Sharepoint
repositories associated with the relevant custodians and is searching that data for potentially
responsive documents. If responsive documents exist, they will be produced.
10 6. On August 17, Trace3 filed an Ex Parte Application for Reconsideration or
11 Clarification of the Court’s August 15, 2023 Order. Trace3 sought an order relating to Sycomp’s
12 statements that its discovery responses were made subject to the “limitations imposed by the
13 Court’s August 15, 2023 order,” arguing that Sycomp was improperly limiting its discovery
14 obligations and “stretching” the 8/15 Order because the 8/15 Order only limited RFPs 1-2 and SI
15 4. Sycomp’s opposition explained that the 8/15 Order contains numerous other clarifications and.
16 limitations on the scope of discovery and that it was doing a diligent search for responsive
17 documents consistent with the Court’s discovery orders. The Court denied Trace3’s ex parte
18 application, including its requestto further limit the 8/15 Order, and confirmed that Sycomp was
19 doing the diligent search required.
20 7. On August 25, Trace3 took the deposition of Sycomp’s PMK. Trace did not ask
21 the PMK witness, Saurabh Saxena—who had verified Sycomp’s supplemental responses—a single
22 question about Sycomp’s supplemental responses or suggest any response was deficient.
23 8. On Sunday, August 27, twelve days after Sycomp had served its supplemental
24. discovery responses, Trace3 sent Sycomp a meet and confer letter purporting to identify, for the
25 first time, alleged deficiencies in some of Sycomp’s August 15 responses. A true and correct copy
26 of Trace3’s August 27 meet and confer letter is attached
as Exhibit 1.
27 9. On August 30, my partner, Jeanette Barzelay, sent
a detailed responseto Trace3’s
28 meet and confer letter, and
my office also produced an additional 5,510 documents (totaling almost
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15,000 pages) responsive to Trace3’s discovery requests. Sycomp’s letter confirmed that the
August 30 production included the bulk of the documents responsive to a number of the requests
about which Trace3 had inquired in its letter. The letter
also confirmed
that Sycomp was still
working diligentlyto comply
with the Coutt’s 8/7 and 8/15 Orders, noting that: “[a]s we have stated
repeatedly, Sycomp is working diligently to review and produce nom-privileged responsive
documents as quickly as is reasonably feasible, consistent with the Court’s Orders and the Code”
and that “[gl]iven the volume of information sought, Sycomp’s review necessarily is ongoing.” The
letter also confirmed
the validity of Sycomp’s privilege and work product objections to SIs 1, 2, 4,
21, 22, 24-27
and RFAs 22-24. A true and correct
copy of Ms. Barzelay’s
August 30 letter to Trace3
10 is attached
as Exhibit 2. Trace3 never responded to Sycomp’s
August 30 letter.
11 10. On August 31, Trace3 sought another ex parte extension of its deadline
to move for
12 preliminary injunction, which
the Court denied after oral argumenton September 1. Trace3 then.
13 failedto move for a preliminary injunction
by the ordered deadline, September6, and the Court’s
14 “follow the law’ TRO lapsed on September 29. During this time, Sycomp continued its ongoing
15 discovery efforts, moving from expedited to merits discovery with no PI motion filed.
16 11. On September 12, Trace3’s counsel wroteto inquire about the “status of Sycomp’s
17 production,” asking whether Sycomp’s August 30 production was complete and final or “whether
18 we should anticipate further rolling production to satisfy the Coutt’s order granting Trace3’s motion.
19 compel.” I confirmed the same day that “we are not done with our review and production.” When.
20 Trace3’s counsel asked when Sycomp expected to complete its production, I responded: “I don’t
21 know. We collected, reviewed, and produced the most relevant material already
(over 6k docs) and.
22 now we are working on everything else and will continue with rolling productions until we are
23 done.” A true and correct copy of my email comespondence
with Trace3’s counsel is attachedas
24. Exhibit3.
25 12. On September
14, the Court held an initial CMC. Trace3 again raised the timing and
26 completeness of Sycomp’s document production and asked the Court to impose a “date certain” by
27 which Sycomp must complete its document production. With no PI motion filed, however, the
28 Sy ‘comp’ Wo
Court declined to order a date certain for production, affirming Ss th Tolling productior
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approach to Trace3’s broad requests. A true and correct
copy of excerpts from the transcript
of the
September
14 CMC is attached
as Exhibit 4.
13. During this period, Sycomp worked to collect and analyze additional potentially
responsive data to the 56 RFPs Trace3 had served. That raw data collected contained roughly 2
million documents. Sycomp used analytics and support tools to narrow the data set to a reasonably
manageable review population—still tens of thousands of documents.
14. On September
18, Trace3 produced a set of documents in its parallel Arizona
litigation, where Trace3 is seeking to enforce invalid non-compete and nor-solicit contract
provisions against Sycomp and Trace3 former employee / now Sycomp employee, Dawn McCale,
10 who is a California resident. Trace3’s September 18 Arizona production included a number of
11 purchase orders (“POs”) between Trace3 and a key customer at issue in this case. Those POs
12 confirm Sycomp’s position, as set forth in the July 14, 2023 Declaration of Saurabh Saxena and in
13 other filings and meet and confer correspondence, that the customer
owns all project-related
work
14 product and deliverables, such as “Build Documents.” Accordingly, Trace3 cannot possibly “own’
15 those materials or claim themas its trade secrets, either alone or in a compilation. Upon reviewing
16 these documents, I immediately soughtto meet and confer with Trace3 regarding
the proper scope
17 of discovery conceming “Build Documents.” Sycomp temporarily paused its document review
18 efforts so these foundational issues could be resolved.
19 15. The Court held an IDC on Friday, October6, at 2:00 p.m, during which I raised the
20 issues conceming Trace3’s false “Build Document” claims and Sycomp’s intention to seek
21 appropriate relief from the Court with respect to any related discovery. On the next business
day
22 following the IDC, Monday, October 9, Sycomp resumed its document collection and review
23 efforts.
24. 16. Sycomp produced an additional 3,665 documents on October 30 and November 9
25 totaling almost 13,000 pages—bringing its total production to date to roughly 10,000 documents
26 and over 30,000 pages. Sycomp has located and produced hundreds of documents that pre-date
27 April 19, with more to come as additional responsive documents are identified.
28
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17. While Sycomp was continuing its efforts to complete its production in response to
Trace3’s broad initial discovery requests, and while this “Build Document” dispute was ongoing,
Trace3 served multiple additional sets of discovery requests on Sycomp. Trace3 served an
additional 33 RFPs, 20 SIs, 17 RFAs, and an additional FI 17.1 series. To date, Trace3 has now
served 89 RFPs (in five sets), 72 SIs (in five sets with SI 1 including 25 distinct subparts), 60 RFAs
(in three sets), and two sets of form intemogatories. Many of Trace3’s latest requests seek discovery
that is duplicative of Trace3’s initial requests, cumulative of the substantial discovery Sycomp has
already provided and continues to provide, or is outside the bounds of proper discovery under the
Code and this Court’s orders. As just one example, Trace3’s RFP 61 (Set Four) asks Sycomp to
10 “Produce for forensic examination any and all SY COMP ELECTRONIC DEVICES used by the
11 FORMER TRACE3 EMPLOY EES”—a transparent attemptto circumvent
the Court's prior orders
12 denying
that relief when requestedas partof Trace3’s two TRO applications, much like Trace3’s
13 repeated failed attempts to rewrite the Court’s Order providing for neutral forensic imaging (not
14 examination or searching) of the Individual Defendants’ personal devices.
15 18. In duplicative requests to RFPs 1-2 and SI 4, Trace3’s third set of RFPs and SIs
16 again asked Sycomp to produce and identify any documents that match any of the hash values or
17 file names for any document identified in Trade Secret Category Nos. 1-4 in Trace3’s August 7
18 amended trade secret disclosure. Sycomp served responses on October 27, 2023, which confim
19 that: (1) as to Trade Secret Category Nos. 2-4, Sycomp does not have and has never had any
20 documents matching any of the listed hash values; and (2) as to Trade Secret Category No. 1, the
21 “Build Document” compilation of 182,077 files, Sycomp identified 85 unique matches, 80 of which
22 are generic files that are omnipresent in business computer systems, such as company logos in
23 signature
blocks and headers, 2-byte system files, etc. (noneof which are owned or could be owned.
24. by Trace3, or could bea trade secret), and five of which are files sent by a Sycomp business partner
25 and lawfully receivedby Sycomp on July 6, 2023, in the normal course of business—none of which.
26 contain any reference to Trace3, and many of which are labeled proprietary to the third-party
27 partner. In other words, Sycomp does not have the Category 1 “Build Document” compilation and
28 does not have any document in Category Nos. 2-4. Sycomp also provided unqualified admissions
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to direct questions asking whether it had “checked” the Individual Defendants’ Sycomp devices for
certain activity.
19. During the October 6 IDC, the Court ordered Trace3 to meet and confer with
Sycomp—even if it would only last five minutes—to determine if there was some limited
information Sycomp could provide about its investigation without risk of waiving attomey-client
privilege or attomey work product. Trace3 failed to do so, much like Trace3 never respondedto
Sycomp’s August 30 letter.
20. Trace3 also never met and conferred with Sycomp regarding the specific alleged
deficiencies in Sycomp’s document production that Trace3 has raised for the first time in its motion
10 to compel. Trace3 complains that certain documents appearto be missing, but Sycomp’s production.
11 and review
are ongoing. It is expected and not surprising that some documents have not yet been.
12 produced.
13 21. Trace3’s claims that Sycomp has improperly delayed its document production are
14 inconsistent with Trace3’s own discovery conduct. Trace3 waited five months before producing
15 any substantive documents in responseto Sycomp’s May 26 requests, then served
a document
16 dump on Sycomp just before Trace3’s opposition to Sycomp’s motion to compel was due.
17 I declare
under penalty of perjury that the foregoing is true and correct.
18 Executed this 17th day of November, at Sacramento, Califomia.
19 /s/ Rajiv Dharnidharka
20 Rajiv Dhamidharka
21
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23
24.
25
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Exhibit1
= Davis Wright
LJ
Suite 500 East
1301 K Street NW
Tremaine Le Washington, D.C. 20005-3317
Jeremy B. Merkelson
202-973-4260 direct
917-968-1453 cell
jeremymerkelson@dwt.com
August 27, 2023
VIA EMAIL
Rajiv Dharnidharka
Jeanette Barzelay
Micah A. Chavin
Erin Heiferman
DLA PIPER LLP
2000 University Avenue
East Palo Alto, California 94303-2214
Re: Trace3, LLC v. Sycomp et al. — Meet and Confer Regarding Defendant
Sycomp’s Supplemental Discovery Responses Served August 15, 2023
Dear Counsel:
The purpose of this letter is to meet and confer regarding the follow discovery served on
August 15, 2023 by Defendant Sycomp A Technology Company, Inc. (“Sycomp”):
1 DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST
SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S SPECIAL
INTERROGATORIES, SET ONE - HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES
ONLY;
DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST
SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF TRACE3, LLC’S
SPECIAL INTERROGATORIES TO DEFENDANT SYCOMP A TECHNOLOGY
COMPANY, INC., SET TWO;
DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST
SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S REQUESTS
FOR PRODUCTION OF DOCUMENTS, SET ONE;
DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST
SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF TRACE3, LLC’S
REQUESTS FOR PRODUCTION TO DEFENDANT SYCOMP A TECHNOLOGY
COMPANY, INC., SET TWO;
DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST
SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S REQUESTS
DWT.COM
August 27, 2023
Page 2
FOR ADMISSION, SET ONE - HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES
ONLY; and
DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST
SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S FORM
INTERROGATORIES, LLC, SET ONE - HIGHLY CONFIDENTIAL — ATTORNEYS’
EYES ONLY.
Special Interrogatories, Set One and Set Two
The attempts to avoid providing fulsome supplemental discovery responses to Trace3’s
special interrogatories are improper and abundant. Sycomp must provide further amended
discovery responses promptly as to the following issues:
A Assertion of Inability to Response Based on Lack of Information
Sycomp asserts a lack of knowledge and/or inability to respond to many interrogatories
on the ground that the information is in the possession, custody, or control of its employees (see,
e.g., Special Interrogatories, Set One, Request Nos. 23, 24, 25, 26, 27). These responses are not
proper, as it is clear that it is within Sycomp’s ability to direct and request the information sought
in discovery from its own employees. Further, limited searches over employee-controlled
information has already been partially undertaken as Sycomp asserted that “false positives” were
discovered on two electronic devices belonging to one of the individual defendant employees
that Sycomp now claims it has not control over. This attempt at avoiding Sycomp’s obligations
much be corrected promptly.
B Improper Privilege Assertions
Sycomp improperly asserts privilege objections as to numerous special interrogatories,
claiming that searches for misappropriated Trace3 trade secrets and confidential information is
somehow “privileged.” Specifically, the responses for Special Interrogatories, Set One, Nos. 1,
2,4, 21, 22, 24, 25, 26, 27, 28 all assert privilege and withhold fulsome responses on that basis.
Trace3 disagrees that the efforts taken the search for misappropriated trade secret information is
privileged and Sycomp must provide case law in support of the claim that the steps taken and its
actual efforts to search, and when and whether searches were performed, are privileged.
Whether or not Sycomp owns any trade secrets (Special Interrogatory, Set One, Request No. 9)
is also not privileged, and this objection is nonsensical. These responses must be further
supplemented.
Cc Incomplete and Evasive Responses Requiring Supplementation
The following special interrogatory responses should all be further supplemented on the basis that
the responses are incomplete and evasive:
August 27, 2023
Page 3
Interrogatory No. 4 — it is improper for Sycomp to evade answering which
documents are personal by contending the information is Highly Confidential and
this response should be supplemented;
Interrogatory No. 5 — this request relates to the RnR business prior to Sycomp hiring
Trace3’s employees and the response does not include deal registration numbers or
a complete list of customers, or any specific dates for RnR business;
Interrogatory No. 6 — this response attempts to limit Sycomp’s build documents to
a “Relevant Period” that the Court’s August 7, 2023 Order expressly rejected and
therefore this response must be supplemented;
Interrogatory No. 9 — Sycomp must respond as to whether it contends that it has
any trade secrets concerning RnR;
Interrogatory No. 10 — It is not unduly burdensome to respond as to whether any
Sycomp employees have visited Trace3’s NorCal RnR labs as part of Sycomp’s
business. The Court has ordered Sycomp to respond to this request, and Sycomp
is obligated to conduct a reasonable and diligent investigation and inquiry in order
to respond;
Interrogatory No. 11 — Sycomp must respond as to whether any of its employees
have solicited or performed work for the relevant customers, as defined. If there
are documents responsive to this request, as Sycomp indicates, where are they?
They were not produced. Sycomp should clarify its answer to this response to
confirm whether the solicitations and work performed are so numerous that only a
production of documents so showing would be manageable;
g Interrogatory No. 12 — Sycomp must produce the deals obtained since May 1, as it
has indicated it would. Sycomp must also identify how it learned of those
opportunities as this information is obviously integral to the claims in this case;
Interrogatory Nos. 14, 16, 18 — these requests relate to specific business
opportunities and Sycomp must supplement its responses to provide information as
to how Sycomp learned of these opportunities and confirm whether documents have
been produced as the responses indicated; and
Interrogatory No. 17 — this response is evasive and attempts to limit the response
based on timing and should be amended.
D. Failure to Produce Documents in Response to Special Interrogatories
We note that for several responses to special interrogatories, Sycomp states that it “will
produce responsive documents” to address or respond to the information requested (see, e.g.,
Special Interrogatories, Set One, Request Nos. 11, 12, 14, 16, 18, 19) but it appears that no
responsive documents have been produced as to these requests. Please advise us promptly: (1) if
these documents have been produced and their bates ranges; and (2) if they have not been
produced, when they will be produced.
Requests for Production of Documents, Set One and Set Two
There are a number of problems with Sycomp’s supplemental responses to Trace3’s
requests for production.
August 27, 2023
Page 4
First, Sycomp generally asserts privilege as to the requests for production but has not
provided a privilege log detailing which documents have been withheld on the basis of privilege.
A privilege log should be provided immediately, as it was requested as part of the instructions for
each set of requests.
Second, many responses to the requests for production state that they are “limited to the
August 15, 2023 Order.” Sycomp must clarify what information and documents are being
withheld on this basis, as this response was included for all of the Requests for Production, Nos.
1-52.
Third, Sycomp objects and refuses to produce documents concerning Stacy Thompson
where anyone from Trace3 is copied on the email under the false assertion that Trace3 should
already have these documents/emails. This is not the case as Trace3 employees stole documents
when leaving and then deleted information. Further, claiming that Trace3 has documents and
therefore Sycomp won’t produce them is not proper and cannot be the basis for avoiding discovery
obligations.
Requests for Admission, Set One
Responses to Requests for Admission, Nos. 22-24 should be further supplemented.
Request Nos. 22-24 concern searches conducted for the misappropriated trade secret and
confidential information. Sycomp cannot hide behind an assertion of privilege as to what searches
were conducted. The actual searches conducted are not privileged, and if no searches were
conducted (at the direction of counsel or otherwise), that should also be stated. Counsel for
Sycomp should provide case law supporting the assertion that this information is privileged if
Sycomp intends on refusing the provide fulsome responses.
Form Interrogatories, Set One
Sycomp’s response to Form Interrogatory No. 17.1 does not disclose documents or
witnesses and fails to properly state all facts upon which a denial of a request for admission is
based. This response should be further supplemented.
Continued discovery disputes and failure to provide substantive supplemental responses
is costly, time-consuming, and contrary to the instructions and orders from the court. Trace3
should not be forced to file another motion to obtain this court-ordered discovery from Sycomp,
and if it is required to do so, it will seek an appropriate sanction. Please respond to this
correspondence, provide supplemental responses, and confirm that your production of documents
responsive to Trace3’s requests for production, which this Court compelled Sycomp to answer,
will be complete no later than Thursday, August 31, 2023 so that the parties can avoid further
discovery motion practice, including motions for appropriate relief in connection with Trace3’s
forthcoming motion for preliminary injunction.
Sincerely,
August 27, 2023
Page 5
Aaag? Medan
Jeremy B. Merkelson
DLA Piper Lip (us)
555 Mission Street, Suite 2400
San Francisco, California 94105-2933
DLA PIPER www.dlapiper.com
Jeanette Barzelay
jeanette.barzelay@us.dlapiper.com
415.836.2567
415.659.7317
August 30, 2023
JA MAIL NLY
Jeremy B. Merkelson, jeremymerkelson@dwt.com
Nicole S. Phillis, nicolephillis@dwt.com
Davis Right Tremaine LLP
Suite 500 East
1301 K Street NW
Washington, D.C. 20005-3317
Re: Sycomp’s Response to Trace3’s August 27, 2023 Meet and Confer Letter re Sycomp’s
Supplemental Discovery Responses
Counsel:
We write in response to your meet and confer letter concerning Sycomp’s August 15, 2023 Supplemental
Discovery Responses, which you felt the need to send on Sunday morning, August 27, 2023 (the “August
27 Letter”). Please be advised that our office will not respond to (nor will we send) any communications or
requests outside of normal business hours unless the matters are truly urgent and time-sensitive in nature.
To be sure, Trace3’s August 27 Letter, which raises purported deficiencies in Sycomp’s discovery
responses served twelve days earlier, is not an urgent matter justifying the weekend interruption.
I The August 27 Letter Mischaracterizes the Current Status of Discovery and Sycomp’s
Diligent Efforts to Comply with the Court’s Orders.
Before we turn to the specific issues raised in your August 27 Letter, we need to set the record straight as
to the status of discovery and push back on the false narrative by Trace3 that Sycomp is improperly
“avoiding” responding to the discovery as ordered in the Court’s August 7 and August 15 Orders. The facts.
clearly show otherwise.
On August 15, Sycomp served substantive responses to Trace3’s 136 written discovery
equests, on a seven-day turnaround as ordered.
On August 15 and 17, Sycomp served Trace3 with a “first cut” document production of 617
This started, of course, with Trace3 failing for months, despite Sycomp’s urging, to serve a Code-compliant
Section 2019.210 trade secret disclosure. The Court found Sycomp’s objections “legally and factually”
justified but nonetheless granted Trace3’s motion to compel provided it serve an amended disclosure, which
would trigger Sycomp’s seven-day deadline to respond to Trace3’s discovery. The first possible date that
Trace3 could have complied with Section 2019.210, thereby allowing it to pursue discovery, was August 8
(given Trace3’s service of the amended disclosure after business hours on August 7).
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Nicole S. Phillis
August 30, 2023
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documents, totaling almost _3,000 pages. These documents consist of all non-privileged
documents located on the former Trace3 employees’ Sycomp devices or in their Sycomp email
accounts that contain the obviously relevant term “Trace3.” As such, they necessarily would
encompass the most directly responsive documents, including any alleged Trace3 trade secret
documents that contain the term “Trace3” in the document title or body. Not surprisingly, no such
documents were identified.
Between August 18 and August 25, Trace3 took five depositions of: (a) all three remaining
Individual Defendants (Cordell, Peterson, and Tomcik), (b) Sycomp’s Global VP of Engineering,
Saurabh Saxena, and (c) Sycomp’s designated person most qualified (also Mr. Saxena). These
depositions were in addition to the cross-examination of third-party Stacy Thompson that Trace3
conducted on July 13. All told, Trace3 used only four documents from Sycomp’s initial production
(617 documents) during the depositions.
Meanwhile, on August 17, Trace3 filed a baseless ex parte application for reconsideration of the
August 15 Order, which Sycomp successfully opposed. In denying Trace3’s ex parte, the Court
noted based on Sycomp’s written and oral statements that Sycomp is undertaking a diligent search
in response to Trace3’s discovery requests, and that “[w]hether Trace3 will agree the search was
‘diligent’ is a question for another day.” 8/22 Order (emphasis added).
On August 25, we confirmed on the record during the PMQ deposition that whatever documents
Sycomp reasonably can produce before Trace3’s PI motion deadline will be produced. See PMQ
Rough Tr. at 53:4-24.
Just this morning, we produced an additional 5,510 documents totaling almost 15,000 pages.
Trace3 now claims that certain of Sycomp’s supplemental responses are inadequate and demands near-
immediate supplementation/completion, but Trace3 waited twelve days before raising a single alleged
deficiency in any of Sycomp’s responses, after all of the depositions were concluded. Even more telling,
Trace3 did not ask Sycomp’s PMQ a single question about Sycomp’s supplemental discovery responses,
did not use Sycomp’s discovery responses as exhibits during any of the depositions including the PMQ,
and asked the PMQ designee questions about just one Sycomp-produced document.
Trace3’s demand that Sycomp supplement dozens of its responses, “immediately” produce a privilege log,
and “confirm” that its document production in response to 52 RFPs and a number of related interrogatories
“will be complete” by August 31, 2023—i.e., in just three business days—is improper, unreasonable, and
inconsistent with the realities of expedited discovery. To be sure, no law or Court order allows Trace3 to
unilaterally demand that Sycomp further supplement its discovery responses, let alone on a three-day
turnaround. And the Court plainly did not order Sycomp to complete its document production by any date
certain or even before Trace3’s PI motion filing deadline. Rather, as the Court made clear at the August 10
hearing, the 5/23 Order contemplated that “both sides would have some discovery’—i.e., not all. See 8/10
ACTIVE\1602667429.1
DLA PIPER
Jeremy B. Merkelson
Nicole S. Phillis
August 30, 2023
Page Three
Tr. at 18:19-19:8; see also id. at 39:14-40:10 (Court suggesting ways to narrow requests so Trace3 could
get “some documents or [] get some information”) (emphases added).
In fact, the Court made clear that Trace3 would not get all of the discovery from Sycomp before its extended
September 6 PI motion deadline, which you expressly acknowledged and accepted:
You
understand,
THE COURT: I think, that you
will unlikely get all the discovery you seek before you
have to file your opening brief, right? Now, what I
don't want is a situation where the day before the
opening brief is due, you file another Ex Parte
application saying, "We didn't get this. We didn't get
that."
MR. MERKELSON: ‘There is no perfect world. We
understand that right now, but we need -- we need
‘something. We've made that request. We'll see what we
get. But I think it's our view that as long as we get
the core of what we are looking for, we're not going to
try to push this out any longer It's not in our
interest to do that, frankly.
See 8/10 Tr. at 6 :13-7:1 (emphasis added). Your August 27 Letter is patently unreasonable and flies in the
face of these prior statements.
The unreasonableness of Trace3’s position and unilateral demands is underscored by Trace3’s own
discovery deficiencies and chosen litigation strategy. Trace3 still has not provided Code-compliant
responses to the discovery Sycomp served at the end of May and has produced fewer documents than
Sycomp, by orders of magnitude. What has been produced is at best ancillary to the core factual issues
raised by Sycomp’s requests, as it consists mostly of standard policy documents, employee personnel files
and on-boarding/off-boarding materials, reproduction of documents attached to Trace3’s filings, and/or
ACTIVE\1602667429.1
DLA PIPER
Jeremy B. Merkelson
Nicole S. Phillis
August 30, 2023
Page Four
reproduction of the Kopelev exhibits or Trace3 TS/CI file name listings. Importantly, Trace3 still has not
re ‘oduced any of the alleged trade secret documents or the compilation that it claims are its trade
secrets, and it still has not produced a Code-compliant response to Sycomp’s SI 1 and follow-on
interrogatories asking Trace3 to identify its trade secrets and provide the factual bases for that assertion as
to each alleged trade secret. To be sure, Sycomp will move to compel on these and other issues at the
earliest opportunity.
At the same time, Trace3 has elected to forego certain discovery as part of its chosen litigation strategy.
This includes all of the discovery Trace3 initially served on the Individual Defendants, as to which Trace3
did not timely move to compel (and which it is now improperly seeking through the back door under the
guise of “remediation” and/or additional discovery requests seeking the same information). The only non-
party subpoena Trace3 served was on its former employee, Stacy Thompson, after she was subpoenaed
by Sycomp and Trace3 was permitted to cross-examine her.
In sum, Trace has received substantive responses from Sycomp to 136 requests; Trace3 has received
over 6,000 responsive documents; and Trace3 has taken six depositions, including of Sycomp’s PMQ. We
know Sycomp’s discovery responses and document production do not provide the evidence Trace3 needs
to support its claims, including its PI motion. But that does not mean Sycomp is “avoiding” discovery or that
its responses are deficient.
I. Sycomp’s Supplemental Responses Are Sufficient and Do Not Require Supplementation,
Let Alone on Trace3’s Rushed Timeline.
Turning now to the specific requests and issues outlined in your August 27 Letter, the majority of Trace3’s
issues appear targeted at improperly invading privileges or else appear to take issue with the substance of
Sycomp’s responses because they are unhelpful to Trace3’s case. We address each of your issues below.
a Sycomp’s privilege and work product objections are valid, and Trace3’s continued
efforts to invade privilege are improper.
Trace3 claims Sycomp’s attorney-client privilege and work product objections—objections the Court
expressly authorized—are improper because Trace3 “disagrees” that information regarding Sycomp’s.
investigation of Trace3’s claims during and in anticipation of litigation is privileged. August 27 Letter at 2.
Trace3’s continued attempts to invade Sycomp’s and its counsel’s privileges—including by badgering
Again, Trace3’s production is even smaller than it appears on its face. Of the 578 documents produced,
127 documents are exact duplicates that have been produced twice—once with one Bates number, and a
second time with both the original Bates number and a second Bates number overlaid on top.
Trace3’s “subpoena” on Saurabh Saxena, Sycomp’s Global VP of Engineering, was not a proper
subpoena because Mr. Saxena is subject to deposition pursuant to a standard deposition notice. See Code
Civ. Proc. § 20
Preview
RAJIV DHARNIDHARKA (Cal. Bar No. 234756) tajiv.dhamidharka@dlapiy JEANETTE BARZELAY (CalBar No 261780) jeanette. barzelay @us. dlapi MICAHA. CHAVIN (Cal. Bar NO. 313634) micah.chavin@dlapiper.com DLA PIPER LLP 3203 Hanover Street, Suite 100 Palo Alto, CA_ 94304-1123 Te: 650.833.2000 Fax: 650.833.2001 Attomeys for Defendant SycompA Technology Company, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA TRACE3, LLC a Califomia limited liability CASENO. 23CV415833 company, DECLARATION OF RAJIV DHARNIDHARKA IN SUPPORT OF Plaintiff, DEFENDANT SYCOMP A TECHNOLOGY COMPANY INC.’S OPPOSITIONTO TRACE3 S MOTION TO COMPEL COMPLIANCE WITH SY COMP A TECHNOLOGY COMPANY COURT ORDER AND FURTHER INC., a Califomia corporation; TIMOTHY RESPONSES TO SPECIAL CORDELL, an individual; GEOFF PETERSON, INTERROGATORIES NOS. 1 2, 4, 21, 22, an individual; DEVIN TOMCIK, an individual 24, 25, 26, 27; REQUESTS JOHN BARNES, an individual; and DOES 1- ADMISSIONS NOS. inclusive; REQUESTS FOR PRODUCTION 1-56; AND FOR SANCTIONS Defendants. Date: December15, 2023 Time: 9:00am. Dept: 1 Action Filed: May 12, 2023 DLA PER LLP( ) L un CASE NO. 23CV415833 DHARNIDHARKA DECL. ISO SY COMP OPP. TO TRACE3 MOTION TO COMPEL ACTIVE\1602186435.1 I, Rajiv Dhamidharka, declare as follows: 1 I am Partner at the law firm of DLA Piper LLP (US) and counsel of record for Defendant Sycomp A Technology Company, Inc. (“Sycomp”) in the above-captioned action. I am a member in good standing of the State Bar of Califomia and have been admitted to practice law before this Court. I have personal knowledge of the facts set forth in this Declaration, and if called. as a witness, could and would testify competently to such facts under oath. 2. On June 2, 2023, Trace3 served its first set of discovery requests on Sycomp, including 52 RFPs, 19 SIs (one with 25 subparts), 43 RFAs, and multiple form interrogatories including 17.1. Sycomp served timely responses on June 9, 2023, which consisted of only 10 objections because Trace3 had not satisfied the gating requirements of Code of Civil Procedure 11 section 2019.210 (“Section 2019.210”). 12 3. On June 13, Trace3 served a second set of 4 RFPs and 8 Sls specifically targeting 13 privileged, attomey work product information regarding Sycomp’s investigation and forensic 14 analysis in response to the 5/23 TRO. Sycomp timely responded on June 20 with objections based 15 on Section 2019.210 as well as privilege and work product. 16 4. Trace3 filed a motion to compel, which the Court heard on July 28, 2023. On August 17 7, 2023, the Court issued an order granting Trace3’s motionto compel on the condition that Trace3 18 serve a Code-compliant trade secret identification. Sycomp sought ex parte clarification of certain 19 aspects of the 8/7 Order, which resulted in a further order on August 15, 2023, that clarified and 20 modified the 8/7 Order in various respects. Sycomp served supplemental verified responses to 21 Trace3’s 100+ requests on August 15, 2023, in accordance with the 8/7 and 8/15 Orders and 22 following Trace3’s service of an amended trade secret disclosure. 23 5. On August 15 and 17, Sycomp produceda “first cut” document production of 617 24. documents, totaling almost 3,000 pages. These documents consisted of all non-privileged 25 documents with a hit on the search term “Trace3” that were located on the Sycomp devices or in 26 the Sycomp email accounts of the ten former Trace3 employees identified in Trace3’s initial 27 Complaint. At that time, as partof the expedited discovery ordered by the Court, Sycomp prioritized 28 collecting and reviewing data from those ten former Trace3 employees—the ones identified in DLA PER LLP( ) L Lro CASE NO. 23CV415833 DHARNIDHARKA DECL. ISO SY COMP OPP. TO TRACE3 MOTION TO COMPEL ACTIVE\1602186435.1 Trace3’s original Complaint as the “Sycomp Employees”—including the four original Individual Defendants. Sycomp has since expanded its collection and review efforts beyond those ten employees. This includes the data forJohn Bames which, while preserved on April 24, was not part of Sycomp’s initial expedited productions because Bames was not one of the ten former Trace3 employees to whom it sent a demand letter, he was not a named defendant at that time (he was added in the FAC on October 6), and he was not specifically identified in Trace3’s original complaint as one of the key departing Trace3 employees. Sycomp has also collected all Sharepoint repositories associated with the relevant custodians and is searching that data for potentially responsive documents. If responsive documents exist, they will be produced. 10 6. On August 17, Trace3 filed an Ex Parte Application for Reconsideration or 11 Clarification of the Court’s August 15, 2023 Order. Trace3 sought an order relating to Sycomp’s 12 statements that its discovery responses were made subject to the “limitations imposed by the 13 Court’s August 15, 2023 order,” arguing that Sycomp was improperly limiting its discovery 14 obligations and “stretching” the 8/15 Order because the 8/15 Order only limited RFPs 1-2 and SI 15 4. Sycomp’s opposition explained that the 8/15 Order contains numerous other clarifications and. 16 limitations on the scope of discovery and that it was doing a diligent search for responsive 17 documents consistent with the Court’s discovery orders. The Court denied Trace3’s ex parte 18 application, including its requestto further limit the 8/15 Order, and confirmed that Sycomp was 19 doing the diligent search required. 20 7. On August 25, Trace3 took the deposition of Sycomp’s PMK. Trace did not ask 21 the PMK witness, Saurabh Saxena—who had verified Sycomp’s supplemental responses—a single 22 question about Sycomp’s supplemental responses or suggest any response was deficient. 23 8. On Sunday, August 27, twelve days after Sycomp had served its supplemental 24. discovery responses, Trace3 sent Sycomp a meet and confer letter purporting to identify, for the 25 first time, alleged deficiencies in some of Sycomp’s August 15 responses. A true and correct copy 26 of Trace3’s August 27 meet and confer letter is attached as Exhibit 1. 27 9. On August 30, my partner, Jeanette Barzelay, sent a detailed responseto Trace3’s 28 meet and confer letter, and my office also produced an additional 5,510 documents (totaling almost DLA PER LLP( ) L Lro CASE NO. 23CV415833 DHARNIDHARKA DECL. ISO SY COMP OPP. TO TRACE3 MOTION TO COMPEL ACTIVE\1602186435.1 15,000 pages) responsive to Trace3’s discovery requests. Sycomp’s letter confirmed that the August 30 production included the bulk of the documents responsive to a number of the requests about which Trace3 had inquired in its letter. The letter also confirmed that Sycomp was still working diligentlyto comply with the Coutt’s 8/7 and 8/15 Orders, noting that: “[a]s we have stated repeatedly, Sycomp is working diligently to review and produce nom-privileged responsive documents as quickly as is reasonably feasible, consistent with the Court’s Orders and the Code” and that “[gl]iven the volume of information sought, Sycomp’s review necessarily is ongoing.” The letter also confirmed the validity of Sycomp’s privilege and work product objections to SIs 1, 2, 4, 21, 22, 24-27 and RFAs 22-24. A true and correct copy of Ms. Barzelay’s August 30 letter to Trace3 10 is attached as Exhibit 2. Trace3 never responded to Sycomp’s August 30 letter. 11 10. On August 31, Trace3 sought another ex parte extension of its deadline to move for 12 preliminary injunction, which the Court denied after oral argumenton September 1. Trace3 then. 13 failedto move for a preliminary injunction by the ordered deadline, September6, and the Court’s 14 “follow the law’ TRO lapsed on September 29. During this time, Sycomp continued its ongoing 15 discovery efforts, moving from expedited to merits discovery with no PI motion filed. 16 11. On September 12, Trace3’s counsel wroteto inquire about the “status of Sycomp’s 17 production,” asking whether Sycomp’s August 30 production was complete and final or “whether 18 we should anticipate further rolling production to satisfy the Coutt’s order granting Trace3’s motion. 19 compel.” I confirmed the same day that “we are not done with our review and production.” When. 20 Trace3’s counsel asked when Sycomp expected to complete its production, I responded: “I don’t 21 know. We collected, reviewed, and produced the most relevant material already (over 6k docs) and. 22 now we are working on everything else and will continue with rolling productions until we are 23 done.” A true and correct copy of my email comespondence with Trace3’s counsel is attachedas 24. Exhibit3. 25 12. On September 14, the Court held an initial CMC. Trace3 again raised the timing and 26 completeness of Sycomp’s document production and asked the Court to impose a “date certain” by 27 which Sycomp must complete its document production. With no PI motion filed, however, the 28 Sy ‘comp’ Wo Court declined to order a date certain for production, affirming Ss th Tolling productior DLA PER LLP( ) L Lro CASE NO. 23CV415833 DHARNIDHARKA DECL. ISO SY COMP OPP. TO TRACE3 MOTION TO COMPEL ACTIVE\1602186435.1 approach to Trace3’s broad requests. A true and correct copy of excerpts from the transcript of the September 14 CMC is attached as Exhibit 4. 13. During this period, Sycomp worked to collect and analyze additional potentially responsive data to the 56 RFPs Trace3 had served. That raw data collected contained roughly 2 million documents. Sycomp used analytics and support tools to narrow the data set to a reasonably manageable review population—still tens of thousands of documents. 14. On September 18, Trace3 produced a set of documents in its parallel Arizona litigation, where Trace3 is seeking to enforce invalid non-compete and nor-solicit contract provisions against Sycomp and Trace3 former employee / now Sycomp employee, Dawn McCale, 10 who is a California resident. Trace3’s September 18 Arizona production included a number of 11 purchase orders (“POs”) between Trace3 and a key customer at issue in this case. Those POs 12 confirm Sycomp’s position, as set forth in the July 14, 2023 Declaration of Saurabh Saxena and in 13 other filings and meet and confer correspondence, that the customer owns all project-related work 14 product and deliverables, such as “Build Documents.” Accordingly, Trace3 cannot possibly “own’ 15 those materials or claim themas its trade secrets, either alone or in a compilation. Upon reviewing 16 these documents, I immediately soughtto meet and confer with Trace3 regarding the proper scope 17 of discovery conceming “Build Documents.” Sycomp temporarily paused its document review 18 efforts so these foundational issues could be resolved. 19 15. The Court held an IDC on Friday, October6, at 2:00 p.m, during which I raised the 20 issues conceming Trace3’s false “Build Document” claims and Sycomp’s intention to seek 21 appropriate relief from the Court with respect to any related discovery. On the next business day 22 following the IDC, Monday, October 9, Sycomp resumed its document collection and review 23 efforts. 24. 16. Sycomp produced an additional 3,665 documents on October 30 and November 9 25 totaling almost 13,000 pages—bringing its total production to date to roughly 10,000 documents 26 and over 30,000 pages. Sycomp has located and produced hundreds of documents that pre-date 27 April 19, with more to come as additional responsive documents are identified. 28 DLA PER LLP( ) L Lro CASE NO. 23CV415833 DHARNIDHARKA DECL. ISO SY COMP OPP. TO TRACE3 MOTION TO COMPEL ACTIVE\1602186435.1 17. While Sycomp was continuing its efforts to complete its production in response to Trace3’s broad initial discovery requests, and while this “Build Document” dispute was ongoing, Trace3 served multiple additional sets of discovery requests on Sycomp. Trace3 served an additional 33 RFPs, 20 SIs, 17 RFAs, and an additional FI 17.1 series. To date, Trace3 has now served 89 RFPs (in five sets), 72 SIs (in five sets with SI 1 including 25 distinct subparts), 60 RFAs (in three sets), and two sets of form intemogatories. Many of Trace3’s latest requests seek discovery that is duplicative of Trace3’s initial requests, cumulative of the substantial discovery Sycomp has already provided and continues to provide, or is outside the bounds of proper discovery under the Code and this Court’s orders. As just one example, Trace3’s RFP 61 (Set Four) asks Sycomp to 10 “Produce for forensic examination any and all SY COMP ELECTRONIC DEVICES used by the 11 FORMER TRACE3 EMPLOY EES”—a transparent attemptto circumvent the Court's prior orders 12 denying that relief when requestedas partof Trace3’s two TRO applications, much like Trace3’s 13 repeated failed attempts to rewrite the Court’s Order providing for neutral forensic imaging (not 14 examination or searching) of the Individual Defendants’ personal devices. 15 18. In duplicative requests to RFPs 1-2 and SI 4, Trace3’s third set of RFPs and SIs 16 again asked Sycomp to produce and identify any documents that match any of the hash values or 17 file names for any document identified in Trade Secret Category Nos. 1-4 in Trace3’s August 7 18 amended trade secret disclosure. Sycomp served responses on October 27, 2023, which confim 19 that: (1) as to Trade Secret Category Nos. 2-4, Sycomp does not have and has never had any 20 documents matching any of the listed hash values; and (2) as to Trade Secret Category No. 1, the 21 “Build Document” compilation of 182,077 files, Sycomp identified 85 unique matches, 80 of which 22 are generic files that are omnipresent in business computer systems, such as company logos in 23 signature blocks and headers, 2-byte system files, etc. (noneof which are owned or could be owned. 24. by Trace3, or could bea trade secret), and five of which are files sent by a Sycomp business partner 25 and lawfully receivedby Sycomp on July 6, 2023, in the normal course of business—none of which. 26 contain any reference to Trace3, and many of which are labeled proprietary to the third-party 27 partner. In other words, Sycomp does not have the Category 1 “Build Document” compilation and 28 does not have any document in Category Nos. 2-4. Sycomp also provided unqualified admissions DLA PER LLP( ) L Lro CASE NO. 23CV415833 DHARNIDHARKA DECL. ISO SY COMP OPP. TO TRACE3 MOTION TO COMPEL ACTIVE\1602186435.1 to direct questions asking whether it had “checked” the Individual Defendants’ Sycomp devices for certain activity. 19. During the October 6 IDC, the Court ordered Trace3 to meet and confer with Sycomp—even if it would only last five minutes—to determine if there was some limited information Sycomp could provide about its investigation without risk of waiving attomey-client privilege or attomey work product. Trace3 failed to do so, much like Trace3 never respondedto Sycomp’s August 30 letter. 20. Trace3 also never met and conferred with Sycomp regarding the specific alleged deficiencies in Sycomp’s document production that Trace3 has raised for the first time in its motion 10 to compel. Trace3 complains that certain documents appearto be missing, but Sycomp’s production. 11 and review are ongoing. It is expected and not surprising that some documents have not yet been. 12 produced. 13 21. Trace3’s claims that Sycomp has improperly delayed its document production are 14 inconsistent with Trace3’s own discovery conduct. Trace3 waited five months before producing 15 any substantive documents in responseto Sycomp’s May 26 requests, then served a document 16 dump on Sycomp just before Trace3’s opposition to Sycomp’s motion to compel was due. 17 I declare under penalty of perjury that the foregoing is true and correct. 18 Executed this 17th day of November, at Sacramento, Califomia. 19 /s/ Rajiv Dharnidharka 20 Rajiv Dhamidharka 21 22 23 24. 25 26 27 28 DLA PER LLP( ) L Lro CASE NO. 23CV415833 DHARNIDHARKA DECL. ISO SY COMP OPP. TO TRACE3 MOTION TO COMPEL ACTIVE\1602186435.1 Exhibit1 = Davis Wright LJ Suite 500 East 1301 K Street NW Tremaine Le Washington, D.C. 20005-3317 Jeremy B. Merkelson 202-973-4260 direct 917-968-1453 cell jeremymerkelson@dwt.com August 27, 2023 VIA EMAIL Rajiv Dharnidharka Jeanette Barzelay Micah A. Chavin Erin Heiferman DLA PIPER LLP 2000 University Avenue East Palo Alto, California 94303-2214 Re: Trace3, LLC v. Sycomp et al. — Meet and Confer Regarding Defendant Sycomp’s Supplemental Discovery Responses Served August 15, 2023 Dear Counsel: The purpose of this letter is to meet and confer regarding the follow discovery served on August 15, 2023 by Defendant Sycomp A Technology Company, Inc. (“Sycomp”): 1 DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET ONE - HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY; DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF TRACE3, LLC’S SPECIAL INTERROGATORIES TO DEFENDANT SYCOMP A TECHNOLOGY COMPANY, INC., SET TWO; DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE; DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF TRACE3, LLC’S REQUESTS FOR PRODUCTION TO DEFENDANT SYCOMP A TECHNOLOGY COMPANY, INC., SET TWO; DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S REQUESTS DWT.COM August 27, 2023 Page 2 FOR ADMISSION, SET ONE - HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY; and DEFENDANT SYCOMP A TECHNOLOGY COMPANY _INC.’S FIRST SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S FORM INTERROGATORIES, LLC, SET ONE - HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY. Special Interrogatories, Set One and Set Two The attempts to avoid providing fulsome supplemental discovery responses to Trace3’s special interrogatories are improper and abundant. Sycomp must provide further amended discovery responses promptly as to the following issues: A Assertion of Inability to Response Based on Lack of Information Sycomp asserts a lack of knowledge and/or inability to respond to many interrogatories on the ground that the information is in the possession, custody, or control of its employees (see, e.g., Special Interrogatories, Set One, Request Nos. 23, 24, 25, 26, 27). These responses are not proper, as it is clear that it is within Sycomp’s ability to direct and request the information sought in discovery from its own employees. Further, limited searches over employee-controlled information has already been partially undertaken as Sycomp asserted that “false positives” were discovered on two electronic devices belonging to one of the individual defendant employees that Sycomp now claims it has not control over. This attempt at avoiding Sycomp’s obligations much be corrected promptly. B Improper Privilege Assertions Sycomp improperly asserts privilege objections as to numerous special interrogatories, claiming that searches for misappropriated Trace3 trade secrets and confidential information is somehow “privileged.” Specifically, the responses for Special Interrogatories, Set One, Nos. 1, 2,4, 21, 22, 24, 25, 26, 27, 28 all assert privilege and withhold fulsome responses on that basis. Trace3 disagrees that the efforts taken the search for misappropriated trade secret information is privileged and Sycomp must provide case law in support of the claim that the steps taken and its actual efforts to search, and when and whether searches were performed, are privileged. Whether or not Sycomp owns any trade secrets (Special Interrogatory, Set One, Request No. 9) is also not privileged, and this objection is nonsensical. These responses must be further supplemented. Cc Incomplete and Evasive Responses Requiring Supplementation The following special interrogatory responses should all be further supplemented on the basis that the responses are incomplete and evasive: August 27, 2023 Page 3 Interrogatory No. 4 — it is improper for Sycomp to evade answering which documents are personal by contending the information is Highly Confidential and this response should be supplemented; Interrogatory No. 5 — this request relates to the RnR business prior to Sycomp hiring Trace3’s employees and the response does not include deal registration numbers or a complete list of customers, or any specific dates for RnR business; Interrogatory No. 6 — this response attempts to limit Sycomp’s build documents to a “Relevant Period” that the Court’s August 7, 2023 Order expressly rejected and therefore this response must be supplemented; Interrogatory No. 9 — Sycomp must respond as to whether it contends that it has any trade secrets concerning RnR; Interrogatory No. 10 — It is not unduly burdensome to respond as to whether any Sycomp employees have visited Trace3’s NorCal RnR labs as part of Sycomp’s business. The Court has ordered Sycomp to respond to this request, and Sycomp is obligated to conduct a reasonable and diligent investigation and inquiry in order to respond; Interrogatory No. 11 — Sycomp must respond as to whether any of its employees have solicited or performed work for the relevant customers, as defined. If there are documents responsive to this request, as Sycomp indicates, where are they? They were not produced. Sycomp should clarify its answer to this response to confirm whether the solicitations and work performed are so numerous that only a production of documents so showing would be manageable; g Interrogatory No. 12 — Sycomp must produce the deals obtained since May 1, as it has indicated it would. Sycomp must also identify how it learned of those opportunities as this information is obviously integral to the claims in this case; Interrogatory Nos. 14, 16, 18 — these requests relate to specific business opportunities and Sycomp must supplement its responses to provide information as to how Sycomp learned of these opportunities and confirm whether documents have been produced as the responses indicated; and Interrogatory No. 17 — this response is evasive and attempts to limit the response based on timing and should be amended. D. Failure to Produce Documents in Response to Special Interrogatories We note that for several responses to special interrogatories, Sycomp states that it “will produce responsive documents” to address or respond to the information requested (see, e.g., Special Interrogatories, Set One, Request Nos. 11, 12, 14, 16, 18, 19) but it appears that no responsive documents have been produced as to these requests. Please advise us promptly: (1) if these documents have been produced and their bates ranges; and (2) if they have not been produced, when they will be produced. Requests for Production of Documents, Set One and Set Two There are a number of problems with Sycomp’s supplemental responses to Trace3’s requests for production. August 27, 2023 Page 4 First, Sycomp generally asserts privilege as to the requests for production but has not provided a privilege log detailing which documents have been withheld on the basis of privilege. A privilege log should be provided immediately, as it was requested as part of the instructions for each set of requests. Second, many responses to the requests for production state that they are “limited to the August 15, 2023 Order.” Sycomp must clarify what information and documents are being withheld on this basis, as this response was included for all of the Requests for Production, Nos. 1-52. Third, Sycomp objects and refuses to produce documents concerning Stacy Thompson where anyone from Trace3 is copied on the email under the false assertion that Trace3 should already have these documents/emails. This is not the case as Trace3 employees stole documents when leaving and then deleted information. Further, claiming that Trace3 has documents and therefore Sycomp won’t produce them is not proper and cannot be the basis for avoiding discovery obligations. Requests for Admission, Set One Responses to Requests for Admission, Nos. 22-24 should be further supplemented. Request Nos. 22-24 concern searches conducted for the misappropriated trade secret and confidential information. Sycomp cannot hide behind an assertion of privilege as to what searches were conducted. The actual searches conducted are not privileged, and if no searches were conducted (at the direction of counsel or otherwise), that should also be stated. Counsel for Sycomp should provide case law supporting the assertion that this information is privileged if Sycomp intends on refusing the provide fulsome responses. Form Interrogatories, Set One Sycomp’s response to Form Interrogatory No. 17.1 does not disclose documents or witnesses and fails to properly state all facts upon which a denial of a request for admission is based. This response should be further supplemented. Continued discovery disputes and failure to provide substantive supplemental responses is costly, time-consuming, and contrary to the instructions and orders from the court. Trace3 should not be forced to file another motion to obtain this court-ordered discovery from Sycomp, and if it is required to do so, it will seek an appropriate sanction. Please respond to this correspondence, provide supplemental responses, and confirm that your production of documents responsive to Trace3’s requests for production, which this Court compelled Sycomp to answer, will be complete no later than Thursday, August 31, 2023 so that the parties can avoid further discovery motion practice, including motions for appropriate relief in connection with Trace3’s forthcoming motion for preliminary injunction. Sincerely, August 27, 2023 Page 5 Aaag? Medan Jeremy B. Merkelson DLA Piper Lip (us) 555 Mission Street, Suite 2400 San Francisco, California 94105-2933 DLA PIPER www.dlapiper.com Jeanette Barzelay jeanette.barzelay@us.dlapiper.com 415.836.2567 415.659.7317 August 30, 2023 JA MAIL NLY Jeremy B. Merkelson, jeremymerkelson@dwt.com Nicole S. Phillis, nicolephillis@dwt.com Davis Right Tremaine LLP Suite 500 East 1301 K Street NW Washington, D.C. 20005-3317 Re: Sycomp’s Response to Trace3’s August 27, 2023 Meet and Confer Letter re Sycomp’s Supplemental Discovery Responses Counsel: We write in response to your meet and confer letter concerning Sycomp’s August 15, 2023 Supplemental Discovery Responses, which you felt the need to send on Sunday morning, August 27, 2023 (the “August 27 Letter”). Please be advised that our office will not respond to (nor will we send) any communications or requests outside of normal business hours unless the matters are truly urgent and time-sensitive in nature. To be sure, Trace3’s August 27 Letter, which raises purported deficiencies in Sycomp’s discovery responses served twelve days earlier, is not an urgent matter justifying the weekend interruption. I The August 27 Letter Mischaracterizes the Current Status of Discovery and Sycomp’s Diligent Efforts to Comply with the Court’s Orders. Before we turn to the specific issues raised in your August 27 Letter, we need to set the record straight as to the status of discovery and push back on the false narrative by Trace3 that Sycomp is improperly “avoiding” responding to the discovery as ordered in the Court’s August 7 and August 15 Orders. The facts. clearly show otherwise. On August 15, Sycomp served substantive responses to Trace3’s 136 written discovery equests, on a seven-day turnaround as ordered. On August 15 and 17, Sycomp served Trace3 with a “first cut” document production of 617 This started, of course, with Trace3 failing for months, despite Sycomp’s urging, to serve a Code-compliant Section 2019.210 trade secret disclosure. The Court found Sycomp’s objections “legally and factually” justified but nonetheless granted Trace3’s motion to compel provided it serve an amended disclosure, which would trigger Sycomp’s seven-day deadline to respond to Trace3’s discovery. The first possible date that Trace3 could have complied with Section 2019.210, thereby allowing it to pursue discovery, was August 8 (given Trace3’s service of the amended disclosure after business hours on August 7). ACTIVE\1602667429.1 DLA PIPER Jeremy B. Merkelson Nicole S. Phillis August 30, 2023 Page Two documents, totaling almost _3,000 pages. These documents consist of all non-privileged documents located on the former Trace3 employees’ Sycomp devices or in their Sycomp email accounts that contain the obviously relevant term “Trace3.” As such, they necessarily would encompass the most directly responsive documents, including any alleged Trace3 trade secret documents that contain the term “Trace3” in the document title or body. Not surprisingly, no such documents were identified. Between August 18 and August 25, Trace3 took five depositions of: (a) all three remaining Individual Defendants (Cordell, Peterson, and Tomcik), (b) Sycomp’s Global VP of Engineering, Saurabh Saxena, and (c) Sycomp’s designated person most qualified (also Mr. Saxena). These depositions were in addition to the cross-examination of third-party Stacy Thompson that Trace3 conducted on July 13. All told, Trace3 used only four documents from Sycomp’s initial production (617 documents) during the depositions. Meanwhile, on August 17, Trace3 filed a baseless ex parte application for reconsideration of the August 15 Order, which Sycomp successfully opposed. In denying Trace3’s ex parte, the Court noted based on Sycomp’s written and oral statements that Sycomp is undertaking a diligent search in response to Trace3’s discovery requests, and that “[w]hether Trace3 will agree the search was ‘diligent’ is a question for another day.” 8/22 Order (emphasis added). On August 25, we confirmed on the record during the PMQ deposition that whatever documents Sycomp reasonably can produce before Trace3’s PI motion deadline will be produced. See PMQ Rough Tr. at 53:4-24. Just this morning, we produced an additional 5,510 documents totaling almost 15,000 pages. Trace3 now claims that certain of Sycomp’s supplemental responses are inadequate and demands near- immediate supplementation/completion, but Trace3 waited twelve days before raising a single alleged deficiency in any of Sycomp’s responses, after all of the depositions were concluded. Even more telling, Trace3 did not ask Sycomp’s PMQ a single question about Sycomp’s supplemental discovery responses, did not use Sycomp’s discovery responses as exhibits during any of the depositions including the PMQ, and asked the PMQ designee questions about just one Sycomp-produced document. Trace3’s demand that Sycomp supplement dozens of its responses, “immediately” produce a privilege log, and “confirm” that its document production in response to 52 RFPs and a number of related interrogatories “will be complete” by August 31, 2023—i.e., in just three business days—is improper, unreasonable, and inconsistent with the realities of expedited discovery. To be sure, no law or Court order allows Trace3 to unilaterally demand that Sycomp further supplement its discovery responses, let alone on a three-day turnaround. And the Court plainly did not order Sycomp to complete its document production by any date certain or even before Trace3’s PI motion filing deadline. Rather, as the Court made clear at the August 10 hearing, the 5/23 Order contemplated that “both sides would have some discovery’—i.e., not all. See 8/10 ACTIVE\1602667429.1 DLA PIPER Jeremy B. Merkelson Nicole S. Phillis August 30, 2023 Page Three Tr. at 18:19-19:8; see also id. at 39:14-40:10 (Court suggesting ways to narrow requests so Trace3 could get “some documents or [] get some information”) (emphases added). In fact, the Court made clear that Trace3 would not get all of the discovery from Sycomp before its extended September 6 PI motion deadline, which you expressly acknowledged and accepted: You understand, THE COURT: I think, that you will unlikely get all the discovery you seek before you have to file your opening brief, right? Now, what I don't want is a situation where the day before the opening brief is due, you file another Ex Parte application saying, "We didn't get this. We didn't get that." MR. MERKELSON: ‘There is no perfect world. We understand that right now, but we need -- we need ‘something. We've made that request. We'll see what we get. But I think it's our view that as long as we get the core of what we are looking for, we're not going to try to push this out any longer It's not in our interest to do that, frankly. See 8/10 Tr. at 6 :13-7:1 (emphasis added). Your August 27 Letter is patently unreasonable and flies in the face of these prior statements. The unreasonableness of Trace3’s position and unilateral demands is underscored by Trace3’s own discovery deficiencies and chosen litigation strategy. Trace3 still has not provided Code-compliant responses to the discovery Sycomp served at the end of May and has produced fewer documents than Sycomp, by orders of magnitude. What has been produced is at best ancillary to the core factual issues raised by Sycomp’s requests, as it consists mostly of standard policy documents, employee personnel files and on-boarding/off-boarding materials, reproduction of documents attached to Trace3’s filings, and/or ACTIVE\1602667429.1 DLA PIPER Jeremy B. Merkelson Nicole S. Phillis August 30, 2023 Page Four reproduction of the Kopelev exhibits or Trace3 TS/CI file name listings. Importantly, Trace3 still has not re ‘oduced any of the alleged trade secret documents or the compilation that it claims are its trade secrets, and it still has not produced a Code-compliant response to Sycomp’s SI 1 and follow-on interrogatories asking Trace3 to identify its trade secrets and provide the factual bases for that assertion as to each alleged trade secret. To be sure, Sycomp will move to compel on these and other issues at the earliest opportunity. At the same time, Trace3 has elected to forego certain discovery as part of its chosen litigation strategy. This includes all of the discovery Trace3 initially served on the Individual Defendants, as to which Trace3 did not timely move to compel (and which it is now improperly seeking through the back door under the guise of “remediation” and/or additional discovery requests seeking the same information). The only non- party subpoena Trace3 served was on its former employee, Stacy Thompson, after she was subpoenaed by Sycomp and Trace3 was permitted to cross-examine her. In sum, Trace has received substantive responses from Sycomp to 136 requests; Trace3 has received over 6,000 responsive documents; and Trace3 has taken six depositions, including of Sycomp’s PMQ. We know Sycomp’s discovery responses and document production do not provide the evidence Trace3 needs to support its claims, including its PI motion. But that does not mean Sycomp is “avoiding” discovery or that its responses are deficient. I. Sycomp’s Supplemental Responses Are Sufficient and Do Not Require Supplementation, Let Alone on Trace3’s Rushed Timeline. Turning now to the specific requests and issues outlined in your August 27 Letter, the majority of Trace3’s issues appear targeted at improperly invading privileges or else appear to take issue with the substance of Sycomp’s responses because they are unhelpful to Trace3’s case. We address each of your issues below. a Sycomp’s privilege and work product objections are valid, and Trace3’s continued efforts to invade privilege are improper. Trace3 claims Sycomp’s attorney-client privilege and work product objections—objections the Court expressly authorized—are improper because Trace3 “disagrees” that information regarding Sycomp’s. investigation of Trace3’s claims during and in anticipation of litigation is privileged. August 27 Letter at 2. Trace3’s continued attempts to invade Sycomp’s and its counsel’s privileges—including by badgering Again, Trace3’s production is even smaller than it appears on its face. Of the 578 documents produced, 127 documents are exact duplicates that have been produced twice—once with one Bates number, and a second time with both the original Bates number and a second Bates number overlaid on top. Trace3’s “subpoena” on Saurabh Saxena, Sycomp’s Global VP of Engineering, was not a proper subpoena because Mr. Saxena is subject to deposition pursuant to a standard deposition notice. See Code Civ. Proc. § 20