Preview
9/9/2022
1 Collin J. Vierra (State Bar No. 322720)
EIMER STAHL LLP
2 99 Almaden Blvd., Suite 641
San Jose, CA 95113-1605
3 Telephone: (408) 889-1668
4 Email: cvierra@eimerstahl.com
5 Attorney for Plaintiffs
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
8
9
Robert Arntsen; Mary Lee; Arntsen Family Case No. 22-CIV-01148
10 Partnership, LP; and Brian Christopher Dunn
Custodianship; Date: September 16, 2022
11 Time: 9:00am
12 Plaintiffs, Dept. 21
v.
13 Hon. Robert D. Foiles
David M. Bragg; Kurtis Stuart Kludt; Silicon
14 Valley Real Ventures LLC; SVRV 385 REPLY IN SUPPORT OF MOTION TO
Moore, LLC; SVRV 387 Moore, LLC; COMPEL AND FOR SANCTIONS
15 Gregory J. Davis; Kevin Wolfe; James AGAINST DEFENDANTS DAVID M.
16 Justesen; Paramont Woodside, LLC; and BRAGG, KURTIS S. KLUDT, AND
Paramont Capital, LLC; SILICON VALLEY REAL VENTURES,
17 LLC, AND ATTORNEY RYAN VAN
Defendants. STEENIS
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REPLY IN SUPPORT OF MOTION
1 INTRODUCTION
2 Plaintiffs’ counsel candidly admits that he overlooked the requirement in this Court’s Local
Rules to schedule an informal discovery conference (IDC) prior to filing a discovery motion.
3
Plaintiffs’ counsel consulted a pre-2021 version of the Local Rules he had used in a previous case,
4
which did not include the IDC provision. He will not make that mistake again. As soon as
5 Plaintiffs’ counsel was apprised of this oversight, he reached out to the IDC clerk to see if a
6 conference could be scheduled before the hearing. Unfortunately, the Commissioner is not
7 available until several weeks after the hearing, and Plaintiffs have requested an IDC for the
8 Commissioner’s earliest availability, currently September 27, 2022. (Reply Decl. ¶¶ 4–8 & Ex. 1.)
Although this Court could postpone the hearing on Plaintiffs’ Motion until after the IDC, it would
9
be appropriate to waive that requirement here because the issues presented in Plaintiffs’ Motion
10
are not likely to be resolved by an IDC.
11
Aside from pointing out the IDC issue, Defendants’ arguments in opposition to Plaintiffs’
12 Motion are meritless. For example, Defendants Bragg and SVRV (hereinafter, collectively
13 “Bragg”), and their counsel (Mr. Van Steenis), accuse Plaintiffs of running to Court if Defendants
14 do not immediately do exactly as Plaintiffs’ counsel demands. (Bragg Opp. at 2.) But they neglect
to disclose that, until Plaintiffs submitted this Motion, neither Defendant had produced a single
15
document even though their responses to Plaintiffs’ First Set of discovery requests were due in
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June and even though Plaintiffs have offered to shoulder the costs normally associated with
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downloading and producing documents if Defendants would simply provide access to plainly
18 relevant Google Drive folders. (Mot. at 15:20–22; 7:13–19.) As Plaintiffs learned from third-party
19 discovery (from Bragg’s brother, who promptly produced documents after being served), Bragg
20 waited until after Plaintiffs filed this Motion to seek “some logistical help with Gmail on how I
can make a file that I can forward a bunch of emails to for Discovery.” (Reply Decl. Ex. 17.) In
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short, this Motion was plainly necessary to spur Bragg into action.
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Defendant Kludt’s counsel, Mr. Poe, similarly accuses Plaintiffs’ counsel of being “hyper-
23
aggressive” (Kludt Opp. at 1), but he does not dispute that Kludt has repeatedly refused to produce
24 hundreds of plainly responsive documents contained in Defendants’ Google Drive accounts that
25 Plaintiffs have specifically identified, even though Kludt does not contest the relevance of these
26 documents and Plaintiffs have offered to undertake the burden of downloading, Bates-stamping,
27 and producing them in PDF to all parties. As of today, Kludt is still withholding indisputably
responsive documents from his counsel. (Reply Decl. ¶ 26.)
28
2
REPLY IN SUPPORT OF MOTION
1 Instead of raising colorable objections—which is something that might be resolved at an
2 IDC after the parties have met and conferred about those objections—Defendants first pretended
that none of these documents existed, and then, when Plaintiffs’ counsel identified specific Google
3
Drive folders where responsive documents are located (but many of which Plaintiffs cannot
4
access), 1 Defendants simply ignored Plaintiffs’ counsel’s repeated requests for access to those
5 folders. And both Defendants have now represented that their productions are complete even
6 though they have not produced—or even objected to the production of—numerous responsive
7 documents that can be provided to Plaintiffs with the click of a button.
8 And contrary to Defendants’ outrageous claim that Plaintiffs’ counsel failed to meet and
confer about the subject of this Motion, Plaintiffs have attempted for months to meet and confer
9
with Defendants about their deficient productions, yet Defendants have repeatedly declined
10
Plaintiffs’ invitations to meet and confer about these issues. As Plaintiffs’ counsel has
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demonstrated in his dealings with the Paramont Defendants, he does not rush to court at the first
12 provocation. Like Bragg and Kludt, the Paramont Defendants failed to timely respond to Plaintiffs’
13 first set of discovery requests. Plaintiffs granted them a 10-day extension to July 6, 2022 (the same
14 extension granted to Kludt), but when the Paramont Defendants made their first document
production and served their first responses to discovery they were highly deficient. Plaintiffs’
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counsel therefore requested a meet and confer, which the Paramont Defendants’ counsel accepted.
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(Reply Decl. Ex. 2.) The parties met and conferred, and Paramont Defendants’ counsel agreed to
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supplement their discovery responses by August 1, 2022. Due to computer issues and personal
18 needs, as responses came due, Paramont Defendants’ counsel requested a two-week extension to
19 supplement the Paramont Defendants’ discovery responses. Plaintiffs’ counsel immediately
20 granted the request. As to one specific issue—the Paramont Defendants’ failure to preserve many
email attachments—Plaintiffs’ counsel even gave Paramont Defendants’ counsel advanced notice
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that he would be propounding a special interrogatory seeking further details about this unusual
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circumstance. (Reply Decl. Ex. 5.) The Paramont Defendants fulfilled their discovery obligations
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by answering this interrogatory in appropriate detail in a timely manner. Although Plaintiffs are
24 still addressing some outstanding discovery issues with the Paramont Defendants, no motion to
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1
Kludt initially produced 23 documents in response to Plaintiffs’ first set of RFPs, and when Plaintiffs’ counsel
27 notified him that this production was woefully incomplete, Mr. Poe responded with a condescending email noting that
young attorneys often “just know” there must be more documents than those produced even though no such documents
28 exist. Plaintiffs’ counsel then showed Mr. Poe numerous Google Drive folders containing relevant documents,
including one folder whose contents were still public (and thus mostly visible to Plaintiffs) and which should have
been, but were not, produced. (Mot. Decl. Ex. 3.)
3
REPLY IN SUPPORT OF MOTION
1 compel has been necessary because the Paramont Defendants have taken their discovery
2 obligations seriously and their counsel has been willing to engage in the meet-and-confer process.
Plaintiffs’ counsel has attempted to use the same collaborative process with Bragg and Kludt, but
3
they have made any such good-faith negotiations impossible by refusing to respond to Plaintiffs’
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communications regarding their manifestly deficient (or non-existent) productions.
5 Defendants also imply that Plaintiffs’ discovery requests—including third-party discovery
6 requests—have been excessive. (Kludt Opp. at 2; Bragg Opp. at 4.) Much of that discovery could
7 have been avoided had Defendants produced documents as required, but the documents Plaintiffs
8 have obtained from the Paramont Defendants and third parties have demonstrated time and again
that Kludt and Bragg are withholding responsive documents. For example, Plaintiffs learned from
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productions by the Paramont Defendants that Kludt and Bragg were withholding numerous Google
10
Drive folders containing responsive documents, and Plaintiffs obtained hundreds of responsive
11
text messages from Colleen Marchbank (the broker who sold the Moore Road properties)
12 involving Bragg or Kludt that neither Defendant has produced. (Reply Decl. ¶ 27). Some third-
13 party productions have also revealed additional misconduct related to the merits of the claims,
14 which prompted additional discovery requests to Bragg and Kludt. For example, Plaintiffs
obtained financial records from First Republic Bank showing improper transfers from the Moore
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Road LLCs to Kludt, and loan agreements from Bragg’s brother showing that he extended credit
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to the Project in exchange for an interest in the Project that was never disclosed to Plaintiffs. (Id.)
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Finally, Kludt and Bragg seem to imply that Plaintiffs’ discovery requests—and this
18 Motion—are improper because this is a “small” matter. (Kludt Opp. at 2; Bragg Opp. at 4.) But
19 that is not a proper ground for avoiding valid discovery requests, and the alleged “smallness” of
20 the case militates in favor of prompt discovery, as this case does not involve dozens of custodians,
decades’ worth of records, thorny privilege issues, or complex ESI protocols. In all events, this is
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no small matter for Plaintiffs, senior citizens whom Bragg and Kludt defrauded and/or unlawfully
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deprived of more than $750,000.
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REPLY TO KLUDT
24 Meet and Confer Efforts
25 Kludt’s suggestion that Plaintiffs’ counsel routinely threatens sanctions unless he
26 “immediately” gets his way is baseless. (Kludt Opp. at 1). So is his claim that Plaintiffs have failed
27 to resolve their discovery disputes through the meet-and-confer process. (Id.) To the contrary,
Plaintiffs brought this motion after Kludt failed to produce indisputably responsive documents for
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two months after his responses to Plaintiffs’ First Set of RFPs were due, and after Plaintiffs
4
REPLY IN SUPPORT OF MOTION
1 repeatedly offered to meet and confer only to be met with silence. Plaintiffs offered to meet and
2 confer with Kludt on July 18, 2022 (“I remain happy to discuss [Kludt’s production of responsive
Google Drive documents] further at your convenience.”), twice on August 5, 2022 (“As always, I
3
remain available to meet and confer to address any reasonable concerns about the scope or timing
4
of discovery[,]” and, “As I have said before, I do not wish to engage in needless motion practice,
5 and I certainly prefer not to have to draft a[] motion to compel (much less a sanctions motion). I
6 thus remain, as happy as ever, to meet and confer to discuss Kludt’s discovery obligations . . . . I
7 am available to discuss next week at your convenience. Please let me know when you are
8 available[.]”), August 8, 2022 (“I would be happy to explain [Google Drive] to you further
including by arranging a Zoom call with you[.]”), August 10, 2022 (“I still remain available to
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have a Zoom meeting to explain why [it] is necessary and appropriate [for Kludt to share
10
responsive Google Drive documents] and should not impose a burden on Defendants.”), and
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August 11, 2022 (CC’ing Mr. Poe while responding directly to Van Steenis, “I have been ready
12 and willing to meet and confer with all Defendants’ counsel throughout this process.”). (Mot. Decl.
13 Exs. 8, 9, 11; Reply Decl. Exs. 6, 8, 9.) Kludt (and his counsel) may believe that they can ignore
14 Plaintiffs’ discovery requests because the case is “small” and Plaintiffs’ counsel is relatively
young, but they cannot with a straight face accuse Plaintiffs of failing to seek an opportunity to
15
meet and confer.
16
Indeed, on August 29, 2022, Mr. Poe incorrectly claimed that Plaintiffs “didn’t meet and
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confer with me about any of the issues presented in [Plaintiffs’] motion.” Mr. Poe said he would
18 probably begin working on his Opposition to the Motion on August 31, 2022. Plaintiffs responded
19 less than an hour later, stating in relevant part:
20 “[W]e met and conferred about these exact issues on July 14, 2022, after
my detailed email of July 10, 2022. I have offered to meet and confer several
21 additional times since then. And I still remain available to meet and
confer—including today or tomorrow—about these issues. If we can
22 resolve these issues without a motion, I will be happy to withdraw the
23 motion as to Kludt. Indeed, I would prefer to resolve these issues without
having to engage in further briefing on them. But Plaintiffs still lack access
24 to relevant documents the links to which they have discovered and shared
with Kludt—to say nothing of relevant documents that Plaintiffs can infer
25 exist but links to which they have not directly located. Once again, Kludt
can provide access to these materials in seconds.”
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Mr. Poe did not respond. Two days later, Plaintiffs’ counsel emailed Mr. Poe again,
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informing him that Bragg’s first production (made on August 29, 2022) revealed that Kludt had
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withheld additional responsive Google Drive documents and email communications (once again,
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REPLY IN SUPPORT OF MOTION
1 documents that Kludt does not contest are responsive). 2 Plaintiffs’ counsel again said that he
2 “remain[ed] available to meet and confer.” Again, Mr. Poe did not respond. 3 (Reply Decl. Ex. 14.)
On September 2, 2022, Mr. Poe sent an email that ignored Plaintiffs’ offer to meet and
3
confer but instead questioned the evidentiary basis for certain allegations in the Amended
4
Complaint. Plaintiffs’ counsel promptly responded, pointing to evidence supporting the allegations
5 and again stating: “I would be happy to discuss any of these points further and suggest a call on
6 Tuesday to discuss this issue and any other outstanding issues where we might make progress.”
7 (Reply Decl. Ex. 15.) As usual, Mr. Poe did not respond.
8 In short, the central issue that prompted this Motion is that Kludt and Bragg possess
numerous documents that they do not dispute are relevant and responsive to Plaintiffs’ discovery
9
requests, yet they refuse to produce them, even though they can be produced in seconds. And while
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Plaintiffs have raised these issues numerous times and sought to meet and confer about them,
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Defendants’ counsel has repeatedly refused to engage. There is no excuse for this abuse of the
12 discovery process, and Kludt and Bragg offer none.
13 Kludt’s Productions
14 Kludt made his second production in response to Plaintiffs’ First Set of RFPs on August
23, 2022, after Plaintiffs submitted this Motion. That production was due June 27, 2022. In making
15
that production, Mr. Poe wrote that this constituted the “remainder” of Kludt’s production. (Reply
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Decl. Ex. 11.) Yet in addition to the documents Plaintiffs have repeatedly requested and which
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Kludt has declined to produce, Plaintiffs have recently discovered additional responsive
18 documents Kludt is withholding, and have shared that evidence with Mr. Poe. (Reply Decl. Ex.
19 14.) Kludt does not contest that the documents Plaintiffs have identified—or the documents they
20 reference—are responsive. But he still refuses to produce them.
Kludt also misleading suggests that he has produced responsive documents from Google
21
Drive to Plaintiffs. (Kludt Opp. at 2.) But the only folders Kludt has “shared” with Plaintiffs are
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those that Plaintiffs obtained elsewhere and sent to Mr. Poe. First, Plaintiffs shared the “Moore
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Rd Woodside” folder with Mr. Poe on July 10, 2022, to demonstrate that Kludt undoubtedly
24 possessed numerous responsive documents that he had not produced. (Mot. Decl. Ex. 3.) Kludt did
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One of these documents contained notes by Kludt about the Moore Road Project that refer to additional facially
27 responsive folders on Kludt’s computer that he has not produced. (Reply Decl. Ex. 25.)
3
While Plaintiffs’ counsel accepts responsibility for missing the IDC requirement, neither Mr. Poe nor Van Steenis
ever raised it before filing their Oppositions, although they had ample opportunities to do so before beginning work
28 on their Oppositions.
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REPLY IN SUPPORT OF MOTION
1 not even give his own counsel access to those materials until August 5, 2022. (Mot. Decl. ¶ 20.)
2 Kludt then “re-shared” this folder with Plaintiffs on August 8, 2022. 4 (Reply Decl. Ex. 8.) Second,
Plaintiffs obtained two more of Kludt’s Google Drive folders containing responsive documents on
3
August 29, 2022, and then shared those folders with Mr. Poe. (Reply Decl. Ex. 14.) Kludt then
4
“re-shared” these folders with Plaintiffs so that, as they had done with the “Moore Rd Woodside”
5 folder, Plaintiffs could incur the cost of downloading, processing, Bates-stamping, and circulating
6 the documents for Kludt.
7 Put simply, Kludt has not shared a single Google Drive folder that Plaintiffs did not
8 specifically identify for Mr. Poe. And Kludt still has not produced many of the Google Drive
documents that Plaintiffs have identified. (Reply Decl. ¶ 28 & Ex. 24.) Indeed, the metadata visible
9
on these Google Drive folders indicate that Kludt has not even shared these documents with his
10
own counsel. (Reply Decl. ¶ 26 & Ex. 18.)
11
Kludt is also withholding relevant communications—both emails and text messages—that
12 Plaintiffs have requested. Plaintiffs’ RFP 14 to Kludt sought “all non-privileged Communications
13 between You and any other Defendant in this Action relating to this litigation or any aspect thereof,
14 including without limitation service, procedure, discovery, evidence, strategy, trial, damages, or
judgment.” Contrary to Kludt’s insinuation (Kludt Opp. at 4), Kludt objected to that RFP in its
15
entirety. (Reply Decl. Ex. 7.) Plaintiffs sent an email explaining that Kludt’s objection was
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unwarranted. In his opposition, Kludt attached his response to that email (Kludt Opp. at 4–5), but
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he misleadingly omitted Plaintiffs’ reply, which further explained why Kludt’s objection was, in
18 fact, meritless. (Reply Decl. Ex. 6.) Kludt thereafter produced several documents in response to
19 this RFP, thereby tacitly conceding that the blanket objection was improper. (Mot. at 13:7–17.) Of
20 course, as has been the case with Kludt’s responses throughout this litigation, he did not produce
all documents responsive to this request. To take but one example, although Kludt shared with
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Bragg the Google Drive folder containing the cherry-picked documents that he shared with
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Plaintiffs’ counsel before retaining Mr. Poe, Kludt has not produced any communication in which
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he shared that folder with Bragg.
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25 4
When he finally “reshared” this folder with Plaintiffs (which, as mentioned, Plaintiffs had shared with Kludt nearly
a month earlier), Kludt’s counsel baselessly accused Plaintiffs’ counsel of violating state and federal criminal law by
26 accessing these publicly available documents. In fact, this was the second time Mr. Poe made this baseless
accusation—and this time he CC’ed Mr. Van Steenis and the counsel for the Paramont Defendants. Mr. Poe first made
27 this accusation on the parties’ July 14, 2022 meet and confer, and Plaintiffs’ counsel immediately explained why this
accusation was unfounded—namely, because these were public documents accessible by anyone with an Internet
28 connection. Indeed, in Plaintiffs’ counsel’s July 10, 2022, email identifying these documents, Plaintiffs’ counsel wrote
explicitly that this folder “is public.” (Reply Decl. Ex. 8; Mot. Decl. Ex. 3.) Yet this did not stop Mr. Poe from making
this baseless accusation again and in writing.
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REPLY IN SUPPORT OF MOTION
1 Plaintiffs provide, as Attachment 1, a table setting forth Plaintiffs’ pending RFPs for which
2 there is evidence that Kludt is withholding responsive documents.
Relief Sought
3
Kludt contends that Plaintiffs should have asked him for the exact relief they seek from the
4
Court. (Kludt Opp. at 3.) That is not what is required by a meet and confer. All that is required is
5 that the parties meet and confer about the “issue[s]” in dispute. (CCP § 2016.040.) They have done
6 that—and Kludt has refused to respond to each of Plaintiffs’ subsequent meet and confer requests.
7 In their Motion, Plaintiffs requested the relief that they believe is best tailored to address Kludt’s
8 myriad discovery abuses. Kludt is refusing to produce responsive documents even to his own
counsel—let alone Plaintiffs—despite the fact that he does not contest the relevance of the
9
withheld documents. Therefore, Kludt should no longer be allowed to self-collect documents, but
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instead should be compelled to turn over all known sources of relevant documents to his counsel,
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who will then bear the responsibility of reviewing and producing documents responsive to
12 Plaintiffs’ RFPs. Contrary to Kludt’s suggestion, Plaintiffs have not propounded a blanket request
13 for “all relevant materials.” (Kludt Opp. at 2–3.) They are merely asking for an order directing
14 Kludt to provide his counsel with all potentially relevant documents—including the Google Drive
folders Plaintiffs have specifically identified and communications with Bragg—so that Kludt’s
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counsel can review and produce documents responsive to Plaintiffs’ RFPs. Thirty days is a
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reasonable time to comply with this request. 5 Indeed, that is the amount of time parties normally
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have to respond to discovery requests. And Kludt’s productions were due months ago.
18 REPLY TO BRAGG, SVRV, AND VAN STEENIS
19 Meet and Confer Efforts
20 In the past three months, Mr. Van Steenis has agreed to one meet-and-confer offer—on
July 18, 2022. And he then refused to follow through on the promises he made during that lone
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meet and confer. Since that time, he has declined to accept any of Plaintiffs’ numerous meet-and-
22
confer offers, including on August 5, 2022 (“I remain available to meet and confer to address any
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reasonable concerns about the scope or timing of discovery.”) and twice on August 11, 2022 (“If
24
25 5
Kludt’s and Bragg’s argument that Plaintiffs are unreasonably demanding that Kludt and Bragg give Plaintiffs
“exactly what [they] demand[], exactly when [they] want[] it done” in an “unspecified time frame” is absurd. (Kludt
26 Opp. at 1; Bragg Opp. at 2.) First, Plaintiffs sought information about their lost loans and investments for a year and
a half before initiating this action, but Kludt and Bragg refused to provide that information or even respond to most
27 of those requests. Second, in March 2022, Kludt contacted Plaintiffs’ counsel and asked to be dismissed from the case
and promised that he would share the numerous relevant materials in his possession. He ultimately declined to do so,
28 but he was clearly on notice that Plaintiffs would request these documents in discovery. Third, Defendants were
obligated under the Code of Civil Procedure to respond to Plaintiffs’ discovery requests in the time allotted, and that
deadline passed two-and-a-half months ago.
8
REPLY IN SUPPORT OF MOTION
1 for any of these requests, you have concerns about the scope of the request, I am available to meet
2 and confer[,]” and, “I have been ready and willing to meet and confer with all Defendants’ counsel
throughout this process.”). (Mot. Decl. Exs. 9, 33; Reply Decl. Ex. 10.) Plaintiffs also reiterated
3
that they “continue to be available to meet and confer” on August 24, 2022. (Reply Decl. Ex. 12.)
4
Mr. Van Steenis has refused to accept any of those invitations. Plaintiffs have also sought to follow
5 up on Mr. Van Steenis’s promises to respond to discovery numerous times only to be met with
6 silence. (See Mot. at 15:22–19:19.) Mr. Van Steenis points to a single August 11, 2022 email in
7 which he stated that he would “respond to each point you raise below.” (Bragg Opp. at 8.) But he
8 did not respond to those points until filing his Opposition (even then, he did not address several of
Plaintiffs’ points) and he still refuses to meet and confer.
9
Mr. Van Steenis’s modus operandi has been to ignore filing deadlines, discovery deadlines,
10
and emails from Plaintiffs’ counsel. He did not file an answer to the complaint; he did not respond
11
to Plaintiffs’ request for a default against Bragg and SVRV (which was granted); and he has failed
12 to respond to several dozen emails over the past three months, including regarding his clients’
13 complete failure to respond to Plaintiffs’ discovery requests. The only thing that has prompted a
14 response from him throughout this litigation is the specter of personal sanctions. For example, Mr.
Van Steenis did not respond to any of twenty-nine emails sent to or from Plaintiffs’ counsel or
15
Defendants’ counsel on which he was included in early July. (Reply Decl. ¶ 11 & Ex. 3.) He first
16
responded only after Plaintiffs’ counsel suggested that his conduct may be sanctionable. (Mot.
17
Decl. Ex. 25.) Mr. Van Steenis tries to excuse his failure to respond by saying that Plaintiffs’ July
18 6, 2022 email got caught in his “junk” folder, and that he emailed his client to say, “Send what you
19 need to send the lawyer . . . . Follow up with a phone call and tell counsel to call me before filing
20 the ex parte application.” (Bragg Opp. at 6.) But Mr. Van Steenis cannot credibly claim that
although twenty-nine emails were caught in his junk folder, the thirtieth email raising the
21
possibility of personal disciplinary action just happened to make it through the filter. Further,
22
despite telling Bragg to call Plaintiffs’ counsel, Bragg never called.
23
Bragg’s Productions
24 Although Bragg’s Opposition claims that he has produced documents, Bragg did not make
25 his first production until August 29, 2022—six days after Plaintiffs submitted this Motion.6 In
26 making that production, Mr. Van Steenis wrote, “These are the links to various documents Mr.
27 Bragg sent me that he has represented represents either everything or close to everything related
28
6
Notably, prior to Plaintiffs filing this Motion, Mr. Van Steenis refused to state whether he would respond to any of
Plaintiffs’ First Set of discovery requests, including by producing documents.
9
REPLY IN SUPPORT OF MOTION
1 to the Moore Road project that would be responsive to your document requests.” (Reply Decl. Ex.
2 16.) Yet this production is nowhere near complete. For example, the Paramont Defendants and
third parties have produced numerous communications with Bragg responsive to Plaintiffs’ RFPs
3
that Bragg failed to produce. And the productions from the Paramont Defendants do not let Bragg
4
off the hook because, as Mr. Van Steenis knows, the Paramont Defendants did not retain
5 attachments to emails, and therefore in many cases Bragg is the only person in possession of
6 indisputably relevant attachments. (Reply Decl. ¶ 29; Reply Decl. Ex. 13.) And those emails are
7 likely but a small slice of the responsive communications that Bragg has thus far failed to produce.
8 Because Bragg and his counsel cannot be trusted to locate Bragg’s responsive documents, Bragg
should be required to provide Plaintiffs with direct access to all Google accounts containing
9
potentially responsive documents, and to turn over all relevant communications.
10
Bragg’s Opposition makes several arguments regarding his objections to Plaintiffs’
11
specific discovery requests. However, this is the first time Bragg has provided any such arguments
12 in defense of his objections, despite Plaintiffs’ numerous requests to meet and confer about the
13 objections. Plaintiffs address each of Bragg’s objections in Attachment 2.
14 MR. POE’S AND VAN STEENIS’S REQUESTS FOR SANCTIONS
While Plaintiffs’ counsel admits his error in consulting an outdated version of the Rules,
15
sanctions against Plaintiffs are not justified. Code of Civil Procedure section 2023.020 provides
16
for the imposition of sanctions for failing “to confer.” While Plaintiffs’ counsel erred in not initially
17
seeking an IDC, Plaintiffs’ counsel has met and conferred with Messrs. Poe (on July 14, 2022) and
18 Van Steenis (on July 18, 2022) about the issues in this Motion, and he has sought to meet and
19 confer with Messrs. Poe and Van Steenis numerous times since. Indeed, when made aware of his
20 mistake, Plaintiffs’ counsel promptly sought to schedule an IDC with Defendants in the event this
Court decides not to waive the requirement. True to form, however, Messrs. Mr. Poe and Van
21
Steenis refused to respond to the IDC clerk regarding their availability for an IDC. (Reply Decl.
22
Ex. 1.) It would be improper to impose sanctions for a good-faith mistake that Plaintiffs have
23
promptly attempted to rectify, especially given Defendants’ continued lack of cooperation.
24 Sanctions would also be unjust because Messrs. Mr. Poe and Van Steenis could have
25 avoided drafting their Oppositions entirely if they had informed Plaintiffs’ counsel of the IDC
26 provision—rather than waiting to raise it for the first time in their Oppositions. Had they done so,
27 Plaintiffs’ counsel could have withdrawn the Motion and/or sought to ensure, by stipulation or
otherwise, that Kludt and Bragg would not have to file an Opposition until and unless the parties
28
had an IDC that did not resolve the issues in question. (Reply Decl. ¶ 7.) Plaintiffs’ counsel has
10
REPLY IN SUPPORT OF MOTION
1 repeatedly sought to avoid imposing costs on Defendants, including by producing Google Drive
2 documents for them, waiving certain statutory requirements, and drafting and filing a protective
order requested by Defendants. (Reply Decl. Ex. 4.) Indeed, four days before Kludt and Bragg
3
filed their Oppositions (and two days before Mr. Poe even began drafting his Motion), Plaintiffs’
4
counsel said he would be willing to withdraw the Motion as to Kludt if the parties could resolve
5 their dispute by a simple meet and confer. Plaintiffs’ counsel offered to meet and confer again two
6 days later. (Reply Decl. Ex. 14.) But Mr. Poe never responded.
7 PLAINTIFFS’ REQUEST FOR SANCTIONS SHOULD BE GRANTED
8 Plaintiffs have sought to meet and confer about Kludt’s, Bragg’s, and SVRV’s discovery
deficiencies numerous times only to be met with silence. Plaintiffs have spent many hours, and
9
incurred substantial costs, tracking down documents that Kludt, Bragg, and SVRV have unlawfully
10
withheld, and presenting that evidence to Messrs. Poe and Van Steenis. (Reply Decl. ¶ 27.)
11
“Failing to confer” or “to respond to an authorized method of discovery” are “misuses of the
12 discovery process” that justify sanctions. 7 (CCP §§ 2023.010, 2023.030.) Kludt, Bragg, and SVRV
13 have repeatedly done both. And Mr. Van Steenis has demonstrated that he will only respond to
14 Plaintiffs’ counsel under threat of personal sanctions. Sanctions against Kludt, Bragg, SVRV, and
Mr. Van Steenis are therefore necessary to curb their misconduct.
15
CONCLUSION
16
Plaintiffs respectfully request that the Court keep this hearing on the calendar, compel
17
Kludt, Bragg, and SVRV to comply with their discovery obligations, and issue the requested
18 sanctions against Kludt, Bragg, SVRV, and Mr. Van Steenis.
19
20 Dated: September 9, 2022 By: ______________________
21 Collin J. Vierra
EIMER STAHL, LLP
22
Attorney for Plaintiffs
23
24
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27 7
Bragg and SVRV, in particular, have also made “without substantial justification, [] unmeritorious objection[s] to
discovery” and “evasive response[s] to discovery.” (CCP § 2023.010.) To take just one example, they have refused
28 to answer SRog 12 regarding the remuneration Bragg received from the Moore Road Project, and Mr. Van Steenis
has refused to answer Plaintiffs’ invitations to meet and confer to discuss the scope of the request. (Attachment 2;
Mot. at 17:10–19.)
11
REPLY IN SUPPORT OF MOTION
1 ATTACHMENT 1
2 Requests for Production Plaintiffs’ Contentions
RFP 1: “All Communications between You and (1) Kludt claims his productions in response
3 the Plaintiffs and (2) anyone affiliated with Silicon to this RFP are complete, yet Kludt is
4 Valley Real Ventures, LLC relating to Plaintiffs’ withholding documents responsive to this
investments with Silicon Valley Real Ventures, RFP. For example, text messages
5 LLC between January 1, 2012 and the present.” produced by Colleen Marchbank show
that Kludt communicated with her about
6 Plaintiffs’ investments. Yet Kludt did not
produce those messages. Further, except
7 for in response to Kludt’s RFP 14 and
8 Bragg’s/SVRV’s RFP 12, neither Kludt
nor Bragg has produced any text message
9 between each other unless third parties
were also part of the text message group.
10
RFP 2: “All Communications relating to the Kludt claims his productions in response
11 Project between You and any third parties involved to this RFP are complete, yet Kludt is
12 with the Project, including but not limited to real withholding documents responsive to this
estate agents, realtors, brokers, loan officers, RFP. For example, text messages
13 lending agents, engineers, architects, landscape produced by Colleen Marchbank show
architects, inspection officers or agencies, and that Kludt communicated with her about
14 permitting officials or agencies.” the Project. Yet Kludt did not produce
those messages. As another example,
15 Kludt told Plaintiffs’ counsel that he
16 orchestrated the Genesis loan for the
Project by communicating with a personal
17 connection at Genesis. Yet those
communications have not been produced.
18
RFP 3: “All Communications with any members of After initially objecting to this RFP
19 the Geyer family relating to the Project.” outright, Kludt indicated he would amend
20 his response, but he still has not done so,
even though it was due on June 27, 2022.
21 While Kludt has produced some
documents responsive to this RFP, it is not
22 clear if he is actually responding to this
RFP, or if he produced those documents
23 only because they were responsive to
24 other RFPs. John Geyer has stated to
Plaintiffs’ counsel that he exchanged
25 written communications with Bragg and
Kludt about the Project.
26
RFP 6: “All financial, accounting, and governance Kludt claims his productions in response
27 Documents relating to Plaintiffs’ investments with to this RFP are complete, yet Kludt is
28 Silicon Valley Real Ventures, LLC between withholding documents responsive to this
January 1, 2012 and the present, including but not RFP. For example, through their own
ATTACHMENTS TO REPLY IN SUPPORT OF MOTION
1 limited to bills, checks, receipts, certificates, investigation. Plaintiffs have discovered
ownership tables, projections, analyses, account numerous Google Drive documents
2 statements, tax records, balance sheets, income responsive to this RFP that Kludt is
statements, cash flow statements, profit or loss withholding. One such example is the
3 statements, investment agreements, operating Effective Operating Agreements
4 agreements, and subscription agreements.” themselves, which Kludt drafted and
shared with Plaintiffs via Google Drive in
5 February 2018, but subsequently
restricted their access to; he has refused to
6 produce these documents.
7 RFP 7: “All financial, accounting, and governance Kludt claims his productions in response
8 Documents relating to the Project, including but not to this RFP are complete, yet Kludt is
limited to bills, checks, receipts, certificates, withholding documents responsive to this
9 ownership tables, projections, analyses, account RFP. For example, through their own
statements, tax records, balance sheets, income investigation. Plaintiffs have discovered
10 statements, cash flow statements, profit or loss numerous Google Drive documents
statements, investment agreements, operating responsive to this RFP that Kludt is
11 agreements, and subscription agreements.” withholding. One such example is balance
12 sheets and other capital-raising
documents for the Project created and
13 edited by Kludt.
14 RFP 10: “All Documents relating to any loans that Kludt claims his productions in response
Plaintiffs extended to Silicon Valley Real Ventures, to this RFP are complete, yet Kludt is
15 LLC, including Documents reflecting the withholding documents responsive to this
16 conditions on which the loans were extended and RFP. For example, through their own
how the loan proceeds were used.” investigation. Plaintiffs have discovered
17 numerous Google Drive documents
responsive to this RFP that Kludt is
18 withholding.
19 RFP 11: “All Documents relating to Your After initially objecting to this RFP
investments in, and proceeds from, Silicon Valley outright, Kludt indicated he would amend
20
Real Ventures, LLC, including the Project.” his response, but he still has not done so,
21 even though it was due on June 27, 2022.
Evidence indicates that Kludt is
22 withholding documents in response to this
RFP. For example, through third-party
23 subpoenas, Plaintiffs have found evidence
24 of numerous direct and indirect transfers
from SVRV and the Moore Road LLCs to
25 Kludt, yet he has produced no documents
relating to many of these transfers.
26
RFP 12: “All Documents related to the sale of the Kludt claims his productions in response
27 Moore Road properties, including Documents to this RFP are complete, yet Kludt is
sufficient to show any agreements with real estate withholding documents responsive to this
28
brokers involved in the transaction.” RFP. For example, text messages
ATTACHMENTS TO REPLY IN SUPPORT OF MOTION
1 produced by Colleen Marchbank show
that Kludt communicated with her about
2 sale of the Moore Road Properties.
3 RFP 14: “On an ongoing basis, all non-privileged Kludt claims his productions in response
4 Communications between You and any other to this RFP are complete, yet Kludt is
Defendant in this Action relating to this litigation or withholding documents responsive to this
5 any aspect thereof, including without limitation RFP. For example, although Kludt shared
service, procedure, discovery, evidence, strategy, a Google Drive discovery folder with
6 trial, damages, or judgment.” Bragg, which sharing must have been
accompanied by a written
7 communication, that communication has
8 not been produced. Kludt also initially
objected to this RFP outright before
9 implicitly admitting his objection was
invalid by producing certain documents in
10 response to it, but he still has not amended
his response.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ATTACHMENTS TO REPLY IN SUPPORT OF MOTION
1 ATTACHMENT 2
2 Requests for Production Bragg’s/SVRV’s Response
and Plaintiffs’ Reply
3 RFP 1: “All Communications between You and (1) Bragg/SVRV responded to this RFP on
4 the Plaintiffs and (2) anyone affiliated with Silicon August 29, 2022. Bragg/SVRV claim they
Valley Real Ventures, LLC relating to Plaintiffs’ have completed their production in
5 investments with Silicon Valley Real Ventures, response to this RFP. Yet ample evidence,
LLC between January 1, 2012 and the present.” including documents obtained from third
6 parties, proves that Bragg/SVRV are
withholding responsive documents.
7
8 RFP 2: “All Communications relating to the Bragg/SVRV responded to this RFP on
Project between You and any third parties involved August 29, 2022. Bragg/SVRV claim they
9 with the Project, including but not limited to real have completed their production in
estate agents, realtors, brokers, loan officers, response to this RFP. Yet ample evidence,
10 lending agents, engineers, architects, landscape including documents obtained from third
architects, inspection officers or agencies, and parties, proves that Bragg/SVRV are
11 permitting officials or agencies.” withholding responsive documents.
12 By way of example, third-party Colleen
Marchbank produced several hundred text
13 messages with Bragg responsive to this
14 RFP. Bragg/SVRV produced none of
those messages.
15
RFP 3: “All Communications with any members of Bragg/SVRV responded to this RFP on
16 the Geyer family relating to the Project.” August 29, 2022. Bragg/SVRV claim they
have completed their production in
17 response to this RFP. Yet Bragg’s own
document production indicates he
18
searched only for emails with Kludt,
19 Plaintiffs, the Paramont Defendants, and
Genesis—not those with the Geyers.
20
RFP 4: “All Communications related to the sale or Bragg/SVRV responded to this RFP on
21 transfer of the Moore Road properties to Silicon August 29, 2022. Bragg/SVRV claim they
Valley Real Ventures, LLC, including all have completed their production in
22
Communications with the sellers of the Moore response to this RFP. Yet ample evidence,
23 Road properties and their agents.” including documents obtained from third
parties, proves that Bragg/SVRV are
24 withholding responsive documents.
25 RFP 5: “All
Preview
9/9/2022 1 Collin J. Vierra (State Bar No. 322720) EIMER STAHL LLP 2 99 Almaden Blvd., Suite 641 San Jose, CA 95113-1605 3 Telephone: (408) 889-1668 4 Email: cvierra@eimerstahl.com 5 Attorney for Plaintiffs 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 8 9 Robert Arntsen; Mary Lee; Arntsen Family Case No. 22-CIV-01148 10 Partnership, LP; and Brian Christopher Dunn Custodianship; Date: September 16, 2022 11 Time: 9:00am 12 Plaintiffs, Dept. 21 v. 13 Hon. Robert D. Foiles David M. Bragg; Kurtis Stuart Kludt; Silicon 14 Valley Real Ventures LLC; SVRV 385 REPLY IN SUPPORT OF MOTION TO Moore, LLC; SVRV 387 Moore, LLC; COMPEL AND FOR SANCTIONS 15 Gregory J. Davis; Kevin Wolfe; James AGAINST DEFENDANTS DAVID M. 16 Justesen; Paramont Woodside, LLC; and BRAGG, KURTIS S. KLUDT, AND Paramont Capital, LLC; SILICON VALLEY REAL VENTURES, 17 LLC, AND ATTORNEY RYAN VAN Defendants. STEENIS 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF MOTION 1 INTRODUCTION 2 Plaintiffs’ counsel candidly admits that he overlooked the requirement in this Court’s Local Rules to schedule an informal discovery conference (IDC) prior to filing a discovery motion. 3 Plaintiffs’ counsel consulted a pre-2021 version of the Local Rules he had used in a previous case, 4 which did not include the IDC provision. He will not make that mistake again. As soon as 5 Plaintiffs’ counsel was apprised of this oversight, he reached out to the IDC clerk to see if a 6 conference could be scheduled before the hearing. Unfortunately, the Commissioner is not 7 available until several weeks after the hearing, and Plaintiffs have requested an IDC for the 8 Commissioner’s earliest availability, currently September 27, 2022. (Reply Decl. ¶¶ 4–8 & Ex. 1.) Although this Court could postpone the hearing on Plaintiffs’ Motion until after the IDC, it would 9 be appropriate to waive that requirement here because the issues presented in Plaintiffs’ Motion 10 are not likely to be resolved by an IDC. 11 Aside from pointing out the IDC issue, Defendants’ arguments in opposition to Plaintiffs’ 12 Motion are meritless. For example, Defendants Bragg and SVRV (hereinafter, collectively 13 “Bragg”), and their counsel (Mr. Van Steenis), accuse Plaintiffs of running to Court if Defendants 14 do not immediately do exactly as Plaintiffs’ counsel demands. (Bragg Opp. at 2.) But they neglect to disclose that, until Plaintiffs submitted this Motion, neither Defendant had produced a single 15 document even though their responses to Plaintiffs’ First Set of discovery requests were due in 16 June and even though Plaintiffs have offered to shoulder the costs normally associated with 17 downloading and producing documents if Defendants would simply provide access to plainly 18 relevant Google Drive folders. (Mot. at 15:20–22; 7:13–19.) As Plaintiffs learned from third-party 19 discovery (from Bragg’s brother, who promptly produced documents after being served), Bragg 20 waited until after Plaintiffs filed this Motion to seek “some logistical help with Gmail on how I can make a file that I can forward a bunch of emails to for Discovery.” (Reply Decl. Ex. 17.) In 21 short, this Motion was plainly necessary to spur Bragg into action. 22 Defendant Kludt’s counsel, Mr. Poe, similarly accuses Plaintiffs’ counsel of being “hyper- 23 aggressive” (Kludt Opp. at 1), but he does not dispute that Kludt has repeatedly refused to produce 24 hundreds of plainly responsive documents contained in Defendants’ Google Drive accounts that 25 Plaintiffs have specifically identified, even though Kludt does not contest the relevance of these 26 documents and Plaintiffs have offered to undertake the burden of downloading, Bates-stamping, 27 and producing them in PDF to all parties. As of today, Kludt is still withholding indisputably responsive documents from his counsel. (Reply Decl. ¶ 26.) 28 2 REPLY IN SUPPORT OF MOTION 1 Instead of raising colorable objections—which is something that might be resolved at an 2 IDC after the parties have met and conferred about those objections—Defendants first pretended that none of these documents existed, and then, when Plaintiffs’ counsel identified specific Google 3 Drive folders where responsive documents are located (but many of which Plaintiffs cannot 4 access), 1 Defendants simply ignored Plaintiffs’ counsel’s repeated requests for access to those 5 folders. And both Defendants have now represented that their productions are complete even 6 though they have not produced—or even objected to the production of—numerous responsive 7 documents that can be provided to Plaintiffs with the click of a button. 8 And contrary to Defendants’ outrageous claim that Plaintiffs’ counsel failed to meet and confer about the subject of this Motion, Plaintiffs have attempted for months to meet and confer 9 with Defendants about their deficient productions, yet Defendants have repeatedly declined 10 Plaintiffs’ invitations to meet and confer about these issues. As Plaintiffs’ counsel has 11 demonstrated in his dealings with the Paramont Defendants, he does not rush to court at the first 12 provocation. Like Bragg and Kludt, the Paramont Defendants failed to timely respond to Plaintiffs’ 13 first set of discovery requests. Plaintiffs granted them a 10-day extension to July 6, 2022 (the same 14 extension granted to Kludt), but when the Paramont Defendants made their first document production and served their first responses to discovery they were highly deficient. Plaintiffs’ 15 counsel therefore requested a meet and confer, which the Paramont Defendants’ counsel accepted. 16 (Reply Decl. Ex. 2.) The parties met and conferred, and Paramont Defendants’ counsel agreed to 17 supplement their discovery responses by August 1, 2022. Due to computer issues and personal 18 needs, as responses came due, Paramont Defendants’ counsel requested a two-week extension to 19 supplement the Paramont Defendants’ discovery responses. Plaintiffs’ counsel immediately 20 granted the request. As to one specific issue—the Paramont Defendants’ failure to preserve many email attachments—Plaintiffs’ counsel even gave Paramont Defendants’ counsel advanced notice 21 that he would be propounding a special interrogatory seeking further details about this unusual 22 circumstance. (Reply Decl. Ex. 5.) The Paramont Defendants fulfilled their discovery obligations 23 by answering this interrogatory in appropriate detail in a timely manner. Although Plaintiffs are 24 still addressing some outstanding discovery issues with the Paramont Defendants, no motion to 25 26 1 Kludt initially produced 23 documents in response to Plaintiffs’ first set of RFPs, and when Plaintiffs’ counsel 27 notified him that this production was woefully incomplete, Mr. Poe responded with a condescending email noting that young attorneys often “just know” there must be more documents than those produced even though no such documents 28 exist. Plaintiffs’ counsel then showed Mr. Poe numerous Google Drive folders containing relevant documents, including one folder whose contents were still public (and thus mostly visible to Plaintiffs) and which should have been, but were not, produced. (Mot. Decl. Ex. 3.) 3 REPLY IN SUPPORT OF MOTION 1 compel has been necessary because the Paramont Defendants have taken their discovery 2 obligations seriously and their counsel has been willing to engage in the meet-and-confer process. Plaintiffs’ counsel has attempted to use the same collaborative process with Bragg and Kludt, but 3 they have made any such good-faith negotiations impossible by refusing to respond to Plaintiffs’ 4 communications regarding their manifestly deficient (or non-existent) productions. 5 Defendants also imply that Plaintiffs’ discovery requests—including third-party discovery 6 requests—have been excessive. (Kludt Opp. at 2; Bragg Opp. at 4.) Much of that discovery could 7 have been avoided had Defendants produced documents as required, but the documents Plaintiffs 8 have obtained from the Paramont Defendants and third parties have demonstrated time and again that Kludt and Bragg are withholding responsive documents. For example, Plaintiffs learned from 9 productions by the Paramont Defendants that Kludt and Bragg were withholding numerous Google 10 Drive folders containing responsive documents, and Plaintiffs obtained hundreds of responsive 11 text messages from Colleen Marchbank (the broker who sold the Moore Road properties) 12 involving Bragg or Kludt that neither Defendant has produced. (Reply Decl. ¶ 27). Some third- 13 party productions have also revealed additional misconduct related to the merits of the claims, 14 which prompted additional discovery requests to Bragg and Kludt. For example, Plaintiffs obtained financial records from First Republic Bank showing improper transfers from the Moore 15 Road LLCs to Kludt, and loan agreements from Bragg’s brother showing that he extended credit 16 to the Project in exchange for an interest in the Project that was never disclosed to Plaintiffs. (Id.) 17 Finally, Kludt and Bragg seem to imply that Plaintiffs’ discovery requests—and this 18 Motion—are improper because this is a “small” matter. (Kludt Opp. at 2; Bragg Opp. at 4.) But 19 that is not a proper ground for avoiding valid discovery requests, and the alleged “smallness” of 20 the case militates in favor of prompt discovery, as this case does not involve dozens of custodians, decades’ worth of records, thorny privilege issues, or complex ESI protocols. In all events, this is 21 no small matter for Plaintiffs, senior citizens whom Bragg and Kludt defrauded and/or unlawfully 22 deprived of more than $750,000. 23 REPLY TO KLUDT 24 Meet and Confer Efforts 25 Kludt’s suggestion that Plaintiffs’ counsel routinely threatens sanctions unless he 26 “immediately” gets his way is baseless. (Kludt Opp. at 1). So is his claim that Plaintiffs have failed 27 to resolve their discovery disputes through the meet-and-confer process. (Id.) To the contrary, Plaintiffs brought this motion after Kludt failed to produce indisputably responsive documents for 28 two months after his responses to Plaintiffs’ First Set of RFPs were due, and after Plaintiffs 4 REPLY IN SUPPORT OF MOTION 1 repeatedly offered to meet and confer only to be met with silence. Plaintiffs offered to meet and 2 confer with Kludt on July 18, 2022 (“I remain happy to discuss [Kludt’s production of responsive Google Drive documents] further at your convenience.”), twice on August 5, 2022 (“As always, I 3 remain available to meet and confer to address any reasonable concerns about the scope or timing 4 of discovery[,]” and, “As I have said before, I do not wish to engage in needless motion practice, 5 and I certainly prefer not to have to draft a[] motion to compel (much less a sanctions motion). I 6 thus remain, as happy as ever, to meet and confer to discuss Kludt’s discovery obligations . . . . I 7 am available to discuss next week at your convenience. Please let me know when you are 8 available[.]”), August 8, 2022 (“I would be happy to explain [Google Drive] to you further including by arranging a Zoom call with you[.]”), August 10, 2022 (“I still remain available to 9 have a Zoom meeting to explain why [it] is necessary and appropriate [for Kludt to share 10 responsive Google Drive documents] and should not impose a burden on Defendants.”), and 11 August 11, 2022 (CC’ing Mr. Poe while responding directly to Van Steenis, “I have been ready 12 and willing to meet and confer with all Defendants’ counsel throughout this process.”). (Mot. Decl. 13 Exs. 8, 9, 11; Reply Decl. Exs. 6, 8, 9.) Kludt (and his counsel) may believe that they can ignore 14 Plaintiffs’ discovery requests because the case is “small” and Plaintiffs’ counsel is relatively young, but they cannot with a straight face accuse Plaintiffs of failing to seek an opportunity to 15 meet and confer. 16 Indeed, on August 29, 2022, Mr. Poe incorrectly claimed that Plaintiffs “didn’t meet and 17 confer with me about any of the issues presented in [Plaintiffs’] motion.” Mr. Poe said he would 18 probably begin working on his Opposition to the Motion on August 31, 2022. Plaintiffs responded 19 less than an hour later, stating in relevant part: 20 “[W]e met and conferred about these exact issues on July 14, 2022, after my detailed email of July 10, 2022. I have offered to meet and confer several 21 additional times since then. And I still remain available to meet and confer—including today or tomorrow—about these issues. If we can 22 resolve these issues without a motion, I will be happy to withdraw the 23 motion as to Kludt. Indeed, I would prefer to resolve these issues without having to engage in further briefing on them. But Plaintiffs still lack access 24 to relevant documents the links to which they have discovered and shared with Kludt—to say nothing of relevant documents that Plaintiffs can infer 25 exist but links to which they have not directly located. Once again, Kludt can provide access to these materials in seconds.” 26 Mr. Poe did not respond. Two days later, Plaintiffs’ counsel emailed Mr. Poe again, 27 informing him that Bragg’s first production (made on August 29, 2022) revealed that Kludt had 28 withheld additional responsive Google Drive documents and email communications (once again, 5 REPLY IN SUPPORT OF MOTION 1 documents that Kludt does not contest are responsive). 2 Plaintiffs’ counsel again said that he 2 “remain[ed] available to meet and confer.” Again, Mr. Poe did not respond. 3 (Reply Decl. Ex. 14.) On September 2, 2022, Mr. Poe sent an email that ignored Plaintiffs’ offer to meet and 3 confer but instead questioned the evidentiary basis for certain allegations in the Amended 4 Complaint. Plaintiffs’ counsel promptly responded, pointing to evidence supporting the allegations 5 and again stating: “I would be happy to discuss any of these points further and suggest a call on 6 Tuesday to discuss this issue and any other outstanding issues where we might make progress.” 7 (Reply Decl. Ex. 15.) As usual, Mr. Poe did not respond. 8 In short, the central issue that prompted this Motion is that Kludt and Bragg possess numerous documents that they do not dispute are relevant and responsive to Plaintiffs’ discovery 9 requests, yet they refuse to produce them, even though they can be produced in seconds. And while 10 Plaintiffs have raised these issues numerous times and sought to meet and confer about them, 11 Defendants’ counsel has repeatedly refused to engage. There is no excuse for this abuse of the 12 discovery process, and Kludt and Bragg offer none. 13 Kludt’s Productions 14 Kludt made his second production in response to Plaintiffs’ First Set of RFPs on August 23, 2022, after Plaintiffs submitted this Motion. That production was due June 27, 2022. In making 15 that production, Mr. Poe wrote that this constituted the “remainder” of Kludt’s production. (Reply 16 Decl. Ex. 11.) Yet in addition to the documents Plaintiffs have repeatedly requested and which 17 Kludt has declined to produce, Plaintiffs have recently discovered additional responsive 18 documents Kludt is withholding, and have shared that evidence with Mr. Poe. (Reply Decl. Ex. 19 14.) Kludt does not contest that the documents Plaintiffs have identified—or the documents they 20 reference—are responsive. But he still refuses to produce them. Kludt also misleading suggests that he has produced responsive documents from Google 21 Drive to Plaintiffs. (Kludt Opp. at 2.) But the only folders Kludt has “shared” with Plaintiffs are 22 those that Plaintiffs obtained elsewhere and sent to Mr. Poe. First, Plaintiffs shared the “Moore 23 Rd Woodside” folder with Mr. Poe on July 10, 2022, to demonstrate that Kludt undoubtedly 24 possessed numerous responsive documents that he had not produced. (Mot. Decl. Ex. 3.) Kludt did 25 26 2 One of these documents contained notes by Kludt about the Moore Road Project that refer to additional facially 27 responsive folders on Kludt’s computer that he has not produced. (Reply Decl. Ex. 25.) 3 While Plaintiffs’ counsel accepts responsibility for missing the IDC requirement, neither Mr. Poe nor Van Steenis ever raised it before filing their Oppositions, although they had ample opportunities to do so before beginning work 28 on their Oppositions. 6 REPLY IN SUPPORT OF MOTION 1 not even give his own counsel access to those materials until August 5, 2022. (Mot. Decl. ¶ 20.) 2 Kludt then “re-shared” this folder with Plaintiffs on August 8, 2022. 4 (Reply Decl. Ex. 8.) Second, Plaintiffs obtained two more of Kludt’s Google Drive folders containing responsive documents on 3 August 29, 2022, and then shared those folders with Mr. Poe. (Reply Decl. Ex. 14.) Kludt then 4 “re-shared” these folders with Plaintiffs so that, as they had done with the “Moore Rd Woodside” 5 folder, Plaintiffs could incur the cost of downloading, processing, Bates-stamping, and circulating 6 the documents for Kludt. 7 Put simply, Kludt has not shared a single Google Drive folder that Plaintiffs did not 8 specifically identify for Mr. Poe. And Kludt still has not produced many of the Google Drive documents that Plaintiffs have identified. (Reply Decl. ¶ 28 & Ex. 24.) Indeed, the metadata visible 9 on these Google Drive folders indicate that Kludt has not even shared these documents with his 10 own counsel. (Reply Decl. ¶ 26 & Ex. 18.) 11 Kludt is also withholding relevant communications—both emails and text messages—that 12 Plaintiffs have requested. Plaintiffs’ RFP 14 to Kludt sought “all non-privileged Communications 13 between You and any other Defendant in this Action relating to this litigation or any aspect thereof, 14 including without limitation service, procedure, discovery, evidence, strategy, trial, damages, or judgment.” Contrary to Kludt’s insinuation (Kludt Opp. at 4), Kludt objected to that RFP in its 15 entirety. (Reply Decl. Ex. 7.) Plaintiffs sent an email explaining that Kludt’s objection was 16 unwarranted. In his opposition, Kludt attached his response to that email (Kludt Opp. at 4–5), but 17 he misleadingly omitted Plaintiffs’ reply, which further explained why Kludt’s objection was, in 18 fact, meritless. (Reply Decl. Ex. 6.) Kludt thereafter produced several documents in response to 19 this RFP, thereby tacitly conceding that the blanket objection was improper. (Mot. at 13:7–17.) Of 20 course, as has been the case with Kludt’s responses throughout this litigation, he did not produce all documents responsive to this request. To take but one example, although Kludt shared with 21 Bragg the Google Drive folder containing the cherry-picked documents that he shared with 22 Plaintiffs’ counsel before retaining Mr. Poe, Kludt has not produced any communication in which 23 he shared that folder with Bragg. 24 25 4 When he finally “reshared” this folder with Plaintiffs (which, as mentioned, Plaintiffs had shared with Kludt nearly a month earlier), Kludt’s counsel baselessly accused Plaintiffs’ counsel of violating state and federal criminal law by 26 accessing these publicly available documents. In fact, this was the second time Mr. Poe made this baseless accusation—and this time he CC’ed Mr. Van Steenis and the counsel for the Paramont Defendants. Mr. Poe first made 27 this accusation on the parties’ July 14, 2022 meet and confer, and Plaintiffs’ counsel immediately explained why this accusation was unfounded—namely, because these were public documents accessible by anyone with an Internet 28 connection. Indeed, in Plaintiffs’ counsel’s July 10, 2022, email identifying these documents, Plaintiffs’ counsel wrote explicitly that this folder “is public.” (Reply Decl. Ex. 8; Mot. Decl. Ex. 3.) Yet this did not stop Mr. Poe from making this baseless accusation again and in writing. 7 REPLY IN SUPPORT OF MOTION 1 Plaintiffs provide, as Attachment 1, a table setting forth Plaintiffs’ pending RFPs for which 2 there is evidence that Kludt is withholding responsive documents. Relief Sought 3 Kludt contends that Plaintiffs should have asked him for the exact relief they seek from the 4 Court. (Kludt Opp. at 3.) That is not what is required by a meet and confer. All that is required is 5 that the parties meet and confer about the “issue[s]” in dispute. (CCP § 2016.040.) They have done 6 that—and Kludt has refused to respond to each of Plaintiffs’ subsequent meet and confer requests. 7 In their Motion, Plaintiffs requested the relief that they believe is best tailored to address Kludt’s 8 myriad discovery abuses. Kludt is refusing to produce responsive documents even to his own counsel—let alone Plaintiffs—despite the fact that he does not contest the relevance of the 9 withheld documents. Therefore, Kludt should no longer be allowed to self-collect documents, but 10 instead should be compelled to turn over all known sources of relevant documents to his counsel, 11 who will then bear the responsibility of reviewing and producing documents responsive to 12 Plaintiffs’ RFPs. Contrary to Kludt’s suggestion, Plaintiffs have not propounded a blanket request 13 for “all relevant materials.” (Kludt Opp. at 2–3.) They are merely asking for an order directing 14 Kludt to provide his counsel with all potentially relevant documents—including the Google Drive folders Plaintiffs have specifically identified and communications with Bragg—so that Kludt’s 15 counsel can review and produce documents responsive to Plaintiffs’ RFPs. Thirty days is a 16 reasonable time to comply with this request. 5 Indeed, that is the amount of time parties normally 17 have to respond to discovery requests. And Kludt’s productions were due months ago. 18 REPLY TO BRAGG, SVRV, AND VAN STEENIS 19 Meet and Confer Efforts 20 In the past three months, Mr. Van Steenis has agreed to one meet-and-confer offer—on July 18, 2022. And he then refused to follow through on the promises he made during that lone 21 meet and confer. Since that time, he has declined to accept any of Plaintiffs’ numerous meet-and- 22 confer offers, including on August 5, 2022 (“I remain available to meet and confer to address any 23 reasonable concerns about the scope or timing of discovery.”) and twice on August 11, 2022 (“If 24 25 5 Kludt’s and Bragg’s argument that Plaintiffs are unreasonably demanding that Kludt and Bragg give Plaintiffs “exactly what [they] demand[], exactly when [they] want[] it done” in an “unspecified time frame” is absurd. (Kludt 26 Opp. at 1; Bragg Opp. at 2.) First, Plaintiffs sought information about their lost loans and investments for a year and a half before initiating this action, but Kludt and Bragg refused to provide that information or even respond to most 27 of those requests. Second, in March 2022, Kludt contacted Plaintiffs’ counsel and asked to be dismissed from the case and promised that he would share the numerous relevant materials in his possession. He ultimately declined to do so, 28 but he was clearly on notice that Plaintiffs would request these documents in discovery. Third, Defendants were obligated under the Code of Civil Procedure to respond to Plaintiffs’ discovery requests in the time allotted, and that deadline passed two-and-a-half months ago. 8 REPLY IN SUPPORT OF MOTION 1 for any of these requests, you have concerns about the scope of the request, I am available to meet 2 and confer[,]” and, “I have been ready and willing to meet and confer with all Defendants’ counsel throughout this process.”). (Mot. Decl. Exs. 9, 33; Reply Decl. Ex. 10.) Plaintiffs also reiterated 3 that they “continue to be available to meet and confer” on August 24, 2022. (Reply Decl. Ex. 12.) 4 Mr. Van Steenis has refused to accept any of those invitations. Plaintiffs have also sought to follow 5 up on Mr. Van Steenis’s promises to respond to discovery numerous times only to be met with 6 silence. (See Mot. at 15:22–19:19.) Mr. Van Steenis points to a single August 11, 2022 email in 7 which he stated that he would “respond to each point you raise below.” (Bragg Opp. at 8.) But he 8 did not respond to those points until filing his Opposition (even then, he did not address several of Plaintiffs’ points) and he still refuses to meet and confer. 9 Mr. Van Steenis’s modus operandi has been to ignore filing deadlines, discovery deadlines, 10 and emails from Plaintiffs’ counsel. He did not file an answer to the complaint; he did not respond 11 to Plaintiffs’ request for a default against Bragg and SVRV (which was granted); and he has failed 12 to respond to several dozen emails over the past three months, including regarding his clients’ 13 complete failure to respond to Plaintiffs’ discovery requests. The only thing that has prompted a 14 response from him throughout this litigation is the specter of personal sanctions. For example, Mr. Van Steenis did not respond to any of twenty-nine emails sent to or from Plaintiffs’ counsel or 15 Defendants’ counsel on which he was included in early July. (Reply Decl. ¶ 11 & Ex. 3.) He first 16 responded only after Plaintiffs’ counsel suggested that his conduct may be sanctionable. (Mot. 17 Decl. Ex. 25.) Mr. Van Steenis tries to excuse his failure to respond by saying that Plaintiffs’ July 18 6, 2022 email got caught in his “junk” folder, and that he emailed his client to say, “Send what you 19 need to send the lawyer . . . . Follow up with a phone call and tell counsel to call me before filing 20 the ex parte application.” (Bragg Opp. at 6.) But Mr. Van Steenis cannot credibly claim that although twenty-nine emails were caught in his junk folder, the thirtieth email raising the 21 possibility of personal disciplinary action just happened to make it through the filter. Further, 22 despite telling Bragg to call Plaintiffs’ counsel, Bragg never called. 23 Bragg’s Productions 24 Although Bragg’s Opposition claims that he has produced documents, Bragg did not make 25 his first production until August 29, 2022—six days after Plaintiffs submitted this Motion.6 In 26 making that production, Mr. Van Steenis wrote, “These are the links to various documents Mr. 27 Bragg sent me that he has represented represents either everything or close to everything related 28 6 Notably, prior to Plaintiffs filing this Motion, Mr. Van Steenis refused to state whether he would respond to any of Plaintiffs’ First Set of discovery requests, including by producing documents. 9 REPLY IN SUPPORT OF MOTION 1 to the Moore Road project that would be responsive to your document requests.” (Reply Decl. Ex. 2 16.) Yet this production is nowhere near complete. For example, the Paramont Defendants and third parties have produced numerous communications with Bragg responsive to Plaintiffs’ RFPs 3 that Bragg failed to produce. And the productions from the Paramont Defendants do not let Bragg 4 off the hook because, as Mr. Van Steenis knows, the Paramont Defendants did not retain 5 attachments to emails, and therefore in many cases Bragg is the only person in possession of 6 indisputably relevant attachments. (Reply Decl. ¶ 29; Reply Decl. Ex. 13.) And those emails are 7 likely but a small slice of the responsive communications that Bragg has thus far failed to produce. 8 Because Bragg and his counsel cannot be trusted to locate Bragg’s responsive documents, Bragg should be required to provide Plaintiffs with direct access to all Google accounts containing 9 potentially responsive documents, and to turn over all relevant communications. 10 Bragg’s Opposition makes several arguments regarding his objections to Plaintiffs’ 11 specific discovery requests. However, this is the first time Bragg has provided any such arguments 12 in defense of his objections, despite Plaintiffs’ numerous requests to meet and confer about the 13 objections. Plaintiffs address each of Bragg’s objections in Attachment 2. 14 MR. POE’S AND VAN STEENIS’S REQUESTS FOR SANCTIONS While Plaintiffs’ counsel admits his error in consulting an outdated version of the Rules, 15 sanctions against Plaintiffs are not justified. Code of Civil Procedure section 2023.020 provides 16 for the imposition of sanctions for failing “to confer.” While Plaintiffs’ counsel erred in not initially 17 seeking an IDC, Plaintiffs’ counsel has met and conferred with Messrs. Poe (on July 14, 2022) and 18 Van Steenis (on July 18, 2022) about the issues in this Motion, and he has sought to meet and 19 confer with Messrs. Poe and Van Steenis numerous times since. Indeed, when made aware of his 20 mistake, Plaintiffs’ counsel promptly sought to schedule an IDC with Defendants in the event this Court decides not to waive the requirement. True to form, however, Messrs. Mr. Poe and Van 21 Steenis refused to respond to the IDC clerk regarding their availability for an IDC. (Reply Decl. 22 Ex. 1.) It would be improper to impose sanctions for a good-faith mistake that Plaintiffs have 23 promptly attempted to rectify, especially given Defendants’ continued lack of cooperation. 24 Sanctions would also be unjust because Messrs. Mr. Poe and Van Steenis could have 25 avoided drafting their Oppositions entirely if they had informed Plaintiffs’ counsel of the IDC 26 provision—rather than waiting to raise it for the first time in their Oppositions. Had they done so, 27 Plaintiffs’ counsel could have withdrawn the Motion and/or sought to ensure, by stipulation or otherwise, that Kludt and Bragg would not have to file an Opposition until and unless the parties 28 had an IDC that did not resolve the issues in question. (Reply Decl. ¶ 7.) Plaintiffs’ counsel has 10 REPLY IN SUPPORT OF MOTION 1 repeatedly sought to avoid imposing costs on Defendants, including by producing Google Drive 2 documents for them, waiving certain statutory requirements, and drafting and filing a protective order requested by Defendants. (Reply Decl. Ex. 4.) Indeed, four days before Kludt and Bragg 3 filed their Oppositions (and two days before Mr. Poe even began drafting his Motion), Plaintiffs’ 4 counsel said he would be willing to withdraw the Motion as to Kludt if the parties could resolve 5 their dispute by a simple meet and confer. Plaintiffs’ counsel offered to meet and confer again two 6 days later. (Reply Decl. Ex. 14.) But Mr. Poe never responded. 7 PLAINTIFFS’ REQUEST FOR SANCTIONS SHOULD BE GRANTED 8 Plaintiffs have sought to meet and confer about Kludt’s, Bragg’s, and SVRV’s discovery deficiencies numerous times only to be met with silence. Plaintiffs have spent many hours, and 9 incurred substantial costs, tracking down documents that Kludt, Bragg, and SVRV have unlawfully 10 withheld, and presenting that evidence to Messrs. Poe and Van Steenis. (Reply Decl. ¶ 27.) 11 “Failing to confer” or “to respond to an authorized method of discovery” are “misuses of the 12 discovery process” that justify sanctions. 7 (CCP §§ 2023.010, 2023.030.) Kludt, Bragg, and SVRV 13 have repeatedly done both. And Mr. Van Steenis has demonstrated that he will only respond to 14 Plaintiffs’ counsel under threat of personal sanctions. Sanctions against Kludt, Bragg, SVRV, and Mr. Van Steenis are therefore necessary to curb their misconduct. 15 CONCLUSION 16 Plaintiffs respectfully request that the Court keep this hearing on the calendar, compel 17 Kludt, Bragg, and SVRV to comply with their discovery obligations, and issue the requested 18 sanctions against Kludt, Bragg, SVRV, and Mr. Van Steenis. 19 20 Dated: September 9, 2022 By: ______________________ 21 Collin J. Vierra EIMER STAHL, LLP 22 Attorney for Plaintiffs 23 24 25 26 27 7 Bragg and SVRV, in particular, have also made “without substantial justification, [] unmeritorious objection[s] to discovery” and “evasive response[s] to discovery.” (CCP § 2023.010.) To take just one example, they have refused 28 to answer SRog 12 regarding the remuneration Bragg received from the Moore Road Project, and Mr. Van Steenis has refused to answer Plaintiffs’ invitations to meet and confer to discuss the scope of the request. (Attachment 2; Mot. at 17:10–19.) 11 REPLY IN SUPPORT OF MOTION 1 ATTACHMENT 1 2 Requests for Production Plaintiffs’ Contentions RFP 1: “All Communications between You and (1) Kludt claims his productions in response 3 the Plaintiffs and (2) anyone affiliated with Silicon to this RFP are complete, yet Kludt is 4 Valley Real Ventures, LLC relating to Plaintiffs’ withholding documents responsive to this investments with Silicon Valley Real Ventures, RFP. For example, text messages 5 LLC between January 1, 2012 and the present.” produced by Colleen Marchbank show that Kludt communicated with her about 6 Plaintiffs’ investments. Yet Kludt did not produce those messages. Further, except 7 for in response to Kludt’s RFP 14 and 8 Bragg’s/SVRV’s RFP 12, neither Kludt nor Bragg has produced any text message 9 between each other unless third parties were also part of the text message group. 10 RFP 2: “All Communications relating to the Kludt claims his productions in response 11 Project between You and any third parties involved to this RFP are complete, yet Kludt is 12 with the Project, including but not limited to real withholding documents responsive to this estate agents, realtors, brokers, loan officers, RFP. For example, text messages 13 lending agents, engineers, architects, landscape produced by Colleen Marchbank show architects, inspection officers or agencies, and that Kludt communicated with her about 14 permitting officials or agencies.” the Project. Yet Kludt did not produce those messages. As another example, 15 Kludt told Plaintiffs’ counsel that he 16 orchestrated the Genesis loan for the Project by communicating with a personal 17 connection at Genesis. Yet those communications have not been produced. 18 RFP 3: “All Communications with any members of After initially objecting to this RFP 19 the Geyer family relating to the Project.” outright, Kludt indicated he would amend 20 his response, but he still has not done so, even though it was due on June 27, 2022. 21 While Kludt has produced some documents responsive to this RFP, it is not 22 clear if he is actually responding to this RFP, or if he produced those documents 23 only because they were responsive to 24 other RFPs. John Geyer has stated to Plaintiffs’ counsel that he exchanged 25 written communications with Bragg and Kludt about the Project. 26 RFP 6: “All financial, accounting, and governance Kludt claims his productions in response 27 Documents relating to Plaintiffs’ investments with to this RFP are complete, yet Kludt is 28 Silicon Valley Real Ventures, LLC between withholding documents responsive to this January 1, 2012 and the present, including but not RFP. For example, through their own ATTACHMENTS TO REPLY IN SUPPORT OF MOTION 1 limited to bills, checks, receipts, certificates, investigation. Plaintiffs have discovered ownership tables, projections, analyses, account numerous Google Drive documents 2 statements, tax records, balance sheets, income responsive to this RFP that Kludt is statements, cash flow statements, profit or loss withholding. One such example is the 3 statements, investment agreements, operating Effective Operating Agreements 4 agreements, and subscription agreements.” themselves, which Kludt drafted and shared with Plaintiffs via Google Drive in 5 February 2018, but subsequently restricted their access to; he has refused to 6 produce these documents. 7 RFP 7: “All financial, accounting, and governance Kludt claims his productions in response 8 Documents relating to the Project, including but not to this RFP are complete, yet Kludt is limited to bills, checks, receipts, certificates, withholding documents responsive to this 9 ownership tables, projections, analyses, account RFP. For example, through their own statements, tax records, balance sheets, income investigation. Plaintiffs have discovered 10 statements, cash flow statements, profit or loss numerous Google Drive documents statements, investment agreements, operating responsive to this RFP that Kludt is 11 agreements, and subscription agreements.” withholding. One such example is balance 12 sheets and other capital-raising documents for the Project created and 13 edited by Kludt. 14 RFP 10: “All Documents relating to any loans that Kludt claims his productions in response Plaintiffs extended to Silicon Valley Real Ventures, to this RFP are complete, yet Kludt is 15 LLC, including Documents reflecting the withholding documents responsive to this 16 conditions on which the loans were extended and RFP. For example, through their own how the loan proceeds were used.” investigation. Plaintiffs have discovered 17 numerous Google Drive documents responsive to this RFP that Kludt is 18 withholding. 19 RFP 11: “All Documents relating to Your After initially objecting to this RFP investments in, and proceeds from, Silicon Valley outright, Kludt indicated he would amend 20 Real Ventures, LLC, including the Project.” his response, but he still has not done so, 21 even though it was due on June 27, 2022. Evidence indicates that Kludt is 22 withholding documents in response to this RFP. For example, through third-party 23 subpoenas, Plaintiffs have found evidence 24 of numerous direct and indirect transfers from SVRV and the Moore Road LLCs to 25 Kludt, yet he has produced no documents relating to many of these transfers. 26 RFP 12: “All Documents related to the sale of the Kludt claims his productions in response 27 Moore Road properties, including Documents to this RFP are complete, yet Kludt is sufficient to show any agreements with real estate withholding documents responsive to this 28 brokers involved in the transaction.” RFP. For example, text messages ATTACHMENTS TO REPLY IN SUPPORT OF MOTION 1 produced by Colleen Marchbank show that Kludt communicated with her about 2 sale of the Moore Road Properties. 3 RFP 14: “On an ongoing basis, all non-privileged Kludt claims his productions in response 4 Communications between You and any other to this RFP are complete, yet Kludt is Defendant in this Action relating to this litigation or withholding documents responsive to this 5 any aspect thereof, including without limitation RFP. For example, although Kludt shared service, procedure, discovery, evidence, strategy, a Google Drive discovery folder with 6 trial, damages, or judgment.” Bragg, which sharing must have been accompanied by a written 7 communication, that communication has 8 not been produced. Kludt also initially objected to this RFP outright before 9 implicitly admitting his objection was invalid by producing certain documents in 10 response to it, but he still has not amended his response. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTACHMENTS TO REPLY IN SUPPORT OF MOTION 1 ATTACHMENT 2 2 Requests for Production Bragg’s/SVRV’s Response and Plaintiffs’ Reply 3 RFP 1: “All Communications between You and (1) Bragg/SVRV responded to this RFP on 4 the Plaintiffs and (2) anyone affiliated with Silicon August 29, 2022. Bragg/SVRV claim they Valley Real Ventures, LLC relating to Plaintiffs’ have completed their production in 5 investments with Silicon Valley Real Ventures, response to this RFP. Yet ample evidence, LLC between January 1, 2012 and the present.” including documents obtained from third 6 parties, proves that Bragg/SVRV are withholding responsive documents. 7 8 RFP 2: “All Communications relating to the Bragg/SVRV responded to this RFP on Project between You and any third parties involved August 29, 2022. Bragg/SVRV claim they 9 with the Project, including but not limited to real have completed their production in estate agents, realtors, brokers, loan officers, response to this RFP. Yet ample evidence, 10 lending agents, engineers, architects, landscape including documents obtained from third architects, inspection officers or agencies, and parties, proves that Bragg/SVRV are 11 permitting officials or agencies.” withholding responsive documents. 12 By way of example, third-party Colleen Marchbank produced several hundred text 13 messages with Bragg responsive to this 14 RFP. Bragg/SVRV produced none of those messages. 15 RFP 3: “All Communications with any members of Bragg/SVRV responded to this RFP on 16 the Geyer family relating to the Project.” August 29, 2022. Bragg/SVRV claim they have completed their production in 17 response to this RFP. Yet Bragg’s own document production indicates he 18 searched only for emails with Kludt, 19 Plaintiffs, the Paramont Defendants, and Genesis—not those with the Geyers. 20 RFP 4: “All Communications related to the sale or Bragg/SVRV responded to this RFP on 21 transfer of the Moore Road properties to Silicon August 29, 2022. Bragg/SVRV claim they Valley Real Ventures, LLC, including all have completed their production in 22 Communications with the sellers of the Moore response to this RFP. Yet ample evidence, 23 Road properties and their agents.” including documents obtained from third parties, proves that Bragg/SVRV are 24 withholding responsive documents. 25 RFP 5: “All