Preview
nw
DONALD W. CARLSON (SBN 79258; dcarlson@ccplaw.com)
COLIN C. MUNRO (SBN 195520; cmunro@ccplaw.com)
ERIC K. IWASAKI (SBN 256664; ciwasaki@ccplaw.com)
CARLSON CALLADINE & PETERSON LLP
353 Sacramento Street, 16th Floor ELECTRONICALLY
San Francisco, CA 94111 FILED
Telephone: (415) 391-3911 Superior Court of California,
Facsimile: (415) 391-3898 County of San Francisco
12/27/2018
Attorneys for Defendant or ee
KEVIN NGUYEN EN A clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
COLIN HEILBUT, CASE NO.: CGC-17-561863
Plaintiff, DISCOVERY
vs. REDACTED
EQUINOX FITNESS SC SAN FRANCISCO,
INC.; EQUINOX HOLDINGS, INC.; KEVIN
NGUYEN; and DOES 1-10 inclusive,
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT KEVIN NGUYEN’S
UNOPPOSED MOTION FOR LETTERS
Defendants. ROGATORY
Date: January 28, 2019
Time: 9:00 a.m.
Dept.: 302
Action Filed: October 12, 2017
Trial: April 15, 2019
eee
DEF. KEVIN NGUYEN’S MEMO. ISO UNOPPOSED MOT. FOR LETTERS ROGATORY
Case No.: CGC-17-561863nw
Defendant Kevin Nguyen (“Nguyen”) respectfully submits the following brief in support of his
unopposed motion for the issuance of Letters Rogatory to the appropriate court in Canada compelling
the depositions of medical service providers who provided treatment to Plaintiff Colin Heilbut
(“Heilbut’).
I. INTRODUCTION
Defendant Nguyen requests the Court issue the accompanying Letters Rogatory to the Superior
Court of Justice of Ontario, Canada requesting depositions from Dr. Careen Coetzee, Dr. Erin
McDonough, Dr. Dorothy Kuk, and Toronto Western Hospital. (Declaration of Eric K. Iwasaki in
Support of Defendant Kevin Nguyen’s Motion for Letters Rogatory (“Iwasaki Decl.”), Exhibit 1.)
The issuance of Letters Rogatory is necessary as the requested information is highly relevant
to Heilbut’s claims and because the information sought cannot be obtained by other means. Following
the events alleged in the Complaint, Heilbut sought and received psychiatric care at Toronto Western
Hospital. While being treated at Toronto Western Hospital, Heilbut discussed the allegations
contained in the Complaint. Heilbut’s description of Nguyen’s conduct while being treated, however,
differs substantially from his description contained in the Complaint. Documents produced by Heilbut
suggest that during his treatment at Toronto Western Hospital, Heilbut made numerous statements that
are relevant to his credibility. Additionally, prior to the incident alleged in the Complaint, Heilbut
received treatment from Drs. Careen Coetzee and Erin McDonough. Therefore, both treatment
providers possess information regarding Heilbut’s mental status prior to the alleged incident and the
extent of any prior mental conditions affecting his current claim of injury. Thus, the Court should
grant this unopposed motion and issue the accompanying Letters Rogatory. (Iwasaki Decl., Exhibit
1)
Tl. RELEVANT BACKGROUND
A. Plaintiff's Allegations
Plaintiff Heilbut is a 33-year old man who was a member of Equinox Fitness in San Francisco
from May 2016 through August 2017. (Complaint §{ 5, 17-18.) Defendant Nguyen was an employee
at Equinox Fitness working as a yoga instructor. (Id. { 8.) Defendant Equinox Holdings, Inc.
(“Equinox”) operates Equinox Fitness in San Francisco. (Id. {J 6-7.) Between April 2016 and August
1
DEF. KEVIN NGUYEN’S MEMO. ISO UNOPPOSED MOT. FOR LETTERS ROGATORY
Case No.: CGC-17-561863nw
2017, Plaintiff actively practiced yoga and attended numerous yoga classes, including multiple classes
at Equinox Fitness in San Francisco taught by Nguyen. (Id. § 19.)
On August 1, 2017, Heilbut attended a yoga class taught by Defendant Nguyen. (Id. 20.)
During this class, Heilbut alleges that Nguyen “cupped [Heilbut’s] genitals under the pretense of
providing him assistance with a yoga pose.” (Id.) Nonetheless, Heilbut alleges that he joined multiple
students immediately after class to receive additional assistance from Nguyen with more advanced
yoga poses. (Id. | 21.) After the other students left, Heilbut alleges Nguyen offered to help Heilbut
with additional stretches and that Heilbut accepted. (Id. § 22-23.) Heilbut alleges that these stretches
involved “frequent and unnecessary contact with Mr. Nguyen for prolonged periods of time.” (Id. §
23.)
On August 3, 2017, Heilbut attended another yoga class taught by Nguyen. (Id. § 24.)
Following the conclusion of class, Heilbut alleges that he again agreed to a one-on-one session of
additional stretching with Nguyen. (Id. 425.) Following assistance with poses Heilbut had interest in,
Heilbut alleges that Defendant Nguyen engaged in poses involving extensive body contact with
Heilbut. (Id. { 26.) After being interrupted by the cleaning staff at Equinox Fitness, Heilbut alleges
that he went with Nguyen to a smaller room and continued various stretches, which Heilbut alleges
involved leaving Heilbut’s “buttocks exposed” and “holding Mr. Nguyen’s wrists.” (Id. {| 27-29.)
Heilbut then alleges that at Nguyen’s request, Heilbut laid on his stomach, leading to Nguyen sitting
on him and giving him a neck and shoulder massage. (Id. 4 30.) Heilbut alleges that afterward,
Nguyen had an “erection” that “was clearly visible through Mr. Nguyen’s athletic shorts” and “soon
thereafter” Nguyen “emitted a short, sensual moan,” which Heilbut believed “sounded like a noise a
person would make while having an orgasm.” (Id. 32.)
On August 4, 2017, Heilbut reported these events as a “sexual assault” to Equinox Fitness.
(Id. § 34.) After multiple discussions with Equinox, Heilbut’s membership to Equinox Fitness was
revoked, which Plaintiff was allegedly informed “was done pursuant to [Equinox’s] investigation into
[Plaintiff's] sexual assault complaint.” (Id. §f] 34-36, 38-47.)
B. Investigation by the SFPD regarding the Alleged Incident
On August 9, 2017, Heilbut filed a complaint with the San Francisco Police Department (the
390931 2
DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY
Case No.: CGC-17-561863nw
“SFPD”). Pursuant to this complaint, the SFPD conducted an investigation, which included
interviews with Heilbut, Nguyen, discussions with Equinox, and a review of security camera footage
of the alleged events. (Iwasaki Decl, Exhibit 2 [SFPD Chronological of Investigation].) After
reviewing the security camera footage of the alleged events, the SFPD found there was “[n]Jo sexual
battery,” that “[dJuring the majority of the footage, there are other students in the yoga room with the
victim,” and that there is “[nJothing seen in the footage that rises to the level of criminality as
described by [Heilbut].” (Id. at p. 4 of 4.) Based on the results of their investigation, including a
finding that the “[v]ideo footage did not corroborate [Heilbut]’s allegations,” the case was closed as
“unfounded.” (Id.)
Cc. Heilbut’s Treatment in Canada
Following these events, Heilbut sought mental health treatment while in Canada. Heilbut first
attempted to see a Dr. Erin McDonough, a Toronto doctor whom Heilbut had previously seen, but due
to her unavailability, she referred Heilbut to the emergency room at Toronto Western Hospital.
(Iwasaki Decl., Exhibit 6 [Heilbut 2/2/2018 Depo. at 305:1-10, 311:9-19].) While seeking treatment
at Toronto Western Hospital, Heilbut made a number of statements regarding his mental condition to
various personnel at the hospital. This included statements that Heilbut yy
Rn § (ivasaki Decl, Exhibit 3 [CH000058];
Exhibit 4 [CH000064].) Heilbut also made statements while at the hospital to a Dr. Dorothy Kuk,
which do not match up with his allegations, ee
HE. wasaki Decl., Exhibit 3 [CH000062].)
Til. ARGUMENT
A. Letters Rogatory Are Appropriate Under California Law.
Under the California Code of Civil Procedure, the Court is specifically authorized to issue
letters rogatory upon a motion by the party seeking discovery. Under the California Code of Civil
Procedure a “party may obtain discovery by taking an oral deposition ... in a foreign nation” and may
“compel the deponent to attend and to testify, as well as to produce any document, electronically
stored information, or tangible thing for inspection, copying testing sampling, and any related
activity.” (Cal. Code Civ. Proc. §§ 2027.010(a) and 2027.010(b).) “On motion of the party seeking to
390931 3
DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY
Case No.: CGC-17-561863nw
take an oral deposition in a foreign nation, the court in which the action is pending shall issue a
commission, letters rogatory, or a letter of request, if it determines that one is necessary or
convenient.” (Cal. Code Civ. Proc. § 2027.010(e); See also Toyota Motor Corp. v. Superior Court
(2011) 197 Cal.App.4th 1107, 1113 [“[W]e note that the Civil Discovery Act (§ 2016.010 et seq.)
provides a means for taking depositions of non-California residents in the state or country of their
residence ... section 2027.010 provides for depositions in foreign nations.”].)
B. Letters Rogatory Are Appropriate Under Canadian Law.
1. Canadian Law Permits Discovery Pursuant to Letters Rogatory.
The Canadian Evidence Act and the parallel Ontario Evidence Act, permit the court to issue
discovery orders pursuant to letters rogatory issued by a foreign court. (R.S., 1985, c. C-5, s. 46;
R.S.O. 1990, c. E.23, s. 60). Under the Canadian Evidence Act, a court may issue an order
compelling testimony upon an application by “any court or tribunal outside Canada, before which any
civil, commercial or criminal matter is pending ....” (R.S., 1985, c. C-5, s. 46.) Similarly, under the
Ontario Evidence Act, specifically authorizes an Ontario court to may “order the examination” of a
witness as specified in a “letter of request” issued by a foreign court in relation “to an action, suit or
proceeding pending in or before such foreign court or tribunal ....” (R.S.O. 1990, c. E. 23, s. 60.)
Under the authority set out in Re Friction Division Products Inc. v. E.. Du Pont de Nemours
& Co. Inc. et al. (1986), 56 O.R. (2d) 722 (H.C.J.), a foreign applicant must establish six factors
before a Canadian court will give effect to letters rogatory. These six factors are as follows:
1. The evidence sought is relevant;
2. The evidence is necessary for trial and will be adduced at trial, if admissible;
3. The evidence is not otherwise obtainable;
4. The order sought is not contrary to public policy;
5. The documents sought are identified with reasonable specificity;
6. The production of such documents is not unduly burdensome, having in mind, what the
relevant witnesses would be required to do, and produce, were the action to be tried in
Canada.
Td.
390931 4
DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY
Case No.: CGC-17-561863nw
2. The Canadian Discovery Sought by the Letters Rogatory is Relevant and
Necessary for Trial.
Discovery regarding the treatment provided by Dr. Careen Coetzee, Dr. Erin McDonough, Dr.
Dorothy Kuk, and Toronto Western Hospital is relevant and necessary for trial as it goes directly to
Heilbut’s injury allegations and his credibility regarding his recollection of the events alleged in the
Complaint.
a) Dr. Careen Coetzee
Heilbut received treatment from Dr. Careen Coetzee, a Toronto area therapist, both prior to the
events alleged in the Complaint and after. Specifically, Heilbut testified in his deposition that J
a
ee
HE. (vasaki Decl., Exhibit 5 [Heilbut Responses to Form Interrogatories 6.4(c);
Exhibit 6 [Heilbut Depo. 02/02/2018 at 301:6-303:14].) Based on Dr. Careen Coetzee’s treatment
before the alleged incident, deposition testimony related to such treatment is relevant and necessary
for trial to determine whether Heilbut is attempting to assert liability for mental health issues that
existed prior to the events alleged in the Complaint. Further, her treatment of Heilbut after the alleged
incident is relevant and necessary for trial as such treatment is direct evidence regarding the existence
and scope of Heilbut’s alleged injuries, and to the extent Heilbut described the events alleged in the
Complaint, Heilbut’s records would go to his credibility.
b) Dr. Erin McDonough
Heilbut received treatment from Dr. Erin McDonough, a psychiatrist located in Toronto,
before and after the events alleged in the Complaint. Specifically, Heilbut testified in his deposition
cr
(sak Decl, Exhibit 6 [Heilbut Depo.
02/02/2018 at 305:1-308:11].) Heilbut has also responded in discovery that he received treatment
from her on September 25, 2017, related to his injuries. (Exhibit 5 [Heilbut Responses to Form
Interrogatories 6.4(c)). Heil
a
390931 5
DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY
Case No.: CGC-17-561863nw
E(w asaki Decl., Exhibit 6 [Heilbut Depo. 02/02/2018
at 355:20-356:15]; Exhibit 7 [CH000076].) Similar to Careen Coetzee, the treatment records for
Heilbut by Dr. Erin McDonough and deposition testimony related to such records is relevant and
necessary for trial as they reflect Heilbut’s mental condition prior to the events alleged in the
Complaint and the treatment he received for his alleged injuries. Further, to the extent Heilbut
described the events alleged in the Complaint to Dr. McDonough, any evidence of such a description
would also go to Heilbut’s credibility.
¢) Dr. Dorothy Kuk
During his visit to Toronto Western Hospital, Heilbut received treatment from Dr. Dorothy
Kuk (misspelled as Cook in some of the medical records provided by Heilbut) in connection with his
alleged injuries. While receiving treatment, Heilbut es
a
(52
Decl., Exhibit 3 [CH000062].) In stark contrast to the allegations contained in the Complaint, yyy
ES (:.)
Further, Heilbut now specifically denies making such allegations reinforcing the need for testimony
regarding Heilbut’s visit. (Iwasaki Decl., Exhibit 6 [Heilbut Depo. 02/02/2018 at 361:13-24].) The
records of Dr. Kuk’s treatment produced by Heilbut also indicate that
a
ES (1 2saki Decl, Exhibit 3 [CH000062].) Based on the
factual discrepancies included in the records already provided and the statements regarding other
potential disorders, deposition testimony regarding Heilbut’s treatment are relevant and necessary for
trial as they go to Heilbut’s credibility and to whether any of Heilbut’s alleged injuries were pre-
existing.
d) Toronto Western Hospital
As indicated above, Heilbut received treatment at Toronto Western Hospital, including by Dr.
Kuk, in connection with his alleged injuries. The records produced thus far indicate potential
discrepancies in his recollection and the possibility of pre-existing conditions affecting his injury
390931 6
DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY
Case No.: CGC-17-561863nw
allegations. Thus, any deposition testimony regarding any records regarding Heilbut’s treatment are
relevant and necessary to this litigation and for trial as they would go to Heilbut’s credibility and any
claim of damages.
3. The Canadian Discovery Sought by the Letters Rogatory is not Otherwise
Obtainable, is not Contrary to Public Policy, is Identified with Reasonable
Specificity, and is not Unduly Burdensome.
Although Heilbut has provided some of the medical records regarding his treatment in Canada
and provided an authorization for the release of the Canadian medical records related to the healthcare
providers at issue, Letters Rogatory are still necessary to authenticate the records and to obtain
deposition testimony regarding Heilbut’s treatment that is not reflected in the documents. This is
particularly so as after extensive meet and confer correspondence, counsel for Heilbut declined to
stipulate to the depositions of Heilbut’s medical treatment providers in Canada absent an order from
the appropriate court in Canada compelling such depositions. (Iwasaki Decl., Exhibit 8 [11/12/2018
Munro to Avloni email], Exhibit 9 [12/05/2018 Baron to Iwasaki email].) In addition to not being
obtainable absent Letters Rogatory, the discovery sought is not in conflict with any public policy as it
is limited to testimony regarding Heilbut’s medical records and medical providers Heilbut himself has
identified in discovery as having provided treatment in connection with the injuries alleged in the
Complaint. (See e.g. Iwasaki Decl., Exhibit 5 [Heilbut Responses to Form Interrogatories 6.4(c)].)
Further, the discovery sought by the Letters Rogatory is identified with reasonable specificity as the
proposed Letters Rogatory includes the likely scope of deposition, which has been narrowly tailored
and agreed upon, based on meet and confer discussions with counsel for Heilbut. (Iwasaki Decl.,
Exhibit 1 [Letters Rogatory IV.A; Iwasaki Decl. § 11.) Finally, the discovery sought is not unduly
burdensome as it is within the scope of what would be permitted under Canadian law and the
depositions would be subject to and conducted in accordance with Canadian law.
IV. CONCLUSION
For the foregoing reasons, Defendant Nguyen respectfully requests the Court approve, sign,
and seal the proposed Letters Rogatory accompanying this unopposed Motion. A sample of the topics
for deposition requested by Defendant Nguyen is set forth in the proposed Letters Rogatory. (Iwasaki
Decl., Exhibit 1.) After the Court signs the Letters Rogatory, Defendant Nguyen requests the clerk
390931 7
DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY
Case No.: CGC-17-561863nw
authenticate the Court’s signature by affixing the Court’s seal and that the Letters Rogatory be
returned by the clerk to Court’s signature by affixing the Court’s seal thereto, and that the Letters
Rogatory thereafter be returned by the clerk to counsel for Defendant Nguyen to allow for the prompt
transmittal of the Letters Rogatory to the appropriate judicial authority in Canada for execution.
DATED: December 27, 2018 CARLSON, CALLADINE & PETERSON LLP
By: /s/ ERIC K. IWASAKI
DONALD W. CARLSON
COLIN C. MUNRO
ERIC K. IWASAKI
Attorneys for Defendant
KEVIN NGUYEN
390931 8
DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY
Case No.: CGC-17-561863
Preview
nw DONALD W. CARLSON (SBN 79258; dcarlson@ccplaw.com) COLIN C. MUNRO (SBN 195520; cmunro@ccplaw.com) ERIC K. IWASAKI (SBN 256664; ciwasaki@ccplaw.com) CARLSON CALLADINE & PETERSON LLP 353 Sacramento Street, 16th Floor ELECTRONICALLY San Francisco, CA 94111 FILED Telephone: (415) 391-3911 Superior Court of California, Facsimile: (415) 391-3898 County of San Francisco 12/27/2018 Attorneys for Defendant or ee KEVIN NGUYEN EN A clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO COLIN HEILBUT, CASE NO.: CGC-17-561863 Plaintiff, DISCOVERY vs. REDACTED EQUINOX FITNESS SC SAN FRANCISCO, INC.; EQUINOX HOLDINGS, INC.; KEVIN NGUYEN; and DOES 1-10 inclusive, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KEVIN NGUYEN’S UNOPPOSED MOTION FOR LETTERS Defendants. ROGATORY Date: January 28, 2019 Time: 9:00 a.m. Dept.: 302 Action Filed: October 12, 2017 Trial: April 15, 2019 eee DEF. KEVIN NGUYEN’S MEMO. ISO UNOPPOSED MOT. FOR LETTERS ROGATORY Case No.: CGC-17-561863nw Defendant Kevin Nguyen (“Nguyen”) respectfully submits the following brief in support of his unopposed motion for the issuance of Letters Rogatory to the appropriate court in Canada compelling the depositions of medical service providers who provided treatment to Plaintiff Colin Heilbut (“Heilbut’). I. INTRODUCTION Defendant Nguyen requests the Court issue the accompanying Letters Rogatory to the Superior Court of Justice of Ontario, Canada requesting depositions from Dr. Careen Coetzee, Dr. Erin McDonough, Dr. Dorothy Kuk, and Toronto Western Hospital. (Declaration of Eric K. Iwasaki in Support of Defendant Kevin Nguyen’s Motion for Letters Rogatory (“Iwasaki Decl.”), Exhibit 1.) The issuance of Letters Rogatory is necessary as the requested information is highly relevant to Heilbut’s claims and because the information sought cannot be obtained by other means. Following the events alleged in the Complaint, Heilbut sought and received psychiatric care at Toronto Western Hospital. While being treated at Toronto Western Hospital, Heilbut discussed the allegations contained in the Complaint. Heilbut’s description of Nguyen’s conduct while being treated, however, differs substantially from his description contained in the Complaint. Documents produced by Heilbut suggest that during his treatment at Toronto Western Hospital, Heilbut made numerous statements that are relevant to his credibility. Additionally, prior to the incident alleged in the Complaint, Heilbut received treatment from Drs. Careen Coetzee and Erin McDonough. Therefore, both treatment providers possess information regarding Heilbut’s mental status prior to the alleged incident and the extent of any prior mental conditions affecting his current claim of injury. Thus, the Court should grant this unopposed motion and issue the accompanying Letters Rogatory. (Iwasaki Decl., Exhibit 1) Tl. RELEVANT BACKGROUND A. Plaintiff's Allegations Plaintiff Heilbut is a 33-year old man who was a member of Equinox Fitness in San Francisco from May 2016 through August 2017. (Complaint §{ 5, 17-18.) Defendant Nguyen was an employee at Equinox Fitness working as a yoga instructor. (Id. { 8.) Defendant Equinox Holdings, Inc. (“Equinox”) operates Equinox Fitness in San Francisco. (Id. {J 6-7.) Between April 2016 and August 1 DEF. KEVIN NGUYEN’S MEMO. ISO UNOPPOSED MOT. FOR LETTERS ROGATORY Case No.: CGC-17-561863nw 2017, Plaintiff actively practiced yoga and attended numerous yoga classes, including multiple classes at Equinox Fitness in San Francisco taught by Nguyen. (Id. § 19.) On August 1, 2017, Heilbut attended a yoga class taught by Defendant Nguyen. (Id. 20.) During this class, Heilbut alleges that Nguyen “cupped [Heilbut’s] genitals under the pretense of providing him assistance with a yoga pose.” (Id.) Nonetheless, Heilbut alleges that he joined multiple students immediately after class to receive additional assistance from Nguyen with more advanced yoga poses. (Id. | 21.) After the other students left, Heilbut alleges Nguyen offered to help Heilbut with additional stretches and that Heilbut accepted. (Id. § 22-23.) Heilbut alleges that these stretches involved “frequent and unnecessary contact with Mr. Nguyen for prolonged periods of time.” (Id. § 23.) On August 3, 2017, Heilbut attended another yoga class taught by Nguyen. (Id. § 24.) Following the conclusion of class, Heilbut alleges that he again agreed to a one-on-one session of additional stretching with Nguyen. (Id. 425.) Following assistance with poses Heilbut had interest in, Heilbut alleges that Defendant Nguyen engaged in poses involving extensive body contact with Heilbut. (Id. { 26.) After being interrupted by the cleaning staff at Equinox Fitness, Heilbut alleges that he went with Nguyen to a smaller room and continued various stretches, which Heilbut alleges involved leaving Heilbut’s “buttocks exposed” and “holding Mr. Nguyen’s wrists.” (Id. {| 27-29.) Heilbut then alleges that at Nguyen’s request, Heilbut laid on his stomach, leading to Nguyen sitting on him and giving him a neck and shoulder massage. (Id. 4 30.) Heilbut alleges that afterward, Nguyen had an “erection” that “was clearly visible through Mr. Nguyen’s athletic shorts” and “soon thereafter” Nguyen “emitted a short, sensual moan,” which Heilbut believed “sounded like a noise a person would make while having an orgasm.” (Id. 32.) On August 4, 2017, Heilbut reported these events as a “sexual assault” to Equinox Fitness. (Id. § 34.) After multiple discussions with Equinox, Heilbut’s membership to Equinox Fitness was revoked, which Plaintiff was allegedly informed “was done pursuant to [Equinox’s] investigation into [Plaintiff's] sexual assault complaint.” (Id. §f] 34-36, 38-47.) B. Investigation by the SFPD regarding the Alleged Incident On August 9, 2017, Heilbut filed a complaint with the San Francisco Police Department (the 390931 2 DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY Case No.: CGC-17-561863nw “SFPD”). Pursuant to this complaint, the SFPD conducted an investigation, which included interviews with Heilbut, Nguyen, discussions with Equinox, and a review of security camera footage of the alleged events. (Iwasaki Decl, Exhibit 2 [SFPD Chronological of Investigation].) After reviewing the security camera footage of the alleged events, the SFPD found there was “[n]Jo sexual battery,” that “[dJuring the majority of the footage, there are other students in the yoga room with the victim,” and that there is “[nJothing seen in the footage that rises to the level of criminality as described by [Heilbut].” (Id. at p. 4 of 4.) Based on the results of their investigation, including a finding that the “[v]ideo footage did not corroborate [Heilbut]’s allegations,” the case was closed as “unfounded.” (Id.) Cc. Heilbut’s Treatment in Canada Following these events, Heilbut sought mental health treatment while in Canada. Heilbut first attempted to see a Dr. Erin McDonough, a Toronto doctor whom Heilbut had previously seen, but due to her unavailability, she referred Heilbut to the emergency room at Toronto Western Hospital. (Iwasaki Decl., Exhibit 6 [Heilbut 2/2/2018 Depo. at 305:1-10, 311:9-19].) While seeking treatment at Toronto Western Hospital, Heilbut made a number of statements regarding his mental condition to various personnel at the hospital. This included statements that Heilbut yy Rn § (ivasaki Decl, Exhibit 3 [CH000058]; Exhibit 4 [CH000064].) Heilbut also made statements while at the hospital to a Dr. Dorothy Kuk, which do not match up with his allegations, ee HE. wasaki Decl., Exhibit 3 [CH000062].) Til. ARGUMENT A. Letters Rogatory Are Appropriate Under California Law. Under the California Code of Civil Procedure, the Court is specifically authorized to issue letters rogatory upon a motion by the party seeking discovery. Under the California Code of Civil Procedure a “party may obtain discovery by taking an oral deposition ... in a foreign nation” and may “compel the deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying testing sampling, and any related activity.” (Cal. Code Civ. Proc. §§ 2027.010(a) and 2027.010(b).) “On motion of the party seeking to 390931 3 DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY Case No.: CGC-17-561863nw take an oral deposition in a foreign nation, the court in which the action is pending shall issue a commission, letters rogatory, or a letter of request, if it determines that one is necessary or convenient.” (Cal. Code Civ. Proc. § 2027.010(e); See also Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1113 [“[W]e note that the Civil Discovery Act (§ 2016.010 et seq.) provides a means for taking depositions of non-California residents in the state or country of their residence ... section 2027.010 provides for depositions in foreign nations.”].) B. Letters Rogatory Are Appropriate Under Canadian Law. 1. Canadian Law Permits Discovery Pursuant to Letters Rogatory. The Canadian Evidence Act and the parallel Ontario Evidence Act, permit the court to issue discovery orders pursuant to letters rogatory issued by a foreign court. (R.S., 1985, c. C-5, s. 46; R.S.O. 1990, c. E.23, s. 60). Under the Canadian Evidence Act, a court may issue an order compelling testimony upon an application by “any court or tribunal outside Canada, before which any civil, commercial or criminal matter is pending ....” (R.S., 1985, c. C-5, s. 46.) Similarly, under the Ontario Evidence Act, specifically authorizes an Ontario court to may “order the examination” of a witness as specified in a “letter of request” issued by a foreign court in relation “to an action, suit or proceeding pending in or before such foreign court or tribunal ....” (R.S.O. 1990, c. E. 23, s. 60.) Under the authority set out in Re Friction Division Products Inc. v. E.. Du Pont de Nemours & Co. Inc. et al. (1986), 56 O.R. (2d) 722 (H.C.J.), a foreign applicant must establish six factors before a Canadian court will give effect to letters rogatory. These six factors are as follows: 1. The evidence sought is relevant; 2. The evidence is necessary for trial and will be adduced at trial, if admissible; 3. The evidence is not otherwise obtainable; 4. The order sought is not contrary to public policy; 5. The documents sought are identified with reasonable specificity; 6. The production of such documents is not unduly burdensome, having in mind, what the relevant witnesses would be required to do, and produce, were the action to be tried in Canada. Td. 390931 4 DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY Case No.: CGC-17-561863nw 2. The Canadian Discovery Sought by the Letters Rogatory is Relevant and Necessary for Trial. Discovery regarding the treatment provided by Dr. Careen Coetzee, Dr. Erin McDonough, Dr. Dorothy Kuk, and Toronto Western Hospital is relevant and necessary for trial as it goes directly to Heilbut’s injury allegations and his credibility regarding his recollection of the events alleged in the Complaint. a) Dr. Careen Coetzee Heilbut received treatment from Dr. Careen Coetzee, a Toronto area therapist, both prior to the events alleged in the Complaint and after. Specifically, Heilbut testified in his deposition that J a ee HE. (vasaki Decl., Exhibit 5 [Heilbut Responses to Form Interrogatories 6.4(c); Exhibit 6 [Heilbut Depo. 02/02/2018 at 301:6-303:14].) Based on Dr. Careen Coetzee’s treatment before the alleged incident, deposition testimony related to such treatment is relevant and necessary for trial to determine whether Heilbut is attempting to assert liability for mental health issues that existed prior to the events alleged in the Complaint. Further, her treatment of Heilbut after the alleged incident is relevant and necessary for trial as such treatment is direct evidence regarding the existence and scope of Heilbut’s alleged injuries, and to the extent Heilbut described the events alleged in the Complaint, Heilbut’s records would go to his credibility. b) Dr. Erin McDonough Heilbut received treatment from Dr. Erin McDonough, a psychiatrist located in Toronto, before and after the events alleged in the Complaint. Specifically, Heilbut testified in his deposition cr (sak Decl, Exhibit 6 [Heilbut Depo. 02/02/2018 at 305:1-308:11].) Heilbut has also responded in discovery that he received treatment from her on September 25, 2017, related to his injuries. (Exhibit 5 [Heilbut Responses to Form Interrogatories 6.4(c)). Heil a 390931 5 DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY Case No.: CGC-17-561863nw E(w asaki Decl., Exhibit 6 [Heilbut Depo. 02/02/2018 at 355:20-356:15]; Exhibit 7 [CH000076].) Similar to Careen Coetzee, the treatment records for Heilbut by Dr. Erin McDonough and deposition testimony related to such records is relevant and necessary for trial as they reflect Heilbut’s mental condition prior to the events alleged in the Complaint and the treatment he received for his alleged injuries. Further, to the extent Heilbut described the events alleged in the Complaint to Dr. McDonough, any evidence of such a description would also go to Heilbut’s credibility. ¢) Dr. Dorothy Kuk During his visit to Toronto Western Hospital, Heilbut received treatment from Dr. Dorothy Kuk (misspelled as Cook in some of the medical records provided by Heilbut) in connection with his alleged injuries. While receiving treatment, Heilbut es a (52 Decl., Exhibit 3 [CH000062].) In stark contrast to the allegations contained in the Complaint, yyy ES (:.) Further, Heilbut now specifically denies making such allegations reinforcing the need for testimony regarding Heilbut’s visit. (Iwasaki Decl., Exhibit 6 [Heilbut Depo. 02/02/2018 at 361:13-24].) The records of Dr. Kuk’s treatment produced by Heilbut also indicate that a ES (1 2saki Decl, Exhibit 3 [CH000062].) Based on the factual discrepancies included in the records already provided and the statements regarding other potential disorders, deposition testimony regarding Heilbut’s treatment are relevant and necessary for trial as they go to Heilbut’s credibility and to whether any of Heilbut’s alleged injuries were pre- existing. d) Toronto Western Hospital As indicated above, Heilbut received treatment at Toronto Western Hospital, including by Dr. Kuk, in connection with his alleged injuries. The records produced thus far indicate potential discrepancies in his recollection and the possibility of pre-existing conditions affecting his injury 390931 6 DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY Case No.: CGC-17-561863nw allegations. Thus, any deposition testimony regarding any records regarding Heilbut’s treatment are relevant and necessary to this litigation and for trial as they would go to Heilbut’s credibility and any claim of damages. 3. The Canadian Discovery Sought by the Letters Rogatory is not Otherwise Obtainable, is not Contrary to Public Policy, is Identified with Reasonable Specificity, and is not Unduly Burdensome. Although Heilbut has provided some of the medical records regarding his treatment in Canada and provided an authorization for the release of the Canadian medical records related to the healthcare providers at issue, Letters Rogatory are still necessary to authenticate the records and to obtain deposition testimony regarding Heilbut’s treatment that is not reflected in the documents. This is particularly so as after extensive meet and confer correspondence, counsel for Heilbut declined to stipulate to the depositions of Heilbut’s medical treatment providers in Canada absent an order from the appropriate court in Canada compelling such depositions. (Iwasaki Decl., Exhibit 8 [11/12/2018 Munro to Avloni email], Exhibit 9 [12/05/2018 Baron to Iwasaki email].) In addition to not being obtainable absent Letters Rogatory, the discovery sought is not in conflict with any public policy as it is limited to testimony regarding Heilbut’s medical records and medical providers Heilbut himself has identified in discovery as having provided treatment in connection with the injuries alleged in the Complaint. (See e.g. Iwasaki Decl., Exhibit 5 [Heilbut Responses to Form Interrogatories 6.4(c)].) Further, the discovery sought by the Letters Rogatory is identified with reasonable specificity as the proposed Letters Rogatory includes the likely scope of deposition, which has been narrowly tailored and agreed upon, based on meet and confer discussions with counsel for Heilbut. (Iwasaki Decl., Exhibit 1 [Letters Rogatory IV.A; Iwasaki Decl. § 11.) Finally, the discovery sought is not unduly burdensome as it is within the scope of what would be permitted under Canadian law and the depositions would be subject to and conducted in accordance with Canadian law. IV. CONCLUSION For the foregoing reasons, Defendant Nguyen respectfully requests the Court approve, sign, and seal the proposed Letters Rogatory accompanying this unopposed Motion. A sample of the topics for deposition requested by Defendant Nguyen is set forth in the proposed Letters Rogatory. (Iwasaki Decl., Exhibit 1.) After the Court signs the Letters Rogatory, Defendant Nguyen requests the clerk 390931 7 DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY Case No.: CGC-17-561863nw authenticate the Court’s signature by affixing the Court’s seal and that the Letters Rogatory be returned by the clerk to Court’s signature by affixing the Court’s seal thereto, and that the Letters Rogatory thereafter be returned by the clerk to counsel for Defendant Nguyen to allow for the prompt transmittal of the Letters Rogatory to the appropriate judicial authority in Canada for execution. DATED: December 27, 2018 CARLSON, CALLADINE & PETERSON LLP By: /s/ ERIC K. IWASAKI DONALD W. CARLSON COLIN C. MUNRO ERIC K. IWASAKI Attorneys for Defendant KEVIN NGUYEN 390931 8 DEF. KEVIN NGUYEN’S MEMO. ISO MOT. FOR LETTERS ROGATORY Case No.: CGC-17-561863