Document for ARNTSEN FAMILY PARTNERSHIP, LP, et al vs. GREGORY J DAVIS, et al

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                                1 Collin J. Vierra (State Bar No. 322720)
     EIMER STAHL LLP
 2 99 Almaden Blvd., Suite 600
     San Jose, CA 95113-1605
 3 Telephone: (408) 889-1668
 4 Email: cvierra@eimerstahl.com
 5 Attorney for Plaintiffs
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 7                   SUPERIOR COURT OF THE STATE OF CALIFORNIA
                                    COUNTY OF SAN MATEO
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     Robert Arntsen; Mary Lee; Arntsen Family        Case No. 22-CIV-01148
10   Partnership, LP; Brian Christopher Dunn         Consolidated with Case No. 23-CIV-01099
     Custodianship, John Ho, and Quanyu Huang;
11                                                   Date: March 29, 2024
12                  Plaintiffs,                      Time: 9:00 a.m.
     v.                                              Dept. 24
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     David M. Bragg; Silicon Valley Real Ventures    Hon. Jeffrey Finigan
14   LLC; SVRV 385 Moore, LLC; SVRV 387
     Moore, LLC; Gregory J. Davis; Kevin Wolfe;      DECLARATION OF COLLIN J.
15   Jason Justesen; Paramont Woodside, LLC;         VIERRA IN SUPPORT OF MOTION
16   Paramont Capital, LLC; Monks Family Trust;      FOR SANCTIONS AGAINST
     TEH Capital LLC; Caproc III, LLC; WZ            DEFENDANTS DAVID M. BRAGG AND
17   Partners, LLC; McClan Trust; Wild Rose          SILICON VALLEY REAL VENTURES,
     Irrevocable Trust; Black Horse Holdings,        LLC
18   LLC; Phil Stoker; Diane Stoker; Scott O’Neil;
     Dale Huish; and DOES 1–20,
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20                  Defendants.

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              DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF MOTION FOR SANCTIONS
 1             I, Collin James Vierra, attest as follows:

 2             1.     I am over 18 years of age, of sound mind, and otherwise competent to make this
     Declaration. I am not a party to this action.
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               2.     I am an attorney at Eimer Stahl, LLP, and am Plaintiffs’ counsel of record in this
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     action.
 5             3.     I have met and conferred with opposing counsel about each of the issues that is a
 6   subject of this motion, and have made additional efforts to meet and confer which were not
 7   accepted. That included a telephonic meet-and-confer with Bragg’s counsel and eDiscovery

 8   vendor, Consilio, on November 16, 2023. During this call, I pointed out many major deficiencies
     with Bragg’s discovery responses, which were uncontested. Bragg’s counsel assured me
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     repeatedly (including over the following months) that Bragg would supplement his deficient
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     responses, but he never did. The promises he made—but did not follow through on—included that
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     he would identify documents pursuant to § 2031.280(a) (he has not identified a single one and
12   falsely claimed that no other parties have complied with this provision; to the contrary, every other
13   Plaintiff and Defendant has complied), supplement Bragg’s responses regarding his income from

14   SVRV and its affiliated projects and identify the “draws” he allegedly made “for survival,”
     produce all further withheld documents, and identify by Bates number all documents responsive
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     to Bragg’s written interrogatory responses (given his prior statements that he would support his
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     written discovery responses with Bates-stamped document productions). Bragg’s counsel also
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     refused to let me speak directly with Consilio. Bragg’s counsel also implied to Plaintiffs and the
18   IDC Commissioner that Consilio would join the parties’ January 17, 2024 IDC. It did not.
19             4.     Bragg has repeatedly claimed that Plaintiffs consented to his search terms. That is
20   utterly false. Plaintiffs provided Bragg with a base set of search parameters in September 2022,
     but Bragg has refused even to use those. Plaintiffs previously discussed those with the IDC
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     Commissioner, who agreed they were appropriate. Moreover, Bragg has repeatedly and falsely
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     claimed to have run search terms that he did not, as has been proven by Plaintiffs’ repeated
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     discovery of documents in Bragg’s possession that did hit on the search terms that Bragg allegedly
24   used but which documents Bragg withheld (and continues to withhold). Bragg has admitted to this
25   with respect to many documents, yet still has not produced them.
26             5.     Indeed, Bragg has stated on multiple occasions since this litigation began that he

27   has produced all responsive documents while knowing that this was false. He has then admitted
     each time that his prior statements were false by submitting subsequent—but still not anywhere
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                    DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF SANCTIONS MOTION
 1   near all—responsive documents.

 2          6.      Throughout this litigation, Bragg has repeatedly taken the frivolous position that he
     will not produce any missing documents unless Plaintiffs first specifically identify each such
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     document, which obviously makes no sense. The IDC Commissioner has also scolded Bragg for
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     this frivolous position.
 5          7.      Throughout these proceedings, Plaintiffs have also repeatedly provided Bragg’s
 6   counsel with uncontested evidence that Bragg was withholding responsive documents from him
 7   and spoliating evidence. Yet even though Plaintiffs and the IDC Commissioner have repeatedly

 8   told Bragg’s counsel that he should take personal responsibility for managing the collection,
     review, and production of Bragg’s documents, he has refused.
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            8.      Bragg did not produce any Bates-stamped documents until after the Court-ordered
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     November 6, 2023 deadline. And his productions were still woefully incomplete, including that
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     they contained myriad junk files designed to burden Plaintiffs. By way of example, the first
12   hundred documents in the production from Bragg’s SVRV account are all junk files. These files
13   were not selected specifically by Plaintiffs. These are literally the first hundred documents from

14   Bragg’s production, starting with Bates suffix 0000001. A true and correct copy of the first
     hundred files are attached in conjunction as Exhibit 1. This is only a small subset of the junk files
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     that Bragg provided.
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            9.      At the parties’ January 17, 2024 IDC—Plaintiffs’ fifth IDC regarding Defendants’
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     discovery abuses—Bragg’s counsel claimed that, just minutes before the IDC, he had produced
18   the four exemplar documents that Plaintiffs had provided (but no others, despite Plaintiffs
19   repeatedly informing him that numerous documents were withheld). Plaintiffs’ counsel checked
20   his email account, including his spam folder, several times during the IDC, and informed the IDC
     Commissioner and Bragg’s counsel that the emails had not arrived. Those emails still have never
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     arrived. Further, Bragg’s counsel repeatedly stated that he would produce those documents months
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     (or years) prior. As the IDC Commissioner recognized, Bragg’s counsel’s decision to withhold
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     those documents until (allegedly, at best) just minutes before the IDC was an obvious delay tactic.
24   Those documents were available and producible for years following commencement of this
25   action—and months following Plaintiffs’ identification of them—yet Bragg chose to continue
26   withholding them (and still is withholding them).

27          10.     These exemplars provided by Plaintiffs are not mere duplicates of other documents
     Plaintiffs have obtained from others, because as Bragg has acknowledged, he often Bcc’ed
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                  DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF SANCTIONS MOTION
 1   recipients on emails to conceal them from each other. Thus, Plaintiffs cannot see the full list of

 2   recipients on emails when they obtain emails only from third parties, but Bragg withholds the
     originals.
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             11.      Plaintiffs have repeatedly emphasized that these were just examples of the
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     documents Bragg was withholding, and that he continues to withhold many more. Bragg has
 5   repeatedly taken the frivolous position that he will not produce any missing documents unless
 6   Plaintiffs first specifically identify each such document, which obviously makes no sense. The
 7   IDC Commissioner has also scolded Bragg for this frivolous position.

 8           12.      Within Google Drive, Bragg has access not only to documents he created within
     his account(s), but also documents created by others that are shared with his account(s). These
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     documents are indisputably in his possession, custody, and control, yet he has refused to produce
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     them. Consilio is fully capable of producing these documents; Plaintiffs’ counsel has used Consilio
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     to extract such documents in a prior case previously. Thus, the only reasonable inference is that
12   Bragg is not authorizing and/or preventing Consilio from producing these documents, in violation
13   of Plaintiffs’ requests and this Courts’ order. Plaintiffs have reviewed hundreds of documents

14   created by other accounts and shared with Bragg’s accounts that Bragg has withheld.
             13.      Bragg also provided (but did not Bates stamp) a small number of documents in fall
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     2022 for which he failed to include attachments. Both the IDC Commissioner and the Court have
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     expressly instructed Bragg that he must also produce attachments. Many of these documents also
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     hit on mandatory search terms. Bragg still has refused to produce those emails and their
18   attachments, proving he is withholding documents and/or not running the search terms he claims
19   to have run.
20           14.      Bragg has refused to pay the $15,000 ordered by this Court for months. To avoid
     paying the sanction, he also made false statements, including under penalty of perjury, to Plaintiffs
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     and the bankruptcy court. Plaintiffs obtained evidence that instead of paying the sanction, Bragg
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     was spending tens of thousands of dollars paying back a loan from his brother, and thousands more
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     dollars on foreign vacations and other frivolities. The bankruptcy court agreed that Bragg was
24   making false statements, as it articulated in a written order, a true and correct copy of which is
25   attached hereto as Exhibit 2. Bragg finally paid an agreed-upon amount to satisfy the more than
26   three-month late sanction on January 22, 2024 (which sum did not fully cover Plaintiffs’

27   recoverable costs, but to which they nonetheless consented to resolve the dispute).
            15.       I have multiplied the hours spent preparing this motion, attending and preparing for
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                    DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF SANCTIONS MOTION
 1   the prerequisite fifth IDC, and meeting and conferring with Bragg’s counsel by phone (excluding

 2   time spent in email correspondence), and multiplied those times by my hourly billing rate at each
     such time. I excluded all other relevant time, including in identifying the numerous deficiencies in
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     Bragg’s post-sanctions responses and productions. Those calculations result in more than $13,500
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     having been incurred in connection with this motion. As noted previously, I am representing
 5   Plaintiffs on contingency in this matter.
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 9   Dated: January 22, 2024                              By: ______________________

10                                                             Collin J. Vierra
                                                               EIMER STAHL, LLP
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                                                               Attorney for Plaintiffs
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                 DECLARATION OF COLLIN J. VIERRA IN SUPPORT OF SANCTIONS MOTION