Motion for Leave in Davidson Kempner Capital Management Lp v. Wow Media, Inc.| Trellis.Law

On August 28, 2023 a Exhibit,Appendix was filed involving a dispute between Davidson Kempner Capital Management Lp, and Wow Media, Inc., for Special Proceedings - Other (Petition to Quash) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

Exhibit T
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 Timothy L. Alger (SBN 160303)
tlalger@algerlawapc.com
2 Shalina K. Pannu (SBN 331833)
skpannu@algerlawapc.com
3 ALGER LAW APC
233 E. Carrillo Street, Suite C
4 Santa Barbara, CA 93101
Telephone: 805-245-8215
5

6 Attorneys for Plaintiff Wow Media Inc.

7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF LOS ANGELES
9 CENTRAL DISTRICT
10
WOW MEDIA INC., a California Case No. 23STCV15666
11
corporation,
12 NOTICE OF MOTION AND MOTION FOR
Plaintiff, LEAVE TO SERVE DISCOVERY
13
[Declaration of Timothy L. Alger with Exhibits
14 v. filed concurrently.]
15 Assigned for all purposes to Hon. Daniel
DOES 1 THROUGH 20, inclusive,
Crowley (Department 71)
16

17 Defendants. Reservation No. 290209465833

18 Date: October 9, 2023
Time: 8:30 a.m.
19 Courtroom: Department 71

20 Action filed: July 6, 2023
21 Trial date: None set

27 MOTION FOR LEAVE TO SERVE DISCOVERY

28
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 PLEASE TAKE NOTICE that on October 9, 2023, at 8:30 a.m. in Department 71 of the

2 above-titled Court, located at 111 N. Hill Street, Los Angeles, California 90012, Plaintiff Wow

3 Media Inc. (“Plaintiff” or “Wow Media”), will, and does hereby, move for an Order granting
leave to serve discovery notwithstanding the 20-day hold on deposition notices after service of
4
summons in Section 2025.210(b) of the Code of Civil Procedure.
5
Plaintiff filed this action against Does 1 Through 20 because it lacks information
6
regarding the true identities of the Defendants, who tortiously interfered with a business
7
transaction between Wow Media and two private equity partnerships, Davidson Kempner Capital
8
Management, LP (“Davidson Kempner”) and InfraNext Partners, LLC. Plaintiff wishes to
9
conduct discovery to learn the tortfeasors’ true names, promply amend its Complaint to
10
substitute those Defendants’ actual names for the fictional names, and proceed in a timely
11 manner with the prosecution of this lawsuit.
12 Case law is unclear whether the 20-day hold in Section 2025.210(b) indefinitely prohibits
13 service of third-party subpoenas where all of the defendants are sued under fictional names

14 pursuant to Section 474 of the Code of Civil Procedure and cannot be served with a summons.

15 Nevertheless, Section 2025.210(b) states that leave proceed with deposition notices

16 notwithstanding the 20-day hold may be granted without notice upon a showing of good cause.
Wow Media believes it has shown good cause for immediate discovery, because further delay in
17
identifying the Defendants is likely to result in loss of evidence and unduly delay the progress of
18
this action. Absent an order of this Court, Wow Media will be unable to identify the tortfeasors,
19
whose identities are known to (but being withheld by) Davidson Kempner and, Wow Media
20
believes, the California Department of Transportation.
21
On September 12, 2023, Plaintiff brought an ex parte application for leave under Section
22
2025.210(b), but this Court was dark and the application was considered and denied by Judge
23
Serena Murillo on the ground that Plaintiff had not shown irreparable harm and leave should be
24 sought by noticed motion. On September 26, this Court granted Plaintiff’s subsequent ex parte
25 application to advance the reserved date for a noticed motion from January 29, 2024 (the earliest
26 date available online) to October 9, 2023.

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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 Good cause exists for an Order granting leave to serve discovery and approving the

2 Subpoena issued in this case by Plaintiff on July 21, 2023, because Wow Media desires – and is

3 obligated under law – to act diligently (1) in determining the real names of the defendants sued
under the fictional names “Does 1 through 20, Inclusive,” (2) in amending its Complaint to
4
replace the fictional names with the actual names of the Defendants, and (3) in serving the
5
Defendants with a Summons and the Complaint. Wow Media has filed a Complaint with viable
6
claims under California law and has submitted to this Court (and included in an Affidavit
7
supporting the Subpoena) detailed facts showing prima facie claims for interference with
8
business relations and unfair business practices.
9
Accordingly, Wow Media requests that the Court issue an Order (1) granting leave to
10
serve third-party discovery in this action, and (2) approving the Subpoena issued out of Los
11 Angeles County Superior Court directed at Davidson Kempner dated July 21, 2023 (“Los
12 Angeles Subpoena”), pursuant to which a New York subpoena was issued on July 27, 2023
13 (“New York Subpoena”). Davidson Kempner has moved to quash the New York Subpoena in

14 New York state court based in part on the 20-day hold in Section 2025.210(b), and Plaintiff

15 wishes to put that particular California procedural issue to rest. The Los Angeles Subpoena and

16 the New York Subpoena are attached to the concurrently filed Declaration of Timothy L. Alger
as Exhibits B and C, respectively. (The Complaint is attached to the Declaration as Exhibit A.)
17
This Motion is made pursuant to California Code of Civil Procedure §§ 2017.010,
18
2020.020, 2020.510, and 2025.210(b), on the grounds stated above and in the accompanying
19
Memorandum of Points and Authorities, as well as the Alger Declaration and its Exhibits, the
20
Court’s file concerning this matter, and such oral and other documentary evidence as may be
21
presented upon the hearing of the Motion.
22
DATED: October 2, 2023
23 ALGER LAW APC

25 Timothy L. Alger
26
Attorneys for Plaintiff Wow Media Inc
27
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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 TABLE OF CONTENTS

2 I. INTRODUCTION----------------------------------------------------------------------------------------- 7
3
II. FACTUAL BACKGROUND -------------------------------------------------------------------------- 9
4
III. ARGUMENT -------------------------------------------------------------------------------------------16
5
A. PLAINTIFF HAS PROPERLY USED CCP § 474 TO INCLUDE
6 DEFENDANTS IN THE ACTION UNDER FICTITIOUS NAMES …………..16

7 B. THE DISCOVERY SOUGHT IS MATERIAL AND NECESSARY …….........17

8 C. THE SUBPOENA IS PROCEDURALLY PROPER …………………………...18

9 D. THERE IS NOTHING "SHAM" ABOUT THIS LAWSUIT...…………………19

10 IV. CONCLUSION -----------------------------------------------------------------------------------------21
11

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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 TABLE OF AUTHORITIES

2 CASES

3 A.N, a Minor v. County of Los Angeles, 171 Cal.App.4th 1058, 1065-69 (2009) ------------------17
Bernson v. Browning-Ferris Indus., 7 Cal.4th 926, 936 (1994) ---------------------------------------17
4
Catsouras v. Dept. of Cal. Highway Patrol, 181 Cal.App.4th 856, 863, 889 (2010)---------------20
5 Copp v. Paxton, 45 Cal.App.4th 829, 844 (1996) -------------------------------------------------------19
6 Cuff v. Grossmont Union High School Dist., 221 Cal.App.4th 582, 594 (2013) --------------------20

7 Fuller v. Tucker, 84 Cal.App.4th 1163, 1172 (2000) ---------------------------------------------------16
Gillan v. City of San Marino, 147 Cal.App.4th 1033, 1051 (2007) -----------------------------------20
8
Grinnell Fire Prot. Sys. Co. v. American Sav. & Loan Assn., 183 Cal.App.3d 352, 359 (1986) -18
9 Hahn v. New York Brake LLC, 77 Cal.App.5th 895, 897-98 (2022) ---------------------------------16
10 Kilgore v. Younger, 30 Cal.3d 770, 778 (1982) ---------------------------------------------------------19

11 McQuirk v. Donnelly, 189 F.3d 793, 800-01 (9th Cir. 1999) ------------------------------------- 19, 20
Neary v. Regents of the Univ. of Cal., 185 Cal.App.3d 1136, 1142-43 (1986) ----------------------19
12
Optical Surplus, Inc. v. Superior Court, 228 Cal.App.3d 776, 783 (1991) --------------------------18
13 Sanborn v. Chronicle Publ’g Co., 18 Cal.3d 406 (1976)-----------------------------------------------19
14
STATUTES
15
Civ. Code § 47(a) --------------------------------------------------------------------------------------- 19, 20
16 Civ. Proc. Code § 474 ---------------------------------------------------------------------------------------16

17 Civ. Proc. Code § 1986 -------------------------------------------------------------------------------------18
Civ. Proc. Code § 1987 -------------------------------------------------------------------------------------18
18
Civ. Proc. Code § 2025.210 -------------------------------------------------------------------------- passim
19
Govt. Code § 820.2 ------------------------------------------------------------------------------------------20
20 Govt. Code § 822.2 ------------------------------------------------------------------------------------------20
21 Govt. Code §§ 6250 et seq. ---------------------------------------------------------------------------------13

22 OTHER AUTHORITIES
23 3 CAL. AFFIRMATIVE DEF. § 41:3 (2d ed 2023)----------------------------------------------------------19
CAL. JUDGES BENCHBOOK CIV. PROC. DISCOVERY § 2.14 ---------------------------------------------19
24

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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 I. INTRODUCTION

2 The law is unclear whether the 20-day hold on deposition notices in Section 2025.210 of

3 the Code of Civil Procedure perpetually restricts the service of subpoenas where all of the
defendants in a Complaint are sued under fictitious names. Plaintiff Wow Media Inc. (“Wow
4
Media”) is seeking leave to conduct discovery in light of the contention of a third party,
5
Davidson Kempner Capital Management, LP (“Davidson Kempner”) that Section 2025.210(b)
6
applies to this action, even though no Defendants can be served, and makes a subpoena duces
7
tecum served in New York unenforceable. Davidson Kempner has acknowledged it knows the
8
true identity of at least one of the probable Defendants.
9
Accordingly, Wow Media requests that the Court issue an Order (1) granting leave to
10
serve third-party discovery in this action, and (2) approving the Subpoena issued out of Los
11 Angeles County Superior Court directed at Davidson Kempner dated July 21, 2023 (“Los
12 Angeles Subpoena”), pursuant to which a New York subpoena was issued on July 27, 2023
13 (“New York Subpoena”). The Los Angeles Subpoena and the New York Subpoena are attached

14 to the Declaration of Timothy L. Alger (“Alger Decl.”) as Exhibits B and C, respectively.

15 Wow Media has filed this Motion for Leave because its ex parte application for leave

16 was denied by Judge Murillo without any opportunity for argument on September 12, 2023 on
the ground that Plaintiff failed to show irreparable harm. Wow Media believes that it is, in fact,
17
suffering irreparable harm because of the delay in conducting discovery necessary to identify the
18
Defendants in this action. Further, Section 2025.210(b) states that leave may be granted even
19
without notice upon a showing of good cause, which Plaintiff has made. Wow Media believes it
20
has shown good cause for immediate discovery because the delay in identifying the Defendants
21
is likely to result in loss of evidence and unduly delay the progress of this action.
22
Wow Media is obligated under law to act diligently (1) in determining the real names of
23
the Defendants sued under the fictional names “Does 1 through 20, Inclusive,” (2) in amending
24 its Complaint to replace the fictional names with the actual names of the Defendants, and (3) in
25 serving the Defendants with a Summons and the Complaint. Wow Media desires to take
26 discovery designed to determine Defendants’ real names, as well as discovery as to the merits of

27
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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 its claims. Both Davidson Kempner and the California Department of Transporation

2 (“Caltrans”) have critical information about the identity of the Defendants and the merits of the

3 claims. Wow Media currently intends to depose the person most knowledgeable at Davidson
Kempner and the person most knowledgeable at Caltrans. It expects to take additional discovery
4
and will promptly amend its Complaint to replace certain Doe defendants with the actual names
5
of defendants identified in the discovery.
6
This lawsuit arises from the leaking by Caltrans and the improper dissemination of a non-
7
public report prepared by the Federal Highway Administration (“FHWA”) that stated – falsely –
8
that nine digital advertising displays owned by Wow Media located on Inglewood surface streets
9
lacked state permits and were therefore illegal. In actuality, all nine displays are properly
10
permitted, erected and operated pursuant to contracts with the City of Inglewood, which shares in
11 the millions of dollars in the revenue generated by advertising on the displays. Caltrans knew at
12 the time the FHWA report was provided to Davidson Kempner, and subsequently confirmed to
13 the City of Inglewood, that the report was false, and the Wow Media displays do not fall within

14 Caltrans’ jurisdiction, do not require state permits, and do not violate federal sign regulations.

15 The Wow Media displays have special, unique value because they are seen by visitors to

16 the new SoFi Stadium used by two NFL teams, the Los Angeles Rams and the Los Angeles
Chargers, the Forum entertainment arena, and the new basketball arena being built for the Los
17
Angeles Clippers. The displays are also viewed by many drivers heading to and from Los
18
Angeles International Airport. This revenue that Wow Media shares with the City of Inglewood
19
is a vital source of funds for the community.
20
Naturally, then, Wow Media’s contracts with the City of Inglewood – ever since their
21
approval during a public process in 2015 – have attracted the attention of competitors in the
22
outdoor advertising business and other stakeholders in the City and its sports and entertainment
23
venues, as well as state and federal officials. It is unsurprising that currently unknown
24 individuals and entities would be thrilled to see Wow Media fail due to loss of financing and see
25 the City of Inglewood open the market up to Wow Media’s competitors.
26

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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 Within days of delivery of the erroneous report by FHWA to Caltrans, and long before

2 Caltrans disclosed the report to Inglewood city officials and the public, the report was leaked and

3 then delivered by an unknown party to Davidson Kempner. Although it has steadfastly refused
to identify the source of the report, Davidson Kempner used the report as justification to
4
withdraw from a deal to acquire 50 percent of Wow Media. Davidson Kempner obtained and
5
was using the erroneous FHWA report for its private business decisions before Caltrans even
6
prepared and sent to FHWA a letter responding to the report and disputing its findings. Emails
7
produced by Caltrans pursuant to public records requests establish that the Director of Caltrans
8
was not even briefed on the FHWA report – which raised the serious threat of a curtailment of
9
federal highway funding for California because of alleged non-compliance with federal law –
10
until a week after Davidson Kempner had the report in its possession.
11 Wow Media has filed suit against unknown defendants for tortious interference and is
12 now endeavoring to identify the defendants and amend its Complaint. Wow Media believes, and
13 has alleged on information and belief, that a competitor or other party interested in entering the

14 outdoor advertising market in Inglewood used the FHWA report to torpedo Wow Media’s

15 agreement with Davidson Kempner and Infranext. Also, the leak and sharing of the report may

16 have been a breach of non-disclosure agreements relating to possible investments in Wow
Media. Informal efforts to learn the identity of its source from Davidson Kempner failed,
17
causing Wow Media to (1) file a Petition for Writ of Mandamus against Caltrans under the
18
California Public Records Act, which is pending before Judge Kin in Department 82, and (2) file
19
the Complaint for damages now pending in this Court.
20
II. FACTUAL BACKGROUND
21
The Parties, the Report, and Related Events
22
Wow Media owns eleven (11) outdoor, large-format advertising structures bearing
23
twenty (20) networked digital displays throughout Inglewood, pursuant to agreements with the
24 City. [Alger Decl., ¶ 3.] These agreements authorize Wow Media to erect, maintain, and
25 manage the display of paid advertising on these billboards which are located on sites owned by
26 both the City and by private owners in Inglewood, and Wow Media shares the revenue with the

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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 city. [Id.] Inglewood has a high volume of traffic to its sports facilities, including the new

2 multi-billion dollar So-Fi Stadium, a new basketball arena, and Los Angeles International

3 Airport. [Id.] Wow Media competed with other outdoor advertising companies in 2015 to
obtain these valuable agreements, and because of Inglewood’s unique location, Wow Media’s
4
competitors are persisting to this day in efforts with state legislators and local officials to obtain
5
signage rights in the community. [Id. ¶¶ 4-5.]
6
In July 2021, Wow Media began to solicit and entertain offers for a large investment in
7
the company. [Id. at ¶ 9.] Each potential purchaser was required to execute a non-disclosure
8
agreement ( “NDA”) which provided, in relevant part, that:
9
Unless otherwise required by law . . . neither you nor any of your Access Persons
10 will, without the prior written consent of [Wow Media], disclose to any person
(other than Access Persons) any information about the Transaction, or the terms,
11 conditions, or other facts relating thereto, including, but not limited to, the fact
that the discussions are taking place with respect thereto, or the status thereof, or
12 the fact that the Proprietary Information has been made available to you.
13 [Id. (emphasis added).]

14 Davidson Kempner and InfraNext Partners, LLC (“InfraNext”) each executed NDAs.

15 [Id. at ¶ 10, Exhs. D, E.] One of Wow Media’s direct competitors, Clear Channel Holdings, Inc.

16 (“Clear Channel”), also executed such an NDA. [Id. at ¶ 11, Exh. F.] Clear Channel is one of

the world’s largest outdoor advertising companies with more than 7,000 displays throughout
17
Southern California. [Id.] Davidson Kempner has publicly disclosed that it has significant
18
holdings of Clear Channel stock. [Id.]
19
In the spring of 2022, Wow Media reached an agreement in principal with Davidson
20
Kempner and InfraNext in which Davidson Kempner and InfraNext would take a 50 percent
21
equity stake in Wow Media, while leaving current management in place. The parties executed a
22
term sheet for the deal. [Id. at ¶ 12.]
23 On June 16, 2022, the FHWA issued a lengthy report titled “Outdoor Advertising
24 Review” (the “OAR”). [Id. at ¶¶ 7, 14, Exh. G (transmittal letter from FHWA and cover page of
25 report).] The OAR falsely asserted that digital displays owned and operated by Wow Media on
26 surface streets in Inglewood fell within the jurisdiction of Caltrans, lacked the required permits

27
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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 from Caltrans, and were therefore unlawful. [Id. at ¶¶ 14-15.] The OAR and a letter from the

2 FHWA raised the possibility that federal highway funds for California would be reduced because

3 of these and other alleged violations of federal regulations. [Id.] The OAR was not public, and,
after its delivery to Caltrans on June 23, 2022, the OAR went under internal review by Caltrans.
4
[Id. at ¶ 14 and Exh. H ((June 23, 2022 email from Deputy Division Chief Sri Balasubramanian
5
instructing other Caltrans officials not to discuss it “with others internally or externally”).]
6
Caltrans ultimately told the FHWA on August 17, 2022 that the statements in the OAR
7
regarding Wow Media’s signs were false and that Caltrans does not (and cannot under current
8
California law) require permits for such surface street displays, notwithstanding recent changes
9
to federal highway regulations. [Id. at ¶ 16, Exh. I.] Balasubramanian confirmed this with City
10
officials in a meeting and followup email: “The Federal Highway Administration (FHWA) ODA
11 Review Report referenced nine WOW Media displays in the City of Inglewood. However, at
12 this time, Caltrans has determined that it lacks prescriptive and enforcement jurisdiction over
13 local roads, which are part of the National Highway System but not part of the State Highway

14 System. Caltrans’ current State legislated oversight authority is limited to State Highway System

15 with regards to ODA enforcement.” [Id. at ¶ 17, Exh. J.]

16 What is remarkable about all this – and a central aspect of this lawsuit – is the fact that
just as Caltrans was getting going on its internal review and many weeks Caltrans responded to
17
the FHWA and before local officials were even informed of the report, the OAR was provided
18
by an unknown person or entity to Louis Littman, a principal at Davidson Kempner in New
19
York. This occurred no later than July 7, 2022, and possibly prior to July 1, 2022 – just one
20
week after the OAR was delivered to Caltrans by the FHWA for review and a response, and
21
while the OAR was not public. [Id. at ¶¶ 17-19 and Exh. H.] It was nearly two months between
22
the delivery of the OAR to Caltrans and Caltrans responded to FHWA, and even longer before
23
Caltrans informed Inglewood City officials – who were critical stakeholders in the issue – about
24 the OAR’s findings.
25 That the OAR was improperly transmitted to Davidson Kempner – in a manner that was
26 not privileged, as discussed below – is supported by internal emails at Caltrans. George Anzo,

27
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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 Jr., Caltrans’ ODA Permits Manager, evidently did not meet with Heidi Quintrell, Acting Chief

2 of Enroachment and Outdoor Advertising Permits, regarding the OAR prior to July 7, 2022. [Id.

3 at ¶ 22 and Exh. L.] And Tony Tavares, the Caltrans Director, was not briefed on the OAR until
July 12, 2022. [Id. at ¶ 22 and Exhs. M and N.] Emails show that officials at Caltrans were
4
putting the OAR on the agenda for an upcoming Traffic Operations Board meeting on July 22,
5
2022. [Id. at ¶ 22 and Exh. O]. These discussions ultimately resulted in Tavares’ response to the
6
FHWA on August 17, 2022, and the transmittal of the OAR by Caltrans to the mayor of
7
Inglewood on August 31, 2023. [Id. at ¶¶ 14-21, Exh. K.]
8
However, Davidson Kempner and InfraNext’s attorneys were asking specific questions of
9
Wow Media about the issues raised in the OAR in an email on July 1, 2022, suggesting that they
10
had the OAR in-hand within one week of its receipt by Caltrans on June 23, 2022. [Id. at ¶ 18.]
11 On July 7, 2022, Littman contacted Scott Krantz, Wow Media’s Chief Executive Officer, and
12 Mark Boidman, Wow Media’s investment banker, and confronted them about the contents of the
13 OAR. [Id. at ¶ 24.] Neither Krantz nor Boidman had any knowledge at that time about the

14 issuance of the OAR, and they believed that Littman was referring to a prior draft from 2020 that

15 was never finalized (the “2020 Draft”). [Id.] On July 8, 2022, Littman sent a copy of the final

16 OAR to InfraNext by email, but declined to inform InfraNext of the source of the document. [Id.
at ¶ 25.]
17
On July 11, 2022, on a call involving representatives from all parties involved in the
18
investment, Littman began to talk about the OAR and its contents, apparently under the
19
assumption that Wow Media was aware of it; in fact, Wow Media was not aware of it and had
20
not received or reviewed it. [Id. at ¶ 26.] Littman informed Krantz that he would not reveal his
21
source because it was given to him “in confidence.” [Id.] Littman provided a copy of the OAR
22
to Wow Media the following day. [Id..] This copy was reviewed by a forensic specialist who
23
determined it was scrubbed of metadata, so its source could not be identified. [Id. at ¶ 27.]
24 On July 13, 2022, Littman told Krantz that the deal to acquire half of Wow Media was
25 dead because of the OAR. [Id. at ¶ 28.]
26

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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 The Dispute and Resulting Lawsuits

2 Given that the improper dissemination of the OAR, with its false statements about Wow

3 Media’s sign assets, was the sole cause of Davidson Kempner’s withdrawal of their investment,
Wow Media has sought to discover how and why the OAR was provided to Davidson Kempner.
4
[Id. at ¶¶ 30-31.] Wow Media served Caltrans with requests for information under the California
5
Public Records Act and on FHWA under the federal Freedom of Information Act. [Id.] Wow
6
Media requested disclosure of all communications regarding the OAR with entities and
7
individuals outside of the respective agencies. [Id.] Caltrans produced a very small number of
8
internal emails; FHWA has not responded to the request. [Id.] Due to Caltrans’ refusal to
9
comply with the full request, Wow Media filed a Petition for Writ of Mandamus under
10
Government Code section 6520 et seq., entitled Wow Media Inc. v. California Department of
11 Transportation, L.A. Superior Court Case No. 22STCP04006 (the “Mandamus Action”). Wow
12 Media served a subpoena in New York for documents and deposition testimony on Davidson
13 Kempner in connection with the Mandamus Action. Third-party discovery is highly unusual in

14 public records mandamus proceedings, and Davidson Kempner prevailed on a motion to quash.

15 (Wow Media is not questioning that decision in the Mandamus Action in this Application. The

16 discovery now being sought is substantially different from that served in connection with the
Mandamus Action.)
17
On July 6, 2023, Wow Media filed the Complaint in this action (“Civil Action”), which
18
asserts, in sum and substance, that the Doe Defendants unlawfully and purposefully interfered
19
with Wow Media’s relationship and transaction with Davidson Kempner and InfraNext, directly
20
causing, and intending to cause, the withdrawal of the investment in Wow Media. [Exhibit A to
21
the Alger Declaration.] As alleged in the Complaint, a person at Caltrans or at FHWA leaked the
22
OAR to an outside party, who then delivered it to Littman at Davidson Kempner. Further, upon
23
information and belief, the manner in which Davidson Kempner obtained the OAR violated the
24 NDA because Davidson Kempner must have necessarily disclosed to its source that it was
25 planning an investment in Wow Media; without such disclosure, there would be no reason for the
26 unnamed source to provide the OAR to Davidson Kempner.

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28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 The Complaint asserts causes of action for Intentional Interference with Prospective

2 Economic Advantage; Negligent Interference with Prospective Economic Advantage; and

3 Violation of Business & Professions Code §§ 17200, et seq., and seeks actual, punitive, and
compensatory damages, injunctive relief, and costs of suit including reasonable attorneys’ fees.
4
The New York Subpoena
5
On July 27, 2023, the Clerk of the Court of the State of New York, County of New York,
6
issued a Judicial Subpoena for Appearance & Duces Tecum (the “New York Subpoena”) to
7
Davidson Kemper, pursuant to CPLR § 3119, the Uniform Interstate Depositions and Discovery
8
Act, which provides simple procedures for courts in one state to issue subpoenas for out-of-state
9
depositions and document requests if both states have adopted the Act. (California has adopted
10
the Act at section 2029.100 et seq. of the Code of Civil Procedure.) [Alger Decl. Exh. C.] The
11 Subpoena seeks testimony and documents from Davidson Kempner as a non-party, and the
12 deposition topics and requests go directly to the heart of the allegations in the Civil Action.
13 The requests and topics for seek the following information: (1) Davidson Kempner’s

14 receipt of a draft of the OAR prepared by the FHWA in 2020 and (2) the final June 2022 OAR;

15 (3) communications between Davidson Kempner and Caltrans relating to the 2020 Draft; (4)

16 communications between Davidson Kempner and FHWA relating to the final OAR; (5)
communications between Davidson Kempner and any person relating to both Wow Media and
17
either the 2020 Draft or (6) the final OAR; (7) communications between Davidson Kempner and
18
any person relating to both the investment in Wow Media and either the 2020 Draft or (8) the
19
final OAR; (9) communications relating Davidson Kempner’s decision not to make the
20
investment; and (10) the original, first copy of the final June 2022 OAR received by Davidson
21
Kempner, without any alteration or deletion of metadata. [Id.]
22
The Subpoena was supported by the Affidavit of Timothy L. Alger, and a copy of the
23
Complaint in this action. [Id.] Wow Media served the New York Subpoena on Davidson
24 Kempner (by agreement of counsel) on August 1, 2023, with a deposition date of August 28,
25 2023. [Alger Decl. at ¶ 33.]
26

27
13
28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 On August 21, 2023, Davidson Kempner served its Responses and Objections to the New

2 York Subpoena—though, there were no actual responses at all. Instead, Davidson Kempner

3 objected to every single request for production and every single deposition topic on the grounds
that the New York Subpoena is “nearly identical” to that served arising out of the Writ of
4
Mandamus Action, which is not correct. Davidson Kempner asserted that the Subpoena does not
5
seek any information that is material or necessary for the prosecution or defense of this Civil
6
Action, that this lawsuit is a “bogus filing,” that the Subpoena is premature, that the Subpoena
7
seeks trade secrets or other confidential information, and that the Subpoena is overbroad,
8
oppressive, unduly burdensome, and unreasonable, among other boilerplate objections.
9
On August 25, 2023, counsel for Wow Media and counsel for Davidson Kempner
10
engaged in a meet and confer with respect to the New York Subpoena. [Alger Decl. at ¶ 35.] To
11 address Davidson Kempner’s objections and possibly avoid burdening the Court, counsel for
12 Wow Media offered to break the deposition into two phases. [Id.] In the first, Wow Media
13 would inquire regarding the source of the OAR. [Id.] Then, after learning this information,

14 Wow Media would evaluate whether to proceed with the Civil Action in California and, if it did,

15 it would resume Davidson Kempner’s deposition and cover the other matters relevant to the Civil

16 Action. [Id.] Wow Media offered to do this two-phase deposition, with a targeted first phase, by
stipulation out of concern that Davidson Kempner would otherwise resist a second deposition to
17
obtain other information necessary to pursue Wow Media’s claims in the Civil Action. [Id.]
18
Davidson Kempner’s counsel was dismissive of the two-phase proposal but stated he
19
would provide an answer to Wow Media by the end of the following business day, August 28,
20
2023. [Id.] Instead of contacting Wow Media’s counsel on August 28, or producing a witness,
21
Davidson Kempner filed a Petition for Protective Order and to Quash Subpoena, with an
22
extremely delayed return date of October 27, 2023, in an obvious effort to delay the deposition in
23
New York and the progress of the Civil Action here in California. [Id.]
24 As the Court can see from Wow Media’s submissions in support of this Application, the
25 Action is not “bogus” or a “sham,” and complies with California law, and the Los Angeles
26 Subpoena is not overbroad, unduly burdensome, or oppressive, and complies with all relevant

27
14
28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 procedural requirements and rules, and seeks discoverable information from Davidson Kempner

2 that is directly relevant to the allegations in this Action. To resolve any dispute regarding Wow

3 Media’s July 21, 2023 subpoena issued in California was valid, Wow Media seeks an Order from
the Court approving that subpoena and granting leave to proceed with discovery.
4
III. ARGUMENT
5
A. PLAINTIFF HAS PROPERLY USED CCP § 474 TO INCLUDE DEFENDANTS
6
IN THE ACTION UNDER FICTITIOUS NAMES
7
Section 474 of the Code of Civil Procedure allows a plaintiff who is ignorant of a
8
defendant's identity to commence suit before the statute of limitations runs by using a fictitious
9
name for that defendant and then amending the complaint when the defendant's true name is
10
discovered. If the statute's requirements are satisfied, the amendment relates back and the
11 substituted defendant is considered to have been a party from the action's start. Hahn v. New
12 York Brake LLC, 77 Cal.App.5th 895, 897-98 (2022).
13 “Code of Civil Procedure ‘[s]ection 474 allows a plaintiff in good faith to delay suing

14 particular persons as named defendants until [plaintiff] has knowledge of sufficient facts to cause

15 a reasonable person to believe liability is probable.’ ‘[S]ection 474 does not impose upon the

16 plaintiff a duty to go in search of facts she does not actually have at the time she files her original
pleading.’” Fuller v. Tucker, 84 Cal.App.4th 1163, 1172 (2000) (citations omitted).
17
There is simply no legitimate argument that this litigation is “bogus” or Wow Media is
18
precluded from using the Uniform Interstate Deposition and Discovery Act to obtain information
19
vital to the claims stated in the Complaint – including the identities of alleged wrongdoers.
20
Section 474 provides for the “Doe” defendant mechanism for exactly this type of situation,
21
where it is abundantly clear that one or more unknown parties have wronged Wow Media and
22
efforts to learn their identities have thus far been unsuccessful. Further, Wow Media’s
23
Complaint and the Alger Affidavit establish that Davidson Kempner has in its possession
24 information that is critical to Wow Media’s identification of the defendants. Davidson Kempner
25 is fighting hard to block its deposition because it simply does not want to disclose its source for
26 the OAR, for reasons regarding which we can only speculate.

27
15
28 MOTION FOR LEAVE TO SERVE DISCOVERY
FILED: NEW YORK COUNTY CLERK 10/20/2023 07:39 PM INDEX NO. 158535/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/20/2023

1 Wow Media is obligated to act diligently in amending its Complaint and this Court will

2 expect this Action to proceed without delay. A.N, a Minor v. County of Los Angeles, 171

3 Cal.App.4th 1058, 1065-69 (

Case Info

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Nicholas Moyne Track Judge’s New Case

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Document Filed Date

October 20, 2023

Case Filing Date

August 28, 2023

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Exhibit,Appendix: Davidson Kempner Capital Management Lp v. Wow Media, Inc.

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