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GLENN AGRE BERGMAN & FUENTES LLP
LYN R. AGRE (CASBN 178218)
EDWARD E. SHAPIRO (CASBN 326182)
44 Montgomery Street, Suite 2410
San Francisco, CA 94104
Telephone: (415) 599-0880
lagre@glennagre.com
eshapiro@glennagre.com
Attorneys for Individual Defendants
Geoff Peterson, Timothy Cordell,
Devin Tomcik, and John Barnes
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
TRACE3, LLC, a California limited liability Case No. 23CV415833
company, Assigned to: Hon. Charles F. Adams
Plaintiff, MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF THE INDIVIDUAL
SYCOMP A TECHNOLOGY COMPANY, DEFENDANTS’ EX PARTE
INC., a California corporation; TIMOTHY APPLICATION TO CONTINUE
CORDELL, an individual; GEOFF COMPLIANCE WITH
PETERSON, an individual; DEVIN FEBRUARY 1, 2024 ORDER
TOMCIK, an individual; JOHN BARNES, an
individual; and DOES 1-10, inclusive, Date: March 29, 2024
Defendants. Time: 10:00 a.m.
Dep’t: 7
Action Filed: May 12, 2023
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER
Case No. 23CV415833
Individual Defendants Geoff Peterson, Timothy Cordell, and Devin Tomcik (the
“Individual Defendants”) respectfully submit this Memorandum of Points and Authorities in
Support of the Ex Parte Application to Continue Compliance with the Court’s February 1,
2024 Order (“Application”).
RELEVANT FACTS AND PROCEDURAL HISTORY
On February 1, 2024, the Court entered an Order Concerning Two Discovery-Related
Motions (the “Order”) directing, among other things, that the Individual Defendants produce
responsive documents to Plaintiff Trace3, LLC’s (“Trace3”) second set of requests for production
by April 1, 2024.
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There are three partially-overlapping data sources on which the Individual Defendants’
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discoverable material is located: (1) images of the Individual Defendants devices created in or
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around late May and early June 2023 by iDiscovery Solutions (“iDS”), a vendor retained by
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Defendant Sycomp A Technology Company, Inc., (2) images created by FTI Consulting, Inc.
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(“FTI”), a neutral vendor appointed to generate and store images of the Individual Defendants’
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pursuant to an August 7, 2023 Court Order, in late November and early December 2023, and (3)
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the Individual Defendants’ devices. See Declaration of Lyn R. Agre in Support of the Individual
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Defendants’ Ex Parte Application to Continue Compliance with February 1, 2024 Order
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(“Decl.”) at ¶ 3. The FTI-created images present the most complete version of these data sources
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since it was created later in time than the iDS images and because the Individual Defendants
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deleted data from their devices following the creation of the images by FTI pursuant to August 7
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and August 22, 2024 Court Orders. Id.
22
On or about February 9, 2024, the Individual Defendants began conferring with Trace3 to
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reach agreement on the appropriate data source and search terms Id. at ¶ 4. From February 9,
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2024 onward, counsel for the Individual Defendants and Trace3 exchanged proposals, but never
25
came to an agreement.. Id. at ¶ 4.
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The parties, however, did reach agreement that thesearches will be run by the Individual
27
Defendants on the images created by FTI, the neutral vendor in this matter that generated and
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER
Case No. 23CV415833
continues to store the data archive. Id. at ¶¶ 4-5. The Individual Defendants do not have access
to these images, and thus cannot begin their search for responsive material until receiving those
images from FTI. Id. at ¶ 4.
On March 19, 2024, the parties contacted FTI to begin the process of transferring the data
to the Individual Defendants’ e-discovery vendor, TransPerfect Legal Solutions (“TransPerfect”),
agreed upon by the parties to conduct the searches. Id.
On March 22, 2024, FTI informed counsel for the Individual Defendants that the total
amount of data to be searched is approximately between 3.5 and 4 terabytes. Id. at ¶ 6. On
March 26, 2024, FTI explained that, due to the size of the data transfer, a hard drive containing
10 the data could not be shipped until Thursday, March 28, 2024, and would not be delivered to
11 TransPerfect until Friday, March 29, 2024. Id. at ¶ 7. Trace3’s counsel was included on all these
12 communications. Id.
13 TransPerfect represented to the Individual Defendants’ counsel that, assuming the drive
14 containing the images is delivered on March 29, it will not be able to process the data source,
15 segregate the relevant data identified, and index and organize the segregated data for delivery to
16 Trace3 by April 1. Id. at ¶ 8.
17 On March 27, 2024, counsel for the Individual Defendants informed Trace3’s counsel that
18 the Individual Defendants are unlikely to be able to produce responsive documents to Trace3’s
19 second set of requests for production by April 1, 2024, in compliance with the Court’s February
20 1, 2024 Order. Id. at ¶ 9. This was not a surprise to Trace3, considering its agreement that the
21 Individual Defendants will use FTI images, its knowledge that the Individual Defendants would
22 need to get those images from FTI, and its inclusion in the back and forth with FTI related to
23 FTI’s delays in delivering the images. See generally, id. at ¶¶ 4-9. The parties subsequently met
24 and conferred on the issue, as well as the possibility of the Individual Defendants filing an ex
25 parte application to continue the deadline by which to comply with the February 1, 2024 Order.
26 Id. at ¶ 9. Trace3’s counsel indicated that Trace3 would oppose an extension of such deadline
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER
Case No. 23CV415833
unless the Individual Defendants immediately agreed to use search terms demanded by Trace3.
Id.
On March 28, 2024, counsel for the Individual Defendants provided Trace3’s counsel
with notice prior to 10:00 a.m – both telephonically and by email – that the Individual
Defendants would be filing the instant ex parte application. Id. at ¶ 10. Additionally, counsel for
the Individual Defendants copied Trace3’s counsel on an email exchange with Rowena Walker,
the Court’s Complex Coordinator, in which counsel for the Individual Defendants requested an
ex parte hearing and Ms. Walker responded by setting the matter for March 29, 2024 at 10:00
a.m. Id. at ¶ 10.
10 ARGUMENT
11 This Court has authority and discretion to continue the deadline by which the Individual
12 Defendants must comply with the Order to produce documents responsive to Trace3’s second set
13 of requests for production. See Code Civ. Proc. §§ 128, 187 (the Court has inherent authority to
14 regulate matters before it).
15 Good cause exists here to continue the deadline by which to produce all non-privileged
16 responsive documents and an accompanying privilege log by fourteen days. First, Trace3 agreed
17 that the Individual Defendants will search FTI images, instead of the more convenient images by
18 iDS or searching their own devices. Trace3 knew the Individual Defendants did not possess
19 these images and that they would need be received by FTI, with Trace3’s cooperation. It
20 necessarily took time to receive those images and will take time to search for responsive
21 documents to produce.
22 Second, a brief extension of the deadline by which to search for and produce documents
23 responsive to Trace3’s second set of requests for production is based on a reasonable estimate of
24 how long it will take the Individual Defendants and TransPerfect to upload the data, complete the
25 required searches, segregate the data identified during the searches, review that segregated data
26 and prepare any accompanying privilege logs, and index and organize the segregated data for
27 delivery to Trace3, assuming that the data is timely delivered. FTI has incurred an unforeseen
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER
Case No. 23CV415833
delay in sending the Individual Defendants the images for searching due to the unusually large
volume of the data at issue. Currently, FTI estimates that the data will be delivered to
TransPerfect by March 29, 2024. This delay is outside the control of the Individual Defendants.
Once the Individual Defendants and TransPerfect receive the images, the Individual
Defendants will: (i) pull all files that hit a hash value match to Trace3’s August 7, 2023 list for
trade secret and confidential files; (ii) pull all files that have no hash value but have a file name
match to a trade secret or confidential file name; (iii) remove all NIST (audio) files; and (iv)
produce all non-privileged files that remain (with a privilege log). The Individual Defendants
will begin producing responsive, non-privileged documents the week of April 1, 2024 on a
10 rolling basis.
11 Third, Trace3 will not be prejudiced by this extension. The need for this extension results
12 from the Individual Defendants agreeing to use FTI images. Had the Individual Defendants
13 instead searched their own devices, there would have been no delay. Additionally, while Trace3
14 will claim this discovery is important to oppose Defendant Sycomp’s motion for summary
15 adjudication, that motion is not scheduled to be heard until August 15. Trace3 will have more
16 than enough time to review the production.
17 Fourth, the instant ex parte application does not apply to the supplemental written
18 discovery responses that the Individual Defendants will provide to Trace3 on April 1, 2024
19 pursuant to the February 1, 2024 Order. Trace3 will therefore receive all of the Individual
20 Defendants’ written discovery requests on time.
21 Finally, the Individual Defendants are at risk of irreparable harm without an extension.
22 The Individual Defendants do not want to risk missing a Court-ordered deadline. With a two-
23 week extension, the Individual Defendants can be certain they run all appropriate searches and
24 identify all responsive materials, which also benefits Trace3. Additionally, the Individual
25 Defendants are at risk of harm by bearing the consequences for (1) cooperation with Trace3 in
26 agreeing to use FTI images, and (2) for delays by FTI in providing those images, outside the
27 Individual Defendants’ control.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER
Case No. 23CV415833
Accordingly, good cause exists to continue the deadline for the Individual Defendants to
comply with the Court’s February 1, 2024 Order by fourteen days, to April 15, 2024.
CONCLUSION
For the foregoing reasons, the Individual Defendants respectfully request that the Court
grant the Ex Parte Application to Continue Compliance with the Court’s February 1, 2024 Order.
Dated: March 28, 2024
Respectfully submitted,
GLENN AGRE BERGMAN & FUENTES LLP
10
By: /s/ Lyn R. Agre
11 LYN R. AGRE (CASBN 178218)
EDWARD E. SHAPIRO (CASBN 326182)
12 44 Montgomery Street, Suite 2410
San Francisco, CA 94104
13 Telephone: (415) 599-0880
lagre@glennagre.com
14 eshapiro@glennagre.com
15 Attorneys for Individual Defendants
Geoff Peterson, Timothy Cordell,
16 Devin Tomcik, and John Barnes
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER
Case No. 23CV415833
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GLENN AGRE BERGMAN & FUENTES LLP LYN R. AGRE (CASBN 178218) EDWARD E. SHAPIRO (CASBN 326182) 44 Montgomery Street, Suite 2410 San Francisco, CA 94104 Telephone: (415) 599-0880 lagre@glennagre.com eshapiro@glennagre.com Attorneys for Individual Defendants Geoff Peterson, Timothy Cordell, Devin Tomcik, and John Barnes SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA TRACE3, LLC, a California limited liability Case No. 23CV415833 company, Assigned to: Hon. Charles F. Adams Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL SYCOMP A TECHNOLOGY COMPANY, DEFENDANTS’ EX PARTE INC., a California corporation; TIMOTHY APPLICATION TO CONTINUE CORDELL, an individual; GEOFF COMPLIANCE WITH PETERSON, an individual; DEVIN FEBRUARY 1, 2024 ORDER TOMCIK, an individual; JOHN BARNES, an individual; and DOES 1-10, inclusive, Date: March 29, 2024 Defendants. Time: 10:00 a.m. Dep’t: 7 Action Filed: May 12, 2023 -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER Case No. 23CV415833 Individual Defendants Geoff Peterson, Timothy Cordell, and Devin Tomcik (the “Individual Defendants”) respectfully submit this Memorandum of Points and Authorities in Support of the Ex Parte Application to Continue Compliance with the Court’s February 1, 2024 Order (“Application”). RELEVANT FACTS AND PROCEDURAL HISTORY On February 1, 2024, the Court entered an Order Concerning Two Discovery-Related Motions (the “Order”) directing, among other things, that the Individual Defendants produce responsive documents to Plaintiff Trace3, LLC’s (“Trace3”) second set of requests for production by April 1, 2024. 10 There are three partially-overlapping data sources on which the Individual Defendants’ 11 discoverable material is located: (1) images of the Individual Defendants devices created in or 12 around late May and early June 2023 by iDiscovery Solutions (“iDS”), a vendor retained by 13 Defendant Sycomp A Technology Company, Inc., (2) images created by FTI Consulting, Inc. 14 (“FTI”), a neutral vendor appointed to generate and store images of the Individual Defendants’ 15 pursuant to an August 7, 2023 Court Order, in late November and early December 2023, and (3) 16 the Individual Defendants’ devices. See Declaration of Lyn R. Agre in Support of the Individual 17 Defendants’ Ex Parte Application to Continue Compliance with February 1, 2024 Order 18 (“Decl.”) at ¶ 3. The FTI-created images present the most complete version of these data sources 19 since it was created later in time than the iDS images and because the Individual Defendants 20 deleted data from their devices following the creation of the images by FTI pursuant to August 7 21 and August 22, 2024 Court Orders. Id. 22 On or about February 9, 2024, the Individual Defendants began conferring with Trace3 to 23 reach agreement on the appropriate data source and search terms Id. at ¶ 4. From February 9, 24 2024 onward, counsel for the Individual Defendants and Trace3 exchanged proposals, but never 25 came to an agreement.. Id. at ¶ 4. 26 The parties, however, did reach agreement that thesearches will be run by the Individual 27 Defendants on the images created by FTI, the neutral vendor in this matter that generated and 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER Case No. 23CV415833 continues to store the data archive. Id. at ¶¶ 4-5. The Individual Defendants do not have access to these images, and thus cannot begin their search for responsive material until receiving those images from FTI. Id. at ¶ 4. On March 19, 2024, the parties contacted FTI to begin the process of transferring the data to the Individual Defendants’ e-discovery vendor, TransPerfect Legal Solutions (“TransPerfect”), agreed upon by the parties to conduct the searches. Id. On March 22, 2024, FTI informed counsel for the Individual Defendants that the total amount of data to be searched is approximately between 3.5 and 4 terabytes. Id. at ¶ 6. On March 26, 2024, FTI explained that, due to the size of the data transfer, a hard drive containing 10 the data could not be shipped until Thursday, March 28, 2024, and would not be delivered to 11 TransPerfect until Friday, March 29, 2024. Id. at ¶ 7. Trace3’s counsel was included on all these 12 communications. Id. 13 TransPerfect represented to the Individual Defendants’ counsel that, assuming the drive 14 containing the images is delivered on March 29, it will not be able to process the data source, 15 segregate the relevant data identified, and index and organize the segregated data for delivery to 16 Trace3 by April 1. Id. at ¶ 8. 17 On March 27, 2024, counsel for the Individual Defendants informed Trace3’s counsel that 18 the Individual Defendants are unlikely to be able to produce responsive documents to Trace3’s 19 second set of requests for production by April 1, 2024, in compliance with the Court’s February 20 1, 2024 Order. Id. at ¶ 9. This was not a surprise to Trace3, considering its agreement that the 21 Individual Defendants will use FTI images, its knowledge that the Individual Defendants would 22 need to get those images from FTI, and its inclusion in the back and forth with FTI related to 23 FTI’s delays in delivering the images. See generally, id. at ¶¶ 4-9. The parties subsequently met 24 and conferred on the issue, as well as the possibility of the Individual Defendants filing an ex 25 parte application to continue the deadline by which to comply with the February 1, 2024 Order. 26 Id. at ¶ 9. Trace3’s counsel indicated that Trace3 would oppose an extension of such deadline 27 28 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER Case No. 23CV415833 unless the Individual Defendants immediately agreed to use search terms demanded by Trace3. Id. On March 28, 2024, counsel for the Individual Defendants provided Trace3’s counsel with notice prior to 10:00 a.m – both telephonically and by email – that the Individual Defendants would be filing the instant ex parte application. Id. at ¶ 10. Additionally, counsel for the Individual Defendants copied Trace3’s counsel on an email exchange with Rowena Walker, the Court’s Complex Coordinator, in which counsel for the Individual Defendants requested an ex parte hearing and Ms. Walker responded by setting the matter for March 29, 2024 at 10:00 a.m. Id. at ¶ 10. 10 ARGUMENT 11 This Court has authority and discretion to continue the deadline by which the Individual 12 Defendants must comply with the Order to produce documents responsive to Trace3’s second set 13 of requests for production. See Code Civ. Proc. §§ 128, 187 (the Court has inherent authority to 14 regulate matters before it). 15 Good cause exists here to continue the deadline by which to produce all non-privileged 16 responsive documents and an accompanying privilege log by fourteen days. First, Trace3 agreed 17 that the Individual Defendants will search FTI images, instead of the more convenient images by 18 iDS or searching their own devices. Trace3 knew the Individual Defendants did not possess 19 these images and that they would need be received by FTI, with Trace3’s cooperation. It 20 necessarily took time to receive those images and will take time to search for responsive 21 documents to produce. 22 Second, a brief extension of the deadline by which to search for and produce documents 23 responsive to Trace3’s second set of requests for production is based on a reasonable estimate of 24 how long it will take the Individual Defendants and TransPerfect to upload the data, complete the 25 required searches, segregate the data identified during the searches, review that segregated data 26 and prepare any accompanying privilege logs, and index and organize the segregated data for 27 delivery to Trace3, assuming that the data is timely delivered. FTI has incurred an unforeseen 28 -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER Case No. 23CV415833 delay in sending the Individual Defendants the images for searching due to the unusually large volume of the data at issue. Currently, FTI estimates that the data will be delivered to TransPerfect by March 29, 2024. This delay is outside the control of the Individual Defendants. Once the Individual Defendants and TransPerfect receive the images, the Individual Defendants will: (i) pull all files that hit a hash value match to Trace3’s August 7, 2023 list for trade secret and confidential files; (ii) pull all files that have no hash value but have a file name match to a trade secret or confidential file name; (iii) remove all NIST (audio) files; and (iv) produce all non-privileged files that remain (with a privilege log). The Individual Defendants will begin producing responsive, non-privileged documents the week of April 1, 2024 on a 10 rolling basis. 11 Third, Trace3 will not be prejudiced by this extension. The need for this extension results 12 from the Individual Defendants agreeing to use FTI images. Had the Individual Defendants 13 instead searched their own devices, there would have been no delay. Additionally, while Trace3 14 will claim this discovery is important to oppose Defendant Sycomp’s motion for summary 15 adjudication, that motion is not scheduled to be heard until August 15. Trace3 will have more 16 than enough time to review the production. 17 Fourth, the instant ex parte application does not apply to the supplemental written 18 discovery responses that the Individual Defendants will provide to Trace3 on April 1, 2024 19 pursuant to the February 1, 2024 Order. Trace3 will therefore receive all of the Individual 20 Defendants’ written discovery requests on time. 21 Finally, the Individual Defendants are at risk of irreparable harm without an extension. 22 The Individual Defendants do not want to risk missing a Court-ordered deadline. With a two- 23 week extension, the Individual Defendants can be certain they run all appropriate searches and 24 identify all responsive materials, which also benefits Trace3. Additionally, the Individual 25 Defendants are at risk of harm by bearing the consequences for (1) cooperation with Trace3 in 26 agreeing to use FTI images, and (2) for delays by FTI in providing those images, outside the 27 Individual Defendants’ control. 28 -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER Case No. 23CV415833 Accordingly, good cause exists to continue the deadline for the Individual Defendants to comply with the Court’s February 1, 2024 Order by fourteen days, to April 15, 2024. CONCLUSION For the foregoing reasons, the Individual Defendants respectfully request that the Court grant the Ex Parte Application to Continue Compliance with the Court’s February 1, 2024 Order. Dated: March 28, 2024 Respectfully submitted, GLENN AGRE BERGMAN & FUENTES LLP 10 By: /s/ Lyn R. Agre 11 LYN R. AGRE (CASBN 178218) EDWARD E. SHAPIRO (CASBN 326182) 12 44 Montgomery Street, Suite 2410 San Francisco, CA 94104 13 Telephone: (415) 599-0880 lagre@glennagre.com 14 eshapiro@glennagre.com 15 Attorneys for Individual Defendants Geoff Peterson, Timothy Cordell, 16 Devin Tomcik, and John Barnes 17 18 19 20 21 22 23 24 25 26 27 28 -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE COMPLIANCE WITH FEBRUARY 1, 2024 ORDER Case No. 23CV415833