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1 KEKER & VAN NEST LLP
JOHN W. KEKER - # 49092
2 |) jkeker@kvn.com
WARREN A. BRAUNIG - #243884 ELECTRONICALLY
3 {| wbraunig@kvn.com FILED
BENJAMIN BERKOWITZ - # 244441 Superior Court of California,
4 || bberkowitz@kvn.com County of San Francisco
633 Battery Street
5 || San Francisco, CA 94111-1809 JAN 22 2015
Telephone: 415 391 5400 BY: NOELIA RIVERA
Facsimile: 415 397 7188 Deputy Clerk
PETER S. MYERS - # 115113
psmyers@myersurbatsch,com
MATTHEW R. MRAULE - # 263433
mmraule@myersurbatsch.com
625 Market Street, 4th Floor
10 || San Francisco, California 94105
Phone: (415) 896-1500
11 |} Fax: (415) 979-0761
6
7\|| MYERS URBATSCH P.C.
8
9
12 || Attorneys for Petitioners and Respondents
BRUCE H. QVALE, FAMILY TRUSTEE AND
13 |] RESPONDENT LAURA HIURA
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 IN AND FOR THE COUNTY OF SAN FRANCISCO
16 }] In the Matter of the Case No. PTR-13-297016
17}| Kathryn C, Qvale Exempt Marital Trust, BRUCE H. QVALE AND LAURA
dated January 31, 2006 HIURA’S SEPARATE STATEMENT IN
18 SUPPORT OF MOTION TO COMPEL
PRODUCTION OF DOCUMENTS
19
Date: March 18, 2015
20 Time: — 2:00 p.m,
Dept.: Probate, Room 204
21 Judge: Hon. Andrew Y.S. Cheng
22 [Date approved by Rosie]
Miles Jeffrey Qvale, individually and as
23 |] trustee
24 vs.
25 || Bruce H. Qvale, Laura Hiura, and Does 1-10
In the Matter of the Case No. PTR-13-297017
Kathryn C. Qvale Nonexempt Marital Trust,
27 |} dated January 31, 2006
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case Nos. PTR-13-297016, PTR-13-297017, PTR-13-297143
8941621 || Miles Jeffrey Qvale, individually and as
trustee
2
VS.
3
Bruce H. Qvale, Laura Hiura, and Does 1-10
4
5 In the Matter of the Case No. PTR-13-297143
Kjell H. Qvale Survivor’s Trust, dated
February 27, 2005
trustee
6
7\|" Miles Jeffrey Qvale, individually and as
8
vs.
9
Bruce H. Qvale, Laura Hiura, and Does 1-10
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case Nos. PTR-13-297016, PTR-13-297017, PTR-13-297143
894162894162
Pursuant to California Rule of Court 3.1345, Respondents Bruce H. Qvale (“Bruce”) and
Laura Hiura (“Laura”) (collectively, “Respondents”) submit this Separate Statement in support of
their Motion to Compel Production of Documents.
Petitioner Miles Jeffrey Qvale (“Jeff”) filed three separate petitions to overturn his father
Kjell H. Qvale’s (“Kjell”) estate plan.’ Jeff contends that Kjell was mistaken or unduly
influenced by Bruce and Laura when Kjell executed certain estate plan documents in 2012 and
2013 as part of his longstanding plan to minimize the tax burden on his estate and to leave control
of his family business, Qvale Auto Group (“QAG”) to Bruce.
On October 9, 2014, Respondents propounded their first set of Requests for Production of
Documents (“RFPs”) on Jeff, which are set forth below. See Declaration of Briggs Matheson in
Support of Motion to Compel Compliance with First Set of Requests for Production of
Documents Served on Miles Jeffrey Qvale (“Matheson Decl.”), Ex. A (Respondents’ RFPs). Jeff
responded to Respondents’ RFP’s on November 10, 2014 with the objections and responses set
forth below, See id. Ex. B. Jeff served supplemental responses to Respondents’ RFPs on
December 17, 2014. /d. Ex. G. Jeff made his initial production of documents on December 19,
2014, and his final production on January 16 and 17, 2015. /d., Exs. H & O. On January 13 and
16, 2015, Jeff served privilege logs purporting to identify the documents and communications
withheld from his productions. Jd., Exs. L & N.
I DEFINITIONS FOR REQUESTS FOR PRODUCTION (SET ONE)
1. “DOCUMENT” or “DOCUMENTS” shall mean a writing, as defined in Evidence
Code Section 250, and includes without limitation the original or a copy of handwriting,
typewriting, printing, photostating, photographing, and every other means of recording upon any
tangible thing, any form of COMMUNICATION or representation, including letters, words,
pictures, memoranda, reports, studies, calendar or diary entries, telephone conversations and
conferences, summaries, records of any conferences or meetings (including lists of persons
attending meetings or conferences), text messages, emails, instant messages, opinion letters,
drafts, notes, graphs, charts, spreadsheets, tabulations, analyses, statistical or informational
"Jeff's petitions were later consolidated as the above-captioned case.
1
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
accumulations, accounting records of any kind, computer disks, sounds, or symbols, or
combinations of them, any electronically stored information and any record thereby created,
regardless of the manner in which the DOCUMENT has been stored, including, but not limited
to, electronic storage.
2. “CONCERNING” shall mean referring to, alluding to, responding to, relating to,
connected with, commenting on, in respect of, involving, about, regarding, discussing, showing,
evidencing, describing, mentioning, reflecting, analyzing, in connection with, pertaining to, and
constituting. A DOCUMENT or COMMUNICATION may concern a certain person or subject
without that person being the sole or even significant topic of that DOCUMENT or
COMMUNICATION.
3. “ESTATE PLAN” shall mean any exercise of the power of appointment held by
Kjell H. Qvale with respect to the Kathryn C, Qvale Exempt Marital Trust, including but not
limited to the exercise executed by Kjell H. Qvale on January 30, 2013, any exercise of the power
of appointment held by Kjell H. Qvale with respect to the Kathryn C. Qvale Nonexempt Marital
Trast, including but not limited to the exercise executed by Kjell H. Qvale on January 30, 2013,
any amendment or restatement of the 2002 Restatement of the Trust Agreement for the Kjell and
Kathryn Qvale Family Trust dated June 2, 1983, including but not limited to the Amended and
Restated Declaration of Trust for the Kjell H. Qvale Survivor's Trust executed on January 30,
2013, and any execution of a will or codicil, including but not limited to the Second Codicil to
December 5, 2002 Will of Kjell H. Qvale executed on October 10, 2012.
4. “YOU” shall mean Petitioner Miles Jeffrey Qvale, individually or as trustee for
any trusts; and any and all of his present or former agents, representatives, and anyone else acting
or purporting to act on his behalf.
5. “COMMUNICATION” or “COMMUNICATIONS” shall mean every manner or
means of disclosure, transfer, or exchange of information, whether orally, by DOCUMENT, or in
any other manner, and whether face to face, or by telephone, mail, email, computer, personal
delivery, text message, or otherwise.
2
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
6. “2013 TRUST DOCUMENTS?” shall refer to the January 30, 2013 instruments
executed by Kjell H. Qvale, specifically: an Exercise of Power of Appointment as to the
Nonexempt Marital Trust; an Exercise of Power of Appointment as to the Exempt Marital Trust;
and an Amended and Restated Declaration of Trust for the Survivor's Trust.
7. “2012 REDEMPTION AGREEMENT” shall refer to the September 1, 2012 Stock
Redemption Agreement attached as Exhibit A to Miles Jeffrey Qvale’s Petition for Conveyance
of Property Belonging to Trust: for Damages and Other Relief for Financial Elder Abuse, filed in
S8.F. Superior Court, Case No. PTR-13-297016.
8. “PERSON” shall mean any natural person, firm, entity, corporation, partnership,
proprietorship, joint venture, other form of organization or arrangement, and government and
government agency of every nature or type.
Il. REQUESTS FOR PRODUCTION (SET ONE) AND RESPONSES IN DISPUTE
REQUEST FOR PRODUCTION NO, 1:
All DOCUMENTS identified in YOUR responses to the First Set of Special
Interrogatories to Miles Jeffrey Qvale, served on October 9, 2014,
RESPONSE TO REQUEST FOR PRODUCTION NO. 1:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges. Responding Party objects to the term “identified” as vague and ambiguous. As
Propounding Parties are aware, there has been discovery pending against them, or their agents, for
months for which no information has been forthcoming, as such, discovery and investigation are
still continuing. Responding Party further objects to this Request to the extent it seeks information
that is either a matter of public record or is equally (and in some instances only) available to the
Propounding Parties from its own or its agents’ files, public sources or from other third parties, or
has already been provided to the Propounding Parties, or is already in their possession, custody or
control.
3
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 1:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges, including the right of privacy. Responding Party objects to the term "identified" as
vague and ambiguous, As Propounding Parties are aware, there has been discovery pending
against them, or their agents, for months for which very little information has been forthcoming,
as such, discovery and investigation are still continuing. Responding Party further objects to this
Request to the extent it seeks information that Responding Party have already produced in this
litigation, or to the extent the Request seeks the production of pleadings, which are either a matter
of public record or are equally available to the Propounding Parties from public sources, other
third parties, or are already in their possession, custody or control.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
REASON WHY RESPONSE SHOULD BE COMPELLED:
On October 9, 2014, Respondents propounded their first set of Special Interrogatories on
Jeff, which seek information directly related to Jeff's efforts to overturn his father Kjell H.
Qvale’s (“Kjell”) estate plan” That same day, Respondents propounded this RFP, which requests
all documents identified in Jeff's responses to Respondents’ Special Interrogatories. In his
; Respondents’ First Set of Special Interrogatories Served on Jeff is attached as Exhibit | to this
Separate Statement.
4
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
response and supplemental response to this RFP, and in subsequent meet-and-confer
correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this
REP. See Matheson Decl., Exs. B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to
Challa); Ex. F (Dec. 12, 2014 Challa Letter to Berkowitz).
Despite this representation, Jeff has improperly withheld documents on the basis of
attorney-client privilege, attorney-work-product privilege, and the common-interest doctrine. The
attorney-client privilege applies only to communications by a person who consults a lawyer in the
lawyer’s professional capacity. See Cal, Evid. Code § 951. It “does not protect information
coming from a third party who is not a client unless the person is acting as the client’s agent.”
Grosslight v. Super. Ct., 72 Cal. App. 3d 502, 506 (1977); see also Rigolfi v. Super. Ct., 215 Cal.
App. 2d 497 (1963). Several entries in Jeff’s privilege logs list communications between Jeff or his
counsel and third-parties who are neither clients nor agents working to further Jeff's litigation,
including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to these third parties
waives attorney-client privilege and work-product protection. See OXY Res. Cal. LLC v. Super.
Ct, 115 Cal. App. 4th 874, 891 (2004). Jeff has also improperly withheld communications
involving Malone — an independent co-trustee — and Montgomery (Malone’s attorney) based on
the common interest doctrine. Jeff cannot withhold such documents because his communications
with Malone and Montgomery did not “further the interests” of co-parties “aligned on the same
side in an investigation or litigation.” Mckesson HBOC, Inc. v. Super. Cr., 115 Cal App. 4th
1229, 1237-39 (2004),
Finally, Jeff has failed to provide complete privilege logs identifying the documents he is
withholding on the basis of privilege, as required under Code of Civil Procedure Section
2031.240(c). In fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation
communications with his counsel and unnamed third parties, whom he refers to as “agents
assisting in the obtaining of legal advice.” Matheson Decl., Ex. N (Jan. 16, 2015 privilege log).
By refusing to provide the required “specific factual” information, Jeff has made it impossible for
Respondents or the Court to determine whether any of these “exclude[d]” communications are, in
fact, privileged. Hernandez v. Super. Ct., 112 Cal. App. 4th 285, 292 (2003); Cal. Code. Civ.
5
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
Proc. § 2031.240(c).
Accordingly, the Court should compel Jeff to produce all documents responsive to this
REP, including documents and communications improperly withheld on privilege grounds.
REQUEST FOR PRODUCTION NO, 2:
All DOCUMENTS CONCERNING the ESTATE PLAN.
RESPONSE TO REQUEST FOR PRODUCTION NO, 2:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges. As Propounding Parties are aware, there has been discovery pending against them, or
their agents, for months for which no information has been forthcoming, as such, discovery and
investigation are still continuing. Responding Party further objects to this Request to the extent it
seeks information that is either a matter of public record or is equally (and in some instances
only) available to the Propounding Parties from its own or its agents' files, public sources or from
other third parties, or has already been provided to the Propounding Parties, or is already in their
possession, custody or control.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 2:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges, including the right of privacy. As Propounding Parties are aware, there has been
discovery pending against them, or their agents, for months for which very little information has
6
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
been forthcoming, as such, discovery and investigation are still continuing. Responding Party
further objects to this Request to the extent it seeks information that Responding Party have
already produced in this litigation, or to the extent the Request seeks the production of pleadings,
which are either a matter of public record or are equally available to the Propounding Parties from
public sources, other third parties, or are already in their possession, custody or control.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
REASON WHY RESPONSE SHOULD BE COMPELLED:
Jeff seeks to overturn Kjell’s estate plan on the grounds that Kjell was in a weakened
mental state and his intentions were subverted and overcome by Respondents when he executed
certain estate plan documents in 2012 and 2013 as part of his longstanding efforts to minimize the
tax burden on his estate and to leave control of his family business, QAG, to Bruce. This RFP
specifically targets these issues by seeking documents directly related to Kjell’s estate plan.
In his response and supplemental response to this RFP, and in subsequent meet-and-confer
correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this
RFP. See Matheson Decl., Exs. B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to
Challa); Ex. F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has
improperly withheld documents on the basis of attorney-client privilege, attorney-work-product
privilege. and the common-interest doctrine. The attorney-client privilege applies only to
communications by a person who consults a lawyer in the lawyer’s professional capacity. See
Cal. Evid. Code § 951. It “does not protect information coming from a third party who is not a
client unless the person is acting as the client’s agent.” Grosslight, 72 Cal. App. 3d at 506; see
also Rigolfi, 215 Cal. App. 2d 497. Several entries in Jeff's privilege logs list communications
between Jeff or his counsel and third-parties who are neither clients nor agents working to further
Jeff's litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to
these third parties waives attorney-client privilege and work-product protection. See OXY Res.
7
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
Cal. LLC, 115 Cal. App. 4th at 891.
Jeff has also improperly withheld communications involving Malone — an independent co-
trustee ~ and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff
cannot withhold such documents because his communications with Malone and Montgomery did
not “further the interests” of co-parties “aligned on the same side in an investigation or litigation.”
Mckesson HBOC, 115 Cal App. 4th at 1237-39.
Finally, Jeff has failed to provide complete privilege logs identifying the documents he is
withholding on the basis of privilege, as required under Code of Civil Procedure Section
2031.240(c). in fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation
communications with his counsel and unnamed third parties, whom he refers to as “agents
assisting in the obtaining of legal advice.” Matheson Decl., Ex. N (Jan. 16, 2015 privilege log).
By refusing to provide the required “specific factual” information, Jeff has made it impossible for
Respondents or the Court to determine whether any of these “exclude[d]” communications are, in
fact, privileged. Hernandez, 112 Cal. App. 4th at 292; Cal. Code. Civ. Proc. § 2031.240(c).
Accordingly, the Court should compel Jeff to produce all documents responsive to this
REP, including documents and communications improperly withheld on privilege grounds.
REQUEST FOR PRODUCTION NO. 3:
All COMMUNICATIONS between YOU and any PERSON CONCERNING the
ESTATE PLAN.
RESPONSE TO REQUEST FOR PRODUCTION NO. 3:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges. As Propounding Parties are aware, there has been discovery pending against them, or
their agents, for months for which no information has been forthcoming, as such, discovery and
investigation are still continuing. Responding Party further objects to this Request to the extent it
seeks information that is either a matter of public record or is equally (and in some instances
8
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
only) available to the Propounding Parties from its own or its agents' files, public sources or from
other third parties, or has already been provided to the Propounding Parties, or is already in their
possession, custody or control. Responding Party objects to this Request as overbroad and unduly
burdensome in that it is not limited in scope. Responding Party further objects to this Request to
the extent it is seeking documents regarding oral communications.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party’s possession, custody or control after a
reasonably diligent search and good faith inquiry.
SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 3:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges, including the right of privacy. As Propounding Parties are aware, there has been
discovery pending against them, or their agents, for months for which very little information has
been forthcoming, as such, discovery and investigation are still continuing. Responding Party
further objects to this Request to the extent it seeks information that Responding Party have
already produced in this litigation, or to the extent the Request seeks the production of pleadings,
which are either a matter of public record or are equally available to the Propounding Parties from
public sources, other third parties, or are already in their possession, custody or control.
Responding Party objects to this Request as overbroad and unduly burdensome in that it is not
limited in scope. Responding Party further objects to this Request to the extent it is seeking
documents regarding oral communications. Responding Party will produce documents of such
oral communications (subject to the above objections) that already exist, but will not create new
documents concerning such oral communications.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
9
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
REASON WHY RESPONSE SHOULD BE COMPELLED:
Jeff seeks to overturn Kjell’s estate plan on the grounds that Kjell was in a weakened
mental state and his intentions were subverted and overcome by Respondents when he executed
certain estate plan documents in 2012 and 2013 as part of his longstanding efforts to minimize the
tax burden on his estate and to leave control of his family business, QAG, to Bruce. This RFP
specifically targets these issues by seeking documents directly related to Kjell’s estate plan.
In his response and supplemental response to this RFP, and in subsequent meet-and-confer
correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this
REP. See Matheson Decl., Exs, B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to
Challa); Ex. F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has
improperly withheld documents on the basis of attorney-client privilege, attorney-work-product
privilege, and the common-interest doctrine. The attorney-client privilege applies only to
communications by a person who consults a lawyer in the lawyer’s professional capacity. See
Cal. Evid. Code § 951. It “does not protect information coming from a third party who is not a
client unless the person is acting as the client’s agent.” Grosslight, 72 Cal, App. 3d at 506; see
also Rigolfi, 215 Cal. App. 2d 497. Several entries in Jeff's privilege logs list communications
between Jeff or his counsel and third-parties who are neither clients nor agents working to further
Jeff's litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to
these third parties waives attorney-client privilege and work-product protection. See OXY Res.
Cal. LLC, 115 Cal. App. 4th at 891.
Jeff has also improperly withheld communications involving Malone — an independent co-
trustee - and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff
cannot withhold such documents because his communications with Malone and Montgomery did
not “further the interests” of co-parties “aligned on the same side in an investigation or litigation.”
Mckesson HBOC, 115 Cal App. 4th at 1237-39.
Finally, Jeff has failed to provide complete privilege logs identifying the documents he is
10
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
withholding on the basis of privilege, as required under Code of Civil Procedure Section
2031.240(c). In fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation
communications with his counsel and unnamed third parties, whom he refers to as “agents
assisting in the obtaining of legal advice.” Matheson Decl., Ex. N (Jan. 16, 2015 privilege log).
By refusing to provide the required “specific factual” information, Jeff has made it impossible for
Respondents or the Court to determine whether any of these “exclude[d]” communications are, in
fact, privileged. Hernandez, 112 Cal. App. 4th at 292; Cal. Code. Civ. Proc. § 2031 .240(c).
Accordingly, the Court should compel Jeff to produce all documents responsive to this
REP, including documents and communications improperly withheld on privilege grounds.
REQUEST FOR PRODUCTION NO. 4:
All DOCUMENTS CONCERNING the 2013 TRUST DOCUMENTS.
RESPONSE TO REQUEST FOR PRODUCTION NO. 4:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges. As Propounding Parties are aware, there has been discovery pending against them, or
their agents, for months for which no information has been forthcoming, as such, discovery and
investigation are still continuing. Responding Party further objects to this Request to the extent it
seeks information that is either a matter of public record or is equally (and in some instances
only) available to the Propounding Parties from its own or its agents’ files, public sources or from
other third parties, or has already been provided to the Propounding Parties, or is already in their
possession, custody or control.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
II
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 4:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges, including the right of privacy. As Propounding Parties are aware, there has been
discovery pending against them, or their agents, for months for which very little information has
been forthcoming, as such, discovery and investigation are still continuing. Responding Party
further objects to this Request to the extent it seeks information that Responding Party have
already produced in this litigation, or to the extent the Request seeks the production of pleadings,
which are either a matter of public record or are equally available to the Propounding Parties from
public sources, other third parties, or are already in their possession, custody or control.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
REASON WHY RESPONSE SHOULD BE COMPELLED:
Jeff seeks to overturn Kjell’s estate plan on the grounds that Kjell was in a weakened
mental state and his intentions were subverted and overcome by Respondents when he executed
certain estate plan documents in 2012 and 2013 as part of his longstanding efforts to minimize the
tax burden on his estate and to leave control of his family business, QAG, to Bruce. This RFP
specifically targets these issues by seeking documents directly related to the estate plan
documents Jeff now seeks to overturn.
In his response and supplemental response to this RFP, and in subsequent meet-and-confer
correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this
RFP. See Matheson Decl., Exs. B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to
Challa); Ex. F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has
improperly withheld documents on the basis of attorney-client privilege, attorney-work-product
12
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
privilege. and the common-interest doctrine. The attorney-client privilege applies only to
communications by a person who consults a lawyer in the lawyer’s professional capacity. See
Cal. Evid. Code § 951. It “does not protect information coming from a third party who is not a
client unless the person is acting as the client’s agent.” Grosslight, 72 Cal. App. 3d at 506; see
also Rigolfi, 215 Cal. App. 2d 497. Several entries in Jeff's privilege logs list communications
between Jeff or his counsel and third-parties who are neither clients nor agents working to further
Jeff’s litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to
these third parties waives attorney-client privilege and work-product protection. See OXY Res.
Cal. LLC, 115 Cal. App. 4th at 891.
Jeff has also improperly withheld communications involving Malone — an independent co-
trustee ~ and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff
cannot withhold such documents because his communications with Malone and Montgomery did
not “further the interests” of co-parties “aligned on the same side in an investigation or litigation.”
Mckesson HBOC, 115 Cal App. 4th at 1237-39,
Finally, Jeff has failed to provide complete privilege logs identifying the documents he is
withholding on the basis of privilege, as required under Code of Civil Procedure Section
2031,.240(c). In fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation
communications with his counsel and unnamed third parties, whom he refers to as “agents
assisting in the obtaining of legal advice.’ Matheson Decl., Ex. N (Jan. 16, 2015 privilege log).
By refusing to provide the required “specific factual” information, Jeff has made it impossible for
Respondents or the Court to determine whether any of these “exclude[d]” communications are, in
fact, privileged. Hernandez, 112 Cal. App. 4th at 292; Cal. Code. Civ. Proc. § 2031.240(c).
Accordingly, the Court should compel Jeff to produce all documents responsive to this
RFP, including documents and communications improperly withheld on privilege grounds.
REQUEST FOR PRODUCTION NO, 5:
All COMMUNICATIONS between YOU and any PERSON concerning the 2013 TRUST
DOCUMENTS.
13
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
RESPONSE TO REQUEST FOR PRODUCTION NO. 5:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges. As Propounding Parties are aware, there has been discovery pending against them, or
their agents, for months for which no information has been forthcoming, as such, discovery and
investigation are still continuing. Responding Party further objects to this Request to the extent it
seeks information that is either a matter of public record or is equally (and in some instances
only) available to the Propounding Parties from its own or its agents' files, public sources or from
other third parties, or has already been provided to the Propounding Parties, or is already in their
possession, custody or control. Responding Party objects to this Request as overbroad and unduly
burdensome in that it is not limited in scope. Responding Party further objects to this Request to
the extent it is seeking documents regarding oral communications.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 5:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges, including the right of privacy. As Propounding Parties are aware, there has been
discovery pending against them, or their agents, for months for which very little information has
been forthcoming, as such, discovery and investigation are still continuing. Responding Party
further objects to this Request to the extent it seeks information that Responding Party have
already produced in this litigation, or to the extent the Request seeks the production of pleadings,
14
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
which are either a matter of public record or are equally available to the Propounding Parties from
public sources, other third parties, or are already in their possession, custody or control,
Responding Party objects to this Request as overbroad and unduly burdensome in that it is not
limited in scope. Responding Party further objects to this Request to the extent it is seeking
documents regarding oral communications. Responding Party will produce documents of such
oral communications (subject to the above objections) that already exist, but will not create new
documents concerning such oral communications.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
REASON WHY RESPONSE SHOULD BE COMPELLED:
Jeff seeks to overturn Kjell’s estate plan on the grounds that Kjell was in a weakened
mental state and his intentions were subverted and overcome by Respondents when he executed
certain estate plan documents in 2012 and 2013 as part of his longstanding efforts to minimize the
tax burden on his estate and to leave control of his family business, QAG, to Bruce. This RFP
specifically targets these issues by seeking documents directly related to the estate plan
documents Jeff now seeks to overturn.
In his response and supplemental response to this RFP, and in subsequent meet-and-confer
correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this
RFP. See Matheson Decl., Exs. B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to
Challa); Ex. F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has
improperly withheld documents on the basis of attorney-client privilege, attorney-work-product
privilege, and the common-interest doctrine. The attorney-client privilege applies only to
communications by a person who consults a lawyer in the lawyer’s professional capacity. See
Cal. Evid. Code § 951. It “does not protect information coming from a third party who is not a
client unless the person is acting as the client’s agent.” Grosslight, 72 Cal. App. 3d at 506; see
also Rigolfi, 215 Cal. App. 2d 497. Several entries in Jeff's privilege logs list communications
1s
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
between Jeff or his counsel and third-parties who are neither clients nor agents working to further
Jeff's litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to
these third parties waives attorney-client privilege and work-product protection. See OXY Res.
Cal. LLC, 115 Cal. App. 4th at 891.
Jeff has also improperly withheld communications involving Malone — an independent co-
trustee ~ and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff
cannot withhold such documents because his communications with Malone and Montgomery did
not “further the interests” of co-parties “aligned on the same side in an investigation or litigation,”
Mckesson HBOC, 115 Cal App. 4th at 1237-39.
Finally, Jeff has failed to provide complete privilege logs identifying the documents he is
withholding on the basis of privilege, as required under Code of Civil Procedure Section
2031.240(c). in fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation
communications with his counsel and unnamed third parties, whom he refers to as “agents
assisting in the obtaining of legal advice.” Matheson Decl., Ex. N (Jan. 16, 2015 privilege log).
By refusing to provide the required “specific factual” information, Jeff has made it impossible for
Respondents or the Court to determine whether any of these “exclude[d]” communications are, in
fact, privileged. Hernandez, 112 Cal. App. 4th at 292; Cal. Code. Civ. Proc. § 2031.240(c).
Accordingly, the Court should compel Jeff to produce all documents responsive to this
REP, including documents and communications improperly withheld on privilege grounds.
REQUEST FOR PRODUCTION NO. 6:
All DOCUMENTS CONCERNING the 2012 REDEMPTION AGREEMENT.
RESPONSE TO REQUEST FOR PRODUCTION NO. 6:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges. As Propounding Parties are aware, there has been discovery pending against them, or
their agents, for months for which no information has been forthcoming, as such, discovery and
16
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
investigation are still continuing. Responding Party further objects to this Request to the extent it
seeks information that is either a matter of public record or is equally (and in some instances
only) available to the Propounding Parties from its own or its agents! files, public sources or from
other third parties, or has already been provided to the Propounding Parties, or is already in their
possession, custody or control.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party’s possession, custody or control after a
reasonably diligent search and good faith inquiry.
SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 6:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges, including the right of privacy. As Propounding Parties are aware, there has been
discovery pending against them, or their agents, for months for which very little information has
been forthcoming, as such, discovery and investigation are still continuing. Responding Party
further objects to this Request to the extent it seeks information that Responding Party have
already produced in this litigation, or to the extent the Request seeks the production of pleadings,
which are either a matter of public record or are equally available to the Propounding Parties from
public sources, other third parties, or are already in their possession, custody or control.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
REASON WHY RESPONSE SHOULD BE COMPELLED:
Jeff seeks to overturn Kjell’s estate plan on the grounds that Kjell was in a weakened
mental state and his intentions were subverted and overcome by Respondents when he executed
17
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
certain estate plan documents in 2012 and 2013 as part of his longstanding efforts to minimize the
tax burden on his estate and to leave control of his family business, QAG, to Bruce. This RFP
specifically targets these issues by seeking documents directly related to the estate plan
documents Jeff now seeks to overturn.
In his response and supplemental response to this RFP, and in subsequent meet-and-confer
correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this
RFP. See Matheson Decl., Exs. B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to
Challa); Ex, F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has
improperly withheld documents on the basis of attorney-client privilege, attorney-work-product
privilege, and the common-interest doctrine. The attorney-client privilege applies only to
communications by a person who consults a lawyer in the lawyer’s professional capacity. See
Cal. Evid. Code § 951. It “does not protect information coming from a third party who is not a
client unless the person is acting as the client’s agent.” Grosslight, 72 Cal. App. 3d at 506; see
alse Rigolfi, 215 Cal, App. 2d 497, Several entries in Jeff's privilege logs list communications
between Jeff or his counsel and third-parties who are neither clients nor agents working to further
Jeff's litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to
these third parties waives attorney-client privilege and work-product protection. See OXY Res.
Cal. LLC, 115 Cal. App. 4th at 891.
Jeff has also improperly withheld communications involving Malone — an independent co-
trustee — and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff
cannot withhold such documents because his communications with Malone and Montgomery did
not “further the interests” of co-parties “aligned on the same side in an investigation or litigation.”
Mckesson HBOC, 115 Cal App. 4th at 1237-39.
Finally, Jeff has failed to provide complete privilege logs identifying the documents he is
withholding on the basis of privilege, as required under Code of Civil Procedure Section
2031.240(c). In fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation
communications with his counsel and unnamed third parties, whom he refers to as “agents
assisting in the obtaining of legal advice.” Matheson Decl., Ex. N (Jan. 16, 2015 privilege log).
18
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
By refusing to provide the required “specific factual” information, Jeff has made it impossible for
Respondents or the Court to determine whether any of these “exclude[d]” communications are, in
fact, privileged. Hernandez, 112 Cal. App. 4th at 292; Cal. Code. Civ. Proc. § 2031.240(c).
Accordingly, the Court should compel Jeff to produce all documents responsive to this
RFP, including documents and communications improperly withheld on privilege grounds.
REQUEST FOR PRODUCTION NO. 7:
All COMMUNICATIONS between YOU and any PERSON CONCERNING the 2012
REDEMPTION AGREEMENT.
RESPONSE TO REQUEST FOR PRODUCTION NO. 7:
Responding Party incorporates its Preliminary Responses and Objections as if fully set
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges. As Propounding Parties are aware, there has been discovery pending against them, or
their agents, for months for which no information has been forthcoming, as such, discovery and
investigation are still continuing. Responding Party further objects to this Request to the extent it
seeks information that is either a matter of public record or is equally (and in some instances
only) available to the Propounding Parties from its own or its agents' files, public sources or from
other third parties, or has already been provided to the Propounding Parties, or is already in their
possession, custody or control. Responding Party objects to this Request as overbroad and unduly
burdensome in that it is not limited in scope. Responding Party further objects to this Request to
the extent it is seeking documents regarding oral communications.
Subject to and without waiving the foregoing objections and the Preliminary Responses
and Objections, Responding Party responds as follows: Responding Party agrees to produce such
documents that are found to be in Responding Party's possession, custody or control after a
reasonably diligent search and good faith inquiry.
SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 7:
Responding Party incorporate§ its Preliminary Responses and Objections as if fully set
19
SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162
forth here. In addition to the Preliminary Responses and Objections above, Responding Party
objects to each Request to the extent it seeks information protected by the attorney-client
privilege (including the common-interest doctrine), the attorney work product doctrine, or similar
privileges, including the right of privacy. As Propounding Parties are aware, there has been
discovery pending against them, or their agents, for months for
Preview
1 KEKER & VAN NEST LLP JOHN W. KEKER - # 49092 2 |) jkeker@kvn.com WARREN A. BRAUNIG - #243884 ELECTRONICALLY 3 {| wbraunig@kvn.com FILED BENJAMIN BERKOWITZ - # 244441 Superior Court of California, 4 || bberkowitz@kvn.com County of San Francisco 633 Battery Street 5 || San Francisco, CA 94111-1809 JAN 22 2015 Telephone: 415 391 5400 BY: NOELIA RIVERA Facsimile: 415 397 7188 Deputy Clerk PETER S. MYERS - # 115113 psmyers@myersurbatsch,com MATTHEW R. MRAULE - # 263433 mmraule@myersurbatsch.com 625 Market Street, 4th Floor 10 || San Francisco, California 94105 Phone: (415) 896-1500 11 |} Fax: (415) 979-0761 6 7\|| MYERS URBATSCH P.C. 8 9 12 || Attorneys for Petitioners and Respondents BRUCE H. QVALE, FAMILY TRUSTEE AND 13 |] RESPONDENT LAURA HIURA 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 IN AND FOR THE COUNTY OF SAN FRANCISCO 16 }] In the Matter of the Case No. PTR-13-297016 17}| Kathryn C, Qvale Exempt Marital Trust, BRUCE H. QVALE AND LAURA dated January 31, 2006 HIURA’S SEPARATE STATEMENT IN 18 SUPPORT OF MOTION TO COMPEL PRODUCTION OF DOCUMENTS 19 Date: March 18, 2015 20 Time: — 2:00 p.m, Dept.: Probate, Room 204 21 Judge: Hon. Andrew Y.S. Cheng 22 [Date approved by Rosie] Miles Jeffrey Qvale, individually and as 23 |] trustee 24 vs. 25 || Bruce H. Qvale, Laura Hiura, and Does 1-10 In the Matter of the Case No. PTR-13-297017 Kathryn C. Qvale Nonexempt Marital Trust, 27 |} dated January 31, 2006 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case Nos. PTR-13-297016, PTR-13-297017, PTR-13-297143 8941621 || Miles Jeffrey Qvale, individually and as trustee 2 VS. 3 Bruce H. Qvale, Laura Hiura, and Does 1-10 4 5 In the Matter of the Case No. PTR-13-297143 Kjell H. Qvale Survivor’s Trust, dated February 27, 2005 trustee 6 7\|" Miles Jeffrey Qvale, individually and as 8 vs. 9 Bruce H. Qvale, Laura Hiura, and Does 1-10 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case Nos. PTR-13-297016, PTR-13-297017, PTR-13-297143 894162894162 Pursuant to California Rule of Court 3.1345, Respondents Bruce H. Qvale (“Bruce”) and Laura Hiura (“Laura”) (collectively, “Respondents”) submit this Separate Statement in support of their Motion to Compel Production of Documents. Petitioner Miles Jeffrey Qvale (“Jeff”) filed three separate petitions to overturn his father Kjell H. Qvale’s (“Kjell”) estate plan.’ Jeff contends that Kjell was mistaken or unduly influenced by Bruce and Laura when Kjell executed certain estate plan documents in 2012 and 2013 as part of his longstanding plan to minimize the tax burden on his estate and to leave control of his family business, Qvale Auto Group (“QAG”) to Bruce. On October 9, 2014, Respondents propounded their first set of Requests for Production of Documents (“RFPs”) on Jeff, which are set forth below. See Declaration of Briggs Matheson in Support of Motion to Compel Compliance with First Set of Requests for Production of Documents Served on Miles Jeffrey Qvale (“Matheson Decl.”), Ex. A (Respondents’ RFPs). Jeff responded to Respondents’ RFP’s on November 10, 2014 with the objections and responses set forth below, See id. Ex. B. Jeff served supplemental responses to Respondents’ RFPs on December 17, 2014. /d. Ex. G. Jeff made his initial production of documents on December 19, 2014, and his final production on January 16 and 17, 2015. /d., Exs. H & O. On January 13 and 16, 2015, Jeff served privilege logs purporting to identify the documents and communications withheld from his productions. Jd., Exs. L & N. I DEFINITIONS FOR REQUESTS FOR PRODUCTION (SET ONE) 1. “DOCUMENT” or “DOCUMENTS” shall mean a writing, as defined in Evidence Code Section 250, and includes without limitation the original or a copy of handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any tangible thing, any form of COMMUNICATION or representation, including letters, words, pictures, memoranda, reports, studies, calendar or diary entries, telephone conversations and conferences, summaries, records of any conferences or meetings (including lists of persons attending meetings or conferences), text messages, emails, instant messages, opinion letters, drafts, notes, graphs, charts, spreadsheets, tabulations, analyses, statistical or informational "Jeff's petitions were later consolidated as the above-captioned case. 1 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 accumulations, accounting records of any kind, computer disks, sounds, or symbols, or combinations of them, any electronically stored information and any record thereby created, regardless of the manner in which the DOCUMENT has been stored, including, but not limited to, electronic storage. 2. “CONCERNING” shall mean referring to, alluding to, responding to, relating to, connected with, commenting on, in respect of, involving, about, regarding, discussing, showing, evidencing, describing, mentioning, reflecting, analyzing, in connection with, pertaining to, and constituting. A DOCUMENT or COMMUNICATION may concern a certain person or subject without that person being the sole or even significant topic of that DOCUMENT or COMMUNICATION. 3. “ESTATE PLAN” shall mean any exercise of the power of appointment held by Kjell H. Qvale with respect to the Kathryn C, Qvale Exempt Marital Trust, including but not limited to the exercise executed by Kjell H. Qvale on January 30, 2013, any exercise of the power of appointment held by Kjell H. Qvale with respect to the Kathryn C. Qvale Nonexempt Marital Trast, including but not limited to the exercise executed by Kjell H. Qvale on January 30, 2013, any amendment or restatement of the 2002 Restatement of the Trust Agreement for the Kjell and Kathryn Qvale Family Trust dated June 2, 1983, including but not limited to the Amended and Restated Declaration of Trust for the Kjell H. Qvale Survivor's Trust executed on January 30, 2013, and any execution of a will or codicil, including but not limited to the Second Codicil to December 5, 2002 Will of Kjell H. Qvale executed on October 10, 2012. 4. “YOU” shall mean Petitioner Miles Jeffrey Qvale, individually or as trustee for any trusts; and any and all of his present or former agents, representatives, and anyone else acting or purporting to act on his behalf. 5. “COMMUNICATION” or “COMMUNICATIONS” shall mean every manner or means of disclosure, transfer, or exchange of information, whether orally, by DOCUMENT, or in any other manner, and whether face to face, or by telephone, mail, email, computer, personal delivery, text message, or otherwise. 2 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 6. “2013 TRUST DOCUMENTS?” shall refer to the January 30, 2013 instruments executed by Kjell H. Qvale, specifically: an Exercise of Power of Appointment as to the Nonexempt Marital Trust; an Exercise of Power of Appointment as to the Exempt Marital Trust; and an Amended and Restated Declaration of Trust for the Survivor's Trust. 7. “2012 REDEMPTION AGREEMENT” shall refer to the September 1, 2012 Stock Redemption Agreement attached as Exhibit A to Miles Jeffrey Qvale’s Petition for Conveyance of Property Belonging to Trust: for Damages and Other Relief for Financial Elder Abuse, filed in S8.F. Superior Court, Case No. PTR-13-297016. 8. “PERSON” shall mean any natural person, firm, entity, corporation, partnership, proprietorship, joint venture, other form of organization or arrangement, and government and government agency of every nature or type. Il. REQUESTS FOR PRODUCTION (SET ONE) AND RESPONSES IN DISPUTE REQUEST FOR PRODUCTION NO, 1: All DOCUMENTS identified in YOUR responses to the First Set of Special Interrogatories to Miles Jeffrey Qvale, served on October 9, 2014, RESPONSE TO REQUEST FOR PRODUCTION NO. 1: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges. Responding Party objects to the term “identified” as vague and ambiguous. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which no information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that is either a matter of public record or is equally (and in some instances only) available to the Propounding Parties from its own or its agents’ files, public sources or from other third parties, or has already been provided to the Propounding Parties, or is already in their possession, custody or control. 3 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 1: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges, including the right of privacy. Responding Party objects to the term "identified" as vague and ambiguous, As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which very little information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that Responding Party have already produced in this litigation, or to the extent the Request seeks the production of pleadings, which are either a matter of public record or are equally available to the Propounding Parties from public sources, other third parties, or are already in their possession, custody or control. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. REASON WHY RESPONSE SHOULD BE COMPELLED: On October 9, 2014, Respondents propounded their first set of Special Interrogatories on Jeff, which seek information directly related to Jeff's efforts to overturn his father Kjell H. Qvale’s (“Kjell”) estate plan” That same day, Respondents propounded this RFP, which requests all documents identified in Jeff's responses to Respondents’ Special Interrogatories. In his ; Respondents’ First Set of Special Interrogatories Served on Jeff is attached as Exhibit | to this Separate Statement. 4 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 response and supplemental response to this RFP, and in subsequent meet-and-confer correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this REP. See Matheson Decl., Exs. B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to Challa); Ex. F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has improperly withheld documents on the basis of attorney-client privilege, attorney-work-product privilege, and the common-interest doctrine. The attorney-client privilege applies only to communications by a person who consults a lawyer in the lawyer’s professional capacity. See Cal, Evid. Code § 951. It “does not protect information coming from a third party who is not a client unless the person is acting as the client’s agent.” Grosslight v. Super. Ct., 72 Cal. App. 3d 502, 506 (1977); see also Rigolfi v. Super. Ct., 215 Cal. App. 2d 497 (1963). Several entries in Jeff’s privilege logs list communications between Jeff or his counsel and third-parties who are neither clients nor agents working to further Jeff's litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to these third parties waives attorney-client privilege and work-product protection. See OXY Res. Cal. LLC v. Super. Ct, 115 Cal. App. 4th 874, 891 (2004). Jeff has also improperly withheld communications involving Malone — an independent co-trustee — and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff cannot withhold such documents because his communications with Malone and Montgomery did not “further the interests” of co-parties “aligned on the same side in an investigation or litigation.” Mckesson HBOC, Inc. v. Super. Cr., 115 Cal App. 4th 1229, 1237-39 (2004), Finally, Jeff has failed to provide complete privilege logs identifying the documents he is withholding on the basis of privilege, as required under Code of Civil Procedure Section 2031.240(c). In fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation communications with his counsel and unnamed third parties, whom he refers to as “agents assisting in the obtaining of legal advice.” Matheson Decl., Ex. N (Jan. 16, 2015 privilege log). By refusing to provide the required “specific factual” information, Jeff has made it impossible for Respondents or the Court to determine whether any of these “exclude[d]” communications are, in fact, privileged. Hernandez v. Super. Ct., 112 Cal. App. 4th 285, 292 (2003); Cal. Code. Civ. 5 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 Proc. § 2031.240(c). Accordingly, the Court should compel Jeff to produce all documents responsive to this REP, including documents and communications improperly withheld on privilege grounds. REQUEST FOR PRODUCTION NO, 2: All DOCUMENTS CONCERNING the ESTATE PLAN. RESPONSE TO REQUEST FOR PRODUCTION NO, 2: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which no information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that is either a matter of public record or is equally (and in some instances only) available to the Propounding Parties from its own or its agents' files, public sources or from other third parties, or has already been provided to the Propounding Parties, or is already in their possession, custody or control. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 2: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges, including the right of privacy. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which very little information has 6 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that Responding Party have already produced in this litigation, or to the extent the Request seeks the production of pleadings, which are either a matter of public record or are equally available to the Propounding Parties from public sources, other third parties, or are already in their possession, custody or control. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. REASON WHY RESPONSE SHOULD BE COMPELLED: Jeff seeks to overturn Kjell’s estate plan on the grounds that Kjell was in a weakened mental state and his intentions were subverted and overcome by Respondents when he executed certain estate plan documents in 2012 and 2013 as part of his longstanding efforts to minimize the tax burden on his estate and to leave control of his family business, QAG, to Bruce. This RFP specifically targets these issues by seeking documents directly related to Kjell’s estate plan. In his response and supplemental response to this RFP, and in subsequent meet-and-confer correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this RFP. See Matheson Decl., Exs. B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to Challa); Ex. F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has improperly withheld documents on the basis of attorney-client privilege, attorney-work-product privilege. and the common-interest doctrine. The attorney-client privilege applies only to communications by a person who consults a lawyer in the lawyer’s professional capacity. See Cal. Evid. Code § 951. It “does not protect information coming from a third party who is not a client unless the person is acting as the client’s agent.” Grosslight, 72 Cal. App. 3d at 506; see also Rigolfi, 215 Cal. App. 2d 497. Several entries in Jeff's privilege logs list communications between Jeff or his counsel and third-parties who are neither clients nor agents working to further Jeff's litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to these third parties waives attorney-client privilege and work-product protection. See OXY Res. 7 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 Cal. LLC, 115 Cal. App. 4th at 891. Jeff has also improperly withheld communications involving Malone — an independent co- trustee ~ and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff cannot withhold such documents because his communications with Malone and Montgomery did not “further the interests” of co-parties “aligned on the same side in an investigation or litigation.” Mckesson HBOC, 115 Cal App. 4th at 1237-39. Finally, Jeff has failed to provide complete privilege logs identifying the documents he is withholding on the basis of privilege, as required under Code of Civil Procedure Section 2031.240(c). in fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation communications with his counsel and unnamed third parties, whom he refers to as “agents assisting in the obtaining of legal advice.” Matheson Decl., Ex. N (Jan. 16, 2015 privilege log). By refusing to provide the required “specific factual” information, Jeff has made it impossible for Respondents or the Court to determine whether any of these “exclude[d]” communications are, in fact, privileged. Hernandez, 112 Cal. App. 4th at 292; Cal. Code. Civ. Proc. § 2031.240(c). Accordingly, the Court should compel Jeff to produce all documents responsive to this REP, including documents and communications improperly withheld on privilege grounds. REQUEST FOR PRODUCTION NO. 3: All COMMUNICATIONS between YOU and any PERSON CONCERNING the ESTATE PLAN. RESPONSE TO REQUEST FOR PRODUCTION NO. 3: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which no information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that is either a matter of public record or is equally (and in some instances 8 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 only) available to the Propounding Parties from its own or its agents' files, public sources or from other third parties, or has already been provided to the Propounding Parties, or is already in their possession, custody or control. Responding Party objects to this Request as overbroad and unduly burdensome in that it is not limited in scope. Responding Party further objects to this Request to the extent it is seeking documents regarding oral communications. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party’s possession, custody or control after a reasonably diligent search and good faith inquiry. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 3: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges, including the right of privacy. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which very little information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that Responding Party have already produced in this litigation, or to the extent the Request seeks the production of pleadings, which are either a matter of public record or are equally available to the Propounding Parties from public sources, other third parties, or are already in their possession, custody or control. Responding Party objects to this Request as overbroad and unduly burdensome in that it is not limited in scope. Responding Party further objects to this Request to the extent it is seeking documents regarding oral communications. Responding Party will produce documents of such oral communications (subject to the above objections) that already exist, but will not create new documents concerning such oral communications. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such 9 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. REASON WHY RESPONSE SHOULD BE COMPELLED: Jeff seeks to overturn Kjell’s estate plan on the grounds that Kjell was in a weakened mental state and his intentions were subverted and overcome by Respondents when he executed certain estate plan documents in 2012 and 2013 as part of his longstanding efforts to minimize the tax burden on his estate and to leave control of his family business, QAG, to Bruce. This RFP specifically targets these issues by seeking documents directly related to Kjell’s estate plan. In his response and supplemental response to this RFP, and in subsequent meet-and-confer correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this REP. See Matheson Decl., Exs, B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to Challa); Ex. F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has improperly withheld documents on the basis of attorney-client privilege, attorney-work-product privilege, and the common-interest doctrine. The attorney-client privilege applies only to communications by a person who consults a lawyer in the lawyer’s professional capacity. See Cal. Evid. Code § 951. It “does not protect information coming from a third party who is not a client unless the person is acting as the client’s agent.” Grosslight, 72 Cal, App. 3d at 506; see also Rigolfi, 215 Cal. App. 2d 497. Several entries in Jeff's privilege logs list communications between Jeff or his counsel and third-parties who are neither clients nor agents working to further Jeff's litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to these third parties waives attorney-client privilege and work-product protection. See OXY Res. Cal. LLC, 115 Cal. App. 4th at 891. Jeff has also improperly withheld communications involving Malone — an independent co- trustee - and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff cannot withhold such documents because his communications with Malone and Montgomery did not “further the interests” of co-parties “aligned on the same side in an investigation or litigation.” Mckesson HBOC, 115 Cal App. 4th at 1237-39. Finally, Jeff has failed to provide complete privilege logs identifying the documents he is 10 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 withholding on the basis of privilege, as required under Code of Civil Procedure Section 2031.240(c). In fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation communications with his counsel and unnamed third parties, whom he refers to as “agents assisting in the obtaining of legal advice.” Matheson Decl., Ex. N (Jan. 16, 2015 privilege log). By refusing to provide the required “specific factual” information, Jeff has made it impossible for Respondents or the Court to determine whether any of these “exclude[d]” communications are, in fact, privileged. Hernandez, 112 Cal. App. 4th at 292; Cal. Code. Civ. Proc. § 2031 .240(c). Accordingly, the Court should compel Jeff to produce all documents responsive to this REP, including documents and communications improperly withheld on privilege grounds. REQUEST FOR PRODUCTION NO. 4: All DOCUMENTS CONCERNING the 2013 TRUST DOCUMENTS. RESPONSE TO REQUEST FOR PRODUCTION NO. 4: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which no information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that is either a matter of public record or is equally (and in some instances only) available to the Propounding Parties from its own or its agents’ files, public sources or from other third parties, or has already been provided to the Propounding Parties, or is already in their possession, custody or control. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. II SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 4: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges, including the right of privacy. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which very little information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that Responding Party have already produced in this litigation, or to the extent the Request seeks the production of pleadings, which are either a matter of public record or are equally available to the Propounding Parties from public sources, other third parties, or are already in their possession, custody or control. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. REASON WHY RESPONSE SHOULD BE COMPELLED: Jeff seeks to overturn Kjell’s estate plan on the grounds that Kjell was in a weakened mental state and his intentions were subverted and overcome by Respondents when he executed certain estate plan documents in 2012 and 2013 as part of his longstanding efforts to minimize the tax burden on his estate and to leave control of his family business, QAG, to Bruce. This RFP specifically targets these issues by seeking documents directly related to the estate plan documents Jeff now seeks to overturn. In his response and supplemental response to this RFP, and in subsequent meet-and-confer correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this RFP. See Matheson Decl., Exs. B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to Challa); Ex. F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has improperly withheld documents on the basis of attorney-client privilege, attorney-work-product 12 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 privilege. and the common-interest doctrine. The attorney-client privilege applies only to communications by a person who consults a lawyer in the lawyer’s professional capacity. See Cal. Evid. Code § 951. It “does not protect information coming from a third party who is not a client unless the person is acting as the client’s agent.” Grosslight, 72 Cal. App. 3d at 506; see also Rigolfi, 215 Cal. App. 2d 497. Several entries in Jeff's privilege logs list communications between Jeff or his counsel and third-parties who are neither clients nor agents working to further Jeff’s litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to these third parties waives attorney-client privilege and work-product protection. See OXY Res. Cal. LLC, 115 Cal. App. 4th at 891. Jeff has also improperly withheld communications involving Malone — an independent co- trustee ~ and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff cannot withhold such documents because his communications with Malone and Montgomery did not “further the interests” of co-parties “aligned on the same side in an investigation or litigation.” Mckesson HBOC, 115 Cal App. 4th at 1237-39, Finally, Jeff has failed to provide complete privilege logs identifying the documents he is withholding on the basis of privilege, as required under Code of Civil Procedure Section 2031,.240(c). In fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation communications with his counsel and unnamed third parties, whom he refers to as “agents assisting in the obtaining of legal advice.’ Matheson Decl., Ex. N (Jan. 16, 2015 privilege log). By refusing to provide the required “specific factual” information, Jeff has made it impossible for Respondents or the Court to determine whether any of these “exclude[d]” communications are, in fact, privileged. Hernandez, 112 Cal. App. 4th at 292; Cal. Code. Civ. Proc. § 2031.240(c). Accordingly, the Court should compel Jeff to produce all documents responsive to this RFP, including documents and communications improperly withheld on privilege grounds. REQUEST FOR PRODUCTION NO, 5: All COMMUNICATIONS between YOU and any PERSON concerning the 2013 TRUST DOCUMENTS. 13 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 RESPONSE TO REQUEST FOR PRODUCTION NO. 5: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which no information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that is either a matter of public record or is equally (and in some instances only) available to the Propounding Parties from its own or its agents' files, public sources or from other third parties, or has already been provided to the Propounding Parties, or is already in their possession, custody or control. Responding Party objects to this Request as overbroad and unduly burdensome in that it is not limited in scope. Responding Party further objects to this Request to the extent it is seeking documents regarding oral communications. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 5: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges, including the right of privacy. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which very little information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that Responding Party have already produced in this litigation, or to the extent the Request seeks the production of pleadings, 14 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 which are either a matter of public record or are equally available to the Propounding Parties from public sources, other third parties, or are already in their possession, custody or control, Responding Party objects to this Request as overbroad and unduly burdensome in that it is not limited in scope. Responding Party further objects to this Request to the extent it is seeking documents regarding oral communications. Responding Party will produce documents of such oral communications (subject to the above objections) that already exist, but will not create new documents concerning such oral communications. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. REASON WHY RESPONSE SHOULD BE COMPELLED: Jeff seeks to overturn Kjell’s estate plan on the grounds that Kjell was in a weakened mental state and his intentions were subverted and overcome by Respondents when he executed certain estate plan documents in 2012 and 2013 as part of his longstanding efforts to minimize the tax burden on his estate and to leave control of his family business, QAG, to Bruce. This RFP specifically targets these issues by seeking documents directly related to the estate plan documents Jeff now seeks to overturn. In his response and supplemental response to this RFP, and in subsequent meet-and-confer correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this RFP. See Matheson Decl., Exs. B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to Challa); Ex. F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has improperly withheld documents on the basis of attorney-client privilege, attorney-work-product privilege, and the common-interest doctrine. The attorney-client privilege applies only to communications by a person who consults a lawyer in the lawyer’s professional capacity. See Cal. Evid. Code § 951. It “does not protect information coming from a third party who is not a client unless the person is acting as the client’s agent.” Grosslight, 72 Cal. App. 3d at 506; see also Rigolfi, 215 Cal. App. 2d 497. Several entries in Jeff's privilege logs list communications 1s SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 between Jeff or his counsel and third-parties who are neither clients nor agents working to further Jeff's litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to these third parties waives attorney-client privilege and work-product protection. See OXY Res. Cal. LLC, 115 Cal. App. 4th at 891. Jeff has also improperly withheld communications involving Malone — an independent co- trustee ~ and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff cannot withhold such documents because his communications with Malone and Montgomery did not “further the interests” of co-parties “aligned on the same side in an investigation or litigation,” Mckesson HBOC, 115 Cal App. 4th at 1237-39. Finally, Jeff has failed to provide complete privilege logs identifying the documents he is withholding on the basis of privilege, as required under Code of Civil Procedure Section 2031.240(c). in fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation communications with his counsel and unnamed third parties, whom he refers to as “agents assisting in the obtaining of legal advice.” Matheson Decl., Ex. N (Jan. 16, 2015 privilege log). By refusing to provide the required “specific factual” information, Jeff has made it impossible for Respondents or the Court to determine whether any of these “exclude[d]” communications are, in fact, privileged. Hernandez, 112 Cal. App. 4th at 292; Cal. Code. Civ. Proc. § 2031.240(c). Accordingly, the Court should compel Jeff to produce all documents responsive to this REP, including documents and communications improperly withheld on privilege grounds. REQUEST FOR PRODUCTION NO. 6: All DOCUMENTS CONCERNING the 2012 REDEMPTION AGREEMENT. RESPONSE TO REQUEST FOR PRODUCTION NO. 6: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which no information has been forthcoming, as such, discovery and 16 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that is either a matter of public record or is equally (and in some instances only) available to the Propounding Parties from its own or its agents! files, public sources or from other third parties, or has already been provided to the Propounding Parties, or is already in their possession, custody or control. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party’s possession, custody or control after a reasonably diligent search and good faith inquiry. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 6: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges, including the right of privacy. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which very little information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that Responding Party have already produced in this litigation, or to the extent the Request seeks the production of pleadings, which are either a matter of public record or are equally available to the Propounding Parties from public sources, other third parties, or are already in their possession, custody or control. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. REASON WHY RESPONSE SHOULD BE COMPELLED: Jeff seeks to overturn Kjell’s estate plan on the grounds that Kjell was in a weakened mental state and his intentions were subverted and overcome by Respondents when he executed 17 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 certain estate plan documents in 2012 and 2013 as part of his longstanding efforts to minimize the tax burden on his estate and to leave control of his family business, QAG, to Bruce. This RFP specifically targets these issues by seeking documents directly related to the estate plan documents Jeff now seeks to overturn. In his response and supplemental response to this RFP, and in subsequent meet-and-confer correspondence by his counsel, Jeff agreed to produce nonprivileged documents responsive to this RFP. See Matheson Decl., Exs. B & G; see also id., Ex. E (Dec. 8, 2014 Berkowitz letter to Challa); Ex, F (Dec. 12, 2014 Challa Letter to Berkowitz). Despite this representation, Jeff has improperly withheld documents on the basis of attorney-client privilege, attorney-work-product privilege, and the common-interest doctrine. The attorney-client privilege applies only to communications by a person who consults a lawyer in the lawyer’s professional capacity. See Cal. Evid. Code § 951. It “does not protect information coming from a third party who is not a client unless the person is acting as the client’s agent.” Grosslight, 72 Cal. App. 3d at 506; see alse Rigolfi, 215 Cal, App. 2d 497, Several entries in Jeff's privilege logs list communications between Jeff or his counsel and third-parties who are neither clients nor agents working to further Jeff's litigation, including Richard Pimentel, Ron Malone, and George Montgomery. Disclosure to these third parties waives attorney-client privilege and work-product protection. See OXY Res. Cal. LLC, 115 Cal. App. 4th at 891. Jeff has also improperly withheld communications involving Malone — an independent co- trustee — and Montgomery (Malone’s attorney) based on the common interest doctrine. Jeff cannot withhold such documents because his communications with Malone and Montgomery did not “further the interests” of co-parties “aligned on the same side in an investigation or litigation.” Mckesson HBOC, 115 Cal App. 4th at 1237-39. Finally, Jeff has failed to provide complete privilege logs identifying the documents he is withholding on the basis of privilege, as required under Code of Civil Procedure Section 2031.240(c). In fact, Jeff candidly admits that his privilege logs “exclude[]” prelitigation communications with his counsel and unnamed third parties, whom he refers to as “agents assisting in the obtaining of legal advice.” Matheson Decl., Ex. N (Jan. 16, 2015 privilege log). 18 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 By refusing to provide the required “specific factual” information, Jeff has made it impossible for Respondents or the Court to determine whether any of these “exclude[d]” communications are, in fact, privileged. Hernandez, 112 Cal. App. 4th at 292; Cal. Code. Civ. Proc. § 2031.240(c). Accordingly, the Court should compel Jeff to produce all documents responsive to this RFP, including documents and communications improperly withheld on privilege grounds. REQUEST FOR PRODUCTION NO. 7: All COMMUNICATIONS between YOU and any PERSON CONCERNING the 2012 REDEMPTION AGREEMENT. RESPONSE TO REQUEST FOR PRODUCTION NO. 7: Responding Party incorporates its Preliminary Responses and Objections as if fully set forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for which no information has been forthcoming, as such, discovery and investigation are still continuing. Responding Party further objects to this Request to the extent it seeks information that is either a matter of public record or is equally (and in some instances only) available to the Propounding Parties from its own or its agents' files, public sources or from other third parties, or has already been provided to the Propounding Parties, or is already in their possession, custody or control. Responding Party objects to this Request as overbroad and unduly burdensome in that it is not limited in scope. Responding Party further objects to this Request to the extent it is seeking documents regarding oral communications. Subject to and without waiving the foregoing objections and the Preliminary Responses and Objections, Responding Party responds as follows: Responding Party agrees to produce such documents that are found to be in Responding Party's possession, custody or control after a reasonably diligent search and good faith inquiry. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 7: Responding Party incorporate§ its Preliminary Responses and Objections as if fully set 19 SEPARATE STATEMENT 1/S/O MOTION TO COMPEL PRODUCTION OF DOCUMENTS Case No. PTR-13-297016, PTR-13-297017, PPR-13-297143894162 forth here. In addition to the Preliminary Responses and Objections above, Responding Party objects to each Request to the extent it seeks information protected by the attorney-client privilege (including the common-interest doctrine), the attorney work product doctrine, or similar privileges, including the right of privacy. As Propounding Parties are aware, there has been discovery pending against them, or their agents, for months for