Preview
STAN ROMAN Bar N0. 87652)
(State
THOMAS A. HARVEY
(State Bar No. 235342)
PHILIP MILLER (State Bar N0. 280537)
BENJAMIN C. PULLIAM (State Bar N0. 294628)
FORAM DAVE (State Bar No. 305494) F' L ED
COBLENTZ PATCH DUFFY & BASS LLP
QUIAWN
One Montgomery 3000
Street, Suite APR “ 2 2018
San Francisco, California 94104-5500
Telephone: 415.391.4800
Facsimile: 415.989.1663
Email: ef-sgr@cpdb.com
ef-tah@cpdb.com
94IO4-5500
fl ef—pdm@cpdb.c0m
ef-bcp@cpdb.com
M ef-fxd@cpdb.c0m
\O Attorneys for Plaintiff
CALIFORNIA
~
WONDERWORKS PTE. LTD.
LLP
10
BAss
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
5.989.|663
&
FRANCISCOV
12 COUNTY OF SANTA CLARA
4|
13
DUFFY
FAX
SAN
14 WONDERWORKS PTE. LTD, Case N0. 114CV273632
PATCH
3000. 15 Plaintiff, PLAINTIFF WONDERWORKS PTE.
LTD.’SUNOPPOSED EXPARTE
16 v. APPLICATION FOR AN ORDER
SUITE
4l5.39|.4800
ISSUING A REVISED LETTER OF
17 HEWLETT-PACKARD COMPANY; HP REQUEST TO THE APPROPRIATE
COBLENTZ
ENTERPRISE SERVICES, LLC and JUDICIAL AUTHORITIES OF
STREET.
l8 HEWLETT-PACKARD (M) SDN. BHD, and AUSTRALIA
DOES 2 through 50, inclusive,
19 DATE: April 2, 2018
Defendants. TIME: 8: 1 5 a.m.
MONTGOMERY
20 DEPT: 13
JUDGE: The Honorable James L. Stoelker
21
Date of Trial: June 4, 201 8
ONE
22
23
24 PLEASE TAKE NOTICE that on April 2, 201 8, at 8: 1 5 a.m. in Dept. 13, before the
25 Honorable James L. Stoelker 0f the above-entitled court, located at 191 North First Street San
26 Jose, CA 951 13, Department 13, or as soon thereafter as the matter may be heard, Plaintiff
27 WonderWorks Pte. Ltd. (“WonderWorks”) will move this Court ex parte for an order issuing a
28
1 114CV273632
PLAINTIFF’S UNOPPOSED EX PARTE APPLICATION FOR AN ORDER ISSUING A REVISED LETTER
OF REQUEST TO THE APPROPRIATE JUDICIAL AUTHORITIES OF AUSTRALIA
revised letter of request to the appropriate judicial authorities of Australia.
Defendants Hewlett-Packard Company and HP Enterprise Services, LLC, and Hewlett-
Packard (M) SDN. BHD. (collectively “Defendants” or “HP”) are represented by Baker McKenzie
Two Embarcadero Center, 1 1th Floor, San Francisco, California 941 1 l;
\OWQONUIADJNH
telephone (41 5) 576-3000; fax (41 5) 576-3099. As set forth in the attached Declaration of
Benjamin C. Pulliam, notice of this ex parte application was provided to Defendants in accordance
with 1203 of the California Rules of Court. Defendants have informed Plaintiff that they
94I04-5500
3. et seq.
do not oppose this application.
Good cause exists to grant the ex parte application. A regular noticed motion could not be
CALIFORNIA
LLP
heard while still allowing for time to submit the letter of request to the proper Australian court,
allow the Australian court to address the letter of request, and to schedule and take the foreign
BASS
4|5.989.|663
FRANCISCO. deposition.
&
This ex parte application is based the accompanying Memorandum of Points and
DUFFY
FAX
SAN
Authorities, the accompanying Declaration of Benjamin C. Pulliam and exhibits attached thereto,
3000. the Court’s records in this action, all matters of which the Court may 0r must take notice, and any
PATCH
and all evidence, argument or other matters as the Court may permit at the hearing.
SUITE
4l5.391.4800
COBLENTZ
STREET,
NNNNNNNNNr—du—H—HH—Huh—t
DATED: April 2, 2018 COBLENTZ PATCH DUFFY & BASS LLP
”\IONUIRMNflOOMQQUIAMNi-‘O
MONTGOMERY
By:
BENJ‘AQNCYPULLM
Attorneys for Plaintiff
ONE
WONDERWORKS PTE. LTD.
2 114cv273632
PLAINTIFF’S UNOPPOSED EXPARTE APPLICATION FOR AN ORDER ISSUING A REVISED LETTER
OF REQUEST TO THE APPROPRIATE JUDICIAL AUTHORITIES OF AUSTRALIA
MEMORANDUM OF POINTS AND AUTHORITIES
I. EX PARTE NOTICE
As set forth in the accompanying Declaration of Benjamin C. Pulliam in Support 0f
Plaintiff WonderWorks’ Unopposed Ex Parte Application for Issuance of a Revised Letter of
OWNO‘KUIAUJNH
Request to the Appropriate Judicial Authorities of Australia (“Pulliam Decl.”), WonderWorks
provided notice of this ex parte application to Defendants in accordance with California Rule of
94IO4-5500
Court 3.1203 etseq. Before 10:00 a.m. on March 30, 2018, counsel for WonderWorks notified
Defendants’ counsel of WonderWorks’ intention t0 seek ex parte relief 0n this matter. Pulliam
Decl. 1] 2.
CALIFORNIA
LLP
Defendants have informed Plaintiff that they do not oppose this Application. 1d. 1]
3.
BASS
II. INTRODUCTION
4I5.989.I663
5:
FRANCISCO. Plaintiff seeks to depose a fact witness, Richard Bahnsen, who currently lives in Australia
and n0 longer works for HP. As such, Plaintiff intends to obtain an order from the appropriate
DUFFY
FAX
SAN
Australian court requiring Mr. Bahnsen to testify under oath at a deposition. Plaintiff understands
PATCH
3000. that Australian courts require a letter 0f request from this Court to issue such an order.
On Thursday, March 22, 201 8, Judge Stoelker signed a letter of request relating to the
SUITE
4|5.39l.4800
deposition of Mr. Bahnsen. See Pulliam Decl., Exh. A. Afier the letter was signed, Plaintiff‘s
NNNNNNNNNHHHHH—Hu—u—tu—A
COBLENTZ
STREET.
Australian counsel noticed several minor errors in the letter. Those errors have since been fixed.
A revised letter of request is attached as Exhibit B to the Pulliam Declaration.
OOleNUIAwNH©©WQOUIAuNHO
Accordingly, Plaintiff respectfully requests that the Court issue the revised letter 0f request
MONTGOMERY
to the Supreme Court of Victoria authorizing the taking 0f Mr. Bahnsen’s deposition in Australia
ONE
and the appointment 0f an appropriate deposition officer to administer an oath and record the
deposition.
III. LEGAL STANDARD
Code Civ. Proc., sec. 2027.01 0(a) provides that a party may conduct an oral deposition in a
foreign nation pursuant to Code Civ. Proc., sec. 2025.01 0. Where a deponent is an officer,
director, managing agent, or employee of a party, service of a deposition notice is effective to
compel the deponent to attend and to testify. (Code Civ. Proc., 2027.010(b).) For a deponent that
3 114CV273632
PLAINTIFF’S UNOPPOSED EX PARTE APPLICATION FOR AN ORDER ISSUING A REVISED LETTER
OF REQUEST TO THE APPROPRIATE JUDICIAL AUTHORITIES OF AUSTRALIA
is not a party or an officer, director, managing agent, or employee of a party, however, the
subpoenaing party must follow the requirements 0f the foreign nation for issuance 0f a subpoena.
(Code Civ. Proc., 2027.010(c).) On motion of a party seeking the deposition, the court in which
the action is pending shall issue a commission, letters rogatory, or a letter of request, if it
determines that one is necessary or convenient. (Code Civ. Proc., 2027.010(e).) The statute is
\OWQO‘NUIAM
essentially ministerial; i.e., it does not identify any factors to balance 0r that might weigh against
94IO4-5500
issuance.
IV. ISSUING THE LETTER OF REQUESTSOUGHT BY PLAINTIFF WOULD
ENSURE THAT RELEVANT DISCOVERY COULD BE CONDUCTED ABROAD
BEFORE THE MAY 7 DISCOVERY CUTOFF
CALIFORNIA
LLP
10 Richard Bahnsen is a fact witness in this case. Mr. Bahnsen worked for Defendants 0n the
BASS
11 BNM project. Mr. Bahnsen acted as project director on the BNM project from late March 2012
4|5.989.|663
FRANCISCO. 12 through to at least mid-20l 3. Mr. Bahnsen worked closely with Plaintiff WonderWorks and is
&
13 knowledgeable about many of the issues in this case. Plaintiff is informed that Mr. Bahnsen is a
DUFFY
FAX
SAN
14 resident of Oakleigh South, Australia, and n0 longer works for HP. As a result, a letter of request
PATCH
3000. 15 is needed t0 compel his testimony. A revised letter ofrequest relating t0 Mr. Bahnsen is attached
16 as Exhibit B t0 the Pulliam Declaration.
SUITE
4l5.39|.4800
l7 V. EX PARTE RELIEF IS WARRANTED
COBLENTZ
STREET,
18 Ex Parte relief is warranted to ensure that the foreign deposition can be taken by the May 7
19 discovery deadline. If ex parte relief is not granted, it is unlikely that a noticed motion could be
20 briefed and heard while still allowing for time to present the letter 0f request to the Australian
MONTGOMERY
21 court, and then schedule and take the deposition. Absent an ex parte order issuing the letter
ONE
22 sought herein, Plaintiff may be precluded from deposing this important fact witness by the
23 discovery deadline.
24 ///
25 ///
26 ///
27 ///
28 ///
4 114cv273632
PLAINTIFF’S UNOPPOSED EX PARTE APPLICATION FOR AN ORDER ISSUING A REVISED LETTER
OF REQUEST T0 THE APPROPRIATE JUDICIAL AUTHORITIES OF AUSTRALIA
VI. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court grant its unopposed
Application and issue the attached Letter of Request relating to the deposition of Richard Bahnsen
in Australia.
DATED: COBLENTZ PATCH DUFFY & BASS LLP
wwflamhwlflfl
April 2, 2018
94l04-5500
By: I
’
A
BE’NJAMTN CYPUIZLIAW
Attorneys for Plaintiff
WONDERWORKS PTE. LTD.
CALIFORNIA
LLP
BASS
4|5.989.l663
FRANCISCO.
&
DUFFY
FAX
SAN
o
3000.
PATCH
SUITE
4|5.39|.4BOO
COBLENTZ
STREET.
NNNNNNNNNHHHHHHH—HH
”\IGNUlAMNt—QfiwflcxmAuNr-tc
MONTGOMERY
ONE
5 114CV273632
PLAINTIFF’S UNOPPOSED EX PARTE APPLICATION FOR AN ORDER ISSUING A REVISED LETTER
OF REQUEST TO THE APPROPRIATE JUDICIAL AUTHORITIES OF AUSTRALIA
Preview
STAN ROMAN Bar N0. 87652) (State THOMAS A. HARVEY (State Bar No. 235342) PHILIP MILLER (State Bar N0. 280537) BENJAMIN C. PULLIAM (State Bar N0. 294628) FORAM DAVE (State Bar No. 305494) F' L ED COBLENTZ PATCH DUFFY & BASS LLP QUIAWN One Montgomery 3000 Street, Suite APR “ 2 2018 San Francisco, California 94104-5500 Telephone: 415.391.4800 Facsimile: 415.989.1663 Email: ef-sgr@cpdb.com ef-tah@cpdb.com 94IO4-5500 fl ef—pdm@cpdb.c0m ef-bcp@cpdb.com M ef-fxd@cpdb.c0m \O Attorneys for Plaintiff CALIFORNIA ~ WONDERWORKS PTE. LTD. LLP 10 BAss 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 5.989.|663 & FRANCISCOV 12 COUNTY OF SANTA CLARA 4| 13 DUFFY FAX SAN 14 WONDERWORKS PTE. LTD, Case N0. 114CV273632 PATCH 3000. 15 Plaintiff, PLAINTIFF WONDERWORKS PTE. LTD.’SUNOPPOSED EXPARTE 16 v. APPLICATION FOR AN ORDER SUITE 4l5.39|.4800 ISSUING A REVISED LETTER OF 17 HEWLETT-PACKARD COMPANY; HP REQUEST TO THE APPROPRIATE COBLENTZ ENTERPRISE SERVICES, LLC and JUDICIAL AUTHORITIES OF STREET. l8 HEWLETT-PACKARD (M) SDN. BHD, and AUSTRALIA DOES 2 through 50, inclusive, 19 DATE: April 2, 2018 Defendants. TIME: 8: 1 5 a.m. MONTGOMERY 20 DEPT: 13 JUDGE: The Honorable James L. Stoelker 21 Date of Trial: June 4, 201 8 ONE 22 23 24 PLEASE TAKE NOTICE that on April 2, 201 8, at 8: 1 5 a.m. in Dept. 13, before the 25 Honorable James L. Stoelker 0f the above-entitled court, located at 191 North First Street San 26 Jose, CA 951 13, Department 13, or as soon thereafter as the matter may be heard, Plaintiff 27 WonderWorks Pte. Ltd. (“WonderWorks”) will move this Court ex parte for an order issuing a 28 1 114CV273632 PLAINTIFF’S UNOPPOSED EX PARTE APPLICATION FOR AN ORDER ISSUING A REVISED LETTER OF REQUEST TO THE APPROPRIATE JUDICIAL AUTHORITIES OF AUSTRALIA revised letter of request to the appropriate judicial authorities of Australia. Defendants Hewlett-Packard Company and HP Enterprise Services, LLC, and Hewlett- Packard (M) SDN. BHD. (collectively “Defendants” or “HP”) are represented by Baker McKenzie Two Embarcadero Center, 1 1th Floor, San Francisco, California 941 1 l; \OWQONUIADJNH telephone (41 5) 576-3000; fax (41 5) 576-3099. As set forth in the attached Declaration of Benjamin C. Pulliam, notice of this ex parte application was provided to Defendants in accordance with 1203 of the California Rules of Court. Defendants have informed Plaintiff that they 94I04-5500 3. et seq. do not oppose this application. Good cause exists to grant the ex parte application. A regular noticed motion could not be CALIFORNIA LLP heard while still allowing for time to submit the letter of request to the proper Australian court, allow the Australian court to address the letter of request, and to schedule and take the foreign BASS 4|5.989.|663 FRANCISCO. deposition. & This ex parte application is based the accompanying Memorandum of Points and DUFFY FAX SAN Authorities, the accompanying Declaration of Benjamin C. Pulliam and exhibits attached thereto, 3000. the Court’s records in this action, all matters of which the Court may 0r must take notice, and any PATCH and all evidence, argument or other matters as the Court may permit at the hearing. SUITE 4l5.391.4800 COBLENTZ STREET, NNNNNNNNNr—du—H—HH—Huh—t DATED: April 2, 2018 COBLENTZ PATCH DUFFY & BASS LLP ”\IONUIRMNflOOMQQUIAMNi-‘O MONTGOMERY By: BENJ‘AQNCYPULLM Attorneys for Plaintiff ONE WONDERWORKS PTE. LTD. 2 114cv273632 PLAINTIFF’S UNOPPOSED EXPARTE APPLICATION FOR AN ORDER ISSUING A REVISED LETTER OF REQUEST TO THE APPROPRIATE JUDICIAL AUTHORITIES OF AUSTRALIA MEMORANDUM OF POINTS AND AUTHORITIES I. EX PARTE NOTICE As set forth in the accompanying Declaration of Benjamin C. Pulliam in Support 0f Plaintiff WonderWorks’ Unopposed Ex Parte Application for Issuance of a Revised Letter of OWNO‘KUIAUJNH Request to the Appropriate Judicial Authorities of Australia (“Pulliam Decl.”), WonderWorks provided notice of this ex parte application to Defendants in accordance with California Rule of 94IO4-5500 Court 3.1203 etseq. Before 10:00 a.m. on March 30, 2018, counsel for WonderWorks notified Defendants’ counsel of WonderWorks’ intention t0 seek ex parte relief 0n this matter. Pulliam Decl. 1] 2. CALIFORNIA LLP Defendants have informed Plaintiff that they do not oppose this Application. 1d. 1] 3. BASS II. INTRODUCTION 4I5.989.I663 5: FRANCISCO. Plaintiff seeks to depose a fact witness, Richard Bahnsen, who currently lives in Australia and n0 longer works for HP. As such, Plaintiff intends to obtain an order from the appropriate DUFFY FAX SAN Australian court requiring Mr. Bahnsen to testify under oath at a deposition. Plaintiff understands PATCH 3000. that Australian courts require a letter 0f request from this Court to issue such an order. On Thursday, March 22, 201 8, Judge Stoelker signed a letter of request relating to the SUITE 4|5.39l.4800 deposition of Mr. Bahnsen. See Pulliam Decl., Exh. A. Afier the letter was signed, Plaintiff‘s NNNNNNNNNHHHHH—Hu—u—tu—A COBLENTZ STREET. Australian counsel noticed several minor errors in the letter. Those errors have since been fixed. A revised letter of request is attached as Exhibit B to the Pulliam Declaration. OOleNUIAwNH©©WQOUIAuNHO Accordingly, Plaintiff respectfully requests that the Court issue the revised letter 0f request MONTGOMERY to the Supreme Court of Victoria authorizing the taking 0f Mr. Bahnsen’s deposition in Australia ONE and the appointment 0f an appropriate deposition officer to administer an oath and record the deposition. III. LEGAL STANDARD Code Civ. Proc., sec. 2027.01 0(a) provides that a party may conduct an oral deposition in a foreign nation pursuant to Code Civ. Proc., sec. 2025.01 0. Where a deponent is an officer, director, managing agent, or employee of a party, service of a deposition notice is effective to compel the deponent to attend and to testify. (Code Civ. Proc., 2027.010(b).) For a deponent that 3 114CV273632 PLAINTIFF’S UNOPPOSED EX PARTE APPLICATION FOR AN ORDER ISSUING A REVISED LETTER OF REQUEST TO THE APPROPRIATE JUDICIAL AUTHORITIES OF AUSTRALIA is not a party or an officer, director, managing agent, or employee of a party, however, the subpoenaing party must follow the requirements 0f the foreign nation for issuance 0f a subpoena. (Code Civ. Proc., 2027.010(c).) On motion of a party seeking the deposition, the court in which the action is pending shall issue a commission, letters rogatory, or a letter of request, if it determines that one is necessary or convenient. (Code Civ. Proc., 2027.010(e).) The statute is \OWQO‘NUIAM essentially ministerial; i.e., it does not identify any factors to balance 0r that might weigh against 94IO4-5500 issuance. IV. ISSUING THE LETTER OF REQUESTSOUGHT BY PLAINTIFF WOULD ENSURE THAT RELEVANT DISCOVERY COULD BE CONDUCTED ABROAD BEFORE THE MAY 7 DISCOVERY CUTOFF CALIFORNIA LLP 10 Richard Bahnsen is a fact witness in this case. Mr. Bahnsen worked for Defendants 0n the BASS 11 BNM project. Mr. Bahnsen acted as project director on the BNM project from late March 2012 4|5.989.|663 FRANCISCO. 12 through to at least mid-20l 3. Mr. Bahnsen worked closely with Plaintiff WonderWorks and is & 13 knowledgeable about many of the issues in this case. Plaintiff is informed that Mr. Bahnsen is a DUFFY FAX SAN 14 resident of Oakleigh South, Australia, and n0 longer works for HP. As a result, a letter of request PATCH 3000. 15 is needed t0 compel his testimony. A revised letter ofrequest relating t0 Mr. Bahnsen is attached 16 as Exhibit B t0 the Pulliam Declaration. SUITE 4l5.39|.4800 l7 V. EX PARTE RELIEF IS WARRANTED COBLENTZ STREET, 18 Ex Parte relief is warranted to ensure that the foreign deposition can be taken by the May 7 19 discovery deadline. If ex parte relief is not granted, it is unlikely that a noticed motion could be 20 briefed and heard while still allowing for time to present the letter 0f request to the Australian MONTGOMERY 21 court, and then schedule and take the deposition. Absent an ex parte order issuing the letter ONE 22 sought herein, Plaintiff may be precluded from deposing this important fact witness by the 23 discovery deadline. 24 /// 25 /// 26 /// 27 /// 28 /// 4 114cv273632 PLAINTIFF’S UNOPPOSED EX PARTE APPLICATION FOR AN ORDER ISSUING A REVISED LETTER OF REQUEST T0 THE APPROPRIATE JUDICIAL AUTHORITIES OF AUSTRALIA VI. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court grant its unopposed Application and issue the attached Letter of Request relating to the deposition of Richard Bahnsen in Australia. DATED: COBLENTZ PATCH DUFFY & BASS LLP wwflamhwlflfl April 2, 2018 94l04-5500 By: I ’ A BE’NJAMTN CYPUIZLIAW Attorneys for Plaintiff WONDERWORKS PTE. LTD. CALIFORNIA LLP BASS 4|5.989.l663 FRANCISCO. & DUFFY FAX SAN o 3000. PATCH SUITE 4|5.39|.4BOO COBLENTZ STREET. NNNNNNNNNHHHHHHH—HH ”\IGNUlAMNt—QfiwflcxmAuNr-tc MONTGOMERY ONE 5 114CV273632 PLAINTIFF’S UNOPPOSED EX PARTE APPLICATION FOR AN ORDER ISSUING A REVISED LETTER OF REQUEST TO THE APPROPRIATE JUDICIAL AUTHORITIES OF AUSTRALIA