Motion-Secondary: GLOBAL PROTEIN PRODUCTS, INC. vs K. LE, et al

On June 27, 2005 a Motion-Secondary was filed involving a dispute between Global Protein Products, Inc., and Kevin Le, West Coast Ag, Llc, for Intellectual Property Unlimited (19) in the District Court of Santa Clara County.

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David A. Berstein (State Bar No. 204472)
Nicholas D. Myers (State Bar No. 251809) "If“?sr- . _

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IN THE SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA, DOWNTOWN SUPERIOR COURTHOUSE

10
GLOBAL PROTEIN PRODUCTS, INC., a Case No. 105CV043903
ll De l “we corporat'on’
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DECLARATION OF DAVID A. BERSTEIN IN
12 _ , SUPPORT OF DEFENDANTS’ REPLY TO
Plamtlff’ PLAINTIFF AND INTERVENORS’
LLP
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13
OPPOSITION TO DEFENDANTS’
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SUITE
v. RENEWED MOTION TO MODIFY OR
BERSTEIN
14
DISSOLVE PERMANENT INJUNCTION
CIRCLE,

CALIFORNIA

15 KEVIN K. LE, an individual; WEST kiwi—"g
MYERS
EXECUTIVE

IRVINE,
COAST AG, LLC, a California limited Pate; Jimmy 31’ 2017
4 16 liability company; and DOES 1 through T1me._ 9'00 am.
100, inclusive, Location: Courtroom 3
17

18 Defendants.

‘21 DECLARATION OF DAVID A. BERSTEIN

22 I,David A. Berstein, declare as follows:

23 1. I am an attorney licensed to practice law before the Central Districtof California and all courts

24 within the State of California. I am a partner with the law ﬁrm of Myers Berstein LLP. [have personal

25 knowledge of the facts set forth herein and, if called as a witness, I could and would testify competently
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26 thereto.

27 ///
28 ///
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Declaration of David A. Berstein
2. I make this Declaration in support of the Defendants Kevin K. Le and West Coast Ag, LLC’s

Renewed Motion to Modify or Dissolve Permanent Injunction and in response to m Plaintiff and

Intervenors’ Oppositions.
MANN

3. On October 28, 2016, GPP served Amended Responses to Request for Admission Nos. 6 and 7.

4. Also on October 28, 2016, GPP served Supplemental Responses to Request for Admission, Set

No. Two and Supplemental Responses to Form Interrogatories, Set No. Two.

5. In the Court’s Order on Defendants’ Motion to Compel dated September 27, 2016, the Court
OOOOQON

ordered, inter alia: “Within 20 days of the date of the ﬁling of the Order, Plaintiff shall serve Defendants
with further, veriﬁed responses without objections. ...”

6. GPP was ordered to provide such veriﬁed responses no later than October 17, 2016.

11 7. GPP did not serve its responses m1 until October 28, 2016.

12 8. As a result of GPP’s deﬁcient and untimely Amended/Supplemented Responses, 1 composed
100

LLP 13
92618 and sent yet another Meet and Confer Letter to GPP’s counsel on November 7, 2016, to address, once
SUITE

14
FORNIA
BERSTEIN
CIRCLE, again, GPP’s deﬁcient and untimely amended/supplemented responses. A true and correct copy of the
CALI

MYERS
E, 15
EXECUTIVE
Meet and Confer Letter is incorporated by reference and attached as Exhibit A.
IRVIN

4 I6 9. On November 17, 2016, counsel for GPP and 1 had a telephonic meet and confer conversation

17 wherein it was agreed that certain Amended/Supplemental Responses would be amended/supplemented

18 once again; this conversation was memorialized in a string of emails. A true and correct copy of the
19 memorializing e—mail string is incorporated by reference and attached as Exhibit B.

20 11. On December 1, 2016, sixty-ﬁve (65) days aﬁer the last hearing, GPP ﬁnally got around to

21 serving its Second Amended Response to Request for Admission, Set No. One, and Second

22 Supplemental Response to Request for Admission No. Two. To date, these amended responses from

23 GPP remain unveriﬁed.

24 I declare, under penalty of perjury of the laws of the State of California that the foregoing is true
25 and correct. Executed on January 24, 2017, at Irvine, California.

27
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David A. Berstein, Declarant
28

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Declaration of David A. Berstein
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November 7, 2016 Via E-mail and US. Mail

Paul W. Windust, Esq.
BERDING WEIL LLP
2175 N. California Blvd, Suite 500
Walnut Creek, California 94596
Email: pwindust@berding-weil. com

Re: Global Protein Products v. Kevin K. Le
Santa Clara Superior Court Case No. 105CV043903

Dear Mr. Windust:

We are in receipt of Global Protein Products, Inc.’s (“GPP”) Amended Responses to Requests for
Admission Nos. 6 and 7, as well as both GPP’s untimelyl Supplemental Responses to Request for
Admission, Set No. Two and Supplemental Responses to Form Interrogatories, Set No. Two,
which were served by your ofﬁce on October 28, 2016. Unfortunately, despite having previously
conferred several times on these Requests and being forced to bring a Motion to Compel with a
favorable ruling by the Court on not less than 31 Requests, GPP’s Amended and Supplemental
Responses, not surprisingly, contain deﬁciencies. Again, we are compelled to reiterate that we will
not allow GPP and your ofﬁce to continue to obstruct our clients’ ability to defend themselves
against your client’s frivolous claims.

Amended Resngnses t9_ Reguests for Admission Nos. 6 and 7

On August 30, 2016, the Court granted GPP’s Motion to Amend Admissions to Request for
Admission Nos. 6 and 7. In response, nearly two (2) months later, GPP amended its response to
RFA No. 6 from an “ADMIT” to a “DENIED” and, in response to RFA No. 7, changed its
“DENIED” to the following:

REQUEST FOR ADMISSION N0. 7:
Admit that in Court’s Order Approving Stipulated Permanent Injunction Between
Global Protein Products, Inc., Kevin Le and West Coast Ag, LLC (attached hereto
as Exhibit A) dated January 9, 2006, the “organic acid” identiﬁed in paragraph “1”
is sodium benzoate.

‘
In the Court’s Order on Defendants’ Motion to Compel dated September 27, 2016, Judge
Elfving ordered: “Within 20 days of the date of the ﬁling of the Order, Plaintiff shall serve
Defendants with further, veriﬁed responses without objections . . ..” GPP was ordered to provide
such responses no later than October 17, 2016. Ignoring the Court’s Order, GPP did not serve its
responses until October 28, 2016 by mail.
Meet and Confer Letter
November 7, 2016
Page|2

AMENDED RESPONSE TO REQUEST FOR ADMISSION NO. 7:
Objection, the request isimproper in form and is not 11.1”and complete in and of
itself (CCP § 2033.060(d).). Additionally, the request asks for information that is
protected by the trade secret privilege. (Cal. Evid. Code § 1060.).

For over two years, Defendants have attempted to get a straight answer from GPP with regard to,
among other things, the identity of the “organic acid” referenced in the Stipulated Permanent
Injunction (“Injunction”) and, to no one’s surprise, GPP’s tiresome and loathsome game of not
providing a straightforward answer continues despite very speciﬁc comments by the Court at the
time of the hearing on Defendants’ Motion to Compel.

GPP’s objection of trade secret privilege isobstructive particularly in light of the governing
Stipulated Protective Order (“Protective Order”) which the Court referenced at the hearing on
August 30, 2016, after I proffered my concern that GPP would provide this very response. GPP’s
amended response to Request for Admission No. 7 should contain an admission or denial pursuant
to the Court’s Order granting the amendment — it does not.

Unfortunately, I must reiterate that the identiﬁcation of the organic acid referenced in the
Injunction represents a pivotal facet of Defendants’ defense in this contempt proceeding as well as
in defense of Intervenors’ Complaint in Intervention. From Defendants’ standpoint, what does or
does not constitute the “organic acid” cannot be left tocontinued speculation and, thus, requires
GPP to provide an unambiguous response to RFA No. 7.

The issue of whether the Injunction has been violated, the core issue to both the Contempt and
Intervention proceedings, as a necessity, requires GPP to establish the identity of the “organic
acid.” GPP accuses Defendants of disclosure and use of the “organic acid” and, as such, the result
of these proceedings is likely to depend entirely upon GPP’s ability to demonstrate that Defendants
misappropriated and used GPP’s “organic acid” and “trade secret product” in violation of the
Injunction. Whether you choose to believe so or not, admission or denial as to the identity of the
“organic acid” is highly-relevant and material and, indeed, necessary to the defense in this action.
Defendants possess an interest in the admission or denial as to the identity of the “organic acid”
considering that GPP’s key witnesses in this matter are wholly unable to provide clear and
competent testimony as tothe identity of the “organic acid” in question. RFA No. 7 is not merely
incidental to the action, it is a paramount issue and a material element and, as such, it is reasonable
to conclude the information sought is essential to a fair trial for Defendants.

Moreover, it follows ﬁ'om the likelihood of Defendants’ ability to establish the above, GPP will
be called on to demonstrate any claimed disadvantage inherent in the Protective Order. The party
opposing the assertion of privilege having made a primafacie showing of relevancy, itis then up
to the holder of the privilege to demonstrate any claimed disadvantages of a protective order.
Bridgestone/Firestone (1992) 7 Cal. App. 4th at 1393. The burden is on the trade secret claimant
to demonstrate that an alternative to disclosure will not be unduly burdensome to the opposing side
Meet and Confer Letter
November 7, 2016
Page|3
and that it will maintain the same fair balance in the litigation that would have been achieved by
disclosure. Id.

Meeting such a burden would prove difﬁcult for GPP as its counsel participated in the drafting of
the Protective Order and stipulated to it being considered and entered by the Court. It is difﬁcult
to imagine how GPP will demonstrate that a fair balance can be maintained by withholding
disclosure in the form of an admission or denial of RFA No. 7, especially considering the fact the
Protective Order was put in place speciﬁcally with this very type of discovery in mind.

As such, Defendants’ request GPP remove the objections in the Amended Response to RFA No.
7 and either admit or deny RFA No. 7 no later than close of business on November 14, 2016.
Should such an amendment not be received on the aforementioned date, you are on notice that
Defendants will seek a further motion to compel with a renewed request for sanctions.

Su lemental Res lenses to Re uest for Admi ion Nos. 100 —l 4

In the Order dated September 27, 2016, the Court states:

RFA Nos. 100-104 request information regarding the McCardle Patent, which
forms the basis of many of Plaintiffs products. Plaintiff objects to all four RFAs on
the basis of relevance and undue burden. Subject to such objections, Plaintiff
responds “Plaintiff is without sufﬁcient information to either admit or deny the
Request and on that basis denies the Request.”

Discovery is allowed for “any matter, not privileged, that is relevant to the subject
matter” and “admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence.” (Code Civ. Proc.§ 2017.010.) Evidence is
admissible if it has a tendency to prove or disprove any disputed fact of
consequence. (Evid. Code§§ 210 & 350-351.) For discovery purposes, information
is “relevant to the subject matter” if it might reasonably assist a party in evaluating
the case, preparing for trial, or facilitating settlement. (Gonzalez v. Super. Ct.
(1995) 33 Cal.App.4th 1539, 1546.) The “relevance to the subject matter” and
“reasonably calculated to lead to discovery of admissible evidence” standards are
applied liberally with any doubt generally resolved in favor of discovery. (Colonial
Life & Accident Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) Here, Plaintiff
does not articulate why the information regarding a patent which forms the
foundation of Plaintiff’s work is irrelevant to the Injunction. Plaintiff merely states
the information is “outside the scope” of the contempt proceeding. Information
regarding the process in which Plaintiffs Trade Secret Product is made, however,
could reasonably lead to admissible evidence to help Defendants prepare for the
contempt hearing as they are charged with selling Plaintiffs Trade Secret Product.

Plaintiff further objects on the ground the RFAs are burdensome and oppressive.
To the extent Plaintiff objects on the ground of undue burden, it must proffer facts
showing the amount of work required to respond to the request. (See West Pica
Meet and Confer Letter
November 7, 2016
Page|4
Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 417-418.) Since it has not
provided facts regarding the amount of work necessary to respond to RFAs, its
undue burden objection lacks merit.

Accordingly, these objections are overruled.

As to the substance of the response, Defendants argue it does not comply with Code
of Civil Procedure section 2033.220, subdivision (0), which states, “[i]f a
responding party gives lack of information or knowledge as a reason for a failure
to admit allor part of a request for admission, that party shall state in the answer
that a reasonable inquiry concerning the matter in the particular request has been
made, and that the information known or readily obtainable is insufﬁcient to enable
that party to admit the matter.” Plaintiff here does not state a reasonable inquiry
has been made into the subject and thus the response is insufficient. (Emphasis
added).

In light of the foregoing, further responses to RFA Nos. 100-104 are warranted.
*ilnl! .

Within 20 days of the date of the ﬁling of the Order, Plaintiff shall serve
Defendants with ﬂirther, veriﬁed responses without objections to RFA Nos. 100-
104 .. ..

As to RFA Nos. 100 - 104, GPP not only continues to fail to comply with California Code of Civil
Procedure § 2033.220 but also fails to comply with the Court’s Order.

Request for Admission No. 100 requested that GPP: “Admit that the United States Patent No.
5,645,880 (McArdle) was assigned to Microsals,”

GPP responds that “[a]fter reasonable search and diligent inquiry Responding Party denies this
request on grounds that it does not have sufﬁcient information to either admit or deny the reques .”
GPP’s response is deﬁcient and fails to comply with California Code of Civil Procedure §
2033.220(c). GPP’s response fails to demonstrate good faith and suggests a callous disregard of
the Court’s Order and GPP’s discovery responsibilities. GPP clearly has access to the information
regarding the patent it assigned to Microsals, LLC at the time this request was propounded. This
denial is withoutjustiﬁcation and the statement as to lack of information is false and the fact denied
of substantial importance to the matter. The evidence suggests GPP has access to information
regarding its own patent and personal knowledge as to its assignment. Defendants demand that
GPP provide a veriﬁed, unconditional response admitting or denying to this request.

Request for Admission No. 101 requested that GPP: “Admit that GLOBAL PROTEIN
PRODUCTS, INC. never had any ownership interest in United States Patent No. 5,645,880
(McArdle).”

GPP responds that “[a]fter reasonable search and diligent inquiry Responding Party denies this
request on grounds that it does not have sufﬁcient information to either admit or deny the reques .”
Meet and Confer Letter
November 7, 2016
Pagels
GPP’s response is deﬁcient and fails to comply with California Code of Civil Procedure §
2033.220(c). GPP’s response failsto demonstrate good faith and suggests a callous disregard of
the Court’s Order and GPP’s discovery responsibilities. For GPP to suggest itdoes not have
suﬁicient information as to whether or not it had a (sic) ownership interest in the McArdle patent
is, pardon the bun, patently ridiculous. GPP, above all others, has access to the information sought
regarding the McArdle patent and whether it,in fact, had an ownership interest in such patent at
the time this request was propounded.

This denial is also without justiﬁcation and the statement as to lack of information is false and the
fact denied of substantial importance to the matter. The evidence suggests GPP has access to
information regarding its intellectual property and personal knowledge as to the ownership of the
McArdle Patent. Defendants demand that GPP provide a veriﬁed, unconditional response
admitting or denying to this request.

Request for Admission No. 102 requested that GPP: “Admit that GLOBAL PROTEIN
PRODUCTS, INC. never had any license to practice United States Patent No. 5,645,880
(McArdle)”.

GPP responds that “[a1ﬁer reasonable search and diligent inquiry Responding Party denies this
request on grounds that it does not have sufﬁcient information to either admit or deny the reques .”
GPP’s response is deﬁcient and fails to comply with California Code of Civil Procedure §
2033.220(c). GPP’s response fails to demonstrate good faith and suggests a callous disregard of
the Court’s Order and GPP’s discovery responsibilities. For GPP to suggest it does not have
sufﬁcient information as to whether it had a license to practice the McArdle patent is, pardon the
bun, patently ridiculous. GPP, above all others, has access to the licensing information regarding
the McArdle patent and whether it,in fact, had licensing and/or an ownership interest in such
patent at the time this request was propounded.

This denial is also without justiﬁcation and the statement as to lack of information is false and the
fact denied of substantial importance to the matter. The evidence suggests GPP has access to
information regarding its intellectual property and personal knowledge as to any license to practice
the McArdle Patent. Defendants demand that GPP provide a veriﬁed, unconditional response
admitting or denying to this request.

Request for Admission No. 103 requested that GPP: “Admit that the expiration date for United
States Patent No. 5,645,880 (McArdle) was July 8, 2013.”

GPP’s response is deﬁcient and fails to comply with California Code of Civil Procedure §
2033.220(c). GPP’s response fails to demonstrate good faith and suggests a callous disregard of
the Court’s Order and GPP’s discovery responsibilities. For GPP to suggest it does not have
sufﬁcient information as to whether the McArdle patent has expired is,pardon the bun, patently
ridiculous. GPP, above all others, has access to such information regarding the McArdle patent
and whether the patent, in fact, had expired at the time this request was propounded.
Meet and Confer Letter
November 7, 2016
Page|6
This denial is also without justiﬁcation and the statement as to lack of information is false and the
fact denied of substantial importance to the matter. The evidence suggests GPP has access to
information regarding its intellectual property and personal knowledge as to the expiration of the
McArdle Patent. Defendants demand that GPP provide a veriﬁed, unconditional response
admitting or denying to this request.

Request for Admission No. 104 requested that GPP: “Admit that United States Patent No.
5,645,880 (McArdle) is expired.”

GPP responds that “[a]ﬁer reasonable search and diligent inquiry Responding Party denies this
request on grounds that it does not have sufficient information to either admit or deny the request.”
GPP’s response is deﬁcient and fails to comply with California Code of Civil Procedure §
2033.220(c). GPP’s response fails to demonstrate good faith and suggests a callous disregard of
the Court’s Order and GPP’s discovery responsibilities. For GPP to suggest it does not have
sufficient information as to whether the McArdle patent has expired is,pardon the bun, patently
ridiculous. GPP, above all others, has access to such information regarding the McArdle patent
and whether the patent, in fact, had expired at the time this request was propounded.

This denial is also without justiﬁcation and the statement as to lack of information is false and the
fact denied of substantial importance to the matter. The evidence suggests GPP has access to
information regarding its intellectual property and personal knowledge as to the expiration of the
McArdle Patent. Defendants demand that GPP provide a veriﬁed, unconditional response
admitting or denying to this request.

Request for Admission No. 130 - During the hearing on September 27, 2016, I pointed out to the
Court that the Order mistakenly omitted compelling GPP to provide a supplemental response to
RFA 130 based upon the following language in the Tentative Ruling which was adopted into the
Order:

Unlike the above requests, RFA No. 130 is not directed towards the exact language
used in the Complaint, but rather to an item referenced in the Complaint which
requires additional explanation. In RFA No. 30, Defendants request Plaintiff
"[a]dmit that prior to I999, Citric Acid was known in the lettuce industry to block
the ‘PPO [polyphenol oxidase] reaction’ referenced in Paragraph l5 of YOUR
Complain .” This RFA is not asking Defendants to elaborate upon the causes of
action in the Complaint, which may no longer be relevant, but rather to discuss the
prior use of citric acid. As previously discussed, this argument could lead to
Defendants to discovering admissible evidence as itrelates to Defendants' defense
in the contempt hearing. Therefore, Plaintiffs objection to the relevance of this
RFA is overruled.

It is Defendants’ position that GPP, pursuant to the Court’s Order, is compelled to provide a
supplemental response to RFA No. 130 — which it has not done to date. Defendants demand that
GPP provide a veriﬁed, unconditional response admitting or denying to this request.
Meet and Confer Letter
November 7, 2016
Pagel7
Supplemental Responses to Form lntermgatog [7.1

Form Interrogatory 17.1 concerning Request for Admission 123 continues to be evasive and
requires a further response in compliance with the California Code of Civil Procedure § 2033.220
and the Court’s Order dated September 27, 2016 which states in part:

Defendants move to compel Plaintiff to provide ﬁirther responses to F I No. 17.1 as to RFA Nos.
122, 123, and 129.

FI No. 17.1 asks Plaintiff to state: (a) all responses to the RFA that are not unqualiﬁed admissions;
(b) all facts on which an identiﬁed response is based; (c) all persons with knowledge of those facts
and their contact information; and (d) alldocuments that support the identiﬁed response and the
contact information of the person who has each document. If a party demanding a response to an
interrogatory deems that an answer to a particular interrogatory is incomplete or an objection is
without merit, then that party may move for an order compelling a further response. (CCP, §
2030.300, subd. (a).) The burden is on the responding party to justify any objection or failure to
ﬁilly respond. (Coy v. Super. Ct.. supra, 58 Cal.2d, at pp. 220-221; see also Fairmont Ins. Co. v.
Super. Ct. (2000) 22 Cal.4th 245, 255.)

***

As to RFA Nos. 123 and 129, Defendants request Plaintiff admit an organic substance referenced
in a paragraph of the Complaint is citricacid. Plaintiff denies both RFAs without objection. In
response to FI No. 17.1(b), Plaintiff states “[t]he organic acid referenced in the Complaint is not
citric acid.” Defendants argue Plaintiffs response is deﬁcient and is not made in good faith.
Defendants do not state what other information they desire in response but simply state the
information provided is insufﬁcient. The point is well-taken, however, as Plaintiff’sresponse does
not seemingly state “all facts” which support its denial. Plaintiff could have given more detail into
what organic acid is actually present, particularly given that the Court ordered a stipulated
Protective Order. The Court ﬁnds Plaintiffs responses to F1 No. 17.1 as to RFA Nos. 123 and 129
lack detail and are evasive, and thus warrant ﬁther responses.
Within 20 days of the date of the ﬁling of the Order, Plaintiff shall serve Defendants with ﬁirther,
veriﬁed responses without objections to . .. Fl No. 17.], with respect to RFA Nos. 123 and 129.
(Emphasis added).

Request for Admission No. 123 requested that GPP: “Admit that the ‘organic acid never before
used in the industry’ referenced in Paragraph 15 of YOUR Complaint ﬁled on June 27, 2005, is
citric acid.” GPP denied and in response to 17.1 (a),GPP objected:

The Request seeks information irrelevant to the subject matter of this action which
is whether Defendant Le violated the terms of the stipulated permanent injunction
entered by this Court on January 1 1, 2006 and is not calculated to lead to admissible
evidence. Cembrook v. Superior Court (Sterling Drug, Inc.) (1961) 56 Cal. 2d 423,
428.
Meet and Confer Letter
November 7, 2016
Page|8

GPP’s relevancy objection is inappropriate for two reasons. First, GPP completely ignores the
Court’s order where itspeciﬁcally directs GPP to answer the RFAs and F1 No. 17.] “without
objections.” Secondly, in overruling the relevancy objection to Request for Admission No. 124
the Court held: “Defendants’ point iswell-taken and the Court ﬁnds the prior use of citric acid
relevant as itcould conceivably lead to admissible evidence to help them prepare for trial.” As
such, like in the case of Request for Admission No. 123, the objection in this instance is not well
taken.

Form lnterrogatory 17.1 concerning Request for Admission 129 is evasive and requires a
further good faith response pursuant to the California Code of Civil Procedure § 2033.220. Request
for Admission No. 129 requested that GPP: “Admit that the ‘organic acid never before used in the
industry’ referenced in Paragraph 15 of YOUR Complaint ﬁled on June 27, 2005, is citricacid.”
GPP denied and in response to 17.1(a), GPP objected:

The Request seeks information irrelevant to the subject matter of this action which
is whether Defendant Le violated the terms of the stipulated permanent injunction
entered by this Court on January 1 1,2006 and is not calculated to lead to admissible
evidence. Cembrook v. Superior Court (Sterling Drug, Inc.) (1961) 56 Cal. 2d 423,
428.

Again, GPP’s relevancy objection is inappropriate for two reasons. First, GPP completely ignores
the Court’s order where it speciﬁcally directs GPP to answer the RFAs and F1 No. 17.1 “without
objections.” Secondly, in overruling the relevancy objection to Request for Admission No. 129
the Court held: “Defendants’ point is well-taken and the Court ﬁnds the prior use of citric acid
relevant as itcould conceivably lead to admissible evidence to help them prepare for trial.” As
such, like in the case of Request for Admission No. 129, the objection in this instance is not well
taken.

Conclusion and Demand

In conclusion, GPP’s responses continue to be obstructive and evasive. Defendants demand that
GPP provide, no later than close of business on November 14, 2016, responses to the RFAs and to
Form lnterrogatory 17.1 without objection in compliance with the Court’s Order dated September
27, 2016. Should GPP fail to comply with the foregoing demand, Defendants will again be forced
to seek Court intervention to enforce Defendants’ right to this discovery and will renew their
request for appropriate monetary sanctions.

2'?
Most sincerely,

David A.
of MYERS
Berstem
BERSTEIN LLP
Attorneys for Defendants
Exhibit
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From: Must
Win:
To:
Cc:
Subject:
Date:
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RE: GPP v. Le - Meet and Confer Recap
Tuesday, November 22, 2016 11:09:51 AM

i will prepare amendment to RFA no. 7 and RFA no. 130 per our discussion.

Paul W. Windust
Princrpal

_B_ERDINGiWIL
WWW fax 925 320 5592
tel 925 838 2090

Will
This communication is intended to be protected by all applicable privileges. including those
protecting attorney client communications and attorney work product information.
Use of this communication or its information without approval is prohibited.

From: David Berstein [mailto:david@mybelaw.com]
Sent: Thursday, November 17, 2016 12:22 PM
To: Paul W. Windust
Cc: J.R. Dimuzio
Subject: GPP v. Le -Meet and Confer Recap

Paul,

This email will serve to recapitulate our telephone conversation earlier today regarding Defendants’
meet and confer correspondence dated November 7, 2016.

First, with regard to your Amended Response to Request for Admission No. 7, Iunderstand your
position that you presented the proposed Amended Response in the Motion for Leave to Amend
and feel the Court granted the Motion, thus, approving your proposed amendment as written in the
Motion. However, Ispecifically addressed this response during oral argument stating the position
that Defendants‘ were concerned about an objection based on trade secret privilege given the
Protective Order in place. Again, Iam certain the Court agreed with my point and stated that the
objection would be improper given the Protective Order. As such, we maintain the position that RFA
No.7 be amended to ”Admit.”

Second, I understand Plaintiff’s position with regard to the Supplemental Responses to Requests for
Admission Nos. 100 — 104. While Icontinue to have concerns about Plaintiff’s lack of information
with regard to the McArdle patent, i am cognizant of the fact that you and Mr. Cyr have contacted

Mr. Kierstead on multiple occasions and that Kierstead continues to be unable to recall if Plaintiff's
use of the McArdie Patent, the foundation of GPP's products, was through ownership or license and
whether the McArdIe Patent has expired. Iwill continue to consider the parties’ positions with
regard to these Requests and meet and confer with you further if Ibelieve additional action on
Plaintiff’s part is necessary.

Third, with regard to Request for Admission No. 130, after yet another review of the Court's Order, I

continue to maintain the position that Court in the body of its Order made it clear that the relevancy
objection was overruled and that a response was necessary. From our conversation, you agreed to
re—review the Order and get back to us as to whether you agree or disagree with Defendants’
position.

Finally, withregard to Plaintiff’s Amended Responses to Form lnterrogatory 17.1, l agreed to
withdraw Defendants’ concerns.

Ilook forward to you contacting me by Monday, November 21, 2016, to see where we stand with
regard to further amendment to RFA Nos. 7 and 130.

If any of the foregoing does not comport with your recollection of our telephone conversation,
please do not hesitate to respond. Thanks.

Most sincerely,
David A. Berstein
PM
BERSTEIN
4 Executive Circle. Suite 100
Irvine, California92614
T: 949.825.5590
E: dambelamm
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Case Info

Judge

Sunil R. Kulkarni Track Judge’s New Case

Case No.

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Document Filed Date

January 24, 2017

Case Filing Date

June 27, 2005

County

Parties

Global Protein Products, Inc. Plaintiff
Inn Foods, Inc. Intervenor
Kevin Le Defendant
Robert K. Johnson Attorneys for Plaintiffs
The VPS Companies, Inc. Intervenor
West Coast AG, LLC Defendant
Paul Windust Attorneys for Plaintiffs
Daniel LaCount Attorneys for Plaintiffs
David Berstein Attorneys for Defendants
Nicholas Myers Attorneys for Defendants
Janelle Smith Attorneys for Plaintiffs
Ivan Cisneros Attorneys for Plaintiffs
Patrick Ting Attorneys for Plaintiffs
Patrick Michael Attorneys for Plaintiffs
Marcie Keenan Attorneys for Plaintiffs
Daniel Katz Attorney
IRVING RAPPAPORT Attorney
Patrick Tuck Attorneys for Plaintiffs
Daniel McCloskey Attorney
Kenneth Kuwayti Attorney
J.R. Dimuzio Attorneys for Defendants
Brooks Cutter Attorneys for Plaintiffs
Jennifer Domer Attorneys for Plaintiffs
Omar James Attorney

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Motion-Secondary: GLOBAL PROTEIN PRODUCTS, INC. vs K. LE, et al

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