Preview
oy! FILED
NOSSAMAN LLP SAN MATEO COUNTY
PATRICK J. RICHARD (SBN 131046) SEP 26 2018
prichard@nossaman.com
50 California Street, 34th Floor Clerkof
San Francisco, CA 94111
Telephone: 415.398.3600
Facsimile: 415.398.2438
CONVO CORPORATION
S. ASHAR AHMED (SBN 256711)
ashar@convo.com
2220 Tahiti Drive
San Ramon, CA 94582
Telephone: 415.902.9086 -
“T7—clv09897
Attorneys for Defendant and Cross-Complainant ! morcom
CONVO CORPORATION ' Notice of Motion and Motion to Compel
1404034
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l | l AN -
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SAN MATEO
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15
FAIZAN BUZDAR, Case No: 17CIV03337
Plaintiff,
17 NOTICE OF MOTION AND
vs. MEMORANDUM OF POINTS“AND
18 AUTHORITIES IN SUPPORT OF
CONVO CORPORATION, and DOES 1 MOTION TO COMPEL PRODUCTION
19 through 10, inclusive, OF PLAINTIFF’S RECORDS AND FOR
MONETARY SANCTIONS
20 Defendant.
Hearing Date: Octobery | 2018
21 Time: : am
Department: Law and Motion
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Date Action Filed: July 2. 2017
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Trial Date: October 29, 2018
24 Time: 9:00 am
Department: TBD
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Filed Concurrently Herewith: Rule 3.1345
26 Statement of Requests; Declaration of Patrick
J. Richard; Proof of Service
27
28 || AND RELATED CROSS ACTIONS.
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te t
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Os _
10h gy $2
oS o10g
NOTICE AND NOTICE OF MOTION
TO THE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD
HEREIN:
Pursuant to Order Determining Disposition of Ex Parte Application, dated September 25,
2018, Defendant’s Motion to Compel Documents and Monetary Sanctions (the “Motion” will
be heard on October 12, 2018, Law & Motion Department, at 9 a.m.
This Motion is brought on the grounds that Plaintiff has objected to produce highly
relevant records requested in the Notice of Deposition and in Defendant’s Request for
Production, Third Set. Plaintiff should have produced responsive records by August 27". He
10 did not. He should have produced responsive documents at or before his long-scheduled and
11 agreed-upon deposition date of September 7", but he canceled that deposition the night before.
12 And he should have produced the responsive records at or before his deposition his deposition on
13 September 14°. He did not. It became evident during Plaintiff's deposition that he selectively
14 produced certain records, without the assistance of his counsel or any third-party vendor, and
15 without disclosing the search terms or protocol. He did not bother to look for most records until
16 the night before his re-scheduled deposition, and then dumped 6000 pages of records on counsel
17 in an e-mail link.
18 Plaintiff's deposition testimony and the pleadings in this case show that the requested
19 records are highly relevant, yet Plaintiff and his attorney refuse to produce the records, and
20 refuse even to explain the basis for a belated claim of privilege. Text messages between Plaintiff
21 and an outside director of the Defendant corporation were recently produced at the deposition of
22 that director; all of those were called for in the requests'to plaintiff, yet he failed to provide a
23 single text with either that board member, or withthe individuals identified in the Requests.
24 This Motion is based on the Declaration of Patrick J. Richard (“Richard Decl.”), the
25 Separate Statement in Support of Motion to Compel, the Memorandum of Points and
26 Authorities, the papers and records on file in this case and such other items as may be offered at
27 the hearing on this matter.
28 Mt
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MEMORANDUM OF POINTS AND AUTHORITIES
1. INTRODUCTION
Defendant Convo Corporation brings this motion to compel production of relevant
records withheld by plaintiff.
Plaintiff sued for an unpaid bonus and other compensation when the tech company he
started founder and ran out of money. When the company learned that he had been working with
another former director in Pakistan to lock out new management from their own served, steal
employees, and raise money for a new company, Convo counter-sued Plaintiff for breach of his
duties. The heart of this dispute centers on Plaintiffs dealings and communications with his
10 friend of 15 years, Mr. Hydri, and other colleagues.
Il Plaintiff has refused to provide any of his text messages or other communications with
12 Mr. Hydri, apparently even to his own attorney. Plaintiff even refused to produce his text
13 messages with another director of Convo despite a specific request; the director recently
14 produced his own copy of records that Plaintiff should have produced by withheld. And Plaintiff
15 has claimed that other communications with key witnesses and actors in this dispute have been
16 lost, including his “Facebook messenger” messages.
17 Plaintiff, who admits to being an “expert” with google and other technology, admitted
18 that he failed to produce text messages because he was waiting to see what one of Convo
19 Corporation’s employees produced first. Plaintiff dumped 6,000 pages of records on defense
20 counsel at 2 a.m. the morning of his rescheduled deposition—records that bear no control
21 numbers, contain no responsive text messages with the key actor, and which were required to
22 have been produced weeks earlier in response to Convo’s document request.
23 Plaintiff is obviously playing games prohibited by the Discovery Act of 1986. He
24 pretended to settle this case and for 7 months dragged out final documentation. Then he changed
25 his mind, refused to sign, and insisted “immediately” on a raft of burdensome discovery. But he
26 delayed his own deposition, then canceled it at 4:30 the night before, then refused to produce
27 records. Indeed, he did not even search for the 6,000 pages of records—most of which are
28 Corporate Convo records he stole when he quit the company, until the morning of his
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rescheduled deposition a week later. Then he asserted a “joint defense” privilege with Mr.
Hydri and other witnesses in Pakistan—when pushed, Plaintiff's lawyer could produce no legal
or factual basis to substantiate this fanciful claim.
Convo Corporation brings this Motion to compel Plaintiff to cooperative with discovery,
and to produce the withheld records, and to pay Convo’s reasonable expenses incurred in
bringing the motin.
il. BRIEF STATEMENT OF PERTINENT FACTS
Convo Corporation was incorporated in 2013 when it merged with Scrybe, Inc. a
company formed years earlier by Plaintiff. Plaintiff was both the CEO and a board member of
10 Convo, as well as a shareholder. He had been for years attempting to produce an office
11 collaboration application and storage data tool. Convo worked with software engineers in
12 Pakistan employed by a wholly-owned subsidiary, Canbi Ltd. Plaintiff was also a director and
13 shareholder of Canbi. Pursuant to a “Services Agreement” between Canbi and Convo, Convo
14 owns all developments and intellectual property developed by Canbi and its employees.
15 When Convo, under plaintiff's management, ran out of money in 2015, plaintiff obtained
16 anew round of investors. By late 2016 and early 2017, those investors became concerned when
17 Convo again ran out of money with no plan to improve. After the Board changed Plaintiff's title
18 to head of products to allow for better management and marketing, plaintiff grew increasingly
19 upset. He refused to provide to new management with the passwords to allow access to its own
20 servers. He and/or his long-time friend in Pakistan, Sheryar Hydri, requested all employees in
21 Pakistan sign a statement affirming that they would not work with new management. He had
22 meetings with investors in Pakistan to fund a new company. He eventually quit Convo in June
23 2017. He filed suit for a bonus and other benefits he claimed had accrued and were owed by
24 Convo.
25 Based on Plaintiffs evident double-dealing before and after he left Convo, Convo filed a
26 cross-complaint for breach of his duties. At the core of the dispute are plaintiff's dealings and
27 communications with Sheryar Hydri and other Canbi employees and former employees in
28 Pakistan. Indeed, Mr. Hydri sued Convo in Pakistan, claiming to act on behalf of Convo’s
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wholly-owned subsidiary Canbi. Mr. Hydri and Plaintiff claim to be represented by the same
attorney in Pakistan and Plaintiff has asserted a “joint defense” privilege as to communications
with Mr. Hydri.
The evidence presented to Plaintiff during his deposition, and submitted with this Motion,
establishes two key facts:
1) Plaintiff and Hydri signatures on bogus Services Agreement Amendment In
2017 a fabricated “amendment” to the Convo-Canbi Services Agreement surfaced in filings by
Hydri in Pakistan—it purports to be signed by both Hydri and Plaintiff, and it purports to be
dated 2014; no such record exists in the records of Convo in the US. Hydri relies on the made up
10 “amendment” to assert rights against Convo;
if 2) False Claim of Canbi Ownership In September 2016, as tensions increased between
12 Plaintiff and his board in the US, individuals in Pakistan file an attestation with the Pakistan
13 Securities and Exchange Commission identifying 4 shareholders of Canbi, each owning % of the
14 company: Plaintiff, Hassan, Irfan and Hydri. No mention is made of Scrybe or Convo, or the
15 documented sale by Plaintiff and all other shareholders of Canbi of all of their shares years
16 earlier.
17 These and other developments, and Plaintiffs denials of any secret understanding with
18 Hydri, require the immediate production of Plaintiff's communications with the identified
19 individuals.
20 Defendant seeks relevant discovery in the following categories, as set forth more
21 particularly in the accompanying Rule 3.1345 Separate Statement:
22 > Text messages and other communications between Plaintiff and Sheryar Hydri;
23 > Text messages and other communications with Saj Khan;
24 > Documents regarding Plaintiff's compensation from Convo;
25 > Documents regarding Canbi;
26 > Passwords for any account of Convo Corporation, including its subsidiaries.
27 Further, the court should order that Plaintiff provide his phone and all access to his
28 ICloud-stored text messages to a third-party vendor to process and apply search terms to assure
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that Plaintiff complies with any order of production.
Ti. LEGAL ARGUMENT
A Defendant and Cross-complainant Convo seeks highly relevant records
Any party may obtain discovery regarding any matter, not privileged, that is relevant to
the subject matter involved if the matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible evidence. Code Civ. Proc. §
2017.010. Section 2017.010 specifically provides that “[d]iscovery may relate to the claim or
defense of the party seeking discovery, or any party to the action.” /d.
Second, Plaintiff has conceded that there are communications between him and Mr.
10 Hydri regarding their collaboration, but has refused to produce those records. (Richard Decl., §4-
11 5,7.) Plaintiff has the obligation to provide full and complete responses to discovery. (Deyo v.
12 Kilbourne (1978) 84 Cal.App.3d 771, 782-784.)
13 Defendant has repeatedly requested such communications and documents in its previous
14 document requests, and in the Notice of Deposition for Plaintiff, without avail. Richard Decl. ¥
IS (6,7 Ex. D and E (See Requests Nos. 45-47 and 49 for Production of Documents (Set 3) and
16 Notice of Deposition, Request Nos. 3,4,6 and 10).
17 These communications are relevant as they relate directly to the claims and cross-claims
18 in this case.
19 Iv, DEFENDANT’S EGREGIOUS FAILURE TO CONDUCT A DILIGENT SEARCH
OF DOCUMENTS IS EVIDENT BY THE THIRD PARTY’S PRODUCTION
20
Defendant’s failure to diligently search document in response to Plaintiff's requests for
21
documents is evident from the fact that a third party, David Straus, has produced text messages
22
with Plaintiff that should have been produced by Plaintiff Buzdar. (Richard Decl., §7.)
23
v. PLAINTIFF HAS MADE GOOD FAITH EFFORTS TO OBTAIN THESE
24 DOCUMENTS AND FUTHER DEPOSITION OF CONRAD
25 Immediately after discovering that Plaintiff had failed to produce responsive documents
26 that are in his possession, counsel for Defendant raised the issue during the deposition and in
27 several e-mails. (Richard Decl., {7-8 and Exhibit F thereto.) Plaintiff's counsel has declined to
28 produce the records, or even to provide a substantive response supporting Plaintiff's refusal.
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On September 5, 2018, for example, defense counsel identified several categories of
records that had not been produced by Plaintiff and requested that Plaintiff withdraw his
objections:
We have significant problems with your belated and incomplete
production, which we will also need to discuss during the
call. You produced e-mails from your own account, apparently
forwarded to you by your clients or third parties. Your clients did
not produce a single communication with or regarding ACES or
any texts, You have raised spurious objections to specific and
legitimate requests. I do expect your client to bring hard copy
responsive documents to each of the categories in the deposition
notice and subpoena. (Richard Decl., 7, Exh.F.)
Plaintiff's counsel has not withdrawn the objections to producing relevant records.
10
Plaintiff's counsel has not responded with facts and legal authority to support the broad and ill-
ll
defined claim of “privilege” between Plaintiff and his long-time friend and business partner, Mr.
12
Hydri. Neither individual is an attorney.
13
14 VI. SANCTIONS ARE REQUIRED BECAUSE DEFENDANTS’ CONDUCT LACKS
ANY SUBTANTIAL JUSTIFICATION
15
Plaintiff Buzar and/or his attorneys should be required to pay Defendant’s costs,
16
including reasonable attorneys’ fees, because Plaintiff's conduct lacks the substantial
17
justification needed to avoid an award of sanctions. Monetary sanctions are required in this case
18
because Plaintiff interposed meritless objections to legitimate discovery, failed to show the
19
“substantial justification” required to avoid an award of monetary sanctions under CCP §§2023
20
and 2030, and failed to respond adequately to reasonable attempts to meet and confer. Alliance
21
Bank y. Murray, 161 Cal. App. 3d 1 (1984). Sanctions are especially appropriate here because
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Plaintiff delayed both his search and his production of responsive records, all of which should
23
have been provided in August, not 2 a.m. the morning of his rescheduled deposition.
24
Further, Plaintiffs failure to meet and confer, especially in light of his earlier failure to
25
appear for his deposition, provide an independent basis for awarding the reasonable costs of this
26
Application and Motion. Richard Decl. 4 7-8; Professional Career Colleges, Magna Inst. Inc.
27
vy. Superior Court (1989) 207 Cal.App.3d 490. The Defendant has engaged in a reasonable and
28
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meaningful meet and confer in an effort to avoid this Motion, and only brings this Motion as a
last resort. Richard Decl. 7-8. Defendant seeks $3,500 in reasonable attorneys fees in
connection with this Motion. Richard Decl. { 8
WIL. CONCLUSION
For the above-stated reasons, Defendant respectfully requests that the Court grant this
Motion and order production of all responsive records within 48 hours of the hearing, to be
processed by a third-party vendor.
ae] Aol!
Dated: September
25, 2018 NOSSAMAN LLP
PATRI )RICHARD
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aT dk J. Richard
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Attorneys for Defend: i and Cross-Complainant
14 CONVO CORPORATION
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oy! FILED NOSSAMAN LLP SAN MATEO COUNTY PATRICK J. RICHARD (SBN 131046) SEP 26 2018 prichard@nossaman.com 50 California Street, 34th Floor Clerkof San Francisco, CA 94111 Telephone: 415.398.3600 Facsimile: 415.398.2438 CONVO CORPORATION S. ASHAR AHMED (SBN 256711) ashar@convo.com 2220 Tahiti Drive San Ramon, CA 94582 Telephone: 415.902.9086 - “T7—clv09897 Attorneys for Defendant and Cross-Complainant ! morcom CONVO CORPORATION ' Notice of Motion and Motion to Compel 1404034 10 11 l | l AN - 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN MATEO 14 15 FAIZAN BUZDAR, Case No: 17CIV03337 Plaintiff, 17 NOTICE OF MOTION AND vs. MEMORANDUM OF POINTS“AND 18 AUTHORITIES IN SUPPORT OF CONVO CORPORATION, and DOES 1 MOTION TO COMPEL PRODUCTION 19 through 10, inclusive, OF PLAINTIFF’S RECORDS AND FOR MONETARY SANCTIONS 20 Defendant. Hearing Date: Octobery | 2018 21 Time: : am Department: Law and Motion 22 Date Action Filed: July 2. 2017 23 Trial Date: October 29, 2018 24 Time: 9:00 am Department: TBD 25 Filed Concurrently Herewith: Rule 3.1345 26 Statement of Requests; Declaration of Patrick J. Richard; Proof of Service 27 28 || AND RELATED CROSS ACTIONS. -1- NOTICE OF MOTION AND MPA ISO MTC PRODUCTION OF PLAINTIFF’S RECORDS 56645754.v1 te t 1 Os _ 10h gy $2 oS o10g NOTICE AND NOTICE OF MOTION TO THE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: Pursuant to Order Determining Disposition of Ex Parte Application, dated September 25, 2018, Defendant’s Motion to Compel Documents and Monetary Sanctions (the “Motion” will be heard on October 12, 2018, Law & Motion Department, at 9 a.m. This Motion is brought on the grounds that Plaintiff has objected to produce highly relevant records requested in the Notice of Deposition and in Defendant’s Request for Production, Third Set. Plaintiff should have produced responsive records by August 27". He 10 did not. He should have produced responsive documents at or before his long-scheduled and 11 agreed-upon deposition date of September 7", but he canceled that deposition the night before. 12 And he should have produced the responsive records at or before his deposition his deposition on 13 September 14°. He did not. It became evident during Plaintiff's deposition that he selectively 14 produced certain records, without the assistance of his counsel or any third-party vendor, and 15 without disclosing the search terms or protocol. He did not bother to look for most records until 16 the night before his re-scheduled deposition, and then dumped 6000 pages of records on counsel 17 in an e-mail link. 18 Plaintiff's deposition testimony and the pleadings in this case show that the requested 19 records are highly relevant, yet Plaintiff and his attorney refuse to produce the records, and 20 refuse even to explain the basis for a belated claim of privilege. Text messages between Plaintiff 21 and an outside director of the Defendant corporation were recently produced at the deposition of 22 that director; all of those were called for in the requests'to plaintiff, yet he failed to provide a 23 single text with either that board member, or withthe individuals identified in the Requests. 24 This Motion is based on the Declaration of Patrick J. Richard (“Richard Decl.”), the 25 Separate Statement in Support of Motion to Compel, the Memorandum of Points and 26 Authorities, the papers and records on file in this case and such other items as may be offered at 27 the hearing on this matter. 28 Mt -2- NOTICE OF MOTION AND MPA ISO MTC PRODUCTION OF PLAINTIFF’S RECORDS 56645754.v1 MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION Defendant Convo Corporation brings this motion to compel production of relevant records withheld by plaintiff. Plaintiff sued for an unpaid bonus and other compensation when the tech company he started founder and ran out of money. When the company learned that he had been working with another former director in Pakistan to lock out new management from their own served, steal employees, and raise money for a new company, Convo counter-sued Plaintiff for breach of his duties. The heart of this dispute centers on Plaintiffs dealings and communications with his 10 friend of 15 years, Mr. Hydri, and other colleagues. Il Plaintiff has refused to provide any of his text messages or other communications with 12 Mr. Hydri, apparently even to his own attorney. Plaintiff even refused to produce his text 13 messages with another director of Convo despite a specific request; the director recently 14 produced his own copy of records that Plaintiff should have produced by withheld. And Plaintiff 15 has claimed that other communications with key witnesses and actors in this dispute have been 16 lost, including his “Facebook messenger” messages. 17 Plaintiff, who admits to being an “expert” with google and other technology, admitted 18 that he failed to produce text messages because he was waiting to see what one of Convo 19 Corporation’s employees produced first. Plaintiff dumped 6,000 pages of records on defense 20 counsel at 2 a.m. the morning of his rescheduled deposition—records that bear no control 21 numbers, contain no responsive text messages with the key actor, and which were required to 22 have been produced weeks earlier in response to Convo’s document request. 23 Plaintiff is obviously playing games prohibited by the Discovery Act of 1986. He 24 pretended to settle this case and for 7 months dragged out final documentation. Then he changed 25 his mind, refused to sign, and insisted “immediately” on a raft of burdensome discovery. But he 26 delayed his own deposition, then canceled it at 4:30 the night before, then refused to produce 27 records. Indeed, he did not even search for the 6,000 pages of records—most of which are 28 Corporate Convo records he stole when he quit the company, until the morning of his -3- NOTICE OF MOTION AND MPA ISO MTC PRODUCTION OF PLAINTIFF'S RECORDS. 56645754.v1 rescheduled deposition a week later. Then he asserted a “joint defense” privilege with Mr. Hydri and other witnesses in Pakistan—when pushed, Plaintiff's lawyer could produce no legal or factual basis to substantiate this fanciful claim. Convo Corporation brings this Motion to compel Plaintiff to cooperative with discovery, and to produce the withheld records, and to pay Convo’s reasonable expenses incurred in bringing the motin. il. BRIEF STATEMENT OF PERTINENT FACTS Convo Corporation was incorporated in 2013 when it merged with Scrybe, Inc. a company formed years earlier by Plaintiff. Plaintiff was both the CEO and a board member of 10 Convo, as well as a shareholder. He had been for years attempting to produce an office 11 collaboration application and storage data tool. Convo worked with software engineers in 12 Pakistan employed by a wholly-owned subsidiary, Canbi Ltd. Plaintiff was also a director and 13 shareholder of Canbi. Pursuant to a “Services Agreement” between Canbi and Convo, Convo 14 owns all developments and intellectual property developed by Canbi and its employees. 15 When Convo, under plaintiff's management, ran out of money in 2015, plaintiff obtained 16 anew round of investors. By late 2016 and early 2017, those investors became concerned when 17 Convo again ran out of money with no plan to improve. After the Board changed Plaintiff's title 18 to head of products to allow for better management and marketing, plaintiff grew increasingly 19 upset. He refused to provide to new management with the passwords to allow access to its own 20 servers. He and/or his long-time friend in Pakistan, Sheryar Hydri, requested all employees in 21 Pakistan sign a statement affirming that they would not work with new management. He had 22 meetings with investors in Pakistan to fund a new company. He eventually quit Convo in June 23 2017. He filed suit for a bonus and other benefits he claimed had accrued and were owed by 24 Convo. 25 Based on Plaintiffs evident double-dealing before and after he left Convo, Convo filed a 26 cross-complaint for breach of his duties. At the core of the dispute are plaintiff's dealings and 27 communications with Sheryar Hydri and other Canbi employees and former employees in 28 Pakistan. Indeed, Mr. Hydri sued Convo in Pakistan, claiming to act on behalf of Convo’s -4- NOTICE OF MOTION AND MPA ISO MTC PRODUCTION OF PLAINTIFF’S RECORDS 56645754.v1 wholly-owned subsidiary Canbi. Mr. Hydri and Plaintiff claim to be represented by the same attorney in Pakistan and Plaintiff has asserted a “joint defense” privilege as to communications with Mr. Hydri. The evidence presented to Plaintiff during his deposition, and submitted with this Motion, establishes two key facts: 1) Plaintiff and Hydri signatures on bogus Services Agreement Amendment In 2017 a fabricated “amendment” to the Convo-Canbi Services Agreement surfaced in filings by Hydri in Pakistan—it purports to be signed by both Hydri and Plaintiff, and it purports to be dated 2014; no such record exists in the records of Convo in the US. Hydri relies on the made up 10 “amendment” to assert rights against Convo; if 2) False Claim of Canbi Ownership In September 2016, as tensions increased between 12 Plaintiff and his board in the US, individuals in Pakistan file an attestation with the Pakistan 13 Securities and Exchange Commission identifying 4 shareholders of Canbi, each owning % of the 14 company: Plaintiff, Hassan, Irfan and Hydri. No mention is made of Scrybe or Convo, or the 15 documented sale by Plaintiff and all other shareholders of Canbi of all of their shares years 16 earlier. 17 These and other developments, and Plaintiffs denials of any secret understanding with 18 Hydri, require the immediate production of Plaintiff's communications with the identified 19 individuals. 20 Defendant seeks relevant discovery in the following categories, as set forth more 21 particularly in the accompanying Rule 3.1345 Separate Statement: 22 > Text messages and other communications between Plaintiff and Sheryar Hydri; 23 > Text messages and other communications with Saj Khan; 24 > Documents regarding Plaintiff's compensation from Convo; 25 > Documents regarding Canbi; 26 > Passwords for any account of Convo Corporation, including its subsidiaries. 27 Further, the court should order that Plaintiff provide his phone and all access to his 28 ICloud-stored text messages to a third-party vendor to process and apply search terms to assure -5- NOTICE OF MOTION AND M PA ISO MTC PRODUCTION OF PLAINTIFF’S RECORDS 56645754.v1 that Plaintiff complies with any order of production. Ti. LEGAL ARGUMENT A Defendant and Cross-complainant Convo seeks highly relevant records Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Code Civ. Proc. § 2017.010. Section 2017.010 specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery, or any party to the action.” /d. Second, Plaintiff has conceded that there are communications between him and Mr. 10 Hydri regarding their collaboration, but has refused to produce those records. (Richard Decl., §4- 11 5,7.) Plaintiff has the obligation to provide full and complete responses to discovery. (Deyo v. 12 Kilbourne (1978) 84 Cal.App.3d 771, 782-784.) 13 Defendant has repeatedly requested such communications and documents in its previous 14 document requests, and in the Notice of Deposition for Plaintiff, without avail. Richard Decl. ¥ IS (6,7 Ex. D and E (See Requests Nos. 45-47 and 49 for Production of Documents (Set 3) and 16 Notice of Deposition, Request Nos. 3,4,6 and 10). 17 These communications are relevant as they relate directly to the claims and cross-claims 18 in this case. 19 Iv, DEFENDANT’S EGREGIOUS FAILURE TO CONDUCT A DILIGENT SEARCH OF DOCUMENTS IS EVIDENT BY THE THIRD PARTY’S PRODUCTION 20 Defendant’s failure to diligently search document in response to Plaintiff's requests for 21 documents is evident from the fact that a third party, David Straus, has produced text messages 22 with Plaintiff that should have been produced by Plaintiff Buzdar. (Richard Decl., §7.) 23 v. PLAINTIFF HAS MADE GOOD FAITH EFFORTS TO OBTAIN THESE 24 DOCUMENTS AND FUTHER DEPOSITION OF CONRAD 25 Immediately after discovering that Plaintiff had failed to produce responsive documents 26 that are in his possession, counsel for Defendant raised the issue during the deposition and in 27 several e-mails. (Richard Decl., {7-8 and Exhibit F thereto.) Plaintiff's counsel has declined to 28 produce the records, or even to provide a substantive response supporting Plaintiff's refusal. -6- NOTICE OF MOTION AND MPA ISO MTC PRODUCTION OF PLAINTIFF’S RECORDS. 56645754.v1 On September 5, 2018, for example, defense counsel identified several categories of records that had not been produced by Plaintiff and requested that Plaintiff withdraw his objections: We have significant problems with your belated and incomplete production, which we will also need to discuss during the call. You produced e-mails from your own account, apparently forwarded to you by your clients or third parties. Your clients did not produce a single communication with or regarding ACES or any texts, You have raised spurious objections to specific and legitimate requests. I do expect your client to bring hard copy responsive documents to each of the categories in the deposition notice and subpoena. (Richard Decl., 7, Exh.F.) Plaintiff's counsel has not withdrawn the objections to producing relevant records. 10 Plaintiff's counsel has not responded with facts and legal authority to support the broad and ill- ll defined claim of “privilege” between Plaintiff and his long-time friend and business partner, Mr. 12 Hydri. Neither individual is an attorney. 13 14 VI. SANCTIONS ARE REQUIRED BECAUSE DEFENDANTS’ CONDUCT LACKS ANY SUBTANTIAL JUSTIFICATION 15 Plaintiff Buzar and/or his attorneys should be required to pay Defendant’s costs, 16 including reasonable attorneys’ fees, because Plaintiff's conduct lacks the substantial 17 justification needed to avoid an award of sanctions. Monetary sanctions are required in this case 18 because Plaintiff interposed meritless objections to legitimate discovery, failed to show the 19 “substantial justification” required to avoid an award of monetary sanctions under CCP §§2023 20 and 2030, and failed to respond adequately to reasonable attempts to meet and confer. Alliance 21 Bank y. Murray, 161 Cal. App. 3d 1 (1984). Sanctions are especially appropriate here because 22 Plaintiff delayed both his search and his production of responsive records, all of which should 23 have been provided in August, not 2 a.m. the morning of his rescheduled deposition. 24 Further, Plaintiffs failure to meet and confer, especially in light of his earlier failure to 25 appear for his deposition, provide an independent basis for awarding the reasonable costs of this 26 Application and Motion. Richard Decl. 4 7-8; Professional Career Colleges, Magna Inst. Inc. 27 vy. Superior Court (1989) 207 Cal.App.3d 490. The Defendant has engaged in a reasonable and 28 -7- NOTICE OF MOTION AND MPA ISO MTC PRODUCTION OF PLAINTIFF'S RECORDS 56645754.v1 meaningful meet and confer in an effort to avoid this Motion, and only brings this Motion as a last resort. Richard Decl. 7-8. Defendant seeks $3,500 in reasonable attorneys fees in connection with this Motion. Richard Decl. { 8 WIL. CONCLUSION For the above-stated reasons, Defendant respectfully requests that the Court grant this Motion and order production of all responsive records within 48 hours of the hearing, to be processed by a third-party vendor. ae] Aol! Dated: September 25, 2018 NOSSAMAN LLP PATRI )RICHARD 10 ll 12 aT dk J. Richard 13 Attorneys for Defend: i and Cross-Complainant 14 CONVO CORPORATION 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- NOTICE OF MOTION AND MPA ISO MTC PRODUCTION OF PLAINTIFF’S RECORDS 56645754.v1