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1 CLAIRE E. COCHRAN (SBN 222529)
GREG STEVENS (PRO HAC VICE)
2 LAW OFFICES OF CLAIRE COCHRAN, P.C. ELECTRONICALLY
100 PINE STREET, SUITE 1250
3 SAN FRANCISCO, CA 94111 F I L E D
TELEPHONE: (415) 580- 6019 Superior Court of California,
County of San Francisco
4 FACSIMILE: (415) 745- 3301
08/04/2021
5 Attorneys for Plaintiff, Clerk of the Court
BY: EDNALEEN ALEGRE
Nathan Peter Runyon Deputy Clerk
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10 NATHAN PETER RUNYON, CASE NO. CGC-19-581099
11 Plaintiff,
12 v. PLAINTIFF’S SEPARATE STATEMENT
IN SUPPORT OF MOTION TO COMPEL
13 PAYWARD, INC., a California Corporation FURTHER RESPONSES FROM
d/b/a KRAKEN; and KAISER NG an PAYWARD, INC. TO SUPPLEMENTAL
14 individual and DOES 1-50, inclusive, REQUESTS FOR PRODUCTION OF
DOCUMENTS AND PRIVILEGED LOG
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Defendant. [Concurrently Filed Herewith: Notice of
16 Motion and Motion to Compel; Declaration of
Claire E. Cochran in Support of Motion to
17 Compel; and (Proposed) Order]
18 Date: August 30, 2021
Time: 9:00 A.M.
19 Dept.: 302
Judge: Hon. Ethan P. Schulman
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Complaint Filed: March 27, 2020
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF
MOTION TO COMPEL FURTHER RESPONSES
1 Plaintiff NATHAN PETER RUNYON, (hereinafter “Plaintiff”) submits this Separate
2 Statement of Disputed Answers in support of their Motion to Compel Defendants PAYWARD,
3 INC. d/b/a KRAKEN, (hereinafter “Defendants”) to further respond to Plaintiffs’ Plaintiff’s
4 Request for Production of Documents, Set Two and Demand for Privilege Log.
5 OUTSTANDING DOCUMENTS AND RESPECTIVE REQUESTS
6 To date, Defendants have failed to produce multiple documents that are not only relevant
7 but are vital to discovery in this case. Outlined below are the documents the Plaintiff seeks in
8 order to properly prepare for trial along with the Request(s) that the document is directly
9 responsive to:
10 a. Google document sent between Plaintiff Runyon and Defendant Ng in preparation for
11 June Board consent referenced in PAYWARD004792 – PAYWARD004793
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REQUEST FOR PRODUCTION NO. 60:
13 b. Copies of all emails Mr. Ng sent to the Board of Directors of Payward concerning
requested amendments to the 2011 Stock Plan from January 1, 2017 through August 1,
14 2019.
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REQUEST FOR PRODUCTION NO. 63:
16 c. The cap table Mr. Ng emailed Mr. Runyon on July 19, 2018 with the following
employees information made available (i.e. redactions removed) : Artur Sapek, Greg
17 Bell, Joseph Onorati, Johanes Schmitt, Pamela Merkadue, Max Caplan, Andrew
Sellner, Colin Mayfield, Steven Christie, Brandon Gath and David Yom, Timon Rapp
18 and Jody Johnston.
d.
19 REQUEST FOR PRODUCTION NO. 65:
20 e. Copies of any and all Board amendments and Unanimous written consent sent to the
Board of Directors in June and/or July 2019 to approve.
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REQUEST FOR PRODUCTION NO. 72:
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f. Any document of any type, including but not limited to an EXCEL spreadsheet and/or
23 Google document, including all versions of any such document, created by Mr. Runyon
with data used by Kaiser Ng to prepare the June 2019 unanimous written consent of
24 Payward’s Board of Directors re stock options and vesting periods.
25 REQUEST FOR PRODUCTION NO. 73:
26 g. All documents that constitute, discuss or otherwise relate to the June 2019 unanimous
written consent of Payward’s Board of Directors, including all communications of any
27 sort, including but not limited to emails, addressing such documents.
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF
MOTION TO COMPEL FURTHER RESPONSES
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2 h. Google document at link referenced on PAYWARD005166 sent between Plaintiff
3 Runyon and “@stevec” (Steve Christie – Kraken’s Compliance Officer)
4 REQUEST FOR PRODUCTION NO. 69:
5 i. All communications of any sort, including but not limited to Slack messages and/or
emails, between Steve Christie and Mr. Runyon during the period beginning June 1,
6 2018 and continuing to the present.
j.
7 REQUEST FOR PRODUCTION NO. 71:
Any document of any type, including but not limited to an EXCEL spreadsheet and/or
8 Google document, including all versions of any such document, created by Mr. Runyon
tracking country codes and related OPEC data.
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k. Payward, Inc. Employee Handbook
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11 REQUEST FOR PRODUCTION NO. 81:
Any and all documents supporting any contention that Pete Runyon was terminated for
12 poor work product.
13 l. Payward, Inc. Performance Reviews
14 REQUEST FOR PRODUCTION NO. 81:
Any and all documents supporting any contention that Pete Runyon was terminated for
15 poor work product.
16 m. Payward, Inc. Performance Improvement Plan (“PIP”)
17 REQUEST FOR PRODUCTION NO. 81:
Any and all documents supporting any contention that Pete Runyon was terminated for
18 poor work product.
19 n. Kaiser Ng’s Docusign History
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REQUEST FOR PRODUCTION NO. 58:
21 o. A copy of Mr. Ng’s Docusign Account history which reflects any all requests and
amendments he transmitted via Docusign to the Board of Directors of Payward to sign
22 from January 1, 2017 through current.
23 PRIVILEGE LOG
24 Through discovery in this case, Plaintiff has sought many documents that have been
25 identified as privileged by Defendants. These document requests (for both identification and
26 production) are contained in Plaintiff’s Request for Production of Documents, Set Two, Nos. 56,
27 57, 58, 89, 60, 61, 62, 63, 64, 65, 67, 71, 72, 76, and 81. A review of the responses to this
28 discovery illustrates an on-going issue in the case as Defendants assert privileges without
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF
MOTION TO COMPEL FURTHER RESPONSES
1 identifying the documents themselves, the people to whom they are addressed or from, or why
2 they should be privileged – just that they are a “word” or “text” document and are
3 “attorney/client” and must therefore privileged by the attorney/client doctrine. This is wholly
4 unacceptable. First and foremost, there are no attorneys listed in these Log positions to justify a
5 withholding of these documents based upon attorney/client privilege. Second, the documents
6 themselves are not properly identified for examination by the parties. See below for example of
7 insufficient document identification. (Excerpt of 8/19/2020 Privilege Log produced in its entirety
8 as Exhibit D to Plaintiff’s Motion to Compel).
9 630 May 14, 2019 PDF Attorney-Client
631 June 29, 2019 Kaiser Ng Pete Email Board Attorney-Client
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632 June 29, 2019 Word Attorney-Client
11 633 June 29, 2019 Text Attorney-Client
634 June 29, 2019 Pete Kaiser Ng Email Re: Board Attorney-Client
12 635 June 29, 2019 Word Attorney-Client
636 June 29, 2019 Text Attorney-Client
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FAILURE TO DIRECT PLAINTIFF TO RESPONSIVE DOCUMENTS TO ITS
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REQUEST
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Cal. Civ. Pro. § 2031.280 requires a responding party to identify which demand for inspection
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a document produced corresponds to. In its numerous meet and confer attempts, Plaintiff has
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requested that Defendant abide by its duty to direct Plaintiff to which documents are responsive to
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which categories of documents as required by the Discovery Act. Defendant has wholly refused to
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abide by this duty. Plaintiff has requested that Defendant identify by Bates Number which
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documents it alleges are responsive to categories:
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22 REQUEST FOR PRODUCTION NO. 59:
23 Payward’s full and complete 2011 Stock Option Plan.
24 REQUEST FOR PRODUCTION NO. 60:
Copies of all emails Mr. Ng sent to the Board of Directors of Payward concerning requested
25 amendments to the 2011 Stock Plan from January 1, 2017 through August 1, 2019.
26 REQUEST FOR PRODUCTION NO. 61:
27 Security Audit printout in Carta for Artur Sapek, Greg Bell, Joseph Onorati, Johanes Schmitt,
Pamela Merkadue, Max Caplan, Andrew Sellner, Colin Mayfield, Steven Christie, Brandon Gath
28 and David Yom, Timon Rapp and Jody Johnston.
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF
MOTION TO COMPEL FURTHER RESPONSES
1 REQUEST FOR PRODUCTION NO. 62:
Capitalization table from December 2017 showing information for Artur Sapek, Greg Bell,
2 Joseph Onorati, Johanes Schmitt, Pamela Merkadue, Max Caplan, Andrew Sellner, Colin
Mayfield, Steven Christie, Brandon Gath and David Yom, Timon Rapp and Jody Johnston.
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REQUEST FOR PRODUCTION NO. 63:
4
The cap table Mr. Ng emailed Mr. Runyon on July 19, 2018 with the following
5 employees information made available (i.e. redactions removed) : Artur Sapek, Greg Bell,
Joseph Onorati, Johanes Schmitt, Pamela Merkadue, Max Caplan, Andrew Sellner, Colin
6 Mayfield, Steven Christie, Brandon Gath and David Yom, Timon Rapp and Jody Johnston.
7 REQUEST FOR PRODUCTION NO. 64:
Exhibit A, B and D attached and referenced to the Action by Unanimous Written Consent of the
8 Board of Directors of Payward, Inc., signed in November 2017.
9 REQUEST FOR PRODUCTION NO. 76:
10 All communications of any type, including but not limited to emails and/or Slack messages, sent
by any officer or employee of Payward, including but not limited to Kaiser Ng and Christina Yee,
11 concerning gender neutral bathrooms at Payward.
12 REQUEST FOR PRODUCTION NO. 81:
Any and all documents supporting any contention that Pete Runyon was terminated for poor work
13 product.
14 To date, Payward has refused to identify the documents it contends it has produced in response
15 to these requests. Upwards of 8,000 pages of responsive documents have been produced by
16 Defendant to date, and it is an unreasonable burden to place on Plaintiff to attempt to locate
17 responsive documents in this voluminous production. Accordingly, Plaintiff respectfully requests
18 that the Court order Defendant Payward to identify which documents are responsive to each
19 respective category.
20 GOOD CAUSE TO COMPEL:
21 First and foremost, the documents that the Defendant has failed to produce are not only
22 directly responsive to the Plaintiff’s requests for production as set forth above, but the documents
23 are relevant and material to the Plaintiff’s case in chief.
24 Furthermore, the Responding Party is required to provide an adequate description of
25 documents claimed to be privileged. Best Products, Inc. v. Superior Court, 119 Cal. App. 4th
26 1181, 1190, 15 Cal. Rptr. 3d 154 (2d Dist. 2004). Further, any and all documents being withheld
27 on the basis of privilege must be identified. (supra, Best Products at 155.). In this instance, a
28 review of Defendant’s responses to discovery indicate that various privileges have been asserted
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF
MOTION TO COMPEL FURTHER RESPONSES
1 over materials that are known to exist, and yet, they are not identified in Defendant’s log.1
2 Plaintiff has identified several redactions/exemptions from production made by Defendant which
3 it claims were made on the grounds of privilege, however, Defendants offer no explanation how
4 the document is privileged. The Defendant has large areas of redaction in documents that are key
5 to this litigation but fails to give justification as to the nature of the redactions. Lastly, several
6 documents are not identified in the privilege log by their name, content, or recipient list. This
7 intentional smoke screen makes clear and honest disclosure of the facts impossible, defeating the
8 entire purpose of the Discovery Act. It is indicative instead that the Defendants are withholding
9 documents in bad faith.
10 Third, where “a defendant employer hopes to prevail by showing that it investigated an
11 employee’s complaint and took action appropriate to the findings of the investigation, then it will
12 have to put the adequacy of the investigation directly at issue, and cannot stand on the attorney-
13 client privilege or work product doctrine to preclude a thorough examination of its adequacy. The
14 defendant cannot have it both ways. If it chooses this course, it does so with the understanding
15 that the attorney-client privilege and the work product doctrine are thereby waived.” Wellpoint
16 Health Networks, Inc. v. Superior Court (1997) 59 Cal. App. 4th 110. Here, the Defendants claim
17 there was no issues surrounding the unilateral change to employees vesting schedules, no
18 violations of law, and no whistleblowing the behalf of the Plaintiff, however, the Defendants are
19 unwilling to turn over documents vital to that claim. Similarly, Defendant claims there were no
20 OFAC violations, and thus no whistleblowing on the part of Plaintiff, however, the Defendant is
21 unwilling to provide documentation sought on the matter. A review of the privilege log provided,
22 indicates that there some texts, documents, and emails that Defendants consider privileged and are
23 apparently unwilling to give a description of what those documents are. A Plaintiff could not
24 know the basis for privilege, and whether or not he should seek court assistance to overcome that
25 claim to privilege without vital, basic information about the communication.
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Plaintiff has identified (2) Google Documents referenced in Slack messages produced by Defendants that the
28 Defendant refuses to produce in response to the Plaintiff’s discovery responses
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF
MOTION TO COMPEL FURTHER RESPONSES
1 The Plaintiff is not on a fishing expedition for documents that are irrelevant in this case.
2 The Plaintiff has instead concisely requested a handful of highly relevant documents, to which the
3 Defendant has refused without a legal basis. Furthermore, the Plaintiff has requested that the
4 Defendant respect its statutory duty to provide an adequate privilege log for the documents it has
5 kept from disclosure, and to identify which documents are responsive to certain request numbers
6 as required by the Discovery Act. The failure to provide basic information required by the law is
7 intentional. When asked to correct this, Defendants have repeatedly failed to do so. Therefore, it is
8 assumed and inferred that Defendants are being willfully obstructive and are withholding these
9 documents and their descriptions in bad faith. Accordingly, a motion to compel further responses
10 is warranted.
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12 Dated: August 4, 2021 Respectfully submitted,
13 LAW OFFICES OF CLAIRE COCHRAN
14
15 By:
Claire E. Cochran, Esq.
16 Attorneys for Plaintiff, Nathan Peter Runyon
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF
MOTION TO COMPEL FURTHER RESPONSES
1 PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
2
I am employed in the County of San Francisco, State of California, I am over the age of
3 eighteen years and am not a party to this action; my business address is Law Offices of Claire
Cochran, 100 Pine Street, Suite 1250, San Francisco, CA. 94111, and my business email address is
4 jackie@clairecochranlegal.com.
5 On August 4, 2021, I served a copy of the foregoing document(s) described as
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
6 FURTHER RESPONSES on the interested parties in this action at their last known address as set
forth below by taking the action described below:
7
Withers Worldwide
8 Kimberly Pallen
Christopher N. LaVigne
9 505 Sansome Street, 2nd Floor,
San Francisco, CA 94111
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Christopher.lavigne@withersworldwide.com
11 Kimberly.pallen@withersworldwide.com
Attorneys for Defendants
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13 BY MAIL: I placed the above-mentioned document(s) in sealed envelope(s) addressed
as set forth above, and deposited each envelope in the mail at San Francisco, California.
14 Each envelope was mailed with postage thereon fully prepaid.
15 BY OVERNIGHT DELIVERY: I placed the above-mentioned document(s) in sealed
envelope(s) designated by the carrier, with delivery fees provided for, and addressed as
16 set forth above, and deposited the above-described document(s) with [Name of Carrier]
in the ordinary course of business, by depositing the document(s) in a facility regularly
17 maintained by the carrier or delivering the document(s) to an authorized driver for the
carrier.
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BY PERSONAL DELIVERY: I placed the above-mentioned document(s) in sealed
19 envelope(s), and caused personal delivery by [Name of Carrier] of the document(s)
listed above to the person(s) at the address(es) set forth above.
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þ BY ELECTRONIC MAIL: I served the above-mentioned document electronically on
21 the parties listed at the email addresses above and, to the best of my knowledge, the
transmission was complete and without error in that I did not receive an electronic
22 notification to the contrary.
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24 I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.
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Executed on August 4, 2021, at San Francisco, California.
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Jackie Zwirn
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF
MOTION TO COMPEL FURTHER RESPONSES
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1 CLAIRE E. COCHRAN (SBN 222529) GREG STEVENS (PRO HAC VICE) 2 LAW OFFICES OF CLAIRE COCHRAN, P.C. ELECTRONICALLY 100 PINE STREET, SUITE 1250 3 SAN FRANCISCO, CA 94111 F I L E D TELEPHONE: (415) 580- 6019 Superior Court of California, County of San Francisco 4 FACSIMILE: (415) 745- 3301 08/04/2021 5 Attorneys for Plaintiff, Clerk of the Court BY: EDNALEEN ALEGRE Nathan Peter Runyon Deputy Clerk 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 NATHAN PETER RUNYON, CASE NO. CGC-19-581099 11 Plaintiff, 12 v. PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL 13 PAYWARD, INC., a California Corporation FURTHER RESPONSES FROM d/b/a KRAKEN; and KAISER NG an PAYWARD, INC. TO SUPPLEMENTAL 14 individual and DOES 1-50, inclusive, REQUESTS FOR PRODUCTION OF DOCUMENTS AND PRIVILEGED LOG 15 Defendant. [Concurrently Filed Herewith: Notice of 16 Motion and Motion to Compel; Declaration of Claire E. Cochran in Support of Motion to 17 Compel; and (Proposed) Order] 18 Date: August 30, 2021 Time: 9:00 A.M. 19 Dept.: 302 Judge: Hon. Ethan P. Schulman 20 Complaint Filed: March 27, 2020 21 22 23 24 25 26 27 28 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES 1 Plaintiff NATHAN PETER RUNYON, (hereinafter “Plaintiff”) submits this Separate 2 Statement of Disputed Answers in support of their Motion to Compel Defendants PAYWARD, 3 INC. d/b/a KRAKEN, (hereinafter “Defendants”) to further respond to Plaintiffs’ Plaintiff’s 4 Request for Production of Documents, Set Two and Demand for Privilege Log. 5 OUTSTANDING DOCUMENTS AND RESPECTIVE REQUESTS 6 To date, Defendants have failed to produce multiple documents that are not only relevant 7 but are vital to discovery in this case. Outlined below are the documents the Plaintiff seeks in 8 order to properly prepare for trial along with the Request(s) that the document is directly 9 responsive to: 10 a. Google document sent between Plaintiff Runyon and Defendant Ng in preparation for 11 June Board consent referenced in PAYWARD004792 – PAYWARD004793 12 REQUEST FOR PRODUCTION NO. 60: 13 b. Copies of all emails Mr. Ng sent to the Board of Directors of Payward concerning requested amendments to the 2011 Stock Plan from January 1, 2017 through August 1, 14 2019. 15 REQUEST FOR PRODUCTION NO. 63: 16 c. The cap table Mr. Ng emailed Mr. Runyon on July 19, 2018 with the following employees information made available (i.e. redactions removed) : Artur Sapek, Greg 17 Bell, Joseph Onorati, Johanes Schmitt, Pamela Merkadue, Max Caplan, Andrew Sellner, Colin Mayfield, Steven Christie, Brandon Gath and David Yom, Timon Rapp 18 and Jody Johnston. d. 19 REQUEST FOR PRODUCTION NO. 65: 20 e. Copies of any and all Board amendments and Unanimous written consent sent to the Board of Directors in June and/or July 2019 to approve. 21 REQUEST FOR PRODUCTION NO. 72: 22 f. Any document of any type, including but not limited to an EXCEL spreadsheet and/or 23 Google document, including all versions of any such document, created by Mr. Runyon with data used by Kaiser Ng to prepare the June 2019 unanimous written consent of 24 Payward’s Board of Directors re stock options and vesting periods. 25 REQUEST FOR PRODUCTION NO. 73: 26 g. All documents that constitute, discuss or otherwise relate to the June 2019 unanimous written consent of Payward’s Board of Directors, including all communications of any 27 sort, including but not limited to emails, addressing such documents. 28 2 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES 1 2 h. Google document at link referenced on PAYWARD005166 sent between Plaintiff 3 Runyon and “@stevec” (Steve Christie – Kraken’s Compliance Officer) 4 REQUEST FOR PRODUCTION NO. 69: 5 i. All communications of any sort, including but not limited to Slack messages and/or emails, between Steve Christie and Mr. Runyon during the period beginning June 1, 6 2018 and continuing to the present. j. 7 REQUEST FOR PRODUCTION NO. 71: Any document of any type, including but not limited to an EXCEL spreadsheet and/or 8 Google document, including all versions of any such document, created by Mr. Runyon tracking country codes and related OPEC data. 9 k. Payward, Inc. Employee Handbook 10 11 REQUEST FOR PRODUCTION NO. 81: Any and all documents supporting any contention that Pete Runyon was terminated for 12 poor work product. 13 l. Payward, Inc. Performance Reviews 14 REQUEST FOR PRODUCTION NO. 81: Any and all documents supporting any contention that Pete Runyon was terminated for 15 poor work product. 16 m. Payward, Inc. Performance Improvement Plan (“PIP”) 17 REQUEST FOR PRODUCTION NO. 81: Any and all documents supporting any contention that Pete Runyon was terminated for 18 poor work product. 19 n. Kaiser Ng’s Docusign History 20 REQUEST FOR PRODUCTION NO. 58: 21 o. A copy of Mr. Ng’s Docusign Account history which reflects any all requests and amendments he transmitted via Docusign to the Board of Directors of Payward to sign 22 from January 1, 2017 through current. 23 PRIVILEGE LOG 24 Through discovery in this case, Plaintiff has sought many documents that have been 25 identified as privileged by Defendants. These document requests (for both identification and 26 production) are contained in Plaintiff’s Request for Production of Documents, Set Two, Nos. 56, 27 57, 58, 89, 60, 61, 62, 63, 64, 65, 67, 71, 72, 76, and 81. A review of the responses to this 28 discovery illustrates an on-going issue in the case as Defendants assert privileges without 3 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES 1 identifying the documents themselves, the people to whom they are addressed or from, or why 2 they should be privileged – just that they are a “word” or “text” document and are 3 “attorney/client” and must therefore privileged by the attorney/client doctrine. This is wholly 4 unacceptable. First and foremost, there are no attorneys listed in these Log positions to justify a 5 withholding of these documents based upon attorney/client privilege. Second, the documents 6 themselves are not properly identified for examination by the parties. See below for example of 7 insufficient document identification. (Excerpt of 8/19/2020 Privilege Log produced in its entirety 8 as Exhibit D to Plaintiff’s Motion to Compel). 9 630 May 14, 2019 PDF Attorney-Client 631 June 29, 2019 Kaiser Ng Pete Email Board Attorney-Client 10 632 June 29, 2019 Word Attorney-Client 11 633 June 29, 2019 Text Attorney-Client 634 June 29, 2019 Pete Kaiser Ng Email Re: Board Attorney-Client 12 635 June 29, 2019 Word Attorney-Client 636 June 29, 2019 Text Attorney-Client 13 FAILURE TO DIRECT PLAINTIFF TO RESPONSIVE DOCUMENTS TO ITS 14 REQUEST 15 Cal. Civ. Pro. § 2031.280 requires a responding party to identify which demand for inspection 16 a document produced corresponds to. In its numerous meet and confer attempts, Plaintiff has 17 requested that Defendant abide by its duty to direct Plaintiff to which documents are responsive to 18 which categories of documents as required by the Discovery Act. Defendant has wholly refused to 19 abide by this duty. Plaintiff has requested that Defendant identify by Bates Number which 20 documents it alleges are responsive to categories: 21 22 REQUEST FOR PRODUCTION NO. 59: 23 Payward’s full and complete 2011 Stock Option Plan. 24 REQUEST FOR PRODUCTION NO. 60: Copies of all emails Mr. Ng sent to the Board of Directors of Payward concerning requested 25 amendments to the 2011 Stock Plan from January 1, 2017 through August 1, 2019. 26 REQUEST FOR PRODUCTION NO. 61: 27 Security Audit printout in Carta for Artur Sapek, Greg Bell, Joseph Onorati, Johanes Schmitt, Pamela Merkadue, Max Caplan, Andrew Sellner, Colin Mayfield, Steven Christie, Brandon Gath 28 and David Yom, Timon Rapp and Jody Johnston. 4 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES 1 REQUEST FOR PRODUCTION NO. 62: Capitalization table from December 2017 showing information for Artur Sapek, Greg Bell, 2 Joseph Onorati, Johanes Schmitt, Pamela Merkadue, Max Caplan, Andrew Sellner, Colin Mayfield, Steven Christie, Brandon Gath and David Yom, Timon Rapp and Jody Johnston. 3 REQUEST FOR PRODUCTION NO. 63: 4 The cap table Mr. Ng emailed Mr. Runyon on July 19, 2018 with the following 5 employees information made available (i.e. redactions removed) : Artur Sapek, Greg Bell, Joseph Onorati, Johanes Schmitt, Pamela Merkadue, Max Caplan, Andrew Sellner, Colin 6 Mayfield, Steven Christie, Brandon Gath and David Yom, Timon Rapp and Jody Johnston. 7 REQUEST FOR PRODUCTION NO. 64: Exhibit A, B and D attached and referenced to the Action by Unanimous Written Consent of the 8 Board of Directors of Payward, Inc., signed in November 2017. 9 REQUEST FOR PRODUCTION NO. 76: 10 All communications of any type, including but not limited to emails and/or Slack messages, sent by any officer or employee of Payward, including but not limited to Kaiser Ng and Christina Yee, 11 concerning gender neutral bathrooms at Payward. 12 REQUEST FOR PRODUCTION NO. 81: Any and all documents supporting any contention that Pete Runyon was terminated for poor work 13 product. 14 To date, Payward has refused to identify the documents it contends it has produced in response 15 to these requests. Upwards of 8,000 pages of responsive documents have been produced by 16 Defendant to date, and it is an unreasonable burden to place on Plaintiff to attempt to locate 17 responsive documents in this voluminous production. Accordingly, Plaintiff respectfully requests 18 that the Court order Defendant Payward to identify which documents are responsive to each 19 respective category. 20 GOOD CAUSE TO COMPEL: 21 First and foremost, the documents that the Defendant has failed to produce are not only 22 directly responsive to the Plaintiff’s requests for production as set forth above, but the documents 23 are relevant and material to the Plaintiff’s case in chief. 24 Furthermore, the Responding Party is required to provide an adequate description of 25 documents claimed to be privileged. Best Products, Inc. v. Superior Court, 119 Cal. App. 4th 26 1181, 1190, 15 Cal. Rptr. 3d 154 (2d Dist. 2004). Further, any and all documents being withheld 27 on the basis of privilege must be identified. (supra, Best Products at 155.). In this instance, a 28 review of Defendant’s responses to discovery indicate that various privileges have been asserted 5 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES 1 over materials that are known to exist, and yet, they are not identified in Defendant’s log.1 2 Plaintiff has identified several redactions/exemptions from production made by Defendant which 3 it claims were made on the grounds of privilege, however, Defendants offer no explanation how 4 the document is privileged. The Defendant has large areas of redaction in documents that are key 5 to this litigation but fails to give justification as to the nature of the redactions. Lastly, several 6 documents are not identified in the privilege log by their name, content, or recipient list. This 7 intentional smoke screen makes clear and honest disclosure of the facts impossible, defeating the 8 entire purpose of the Discovery Act. It is indicative instead that the Defendants are withholding 9 documents in bad faith. 10 Third, where “a defendant employer hopes to prevail by showing that it investigated an 11 employee’s complaint and took action appropriate to the findings of the investigation, then it will 12 have to put the adequacy of the investigation directly at issue, and cannot stand on the attorney- 13 client privilege or work product doctrine to preclude a thorough examination of its adequacy. The 14 defendant cannot have it both ways. If it chooses this course, it does so with the understanding 15 that the attorney-client privilege and the work product doctrine are thereby waived.” Wellpoint 16 Health Networks, Inc. v. Superior Court (1997) 59 Cal. App. 4th 110. Here, the Defendants claim 17 there was no issues surrounding the unilateral change to employees vesting schedules, no 18 violations of law, and no whistleblowing the behalf of the Plaintiff, however, the Defendants are 19 unwilling to turn over documents vital to that claim. Similarly, Defendant claims there were no 20 OFAC violations, and thus no whistleblowing on the part of Plaintiff, however, the Defendant is 21 unwilling to provide documentation sought on the matter. A review of the privilege log provided, 22 indicates that there some texts, documents, and emails that Defendants consider privileged and are 23 apparently unwilling to give a description of what those documents are. A Plaintiff could not 24 know the basis for privilege, and whether or not he should seek court assistance to overcome that 25 claim to privilege without vital, basic information about the communication. 26 27 1 Plaintiff has identified (2) Google Documents referenced in Slack messages produced by Defendants that the 28 Defendant refuses to produce in response to the Plaintiff’s discovery responses 6 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES 1 The Plaintiff is not on a fishing expedition for documents that are irrelevant in this case. 2 The Plaintiff has instead concisely requested a handful of highly relevant documents, to which the 3 Defendant has refused without a legal basis. Furthermore, the Plaintiff has requested that the 4 Defendant respect its statutory duty to provide an adequate privilege log for the documents it has 5 kept from disclosure, and to identify which documents are responsive to certain request numbers 6 as required by the Discovery Act. The failure to provide basic information required by the law is 7 intentional. When asked to correct this, Defendants have repeatedly failed to do so. Therefore, it is 8 assumed and inferred that Defendants are being willfully obstructive and are withholding these 9 documents and their descriptions in bad faith. Accordingly, a motion to compel further responses 10 is warranted. 11 12 Dated: August 4, 2021 Respectfully submitted, 13 LAW OFFICES OF CLAIRE COCHRAN 14 15 By: Claire E. Cochran, Esq. 16 Attorneys for Plaintiff, Nathan Peter Runyon 17 18 19 20 21 22 23 24 25 26 27 28 7 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES 1 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 2 I am employed in the County of San Francisco, State of California, I am over the age of 3 eighteen years and am not a party to this action; my business address is Law Offices of Claire Cochran, 100 Pine Street, Suite 1250, San Francisco, CA. 94111, and my business email address is 4 jackie@clairecochranlegal.com. 5 On August 4, 2021, I served a copy of the foregoing document(s) described as PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL 6 FURTHER RESPONSES on the interested parties in this action at their last known address as set forth below by taking the action described below: 7 Withers Worldwide 8 Kimberly Pallen Christopher N. LaVigne 9 505 Sansome Street, 2nd Floor, San Francisco, CA 94111 10 Christopher.lavigne@withersworldwide.com 11 Kimberly.pallen@withersworldwide.com Attorneys for Defendants 12 13 BY MAIL: I placed the above-mentioned document(s) in sealed envelope(s) addressed as set forth above, and deposited each envelope in the mail at San Francisco, California. 14 Each envelope was mailed with postage thereon fully prepaid. 15 BY OVERNIGHT DELIVERY: I placed the above-mentioned document(s) in sealed envelope(s) designated by the carrier, with delivery fees provided for, and addressed as 16 set forth above, and deposited the above-described document(s) with [Name of Carrier] in the ordinary course of business, by depositing the document(s) in a facility regularly 17 maintained by the carrier or delivering the document(s) to an authorized driver for the carrier. 18 BY PERSONAL DELIVERY: I placed the above-mentioned document(s) in sealed 19 envelope(s), and caused personal delivery by [Name of Carrier] of the document(s) listed above to the person(s) at the address(es) set forth above. 20 þ BY ELECTRONIC MAIL: I served the above-mentioned document electronically on 21 the parties listed at the email addresses above and, to the best of my knowledge, the transmission was complete and without error in that I did not receive an electronic 22 notification to the contrary. 23 24 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 25 Executed on August 4, 2021, at San Francisco, California. 26 27 Jackie Zwirn 28 8 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES