Preview
1 Claire E. Cochran (SBN 222529)
Natalie A. Xifo (SBN 280930) ELECTRONICALLY
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LAW OFFICES OF CLAIRE COCHRAN, P.C.
100 Pine Street, Suite 1250
F I L E D
3 Superior Court of California,
San Francisco, CA 94111 County of San Francisco
4 Telephone: (415) 580-6019 05/04/2021
Facsimile: (415) 745-3301 Clerk of the Court
BY: EDNALEEN ALEGRE
5 Deputy Clerk
6 Attorneys for Plaintiff
NATHAN PETER RUNYON
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10 [UNLIMITED JURISDICTION]
11 Case No. CGC-19-581099
NATHAN PETER RUNYON
12 DECLARATION OF CLAIRE E.
Plaintiff, COCHRAN IN SUPPORT OF
13 PLAINTIFF’S OPPOSITION TO
v. DEFENDANTS’ MOTION FOR
14 SANCTIONS
15 PAYWARD, INC., a California Corporation
d/b/a KRAKEN; and KAISER NG an individual Date: May 17, 2021
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and DOES 1-50, inclusive Time: 9:00 a.m.
17 Dept.: 301
Defendants.
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1 DECLARATION OF CLAIRE E. COCHRAN ESQ.
2 I, CLAIRE E. COCHRAN, ESQ., declare as follows:
3 1. I am an attorney licensed to practice law in the State of California. I am the
4 Owner and Principal of the law firm Law Offices of Claire Cochran, P.C. (“LOCC”), attorneys
5 of record for Plaintiff NATHAN PETER RUNYON (“Plaintiff”) in the within civil proceeding.
6 If called upon as a witness, I could and would competently testify to the following:
7 2. This Declaration is in support of Plaintiff’s Opposition to Defendants’ Motion
8 for Sanctions.
9 3. Plaintiff provided documents to our office at the outset of our relationship in
10 early September 2019. When he provided these documents to our office, on two jump drives, he
11 identified some documents as relating to his whistleblower claims and some documents as (then
12 irrelevant) work task related documents.
13 4. Plaintiff had downloaded the documents to the jump drives (July 27 and 28,
14 2019) prior to termination (August 1, 2019) with a work provided USB drive, so some of the
15 documents related to tasks he had been working on at Payward.
16 5. Plaintiff’s initial demand letter was dispatched on September 13, 2019.
17 6. Defendant Payward declined to attend mediation with Plaintiff at that time.
18 7. Prior to the filing of the Civil complaint in this matter, Claire Cochran and
19 Natalie Xifo met and conferred with Payward in house Counsel Marybeth Buchanan and
20 Michael O’Connor and Christopher LaVigne about the contents of Plaintiff’s proposed civil
21 complaint. Plaintiff edited his civil complaint pursuant to these meet and confers with opposing
22 counsel and filed his complaint on or about November 26, 2019 and then filed a First Amended
23 Complaint on or about January 6, 2020.
24 8. Payward propounded requests for production, set one on Plaintiff on or about
25 February 24, 2020.
26 9. Defendant provided responses to this discovery, in the form of document
27 production, on or about March 5, 2020 and further production on April 13, 2020. Plaintiff
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DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION FOR SANCTIONS
1 provided the documents he had identified to Counsel as related to his whistleblower claims, not
2 what he considered then to be irrelevant work documents.
3 10. On March 26, 2020, Payward served Request for Admissions, Form
4 Interrogatories [General] and [Employment]. On June 1, 2020, Payward served a Request for
5 Production of Documents, Set Two only seeking documents and communications associated
6 with Plaintiff renting out his San Francisco apartment on Airbnb.
7 11. On or about March 27, 2020, Payward filed an action against Plaintiff in District
8 Court, see Case No. 3:20-cv-2130, or Exhibit A, to Defendants’ motion for sanctions.
9 Payward’s Complaint alleges that Plaintiff stole/hacked Confidential Payward documents after
10 he was terminated from his employment with Payward.
11 12. On January 29, 2021, Payward re-noticed the deposition of Pete Runyon 1. There
12 had been no intervening requests for production since Payward’s last request in 2020.
13 13. Mr. LaVigne, Counsel for Payward, accused my law firm of using these stolen
14 documents unethically and indicated that he would be attempting to examine our law firm files
15 and forensics under the Crime Fraud Exception to the attorney/client privilege. Mr. LaVigne
16 made this statement to me in mid-February 2021.
17 14. In response to both Payward’s District Court Action, and Mr. LaVigne’s
18 statements regarding the Crime Fraud exception to the attorney/client privilege, my firm began
19 the process of locating an expert to make sure we handled Plaintiff’s documents correctly.
20 15. At this juncture, given the nature of the allegations in the District Court action,
21 we determined we needed to produce any and all documents in on Plaintiff’s USB flash drives.
22 16. At this juncture, the parties were engaged in arbitration with Employee 5
23 (mentioned in our client’s civil complaint). During the discovery (depositions) in this matter it
24 became clear that additional documents on Runyon’s jump drives were relevant to the instant
25 litigation.
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Due to COVID-19 pandemic and the Shelter at Home Orders for the country, Plaintiff’s deposition originally set
for March 12, 2020, was required to be rescheduled.
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DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION FOR SANCTIONS
1 17. On March 1, 2021, my associate Natalie Xifo spoke with Tom Howe, at Howe
2 Law Firm, a law firm that specializes and is an expert in the field of the production and
3 extraction of ESI. Ms. Xifo was advised by Mr. Howe that we should not simply produce the
4 documents in the regular course of discovery, nor should we just return the USB flash drive to
5 Opposing Counsel. We were advised that we needed to retain an expert to forensically image
6 the USB flash drives Plaintiff created prior to production. However, Mr. Howe would not
7 review the USB flash drives absent a Court Order or a stipulation from both parties that the
8 Confidential data can be examined by an expert or third party.
9 PLAINTIFF’S EX PARTE APPLICATIONS FILED IN DEPARTMENT 206 & 302
10 18. Plaintiff noticed and filed two ex parte applications. One ex parte request was a
11 discovery related motion to be heard in Department 302 on March 11, 2021. The second ex
12 parte request was a trial continuance set to be heard in Department 206 on March 12, 2021. The
13 following details the issues surrounding the back-to-back ex parte requests due to CourtCall’s
14 confusion in patching the appearances to the incorrect courtroom on March 11, 2021.
15 a. On or about March 10, 2020, Plaintiff provided opposing counsel with
16 notice of his ex parte application requesting that the court grant an Order Shortening Time for
17 Plaintiff’s Notice of Motion and Motion to Appoint a Special Master to assist in the
18 management of the jump drives. We provided notice that Plaintiff’s motion would be heard in
19 Department 302 at 11:00 a.m. on March 11, 2021. We followed the ex parte policies as
20 outlined on the San Francisco Superior Court website which required the pleadings be emailed
21 to contestdept302tr@sftc.org on the morning of the ex parte. As required, we appeared via
22 CourtCall. We did not fail to appear at the ex parte hearing as Defendants have misstated in
23 their underlying motion.
24 b. On March 11, 2021, Ms. Maya Sorensen of LOCC appeared via
25 CourtCall however, she was patched through to Department 206 and not 302. This was
26 incorrect. CourtCall patched Ms. Sorensen through to the wrong department and had her appear
27 in the department that was set to hear Plaintiff’s ex parte motion to continue the trial the
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DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION FOR SANCTIONS
1 following day March 12. The clerk in Department 206 was confused why Plaintiff’s request was
2 not hand delivered to the court room and further she had no notice of the ex parte request. My
3 staff immediately contacted the clerk in the department 302, where the ex parte should have
4 been heard. Sean, the clerk in Department 302, emailed LOCC to advise us to give CourtCall
5 his name for permission to appear in Department 302 and not 206. Sean explained that 302 and
6 206 conduct their ex parte hearings differently and any discovery related applications must be
7 heard in 302. We confirmed that we understood that difference yet somehow CourtCall placed
8 us in Department 206. Sean then called my associate, Natalie Xifo and left her a voicemail
9 advising us to simply move the ex parte to 302 that day. Unfortunately, at that point Department
10 206 dismissed the case because they realized Plaintiff had properly noticed the discovery
11 motion for 302 and it should never have been in 206. Opposing counsel hung up and we could
12 not get them to reappear in 302 as Sean suggested.
13 c. As a result of CourtCall incorrectly placing Ms. Sorenson in Department
14 206 for our discovery hearing, which was properly noticed for Department 302, Plaintiff was
15 required to re-notice the ex parte application for Monday, March 15, 2021.
16 d. On or about March 10, 2021, Plaintiff provided notice of his ex parte
17 request to Continue the Trial and all associated deadlines to attempt to avoid any prejudice to
18 Payward by any delays occasioned by the advice of the expert regarding Plaintiff’s document
19 production. This ex parte application was to be heard in Department 206 at 11:00 a.m. on
20 March 12, 2021. We followed the ex parte policies as outlined on the San Francisco Superior
21 Court website about how to request an ex parte request to continue trial. We provided notice to
22 Defendants on March 10, 2021, at 9:33 a.m. and served them with Plaintiff’s ex parte
23 application several hours later.
24 e. On March 12, 2021, when Plaintiff’s ex parte request to Continue the
25 Trial was being heard in Department 206, Ms. Pallen on her own accord, not because
26 Plaintiff noticed the hearing in Department 302, chose to appear in Department 302. She
27 appeared only to see if Plaintiff’s request to appoint a special master would be called given the
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DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION FOR SANCTIONS
1 confusion over this on March 11, 2021 when the matter was sent to the wrong department. She
2 knew Ms. Sorenson was in Department 206 and that no one from LOCC was appearing in
3 Department 302 that day. Plaintiff did not file, schedule or notice an ex parte on March 12,
4 2021 in Department 302, as such LOCC did not appear. LOCC did not fail to make an
5 appearance as misstated in the Declaration of Mr. LaVigne. Ms. Sorensen of LOCC was in the
6 correct court room, Department 206, the department Plaintiff properly noticed for his ex parte
7 request to continue trial. We had no idea Ms. Pallen was going to appear in Department 302 and
8 engage in ex parte communications with the Court without us present. At 5:20 p.m. on March
9 12, 2021, Ms. Pallen emailed Ms. Sorenson advising her that she appeared that morning in
10 Department 302 and alleged Judge Schulman called Plaintiff’s ex parte request to appoint a
11 special master and when Plaintiff did not appear he told her to tell counsel for Plaintiff that we
12 had requested relief under the incorrect statute. Ms. Pallen alleged that that Judge Schulman
13 advised her that Defendants could consider and agree to some sort of third-party discovery
14 referee. A true and correct copy of Ms. Pallen’s March 12, 2021 is attached hereto as Exhibit
15 “A.” However, Ms. Pallen refused to stipulate to a joint discovery referee and instead continued
16 to demand the return of the USB drives absent a forensic examination.
17 19. On March 15, 2021, after this Court denied Plaintiff’s motion to appoint a joint
18 expert and/or special master we retained an expert in Los Angeles that was able to conduct a
19 forensic examination of the USB drive and we immediately produced the contents and a
20 Declaration from this expert on what he discovered on the USB flash drives, how they were
21 downloaded and saved. (Exhibit B, See Declaration of Kevin Cohen filed concurrently
22 herein).
23 20. On March 29, 2021, we produced ALL documents on the jump drives with the
24 related Declaration from the expert Kevin Cohen on Payward.
25 21. Yesterday, May 3, 2021, Defense Counsel reached out for dates for the continued
26 deposition of Plaintiff. Lead Counsel is currently on vacation, has provided this information to
27 Payward’s Counsel, and yet, the request for deposition is only on dates upon which Counsel is
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DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION FOR SANCTIONS
1 out of town.
2 22. Additional facts that relate to this litigation:
3 a. My law firm employees four total lawyers, all of whom had children at home
4 during the last calendar year due to Covid. Given this situation, and its
5 hardships, all parties had backed off on litigation for a portion of 2020.
6 b. My associate and second chair, Natalie Xifo, was on maternity leave from
7 mid-September 2020 through mid-January 2021.
8 c. I was on medical leave from November 2020 through January 2021.
9 23. I am the attorney of record for THIRD PARTY WITNESS in a AAA Arbitration
10 proceeding filed by Payward dba Kraken against THIRD PARTY WITNESS for violating the
11 terms of her Severance Agreement, including, but not limited to, violating the terms of her
12 agreement not to encourage another in their pursuit of litigation against THIRD PARTY
13 WITNESS, and/or not to disparage Payward dba Kraken, and/or not to speak about any work
14 activities, work product, or other topic contained therein. THIRD PARTY WITNESS also has a
15 Confidentiality Agreement, referenced by the Severance Agreement, from her time as an
16 employee of Payward dba Kraken.
17 24. I am not representing THIRD PARTY WITNESS as Third-Party Counsel in this
18 matter, but as her attorney of record in the AAA Arbitration I am beholden to provide
19 information upon which her testimony can proceed in the instant case.
20 25. As noted in paragraph 2 of the Declaration of Mr. LaVigne, THIRD PARTY
21 WITNESS is currently being sued in AAA Arbitration for violating the terms of her Severance
22 Agreement and/or her Confidentiality Agreement, incorporated by reference.
23 26. In support of its claims that THIRD PARTY WITNESS violated the terms of her
24 Severance Agreement, Payward dba Kraken has identified conversations and interactions with
25 Plaintiff, Plaintiff in the instant matter, as evidence against THIRD PARTY WITNESS.
26 27. Payward dba Kraken has issued a subpoena for THIRD PARTY WITNESS’s
27 testimony in the instant matter.
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DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION FOR SANCTIONS
1 28. The subpoenaed topics seek information that would be, without an agreement
2 from Payward dba Kraken, in violation of THIRD PARTY WITNESS’s Severance Agreement
3 and/or Confidentiality Agreement.
4 29. Out of an abundance of caution, both myself, and THIRD PARTY WITNESS’s
5 third party Counsel, Brendan Ford, have asked that Payward provide a statement of assurance
6 that none of her deposition testimony provided in the instant case be used against THIRD
7 PARTY WITNESS in the instant AAA Action, or any other action, as a violation of her
8 Severance Agreement, Confidentiality Agreement and/or Protective Order in the AAA
9 Arbitration.
10 30. Payward has entered into this Agreement as it relates to Plaintiff so he can
11 provide testimony in THIRD PARTY WITNESS’s arbitration pursuant to their subpoena. It
12 makes little sense for them not to have this same agreement in the instant matter.
13 31. In response to Payward’s requests for dates for THIRD PARTY WITNESS’s
14 deposition in this matter, every time I have provided dates of availability and a related request
15 that Payward stipulate that THIRD PARTY WITNESS’s testimony will not be used as evidence
16 against her with regard to claims that she has violated her Severance Agreement, et al.
17 32. To date Mr. Ford continues to propose dates for the deposition of his client and
18 has yet to receive any response from Ms. Pallen or Mr. LaVigne.
19 33. This Declaration is not intended to be, nor shall it be construed as being, a waiver
20 of attorney-client privilege or attorney-client work product doctrine. I have no client authority
21 to waive the attorney work-product doctrine, and I do not intend to do so by anything set forth
22 herein.
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24 I declare under penalty of perjury under the laws of the State of California that the
25 foregoing is true and correct.
26 Executed on May 03, 2021 at San Francisco, California.
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CLAIRE E. COCHRAN
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DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION FOR SANCTIONS
Exhibit A
From: Pallen, Kimberly
Date: Fri, Mar 12, 2021 at 5:20 PM
Subject: Runyon v. Payward - Ex Parte Application for OST for Plaintiff's Notice of Motion to Appoint a Special Master
To: Maya Sørensen
Cc: Natalie@clairecochranlegal.com , Claire Cochran , LaVigne, Christopher , Sanichar, Lalindra , Moran, Pamela
Dear Maya,
This morning, I appeared in Department 302 on your Ex Parte Application for an Order Shortening Time for Plaintiff’s Notice of Motion to Appoint a Special Master because we were concerned that the application would be called given the
confusion with the clerk in Department 206 on Thursday. The case was, in fact, called, and Judge Schulman asked me to pass along information to you. He said that, as we pointed out, you have moved under the wrong statute. He also said
that, if Defendants agree to some sort of third party discovery referee, he asked us to collectively consider coming to an agreement pursuant to CCP s. 638.
Our position is, and remains, that a discovery referee is not proper under these facts and unavailable on an ex parte basis.
Thanks,
Kimberly Pallen
Special Counsel
Litigation
t +1 415 872 3221
f +1 415 549 2451
withersworldwide.com | my profile
Secretary: Pamela Moran t +1 415 872 3233
Withers Bergman LLP
505 Sansome Street, 2nd Floor, San Francisco, CA 94111
Withers Bergman LLP - 505 Sansome Street, 2nd Floor, San Francisco, CA 94111 T: +1 415 872 3200 F: +1 415 549 2480
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Exhibit B
1 11 and "Goodwin Email re 11.27.2017 Option Grant". In addition to the two directories, on
2 11 July 28, 2019 a file was also copied to the Black 128GB USB. On July 29, 2019, three
3 11 fileswere copied to the Red 32GB USB, "Email from Kaiser 3.26.2019 with cap
4 taqble.png", "Payward, Inc. capitalization table_2.10.2019.xlsx", and "Payward-
5 Capitalization Table (current) (2-10-2019).xlsx".
6 7. On November 14, 2019, while the USB drives were in the custody of
7 11 Law offices of Claire Cochran, the two directories and file described above were copied
8 11from the Black 128GB USB to the Red 32GB USB.
9 8. I extracted the above referenced files and folders for opposing counsel
10 except for the one document, which I was informed was considered Attorney-Client
11 Privilege.
12 I declare under penalty of perjury under the laws of the State of California that
13 the foregoing is true and correct.
14 Executed on March 29, 2021, at Los Angeles, California.
tV--
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17 KEVIN COHEN
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DECLARATION OF COMPUTER FORENSIC EXPERT KEVIN COHEN
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1 Claire E. Cochran (SBN 222529) Natalie A. Xifo (SBN 280930) ELECTRONICALLY 2 LAW OFFICES OF CLAIRE COCHRAN, P.C. 100 Pine Street, Suite 1250 F I L E D 3 Superior Court of California, San Francisco, CA 94111 County of San Francisco 4 Telephone: (415) 580-6019 05/04/2021 Facsimile: (415) 745-3301 Clerk of the Court BY: EDNALEEN ALEGRE 5 Deputy Clerk 6 Attorneys for Plaintiff NATHAN PETER RUNYON 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 [UNLIMITED JURISDICTION] 11 Case No. CGC-19-581099 NATHAN PETER RUNYON 12 DECLARATION OF CLAIRE E. Plaintiff, COCHRAN IN SUPPORT OF 13 PLAINTIFF’S OPPOSITION TO v. DEFENDANTS’ MOTION FOR 14 SANCTIONS 15 PAYWARD, INC., a California Corporation d/b/a KRAKEN; and KAISER NG an individual Date: May 17, 2021 16 and DOES 1-50, inclusive Time: 9:00 a.m. 17 Dept.: 301 Defendants. 18 19 20 21 22 23 24 25 26 27 28 Page | 1 1 DECLARATION OF CLAIRE E. COCHRAN ESQ. 2 I, CLAIRE E. COCHRAN, ESQ., declare as follows: 3 1. I am an attorney licensed to practice law in the State of California. I am the 4 Owner and Principal of the law firm Law Offices of Claire Cochran, P.C. (“LOCC”), attorneys 5 of record for Plaintiff NATHAN PETER RUNYON (“Plaintiff”) in the within civil proceeding. 6 If called upon as a witness, I could and would competently testify to the following: 7 2. This Declaration is in support of Plaintiff’s Opposition to Defendants’ Motion 8 for Sanctions. 9 3. Plaintiff provided documents to our office at the outset of our relationship in 10 early September 2019. When he provided these documents to our office, on two jump drives, he 11 identified some documents as relating to his whistleblower claims and some documents as (then 12 irrelevant) work task related documents. 13 4. Plaintiff had downloaded the documents to the jump drives (July 27 and 28, 14 2019) prior to termination (August 1, 2019) with a work provided USB drive, so some of the 15 documents related to tasks he had been working on at Payward. 16 5. Plaintiff’s initial demand letter was dispatched on September 13, 2019. 17 6. Defendant Payward declined to attend mediation with Plaintiff at that time. 18 7. Prior to the filing of the Civil complaint in this matter, Claire Cochran and 19 Natalie Xifo met and conferred with Payward in house Counsel Marybeth Buchanan and 20 Michael O’Connor and Christopher LaVigne about the contents of Plaintiff’s proposed civil 21 complaint. Plaintiff edited his civil complaint pursuant to these meet and confers with opposing 22 counsel and filed his complaint on or about November 26, 2019 and then filed a First Amended 23 Complaint on or about January 6, 2020. 24 8. Payward propounded requests for production, set one on Plaintiff on or about 25 February 24, 2020. 26 9. Defendant provided responses to this discovery, in the form of document 27 production, on or about March 5, 2020 and further production on April 13, 2020. Plaintiff 28 Page | 1 DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS 1 provided the documents he had identified to Counsel as related to his whistleblower claims, not 2 what he considered then to be irrelevant work documents. 3 10. On March 26, 2020, Payward served Request for Admissions, Form 4 Interrogatories [General] and [Employment]. On June 1, 2020, Payward served a Request for 5 Production of Documents, Set Two only seeking documents and communications associated 6 with Plaintiff renting out his San Francisco apartment on Airbnb. 7 11. On or about March 27, 2020, Payward filed an action against Plaintiff in District 8 Court, see Case No. 3:20-cv-2130, or Exhibit A, to Defendants’ motion for sanctions. 9 Payward’s Complaint alleges that Plaintiff stole/hacked Confidential Payward documents after 10 he was terminated from his employment with Payward. 11 12. On January 29, 2021, Payward re-noticed the deposition of Pete Runyon 1. There 12 had been no intervening requests for production since Payward’s last request in 2020. 13 13. Mr. LaVigne, Counsel for Payward, accused my law firm of using these stolen 14 documents unethically and indicated that he would be attempting to examine our law firm files 15 and forensics under the Crime Fraud Exception to the attorney/client privilege. Mr. LaVigne 16 made this statement to me in mid-February 2021. 17 14. In response to both Payward’s District Court Action, and Mr. LaVigne’s 18 statements regarding the Crime Fraud exception to the attorney/client privilege, my firm began 19 the process of locating an expert to make sure we handled Plaintiff’s documents correctly. 20 15. At this juncture, given the nature of the allegations in the District Court action, 21 we determined we needed to produce any and all documents in on Plaintiff’s USB flash drives. 22 16. At this juncture, the parties were engaged in arbitration with Employee 5 23 (mentioned in our client’s civil complaint). During the discovery (depositions) in this matter it 24 became clear that additional documents on Runyon’s jump drives were relevant to the instant 25 litigation. 26 27 1 Due to COVID-19 pandemic and the Shelter at Home Orders for the country, Plaintiff’s deposition originally set for March 12, 2020, was required to be rescheduled. 28 Page | 2 DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS 1 17. On March 1, 2021, my associate Natalie Xifo spoke with Tom Howe, at Howe 2 Law Firm, a law firm that specializes and is an expert in the field of the production and 3 extraction of ESI. Ms. Xifo was advised by Mr. Howe that we should not simply produce the 4 documents in the regular course of discovery, nor should we just return the USB flash drive to 5 Opposing Counsel. We were advised that we needed to retain an expert to forensically image 6 the USB flash drives Plaintiff created prior to production. However, Mr. Howe would not 7 review the USB flash drives absent a Court Order or a stipulation from both parties that the 8 Confidential data can be examined by an expert or third party. 9 PLAINTIFF’S EX PARTE APPLICATIONS FILED IN DEPARTMENT 206 & 302 10 18. Plaintiff noticed and filed two ex parte applications. One ex parte request was a 11 discovery related motion to be heard in Department 302 on March 11, 2021. The second ex 12 parte request was a trial continuance set to be heard in Department 206 on March 12, 2021. The 13 following details the issues surrounding the back-to-back ex parte requests due to CourtCall’s 14 confusion in patching the appearances to the incorrect courtroom on March 11, 2021. 15 a. On or about March 10, 2020, Plaintiff provided opposing counsel with 16 notice of his ex parte application requesting that the court grant an Order Shortening Time for 17 Plaintiff’s Notice of Motion and Motion to Appoint a Special Master to assist in the 18 management of the jump drives. We provided notice that Plaintiff’s motion would be heard in 19 Department 302 at 11:00 a.m. on March 11, 2021. We followed the ex parte policies as 20 outlined on the San Francisco Superior Court website which required the pleadings be emailed 21 to contestdept302tr@sftc.org on the morning of the ex parte. As required, we appeared via 22 CourtCall. We did not fail to appear at the ex parte hearing as Defendants have misstated in 23 their underlying motion. 24 b. On March 11, 2021, Ms. Maya Sorensen of LOCC appeared via 25 CourtCall however, she was patched through to Department 206 and not 302. This was 26 incorrect. CourtCall patched Ms. Sorensen through to the wrong department and had her appear 27 in the department that was set to hear Plaintiff’s ex parte motion to continue the trial the 28 Page | 3 DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS 1 following day March 12. The clerk in Department 206 was confused why Plaintiff’s request was 2 not hand delivered to the court room and further she had no notice of the ex parte request. My 3 staff immediately contacted the clerk in the department 302, where the ex parte should have 4 been heard. Sean, the clerk in Department 302, emailed LOCC to advise us to give CourtCall 5 his name for permission to appear in Department 302 and not 206. Sean explained that 302 and 6 206 conduct their ex parte hearings differently and any discovery related applications must be 7 heard in 302. We confirmed that we understood that difference yet somehow CourtCall placed 8 us in Department 206. Sean then called my associate, Natalie Xifo and left her a voicemail 9 advising us to simply move the ex parte to 302 that day. Unfortunately, at that point Department 10 206 dismissed the case because they realized Plaintiff had properly noticed the discovery 11 motion for 302 and it should never have been in 206. Opposing counsel hung up and we could 12 not get them to reappear in 302 as Sean suggested. 13 c. As a result of CourtCall incorrectly placing Ms. Sorenson in Department 14 206 for our discovery hearing, which was properly noticed for Department 302, Plaintiff was 15 required to re-notice the ex parte application for Monday, March 15, 2021. 16 d. On or about March 10, 2021, Plaintiff provided notice of his ex parte 17 request to Continue the Trial and all associated deadlines to attempt to avoid any prejudice to 18 Payward by any delays occasioned by the advice of the expert regarding Plaintiff’s document 19 production. This ex parte application was to be heard in Department 206 at 11:00 a.m. on 20 March 12, 2021. We followed the ex parte policies as outlined on the San Francisco Superior 21 Court website about how to request an ex parte request to continue trial. We provided notice to 22 Defendants on March 10, 2021, at 9:33 a.m. and served them with Plaintiff’s ex parte 23 application several hours later. 24 e. On March 12, 2021, when Plaintiff’s ex parte request to Continue the 25 Trial was being heard in Department 206, Ms. Pallen on her own accord, not because 26 Plaintiff noticed the hearing in Department 302, chose to appear in Department 302. She 27 appeared only to see if Plaintiff’s request to appoint a special master would be called given the 28 Page | 4 DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS 1 confusion over this on March 11, 2021 when the matter was sent to the wrong department. She 2 knew Ms. Sorenson was in Department 206 and that no one from LOCC was appearing in 3 Department 302 that day. Plaintiff did not file, schedule or notice an ex parte on March 12, 4 2021 in Department 302, as such LOCC did not appear. LOCC did not fail to make an 5 appearance as misstated in the Declaration of Mr. LaVigne. Ms. Sorensen of LOCC was in the 6 correct court room, Department 206, the department Plaintiff properly noticed for his ex parte 7 request to continue trial. We had no idea Ms. Pallen was going to appear in Department 302 and 8 engage in ex parte communications with the Court without us present. At 5:20 p.m. on March 9 12, 2021, Ms. Pallen emailed Ms. Sorenson advising her that she appeared that morning in 10 Department 302 and alleged Judge Schulman called Plaintiff’s ex parte request to appoint a 11 special master and when Plaintiff did not appear he told her to tell counsel for Plaintiff that we 12 had requested relief under the incorrect statute. Ms. Pallen alleged that that Judge Schulman 13 advised her that Defendants could consider and agree to some sort of third-party discovery 14 referee. A true and correct copy of Ms. Pallen’s March 12, 2021 is attached hereto as Exhibit 15 “A.” However, Ms. Pallen refused to stipulate to a joint discovery referee and instead continued 16 to demand the return of the USB drives absent a forensic examination. 17 19. On March 15, 2021, after this Court denied Plaintiff’s motion to appoint a joint 18 expert and/or special master we retained an expert in Los Angeles that was able to conduct a 19 forensic examination of the USB drive and we immediately produced the contents and a 20 Declaration from this expert on what he discovered on the USB flash drives, how they were 21 downloaded and saved. (Exhibit B, See Declaration of Kevin Cohen filed concurrently 22 herein). 23 20. On March 29, 2021, we produced ALL documents on the jump drives with the 24 related Declaration from the expert Kevin Cohen on Payward. 25 21. Yesterday, May 3, 2021, Defense Counsel reached out for dates for the continued 26 deposition of Plaintiff. Lead Counsel is currently on vacation, has provided this information to 27 Payward’s Counsel, and yet, the request for deposition is only on dates upon which Counsel is 28 Page | 5 DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS 1 out of town. 2 22. Additional facts that relate to this litigation: 3 a. My law firm employees four total lawyers, all of whom had children at home 4 during the last calendar year due to Covid. Given this situation, and its 5 hardships, all parties had backed off on litigation for a portion of 2020. 6 b. My associate and second chair, Natalie Xifo, was on maternity leave from 7 mid-September 2020 through mid-January 2021. 8 c. I was on medical leave from November 2020 through January 2021. 9 23. I am the attorney of record for THIRD PARTY WITNESS in a AAA Arbitration 10 proceeding filed by Payward dba Kraken against THIRD PARTY WITNESS for violating the 11 terms of her Severance Agreement, including, but not limited to, violating the terms of her 12 agreement not to encourage another in their pursuit of litigation against THIRD PARTY 13 WITNESS, and/or not to disparage Payward dba Kraken, and/or not to speak about any work 14 activities, work product, or other topic contained therein. THIRD PARTY WITNESS also has a 15 Confidentiality Agreement, referenced by the Severance Agreement, from her time as an 16 employee of Payward dba Kraken. 17 24. I am not representing THIRD PARTY WITNESS as Third-Party Counsel in this 18 matter, but as her attorney of record in the AAA Arbitration I am beholden to provide 19 information upon which her testimony can proceed in the instant case. 20 25. As noted in paragraph 2 of the Declaration of Mr. LaVigne, THIRD PARTY 21 WITNESS is currently being sued in AAA Arbitration for violating the terms of her Severance 22 Agreement and/or her Confidentiality Agreement, incorporated by reference. 23 26. In support of its claims that THIRD PARTY WITNESS violated the terms of her 24 Severance Agreement, Payward dba Kraken has identified conversations and interactions with 25 Plaintiff, Plaintiff in the instant matter, as evidence against THIRD PARTY WITNESS. 26 27. Payward dba Kraken has issued a subpoena for THIRD PARTY WITNESS’s 27 testimony in the instant matter. 28 Page | 6 DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS 1 28. The subpoenaed topics seek information that would be, without an agreement 2 from Payward dba Kraken, in violation of THIRD PARTY WITNESS’s Severance Agreement 3 and/or Confidentiality Agreement. 4 29. Out of an abundance of caution, both myself, and THIRD PARTY WITNESS’s 5 third party Counsel, Brendan Ford, have asked that Payward provide a statement of assurance 6 that none of her deposition testimony provided in the instant case be used against THIRD 7 PARTY WITNESS in the instant AAA Action, or any other action, as a violation of her 8 Severance Agreement, Confidentiality Agreement and/or Protective Order in the AAA 9 Arbitration. 10 30. Payward has entered into this Agreement as it relates to Plaintiff so he can 11 provide testimony in THIRD PARTY WITNESS’s arbitration pursuant to their subpoena. It 12 makes little sense for them not to have this same agreement in the instant matter. 13 31. In response to Payward’s requests for dates for THIRD PARTY WITNESS’s 14 deposition in this matter, every time I have provided dates of availability and a related request 15 that Payward stipulate that THIRD PARTY WITNESS’s testimony will not be used as evidence 16 against her with regard to claims that she has violated her Severance Agreement, et al. 17 32. To date Mr. Ford continues to propose dates for the deposition of his client and 18 has yet to receive any response from Ms. Pallen or Mr. LaVigne. 19 33. This Declaration is not intended to be, nor shall it be construed as being, a waiver 20 of attorney-client privilege or attorney-client work product doctrine. I have no client authority 21 to waive the attorney work-product doctrine, and I do not intend to do so by anything set forth 22 herein. 23 24 I declare under penalty of perjury under the laws of the State of California that the 25 foregoing is true and correct. 26 Executed on May 03, 2021 at San Francisco, California. 27 CLAIRE E. COCHRAN 28 Page | 7 DECLARATION OF CLAIRE E. COCHRAN, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS Exhibit A From: Pallen, Kimberly Date: Fri, Mar 12, 2021 at 5:20 PM Subject: Runyon v. Payward - Ex Parte Application for OST for Plaintiff's Notice of Motion to Appoint a Special Master To: Maya Sørensen Cc: Natalie@clairecochranlegal.com , Claire Cochran , LaVigne, Christopher , Sanichar, Lalindra , Moran, Pamela Dear Maya, This morning, I appeared in Department 302 on your Ex Parte Application for an Order Shortening Time for Plaintiff’s Notice of Motion to Appoint a Special Master because we were concerned that the application would be called given the confusion with the clerk in Department 206 on Thursday. The case was, in fact, called, and Judge Schulman asked me to pass along information to you. He said that, as we pointed out, you have moved under the wrong statute. He also said that, if Defendants agree to some sort of third party discovery referee, he asked us to collectively consider coming to an agreement pursuant to CCP s. 638. Our position is, and remains, that a discovery referee is not proper under these facts and unavailable on an ex parte basis. Thanks, Kimberly Pallen Special Counsel Litigation t +1 415 872 3221 f +1 415 549 2451 withersworldwide.com | my profile Secretary: Pamela Moran t +1 415 872 3233 Withers Bergman LLP 505 Sansome Street, 2nd Floor, San Francisco, CA 94111 Withers Bergman LLP - 505 Sansome Street, 2nd Floor, San Francisco, CA 94111 T: +1 415 872 3200 F: +1 415 549 2480 Withersworldwide San Francisco, Los Angeles, Rancho Santa Fe, San Diego, New York, Greenwich, New Haven, London, Cambridge, Geneva, Milan, Padua, Hong Kong, Singapore, Tokyo, British Virgin Islands, Sydney This email (and any attachments) is confidential and may also be legally privileged. If you are not the intended recipient please immediately notify the sender then delete it from your system. You should not copy it or use it for any purpose nor disclose its contents to any other person. Please note that where the content of this email is personal or otherwise unconnected with the business of the firm or its clients, the firm accepts no responsibility or liability for its content. Exhibit B 1 11 and "Goodwin Email re 11.27.2017 Option Grant". In addition to the two directories, on 2 11 July 28, 2019 a file was also copied to the Black 128GB USB. On July 29, 2019, three 3 11 fileswere copied to the Red 32GB USB, "Email from Kaiser 3.26.2019 with cap 4 taqble.png", "Payward, Inc. capitalization table_2.10.2019.xlsx", and "Payward- 5 Capitalization Table (current) (2-10-2019).xlsx". 6 7. On November 14, 2019, while the USB drives were in the custody of 7 11 Law offices of Claire Cochran, the two directories and file described above were copied 8 11from the Black 128GB USB to the Red 32GB USB. 9 8. I extracted the above referenced files and folders for opposing counsel 10 except for the one document, which I was informed was considered Attorney-Client 11 Privilege. 12 I declare under penalty of perjury under the laws of the State of California that 13 the foregoing is true and correct. 14 Executed on March 29, 2021, at Los Angeles, California. tV-- 15 16 17 KEVIN COHEN 18 19 20 21 22 23 24 25 26 27 28 Page 13 DECLARATION OF COMPUTER FORENSIC EXPERT KEVIN COHEN