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BRUCE A. SCHEIDT, State Bar No. 155088 ELECTRONICALLY
bscheidt@kmtg.com FILED
CHRISTOPHER ONSTOTT, State Bar No. 225968 ‘Superior Court of California,
constott@kmig, com County of San Francisco
GABRIEL P. HERRERA, State Bar No. 287093 05/19/2017
gherrera@kntg.com Clerk of the Court
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD BY:GARY FELICIANO
A Professional Corporation Deputy Clerk
400 Capitol Mall, 27" Floor
Sacramento, California 95814
Telephone: (916) 321-4500
Facsimile: (916) 321-4555
Attorneys for Plaintiff/Cross-Defendant
GOLDEN PACIFIC BANK, N.A.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
GOT.DEN PACIFIC BANK, N.A., Case No. CGC-16-549804
Plaintiff, DECLARATION OF BRUCE A. SCHEIDT
IN SUPPORT OF GOLDEN PACIFIC
v. BANK'S MOTION TO CONTINUE
TRIAL
BILLFLOAT, INC., RYAN GILBERT, SEAN
O'MALLEY, and DOES 1-50, inclusive,
Defendants.
July.14,.2017
BILLFLOAT, INC. Date: June-+6,2017
Time: 10:00 a.m.
Cross-Complainant, Dept.: 606
v.
GOLDEN PACIFIC BANK, N.A., and ROES | Case Transferred
1-50, from Sacramento County: January 11, 2016
Cross-Defendants, Trial Date: August 14, 2017
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1366705,1 14023-004
DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF
GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIALCm IN AW RF Ww
10
I, Bruce A. Scheidt, declare as follows:
1. Iam an attorney duly admitted to practice before this Court. I am a shareholder
with Kronick, Moskovitz, Tiedemann & Girard, attorneys of record for Plaintiff/Cross-Defendant
Golden Pacific Bank, N.A. ("GPB"). I have personal knowledge of the facts set forth herein, and
if called as a witness, I could and would competently testify thereto.
2. On January 10, 2017, I caused to be served thirteen (13) deposition notices on
Defendant/Cross-Complainant BillFloat, Inc. (“BillFloat”), requiring BillFloat’s “person most
qualified,” or PMQ, to appear at depositions on specific subjects relating to BillFloat’s factual
allegations in its 90-page, 405-paragraph first amended cross complaint.' BillFloat objected to
each and every topic noticed in the 13 PMQ depositions, forcing GPB to file a motion to compel
and seek the assistance of the discovery referee once Judge Warren was appointed and available
for hearing. On April 18, 2017, which was the first date on which the discovery referee was
available to hear the discovery dispute, Judge Warren required the parties to further meet-and-
confer on the issues but gave the partics explicit instructions regarding the propriety of several
noticed topics. The discovery referee specifically advised the parties regarding the meaning of
Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255 and whether San Francisco Superior Court
Judge Harold Kahn's September 27, 2016 order, attached hereto as EXHIBIT A, applied equally
to BillFloat’s obligation to present an entity representative for deposition as it applied to GPB’s
obligation. With respect to Rifkind, GPB argued that while Rifkind restricted questions asking for
legal contentions, it did not prohibit questions related to factual contentions. BillFloat disagreed,
arguing that Rifkind applies to factual and legal contentions with respect to allegations in the
pleadings and prohibits asking such questions at depositions. The discovery referee rejected
BillFloat's interpretation, stating that factual contentions, even if alleged in pleadings, are subject
to deposition questioning. Accordingly, the discovery referee ruled that GPB may ask BillFloat
contention questions about specific factual allegations in BillFloat's pleadings. With respect to
' BillFloat subsequently filed a 105 page, 469 paragraph second amended cross-complaint after this Court sustained a
demurrer with leave to amend as to BillFloat’s tort claims. BillFloat’s amended tort claims were not materially
revised and will be the subject of GPB's second demurrer, which will be heard by this Court on May 26, 2017.
1366705.1 14023-004 1
DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF
GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIALJudge Kahn's September 27, 2016 discovery order, Judge Warren agreed with GPB’s position that
Judge Kahn’s discovery order applies equally to BillFloat as it applies to GPB. Thus, GPB may
seek factual information regarding BillFloat's understanding of certain contractual provisions
identified in the deposition notices, the bases of BillFloat's understanding of those provisions, and
how, if at all, BillFloat implemented those provisions. The parties met and conferred, resolving
many but not all of their disputes with the discovery referee's guidance.
3. Despite the explicit instructions of the referee on what objections were improper to
the notice topics, BillFloat still persisted in objecting to the exact same noticed topics on the same
grounds. Accordingly, on May 3, 2017, Golden Pacific again had to seek the help of the discovery
referee to instruct BillFloat, who stated he did not recall whether Judge Warren advised the parties
that Judge Kahn's September 27, 2016 order applied equally to GPB’s right to depose BillFloat’s
entity representative. The discovery referee reiterated that Judge Kahn's September 27, 2016 order
applied as GPB contended.
4, Despite months of requests, BillFloat failed to provide Golden Pacific with
available dates for the PMQ depositions to go forward. Accordingly, on May 11, 2017, GPB
served updated Person Most Qualified Deposition Notices. Only after these notices were served
did BillFloat's counsel, William Webb, email me on May 11, 2017, stating that he was “out of
town next week" and that "he should be able to touch base with you soon with some proposals.”
Mr. Webb stated that Defendant Sean O'Malley would be the PMQ "for many of the categories."
Mr. Webb stated that [Mr, O'Malley] lives in Taiwan. However, he will be back in June; we are
checking to see whether he will be available for the MSC on June 16. If so, and I will let you
know, you may want to plan on taking those categories around then, as well as his individual
deposition, while he is in town." On May 12, 2017, Mr. Webb responded that he needed more
time to determine BillFloat representatives who could appear for the PMQ depositions that were
noticed originally on January 10, 2017 — more than four months ago, We continued to email each
other, back and forth, as I forced the issue of proceeding with these necessary depositions. Mr.
Webb refused to commit to any specific date of a deposition; moreover, as of today’s date, he had
identified only one person, Sean O’Malley, who woild be available for one of GPB’s 13 separate
1566705.1 14023-004 2
DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF
GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIALPMQ depositions that were noticed last January: Our email correspondence is attached hereto as
Exhibit B. BillFloat’s attempt to delay GPB's access to materially relevant information for more
than four months, with only approximately 90 days remaining until trial, is unacceptable.
5. [also find it curious, however, that BillFloat and Defendants Ryan Gilbert, and
Sean O'Malley (altogether “Defendants”) have admitted that their claims are not ready for trial. In
a May 3, 2017 email to Judge Warren, Defendants' counsel stated: "We have not yet conducted
discovery as to this issue. We will be submitting written discovery, and perhaps entity deposition
notices regarding the issue. In other words, at present, we are not prepared for trial on these issues
and admittedly do not have much evidence or information on them." A true and correct copy of
this email is attached as EXHIBIT C.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed May 15, 2017, at Sacramento, California.
ruce A. Scheidt
1566705S.1 14023-004 3
DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF
GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIALEXHIBIT AWEBB LEGAL GROUP
155 Montgomery Street, Suite 1200
San Francisco, CA’ 94104
(415) 277-7200
Cm UN NH Bw
WILLIAM T, WEBB #193832
JENNIFER D, YU #291603
155 Montgomery Street, Suite 1200
San Francisco, CA 94104"
(415) 277-7200
(415) 277-7210 (fax)
Attorneys for BILLFLOAT, INC.,
RYAN GILBERT AND SEAN O’MALLEY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)
GOLDEN PACIFIC BANK, N.A., ) Case No.: CGC-16-549804
Plaintiff, [PROPOSED] ORDER GRANTING IN
PART AND DENYING IN PART
vy. fee PLAINTIFF/CROSS-DEFENDANT’S
MOTION TO QUASH PMQ DEPOSITION
BILLFLOAT, INC,, RYAN GILBERT, SEAN ) NOTICES; AND FOR PROTECTIVE
O'MALLEY, DOES 1-50, ORDER
Defendants. Date: July 26,2016
Time: 9:00 a.m.
Dept: 302
BILLFLOAT, INC.
Cross-Complainant,
1-50,
)
)
v.
GOLDEN PACIFIC BANK, N.A., and ROES ;
Cross-Defendants. !
raphe ORDER GRANTING IN PART AND DENYING IN PART PLAINTUFF/CROSS-DEFENDANT’S MOTION TO QUASH
PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP
(415) 277-7200
155 Montgomery Street, Suite 1200
San Francisco. CA 94104
CoO YN DH RF YW Dw =
= 5
Having read and considered Plaintiff/Cross-Defendant GOLDEN PACIFIC BANK,
N.A.’s (“GPB”) Motion to Quash PMQ Deposition Notices; and for Protective Order, and having
held a hearing at which Christopher Onstott appeared for the Plaintiff GPB; William T. Webb
appeared for Defendant and Cross-complainant BillFloat, Inc., and Defendants Ryan Gilbert and
Sean O'Malley; and Robert Lockwood appeared for Defendants Ryan Gilbert and Sean
O'Malley; and good cause appearing therefor,
IT IS ORDERED THAT:
The Motion is GRANTED in part and DENIED in part,
1. Subject to further order of the Court based on demonstrated need after the six
depositions are taken:
a. GPB shal! produce for deposition to testify on behalf of GPB one person for
each of the four contracts, At GPB’s option, that can be one person or two,
three or four different persons, The person(s) so designated must be familiar
with the specific provisions of the contracts that are mentioned in the
deposition notices, GPB’s understanding of those provisions, the bases of
GPB’s understanding of those provisions, and how, if at all, GPB has
implemented those provisions,
b. GPR shall produce an individual for deposition to testify with respect to the
Notice of Default, including (1) being able to testify as to the bank’s position
as to what the Notice of Default means; (2) the bases for that position, (3) how
GPB implemented the Notice of Default; and (4) how GPB arrived at the
decision fo send the Notice of Default and who was involved in that process.
c, GPB shall produce an individual for deposition to testify on behalf of GPB
with respect to the notice that BillFloat was going to enter into other
agreements with other lenders .
2. If atier these six depositions are taken, Biilfloat believes it still needs further PMQ
depositions with respect to the categories previously noticed, then the parties must
meet and confer about BillFloat’s request for further depositions, and BillFloat may
apply to the Court for further relief.
3. The aforementioned depositions must take place by September 30, 2016.
4, This Order does not foreclose any Defendant from noticing further PMQ depositions
with respect to any other categories not previously noticed, nor does it preclude GPB
1
NTING IN PART AND DENYING IN PART PLAINTIFTZC
PRIQ DEPOSITION NOTICES; AND FOR PROTECTIY!
ENDANT'S MOTION TO QUASIC
{PROPORED] ORD!
1491738,1_ 14023-004from asserting privileges to any questions asked at the depositions, or to any
documents produced at the depositions,
ITIS SO ORDERED.
Dated: SEP 21 ania , 2016
HAROLD KAHN
Honorable Harold E. Kahn
Judge of Superior Count,
County of San Prancisco
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7 Date: September 19, 2016
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19 Attorneys for RYAN GILBERT AND
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25 Christopher Onstott
Attorneys for GOLDEN PACIFIC BANK,
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TPROPQSED, ORDER GRANTING IN PART AND DENVING IN PART PLAINTUTICROS
PMQ DEPOSITION NOTICES; AND KOR PROTECTIVE,
FENDANT'S MOTION TO QUASTT
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1491738). 14023-004EXHIBIT BScheidt, Bruce A.
From: Scheidt, Bruce A.
Sent: Monday, May 15, 2017 7:24 AM
To: William Webb
Cc: jyu@webblegalgroup.com; Isola, Peter L.; Onstott, Christopher; Xiong, Bao
Subject: Re: GPB/BillFloat
We can't wait any longer to schedule my depositions, I noticed these depositions last January. Clearly your
strategy is to delay. I've been asking you for dates for two weeks after you asked the discovery to "clarify" a
tuling you purportedly could not remember. I'm prepared to discuss all depositions, including Ms. Luzzi, Her
deposition however will have to begin after I get to start my depositions of BillFloat's witnesses, as I
immediately accommodated your taking three days of depositions of the bank's witnesses, You have not
accommodated my PMQ depositions at all, except asking me to wait another six weeks.
The discovery referee wants us to talk to each other. That's what I'm trying to do today.
As for my being out of the country while on vacation the week of June 5-9, that should be self explanatory. I
can't be at a deposition that week.
Bruce
Sent from my iPhone
On May 14, 2017, at 11:09 PM, William Webb wrote:
Mr. Scheidt:
You have not addressed my questions.
1. Are you going to have your client’s (and Ms. Luzzi’s) availability on Monday morning? If
not, it does not appear that we are going to have the ability to iron out a schedule then. Just so
you know, I have my clients’ availability (subject to your answering number 2) and am able to sit
down with you and schedule depositions when you have their availability. Let’s do that this
week if you insist (Wednesday is OK), or first thing next week, if you don’t mind, so J can enjoy
a little bit of time with my family while I’m on vacation.
2. I will ask a third time: how are we going to be in two places at one time for the hearing and
MSC on June 16? Why won’t you answer this basic question? I need to know the answer to this
BEFORE we schedule any depositions, because it bears on Mr. O’Malley’s travel plans.
3, Out of curiosity, why did you tell me about your vacation?
Please let me know the answer to these questions, and then I will let you know whether it makes
sense to discuss on Monday or Wednesday of this week, or whether it will have to be set over
until after we have answers to these questions.
Thank you!
On May 14, 2017, at 8:25 AM, Scheidt, Bruce A. wrote:
1Mr. Webb,
| just reviewed your email from Friday afternoon. Your patronizing, non-productive
comments continue to amaze me, as they do not advance your client's position or
generate the “collaborative, cooperative approach” you claim you want. Meeting and
conferring with me tomorrow on a deposition schedule that is reasonable and takes into
account all parties’ needs and availability will advance the goal of a collaborative,
cooperative approach we both say we want.
With respect to my client’s noticing a PMQ deposition on Joint IP SOWs, the fact your
client contends “the parties worked through and settled on these issues a long time
ago” is disputed, and you know that. My client’s allegations of fraudulent and/or
undisclosed over-charges at the time the Bank paid the Joint IP SOWs does not mean
the parties “settled on these issues.” Since you raised the question, that’s the
answer. Moreover, your client does not need to like the subject matter of the PMQ
deposition. The fact that the allegation is directly at issue in the pleadings puts it clearly
within the scope of discovery.
Based on your email, it appears we have agreement on a deposition schedule where my
side will get three days of depositions, your side will then get three days of depositions,
with that alternating regimen continuing throughout the remainder of the discovery
period, That is a position | proposed a month ago.
Please be advised that | am on a long-planned vacation and out of the country the week
of June 5-9,
Bruce A. Scheidt
From: William Webb [mailto:;wwebb@webblegalgroup.com]
Sent: Friday, May 12, 2017 4:03 PM
To: Scheidt, Bruce A.
Cc: jyu@webblegalgroup.com; Isola, Peter L.; Onstott, Christopher; Xiong, Bao
Subject: Re: GPB/BillFloat
Hello, Mr. Scheidt:
This will all go much more smoothly if we can keep the invective to a
minimum. We are obviously going to be trying this case together, and experience
has shown that we will work much more effectively when we can cooperate, and
part of that is adopting a collaborative tone. Maybe things work differently up
there in Sacramento, but down here we take a much more collaborative,
cooperative approach to these things.
You’re going to get to take your depositions. We are going to get to take our
depositions.
You should keep in mind that you have asked to take BillFloat’s deposition on a
great many categories. We have only recently been provided input from Judge
Warren as to how he might rule on certain issues if they were properly before
him. That having happened, and you and I having spoken to clarify and
streamline your categories, I have then been working with my client to determine
2who is best to produce for each category. I am not going to count how many
categories remain, but I note that your recent notice included additional categories
that were not in the previous notices, so we are going to have to inquire into these
as well, and to read each category to see how, if at all, you may have changed
them from what you had originally noticed. We are close to being in a position to
discuss this in detail and ascertain availability, etc. We may not be in a final
position to do so on Monday, but I will try my best to be as prepared as I can
be. Keep in mind that you are asking me to do so essentially first thing on a
Monday after I have traveled, on my first day of vacation.
Keep in mind also that you have indicated a desire to take two depositions first —
the Joint IP SOW deposition, and the Regulation B deposition.
Much of the delay in getting back to you is the joint IP SOW issue. As I tried to
explain to Mr, Onstott today, who was calling me regarding special
interrogatories on the same issue, you are apparently intent on asking a series of
questions regarding each and every line item on each and every Joint IP SOW,
even though the parties worked through and settled on these issues a Jong time
ago. I suppose that is your right, but in order to be able to prepare (or “qualify”) a
deponent, it is going to take a great deal of time to do so. We are working
through this and will be able to get through it relatively quickly. But it does take
some time.
And, as I mentioned to you yesterday, the deponent we are in all likelihood going
to select for the Reg B categories (or most of them) lives in Taiwan. He will be
back for the mandatory settlement conference, which is set for June
16. (Curiously, after this was set, you set a hearing on your motion to continue
trial for that same date, and have not responded to my question as to how we are
both going to be in two places at the same time; so, I ask again, what
arrangements have you made with department 610 and 624 to have both matters
at the same time?)
So the deponent will be available around June 16, and we can discuss specifics
when we talk. Is it your position that you are entitled to a different person? If
that’s your position, I am not aware of any authority that you are entitled to pick
the person who testifies on behalf of a corporate deponent; the law actually
provides that the corporation selects that person. Let me know if you want me to
provide citations (most “PMQ” law comes from cases decided under the FRCP, as
you have already pointed out to Judge Kahn).
As far as the timing of our meet and confer efforts go, I am happy to meet with
you on Monday at 10:00 a.m. as you suggest, as long as you are willing to also
discuss availability of your clients (i.e. the five non-party witnesses we
subpoenaed and Heather Luzzi). We had previously agreed that we would do the
depositions in a manner where you take depositioris for three days, and then I do,
and we go back and forth in that manner, We agreed that you go first, because we
have already taken three days of depositions, and that sounds fair to me.
Keep in mind, though, that several of your notices contain categories that will
require different deponents, and so when we discuss the calendaring, it may be
necessary and expedient to discuSs depositions that will take place on different
3days due to witness availability. In other words, if Mr. O’Malley is in town, it
may make a lot more sense to work through the categories for which he will be
provided on a certain day rather than adhere to taking all categories of a certain
notice on the same day. Make sense?
We can discuss on Monday as you suggest. However, my suggestion wouid be to
put that off for a couple of days so that I can create a spreadsheet based on the
categories in each notice. I can then fill in a chart with who our deponent is going
to be (something to which you would not be otherwise entitled to beforehand) and
we can discuss what categories you want to take then. In other words, it will be a
more efficient discussion about mid-week next week, I am already meeting and
conferring with Mr, Onstott that morning, and am happy to talk with you then as
well. I think our meeting will be far more productive if it takes place then.
Keep in mind that I am on vacation next week, and despite having advised you of
my unavailability, ¥ am still happy to take the time to accomplish this and to meet
*. and confer with you.
Regardless as to when we meet and confer, please have your clients’ (and Ms.
Luzzi’s) availability as well. Otherwise, I will only agree to schedule the first
three days’ worth because otherwise I am afraid our calendars will be likely to fill
with only my client’s depositions. It is only fair that if we are going to schedule
three on-three off as it were, that we take turns scheduling them as well. In other
words, let’s schedule three days for you, three days for me, three days for you...
I’m confident we can work this out, and look forward to doing so.
Please do get back to me on how we are going to be two places at the same time
on the 16th; if you are going to be asking that the MSC be moved, that will affect
Mr. O’Malley’s travel plans from Taiwan and therefore bear materially on our
ability to schedule. Please do so before we meet and confer on the dates for the
depositions.
Please also get back to counsel and the judicial referee regarding his request for a
conference call.
Have a great weekend!
Best,
BillOnstott, Christopher
From: Scheidt, Bruce A.
Sent: Thursday, May 11, 2017 4:44 PM
To: William Webb
Ce: jyu@webblegalgroup.com; Isola, Peter L; Onstott, Christopher; Xiong, Bao
Subject: RE: GPB/BillFloat
Bill,
My client will not wait until the end of June to take depositions that were noticed in
early January. That is not reasonable and should be subject to monetary and issues
sanctions if | move to compel. | don’t think you want to defend your actions in delaying
BillFloat’s representatives for PMQ depositions unti! late June when those depositions
were noticed in January. Your client has had four months to selecta PMQ. Clearly
this is part of a strategy to push for a trial date in mid-August while forcing us to delay
critical discovery and be unprepared. | find it curious that | proposed these dates to
you last week in an email, you did not object then, but you waited a full week to tell me
that you are not available next week.
i am available to meet and confer immediately to schedule the first several set of PMQ
depositions that already have been delayed for four months because of your
tactics. Your email earlier today said you are available any time after 10:00 a.m. on
Monday. What time are you available after 10:00 a.m.? | am prepared to discuss a
deposition schedule that works for both sides fairly and equally. | am not going to wait
beyond Monday to meet and confer. Judge Warren will be called in to intervene if you
delay the meet-and-confer, since you have already announced your availability on
Monday.
The meet and confer should include your identification of PMQ depositions in which
Sean O'Malley is not the entity witness, so we can schedule them. Moreover, your
client has options in selecting an entity representative. “Most qualified” means only
that the entity representative must learn what information is reasonably available, even
if he or she does not have prior knowledge of that information. “Under the current law,
‘[i]f the subject matter of the questioning is clearly stated, the burden is on the entity,
not the examiner, to produce the right witnesses. And, if the particular officer or
employee designated lacks personal knowledge of all the information sought, he or she
is supposed to find out from those who do!” (Maldonado v. Superior Court (2002) 94
Cal.App.4th 1390, 1395-96.) BillFloat is required to produce someone from the
company with knowledge of the subjects in the deposition subpoena. If that person
claims he does not have knowledge of the topics in the subpoena, BillFloat must find
out from someone who does have that knowledge.Bruce A. Scheidt
Attorney at Law
MOSKOVITZ TIEDEMANN & GIRARD.
400 Capitol Mall, 27" Floor
Sacramento, CA 95814
916.321.4500
F | 916.321.4555
bscheidt@kmtg.com
ww.kmitg.com
CONFIDENTIALITY: This communication may contain confidential information. If you are not the intended recipient, of believe that you have received this
coimunicatin in error, please do net print, copy. retransmit, disseminate, or otheraise use the information, Also, please indicate to the sender that you have
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IRS CIRCULAR 230 DISCLOSURE: Pursuant to Treasury Regulations, any tax advice cantained in this communication (including any attachments) is not intended
of writlen to be used, and cannot be used of relied upon by you or any olhier persan, for the purpose of {i) aveiding penalties under the Internal Revenue Code, or
{ii) promoting, markeling or recommending to another party any tax advice addressed herein, Thank you,
From: William Webb [mailto:;wwebb@webblegalgroup.com]
Sent: Thursday, May 11, 2017 1:03 PM
To: Scheidt, Bruce A.
Cc: jyu@webblegalgroup.com; Isola, Peter L. ; Onstott, Christopher ;
Xiong, Bao
Subject: Re: GPB/BillFloat
Hi, Bruce:
For your planning purposes, know that the depositions won’t go forward then because, as I’ve communicated, I
am out of town next week.
We have made a lot of progress on figuring who will be available when for what categories, and I should be
able to touch base with you soon with some proposals.
As a head’s up, Sean O’ Malley is going to be the PMQ for many of the categories; he lives in
Taiwan. However, he will be back in June; we are checking to see whether he will be available for the MSC on
June 16. If so, and I will let you know, you may want to plan on taking those categories around then, as well as
his individual deposition, while he is in town.
Again, back to you soon. It has been a lot of work to get the categories settled because there are so many. Once
we get it settled who will be testifying as to what, it should be easy to get things scheduled.
On your end, please start gathering availability for those whose deposition we have noticed so we can schedule
them as well. Once we both have each others’ availability, let’s set up a phone call (can be next week or the
week after) to hammer out the calendar on the phone; it will be a lot easier to juggle then.
Thanks,
BillOn May 11, 2017, at 11:22 AM, Scheidt, Bruce A. wrote:
Having heard no objection to these dates after multiple meet-and-confer efforts
on dates, and having a trial date staring at us — which your clients will not move -
here are the PMQ deposition notices on the dates | previously proposed. We
cannot delay any further.
Bruce A. Scheidt
Attorney at Law
400 Capitol Mall, 27” Floor
Sacramento, CA 95814
916.321.4500
916.321.4555
bscheidt@kmta.corn
wuw.kmtg.com
CONFIDENTIALITY: This communication may contain confidential information. If you are not the intended recipient, or believe that you have
received this communication in error, please do rot print, copy, retransmit, disseminale, or otherwise use the information. Also, please
indicate fo the sender that you have received this email in error, and delete the copy you zeceived.
IRS CIRCULAR 230 DISCLOSURE: Pursuant to Treasury Regulations, any tax advice contained in this communication {including any
atlachmients) is nol intended or written to be used, and cannot be used ar relied upon by you or any other person, for the purpose of (i)
avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any tax advice
addressed herein, Thank you.
<2017-05-11 GPB_s Amended Notice of Deposition Number 4.PDF><2017-05-1 1 GPB_s
Amended Notice of Deposition Number 6.PDF>
Best,
Bill
William T. Webb
a
Wee LEGAL GROUP
155 Montgomery Street, Suite 1200
San Francisco, CA 94104
(415) 277-7200
(415) 277-7210 (fax)
wwebb@webblegalgroup.com
www.webblegalgroup.com
Please consider the environment before printing this e-mail.NOTICE: This e-mail and any attachments to it may be privileged, confidential or
contain trade secret information. If this e-mail was sent to you in error, please notify
me immediately by either reply e-mail or by phone at 415-277-7200, and please do not
_ use, disseminate, retain, print or copy the e-mail or its attachment. You will be reimbursed
for any reasonable expenses associated with destroying this e-mail and its attachments.
IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by
the IRS, we inform you that any tax advice contained in this communication (including any
attachments) was not intended or written to be used, and cannot be used, for the purpose
of (i) avoiding tax-related penalties under the Internal Revenue Code, or applicable state
or local tax law provisions, or (ii) promoting, marketing or recommending to another party
any matters addressed herein.EXHIBIT CHamman, Enedelia
From: William Webb
Sent: Wednesday, May 3, 2017 11:32 AM
To: Tina Oja
Ce: Xiong, Bao; Scheidt, Bruce A,; Onstott, Christopher; Herrera, Gabriel;
jyu@webblegalgroup.com; Hamman, Enedelia
Subject: Re: GPB/BillFloat - PMQ depositions
Hello, Ms. Oja:
In addition to the letter from Mr. Schist, there is another issue to discuss, which is as follows. We would
appreciate it if you could forward this email to Judge Warren prior to our call, Thank you!
There are a small number of contentions that we alleged under information and belief. They want us to produce
a PMQ to testify. We have not yet conducted discovery as to this issue. We will be submitting written
discovery, and perhaps entity deposition notices regarding the issue. In other words, at present, we are not
prepared for trial on these issues and admittedly do not have much evidence or information on them.
Specifically, in our conversation, we discussed as follows. BillFloat has alleged that GPB entered into an
agreement with a company called Digital Insights in violation of the “most favored nations clause.” GPB wants
to know the basis of that claim. That’s fine. But Mr. Scheidt said that the contract with Digital Insights was
entered into before the contracts with BillFloat. I suggested that he get me that contract, and assuming it’s
dated before the Parties’ agreements, then this may bear on whether we pursue this issue at trial. He declined to
do so, and said that we have a duty to produce someone now to testify on this.
We have not submitted discovery on this issue, and do not have any documents regarding this relationship. I
suggested that we hold on to these and wait to see what information GPB produces in discovery on these issues
before Mr. Scheidt takes the depositions on these categories. (Notice 10, categories 12 and 13.)
Mr. Scheidt insists on going forward.
This is fine with me, even though it’s a waste of time, but object to producing someone now and after we have
conducted discovery. Mr. Scheidt says he is entitled to both.
To be clear, our deponent will say that he or she knows virtually nothing about this claim, because GPB is in
possession of all relevant material. If the deadline for dispositive motions had not already expired, I can see
why Mr. Scheidt might want to develop this information as the basis for a dispositive motion, but since they are
not going to be able to file a dispositive motion, it’s a waste of time.
BillFloat just brings this to your attention, because if the deposition goes forward right now, we will be
objecting to further depositions, and want to be fair to you and to give you the opportunity to weigh in on that
issue now, rather than after the deposition is taken.
Best,
BillOn May 2, 2017, at 3:44 PM, Tina Oja wrote:
Dear Counsel,
Judge Warren wanted me to let you all know that he will only have 15 minutes for tomorrow's call since
he will be taking your call in the middle of his mediation. There will be a hard stop after 15 minutes but
he said the letter was very helpful and he looks forward to speaking with you tomorrow.
Thank you,
Tina
Tina Oja
Case Manager
Two Embarcadero Center, Suite 1500
San Francisco, CA 94111
P: 415-774-2627
F: 41-982-5287
Sign up to join the waiting lists for JAMS Neutrals who may become available on short notice.
U.S, | International | LinkedIn | Twitter
From: Tina Oja
Sent: Tuesday, May 02, 2017 2:22 PM
To: 'Xiong, Bao'
Ce: Scheidt, Bruce A. ; Onstott, Christopher ; Herrera,
Gabriel ; wwebb@webblegalgroup.com; jyu@webblegalgroup.com; Hamman,
Enedelia
Subject: RE: GPB/BillFloat - PMQ depositions
Received. | have forwarded this to Judge Warren. .
Thank you,
Tina
Tina Oja
Case Manager
Two Embarcadero Center, Suite 1500
San Francisco, CA 94111
P: 415-774-2627
F: 41-982-5287
Sign up to join the waiting lists for JAMS Neutrals who may become available on short notice.
U.S. | International | LinkedIn | TwitterBest,
Bill
From: Xiong, Bao [mailto:bxiong@kmtg.com
Sent: Tuesday, May 02, 2017 2:14 PM
To: Tina Oja
Cc: Scheidt, Bruce A. ; Onstott, Christopher ; Herrera,
Gabriel ; wwebb@webblegalgroup.com; jyu@webblegalgroup.com; Hamman,
Enedelia
Subject: GPB/BillFloat - PMQ depositions
Attached please find a correspondence from Bruce Scheidt. Thank you.
Bao Xiong
Assistant to Bruce A. Scheidt & Gabriel P. Herrera
400 Capitol Mall, 27" Floor
Sacramento, CA 95814
916.321.4500
916.321.4555
bxiona@kmta.com
wy. kmitg.com
CONFIDENTIALITY: This communication may contain confidentiat information. if you are not the intended recipient, or believe that you have
received this communication in ercor, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please
indicate to the sender that you have received this email in error, and delete the copy you received,
IRS CIRCULAR 230 DISCLOSURE: Pursuant to Treasury Regulations, any tax advice contained in this communication (including any
attachments) is not intended or written to be used, and cannot be used or relied upon by you or any other person, for the purpose of (i)
avoiding penalties under the Internal Revenue Code, or (i) promoting, marketing or recommending to anather party any tax advice
addressed herein. Thank you.
William T. Webb
Wess LEGAL GROUP
155 Montgomery Street, Suite 1200
San Francisco, CA 94104
(415) 277-7200
(415) 277-7210 (fax)
wwebb@webblegalgroup.com
www.webblegalgroup.comPlease consider the environment before printing this e-mail.
NOTICE: This e-mail and any attachments to it may be privileged, confidential or
contain trade secret information. If this e-mail was sent to you in error, please notify
me immediately by either reply e-mail or by phone at 415-277-7200, and please do not
use, disseminate, retain, print or copy the e-mail or its attachment. You will be reimbursed
for any reasonable expenses associated with destroying this e-mail and its attachments.
IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by
the IRS, we inform you that any tax advice contained in this communication (including any
attachments) was not intended or written to be used, and cannot be used, for the purpose
of (i) avoiding tax-related penalties under the Internal Revenue Code, or applicable state
or local tax law provisions, or (ii) promoting, marketing or recommending to another party
any matters addressed herein.cm ND HW PF HW YD
YN Ye NYY NY NR KR Ye Be Be Be Be ewe em we eK
oY A HA FF HY HN FF Soe we A A UH BBN HS
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
At the time of service, I was over 18 years of age and not a party to this action. Iam
employed in the County of Sacramento, State of California. My business address is 400 Capitol
Mall, 27th Floor, Sacramento, CA 95814.
On May 15, 2017, I served true copies of the following document(s) described as
DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF GOLDEN PACIFIC
BANK'S MOTION TO CONTINUE TRIAL on the interested parties in this action as follows:
SEE ATTACHED SERVICE LIST
BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an
agreement of the parties to accept service by e-mail or electronic transmission, I caused the
document(s) to be sent from e-mail address ehamman@kmtg.com to the persons at the e-mail
addresses listed in the Service List. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was unsuccessful.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on May 15, 2017, at Sacramento, Califo:
lube
Enedelia Hamman /\|
1566705. 14023-004 4
DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF
GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIALCo MD YN A WH RB WHY HY
bw NR YN NY NY KY HK YB Be Bw Be Be ewe ewe eB ee
eo INA A FY YN HF Ge weA DAA BON BES
SERVICE LIST
Golden Pacific Bank, N.A. v. BillFloat, Inc., Ryan Gilbert, Sean O'Malley
San Francisco Superior Court, Case No. CGC-16-549804
Attorneys for BillFloat, Inc.: Attorneys for Ryan Gilbert & Sean O'Malley:
William T. Webb
Jennifer D, Yu
Peter L. Isola
Tyler A. Carle
155 Montgomery Street, Ste. 1200 HINSHAW & CULBERTSON LLP
San Francisco, CA 94104 One California Street, 18" Floor
Tel.: 415-277-7200 San Francisco, CA 94111
Fax: 415-277-7210
Tel.: 415-362-6000
Email: wwebb@webblegalgroup.com Fax: 415-834-9070
jyu@webblegalgroup.com Email: Plsola@hinshawlaw.com
1566705.t 14023-004
TCarle@hinshawlaw.com
5
DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF
GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIAL
Preview
a“ BRUCE A. SCHEIDT, State Bar No. 155088 ELECTRONICALLY bscheidt@kmtg.com FILED CHRISTOPHER ONSTOTT, State Bar No. 225968 ‘Superior Court of California, constott@kmig, com County of San Francisco GABRIEL P. HERRERA, State Bar No. 287093 05/19/2017 gherrera@kntg.com Clerk of the Court KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD BY:GARY FELICIANO A Professional Corporation Deputy Clerk 400 Capitol Mall, 27" Floor Sacramento, California 95814 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 Attorneys for Plaintiff/Cross-Defendant GOLDEN PACIFIC BANK, N.A. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO GOT.DEN PACIFIC BANK, N.A., Case No. CGC-16-549804 Plaintiff, DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF GOLDEN PACIFIC v. BANK'S MOTION TO CONTINUE TRIAL BILLFLOAT, INC., RYAN GILBERT, SEAN O'MALLEY, and DOES 1-50, inclusive, Defendants. July.14,.2017 BILLFLOAT, INC. Date: June-+6,2017 Time: 10:00 a.m. Cross-Complainant, Dept.: 606 v. GOLDEN PACIFIC BANK, N.A., and ROES | Case Transferred 1-50, from Sacramento County: January 11, 2016 Cross-Defendants, Trial Date: August 14, 2017 i} Mt Hf 1366705,1 14023-004 DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIALCm IN AW RF Ww 10 I, Bruce A. Scheidt, declare as follows: 1. Iam an attorney duly admitted to practice before this Court. I am a shareholder with Kronick, Moskovitz, Tiedemann & Girard, attorneys of record for Plaintiff/Cross-Defendant Golden Pacific Bank, N.A. ("GPB"). I have personal knowledge of the facts set forth herein, and if called as a witness, I could and would competently testify thereto. 2. On January 10, 2017, I caused to be served thirteen (13) deposition notices on Defendant/Cross-Complainant BillFloat, Inc. (“BillFloat”), requiring BillFloat’s “person most qualified,” or PMQ, to appear at depositions on specific subjects relating to BillFloat’s factual allegations in its 90-page, 405-paragraph first amended cross complaint.' BillFloat objected to each and every topic noticed in the 13 PMQ depositions, forcing GPB to file a motion to compel and seek the assistance of the discovery referee once Judge Warren was appointed and available for hearing. On April 18, 2017, which was the first date on which the discovery referee was available to hear the discovery dispute, Judge Warren required the parties to further meet-and- confer on the issues but gave the partics explicit instructions regarding the propriety of several noticed topics. The discovery referee specifically advised the parties regarding the meaning of Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255 and whether San Francisco Superior Court Judge Harold Kahn's September 27, 2016 order, attached hereto as EXHIBIT A, applied equally to BillFloat’s obligation to present an entity representative for deposition as it applied to GPB’s obligation. With respect to Rifkind, GPB argued that while Rifkind restricted questions asking for legal contentions, it did not prohibit questions related to factual contentions. BillFloat disagreed, arguing that Rifkind applies to factual and legal contentions with respect to allegations in the pleadings and prohibits asking such questions at depositions. The discovery referee rejected BillFloat's interpretation, stating that factual contentions, even if alleged in pleadings, are subject to deposition questioning. Accordingly, the discovery referee ruled that GPB may ask BillFloat contention questions about specific factual allegations in BillFloat's pleadings. With respect to ' BillFloat subsequently filed a 105 page, 469 paragraph second amended cross-complaint after this Court sustained a demurrer with leave to amend as to BillFloat’s tort claims. BillFloat’s amended tort claims were not materially revised and will be the subject of GPB's second demurrer, which will be heard by this Court on May 26, 2017. 1366705.1 14023-004 1 DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIALJudge Kahn's September 27, 2016 discovery order, Judge Warren agreed with GPB’s position that Judge Kahn’s discovery order applies equally to BillFloat as it applies to GPB. Thus, GPB may seek factual information regarding BillFloat's understanding of certain contractual provisions identified in the deposition notices, the bases of BillFloat's understanding of those provisions, and how, if at all, BillFloat implemented those provisions. The parties met and conferred, resolving many but not all of their disputes with the discovery referee's guidance. 3. Despite the explicit instructions of the referee on what objections were improper to the notice topics, BillFloat still persisted in objecting to the exact same noticed topics on the same grounds. Accordingly, on May 3, 2017, Golden Pacific again had to seek the help of the discovery referee to instruct BillFloat, who stated he did not recall whether Judge Warren advised the parties that Judge Kahn's September 27, 2016 order applied equally to GPB’s right to depose BillFloat’s entity representative. The discovery referee reiterated that Judge Kahn's September 27, 2016 order applied as GPB contended. 4, Despite months of requests, BillFloat failed to provide Golden Pacific with available dates for the PMQ depositions to go forward. Accordingly, on May 11, 2017, GPB served updated Person Most Qualified Deposition Notices. Only after these notices were served did BillFloat's counsel, William Webb, email me on May 11, 2017, stating that he was “out of town next week" and that "he should be able to touch base with you soon with some proposals.” Mr. Webb stated that Defendant Sean O'Malley would be the PMQ "for many of the categories." Mr. Webb stated that [Mr, O'Malley] lives in Taiwan. However, he will be back in June; we are checking to see whether he will be available for the MSC on June 16. If so, and I will let you know, you may want to plan on taking those categories around then, as well as his individual deposition, while he is in town." On May 12, 2017, Mr. Webb responded that he needed more time to determine BillFloat representatives who could appear for the PMQ depositions that were noticed originally on January 10, 2017 — more than four months ago, We continued to email each other, back and forth, as I forced the issue of proceeding with these necessary depositions. Mr. Webb refused to commit to any specific date of a deposition; moreover, as of today’s date, he had identified only one person, Sean O’Malley, who woild be available for one of GPB’s 13 separate 1566705.1 14023-004 2 DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIALPMQ depositions that were noticed last January: Our email correspondence is attached hereto as Exhibit B. BillFloat’s attempt to delay GPB's access to materially relevant information for more than four months, with only approximately 90 days remaining until trial, is unacceptable. 5. [also find it curious, however, that BillFloat and Defendants Ryan Gilbert, and Sean O'Malley (altogether “Defendants”) have admitted that their claims are not ready for trial. In a May 3, 2017 email to Judge Warren, Defendants' counsel stated: "We have not yet conducted discovery as to this issue. We will be submitting written discovery, and perhaps entity deposition notices regarding the issue. In other words, at present, we are not prepared for trial on these issues and admittedly do not have much evidence or information on them." A true and correct copy of this email is attached as EXHIBIT C. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed May 15, 2017, at Sacramento, California. ruce A. Scheidt 1566705S.1 14023-004 3 DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIALEXHIBIT AWEBB LEGAL GROUP 155 Montgomery Street, Suite 1200 San Francisco, CA’ 94104 (415) 277-7200 Cm UN NH Bw WILLIAM T, WEBB #193832 JENNIFER D, YU #291603 155 Montgomery Street, Suite 1200 San Francisco, CA 94104" (415) 277-7200 (415) 277-7210 (fax) Attorneys for BILLFLOAT, INC., RYAN GILBERT AND SEAN O’MALLEY SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) GOLDEN PACIFIC BANK, N.A., ) Case No.: CGC-16-549804 Plaintiff, [PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART vy. fee PLAINTIFF/CROSS-DEFENDANT’S MOTION TO QUASH PMQ DEPOSITION BILLFLOAT, INC,, RYAN GILBERT, SEAN ) NOTICES; AND FOR PROTECTIVE O'MALLEY, DOES 1-50, ORDER Defendants. Date: July 26,2016 Time: 9:00 a.m. Dept: 302 BILLFLOAT, INC. Cross-Complainant, 1-50, ) ) v. GOLDEN PACIFIC BANK, N.A., and ROES ; Cross-Defendants. ! raphe ORDER GRANTING IN PART AND DENYING IN PART PLAINTUFF/CROSS-DEFENDANT’S MOTION TO QUASH PMQ DEPOSITION NOTICES; AND FOR PROTECTIVE ORDERWEBB LEGAL GROUP (415) 277-7200 155 Montgomery Street, Suite 1200 San Francisco. CA 94104 CoO YN DH RF YW Dw = = 5 Having read and considered Plaintiff/Cross-Defendant GOLDEN PACIFIC BANK, N.A.’s (“GPB”) Motion to Quash PMQ Deposition Notices; and for Protective Order, and having held a hearing at which Christopher Onstott appeared for the Plaintiff GPB; William T. Webb appeared for Defendant and Cross-complainant BillFloat, Inc., and Defendants Ryan Gilbert and Sean O'Malley; and Robert Lockwood appeared for Defendants Ryan Gilbert and Sean O'Malley; and good cause appearing therefor, IT IS ORDERED THAT: The Motion is GRANTED in part and DENIED in part, 1. Subject to further order of the Court based on demonstrated need after the six depositions are taken: a. GPB shal! produce for deposition to testify on behalf of GPB one person for each of the four contracts, At GPB’s option, that can be one person or two, three or four different persons, The person(s) so designated must be familiar with the specific provisions of the contracts that are mentioned in the deposition notices, GPB’s understanding of those provisions, the bases of GPB’s understanding of those provisions, and how, if at all, GPB has implemented those provisions, b. GPR shall produce an individual for deposition to testify with respect to the Notice of Default, including (1) being able to testify as to the bank’s position as to what the Notice of Default means; (2) the bases for that position, (3) how GPB implemented the Notice of Default; and (4) how GPB arrived at the decision fo send the Notice of Default and who was involved in that process. c, GPB shall produce an individual for deposition to testify on behalf of GPB with respect to the notice that BillFloat was going to enter into other agreements with other lenders . 2. If atier these six depositions are taken, Biilfloat believes it still needs further PMQ depositions with respect to the categories previously noticed, then the parties must meet and confer about BillFloat’s request for further depositions, and BillFloat may apply to the Court for further relief. 3. The aforementioned depositions must take place by September 30, 2016. 4, This Order does not foreclose any Defendant from noticing further PMQ depositions with respect to any other categories not previously noticed, nor does it preclude GPB 1 NTING IN PART AND DENYING IN PART PLAINTIFTZC PRIQ DEPOSITION NOTICES; AND FOR PROTECTIY! ENDANT'S MOTION TO QUASIC {PROPORED] ORD! 1491738,1_ 14023-004from asserting privileges to any questions asked at the depositions, or to any documents produced at the depositions, ITIS SO ORDERED. Dated: SEP 21 ania , 2016 HAROLD KAHN Honorable Harold E. Kahn Judge of Superior Count, County of San Prancisco oY DAH Rw LD 7 Date: September 19, 2016 0 tl 2 Ao - 12 Wilfam T. Webb 5 £8 Jennifer D, Yu Ba%— 13 Attorneys for BILLFLOAT, INC., oRse TA » RYAN GILBERT AND SEAN O’MALLEY Zesh a ben ale "| owe WYaaflle ges 16 7 18 S 1 7 Robert 1. Lockwood 19 Attorneys for RYAN GILBERT AND 20 SEAN O’MALLEY a dae: 4148 Chinbber ud? a Bruce A, Scheidt 25 Christopher Onstott Attorneys for GOLDEN PACIFIC BANK, 26 NA, 27 28 2 TPROPQSED, ORDER GRANTING IN PART AND DENVING IN PART PLAINTUTICROS PMQ DEPOSITION NOTICES; AND KOR PROTECTIVE, FENDANT'S MOTION TO QUASTT ER 1491738). 14023-004EXHIBIT BScheidt, Bruce A. From: Scheidt, Bruce A. Sent: Monday, May 15, 2017 7:24 AM To: William Webb Cc: jyu@webblegalgroup.com; Isola, Peter L.; Onstott, Christopher; Xiong, Bao Subject: Re: GPB/BillFloat We can't wait any longer to schedule my depositions, I noticed these depositions last January. Clearly your strategy is to delay. I've been asking you for dates for two weeks after you asked the discovery to "clarify" a tuling you purportedly could not remember. I'm prepared to discuss all depositions, including Ms. Luzzi, Her deposition however will have to begin after I get to start my depositions of BillFloat's witnesses, as I immediately accommodated your taking three days of depositions of the bank's witnesses, You have not accommodated my PMQ depositions at all, except asking me to wait another six weeks. The discovery referee wants us to talk to each other. That's what I'm trying to do today. As for my being out of the country while on vacation the week of June 5-9, that should be self explanatory. I can't be at a deposition that week. Bruce Sent from my iPhone On May 14, 2017, at 11:09 PM, William Webb wrote: Mr. Scheidt: You have not addressed my questions. 1. Are you going to have your client’s (and Ms. Luzzi’s) availability on Monday morning? If not, it does not appear that we are going to have the ability to iron out a schedule then. Just so you know, I have my clients’ availability (subject to your answering number 2) and am able to sit down with you and schedule depositions when you have their availability. Let’s do that this week if you insist (Wednesday is OK), or first thing next week, if you don’t mind, so J can enjoy a little bit of time with my family while I’m on vacation. 2. I will ask a third time: how are we going to be in two places at one time for the hearing and MSC on June 16? Why won’t you answer this basic question? I need to know the answer to this BEFORE we schedule any depositions, because it bears on Mr. O’Malley’s travel plans. 3, Out of curiosity, why did you tell me about your vacation? Please let me know the answer to these questions, and then I will let you know whether it makes sense to discuss on Monday or Wednesday of this week, or whether it will have to be set over until after we have answers to these questions. Thank you! On May 14, 2017, at 8:25 AM, Scheidt, Bruce A. wrote: 1Mr. Webb, | just reviewed your email from Friday afternoon. Your patronizing, non-productive comments continue to amaze me, as they do not advance your client's position or generate the “collaborative, cooperative approach” you claim you want. Meeting and conferring with me tomorrow on a deposition schedule that is reasonable and takes into account all parties’ needs and availability will advance the goal of a collaborative, cooperative approach we both say we want. With respect to my client’s noticing a PMQ deposition on Joint IP SOWs, the fact your client contends “the parties worked through and settled on these issues a long time ago” is disputed, and you know that. My client’s allegations of fraudulent and/or undisclosed over-charges at the time the Bank paid the Joint IP SOWs does not mean the parties “settled on these issues.” Since you raised the question, that’s the answer. Moreover, your client does not need to like the subject matter of the PMQ deposition. The fact that the allegation is directly at issue in the pleadings puts it clearly within the scope of discovery. Based on your email, it appears we have agreement on a deposition schedule where my side will get three days of depositions, your side will then get three days of depositions, with that alternating regimen continuing throughout the remainder of the discovery period, That is a position | proposed a month ago. Please be advised that | am on a long-planned vacation and out of the country the week of June 5-9, Bruce A. Scheidt From: William Webb [mailto:;wwebb@webblegalgroup.com] Sent: Friday, May 12, 2017 4:03 PM To: Scheidt, Bruce A. Cc: jyu@webblegalgroup.com; Isola, Peter L.; Onstott, Christopher; Xiong, Bao Subject: Re: GPB/BillFloat Hello, Mr. Scheidt: This will all go much more smoothly if we can keep the invective to a minimum. We are obviously going to be trying this case together, and experience has shown that we will work much more effectively when we can cooperate, and part of that is adopting a collaborative tone. Maybe things work differently up there in Sacramento, but down here we take a much more collaborative, cooperative approach to these things. You’re going to get to take your depositions. We are going to get to take our depositions. You should keep in mind that you have asked to take BillFloat’s deposition on a great many categories. We have only recently been provided input from Judge Warren as to how he might rule on certain issues if they were properly before him. That having happened, and you and I having spoken to clarify and streamline your categories, I have then been working with my client to determine 2who is best to produce for each category. I am not going to count how many categories remain, but I note that your recent notice included additional categories that were not in the previous notices, so we are going to have to inquire into these as well, and to read each category to see how, if at all, you may have changed them from what you had originally noticed. We are close to being in a position to discuss this in detail and ascertain availability, etc. We may not be in a final position to do so on Monday, but I will try my best to be as prepared as I can be. Keep in mind that you are asking me to do so essentially first thing on a Monday after I have traveled, on my first day of vacation. Keep in mind also that you have indicated a desire to take two depositions first — the Joint IP SOW deposition, and the Regulation B deposition. Much of the delay in getting back to you is the joint IP SOW issue. As I tried to explain to Mr, Onstott today, who was calling me regarding special interrogatories on the same issue, you are apparently intent on asking a series of questions regarding each and every line item on each and every Joint IP SOW, even though the parties worked through and settled on these issues a Jong time ago. I suppose that is your right, but in order to be able to prepare (or “qualify”) a deponent, it is going to take a great deal of time to do so. We are working through this and will be able to get through it relatively quickly. But it does take some time. And, as I mentioned to you yesterday, the deponent we are in all likelihood going to select for the Reg B categories (or most of them) lives in Taiwan. He will be back for the mandatory settlement conference, which is set for June 16. (Curiously, after this was set, you set a hearing on your motion to continue trial for that same date, and have not responded to my question as to how we are both going to be in two places at the same time; so, I ask again, what arrangements have you made with department 610 and 624 to have both matters at the same time?) So the deponent will be available around June 16, and we can discuss specifics when we talk. Is it your position that you are entitled to a different person? If that’s your position, I am not aware of any authority that you are entitled to pick the person who testifies on behalf of a corporate deponent; the law actually provides that the corporation selects that person. Let me know if you want me to provide citations (most “PMQ” law comes from cases decided under the FRCP, as you have already pointed out to Judge Kahn). As far as the timing of our meet and confer efforts go, I am happy to meet with you on Monday at 10:00 a.m. as you suggest, as long as you are willing to also discuss availability of your clients (i.e. the five non-party witnesses we subpoenaed and Heather Luzzi). We had previously agreed that we would do the depositions in a manner where you take depositioris for three days, and then I do, and we go back and forth in that manner, We agreed that you go first, because we have already taken three days of depositions, and that sounds fair to me. Keep in mind, though, that several of your notices contain categories that will require different deponents, and so when we discuss the calendaring, it may be necessary and expedient to discuSs depositions that will take place on different 3days due to witness availability. In other words, if Mr. O’Malley is in town, it may make a lot more sense to work through the categories for which he will be provided on a certain day rather than adhere to taking all categories of a certain notice on the same day. Make sense? We can discuss on Monday as you suggest. However, my suggestion wouid be to put that off for a couple of days so that I can create a spreadsheet based on the categories in each notice. I can then fill in a chart with who our deponent is going to be (something to which you would not be otherwise entitled to beforehand) and we can discuss what categories you want to take then. In other words, it will be a more efficient discussion about mid-week next week, I am already meeting and conferring with Mr, Onstott that morning, and am happy to talk with you then as well. I think our meeting will be far more productive if it takes place then. Keep in mind that I am on vacation next week, and despite having advised you of my unavailability, ¥ am still happy to take the time to accomplish this and to meet *. and confer with you. Regardless as to when we meet and confer, please have your clients’ (and Ms. Luzzi’s) availability as well. Otherwise, I will only agree to schedule the first three days’ worth because otherwise I am afraid our calendars will be likely to fill with only my client’s depositions. It is only fair that if we are going to schedule three on-three off as it were, that we take turns scheduling them as well. In other words, let’s schedule three days for you, three days for me, three days for you... I’m confident we can work this out, and look forward to doing so. Please do get back to me on how we are going to be two places at the same time on the 16th; if you are going to be asking that the MSC be moved, that will affect Mr. O’Malley’s travel plans from Taiwan and therefore bear materially on our ability to schedule. Please do so before we meet and confer on the dates for the depositions. Please also get back to counsel and the judicial referee regarding his request for a conference call. Have a great weekend! Best, BillOnstott, Christopher From: Scheidt, Bruce A. Sent: Thursday, May 11, 2017 4:44 PM To: William Webb Ce: jyu@webblegalgroup.com; Isola, Peter L; Onstott, Christopher; Xiong, Bao Subject: RE: GPB/BillFloat Bill, My client will not wait until the end of June to take depositions that were noticed in early January. That is not reasonable and should be subject to monetary and issues sanctions if | move to compel. | don’t think you want to defend your actions in delaying BillFloat’s representatives for PMQ depositions unti! late June when those depositions were noticed in January. Your client has had four months to selecta PMQ. Clearly this is part of a strategy to push for a trial date in mid-August while forcing us to delay critical discovery and be unprepared. | find it curious that | proposed these dates to you last week in an email, you did not object then, but you waited a full week to tell me that you are not available next week. i am available to meet and confer immediately to schedule the first several set of PMQ depositions that already have been delayed for four months because of your tactics. Your email earlier today said you are available any time after 10:00 a.m. on Monday. What time are you available after 10:00 a.m.? | am prepared to discuss a deposition schedule that works for both sides fairly and equally. | am not going to wait beyond Monday to meet and confer. Judge Warren will be called in to intervene if you delay the meet-and-confer, since you have already announced your availability on Monday. The meet and confer should include your identification of PMQ depositions in which Sean O'Malley is not the entity witness, so we can schedule them. Moreover, your client has options in selecting an entity representative. “Most qualified” means only that the entity representative must learn what information is reasonably available, even if he or she does not have prior knowledge of that information. “Under the current law, ‘[i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses. And, if the particular officer or employee designated lacks personal knowledge of all the information sought, he or she is supposed to find out from those who do!” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1395-96.) BillFloat is required to produce someone from the company with knowledge of the subjects in the deposition subpoena. If that person claims he does not have knowledge of the topics in the subpoena, BillFloat must find out from someone who does have that knowledge.Bruce A. Scheidt Attorney at Law MOSKOVITZ TIEDEMANN & GIRARD. 400 Capitol Mall, 27" Floor Sacramento, CA 95814 916.321.4500 F | 916.321.4555 bscheidt@kmtg.com ww.kmitg.com CONFIDENTIALITY: This communication may contain confidential information. If you are not the intended recipient, of believe that you have received this coimunicatin in error, please do net print, copy. retransmit, disseminate, or otheraise use the information, Also, please indicate to the sender that you have received this email in error, and delete the copy you raceived. IRS CIRCULAR 230 DISCLOSURE: Pursuant to Treasury Regulations, any tax advice cantained in this communication (including any attachments) is not intended of writlen to be used, and cannot be used of relied upon by you or any olhier persan, for the purpose of {i) aveiding penalties under the Internal Revenue Code, or {ii) promoting, markeling or recommending to another party any tax advice addressed herein, Thank you, From: William Webb [mailto:;wwebb@webblegalgroup.com] Sent: Thursday, May 11, 2017 1:03 PM To: Scheidt, Bruce A. Cc: jyu@webblegalgroup.com; Isola, Peter L. ; Onstott, Christopher ; Xiong, Bao Subject: Re: GPB/BillFloat Hi, Bruce: For your planning purposes, know that the depositions won’t go forward then because, as I’ve communicated, I am out of town next week. We have made a lot of progress on figuring who will be available when for what categories, and I should be able to touch base with you soon with some proposals. As a head’s up, Sean O’ Malley is going to be the PMQ for many of the categories; he lives in Taiwan. However, he will be back in June; we are checking to see whether he will be available for the MSC on June 16. If so, and I will let you know, you may want to plan on taking those categories around then, as well as his individual deposition, while he is in town. Again, back to you soon. It has been a lot of work to get the categories settled because there are so many. Once we get it settled who will be testifying as to what, it should be easy to get things scheduled. On your end, please start gathering availability for those whose deposition we have noticed so we can schedule them as well. Once we both have each others’ availability, let’s set up a phone call (can be next week or the week after) to hammer out the calendar on the phone; it will be a lot easier to juggle then. Thanks, BillOn May 11, 2017, at 11:22 AM, Scheidt, Bruce A. wrote: Having heard no objection to these dates after multiple meet-and-confer efforts on dates, and having a trial date staring at us — which your clients will not move - here are the PMQ deposition notices on the dates | previously proposed. We cannot delay any further. Bruce A. Scheidt Attorney at Law 400 Capitol Mall, 27” Floor Sacramento, CA 95814 916.321.4500 916.321.4555 bscheidt@kmta.corn wuw.kmtg.com CONFIDENTIALITY: This communication may contain confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do rot print, copy, retransmit, disseminale, or otherwise use the information. Also, please indicate fo the sender that you have received this email in error, and delete the copy you zeceived. IRS CIRCULAR 230 DISCLOSURE: Pursuant to Treasury Regulations, any tax advice contained in this communication {including any atlachmients) is nol intended or written to be used, and cannot be used ar relied upon by you or any other person, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any tax advice addressed herein, Thank you. <2017-05-11 GPB_s Amended Notice of Deposition Number 4.PDF><2017-05-1 1 GPB_s Amended Notice of Deposition Number 6.PDF> Best, Bill William T. Webb a Wee LEGAL GROUP 155 Montgomery Street, Suite 1200 San Francisco, CA 94104 (415) 277-7200 (415) 277-7210 (fax) wwebb@webblegalgroup.com www.webblegalgroup.com Please consider the environment before printing this e-mail.NOTICE: This e-mail and any attachments to it may be privileged, confidential or contain trade secret information. If this e-mail was sent to you in error, please notify me immediately by either reply e-mail or by phone at 415-277-7200, and please do not _ use, disseminate, retain, print or copy the e-mail or its attachment. You will be reimbursed for any reasonable expenses associated with destroying this e-mail and its attachments. IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or applicable state or local tax law provisions, or (ii) promoting, marketing or recommending to another party any matters addressed herein.EXHIBIT CHamman, Enedelia From: William Webb Sent: Wednesday, May 3, 2017 11:32 AM To: Tina Oja Ce: Xiong, Bao; Scheidt, Bruce A,; Onstott, Christopher; Herrera, Gabriel; jyu@webblegalgroup.com; Hamman, Enedelia Subject: Re: GPB/BillFloat - PMQ depositions Hello, Ms. Oja: In addition to the letter from Mr. Schist, there is another issue to discuss, which is as follows. We would appreciate it if you could forward this email to Judge Warren prior to our call, Thank you! There are a small number of contentions that we alleged under information and belief. They want us to produce a PMQ to testify. We have not yet conducted discovery as to this issue. We will be submitting written discovery, and perhaps entity deposition notices regarding the issue. In other words, at present, we are not prepared for trial on these issues and admittedly do not have much evidence or information on them. Specifically, in our conversation, we discussed as follows. BillFloat has alleged that GPB entered into an agreement with a company called Digital Insights in violation of the “most favored nations clause.” GPB wants to know the basis of that claim. That’s fine. But Mr. Scheidt said that the contract with Digital Insights was entered into before the contracts with BillFloat. I suggested that he get me that contract, and assuming it’s dated before the Parties’ agreements, then this may bear on whether we pursue this issue at trial. He declined to do so, and said that we have a duty to produce someone now to testify on this. We have not submitted discovery on this issue, and do not have any documents regarding this relationship. I suggested that we hold on to these and wait to see what information GPB produces in discovery on these issues before Mr. Scheidt takes the depositions on these categories. (Notice 10, categories 12 and 13.) Mr. Scheidt insists on going forward. This is fine with me, even though it’s a waste of time, but object to producing someone now and after we have conducted discovery. Mr. Scheidt says he is entitled to both. To be clear, our deponent will say that he or she knows virtually nothing about this claim, because GPB is in possession of all relevant material. If the deadline for dispositive motions had not already expired, I can see why Mr. Scheidt might want to develop this information as the basis for a dispositive motion, but since they are not going to be able to file a dispositive motion, it’s a waste of time. BillFloat just brings this to your attention, because if the deposition goes forward right now, we will be objecting to further depositions, and want to be fair to you and to give you the opportunity to weigh in on that issue now, rather than after the deposition is taken. Best, BillOn May 2, 2017, at 3:44 PM, Tina Oja wrote: Dear Counsel, Judge Warren wanted me to let you all know that he will only have 15 minutes for tomorrow's call since he will be taking your call in the middle of his mediation. There will be a hard stop after 15 minutes but he said the letter was very helpful and he looks forward to speaking with you tomorrow. Thank you, Tina Tina Oja Case Manager Two Embarcadero Center, Suite 1500 San Francisco, CA 94111 P: 415-774-2627 F: 41-982-5287 Sign up to join the waiting lists for JAMS Neutrals who may become available on short notice. U.S, | International | LinkedIn | Twitter From: Tina Oja Sent: Tuesday, May 02, 2017 2:22 PM To: 'Xiong, Bao' Ce: Scheidt, Bruce A. ; Onstott, Christopher ; Herrera, Gabriel ; wwebb@webblegalgroup.com; jyu@webblegalgroup.com; Hamman, Enedelia Subject: RE: GPB/BillFloat - PMQ depositions Received. | have forwarded this to Judge Warren. . Thank you, Tina Tina Oja Case Manager Two Embarcadero Center, Suite 1500 San Francisco, CA 94111 P: 415-774-2627 F: 41-982-5287 Sign up to join the waiting lists for JAMS Neutrals who may become available on short notice. U.S. | International | LinkedIn | TwitterBest, Bill From: Xiong, Bao [mailto:bxiong@kmtg.com Sent: Tuesday, May 02, 2017 2:14 PM To: Tina Oja Cc: Scheidt, Bruce A. ; Onstott, Christopher ; Herrera, Gabriel ; wwebb@webblegalgroup.com; jyu@webblegalgroup.com; Hamman, Enedelia Subject: GPB/BillFloat - PMQ depositions Attached please find a correspondence from Bruce Scheidt. Thank you. Bao Xiong Assistant to Bruce A. Scheidt & Gabriel P. Herrera 400 Capitol Mall, 27" Floor Sacramento, CA 95814 916.321.4500 916.321.4555 bxiona@kmta.com wy. kmitg.com CONFIDENTIALITY: This communication may contain confidentiat information. if you are not the intended recipient, or believe that you have received this communication in ercor, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this email in error, and delete the copy you received, IRS CIRCULAR 230 DISCLOSURE: Pursuant to Treasury Regulations, any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used or relied upon by you or any other person, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (i) promoting, marketing or recommending to anather party any tax advice addressed herein. Thank you. William T. Webb Wess LEGAL GROUP 155 Montgomery Street, Suite 1200 San Francisco, CA 94104 (415) 277-7200 (415) 277-7210 (fax) wwebb@webblegalgroup.com www.webblegalgroup.comPlease consider the environment before printing this e-mail. NOTICE: This e-mail and any attachments to it may be privileged, confidential or contain trade secret information. If this e-mail was sent to you in error, please notify me immediately by either reply e-mail or by phone at 415-277-7200, and please do not use, disseminate, retain, print or copy the e-mail or its attachment. You will be reimbursed for any reasonable expenses associated with destroying this e-mail and its attachments. IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or applicable state or local tax law provisions, or (ii) promoting, marketing or recommending to another party any matters addressed herein.cm ND HW PF HW YD YN Ye NYY NY NR KR Ye Be Be Be Be ewe em we eK oY A HA FF HY HN FF Soe we A A UH BBN HS PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SACRAMENTO At the time of service, I was over 18 years of age and not a party to this action. Iam employed in the County of Sacramento, State of California. My business address is 400 Capitol Mall, 27th Floor, Sacramento, CA 95814. On May 15, 2017, I served true copies of the following document(s) described as DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIAL on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the document(s) to be sent from e-mail address ehamman@kmtg.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 15, 2017, at Sacramento, Califo: lube Enedelia Hamman /\| 1566705. 14023-004 4 DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIALCo MD YN A WH RB WHY HY bw NR YN NY NY KY HK YB Be Bw Be Be ewe ewe eB ee eo INA A FY YN HF Ge weA DAA BON BES SERVICE LIST Golden Pacific Bank, N.A. v. BillFloat, Inc., Ryan Gilbert, Sean O'Malley San Francisco Superior Court, Case No. CGC-16-549804 Attorneys for BillFloat, Inc.: Attorneys for Ryan Gilbert & Sean O'Malley: William T. Webb Jennifer D, Yu Peter L. Isola Tyler A. Carle 155 Montgomery Street, Ste. 1200 HINSHAW & CULBERTSON LLP San Francisco, CA 94104 One California Street, 18" Floor Tel.: 415-277-7200 San Francisco, CA 94111 Fax: 415-277-7210 Tel.: 415-362-6000 Email: wwebb@webblegalgroup.com Fax: 415-834-9070 jyu@webblegalgroup.com Email: Plsola@hinshawlaw.com 1566705.t 14023-004 TCarle@hinshawlaw.com 5 DECLARATION OF BRUCE A. SCHEIDT IN SUPPORT OF GOLDEN PACIFIC BANK'S MOTION TO CONTINUE TRIAL