Preview
1 Shayna Balch Santiago (SBN 304802)
E-Mail: ssantiago@fisherphillips.com
2 FISHER & PHILLIPS LLP
3200 N. Central Avenue, Suite 1550
3 Phoenix, Arizona 85012-2487
Telephone: (602) 281-3400
4 Facsimile: (602) 281-3401
5 Kathryn M. Evans (SBN 323190)
E-Mail: kmevans@fisherphillips.com
6 FISHER & PHILLIPS LLP
4747 Executive Drive, Suite 1000
7 San Diego, California 92121
Telephone: (858) 597-9600
8 Facsimile: (858) 597-9601
9 Attorneys for Defendants,
UCOMMG, LLC; Unified Communications Group, Inc.;
10 Kenneth W. Newbatt; Bianca Newbatt; Mitchell C.
Lipkin; Michael J. Bellas; Jimmie Garrett Baker, Jr.;
11 WesTele Utility Solutions, LLC; and Cynthia Baker
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 FOR THE COUNTY OF SANTA BARBARA - ANACAPA DIVISION
14 BUTLER AMERICA, LLC, a Delaware CASE NO.: 20CV03877
limited liability company, [Unlimited Jurisdiction]
15
Plaintiff, Assigned for all purposes to the
16 Honorable Donna D. Geck, Dept. 4
v.
17 DEFENDANTS’ OPPOSITION TO
UCOMMG, LLC, a Nevada limited liability PLAINTIFF’S MOTION FOR ORDER
18 company; UNIFIED COMMUNICATIONS COMPELLING FURTHER RESPONSES
GROUP, INC., a dissolved Washington TO PLAINTIFF’S REQUESTS FOR
19 corporation; KENNETH W. NEWBATT, an PRODUCTION OF DOCUMENTS
individual; BIANCA NEWBATT, an (SET ONE)
20 individual; MITCHELL C. LIPKIN, an
individual; MICHAEL J. BELLAS, an [Filed concurrently with Separate Statement
21 individual; JIMMIE GARRETT BAKER, JR., and Declaration of Kathryn M. Evans]
an individual; WESTELE UTILITY
22 SOLUTIONS, LLC, a California limited DATE: April 1, 2022
liability company; and DOES 1 through 50, TIME: 10:00 a.m.
23 inclusive, DEPT.: 4
24 Defendants. Complaint Filed: November 20, 2020
Removal Filed: January 4, 2021
25 FAC Filed: April 16, 2021
SAC Filed: December 3, 2021
26 Trial Date: Not Set
27
28
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)
FP 43468771.1
1 TABLE OF CONTENTS
2 I. INTRODUCTION ............................................................................................................ 1
3 II. RELEVANT FACTS ........................................................................................................1
4 A. Plaintiff Files Its Trade Secret Misappropriation Complaint and Fails to
Provide Its Mandatory Trade Secret Disclosures..................................................1
5
B. Defendants File a Demurrer and Motion to Quash After Remand .......................3
6 C. Plaintiff Propounds Overbroad Discovery and Defendants Respond to the
Few Discovery Requests Related to Jurisdiction ..................................................3
7
D. Plaintiff Abandons Its Trade Secret Cause of Action ...........................................3
8
E. Plaintiff Failed to Adequately Meet and Confer Prior to Filing This Motion
9 ...............................................................................................................................4
10 III. LEGAL ARGUMENT ......................................................................................................6
11 A. Plaintiff’s Requests Are Incredibly Overbroad and Are Not Aimed at the
Issue of Personal Jurisdiction................................................................................6
12
B. Defendants’ Objections Based on Section 2019.210 Are Meritorious .................7
13
1. Plaintiff Is Statutorily Obligated to Provide Trade Secret
14 Disclosures ................................................................................................7
15 2. Section 2019.210 Continues to Apply Despite Plaintiff’s Removal
of Its Misappropriation Cause of Action ..................................................8
16
3. The Allegations in the SAC and Plaintiff’s Rule 26 Disclosures
17 Are Insufficient to Satisfy Plaintiff’s Obligations Under Section
2019.210....................................................................................................9
18
3. Plaintiff’s Overbroad Requests Impermissibly Seek Merits
19 Discovery ................................................................................................11
20 C. Plaintiff Failed to Address Defendants’ Other Objections .................................12
21 D. Plaintiff’s Motion Should Be Denied Because Plaintiff Failed to Meet and
Confer Regarding the Discovery at Issue ...........................................................13
22
E. Plaintiff’s Motion Is Procedurally Defective ......................................................13
23
1. Plaintiff’s Motion Improperly Combines Two Separate Motions ..........13
24
2. Plaintiff’s Separate Statement Is Defective ............................................14
25
IV. PLAINTIFF’S REQUEST FOR SANCTIONS SHOULD BE DENIED AND
26 INSTEAD SANCTIONS SHOULD BE AWARDED TO DEFENDANTS ..................14
27 V. CONCLUSION ...............................................................................................................15
28
1
TABLE OF CONTENTS
FP 43468771.1
1 TABLE OF AUTHORITIES
2 Page(s)
3 Federal Cases
4 Goodyear Dunlop Tires Operations, S.A. v. Brown
(2011) 564 U.S. 915 ................................................................................................................ 6
5
Interserve, Inc. v. Fusion Garage PTE, Ltd.
6 (N.D. Cal. April 9, 2010) No. C 09-0512 JW (PVT), 2010 WL 1445553 ............................. 9
7 Neothermia Corp. v. Rubicor Med., Inc.
(N.D. Cal. 2004) 345 F.Supp.2d 1042 ................................................................................ 8, 9
8
Roth v. Marquez
9 (9th Cir. 1985) 942 F.2d 617 .................................................................................................. 6
10 Walden v. Fiore
(2014) 571 U.S. 277 ................................................................................................................ 6
11
State Cases
12
Advanced Modular Sputtering, Inc. v. Superior Court
13 (2005) 132 Cal.App.4th 826 ................................................................................................... 7
14 Aquila, Inc. v. Superior Court
(2007) 148 Cal.App.4th 556 ................................................................................................... 6
15
Board of Trustees v. Superior Court
16 (1981) 119 Cal.App.3d 516 .................................................................................................. 12
17 Brescia v. Angelin
(2009) 172 Cal.App.4th 133 ................................................................................................. 14
18
Clement v. Alegre
19 (2009) 177 Cal.App.4th 1277 ............................................................................................... 13
20 DeBlase v. Superior Court
(1996) 41 Cal.App.4th 1279 ................................................................................................. 13
21
Mills v. U.S. Bank
22 (2008) 166 Cal.App.4th 871 ................................................................................................. 14
23 Perlan Therapeutics, Inc. v. Superior Court
(2009) 178 Cal.App.4th 1333 ..................................................................................... 8, 10, 12
24
Townsend v. Superior Court
25 (1998) 61 Cal.App.4th 1431 ................................................................................................... 1
26
27
28
1
TABLE OF AUTHORITIES
FP 43468771.1
1 State Statutes
2 California Code of Civil Procedure § 2016.040 ..................................................................... 4, 13
3 California Code of Civil Procedure § 2019.210
............................................................................................... 2, 3, 4, 7, 8, 9, 10, 11, 12, 14, 15
4
California Code of Civil Procedure §§ 2023.030(a) ................................................................... 15
5
California Code of Civil Procedure § 2030.300(d) ..................................................................... 14
6
Rules
7
California Rule of Court, Rule 3.1345 .................................................................................. 13, 14
8
Other Authorities
9
Weil & Brown, et al. Cal. Prac. Guide: Civ. Pro. Before Trial 8.60.1 ......................................... 7
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TABLE OF AUTHORITIES
FP 43468771.1
1 I. INTRODUCTION
2 Plaintiff Butler America, LLC’s Motion to Compel Further Responses to Plaintiff’s
3 Request for Production of Documents, Set One, is procedurally improper and substantively
4 meritless. Plaintiff’s motion is plagued with two significant defects: first, Plaintiff seeks
5 extremely broad categories of documents without any meaningful limitations and therefore seeks
6 merits discovery that is unavailable by statute until Plaintiff identifies the alleged trade secrets
7 and “confidential information” with particularity. Plaintiff’s requests are unrelated to jurisdiction
8 and Plaintiff’s attempt to sidestep mandatory procedural safeguards should not be tolerated.
9 In the limited instances in which Plaintiff did seek information related to jurisdiction,
10 Specially Appearing Defendants UCOMMG, LLC and Unified Communications Group, Inc.
11 (“UCG”) already provided the information. And even in the areas in which the parties differed
12 at the margins, Defendants were willing to supplement their responses to provide discrete
13 additional information. Nonetheless, Plaintiff brought these motions on entirely overbroad
14 discovery requests without complying with its statutory disclosure obligations.
15 Second, Plaintiff failed to meet and confer. Before filing a motion to compel, the moving
16 party must meet and confer with the same “candor, specificity, and support” as its briefing in a
17 discovery motion. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.) Plaintiff’s
18 entire meet and confer effort consisted of sending boilerplate letters repeating the same six
19 sentences for every single discovery request, with no attempt to provide any substantive analysis
20 or discussion as to why each response was not sufficient, how each request is narrowly tailored
21 to demonstrate jurisdiction, or why each request does not overlap with Plaintiff’s allegations that
22 Defendants misappropriated or used Plaintiff’s “confidential information” and trade secrets.
23 Accordingly, Defendants respectfully request that this Court deny Plaintiff’s motion in
24 its entirety and award Defendants their attorneys’ fees needlessly incurred by this motion.
25 II. RELEVANT FACTS
26 A. Plaintiff Files Its Trade Secret Misappropriation Complaint and Fails to
27 Provide Its Mandatory Trade Secret Disclosures
28 On November 20, 2020, Plaintiff filed this lawsuit alleging that Defendants
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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO
REQUEST FOR PRODUCTION OF DOCS (SET ONE)
FP 43468771.1
1 misappropriated Plaintiff’s trade secrets. After timely removing the matter to federal court,
2 defense counsel sent a letter to Plaintiff on March 30, 2021 requesting Plaintiff identify the trade
3 secrets at issue pursuant to Code of Civil Procedure section 2019.210. (Declaration of Kathryn
4 M. Evans (“Evans Decl.) ¶ 2, Ex. A.) Defendants requested Plaintiff provide its disclosure no
5 later than April 6, 2021. (Ibid.) Plaintiff failed to provide the requested information. (Ibid.)
6 On April 5, 2021, defense counsel emailed Plaintiff and again requested Plaintiff provide
7 its trade secret disclosures. (Evans Decl. ¶ 3, Ex. B.) Plaintiff responded the same day and stated
8 that the trade secret disclosures would be provided as part of Plaintiff’s Rule 26 disclosures.
9 (Evans Decl. ¶ 4, Ex. C.) On April 30, 2021, Plaintiff produced its Rule 26 disclosures but failed
10 to include any trade secret disclosures pursuant to section 2019.210. (Evans Decl. ¶ 5, Ex. D.)
11 On May 6, 2021, defense counsel emailed Plaintiff regarding Plaintiff’s failure to include
12 any trade secret designations in its initial disclosures. (Evans Decl. ¶ 6, Ex. E.) Plaintiff responded
13 on May 7, 2021, stating that it would provide a document production that included the alleged
14 trade secrets at issue. (Evans Decl. ¶ 7, Ex. F.) That same day, Plaintiff produced a document
15 production including several internal emails from Plaintiff, some documents from UCG, and two
16 pages that were fully redacted. (Evans Decl. ¶ 8.)
17 On May 10, 2021, the parties had a phone call in which Plaintiff’s counsel indicated that
18 the trade secret information had been redacted from the document production. (Evans Decl. ¶ 9.)
19 Plaintiff’s counsel also indicated there were other trade secrets at issue but did not disclose them.
20 (Ibid.) On May 12, 2021, defense counsel sent Plaintiff’s counsel an email summarizing the May
21 10 phone conversation and stated again that Plaintiff had an affirmative obligation to provide the
22 trade secret disclosures pursuant to section 2019.210. (Evans Decl. ¶ 9, Ex. G.) On May 13, 2021,
23 Plaintiff’s counsel responded to defense counsel’s email and stated that Defendants were free to
24 pursue discovery to determine the alleged trade secrets at issue. (Evans Decl. ¶ 10, Ex. H.)
25 On May 20, June 7, and July 2, 2021, defense counsel once again requested that Plaintiff
26 provide its trade secret disclosures. (Evans Decl. ¶ 11-13, Exs. I-K.) Defense counsel suggested
27 a call with the magistrate judge regarding the dispute. (Ibid.) Plaintiff’s counsel refused to
28 provide any disclosures and did not agree to a call with the magistrate.
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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)
FP 43468771.1
1 B. Defendants File a Demurrer and Motion to Quash After Remand
2 On August 3, 2021, the matter was remanded to state court. (Evans Decl. ¶ 14.) On August
3 20, 2021, defense counsel emailed Plaintiff’s counsel again requesting Plaintiff comply with
4 section 2019.210. (Evans Decl. ¶ 15, Ex. L.) Plaintiff ignored this request. (Ibid.)
5 On September 22, 2021, Defendants filed a demurrer and motion to quash service of
6 summons on the basis that this Court does not have jurisdiction over UCOMMG, UCG, Kenneth
7 Newbatt, Bianca Newbatt, Michael Bellas, and Mitchell Lipkin. (Evans Decl. ¶ 15.)
8 C. Plaintiff Propounds Overbroad Discovery and Defendants Respond to the
9 Few Discovery Requests Related to Jurisdiction
10 On September 27, 2021, Plaintiff served no less than 78 separate discovery requests (27
11 special interrogatories, 9 form interrogatories, and 22 sweeping requests for production) on
12 UCOMMG and UCG. (Evans Decl. ¶ 17, Ex. M.)
13 On October 26, 2021, Defendants sent Plaintiff a letter stating the propounded discovery
14 was improper due to Plaintiff’s failure to provide any section 2019.210 disclosures. (Evans Decl.
15 ¶ 18, Ex. N.) Plaintiff failed to provide any response to this letter. (Ibid.) On October 29, 2021,
16 UCOMMG and UCG served responses to the discovery requests that solely sought information
17 relating to jurisdiction and objections to the remainder of the requests. (Evans Decl. ¶ 19, Ex. O.)
18 D. Plaintiff Abandons Its Trade Secret Cause of Action
19 On the eve of its deadline to oppose Defendants’ demurrer and motion to quash, Plaintiff
20 improperly filed its SAC without seeking leave of court or agreement of Defendants. (Evans
21 Decl. ¶ 20.) The improperly filed SAC does not add any additional factual allegations. Instead,
22 the only differences between the FAC and the SAC is (1) the removal of the trade secrets cause
23 of action; (2) the re-addition of causes of action that had previously been removed in the FAC;
24 and (3) use of the term “confidential information” in lieu of “trade secrets” throughout the SAC.
25 (Ibid.) On December 3, 2021, this Court sustained Defendants’ demurrer to the FAC with leave
26 to amend and deemed the SAC as filed pursuant to that leave to amend. (Evans Decl. ¶ 21.)
27 ///
28 ///
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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)
FP 43468771.1
1 E. Plaintiff Failed to Adequately Meet and Confer Prior to Filing This Motion
2 On December 3, 2021, this Court issued a ruling continuing the Nonresident Defendants’
3 motion to quash to March 11, 2022 to permit Plaintiff to conduct jurisdictional discovery. (Ibid.)
4 The Court also acknowledged that the scope of the discovery sought by Plaintiff is limited due
5 to the mandatory trade secret disclosures required by section 2019.210 and that eliminating the
6 misappropriation of trade secret claims from the SAC did not necessarily imply that section
7 2019.210 does not apply to the remaining causes of action. (Ibid.)
8 After the Court issued its ruling on December 3, 2021, Plaintiff waited over a week until
9 Saturday, December 11, 2021 at 5:39 p.m. to send a two paragraph “meet-and-confer” email on
10 Defendants’ discovery responses that utterly failed to comply with the meet and confer
11 requirements set forth in Code of Civil Procedure section 2016.040. (Evans Decl. ¶ 22, Ex. P.)
12 Specifically, Plaintiff sought to meet and confer on 24 interrogatories and 23 requests for
13 production addressed to two different defendants, but Plaintiff failed to address any specific
14 discovery responses or objections with which Plaintiff took issue. (Ibid.)
15 Defense counsel responded to Plaintiff’s counsel’s email on Tuesday, December 14, 2021
16 at 1:44 p.m. affirming its intention to meet and confer in good faith and requesting Plaintiff
17 identify the requests upon which it intended to move to compel and the authority upon which
18 Plaintiff contended that Defendants’ responses were improper. (Evans Decl. ¶ 23, Ex. Q.)
19 Defense counsel also invited a phone call to telephonically meet and confer that afternoon. (Ibid.)
20 Plaintiff’s counsel responded, stating that the purpose of the December 11 email was not
21 to “discuss the propriety of the discovery requests” but instead was only to ask whether Plaintiff
22 could have an extension of time to file motions to compel. (Evans Decl. ¶ 24, Ex. R.) Plaintiff
23 then demanded an extension on its motion to compel deadlines by 45 days. (Ibid.)
24 Defense counsel immediately responded that same day and informed Plaintiff’s counsel
25 that a 45-day extension would not leave enough time to complete briefing and for the court to
26 issue a ruling on any discovery disputes prior to the hearing on the motion to quash. (Evans Decl.
27 ¶ 25, Ex. S.) Defense counsel granted a two-week extension on the motion to compel deadlines
28 to allow the parties time to meet and confer. (Ibid.) In response, Plaintiff demanded an additional
4
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)
FP 43468771.1
1 five-day extension on the motion to compel deadline. (Evans Decl. ¶ 26, Ex. T.) Defense counsel
2 acquiesced to the extension but expressly reminded Plaintiff’s counsel that the Court instructed
3 the parties to proceed with diligence on the jurisdictional discovery. (Ibid.)
4 Plaintiff then waited an additional week before sending four meet and confer letters at
5 11:53 p.m. on Wednesday, December 22, 2021 (just before the Christmas holiday) and
6 demanding supplemental responses within one business day by close of business on Monday,
7 December 27, 2021, despite knowing that Friday, December 24 was a court holiday. (Evans Decl.
8 ¶ 27, Ex. U.) Again, Plaintiff’s meet and confer letters were utterly deficient and merely copied
9 and pasted the same six sentences as to each and every request at issue rather than providing any
10 substantive analysis or discussion on how the discovery responses were not sufficient, how each
11 request was narrowly tailored to demonstrate jurisdiction, or why the requests did not overlap
12 with Plaintiff’s allegations that Defendants misappropriated or used Plaintiff’s trade secret or
13 “confidential” information.
14 Nonetheless, despite Plaintiff’s failure to properly meet and confer, three business days
15 later on December 29, 2021, defense counsel responded to Plaintiff’s letter. (Evans Decl. ¶ 28,
16 Ex. V.) In the response, UCOMMG and UCG agreed to supplement its objections and responses
17 to several Special Interrogatories to more closely track the objections and responses set forth in
18 the individual defendants’ discovery responses to the same or similar requests (which were
19 served after Defendants had the benefit of the Court’s December 3, 2021 ruling. (Ibid.) As to the
20 remaining discovery requests, Defendants delineated the multiple reasons why the requests were
21 improper and why Defendants objections were appropriate. (Ibid.) UCOMMG and UCG’s
22 supplemental responses were served on March 18. (Evans Decl. ¶ 31, Ex. Y.)
23 In sum, UCOMMG and UCG substantively responded to Form Interrogatories - General
24 Nos. 1.1, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and Special Interrogatories Nos. 2, 13, 14, 17, 18, 22, 23
25 and 24. (Ibid.) UCOMMG’s and UCG’s responses, as well as the declarations in support of the
26 motion to quash, confirm the absence of the resident forum contacts required for personal
27 jurisdiction in the state of California, including, among other things, that UCOMMG is a Nevada
28 corporation with its principal place of business in Washington; UCG is a dissolved Washington
5
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)
FP 43468771.1
1 corporation with its principal place of business in Washington; Unified does not have any
2 employees or clients in California; UCOMMG has one employee that performed limited remote
3 work in California and does not have any clients in California; Defendants do not have any offices
4 or places of business in California; Defendants do not maintain bank accounts in California;
5 Defendants have not entered any agreements or contracts with Frontier Communications in
6 California; Defendants did not enter in any business “transactions” with Frontier
7 Communications in California; and Defendants have not engaged in marketing efforts geared
8 specifically towards the generation of business in California. (Ibid.)
9 III. LEGAL ARGUMENT
10 A. Plaintiff’s Requests Are Incredibly Overbroad and Are Not Aimed at the
11 Issue of Personal Jurisdiction
12 Plaintiff’s requests are extremely overbroad and are not narrowly tailored to the issue of
13 general or specific personal jurisdiction. For example, RFP No. 10 seeks all documents that
14 “relate to” all contracts and agreements that Defendants entered into with Frontier
15 Communications. Frontier Communications is based in Connecticut and operates in many states.
16 On its face, this request is not tailored to personal jurisdiction. RFP Nos. 3 and 4 seek all
17 documents “related to” communications between Defendants and Frontier Communications
18 office or locations in California. Communications with an in-state plaintiff is insufficient to
19 establish personal jurisdiction; let alone a party’s communications with a third party. (Roth v.
20 Marquez (9th Cir. 1985) 942 F.2d 617, 6222; Walden v. Fiore (2014) 571 U.S. 277, 286.)
21 Similarly, RFP Nos. 9, 11, 16, and 17 seek documents related to Defendants’
22 “transactions” with persons or businesses located in California. Doing business with a person or
23 company located in the forum state does not prove personal jurisdiction over a defendant.
24 (Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 929.) RFP Nos. 12 and
25 13 seek information and documents relating to contracts or agreements that Defendants has
26 entered into with persons or businesses located in California. Entering into a contract with a
27 person or company located in the forum state does not prove general or specific jurisdiction over
28 a defendant. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 572.)
6
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)
FP 43468771.1
1 Instead of narrowly seeking information regarding jurisdiction, Plaintiff’s requests seek
2 disclosure of each and every agreement, communication, or transaction that Defendants
3 purportedly entered into with individuals or organizations merely because the person or
4 organization is located in California or has at one time conducted business in California, and
5 without regard to whether any business or other conduct would occur in California. By way of
6 example only, Plaintiff’s request would seek disclosure of each and every “Terms of Use”
7 agreement that UCOMMG, UCG, or any of its agents or representatives, have entered into with
8 third party companies that just so happen to be headquartered in California – without regard to
9 whether Defendants purposefully availed themselves of conducting business in California. As
10 Defendants have already expressly explained to Plaintiff, as drafted this request literally seeks
11 all “Terms of Use” agreements for any social media accounts that UCOMMG, UCG, or any of
12 its agents or representatives maintain if the social media companies are based in California.
13 Clearly, these types of agreements have no bearing on the existence of personal jurisdiction.
14 Plaintiff’s requests are replete with overbroad, and frankly, unintelligible requests that
15 are not narrowly tailored to the issue of personal jurisdiction. Defendants’ objections on this basis
16 are meritorious.
17 B. Defendants’ Objections Based on Section 2019.210 Are Meritorious
18 1. Plaintiff Is Statutorily Obligated to Provide Trade Secret Disclosures
19 Section 2019.210 requires an adequate trade secret disclosure before the plaintiff can
20 pursue discovery relating to the trade secret. (Code Civ. Proc. § 2019.210.; Weil & Brown, et al.
21 Cal. Prac. Guide: Civ. Pro. Before Trial 8.60.1 (The Rutter Group 2018 [If the complaint does
22 not describe the trade secret adequately, plaintiff must provide a separate statement containing
23 the requisite description”].)
24 Section 2019.210 is not cause of action specific. In other words, if any claim relates to
25 misappropriation—which all of Plaintiff’s causes of action do—Plaintiff cannot seek discovery
26 without first complying with section 2019.210. (Advanced Modular Sputtering, Inc. v. Superior
27 Court (2005) 132 Cal.App.4th 826, 834-835 [“Where, as here, every cause of action is factually
28 dependent on the misappropriation allegation, discovery can commence only after the allegedly
7
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)
FP 43468771.1
1 misappropriated trade secrets have been identified with reasonable particularity, as required by
2 section 2019.210.”].)
3 Section 2019.210 was enacted to prevent ill-founded claims and prevent “fishing
4 expeditions” into competitors’ business information. (Perlan Therapeutics, Inc. v. Superior
5 Court (2009) 178 Cal.App.4th 1333, 1343.) A trade secret plaintiff cannot satisfy section
6 2019.210 with vague, open-ended, or prolix descriptions of the purported trade secret deliberately
7 designed as a “catch-all” to incorporate anything that the defendant might disclose. (Ibid.)
8 2. Section 2019.210 Continues to Apply Despite Plaintiff’s Removal of Its
9 Misappropriation Cause of Action
10 Plaintiff’s abandonment of its trade secret misappropriation cause of action does not
11 excuse it from complying with its mandatory obligations under section 2019.210. Notably,
12 Plaintiff provided zero authority for its argument that removing the trade secret cause of action
13 means that section 2019.210 does not apply.
14 Plaintiff’s breach of contract and breach of implied covenant of good faith and fair dealing
15 causes of action are explicitly based on trade secret misappropriation allegations. Plaintiff’s SAC
16 alleges that Defendants Lipkin and Bellas breached their employment agreements “including by
17 misappropriating Plaintiff’s trade secrets, disclosing Plaintiff’s trade secrets to third
18 parties and/or using Plaintiff’s trade secrets to directly compete against Plaintiff.” (SAC ¶¶
19 59, 65, 70, 75.)
20 Neothermia Corp. v. Rubicor Med., Inc. (N.D. Cal. 2004) 345 F.Supp.2d 1042, is directly
21 on point. In Neothermia, the District Court held section 2019.210 applied despite the plaintiff’s
22 failure to allege a claim for misappropriation of trade secrets, instead alleging a claim for a breach
23 of a non-disclosure agreement. There, the plaintiff alleged that the defendant “obtained
24 proprietary information in the course of business negotiations and used and revealed the
25 information in [the defendant’s] own patent application.” (Id. at p. 1043.) The district court held
26 that “[s]ection 2019[.210] thus applies not only to theft of trade secrets, but also to disclosure of
27 secrets in violation of a nondisclosure agreement as alleged [by the plaintiff].” (Id at p. 1044.)
28 ///
8
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)
FP 43468771.1
1 The same as Neothermia, Plaintiff alleged breach of contract causes of action based on
2 misappropriation of trade secrets, and section 2019.210 applies in this matter.
3 Moreover, Plaintiff’s other four causes of action for conversion, intentional interference
4 with contractual relations, intentional interference with prospective economic advantage, and
5 unfair competition are no more than thinly veiled misappropriation claims. In Interserve,
6 Inc. v. Fusion Garage PTE, Ltd. (N.D. Cal. April 9, 2010) No. C 09-0512 JW (PVT), 2010 WL
7 1445553, *1, the plaintiff brought claims for misappropriation of business ideas, false
8 advertising, breach of fiduciary duty, and fraud but did not allege a misappropriation of trade
9 secrets claim. The defendant argued that the plaintiff was required to comply with
10 section 2019.210 because it was using its common law claims to prosecute a “thinly-veiled
11 misappropriation of trade secrets claim.” (Ibid.) The district court agreed, applied
12 section 2019.210, and explained section 2019.210’s procedures would serve the same beneficial
13 functions for the causes of action asserted by the plaintiff as they do in trade secrets cases. (Ibid.)
14 Plaintiff cannot dispute that its common law causes of action are not thinly veiled
15 misappropriation claims. Indeed, Plaintiff’s only change to these causes of action from the FAC
16 to the SAC was to change the references to “trade secrets” in these causes of action to references
17 to “confidential information.” Moreover, the employment agreements incorporated by reference
18 in the SAC define “confidential information” the same as trade secrets - as “information and
19 documents that are valuable to Butler America and not generally available to the public.” (SAC
20 ¶¶ 25, 37.) In sum, the “confidential information” at issue here is defined in terms of trade secrets.
21 No amount of repackaging or spin, or unsupported insistence that a new title brings a new
22 meaning, can change that fact. Therefore, section 2019.210 also applies to Plaintiff’s remaining
23 causes of action.
24 3. The Allegations in the SAC and Plaintiff’s Rule 26 Disclosures Are
25 Insufficient to Satisfy Plaintiff’s Obligations Under Section 2019.210
26 Despite Defendants’ numerous requests to identify the trade secrets at issue, Plaintiff
27 recently contended that it has complied with its obligations under section 2019.210 through the
28 allegations in the SAC and its Rule 26 disclosures in federal court. This assertion is at odds with
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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)
FP 43468771.1
1 Plaintiff’s other statements made throughout this litigation. Namely, after providing its Rule 26
2 disclosures, Plaintiff stated that any trade secret information had been redacted from the
3 disclosures, that there were additional trade secrets at issue that were not included in the
4 disclosures, and that Defendants were “free to pursue discovery” to determine the trade secrets
5 at issue. (Evans Decl. ¶¶ 9-10.)
6 Regardless, Plaintiff’s the allegations in Plaintiff’s SAC fail to describe the supposed
7 trade secrets at issue with reasonable particularity, as required by section 2019.210. At no point
8 does the SAC def
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1 Shayna Balch Santiago (SBN 304802) E-Mail: ssantiago@fisherphillips.com 2 FISHER & PHILLIPS LLP 3200 N. Central Avenue, Suite 1550 3 Phoenix, Arizona 85012-2487 Telephone: (602) 281-3400 4 Facsimile: (602) 281-3401 5 Kathryn M. Evans (SBN 323190) E-Mail: kmevans@fisherphillips.com 6 FISHER & PHILLIPS LLP 4747 Executive Drive, Suite 1000 7 San Diego, California 92121 Telephone: (858) 597-9600 8 Facsimile: (858) 597-9601 9 Attorneys for Defendants, UCOMMG, LLC; Unified Communications Group, Inc.; 10 Kenneth W. Newbatt; Bianca Newbatt; Mitchell C. Lipkin; Michael J. Bellas; Jimmie Garrett Baker, Jr.; 11 WesTele Utility Solutions, LLC; and Cynthia Baker 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SANTA BARBARA - ANACAPA DIVISION 14 BUTLER AMERICA, LLC, a Delaware CASE NO.: 20CV03877 limited liability company, [Unlimited Jurisdiction] 15 Plaintiff, Assigned for all purposes to the 16 Honorable Donna D. Geck, Dept. 4 v. 17 DEFENDANTS’ OPPOSITION TO UCOMMG, LLC, a Nevada limited liability PLAINTIFF’S MOTION FOR ORDER 18 company; UNIFIED COMMUNICATIONS COMPELLING FURTHER RESPONSES GROUP, INC., a dissolved Washington TO PLAINTIFF’S REQUESTS FOR 19 corporation; KENNETH W. NEWBATT, an PRODUCTION OF DOCUMENTS individual; BIANCA NEWBATT, an (SET ONE) 20 individual; MITCHELL C. LIPKIN, an individual; MICHAEL J. BELLAS, an [Filed concurrently with Separate Statement 21 individual; JIMMIE GARRETT BAKER, JR., and Declaration of Kathryn M. Evans] an individual; WESTELE UTILITY 22 SOLUTIONS, LLC, a California limited DATE: April 1, 2022 liability company; and DOES 1 through 50, TIME: 10:00 a.m. 23 inclusive, DEPT.: 4 24 Defendants. Complaint Filed: November 20, 2020 Removal Filed: January 4, 2021 25 FAC Filed: April 16, 2021 SAC Filed: December 3, 2021 26 Trial Date: Not Set 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) FP 43468771.1 1 TABLE OF CONTENTS 2 I. INTRODUCTION ............................................................................................................ 1 3 II. RELEVANT FACTS ........................................................................................................1 4 A. Plaintiff Files Its Trade Secret Misappropriation Complaint and Fails to Provide Its Mandatory Trade Secret Disclosures..................................................1 5 B. Defendants File a Demurrer and Motion to Quash After Remand .......................3 6 C. Plaintiff Propounds Overbroad Discovery and Defendants Respond to the Few Discovery Requests Related to Jurisdiction ..................................................3 7 D. Plaintiff Abandons Its Trade Secret Cause of Action ...........................................3 8 E. Plaintiff Failed to Adequately Meet and Confer Prior to Filing This Motion 9 ...............................................................................................................................4 10 III. LEGAL ARGUMENT ......................................................................................................6 11 A. Plaintiff’s Requests Are Incredibly Overbroad and Are Not Aimed at the Issue of Personal Jurisdiction................................................................................6 12 B. Defendants’ Objections Based on Section 2019.210 Are Meritorious .................7 13 1. Plaintiff Is Statutorily Obligated to Provide Trade Secret 14 Disclosures ................................................................................................7 15 2. Section 2019.210 Continues to Apply Despite Plaintiff’s Removal of Its Misappropriation Cause of Action ..................................................8 16 3. The Allegations in the SAC and Plaintiff’s Rule 26 Disclosures 17 Are Insufficient to Satisfy Plaintiff’s Obligations Under Section 2019.210....................................................................................................9 18 3. Plaintiff’s Overbroad Requests Impermissibly Seek Merits 19 Discovery ................................................................................................11 20 C. Plaintiff Failed to Address Defendants’ Other Objections .................................12 21 D. Plaintiff’s Motion Should Be Denied Because Plaintiff Failed to Meet and Confer Regarding the Discovery at Issue ...........................................................13 22 E. Plaintiff’s Motion Is Procedurally Defective ......................................................13 23 1. Plaintiff’s Motion Improperly Combines Two Separate Motions ..........13 24 2. Plaintiff’s Separate Statement Is Defective ............................................14 25 IV. PLAINTIFF’S REQUEST FOR SANCTIONS SHOULD BE DENIED AND 26 INSTEAD SANCTIONS SHOULD BE AWARDED TO DEFENDANTS ..................14 27 V. CONCLUSION ...............................................................................................................15 28 1 TABLE OF CONTENTS FP 43468771.1 1 TABLE OF AUTHORITIES 2 Page(s) 3 Federal Cases 4 Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915 ................................................................................................................ 6 5 Interserve, Inc. v. Fusion Garage PTE, Ltd. 6 (N.D. Cal. April 9, 2010) No. C 09-0512 JW (PVT), 2010 WL 1445553 ............................. 9 7 Neothermia Corp. v. Rubicor Med., Inc. (N.D. Cal. 2004) 345 F.Supp.2d 1042 ................................................................................ 8, 9 8 Roth v. Marquez 9 (9th Cir. 1985) 942 F.2d 617 .................................................................................................. 6 10 Walden v. Fiore (2014) 571 U.S. 277 ................................................................................................................ 6 11 State Cases 12 Advanced Modular Sputtering, Inc. v. Superior Court 13 (2005) 132 Cal.App.4th 826 ................................................................................................... 7 14 Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556 ................................................................................................... 6 15 Board of Trustees v. Superior Court 16 (1981) 119 Cal.App.3d 516 .................................................................................................. 12 17 Brescia v. Angelin (2009) 172 Cal.App.4th 133 ................................................................................................. 14 18 Clement v. Alegre 19 (2009) 177 Cal.App.4th 1277 ............................................................................................... 13 20 DeBlase v. Superior Court (1996) 41 Cal.App.4th 1279 ................................................................................................. 13 21 Mills v. U.S. Bank 22 (2008) 166 Cal.App.4th 871 ................................................................................................. 14 23 Perlan Therapeutics, Inc. v. Superior Court (2009) 178 Cal.App.4th 1333 ..................................................................................... 8, 10, 12 24 Townsend v. Superior Court 25 (1998) 61 Cal.App.4th 1431 ................................................................................................... 1 26 27 28 1 TABLE OF AUTHORITIES FP 43468771.1 1 State Statutes 2 California Code of Civil Procedure § 2016.040 ..................................................................... 4, 13 3 California Code of Civil Procedure § 2019.210 ............................................................................................... 2, 3, 4, 7, 8, 9, 10, 11, 12, 14, 15 4 California Code of Civil Procedure §§ 2023.030(a) ................................................................... 15 5 California Code of Civil Procedure § 2030.300(d) ..................................................................... 14 6 Rules 7 California Rule of Court, Rule 3.1345 .................................................................................. 13, 14 8 Other Authorities 9 Weil & Brown, et al. Cal. Prac. Guide: Civ. Pro. Before Trial 8.60.1 ......................................... 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 TABLE OF AUTHORITIES FP 43468771.1 1 I. INTRODUCTION 2 Plaintiff Butler America, LLC’s Motion to Compel Further Responses to Plaintiff’s 3 Request for Production of Documents, Set One, is procedurally improper and substantively 4 meritless. Plaintiff’s motion is plagued with two significant defects: first, Plaintiff seeks 5 extremely broad categories of documents without any meaningful limitations and therefore seeks 6 merits discovery that is unavailable by statute until Plaintiff identifies the alleged trade secrets 7 and “confidential information” with particularity. Plaintiff’s requests are unrelated to jurisdiction 8 and Plaintiff’s attempt to sidestep mandatory procedural safeguards should not be tolerated. 9 In the limited instances in which Plaintiff did seek information related to jurisdiction, 10 Specially Appearing Defendants UCOMMG, LLC and Unified Communications Group, Inc. 11 (“UCG”) already provided the information. And even in the areas in which the parties differed 12 at the margins, Defendants were willing to supplement their responses to provide discrete 13 additional information. Nonetheless, Plaintiff brought these motions on entirely overbroad 14 discovery requests without complying with its statutory disclosure obligations. 15 Second, Plaintiff failed to meet and confer. Before filing a motion to compel, the moving 16 party must meet and confer with the same “candor, specificity, and support” as its briefing in a 17 discovery motion. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.) Plaintiff’s 18 entire meet and confer effort consisted of sending boilerplate letters repeating the same six 19 sentences for every single discovery request, with no attempt to provide any substantive analysis 20 or discussion as to why each response was not sufficient, how each request is narrowly tailored 21 to demonstrate jurisdiction, or why each request does not overlap with Plaintiff’s allegations that 22 Defendants misappropriated or used Plaintiff’s “confidential information” and trade secrets. 23 Accordingly, Defendants respectfully request that this Court deny Plaintiff’s motion in 24 its entirety and award Defendants their attorneys’ fees needlessly incurred by this motion. 25 II. RELEVANT FACTS 26 A. Plaintiff Files Its Trade Secret Misappropriation Complaint and Fails to 27 Provide Its Mandatory Trade Secret Disclosures 28 On November 20, 2020, Plaintiff filed this lawsuit alleging that Defendants 1 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCS (SET ONE) FP 43468771.1 1 misappropriated Plaintiff’s trade secrets. After timely removing the matter to federal court, 2 defense counsel sent a letter to Plaintiff on March 30, 2021 requesting Plaintiff identify the trade 3 secrets at issue pursuant to Code of Civil Procedure section 2019.210. (Declaration of Kathryn 4 M. Evans (“Evans Decl.) ¶ 2, Ex. A.) Defendants requested Plaintiff provide its disclosure no 5 later than April 6, 2021. (Ibid.) Plaintiff failed to provide the requested information. (Ibid.) 6 On April 5, 2021, defense counsel emailed Plaintiff and again requested Plaintiff provide 7 its trade secret disclosures. (Evans Decl. ¶ 3, Ex. B.) Plaintiff responded the same day and stated 8 that the trade secret disclosures would be provided as part of Plaintiff’s Rule 26 disclosures. 9 (Evans Decl. ¶ 4, Ex. C.) On April 30, 2021, Plaintiff produced its Rule 26 disclosures but failed 10 to include any trade secret disclosures pursuant to section 2019.210. (Evans Decl. ¶ 5, Ex. D.) 11 On May 6, 2021, defense counsel emailed Plaintiff regarding Plaintiff’s failure to include 12 any trade secret designations in its initial disclosures. (Evans Decl. ¶ 6, Ex. E.) Plaintiff responded 13 on May 7, 2021, stating that it would provide a document production that included the alleged 14 trade secrets at issue. (Evans Decl. ¶ 7, Ex. F.) That same day, Plaintiff produced a document 15 production including several internal emails from Plaintiff, some documents from UCG, and two 16 pages that were fully redacted. (Evans Decl. ¶ 8.) 17 On May 10, 2021, the parties had a phone call in which Plaintiff’s counsel indicated that 18 the trade secret information had been redacted from the document production. (Evans Decl. ¶ 9.) 19 Plaintiff’s counsel also indicated there were other trade secrets at issue but did not disclose them. 20 (Ibid.) On May 12, 2021, defense counsel sent Plaintiff’s counsel an email summarizing the May 21 10 phone conversation and stated again that Plaintiff had an affirmative obligation to provide the 22 trade secret disclosures pursuant to section 2019.210. (Evans Decl. ¶ 9, Ex. G.) On May 13, 2021, 23 Plaintiff’s counsel responded to defense counsel’s email and stated that Defendants were free to 24 pursue discovery to determine the alleged trade secrets at issue. (Evans Decl. ¶ 10, Ex. H.) 25 On May 20, June 7, and July 2, 2021, defense counsel once again requested that Plaintiff 26 provide its trade secret disclosures. (Evans Decl. ¶ 11-13, Exs. I-K.) Defense counsel suggested 27 a call with the magistrate judge regarding the dispute. (Ibid.) Plaintiff’s counsel refused to 28 provide any disclosures and did not agree to a call with the magistrate. 2 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) FP 43468771.1 1 B. Defendants File a Demurrer and Motion to Quash After Remand 2 On August 3, 2021, the matter was remanded to state court. (Evans Decl. ¶ 14.) On August 3 20, 2021, defense counsel emailed Plaintiff’s counsel again requesting Plaintiff comply with 4 section 2019.210. (Evans Decl. ¶ 15, Ex. L.) Plaintiff ignored this request. (Ibid.) 5 On September 22, 2021, Defendants filed a demurrer and motion to quash service of 6 summons on the basis that this Court does not have jurisdiction over UCOMMG, UCG, Kenneth 7 Newbatt, Bianca Newbatt, Michael Bellas, and Mitchell Lipkin. (Evans Decl. ¶ 15.) 8 C. Plaintiff Propounds Overbroad Discovery and Defendants Respond to the 9 Few Discovery Requests Related to Jurisdiction 10 On September 27, 2021, Plaintiff served no less than 78 separate discovery requests (27 11 special interrogatories, 9 form interrogatories, and 22 sweeping requests for production) on 12 UCOMMG and UCG. (Evans Decl. ¶ 17, Ex. M.) 13 On October 26, 2021, Defendants sent Plaintiff a letter stating the propounded discovery 14 was improper due to Plaintiff’s failure to provide any section 2019.210 disclosures. (Evans Decl. 15 ¶ 18, Ex. N.) Plaintiff failed to provide any response to this letter. (Ibid.) On October 29, 2021, 16 UCOMMG and UCG served responses to the discovery requests that solely sought information 17 relating to jurisdiction and objections to the remainder of the requests. (Evans Decl. ¶ 19, Ex. O.) 18 D. Plaintiff Abandons Its Trade Secret Cause of Action 19 On the eve of its deadline to oppose Defendants’ demurrer and motion to quash, Plaintiff 20 improperly filed its SAC without seeking leave of court or agreement of Defendants. (Evans 21 Decl. ¶ 20.) The improperly filed SAC does not add any additional factual allegations. Instead, 22 the only differences between the FAC and the SAC is (1) the removal of the trade secrets cause 23 of action; (2) the re-addition of causes of action that had previously been removed in the FAC; 24 and (3) use of the term “confidential information” in lieu of “trade secrets” throughout the SAC. 25 (Ibid.) On December 3, 2021, this Court sustained Defendants’ demurrer to the FAC with leave 26 to amend and deemed the SAC as filed pursuant to that leave to amend. (Evans Decl. ¶ 21.) 27 /// 28 /// 3 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) FP 43468771.1 1 E. Plaintiff Failed to Adequately Meet and Confer Prior to Filing This Motion 2 On December 3, 2021, this Court issued a ruling continuing the Nonresident Defendants’ 3 motion to quash to March 11, 2022 to permit Plaintiff to conduct jurisdictional discovery. (Ibid.) 4 The Court also acknowledged that the scope of the discovery sought by Plaintiff is limited due 5 to the mandatory trade secret disclosures required by section 2019.210 and that eliminating the 6 misappropriation of trade secret claims from the SAC did not necessarily imply that section 7 2019.210 does not apply to the remaining causes of action. (Ibid.) 8 After the Court issued its ruling on December 3, 2021, Plaintiff waited over a week until 9 Saturday, December 11, 2021 at 5:39 p.m. to send a two paragraph “meet-and-confer” email on 10 Defendants’ discovery responses that utterly failed to comply with the meet and confer 11 requirements set forth in Code of Civil Procedure section 2016.040. (Evans Decl. ¶ 22, Ex. P.) 12 Specifically, Plaintiff sought to meet and confer on 24 interrogatories and 23 requests for 13 production addressed to two different defendants, but Plaintiff failed to address any specific 14 discovery responses or objections with which Plaintiff took issue. (Ibid.) 15 Defense counsel responded to Plaintiff’s counsel’s email on Tuesday, December 14, 2021 16 at 1:44 p.m. affirming its intention to meet and confer in good faith and requesting Plaintiff 17 identify the requests upon which it intended to move to compel and the authority upon which 18 Plaintiff contended that Defendants’ responses were improper. (Evans Decl. ¶ 23, Ex. Q.) 19 Defense counsel also invited a phone call to telephonically meet and confer that afternoon. (Ibid.) 20 Plaintiff’s counsel responded, stating that the purpose of the December 11 email was not 21 to “discuss the propriety of the discovery requests” but instead was only to ask whether Plaintiff 22 could have an extension of time to file motions to compel. (Evans Decl. ¶ 24, Ex. R.) Plaintiff 23 then demanded an extension on its motion to compel deadlines by 45 days. (Ibid.) 24 Defense counsel immediately responded that same day and informed Plaintiff’s counsel 25 that a 45-day extension would not leave enough time to complete briefing and for the court to 26 issue a ruling on any discovery disputes prior to the hearing on the motion to quash. (Evans Decl. 27 ¶ 25, Ex. S.) Defense counsel granted a two-week extension on the motion to compel deadlines 28 to allow the parties time to meet and confer. (Ibid.) In response, Plaintiff demanded an additional 4 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) FP 43468771.1 1 five-day extension on the motion to compel deadline. (Evans Decl. ¶ 26, Ex. T.) Defense counsel 2 acquiesced to the extension but expressly reminded Plaintiff’s counsel that the Court instructed 3 the parties to proceed with diligence on the jurisdictional discovery. (Ibid.) 4 Plaintiff then waited an additional week before sending four meet and confer letters at 5 11:53 p.m. on Wednesday, December 22, 2021 (just before the Christmas holiday) and 6 demanding supplemental responses within one business day by close of business on Monday, 7 December 27, 2021, despite knowing that Friday, December 24 was a court holiday. (Evans Decl. 8 ¶ 27, Ex. U.) Again, Plaintiff’s meet and confer letters were utterly deficient and merely copied 9 and pasted the same six sentences as to each and every request at issue rather than providing any 10 substantive analysis or discussion on how the discovery responses were not sufficient, how each 11 request was narrowly tailored to demonstrate jurisdiction, or why the requests did not overlap 12 with Plaintiff’s allegations that Defendants misappropriated or used Plaintiff’s trade secret or 13 “confidential” information. 14 Nonetheless, despite Plaintiff’s failure to properly meet and confer, three business days 15 later on December 29, 2021, defense counsel responded to Plaintiff’s letter. (Evans Decl. ¶ 28, 16 Ex. V.) In the response, UCOMMG and UCG agreed to supplement its objections and responses 17 to several Special Interrogatories to more closely track the objections and responses set forth in 18 the individual defendants’ discovery responses to the same or similar requests (which were 19 served after Defendants had the benefit of the Court’s December 3, 2021 ruling. (Ibid.) As to the 20 remaining discovery requests, Defendants delineated the multiple reasons why the requests were 21 improper and why Defendants objections were appropriate. (Ibid.) UCOMMG and UCG’s 22 supplemental responses were served on March 18. (Evans Decl. ¶ 31, Ex. Y.) 23 In sum, UCOMMG and UCG substantively responded to Form Interrogatories - General 24 Nos. 1.1, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and Special Interrogatories Nos. 2, 13, 14, 17, 18, 22, 23 25 and 24. (Ibid.) UCOMMG’s and UCG’s responses, as well as the declarations in support of the 26 motion to quash, confirm the absence of the resident forum contacts required for personal 27 jurisdiction in the state of California, including, among other things, that UCOMMG is a Nevada 28 corporation with its principal place of business in Washington; UCG is a dissolved Washington 5 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) FP 43468771.1 1 corporation with its principal place of business in Washington; Unified does not have any 2 employees or clients in California; UCOMMG has one employee that performed limited remote 3 work in California and does not have any clients in California; Defendants do not have any offices 4 or places of business in California; Defendants do not maintain bank accounts in California; 5 Defendants have not entered any agreements or contracts with Frontier Communications in 6 California; Defendants did not enter in any business “transactions” with Frontier 7 Communications in California; and Defendants have not engaged in marketing efforts geared 8 specifically towards the generation of business in California. (Ibid.) 9 III. LEGAL ARGUMENT 10 A. Plaintiff’s Requests Are Incredibly Overbroad and Are Not Aimed at the 11 Issue of Personal Jurisdiction 12 Plaintiff’s requests are extremely overbroad and are not narrowly tailored to the issue of 13 general or specific personal jurisdiction. For example, RFP No. 10 seeks all documents that 14 “relate to” all contracts and agreements that Defendants entered into with Frontier 15 Communications. Frontier Communications is based in Connecticut and operates in many states. 16 On its face, this request is not tailored to personal jurisdiction. RFP Nos. 3 and 4 seek all 17 documents “related to” communications between Defendants and Frontier Communications 18 office or locations in California. Communications with an in-state plaintiff is insufficient to 19 establish personal jurisdiction; let alone a party’s communications with a third party. (Roth v. 20 Marquez (9th Cir. 1985) 942 F.2d 617, 6222; Walden v. Fiore (2014) 571 U.S. 277, 286.) 21 Similarly, RFP Nos. 9, 11, 16, and 17 seek documents related to Defendants’ 22 “transactions” with persons or businesses located in California. Doing business with a person or 23 company located in the forum state does not prove personal jurisdiction over a defendant. 24 (Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 929.) RFP Nos. 12 and 25 13 seek information and documents relating to contracts or agreements that Defendants has 26 entered into with persons or businesses located in California. Entering into a contract with a 27 person or company located in the forum state does not prove general or specific jurisdiction over 28 a defendant. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 572.) 6 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) FP 43468771.1 1 Instead of narrowly seeking information regarding jurisdiction, Plaintiff’s requests seek 2 disclosure of each and every agreement, communication, or transaction that Defendants 3 purportedly entered into with individuals or organizations merely because the person or 4 organization is located in California or has at one time conducted business in California, and 5 without regard to whether any business or other conduct would occur in California. By way of 6 example only, Plaintiff’s request would seek disclosure of each and every “Terms of Use” 7 agreement that UCOMMG, UCG, or any of its agents or representatives, have entered into with 8 third party companies that just so happen to be headquartered in California – without regard to 9 whether Defendants purposefully availed themselves of conducting business in California. As 10 Defendants have already expressly explained to Plaintiff, as drafted this request literally seeks 11 all “Terms of Use” agreements for any social media accounts that UCOMMG, UCG, or any of 12 its agents or representatives maintain if the social media companies are based in California. 13 Clearly, these types of agreements have no bearing on the existence of personal jurisdiction. 14 Plaintiff’s requests are replete with overbroad, and frankly, unintelligible requests that 15 are not narrowly tailored to the issue of personal jurisdiction. Defendants’ objections on this basis 16 are meritorious. 17 B. Defendants’ Objections Based on Section 2019.210 Are Meritorious 18 1. Plaintiff Is Statutorily Obligated to Provide Trade Secret Disclosures 19 Section 2019.210 requires an adequate trade secret disclosure before the plaintiff can 20 pursue discovery relating to the trade secret. (Code Civ. Proc. § 2019.210.; Weil & Brown, et al. 21 Cal. Prac. Guide: Civ. Pro. Before Trial 8.60.1 (The Rutter Group 2018 [If the complaint does 22 not describe the trade secret adequately, plaintiff must provide a separate statement containing 23 the requisite description”].) 24 Section 2019.210 is not cause of action specific. In other words, if any claim relates to 25 misappropriation—which all of Plaintiff’s causes of action do—Plaintiff cannot seek discovery 26 without first complying with section 2019.210. (Advanced Modular Sputtering, Inc. v. Superior 27 Court (2005) 132 Cal.App.4th 826, 834-835 [“Where, as here, every cause of action is factually 28 dependent on the misappropriation allegation, discovery can commence only after the allegedly 7 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) FP 43468771.1 1 misappropriated trade secrets have been identified with reasonable particularity, as required by 2 section 2019.210.”].) 3 Section 2019.210 was enacted to prevent ill-founded claims and prevent “fishing 4 expeditions” into competitors’ business information. (Perlan Therapeutics, Inc. v. Superior 5 Court (2009) 178 Cal.App.4th 1333, 1343.) A trade secret plaintiff cannot satisfy section 6 2019.210 with vague, open-ended, or prolix descriptions of the purported trade secret deliberately 7 designed as a “catch-all” to incorporate anything that the defendant might disclose. (Ibid.) 8 2. Section 2019.210 Continues to Apply Despite Plaintiff’s Removal of Its 9 Misappropriation Cause of Action 10 Plaintiff’s abandonment of its trade secret misappropriation cause of action does not 11 excuse it from complying with its mandatory obligations under section 2019.210. Notably, 12 Plaintiff provided zero authority for its argument that removing the trade secret cause of action 13 means that section 2019.210 does not apply. 14 Plaintiff’s breach of contract and breach of implied covenant of good faith and fair dealing 15 causes of action are explicitly based on trade secret misappropriation allegations. Plaintiff’s SAC 16 alleges that Defendants Lipkin and Bellas breached their employment agreements “including by 17 misappropriating Plaintiff’s trade secrets, disclosing Plaintiff’s trade secrets to third 18 parties and/or using Plaintiff’s trade secrets to directly compete against Plaintiff.” (SAC ¶¶ 19 59, 65, 70, 75.) 20 Neothermia Corp. v. Rubicor Med., Inc. (N.D. Cal. 2004) 345 F.Supp.2d 1042, is directly 21 on point. In Neothermia, the District Court held section 2019.210 applied despite the plaintiff’s 22 failure to allege a claim for misappropriation of trade secrets, instead alleging a claim for a breach 23 of a non-disclosure agreement. There, the plaintiff alleged that the defendant “obtained 24 proprietary information in the course of business negotiations and used and revealed the 25 information in [the defendant’s] own patent application.” (Id. at p. 1043.) The district court held 26 that “[s]ection 2019[.210] thus applies not only to theft of trade secrets, but also to disclosure of 27 secrets in violation of a nondisclosure agreement as alleged [by the plaintiff].” (Id at p. 1044.) 28 /// 8 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) FP 43468771.1 1 The same as Neothermia, Plaintiff alleged breach of contract causes of action based on 2 misappropriation of trade secrets, and section 2019.210 applies in this matter. 3 Moreover, Plaintiff’s other four causes of action for conversion, intentional interference 4 with contractual relations, intentional interference with prospective economic advantage, and 5 unfair competition are no more than thinly veiled misappropriation claims. In Interserve, 6 Inc. v. Fusion Garage PTE, Ltd. (N.D. Cal. April 9, 2010) No. C 09-0512 JW (PVT), 2010 WL 7 1445553, *1, the plaintiff brought claims for misappropriation of business ideas, false 8 advertising, breach of fiduciary duty, and fraud but did not allege a misappropriation of trade 9 secrets claim. The defendant argued that the plaintiff was required to comply with 10 section 2019.210 because it was using its common law claims to prosecute a “thinly-veiled 11 misappropriation of trade secrets claim.” (Ibid.) The district court agreed, applied 12 section 2019.210, and explained section 2019.210’s procedures would serve the same beneficial 13 functions for the causes of action asserted by the plaintiff as they do in trade secrets cases. (Ibid.) 14 Plaintiff cannot dispute that its common law causes of action are not thinly veiled 15 misappropriation claims. Indeed, Plaintiff’s only change to these causes of action from the FAC 16 to the SAC was to change the references to “trade secrets” in these causes of action to references 17 to “confidential information.” Moreover, the employment agreements incorporated by reference 18 in the SAC define “confidential information” the same as trade secrets - as “information and 19 documents that are valuable to Butler America and not generally available to the public.” (SAC 20 ¶¶ 25, 37.) In sum, the “confidential information” at issue here is defined in terms of trade secrets. 21 No amount of repackaging or spin, or unsupported insistence that a new title brings a new 22 meaning, can change that fact. Therefore, section 2019.210 also applies to Plaintiff’s remaining 23 causes of action. 24 3. The Allegations in the SAC and Plaintiff’s Rule 26 Disclosures Are 25 Insufficient to Satisfy Plaintiff’s Obligations Under Section 2019.210 26 Despite Defendants’ numerous requests to identify the trade secrets at issue, Plaintiff 27 recently contended that it has complied with its obligations under section 2019.210 through the 28 allegations in the SAC and its Rule 26 disclosures in federal court. This assertion is at odds with 9 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) FP 43468771.1 1 Plaintiff’s other statements made throughout this litigation. Namely, after providing its Rule 26 2 disclosures, Plaintiff stated that any trade secret information had been redacted from the 3 disclosures, that there were additional trade secrets at issue that were not included in the 4 disclosures, and that Defendants were “free to pursue discovery” to determine the trade secrets 5 at issue. (Evans Decl. ¶¶ 9-10.) 6 Regardless, Plaintiff’s the allegations in Plaintiff’s SAC fail to describe the supposed 7 trade secrets at issue with reasonable particularity, as required by section 2019.210. At no point 8 does the SAC def