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
10 GROUP, INC.; KENNETH W. NEWBATT; BIANCA
NEWBATT; MITCHELL C. LIPKIN; MICHAEL J.
11 BELLAS; JIMMIE GARRETT BAKER, JR.; WESTELE
UTILITY SOLUTIONS, LLC; AND CYNTHIA BAKER
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SANTA BARBARA - ANACAPA DIVISION
15 BUTLER AMERICA, LLC, a Delaware CASE NO.: 20CV03877
limited liability company, [Unlimited Jurisdiction]
16
Plaintiff, Assigned for all purposes to the
17 Honorable Donna D. Geck, Dept. 4
v.
18 DECLARATION OF KATHRYN M.
UCOMMG, LLC, a Nevada limited liability EVANS IN SUPPORT OF DEFENDANTS’
19 company; UNIFIED COMMUNICATIONS OPPOSITION TO PLAINTIFF’S MOTION
GROUP, INC., a dissolved Washington FOR ORDER COMPELLING FURTHER
20 corporation; KENNETH W. NEWBATT, an RESPONSES TO PLAINTIFF’S
individual; BIANCA NEWBATT, an REQUESTS FOR PRODUCTION OF
21 individual; MITCHELL C. LIPKIN, an DOCUMENTS (SET ONE)
individual; MICHAEL J. BELLAS, an
22 individual; JIMMIE GARRETT BAKER, JR., DATE: April 1, 2022
an individual; WESTELE UTILITY TIME: 10:00 a.m.
23 SOLUTIONS, LLC, a California limited DEPT.: 4
liability company; and DOES 1 through 50,
24 inclusive, [Filed concurrently with Defendants’
Memorandum in Opposition and Separate
25 Defendants. Statement]
26 Complaint Filed: November 20, 2020
Removal Filed: January 4, 2021
27 FAC Filed: April 16, 2021
Remanded to State Court: August 3, 2021
28 Trial Date: Not Set
EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE)
FP 43534948.1
1 DECLARATION OF KATHRYN M. EVANS
2 I, Kathryn M. Evans, hereby declare and state as follows:
3 1. I am an attorney at law duly licensed to practice before all courts in the State of
4 California. I am an associate with Fisher & Phillips LLP, counsel of record for Defendants
5 UCOMMG, LLC, Unified Communications Group, Inc., Kenneth W. Newbatt, Bianca Newbatt,
6 Mitchell C. Lipkin, Michael J. Bellas, WesTele Utility Solutions, LLC, and Cynthia Baker
7 (collectively “Defendants”). Based on my personal knowledge, I assert the facts set forth herein
8 and, if called as a witness, I could and would competently testify thereto.
9 2. On March 30, 2021, I sent a letter to counsel for Plaintiff Butler America, LLC,
10 requesting Plaintiff identify the trade secrets at issue in this matter pursuant to Code of Civil
11 Procedure section 2019.210. I requested Plaintiff provide its disclosure no later than April 6,
12 2021. Plaintiff failed to provide the requested information. A true and correct copy of my march
13 30, 2021 letter is attached hereto as Exhibit A.
14 3. On April 5, 2021, my colleague Shayna Balch Santiago emailed Plaintiff’s
15 counsel and again requested Plaintiff provide its trade secret disclosures. A true and correct copy
16 of Ms. Santiago’s email correspondence is attached hereto as Exhibit B.
17 4. Plaintiff’s counsel, Cameron Totten, responded to Ms. Santiago’s email on April
18 5, 2021, and stated that the trade secret disclosures would be provided as part of Plaintiff’s Rule
19 26 disclosures. Mr. Totten stated, “my client has no intention of commencing discovery prior
20 to making the required disclosures.” A true and correct copy of Mr. Totten’s email
21 correspondence is attached hereto as Exhibit C.
22 5. On April 30, 2021, Plaintiff produced its Rule 26 disclosures but failed to include
23 any trade secret disclosures pursuant to section 2019.210. A true and correct copy of Plaintiff’s
24 Rule 26 disclosures are attached hereto as Exhibit D.
25 6. On May 6, 2021, I emailed Mr. Totten regarding Plaintiff’s failure to include any
26 trade secret designations in its initial disclosures and suggested addressing the issue with the
27 magistrate judge. A true and correct copy of my email correspondence is attached hereto as
28 Exhibit E.
1
EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE)
FP 43534948.1
1 7. On May 7, 2021, Mr. Totten emailed me and stated Plaintiff would provide a
2 document production that included the alleged trade secret at issue. That same day Plaintiff
3 produced a document production including several internal emails from Plaintiff, some
4 documents from Unified Communications Group, and two pages that were fully redacted. A true
5 and correct copy of Mr. Totten’s email correspondence is attached hereto as Exhibit F.
6 8. On May 7, 2021, Plaintiff Butler America, LLC served a document production
7 that it stated was intended to supplement its Rule 26 disclosures in Federal Court. The document
8 production included 119 pages of emails, form documents, and several fully redacted documents.
9 If requested by the Court, Defendant will produce the document production for an in camera
10 review.
11 9. On May 10, 2021, myself, Ms. Santiago, and Mr. Totten participated in a phone
12 call. During the call, Mr. Totten indicated that the trade secret information had been redacted
13 from the document production. Mr. Totten stated that an unredacted version of the documents
14 would be produced after a protective order was entered. Mr. Totten also indicated there were
15 other trade secrets at issue but did not disclose them. On May 12, 2021, I sent Mr. Totten an
16 email summarizing the May 10 phone conversation and stated again that Plaintiff had an
17 affirmative obligation to provide the trade secret disclosures pursuant to section 2019.210. A true
18 and correct copy of my email correspondence is attached hereto as Exhibit G.
19 10. On May 13, 2021, Mr. Totten responded to my email and stated that Defendants
20 were free to pursue discovery to determine the alleged trade secrets at issue. A true and correct
21 copy of Mr. Totten’s email correspondence is attached hereto as Exhibit H.
22 11. On May 20, 2021, I responded to Mr. Totten’s email, stating that Plaintiff had
23 failed to abide by section 2019.210 despite representing that it would at the time the Rule 26
24 disclosures were exchanged. A true and correct copy of my email correspondence is attached
25 hereto as Exhibit I.
26 12. On June 7, 2021, I emailed Mr. Totten and stated that Defendants would not agree
27 to delay Plaintiff’s disclosures pursuant to section 2019.210. I also provided a draft statement to
28 initiate a discovery dispute with the magistrate judge regarding Plaintiff’s failure to provide its
2
EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE)
FP 43534948.1
1 trade secret disclosures. A true and correct copy of my email correspondence is attached hereto
2 as Exhibit J.
3 13. On July 2, 2021, I emailed Mr. Totten and again requested a call with the
4 magistrate judge to discuss Plaintiff’s failure to provide disclosures pursuant to section 2019.210.
5 A true and correct copy of my email correspondence is attached hereto as Exhibit K.
6 14. The matter was remanded to this Court on August 3, 2021.
7 15. On August 20, 2021, I emailed Plaintiff’s counsel stating that following remand
8 to state court, Plaintiff had still failed to comply with section 2019.210 and requested Plaintiff
9 do so immediately. Plaintiff ignored this request. A true and correct copy of my email
10 correspondence is attached hereto as Exhibit L.
11 16. On September 22, 2021, Defendants filed a demurrer and motion to quash service
12 of summons on the basis that this Court does not have jurisdiction over UCOMMG, UCG,
13 Kenneth Newbatt, Bianca Newbatt, Michael Bellas, and Mitchell Lipkin.
14 17. On September 27, 2021, Plaintiff served no less than 78 separate discovery
15 requests (27 special interrogatories, 9 form interrogatories, and 22 sweeping requests for
16 production) on UCOMMG and UCG. True and correct copies of the discovery requests are
17 attached hereto as Exhibit M.
18 18. On October 26, 2021, I sent Plaintiff a letter stating the propounded discovery was
19 improper due to Plaintiff’s failure to provide any section 2019.210 disclosures. I stated that a
20 discovery dispute would be filed if Plaintiff continued to refuse to identify the trade secret(s) at
21 issue as required by section 2019.210. Plaintiff failed to provide any response to this letter. A true
22 and correct copy of my letter is attached hereto as Exhibit N.
23 19. On October 29, 2021, UCOMMG and Unified served responses to the discovery
24 requests that solely sought information relating to jurisdiction and served objections to the
25 remainder of the requests. True and correct copies of UCOMMG’s and UCG’s discovery
26 responses are attached hereto as Exhibit O.
27 20. On the eve of its deadline to oppose Defendants’ demurrer and motion to quash,
28 Plaintiff improperly filed its SAC without seeking leave of court or agreement of Defendants.
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EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE)
FP 43534948.1
1 The improperly filed SAC does not add any additional factual allegations. Instead, the only
2 differences between the FAC and the SAC is (1) the removal of the trade secrets cause of action;
3 (2) the re-addition of causes of action that had previously been removed in the FAC; and (3) use
4 of the term “confidential information” in lieu of “trade secrets” throughout the SAC.
5 21. On December 3, 2021, this Court sustained Defendants’ demurrer to the FAC
6 with leave to amend and deemed the SAC as filed pursuant to that leave to amend. The Court
7 also issued a ruling continuing the Nonresident Defendants’ motion to quash to March 11, 2022
8 to permit Plaintiff to conduct jurisdictional discovery. The Court set a supplemental briefing
9 schedule requiring Plaintiff to serve its supplemental opposition on or before February 18, 2022
10 and the Nonresident Defendants to file a supplemental reply on or before February 28, 2022. In
11 pertinent part, the Court’s ruling stated: “To the extent that any discovery disputes arise, the
12 parties are expected to proceed with diligence so that jurisdictional discovery is completed
13 to meet the deadlines for the supplemental briefing.” The Court also acknowledged that the
14 scope of the discovery sought by Plaintiff is limited due to the mandatory trade secret disclosures
15 required by Code of Civil Procedure section 2019.210.
16 22. After the Court issued its ruling on December 3, 2021, Plaintiff waited over a
17 week until Saturday, December 11, 2021 to send a two paragraph “meet-and-confer” email on
18 Defendants UCOMMG and Unified Communications Group, Inc.’s discovery responses that
19 utterly failed to comply with the meet and confer requirements set forth in Code of Civil
20 Procedure section 2016.040. Specifically, Plaintiff sought to meet and confer on 24
21 interrogatories and 23 requests for production addressed to two different defendants, but Plaintiff
22 failed to address any specific discovery responses or objections with which Plaintiff took issue.
23 True and correct copies of Plaintiff’s counsel’s December 11, 2021 emails are attached hereto as
24 Exhibit P.
25 23. I responded to Plaintiff’s email on Tuesday, December 14, 2021, at 1:44 p.m.
26 explaining that Plaintiff had failed to comply with the meet and confer requirements set forth in
27 Code of Civil Procedure section 2016.040. I requested Plaintiff identify the requests upon which
28 it intends to move to compel and the authority upon which Plaintiff contends that Defendants’
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EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE)
FP 43534948.1
1 responses were improper. I also invited a phone call to telephonically meet and confer that
2 afternoon. A true and correct copy of my December 14, 2021 email correspondence is attached
3 hereto as Exhibit Q.
4 24. Plaintiff’s counsel responded the same day, stating that the purpose of the
5 December 11 email was not to “discuss the propriety of the discovery requests” but instead was
6 only to ask whether Plaintiff could have an extension of time to file motions to compel. Plaintiff’s
7 counsel then demanded an extension on its motion to compel deadlines by 45 days. At the time,
8 Plaintiff’s deadline to file a motion to compel on UCOMMG and Unified’s discovery responses
9 was only two days later on December 16, 2021. A true and correct copy of Plaintiff’s counsel’s
10 correspondence is attached hereto as Exhibit R.
11 25. I immediately responded and informed Plaintiff’s counsel that a 45-day extension
12 would be until approximately February 1, 2021. I reminded Plaintiff that its supplemental
13 opposition was due by February 18 and a 45-day extension would not leave enough time to
14 complete briefing and for the court to issue a ruling on any discovery disputes related to the
15 jurisdictional discovery. I stated that Defendants would not agree to postpone the supplemental
16 briefing deadlines or the March 11 hearing date on the motion to quash and granted a limited 2-
17 week extension on the motion to compel deadlines to allow the parties time to meet and confer.
18 A true and correct copy of the email exchange between Plaintiff’s counsel and my office is
19 attached hereto as Exhibit S.
20 26. In response, Plaintiff requested an additional five-day extension on the motion to
21 compel deadline. I acquiesced to the extension but expressly reminded Plaintiff’s counsel that
22 the Court instructed the parties to proceed with diligence on the jurisdictional discovery. I also
23 reiterated that Defendants would not agree to continue the briefing schedule or hearing on the
24 motion to quash. A true and correct copy of the email exchange between Plaintiff’s counsel and
25 my office is attached hereto as Exhibit T.
26 27. Plaintiff then waited an additional week before sending four meet and confer
27 letters at 11:53 p.m. on Wednesday, December 22, 2021 and demanding supplemental responses
28 within one business day by close of business on Monday, December 27, 2021, despite knowing
5
EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE)
FP 43534948.1
1 that Friday, December 24 was a court holiday. Again, Plaintiff’s meet and confer letters were
2 utterly deficient and merely copied and pasted the same six sentences as to each and every request
3 at issue rather than providing any substantive analysis or discussion on how the discovery
4 responses were not sufficient, how each request was narrowly tailored to demonstrate
5 jurisdiction, or why the requests did not overlap with Plaintiff’s allegations that Defendants
6 misappropriated or used Plaintiff’s trade secret or “confidential” information. True and correct
7 copies of Plaintiff’s meet-and-confer letters are attached hereto as Exhibit U.
8 28. Three business days later, on December 29, I responded to Plaintiff’s inadequate
9 meet and confer letters. Despite Plaintiff’s failure to properly meet and confer, UCOMMG and
10 Unified agreed to supplement its objections and responses to several Special Interrogatories to
11 more closely track the objections and responses set forth in the individual defendants’ discovery
12 responses to the same or similar requests (which were served after Defendants had the benefit of
13 the Court’s December 3, 2021 ruling which expressly states that Plaintiff’s “eliminat[ion] of trade
14 secret claims from the SAC does not necessarily imply that the limitation of section 2019.210
15 does not apply to the remaining causes of action.”). Specifically, UCOMMG and Unified
16 responded to or agreed to respond to Form Interrogatories - General Nos. 1.1, 3.1, 3.2, 3.3, 3.4,
17 3.5, 3.6, 3.7 and Special Interrogatories Nos. 2, 13, 14, 17, 18, 22, 23 and 24. As to the remaining
18 discovery requests, Defendants delineated the multiple reasons why the requests were improper
19 and why Defendants objections were appropriate A true and correct copy of my meet-and-confer
20 letter is attached hereto as Exhibit V.
21 29. Plaintiff’s counsel sent an additional meet and confer letter on December 30,
22 2021, (again, the day before a Court holiday on December 31, 2021) and demanded a response
23 by the end of the day. A true and correct copy of Plaintiff’s letter is attached hereto as Exhibit W.
24 30. On January 3 and 4, I responded to several emails from Plaintiff’s counsel in
25 which he requested additional extensions of time to file a motion to compel. I continued to
26 explain why Plaintiff’s discovery requests were improper and overbroad. I declined to grant any
27 additional extensions on Plaintiff’s motion to compel deadlines given the Court’s order to act
28 with diligence in order to complete any discovery prior to the supplemental briefing deadline. A
6
EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE)
FP 43534948.1
1 true and correct copy of the email exchange between Plaintiff’s counsel and my office is attached
2 hereto as Exhibit X.
3 31. UCOMMG and UCG served supplemental discovery responses on March 18,
4 2021. True and correct copies of the supplemental discovery responses are attached hereto as
5 Exhibit Y.
6 32. I have spent not less than five hours preparing this opposition and the supporting
7 documents. I expect to spend another three hours reviewing Plaintiff’s reply brief and preparing
8 for and attending the hearing on this matter. My hourly rate is $410. Accordingly, the attorneys’
9 fees incurred by Defendants’ for preparing this motion is not less than $3,280.
10 I declare under penalty of perjury, under the laws of the State of California, that the
11 foregoing is true and correct. Executed on this 18th day of March, 2022, at San Diego, California.
12
13
14
Kathryn M. Evans
15
16
17
18
19
20
21
22
23
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25
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27
28
7
EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE)
FP 43534948.1
EXHIBIT “A”
San Diego
4747 Executive Drive
Suite 1000
San Diego, CA 92121
(858) 597-9600 Tel
(858) 597-9601 Fax
Writer's Direct Dial:
(858) 666-3311
Writer's E-mail:
March 30, 2021 kmevans@fisherphillips.com
Via E-Mail
cameron@cym.law
CHORA YOUNG LLP
Cameron H. Totten
650 Sierra Madre Villa Ave, Suite 304
Pasadena, CA 91107
Re: Butler America, LLC v. UCOMMG, LLC, et al.
Dear Mr. Totten:
As you know, in an action alleging misappropriation of trade secrets under the California
Uniform Trade Secrets Act (“CUTSA”), discovery relating to the trade secret cannot commence
until the party alleging misappropriation identifies the trade secret with reasonable particularity
subject to any orders that may be appropriate. Code of Civil Procedure § 2019.210. Code of
Civil Procedure § 2019.210 is not cause of action specific. In other words, if any claim relates to
a misappropriation of a trade secret—which all of Plaintiff’s causes of action do—Plaintiff cannot
seek discovery without first complying with Code of Civil Procedure § 2019.210. Advanced
Modular Sputtering, Inc. v. Super. Ct. (2005) 132 Cal.App.4th 826, 834. Moreover, the trade
secret identified cannot include broad “catch all” language. Perlen Therapeutics, Inc. v. Super.
Ct. (2009) 178 Cal.App.4th 1333, 1350.
As noted recently by the Ninth Circuit, “[f]ederal courts have applied the state provision in
federal cases”. InteliClear, LLC v. ETC Global Holdings, Inc., 978 F.3d 653, 658 fn. 1 (9th Cir.
2020). Indeed, the Central District has also recently held that the procedures of section 2019.210
apply in federal cases. M/A-Com Technology Solutions, Inc. v. Litrinium, Inc., 2019 WL 4284523,
*1 (C.D. Cal. June 11, 2019). At a minimum, federal district courts in California will require an
identification of trade secrets by the plaintiff as part of a Rule 26 disclosure. Jardin v. DATAllegro,
2011 WL 3299395 (S.D. Cal. July 29, 2011).
Although we have requested disclosure of the factual support for your client’s claims and
identification of the specific trade secrets your client claims were misappropriated, no such
disclosure has been made. Please provide this information no later than April 6, 2021.
Please feel free to reach out to my office if you would like to discuss this matter further.
Best regards,
Kathryn M. Evans
For FISHER & PHILLIPS LLP
Fisher & Phillips LLP
Atlanta • Baltimore • Boston • Charlotte • Chicago • Cleveland • Columbia • Columbus • Dallas • Denver • Fort Lauderdale • Gulfport • Houston
Irvine • Kansas City • Las Vegas • Los Angeles • Louisville • Memphis • New Jersey • New Orleans • New York • Orlando • Philadelphia
Phoenix • Portland • Sacramento • San Diego • San Francisco • Seattle • Tampa • Washington, DC
FP 40196797.1
EXHIBIT “B”
From: Santiago, Shayna Balch
Sent: Monday, April 5, 2021 10:11 AM
To: Cameron Totten
Cc: Armen Manasserian; Evans, Katie; Colwell, Michelle; Morisset, Catharine
Subject: RE: Butler America, LLC v. Unified, et al. - Further Handling
Cameron,
I’m not refusing to have a Rule 26 meeting with you. In fact, I suggested that we schedule one for this week. I presume
you received my out of office assistant message last week – I was actually out of town for a funeral. But I am back in the
office now and am fairly open tomorrow afternoon or Wednesday.
As for the disclosures that we have now repeatedly requested from you, but Plaintiff, for whatever reason, is refusing to
provide, we expect those to be made immediately. I stated below that we expect those disclosures to be made so that
we can make our Rule 26 meeting as productive as possible. We still don’t know what trade secrets you claim my
clients misappropriated. And without knowing this information, it will be difficult, if not impossible, for us to assess
things like case deadlines, electronic discovery issues, and the like during our Rule 26 meeting. It’s not a matter of
making you “jump through hoops.” Instead we expect Plaintiff to comply with its statutory requirements for bringing a
misappropriation of trade secrets claim. Plaintiff’s ongoing refusal to disclose this information is troubling. I sincerely
hope that Plaintiff did its due diligence prior to filing suit and has at least some evidence of trade secret
misappropriation that it is prepared to disclose.
It is our position that fact discovery cannot open until and unless Plaintiff makes complete disclosures and identifies with
reasonable particularity the trade secrets allegedly misappropriated. We have already cited the applicable case law
supporting our position to you.
Best regards,
Shayna
Shayna H. Balch
Partner
Fisher & Phillips LLP
3200 N. Central Avenue | Suite 1550 | Phoenix, AZ 85012
sbalch@fisherphillips.com | O: (602) 281-3406 | C: (623) 451-3420
vCard | Bio | Website On the Front Lines of Workplace Law℠
This message may contain confidential and privileged information. If it has been sent to you in error, please
reply to advise the sender of the error, then immediately delete this message.
1
EXHIBIT “C”
From: Cameron Totten
Sent: Monday, April 5, 2021 1:56 PM
To: Santiago, Shayna Balch
Cc: Armen Manasserian; Evans, Katie; Colwell, Michelle; Morisset, Catharine
Subject: RE: Butler America, LLC v. Unified, et al. - Further Handling
Shayna,
With regard to the Rule 26 meeting, I’m available today and tomorrow at 3:00pm. Please let me know if either of those
work for you. I’m flexible if you want to propose a different time.
During the Rule 26 meeting, we can discuss, among other things, when the parties will produce the Rule 26 disclosures,
which will include the documents and information that you are requesting, and the preparation and filing of the Rule 26
report. The case law that you provided to me appears to allow for the trade secret disclosures to be part of the Rule 26
disclosures. See Jardin v. DATAllegro,
2011 WL 3299395 (S.D. Cal. July 29, 2011). My client has no intention of commencing discovery prior to making the
required disclosures.
Cameron
1
EXHIBIT “D”
1
CHORA YOUNG & MANASSERIAN
2 Paul P. Young (SBN 257571)
Joseph Chora (SBN 284700)
3 Armen Manasserian (SBN 288199)
Cameron H. Totten (SBN 180765)
4
650 Sierra Madre Villa Ave, Suite 304
5 Pasadena, CA 91107
Tel.: (626) 744-1838
6 Fax: (626) 744-3167
Email: cameron@cym.law
7
8 Attorneys for Plaintiff Butler America, LLC
9 UNITED STATES DISTRICT COURT
10 FOR THE CENTRAL DISTRICT OF CALIFORNIA
11
12 BUTLER AMERICA, LLC, a Delaware Case No. 2:21-cv-00041-ODW (AFMx)
limited liability company,
13 [Removed from Santa Barbara Superior
Plaintiff, Court, Case No. 20CV03877]
14
15 v. PLAINTIFF BUTLER AMERICA LLC’S
INITIAL DISCLOSURES
16 UCOMMG, LLC, a Nevada limited liability
company, et al.,
17
18 Defendants.
19
20 Pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure Plaintiff Butler
21 America, LLC (“Butler”) submits the following initial disclosures. Butler reserves all rights to
22 modify, amend, and/or supplement the disclosures made herein as additional evidence and
23 information becomes available.
24
25 ///
26 ///
27
///
28
1
PLAINTIFF BUTLER AMERICA LLC’S INITIAL DISCLOSURES
1 i. The name and, if known, the address and telephone number of each individual likely
2 to have discoverable information—along with the subjects of that information—that
3 the disclosing party may use to support its claims or defenses, unless the use would
4 be solely for impeachment:
5
6
Name Contact
Subject Matter
Information
7
Walt Gorman Counsel of record for Mr. Gorman is believed to have
8 Butler knowledge regarding the nature and
operation of Butler’s business, Butler’s
9 business relationships and the asserted
10 claims and alleged damages
Levi Smylie Counsel of record for Mr. Smylie is believed to have
11 Butler knowledge regarding the nature and
operation of Butler’s business, Butler’s
12
business relationships and the asserted
13 claims and alleged damages
Mike Whitley Counsel of record for Mr. Whitley is believed to have
14 Butler knowledge regarding the nature and
operation of Butler’s business, Butler’s
15
business relationships and the asserted
16 claims and alleged damages
Ben Horton Counsel of record for Mr. Horton is believed to have
17 Butler knowledge regarding the nature and
operation of Butler’s business, Butler’s
18
business relationships and the asserted
19 claims and alleged damages
Tyler Longo Counsel of record for Mr. Longo is believed to have
20 Butler knowledge regarding the nature and
operation of Butler’s business, Butler’s
21
business relationships and the asserted
22 claims and alleged damages
Chelsea Jeffreys Counsel of record for Mr. Jeffreys is believed to have
23 Butler knowledge regarding the nature and
operation of Butler’s business, Butler’s
24
business relationships and the asserted
25 claims and alleged damages
26
Butler’s investigation is ongoing. By indicating the general subject matter of information
27
these individuals may possess, Butler does not make any concessions, agreements, admissions,
28
2
PLAINTIFF BUTLER AMERICA LLC’S INITIAL DISCLOSURES
or waivers of any ultimate determination of relevance or admissibility of particular information
1
2 for any purpose or the scope of any information known by any individual, nor does Butler waive
3 the attorney-client privilege, the work product doctrine or any other privilege, doctrine or
4
immunity. Butler is in no way limiting its right to call any individual listed to testify concerning
5
other subjects.
6
7 ii. A copy—or a description by category and location—of all documents, electronically
8 stored information, and tangible things that the disclosing party has in its possession,
9 custody, or control and may use to support its claims or defenses, unless the use
10 would be solely for impeachment:
11
Butler may use the following categories of documents, without limitation, in support of
12
13
its claims:
14 • Relevant documents related to services provided by employees, including
15 Defendant(s), with respect to any Butler project during the relevant time period;
16 and
17
• Other documents and/or communications of Butler or between Butler, on the one
18
hand, and one or more of the Defendants, on the other hand.
19
20 By describing the category of documents above, Butler does not concede that all
21 documents in such categories are properly subject to discovery. These documents are in the
22 possession, custody or control of Butler or undersigned counsel and will be served by May 7,
23 2021. Butler’s investigation is ongoing. Additionally, Butler may rely upon any documents
24
produced by any party or third party in this litigation, including any personnel files or other
25
employment records concerning Defendants.
26
///
27
///
28
///
3
PLAINTIFF BUTLER AMERICA LLC’S INITIAL DISCLOSURES
1 iii. a computation of each category of damages claimed by the disclosing party—who
2 must also make available for inspection and copying as under Rule 34 the documents
3
or other evidentiary material, unless privileged or protected from disclosure, on
4
which each computation is based, including materials bearing on the nature and
5
extent of injuries suffered:
6
7
An exact computation of Butler’s damages has not been made at this time. However, it
8 is Butler’s belief that the following are the damages suffered by Butler:
9 • Actual damages as related to the techs – Estimated at $1,560,000.00. Will be
10 supplemented.
11 o Butler estimates that projects involving a total of 30 to 40 techs were
12 tortiously taken by the Defendants. Gross sales per tech per week was
13 $2,500 on average. Butler’s gross margin on sales was on average 20% or
14 $500 per tech per week.
15 o Example calculation: 40 techs times $500 in gross margin times 78 weeks
16 = $1,560,000.00.
17 • Actual damages as related to Lipkin’s royalty of the total (gross) billings on all
18
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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 10 GROUP, INC.; KENNETH W. NEWBATT; BIANCA NEWBATT; MITCHELL C. LIPKIN; MICHAEL J. 11 BELLAS; JIMMIE GARRETT BAKER, JR.; WESTELE UTILITY SOLUTIONS, LLC; AND CYNTHIA BAKER 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SANTA BARBARA - ANACAPA DIVISION 15 BUTLER AMERICA, LLC, a Delaware CASE NO.: 20CV03877 limited liability company, [Unlimited Jurisdiction] 16 Plaintiff, Assigned for all purposes to the 17 Honorable Donna D. Geck, Dept. 4 v. 18 DECLARATION OF KATHRYN M. UCOMMG, LLC, a Nevada limited liability EVANS IN SUPPORT OF DEFENDANTS’ 19 company; UNIFIED COMMUNICATIONS OPPOSITION TO PLAINTIFF’S MOTION GROUP, INC., a dissolved Washington FOR ORDER COMPELLING FURTHER 20 corporation; KENNETH W. NEWBATT, an RESPONSES TO PLAINTIFF’S individual; BIANCA NEWBATT, an REQUESTS FOR PRODUCTION OF 21 individual; MITCHELL C. LIPKIN, an DOCUMENTS (SET ONE) individual; MICHAEL J. BELLAS, an 22 individual; JIMMIE GARRETT BAKER, JR., DATE: April 1, 2022 an individual; WESTELE UTILITY TIME: 10:00 a.m. 23 SOLUTIONS, LLC, a California limited DEPT.: 4 liability company; and DOES 1 through 50, 24 inclusive, [Filed concurrently with Defendants’ Memorandum in Opposition and Separate 25 Defendants. Statement] 26 Complaint Filed: November 20, 2020 Removal Filed: January 4, 2021 27 FAC Filed: April 16, 2021 Remanded to State Court: August 3, 2021 28 Trial Date: Not Set EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE) FP 43534948.1 1 DECLARATION OF KATHRYN M. EVANS 2 I, Kathryn M. Evans, hereby declare and state as follows: 3 1. I am an attorney at law duly licensed to practice before all courts in the State of 4 California. I am an associate with Fisher & Phillips LLP, counsel of record for Defendants 5 UCOMMG, LLC, Unified Communications Group, Inc., Kenneth W. Newbatt, Bianca Newbatt, 6 Mitchell C. Lipkin, Michael J. Bellas, WesTele Utility Solutions, LLC, and Cynthia Baker 7 (collectively “Defendants”). Based on my personal knowledge, I assert the facts set forth herein 8 and, if called as a witness, I could and would competently testify thereto. 9 2. On March 30, 2021, I sent a letter to counsel for Plaintiff Butler America, LLC, 10 requesting Plaintiff identify the trade secrets at issue in this matter pursuant to Code of Civil 11 Procedure section 2019.210. I requested Plaintiff provide its disclosure no later than April 6, 12 2021. Plaintiff failed to provide the requested information. A true and correct copy of my march 13 30, 2021 letter is attached hereto as Exhibit A. 14 3. On April 5, 2021, my colleague Shayna Balch Santiago emailed Plaintiff’s 15 counsel and again requested Plaintiff provide its trade secret disclosures. A true and correct copy 16 of Ms. Santiago’s email correspondence is attached hereto as Exhibit B. 17 4. Plaintiff’s counsel, Cameron Totten, responded to Ms. Santiago’s email on April 18 5, 2021, and stated that the trade secret disclosures would be provided as part of Plaintiff’s Rule 19 26 disclosures. Mr. Totten stated, “my client has no intention of commencing discovery prior 20 to making the required disclosures.” A true and correct copy of Mr. Totten’s email 21 correspondence is attached hereto as Exhibit C. 22 5. On April 30, 2021, Plaintiff produced its Rule 26 disclosures but failed to include 23 any trade secret disclosures pursuant to section 2019.210. A true and correct copy of Plaintiff’s 24 Rule 26 disclosures are attached hereto as Exhibit D. 25 6. On May 6, 2021, I emailed Mr. Totten regarding Plaintiff’s failure to include any 26 trade secret designations in its initial disclosures and suggested addressing the issue with the 27 magistrate judge. A true and correct copy of my email correspondence is attached hereto as 28 Exhibit E. 1 EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE) FP 43534948.1 1 7. On May 7, 2021, Mr. Totten emailed me and stated Plaintiff would provide a 2 document production that included the alleged trade secret at issue. That same day Plaintiff 3 produced a document production including several internal emails from Plaintiff, some 4 documents from Unified Communications Group, and two pages that were fully redacted. A true 5 and correct copy of Mr. Totten’s email correspondence is attached hereto as Exhibit F. 6 8. On May 7, 2021, Plaintiff Butler America, LLC served a document production 7 that it stated was intended to supplement its Rule 26 disclosures in Federal Court. The document 8 production included 119 pages of emails, form documents, and several fully redacted documents. 9 If requested by the Court, Defendant will produce the document production for an in camera 10 review. 11 9. On May 10, 2021, myself, Ms. Santiago, and Mr. Totten participated in a phone 12 call. During the call, Mr. Totten indicated that the trade secret information had been redacted 13 from the document production. Mr. Totten stated that an unredacted version of the documents 14 would be produced after a protective order was entered. Mr. Totten also indicated there were 15 other trade secrets at issue but did not disclose them. On May 12, 2021, I sent Mr. Totten an 16 email summarizing the May 10 phone conversation and stated again that Plaintiff had an 17 affirmative obligation to provide the trade secret disclosures pursuant to section 2019.210. A true 18 and correct copy of my email correspondence is attached hereto as Exhibit G. 19 10. On May 13, 2021, Mr. Totten responded to my email and stated that Defendants 20 were free to pursue discovery to determine the alleged trade secrets at issue. A true and correct 21 copy of Mr. Totten’s email correspondence is attached hereto as Exhibit H. 22 11. On May 20, 2021, I responded to Mr. Totten’s email, stating that Plaintiff had 23 failed to abide by section 2019.210 despite representing that it would at the time the Rule 26 24 disclosures were exchanged. A true and correct copy of my email correspondence is attached 25 hereto as Exhibit I. 26 12. On June 7, 2021, I emailed Mr. Totten and stated that Defendants would not agree 27 to delay Plaintiff’s disclosures pursuant to section 2019.210. I also provided a draft statement to 28 initiate a discovery dispute with the magistrate judge regarding Plaintiff’s failure to provide its 2 EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE) FP 43534948.1 1 trade secret disclosures. A true and correct copy of my email correspondence is attached hereto 2 as Exhibit J. 3 13. On July 2, 2021, I emailed Mr. Totten and again requested a call with the 4 magistrate judge to discuss Plaintiff’s failure to provide disclosures pursuant to section 2019.210. 5 A true and correct copy of my email correspondence is attached hereto as Exhibit K. 6 14. The matter was remanded to this Court on August 3, 2021. 7 15. On August 20, 2021, I emailed Plaintiff’s counsel stating that following remand 8 to state court, Plaintiff had still failed to comply with section 2019.210 and requested Plaintiff 9 do so immediately. Plaintiff ignored this request. A true and correct copy of my email 10 correspondence is attached hereto as Exhibit L. 11 16. On September 22, 2021, Defendants filed a demurrer and motion to quash service 12 of summons on the basis that this Court does not have jurisdiction over UCOMMG, UCG, 13 Kenneth Newbatt, Bianca Newbatt, Michael Bellas, and Mitchell Lipkin. 14 17. On September 27, 2021, Plaintiff served no less than 78 separate discovery 15 requests (27 special interrogatories, 9 form interrogatories, and 22 sweeping requests for 16 production) on UCOMMG and UCG. True and correct copies of the discovery requests are 17 attached hereto as Exhibit M. 18 18. On October 26, 2021, I sent Plaintiff a letter stating the propounded discovery was 19 improper due to Plaintiff’s failure to provide any section 2019.210 disclosures. I stated that a 20 discovery dispute would be filed if Plaintiff continued to refuse to identify the trade secret(s) at 21 issue as required by section 2019.210. Plaintiff failed to provide any response to this letter. A true 22 and correct copy of my letter is attached hereto as Exhibit N. 23 19. On October 29, 2021, UCOMMG and Unified served responses to the discovery 24 requests that solely sought information relating to jurisdiction and served objections to the 25 remainder of the requests. True and correct copies of UCOMMG’s and UCG’s discovery 26 responses are attached hereto as Exhibit O. 27 20. On the eve of its deadline to oppose Defendants’ demurrer and motion to quash, 28 Plaintiff improperly filed its SAC without seeking leave of court or agreement of Defendants. 3 EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE) FP 43534948.1 1 The improperly filed SAC does not add any additional factual allegations. Instead, the only 2 differences between the FAC and the SAC is (1) the removal of the trade secrets cause of action; 3 (2) the re-addition of causes of action that had previously been removed in the FAC; and (3) use 4 of the term “confidential information” in lieu of “trade secrets” throughout the SAC. 5 21. On December 3, 2021, this Court sustained Defendants’ demurrer to the FAC 6 with leave to amend and deemed the SAC as filed pursuant to that leave to amend. The Court 7 also issued a ruling continuing the Nonresident Defendants’ motion to quash to March 11, 2022 8 to permit Plaintiff to conduct jurisdictional discovery. The Court set a supplemental briefing 9 schedule requiring Plaintiff to serve its supplemental opposition on or before February 18, 2022 10 and the Nonresident Defendants to file a supplemental reply on or before February 28, 2022. In 11 pertinent part, the Court’s ruling stated: “To the extent that any discovery disputes arise, the 12 parties are expected to proceed with diligence so that jurisdictional discovery is completed 13 to meet the deadlines for the supplemental briefing.” The Court also acknowledged that the 14 scope of the discovery sought by Plaintiff is limited due to the mandatory trade secret disclosures 15 required by Code of Civil Procedure section 2019.210. 16 22. After the Court issued its ruling on December 3, 2021, Plaintiff waited over a 17 week until Saturday, December 11, 2021 to send a two paragraph “meet-and-confer” email on 18 Defendants UCOMMG and Unified Communications Group, Inc.’s discovery responses that 19 utterly failed to comply with the meet and confer requirements set forth in Code of Civil 20 Procedure section 2016.040. Specifically, Plaintiff sought to meet and confer on 24 21 interrogatories and 23 requests for production addressed to two different defendants, but Plaintiff 22 failed to address any specific discovery responses or objections with which Plaintiff took issue. 23 True and correct copies of Plaintiff’s counsel’s December 11, 2021 emails are attached hereto as 24 Exhibit P. 25 23. I responded to Plaintiff’s email on Tuesday, December 14, 2021, at 1:44 p.m. 26 explaining that Plaintiff had failed to comply with the meet and confer requirements set forth in 27 Code of Civil Procedure section 2016.040. I requested Plaintiff identify the requests upon which 28 it intends to move to compel and the authority upon which Plaintiff contends that Defendants’ 4 EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE) FP 43534948.1 1 responses were improper. I also invited a phone call to telephonically meet and confer that 2 afternoon. A true and correct copy of my December 14, 2021 email correspondence is attached 3 hereto as Exhibit Q. 4 24. Plaintiff’s counsel responded the same day, stating that the purpose of the 5 December 11 email was not to “discuss the propriety of the discovery requests” but instead was 6 only to ask whether Plaintiff could have an extension of time to file motions to compel. Plaintiff’s 7 counsel then demanded an extension on its motion to compel deadlines by 45 days. At the time, 8 Plaintiff’s deadline to file a motion to compel on UCOMMG and Unified’s discovery responses 9 was only two days later on December 16, 2021. A true and correct copy of Plaintiff’s counsel’s 10 correspondence is attached hereto as Exhibit R. 11 25. I immediately responded and informed Plaintiff’s counsel that a 45-day extension 12 would be until approximately February 1, 2021. I reminded Plaintiff that its supplemental 13 opposition was due by February 18 and a 45-day extension would not leave enough time to 14 complete briefing and for the court to issue a ruling on any discovery disputes related to the 15 jurisdictional discovery. I stated that Defendants would not agree to postpone the supplemental 16 briefing deadlines or the March 11 hearing date on the motion to quash and granted a limited 2- 17 week extension on the motion to compel deadlines to allow the parties time to meet and confer. 18 A true and correct copy of the email exchange between Plaintiff’s counsel and my office is 19 attached hereto as Exhibit S. 20 26. In response, Plaintiff requested an additional five-day extension on the motion to 21 compel deadline. I acquiesced to the extension but expressly reminded Plaintiff’s counsel that 22 the Court instructed the parties to proceed with diligence on the jurisdictional discovery. I also 23 reiterated that Defendants would not agree to continue the briefing schedule or hearing on the 24 motion to quash. A true and correct copy of the email exchange between Plaintiff’s counsel and 25 my office is attached hereto as Exhibit T. 26 27. Plaintiff then waited an additional week before sending four meet and confer 27 letters at 11:53 p.m. on Wednesday, December 22, 2021 and demanding supplemental responses 28 within one business day by close of business on Monday, December 27, 2021, despite knowing 5 EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE) FP 43534948.1 1 that Friday, December 24 was a court holiday. Again, Plaintiff’s meet and confer letters were 2 utterly deficient and merely copied and pasted the same six sentences as to each and every request 3 at issue rather than providing any substantive analysis or discussion on how the discovery 4 responses were not sufficient, how each request was narrowly tailored to demonstrate 5 jurisdiction, or why the requests did not overlap with Plaintiff’s allegations that Defendants 6 misappropriated or used Plaintiff’s trade secret or “confidential” information. True and correct 7 copies of Plaintiff’s meet-and-confer letters are attached hereto as Exhibit U. 8 28. Three business days later, on December 29, I responded to Plaintiff’s inadequate 9 meet and confer letters. Despite Plaintiff’s failure to properly meet and confer, UCOMMG and 10 Unified agreed to supplement its objections and responses to several Special Interrogatories to 11 more closely track the objections and responses set forth in the individual defendants’ discovery 12 responses to the same or similar requests (which were served after Defendants had the benefit of 13 the Court’s December 3, 2021 ruling which expressly states that Plaintiff’s “eliminat[ion] of trade 14 secret claims from the SAC does not necessarily imply that the limitation of section 2019.210 15 does not apply to the remaining causes of action.”). Specifically, UCOMMG and Unified 16 responded to or agreed to respond to Form Interrogatories - General Nos. 1.1, 3.1, 3.2, 3.3, 3.4, 17 3.5, 3.6, 3.7 and Special Interrogatories Nos. 2, 13, 14, 17, 18, 22, 23 and 24. As to the remaining 18 discovery requests, Defendants delineated the multiple reasons why the requests were improper 19 and why Defendants objections were appropriate A true and correct copy of my meet-and-confer 20 letter is attached hereto as Exhibit V. 21 29. Plaintiff’s counsel sent an additional meet and confer letter on December 30, 22 2021, (again, the day before a Court holiday on December 31, 2021) and demanded a response 23 by the end of the day. A true and correct copy of Plaintiff’s letter is attached hereto as Exhibit W. 24 30. On January 3 and 4, I responded to several emails from Plaintiff’s counsel in 25 which he requested additional extensions of time to file a motion to compel. I continued to 26 explain why Plaintiff’s discovery requests were improper and overbroad. I declined to grant any 27 additional extensions on Plaintiff’s motion to compel deadlines given the Court’s order to act 28 with diligence in order to complete any discovery prior to the supplemental briefing deadline. A 6 EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE) FP 43534948.1 1 true and correct copy of the email exchange between Plaintiff’s counsel and my office is attached 2 hereto as Exhibit X. 3 31. UCOMMG and UCG served supplemental discovery responses on March 18, 4 2021. True and correct copies of the supplemental discovery responses are attached hereto as 5 Exhibit Y. 6 32. I have spent not less than five hours preparing this opposition and the supporting 7 documents. I expect to spend another three hours reviewing Plaintiff’s reply brief and preparing 8 for and attending the hearing on this matter. My hourly rate is $410. Accordingly, the attorneys’ 9 fees incurred by Defendants’ for preparing this motion is not less than $3,280. 10 I declare under penalty of perjury, under the laws of the State of California, that the 11 foregoing is true and correct. Executed on this 18th day of March, 2022, at San Diego, California. 12 13 14 Kathryn M. Evans 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 EVANS DECLARATION IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCS (SET ONE) FP 43534948.1 EXHIBIT “A” San Diego 4747 Executive Drive Suite 1000 San Diego, CA 92121 (858) 597-9600 Tel (858) 597-9601 Fax Writer's Direct Dial: (858) 666-3311 Writer's E-mail: March 30, 2021 kmevans@fisherphillips.com Via E-Mail cameron@cym.law CHORA YOUNG LLP Cameron H. Totten 650 Sierra Madre Villa Ave, Suite 304 Pasadena, CA 91107 Re: Butler America, LLC v. UCOMMG, LLC, et al. Dear Mr. Totten: As you know, in an action alleging misappropriation of trade secrets under the California Uniform Trade Secrets Act (“CUTSA”), discovery relating to the trade secret cannot commence until the party alleging misappropriation identifies the trade secret with reasonable particularity subject to any orders that may be appropriate. Code of Civil Procedure § 2019.210. Code of Civil Procedure § 2019.210 is not cause of action specific. In other words, if any claim relates to a misappropriation of a trade secret—which all of Plaintiff’s causes of action do—Plaintiff cannot seek discovery without first complying with Code of Civil Procedure § 2019.210. Advanced Modular Sputtering, Inc. v. Super. Ct. (2005) 132 Cal.App.4th 826, 834. Moreover, the trade secret identified cannot include broad “catch all” language. Perlen Therapeutics, Inc. v. Super. Ct. (2009) 178 Cal.App.4th 1333, 1350. As noted recently by the Ninth Circuit, “[f]ederal courts have applied the state provision in federal cases”. InteliClear, LLC v. ETC Global Holdings, Inc., 978 F.3d 653, 658 fn. 1 (9th Cir. 2020). Indeed, the Central District has also recently held that the procedures of section 2019.210 apply in federal cases. M/A-Com Technology Solutions, Inc. v. Litrinium, Inc., 2019 WL 4284523, *1 (C.D. Cal. June 11, 2019). At a minimum, federal district courts in California will require an identification of trade secrets by the plaintiff as part of a Rule 26 disclosure. Jardin v. DATAllegro, 2011 WL 3299395 (S.D. Cal. July 29, 2011). Although we have requested disclosure of the factual support for your client’s claims and identification of the specific trade secrets your client claims were misappropriated, no such disclosure has been made. Please provide this information no later than April 6, 2021. Please feel free to reach out to my office if you would like to discuss this matter further. Best regards, Kathryn M. Evans For FISHER & PHILLIPS LLP Fisher & Phillips LLP Atlanta • Baltimore • Boston • Charlotte • Chicago • Cleveland • Columbia • Columbus • Dallas • Denver • Fort Lauderdale • Gulfport • Houston Irvine • Kansas City • Las Vegas • Los Angeles • Louisville • Memphis • New Jersey • New Orleans • New York • Orlando • Philadelphia Phoenix • Portland • Sacramento • San Diego • San Francisco • Seattle • Tampa • Washington, DC FP 40196797.1 EXHIBIT “B” From: Santiago, Shayna Balch Sent: Monday, April 5, 2021 10:11 AM To: Cameron Totten Cc: Armen Manasserian; Evans, Katie; Colwell, Michelle; Morisset, Catharine Subject: RE: Butler America, LLC v. Unified, et al. - Further Handling Cameron, I’m not refusing to have a Rule 26 meeting with you. In fact, I suggested that we schedule one for this week. I presume you received my out of office assistant message last week – I was actually out of town for a funeral. But I am back in the office now and am fairly open tomorrow afternoon or Wednesday. As for the disclosures that we have now repeatedly requested from you, but Plaintiff, for whatever reason, is refusing to provide, we expect those to be made immediately. I stated below that we expect those disclosures to be made so that we can make our Rule 26 meeting as productive as possible. We still don’t know what trade secrets you claim my clients misappropriated. And without knowing this information, it will be difficult, if not impossible, for us to assess things like case deadlines, electronic discovery issues, and the like during our Rule 26 meeting. It’s not a matter of making you “jump through hoops.” Instead we expect Plaintiff to comply with its statutory requirements for bringing a misappropriation of trade secrets claim. Plaintiff’s ongoing refusal to disclose this information is troubling. I sincerely hope that Plaintiff did its due diligence prior to filing suit and has at least some evidence of trade secret misappropriation that it is prepared to disclose. It is our position that fact discovery cannot open until and unless Plaintiff makes complete disclosures and identifies with reasonable particularity the trade secrets allegedly misappropriated. We have already cited the applicable case law supporting our position to you. Best regards, Shayna Shayna H. Balch Partner Fisher & Phillips LLP 3200 N. Central Avenue | Suite 1550 | Phoenix, AZ 85012 sbalch@fisherphillips.com | O: (602) 281-3406 | C: (623) 451-3420 vCard | Bio | Website On the Front Lines of Workplace Law℠ This message may contain confidential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error, then immediately delete this message. 1 EXHIBIT “C” From: Cameron Totten Sent: Monday, April 5, 2021 1:56 PM To: Santiago, Shayna Balch Cc: Armen Manasserian; Evans, Katie; Colwell, Michelle; Morisset, Catharine Subject: RE: Butler America, LLC v. Unified, et al. - Further Handling Shayna, With regard to the Rule 26 meeting, I’m available today and tomorrow at 3:00pm. Please let me know if either of those work for you. I’m flexible if you want to propose a different time. During the Rule 26 meeting, we can discuss, among other things, when the parties will produce the Rule 26 disclosures, which will include the documents and information that you are requesting, and the preparation and filing of the Rule 26 report. The case law that you provided to me appears to allow for the trade secret disclosures to be part of the Rule 26 disclosures. See Jardin v. DATAllegro, 2011 WL 3299395 (S.D. Cal. July 29, 2011). My client has no intention of commencing discovery prior to making the required disclosures. Cameron 1 EXHIBIT “D” 1 CHORA YOUNG & MANASSERIAN 2 Paul P. Young (SBN 257571) Joseph Chora (SBN 284700) 3 Armen Manasserian (SBN 288199) Cameron H. Totten (SBN 180765) 4 650 Sierra Madre Villa Ave, Suite 304 5 Pasadena, CA 91107 Tel.: (626) 744-1838 6 Fax: (626) 744-3167 Email: cameron@cym.law 7 8 Attorneys for Plaintiff Butler America, LLC 9 UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 BUTLER AMERICA, LLC, a Delaware Case No. 2:21-cv-00041-ODW (AFMx) limited liability company, 13 [Removed from Santa Barbara Superior Plaintiff, Court, Case No. 20CV03877] 14 15 v. PLAINTIFF BUTLER AMERICA LLC’S INITIAL DISCLOSURES 16 UCOMMG, LLC, a Nevada limited liability company, et al., 17 18 Defendants. 19 20 Pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure Plaintiff Butler 21 America, LLC (“Butler”) submits the following initial disclosures. Butler reserves all rights to 22 modify, amend, and/or supplement the disclosures made herein as additional evidence and 23 information becomes available. 24 25 /// 26 /// 27 /// 28 1 PLAINTIFF BUTLER AMERICA LLC’S INITIAL DISCLOSURES 1 i. The name and, if known, the address and telephone number of each individual likely 2 to have discoverable information—along with the subjects of that information—that 3 the disclosing party may use to support its claims or defenses, unless the use would 4 be solely for impeachment: 5 6 Name Contact Subject Matter Information 7 Walt Gorman Counsel of record for Mr. Gorman is believed to have 8 Butler knowledge regarding the nature and operation of Butler’s business, Butler’s 9 business relationships and the asserted 10 claims and alleged damages Levi Smylie Counsel of record for Mr. Smylie is believed to have 11 Butler knowledge regarding the nature and operation of Butler’s business, Butler’s 12 business relationships and the asserted 13 claims and alleged damages Mike Whitley Counsel of record for Mr. Whitley is believed to have 14 Butler knowledge regarding the nature and operation of Butler’s business, Butler’s 15 business relationships and the asserted 16 claims and alleged damages Ben Horton Counsel of record for Mr. Horton is believed to have 17 Butler knowledge regarding the nature and operation of Butler’s business, Butler’s 18 business relationships and the asserted 19 claims and alleged damages Tyler Longo Counsel of record for Mr. Longo is believed to have 20 Butler knowledge regarding the nature and operation of Butler’s business, Butler’s 21 business relationships and the asserted 22 claims and alleged damages Chelsea Jeffreys Counsel of record for Mr. Jeffreys is believed to have 23 Butler knowledge regarding the nature and operation of Butler’s business, Butler’s 24 business relationships and the asserted 25 claims and alleged damages 26 Butler’s investigation is ongoing. By indicating the general subject matter of information 27 these individuals may possess, Butler does not make any concessions, agreements, admissions, 28 2 PLAINTIFF BUTLER AMERICA LLC’S INITIAL DISCLOSURES or waivers of any ultimate determination of relevance or admissibility of particular information 1 2 for any purpose or the scope of any information known by any individual, nor does Butler waive 3 the attorney-client privilege, the work product doctrine or any other privilege, doctrine or 4 immunity. Butler is in no way limiting its right to call any individual listed to testify concerning 5 other subjects. 6 7 ii. A copy—or a description by category and location—of all documents, electronically 8 stored information, and tangible things that the disclosing party has in its possession, 9 custody, or control and may use to support its claims or defenses, unless the use 10 would be solely for impeachment: 11 Butler may use the following categories of documents, without limitation, in support of 12 13 its claims: 14 • Relevant documents related to services provided by employees, including 15 Defendant(s), with respect to any Butler project during the relevant time period; 16 and 17 • Other documents and/or communications of Butler or between Butler, on the one 18 hand, and one or more of the Defendants, on the other hand. 19 20 By describing the category of documents above, Butler does not concede that all 21 documents in such categories are properly subject to discovery. These documents are in the 22 possession, custody or control of Butler or undersigned counsel and will be served by May 7, 23 2021. Butler’s investigation is ongoing. Additionally, Butler may rely upon any documents 24 produced by any party or third party in this litigation, including any personnel files or other 25 employment records concerning Defendants. 26 /// 27 /// 28 /// 3 PLAINTIFF BUTLER AMERICA LLC’S INITIAL DISCLOSURES 1 iii. a computation of each category of damages claimed by the disclosing party—who 2 must also make available for inspection and copying as under Rule 34 the documents 3 or other evidentiary material, unless privileged or protected from disclosure, on 4 which each computation is based, including materials bearing on the nature and 5 extent of injuries suffered: 6 7 An exact computation of Butler’s damages has not been made at this time. However, it 8 is Butler’s belief that the following are the damages suffered by Butler: 9 • Actual damages as related to the techs – Estimated at $1,560,000.00. Will be 10 supplemented. 11 o Butler estimates that projects involving a total of 30 to 40 techs were 12 tortiously taken by the Defendants. Gross sales per tech per week was 13 $2,500 on average. Butler’s gross margin on sales was on average 20% or 14 $500 per tech per week. 15 o Example calculation: 40 techs times $500 in gross margin times 78 weeks 16 = $1,560,000.00. 17 • Actual damages as related to Lipkin’s royalty of the total (gross) billings on all 18 tem