Asia Economic Institute et al v. Xcentric Ventures LLC et al

Filing 101

EX PARTE APPLICATION for Order for Temporary Restraining Order for Preservation of Electronically Stored Information (ESI), EX PARTE APPLICATION for Protective Order for Preventing Interference with Witnesses filed by Plaintiffs Asia Economic Institute, Iliana Llaneras, Raymond Mobrez. (Attachments: # 1 Exhibit 1 to Declaration of Lisa J. Borodkin (April 22, 2010 email), # 2 Exhibit 2 to Declaration of Lisa J. Borodkin (April 27, 2010 email), # 3 Exhibit 3 to Declaration of Lisa J. Borodkin (April 27, 2010 email), # 4 Exhibit 4 to Declaration of Lisa J. Borodkin (Rule 26(f) Report), # 5 Exhibit 5 to Declaration of Lisa J. Borodkin (March 2009 Google results), # 6 Exhibit 6 to Declaration of Lisa J. Borodkin (August 2010 Google results), # 7 Exhibit 7 to Declaration of Lisa J. Borodkin (May 28, 2010 email), # 8 Exhibit 8 to Declaration of Lisa J. Borodkin (May 29, 2010 email), # 9 Exhibit 9 to Declaration of Lisa J. Borodkin (May 30, 2010 email), # 10 Exhibit 10 to Declaration of Lisa J. Borodkin (May 30, 2010 email), # 11 Exhibit 11 to Declaration of Lisa J. Borodkin (Plaintiffs' RFPs), # 12 Exhibit 12 to Declaration of Lisa J. Borodki (July 14, 2010 email), # 13 Exhibit 13 to Declaration of Lisa J. Borodkin (Defendants' Responses to RFPs), # 14 Exhibit 14 to Declaration of Lisa J. Borodkin (July 30, 2010 emails), # 15 Exhibit 15 to Declaration of Lisa J. Borodkin (Declaration of Kenton Hutcherson), # 16 Exhibit 16 to Declaration of Lisa J. Borodkin (Demand letter fron Defendants))(Borodkin, Lisa)

Gmasla Economic Institute et al v. Xcentric Ventures LLC et al A i i - AEI v. Xcentric -- Defendants FIRST Set of Discovery Requests

https://mail.google.com/mail/?ui=2&ik=0d9198f21b&viDo=. t&q=Att. 3 ... ew c p101 esi%2

Lisa Borodkin <[e-mail]>

AEI v. Xcentric -- Defendants FIRST Set of Discovery Requests
David Gingras <[e-mail]> T ue, Apr 27, 2010 at 10:39 AM Reply-To: [e-mail] To: Lisa Borodkin <[e-mail]> Cc: Daniel Blackert <[e-mail]>, Maria Crimi Speth <[e-mail]> Lisa,

Preservation of electronic information is not an issue. Xcentric keeps all of its records pretty much indefinitely, so there's no issue with respect to putting a hold on something specific because we always put a hold on everything.

In terms of your reference to the Sedona conference, I'm not sure what your point is. Among other things, the principle of this non-binding proclamation is to promote "open and forthright information sharing . . . to facilitate cooperative, collaborative, transparent discovery." Thus far, I have acted consistently with this view while you have not. I hope that position changes.

In terms of discovery, Judge Wilson made it very clear that our Rule 26(f) duties had been satisfied and that discovery was immediately open. If you disagree, let me know and perhaps we can contact the court and seek clarification as to whether the judge intended to set a quick trial without permitting any time for discovery. I don't think that's what the judge intended. Thus, I think the latter part of Rule 26(d)(1) (allowing discovery to begin when authorized by court order) is applicable. Again, I note that you were the one who requested and received an expedited trial over my objection, so there is no basis for your position that I am somehow acting too promptly since you have given me no other choice but to do so. Because the trial is barely more than 90 days away, and because you have refused to answer discovery on an expedited basis, it is critical that we move as quickly as possible unless you're willing to agree to move the trial back at least six months or so.

Finally, I am concerned about what appears to be an emerging pattern of you directly misrepresenting my words.

Your email seems to suggest that I told you I would agree to limit discovery in some way. Here's what you said:

Based on your email of 4/22 and our response, we also thought we were in agreement that "Based on the
court's order bifurcating this matter, Defendants believe that discovery should be initially focused on the matters set for trial in August." Because the Court bifurcated damages as well as defamation and your representations, that is why we thought we were in agreement that damages would not be a part of discovery. Despite this, numerous categories of your document requests seek information that are not part of the bifurcated trial.

If you go back and review my email to you from only a few days ago, you will note that I did NOT agree or suggest that "damages would not be part of discovery." In fact, I very clearly stated the opposite; here's exactly what I said

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Gmail - AEI v. Xcentric -- Defendants FIRST Set of Discovery Requests

https://mail.google.com/mail/?ui=2&ik=0d9198f21b&view =pt&q=esi%2...

on this issue:

"Based on the court's order bifurcating this matter, Defendants believe that discovery should be initially focused on the matters set for trial in August. However, unless the court enters an order staying discovery as to any other matters or unless Plaintiffs agree to a stay, Defendants intend to pursue discovery as to each issue in the case."

I do not know how I could have been any clearer and I do not know how you could erroneously conclude that I somehow agreed to exclude damages from discovery. I said no such thing.

Indeed, after reviewing the law and the claims in your complaint, it was my conclusion that it makes no sense to limit discovery to only the RICO issues or to exclude any of the mandatory elements of RICO including damages. First of all, as I have already stated, damages are a mandatory element of a RICO claim, so unless you are prepared to introduce evidence of damages, there is no basis for the court to have a trial on the other elements of that claim because without damages, you have no RICO claim.

As for the remaining claims, unless you're willing to immediately dismiss all of the non-RICO claims, Xcentric has the right to perform discovery as to those claims and to seek summary judgment as to those claims under Rule 56, which is what I intend to do. Allowing a groundless case or groundless claims to tie up the resources of the court longer than necessary is inappropriate, so let's just conduct some quick discovery to establish whether your client's claims have merit. If they do, you should be ready, willing, and eager to demonstrate this to me without delay.

David Gingras, Esq. General Counsel Xcentric Ventures, LLC http://w ww .ripoffreport.com/ [e-mail]

PO BOX 310, Tempe, AZ 85280 Tel.: [phone] Fax: [phone] From: Lisa Borodkin [mailto:[e-mail]] Sent: Tuesday, April 27, 2010 10:05 AM
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