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

Filing 178

DECLARATION of David Gingras In Support Of Defendants' Opposition To MOTION for Leave to Under Rule 56(f) to Take Discovery and Continue Determination of Defendants' SUmmary Judgment Motion MOTION for Leave to Under Rule 56(f) to Take Discovery and Continue Determination of Defendants' SUmmary Judgment Motion MOTION for Leave to Under Rule 56(f) to Take Discovery and Continue Determination of Defendants' SUmmary Judgment Motion 173 filed by Defendants Edward Magedson, Xcentric Ventures LLC. (Gingras, David)

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

Doc. 178

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

David S. Gingras, CSB #218793 Gingras Law Office, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 Tel.: [phone] Fax: [phone] [e-mail] Maria Crimi Speth, (Admitted Pro Hac Vice) Jaburg & Wilk, P.C. 3200 N. Central Ave., Suite 2000 Phoenix, AZ 85012 Tel: [phone] Fax: [phone] [e-mail] Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, David S. Gingras declare as follows: 1. My name is David Gingras. I am a United States citizen, a resident of the vs. XCENTRIC VENTURES, LLC, et al., Defendants. Hearing Date: Nov. 29, 2010 Time: 1:30 PM Courtroom: 6 (Hon. Stephen Wilson) Plaintiffs, AFFIDAVIT OF DAVID GINGRAS ASIA ECONOMIC INSTITUTE, LLC, et al., Case No: 2:10-cv-01360-SVW-PJW

State of Arizona, am over the age of 18 years, and if called to testify in court or other proceeding I could and would give the following testimony which is based upon my own personal knowledge unless otherwise stated. 2. I am an attorney licensed to practice law in the States of Arizona and

California, I am an active member in good standing with the State Bars of Arizona and AFFIDAVIT OF DAVID GINGRAS
CV10-01360 SVW
Dockets.Justia.com

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

California and I am admitted to practice and in good standing with the United States District Court for the District of Arizona and the United States District Court for the Northern, Central, and Eastern Districts of California. 3. Since July 2009 I have been employed as General Counsel for Plaintiff

Xcentric Ventures, LLC. In my capacity as counsel for Xcentric Ventures I have been involved in the litigation of this action since its inception. I have possession of

Xcentric's files relating to this case, and I am personally familiar with the contents thereof. 4. On the morning of October 22, 2010, I contacted Plaintiffs' counsel Lisa

Borodkin by phone to discuss the issue of scheduling a deposition of James Rogers whom I am personally familiar with as the former assistant of Ed Magedson. I contacted Ms. Borodkin to discuss the possibility of scheduling an immediate deposition of Mr. Rogers because I recently became aware that Mr. Rogers was involved in discussions with Ms. Borodkin and others, offering to supply them with information about the Ripoff Report website in exchange for money and/or other consideration. 5. Based on my knowledge of Mr. Rogers and my familiarity with previous

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statements he had made including a sworn statement given on October 20, 2010, it was my belief that he had no information that was relevant to any part of this lawsuit. Of course, I did not expect Ms. Borodkin to simply accept my word on this. For that reason, I told Ms. Borodkin on the phone that I anticipated that she might attempt to file a lastminute Rule 56(f) motion asking for leave to depose Mr. Rogers not because he had any relevant information, but solely because Plaintiffs wanted to obtain a continuance of the Nov. 1, 2010 hearing on Defendants' Motion for Summary Judgment. Ms. Borodkin acknowledged her intent to bring a Rule 56(f) motion relating to Mr. Rogers. 6. In an effort to avoid any further delay of the disposition of this case, I told

Ms. Borodkin on the phone that although I did not believe she was entitled to relief under Rule 56(f), I was willing to agree to the immediate deposition of Mr. Rogers at any time and at any place. I am aware that Mr. Rogers resides in Mesa, Arizona and I would 2 AFFIDAVIT OF DAVID GINGRAS CV10-01360 SVW

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

normally have insisted that his deposition occur here in Phoenix for that reason. However, at the time of my conversation with Ms. Borodkin on October 22, I was aware that Plaintiffs had purchased an airline ticket for Mr. Rogers to travel to Los Angeles the following day (Saturday, October 23) to meet privately with Plaintiffs. For that reason, although I told Ms. Borodkin that I would prefer to have the deposition in Phoenix, I also explained to her that the choice of location was entirely up to her and that I would travel to Los Angeles the following day or any other day of her choosing during the next week as necessary to complete the deposition. 7. I never told Ms. Borodkin that she should "fly to Phoenix the next day" to

take Mr. Rogers's deposition. On the contrary, I specifically explained to Ms. Borodkin on the phone (as I later confirmed in writing) that I was placing no restrictions whatsoever on either the time or the place of the deposition because, frankly, I did not want Ms. Borodkin to have any excuse for failing to complete the deposition before the next hearing on Nov. 1, 2010. 8. Following my phone conversation with Ms. Borodkin, I sent her an email

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summarizing our discussion about Mr. Rogers. Attached hereto as Exhibit A is a true and correct copy of that email which I sent on October 22, 2010 at 12:26 PM. I am certain that Ms. Borodkin received this email because I received a response from her about 30 minutes later. A copy of Ms. Borodkin's response is also included as part of Exhibit A. 9. Attached hereto as Exhibit B is a true and correct copy of a sworn

statement given by James Rogers on October 20, 2010. 10. Attached hereto as Exhibit C is a true and correct copy of an email I

received from Ms. Borodkin on June 4, 2010 relating to the scheduling of the deposition of Ben Smith. Prior to this email, Ms. Borodkin informed me that she wanted to take Mr. Smith's deposition. I had no objection to that request and I made efforts to determine Ms. Smith's availability until I received Ms. Borodkin's email indicating that she no intended to "hold off on deposing Ben Smith." 3 AFFIDAVIT OF DAVID GINGRAS CV10-01360 SVW

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

11.

Since June 2010, Plaintiffs have never re-raised the issue of taking Mr.

Smith's deposition until they filed their current (second) Rule 56(f) motion.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. EXECUTED ON: November 8th 2010. ______________________________________ DAVID GINGRAS

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

CERTIFICATE OF SERVICE

I hereby certify that on November 8, 2010 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mr. Daniel F. Blackert, Esq. Ms. Lisa J. Borodkin, Esq. Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Attorneys for Plaintiffs

And a courtesy copy of the foregoing delivered to: Honorable Stephen V. Wilson U.S. District Judge

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Exhibit A

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David Gingras
From: Sent: To: Cc : Lisa, This email is to follow-up and document our phone conversation this morning. As I told you on the phone, it has come to our attention that you have spoken with James Rogers who was previously employed as Ed Magedson's personal assistant and who, until recently, also was involved in a personal intimate relationship with Ed. I know that you talked with James on the phone and that you have made plans to fly him out to LA tomorrow morning (Saturday, Oct. 23rd) so that he can meet with you and share whatever information he may have. As we discussed, obviously I cannot prevent you from conducting an informal ex parte interview of James even though discovery is stayed. At the same time, if you interview or depose James without me or Maria being present, then whatever information or testimony he provides to you will not be admissible in our case per Fed. R. Civ. P. 32(a)(1). Based on this, I told you that it was my belief that you intend to interview James tomorrow and then on Nov. 1st (or some other date) ask the court for relief under Rule 56(f) so that you can formalize his testimony in a deposition, thereby delaying the ruling on our summary judgment motion. You basically confirmed that this was your intent, though you indicated that you intend to file an ex parte request under Rule 56(f) prior to Nov. 1st. With due respect, I note that you have made similar statements several times in the past without actually filing such a motion. As I explained to you on the phone, Xcentric believes that James has no relevant or useful information that would affect the pending MSJ in our case. As such, we believe that your proposed Rule 56(f) motion is groundless and would do nothing but needlessly prolong the inevitable disposition of this action. Having said this and although we believe that your proposed Rule 56(f) motion is untimely and otherwise improper, we are nevertheless willing to obviate your 56(f) motion by agreeing to immediately allow you to take James's deposition. We are willing to do this even though discovery is stayed and even though we believe the deposition will not reveal any relevant information. We are willing to do this because we want to "cut to the chase" here. By allowing you to obtain James's testimony now, you can confirm for yourself that he has nothing relevant or helpful to offer you and in that case there will be no need for you to seek Rule 56(f) relief (at least as to James), nor will it be necessary to move the Nov. 1st hearing date which, as you know, is already a continuation of the last trip we made to LA. As such, my proposal would avoid any further prejudice that Xcentric will incur as a result of further prolonging the disposition of this case such as would occur if your untimely Rule 56(f) motion was granted. At the same time, my proposal would give you the exact same relief you would get under Rule 56(f) notwithstanding my position that you are not entitled to that relief. Again ­ to be clear ­ my offer is to allow you to take the deposition of James Rogers immediately at any time prior to Nov. 1st and at any place (though I told you I felt that Arizona was the far more appropriate place for the deposition to occur). In response, you indicated to me that you did NOT want to accept my offer at this time, but you also stated that you would speak to your client and let me know if the offer is acceptable. I responded by explaining to you that if you are not willing to agree to this offer, then I intend to provide this email to the court as part of my opposition to any request you make under Rule 56(f) or any other request that would result in moving the existing Nov. 1st hearing date. If you do not accept this offer, then David Gingras [[e-mail]] Friday, October 22, 2010 12:26 PM '[e-mail]'; '[e-mail]' '[e-mail]'; 'Adam S. Kunz'

Subject: AEI v. Xcentric -- Phone call follow-up re: James Rogers

11/ 3/ 2010

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it will be my position that your Rule 56(f) motion should be denied as simply unnecessary (in addition to several other substantive objections defendants have to such a motion). Please note that my offer remains open as long as necessary, provided that you allow yourself enough time to complete the deposition and make any motions you want which relate to the testimony you obtain from James prior to Nov. 1st. In other words, if you believe that James will give you testimony that you need to provide to the court as part of the issues being discussed on Nov. 1st (which you should already know given your prior phone conversations with James which I understand began several weeks ago), then I expect you will take his deposition as soon as you possibly can and that you will not seek to move the Nov. 1st hearing based on the need for additional time. Of course if you do accept this offer, I would appreciate no less than 24 hours notice so that I can make sure that both James and I are available. If any part of this email does not accurately reflect our discussion, please let me know immediately. David Gingras, Esq. General Counsel Xcentric Ventures, LLC http://www.ripoffreport.com/ [e-mail]

PO BOX 310, Tempe, AZ 85280 Tel.: [phone] Fax: [phone]

11/ 3/ 2010

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David Gingras
From: Sent: To: Cc : Lisa Borodkin [[e-mail]] Friday, October 22, 2010 1:08 PM [e-mail] [e-mail]; [e-mail]; Adam S. Kunz

Subject: Re: AEI v. Xcentric -- Phone call follow-up re: James Rogers

Hi David, Thanks for the offer. I will run it by the clients. I don't agree that I declined the offer out of hand, but I did seek to clarify how this procedure would operate given your pending anti-SLAPP motion, which stays discovery. I will proceed on the assumption that you would stipulate to an exception to the automatic stay of discovery effected by your filing of the Anti-SLAPP motion should we take you up on this offer. If that is not correct, please let me know how you plan to address that issue. One small correction to your email we will move for Rule 56(f) relief as soon as possible. I believe under the case law such a motion is generally timely any time before the hearing. I am not intending to wait until November 1 to file such a motion. However, if the interview identifies other discoverable evidence, including witnesses and documents, that may go into the motion. You stated you will be in federal court in LA on November 22 on another matter. Therefore, we will notice the Rule 56(f) for November 22, and move to consolidate the hearing on your other motions with the November 22 hearing. This also confirms that I gave you notice of the ex parte application to shorten time on hearing of a motion to consolidate hearings. Lisa On Fri, Oct 22, 2010 at 12:25 PM, David Gingras <[e-mail]> wrote:
Lisa,

This email is to follow-up and document our phone conversation this morning.

As I told you on the phone, it has come to our attention that you have spoken with James Rogers who was previously employed as Ed Magedson's personal assistant and who, until recently, also was involved in a personal intimate relationship with Ed. I know that you talked with James on the phone and that you have made plans to fly him out to LA tomorrow morning (Saturday, Oct. 23rd) so that he can meet with you and share whatever information he may have.

As we discussed, obviously I cannot prevent you from conducting an informal ex parte interview of

11/ 3/ 2010

Page 2 of 3

James even though discovery is stayed. At the same time, if you interview or depose James without me or Maria being present, then whatever information or testimony he provides to you will not be admissible in our case per Fed. R. Civ. P. 32(a)(1).

Based on this, I told you that it was my belief that you intend to interview James tomorrow and then on Nov. 1st (or some other date) ask the court for relief under Rule 56(f) so that you can formalize his testimony in a deposition, thereby delaying the ruling on our summary judgment motion. You basically confirmed that this was your intent, though you indicated that you intend to file an ex parte request under Rule 56(f) prior to Nov. 1st. With due respect, I note that you have made similar statements several times in the past without actually filing such a motion.

As I explained to you on the phone, Xcentric believes that James has no relevant or useful information that would affect the pending MSJ in our case. As such, we believe that your proposed Rule 56(f) motion is groundless and would do nothing but needlessly prolong the inevitable disposition of this action.

Having said this and although we believe that your proposed Rule 56(f) motion is untimely and otherwise improper, we are nevertheless willing to obviate your 56(f) motion by agreeing to immediately allow you to take James's deposition. We are willing to do this even though discovery is stayed and even though we believe the deposition will not reveal any relevant information.

We are willing to do this because we want to "cut to the chase" here. By allowing you to obtain James's testimony now, you can confirm for yourself that he has nothing relevant or helpful to offer you and in that case there will be no need for you to seek Rule 56(f) relief (at least as to James), nor will it be necessary to move the Nov. 1st hearing date which, as you know, is already a continuation of the last trip we made to LA. As such, my proposal would avoid any further prejudice that Xcentric will incur as a result of further prolonging the disposition of this case such as would occur if your untimely Rule 56(f) motion was granted. At the same time, my proposal would give you the exact same relief you would get under Rule 56(f) notwithstanding my position that you are not entitled to that relief.

Again ­ to be clear ­ my offer is to allow you to take the deposition of James Rogers immediately at any time prior to Nov. 1st and at any place (though I told you I felt that Arizona was the far more appropriate place for the deposition to occur).

In response, you indicated to me that you did NOT want to accept my offer at this time, but you also stated that you would speak to your client and let me know if the offer is acceptable.

I responded by explaining to you that if you are not willing to agree to this offer, then I intend to provide this email to the court as part of my opposition to any request you make under Rule 56(f) or any other request that would result in moving the existing Nov. 1st hearing date. If you do not accept this offer, then it will be my position that your Rule 56(f) motion should be denied as simply unnecessary (in addition to several other substantive objections defendants have to such a motion).

11/ 3/ 2010

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Please note that my offer remains open as long as necessary, provided that you allow yourself enough time to complete the deposition and make any motions you want which relate to the testimony you obtain from James prior to Nov. 1st. In other words, if you believe that James will give you testimony that you need to provide to the court as part of the issues being discussed on Nov. 1st (which you should already know given your prior phone conversations with James which I understand began several weeks ago), then I expect you will take his deposition as soon as you possibly can and that you will not seek to move the Nov. 1st hearing based on the need for additional time. Of course if you do accept this offer, I would appreciate no less than 24 hours notice so that I can make sure that both James and I are available.

If any part of this email does not accurately reflect our discussion, please let me know immediately.

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

PO BOX 310, Tempe, AZ 85280 Tel.: [phone] Fax: [phone]

-Lisa J. Borodkin [e-mail] 323-337-7933

11/ 3/ 2010

Exhibit B

Exhibit C

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David Gingras
From: Sent: To: Cc : Subject: Lisa Borodkin [[e-mail]] Friday, June 04, 2010 5:02 PM [e-mail]; Maria Crimi Speth Daniel Blackert Re: AEI v. Xcentric - ED's Depo

Attachments: Magedson Depo Subpoena.pdf

Hi David and Maria, We'd like to schedule the deposition of Edward Magedson for Tuesday, June 8 at 9:30 a.m. Please find attached a subpoena for a few documents for Mr. Magedson to bring with him. At this time we're going to hold off on deposing Ben Smith. Thanks very much for offering to make him available. Lisa On Thu, Jun 3, 2010 at 3:06 PM, David Gingras <[e-mail]> wrote: Lisa, Per our phone conversation a few minutes ago, I spoke to Ed and he can be available for his individual depo either Tuesday, June 8 or Wednesday, June 9. However, I have not yet been able to reach Ben Smith to see what his schedule is like, and my impression from yesterday was that you wanted to take Ben and Ed on the same day, if possible. Anyway, I left a voicemail for Ben and will let you know when I hear back from him. Right now, I am hoping that he's free and that we can get this done on Tuesday which I think you said was your preferred date. David Gingras, Esq. General Counsel Xcentric Ventures, LLC http://www.ripoffreport.com/ [e-mail] http://www.ripoffreport.com/ PO BOX 310, Tempe, AZ 85280 Tel.: [phone] Fax: [phone] -----Original Message----From: Lisa Borodkin [mailto:[e-mail]] Sent: Thursday, June 03, 2010 9:49 AM To: [e-mail]; Maria Crimi Speth Cc: Daniel Blackert; [e-mail]; [e-mail] Subject: AEI v. Xcentric

11/ 8/ 2010