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

Filing 179

DECLARATION of James Rogers 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. 179

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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, JAMES ROGERS, declare as follows: 1. My name is James Rogers. I am a resident of the State of Arizona, am over vs. XCENTRIC VENTURES, LLC, et al., Defendants. Hearing Date: Nov. 29, 2010 Time: 1:30 PM Courtroom: 6 (Hon. Stephen Wilson) Plaintiffs, AFFIDAVIT OF JAMES ROGERS ASIA ECONOMIC INSTITUTE, LLC, et al., Case No: 2:10-cv-01360-SVW-PJW

the age of 18 years, and if called to testify in court I could and would truthfully testify to the following information based upon my own personal knowledge. 2. In the interest of full disclosure, I am a convicted felon and I have spent

approximately seven years in the Arizona Department of Corrections for various reasons. AFFIDAVIT OF JAMES ROGERS
CV10-01360 SVW
Dockets.Justia.com

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3.

I have known Ed Magedson for many years and he has helped me to try and As part of this, Ed employed me to act as his personal assistant.

turn my life around.

This employment lasted approximately a year and ended in early October 2010. During part of this time, I was also involved in a personal relationship with Mr. Magedson. 4. During my employment, I entered into a confidentiality/non-disclosure

agreement with Xcentric, a true and correct copy of which is attached hereto as Exhibit A. In this agreement, I agreed not to disclose Xcentric's trade secrets or other

confidential business information. 5. In the past, I have struggled with an addiction to various drugs. Prior to the

end of my employment with Xcentric, I experienced a lapse in judgment and I began using again, specifically crystal methamphetamine. 6. During this relapse, I needed money to fuel my habit. To accomplish that

goal, I reached out to an individual named John F. Brewington who had contacted me about three months ago looking for information about Ripoff Report. Based on my relationship with Mr. Magedson, I knew that Mr. Brewington was a person with a strong hatred for the Ripoff Report website and for Mr. Magedson. Mr. Brewington is a

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convicted felon who is the subject of several negative reports on the Ripoff Report website. I am aware that Mr. Brewington has expressed a deep hatred for Mr. Magedson and a desire to exact revenge on Mr. Magedson for allowing these reports to be posted. 7. Because I knew that Mr. Brewington hated Mr. Magedson and had

undertaken extreme measures in his failed efforts to "bring down the Ripoff Report", I believed he might be willing to provide me with money in exchange for information about Mr. Magedson and/or Xcentric. For that reason, I contacted Mr. Brewington and offered to sell him information about Mr. Magedson in exchange for money. Eventually, I gave a recorded statement to Mr. Brewington in exchange for $2,600 in cash. 8. When I gave the recorded statement to Mr. Brewington, I was high on

drugs and he knew this. Because of the impact the drugs had on me, I was willing to say things to Mr. Brewington that I felt he wanted to hear even though they were not true. 2 AFFIDAVIT OF JAMES ROGERS CV10-01360 SVW

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During part of our conversation that was not recorded, Mr. Brewington told me that he was not concerned about obtaining the truth, he said was only concerned about getting information that he could use to hurt Mr. Magedson. 9. In addition to talking with Mr. Brewington, I also had several telephone

conversations in late September 2010 with an individual named Shawn Richeson. Like Mr. Brewington, Mr. Richeson is a convicted felon who is the subject of several negative reports on the Ripoff Report site and who has gone to extreme lengths attempting, unsuccessfully, to "bring down" the Ripoff Report and Mr. Magedson. I am aware that Xcentric has filed a lawsuit against Mr. Richeson for his actions which is currently pending in the United States District Court in Arizona. 10. In early October 2010, I received a call from a woman who identified

herself as Lisa Borodkin. I understand that Ms. Borodkin is a lawyer who represents the plaintiffs in this case. I am also informed that Mr. Borodkin obtained my contact

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information from either Mr. Brewington or Mr. Richeson, who she is working with and with whom she has shared information about Xcentric and Mr. Magedson. 11. Ms. Borodkin told me that she was extremely interested in getting any

information I had about the Ripoff Report, Xcentric, and Mr. Magedson. When she first contacted me, I explained to her that I had signed a non-disclosure agreement as an employee of Xcentric and that this agreement might prevent me from helping her voluntarily. However, because I was so interested in obtaining money to buy drugs at that time, I implied to Ms. Borodkin that I might be willing to provide her with information if there was something in it for me. Ms. Borodkin clearly understood what I meant by this. 12. At first, Ms. Borodkin made it clear that she could not and would not give

me any money in exchange for my testimony about Xcentric. However, shortly after making that statement during one phone call, she called me back and began suggesting that if I flew to Los Angeles to meet with her, she could "pay my expenses", "make me very comfortable", and perhaps she could also pay me for testimony as an "expert 3 AFFIDAVIT OF JAMES ROGERS CV10-01360 SVW

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witness". Based on these promises, I told Ms. Borodkin that I would be willing to come to LA on Saturday, October 23, 2010 to provide her with a statement. In response, Ms. Borodkin asked me if I would "load up a suitcase with documents" which I understood to mean Xcentric's confidential business documents which were the subject of the nondisclosure agreement I previously told her about. These statements were made in several different telephone conversations, some of which included Raymond Mobrez and his wife, Iliana Llaneras. 13. After I talked to Ms. Borodkin and her clients, I began to sober up and I

realized that what I was doing was wrong. I stopped using drugs, and I contacted Mr. Magedson to tell him what I had done. 14. Shortly thereafter, on October 20, 2010 I met with Adam Kunz who I know

to be one of Xcentric's lawyers in Arizona. On that day, I gave Mr. Kunz a sworn statement in which I truthfully testified that I had no knowledge of Ed Magedson writing reports on the Ripoff Report website, that I had no knowledge of Ed Magedson changing reports on the Ripoff Report website (other than adding text on behalf of CAP members as part of their agreement), and that I had not created or changed any reports on the Ripoff Report website. All of these statements were true. 15. I am aware that Ms. Borodkin has submitted a declaration dated November

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1, 2010 in which she outlines some of her communications with me. Some parts of Ms. Borodkin's declaration are accurate but other parts are not. 16. For the most part, the statements in paragraph 8 of her declaration are

accurate insofar as I did give her the names of some people who I knew were programmers with knowledge of various aspects of the Ripoff Report website. 17. For the most part, the statements in paragraph 9 of Ms. Borodkin's

declaration are not accurate and are misleading insofar as they imply that I told her that "Justin Crossman would have knowledge of Defendants' practice of manually changing HMTL code and meta tags." I never made any such statement to Ms. Borodkin and I did not and do not have any knowledge that Mr. Magedson is involved in manually changing 4 AFFIDAVIT OF JAMES ROGERS CV10-01360 SVW

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HTML code or meta tags. On the contrary, as I testified in my sworn statement given to Mr. Kunz, I am aware that Mr. Magedson does NOT have access to the "back end" of Ripoff Report's servers where such changes would be made. I am also aware that Mr. Magedson has not had access to Xcentric's "back end" for many years. 18. I did tell Ms. Borodkin that I was aware of (and was present at) one recent

meeting at which Mr. Magedson met with an individual who made a proposal to perform some general marketing services for the Ripoff Report website which would include providing "search engine optimization" or "SEO" services to help the site reach more viewers. To my knowledge, this meeting (which occurred during 2010) was the first time I am aware of Xcentric ever considering performing "SEO" services. However, this meeting had nothing to do with the reports about Plaintiffs nor did the meeting have anything to do with altering or changing the reports about Plaintiffs. 19. I am aware that attached as Exhibit 3 to Ms. Borodkin's declaration is a

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copy of a draft PowerPoint presentation that relates to the Corporate Advocacy Program. I gave this document to Ms. Borodkin in violation of my non-disclosure agreement with Xcentric and I am sure that Ms. Borodkin knew I was violating that agreement by giving her this document. However, this document has never been used by Xcentric and it is not necessarily reflective of how Xcentric's Corporate Advocacy Program operates. Rather, this document is rough draft that was put together as a sounding board and for gathering ideas; it has never been used outside of Xcentric and I am certain this document was never provided to Mr. Mobrez or Ms. Llaneras or anyone else prior to this litigation. 20. I am aware that in paragraph 14 of her declaration, Ms. Borodkin claims

that I told her that Mr. Magedson "has failed to keep emails and other evidence relevant to active litigation." I further understand that Ms. Borodkin claims that I told her that

"Mr. Magedson will get a new laptop, lose emails, and say that the loss of emails was a `good thing and a bad thing'". I further understand that paragraph 14 of Ms. Borodkin's declaration claims that I made other statements about efforts Mr. Magedson made to "disguise" business transactions. 5 AFFIDAVIT OF JAMES ROGERS CV10-01360 SVW

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21.

All of these statements are either false, made up by Ms. Borodkin, were not

said by me, are incorrect interpretations of something I said, or are otherwise statements that I made to Ms. Borodkin while under the influence of drugs and for the purpose of "telling her what she wanted to hear" so that I could get money from her to buy drugs. 22. If I was deposed today, I could and would truthfully testify that I am no

longer using any illegal substances. In addition, I am not aware of Mr. Magedson ever "losing emails", "failing to keep emails", or failing to keep any other evidence relevant to active litigation. 23. If I was deposed today, I could and would truthfully testify that I am aware

of Mr. Magedson recently replacing one old laptop with a new one (which occurred in the past few months), but I have no knowledge and no reason to believe that any of his emails were lost in the process. On the contrary, I am aware that Mr. Magedson keeps regular backups of his computer and he has informed me that he did not lose any emails or any other information as a result of getting the new laptop. 24. If I was deposed today, I could and would also truthfully testify that I have

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no knowledge of Mr. Magedson attempting to "disguise" business transactions or "avoid creating evidence" of his business activities other than efforts he made to protect his home address by placing his home into the name of an LLC. 25. To be clear--I have no personal knowledge of either Mr. Magedson or

anyone else at Xcentric creating any reports about Plaintiffs, nor do I have any knowledge of either Mr. Magedson or anyone else at Xcentric changing any of the text, HTML, meta tags, or any other unique aspect of the reports about Plaintiffs (I am aware that the page addresses or "URLs" of the reports about Plaintiffs were changed at some point following a redesign of the entire Ripoff Report site during which the format of the addresses for all pages on the site were changed to a different style). 26. I have no knowledge of Mr. Magedson or anyone else at Xcentric offering

to "sell meta tags" to Plaintiffs or to anyone else. 6 AFFIDAVIT OF JAMES ROGERS CV10-01360 SVW

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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