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

Filing 61

PLAINTIFF'S EVIDENTIARY OBJECTIONS OPPOSITION re: MOTION for Summary Judgment as to Entire Case 40 filed by Plaintiffs Asia Economic Institute, Iliana Llaneras, Raymond Mobrez. (Borodkin, Lisa)

DANIEL F. BLACKERT, ESQ., CSB No. 255021 LISA J. BORODKIN, ESQ., CSB No. 196412 Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Telephone [phone] Facsimile [phone] [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiffs, Asia Economic Institute, LLC Raymond Mobrez, and Iliana Llaneras UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) XCENTRIC VENTURES, LLC, an Arizona LLC, d/b/a as BADBUSINESS ) ) BUREAU and/or ) BADBUSINESSBUREAU.COM ) and/or RIP OFF REPORT and/or ) RIPOFFREPORT.COM; BAD ) BUSINESS BUREAU, LLC, organized ) ) and existing under the laws of St. ) Kitts/Nevis, West Indies; EDWARD MAGEDSON an individual, and DOES ) ) 1 through 100, inclusive, ) ) Defendants. ) ASIA ECONOMIC INSTITUTE, a California LLC; RAYMOND MOBREZ an individual; and ILIANA LLANERAS, an individual, Case No.: 2:10-cv-01360-SVW-PJW The Honorable Stephen V. Wilson PLAINTIFFS' EVIDENTIARY OBJECTIONS TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Date: June 28, 2010 Time: 1:30 p.m. Ctrm: 6 Discovery Cut-off.: None Pretrial Conf. Date: August 2, 2010 Trial Date: August 3, 2010

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TABLE OF CONTENTS I. Evidence of Recorded Telephone Calls Should Be Excluded....................1 A. Recordings of California-Arizona Telephone Calls Are Inadmissible under California Penal Code Section 632(d) ........................................1 i. The Recordings Were Made Without Plaintiffs' Consent...........2

ii. California's Two-Party Consent Rule Should Govern the Admissibility of Recordings in this Proceeding .............................................4 iii. Plaintiffs Had a Reasonable Expectation of Privacy ..................6

B. The Recordings Should Be Excluded as Evidence Sanctions under Federal Rule 37(c) for Defendants' Failure to Identify them in Their Initial Rule 26(a) Disclosures.....................................................................................7 II. Specific Objections ................................................................................... 11

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Plaintiffs Asia Economic Institute, LLC ("AEI"), Raymond Mobrez, and Iliana Llaneras ("Plaintiffs") hereby object to, and move to strike, the following evidence and exhibits submitted in support of Defendants' Motion for Summary Judgment. I. Evidence of Recorded Telephone Calls Should Be Excluded In addition to the specific objections set forth in the following tables,

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Plaintiffs move to strike evidence of purported sound recordings of telephone calls
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between Mr. Mobrez and Defendants, and transcripts thereof.
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First, such sound recordings were made without the knowledge or consent of
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Mr. Mobrez, in violation of California Penal Code Section 632. Thus, they are
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inadmissible in this action. Second, the recordings were not identified in
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Defendants' Initial Rule 26 Disclosures dated April 21, 2010. Therefore, they
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should be excluded as an evidence sanction under Federal Rule 37(c).
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A.
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Recordings of California-Arizona Telephone Calls Are Inadmissible under California Penal Code Section 632(d).

California Penal Code § 632(a) makes it a crime to: intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio[.] Cal. Penal Code § 632(a). Section 632(c) of the California Penal Code defines "confidential communication" to include: any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes . . . other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. Cal. Penal Code § 632(c).

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Evidence obtained in violation of this section is not admissible in any proceeding, (except a prosecution for violation of this section): [N]o evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding. Cal. Penal Code § 632(d). i. The Recordings Were Made Without Plaintiffs' Consent

It is undisputed that Plaintiffs did not know they calls were being recorded. Defendant Ed Magedson admits in his May 11, 2010 Affidavit, "At the time their declarations were filed on May 3, 2010, Mr. Mobrez and Ms. Llaneras did not know that these calls had been recorded." DN-31 at ¶12 (emphasis added). It is also undisputed that Xcentric had a business practice, until a few weeks ago, of not informing callers that their calls may be recorded, apparently relying on Arizona state law. At the June 2, 2010 Deposition of Xcentric Ventures, LLC ("Xcentric") under Rule 30(b)(6), Xcentric's designee testified as follows: Q. A. Q. Do you notify callers that you record telephone conversations? I'm a one party -- Arizona is a one party state. So why don't you notify callers?

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A. Well there is -- there is notification on the recording. If you listen, before it comes to me, there is a part that says calls may be recorded. Q. A. What specific language I'm asking for? I don't remember and I don't call myself, so I can't remember.

Q. Yeah, I'm going to make a request for that voice recording, the actual system that you use the prompts and everything, I will make a request for that. A. Anyone can do that. You can call a number and get them all yourself.

Q. How long is that particular prompt -- okay. Let's back up. The prompt that my clients went through?
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A. Q.

Uh-huh. How long had that been in existence for?

MR. GINGRAS: Form. Objection.
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Q. BY MR. BLACKERT: Since the first phone call my clients called you? A. Q. A. It's never changed. It's never changed. Until recently there was a minor change. When did it change? I forget the exact date. What was the minor change? About the recorded phone calls.

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Q. A. Q. A.

See Declaration of Lisa J. Borodkin ¶6, Ex. 3. At the June 8, 2010 Deposition of Edward Magedson, Mr. Magedson testified that callers were first notified that "calls may be recorded" starting only a few weeks ago: Q. What I'm getting at is how do we know what these outgoing prompts and automated messages said at the time of approximately May 2009? A. It's always been the thing, except for one little part when you press number one, there's to get to me, because it says, after you press five to get to me, and then it says, you know, would you like us to locate somebody or something like that, and that's really coming to me, because it says Ripoff Report editor, okay, and I forget if that comes before or right after you press one. But when you press one, it's like an automated message part, and that's because I had to figure out where should I put the notification because of this lawsuit, I just decided well, I'll go ahead and put -- even though we are a one party state here in Arizona, I will go ahead and put in advice by counsel, why don't I just go ahead and add calls may be recorded, so that's the only thing that's just changed. That one little thing was etched right in will in the

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middle of it, calls may be recorded. Everything else is a hundred percent the same. Nothing has stopped. Nothing else has been changed. Q. When was that changed?

A. I don't -- it was some time after -- I don't know maybe about a week and a half ago. Borodkin Dec. ¶7, Ex. 4 (emphasis added).

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ii.

California' Two-Party Consent Rule Should Govern the Admissibility of Recordings in this Proceeding

Defendants may argue that the recordings were made legally because Arizona is a one-party consent state. However, under a conflict of laws analysis, California ­ the forum state ­ has a strong interest in enforcing its more restrictive laws regarding wiretapping and eavesdropping. Federal courts sitting in diversity must look to the law of the forum state in making a choice of law determination. See Arno v. Club Med Boutique, 134 F.3d 1424, 1425 (9th Cir. Cal. 1998); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941). This action was brought in California state court and removed to United States District Court in California. Therefore, we look to the choice of law rules of California. California applies a three-step "governmental interest" analysis to choice-oflaw questions: (1) "the court examines the substantive laws of each jurisdiction to determine whether the laws differ as applied to the relevant transaction", (2) "if the laws do differ, the court must "determine whether a true conflict' exists in that each of the relevant jurisdictions has an interest in having its law applied", and (3) "if more than one jurisdiction has a legitimate interest ... the "court [must] identify and apply the law of the state whose interest would be more impaired if its law were not applied." See Downing v. Abercrombie & Fitch, 265 F.3d 994, 1006 (9th Cir. Cal. 2001); Abogados v. AT&T, Inc., 223 F.3d 932, 934 (9th Cir. 2000); Liew v. Official Receiver & Liquidator, 685 F.2d 1192, 1196 (9th Cir. 1982).
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The California Supreme Court's decision in Hurtado v. Superior Court, 11 Cal. 3d 574 (Cal. 1974), is the primary case setting forth California's choice of law rules and analyzing the approach to be taken in determining the interest of each jurisdiction in enforcing its own law: Generally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state. In such event he must demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it. Id. at 670 (internal citations omitted); see also Downing v. Abercrombie & Fitch,

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265 F.3d 994, 1006 (9th Cir. 2001) (Hawaii had no interest in having its law
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applied in California forum).
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The laws of California and Arizona regarding the admissibility of the tape
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recordings are substantially different. California prohibits the electronic recording
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of any "confidential communication" without the consent of all parties to the
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communication. See Cal. Penal Code § 632(a).
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By comparison, Arizona law offers more limited protection against the
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electronic interception of oral communications. In Arizona, any persons present at
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a conversation may record the conversation without obtaining the consent of the
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other parties involved. See Ariz. Rev. Stat. § 13-3005 (prohibiting the
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"intentional[] interception [of] a conversation or discussion at which [one] is not
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present...without the consent of a party to such conversation or discussion"); Ariz.
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Rev. Stat. § 13-3012 (excepting from the statute's eavesdropping prohibition "the
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interception of any ... oral communication by any person, if the interception is
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effected with the consent of a party to the communication or a person who is
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present during the communication..."). Thus, Arizona law "reflects a policy
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decision by the state that the secret recording of a private conversation by a party
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to that conversation does not violate another party's right to privacy." See Medical
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Lab. Management Consultants v. American Broadcasting Co., 306 F.3d 806, 816 (9th Cir. 2002). California, on the other hand, criminalizes this conduct. See Cal. Penal Code 632(a). California has a more legitimate interest in the enforcement of its laws within its borders. Therefore, California's law should be applied. iii. Plaintiffs Had a Reasonable Expectation of Confidentiality

Defendants may also argue that Plaintiffs did not have an expectation that their telephone calls were "confidential" because Plaintiffs have put evidence into the record that Ms. Llaneras, Mr. Mobrez's spouse, was listening to one of the conversations. DN-36 at ¶¶4-5. However, this does not necessarily destroy confidentiality. A marital privilege exists between Mr. Mobrez and Ms. Llaneras. Thus, the confidential nature of these communications is preserved unless it is waived. See, e.g., United States v. Strobehn, 421 F.3d 1017, 1021 (9th Cir. 2005) ("marital communications privilege protects statements or actions that are intended as a communication by one spouse to the other, that are made during the existence of a valid marriage, and that are intended as confidential by the spouse who makes the communication.") (emphasis added). Moreover, Ms. Llaneras only overheard one of the calls. Therefore, it is undisputed that an expectation of confidentiality existed with respect to all other calls. In addition, the California Supreme Court has recognized an "expectation of limited privacy" against the electronic recording of a communication even though the speaker lacks an expectation of complete privacy. See Sanders v. Am. Broad. Cos., 20 Cal. 4th 907, 916 (1999). In Sanders, the California Supreme Court held that the plaintiff could have a reasonable expectation of privacy against the covert videotaping of a conversation between two coworkers despite the fact the plaintiff lacked a reasonable expectation of complete privacy because he was visible and audible to other coworkers. See id., 10 Cal. 4th at 916. Accordingly, the Court
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stated that the "possibility of being overheard by coworkers does not, as a matter of law, render unreasonable an employee's expectation that his or her interactions within a nonpublic workplace will not be [recorded] in secret." See id. Sanders does suggest that a conversation may still be confidential despite being overheard by a coworker in a non-public place. Therefore, the "expectation of limited privacy" may apply to Ms. Llaneras and Mr. Mobrez in their capacities as co-Directors of Asia Economic Institute LLC in a non-public workplace, where the conversation was overheard. Therefore, the communications were confidential despite Ms. Llaneras overhearing one of them. Plaintiffs had an expectation of confidentiality in their phone calls. Evidence of these recordings should be excluded under California Penal Code Section 632(a). B. The Recordings Should Be Excluded as Evidence Sanctions under Federal Rule 37(c) for Defendants' Failure to Identify them in Their Initial Rule 26(a) Disclosures.

Federal Rule of Civil Procedure 37(c) provides in part: (c) Failure to Disclose, to Supplement an Earlier Response, or to Admit. (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Fed. R. Civ. P. 37(c) (emphasis added). Defendants failed to disclose the recordings as information required under Rule 26(a). The failure was not substantially justified or harmless. The recordings

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should have been disclosed as defense material. The failure to identify the existence of such recordings at the earliest possible opportunity was deliberate, harmful, and caused undue surprise and embarrassment. There is evidence in the record that, on April 20, 2010, defense counsel instructed Defendant Edward Magedson to gather and provide such recordings for use in this action. Therefore, the recordings of telephone calls should be excluded from evidence on this motion. On April 21, 2010, Defendants served their Initial Disclosures. Defendants failed to identify the existence and location of such recordings in Defendants' Initial Rule 26 Disclosures dated April 21, 2010. See Declaration of Lisa J. Borodkin at ¶¶4-5, Ex. 1. Defendants had a positive duty to disclose all information "reasonably available" to them as of April 21, 2010 pursuant to Fed. R. Civ. Pro 26(a)(1)(E). Later-filed evidence reflects that Defendant Magedson makes and keeps recordings in the ordinary course of Xcentric Ventures LLC ("Xcentric")'s business. In the May 11, 2010 Affidavit of Edward Magedson ("May 11, 2010 Magedson Aff."), Mr. Magedson states, in pertinent part that defense cousbnel instructed him on April 20, 2010 to gather the recordings: "6. After these [the March 22, 2010 Affidavit of Edward Magedson, and the April 5, 2010 affidavit of Edward Magedson] affidavits were filed, I recalled that I had recordings of all my telephone conversations with Mr. Mobrez which had taken place approximately a year earlier. I had not yet retrieved or listened to any of these recordings before my affidavits were filed with the court. 7. At the request of my attorneys following the Court's denial of our anti-SLAPP motion on April 19, 2010, on April 20, 2010 I spent several hours conducting a search of my records. I was able to eventually locate six recordings of calls and/or voicemails from Raymond Mobrez to the main number for the Ripoff Report site; [phone]. The first time I listened to any of these recordings was on April 20, 2010. I also provided copies of these calls to my counsel for the first time on that same day."
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May 11, 2010 Affidavit of Ed Magedson, DN-31 at ¶¶6-7 (emphasis added). Defendants have had a business practice of recording calls for approximately two years. Defendant Xcentric Ventures LLC ("Xcentric") testified at its June 2, 2010 30(b)(6) deposition that it has had a practice of recording phone calls since "more than two years ago" and that the reason was, among other things: "so somebody couldn't say I said something like your clients saying in detail handwritten notes and date and time and da da da saying I said certain things, which we all know never happened, nothing even close." Borodkin Dec. ¶7, Ex. 3 (pages from June 6, 2010 Deposition of Xcentric 30(b)(6) witness at 70-71). Despite the automatic disclosure duties imposed under Federal Rule 26(a), Defendants failed to identify the existence of such audio recordings in their Initial Rule 26 Disclosures served April 21, 2010. Instead, Defendants deliberately suppressed the existence of these audio recordings, despite actual knowledge of their existence, until May 7, 2010, the date of Plaintiff Raymond Mobrez's deposition. Defendants' failure to disclose the recordings of the conversations in their Rule 26(a) disclosures was not justified and was harmful. Although impeachment evidence does not need to be identified in initial disclosures, see Davis v. Los Angeles West Travelodge, 2009 U.S. Dist. LEXIS 119173 ("[T]he fact that Plaintiff withheld the video recordings during discovery is not a bar to their admissibility as impeachment evidence")(excluding evidence used "solely for impeachment" from pretrial and discovery disclosures); Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1172 (9th Cir. 2008) ("impeachment evidence does not have to be revealed in pretrial disclosures"), the recordings of telephone conversations in this case are not solely impeachment material. The recordings are central to Defendants' defense as presented in this motion for summary judgment. Defendants devote most of their motion for summary judgment to the recordings.
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Defendants are attempting to introduce the recordings of the telephone calls through the Declaration of David Gingras, via Exhibit A (Transcript of May 7, 2010 Deposition of Plaintiff Raymond Mobrez). DN-47. Mr. Gingras' Declaration purports to authenticate audio recordings of telephone calls from Plaintiff Raymond Mobrez to Defendants (identified as calls "1, 3, 4, 5, 6, and 7"). See DN47, Ex. A. Aside from the specific objections below, these are subject to mandatory exclusion under Federal Rule of Civil Procedure 37(c). In situations such as this, Rule 37(c)(1) prevents the use of such undisclosed evidence to support a motion or at trial. Rule 37(c)(1) mandates the exclusion of those recordings from evidence under the mandatory automatic exclusion sanction. For purposes of challenging an affidavit filed in support of a Rule 56 motion, "a party must either move to strike the affidavit or otherwise lodge an objection with the district court." See Douglas v. Pfingston, 284 F.3d. 999, 1003 (9th Cir. 2002). This Court should exclude the telephonic recordings and transcripts thereof from this motion. The recordings were not created and utilized to impeach the veracity of Plaintiff but were created and kept in the ordinary course of business. See Borodkin Dec. at Ex. 3. They were improperly withheld, seemingly for the purpose of ambushing Plaintiff at deposition. The purpose of this ambush is clear from Defendants' Rule 56 motion. The documents and associated testimony are being used to prove a defense and not solely to impeach Plaintiffs' credibility. Therefore, Rule 26's impeachment exception does not apply. These issues are also the subject of Plaintiff's Motion to Strike, which will be filed under separate cover, with a request to advance the hearing to June 28, 2010, the date of the hearing on Defendants' Motion for Summary Judgment.

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II.

Specific Objections DECLARATION OF DAVID GINGRAS Objections Lack of foundation; lack of personal knowledge failure to authenticate recordings. (Fed. R. Evid. 901). Original recordings not provided and withheld under claim of confidentiality (Fed. R. Evid. 1002). Disputed as to who actually creates the recordings and keeps them. Attorney Gingras states that Xcentric Ventures recorded the audio files. Magedson testifies in his May 11, 2010 Affidavit, 3:2728; 4:1-2 [DN-31], that Xcentric automatically creates recordings as a regular business practice. However, Defendant Magedson also testifies that a third party recording service produced these recordings off-site and that he has no access to them. Magedson Affidavit, 8:5-8 [DN-31]; Magedson Uncertified Depo. of June 2, 2010, at 74, 187-88; Magedson Uncertified Depo. of June 2, 2010, at 128. Lack of foundation; Declarant lacks credibility (Fed. R. Evid. 806): Magedson testifies that he has no knowledge of what the voice recording prompts say within the system itself or how long each may take. Magedson has no knowledge of why there is a discrepancy between the telephone records of Mobrez and
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Para. Testimony ¶4 Gingras Exhibit "A", Deposition Transcript of Raymond Mobrez at 271:7-273:9, constituting the purported "transcription" of recorded Call 1.

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the audio recordings. Magedson Uncertified Depo. of June 8, 2010 at pp. 125-130. Borodkin Dec. ¶7, Ex. 4. Gingras has no competence to authenticate the recordings in Exhibit 25 to the Deposition of Raymond Mobrez. (Fed. R. Evid. 901). If attorney Gingras is the source of authentication, Plaintiff's have a right to crossexamine him. ¶4 Gingras Exhibit "A", Deposition Transcript of Raymond Mobrez at 276:3-277:6, constituting the purported "transcription" of recorded Call 3. Lack of foundation; lack of personal knowledge failure to authenticate recordings. (Fed. R. Evid. 901). Original recordings not provided and withheld under claim of confidentiality (Fed. R. Evid. 1002). Disputed as to who actually creates the recordings and keeps them. Attorney Gingras states that Xcentric Ventures recorded the audio files. Magedson testifies in his May 11, 2010 Affidavit, 3:2728; 4:1-2 [DN-31], that Xcentric automatically creates recordings as a regular business practice. However, Defendant Magedson also testifies that a third party recording service produced these recordings off-site and that he has no access to them. Magedson Affidavit, 8:5-8 [DN-31]; Magedson Uncertified Depo. of June 2, 2010, at 74, 187-88; Magedson Uncertified Depo. of June 2, 2010, at 128. Lack of foundation; Declarant lacks
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¶4

Gingras Exhibit "A", Deposition Transcript of, Raymond Mobrez at 278:12-279:101, constituting the purported "transcription" of recorded Call 4.

credibility (Fed. R. Evid. 806): Magedson testifies that he has no knowledge of what the voice recording prompts say within the system itself or how long each may take. Magedson has no knowledge of why there is a discrepancy between the telephone records of Mobrez and the audio recordings. Magedson Uncertified Depo. of June 8, 2010 at pp. 125-130. Borodkin Dec. ¶7, Ex. 4. Gingras has no competence to authenticate the recordings in Exhibit 25 to the Deposition of Raymond Mobrez. (Fed. R. Evid. 901). If attorney Gingras is the source of authentication, Plaintiff's have a right to crossexamine him. Lack of foundation; lack of personal knowledge failure to authenticate recordings. (Fed. R. Evid. 901). Original recordings not provided and withheld under claim of confidentiality (Fed. R. Evid. 1002). Disputed as to who actually creates the recordings and keeps them. Attorney Gingras states that Xcentric Ventures recorded the audio files. Magedson testifies in his May 11, 2010 Affidavit, 3:2728; 4:1-2 [DN-31], that Xcentric automatically creates recordings as a regular business practice.

See Footnote 1.

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¶4

Gingras Exhibit "A", Deposition Transcript of Raymond Mobrez at 280:4-281:72, constituting the purported "transcription" of recorded Call 5.

However, Defendant Magedson also testifies that a third party recording service produced these recordings off-site and that he has no access to them. Magedson Affidavit, 8:5-8 [DN-31]; Magedson Uncertified Depo. of June 2, 2010, at 74, 187-88; Magedson Uncertified Depo. of June 2, 2010, at 128. Lack of foundation; Declarant lacks credibility (Fed. R. Evid. 806): Magedson testifies that he has no knowledge of what the voice recording prompts say within the system itself or how long each may take. Magedson has no knowledge of why there is a discrepancy between the telephone records of Mobrez and the audio recordings. Magedson Uncertified Depo. of June 8, 2010 at pp. 125-130. Borodkin Dec. ¶7, Ex. 4. Gingras has no competence to authenticate the recordings in Exhibit 25 to the Deposition of Raymond Mobrez. (Fed. R. Evid. 901). If attorney Gingras is the source of authentication, Plaintiff's have a right to crossexamine him. Lack of foundation; lack of personal knowledge failure to authenticate recordings. (Fed. R. Evid. 901). Original recordings not provided and withheld under

See Footnote 1.

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claim of confidentiality (Fed. R. Evid. 1002). Disputed as to who actually creates the recordings and keeps them. Attorney Gingras states that Xcentric Ventures recorded the audio files. Magedson testifies in his May 11, 2010 Affidavit, 3:2728; 4:1-2 [DN-31], that Xcentric automatically creates recordings as a regular business practice. However, Defendant Magedson also testifies that a third party recording service produced these recordings off-site and that he has no access to them. Magedson Affidavit, 8:5-8 [DN-31]; Magedson Uncertified Depo. of June 2, 2010, at 74, 187-88; Magedson Uncertified Depo. of June 2, 2010, at 128. Lack of foundation; Declarant lacks credibility (Fed. R. Evid. 806): Magedson testifies that he has no knowledge of what the voice recording prompts say within the system itself or how long each may take. Magedson has no knowledge of why there is a discrepancy between the telephone records of Mobrez and the audio recordings. Magedson Uncertified Depo. of June 8, 2010 at pp. 125-130. Borodkin Dec. ¶7, Ex. 4. Gingras has no competence to authenticate the recordings in Exhibit 25 to the Deposition of Raymond Mobrez. (Fed. R. Evid. 901). If attorney Gingras is
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¶4

Gingras Exhibit "A", Deposition Transcript of, Raymond Mobrez at 282:10-283:20, constituting the purported "transcription" of recorded Call 6.

the source of authentication, Plaintiff's have a right to crossexamine him. Lack of foundation; lack of personal knowledge failure to authenticate recordings. (Fed. R. Evid. 901). Original recordings not provided and withheld under claim of confidentiality (Fed. R. Evid. 1002). Disputed as to who actually creates the recordings and keeps them. Attorney Gingras states that Xcentric Ventures recorded the audio files. Magedson testifies in his May 11, 2010 Affidavit, 3:2728; 4:1-2 [DN-31], that Xcentric automatically creates recordings as a regular business practice. However, Defendant Magedson also testifies that a third party recording service produced these recordings off-site and that he has no access to them. Magedson Affidavit, 8:5-8 [DN-31]; Magedson Uncertified Depo. of June 2, 2010, at 74, 187-88; Magedson Uncertified Depo. of June 2, 2010, at 128. Lack of foundation; Declarant lacks credibility (Fed. R. Evid. 806): Magedson testifies that he has no knowledge of what the voice recording prompts say within the system itself or how long each may take. Magedson has no knowledge of why there is a discrepancy between the telephone records of Mobrez and the audio
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¶4

Gingras Exhibit "A", Deposition Transcript of Raymond Mobrez at 284:3-296:6, constituting the purported "transcription" of recorded Call 7.

recordings. Magedson Uncertified Depo. of June 8, 2010 at pp. 125-130. Borodkin Dec. ¶7, Ex. 4. Gingras has no competence to authenticate the recordings in Exhibit 25 to the Deposition of Raymond Mobrez. (Fed. R. Evid. 901). If attorney Gingras is the source of authentication, Plaintiff's have a right to crossexamine him. Lack of foundation; lack of personal knowledge failure to authenticate recordings. (Fed. R. Evid. 901). Original recordings not provided and withheld under claim of confidentiality (Fed. R. Evid. 1002). Disputed as to who actually creates the recordings and keeps them. Attorney Gingras states that Xcentric Ventures recorded the audio files. Magedson testifies in his May 11, 2010 Affidavit, 3:2728; 4:1-2 [DN-31], that Xcentric automatically creates recordings as a regular business practice. However, Defendant Magedson also testifies that a third party recording service produced these recordings off-site and that he has no access to them. Magedson Affidavit, 8:5-8 [DN-31]; Magedson Uncertified Depo. of June 2, 2010, at 74, 187-88; Magedson Uncertified Depo. of June 2, 2010, at 128. Lack of foundation; Declarant lacks credibility (Fed. R. Evid. 806):
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¶4

Gingras Exhibit "A", Deposition Transcript of Raymond Mobrez at 98:5-99:5; 107:22-108:17 Gingras Exhibit "A", Deposition Transcript of Raymond Mobrez at 174:12-178:2

¶4
18 19 20 21 22 23 24 25 26 27 28

Magedson testifies that he has no knowledge of what the voice recording prompts say within the system itself or how long each may take. Magedson has no knowledge of why there is a discrepancy between the telephone records of Mobrez and the audio recordings. Magedson Uncertified Depo. of June 8, 2010 at pp. 125-130. Borodkin Dec. ¶7, Ex. 4. Gingras has no competence to authenticate the recordings in Exhibit 25 to the Deposition of Raymond Mobrez. (Fed. R. Evid. 901). If attorney Gingras is the source of authentication, Plaintiff's have a right to crossexamine him. Attorney Gingras mischaracterizes the testimony of Mobrez. Mobrez never states that he has no evidence. Attorney Gingras mischaracterizes the testimony of Mobrez. Mobrez never states that he did not have the name of a single employee who quit as a result of any actions of Xcentric or Mr. Magedson.

AFFIDAVIT OF ED MAGEDSON Para. Testimony Objections ¶2 "Serving as a forum for speech concerning bad Lacks Foundation; business practices among other things, the Irrelevant as free Ripoff Report is the leading complaint reporting speech is not at issue in website and is the most ardent supporters of free this case. (Fed. R. Evid. speech anywhere." 401) ¶22 On May 5, 2009, Mr. Mobrez re-sent me a copy Best Evidence Rule, the of the email he previously sent on April 28, document speaks for 2009 which also began "Dear Editor, I spoke itself. with someone at your office yesterday...". ¶22 The "form email" I sent to Mr. Mobrez on May Best Evidence Rule, the 5, 2009 does not demand money and does not document speaks for contain any threats; it simply explains my views itself.
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¶31

for anyone wishing to address a report on our site. "According to my search, Xcentric's phone system recorded six phone calls from Mr. Mobrez in April and May of 2009. These calls are summarized in the table below. It should be noted that the table actually reflects a total of seven calls were made even though only six calls were recorded. TABLE OF RECORDINGS Call Date End Call Length # Time From Min:Sec # 1 4/27/2009 3:25 PM (310) 1:35 8063000 2 4/27/2009 N/A N/A N/A 3 4/27/2009 3:32 PM (310) 1:20 8063000 4 5/5/2009 11:33AM (310) 0:51 8063000 5 5/5/2009 1:10PM (310) 0:35 8063000 6 5/9/2009 1:38 PM (310) 1:36 8015161 7 5/12/2009 3:05 PM (310) 14:45 8063000

Lacks personal knowledge of how the recordings are kept and as to their completeness as represented by affiant, lacks foundation as the table created does not exist and was created by either Magedson or his attorneys. None of whom have personal knowledge of how the recordings were kept in the regular course of business and whether the recordings are complete or excerpted. Moreover, Magedson has no personal knowledge of how Xcentric Phone System works. Magedson Uncertified Depo. of June 8, 2010 at pp. 126. Counsel for Plaintiff has asked to depose a representative of the third party vendor who records for Xcentric but has been consistently rebuffed by counsel for defense, Gingras who states that neither the identity nor a representative will be produced without a protective order. Email correspondence between attorney Gingras and attorney Borodkin dated May 27, 2010. Exhibit ___ to Borodkin Dec. Uncertified depo. Ed Magedson dated June 2, 2010, pg. 74. Exhibit ___ to Borodkin Dec. Hearsay to the extent that Affiant is utilizing information and/ or
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19

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third party commentary to prove the truth of the matter asserted, best evidence rule. The recordings should speak for themselves. ¶59 "I understand that screenshots of portions of the report as well as well as copies of the text of each of each report are attached to the Declaration of David Gingras submitted herewith as follows: Exhibit Report # Submission Date 1 A/B 417493 January 28, 2009 2 A/B 423987 February 13, 2009 3 A/B 457433 June 1, 2009 4 A/B 502429 September 30, 2009 5A/B 564331 February 3, 2010 6A/B 571232 February 19, 2010 "The only phone call not recorded-Call #2 in this table-was a call made from Mr. Mobrez's office phone to the Ripoff report on April 27, 2009. According to phone records produced by Mr. Mobrez which I have reviewed, I am aware that Call #2 was made at 3:27 PM on April 27, 2009, but the duration of the call as reflected on the phone bill was only 1.0 minute. It is my belief that no recording of this call was made because Mr. Mobrez never actually spoke to me during Call #2; this call was either dropped, did not connect successfully, or Mr. Mobrez hung up before reaching me. "The only phone call not recorded-Call #2 in this table-was a call made from Mr. Mobrez's office phone to the Ripoff report on April 27, 2009. According to phone records produced by Mr. Mobrez which I have reviewed, I am aware that Call #2 was made at 3:27 PM on April 27, 2009, but the duration of the call as reflected on the phone bill was only 1.0 minute. It is my belief that no recording of this call was made because Mr. Mobrez never actually spoke to me during Call #2; this call was either dropped, did not connect successfully, or Mr. Mobrez hung up before reaching me. "In order to reach me directly, a caller is required to listen to two different series of options and then push two different keys to indicate that they would like to speak to the Ripoff Report's editor. Listening to only the main menu of options takes 40 seconds. If the caller chooses option 1, which relates to requests
20

Lacks Personal Knowledge; Irrelevant as the Exhibit attached to the Gingras Declaration speaks for itself.

¶32

Lacks personal knowledge, lacks foundation, hearsay to the extent that Affiant is utilizing information and/ or third party commentary to prove the truth of the matter asserted, best evidence rule, speculative as to why call was not recorded Lacks personal knowledge, lacks foundation, hearsay to the extent that Affiant is utilizing information and/ or third party commentary to prove the truth of the matter asserted, best evidence rule, speculative as to why call was not recorded Lacks personal knowledge, lacks foundation as to Mr. Magedson's competence to testify on this subject, speculative as the exact
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¶32

¶33

Plaintiff's Evidentiary Objections

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

¶34

¶34

¶35

amounts of time utilized in each menu options, failure to authenticate content of the menu options or to verify their exact timeframe "If the caller follows the phone tree to reach me, Lacks personal the phone system then asks the caller to state knowledge, lacks their name which is recorded, and then they are foundation as to Mr. placed on hold while the system forwards the Magedson's call to me. The automatic recording process competence to testify does not begin unless and until the call is on this subject, connected directly to me, and the audio speculative as the exact recording only captures what was said after the amounts of time call is connected to me." utilized in each menu options and as to the timing of the recording sequence, failure to authenticate content of the menu options "So, for instance, if a person spent 1 ½ minutes Lacks personal navigating through the phone menu system and knowledge, lacks waiting for the system to connect the call and foundation as to Mr. then spoke to me for a total of 30 seconds, Magedson's Xcentric's system would only record the actual competence to testify length of the conversation (30 seconds), but the on this subject, caller's phone bill would likely indicate a total speculative as the exact call duration of around 2.0 minutes." amounts of time utilized in each menu option and as to the timing of the recording sequence, inappropriate hypothetical "Although a person could reach me in under a Lacks personal minute if they knew the exact sequence of knowledge, lacks buttons to push and did not wait to hear each foundation as to Mr. menu listing, normally completing each step of Magedson's the phone menu process takes anywhere from competence to testify approximately one minute to nearly two on this subject, minutes. It is my belief that the time it takes to speculative as the exact complete this process is why Mr. Mobrez's amounts of time phone bills show that each call was utilized in each menu approximately 90 seconds longer than the audio option and as to the recording that was captured for each call." timing of the recording sequence, speculative as to why there is a discrepancy between Mr. Mobrez's phone records and the audio recordings, best evidence rule as the original documents
21

to remove reports, they get a recorded message regarding our policy, including the policy to not speak by telephone. It takes one minute and thirty seconds to listen to the main menu plus the recorded message in option 1."

Plaintiff's Evidentiary Objections

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¶46

¶56

¶58

¶60
15 16 17 18 19 20 21 22 23 24 25 26 27 28

¶61

speak for themselves Lacks personal knowledge, lacks foundation, failure to authenticate, hearsay to the extent that Affiant is utilizing information and/ or third party commentary to prove the truth of the matter asserted, best evidence rule, speculative as to why telephone call was not recorded "Mr. Mobrez never completed the CAP Lacks personal application, never joined the CAP program, and knowledge, speculative neither he nor AEI have ever paid anything to as to whether Mr. me or to Xcentric." Mobrez actually completed the application "Based upon my review of the Complaint and Lacks personal the exhibits thereto, I am aware that there are six knowledge, best reports which plaintiff's allege contain various evidence rule as the false statements about them." documents speak for themselves "All of these reports and rebuttals were created Lacks personal by third parties, not by me or Xcentric." knowledge, speculative as plaintiff purports to speak for all employees who may have acted on behalf of Xcentric "I am aware that on march 20, 2010, Mr. Lacks personal Mobrez filed a "corrected" affidavit in this knowledge, lacks matter in which he attempted to recant much of foundation, failure to his testimony. I am also aware that in his authenticate, hearsay to "corrected" affidavit Mr. Mobrez testified, "In the extent that Affiant addition, there were a number of incoming calls is utilizing information to me from Ripoff Report." This statement is and/ or third party completely false and is just another lie by Mr. commentary to prove Mobrez." the truth of the matter asserted, best evidence rule, speculative as to telephone calls that may have been made by others at Ripoff report "The second call from Mr. Mobrez was on April 27, 2009 at 3:47 PM. His telephone bill shows the length of this call was 1.0 minute. Xcentric's system did not record any audio from this call which I believe is due to the fact that the call was either dropped for some reason, or Mr. Mobrez hung up before he completed the phone menu process. Because Mr. Mobrez never spoke to me, no recording was made." AFFIDAVIT OF BEN SMITH

Para. Testimony ¶11 "Every user-generated submission to the site is screened and reviewed by a staff of monitors who are authorized to make minor editorial
Plaintiff's Evidentiary Objections
22

Objections Lacks personal knowledge, lacks foundation as to Mr.
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1 2 3 4 5

¶17
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

changes in order to redact certain types of content (primarily offensive language, profanity, threats, etc., and also including certain types of personal information such as social security numbers, bank account numbers and so forth). Other than such redactions, the staff is not authorized to make any changes to reports." "Ripoff Report's servers create a log showing the identity of each Ripoff Report content monitor who reviewed each report before it was posted. According to the site's records, the six reports at issue were reviewed by the following employees of Xcentric:"

¶19

¶19
25 26 27 28

Smith's competence to testify on this subject. Lack of reliability, as Mr. Magedson testified inconsistently on June 8, 2010 that redactions are also made of links to competitors' sites. Lacks foundation; Hearsay (Fed. R. Evid. 801) not admissible under Fed. R. Evid. 803 because lacks certification under Fed. R. Evid. 902(11) or Report # Content Monitor (12). Declarant does not testify that he made 417493 Amy T. the table based upon 423987 Kim J. the log. Best Evid. 457433 Amy T. Rule (Fed. R. Evid. 502429 Lynda C. 901). Failure to 564331 Lynda C. authenticate log and 571232 Amy T. reports and/ or content of Xcentric records. (Fed. R. Evid. 901). Original log should have been produced to prove its content (Fed. R. Evidence 1002). Hearsay to the extent that content of reports is used to prove the truth of the matter asserted (Fed. R. Evid. 801). "I am informed that negative postings about Lacks personal Mr. Mobrez have appeared on other websites knowledge, lacks including two websites that are owned by Mr. foundation. Hearsay to Mobrez." the extent that Affiant is utilizing third party commentary to prove the truth of the matter asserted (Fed. R. Evid. 801). "For instance, Exhibit 11 to Mr. Mobrez's Lacks personal deposition is a page located at knowledge, lacks http://asiaecon.org/linkex which contains a foundation, failure to link to one of the reports about Mr. Mobrez on authenticate reports the Ripoff Report site." and/ or content of link, (Fed. R. Evid. 901) hearsay to the extent that content of reports being utilized to prove
23

Plaintiff's Evidentiary Objections

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1 2 3 4 5 6 7

¶19

¶19
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

¶20

¶21

the truth of the matter asserted (Fed. R. Evid. 801). "I am informed that this site is owned or Lacks personal operated by Mr. Mobrez." knowledge, lacks foundation, hearsay to the extent that Affiant is utilizing third party commentary to prove the truth of the matter asserted (Fed. R. Evid. 801). Also, Exhibit 12 to Mr. Mobrez's deposition is Lacks personal a page located at another site which I am knowledge, lacks informed is owned or operated by Mr. foundation, failure to Mobrez: authenticate reports http://asiabusinessinstitute.com/component/co and/ or content of link ntent/15.html?task=view. This page contains (Fed. R. Evid. 901), an anonymous comment which reads: "No hearsay to the extent shit, asshole...a non-PhD could have figured it that content of reports out. You are a fake, a rip-off artist, immoral, being utilized to prove and did I say asshole?" the truth of the matter asserted (Fed. R. Evid. 801). On September 16, 2009, a report (#495708) Lacks relevance to the was submitted to the Ripoff Report regarding case at issue. (fed. R. a company called Overnightmattress.com. Evid. 401). Lacks The report which is available here: foundation and failure http://www.ripoffreport.com/Bedto authenticate reports Bath/Overnightmattress-co/overnightmattress- and/ or content of com-over-nig-355ee.htm) generally Xcentric records (Fed. complained about the quality of a mattress R. Evid. 901). Original purchased by the author, referring to it as report should have follows: "this thing feels like a glorified been produced to prove futon." In addition, the author stated that the its content, best company's return policy was misleading and evidence rule (Fed. R. unfair. In closing, the author issued a Evid. 1002), hearsay to strongly-worded warding instructing other the extent that content consumers to refrain from doing business with of reports being this company: "I would never use utilized to prove the overnightmattress.com ever again and would truth of the matter STRONGLY suggest you never use them the asserted (Fed. R. Evid. transaction was horrible and expensive." 801). On February 26, 2010, the president of Lacks relevance to the Overnightmattress.com posted a clear and case at issue. (Fed. R. simple rebuttal to the complaint which Evid. 401). Lacks explained his side of the story. The rebuttal, foundation and failure reflected in the screenshot below, accepted to authenticate reports responsibility for the author's dissatisfaction and/ or content of and it informed readers that in order to Xcentric records. (Fed. improve customer satisfaction, the company R. Evid. 901). Original had changed its return policy in a way that report should have resolved the concerns expressed in its original been produced to prove
24

Plaintiff's Evidentiary Objections

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report:"

its full content, best evidence rule (Fed. R. Evid. 1001). DECLARATION OF AMY THOMPSON

Para. Testimony ¶¶4, "My job is to remove the following 5 information from new postings: personal financial information, credit card numbers, bank account numbers, social security numbers, obscenities, and threats of violence." "Except as described in the previous paragraph, I am not permitted to, nor do I, change or add any content to (1) any posting; (2) any title or heading of any posting' and/or (3) any other part of the Rip-off Report website."

¶6

¶7

¶7

Objections Lacks foundation; Lacks credibility (Fed. R. Evid. 806) because Ed Magedson stated that content monitors "are supposed to redact foul language, social security numbers, something I forgot to tell you last week, which would be links to competitive business." Rough transcript of Deposition of Ed Magedson at p. 33 (emphasis added). "I am aware that a lawsuit has been filed Lacks foundation; hearsay against Xcentric and others in which relates to the extent it describes to the following Reports: 417493. 423987, the contents of Xcentric's 457433, 502429, 564331, and 571232. I records; Best Evid. Rule; understand that according to Xcentric's irrelevant to the extent records, I was the content monitor who testimony relates to "one reviewed one or more of these reports before or more" reports, rather they were posted to the site." than specifying the reports. "I have personally reviewed each of these Lacks foundation; lack of reports" personal knowledge as to whether "each of these" refers to "one" or "more" of Reports 417493. 423987, 457433, 502429, 564331, and 571232 "Nor do I have information that such reports Irrelevant. According to may have been created or altered by another the 30(b)(6) Deposition of employee or agent of Xcentric." Xcentric Venutres, LLC, Xcentric employs "six or eight" workers that "monitor the website." Deposition of Xcentric Ventures LLC 30(b)(6) witness at p. 186.

Plaintiff's Evidentiary Objections

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DECLARATION OF LYDIA CRAVEN In addition to the specific evidentiary objections below, the entire declaration of Lydia Craven should be stricken under the automatic exclusion sanction of Federal Rule 37 for Defendants' failure to identify the witness in their Initial Rule 26(a)(1)(A) disclosures dated April 21, 2010 and not supplemented to date. See Borodkin Dec. at ¶¶3-4, Ex. 1. Para. Testimony ¶¶4, "My job is to remove the following 5 information from new postings: personal financial information, credit card numbers, bank account numbers, social security numbers, obscenities, and threats of violence." "Except as described in the previous paragraph, I am not permitted to, nor do I, change or add any content to (1) any posting; (2) any title or heading of any posting' and/or (3) any other part of the Rip-off Report website." Objections Lacks foundation; Lacks credibility (Fed. R. Evid. 806) because Ed Magedson stated that content monitors "are supposed to redact foul language, social security numbers, something I forgot to tell you last week, which would be links to competitive business." Rough transcript of Deposition of Ed Magedson at p. 33 (emphasis added). "I am aware that a lawsuit has been filed Lacks foundation; hearsay against Xcentric and others in which relates to the extent it describes to the following Reports: 417493. 423987, the contents of Xcentric's 457433, 502429, 564331, and 571232. I records; Best Evid. Rule; understand that according to Xcentric's irrelevant to the extent records, I was the content monitor who testimony relates to "one reviewed one or more of these reports before or more" reports, rather they were posted to the site." than specifying the reports. "I have personally reviewed each of these Lacks foundation; lack of reports" personal knowledge as to whether "each of these" refers to "one" or "more" of Reports 417493. 423987, 457433, 502429, 564331, and 571232 "Nor do I have information that such reports Irrelevant. According to may have been created or altered by another the 30(b)(6) Deposition of employee or agent of Xcentric." Xcentric Venutres, LLC, Xcentric employs "six or eight" workers that "monitor the website." Deposition of Xcentric
26

¶6

¶7
22 23 24 25

¶7
26 27 28

Plaintiff's Evidentiary Objections

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Ventures LLC 30(b)(6) witness at p. 186. DECLARATION OF KIM JORDAN

4

In addition to the specific evidentiary objections below, the entire
5

declaration of Kim Jordan should be stricken under the automatic exclusion
6

sanction of Federal Rule 37 for Defendants' failure to identify the witness in their
7

Initial Rule 26(a)(1)(A) disclosures dated April 21, 2010 and not supplemented to
8

date. See Borodkin Dec. at ¶¶3-4, Ex. 1.
9 10

Para. Testimony
11 12 13 14 15 16 17 18 19 20 21 22

Objections

¶¶4, 5

"My job is to remove the following information from new postings: personal financial information, credit card numbers, bank account numbers, social security numbers, obscenities, and threats of violence."

Lacks foundation; Lacks credibility (Fed. R. Evid. 806) because Ed Magedson stated that content monitors "are supposed to redact foul language, social security "Except as described in the previous numbers, something I paragraph, I am not permitted to, nor do I, forgot to tell you last change or add any content to (1) any posting; week, which would be (2) any title or heading of any posting' links to competitive and/or (3) any other part of the Rip-off business." Rough Report website." transcript of Deposition of Ed Magedson at p. 33 (emphasis added). "I am aware that a lawsuit has been filed against Xcentric and others in which relates to the following Reports: 417493. 423987, 457433, 502429, 564331, and 571232. I understand that according to Xcentric's records, I was the content monitor who reviewed one or more of these reports before they were posted to the site." "I have personally reviewed each of these
27

¶6
23 24 25 26 27 28

Lacks foundation; hearsay to the extent it describes the contents of Xcentric's records; Best Evid. Rule; irrelevant to the extent testimony relates to "one or more" reports, rather than specifying the reports. Lacks foundation; lack of
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¶7

Plaintiff's Evidentiary Objections

1 2 3 4 5

reports"

personal knowledge as to whether "each of these" refers to "one" or "more" of Reports 417493. 423987, 457433, 502429, 564331, and 571232 Irrelevant. According to the 30(b)(6) Deposition of Xcentric Venutres, LLC, Xcentric employs "six or eight" workers that "monitor the website." Deposition of Xcentric Ventures LLC 30(b)(6) witness at p. 186.

¶7
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"Nor do I have information that such reports may have been created or altered by another employee or agent of Xcentric."

DATED: June 14, 2010

Respectfully submitted,

By: /s/ Lisa Borodkin DANIEL F. BLACKERT LISA J. BORODKIN Attorneys for Plaintiffs, Asia Economic Institute LLC, Raymond Mobrez, and Iliana Llaneras

Of counsel: Timothy M. Hoffman

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