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

Filing 87

EX PARTE APPLICATION to Continue the determination of, or denying, Defendants' Motion for Summary Judgment from July 12, 2010 to At the Court's discretion Re: MOTION for Summary Judgment as to Entire Case 40 , EX PARTE APPLICATION to Enforce Order to Compel Continued Deposition of Defendant Edward Magedson, EX PARTE APPLICATION for Sanctions Local Rule 83.7, Local Rule 37-4, and this Court's inherent authority filed by Plaintiffs Asia Economic Institute, Iliana Llaneras, Raymond Mobrez. (Attachments: # 1 Exhibit 1 to Declaration of Lisa J. Borodkin, # 2 Exhibit 2 to Declaration of Lisa J. Borodkin, # 3 Exhibit 3 to Declaration of Lisa J. Borodkin, # 4 Exhibit 4 to Declaration of Lisa J. Borodkin, # 5 Exhibit 5 to Declaration of Lisa J. Borodkin, # 6 Exhibit 6 to Declaration of Lisa J. Borodkin, # 7 Exhibit 7 to Declaration of Lisa J. Borodkin, # 8 Exhibit 8 to Declaration of Lisa J. Borodkin, # 9 Exhibit 9 to Declaration of Lisa J. Borodkin, # 10 Exhibit 10 to Declaration of Lisa J. Borodkin, # 11 Exhibit 11 to Declaration of Lisa J. Borodkin, # 12 Exhibit 12 to Declaration of Lisa J. Borodkin, # 13 Exhibit 13 to Declaration of Lisa J. Borodkin, # 14 Exhibit 14 to Declaration of Lisa J. Borodkin, # 15 Exhibit 15 to Declaration of Lisa J. Borodkin, # 16 Exhibit 16 to Declaration of Lisa J. Borodkin, # 17 Exhibit 17 to Declaration of Lisa J. Borodkin, # 18 Exhibit 18 to Declaration of Lisa J. Borodkin, # 19 Exhibit 19 to Declaration of Lisa J. Borodkin, # 20 Exhibit 20 to Declaration of Lisa J. Borodkin, # 21 Exhibit 21 to Declaration of Lisa J. Borodkin, # 22 Exhibit 22 to Declaration of Lisa J. Borodkin, # 23 Exhibit 23 to Declaration of Lisa J. Borodkin, # 24 Exhibit 24 to Declaration of Lisa J. Borodkin, # 25 Exhibit 25 to Declaration of Lisa J. Borodkin, # 26 Exhibit 26 to Declaration of Lisa J. Borodkin, # 27 Exhibit 27 to Declaration of Lisa J. Borodkin, # 28 Exhibit 28 to Declaration of Lisa J. Borodkin, # 29 Exhibit 29 to Declaration of Lisa J. Borodkin, # 30 Exhibit 30 to Declaration of Lisa J. Borodkin, # 31 Exhibit 31 to Declaration of Lisa J. Borodkin, # 32 Exhibit 32 to Declaration of Lisa J. Borodkin, # 33 Exhibit 33 to Declaration of Lisa J. Borodkin, # 34 Exhibit 34 to Declaration of Lisa J. Borodkin, # 35 Exhibit 35 to Declaration of Lisa J. Borodkin, # 36 Exhibit 36 to Declaration of Lisa J. Borodkin, # 37 Exhibit 37 to Declaration of Lisa J. Borodkin)(Borodkin, Lisa)

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Gmasla Economic Institute et al v. -Xcentric Ventures LLC et al A i i - Important =Meet and Confer AEI v. Xcentric https://mail.google.com/mail/?ui=2&ik=0d9198f21b&viewc.p87 q=da2i... Do = t& Att. v Lisa Borodkin <lborodkin@gmail.com> Im portant =Meet and Confer - AEI v. Xcentric Raymond <raymond@asiaecon.org> Wed, Apr 21, 2010 at 3:11 PM Reply-To: raymond@asiaecon.org To: Lisa Borodkin <lborodkin@gmail.com>, Lisa Borodkin <lisa_borodkin@post.harvard.edu> FYI Important From: "David Gingras" <david@ripoffreport.com> Date: Wed, 21 Apr 2010 14:43:38 -0700 T o: 'Daniel Blackert'<blackertesq@yahoo.com> Cc: 'Maria Crimi Speth'<mcs@jaburgwilk.com> Subject: RE: Meet and Confer - AEI v. Xcentric Dan, Thanks, but we don't need to meet and confer re: Rule 26(a) disclosures; these are simply done by both sides as a matter of course without any need to meet and confer. Our initial disclosures are attached and we will supplement them as time goes by. We do, however, need to meet and confer re: a Rule 26(f)(3) discovery plan. Since you represent the plaintiff, it is customary for you to create the first draft of the plan, but since I already had some notes on this, I went ahead and added my comments. Below are the areas that need to be covered (this comes right out of Rule 26(f)(3)). Why don't you review this stuff and add your clients' position where appropriate and then we can meet and confer on the phone to discuss anything that needs discussion. April 27 is actually no good for me unless you want to meet and confer before 11am or after 3pm. Also, my suggestion is that we meet and confer sooner even later today, tomorrow , or Friday. This process shouldn't take very long, so there's no reason to put it off for a week or longer. Also, FYI as noted in my comments to the plan, I would like to propose that given the expedited schedule, we agree to answer discovery faster than the usual 30 days. For my part, I can probably turn around any number of reasonable roggs or RFPs within about 5 business days or less, though I am okay with agreeing to use 10 calendar days for both sides. Of course, if any requests are particularly lengthy, we could agree to a reasonable extension of time (maybe 5 additional calendar days) when appropriate, but allowing 30 full days for responses to simple requests makes no sense given the short time available. Finally, please let me know what dates your clients are available for deposition. In that regard, I think we need to discuss how much time will be needed for each depo and whether we should agree to bifurcate the depos in the same manner as the trial. FYI in Arizona, depositions are normally limited by rule to no more than 4 hours. Although we get 7 hours in federal cases, I normally like to go very, very quickly and complete my depos in as little time as possible. In this case, however, I don't think it makes sense to require me to complete the depo of every possible issue since the trial won't cover a substantial number of issues. Thus, I suggest that we simply agree that both sides can divide the 7 hour time between two dates if they want to do so. This would help me to conduct a quick depo of your clients as needed for the issues to be tried in August, and then if the case continues beyond then, I would complete their depos on other issues at a later time. Anyw ay, talk to your clients about these points and let me know what you think. (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; Plaintiffs' Position: th 1 of 4 Dock7/t8/.2010ia.com e s Just 2:16 AM Gmail - Important =Meet and Confer - AEI v. Xcentric https://mail.google.com/mail/?ui=2&ik=0d9198f21b&view=pt&q=davi... Defendants' Position: Defendants served their initial disclosures on April 21, 2010. Defendants will supplement as necessary. (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; Plaintiffs' Position: Defendants' Position: Based on the court's order bifurcating this matter, Defendants believe that discovery should be initially focused on the matters set for trial in August. However, unless the court enters an order staying discovery as to any other matters or unless Plaintiffs agree to a stay, Defendants intend to pursue discovery as to each issue in the case. Based on experience and assuming no stay, Defendants intend to pursue discovery as to each of the following areas: Any facts giving rise to Plaintiffs' claims; Any facts relating to Plaintiffs' damages; Evidence relating to the truth or substantial truth of the statements at issue; Evidence relating to Plaintiffs' credibility. (C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; Plaintiffs' Position: Defendants' Position: N/A (D) any issues about claims of privilege or of protection as trial-preparation materials, including -- if the parties agree on a procedure to assert these claims after production -- whether to ask the court to include their agreement in an order; Plaintiffs' Position: Defendants' Position: In the event Plaintiffs wish to obtain discovery of information that may lead to the identity of the author(s) of the postings at issue in this case, Defendants note this information is subject to First Amendment privilege. See Mobi l i sa v. Doe, 217 Ariz. 103 (App. 2007); UMG Recordings, Inc. v. Does 14, 2006 WL 1343597, *2 (N.D.Cal. 2006). As such, Defendants will not produce any such privileged information absent compliance with the standards set forth in Mobilisa v. Doe and related cases. (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and Plaintiffs' Position: Defendants' Position: Defendants request that the parties agree to expedited discovery responses (10 days from date of service with short reasonable extensions if necessary) for all requests under Rules 33, 34 and/or 36. (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). Plaintiffs' Position: Defendants' Position: 2 of 4 7/8/2010 2:16 AM Gmail - Important =Meet and Confer - AEI v. Xcentric https://mail.google.com/mail/?ui=2&ik=0d9198f21b&view=pt&q=davi... To the extent Plaintiffs intend to seek discovery relating to Defendants' financial condition, such information is subject to the protections of Cal. Civ. Code 3295(c); see also Jabro v. Superior Court, 95 Cal.App.4th 754, 115 Cal.Rptr.2d 843 (4th DCA 2002) (providing plaintiff who seeks punitive damages is prohibited from seeking discovery of defendant's financial condition absent showing of substantial probability that plaintiff will prevail on claim); see also Larri va v. Montiel, 143 Ariz. 23 (App. 1984) (setting even higher standard under Arizona law). As such, although a protective order is not strictly required under Rule 26(c) (because 3295(c) expressly prohibits such discovery without an order granting leave), Defendants may nevertheless move for an order under Rule 26(c) in the event plaintiffs request discovery of financial evidence without leave of court. David Gingras, Esq. General Counsel Xcentric Ventures, LLC http://w ww .ripoffreport.com/ David@RipoffReport.com http://w ww .ripoffreport.com/ PO BOX 310, Tempe, AZ 85280 Tel.: (480) 668-3623 Fax: (480) 639-4996 From: Daniel Blackert [mailto:blackertesq@yahoo.com] Sent: Wednesday, April 21, 2010 11:07 AM To: david gingras Cc: kRISTI.JAHNKE@GMAIL.COM; alex z Subject: Meet and Confer David, Per the Court's ORDER on the record at the Hearing on April 19, 2010, are you available at 11:00 a.m. on Tuesday April 27, 2010, to meet and confer regarding initial disclosures on the top ics covered in FRCP 26(a)(1)(a)? We can do this via telephone. Here is a copy of the Rule: (a) Required Disclosures. (1) Initial Disclosures. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information -- along with the subjects of that information -- that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; 3 of 4 7/8/2010 2:16 AM Gmail - Important =Meet and Confer - AEI v. Xcentric https://mail.google.com/mail/?ui=2&ik=0d9198f21b&view=pt&q=davi... (ii) a copy -- or a description by category and location -- of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party -- who must also make available for inspection and copying as under Rule 34 the documents or other eviden tiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. If this works for you, then please confirm it. If this does not work, then please propose an alternate time and date within the next 3 days. Th ank you. DANIEL F. BLACKERT, ESQ., Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Telephon e (310) 806-3000 Facsimile (310) 826-4448 Daniel@asiaecon.org Blackertesq@yahoo.com AEI v. Xcentric - Defendants' Initial Disclosures.pdf 1 1 7K 4 of 4 7/8/2010 2:16 AM

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