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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USCsLaw School Mail - Fwd: Asia Economic Institute v. Xcentric al A ia Economic Institute et al v. Xcentric Ventures LLC et Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4D89991a9&vi29 ... 8 oc. 87 Att. ew John Paschal <john.paschal.2012@lawmail.usc.edu> Fwd: Asia Economic Institute v. Xcentric Ventures (C. D. Cal. 10-cv-1360) Motion to Compel Deposition of Edward Magedson and Xcentric Ventures LLC Lisa Borodkin <lisa_borodkin@post.harvard.edu> Fri, Jul 2, 2010 at 7:47 PM To: alexandra@asiaecon.org, kristi@asiaecon.org, Jack Paschal <jack.paschal.2012@lawmail.usc.edu>, iliana@asiaecon.org, raymond@asiaecon.org ---------- Forwarded message ---------From: Lisa Borodkin <lisa_borodkin@post.harvard.edu> Date: Fri, Jul 2, 2010 at 7:46 PM Subject: Asia Economic Institute v. Xcentric Ventures (C. D. Cal. 10-cv-1360) Motion to Compel Deposition of Edward Magedson and Xcentric Ventures LLC To: celia_anglon-reed@cacd.uscourts.gov Cc: "<david@ripoffreport.com>" <david@ripoffreport.com>, Maria Crimi Speth <mcs@jaburgwilk.com>, "paul@berra.org" <paulsberra@gmail.com>, Daniel Blackert <blackertesq@yahoo.com> Dear Ms. Anglon-Reed, We represent the Plaintiffs in Asia Economic Institute LLC et al. v. Xcentric Ventures LLC et al, C. D. Cal. Civil Case No. 10-cv-1360. On June 24, 2010, this Court held a hearing on discovery issues and issued an order providing in part that "Plaintiffs may continue the deposition of Defendant Magedson, as discussed at the hearing." DN-82 at 2 (emphasis added). A copy of the June 24, 2010 Order is attached for the Court's ease of reference. Plaintiffs now request that the Court order (1) Defendants to produce Defendant Magedson for further deposition, on a date between July 5 and July 8 if possible and (2) that Defendant Magedson provide answers at deposition under oath on the following topics and on reasonably related follow up questions, and (3) produce and and answer questions at deposition about the documents identified in Plaintiffs' June 25, 2010 letter. I. Continued Deposition Plaintiffs have requested a date to continue Defendant Magedson's deposition. Despite the Court's Order, Defendants will not schedule a date for the continued deposition of Defendant Magedson. A continuation of the deposition of Defendant Magedson is essential. There are still necessary facts pertaining to the extortion claim set for trial on August 3, 2010 that Defendants have refused to answer. These are outlined in more detail in section II, below. The deposition would ideally be continued prior to July 12, 2010, the hearing date on Defendants' pending motion for summary judgment as to all claims in this action. See DN-81. (copy attached). II. Topics for Continued Deposition On June 25, 2010 and July 2, 2010, Plaintiffs and Defendants exchanged letters, as ordered by the Court, on the topics on which Plaintiffs request further examination of Defendant Magedson. (copies attached) 1 of 11 Dockets.Justia.com 7/8/2010 5:36 PM USC Law School Mail - Fwd: Asia Economic Institute v. Xcentric Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4889991a9&view... On July 2, 2010, the parties met and conferred telephonically in good faith to narrow the discovery dispute. The parties were successful in eliminating all but 4 of the 21 disputed topics identified in the June 25 and July 2 letters, excluding the deposition document subpoena requests (discussed in III, below). The topics on which the parties are unable to reach agreement are (numbering is from Defendants' July 2, 2010 letter): T opics 7 and 9 (Number of participants in the Corporate Advocacy Program ("CAP") and means of soliciting participants) On June 2, 2010, Plaintiffs took the 30(b)(6) deposition of Defendant Xcentric Ventures LLC, through Xcentric's designee, Edward Magedson. Plaintiffs sought information from Xcentric regarding the nature and extent of CAP and how many participants become enrolled in CAP. "Q No question pending. 6 Now, when you ask -- when Xcentric asks 7 for a 36-month commitment through these contracts, who 8 exactly asks for the commitment from -- who at 9 Xcentric -- strike that. 10 When Xcentric asks for a 36-month 11 commitment through a contract, who at Xcentric asks for 12 that commitment? 13 A Me. 14 Q You. Anyone else? 15 A No. 16 Q No. Just you? 17 A Just me. 18 Q Okay. How many of these contracts have you 19 sent out and reviewed? How many -- strike that. 20 How many of these contracts have you 21 been involved with? By you, I mean Xcentric. 22 A Without a protective order, I don't want to 23 answer that question. 24 Q So you are refusing to answer it? 25 A Without a protective order, I don't want to 0122 1 answer that question. 2 Q I'm not asking you about specific people. I'm 3 not asking you about specific businesses, no addresses, 4 no nothing, just a number. That's it. 5 A No, because -- I'm not going to explain why. 6 But it's -- it's already caused a problem in the past, 7 and I'm not going to explain -- I'm not going to give 8 that unless there is a protective order in place." June 2, 2010 Transcript, 121:5-23. and also: "Q How many people are in the CAP? 22 MR. GINGRAS: Objection. Calls for 23 information that would be subject to a protective 24 order, and I'm going to instruct the witness not to 25 answer that question. 2 of 11 7/8/2010 5:36 PM USC Law School Mail - Fwd: Asia Economic Institute v. Xcentric Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4889991a9&view... 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 1 Q BY MS. BORODKIN: Are there so many people in the CAP that you can't remember whether the thing you just described has ever happened? A Are there so many people in the program -- oh, for the reason -- okay. You are back to the question -- then what is your -- you went -- you asked a question but now you are back to something. I want to just make sure what you are asking. Q The situation where a complainer is so persistent that even after an enrolled member in CAP has taken efforts to satisfy them, and Xcentric has also sent this letter to them, that they insisted on having their report posted on Ripoff Report. That's the thing. A And the question is? Q Are there so many members in CAP that you don't remember if that's ever happened? A I don't know if that would be the case. Just -- my memory with certain things would just not be able to -- there is certain things I remember good and certain things not. But like I told you, I'm not sure. There could be -- and I'm almost thinking that there was, because I remember doing some sort of like a comment about something and I -- but -- and I think it could have been only one time. And if it was, it was years ago. I'm talking years ago." June 8, 2010 Transcript, 29:21-31:2. In the July 2, 2010 telephone conference, Defendants offered to stipulate that there are at least two members in CAP. Defendants' proposal is not a sufficient substitute for the lines of questioning that were closed off regarding CAP. The nature, size, extent and continuity of CAP is material to the RICO claim on whether there is a pattern of predicate acts of extortion, whether the pattern is open-ended and has continuity. T opic 16 (Defendants' Use of Cell Phones to Conduct Xcentric Business) Plaintiffs sought testimony regarding Defendant Magedson's use of cell phones to conduct Xcentric business. Specifically, Plaintiffs seek to inquire whether there are any other explanations or conversations relevant to the process of how Xcentric enrolls members in CAP. "18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 Q BY MS. BORODKIN: Do you use a cell phone? A I use a cell phone, yes. Q Do you use more than one cell phone? A I don't want to answer any of these questions regarding cell phones. Q Why not? A Because I'm not looking to be tracked or anything like that. I mean, there's a whole host of reasons why. Q I'm asking because a big part of your defense is that you know from taped telephone calls to Xcentric that certain allegations made by the plaintiffs are false, and I'm trying to discover whether there's another explanation for some of these allegations. A There could be no explanation, because no one 3 of 11 7/8/2010 5:36 PM USC Law School Mail - Fwd: Asia Economic Institute v. Xcentric Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4889991a9&view... 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 would ever ask somebody for money by phone. Nobody would threaten anybody for money by phone, and it's already been proven that by your client's own little detailed little notes with his wife listening on the phone. They both have the same dates and times and everything of exactly what was said on those dates and times, so we know there is really -- there is no other time that this could have been. So I understand that counsel is trying to do the best job they can. My answer is no, I'm not giving out any information. There is no protective order, and I don't call -- I don't call clients. I've had that rule for a long time. I just don't call them, so it ain't gonna -- there's no -- there's nothing there. There couldn't be anything there. Q Without identifying the carrier or the number, do you use more than one cell phone? A Do I use -- what I do personally and what Xcentric does is two different things, and I just -- I just -- I don't want to answer any of these questions. Q Okay. Today, you are Mr. Magedson. You are not Xcentric. I don't hear an objection from your lawyer, so you can answer. A You are not my lawyer either. Q True. A Is it okay? I'm not -- I think he's not objecting because I've already given my answer that I'm not going to answer any of these questions, so there is nothing for him to object to. He didn't say, no, Ed, you can answer those. MR. GINGRAS: Ed, to the extent it matters, I ratify your objection and agree with it. Without a protective order, these questions ask for information that could be used to harass Mr. Magedson that has caused him to be harassed in the past. We believe it -MS. BORODKIN: Okay. That's enough, David. No speaking objections under California Rules of Court, CCP in the federal rules. If you want to have a dispute about it, we'll make another motion. Please do not coach the witness anymore. THE WITNESS: I already gave my answer. He didn't -- how could he have coached me? I already gave my answer. You asked and I answered you, so I don't even understand what he was saying, so he didn't -- he wasn't coaching me. Q BY MS. BORODKIN: Me neither. And there was no question pending, so I don't see any reason for him to have added anything anyway. A Well, because you seemed to have questioned whether or not -- like you were trying to tell me, no, it's okay if I answer because he wasn't objecting. Q If your answer is you are not answering, then we'll make a motion to compel. A All right. Q The cell phone that you say you used, is that a business cell phone? A Yes. 4 of 11 7/8/2010 5:36 PM USC Law School Mail - Fwd: Asia Economic Institute v. Xcentric Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4889991a9&view... 16 17 18 19 20 21 22 23 24 25 1 2 Q Does Xcentric pay for the bill? A Yes. Q Is it used exclusively for Xcentric business? A Yes. Q Okay. I'm going to mark as -A No. Excuse me. Is it used for -- exclusively for Xcentric business? No. I've made personal calls. I mean, you know, you get calls just like you do at the office. You know, your children will call; your wife will call; your babysitter will call or whatever, so no. The answer would be, no, it's not used strictly for business." June 6, 2010 Transcript 86:16:-90:2. Defendants proposed that the Court review Defendant Magedson's phone records in camera and compare them to a list of numbers provided by Plaintiffs. Plaintiffs proposed that Defendant Magedson review his phone records to refresh his memory and then testify. Defendants' proposal does not account for incoming calls to Mr. Magedson's cell phones. Also, it does not permit follow-up questioning on whether Defendant discusses CAP with other potential enrollees on Xcentric's business cell phone line. T opic 18 (Positive Reports) Plaintiffs allege that Defendants cause overwhelmingly negative material to be posted about business and people, and cause the negative material to be displayed prominently on Defendants' website and in Internet search results, unless the subject enrolls in CAP. For enrollees in CAP, Plaintiffs allege that Defendants cause positive material to be displayed more prominently on their website and in Internet search results than non non-CAP members. Plaintiffs allege this amounts to attempted extortion under California law. Plaintiffs sought testimony on what positive matter Defendants cause or permit to be posted: "Q 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 You think Ripoff Report is a negative complaint site? A It's -- people post negative and positive on Ripoff Report. Q What kind of positive do they post? MR. GINGRAS: Foundation. Q BY MS. BORODKIN: You can answer it. A Yeah, could you be more specific? Q Whatever you were referring to. A They file positive rebuttals to any kind of a complaint. They are filed -- as we sit here, they are being filed. Q Anything else? A Anything else? Q That's positive that gets posted on Ripoff Report that you can think of? A Positive. A positive is positive. I mean, I don't know how you want me to elaborate. Q Well, besides rebuttals, who are written by the subjects of the reports, are there any other positive kinds of things that are posted on Ripoff Report? A Sure. There is stuff that we post about the CAP members. 5 of 11 7/8/2010 5:36 PM USC Law School Mail - Fwd: Asia Economic Institute v. Xcentric Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4889991a9&view... 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 Q Aside from the things that the subjects of the Ripoff reports post as rebuttals and the things that you post as CAP reports and investigation results, are there any other -- are there any other kinds of positive things that are posted on RipoffReport.com? A Those positive things can include a number of different things, which I can't even imagine, so I'm not sure if this is a loaded question or not. I don't know. I can't sit here -- I could start guessing what kind of things could be posted, but I'm sure birth announcements and happy birthdays -Q I don't want you to guess, Mr. Magedson. A Okay. But I don't know. There's no way I know. It's usually positive things, experiences the companies -- consumers would have. Q Have any of those types of things been posted on Ripoff Report? MR. GINGRAS: Foundation. THE WITNESS: All day long. Q BY MS. BORODKIN: Could you give me one example? A No, I wouldn't even -- I wouldn't want to pick on a company or pick out something that's used in this deposition." June 8, 2010 Transcript at 146:7-148:4. Plaintiffs seek testimony about the positive matter that is actually be posted on Defendants' website without having to join CAP. Plaintiffs have only seen rebuttals, which are secondary to the negative reports and feature less prominently on Defendants' web site and in Internet search results. Defendants advised Plaintiffs that they believe the question was asked and answered, is irrelevant to the extortion claim, that Plaintiffs can view it on the Internet, and that the information could better be sought by written discovery. Plaintiffs contend these responses are not adequate because they do not bind the Defendants, and are unduly burdensome and time-consuming. III. Documents for Continued Deposition Plaintiffs served a deposition document subpoena at around the same time as the June 8, 2010 deposition. Following the July 2, 2010 conference of counsel, Plaintiffs request production of the following 5 out of the original 9 categories, and request permission to examine Defendant Magedson on them at the continued deposition: "1.Emails sufficient to show the typical manner in which Xcentric Ventures gives price quotes for enrollment and monthly fees for the Corporate Advocacy Program ("CAP"). 3. The second questionnaire that Xcentric provides to potential CAP members prior to enrollment ("Second Questionnaire"), as identified in the 30(b)(6) deposition of Xcentric. 4. Documents sufficient to evidence a typical contract between Xcentric and a CAP member (which can be one of the CAP members identified in the 30(b)(6) deposition of Xcentric). 5. Documents sufficient to evidence a typical example of the responses to the Second Questionnaire by a successful CAP applicant that ultimately enrolled in CAP. 9. Documents sufficient to evidence a typical request from a person/company to be enrolled in CAP, after having been notified of the opportunity to rebut a negative "Ripoff Report," as identified at the 30(b)(6) deposition of 6 of 11 7/8/2010 5:36 PM USC Law School Mail - Fwd: Asia Economic Institute v. Xcentric Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4889991a9&view... Xcentric." These documents and follow-up questions are necessary because, inter alia, Xcentric failed to produce a prepared witness at the 30(b)(6) deposition on the exact mechanics of enrolling in CAP: "Q BY MR. BLACKERT: Okay. Walk me through how 14 it -- the steps -- how it gets from the rebuttal 15 e-mails to the business actually becoming enrolled in 16 the CAP. 17 A You would have to ask that again. 18 Q Okay. Walk me through the steps after the 19 rebuttal e-mail that the business gets enrolled into 20 the CAP program. 21 MR. GINGRAS: Objection. I don't think 22 this accurately reflects his testimony. 23 THE WITNESS: I'm not even understanding 24 your question. 25 Q BY MR. BLACKERT: Okay. Fine. I will 0123 1 rephrase it. 2 MR. GINGRAS: I think we first need 3 to clarify what you are referring to as the rebuttal 4 e-mail. We have talked about filing rebuttals and then 5 sending e-mails. Those are two different things. 6 Q BY MR. BLACKERT: You testified earlier that 7 you -- strike that. 8 You testified earlier that you send an 9 e-mail after -- you send an e-mail suggesting that an 10 individual file a rebuttal, correct, an individual at a 11 business? 12 A Correct. 13 Q What happens next? 14 A I can't speculate on what happens next. I 15 don't know what you mean. What do you mean what 16 happens next? 17 Q If the individual or business wants to go 18 forward with the CAP program -19 A Okay. 20 Q -- what's your next contact with them? 21 A They want to go next? 22 Q Yes. 23 A If they say they want to join the program, I 24 send them a more detailed questionnaire about the 25 company. 1 Q Is that questionnaire different from the 2 questionnaire on your website, on Ripoff Report's 3 website? 4 A Yes. 5 Q It is different. Okay. 6 And you said it's more detailed? 7 A Yes. 8 Q How is it more detailed? 9 A It gets into -- and this is still -- they 10 haven't been approved yet. 11 Q Right. 12 A So it depends on how they answer the questions 13 to these -- to this e-mail, but there is questions 14 like, why did you get complaints? What was the cause 1 7 of 11 7/8/2010 5:36 PM USC Law School Mail - Fwd: Asia Economic Institute v. Xcentric Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4889991a9&view... 15 16 17 18 19 20 21 22 23 24 25 of the complaints? What improvements? I want -- I want information right now, you know. How are you going to make -- what improvements have you made? What was -- what were the problems and what are you doing to avoid those problems in the future? The name of the person who will be signing the agreement. What's the name of the company that the agreement's gonna be in? Why do you feel -- I think it's, why do you feel -- I forget. I can't. Q That's fine. A I can't remember. I can't remember." June 2, 2010 Transcript at 122:14-25-124:25. Also, Defendant Magedson identified that such documents exist, but would not produce or testify as to their contents: "Q 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 Okay. Looking at this page, the fourth and last page of Exhibit 1 [the June 7, 2010 document deposition subpoena], category number three, the second questionnaire that Xcentric provides to potential CAP members, is that the questionnaire we talked about earlier today that is contained in the body of an e-mail? A The second -- that questionnaire happens once somebody has let us know after they've received the rates that says, wow, okay, I can afford this. This is fine, or, you know, can you do anything about the payment schedule? Can you give me a break? Oh, I love it. No problem. Please, I want to hurry up. Please, I want to join. What do I have to do? The e-mail subject box, if I didn't forget, gets -- says questions, and then I copy and paste a list of questions that are there. It's the same standard questions that I ask. So in answer to your question, I think you're wrong. No, it's not until after they've seen the rates and they tell us, oh, wow, I can afford it; can't afford it. Can I get a break? Can I make payments? Can I whatever? Q How many questionnaires total does a prospective CAP member have to fill out before they become -- before they are offered the CAP agreement: one, two or three? A Well, before the agreement there is questions. Q How many questionnaires? A I think there's two. Yeah, two. They fill out the application, the original one. That's the only one that's online. Now, I could ask them some questions -- after looking over and seeing what type of business it is, there could be some questions I ask them in the e-mail which I -- comes out of my head what I think that I may have to ask them, and then there's the one that -- like I said, that's half the rates. Q Okay. So setting aside the middle one that you talked about -A I don't know what you mean by middle one. Q Well, you said you might have to ask them some questions in e-mail -- 8 of 11 7/8/2010 5:36 PM USC Law School Mail - Fwd: Asia Economic Institute v. Xcentric Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4889991a9&view... 4 A Right, before they -5 Q -- off the top of your head or out of your 6 head or something to that effect. 7 A Right. Even before I even send them the 8 questionnaire, that's the final questionnaire before I 9 fill out the agreement." June 8, 2010 Transcript 104:13-106:9. Defendant Magedson has stated that he will produce the CAP contract if his attorneys permit him: "7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 Q Okay. Why don't we go back to Exhibit 1, the last page and fourth page of Exhibit 1 again. Here, I think it's this. A Oh, thank you. Q Sure. Topic number three, the second questionnaire, can we -- could you point out in Exhibit 8 where you think the second questionnaire might be, if it's there. A I don't think it's there because -- I mean, I can't remember. Like I told you, I thought this was somebody that maybe just signed up last week. So, you know, there's a lot of companies out there with similar names. That's ridiculous. So in my mind being -what's the word I'm looking for -- dealing with so much, it's easy for me to make a mistake. Q Did anyone sign up for CAP last week? A No, I don't know. No, no, I don't have -- no, they didn't sign up. I don't know. I could send out a contract, and I can get it back three months later. Q Sorry. A So what's the other question? Q Where's the second questionnaire? A I guess it wouldn't be here because -- unless I'm missing it, but I don't think I am. Unless -because -- I don't know. You may know better than I. Unless they asked and they said that they wanted -they wanted an agreement and they are ready to go and sign up, before they would get the agreement, that questionnaire would be there. So I don't see it here. Q Is the second questionnaire anywhere in Exhibit 9? A Exhibit 9, are you sure 9? That's 8. Q I think it's this. A Okay. You didn't do a good job in blocking out [REDACTED]'s name. Q Oh, neither did you. A I wasn't supposed to block it out. Q That's okay. A It kind of looks like a repeat. Maybe she got this sent twice. But, no, I don't see the second questionnaire there. Q Do you have the second questionnaire somewhere? A Not -- no. No. I shouldn't be joking. I'm sorry. I can't help it. I'm sorry. I shouldn't do that. Okay, no, I don't. I mean, I don't have it here 9 of 11 7/8/2010 5:36 PM USC Law School Mail - Fwd: Asia Economic Institute v. Xcentric Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4889991a9&view... 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 with me. Q Do you know where one would be? A Cyberspace. No, no, actually, there is no way -- no, I wouldn't have any way to get it, because I have no way to access my e-mail. Q Is it in your e-mail? A I have it. That's the only way I can get it. Q Why can't you get to your e-mail? A Because my e-mail is such that I can't access it. I wouldn't want to be able to have it accessed. For security reasons, it's not accessible. Q Can Ben Smith access it? A No, no, he can't even. Q Who can access it? A (Indicating.) Q You? A Let the record show I raised my hand. Q So if you were to access it, could you find the second questionnaire? A Yeah, but I don't have my e-mail with me. Q Oh, you mean with you today? A Right. I don't have access. I don't have --I didn't bring anything -- I didn't bring a computer with me, and I'd have to be on my computer. Q It's in your e-mail, you are saying, and not here? A Yeah. Q And would you access your e-mail from your office? A Yes. Q Okay. Is that where the contract is, too? A That's where a contract -- yeah, of course. Yeah, uh-huh. But I don't know. Like I said, I thought I was mistaking her for somebody else, but maybe I'm not. So I -- there could be a contract that goes with this. I don't know. Because there is no way for me to -- there's too much going on for me to remember that. Whatever. Q I don't think you have a contract with her. But my question is, a contract between Xcentric and a CAP member, which can be one of the ones that we talked about last week, do you know where one of those would be? A (No oral response.) Q Oh, you nodded. A Of course. Well, it would be a couple of things. One is, I don't know without a protective order if I want that to be -- to be accessible. And so if there's, you know, proper protective order, I'm told by my attorneys I can -Q Don't tell me what your attorneys said to you, please. A No, I didn't say -- I said, and if my attorneys tell me that I can, I would. I wasn't telling you what my attorneys said. Q Okay. So I'm not asking you about conversations between you and your attorneys, and I'm not asking you what the contract says; I'm just asking 10 of 11 7/8/2010 5:36 PM USC Law School Mail - Fwd: Asia Economic Institute v. Xcentric Venture... https://mail.google.com/a/lawmail.usc.edu/?ui=2&ik=a4889991a9&view... 12 13 14 15 16 you, following up on last week, the type of contract you described today, Ed -- I'm sorry, forgive me -today, Mr. Magedson, you know where that might be, correct? A Yes." June 8, 2010 Transcript at 113:7-117:16. Plaintiffs request that this Court order Defendants attorneys to have Defendant Magedson produce the Second questionnaire, CAP contract and related emails, and to permit Plaintiffs to examine Defendant Magedson about them. Plaintiffs have no objection to Defendants setting forth their version of today's telephone conference as a reply to this email. Plaintiffs counsel are available for a telephonic hearing at any time. Respectfully submitted, Lisa J. Borodkin cc: David Gingras, Maria Crimi Speth, Paul Berra, Daniel Blackert (by email) -Lisa J. Borodkin lisa@lisaborodkin.com 323-337-7933 -Lisa J. Borodkin lisa@lisaborodkin.com 323-337-7933 4 attachments June 24 2010 Order on Discovery 10-cv-1360.pdf 14K June 24, 2010 Order Continuing MSJ Hearing 10-cv-1360.pdf 9K June 25, 2010 letter AEI to Xcentric.pdf 84K July 2, 2010 letter Xcentric to AEI.pdf 1 6 7K 11 of 11 7/8/2010 5:36 PM

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