Rackwise, Inc. v. Archbold

Filing 111

AMENDED FINAL PRETRIAL ORDER signed by Senior Judge William B. Shubb on 7/30/2018 ORDERING that by 8/1/18, counsel for defendant shall file and serve any objections to the instructions proposed by Plaintiff. By 8/8/18, counsel for Plaintiff shall fil e and serve any objections to the instructions proposed by defendant and to any proposed form of verdict. The trial is SET for 8/21/18 in Courtroom 5. A Settlement Conference is SET for 8/7/18 at 10:00 AM in Courtroom 8 before Magistrate Judge Edmund F. Brennan. A Further Pretrial Conference is SET for 8/13/2018 at 1:30 PM in Courtroom 5 (WBS) before Senior Judge William B. Shubb.(Washington, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RACKWISE, INC., a Nevada
corporation,

No. 17-cv-797 WBS CKD

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Plaintiff,
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v.

AMENDED FINAL PRETRIAL ORDER

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GUY ARCHBOLD, an individual,
and DOES 1 to 25, inclusive,
Defendants.

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A Final Pretrial Conference was held in this matter,

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pursuant to the provisions of Rule 16(d) of the Federal Rules of

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Civil Procedure and Local Rule 282, on July 2, 2018.

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McLaughlin and Ognian Gavrilov appeared as counsel for plaintiff,

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and Randall Paulson appeared as counsel for defendant.

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the conference and having received plaintiff’s Proposed

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Modifications to the Final Pretrial Order (Docket No. 106) as

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well as defendant’s Objection (Docket No. 108), the court enters

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this Amended Final Pretrial Order:

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Harry

Following

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I.

Jurisdiction – Venue

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Jurisdiction is predicated upon diversity jurisdiction,

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28 U.S.C. § 1332.

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proper.

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II.

Venue is undisputed and is hereby found to be

Remaining Claims

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Plaintiff’s remaining claims for trial are (1)

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declaratory and injunctive relief, (2) conversion, (3) fraud, (4)

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breach of the duty of good faith and loyalty, and (5) tortious

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interference with prospective economic advantage.

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III.

Jury – Non-Jury

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Plaintiff demanded a jury trial multiple times before

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the trial conference, and at the Pretrial Conference, the parties

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and the court contemplated a jury trial on at least some of the

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issues.

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a Notice of Waiver of Jury Trial and contends that defendant

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waived his right to a jury trial, meaning the case should proceed

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to a court trial on all issues.

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However, after the Pretrial Conference, plaintiff filed

The court disagrees.

(Docket Nos. 98, 102.)
Notably, plaintiff agrees that

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the “general rule is that once one party files a jury demand,

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other parties are entitled to rely on that demand for the issues

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it covers, and need not file their own demands.”

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at 2.)

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674, 690 (9th Cir. 1976).

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jury trial, and indeed maintained this demand until after the

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Pretrial Conference, defendant was entitled to rely on this

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demand and was not required to formally demand a jury trial.

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(Docket No. 102

See Calnetics Corp. v. Volkswagen of Am., Inc., 532 F.2d
Because plaintiff made a demand for

Further, once a party requests a jury trial, “[a]
proper demand may be withdrawn only if the parties consent,” Fed.
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R. Civ. P. 38(d) (“Rule 38(d)”), and the trial must be by a jury

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unless “the parties . . . file a stipulation to a nonjury trial

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or so stipulate on the record,” Fed. R. Civ. P. 39(a)(1) (“Rule

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39(a)(1)”).

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in his Pretrial Statement that he did not request a jury trial.

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(See Docket No. 95 at 2.)

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plaintiff’s Notice of Waiver was filed, and made before the

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court’s Pretrial Conference, at which the parties and the court

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contemplated a jury trial on at least some issues, does not

The court notes that defendant specifically stated

However, this statement, made before

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constitute defendant’s unambiguous consent and stipulation to a

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court trial on all issues.

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808, 811 (9th Cir. 1981) (courts “should indulge every reasonable

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presumption against waiver” of trial by jury).

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See Pradier v. Elespuru, 641 F.2d

Plaintiff relies primarily on Reid Brothers Logging Co.

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v. Ketchikan Pulp Co., 699 F.2d 1292 (9th Cir. 1983), in arguing

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that defendant waived his jury demand, but that case is

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inapposite.

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defendants initially opposed the request, moving to strike the

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jury demand.

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one defendant refused to consent to a court trial.

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the non-consenting defendant argued that it was entitled to a

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jury under Rules 38(d) and 39(a).

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that argument, holding that the defendant’s prior “consistent”

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and “persistent” efforts to oppose the jury demand constituted

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waiver of the right to a jury, notwithstanding that defendant’s

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failure to consent or stipulate as required by Rules 38(d) and

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39(a).

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case to its facts, where there was active and consistent

There, the plaintiff demanded a jury and the

Later, the plaintiff withdrew the jury demand and
On appeal,

The Ninth Circuit rejected

Cases citing Reid Brothers have generally limited that

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opposition to a jury trial.

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Supp. 2d 320, 322 (S.D.N.Y. 2008).

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See, e.g., S.E.C. v. Masri, 551 F.

Because plaintiff demanded a jury trial and defendant

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did not actively oppose a jury trial or stipulate to a court

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trial on all issues after plaintiff withdrew his jury demand,

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Reid Brothers is inapplicable.

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for conversion, fraud, breach of the duty of good faith and

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loyalty, and tortious interference with prospective economic

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advantage shall be tried, pursuant to Federal Rule of Civil

Accordingly, plaintiff’s claims

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Procedure 48, before a jury consisting of no less than six and no

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more than twelve members.

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Plaintiff’s claims for declaratory relief and request

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for a permanent injunction will be decided by the court, absent

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any stipulation by the parties regarding any other issues that

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should be decided by the court or the jury.

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IV. Statement of Case, Jury Instructions, Proposed Form of

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Verdict
By July 23, 2018,1 counsel for plaintiff shall lodge

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and serve, pursuant to Local Rule 163, copies of all jury

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instructions that plaintiff requests be given on plaintiff’s

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claims for conversion, fraud, breach of the duty of good faith

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and loyalty, and tortious interference with prospective economic

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advantage.

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and serve a copy of a proposed form of verdict.

At that time, counsel for plaintiff shall also file
Plaintiff’s

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The court notes that it previously set different
deadlines for proposed jury instructions and verdict forms at the
Pretrial Conference. However, given the parties’ filings after
the Pretrial Conference, which delayed the issuance of this
Order, these deadlines have been revised.
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instructions shall include an instruction for every cause of

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action which is to be tried by the jury and set forth every

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element that plaintiff must prove in order to recover on each

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cause of action.

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By August 1, 2018, counsel for defendant shall file and

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serve any objections to the instructions proposed by plaintiff.

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At the same time, counsel for defendant shall lodge and serve,

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pursuant to Local Rule 163, copies of any and all jury

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instructions not already proposed by plaintiff, which defendant

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requests be given.

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shall file and serve a copy of any proposed form of verdict and

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shall also file any objections to plaintiff’s proposed form of

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verdict.

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Also at that time, counsel for defendant

By August 8, 2018, counsel for plaintiff shall file and

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serve any objections to the instructions proposed by defendant

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and to any proposed form of verdict.

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Pursuant to Local Rule 163, any other instructions

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thereafter presented will be refused unless it is shown either:

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(1) that the necessity for the request arose in the course of

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trial; could not reasonably have been anticipated prior to trial

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from the pleadings, discovery or nature of the action; and the

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request for such additional instructions is presented to the

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court as promptly as possible; or (2) that the refusal to give

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such instructions would constitute plain error.

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Likewise, any objections to proposed instructions not

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made in accordance with this order will be overruled as untimely

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unless it is shown either: (1) that the grounds therefor arose in

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the course of trial and the intention to make such objections is
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communicated to the court as promptly as possible, or (2) that

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the giving of such instructions would constitute plain error.

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The parties shall appear in person on August 13, 2018

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at 1:30PM in Courtroom 5, 14th floor for a Further Pretrial

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Conference to discuss jury instructions and a proposed form of

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verdict.

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V.

Voir Dire Questions

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No later than fourteen calendar days before the trial
date, counsel for each party shall submit all proposed jury voir

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dire questions.

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VI.

Proposed Findings of Fact and Conclusions of Law

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No later than fourteen court days before the trial

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date, plaintiff shall lodge and serve the Findings of Fact and

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Conclusions of Law and form of judgment which plaintiff proposes

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to be entered at the conclusion of the trial pursuant to Fed. R.

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Civ. P. 52 on plaintiff’s claims for injunctive and declaratory

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relief.

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shall lodge and serve the Findings of Fact and Conclusions of Law

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and form of judgment which defendant proposes be entered on the

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injunctive and declaratory relief claims.

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VII.

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No later than seven court days before trial, defendant

Trial Briefs
No later than fourteen calendar days before the trial

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date, counsel for each party shall file trial briefs pursuant to

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Local Rule 285.

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VIII.

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Witnesses
(A)

Plaintiff anticipates calling the witnesses

identified at Exhibit “A” attached hereto.
(B)

Defendant anticipates calling the witnesses
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identified at Exhibit “B” attached hereto.

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(C)

Except for retained experts, each party may call

any witness designated by any other party.

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(D)

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trial unless:

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(1)

all parties stipulate that the witness may

(2)

the party offering the witness demonstrates

testify;

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No other witnesses will be permitted to testify at

that the witness is for the purpose of rebutting evidence which

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could not have been reasonably anticipated at the time of the

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Pretrial Conference; or

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(3)

the witness was discovered after the Pretrial

Conference.

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(E)

Testimony of a witness not designated in this

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Order, which is offered under paragraph VIII(D)(3), above, upon

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the grounds that the witness was discovered after the Pretrial

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Conference, will not be permitted unless:

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(1)

reasonably have been discovered prior to the Pretrial Conference;

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the testimony of the witness could not

(2)

the court and opposing counsel were promptly

notified upon discovery of the testimony; and

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(3)

counsel proffered the witness for deposition

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if time permitted or provided all opposing counsel a reasonable

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summary of the testimony if time did not permit a deposition.

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IX.

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Exhibits
(A)

Plaintiff intends to offer the exhibits identified

at Exhibit “C” attached hereto.
(B)

Defendant intends to offer the exhibits identified
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at Exhibit “D” attached hereto.

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(C)
other party.

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(D)

(1)

all parties stipulate that the exhibit may be

received in evidence;

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No other exhibits will be received in evidence

unless:

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Each party may offer any exhibit designated by any

(2)

the party offering the exhibit demonstrates

that the exhibit is for the purpose of rebutting evidence which

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could not have been reasonably anticipated at the time of the

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Pretrial Conference; or

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(3)

the exhibit was discovered after the Pretrial

Conference.
(E)

An exhibit not designated in this Order, which is

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offered under paragraph IX(D)(3), above, upon the grounds that

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the exhibit was discovered after the Pretrial Conference, will

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not be received in evidence unless:

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(1)

discovered prior to the Pretrial Conference;

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the exhibit could not reasonably have been

(2)

the court and opposing counsel were promptly

notified upon discovery of the exhibit; and

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(3)

counsel provided copies of the exhibit to all

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opposing counsel if physically possible or made the exhibit

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reasonably available for inspection by all opposing counsel if

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copying was not physically possible.

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(F)

Each party shall exchange copies of all exhibits

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identified in this Order, or make them reasonably available for

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inspection by all other parties, no later than seven calendar
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days before the trial date.

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exhibits shall be filed and served not later than four calendar

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days before the trial date.

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(G)

Any and all objections to such

The attorney for each party is directed to appear

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before trial and present an original (and if physically possible

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one copy) of each exhibit to Deputy Clerk Karen Kirksey Smith at

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8:30 a.m. on the date of trial.

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(H)

Each exhibit which has been designated in this

Order and presented on the morning of the date of trial shall be

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pre-marked by counsel.

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defendant’s exhibits shall bear letters.

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been made to such exhibit pursuant to paragraph IX(F), above,

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such exhibit will require no further foundation and will be

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received in evidence upon the motion of any party at trial.

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X.

Plaintiff’s exhibits shall bear numbers;
If no objection has

Further Discovery and Motions

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Except for motions in limine, no further motions shall

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be brought before trial except upon order of the court and upon a

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showing of manifest injustice.

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further discovery will be permitted except by the express

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stipulation of all parties or upon order of the court and upon a

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showing of manifest injustice.

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XI.

Fed. R. Civ. P. 16(e).

No

Id.

Use of Depositions or Interrogatories

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No later than twenty calendar days before the trial

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date, counsel for each party shall file and serve a statement

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designating all answers to interrogatories and all portions of

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depositions intended to be offered or read into evidence, with

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the exception of portions to be used only for impeachment or

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rebuttal.

No later than ten calendar days before the trial date,
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counsel for any other party may file and serve a counter-

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designation of other portions of the same depositions intended to

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be offered or read into evidence and may file evidentiary

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objections to any other parties’ designation.

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seven calendar days before the trial date, the parties may file

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evidentiary objections to any other party’s counter-designation.

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XII.

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No later than

Date and Length of Trial
The trial is set for August 21, 2018, in Courtroom 5.

The court estimates that the trial will last approximately ten

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days.

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XIII. Settlement

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The parties are willing to participate in a pretrial

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settlement conference.

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set before Magistrate Judge Edmund F. Brennan on August 7, 2018

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at 10:00AM in Courtroom 8, 13th floor.

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have a principal with full settlement authority present at the

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settlement conference or to be fully authorized to settle the

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matter on any terms.

Accordingly, a settlement conference is

Each party is ordered to

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No later than 12:00 PM (noon) on July 31, 2018 counsel

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for each party shall submit a Confidential Settlement Conference

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Statement via email to [e-mail].

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may agree, or not, to serve each other with the Confidential

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Settlement Conference Statements.

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Conference Statements shall not be filed with the clerk and shall

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not otherwise be disclosed to the trial judge.

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party shall e-file a one-page document entitled “Notice of

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Submission of Confidential Settlement Conference Statement.”

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XIV.

Daubert Procedure
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The parties

The Confidential Settlement

However, each

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Any challenges based on Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v.

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Carmichael, 526 U.S. 137 (1999), will be raised and resolved

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outside the presence of the jury just prior to when the

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challenged expert will be called to give testimony.

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challenged expert shall be present for such a challenge, and

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shall be available for questioning.

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XV.

Any

Evidence Presentation Equipment

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If any party feels that electronic presentation is

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necessary, they should be prepared to operate the courtroom’s

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equipment or bring their own audio-visual equipment to the

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courtroom and be prepared to operate it themselves.

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Dated:

July 30, 2018

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Exhibit A: Plaintiff’s Witnesses
Plaintiff reserves the right to call (or not call) any

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witness listed.

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witness not listed for the purpose of document authentication

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and/or for rebuttal purposes only.

Plaintiff also reserves the right to call

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On December 1, 2017, plaintiff disclosed Serge Mysin,

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Certified Public Accountant, as its expert witness on the issue

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of inappropriate and undocumented personal transactions engaged

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in by defendant Archbold.

On December 1, 2017, defendant

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Archbold was served with a copy of Mr. Mysin’s written report

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dated November 30, 2017.

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plaintiff Rackwise’s termination of Archbold for cause, as well

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as claims against Archbold for fraud, breach of fiduciary duty

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and conversion.

Mr. Mysin’s testimony will support

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WITNESS
Guy Archbold,
C/O Counsel for
Defendant

SUBJECT OF INFORMATION
As the former Chairman, President and CEO
of Rackwise, Inc., and defendant in this
case, Mr. Archbold has extensive
information as to his actions and omissions
leading to all aspects of his liability and
breach of his fiduciary duty to Rackwise in
this case.

Patrick Imeson,
C/O Counsel for
Plaintiff

As Interim Chief Restructuring Officer of
Rackwise, Inc., Principal of Rackwise
Funding II, LLC, a Rackwise shareholder,
and Member of the Board of Directors of
Rackwise, Inc., Mr. Imeson can testify as
to improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise. Mr. Imeson can also testify
regarding specific financial and economic
harms that were done to Rackwise by
Archbold in concert with his illegitimate
board of directors.

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Dwight Richert,
C/O Counsel for
Plaintiff

As Principal of Triple R-F, LLC, a Rackwise
shareholder, and principal of Richert
Funding, financier of Rackwise, Inc., Mr.
Richert can testify as to improper actions
and omissions by Mr. Archbold that harmed
Rackwise resulting in damages and can
testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise. Mr. Richert can also testify
regarding specific financial and economic
harms that were done to Rackwise by
Archbold in concert with his illegitimate
board of directors.

Bart Richert,
C/O Counsel for
Plaintiff

As a Member of the Board of Directors of
Rackwise, Inc., Mr. Richert can testify as
to improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise.

Michael Feinberg,
C/O Counsel for
Plaintiff

As a Member of the Board of Directors of
Rackwise, Inc., Mr. Feinberg can testify as
to improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise.

Emmett DeMoss,
C/O Counsel for
Plaintiff

As Chairman Emeritus and founder of
Rackwise, Inc., Mr. DeMoss can testify as
to improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise.

Doug MacRae,
C/O Counsel for
Plaintiff

As Executive Vice President of the
Technology Group at Rackwise, Inc., Mr.
MacRae can testify as to improper actions
and omissions by Mr. Archbold that harmed
Rackwise resulting in damages and can
testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise.

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Sherman Henderson,
C/O Counsel for
Defendant

As an illegitimate director of Rackwise,
Inc. acting in concert with Guy Archbold,
Mr. Henderson has knowledge regarding
improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise.

Jay Schiffman,
C/O Counsel for
Defendant

As an illegitimate director of Rackwise,
Inc. acting in concert with Guy Archbold,
Mr. Schiffman has knowledge regarding
improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise.

Craig Whited,
C/O Counsel for
Defendant

As an illegitimate director of Rackwise,
Inc. acting in concert with Guy Archbold,
Mr. Whited has knowledge regarding improper
actions and omissions by Mr. Archbold that
harmed Rackwise resulting in damages and
can testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise.

John Kyees,
C/O Counsel for
Defendant

As an illegitimate director of Rackwise,
Inc. acting in concert with Guy Archbold,
Mr. Kyees has knowledge regarding improper
actions and omissions by Mr. Archbold that
harmed Rackwise resulting in damages and
can testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise.

John Todd,
C/O Counsel for
Defendant

As an illegitimate director of Rackwise,
Inc. acting in concert with Guy Archbold,
Mr. Todd has knowledge regarding improper
actions and omissions by Mr. Archbold that
harmed Rackwise resulting in damages and
can testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise.

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Jonathan Shechter,
Foley Shechter LLP
211 E. 43rd St.
Suite 609
New York, NY 10001
[phone]

As a New York attorney purporting to
represent Rackwise, Inc. under the
direction of Guy Archbold, Mr. Schechter
has knowledge regarding the legal actions
and omissions by Mr. Archbold that harmed
Rackwise resulting in damages and the
breach of various fiduciary duties Mr.
Archbold owed to Rackwise. Rackwise waives
any attorney-client privilege as to Foley
Schecter LLP.

Sasha Ablovatskiy,
Foley Shechter LLP
211 E. 43rd St.
Suite 609
New York, NY 10001
[phone]

As a New York attorney purporting to
represent Rackwise, Inc. under the
direction of Guy Archbold, Ms. Ablovatskiy
has knowledge regarding the legal actions
and omissions by Mr. Archbold that harmed
Rackwise resulting in damages and can
testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise, Rackwise waives any attorneyclient privilege as to Foley & Shechter.

Richard A. Ivers,
Law Office of
Richard A. Ivers
7451 Wiles Road
Suite 101
Coral Springs, FL
33067
[phone]

As a Florida attorney purporting to
represent Rackwise, Inc. under the
direction of Guy Archbold, Mr. Ivers has
knowledge regarding the legal actions and
omissions by Mr. Archbold that harmed
Rackwise resulting in damages and can
testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise, since Rackwise waives any
attorney-client privilege as to Foley &
Shechter.

Dorella Sanakidis,
C/O Counsel for
Plaintiff

As an Administrative Assistant, Rackwise,
Inc., Ms. Sanakidis has knowledge regarding
improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and the breach of various fiduciary
duties Mr. Archbold owed to Rackwise.

Prakash Trevedi,
C/O Elizabeth
Parker
Assistant General
Counsel
Unisys Corporation
Unisys Way
Bluebell, PA 19424
[phone]

As a UNISYS Senior Manager, Mr. Trevedi has
knowledge regarding improper actions and
omissions by Mr. Archbold that harmed
Rackwise with UNISYS resulting in damages
and the breach of various fiduciary duties
Mr. Archbold owed to Rackwise.

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Venkatapathi
Puvvada,
C/O Elizabeth
Parker
Assistant General
Counsel
Unisys Corporation
Unisys Way
Bluebell, PA 19424
[phone]

As a President of UNISYS Federal Group, Ms.
Puvvada has knowledge regarding improper
actions and omissions by Mr. Archbold that
harmed Rackwise with UNISYS resulting in
damages and the breach of various fiduciary
duties Mr. Archbold owed to Rackwise.

Stacey Lovelace,
102 Flint Rock
Court
Folsom, CA 95630
[phone]

As a friend and personal assistant to Guy
Archbold, Ms. Lovelace has knowledge
regarding the actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and the breach of various fiduciary
duties Mr. Archbold owed to Rackwise. She
can demonstrate the personal
misappropriation of funds that were
specifically directed toward her.

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Exhibit B: Defendant’s Witnesses

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Defendant reserves the right to call witnesses not
listed for purposes of impeachment or document authentication.

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1.

Guy Archbold, who may
be contacted through
his counsel of
record.

Mr. Archbold is expected to have
knowledge of his employment with
Plaintiff, the ongoing operations of
Rackwise, Inc., the makeup of its
incumbent Board of Directors, and
the terms of warrants and Series A
Preferred Stock issued by Rackwise,
Inc.

2.

John Kyees, who may
be contacted through
counsel of record for
Defendant.

Mr. Kyees is expected to have
knowledge of his membership on the
Rackwise incumbent Board of
Directors, the ongoing operations of
Rackwise, Inc., as well as the
events and circumstances surrounding
the “Special Meeting” of the Board
of Directors on February 2 and 3,
2017.

3.

Sherman Henderson,
III, who may be
contacted through
counsel of record for
Defendant.

Mr. Henderson is expected to have
knowledge of his membership on the
Rackwise incumbent Board of
Directors, the ongoing operations of
Rackwise, Inc., as well as the
events and circumstances surrounding
the “Special Meeting” of the Board
of Directors on February 2 and 3,
2017.

4.

Sasha Ablovatskiy,
who may be contacted
through counsel of
record for Defendant.

Mr. Ablovatskiy is expected to have
knowledge of the fundamentals of the
Rackwise, Inc.’s corporate Bylaws,
the terms of exercise of warrants
issue by Rackwise, Inc. to Triple RF, LLC, and Rackwise Funding II,
LLC, and the terms of the Series A
Preferred Stock issue by Rackwise,
INc. as well as the federal
securities laws and regulations and
Nevada corporate laws applicable to
Rackwise, Inc., operating as a
publicly traded company.

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5.

Patrick Imeson,
address and phone
number unknown to
Defendant, but known
to Plaintiff.

Mr. Imeson is expected to have
knowledge of the circumstances
surrounding his investment in
Rackwise, Inc., the facts and
circumstances surrounding the
“Special Meeting” of the Board of
Directors on February 2 and 3, 2017,
the alleged exercise of the warrants
on March 22, 2017, Defendant’s
termination, and the ongoing
operations of Plaintiff from
February 2, 2017.

6.

Bart Richert, address
and phone number
unknown to Defendant,
but known to
Plaintiff.

Mr. Richert is expected to have
knowledge of the circumstances
surrounding his investment in
Rackwise, Inc., the facts and
circumstances surrounding the
“Special Meeting” of the Board of
Directors on February 2 and 3, 2017,
the alleged exercise of the warrants
on March 22, 2017, Defendant’s
termination, and the ongoing
operations of Plaintiff from
February 2, 2017.

7.

Dwight Richert,
address and phone
number unknown to
Defendant, but known
to Plaintiff.

Mr. Richert is expected to have
knowledge of the circumstances
surrounding his investment in
Rackwise, Inc., the facts and
circumstances surrounding the
“Special Meeting” of the Board of
Directors on February 2 and 3, 2017,
the alleged exercise of the warrants
on March 22, 2017, Defendant’s
termination, and the ongoing
operations of Plaintiff from
February 2, 2017.

8.

Michael Feinberg,
address and phone
number unknown to
Defendant, but known
to Plaintiff.

Mr. Feinberg is expected to have
knowledge of the circumstances
surrounding his investment in
Rackwise, Inc., the facts and
circumstances surrounding the
“Special Meeting” of the Board of
Directors on February 2 and 3, 2017,
the alleged exercise of the warrants
on March 22, 2017, Defendant’s
termination, and the ongoing
operations of Plaintiff from
February 2, 2017.

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9.

2

Stacey Lovelace,
102 Flint Rock Court
Folsom, CA 95630
[phone]

3

Ms. Lovelace will testify to any
duties she performed on behalf of
Plaintiff and whether she was
compensated by Defendant for such
services.

4
Exhibit C: Plaintiff’s Exhibits
5
6
7

NO.2
1

DESCRIPTION
Bylaws of Visual Network Design, Inc.

8

2

Subscription Agreements Rackwise-Purchasers:

9

Subscription Agreement dated May 7, 2014 by and between
Rackwise, Inc. and Rackwise Funding II, LLC.

10
Warrants to Purchase Common Stock effective May 7, 2014
issued by Rackwise, Inc. to Rackwise Funding II, LLC.

11
12

Warrants to Purchase Common Stock effective October 7,
2015 issued by Rackwise, Inc. to Triple R-F, LLC.

13
3

SEC Form 8-K [February 15, 2017]

4

SEC Form 8-K [March 20, 2017]

5

Action by Written Consent of Rackwise Shareholders
[March 23, 2017]

6

March 26, 2017 letter from Gavrilov & Brooks law firm,
Rackwise attorney Ognian Gavrilov, to opposing counsel
Randall J. Paulson

7

April 5, 2017 email message from Patrick Imeson to
Rackwise board and counsel forwarding Archbold’s April
5, 2017 letter

8

April 14, 2017 email message from Rackwise counsel
Ognian Gavrilov to Rackwise Board forwarding Archbold’s
April 13, 2017 letter

9

April 5, 2017 email message from Doug MacRae to some
Rackwise board members and counsel forwarding
Archbold’s April 14, 2017 email message to Doug MacRae

10

SEC Form 8-K [April 14, 2017]

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court.
trial.

Numbers listed here are for the convenience of the
Plaintiff may use other numbers in marking exhibits for
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1

11

Documentation of Michael Hawes, C.P.A., an accountant
retained by Defendant Archbold on behalf of Rackwise,
estimating a net loss of $7,618,336 for the fiscal year
ended December 31, 2014.

12

Documentation showing that during Defendant Archbold’s
tenure as the Chief Executive Officer and President of
Rackwise, Rackwise sustained a net loss of $9,593,685
for the fiscal year ended December 31, 2012, a net loss
of $6,482,307 for the fiscal year ended December 31,
2013, and a net loss of $2,828,892 for the period
January 1-March 31, 2014.

13

Tax lien and levy of approximately $1,567,000 in
connection with the unpaid payroll taxes for the third
and fourth quarters of 2012, and the first and second
quarters of 2013.

14

Default Notice under a factoring agreement with its
secured lender Richert Funding in the approximate sum
of $12,000,000.

15

Default Notices on secured promissory notes to Rackwise
Funding II (outstanding indebtedness of more than
$8,000,000) and several other unsecured promissory
notes (outstanding balance of more than $608,000).

16

Documentation of Rackwise’s default on obligations and
eventual termination of contract with Intel Corporation
under Archbold’s leadership.

17

Record of Mr. Archbold’s conviction/guilty plea in El
Dorado County (California) Superior Court to a criminal
violation of California Revenue and Taxation Code 19706
relating to his failure to file personal tax returns.

18

Eviction Notices for defaulted office leases in North
Carolina and California.

19

Alleged Employment Agreement of Archbold with Rackwise
dated September 30, 2011.

20

Rackwise employee, Dorella Sanakidis’, documentation of
approximately $400,000 in misappropriation of company
funds by Defendant Archbold.

21

The Minutes of the February 2, 2017 Rackwise Board of
Directors’ Meeting terminating Guy Archbold as a
director and officer of Rackwise, for cause.

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22

The Minutes of the February 3, 2017 Rackwise Board of
Directors’ Meeting ratifying and approving the
termination Guy Archbold as a director and officer of
Rackwise, for cause, and electing Patrick Imeson as
Interim Chief Restructuring Officer of Rackwise.

23

The Minutes of the March 23, 2017 Shareholders Meeting
removing Defendant Archbold and Sherman Henderson as
members of the Rackwise Board of Directors and
appointing Patrick Imeson and Bart Richert as directors
of Rackwise.

24

November 30, 2017 expert witness report of Serge Mysin,
C.P.A., concluding that Defendant Archbold engaged in
$384,886.62 in questionable transactions involving
Rackwise funds.

25

April 18, 2017 notices from the SEC that an individual
(Archbold) was attempting to reset Rackwise’s password
to the electronic system so as to seize control of
Rackwise’s account.

26

Company credit card records showing Archbold converted
approximately $70,000 between October, 2015 and
February, 2017 for personal uses.

27

Business account records showing Archbold took in
excess of $185,000 in so-called cash advances, and then
attempted to claim that such funds were for "business
expenses."

28

Compensation records showing that Archbold overpaid
himself as purported employee compensation, without
authorization, approximately $70,000 in 2015 and 2016.

29

Corporate expense records showing that Archbold used
corporate funds, without authorization from the Board
of Directors, and without any legitimate business
purpose, to provide economic benefit and assistance to
his friend and personal assistant Stacey Lovelace
("Lovelace") in an amount exceeding $60,000.

30

Corporate records showing that in 2016, Archbold caused
payments from customers in excess of $23,000 to be
withheld from Rackwise accounts, and instead used these
funds for himself and/or Lovelace.

31

Corporate records showing that Archbold has converted
in excess of $400,000 of Rackwise funds for his own
personal use, to the detriment of Rackwise, without The
Board's knowledge, authorization, or consent, and to
the detriment of the corporation for which Archbold
owed a fiduciary duty.

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32

All Exhibits attached to all declarations in both
support and in opposition to the preliminary
injunction.

33

Exhibits attached to Defendant’s Motion to Compel
Arbitration.

34

Exhibits attached to Defendant’s Motion for Contempt.

35

All of the Resolutions from the Rackwise Corporate
Minutes Book.

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36

Rackwise’s Corporate Bylaws.

8

37

Rackwise’s Articles of Incorporation.

9

38

Various pages of Rackwise’s website/webpage.

10

39

Additional correspondence to defendant (including
letters, and emails) – various documents concerning
claims and issues in the instant lawsuit, including but
not limited to, cease and desist demands.

40

Additional correspondence (including letters, emails,
and memoranda) – various documents involving defendant
as either a sender or a recipient, to Rackwise
shareholders, board members, employees, customers, as
well as Security and Exchange commission personnel and
various other third-parties.

41

Additional correspondence (including letters, emails,
and memoranda) – various documents between and among
employees and/or officers or shareholders of Rackwise
concerning defendant’s actions and damages related
thereto.

42

Corporate and Administrative Records – various
documents relating to the operation and administration
of Rackwise, including corporate governance and
operation, corporate formation and implementation of
policies, business and business planning information,
board of director and officer records and employee
governance and human resource materials.

43

Advertising and Outreach Materials – various documents
relating to the operation of the Rackwise business and
corporate governance.

44

Financial Records – various documents in relation to
the financial operation and administration of Rackwise,
including bookkeeping and accounting information,
independent auditor information and various financial
reports.

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45

Additional Securities and Exchange Commission Records –
various documents demonstrating the numerous improper
filing and submissions to the SEC by Archbold and/or
his agents purportedly on behalf of Rackwise.

46

Rackwise Requests for Admission, Set One, dated
November 17, 2017.

47

Archbold Responses to Requests for Admissions, Set One,
dated December 18, 2017.

48

Rackwise Interrogatories, Set One, dated November 17,
2017.

49

Archbold Responses to Interrogatories, Set One, dated
December 18, 2017.

50

Rackwise Request for Production of Documents, Set One,
dated November 17, 2017.

51

Archbold Responses to Request for Production of
Documents, Set One, dated December 18, 2017.

52

Transcript of February 28, 2018 Deposition of Sasha
Ablovatskiy, including all exhibits marked and/or
referenced therein.

53

Transcript of March 6, 2018 Deposition of Sasha
Ablovatskiy, including all exhibits marked and/or
referenced therein.

54

Transcript of January 22, 2018 Deposition of Guy
Archbold, including all exhibits referenced therein.

55

Emails authored by Defendant Archbold to Patrick
Imeson, Dwight Richert, and other declared witnesses in
the litigation including but not limited to Sasha
Ablovatskiy, Jonathan Shechter, Sherman Henderson, John
Kyees, John Todd, Jay Schiffman, Craig Whited, and
Stacey Lovelace. This is related to Exhibit D:
Defendant’s Exhibits, at 24:2-24:4.

56

All email communications between Defendant Archbold and
UNISYS Corporation. This is related to Exhibit D:
Defendant’s Exhibits, “business partners,” at 23:923:10.

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Exhibit D: Defendant’s Exhibits

2

Defendant adopts by reference all documents listed in

3

Plaintiff’s Pre-trial statement and adds the following exhibits

4

to the extent that they are not otherwise identified in

5

Plaintiff’s schedule of exhibits.

6
7

DESCRIPTION
Defendant’s Employment Agreement.

8

Termination letter to Defendant.

9
10

Email correspondence between Defendant and RACKWISE
shareholders, business partners, investors, and Directors
during and post-employment status.

11

Corporate by-laws in effect at the time of Defendant’s tenure.

12

All Exhibits-documents attached to all motions or Requests for
Judicial Notice submitted to this court pertaining to this
litigation.

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All declarations attached to all motions or Requests for
Judicial Notice submitted to this court pertaining to this
litigation.
All filings with the SEC regarding Rackwise, Inc.
Corporate minutes regarding purported Special Meetings held on
February 2, 3, 2017, by the purported Rackwise Board of
Directors.
Special Interrogatories propounded on Plaintiff by Defendant.
Plaintiff’s Response to Special Interrogatories propounded on
it by Defendant.
Request for Production of Documents propounded on Plaintiff by
Defendant.

24

Plaintiff’s Response to Request for Production of Documents
propounded on it by Defendant.

25

All documents pertaining to the FLORIDA LITIGATION.

26

All correspondence generated by defendant’s counsel pertaining
to the business of RASKWISE from February 2, 2017 to the
present.

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24

1

Certificate of Designation of Series A Preferred Stock.

2

All documents sent by or received by defendant from any
RACKWISE shareholder, investor, employee, director, or other
party regarding the business of RACKWISE during defendant’s
tenure with RACKWISE.

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