Calcar Inc. et al v. The California Cars Initiative, Inc. et al

Filing 41

Memorandum in Opposition re 30 MOTION to Compel Plaintiffs' Notice of Motion and Motion to Compel Deposition Testimony of Third Party Dave Bagshaw and Countermotion for Protective Order filed byDave Bagshaw. (Pistorino, James) (Filed on 7/16/2008)

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1 JAMES C. PISTORINO (State Bar No. 226496) HOWREY LLP 2 1950 University Avenue, 4th Floor East Palo Alto, CA 94303 3 Telephone: (650) 798-3500 Facsimile: (650) 798-3600 4 E-mail: PistorinoJ@howrey.com 5 Attorneys for Third Party DAVE BAGSHAW 6 7 8 9 10 11 12 CALCAR, INC., a California corporation; and AMERICAN CALCAR, INC., a Delaware 13 corporation, 14 15 v. Plaintiffs, Case No. 3:08-MC-80083 MHP (WDBx) Underlying Civil Action Pending in U.S. District Court for the Central District of California (Civil Action Case No. SACV07-00723) THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL DEPOSITION TESTIMONY AND COUNTERMOTION FOR PROTECTIVE ORDER Date: August 6, 2008 Time: 4:00 p.m. Courtroom: 4, 3rd Floor Honorable Wayne D. Brazil UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 16 THE CALIFORNIA CARS INITIATIVE, INC., an unknown business entity; and FELIX KRAMER, an 17 individual, 18 19 20 21 22 23 24 25 26 27 28 HOWREY LLP Defendants. THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL DEPOSITION TESTIMONY Case No. 3:08-MC-80083 MHP (WDBx) 1 Third party Dave Bagshaw opposes Plaintiffs Calcar Inc. and American Calcar Inc.'s Motion to 2 Compel him to appear for a deposition. Plaintiffs' motion should be denied because: 3 (1) Mr. Bagshaw was not properly served with the subpoena as no witness or mileage fees 4 were provided; and 5 (2) a deposition of Mr. Bagshaw would be unduly burdensome and oppressive as Mr. 6 Bagshaw's testimony is not needed for Plaintiffs' case, Mr. Bagshaw lacks any relevant information 7 and/or any minimal alleged relevance is outweighed by the burden on Mr. Bagshaw, especially when 8 considered in light of Plaintiffs' counsel's conduct generally and at prior depositions. 9 Even in Plaintiffs' view, Mr. Bagshaw's testimony is not necessary to Plaintiffs' claims because 10 Plaintiffs have already moved for summary judgment of liability without Mr. Bagshaw's testimony. 11 (See Calcar, Inc. v. The California Cars Initiative, Inc., U.S.D.C. C.D. Cal. Case No. 8:07-cv-0072312 AG-JWJ, Dkt. No. 100, filed June 30, 2008.) Moreover, Plaintiffs have already deposed both of TCCI's 13 principals (Messrs. Felix Kramer and Ron Gremban) as well as another individual who simply had 14 contact with TCCI (Dr. Andrew Frank). 15 For the reasons set forth above, Plaintiffs' motion should be denied and a protective order should 16 issue barring Plaintiffs from further seeking to depose Mr. Bagshaw. 17 I. 18 BACKGROUND Mr. Bagshaw is the former CEO of Shutterfly, Inc. (the well known picture sharing website) and 19 also formerly held senior positions with Silicon Graphics, Excite@Home, and @HomeNetworks. 20 Defendant The California Cars Initiative (TCCI) is a non-profit, advocacy group dedicated to 21 promoting plug-in hybrid electric vehicles (PHEVs) as more efficient and environmentally superior to 22 cars that are common today (e.g., conventional internal combustion, electric, or standard hybrid vehicles 23 such as the Toyota Prius). TCCI sells no products or services. As part of its advocacy efforts, TCCI 24 places designs for PHEVs developed by volunteers in the public domain by posting them on the Internet 25 for anyone to use. For approximately six months in 2006-07, Mr. Bagshaw volunteered some of his 26 time to TCCI and in connection with that was assigned an email address. Mr. Bagshaw has not been a 27 28 HOWREY LLP THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL DEPOSITION TESTIMONY 1 Case No. 3:08-MC-80083 MHP (WDBx) 1 TCCI volunteer since early-mid 2007. Contrary to Plaintiffs' claims, Mr. Bagshaw has never been 2 "hired" or "employed" by TCCI. (Mot. at 7.) 3 The underlying case was filed in June 2007 and concerns Plaintiffs' allegations of trademark 4 infringement by TCCI. Plaintiffs sell manuals/guides that may be placed in new cars using the names 5 "Quick Tips" or "Startup Tips." Plaintiff American Calcar, Inc. is also the owner of U.S. Patent No. 6 6,175,782 ("the `782 patent") entitled "System And Method For Adjusting Climate Control In 7 Vehicles." (See Declaration of James C. Pistorino In Support of Third Party Dave Bagshaw's 8 Opposition to Plaintiffs' Motion to Compel Deposition Testimony and Countermotion for Protective 9 Order ("Pistorino Decl."), filed concurrently herewith, at Ex. 1.) That patent concerns a method and 10 system for adjusting the air conditioning in a car and Plaintiffs have never sold any software or 11 hardware related to the `782 patent under any name. Both the guides and the `782 patent are totally 12 unrelated to PHEVs. 1 In an effort to avoid discovery of Plaintiffs' financial information, Plaintiffs have 13 dropped any claim to "past economic damages." 2 14 The discovery deadline was scheduled for April 8, 2008. While the deadline for written 15 discovery closed on April 8, on April 7 and May 15, the Court issued orders extending the deadline for 16 taking depositions to June 30, 2008. Plaintiffs made no effort to seek Mr. Bagshaw's deposition until 17 May 23, 2008, after the original close of discovery, nearly one year after the case was filed, and 18 approximately one month before the revised close of deposition discovery. On May 27, 2008, a process 19 server served Mr. Bagshaw with a subpoena but failed to serve witness or mileage fees. 3 Though he 20 21 1 Apparently because adjusting air conditioning in a car is so far removed from PHEVs, Plaintiffs 22 have taken to referring to the `782 patent as "visual display and conversion kit technology" (Mot. at 2 and 7) in an effort to make it sound more like kits to convert a Toyota Prius, e.g., to a PHEV. 23 2 Plaintiffs failed to comply with the Magistrate's Order regarding production of financial 24 information and the Magistrate (Judge Johnson) has indicated his intention to sanction Plaintiffs as a result. ("The Plaintiffs are going to get sanctioned." (Pistorino Decl. Ex. 2 at 4:3); "This is despicable." 25 (id. at 8:24).) Magistrate Johnson has stayed ruling on this issue pending review of the underlying production order by the District Court (Judge Guilford). 26 3 Plaintiffs' motion represents: "On May 23, 2008, Calcar served Bagshaw with a subpoena issued from this Court for deposition testimony." (Mot. at 3 (citing Exhibit A to the Bleeker 27 Declaration)); "Calcar also served a check for witness fees and mileage along with the subpoena." (Id.) Even as set forth in the exhibits to Plaintiffs' motion, that statement is incorrect. On May 23, Plaintiffs 28 (Continued...) HOWREY LLP THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL DEPOSITION TESTIMONY 2 Case No. 3:08-MC-80083 MHP (WDBx) 1 had no duty to do so, on June 5, 2008, Mr. Bagshaw served objections to the subpoena noting the 2 failure to serve witness and mileage fees. On June 12 (a week later), Plaintiffs responded by letter 3 demanding that Mr. Bagshaw appear on June 17. A meet and confer was held on June 19 where counsel 4 for Mr. Bagshaw repeated Mr. Bagshaw's objections to the subpoena. On June 23, Plaintiffs' counsel 5 sent an email asserting that Plaintiffs will "seek sanctions." (See Exhibit E to Bleeker Declaration at p. 6 1.) Mr. Bagshaw's counsel responded on June 24, indicating that Mr. Bagshaw stood on his objections. 7 On June 26, Plaintiffs filed a motion to compel Mr. Bagshaw to appear for deposition as well as 8 a motion to shorten time. While the motion to compel includes a Certificate of Service executed by 9 Plaintiffs' assistant, Betty Venuti, asserting that the motion was served by email on June 26 on counsel 10 for Mr. Bagshaw (Mr. James Pistorino) as well as counsel for TCCI (Mr. William Rooklidge), the 11 motion was not served on either Mr. Bagshaw's or defendant's counsel. On June 30, Plaintiffs' counsel 12 (Mr. Warren Bleeker) responded to an inquiry regarding service of the motion to compel conceding that 13 the motion was not served as stated in the Certificate of Service and serving a copy of the motion for the 14 first time. 4 (See Dkt. No. 40-2 (Ex. A).) As of this writing, the incorrect Certificate of Service has not 15 been corrected by Plaintiffs. 16 Plaintiffs appear to be engaged in a campaign of harassing volunteers and donors to TCCI. For 17 example, Google was a donor to TCCI and Plaintiffs previously sought to compel Google to appear for 18 a FED. R. CIV. P. 30(b)(6) deposition. On May 14, 2008, this Court denied Plaintiffs' motion to compel 19 and granted Google's motion for protective order finding Plaintiffs' relevance arguments 20 "extraordinarily thin." (See Dkt. No. 29 at 2.) 21 22 23 24 (...Continued) 25 signed the subpoena served on Mr. Bagshaw but the subpoena minus witness and mileage fees was not served until May 27. (See Exhibit A to the Bleeker Declaration (noting alleged service on May 27).) 26 4 Mr. Bagshaw has no doubt that Ms. Venuti's statement was an innocent mistake. Mr. Bagshaw 27 points out this erroneous statement solely for the purpose of demonstrating that statements regarding service are incorrect from time to time. 28 HOWREY LLP THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL DEPOSITION TESTIMONY 3 Case No. 3:08-MC-80083 MHP (WDBx) 1 2 A. The Subpoena Is Invalid Because No Witness Or Mileage Fees Were Tendered It is elemental that a subpoena is invalid if witness and mileage fees are not tendered 3 simultaneously with the alleged service of the subpoena. See 9 Moore's Federal Practice 45.21[2][a]; 4 CF & I Steel Corp. v. Mitsui & Co. (U.S.A.), 713 F.2d 494, 496 (9th Cir. 1983). 5 In the present case, Mr. Bagshaw was not served with witness and mileage fees and, thus, the 6 subpoena is invalid. (See Declaration of Dave Bagshaw In Support of Opposition to Plaintiffs' Motion 7 to Compel Deposition Testimony ("Bagshaw Decl."), filed concurrently herewith, at 4.) Mr. Bagshaw 8 has never denied being served with the other papers comprising the subpoena but does deny that witness 9 and mileage fees were tendered. 10 While Plaintiffs have provided a proof of service from the process server asserting that witness 11 and mileage fees were tendered, in fact, none were. This would not be the first time in this case that a 12 proof of service from a process server turned out to be incorrect. Indeed, previously, Plaintiffs provided 13 a proof of service from a process server asserting that personal service occurred at ~3:00am at an office 14 of the University of California at Berkeley and that witness and mileage fees were tendered. Plaintiffs 15 chose not to pursue the matter when the subpoenaed party pointed out that the office was not open at 16 ~3:00am, the person allegedly served was not present then, and that no witness or mileage fees were 17 provided in any of the materials that were served at a different time. (See Dkt. No. 40-3 (Ex. B).) 18 Indeed, as noted above, it is undisputed that the Certificate of Service on Plaintiffs' Motion to Compel is 19 not correct. 20 Mr. Bagshaw stands by his testimony that witness and mileage fees were not served by the 21 process server. Accordingly, the subpoena is invalid and Plaintiffs' motion to compel should be denied. 22 23 B. A Deposition Of Mr. Bagshaw Would Be Unduly Burdensome And Oppressive As noted above, Mr. Bagshaw was a volunteer for TCCI for a brief period between December 24 2006 and July 2007. (See Bagshaw Decl. at 3.) 25 Plaintiffs have failed to identify any relevant information that Mr. Bagshaw might have. 26 Plaintiffs assert that Mr. Bagshaw might have information regarding "the different marketing channels 27 used by Defendants to provide its goods, the degree of care likely to be exercised by the purchaser and 28 HOWREY LLP THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL DEPOSITION TESTIMONY 4 Case No. 3:08-MC-80083 MHP (WDBx) 1 Defendants' plans to expand its product lines." (Mot. at 7.) As TCCI has no products or goods, Mr. 2 Bagshaw has no information on any of these topics. (See Bagshaw Decl. at 5.) In any event, any 3 information that Mr. Bagshaw might have would already have been provided in TCCI's document 4 production or depositions of TCCI's principals. Likewise, Plaintiffs' claim that Mr. Bagshaw might 5 have information on "incidents of actual confusion" is incorrect. (Mot. at 7.) Mr. Bagshaw has no such 6 information. Likewise, Mr. Bagshaw has no information about anything "similar to Calcar's patent 7 Auto Director goods." (Id.; see also Bagshaw Decl. at 6.) A deposition seeking information that Mr. 8 Bagshaw does not have about TCCI products which do not exist would be unduly burdensome and 9 oppressive. Plaintiffs have already deposed TCCI's founder (Felix Kramer) and another TCCI 10 consultant/volunteer (Ron Gremban), both of whom had never heard of Plaintiffs before this suit and 11 denied that TCCI had products. 12 A deposition would also be unduly burdensome and oppressive given Plaintiffs' conduct during 13 the case generally and at the recent deposition of TCCI volunteer Ron Gremban. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOWREY LLP There, the following exchanges occurred: MR. BLEEKER: Q. What type of computer program was it? MR. PISTORINO: Objection; vague. THE WITNESS: What do you mean by "type"? MR. BLEEKER: Q. You don't know what the word "type" means? MR. PISTORINO: And actually let the record reflect that Mr. Bleeker just laughed at the witness. Mr. Bleeker, really, that's just unprofessional. I ask you not to do that again, please. MR. BLEEKER: Well, Mr. Pistorino, you know, I've given you a little bit of leeway, but you've been -- your speaking objections are fairly out of line, and you're going to cause this deposition to go way longer than it should go by objecting to every question, and Mr. Gremban is -- he is a -- he has a degree from Cal Tech in engineering. He seems like a very intelligent man. And so based on your instructions, any time you give the objection "vague and ambiguous," then clearly Mr. Gremban is claiming not to understand certain words such as "education" and "type," which are simple words used in everyday conversation, and given Mr. Gremban's technical background, and his degree from Cal Tech, and his obvious intelligence, I assume he does know what these words mean. I was not laughing at Mr. Gremban, but I was laughing at your approach to stonewall this deposition for some reason and make it last a lot longer than it should last. MR. PISTORINO: Well, clearly the transcript of the deposition will reflect what occurred here, except for you laughing at the witness, and I'll caution you that should that happen again, we'll seek appropriate relief from the court. Now, if you have a question for the witness. THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL DEPOSITION TESTIMONY 5 Case No. 3:08-MC-80083 MHP (WDBx) 1 2 3 MR. BLEEKER: I will ask you to stop your speaking objections and stop mischaracterizing what has occurred. At no time did I laugh at the witness, so that's an incorrect statement and false statement, and I'd appreciate you stop making false statements on the record; thank you. 4 (See Dkt. No. 40-4 (Ex. C) at 19:22-21:14.) Mr. Bleeker's statement that he did not laugh at the witness 5 is contradicted by the transcript excerpt above and the accompanying declarations of Ron Gremban and 6 James Pistorino. (See Dkt. No. 39 at 3 and Dkt. No. 40 at 6.) Likewise, Plaintiffs' counsel has taken 7 to referring to Mr. Gremban's office manager (Ms. Lynne McAlister) as his "paramour" after Mr. 8 Gremban indicated that Ms. McAlister is also his girlfriend. 5 (See Dkt. No. 40-5 (Ex. D); see also Dkt. 9 No. 39 at 4.). 10 A volunteer should not be subjected to this kind of treatment and a deposition subjecting Mr. 11 Bagshaw to this kind of conduct would be unduly burdensome and oppressive. 12 II. 13 CONCLUSION For the reasons set forth above, Plaintiffs' motion to compel should be denied and the Court 14 should issue a protective order barring Plaintiffs from issuing additional subpoenas to Mr. Bagshaw. 15 16 Dated: July 16, 2008 17 18 19 20 21 22 23 24 25 26 Separately, Plaintiffs' counsel (Mr. Brian Brookey) has also accused Defendants' deponents of perjury and the Howrey law firm of suborning perjury. (See Pistorino Decl. Ex. 3.) Of course, those 27 charges are denied. 28 HOWREY LLP Respectfully submitted, By: /s/ James C. Pistorino James C. Pistorino HOWREY LLP 1950 University Avenue, 4th Floor East Palo Alto, CA 94303 Telephone: (650) 798-3500 Facsimile: (650) 798-3600 E-mail: PistorinoJ@howrey.com Attorneys for Third Party DAVE BAGSHAW 21344168 5 THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL DEPOSITION TESTIMONY 6 Case No. 3:08-MC-80083 MHP (WDBx)

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