Netscape Communications Corporation et al v. Federal Insurance Company et al

Filing 133

Declaration of Leslie A. Pereira in Support of 131 Memorandum in Opposition to St. Paul's Motion to Amend Admission filed byNetscape Communications Corporation, American Online, Inc.. (Attachments: # 1 Signature Page (Declarations/Stipulations) Leslie A. Pereira's original# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8)(Related document(s) 131 ) (Abelson, Michael) (Filed on 4/12/2007)

Netscape Communications Corporation et al v. Federal Insurance Company et al

Doc. 133

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ABELSON | HERRON LLP Michael Bruce Abelson (State Bar No. 130739) Leslie A. Pereira (State Bar No. 180222) 333 South Grand Ave, Suite 1550 Los Angeles, California 90071-1559 Telephone: [phone] Facsimile: [phone] BERGESON, LLP Hway-ling Hsu (State Bar No. 201329) 303 Almaden Boulevard, Suite 500 San Jose, California 95110-2712 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs NETSCAPE COMMUNICATIONS CORPORATION and AMERICA ONLINE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ­ SAN JOSE DIVISION NETSCAPE COMMUNICATIONS CORPORATION, et al.; Plaintiffs, CASE NO. 5:06-CV-00198 JW (PVT) DECLARATION OF LESLIE A. PEREIRA IN SUPPORT OF PLAINTIFFS' OPPOSITION TO ST. PAUL'S MOTION TO AMEND ADMISSION Magistrate Judge Patricia V. Trumbull Date: April 17, 2007 Time: 10:00 a.m. Dept.: 5

FEDERAL INSURANCE COMPANY, et al., Defendants.

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Dockets.Justia.com

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I, Leslie A. Pereira, de clare as follows: 1. I am an attorney duly licensed to practice law in the State of California and before

the bar of this Court. I am of counsel to the law firm of Abelson | Herron LLP and, in that capacity, I am counsel of record for Plaintiffs Netscape Communications Corporation and America Online, Inc. in this action. I have personal knowledge of the matters stated herein, except as to matters upon which I state are based upon information and belief. I could and would competently testify to the same. 2. On June 19, 2006, the Court held a case management conference. During that

conference, the parties jointly agreed and proposed that this coverage litigation proceed in two phases. "Phase One" would include discovery and motion practice on the issue of whether St. Paul had a duty to defend AOL and Netscape under its policy. As part of Phase One, the parties' would file Cross-Motions for Partial Summary Judgment Re: Duty to Defend (the "Cross-Motions"). Thereafter, "Phase Two" would proceed (if necessary) on the contingent issues relating to the causes of action for breach of the covenant of good faith and fair dealing and unfair business practices. 3. Immediately after the conference, and consistent with the parties' proposals made

therein, the Court entered an order setting the hearing on the parties' Cross-Motions for November 20, 2006. For a variety of reasons, the hearing date was changed on multiple occasions. The parties' Cross-Motions are currently set to be heard on April 30, 2007. 4. Immediately after the June scheduling conference, the parties proceeded with

discovery pertinent to the issues to be raised in the Cross-Motions. In response to St. Paul's discovery requests, Plaintiffs produced the following information during the summer of 2006: · The deposition of former Netscape employee David Park, including all exhibits

thereto [NET/SDL 0004457-0004863]; · A settlement presentation prepared by the claimants' attorney, Joshua Rubin, in

the underlying SmartDownload litigations [NET/SDL 00011245-00011342] (the "Settlement Presentation").
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DECLARATION OF LESLIE A. PEREIRA IN SUPPORT OF PLAINTIFFS' OPPOSITION TO ST. PAUL'S MOTION TO AMEND ADMISSION

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5.

The Settlement Presentation ­ produced to St. Paul on June 22 ­ made numerous

advertising-related allegations, including its repeated assertions that Netscape was partnered with an ad-serving company called "AdForce" and sent the claimants' private information collected by SmartDownload to AdForce. 6. Attached hereto as Exhibit 1 is a true and correct copy of Plaintiffs' Supplemental

Responses to St. Paul's Requests for Admission. 7. Attached hereto as Exhibit 2 is a true and correct copy of Plaintiffs' Second

Supplemental Responses to St. Paul's First Set of Interrogatories. 8. In an effort to identify St. Paul's purported defenses to coverage, and to narrow

the issues that required briefing in the parties' Cross-Motions, Plaintiffs served St. Paul with a set of nine requests for admission ("RFA") on July 24, 2006. Attached hereto as Exhibit 3 is a true and correct copy of Plaintiff AOL's First Set of Requests for Admission to St. Paul. 9. Attached hereto as Exhibit 4 is a tru e and correct copy of Plaintiff Netscape's

First Set of Specially Prepared Interrogatories to St. Paul. 10. Attached hereto as Exhibit 5 is a true and correct copy of St. Paul's Response to

Plaintiffs' First Set of Requests for Admission. 11. Attached hereto as Exhibit 6 is a tru e and correct copy of St. Paul's Response to

Netscape's First Set of Specially Prepared Interrogatories. 12. Plaintiffs understood St. Paul's response to RFA No. 4 to mean that St. Paul

would not defend against this coverage action on the ground that the Online Activities Exclusion applied because the SmartDownload Claim involved "3rd party advertising." 13. Throughout the fall, Plaintiffs took numerous depositions of St. Paul's witnesses,

including claim handlers Daniel Weiss and Dale Evensen, and underwriter Michelle Midwinter. In response to Plaintiffs' request that St. Paul designate a corporate representative to testify regarding its written discovery responses ­ including its RFA responses ­ St. Paul designated all three of these individuals. Plaintiffs took Ms. Midwinter's deposition in September, 2006, and took Mr. Weiss' and Mr. Evensen's depositions in October and November, 2006.
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DECLARATION OF LESLIE A. PEREIRA IN SUPPORT OF PLAINTIFFS' OPPOSITION TO ST. PAUL'S MOTION TO AMEND ADMISSION

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14.

Attached hereto as Exhibit 7 is a tru e and correct copy of St. Paul's Supplemental

Response to Plaintiffs' First Set of Requests for Admission. 15. Attached hereto as Exhibit 8 is a true and correct copy of St. Paul's Supplemental

Response to Netscape's First Set of Specially Prepared Interrogatories. 16. At the time Plaintiffs deposed Mr. Weiss in October and November, 2006,

Plaintiffs were not aware that St. Paul contended that the "3rd party advertising" prong of the Online Activities Exclusion barred coverage, or that Mr. Weiss had information in that regard. I declare under penalty of perjury of the laws of the United States of America that the foregoing is true and correct. Executed this 12th day of April 2007 at Los Angeles, California.

______________________/s/____________________________ Leslie A. Pereira

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DECLARATION OF LESLIE A. PEREIRA IN SUPPORT OF PLAINTIFFS' OPPOSITION TO ST. PAUL'S MOTION TO AMEND ADMISSION