Securities and Exchange Commission v. Silva

Filing 27

STIPULATION AND ORDER MODIFYING CASE SCHEDULE re 26 . Fact discovery due by 6/17/2011. Signed by Judge Koh on 12/13/2010. (lhklc1, COURT STAFF) (Filed on 12/13/2010)

Securities and Exchange Commission v. Silva

Doc. 27

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SECURITIES AND EXCHANGE COMMISSION Marc J. Fagel (SBN 154425) [e-mail] Robert L. Mitchell (SBN 161354) [e-mail] Sahil W. Desai (SBN 197358) [e-mail] 44 Montgomery Street, Suite 2600 San Francisco, California 94104 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff SECURITIES AND EXCHANGE COMMISSION BOIES, SCHILLER & FLEXNER LLP David W. Shapiro (SBN 219265) [e-mail] David L. Zifkin (SBN 232845) [e-mail] 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant BENJAMIN SILVA, III UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION SECURITIES AND EXCHANGE COMMISSION, Plaintiff, vs. BENJAMIN SILVA, III, Defendant. Case No. 09-05395-LHK STIPULATION AND PROPOSED ORDER TO MODIFY SCHEDULE LAW OFFICE OF DAVID T. ALEXANDER David T. Alexander (SBN 49996) [e-mail] 332 Sheridan Avenue Piedmont, CA 94611 Telephone: [phone] Facsimile: [phone]

STIPULATION TO MODIFY SCHEDULE SEC V. SILVA, CASE NO. 09-05395-LHK

Dockets.Justia.com

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This Stipulation is entered into by and among Plaintiff Securities and Exchange Commission ("Plaintiff" or "S.E.C.") and Defendant Benjamin Silva ("Defendant" or "Silva") to continue the trial and other relevant dates as follows: WHEREAS, 1. At the September 22, 2010 case management conference, the parties identified

certain depositions that they intend to take, including the depositions of Tvia's former CEO, CFO and outside auditor. The Court instructed the parties to conduct those depositions before the case management conference on February 2, 2011. 2. Following the September 22, 2010 case management conference, the Court

adopted the following dates and deadlines: further case management conference on February 2, 2011, close of discovery on April 15, 2011, dispositive motions due by May 5, 2011, pretrial conference on July 27, 2011, and trial on August 22, 2011. 3. After lengthy negotiations, on or around September 10, 2010, Tvia began

producing documents and electronic information (e.g., hard drives). Tvia's production, which currently stands at over eight hundred thousand pages (not including information on backup tapes), is substantially more voluminous than anticipated. Moreover, Tvia's electronic information for the relevant period has been difficult to obtain because most of it is not maintained at Tvia's offices and it is disorganized. 4. Tvia's exchange server did not contain custodian files for many former employees

­ including the custodian files for the Defendant, Tvia's former CFO, and much of Tvia's former sales and accounting personnel ­ and therefore Defendant had to turn to Tvia's backup tapes. Tvia has produced sixty-four unlabeled backup tapes, but still has not produced all of the backup tapes for the relevant period. It will likely take at least a month to extract and process electronic information stored on the backup tapes when the relevant tapes are identified. 5. On or around September 10, 2010, Tvia told Defendant's counsel that Tvia's

former CEO, Eli Porat, took a laptop with him when he left the company. On September 30, 2010, Defendant attempted to serve Mr. Porat with a subpoena seeking information contained on that laptop as well as other relevant documents and electronic information. That attempt and -1STIPULATION TO MODIFY SCHEDULE SEC V. SILVA, CASE NO. 09-05395-LHK

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subsequent attempts were unsuccessful. On October 26, 2010, Pagano & Kass, APC sent a letter to Defendant's counsel stating that it was authorized to accept service of subpoenas on Mr. Porat's behalf. On October 27, 2010, Defendant served Pagano & Kass, APC with the subpoena described above. On November 9, 2010, Mr. Porat served Defendant with objections to the subpoena. On December 3, 2010, Defendant's counsel and Mr. Porat's counsel had a meet and confer regarding the subpoena. Mr. Porat's counsel stated that Mr. Porat would produce a large volume of responsive documents, possibly several hundred thousand pages. 6. It is essential that the parties have access to and review all relevant documents

before depositions of Tvia's former CEO, CFO, outside auditor, and others may take place. 7. The parties have agreed that a modified schedule, continuing the dates and

deadlines set by the Court in its September 22, 2010 minute order, is needed. They do not ask the Court to modify the date by which the parties must conduct mediation. The parties affirm that this Stipulation is not being made for purposes of delay or harassment. Accordingly, it is hereby stipulated as follows: The close of fact discovery shall be continued to June 17, 2011; The other dates and deadlines set forth in the Court's March 17, 2010 scheduling order and September 22, 2010 minute order shall be vacated, except for the February 2, 2011 case management conference at which new dates and deadlines shall be set. The parties shall not be required to conduct depositions prior to the February 2, 2011 case management conference.

IT IS SO STIPULATED. Respectfully submitted,

Dated: December 7, 2010

By: /s/Robert L. Mitchell Robert L. Mitchell Attorneys for Plaintiff SECURITIES AND EXCHANGE COMMISSION

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STIPULATION TO MODIFY SCHEDULE SEC V. SILVA, CASE NO. 09-05395-LHK

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Dated: December 7, 2010

BOIES, SCHILLER & FLEXNER LLP By: /s/David L. Zifkin David L. Zifkin Attorneys for Defendant BENJAMIN SILVA

[PROPOSED] ORDER PURSUANT TO STIPULATION, IT IS ORDERED that the close of fact discovery is continued to June 17, 2011; the other dates and deadlines set forth in the Court's March 17, 2010 scheduling order and September 22, 2010 minute order are vacated; and the Court sets a case management conference for February 2, 2011, at 2 p.m., at which new dates and deadlines will be set by the Court. The parties are not required to conduct depositions prior to the February 2, 2011 case management conference.

IT IS SO ORDERED. December 13, 2010 Dated _____________________

__________________________ HON. LUCY H. KOH United States District Court Judge

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STIPULATION TO MODIFY SCHEDULE SEC V. SILVA, CASE NO. 09-05395-LHK