Gordon v. DreamWorks Animation SKG, Inc. et al

Filing 56

REPLY to Response to 34 Emergency MOTION for Protective Order and Sanctions filed by Jayme Gordon. (Attachments: # 1 Martinez Declaration, # 2 Exhibit A to Martinez Decl, # 3 McCallion Declaration, # 4 Exhibit A to McCallion Decl, # 5 Exhibit B to McCallion Decl, # 6 Exhibit C to McCallion Decl, # 7 Exhibit D to McCallion Decl, # 8 Exhibit E to McCallion Decl, # 9 Exhibit F to McCallion Decl)(Madera, Gregory)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAYME GORDON,
Plaintiff,
v.

C.A. No. 1:11-cv-10255-JLT

DREAMWORKS ANIMATION SKG, INC.,
DREAMWORKS ANIMATION LLC, and
PARAMOUNT PICTURES, CORP.,

LEAVE TO FILE GRANTED ON
NOVEMBER 14, 2011

Defendants.

PLAINTIFF JAYME GORDON’S REPLY MEMORANDUM OF LAW IN SUPPORT OF
HIS EMERGENCY MOTION FOR PROTECTIVE ORDER AND SANCTIONS

I.

PRELIMINARY STATEMENT
Mr. Shope proclaims in his declaration that “[t]here was no intent to harass or harm

Mr. Gordon, but only to seek the truth as it bears on this case.” Shope Decl., ¶17. Due to the
amendment of ALM GL ch. 268, § 13B (2011) in November 2010 to encompass both deliberate
acts, and those done with reckless disregard in civil cases, defense counsels’ purported intention
is irrelevant. What is relevant is that Defendants’ investigators’ overt tactics resulted in Mr.
Gordon feeling scared, distracted and harassed.
On October 18, 2011, counsel for Plaintiff moved this Court for a protective order
pursuant to Fed. R. Civ. P. 26(c), to protect Mr. Gordon, his family, friends and neighbors from
further harassment and intimidation by Defendants’ private investigators.1 Defendants’ counsel
replied to that motion, feigning ignorance of the illegal and unethical methods employed by the
private investigation firm they hired – Marcum LLP. Defendants do not even acknowledge the
other two investigation firms they hired (JC Lane and Associates of Boston, MA and Thomas
Dale and Associates of El Segundo, CA) to conduct their nationwide “background check” of
Mr. Gordon. Neither do Defendants answer the inquiries that are material to Plaintiff’s motion.
Specifically, how can (i) loud and incessant knocking on the doors of tenants who reside in the
locked apartment buildings of Mr. Gordon and Mr. Gordon’s mother; (ii) following Mr. Gordon
in his car on repeated occasions; (iii) questioning individuals in Mr. Gordon’s gym, and
individuals who have not seen Mr. Gordon in decades, uncover any information that bears on
this copyright infringement case? Rather, Defendants utilized Mr. Gordon’s emergency request
for Court protection to submit briefs filled with mischaracterizations of what they allege to be the
merits of Mr. Gordon’s case and disparage Mr. Gordon personally.
1

Dkt. No. 34.
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In their papers, Defendants concoct a myriad of factual presumptions to justify their
harassment of Mr. Gordon and his family. But stripping away all of their misstatements, what
has become abundantly clear is that Defendants do not deny that their agents followed Mr.
Gordon and his family, gained entry into his locked apartment building and interrogated his
neighbors (including an unaccompanied minor), questioned former employers, friends and
acquaintances of Mr. Gordon’s from California to Boston and did so while misrepresenting the
purpose of their inquiries. What has also become abundantly clear is that Defendants are now
attempting to divert the Court’s attention away from this harassment and unethical behavior by
making misrepresentations of fact about Mr. Gordon and his counsel.
At the outset, we address Defendants’ assertion that “Plaintiff has failed to establish the
existence of even a single improper act by anyone, or even to present an affidavit or other
evidence of such an act.” Opp. p. 1; see also id., pp. 14-15. As detailed in Plaintiff’s opposition
to Defendants’ motion to dismiss, when Plaintiff first raised these issues with Defendants on
October 14, there was no mention of postponing Mr. Gordon’s deposition, which was then
scheduled for October 19. Plaintiff was simply trying to get to the bottom of the extent of these
activities and to receive assurances from the Defendants that all such activities would cease
immediately.2 It was only after Defendants’ noncommittal response was received on October 17,
wherein defense counsel refused to disclose the extent of these activities and reserved the right to
take any action they “deemed” appropriate in representing their clients, did it become imperative
to seek a protective order from the Court before allowing Mr. Gordon’s deposition to go forward.
Hence, Mr. Gordon’s original motion was filed as an emergency motion on October 18, the day
before his scheduled deposition. Since that time Plaintiff has submitted declarations under oath

2

Oct. 18, 2011 Declaration of Kristen McCallion, Ex. A. [Dkt. No. 34-2.]
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supporting all of the allegations contained in the original emergency motion, namely, those of
Mr. Gordon, three of Mr. Gordon’s neighbors, and Mr. Gordon’s friend, Derek Tuttle.3 We also
refer the Court to the Declaration of Joe Martinez, an acquaintance of Mr. Gordon, filed
herewith. Mr. Martinez’s declaration evidences Defendants’ subterfuge: having not seen Mr.
Gordon for many years, Mr. Martinez was misled by Defendants’ investigators to believe that he
was speaking to a woman seeking references for Mr. Gordon’s prospective employer rather than
an investigator working for Defendants to gather evidence for a pending lawsuit.4
As Mr. Gordon’s friends and acquaintances have come forward, it is clear that
Defendants’ investigation into Mr. Gordon’s personal life is ongoing,5 and that counsels’
repeated assertions that their “observation of Mr. Gordon” and “conversations with neighbors”6
concluded weeks ago are designed only to mislead the Court.
II.

DEFENDANTS’ MISREPRESENTATIONS
As in Plaintiff’s opposition to Defendants’ motion to dismiss, Mr. Gordon again

addresses Defendants’ wide ranging factual misstatements that form the basis of their opposition
to Mr. Gordon’s emergency motion for a protective order.
Defendants’ Misstatement: “[A] cessation of the observation of Plaintiff – is completely
moot because, as Plaintiff’s counsel was specifically informed before the present motion was
filed, the observation of Plaintiff concluded weeks before the date scheduled for his deposition.”
Opp. p. 5; see also id., p. 11.

3

Dkt. Nos. 42, 43, 44, 45, and 48.
Nov. 3, 2011 Declaration of Joe Martinez, ¶5; see also Nov. 2, 2011 Declaration Jayme
Gordon, ¶ 13 (“Gordon Decl.”). [Dkt. No. 42.]
5
See Gordon Decl., ¶¶ 10, 12, 13. [Dkt. No. 42.]
6
Shope Decl., ¶ 18 and Oct. 18, 2011 Declaration of Kristen McCallion, Ex. D. [Dkt. No. 34-5.]
4

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Truth: This is perhaps the single most material misrepresentation made by Defendants to
the Court. Undoubtedly aware that Defendants’ investigators continue to work per defense
counsels’ request, Mr. Shope criticizes Plaintiff’s counsel for postponing Mr. Gordon’s
deposition “after being advised in writing that observation of Mr. Gordon had concluded weeks
earlier.” Shope Decl., ¶ 18. What Mr. Shope fails to acknowledge, however, is that the
investigation of Mr. Gordon continued well into October and, in all likelihood, is still active.
The continuing acts of Defendants’ investigators, as set forth in the Declarations of Mr. Gordon
and Mr. Martinez, belie Mr. Zavin’s and Mr. Shope’s misrepresentations.7
Defendants’ Misstatement: Mr. Shope’s sworn testimony that “I am. . . very surprised to
read in the plaintiff’s motion (p. 5) the (unsworn) assertion that the attorneys at Fish &
Richardson have “never encountered” surveillance of a party or interviews of a party’s neighbors
“in an intellectual property case.” Shope Decl., ¶ 4.
Truth: Ms. Brooks, and Mr. Madera, co-lead counsel for Mr. Gordon, actually wrote that
they had been practicing law “for nearly seventy years and have never encountered these tactics
in an intellectual property case.”8 Mr. Shope’s deliberate mischaracterization of Fish &
Richardson’s statement is representative of Defendants’ sweeping array of misstatements. On a
related note, Defendants purposely misconstrue Mr. Gordon’s motion to be based on the hiring
of investigators by Defendants.9 It is not the mere hiring of investigators that is the problem.
Rather, it is the tactics utilized by Defendants’ three teams of nationwide investigators that is the
7

See Gordon Decl., ¶¶ 10, 12, 13. [Dkt. No. 42.]; Nov. 3, 2011 Declaration of Joe Martinez
(“Martinez Decl”).
8
Oct. 18, 2011 Declaration of Kristen McCallion, Ex. E. [Dkt. No. 34-6.] See also, Pl’s
Memorandum of Law in Support of His Emergency Motion for a Protective Order and
Sanctions, p.5 (cited by Mr. Shope in support of his misstatement, Shope Decl., ¶4). [Dkt No.
34.]
9
See Opp. p. 14, where Defendants say that “Plaintiff also asserts that the hiring of a private
investigation firm by Defendants’ attorneys violated Mass. R. Prof. 4.4.”
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issue. These tactics include (i) loud and incessant knocking on the doors of tenants who reside in
the locked apartment buildings of Mr. Gordon and Mr. Gordon’s mother; (ii) following
Mr. Gordon in his car on repeated occasions; and (iii) questioning individuals in Mr. Gordon’s
gym, Mr. Gordon’s friends, and individuals who have not seen Mr. Gordon in decades under
false pretenses. Ms. Brooks and Mr. Madera were referring to these illegal and unethical
“tactics” in their letter.
Defendants’ Misstatement: “Plaintiff’s counsel eventually admitted that Plaintiff
destroyed all of the electronic evidence that relates to his allegedly infringed works entitled
either “Kung Fu Panda Power” or “Five Fists of Fury” and that he discarded his computer and all
of his computer files after he created electronic documents and images that are the heart of his
lawsuit, after he was aware of Kung Fu Panda, and after he registered his own supposedly
infringed works with the Copyright Office in 2008 and 2011.” Opp. pp. 3-4.
Truth: At no time did Mr. Gordon’s counsel “admit” anything of the sort. The basis for
Defendants’ statement is unfathomable.
Defendants’ Misstatement: “Plaintiff’s counsel asserted. . . that all relevant electronic
files had been destroyed by Gordon, presumably after his 2008 and/or 2011 copyright
registrations, when he was already planning on making a claim against Defendants. Grossman
Aff., ¶ 12.” Opp. pp. 7-8.
Truth: Again, the basis for Defendants’ statement is unfathomable, given Mr. Gordon’s
production of over 5,000 electronic files.
Defendants’ Misstatement: Mr. Grossman’s sworn testimony that “[o]n August 15, 2011,
Kristen McCallion, Plaintiff’s counsel, agreed to make Plaintiff’s computers and electronic files
available for forensic examination.” Grossman Decl., ¶ 10; see also Opp. p. 8.

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Truth. As can be seen by Fish & Richardson P.C.’s letter dated August 15, which is
annexed to Mr. Grossman’s declaration as Exhibit C,10 Mr. Gordon agreed “to make accessible
for forensic examination and imaging, the electronic media and files that Mr. Gordon has located
after a reasonable and diligent search.” Nowhere does this letter state or imply that Mr. Gordon
was making a computer accessible for forensic examination. As explained to defense counsel,
Mr. Gordon agreed to provide to Defendants a disc obtained from the United States Copyright
Office, which is a direct copy of Mr. Gordon’s electronic submission to the Copyright Office in
1999, so that it could be tested by forensic computer experts. Defendants never tested the disc.
Defendants’ Misstatement: “Mr. Gordon had previously falsely stated the date of
creation” for the works comprising his 2008 copyright registration. Shope Decl., ¶ 8; see also
Opp. p. 3
Truth: As can be seen by the corrected copyright registration attached to Mr. Shope’s
Declaration as Exhibit A,11 Mr. Gordon explained to the Copyright Office that “constituent parts
of the work were completed by 1999” but that he “engaged in acts of authorship through 2008.”
This means that “constituent parts” of the works that were registered by Mr. Gordon with the
U.S. Copyright Office in 2008 had been “completed by 1999.” Defendants have no idea what
parts of Mr. Gordon’s works were completed in 1999 yet they brazenly assert that Mr. Gordon
“falsely stated” this date.
Defendants’ Misstatement: “Plaintiff has deceptively altered the image of Kung Fu Panda
that was included in the complaint and this motion.” Opp. p. 9.
Truth: Page 10 of Defendants’ opposition memo depicts an image found on the Internet
and page 9 depicts the same image without the background characters. Defendants’ giant panda
10
11

Dkt. No. 41-3.
Dkt. No. 40-1.
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and red panda appear to be a mere duplication of Mr. Gordon’s giant panda and red panda, and
this is clear regardless of whether the background characters are included in Defendants’ image.
III.

ARGUMENT
A.

The Tactics Employed By Defendants’ Agents Are Illegal and Unethical

Defendants claim that their investigation “was intended solely to determine whether the
Plaintiff had a history of fraud, and to attempt to verify the truth (or lack thereof) of various
allegations in the complaint.” Opp. p. 4. A purported “history of fraud” could have been
conducted, and indeed was conducted, by a simple check of public records. Mr. Shope in fact
relies on “public records” to attest to various allegations about Mr. Gordon, yet he fails to
support his allegations with copies of the public records upon which he relies.12 Also, it is
inconceivable how asking Mr. Gordon’s neighbors if they know Mr. Gordon, or if they have seen
him around, and questioning individuals, who Mr. Gordon has not seen in decades, would
“verify the truth” of the allegations in the complaint.
Defendants further claim that their investigators’ tactics were reasonable because “the
individuals that were interviewed did so voluntarily. . .” Opp. p. 4. However, the minor child
who was questioned by Defendants’ investigators certainly did not answer questions with the
consent of his parents.13 As for the adults who were questioned by Defendants investigators,
they “did so voluntarily” because they had been misled as to the true purpose of the interview.14
On page 15 of their opposition, Defendants’ rely upon Mass R. Prof. C. 1.3, which
provides that “a lawyer should represent a client zealously within the bounds of the law.” That is

12

Shope Decl., ¶12. [Dkt. No. 40.]; see also Opp. p. 11.
See Oct. 28, 2011 Declaration of Virgina Alfonso. [Dkt. No. 43.]
14
See Gordon Decl., ¶¶ 10, 12, 13; Oct. 27, 2011 Declaration of Lisa Dominguez; Oct. 28, 2011
Declaration of Cherlande Lubin; Oct. 28, 2011 Declaration of Derek Tuttle. [Dkt. Nos. 42, 44,
45, 48.] See also Martinez Decl.
13

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the exact same rule that Mr. Shope’s former partner at Foley Hoag relied on to justify his actions;
the Massachusetts Supreme Court’s response was:
Where [the duty to uphold the integrity of the justice system] is in seeming
conflict with the client's interest in zealous representation, the latter's interest must
yield. Were we to condone any action to the contrary, the integrity of the judicial
process would be vitiated.” Matter of Neitlich, 413 Mass. 416, 423, 597 N.E.2d
425 (1992). The duty of zealous advocacy does not extend to engaging in conduct
intended to harm the orderly administration of justice, or the public's perception
of unbiased adjudication.
In re Crossen, 450 Mass. 533, 563 (Mass. 2008).
Defendants claim that they “have not located a single authority where conduct remotely
related to that alleged by Gordon has given rise to sanctions for professional misconduct.”
Opp. p. 17. Apparently, they failed to come across In re Crossen and also overlooked Mass.
Inst. of Tech. v. ImClone Sys., 490 F. Supp. 2d 119 (D. Mass. 2007), where Judge Stearns
imposed sanctions on defense counsel, ordered that plaintiff be reimbursed for its fees and costs,
and permitted plaintiff to offer evidence of the improper conduct of defense counsel at trial
because “the actions of [defendant] through its attorney-agents prejudiced [plaintiff’s] ability to
prosecute the litigation by depriving it of the cooperation of the witness who as a principal
inventor. . . and was arguably the person most knowledgeable about the validity of [plaintiff’s]
claims against [defendant].” Id., at 125. This is exactly what Defendants set out to do here —
harass and intimidate Mr. Gordon, who is “arguably the person most knowledgeable” about his
claims, so that he is unable to prepare for his deposition, hinder his ability to prosecute this
litigation and attempt to make the process so onerous for Mr. Gordon that he will simply drop
this suit.

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B.

Defendants’ Cases Do Not Justify Their Agents’ Illegal and Unethical Tactics

Defendants cite four right to privacy cases to support the purported legitimacy of their
conduct. None of them apply to the facts here and even contain language that supports
Plaintiff’s arguments.15
Defendants rely on a right of privacy case, DiGirolamo v. D.P. Anderson & Associates,
Inc., 10 Mass. L. Rep. 137, 1999 Mass. Super. LEXIS 190 (Mass. Super. 1999) (Gants, J.) to
assert that “surveillance of [a] plaintiff [is] ‘perfectly appropriate.’” Opp. p. 14. In this case,
Jean DiGirolamo received workers' compensation benefits after breaking her leg while working
as a skate guard at a Metropolitan District Commission rink. The Public Employment
Retirement Administration retained a private investigative agency, defendant D.P. Anderson &
Associates, to conduct a visual surveillance of Ms. DiGirolamo to determine whether she was
mobile and physically active. What the Court actually stated was that “it is perfectly appropriate
for a private investigator to conduct a visual surveillance of a person who has applied for
workers' compensation benefits in order to guard against the possibility of a fraudulent or
inflated claim.” DiGirolamo, ; 1999 Mass. Super. LEXIS 190, at *6 (emphasis added). This is
not a workers’ compensation case.
Defendants also rely on Figured v. Paralegal Technical Services, Inc., 231 N.J. Super.
251, 255-256, appeal dismissed, 121 N.J. 666 (1989) to assert that “conducting surveillance of
litigant from [a] parked car in front of [her] house, staring at plaintiff as she drove by, and
following her in public places was reasonable.” Opp. p. 14. Again, Figured addresses the
appropriateness of surveillance in an entirely different context, i.e., personal injury. In this right
15

Defendants also cite to Commonwealth v. Drumgoole, 49 Mass. App. Ct. 87, 90, rev. denied,
432 Mass. 1101 (2000) and Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 537 (Mass. App.
Ct. 2010). These cases are witness intimidation cases where the court found that there was
sufficient evidence to find witness intimidation pursuant to the Massachusetts’ witness
intimidation statute, ALM GL ch. 268, § 13B.
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of privacy case, the plaintiff was in an automobile accident and claimed to have suffered
physical, emotional and psychological injuries. The liability carrier for the other vehicle
involved in the accident retained defendant Paralegal Technical Services to investigate plaintiff's
injury claims. The court in Figured held that an individual “who seeks to recover damages for
alleged injuries must expect that her claim will be investigated.” Id., at 258 (emphasis added.)
But the court cautioned that even when surveillance is warranted to ascertain whether alleged
physical injury has occurred, that surveillance “must be reasonably conducted and may not
involve an intrusion into the privacy of the claimant which could be deemed highly offensive to a
reasonable person…” Id. Mr. Gordon’s case is not a personal injury case and the way in which
Defendants have conducted their surveillance would be highly offensive to a reasonable person
and was in fact highly offensive to Mr. Gordon.
Defendants also rely on Forster v. Manchester, 410 Pa. 192, 197-98 (1963), another right
of privacy case, for the proposition that the “tailing” of Mr. Gordon was “not unreasonable” in
light of a Massachusetts private investigator statute. Opp. p. 14. Again, the holding in this case
is, on its face, wholly inapplicable. In Forster, the Court held that “by making a claim for
personal injuries” a person “must expect reasonable inquiry and investigation to be made of her
claim and to this extent her interest in privacy is circumscribed.” Id. at 196-7 (emphasis added).
Lastly, Defendants cite to Joyce v. SCA, 1984 U.S. Dist. Lexis 21555 (D. Mass. 1984),
another right of privacy action arising out of an injury resulting from an industrial accident, a
workmen’s compensation claim, and an investigation of that claim by an insurance company.
Opp. p. 13. This case is consistent with the others described above: reasonable surveillance may
be appropriate in a personal injury case. But this is not a personal injury case, and the illegal and
unethical tactics of Defendants’ investigators have not been reasonable or appropriate.

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C.

Defendants’ Improper Tactics Are Not Confined To Their Agents

It is clear from the declarations attached to Mr. Gordon’s opposition to Defendants’
Motion to Dismiss, and the declaration of Mr. Martinez attached hereto, that Defendants’ agents
have engaged in a campaign of harassment and subterfuge against Mr. Gordon. However, this
campaign did not begin with Defendants’ private investigators. On March 29, 2011, counsel for
the parties held a “meeting,” prompted by Mr. Zavin, to discuss Mr. Gordon’s claims. When
proposing this meeting, Mr. Zavin specifically explained that it would not be a settlement
conference:
“We also suggested that it might be useful to have an early meeting with you and
Greg (and your client if you wish), to explain to you the background of the
creation of Kung Fu Panda, and show you some of the evidence regarding
independent creation. As I told you in our conversation, the purpose of this
meeting would not be to “settle” the case, since DreamWorks is not willing to pay
anything on this claim. Rather, we would be willing to show you some of the
evidence so that you and your client could consider whether this is a case that is
worth pursuing, considering the time and expense that it will entail.”16
At this meeting, defense counsel presented a Power Point presentation to Plaintiff’s
counsel. During the presentation, counsel for DreamWorks represented that their client had
located only one reference to Mr. Gordon in their files. Counsel then displayed a PowerPoint
slide that purported to depict a rejection letter sent from DreamWorks to Mr. Gordon in 1999.
Counsel for DreamWorks underscored the fact that this purported rejection letter showed that
Mr. Gordon’s submission had been returned unread.
Plaintiff’s counsel requested copies of the Power Point presentation to assist in the
evaluation of how or whether to pursue the suit. DreamWorks agreed, subject to numerous
conditions, including that the presentation could not be copied, disclosed to anyone other than
Plaintiff and Plaintiff’s counsel, and had to be returned to Ms. Huston at Foley Hoag at the
16

November 10, 2011 Declaration of Kristen McCallion, Ex. A (emphasis added).
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conclusion of the evaluation.17 Despite Mr. Zavin’s express qualification that the meeting was
not a settlement conference, Ms. Huston invoked Federal Rule of Evidence 408 with respect to
the Power Point shown at that meeting, claiming that “the PowerPoint is provided as part of
settlement discussions subject to F.R.E. 408.”18 Fed. R. Evid. 408, however, is not designed to
exclude factual evidence that is otherwise discoverable, such as the rejection letter purportedly
represented in the Power Point.
After returning the Power Point to Ms. Huston, and reviewing the documents produced
by DreamWorks, counsel for Plaintiff noticed that the alleged rejection letter to Mr. Gordon that
had been displayed in the Power Point at the March 29 meeting had not been produced.
Accordingly, on September 7, 2011, Mr. Gordon’s counsel requested the production of the
“letter sent by DreamWorks to Mr. Gordon dated October 15, 1999,”19 and explained that:
We were advised by your colleagues that DreamWorks had this letter in its
possession; however, it does not appear to have been produced. If you believe it
was produced, then provide the Bates number. If it was not produced, please
confirm that it has not been destroyed and produce it.20
Despite Mr. Zavin’s unequivocal position that the March 29 meeting was not a settlement
meeting, his co-counsel, nearly six months after this meeting, described it as “a privileged
settlement meeting”21 and contradicted him in another significant way, claiming for the first time
that Mr. Gordon’s counsel:
were specifically told that the letter had not been located, but were shown an
example of what the unsolicited rejection letter may have looked like – and this
example incorporated the electronic data which was recorded relating to the
rejection and return of Mr. Gordon’s submission. That record, along with a
number of form letters. . . is being produced.22
17

Id., Ex. B.
Id.
19
Id., Ex C.
20
Id.
21
Id., Ex. D.
22
Id. (emphasis added)
18

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“That record” was later produced by DreamWorks. In particular, DreamWorks produced
a screen shot which verifies that on October 14, 1999, a submission from Jayme Gordon to
Jeffrey Katzenberg (the CEO of DreamWorks) was received.23 The screen shot also shows that
Mr. Gordon purportedly received form letter #8 in response.24 However, form letter #8, which
contains a clause stating that all materials are being returned unread, was not the rejection letter
Mr. Gordon actually received.25 Instead, the letter Mr. Gordon received makes no mention of
returning his submission.26 After DreamWorks’ counsels’ misrepresentations at the nonsettlement meeting that DreamWorks had sent Mr. Gordon a rejection letter which stated that his
submission was being returned unread, and after displaying a Power Point at this same meeting
which purportedly contained this fictitious letter, now, in their opposition, Defendants rely only
on the letter produced by Mr. Gordon for their new proposition that “no material was actually
sent to DreamWorks” by Mr. Gordon. Opp. p. 6. Having failed in their mission to try to
convince Mr. Gordon’s counsel that DreamWorks had proof that Mr. Gordon’s submission was
returned unread, DreamWorks now reverses course and argues to this Court that there never was
a submission at all.
DreamWorks should be ordered to produce the bogus PowerPoint immediately. The law
is clear: Fed. R. Evid. 408 “is inapplicable if offered to show that a party made fraudulent
statements in order to settle a litigation.” Potenza v. City of New York Dept. of Transp., 2008
WL 346369, at *2 (E.D.N.Y. Feb. 6, 2008) see also DeLuca v. Allied Domecq Quick Serv.
Rests., 2006 U.S. Dist. LEXIS 68328, at *4-5 (E.D.N.Y. Sept. 22, 2006) (“[I]t is well settled that

23

Id., Ex. E.
Id., Ex. F.
25
See Nov. 1, 2011 Declaration of David Grossman, Ex. A. [Dkt. No. 41-1.]; and Oct. 19, 2011
Declaration of Jonathon Zavin, Ex. A. [Dkt. No. 38-1.]
26
Id.
24

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Rule 408 is inapplicable when the claim is based upon some wrong that was committed in the
course of the settlement discussions.”); Uforma/Shelby Bus. Forms, Inc. v. NLRB, 111 F.3d 1284
(6th Cir. 1997) (Rule 408 inapplicable when the claim is based upon a wrong that is committed
during the course of settlement negotiations). Further, the Advisory Committee Notes to Rule
408 explain that “evidence, such as documents, is not rendered inadmissible merely because it is
presented in the course of compromise negotiations if the evidence is otherwise discoverable.
A party should not be able to immunize from admissibility documents otherwise discoverable
merely by offering them in a compromise negotiation.” Fed. R. Evid. 408, Advisory
Committee’s Note; see also Phoenix Solutions, Inc. v. Wells Fargo Bank, N.A., 254 F.R.D. 568,
584 (N.D. Ca. 2008) (ordering party to produce all documents).
The egregiousness of Defendants’ actions thus far is crystal clear. First, they fabricated a
letter they did not have, which they then used to try to persuade Mr. Gordon’s counsel to
voluntarily dismiss this case. After that didn’t work, they noticed Mr. Gordon’s deposition and
then embarked on a campaign of deliberate and overt surveillance to send Mr. Gordon and his
family the message that if he testified at his upcoming deposition, and ultimately pursues his
case, he and his family will have to endure harassment, invasive observation, and intimidation.
IV.

CONCLUSION
For the reasons explained above and in his prior memoranda of law, Mr. Gordon

respectfully requests the Court to grant his motion and to issue an Order and sanctions as
outlined in his memorandum supporting his emergency motion, which are necessary and
appropriate to compensate Mr. Gordon for the harm caused by Defendants and their counsels’
misconduct, to preserve the integrity of the Court and the judicial process, and to deter conduct
such as that displayed by Defendants and their counsel.

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Respectfully submitted,
FISH & RICHARDSON P.C.
Dated: November 15, 2011

/s/ Gregory A. Madera
Gregory A. Madera, BBO #313,020
FISH & RICHARDSON P.C.
One Marina Park Drive
Boston, MA 02210-1878
[phone]
[e-mail]; [e-mail];
[e-mail]
Juanita R. Brooks, pro hac vice
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, CA 92130
[phone]
[e-mail]
Kristen McCallion, pro hac vice
FISH & RICHARDSON P.C.
601 Lexington Avenue, 52nd Floor
New York, NY 10022
[phone]
[e-mail]
ATTORNEYS FOR PLAINTIFF
JAYME GORDON

CERTIFICATE OF SERVICE
I hereby certify that this document(s) filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-registered participants on this 15th day of
November, 2011.
/s/ Gregory A. Madera
Gregory A. Madera
22738973.doc

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