Kim v. Coach, Inc, et al

Filing 28

DECLARATION of DECLARATION OF PATRICK EAGAN IN SUPPORT OF DEFENDANT COACH, INC.S OPPOSITION TO MOTION TO COMPEL filed by Counter Claimant Coach, Inc., Defendant Coach, Inc. re 15 MOTION to Compel Rule 26(f) Initial Discovery Conference (Attachments: # 1 Exhibit Exhibits A-O, pp. 11-66, # 2 Exhibit Exhibits P-Y, pp. 67-108)(Keehnel, Stellman)

Gina Kim vs. Coach, Inc., et al.

Doc. 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. COACH, INC., a Maryland corporation, and COACH SERVICES, INC., a Maryland corporation, Defendants, and, as to Coach, Inc., counterclaim plaintiff. I, Patrick Eagan, declare as follows: 1.

THE HONORABLE RICARDO S. MARTINEZ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE GINA KIM, on behalf of a class consisting of herself and all other persons similarly situated, Plaintiffs, and, as to Ms. Kim, counterclaim defendant, No. 2:11-cv-00214-RSM

DECLARATION OF PATRICK EAGAN IN SUPPORT OF DEFENDANT COACH, INC.'S OPPOSITION TO MOTION TO COMPEL

I am one of the attorneys for Coach, Inc. ("Coach") in this lawsuit. I am an

attorney in the Seattle office of DLA Piper LLP. I have personal knowledge of the facts set forth in this declaration, and if called to do so, I can and would testify competently thereto. 2. On February 8, 2011, counsel for Gina Kim filed a complaint in the above-

captioned lawsuit (the "Lawsuit"). (Dkt. No. 1.) 3. On February 11, 2011, my colleague, Stellman Keehnel, telephoned counsel for

Ms. Kim, Jason Moore, and requested a meeting to discuss critical facts that, in our belief,
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should compel counsel for Ms. Kim to withdraw the Lawsuit. 4. On February 12, 2011, my colleague, Stellman Keehnel, sent an email to

counsel for Ms. Kim. Mr. Keehnel explained his desire and indicated his availability to meet with counsel for Ms. Kim to discuss the factual basis for the Lawsuit. A true and correct copy of that email is attached as Exhibit A. 5. On February 14, Jay Carlson, one of the attorneys for Ms. Kim, responded to

Mr. Keehnel's email. In his response, less than one week after filing the Lawsuit, Mr. Carlson refused to meet with Mr. Keehnel to discuss the factual basis for the Lawsuit unless Coach provided a "written summary" of its contentions. Mr. Carlson also requested a Rule 26(f) conference. A true and correct copy of that email is attached as Exhibit B. 6. On February 17, 2011, in response to Mr. Carlson's request for a written

summary, Mr. Keehnel sent a letter to counsel for Ms. Kim explaining why the Lawsuit was improper and violated Rule 11. Mr. Keehnel reiterated his desire to meet with opposing counsel to discuss the factual basis for the Lawsuit, and indicated his availability to do so. A true and correct copy of that letter is attached as Exhibit C. 5. On February 17, 2011, Mr. Carlson responded by email to Mr. Keehnel's letter.

In his response, Mr. Carlson stated that he would not meet with Mr. Keehnel to discuss the factual basis for the Lawsuit. Mr. Carlson further attempted to "confirm" a Rule 26(f)

conference for the next day, Friday, February 18, 2011, because Mr. Keehnel indicated in his earlier letter that he was available at that time. A true and correct copy of Mr. Carlson's email is attached as Exhibit D. 6. A Rule 26(f) conference on February 18, 2011 would have been utterly

impracticable. The lawsuit was ten days old. Coach had not had an opportunity to inquire into its records or fully consider its defenses. Coach Services, Inc., a co-defendant, had not been served ­ and still has not been served. No answer or counterclaims had been filed. Mr.

Keehnel, Mr. Riojas, and I had not had time to confer with our client regarding discovery or
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prepare properly for a Rule 26(f) conference. A Rule 26(f) conference for a large client like Coach cannot be scheduled on one day's notice. Holding a Rule 26(f) conference on February 18, 2011 would have been entirely impracticable. 7. On February 18, 2011, Mr. Carlson sent an email to Mr. Keehnel. Mr. Carlson

stated that he had hoped to hold a Rule 26(f) conference that day and stated that Mr. Keehnel "had indicated in writing that [he was] available to confer." As is clear from the

correspondence, Mr. Keehnel had done no such thing. Mr. Carlson further stated that he was unavailable from February 18, 2011 until February 28, 2011, and stated "[p]lease do not file or note any motions during that time." A true and correct copy of Mr. Carlson's February 18, 2011 email is attached as Exhibit E. 8. On February 18, 2011, Mr. Keehnel responded by email to Mr. Carlson's email.

Mr. Keehnel corrected Mr. Carlson's misstatement regarding the scheduling of a Rule 26(f) conference. A true and correct copy of Mr. Keehnel's February 18, 2011 email is attached as Exhibit F. 9. On February 19, 2011, Mr. Carlson responded by email to Mr. Keehnel's email.

Mr. Carlson purported to schedule a Rule 26(f) conference for February 28, 2011 at 2pm. The remainder of Mr. Carlson's email speaks for itself. A true and correct copy of Mr. Carlson's February 19, 2011 email is attached as Exhibit G. 10. On February 21, 2011, Mr. Keehnel responded by email to Mr. Carlson's

February 19, 2011 email. Mr. Keehnel renewed his proposal that attorneys for both sides discuss the factual basis for the Lawsuit. Mr. Keehnel also explained why Coach was not prepared to participate in a Rule 26(f) conference. A true and correct copy of Mr. Keehnel's February 21, 2011 email is attached as Exhibit H. 11. On February 28, 2011, Mr. Keehnel sent an email to counsel for Ms. Kim

requesting consent to a confidentiality agreement. Mr. Keehnel also explained, again, why Coach was not yet prepared to hold a Rule 26(f) conference. Mr. Keehnel pointed to the fact
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that Coach Services, Inc. had still not been served, that Coach's inquiry into the matter was not complete, and that Coach could not possibly be prepared to serve initial disclosures within two weeks. A true and correct copy of Mr. Keehnel's February 28, 2011 email is attached as Exhibit I. 12. On February 28, 2011, Mr. Carlson responded by email to Mr. Keehnel's

February 28, 2011 email. Mr. Carlson indicated that he would prefer to have a Rule 26(f) conference as quickly as possible. A true and correct copy of Mr. Carlson's February 28, 2011 email is attached as Exhibit J. 13. Also on February 28, 2011, Mr. Carlson responded by email to Mr. Keehnel's

February 21, 2011 email. Mr. Carlson indicated that he would not meet with Mr. Keehnel in any forum other than the required Rule 26(f) conference. A true and correct copy of Mr. Carlson's February 28, 2011 email is attached as Exhibit K. 14. Also on February 28, 2011, after the filing of the Lawsuit but before counsel for

Ms. Kim had filed their First Amended Complaint, and before Coach had filed its Answer and Counterclaims, and before counsel for Ms. Kim had filed their request for leave to file a Second Amended Complaint, and before Coach had filed its Amended Answer and Counterclaim, Mr. Keehnel and I called Mr. Carlson to confer regarding a possibility of a protective order. In our phone call, Mr. Carlson stated that he would not consider a broad confidentiality agreement before the Rule 26(f) conference. Mr. Keehnel stated that Coach would strongly prefer to share detailed information about its online anti-counterfeiting efforts. Mr. Keehnel stated that such information would establish conclusively that counsel for Ms. Kim's statements in the Complaint that Coach failed to conduct any investigation into Ms. Kim's eBay listing were demonstrably false. Mr. Keehnel further stated that such information could not be shared unless counsel for Ms. Kim would agree to keep confidential the information describing Coach's online anti-counterfeiting efforts. Mr. Keehnel stated that, if counsel for Ms. Kim would not consider either a broad confidentiality agreement or one limited to specific details
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about Coach's online anti-counterfeiting efforts, Coach would be forced to move for a protective order in order to prevent wide disclosure of highly confidential information. 15. In our February 28, 2011 telephone conference, Mr. Keehnel again explained

why a Rule 26(f) conference was impracticable. Among other reasons, Mr. Keehnel stated that Coach was considering filing a counterclaim, the filing of which would necessitate a second Rule 26(f) conference if one were held before the deadline to answer. Mr. Carlson asked if Mr. Keehnel believed that counsel for Ms. Kim had fulfilled their obligation to meet and confer prior to filing a motion to compel a Rule 26(f) conference. Mr. Keehnel stated that counsel for Ms. Kim had not fulfilled their meet and confer obligation. 16. On March 2, 2011, Mr. Carlson sent an email to Mr. Keehnel inquiring as to

why service was necessary on Coach Services, Inc. A true and correct copy of Mr. Carlson's March 2, 2011 email is attached as Exhibit L. 17. Also on March 2, 2011, counsel for Ms. Kim filed their First Amended

Complaint under Fed.R.Civ.P. 15(a). (Dkt. No. 4.) The First Amended Complaint added counsel for Ms. Kim as plaintiffs, and added a claim for declaration of no defamation. 18. 19. On March 3, 2011, Coach filed an Answer and Counterclaims. (Dkt. No. 6.) On March 9, 2011, counsel for Ms. Kim filed an answer to Coach's

counterclaim. (Dkt. No. 8.) 20. On March 16, 2011, counsel for Ms. Kim filed a motion to compel a Rule 26(f)

conference. (Dkt. No. 15.) As of March 16, 2011, it had been more than two weeks since the February 28, 2011 telephone conference between Mr. Carlson and counsel for Coach. During that time, no counsel for Ms. Kim spoke personally with any counsel for Coach. In the interim, a First Amended Complaint, an Answer and Counterclaim, and an Answer to Counterclaim had all been filed. There is simply no way that the February 28, 2011 telephone conference satisfies counsel for Ms. Kim's obligation to meet and confer as to their March 16, 2011 motion.
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20.

On March 18, 2011, I sent an email to counsel for Ms. Kim. In my email, I

indicated that Coach was prepared to hold a Rule 26(f) conference as to Ms. Kim's claims against Coach. I also indicated that the class definition in the First Amended Complaint specifically excluded former employees of Coach. Because Ms. Kim is a former Coach

employee, she was not in the class and could not serve as class representative. A true and correct copy of my March 18, 2011 email is attached as Exhibit M. 21. On March 18, 2011, Mr. Carlson responded by email to my March 18, 2011

email. Mr. Carlson stated that counsel for Ms. Kim would not agree to a limited Rule 26(f) conference. Mr. Carlson also stated that the fact that Ms. Kim was not a member of the putative class was "[e]asily fixable," although he did not state how. We were uncertain as to how or whether the class definition would be amended, especially considering that, as far as counsel for Ms. Kim knew, former employees might be subject to arbitration clauses or counterclaims arising out of their employment agreements that may defeat commonality. A true and correct copy of Mr. Carlson's March 18, 2011 email is attached as Exhibit N. 22. On March 22, 2011, counsel for Ms. Kim attempted to file an amended

complaint by "praecipe." (Dkt. No. 18.) The Clerk struck the filing. (Dkt. No. 19.) 23. Also on March 22, 2011, I indicated by email to counsel for Ms. Kim that Coach

would consent to the filing of an amended complaint. A true and correct coy of my March 22, 2011 email is attached as Exhibit O. 24. On March 24, 2011, Coach filed an Amended Answer and Amended

Counterclaim. (Dkt. No. 21.) 25. Also on March 24, 2011, I sent an email to counsel for Ms. Kim indicating that

Coach was prepared to participate in a Rule 26(f) conference and offered to propose times within the next week to complete the conference. A true and correct copy of my March 24, 2011 email is attached as Exhibit P. 26. On March 24, 2011, Mr. Carlson responded to my March 24, 2011 email. Mr.
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Carlson indicated that counsel for Ms. Kim would look at their calendars and get back to us. A true and correct copy of Mr. Carlson's March 24, 2011 email is attached as Exhibit Q. 27. On March 25, 2011, I sent an email to counsel for Ms. Kim indicating that I had

not heard back from them regarding Coach's request to schedule a Rule 26(f) conference. A true and correct copy of my March 25, 2011 email is attached as Exhibit R. 28. On March 28, 2011, I sent another email to counsel for Ms. Kim indicating that I

had not heard back from them regarding Coach's repeated requests to schedule a Rule 26(f) conference, beginning on March 24, 2011. A true and correct copy of my March 28, 2011 email is attached as Exhibit S. 29. On March 28, 2011, Christopher Carney, one of Ms. Kim's attorneys, responded

to my earlier email and stated that counsel for Ms. Kim would agree to hold a conference. A true and correct copy of Mr. Carney's March 28, 2011 email is attached as Exhibit T. 30. On March 28, 2011, I responded by email to Mr. Carney's earlier email, and

requested that counsel for Ms. Kim withdraw their motion to compel. A true and correct copy of my March 28, 2011 email is attached as Exhibit U. 31. On March 28, 2011, Mr. Carlson responded by email to my email requesting

that counsel for Coach withdraw their motion. A true and correct copy of Mr. Carlson's March 28, 2011 email is attached as Exhibit V. 32. On March 28, 2011, Mr. Carney sent an email to counsel for Coach stating that

counsel for Ms. Kim would agree to hold the Rule 26(f) conference on Thursday, March 31, 2011. Mr. Carney also stated that counsel for Ms. Kim would prefer to leave the motion to compel a Rule 26(f) conference on the Court's calendar, despite the scheduling of a Rule 26(f) conference. A true and correct copy of Mr. Carney's March 28, 2011 email is attached as Exhibit W. 33. On March 28, 2011, I responded by email to Mr. Carney's email. I asked if

counsel for Ms. Kim would agree to continue their motion by a week, so as to obviate Coach's
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response. A true and correct copy of my March 28, 2011 email is attached as Exhibit X. 34. On March 28, 2011, Mr. Carney responded by email to my email requesting a

continuance. In his email, Mr. Carney stated that, despite the fact that a Rule 26(f) conference is currently scheduled for Thursday, March 31, 2011, and despite the fact that I have spent the last five days attempting to schedule that conference, counsel for Ms. Kim would not agree to continue the hearing on their motion to compel a Rule 26(f) conference unless Coach agreed to pay $750.00. A true and correct copy of Mr. Carney's March 28, 2011 email is attached as Exhibit Y. 35. This case involves the brief removal of a listing from eBay, followed by

complete reinstatement of the listing. The bag featured in the listing had a list price of $8.50. Coach has already spent many, many times that amount just litigating this motion to compel. 36. This motion to compel was filed in violation of Ms. Kim's attorneys' obligation

to meet and confer. 37. Counsel for Ms. Kim have maintained this motion to compel in bad faith. I

indicated on March 24, 2011 that counsel for Coach was prepared to schedule a Rule 26(f) conference. It was not until March 28, 2011 that counsel for Ms. Kim agreed to schedule the conference. Further, this motion has already been mooted by the scheduling of a Rule 26(f) conference. Refusing to withdraw the motion from the Court's calendar is a waste of the Court's and Coach's resources. The fact that counsel for Ms. Kim would agree to continue the hearing for $750.00 demonstrates that there is no actual reason for refusing to continue the hearing date on this motion to compel a Rule 26(f) conference, except to cause Coach to incur the expense of drafting these opposition papers.

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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed at Seattle, Washington, this 28th day of March, 2011.

s/ Patrick Eagan Patrick Eagan, WSBA No. 42679

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WEST\223325521.1

CERTIFICATE OF SERVICE I hereby certify that on March 28, 2011, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to all counsel of record. Dated this 28th day of March, 2011. s/Stellman Keehnel Stellman Keehnel, WSBA No. 9309

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