Behind The Scenes From China Agri Tech

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 1 of 45 Page ID #:5198
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Laurence M. Rosen (SBN 219683) THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2540 Los Angeles, CA 90071 Telephone: (213) 785-2610 Facsimile: (213) 226-4684 Email: lrosen@rosenlegal.com Attorneys for Plaintiffs
Seth Aronson (SBN 100153) OMELVENEY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (212) 430-6407 Attorneys for Defendants China Agritech, Inc., Yu Chang, Yau-Sing Tang, and Gene Michael Bennett
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA THEODORE DEAN, SLAVA VANOUS, CLAIR HARPSTER, RANDOLPH DANIELS-KOLIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. CHINA AGRITECH, INC., YU CHANG, YAU-SING TANG, GENE MICHAEL BENNETT, XIAO RONG TENG, MING FANG ZHU, ZHENG ANNE WANG, CHARLES LAW, LUN ZHANG DAI, AND HAI LIN ZHANG, Defendants. CV-11-1331-RGK (PJWx) DISCOVERY MATTER DECLARATION OF JONATHAN HORNE Judge: Hon. Patrick J. Walsh Ctrm: 23 Discovery cutoff: September 5, 2012 Pretrial conference: November 19, 2012 Trial date: November 27, 2012
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DECLARATION OF JONATHAN HORNE Jonathan Horne, pursuant to 28 U.S.C. 1746, declares: 1. 2. I am an attorney at The Rosen Law Firm, P.A. I make this declaration from personal knowledge. If called to the stand
I would testify to the facts as follows. 3. Attached as Exhibit 1 to this declaration is a true and correct copy of
an email I sent to William Pao, counsel for China Agritech, sent on April 23, 2012. 4. Attached as Exhibit 2 to this declaration is a true and correct copy of
an email I sent to William Pao, counsel for China Agritech, on April 28, 2012. 5. Attached as Exhibit 3 to this declaration is a true and correct copy of
an email I sent to William Pao, counsel for China Agritech, on April 29, 2012. 6. Attached as Exhibit 4 to this declaration is a true and correct copy of
an email William Pao sent to me on April 30, 2012. 7. Attached as Exhibit 5 to this declaration is a true and correct copy of
an email I sent to William Pao, counsel for China Agritech, on April 29, 2012. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 4, 2012. /s/ Jonathan Horne
EXHIBIT 1
Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 4 of 45 Page ID #:5201 Jonathan Horne
From: Sent: To: Cc: Subject: Jonathan Horne Monday, April 23, 2012 9:49 AM 'Pao, William' Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip RE:
ThankyouforthatclarificationWill. However,youdidissuea30(b)(6)subpoenato"TheRosenLawFirm,P.A."Evenifthatwasaproperwaytorequest testimonyofathirdparty,asopposedtoFRCP45ortheHagueConvention,asweindicatedtoyouseveraltimes including,Ibelieve,severaltimesbeforeyouissuedyoursubpoenaourinvestigatorsarenotouremployees. NowthatyouhaveclarifiedthatyouarenotseekingthetestimonyofTheRosenLawFirm,wewouldappreciateitifyou withdrewyoursubpoenaseekingtestimonyofTheRosenLawFirm.Otherwisewewillbeforcedtomovetoquash.

From: Pao, William [mailto:WPao@omm.com] Sent: Monday, April 23, 2012 2:43 AM To: Jonathan Horne Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
Thanks. And just so theres no confusion, we would like to depose the investigator and not counsel-unless, for some reason, they are fact witnesses themselves. Lets discuss our positions after we get your objections.
From: Jonathan Horne [mailto:JHorne@rosenlegal.com] Sent: Saturday, April 21, 2012 10:50 AM To: Pao, William Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
That's fine. If you think you have a good faith basis to move to compel the deposition of opposing counsel, I'm not going to stop you from putting that issue before the Court. From: Pao, William [WPao@omm.com] Sent: Saturday, April 21, 2012 1:41 PM To: Jonathan Horne Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
Jonathan,
Both motions are going to deal with the 30(b)(6) subpoena and whether the deposition proceeds. It makes sense to discuss everything at once and also tee up everything at once. Further, I believe you are serving Plaintiffs objections on Monday. We are talking about a few days. I dont understand the rush. Lets save everyones time and do it together. Thanks again.
Will

Will -- we are more than happy to meet and confer on your motion to compel. As I tried to explain to you on the phone - my apologies if it was less than crystal clear -- our motion to quash your subpoena is based on a different standard, involves different issues, is ripe, and does not rely on our objections. We will move to quash based on the ground that you have asked to depose opposing counsel, and do not meet the established standard to do so. That doesn't depend on our responses to your subpoena.
Here are the citations again. Note that the Ninth Circuit opinion is unpublished prior to 2007, but the standard is uncontroversial.
"A party seeking to depose opposing counsel such as Hauser must show that (1) the
desired information cannot be obtained by any other means; (2) the desired information is relevant and non-privileged; and (3) the desired information is crucial to the preparation of the case. See Massachusetts Mutual Life Ins. Co. v. Cerf, 177 F.R.D. 472, 479 (N.D.Cal.1998); Caterpillar, Inc. v. Friedemann, 164 F.R.D. 76, 78 (D.Or.1995). " Willer v. Las Vegas Valley Water Dist., 176 F.3d 486, 1999 WL 274472, at *2 (9th Cir. 1999).

From: Pao, William [WPao@omm.com] Sent: Saturday, April 21, 2012 1:16 PM To: Jonathan Horne Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
Jonathan,
Please include me in future emails about this case. As for meeting and conferring about Plaintiffs motion to quash the 30(b)(6) subpoena, we will of course make time to discuss with you as soon as possible. But as I explained, given that Plaintiffs plan to serve us with objections sometime next week, it makes the most sense to meet and confer after we have received Plaintiffs objections. We will likely file a motion to compel, and, given the overlap in issues, we can discuss everything together.
Also, we tried pulling some of the cases you cited over the phone yesterday but were unable to do so. Could you give us the citations again? Thanks again. Have a great weekend.
Will

From: Jonathan Horne [mailto:JHorne@rosenlegal.com] Sent: Friday, April 20, 2012 3:28 PM To: Schachner, Natalie; Rosen, Laurence; Kim, Phillip Cc: Aronson, Seth; Vespremi, Roberta; Gould, Courtney Subject: RE:
Will&Courtney:
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Tosummarizeourconversation,youwillgetbacktousassoonaspossiblewithyouravailabilitytomeetregardingour motiontoquashyoursubpoena. Regards, Jonathan

From: Jonathan Horne Sent: Friday, April 20, 2012 3:59 PM To: 'Schachner, Natalie'; Rosen, Laurence; Kim, Phillip Cc: Aronson, Seth; Vespremi, Roberta; Gould, Courtney Subject: RE:
Counselwhatisyouravailabilitytomeetandconferregardingouranticipatedmotiontoquashyoursubpoena?
From: Schachner, Natalie [mailto:NSchachner@OMM.com] Sent: Friday, April 20, 2012 11:21 AM To: Jonathan Horne; Rosen, Laurence; Kim, Phillip Cc: Aronson, Seth; Vespremi, Roberta; Gould, Courtney Subject: RE:
Jonathan, Attachedisawordversionofthe30(b)(6)deponoticetotheRosenLawFirm. Thanks, Natalie
Natalie Schachner O'Melveny & Myers LLP 400 S. Hope St., Los Angeles CA 90071 213.430.8185 nschachner@omm.com
ThismessageandanyattacheddocumentscontaininformationfromthelawfirmofO'Melveny&MyersLLPthatmaybe confidentialand/orprivileged.Ifyouarenottheintendedrecipient,youmaynotread,copy,distribute,orusethisinformation.If youhavereceivedthistransmissioninerror,pleasenotifythesenderimmediatelybyreplyemailandthendeletethismessage.
From: Jonathan Horne [mailto:JHorne@rosenlegal.com] Sent: Friday, April 20, 2012 7:46 AM To: Schachner, Natalie; Rosen, Laurence; Kim, Phillip Cc: Aronson, Seth; Vespremi, Roberta; Gould, Courtney Subject: RE:
Nataliepursuanttotheagreementinthislitigation,canyousendusawordversion? Thanks.
From: Schachner, Natalie [mailto:NSchachner@OMM.com] Sent: Monday, March 26, 2012 8:07 PM To: Rosen, Laurence; Kim, Phillip; Jonathan Horne
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Cc: Aronson, Seth; Vespremi, Roberta; Gould, Courtney Subject:
Counsel Attachedpleasefinda30(b)(6)subpoenaandNoticeofDepositionforthedepositionofadesigneeofTheRosenLaw FirmtotestifyonmattersdescribedinExhibitAoftheNoticeofDeposition.Thesedocumentswereservedbyhand todaytoyour355SouthGrandaddress.YouwillseethatwenoticedthedepositionforApril19inourofficesinLos AngelesandrequesttheproductionofdocumentsdescribedinExhibitBnolaterthanApril12.Wearewillingtowork withyouonthedatesandlocation. Thanks, Natalie
EXHIBIT 2
From: Sent: To: Cc: Subject: Jonathan Horne Saturday, April 28, 2012 2:14 PM Jonathan Horne; Pao, William Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip RE:
Will -- this is your opportunity to correct the record, if you feel a correction is appropriate. I will be declaring to all the facts below. Second -- think of this as a last-ditch attempt to prevent you from trying to do something you never should have tried to do in the first place. Because you issued a 30(b)(6) subpoena to The Rosen Law Firm, you will be seeking to compel The Rosen Law Firm to provide testimony. The Rosen Law Firm is opposing counsel, and both the rules of professional responsibility and the rules of evidence prevent us from giving testimony in a case in which we are counsel. As a fair warning, we cannot think of a proper purpose to seek to obtain testimony from opposing counsel, and we cannot imagine that your position is supported by any argument for extension of existing case law, let alone a non-frivolous one, which is why I asked you repeatedly for cases -- from anywhere -- supporting your position. Consequently, it is our belief that your motion to compel violates Rules 11(b)(1) and 11(b)(2), and we intend to seek sanctions against whoever signs it. Same with your opposition to your motion to quash. Regards, Jonathan From: Jonathan Horne Sent: Friday, April 27, 2012 5:54 PM To: Pao, William Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
Thisconfirmsthemattersdiscussedatourmeetandconfer: (1)WeaskedyouwhetheryouwouldwithdrawyoursubpoenatoTheRosenLawFirm.Youdeclined. (2)Youstatedthatyourpurposeinissuinga30(b)(6)subpoenatoTheRosenLawFirmwastoobtainfacttestimony fromPlaintiffs'investigator. (3)Youstatedthatyouwereunabletoobtaintestimonyfromourinvestigator.Youdidnotaskforourhelpinobtaining ourinvestigator'stestimony. (4)Youstated,butwedenied,thatwehavemadeourinvestigatorunavailable. (5)Youstatedthatyoudidnotwanttodeposeopposingcounselunlesstheywerefactwitnesses. (6)Iaskedyouwhetheryouhadanyauthoritysupportingyourpositionthatitwasappropriatetoseeka30(b)(6) testimonyofopposingcounsel.YoustatedthatthetextofRule30permitsentitiestodesignateanyone,including independentcontractors,as30(b)(6)witnesses. (7)Youaskeduswhetherwewouldberelyingonourinvestigator'stestimonyattrialifwedidnotmakehimavailableto youfordeposition.WereferredyoutotheFederalRulesofEvidence. Doesthiscomporttoyourrecollection? Thanks.
From: Pao, William [mailto:WPao@omm.com] Sent: Friday, April 27, 2012 12:44 PM To: Jonathan Horne
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Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
Great. Well call you then. Thanks.
From: Jonathan Horne [mailto:JHorne@rosenlegal.com] Sent: Thursday, April 26, 2012 6:28 AM To: Pao, William Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
That works.
From: Pao, William [WPao@omm.com] Sent: Thursday, April 26, 2012 2:34 AM To: Jonathan Horne Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
Tomorrow is difficult, but I can do Friday. Does 2pm PT work? Thanks.
From: Jonathan Horne [mailto:JHorne@rosenlegal.com] Sent: Wednesday, April 25, 2012 6:05 PM To: Pao, William Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
As a reminder, please give us your availability to meet-and-confer regarding our motion to quash your 30(b)(6) subpoena issued to The Rosen Law Firm.
From: Pao, William [WPao@omm.com] Sent: Monday, April 23, 2012 2:43 AM To: Jonathan Horne Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
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Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 11 of 45 Page ID #:5208 Jonathan,
Will

Jonathan,
Will
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Will&Courtney: Tosummarizeourconversation,youwillgetbacktousassoonaspossiblewithyouravailabilitytomeetregardingour motiontoquashyoursubpoena. Regards, Jonathan

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From: Schachner, Natalie [mailto:NSchachner@OMM.com] Sent: Monday, March 26, 2012 8:07 PM To: Rosen, Laurence; Kim, Phillip; Jonathan Horne Cc: Aronson, Seth; Vespremi, Roberta; Gould, Courtney Subject:
EXHIBIT 3
From: Sent: To: Cc: Subject: Will -Just so we're clear -- a 30(b)(6) deposition is the deposition of an organization. You've requested the 30(b)(6) deposition of The Rosen Law Firm. The consequence is that, should we designate our private investigator as 30(b)(6) deponent, he would be testifying not on behalf of himself but on behalf of The Rosen Law Fim. The Rosen Law Firm is prevented by both the rules of evidence and the rules of professional resposibility from testifying in an action in which it is counsel. That point having been drawn out for you -- twice now -- I cannot imagine a good-faith reason for you not to realize it. Nevertheless, you seek to compel us to produce a 30(b)(6) witness, and you are refusing to withdraw your 30(b)(6) deposition. Hence, we will be moving for sanctions under Rule 11 -- as well as costs and fees under Rule 37 -- for your advancing a position that is patently without merit, and, apparently, advanced for the sole purpose of harrassment. We've explained to you several times that we have no control over our private investigators. We cannot "produce" them at will, as you continue to declare that we can. They are third parties. Corrections -- You incorrectly state that I said we will not be producing the third party investigators. I said we will not be producing their testimony in violation of the rules of evidence (and, implicitly, Rule 26 of the Rules of Civil Procedure). We did not agree to set hearing dates for the earliest available hearing date. Nevertheless, I am agreeing to it now. If you did not receive a privilege log, you will be receiving one promptly. Regards, Jonathan From: Pao, William [WPao@omm.com] Sent: Saturday, April 28, 2012 3:37 PM To: Jonathan Horne Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE: Jonathan Horne Sunday, April 29, 2012 10:31 AM Pao, William Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip RE:
Jonathan,
I want to clarify the points you made in your original email as well as add some additional points.
First, you are correct that we are not withdrawing the 30(b)(6) notice. You told me that Plaintiffs will move to quash to preclude the deposition from proceeding. As I explained, Defendants plan to move to compel. Given some overlap in issues, we agreed to set both motions for hearing on the same date. To that end, we also agreed to exchange joint stipulations next Friday, May 4, 2012, and, based on that date, set the motions to be heard on the earliest available hearing date.
Second, we would like to depose Plaintiffs investigators and not counselunless, for some reason, they are fact witnesses themselves. We believe the investigators are the most qualified to testify on the topics listed in the 30(b)(6) notice, and that the Rosen Law Firm can designate them to testify on those topics. And in light of the circumstances, we believe that seeking the deposition of the investigators in this way is warranted. Specifically, our basic position is that Plaintiffs have placed the
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Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 16 of 45 Page ID #:5213 purported investigation at the heart of their complaint. Plaintiffs have refused to make the investigators available for deposition. Plaintiffs themselves claim they know nothing about the investigation. We have no subpoena power in China, which we understand is where the investigators are located.
While I do not believe we specifically discussed this, you are correct that we anticipate that most of the investigators testimonies would go to facts. I dont know if and how broadly Plaintiffs plan to assert privilege or work product as to the investigators (as opposed to counsel), which you and I did not discuss. But we believe that the law is clear that Defendants are entitled to discovery on the investigators and their work because Plaintiffs have put that at issue in their complaint.
Third, I disagree that we did not ask for Plaintiffs counsels help in obtaining the investigators testimony. We repeatedly asked your office for dates to depose the investigators. But your office has refused to make them available.
Fourth, what I said was that Plaintiffs counsel have so far refused to make the investigators available for deposition. Please see above.
Fifth, what I stated was that we would like to depose the investigators and not opposing counsel, unless they are fact witnesses themselves.
Sixth, you asked for authority as to how we can depose Plaintiffs investigators through a 30(b)(6) deposition. I told you that the law, including the Federal Rules of Civil Procedures, is clear that the Rosen Law Firm may designate the investigators, even if they are not employees. Please see above for the facts that warrant seeking the investigators depositions in this way.
Seventh, I asked you whether Plaintiffs plan to use declarations from the investigators or have the investigators testify at trial. You told me that that Plaintiffs would not and could not do so if Plaintiffs did not make them available to Defendants for deposition. You then directed me to the Federal Rules of Evidence.
Eighth, I asked you about the documents that we received on April 16, 2012, that relate to the purported investigation Plaintiffs conducted. I specifically asked you if that was the universe of documents relating to all of the allegations in Plaintiffs Amended Complaint concerning Plaintiffs own investigation. You told me, yes, the documents that we received from Plaintiffs on April 16, 2012, and the documents logged on a privilege log constitute the entire universe of documents that Plaintiffs have relating to Plaintiffs purported investigation and all the allegations in the Amended Complaint about the investigation. We took a look in our files and did not see a privilege log. Please send that to us as soon as possible.
Finally, I would appreciate it if future meet-and confer discussions can take a more civil tone. While I understand that the Parties and their counsel may disagree, I sincerely believe that we can address any disagreements civilly, without resorting to laughing, ridiculing, shouting, and name callingall of which you did to Natalie and me yesterday. Please do not do that again.
Will

From: Jonathan Horne [mailto:JHorne@rosenlegal.com] Sent: Friday, April 27, 2012 2:54 PM To: Pao, William
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Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
From: Pao, William [mailto:WPao@omm.com] Sent: Friday, April 27, 2012 12:44 PM To: Jonathan Horne Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
That works.
Jonathan,
Will
desired information cannot be obtained by any other means; (2) the desired information
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Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 19 of 45 Page ID #:5216 is relevant and non-privileged; and (3) the desired information is crucial to the preparation of the case. See Massachusetts Mutual Life Ins. Co. v. Cerf, 177 F.R.D. 472, 479 (N.D.Cal.1998); Caterpillar, Inc. v. Friedemann, 164 F.R.D. 76, 78 (D.Or.1995). " Willer v. Las Vegas Valley Water Dist., 176 F.3d 486, 1999 WL 274472, at *2 (9th Cir. 1999).

Jonathan,
Will


From: Schachner, Natalie [mailto:NSchachner@OMM.com] Sent: Friday, April 20, 2012 11:21 AM
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To: Jonathan Horne; Rosen, Laurence; Kim, Phillip Cc: Aronson, Seth; Vespremi, Roberta; Gould, Courtney Subject: RE:
Natalie Schachner O'Melveny & Myers LLP 400 S. Hope St., Los Angeles CA 90071
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Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 21 of 45 Page ID #:5218 213.430.8185 nschachner@omm.com
EXHIBIT 4
From: Sent: To: Cc: Subject: Pao, William [WPao@omm.com] Monday, April 30, 2012 12:54 AM Jonathan Horne Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip RE:
Jonathan, As we repeatedly made clear to you, Defendants are entitled to depose Plaintiffs investigators because Plaintiffs have placed their purported investigation at the heart of their complaint. It is only because of Plaintiffs and Plaintiffs counsels refusal to produce them for deposition that we have no other choice but to take their depositions through a 30(b)(6). Practically speaking, we all know that Plaintiffs counsel can set up the depositions if they wanted to. Thus, if you are willing to produce the investigators to testify so as to bind Plaintiffs and not The Rosen Law Firm, we are open to it. In fact, that is exactly what we sought in the beginning. If you are serious about this offer, please give us dates by Tuesday, May 1, 2012. Weve asked your office for deposition dates for the investigators for almost five months now. We cannot drag this process out any longer. If you do not give us dates, then we have no alternative but to pursue the depositions of the investigators through Defendants 30(b)(6). Thanks. Will
From: Jonathan Horne [mailto:JHorne@rosenlegal.com] Sent: Sunday, April 29, 2012 7:31 AM To: Pao, William Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
Will -Just so we're clear -- a 30(b)(6) deposition is the deposition of an organization. You've requested the 30(b)(6) deposition of The Rosen Law Firm. The consequence is that, should we designate our private investigator as 30(b)(6) deponent, he would be testifying not on behalf of himself but on behalf of The Rosen Law Fim. The Rosen Law Firm is prevented by both the rules of evidence and the rules of professional resposibility from testifying in an action in which it is counsel. That point having been drawn out for you -- twice now -- I cannot imagine a good-faith reason for you not to realize it. Nevertheless, you seek to compel us to produce a 30(b)(6) witness, and you are refusing to withdraw your 30(b)(6) deposition. Hence, we will be moving for sanctions under Rule 11 -- as well as costs and fees under Rule 37 -- for your advancing a position that is patently without merit, and, apparently, advanced for the sole purpose of harrassment. We've explained to you several times that we have no control over our private investigators. We cannot "produce" them at will, as you continue to declare that we can. They are third parties. Corrections -- You incorrectly state that I said we will not be producing the third party investigators. I said we will not be producing their testimony in violation of the rules of evidence (and, implicitly, Rule 26 of the Rules of Civil Procedure). We did not agree to set hearing dates for the earliest available hearing date. Nevertheless, I am agreeing to it now. If you did not receive a privilege log, you will be receiving one promptly.
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Regards, Jonathan
Jonathan,
I want to clarify the points you made in your original email as well as add some additional points.
First, you are correct that we are not withdrawing the 30(b)(6) notice. You told me that Plaintiffs will move to quash to preclude the deposition from proceeding. As I explained, Defendants plan to move to compel. Given some overlap in issues, we agreed to set both motions for hearing on the same date. To that end, we also agreed to exchange joint stipulations next Friday, May 4, 2012, and, based on that date, set the motions to be heard on the earliest available hearing date.
Second, we would like to depose Plaintiffs investigators and not counselunless, for some reason, they are fact witnesses themselves. We believe the investigators are the most qualified to testify on the topics listed in the 30(b)(6) notice, and that the Rosen Law Firm can designate them to testify on those topics. And in light of the circumstances, we believe that seeking the deposition of the investigators in this way is warranted. Specifically, our basic position is that Plaintiffs have placed the purported investigation at the heart of their complaint. Plaintiffs have refused to make the investigators available for deposition. Plaintiffs themselves claim they know nothing about the investigation. We have no subpoena power in China, which we understand is where the investigators are located.
While I do not believe we specifically discussed this, you are correct that we anticipate that most of the investigators testimonies would go to facts. I dont know if and how broadly Plaintiffs plan to assert privilege or work product as to the investigators (as opposed to counsel), which you and I did not discuss. But we believe that the law is clear that Defendants are entitled to discovery on the investigators and their work because Plaintiffs have put that at issue in their complaint.
Third, I disagree that we did not ask for Plaintiffs counsels help in obtaining the investigators testimony. We repeatedly asked your office for dates to depose the investigators. But your office has refused to make them available.
Fourth, what I said was that Plaintiffs counsel have so far refused to make the investigators available for deposition. Please see above.
Fifth, what I stated was that we would like to depose the investigators and not opposing counsel, unless they are fact witnesses themselves.
Sixth, you asked for authority as to how we can depose Plaintiffs investigators through a 30(b)(6) deposition. I told you that the law, including the Federal Rules of Civil Procedures, is clear that the Rosen Law Firm may designate the investigators, even if they are not employees. Please see above for the facts that warrant seeking the investigators depositions in this way.
Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 25 of 45 Page ID #:5222 Seventh, I asked you whether Plaintiffs plan to use declarations from the investigators or have the investigators testify at trial. You told me that that Plaintiffs would not and could not do so if Plaintiffs did not make them available to Defendants for deposition. You then directed me to the Federal Rules of Evidence.
Eighth, I asked you about the documents that we received on April 16, 2012, that relate to the purported investigation Plaintiffs conducted. I specifically asked you if that was the universe of documents relating to all of the allegations in Plaintiffs Amended Complaint concerning Plaintiffs own investigation. You told me, yes, the documents that we received from Plaintiffs on April 16, 2012, and the documents logged on a privilege log constitute the entire universe of documents that Plaintiffs have relating to Plaintiffs purported investigation and all the allegations in the Amended Complaint about the investigation. We took a look in our files and did not see a privilege log. Please send that to us as soon as possible.
Finally, I would appreciate it if future meet-and confer discussions can take a more civil tone. While I understand that the Parties and their counsel may disagree, I sincerely believe that we can address any disagreements civilly, without resorting to laughing, ridiculing, shouting, and name callingall of which you did to Natalie and me yesterday. Please do not do that again.
Will

From: Jonathan Horne [mailto:JHorne@rosenlegal.com] Sent: Friday, April 27, 2012 2:54 PM To: Pao, William Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
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That works.
Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 27 of 45 Page ID #:5224 Jonathan,
Will

Jonathan,
Will
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EXHIBIT 5
From: Sent: To: Cc: Subject: Pao, William [WPao@omm.com] Saturday, April 28, 2012 3:38 PM Jonathan Horne Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip RE:
Jonathan, I want to clarify the points you made in your original email as well as add some additional points. First, you are correct that we are not withdrawing the 30(b)(6) notice. You told me that Plaintiffs will move to quash to preclude the deposition from proceeding. As I explained, Defendants plan to move to compel. Given some overlap in issues, we agreed to set both motions for hearing on the same date. To that end, we also agreed to exchange joint stipulations next Friday, May 4, 2012, and, based on that date, set the motions to be heard on the earliest available hearing date. Second, we would like to depose Plaintiffs investigators and not counselunless, for some reason, they are fact witnesses themselves. We believe the investigators are the most qualified to testify on the topics listed in the 30(b)(6) notice, and that the Rosen Law Firm can designate them to testify on those topics. And in light of the circumstances, we believe that seeking the deposition of the investigators in this way is warranted. Specifically, our basic position is that Plaintiffs have placed the purported investigation at the heart of their complaint. Plaintiffs have refused to make the investigators available for deposition. Plaintiffs themselves claim they know nothing about the investigation. We have no subpoena power in China, which we understand is where the investigators are located. While I do not believe we specifically discussed this, you are correct that we anticipate that most of the investigators testimonies would go to facts. I dont know if and how broadly Plaintiffs plan to assert privilege or work product as to the investigators (as opposed to counsel), which you and I did not discuss. But we believe that the law is clear that Defendants are entitled to discovery on the investigators and their work because Plaintiffs have put that at issue in their complaint. Third, I disagree that we did not ask for Plaintiffs counsels help in obtaining the investigators testimony. We repeatedly asked your office for dates to depose the investigators. But your office has refused to make them available. Fourth, what I said was that Plaintiffs counsel have so far refused to make the investigators available for deposition. Please see above. Fifth, what I stated was that we would like to depose the investigators and not opposing counsel, unless they are fact witnesses themselves. Sixth, you asked for authority as to how we can depose Plaintiffs investigators through a 30(b)(6) deposition. I told you that the law, including the Federal Rules of Civil Procedures, is clear that the Rosen Law Firm may designate the investigators, even if they are not employees. Please see above for the facts that warrant seeking the investigators depositions in this way. Seventh, I asked you whether Plaintiffs plan to use declarations from the investigators or have the investigators testify at trial. You told me that that Plaintiffs would not and could not do so if Plaintiffs
1
Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 32 of 45 Page ID #:5229 did not make them available to Defendants for deposition. You then directed me to the Federal Rules of Evidence. Eighth, I asked you about the documents that we received on April 16, 2012, that relate to the purported investigation Plaintiffs conducted. I specifically asked you if that was the universe of documents relating to all of the allegations in Plaintiffs Amended Complaint concerning Plaintiffs own investigation. You told me, yes, the documents that we received from Plaintiffs on April 16, 2012, and the documents logged on a privilege log constitute the entire universe of documents that Plaintiffs have relating to Plaintiffs purported investigation and all the allegations in the Amended Complaint about the investigation. We took a look in our files and did not see a privilege log. Please send that to us as soon as possible. Finally, I would appreciate it if future meet-and confer discussions can take a more civil tone. While I understand that the Parties and their counsel may disagree, I sincerely believe that we can address any disagreements civilly, without resorting to laughing, ridiculing, shouting, and name callingall of which you did to Natalie and me yesterday. Please do not do that again. Will
From: Jonathan Horne [mailto:JHorne@rosenlegal.com] Sent: Friday, April 27, 2012 2:54 PM To: Pao, William Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:

2

That works. From: Pao, William [WPao@omm.com] Sent: Thursday, April 26, 2012 2:34 AM To: Jonathan Horne Cc: Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip Subject: RE:
Jonathan,
Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 34 of 45 Page ID #:5231 Both motions are going to deal with the 30(b)(6) subpoena and whether the deposition proceeds. It makes sense to discuss everything at once and also tee up everything at once. Further, I believe you are serving Plaintiffs objections on Monday. We are talking about a few days. I dont understand the rush. Lets save everyones time and do it together. Thanks again.
Will

Jonathan,
Will

4


Nataliepursuanttotheagreementinthislitigation,canyousendusawordversion?
5
Thanks.
EXHIBIT 6
From: Sent: To: Cc: Subject: Pao, William [WPao@omm.com] Monday, April 23, 2012 2:43 AM Jonathan Horne Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip RE:
Jonathan,
Will
desired information cannot be obtained by any other means; (2) the desired information
1
Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 39 of 45 Page ID #:5236 is relevant and non-privileged; and (3) the desired information is crucial to the preparation of the case. See Massachusetts Mutual Life Ins. Co. v. Cerf, 177 F.R.D. 472, 479 (N.D.Cal.1998); Caterpillar, Inc. v. Friedemann, 164 F.R.D. 76, 78 (D.Or.1995). " Willer v. Las Vegas Valley Water Dist., 176 F.3d 486, 1999 WL 274472, at *2 (9th Cir. 1999).

Jonathan,
Will


From: Schachner, Natalie [mailto:NSchachner@OMM.com] Sent: Friday, April 20, 2012 11:21 AM
2
To: Jonathan Horne; Rosen, Laurence; Kim, Phillip Cc: Aronson, Seth; Vespremi, Roberta; Gould, Courtney Subject: RE:
Natalie Schachner O'Melveny & Myers LLP 400 S. Hope St., Los Angeles CA 90071
3
Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 41 of 45 Page ID #:5238 213.430.8185 nschachner@omm.com
EXHIBIT 7
From: Sent: To: Cc: Subject: Jonathan Horne Saturday, April 21, 2012 1:33 PM Pao, William Aronson, Seth; Schachner, Natalie; Gould, Courtney; Rosen, Laurence; Kim, Phillip RE:
Will -- we are more than happy to meet and confer on your motion to compel. As I tried to explain to you on the phone - my apologies if it was less than crystal clear -- our motion to quash your subpoena is based on a different standard, involves different issues, is ripe, and does not rely on our objections. We will move to quash based on the ground that you have asked to depose opposing counsel, and do not meet the established standard to do so. That doesn't depend on our responses to your subpoena. Here are the citations again. Note that the Ninth Circuit opinion is unpublished prior to 2007, but the standard is uncontroversial. "A party seeking to depose opposing counsel such as Hauser must show that (1) the
Jonathan,
Will

1

From: Schachner, Natalie [mailto:NSchachner@OMM.com] Sent: Monday, March 26, 2012 8:07 PM
2
To: Rosen, Laurence; Kim, Phillip; Jonathan Horne Cc: Aronson, Seth; Vespremi, Roberta; Gould, Courtney Subject:

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Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 1 of 45 Page ID #:5198

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 2 of 45 Page ID #:5199

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 3 of 45 Page ID #:5200

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 5 of 45 Page ID #:5202

Tosummarizeourconversation,youwillgetbacktousassoonaspossiblewithyouravailabilitytomeetregardingour motiontoquashyoursubpoena. Regards, Jonathan

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 6 of 45 Page ID #:5203

Jonathan, Attachedisawordversionofthe30(b)(6)deponoticetotheRosenLawFirm. Thanks, Natalie

Cc: Aronson, Seth; Vespremi, Roberta; Gould, Courtney Subject:

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 7 of 45 Page ID #:5204

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 8 of 45 Page ID #:5205

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 10 of 45 Page ID #:5207

Great. Well call you then. Thanks.

Tomorrow is difficult, but I can do Friday. Does 2pm PT work? Thanks.

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 12 of 45 Page ID #:5209

Will&Courtney: Tosummarizeourconversation,youwillgetbacktousassoonaspossiblewithyouravailabilitytomeetregardingour motiontoquashyoursubpoena. Regards, Jonathan

Jonathan, Attachedisawordversionofthe30(b)(6)deponoticetotheRosenLawFirm. Thanks, Natalie

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 13 of 45 Page ID #:5210

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 14 of 45 Page ID #:5211

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 17 of 45 Page ID #:5214

Great. Well call you then. Thanks.

Tomorrow is difficult, but I can do Friday. Does 2pm PT work? Thanks.

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 18 of 45 Page ID #:5215

Will&Courtney: Tosummarizeourconversation,youwillgetbacktousassoonaspossiblewithyouravailabilitytomeetregardingour motiontoquashyoursubpoena. Regards, Jonathan

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 20 of 45 Page ID #:5217

Jonathan, Attachedisawordversionofthe30(b)(6)deponoticetotheRosenLawFirm. Thanks, Natalie

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 22 of 45 Page ID #:5219

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 24 of 45 Page ID #:5221

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 26 of 45 Page ID #:5223

Great. Well call you then. Thanks.

Tomorrow is difficult, but I can do Friday. Does 2pm PT work? Thanks.

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 28 of 45 Page ID #:5225

Will&Courtney: Tosummarizeourconversation,youwillgetbacktousassoonaspossiblewithyouravailabilitytomeetregardingour motiontoquashyoursubpoena. Regards, Jonathan

Jonathan, Attachedisawordversionofthe30(b)(6)deponoticetotheRosenLawFirm. Thanks, Natalie

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 29 of 45 Page ID #:5226

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 30 of 45 Page ID #:5227

Great. Well call you then. Thanks.

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 33 of 45 Page ID #:5230

Tomorrow is difficult, but I can do Friday. Does 2pm PT work? Thanks.

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 35 of 45 Page ID #:5232

Will&Courtney: Tosummarizeourconversation,youwillgetbacktousassoonaspossiblewithyouravailabilitytomeetregardingour motiontoquashyoursubpoena. Regards, Jonathan

Jonathan, Attachedisawordversionofthe30(b)(6)deponoticetotheRosenLawFirm. Thanks, Natalie

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 36 of 45 Page ID #:5233

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 37 of 45 Page ID #:5234

Will&Courtney: Tosummarizeourconversation,youwillgetbacktousassoonaspossiblewithyouravailabilitytomeetregardingour motiontoquashyoursubpoena. Regards, Jonathan

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 40 of 45 Page ID #:5237

Jonathan, Attachedisawordversionofthe30(b)(6)deponoticetotheRosenLawFirm. Thanks, Natalie

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 42 of 45 Page ID #:5239

Will&Courtney: Tosummarizeourconversation,youwillgetbacktousassoonaspossiblewithyouravailabilitytomeetregardingour motiontoquashyoursubpoena. Regards, Jonathan

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 44 of 45 Page ID #:5241

Jonathan, Attachedisawordversionofthe30(b)(6)deponoticetotheRosenLawFirm. Thanks, Natalie

Case 2:11-cv-01331-RGK-PJW Document 143 Filed 05/08/12 Page 45 of 45 Page ID #:5242

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