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QUINN EMANUEL URQUHART & SULLIVAN, LLP John B. Quinn (Bar No. 090378) (j ohnquinn@quinnemanuel. com ) Bruce E. Van Dalsem (Bar No. 124128) (firstname.lastname@example.org ) B. Dylan Proctor (Bar No. 219354) (dylanpro ctor@quinnemanuel. com ) Joseph C. Sarles (Bar No. 254750) (j osephsarles@quinnemanuel. com ) 865 South Figueroa Street, 10 th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000 Facsimile: (213) 443-3100
8 Attorneys for Defendants Snapchat, Inc., Toyopa Group, LLC, 9 Evan Thomas Spiegel, and Robert Cornelius Murphy 10 11 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CENTRAL DISTRICT
CASE NO. BC501483 14 FRANK REGINALD BROWN IV, an individual, DECLARATION OF ANTHONY P. 15 ALDEN IN SUPPORT OF DEFENDANTS' Plaintiff, OPPOSITION TO DISQUALIFICATION 16 vs. MOTION 17 SNAPCHAT, INC., a Delaware corporation; Dept.: 50 18 TOYOPA GROUP, LLC, a California Limited Hon. Conrad Aragon Liability Company; EVAN THOMAS February 21, 2013 Complaint Filed: 19 SPIEGEL, an individual; ROBERT CORNELIUS MURPHY, an individual; and 20 DOES 1 through 25 inclusive, 21 22 23 24 25 26 27 28
ALDEN DECLARATION ISO DEFENDANTS' OPP'N TO DISOUALIFICATION MOTION
DECLARATION OF ANTHONY P. ALDEN
I, Anthony P. Alden, declare as follows: 1. I am an attorney at law duly licensed to practice and of good standing in the State
4 of California, and I am a partner in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP 5 ("the Firm"), counsel of record for Defendants Snapchat, Inc.; Toyopa Group, LLC; Evan Thomas 6 Spiegel; and Robert Cornelius Murphy ("Defendants"). I make the statements of fact contained in 7 this declaration on my own personal knowledge, except as to those matters stated upon 8 information and belief, and as to those matters I believe them to be true. If called as a witness in 9 this proceeding, I could and would competently testify to the matters set forth herein. 10 2. This declaration is in support of Defendants' Opposition to Plaintiff's Motion to
11 Disqualify Quinn Emanuel Urquhart & Sullivan, LLP from representation of Defendants in this 12 action ("the Motion"). 13 3. In preparing this declaration, I have thoroughly reviewed Plaintiff's Motion, the
14 Declaration of Frank Brown ("Brown Decl.") in support thereof, all communications between me 15 and Mr. Brown in my possession, and my personal notes and timekeeping records concerning the 16 matter. On the basis of this review and my personal recollection, I dispute the accuracy of many 17 of Mr. Brown's allegations concerning the nature and extent of our communications. Contrary to 18 Mr. Brown's assertions, the sum total of my contact with him --- as confirmed by my personal 19 records — was limited to two telephones calls lasting no more than 40 minutes in total, exchanging 20 a waiver agreement, and gathering limited information in order to assess the matter. My records 21 confirm that in none of our oral and written communications did I discuss, in detail or otherwise, 22 (a) "the strengths and weakness" or "important and strategic issues" related to potential litigation, 23 (b) any "suggestions," (c) give him legal advice, or (d) inform Mr. Brown that I was in the process 24 of discussing the case with my partners at the Firm. (Cf. Brown Decl., at 2:17-20, 3:5-6.) Indeed, 25 my time records reflect that I spent no more than 2.1 hours on the matter in total, of which no 26 more than 30 minutes was actually devoted to substantive assessment. 27 28
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ALDEN DECLARATION ISO DEFENDANTS' OPP'N TO DISQUALIFICATION MOTION
On October 31, 2012, I received an unsolicited email from Mr. Brown seeking
2 legal representation regarding the Snapchat matter. This is contrary to Mr. Brown's allegation that 3 he contacted me on November 1, 2012. (Brown Decl., at 1:18-21.) 4 5. Whenever a prospective client contacts the Firm seeking legal services, the Firm
5 has a standard practice and policy to obtain the client's written consent to a "Quinn Emanuel 6 Matter Assessment Waiver Agreement" ("Waiver"), such as the document attached as Exhibit B to 7 Mr. Brown's Declaration. Because the Firm receives many requests for legal services which it 8 ultimately declines, the Firm desires to ensure that it may be able thereafter to accept 9 representation adverse to a prospective client should it decide not to take on the prospective 10 client's matter. The Waiver advises the prospective client to seek counsel before signing it. 11 (Brown Decl., Ex. B, at 2, ¶ 7.) 12 6. My first telephone conversation with Mr. Brown was on November 1, 2012. It was
13 very short and less than 10 minutes long. Thus, Mr. Brown's allegation that we had an initial one 14 and a half hour conversation (Brown Decl., at 2:7-8) is inaccurate. Where a prospective client has 15 not yet signed a "Quinn Emanuel Matter Assessment and Waiver Agreement," my practice is to 16 tell the prospective client not to tell me any confidential information. The central purpose of my 17 first call with any prospective client is merely to obtain the names of the persons or entities that 18 the prospective client believes are potential adversaries in order to run a conflict check. I followed 19 these practices in my first brief telephone conference with Mr. Brown. 20 7. During my first telephone conversation with Mr. Brown, contrary to Mr. Brown's
21 allegations, I did not discuss, in any manner whatsoever, the "strengths and weaknesses" of any 22 proposed case; any "important" or "strategic issues" related to proposed litigation; and I did not 23 offer any "suggestions" or "legal advice." (Brown Decl., at 2:17-20.) 24 8. On or about November 2, 2012, consistent with the Firm's practice, I sent an email
25 to Mr. Brown enclosing a copy of the Waiver. A true and correct copy of my November 2, 2012 26 email to Mr. Brown, attaching a copy of the proposed Waiver, is attached to this declaration as 27 Exhibit A. I understand that Mr. Brown's counsel has agreed that this November 2, 2012 email 28 may be disclosed and used in the instant Motion.
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In my November 2, 2012 email, I expressly informed Mr. Brown that one of the
2 purposes of the Waiver was to ensure that discussions with prospective clients do not result in the 3 Firm being conflicted in future matters: 4 5 6 7 "Because we get many calls from different people interested in bringing law suits, many of which we do not take on, we need to ensure that our discussions with potential clients do not result in us being conflicted from acting for others down the road."
8 (Ex. A, sentence 4.) 9 10. In that same email, I informed Mr. Brown that "this [waiver] agreement provides
10 that if we do not end up representing you in this matter, you cannot disqualify us in the (unlikely) 11 event we're hired to act against you in the future." (Ex. A., sentence 5.) Rather than downplaying 12 the importance of the Waiver, I expressly informed Mr. Brown that, by signing the Waiver, he was 13 agreeing that the Firm could represent Defendants against him in this action should the Firm 14 decline to represent him, and that he was giving up his right to bring this very type of motion 15 against the Firm in the future. 16 11. Finally, in the same November 2, 2012 email, I offered to refer Mr. Brown to
17 another lawyer who could go over the Waiver with Mr. Brown. (Ex. A, sentence 7.) 18 12. Mr. Brown, has disclosed that on November 2, 2012, he signed and returned the
19 Waiver to me. (Brown Decl., Ex. B.) In the Waiver, Mr. Brown expressly agreed that any 20 information given to the Firm prior to his signing the Waiver was not confidential. (Brown Decl., 21 Ex. B, ¶ 1.) 22 13. After Mr. Brown signed and returned the Waiver, I had a second telephonic
23 conversation with him on November 2, 2012. This call was a bit longer, perhaps 20 to 30 minutes 24 long. During the November 2, 2012 telephone call, I tried to gather information from Mr. Brown 25 about the facts and circumstances of his dispute in order to assess the matter. 26 14. During this second telephone conversation, contrary to Mr. Brown's allegations, I
27 did not discuss, in any manner whatsoever, the strengths and weaknesses of any proposed case, 28 any important and strategic issues related to the proposed litigation, and I did not offer any
Case No. BC501483
ALDEN DECLARATION ISO DEFENDANTS OPP'N TO DISQUALIFICATION MOTION
1 suggestions or legal advice. I did not offer legal advice about Mr. Brown's dispute or discuss 2 strengths, weaknesses or strategy, because I did not believe that I had enough information and had 3 not conducted any legal research to have such discussions. I had not had any recent cases in the 4 area to which it seemed to me that Mr. Brown's allegations pertained, and it is not my practice to 5 offer "off-the-cuff' advice in these circumstances. 6 15. I do not recall and can find no records of any other telephone call with Mr. Brown.
7 Thus, I do not believe that Mr. Brown's allegations that we had "several" telephone calls or that 8 we had an "initial one-and one half hour conversation" are accurate. (Brown Decl., at 2:7-8.) 9 16. In preparing this declaration, I reviewed all emails in my possession from Mr.
10 Brown to me and from me to Mr. Brown. Without revealing the content of those emails, from the 11 time that Mr. Brown first contacted me on October 31, 2012, until I informed Mr. Brown that the 12 Firm would not represent him on January 10, 2013, there were a total of 22 emails between us. 13 Mr. Brown sent me a total of 10 email communications. I sent him a total of 12 email 14 communications. 15 17. Contrary to Mr. Brown's Declaration at page two, lines 17-18, in none of the 22
16 emails exchanged between us did I discuss the strengths and weaknesses of Mr. Brown's potential 17 case in any manner. The emails between Mr. Brown and me contain no discussion of important 18 or strategic issues, no suggestions, and no legal advice related to Mr. Brown's dispute, contrary to 19 the implication of Mr. Brown's declaration at page two, lines 18-20. 20 18. While Mr. Brown may assert that these emails are privileged, the actual content of
21 the emails contains no facts or information related to Mr. Brown's dispute which would be 22 confidential. Contrary to Mr. Brown's allegations: (1) the content of Mr. Brown's and my email 23 exchange did not include "issues we considered important for the prosecution of this case" (see 24 Brown Decl., at 2:15-16); (2) the content of Mr. Brown's emails did not inform me of the status of 25 his "case" (see Brown Decl., at 3:4-5); and (3) I did not "periodically inform" Mr. Brown that I 26 "was in the process of discussing the case with [my] partners at Quinn Emanuel" (see Brown 27 Decl., at 3:5-6.) I will submit these 22 emails for the Court's in camera review if the Court so 28 orders or if Mr. Brown consents.
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ALDEN DECLARATION ISO DEFENDANTS OPP'N TO DISOUALIFICATION MOTION
Mr. Brown also alleges that he sent me "key documents." (Brown Decl., at 2:23-
2 25.) As set forth below, I did not review any of the documents sent to me by Mr. Brown except 3 possibly a published article. 4 20. First, Mr. Brown sent me a package on or after November 14, 2012. (Brown Decl.,
5 ¶ 11.) The package was in a sealed envelope and I expressly did not open it. From the time I
6 received the package, presumably containing the "USB key," until I gave it to my assistant to send 7 to Plaintiff's counsel on or after February 21, 2013, the package remained sealed. Due to the press 8 of my caseload at the time, I never opened the envelope; I never accessed the USB key; and I 9 never looked at or reviewed any documents thereon. 10 21. Next, on December 12, 2012, Mr. Brown sent me an article published on the (Cf. Brown Decl., at 2:26-
11 Internet announcing that Benchmark Capital was funding Snapchat.
12 27.) Not only has Mr. Brown publicly disclosed that he informed me about this article (Id.), but 13 the article was never confidential to begin with, because it was at the time and continues to be 14 public information. As Mr. Brown has disclosed, this article reported that Benchmark funded
Snapchat sometime around December 12, 2012, more than a year after Mr. Brown was no longer
16 involved in the project. 17 22. Last, on December 15, 2012, Mr. Brown sent me an email attaching three
18 documents. Because of the press of my workload, I did not read them at the time I received them 19 or at any time prior to my preparation of this declaration. I understand that all three of these 20 documents have been produced and disclosed in the instant action, and that they are therefore no 21 longer confidential or privileged. 22 23. Thus, at no point in time prior to the preparation of this declaration did I review any
23 documents that Mr. Brown sent to me that could be considered confidential. 24 24. Mr. Brown's declaration alleges that I "periodically informed [him] that [I] was in
25 the process of discussing the case with [my] partners at Quinn Emanuel." I dispute that I so 26 advised Mr. Brown orally or in writing. I have been able to find only one email from me to Mr. 27 Brown concerning the Firm's internal process, which, contrary to Mr. Brown's allegations, does 28 not refer to a discussion with any partner about the case. (Brown Decl., at 3:5-6.)
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ALDEN DECLARATION ISO DEFENDANTS' OPP'N TO DISOUALIFICATION MOTION
After completing an assessment in this type of case, the next step in the Firm's
2 internal process would be to present the matter to the appropriate management committee for 3 consideration of the costs and benefits of the Firm representing the client prospect. Due to the 4 Thanksgiving and the end-of-year Holiday season, press of litigation matters I was handling at the 5 time and other unforeseen events, I did not continue my case assessment, did not discuss my 6 assessment with any other member of the Firm, and did not present Mr. Brown's potential case for 7 consideration to a management committee or to any other member of the Firm for representation 8 by the Firm. I also never gave suggestions, counsel or advice to Mr. Brown about a potential case, 9 including appropriate potential defendants; never discussed the strengths and weaknesses of his 10 potential case; and never discussed important or strategic issues related to the potential case, 11 including appropriate potential defendants. 12 26. On January 10, 2012, I informed Mr. Brown that the Firm and I would not
13 represent him. Thereafter, I never considered representing him again. 14 27. My time records reflect that I spent about 2.1 hours in total in assessing this matter
15 before I informed Mr. Brown that the Firm would not represent him. The vast majority of this 16 time was spent in obtaining and analyzing a conflict of interest check, preparing the Waiver, and 17 preparing an email transmitting the Waiver to Mr. Brown. Not more than 30 to 40 minutes of that 18 time was spent in telephone conferences with Mr. Brown, which involved no legal advice, 19 suggestions, or discussions of any strengths and weaknesses or strategy in a potential case. Except 20 for reviewing a few publicly available news articles, I never undertook or caused to be undertaken, 21 any legal or factual research or analyses of any nature relating to the matter. I spent less than 30 22 minutes in assessing the substance of a potential claim. 23 28. Since April 23, 2013, I have been subject to an ethical screen regarding this action.
24 On or about July 3, 2013, I retained attorney Ellen R. Peck — a specialist in legal ethics — to 25 represent me in connection with the preparation of this declaration and to coordinate with other 26 III 27 II! 28 III -6Case No. BC501483
ALDEN DECLARATION ISO DEFENDANTS' OPP'N TO DISOUALIFICATION MOTION
1 members of the Firm. I have not communicated with any other Firm member about the content or 2 the preparation of my declaration. 3 I declare under penalty of perjury under the laws of the State of California that the
4 foregoing is true and correct. 51 Executed this 17th day of July 2013, at Los Angeles, California.
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Case No. BC501483 ALDEN DECLARATION ISO DEFENDANTS' OPP'N TO DISOUALIFICATION MOTION
From: Sent: To: Subject: Attachments:
Anthony Alden Thursday, November 01, 2012 10:00 PM 'Frank Brown' RE: SnapChat Matter Assessment Waiver Agreement.pdf
Reggie: it was good speaking to you today. Our conflicts check came up clear, so no issues there. I've attached a waiver agreement I'd like you to sign. Because we get many calls from different people interested in bringing lawsuits, many of which we do not take on, we need to ensure that our discussions with potential clients do not result in us being conflicted from acting for others down the road. In essence, this agreement provides that if we do not end up representing you in this matter, you cannot disqualify us in the (unlikely) event we're hired to act against you in the future. The likelihood of this ever happening is small, but it's a precaution we need to take. if you have any questions, I'd be happy to discuss them tomorrow or I can refer you to another lawyer who could go over it with you. Thanks, Anthony
Quinn Emanuel Urquhart Oliver & Hedges LLP.
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