TABLE OF CONTENTS

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3 I.

INTRODUCTION ..............................:.................................................................................: 1

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FACTUAL BACKGROLTND ............................................................................................... 2

5

A.

Robson Repeatedly Misrepresented That He Had Completed His
Production. .........................:.............................................................:..............:......:.. 2

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B.

Robson Has Failed to Cure Previously Identified Deficiencies.....:...:...................... 5

C.

Robson Has Improperly Redacted Non-Privileged Communications...................:... 6

D.

Robson Refuses to Produce the Metadata for His Book. .......................................... 7

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III.
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Robson Has Failed to Produce Attachments to Emails............................................. 8

ARGUMENT ........................................................................................................................ 9
A.

Robson Should Be Ordered to Produce All Documents That He Agreed to
Produce and Detail His Efforts to Searck► for and Produce Documents.........'............ 9

B.

Robson Must Remove Improper Redactions. ......................................................... 10

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Robson Has Improperly Redacted Emails with His Family. ...................... 10

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Robson Has Improperly Redacted Emails Copying Helen Yu. ....:............. 11

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C.

Robson Should Produce All Missing Attachments to Emails..........................:...... 12

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Robson Should Reproduce Electronically Stored Documents with Metadata. ....... 13

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E.

Robson Should Submit to a Forensic Examination of His Accounts...................... 14

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F.

Robson Should Be Sanctioned. ............................................................................... 15

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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

INTRODUCTION

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This motion seeks an order compelling Plaintiff Wade Robson to comply with his most

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11 I.

3 -basic discovery obligations in this matter. This Court's intervention in the discovery process is
4 necessary because, over the last several months, Defendants have learned that, among other things,
5 Robson:(1) has made false statements under oath regarding the existence of documents and his.

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6 search for documents;(2) has affirmatively withheld documents that should have been produced
7 years ago; and (3) has redacted documents based on objectively frivolous assertions of privilege.

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9 of abuse in this case, Robson stated under oath that only a single responsive document existed.

10 Documents obtained by third parties, however, showed that these sworn statements by Robson
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11 were utterly false. Robson was then forced to change his response entirely, finally admitting that

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14 During this process, on three separate occasions, Robson stated that he had completed his
1S production and had produced all responsive communications. Each time that representation was
16 made, however, Defendants found clear evidence that Robson had not produced all the

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13 several bankers' boxes full of communications (that he had previously claimed did not exist at all).

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12 many communications existed and agreeing to produce theirs. Eventually, Robson would produce

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When Robson was asked to produce all written communications relating to his allegations

17' communications. Robson was then forced to "supplement" his productions three separate times,
18 and each tune he falsely represented that his latest production was "now" complete. To this day,
19 Robson has still failed to produce numerous communications with third parties and has never

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20 explained why. Moreover, Robson has also redacted the entire content of numerous emails for no
21 plausible reason. For example, he completely redacted over fifty emails between himself and his
22 mother alone, based on the absurd claim that his discussions with his (non-lawyer) mother about
23 the supposed "facts" underlying his allegations are somehow his attorneys' "work product."

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In addition, documents in one of Robson's "supplemental" productions this Fall revealed
thefirst time that Robson began writing a book, prior to filing suit in May 2013, about the

26 allegations in this case, which he unsuccessfully shopped to publishers prior to filing suit. Yet,
27 Robson inexplicably failed to produce a single draft of his book in either this case or in the related
28 probate proceedings years ago. When Defendants pressed Robson as to why the book had not been

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

1 produced long ago, Robson first claimed that he was unable tofind the book. Four days later,

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2 Robson changed his story, claiming that he had actually withheld the book as "privileged"(but
3 never logged it). He then "waived privilege," and produced one "recently created" PDF version of
4 the book.- But numerous documents about the book (including other possible drafts of it) are
5 missing or redacted, and Robson refuses to produce original electronic files with metadata. He also

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6 claims—preposterously—that his communications with publishers about the book are privileged.
7

Despite months ofback-and-forth between counsel and many opportunities for Robson to

8 fix these issues, Robson's production remains woefully deficient. In order to ensure that he does

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9 not continue to withhold crucial evidence, Robson should be ordered to (1) cure all deficiencies

10 and complete his production of documents by a date certain,(2) submit a declaration detailing his
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12 email accounts, computers, and other electronic devices. In addition, Robson should be ordered to
13 pay the fees and costs of bringing this motion and for the forensic expert.
14 II.

FACTUAL BACKGROUND

15

A.

16

On March 28, 2016, MJJ Productions, Inc., served Robson with its first set of requests for

Robson Repeatedly Misrepresented That He Had Completed His Production.

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17 production (the "First Set of RFPs"). Steinsapir Decl. Ex 1. Among other things, the First Set of
18 RFPs sought documents and communications relating to Robson's visits to the United States as a
19 child and his allegations that he was abused by Jackson. For example:
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Request No. 15 sought "All DOCUMENTS RELATING TO YOUR allegations that
YOU were abused by Michael Jackson;"

Request No. 24 sought "All DOCUMENTS RELATING TO YOUR visits to the
United States prior to YOUR 18`h birthday;" and

Request No. 32 sought "All COMMUNICATIONS and RECORDINGS on or after
May 8, 2012, between YOU and any PERSON RELATING TO allegations that
Michael Jackson sexually abused children, including but not limited to allegations that
he sexually abused YOU."

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26 Id. Ex. 1 at 5-7.
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On June 3, 2016, Robson served verified responses to the First Set of RFPs and agreed to

28 produce documents in response to the vast majority of requests—including those listed above. Id.
NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

1 ~ ~ Ex. 2. In his verified response to Request No. 32, however, Robson represented as follows:

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Id., Ex. 2 at 26(emphasis added). Consistent with his representation that

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Robson failed to produce any communications relating to his allegations of

abuse apart from the previously-produced September 7 email(an email that was discussed by the
Court at page 4 of its May 26, 2015 order granting the Estate's motion for summary judgment).

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On June 23, 2016, Defendants began to meet and confer with Robson's prior counsel

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Request No. 32. Id. Ex. 3. In their letter,
10 regarding these responses, including the response to
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11 Defendants expressed disbelief at Robson's assertion that
. Id. at 2-3.

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Request No. 32, Robson
14 First Set of RFPs at the end of July 2013. Id. Ex. 4-6. With regard to

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After new counsel was retained, Robson provided an amended, verified response to the

15 changed his response to state that
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Id. Ex. 6 at 14. Robson's amended

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document production of about one hundred
17 response was accompanied by a small supplemental
that, with this production, Robson had
18 pages. With that production, Robson expressly represented
19 produced all documents responsive to the First Set. of RFPs. Id. Ex. 7.1

21 that

No explanation was provided for why Robson had falsely stated previously, under oath,

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.Nevertheless,

search had been conducted and that
22 Defendants accepted counsel's representation that a diligent
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1 Soon thereafter, Robson noticed his own deposition for August 24, 2016 and took the untenable
position that Defendants had to depose Robson on that day or they would forfeit their right to ever
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depose Robson. Steinsapir Decl. Ex. 8. Defendants successfully moved for a protective.order, and
Robson's deposition was rescheduled. Id. ¶ 10. When Robson's deposition was finally taken in
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December; Robson's counsel did not ask a single question—revealing that Robson's bizarre
attempt to notice his own deposition was simply a harassing stunt and, potentially worse, an effort
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to force Defendants to depose hiin without the benefit of thousands of responsive documents. Id.
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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

all documents had been produced. However, during the last week of September 2016, Robson's

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mother and siblings produced documents at their depositions, including many emails that Robson
had sent or received since May 8, 2012 relating to his allegations of abuse. Id. ¶ 11. None of these
documents had been produced by Robson. Defendants pointed out this discrepancy in an October

6,.2016, letter and asked Robson to either supplement his production or explain his destruction of

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relevant evidence. Id. Ex. 9. On October 11, Robson's counsel acknowledged that—contrary to -his
prior representations—Robson had not produced all responsive documents in his possession. Id.

Ex. 10. In fact, Robson had not even searched for many documents that were responsive to the

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First Set of RFPs. Id. Accordingly, Robson once again agreed to supplement his production. Id.
On October 17, 2016, Defendants received from Robson paper documents bearing Bates

11 numbers WR/MSF 000105 through WR/MSF 002698. Steinsapir Decl. ¶ 14. On.October 25,
12 2016, Defendants received paper documents bearing Bates numbers WR/MSF 002699 through

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This October 2016 series of productions—Robson's third attempt to comply with his

16 discovery obligations—failed to cure previously identified deficiencies. Rather, it brought to light

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14 numbers WR/MSF 003983 through WR/MSF 004094. Id. ¶ 16.
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17 additional issues with Robson's production. On November 2, 2016, Defendants sent a third meet
18 and confer letter, outlining these issues, including:(1) Robson's continuing failure to produce
19~ responsive documents;(2)Robson's improper redaction of non-privileged emails;(3)Robson's

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20 failure to produce electronic drafts and treatments of a book, with metadata intact, that Defendants
21 had just learned Robson was writing in late 2012 and early 2013 (prior to filing this action); and
22 (4)Robson's failure to produce attachments to emails. Steinsapir Decl. Ex. 11. In light of these
23 ongoing issues, and the many false statements made by Robson about his production, Defendants

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24 asked Robson to stipulate to a court order requiring him to produce all responsive documents by a
25 date certain; and to consent to a forensic examination of his accounts and devices. Id. at 6.
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Robson's counsel responded by email on November 4, 2016. Steinsapir Decl. Ex. 12.

27 I ~ Remarkably, Robson once again

claimed to have located additional responsive documents that he

28 had not yet produced, and he once again represented that with these additional documents his
NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

1 document production would be complete. Id. Nevertheless, Robson refused to stand by his claim

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2 that he had.produced all documents by stipulating to a court order requiring that he produce all
3 documents and to submit to a forensic examination of his accounts and devices.'Id.
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Defendants received Robson's latest production on November 10, 2016. That production

5 included numerous documents that are directly relevant to Robson's allegations of abuse and are

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6 clearly responsive to the First Set of RFPs. Steinsapir Decl. ¶ 19. Robson's latest production still
7 failed to cure the deficiencies in his production.
Robson Has Failed to Cure Previously Identified Deficiencies.

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B.

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Although Defendants have repeatedly pointed to the documents produced by Robson's

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10 family as evidence that Robson has failed to produce all responsive documents, many of Robson's

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11 email exchanges with his family_remain absent from his production. E.g., Steinsapir Decl. Exs. 13,

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13. and (2)If Robson does not have these emails anymore, what other documents has Robson deleted?
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17 statement by a former security guard at Neverland implying inappropriate conduct by Defendants,
18 and asks his mother what she thinks. Id. Eight minutes later, Ms. Robson responded:"Wow. None
19 of that is true..." Id. The remainder of Ms. Robson's response is (conveniently) obscured in the
20 version produced by her, and Ms. Robson now (conveniently) claims she no longer has access to

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16 "Security testimony." Steinsapir Decl. Ex. 13. In this exchange, Robson describes a purported

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In the November 2 letter, Defendants provided two examples of such emails. The first is a

15 February 15, 2016 email exchange between Robson and his mother, under the subject line

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12 16-17, 37-42. This simply leads to two obvious questions:(1) What else is Robson withholding?

21 this email, making its production by Robson himselfcritical. Id.; Steinsapir Decl. Exs. 14-15.
22

The second example is an October 2012 email exchange with the subject line "Questions

23 for Mom — 2.0." Id. Ex. 16. Robson initiated this exchange on October 4, 2012, by asking his

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24 mother numerous questions about, among other things, his visits to the United States when he was
25 a child, his interactions with Michael Jackson, and the allegations of abuse. Id. Documents
26 produced by Ms. Robson demonstrate that she and Robson exchanged numerous emails under this
27 subject-line. Id. Ex. 17. However, none of those emails have been produced by Robson. Id. ¶ 25.
28

According to the November 4 email from Robson's counsel, Robson was asked to search
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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

1 for these two particular emails and was able to locate them. Steinsapir Decl. Ex. 12. Defendants

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2 were told that these emails would be included in Robson's latest supplemental production at Bates
3 numbers WR/MSF004099-4100. Id. Unfortunately, that was not the case—and Robson testified at
4 his recent deposition that he had in fact not specifically searchedfor these emails. Id. Ex. 18 at
5 52:5-53:12. Although Robson's February 15 "Security testimony" email to his mother appears at

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6 WR/MSF004099, his mother's response remains entirely absent from his production. Id. ¶ 20. In
7 addition, the "Questions for Mom — 2.0" exchange is not included in Robson's latest production.
8 Contrary to counsel's representations, WR/MSF004100 has nothing to do with these emails, but is

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9 the first page of an unrelated document. Id. Ex. 20. Moreover, other emails produced by Robson's

10 family members—but not singled out in Defendants' November 2letter—remain absent from the

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11 production, demonstrating that Robson's production is still incomplete. Id. ¶¶ 46-51, Exs. 37-42.

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Robson redacted the entire content of numerous emails in his October and November.

14 .productions. Many of those redactions are clearly improper. For example, Robson has fully

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15. redacted over seventy emails between himself and family members on the basis of the attorney16 client privilege and the work product doctrine. Steinsapir Decl. Ex. 21. Indeed, more thanfifty are

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Robson Has Improperly Redacted Non-Privileged Communications.

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17 communications between Robson and his mother. Id.
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In addition, it appears that Robson has redacted almost every single email on which Helen

19 Yu—a transactional attorney who has represented Robson in the past and is a friend of his

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20 family—is copied, despite the presence of other non-lawyers who do not appear necessary to any
21 .legal consultation. Id. Exs. 18 at 194:5-195:5, 21-25. Along those lines, Robson has redacted
22 numerous emails between himself, Yu, and Alan Nevins. ld. Ex. 21. Nevins is a literary agent who
23 was helping Robson shop a book that Robson wrote about his alleged abuse to publishers prior to

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24 the initiation of this lawsuit. Id. Ex. 25-26. It appears from Robson's production that Robson. has
25 followed a bright line rule and redacted all emails on which Yu is copied, regardless of its content:
26 For example,
27
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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

. Id. Indeed, because Robson has redacted some emails in email chains

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with Nevins (those where Yu is copied)—but not others (where Yu is not copied)—often

Defendants are privy to the response to a query but not the query itself, or vice versa.
D.

Robson Refuses to Produce the Metadata for His Book.

As discussed above, emails produced by Robson on October 17 indicate that Robson wrote

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a book regarding the alleged abuse, which he actively shopped to publishers prior to filing this

7 .lawsuit. Steinsapir Decl. Exs. 25-26. Nevertheless, Robson failed to produce any drafts or

8 treatments of his book in the many years that this case, and the related probate proceedings, were

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9 pending. On October 20, 2016, Defendants wrote to ask if Robson would be producing drafts and

10 treatments of his book. Id. Ex. 28. Given its clear relevance to Robson's allegations, Defendants

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13 locate any drafts or treatments of his book. Id. Ex. 28."As to why it was not produced before," he
14 continued,"the answer is simple, because he has not been able to locate it despite it being
IS diligently searched for." Id. Four days later, however, Robson's story changed entirely. On
16 October 24, 2016, Robson's counsel wrote to say that Robson did, in fact, have a draft of his

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I7 book—a draft which states "for my attorneys" across the top of each page. Id. Ex. 29. As a result,

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18 Robson's counsel now claimed that Robson previously withheld this draft of his book not because

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19 he could not find it (as he stated onlyfour days earlier), but based on the attorney-client privilege.

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20 Id. Notably, even though Robson now claims that he had been withholding the draft as privileged,
21 Robson's counsel stated that Robson would "waive privilege" and produce the draft. Id.
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Given Robson's prior failure to produce this critical document(among others)—and

2 Remarkably, Robsonfailed to produce any documents about the book he was writing prior to
filing this lawsuit during the extensive discovery period in proceedings on Robson's probate
25
petition. Such documents were clearly responsive to the Estate's document requests in those
proceedings. In those proceedings, Robson agreed to produce all documents and communications
26
relating to "potential work on projects relating to Michael Jackson between June 25, 2009 and
May 1, 2013." Steinsapir Decl., Ex. 36 at 6-7 (Request Nos. 4-5). Yet Robson never produced
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anything relating to his book about Michael Jackson during the probate proceedings.
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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

1 Robson's shifting explanations for why he hadn't produced itDefendants' counsel immediately

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2 requested that all drafts of the book be produced in electronic form, with metadata intact.
3 Steinsapir Decl. Ex. 29. On October 25, 2016, Robson's counsel indicated that he had only
4 received a copy of the book in PDF format—which was "created recently"—and that a special
5 program was necessary to open the "original, publishing format." Id. Ex. 30. Defendants requested

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6 both the PDF version and the electronic file in its original format. Id. On October 27, Robson
7 produced a single draft of his book (Bates numbers WR/MSF 003983 through WR/MSF 004094).
8 Steinsapir Decl. ¶ 16. Robson has not produced any other drafts or treatments of his book and

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Robson Has Failed to Produce Attachments to Emails.

Finally, Robson has failed to produce documents in full and complete form, because he has

12 .produced almost all emails without attachments. Defendants' November 2 letter notified Robson

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9 refuses to produce the original electronic documents with metadata intact. Id. ¶ 16, Ex. 12.

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13 that numerous emails in his production were missing attachments. Steinsapir Decl. Ex. 11. To

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16 after Jackson passed—in one of Robson's many efforts to snake money from his association with

14 illustrate the issue, Defendants pointed,to three particularly egregious examples where the

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17 Jackson after his death—he describes one (missing) attachment as
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20 attachments to emails was a global problem with his production, stating that "[w]hen Mr. Robson

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On November 4, Robson's counsel acknowledged that Robson's failure to produce

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21 produced the emails in this case, he did so by exporting his emails to pd£ Doing such does not
22 print out the attachments." Steinsapir Decl. Ex. 12. Robson then agreed to produce the attachments
23 to two of the emails referenced in Defendants' letter. Id. In doing so, however, Robson failed to

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24 reproduce the cover emails together with the attachments, such that the cover emails and
25 corresponding attachments are in completely different parts of the production. Id. ¶ 40. Worse,
26 despite recognizing a global issue with his production, Robson failed to produce attachments for
27 any other emails. Id. Ex. 12. Instead, Robson improperly attempted to shift the burden to
28 Defendants to try to identify every email in his production that is missing attachments. Id.
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NOTICE OF MOTION AND MOTIOI*1 TO COMPEL ROBSON'S COMPLIANCE

1 II III.

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ARGUMENT
"If a party filing a response to a demand for inspection, copying, testing, or sampling ...

3 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that
4 party's statement of compliance, the demanding party inay move for an order compelling
5 compliance." Civ. Proc. Code § 2031.320(a). "Except as provided in subdivision (d), the court

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6 shall impose a monetary sanction under Chapter 7 ... against any party, person, or attorney who
7 unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds
8 that the one subject to the sanction acted with substantial justification or that other circumstances
9 make the imposition of the sanction unjust." Id. § 2031.320(b)(emphasis added).

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Robson Should Be Ordered to Produce All Documents That He Agreed to

Produce and Detail His Efforts to Search for and Produce Documents.

On numerous occasions, Robson has led Defendants to believe that his document

13 production was complete. Steinsapir Decl. Exs. 1, 7, 10, 12. Every time, Defendants have found
14 evidence to the contrary and challenged Robson's representations. And every time Robson has
15 suddenly come.forward with additional responsive documents that were not previously produced.
16 Steinsapir Decl. Exs. 7, 10, 12. Nevertheless, and despite months of meet and confer efforts,

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17 incontrovertible evidence demonstrates that Robson's production remains incomplete.
18

Specifically, Robson's family members produced numerous emails that were either sent or

19 received by Robson. E.g., Steinsapir Decl. Exs. 13, 16-17, 37-42. These emai.ls are indisputably
responsive to Defendants' document requests, but to this day, Robson has failed to produce them.

21.

In light of this evidence, there are only three possibilities:(1)Robson has failed to. perform

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22 a reasonably diligent search for documents responsive to Defendants' requests;(2)Robson is
23 willfully withholding responsive documents; or(3) Robson has destroyed relevant evidence.

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24 Under any of these scenarios, an order requiring Robson to produce all responsive documents in
25 his possession, custody, and control by a date certain, and to explain his potential spoliation of
26 responsive documents, is necessary and appropriate.
27

Moreover, since the record demonstrates that Robson is either withholding documents or

28 ~ I has failed to conduct a diligent search to find them, Defendants request that Robson be compelled

NOTICE OF MOTION AND MOTION TO
9 COMPEL ROBSON'S COMPLIANCE

1 to provide sufficient details regarding his efforts to locate documents to ensure that Robson

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2 satisfies his discovery obligations going forward. Where "[t]he record leaves good reason to
3 believe that[a party] is either withholding documents, or has failed to conduct a diligent search to
4 find them,... [that party] should provide, pursuant to Code of Civil Procedure § 2031.230, a
5 declaration or declarations detailing the efforts expended to locate such documents." Doppes v.

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6 Bentley Motors, Inc., 174 Ca1.App.4th 967, 978 (2009).

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In his supplemental productions, Robson has entirely redacted communications that are

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13 work product doctrine. Steinsapir Decl. Ex. 21. More than fifty of these emails are between
14 C Robson and his mother alone—perhaps the two most important (living) witnesses in this case. Id.
15

Robson's family members are not lawyers."If the client discloses attorney-client

16 communications to unnecessary third parties, he manifests an intent to waive confidentiality. The
17 key concept here is need to know." Ins. Co. ofN. Am. v. Superior Court, 108 Ca1.App.3d 758, 765

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Robson has redacted more than seventy emails between himself and his family—

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Robson Has Improperly Redacted Emails with His Family.

12 improperly hiding these communications behind the cloak o#'the attorney-client privilege and the

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Robson Must Remove Improper Redactions.

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18 (1980). See also D.I. Chadbourne, Inc. v. Superior Court, 60 Ca1,2d 723, 735 (1964); Total Recall
19 Techs. v. Luckey, 2016 WL 1298863, at *4(N.D. Cal. 2016)(friend and business advisor had no

21

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20 stake- in litigation and lacked any "need to know" contents of privileged communication).
Nevertheless, Robson's counsel has taken the baseless position that his correspondence

22 with family members is akin to attorney-directed witness statements and thus subject to attorney
23 work product protection. See Steinsapir Dec. Ex. 12. That is absurd. Robson is the plaintiff in this

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24 action; he is not a disinterested investigator hired by an attorney. Moreover, the redacted
25 documents are not witness statements, but email exchanges between Robson and his family
26 members that span more than two years (from May 2014 through June 2016). Disclosure of these
27 emails simply does not further the purpose of attorney work product protection, to protect an

28 attorneys' impressions, conclusions, or opinions. -Cal. Civ. Proc. Code § 2018.030(a).

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCB

1 ~~ Accordingly; Robson has not come close to meeting his burden of demonstrating that the redacted

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2 correspondence with his family are entitled to any level of work product protection. D.I

`3 Chadbourne, 60 Cal2d at 729 (parry claiming privilege has burden to show that it applies).
4

In addition, even- if Robson's emails with his family qualified as attorney-directed witness

5 statements—and they do not—the emails would only be entitled to qualified work product

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6 protection. Coito v. Sup. Ct, 54 Ca1.4th 480, 499(1999). Accordingly, the Court should still order
7 Robson to produce his correspondence with his family members because denial of disclosure

8 would unfairly prejudice Defendants in preparing their defense and result in injustice. Cal Civ.

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Given the evidence that

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17 Robson has relied on his family, particularly his mother, to refresh his recollection of relevant
18 "factual" details, Robson's correspondence with his family members must not be withheld. Cf.
19 Evid. Code § 771 (writings used to refresh witness's recollection must generally be produced).

21

2.

Robson Has Improperly Redacted Emails Copying Helen Yu.

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20

In addition to redacting correspondence with his family, Robson has improperly redacted

22 almost every single email on which Helen Yu is copied—regardless of the content of the email or
23 who else is copied. While Robson may have a valid privilege claim with respect to some

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24. communications with Yu, her mere presence does not automatically cloak all communications in
25 privilege. Yet that is precisely Robson's position. For example, at Robson's deposition, Robson
'26 was instructed not fo answer questions about statements made by book publishersfor the sole
27 ~ ~ reason that Yu was present when statements were made. Steinsapir Decl. Ex. 18 at 27:1-28:13.

28

To the extent Ms. Yu is copied on the email as a family friend or business advisor—rather

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

1 than as a legal advisorthe emails are not privileged. The California Supreme Court has expressly

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2 .rejected the misguided "view" by many "that the attorney-client privilege applies whenever issues
3 touching upon legal matters are discussed with an attorney. That has never been the law." People
4 v. Gionis, 9 Ca1.4th 1196, 1210 (1995)."It is settled that the attorney-client privilege is
5 inapplicable where the attorney merely acts as a negotiator for the client, gives business advice or

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6 otherwise acts as a business agent." Chicago Title Ins. Co. v. Sup. Ct., 174 Ca1.App.3d 1142, 1151
7 (1985). Robson's counsel has admitted that that was the case here. Steinsapir Decl. Ex. 34.
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C.

:Robson Should Produce All Missing Attachments to :mails.

Robson admits that he has failed to produce attachments to emails. Robson's counsel

13 explained that "[w]hen Mr. Robson produced the emails in this case, he did so by exporting his
14 einails to pdf. Doing such does not print out the attachments." Steinsapir Decl. Ex. 12 at 3
15 (emphasis added). Nevertheless, Robson has failed to remedy this issue by reproducing his emails
16 in complete form with attachments intact. Rather, Robson has attempted to shift the burden to

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9 necessary to the legal consultation. Steinsapir Decl. Ex. 22-25. The presence of unnecessary third

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Moreover, as discussed, many of the einails include third-parties who are not reasonably

17 Defendants to identify the hundreds, if not thousands, of documents in his production that are
18 missing attachments. Id. That is not the law. Having recognized a global problem with _his
19 production, it is Robson's burden—not Defendants'—to remedy that global problem. Indeed, only

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20 Robson has sufficient information to do so. While it is possible from the paper production to
21 determine that-some emails are missing attachments—based on a "paperclip" symbol, a document
22 icon, or a reference to an attachment in the text of an email (e.g., id. Exs. 19, 23, 31-32)—it is
23 impossible to identify every missing attachment without access to the original email files.

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24

Moreover, when Robson ultimately did produce two of the missing attachments, he failed

25 to reproduce theirs with their cover emails. Id. ¶ 40. Producing attachments separatedfrom their
26 cover emails does not comply with the directive that electronically stored information be produced
27

"in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable."

28 Civ. Proc. Code § 2031.280(d)(1). Cf. Kayne v. Grande Holdings, Ltd., 198 Cal.App.4th 1470,
NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

1472(2011)(affirming $74,809 award for documents produced in disordered state).

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Robson Should Reproduce Electronically Stored Documents with Metadata.

Section 2031.280 requires that a party responding to document requests produce

electronically stored information "in the form or forms in which it is ordinarily maintained or in a

form that is reasonably usable." Civ. Proc. Code § 2031.280(d)(1); see also id.§ 2031.280.(a)

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(requiring documents be produced "as they are kept in the usual course of business"). Robs.on has
failed to do so. Rather, Robson has produced thousands of pages of emails and electronic files as
paper printouts. Steinsapir Decl. ¶¶ 14-15. More importantly, Robson has produced the sole draft

10 ¶ 16. Neither the paper printouts, nor the PDF book draft, qualify as a "reasonably usable'' form:.
11

As outlined above, as soon as Defendants learned that Robson had authored a book, they

12 requested, as part of the meet and confer process, that all drafts and treatments be produced in

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16 when the document was created and modified, is absolutely crucial. Without it, Defendants will be

14 key document years ago in the probate proceedings and now in these proceedings—and the flatly

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17 unable to tell if Robson altered the draft during the course of this lawsuit. See Kunkel Decl. ¶ 10.
18

On October 25, Robson's counsel responded to Defendants' request for metadata,

19 representing that the book "was written using book publishing software," and he had only received

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contradictory representations about why it had not been produced—access to metadata reflecting

20 a copy as a recently created PDF. Steinsapir Decl. Ex. 30. "[A]s to the original, publishing

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21 format," he continued,"I have to find a way to get it. I will probably have to have the program
22 downloaded onto one of our computers. Please advise." Id. Defendants' counsel promptly
23 requested the PDF in addition to the "original electronic file in its original format," stating,"We

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24 can find out the program we need to open it." Id. Nevertheless, Robson only produced a PDF and
25 now refuses to produce the originalfile or any metadata. Id. Ex. 12. Robson has offered no
26 explanation for his sudden unwillingness to produce the book in its original format with metadata.
27

Because the metadata contains critical information about the document that cannot be

28 deduced from a recently created PDF copy, Robson's book has not been produced in a reasonably

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

1 usable form. See Ellis v. Toshiba Am. Info. Sys., Inc., 218 Cal.App.4th 853, 862 n.6(2013)

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2 (persuasive federal authority holds that "production of electronically stored information in PDF
3 format may not be sufficient if the requesting party can show that the format "`[is] not "reasonably
4 usable" and that the native format, with accompanying metadata, meet the criteria of"reasonably
5 usable" whereas the PDF format does] not."'), quoting City ofColton v. Am. Promotional Events,

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6 Inc., 277 F.R.D. 578, 583(C.D. Cal. 2011); see also Kunkel Decl. ¶ 10. Similarly, Robson's
7 emails and other electronic files have not been produced in a reasonably usable form. Indeed, the
8 bankers' boxes of paper printouts:(1) are not electronically searchable;(2) are missing their

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9 attachments;(3) are not separated into individual documents; and (4)lack the metadata required to

10 identify basic information, such as the documents' format, creation date, modification date, etc.
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Robson Should Submit to a Forensic Examination of His Accounts.

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16 failed to produce. In addition, Robson has offered no explanation for his belated production of

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Y7 additional responsive documents on at least three separate occasions after he had represented that
18 his production was complete. As many of the most recently produced documents are highly
19 relevant to this action, the fact that they were not produced previously is extremely troubling.
20

Defendants should not be forced to continue playing "whack-a-mole" in response to

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21 Robson's document productions. Under these circumstances, athird-party forensic examination of
22 Robson's accounts, computers, and devices, is the only way to ensure that Defendants will obtain
23 the discovery. to which they are entitled in defending themselves against Robson's claims. Ellis,

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24 218 Ca1.App.4th at 881 (discovery abuses justified order authorizing inspection of plaintiff's hard
25 drive); Doppes, 174 Cal.App.4th at 979 (trial court required defendant to provide plaintiff access
26 to its email files via computer terminal based on prior failure to produce responsive documents);
27 R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Ca1.App.4th 486, 498(1999)(request for access to
28 computer hard drive was not a fishing expedition and defendants were entitled to discovery of the

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

1 computers on which plaintiff prepared contracts at issue in the case).

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2

Defendants have retained Michael Kunkel of Setec Security Technologies, Inc., to perform

3 such an examination. He explains the process in his accompanying declaration, and explains how
4 Robson's privacy and privilege concerns can be addressed. Kunkel Decl. ¶¶ 4-11. Robson has
5 .provided interrogatory responses listing his computers and devices. Steinsapir Decl., Ex. 35.
Robson Should Be Sanctioned.

F.

7

Finally; the Court should impose sanctions upon Robson for his failure to comply with his

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8 discovery obligations. The Code of Civil Procedure states that the Court "shall impose" sanctions

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9 against the losing party of a motion to compel, unless the party has "substantial justification," or

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10 the imposition of the sanction would be "unjust." Civ. Proc. Code § 2031.320(b); see Id. §§
11 2023.010(d),(h). "Whenever one party's improper actions—even if not `willful'=in seeking or
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12 resisting discovery necessitate the court's intervention in a dispute, the losing party presumptively

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13 should pay a sanction to the prevailing party." Clement v. Alegre, 177 Ca1.App.4th 1277, 1286
14 (2009). Monetary sanctions are appropriate to cover "reasonable expenses, including attorney's
15 fees" incurred by parties in obtaining the discovery to which they are entitled. Cal. Civ. Proc.
16 Code § 2023.030(a). Reasonable expenses include time spent researching and preparing the

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18 218 Cal.App.4th at 880 (affirming $165,000 award for discovery abuses); Kayne, 198 Ca1.App.4th

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19 at 1472(affirming $74,809 award for documents produced in a disordered state).

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17 motion and related court time. Ghanooni v. Super Shuttle, 20 Ca1.App.4th 256, 262(1993); Ellis,

Sanctions are warranted here. Defendants seek information and documents that are directly

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21 relevant to. Robson's claims. These are documents that Robson agreed to produce, but nevertheless
22 failed to produce, despite being given every opportunity to cure the deficiencies in his production.
23 There is no justification,.let alone a substantial one, for Robson's patent failure to produce email

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24 exchanges with his family or for his redactions of clearly non-privileged correspondence. Nor has
25 Robson offered any cognizable justification for his refusal to produce documents in a complete
26 and reasonably usable form with attachments and metadata intact. Defendants are therefore
27 entitled to compensation for the time spent in bringing this motion, and the Court should issue
28 monetary sanctions against Robson in the amount of $17,100. Steinsapir Decl. ¶ 52.
15
NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

1 DATED: December 27, 2016

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

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BY:
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Attorney for MJJ Productions, Inc. and MJJ Ventures, Inc.

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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE