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INTRODUCTION

TABLE OF CONTENTS

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FACTUAL BACKGROLTND

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A. Robson Repeatedly Misrepresented That He Had Completed His

Production.

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B. Robson Has Failed to Cure Previously Identified Deficiencies

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C. Robson Has Improperly Redacted Non-Privileged

Communications

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E. Robson Has Failed to Produce Attachments to Emails

Robson Refuses to Produce the Metadata for His Book

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ARGUMENT

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A.

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

Produce and Detail His Efforts to Searck► for and Produce Documents.

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B. Robson Must Remove Improper Redactions.

1. Robson Has Improperly Redacted Emails with His

2. Robson Has Improperly Redacted Emails Copying Helen

C. Robson Should Produce All Missing Attachments to Emails

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E. Robson Should Submit to a Forensic Examination of His

Robson Should Reproduce Electronically Stored Documents with

Accounts

F. Robson Should Be Sanctioned.

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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

11 I.

INTRODUCTION

This motion seeks an order compelling Plaintiff Wade Robson to comply

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3 -basic discovery obligations in this matter. This Court's intervention in the

with his most

discovery process is

4 necessary because,over the lastseveral months,Defendants have learned

that,among otherthings,

5 Robson:(1)has made false statements under oath regarding the

existence of documents and his.

6 search for documents;(2)has affirmatively withheld documents

thatshould have been produced

7 years ago;and(3)has redacted documents based on objectively

frivolous assertions of privilege.

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W hen Robson was asked to produce all written

communications relating to his allegations

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of abuse in this case,Robson stated under oath that only single

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responsive document existed.

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ocuments obtained by third parties,however,showed thatthese sworn

ere utterly false. Robson was then forced to change his response entirely, finally admitting that

statements by Robson

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m any communications existed and agreeing to produce theirs. Eventually, Robson would produce

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

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D uring this process,on three separate occasions,Robson stated that he had completed his

production and had produced allresponsive communications.Each time thatrepresentation was

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m ade,however,Defendantsfound clear evidence thatRobson

had notproduced allthe

17' communications. Robson was then forced to

"supplement" his productions three separate times,

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and each tune he falsely represented that his latest production was"now"

complete. To this day,

R obson has still failed to produce numerous communications with third parties and has never

explained why. Moreover,Robson has also redacted the entire content

plausible reason.For example,he completely redacted over fifty emails between himselfand his

of numerous emails for no

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m other alone,based on the absurd claim that his discussions

with his(non-lawyer)mother about

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the supposed "facts" underlying his allegations are somehow

his attorneys'"work product."

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

allegations in this case, which he

unsuccessfully shopped to publishers prior to filing

suit. Yet,

R obson inexplicablyfailed to produce a single draft of his

book in either this case or in the related

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,

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 m issing or redacted, and Robson refuses to produce original

electronic files with metadata. He also

6 claims—preposterously—that his communications

7 D espite months ofback-and-forth between counsel and many opportunities

with publishers aboutthe book are privileged.

for Robson to

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8 fix these issues,Robson's production remains woefully

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

deficient.In order to ensure that he does

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11 efforts to locate responsive documents, and (3) submit to a third-party forensic examination of his

and complete his production of documents by a date certain,(2)submit declaration detailing his

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12 email accounts, computers, and other electronic devices. In

addition, Robson should be ordered to

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forensic expert.

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14 II.

FACTUAL BACKGROUND

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16 O n March 28,2016, MJJ Productions,Inc.,served Robson with its

A.

Robson Repeatedly Misrepresented That He Had Completed His Production.

first set ofrequests for

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

Y OU were abused by Michael Jackson;"

TO YOUR allegations that

Request No. 24 sought"All DOCUMENTS RELATING TO

YOUR visits to the

U nited States prior to YOUR 18`h birthday;" and

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Request No. 32 sought"All

COMMUNICATIONS and RECORDINGS on or after

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25 he sexually abused YOU."

ay 8,2012, between YOU and any

ichael Jackson sexually abused children, including but not

PERSON RELATING TO allegations that

limited to allegations that

26 Id. Ex. 1 at 5-7.

27 O n 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

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~~ Ex. 2. In his verified response to Request No. 32, however, Robson

represented as follows:

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

R obson failed to produce any communications relating to his allegations of

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abuse apartfrom the previously-produced September 7 email(an email that was discussed

C ourt at page 4 of its May 26,2015 order granting the Estate's motion for

by the

summary judgment).

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

regarding these responses,including the response to Request No. 32.Id.

D efendants expressed disbelief at Robson's assertion that

Ex. 3. In their letter,

. Id. at 2-3.

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

FirstSet of RFPs at the end of July 2013.Id. Ex. 4-6. With regard to Request No.

changed his response to state that

32, Robson

Id. Ex. 6 at 14. Robson's amended

response was accompanied by a small supplemental document production of

pages.With that production,Robson expressly represented that,with this production,Robson had

about one hundred

produced all documents responsive to the First Set.of RFPs. Id. Ex. 7.1

No explanation was provided for why Robson had falsely stated

previously,under oath,

that

Defendants accepted counsel's representation thata diligentsearch had been conducted and that

.Nevertheless,

1 Soon thereafter,Robson noticed hisown deposition for August 24,2016 and

took the untenable

position that Defendants had to depose Robson on that day or they would

depose Robson. Steinsapir Decl.Ex. 8. Defendants successfully moved for a

R obson's deposition was rescheduled.Id. ¶ 10. When Robson's

December;Robson's counsel did not ask a single question—revealing thatRobson's bizarre

attempt to notice his own deposition was simply a harassing

to force Defendants to depose hiin without the benefit of thousands of responsive documents.Id.

forfeit their right to ever

protective.order,and

deposition was finally taken in

stunt and, potentially worse, an effort

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

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all documents had been produced. However,during the last week of September

m other and siblings produced documents at their depositions,including many emails that Robson

2016,Robson's

had sent or received since May 8,2012 relating to his allegations of

documents had been produced by Robson. Defendants pointed out this

abuse.Id. ¶ 11. None ofthese

discrepancy in an October

6,.2016, letter and asked Robson to either supplement his

relevant evidence.Id. Ex. 9. On October 11, Robson's counsel acknowledged that—contrary to -his

production or explain his destruction of

prior representations—Robson had not produced all responsive

Ex. 10.In fact,Robson had not even searched for many documents

First Set of RFPs.Id. Accordingly,Robson once again agreed to

documents in his possession.Id.

that were responsive to the

supplement his production.Id.

10 On October 17,2016,Defendants receivedfrom Robson

11 numbers WR/MSF 000105 through WR/MSF 002698.Steinsapir Decl.¶ 14.On.October 25,

paper documents bearing Bates

12 2016,Defendants received paper documents bearing Bates

13 W R/MSF 003982.Id.¶ 15.On October 27,2016,Defendants received a singlePDF

14 numbers WR/MSF 003983 through WR/MSF 004094.Id.¶ 16.

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

numbers WR/MSF 002699 through

bearing Bates

16 discovery obligations—failed to cure previously identified deficiencies.

Rather, it brought to light

17 additional issues with Robson's production. On November

18 and confer letter, outlining these issues, including:(1)Robson's continuing failure to produce

2,2016, Defendants sent a third meet

19~ responsive documents;(2)Robson's improper redaction ofnon-privileged

20 failure to produce electronic drafts and treatments of a book, with

21 had just learned Robson was writing in late 2012 and early 2013

22 (4)Robson's failure to produce attachments to emails. Steinsapir

emails;(3)Robson's

metadata intact,that Defendants

(prior to filing this action); and

Decl. Ex. 11. In light ofthese

23 ongoing issues,and the many false statements made by

24 asked Robson to stipulate to a court order requiring him to

25 date certain; and to consent to a forensic examination of his accounts and devices.Id. at 6.

Robson about his production,Defendants

produce all responsive documents by a

26 R obson's counsel responded by email on November

4,2016. Steinsapir Decl. Ex. 12.

27 I~Remarkably, Robson once again claimed to have located

28 had not yet produced, and he once again represented that with these additional

additional responsive documents that he

documents his

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

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

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.

4 Defendants received Robson's latestproduction on November 10,2016. That

production

5 included numerous documents that are directly relevant to Robson's

allegations of abuse and are

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.

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

B. Robson Has Failed to Cure Previously Identified

Deficiencies.

10 family as evidence that Robson has failed to produce all responsive

documents, many of Robson's

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email exchanges with his family_remain absentfrom his production.E.g.,

Steinsapir Decl.Exs. 13,

0 ~ co 12 16-17, 37-42. This simply leads to two obvious questions:(1)

What else is Robson withholding?

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documents has Robson deleted?

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14 In the November 2 letter, Defendants provided two examples of such emails.

The first is a

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

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

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17 statement by a former security guard at Neverland implying

18 and asks his mother what she thinks.Id. Eight minutes later,Ms.Robson responded:"Wow.None

inappropriate conduct by Defendants,

19 of that is true

20 version produced by her, and Ms. Robson now (conveniently)claims she no longer has access to

"

Id. The remainder of Ms. Robson's response is(conveniently) obscured in the

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

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 ofthose 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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for these two particular emails and was able to locate them.

Steinsapir Decl. Ex. 12. Defendants

w ere told that these emails would be included in Robson's

numbers WR/MSF004099-4100. Id. Unfortunately,that was not the case—and Robson

latest supplemental production at Bates

testified at

his recent deposition that he had in fact not specifically searchedfor

these emails. Id. Ex. 18 at

52:5-53:12. Although Robson's February 15

"Security testimony" email to his mother appears at

W R/MSF004099, his mother's response remains entirely

absent from his production.Id.¶ 20. In

addition,the "Questions for Mom — 2.0" exchange is not included

in Robson's latest production.

C ontrary to counsel's representations, WR/MSF004100 has nothing to do

with these emails, but is

the firstpage of an unrelated document.Id. Ex.20. Moreover,other

emails produced by Robson's

family members—but not singled out in Defendants' November

2letter—remain absent from the

production, demonstrating that Robson's production is still

incomplete. Id. ¶¶ 46-51, Exs. 37-42.

C. Robson Has Improperly Redacted Non-Privileged Communications.

R obson redacted the entire content of numerous emails in his

October and November.

.productions.Many ofthose redactions are clearly

improper.For example,Robson has fully

redacted over seventy emails between himselfand

family members on the basis ofthe attorney-

clientprivilege and the work product

doctrine.Steinsapir Decl.Ex.21.Indeed,more thanfifty are

communications between Robson and his mother.Id.

In addition, it appears that Robson has redacted

almost every single email on which Helen

Y u—a transactional attorney who has represented

family—is copied, despite the presence of other non-lawyers who do not appear

Robson in the past and is a friend of his

necessary to any

.legal consultation.Id. Exs. 18 at 194:5-195:5, 21-25.

Along those lines, Robson has redacted

numerous emails between himself, Yu, and Alan Nevins. ld. Ex. 21.

Nevins is a literary agent who

w as helping Robson shop a book that Robson wrote about

the initiation of this lawsuit. Id. Ex. 25-26. It appears from

his alleged abuse to publishers prior to

Robson's production that Robson .has

followed a bright line rule and redacted

all emails on which Yu is copied,

regardless of its content:

For example,

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

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

email chains

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

not copied)—often

efendants 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.

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As discussed above,emails produced by Robson on

October 17 indicate thatRobson wrote

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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pending.On October 20,2016, Defendants wrote to ask ifRobson

would be producing drafts and

treatments of his book. Id. Ex. 28. Given its clear

relevance to Robson's allegations, Defendants

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12 R obson's counsel responded that afternoon, claiming that Robson had been unable to

i~ also expressed confusion as to why it had not been previously produced. Id. 2

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locate any drafts or treatments of his book. Id. Ex. 28."As to why it was not produced before," he

continued,"the answer is simple, because he has not been able to locate it despite it being

diligently searched for."Id. Four days later,however,Robson'sstory changed entirely.On

O ctober 24, 2016, Robson's counsel wrote to say that Robson did, in fact, have a draft of his

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booka draft which states"for my attorneys" across the top ofeach page.Id. Ex.29. As a result,

18 Robson's counsel now claimed that Robson previously

withheld this draft ofhis book not because

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he could not find it(as he stated onlyfour days

earlier), but based on the attorney-client privilege.

20 Id. Notably, even though Robson now claims that

he had been withholding the draft as privileged,

21 Robson'scounsel stated thatRobson would "waive privilege"and

produce the draft.Id.

22 Given Robson's prior failure to produce this critical

document(among others)—and

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24 2 Remarkably, Robsonfailed to produce any documents

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about the book he was writing prior to

filing this lawsuit during the extensive discovery

period in proceedings on Robson's probate

in those

petition. Such documents were clearly

proceedings. In those proceedings,

relating to "potential work on projects relating to

M ay 1, 2013." Steinsapir Decl., Ex. 36 at 6-7(Request Nos. 4-5).

anything relating to his book about Michael

responsive to the Estate's document requests

Robson agreed to produce all documents and communications

Michael Jackson between June 25,2009 and

Yet Robson never produced

Jackson during the probate proceedings.

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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

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

counsel immediately

requested that all drafts ofthe book be produced in electronic

form, with metadata intact.

Steinsapir Decl.Ex.29. On October 25,2016,Robson's counsel indicated that he had only

received a copy of the book in PDF format—which was "created

recently"—and that a special

program was necessary to open the "original, publishing format." Id. Ex. 30. Defendants

requested

both the PDF version and the electronic file in its original format.Id. On October 27, Robson

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produced a single draft ofhis book(Bates numbers WR/MSF 003983

through WR/MSF 004094).

Steinsapir Decl. ¶ 16. Robson has not produced any other drafts

or treatments of his book and

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

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E. Robson Has Failed to Produce Attachments to Emails.

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

form, because he has

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

Robson

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Steinsapir Decl. Ex. 11. To

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examples where the

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15 attachments are responsive documents in their own right.Id. For example, in an email sent shortly

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after Jackson passed—in one of Robson's many efforts to

snake money from his association with

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

20 attachments to emails was a global problem with hisproduction,

stating that"[w]hen Mr. Robson

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

24 reproduce the cover emails together with the attachments,such thatthe 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. ARGUMENT

 

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"If a party filing a response to a demand for inspection,

copying, testing, or sampling

thereafter fails to permit the inspection, copying,testing, or sampling in accordance with

party's statement ofcompliance,the demanding party inay move for an

order compelling

that

compliance." Civ. Proc. Code § 2031.320(a)."Except as provided in subdivision (d), the court

shall impose a monetary sanction under Chapter 7

against any party, person, or attorney who

u nsuccessfully makes or opposes motion to compel compliance

a

with a demand, unless it finds

that the one subject to the sanction acted with substantialjustification or that other circumstances

m ake the imposition ofthe sanction unjust."Id. § 2031.320(b)(emphasis added).

A. Robson Should Be Ordered to Produce All

Documents That He Agreed to

P roduce and Detail His Efforts to Search for and Produce

Documents.

O n numerous occasions, Robson has led Defendants

to believe that his document

production was complete. Steinsapir Decl. Exs. 1,7, 10, 12. Every time,

Defendants have found

evidence to the contrary and challenged Robson's representations. And every time Robson has

suddenly come.forward with additional responsive documents that were not previously

produced.

Steinsapir Decl. Exs. 7, 10, 12. Nevertheless, and despite months of meet and

confer efforts,

incontrovertible evidence demonstrates thatRobson's production remains

incomplete.

Specifically, Robson's family members produced numerous emails

that were either sent or

received by Robson.E.g., Steinsapir Decl.Exs. 13, 16-17,37-42.

These emai.ls are indisputably

20 responsive to Defendants' document requests, but to this day, Robson has failed to

produce them.

2 1.

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

a reasonably diligent search for documents responsive to

Defendants' requests;(2) Robson is

w illfully withholding responsive documents; or(3)Robson has

destroyed relevant evidence.

U nder any of these scenarios, an order requiring Robson to

produce all responsive documents in

his possession, custody, and control by a date certain, and to

explain his potential spoliation of

26

27

28

responsive documents, is necessary and appropriate.

M oreover, since the record demonstrates that Robson is

either withholding documents or

~I has failed to conduct a diligent search to find

them, Defendants request that Robson be compelled

NOTICE OF MOTION

AND MOTION TO COMPEL ROBSON'S COMPLIANCE

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1 to provide sufficient details regarding his efforts to locate

documents to ensure that Robson

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.

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

7

8

9

10

'

B. Robson Must Remove Improper Redactions.

In his supplemental productions,Robson has entirely redacted

communications that are

clearly not privileged. Robson should be ordered to

reproduce these documents without redaction.

1. Robson Has Improperly Redacted Emails with His Family.

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19

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24

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Robson has redacted more than seventy emails

between himselfand hisfamily—

improperly hiding these communications behind the cloak

o#'the attorney-clientprivilege and the

w ork product doctrine. Steinsapir Decl.Ex. 21. More than

fifty ofthese emails are between

CRobson and his mother alone—perhaps the two most important(living)

witnesses in this case. Id.

Robson'sfamily members are notlawyers."Ifthe client discloses attorney-client

communications to unnecessary third parties, he manifests an intent to

waive confidentiality. The

key concept here is need to know." Ins. Co. ofN. Am. v. Superior

Court, 108 Ca1.App.3d 758, 765

( 1980). See also D.I. Chadbourne, Inc. v. Superior Court, 60 Ca1,2d 723,

735 (1964); Total Recall

Techs. v. Luckey, 2016 WL 1298863, at *4 (N.D. Cal. 2016)(friend and business advisor had no

stake-in litigation and lacked any "need to know" contents of

privileged communication).

Nevertheless,Robson's counsel has taken the

baseless positionthat his correspondence

w ith family members is akin to attorney-directed witness statements and thus

subject to attorney

w ork product protection. See Steinsapir Dec. Ex. 12. That is absurd.

Robson is the plaintiff in this

action; he is not a disinterested investigator hired by an attorney.

Moreover, the redacted

documents are not witness statements,butemail exchanges between

Robson and his family

26

m embers that span more than two years(from May 2014 through

June 2016).Disclosure ofthese

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

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Accordingly; Robson has not come close to meeting his burden of

demonstrating that the redacted

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

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C hadbourne, 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

5 statements—and they do not—the emails would only be entitled

6 protection. Coito v. Sup. Ct, 54 Ca1.4th 480, 499 (1999). Accordingly, the Court should still

attorney-directed witness

order

to qualified work product

7 R obson to produce his correspondence with his family members because

8 w ould unfairly prejudice Defendants in preparing their defense and result

denial of disclosure

in injustice. Cal Civ.

9 Proc. Code § 2018.030(b). The evidence shows that Robson's own,independent

memory ofhis

10 childhood is limited, and he has been relying heavily on his mother for factual

11 his interactions with Jackson. Steinsapir Decl. Exs. 13, 16-17, 37-42. For example, on

information about

August 27,

12 2012,Robson wrote to his mother:

13

14

15

16

17

18 "factual" details,Robson's correspondence with his family members

19 E vid. Code § 771 (writings used to refresh witness's recollection must generally be

Given the evidence that

R obson has relied on his family, particularly his mother,to refresh

his recollection of relevant

must not be withheld. Cf.

produced).

20

2. Robson Has Improperly Redacted Emails Copying Helen Yu.

21 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

w ho else is copied. While Robson may have a valid privilege claim with respect to

some

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

w as 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 T o 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

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2

than as a legal advisorthe emails are not privileged. The

California Supreme Court has expressly

.rejected the misguided "view" by many "thatthe attorney-client

privilege applies whenever issues

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touching upon legal matters are discussed with an attorney.That has never been the law."

v. Gionis, 9 Ca1.4th 1196, 1210 (1995)."It is settled that the attorney-client privilege is

People

inapplicable where the attorney merely acts

otherwise acts as a business agent." Chicago Title Ins. Co. v. Sup.

(1985).Robson's counsel has admitted thatthatwas the case here.Steinsapir

as a negotiator for the client, gives business

advice or

Ct., 174 Ca1.App.3d 1142, 1151

Decl.Ex.34.

M oreover, as discussed, many ofthe einails

include third-parties who are not reasonably

necessary to the legal consultation. Steinsapir Decl. Ex. 22-25. The

presence of unnecessary third

parties defeats any claim ofprivilege.Evid. Code § 952.

C. :Robson Should Produce All Missing Attachments to :mails.

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

explained that"[w]hen Mr. Robson produced the

einails to pdf. Doing such does notprint out the attachments."

(emphasis added). Nevertheless, Robson has failed to remedy

emails in this case, he did so by

exporting his

Steinsapir Decl. Ex. 12 at 3

this issue by reproducing his emails

in complete form with attachments intact. Rather,Robson has attempted to

D efendants to identify the hundreds, ifnot thousands, of documents in

shiftthe burden to

his production that are

m issing attachments. Id. That is not the law. Having

recognized a global problem with _his

production, it is Robson's burden—not

R obson has sufficient information to do so. While it is

Defendants'—to remedy that global

problem. Indeed, only

possible from the paper production to

21

22

23

24

determine that-some emails are missing

icon, or a reference to an attachment in the text of an email (e.g., id.

attachments—based on a "paperclip"

symbol,a document

Exs. 19, 23, 31-32)—it is

impossible to identify every missing

attachment without access to the original email files.

M oreover,when Robson ultimately did produce two ofthe missing

attachments, he failed

25

to reproduce theirswith theircover emails.Id.¶ 40.Producing attachmentsseparatedfrom their

26

27 "in the form or forms in which it is ordinarily

28 C iv. Proc. Code § 2031.280(d)(1). Cf. Kayne v. Grande Holdings,

cover emails does not comply with the

directive that electronically stored information be produced

maintained or in a form that is reasonably

usable."

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).

D.

Robson Should Reproduce Electronically Stored Documents

with Metadata.

Section 2031.280 requires that a party responding to document requests

produce

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

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

ordinarily maintained or in a

(requiring documents be produced "as they are kept in the usual course of

failed to do so. Rather,Robson has produced thousands of pages of emails

paper printouts. Steinsapir Decl.¶¶ 14-15. More importantly,Robson has

business"). Robs.on has

and electronic files as

produced the sole draft

9 ~I of his book as a "recently created" PDF—not in its original file formal with metadata intact.

Id.

10

¶ 16. Neither the paper printouts, nor the PDF book draft, qualify as a "reasonably

usable''form:.

 

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A s outlined above, as soon as Defendants learned that Robson had

authored a book,they

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

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to produce this

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

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

w hen the document was created and modified, is absolutely crucial. Without it,

unable to tell ifRobson altered the draft during the course ofthis lawsuit. See Kunkel

metadata reflecting

Defendants will be

Decl. ¶ 10.

O n October 25, Robson's counsel responded to Defendants' request for

metadata,

representing thatthe book "was written using book publishing

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

software," and he had only received

format," he continued,"I have to find a way to get it.I will probably

downloaded onto one ofour computers.Please advise."Id. Defendants' counsel promptly

have to have the program

requested the PDF in addition to the "original electronic file in its

can find out the program we need to open it."Id. Nevertheless, Robson only produced PDF and

original format," stating,"We

a

now refuses to produce the originalfile or any metadata. Id. Ex. 12. Robson has

offered no

explanation for his sudden unwillingness to produce the book in its original format

with metadata.

B ecause 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

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1 usable form. See Ellis v. Toshiba Am. Info. Sys., Inc., 218

Cal.App.4th 853, 862 n.6(2013)

2 (persuasive federal authority holds that"production of electronically stored

information in PDF

3 format may not be sufficient ifthe requesting party can show that the format

"`[is] not "reasonably

4 usable" and thatthe native format,with accompanying

metadata, meet the criteria of"reasonably

5 usable" whereas the PDF format does] not."'), quoting City of Colton v. Am.

Promotional Events,

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 ofpaper printouts:(1)are not electronically

searchable;(2)are missing their

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.

11

E. Robson Should Submit to a Forensic Examination

of His Accounts.

12

R o.bson's discovery abuses, as outlined above,justify forensic examination of

a

Robson's

13 email accounts,computers, and other electronic devices.

Defendants only learned of rriany ofthe

14 deficiencies with Robson's production by virtue of

documents produced by third-parties to this

15 action. There is simply no way to know how many other

responsive documents Robson has still

16 failed to produce. In addition,Robson has offered no explanation

for his belated production of

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 D efendants should not be forced to continue playing "whack-a-mole" in

response to

21 Robson's document productions. Under these circumstances,athird-party forensic examination of

22 R obson'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,

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 fishing expedition and defendants were entitled to

a

discovery ofthe

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

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

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

3 such an examination. He explains the process in his accompanying

4 Robson's privacy and privilege concerns can be addressed.Kunkel

5 .provided interrogatory responses listing his computers and devices.

6

F. Robson Should Be Sanctioned.

declaration, and explains how

Decl. ¶¶ 4-11.Robson has

Steinsapir Decl.,Ex. 35.

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 thatthe Court"shall

impose" sanctions

9

against the losing party of a motion to compel, unless the party has

"substantial justification," or

10 the imposition ofthe 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

~ o~~

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a ~, Qo

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13 should pay a sanction to the prevailing party." Clement v. Alegre, 177 Ca1.App.4th 1277, 1286

W

~ (2009). Monetary sanctions are appropriate to cover "reasonable expenses, including attorney's

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fees" incurred by parties in obtaining the discovery to which they are entitled. Cal. Civ. Proc.

Code § 2023.030(a).Reasonable expenses include time spent

researching and preparing the

17 motion and related court time. Ghanooni v. Super Shuttle, 20 Ca1.App.4th 256,

262 (1993); Ellis,

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x

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21

22

23

24

25

26

27

28

218 Cal.App.4th at 880 (affirming $165,000 award for discovery

abuses); Kayne, 198 Ca1.App.4th

at 1472(affirming $74,809 award for documents produced in a

disordered state).

Sanctions are warranted here.Defendants seek information and documents that

are directly

relevant to.Robson's claims. These are documents that

Robson agreed to produce, but nevertheless

failed to produce, despite being given every opportunity to cure

the deficiencies in his production.

There is no justification,.let alone a substantial one, for Robson's patent

failure to produce email

exchanges with his family or for his redactions of clearly non-privileged

correspondence. Nor has

Robson offered any cognizable justification for his refusal to

produce documents in a complete

and reasonably usable form with attachments and metadata intact.Defendants

are therefore

entitled to compensation for the time spent in bringing this motion,

and the Court should issue

monetary sanctions against Robson in the amount of $17,100. Steinsapir

Decl. ¶ 52.

15

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

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DATED:December 27,2016

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KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

BY:

Howar

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

eitzman

16

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE