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Case 2:16-cv-01892-RAJ Document 43-1 Filed 02/16/17 Page 1 of 79

Exhibit A
Case 2:16-cv-01892-RAJ Document 43-1 Filed 02/16/17 Page 2 of 79
January 12, 2017 - 1

1 UNITED STATES DISTRICT COURT

2 WESTERN DISTRICT OF WASHINGTON AT SEATTLE

3 ________________________________________________________________
)
4 GETTY IMAGES, INC., a Delaware ) C16-1892-RAJ
Corporation, )
5 ) SEATTLE, WASHINGTON
Plaintiff, )
6 ) January 12, 2017
v. )
7 ) Preliminary
ROXANNE MOTAMEDI, an ) Injunction Hearing
8 individual, )
)
9 Defendant. )

10 ________________________________________________________________

11 VERBATIM REPORT OF PROCEEDINGS


BEFORE THE HONORABLE RICHARD A. JONES
12 UNITED STATES DISTRICT JUDGE
________________________________________________________________
13

14
APPEARANCES:
15
For the Plaintiff: Jeffrey A. James
16 Tina M. Aiken
Sebris Busto James
17 14205 SE 36th Street
Suite 325
18 Bellevue, WA 98006

19

20 For the Defendant: Matthew Schmidt


Balsteriere Fariello
21 225 Broadway
29th Floor
22 New York, NY 10007

23 Duncan Manville
Savitt Bruce & Willey
24 1425 Fourth Avenue
Suite 800
25 Seattle, WA 98101

Nickoline Drury - RMR, CRR - Official Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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January 12, 2017 - 2

1 THE COURT: Good morning. Please be seated.

2 ALL: Good morning, Your Honor.

3 THE CLERK: We are here in the matter of Getty Images,

4 Inc. versus Roxanne Motamedi, Cause No. C16-1892, assigned to

5 this Court.

6 If counsel could please rise and make your appearances for

7 the record.

8 MR. JAMES: Good morning. I'm Jeff James. I'm counsel

9 for Getty Images.

10 THE COURT: Good morning.

11 MS. AIKEN: Good morning. My name is Tina Aiken,

12 counsel for Getty Images.

13 THE COURT: Good morning.

14 MS. MIYASHITA: Good morning. Yoko Miyashita, general

15 counsel for Getty Images.

16 THE COURT: Good morning.

17 Who will be representing counsel for the plaintiffs?

18 MR. JAMES: I will, Your Honor.

19 THE COURT: All right. You may be seated. Thank you.

20 MR. SCHMIDT: Good morning, Your Honor. Matthew

21 Schmidt, Balsteriere Fariello, counsel for defendant, Roxanne

22 Motamedi.

23 THE COURT: All right. Good morning.

24 MR. MANVILLE: Good morning, Your Honor. Duncan

25 Manville, counsel for Roxanne Motamedi.

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1 THE COURT: Good morning.

2 Who will be speaking on behalf of the defendant?

3 MR. SCHMIDT: I will, Your Honor.

4 THE COURT: All right. Counsel, let me hear from

5 plaintiffs. First of all, it's my understanding that there was

6 some expectation of offering testimony today, counsel, or is that

7 not correct?

8 MR. JAMES: Not on behalf of the plaintiffs, Your Honor.

9 THE COURT: Is there a need to have testimony from the

10 defendant?

11 MR. SCHMIDT: I believe so, Your Honor. I believe

12 hearing from Ms. Motamedi will greatly assist the Court in

13 evaluating this.

14 THE COURT: And, counsel, what's your projection of the

15 amount of time necessary for her testimony?

16 MR. SCHMIDT: Our cross, about 40 minutes, Your Honor --

17 our direct, about 40 minutes, Your Honor.

18 THE COURT: Well, you can't cross unless you have

19 direct, counsel.

20 MR. SCHMIDT: I understand, Your Honor. I misspoke.

21 THE COURT: All right.

22 Counsel.

23 MR. JAMES: Your Honor, if they present testimony -- oh.

24 May I proceed?

25 THE COURT: Yes.

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1 MR. JAMES: Okay. I'm sorry. I wasn't sure if --

2 THE COURT: Well, let me hear from the witness first,

3 and we will get the testimony out of the way, and then I will

4 take formal argument from the parties.

5 MR. JAMES: Okay.

6 THE COURT: So if the plaintiff has no need to have an

7 offering of testimony, then we will move to the defense, and

8 counsel can offer whatever testimony he would like to present at

9 this time.

10 MR. SCHMIDT: Thank you, Your Honor.

11 THE COURT: Please step forward.

12 And, counsel, is there something significantly different

13 than any declaration that's been presented to this Court that you

14 are aware of?

15 MR. SCHMIDT: We did not present any declarations from

16 Ms. Motamedi, Your Honor. We believed that if we had offered

17 some testimony today, that would be the best way for the Court to

18 assess her position and her situation.

19 THE COURT: Okay. Good morning.

20 MS. MOTAMEDI: Good morning.

21 THE CLERK: Please raise your right hand.

22 ROXANNE MOTAMEDI,

23 having been sworn under oath, testified as follows:

24 THE CLERK: Okay. Please have a seat.

25 If you could state your first and last names, and spell your

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ROXANNE MOTAMEDI - Direct (Schmidt) January 12, 2017 - 5

1 last name for the record?

2 MS. MOTAMEDI: Roxanne Motamedi, M-o-t-a-m-e-d-i.

3 THE COURT: Counsel, you may inquire.

4 MR. SCHMIDT: Thank you, Your Honor.

5 DIRECT EXAMINATION

6 BY MR. SCHMIDT:

7 Q Ms. Motamedi, have you worked at Getty Images?

8 A Sixteen years.

9 Q Okay. And what industry did you work in at Getty Images?

10 A I was in charge of the entertainment division.

11 Q Okay. And how long were you working in that industry,

12 including your time at Getty and before that?

13 A A total of about 25 years.

14 Q Have you now left Getty Images?

15 A Yes.

16 Q And when did you leave?

17 A November 7th, I believe, or 4th.

18 Q And did you resign from Getty Images, or were you terminated?

19 A I resigned from Getty Images.

20 Q What was your final title at Getty Images when you left?

21 A VP of entertainment.

22 Q And just so the Court is aware, what does Getty Images do?

23 A We are a photo agency, imagery.

24 Q And what does that mean? What's a photo agency?

25 A We produce content for our clients, from stock photography to

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ROXANNE MOTAMEDI - Direct (Schmidt) January 12, 2017 - 6

1 entertainment, to sports, news --

2 Q And you said "stock" --

3 A -- media.

4 Q I'm sorry. Are you finished?

5 A Yes.

6 Q Okay. You said "stock photography." What is that, briefly?

7 A Stock photography, basically, it's imagery that is being used

8 for commercial use, and the other part, sport, news, and

9 entertainment, it's called editorial.

10 Q And you worked in the editorial division, I understand?

11 A Correct.

12 Q And what type of content does Getty work with in the

13 editorial division?

14 A It's sports, basically, entertainment, and news photography.

15 Q And you said "entertainment." That was the division that you

16 worked for; is that correct?

17 A Correct.

18 Q And what sort of content does that produce?

19 A It's content that is produced from concerts, from award

20 shows, from red carpet, from movie premiers. It can be anything

21 from opening of a store, working with different brands. It can

22 be liquor. It can be clothing. Anything that basically has

23 celebrities and brands attached to it.

24 Q And you've explained sort of the content. What does it mean

25 to produce that content?

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ROXANNE MOTAMEDI - Direct (Schmidt) January 12, 2017 - 7

1 A It's basically getting photographers to events so they can

2 photograph the event. And that's done through different ways.

3 It's either you're hired by a client or you ask for a credential

4 and you simply send a photographer. That's what I mean by

5 "producing content."

6 Q And you personally, what was your role in then producing the

7 content with Getty Images?

8 A My role was that I was in charge of, basically, the

9 entertainment division, and my role was in charge of the

10 photographers, relations with publicists, managers, or agents,

11 knowing -- to deal with brands, or relationship base, basically,

12 and working closely with the photographer to make sure we got the

13 right content for our customer.

14 Q And does Getty Images make money from the entertainment

15 division?

16 A Yes.

17 Q How does it make money from the entertainment division?

18 A It's by selling the content that is produced to the clients.

19 Clients can be like , it can be websites, it can

20 be TV shows, just any . I don't know. I mean, different

21 kinds of -- these are considered our clients. Globally,

22 everybody who is interested in the entertainment business, and

23 they're doing or writing a story about entertainment.

24 Q And you talk about how Getty Images sells. Were you

25 personally involved in selling that content to those clients?

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1 A No. That was another side.

2 There's only one type of content that I would sell directly

3 myself. That is, if I negotiated a deal with a talent to do

4 either their wedding or their baby pictures, which had a lot of

5 details, then, in that case, I would sell them, myself, directly

6 to magazines. But other than that, I was more on the production

7 side of things than sales.

8 Q And when working production, were there certain, you know,

9 "clients" might not be the right word, that you would work with

10 to produce the content?

11 A Yes. The clients were, in that case, again, they were the

12 publicists or they were the brands that hired us or the movie

13 studios that hired us or -- I don't know, dealing with clients at

14 , , , all of these people,

15 anyone in that industry.

16 Q And all the things you just listed, ,

17 , those are clients, I understand, from the way you

18 answered the question?

19 A Yes. For my side, yes.

20 Q Okay. And would other agencies know that Getty was working

21 with those clients?

22 A Yes.

23 Q And how would they know that?

24 A They would know that because our photographers were at the

25 events, all the other photographers were there too. But, also,

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ROXANNE MOTAMEDI - Direct (Schmidt) January 12, 2017 - 9

1 typically, Getty Images owned, I would say, of

2 the market, so the next day, or a few hours or minutes later,

3 when you went on any given website, the photos are typically

4 credited to Getty Images.

5 Q And do you know if other agencies work with the same clients,

6 not just Getty?

7 A Yes.

8 Q And how do you know that?

9 A I know that because when you -- simply, if you are at a red

10 carpet, you see hundreds of photographers behind the red carpet,

11 behind the rope on a red carpet, all of these photographers, they

12 have to go through the system to be credentialed, through the

13 same people that we work with.

14 Q And do you expect that if you left Getty Images -- you have

15 left Getty Images -- if you continued to work with those clients,

16 would Getty still work with those clients?

17 A Absolutely.

18 MR. JAMES: Objection. Calls for speculation, Your

19 Honor.

20 MR. SCHMIDT: I will withdraw the question.

21 THE COURT: Next question.

22 Q Of the clients that we talked about, that photo agencies can

23 potentially work with, , et cetera, about what

24 percentage does Getty work with, of those potential clients?

25 A All of them, pretty much.

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1 Q Did you ever sign a non-compete agreement with Getty Images?

2 A No.

3 Q Did anyone at Getty Images ever ask you to sign a non-compete

4 agreement?

5 A Yes.

6 Q Just to back up a little bit, what were your responsibilities

7 as VP of entertainment at Getty Images?

8 A To deal with the different clients and photographers,

9 publicists and managers, and all the people in imagery.

10 Q And when you said deal with photographers, what does that

11 mean to you, deal with photographers?

12 A Well, we had a certain amount of staff photographers, where

13 they received a salary from Getty Images, and then there were

14 hundreds of photographers that were a contributor to Getty

15 Images, that they basically gave us their photos, Getty sold them

16 for them, and they will receive -- they would receive a revenue

17 from the sales of the photographs.

18 Q Was most of your work with staff photographers or with what

19 you call contributing photographers?

20 A Contributors.

21 Q Are you aware that a temporary restraining order has been

22 entered in this action against you?

23 A Yes.

24 Q If I refer to that as a TRO, to save a little time, do you

25 understand what I mean by that?

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1 A Yes.

2 Q Have you reviewed the TRO in this action?

3 A Yes.

4 Q Have you followed the terms of the TRO?

5 A Yes.

6 Q Are there things that you haven't done because of the TRO?

7 A Pretty much I haven't been in touch with anyone I know

8 because of the TRO, work related, basically.

9 Q And how did the TRO stop you from doing that?

10 A I can't be in contact with anyone, so I haven't contacted

11 anyone.

12 Q Have you looked for work during the pendency of the TRO?

13 A No. Because all my relationships are in the entertainment

14 industry, and these are all the people that Getty Images work

15 with, and due to the TRO, I'm not allowed to be in touch with

16 anyone.

17 Q And do you understand that -- well, I will rephrase my

18 question. Do you understand the reason we're here today is

19 because Getty Images wishes to extend those terms of the TRO into

20 a permanent/preliminary injunction?

21 A Yes.

22 Q And you understand that the preliminary injunction, to a

23 large extent, is the same terms of the TRO?

24 A Yes.

25 Q If the preliminary injunction was entered against you, could

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1 you earn a living?

2 A No.

3 Q Why not?

4 A I can't -- the entertainment industry is the only thing I

5 know, and the only people I know in this business are around

6 entertainment. So in order to find a job, I would have to

7 contact those people, and I can't do that.

8 Q Could this have a permanent effect on your ability to earn a

9 living?

10 A Yes.

11 Q Why?

12 A As the time goes by, you become irrelevant in the business,

13 people forget about you, and you just lose the contact, what's

14 going on in the business, the opportunities.

15 Q Do you have any family obligations that could be affected by

16 a preliminary injunction?

17 A Yes. I'm supposed -- my mother had a stroke, and my sister

18 and I are responsible for everything for my mom, and right now, I

19 cannot contribute, and it's very hard for my sister.

20 Q And are you aware that in addition to the TRO terms, Getty

21 Images is seeking a preliminary injunction that would require you

22 to turn over certain of your devices and e-mail accounts?

23 A Sorry. Am I aware?

24 Q Are you aware that what Getty Images is seeking today is to

25 require you to turn over access to certain of your computer

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1 devices --

2 A Yes.

3 Q -- and e-mail accounts?

4 A Yes.

5 Q And what effect would that have on you?

6 A I wouldn't have -- I wouldn't have anything. I already can't

7 talk to people. I wouldn't have any e-mail or any -- I mean,

8 basic things you need today.

9 Q And are you aware that Getty Images is seeking, as part of

10 the preliminary injunction, that you could not use any

11 information that you learned while working at Getty Images?

12 A Yes.

13 Q And what effect would that have on you?

14 A Again, the information that I learned at Getty Images, it's

15 my -- I don't even know what it means, "information I learned at

16 Getty Images." My job was to deal with photographers, to deal

17 with clients, publicists. So I don't understand what it means by

18 "what I learned during my work at Getty Images."

19 We're not brain surgeons. We send photographers to events,

20 they cover an event, and the content goes on a website, and it

21 gets sold.

22 Q Have you heard the name Shutterstock before?

23 A Yes.

24 Q What is Shutterstock?

25 A Shutterstock is a competitor of Getty Images.

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1 Q Have you heard the name Ben Pfeifer before?

2 A Yes, I have.

3 Q Who is Ben Pfeifer?

4 A He's the head of business development, I believe, at

5 Shutterstock.

6 Q Have you ever done any work with Shutterstock?

7 A No.

8 Q Have you ever brokered any deals involving Shutterstock?

9 A No.

10 Q Have you ever had any business discussions with Ben Pfeifer?

11 A I don't know if it's business. He, about, I don't remember,

12 a year or so ago -- I don't remember the date exactly -- I know

13 somebody who worked at Shutterstock who called me and said Ben

14 Pfeifer would like to talk to me. Possibly they were looking for

15 someone. So they gave my information to Ben. Ben called me. It

16 was a phone call. We talked. Nothing amazing came out of that

17 call. We said good-bye. And he said, well, maybe he will call

18 me if he comes to LA. I never heard from him. And I never

19 talked to him again.

20 Q Have you ever heard the name Nicholas Evans-Lombe? And

21 that's E-v-a-n --

22 A Can I just go back about Ben Pfeifer?

23 Q Please. Yes.

24 A I'm sorry. The last time I met Ben, and for the first time,

25 was a few weeks ago in -- I don't remember if it was the end of

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1 November. It was a brief introduction, and that was it.

2 Q Okay. Thank you.

3 Have you ever heard the name Nicholas Evans-Lombe? And

4 that's E-v-a-n-s hyphen L-o-m-b-e.

5 A Yes.

6 Q Who is Nicholas Evans-Lombe?

7 A He was the COO of Getty Images, and now he is the CEO of

8 SilverHub Media.

9 Q What is SilverHub Media?

10 A It's another photo agency that is a start-up.

11 Q Have you ever been employed by SilverHub Media?

12 A I have done some freelance work for them.

13 Q Okay. What sort of freelance work was that?

14 A After I resigned from Getty Images, I helped them look for

15 office space, made some calls about benefits for them in the

16 States. I don't know. If they needed anything, whatever, I was

17 available.

18 Q And when was that done?

19 A After I resigned from Getty Images.

20 Q Were you paid for that consulting work?

21 A Yes.

22 Q About how much were you paid for that?

23 A 33,000.

24 Q Were you paid for anything you did involving SilverHub Media

25 while you were still at Getty?

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1 A No.

2 Q I think you said that Nicholas Evans-Lombe was the CEO of

3 Getty Images; is that right? Or COO?

4 A COO, yes.

5 Q Did you work with him when he was the COO of --

6 A Yes.

7 Q -- Getty Images?

8 And please just let me finish, simply for the court reporter.

9 A I'm sorry.

10 Q How long did you work with him at Getty Images?

11 A I think ten years.

12 Q And do you still keep in touch with Nick?

13 A Yes.

14 Q Would you consider him a friend?

15 A Yes.

16 Q About how often do you speak with him?

17 A Here and there, we talk. Lately we talk a lot more. But,

18 you know, we're in touch.

19 Q And what do you speak with him about?

20 A We talk about his kids, we have talked about his wife, we

21 talk about his dog, my dogs, about business at times, any --

22 any -- those kind of subjects.

23 Q Do you have any business plans with Nicholas Evans-Lombe?

24 A We were talking about me working for him.

25 Q Have you set up any meetings between Nick and anyone else,

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1 after he left Getty Images?

2 A Yes.

3 Q What were those meetings for?

4 A I set up a meeting for him with a photographer by the name of

5 , who was a freelance photographer, and -- to see --

6 for them to meet up and talk.

7 After the meeting, the next day or so, told me that he

8 wasn't interested. That was one meeting.

9 There was another girl, somebody else at Getty.

10 was another photographer, but I did not set up

11 that meeting. had reached out directly to Nick.

12 There was an employee at Getty Images in Los Angeles who --

13 you know, she was a friend. We were talking. She wasn't happy.

14 She was starting to maybe look, and she knew I wasn't really that

15 happy and I was considering certain things. She asked me if I

16 could set up a meeting for her, and I said, "I cannot be

17 responsible for you. I'm happy to set up a meeting, but it's

18 your decision."

19 Q And the friend you just mentioned, was that Andrea Collins?

20 A Correct.

21 Q And you mentioned . Was that meeting you set up

22 before or after he left Getty Images?

23 A After.

24 Q Did you ever discuss with Nicholas Evans-Lombe any potential

25 hires for SilverHub from Getty Images?

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1 A Yes.

2 Q What was the content of those discussions?

3 A They asked my opinion, and I gave some -- what I thought of a

4 few people. And then later on I found out that those people were

5 directly in contact with SilverHub through Nick's partner. And a

6 couple of them -- SilverHub Media already had a couple of Getty

7 employees working for them, that they knew them, and so they

8 were -- they were -- they had reached out, so ...

9 Q Did you ever discuss any photographers with Nicholas

10 Evans-Lombe?

11 A I mean, not really. I may have suggested some -- a name of

12 somebody that we couldn't work with, that wasn't -- not a Getty

13 photographer, but -- that's the best of my knowledge.

14 Q I think a few questions ago we had discussed and

15 . Are those familiar?

16 A . Uh-huh.

17 Q Thank you.

18 Did you ever discuss any of Getty's clients with Nicholas

19 Evans-Lombe?

20 A Yes, one.

21 Q And what client was that?

22 A .

23 Q And what did you discuss with Nicholas Evans-Lombe about the

24 ?

25 A I told him it could be interesting for him to try to get the

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1 .

2 Q Why did you do that?

3 A Up to today, I don't know. It was definitely -- I don't know

4 if I was testing, to see if there was potential. I don't know --

5 I don't know. I did it. I regret it highly.

6 When the deal didn't happen, I was relieved, I was very

7 happy, because I realized that there is no way on earth that a

8 start-up like SilverHub could ever handle such a huge client.

9 They just don't have the means, they don't have the content, and,

10 basically, it was the wrong -- the wrong move.

11 Q Other than what we just talked about, is there any other

12 information you can recall, sitting here today, that you shared

13 with Nicholas Evans-Lombe about Getty Images?

14 A I did send him some documents. I don't remember all the

15 content. There is one that I sent that I think was important, it

16 was the revenue of the photographers, at the beginning when we

17 were talking. And I sent them from my Getty e-mail account. And

18 I think at the time when SilverHub started and I forwarded him

19 that information, it was more like, are you kidding? Like, what

20 are you doing, trying to even have a photo agency look at the

21 revenue of these photographers with Getty? Nobody will ever

22 leave Getty to go to a start-up. And, as a matter of fact, if I

23 recall well, he replied back and said, "Are you saying we

24 shouldn't do this?" And that was -- that's what it was.

25 Q And in the future do you intend to send Nicholas Evans-Lombe

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1 any other information about Getty Images?

2 A No.

3 Q Have you ever sent any gifts to anyone on behalf of

4 SilverHub?

5 A No.

6 Q Did you ever tell any clients you were going to work at

7 SilverHub before you left Getty Images?

8 A Absolutely not. When people called me, everyone was -- they

9 were asking me where I was going. I just said, "I don't know.

10 Once I know where I go, I will get back to you."

11 And there were two reasons -- I mean, maybe one reason -- is

12 that I didn't even know if I was going to go work with Nick. I

13 wasn't sure. I kept -- I was thinking about it. I kept getting

14 cold feet. I wasn't sure, because there wasn't really a strategy

15 in place, and I wasn't comfortable. But there it was.

16 Q Thank you.

17 MR. SCHMIDT: I have no further questions, Your Honor.

18 THE COURT: Cross-examination, counsel.

19 CROSS-EXAMINATION

20 BY MR. JAMES:

21 Q Good morning, Roxanne.

22 A Good morning.

23 Q We have met before, haven't we?

24 A Yes, we have.

25 Q We met at your deposition?

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 21

1 A Correct.

2 Q Do you remember how many times you said during the deposition

3 "I don't know" or "I don't remember" when I asked you questions?

4 A Actually, no.

5 Q Do you remember I was asking you questions similar to the

6 questions Mr. Schmidt just asked you?

7 A You may have. I was very stressed and very nervous during

8 that process, so I didn't know how -- I don't -- if I said I

9 didn't remember, I didn't remember. And I've had time to think

10 about it afterwards. It's been three days. I have had a lot of

11 hours by myself in my hotel room. So that's the answer.

12 Q How much time did you spend preparing for the testimony you

13 gave today?

14 A Not a lot.

15 Q Ms. Motamedi, it's true that you sent hundreds of e-mails to

16 your personal e-mail address while you were employed by Getty

17 Images, correct?

18 A I did not count them, and I'm not sure of that.

19 Q You also sent e-mails containing highly confidential

20 information to Nick Evans-Lombe and SilverHub, correct?

21 A When I was sending them, I was not looking whether they were

22 confidential or not. Nick was a friend of mine. I was just

23 FYI'ing him. But, yes, I did send them.

24 Q And, in fact, you sent those e-mails to Mr. Lombe so that he

25 could set up a competing business or to aid him in setting up a

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 22

1 competing business known as SilverHub?

2 A Absolutely not.

3 Q That's a competing business that you were planning to join

4 once you finally walked out the door of Getty Images; isn't that

5 true?

6 A No, not so black and white.

7 Q You helped Andrea Collins leave Getty Images so that she

8 could set up an office, in advance of you, to work for SilverHub

9 in Los Angeles; isn't that true?

10 A No, I did not send her ahead of me to set up an office. She

11 decided to leave, and she was available to work for Nick.

12 Q In fact, you negotiated a high exit package for Ms. Collins

13 in your role as a vice president of Getty, correct?

14 A I did not negotiate. I don't know if it's called

15 "negotiation." I talked to her. She told me what salary she

16 wanted to leave Getty. I passed on the message to -- she met

17 with Nick in person. They talked.

18 Q When did she meet with Nick in person?

19 A I don't remember.

20 Q How do you know that?

21 A Because she asked me to set up the meeting with Nick.

22 Q When did she ask you to set up a meeting with Nick?

23 A I don't know. I don't remember the time.

24 Q Where did this meeting take place?

25 A At a restaurant.

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 23

1 Q What restaurant?

2 A Four Seasons.

3 Q Four Seasons where, what address?

4 A In Los Angeles.

5 Q And who was present at that meeting?

6 A Me, Andrea, and Nick.

7 Q What did you talk about?

8 A She wanted to hear about the opportunities at SilverHub from

9 Nick.

10 Q She was an employee of Getty Images at the time, correct?

11 A Yes.

12 Q And you were a vice president of Getty Images at the time,

13 correct?

14 A Correct.

15 Q And you knew Nick Evans-Lombe was a competitor of Getty

16 Images at the time, correct?

17 A The fact is that I didn't think a company that was a

18 start-up -- and today I believe -- I know they made about

19 $3 million -- was a competitor of a multibillion-dollar company.

20 But I understand how it can be perceived that, yes, he was a

21 competitor.

22 Q In fact, Ms. Motamedi, didn't you tell Nick Evans-Lombe that

23 he was going to have to pay Ms. Collins approximately $200,000

24 for her salary in an e-mail? Didn't you tell him that?

25 A I am sure I did. But that was not a number that I made up.

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 24

1 It was something that Andrea wanted. So I passed on the message.

2 Q And she's currently working for SilverHub?

3 A I don't know. I think so. I don't know what happened. I

4 don't know if she's freelancing or -- I don't know what happened,

5 because I haven't talked to her since the lawsuit.

6 Q Do you recall Ms. Collins sending you an app called Contact

7 Mover in order to allow you to move all the Outlook Exchange

8 contacts to your iCloud so that you could access those after

9 November 6, when you started working with SilverHub?

10 A Correct, she sent me that. I didn't know what it was, and

11 she told me. I never did it.

12 Q What did your husband do for SilverHub?

13 A My husband was purely assisting me, helping me a little bit

14 with things that they needed help, because he just knows a little

15 bit better. He knew the real estate market. He was going to

16 give a little help with that, and just basically things that I

17 thought he knew more about than I did.

18 Q Do you remember when I asked you in your deposition whether

19 your husband worked for you?

20 A Yes.

21 Q Do you remember what your answer was?

22 A I said no.

23 Q Do you remember when I asked you if you worked for your

24 husband?

25 A If I worked for my husband?

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 25

1 Q Yes.

2 A Yes. Yes. I don't remember the --

3 Q Do you remember what your answer was?

4 A No.

5 Q Can you tell this Court why there would be numerous e-mails

6 and telephone calls going back and forth between either your

7 husband or his cell phone and his e-mail addresses to Nick

8 Evans-Lombe about SilverHub or about you working with SilverHub?

9 A My husband was helping me. He's a lot smarter than I am at a

10 lot of things. He's my husband, and I ask him questions. And he

11 was helping me. And he was using his e-mail address or -- I

12 mean, I don't know. When you're married, don't people -- it

13 was -- it wasn't a planned thing. It was -- that's just how it

14 was. There are a lot more things that my husband knows a lot

15 better than me, and he's more sophisticated than me at a lot of

16 details, and he was helping me. He wasn't working for me. For

17 me, when you say "working," it means when you're getting paid

18 working for somebody.

19 Q Isn't it true that you used your husband's cell phone and

20 e-mail addresses to conceal from Getty Images communications you

21 were having with SilverHub?

22 A Conceal? Sorry. What do you mean?

23 Q Well, let's start with the first part. Isn't it true that

24 you used your husband's cell phone and e-mail addresses to

25 communicate with Nick Evans-Lombe and SilverHub?

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 26

1 A Yes. But I do that, the same thing, for my sister; I do the

2 same thing for -- it's a -- we share -- yes. Yes, I did.

3 Q So when your husband is sending Getty Images documents to

4 Nick Evans-Lombe or communicating with Nick Evans-Lombe about

5 Getty information, can we infer that that is, in fact, you

6 sending those communications using your husband's cell phone and

7 e-mail addresses?

8 A Yes. If it was sent, yes.

9 Q How many computers does your husband have?

10 A I don't know.

11 Q How many cell phones does he have?

12 A One, I think. I don't know.

13 Q How many cell phones do you have?

14 A One.

15 Q How many cell phones have you used to communicate with Nick

16 Evans-Lombe or SilverHub about joining SilverHub or about Getty

17 Images?

18 A I don't know. Maybe I had another one in the past that was

19 an old -- a broken phone, or old phone, or something that I used,

20 but I don't -- I don't know.

21 I mean, if I sent Nick Evans-Lombe e-mail from my accounts

22 and from my Getty e-mail, and I have used my cell, I have done

23 that, I have communicated on my cell with him.

24 Q You have communicated on more than one cell phone with

25 Mr. Evans-Lombe, haven't you?

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 27

1 A Yes.

2 Q But you haven't turned over more than one cell phone to the

3 third-party forensic expert in this case to be imaged, correct?

4 A We had one number that I mentioned that was a temporary

5 phone, a temporary number, a SIM card or whatever. But I have

6 given everything that is in my possession, that was.

7 Q Did you give that SIM card to the expert?

8 A I don't know if it was a SIM card. It's a -- it was a

9 rental -- not a rental, a temporary phone number. Sorry.

10 Q Did you have a Getty Images phone in May of 2016?

11 A Yes.

12 Q Can you tell the Court what you meant when you wrote to

13 Mr. Evans-Lombe on May 26th of 2016, "I got a new number and

14 phone for a month so we can communicate"?

15 A Yes. That's the number I told you, the short -- the

16 temporary number.

17 Q So why did you need a new phone to communicate with

18 Mr. Evans-Lombe if you were just friends and just talking about

19 your dog and your mother or things like that?

20 A I just wanted to have a separate phone for talking to him,

21 because my other phone was for other purposes, and I decided to

22 get a different phone. That's all.

23 Q And the reason you did that was because you were plotting

24 against Getty Images to go to work at SilverHub; isn't that

25 true?

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 28

1 A I would not say that.

2 Q Planning to go to work for SilverHub, would you say that,

3 Ms. Motamedi?

4 A No. I would say I was thinking.

5 Q You were thinking, as of May of 2016, about going to work for

6 SilverHub; is that your testimony?

7 A There were discussions, for sure.

8 Q And when did you make your decision?

9 A I didn't. At the end, I was still -- when I left New York in

10 November to go to Los Angeles, I sent an e-mail to Nick that I

11 said, "Are you sure I want to do this?" I still was not sure. I

12 was definitely talking to him about joining. There were

13 conversations. But, I don't know why, but I was still holding

14 back.

15 Q You went to New York in either late October or November for

16 the ostensible purpose of introducing to your

17 replacement at Getty Images, correct?

18 A My replacement?

19 I went to New York -- sorry. In October, I was in New York,

20 yes.

21 Q And did you have a meeting with while you were

22 there?

23 A Yes.

24 Q And did you also have a meeting with Nick Evans-Lombe while

25 you were there?

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 29

1 A I'm not sure Nick was there then. I don't remember.

2 Q Did you have a meeting with Shutterstock then?

3 A No. In November -- my only meeting with, as I mentioned

4 before, with Shutterstock, was the day I was catching a flight

5 back to Los Angeles, where Nick introduced me to Ben Pfeifer.

6 Q Okay. So Nick Evans-Lombe was at this meeting where he

7 introduces you to Ben Pfeifer?

8 A Correct.

9 Q How did he happen to be at this meeting?

10 A Nick?

11 Q Yes.

12 A He was in LA -- I mean, he was in New York.

13 Q And how did he happen to be in New York and run into you and

14 Ben Pfeifer at the same time?

15 A He didn't run -- he didn't run into me to meet Ben Pfeifer.

16 He was -- in November, I think it was, when he was -- I don't

17 remember if it was October or November, when I set up a meeting

18 for to meet with Nick Evans-Lombe. Nick was in New

19 York.

20 That day, like a few days -- I was with my mom. I was

21 planning to go back to Los Angeles. The day I was planning to go

22 to Los Angeles, Nick asked me -- he just set up a meeting at a

23 coffee shop to meet with Ben Pfeifer. I met him there for the

24 first time. And after that, I went to the airport to catch my

25 flight, which I had to come back because my friends lost their

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 30

1 mother. But that was the first time I met Ben Pfeifer.

2 Q This was just a coincidental, happenstance meeting? People

3 happened to be there and you had coffee?

4 A Nick was in New York. I had set up the meeting with

5 to meet with him. He was in New York to talk to me. We

6 were talking. He was in New York. He asked me to set up a

7 meeting to meet Ben Pfeifer. So I did. And I met him, yes. I'm

8 not sure what -- sorry. I did.

9 Q Roxanne, isn't it true that this meeting was set up through a

10 series of e-mail exchanged back and forth with you, Ben Pfeifer,

11 and Evans-Lombe over a period of time, and it wasn't a

12 happenstance, coincidental meeting, but it was a planned meeting

13 to discuss your role with SilverHub, SilverHub's role with

14 Shutterstock, Shutterstock's role with you?

15 A I don't know if it was -- I don't remember if there were

16 e-mails that it was preplanned to meet with Ben. Maybe there

17 were e-mails. I don't remember at this time. But I do know that

18 Nick wanted me to meet with Ben Pfeifer, yes, he did, and I met

19 with him.

20 Q Why did Nick want you to meet with Ben Pfeifer, senior vice

21 president of business development for Shutterstock?

22 A I've never met him before. He thought it was good for us to

23 meet. That if I was -- he had signed a syndication deal for

24 photos with Shutterstock, I think, a week or ten days later. I

25 don't remember, again, the date. There was a press release that

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 31

1 went out that he was -- SilverHub Media does not have

2 salespeople, a sales organization to sell photos, so the content

3 was going to be sold via Shutterstock. That's what -- so they

4 knew each other, they were talking, they had this business deal

5 together.

6 Q And what role did you play in that business? That's what I'm

7 trying to find out here, Roxanne.

8 A In what business?

9 Q In either SilverHub's business or Shutterstock's business.

10 A I had nothing to do in the Shutter -- any role at all in

11 Shutterstock business. I have been in communication with Nick

12 that he wanted to hire me, and actually, towards the end, he told

13 me that it was about time for me to make a decision, make up my

14 mind.

15 Q What did SilverHub and Nick Evans-Lombe pay you $33,000 for?

16 A For different things. Helping with, as I mentioned, real

17 estate, benefits. I set up -- facilitate anything they wanted,

18 basically. I don't at this point remember. But that -- odds and

19 ends.

20 Q Do you have a real estate license?

21 A No, I don't.

22 Q Are you a real estate broker?

23 A No, I'm not.

24 Q What did you do to facilitate real estate for SilverHub?

25 A Looking at offices for them.

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 32

1 Q And they paid you $33,000 for that?

2 A No, not that. It wasn't just for that. They paid me $33,000

3 for a fee. I didn't have my job. So that was what was

4 negotiated.

5 Q "That was what was negotiated." So you did have negotiations

6 with SilverHub about providing services to them?

7 A After I left Getty Images, yes.

8 Q So your testimony is, you didn't have any negotiations with

9 them before you left Getty Images?

10 A We were in talks, yes. We were talking, negotiating. We

11 were communicating, yes, absolutely.

12 Q So what relationship did you introduce them to, to earn this

13 $33,000?

14 A What do you mean?

15 Q What contracts did you facilitate on behalf of SilverHub?

16 A I don't understand what you mean by "what contracts did you

17 facilitate for SilverHub." I'm sorry.

18 Q I will be as clear as I can. And I'm trying to find out from

19 you, Roxanne, other than looking at some office space, what did

20 you do for SilverHub to earn that $33,000?

21 A It was a freelancing fee that I received from him, that if I

22 signed, that would, I would say, may be part of my salary if I

23 continued my negotiation with them and signed a contract with

24 them, which I did not. It was just a fee that was agreed, that

25 negotiation.

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 33

1 Q For what?

2 A To help them, to be -- to -- I left Getty Images. Nick knew

3 that I needed money. And that's something that was negotiated,

4 to help them with any type of business that he needed for me to

5 do after I left Getty Images.

6 Q You sent them two different invoices, didn't you, Roxanne?

7 A Uh-huh.

8 Q And what did you invoice them for?

9 A One of them was -- I believe it was for a benefit, COBRA,

10 because I didn't have benefits after I left Getty Images.

11 Q Are you saying you invoiced SilverHub for the cost of your

12 COBRA benefits after leaving Getty?

13 A Yes.

14 Q And they agreed to pay that?

15 A Yes.

16 Q What else did you invoice them for?

17 A I don't remember.

18 Q Your testimony, when you were responding to your counsel's

19 questions about , is that you thought it

20 would be interesting for SilverHub to get .

21 A Uh-huh.

22 Q Do you remember that?

23 A Yes.

24 Q In fact, didn't you send e-mails to Mr. Evans-Lombe telling

25 him that it was absolutely essential for them to get the

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 34

1 and pushing him to get ?

2 A Nick was very familiar with and the

3 importance of and . And as we were

4 talking, I sent him that contract, and I said, yes, it is very

5 important to get this, because it was a -- in my head, not having

6 made up my decision, it was a clear way to say if there was a

7 chance for SilverHub to even succeed.

8 It was wrong. I sent it. I know I did. And I know I asked

9 him -- I said, it's very important. I did that. I'm very sorry,

10 but I did it.

11 Q And you sent dozens of contracts to SilverHub, didn't you?

12 A I don't recall the dozens. I don't recall what other

13 contracts I sent to SilverHub. That I never -- this is the only

14 contract about a business that I sent -- as far as I remember,

15 that we discussed, that I said this is important. After that

16 went away, it was -- as I mentioned, it was very important -- it

17 was a blessing that he didn't get this.

18 Q Is that what you told him in an e-mail, that this is a

19 blessing you didn't get that, Nick?

20 A No. I told him in person, after -- when we met, I told

21 him -- you know, he -- basically, , I

22 think, told him that he didn't have the content.

23 ,

24 and SilverHub simply doesn't have -- it's made up of very few

25 employees. They don't have staff photographers. They don't --

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 35

1 they don't own the right to any photographs that they can give

2 away as an exchange. They don't have the content. They don't

3 have video. There is a lot that they just don't have. They

4 could not have supported that contract.

5 Q So you were just trying to help them, SilverHub?

6 A I think, when I send that e-mail about , it

7 was, not only a stupid move, but it was only a test for me to

8 see, was there ever any chance, I would say, for SilverHub to

9 ever take off.

10 Q Were you just trying to help SilverHub when you forwarded on

11 highly confidential, strategic information about Getty Images

12 that had been shared with you by Craig Peters, Getty Images'

13 chief operating officer?

14 A At the time I send those e-mails, I mentioned I hadn't read

15 that they were highly confidential. I just FYI'd Nick because --

16 I just did. I know it sounds -- when I talk, I know how it comes

17 off. But at the time when I was sending it to him, it was

18 just -- it was FYI. Because I remember also, for the longest

19 time, I almost felt sorry that they were trying to build an

20 agency that was never going to compete with Getty.

21 Getty is the largest photo agency in the world. It's taken

22 20-somewhat years, hundreds of acquisitions, to get to where

23 Getty Images is today. Nobody else, including Shutterstock, will

24 ever come this close to Getty Images and where they are.

25 The fact that I left Getty Images is not going to make any

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 36

1 difference in their business, because the clients of Getty

2 Images, whether they know me or they don't know me -- they may,

3 if I end up somewhere else, take a call from me and say, sure,

4 come on, tell us your story, what are you doing -- but they will

5 never leave Getty Images because simply nobody in the world can

6 offer these clients what Getty offers them. Simple.

7 MR. JAMES: Move to strike all of the testimony that was

8 non-responsive to the question.

9 THE COURT: Next question, counsel.

10 THE WITNESS: Sorry.

11 Q (By Mr. James:) Ms. Motamedi, you're free to go out and

12 develop new contacts with photographers you have never worked

13 with before; isn't that true?

14 A Most likely.

15 Q You're able to go out and develop relationships with new

16 clients that you never worked with at Getty; isn't that true?

17 A I wish I knew who the clients were, because if I knew the

18 clients that I didn't know, I would have brought them to Getty.

19 But I think, pretty much, Getty, thumbs up, would have every

20 single deal in place at Getty Images and every -- everybody works

21 with Getty Images.

22 Q In fact, the relationships that you built at Getty Images,

23 you were paid to build, true?

24 A I worked at Getty Images, and when you work somewhere, you

25 build relationships.

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ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 37

1 Q You were paid for 16 years to build those relationships,

2 weren't you?

3 A I was paid to do my job.

4 Q During the time you were employed by Getty Images, didn't you

5 submit expense reports in the thousands of dollars?

6 A Yes. Everybody has expense reports that you expense your --

7 and the company knew about them, correct.

8 Q And, in fact, if we were to go through all your expense

9 reports, they might even be in the tens of thousands of dollars;

10 isn't that true, Ms. Motamedi?

11 A I'm sure, if you say so.

12 Q And those tens of thousands of dollars were spent by you

13 wining and dining or meeting with people to develop a

14 relationship on behalf of Getty Images, correct?

15 A Yes. That's part of the business.

16 Q That's part of the business, exactly.

17 MR. JAMES: Your Honor, in the interest of time, I could

18 continue with this cross-examination for a longer period of time,

19 but I'm not sure if there's any reason to go on any further at

20 this point.

21 THE COURT: I don't think that there is, counsel. I

22 think you are starting to repeat the same argument that you made

23 in your brief, so it's not required for the Court.

24 MR. JAMES: I will step down. Thank you.

25 THE COURT: Any redirect, counsel?

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ROXANNE MOTAMEDI - Redirect (Schmidt) January 12, 2017 - 38

1 MR. SCHMIDT: Just a few questions, Your Honor.

2 THE COURT: All right. You may.

3 REDIRECT EXAMINATION

4 BY MR. SCHMIDT:

5 Q Ms. Motamedi, we talked before about the TRO, and you said

6 that you reviewed it, correct?

7 A Yes.

8 Q And my colleague here was just discussing some devices you

9 turned over pursuant to the TRO. Do you remember that?

10 A Yes.

11 Q Do you remember the language in the TRO that says, "Defendant

12 shall immediately deliver to the third-party expert all

13 computers, flash drives, SD cards, cell phones, and other

14 external drives used by her since January 1, 2015, that are in

15 defendant's possession, custody, and control, of which she is

16 aware"? Do you remember that?

17 A Yes. Yes.

18 Q And did you perform a search of your home for devices that,

19 you know, may correspond to that?

20 A Everything that was around.

21 Q And how shortly did you do that after the TRO was entered?

22 A Immediately.

23 Q And then did you then take those devices and give them to the

24 third-party expert?

25 A Yes.

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ROXANNE MOTAMEDI - Redirect (Schmidt) January 12, 2017 - 39

1 Q Is there any device that you're aware of at the time or are

2 aware of now that you intentionally did not provide to a third

3 party?

4 A Absolutely not.

5 Q Just a few questions about photographers. My colleague was

6 asking questions about photographers. Do you remember those?

7 A Yes.

8 Q When you choose a photographer -- do you choose a

9 photographer for a project that you are working on?

10 A Sometimes we choose a photographer, and sometimes -- can you

11 be more specific?

12 Q Of course. Of course.

13 When you are working on a project, when you are producing

14 content, are there photographers that are involved in that

15 project?

16 A Yes.

17 Q How are those photographers chosen?

18 A Often by the client, and sometimes by Getty. But it's very

19 much of a relationship thing, entertainment. So a client

20 requests certain photographers.

21 Q Thank you.

22 MR. SCHMIDT: I have nothing else, Your Honor.

23 THE COURT: Anything further, counsel?

24 MR. JAMES: Briefly, Your Honor.

25 ///

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ROXANNE MOTAMEDI - Recross (James) January 12, 2017 - 40

1 RECROSS-EXAMINATION

2 BY MR. JAMES:

3 Q Ms. Motamedi, in your discovery responses that you served in

4 response to the Court's order, I believe you identified three

5 personal e-mail addresses. Does that sound right?

6 A I believe so.

7 Q And then in your supplemental e-mail responses, you

8 identified, I believe, three or four more personal e-mail

9 addresses; is that right?

10 A I gave what I -- yes, probably.

11 Q So between the time that you served the discovery responses

12 on January 2nd, following my conversation with your counsel, you

13 remembered more e-mail addresses that you hadn't disclosed the

14 day before; is that right?

15 A The e-mail addresses that I provided after, I really -- it

16 was far-fetched, because I don't think I have even used those

17 e-mail addresses. I was trying to be as helpful as I can. I

18 gave -- I don't even know how I came up with those. I was

19 thinking if there would have been one.

20 I gave you everything I had. I wasn't hiding any e-mails.

21 There were -- I wasn't -- I was as clear as I could be.

22 Q So those new e-mail addresses have never been searched by the

23 third-party expert to disclose e-mails that you may have sent

24 from Getty Images to those e-mail addresses, or e-mails you may

25 have sent to Nick Evans-Lombe and SilverHub; is that correct?

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1 A I don't know.

2 Q One moment, please.

3 Ms. Motamedi, did you ever use the e-mail address

4 mllucas@gmail.com?

5 A Yes. That's my husband's e-mail.

6 Q That's, in fact, one of your husband's e-mail addresses,

7 correct?

8 A Yes. I think so, yeah.

9 Q And who would have been sending e-mails to Nick Evans-Lombe

10 using that e-mail address in November of 2016?

11 A I don't know. It could have been -- if I told him to send

12 something, it could have been him, or it could have been me. I

13 don't even know if we used that e-mail. I don't know.

14 Q That's one of the e-mail addresses that wasn't disclosed in

15 your discovery responses, though, right?

16 A I don't remember. I don't know because it -- I don't know.

17 MR. JAMES: Nothing further, Your Honor. Thank you.

18 THE COURT: Anything further, counsel?

19 MR. SCHMIDT: Just a few questions, Your Honor.

20 REDIRECT EXAMINATION

21 BY MR. SCHMIDT:

22 Q Ms. Motamedi, my colleague asked you some questions about

23 some e-mail addresses. You used the word "far-fetched." What

24 did you mean by that?

25 A I know, like, there was maybe an e-mail, that I said maybe it

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1 was an Apple -- or I don't remember what it was, the last one

2 that you asked me that I gave you.

3 I knew two e-mail accounts that I have, that I use, either

4 roxanne.motamedi@gmail, or swissrox@gmail. Those are the ones

5 that -- you know, you work with the e-mails that you have. Those

6 were -- and the gmail account, the roxanne.motamedi was created,

7 I believe, after I left Getty, even.

8 I was -- I use a lot my work e-mail even for personal, for my

9 family or whatever. So it was just easier.

10 Q And the two accounts that you just mentioned, the

11 swissrox@gmail.com -- it's s-w-i-s-s-r-o-x@gmail.com -- that one

12 you turned over to the third-party expert in this case; is that

13 correct?

14 A Yes.

15 Q And sitting here today, other than what you turned over to

16 the third-party expert, are there any e-mail addresses or other

17 accounts you are aware of that you have used since January 1,

18 2015, that you have not turned over?

19 A Sitting here, and as far as I remember, I don't remember. I

20 think I've -- I've frozen since this lawsuit happened, and I have

21 basically fear of doing the wrong thing. I haven't touched or

22 deleted or texted or anything because I just didn't want anything

23 to be used against me. So what I'm telling you here is the

24 truth. This is what I know.

25 Q Thank you.

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1 MR. SCHMIDT: I have nothing further.

2 THE COURT: Anything further, counsel?

3 MR. JAMES: No, Your Honor.

4 THE COURT: All right. Thank you. You may step down.

5 MS. MOTAMEDI: Thank you, Your Honor.

6 THE COURT: Any further evidence or testimony on behalf

7 of the defendant?

8 MR. SCHMIDT: Nothing from us, Your Honor.

9 THE COURT: Counsel, I will take argument at this time.

10 You may step down.

11 MS. MOTAMEDI: Oh. Thank you.

12 THE COURT: And, counsel, before we get started, there's

13 several questions that the Court has that I would like to ask

14 you.

15 MR. JAMES: Yes, Your Honor.

16 THE COURT: Perhaps that will help move along your

17 argument before this Court.

18 Are you ready?

19 MR. JAMES: Yes, Your Honor.

20 THE COURT: The first question, counsel: Under what

21 authority can you prohibit a defendant from contacting Getty

22 Images employees now, now that she's no longer an employee of

23 Getty Images? In other words, there's two different lines we

24 have here. The line of demarcation is up until the point in

25 time, which was November 4th through 7th, according to the

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1 witness's testimony, when she resigned, under what authority can

2 you prohibit her from contacting employees after she's no longer

3 employed?

4 MR. JAMES: Under both the Uniform Trade Secrets Act and

5 the Defend Trade Secrets Act, Your Honor, because the information

6 that she would be using to contact those persons is confidential

7 information that she took from Getty Images without

8 authorization. It's not a matter of her simply going into a

9 phone book and calling persons, but rather, the information that

10 she would use to contact them, we submit, are the contacts that

11 she stole from Getty Images, the contacts that she transferred to

12 her phone or did not delete from her computer. So that's Getty

13 Images' property.

14 If she runs into somebody on the street and says, hi, how are

15 you doing, or if she posts an ad in a newspaper and people

16 respond, that's one thing. But we're saying that she's going to

17 be using Getty Images information to contact those people.

18 THE COURT: Do you see the distinction between employees

19 and clients?

20 MR. JAMES: Obviously there's a distinction, Your Honor.

21 But what I'm focusing on is how she would contact them. She

22 can't use Getty Images confidential information to contact them.

23 So if her contacts are scrubbed and she doesn't have Getty

24 Images' information, and then she reaches out to contact a Getty

25 Images employee, that's different. And I would say, under that

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1 circumstance, if she's not doing anything to interfere with the

2 business relationship, there's no way to bar her from doing that.

3 THE COURT: Now, if she has a client contact just by the

4 mere fact that she remembers somebody, because you have already

5 indicated to the Court that she was turning in thousands of

6 dollars of reimbursement forms for expenses, and assuming that's

7 correct, she would just know these people, without having to

8 refer or resort back to her technology. So you say that she's

9 prohibited from engaging in that type of approach as well?

10 MR. JAMES: Under Nowogroski, memorized information can

11 be protected as a trade secret. And we have provided evidence to

12 the Court that she was forwarding on this confidential

13 information that she knew she was supposed to keep it

14 confidential and not use it after she left.

15 So, again, Your Honor, I would submit that under the

16 authorities in our brief -- Nowogroski, the Uniform Trade Secrets

17 Act, the Defend Trade Secrets Act -- for her to use information

18 that Getty has protected as a trade secret or confidential

19 information should be and can be prohibited. That would be an

20 affirmative act that this Court can grant.

21 THE COURT: Counsel, does not Nowogroski indicate that,

22 as a general rule, an employee who has not signed an agreement

23 not to compete is free, upon leaving employment, to engage in

24 competitive employment? Isn't that an accurate statement,

25 counsel?

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1 MR. JAMES: We're not saying she can't engage in any

2 competitive employment. We don't have a non-compete. That's

3 different, Your Honor, than using trade secrets and confidential

4 information to compete, interfering with relationships.

5 Nowogroski also cites to the John Davis decision, and I

6 believe it's the Cooper decision, where they affirm the law in

7 the state that says you cannot use information you gained at your

8 employer's expense, to take those relationships that were

9 developed at your employer's expense. Which was the point of my

10 questions to Ms. Motamedi, as to whether or not she's free to

11 find new contacts, to find new clients.

12 THE COURT: And let's transition now, counsel, to the

13 area of the specific relief that you are requesting, in terms of,

14 essentially, taking her devices, now that they have been copied,

15 and having a chance just to wipe them clean. Well, aren't you

16 essentially saying, throw away your phone? Because if you are

17 going to wipe everything away, you are saying, wipe it, and then

18 restore it.

19 Let me give you an alternative, counsel, and see if this

20 would be a sufficient remedy if the Court grants your request.

21 In other words, if you were to take the device from the defendant

22 in this case, you already have an identification, from all the

23 documents produced so far, of exactly what's on those devices,

24 correct? You have the images, correct?

25 MR. JAMES: Respectfully, that's not correct. A third

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1 party has the image. We have not been provided with that

2 information. We are being filtered information after it goes

3 to -- excuse me. Not filtered. We are being provided

4 information after it goes to defendants and they determine what

5 we will see and what we won't see.

6 THE COURT: What I'm trying to see, counsel, is if

7 there's a method that can be used where the device, or the

8 information derived from the device, with key word searches or

9 even names of clients that could be given to the third party,

10 with instruction to delete those, and that that would be a

11 sufficient remedy. Would you agree or disagree with that

12 proposition or opportunity, counsel?

13 MR. JAMES: I would agree, Your Honor. That's, in

14 essence, what we are arguing for.

15 The challenge and the delay may be in trying to figure that

16 out, as opposed to wiping the devices clean and allowing, if

17 there's personal information that Ms. Motamedi can identify, for

18 that to be restored onto the device. Because as we've tried to

19 make abundantly clear, time is of the essence here. These

20 devices are in her possession. She continues to have access to

21 them. I understand what she's told this Court. I understand

22 what she's told Getty Images.

23 We have evidence that Mr. Evans-Lombe and Mr. Murrell are

24 setting up a meet-for-a-drink-and-discussion in Los Angeles this

25 month, and one of the persons that was contacted, we have reason

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1 to believe, could only have been known to them if the information

2 was provided by Ms. Motamedi either prior to or after the Court's

3 injunction was entered.

4 So what you're suggesting, Your Honor, would work. What we

5 are proposing, we think, would be more expedient and would not

6 create an undue hardship for Ms. Motamedi.

7 THE COURT: Now, you used the word "expedient," counsel.

8 What, in your understanding, is the length of time that would be

9 necessary to activate your proposed method of addressing the

10 concerns of what information is on those devices?

11 MR. JAMES: I believe there would have to be

12 communication with the third-party expert, which right now is --

13 you know, we're not having ex parte contact with that person, to

14 identify all the information and to make sure that person can go

15 through and selectively determine what is Getty Images property

16 and what is not. While they're doing that, Ms. Motamedi is

17 deprived of the device. So I can't represent to the Court how

18 long that would take, but I assume it wouldn't be a number of

19 hours. I assume it would be days or longer. If she's deprived

20 of the devices during that time, there's no potential harm. But

21 we're talking about not only her phone and her computer; we're

22 talking about the two computers that she says her husband uses,

23 her husband's phone, all of the devices.

24 So the quick, effective way to remedy this would be to wipe

25 the devices, keep the operating system on there. If there's

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1 anything that they say is personal or unrelated to Getty, then

2 they can ask the third-party expert to restore that, counsel can

3 decide whether or not there's any room for disagreement over

4 whether something is personal versus Getty property, and in the

5 meantime, the irreparable harm that Getty is suffering at this

6 point and will continue to suffer will at least be blocked.

7 THE COURT: And, counsel, do you think you are in a

8 position to identify the specifics to the third party of exactly

9 what needs to be wiped or deleted by key word searches?

10 MR. JAMES: We could certainly endeavor to do that, Your

11 Honor.

12 THE COURT: I mean, you don't need a client database,

13 counsel, correct?

14 MR. JAMES: Correct.

15 And we know the telephone numbers of persons who worked for

16 us or worked with Ms. Motamedi. So, yes, we could identify that

17 information. It would take us time, but, of course, we could do

18 that.

19 THE COURT: So are you asking the Court to essentially

20 tell the defendant that she can't have access to any of her

21 methods of communicating by e-mail, cell phone, or any other

22 device for the duration of the time that you're going through the

23 analysis; is that what you are asking the Court to do?

24 MR. JAMES: Your Honor, I'm asking that she can't have

25 access to those devices. She has shown in her e-mails that she

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1 has the means and the ability to get a temporary phone, she has

2 shown in her e-mails that she has the means and the ability to

3 get a new computer. We have in the e-mails -- and I asked

4 Ms. Motamedi about it -- evidence that she at least had in her

5 possession an app that allowed her to transfer all of the

6 contact information belonging to Getty onto those machines. So

7 absent some evidence from her that she wouldn't be able to --

8 well, let me also say, Your Honor, she's not working right now,

9 by her own testimony. She doesn't have a job. She doesn't have

10 a job offer. So absent testimony from her that whatever it is

11 that she would want to do, she couldn't do by getting a temporary

12 phone or another computer, I think the balance of equities tips

13 greatly in Getty's favor to get this information out of her

14 possession so that it can be scrubbed. And if the delay is

15 caused by us putting together key word searches, we will work as

16 quickly as we can on that. But in the meantime, the devices

17 should not be in her possession; they should be in the third

18 party's possession.

19 THE COURT: Counsel, the fact that she is looking for

20 employment, counsel, and the fact that you know that there's

21 certain categories of information she shouldn't have access to,

22 what about the other personal contacts that she has, the friends

23 or relationships that she has, that are completely independent of

24 Getty Images, that she may want to contact during that time and

25 possibly secure employment?

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1 MR. JAMES: I don't think that we're asking to have that

2 information wiped long-term.

3 I had at one point talked with -- or put together a proposal

4 that I was going to share with Mr. Schmidt -- at the moment, I'm

5 not sure if I shared it or if I was just putting it together to

6 share -- that would allow her to identify her personal contacts

7 so those aren't wiped off. Whatever her personal information is,

8 Getty Images has no interest in and is not seeking to get from

9 her. So if there's a means whereby she can identify those

10 personal contacts so they're not wiped by the third-party expert,

11 we would have no objection to that.

12 THE COURT: And, counsel, are you familiar with any set

13 of circumstances where what you are proposing to this Court has

14 actually been authorized or approved under any circumstances?

15 MR. JAMES: I can't cite the Court to a specific case.

16 I would just be giving anecdotes of matters where I have had --

17 involving similar things where the Court has ordered affirmative

18 relief in terms of scrubbing computers or requiring SD phone

19 cards to be turned over or phone numbers to be reported back to

20 the defendant -- or, excuse me, to the employer.

21 THE COURT: And if I'm an employee of Getty Images and I

22 terminate employment today, what do you do with my communication

23 devices, my cell phone, my e-mail accounts?

24 MR. JAMES: A couple things. The devices used are to be

25 turned back to Getty Images. So the computers. Cell phones

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1 might be turned back or there might be permission to allow the

2 individual to continue to use that. The individual will also,

3 though, be asked to sign a separation statement whereby they

4 affirm their obligation not to use Getty Images confidential

5 information, to preserve and protect that, which is one of the

6 things that Ms. Motamedi has not done in this case. And that's

7 one of the things that was covered in her deposition.

8 We're not offering a double standard here, Your Honor, if

9 that's what your question is getting at. Getty Images protects

10 confidential information from all departing employees, to the

11 best of its ability.

12 THE COURT: And what if that employee has their own

13 personal phone, would you be trying to access that information as

14 well?

15 MR. JAMES: At that point, Your Honor, we are relying on

16 the employee's integrity and their commitment to comply with

17 their non-disclosure obligations and confidentiality obligations

18 and the code of conduct. This is not that case. This is a

19 unique case involving extraordinary circumstances. We have

20 provided evidence to the Court showing that Ms. Motamedi has --

21 she will say one thing and she will do another. And in this case

22 we're asking for affirmative relief that goes beyond what would

23 occur in the ordinary course, because she has shown by her

24 actions that she cannot be trusted to keep her word.

25 THE COURT: Let me ask another question, counsel. Now

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1 that you have the information from having taken her deposition

2 and the other discovery that you referenced, and she's

3 represented to the Court that one of the contacts that she had,

4 the negotiations fell through and didn't go forward, so aren't

5 you in a position now to identify what types of contracts, what

6 specific contracts were affected or impacted, compared to those

7 that weren't impacted or that you didn't lose? In other words,

8 I'm trying to see if there's some way that you can say monetary

9 damages are sufficient, as opposed to looking for injunctive

10 relief.

11 MR. JAMES: Your Honor, we will be in the position of

12 having to seek monetary damages. We're not in a position of

13 being able to say monetary damages are sufficient because, first

14 off, we don't know the full extent of the harm. We know that the

15 keys to the kingdom, if you will, were transferred to Nick

16 Evans-Lombe and SilverHub; we know that SilverHub is engaged in a

17 relationship with Shutterstock, Getty's key competitor; and we

18 are in the process of doing discovery. We were provided with

19 80,000 pages of documents, and we have not had the opportunity to

20 look through all of those. But even that, we suspect, is the tip

21 of the iceberg.

22 So in order to stop, to the greatest extent possible, the

23 harm that's going on, that's why we need injunctive relief at

24 this point. That's why we'll ultimately seek injunctive relief,

25 if we're able, against SilverHub, to stop them from using this

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1 information as well. Once discovery proceeds in the ordinary

2 course, we will attempt to figure out the full extent of the

3 damages. But we're trying to limit that at this point.

4 THE COURT: And, counsel, at page 12 of the defendant's

5 response, they argue that "Getty Images has made no showing that

6 any of these documents show any of this information constituted

7 trade secrets."

8 Do you have any specific evidence at this point in time that

9 demonstrates that there was trade secret information?

10 MR. JAMES: Yes, Your Honor. One of the documents, for

11 example, that she sent to her home e-mail is a document involving

12 Getty's .

13

14 . It provides a

15 cutting edge to Getty Images. It is a technological aspect

16 that -- there's no -- I can represent to the Court there's no

17 question it is a trade secret.

18 Further, when she forwarded to herself the strategic plan in

19 which Getty is identifying the strengths and weaknesses in its

20 industry and in the organization, that is clearly something that

21 would meet the definition of a trade secret. It would be

22 valuable to a competitor, whether SilverHub or Shutterstock.

23 THE COURT: The next question, counsel, is, at page 4,

24 what direct evidence -- they are giving the same response -- at

25 page 4, what direct evidence is there that the defendant

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1 improperly solicited employees, diverted corporate opportunities,

2 or conspired with SilverHub?

3 Now, we have got some testimony, counsel, that you have asked

4 questions about today. Other than that, are there any specifics

5 that you can point the Court to?

6 MR. JAMES: Your Honor, there is a mountain of specific

7 evidence attached to the second declaration of Craig Peters. I

8 will give the Court a few examples, if I may.

9 One document, identified as Motamedi-0084072, is an e-mail

10 that is purportedly sent from Mitchell Lucas, it's sent to Nick

11 Evans-Lombe, it's dated 7/28/2016, the subject is "Move." And

12 reading excerpts of it, it says, quote, "Hi, Nick. I forwarded

13 you a few e-mails. Please read them carefully. I have talked to

14 a few people on my team. I believe some will follow and the rest

15 after. However, you need to know that one person on my team must

16 leave before me to start taking care of the office phones and

17 other things."

18 Moving down an e-mail, it says, "I am risking a lot by

19 sending you these e-mails, so do not forward them. My team makes

20 a lot of money. They all feel very secure" -- all caps -- "so I

21 just want to make sure that you are well funded. Just text my

22 cell if you need to talk as this e-mail is from Mitchell's." And

23 it's signed off as "R."

24 That's but one example, Your Honor. And there are scores of

25 examples attached to the second declaration of Craig Peters.

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1 THE COURT: And then the last question, I think,

2 counsel, one last question I have is, are you asking the Court to

3 prohibit her from having contact forever with any person that she

4 had a relationship or contact with at Getty Images? In other

5 words, can't a former employee or can't a former client of Getty

6 Images independently initiate contact with the defendant in this

7 case, and how is the Court to prohibit that type of contact,

8 which she hasn't initiated? How are we going to be in a position

9 to assess if she had any involvement in that contact?

10 MR. JAMES: So to answer the first part of your

11 question, we're not asking for a prohibition forever. At this

12 point we're only seeking preliminary injunction through the date

13 of trial. And at trial, to the extent that we have a basis for

14 further injunctive relief, we will put on the evidence at that

15 time.

16 The second part of your question, though, I believe deals

17 with solicitation and what she would do in that kind of a

18 situation. So, for example, if an employee reaches out and says,

19 "Hi, Roxanne, I have just left Getty Images, I would like to work

20 with you," in that hypothetical situation, Your Honor, I think we

21 would need to look at the circumstance, because she says she's

22 not working, she says she is not working with SilverHub, so is

23 this a purely personal contact or is this something that was set

24 up ahead of time while she was at Getty? Is that person also

25 taking confidential information from Getty?

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1 And if I may, Your Honor, several of the people that we

2 believe she solicited and are working now with SilverHub, as we

3 do our investigation, we're finding out also were forwarding

4 confidential information to their personal e-mail addresses. So

5 it would depend on the circumstance.

6 Purely hypothetically, if someone reaches out to her,

7 unsolicited by her, and she's not using any Getty Images

8 confidential information, there would be nothing to restrict her

9 from having a relationship with that person.

10 THE COURT: Okay. I think that's all the questions I

11 have, counsel.

12 And, again, counsel, you don't have any idea of what the time

13 frame would be for the neutral third party to make an assessment

14 of the wiping or imaging process, beyond what they have already

15 done?

16 MR. JAMES: I don't. I would be more than happy to

17 investigate that after this hearing and report back to the Court.

18 But at the moment, I do not have any information.

19 THE COURT: All right. That's all the questions I have,

20 counsel. If you wish to make additional remarks, counsel.

21 MR. JAMES: Your Honor, we've pretty much covered what I

22 intended to say. I just would like to emphasize that the

23 magnitude of this matter, as we go through this evidence, it runs

24 from coast to coast, it runs to the UK, it runs to Italy, it runs

25 to France. When I was deposing Ms. Motamedi and I asked her

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1 specifically, "Have you done anything to harm Getty Images?" that

2 was one of the few questions she answered where she didn't

3 equivocate, she said, "No." The evidence in front of you shows

4 just the opposite. It shows her plotting for years, and most

5 specifically in the weeks leading up to her last day of

6 employment, to, in fact, harm Getty Images; forwarding highly

7 confidential information and trade secrets; forwarding on salary

8 information for employees for the specific purpose of SilverHub

9 hiring those individuals away from Getty Images; reaching out to

10 her staff at Getty Images to tell them, don't sign this contract,

11 don't pursue that deal with a client, while she's simultaneously

12 e-mailing with Nick Evans-Lombe saying, you need to get this

13 contract, Getty is about to sign it, I can only hold them off for

14 so long.

15 In my experience, I have never seen as clear-cut egregious

16 behavior as what is reflected in these e-mails, and it is for

17 that reason this case warrants extraordinary injunctive relief,

18 so we can stop this harm and get to the bottom of it and figure

19 out how far it goes beyond just Ms. Motamedi and to the UK and

20 into France and Italy.

21 THE COURT: All right. Thank you, counsel.

22 MR. JAMES: Thank you, Your Honor.

23 THE COURT: Okay. We will take a ten-minute recess, and

24 we will return back at twenty minutes of 12:00. We will finish

25 this hearing this morning, and you will have a preliminary

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1 indication from the Court as to whether or not the Court is going

2 to grant the request or deny the request.

3 Ten minutes.

4 MR. JAMES: Thank you, Your Honor.

5 (Proceedings recessed.)

6 THE COURT: Please be seated. Good morning, again.

7 Counsel for the defendant. Counsel, I have several questions

8 for you, once you get settled.

9 MR. SCHMIDT: Of course, Your Honor.

10 THE COURT: Ready?

11 MR. SCHMIDT: I am, Your Honor.

12 THE COURT: All right. Counsel, multiple times, for

13 example, on page 2 of your response, you suggest that there's no

14 showing that your client intends to use any of Getty Images'

15 information in the future. And I believe in your questioning of

16 your client today, you also asked her about her intentions on

17 using this type of information in the future.

18 Is there any authority that the mere expression of intent not

19 to use or not to violate is sufficient?

20 MR. SCHMIDT: Not that I'm aware of, Your Honor. Of

21 course, the Court does not have to take my client at her word.

22 But the Court had an opportunity to see my client testify. You

23 see that she's not a liar.

24 The plaintiffs, their theory that she's lying is just based

25 on that, simply based on saying she's a liar. They presented no

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1 testimony otherwise. They have provided some declarations.

2 There's no one else live here. But, yes, if you think my client

3 is lying and is going to then provide that information, then, you

4 know, that argument does not hold. But there's nothing that

5 shows that she is lying about that.

6 THE COURT: Let me ask you this, counsel: If the Court

7 doesn't grant a preliminary injunction, under what basis could

8 the Court exercise control over your client or her conduct if

9 there were concerns expressed by counsel downstream because of

10 information that they learned or information that is shared with

11 them about what they suspect that she's doing? In other words, I

12 don't have an order to refer back to. I don't have a preliminary

13 injunction to refer back to. I'm not in a position to hold her

14 in contempt other than the fact that she says, it's not my

15 intention, just ask me.

16 MR. SCHMIDT: If the concern is only the sharing of the

17 additional confidential information which is in her possession,

18 we don't have an issue with that portion of the TRO, Your Honor,

19 which is, I believe, paragraph --

20 THE COURT: Is that 12?

21 MR. SCHMIDT: I believe it's 12, Your Honor. It's

22 broader. As you may see in the PI proposed today, it includes

23 all information she learned at Getty Images, which I assume is

24 intended to cover, you know, trade information, the skills she

25 had learned.

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1 But simply disclosing information she has in her computer, we

2 don't have an issue with that. We understand the evidence shows

3 she carelessly sent some e-mails. That's all in the past. It's

4 in her possession now. The contempt powers of the Court are more

5 than enough to ensure that she does not share that information

6 further.

7 But there's two issues, I think, with what plaintiff is

8 seeking here. One, it's simply not relying on the contempt

9 power. It's saying that my plaintiff -- my client needs to turn

10 over all of her devices, even any deletion. That's unnecessary.

11 There's no showing that she's going to be in contempt, provided

12 the TRO. I know plaintiff has made some noises that, you know,

13 they understand that she might be intending to do so or she's,

14 you know, sent some e-mails since filing of the suit. There's no

15 showing she's done that since the TRO. And I'm quite certain

16 that if there was, they would be making a lot of noise about that

17 right now. They have not done so.

18 THE COURT: Well, counsel, you refer back to the Court's

19 contempt powers --

20 MR. SCHMIDT: Of course. Yes.

21 THE COURT: -- and you refer back to the TRO. The TRO

22 expires today.

23 MR. SCHMIDT: I understand.

24 THE COURT: Second, counsel, the contempt opportunity

25 usually cross-references an order or a lawful order of a court.

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1 If there's no order in place, under what basis can the Court go

2 back and hold your client in contempt of court?

3 MR. SCHMIDT: I understand, Your Honor.

4 My argument was intending that the paragraph of the TRO that

5 only prohibits her from turning over that information, from

6 violating her NDA further, or, you know -- not that she has

7 violated -- you know, anything that would violate her NDA, we

8 don't have an issue with that, because she's not going to do

9 that. She's not going to do anything. And if the PI only covers

10 that one paragraph, just continues that from the TRO, I don't

11 have an issue with that. And I think that is narrowly tailored

12 to maintain the status quo in this action, and I think that's

13 fully sufficient.

14 THE COURT: Okay. Now, page 4 of your response suggests

15 that the plaintiff has -- your words -- no right to prevent your

16 client from contacting customers, photographers, or suppliers

17 whom she had contact with on behalf of Getty Images.

18 Now, does this cover the time when she was employed at Getty

19 Images, or are you talking about after she left Getty Images?

20 MR. SCHMIDT: There's nothing prohibiting her. She's

21 never signed a non-compete. She's never signed a

22 non-solicitation. I understand the plaintiff has argued it's a

23 trade secret. But using their own case, with Nowogroski -- I'm

24 on page 441 -- it says, "Trade secret protection will not

25 generally attach to customer lists where the information is

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1 readily ascertainable." Page 442, it lists several factors when

2 a customer list is a trade secret. It says, "whether it is

3 valuable because unknown to others."

4 As my client explained ostensibly in testimony, simply the

5 business that she's in, everyone knows who the customers are.

6 It's not a secret. You know, some other person can look up on

7 Getty Images' website or something, they see an event that's

8 covered at the Oscars or something, it will say, "Copyright -

9 Getty Images," it lists the photographer. This is readily

10 ascertainable information.

11 What's valuable isn't the secret knowledge. It's not a trade

12 secret. It's a relationship she's built with these people and

13 just her knowledge of how to work in the industry. And I

14 understand the plaintiff has argued that since she's built the

15 relationship, it's the property of Getty Images. I am not aware

16 of anything they have cited to that actually stands for that

17 proposition. People build relationships and they use them in

18 other companies all the time. That's simply her skill. And if

19 there was a non-compete or non-solicitation, that would be

20 completely different. I absolutely agree with you. But there is

21 none of that. She's never signed a non-compete. She's never

22 signed a non-solicitation.

23 THE COURT: Well, counsel, Nowogroski -- and that's

24 N-o-w-o-g-r-o-s-k-i -- that case also makes reference to the

25 following language: "The former employee, even in the absence of

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1 an enforceable covenant not to compete, remains under a duty not

2 to use or disclose, to the detriment of the former employer,

3 trade secrets acquired in the course of previous employment."

4 So, counsel, how do you align that language of that

5 particular case with the argument you just made to this Court?

6 MR. SCHMIDT: Because, as I said, the fact -- the

7 identity of these customers, these clients and these

8 photographers, they're not secret. You know, my client, anyone

9 in the industry, knows them. You know, Nicholas Evans-Lombe, who

10 we have talked about, he was the COO of Getty for 15 years. He's

11 with a competing agency now. He knows this information. And my

12 client has talked about the reason competitors know this is

13 because the customers here are events, and the photographers go

14 to the events, you see the photographers, they're credited in the

15 image. It's simply not secret information.

16 And in Nowogroski, the customer lists were secret

17 information. The former employee had memorized a customer list,

18 which is completely the case in some industries. In some

19 industries, you have a secret customer list, and that's a secret.

20 You know, many consumer industries are completely like that.

21 This is not one of them. This is like a law firm. For instance,

22 you know, Sullivan & Cromwell. They are a client of Goldman

23 Sachs. And everyone knows Sullivan & Cromwell do work for

24 Goldman Sachs. It's public record. If then an attorney moves to

25 Cravath and they do work for Goldman Sachs, it's not a secret,

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1 that's not a trade secret.

2 THE COURT: Counsel, it's my understanding, from what

3 you just stated to the Court in paragraph 12, that you don't have

4 any objection to limited aspects of what counsel for the

5 plaintiff is requesting. And that's assuming the Court grants

6 their preliminary injunction. Are there any other sections or

7 components of the TRO that you have no objection to continuation?

8 MR. SCHMIDT: No, Your Honor. Much of the TRO consists

9 of expedited discovery procedures, which, at this point,

10 plaintiff is attempting to -- it wishes to continue into the PI.

11 And while we had no issue with that at the time, it's unnecessary

12 now. We have had the expedited discovery. We have had the PI

13 hearing. We will continue forth with --

14 THE COURT REPORTER: Excuse me, counsel. You need to

15 slow down.

16 MR. SCHMIDT: I'm sorry.

17 -- we contend, normal discovery at a later time.

18 And, you know, just to briefly address, I think, related to

19 that, you know, in their reply brief, plaintiff made the argument

20 that the terms were uncontested at the TRO hearing, so there

21 shouldn't be an issue now.

22 As Your Honor knows, we were retained very shortly before the

23 TRO hearing. To have those terms shortly, for a short period of

24 time, was, as my client said, harsh. She couldn't look for a job

25 for a few weeks. But, you know, in the interest of expediting

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1 things, we agreed to it. But if you continue it onward until

2 trial, as my client testified, it could render her permanently

3 unemployable, she could never work again. She has family

4 obligations. I'm not exactly sure what she would do. It's a

5 massive hardship upon her, which is not justified by anything,

6 especially harm to Getty Images, because all of this is in the

7 past. Anything she may have sent out, anything that she may have

8 disclosed, that's happened. They can seek monetary damages on

9 that. I think they have many issues for their case, but that's

10 not for today. For today is a preliminary injunction to preserve

11 the status quo, that's narrowly tailored to prevent specific harm

12 to Getty Images.

13 THE COURT: Counsel, plaintiff lists a series of

14 references of what they characterize as uncontested evidence, on

15 page 3 of their reply, and you don't address that in your

16 opposition or had not addressed those issues in your opposition.

17 Is that a tacit agreement or concurrence or acceptance of those

18 representations as being true and correct?

19 MR. SCHMIDT: That is not, Your Honor.

20 We have checked the reference here, and there is no case law

21 we have seen that says that simply because you do not address

22 every single factual argument in opposition, that it's then

23 admitted. I believe, actually, the rule that they reference here

24 is a situation where a party does not file an opposition brief at

25 all. And, also, you know, I'm aware, of course, that if an

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1 argument is not made on opposition, then it's waived for

2 purposes -- or not opposed, it's waived for purposes of that

3 motion. But the idea that, you know, every factual assertion

4 that's not specifically dealt with on opposition is, therefore,

5 admitted as a matter of law, I'm unaware of any authority.

6 THE COURT: Counsel, those are pretty significant

7 allegations and representations being uncontested, as opposed to

8 not just filing a brief. We're talking about very precise

9 statements. For example, that your client met with

10 Mr. Evans-Lombe in as early as March 2015 and began communicating

11 at that time regarding the development of a business to compete

12 with Getty Images. That goes directly to the heart of the

13 allegations, one of the allegations in this case, and you didn't

14 even respond to that in your response.

15 MR. SCHMIDT: Your Honor, at this preliminary stage, we

16 are dealing with preliminary injunction. We're not going to deal

17 with every -- we don't need to, and it's simply -- let me back up

18 for a moment.

19 Their allegation largely -- back up -- largely falls in two

20 categories. There's information that my client may have sent

21 out, and there's this solicitation and conspiring with Nicholas

22 Evans-Lombe. This conspiracy, as the evidence shows, primarily,

23 it's someone discussing future employment. It's discussing

24 future job opportunities. She may have discussed it with some

25 employees at Getty who weren't happy and wanted to go somewhere

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1 else. She's allowed to do that. There's nothing that says she

2 can't do that. The fact that they turned this into -- they

3 characterize it as conspiring and, you know, et cetera, et

4 cetera, that doesn't change that.

5 The same with the sharing of information. My client

6 addressed that in her testimony. She sent some things that she

7 perhaps got a little, you know, aggressive when sharing. Again,

8 it doesn't show any malice intent. It doesn't show anything

9 else. And, again, it's in the past. It can be dealt with by

10 money damages. There's no injunction necessary to, you know,

11 stop that. Let alone the injunction would just stop her from

12 working indefinitely.

13 THE COURT: Counsel, in the briefing, it appears in the

14 Aiken, A-i-k-e-n, declaration, it's paragraph 2, or page 6 of the

15 reply, says that the defendant has been specifically permitted by

16 her agreements with the plaintiff to retain documents after

17 leaving employment. What agreements are you referring to?

18 MR. SCHMIDT: I'm sorry?

19 Oh. I believe her argument simply was that, under the NDA,

20 the NDA only requires that it's covered by -- I will back up a

21 moment. The NDA covers confidential information. That is,

22 things/information learned while working at Getty Images that

23 does not fall into one of two categories. One, it's something

24 that she was specifically permitted to keep, and, two,

25 information that is publicly known. And our point was they had

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1 not met their argument of showing that it was not falling into

2 any one of those categories. It wasn't necessarily all

3 confidential information. I don't think that's a major issue we

4 deal with today, because there's simply such a volume of

5 information, plaintiff has not even specifically identified what

6 it claims to fall into certain categories.

7 THE COURT: But I'm talking specifically about a

8 specific agreement. Are you aware of any specific agreement,

9 counsel?

10 MR. SCHMIDT: I am not, Your Honor.

11 THE COURT: Okay. Counsel, that's all the questions I

12 have at this time. Do you wish to make an additional record or

13 argument?

14 MR. SCHMIDT: Just a few additional points, Your Honor.

15 We discussed briefly with Mr. James about the deletion of my

16 client's devices, and, you know, as we discussed briefly here,

17 that's unnecessary. My client is -- you know, simply requiring

18 my client not to disclose such information achieves the same end,

19 without requiring her to be without her phone for an extended

20 period of time. I would have difficulty contacting her while

21 that would happen. It would not provide any additional

22 protections to plaintiff than are already in place here.

23 For trade secrets, Mr. James covered a few specifics when you

24 asked him. He identified the and some strategic

25 plan. Now, regarding the , my client testified at

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1 deposition, it's not something she worked closely with. She saw

2 some e-mails, she was aware of it, she doesn't have information

3 about that. Even if she did, again, it's in the past. Any

4 information she sent out is done.

5 Same with the strategic plan. That's something that has

6 happened in the past. There's not been a showing that she will

7 use it or be able to use that knowledge going forward to harm

8 Getty.

9 We talked about the solicitation. And plaintiff has made

10 some allegations based on, you know, some documents, the

11 declaration of this Craig Peters. Again, you have seen no live

12 testimony from this. It's relying on these documents, just

13 showing the documents. They didn't ask my client about the

14 documents. They didn't show her any documents. These are

15 e-mails she sends with -- or she sends things, perhaps you see,

16 quickly, but exactly, you know, to interpret these documents

17 simply by presenting them to the Court and then arguing that they

18 mean certain things is, I think, not s sufficient showing.

19 Other than that, Your Honor, you know, I just want to

20 emphasize again, what they're seeking here is that my client very

21 potentially could never work again. She has family obligations.

22 They simply say that, oh, she can find different clients. But as

23 we have discussed about the industry and as you have seen today,

24 that's not an option, that's not the sort of work that my client

25 worked into. If this is granted, she simply would not be able to

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1 work again.

2 I have nothing further, Your Honor, unless you have any

3 questions of me.

4 THE COURT: No additional questions, counsel.

5 MR. SCHMIDT: Thank you, Your Honor.

6 THE COURT: Counsel, any rebuttal?

7 MR. JAMES: Yes, Your Honor.

8 Obviously, we're in the process of digesting the information

9 and do not have a complete index or digest of all the

10 information. We would love to present that to the Court. We

11 apologize for the volume of information we did provide attached

12 to Mr. Peters' declaration.

13 We also have evidence, Your Honor, that since the TRO was

14 entered, Ms. Motamedi made a number of calls on November 16th.

15 She has contacted a high-level Getty employee on January 6th via

16 phone out of the blue. The context of the call is, at least from

17 my client's perspective, an attempt to recruit him, because there

18 had been some prior communications, I understand. She contacted

19 another individual, who there's no reason that we can think of, a

20 personal reason, for her to have contacted that person over the

21 holidays. Again, the understanding of my client was that that

22 call was to try and recruit that person.

23 THE COURT: Counsel, is that anything more than just

24 rank speculation, in terms of why the call was made? You are

25 talking about the holidays, and people oftentimes call friends

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1 and past associates that they haven't talked to for a while. How

2 do you leap to the conclusion that this was for some improper

3 purpose?

4 MR. JAMES: It's not -- I'm not at liberty to disclose

5 the confidential aspect of the e-mail at this point, but the

6 e-mail itself suggests that the recipient said this was an

7 out-of-the-blue call, there was nothing personal about it, and

8 the understanding was that this person was going to be

9 potentially recruited to SilverHub.

10 I'm also handed information here that based on the call log

11 that we have reviewed, there was 61 calls to photographers since

12 the lawsuit was filed. And these are persons that would

13 otherwise be persons that she should not be having contact with

14 if she was going to be abiding by her duty of loyalty.

15 There is a case, Your Honor, that is cited in our materials.

16 It's the Blackbird case. I believe it's cited on page 4 or 5.

17 Bear with me a moment. My screen closed, Your Honor. I don't

18 want to waste the Court's time. There is a case, it's a U.S.

19 District Court case, with a Lexis cite, and I believe it's on

20 page 5 of our reply. The case name is Blackbird. And the

21 parenthetical is that the court in that case imposed an ongoing

22 injunction based on the breach of the duty of loyalty of the

23 former employee because there was no reason to allow that person

24 to continue to cause harm, given the overwhelming evidence of the

25 breach of duty of loyalty. That provided the ongoing injunctive

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1 relief.

2 Ms. Motamedi forwarded ten or more contracts that she

3 negotiated and that she signed off on that include pricing

4 information that is not public information. That information was

5 forwarded to her home e-mail addresses, and we believe was

6 forwarded on to Mr. Evans-Lombe as well. That's not information

7 that you can know the identity of a customer and then simply, you

8 know, make a cold call. That's insider information. That is a

9 contract that she specifically negotiated, and it's a contract to

10 provide Getty Images with exclusive access so that they can go to

11 events, have exclusive access, and get these photographs. She

12 knows the terms of those deals. Passing that along allows her to

13 undermine Getty Images in future negotiations, for her to

14 contract for a better deal with those persons. This is the type

15 of information she forwarded. And to simply say it's in the

16 past, it's no big deal, is to, respectfully, just put a gloss on

17 it, and it's not going to cure the egregious, egregious amount of

18 information that's been forwarded out there, both to her home and

19 to Mr. Evans-Lombe.

20 Your Honor, what we would ask in terms of her phones, her

21 contacts, all of that information, is that she have the burden,

22 because she's the one who was engaged in this egregious breach,

23 of identifying those contacts that she claims are personal, those

24 items that she claims are personal. Photographs of her family or

25 her pets, clearly personal. Documents related to SilverHub,

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1 those aren't necessarily personal, and I would say she shouldn't

2 be allowed to just retain them, but maybe that information should

3 be given to her counsel so that she no longer has access to it.

4 But we believe that the devices could be imaged within 24 to

5 48 hours, depending on the new devices that may be provided,

6 because we believe the first time it was done in 24 hours.

7 She should also be able to provide a list of those personal

8 contacts to the expert at that time so that those contacts can be

9 retained on the device. And she should also be able to, at least

10 through her counsel, be able to identify those documents or other

11 items, like photographs, that she claims are personal, so that

12 her counsel can notify the expert of those personal items.

13 Otherwise, the appropriate way to handle this, we submit, is to

14 have the devices submitted, imaged, wiped, and then returned to

15 Ms. Motamedi.

16 THE COURT: Okay.

17 MR. JAMES: Thank you, Your Honor.

18 THE COURT: Let me ask you a question, counsel.

19 MR. JAMES: Yes.

20 THE COURT: And I'm not getting into trying to mediate

21 this case or resolve your differences by way of negotiation, but

22 one of the tools that is available to the Court is to order the

23 parties to mediation, pending any motions or deadlines, so that

24 the parties can expedite the resolution of this case.

25 Now, when I had the parties on a telephone conference about a

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1 week-plus ago, the parties appeared to be very civil, very

2 amenable to working with each other in trying to resolve your

3 differences, and you essentially came up with an agreed TRO which

4 has seemed to work for at least the last several days. One of

5 the reasons that the Court always looks at mediation at the

6 beginning of litigation is to let parties know that litigation is

7 costly and it can be time consuming. And although you have a

8 current trial date now, that doesn't necessarily mean that,

9 because of what you learn, that trial date would stay in place.

10 Counsel for the defendant has already expressed some concerns

11 about the delay of her being able to go on with her life. She's

12 also expressed concerns about the impact on her life, the care of

13 her mother, her ability to make a living, and other

14 representations to this Court.

15 So my question is, is there any consideration or willingness,

16 from the plaintiff's perspective, to engage in mediation at this

17 point in time to try and resolve the concerns so that the parties

18 have their own hand in crafting a resolution? Without question,

19 the Court is going to craft a determination on the motions made,

20 but I'm also looking down the road, to give the parties a chance

21 to have your hands craft your resolution that will get Getty's

22 concerns addressed and get the defendant's concerns addressed.

23 You don't have to give a long answer, counsel, but is that

24 something that you might be interested in, from your client's

25 perspective?

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1 MR. JAMES: I always recommend to my clients that they

2 consider mediation. We have not had that discussion, Your Honor.

3 THE COURT: All right.

4 Counsel for the defense, is that a consideration?

5 MR. SCHMIDT: I think that would be very reasonable,

6 Your Honor. We have already made a settlement offer to

7 plaintiff. He told us --

8 THE COURT: I'm not looking for settlement discussions,

9 counsel. That's improper for me to even know about that.

10 MR. SCHMIDT: I'm sorry. My point was simply, I think

11 that would be very productive, Your Honor.

12 THE COURT: All right. Thank you, counsel.

13 MR. JAMES: Thank you, Your Honor.

14 Oh, Your Honor, one -- I neglected to mention, there is one

15 other key date that's affecting things for my client, and that is

16 Mr. Evans-Lombe is under a deadline of January 24th to respond to

17 the undertakings that he has committed to in the UK, and that

18 information may shed a lot of light on what information has been

19 shared and the ongoing relationship. And we simply do not have

20 that information at this time. I just wanted the Court to be

21 aware of that. Thank you.

22 THE COURT: All right. Thank you, counsel.

23 All right. Counsel, this is what the Court is going to do.

24 The Court, first of all, will have a final order that will be

25 issued before the close of business tomorrow. If we get to it

Nickoline Drury - RMR, CRR - Official Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
Case 2:16-cv-01892-RAJ Document 43-1 Filed 02/16/17 Page 78 of 79
January 12, 2017 - 77

1 today, we will have it for your availability. But I will tell

2 the parties, so that the temporary restraining order doesn't

3 expire without anything else in place, that I'm satisfied, based

4 upon the record that's been presented to this Court, that counsel

5 has met the requirements and expectations for a preliminary

6 injunction to carry over the conditions of the temporary

7 restraining order.

8 Now, when I say "carry over the conditions," not every single

9 one of the conditions that the Court previously authorized in the

10 TRO or the expansive nature that it referenced in the TRO are

11 going to carry over to the order on preliminary injunction. Some

12 of them will; some of them won't.

13 But I want the parties to know that, effective today, there

14 is a preliminary injunction in place, the plaintiff has met their

15 burden, but the specifics will be detailed in an order, just as

16 the TRO, and you will have that tomorrow. So I don't want you to

17 think that the defendant is essentially free of any obligations

18 or requirements to this Court. Those conditions as existed

19 previously are in place. The modified conditions will be

20 provided to the parties tomorrow. So there's no gap in terms of

21 controls or restraining limitations upon the defendant.

22 So with that, we will be in recess. Thank you.

23 (Proceedings adjourned.)

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Nickoline Drury - RMR, CRR - Official Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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January 12, 2017 - 78

1 C E R T I F I C A T E

3 I, Nickoline M. Drury, RMR, CRR, Court Reporter for the

4 United States District Court in the Western District of

5 Washington at Seattle, do certify that the foregoing pages are a

6 true and accurate transcription of the proceedings to the best of

7 my ability.

10 /s/ Nickoline Drury

11 Nickoline Drury

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Nickoline Drury - RMR, CRR - Official Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101