State Court of Fulton
County
**E-FILED**
16EV004768
5/21/2019
11:09
PM
LeNora
Ponzo,
Clerk
Civil
Division
IN THE
STATE
COURT
OF FULTON
COUNTY
STATE
OF
GEORGIA
TERRY
HODGES,
an
Individual,
)
)
Plaintiff,
)
Civil
Action
N0.
16EV004768
)
VS.
)
)
GORDON REES SCULLY MANSUKHANI
LLP,
)
et
al.
)
MOTION TO
STRIKE
ANSWER
AND
ENTER
DEFAULT
COMES
NOW,
Plaintiff
t0
the
above-styled
civil
action,
and
files
this
motion
to
strike
Defendants’
Answer
and
enter
default
judgment
pursuant
to
O.C.G.A.
§
9-1
1-37(2)(C).
This
sanction is appropriate for the Defendants
ongoing,
defiance 0f the
Court’s
discovery
Orders and
spoliation
0f
evidence
in a
manner
that
has
been
clearly
proved
during
the
nearly
three
(3)
years
of this
case to be
wilful,
in
bad
faith,
and
in
conscious
disregard
0f
the
discovery
process and this
Court’s
Orders.
For
years,
Plaintiff
has
demanded
the
text
messages
that
the
individual Defendants
and
their
law
partners
exchanged
in
2015
concerning,
inter
alia,
(1)
their
now-admitted
failure t0 detect an
actual,
non-consentable
conflict 0f interest between the Plaintiff and
Netflix,
and
(2)
Gordon
&
Rees
indefensible
failure
to
Withdraw
from
the
representation
mandatorily
required
by
both
the
California
(3-700(B)(2)
&
3-310)
and Georgia
(1
.7)
Rules of Professional Conduct.
In
2017,
the
Court
ordered
all
text
messages
from
parties
and
partners
produced.
In
response,
Defendants’
prior
counsel
wrote
t0
the
Court
and
declared that
all
parties and
partners had searched their personal
devices,
with n0 results.
However,
When
placed
under
oath
during
depositions
in
San
Diego
in
March
2019,
three
(3)
Defendants
denied
having
made
any
such
search—more
than
a
year
after
telling
the
Court
the opposite. Two of the Defendants stated
openly
that
they
had deleted all text
messages
from
their
personal
devices.
The
Court
will
recall
that
for
more than
a
year
between
2017
and
2018,
these
same
Defendants hid responsive emails under a farcical claim 0f
“privilege”
that the
Court
found
(in
two Orders
dated
September
11
&
12,
2018)
t0
be
entirely
unfounded:
the
emails
sought
only
t0
protect
the
business
relationship
with Netflix
and did not
even
purport t0 seek nor render legal advice.
Indeed,
Defendant Mansukhani
blithely
conceded
at
deposition
that
none of
the
claims of
“privilege”
ever
had
a
basis.
With
the
latest
revelations
concerning
the
fact that
it
never
even
looked
for
the
destroyed
text
messages,
it is clear that
Gordon
&
Rees has never taken its
discovery
obligations
seriously.
For
the
reasons
set
forth
herein,
Plaintiff
respectfully
moves
t0
strike
Defendants’
answer as an appropriate sanction for
Defendants’
ongoing and willful refusals t0
comply
With
discovery
Orders,
and
for
their
sworn-to
spoliation
0f
evidence
through the
deletion
0f
text
messages.
Factual
Background
A. In Response t0 Extended Briefing 0f all
Discovery
Disputes,
The
Court
Ordered
All Text Messages from
Named
Parties
and
Litigation
Partners
t0
be
Produced
From
September
to November of
2017,
Plaintiff engaged in a protracted
back-and-
forth
with
Defendants”
predecessor
counsel,
in
Which
both
sides
briefed
their
contentions
concerning
the
inadequacy
of
the
other’s
document
production.
At
one
point,
both
Plaintiff’s
and
Defendant
Mulrain’s
depositions
were
scheduled,
only
t0
have
Gordon
&
Rees’
predecessor
counsel
“cancel”
both
the
day
before,
after
both
Hodges
and
his
counsel had traveled to Atlanta. During that
briefing,
for
example,
Plaintiff briefed the
topic of
“Defendants
Should
be
Compelled
t0
Produce
Documents
Concerning
The
Reaction
Within
the
Firm
to
the
Conflict’s
Discovery,”
and
observed
that
“not
a
single
text message or other form 0f
SMS
message or
non-email
electronic message has been
produced,
despite
being
expressly
called
for.”
(EX.
A
at
4,
5
n.8)
The
Court
wisely
convened
a
Rule Nisi
conference
on
November
3,
2017
to
address all 0f the
back-and-forth
discovery
complaints.
There,
the
Court
led the
following
discussion
concerning
the
Defendants’
obligations to
produce
text
messages:
THE
COURT:
MR.
NEEL:
A11 right.
So
let me ask
you,
Mr.
Neel,
what d0
you
think the
appropriate scope should be? Because I
don't
know that
we're
even
remotely
relevant
if
we
got
first
year
associates
Who
never
had
any
other
involvement
in
any
0f
these
matters,
hearing
something
0r
sending an
e-mail
about
did
you
hear
what's
happened
with
the
conflict
and
with
Netflix?
I
don't
know
that
means
anything
in
the
case.
So,
What's
the
boundary?
Well,
I
think
first
year
associates
--
I
respectfully
disagree
t0
the
extent
that
any
of
the
associates
knew
that
withdrawal
was
the
only
permissible response.
Secondly,
if
you're
going t0 limit it t0 the
partners,
that seems permissible because the partners are going
t0 bear
the
liability
for Mr.
Sybert's
actions
and the
other
defendant's
actions,
s0
they're
the
ones
we
would
have
an
interest
in
talking
about,
but
they
did not
obj ect
under
overbroad.
They
obj ected
0n
relevance.
So
they're
not
saying
it's
too
hard
t0 do
or
it's
too cumbersome.
They're
just
saying
it's
not relevant.
EX.
B
(at
39:13-40:7
(emphasis
added)).
The
Court
then
issued
its
Order
from
the
bench:
THE
COURT:
I
think
what
we're
talking
about
is
we're
talking
about
the
conflict,
not
just about
Netflix
generally
or
about
Hodges
generally,
but about
the
conflict issue that came up and how the conflict issue was resolved.
And I think a litigation partner is reasonable.
And,
again,
I think
we're
in
limited
time
frame.
We're
not
asking
you
to search
for
years,
but
we
got
April
t0 sometime
shortly
after
September
of
2015.
And
I
agree that
other electronic
communications,
e—mail,
Facebook,
text,
those are discoverable.
)
(Id.
at
40:15-24
(emphasis
added)).
B.
Defendants’
Prior
Counsel
Declares
t0
the
Court
and
that
All
Gordon
&
Rees Partners
Searched
Personal for Text Messages and
None Were
Found
Two
months
later,
in
a
January
4,
2018
letter
t0
the
Court,
Defendants’
former
lawyer
wrote as follows:
“No
named Defendant and n0 partner of the Law Firm Defendant
has
any
texts 0r social media post which relates in
any
manner t0
Plaintiff.”
Defendants
adhered
to
the
Court’s
directive
and
asked
every
law
firm
partner
and
every
named
defendant
t0
check
personal
devices
for
messages
that were
about
Terry
Hodges.
There
simply
were
n0
personal
e-mails,
chats,
text
messages,
Facebook Messenger
messages,
WhatsApp
messages,
Google
IM
messages,
WeChat
messages,
other form of short
message
system,
0r
“chat”
documents
about
him.
EX.
C
(Letter
from
Kathryn
Whitlock,
Esq.
to Court dated
Jan.
4,
2018,
at p. 3
(emphasis
added».
C.
At
Deposition,
Defendants
Deny
Ever
Searching
their
Devices,
and
Two
Defendants
Reveal
that
thev
Deleted
All
Texts
from
their
Devices
Sixty
days
ago,
Defendants
Sybert,
Mansukhani,
and
Flaherty
were deposed in
San
Diego.
None
0f
them
had
searched
their
devices
for
any
text
messages.
Sybert
testified
(EX.
D):
Q
Did
you
search
your
phone
for
records
in
response t0 the request for
you
t0 gather
documents?
A
No.
Flaherty
testified
(EX.
E):
Q
Did
you
search
your
personal
devices
for
text
messages?
A
N0.
Mansukhani testified
(EX.
F):
Q
Did
you
search
your
personal devices for text
messages?
A I
can't
recall.
Mansukhani and
Sybert
went on t0 state that
they
have deleted
any
text messages from
their
devices.
Mansukhani:
Q:
well,
let
me
ask
you
this:
Did
you
search
your
text
messages
for
anything
responsive
t0 the doc requests in this action?
A: I
don't
recall,
but
there's
zero chance I would
have
any
text
message,
that
I
delete
mine
always.
(Ex.Fat117:21—
118:1)
Sybert:
Q
D0
you
recall
deleting
any
text
messages
off
your
phone?
A I
always
delete
all
my
text
messages
after
I
read
them.
(Ex.
D at 16:19
—
22).
Argument
A. The Answer should be
Stricken
under
O.C.G.A.
9-11-37
Section
9-1
1-37(2)
0f
the
O.C.G.A.
provides
in
pertinent
part:
(2)
Sanctions
by
court
in
which
action
is pending.
If
a
party
or an
officer,
director,
0r
managing
agent
0f
a
party
0r
a
person
designated
under paragraph
(6)
of subsection
(b)
of
Code
Section
9-1
1-30
or
subsection
(a)
0f
Code
Section
9-1
1-31
t0
testify
0n behalf of a
party
fails
to
obey
an
order
to
provide
0r
permit
discovery,
including
an
order
made
under
subsection
(a)
of
this
Code
section
0r
Code
Section
9-1
1-35,
the
court
in
which
the action
is
pending
may
make
such
orders in regard to the failure as are just
and,
among
others,
the
following:
***
(C)
An
order
striking
out
pleadings
0r
parts
thereof,
0r
staying
further proceedings until the order is
obeyed,
or dismissing the action
or proceeding or
any
part
thereof,
0r rendering a judgment
by
default
against
the
disobedient
party.
..
In
Didio
v.
Chess,
218
Ga.App.
550,
551,
462
S.E.2d 450
(1995),
the
Court
oprpeals
set
forth
the
standard
for
striking
an
Answer:
The
drastic
sanctions
[found
in
OCGA
§
9-1
1-37(b)(2)(C)
]
cannot
be
invoked
except
in
the
most
flagrant
cases—-where
the
failure
is
wilful,
in
bad
faith
0r
in
conscious
disregard
of an
order.
There
must
be a
conscious
or
intentional
failure
to
act,
as
distinguished
from
an
accidental or
involuntary
non-compliance."
(Citation
and punctuation
omitted.)
The
Didio
trial
court’s
ruling
was
affirmed
based
not
only
0n
the
“failure
t0
comply
with
a
discovery
order the trial court had
issued,”
but also based on the
existence
0r nonexistence of wilfulness
not
only
in
the
context
of
the
time
period
prescribed
in
the
order
compelling
answers,
but
in
the
context
of
the
entire
period
beginning
with
service
of
interrogatories
and
ending
with
service
0f
answers.
Events
transpiring
during
this
entire time period are probative of Whether appellant acted With
'conscious
indifference t0 the consequences of failure to
comply'
With
the
order
compelling
answers.
Swindell v.
Swindell,
[233
Ga.
854,
857(3)
(213
S.E.2d
697)
(1975)].
Id.
at
46;
see also
Rucker
v.
Blakey,
157
Ga.
App.
615,
278 S.E.2d 158
(Ga.
Ct.
App.
1981)
(affirming
striking
0f Answer
for
a
willful
and
bad—faith
failure
t0
respond
“because
it
was
inconvenient”)
Gordon
&
Rees’
demonstrable
willfulness
is
evident
from
its
long-running
pattern
of
hiding,
obstructing,
and now
destroying
evidence.
That is more than
sufficient
t0 support
the
sanction of striking the Answer and entering
default,
because
Georgia
courts
uniformly
agree
that
such
a
sanction
for
discovery
non-compliance
is
right
and
appropriate
even without
demonstrable
willfulness.
Howard
v.
City
ofColumbus,
239
GaApp.
399,
416,
521
S.E.2d
51
(Ga.
Act. App.
1999)
("A
finding 0f actual wilfulness is not required for the imposition of
sanctions
pursuant
t0
§
9-1
1-37(b)(2)(C);
"only
a
conscious
or
intentional
act
in
disregarding
the
duty
to
make
discovery
is
necessary
for imposing
the
sanction
of
default")
In
Potter
v.
Am.
Medcare
Corp,
225
Ga.App.
343,
346-47,
484
S.E.2d
43
(Ga.
Ct.
App.
1997),
the
Court
of
Appeals upheld
the
striking
0f
a
pleading
because
....there
was
evidence
t0
support
the
trial
court's
finding
that
appellant
wilfully
and
consciously
disregarded
the
discovery
order.
At
the
time 0f
the
July
1,
1996
hearing
0n
appellees'
motion
to
dismiss,
appellant
still
had not
fully
complied
with
the
trial
court's
order requiring a response to
discovery
requests.
By
that
time,
more than 13 months had elapsed from the time
appellant's
responses were
originally
due,
the
last
extension
of
time
had
expired
May
3
1
,
1995,
and
almost
two
months
had
elapsed
since
full
and
complete
supplemental
responses were
due
under
the
trial
court's
order.
Appellant
had
been
on
notice
0f
the
deficiencies
in
his supplemental
responses,
if not from the inception 0f his
supplemental
answers,
at least from
June
14,
1996,
When the
appellees
filed
a
second
supplement t0
their
motion
to
dismiss
setting
forth
such
deficiencies,
Which
was served
0n
appellant
along with
a
letter
requesting
full
and
complete
responses.
During
the
17
days
between
the
time
appellees
filed
their
second
supplement
to
their
motion
to
dismiss
and the
date
of
the
hearing,
appellant made n0 effort to correct
any
of the deficiencies. As the
trial court
noted,
it was
only
at the
hearing,
after it was apparent
that
the
trial
court
was
extremely
displeased
With
appellant's
lack
of
response
t0
her
order
that
appellant's
counsel
offered
t0
try
and
contact
her
client
and
once
again
attempt
t0
fully
respond
to
the
ordered
discovery.
Appellant's
failure
t0
sufficiently
and
expediently
respond was a
"conscious
0r intentional failure t0
act,
as distinguished from an accidental or
involuntary
non-
compliance."
(Citation
and punctuation
omitted.)
Didio v.
Chess,
supra
at
551,
462
S.E.2d
450.
By
comparison
t0
Potter,
Gordon
&
Rees
has
proven
over
several
years
that
it
does
not
take
its
discovery
obligations
seriously.
Ms.
Whitlock’s
letter
above
is
categorical:
all
partners
and
parties
searched
their
personal
devices.
But
equally
categorical
is
the San
Diego
deposition
testimony:
none
0fthem
searched—save
that named partner Mansukhani
“can’t
recall,”
and in
any
event he long ago
deleted
Whatever
he
had
(as
did
Sybert).
That duplicitousness is
un—surprising,
considering
Gordon
&
Rees’
years—long
refusal to
hand-over
so-called
“privileged”
emails
that
the
Court found
lacked
even
the
slightest
indicia
of
privilege: no legal
advice
was
sought,
and
none
rendered.
Astonishingly,
after
all
of
that
resistance and
forced-delay,
named partner Mansukhani
blithely
admitted at deposition that there
had
never
been
any
predicate
basis
for the
“privilege”
claims on
those
emails:
Right. Are
you
aware that
you
claim
privilege over this document?
I
don't
know.
Okay.
Who
in
this
exchange
is
the
lawyer
and
Who's
the
client?
I
mean,
Dion's
our
managing
partner and
I'm
a
named partner. But
there's
n0
attorney/client
relationship between us two.
Q
Okay.
And
you're
not
seeking
any
--
is
there
anything
in
here
that
states
t0
you
that
you're
seeking legal
advice
--
A
Not
0n
--
Q
--
that legal advice was sought 0r rendered?
A Not on this document that
I'm
seeing.
>O>O
EX.
F
(60:4-17;
emphasis
added).
03>
O>
Looking at that
exhibit,
this is again a
document that
you've
asserted privilege over
in
this
matter.
Exhibit
9?
Yes.
Can
you
identify
for
me on
that
document
who's
serving
as
attorney
and
who's
serving as the client?
N0.
Can
you
identify
any
legal
advice
being
sought
0r
rendered?
Not
0n
the
document,
n0.
(Id.
64:17
-65:2;
emphasis
added)
Q
A
Q
A
In that document who
--
Who is the
attorney
and
Who
is
the client
in
that
document
for
purposes
of
your
privilege
assertion?
There's
n0
attorney-client
privilege.
What
is
the
legal
advice
being
sought
or
rendered in that document?
There's
n0 legal advice being sought or
rendered,
in
my
opinion.
(Id.
at 71 : 1
1-18;
emphasis
added).
Q
Similar
question
t0
the
other
exhibits.
Who's
the
--
who's
the
attorney
and
who's
the
client
in
these
exchanges
with
respect
to
your
assertion 0f
attomey-client
privilege?
None.
There's
n0 one.
And
is
there
any
legal
advice
being
rendered
0r
sought
in
this
exhibit?
N0.
(Id.
at
89224-9024;
emphasis
added).
Q...
A
Q
In
14,
this is
a
document over
which
you
asserted privilege.
Who
is the
attorney
and
who is the client in that
e-mail?
There's
no
privilege
in that
e-mail.
Okay.
And
do
you
see
any
effort
to
seek
and/or
render legal
advice?
N0.
Q
Same
questions,
just for
brevity,
with regard
to 15:
Basically
the same answers?
N0
attorney,
no
client and
no privilege?
A
Correct.
(Id.
at
100221-10126;
emphasis
added).
Q
this
was
held
back
as
privileged.
Same
questions:
Who's
the
attorney
and
who's
the client?
A
No.
There's
n0
privilege
here.
Q
And
how
about
any
attempt
t0 render 0r
receive
legal
advice?
A
N0.
(Id.
at
103:
4-10;
emphasis
added).
At
every
step
in
this
October
2016
case,
Gordon
&
Rees
has
made a
mockery
of the
discovery
process.
Now,
at
last,
Mansukhani was forced to
testify
under
oath,
and did
not
even
attempt
to
justify
the
claim
0f
privilege
that
Gordon
&
Rees
used
t0
delay
the matter
for
more than
a
year—and
continued
t0
cling
to
even
after
the
Court
Ordered
rej
ected
the claim and compelled production.
Those
same
examinations
under
oath
in
San
Diego
revealed that
Gordon
&
Rees
never
even looked for the text
messages—despite
telling the
Court
in writing that
every
partner had
looked
at
his
0r
her
personal
device
and
found none.
Gordon
&
Rees
is
insufficiently
mindful
of
this
Court
and
its
obligations
here.
An
on-
the-record
Order
did not
scare
it. Two Orders
compelling
production
0f
the
withheld
“privileged”
emails did not move it t0 act.
Gordon
&
Rees
has
proven
over
several
years
that
it
does
not
take
its
discovery
obligations
seriously.
Attorney
Whitlock’s
statement in her
January
4,
2018 Letter is
10
categorical:
all
Gordon
&
Rees
partners
and
parties
searched
their
personal
devices
and
came
up
With
nothing.
Categorical,
too,
is
the
deposition
testimony
0f
all
three
San
Diego
Defendants:
n0 one
searched,
save
that
named
partner
Mansukhani
“can’t
recall”
if
he
did—and
in
any
event
he
long
ago deleted Whatever he had
(as
did
Sybert).
That duplicitousness is
un—surprising,
considering
Gordon
&
Rees’
years—long
refusal to
hand-over
so-called
“privileged”
emails
that
the
Court found
lacked
even
the
slightest
indicia
of
privilege: no legal
advice
was
sought,
and
none
rendered.
Even
after
the
Court
ordered
Gordon
&
Rees to produce
them,
Gordon
&
Rees refused for weeks 0n
end,
until
finally
a
Contempt
motion
had
t0
be
threatened.
The
Court
has ample reason t0 strike the Answer under
O.C.G.A.
§
9-1
1-37.
Respectfully,
it
should
do
so,
and
bring this
long-running
pattern
0f gamesmanship to
a
just
end.
B.
The
Answer
Should
Be Stricken
as
Sanction
for
Spoliation
A
trial
court
may
strike an
answer
or
enter
judgment
for
the defendant
where
a
party
failed t0 preserve important evidence after contemplating litigation.
See,
e.g.
,
Delphi
Communications
Inc.
v.
Advanced
Computing
Technologies
Ina,
336 Ga.
App.
435
(2016),
336
Ga.
App.
435
(trial
court
properly
struck
defendant’s
answer
for
failing
to
preserve
computer
hard
drives);
Howard v.
Alegria,
321
Ga.
App. 178
(2013)
(trial
court
properly
struck
defendant’s
answer
for
failing
t0
preserve
a
vehicle’s
black-box);
Flury
v.
Daimler
Chrysler,
427
F.3d
939
(1
1th
Cir.
2005)
(applying
Georgia law and
holding
district
court
properly
dismissed
case because plaintiff failed t0 preserve his
vehicle).
11
“Spoliation
refers to
the
destruction,
failure
to
preserve,
or
significant
alteration
of
evidence that
is
necessary
to
pending
0r
contemplated
litigation.”
Bridgestone/Firestone
N.
Am.
Tire,
LLC
v.
Campbell
Nissan
N.
Am,
258
Ga.
App.
767,
769
(2002).
Georgia
law allows a
finding
of
spoliation
if
the
loss
of
the
evidence
occurs
at
a
time
When
there
is
“contemplated
or
pending
litigation.”
Bouve
&
Mohr,
274
Ga.
App.
758,
762
(2005).
The
party
bringing
forth
a
spoliation allegation
has
the
initial
burden
t0
produce
evidence
0f
spoliation.
See
Flores
v.
Exprezit!
Stores
98-Georgia
LLC,
3
14
Ga.
App.
570,
574
(2012).
Proof of spoliation raises a rebuttable presumption against the spoliator that the evidence favored
the
spoliator’s
opponent.
R
&
R
Insulation
Servs.,
Inc.
v.
Royal
Indemnity
C0.,
307 Ga.
App.
419,
436
(2010).
Factors
that
Georgia
courts
consider
when
fashioning
an
appropriate
spoliation
remedy,
include,
but are not limited t0 the following:
(1)
whether
the
[party
seeking
sanctions]
was
prejudiced
as a
result
of
the
destruction
of
evidence;
(2)
Whether
the
prejudice
could
be
cured;
(3)
the
practical
importance
0f
the
evidence;
(4)
whether
the
[party
who
destroyed
the
evidence]
acted
in
good
0r
bad
faith;
and
(5)
potential
for
abuse.
R.A.
Siege]
Ca,
246
Ga.
App. at 180
(quoting
Chapman,
220
Ga.
App. at
542)
(brackets
in
original)
(internal
citations
omitted).
An
analysis
of
each
of
these
factors
leads
to
the
natural
conclusion
that
Defendants’
Answer
should
be
struck.
Courts
find
spoliation
Where
a
party
is
instructed
to
preserve
evidence
When
a
party
fails
to
preserve
evidence
after
contemplating
litigation.
See, e.g.,
Delphi
(spoliation
where
former
employees
failed to preserve hard drives after lawsuit was
filed);
Kitchens v.
Brusman,
303
Ga.
12
App.
703
(2010)
(trial
court
abused
its
discretion
in
not
finding
spoliation
Where defendants
failed
t0
preserve
evidence
after
contemplating
litigation);
Wal—Mart
Store,
Inc.
v.
Lee,
290
Ga.
App. 541
(2008)
(trial
court
properly
found
Wal-Mart
failed to preserve Videotape evidence after
contemplating
litigation);
AMLI
Residential
Properties,
Inc.
v.
Georgia
Power
C0.,
293
Ga.
App.
358
(2008)
(trial
court
properly
found
defendant
apartment
complex
spoliated
evidence);
Bouve,
274
Ga.
Ap. 758
(same).
In
Howard,
a
plaintiff
sued a
truck
driver
and its
owner after
a
crash. Despite
anticipating
litigation,
the defendants
destroyed
the
truck’s
black-boxes
and made repairs t0 the vehicle after
the
crash. Id.
at 184.
The
trial
court found
the
destroyed
information
was
“the
highest
and
best
evidence
of
vehicle
defects,
system
malfunctions,
and
brake
problems
and
0f
what
actually
occurred
immediately
prior to and during the
[collision],”
and
accordingly,
plaintiff had been
prejudiced.
Id.
at
184-85.
The
court
struck
defendant’s
answer.
Id.
at
178.
The
appeals
court
affirmed.
Id.
at
185.
In
Delphi,
the
plaintiff
accused
Delphi
of
improperly
soliciting
customers
and
copying
software products Without consent.
Delphi,
336
Ga.
App. at 435. Delphi
presumably
received
notice of
the
lawsuit
upon
service
of
the
complaint,
but
then
did
not
save
“mirror
images”
of
the
computer
hard
drives
in
the
state
they
were
in
as
0f
the
date
Delphi
was
served.
Id.
The
trial
court found Delphi had a
duty
t0 preserve the hard drives and its failure to d0 so harmed the
plaintiff. Id.
Specifically,
the trial court found
“a
meaningful link between
[plaintiff’
s
claims]
and
the
spoliation
existed,
as a
mirror
image 0f
[Delphi’s]
hard
drives
from
the
time
frame
of
the
filing
of
the
complaint
could have
revealed evidence
relevant
t0
the
critical
issue
of
whether
the
software 0n
[Delphi’s]
computers was copied from
[Plaintiff’
s]
computers.”
Id. at
438-39.
As a
13
result,
the
trial
court
struck
Delphi’s
answer.
Id.
at
439.
The
appeals
court
agreed
With
the
trial
court’s
analysis
and
decision
t0
strike
Delphi’s
answer.
Id.
Striking
Gordon
&
Rees’
answer
is appropriate here
because
named
partner
Mansukhani
and partner
Sybert
admit
to
destroying
evidence
at a
time
post-discovery
of
the
conflict,
when
they
indubitably
had t0 anticipate litigation. It is
particularly
egregious because the texts
they
deleted
constituted
part
of
Hodges’
Client
File.
Those
texts—which
are
indubitably
both
“communications”
and
items
“reasonably
necessary
t0
the
client’s
representation.”
Hodges
actually
owns
(0r
owned)
them as
“personal
papers and
property”
under Formal
California
Bar
Opinions.
See, e.g.,
Rule
3-700(D)
0f
the
Rules
of Professional
Conduct
0f
the
State
Bar
of
California;
State
Bar
of
California
Formal
Op. No.
2007-174;
State
Bar
of
California
Formal
Op.
N0.
1992-127.
Hodges is
extremely
prejudiced
by
the destruction because the texts are the crown jewels
of
evidence
0f
intent
and
willfulness
in
Gordon
&
Rees’
treatment
of
their
client.
If
the
last
few
years
in
American
politics
have
taught
us
anything,
it is
that
in
mid-2015,
otherwise
highly
intelligent people would
say
things in text
messages—even
0n
company
devices—that
they
would
never
say
in
email.
Sybert
and
Mansukhani
(and
by
proxy
Gordon
&
Rees)
have
deprived
Hodges
0f
the
best
evidence
of
what
they
and
their
partners
were
thinking.
Furthermore,
Gordon&
Rees’
bad
faith
is
palpable
and,
at
this
point,
beyond
dispute.
From
the
moment
they
discovered
the
conflict,
Hodges
went
from
the
beneficiary
of
Defendants’
fiduciary
duties to a problem t0 be avoided. Even before the
“privilege”
nonsense outlined
above,
Gordon
&
Rees
had
Withheld
those
emails
and
their
text
messages
from
Hodges
When
producing
his
Client
File
in
summer
2016,
a1
in
rank
Violation
0f
the
California
Bar
Rules.
14
There
is no
jury
instruction
or
other
sanction
that
can provide
Plaintiff
fair
redress.
Under
this
reasoning,
the
Court
should
strike
Defendants’
Answer.
Indeed,
if
this
Court
does
not
strike
Defendants’
answer,
then
Gordon
&
Rees Will be rewarded for all of the misconduct it has
openly
engaged
in.
Respectfully,
the
Court
should
not
countenance
such
an
absurd
result.
Gordon
&
Rees
has
sought
to
thwart
discovery
at
every
turn.
If
there
is no
penalty,
it
will
succeed.
WHEREFORE,
Plaintiff
requests
this
Court
enter
an
Order
striking
Defendants’
Answer.
RESPECTFULLY
SUBMITTED
THIS
22d
DAY
OF
MAY,
2019.
Law
Office
of
Wallace
Neel,
P.C.
Atto
for
P
'
f/g(
/.
By'
Wallace
Neel
Admitted Pro Hac
Vice
43
West
43rd
Street,
Suite
65
New
York,
NY
10036-7424
(646)
524-6502
Local
Counsel:
Warren
R.
Hinds,
P.C.
By
Warren
R.
Hinds.,
Esq.
Crossville
Village
Office
Park
1303
Macy
Drive
Roswell,
GA
30076
(770)
993-1414
(tel)
(770)
993-4441
(fax)
15
IN THE
STATE
COURT
OF FULTON
COUNTY
STATE
OF
GEORGIA
TERRY
HODGES,
an
Individual,
)
)
Plaintiff,
)
Civil Action N0. 16EV004768
)
vs.
)
)
GORDON
REES
SCULLY
MANSUKHANI
LLP,
)
et
a1.
)
CERTIFICATE
OF
SERVICE
I
hereby
certify
that 0n
May
22,
2019,
a true and complete
copy
0f
PLAINITFF’S
MOTION
TO
STRIKE
ANSWER
AND
ENTER
DEFAULT
was served
Defendants
upon
all
counsel
in
this
action
by
electronic
filing
and
by
electronic
mail
to:
mlefl<[email protected]
Dated:
May
22,
20
1
9,
Law
Office
of
Wallace
Neel,
P.C.
Attorney
for Plaintiff
MW
Wallace
Neel
Admitted
Pro
Hac
Vice
43 West
43rd
Street,
Suite 65
New
York,
NY
10036-7424
(646)
524-6502
Local
Counsel:
Warren R.
Hinds,
P.C.
By
Warren R.
Hinds.,
Esq.
Crossville
Village
Office
Park
1303
Macy
Drive
Roswell,
GA
30076
(770)
993-1414
(tel)
(770)
993-4441
(fax)
lO
ll
12
l3
l4
15
l6
l7
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l9
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21
22
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IN THE
STATE
COURT
OF
FULTON
COUNTY
STATE
OF
GEORGIA
TERRY
HODGES,
PLAINTIFF,
VS.
CIVIL
ACTION
FILE
NO.
16EVOO4768
GORDON
REES
SCULLY
MANSUKHANI,
LLP,
ET.AL
DEFENDANTS.
vvvvvvvvvvv
EXPEDITE
MOTION
HEARING
BEFORE
THE
HONORABLE
ERIC
RICHARDSON,
JUDGE
FULTON
COUNTY
JUSTICE
CENTER
TOWER
—
COURTROOM
3C
FULTON
COUNTY
STATE
COURT,
ATLANTA,
GEORGIA
NOVEMBER
3,
2017
APPEARANCES
OF
COUNSEL:
FOR
THE
PLAINTIFF:
WALLACE
NEEL
ATTORNEY
AT LAW
FOR
THE
DEFENDANT:
KATHRYN
S.
WHITLOCK
ATTORNEYS
AT LAW
OCTAVIA
L.
WINFREY
CERTIFIED
COURT
REPORTER
FULTON
COUNTY
JUSTICE
CENTER
TOWER
ATLANTA,
GEORGIA
30303
770—873—5548
MOTION TO
STRIKE
ANSWER
EXHIBIT A
lO
ll
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l3
l4
15
l6
l7
l8
l9
20
21
22
23
24
25
THE
PEOPLE
——
AND THE
PEOPLE
WHO
ACTUALLY
WERE
DOING
WORK
FOR MR.
HODGES.
MS.
WHITLOCK:
THE
ONLY
PEOPLE
WHO
DID
WORK
FOR
MR.
HODGES
WERE
MR.
SYBERT,
MRS.
FLAHERTY
AND,
ARGUABLY,
MR.
MULRAIN.
NOBODY
ELSE
DID
WORK
FOR MR.
HODGES.
AND
MR.
SYBERT
IS
THE
DECISION—MAKER.
SO,
AGAIN,
HE'S
THE
ONE
THAT WHEN
SOMEBODY
SAID,
YOU
HAVE A
CONFLICT,
HE
DECIDED
THESE
ARE MY
OPTIONS.
AND
AS
I
SAID
AT THE
BEGINNING,
MR.
NEEL KEEP
SAYING,
YOU
DIDN'T
HAVE
IT.
YOU
DIDN'T
HAVE
IT.
YOU
DIDN'T
HAVE
IT.
THAT'S
THE
DECISION
THAT
HAS
TO
BE MADE
LATER.
THAT'S
NOT
MY
CALL
OR
HIS
CALL.
WE READ THE LAW
DIFFERENTLY.
THE
COURT:
ALL
RIGHT.
SO
LET ME
ASK
YOU,
MR.
NEEL,
WHAT
DO
YOU
THINK THE
APPROPRIATE
SCOPE
SHOULD
BE?
BECAUSE
I
DON'T
KNOW
THAT
WE'RE
EVEN
REMOTELY
RELEVANT IF
WE
GOT
FIRST
YEAR
ASSOCIATES
WHO
NEVER HAD ANY
OTHER
INVOLVEMENT
IN ANY
OF
THESE
MATTERS,
HEARING
SOMETHING
OR
SENDING
AN
E—MAIL
ABOUT
DID
YOU
HEAR
WHAT'S
HAPPENED WITH
THE
CONFLICT
AND WITH
NETFLIX?
I
DON'T
KNOW
THAT
MEANS
ANYTHING
IN THE
CASE.
SO,
WHAT'S
THE
BOUNDARY?
MR.
NEEL:
WELL,
I THINK
FIRST
YEAR
ASSOCIATES
——
I
RESPECTFULLY DISAGREE
TO
THE EXTENT THAT ANY
OF
THE
ASSOCIATES
KNEW THAT WITHDRAWAL
WAS
THE
ONLY
PERMISSIBLE
RESPONSE.
SECONDLY,
IF
YOU'RE
GOING
TO
LIMIT IT
TO
THE
MOTION T0
STRIKE
ANSWER
3 9
EXHIBIT A
lO
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20
21
22
23
24
25
PARTNERS,
THAT
SEEMS
PERMISSIBLE
BECAUSE
THE
PARTNERS
ARE
GOING
TO
BEAR THE LIABILITY
FOR MR.
SYBERT'S
ACTIONS
AND
THE
OTHER
DEFENDANT'S
ACTIONS,
SO
THEY'RE
THE
ONES
WE
WOULD
HAVE AN
INTEREST
IN
TALKING
ABOUT,
BUT
THEY DID
NOT
OBJECT
UNDER
OVERBROAD.
THEY
OBJECTED
ON
RELEVANCE.
SO
THEY'RE
NOT SAYING
IT'S
TOO
HARD
TO DO OR
IT'S
TOO
CUMBERSOME.
THEY'RE
JUST
SAYING
IT'S
NOT
RELEVANT.
MS.
WHITLOCK:
AND,
YOUR
HONOR,
AGAIN,
WHAT'S
THE
QUESTION
HE'S
TALKING
ABOUT
BECAUSE
WHEN HE
SAYS
WE
DIDN'T
OBJECT TO
HIS
OVERBROAD,
WE
DIDN'T
DO
IT.
IF
HE'S
TELLING
ME HE
WANTS
EVERY
E—MAIL
OR
EVERY TEXT
MESSAGE
OR
EVERY
CONVERSATION
THAT ANY PARTNER AT
GORDON
AND
REES
HAD
ABOUT
NETFLIX,
I
CAN'T
DO
THAT.
I
MEAN,
THAT
IS
WAY
OVERBROAD.
I
MEAN,
IT'S
A
600
LAWYER
FIRM.
THE
COURT:
I THINK WHAT
WE'RE
TALKING
ABOUT
IS
WE'RE
TALKING
ABOUT
THE
CONFLICT,
NOT
JUST
ABOUT
NETFLIX
GENERALLY
OR
ABOUT
HODGES
GENERALLY,
BUT
ABOUT
THE
CONFLICT
ISSUE
THAT
CAME
UP
AND
HOW
THE
CONFLICT
ISSUE
WAS RESOLVED.
AND I THINK A
LITIGATION
PARTNER
IS
REASONABLE.
AND,
AGAIN,
I THINK
WE'RE
IN LIMITED TIME
FRAME.
WE'RE
NOT ASKING
YOU
TO
SEARCH FOR
YEARS,
BUT
WE
GOT
APRIL
TO
SOMETIME
SHORTLY
AFTER
SEPTEMBER
OF
2015.
AND I
AGREE
THAT
OTHER
ELECTRONIC
COMMUNICATIONS,
E—MAIL,
FACEBOOK,
TEXT,
THOSE
ARE
DISCOVERABLE.
MR.
NEEL:
ON
THAT
TOPIC,
THE
LAST
POINT
I
HAVE,
MOTION TO
STRIKE
ANSWER
4
O
EXHIBIT A
IN
THE
STATE
COURT
OF FULTON
COUNTY
STATE
OF
GEORGIA
TERRY
HODGES,
an
Individual,
)
Plaintiff,
g
Civil
Action
No.
16EV004768
)
vs.
)
)
GORDON
REES
SCULLY
MANSUKHANI
LLP,
)
et
al.,
)
Defendants.
)
PLAINTIFF’S
OPPOSITION TO
SECOND
MOTION
FOR
PROTECTIVE
ORDER
Plaintiff
respectfully
requests that the
Court
deny
the
Defendants’
October
6,
2017
Motion for
Protective
Order
(“Second
Motion”).
Plaintiff
submits
this
brief
earlier
than
required
t0
permit
the
Court to
review
it
before
Friday’s
Rule Nisi
appearance
0n
the
Second
Motion.
This
Second
Motion is
purely
a
diversionary
tactic to deflect attention from
Defendants”
inexplicable
discovery
conduct,
and
try
t0
salvage
some
credibility.
Respectfully,
the
Court
should not
be
fooled.
Defendants
have
thwarted
discovery
at
every
turn.
As
further
proof,
consider that just 24 hours before the Rule Nisi
hearing,
they
have
yet
t0 provide a privilege
10g,
despite
repeated demand.
Indeed,
this
week
Defendants
asserted
another
new
privilege—the
“marital
privilege”—t0
suddenly
demand the
claw-back
0f
several
emails
that were
annexed
to
the
publicly-filed
Complaint
over a
year
ago.
Undoubtedly
the spouses involved have exchanged
ample
correspondence
about
Hodges,
but
GRSM
has
not
produced
it.
Defendants
have also
refused
to
provide the
date
on
which
the
spouses
were
married,
a
threshold
fact.
FACTUAL SUMMARY
The
Court
is
familiar with
the
case,
s0
Plaintiff
will
dispense
with
any
discussion
separate
from
his
Opposition
t0
First
Motion
for
Protective
Order
(“Opposition
to
First
Motion”).
One
claim in the
Second
Motion merits specific
response,
though.
Contrary
t0
MOTION TO
STRIKE
ANSWER
EXHIBIT B
1
Defendants’
newfound
position,
Mr.
Hodges
did
not
ever
sign
a
“work
for
hire”
agreement
with
Chris
Tucker,
nor
did
he
“equivocate”
about
it.
When
Mr.
Tucker
was
in
negotiations
t0
sell
CHRIS
TUCKER
LIVE
t0 Netflix in
early
2015,
Mr. Tucker appeared in Mr.
Hodges”
hotel
room to
demand
he
sign
a
“Consultant
Agreement”
including
a
work-for-hire
clause
and
a
stand-
alone
payment
0f
“an
additional
$5,000
for
services
Consultant
renders
during
the
development,
production,
and
post—production
of the
Comedy
Concert
Film.”
(Def.
EX. 13 at 000048
1]
2).
That
2015
document
was
dated,
“August
1,
2012.”
(Id)
Mr.
Hodges
refused
t0
sign it.
(Def.
EX.
14
at
000604.)
When
GRSM
sued
Tucker
and
Netflix,
they
knew
this,
and
alleged:
In 0r about
May
9,
2015,
at a show in
St.
Louis
Missouri,
Tucker
presented Plaintiff with an unsigned
“Consultant
Agreement”
(hereinafter
the
“Sham
Agreement”),
backdated
t0
August
2012,
in
an
effort
t0
alter
and
renege
on
his
prior
contractual
agreements
with
and
promises
to
Plaintiff
***
Plaintiff
refused
to
sign
the
Sham
Agreement,
and
still
has not
been
compensated
for his
work
on the Film. ..
(Def.
EX.
7,
at
p
5,
1]
24).1
It
was
only
after
suit
was
filed
that
Mr.
Tucker’s
lawyer
sent GRSM
a
copy
0f
the
“Consultant
Agreement”—with
Mr.
Hodges’
signatureforged
on
it.
(Def.
EX.
14
at
001417-1423;
001488).
The
most
interesting
part
of
that
forgery
is
that
the
reference
to
the
$5,000
payment
was
removed.
(Cf.
Def.
Ex.
13
000048,
fl
2
with id.
000071,
fl
2).
The
reason
is
obvious:
anyone
can
back—date
a 2015
“contract”
t0 2012 and forge a
signature,
but no one can cause Mr.
Hodges’
bank
records
from 2012
t0
show
a
$5,000
payment
that
was
never
made.
Hence,
a
forgery
was
created
that
omitted
any
reference
to
the
$5,000,
because
the
even
if
the
forgery
was
believed,
the
“contract”
would be unenforceable unless Mr. Tucker had performed
by
paying
the
$5,000.
The
2012
bank
records
would
have revealed
that
he
did
not,
and
thus
would
have revealed
the
1
Def.
Ex.
7 at
4,
1m
24—25:
MOTION TO
STRIKE
ANSWER
EXHIBIT B
forgery.
Hence,
that
$5,000
payment
provision
disappeared
in
the
forged
version.
Those
facts
were
all
well—known
t0
Defendants
When
they
represented
Mr.
Hodges.
Had
they
zealously
represented Mr. Hodges against Mr. Tucker instead 0f sabotaging and then
abandoning
him,
they
would
have
won and
proved
a
jaW-dropping
forgery.
I.
N0
Privilege
Has
Been
Demonstrated
and the
Crime-Fraud
Exception
Would
Vitiate
It
In the
Opposition
t0 First
Motion,
Plaintiff set forth the timeline 0f
underlying
events,
and
noted
both
(1)
the
Defendants’
failure
t0
even
attempt
t0
justify
their
assertions
0f
attorney-
client
privilege
or work
product
immunity;
and
(2)
the
fact that
the
Crime—Fraud
Exception
would undercut
any
claim of privilege 0r
immunity
due t0 the multiple crimes and frauds that
were
committed
in
a
months-long
scheme
overseen
by
named-partner,
Defendant
Mansukhani.
Defendants
have
not
even
taken
the
initial
step
of
providing
a
privilege
10g
as
required
under
Georgia
Uniform Superior
Court
Rule
5.5(1),
and have denied
any
responsibility
t0 d0
$0.2
Defendants
also
rely
upon
St. Simons
Waterfront
LLC
v.
Hunter,
Maclean,
Exley
&
Dunn,
P.
C,
293
Ga.
419,
746 S.E.2d
98
(2013)
(“S11
Simons”),
but
make n0
effort
to
carry
their
burden
t0
establish that
intra-firm
privilege.
They
have n0 answer t0 the fact that the claimed privileged
communications
were
in
furtherance
of
multiple
months-long
frauds
against
Hodges;
at
least
three
frauds upon the United
States
District
Court
for
the
Central
District of
California,
because
Defendants did not make
mandatory3
disclosures of the
non-consentable
conflict of
interests;
and
up
t0
three
crimes
under
Cal.Bus.
&
Prof.
Code
§
6128
(criminalizing
deceptive acts
in
Court).
2
Second
Motion,
at 9.
3
United States v.
Shetly,
N0.
CIV.SACV07-0427DOC,
2009
WL
841566,
at
*10
(CD.
Cal.
Mar.
27,
2009)
(“To
have
a
conflict
0f
interest
suflicient
t0
require
disclosure
t0 the
Court,
Petitioner's
attorney
would
have
had
t0
have
a
personal
interest
in
the
underlying
proceedings
0r
a
conflict
resultingfrom
representation
ofother
involved
parties.”)
(emphasis
added).
MOTION TO
STRIKE
ANSWER
EXHIBIT B
II.
Defendants
Should
be
Compelled
to
Produce
Documents
Concerning
The
Reaction
Within
the
Firm
t0
the
Conflict’s
Discovery
Plaintiff”
s
Document
Request
N0.
15
(EX.
23)
seeks
“[a]ny
and
all
documents
Which
reflect or constitute communications between and among
Gordon
and Rees personnel in response
to
the
realization”
0f
the
failed
conflict
check
that
Defendants
have
admitted.
Defendants
obj ected based
on
privilege,
which
cannot
be asserted
both
for
the
reasons
discussed
above,4
and
because this demand is not limited t0
GRSM
attorneys.
Rather,
it seeks documents from
GRSM
all
personnel,
including
non—attorneys
such
as
paralegals
and
staff.
Defendants’
other
obj
ection
is
to
relevance,
which
is
a
non-starter
under
Georgia’s
“very
broad[]”
interpretation
0f
relevance.5
These responsive documents would be probative of
Defendants’
states
0f
mind,
the
workplace
pressures
0n
them
t0
cover-up
their
errors,
and
the
degree
t0
which
the
mandatory
ethical
response—withdrawal6—was
known
t0
Defendants
or
others at
GRSM.
The documents
may
also inform the quantum of punitive damages awarded in
this
case due
t0
Defendants’
bad
faith,
wantonness,
oppression
and
conscious
indifference
t0
the
consequences
of
their
conduct.7
Defendants claim that the demanded documents are not relevant because
they
do not
touch
upon
the
“standard
0f
care.”
But
that
is
(1)
meritless,
because
the
“standard
0f
care”
is
not
4
Plaintiff
should
also
be
compelled
to
drop
the
assertion
of
privilege
and
respond
in
full to Document
Request
No.
24
(documents
concerning legal research
by
any
Defendant concerning ethical requirements of the
situation)
and
No.
23[a]
(correspondence
seeking legal advice concerning the
conflict).
Please note that
“23[a]”
is used because
the number 23 was
regrettably
duplicated 0n two requests. Plaintiff Will refer t0 his second request as
“23[a].”
5
Bowden v. Medical
Center,
Ina,
297 Ga.
285, 291,
773 S.E.Zd 692
(2015)
(interpreting
relevance
“very
broadly
t0
mean matter that is relevant t0
anything
that is or
may
become an issue in the
litigation.”
)(citations
omitted).
6
“[W]here
an
attorney
jointly
represents multiple parties and a conflict of interest arises between the
two,
the
attorney
is
ethically
obligated t0 withdraw and not represent
eitherparly.”
Montgomery
Academy
50 F.Supp.2d
344,
352
(D.N.J.
1999)
(citing
Worldspan,
LP. v. Sabre Group
Holdings,
Inc,
5 F.Supp.2d
1356,
1357
(N.D.Ga.
1998)
(emphasis
added);
accord Georgia Rule 0f Processional
Responsibility
1.7,
cmt. 3
(“If
an impermissible
conflict
arises
after
representation
has
been
undertaken,
the
lawyer
should
withdraw
from
the
representation”)
(emphasis
added).
7
Plaintiff
respectfully
requests
that
the
Court
rule that
punitive
damages
discovery
is
available
in
this
case,
0r
in
the
alternative
requests
permission
t0
include
that
request
in
his
forthcoming Motion
t0
Compel
and
for
Sanctions.
See
Section
V,
infra.
Plaintiff
requests
permission
t0
exceed
the
15-page
limit
0n
that
forthcoming
motion.
MOTION TO
STRIKE
ANSWER
EXHIBIT B
the
gauge
for
relevance
in
a case
alleging
fraud,
breach
0f
fiduciary
duty,
conspiracy,
and
appurtenant
punitive
damages;
and
(2)
false,
because
of
the
potential
existence
0f,
e.g.,
documents or communications from Defendants or other
GRSM
personnel indicating that
they
knew
the
only
ethical
response
t0
a
non-consentable
conflict
was
immediate
Withdrawal.
Defendants
have
referred
Plaintiff
to
the
“legal
file”
produced
in
2016.
But
even
if
the
legal file were
complete—and
Plaintiff
strongly
believes it is
notg—this
Request seeks a different
compilation
of
documents
than
the
“legal
file.”
Defendants
should
be
compelled
t0
respond.
III.
Defendants
Should
Be
Compelled
t0
Produce
Documents
Concerning
The
ABOVETHELAW.COM
Articles 0n
Sybert’s
Twitter
Feed
Plaintiff has propounded document demands concerning the response at
GRSM
t0 the
July
7
and
July
10 articles 0n
ABOVETHELAW.COM9
about
Sybert’s
Twitter
feed.
The
relevance
is
obvious
given
that
the
conflict
was
discovered—and
the scheme
enacted—on
July
8.
Was
Sybert
reprimanded on
July
7,
0r
early
in the
day
on
July
8? HOW?
By
Whom?
Was
Defendant
Mansukhani
involved?
Did
any
GRSM personnel
report
Sybert
t0
HR?
Were
Sybert’s
partnership
and/or
income
already
in
danger
When he
learned
0n
July
8
that
he
had
sued
a
$41
billion
cash-cow
client in a case that was
already
making national headlines?
Had
Defendants
acted
in
accordance
with
the
law and
ethical
rules,
they
would
have
had
t0
voluntarily
announce
a
massive
embarrassment,
Which
would
have
spread
into national
news
8
Among other
issues,
the assertion 0f various unsupported privileges
(with
no privilege
10g)
and the failure t0
produce
any
emails Which note
“bcc’s”
give Plaintiff strong suspicion that portions of his legal file were withheld.
For
example,
When
Sybert
emailed
Netflix’s
lawyer
early
in the morning of
July
9 to tell her that he was filing an
Amended
Complaint,
he
immediately
forwarded her response to Mansukhani. But did he bcc Mansukhani 0n the
initial email? On what other emails did he bcc
Mansukhani,
Mr. Packer
(GRSM
General
Counsel),
or others?
Also,
not
a
single
text
message
0r
other
form
0f
SMS
message
0r
non-email
electronic
message
has
been
produced,
despite
being
expressly
called
for.
The
lack 0f
text
messages
is
particularly
glaring
as
between
the
husband-and-wife
who
have
now
suddenly
prompted
claims 0f
“marital
privilege.”
9
Exhibits
2
& 3 t0
the
Opp. to
First
Motion.
MOTION TO
STRIKE
ANSWER
EXHIBIT B
through
both
the
entertainment
media
covering
the
case,
and
through ABOVETHELAW.
But
by
not
doing
What
the ethics
rule
mandated,
Defendants
swept
their
Netflix
debacle
under the rug. The
ABOVETHELAW
issue blew
over,
days
became weeks and
months,
and n0
one
was
the
Wiser—until
Mr.
Hodges
figured
it
out.
The
personal
and career
stakes
that
led the
Defendants
to
the
cover—up
are
badges
of
fraud;
proof of motive to
betray
Hodges;
and proof 0f
intentionality,
willfulness,
and bad faith
for the
punitive
damages
analysis.
These
highly
probative
documents should
be
produced.
IV.
The
California
Defendants
Should
Be
Compelled
t0
Produce
Redacted
Tax
Returns
Demonstrating
Any
Declaration
0f
Georgia
Income
Last
Winter,
the three
California-based
Defendants moved t0 dismiss 0n personal
jurisdiction
grounds.
Plaintiff
countered
by
noting
that
Defendants
likely
declared
Georgia-
specific
income 0n
their
taxes,
in
order
t0
take
advantage
0f
Georgia’s
state
income
tax
rate that
is half of
California’s
eye-watering
13.3%.
The
Court
denied the motion based upon the
existence
of
conspiracy
jurisdiction,
but
noted
in
passing
that
the
Plaintiff
had
shown
no
evidence
of income
from
Georgia.
The
Court
declined
to
grant
those
Defendants’
request
for
a
Certificate
of Immediate Review.
Plaintiff
demanded redacted
versions
0f
the tax
returns
showing
Georgia
income.10
The
California
Defendants
refused
t0
provide
this
information,
asserting that
because
“the
Motion
to
Dismiss has been decided this issue is
moot.”
(Def.
EX. 3 at p. 9
(emphasis
added).)
The
issue
is
not
moot,
because
Defendants
can
mount
a
post-judgment
appeal.
Plaintiff
offered
t0
withdraw
this
document
demand
if
the
California
Defendants
agree
t0
truly
“moot”
the
10
“Request
N0.
20:
A11
tax
returns
for
calendar
year
2015
Which
indicate
that
any
income
was
generated
by
operations
within
the
State
0f
Georgia.”
Plaintiff
offered
t0
compromise
by
having
the
California
Defendants
redact
the
entire
returns
except
any
line
noting
Georgia
income.
These Defendants
refused.
MOTION TO
STRIKE
ANSWER
EXHIBIT B
issue
by
waiving
any
obj
ections
t0
personal
jurisdiction.
They
refused.
Defendants cannot
refuse
to
produce
conclusive
evidence that
they
availed
themselves
0f
the
privilege
0f doing
business in
Georgia,
While reserving the right to argue that Plaintiff failed t0 adduce evidence
that
they
availed
themselves
0f
the
privilege
0f doing
business
in
Georgia.
V.
Defendants
Should
Be
Compelled
t0
Produce
Documents
Concerning
their
Earnings
and
Promotions Before
and
After
July
8,
2015
Three Document Requests seek information from
January
1,
2013 through the present
about
the
change
in
earnings
(No.
27)
and
job
titles
(N0.
28)
of
the
individual
Defendants,
and
about
the
earnings
of
the
GRSM
firm
(No.
29).
(Def.
EX.
23
at
11-12.)
Defendants
objected t0
all three 0n the basis that punitive damages
discovery
is improper.
The
compensation
of
the
Defendants—and
the
possible
quidpro
qua
involved
in
keeping
every
Defendant
in
the
conspiracy
through
money,
promotion,
or
other
incentive—are
evidence
of badges of
fraud,
motives to breach
fiduciary
duty,
and incentives t0
“g0
along”
With the
cover-
up.
Under
Holland
v.
Caviness,
292
Ga.
332,
335,
737
S.E.2d
669
(2013)
“if
a cause
of action is
within
the
ambit
0f
OCGA
§
5
1-12-51,
evidence
of
the
defendant's
financial
circumstances
may
be
admissible.”
Mr. Hodges has
already
made an ample showing that this case is Within the
ambit
of
sections
51-12-5.1
(b)
(“willful
misconduct,
malice,
fraud,
wantonness,
oppression”)
and
(f)
(“acted,
or failed
to
act,
With
the specific
intent
to cause
harm”).
VI.
Defendants
Should
Be
Compelled
t0 State
the
Ethical
Basis
for
an
Attorney
With
a
Non-Consentable
Conflict
t0
Threaten
t0
Drop
One
Conflicted
Client Unless
He Dismisses the
Other
Conflicted
Client
MOTION TO
STRIKE
ANSWER
EXHIBIT B
Four
Interrogatories“
called
for
Defendants t0
identify
the
basis
under
the
Rules
0f
Professional
Conduct
0f
Georgia and
California
for
their claim
that
it
was
not
improper
t0
continue t0 communicate With Hodges and to continue t0 advise him after learning of the
conflict.
(Exs.
22,
28-31
at
8-9.)
Defendants
objected
0n
the
basis
that
these
Interrogatories
are
irrelevant,
vague,
ambiguous,
argumentative,
assume
facts
that
Will
not
be
in
evidence
in
this
case,
and call for a legal opinion/conclusion.
(Id.)
Those
obj
ections
are
non—starters:
The
Defendants’
defense
for
failing
in
their
ethical
obligations
are
highly
probative
of
their
conduct
in
this
case
of
malpractice,
fraud
against
their
own
client,
and breach 0f
fiduciary
duty.
And
O.C.G.A.
9-1
1-33(b)(2)
makes plain that
“legal
conclusions”
are
fair
game
for
Interrogatories:
“An
interrogatory
otherwise
proper is
not
necessarily
obj
ectionable
merely
because
an
answer
t0
the
interrogatory
involves
an
opinion
0r
contention that relates t0 fact or t0 the application 0f law t0 fact. .
.”
Defendants
claim
(without
citing
any
authority)
that
the
ethical
rules
permitted
them
to
advise
Hodges
t0
dismiss
his
claims
against
Netflix,
and
thereby
make
the
non-consentable
conflict disappear.
(Second
Mot. at
9.)
That Claim could not be more wrong: the ethical rules
require
immediate
withdrawal to prevent
that kind
0f
misconduct.
If
Defendants
disagree,
these
Interrogatories
provide
them
the
opportunity
t0
explain.
11
Interrogatory
Nos. 20
[and
22]
read:
Identify
the ethical rule or rules under the California
[and
Georgia]
Rules of Professional Conduct that permit an
attorney
with an
actual,
unwaived conflict of interests to
continue
t0
advise
either client
concerning
the matter
as t0
which
the
conflict
exists.
Interrogatory
Nos.
21
[and
23]
read:
Identify
the
ethical
rule
0r
rules
under
the
California
[and
Georgia]
Rules
0f Professional
Conduct
that
permit
an
attorney
with an
actual,
unwaived
conflict
0f
interests
t0
continue
t0
communicate
With either client
concerning
the matter
as t0
which
the
conflict
exists.
MOTION TO
STRIKE
ANSWER
EXHIBIT B
Respectfully,
this line
0f
inquiry
should
be
put t0 Defendants at
Friday’s
Rule Nisi
hearing.
What
is
their
justification
for
their
failure
to
Withdraw
immediately
when
they
realized
the
non-consentable
conflict? A
year
into this
action,
they
have none. None exists.
VII.
Defendants
Should
Be
Compelled
Produce
Communications
With
Certain
Non-Parties
Concerning
Plaintiff
Document
Request
No.
19
seeks:
All communications with 0r concerning
Chris
Tucker,
Norris
Tucker,
Tammye
Stocks,
Chris
Tucker Enterprises
LLC,
Netflix,
Inc.
(“Netflix”),
Martin
Singer,
Esq.,
Lavely
&
Singer,
P.C.,
Allison
S.
Hart,
Esq.,
Susan
Anderson,
Esq.,
Caldwell Leslie
&
Proctor,
P.C.,
and/or
Linda
Burrow,
Esq.
with
respect
to
Plaintiff.
Defendants obj ected 0n the basis 0f both
attorney-client
privilege and
attorney
work-
product,
as
well
as
relevance,
and
referred
Plaintiff
again to
the
“legal
file.”
The
relevance
objections
fail:
of
course
communications
“with
respect
to
Plaintiff”
With
the listed persons and entities that were involved in the Hodges v. Tucker
&
Nez‘flix
case are
relevant.
The
privilege
objections
also
fail
(Section
I,
supra),
unless
Defendants
are
claiming
the
existence
0f an
attorney-client
relationship
with
the listed persons and entities.
When
asked
t0
confirm the
non-existence
0f such an
attorney-client
relationship
(setting
aside
Netflix),
Defendants
refused
(Def.
EX.
3
at
8.)
Unless
they
can
prove
the
existence
0f
such
an
attorney-
client
relationship,
Defendants
should
be
compelled
to
respond
in
full
to
this
demand.
VIII.
Defendants
Should
Be
Compelled
t0
Produce
Non-Privileged
Documents and
Answer
Limited-Scope
Interrogatories
Concerning
NetfliX
Plaintiff asked limited questions about
Netflix,
t0 Which Defendants have raised privilege
and
other
objections.
Defendants
should
be
compelled
t0
respond
t0
the
items
below.
Interrogatorv
N0.
11:
Identify
all
matters
in
which
you
have
provided
legal representation t0
Netflix,
Inc.
and/or
Netflix,
LLC.
MOTION TO
STRIKE
ANSWER
EXHIBIT B
Reguest
N0.
21:
All
engagement
letters
With
Netflix,
Inc.
[Which
was
limited
by
compromise
t0
redacted
engagement
letters
showing
the
dates
of
the
representations
and
any
advance-waiver
clauses.]
Reguest
N0.
22: All communications with
Netflix,
Inc. concerning Plaintiff.
Reguest
N0.
23:
All
communications
with
Netflix,
Inc.
concerning
the
conflict
0f
interests
involving
GRSM’s
representation
of both
Plaintiff
and
Netflix.
Defendants
Mansukhani
and
GRSM
have
objected t0
all
four 0n
the
basis
of
relevance
and
privilege,
and have obj ected t0
Interrogatory
11 and Document Requests
21-23
0n the basis
that
they
seek
t0
“harass,
annoy,
and
embarrass.
..
and
not for
any
legitimate
discovery
purpose.”
Defendants’
relevance
objection
is
inapposite.
Their
assertion
that
the
testimony
of
Netflix personnel became irrelevant after
they
maneuvered Netflix out 0f the case in
July
(EX.
3
at
9-1
1)
is
disproven
by
their
own
legal
work:
GRSM listed
Netflix
personnel on
the
draft
Witness
List
for
the
federal
court
in
September—until
Sybert
ordered,
“take
them
ofl.”
Netflix’s
personnel still
had,
and
have,
information probative
0f,
e.g.,
Mr.
Tucker’s
representations t0
Netflix
during
the
negotiations
for the
purchase
and
sale
0f
CHRIS
TUCKER
LIVE;
their
requests
for
work—for—hire
and
right
of
publicity
agreements
with
Mr.
Hodges;
the
terms
and
price paid
by
NetfliX for
CHRIS
TUCKER
LIVE;
and other facts probative of
Hodges’
claims.
The
legal work
that
GRSM performed
for Netflix
is
probative
0f
the
Defendants’
motivations,
willfulness
and
bad
faith.
Defendants
have
already
produced
a
document
proving
that NetfliX retained
GRSM
(and
Mulrain
personally)
0n a new matter before the end of
July
2015.
(Defendants
have
asked
to
claw-back
that
document
0n
“privilege”
grounds.)
“Privilege”
is
also
inapposite.
Document
Requests
22
and
23
are
expressly
limited
t0
communications concerning the Plaintiff. To the extent
any
Defendant discussed
GRSM
client
Mr.
Hodges
or
the
conflict
with
any
person
at
Netflix,
there
could
be
n0 expectation 0f
MOTION To
STRIKE
ANSWER
0
EXHIBIT B
confidentiality
by
either
communicant: both knew
that
Mr.
Hodges
was a
current
GRSM
client
and
thus that
the
GRSM
communicant
had
duties
to
report
the conversation
t0
Hodges.
Document Request No. 21
(redacted
engagement
letters)
and
Interrogatory
11
(other
Netflix
representations)
are
also
fair
game.
If
those
engagement
letters
contained
advanced
waivers,
that
is
a
probative
fact.
The
representations
themselves
are not
privileged,
either:
Defendants have
already
produced a list 0f all Netflix
representations,
Which has been public for
a
year
as
Exhibit
F
to
the
Complaint.
Interrogatorv
N0.
17:
State
the
names,
addresses,
and
telephone
numbers
0f
the
person(s)
at
Netflix,
Inc.
and/or
Netflix
LLC
With whom
you
interact
in
the course 0f
your
representation 0f either 0r both 0f those entities.
Defendants
have
refused
t0
answer
Interrogatory
No.
17,
and
have
obj
ected
on
the
basis
of
relevance;
0n
the
basis
that
it
seeks
to
“harass,
annoy,
and
embarrass.
..
and not
for
any
legitimate
discovery
purpose;”
and on the basis 0f
attorney-client
privilege and
attorney
work
product.
These
objections are
without
basis:
Interrogatories
are available
t0
discover
“the
identity
and
location
0f
persons
having
knowledge
0f
any
discoverable
matter.”
O.C.G.A.
§§
9-
11-33(b)(1),
9-1
1-26(b)(1).
This
Interrogatory
seeks
only
t0
identify
relevant fact Witnesses.
What GRSM
said
t0
its client
contacts
at
Netflix
during
and
after
the
revelation of
the
impermissible
conflict,
the
“damage
control”
conducted
by
Defendants after
July
8,
2015,
their
discussions of Mr.
Hodges,
and other germane issues are all fair game in disclosure.
Any
privilege
obj
ections
can
be
asserted
at
later
depositions
of
those
individuals,
but
their
identities
and
contact
information
are not
privileged.
Reguest
N0. 30:
All documents concerning efforts t0 bring in
Netflix
Inc. as a
client
and/or
t0 retain
Netflix
Inc. as a client.
MOTION To
STRIKE
ANSWER
1
EXHIBIT B
GRSM
obj
ected
to
Request
N0. 30
0n
the
basis
of
relevance;
attorney-client
privilege
and
attorney
work-product;
and
on
the
basis
that
it
seeks
to
“harass,
annoy,
and
embarrass.
..
and not
for
any
legitimate
discovery
purpose.”
GRSM’S
courtship 0f
NetfliX
is
patently
relevant
and
not
harassing
in
a case
alleging
that
Defendants’
committed
fraud
and breach
0f
fiduciary
duty
to assuage
and
protect
Netflix.
T0
the
extent that Defendants marketed their services t0 Netflix
after
they
maneuvered Netflix out 0f
Hodges
v.
Tucker
&
Netflix,
those
communications
are
probative
0f
their
motive
and
willfulness.
Nor
is
the
claim
0f
privilege
valid.
There
is no
attorney—client
privilege
attached
t0
documents that have never been shared With NetfliX and do not contain communications from
Netflix.
IX.
GRSM
Should
Be
Compelled
t0
Disclose
Other
Civil
Suits
and
Bar
Grievances
Interrogatories 9 and 10
(Which
ask for a list of civil suits and bar
grievances,
respectively,
in
the
past
10
years,
EXS.
22,
28-3
1)
are
proper.
Based
0n
the
conspiracy
of
misconduct
against
Plaintiff
at
GRSM’S
highest
levels,
Plaintiff
has
a
basis
for
this
demand.
X.
Defendants
Should
Be
Compelled
t0
Answer
Their
Own
Form
0f
Document
Request for
Social
Media
Posts,
Particularly
In
View
0f
Sybert’s
Twitter Feed
Defendants
have
objected
t0
Request
N0.
25
(EX.
23 at
10)
Which
seeks
Defendants’
social
media
posts,
on
the
bases
0f
overbreadth,
undue
burden,
relevance,
and
that
it
seeks
to
“harass,
annoy,
and
embarrass.
..
and not
for
any
legitimate
discovery
purpose.”
That is an odd objection: Request N0. 25 is a verbatim reprinting 0f
Defendants’
Request
No.
14
to
Mr.
Hodges,
with
the
only
change
being
the
year
“2012”
t0
“2013.”
Mr.
Hodges
produced
documents
responsive
t0
Defendants’
Request
N0.
14.
Yet
in
response
t0
their
own
form
ofdemand—Which
is
inarguably
relevant given
Sybert’s
Twitter history—Defendants deem
MOTION To
STRIKE
ANSWER
2
EXHIBIT B
their
own
question
“not
legitimate”
and
a
ploy
t0
“harass,
annoy,
and
embarrass.”
Defendants
should
be
required
to
answer
their
own
document
demand
in
full.
XI. The
Second
Motion
Contains
N0
Factual
Argument
Concerning
Either
Defendants’
Claims
0f
Compliance
0r 0f
Plaintiff’s
Non-Compliance
The
Second
Motion
lays
out
Defendants’
spin
0n
the entire
affair),
but
does
not
purport
t0
delve
into
the
facts
of
the
“disputes”
that
they
claim
exist. Nor
does
the
Second
Motion
take
the
step 0f citing statutes 0r case law to explain
Why
their position should prevail.
It’s
essentially
15
pages
of
prose.
Plaintiff
is
in
the
unusual
position
of being
forced
t0
make
Defendants’
arguments
in
order t0 counter them. He
declines,
except to state that he has complied in
full,
as the weeks 0f
lawyer-to-lawyer
letters
annexed
to
the
Second
Motion
make
clear.
Notably
absent
from
the
Second
Motion
are
any
efforts
by
Defendants
to
explain
their
own misconduct. Defendants do not:
o
Justify
their claim
that
their
admittedly-impermissible
conflict
existed
only
during
the
48
hours
between
the
filing
0f
the
California
state court
Complaint
(Second
Mot.
at
8)
and
the federal Amended
Complaint.
The conflict existed at all times during representation.
o
Offer
any
factual
basis
to support
their claim
0f
intra—firm
privilege.
0
Explain
Why
they
have
refused
to
produce
a
privilege
10g
nor explain
their
claim
that
“GRSM
is
not
required
to
itemize
for
Plaintiff
each
of
the
[allegedly
privileged]
communications
had
Within
that
relationship”
is
credible
in
View
of Rule
5.5(1),
which
requires a Withholding
party
t0 produce a privilege log.
o
Offer
any
defense
t0
the
Crime—Fraud
Exception
except
a
conclusory
statement
that,
“There
simply
is n0 such applicable
exception.”
(Second
Mot. at
9.)
MOTION To
STRIKE
ANSWER
3
EXHIBIT B
o
Explain
Why
they
subpoenaed
3
non-parties—including
a
subpoena
upon
Mr.
Tucker
that
sought financial information about the
Plaintiff—Without
noticing Plaintiff.
XII. Plaintiff
Should
Be Awarded His
Attorneys
Fees and
Costs
“Consequences
flow
from
an
attorney’s
unilateral
decision
not
t0
appear
for
a
deposition.”
Edmonds
v.
Seavey,
N0. 08
CiV.
5646(HB),
2009
WL
1285526,
at
*
1
(S.D.N.Y.
May
5,
2009),
afl’d,
2009
WL
2150971
(S.D.N.Y.
July
20,
2009),
afl’d,
379 Fed. Appx. 62
(2d
Cir.
2010).
Under
O.C.G.A.
§
9-15-14(b),
this
Court
may
“assess
reasonable
and
necessary
attorney's
fees
and
expenses
0f litigation...if it finds
that
an
attorney
0r
party
unnecessarily
expanded
the
proceeding
by
other improper
conduct,
including,
but not limited
t0,
abuses of
discovery
procedures.”
(emphasis
added).
Section
9-1
1-30(g)
expressly
states:
If
the
party
giving
the notice
of
the
taking
a
deposition
fails
t0
attend
and
proceed
therewith
and
another
party
attends
in
person
0r
by
attorney
pursuant
t0
the
notice,
the court
may
order the
party
giving the notice t0
pay
t0 such other
party
the
reasonable expenses incurred
by
that
party
and that
party’s
attorney
in
attending,
including
reasonable
attorney’s
fees.
The
federal
rule
0n
which
this
Section
is
modeled
“does
not
require
that
the
noticing
party
acted in
‘bad
faith,’
although bad faith
may play
a part in the exercise of the
court’s
discretion in
making
an
award.”
Prism
Techs.,
LLC
v.
Adobe
Sys.,
Ina,
No.
8:10CV220,
2011
WL
6887121,
at
*3
(D.
Neb.
Dec.
29,
201
1).
Reasonable
attorneys’
fees
and
costs
should
be
awarded
where
the
noticing
party
did not appear.
See,
e.g.,
Pine Lakes Int
’l
Country
Club
v. Polo
Ralph
Lauren
Corp.
,
127
F.R.D.
471,
472
(D.S.C.
1989)
(awarding
attomeys’
fees
against
cancelling
party).
Moreover,
under
n0
circumstances
did
Defendants
have
the
right
to
unilaterally
“cancel”
Mr.
Mulrain’s
September
20 deposition. As
Plaintiff’s
counsel emailed them at the
time,
“[m]erely
filing
motions
for
a
protective
order
d[oes]
not
relieve
[a
noticed
party]
from
the
duty
to
MOTION To
STRIKE
ANSWER
4
EXHIBIT B
appear
at
[his]
deposition.”
Rice
v.
Cannon,
283
Ga.
App.
438,
440
(Ga.
Ct.
App.
2007).
Defendants
made
n0
attempt
for
an
expedited
ruling,
and
simply
refused
to
attend
either
day.
Defendants’
counsel’s
decision not t0 take the deposition 0f Mr.
Hodges,
nor t0 produce
Mr.
Mulrain
for his
deposition,
was
deliberate
and imposed
substantial
costs
and
lost
opportunity
t0
earn
other
money.
This
result should not
be
tolerated.
Additionally,
Mr.
Hodges
has
incurred
more fees and costs associated With opposing these two meritless Motions and attending the Rule
Nisi
hearing.
A11
such
costs
are
recoverable.
See Jones v.
Lehigh
S. W. Cement
Ca,
No.
1:12-CV-
00633-AWI-JLT,
2014
WL
346619,
at
*6
(E.D.
Cal. Jan.
30,
2014)
(“Travel
costs,
travel
time,
and lodging are compensable in the form of sanctions Where a
party
fails t0 appear at a deposition
he
has
noticed.
. . .
In
addition,
the
time
expended
by
Defendant’s
counsel
in
bringing
this
motion
is
compensable
pursuant
t0
Rule
30.”).12
Based 0n the
foregoing,
Mr. Hodges
respectfully
requests that the
Court
order Defendants
and/or
their
counsel
to
reimburse
Mr.
Hodges
his
costs
(including
travel)
and
a
reasonable
award
of
attorney’s
fees
for
the cancelled
depositions,
these
two
Motions,
and the
Rule Nisi
hearing.
CONCLUSION
For the reasons set forth
herein,
Plaintiff
respectfully
requests that this Motion be denied.
RESPECTFULLY
SUBMITTED,
this 2nd
day
0f
November,
2017.
Law
Office
0f
Wallace
Neel,
P.C.
Attorney
for
Plaintiff
By:
7%0/
WalTace
Neyel
Admitted Pro Hac
Vice
43
West
43rd
Street,
suite
65
New
York,
NY
10036-7424
(646)
524-6502
12
See also
Prism
Techs.,
2011
WL
6887121,
at
*7
(awarding
attorney’s
fees
for
deposition
preparation
time);
Carlson,
2011
WL
3957524,
at
*4
(awarding
attorney’s
fees
and
expenses
incurred
in
making
motion);
Miller,
2008
WL
21
16590,
at
*2
(same);
Roger
Dubuis
N.
Am.,
2006
WL
3199141,
at
*4
(same).
MOTION To
STRIKE
ANSWER
5
EXHIBIT B
Local
Counsel:
Warren R.
Hinds,
P.C.
By
Warren
R.
Hinds.,
Esq.
Crossville
Village
Office
Park
1303
Macy
Drive
Roswell,
GA
30076
(770)
993-1414
(tel)
(770)
993-4441
(fax)
6
MOTION TO
STRIKE
ANSWER
EXHIBIT B
IN
THE
STATE
COURT
OF FULTON
COUNTY
STATE
OF
GEORGIA
TERRY
HODGES,
an
Individual,
)
)
Plaintiff,
)
Civil
Action
No.
16EV004768
)
vs.
)
)
GORDON
REES
SCULLY
MANSUKHANI
LLP,
)
et a1.
)
CERTIFICATE
OF
SERVICE
I
hereby
certify
that
0n
November
2,
2017,
a
true
and
complete
copy
of
PLAINTIFF’S
OPPOSITION TO
SECOND
MOTION
FOR
PROTECTIVE
ORDER
was served
Defendants
upon all counsel in this action
by
electronic mail t0:
Dated:
November
2,
20
1
7
Law
Office
0f
Wallace
Neel,
P.C.
Attorney
for Plaintiff
Wallace
Neel
Admitted Pro Hac
Vice
43
West
43rd
Street,
suite
65
New
York,
NY
10036-7424
(646)
524-6502
Local
Counsel:
Warren
R.
Hinds,
P.C.
By
Warren
R.
Hinds.,
Esq.
Crossville
Village
Office
Park
MOTION TO
STRIKE
ANSWER
EXHIBIT B
1303
Macy
Drive
Roswell,
GA
30076
(770)
993-1414
(tel)
(770)
993-4441
(fax)
MOTION TO
STRIKE
ANSWER
EXHIBIT B
303
Peachtree Street
NE
HAWKINS PARNELL
“33:35:22:
THACKSTON
&YOUNG
Lu:
IP:
404.614.7400
F: 404.614.7500
hptylaw.com
ATTORNEYSATLAW
Atlanta
Austin
Charleston
Chicago
Dallas
LosAngeles
Napa
NewYork
St.Louis
San
Francisco
Writer’s
Direct: 404.614.7483
Writer’s
Email:
January
4,
2018
VIA
E-MAIL
Honorable
Eric
A. Richardson
State Court
of Fulton
County
185
Central
Avenue
SW
Suite
T3755
Atlanta,
GA 30303
Re:
Terry
Hodges
v.
Gordon
Rees
et al
CAF#
16EV004768
Dear Judge Richardson:
Apparently
to
circumvent
this
Court’s
15-page
limit
for
briefs,
Plaintiff
submitted
a
23-
page,
single
spaced
letter
Which
complains
strenuously
about
Defendants’
privilege
logl.
From
the skeletal information contained in the log
(as
is appropriate for such a
document),
Plaintiff
weaves a tale
worthy
of J.K. Rowling:
he’s
created fantastic beasts and conspiracies out of thin
air.
Indeed,
from
an
entry
such
as
“From
Mansukhani
to
Bitter
regarding
weather”,
Plaintiff
has
created
“Mansukhani
said to Bitter that the weather tomorrow Will be perfect for robbing the
bank”.
Quite
plainly,
neither
Plaintiff’s
conjectures
nor his
conclusions
are
appropriate
nor
accurate.
Defendants submit
that
the
Court
should
rej
ect
them
all.
Plaintiff,
in
his
letter,
as
he
has
since
inception of
the
case,
repeatedly
laments
that
Defendants
“covered
up”,
“concealed”,
and
“failed
to
disclose”,
but
never
identifies
What
it
is
that was
allegedly
withheld from him. As Plaintiff admits in his
Complaint,
Richard
Sybert
advised Plaintiff that GRSM had a conflict on the
day
they
discovered it.
(Comp,
1T3
1).
And this
conversation
was
followed
by
an
e-mail
which
stated,
“[W]e
discovered
a
conflict
in
that
we
represent Netflix in other cases.
We
cannot
ethically
proceed unless we dismiss them as a
defendant.”
(C0mp.,
EX.
C).
Clearly,
nothing
was
withheld or
not
disclosed
to
Mr.
Hodges
and
his
accusations
to
the
contrary
do
not
convert
privileged
documents
into
discoverable
information.
1
Conspicuously
absent
from
Plaintiff’s
letteriand
any
other
writing
from
Plaintiff in
this
caseiis
any
supplemental
response
to
the
discovery
Defendants
served
on
Plaintiff that Plaintiff
has failed
adequately
t0 answer.
That,
also,
is a matter Which needs the
Court’s
attention.
MOTION TO
STRIKE
ANSWER
11680788
EXHIBIT
C
Hawkins
Parnell
Thackston
&
Young
LLP
Honorable
Eric
A. Richardson
January
4,
20 1 8
Page
2
Plaintiff
also
complains
that
Defendants
“tricked
him”
into
dropping
his
case
against
Netflix,
thus
“giving
up”
his rights against Netflix. This
point,
like the
first,
is neither true nor
pertinent
to
the
decision
the
Court
is
to
make
at
this
time.
Plaintiff,
assuming
he
has not
permitted
the
statute
0f
limitations
to
run,
still
has
today
whatever
rights
he
had
against
NetfliX
When the Amended
Complaint
was filed in the
Chris
Tucker case. In tacit admission that the
“rights”
were
either
non-existent
or of no
value,
Plaintiff
has chosen not
to
pursue
them.
Plaintiff
repeatedly
argues
that Defendants were required t0 withdraw upon
discovery
of
the
conflict,
but
that
is
neither
the law
nor
the
decision
for
the
Court to
make
at
this
juncture.
Defendants’
conduct,
upon
learning
0f
the
conflict,
was
appropriate,
legal,
and
ethical.
And
Plaintiff’s
self—contradictory,
circular
arguments
0n this matter are evidence of that. Plaintiff
contends,
0n
the one
hand,
that
Defendants
were
required
t0
withdraw
and,
on
the
other,
that
they
were
not
permitted
t0
“threaten
t0
Withdraw”2.
The
internal
inconsistency
in
Plaintiff
s
argument
alone is evidence of its
falsity.
However,
none 0f that is pertinent t0 the question at bar: Whether
the
documents submitted
by
Defendants
in
camera
are
privileged
and
also
otherwise
discoverable.
The
answers
t0
those
questions
are
yes
and
no,
respectively.
Trying
to
avoid
this
conclusion,
Plaintiff
in
his
letter
makes
a
number of
arguments
about
the
attorney—client,
work
product,
and
marital
privileges,
as
well
as
the
standards
for
discovery.
He
fails,
however,
t0 direct the
Court
t0 a single instructive
Georgia
case on these issues. As the
Court
recognized,
Georgia law
is
the
governing
authority
for
its
decision
0n
discoverability
and
admissibility.
(“I’m
ready
to
be guided
0n
that point
[regarding privilege]
by
What
Georgia law
says.
.
.”
11/03/17 transcript at
27-28).
Under
that
law,
as set forth in Defendants cover letter t0
the
Court
0f
December
6,
2017,
the few
Flaherty
e-mails,
and
their
oral
conversations,
are
protected
by
the
marital
privilege
and
the
remaining
documents are
protected
by
the
attorney-
client or anticipation 0f litigation/work product privileges or are
entirely
immaterial
and,
thus,
not
discoverable.
Even in the
non-Georgia
law
arguments
that he
makes,
Plaintiff mixes and matches
statements
about
the
various
privileges,
how
they
arise,
and how
they
work.
With
respect
to
the
marital
privilege,
he ignores
Georgia law
entirely.
And
With
respect
t0
all the
privileges,
he
fails
t0 distinguish between the firm file for
Plaintiff’
s case
(every
page of
Which—Without
exception-
-was
produced
t0
Plaintiff)
and
other
documents
that
might
concern
or
mention
or
be about
Plaintiff,
the
conflict,
and/or
Netflix,
but
were
not the
“fruits
0f
labor”
created
by
GRSM
in
their
representation 0f Plaintiff.
See,
In the Matter
ofKaleidoscope,
Ina,
15 B.R. 232
(BR.
N.D.
GA.
1981),
modified
0n
other
grounds,
25 B.R.
729
(N.
D.
Ga.
1982).
Plaintiff
is
not
entitled
t0
privileged or
irrelevant
documents
that
are
not the
fruits 0f
GRSM’S
labor
0n
Plaintiff
s
behalf.
2
The
case
Plaintiff
cites
for
this
proposition
does
not
remotely
say
what
Plaintiff
claims
that it
does. See
Unified
Sewerage
Agency
v.
Jelco,
Inc.,
646 F.2d
1339,
1345 n. 4
(9th
Cir.
1981).
2
MOTION
TO
STRIKE
ANSWER
EXHIBIT
C
Hawkins
Parnell
Thackston
&
Young
LLP
Honorable
Eric
A. Richardson
January
4,
20 1 8
Page
3
In
arguing
that
he is
entitled
to
something
more
than
has
already
been
produced,
Plaintiff’s
letter disregards
completely
Defendants’
supplemental responses t0 Requests for
Production.
In
that
pleading,
served
on
December
6
with
the
privilege
log,
Defendants
stated
that,
“N0
named
Defendant
and
n0
partner
0f
the
Law
Firm
Defendant
has
any
texts
0r
social
media post Which relates in
any
manner t0
Plaintiff.”
Defendants adhered t0 the
Court’s
directive
and
asked
every
law
firm
partner and
every
named
defendant
to
check
personal
devices
for
messages
that
were
about
Terry
Hodges.
There
simply
were
no
personal
e-mails,
chats,
text
messages,
Facebook Messenger
messages,
WhatsApp
messages,
Google
1M
messages,
WeChat
messages,
other
form
of
short
message
system,
0r
“chat”
documents
about
him.
Plaintiff concedes that the documents produced t0 him
by
Defendants—Which
include
much more than
the
file—do
not
at
all
support
his
claims.
Rather than then
concede
that
his
fishing
expedition
was
unsuccessful,
Plaintiff
boldly
urges
the
Court
t0
permit
him
to
depose
all
the people Whose name appears on the privilege 10g. Besides expanding the scope 0f
discovery
far
beyond
anything
that
is
reasonable
and
permitted
by
the
Civil
Practice
Act,
this
argument
Wholly
flouts
the
purpose
of
the
10g
and
the
submission
in
camera:
the
documents and
information are privileged and therefore not discoverable in written or oral form regardless of
whether
the
information
might
otherwise
be
considered
relevant
or
reasonably
calculated
t0
lead
t0
the
discovery
of
admissible
evidence.
Defendants
have
produced
to
Plaintiff
all
that
to
which
he is
entitled
under
Georgia
law,
as
the
Court
can
tell from
the
documents
submitted
in
camera.
If
the
Court
has
any
question
or
concern about
any
particular
document,
Defendants would be
happy
to address them in a manner
which
will
not reveal the
privileged
content
to
Plaintiff.
Despite Defendants good faith compliance With the
discovery
rules,
Plaintiff has failed
and
refused
t0
fulfill his
own
obligations.
He
has
failed
to
provide
any
of
the
information
Defendants
asked
for
in
their
good
faith
letter
seeking
Plaintiff’s
cooperation
and
the
Court
has
not
yet
addressed
Defendants’
Motion t0
Compel.
For
this
reason,
Defendants
respectfully
request
that
the
Court
schedule
another
in-person
discovery
conference With the parties.
Once
the
written
discovery
issues
are
resolved,
Defendants
Will
be
in
a
position
to work
With Plaintiff to schedule depositions t0 take place at
mutually
convenient time and place.
3
MOTION
TO
STRIKE
ANSWER
EXHIBIT
C
Hawkins Parnell
Thackston
&
Young
LLP
Honorable
Eric
A. Richardson
January
4,
2018
Page
4
We
100k
forward
to
the
Court’s
fufiher
direction.
Very
truly
yours,
HAWKINS
PARNELL
HACKSTON
&
YOUNG
LLP
Kathryn
S.
Whitloc'
KSW/mlb
cc:
H. Lane
Young
Wallace Neel
Warren Hinds
4
MOTION TO
STRIKE
ANSWER
11680788v.1
EXHIBIT
C
IN THE
STATE
COURT
OF
FULTON
COUNTY
STATE
OF
GEORGIA
TERRY
HODGES,
an
Individual,
Plaintiff,
vs.
Civil
Action
No.
16EVOO4768
GORDON
REES
SCULLY
MANSUKHANI
LLP,
et
al.
Defendants.
VIDEOTAPED
DEPOSITION
OF
RICHARD
P.
SYBERT,
ESQ.
Taken
at
San
Diego,
California
March
l5,
2019
Reported
by
Dana E.
Simon
—
CSR
Certificate
No.
12683
MOTION
TO
STRIKE
ANSWER
EXHIBIT D
lO
lO
lO
10:
lO
lO
:27:
:27:
:27:
27
:28:
:28:
22
39
48
:59
24
37
OWU‘I-b
ll
12
l3
l4
15
l6
l7
18
l9
20
21
22
23
24
25
LON
Richard
P.
Sybert
—
3/15/2019
A I
had
a
firm—issued
phone.
I
don't
know
if
it
was
an
iPhone
or
a
Samsung
Galaxy.
At
some
point
in
the
past
I
had
a
Samsung
Galaxy,
and
then
I
transitioned
over.
I
think
it
was
earlier
than
that.
So
I
think
the
answer
to
your
question
is
probably
yes.
Q
Regardless
of
the
make
and
model,
you
had
a
firm—issued
phone?
A
Yes.
Q
Other
than
your
firm-issued
phone,
did
you
in
2015 have
a
personal
phone?
A
No.
Q
You
just
had one
phone?
A
Right.
And
I
used
that
——
I
used
the
firm—issued
phone,
I
always
have,
as
my
personal
phone
as
well.
Q
Did
you
search
your
phone
for
records
in
response
to
the
request
for
you
to
gather
documents?
A
No.
Q
Do
you
recall
deleting
any
text
messages
off
your
phone?
A I
always
delete
all
my
text
messages
after
I
read
them.
Q
Was
that
the
case
in
2015?
A
It's
always
been
the
case.
But
I
don't
think
I
was
texting
in
2015.
I
don't
think
I
knew
how.
It's
SHELBURNE
SHERR
COURT
REPORTERS,
INC.
(619)
234—9100
www.sscourtreporters.com
MOTION
TO
STRIKE
ANSWER
1
6
EXHIBIT D
IN THE
STATE
COURT
OF
FULTON
COUNTY
STATE
OF
GEORGIA
TERRY
HODGES,
an
Individual,
Plaintiff,
vs.
Civil
Action
No.
16EVOO4768
GORDON
REES
SCULLY
MANSUKHANI
LLP,
et
al.
Defendants.
VIDEOTAPED
DEPOSITION
OF JONI
FLAHERTY,
ESQ.
Taken
at
San
Diego,
California
March
l4,
2019
Reported
by
Dana E.
Simon
—
CSR
Certificate
No.
12683
MOTION
TO
STRIKE
ANSWER
EXHIBIT E
lO:
lO:
lO:
10:
lO:
lO:
O7:
O7:
O7:
O8:
O8:
O8:
l8
4O
49
O4
l6
27
ONU‘II-bme
lO
ll
12
13
l4
15
l6
l7
18
l9
20
21
22
23
24
25
Joni
Flaherty,
Esq.
—
3/14/2019
BY
MR.
NEEL:
Q
Did
you
search
your
personal
devices
for
text
messages?
A
No.
Q
Did
you
search
any
devices
for
text
messages?
A
No.
I
know
that
none
exist
related
to
this
case.
Q
How
do
you
know
that?
A
Because
I
don't
text
With
relationship
to
my
work.
Q
You did not
look?
A
Correct.
I
know
that
none
exist.
I'm
certain.
Q
Do
you
use
Gmail?
A
Yes.
On
a
personal
basis,
not
——
not
in
relationship
to
work.
Q
Did
you
search
your
Gmail
account
with
respect
to
any
requests
made
by
any
of
your
attorneys
for
you
to
gather
documents?
A
Yes.
Q
Did
you
search
by
search
term?
How
did
you
search?
A
Search
term.
Q
What
terms
did
you
use?
A
Hodges,
Tucker.
Q
Any
others?
SHELBURNE
SHERR
COURT
REPORTERS,
INC.
(619)
234-9100
www.sscourtreporters.com
kflDTKIN1K)STRIKEZUNSWHHR
12
EXHIBIT E
IN THE STATE COURT OF FULTON COUNTY
STATE
OF
GEORGIA
TERRY
HODGES,
an
Individual,
Plaintiff,
vs.
Civil Action No.
16EV004768
GORDON REES SCULLY MANSUKHANI
LLP,
et
al.
Defendants.
VIDEOTAPED DEPOSITION 0F ROGER
MANSUKHANI,
ESQ.
Taken at San
Diego,
California
March
13,
2019
Reported
by
Dana E.
Simon
-
CSR
Certificate N0. 12683
Motion to Strike Answer
11:
11:
11:
11:
ll:
11:
38:
38:
38:
38:
39:
39:
10
18
37
54
01
17
malmU'lohbJNH
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Roger
Mansukhani
-
3/13/2019
Q
And then he later respond
--
there's
an
exchange
between
you
and Mr.
Cominos,
right?
A Correct.
Q
Right. Are
you
aware
that
you
claim
privilege
over
this document?
A I
don't
know.
Q
Okay.
Who
in this exchange is the
lawyer
and
who's
the
client?
A I
mean,
Dion's
our
managing partner
and
I'm
a
named
partner.
But
there's
no
attorney/client
relationship
between
us
two.
Q
Okay.
And
you're
not
seeking
any
--
is
there
anything
in here that states to
you
that
you're
seeking
legal
advice
—-
A Not on
——
Q
——
that legal
advice
was
sought or rendered?
A Not on this document that
I'm
seeing.
Q
At the topmost
e-mail
--
A Correct.
Q
--
at
12:38
a.m. on
July
9th,
which
I gather is
really
just
after
midnight
going
through the
day
of
July
8th
into
the
9th,
right?
A
Probably.
SHELBURNE
SHERR
COURT
REPORTERS,
INC.
(619)
234-9100
www.sscourtreporters.com
60
Motion to Strike Answer
Exhibit
F
ll
ll
ll
ll
ll
ll
:46
:46
:47:
:47:
:47
:47
:38
:50
02
12
:50
:59
mummbme
M
N
m
N
N
m
H
H
H
H
H
H
H
H
H
H
(flabWNI—‘OKDm-JOWU'II-bLONHOLO
Roger Mansukhani
-
3/13/2019
When
Mr.
Schwartz
writes
you
back
and
Saws:
A
Right.
Correct.
Q
This is
——
you're
referring to the fact that
you're
the originating
attorney
on the Netflix
account?
A That
I'm
handling a case for
them,
yeah.
And
originating. But
I'm
handling a case.
Q
The
case
was active
at
that
point?
A It was.
Q
Employment
matter?
A
Mh—hmm.
Correct.
Q
What court was that in?
A
Probably
L.A.
Superior
Court
because
they're
based up there.
Q
Looking
at
that
exhibit,
this is again
a
document that
you've
asserted privilege over in this
matter.
A Exhibit 9?
Q
Yes. Can
you
identify
for me on that document
who's
serving as
attorney
and
who's
serving
as the
client?
A No.
Q
Can
you
identify
any
legal
advice
being
sought
SHELBURNE SHERR COURT
REPORTERS,
INC.
(619)
234-9100
www.sscourtreporters.com
64
Motion
to
Strike
Answer
Exhibit F
l1:
11:
11:
11:
11:
11:
48:
48:
48:
49:
49:
49:
01
22
45
07
22
43
m-sIONU'IstJNH
10
ll
12
13
14
15
l6
17
18
19
20
21
22
23
24
25
Roger MAnsukhani
-
3/13/2019
or rendered?
A Not on the
document,
no.
(Plaintiff's
Exhibit No. 10
was
marked.)
BY
MR.
NEEL:
Q
I'm
marking
Plaintiff's
10.
A
Okay.
Q
For the
record,
this is
PRIV
30,
3—0.
This one
we've
not seen
yet.
It's
a four
e-mail
exchange. The
earliest
of
which
states
on
July
8th
at
9:05
p.m.,
which
I
assume
is an
East
Coast
time
designation.
This
is
Mr.
Sybert
writing
you.
He
saws,
quote:
"Just
left
you
And at 6:08
p.m.,
above that
--
again,
I
assume
that's
the
West Coast time designaticn
-—
you
write
t0
Why
did
you
write
that?
A I
was
upset.
We
were
in
a
conflict
position.
SHELBURNE SHEER COURT
REPORTERS,
INC.
(619)
234-9100
www.sscourtreporters.com
65
Motion to Strike Answer
Exhibit
F
Roger Mansukhani
-
3/13/2019
11:56:31 l A I
don't
have a position one
way
or the other.
2 I
——
I
don't
know.
3
Q
Were
you
involved at all in the compiling of
4 his client file?
11:56:44
5
A I
can't
recall.
But
presumably
my
staff would
6 have been.
7
Q
Who's
on
your
staff?
8 A
Probably
my
secretary
and
my
—-
maybe
our
IT
9
person,
who would have made sure that the file was
11:57:05
10
provided.
ll
Q
In that document who
--
who is the
attorney
and
12 who is the client in that document for purposes of
your
13 privilege assertion?
l4 A
There's
no
attorney—client
privilege.
11:57:25
15
Q
What is
the
legal
advice
being
sought
or
l6 rendered in that document?
l7
A
There's
no legal advice being sought or
18
rendered,
in
my
opinion.
l9
(Plaintiff's
Exhibit No. ll was
marked.)
11:57:37
20
BY
MR.
NEEL:
21
Q
I'd
like for
you
to look at
Plaintiff's
11.
22 A
Okay.
23
Q
It's
a
one-page
document
Bates
No.
PRIV
59.
24 Take a minute and have a look. And
I'll
represent for
11:57:46
25 the record the
only
change to this from the chain we
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71
Motion
to
Strike
Answer
Exhibit
F
12:
12:
12:
12:
12:
12:
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o
Roger Hansukhani
-
3/13/2019
Q
You
don't
have
anything
—-
any
entry
in
your
conflict check sheet
that's
for
interested parties?
A Not for interested parties. Other
--
I
don't
think
so.
Other
parties,
other
defendants.
But
not
interested parties. Like that
would
--
you'd
have
to be
prescient
to
think
about
all
the
potentially
interested
parties
in
a case.
Q
Not hard to be prescient here.
You've
got a
con—
——
you've
got Tucker sells a
movie
to Netflix
—-
or
licenses a
movie
to
Netflix,
right?
A I
don't
even
know if I know
that.
Q
You
didn't
check.
That's
the point.
A He made a documented
movie,
stand—up,
and sold
it to
Netflix,
yeah.
I
mean,
I think
we
--
I
mean,
you
know what
I'm
thinking
on
this.
Q
I've
got about another hour on this.
A
I'm
good.
Yeah,
let's....
(Plaintiff's
Exhibit No. 13 was
marked.)
BY MR. NEEL:
Q
This
will
be 13. The Bates numbers are
PRIV
--
actually,
strike that.
Let's
go back
--
go back to 12
for
one
second.
A
Okay.
Q
Similar question to the other exhibits.
Who's
the
--
who's
the
attorney
and
who's
the client in these
SHELBURNE SHEER COURT
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89
Motion
to
Strike
Answer
Exhibit
F
Roger Mansukhani
-
3/13/2019
12:22:28
l
exchanges
with
respect
to
your
assertion
of
2
attorney—client
privilege?
3 A None.
There's
no
one.
4
Q
And is there
any
legal advice being rendered or
12:22:36 5 sought in this exhibit?
6
A
No.
7
Q
All right.
Now,
13. Bates PRIV
37
to
39,
8
three-page
exhibit. This is a new
e-mail
chain,
I
9
believe.
12:23:05 10 A
Okay.
ll
Q
If
you
look
at page
38,
there's
an
e-mail
from
12 Allison Hart from the
Lavely
Singer
firm,
dated
July
8th
13 at 6:50 p.m. Pacific. And it is to Mr.
Sybert
and Ms.
l4
Flaherty,
copying
Linda M. Burrow of the Caldwell Leslie
12:23:37
15
firm
and
Marty
Singer.
l6 Do
you
know who Mr. Singer is?
l7
A
No.
18
Q
Do
you
know who Ms. Burrow is?
l9 A No.
12:23:47
20
Q
Did
you
know
at
the
time
who
Ms.
Burrow
was?
21 A No.
22
Q
The
e-mail
from Ms. Hart
essentially
--
and I
23
will
paraphrase. And this is not for attribution. It
24 will speak for itself. It
says
that the case has been
12:24:06
25
removed,
and
despite
the
removal,
Ms.
Hart is of
the
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.
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.com
90
Motion t0 Strike Answer
EXMbfiF
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mummtbLQNH
10
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12
13
14
15
l6
17
18
19
20
21
22
23
24
25
Roger Hansukhani
-
3/13/2019
because
the
third
one
down
is
7:41,
which
would
make it
Pacific.
A
Correct.
Q
YOur
instruction to
Sybert
in response to his
A
Yeah.
Q
What
was
ycur
CCKC€IK about him
sending
A
I
just
wanted to review it. And if
he
was
going
to
send
something,
I
wanted
to
review
it.
And
I
was
traveling,
so that tells me I
didn't
want
to
review
--
I
couldn't
review
at this particular time.
Q
Okay.
What
were
you
going to
review
it for?
A Tone.
THE REPORTER:
I'm
sorry?
THE WITNESS: Tone.
BY MR. NEEL:
Q
This
will
be
——
and
just
take
a
quick
look.
And these
will
be the standard questions about l4 and
15.
In
14,
this is
a
document
over
which
you
asserted
privilege.
Who is the
attorney
and
who
is the client in
that
e—mail?
A
There's
no
privilege
in that
e—mail.
Q
Okay.
And do
you
see
any
effort to
seek
and/or
SHELBURNE SHERR COURT
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100
Motion to Strike Answer
Exhibit
F
Roger
Mansukhani
-
3/13/2019
13:18:17
l render legal advice?
2 A No.
3
Q
Same
questions,
just for
brevity,
with regard
4 to l5:
Basically
the same answers? No
attorney,
no
13:18:27
5 client and no privilege?
6 A Correct.
7
(Plaintiff's
Exhibit No. l6 was
marked.)
8
BY
MR.
NEEL:
9
Q
Okay.
l6,
please.
Oh,
I'm
sorry.
I
13:18:36 10
mis—stapled
something.
Sorry.
Let me pull those back.
ll
That's
for
you,
Joe.
Sorry
to toss it.
12 Mr.
Mansukhani,
this is for
you.
13 A Thank
you.
l4 MR. KINGMA: So two pages?
13:19:00 15 MR. NEEL: It should be 53 and
54,
sequential,
16 unless
I've
messed it up again.
l7
MR. KINGMA: Got it.
18
BY
MR.
NEEL:
l9
Q
This
is,
as
I
just
mentioned,
PRIV 53
and
PRIV
13:19:13 20
54. The
first
——
it
appears
to me
——
and
I'll
ask
you
21
about
this
-—
that
it is
a
—-
it's
Mr.
Sybert
sending
22
you
a
draft
e—mail
to
Ms.
Burrow
in
response
to
one
of
23 Ms.
Burrow's
earlier
e—mails,
which
we'll
go through it
24 piece
by
piece. The first page 53.
13:19:35 25 A 53?
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1
01
Motion to Strike Answer
13:
l3:
13:
13:
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53
27
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13
14
15
16
17
18
l9
20
21
22
23
24
25
Roger Hansukhani
-
3/13/2019
think
necessarily
this should be part of a client file.
BY
MR.
NEEL:
Q
How
about the first
e-mail
in the chain?
Should
that
be part of the client file?
A
Not
necessarily.
If
Hodges
already
knew
about
the amended complaint and
knew
it
didn't
mention
Netflix,
I
don't
--
I
don't
think
this
necessarily
should
be
part
of it
at
all.
Q
We spoke earlier about
your
text messages. You
had
stated
--
correct
me
if
I'm
wrong
--
you
use
an
iPhone for messaging. You use the native app?
A Correct.
Q
The
native
app
--
A Correct. The
native
app,
yeah.
Correct.
Q
You
don't
use
any
other apps for text
messaging?
A I
don't.
Q
And
whatever
backup
is
done
is
done
at
the
firm?
A Correct.
Q
All
right.
Your
predecessor
counsel
before
Mr. Kingma took the position that
-—
well,
let me ask
you
this: Did
you
search
your
text messages for
anything
responsive
to
the
doc
requests
in
this
action?
A I
don't
recall,
but
there's
zero chance I
would
SHELBURNE SHERR COURT
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117
Motion to
Strike Answer
Exhibit F
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l3:
l3:
13:
13:
51:
51:
51:
5i:
51:
52:
05
16
28
42
52
O6
wde'lu-waI—l
10
ll
12
l3
l4
15
l6
l7
18
l9
20
21
22
23
24
25
Roger Mansukhani
-
3/13/2019
have
any
test
message,
that I delete mine
always.
I
just hate having a lot of text
messages,
even from
my
wife
or
my
kids or
buddies.
Q
How
do
you
delete
them?
On
the
phone
screen?
A
Yeah,
on the phone.
Q
Does
every
partner at
your
firm delete in that
manner?
A I
have
no
idea.
Q
Okay.
Well,
we've
been
doing
our
call
for
text
messages.
We've
received
none.
We've
had
quite
a
few
discussions
about
this
in
and
out
of
court.
And
with
that said and
reserving
the right to call
you
back if we
find
anything
in
there,
I'm
done
for
the
day.
THE WITNESS:
Okay.
Thank
you.
MR. KINGMA: And I will
say
on the
record,
I'll
check again. I
don't
think there are
any,
but I
won't
--
a
lot
of this
was
done
before
I
got
involved,
so
we'll
check again.
Off the record?
MR. NEEL:
We're
done.
THE VIDEOGRAPHER: This concludes
today's
deposition of Roger Mansukhani.
Today's
date is
March
13th,
2019.
The
time is
now
1:52
p.m.
Off
the
record.
(The
deposition was concluded at 1:52
p.m.)
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118
Motion
t0
Strike
Answer
EflfibhF
