i; LINDSAY MOLNAR, ESQ (BAR NO. 272156) LAVELY SINGER PROFESSIONAL CORPORATION 2049 Century Park East, Suite 2400 Los AngeleS, California 90067-2906 Telephone: (310) 556-3501 Facsimile: (310) 556?3615 Email: mweinsten@lavelysinger.com lmolnar@lavelysinger.com I Attorneys for Plaintiff JAMES WOODS SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES JAMES WOODS, an individual, Plaintiff, VS. JOHN DOE a/k/a ?Abe List? and DOES 2 through 10, inclusive, Defendants. Case No.: BC 589746 [Hon. Mel Recana, Dept. 45] NOTICE OF MOTION AND MOTION FOR: (1) AN ORDER COMPELLING NON-PARTY KENNETH-P. WHITE To ANSWER DEPOSITION QUESTIONS AND PRODUCE AND (2) AN ORDER FOR SANCTIONS AGAINST NON-PARTY KENNETH P. WHITE IN THE AMOUNT OF $9,040.55 [Declaration of Michael E. Weinsten and Separate Statement ?led concurrently herewith] Date: December 22, 2016 Time: 8:35 am. Dept: 45 Reservation ID: 161109172908 July 29, 2015 None Complaint Filed: Trial Date: MOTION TO COMPEL T0 PLEASE TAKE NOTICE that on December 22, 2016, at 8:35 am, or as soon thereafter as the matter may be heard in Department 45 of the Los Angeles Superior Court, located at 111 North Hill Street, Los Angeles, California 90012, Plaintiff James Woods (?Plaintiff?) will, and hereby does, move the Court for an order compelling Non?Party Kenneth White (?White?) to (1) provide substantive responses without objection to the questions asked during his deposition and (2) produce documents responsive to Plaintiff?s deposition subpoena. Plaintiff brings this motion to compel White?s deposition testimony pursuant to California Code of Civil Procedure Plaintiff brings this motion after White refused, during his November 14, 2016 deposition, to answer any questions related to the actual identity of his client in this action Defendant John Doe a/k/a ?Abe List? by imprOperly asserting the attorney-client privilege and other unfounded objections. I Plaintiff will also move the Court for an order compelling White to produce documents that he was required to produce pursuant to Plaintiff?s deposition subpoena. Plaintiff will also move the Court for an order that White pay to Plaintiff the sum of no less than $9,040.55 as the reasonable costs and attorney fees incurred by Plaintiff in connection with bringing the instant Motion and taking White?s November 14, 2016 deposition. This Motion is made and based upon this Notice, the accompanying Memorandum of Points and Authorities, the Separate Statement, the Declaration of Michael E. Weinsten and any exhibits attached thereto, the court?s ?le herein, and any oral argument and other documentary evidence as may be presented at the hearing. Dated: November 30, 2016 LAVELY SINGER PROFESSIONAL CORPORATION MICHAEL E. WEINSTEN LINDSAY MOLNAR MICHAEL E. WEINSTEN Attorneys for Plaintiff JAMES WOODS 1 MOTION TO COMPEL TABLE OF CONTENTS I. I INTRODUCTION ..1 II. STATEMENT OF RELEVANT FACTS .. 2 A. Unsuccessful Motion .. 3 B. White?s Unsubstantiated Claim That AL Died During The Appeal of the Court?s Ruling .. White?s Unfounded and Bad?Faith Refusal to Answer Basic Deposition Questions and Produce Documents Concerning the Identity of His Purportedly Deceased Client .. 3 LEGAL ARGUMENT .. 5 A. A Motion To Compel Is Proper Where A Deponent Refuses To Answer Questions During The Examination 0r Produce Documents At Deposition .. 5 B. The Court Should Compel White To Answer Deposition Questions Relating to the Identity of AL Since This Information is Neither Private Nor Privileged And Is Critical To Woods? Ability To Effectively Prosecute His Claims Against AL .. 6 i. - Because Privacy Rights Died With Him, White Cannot Withhold Identity On Privacy Grounds 7 ii. Identity and Information Related To His Identity Is Not Protected By The Attorney-Client Privilege .. 8 Information Related to the Identity of AL Is Highly Relevant And Critical For Woods? To Prosecute His Claims Against AL .. 10 C. White?s Claim That Woods Is Not Entitled to Information Related to the Identity of AL Due to Fear of ?Harassment? or ?Intimidation? Is Unfounded .. 10 FAILURE TO PROVIDE ANY JUSTIFICATION FOR HIS FAILURE TO ANSWER DEPOSITION QUESTIONS AND OR PRODUCE DOCUMENTS RESPONSIVE TO THE SUBPOENA WARRANTS AN AWARD OF MONETARY SANCTIONS AGAINST HIM .. 11 CONCLUSION .. 12 i MOTION TO COMPEL TABLE OF AUTHORITIES Page[s[ Cases AF Holdings LLC v. Doe, N0. GEB GGH, 2012 WL 6042635 (E.D. Cal. 2012) ..7 Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960) ., .. 8 Beverly Hills Nat. Bank Trust Co. v. Superior Court In and For Los Angeles County, 195 Cal. App. 2d 861 (1961) ..5 Brunner v. Superior Court of Orange Cty. 51 Cal.2d 616 (1959) ..8 Doe v. Kamehameha Schools etc., 596 F.3d 1036 (9th Cir. 2010) .. 7 v. Higham, 149 Ca1.App.3d 677 (1983) ..7 Hays v. Wood, 25 Ca1.3d 772 (1979) ..2, 8, 9 Hendrickson v. California Newspapers, Inc., 48 Ca1.App.3d 59 (1975) .. 7 Kramer v. SuperiOr Court of Los Angeles County, - 237 Cal. App. 2d 753 (1965) ..6-7 Krinsky v. Doe 6, 159 Ca1.App. 4th 1154 (2008) .. 8 Lugosi v. Universal Pictures, . 25 Ca1.3d 813 (1979) .. 2,7 Moran v. Superior Court in and for Sacramento County, 38 Cal. App. 2d 328 (1940) .. 6 Pers. v. Farmers Ins. Grp. of Companies, 52 Cal. App. 4th 813 ..11 Rosso, Johnson, Rosso Ebersold v. Superior Court, 191 Cal.App.3d 1514 (1987) ..9 Tien v. Superior Court, 139 Cal.App.4th 528 (2006) .. 8, 9 United States v. Doe, 655 F.2d 920 (9th Cir. 1980) ..7 ii MOTION TO COMPEL TABLE OF AUTHORITIES Code of Civil Procedure 1987.2(a) 11 Code of Civil Procedure 2023.030(a) .. 11 Code of Civil Procedure 2025.010 .. 5 Code of Civil Procedure 2025.48.00) .. 11 Evidence Code 952 .. 9 Evidence Code 954 .. 8, 9 MOTION TO COMPEL 28- MEMORANDUM OF POINTS AND AUTHORITIES a? I. INTRODUCTION This case arises from the publication of a malicious and fabricated accusation leveled against actor James Woods (?Woods?) by an individual who hid behind the Twitter name ?Abe List? (hereafter In July 2015, AL falsely accused Woods of being a ?cocaine addict? on the widely popular social media site Twitter and, after Twitter refused to remove the libelous statement, Woods was forced to ?le suit for defamation and invasion of privacy by false light to-protect his good name and reputation. Rather than face Woods? claims on the merits, modus operandz' ?om the very beginning of thislawsuit has been to utilize various procedural roadblocks to conceal his identity from Woods and delay the prosecutionof Woods? claims. For example, shortly after Woods ?led the Complaint, AL ?led a frivolous (and ultimately unsuccessful) motion, which was clearly intended solely to prevent his identity from being disclosed. When Woods then sought to conduct discovery in cennection his Opposition of the motion, AL vehemently opposed the motion, claiming that Woods ?rst had to prove his entire primafacz?e case against AL before discovering identity. I After this Court denied and held that Woods had ?met his burden of showing a probability of prevailing? on his claims, AL ?led a frivolous appeal of thisCourt?s order, once again trying to block the disclosure of his identity and further delaying the prosecution of Woods? claims. Then, when it was finally time for AL to ?le his reply brief after Woods had already incurred the time and expense of ?ling a 50-page ReSpondents? brief counsel, Kenneth P. White (?White?), ?led a declaration with the appellate court (1) stating that his client had passed away, (2) indicating that estate would be substituting into the matter, and (3) requesting an extension of time for the filing of reply brief. However, no substitution was ever made. Instead, weeks later, White suddenly ?led a dismissal of the appeal which resulted in this case being remanded back to the trial court. Critically, although White claims that AL is deceased, he has refused to provide any evidence whatsoever substantiating this claim. Moreover, when Woods? counsel reasonably requested that White at least provide the identity of his nowfpurportedly?deceased client a fact which would be necessary in order to con?rm whether AL is actually deceased White refused. MOTION TO COMPEL related to his identity are not subject to the attorney-client privilege as these are merely facts, not *iA'stairesulh even name, Woods was forced to take White?s deposition on November 14, 2016. During this deposition, White still refused to disclose identity (or produce the relevant documents requested in the deposition subpoena), asserting the unfounded objections that such information is private, subject to the attorney-client privilege, not relevant to the claims in this lawsuit, and harassing.1 Obviously, White?s objections are meritless and in bad faith. First and foremost, right to privacy died along with him and, in any event, White cannot assert this right on his deceased client?s behalf. See Lugosi v. Universal Pictures, 25 Cal.3d 813, 820, 833 (1979) (dissenting Justices agreeing with majority that: ?It is not disputed that the right of privacy is a personal one, which is not assignable. and ceases with an individual?s death.?) (emphasis added). Second, identity and information communications. See Hays v. Wood, 25 Cal.3d 772, 785 (1979) (rejecting attorney?s claim that the identity of his clients are privileged). Indeed, Woods is unaware of even a single case where the attorney-client privilege was upheld to preclude an anonymous litigant from disclosing his name. Third, there is no question that identity is relevant to Woods? ability to effectively prosecute his claims, conduct discovery and obtain a judgment against a known person even more so in light of the fact that the Court has already found Woods has a ?probability of prevailing? on his claims. Indeed, if White is unwilling to substantiate his claim that AL is deceased, Woods is entitled to investigate whether this claim is true. 2 Lastly, information related to identity is clearly not being requested for purposes of ?harassment? or ?intimidation,? nor has White has'offered any factual or legal support for such an absurd objection (nor does any such support exist). 1 Making alleged death even more suspicious, White admitted in his deposition that he never saw alleged death certi?cate. See, cg, Declaration of Michael E. Weinsten, 116, Ex. at 16:13-15 have not reviewed a death certi?cate of Abe List?). 2 Notably, White has previously informed Woods? counsel that AL lied about many things, including information on Twitter pro?le. These prior lies make it even more important to get proof that AL is in fact deceased. 2 MOTION TO COMPEL 41denying his -. - answer the deposition questions set forth in the concurrently-?led Separate Statement, as well as produce documents responsive to the Subpoena. II. STATEMENT OF RELEVANT FACTS A. Unsuccessful Motion On July 29, 2015, Woods ?led the instant lawsuit against AL for defamation and invasion of privacy by false light. On September 2, 2015, AL ?led an motion claiming that the defamatory tweet at issue was protected by the First Amendment and that Woods could not prevail on his claims because the tweet was not a statement of fact, but, instead, mere ?rhetorical hyperbole? and ?insult.? On February 8, 2016, the Court denied motion, ?nding that Woods had ?met his burden of showing a probability of prevailing? on his claims for defamation and invasion of privacy. On February 11, 2016, AL filed a Notice of Appeal of the Court?s February 8, 2016 order B. White?s Unsubstantiated Claim That AL Died During The Appeal of the Court?s Ruling. On August 26, 2016, while appeal was pending, Woods? counsel received an email from White stating that there had been a ?development in the Woods v. Doe matter,? and requesting a time to speak. Declaration of Michael E. Weinsten (?Weinsten Ex. A. During a telephone that same day, White informed Woods? counsel that AL had purportedly died. Weinsten Decl., White, however, would not respond to any of Woods? counsel?s questions regarding the identity of AL, or how or when AL allegedly died. Id. White also refused to provide any actual documentary evidence that AL is deceased. Id. Shortly thereafter, on October 21, 2016, AL (or estate), dismissed the pending appeal. C. White?s Unfounded and Bad?Faith Refusal to Answer Basic Deposition Questions and Produce Documents Concerning the Identity of His Purportedlv Deceased 911nm On November 3, 2016, Woods issued and served a Deposition Subpoena for Personal 3 MOTION TO COMPEL 43mm Appearancerand Ex. B. In addition to testimony, the Subpoena sought the production of the following categories of documents: 0 DOCUMENTS suf?cient to IDENTIFY John Doe a/k/a ?Abe List?, your client and the defendant in the lawsuit captioned James Woods v. John Doe a/ida ?Abe List which is pending in Los Angeles Superior Court, Case No. BC589746. DOCUMENTS suf?cient to IDENTIFY John Doe a/k/a ?Abe List.? the personal representative of the estate of Weinsten Decl., 13, Ex. B. On November 9, 2016, White served written objections to the Subpoena. Weinsten Decl., 114, EX. C. On the same day, White also informed Woods? counsel by phone that he Would not answer questions at the deposition that would disclose the identity of AL. Weinsten Decl., 115, Ex. D. However, White was ambiguous as to whether he would answer other questions. Id. On November 10, 2016, Woods? counsel sent White a meet and confer letter explaining that White?s ?objections to the Subpoena were unfounded because the identity of his client was not subject of the attorney?client privilege or private information. Weinsten Decl., 115, Ex. D. White never responded to this letter. Weinsten Decl., 115. On November 14, 2016, Woods took White?s deposition pursuant to the Subpoena. Weinsten Decl., 116, Ex. E. During his deposition, White to respond to the following questions, among others: I ?What is the legal name of your client?? Weinsten Decl., 116, Ex. at 7:7. 0 ?What is the name of his heir?? Weinsten Decl., 116, Ex. at 8:12. ?What was Abe List?s residential address when he passed away?? Weinsten Decl., 116, Ex. at 31 :14-15. - ?[D]id Mr. Abe List live in Los Angeles, California?? Weinsten Decl., 116, Ex. at 26:13-14. 0 ?Other than the handle ?Abelisted? are there any other Twitter accounts under other handles that were owned or managed by Abe List?? Weinsten Decl., 116, Ex. at 39:68. 4 MOTION TO COMPEL ?Who informedyou that Abe List had passed?? Weinsten Decl., 116, Ex. at 14:2. 0 ?Would that be Abe List?s father?? Weinsten Decl., 116, Ex. at 14:8. 0 ?So just to be clear, you are not going to give me the name of the personal representative of Abe List?s estate?? Weinsten Decl., 116, EX. at 14:14-12. I ?Where did Mr. Doe pass away? Weinsten Decl., 16, Ex. at 15:15. 0 ?How old was Abe List when he passed away?? Weinsten Decl., 116, Ex. at 17:16. 0 ?Was Abe List married?? Weinsten Decl., 116, at 23 0 ?Did Abe List live in Los Angeles, California, when he passed away?? Weinsten Decl., 116, Ex. at 26:21-22. . - White?s counsel objected to the above questions on the grounds that they purportedly seek information that is (1) protected by the attorney-client privilege, (2) ?not reasonably calculated to lead to admissible evidence,? and (3) designed to ?harass, intimidate third parties and/or deceased Weinsten Decl., 116, EX. at 7:8-22i White also failed and re?ased to bring any of the documents requested in the subpoena to the deposition. Weinsten Decl., 116. Efforts to ?n'ther meet and confer continued throughout White?s deposition, wherein Woods? counsel sought legal authority in support of White?s objections, but was provided none. See, e. Weinsten Decl., 116, Ex. at 7:23-8:4. LEGAL ARGUMENT A. A Motion To Comnel Is Proper Where A Deponent Refuses To Answer Questions During The Examination 0r Produce Documents At Deposition ?Any party may obtain discovery by taking in California the oral deposition of any person, including any party to the action.? Cal. Civ. Proc. Code 2025.010. ?It is established that a litigant has the right to take a proper deposition, and to receive reSponsive answers to proper the purposes of discovery or for use as evidence, or for both purposes.? Beverly Hills Nat. Bank Trust Co. v. Superior Court In and For Los Angeles County, 195 Cal. App. 2d 861, 864-865 (1961) (citations omitted). Indeed, ?a deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, or to the claim or defense of any other party.? Kramer v. Superior Court ofLos 5 MOTION TO COMPEL -. .- 0111.3 \Dmumm-hAngeless?ounty; 555 6% la-9659a-wseeunlso COB may obtain? discovery that is relevant if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence?) ?The statute authorizing the taking of depositions. .. should be liberally construed to the end that a litigant in a pending action may be afforded a reasonable opportunity to procure available testimony in support of his cause.? Moran v. Superior Court in andfor Sacramento County, 38 Cal. App. 2d 328, 334 (1940). ?If a deponent fails to answer any question or to produce any document. . .under the deponent?s control that is specified in the deposition notice or a deposition subpoena, the party seelging discovery may move the court for an order compelling that answer or production.? CCP 2025 .480(a). ?If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.? CCP As set forth below and in Woods? Separate Statement ?led herewith, White?s objections to Woods? deposition questions and White?s objections to Woods? document requests are without merit and the answers and production sought are relevant to the issues in this litigation. As such, Woods submits that Mr. White should be compelled to provide answers to the deposition questions set forth herein and produce responsive documents to the Subpoena. B. The Court Should Compel White To Answer Deposition Questions Relating to the Identity of AL Since This Information is Neither Private Nor Privileged And Is Critical To Woods? Ability To Effectively Prosecute His Claims Against AL. Mr. White has refused to produce responsive documents and answer critical questions at his deposition relating to the identity of his purportedly-deceased client on the grounds that such information is somehow (I) protected by the right to privacy, (2) protected by the attorney-client ?not reasonably calculated to lead to admissible evidence,? and (4) intended to ?harass, intimidate third parties and/or deceased For the reasons set forth herein, White?s objections are meritless and his testimony, as well as the production of responsive documents, should be compelled. 6 MOTION TO COMPEL Identity On Privacy Grounds White has refused to produce documents responsive to the Subpoena on the baseless ground that the documents are ?protected by the right to privacy and anonymity.? Weinsten Decl., 114, Ex. at 2:13- l4, 24-25. First, assuming AL is actually deceased (which is not conceded), he no longer has any right to privacy. More speci?cally, it is well settled that the right of privacy does not survive but dies with the person. See Lugosi v. Universal Pictures, 25 Cal.3d 813, 820, 833 (1979) (dissenting Justices agreeing with majority that: ?It is not disputed that the right of privacy is a personal one, which is not assignable and ceases with an individual?s death?) (emphasis added); Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59, 62 (1975). Further, ?the right to privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been Hendrickson, 48 Cal.App.3d at 62; v. Higham, 149 Cal.App.3d 677 (1983) (children of deceased actor Errol cannot sue author of biography of for defamation or invasion of privacy because the right of privacy cannot be asserted by anyone other than the person whose privacy has been invaded). Thus, White cannot assert such a right on AL is behalf. Second, AL does not have (and never had) the right to proceed anonymously in this lawsuit. Under California law, a litigant who has voluntarily appeared and submitted to the jurisdiction of the court has a very high burden ?to satisfy in order to remain anonymous. A general ?presumption exists that cases will be litigated with the true identities of the parties set forth on the record, and a court may not disregard that presumption.? AF Holdings LLC v. Doe, No. GEB GGH, 2012 WL 6042635, at *2 (ED. Cal. 2012) (emphasis. added) (denying defendant?s right to litigate anonymously.) This presumption is based on, among other things, the public interest in an open court system, including the public?s right to know the identity of parties to a lawsuit. See Doe v. Kamehameha Schools etc, 596 F.3d 1036, 1042-43 (9th Cir. 2010) (?We are sympathetic to the concerns of the Doe children and their parents, but we recognize the paramount importance of open courts?) California courts only allow parties to use pseudonyms in the ?unusual case? when nondisclosure of the party?s identity ?is necessary to protect a person from harassment, injury, ridicule or personal embarrassment.? United States v. Doe, 655 F.2d 920, 922 (9th Cir. 1980) (?We recognize 7 MOTION TO COMPEL than thes-ident-i-tyrof concealedeexoeptwin-ean. .. unusual case, where there is a need for the cloak of anonymity?). Here, AL has never established (and neither has White) the extraordinary circumstances required for a litigant to remain anonymous.3 In light of the above, White cannot refuse to answer questions of produce documents that relate to the identity of AL on privacy grounds. ii. Identity and Information Related To His Identity Is Not Protected. By The Attorney-Client Privilege Contrary to White?s claims, identity and information related to his identity is not subject to the attorney?client privilege. See Hays, 25 Cal.3d at p. 785 (?It is well established that the attorney-client privilege, designed to protect communications between them, does not ordinarily protect the client?s identity?); fen v. Superior Court, 139 Cal.App.4th 528, 537 (2006) (same); Brenner v. Superior Court of Orange Cty. 51 Cal.2d 616, 618 (1959) is the general rule that an attorney is not privileged to withhold disclosing by whom he has been employed?). To the contrary, California courts have acknowledged that once litigation is commenced, a litigant should not be required ?to struggle in the dark against unknown forces,? even if this means disclosing the name of a client who wishes to remain anonymous. See Baird v. Koerner, 279 F.2d 623, 630 (9th Cir. 1960) (?There is it is at times vital to the administration of ustice to require disclosure of a client?s name?) The attorney-client privilege is ?a privilege to refuse to disclose, and to prevent another from disclosing, a con?dential communication between client and lawyer.? See Evid.Code, 954 (emphasis added). [C]onf1dential communication between client and lawyer? means information transmitted between a client and his or her lawyer in the course of that relationship and in con?dence by a means which. . .discloses the information to no third persons other than those who are present to further the 3 Based on previous ?lings with the Court in this action, AL has effectively conceded this point. For instance, in opposing Woods? prior motion to conduct discovery, AL cited Krinsky v. Doe 6, 159 I Cal.App. 4th 1154 (2008) for the proposition that a defamation plaintiff can only pierce the anonymity of an internet speaker if it makes a prima facie case. See 159 Cal.App.4th at p. 1171 (holding that a libel plaintiff seeking to compel disclosure of an anonymous speaker?s identity must (1) give notice to the anonymous speaker and (2) ?make a prima facie showing of the elements of libel. . Thus, because Woods has now made such a primafacie showing (con?rmed by the Court when it denied motion), own?cited authorities allow Woods to discover identity. 8 MOTION TO COMPEL the lawyer in the course of that relationship.? Evid.Code, 952 (emphasis added). Here, legal name does not ?t within the purview of Evid. Code, 954, as it is not a ?communication? made in confidence. There is no question that someone?s legal name is no_t ?confidential??--it is known by many pe0ple outside the sc0pe of any attorney-client privilege communications. Moreover, disclosing the identity of AL, or information related to his identity, would not diSClose the contents of any legal advice obtained by AL (or estate). Woods is not asking for I any communications that AL had with White regarding his identity. Indeed, Woods is not aware of a single ease where a court has allowed an attorney of a deceased client who is a party to a lawsuit to withhold the identity of his client on privilege grounds. Furthermore, the extremely limited exceptions to the general rule that client identities are not privileged are inapplicable here. First, there is no reason to believe that disclosing the identity of AL (or his estate?s personal representative) might implicate AL in unlawful activities or expose him to criminal or civil liability. See Tieri, 139 Ca1.App.4th at 537; Hays, 25 Cal.3d at 785. Considering that AL has already been sued by Woods, there is no risk in exposing him to any ?civil liability? beyond what he is already facing. Moreover, there is no risk of exposing AL to criminal liability since Woods? allegations are not criminal in nature. Thus, this exception does not apply. Second, this is not a situation where ?known facts regarding an attorney?s representation are such that the disclosure of the client?s identity would betray personal, con?dential information regarding the client.? Tiers, 139 Ca1.App.4th at 537-538. (holding trial court?s discovery order compelling disclosure of the names of- class members who contacted plaintiffs? counsel did not violate attorney?client privilege because disclosing the names would not ?disclose any personal, con?dential information?) The identity of AL or information related to the identity of AL does not constitute ?personal, con?dential information? because, as stated above, name is not con?dential?it is known by virtually everyone that has met not solely his attorneys. Moreover, the disclosure of this information would not ?betray a con?dential communication? because someone?s legal name is not a ?confidential communication? it is a fact, plain and simple. See Tieri, 139 Ca1.App.4th at 538; cf. Rosso, Johnson, Rosso Ebersold v. Superior Court, 191 Cal.App.3d 1514, 1518 (1987) (refusing to order disclosure of 9 MOTION TO COMPEL to-xwomen?whothauetsu?fered .5 injury from use of an intrauterine device because ?revealing their names would reveal the nature of a medical problem, ordinarily considered a con?dential communication?). Information Related to the Identity of AL Is Highlv Relevant And Critical For Woods? T0 Prosecute His Claims Against AL Woods is entitled to discover the identity of AL. It is indisputable that identity is critical and relevant to Woods? ability to investigate and gather information to prosecute his claims against AL. Indeed, California courts have recognized that the constitutional right to anonymity. . .a libel plaintiff has a legitimate competing interest in discovering an anonymous speaker?s identity in order to effectively prosecute the libel claim.? Doe 2, 206 Cal. App. 5th at p, 1311. Moreover, because White has refused to provide any evidence substantiating his claim that AL is deceased, Woods requires name in order to conduct his own investigation into the issue. Lastly, Woods cannot obtain (or collect) a judgment against a ?John Doe.? Thus, he needs identity to obtain a collectable judgment against him. C. White?s Claim That Woods Is Not Entitled to Information Related to the Identity of AL Due to Fear of ?Harassment? or ?Intimidation? Is Unfounded I Lastly, White has to provide the identity of AL based on the baseless claim that this information is sought to ?harass, intimidate [unnamed] third parties and/or deceased Weinsten Decl., 116, Ex. at 7:13?15. This is ridiculous. First of all, {If AL is in fact deceased (as White contends), he cannot as a matter of fact (and common sense) be ?harassed? or ?intimidated. Moreover, White does not indicate who the ?third parties? are that would purportedly be ?harassed? or ?intimidated? should the identity of AL be disclosed. Instead, White?s objections are baseless and designed to further obstruct Woods? ability to prosecute his claims. White provides zero evidence that Woods intends to use this information for any other purpose than to prosecute his claims in this lawsuit. As such, White should be compelled to respond to the deposition questions and produce. responsive documents. 10 MOTION TO COMPEL ANSWER DEPOSITION QUESTIONS AND OR PRODUCE DOCUMENTS RESPONSIVE TO THE SUBPOENA WARRANTS AN AWARD OF MONETARY SANCTIONS AGAINST HIM Pursuant to Code of Civil Procedure section 2025,4800), where a court concludes that a deponent improperly refused to answer deposition questions, the court must impose monetary sanctions unless the court ?nds that the losing party ?acted with substantial justi?cation? or that there are other circumstances that make the imposition of sanctions?improper. California courts may also impose a monetary sanction against a deponent engaging in the misuse of the discovery process by failing to respond to a subpoena. See Cal. Code of Civ. Pro. 2023.030(a) (?The court inay impose a monetary sanction ordering that one engaging in the misuse of the discovery process. . .pay the reasonable expenses, including attorney?s fees, incurred by anyone as a result of that conduct?). A nonparty opposing a motion to compel compliance with a Subpoena without substantial justi?cation is also subject to sanctions. See Cal. Code of Civ. Pro. 1987.2(a) (?the court may in its discretion award the amount of the reasonable expenses incurred in making . . . the motion, including reasonable attorney?s fees, if the court ?nds the motion was . . . opposed in bad faith or without-substantial justification?); 2020.030; 2025.480; see c1130 Pars. v. Farmers Ins. Grp. of Companies, 52 Cal. App. 4th 813, 818 (The Code ?authorizes service of a deposition subpoena for the production of documents on a nonparty witness and . . . authorize[s] punishment for ?re?asal . . . to produce? documents requested in the subpoena?) (emphasis added) '11 Here, White?s re?rsal to answer Woods? deposition questions was without substantial justi?cation and constituted a misuse of the discovery process pursuant to CCP 2023.010(d) and As such, monetary sanctions are warranted to compensate Woods for the reasonable costs and fees associated with the motion and deposition. As set forth in the accompanying declaration, the total fees and costs that Woods will incur in connection with this motion are no less than $9,040.55. Weinsten Decl., 11117?9. 11 MOTION TO COMPEL rooNoLusroN For the reasons stated herein and in Woods? Separate Statement ?led concurrently herewith, White has unjusti?any refused to answer relevant questions during his deposition and produce the relevant documents speci?ed in the Subpoena. As such, Woods respectfully requests that the Court issue an Order directing White to appear and answer the questions set forth in Woods? Separate Statement and to produce all documents speci?ed in the Subpoena at 10:00 am. on January 5, 2017. Woods also respectfully requests that the Court award monetary sanctions against White and in favor of Woods in the sum of $9,040.55. Datedt November 30, 2016 LAVELY SINGER PROFESSIONAL CORPORATION MICHAEL E. WEINSTEN LIN SAY MOL AR By: MICHAEL E. WEINSTEN Attorneys for Plaintiff JAMES WOODS 12 MOTION TO COMPEL 2 1. I am an attomey at law duly quali?ed to practice before the Courts of the State of 3 California. I am a member of Laver Singer Professional Corporation, attorneys of record for 4 Plaintiff JAMES WOODS (?Woods?) in this action. The facts stated herein are true and correct and of 5 my own personal knowledge, and if called and sworn as a witneiss, I could and would testify 6 competently thereto under oath. 7 2. Attached hereto as Exhibit is a true and correct copy of an August 26, 2016 email 8 that I received from Kenneth White (?White?), counsel for Defendant JOHN DOE a/k/a ?Abe List? 9 in this action. That same day, during a telephone call with my associate Lindsay Molnar, White 10 claimed that AL had died. However, White would not respond to any of Mrs. Molnar?s questions 11 regarding the identity of AL, or how or when AL allegedly died. White also refused to provide any 12 actual documentary evidence that AL was deceased. 13 3. On November 3, 2016, my ?rm issued and served a Deposition Subpoena for Personal 14 Appearance and Production of Documents and Things (the ?Subpoena?). on White. A true and correct 15 copy of the Subpoena is attached hereto as Exhibit 16 On November 9, 2016, White served written objections to the Subpoena, a true and 17 correct copy of which is attached hereto as Exhibit 18 5. Attached hereto as Exhibit is a true and correct copy of a November 10, 2016 letter 19 sent by Ms. Molnar to White. White never responded to this letter. 20 6. On November 14, 2016, Mrs. Molnar took White?s deposition pursuant to the Subpoena. 21 White failed and refused to bring any of the documents requested in the Subpoena to the deposition. A 22 true and correct copy of relevant excerpts from the certi?ed transcript of White?s deposition is attached 23 hereto as Exhibit 24 7. Woods has incurred and will incur reasonable costs and attorney fees in connection with 25 Whiteis deposition and the bringing of this Motion in the amount of $9,040.55, consisting of the 26 following: I 27 Motion ?ling fee - $60.00 28 Process server fee - $70.00 13 MOTION TO COMPEL - $59 8105 Attorney fees - $8,312.50 8. At the hourly billing rate of $375.00, Mrs. Molnar has spent nine (9) hours meeting and conferring with White, taking White?s deposition, and drafting this motion, for a total of $3,375.00 in attorney fees. Additionally, at the hourly billing rate of $400.00, my associate David B. Jonelis has spent ?ve (5) hours drafting and revising this motion, fora total of $2,000.00 in attorney fees. Additionally, at the hourly billing rate of $625.00, I spent one and a half (1.5) hours reviewing and revising this motion, for a total of $937.50 in attorney fees. I 9. Based upon my experience, I anticipate that Mr. onelis will spend an additional ?ve (5) hours preparing the reply to this motion and attending the hearing on this motion, for a total of $2,000.00 in attorney fees. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 30th day of November, 2016, at Los Angeles, California. MICHAEL E. WEINSTEN l4 MOTION TO COMPEL On Aug 26, 2016, at 1:09 PM, Kenneth White wrote: Michael and Lindsay: There?s been a development in the Woods v. Doe matter that I?d like to bring to your attention. I hope that it will permit a resolution. I know you have a brief clue soon and I?ll stipulate to extending the time to file it while i brief you on it. Please let me know when you are available to talk. Ken White Kenneth P. White Brown White Osborn LLP 333 5. Hope Street, Suite 4000 Los Angeles, CA 90071 Phone (213) 613?9446 Fax (213) 613?0550 FOR COURT USE ONLY ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): E. BAR NO. 155680) ?(By LAVELY SINGER, P.C. 2049 Century Park East, Suite 2400 Los Angeles, California 90067-2906 TELEPHONE NO: (310) 556?3 501 FAX N0. (Optional): (310) 5 56-3615 EMAIL ADDRESS (Optional): mweinsten@lavelysingencorn ATTORNEY FOR {Name}: Plaintiff James Woods I SUPERIOR COURT OF CALIFORNIA, COUNTY OF Los Angeles STREET ADDRESS: 111 N. Hill Street MAILING ADDRESS: ll 1 N. Hill Street CITY AND ZIP CODE: Los Angeles, CA 90012 BRANCH NAME: Stanley Mosk Courthouse Woods olm Doe a/k/a "Abe List", et a1. DEPOSITION SUBPOENA CASE FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS BC589746 THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of depenenr, Kenneth P. White, Brown White Osborn LLP, 333 South Hope Street, 40th Floor, Los Angeles, California 90071 1. YOU ARE ORDERED T0 APPEAR IN PERSON TO TESTIFY AS A WITNESS in this action at the following date, time, and place: Date: November 14, 2016 Time: 11:00 am. Address: LAVELY SINGER, P.C. . 2049 Century Park East, Suite 2400, Los Angeles, California 9006'? a. As a deponent who is not a natural person, you are ordered to designate one or more persons tO testify on your behalf as to the matters described in item 4. (Code Civ. Proc., 2025.230.) b. You are ordered to produce the documents and things described in item 3. c. This deposition will be recorded stenographically through the instant visual display of testimony and by audiotape videotape. d. This videotape deposition is intended for possible use at trial under Code of Civil Procedure section 2. The personal attendance of the custodian or other quali?ed witness and the production Of the original records are required by this subpoena. The procedure authorized by Evidence Code sections 156003). 1561, and 1562 will not be deemed sufficient compliance with this subpoena. 3. The documents and things to be produced and any testing or sampling being sought are described as follows: See Attachment 3. Continued on Attachment 3. 4. 1f the witness is a representative of a business or other entity, the matters upon which the witness is to be examined are described as follows: Continued on Attachment 4. 5. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER CODE OF CIVILPROCEDURE SECTION 1985.3 OR 1985.6 AND A MOTION TO OUASH OR AN OBJECTION HAS BEEN SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEE RECORDS. 6. At the deposition, you will be asked questions under oath. Questions and answers are recorded stenographically at the deposition; later they are transcribed for possible use at trial. You may read the written record and change any incorrect answers before you Sign the deposition. You are entitled to receive witness tees and mileage actually traveled both ways. The money must be paid, at the option of the party giving notice of the deposition, 'either with service of this subpoena or at the time of the deposition. Unless the court orders or you agree otherwise, if you are being deposed as an individual, the deposition must take place within 75 miles of your residence or within 150 miles of your residence if the deposition will be taken within the county of the court where the action is pending. The location of the deposition for all deponents is governed by Code of Civil Procedure section 2025.250. DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF $500 AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY. Date issued: November 9, 2016 (SIGNATURE OF PERSON ISSUING SUBPOENA) Lindsay Molnar. Esq. A evs for Plaintiff James Woods (TYPE 0R PRINT Proof of service on reverse} Page 1 of 2 DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE ?Wed? 2020-51?- AND PRODUCTION OF DOCUMENTS AND THINGS SO 118 Form Adopted for Mandatory Use Judicial Council of California [Rev. January 1. 2009] SUBP-020 PLAINTIFFIPETITIONER: James Woods DEFENDANTIRESPONDENT: John Doe afk/a "Abe List", et a1. CASE NUMBER: BCS 89746 Ht"; PROOF OF SERVICE OF DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS 1. I served this Deposition Subpoena for Personai Appearance and Production of Documents and Things by personally delivering a copy to the person served as follows: a. Person served (name): b. Address where served: 0. Date of delivery: (I. Time of delivery: IMtness fees and mjhaage both ways (check one): (1) were paid. Amount0.00 (2) were not paid. (3) I:l were tendered to the witness's public entity employer as required by Government Code section 680972. The amount tendered was (specify0.00 f. Fee for service0.00 2. I received this subpoena for service on (date): 3. Person sewing: - Not a registered California process server California sheriff or marshal Registered California process server Registered professional photocopier I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: (SIGNATURE) CI Employee or independent contractor of a registered California process server Exempt from registration under Business and Professions Code section 22350(b) Exempt from registration under Business and Professions Code section 22451 Name, address, telephone number, and, if applicable, county of registration and number: (For Caiifornia sheriff or marshal use only) I certify that the foregoing is true and correct. Date: (SIGNATURE) SUBP-O20 [Rev January 1, 2009] PROOF OF SERVICE Page zorz DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS ATTACHMENT 3 DEFINITIONS 1. The term or as_used herein shall mean and refer to all writings (whether electronic or hard copy) as de?ned by California Evidence Code section 250, and further includes any and all originals as de?ned by California Evidence Code section 255 and any and all duplicates as de?ned by California Evidence Code section 260, as well as all drafts prepared at any time in connection with such DOCUMENTS, within YOUR possession, custody and/or control and/or YOUR agents, attorney, accountants and/or any other PERSON who may act onihilsrbehalfy excepting only those DOCUMENTS which are privileged or?otherwise protected from discovery. - 2. Without limiting the foregoing, the term or as used herein also includes all written, typewritten, printed, electronic and graphic materials of any kind or nature, including, but not limited to, correspondence, notes, memoranda, telegrams, cables, telexes, telecopies, electronic messages and attachments (including but not limited to email messages and attachments transmitted, received or maintained via websites or internet service providers such as Hotmail, Gmail, Earthlink, AOL, Cox, Yahoo, ATT, Comcast, Verizon, Sprint, or any other provider or account) (also including any messages, posts, instant messages, emails, or status updates of any sort sent, received, posted, and/or transmitted via Faeebook.com, Twitter.com, MySpace.com, or other internet websites or social networking services), instant messages, text messages, messages, weblog posts, posts andfor messages made on the internet or any website, publications, contracts, agreements, insurance policies, minutes, interof?ce communications, offers, charts, papers, records, reports, analyses, studies, books, calendars, diaries, appointment books, statements, complaints, ?lings with any court, tribunal or governmental agency, internal investigations, plans, bylaws, corporate minutes, ledgers, transcripts, summaries, agendas, audits, work orders, repair orders, bills, invoices, receipts, estimates, ?nancial records, ?nancial statements, account statements, con?rmations, performance evaluations, personnel ?les, diplomas, certi?cates, instruction manuals, policy manuals, bulletins, advertisements, periodicals, accounting records, checks, check stubs, check registers, canceled checks, bank statements, money orders, negotiable instruments, sound recordings, ?lms, photographs, mechanical or electronic recordings, tapes, transcriptions, any records of any 1 ATTACHMENT 3 statement, conversation, telephone call, meeting, event or activity, computer program(s) and data and data processing cards. As used herein, the term should be construed in its broadest possible sense to include all types of documents and as de?ned by California Evidence Code Section 250, all forms of information retained on any computer or other electronic or magnetic media or memory, all computer diskettes, drives, ?ash drives, cellular phones, and other memory apparatus containing such information, and any other graphic, printed or typed material of any nature or kind whatsoever. 3. it relates to a Person, shall mean to state the Person?s full name, last known address, last known telephone number, last known company for whom that Person worked, and the Person? 3: position with that company. As it relates to a Document, shall mean to state the type and title of the Document, its subject matter and bates number, and who has possession, custody or control of it. 4. The terms and as used herein shall mean and include every manner or means of disclosure, transfer, communication, or exchange of data and/or information, whether orally, electronically, by DOCUMENT, or in any other manner or whether face to face or by telephone, mail, facsimile, electronic mail, text message, internet posting, personal delivery, or otherwise. REQUESTS FOR PRODUCTION 1. DOCUMENTS sufficient to IDENTIFY John Doe a/k/a ?Abe List?, your client and the defendant in the lawsuit captioned James Woods v. John Doe (rt/Ida ?Abe List?, which is pending in Los Angeles Superior Court, Case No. BC589746. 2. DOCUMENTS suf?cient to IDENTIFY the personal representative of the estate of John Doe a/k/a ?Abe List.? 2 ATTACHMENT 3 BROWN WHITE OSBORN LLP KENNETH P. WHITE (Bar No. 173993) 333 South Ho Street, '40?h?Floor Los Angeles, alifornia 900714406 Telephone: 213. 613.0500 213.613.0550 Attorneys for subpoenaed non-party, KENNETH P. WHITE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT JAMES WOODS, Case No.: BCS 89746 Plaintiff, V. KENNETH P. OBJECTION TO DEPOSITION - JOHN DOE, ET AL. SUBPOENA FOR PERSONAL . APPEARANCE AND PRODUCTION Defendants. OF DOCUMENTS AND THINGS Date: November 14, 2016 Time: 10:00 am. Place: Lavel?r Sin er, RC. 2049- entury ark East, Ste. 2400 Los Angeles, CA 90067 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 1 PLEASE TAKE NOTICE that non-party Kenneth P. White hereby obj eets to the Deposition Subpoena for Personal Appearance and Production of Deeuments and Things, served by Plaintiff James Woods as follows: 1 NON-PARTY KENNETH OBJECTION 'l'O SUBPOENA PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS THINGS II I .29 I i? it?- Mb.) OBJECTION TO DEPOSITION NOTICE Non?party Kenneth P. White objects to the notice of deposition on the grounds that it represents an attempt to depose-him on subjects protected by the attorney-client privilege, and is not reasonably calculated to lead to discoverable evidence for use in the case. Its purpose is to harass Mr. White, the late Mr. Doe?s family, and to attack the late Mr. Doe's name. OBJECTION TO REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION No. 1.: DOCUMENTS sufficient to IDENTIFY ohn Doe a/kla ?Abe List?, your client and the defendant in the lawsuit captioned James woods v. John Doe a/k/a "Abe List?, which is pending in Los Angeles Superior Court, Case No. BC589746: OBJECTION T0 REQUEST FOR PRODUCTION N0. 1.: Non-party Kenneth P. White responds as follows: Non?party objects that the request seeks documents protected by the right to privacy and anonymity. Non-party objects that the request is not reasonably calculated to lead to discoverable evidence. for use in the case. Rather, the purpose is to harass Mr. White, the late Mr. Doe?s family, and to attack the late Mr. Doe?s name. Non-party objects that the requeSt seeks information covered by the attorney~client privilege. Without waiving the ?rst tWo objections-Non party rests- on the latter objection and will not produce documents. REQUEST FOR PRODUCTION DOCUMENTS suf?cient to IDENTIFY the personal representative of the estate of John Doe a/k/a ?Abe List.? OBJECTION T0 REQUEST FOR PRODUCTION N0. 1.: Non-party Kenneth P. White reSponds as follows: Non-party objects that the request seeks documents protected by the right to privacy and anonymity. Non-party objects that the request is not reasonably calculated to lead to discoverable evidence. Rather the purpose is to harass Mr. White, the late Mr. Doe?s family, and to attack the late Mr. Doe?s name. Non?party objects that the request seeks information covered by the attorney-client privilege. NON-PARTY KENNETH P. 0B3 ECTION '1?0 DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS Without waiving the ?rst two objections, Non party rests on the latter objection and will not 2 produce documents. 3 DATED: November 9, 2016 BROWN WHITE OSBORN LLP 4 I 5 6 KENNETH P. WHITE Attorneys for subpoenaed non-party, 7' KENNETH P. WHITE 8 9 10 11 12 y?u. ON ?31" 5; NH NON-PARTY KENNETH P. OBJECTION TO DEPOSITION FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS .. Fi? PROOF OF SERVICE STATE OF COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within action. My business address IS 333 South Hope Street, 40"h Floor, Los Angeles, California 90071. On November 9, 2016, I served the following document 3% described as: NON- PARTY KENNETH P. OBJECTION TO DEPO TION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS in this action by placing true cepies thereof enclosed in sealed envelopes and/or packages addressed as follows: Michael E. Weinsten Tel.: E3 1.0; 5 56-3 501 Laver Singer, P.C. Fax: 310 556-3615 2049 Century Park East, Ste. 2400 Plaintiff Los Angeles, CA 90067 James oods BY MAIL: I de osited such envelo in the mail at 333' South Hope Street, 40th Floor, Los Ange es, California 9007?. The envelope was mailed with postage thereon fully prepaid. I am ?readily familiar? with the firm?s practice of collection and processing correspondence for mailing. It is deposite with the US. Postal Servme on that same day int ordinary course of business. I am- aware that on motion of the party served, service is resumed invalid if ostal cancellation date or postage meter date is more than one (8 day after date of eposit for mailing in af?dav1t. El BY FACSIMILE: I served said document(s) to be transmitted by facsimile pursuant to Rule 2008 of the California Rules of Court. The tele hone number of the sending facsimile machine was 213/613?0550. The name(s) an facsimile machine telephone number(s) of the person(s) served are set forth in the service list. El BY OVERNIGHT DELIVERY: I served such envelope or ackage to be delivered on the same day to an authorized courier 0r driver authorized the overnight service carrier to receive documents, in an envelope or package designated by the overnight 'serv1ce carrier. BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the above addresseets). BY ELECTRONIC MAIL: On the above-mentioned date, from Los Angeles, California, I caused each such document to be transmitted electronically: to the party(ies) at the e-mail address(es) indicated below. To the best of my nowledge, the transmission was reported as complete, and no error was reported that the electronic transmission was not completed. IE STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 9, 2016, at Los An 'wtnyerez?V/y 4814-8513-2092. v. 1 KENNETH P. TO SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS LAVELY 8: SINGER PROFESSIONAL CORPORATJON JOHN H. LAVELY. JR. TODD B. EAGANA smc-uan ATTORNEYS AT LAW ANDREW El. BRETTLER, BRIAN G. WOLF SUITE 2400 DAVID B. JONELIS LYNDA a. GOLDMAN LINDSAY n. MICHAEL D. HOLTZ. 2?49 CENTURY PARK EAST zav PAUL N. BORRELL L05 ANGELEB. CALIFORNIA 90067-2906 JONATI-IAN M. KLEIN MICHAEL E. wamsven 5&3 EVAN N. SPIEGEL TELEPHONE: (3m) 5 50' ALLISON s. HART FACEIMILE (310) 556-3615 HENRY L. SELF, OF UNSE 1 )an IN NY IH HY NJ November 10, 2016 VIA EMAIL: kwhite@brownwhitelaw.com Kenneth P. White Brown White Osborn LLP 333 S. Hope Street, Suite 4000 Los Angeles, CA 90071 Re: James Woods v. John Doe alkla ?Abe List?, et a1. Our File No. 5802-2 Dear Ken: I am in receipt of your objections to our Subpoena, and your email suggesting you will be Voicing similar objections at the deposition. As you know, your objections are not well founded. Indeed, you previously objected to disclosing your client?s name on privacy grounds stating that we ?rst had to ?rst establish a primafacie case for defamation. The Court has now held that my client has a probability of prevailing on the merits, and your appeal on that issue has been dismissed. By de?nition we have established a primafacie case for defamation by your client. Nor do any of our requests involve attorney-client communications. We have every right to determine who your client is, whether your client is in fact still living or deceased, and if deceased when it happened, who is administering the estate, etc. Further, when I called to tell you the types of questions we would be asking, none of which invoke privacy rights or privilege, you re?ised to indicate one way or another how you would answer. Since you have refused to volunteer this information, we have no choice but to go forward with your deposition. So that there is no confusion down the road, please note that if you refuse to answer under oath questions that do not invoke attorney?client privilege, we will have no choice but to move to compel answers and seek our attorneys? fees and costs for doing so. Very truly yours, ?fe INDSAY D. MOLNAR LDM cc: Michael Weinsten, Esq. Kenneth P. White ?November 2016 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES JAMES WOODS, an individual, Plaintiff, vs. Case No. BC589746 JOHN DOE a/k/a and DOES 2 through 10, inclusive, Defendants. VIDEOTAPED DEPOSITION OF KENNETH P. WHITE Monday, November 14, 2016 11:00 a.m. 11:59 a.m. 2049 Century Park East, Suite 2400 Los Angeles, California Reported By: PAMELA A. STITT CSR No. 6027 U.S. LEGAL SUPPORT (800) 993?4464 Kenneth P. White November 14J 2016 For For The Plaintiff: LAVELY SINGER BY: LINDSAY D. MOLNAR ATTORNEY AT LAW 2049 Century Park East Suite 2400 Los Angeles, 310.556.3501 lmolnar@lavelysinger.com California 90067-2906 Defendants: BROWN WHITE OSBORN LLP BY: CALEB MASON ATTORNEY AT LAW 333 South Hope Street 40th Floor Los Angeles, 213.613.0500 cmason@brownwhitelaw.com California 90071 Videographer: STAN BEVERLY U.S. LEGAL SUPPORT U.S. LEGAL SUPPORT {(800) 993?4464 Kenneth P. White ?November,14; 2016 EXAMINATION By MS. Molnar INDEX TO EXAMINATION WITNESS: KENNETH P. WHITE RECESSES (11:47 a.m. 11:51 (11:56 a.m. 11:57 INFORMATION REQUESTED (None) UNANSWERED QUESTIONS PAGE LINE PAGE U.S. LEGAL SUPPORT (800) 993-4464 Kenneth P. White ?November.14,.2016 the defendant referenced in Exhibit 1 as John Doe a/k/a Abe List? A. Yes. I will confirm that the person named here, the person whose conduct is described here was my client. Q. You say "was." He is no longer your client? A. He is deceased. Q. Okay. What is the legal name of your client? MR. MASON: We are going to object on several Grounds that I think Mr. White I'm happy to have him articulate but they boil down to attorney?client communications, they are privileged, and we believe that the underlying purpose of the question is not reasonably calculated to lead to admissible evidence and it's purpose is to-harass, intimidate third parties and/or deceased people, which we do not believe is an appropriate function of the litigation process, but Mr. White is an attorney and I'm happy_to let him explain all of that. I am going to follow my attorney's THE WITNESS: admonition and I would only add factually that the core purpose of representation of Mr. Doe was to protect his identity and that is part of the basis of the assertion of the attorney-client privilege. MS. MOLNAR: Okay. Are you aware of any legal authority that supports your position? MR. MASON: Yes. U.S. LEGAL SUPPORT (800) 993?4464 Kenneth P. White _tNovemberilA..2016 MS. MOLNAR: Do you know any of it off the top of your head? THE WITNESS: No. And as deponent I think it would be-work product. BY MS. MOLNAR: Q. SO are you still in an attorney-client relationship with your client now that he is deceased? A. I am in an attorney?client relationship with his heir. Q. And is his heir a male or a female? A. Male. Q. What is the name of his heir? MR. MASON: Again, we would object to that question for the same reasOns articulated earlier. If Mr. White wants to expand on his reaSOns, he is free to do so but we are objecting to the question. He; is not going to give you a substantive answer as to the name. THE WITNESS: I would only add that the specific reason for the continuing representation of the interest of the late Mr. Doe was to protect his identity and the identity, therefore, of his heirs. BY MS. MOLNAR: Q. So who is your_client now? A. I would say that it is the estate of John Doe. U.S. LEGAL SUPPORT (800) 993?4464 Kenneth P. White . A. I don't but I did it in writing. Q. And who informed you that Abe List had passed? MR. MASON: Same objections. THE WITNESS: The person I now am instructed by as the representative of the late Mr. Doe, a family member is the one who contacted me. BY MS. MOLNAR: Q. Would that be Abe List's father? MR. MASON: Same objections. THE WITNESS: I.am going to stick with that. BY MS. MOLNAR: Q. You are not going to answer that question? THE WITNESS: Yes, I am going to decline to. RY MS. MOLNAR: Q. So just to be clear, you are not going to give me the name of the personal representative of Abe List's estate? A. That's correct. Q. Were you informed the date that Abe List passed away? MR. MASON: I would go vague as to grammar and also the same objections. Informed of the date or informed on the date? MS. MOLNAR: I can strike that. MR. MASON: Yes. Just add a preposition. U.S. LEGAL SUPPORT 14 (800) 993~4464 Kenneth P. White ..Novemberrla,i2016 BY MS. MOLNAR: Q. When did Mr. Abe List pass away? MR. MASON: That one I am going to interpose the same objections we had previously. THE WITNESS: I do not remember the date; however, if I did, I would stand by the objections as articulated by counsel. BY MS. MOLNAR: Q. I believe you previously had informed us that it was the month of August; is that correct? A. I believe that in settlement communications, specifically denominated as such, I made a reference to that general time range, yes. Outside of settlement I communications I would decline toranswer. Q. Where did Mr. Doe pass away? MR. MASON: Same objections. THE WITNESS: I am going to_decline to answer because I think it would reveal confidential communications. BY MS. MOLNAR: Q. - And just to be clear for the record when I refer to Mr. Doe and Abe List, it's interchangeably, I am referring to your client. A. I understand. Q. Did you ever view a death certificate for Abe U.S. LEGAL SUPPORT (800) 993?4464 15 Kenneth P. White November 14, 2016 List? MR. MASON: Same objections. THE WITNESS: Did I ever view a death certificate? BY MS. MOLNAR: Q. Yes. Did you see one? Were you provided with one? 1 MR. MASON: So, right, same objeCtions and I think also the question is vague. Can you MS. MOLNAR: I can rephrase. MR. MASON: Yeah. BY MS. MOLNAR: Q. Have you seen Abe List's death certificate? A. I have not reviewed a death certificate of Abe ?List. I have not read one. Q. Have you asked for one? A. I didn't MR. MASON: Well, yeah, as to that question again as phrased I would go with vague, particularly as to the object of the verb "asked." Depending on how it was phrased that could reveal attorney?client communications so I think as phrased I would say same objections as previous. THE WITNESS: Now that I think about it, I think I have to decline to answer that on the basis of U.S. LEGAL SUPPORT (800) 993-4464 16 Kenneth P. White November 14, 2016 attorney-client communications. MR. MASON: Generally what we are going for here is the position that we are taking and I understand that you guys have a different View of the legal merits of this position and we will litigate that in the appropriate forum, but Mr. White is declining to answer questions that ask him to reveal steps that he took or legal communications that he had that would tend to reveal the identity of John Doe in this case. I understand that you guys want to know the name and we don't want to tell it to you. MS. MOLNAR: Right. And that we obviously disagree with your position. MR. MASON: Exactly. MS. MOLNAR: Okay. Q. How old was Abe List when he passed away? MR. MASON: Same objections. THE WITNESS: I only know that fact through attorney?client communications, so on that ground I decline to answer. And for the record I don?t remember the exact number anyway. BY MS. MOLNAR: Q. What was the cause of Abe List's death? MR. MASON: Same objections. Also foundation, U.S LEGAL SUPPORT 17 (800) 993-4464 Kenneth P. White A. He did. And to my knowledge his identity was withheld from her. Q. Okay. Was Abe List married? MR. MASON: Same objections. I only know the answer to that question based on an attorney-client communication and on that basis I think I have to refuse to answer. Let me think about that for a second. I think that during a discussion with you which I will confirm that in a discussion that I would characterize as a settlement discussion with you, not a successful one, but a settlement overture I told you that he had not been married at any time relevant to this case. And I will bonfirm that I did that in a settlement context. I believe that would be covered by 1152. That aside I cannot reveal anything more than that. MS. MOLNAR: Okay. I am going to mark this as, I believe, Exhibit 2. (Deposition Exhibit 2 was marked.) BY MS. MOLNAR: Q. Mr. White, can you describe to me what we have just marked as Exhibit 2? MR. MASON: For the record has there been forgive my ignorance, has there been discovery in this case? Should I be looking for a Bates stamp or anything? U.S. LEGAL SUPPORT 23 (800) 993~4464 Kenneth P. White _-NoNembequ4dl2?16 interpose MS. MOLNAR: But I haven't asked yet. MR. MASON: I understand that. But rather than speculate on the record, I mean, if you learned the fact relevant to the question through the attorney?client through attorney?client communications or attorney work?product, then that would fall within the same objections that we have been interposing throughout the case. So with that caution we can listen attentively for the next question. THE WITNESS: Okay. BY MS. MOLNAR: Q. Is that true, does Mr. -- did Mr. Abe List live in Los Angeles, California? A. On that one part of the profile I do not remember a nonprivileged source of information or a place where it has been disclosed so I am unable to answer that part of the profile I'm unable to answer based on the I do know the answer. I?m attorney?client privilege. unable to disclose it. Q. Okay. And outside the profile did Abe List live in Los Angeles, California, when he passed away? MR. MASON: Same objections. Right. My same objection. I know the answer to the question, but I only know as to that U.S. LEGAL SUPPORT (800) 993?4464 26 2.5 Kenneth P. White .November 14; 2016 ?particular one from an attorney-client source and that is not one where I think it has been revealed elsewhere bv me ?or by the client. BY MS. MOLNAR: Q. Okay. Did Abe List own a house in Los Angeles at the time of his death? MR. MASON: Same objections. Also foundation, calls for speculation. THE WITNESS: This one Let me lay the foundation for why I think I can answer it. At the very beginning of the case I informed lead counsel for Mr. Woods that the profile of Mr. List was completely fictitious and that I remember saying a few things that weren't true, one of which was being that he owned any property. Given that deliberate disclosure in the past I think I'm able to answer no, he did not. BY MS. MOLNAR: Q. Okay. And going back on Exhibit 2 it also referenced that Abe List has a link to Harvard, which would imply that he went to Harvard at some point. Did he graduate from Harvard? - MR. MASON: Same Same objections. THE WITNESS: Without waiving -- If I knew the I would refuse to answer on the answer to the question, basis of the attorney?client privilege. I do not U.S. LEGAL SUPPORT 27 (800) 993?4464 Kenneth P. White November 14, 2016 MR. MASON: I was making an objection, facial expression. I would go with our same objections and also vague and foundation, it calls for speculation THE WITNESS: Let me think about that. MR. MASON: asking about tweet history. THE WITNESS: I?m sorry. I'm going to withdraw my answer and say that I think that asking me that invades attorney work-product. You are asking me what I did in the course of investigating the case. MR. MASON: That's what it sounds like to me. THE WITNESS: And on that ground I will decline to answer. BY MS. MOLNAR: Q. What was Abe List's residential address when he passed away? min?w- MR. MASON: Same objections. THE WITNESS: I will e? I will say that I do not remember the address but without I will say that without waiving the objection, which I would invoke if I knew the answer. BY MS. MOLNAR: Q. Did you e-mail Abe List? MR. MASON: Same objections. Same objections. THE WITNESS: I think I have to -- as to the methodology of contact I think I have to assert the U.S. LEGAL SUPPORT 31 (800) 993-4464 Kenneth P. White .Noxemberwl4,,2016 accounts? MR. MASON: Same objections. THE WITNESS: When you say "any other Twitter accounts," what are you including and excluding? BY MS. MOLNAR: Q. Other than the handle "Abelisted" are there any other Twitter accounts under other handles that were owned by or managed by Abe List? MR. MASON: Same objections. Also foundation, calls for speculation. THE WITNESS: I have to assert the attorneyaclient privilege because the only way I know the answer to that question is by attorney-client communication. BY MS. MOLNAR: Q. Did Abe List have a website? MR. MASON: Same objections. Also foundation, also calls for speculation. THE WITNESS: If I knew the answer to the question, I would need to assert the attorney?client privilege and decline to answer it because the only way I would know would be by attorney-client communications; however, I do not know the answer to the question. MS. MOLNAR: Could we take a five-minute break? MR. MASON: You bet. U.S. LEGAL SUPPORT 39 (800) 993-4464 Kenneth P. White .November 2016 STATE OF CALIFORNIA SS COUNTY OF LOS ANGELES I, PAMELA A. STITT, a Certified Shorthand Reporter, do hereby certify: That prior to being examined, the witness in the foregoing proceedings was by me duly sworn to testify to the truth, the whole truth, and nothing but the truth; That said proceedings were taken before me at the time and place therein set forth and were taken down by me in shorthand and thereafter transcribed into typewriting under my direction and supervision; I further certify that I am neither counsel for, nor related to, any party to said proceedings, not in anywise interested in the outcome thereof. In witness whereof, I have hereunto subscribed my name. Dated: November 16, 2016 @mm 531551225 PAMELA A. STITT No. 6027 U.S. LEGAL SUPPORT (800) 993?4464 49 Reservation Printout?80589746 1 61 109172908 Page 1 of 1 THIS IS YOUR CR5 RECEIPT INSTRUCTIONS Please print this receipt and attach it to the corresponding motiom'document as the last page. Indicate the Reservation ID on the motionldocument face page (see example). The document wiII not be accepted without this receipt page and the Reservation tD. RESERVATION INFORMATION Reservation ID: 161 109172903 Transaction Date: November 9, 2016 Case Number: BC589746 Case Title: JAMES WOODS VS JOHN DOE ET AL Party: WOODS JAMES (PlaintiffiPetitioner) Courthouse: Stanley Mosk Courthouse Department: 45 Reservation Type: Motion to Compel Discovery (not "Further Discovery") Date: 1212212016 Time: 08:35 am FEE (Fees are non-refundable) First Paper Fee: Party asserts ?rst paper was previously paid. Description Fee Motion to Compel Discovery (not "Further Discovery") $60.00 Total Fees: Receipt Number: 1161109K2275 $60.00 PAYMENT INFORMATION Name on Credit Card: Credit Card Number: Martin Singer 8 A COPY OF THIS RECEIPT MUST BE ATTACHED TO THE CORRESPONDING AS THE LAST PAGE AND THE RESERVATION ID INDICATED ON THE MOTIONIDOCUMENT FACE PAGE. 11/9/2016 433mbPROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 2049 Century Park East, Suite 2400, Los Angeles, California 90067-2906. On the date indicated below, I served the foregoing document described as: NOTICE OF MOTION AND MOTION FOR: (1) AN ORDER COMPELLING NON-PARTY KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE AND (2) AN ORDER FOR SANCTIONS AGAINST NON-PARTY KENNETH P. WHITE IN THE AMOUNT OF $9,040.55 on the interested parties in this action by placing the original document 0R a true and correct copy thereof enclosed in sealed envelopes addressed as follows: . Kenneth P. White, Esq. Brown White Osborn LLP 333 s. HOpe Street, 40th Floor Los Angeles, CA 90071-1406 Email: kwhite@brownwhitelaw.com Tel: (213) 613?9446 Attorneys for John Doe (@abelisted) BY MAIL: I am "readily familiar" with the ?rm?s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with US. postal service on that same day with postage thereon ?illy prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in af?davit. BY PERSONAL SERVICE: I caused such envelope to be delivered by a messenger employed by Express Network. I delivered said envelope(s) to the of?ces of the addressee(s), via hand delivery. BY ELECTRONIC SERVICE: I transmitted the foregoing document by electronic mail to the e- mail address(s) stated on the service list per agreement in accordance with Code of Civil Procedures section 1010.6. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed November 30, 2016, at Los Angeles, California. If/ Melanie .M/mhs?bw?/ MOTION TO COMPEL