Free Declaration in Support - District Court of California - California

Case 3:07-cv-02769-JL

Document 67

Filed 07/09/2007

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HARVEY SISKIND LLP D. PETER HARVEY (SBN 55712) e-mail: [email protected] SETH I. APPEL (SBN 233421) e-mail: [email protected] Four Embarcadero Center, 39th Floor San Francisco, California 94111 Telephone: (415) 354-0100 Facsimile: (415) 391-7124 Attorneys for Defendants and Counterclaimants SEOK KI KIM and STV ASIA, LTD.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION FRANK NEMIROFSKY, Plaintiff, Case No.: C 07 2769 JL DECLARATION OF SETH I. APPEL IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S EX PARTE MOTION FOR LEAVE OF COURT FOR EARLY DISCOVERY

14 v. 15 16 17 18 19 20 21 22 23 Counterdefendant. 24 25 26 27 28 v. FRANK NEMIROFSKY, SEOK KI KIM; STV ASIA, LTD., a British Virgin Islands corporation; and DOES 1 through 20, inclusive, Defendants. SEOK KI KIM and STV ASIA, LTD., a British Virgin Islands corporation, Counterclaimants,

APPEL DECLARATION IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S EX PARTE MOTION RE EARLY DISCOVERY

Case No.: C 07- 2769 JL

Case 3:07-cv-02769-JL

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I, Seth I. Appel, declare as follows: 1. I am an attorney at Harvey Siskind LLP, counsel for Seok Kim Kim and STV Asia, Ltd.

("Defendants"), defendants and counterclaimants in this action. I have personal knowledge of the matters stated herein, and, if called as a witness, I could and would testify competently thereto. 2. Attached hereto as Exhibit A are Temporary Protective Orders (TPOs) issued by the San

Francisco Superior Court on May 16, 2007, per applications of Frank Nemirofsky ("Plaintiff), plaintiff in this action. 3. The TPOs expired by their terms "at the earliest of the following times: . . . (3) 40 days

after the issuance of this order." Therefore, the TPOs expired on June 25, 2007, i.e., 40 days after issuance. Plaintiff's counsel, Jonathan Cohen, stated in an email to me dated June 2, 2007, that "the TPO expires within the next three weeks." (This email is attached as Exhibit A to Mr. Cohen's declaration.) 4. Defendants formally withdrew their motion to vacate or modify the TPOs based on

mootness on June 29, 2007. The following week, I sent a letter to Mr. Cohen suggesting that Plaintiff likewise withdraw his motion to extend the TPOs based on mootness. My letter to Mr. Cohen is attached hereto as Exhibit B. In reply, Mr. Cohen informed me that his client would not withdraw his motion. 5. Mr. Cohen raised the issue of early depositions generally in emails in early June. In

these emails, he did not mention whom he sought to depose, nor did he explain why expedited discovery was necessary. Mr. Cohen did not identify Deborah Bailey-Wells or Jim Smith as potential early deposition witnesses prior to the filing of Plaintiff's motion to extend the TPOs on the night of June 22. 6. After the first week of June, Mr. Cohen did not raise the issue of expedited discovery

again until Thursday, July 5. On that date, he emailed me a letter. I was traveling at the time, with limited email access, and my email was set to generate an automatic "out of office autoreply" notice. The notice stated in full:
-1APPEL DECLARATION IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S EX PARTE MOTION RE EARLY DISCOVERY Case No.: C 07- 2769 JL

Case 3:07-cv-02769-JL

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Filed 07/09/2007

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I am currently out of the office, returning Monday, July 9, 2007. If you need immediate assistance, please contact Cindi Lee at 415-354-0100 or [email protected]. Thank you. Upon information and belief, Mr. Cohen did not contact Ms. Lee or any other lawyers at my firm. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed this 9th day of July, 2007, in San Francisco, California.

/s/ Seth I. Appel

-2APPEL DECLARATION IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S EX PARTE MOTION RE EARLY DISCOVERY Case No.: C 07- 2769 JL