Free Declaration in Support - District Court of California - California

Case 3:07-cv-02769-JL

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Filed 06/25/2007

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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 TO EXTEND THE TEMPORARY PROTECTIVE ORDER

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 Case No.: C 07- 2769 JL TO PLAINTIFF'S EX PARTE MOTION TO EXTEND THE TEMPORARY PROTECTIVE ORDER

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. On May 30, 2007, Defendants filed an Ex Parte Application for Order Vacating or

Modifying Temporary Protective Orders. Attached hereto as Exhibit A is an email message I received from Jonathan Cohen, counsel for plaintiff and counterdefendant Frank Nemirofsky ("Plaintiff"), on June 2, 2007. 3. On June 5, 2007, the Court informed me that Defendants' Ex Parte Application for Order

Vacating or Modifying Temporary Protective Orders had been set for hearing on July 25, 2007. That day I called Mr. Cohen to inform him of the hearing date, but he did not answer his telephone. Mr. Cohen responded to my voicemail by email the next day and suggested that we talk the following morning. I agreed. On June 7, Mr. Cohen and I had a telephone conference, and I told him that the hearing had been set for July 25, 2007. 4. After our June 7 telephone conference, I had no further communications with Plaintiff's

counsel until I received a voicemail from Mr. Cohen on June 22. Mr. Cohen stated that he planned to file an ex parte application to extend the temporary protective orders that day. Mr. Cohen noted that he would be unavailable for the rest of the day and suggested that I contact another attorney at his firm, Robyn Callahan, if I "need to reach somebody." Peter Harvey and I promptly called Ms. Callahan to request that she send us a copy of Plaintiff's ex parte application immediately. Ms. Callahan did not pick up her telephone and did not return the call. Mr. Callahan efiled Plaintiff's redacted ex parte motion and related documents that night between 8:47 p.m. and 9:05 p.m. She emailed me and Mr.

Harvey unredacted "courtesy copies" of these papers at 10:15 p.m. At this point Defendants and their counsel saw Plaintiff's ex parte motion and related documents for the first time. 5. Plaintiff attached to his declaration in support of his ex parte motion a letter dated

October 9, 2006. Plaintiff had previously filed ex parte applications for right to attach orders, based on
-1APPEL DECLARATION IN SUPPORT OF DEFENDANTS' OPPOSITION Case No.: C 07- 2769 JL TO PLAINTIFF'S EX PARTE MOTION TO EXTEND THE TEMPORARY PROTECTIVE ORDER

Case 3:07-cv-02769-JL

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the same facts and claims, in the California Superior Court. Plaintiff did not submit this October 9 letter along with those ex parte applications (nor did he otherwise call this letter to my attention prior to his June 22 filing). Instead, he submitted an email he wrote to Kim on April 14, 2007, offering suggestions concerning the PRN litigation. Attached hereto as Exhibit B is Plaintiff's declaration in support of his ex parte applications, filed in the San Francisco Superior Court on May 16, 2007, along with exhibits thereto. 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 25th day of June, 2007, in San Francisco, California.

/s/ Seth I. Appel

-2APPEL DECLARATION IN SUPPORT OF DEFENDANTS' OPPOSITION Case No.: C 07- 2769 JL TO PLAINTIFF'S EX PARTE MOTION TO EXTEND THE TEMPORARY PROTECTIVE ORDER