Free Declaration in Support - District Court of California - California

Case 3:07-cv-02769-JL

Document 101

Filed 10/03/2007

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Jonathan M. Cohen (SBN: 168207) Martin Sabelli (SBN 164772) Robyn T. Callahan (SBN: 225472) WINSTON & STRAWN LLP 101 California Street San Francisco, CA 94111-5894 Telephone: 415-591-1000 Facsimile: 415-591-1400 Email: [email protected] [email protected] Attorneys for Plaintiff FRANK NEMIROFSKY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION FRANK NEMIROFSKY, Plaintiff, vs. SEOK KI KIM; STV ASIA, LTD. a British Virgin Islands corporation; and DOES 1 through 20, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3:07-CV-02769 ­ JL Hon. Magistrate James Larson DECLARATION OF ROBYN T. CALLAHAN IN SUPPORT OF PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' OBJECTIONS TO THE DEPOSITION OF DEBORAH BAILEYWELLS

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I, Robyn T. Callahan, declare as follows: 1. I am a duly licensed attorney at law, authorized to practice before the Courts of the

State of California as well as the Federal District Court for the Northern District of California. I am an associate of the law firm Winston & Strawn LLP. I make this declaration in support of Plaintiff's Brief in Opposition to Defendants' Objections to the Deposition of Deborah Bailey-Wells. I have personal knowledge of the facts set forth herein and could and would competently testify thereto. /// /// 1
DECLARATION OF ROBYN T. CALLAHAN IN SUPPORT OF PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' OBJECTIONS TO THE DEPOSITION OF D. BAILEY-WELLS
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Case 3:07-cv-02769-JL

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2.

On September 24, 2007, I sent a letter to Defense counsel detailing the areas of

inquiry for the deposition of Deborah Bailey-Wells. Therein, I specifically outlined 19 categories for which Plaintiff wishes to seek testimony from Ms. Bailey-Wells. Attached hereto as Exhibit A is a true and correct copy of my September 24, 2007 letter to Peter Harvey and Seth Appel. 3. Defendants' counsel responded to my September 24, 2007 letter on September 25,

2007, wherein Defendants raised objections to all 19 categories proposed by Plaintiff. Attached hereto as Exhibit B is a true and correct copy of Peter Harvey's September 25, 2007 letter. 4. On September 27, 2007, Defendants' counsel, Peter Harvey and Seth Appel, and

Plaintiff's counsel, Martin Sabelli and I, participated in a telephone conference to discuss the meet and confer letters and to attempt, again, to resolve the parties' differences regarding Ms. BaileyWells' deposition. Although we made every effort to provide a detailed description of the subject matters of inquiry, Defendants' position throughout this meet and confer process has been somewhat erratic in terms of the grounds for their objections and in defining the relationship of the parties. Defendants have essentially concluded that Plaintiff should not be permitted to ask Ms. Bailey-Wells about any of the subject areas delineated in Plaintiff's September 24, 2007 letter. Thus, the parties remain at an impasse. 5. During the course of our meet and confer with Defendants' counsel, they have asserted at

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least two other theories in addition to the agency theory set forth in Mr. Harvey's September 25, 2007 letter: (1) that Mr. Nemirofsky was "hired" by STV Asia, Ltd. and thus served the company in the capacity of an employee; and (2) that Mr. Nemirofsky was STV Asia's expert for purposes of the PRN Litigation. At this stage, it is still unclear to Plaintiff as to how Defendants are defining Mr. Nemirofsky's role and relationship with STV Asia, and thus Ms. Bailey-Wells. 6. Deborah Bailey-Wells is a partner of the law firm Kirkpatrick & Lockhart Preston

Gates Ellis and was counsel in the patent infringement lawsuit which was brought by STV Asia, Ltd. against Premier Retail Networks, among other entities, which was venued in the Northern District of California before the Honorable Judge Spero (referred to herein as the "PRN Litigation"). 2
DECLARATION OF ROBYN T. CALLAHAN IN SUPPORT OF PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' OBJECTIONS TO THE DEPOSITION OF D. BAILEY-WELLS
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7.

Attached hereto as Exhibit C are true and correct copies of email communications to

and from Frank Nemirofsky and STV Asia's then counsel, Squire, Sanders & Dempsey. Plaintiff has already produced all of these documents to Defendants. Exhibit C is being filed under seal. 8. Attached hereto as Exhibit D are true and correct copies of email communications

from Mr. Kim wherein he refers to Mr. Nemirofsky as his "partner" in the PRN Litigation, Plaintiff has already produced all of these documents to Defendants. Exhibit D is being filed under seal. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 3rd day of October 2007 at Wailea, Hawaii.

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___________/s/_____________________ ROBYN T. CALLAHAN

DECLARATION OF ROBYN T. CALLAHAN IN SUPPORT OF PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' OBJECTIONS TO THE DEPOSITION OF D. BAILEY-WELLS
SF:185204.1

Case No. 3:07-CV-02769 ­ JL