Case 3:20-cv-03345-WHO Document 19 Filed 06/09/20 Page 1 of 5

1 Pavel I. Pogodin, Ph.D., Esq. (SBN 206441)

CONSENSUS LAW
2 5245 Ave Isla Verde
3 Suite 302
Carolina, PR 00979
4 United States of America
Telephone: (650) 469-3750
5 Facsimile: (650) 472-8961
Email: pp@consensuslaw.io
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7 Attorneys for Plaintiff BMA LLC

8 UNITED STATES DISTRICT COURT

9 FOR THE NORTHERN DISTRICT OF CALIFORNIA
10 SAN FRANCISCO DIVISION
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BMA LLC, Case No. 3:20-cv-3345-WHO
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14 Plaintiff, DECLARATION OF PAVEL
POGODIN, ESQ. IN SUPPORT OF
15 PLAINTIFF’S EX PARTE
APPLICATION FOR THIRD PARTY
16 v. EVIDENCE PRESERVATION ORDER

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18 HDR Global Trading Limited (A.K.A.
BitMEX), ABS Global Trading Limited,
19 Arthur Hayes, Ben Delo and Samuel Reed,

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Defendants.
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I, Pavel I. Pogodin, state and declare as follows:
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1. I am an attorney of record in this action for Plaintiff BMA LLC. I am a member in good
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standing of the Bar of the State of California, and I am admitted to practice before this
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Court. I have personal knowledge of the matters set forth in this declaration, and if called
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upon to do so, I would willingly and competently testify as to those matters.
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CRYPTOCURRENCY
ATTORNEYS DECLARATION OF PAVEL POGODIN -1- BMA LLC V. HDR ET AL. CASE NO. 3:20-CV-3345-WHO
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2. On or about May 18, 2020, I filed an Amended Complaint in this civil action. Defendant
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ABS Global Trading Limited was served with process on May 22, 2020.
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3. On or about May 22, 2020, I emailed a data preservation letter to Twilio Inc. at
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legal@twilio.com requesting that Twilio Inc. preserve data in BitMEX account.
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4. On or about May 22, 2020, I emailed a data preservation letter to SendGrid Inc. at
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legal@sendgrid.com requesting that SendGrid Inc. preserve data in BitMEX account.
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5. According to BitMEX’s own web page https://www.bitmex.com/app/dataPartners, a true
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and correct copy of which is attached hereto as Exhibit 3, “[t]he [user email address] data
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is uploaded to SendGrid, Inc. and/or Intercom, Inc. and their affiliates when [user] account
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is created or [user] email address changes.” Therefore, SendGrid Inc., its parent Twilio
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Inc. and Intercom Inc. store an email address database of all BitMEX users.
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6. The email address database of all BitMEX users can be used to determine, with high
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degree of accuracy, the true number of United States persons who trade on the BitMEX
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platform.
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7. On or about June 1, 2020, I received an email response from Robert McHenry, Associate
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General Counsel of Twilio, Inc, stating: “Twilio has placed a temporary deletion hold on
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BitMEX’s account(s) to give them an opportunity to evaluate your request. Twilio will
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maintain the temporary hold for 14 days from the date of this letter unless it receives
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instructions from the defendants to maintain the hold.” The deletion hold will expire on
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June 15, 2020.
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8. Notwithstanding the fact that defendant ABS Global Trading Limited was only recently
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served with the Summons and the Amended Complaint, I have been in email
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communication with defendants’ counsel Stephen D. Hibbard of Jones Day since April 8,
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2020. Stephen D. Hibbard has informed me that he represents all defendants in this
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action.
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9. Defendants’ counsel and I are presently negotiating acceptance of the service of process
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on behalf of the remaining defendants and the briefing schedule.
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CRYPTOCURRENCY
ATTORNEYS DECLARATION OF PAVEL POGODIN -2- BMA LLC V. HDR ET AL. CASE NO. 3:20-CV-3345-WHO
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10. Defendants’ counsel and I had multiple email communications regarding preservation of
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email address data of BitMEX users in possession of third parties. I explained to
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defendants’ counsel the relevance of the email address data of BitMEX users to establish
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defendants’ contacts with the forum and operating unlicensed money transmission
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business predicate offence of the RICO causes of action.
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11. I explained to defendants’ counsel the need to preserve email address data of BitMEX
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users. I asked defendant’s counsel if he would stipulate to allow Plaintiff to subpoena the
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email address records prior to our 26(f) conference. He declined.
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12. I then asked if defendants’ counsel would stipulate to allow plaintiff to obtain a
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preservation order. He again declined. Specifically, defendants’ counsel wrote to me on
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or about June 3, 2020: “Defendants will not stipulate to a court order directing those
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companies to preserve certain data. We understand you have already sent data
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preservation letters to both companies. In light of those letters, there is no basis for the
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extraordinary relief you are suggesting, and we see no justification for imposing on the
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court to enter such an order.”
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13. Defendants’ counsel further wrote to me on or about June 5, 2020: “those email addresses
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do not bear on the claims in the filed complaint” disputing the relevance of the user email
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address data to the present case.
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14. The evasive refusal to acknowledge defendants’ duty to preserve the user email address
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data and then taking position that this database is not relevant to the present action all
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indicate that there is a strong likelihood that the user email address data will be deleted or
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sanitized by defendants as soon as the deletion hold imposed by Twilio Inc. is lifted on
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June 15, 2020.
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15. On June 8, 2020, I notified defendant’s counsel via electronic mail at
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sdhibbard@jonesday.com that we intended to file this ex parte application with the court.
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16. Defendant’s counsel stated that he does not consent to this application because he does not
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believe that Court should be bothered with user email address data preservation.
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ATTORNEYS DECLARATION OF PAVEL POGODIN -3- BMA LLC V. HDR ET AL. CASE NO. 3:20-CV-3345-WHO
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Specifically, defendants’ counsel stated to me: “Defendants will not stipulate to a court
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order directing those companies to preserve certain data. We understand you have already
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sent data preservation letters to both companies. In light of those letters, there is no basis
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for the extraordinary relief you are suggesting, and we see no justification for imposing on
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the court to enter such an order.”
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17. Defendants’ counsel further wrote to me that defendants reserve the right to challenge
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court’s personal jurisdiction in this action. Specifically, he wrote: “HDR and ABS reserve
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all rights to determine how to respond to your complaint.”
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18. On or about June 9, 2020, I emailed a data preservation letter to Intercom Inc. at
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legal@intercom.com requesting that Intercom Inc. preserve data in BitMEX account.
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19. A true and correct copy of the article entitled “The Great Crypto Heist” by Nouriel
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Roubini, published by the Project Syndicate on July 16, 2019 and available at
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https://www.project-syndicate.org/commentary/cryptocurrency-exchanges-are-financial-
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scams-by-nouriel-roubini-2019-07 is attached as Exhibit 1.
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20. A true and correct copy of Declaration Of Arthur Hayes In Support Of Specially
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Appearing Defendants’ Motion To Quash Service Of Summons For Lack Of Personal
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Jurisdiction filed in San Francisco Superior Court Case No: CGC-19-581267 on February
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27, 2020 is attached as Exhibit 2.
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21. A true and correct copy of a web page entitled “Data Partners – BitMEX” visited on June
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8, 2020 and available at https://www.bitmex.com/app/dataPartners is attached as Exhibit
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3.
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22. A true and correct copy of a partial transcript of YouTube.com video entitled “The Tangle
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in Taipei with Arthur Hayes and Nouriel Roubini,” uploaded on July 15, 2019 and
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available at https://www.youtube.com/watch?v=qlZukhN_C6c is attached as Exhibit 4.
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23. A true and correct copy of a partial transcript of YouTube.com video entitled “Bitmex
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CEO Arthur Hayes Crypto Millionaire Explains How He Created A Multi Million Dollar
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Company,” uploaded on November 5, 2018 and available at
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CRYPTOCURRENCY
ATTORNEYS DECLARATION OF PAVEL POGODIN -4- BMA LLC V. HDR ET AL. CASE NO. 3:20-CV-3345-WHO
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https://www.youtube.com/watch?v=Ljw9ulT2NHE is attached as Exhibit 5.
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24. A true and correct copy of a First Amended Complaint filed in San Francisco Superior
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Court Case No: CGC-19-581267 on February 27, 2020 is attached as Exhibit 6.
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I declare under penalty of perjury under the laws of the United States of America that the
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foregoing is true and correct.
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Executed on June 9, 2020, in Carolina, Puerto Rico.
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By: /s/ Pavel I. Pogodin
8 Pavel I. Pogodin
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CONSENSUS LAW
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ATTORNEYS DECLARATION OF PAVEL POGODIN -5- BMA LLC V. HDR ET AL. CASE NO. 3:20-CV-3345-WHO