1 TABLE OF CONTENTS

2 Page
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3 I. INTRODUCTION ..............................:.................................................................................: 1

4 IL FACTUAL BACKGROLTND ............................................................................................... 2

5 A. Robson Repeatedly Misrepresented That He Had Completed His

Production. .........................:.............................................................:..............:......:.. 2
6
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B. Robson Has Failed to Cure Previously Identified Deficiencies.....:...:...................... 5
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C. Robson Has Improperly Redacted Non-Privileged Communications...................:... 6
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a D. Robson Refuses to Produce the Metadata for His Book. .......................................... 7
a 9
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N E. Robson Has Failed to Produce Attachments to Emails............................................. 8
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m III. ARGUMENT ........................................................................................................................ 9
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~ ~~ A. Robson Should Be Ordered to Produce All Documents That He Agreed to
~ o ~~ 12 Produce and Detail His Efforts to Searck► for and Produce Documents.........'............ 9
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15 2. Robson Has Improperly Redacted Emails Copying Helen Yu. ....:............. 11
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D: Robson Should Reproduce Electronically Stored Documents with Metadata. ....... 13
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a 18 E. Robson Should Submit to a Forensic Examination of His Accounts...................... 14

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7 19 F. Robson Should Be Sanctioned. ............................................................................... 15

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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 11 I. INTRODUCTION

21 This motion seeks an order compelling Plaintiff Wade Robson to comply with his most
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3 -basic discovery obligations in this matter. This Court's intervention in the discovery process is

4 necessary because, over the last several months, Defendants have learned that, among other things,

5 Robson:(1) has made false statements under oath regarding the existence of documents and his.

6 search for documents;(2) has affirmatively withheld documents that should have been produced
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7 years ago; and (3) has redacted documents based on objectively frivolous assertions of privilege.

8. When Robson was asked to produce all written communications relating to his allegations
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a 9 of abuse in this case, Robson stated under oath that only a single responsive document existed.
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w 10 Documents obtained by third parties, however, showed that these sworn statements by Robson
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11 were utterly false. Robson was then forced to change his response entirely, finally admitting that

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12 many communications existed and agreeing to produce theirs. Eventually, Robson would produce
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1S production and had produced all responsive communications. Each time that representation was
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17' communications. Robson was then forced to "supplement" his productions three separate times,
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i 19 Robson has still failed to produce numerous communications with third parties and has never
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20 explained why. Moreover, Robson has also redacted the entire content of numerous emails for no
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21 plausible reason. For example, he completely redacted over fifty emails between himself and his

22 mother alone, based on the absurd claim that his discussions with his (non-lawyer) mother about

23 the supposed "facts" underlying his allegations are somehow his attorneys' "work product."
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24 In addition, documents in one of Robson's "supplemental" productions this Fall revealed

25 thefirst time that Robson began writing a book, prior to filing suit in May 2013, about the

26 allegations in this case, which he unsuccessfully shopped to publishers prior to filing suit. Yet,

27 Robson inexplicably failed to produce a single draft of his book in either this case or in the related

28 probate proceedings years ago. When Defendants pressed Robson as to why the book had not been

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 1 produced long ago, Robson first claimed that he was unable tofind the book. Four days later,

2 Robson changed his story, claiming that he had actually withheld the book as "privileged"(but
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3 never logged it). He then "waived privilege," and produced one "recently created" PDF version of

4 the book.- But numerous documents about the book (including other possible drafts of it) are

5 missing or redacted, and Robson refuses to produce original electronic files with metadata. He also

6 claims—preposterously—that his communications with publishers about the book are privileged.
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7 Despite months ofback-and-forth between counsel and many opportunities for Robson to

8 fix these issues, Robson's production remains woefully deficient. In order to ensure that he does
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a 9 not continue to withhold crucial evidence, Robson should be ordered to (1) cure all deficiencies
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. 10 and complete his production of documents by a date certain,(2) submit a declaration detailing his
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11 efforts to locate responsive documents, and (3) submit to a third-party forensic examination of his
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°~~°C° 12 email accounts, computers, and other electronic devices. In addition, Robson should be ordered to
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14 II. FACTUAL BACKGROUND
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15 A. Robson Repeatedly Misrepresented That He Had Completed His Production.
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18 RFPs sought documents and communications relating to Robson's visits to the United States as a
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m 19 child and his allegations that he was abused by Jackson. For example:

2,0 ■ Request No. 15 sought "All DOCUMENTS RELATING TO YOUR allegations that
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YOU were abused by Michael Jackson;"
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■ Request No. 24 sought "All DOCUMENTS RELATING TO YOUR visits to the
22 United States prior to YOUR 18`h birthday;" and
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■ Request No. 32 sought "All COMMUNICATIONS and RECORDINGS on or after
May 8, 2012, between YOU and any PERSON RELATING TO allegations that
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24
Michael Jackson sexually abused children, including but not limited to allegations that
25 he sexually abused YOU."

26 Id. Ex. 1 at 5-7.

27 On June 3, 2016, Robson served verified responses to the First Set of RFPs and agreed to
28 produce documents in response to the vast majority of requests—including those listed above. Id.

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 1 ~ ~ Ex. 2. In his verified response to Request No. 32, however, Robson represented as follows:
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Id., Ex. 2 at 26(emphasis added). Consistent with his representation that

Robson failed to produce any communications relating to his allegations of

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abuse apart from the previously-produced September 7 email(an email that was discussed by the

Court at page 4 of its May 26, 2015 order granting the Estate's motion for summary judgment).
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a 9 On June 23, 2016, Defendants began to meet and confer with Robson's prior counsel
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Request No. 32. Id. Ex. 3. In their letter,
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11 Defendants expressed disbelief at Robson's assertion that
. Id. at 2-3.
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13 After new counsel was retained, Robson provided an amended, verified response to the
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14 First Set of RFPs at the end of July 2013. Id. Ex. 4-6. With regard to
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15 changed his response to state that

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Id. Ex. 6 at 14. Robson's amended
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17 response was accompanied by a small supplemental
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that, with this production, Robson had

a 18 pages. With that production, Robson expressly represented
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20 No explanation was provided for why Robson had falsely stated previously, under oath,
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.Nevertheless,
21 that
search had been conducted and that
22 Defendants accepted counsel's representation that a diligent

23
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1 Soon thereafter, Robson noticed his own deposition for August 24, 2016 and took the untenable
position that Defendants had to depose Robson on that day or they would forfeit their right to ever
25
depose Robson. Steinsapir Decl. Ex. 8. Defendants successfully moved for a protective.order, and
Robson's deposition was rescheduled. Id. ¶ 10. When Robson's deposition was finally taken in
26
December; Robson's counsel did not ask a single question—revealing that Robson's bizarre
27
attempt to notice his own deposition was simply a harassing stunt and, potentially worse, an effort
to force Defendants to depose hiin without the benefit of thousands of responsive documents. Id.
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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 all documents had been produced. However, during the last week of September 2016, Robson's

mother and siblings produced documents at their depositions, including many emails that Robson
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had sent or received since May 8, 2012 relating to his allegations of abuse. Id. ¶ 11. None of these

documents had been produced by Robson. Defendants pointed out this discrepancy in an October

6,.2016, letter and asked Robson to either supplement his production or explain his destruction of

relevant evidence. Id. Ex. 9. On October 11, Robson's counsel acknowledged that—contrary to -his
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prior representations—Robson had not produced all responsive documents in his possession. Id.

Ex. 10. In fact, Robson had not even searched for many documents that were responsive to the
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17 additional issues with Robson's production. On November 2, 2016, Defendants sent a third meet
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a 18 and confer letter, outlining these issues, including:(1) Robson's continuing failure to produce
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20 failure to produce electronic drafts and treatments of a book, with metadata intact, that Defendants
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21 had just learned Robson was writing in late 2012 and early 2013 (prior to filing this action); and

22 (4)Robson's failure to produce attachments to emails. Steinsapir Decl. Ex. 11. In light of these

23 ongoing issues, and the many false statements made by Robson about his production, Defendants
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24 asked Robson to stipulate to a court order requiring him to produce all responsive documents by a

25 date certain; and to consent to a forensic examination of his accounts and devices. Id. at 6.

26 Robson's counsel responded by email on November 4, 2016. Steinsapir Decl. Ex. 12.
27 I ~ Remarkably, Robson once again claimed to have located additional responsive documents that he

28 had not yet produced, and he once again represented that with these additional documents his

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 1 document production would be complete. Id. Nevertheless, Robson refused to stand by his claim

2 that he had.produced all documents by stipulating to a court order requiring that he produce all
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3 documents and to submit to a forensic examination of his accounts and devices.'Id.

4 Defendants received Robson's latest production on November 10, 2016. That production

5 included numerous documents that are directly relevant to Robson's allegations of abuse and are

6 clearly responsive to the First Set of RFPs. Steinsapir Decl. ¶ 19. Robson's latest production still
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7 failed to cure the deficiencies in his production.

8 B. Robson Has Failed to Cure Previously Identified Deficiencies.

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Q o~~ 11 email exchanges with his family_remain absent from his production. E.g., Steinsapir Decl. Exs. 13,
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~ `; 14 In the November 2 letter, Defendants provided two examples of such emails. The first is a

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N ~ Q ~, 16 "Security testimony." Steinsapir Decl. Ex. 13. In this exchange, Robson describes a purported
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a 18 and asks his mother what she thinks. Id. Eight minutes later, Ms. Robson responded:"Wow. None
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21 this email, making its production by Robson himselfcritical. Id.; Steinsapir Decl. Exs. 14-15.

22 The second example is an October 2012 email exchange with the subject line "Questions

23 for Mom — 2.0." Id. Ex. 16. Robson initiated this exchange on October 4, 2012, by asking his
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24 mother numerous questions about, among other things, his visits to the United States when he was

25 a child, his interactions with Michael Jackson, and the allegations of abuse. Id. Documents

26 produced by Ms. Robson demonstrate that she and Robson exchanged numerous emails under this

27 subject-line. Id. Ex. 17. However, none of those emails have been produced by Robson. Id. ¶ 25.

28 According to the November 4 email from Robson's counsel, Robson was asked to search

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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE
 1 for these two particular emails and was able to locate them. Steinsapir Decl. Ex. 12. Defendants

2 were told that these emails would be included in Robson's latest supplemental production at Bates
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3 numbers WR/MSF004099-4100. Id. Unfortunately, that was not the case—and Robson testified at

4 his recent deposition that he had in fact not specifically searchedfor these emails. Id. Ex. 18 at

5 52:5-53:12. Although Robson's February 15 "Security testimony" email to his mother appears at

6 WR/MSF004099, his mother's response remains entirely absent from his production. Id. ¶ 20. In
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7 addition, the "Questions for Mom — 2.0" exchange is not included in Robson's latest production.

8 Contrary to counsel's representations, WR/MSF004100 has nothing to do with these emails, but is
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13 Robson redacted the entire content of numerous emails in his October and November.
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14 .productions. Many of those redactions are clearly improper. For example, Robson has fully
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16 client privilege and the work product doctrine. Steinsapir Decl. Ex. 21. Indeed, more thanfifty are
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21 .legal consultation. Id. Exs. 18 at 194:5-195:5, 21-25. Along those lines, Robson has redacted

22 numerous emails between himself, Yu, and Alan Nevins. ld. Ex. 21. Nevins is a literary agent who

23 was helping Robson shop a book that Robson wrote about his alleged abuse to publishers prior to
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24 the initiation of this lawsuit. Id. Ex. 25-26. It appears from Robson's production that Robson. has

25 followed a bright line rule and redacted all emails on which Yu is copied, regardless of its content:

26 For example,

27

28

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 . Id. Indeed, because Robson has redacted some emails in email chains

with Nevins (those where Yu is copied)—but not others (where Yu is not copied)—often
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Defendants are privy to the response to a query but not the query itself, or vice versa.

D. Robson Refuses to Produce the Metadata for His Book.

As discussed above, emails produced by Robson on October 17 indicate that Robson wrote

a book regarding the alleged abuse, which he actively shopped to publishers prior to filing this
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7 .lawsuit. Steinsapir Decl. Exs. 25-26. Nevertheless, Robson failed to produce any drafts or

8 treatments of his book in the many years that this case, and the related probate proceedings, were
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10 treatments of his book. Id. Ex. 28. Given its clear relevance to Robson's allegations, Defendants
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14 continued,"the answer is simple, because he has not been able to locate it despite it being
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I7 book—a draft which states "for my attorneys" across the top of each page. Id. Ex. 29. As a result,

a 18 Robson's counsel now claimed that Robson previously withheld this draft of his book not because
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7. 19 he could not find it (as he stated onlyfour days earlier), but based on the attorney-client privilege.
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20 Id. Notably, even though Robson now claims that he had been withholding the draft as privileged,
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21 Robson's counsel stated that Robson would "waive privilege" and produce the draft. Id.

22 Given Robson's prior failure to produce this critical document(among others)—and

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2 Remarkably, Robsonfailed to produce any documents about the book he was writing prior to
filing this lawsuit during the extensive discovery period in proceedings on Robson's probate
25
petition. Such documents were clearly responsive to the Estate's document requests in those
proceedings. In those proceedings, Robson agreed to produce all documents and communications
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relating to "potential work on projects relating to Michael Jackson between June 25, 2009 and
27
May 1, 2013." Steinsapir Decl., Ex. 36 at 6-7 (Request Nos. 4-5). Yet Robson never produced
anything relating to his book about Michael Jackson during the probate proceedings.
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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 1 Robson's shifting explanations for why he hadn't produced itDefendants' counsel immediately

2 requested that all drafts of the book be produced in electronic form, with metadata intact.
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3 Steinsapir Decl. Ex. 29. On October 25, 2016, Robson's counsel indicated that he had only

4 received a copy of the book in PDF format—which was "created recently"—and that a special

5 program was necessary to open the "original, publishing format." Id. Ex. 30. Defendants requested

6 both the PDF version and the electronic file in its original format. Id. On October 27, Robson
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7 produced a single draft of his book (Bates numbers WR/MSF 003983 through WR/MSF 004094).

8 Steinsapir Decl. ¶ 16. Robson has not produced any other drafts or treatments of his book and
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Q~ ~ 11 Finally, Robson has failed to produce documents in full and complete form, because he has
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~, 13 that numerous emails in his production were missing attachments. Steinsapir Decl. Ex. 11. To
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a 1g Id. Ex 31.
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x 20 attachments to emails was a global problem with his production, stating that "[w]hen Mr. Robson
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21 produced the emails in this case, he did so by exporting his emails to pd£ Doing such does not

22 print out the attachments." Steinsapir Decl. Ex. 12. Robson then agreed to produce the attachments

23 to two of the emails referenced in Defendants' letter. Id. In doing so, however, Robson failed to
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24 reproduce the cover emails together with the attachments, such that the cover emails and

25 corresponding attachments are in completely different parts of the production. Id. ¶ 40. Worse,

26 despite recognizing a global issue with his production, Robson failed to produce attachments for

27 any other emails. Id. Ex. 12. Instead, Robson improperly attempted to shift the burden to

28 Defendants to try to identify every email in his production that is missing attachments. Id.

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NOTICE OF MOTION AND MOTIOI*1 TO COMPEL ROBSON'S COMPLIANCE
 1 II III. ARGUMENT

2 "If a party filing a response to a demand for inspection, copying, testing, or sampling ...
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3 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that

4 party's statement of compliance, the demanding party inay move for an order compelling

5 compliance." Civ. Proc. Code § 2031.320(a). "Except as provided in subdivision (d), the court

6 shall impose a monetary sanction under Chapter 7 ... against any party, person, or attorney who
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7 unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds

8 that the one subject to the sanction acted with substantial justification or that other circumstances
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a 9 make the imposition of the sanction unjust." Id. § 2031.320(b)(emphasis added).
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11 Produce and Detail His Efforts to Search for and Produce Documents.
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13 production was complete. Steinsapir Decl. Exs. 1, 7, 10, 12. Every time, Defendants have found
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14 evidence to the contrary and challenged Robson's representations. And every time Robson has
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20 responsive to Defendants' document requests, but to this day, Robson has failed to produce them.
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21. In light of this evidence, there are only three possibilities:(1)Robson has failed to. perform

22 a reasonably diligent search for documents responsive to Defendants' requests;(2)Robson is

23 willfully withholding responsive documents; or(3) Robson has destroyed relevant evidence.
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24 Under any of these scenarios, an order requiring Robson to produce all responsive documents in

25 his possession, custody, and control by a date certain, and to explain his potential spoliation of

26 responsive documents, is necessary and appropriate.

27 Moreover, since the record demonstrates that Robson is either withholding documents or

28 ~ I has failed to conduct a diligent search to find them, Defendants request that Robson be compelled

9 COMPEL ROBSON'S COMPLIANCE

NOTICE OF MOTION AND MOTION TO
 1 to provide sufficient details regarding his efforts to locate documents to ensure that Robson

2 satisfies his discovery obligations going forward. Where "[t]he record leaves good reason to
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3 believe that[a party] is either withholding documents, or has failed to conduct a diligent search to

4 find them,... [that party] should provide, pursuant to Code of Civil Procedure § 2031.230, a

5 declaration or declarations detailing the efforts expended to locate such documents." Doppes v.

6 Bentley Motors, Inc., 174 Ca1.App.4th 967, 978 (2009).

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7' B. Robson Must Remove Improper Redactions.

8 In his supplemental productions, Robson has entirely redacted communications that are
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a' 9 clearly not privileged. Robson should be ordered to reproduce these documents without redaction.
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14 C Robson and his mother alone—perhaps the two most important (living) witnesses in this case. Id.
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17 key concept here is need to know." Ins. Co. ofN. Am. v. Superior Court, 108 Ca1.App.3d 758, 765
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a 18 (1980). See also D.I. Chadbourne, Inc. v. Superior Court, 60 Ca1,2d 723, 735 (1964); Total Recall
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z 19 Techs. v. Luckey, 2016 WL 1298863, at *4(N.D. Cal. 2016)(friend and business advisor had no

20 stake- in litigation and lacked any "need to know" contents of privileged communication).
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21 Nevertheless, Robson's counsel has taken the baseless position that his correspondence

22 with family members is akin to attorney-directed witness statements and thus subject to attorney

23 work product protection. See Steinsapir Dec. Ex. 12. That is absurd. Robson is the plaintiff in this
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24 action; he is not a disinterested investigator hired by an attorney. Moreover, the redacted

25 documents are not witness statements, but email exchanges between Robson and his family

26 members that span more than two years (from May 2014 through June 2016). Disclosure of these

27 emails simply does not further the purpose of attorney work product protection, to protect an

28 attorneys' impressions, conclusions, or opinions. -Cal. Civ. Proc. Code § 2018.030(a).

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCB

 1 ~~ Accordingly; Robson has not come close to meeting his burden of demonstrating that the redacted

2 correspondence with his family are entitled to any level of work product protection. D.I
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`3 Chadbourne, 60 Cal2d at 729 (parry claiming privilege has burden to show that it applies).

4 In addition, even- if Robson's emails with his family qualified as attorney-directed witness

5 statements—and they do not—the emails would only be entitled to qualified work product

6 protection. Coito v. Sup. Ct, 54 Ca1.4th 480, 499(1999). Accordingly, the Court should still order
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7 Robson to produce his correspondence with his family members because denial of disclosure

8 would unfairly prejudice Defendants in preparing their defense and result in injustice. Cal Civ.
a 9 Proc. Code § 2018.030(b). The evidence shows that Robson's own, independent memory of his
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.
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11 his interactions with Jackson. Steinsapir Decl. Exs. 13, 16-17, 37-42. For example, on August 27,
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20 2. Robson Has Improperly Redacted Emails Copying Helen Yu.
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21 In addition to redacting correspondence with his family, Robson has improperly redacted

22 almost every single email on which Helen Yu is copied—regardless of the content of the email or

23 who else is copied. While Robson may have a valid privilege claim with respect to some
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24. communications with Yu, her mere presence does not automatically cloak all communications in

25 privilege. Yet that is precisely Robson's position. For example, at Robson's deposition, Robson

'26 was instructed not fo answer questions about statements made by book publishersfor the sole
27 ~ ~ reason that Yu was present when statements were made. Steinsapir Decl. Ex. 18 at 27:1-28:13.

28 To the extent Ms. Yu is copied on the email as a family friend or business advisor—rather

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 1 than as a legal advisorthe emails are not privileged. The California Supreme Court has expressly

2 .rejected the misguided "view" by many "that the attorney-client privilege applies whenever issues
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3 touching upon legal matters are discussed with an attorney. That has never been the law." People

4 v. Gionis, 9 Ca1.4th 1196, 1210 (1995)."It is settled that the attorney-client privilege is

5 inapplicable where the attorney merely acts as a negotiator for the client, gives business advice or

6 otherwise acts as a business agent." Chicago Title Ins. Co. v. Sup. Ct., 174 Ca1.App.3d 1142, 1151
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7 (1985). Robson's counsel has admitted that that was the case here. Steinsapir Decl. Ex. 34.

8 Moreover, as discussed, many of the einails include third-parties who are not reasonably
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a 9 necessary to the legal consultation. Steinsapir Decl. Ex. 22-25. The presence of unnecessary third
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11 C. :Robson Should Produce All Missing Attachments to :mails.
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14 einails to pdf. Doing such does not print out the attachments." Steinsapir Decl. Ex. 12 at 3
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15 (emphasis added). Nevertheless, Robson has failed to remedy this issue by reproducing his emails
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21 determine that-some emails are missing attachments—based on a "paperclip" symbol, a document

22 icon, or a reference to an attachment in the text of an email (e.g., id. Exs. 19, 23, 31-32)—it is

23 impossible to identify every missing attachment without access to the original email files.
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24 Moreover, when Robson ultimately did produce two of the missing attachments, he failed

25 to reproduce theirs with their cover emails. Id. ¶ 40. Producing attachments separatedfrom their

26 cover emails does not comply with the directive that electronically stored information be produced
27 "in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable."

28 Civ. Proc. Code § 2031.280(d)(1). Cf. Kayne v. Grande Holdings, Ltd., 198 Cal.App.4th 1470,

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 1472(2011)(affirming $74,809 award for documents produced in disordered state).

D. Robson Should Reproduce Electronically Stored Documents with Metadata.

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Section 2031.280 requires that a party responding to document requests produce

electronically stored information "in the form or forms in which it is ordinarily maintained or in a

form that is reasonably usable." Civ. Proc. Code § 2031.280(d)(1); see also id.§ 2031.280.(a)

(requiring documents be produced "as they are kept in the usual course of business"). Robs.on has
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failed to do so. Rather, Robson has produced thousands of pages of emails and electronic files as

paper printouts. Steinsapir Decl. ¶¶ 14-15. More importantly, Robson has produced the sole draft
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~ 11 As outlined above, as soon as Defendants learned that Robson had authored a book, they
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20 a copy as a recently created PDF. Steinsapir Decl. Ex. 30. "[A]s to the original, publishing
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21 format," he continued,"I have to find a way to get it. I will probably have to have the program

22 downloaded onto one of our computers. Please advise." Id. Defendants' counsel promptly

23 requested the PDF in addition to the "original electronic file in its original format," stating,"We
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24 can find out the program we need to open it." Id. Nevertheless, Robson only produced a PDF and

25 now refuses to produce the originalfile or any metadata. Id. Ex. 12. Robson has offered no

26 explanation for his sudden unwillingness to produce the book in its original format with metadata.
27 Because the metadata contains critical information about the document that cannot be

28 deduced from a recently created PDF copy, Robson's book has not been produced in a reasonably

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 1 usable form. See Ellis v. Toshiba Am. Info. Sys., Inc., 218 Cal.App.4th 853, 862 n.6(2013)

2 (persuasive federal authority holds that "production of electronically stored information in PDF
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3 format may not be sufficient if the requesting party can show that the format "`[is] not "reasonably

4 usable" and that the native format, with accompanying metadata, meet the criteria of"reasonably

5 usable" whereas the PDF format does] not."'), quoting City ofColton v. Am. Promotional Events,

6 Inc., 277 F.R.D. 578, 583(C.D. Cal. 2011); see also Kunkel Decl. ¶ 10. Similarly, Robson's
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7 emails and other electronic files have not been produced in a reasonably usable form. Indeed, the

8 bankers' boxes of paper printouts:(1) are not electronically searchable;(2) are missing their
a 9 attachments;(3) are not separated into individual documents; and (4)lack the metadata required to
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a 10 identify basic information, such as the documents' format, creation date, modification date, etc.
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11 E. Robson Should Submit to a Forensic Examination of His Accounts.

~ ~~~ 12 Ro.bson's discovery abuses, as outlined above,justify a forensic examination of Robson's

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production by virtue of documents produced by third-parties to this

~ ~LL . 14 deficiencies with Robson's
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Y7 additional responsive documents on at least three separate occasions after he had represented that
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18 his production was complete. As many of the most recently produced documents are highly
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7 19 relevant to this action, the fact that they were not produced previously is extremely troubling.

20 Defendants should not be forced to continue playing "whack-a-mole" in response to

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21 Robson's document productions. Under these circumstances, athird-party forensic examination of

22 Robson's accounts, computers, and devices, is the only way to ensure that Defendants will obtain

23 the discovery. to which they are entitled in defending themselves against Robson's claims. Ellis,
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24 218 Ca1.App.4th at 881 (discovery abuses justified order authorizing inspection of plaintiff's hard

25 drive); Doppes, 174 Cal.App.4th at 979 (trial court required defendant to provide plaintiff access

26 to its email files via computer terminal based on prior failure to produce responsive documents);

27 R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Ca1.App.4th 486, 498(1999)(request for access to

28 computer hard drive was not a fishing expedition and defendants were entitled to discovery of the

NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE

 1 computers on which plaintiff prepared contracts at issue in the case).

2 Defendants have retained Michael Kunkel of Setec Security Technologies, Inc., to perform
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3 such an examination. He explains the process in his accompanying declaration, and explains how

4 Robson's privacy and privilege concerns can be addressed. Kunkel Decl. ¶¶ 4-11. Robson has

5 .provided interrogatory responses listing his computers and devices. Steinsapir Decl., Ex. 35.

6 F. Robson Should Be Sanctioned.

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7 Finally; the Court should impose sanctions upon Robson for his failure to comply with his

8 discovery obligations. The Code of Civil Procedure states that the Court "shall impose" sanctions
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a 9 against the losing party of a motion to compel, unless the party has "substantial justification," or
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10 the imposition of the sanction would be "unjust." Civ. Proc. Code § 2031.320(b); see Id. §§
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A: ~ ~ 11 2023.010(d),(h). "Whenever one party's improper actions—even if not `willful'=in seeking or
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W ~~~ 14 (2009). Monetary sanctions are appropriate to cover "reasonable expenses, including attorney's

z ¢zrn
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16 Code § 2023.030(a). Reasonable expenses include time spent researching and preparing the
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a 18 218 Cal.App.4th at 880 (affirming $165,000 award for discovery abuses); Kayne, 198 Ca1.App.4th

z 19 at 1472(affirming $74,809 award for documents produced in a disordered state).

.
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x 20 Sanctions are warranted here. Defendants seek information and documents that are directly
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21 relevant to. Robson's claims. These are documents that Robson agreed to produce, but nevertheless

22 failed to produce, despite being given every opportunity to cure the deficiencies in his production.

23 There is no justification,.let alone a substantial one, for Robson's patent failure to produce email
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24 exchanges with his family or for his redactions of clearly non-privileged correspondence. Nor has

25 Robson offered any cognizable justification for his refusal to produce documents in a complete

26 and reasonably usable form with attachments and metadata intact. Defendants are therefore

27 entitled to compensation for the time spent in bringing this motion, and the Court should issue

28 monetary sanctions against Robson in the amount of $17,100. Steinsapir Decl. ¶ 52.

15
NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE
 1 DATED: December 27, 2016 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

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4 Attorney for MJJ Productions, Inc. and MJJ Ventures, Inc.
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NOTICE OF MOTION AND MOTION TO COMPEL ROBSON'S COMPLIANCE