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JEFFREY F. RYAN (State Bar No. 129079) B
F E E4 ECOUNTY V
LAW OFFICES OF JEFFREY F. RYAN SAN MATEO
The Fitzpatrick Building ,
DEC 1 4 2017
2000 Broadway Street
Redwood City, California 94063-1802
Phone: (650) 922-2341
Email: jeff@jeffreyryanlaw.com
Attorneys for Plaintiffs, 17—CIV—02888
FRED H. GEISLER, NORMAN C. FLEMING, and GENA ZISCHKE ms
Declaration in Support
SUPERIOR COURT OF THE STATE OF CALIFORNIA
“inn ||||||||||||l llllllllll
COUNTY OF SAN MATEO ‘-
BY FAX
10 CIVIL DIVISION — SOUTHERN BRANCH
11 FRED H. GEISLER, M.D., Ph.D., an Case No.: 17CIV02888
individual, NORMAN C. FLEMING, an
12
ififliziifizl: Ziéc‘i’fififiéfifiifignm behalf EgggPARApogTIg;gggfggggggm
13 of RHAUSLER, INC.,
GEISLER’S REPLY BRIEF IN SUPPORT
14 OF MOTION FOR ORDER
COMPELLING FURTHER RESPONSES
Pl amt' ff3’
.
15 1
FROM DEFENDANT TERRY
16 v. JOHNSTON RE FORM
INTERROGATORIES, SET ONE,
17 TERRY J. JOHNSTON, an individual; KATIE AND REQUEST FOR MONETARY
SIMS, CPA, an individual; ROBERT JOHN S ANCTIONS
18 GLYNN, JR., an individual; 3COR
MEDICAL, INC., a California Co oration; . .
19 TEDAN SURGICAL INNOVATIrs, LLC Complalnt Wed! June 28, 2017
a Texas Limited Liability Company, & DOES Trial: Not Set
20 1 to 25, Inclusive,
21 Defendants, Initial Hearing Date: December 21, 2017
New Hearing Date: January 23, 2018
22 and RHAUSLER, IN C., a California Time: 9:00 a.m.
Corporation, Dept.: Law and Motion
23
24 Nominal Defendant (Reply Brief is filed and served concurrently
herewith)
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RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM
TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS
GEISLER, E T AL. vs. JOHNSTON, E TAL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. l7CIV02888
1, Jeffrey F. Ryan, declare:
1. I am an attorney at law, licensed to practice in all of the courts in the State of
California, and am the lead litigation attorney and counsel of record for Plaintiffs Fred H.
Geisler, M.D., Ph.D., Norman C. Fleming, and Gena Zischke (collectively “Plaintiffs”) in this
matter. I have personal knowledge of the facts set forth in this declaration except as those
matters stated on information and belief and as to those matters, I believe them to be true. If
called as a witness, I could and would testify competently to the matters set forth below. I
make this declaration. in support of Plaintiff Fred Geisler’s (“Dr. Geisler”) Reply Brief in
support of Motion for Order Compelling Further Responses from Defendant Terry Johnston
10 Re Form Interrogatories, Set One, and Request for Monetary Sanctions (the “Motion”).
ll 2. Mr. Johnston’s counsel (Mr. Jacobs) never asked for an extension of time to
12 provide further responses to the Form Interrogatories in dispute, and did not provide a
13 substantive response — or'a concrete time frame as to when I may expect a substantive
14 response — to any of my “meet and confer” letters regarding this discovery set by November
15 16, 2017. Accordingly, my office filed the Motion on November 17, 2017.
l6 3. Mr.'Jacobs failed to make any attempt to substantively address the discovery in
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dispute until M after I sent my initial 30-page “meet and confer” letter to Mr. Jacobs (on
October 31, 2017), which was eleven (11) days after the Motion was filed and ten (10) days
19 before the deadline for filing and service of Mr. Johnston’s opposition papers to the Motion.
20 That is, Mr. Jacobs finally provided a substantive response and began an attempt to “meet and
21 confer” with me on November 28, 2017. See, Exhibit M to Mr. Jacobs’ Declaration in
22 support of Mr. Johnston’s Opposition.
23 4. Mr. Jacobs belatedly provided the details of his other work commitments and
24 deadlines to me — presumably for the purpose of explaining the prolonged delay in providing
25 a response to my “meet and confer” letters in an attempt to avoid the imposition of monetary
26 sanctions against him and Mr. Johnston — for the first time in Mr. Johnston’s opposition
27 papers. See, Memorandum of Points and Authorities in Opposition to the Motion at 423-12,
28 and Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition at 11
9.
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RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM
TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS
GEISLER, ET AL. vs. JOHNSTON, ET AL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
5. Mr. Johnston has propounded written discovery to each of the Plaintiffs in this
action, and Plaintiffs have a pending Motion for Extension of Time Within. Which to Respond
to Defendant Terry Johnston’s Request for Production of Documents and Things, Set One,
scheduled for hearing on January 3, 2018 in this Court.
6. Since the filing and service of the Motion on November 17, 2017, my
colleague (Nicole Ossi) and I have spent several hours advising Mr. Jacobs as to the reasons
why Mr. Johnston’s objection to the defined term “INCIDENT” in connection with Form
Interrogatory Nos. 12.2, 12.3, and 12.6 in the context of this lawsuit is inappropriate and lacks
merit. (See, Exhibits F and N to Mr. Jacobs’ Declaration in support of Mr. Johnston’s
10 Opposition!)
11 7. On December 4, 2017, I sent a letter to Mr. Jacobs. In that letter, 1 stated the
12 following, in part, with respect to the defined term “INCIDENT” as that term is used in the set
.
13 of Form Interrogatories in dispute:
14 The unpublished decision you cite in your letter dated November 28,
2017 (Clark v. Hoag Mem ’1 Hosp. Presbyterian, 2017 Cal. App. Unpub. LEXIS
15 2310 at 17) is not persuasive authority....and the decision has no precedential
value in this action. Your reference to the Guide on Form Interrogatories
16 published by the Sacramento County Public Law Library & Civil Self Help
Center and Wei] & Brown’s California Practice Guide: Civil Procedure Before
17 Trial (The Rutter Group) are also not persuasive authorities in the context of this
lawsuit.
18
....Dr. Geisler provided guidance on the definition of the term
19 ‘INCIDENT’ to make it applicable to this lawsuit which spans more than nine
(9) years and involves multiple parties and multiple causes of action. For
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purposes of this set of Form Interrogatories, ‘INCIDENT’ was defined as ‘The
allegations contained in the First Amended Verified Complaint in this action
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San Mateo County Superior Court Case No. 17—CIV—02888.’[f°°mete owned]
22
Although the operative pleading is now the Second Amended Verified
Complaint (‘Second Amended Complaint’), the First Amended Verified
23
Complaint was the operative pleading at the time the discovery was propounded.
We continue to ask Mr. Johnston to provide further responses based on the
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allegations contained in the Second Amended Complaint....
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Exhibits F and N to the Declaration of James L. Jacobs in support of Mr. Johnston’s Opposition to the Motion
(my “meet and confer” letter to Mr. Jacobs dated December 4, 2017) are identical. Accordingly, Exhibit N is a
28 duplicate.
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RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM
TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS
GEISLER, E T AL. vs. JOHNSTON, ET AL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
Logic andcommon sense dictate that we are not asking, and have
never asked, Mr. Johnston to respond to allegations and claims contained in
the operative pleading (currently the Second Amended Complaint,
previously the First Amended Complaint at the time this discovery set was
propounded on Mr. Johnston) which are not made against him or which do
not pertain to‘him. [Emphasis added, not in original.]
Toward that end, in an attempt to provide you and Mr. Johnston with
additional guidance on the defined term ‘INCIDENT’ so that you would be able
to provide substantive, meaningful responses to these Interrogatories, we set
forth in detail numerous allegations and claims made against Mr. Johnston in the
operative pleading. Our endeavor (in the October 31, 2017 ‘meet and confer’
letter and Dr. Geisler’s Rule 3.1345 Statement in support of the Motion)
highlights the appropriateness of the defined term as used in this set of Form
Interrogatories. We believe that, in the context of this lawsuit, the definition of
‘INCIDENT’ comports with legal requirements and common sense. There is no
10
legitimate basis for narrowing the definition of ‘INCIDENT’ to w
of the items
ll specified in your letter dated November 28, 2017.
12
While we believe that we have provided you and Mr. Johnston with
adequate guidance on the meaning of the term as currently defined, we are
l3 certainly amenable to entertaining other proposed definitions of the term
‘INCIDENT’ that you may offer. Mr. Johnston has not provided any
14 substantive responses to Interrogatory Nos. 12.2, 12.3, or 12.6 to date, so he
would not be prejudiced by providing further Code-Compliant, verified
15 responses based on the allegations and claims made against him in the Second
Amended Complaint.
l6
17 See, Exhibit F (duplicated at Exhibit N) to Mr. Jacobs’ Declaration in support of Mr.
18 Johnston’s Opposition.
19 8. Despite my invitation, Mr. Jacobs never offered to define “INCIDENT” or
20 suggested any definition of the term that he and Mr. Johnston determined to be acceptable.
21 9. On December 6, 2017, Mr. Jacobs — fully aware that I was in deposition and
22 unavailable — sent an email to me at 4:03 pm. regarding the Form Interrogatories in dispute
23 and requested a response “this afternoon/evening given the deadlines in front of us”. I asked-
24 my colleague (Ms. Ossi) to respond to Mr. Jacobs’ email because I was in deposition. Ms.
25 Ossi responded at 6:25 pm. on December 6, 2017, and wrote in part the following regarding
26 the defined term “INCIDENT” as that term is used in this set of Form Interrogatories:
27 ///
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RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM
TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS
GEISLER, E TAL. vs. JOHNSTON, ETAL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
Form Interrogatory Nos. 12.2, 12.3, and 12.6 — Despite our best efforts, it appears
that we have not reached an agreement on the definition of the term ‘INCIDENT’
that is acceptable to you/Mr. Johnston. You are correct that, until and unless we
are able to reach an agreement on this defined term, the Motion will proceed on
this basis as to these Form Interrogatories.
I was one of the recipients of this email sent by Ms. Ossi to Mr. Jacobs dated December 6,
2017.- See, Exhibit G to Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition.
10. The merit of Johnston’s objection to these particular three (3) Form
Interrogatories (Interrogatory Nos. 12.2, 12.3, and 12.6) on the basis of the defined term
“INCIDENT” is dubious because Johnston provided substantive responses to other 12-series
Form Interrogatories which also ask for information pertaining to the “INCIDENT” (e.g.,
10 Interrogatory Nos. 12.4 and 12.5). See, Exhibit B to my Declaration in support of the Motion.
11 11. On December 4, 2017, I further addressed Mr. Johnston’s objection to
12 Interrogatory Nos. 12.2, 12.3, and 12.6 “to the extent” they seek information protected by the
l3 attomey-client privilege and/or the attorney work product doctrine. In my letter to Mr. Jacobs
l4 dated December 4, 2017, I stated in part:
15 Form Interrogatory Nos. 12.2, 12.3, and 12.6 do not necessarily seek
information protected by. the attomey-client privilege or the attorney work
16 product doctrine. If°°m°te °mm°d1 Mr. Johnston my be able to properly respond to
these Interrogatories, without disclosing information protected from disclosure
17 by any privilege. Dr. Geisler does not contend that the information responsive .
to these Interrogatories cannot — under any circumstances — be protected by the
18 attorney-client privilege or the attorney work product doctrine. Dr. Geisler’s
position is that Mr. Johnston’s boilerplate privilege objections — without more —
19 lack merit. To the extent that Mr. Johnston is able to properly respond to these
Interrogatories without disclosing information protected from disclosure by the
20
attomey—client privilege or the attorney work product doctrine, he has an
affirmative duty to do so. (Code Civ. Proc. §2030.220(a).)
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The authority cited in your letter dated November 2[8], 2017 (Cairo v.
Superior Court (2012) 54 Cal.4th 480) supports Dr. Geisler’s position. In Coito,
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the California Supreme Court stated in relevant part:
24 Because it is not evident that form interrogatory No. 12.3 implicates the
policies underlying the work product privilege in all or even most cases, we
25 hold that information responsive to form interrogatory No. 12.3 is not
automatically entitled as a matter of law to absolute or qualified work
26 product privilege. Instead, the interrogatory usually must be answered.
However, an objecting party may be entitled to protection if it can make a
27 preliminary or foundational showingr that answering the interrogatory would
reveal the attomey’s tactics, impressions, or evaluation of the case, or would
28 result in opposing counsel taking undue advantage of the attorney's industry or
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RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM
TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS
GEISLER, E TAL. vs. JOHNSTON, E TAL."—‘ SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
efforts. Upon such a showing, the trial court should then determine, by making
an in camera inspection if necessary, whether absolute or qualified work product
protection applies to the material in dispute. [Emphasis added, not in original.]
(Coito, supra, 54 Cal.4th 480 at 502.)
‘[A] responding party may object to an interrogatory that seeks
privileged information by clearly stating the objection and the particular
privilege invoked. But the existence of a document containing privileged
information is not privileged. [Citations.] Interrogatories may be used to
discover the existence of documents in the other party's possession. [Citation] If
an interrogatory asks the responding party to identify a document, an adequate
response must include a description of the document. [Citation.]’ (Best
Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1190, citing
Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293.)
‘A ‘party has ‘no right to refuse to identify documents in response to
interrogatories,’even if [it] may properly refuse to produce them later, based
10
upon a claim of privilege. [Citation.]’ (Hernandez v. Superior Court, supra, 112
Cal.App.4th at p. 294.)’ (Best Products, Inc., supra, 119 Cal.App.4th 1181 at
ll 1190)
12 See, Exhibit F (duplicated at Exhibit N) to Mr. Jacobs’ Declaration in support of Mr.
13 Johnston’s Opposition.
14 12. Two days later, on December 6, 2017, my colleague (Ms. Ossi) responded to
15 Mr. Jacobs’ request for additional “clarification” with respect to Dr. Geisler’s position
16 regarding the objections made by Mr. Johnston to Form Interrogatory Nos. 12.2, 12.3, and
17 12.6 on the grounds of attomey-clients privilege and the attorney work product doctrine. Ms.
18 Ossi wrote in relevant part:
19 ........................................................................................
20 ....We do not wish to belabor this point, but believe that Mr. Johnston
should be able to make the preliminary or foundational showing (e.g., in the
21 form of a privilege log or other written information) which would not require
disclosure of privileged information or attorney work product or an in camera
22 review. If Mr. Johnston is able to make the requisite showing, the Court would
then determine (by making an in camera inspection, if necessary) whether
23 absolute or qualified work production protection applies to the material in
dispute. Again, the discovery in dispute is Form Interrogatories. Dr. Geisler is
24
asking Mr. Johnston to provide certain information and identify — not produce —
certain documents responsive to Form Interrogatories 12.2, 12.3, and 12.6.
25
26 I was one of the recipients of this email sent by Ms. Ossi to Mr. Jacobs dated December 6,
27 2017. See, Exhibit G to Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition.
28 ///
_ 5-
RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM
TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS
GEISLER, E TAL. vs. JOHNSTON, ET AL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17 CIV02888
13. Mr. Jacobs’ final comments regarding Mr. Johnston’s objection to Form
Interrogatory Nos. 12.2, 12.3,, and 12.6 on the grounds of attorney-client privilege and the
attorney work product doctrine include a concession that the parties may actually be in
agreement and that, if there is ever a disagreement between the parties as to whether the
preliminary or foundational showing was met, the‘ issue would “make its way to a Judge to
decide.” See, Exhibit G to Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition.
14. After Ms. Ossi and I engaged in extensive “meet and confer” efforts with Mr.
Jacobs regarding the “agreements alleged in the pleadings” which are the subject of the 50-
series Form Interrogatories, Mr. Jacobs agreed that Mr. Johnston would provide further
10 verified responses to Interrogatory Nos. 50.1-50.6 without objections. See, Exhibit C to my
ll Declaration in support of the Motion; see also, Exhibits F (duplicated at Exhibit N), G, and M
12 to Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition.
13 15. On December 11, 2017, Mr. Jacobs’ office served — on behalf of Mr. Johnston
14 — further verified responses to Form Interrogatory Nos. 50.1—50.6. Accordingly, Dr. Geisler
15 has withdrawn his request for further responses to Form Interrogatory Nos. 50.1-50.6 from
16 this Motion.
17 16. However. Dr. Geisler’s Motion continues to include a request for monetary
18 sanctions against Mr. Johnston and his counsel (Mr. Jacobs) in connection with Form
19 Interrogatory Nos. 50.1-50.6 because Dr. Geisler, Ms. Ossi, and I “should not have been
20 forced to spend this much time and [Dr. Geisler’s] money to get [Mr. Jacobs] and [his] client
21 to meet their obligations under the discovery act.” Ms. Ossi and I should not have been
22 forced to identify the “agreements alleged in the pleadings,” or to provide Mr. Jacobs with
23 copies of the “Rhausler, Inc. Partners Working Agreement” and “Second Partners Working
24 Agreement” he and/or Mr. Johnston already had copies of, in order for Mr. Johnston and his
25 counsel (Mr. Jacobs) to provide substantive further responses to these Form Interrogatories,
26 and we should not have been forced to spend numerous hours “meeting and conferring” with
27 Mr. Jacobs regarding these straightforward Form Interrogatories. See, Exhibits C and E to my
28 Declaration in support of the Motion; see also, Exhibits F (duplicated at Exhibit N) and G to
_ 6 _
RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM
TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS
GEISLER, ET AL. vs. JOHNSTON, ET AL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. l7CIV02888 -
Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition; see also, Exhibit B to this
Reply Declaration in support of the Motion.
17. On December 4, 2017 — as part of my ongoing commitment to “meet and
confer” with Mr. Jacobs in an attempt to productively work through the issues in dispute and
resolve this matter informally — 1 addressed Mr. Johnston’s objection to Form Interrogatory
No. 15.1 made for the first time in Mr. Jacobs’ letter dated November 28, 2017 on the basis
that Mr. Johnston had not filed any responsive pleading in the case. I explained to Mr. Jacobs
that I was “under the impression that Mr. Johnston would have filed a responsive pleading in
this case by now,” but “due to recent developments in the procedural posture of this case,”
10 Mr. Johnston had not filed (and was not obligated to file) a responsive pleading in the case
11 until February 2018. l acknowledged that, under these circumstances, this Interrogatory was
12 premature. See, Exhibit F (duplicated at Exhibit N) to Mr. Jacobs’ Declaration in support of
13 Johnston’s Opposition.
14 18. Accordingly. Dr. Geisler has withdrawn (without prejudice) his request for a
15 fixrther response to Form Interrogatory No. 15.1 and the accompanying request for monetarv
16 sanctions associated with 15.] (only) from this Motion.
17 19. Since the filing and service of the Motion on November 17, 2017, I have sent
18 Mr. Jacobs two (2) more “meet and confer” letters. Ms. Ossi and I have spent several more
19 hours “meeting and conferring” and advising Mr. Johnston and Mr. Jacobs by email, as to the
20 reasons why Mr. Johnston’s objections to Form Interrogatory Nos. 12.2, 12.3, 12.6, 50.1.
21 50.2, 50.3, 50.4, 50.5, and 50.6 lack merit without substantial justification, and providing Mr.
22 Jacobs with documents he requested in order to provide further responses to Form
23 Interrogatory Nos. 50.1—50.6. A true and correct copy of my letter to Mr. Jacobs dated
24 November 29, 2017 is attached as Exhibit A to this Declaration. A true and correct copy of
25 the email chain from Ms. Ossi to Mr. Jacobs, attaching a copy of the Second Partners
26 working Agreement dated June 27, 2016, is attached as Exhibit B to this Declaration. I am a
27 recipient of the email attached as Exhibit B. See also, Exhibits F (duplicated at Exhibit N)
28 and G to Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition. Under these
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RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM
TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS
GEISLER, ET AL. vs. JOHNSTON, E TAL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
circumstances, imposition of a monetary sanction against Mr. Johnston and his counsel (Mr.
Jacobs) would not be unjust.
20. I do not believe that the “meet and confer” letters I sent to Mr. Jacobs
regarding other sets of written discovery not at issue in this Motion are relevant to the pending
dispute before the Court and, therefore, I have not addressed the merits of Mr. Johnston’s
arguments regarding those matters in this Reply.
21. A substantial amount of Johnston’s Opposition, and Mr. Jacobs’ declaration
and accompanying exhibits in support of Mr. Johnston’s Opposition, is duplicative of
information and documents already supplied by my office (on behalf of Dr. Geisler) to the
10 Court in the moving papers and/or irrelevant and unnecessary to ruling on the merits of this
ll '
Motion. By way of example, Mr. Jacobs’ declaration is 377 pages (including Exhibits A-O).
12 Of those 377 pages, 314 pages are duplicates of exhibits attached to my declaration in support
l3 of the Motion, irrelevant to ruling on this Motion, or duplicates of exhibits attached to Mr.
14 Jacobs’ declaration in support of Mr. Johnston’s Opposition. Specifically, Exhibits A-D and
15 J-K to Mr. Jacobs’ declaration (84 pages including the exhibit tabs) are duplicates of Exhibits
l6 A-F to my declaration in support of the Motion. Exhibit E to Mr. Jacobs’ declaration (9 pages
17 including exhibit tab) is not persuasive authority, and Mr. Jacobs appears to be aware of that
18 fact because he does not ask the Court to take judicial notice of that “self-help” online
19 resource. Exhibits F and N to Mr. Jacobs’ declaration (each 28 pages including the exhibit
20 tab) are identical, so Exhibit N is an exact duplicate of Exhibit F. Exhibits H and I to Mr.
21 Jacobs’ declaration (193 pages including the exhibit tabs) are “meet and confer” letters that I
22 sent to Mr. Jacobs in connection with other discovery disputes that are not the subject of this
23 Motion and, therefore, are irrelevant to any of the issues pending before the Court in this
24 Motion.
I
25 22. Contrary to Mr. Jacobs’ representation that I did not respond to Mr. Jacobs’i
26 letter dated November 28, 2017 until December 4, 2017, I responded to that correspondence
27 on November 29 and December 4, 2017. See, Exhibit A to this Declaration; see also, Exhibit
28 F (duplicated at Exhibit N) to Mr. Jacobs’ Declaration in support of Mr. Johnston’s
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RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLIN G FURTHER RESPONSES FROM
TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS
GEISLER, E TAL. vs. JOHNSTON, E TAL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. l7CIV 02888
Opposition.
23. Dr. Geisler and I properly used the discovery process, persistently engaged in
good faith in “meet and confer” efforts to resolve this matter informally without the necessity
of Court intervention before fl after the Motion was filed and served, and acted with
substantial justification at all times. None of the Interrogatories in dispute was propounded to
cause annoyance, embarrassment, oppression, undue burden, or expense. The Motion was not
filed prematurely. I do not believe that there is any reasonable basis to award Mr. Johnston
monetary sanctions against Dr. Geisler or me.
10 I declare under penalty of perjury under the laws of the State of California that the
11 foregoing is true and correct. This declaration was executed on December 14, 2017 in
12 Redwood City, California.
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_-9_
RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM
TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS
GEISLER, ET AL. vs. JOHNSTON, E TAL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
EXHIBIT A
LAW OFFICES OF JEFFREY F. RYAN
AN ASSOCIATION OF ATTORNEYS
THE F lTZPATRlCK BUILDING
2000 BROADWAY STREET
REDWOOD CITY, CA 94063-1802
(650) 922-2341
www.jeffreyryanlaw.com
JEFFREY F. RYAN
jeff@jeffreyryanlaw.com
November 29, 2017
Via Email and U.‘S. Mail
James L. Jacobs, Esq.
GCA LAW PARTNERS LLP
2570 W. El Camino Real, Suite 400
Mountain View, CA 94040
Email: jjacobsgcbgealaweom
Re: Fred H. Geisler, MD, Ph.D. et al. vs. Terry
Johnston, et at.
San Mateo County Superior Court Case No.
17CIV02888
Response to Your November 28, 2017 Letter Re
Defendant Terry
Johnston’s Response to Fred Geisle‘r’s Form
Interrogatories, Set One
Dear Mr. Jacobs:
I write to confirm receipt of your letter dated
November 28, 2017, written in response to
my “meet and confer” letters dated October 31, November ‘
3, and November 13,2017 regarding
Defendant Terry Johnston’s Response to Fred
Geisler’s Form Interrogatories, Set One.
write to inform you that, although I remain I also
interested in productively working through the
concerning Mr. JohnstOn’s “response” to issues
Interrogatory Nos. 12.2; 12.3, 12.6, 15.1, and 50.1-
50.6,1 I am not able to substantively
respond to your letter in the abbreviated time fran‘ae
requested (i.e., 5 pm. today, less than 37 that you
hours after you sent the unsigned version of
and less than 30 hours after you sent the the letter
signed version of your November 28, 2017).
'
Dr. Geisler is no longer seeking a further
response to Form Interrogatory No. 12.7, as
Geisler’s pending Motion for Order stated in Plaintiff Fred
Compelling Further Responses from Defendant
Inte‘rrogatoriesa Set One, and Request for Terry Johnston Re Form
Monetary Sanctions (the “Motion” or “Dr. Geisler’s
Motion”).
James L. Jacobs, Esq.
November 29, 2017
Page 2
I intend to provide a substantive response to your letter at my earliest opportunity. Due
to deadlines in some of my‘other cases and other work commitments, I am hoping to respond by
early next week. That time frame should allow you adequate time to prepare Mr. Johnston’s
opposition to Dr. Geisler’s Motion, if we are not able to productively work through all the issues
and resolve this discovery dispute informally. At this time, I am not prepared to withdraw the
Motion.
I assure you that my inability to accommodate your abbreviated time frame to respond to
the substance of your letter is not a delay tactic, but simply a facet of running a busy litigation
practice.
Very truly yours,
LAW OFFICES OF JEFFREY F. RYAN
sso iation of Attorneys
JE REY F. RYA
FW
JFR/nmo
EXHIBIT B
From: Nicole Ossi
To: "Jimmy Jacobs"
Cc: jhagan@haganlaw.com; "Bob Luckinbill“; "Jeffrey Ryan"
Subject: RE: Geisler vs. Johnston Second Partners Working Agreement
Date: Thursday, December 07, 2017 9:34:21 AM
Attachments: Partners Working Agreement 2.6-27-2016.gdf
Jimmy,
Pursuant to your (and Jeff’s) request, attach I a copy of the Second Partners Working Agreement
dated June 27, 2016.
Nicole
Nicole M. Ossi, Esq.
Ossi Law Group
365 Lassenpark Circle
95136-2158
San Jose, California
Mobile: (408) 316-0088
This email may contain CONFlDEN'l‘lAL INFORMA’l'ION and may be subject to the attorney-chem privilege. it is intended only for the use of the
intended recipientts). lfyou are not an intended recipient of this communication. please be aware that any review. L56, dissemination. distribution,
domtloading. or copying of this communication is unauthorized and prohibited. In addition. if you have received this communication in error, please
immediately notify us by reply email. delete the communication and destroy all copies. Thank you.
From: Nicole Ossi [mailto:nossi@comcast.net]
Sent: Wednesday, December 06, 2017 8:59' PM
To: 'JimmyJacobs'
Cc: jhagan@haganlaw.com; 'Bob Luckinbill' ; 'Jeffrey Ryan'
'
~
Subject: RE: Geisler vs. Johnston
Jimmy,
ldefer to Jeff to respond to your request for a copy of the Second Partners Working Agreement
dated June 27, 2016.
Nicole
Nicole M. Ossi, Esq.
Ossi Law Group
365 Lassenpark Circle
San Jose, California 95136-2158
Mobile: (408) 316-0088
This email may contain CONFlDENTlAL lNFORVATlON and may be subject to the attorney-client privilege. it is intended only for the use oftlie
intended recipicnt(s). lfyou are not an intended recipient ofthis communication. please be aware that any review. use, dissemination, distribution.
doxmloading. or copying of this communication is unauthorized and prohibited. in addition, ifyou have received this communication in error. please
' \
irnmeciiatety notify us by reply email, delete the communication and destroy ali copies. Thank you.
From: JimmyJacobs [mailtgllaggbs@gcalaw.com]
Sent: Wednesday, December 06, 2017 4:13 PM
To: 'Jeffrey Ryan'
Cc:'nossi@comcast.net';'jhagan@haganlaw.com'<'ha n h lw. m>,-
Bob Luckinbil|
Subject: RE: Geisier vs. Johnston
Nicole,
A separate requestnot as time sensitive as the issues below
—
could you please send me ———
tomorrow (or ask Jeff to do so if you don’t have easy access) the Second Partners Working
Agreement dated June 27, 2016 referenced in Jeff’s letter? Thank you.
Jimmy
wIErom:Jeffrey Ryan [mailto:jeff@jeffreymanlaw.com]
Sent: Wednesday, December 06, 2017 4:07 PM
To: Jimmy Jacobs
Cc: nossi@comcast.net; jhagan@haganlaw.com; Bob Luckinbill
Subject: Re: Geisier vs. Johnston
Nicole: Please answerJimmy’s questions. am in deposition. Thanks. Jeff
I
Sent from my iPhone
On Dec 6, 2017, at 4:03 PM, JimmyJacobs wrote:
Jeff
received today your December 4 letter responding to my meet
i and
confer letter regarding Mr. Johnston’s responses to Dr. Geisler’s form
interrogatories. am trying to process things as efficiently as possible. There
I
are a couple of open items/items that need clarification based on your letter. i
would appreciate if you could respond this afternoon/evening given the
deadlines in front of us (unless you wish to move he hearing date on the
motion to compel re: form interrogatories). Please feel free to pick up the
phone and call if you think that will be the most efficient next step.
Below is my understanding of where things stand, as well as my
questions/requests for confirmation (or clarification).
15.1: You have WITHDRAWN 15.1 from your motion.
50.1-50.6: Mr. Johnston will conform the list of ”agreements” to the
ones you identified via bullet point on pages 8 and 9 of the December 4 letter.
We will include the additional agreements identified in the bullet points at
footnote 6, and your understanding in footnote 7 is our understanding — those
are the ”side agreements” that Mr. Johnston will address in his further
response. The December 4 letter does not reference any agreement with Katie
Sims/Magnolia Group. So, that agreement is no longer on the list.
To' summarize, Mr. Johnston will provide the further responses to 50.1—
506 now that the agreements (which will be the subject of those responses)
have been clarified/identified through the meet and confer process. Mr.
Johnston will provide those further substantive responses without objections
and will do so promptly. i can confirm that we can provide the further
responses to you before December 14 and you have my good faith
representation that we will try (and believe we will succeed) in getting those
I
further responses to you by December 11, if not earlier. The only caveat is with
respect to the new agreements that were identified in your December 4 letter
which i received today. There is now stuff in there and still have to speak to
I
my client about those; he is on a plane. Thus, do not know the scope of
I
time/effort associated with responding to those interrogatories as to those
additional agreements. lam hopeful that those new items will also be
addressed by December 11 (and if not by December 11, then later that week).
i don’t want the new items to slow down our delivery of the interrogatory
responses as to the other agreements, for which we are committed to the
dates noted above. (l note that you represented to me in an email that you
had mailed your December 4 letter to me on December 4; immediately asked
1
you to email it so there would not be a several day delay in receiving it, and you
did not do so. Had you done so, it would have enabled us to address these new
items more quickly. i cannot control this delay).
Based upon the fore oin , I am askin you to confirm the followin
a reement: The motion for further responses m sanctions is being
withdrawn as to 50.1—50.6 ajihisjime. Providing the substantive responses
will moot the motion. We appear, think (and based upon the letter i received
I
today from you and this email in response) to have successfully addressed the
substantive issues regarding what should be included in 50.1—50.6 via the meet
and confer process. Moreover, if you determine that the responses are
inadequate or not Code-compliant; the appropriate next step is to meet and
confer on those substantive responses and for you to file a new motion if the
meet and confer does not resolve any perceived deficiencies. The adequacy of
any responses that you receive after having filed the motion cannot be
addressed by the Court at this time as both sides will need to brief the issues
following a meet and confer. believe that it would be an inappropriate waste
I
of the Court’s time and resources (among other things) to fail to withdraw the
motion in its entirety as to 50.1-50.6 at this time. Moreover, failure to agree to
do so requires that we file our substantive opposition and sanctions request on
those points.
Accordingly, please provide definitive agreement (or definitive
disagreement) today on these points — withdrawal of motion as to 50.1-50.6 at
this time (both as to further responses and sanctions) — so know what still
I
needs to be included in my opposition papers being filed this week. lfl don’t
have unambiguous clarity on this point tonight; my understanding will be that
the motion as to 50.1-50.6 is not withdrawn in its entirety, i.e., is not being
withdrawn both as to further responses and sanctions, and will file Mr.
Johnston’s opposition and request for sanctions as to these items.
12.2, 12. and 12.6: With respect to 12.2, 12.3 and 12.6, believe
I I
understand your position and believe that we do not yet have an agreement on
how to define the term lNClDENT in a manner that is not objectionable. do I
not have any rational way to narrow the definition in a way that think will be
I
acceptable to you because do not know which of the numerous events over
I
the 9 years involving multiple parties is most important to you or of most
interest to you for purposes of these interrogatories. It’s your ”INCIDENT” to
define, sol invite you to propose something other than all of the allegations
defined in the First Amended Verified Complaint (or the Second Amended
Verified Complaint). So, that item is still in dispute barring an agreement, and I
understand that the motion will proceed as to it barring any agreement we
reach.
i would, however, like to respond to the second issue involved in 12.2,
12.3 and 12.6, as i think we should be able to resolve that. Setting aside for
these purposes our disagreements on what the law provides, at the bottom of
page 5 of your letter, you added an additional proposed condition on any
response provided by Mr. Johnston, which I’ve highlighted in yellow: ”and (2)
unless Mr. Johnston believes in good faith that the work product privilege
applies (and makes the requisite preliminary or foundational showing that
answering the interrogatory/interrogatories would reveal the attorney’s tactics,
impressions, or evaluation of the case, or would result in opposing counsel
taking the undue advantage of the attorney’s industry or efforts)” agree I
that, ultimately, the burden is on Mr. Johnston to demonstrate this. i agree, at
a minimum, that some information would need to be provided, such as in the
Preview
JEFFREY F. RYAN (State Bar No. 129079) B F E E4 ECOUNTY V LAW OFFICES OF JEFFREY F. RYAN SAN MATEO The Fitzpatrick Building , DEC 1 4 2017 2000 Broadway Street Redwood City, California 94063-1802 Phone: (650) 922-2341 Email: jeff@jeffreyryanlaw.com Attorneys for Plaintiffs, 17—CIV—02888 FRED H. GEISLER, NORMAN C. FLEMING, and GENA ZISCHKE ms Declaration in Support SUPERIOR COURT OF THE STATE OF CALIFORNIA “inn ||||||||||||l llllllllll COUNTY OF SAN MATEO ‘- BY FAX 10 CIVIL DIVISION — SOUTHERN BRANCH 11 FRED H. GEISLER, M.D., Ph.D., an Case No.: 17CIV02888 individual, NORMAN C. FLEMING, an 12 ififliziifizl: Ziéc‘i’fififiéfifiifignm behalf EgggPARApogTIg;gggfggggggm 13 of RHAUSLER, INC., GEISLER’S REPLY BRIEF IN SUPPORT 14 OF MOTION FOR ORDER COMPELLING FURTHER RESPONSES Pl amt' ff3’ . 15 1 FROM DEFENDANT TERRY 16 v. JOHNSTON RE FORM INTERROGATORIES, SET ONE, 17 TERRY J. JOHNSTON, an individual; KATIE AND REQUEST FOR MONETARY SIMS, CPA, an individual; ROBERT JOHN S ANCTIONS 18 GLYNN, JR., an individual; 3COR MEDICAL, INC., a California Co oration; . . 19 TEDAN SURGICAL INNOVATIrs, LLC Complalnt Wed! June 28, 2017 a Texas Limited Liability Company, & DOES Trial: Not Set 20 1 to 25, Inclusive, 21 Defendants, Initial Hearing Date: December 21, 2017 New Hearing Date: January 23, 2018 22 and RHAUSLER, IN C., a California Time: 9:00 a.m. Corporation, Dept.: Law and Motion 23 24 Nominal Defendant (Reply Brief is filed and served concurrently herewith) 25 26 27 28 RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS GEISLER, E T AL. vs. JOHNSTON, E TAL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. l7CIV02888 1, Jeffrey F. Ryan, declare: 1. I am an attorney at law, licensed to practice in all of the courts in the State of California, and am the lead litigation attorney and counsel of record for Plaintiffs Fred H. Geisler, M.D., Ph.D., Norman C. Fleming, and Gena Zischke (collectively “Plaintiffs”) in this matter. I have personal knowledge of the facts set forth in this declaration except as those matters stated on information and belief and as to those matters, I believe them to be true. If called as a witness, I could and would testify competently to the matters set forth below. I make this declaration. in support of Plaintiff Fred Geisler’s (“Dr. Geisler”) Reply Brief in support of Motion for Order Compelling Further Responses from Defendant Terry Johnston 10 Re Form Interrogatories, Set One, and Request for Monetary Sanctions (the “Motion”). ll 2. Mr. Johnston’s counsel (Mr. Jacobs) never asked for an extension of time to 12 provide further responses to the Form Interrogatories in dispute, and did not provide a 13 substantive response — or'a concrete time frame as to when I may expect a substantive 14 response — to any of my “meet and confer” letters regarding this discovery set by November 15 16, 2017. Accordingly, my office filed the Motion on November 17, 2017. l6 3. Mr.'Jacobs failed to make any attempt to substantively address the discovery in 17 18 dispute until M after I sent my initial 30-page “meet and confer” letter to Mr. Jacobs (on October 31, 2017), which was eleven (11) days after the Motion was filed and ten (10) days 19 before the deadline for filing and service of Mr. Johnston’s opposition papers to the Motion. 20 That is, Mr. Jacobs finally provided a substantive response and began an attempt to “meet and 21 confer” with me on November 28, 2017. See, Exhibit M to Mr. Jacobs’ Declaration in 22 support of Mr. Johnston’s Opposition. 23 4. Mr. Jacobs belatedly provided the details of his other work commitments and 24 deadlines to me — presumably for the purpose of explaining the prolonged delay in providing 25 a response to my “meet and confer” letters in an attempt to avoid the imposition of monetary 26 sanctions against him and Mr. Johnston — for the first time in Mr. Johnston’s opposition 27 papers. See, Memorandum of Points and Authorities in Opposition to the Motion at 423-12, 28 and Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition at 11 9. - 1 _ RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS GEISLER, ET AL. vs. JOHNSTON, ET AL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 5. Mr. Johnston has propounded written discovery to each of the Plaintiffs in this action, and Plaintiffs have a pending Motion for Extension of Time Within. Which to Respond to Defendant Terry Johnston’s Request for Production of Documents and Things, Set One, scheduled for hearing on January 3, 2018 in this Court. 6. Since the filing and service of the Motion on November 17, 2017, my colleague (Nicole Ossi) and I have spent several hours advising Mr. Jacobs as to the reasons why Mr. Johnston’s objection to the defined term “INCIDENT” in connection with Form Interrogatory Nos. 12.2, 12.3, and 12.6 in the context of this lawsuit is inappropriate and lacks merit. (See, Exhibits F and N to Mr. Jacobs’ Declaration in support of Mr. Johnston’s 10 Opposition!) 11 7. On December 4, 2017, I sent a letter to Mr. Jacobs. In that letter, 1 stated the 12 following, in part, with respect to the defined term “INCIDENT” as that term is used in the set . 13 of Form Interrogatories in dispute: 14 The unpublished decision you cite in your letter dated November 28, 2017 (Clark v. Hoag Mem ’1 Hosp. Presbyterian, 2017 Cal. App. Unpub. LEXIS 15 2310 at 17) is not persuasive authority....and the decision has no precedential value in this action. Your reference to the Guide on Form Interrogatories 16 published by the Sacramento County Public Law Library & Civil Self Help Center and Wei] & Brown’s California Practice Guide: Civil Procedure Before 17 Trial (The Rutter Group) are also not persuasive authorities in the context of this lawsuit. 18 ....Dr. Geisler provided guidance on the definition of the term 19 ‘INCIDENT’ to make it applicable to this lawsuit which spans more than nine (9) years and involves multiple parties and multiple causes of action. For 20 purposes of this set of Form Interrogatories, ‘INCIDENT’ was defined as ‘The allegations contained in the First Amended Verified Complaint in this action 21 San Mateo County Superior Court Case No. 17—CIV—02888.’[f°°mete owned] 22 Although the operative pleading is now the Second Amended Verified Complaint (‘Second Amended Complaint’), the First Amended Verified 23 Complaint was the operative pleading at the time the discovery was propounded. We continue to ask Mr. Johnston to provide further responses based on the 24 allegations contained in the Second Amended Complaint.... 25 /// 26 27 1 Exhibits F and N to the Declaration of James L. Jacobs in support of Mr. Johnston’s Opposition to the Motion (my “meet and confer” letter to Mr. Jacobs dated December 4, 2017) are identical. Accordingly, Exhibit N is a 28 duplicate. -2- RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS GEISLER, E T AL. vs. JOHNSTON, ET AL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 Logic andcommon sense dictate that we are not asking, and have never asked, Mr. Johnston to respond to allegations and claims contained in the operative pleading (currently the Second Amended Complaint, previously the First Amended Complaint at the time this discovery set was propounded on Mr. Johnston) which are not made against him or which do not pertain to‘him. [Emphasis added, not in original.] Toward that end, in an attempt to provide you and Mr. Johnston with additional guidance on the defined term ‘INCIDENT’ so that you would be able to provide substantive, meaningful responses to these Interrogatories, we set forth in detail numerous allegations and claims made against Mr. Johnston in the operative pleading. Our endeavor (in the October 31, 2017 ‘meet and confer’ letter and Dr. Geisler’s Rule 3.1345 Statement in support of the Motion) highlights the appropriateness of the defined term as used in this set of Form Interrogatories. We believe that, in the context of this lawsuit, the definition of ‘INCIDENT’ comports with legal requirements and common sense. There is no 10 legitimate basis for narrowing the definition of ‘INCIDENT’ to w of the items ll specified in your letter dated November 28, 2017. 12 While we believe that we have provided you and Mr. Johnston with adequate guidance on the meaning of the term as currently defined, we are l3 certainly amenable to entertaining other proposed definitions of the term ‘INCIDENT’ that you may offer. Mr. Johnston has not provided any 14 substantive responses to Interrogatory Nos. 12.2, 12.3, or 12.6 to date, so he would not be prejudiced by providing further Code-Compliant, verified 15 responses based on the allegations and claims made against him in the Second Amended Complaint. l6 17 See, Exhibit F (duplicated at Exhibit N) to Mr. Jacobs’ Declaration in support of Mr. 18 Johnston’s Opposition. 19 8. Despite my invitation, Mr. Jacobs never offered to define “INCIDENT” or 20 suggested any definition of the term that he and Mr. Johnston determined to be acceptable. 21 9. On December 6, 2017, Mr. Jacobs — fully aware that I was in deposition and 22 unavailable — sent an email to me at 4:03 pm. regarding the Form Interrogatories in dispute 23 and requested a response “this afternoon/evening given the deadlines in front of us”. I asked- 24 my colleague (Ms. Ossi) to respond to Mr. Jacobs’ email because I was in deposition. Ms. 25 Ossi responded at 6:25 pm. on December 6, 2017, and wrote in part the following regarding 26 the defined term “INCIDENT” as that term is used in this set of Form Interrogatories: 27 /// 28 /// - 3- RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS GEISLER, E TAL. vs. JOHNSTON, ETAL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 Form Interrogatory Nos. 12.2, 12.3, and 12.6 — Despite our best efforts, it appears that we have not reached an agreement on the definition of the term ‘INCIDENT’ that is acceptable to you/Mr. Johnston. You are correct that, until and unless we are able to reach an agreement on this defined term, the Motion will proceed on this basis as to these Form Interrogatories. I was one of the recipients of this email sent by Ms. Ossi to Mr. Jacobs dated December 6, 2017.- See, Exhibit G to Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition. 10. The merit of Johnston’s objection to these particular three (3) Form Interrogatories (Interrogatory Nos. 12.2, 12.3, and 12.6) on the basis of the defined term “INCIDENT” is dubious because Johnston provided substantive responses to other 12-series Form Interrogatories which also ask for information pertaining to the “INCIDENT” (e.g., 10 Interrogatory Nos. 12.4 and 12.5). See, Exhibit B to my Declaration in support of the Motion. 11 11. On December 4, 2017, I further addressed Mr. Johnston’s objection to 12 Interrogatory Nos. 12.2, 12.3, and 12.6 “to the extent” they seek information protected by the l3 attomey-client privilege and/or the attorney work product doctrine. In my letter to Mr. Jacobs l4 dated December 4, 2017, I stated in part: 15 Form Interrogatory Nos. 12.2, 12.3, and 12.6 do not necessarily seek information protected by. the attomey-client privilege or the attorney work 16 product doctrine. If°°m°te °mm°d1 Mr. Johnston my be able to properly respond to these Interrogatories, without disclosing information protected from disclosure 17 by any privilege. Dr. Geisler does not contend that the information responsive . to these Interrogatories cannot — under any circumstances — be protected by the 18 attorney-client privilege or the attorney work product doctrine. Dr. Geisler’s position is that Mr. Johnston’s boilerplate privilege objections — without more — 19 lack merit. To the extent that Mr. Johnston is able to properly respond to these Interrogatories without disclosing information protected from disclosure by the 20 attomey—client privilege or the attorney work product doctrine, he has an affirmative duty to do so. (Code Civ. Proc. §2030.220(a).) 21 22 The authority cited in your letter dated November 2[8], 2017 (Cairo v. Superior Court (2012) 54 Cal.4th 480) supports Dr. Geisler’s position. In Coito, 23 the California Supreme Court stated in relevant part: 24 Because it is not evident that form interrogatory No. 12.3 implicates the policies underlying the work product privilege in all or even most cases, we 25 hold that information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work 26 product privilege. Instead, the interrogatory usually must be answered. However, an objecting party may be entitled to protection if it can make a 27 preliminary or foundational showingr that answering the interrogatory would reveal the attomey’s tactics, impressions, or evaluation of the case, or would 28 result in opposing counsel taking undue advantage of the attorney's industry or -4- RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS GEISLER, E TAL. vs. JOHNSTON, E TAL."—‘ SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 efforts. Upon such a showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the material in dispute. [Emphasis added, not in original.] (Coito, supra, 54 Cal.4th 480 at 502.) ‘[A] responding party may object to an interrogatory that seeks privileged information by clearly stating the objection and the particular privilege invoked. But the existence of a document containing privileged information is not privileged. [Citations.] Interrogatories may be used to discover the existence of documents in the other party's possession. [Citation] If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document. [Citation.]’ (Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1190, citing Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293.) ‘A ‘party has ‘no right to refuse to identify documents in response to interrogatories,’even if [it] may properly refuse to produce them later, based 10 upon a claim of privilege. [Citation.]’ (Hernandez v. Superior Court, supra, 112 Cal.App.4th at p. 294.)’ (Best Products, Inc., supra, 119 Cal.App.4th 1181 at ll 1190) 12 See, Exhibit F (duplicated at Exhibit N) to Mr. Jacobs’ Declaration in support of Mr. 13 Johnston’s Opposition. 14 12. Two days later, on December 6, 2017, my colleague (Ms. Ossi) responded to 15 Mr. Jacobs’ request for additional “clarification” with respect to Dr. Geisler’s position 16 regarding the objections made by Mr. Johnston to Form Interrogatory Nos. 12.2, 12.3, and 17 12.6 on the grounds of attomey-clients privilege and the attorney work product doctrine. Ms. 18 Ossi wrote in relevant part: 19 ........................................................................................ 20 ....We do not wish to belabor this point, but believe that Mr. Johnston should be able to make the preliminary or foundational showing (e.g., in the 21 form of a privilege log or other written information) which would not require disclosure of privileged information or attorney work product or an in camera 22 review. If Mr. Johnston is able to make the requisite showing, the Court would then determine (by making an in camera inspection, if necessary) whether 23 absolute or qualified work production protection applies to the material in dispute. Again, the discovery in dispute is Form Interrogatories. Dr. Geisler is 24 asking Mr. Johnston to provide certain information and identify — not produce — certain documents responsive to Form Interrogatories 12.2, 12.3, and 12.6. 25 26 I was one of the recipients of this email sent by Ms. Ossi to Mr. Jacobs dated December 6, 27 2017. See, Exhibit G to Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition. 28 /// _ 5- RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS GEISLER, E TAL. vs. JOHNSTON, ET AL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17 CIV02888 13. Mr. Jacobs’ final comments regarding Mr. Johnston’s objection to Form Interrogatory Nos. 12.2, 12.3,, and 12.6 on the grounds of attorney-client privilege and the attorney work product doctrine include a concession that the parties may actually be in agreement and that, if there is ever a disagreement between the parties as to whether the preliminary or foundational showing was met, the‘ issue would “make its way to a Judge to decide.” See, Exhibit G to Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition. 14. After Ms. Ossi and I engaged in extensive “meet and confer” efforts with Mr. Jacobs regarding the “agreements alleged in the pleadings” which are the subject of the 50- series Form Interrogatories, Mr. Jacobs agreed that Mr. Johnston would provide further 10 verified responses to Interrogatory Nos. 50.1-50.6 without objections. See, Exhibit C to my ll Declaration in support of the Motion; see also, Exhibits F (duplicated at Exhibit N), G, and M 12 to Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition. 13 15. On December 11, 2017, Mr. Jacobs’ office served — on behalf of Mr. Johnston 14 — further verified responses to Form Interrogatory Nos. 50.1—50.6. Accordingly, Dr. Geisler 15 has withdrawn his request for further responses to Form Interrogatory Nos. 50.1-50.6 from 16 this Motion. 17 16. However. Dr. Geisler’s Motion continues to include a request for monetary 18 sanctions against Mr. Johnston and his counsel (Mr. Jacobs) in connection with Form 19 Interrogatory Nos. 50.1-50.6 because Dr. Geisler, Ms. Ossi, and I “should not have been 20 forced to spend this much time and [Dr. Geisler’s] money to get [Mr. Jacobs] and [his] client 21 to meet their obligations under the discovery act.” Ms. Ossi and I should not have been 22 forced to identify the “agreements alleged in the pleadings,” or to provide Mr. Jacobs with 23 copies of the “Rhausler, Inc. Partners Working Agreement” and “Second Partners Working 24 Agreement” he and/or Mr. Johnston already had copies of, in order for Mr. Johnston and his 25 counsel (Mr. Jacobs) to provide substantive further responses to these Form Interrogatories, 26 and we should not have been forced to spend numerous hours “meeting and conferring” with 27 Mr. Jacobs regarding these straightforward Form Interrogatories. See, Exhibits C and E to my 28 Declaration in support of the Motion; see also, Exhibits F (duplicated at Exhibit N) and G to _ 6 _ RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS GEISLER, ET AL. vs. JOHNSTON, ET AL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. l7CIV02888 - Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition; see also, Exhibit B to this Reply Declaration in support of the Motion. 17. On December 4, 2017 — as part of my ongoing commitment to “meet and confer” with Mr. Jacobs in an attempt to productively work through the issues in dispute and resolve this matter informally — 1 addressed Mr. Johnston’s objection to Form Interrogatory No. 15.1 made for the first time in Mr. Jacobs’ letter dated November 28, 2017 on the basis that Mr. Johnston had not filed any responsive pleading in the case. I explained to Mr. Jacobs that I was “under the impression that Mr. Johnston would have filed a responsive pleading in this case by now,” but “due to recent developments in the procedural posture of this case,” 10 Mr. Johnston had not filed (and was not obligated to file) a responsive pleading in the case 11 until February 2018. l acknowledged that, under these circumstances, this Interrogatory was 12 premature. See, Exhibit F (duplicated at Exhibit N) to Mr. Jacobs’ Declaration in support of 13 Johnston’s Opposition. 14 18. Accordingly. Dr. Geisler has withdrawn (without prejudice) his request for a 15 fixrther response to Form Interrogatory No. 15.1 and the accompanying request for monetarv 16 sanctions associated with 15.] (only) from this Motion. 17 19. Since the filing and service of the Motion on November 17, 2017, I have sent 18 Mr. Jacobs two (2) more “meet and confer” letters. Ms. Ossi and I have spent several more 19 hours “meeting and conferring” and advising Mr. Johnston and Mr. Jacobs by email, as to the 20 reasons why Mr. Johnston’s objections to Form Interrogatory Nos. 12.2, 12.3, 12.6, 50.1. 21 50.2, 50.3, 50.4, 50.5, and 50.6 lack merit without substantial justification, and providing Mr. 22 Jacobs with documents he requested in order to provide further responses to Form 23 Interrogatory Nos. 50.1—50.6. A true and correct copy of my letter to Mr. Jacobs dated 24 November 29, 2017 is attached as Exhibit A to this Declaration. A true and correct copy of 25 the email chain from Ms. Ossi to Mr. Jacobs, attaching a copy of the Second Partners 26 working Agreement dated June 27, 2016, is attached as Exhibit B to this Declaration. I am a 27 recipient of the email attached as Exhibit B. See also, Exhibits F (duplicated at Exhibit N) 28 and G to Mr. Jacobs’ Declaration in support of Mr. Johnston’s Opposition. Under these _ 7- RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS GEISLER, ET AL. vs. JOHNSTON, E TAL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 circumstances, imposition of a monetary sanction against Mr. Johnston and his counsel (Mr. Jacobs) would not be unjust. 20. I do not believe that the “meet and confer” letters I sent to Mr. Jacobs regarding other sets of written discovery not at issue in this Motion are relevant to the pending dispute before the Court and, therefore, I have not addressed the merits of Mr. Johnston’s arguments regarding those matters in this Reply. 21. A substantial amount of Johnston’s Opposition, and Mr. Jacobs’ declaration and accompanying exhibits in support of Mr. Johnston’s Opposition, is duplicative of information and documents already supplied by my office (on behalf of Dr. Geisler) to the 10 Court in the moving papers and/or irrelevant and unnecessary to ruling on the merits of this ll ' Motion. By way of example, Mr. Jacobs’ declaration is 377 pages (including Exhibits A-O). 12 Of those 377 pages, 314 pages are duplicates of exhibits attached to my declaration in support l3 of the Motion, irrelevant to ruling on this Motion, or duplicates of exhibits attached to Mr. 14 Jacobs’ declaration in support of Mr. Johnston’s Opposition. Specifically, Exhibits A-D and 15 J-K to Mr. Jacobs’ declaration (84 pages including the exhibit tabs) are duplicates of Exhibits l6 A-F to my declaration in support of the Motion. Exhibit E to Mr. Jacobs’ declaration (9 pages 17 including exhibit tab) is not persuasive authority, and Mr. Jacobs appears to be aware of that 18 fact because he does not ask the Court to take judicial notice of that “self-help” online 19 resource. Exhibits F and N to Mr. Jacobs’ declaration (each 28 pages including the exhibit 20 tab) are identical, so Exhibit N is an exact duplicate of Exhibit F. Exhibits H and I to Mr. 21 Jacobs’ declaration (193 pages including the exhibit tabs) are “meet and confer” letters that I 22 sent to Mr. Jacobs in connection with other discovery disputes that are not the subject of this 23 Motion and, therefore, are irrelevant to any of the issues pending before the Court in this 24 Motion. I 25 22. Contrary to Mr. Jacobs’ representation that I did not respond to Mr. Jacobs’i 26 letter dated November 28, 2017 until December 4, 2017, I responded to that correspondence 27 on November 29 and December 4, 2017. See, Exhibit A to this Declaration; see also, Exhibit 28 F (duplicated at Exhibit N) to Mr. Jacobs’ Declaration in support of Mr. Johnston’s .. 8- RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLIN G FURTHER RESPONSES FROM TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS GEISLER, E TAL. vs. JOHNSTON, E TAL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. l7CIV 02888 Opposition. 23. Dr. Geisler and I properly used the discovery process, persistently engaged in good faith in “meet and confer” efforts to resolve this matter informally without the necessity of Court intervention before fl after the Motion was filed and served, and acted with substantial justification at all times. None of the Interrogatories in dispute was propounded to cause annoyance, embarrassment, oppression, undue burden, or expense. The Motion was not filed prematurely. I do not believe that there is any reasonable basis to award Mr. Johnston monetary sanctions against Dr. Geisler or me. 10 I declare under penalty of perjury under the laws of the State of California that the 11 foregoing is true and correct. This declaration was executed on December 14, 2017 in 12 Redwood City, California. 13 14 [,v , v. f,» , , ) 15 7 it MN] I, I 5‘; . , )1,“ l ,9 at.» l i “1155671531“ ‘ FREY Rig/{131v 16 17 18 19 20 21 22 23 24 25 26 27 28 _-9_ RYAN DECL. ISO GEISLER’S REPLY BRIEF ISO MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM TERRY JOHNSTON RE FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS GEISLER, ET AL. vs. JOHNSTON, E TAL. — SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 EXHIBIT A LAW OFFICES OF JEFFREY F. RYAN AN ASSOCIATION OF ATTORNEYS THE F lTZPATRlCK BUILDING 2000 BROADWAY STREET REDWOOD CITY, CA 94063-1802 (650) 922-2341 www.jeffreyryanlaw.com JEFFREY F. RYAN jeff@jeffreyryanlaw.com November 29, 2017 Via Email and U.‘S. Mail James L. Jacobs, Esq. GCA LAW PARTNERS LLP 2570 W. El Camino Real, Suite 400 Mountain View, CA 94040 Email: jjacobsgcbgealaweom Re: Fred H. Geisler, MD, Ph.D. et al. vs. Terry Johnston, et at. San Mateo County Superior Court Case No. 17CIV02888 Response to Your November 28, 2017 Letter Re Defendant Terry Johnston’s Response to Fred Geisle‘r’s Form Interrogatories, Set One Dear Mr. Jacobs: I write to confirm receipt of your letter dated November 28, 2017, written in response to my “meet and confer” letters dated October 31, November ‘ 3, and November 13,2017 regarding Defendant Terry Johnston’s Response to Fred Geisler’s Form Interrogatories, Set One. write to inform you that, although I remain I also interested in productively working through the concerning Mr. JohnstOn’s “response” to issues Interrogatory Nos. 12.2; 12.3, 12.6, 15.1, and 50.1- 50.6,1 I am not able to substantively respond to your letter in the abbreviated time fran‘ae requested (i.e., 5 pm. today, less than 37 that you hours after you sent the unsigned version of and less than 30 hours after you sent the the letter signed version of your November 28, 2017). ' Dr. Geisler is no longer seeking a further response to Form Interrogatory No. 12.7, as Geisler’s pending Motion for Order stated in Plaintiff Fred Compelling Further Responses from Defendant Inte‘rrogatoriesa Set One, and Request for Terry Johnston Re Form Monetary Sanctions (the “Motion” or “Dr. Geisler’s Motion”). James L. Jacobs, Esq. November 29, 2017 Page 2 I intend to provide a substantive response to your letter at my earliest opportunity. Due to deadlines in some of my‘other cases and other work commitments, I am hoping to respond by early next week. That time frame should allow you adequate time to prepare Mr. Johnston’s opposition to Dr. Geisler’s Motion, if we are not able to productively work through all the issues and resolve this discovery dispute informally. At this time, I am not prepared to withdraw the Motion. I assure you that my inability to accommodate your abbreviated time frame to respond to the substance of your letter is not a delay tactic, but simply a facet of running a busy litigation practice. Very truly yours, LAW OFFICES OF JEFFREY F. RYAN sso iation of Attorneys JE REY F. RYA FW JFR/nmo EXHIBIT B From: Nicole Ossi To: "Jimmy Jacobs" Cc: jhagan@haganlaw.com; "Bob Luckinbill“; "Jeffrey Ryan" Subject: RE: Geisler vs. Johnston Second Partners Working Agreement Date: Thursday, December 07, 2017 9:34:21 AM Attachments: Partners Working Agreement 2.6-27-2016.gdf Jimmy, Pursuant to your (and Jeff’s) request, attach I a copy of the Second Partners Working Agreement dated June 27, 2016. Nicole Nicole M. Ossi, Esq. Ossi Law Group 365 Lassenpark Circle 95136-2158 San Jose, California Mobile: (408) 316-0088 This email may contain CONFlDEN'l‘lAL INFORMA’l'ION and may be subject to the attorney-chem privilege. it is intended only for the use of the intended recipientts). lfyou are not an intended recipient of this communication. please be aware that any review. L56, dissemination. distribution, domtloading. or copying of this communication is unauthorized and prohibited. In addition. if you have received this communication in error, please immediately notify us by reply email. delete the communication and destroy all copies. Thank you. From: Nicole Ossi [mailto:nossi@comcast.net] Sent: Wednesday, December 06, 2017 8:59' PM To: 'JimmyJacobs' Cc: jhagan@haganlaw.com; 'Bob Luckinbill' ; 'Jeffrey Ryan' ' ~ Subject: RE: Geisler vs. Johnston Jimmy, ldefer to Jeff to respond to your request for a copy of the Second Partners Working Agreement dated June 27, 2016. Nicole Nicole M. Ossi, Esq. Ossi Law Group 365 Lassenpark Circle San Jose, California 95136-2158 Mobile: (408) 316-0088 This email may contain CONFlDENTlAL lNFORVATlON and may be subject to the attorney-client privilege. it is intended only for the use oftlie intended recipicnt(s). lfyou are not an intended recipient ofthis communication. please be aware that any review. use, dissemination, distribution. doxmloading. or copying of this communication is unauthorized and prohibited. in addition, ifyou have received this communication in error. please ' \ irnmeciiatety notify us by reply email, delete the communication and destroy ali copies. Thank you. From: JimmyJacobs [mailtgllaggbs@gcalaw.com] Sent: Wednesday, December 06, 2017 4:13 PM To: 'Jeffrey Ryan' Cc:'nossi@comcast.net';'jhagan@haganlaw.com'<'ha n h lw. m>,- Bob Luckinbil| Subject: RE: Geisier vs. Johnston Nicole, A separate requestnot as time sensitive as the issues below — could you please send me ——— tomorrow (or ask Jeff to do so if you don’t have easy access) the Second Partners Working Agreement dated June 27, 2016 referenced in Jeff’s letter? Thank you. Jimmy wIErom:Jeffrey Ryan [mailto:jeff@jeffreymanlaw.com] Sent: Wednesday, December 06, 2017 4:07 PM To: Jimmy Jacobs Cc: nossi@comcast.net; jhagan@haganlaw.com; Bob Luckinbill Subject: Re: Geisier vs. Johnston Nicole: Please answerJimmy’s questions. am in deposition. Thanks. Jeff I Sent from my iPhone On Dec 6, 2017, at 4:03 PM, JimmyJacobs wrote: Jeff received today your December 4 letter responding to my meet i and confer letter regarding Mr. Johnston’s responses to Dr. Geisler’s form interrogatories. am trying to process things as efficiently as possible. There I are a couple of open items/items that need clarification based on your letter. i would appreciate if you could respond this afternoon/evening given the deadlines in front of us (unless you wish to move he hearing date on the motion to compel re: form interrogatories). Please feel free to pick up the phone and call if you think that will be the most efficient next step. Below is my understanding of where things stand, as well as my questions/requests for confirmation (or clarification). 15.1: You have WITHDRAWN 15.1 from your motion. 50.1-50.6: Mr. Johnston will conform the list of ”agreements” to the ones you identified via bullet point on pages 8 and 9 of the December 4 letter. We will include the additional agreements identified in the bullet points at footnote 6, and your understanding in footnote 7 is our understanding — those are the ”side agreements” that Mr. Johnston will address in his further response. The December 4 letter does not reference any agreement with Katie Sims/Magnolia Group. So, that agreement is no longer on the list. To' summarize, Mr. Johnston will provide the further responses to 50.1— 506 now that the agreements (which will be the subject of those responses) have been clarified/identified through the meet and confer process. Mr. Johnston will provide those further substantive responses without objections and will do so promptly. i can confirm that we can provide the further responses to you before December 14 and you have my good faith representation that we will try (and believe we will succeed) in getting those I further responses to you by December 11, if not earlier. The only caveat is with respect to the new agreements that were identified in your December 4 letter which i received today. There is now stuff in there and still have to speak to I my client about those; he is on a plane. Thus, do not know the scope of I time/effort associated with responding to those interrogatories as to those additional agreements. lam hopeful that those new items will also be addressed by December 11 (and if not by December 11, then later that week). i don’t want the new items to slow down our delivery of the interrogatory responses as to the other agreements, for which we are committed to the dates noted above. (l note that you represented to me in an email that you had mailed your December 4 letter to me on December 4; immediately asked 1 you to email it so there would not be a several day delay in receiving it, and you did not do so. Had you done so, it would have enabled us to address these new items more quickly. i cannot control this delay). Based upon the fore oin , I am askin you to confirm the followin a reement: The motion for further responses m sanctions is being withdrawn as to 50.1—50.6 ajihisjime. Providing the substantive responses will moot the motion. We appear, think (and based upon the letter i received I today from you and this email in response) to have successfully addressed the substantive issues regarding what should be included in 50.1—50.6 via the meet and confer process. Moreover, if you determine that the responses are inadequate or not Code-compliant; the appropriate next step is to meet and confer on those substantive responses and for you to file a new motion if the meet and confer does not resolve any perceived deficiencies. The adequacy of any responses that you receive after having filed the motion cannot be addressed by the Court at this time as both sides will need to brief the issues following a meet and confer. believe that it would be an inappropriate waste I of the Court’s time and resources (among other things) to fail to withdraw the motion in its entirety as to 50.1-50.6 at this time. Moreover, failure to agree to do so requires that we file our substantive opposition and sanctions request on those points. Accordingly, please provide definitive agreement (or definitive disagreement) today on these points — withdrawal of motion as to 50.1-50.6 at this time (both as to further responses and sanctions) — so know what still I needs to be included in my opposition papers being filed this week. lfl don’t have unambiguous clarity on this point tonight; my understanding will be that the motion as to 50.1-50.6 is not withdrawn in its entirety, i.e., is not being withdrawn both as to further responses and sanctions, and will file Mr. Johnston’s opposition and request for sanctions as to these items. 12.2, 12. and 12.6: With respect to 12.2, 12.3 and 12.6, believe I I understand your position and believe that we do not yet have an agreement on how to define the term lNClDENT in a manner that is not objectionable. do I not have any rational way to narrow the definition in a way that think will be I acceptable to you because do not know which of the numerous events over I the 9 years involving multiple parties is most important to you or of most interest to you for purposes of these interrogatories. It’s your ”INCIDENT” to define, sol invite you to propose something other than all of the allegations defined in the First Amended Verified Complaint (or the Second Amended Verified Complaint). So, that item is still in dispute barring an agreement, and I understand that the motion will proceed as to it barring any agreement we reach. i would, however, like to respond to the second issue involved in 12.2, 12.3 and 12.6, as i think we should be able to resolve that. Setting aside for these purposes our disagreements on what the law provides, at the bottom of page 5 of your letter, you added an additional proposed condition on any response provided by Mr. Johnston, which I’ve highlighted in yellow: ”and (2) unless Mr. Johnston believes in good faith that the work product privilege applies (and makes the requisite preliminary or foundational showing that answering the interrogatory/interrogatories would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking the undue advantage of the attorney’s industry or efforts)” agree I that, ultimately, the burden is on Mr. Johnston to demonstrate this. i agree, at a minimum, that some information would need to be provided, such as in the