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OR.3INAL
JEFFREY F. RYAN (CA Bar No. 129079)
Jeff@jeffreyryanlaw.com
LAW OFFICES OF JEFFREY F. RYAN F E E; E D
The Fitzgerald Building SAN MATEO COUNTY
2000 Broadway Street
Redwood City, California 94063 FEB 0 9. 2018
Phone: (650) 924-8343
JENNIFER J. 1HAGAN (CA Bar No. 157127)
Jhagan
THE
agan aw.com
LAW FIRM
HCi‘gAGAN
535 Middlefield Road, Suite 190
By M
/y
Cler
E
,
fth Superior Com
CLERK
Menlo Park, CA 94025
Phone: (650) 322—8498
Attorneys for Plaintiffs,
FRED H. GEISLER, NORMAN C. FLEMING, and GENA ZISCHKE
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF SAN MATEO
12 CIVIL DIVISION—SOUTHERN BRANCH
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FRED GEISLER, M.D., Ph.D.,an individual, Case No. 17 CIV 02888 A8
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NORMAN C. FLEMING, an individual,
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and GENA ZISCHKE, an individual, XV:|
directly, and derivatively on behalf of DECLARATION OF JENNIFER
16 RHAUSLER, INC., and ROES 1 to 25, HAGAN ISO PLAINTIFFS’
Inclusive, REPLY TO TERRY JOHNSTON’S
17 OPPOSITION TO GEISLER’S
V. MOTION FOR ORDER
18 COMPELLIN G FURTHER
TERRY J. JOHNSTON, an individual; KATIE RESPONSES RE: SPECIAL
19 SIMS, CPA, an individual; ROBERT JOHN vvvvvvvvvvvvvvvvvvvvv
INTERROGATORIES, SET ONE,
GLYNN, JR., an individual; 3COR MEDICAL, AND REQUEST FOR MONETARY
20 INC., a California Corporation; TEDAN SAN CTIONS
SURGICAL INNOVATIONS, LLC, a Texas
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21 Limited Liability Company, & DOES 1 to 25, Hearing Date: February 16, 2018
Inclusive, Time: 9:00 am.
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Defendants, Dept: Law & Motion
Judge: Hon. Richard Dubois
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and RHAUSLER, INC., a California
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Corporation, Action Filed: June 28, 2017
FAC Filed: Sept. 1, 2017
25 Nominal Defendant. \J Trial Date: None Set
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17— eivLuzass
27 DEGL
Declaration
973012
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Pagel ili
DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY ‘I'U'TJOHNSTONS OPPOSITION TO
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MOTION FOR ORDER COMPELLING FURTHER RESPONSES To SP1 — SET ONE AND REQUEST FOR SANCTIONS
SAN MATEO COUNTY SUPERIOR COURT CASE NO. l7CIV02888 i
I, Jennifer Hagan, declare:
1. I am an attorney at law, licensed to practice in all of the courts in the State of
California, and am an attorney representing Plaintiffs, Fred Geisler, Norman Fleming and Gena
Zischke (hereinafter “Plaintiffs”) in this matter. I have personal knowledge of the facts set forth
in this declaration and, 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 Reply to Terry
Johnston’s Opposition to Geisler’s Motion for Order Compelling Further Responses to Re:
Special Interrogatories, Set One and Request for Monetary Sanctions (the “Motion”) as follows:
2. On Monday, February 5, 2018, I received from the GCA law offices and Jimmy
10 Jacobs who represents Terry Johnston in this matter, a large package delivered via Federal
ll Express. It contained the Opposition of Terry Johnston to the Geisler Special Interrogatories —
12 Set One (the “Geisler SP1”), at issue in this Motion, which were originally served on Terry
13 Johnston on September 5, 2017.
14 3. I immediately reviewed the entire package on February 5, 2018, and I could not
15 find submitted to the Court in opposition to the Motion any responsive meet and confer letter by
l6 Mr. Jacobs. Despite the fact that Jeff Ryan served his meet and confer letter on Mr. Jacobs
17 on November 3, 2017, Mr. Jacobs never responded with a meet and confer letter of his own
18 before filing Terry Johnston’s Opposition.
19 4. On Tuesday, February 6, 2018, Jeff and I received from Jimmy Jacobs via email at
20 5:12 p.m., a seven and one-half page (7 1/;>.) written meet and confer letter in response to Jeff
21 Ryan’s 57 page meet and confer letter dated November 3, 2017 (the “Jacobs M&C Letter”). The
22 receipt of the Jacobs M&C Letter came as a surprise because it was delivered to us AFTER the
23 Opposition was filed in this matter and 81 days AFTER Mr. Jacobs first promised it to Jeff Ryan
24 on November 15, 2017. See the 7.5 page Meet and Confer Letter dated February 6, 2018, from
25 Jimmy Jacobs attached to the Decl. of Jeff Ryan ISO Geisler’s Reply as Exhibit “A”.
26 5. The Jacobs M&C Letter stated that (a) “Mr. Johnston agrees to serve further
27 response” to various Geisler SPI identified as Nos. 5, 6, 7—13, 15-18, 24, 27-29, 36, 37, 46, 54
28 and 56.
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DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY TO TJOHNSTONS OPPOSITION TO
MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO SPI — SET ONE AND REQUEST FOR SAN CTIONS
SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
6. The Jacobs M&C Letter did not agree to provide further responses to Geisler SPI
N0. 3 until 14 days after the receipt of a confidentiality order.
7. Despite offering to provide further responses without objections, the Jacobs M&C
Letter internally contradicted itself and stated that it did NOT agree to provide further responses
to Geisler SPI Nos 3, 5, 7-9, 54 and 56 until 14 days after the receipt of a confidentiality order.
8. The Jacobs M&C Letter concluded with a demand to (a) promptly engage in good
faith meet and confer discussions to address Mr. Jacobs’ actual or proposed resolutions for each
of the special interrogatories, and (b) to immediately withdraw (Geisler’s) pending motion to
compel” further responses.
10 9. I responded to the Jacobs M&C Letter on February 6, 2018, by email at 8:31 pm.
ll See the response to the Jacobs M&C Letter from Jennifer Hagan attached here to Exhibit “X-
12 1”. I noted that Mr. Jacobs’ M&C Letter was very tardy in that it was delivered 94 days after
13 Jeff Ryan’s initial meet and confer was sent on November 3, 2017, only 11 days before the
14 hearing on the Motion, and was not included in Terry Johnston’s Opposition.
15 10. On behalf of Jeff Ryan, who approved my response, we declined to withdraw the
16 Motion because the Jacobs M&C Letter admits that many of the Geisler SPI requests for more
17 substantive information were meritorious and warranted. Further, the excessive delay of the
I
18 Jacobs M&C Letter delivered to us only 11 days before the hearing on the Motion was unfair and
19 would prejudice Fred Geisler.
20 11. On Wednesday, February 7, 2018, I received from Mr. Jacobs by email a
21 document entitled “Defendant Terry Johnston’s Further Response to Fred Geisler’s Special
22 Interrogatories, SET ONE NOS 3,5,6,7,8,9,10,11,12,13,24,46,54 and 56.” (the “Johnston Late
23 Responses”). (See Exhibit “B” to the Dec]. of Jeff Ryan ISO Geisler’s Reply to Opposition.) I
24 immediately reviewed the Johnston Late Responses and determined that it ignored and did not
25 provide responses to nine (9) Geisler SPI which were the subject of the current Motion. It failed
26 to respond to Geisler SPI Nos. 15, 16, 17, 18, 27, 28, 29, 36, and 37.
27 12. At 12:31 pm on Wednesday, February 7, 2018, I sent an email letter to Jimmy
28 Jacobs which informed him that upon my review of the Johnston Late Responses, of the total 23
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DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY TO TJOHNSTONS OPPOSITION T0
MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO SPI — SET ONE AND REQUEST FOR SAN CTIONS
SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
Geisler SPI at issue inthe Motion, the Johnston Late Responses only provided substantive further
information to Seven (7) Geisler SPIs No. 3, 10, 11, 12, 13, 24 and'46. See my email response to
the Johnston Late Responses from Jennifer Hagan in February 7, 2018, attached here to Exhibit
“X-‘Z”.
13. The Johnston Late Responses did not provide any further responses to seven (7)
Geisler SPI Nos. 15, 16, 17, 18, 27, 28, 29, 36 and 37, and refused to provide further information
until a confidentiality order was entered to Geisler SP1 Nos. 5, 6, 7, 8, 9, 54 and 56.
14. Out of 23 Geisler SPI at issue, the Johnston Late Responses only provided
substantive information to seven (7) Geisler ‘SPI despite the fact that the Jacobs M&C
10 Letter dated only two days earlier on Febrgarv 5, 2018, promjsed to provide further
ll '
responses without obiection to all of Geisler’sSPI at-issue except for SP1 #3.
12 15. The last minute flurry of activity by Terry Johnston and his lawyer Jimmy Jacobs,
13 and the fact that the Jacobs M&C Letter does not accurately reflect the further responSes that
14 'Terry Johnston actually produced on February 7, 2018, clearly demonstrates why this Motion is
15 necessary. The level of delay, obfuscation and gamesmanship on the part of Mr. Johnston and
16 his attorney is very apparent.
17‘
18 I declare under penalty of perjury under the laws of the State of California that the.
foregoing is true and correct. This declaration was executed on February 9, 201.8, in Palo Alto,
20 California.
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IENNIF RHAGAN
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DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY TO TJOHNSTONS OPPOSITION To
MOTION FOR ORDER COMPELLING FURTHER RESPONSES T0 591— SET ONE AND REQUEST FOR SANCTIONS
SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
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DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY TO TJOHNSTONS OPPOSITION TO
MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO SPI— SET ONE AND REQUEST FOR SANCTIONS
SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
ihagan@haganlaw.com
From: ‘
jhagan@haganlaw.com
Sent: Tuesday, February 6, 2018 8:31 PM
To: 'Jimmy Jacobs'; 'Jeffrey Ryan' .
Subject: Your Meet and Confer Letter Dated February 6, 2018
Hi J immy,
Jeff has forwarded to me the Meet and Confer Letter that you sent to him this evening at 5:12pm.
Please note that the date in the first sentence has a typo.
Jeff sent you his meet and confer letter ,on’Nover‘nber 3, 20.17 — not 2018.
That is when this whole process started.
Please also note that the Motion to Compel Further Responses to Specially Prepared Interrogatories was not
filed until November 29, 2017, which was 26 days later.
You had 26 days to respond to J cf 5 meet and confer letter in a meaningful Code complaint manner and you
failed.
Now — of all surprises! 94 days later, we receive a proper Code compliant meet and confer response from you.
In addition, to be clear, while you were able to file on February 2, 20118, a hulking Opposition to Geisler’s
Motion to Compel Further Responses to SP1 which exceeds over 125 pages and which contains a 15 page
Memorandum, you. were likewise unable to deliver to Jeff a 7 1/2’ page. responsive Meet and Confer Letter on this
matter. To add a bit of irony to the situation, your seriously tardy meet and confer letter actually points the
finger at Dr. Geisler and alleges that he consciously disregarded his obligations to meet and confer in good faith
with Terry Johnston.
By God! It takes a lot of moxie to attempt to smear Dr. Geisler or Jeff that way in the body of letter that is 94
days late, and delivered after-the Opposition papers (not even included with them). I will say this for you
though, Charles Dickens Would have a few choice word for such a laughable tactic.
We believe that Dr. Geisler has met and conferred with you in a meaningful and Code compliant manner. That
fact is reflected in the 57' page meet and confer letter which Jeff sent to you and you admitted receiving on or
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about November 3, 2017. If Terry Johnston had sincerely wished to avoid this, Motion, he could have simply
timely amended his SPI responses as requested, in whole 0r part. However, he did not. Sad.
Now, three months later, he still has made no effort to provide Dr. Geisler with more substantive
responses. Instead, we received fiom youjust this evening a responsive meet and confer letter that must surely
have been posted via a, donkey walking around the Cape of Good Horn. In this day and age of email, where the.
parties in this case have all agreed (except for defendant Tedan) to accept service by e-serve — it took you 94
days to write a 7 1/2 page responsive letter. Seems to me, that does not comport in good faith with the Code on
making a meaningful effort to resolve this situation.
We decline your invitation to withdraw the pending motion. Had we received such a request with a Code
compliant meet and confer letter back in Deeember, 2017, or eVen partial amended responses, we might have
perhaps considered it. But we have received nothing from your client. There has been absolutely no real
demonstration of any kind made by you or Terry Johnston to provide amended responses to the Geisler .SPI-Set
even though you concede in your letter of today’s date that some of our demands for more substantive
information have merit and are warranted-
Given that there are only 11 days until the hearing and Terry Johnston has not amended his Responses once in
the last two months since Jeff filed the Motion to Compel Further Responses on or about November 29, 2017,
we believe that your request lacks a basic level of sincerity. Given the ignoble assertions leveled by you in your
letter of this evening, can you really blame us?
Jennifer
Ienni‘fe‘r Hagan
Hagan Law
535 Middlefield Road, Suite 190
Menlo Park, CA‘9402,’
Office: (650) 322—8498
Mobile: (65o) 533—3111
Hagan Law
This email may contain CONFIDENTIAL INFORMATION and may be subjbct to the attomeytclient privilege. Iris intended only for the use of
the intended recipient(s).If you are not anin'tended recipient, please be aware that any review, use, dissemination, distribution, downloading, or
copying of this cemmunicatiOn is unauthorized and prohibited. In addition, if you have received this communication in error, please immediately
notify us by reply email, delete the communication andxdestroyall copies._ Thank you.
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DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY TO TJOHNSTONS OPPOSITION TO
MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO SPI — SET ONE AND REQUEST FOR SAN CTIONS
SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888
jhagan@haganlaw.com
From: jhagan@haganlaw.com
Sent: Wednesday, February 7, 2018 12:31 PM
To: 'Tina- Ernst':- jeff©jeffreyryanlaw.com'
Cc: 'Jimmy Jacobs',‘ 'Bob Luckinbill'
SP] - Set
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Subject: Geisler Meet and Confer’on Further Responses Provided by Terry Johnston to
One
Jimmy and Bob,
My analysis of Terry’Johnston’s Further Responses to Geisler’s Special. Prepared Intentogatories‘. served today,
February 7, 2018, on us at approximately 10 am are as follows:
l. Our client has brought a motion to compel further responses from, Terry Johnston on 23 SP1. Those SPI
are identified as:
6, 24 and. 36—37 for being evasive and incomplete
3,5, 7—13, ‘l5—18, 27~29, 46, 54, and 56 for making unjustified boilerplate objections that lack.
merit
Of those 23 SP1 — Terry Johnston has today provided further responses to 14 of the 23 SP1 at issue and
ignored 9 SP1.
Thoseléi Further Responses are to SP1 #3, 5,6, 7,8,9,10,l1,12,13;24,46\,54,56
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. Terry Johnston did‘NOT provide fiirther responses to SPI# 155 l6, 17, 185 27,28,29, 36,— 37.
Of the14 Further Responses delivered by Terry JohnstOn today, we find that seven (7) of then; prOvided
substantive good faith information.
These substantive good faith responses by Terry Johnston were foundin SPI# 3,10,11,12,13,2‘4
and 46.
Of the 14 Further Responses delivered by-Terry Johnston today, we find that seven (7) of them: provided
were just more unmeritorious and unjustified boilerplate responses providing no new information and
refusing to provide information until Jeff Ryan filed the Protective Order that you requested.
In otir opinion, those further bad faith boilerplate responses were to SPI#: 5,6,7,8,9,54-,56.
in Your meet and confer letter of yesterday’s. date delivered to us at 5: 12 pm, I note that Mr. Johnston
agreed to provide further responses without objection to SP1 3 6 and 37. However, he did not. So this
appears to be either an oversight or intentional bad faith in attempting to mislead us to withdraw the
motion. We would like an explanation as to this matter;
With respect to the Protective Order, Jeff Ryan delivered to you Over 2 months ago his signature page on
the Protective Order that you requested. It is up to you to file the'Protective Order to protect your
client’s information not up to Jeff. Therefore, your boilerplate further responses and refusal to provide
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information under SPI#: 5,6,7,8,9,54,56 due to the fact that the Protective Order is not yet in place is
just more bad faith delay tactics. You have been in control of when the Protective Order was filed. You
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have that ability to obtain. the Court’s approval of that Order for over two months and youcan‘not blame
Jeff for any delay,
Given that Terry Johnston, has only provided good faith further responses today to seven (7) of the 23 SP1 at
issue under our Motion to Compel (as more fully set forth above), we will continue to prosecute that motion
to compel further responses and seek sanctions against Terry Johnston. for bad faith discovery tactics in this
matter.
Jennifer
Iermifer Hagan
Hagan Law
535Middlefield Road, Suite 190
Menlo Park, CA 94025
Office: (650) 322—8498
Mobile: (650) 5333111
This email may contain CONFIDENTIAL INFORMATION and may be subject to the attorney—client privilege. it is intended only for the use of
the intended recipient(s). If you are not an intended recipient, please be aware that any review, use, dissemination, distribution, downloading, 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: Tina Ernst [mailtozternst@gcalaw.com]
Sent: Wednesday, February 7, 2018 10:25 AM
To: 'jhagan@haganlaw-.com’ ; ‘jeff@jeffreyryanlaw.com‘
Cc: Jimmy Jacobs ; Bob Luckinbill
Subject: Geisler v. Johnston
Counsel:
Enclosed please find further responses of Mr. Johnston to certain special interrogatories.
Regards,
Tina Ernst
Legal Assistant
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' \ OR.3INAL JEFFREY F. RYAN (CA Bar No. 129079) Jeff@jeffreyryanlaw.com LAW OFFICES OF JEFFREY F. RYAN F E E; E D The Fitzgerald Building SAN MATEO COUNTY 2000 Broadway Street Redwood City, California 94063 FEB 0 9. 2018 Phone: (650) 924-8343 JENNIFER J. 1HAGAN (CA Bar No. 157127) Jhagan THE agan aw.com LAW FIRM HCi‘gAGAN 535 Middlefield Road, Suite 190 By M /y Cler E , fth Superior Com CLERK Menlo Park, CA 94025 Phone: (650) 322—8498 Attorneys for Plaintiffs, FRED H. GEISLER, NORMAN C. FLEMING, and GENA ZISCHKE 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SAN MATEO 12 CIVIL DIVISION—SOUTHERN BRANCH 13‘ FRED GEISLER, M.D., Ph.D.,an individual, Case No. 17 CIV 02888 A8 14 NORMAN C. FLEMING, an individual, 15 and GENA ZISCHKE, an individual, XV:| directly, and derivatively on behalf of DECLARATION OF JENNIFER 16 RHAUSLER, INC., and ROES 1 to 25, HAGAN ISO PLAINTIFFS’ Inclusive, REPLY TO TERRY JOHNSTON’S 17 OPPOSITION TO GEISLER’S V. MOTION FOR ORDER 18 COMPELLIN G FURTHER TERRY J. JOHNSTON, an individual; KATIE RESPONSES RE: SPECIAL 19 SIMS, CPA, an individual; ROBERT JOHN vvvvvvvvvvvvvvvvvvvvv INTERROGATORIES, SET ONE, GLYNN, JR., an individual; 3COR MEDICAL, AND REQUEST FOR MONETARY 20 INC., a California Corporation; TEDAN SAN CTIONS SURGICAL INNOVATIONS, LLC, a Texas . 21 Limited Liability Company, & DOES 1 to 25, Hearing Date: February 16, 2018 Inclusive, Time: 9:00 am. 22 Defendants, Dept: Law & Motion Judge: Hon. Richard Dubois 23 and RHAUSLER, INC., a California 24 Corporation, Action Filed: June 28, 2017 FAC Filed: Sept. 1, 2017 25 Nominal Defendant. \J Trial Date: None Set 26 17— eivLuzass 27 DEGL Declaration 973012 28 Pagel ili DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY ‘I'U'TJOHNSTONS OPPOSITION TO iii" ”H ”i MOTION FOR ORDER COMPELLING FURTHER RESPONSES To SP1 — SET ONE AND REQUEST FOR SANCTIONS SAN MATEO COUNTY SUPERIOR COURT CASE NO. l7CIV02888 i I, Jennifer Hagan, declare: 1. I am an attorney at law, licensed to practice in all of the courts in the State of California, and am an attorney representing Plaintiffs, Fred Geisler, Norman Fleming and Gena Zischke (hereinafter “Plaintiffs”) in this matter. I have personal knowledge of the facts set forth in this declaration and, 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 Reply to Terry Johnston’s Opposition to Geisler’s Motion for Order Compelling Further Responses to Re: Special Interrogatories, Set One and Request for Monetary Sanctions (the “Motion”) as follows: 2. On Monday, February 5, 2018, I received from the GCA law offices and Jimmy 10 Jacobs who represents Terry Johnston in this matter, a large package delivered via Federal ll Express. It contained the Opposition of Terry Johnston to the Geisler Special Interrogatories — 12 Set One (the “Geisler SP1”), at issue in this Motion, which were originally served on Terry 13 Johnston on September 5, 2017. 14 3. I immediately reviewed the entire package on February 5, 2018, and I could not 15 find submitted to the Court in opposition to the Motion any responsive meet and confer letter by l6 Mr. Jacobs. Despite the fact that Jeff Ryan served his meet and confer letter on Mr. Jacobs 17 on November 3, 2017, Mr. Jacobs never responded with a meet and confer letter of his own 18 before filing Terry Johnston’s Opposition. 19 4. On Tuesday, February 6, 2018, Jeff and I received from Jimmy Jacobs via email at 20 5:12 p.m., a seven and one-half page (7 1/;>.) written meet and confer letter in response to Jeff 21 Ryan’s 57 page meet and confer letter dated November 3, 2017 (the “Jacobs M&C Letter”). The 22 receipt of the Jacobs M&C Letter came as a surprise because it was delivered to us AFTER the 23 Opposition was filed in this matter and 81 days AFTER Mr. Jacobs first promised it to Jeff Ryan 24 on November 15, 2017. See the 7.5 page Meet and Confer Letter dated February 6, 2018, from 25 Jimmy Jacobs attached to the Decl. of Jeff Ryan ISO Geisler’s Reply as Exhibit “A”. 26 5. The Jacobs M&C Letter stated that (a) “Mr. Johnston agrees to serve further 27 response” to various Geisler SPI identified as Nos. 5, 6, 7—13, 15-18, 24, 27-29, 36, 37, 46, 54 28 and 56. Page 2 DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY TO TJOHNSTONS OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO SPI — SET ONE AND REQUEST FOR SAN CTIONS SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 6. The Jacobs M&C Letter did not agree to provide further responses to Geisler SPI N0. 3 until 14 days after the receipt of a confidentiality order. 7. Despite offering to provide further responses without objections, the Jacobs M&C Letter internally contradicted itself and stated that it did NOT agree to provide further responses to Geisler SPI Nos 3, 5, 7-9, 54 and 56 until 14 days after the receipt of a confidentiality order. 8. The Jacobs M&C Letter concluded with a demand to (a) promptly engage in good faith meet and confer discussions to address Mr. Jacobs’ actual or proposed resolutions for each of the special interrogatories, and (b) to immediately withdraw (Geisler’s) pending motion to compel” further responses. 10 9. I responded to the Jacobs M&C Letter on February 6, 2018, by email at 8:31 pm. ll See the response to the Jacobs M&C Letter from Jennifer Hagan attached here to Exhibit “X- 12 1”. I noted that Mr. Jacobs’ M&C Letter was very tardy in that it was delivered 94 days after 13 Jeff Ryan’s initial meet and confer was sent on November 3, 2017, only 11 days before the 14 hearing on the Motion, and was not included in Terry Johnston’s Opposition. 15 10. On behalf of Jeff Ryan, who approved my response, we declined to withdraw the 16 Motion because the Jacobs M&C Letter admits that many of the Geisler SPI requests for more 17 substantive information were meritorious and warranted. Further, the excessive delay of the I 18 Jacobs M&C Letter delivered to us only 11 days before the hearing on the Motion was unfair and 19 would prejudice Fred Geisler. 20 11. On Wednesday, February 7, 2018, I received from Mr. Jacobs by email a 21 document entitled “Defendant Terry Johnston’s Further Response to Fred Geisler’s Special 22 Interrogatories, SET ONE NOS 3,5,6,7,8,9,10,11,12,13,24,46,54 and 56.” (the “Johnston Late 23 Responses”). (See Exhibit “B” to the Dec]. of Jeff Ryan ISO Geisler’s Reply to Opposition.) I 24 immediately reviewed the Johnston Late Responses and determined that it ignored and did not 25 provide responses to nine (9) Geisler SPI which were the subject of the current Motion. It failed 26 to respond to Geisler SPI Nos. 15, 16, 17, 18, 27, 28, 29, 36, and 37. 27 12. At 12:31 pm on Wednesday, February 7, 2018, I sent an email letter to Jimmy 28 Jacobs which informed him that upon my review of the Johnston Late Responses, of the total 23 Page 3 DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY TO TJOHNSTONS OPPOSITION T0 MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO SPI — SET ONE AND REQUEST FOR SAN CTIONS SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 Geisler SPI at issue inthe Motion, the Johnston Late Responses only provided substantive further information to Seven (7) Geisler SPIs No. 3, 10, 11, 12, 13, 24 and'46. See my email response to the Johnston Late Responses from Jennifer Hagan in February 7, 2018, attached here to Exhibit “X-‘Z”. 13. The Johnston Late Responses did not provide any further responses to seven (7) Geisler SPI Nos. 15, 16, 17, 18, 27, 28, 29, 36 and 37, and refused to provide further information until a confidentiality order was entered to Geisler SP1 Nos. 5, 6, 7, 8, 9, 54 and 56. 14. Out of 23 Geisler SPI at issue, the Johnston Late Responses only provided substantive information to seven (7) Geisler ‘SPI despite the fact that the Jacobs M&C 10 Letter dated only two days earlier on Febrgarv 5, 2018, promjsed to provide further ll ' responses without obiection to all of Geisler’sSPI at-issue except for SP1 #3. 12 15. The last minute flurry of activity by Terry Johnston and his lawyer Jimmy Jacobs, 13 and the fact that the Jacobs M&C Letter does not accurately reflect the further responSes that 14 'Terry Johnston actually produced on February 7, 2018, clearly demonstrates why this Motion is 15 necessary. The level of delay, obfuscation and gamesmanship on the part of Mr. Johnston and 16 his attorney is very apparent. 17‘ 18 I declare under penalty of perjury under the laws of the State of California that the. foregoing is true and correct. This declaration was executed on February 9, 201.8, in Palo Alto, 20 California. 21 22 IENNIF RHAGAN 23 24 25 26 27 28 Page 4 ' DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY TO TJOHNSTONS OPPOSITION To MOTION FOR ORDER COMPELLING FURTHER RESPONSES T0 591— SET ONE AND REQUEST FOR SANCTIONS SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 10 11 12 13 14 15 16 17 18 19 20 21 22 EXHIBIT “X-l” 23 24 25 26 27 28 Page 5 DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY TO TJOHNSTONS OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO SPI— SET ONE AND REQUEST FOR SANCTIONS SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 ihagan@haganlaw.com From: ‘ jhagan@haganlaw.com Sent: Tuesday, February 6, 2018 8:31 PM To: 'Jimmy Jacobs'; 'Jeffrey Ryan' . Subject: Your Meet and Confer Letter Dated February 6, 2018 Hi J immy, Jeff has forwarded to me the Meet and Confer Letter that you sent to him this evening at 5:12pm. Please note that the date in the first sentence has a typo. Jeff sent you his meet and confer letter ,on’Nover‘nber 3, 20.17 — not 2018. That is when this whole process started. Please also note that the Motion to Compel Further Responses to Specially Prepared Interrogatories was not filed until November 29, 2017, which was 26 days later. You had 26 days to respond to J cf 5 meet and confer letter in a meaningful Code complaint manner and you failed. Now — of all surprises! 94 days later, we receive a proper Code compliant meet and confer response from you. In addition, to be clear, while you were able to file on February 2, 20118, a hulking Opposition to Geisler’s Motion to Compel Further Responses to SP1 which exceeds over 125 pages and which contains a 15 page Memorandum, you. were likewise unable to deliver to Jeff a 7 1/2’ page. responsive Meet and Confer Letter on this matter. To add a bit of irony to the situation, your seriously tardy meet and confer letter actually points the finger at Dr. Geisler and alleges that he consciously disregarded his obligations to meet and confer in good faith with Terry Johnston. By God! It takes a lot of moxie to attempt to smear Dr. Geisler or Jeff that way in the body of letter that is 94 days late, and delivered after-the Opposition papers (not even included with them). I will say this for you though, Charles Dickens Would have a few choice word for such a laughable tactic. We believe that Dr. Geisler has met and conferred with you in a meaningful and Code compliant manner. That fact is reflected in the 57' page meet and confer letter which Jeff sent to you and you admitted receiving on or — about November 3, 2017. If Terry Johnston had sincerely wished to avoid this, Motion, he could have simply timely amended his SPI responses as requested, in whole 0r part. However, he did not. Sad. Now, three months later, he still has made no effort to provide Dr. Geisler with more substantive responses. Instead, we received fiom youjust this evening a responsive meet and confer letter that must surely have been posted via a, donkey walking around the Cape of Good Horn. In this day and age of email, where the. parties in this case have all agreed (except for defendant Tedan) to accept service by e-serve — it took you 94 days to write a 7 1/2 page responsive letter. Seems to me, that does not comport in good faith with the Code on making a meaningful effort to resolve this situation. We decline your invitation to withdraw the pending motion. Had we received such a request with a Code compliant meet and confer letter back in Deeember, 2017, or eVen partial amended responses, we might have perhaps considered it. But we have received nothing from your client. There has been absolutely no real demonstration of any kind made by you or Terry Johnston to provide amended responses to the Geisler .SPI-Set even though you concede in your letter of today’s date that some of our demands for more substantive information have merit and are warranted- Given that there are only 11 days until the hearing and Terry Johnston has not amended his Responses once in the last two months since Jeff filed the Motion to Compel Further Responses on or about November 29, 2017, we believe that your request lacks a basic level of sincerity. Given the ignoble assertions leveled by you in your letter of this evening, can you really blame us? Jennifer Ienni‘fe‘r Hagan Hagan Law 535 Middlefield Road, Suite 190 Menlo Park, CA‘9402,’ Office: (650) 322—8498 Mobile: (65o) 533—3111 Hagan Law This email may contain CONFIDENTIAL INFORMATION and may be subjbct to the attomeytclient privilege. Iris intended only for the use of the intended recipient(s).If you are not anin'tended recipient, please be aware that any review, use, dissemination, distribution, downloading, or copying of this cemmunicatiOn is unauthorized and prohibited. In addition, if you have received this communication in error, please immediately notify us by reply email, delete the communication andxdestroyall copies._ Thank you. 10 11 12 13 14 15 16 17 18 19 20 21 EXHIBIT “x—2” 22 23 24 25 26 27 28 Page 6 DECLARATION OF JENNIFER HAGAN ISO GEISLER’S REPLY TO TJOHNSTONS OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO SPI — SET ONE AND REQUEST FOR SAN CTIONS SAN MATEO COUNTY SUPERIOR COURT CASE NO. 17CIV02888 jhagan@haganlaw.com From: jhagan@haganlaw.com Sent: Wednesday, February 7, 2018 12:31 PM To: 'Tina- Ernst':- jeff©jeffreyryanlaw.com' Cc: 'Jimmy Jacobs',‘ 'Bob Luckinbill' SP] - Set ' Subject: Geisler Meet and Confer’on Further Responses Provided by Terry Johnston to One Jimmy and Bob, My analysis of Terry’Johnston’s Further Responses to Geisler’s Special. Prepared Intentogatories‘. served today, February 7, 2018, on us at approximately 10 am are as follows: l. Our client has brought a motion to compel further responses from, Terry Johnston on 23 SP1. Those SPI are identified as: 6, 24 and. 36—37 for being evasive and incomplete 3,5, 7—13, ‘l5—18, 27~29, 46, 54, and 56 for making unjustified boilerplate objections that lack. merit Of those 23 SP1 — Terry Johnston has today provided further responses to 14 of the 23 SP1 at issue and ignored 9 SP1. Thoseléi Further Responses are to SP1 #3, 5,6, 7,8,9,10,l1,12,13;24,46\,54,56 U) . Terry Johnston did‘NOT provide fiirther responses to SPI# 155 l6, 17, 185 27,28,29, 36,— 37. Of the14 Further Responses delivered by Terry JohnstOn today, we find that seven (7) of then; prOvided substantive good faith information. These substantive good faith responses by Terry Johnston were foundin SPI# 3,10,11,12,13,2‘4 and 46. Of the 14 Further Responses delivered by-Terry Johnston today, we find that seven (7) of them: provided were just more unmeritorious and unjustified boilerplate responses providing no new information and refusing to provide information until Jeff Ryan filed the Protective Order that you requested. In otir opinion, those further bad faith boilerplate responses were to SPI#: 5,6,7,8,9,54-,56. in Your meet and confer letter of yesterday’s. date delivered to us at 5: 12 pm, I note that Mr. Johnston agreed to provide further responses without objection to SP1 3 6 and 37. However, he did not. So this appears to be either an oversight or intentional bad faith in attempting to mislead us to withdraw the motion. We would like an explanation as to this matter; With respect to the Protective Order, Jeff Ryan delivered to you Over 2 months ago his signature page on the Protective Order that you requested. It is up to you to file the'Protective Order to protect your client’s information not up to Jeff. Therefore, your boilerplate further responses and refusal to provide — information under SPI#: 5,6,7,8,9,54,56 due to the fact that the Protective Order is not yet in place is just more bad faith delay tactics. You have been in control of when the Protective Order was filed. You l have that ability to obtain. the Court’s approval of that Order for over two months and youcan‘not blame Jeff for any delay, Given that Terry Johnston, has only provided good faith further responses today to seven (7) of the 23 SP1 at issue under our Motion to Compel (as more fully set forth above), we will continue to prosecute that motion to compel further responses and seek sanctions against Terry Johnston. for bad faith discovery tactics in this matter. Jennifer Iermifer Hagan Hagan Law 535Middlefield Road, Suite 190 Menlo Park, CA 94025 Office: (650) 322—8498 Mobile: (650) 5333111 This email may contain CONFIDENTIAL INFORMATION and may be subject to the attorney—client privilege. it is intended only for the use of the intended recipient(s). If you are not an intended recipient, please be aware that any review, use, dissemination, distribution, downloading, 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: Tina Ernst [mailtozternst@gcalaw.com] Sent: Wednesday, February 7, 2018 10:25 AM To: 'jhagan@haganlaw-.com’ ; ‘jeff@jeffreyryanlaw.com‘ Cc: Jimmy Jacobs ; Bob Luckinbill Subject: Geisler v. Johnston Counsel: Enclosed please find further responses of Mr. Johnston to certain special interrogatories. Regards, Tina Ernst Legal Assistant