Motion to Compel Discovery in FRED GEISLER, MD vs TERRY JOHNSTON| Trellis.Law

On October 24, 2013 a Party Discovery was filed involving a dispute between Copernicus Dynamics, Lp, Fleming, Norman C., Geisler, Fred, Roes 1-25, Inclusive, Zischke, Gena, Tedan Surgical Innovations, Llc, A Texas Limited Liability Company, and 3Cor, Inc, A California Corporation, 3Cor Medical, Inc., Azucena, Kimberly, Bass, Daniel, Does 1 To 25, Does 2 To 25, Fishman, Daniel, Glynn, Robert John, Jr, Industry Of The Redwoods, Llc, A Nevada Llc, Johnston, Terry, Magnolia Group, Llp, Mier, Rowena, Rhausler, Inc., Rhausler, Inc., A California Corporation, Sims, Katie, Certified Public Acc, Tedan Surgical Innovations, Llc, A Texas Limited Liability Company, for Complex Civil Unlimited in the District Court of San Mateo County.

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JEFFREY F. RYAN (CA Bar No. 129079)
Jeff@jeffreyryanlaw.com
“nan
SAN MATEO COUNTY
LAW OFFICES OF JEFFREY F. RYAN
The Fitzgerald Building
2000 Broadway Street
Redwood City, California 94063
Phone: (650) 924—8343 By
01“”
/'
FEB 0 9 2018

WGLEHK
‘
A

00““

JENNIFER J. HAGAN (CA Bar No. 157127)
Jhagan@haganlaw.com
THE HAGAN LAW FIRM
02888
535 Middleﬁeld Road, Suite 190 11 — cw
—

DECL
Menlo Park, CA 94025 Declaration
Phone: (650) 322-8498 973088

Attorneys for Plaintiffs,
FRED H. GEISLER, NORMAN C. FLEMING, and GENA ZISCHKE /_
\\\\\\\\\1\\\\\\\\\\\\\\\\\\\\\\\\\\__\\
____

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, 3 XV:I
directly, and derivatively on behalf of ) DECLARATION OF JEFFREY F.
16 RHAUSLER, INC., and ROES 1 to 25, ) RYAN IN SUPPORT OF PLAINTIFFS’
Inclusive, ) REPLY TO TERRY J OHNSTON’S
17 ) OPPOSITION TO GEISLER’S
v. ) MOTION FOR ORDER
18 ) COMPELLING FURTHER
TERRY J. JOHNSTON, an individual; KATIE ) RESPONSES RE: SPECIAL
19 SIMS, CPA, an individual; ROBERT JOHN ) INTERROGATORIES, SET ONE, 1
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 )

1
Defendants, ) Dept: Law & Motion
‘

) Judge: Hon. Richard Dubois
23
and RHAUSLER, IN C., a California )
24
Corporation, ) Action Filed: June 28, 2017
,
) FAC Filed: Sept. 1, 2017
25 Nominal Defendant. 1 Trial Date: None Set

Page 1
DECLARATION OF JEFFREY F. RYAN 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
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 for 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. The Geisler Special Interrogatories — Set One (the “Gesiler SPI”), at issue in this

10 Motion, were originally served on Terry Johnston on September 5, 2017.

ll ,3‘ Five Months after I originally served the Geisler SPI , on February 6, 2018, which

12. is only ten (10) calendar days before the hearing on the Motion, I received for the for the ﬁrst
13 time

14 from Mr. J ohston’s lawyer, a formal a meet and confer letter in response to my 57 page meet and

15 confer letter dated November 3, 2017 . (See the 8 page Meet and Confer Letter dated February

16 6, 2018, from Jimmy Jacobs attached hereto as Exhibit “A”.)
17 4. Five Months after I originally served the Geisler SPI , on February 7, 2018, which

18‘ is only nine ( 9) calendar days before the hearing on the Motion, I received for the ﬁrst time from
19- Terry Johnston’s Further Response to Fred Geisler’s SPI, Set One, Nos 3, 5, 6, 7, 8, 9, 10, 11,

20 12, 13, 24, 46, 54,and 5 6 only, (attached hereto as Exhibit “B”.) This set of Further Responses
21 dated February 7, 2018, ignored nine (9) of the Geisler SPI which are the subject of the Motion.
22 5- Five Months after I originally served the Geisler SPI , on February 8, 2018, which

23 is only eight (8) calendar days before the hearing on the Motion, I received Terry Johnston’s

24 Further Response to Fred Geisler’s SPI, Set One, Nos 36 and 37 only, (attached hereto as Exhibit

25 “C”.)
26 6. After I sent my initial meet and confer letter to Mr. Jacobs on November 3, 2017, I
27 waited for a substantive response from him for Twenty-Seven (27) days before ﬁling this Motion

28 on November 30, 2017. During that time, Mr. Jacobs and I were in contact via email, and Mr.

Page 2
DECLARATION OF JEFFREY F. RYAN 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
Jacobs wrote to me November 15, and November 21, 2017, that he would respond to my meet

and confer, but he did not do so until February 6, 2018.
7. On November 3, 2017, I provided a proposed Stipulation and Protective Order to

Mr. Jacobs. I then provided my signature page to that protective order to Mr. Jacobs in mid-

December, 2017. I left it up to Mr. Jacobs to obtain the Court’s approval of the Stipulation &
Protective Order. Instead, Mr. Jacobs took no steps to have the protective order which he

insisted on entered by the court.

8. In the February 6, 2013 Meet and Confer Letter by Mr. Jacobs to me, he states that
that Mr. Johnston agrees to serve further substantive responses to various SPI within 14 days

10 following receipt of the conﬁdentiality order after it is entered by the Court. It seems to me to
11 be an egregious abuse of the discovery statutes to sit on a Stipulation and Protective Order for

12 almost two (2) months and refuse to provide further responses until the order is entered when

13 Mr. Jacobs has been fully in control of that process since the very beginning.
14 9. I formally met and conferred in writing with Mr. Jacobs about the Geisler SP1 on

15 two occasions (November 3, and November 13, 2017) before ﬁling the Motion on November 30,

16 2017. Despite the fact that Mr. Jacobs assured me in two separate emails (on November 15 and

17 21, 2017) that he would respond‘formally to my meet and confer letters, he did not do so until

18 February 6, 2018. That’s is over three (3) months after my initial meet and confer letter was

19 delivered to Mr. Jacobs.

20 .10. The Opposition misrepresents to the Court at page 4, lines 15—18, that I somehow
21 ambushed Mr. Jacobs with ﬁling a motion to compel further responses to form interrogatories “a

22 mere six days before Thanksgiving.” I fail to see how my ﬁling of such a motion prevented Mr.
23 Jacobs from properly meeting and conferring with me in good faith about the Geisler SP1 and

24 caused him to delay a full 94 days before sending me the required meet and confer on February
25 6, 20 l 8.

26 11. Terry Johnston admits in his Opposition at page 13, lines 12-19, that I delivered a
27 total of 220 pages of meet and confer letter to Mr. Jacobs, and thatI offered Mr. Jacobs extensions

28 of time to respond to them.

Page 3
DECLARATION OF JEFFREY F. RYAN 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
12. Terry Johnston admits in his Oppbsition, at page 14, lines Ila-18', that
I
communicated with Mr. Jacobs it good faith on November 16, 20175,; expressing my hope to
Work through the issues productively. After November
16, 2017,- I did not liea‘rifrom Mr; Jacobs
for a, period of tWO weeks so I'was left no choice but to ﬁle the instant Moti‘onto
Compel on
November‘30? 2017,. If
Mr, Jacobs hadattempted to Communicate with me? as’was his duty and
obligation to do so, I would-haveworkcd With'him onithe Geisler SP1
discovery issues. But he.
V

did not.

13. I made multiple geod faith attempts to meet arid confer with Mgr-Jacobs about the
Geisler SP1; Given that Mr. Jacobs: hasjust only served his meet and confer letter
and further“
10 responses on February 6, and 73,201 in order to. avoid the imposition of sanctions,
8, iii-”appears
ll that: Mr Jacobs is. the party who has delay'edz been evasive'and
acted in bad faith in this matter,
12 and he should be Sanctioned fer failing‘to‘ meet'and confer
‘

and for. servingj'what are obviously
13 evasive resnon’ses and frivolous ObjEQtions.

14. ‘14.. Mr. Jacobs asserts that I had \re'sgonsibilityoto ﬁle the: Conﬁdentiality
Agreement
'15-
and that it is my fault that'the he=hasynot been“ able to
provide further responses because the
16 Conﬁdentiality Order has not bee‘nentered, Thisis a ridiculous
assertion. .I provided my
'
17‘ 'si' ature
to Mr. Jacobs and other defense counsel in the case on
December 5 2017.. See the
1‘8 attached email cover letter: and Conﬁdentiality
Agreement attachedlhercto as Exhibit “1). I never
19 agreed to be responsible for. obtaining a‘nl‘order to
protect.Terry' Johnston’s information. It was
20 up to Jimmy Jacobs to obtain the order to proteCt his
client. After December .5 2017... Terry"
‘21 Johnston had no reasonable or good faith reason to oppose
‘
providing further resgonseso
to
22 Geisler on thebasisof confide‘ntiali . a

23‘ I declare under; penalty 'of perjury under. the laws of the State of California that the
foregoing

4/
24 IS true and correct. This declaration was executed on
February 9 2018, in Redwood '

2'5

.27

2.8
City, Califomia.

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. Page 4
DECLARATION OF JEFFREY F.‘ RYAN ISO GEISLERYS
REPLY TO TJOHNSTONS OPPOSITIONT
MOTION FOR ORDER COMFELLING FURTHER
RESPONSES TO SPI— SET ONE AND REQUEST
F OR SANCTIQNS
SAN MATEO COUNTY SUPERIOR COURT
CASE NO, 17C1V02888
10

22
EXHIBIT “A”
23

Page 5
DECLARATION OF JEFFREY F. RYAN 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
LAW WAR-rm Ené 11.13

February 5» 2018‘ wrzwn-m

By Email: and First Class Mail. f
'e

Jeffrey F. Ryan .

Lew Ofﬁces of 'J effrei’rzF- Ryan-
.m‘u

The FitzpattiCkrBuilding:
2000'TB1'0adway Street _

Redwood City}; CA 9.40.63

Re: Fred H. Geisler et a]. v; Tere. Johnston etial‘.
San Mateo. Superior CourttCase N11,.17C1V022888),

Dear-Mr. Ryan,

This letter is ‘intresponse to your meet and Confer letter dated Noi'ler'r‘iber. 3,
2018 on behalf of Plaintiff Fred Geisler regarding Defendant Terry Johnston s
Responses to D1"- Geisle'r. s Special Interrogatories, Set One In particular Dr.
G'ei'sle'r' took eXc‘eption. with M1. Johnston respOnses to the folloWing four (4)
3'

.Speoial Interrogéttoities‘pia; the iQUHds that ,the responses are allegedly evasive,
and/or incomplete (181031124 and 361-37) and to the following nineteen (19)
Special Interrogatories on the. grounds that- the responses “consist entirely of
boilerplate objections the: lack merit Without any ju‘stiﬁeation: Nos. 3- 5, 7-13 15-
18 27-29 46,. 54- and 56 in the interests of efﬁciency and for ease of reading, I
amnotj. going to repeat the, entirety of your .57 page letter here.

..D1: Geisler ﬁled liis Motion To Compel (“Motion?’) With respect to the

items addr‘eSSedT111 this letter; in bons’cious disregard of his obligations to meet and
confer. 1'11 geod faith to seek to resolve these issues befc'ne ﬁling a motion. 1 note
(but will not: belabor) the? point here Dr. Geisle‘r should engage in a meaningful
and Code--eoinpliant meet and confer process now and should withdraW the
portions of his Motion that are rendered (or can be lendered) moot} by engagement
in a proper meet and confer disbus'sion and the solutions noted 01 proposed herein
:0..1 that otherwise can be resolved by a further response to this letter

4;.

“wig:

1
This letter also responds, to your subsequent letters in which yen Sought to modify the November
3 Letter by Substituting the “second Amended Venf ed Complaint” for the “First Amended
Verified Crimplain't” wherever the latter appeared: 1n the November 3 letter.

mm W: EL GAMING REAL SUITE Ago
MQUNTAINIVLEVJ‘,6151940419
TEL 6510142803900
1:51;): 559;14~2S.SE101
www‘gcalggweom
Jeffrey F. Ryan
February 6, 2018
Page 2

MR, JOHNSTON’S INITIAL RESPONSE TO SPECIAL
INTERROGATORY N0. 6 WAS APPROPRIATE AND NOT
INCOMPLETE:

Mr. Johnston has a right to privacy in his ﬁnancial affairs. See, e. g.,
Belaz're— West Landscape, Inc. v. Superior Court (2007) 149 Cal. App. 4th 554,
561—62. Seeking the details of Mr. Johnston’s compensation from Rhausler over a
period of approximately ten years clearly implicates (and violates) those: rights.
Notwithstanding that, and in order to avoid unnecessary disputes, Mr. Johnston’s
prior offer to produce such information for the period commencing in 2008
through the date the lawsuit was ﬁled in 2017 following the entry of a
conﬁdentiality order in this matter was both appropriate and generous. On Mr.
Johnston’s behalf, I signed and returned the proposed conﬁdentiality order to your
ofﬁce more than 2 months ago, on December 4, 2017, which your ofﬁce agreed to
submit to the Court for signature. To date, we have not received a copy of the
conﬁdentiality order approved by the Court and we have no indication that your
ofﬁce has even sought approval from the Court of the proposed conﬁdentiality
order. Until you follow through on what your ofﬁce agreed to do, Mr. Johnston
absolutely cannot provide a substantive response to this interrogatory with seeks
his private ﬁnancial information.

Moreover, the proposed cut-off date for this information of the date of the
lawsuit’s ﬁling was an extremely reasonable proposal to put some boundaries
around an intrusive and overbearing request. Indeed, discovery of information
subject to privacy rights will not be ordered if the information sought is available
from other sources or through less intrusive means (Allen v. Superior Court
(1984) 151 Cal.App.3d 447, 449. Here, there are both other sources and less
intrusive means to obtain all of this compensation information, including for the
period’of time following the date of the ﬁling of the lawsuit. Dr. Geisler already
has Rhausler’s ﬁnancial records. Dr. Geisler is a member of the Board of
Directors. He has access to the ﬁnancial records of Rhausler and has been
provided, when requested, with the Company’s Quiekbooks records. He can
review the materials he has, or to which he has access, and obtain this information
himself, which is a far less intrusive means of obtaining it.

Mr. Johnston previOusly agreed (and reiterates his agreement) to respond
voluntarily to this interrogatory and to provide the requested information after the
conﬁdentiality order is entered by the Court. Accordingly, Mr. Johnston agrees to
serve a further substantive response to this interrogatory within 14 days following
our receipt of the conﬁdentiality order after it is entered by the Court. In order to
avoid wasting the Court’s resources on this' item (and assuming the Motion is
withdrawn with respect to it), Mr. Johnston will respond with the information that
is current through the date of the response.
Jeffrey F. Ryan
February 6, 2018
Page 3_

MR JOHNSTON’S INITIAL RESPONSE TO SPECIAL
INTERROGATORY NO :24 WAS APPROPRIATE AND NOT ..

INCOMPLETE:
....;.v.;.

The initial response clearly and concisely responds to the interrogatory ”31:11....

which asks about the nature of. the relationship with Ms. Sims The nature is a ,1

business/professional relationship. It is based upon the provision of services by
Ms. Sims. The response is complete in and of itself. What Dr. Geisler is really
doing is asking follow up questions about the identity of afﬁliated businesses
which should be posed in new written discovery or at deposition.

Mr. Johnston is fully justiﬁed to stand on the initial complete response.
However, as an accommodation, and in order to avoid motion practice on this
point, Mr. Johnston agrees to provide a further response that identiﬁes the
afﬁliated entities.

MR, JOHNSTON WILL PROVIDE FURTHER RESPONSES TO
SPECIAL INTERROGATORY NOS. 36 AND 37:

While Mr Johnston believes that his initial responses to these
interrogatories are responsive and complete, there may be some confusion
regarding the payment of funds vs. expenses in the context of these
interrogatories and Mr. Johnston will provide a further response to attempt to
clarify.

MR. JOHNSTON’S PRIVACY OBJECTIONS TO SPECIAL
INTERROGATORY NOS. 3, 5, 7-9, 54 AND 56 WERE NOT ONLY
WARRANTED BUT APPROPRIATE:

Special Interrogatory Nos. 5, 7-9, 54 and 56 seek either (1) personal
ﬁnancial information (relating to the details of Mr. J ohnston’s personal
compensation from various sources for approximately a decade) or (2) private
bank account information, including account numbers. It is beyond any good
faith dispute that all of‘the foregoing ﬁnancial information is subject to the
constitutionally—-protected right of privacy that Johnston and third parties have
with respect to their ﬁnancial affairs. See, e. g., Belaire- West Landscape, Inc. v.
Superior Court (2007) I49 Cal. App. 4th 554,561 6-2. On its face, the assertion
of privacy objections 111 response to these requests in order to protect
constitutionally-protected interests is substantially justiﬁed. While, ultimately,
the assertion of privacy rights may be subject to a balancing test, it is beyond
dispute that the assertion of the objection in the ﬁrst place is proper.
Jeffrey F. Ryan
February 6, 2018
Page 4

While Dr. Geisler has offered to ameliorate the intrusion into Mr.
Jehnston’s privacy interests by agreeing to enter into a conﬁdentiality order; we
signed the proposed order more than two months ago and, to our knowledge, Dr.
Geisler has not yet even presented it to the Court for its consideration. Until the
conﬁdentiality order is submitted and entered; this remains an unfulﬁlled proposal -.

and, ultimately, an empty gesture.

Court...
Still, Mr. Johnston agrees-to serve a further substantive response to these
interrogatories within 14 days following ourrreceipttof the conﬁdentiality order
after it is entered by the

With respect to Special lnterrogatory No. 3, the basis for asserting a
privacy objection in these circumstances is that Mr. Johnston’s personal email
account was already hacked by a Mac user from an address in Petoskey,
Michigan. Dr. Geisler, who lives in Petoskey, Michigan (and who my client
believes is a Mac user), is believed to have been the individual who accessed his
email account without authorization and committed this intrusion of privacy.
Thus, Mr. Johnston had great cause to be concerned to provide additional e—mail
credential information to Dr. Geisler and risk further invasions of his privacy.
Based 'on the assumption that Dr. Geisler understands that he is not authorized to
access any of Mr. Johnston’s email accounts that are to be disclosed in response
to this interrogatory, Mr. Johnston will provide a further response to interrogatory
. no. 3.

MR, JOHNSTON’S LIMITED RELEVANCY OBJECTIONS T0 SPECIAL
INTERROGATORY NOS. 5.. 7-13. 15-18. 21'299 46, 54 AND 56 WERE
WARRANTED:

The objection to these interrogatories is only “to the extent” they seek
information that is neither relevant to the subject matter of the litigation nor likely
to lead to the discovery of admissible evidence. Given the breadth of each of
these requests, each of them seeks, to a degree, information which simply is not
relevant or likely to lead to the discovery of admissible evidence. This is not an
objection to these requests to the extent that they seek relevant information; but is
an objection to preserve such rights based on the overbreadth of the requests.

By way of example, a request for projections of sales of all Rhausler,
3COR and TeDan products seeks information that is objectionable on relevancy
grounds. There are no claims in the operative pleading that would implicate the
forecasts of any of these companies’ products. For example, there is no allegation
that any defendant made a forecast of projected sales of products in 2012 or 2014
or 2016 that any plaintiffs relied upon to their detriment and which resulted 1n
damages to plaintiffs. o the extent that there are allegations of ﬁnancial
Jeffrey F. Ryan
February 6, 2018
Page 5

improprieties, those ﬁnancial improprieties are wholly unrelated to any forecasts.
To the extent that there are claims that royalties have not been paid, the relevant
information would not be on forecasts but on actual sales.

Notwithstanding the foregoing, to address Dr. Geisler’s concern; Mr.
Johnston is prepared to provide further responses to these interrogatories which ;
do not include a limited objection on relevancy or “not likely to lead to the :53:

discovery of admissible evidence” grounds.

MR, JOHNSTON’ S OBJECTIONS AS TO OVERBREADTH OF TIME
FRAME TO SPECIAL INTERROGATORY NOS. 5. 7-13. 15-18. 27-29. 46,
54 AND 56 ARE NOT ONLY WARRANTED BUT APPROPRIATE:

Although Rhausler was started in 2008, it does not follow that every
category of informatiou requested is necessarily required for its entire life.
Seeking comprehensive information on a blanket basis for such an extended
period, of time results in interrogatories that are overbroad as to time period.
Moreover, Mr. Johnston will be asserting a statute of limitations defense to certain
of the claims (such as fraud claims) that involve alleged activities that occurred
. during the early years of Rhausler. The statute of limitations defense renders these
interrogatories overbroad as to time period, as the information from the earlier
period 'will no longer be relevant.

Producing this information for time periods which may not be relevant
constitutes a signiﬁcant burden. Nonetheless, in order to seek to resolve this item,
Mr. Johnston is willing to provide further responses that do not include an
objection based on overbreadth of timeframe.

MR, JOHNSTON’S OBJECTIONS BASED ON SPECIAL
INTERROGATORIES NOS. 10-13 AND 46 BEING UNINTELLIGIBLE
ARE NOT ONLY WARRANTED BUT APPROPRIATE:

Interrogatories 10-13 (which seek calculations of percentages) are
unintelligible to the extent they do not identify certain key information — how
such percentages should be calculated. Percentages are fractions with a
numerator and a denominator. The numerator of the percentage here is the
amount of time Johnston spent working for a particular entity. The criteria for the
denominator, however, is not identiﬁed. Does Dr. Geisler want this information
expressed as the percentage of an 8—hour work day? A 24 hour day? An average
length work day? Without knowing how Dr. Geisler wanted this fraction to be
calculated, the interrogatory is rendered unintelligible as Mr. Johnston does not
know speciﬁcally what calculation Plaintiff Geisler is seeking or how to respond.
Notwithstanding this confusion, Mr. Johnston agrees to provide ﬁirther responses
Jeffrey F. Ryan
February 6, 2018
Page 6 ,
;-

(without the “unintelligible” objection) based on his best educated guess as to
what information this interrog'atory is requesting.

Interrogatory No. 46 is likewise unintelligible because it is unclear ..

l'
whether “since 2008” is intended to be describing the measurement period for the u»!

“instructions” given or for the “information” about which the instructions were y.

”ltd-11

given. Notwithstanding this confusion, Mr. Johnston likewise agrees toiprovide
further responses (without the “unintelligible” objection) based on his best
educated guess as to what information this interrogatory is requesting.

MR. JOHNSTON ’S OBJECTION BASED ON THE DEFINITION OF
“YOU” AND “YOUR” CONTAINED IN SPECIAL INTERROGATORIES
NOS. 15-18. 27-29 AND 46 IS NOT ONLY WARRANTED BUT
APPROPRIATE:

The terms “YOU” and ~“YOUR” are deﬁned in Dr. Geisler’s
interrogatories in ways that are vague, ambiguous and unintelligible in the context
of this action, and which render the interrogatories overbroad and unduly
burdensome. The stated deﬁnition includes persons “purporting” to act on Mr.
Johnston’s behalf, or at his direction or “otherwise controlled” by him, which is
then exponentially expanded to include a litany of other individuals including
unnamed ofﬁcers, directors, shareholders, representatives and others. In‘the
context of this action, Plaintiff appears to have taken the position that Mr.
Johnston “controls” entities for which he is but a minority owner. Thus, Plaintiff
might interpret “YOU” to include Mr. Johnston but also defendants Rhausler and
TeDan and possibly other entities. This results in unintelligible and grossly
overbroad interrogatories where the term “YOU” might actually refer to one
individual and multiple companies at the same time and in the very same
question.

To the extent that substantive responses were not previously provided to
these interrogatories on the grounds of an objection to “YOU” or “YOUR,” these
terms should be deﬁned to include just Mr. Johnston, alone, and on that basis, Mr.
Johnston would withdraw his objection to this term.

MR. JOHNSTON’S OBJECTION BASED ON THE DEFINITION-OF
“TRAVEL ITINERARY” CONTAINED IN SPECIAL
INTERROGATORIES NOS. 15-18 IS NOT ONLY WARRANTED BUT
APPROPRIATE:
Jeffrey F. Ryan
February 6, 2018
Page 7

The term “TRAVEL ITINERARY” is overbroad and unduly burdensome
in that it seeks the “federal tax identiﬁcation number of the source of payment”
for the travel taken. This additional requirement should be removed from the
deﬁnition.

”
MR, JOHNSTON’S OBJECTION BASED ON THE DEFINITIONDF
“IDENTIFY” CONTAINED IN SPECIAL INTERROGATORIES NOS. 54
AND 56 IS NOT ONLY WARRANTED BUT APPROPRIATE:

These interrogatories seek speciﬁc information regarding accounts
maintained at speciﬁc ﬁnancial institutions. The problem with the deﬁned term
“IDENTIFY” is that it requires an additional ﬁeld of information which is wholly
unnecessary because Plaintiff already has this information: it purports to require
that the responses provide additional information regarding the “industry or
business” type of the organizations identiﬁed. Yet, this information is already
known (and implicit in the question): these are ﬁnancial institutions. Thus, this
deﬁnition is needlessly burdensome and should be removed.

ML JOHNSTON’ S OBJECTION TO SPECIAL INTERROGATORIES
NOS. 27-29 AS UNDULY BURDENSOME AND THAT THEY “SHOULD
BE DIRECTED TO ANOTHER PARTY” ARE NOT ONLY WARRANTED
BUT APPROPRIATE:

These requests seek projections of sales of speciﬁc products for a ten year
period. Given the issues with the deﬁnition of “YOUR” (previously discussed),
these interrogatories are rendered unduly burdensome, as it’s unclear if plaintiff
intends “YOUR” to refer to any person or entity other than Mr. Johnston. If that
is plaintiff’s interpretation; it would render these interrogatories unduly
burdensome if they need to be answered simultaneously from multiple
perspectives. Moreover, if that is plaintiffs interpretation, it creates additional
issues, in that the interrogatory should be directed to another. For example,
hypothetically speaking, if “YOUR” is intended by plaintiff to refer to “TeDan’s,”
then plaintiff should direct this interrogatory to TeDan (rather than its minority
owner, Mr. Johnston), as it presumably could require the review of TeDan
documents or data to be used for the response. Mr. Johnston agrees to withdraw
the objection that the interrogatory should be directed to another because this
issue is subsumed into the objection to the term “YOU” and “YOUR” which I
gum!

have already addressed
l"“"‘

I..
Jeﬁ‘re’y F Ry'a‘ri
February 6 2018
Page 8

MR Jenssrom 0111111111011 10 SPECIAL MERRO'GA'TQRY N0.
46 BASED 01*? A LACK OF FOUNDATION IS NOT ONLY WARRANTED
BUT APPROPRIATE
A‘s poSed this intenogatory appears to presume that a particiilar
instruction Was given Which may not be (1011t Thus the objection Was intended
tQ note that false aSsum'ption. Mr Johnston agrees to withdraw the foundation
objection and provide a further response in a manner that addresses whether or
not such an instriuCtiOﬁ Was given This should resolve this item.-

.CONC‘LUSION :

Forlthe‘ reasons noted above, Drséieisler‘should-promptly engagedn-good
faith meet and confer discussions and addreSS Mr Johiisto'n’ 3 actual or proposed
resolutions for each of the Special interrogatories disCussed'111; this letter. Dr
Geis'ler and counsel should take to heart their: obligation to actually participate in
_
good faith to try- to resolve the issues Dr. Geisler should immediately withdraw
his pending motion to compel a. further response to the: special interrogatories as;
that 111011911 Was 1mprov1dcntly and prematurely ﬁled, as evide’iiéed by the Written

‘
‘I
look forward to your reply and hope that we can productively Work
through all isSues and relieve the Court: of having to spend hours of its tune
addressing issues Which do not,i’1‘1 fact exist.

Very truly yours,
10

EXHIBIT “B”
20

Page 6
DECLARATION OF JEFFREY F. RYAN 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
JAMES L. JACOBS, State Bar No. 158277
ROBERT W. LUCKINBILL, State Bar No. 131977
GCA LAW PARTNERS LLP
2570 W. El Camino Real, Suite 400
Mountain View, CA 94040
Telephone: (650) 428—3900
Facsimile: (650) 428-3901

Attorneys for Defendants
COOJNOVO'I-lkwNA

TERRY J. JOHNSTON and ROBERT GLYNN, JR.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

1N AND FOR THE COUNTY OF SAN MATEO

FRED H. GEISLER, M.D., Ph.D., an No. 17CIV02888
individual, and NORMAN C. FLEMING, an
individual, directly, and derivatively on DEFENDANT TERRY JOHNSTON’S
behalf of RHAUSLER, INC, 3 California FURTHER RESPONSE TO FRED
Corporation, GEISLER’S SPECIAL
INTERROGATORIES, SET‘ONE
Plaintiffs, [NOS. 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 24,
46, 54 and 56]
vs.

TERRY J. JOHNSTON, an individual;
KATIE SHVIS, CPA, an individual; ROBERT
JOHN GLYNN, JR, an individual; 3COR
NMNNNMNNA—L—A-A—LA—L—A—A—A
MEDICAL, INC., a California Corporation;
TEDAN SURGICAL INNOVATIONS, LLC,
a Texas Limited Liability Company, and
NQGDWN—‘OCDQDNODUI-hOJN—‘O

DOES l to 25,
Defendants,

and RHAUSLER, IN C., a California
Corporation,

Nominal Defendant.

PROPOUNDING PARTY: Plaintiff FRED GEISLER
RESPONDING PARTY: Defendant TERRY JOHNSTON

SET NO.: ONE

TERRY JOHNSTON’ S FURTHER RESPONSE _1_
TO SPECIAL WTERROGATORIES, SET ONE:
Nos. 3. 5-13. 24. 46. 54 and 56
1 PRELIMINARY STATEMENT

2 Each of the following responses is made solely for the purpose of this action. The

3 responses are based upon information, documents and writings presently available to and

4 located by Terry Johnston (hereinafter “Responding Party” or “Defendant”) and his

5 attorneys. Discovery is continuing and will continue as long as permitted by law, statute or

6 stipulation of the parties. The investigation by Responding Party’s attorneys and agents

7 will continue to and through the trial of this action. Responding Party reserves the right,
8 prior to and at the time of trial, to introduce any evidence from any source that may be

9 discovered after the date of these responses.

10 If any information has been omitted from these responses, Responding Party
11 reserves the right to amend them to permit the insertion of any omitted information. The
12 fact that Responding Party reSponded to the interrogatories is not intended to and should

13 not be construed to be a waiver by Responding Party of any part of any objection to any

14 interrogatory.

15 To the extent that any information contained in any response is derived from or

16 contained in documents or writings prepared by anyone other than Responding Party,

17 Responding Party does not admit that statements or information contained in those

18 documents or writings are true or correct.

19 Responding Party submits these responses, Without intending to waive, and

20 expressly preserving: (a) any reservations as to competency, relevancy, materiality,

21 privilege, work product protection and admissibility of any of its responses herein; and (b)

22 the right to object to other discovery procedures involving and relating to the subject matter

23 of the interrogatories to which it responds herein.
24 Subject to and without waiver of the above—identiﬁed reservations, Responding
25 Party responds to the interrogatories as follows.

TERRY JOHNSTON’S FURTHER RESPONSE _2_
fétﬂm’f’ T0 SPECIAL INTERROGATORIES, SET ONE:
tamer” Nos. 3. 5-13. 24. 46. 54 and 56
RESPONSE TO SPECIAL INTERROGATORIES

SPECIAL INTERROGATORY NO. 3:

Identify all email address YOU have used to conduct business since 2008. For

purposes of this interrogatory, YOU means and refers to Defendant TERRY J.
COCONQCﬂ-w-A

JOHNSTON.

RESPONSE TO SPECIAL INTERROGATORY N0. 3:

Responding Party objects to this Interrogatory on the grounds that no conﬁdentiality

O order is entered in this case and to the extent it impinges on Responding Party’s rights of
--\

privacy. Responding Party’s personal email account was illegally accessed/hacked
N
without Responding Party’s consent by a user who signed in from IP address located in
(.0

Petoskey, Michigan ——
where Plaintiff Geisler resides. Such unlawful access to
4>

01
Responding Party’s personal email account is illegal. Geisler is hereby n

Case Info

Judge

Weiner, Marie S. Track Judge’s New Case

Case No.

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Document Filed Date

February 09, 2018

Case Filing Date

October 24, 2013

County

Parties

3COR, INC, a California Corporation Defendant
3COR Medical, Inc. Defendant
AZUCENA, KIMBERLY Defendant
BASS, DANIEL Defendant
BODZIN, ROBERT M. Attorney
BODZIN, ROBERT M. Attorney for the Defendant
COPERNICUS DYNAMICS, LP Plaintiff
DELL, DAVID R Attorney for the Defendant
DER, JAMES J, JR Attorney for the Defendant
DOES 1 to 25 Defendant
DOES 2 to 25 Defendant
FISHMAN, DANIEL Defendant
FLEMING, NORMAN C. Plaintiff
Geisler, Fred Plaintiff
GLYNN, ROBERT JOHN, JR Defendant
HALLORAN, TIMOTHY J. Attorney for the Defendant
HARDY, DANIEL D. Attorney for the Defendant
INDUSTRY OF THE REDWOODS, LLC, a Nevada LLC Defendant
JOHNSTON, KARI Cross Defendant
Johnston, Terry Defendant
MAGNOLIA GROUP, LLP Defendant
MICLEAN, DAVID J Attorneys for Defendants
MIER, ROWENA Defendant
NEUMAN, FARLEY J. Attorney for the Defendant
PROUNTZOS, TOM Attorney for the Defendant
RHAUSLER, INC. Defendant
RHAUSLER, INC., a California corporation Defendant
ROES 1-25, INCLUSIVE Plaintiff
RYAN, JEFFREY F. Attorney for the Plaintiff
SIMS, KATIE, Certified Public Acc Defendant
TEDAN SURGICAL INNOVATIONS, LLC, a Texas Limited Liability Company Cross Complainant
TEDAN SURGICAL INNOVATIONS, LLC, a Texas Limited Liability Company Defendant
ZISCHKE, GENA Plaintiff
James Jacobs Attorneys for Defendants
Robert Luckinbill Attorneys for Defendants
Ronald Katz Attorney
Cynthia Smith Attorney
Nicole Ossi Attorney
Jennifer Hagan Attorneys for Plaintiffs
Eugene Lee Attorney
Katrina Durek Attorney
Danielle Mihalkanin Attorneys for Defendants
James Der Attorney
William Leet Attorneys for Plaintiffs
Arthur Harris Attorneys for Defendants
Scott Fraser Attorneys for Plaintiffs
Robert Wood Attorneys for Defendants
Jason Imes Attorney
Jason Julius Attorneys for Defendants
Kavin Williams Attorneys for Defendants
Whitney Carlson Attorneys for Defendants
Leslie Jacobs Attorneys for Defendants
Robert McClelland Attorneys for Defendants
Ann Williams Attorneys for Defendants
Jeffrey Friedman Attorneys for Plaintiffs
Misasha Graham Attorney
Way-Chan Tseng Attorneys for Plaintiffs
Danny Barak Attorney
Paul Rice Attorney
Kevin Holl Attorney
Kim Dincel Attorney
Julie Bonnel Attorneys for Defendants
John Black Attorneys for Defendants
Douglas Kahn Attorneys for Plaintiffs
Alison Greene Attorneys for Defendants
David Ross Attorney
Paul Vorsatz Attorney
Ronald Kagan Attorneys for Defendants
David Hardy Attorneys for Defendants
Robert Nida Attorney
Phill Silver Attorney
EMILEE BROWN Attorney
James Hagan Attorney
Robert Maynes Attorney

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Party Discovery: FRED GEISLER, MD vs TERRY JOHNSTON

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