Judge: Daniel M. Crowley, Case: 23STCP01914, Date: 2023-09-07 Tentative Ruling

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Case Number: 23STCP01914    Hearing Date: January 17, 2024    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Non-Party Konnech Inc.’s unopposed application to permit Constantine Z. Pamphilis to appear pro hac vice is granted.

Petitioners’ petition to enforce subpoena duces tecum is denied.

Non-Party Konnech Inc. (“Konnech”) applies unopposed to permit Constantine Z. Pamphilis (“Pamphilis”) to appear pro hac vice.  (Notice Pro Hac Vice, pg. 2; CRC, Rule 9.40.)

Petitioners Dr. Paul C. Broun’s (“Broun”), Sheri Gilligan’s (“Gilligan”), and Voter GA’s (“Voter GA”) (collectively, “Petitioners”) petition for an order compelling Non-party Los Angeles District Attorney’s Office’s (“LADA”) Custodian of Records and Evidence to comply with Petitioners’ second subpoena duces tecum, served on LADA on March 14, 2023.

Background

On December 8, 2022, Petitioners served LADA with their first subpoena duces tecum, to which LADA objected and refused to produce any requested documents.  (Decl. of Cubeiro ¶¶3-4, Exh. B.)  On January 27, 2023, Petitioners’ counsel and LADA’s counsel met and conferred via telephone to discuss the subpoena, and Petitioners’ counsel offered to narrow the focus of the request.  (See Decl. of Cubeiro ¶6.)  On February 1, 2023, Petitioners’ counsel emailed LADA’s counsel a narrowed and focused request.  (Decl. of Cubeiro ¶7, Exh. C.)  Petitioners’ counsel did not receive a response to his email.  (Decl. of Cubeiro ¶8.)  Petitioners served the Subpoena at issue on March 13, 2023.  (Decl. of Cubeiro ¶9.)  On March 31, 2023, LADA filed an objection to Petitioners’ second subpoena and refused to provide any of the requested documents.  (Decl. of Cubeiro ¶10.)

On September 25, 2023, Petitioners filed the instant petition for an order compelling Non-party LADA’s Office Custodian of Records and Evidence to comply with Petitioners’ second subpoena duces tecum, served on LADA on March 13, 2023.  The subpoena requested the production of materials seized by the LADA on October 4, 2022, from Konnech in connection with its investigation into Konnech and the arrest of its Chief Executive Officer, Eugene Yu (“Yu”).[1]

The subpoena requested LADA to produce and permit inspection and copying of:

A copy of all forensically sound evidence drives imaged from a) computer/electronic hardware obtained from any Konnech, Inc. location or b) any and all cloud-based services used by Konnech, including the following:

1)    From the Konnech, Inc. corporate network: a. All PCAP traffic at the network perimeter b. All images identifying ingress and egress TCP/IP source and c. Destination IP addresses for all known ports or protocols in use in such communications.

2)    From the Konnech, Inc. network mapping atoll, like NMAP a. Enumerated topology of the network b. Enumerated topology of network infrastructure, and c. Enumerated topology hosts (servers, workstations) existing on the network, including all generated NMAP files and PDFs

3)    From Konnech, Inc. data captured from all third party cloud services company sites like Jira, Microsoft Teams, or any similar services, including corporate administrative services.

In regards to a search warrant executed in the State of Michigan, or otherwise gathered in relation to Case No. BA 509784, People of the State of California v. Eugene Wei Yu (DOB: 11/01/1957).

The LA District Attorney had objected:

OBJECTION TO REQUEST NO. 1: Objection. Responding Praty [sic] objects to this request to the extent it seeks documents and materials already previously requested and/or covered by Propounding Party’s prior Subpoena Duces Tecum and already responded to on December 23, 2022. Responding Party further objects to this request on the grounds that the request is vague, ambiguous, overly broad and burdensome and to the extent it seeks documents which are either equally available and/or from third parties and/or are not subject to disclosure without a court order or pursuant to statute and/or case law. Responding Party further objects to the extent it seeks documents which are not relevant to the issues in the case and not likely to lead to the discovery of admissible evidence. Responding Party also objects to the extent it invades the privacy rights of third parties protected by State Constitution and/or specific protective orders issued by the Court. Responding Party further objects to the extent the request seeks documents not subject to disclosure including but not limited to those protected by the attorney-client privilege and/or Attorney Work product doctrine (CCP 2018.020 and 2018.030); the Official Information privilege (Evid. Code 1040); documents exempt from disclosure (including but not limited to GC 6254, PC 851.8, PC 1203.45, Evid. Code 1017, 1560(d), PC 1534(a), 11105, and Central Valley Ch.7th Step Foundation v. Younger (1989) 214 Cal.App.3d 145 and Loder vs. Municipal Court (1976) 17 Cal.3d 859); Court transcripts (GC 69954); Criminal history documents (PC 11140 et seq. and 13300 et seq.); Probation Reports (PC 1203.05); Grand Jury documents (PC 891 and 924 et seq.); Computer information (AG Op.#06-203); Charge Evaluation Worksheets (AG Op.#06-203); Medical records (HIPPA and PC 1543 and WIC 5328); Juvenile court records (WIC 827 et seq); and/or Items for which Responding Party is not the custodian of records (Cooley vs. Superior Court (2006) 140 Cal.App.4th 1039, 1041) etc. Lastly, Responding Party objects to this request on the grounds that the underlying criminal matter and related criminal matters are currently pending and/or still under investigation and therefore the need for maintaining the confidentiality of certain records and information outweighs the benefits of disclosure at this time.  (See Cal. Evid. Code §1040(b)(2) and County of Orange v. Superior Court (2000) 79 Cal. App.4th 759.

On September 25, 2023, after review of the motion to enforce compliance with the subpoena, LADA’s opposition, and Petitioner’s reply, the Court overruled LADA’s objections and ordered it to comply with the subpoena. 

On October 5, 2023, Konnech, Inc. applied ex parte for an order shortening time for hearing on its motion to intervene and for hearing on an application to admit Constantine Pamphilis pro hac vice.  The Court granted the application and set the hearing on the motions to intervene and on the application to admit Constantine Pamphilis pro hac vice on December 7, 2023.  The Court also stayed its order of September 25, 2023, until December 15, 2023. 

On December 7, 2023, this Court granted Konnech’s motion for leave to intervene as a matter of right, Konnech’s motion for reconsideration of Petitioner’s petition to enforce their subpoena duces tecum to LADA, and continued Konnech’s application to Constantine Pamphilis pro hac vice, ordering parties to file their documents according to a briefing schedule in advance of this hearing.  (12/7/23 Minute Order.)

On December 21, 2023, Konnech filed its opposition to Petitioners’ petition.  On January 11, 2024, Petitioners filed their reply.

A.   Motion to be Admitted Pro Hac Vice

C.R.C., Rule 9.40(d) provides that an application to be admitted pro hac vice must state the following:

(1)   The applicant’s residence and office address;

(2)   The courts to which the applicant has been admitted to practice and the dates of admission;

(3)   That the applicant is a licensee in good standing in those courts; 

(4)   That the applicant is not currently suspended or disbarred in any court; 

(5)   The title of each court and cause in which the applicant has filed an application to appear as counsel¿pro hac vice¿in this state in the preceding two years, the date of each application, and whether or not it was granted; and

(6)   The name, address, and telephone number of the active licensee of the State Bar of California who is attorney of record.

C.R.C., Rule 9.40(e) provides as follows, “[a]n applicant for permission to appear as counsel pro hac vice under this rule must pay a reasonable fee not exceeding $50 to the State Bar of California with the copy of the application and the notice of hearing that is served on the State Bar.”

The instant application provides the information required by C.R.C., Rule 9.40(d).  Pamphilis submitted proof that the $50.00 fee was paid to the State Bar of California.  (C.R.C., Rule 9.40(e); Supp.-Decl. of Manacek ¶¶2, 4, Exhs. 1, 2.)  Pamphilis submitted proof of service by mail on the State Bar of California at its San Francisco office the of verified application and notice of the hearing in accordance with C.C.P. §1013a.  (C.R.C., Rule 9.40(c)(1); Supp.-Decl. of Manacek ¶3 and pg. 5 (Proof of Service).)

Pamphilis has provided this Court with his Texas bar number (Bar. No. 00794419). While this requirement is not enumerated in C.R.C., Rule 9.40, the Court would need this number to enter Pamphilis’ application into the Court’s system.

Accordingly, Defendant’s unopposed motion for an order admitting Constatine Z. Pamphilis to appear pro hac vice is granted.

Moving party to give notice.

B.    Petition to Enforce Subpoena Duces Tecum

Petitioners bring the instant petition on the grounds that the records sought from LADA are directly relevant to Petitioners’ out-of-state case, essential to a fair resolution of the lawsuit, and cannot be obtained by less intrusive means.  (Notice of Petition, pg. 2.)

Request for Judicial Notice

Petitioners’ 1/11/24 request for judicial notice of (1) A printout of a government contract summary from USASPENDING.gov: USSPENDING.gov Award Profile: Contract Summary for Konnech, Inc., https://www.usaspending.gov/award/CONT_AWD_0002_9700_HQ056610A0004_9700 (P-RJN, Exh. 1); (2) Order Vacating Injunction, TRO, and Order of Contempt of November 22, 2022, in the matter of In re Gregg Phillips, No. 22-20578 (5th Cir. Nov. 3, 2022), filed as Dkt. No. 62 in Konnech, Inc. v. True The Vote, Inc., et al., S.D. Tex. Case No. 4:22-cv-03096 (Sept. 12, 2022) (P-RJN, Exh. 2); (3) Motion for Leave to Inspect Property of Plaintiff to Prevent Further Spoilation of Evidence filed on February 24, 2023, in Konnech, Inc. v. True The Vote, Inc., (S.D. TX 4:22-cv-03096), Dkt. No. 87 (P-RJN, Exh. 3); (4) Affidavit of Grant Bradley, originally filed on April 7, 2023, as Exhibit H of the Supplemental Submission for Reply in Support of Motion for Leave to Inspect in Konnech, Inc. v. True The Vote, Inc., (S.D. TX 4:22-cv-03096), Dkt. No. 94 (P-RJN, Exh. 4); (5) Affidavit of Harry Haury, originally filed on February 24, 2023, as Exhibit B of the

Opposed Motion to Inspect Property in Konnech, Inc. v. True The Vote, Inc., (S.D. TX 4:22-cv-03096), Dkt. No. 87-4 (P-RJN, Exh. 5); (6) Verified Complaint and Jury Demand in Bradley v. Konnech, Inc., No. 22-0853-CZ (Mich. Cir. Ct. Dec. 22, 2022), filed on February 24, 2023 (P-RJN, Exh. 6); (7) Broun v. State of Georgia, Complaint and Petition for Declaratory and Injunctive Relief,

of March 10, 2022, No. 2022CV361918 (Ga. Superior Ct.) (P-RJN, Exh. 7); and (8) Stipulation and Dismissal filed on April 19, 2023, in Konnech, Inc. v. True The Vote, Inc. (S.D. TX 4:22-cv-03096), Dkt. No. 96 (P-RJN, Exh. 8), is granted, however, the Court does not consider the truth of the matters asserted.

Legal Standard

C.C.P. §2025.480(a) provides: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  (C.C.P. §2025.480(a).)

C.C.P. §2025.010 is limited by §2017.010, which only permits discovery regarding “any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (C.C.P. §2017.010; see People v. West Coast Shows, Inc. (1970) 10 Cal.App.3d 462, 469-470  [explaining that to obtain a subpoena duces tecum, a party must show specific facts justifying discovery, “the test being whether the material sought to be discovered is ‘(1) relevant to the subject matter, (2) material to the issues and (3) needed for effective preparation of trial’”].)

Discussion

Petitioners fail to meet their burden to demonstrate the information sought in the Subpoena is reasonably calculated to lead to the discovery of admissible evidence. 

First, none of Konnech’s computer equipment, which contained approximately 350 Terabytes of data dating back to the formation of Konnech in 2006, including 12 computer servers, 14 hard drives, laptops, desktops, workstations, and firewall equipment (“Konnech Property”), is relevant to Petitioners’ claims against the State of Georgia (“Georgia Lawsuit”) because it indisputably does not contain any Georgia voter registration identification information, which Petitioners claim is the basis for their request.  (Opposition, Exh. 2 at ¶¶2, 10-12; Decl. of Favorito ¶2, Exh. A.)  Konnech is only involved with recruiting, training and scheduling poll workers and is not involved with any aspect of voter registration.  (Opposition, Exh. 2 at ¶12.)  Konnech had no Georgia-related data, let alone Georgia voter registration identification information, as of October 4, 2022, and therefore no such data is contained on the servers that the LADA seized from Konnech on that date. The Petition seeks the production of materials that are wholly irrelevant to the Georgia Lawsuit.

Second, the Subpoena is overly broad because it is not limited in time nor scope to the production of only Georgia-related voter registration identification information.  The Subpoena seeks unfettered access to approximately 350 Terabytes of Konnech data and information, including the source code for Konnech’s proprietary software and attorney-client and work product privileged communications that date back to Konnech’s inception in 2006.  (Opposition, Exh. 2 at ¶¶14-16; see Opposition, Exh. 2 at ¶5.)  Konnech had not entered into any contract in Georgia until September 9, 2022, when Konnech first contracted with DeKalb County.  (See Opposition, Exh. 2 at ¶¶5, 11.)  The data Petitioners seek is highly sensitive in nature and includes proprietary business information and personal identifying information of, not only Konnech employees, but also that of poll workers in states other than Georgia, including LA County poll workers.  (Opposition, Exh. 2 at ¶¶14-16.)

Accordingly, Petitioners’ petition is denied.

Conclusion

Petitioners’ petition is denied.

Moving Party to give notice.

Dated:  January _____, 2024