-cv-03364-rmw document michael d. braun (167416)securities.stanford.edu/filings-documents/1032/...se...

se 5:04-cv-03364-RMW Document 147 Filed 10/17/2006 of 2 2

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Michael D. Braun (167416)BRAUN LAW GROUP, P .C .12400 Wilshire Blvd ., Suite 920Los Angeles, CA 90025Tel: (310) 442-7755Fax: (310) 442-775 6

Liaison Counsel for Lead Plaintiffs

Andrew M. Schatz (Admitted Pro Hac Vice)Jeffrey S. Nobel (Admitted Pro Hac Vice)Seth R. Klein (Pro Hac Vice Application in Process)SCHATZ & NOBEL, P .C .One Corporate Center20 Church Street, Suite 1700Hartford, Connecticut 06103Tel: (860) 493-6292Fax: (860) 493-6290

Lead Counsel for Lead Plaintiffs

[Additional counsel appear onsignature page]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

IN RE NETOPIA, INC. SECURITIESLITIGATION

CASE NO.: C 04-3364 RMW (PVT)And Related Cases

CLASS ACTION

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFPLAINTIFFS' MOTION TO COMPELPRODUCTION OF DOCUMENTS FROMDEFENDANTS ALAN B. LEFKOF, DAVIDA. KADISH, AND NETOPIA, INC .

Assigned to Magistrate Judge Patricia V .Trumbull for Discovery Practice

DATE: November 28, 2006TIME: 10:00 a.m.CTRM : 5, Fourth Floor

This Document Relates to :

All Actions

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM

DEFENDANTS ALAN B. LEFKOF, DAVID A. KADISH, AND NETOPIA, INC.

CASE NO . : C 04-3364 RMW (PVT)%% FileserveAShareddocSIBLGWETOPIAIPLD-WPDIMPA re Mx to Compel Production of Document-pd

5:04-cv-03364-RMW Document 147 Filed 10/17/2006 of 2 2

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Allegations Of The Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. The SEC's Investigation Of Netopia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. The Netopia Defendants' Refusal To Produce Documents . . . . . . . . . . . . . . . . . . . . 5

III. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. The Defendants Are Prohibited From Using The A ttorney-Client PrivilegeTo Withhold The Contested Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1 . Defendants Have Waived Any Purported Attorney-Client PrivilegeBy Disclosing Communications Involving Kadish To PlaintiffsAnd The SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. Defendants Have Waived Their Purported Attorney-Client P rivilegeBy Placing Their Knowledge "At Issue". In This Litigation . . . . . . . . . . . . . 8

3. The Attorney-Client Privilege Is Inapplicable Because KadishDirectly Participated In The Securities Fraud Relating To ICC . . . . . . . . . . 9

B. The "Work Product" Doct rine Does Not Apply To The ContestedDocuments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. The Netopia Defendants Should Not Be Allowed To Use Any Documents

Withheld From Plaintiffs In This Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3

1

MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM

DEFENDANTS ALAN S . LEFKOF, DAVID A. KADISH, AND NETOPIA, INC .

CASE NO.: C 04-3364 RMW (PVT)\\Fileserverlahareddocs\BLGW ETOPIA\PLD-WPD%MpA re Mx to Compel Production of Document .v.Pd


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TABLE OF AUTHORITIES

FEDERAL CASES

Admiral Insurance Co. v. U.S District Ct. for District ofAriz. ,881 F.2d 1486 (9th Cir. 1.989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Atari Corp. v. Sega ofAmerica ,161 F.R.D. 417(N.D.Cal.1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Cox v. Administrator US Steel & Carnegie,17 F.3d 1386 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Fox v. California Sierra Finance Services ,120 F.R.D. 520 (N.D. Cal. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Gomez v. Vernon,(9th Cir. 2001) 9255 F.3d 1118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Hearn v. Rhay,68 F.R.D. 574(E.D. Wash. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Kintera, Inc. V. Convio, Inc. ,219 F.R.D . 503 (S.D . Cal . 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

In re Napster, Inc. Copyright Litigation,235 F.R.D. 463 (N.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11

In re Syncor ERISA Litigation,229 F.R.D . 636 (C.D . Cal . 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Tennison v. City & County of San Francisco ,226 F.R.D. 615 (N.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2

U. S. v. Fernandez,231 F.3d1240(9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1

United States v. Amlani,169 F.3d 1189 (9th Cir . 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Bergonzi, 6216 F.R.D. 487(ND.Cal. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

United States v. Laurins, 1 i857 F.2d 529 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Weil v. Investment/Indicators, Research and Management, Inc., 6, 7647 F.2d18(9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ii


DEFENDANTS ALAN B . LEFKOF, DAVID A. KADISH, AND NETOPIA, INC.

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STATE CASES

In re McKesson HBOC, Inc. Sec. Litigation ,No. 99-CV-20743, 2005 WL. 934331 (March 31, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 1 2

FEDERAL STATUTES

Fed. R. Civ . P. 26(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Fed. R. Civ . P. 37(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

iiiMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM


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I. INTRODUCTION

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Plaintiffs/Class Representatives James P . Levy and David M. Simon ("Plaintiffs")

respectfully submit this Memorandum of Points and Authorities in support of the their Motion t o

Compel. By this motion, Plaintiffs seek to compel production of the following document s

(collectively, the "Contested Documents") :

(i) The transcript of the testimony provided by Defendant David A . Kadish ("Kadish")

to the Securities Exchange Commission ("SEC") in connection with the SEC's

investigation of Netopia's accounting and financial results;

(ii) The unredacted versions of thirty (30) documents listed in the Netopia Defendants'

Redaction Log;' and

(iii) All one-hundred and twenty (120) documents listed in the Netopia Defendants'

Privilege Log.'

The Netopia Defendants rely primarily on the "attorney-client" privilege to justify their refusal t o

produce the Contested Documents . As discussed in greater detail below, the attorney-client

privilege is inapplicable to the Contested Documents for three reasons .

First, the Netopia Defendants have clearly waived any purported attorney-client privilege .

As discussed below, Kadish testified to the SEC and disclosed his communications with Defendant

Alan B. Lefkof ("Lefkof'), Netopia's President and CEO, as well as with the other Defendants and

other Netopia employees with respect to the matters underlying this litigation. Similarly, through

three days of testimony to the SEC, Lefkof disclosed his communications with Kadish concerning

the matters underlying this litigation ; during his SEC testimony, Lelkof (represented by counsel) did

not refuse to answer any questions concerning his communications with Kadish pursuant to the

attorney-client privilege or "work product" doctrine. Moreover, counsel for the Netopia Defendant s

' Specifically, Plaintiffs seek production of the unredacted versions of NET 24-25, 92-93,4457, 4603, 5067-68, 5069-70, 5185, 5405-06, 5688-89, 7318, 7319, 7505, 7528-7529, 8436, 8441-442, 8444, 8448, 8457, 8494-95, 8496-97, 8524, 8525, 8526-27, 8528-29, 8530-31, 8532-34, 8537-

38, 8539-40, and 8556-58 . See Declaration of Seth R. Klein ("Klein Decl ."), Ex. A.

2 See Klein Decl ., Ex. B. The Netopia Defendants did not provide any Bates-stamp

numbers for the documents identified in their Privilege Log .


DEFENDANTS ALAN B . LEFKOF, DAVID A. KADISH, AND NETOPIA, INC .

CASE NO.: C 04-3364 RMW (PVT)X%Files rverlshareddO %BLG%NETOPIAIPLD-WPDWIPA re Mx to Compel production of DocumeM.wpd


1 have produced the entire transcript of Lefkofl s SEC testimony to Plaintiffs . And, the Netopia

2 Defendants produced to Plaintiffs (and the SEC) numerous other documents disclosin g

3 communications between Kadish and Lefkof and others within Netopia. By voluntarily disclosing

4 Kadish's communications related to the transactions underlying this litigation, the Netopi a

5 Defendants have waived any purported attorney-client privilege arising out of Kadish's

6 communications .

7 Second, in the alternative, the Netopia Defendants are barred from asserting the attorney-

8 client privilege with respect to their communications with Kadish because they have affirmatively

9 placed these communications "at issue" in this litigation . Specifically, by their Affirmative

10 Defenses in this litigation, the Netopia Defendants have expressly alleged that they are not liable for

11 Netopia's false financial results issued during the Class Period because they did not know th e

12 adverse facts that other Netopia employees admit knowing (i . e ., that ICC, Netopia's largest software

13 customer, had no unconditional obligation to actually purchase Netopia's products) and becaus e

14 these terms were concealed from the Netopia Defendants by other Defendants and Netopia

15 employees. As a result, the Netopia Defendants have affirmatively placed their knowledge "at

16 issue" in this litigation, and they are barred from asserting the attorney-client privilege to prevent

17 disclosure of the very documents and communications that would disprove their defenses .

18 Third, in the alternative, the attorney-client privilege, may not be used to conceal th e

19 information in the Contested Documents because Kadish was a participant in the securities fraud

20 alleged in this case. Under the "crime-fraud" exception to the attorney-client privilege ,

21 communications with an attorney who participates in a fraud cannot be shielded from disclosure .

22 In addition to asserting the attorney-client privilege, the Netopia Defendants also erroneously

23 assert the "work product" doctrine as a basis for refusing to produce the Contested Documents . As

24 discussed below, the "work product" doctrine does not apply under the facts of this case . The

25 doctrine only protects documents prepared in anticipation of litigation . Here, the Netopia

26 Defendants only assert that fourteen (14) of the one hundred and twenty (120) documents withheld

27 as "work product" were prepared in anticipation of litigation; as a result, it is indisputable that the

28 one hundred and six (106) documents that were admittedly not prepared in anticipation of litigation

2MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS ' MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM


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ase 5:04-cv-03364-RMW Document 147 Filed 10/17/2006 of 2 2

1 cannot be withheld from Plaintiffs as "work product ." Even as to the fourteen documents that th e

2 Netopia Defendants do assert were prepared in anticipation of litigation, available facts suggest that

3 these documents were prepared to examine the propriety of Netopia's accounting and other business

4 matters. In any event, the Defendants have waived any protections of the "work product" doctrine

5 by affirmatively placing their knowledge "at issue" in this litigation .3

6 II. BACKGROUND

7 A. The Allegations Of The Complaint

8 In their Second Consolidated Amended Complaint (the "Complaint"), Plaintiffs allege, inter

9 alia, that the Netopia Defendants overstated Netopia's revenue, earnings and accounts receivable by

10 fraudulently including revenue from a bogus transaction with a customer, Interface Computer

11 Communications, Inc . ("ICC"), to supply Netopia's products to the School District of Philadelphia

12 ("Philadelphia") 4 Complaint, 1139, 53(a) .5 The transaction between Netopia and ICC was bogus

13 because ICC did not have an unconditional obligation to purchase Netopia's products ; rather, the

14 Netopia Defendants had agreed that ICC did not have to pay Netopia unless and until Philadelphia

15 decided to buy the products from ICC . IT 21-48. The false financial results attributable to thi s

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17 3 To the extent that the Netopia Defendants in their Privilege Log cite European Union18 privacy regulations as an additional basis for withholding certain documents (see Klein Decl ., Ex . B

at 3-9, 11), Plaintiffs do not object to the Netopia Defendants redacting personal data such as phone19 numbers, addresses, and social security numbers or equivalents from these documents .

20 4 In previous versions of the Complaint filed with the court, Plaintiffs explained that21 Defendants had also used ICC to report overstated financial results during the fiscal year ended

September 30, 2002, reporting approximately $1,500,000 in revenue in violation of GAAP from a

22 "contingent sale" with ICC for the quarter ended June 30, 2002 in connection with a transactionwith the Chicago Public Schools (Chicago) . Pursuant to the Judge Whyte's December 15, 2005 ,

23 Order Denying in Part and Granting in Part Defendants' Motion to Dismiss or Strike (Doc . 105) (the

24 "December Order"), plaintiffs removed much of the factual detail concerning the Chicago

transaction from the current Complaint . However, as the Court recognized in the December Order

25 (at 6), due to the "Chicago transaction's similarity to the Philadelphia transaction, aspects of thePhiladelphia transaction may still be relevant. to Plaintiffs case."

265 In addition to the Netopia Defendants, the Complaint names as defendants William Baker,

27 Senior Vice President and CFO of Netopia, and Thomas A. Skoulis, Senior Vice President and

28 General Manager of Netopia. Messrs . Baker and Skoulis are separately represented and are not

parties to this motion.3


DEFENDANTS ALAN B. LEFKOF, DAVID A . KADISH, AND NETOPIA, INC.

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bogus transaction with ICC were first reported by Defendants on November 5, 2003, and were

repeated in several press releases and SEC filings throughout the Class Period . ¶ 53(b)-(e) . The

Complaint describes in great factual detail in detail how the Defendants, including Kadish, planned,

carried out, benefitted from, and then desperately attempted to cover-up the securities fraud that they

carried out with respect to ICC and Philadelphia.' ¶¶ 21-53 .'

B. The SEC's Investigation Of Netopia

On August 17, 2004, the Netopia Defendants reported that the SEC had commenced an

investigation of Netopia's accounting and financial results . ¶ 63 . During the course of the

investigation, at least ten different witnesses provided testimony to the SEC, including Kadish and

Lefkof, Defendant William Baker ("Baker"), Defendants Thomas Skoulis ("Skoulis"), three

employees of KPMG LLP, and at least five other Netopia employees with knowledge concerning

the events underlying this litigation . In addition, the Netopia Defendants produced thousands of

pages of documents to the SEC . Significantly, Lefkof testified at length concerning his

communications with Kadish over three days of testimony, and the Netopia Defendants produced

the transcript of Lefkof's SEC testimony to Plaintiffs . Similarly, Kadish testified before the SEC

concerning his communications with Leflcof and others within Netopia concerning the

circumstances underlying this litigation .

At the conclusion of its investigation, the SEC charged several former and current Netopia

officers and employees with violations of the federal securities laws . See Klein Decl., Ex. C.

Defendants Lefkof and Baker have both settled with the SEC, both paying monetary fines .

6 The Complaint alleges, inter alia, that these false financial results artificially inflated the

price of Netopia shares during the Class Period, and enabled the Defendants to sell their holdings of

Netopia stock at vastly inflated prices. Kadish sold 118,850 shares (83% of his total holdings)

during the Class Period for over $1 .8 million. By contrast, Kadish sold no shares in over 44 months

prior to the start of the Class Period . ¶ 76. Lefkof sold all of his directly-owned shares during the

Class Period (after having sold no shares for the 23 months before the Class Period), reaping over

$1 .38 million. ¶ 74. Defendants Baker and Skoulis also each sold the vast majority of their shares

during the Class Period, for $944,000 and $668,000 respectively . ¶¶ 75, 77 .

' The Complaint also alleges that beginning on January 20, 2004, Netopia's stock price wasfurther inflated by additional material misrepresentations concerning the revenue from Swisscom,

Netopia's largest customer. ¶¶ 66-72.4

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Defendant Baker has also been barred from serving as an officer or director of a public company or

as an accountant for five years. Id. The SEC's lawsuit against other former Netopia officers and

employees remains ongoing . Id.

C. The Netopia Defendants ' Refusal To Produce Documents

On or about December 15, 2005, the Court (Whyte, J .) denied the Netopia Defendants '

motions to dismiss Plaintiffs' § 10(b) claims under the Securities Exchange Act of 1934 (the "1934

Act") against Netopia, Lefkof, Baker, and Skoulis, and Plaintiffs' §20(a) claims under the 1934 Act

against all Defendants ( including Kadish) . See Klein Decl ., Exhibits D, E, F.8 . Following the

Court's denial of these motions to dismiss, Plaintiffs served their First , Second and Third Requests

for Production of Documents (the "Document Requests"), seeking documents concerning the

claims, allegations and affirmative defenses asserted in this litigation .

In response, the Netopia Defendants redacted 30 documents and withheld over 120 others

(including the transcript of Kadish's testimony before the SEC, which is not included in

Defendants' Privilege Log) based upon an improper assertion of the attorney-client privilege and

"work product" doctrine . See Klein Decl., Exs. A (the Netopia Defendants' "Redaction Log") and

B (the Netopia Defendants' "Privilege Log") . Counsel for Plaintiffs and the Netopia Defendants

conducted several "meet and confer" conferences (in addition to exchanging extensive

correspondence) in an attempt to resolve these objections . See, e.g., Klein Decl., Exs. G, H, I .

Unfortunately, the Netopia Defendants continue to refuse to produce the Contested Documents (see,

e.g., Klein Decl, Ex. J), and Plaintiffs are forced to move pursuant to Fed . R. Civ. P. 37(a)(2) for an

order compelling the Netopia Defendants to produce the Contested Documents .

8 On or about June 19, 2006, the Court granted Plaintiffs' Motion to Certify a Class

consisting of all persons who purchased the common stock of Netopia from November 6, 2003,through August 16, 2004, excluding members of Defendants' immediate families, any entity inwhich any Defendant has a controlling interest, and the legal representatives, heirs, successors or

assigns of any such excluded person.5


DEFENDANTS ALAN B. LEFKOF, DAVID A . KADISH , AND NETOPIA, INC .

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C se 5:04-cv-03364-RMW Document 147 Filed 10/17/2006 of 22

1 III. ARGUMENT

2 A. The Defendants Are Prohibited From Using The Attorney-Client Privilege ToWithhold The Contested Documents

3

4 It is well-established in the Ninth Circuit that the attorney-client privilege must be "strictly

5 construed" because "it impedes full and free discovery of the truth ." Weil v. Investment/Indicators,

6 Research and Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981). Asa result, "the burden of

7 proving that the attorney-client privilege applies rests not with the party contesting the privilege, but

8 with the party asserting it ." Id at 25. The Netopia Defendants have utterly failed to meet that

9 burden.

10 1. Defendants Have Waived Any Purported Attorney-Client Privilege ByDisclosing Communications Involving Kadish To Plaintiffs And The

11 SEC

12 The Netopia Defendants have waived any privilege relating to the Contested Document s

13 because they have already disclosed communications with Kadish concerning the matters underlying

14 this litigation . Once a party voluntarily discloses purportedly privileged communications, whether

15 through testimony, document production, or both, "fairness requires a finding that the attorney-

16 client privilege has been waived as to the disclosed information and all information on the same

17 subject." Fox v. California Sierra Fin. Services, 120 F.R.D. 520, 525-28 (N .D. Cal . 1988) (witness

18 waived attorney-client privilege, even as to third parties, as to all matters concerning which h e

19 voluntarily testified before the SEC) ; United States v. Bergonzi, 216 F.R.D. 487, 495-97 (N.D. Cal .

20 2003) (holding that production of documents claimed to be privileged to the Government and th e

21 SEC constituted waiver of the attorney-client privilege ; In re McKesson HBOC, Inc. Sec. Litig., No.

22 99-CV-20743, 2005 WL 934331, at *4 (March 31, 2005) (Whyte, J .) (disclosure to the SEC waives

23 the attorney-client privilege) .

24 Here, Lefkof and Kadish both testified before the SEC . Lefkof repeatedly disclosed and

25 discussed his communications with Kadish concerning ICC and the circumstances underlying this

26 litigation. See, e.g., Klein Decl., Ex. K (Lefkof Transcript) at 219, 393, 395, 403, 431, 494, 505-06,

27 570-71, 589, 623, 647, 679, 693. The Netopia Defendants produced that transcript to Plaintiffs, and

28 appear to have produced to the SEC the same documents that the Netopia Defendants have now


DEFENDANTS ALAN B. LEFKOF , DAVID A. KADISH, AND NETOPIA, INC.

CASE NO. : C 04-3364 RMW (PVT)

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redacted or withheld from Plaintiffs .9 Kadish also testified before the SEC concerning his

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communications with Lefkof and others within Netopia concerning the circumstances underlying

this litigation. "

In addition to voluntarily disclosing Kadish's communications to the SEC, the Netopi a

Defendants have waived any purported attorney-client privilege by disclosing those communications

to Plaintiffs. "[V]oluntary disclosure of the content of a privileged attorney communication" to an

adverse party "constitutes waiver of the privilege as to all other such communications on the same

subject ." Weil, 647 F.2d at 24; Atari Corp. v. Sega ofAmerica, 161 F.R.D. 417,420 (N.D. Cal .

1994) (plaintiff entitled to "all matters related to" privileged communication that voluntarily

provided to plaintiff because "voluntary disclosure to an adverse party" waives the privilege) . Here,

the Netopia Defendants have voluntarily produced the Lefkof Transcript to Plaintiffs, as well as

other documents which specifically disclose other communications between Kadish and others at

Netopia (including Lefkof) concerning the circumstances underlying this litigation . See, e .g., Klein

Decl ., Exs. M (NET 04607); N (NET 04608)). Because the foregoing disclosures "constitute[]

waiver of the privilege as to all other such communications on the same subject" (Weil, 647 F.2d at

24), any purported attorney-client privilege has been waived and does not shield the Contested

Documents from production.

9 For example, the documents labeled Bates no . 24-25, 5067-68, 5069-70, and 8457 in the

Redaction Log appear respectively to be Exhibit Nos . 53, 81, 77 and 79 in the Lefkof Transcript

(Lefkof Tr. at 205, 540, 500 and 509) . Similarly, the June 18, 2004 e-mail from Kadish to Lefkoflisted on page 2 of the Privilege Log appears to be Exhibit 89 from the Lefkof Transcript (at 599) .

Unfortunately, the Netopia Defendants employed a different Bates numbering system for theirproductions to the SEC and to Plaintiffs, and the Netopia Defendants have refused Plaintiffs'request that they produce the documents to Plaintiffs in the same form as they were produced to the

SEC. Accordingly, it is impossible to conclusively match up many of the documents discussed inthe Lefkof Transcript with those in the Redaction and Privilege Logs .

'o During the "meet and confer" process, Defendants offered to produce a redacted copy of

Kadish's SEC transcript, with all testimony concerning purportedly privileged communications

about the circumstances underlying this litigation redacted only if Plaintiffs would accept all of the

Netopia Defendants' attorney-client privilege and "work product" assertions in their Redaction and

Privilege Logs . Klein Decl ., Ex. L. Plaintiffs were unwilling to accept the terms imposed by the

Netopia Defendants .


DEFENDANTS ALAN B. LEFKOF, DAVID A. KADISH, AND NETOPIA, INC .

CASE NO. : C 04-3364 RMW (PVT )IXFil"erver%shareddocs%BLGXNETOPIAIPLD-WPDWPA re Mx to Compel Production of Doc tnerd.WPd


2

2. Defendants Have Waived Their Purported Attorney-Client Privilege ByPlacing Their Knowledge "At Issue" In This Litigation

The Netopia Defendants have also waived any purported attorney-client privilege wit h

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regard to the Contested Documents because they have affirmatively put their knowledge "at issue"

in this litigation (also known as an "implied" waiver) . When a party asserts a claim or defense that

specifically places their knowledge of facts "at issue" in a litigation, that party is barred from using

the attorney-client privilege to conceal communications that would tend to prove or disprove their

knowledge of the facts "at issue." United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999)

(party waives attorney-client privilege when it "puts the privileged information at issue" by an

"affirmative act," such as a claim or affirmative defense) ; Cox v. Adm 'r US Steel & Carnegie, 17

F.3d 1386, 1418-19 (11' Cir. 1994) (same). Accordingly, where a party asserts an affirmative

defense the truth of which must be assessed by the examination of communications with lawyers,

that party has waived the privilege. Hearn v. Rhay, 68 F.R.D. 574, 582 (E.D. Wash. 1975) (where

"the content of defendant's communications with their attorney" is "inextricably merged" wit h

"defendant's affirmative defense[, t]hese communications are not incidental to the case ; they inhere

to the controversy itself, and to deny access to them would preclude the court from a fair and jus t

determination of the issues")

Here, Leikof and Kadish have asserted affirmative defenses that are dependent upon the m

proving that they did not know that ICC did not have an unconditional obligation to purchase

Netopia's products (i.e., that ICC's obligation to pay Netopia was "contingent") . See, e.g. ,

Defendants Netopia, Lefkof and Kadish's Answer to the Complaint (Doc. 120-1), Affirmative

Defense Nos. 20 ("Mr. Lefkof and Mr. Kadish did not know, and in the exercise of reasonable care

could not have known, of any of the alleged misrepresentations), 17 (Defendants acted without

scienter); 14 (Defendants relied on statements of others), 22 (Defendants relied upon "work,

opinions, information, representations and advice of others") . Indeed, the Netopia Defendants have

repeatedly argued that they are not liable in this litigation because other Netopia employees knew

the true terms of the transaction between ICC and Netopia, and these other Netopia employees

concealed the true terms from the Netopia Defendants . See, e.g., Defendants Netopia, Lefkof and

8MEMORANDUM

OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM


CASE NO. : C 04-3364 RMW (PVT)OFleserveAshareddoesV3LGWETOPIAIPLD-WPDWPA re Mx to Compel Production of Document .WPd


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Kadish's Motion to Dismiss (Doc . 82) at 5-6; Kadish's Response to Plaintiffs First Set of

Interrogatories (Klein Decl ., Ex. 0) (Kadish relied upon, inter alia, Peter Frankl, Thomas Skoulis,

and William Baker); Lefkof's Response to Plaintiff's First Set of Interrogatories (Klein Decl ., Ex. P)

(Lefkof relied upon, inter alia, Peter Frankl, Thomas Skoulis, and William Baker) . By making their

defenses dependent upon proving that they did not know the actual terms of Netopia's "contingent"

transaction with ICC, the Netopia Defendants have put their knowledge "at issue" in this litigation.

Kadish and Lefkof cannot use their purported ignorance as a "sword" to establish their affirmative

defenses, while at the same time using the attorney-client privilege as a "shield" to conceal the

documents the could disprove that defense . See Cox, 17 F.3d at 1418-19 (because "the attorney-

client privilege was intended as a shield, not a sword" defendant waived privilege by not just

denying intent but affirmatively asserting its good faith, thereby "inject[ing] the issue of its

knowledge" into the case).

3. The Attorney-Client Privilege Is Inapplicable Because Kadish DirectlyParticipated In The Securities Fraud Relating To ICC

The Netopia Defendants are also prohibited from using the attorney-client privilege becaus e

Kadish personally participated in the securities fraud arising from Netopia's misrepresentation of

Netopia's financial results attributable to Netopia 's bogus transaction with ICC. Pursuant to the

well-established "crime-fraud" exception to the attorney-client privilege, "communications in

furtherance of an ongoing or future crime or fraud are not protected ." In re Napster, Inc. Copyright

Litig., 235 F.R.D. 463, 467 (N.D. Cal . 2006) (emphasis added) ; see Gomez v. Vernon, 255 F .3d

1118, 1131, n. 7 (9o' Cir . 2001). Although "the crime-fraud exception may apply "even though the

attorney is unaware of the crime and takes no affirmative step that actually furthers it" (Grassmueck

v. Ogden Murphy Wallace P.L.L.C., 213 F.R.D. 567, 572-73 (W.D. Wash. 2003)), the justifications

for applying the exception are even more pronounced "when the attorney knowingly participates in a

guilty client's ongoing fraud or crime" because "[i]n those rare instances, none . of the public policies

advanced in support of the privilege would be served" (In re Bonham, No. F95-00897-HAR, 1998

WL 460279, at *7 (Bkrtcy.D.Alaska July 28, 1998) .

9MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO COMPEL PRODUCTION

OF DOCUMENTS FROM

DEFENDANTS ALAN B. LEFKOF, DAVID A KADISH, AND NETOPIA, INC .

CASE NO .: C 043364 RMW (PVT)%Tileserver%shereddoas%BLG%NETOPIA~PLD-WPD%MPA re Mx to Compel Production of Doctanern .wpd


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Here, Plaintiffs have uncovered extensive evidence that Kadish knowingly participated in

the securities fraud arising out of the bogus ICC transaction. One former Netopia employee (Pete r

Frankl) testified before the SEC that Kadish personally drafted the ICC purchase order . See Frankl

Tr. (attached to the Klein Decl . as Exhibit Q) at 114-20, 124-26 . Indeed, the Netopia Defendants

admit in their Answer to the Complaint that Kadish "prepared a form of purchase order" for the ICC

Philadelphia transaction. See Defendants Netopia, Lefkof and Kadish's Answer to the Complaint

(Doc. 120-1), ¶ 25; Klein Decl ., Ex. R (NET 4351-52) (e-mail from Kadish to Frankl, Skoulis and

Lefkof attaching "form of the PO" to be used) . Mr. Frankl further testified that Kadish was fully

aware that ICC did not have an unconditional obligation to pay Netopia when Kadish drafted the

ICC purchase order, and tolf Frankl that - contrary to Netopia's own policy - there would not b e

any payment erms listed on the ICC Purchase Order. See Klein Decl ., Ex. Q (Frankl Decl.) At 117-

20, 124-26. In addition, Mr. Frankl testified that, in April 2004, Kadish ordered that Frankl omit

any reference to the contingent nature of the ICC purchase order from Frankl's collections

correspondence with ICC . Id. at 280-81 .'' The Complaint describes in great detail the efforts of

Kadish in April 2004 to cover-up Netopia's prior misrepresentations concerning the ICC

transaction. ¶ 47. And, as discussed above, the Complaint specifically describes Kadish's "insider

trading" through enormous sales of Netopia stock at inflated prices . ¶ 76. Finally, as discussed

above, the Court has sustained Plaintiffs' claims against Kadish under Section 20(a) of the 193 4

Act .

Because these circumstances give rise to "reasonable cause to believe that [Kadish's ]

services were utilized in furtherance of the ongoing unlawful scheme," the Court should orde r

production of the Contested Documents . Napster, 235 F.R.D. at 467, 471 (under the "crime-fraud"

exception, the attorney-client privilege does not apply to any document where there is "some

" Tom Deckard, a Netopia salesman who also worked on the ICC account and who

reported to Frankl, confirmed Frankl's testimony concerning Kadish's involvement in his own

testimony before the SEC. See Deckard Tr. (attached to the Klein Decl . as Exhibit S) at 76-78 . As

noted above, the Court has already sustained Plaintiff s "control person" claims against Kadish. See

December Order at 11 .1 0


DEFENDANTS ALAN B. LEFKOF, DAVID A KADISH, AND NETOPIA, INC.

CASE NO.: C 04-3364 RMW (PVT)%IFilese -fthareddoos%BLG NETOPIA%PLD-WPDWtPA re Mu to Compel Production of Document .wpd


1 relationship between the communications and the illegality") (emphasis added) ; see United States v.

2 Laurins, 857 F.2d 529, 540 (9`h Cir . 1988) . 1 2

3 B. The "Work Product" Doctrine Does Not Apply To The Contested Documents

4 The Netopia Defendants are also barred from withholding the Contested Documents a s

5 "work product." As the Ninth Circuit has recognized, the "work product" doctrine "protect[s] from

6 discovery documents and tangible things prepared by a party or his representative in anticipation of

7 litigation ." Admiral Ins. Co. v. US. Dist. Ct. for Dist. ofAriz., 881 F.2d 1486, 1494 (9th Cir. 1989)

8 (emphasis added); US. v. Fernandez, 231 F.3d 1240, 1247 (911 Cir. 2000) (the "primary purpose" of

9 the "work product" privilege to "prevent exploitation of a party's efforts inpreparing for

10 litigation") (emphasis added). "The party claiming the work-product privilege bears the burden of

11 establishing that documents claimed as work product were prepared in anticipation of litigation ."

12 Kintera, Inc. V. Convio, Inc., 219 F.R.D. 503, 507 (S .D. Cal. 2003) . Even where the work-product

13 privilege applies, it is not an absolute bar to disclosure of the facts learned or uncovered by an

14 attorney. Rather, it is a "qualified immunity" that may be overcome "upon an adverse party's

15 demonstration of substantial need or inability to obtain the equivalent without undue hardship ."

16 Admiral Ins. Co., 881 F.2d at 1494; Fed. R. Civ. P. 26(b)(3) .

17 Here, the Netopia Defendants have never asserted that the vast majority of the Conteste d

18 Documents were prepared in anticipation of litigation . The Netopia Defendants baldly invoke the

19 "work product" doctrine in the "Privilege Claim" box for each Contested Document in th e

20 Redaction and Privilege Logs. See Klein Decl ., Ex. A, B. However, in the "Privilege Description"

21 box - where the Netopia Defendants are supposed to provide facts justifying their claim - th e

22 Netopia Defendants only assert that fourteen of those documents (all of which are in the Privilege

23 Log) actually were "generated in anticipated of litigation ." Compare Klein Decl., Ex. B at 1-2 with

24 remainder of Exs. A and B . Accordingly, the Netopia Defendants have not even attempted to

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2612 At a minimum, Plaintiffs respectfully submits that they have made an adequate showing

27 to warrant an in camera review of the Contested Documents so that the Court may determin e

28 whether the "crime-fraud" exception applies . Napster, 235 F.R.D. at 471 ("The required showing

for in camera review is less than that for vitiation of the privilege") .1 1



CASE NO.: C 04-3364 RMW (PVT)UFileserverLShareddo[s1BLGWETOPIAIPLD-WPDVNPA re Mx to Compel Production of DonlmeM- Pd


provide a factual basis for their conclusory assertions of the "work product" doctrine for the vas t

2 majority of the Contested Documents .

Moreover, the "work product" doctrine does not shield even the fourteen documents that th e

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Netopia Defendants claim were generated in anticipation of litigation . Twelve of the documents

relate to an internal investigation conducted by Netopia's Audit Committee beginning in July 2004

(the "Internal Investigation") . See Klein Decl., Ex. B at 1-2. The "work product" doctrine does not

apply to the Internal Investigation documents because the available facts do not infer that the

Internal Investigation was conducted in anticipation of litigation . For example, the Internal

Investigation was begun in July 2004 - before any litigation had commenced - and was purportedly

started in order to examine various accounting matters (i.e., whether Netopia had used proper

accounting for its transactions with ICC) .and employee conduct with respect to ICC (resulting in the

firing of several Netopia employees, including Skoulis) . ¶¶ 49-51 . Moreover, even if the "work

product" doctrine did apply, the Netopia Defendants have waived its protections by putting their

knowledge of the true terms of the ICC transactions "at issue" in this litigation ." As a result, the

Netopia Defendants are not entitled to withhold the internal Investigation documents from Plaintiffs

pursuant to the "work product" doctrine . 1 4

13 The protections of the "work product" doctrine generally may be waived in the same

manner as the attorney-client privilege . See Tennison v. City & County of San Francisco, 226

F.R.D. 615, 621 (N .D. Cal . 2005) ("waiver of attorney-client [privilege] applies equally to the

"work product" privilege, a complementary rule that protects many of the same interests") (internal

citations and quotation marks omitted) ; In re Syncor ERISA Litig., 229 F.R.D. 636, 645 n .8 (C.D.

Cal. 2005) (although not entirely identical, "the standard for determining waiver of the attorney-client privilege and the work product [doctrine] are essentially the same") . Compare McKesson,

2005 WL 934331 (Whyte, J .) . Although the McKesson court held that the attorney-client privilege

had been waived through disclosure to the SEC, it also ruled that the disclosure of the defendant's

internal investigation report to the SEC did not effect a waiver of the "work product" doctrinebecause the defendant entered into a detailed confidentiality agreement with the SEC before it

prepared the report. Id. at * 1-2, 9 . By contrast, the Contested Documents were not prepared for the

SEC and the Netopia Defendants have never asserted that the Contested Documents were produced

to the SEC pursuant to a confidentiality agreement .

14 For the same reasons, the "work product" doctrine does not apply, or has been waived,with regard to the remaining two documents that the Netopia Defendants assert were prepared in

anticipation of litigation: an e-mail from Baker to Kadish (Klein Decl ., Ex. B at 2) and an e-mail


DEFENDANTS ALAN B. LEFKOF , DAVID A. KADISH, AND NETOPIA, INC .

CASE NO.: C 04-3364 RMW (PVT)UFileservertshareddocs%BLGWETOPIAIPLD -WPDWPA re Mx to Compel Production of DowrnentWPdd


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C. The Netopia Defendants Should Not Be Allowed To Use Any DocumentsWithheld From Plaintiffs In This Litigation

Should the Court allow the Netopia Defendants to withhold any of the Contested Document s

from review by Plaintiffs, Plaintiffs respectfully request that the Court enter an order barring the

Netopia Defendants from using those documents for any purpose in this litigation . For example, the

Netopia Defendants may attempt to use information obtained as part of the Internal Investigation as

part of their defense of this litigation at trial . It would be unfair and improper to allow the Netopia

Defendants to use the attorney-client privilege or the "work product" doctrine to "shield" the

Contested Documents from disclosure, while at the same time using those documents as a "sword"

against Plaintiffs' claims .

IV. CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully request that the Court orde r

Defendants to produce the Contested Documents .

Dated : October 17, 2006 Andrew M. SchatzJeffrey S. NobelSeth R. KleinSCHATZ & NOBEL, P .C.

By: /S/ SETH R. KLEINSeth R. Klein (Pro Hac Vice Application FiledConcurrently Herewith)One Corporate Center20 Church Street, Suite 1700Hartford, Connecticut 06103Tel: (860) 493-6292Fax: (860) 493-6290

Lead Counsel for Lead Plaintiffs

from a member of Netopia's audit committee (Howard Slayen) to Netopia's KPMG auditor

(Jonathan Guthart) (Klein Decl ., Ex. B at 3) .13


DEFENDANTS ALAN B. LEFKOF. DAVID A. KADISH, AND NETOPIA, INC.

CASE NO.: C 04-3364 RMW (PVT)UFileserverWiareddocsXBLGWETOPIA%PLD-WPDIMPA re Mx to Compel Production of Document.wpd

5:04-cv-03364-RMW Document 147 Filed 10/17/2006 of 22

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Michael D. BraunBRAUN LAW GROUP, P .C .12400 Wilshire Blvd ., Suite 920Los Angeles, CA 90025Tel: (310) 442-7755Fax: (310) 442-7756

Liaison Counsel for Lead Plaintiffs

Reed R. KathreinJames W. OliverLERACH COUGHLIN STOIA GELLER

RUDMAN & ROBBINS LLP100 Pine Street , Suite 2600San Francisco , CA 94111Tel: (415 ) 288-4545Fax : (415) 288-4534

Additional Counsel for Plaintiffs

14MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM

DEFENDANTS ALAN B. LEFKOF, DAVID A. KADISH, AND NETOPIA, INC .

CASE NO.: C 04-3364 RMW (PVT)\1Faeserveftharedaocs%BLGWETOPIAIPLD-WPDIMPA re Mx to Compel Production of Documentwpd


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SIGNATURE ATTESTATION

I, Michael D . Braun, hereby attest that I have on file all holograph signatures for any

signatures indicated by a "conformed" signature (/S/) within this e-filed document.

Executed this 17th day of October, 2006 .

IS/ MICHAEL D . BRAUNMichael D . Braun

1 5

11


DEFENDANTS ALAN S . LEFKOF, DAVID A. KADISH, AND NETOPIA, INC.

CASE NO.: C 04-3364 RMW (PVT)pFile er%shareddo=%BLG\NETOPIAWLD-WPDWIPA re Mz to Compel Production of Document

.wpd


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PROOF OF SERVIC E

STATE OF CALIFORNIA ))ss . :

COUNTY OF LOS ANGELES )

I am employed in the county of Los Angeles, State of California, I am over the age of 18 andnot a party to the within action; my business address is 12400 Wilshire Boulevard, Suite 920, LosAngeles, CA 90025 .

On October 17, 2006, using the Northern District of California's Electronic Case FilingSystem, with the ECF ID registered to Michael D . Braun, I filed and served the document(s)described as :

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS'MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM DEFENDANTS ALA N

B. LEFKOF, DAVID A. KADISH, AND NETOPIA, INC .

The ECF System is designed to automatically generate an e-mail message to all parties in thecase, which constitutes service . According to the ECF/PACER system, for this case, the partiesserved are as follows :

Andrew M. Schatz, Esq .

Jeffrey S. Nobel, Esq .

Patrice L. Bishop, Esq .

Timothy J. Burke, Esq.

Howard S . Caro, Esq .

Darren J. Check, Esq .

Patrick J. Coughlin, Esq .

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]@hellerehrman.com

dcheck@sbclasslaw .com

patc@mwbhl .come file [email protected] [email protected]

Robert S. Green, Esq.

Sean M. Handler, Esq.

William S . Lerach, Esq .

Stanley S. Mallison, Esq .

Tricia L. McCormick, Esq.

Attorneys for Plaintiffs

cand.uscourts@classcounsel .com

[email protected]@sbclasslaw.com

[email protected]

[email protected] file [email protected] file [email protected]

[email protected] file [email protected] file_sf@lerachlaw .com

1 6MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM


CASE NO.: C 043364 RMW (PVT)NFileserm%shareddoesl6LGWETOPIA\PLD-WPDWIPA re Mx to Compel Production of DocunenLwpd

se 5:04-cv-03364-RMW Document 147 Filed 10/17/2006 of 22

Sara B. Brody, Esq. [email protected]

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Susan D. Resley, Esq .

Richard Marmaro, Esq .

Robert J . Herrington, Esq .

Attorneys for Defendants

[email protected]

[email protected]

rherring@skadden .com

On October 17, 2006, I served the document(s) described as :

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS'MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM DEFENDANTS ALA N

B. LEFKOF, DAVID A. KADISH, AND NETOPIA, INC .

by placing a true copy(ies) thereof enclosed in a sealed envelope(s) addressed as follows :

Jules Brody, Esq.Aaron Brody, Esq.Tzivia Brody, Esq .STULL, STULL & BRODY6 East 45th StreetNew York, NY 10017Tel.: (212) 687-7230Fax: (212) 490-2022

Marc A. Topaz, Esq.Richard A. Maniskas , Esq.Tamara Skvirky, Esq.SCHIFFRIN & BARROWAY280 King of PrussiaRadnor, PA 19087Tel: (610) 667-7706Fax: (610) 667-7056

Attorneys for Plaintiffs

I served the above document(s) as follows :

BY MAIL. I am familiar with the firm's practice of collection and processingcorrespondence for mailing . Under that practice it would be deposited with U .S. postal service onthat same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of

business . I am aware that on motion of the party served, service is presumed invalid if postalcancellation date or postage meter date is more than one day after date of deposit for mailing in an

affidavit.

I further declare, pursuant to Civil L .R. 23-2, that on the date hereof I served a copy of theabove-listed document(s) on the Securities Class Action Clearinghouse by electronic mail throughthe following electronic mail address provided by the Securities Class Action Clearinghouse :

scaca 1aw.stanford.edu

I further declare that I am employed in the office of a member of the bar of this Court at

whose direction the service was made .



CASE NO. : C 04.3364 RMW (PVT)%%FiWswveAdmeddocs\BLG%NETOPRAWLD-WPDWPA re Mx to Compel Production of Document .-Pd


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I further declare under penalty of perjury under the laws of the United States that the aboveis true and correct.

Executed, on October 17, 2006, at Los Angeles, California 90025 .

/S/ LEITZA MOLINARLeitza Molinar



CASE NO.: C 04-3364 RMW (PVT)OFileserveristmredtlorstBLGWETOPIAIPLD-WPDWIPA re Mx to Compel Production of Dowment.wpd

CAND-ECF

Other Supporting Documents5:04-cv-03364-RMW Serafimov v . Netopia, Inc. et a l

U.S. District Court

California Northern Distric t

Notice of Electronic Filing

Page 1 of 3

The following transaction was received from Braun, Michael David entered on 10/17/2006 at 2 :01 PMand filed on 10/17/200 6Case Name: Serafimov v. Netopia, Inc . et alCase Number: 5 :04-cv-3364Filer: Levy GroupDocument Number: 147

Docket Text :MEMORANDUM in Support re [146] MOTION to Compel PRODUCTION OF DOCUMENTS FROMDEFENDANTS ALAN B. LEFKOF, DAVID A. KADISH, AND NETOPIA, INC. filed byLevy Group .(Related document (s)[146]) (Braun, Michael) (Filed on 10 /17/2006)

The following document(s) are associated with this transaction :

Document description : Main DocumentOriginal filename:X :\NETOPIA\MPA.pdfElectronic document Stamp :[STAMP CANDStamp_ID=977336130 [Date= 10/17/2006] [FileNumber=2962012-0][7e2ae8f3d9985adebb5edfl821 d6b64c48d7736828102346409b1 c72b8c3623a3f4d52feff7l8072626be958460c341097608dc4ffeaad1a47e1380c28822e9c] ]

5:04-cv-3364 Notice will be electronically mailed to :

Patrice L. Bishop [email protected]

Michael David Braun [email protected]

Sara B. Brody [email protected], terri .newman@hellerehrman .com;Cecilia.Chan@hellerehrman .com; Gary .Padilla@hellerehrman .com

Walter F . Brown wbrown@orrick .com, awills@orrick .com

Timothy J. Burke [email protected]

Howard S. Caro [email protected], gary .padilla@hellerehrman .com

Patrick J . Coughlin [email protected], [email protected]

Marc Lawrence Godino mgodino@,glancylaw .com

httns://ecf.cand.uscourts .aov/cai-bin/Disnatch.pl?199131032470608 10/17/2006

CAND-ECF Page 2 of3

Robert S. Green [email protected]

Robert James Herrington [email protected], [email protected]; [email protected]

William S. Lerach e_file_sd@lerachlaw .com

Michael Ethan Liftik michael .liftik@hellerehrman .com

Stanley S. Mallison [email protected], stanmallison@yahoo .com

Richard Marmaro rmarmaro@skadden .com, [email protected]; [email protected] ;[email protected]

Tricia Lynn McCormick [email protected], e_file_sd@lerachlaw .com;e [email protected]

Jeffrey S. Nobel [email protected]

Susan D. Resley [email protected], [email protected]

Andrew M. Schatz firm@snlaw .net

Theresa Ann Sutton tsutton@orrick .com, aako-nai@orrick .com; [email protected]

5:04-cv-3364 Notice will be delivered by other means to:

Aaron L. BrodyStull, Stull & Brody6 East 45th S treetNew York, NY 1001 7

Jules BrodyStull Stull & Brody6 East 45th StreetNew York, NY 1001 7

Tzivia BrodyStull Stull & Brody6 East 45th StreetNew York, NY 1001 7

Richard A. ManiskasSchiffrin & Barroway, LLP280 King of Prussia RoadRadnor , PA 19087

Darren J. RobbinsLerach Coughlin Stoia Geller Rudman & Robbins LLP655 West BroadwaySuite 1900

httns : //ecf_cand . uscourts . izov/cei-bin /Disvatch.PPl?199131032470608 10/17/2006

CAND-ECF

San Diego , CA 9210 1

Tamara SkvirskySchiffrin & Barroway LLP280 King of Prussia RoadRadnor, PA 1908 7

Marc A. TopazSchiffrin & Barroway. LLP280 King of Prussia RoadRadnor, PA 19087

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httns ://ecf.cand.uscourts .aov/cLyi-bin/Dispatch .p1?199131032470608 10/17/2006