Attorney Ordered to Identify Dead Client Who Taunted James W

[admin]

James Woods vs. John Doe: Reply in Support of Motion for An Order Compelling Non-Party Kenneth P. White to Answer Deposition Questions and Produce Documents; and an Order for Sanctions Against Non-Party Kenneth P. White in the Amount of $9,040.55
by James Woods
December 21, 2016

MICHAEL E. WEINSTEN (BAR NO. 155680)
LINDSAY MOLNAR, ESQ (BAR NO. 272156)
LAVELY & SINGER
PROFESSIONAL CORPORATION
2049 Century Park East, Suite 2400
Los Angeles, California 90067-2906
Telephone: (310) 556-3501
Facsimile: (310) 556-3615
Email: mweinsten@lavelysinger.com
lmolnar@lavelysinger.com

Attorneys for Plaintiff JAMES WOODS

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES

JAMES WOODS, an individual,
Plaintiff,
vs.
JOHN DOE a/k/a "Abe List" and DOES 2
through 10, inclusive,
Defendants.

Case No.: BC 589746

[Hon. Mel Recana, Dept. 45]

REPLY IN SUPPORT OF MOTION FOR: (1) AN ORDER COMPELLING NON-PARTY KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE DOCUMENTS; AND (2) AN ORDER FOR SANCTIONS AGAINST NON-PARTY KENNETH P. WHITE IN THE AMOUNT OF $9,040.55

Date: January 3, 2017
Time: 8:35 a.m.
Dept: 45

Reservation ID: 161109172908

Complaint Filed: July 29, 2015
Trial Date: None

I. INTRODUCTION

At the outset, White's [1] Opposition to Woods' Motion not only lacks merit under California law, but actually demonstrates precisely why White must be ordered to disclose the information at issue concerning the identity of his client, AL. Most significantly, White actually admits in his Opposition that the reason he seeks to protect AL's identity is because "[r]evealing his identity would subject [AL] to civil liability by revealing that he was the one who posted the tweet that [Woods] sued over." See Opposition at 8: 1 7-19. In other words, White is taking the position that AL should be allowed to remain anonymous in order to avoid liability for Woods' claims in this action - claims that this Court has already acknowledged (in denying AL's anti-SLAPP motion) have a likelihood of success. Obviously, a party to a lawsuit cannot remain anonymous simply to avoid liability in that lawsuit. [2] If such was the case, then potential defamers would be encouraged and granted free license to make malicious and defamatory statements under the guise of anonymity, knowing that litigation against them would be an illusory and ineffective exercise. By taking such an outrageous and absurd position in support of withholding AL's identity, White has demonstrated the true impropriety of his intent here -- an impropriety that taints the credibility of White's entire Opposition.

The impropriety of White's intent is further evidenced by his deceptive attempt to mischaracterize the record in this case -- including with respect to alleged "harassment" by Woods. For example, while White boldly accuses Woods' counsel of a purported intent to publicly release his deposition video (Opposition at 6:6-10), he provides no evidence to support this accusation. To the contrary, White's own cited deposition excerpts merely reflect that Woods' counsel was not prepared to agree at his deposition to a confidentiality stipulation, but was open to discussing the issue further, including through the entry of a protective order. See Depo at 45:1-46:3. Similarly, despite White's incendiary contention that Woods' "aim" is to harass AL's relatives (Opposition at 2:16-20), he provides no evidence whatsoever to suggest that Woods ever expressed any animus towards those relatives. Moreover, while White spends significant portions of his Opposition attempting to portray Woods as the aggressor in this case, the simple fact remains that White's own client, AL, was the party who initiated this dispute by posting a series of malicious tweets about Woods on Twitter -- referring to Woods on as a "joke," a "clown-boy," "ridiculous," and "scum" -- culminating in AL's false and defamatory statement that Woods was a "cocaine addict." [3] White's deceptive tactics should not be countenanced by the Court.

It further bears noting that, despite premising his entire Opposition on the notion that AL is deceased, White has still failed to set forth any admissible evidence actually supporting this "fact." Without such evidence, how is Woods (or the Court, for that matter) to even know that AL has not lied about his own death - especially given AL's documented propensity for lying? Indeed, White himself admits in his declaration that "most of the information" in AL's twitter profile was completely ''fictional.'' See White Declaration, Para 5. Moreover, White previously admitted in his deposition that he never even saw AL's alleged death certificate. See Depo at 16:13-15 ("I have not reviewed a death certificate of Abe List."). In light of such admissions by White, it is all the more critical that Woods obtain proof of AL's identity.

As set forth in detail below, White has effectively conceded in his Opposition (including through his own cited cases) that neither the attorney client privilege nor the right of privacy allows him to withhold the critically relevant identifying information about AL that Woods seeks. Indeed, even if the attorney-client privilege did apply, it would have been waived long ago by AL when he authorized White to disclose a significant part of his communications concerning his identity. Moreover, to the extent that White claims Woods intends to harass AL's relatives, White has failed to provide any evidence supporting this claim (and the evidence that he does provide actually cuts against any notion of harassment).

Accordingly, in the absence of any cognizable counter-arguments by White, there is no reason why the Court should not compel White to answer the deposition questions set forth in Woods' Separate Statement, as well as produce the documents responsive to Woods' Subpoena. Moreover, based on the untenable and outlandish positions taken by White in his Opposition (which plainly show that White did not act with "substantial justification" in refusing to answer the discovery at issue), there is no reason why the Court should not award monetary sanctions against White and in favor of Woods in the sum of $9,040.55.

II. WHITE HAS EFFECTIVELY ADMITTED THAT AL'S IDENTIFYING INFORMATION IS NOT PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE.

In his Motion, Woods clearly demonstrated that the facts concerning AL's identity (such as AL's name, age, and the identity of his personal representative) are not and cannot be attorney-client privileged. Indeed, not only are these facts, not communications, but there is nothing confidential about them (given that AL's identity is known by many people outside the scope of any attorney-client relationship).

In his Opposition, White effectively admits that AL's identifying information does not fall within the purview of the attorney-client privilege. Most notably, while White primarily cites to and discusses the Willis v. Superior Court case, that case actually held that the names of the attorney's clients at issue were discoverable because (as is the case here) such information was "directly relevant to the issues in dispute." 112 Cal.App.3d 277,294 (1980). The parties in that case (both attorneys) were each claiming that they had stolen one another's clients, and thus the court found that the identification of those clients was a necessary component of proving the claims. Here, similarly, AL' s identity is critical and relevant to Woods' ability to investigate and gather information to prosecute his claims against AL. Indeed, in light of the fact that White has refused to provide any evidence corroborating his claim that AL is deceased, the disclosure of AL's identity is necessary in order for Woods to confirm whether AL actually died. Thus, the Willis case -- White's primary authority in on the issue of attorney-client privilege -- actually supports Woods' position.

Moreover, to the extent that White attempts to avail himself of the extremely limited exceptions to the general rule that client identities are not privileged, his argument is, quite frankly, absurd. In particular, the thrust of White's argument on this point is that he should be allowed to withhold AL's identity simply because "revealing [AL's] identity would subject [AL] to civil liability by revealing that he was the one who posted the tweet that Mr. Woods sued over." See Opposition at 8:17-19. In other words, White is taking the outlandish position that he cannot reveal AL's name because the reveal would allow Woods to hold AL liable for the conduct alleged in Woods' complaint. Of course, if this was the law, then potential defamers would be encouraged and granted free license to make malicious and defamatory statements under the guise of anonymity, knowing that litigation against them would be an illusory exercise. Such a result would obviously run counter to both law and common sense. Indeed, it bears noting that none of White's cited authorities support his supposed position -- nor is Woods aware of even a single case where a court allowed an attorney of a party in litigation to withhold the identity of his client on privilege grounds. Rather, a client's identity may only be withheld in the limited circumstances where the disclosure would subject the client to harm separate and apart from any liability for the claims at issue in a pending lawsuit. See, e.g., Baird v. Koerner, 279 F.2d 623, 630 (1960) (disclosing the names of an attorney's clients -- who were not parties to the litigation -- would subject those clients to liability for unpaid taxes).

Notably, while White cites to the Mitchell v. Superior Court case in order to argue that the "facts" concerning AL's identity are in and of themselves privileged on account of being relayed to White during an attorney-client conversation, Mitchell does not stand for such a misguided proposition. Rather, Mitchell merely held that certain facts provided by an attorney to his client were considered privileged because they comprised the very legal advice that was provided by the attorney. See Mitchell, 37 Cal. 3d 591, 589-601 (1984). Here, in stark contrast, the identifying information at issue would have been provided by AL to White (not vice versa as was the case in Mitchell), and therefore could not constitute legal advice in and of itself. In other words, Mitchell is completely inapposite here.

In any event, even assuming that the facts concerning AL' s identifying information were initially privileged, that privilege was waived by AL when he authorized White to disclose "personal information about him" to Woods, including the material facts that: (1) "most of the information in the profile of his Twitter account [was] fictional," (2) he "was not married," (3) he "did not own a house in Los Angeles," (4) he "was not employed at the time the lawsuit was filed," (5) he "did not work in finance or math and was not a partner in private equity," and (6) he "did not have assets to satisfy Mr. Woods even if Mr. Woods won [this case]" See Opposition at 13:23-14:13; White Declaration, para. 5. AL's personal representative similarly waived the attorney-client privilege by authorizing White to disclose the material facts that: (1) "the estate would no longer defend the case," (2) "the estate lacked assets sufficient to satisfy any significant judgment," and (3) "that several of Mr. Woods' beliefs about [AL] (for instance, the belief he was married) were untrue and based on a fictional Twitter profile." White Declaration, para. 7. As a matter of law (and fairness), AL (and/or his personal representative) simply cannot turn the attorney-client privilege on and off to suit his particular needs. Rather, California law is clear that a party cannot disclose only those privileged facts beneficial to its case (in this instance, the facts that would support AL's purported inability to satisfy a judgment) and refuse to disclose, on the grounds of privilege, related facts detrimental to his position (in this instance, those facts that would allow Woods to obtain and collect a judgment against AL). See Merritt v. Superior Court, 9 Cal. App. 3d 721, 731 (1970) (when the privilege holder's "conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.") (citing to Wigmore on Evidence, McNaughton Revision, Volume VIII, section 2327); Kerns Construction Co. v. Superior Court, 266 Cal. App. 2d 405,414 (1968) (same). Fundamental to this analysis is the notion that a party should not be able to simply pick and choose which privilege communications it will disclose and which it will not. "He may elect to withhold or to disclose, but after a certain point his election must remain final." Merritt, supra, 9 Cal.App.3d at 731; see also Handgards, Inc. v. Johnson & Johnson, 413 F. Supp. 926, 929 (N.D. Cal. 1976) ("An important consideration in assessing the issue of waiver is fairness. Thus, a party may not insist on the protection of the attorney-client privilege for damaging communications while disclosing other selected communications because they are self-serving. Voluntary disclosure of part of a privileged communication is a waiver as to the remainder of the privileged communication about the same subject."); Weil v. Investment Indicators, 647 F. 2d 18, 24 (9th Cir. 1981) ("[I]t has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject."). In this case, by voluntarily allowing White to disclose a "significant part" of the communications concerning his identity, AL waived the privilege with respect to those communications. Cal. Evid. Code § 912 (a).

Finally, to the extent that White attempts to fault Woods for purportedly failing to ""exhaust[] other methods of discovering [AL's] identity," this argument is self-defeating in light of White's own admission that he opposed Woods' attempt to subpoena Twitter. See Opposition at 3:13-15, 8:27-28. Indeed, one of the very reasons that Twitter has refused to comply with the Subpoena is because of White's objection thereto. [4] As a matter of fairness, White cannot on the one hand oppose Woods' attempt to discover AL' s identity from third parties, and then on the other hand fault Woods for failing to obtain such third party discovery.

In sum, because White has failed to set forth any law or facts indicating that AL' s identifying information is within the scope of the attorney-client privilege, and because that privilege would have been waived in any event by AL, White has conceded Woods' point that the attorney-client privilege does prevent disclosure of the fundamental facts concerning AL' s identification.

III. WHITE HAS FURTHER CONCEDED THAT AL'S IDENTIFYING INFORMATION IS NOT PRIVATE INFORMATION.

As set forth in Woods' Motion, because the right of privacy does not survive death, and because White contends that AL is deceased, then (by White's own admission) AL no longer has any right to privacy. See Lugosi v. Universal Pictures, 25 Ca1.3d 813, 820, 833 (1979); Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59, 62 (1975); Flynn v. Higham, 149 Cal.App.3d 677 (1983). Moreover, because of the public interest in an open court system, including the public's right to know the identity of parties to a lawsuit, AL never even had the right to proceed anonymously in the first place. See Doe v. Kamehameha Schools etc., 596 F.3d 1036, 1042-43 (9th Cir. 2010); United States v. Doe, 655 F .2d 920, 922 (9th Cir. 1980). Thus, to the extent White objected to the disclosure of information concerning AL's identity on privacy grounds, such objections have no merit.

White does not effectively dispute this notion in his Opposition. To the contrary, he actually admits that the Court (in denying AL's anti-SLAPP motion) already "rejected" his privacy argument as it pertains to AL. Opposition at 11: 15-17.

Moreover, while White attempts to dispute that AL's right to privacy died with him, his only cited authorities are wholly inapposite and have no bearing whatsoever on the facts at bar. Opposition at 11-12. Indeed, White's reliance on McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) is actually deceptive, as the use of the term "anonymous" in that case had nothing to do with the plaintiffs identity as a litigant. To the contrary, the plaintiffs name, Margaret McIntyre, was disclosed from the inception of the case, and there was no argument that she was entitled to keep her identity as a litigant private. The only issue was whether she had the right, in the context of purely political speech, to distribute unsigned (i. e. "anonymous") political leaflets at school district meetings.

White's other cited authorities are similarly unsupportive of his position. For example, the court in Powell v. U.S. Dep't of Justice, 584 F. Supp. 1508, 1528 (N.D. Cal. 1984) actually found that the names of the deceased individuals should be disclosed. And the cases of National Archives & Records Administration v. Favish, 541 U.S. 157, 171 (2004) and Catsouras v. Dep't of California Highway Patrol, 181 Cal. App. 4th 856, 870 (2010) dealt with the completely distinguishable issue of whether family members have the right to prevent the disclosure of graphic photographs of their relative's death. Nevertheless, the court in Catsouras acknowledged that the right to privacy dies with an individual (but made a special exception in the limited and fact specific context of death photographs). Of course, Woods is not seeking to publish photos of AL's dead body.

Simply stated, and as evidenced by White's own admission and cited authorities, White cannot in good faith claim that the identity of AL is protected by the right of privacy. Thus, White has conceded Woods' point on this issue.

IV. WHITE HAS FAILED TO SHOW ANY COGNIZABLE HARASSMENT BY WOODS THAT WOULD MERIT THE WITHOLDING OF AL'S CRITICAL IDENTIFYING INFORMATION.

Regarding the issue of alleged harassment by Woods, White's entire argument effectively boils down to the misguided notion that simply because Woods rejected White's purported offer to "disclose AL' s identity in settlement discussions if Mr. Woods would agree to keep it confidential," and simply because Woods has made some strongly-worded tweets about AL, Woods must necessarily be seeking to harass AL and/or AL's relatives. See Opposition at 10:18-24. Like White's other arguments, this argument lacks merit and is actually nonsensical in the context of this case.

First and foremost, with respect to White's purported settlement offer, any offer to disclose AL's identity on a purely confidential basis and in exchange for a mutual release of claims (which is all that White offered to do) would be completely illusory in the context of this action. More specifically, the very reason that Woods needs AL's identifying information is so he can effectively prosecute his claims against AL. Thus, the mere receipt by Woods of AL's identifying information, without the ability to actually use that information to pursue this case, would be completely pointless. [5] As such, Woods cannot be faulted for declining to accept this offer, and his refusal is in no way indicative of an intent to harass.

Moreover, to the extent that White is pointing to certain of Woods' strongly-worded tweets as evidence of Woods' intent to harass, this argument actually cuts against White insofar as AL is the party whose vitriolic and harassing tweets gave rise to this action in the first place. As set forth in Woods' Complaint, AL previously engaged his thousands of Twitter followers with a campaign of harassing and angry tweets directed towards Woods, calling Woods such derogatory names as "prick," "joke," "ridiculous," "scum" and "clown-boy." See Complaint, para. 8. Indeed, evidence of AL' s malicious and harassing tweets was already placed before the Court in support of Woods' successful opposition to AL's anti-SLAPP motion. Accordingly, if Woods responded to AL's harassment by using strong language, such conduct was purely defensive and justified by AL' s defamation. Stated otherwise, Woods' tweets do not evidence any "harassment" that would allow White to withhold AL' s identity.

Finally, White has provided no evidence whatsoever to suggest that Woods intends to harass AL' s relatives, or that Woods intends to use the information at issue for any other purpose than to prosecute his claims in this lawsuit. Thus, his arguments in this respect are completely unsubstantiated.

V. CONCLUSION

For all the reasons set forth above and in Woods' Motion and Separate Statement, Woods respectfully requests that the Court issue an Order directing White to appear and answer the questions set forth in Woods' Separate Statement and to produce all documents specified in the Subpoena at 10:00 a.m. on January 5, 2017. Woods also respectfully requests that the Court award monetary sanctions against White and in favor of Woods in the sum of $9,040.55.

Dated: December 21, 2016

LAVELY & SINGER
PROFESSIONAL CORPORATION
MICHAEL E. WEINSTEN
LINDSAY MOLNAR
By: MICHAEL E. WEINSTEN
Attorneys for Plaintiff JAMES WOODS

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 2049 Century Park East, Suite 2400, Los Angeles, California 90067-2906.

On the date indicated below, I served the foregoing document described as:

REPLY IN SUPPORT OF MOTION FOR: (1) AN ORDER COMPELLING NONPARTY KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE DOCUMENTS; AND (2) AN ORDER FOR SANCTIONS AGAINST NONPARTY KENNETH P. WHITE IN THE AMOUNT OF $9,040.55

on the interested parties in this action by placing [ ] the original document OR [X] a true and correct copy thereof enclosed in sealed envelopes addressed as follows:

Kenneth P. White, Esq.
Brown White & Osborn LLP
11 333 S. Hope Street, 40th Floor
Los Angeles, CA 90071-1406
12 Email: kwhite@brownwhitelaw.com
Tel: (213) 613-9446
Attorneys for John Doe (@abelisted)

[X] BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that 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 postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

[] BY PERSONAL SERVICE:

[] I caused such envelope to be delivered by a messenger employed by Express Network.

[ ] I delivered said envelope(s) to the offices of the addressee(s), via hand delivery.

[ ] BY ELECTRONIC SERVICE: I transmitted the foregoing document by electronic mail to the email addresses) stated on the service list per agreement in accordance with Code of Civil Procedures section 1010.6.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed December 21, 2016, at Los Angeles, California.

N. Echesabal

_______________

Notes:

1 Unless otherwise indicated, capitalized terms used herein have the same definitions as in Woods Motion.

2 Indeed, Woods is not aware of a single case where a court has allowed an attorney of a party to a lawsuit to withhold the identity of his client on privilege grounds, nor has White cited any such case in his Opposition.

3 White's tactic from the inception of this case has been to make false personal attacks against Woods which have nothing to do with the issues at hand, but which are obviously calculated to draw the Court's ire. By way of example, White previously made the false claim that his client's defamatory tweet was in response to a "homophobic" tweet by Woods, when in fact there was nothing at all in Woods' tweet that was disparaging to the GLBTQ community.

4 Based on White's own admission that "most of the information" in AL's twitter profile was completely "fictional," it is not even clear whether Twitter would have AL's actual identifying information. See White Declaration, para. 5.

5 For example, even assuming arguendo that Woods accepted White's offer, and White then disclosed AL's name, how would Woods know that White was telling the truth? Because Woods would have had to release his claims, he would be prevented from taking any discovery to verify whether White's information was in fact accurate. Such an outcome would be completely backwards and absurd.

[admin]

Letter From Ryan T. Mrazik (Twitter Counsel) to Michael E. Weinsten (James Woods Counsel)
by Ryan T. Mrazik
August 21, 2015

PERKINSCOIE
1201 Third Avenue
Suite 4900
Seattle, WA 98101-3099
1.206.359.8000
1.206.359.9000
perkinscoie.com

Ryan T. Mrazik
RMrazik@perkinscoie.com
D. (206) 359-8098
F. (206) 359-9098

August 21, 2015

VIA EMAIL AND OVERNIGHT MAIL

Michael E. Weinsten
Evan N. Spiegel
Lavely & Singer, P.C.
2049 Century Park East, Suite 2400
Los Angeles, California 90067-2906
Email: mweinsten@lavelysinger.com; espiegel@lavelysinger.com

Re: Subpoena to Nonparty Twitter, Inc., James Woods v. John Doe a/k/a "Abe List", et al., Case #BC589746 (Superior Court of California, County of Los Angeles)

Dear Messrs. Weinsten and Spiegel:

We represent nonparty Twitter, Inc. ("Twitter") and write in response to your subpoena of August 4, 2015, seeking user identifying information and records, including the IP address, for a Twitter user account. For the reasons stated below, Twitter objects to your request. Please contact me directly to meet and confer if you disagree with any of our objections.

First, Twitter objects because you have provided no documentation showing that the Court considered and imposed the First Amendment safeguards required before a litigant may be permitted to unmask the identity of an anonymous speaker. As courts have recognized, a trial court must strike a balance "between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protects its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants." Dendrite Int'l, Inc. v. Doe No. 3,775 A.2d 756, 760 (N.J. Super. A.D. 2001). Accordingly, before a service provider such as Twitter may be compelled to unmask an anonymous speaker, (1) a reasonable attempt to notify the user of the request and the lawsuit must be made, and (2) the plaintiff must make a prima facie showing of the elements of defamation. See Krinsky v. Doe, 72 Cal. Rptr. 3d 231, 239, 244-46 (Cal. Ct. App. 2008). Moreover, under California law, the party seeking discovery must demonstrate "a compelling need for discovery" that "outweigh[s] the privacy right when these two competing interests are carefully balanced." Digital Music News LLC v. Superior court of Los Angeles, 226 Cal. App. 4th 216, 229 (2014) (citing Lantz v. Superior court, 28 Cal. App. 4th 1839, 1853-54 (1994).

It does not appear that you will be able to meet these standards. The speech at issue appears to be opinion and hyperbole rather than a statement of fact. Further, the target of the speech is a public figure who purposefully injects himself into public controversies, and there has been no showing of actual malice. Attempts to unmask anonymous online speakers in the absence of a prima facie defamation claim are improper and would chill the First Amendment rights of speakers who use Twitter's platform to express their thoughts and ideas instantly and publicly, without barriers.

Twitter next objects because the subpoena appears to constitute unauthorized early discovery under California law. CAL. CODE CIV. P. Section 2025.210(b). A defendant has not been served or appeared and it does not appear from the docket that the Court otherwise authorized early discovery. Please provide us with the rule or order that authorized issuance of the subpoena.

Further, all discovery requests must be calculated to lead to discovery of relevant and admissible evidence. CAL CODE CIV. P. Section 2017.010. Twitter therefore objects, for example, to your request for "[a]ny user records" and "all handle ... and associated user names ... used or otherwise associated at any time with the AbeListed Twitter Acct and/or its user(s)" as overly broad because it is unlimited in scope, and/or not related to an alleged injury or claim for recovery. See, e.g., Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388-89 (E.D. Mich. 2012) (denying request for content of online account and emphasizing that a litigant "does not have a generalized right to rummage at will through information that [another party] has limited from public view").

Twitter also objects to the subpoena because it is vague, overbroad, and unduly burdensome. For example, Twitter objects to the subpoena's requests for "[a]ny user records" or records "associated" with an account from "any time prior to the date of this request."

Finally, Twitter objects because your subpoena demands deposition testimony more than 75 miles from San Francisco or beyond the jurisdiction of the issuing court. See CAL CODE CIV. P. Section 2025.250(c)("[T]he deposition of [a non-party] shall be taken within 75 miles of the organization's principal executive or business office in California."); see also id. Section 2029.400 (Foreign subpoenas under the Interstate and International Depositions and Discovery Act must be personally served under the rules governing service of subpoenas in California actions.).

Twitter has provided notice to the email address associated with the Twitter account identified in your subpoena. Twitter understand that the user intends to challenge the subpoena and that Mr. Kenneth White of Brown, White & Osborn, LLP, will be contacting you soon. Twitter will take no further action until the user's objections are resolved by the Court. Even then, however, Twitter's objections would need to be addressed before Twitter produces any responsive records.

Please feel free to contact me if you would like to further discuss these objections. Twitter otherwise preserves and does not waive any other available objections or rights.

Very truly yours,

Ryan T. Mrazik

[admin]

Deposition Subpoena for Production of Business Records (To Twitter)
by James Woods
November 9, 2016

DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

To: Custodian of Records for Twitter, Inc.
1355 Market Street, Suite 900, San Francisco, CA 94103

JAMES WOODS v. JOHN DOE a/k/a "Abe List", et al.
Los Angeles Superior Court, Case No. BC589746

ATTACHMENT 3

DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS on Custodian of Records for TWITTER, INC.

I. Relevant Background and Reason for Information Request From Twitter:

On July 29, 2015, Plaintiff James Woods ("Woods") filed the above-entitled lawsuit which arose from the publication of a malicious and fabricated statement by an individual who hides behind the Twitter name "Abe List" and handle/user "@abelisted" ("AbeListed"). On July 15, 2015, AbeListed falsely accused actor James Woods of being a "cocaine addict" on the social media site Twitter, a message sent to thousands of AbeListed's followers and hundreds of thousands of Mr. Woods' followers. Woods is not now, nor has he ever been, a cocaine addict, and AbeListed had no reason to believe otherwise. AbeListed's reckless and malicious behavior, through the worldwide reach of the Internet, has now jeapardized Woods' good name and reputation on an international scale. The documents sought pursuant to this Subpoena are relevant and material to the trial of this case because Woods needs the documents in order to identify and prosecute his defamation and invasion of privacy claims against AbeListed.

II. The records to be produced pursuant to the Subpoena and this Attachment 3 are with reference to the following Twitter account and user profile ID:

1. twitter.com/abelisted
2. @abelisted
3. mobile.twitter.com/abelisted

Collectively referred to herein as the "AbeListed Twitter Acct."

III. The records to be produced pursuant to Subpoena and this Attachment "3" are as follows:

1. Account user information for the AbeListed Twitter Acct, including any documents or writings (the term "writings" in this request, and each subsequent request using the term, means as defined by California Evidence Code Section 250) evidencing the name, address, telephone number, e-mail address(es), IP address(es) and/or any other available contact and/or identifying information for the holder(s) of the AbeListed Twitter Acct, and/or associated with the AbeListed Twitter Acct, both concurrently and at any time prior to the date of this request.

2. Any user records, data and writings (or a copy of the information contained therein) which evidence and identify each IP address (including date and time of use of said IP address) associated with and/or used at any time by any person in relation to creating or modifying or posting to the AbeListed Twitter Acct.

3. Any user records, data and writings (or a copy of the information contained therein) which evidence and identify the IP address (including date and time of use of said IP address) used by the user who posted the Tweet/Comment "@RealJamesWoods @banshapiro cocaine addict James Woods still sniffing and spouting," dated July 15, 2015 7:40 AM, at URL http://twitter.com/abelisted/status/621328418861248512

4. A list of all handle (i.e., @names) and associated user names, in addition to the AbeListed handle, used or otherwise associated at any time with the AbeListed Twitter Acct and/or its user(s).

[admin]

How James Woods Became Obama’s Biggest Twitter Troll. Actor James Woods has had a long career in Hollywood. But now he’s becoming almost as well known as the president’s biggest heckler on Twitter—and conservatives love him for it.
by Asawin Suebsaeng
December 31, 2014

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

“I don’t expect to work [in Hollywood] again.”

That was James Woods in 2013. The 67-year-old actor had worked in Hollywood for decades, starring in such acclaimed films as Once Upon a Time in America and Oliver Stone’s Salvador, playing Rudy Giuliani, voicing a shady government agent in the Grand Theft Auto video game series, and even guest-starring on The Simpsons as a Kwik-E-Mart proprietor. But now his politics were offending the progressive sensibilities of the American film industry.

“Scratch a liberal, find a fascist every time,” Woods tweeted in April. These days the Oscar-nominated actor uses his Twitter account to broadcast his right-wing views to his 190,000 followers—and he’s arguably become President Obama’s biggest, most famous troll on Twitter.

“He’s the nicest guy you’ll ever meet, but his politics are, apparently, batshit crazy,” says Ben Dreyfuss, engagement editor at Mother Jones whose family—including movie star Richard—is friends with Woods.

The actor does have a tendency to latch on to popular conservative memes and conspiracy theories, among them the IRS, Benghazi, and Obamacare. And at least for the time being, he’s sticking to social media as his platform for bashing liberals.

“He is not doing any interviews on this subject,” Woods’s publicist told The Daily Beast. “He prefers to express himself through Twitter and leave it at that.”

Woods’s comments can sometimes be inflammatory. He used the slur “towel-heads” after the 9/11 attacks. He has said he believes Al Sharpton is a “race pimp” and a pig. He has called Obama a “true abomination.” And that was well before this Christmas, when he appeared to joke about Obama being a Muslim.

Woods’s diehard conservatism has led some to draw parallels between his Twitter persona and his character in the 2013 movie White House Down, an extremist hawk who spends most of his time on screen hating on a liberal black president.

Woods is significantly more aggressive and prolific in his ranting than Hollywood conservatives like Jerry Bruckheimer, Bruce Willis (who isn’t much of a Republican team player, anyway), and Sylvester Stallone (who also happens to be the most anti-gun celebrity in Hollywood). Woods’s tweets alone have made him a darling in certain conservative media circles.

“James Woods has a reputation in the business of not mincing words,” Breitbart posted in September 2013. “Woods has been a prolific, highly articulate, and politically incorrect conservative voice,” The Daily Caller raved the next month. A “fierce fighter for the truth regarding the tragedy in Benghazi,” proclaimed Twitchy, the Twitter curation site founded by Michelle Malkin that regularly highlights Woods’s tweets, in May.

“James Woods refuses to toe the Hollyweird line,” Twitchy managing editor Lori Ziganto told The Daily Beast in an email. “Woods uses Twitter to speak actual truth to power; conservatives rightly can’t get enough of this rare Hollywood bravery. Woods understands the power of Twitter.”

As for those who find his views extreme, they might very well read one of his quotes from a 2003 interview with Salon and imagine the actor commenting on his future self:

“I’ve never talked to an extreme liberal or conservative who could be disabused of his or her notions about their positions,” he said. “They are intractable in their thinking, they are unreasoning and unreasonable, and it’s just a waste of breath to talk to them.”

Ten years later, Woods would tweet: “I vowed if I were ever on Twitter, I would NEVER talk politics. That worked out pretty good…”

It’s probably too late to turn back now.

[admin]

Popehat v. James Woods SLAPP-down Match; Coming Soon To A Court Near You
from the can-i-get-front-row-seats? dept
by Mike Masnick
Techdirt
August 28, 2015

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

A month ago, we wrote about actor James Woods bizarrely suing a trollish Twitter user who had been mocking Woods on the site. The whole lawsuit seemed ridiculous. The specific tweet that sent Woods over the edge was this anonymous user (who went by the name "Abe List") saying "cocaine addict James Woods still sniffing and spouting." Soon after our post on the subject, Ken "Popehat" White posted an even better takedown entitled James Woods Punches the Muppet. That post has now been updated with a brief note that White has now been retained to defend the anonymous Twitter user. And, if that gets you excited for what to expect in the legal filings, well, you don't have wait. As first reported by Eriq Gardner at the Hollywood Reporter, White has filed the John Doe's opposition to Woods' attempt to unmask the guy. And it's worth reading.

Problem number one with Woods' suit is laid out right at the beginning of the filing, which is that Woods himself has a habit of accusing others of using illegal drugs as well, just as Abe List did:



The filing shows other tweets from Woods that have similar words that Woods complained about Abe List using, such as "clown" and "scum." As the filing notes, it appears Woods thinks that he can use those insults towards others, but if anyone uses them towards him, it's somehow defamatory.

Plaintiff, an internationally known actor, is active on Twitter, a social media platform. There he is known for engaging in rough-and-tumble political debate. Plaintiff routinely employs insults like “clown” and “scum,” and even accuses others of drug use as a rhetorical trope....

But Plaintiff apparently believes that while he can say that sort of thing to others, others cannot say it to him. He has sued Mr. Doe for a derisive tweet referring to him as “cocaine addict James Woods still sniffing and spouting” in the course of political back-and forth.... He also complains, at length, that Mr. Doe has called him things like a “clown” and “scum.” Naturally, Plaintiff has himself called others “clown” or “scum” on Twitter.

The filing, quite reasonably, notes that these kinds of hyperbolic claims cannot be seen as defamatory, and since there's no legitimate claim here, there is no reason to do expedited discovery or to unmask Abe List, who is entitled to have his identity protected under the First Amendment.

Oh, and, not surprisingly, White will be filing an anti-SLAPP motion shortly, which may mean that Woods is going to have to pay for this mess that he caused.

The filing also notes that while Woods sent a subpoena to Twitter to try to seek Abe List's identity, the company turned it down as deficient. The full two page letter is in the filing below as Exhibit B, but a quick snippet on the First Amendment concerns:

First, Twitter objects because you have provided no documentation showing that the Court considered and imposed the First Amendment safeguards required before a litigant may be permitted to unmask the identity of an anonymous speaker. As courts have recognized, a trial court must strike a balance "between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protects its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants." Dendrite Int'l, Inc. v. Doe No. 3,775 A.2d 756, 760 (N.J. Super. A.D. 2001). Accordingly, before a service provider such as Twitter may be compelled to unmask an anonymous speaker, (1) a reasonable attempt to notify the user of the request and the lawsuit must be made, and (2) the plaintiff must make a prima facie showing of the elements of defamation. See Krinsky v. Doe, 72 Cal. Rptr. 3d 231, 239, 244-46 (Cal. Ct. App. 2008). Moreover, under California law, the party seeking discovery must demonstrate "a compelling need for discovery" that "outweigh[s] the privacy right when these two competing interests are carefully balanced." Digital Music News LLC v. Superior court of Los Angeles, 226 Cal. App. 4th 216, 229 (2014) (citing Lantz v. Superior court, 28 Cal. App. 4th 1839, 1853-54 (1994).

It does not appear that you will be able to meet these standards. The speech at issue appears to be opinion and hyperbole rather than a statement of fact. Further, the target of the speech is a public figure who purposefully injects himself into public controversies, and there has been no showing of actual malice. Attempts to unmask anonymous online speakers in the absence of a prima facie defamation claim are improper and would chill the First Amendment rights of speakers who use Twitter's platform to express their thoughts and ideas instantly and publicly, without barriers.

Meanwhile, Woods has already filed a response in which he is still seeking to uncover the name of Abe List, and which repeats more ridiculous claims about the whole thing, starting off with the simply false claim that the original "cocaine addict" tweet was likely seen by "hundreds of thousands" of Woods' followers. That's wrong. They would only see if they followed both Woods and the Abe List account, which very few did.

The filing, somewhat hilariously, claims that calling someone "a joke," "ridiculous," "scum" and "clown-boy" are not protected by the First Amendment. Which makes me wonder what law school Woods' lawyers went to. Because that's just wrong:

AL's outrageous claim appears to be the culmination of a malicious on-line campaign by AL to discredit and damage Woods' reputation, a campaign which began as early as December 2014. In the past, AL has referred to Woods with such derogatory terms as a "joke," "ridiculous," "scum" and "clown-boy." ... Although AL's rantings against Woods began with childish name calling, it has escalated beyond the protections of free speech, i.e., the First Amendment does not permit anyone to falsely represent to the public that another person is addicted to an illegal narcotic.

Um... but Woods himself did exactly that (see above). It's standard hyperbolic speech, which is clearly not defamatory especially when mocking a public figure like Woods who has a history of using the same sort of hyperbolic insults on Twitter. Even more ridiculously, Woods' lawyers claim that by saying that the statement was a joke, that's Abe List admitting that he knew it was a false statement. I can't see that argument flying. I can see it backfiring big time once the anti-SLAPP motion is made.

So, what about those similar tweets made by Woods himself? His lawyers tell the court to ignore those piddly things.

... to the extent AL or TG attempt to argue that the Court should consider other statements on their Twitter accounts, or any previous tweets by Mr. Woods, the argument is a red herring. First, there is no reason any of Mr. Woods' followers, all of whom were exposed to the defamatory statements, would even bother to investigate the speakers and/or their Twitter sites to determine if they were reliable sources. As to Mr. Woods, we are not aware of any false statements of fact made by Mr. Woods and his sometimes sharp commentary on political matters is irrelevant to the allegations here.

Except, uh, again, Woods suggested someone smoked crack, just like Abe List joked that Woods was a cocaine addict. And, again, Woods and his lawyers are just wrong that all of Woods' followers would have seen Abe Lists' tweets. They're just factually wrong.

You never know how courts will rule in any particular case, no matter how ridiculous, but I have a hard time seeing how Woods gets out of this without having to pay two sets of lawyers -- his own and Ken White -- for filing a clearly bogus defamation case designed to shut up (and identify) an anonymous Twitter critic. No matter what, James Woods may not be a cocaine addict, but he has made it clear that he can dish it out but can't take it back when people make fun of him. What a clown.

[admin]

Part 1 of 2

James Woods vs. John Doe: Notice of Motion and Motion for an Order Compelling Non-Party Kenneth P. White to Answer Deposition Questions and Produce Documents; and An Order for Sanctions Against Non-Party Kenneth P. White in the amount of $9,040.55
by James Woods

MICHAEL E. WEINSTEN (BAR NO. 155680)
LINDSAY MOLNAR, ESQ (BAR NO. 272156)
LAVELY & SINGER
PROFESSIONAL CORPORATION
2049 Century Park East, Suite 2400
Los Angeles, California 90067-2906
Telephone: (310) 556-3501
Facsimile: (310) 556-3615
Email: mweinsten@lavelysinger.com
Imolnar@lavelysinger.com
Attorneys for Plaintiff JAMES WOODS
 
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES

JAMES WOODS, an individual,
Plaintiff,
vs.
JOHN DOE a/k/a "Abe List" and DOES 2 through 10, inclusive,
Defendants.

Case No.: BC 589746

[Hon. Mel Recana, Dept. 45]

NOTICE OF MOTION AND MOTION FOR: (1) AN ORDER COMPELLING NON-PARTY KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE DOCUMENTS; AND (2) AN ORDER FOR SANCTIONS AGAINST NON-PARTY KENNETH P. WHITE IN THE AMOUNT OF $9,040.55

[Declaration of Michael E. Weinsten and Separate Statement filed concurrently herewith]

Date: December 22, 2016
Time: 8:35 a.m.
Dept: 45

Reservation ID: 161109172908

Complaint Filed: July 29, 2015
Trial Date: None

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:

PLEASE TAKE NOTICE that on December 22, 2016, at 8:35 a.m., or as soon thereafter as the matter may be heard in Department 45 of the Los Angeles Superior Court, located at 111 North Hill Street, Los Angeles, California 90012, Plaintiff James Woods ("Plaintiff") will, and hereby does, move the Court for an order compelling Non-Party Kenneth P. White ("White") to (1) provide substantive responses without objection to the questions asked during his deposition and (2) produce documents responsive to Plaintiff s deposition subpoena.

Plaintiff brings this motion to compel White's deposition testimony pursuant to California Code of Civil Procedure § 2025.480(a). Plaintiff brings this motion after White refused, during his November 14, 2016 deposition, to answer any questions related to the actual identity of his client in this action - Defendant John Doe a/k/a "Abe List" - by improperly asserting the attorney-client privilege and other unfounded objections.

Plaintiff will also move the Court for an order compelling White to produce documents that he was required to produce pursuant to Plaintiff s deposition subpoena.

Plaintiff will also move the Court for an order that White pay to Plaintiff the sum of no less than $9,040.55 as the reasonable costs and attorney fees incurred by Plaintiff in connection with bringing the instant Motion and taking White's November 14, 2016 deposition.

This Motion is made and based upon this Notice, the accompanying Memorandum of Points and Authorities, the Separate Statement, the Declaration of Michael E. Weinsten and any exhibits attached thereto, the court's file herein, and any oral argument and other documentary evidence as may be Presented at the hearing.

Dated: November 30, 2016

LAVELY & SINGER
PROFESSIONAL CORPORATION
MICHAEL E. WEINSTEN
LINDSAY MOLNAR

By: MICHAEL E. WEINSTEN
Attorneys for Plaintiff JAMES WOODS

TABLE OF CONTENTS

• I. INTRODUCTION
• II. STATEMENT OF RELEVANT FACTS
o A. AL's Unsuccessful Anti-SLAPP Motion
o B. White's Unsubstantiated Claim That AL Died During The Appeal of the Court's Anti-SLAPP Ruling
o C. White's Unfounded and Bad-Faith Refusal to Answer Basic Deposition Questions and Produce Documents Concerning the Identity of His Purportedly Deceased Client
• III. LEGAL ARGUMENT
o A. A Motion To Compel Is Proper Where A Deponent Refuses To Answer Questions During The Examination Or Produce Documents At Deposition
o B. The Court Should Compel White To Answer Deposition Questions Relating to the Identity of AL Since This Information is Neither Private Nor Privileged And Is Critical To Woods' Ability To Effectively Prosecute His Claims Against AL
o i. Because AL's Privacy Rights Died With Him, White CannotWithhold AL' s Identity On Privacy Grounds
o ii. AL's Identity and Information Related To His Identity Is Not Protected By The Attorney-Client Privilege
o iii. Information Related to the Identity of AL Is Highly Relevant And Critical For Woods' To Prosecute His Claims Against AL
o C. White's Claim That Woods Is Not Entitled to Information Related to the Identity of AL Due to Fear of "Harassment" or "Intimidation" Is Unfounded
• IV. WHITE'S FAILURE TO PROVIDE ANY JUSTIFICATION FOR HIS FAILURE TO ANSWER DEPOSITION QUESTIONS AND OR PRODUCE DOCUMENTS RESPONSIVE TO THE SUBPOENA WARRANTS AN AWARD OF MONETARY SANCTIONS AGAINST HIM
• V. CONCLUSION

TABLE OF AUTHORITIES

Cases

• 4 AF Holdings LLC v. Doe, No. 2: 12-CV-1066 GEB GGH, 2012 WL 6042635 (E.D. Cal. 2012)
• Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960)
• Beverly Hills Nat. Bank & Trust Co. v. Superior Court In and For Los Angeles County, 195 Cal. App. 2d 861 (1961)
• Brunner v. Superior Court 0/ Orange Cty., 9 51 Cal.2d 616 (1959)
• Doe v. Kamehameha Schools etc., 596 F.3d 1036 (9th Cir. 2010)
• Flynn v. Higham, 149 Cal.App.3d 677 (1983)
• Hays v. Wood, 25 Cal.3d 772 (1979)
• Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59 (1975)
• Kramer v. Superior Court of Los Angeles County, 17 237 Cal. App. 2d 753 (1965)
• Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (2008)
• Lugosi v. Universal Pictures, 20 25 Cal.3d 813 (1979)
• Moran v. Superior Court in and/or Sacramento County, 38 Cal. App. 2d 328 (1940)
• Pers. v. Farmers Ins. Grp. of Companies, 52 Cal. App. 4th 813
• Rosso, Johnson, Rosso & Ebersold v. Superior Court, 25 191 Cal.App.3d 1514 (1987)
• 26 Tien v. Superior Court, 139 Cal.App.4th 528 (2006)
• United States v. Doe, 28 655 F.2d 920 (9th Cir. 1980)

Statutes

• Code of Civil Procedure § 1987.2(a)
• Code of Civil Procedure § 2023.030(a)
• Code of Civil Procedure § 2025.010
• Code of Civil Procedure § 2025.480(j)
• Evidence Code § 952
• Evidence Code § 954

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This case arises from the publication of a malicious and fabricated accusation leveled against actor James Woods ("Woods") by an individual who hid behind the Twitter name "Abe List" (hereafter "AL"). In July 2015, AL falsely accused Woods of being a "cocaine addict" on the widely popular social media site Twitter and, after Twitter refused to remove the libelous statement, Woods was forced to file suit for defamation and invasion of privacy by false light to protect his good name and reputation.

Rather than face Woods' claims on the merits, AL's modus operandi from the very beginning of this lawsuit has been to utilize various procedural roadblocks to conceal his identity from Woods and delay the prosecution of Woods' claims. For example, shortly after Woods filed the Complaint, AL filed a frivolous (and ultimately nnsuccessful) anti-SLAPP motion, which was clearly intended solely to prevent his identity from being disclosed. When Woods then sought to conduct discovery in connection his opposition of the anti-SLAPP motion, AL vehemently opposed the motion, claiming that Woods first had to prove his entire prima facie case against AL before discovering AL's identity.

After this Court denied AL's anti-SLAPP and rightly held that Woods had "met his burden of showing a probability of prevailing" on his claims, AL filed afrivolous appeal of this COUli's order, once again trying to block the disclosure of his identity and further delaying the prosecution of Woods' claims. Then, when it was finally time for AL to file his reply brief - after Woods had already incurred the time and expense of filing a 50-page Respondents' brief - AL's counsel, Kenneth P. White ("White"), filed a declaration with the appellate court (1) stating that his client had passed away, (2) indicating that AL's estate would be substituting into the matter, and (3) requesting an extension of time for the filing of AL's reply brief However, no substitution was ever made. Instead, weeks later, White suddenly filed a dismissal of the appeal - which resulted in this case being remanded back to the trial court.

Critically, although White claims that AL is deceased, he has refused to provide any evidence whatsoever substantiating this claim. Moreover, when Woods' counsel reasonably requested that White at least provide the identity of his now-purportedly-deceased client - a fact which would be necessary in order to confirm whether AL is actually deceased - White refused.

As a result of White's staunch refusal to provide evidence of AL's purported client's death, or even AL's name, Woods was forced to take White's deposition on November 14,2016. During this deposition, White still refused to disclose AL' s identity (or produce the relevant documents requested in the deposition subpoena), asserting the unfounded objections that such information is private, subject to the attorney-client privilege, not relevant to the claims in this lawsuit, and harassing. [1]

Obviously, White's objections are meritless and in bad faith. First and foremost, AL's right to privacy died along with him and, in any event, White cannot assert this right on his deceased client's behalf. See Lugosi v. Universal Pictures, 25 Cal.3d 813,820,833 (1979) (dissenting Justices agreeing with majority that: "It is not disputed that the right of privacy is a personal one, which is not assignable and ceases with an individual's death.") (emphasis added). Second, AL's identity and information related to his identity are not subject to the attorney-client privilege - as these are merely facts, not communications. See Hays v. Wood, 25 Cal.3d 772,785 (1979) (rejecting attorney's claim that the identity of his clients are privileged). Indeed, Woods is unaware of even a single case where the attorney-client privilege was upheld to preclude an anonymous litigant from disclosing his name. Third, there is no question that AL's identity is relevant to Woods' ability to effectively prosecute his claims, conduct discovery and obtain a judgment against a known person - even more so in light of the fact that the Court has already found Woods has a "probability of prevailing" on his claims, Indeed, if White is unwilling to substantiate his claim that AL is deceased, Woods is entitled to investigate whether this claim is true. [2] Lastly, information related to AL's identity is clearly not being requested for purposes of "harassment" or "intimidation," nor has White has offered any factual or legal support for such an absurd objection (nor does any such support exist).

In light of the above, Woods' motion should be granted and White should be compelled to answer the deposition questions set forth in the concurrently-filed Separate Statement, as well as produce documents responsive to the Subpoena.

II. STATEMENT OF RELEVANT FACTS

A. AL's Unsuccessful Anti-SLAPP Motion

On July 29, 2015, Woods filed the instant lawsuit against AL for defamation and invasion of privacy by false light.

On September 2, 2015, AL filed an anti-SLAPP motion claiming that the defamatory tweet at issue was protected by the First Amendment and that Woods could not prevail on his claims because the tweet was not a statement of fact, but, instead, mere "rhetorical hyperbole" and "insult."

On February 8, 2016, the Court denied AL's anti-SLAPP motion, finding that Woods had "met his burden of showing a probability of prevailing" on his claims for defamation and invasion of privacy.

On February 11,2016, AL filed a Notice of Appeal of the Court's February 8, 2016 order denying his anti-SLAPP.

B. White's Unsubstantiated Claim That AL Died During The Appeal of the Court's Anti-SLAPP Ruling.

On August 26, 2016, while AL's appeal was pending, Woods' counsel received an email from White stating that there had been a "development in the Woods v. Doe matter," and requesting a time to speak. Declaration of Michael E. Weinsten ("Weinsten Decl."), ~2, Ex. A. During a telephone that same day, White informed Woods' counsel that AL had purportedly died. Weinsten Decl., ~2. White, however, would not respond to any of Woods' counsel's questions regarding the identity of AL, or how or when AL allegedly died. Id White also refused to provide any actual documentary evidence that AL is deceased. Id. Shortly thereafter, on October 21,2016, AL (or AL's estate), dismissed the pending appeal.

C. White's Unfounded and Bad-Faith Refusal to Answer Basic Deposition Questions and Produce Documents Concerning the Identity of His Purportedly Deceased Client

On November 3, 2016, Woods issued and served a Deposition Subpoena for Personal Appearance and Production of Documents and Things (the "Subpoena") on White. Weinsten Decl., Para. 3, Ex. B.

In addition to testimony, the Subpoena sought the production of the following categories of documents:

• DOCUMENTS sufficient to IDENTIFY John Doe a/k/a "Abe List", your client and the defendant in the lawsuit captioned James Woods v. John Doe a/k/a "Abe List", which is pending in Los Angeles Superior Court, Case No. BC589746.

• DOCUMENTS sufficient to IDENTIFY the personal representative of the estate of John Doe a/k/a "Abe List."

Weinsten Decl., Para. 3, Ex. B.

On November 9, 2016, White served written objections to the Subpoena. Weinsten DecL, Para. 4, Ex. C. On the same day, White also informed Woods' counsel by phone that he would not answer questions at the deposition that would disclose the identity of AL. Weinsten Decl., Para. 5, Ex. D. However, White was ambiguous as to whether he would answer other questions. Id.

On November 10, 2016, Woods' counsel sent White a meet and confer letter explaining that White's objections to the Subpoena were unfounded because the identity of his client was not subject of the attorney-client privilege or private information. Weinsten Decl., Para. 5, Ex. D. White never responded to this letter. Weinsten Dec., Para. 5.

On November 14, 2016, Woods took White's deposition pursuant to the Subpoena. Weinsten Decl., Para. 6, Ex. E. During his deposition, White refused to respond to the following questions, among others:

• "What is the legal name of your client?" Weinsten Decl., Para. 6, Ex. E at 7:7.

• "What is the name of his heir?" Weinsten Decl., Para. 6, Ex. E at 8:12.

• "What was Abe List's residential address when he passed away?" Weinsten Decl., Para. 6, Ex. E at 31 :14-15.

• "[D]id Mr. Abe List live in Los Angeles, California?" Weinsten Decl., Para. 6, Ex. E at 26:13-14.

• "Other than the handle "Abelisted" are there any other Twitter accounts under other handles that were owned or managed by Abe List?" Weinsten Decl., Para. 6, Ex. E at 39:6-8.

• "Who informed you that Abe List had passed?" Weinsten Decl., Para. 6, Ex. E at 14:2.

• "Would that be Abe List's father?" Weinsten Decl., Para. 6, Ex. E at 14:8.

• "So just to be clear, you are not going to give me the name of the personal representative of Abe List's estate?" Weinsten Decl., Para. 6, Ex. E at 14: 14-17.

• "Where did Mr. Doe pass away? Weinsten Decl., Para. 6, Ex. E at 15:15.

• "How old was Abe List when he passed away?" Weinsten Decl., Para. 6, Ex. E at 17:16.

• "Was Abe List married?" Weinsten Decl., Para. 6, Ex. E at 23:3.

• "Did Abe List live in Los Angeles, California, when he passed away?" Weinsten Decl., Para. 6, Ex. E at 26:21-22.

White's counsel objected to the above questions on the grounds that they purportedly seek information that is (1) protected by the attorney-client privilege, (2) "not reasonably calculated to lead to admissible evidence," and (3) designed to "harass, intimidate third parties and/or deceased people ... " Weinsten Decl., Para. 6, Ex. E at 7:8-22. White also failed and refused to bring any of the documents requested in the Subpoena to the deposition. Weinsten Decl., Para. 6.

Efforts to further meet and confer continued throughout White's deposition, wherein Woods' counsel sought legal authority in support of White's objections, but was provided none. See, e.g., Weinsten Decl., Para. 6, Ex. E at 7:23-8:4.

III. LEGAL ARGUMENT

A. A Motion To Compel Is Proper Where A Deponent Refuses To Answer Questions During The Examination Or Produce Documents At Deposition

"Any party may obtain discovery ... by taking in California the oral deposition of any person, including any party to the action." Cal. Civ. Proc. Code § 2025.010. "It is established that a litigant has the right to take a proper deposition, and to receive responsive answers to proper questions ... for the purposes of discovery or for use as evidence, or for both purposes." Beverly Hills Nat. Bank & Trust Co. v. Superior Court In and For Los Angeles County, 195 Ca!. App. 2d 861, 864-865 (1961) (citations omitted). Indeed, "a deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, or to the claim or defense of any other party." Kramer v. Superior Court of Los Angeles County, 237 Cal. App. 2d 753, 756 (1965); see also CCP Section 2017.010 (providing that "any party may obtain discovery ... that is relevant ... , if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.") "The statute authorizing the taking of depositions ... should be liberally construed to the end that a litigant in a pending action may be afforded a reasonable opportunity to procure available testimony in support of his cause." Mora v. Superior Court in and for Sacramento County, 38 Cal. App. 2d 328, 334 (1940).

"If a deponent fails to answer any question or to produce any document ... 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." CCP § 2025.480(a). "If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition." CCP § 2025.480(e).

As set forth below and in Woods' Separate Statement filed herewith, White's objections to Woods' deposition questions and White's objections to Woods' document requests are without merit and the answers and production sought are relevant to the issues in this litigation. As such, Woods submits that Mr. White should be compelled to provide answers to the deposition questions set forth herein and produce responsive documents to the Subpoena.

B. The Court Should Compel White To Answer Deposition Questions Relating to the Identity of AL Since This Information is Neither Private Nor Privileged And Is Critical To Woods' Ability To Effectively Prosecute His Claims Against AL.

Mr. White has refused to produce responsive documents and answer critical questions at his deposition relating to the identity of his purportedly-deceased client on the grounds that such information is somehow (1) protected by the right to privacy, (2) protected by the attorney-client privilege, (3) "not reasonably calculated to lead to admissible evidence," and (4) intended to "harass, intimidate third parties and/or deceased people ... " For the reasons set forth herein, White's objections are meritless and his testimony, as well as the production of responsive documents, should be compelled.

i. Because AL's Privacy Rights Died With Him, White Cannot Withhold AL's Identity On Privacy Grounds

White has refused to produce documents responsive to the Subpoena on the baseless ground that the documents are "protected by the right to privacy and anonymity." Weinsten Decl., Para. 4, Ex. C at 2:13- 14, 24-25. First, assuming AL is actually deceased (which is not conceded), he no longer has any right to privacy. More specifically, it is well settled that the right of privacy does not survive but dies with the person. See Lugosi v. Universal Pictures, 25 Cal.3d 813, 820, 833 (1979) (dissenting Justices agreeing with majority that: "It is not disputed that the right of privacy is a personal one, which is not assignable and ceases with an individual's death.") (emphasis added); Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59, 62 (1975). Further, "the right to privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded .... " Hendrickson, 48 CaLApp.3d at 62; Flynn v. Higham, 149 CaLApp.3d 677 (1983) (children of deceased actor Errol Flynn cannot sue author of biography of Flynn for defamation or invasion of privacy because the right of privacy cannot be asserted by anyone other than the person whose privacy has been invaded). Thus, White cannot assert such a right on AL's behalf.

Second, AL does not have (and never had) the right to proceed anonymously in this lawsuit. Under California law, a litigant who has voluntarily appeared and submitted to the jurisdiction of the court has a very high burden to satisfy in order to remain anonymous. A general "presumption exists that cases will be litigated with the true identities of the parties set forth on the record, and a court may not lightly disregard that presumption." AF Holdings LLC v. Doe, No. 2:l2-CV-1066 GEB GGH, 2012 WL 6042635, at *2 (E.D. Cal. 2012) (emphasis added) (denying defendant's right to litigate anonymously.) This presumption is based on, among other things, the public interest in an open court system, including the public's right to know the identity of parties to a lawsuit. See Doe v. Kamehameha Schools etc., 596 F.3d 1036, 1042-43 (9th Cir. 2010) ("We are sympathetic to the concerns of the Doe children and their parents, but we recognize the paramount importance of open courts.") California courts only allow parties to use pseudonyms in the "unusual case" when nondisclosure of the party's identity "is necessary ... to protect a person from harassment, injury, ridicule or personal embarrassment." United States v. Doe, 655 F.2d 920, 922 (9th Cir. 1980) ("We recognize that the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity."). Here, AL has never established (and neither has White) the extraordinary circumstances required for a litigant to remain anonymous. [3]

In light of the above, White cannot refuse to answer questions of produce documents that relate to the identity of AL on privacy grounds.

 ii. AL's Identity and Information Related To His Identity Is Not Protected By The Attorney-Client Privilege

Contrary to White's claims, AL's identity and information related to his identity is not subject to the attorney-client privilege. See Hays, 25 Ca1.3d at p. 785 ("It is well established that the attorney-client privilege, designed to protect communications between them, does not ordinarily protect the client's identity."); Tien v. Superior Court, 139 Cal.App.4th 528, 537 (2006) (same); Brunner v. Superior Court of Orange Cty., 51 Cal.2d 616,618 (1959) ("[I]t is the general rnle that an attorney is not privileged to withhold disclosing by whom he has been employed."). To the contrary, California courts have acknowledged that once litigation is commenced, a litigant should not be required "to struggle in the dark against unknown forces," even if this means disclosing the name of a client who wishes to remain anonymous. See Baird v. Koerner, 279 F.2d 623, 630 (9th Cir. 1960) ("There is no question ... that it is at times vital to the administration of justice to require disclosure of a client's name.")

The attorney-client privilege is "a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer." See Evid. Code, § 954 (emphasis added). '" [C]onfidential communication between client and lawyer' means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which ... discloses the information to no third persons other than those who are present to further the interest of the client in the consultation ... and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." Evid.Code, § 952 (emphasis added).

Here, AL's legal name does not fit within the purview of Evid. Code, § 954, as it is not a "communication" made in confidence. There is no question that someone's legal name is not "confidential"-it is known by many people outside the scope of any attorney-client privilege communications. Moreover, disclosing the identity of AL, or information related to his identity, would not disclose the contents of any legal advice obtained by AL (or AL's estate). Woods is not asking for any communications that AL had with White regarding his identity. Indeed, Woods is not aware of a single case where a court has allowed an attorney of a deceased client who is a party to a lawsuit to withhold the identity of his client on privilege grounds.

Furthermore, the extremely limited exceptions to the general rule that client identities are not privileged are inapplicable here. First, there is no reason to believe that disclosing the identity of AL (or his estate's personal representative) might implicate AL in unlawful activities or expose him to criminal or civil liability. See Tien, 139 Cal.App.4th at 537; Hays, 25 Cal.3d at 785. Considering that AL has already been sued by Woods, there is no risk in exposing him to any "civil liability" beyond what he is already facing. Moreover, there is no risk of exposing AL to criminal liability since Woods' allegations are not criminal in nature. Thus, this exception does not apply.

Second, this is not a situation where "known facts regarding an attorney's representation are sue that the disclosure of the client's identity would betray personal, confidential information regarding the client." Tien, 139 Cal.App.4th at 537-538 (holding trial court's discovery order compelling disclosure of the names of class members who contacted plaintiffs' counsel did not violate attorney-client privilege because disclosing the names would not "disclose any personal, confidential information.") The identity of AL or information related to the identity of AL does not constitute "personal, confidential information" because, as stated above, AL's name is not confidential-it is known by virtually everyone that has met AL; not solely his attorneys. Moreover, the disclosure of this information would not "betray a confidential communication" because someone's legal name is not a "confidential communication" - it is a/act, plain and simple. See Tien, 139 Cal.App.4th at 538; cf. Rosso, Johnson, Rosso & Ebersold v. Superior Court, 191 Cal.App.3d 1514, 1518 (1987) (refusing to order disclosure of identities of women who responded to newspaper advertisement directed to women who have suffered injury from use of an intrauterine device because "revealing their names would reveal the nature of a 3 medical problem, ordinarily considered a confidential communication").

iii. Information Related to the Identity of AL Is Highly Relevant And Critical for Woods' To Prosecute His Claims Against AL

Woods is entitled to discover the identity of AL. It is indisputable that AL' s identity is critical and relevant to Woods' ability to investigate and gather information to prosecute his claims against AL. Indeed, California courts have recognized that "[n]otwithstanding the constitutional right to anonymity ... a libel plaintiff has a legitimate competing interest in discovering an anonymous speaker's identity in order to effectively prosecute the libel claim." Doe 2, 206 Cal. App. 5th at p. 1311. Moreover, because White has refused to provide any evidence substantiating his claim that AL is deceased, Woods requires AL's name in order to conduct his own investigation into the issue. Lastly, Woods cannot obtain (or collect) a judgment against a "John Doe." Thus, he needs AL's identity to obtain a collectable judgment against him.

C. White's Claim That Woods Is Not Entitled to Information Related to the Identity of AL Due to Fear of "Harassment" or "Intimidation" Is Unfounded

Lastly, White has refused to provide the identity of AL based on the baseless claim that this information is sought to "harass, intimidate [unnamed] third parties and/or deceased people ... " Weinsten Decl., Para. 6, Ex. E at 7: 13-1 S. This is ridiculous. First of all, if AL is in fact deceased (as White contends), he cannot as a matter of fact (and common sense) be "harassed" or "intimidated." Moreover, White does not indicate who the "third parties" are that would purportedly be "harassed" or "intimidated" should the identity of AL be disclosed. Instead, White's objections are baseless and designed to further obstruct Woods' ability to prosecute his claims. White provides zero evidence that Woods intends to use this information for any other purpose than to prosecute his claims in this lawsuit. As such, White should be compelled to respond to the deposition questions and produce responsive documents.

 IV. WHITE'S FAILURE TO PROVIDE ANY JUSTIFICATION FOR HIS FAILURE TO ANSWER DEPOSITION QUESTIONS AND OR PRODUCE DOCUMENTS RESPONSIVE TO THE SUBPOENA WARRANTS AN AWARD OF MONETARY SANCTIONS AGAINST HIM

Pursuant to Code of Civil Procedure section 2025.480G), where a court concludes that a deponent improperly refused to answer deposition questions, the court must impose monetary sanctions unless the court finds that the losing party "acted with substantial justification" or that there are other circumstances that make the imposition of sanctions improper. California courts may also impose a monetary sanction against a deponent engaging in the misuse of the discovery process by failing to respond to a subpoena. See Cal. Code ofCiv. Pro. § 2023.030(a) ("The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process ... pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of Vthat conduct. "). A nonparty opposing a motion to compel compliance with a subpoena without substantial justification is also subject to sanctions. See Cal. Code of Civ. Pro. §§ 1987.2(a) ("the court may in its discretion award the amount of the reasonable expenses incurred in making ... the motion, including reasonable attorney's fees, if the court finds the motion was ... opposed in bad faith or without substantial justification."); 2020.030; 2025.480; 2023.01O(d); see also Pers. v. Farmers Ins. Grp. a/Companies, 52 Cal. App. 4th 813, 818 (The Code "authorizes service of a deposition subpoena for the production of documents on a nonparty witness and ... authorize[ s] punishment for 'refusal ... to produce' documents requested in the subpoena.") (emphasis added)

Here, White's refusal to answer Woods' deposition questions was without substantial justification and constituted a misuse of the discovery process pursuant to CCP §§ 2023.010(d) and (e). As such, monetary sanctions are warranted to compensate Woods for the reasonable costs and fees associated with the motion and deposition.

As set forth in the accompanying declaration, the total fees and costs that Woods will incur in connection with this motion are no less than $9,040.55. Weinsten Decl., Paras. 7-9.  

V. CONCLUSION

For the reasons stated herein and in Woods' Separate Statement filed concurrently herewith, White has unjustifiably refused to answer relevant questions during his deposition and produce the relevant documents specified in the Subpoena. As such, Woods respectfully requests that the Court issue an Order directing White to appear and answer the questions set forth in Woods' Separate Statement and to produce all documents specified in the Subpoena at 10:00 a.m. on January 5, 2017. Woods also respectfully requests that the Court award monetary sanctions against White and in favor of Woods in the sum of $9,040.55.

Dated: November 30, 2016

LAVELY & SINGER
PROFESSIONAL CORPORATION
MICHAEL E. WEINSTEN
LINDSAY MOLNAR

By: MICHAEL E. WEINSTEN
Attorneys for Plaintiff JAMES WOODS

***

DECLARATION OF MICHAEL E. WEINSTEN

1. I am an attorney at law duly qualified to practice before the Courts of the State of California. I am a member of Lavely & Singer Professional Corporation, attorneys of record for Plaintiff JAMES WOODS ("Woods") in this action. The facts stated herein are true and correct and of my own personal knowledge, and if called and sworn as a witness, I could and would testifY competently thereto under oath.

2. Attached hereto as Exhibit "A" is a true and correct copy of an August 26, 2016 email that I received from Kenneth White ("White"), counsel for Defendant JOHN DOE alk/a "Abe List" ("AL") in this action. That same day, during a telephone call with my associate Lindsay Molnar, White claimed that AL had died. However, White would not respond to any of Mrs. Molnar's questions regarding the identity of AL, or how or when AL allegedly died. White also refused to provide any actual documentary evidence that AL was deceased.

3. On November 3, 2016, my firm issued and served a Deposition Subpoena for Personal Appearance and Production of Documents and Things (the "Subpoena") on White. A true and correct copy of the Subpoena is attached hereto as Exhibit "B."

4. On November 9, 2016, White served written objections to the Subpoena, a true and correct copy of which is attached hereto as Exhibit "C."

5. Attached hereto as Exhibit "D" is a true and correct copy of a November 10, 2016 letter sent by Ms. Molnar to White. White never responded to this letter.

6. On November 14, 2016, Mrs. Molnar took White's deposition pursuant to the Subpoena. White failed and refused to bring any of the documents requested in the Subpoena to the deposition. A true and correct copy of relevant excerpts from the certified transcript of White's deposition is attached hereto as Exhibit "E."

7. Woods has incurred and will incur reasonable costs and attorney fees in connection with Whites deposition and the bringing of this Motion in the amount of $9,040.55, consisting of the following:

(a) Motion filing fee - $60.00

(b) Process server fee - $70.00

(c) Deposition court reporter and transcript fee -- $598,05

(d) Attorney fees - $8,312.50

At the hourly billing rate of $375.00, Mrs. Molnar has spent nine (9) hours meeting and conferring with White, taking White's deposition, and drafting this motion, for a total of $3,375.00 in attorney fees. Additionally, at the hourly billing rate of $400.00, my associate David B. Jonelis has spent five (5) hours drafting and revising this motion, for, a total of $2,000.00 in attorney fees. Additionally, at the hourly billing rate of $625.00, I spent one and a half (1.5) hours reviewing and revising this motion, for a total of $937.50 in attorney fees.
9. Based upon my experience, I anticipate that Mr. Jonelis will spend an additional five (5) hours preparing the reply to this motion and attending the hearing on this motion, for a total of $2,000.00 in attorney fees.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this 30th day of November, 2016, at Los Angeles, California.

MICHAEL E. WEINSTEN  

***

On Aug 26, 2016, at 1:09 PM, Kenneth White <kwhite@brownwhitelaw.com>wrote:

Michael and Lindsay:

There's been a development in the Woods v. Doe matter that I'd like to bring to your attention. I hope that it will permit a resolution. I know you have a brief due soon and I'll stipulate to extending the time to file it while I brief you on it. Please let me know when you are available to talk.

Ken White

<image001.jpg>
Kenneth P. White
Brown White & Osborn LLP
333 S. Hope Street, Suite 4000
Los Angeles, CA 90071
Phone (213) 613-9446
Fax (213) 613-0550

***

DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS

TO: Kenneth P. White, Brown White & Osborn LLP, 333 South Hope Street, 40th Floor, Los Angeles, California 90071

YOU ARE ORDERED TO APPEAR IN PERSON TO TESTIFY AS A WITNESS in this action at the following date, time and place:

Date: November 14, 2016

Time: 11:00 a.m.

Address: LAVELY & SINGER, P.C.
2049 Century Park East, Suite 2400, Los Angeles, California 90067

Date issued: November 9, 2016

Lindsay Molnar, Esq.
Attorneys for Plaintiff James Woods

ATTACHMENT 3

DEFINITIONS

1. The term "DOCUMENT" or "DOCUMENTS" as used herein shall mean and refer t all writings (whether electronic or hard copy) as defined by California Evidence Code section 250 and further includes any and all originals as defined by California Evidence Code section 255 and an and all duplicates as defined by California Evidence Code section 260, as well as all drafts prepare at any time in connection with such DOCUMENTS, within YOUR possession, custody and/or control and/or YOUR agents, attorney, accountants and/or any other PERSON who may act on his behalf excepting only those DOCUMENTS which are privileged or otherwise protected from discovery.

2. Without limiting the foregoing, the term "DOCUMENT" or "DOCUMENTS" as use herein also includes all written, typewritten, printed, electronic and graphic materials of any kind 0 nature, including, but not limited to, correspondence, notes, memoranda, telegrams, cables, telexes telecopies, electronic messages and attachments (including but not limited to email messages an attachments transmitted, received or maintained via websites or internet service providers such Hotmail, Gmail, Earthlink, AOL, Cox, Yahoo, ATT, Comcast, Verizon, Sprint, or any other provide or account) (also including any messages, posts, instant messages, emails, or status updates of an sort sent, received, posted, and/or transmitted via Facebook.com, Twitter.com, MySpace.com, or other internet websites or social networking services), instant messages, text messages, sms messages, weblog posts, posts and/or messages made on the internet or any website, publications contracts, agreements, insurance policies, minutes, interoffice communications, offers, charts, papers records, reports, analyses, studies, books, calendars, diaries, appointment books, statements complaints, filings with any court, tribunal or governmental agency, internal investigations, plans bylaws, corporate minutes, ledgers, transcripts, summaries, agendas, audits, work orders, repair orders, bills, invoices, receipts, estimates, financial records, financial statements, account statements confirmations, performance evaluations, personnel files, diplomas, certificates, instruction manuals policy manuals, bulletins, advertisements, periodicals, accounting records, checks, check stubs, check registers, canceled checks, bank statements, money orders, negotiable instruments, sound recordings films, photographs, mechanical or electronic recordings, tapes, transcriptions, any records of any statement, conversation, telephone call, meeting, event or activity, computer program(s) and data an data processing cards. As used herein, the term "DOCUMENTS" should be construed in its broadest possible sense to include all types of documents and "WRITINGS" as defined by California Evidence Code Section 250, all forms of information retained on any computer or other electronic or magnetic media or memory, all computer diskettes, drives, flash drives, cellular phones, and other memo apparatus containing such information, and any other graphic, printed or typed material of any nature or kind whatsoever.

3. "IDENTIFY," as it relates to a Person, shall mean to state the Person's full name, last known address, last known telephone number, last known company for whom that Person worked and the Person's position with that company. As it relates to a Document, "IDENTIFY" shall me to state the type and title of the Document, its subject matter and bates number, and who ha possession, custody or control of it.

4. The terms "COMMUNICATION" and "COMMUNICATIONS" as used herein shall mean and include every manner or means of disclosure, transfer, communication, or exchange of data and/or information, whether orally, electronically, by DOCUMENT, or in any other manner or whether face to face or by telephone, mail, facsimile, electronic mail, text message, internet posting personal delivery, or otherwise.

REQUESTS FOR PRODUCTION

1. DOCUMENTS sufficient to IDENTIFY John Doe a/k/a "Abe List", your client and the defendant in the lawsuit captioned James Woods v. John Doe a/k/a "Abe List", which is pending in Los Angeles Superior Court, Case No. BC589746.

2. DOCUMENTS sufficient to IDENTIFY the personal representative of the estate of John Doe a/k/a "Abe List."

***

BROWN WHITE & OSBORN LLP
KENNETH P. WHITE (Bar No. 173993)
333 South Hope Street, 40th Floor
Los Angeles, California 90071-1406
Telephone: 213.613.0500
Facsimile: 213.613.0550

Attorneys for subpoenaed non-party,
KENNETH P. WHITE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT

JAMES WOODS,
Plaintiff,
v.
JOHN DOE, ET AL.
Defendants.

Case No.: BC589746

NON-PARTY KENNETH P. WHITE'S OBJECTION TO DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS

Date: November 14, 2016
Time: 10:00 a.m.
Place: Lavely & Singer, P.C.
2049 Century Park East, Ste. 2400
Los Angeles, CA 90067

TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that non-party Kenneth P. White hereby objects to the Deposition Subpoena for Personal Appearance and Production of Documents and Things, served by Plaintiff James Woods as follows:

OBJECTION TO DEPOSITION NOTICE

Non-party Kenneth P. White objects to the notice of deposition on the grounds that it represents an attempt to depose him on subjects protected by the attorney-client privilege, and is not reasonably calculated to lead to discoverable evidence for use in the case. Its purpose is to harass Mr. White, the late Mr. Doe's family, and to attack the late Mr. Doe's name.

OBJECTION TO REQUESTS FOR PRODUCTION

REQUEST FOR PRODUCTION No. 1.:

DOCUMENTS sufficient to IDENTIFY John Doe a/k/a "Abe List", your client and the defendant in the lawsuit captioned James woods v. John Doe a/k/a "Abe List", which is pending in Los Angeles Superior Court, Case No. BC589746:

OBJECTION TO REQUEST FOR PRODUCTION No. 1.:

Non-party Kenneth P. White responds as follows: Non-party objects that the request seeks documents protected by the right to privacy and anonymity. Non-party objects that the request is not reasonably calculated to lead to discoverable evidence. for use in the case. Rather, the purpose is to harass Mr. White, the late Mr. Doe's family, and to attack the late Mr. Doe's name.· Non-party objects that the request seeks information covered by the attorney-client privilege. Without waiving the first two objections, Non party rests on the latter objection and will not produce documents.

 REQUEST FOR PRODUCTION No. 2.:

DOCUMENTS sufficient to IDENTIFY the personal representative of the estate of John Doe a/k/a "Abe List."

OBJECTION TO REQUEST FOR PRODUCTION No. 1.:

Non-party Kenneth P. White responds as follows: Non-party objects that the request seeks documents protected by the right to privacy and anonymity. Non-party objects that the request is not reasonably calculated to lead to discoverable evidence. Rather the purpose is to harass Mr. White, the late Mr. Doe's family, and to attack the late Mr. Doe's name. Non-party objects that the request seeks information covered by the attorney-client privilege. Without waiving the first two objections, Non party rests on the latter objection and will not produce documents.

DATED: November 9, 2016

BROWN WHITE & OSBORN LLP

By: KENNETH P. WHITE
Attorneys for subpoenaed non-party, KENNETH P. WHITE

***

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 333 South Hope Street, 40th Floor, Los Angeles, California 90071.

On November 9, 2016, I served the following document(s) described as: NONPARTY KENNETH P. WHITE'S OBJECTION TO DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows:

Michael E. Weinsten
Lavely & Singer, P.C.
2049 Century Park East, Ste. 2400
Los Angeles, CA 90067
Tel.: (310) 556-3501
Fax: (310) 556-3615
Attorneys for Plaintiff
James Woods

BY ELECTRONIC MAIL: On the above-mentioned date, from Los Angeles, California, I caused each such document to be transmitted electronically to the party(ies) at the e-mail addressees) indicated below. To the best of my knowledge, the transmission was reported as complete, and no error was reported that the electronic transmission was not completed.

STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on November 9, 2016, at Los Angeles, California.

_______________
Letty Perez

[admin]

Part 2 of 2

LAVELY & SINGER
PROFESSIONAL. CORPORATION
ATTORNEYS AT LAW
SUITE 2400
2049 CENTURY PARK EAST
LOS ANGELES, CALIFORNIA 90061-2906
TELEPHONE (310) 556-3501
FACSIMILE (SI0) 556-3615
http://WWW.LAVELYSlNGER.COM

November 10, 2016

VIA EMAIL: kwhite@brownwhiteIaw.com
Kenneth P. White
Brown White & Osborn LLP
333 S. Hope Street, Suite 4000
Los Angeles, CA 90071

Re: . James Woods v. John Doe a/k/a "Abe List", et al.
Our File No 5802-2

Dear Ken:

I am in receipt of your objections to our Subpoena, and your email suggesting you will be voicing similar objections at the deposition. As you know, your objections are not well founded. Indeed, you previously objected to disclosing your client's name on privacy grounds stating that we first had to first establish a prima facie case for defamation. The Court has now held that my client has a probability of prevailing on the merits, and your appeal on that issue has been dismissed. By definition we have established a prima facie case for defamation by your client. Nor do any of our requests involve attorney-client communications. We have every right to determine who your client is, whether your client is in fact still living or deceased, and if deceased when it happened, who is administering the estate, etc.

Further, when I called to tell you the types of questions we would be asking, none of which invoke privacy rights or privilege, you refused to indicate one way or another how you would answer. Since you have refused to volunteer this information, we have no choice but to go forward with your deposition. So that there is no confusion down the road, please note that if you refuse to answer under oath questions that do not invoke attorney-client privilege, we will have no choice but to move to compel answers and seek our attorneys' fees and costs for doing so.

Very truly yours,

LINDSAY D. MOLNAR

LDM
cc: Michael Weinsten, Esq.

***

Kenneth P. White
November 14, 2016

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

JAMES WOODS, an individual,
Plaintiff,
vs.
JOHN DOE a/k/a "ABE LIST" and DOES 2 through 10, inclusive,
Defendants.

Case No. BC589746

VIDEOTAPED DEPOSITION OF KENNETH P. WHITE
Monday, November 14, 2016
11:00 a.m. - 11:59 a.m.

2049 Century Park East, Suite 2400
Los Angeles, California

Reported By:
PAMELA A. STITT
CSR No. 6027

APPEARANCES:

For Plaintiff:

LAVELY & SINGER
BY: LINDSAY D. MOLNAR
ATTORNEY AT LAW
2049 Century Park East
Suite 2400
Los Angeles, California 90067-2906
310.556.3501
lmolnar@lavelysinger.com

For Defendants:

BROWN WHITE & OSBORN LLP
BY: CALEB MASON
ATTORNEY AT LAW
333 South Hope Street
40th Floor
Los Angeles, California 90071
213.613.0500
cmason@brownwhitelaw.com

The Videographer:
STAN BEVERLY
U.S. LEGAL SUPPORT

INDEX TO EXAMINATION

WITNESS: KENNETH P. WHITE

EXAMINATION

By Ms. Molnar

RECESSES
(11:47 a.m. - 11:51 a.m.)
(11:56 a.m. - 11:57 a.m.)

INFORMATION REQUESTED
(None)

UNANSWERED QUESTIONS

PAGE / LINE
7 / 7  
8 / 12
10 / 16  
14 / 8  
15 / 15  
16 / 16  
17 / 16  
22 / 1  
23 / 3  
26 / 13, 21  
28 / 21  
29 / 14, 22  
30 / 20  
31 / 22  
32 / 11  
35 / 16  
37 / 25  
39 / 6  
42 / 2, 10  
43 / 9
 
[Page 7]

the defendant referenced in Exhibit 1 as John Doe a/k/a Abe List?

A. Yes. I will confirm that the person named here, the person whose conduct is described here was my client.

Q. You say "was. n He is no longer your client?

A. He is deceased.

Q. Okay. What is the legal name of your client?

MR. MASON: We are going to object on several grounds that I think Mr. White -- I'm happy to have him articulate -- but they boil down to attorney-client communications, they are privileged, and we believe that the underlying purpose of the question is not reasonably calculated to lead to admissible evidence and it's purpose is to harass, intimidate third parties and/or deceased people, which we do not believe is an appropriate function  of the litigation process, but Mr. White is an attorney and I'm happy to let him explain all of that.

 THE WITNESS: I am going to follow my attorney's admonition and I would only add factually that the core purpose of representation of Mr. Doe was to protect his identity and that is part of the basis of the assertion of the attorney-client privilege.

MS. MOLNAR: Okay. Are you aware of any legal authority that supports your position?

MR. MASON: Yes.

[Page 8]

MS. MOLNAR: Do you know any of it off the top of your head?

THE WITNESS: No. And as deponent I think it would be work product.

BY MS. MOLNAR:

Q. So are you still in an attorney-client relationship with your client now that he is deceased?

A. I am in an attorney-client relationship with his heir.

Q. And is his heir a male or a female?

A. Male.

Q. What is the name of his heir?

 MR. MASON: Again, we would object to that question for the same reasons articulated earlier.

If Mr. White wants to expand on his reasons, he is free to do so but we are objecting to the question. He is not going to give you a substantive answer as to the name.

THE WITNESS: I would only add that the specific reason for the continuing representation of the interest of the late Mr. Doe was to protect his identity and the identity, therefore, of his heirs.

BY MS. MOLNAR:

Q. So who is your client now?

A. I would say that it is the estate of John Doe.

[Page 14]

A. I don't but I did it in writing.

Q. And who informed you that Abe List had passed?

MR. MASON: Same objections.

THE WITNESS: The person I now am instructed by as the representative of the late Mr. Doe, a family member is the one who contacted me.

BY MS. MOLNAR:

Q. Would that be Abe List's father?

MR. MASON: Same objections.

THE WITNESS: I am going to stick with that.

BY MS. MOLNAR:

Q. You are not going to answer that question?

THE WITNESS: Yes, I am going to decline to.

BY MS. MOLNAR:

Q. So just to be clear, you are not going to give me the name of the personal representative of Abe List's estate?

A. That's correct.

Q. Were you informed the date that Abe List passed away?

MR. MASON: I would go vague as to grammar and also the same objections. Informed of the date or informed on the date?

MS. MOLNAR: I can strike that.

MR. MASON: Yes. Just add a preposition.

[Page 15]

BY MS. MOLNAR:

Q. When did Mr. Abe List pass away?

MR. MASON: That one I am going to interpose the same objections we had previously.

THE WITNESS: I do not remember the date; however, if I did, I would stand by the objections as articulated by counsel.

BY MS. MOLNAR:

Q. I believe you previously had informed us that it was the month of August; is that correct?

A. I believe that in settlement communications, specifically denominated as such, I made a reference to that general time range, yes. Outside of settlement communications I would decline to answer.

Q. Where did Mr. Doe pass away?

MR. MASON: Same objections.

THE WITNESS: I am going to decline to answer because I think it would reveal confidential communications.

BY MS. MOLNAR:

Q. And just to be clear for the record when I refer to Mr. Doe and Abe List, it's interchangeably, I am referring to your client.

A. I understand.

Q. Did you ever view a death certificate for Abe

[Page 16]

List?

MR. MASON: Same objections.

THE WITNESS: Did I ever view a death certificate?

BY MS. MOLNAR:

Q. Yes. Did you see one? Were you provided with one?

MR. MASON: So, right, same objections and I think also the question is vague. Can you --

MS. MOLNAR: I can rephrase.

MR. MASON: Yeah.

BY MS. MOLNAR:

Q. Have you seen Abe List's death certificate?

A. I have not reviewed a death certificate of Abe List. I have not read one.

Q. Have you asked for one?

A. I didn't.

MR. MASON: Well, yeah, as to that question again as phrased I would go with vague, particularly as to the object of the verb "asked." Depending on how it was phrased that could reveal attorney-client communications so I think as phrased I would say same objections as previous.

THE WITNESS: Now that I think about it, I think I have to decline to answer that on the basis of

[Page 17]

attorney-client communications.

MR. MASON: Generally what we are going for here is the position that we are taking and I understand that you guys have a different view of the legal merits of this position and we will litigate that in the appropriate forum, but Mr. White is declining to answer questions that ask him to reveal steps that he took or legal communications that he had that would tend to reveal the identity of John Doe in this case. I understand that you guys want to know the name and we don't want to tell it to you.

MS. MOLNAR: Right. And that we obviously disagree with your position.

MR. MASON: Exactly.

MS. MOLNAR: Okay.

Q. How old was Abe List when he passed away?

MR. MASON: Same objections.

THE WITNESS: I only know that fact through attorney-client communications, so on that ground I decline to answer.

And for the record I don't remember the exact number anyway.

BY MS. MOLNAR:

Q. What was the cause of Abe List's death?

MR. MASON: Same objections. Also foundation,

[Page 23]

A. He did. And to my knowledge his identity was withheld from her.

Q. Okay. Was Abe List married?

MR. MASON: Same objections.

THE WITNESS: I only know the answer to that question based on an attorney-client communication and on that basis I think I have to refuse to answer. Let me think about that for a second. I think that during a discussion with you which -- I will confirm that in a discussion that I would characterize as a settlement discussion with you, not a successful one, but a settlement overture I told you that he had not been married at any time relevant to this case. And I will confirm that I did that in a settlement context. I believe that would be covered by 1152. That aside I cannot reveal anything more than that.

MS. MOLNAR: Okay. I am going to mark this as, I believe, Exhibit 2.

(Deposition Exhibit 2 was marked.)

BY MS. MOLNAR:

Q. Mr. White, can you describe to me what we have just marked as Exhibit 2?

MR. MASON: For the record has there been -- forgive my ignorance, has there been discovery in this case? Should I be looking for a Bates stamp or anything?

[Page 26]

interpose--

MS. MOLNAR: But I haven't asked yet.

MR. MASON: I understand that. But rather than speculate on the record, I mean, if you learned the fact relevant to the question through the attorney-client through attorney-client communications or attorney work-product, then that would fall within the same objections that we have been interposing throughout the case. So with that caution we can listen attentively for the next question.

THE WITNESS: Okay.

BY MS. MOLNAR:

Q. Is that true, does Mr. -- did Mr. Abe List live in Los Angeles, California?

A. On that one part of the profile I do not remember a nonprivileged source of information or a place where it has been disclosed so I am unable to answer that part of the profile -- I'm unable to answer based on the attorney-client privilege. I do know the answer. I'm unable to disclose it.

Q. Okay. And outside the profile did Abe List live in Los Angeles, California, when he passed away?

MR. MASON: Same objections.

THE WITNESS: Right. My same objection. I know the answer to the question, but I only know as to that

[Page 27]

particular one from an attorney-client source and that is not one where I think it has been revealed elsewhere by me or by the client.

BY MS. MOLNAR:

Q. Okay. Did Abe List own a house in Los Angeles at the time of his death?

MR. MASON: Same objections. Also foundation, calls for speculation.

THE WITNESS: This one -- Let me lay the foundation for why I think I can answer it. At the very beginning of the case I informed lead counsel for Mr. Woods that the profile of Mr. List was completely fictitious and that -- I remember saying a few things that weren't true, one of which was being that he owned any property. Given that deliberate disclosure in the past I think I'm able to answer no, he did not.

BY MS. MOLNAR:

Q. Okay. And going back on Exhibit 2 it also referenced that Abe List has a link to Harvard, which would imply that he went to Harvard at some point.

Did he graduate from Harvard?

MR. MASON: Same -- Same objections.

THE WITNESS: Without waiving If I knew the answer to the question, I would refuse to answer on the basis of the attorney-client privilege. I do not

[Page 31]

MR. MASON: I was making an objection, facial expression. I would go with our same objections and also vague and foundation, it calls for speculation --

THE WITNESS: Let me think about that.

MR. MASON: -- asking about tweet history.

THE WITNESS: I'm sorry. I'm going to withdraw my answer and say that I think that asking me that invades attorney work-product. You are asking me what I did in the course of investigating the case.

MR. MASON: That's what it sounds like to me.

THE WITNESS: And on that ground I will decline to answer.

BY MS. MOLNAR:

Q. What was Abe List's residential address when he passed away?

MR. MASON: Same objections.

THE WITNESS: I will -- I will say that I do not remember the address but without -- I will say that without waiving the objection, which I would invoke if I knew the answer.

BY MS. MOLNAR:

Q. Did you e-mail Abe List?

MR. MASON: Same objections. Same objections.

THE WITNESS: I think I have to as to the methodology of contact I think I have to assert the

[Page 39]

accounts?

MR. MASON: Same objections.

THE WITNESS: When you say "any other Twitter accounts," what are you including and excluding?

BY MS. MOLNAR:

Q. Other than the handle "Abelisted" are there any other Twitter accounts under other handles that were owned by or managed by Abe List?

MR. MASON: Same objections. Also foundation, calls for speculation.

THE WITNESS: I have to assert the attorney-client privilege because the only way I know the answer to that question is by attorney-client communication.

BY MS. MOLNAR:

Q. Did Abe List have a website?

MR. MASON: Same objections. Also foundation, also calls for speculation.

THE WITNESS: If I knew the answer to the question, I would need to assert the attorney-client privilege and decline to answer it because the only way I would know would be by attorney-client communications; however, I do not know the answer to the question.

MS. MOLNAR: Could we take a five-minute break?

MR. MASON: You bet.

[Page 49]

STATE OF CALIFORNIA
COUNTY OF LOS ANGELES

I, PAMELA A. STITT, a Certified Shorthand Reporter, do hereby certify:

That prior to being examined, the witness in the foregoing proceedings was by me duly sworn to testify to the truth, the whole truth, and nothing but the truth;

That said proceedings were taken before me at the time and place therein set forth and were taken down by me in shorthand and thereafter transcribed into typewriting under my direction and supervision;

I further certify that I am neither counsel for, nor related to, any party to said proceedings, not in anywise interested in the outcome thereof.

In witness whereof, I have hereunto subscribed my name.

Dated: November 16, 2016

PAMELA A. STITT
CSR No. 6027

THIS IS YOUR CRS RECEIPT

INSTRUCTIONS

Please print this receipt and attach it to the corresponding motion/document as the last page. Indicate the Reservation ID on the motion/document face page (see example). The document will not be accepted without this receipt page and the Reservation ID.

RESERVATION INFORMATION

Reservation ID: 161109172908
Transaction Date: November 9.2016
Case Number: BC589746
Case Title: JAMES WOODS VS JOHN DOE ET AL
Party: WOODS JAMES (Plaintiff/Pelitioner)
Courthouse: Stanley Mask Courthouse
Department: 45
Reservation Type: Motion to Compel Discovery (not "Further Discovery")
Date: 12/22/2016
Time: 08:35 am

FEE INFORMATION (Fees are non-refundable)

First Paper Fee: Party asserts first paper was previously paid.

Description / Fee Motion to Compel Discovery (not "Further Discovery") / $60.00

Receipt Number: 1161109K2275

Name on Credit Card: Martin Singer
Credit Card Number: XXXX-XXXX-XXXX-9918

A COPY OF THIS RECEIPT MUST BE ATTACHED TO THE CORRESPONDING MOTION/DOCUMENT AS THE LAST PAGE AND THE RESERVATION ID INDICATED ON THE MOTION/DOCUMENT FACE PAGE.

***

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 2049 Century Park East, Suite 2400, Los Angeles, California 90067-2906.

On the date indicated below, I served the foregoing document described as:

NOTICE OF MOTION AND MOTION FOR: (1) AN ORDER COMPELLING NON-PARTY KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE DOCUMENTS; AND (2) AN ORDER FOR SANCTIONS AGAINST NON-PARTY KENNETH P. WHITE IN THE AMOUNT OF $9,040.55

on the interested parties in this action by placing [ ] the original document OR [X] a true and correct copy thereof enclosed in sealed envelopes addressed as follows:

Kenneth P. White, Esq.
Brown White & Osborn LLP
11 333 S. Hope Street, 40th Floor
Los Angeles, CA 90071-1406
12 Email: kwhite@brownwhitelaw.com
Tel: (213) 613-9446
Attorneys for John Doe (@abelisted)

[X] BY PERSONAL SERVICE:

[X] I caused such envelope to be delivered by a messenger employed by Express Network.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed November 30, 2016, at Los Angeles, California.

_______________

Notes:

1. Making AL' s alleged death even more suspicious, White admitted in his deposition that he never saw AL's alleged death certificate. See, e.g., Declaration of Michael E. Weinsten, Para. 6, Ex. E at 16:13-15 ("I have not reviewed a death certificate of Abe List.").

2. Notably, White has previously informed Woods' counsel that AL lied about many things, including information on AL' s Twitter profile. These prior lies make it even more important to get proof that AL is in fact deceased.

3 Based on previous filings with the Court in this action, AL has effectively conceded this point. For instance, in opposing Woods' prior motion to conduct discovery, AL cited Krinsky v. Doe 6,159 Cal.App. 4th 1154 (2008) for the proposition that a defamation plaintiff can only pierce the anonymity of an internet speaker if it makes a prima facie case. See Krinsky, 159 Cal.App.4th at p. 1171 (holding that a libel plaintiff seeking to compel disclosure of an anonymous speaker's identity must (1) give notice to the anonymous speaker and (2) "make a prima facie showing of the elements of libel. .. ") Thus, because Woods has now made such a prima facie showing (confirmed by the Court when it denied AL's anti-SLAPP motion), AL's own-cited authorities allow Woods to discover AL's identity.

[admin]

James Woods vs. John Doe: Order
by Hon. Joseph Kalin
January 5, 2017

MICHAEL E. WEINSTEN (BAR NO. 155680)
LINDSAY MOLNAR, ESQ (BAR NO. 272156)
LAVELY & SINGER
PROFESSIONAL CORPORATION
2049 Century Park East, Suite 2400
Los Angeles, California 90067-2906
Telephone: (310) 556-3501
Facsimile: (310) 556-3615
Email: mweinsten@lavelysinger.com
djonelis@lavelysinger.com

Attorneys for Plaintiff JAMES WOODS

FILED
Superior Court of California
County of Los Angeles
Jan 5, 2017
Sherri R. Carter, Executive Officer/Clerk
By Daniel Haro, Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES

JAMES WOODS, an individual,
Plaintiff,
vs.
JOHN DOE a/k/a "Abe List" and DOES 2
through 10, inclusive,
Defendants.

Case No.: BC 589746

[Hon. Joseph Kalin, Dept. 45]

ORDER

(1) COMPELLING NON-PARTY KENNETH P. WHITE TO PROVIDE IDENTIFYING INFORMATION ABOUT DEFENDANT JOHN DOE;

(2) ORDERING DEFENDANT JOHN DOE TO FILE AN ANSWER TO PLAINTIFF'S COMPLAINT; AND

(3) SCHEDULING CASE MANAGEMENT CONFERENCE

Date: January 3, 2017
Time: 8:35 a.m.
Dept: 45

Complaint Filed: July 29, 2015

On January 3, 2017, the Court presided over a hearing on the Motion of Plaintiff James Woods ("Plaintiff') to compel Non-Party Kenneth P. White ("White") to provide certain identifying information concerning Defendant John Doe a/k/a "Abe List" ("Defendant").

The Court, having reviewed the moving and opposing papers on Plaintiff s motion, and having heard oral argument from Plaintiff's counsel and White, hereby orders as follows:

1. No later than January 13, 2017, White shall provide a sworn declaration to Plaintiff's counsel identifying:

a. The legal name of Defendant;

b. The legal name(s) of Defendant's heir(s);

c. The legal name of the personal representative for Defendant's estate; and

d. Defendant's residential address at the time he passed away.

2. No later than January 18, 2017, Defendant shall file an answer to Plaintiffs complaint in this action.

3. A case management conference is scheduled for April 4, 2017 at 8:30 a.m.

IT IS SO ORDERED

DATED: January 5, 2017

By: THE HON. JOSEPH KALIN
JUDGE OF THE SUPERIOR COURT

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 2049 Century Park East, Suite 2400, Los Angeles, California 90067-2906.

On the date indicated below, I served the foregoing document described as:

[PROPOSED) ORDER (1) COMPELLING NON-PARTY KENNETH P. WHITE TO PROVIDE IDENTIFYING INFORMATION ABOUT DEFENDANT JOHN DOE; (2) ORDERING
DEFENDANT JOHN DOE TO FILE AN ANSWER TO PLAINTIFF'S COMPLAINT; AND (3) SCHEDULING CASE MANAGEMENT CONFERENCE

on the interested parties in this action by placing [ ] the original document OR [X] a true and correct copy thereof enclosed in sealed envelopes addressed as follows:

Kenneth P. White, Esq.
Brown White & Osborn LLP
333 S. Hope Street, 40th Floor
Los Angeles, CA 90071-1406
Email: kwhite@brownwhitelaw.com
Tel: (213) 613-9446
Attorneys for John Doe (@abelisted)

[X] BY FEDERAL EXPRESS: I am "readily familiar" with the firm's practice of collection and processing correspondence for Federal Express. Under that practice it would be deposited with Federal Express on that same day with all costs fully prepaid at Los Angeles, California in the ordinary course of
business.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed January 3, 2017, at Los Angeles, California.

_______________
N. Echesabal

[admin]

Confirmed Horrible Person James Woods Continues Being Horrible In 'Winning' Awful Lawsuit To Unmask Deceased Online Critic
from the to-the-bowels-of-hell dept
by Mike Masnick
TechDirt
January 4, 2017

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

So... Hollywood actor James Woods continues to make it clear that he's a complete and total asshole. As you may or may not recall, last year, Woods sued an anonymous Twitter user who went by the name Abe List, for mocking Woods on twitter. Specifically, List called Woods "clownboy" and later tweeted: "cocaine addict James Woods still sniffing and spouting." Woods sued Abe List claiming that the "cocaine addict" statement was defamatory, and (the important part) demanding the name and identity of Abe List. The fact that Woods, himself, has a long (long, long, long) history of spouting off similarly incendiary claims to people on Twitter apparently wasn't important. Here is an example of a Woods tweet that seems quite similar to the one he, himself, claimed was defamatory:

Stephen Garramone @stevmg - 11 Oct 2013
@RealJamesWoods Have never heard logical argument against Obama just slogans and labels from you, Jon Voight, Giuliani, all RW shit-heads

James Woods
@RealJamesWoods
@stevmg Well, put down your crack pipe, and retread my timelines. You'll find plenty there
4:11 PM - 11 Oct 2013

Ken "Popehat" White agreed to defend Abe List, along with lawyer Lisa Bloom. And while the judge initially (and, in our opinion, correctly) found Woods' lawsuit to be nothing more than a SLAPP suit, the judge eventually changed his mind. The case was moving along... and then something bizarre happened. Abe List (whoever that is) died (unexpectedly, apparently). Woods then took to Twitter to obnoxiously gloat about "winning" the case, leaving out the fact that the case was ending due to the death of the defendant. After people pointed out to Woods how ridiculous it was that he was gloating over a "victory" when someone had died, the ever classy Woods, gloated some more, first saying he hoped that List died "screaming my name. in agony" and then later saying: "Learn this. Libel me, I'll sue you. If you die, I'll follow you to the bowels of Hell. Get it?"

Donald G. Carder @theangrymick
@RealJamesWoods @LisaBloom He died, dude.

James Woods
@RealJamesWoods
@theangrymick @LisaBloom Hopefully screaming my name. In agony.
7:33 PM - 20 Oct 2016

Rustic Baller @ByYourLogic
@RealJamesWoods he's dead you fucking geriatric retard

James Woods
@RealJamesWoods
@ByYourLogic Screaming my name, I hope. Learn this. Libel me, I'll sue you. If you die, I'll follow you to the bowels of Hell. Get it?
6:27 PM - 20 Oct 2016

Woods later deleted those tweets, but as I said at the time, the whole thing is sickening. Even if Abe List was trolling Woods, happily celebrating someone's death because they once made fun of you on Twitter seems to suggest you deserve to be made fun of on Twitter. Constantly.

To then add insult to death, Woods and his lawyers continued to push forward with the lawsuit, demanding to still uncover the name of Abe List. Woods' lawyers basically tried to argue that because they didn't know Abe List's identity, it was possible that Ken White was lying that List had died. They argued that they needed White to disclose Abe List's real name to prove that List was really dead:

Critically, although White claims that AL is deceased, he has refused to provide any evidence whatsoever substantiating this claim. Moreover, when Woods' counsel reasonably requested that White at least provide the identity of his now-purportedly-deceased client -- a fact which would be necessary in order to confirm AL is actually deceased -- White refused.

Emphasis in the original. And, of course White refused. The whole point of the lawsuit appeared to be to reveal Abe List's real identity, which he has every right to protect under the First Amendment. White was hired to protect that identity, so for Woods' lawyer to pretend that it's so horrific that White would refuse to reveal the name is ridiculous -- but apparently par for the course for Woods and his "to the bowels of hell" ethos. Even more ridiculous, Woods and his lawyers demanded White be sanctioned for refusing to give up the name.

White responded by highlighting how ridiculous all this is, and how it's pretty clear that Woods is just looking to harass and intimidate his critics. In his reply, White even included screenshots of the Tweets above, showing how Woods is gloating about all of this.

When defendant (Abe Doe)... died and his personal representative dismissed his appeal of this Court's denial of his anti-SLAPP motion, Plaintiff James Woods gloated and celebrated his death, expressing his hope that Mr. Doe died "screaming [Woods' name."

Now, Mr. Woods seeks to compel Mr. Doe's attorney, non-party Kenneth P. White ("Mr. White"), to disclose Mr. Doe's identity, and to sanction Mr. White almost $10,000 for asserting the attorney-client privilege in response to his questions.... Mr. Woods asserts that his purpose is legitimate and that he does not seek to harass or abuse Mr. Doe's survivors. But Mr. Woods' own public statements give the lie to that assertion. Mr. Woods wants to do just what he said he wants to do: publicly harass and vilify a dead man and his family.

The Motion is meritless, and is a transparent attempt to abuse the discovery process to exact twisted revenge by harassing Mr. Doe's family. First, contrary to Mr. Woods' arguments, Mr. White expressly premised his refusals to answer questions on one ground -- the attorney-client privilege. That assertion was correct. Because the entire purpose of Mr. White's representation of Mr. Doe was to protect Mr. Doe's identity, and because Mr. White only learned Mr. Doe's identity through confidential communications, Mr. Woods cannot force Mr. White to disclose it.

Unfortunately (and... ridiculously), the court has now ruled that White needs to turn over List's real name (along with the details of where he died and the name of his heirs) within 10 days. The court rejected the request for sanctions against White, and also some other information that White insisted was also protected information (such as whether or not List had other Twitter accounts as well).

This is unfortunate, and a travesty. In response, White provided the following statement:

Sometimes in litigation the bad guys win. This was such a day. I remain very proud to have fought for Abe Doe, and proud to have opposed this vexatious case by James Woods, a petulant bully whose Twitter conduct shows he can dish it out but can’t take it. I’m pleased that the court rejected his demand to compel me to answer several other questions, and that it also rejected his frivolous demand for sanctions.

Woods' lawyer, Michael Weinsten, on the other hand, made the following absolutely ridiculous statement:

This is a significant step forward in our ability to recover the millions in damages caused by John Doe's cowardly Tweet. It also sends a message to others who believe they can hide behind the anonymity of online social media to falsely accuse public figures of heinous behavior without recourse to themselves.

First of all, the idea that List's tweet caused "millions in damages" is so laughable as to make you wonder if Weinsten is also on drugs (note: that's a joke and rhetorical hyperbole...). First off, List's original tweet was a reply to someone else's tweet, meaning that only very, very, very few people saw it, because only those who followed both Abe and Woods would have seen it. Second, it would suggest that such a tweet actually hurt Woods' reputation. And I'd posit that it seems a hell of a lot more likely that Woods' own actions, such as gloating over List's death, did significantly more to harm his own reputation than any silly hyperbolic tweet from an anonymous Twitter user. Finally, List didn't "accuse" Woods of "heinous behavior." He did what people -- including Woods -- regularly do on Twitter, which is make fun of other people. To argue that Woods needs special protection from a Twitter troll makes you wonder what kind of special snowflake Woods thinks he is, that no one should ever be able to mock him on Twitter, while he is apparently free to mock anyone he likes.

And, of course, on Tuesday evening, Woods took to Twitter once again to gloat over the fact that he, that special snowflake whose itty bitty feelings were hurt by someone mocking him on Twitter, is able to stomp on the grave of a dead man. He tweeted a bunch of headlines, declaring "victory" despite the fact his victory spits on the First Amendment, and then made this idiotic analogy:

James Woods @RealJamesWoods
Attack the big rat with a jackhammer, and pick off all the little rats as they desert the sinking ship. #MoreToCome

john mccall @izesane
@RealJamesWoods @TheWrap I love the "Utterly destroy the first guy so there is no second guy" approach you took on this.
5:17 PM - 3 Jan 2017

Huh? I recognize that he's trying to argue that you go after "the big dog" so that others won't pester you, or whatever, but he literally went after a no name internet troll -- for doing nearly identical things to things that Woods himself had done. He also tries to defend the "damages" claim by saying that to be a "lead" in a film you have to be insured, and claims of being a drug addict can make you uninsurable. And, sure... but what fucking insurance company uses anonymous trolls tweeting obvious jokes on Twitter to determine if lead actors are drug addicts? The answer? NONE. Woods is full of shit (again: rhetorical hyperbole, James).

This case is an unfortunate travesty of justice. List was, undoubtedly, something of an internet troll himself, regularly pushing many people's buttons (in fact, when List died, White posted about how List regularly attacked White's political beliefs as well). But I don't care how annoyed a troll might make you feel, or how hurt your special feelings are, someone like Woods (who regularly mocks people he calls "snowflakes" online -- a term often used to mock those who can't take any criticism) shouldn't get to stomp all over the grave of someone just because they made him feel bad.

[admin]

James Woods Is Addicted To Being A Crybaby
by Joe Patrice
Above the Law
Jan 5, 2017

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

Actor James Woods is famous for playing prickly, mean-spirited, cartoonish villains. Apparently he excels at these roles by living in the skin of a prickly, mean-spirited, cartoonish villain every day of his life.

This commitment to his craft is surely why he’s still suing a dead man for $10 million over allegedly libelous Tweeting. Still. Suing. A dead guy. Or at least everyone says this guy is dead — Woods isn’t conceding that yet — and obviously ne’er-do-wells fake their deaths all the time in Hollywood, so you can’t be too careful. That’s why Woods is using news of the Tweeter’s passing as an opening to unmask the guy’s identity to find out if he’s really gone, and the judge has ordered the defendant’s attorneys, Ken White (of Popehat fame) and Lisa Bloom, to identify their client.

As Voltaire put it, “I disapprove of what you say, so I will persecute you after your death for exercising your right to say it….” Or something like that.

For those who haven’t followed the twists and turns of the Woods libel litigation, an anonymous person on Twitter under the assumed name of “Abe List” called Woods a “cocaine addict” in response to some of the actor’s customarily repugnant Twitter fodder. In response, Woods sued the guy because he’s a crybaby.

In a filing opposing Woods’s request to unmask Abe List, White pointed to a Tweet Woods wrote proclaiming that he’d follow anyone he perceives as libeling him “to the bowels of Hell” — where Woods has lived — and explained:

Mr. Woods asserts that his purpose is legitimate and that he does not seek to harass or abuse Mr. Doe’s survivors,” White wrote. “But Mr. Woods’ own public statements give the lie to that assertion. Mr. Woods wants to do just what he said he wants to do: publicly harass and vilify a dead man and his family. The Motion is meritless, and is a transparent attempt to abuse the discovery process to exact twisted revenge by harassing Mr. Doe’s family

Unfortunately, the judge disagreed.

Apparently trafficking in quasi-birtherism and Islamophobia is fair — as is taking the moral stance of quitting Twitter over the platform’s decision to suspend latter day fascists — but getting mocked for being the kind of dips**t that spews that stuff is an affront that demands justice! Millions of dollars of justice.

Of course Woods is absolutely correct that the death of the writer doesn’t extinguish a libel claim. For example, if anyone spread scurrilous rumors that someone else engaged in physical or sexual abuse, the damage would survive the death of the one who spread the lie. And if these false rumors of drug addiction were truly injurious, Woods has every right to go after them regardless of Abe List’s death. But let’s get real here: just because the law says you “can” do something doesn’t mean you “should,” and his strategy at this point, while legally available to him, runs counter to everything he claims to care about.

Woods supports, if we’re being charitable, a full-throated defense of free speech. The sort of free speech fundamentalism that would stand up to even private censorship (like Twitter account suspensions) of the most vile speech. Libel and slander are certainly actionable — free speech requires legal recourse to police injurious falsehoods — but a public figure famed for hurling insults on Twitter running and hiding behind high-priced lawyers once his “feel-feels” get hurt isn’t exactly conducive to free and open discourse. If anything, weaponizing borderline (at best) libel claims to squelch caustic criticism is a far more dangerous stepping stone to a “freedom for me and not for thee!” universe than any “political correctness” boogeyperson that someone like Woods might kvetch about. When Woods says he can pursue people to the “bowels of Hell,” he’s right. He has the resources to do it and exact a pound of flesh even if his claim fails. That’s a tremendously destructive power for someone hoping to defend a culture of free speech. Sometimes you’ve got to take your lumps for the greater cause when you’re a grown-up. Sticks and stones and all that rot.

And if we’re not being charitable, then maybe that’s exactly the sort of chilled speech environment that Woods wants to see. One where only his opinions matter and no one ever calls him out.

Because, come on…. The guy never meant the “cocaine addict” statement literally, right? It’s a well-worn hyperbolic quip like saying “you’re on crack” when someone says they enjoy sardines. Or, by way of a random example, like when JAMES WOODS HIMSELF wrote on Twitter: “Put down your crack pipe… I wouldn’t want you to spend your precious crack allowance being enlightened.” Or “Well, put down your crack pipe and reread my timelines.”

I guess the powder-crack cocaine disparity applies to online discourse too.

Look, there’s a lot of people out there decrying Woods’s antics as stomach-churning, but, at the risk of putting words in a dead man’s mouth, isn’t this Abe List’s ultimate revenge? With two words, he managed to set his target into a death spiral of reputational self-destruction, alienating everyone in decent society by doggedly pursuing $10 million from a dead guy for an insult that Woods hypocritically employed himself over and over again.

This is the apotheosis of Twitter.

And James Woods has played his role in this divine play to perfection.