SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — CENTRAL DISTRICT
Date: May 5, 2023
Time: 9:00 a.m. Dept.: 52 Filed: April 14, 2023
I, Nadia Petrov, declare as follows:
1. My name is Nadia Petrov. I am an attorney licensed to practice law in the State of California, State Bar Number 318945. I am an associate at the law firm of Calderwood & Harkness LLP, located at 777 South Flower Street, Suite 4200, Los Angeles, California 90017. I am one of the attorneys of record for Defendant and Cross-Complainant Aurelius Media Americas Inc. ("AMA") in this action. I make this declaration based on my personal knowledge. If called as a witness, I could and would competently testify to the matters set forth herein.
2. On February 20, 2023, AMA served its First Set of Requests for Production of Documents, Nos. 1 through 28 (the "Requests for Production"), on Plaintiff Gavin Aldrich ("Aldrich"). The Requests for Production were served electronically by email on Julia Nazarian of Whitfield & Associates, located at 9465 Wilshire Boulevard, Suite 320, Beverly Hills, California 90212, counsel of record for Aldrich in this action. Service was made pursuant to California Code of Civil Procedure section 1010.6 and the parties' agreement to accept electronic service. A true and correct copy of AMA's First Set of Requests for Production of Documents, Nos. 1 through 28, is attached hereto as Exhibit A and incorporated herein by reference.
3. On March 30, 2023, Aldrich served his responses and objections to AMA's Requests for Production. These responses were served eight days beyond the original statutory deadline, following a ten-day extension that the parties agreed to by written stipulation executed on March 14, 2023. A true and correct copy of Aldrich's responses and objections to AMA's Requests for Production is attached hereto as Exhibit B and incorporated herein by reference.
4. Upon review of Aldrich's responses and objections, AMA identified material deficiencies in the responses to Request for Production Nos. 8, 11, 12, 13, and 14. Each deficiency is described in detail below:
Request for Production No. 8: This request seeks all communications between Aldrich and Halcyon Creek Productions LLC, Nina Castellanos, or any agent thereof, relating to any subject matter, for the period January 1, 2022 through September 30, 2022.
Aldrich's Response: Aldrich objected to this request on the grounds that it is overbroad, seeks information that is not relevant to any claim or defense in this action, and invades Aldrich's right of privacy under the California Constitution, Article I, Section 1. Subject to and without waiving these objections, Aldrich produced three (3) emails.
Deficiency: AMA's IT forensic review — conducted by AMA's internal IT security team under the direction of Gregory Tanaka, Vice President of Legal & Compliance — identified at least seven (7) emails sent from Aldrich's AMA email account (galdrich@aureliusmedia.com) to the email address info@halcyoncreekprod.com between March 3, 2022, and August 18, 2022. Aldrich produced only three of these seven emails in his response. Aldrich provided no explanation for the discrepancy between the seven emails identified by AMA's forensic review and the three emails actually produced. Aldrich did not serve a privilege log identifying any of the remaining four withheld emails as having been withheld on the basis of privilege or any other recognized ground. Furthermore, Aldrich produced no communications whatsoever from his personal email account (galdrich.private@Northgate Software.com) to Halcyon Creek Productions LLC or to Nina Castellanos, despite stating in his verified responses to AMA's Form Interrogatories, Set One, that he communicated with Castellanos through "various channels." The complete absence of any personal email communications is inconsistent with Aldrich's own discovery responses and raises serious concerns regarding the completeness of Aldrich's production.
Request for Production No. 11: This request seeks all documents, including but not limited to emails, attachments, electronic files, and digital media, transmitted by Aldrich from AMA systems (including AMA email accounts, AMA servers, AMA-issued devices, and AMA cloud storage) to any personal email account, personal cloud storage account, or personal device belonging to Aldrich or any member of his household.
Aldrich's Response: Aldrich objected to this request on the grounds that it invades his right of privacy under the California Constitution, Article I, Section 1, and that it is unduly burdensome in that it would require Aldrich to search through his personal email accounts and personal devices. No documents were produced.
Deficiency: The documents sought in this request are directly relevant to the core issues in this case. They bear directly on AMA's First Cause of Action for Breach of Employment Agreement (specifically Section 9.4 of the Employment Agreement, the confidentiality provision), AMA's Second Cause of Action for Misappropriation of Trade Secrets under the California Uniform Trade Secrets Act ("CUTSA"), California Civil Code section 3426 et seq., and to Aldrich's own breach of contract claim, which places the factual basis for AMA's "for cause" termination decision squarely at issue. AMA's forensic evidence, derived from the DLP audit described further below, indicates that Aldrich forwarded approximately 340 emails from his AMA account (galdrich@aureliusmedia.com) to his personal email address (galdrich.private@Northgate Software.com) over a fourteen-month period spanning approximately July 2021 through September 2022. The forensic evidence further indicates that these forwarded emails contained proprietary and confidential AMA materials, including but not limited to unscripted show concepts, show format bibles, audience analytics reports, revenue projections, and talent deal terms. Aldrich's blanket refusal to produce any documents responsive to this request, coupled with his assertion of privacy without producing a privilege log, is not justified under the circumstances.
Request for Production No. 12: This request seeks all documents, including but not limited to emails, attachments, electronic files, and digital media, transmitted by Aldrich from AMA systems to any third party outside of AMA, other than transmissions made in the ordinary course of Aldrich's duties as Senior Vice President and Executive Producer.
Aldrich's Response: Aldrich objected to this request on the grounds of privacy and relevance. No documents were produced.
Deficiency: The same relevance analysis applicable to Request for Production No. 11 applies with equal force to this request. The transmissions from AMA systems to Halcyon Creek Productions LLC and to any other third parties outside of AMA are central to AMA's cross-claims for breach of the confidentiality provision of the Employment Agreement, misappropriation of trade secrets, breach of fiduciary duty, and conversion. AMA is entitled discover the full universe of unauthorized transmissions of its proprietary information to third parties, not merely the subset of transmissions to Aldrich's personal accounts. Aldrich's privacy and relevance objections are without merit for the reasons set forth in the accompanying memorandum of points and authorities.
Request for Production No. 13: This request seeks all agreements, term sheets, letters of intent, memoranda of understanding, communications, or proposals between Aldrich and Halcyon Creek Productions LLC, Nina Castellanos, or any agent, representative, or affiliate thereof, relating to any co-production arrangement, joint venture, business arrangement, consulting engagement, employment arrangement, or equity participation, for the period January 1, 2021 through the present.
Aldrich's Response: Aldrich objected to this request on the grounds of relevance, privacy, and the protection of proprietary business information. No documents were produced.
Deficiency: In his verified responses to AMA's Special Interrogatories, Set One, Aldrich indicated that his transmissions of AMA materials to Halcyon Creek Productions LLC were made in connection with a "potential co-production opportunity" that Aldrich was allegedly exploring on behalf of AMA. If Aldrich intends to rely on this characterization as a justification or defense, the documents and communications reflecting the nature, scope, and terms of any such arrangement are directly relevant to AMA's cross-claims and to the central factual question of whether the transmissions were authorized or unauthorized. AMA is entitled to test Aldrich's stated justification against the documentary record. Aldrich cannot invoke this explanation in interrogatory responses while simultaneously withholding the very documents that would substantiate or contradict it.
Request for Production No. 14: This request seeks all documents reflecting, evidencing, or relating to any financial interest, ownership stake, equity participation, profit-sharing arrangement, consulting arrangement, or other economic interest held by Aldrich in Halcyon Creek Productions LLC, directly or indirectly, at any time from January 1, 2021 through the present.
Aldrich's Response: Aldrich objected to this request on the grounds of relevance and privacy. Subject to and without waiving these objections, Aldrich provided the following substantive response: "Aldrich has no financial interest in Halcyon Creek Productions LLC."
Deficiency: While AMA takes note of Aldrich's substantive denial, a bare denial without supporting documentation is insufficient. AMA is entitled to documents that would substantiate or contradict Aldrich's assertion, including but not limited to the Halcyon Creek Productions LLC operating agreement, any amendments thereto, any subscription agreements or investment records, any consulting agreements or independent contractor agreements between Aldrich and Halcyon Creek or Nina Castellanos, any promissory notes or loan agreements, any profit-sharing or revenue-sharing agreements, and any other documents reflecting financial arrangements between Aldrich and Halcyon Creek or Castellanos. If no such documents exist, Aldrich should provide a verified response so stating after conducting a reasonable and diligent search. Aldrich's bare denial does not satisfy his obligation under Code of Civil Procedure section 2031.230 to affirm that a diligent search and a reasonable inquiry have been made, and that no responsive documents exist.
5. On April 5, 2023, I participated in a telephonic meet-and-confer conference with Julia Nazarian of Whitfield & Associates, counsel for Aldrich, regarding the deficiencies identified in Aldrich's responses to Request for Production Nos. 8, 11, 12, 13, and 14. The call lasted approximately forty-five minutes. During the call, Ms. Nazarian stated that Aldrich's position with respect to the disputed requests was as follows:
(a) Communications contained in Aldrich's personal email accounts, including galdrich.private@Northgate Software.com, are "private" and are not subject to discovery in this action;
(b) Aldrich has already produced all documents that he considers responsive to the Requests for Production at issue, and he does not believe any supplementation is warranted; and
(c) Any documents relating to Aldrich's relationship with Halcyon Creek Productions LLC, including any business arrangement or financial arrangement, are "irrelevant" to AMA's cross-claims and need not be produced.
During the same call, I explained AMA's position in detail. Specifically, I stated that the documents sought in the disputed requests are directly relevant to AMA's First Cause of Action for Breach of Employment Agreement (Section 9.4, the confidentiality provision), Second Cause of Action for Misappropriation of Trade Secrets under CUTSA, Third Cause of Action for Breach of Fiduciary Duty, and Fourth Cause of Action for Conversion. I further explained that Aldrich himself has placed his communications with Halcyon Creek Productions LLC at issue by characterizing the transmissions of AMA materials as related to a "potential co-production opportunity," and that AMA is entitled to test this characterization against the full documentary record. I also noted the discrepancy between the seven emails identified by AMA's forensic review and the three emails actually produced, and requested an explanation. Ms. Nazarian stated that she would confer with her client but did not believe supplementation was warranted. At the conclusion of the call, Ms. Nazarian declined to supplement Aldrich's responses and stated that Aldrich would oppose any motion to compel.
6. On April 7, 2023, I sent a follow-up meet-and-confer letter to Ms. Nazarian, setting forth AMA's position in writing and memorializing the substance of our April 5, 2023 telephonic conference. In the letter, I requested that Aldrich serve supplemental responses to Request for Production Nos. 8, 11, 12, 13, and 14 no later than April 12, 2023. The letter detailed each deficiency and provided citations to the applicable provisions of the Code of Civil Procedure and relevant case law. A true and correct copy of the April 7, 2023 meet-and-confer letter is attached hereto as Exhibit C and incorporated herein by reference.
7. On April 11, 2023, Ms. Nazarian responded to my April 7, 2023 letter by email. In her response, Ms. Nazarian declined to supplement Aldrich's responses to any of the five disputed requests. Ms. Nazarian reiterated Aldrich's position that the documents sought are private and irrelevant, and she stated that Aldrich would oppose any motion to compel further responses. Ms. Nazarian did not provide any explanation for the discrepancy between the seven emails identified by AMA's forensic review and the three emails produced by Aldrich, nor did she indicate that a privilege log would be served identifying any withheld documents. A true and correct copy of Ms. Nazarian's April 11, 2023 email is attached hereto as Exhibit D and incorporated herein by reference.
8. AMA's IT security team, under the direction of Gregory Tanaka, Vice President of Legal & Compliance, conducted a data loss prevention ("DLP") audit beginning in August 2022. The DLP audit was initiated after AMA's internal compliance team identified anomalous data transfer activity on Aldrich's AMA-issued laptop and AMA email account. As part of this audit, Mr. Tanaka's team conducted a forensic review of Aldrich's AMA-issued laptop (a Glenrock Systems, asset tag AMA-LT-04418) and AMA email account (galdrich@aureliusmedia.com). The forensic review identified at least seven (7) emails sent from Aldrich's AMA email account to info@halcyoncreekprod.com between March 3, 2022, and August 18, 2022. The seven emails contained, among other things, the following categories of proprietary and confidential AMA materials:
(a) Three unscripted show format bibles for concepts titled "Apex Endurance," "The Remix," and "Untamed West." Each format bible contained detailed descriptions of the show concept, episode structure, casting specifications, production budgets, and competitive market analyses prepared by AMA's development team.
(b) Two pilot sizzle reels for the concepts "Apex Endurance" and "The Remix." These sizzle reels were transmitted as Larkspur Technologies links from what appears to be Aldrich's personal Larkspur Technologies account (an account not associated with AMA's enterprise Larkspur Technologies license), rather than through AMA's authorized file transfer systems.
(c) A detailed revenue model for AMA's flagship unscripted franchise, "Summit Challenge," which currently generates approximately $42 million in annual revenue across domestic and international distribution, licensing, and sponsorship channels. The revenue model included multi-year financial projections, territory-by-territory revenue breakdowns, talent compensation structures, and profit margin analyses.
Despite the existence of these seven emails, which are clearly within AMA's knowledge based on its own server records and forensic review, Aldrich produced only three (3) of the seven emails in response to Request for Production No. 8. Aldrich provided no explanation for the discrepancy. Aldrich did not serve a privilege log identifying the remaining four emails as withheld on the basis of any privilege or other recognized ground. The failure to produce these four emails, and the failure to log them on a privilege log, is inconsistent with Aldrich's obligations under Code of Civil Procedure sections 2031.240 and 2031.280.
I am informed and believe, based on records obtained from the California Secretary of State's office, that Halcyon Creek Productions LLC is a California limited liability company formed on February 14, 2022. The Articles of Organization on file with the Secretary of State identify Nina Castellanos as the organizer and registered agent. Ms. Castellanos is a former AMA development executive who departed AMA in January 2022. According to publicly available information, including the Halcyon Creek Productions LLC website and industry trade publications, Halcyon Creek operates in the unscripted and reality television production space, developing and producing unscripted entertainment content for broadcast, cable, and streaming platforms. Halcyon Creek is therefore a direct competitor of AMA in the unscripted television production market.
9. In addition to the AMA-to-Halcyon Creek emails described in paragraph 8, Aldrich has not produced any communications from his personal email account (galdrich.private@Northgate Software.com) to Halcyon Creek Productions LLC or to Nina Castellanos. AMA's forensic evidence, as described above, indicates that Aldrich forwarded approximately 340 emails from his AMA account to galdrich.private@Northgate Software.com over a fourteen-month period spanning approximately July 2021 through September 2022. The content of these forwarded emails includes proprietary AMA information such as show concepts, format bibles, audience analytics, revenue projections, and talent deal terms. Given the volume and nature of information that Aldrich forwarded to his personal email account, and given Aldrich's acknowledged communications with Nina Castellanos through "various channels," it is reasonable to infer that Aldrich may have communicated with Halcyon Creek and/or Castellanos from his personal email account as well. Yet no such communications have been produced, nor has Aldrich stated under oath that no such communications exist.
Aldrich's privacy objection does not justify the wholesale withholding of these documents. The right of privacy under the California Constitution is not absolute and must be balanced against the need for discovery of directly relevant evidence. Here, the documents sought go to the heart of AMA's cross-claims. Moreover, the Stipulated Protective Order entered by the Court on February 15, 2023, in the related class action (Aldrich et al. v. Aurelius Media Americas Inc., Case No. 22STCV38214) — which the parties have stipulated shall apply to discovery in this action as well — provides robust protections for genuinely private or confidential information. The Protective Order includes two tiers of confidentiality designation, as described further in paragraph 11 below, and provides adequate safeguards against any unauthorized disclosure of Aldrich's personal information.
10. The documents withheld by Aldrich are directly relevant to each of AMA's four cross-claims, as follows:
Breach of Employment Agreement (Section 9.4 — Confidentiality): Section 9.4 of the Employment Agreement between AMA and Aldrich, executed on March 15, 2019, provides that Aldrich shall not, during the term of his employment or at any time thereafter, directly or indirectly disclose, transmit, or make available any Confidential Information to any person or entity other than in furtherance of his duties to AMA. The transmissions of AMA's proprietary materials to Halcyon Creek Productions LLC, and the forwarding of approximately 340 emails containing confidential AMA information to Aldrich's personal email account, constitute violations of this provision. The documents withheld by Aldrich would establish the full scope and nature of these violations, including the identity of all recipients, the specific materials transmitted, and the dates and circumstances of each transmission.
Misappropriation of Trade Secrets (CUTSA, Cal. Civ. Code § 3426 et seq.): The unscripted show format bibles for "Apex Endurance," "The Remix," and "Untamed West," the pilot sizzle reels, and the Summit Challenge revenue model qualify as trade secrets under CUTSA. AMA derives independent economic value from these materials, and AMA has taken reasonable steps to maintain their secrecy, including through the confidentiality provisions of its employment agreements, access controls on its IT systems, and internal policies governing the handling of proprietary information. The documents withheld by Aldrich are essential to determining whether Halcyon Creek Productions LLC used, exploited, or further disseminated these trade secrets, and whether Aldrich acquired or disclosed the trade secrets by improper means.
Breach of Fiduciary Duty: As Senior Vice President and Executive Producer at AMA, Aldrich occupied a senior management position and owed fiduciary duties of loyalty and care to AMA. These duties included the obligation to refrain from self-dealing, to refrain from competing with AMA during his employment, and to refrain from diverting corporate opportunities to competitors or personal ventures. The documents withheld by Aldrich — particularly the agreements, communications, and proposals between Aldrich and Halcyon Creek, and documents reflecting any financial interest Aldrich may hold in Halcyon Creek — would reveal the nature and extent of Aldrich's unauthorized dealings with a direct competitor during his employment at AMA.
Conversion: AMA's proprietary digital files, including format bibles, sizzle reels, revenue models, audience analytics, and talent deal terms, are AMA's property. Aldrich's unauthorized transmission of these files to his personal email account and to Halcyon Creek Productions LLC constitutes a wrongful exercise of dominion over AMA's property. The documents withheld by Aldrich would establish the full scope of Aldrich's unauthorized appropriation and transmission of AMA's proprietary digital files, including the total volume of files transmitted, the specific categories of information involved, and the ultimate recipients of the materials.
In addition to the foregoing, Aldrich has placed his communications with Halcyon Creek at issue in this litigation by characterizing the transmissions as related to a "potential co-production opportunity" that Aldrich was allegedly exploring on behalf of AMA. Having invoked this characterization, Aldrich cannot simultaneously withhold the very documents that would confirm or refute it. If the transmissions were truly made in connection with a legitimate co-production opportunity authorized by AMA, Aldrich should have no objection to producing the supporting documentation. If, on the other hand, the documents reveal that Aldrich was acting for his own benefit or for the benefit of Halcyon Creek rather than for AMA, that evidence is plainly relevant to each of AMA's cross-claims and to the central factual dispute in this case.
11. The Stipulated Protective Order entered by the Court on February 15, 2023, in the related class action (Aldrich et al. v. Aurelius Media Americas Inc., Case No. 22STCV38214), and applicable by stipulation of the parties to discovery in this action, provides two tiers of confidentiality designation:
(a) CONFIDENTIAL: Materials designated as CONFIDENTIAL may be disclosed only to the parties, their counsel, experts retained in connection with this litigation, and the Court. Materials so designated may not be disclosed to any third party without prior written consent of the designating party or order of the Court.
(b) HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY: Materials designated as HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY may be disclosed only to outside counsel for the parties, experts retained in connection with this litigation who have signed the appropriate undertaking, and the Court. Materials so designated may not be disclosed to any party, including the party receiving the materials, or to any in-house counsel, without prior written consent of the designating party or order of the Court.
This Protective Order provides adequate safeguards for any genuinely private or confidential information that may be contained in the documents withheld by Aldrich. Aldrich and his counsel are free to designate any produced documents under either tier of the Protective Order, thereby ensuring that sensitive personal or business information is disclosed only to individuals who have a legitimate need to review it in connection with this litigation.
Moreover, Aldrich has waived any reasonable expectation of privacy in communications that relate to the alleged misappropriation of his former employer's trade secrets and the breach of his contractual confidentiality obligations. A party who transmits his employer's proprietary information to a competitor and to a personal email account cannot thereafter invoke privacy to shield those very transmissions from discovery in a lawsuit arising directly from that conduct. To hold otherwise would allow the very act of misappropriation to serve as a shield against accountability.
12. The following exhibits are attached to this declaration and are incorporated herein by reference:
Exhibit A: AMA's First Set of Requests for Production of Documents, Nos. 1 through 28, served on Plaintiff Gavin Aldrich on February 20, 2023.
Exhibit B: Aldrich's Responses and Objections to AMA's First Set of Requests for Production of Documents, served on AMA on March 30, 2023.
Exhibit C: Meet-and-confer letter from Nadia Petrov to Julia Nazarian, dated April 7, 2023, setting forth AMA's position regarding the deficiencies in Aldrich's responses to Request for Production Nos. 8, 11, 12, 13, and 14 and requesting supplemental responses by April 12, 2023.
Exhibit D: Email from Julia Nazarian to Nadia Petrov, dated April 11, 2023, declining to supplement Aldrich's responses to Request for Production Nos. 8, 11, 12, 13, and 14.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this 14th day of April, 2023, in Los Angeles, California.
________________________________________
NADIA PETROV (SBN 318945) Calderwood & Harkness LLP 777 South Flower Street, Suite 4200 Los Angeles, California 90017 Attorney for Defendant and Cross-Complainant Aurelius Media Americas Inc.
| GAVIN ALDRICH, | Case No. 22STCV41087 |
| Plaintiff, | Assigned for All Purposes to |
Hon. Catherine Villanueva, Dept. 52
v.
DECLARATION OF NADIA PETROV
AURELIUS MEDIA AMERICAS INC.,
CROSS-COMPLAINANT AURELIUS
Defendant and Cross-Complainant.
TO COMPEL FURTHER RESPONSES
FROM PLAINTIFF TO REQUESTS
FOR PRODUCTION NOS. 8, 11,
12, 13, AND 14