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					                                                                 Case3:12-cv-05667-EMC Document244 Filed06/27/14 Page1 of 15



                                                           1   LAURENCE F. PULGRAM (CSB No. 115163)
                                                               lpulgram@fenwick.com
                                                           2   JENNIFER L. KELLY (CSB No. 193416)
                                                               jkelly@fenwick.com
                                                           3   ERIC J. BALL (CSB No. 241327)
                                                               eball@fenwick.com
                                                           4   GUINEVERE L. JOBSON (CSB No. 251907)
                                                               gjobson@fenwick.com
                                                           5   MATTHEW B. BECKER (CSB No. 291865)
                                                               mbecker@fenwick.com
                                                           6   FENWICK & WEST LLP
                                                               555 California Street, 12th Floor
                                                           7   San Francisco, CA 94104
                                                               Telephone:     415.875.2300
                                                           8   Facsimile:     415.281.1350
                                                           9   Attorneys for Plaintiff and Counterdefendant
                                                               NEXTDOOR.COM, INC.
                                                          10
                                                                                              UNITED STATES DISTRICT COURT
                                                          11
                                                                                         NORTHERN DISTRICT OF CALIFORNIA
                                                          12
                                                                                                 SAN FRANCISCO DIVISION
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                                                          13
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                                                               NEXTDOOR.COM, INC., a Delaware                 Case No. 3:12-cv-05667-EMC
                                                          14   corporation,
                                                          15                     Plaintiff,                   NEXTDOOR.COM, INC.’S LIMITED
                                                                                                              OPPOSITION TO MOTION TO
                                                          16          v.                                      WITHDRAW AS COUNSEL
                                                          17   RAJ ABHYANKER, an individual,                  Date:        July 10, 2014
                                                                                                              Time:        9:00 a.m.
                                                          18                             Defendant.           Courtroom:   2 —17th Floor
                                                                                                              Judge:       Hon. William H. Orrick, III
                                                          19   RAJ ABHYANKER, an individual,
                                                          20                     Counterclaimant,
                                                          21          v.
                                                          22   NEXTDOOR.COM, INC., a Delaware
                                                               corporation; PRAKASH JANAKIRAMAN, an
                                                          23   individual; BENCHMARK CAPITAL
                                                               PARTNERS, L.P., a Delaware limited
                                                          24   partnership; BENCHMARK CAPITAL
                                                               MANAGEMENT CO. LLC, a Delaware limited
                                                          25   liability company; SANDEEP SOOD, an
                                                               individual; MONSOON ENTERPRISES, INC., a
                                                          26   California corporation, and DOES 1-50,
                                                               inclusive,
                                                          27
                                                                                 Counterdefendants.
                                                          28
                                                               NEXTDOOR.COM’S OPPOSITION TO                                    CASE NO. 3:12-cv-05667-EMC
                                                               MOTION TO WITHDRAW BY COUNSEL
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                                                           1                                                      TABLE OF CONTENTS

                                                           2                                                                                                                                         Page

                                                           3   INTRODUCTION ........................................................................................................................... 1

                                                           4   ARGUMENT ................................................................................................................................... 2

                                                           5   I.        NEXTDOOR.COM DOES NOT OPPOSE IN CAMERA CONSIDERATION,
                                                                         BUT DOES NOT BELIEVE AN ADDITIONAL JUDICIAL OFFICER IS
                                                           6             REQUIRED ......................................................................................................................... 2

                                                           7   II.       MOVING COUNSEL’S WITHDRAWAL, IF PERMITTED, SHOULD BE
                                                                         CONDITIONED ON COMPLETION OF DISCOVERY BY MR.
                                                           8             ABHYANKER..................................................................................................................... 4

                                                           9             A.         Mr. Abhyanker Has A Demonstrated History Of Non-Compliance With
                                                                                    Discovery Obligations.............................................................................................. 4
                                                          10
                                                                         B.         Counsel For Abhyanker Should Not Withdraw Until They Have
                                                          11                        Completed Mr. Abhyanker’s Production Of Records Relevant To
                                                                                    Nextdoor.com’s Remaining Claims. ........................................................................ 6
                                                          12
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                                                                         C.         Moving Counsel Should Be Required To Supervise The Narrow
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                                                          13                        Searches Set Forth In The Document Production Guidelines [Dkt. 232]. ............... 7
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                                                          14   CONCLUSION .............................................................................................................................. 11

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                                                               NEXTDOOR.COM’S OPPOSITION TO
                                                               MOTION TO WITHDRAW BY COUNSEL                                         i                               CASE NO. 3:12-cv-05667-EMC
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                                                           1                                                    TABLE OF AUTHORITIES

                                                           2                                                                                                                                      Page(s)

                                                           3   CASES

                                                           4   BSD, Inc. v. Equilon Enterprises, LLC,
                                                                  No. C 10-5223 SBA, 2013 WL 942578 (N.D. Cal. March 11, 2013) ........................................6
                                                           5
                                                               Interstellar Starship Servs., Ltd. v. Epix, Inc.,
                                                           6       304 F.3d 936 (9th Cir.2002)........................................................................................................8

                                                           7   Irwin v. Mascott,
                                                                  No. C 97-4737 JL, 2004 U.S. Dist. LEXIS 28264
                                                           8      (N.D. Cal. Dec. 1, 2004) .............................................................................................................6

                                                           9   Lahoti v. VeriCheck, Inc.,
                                                                  586 F.3d 1190 (9th Cir. 2009).....................................................................................................8
                                                          10
                                                               United States v. D’Armond,
                                                          11      65 F. Supp. 2d 1189 (D. Kan. 1999) ...........................................................................................2

                                                          12   Verizon California Inc. v. Onlinenic, Inc.,
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                                                                  No. C 09-2832 JF (RS), 2009 WL 2706393
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                                                          13      (N.D. Cal. Aug. 25, 2009) ...........................................................................................................8
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                                                          14   STATUTES

                                                          15   15 U.S.C. § 1125(d) ..........................................................................................................................8

                                                          16   15 U.S.C.A. § 1125(A) .....................................................................................................................6

                                                          17   15 U.S.C.A. §1125(D)(1) ..............................................................................................................6, 8

                                                          18   Cal. Bus. & Prof. Code § 6068 .........................................................................................................3

                                                          19   RULES

                                                          20   Cal. R. Prof. Conduct 3-700 ..............................................................................................................2

                                                          21   Cal. R. Prof. Conduct 3-700(B) ........................................................................................................2

                                                          22   Cal. R. Prof. Conduct 3-700(b)(1) ....................................................................................................2

                                                          23   Cal. R. Prof. Conduct 3-700(b)(2) ....................................................................................................2

                                                          24   Cal. R. Prof. Conduct 5-200 ..............................................................................................................3

                                                          25   Cal. R. Prof. Conduct 5-220 ..............................................................................................................3

                                                          26   OTHER AUTHORITIES

                                                          27   Diane Karpman, How to Safely Withdraw From a Case,
                                                                  CALIFORNIA BAR JOURNAL (May 2010)......................................................................................2
                                                          28
                                                               NEXTDOOR.COM’S OPPOSITION TO
                                                               MOTION TO WITHDRAW BY COUNSEL                                         ii                               CASE NO. 3:12-cv-05667-EMC
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                                                           1                                                TABLE OF AUTHORITIES
                                                                                                                  (Continued)
                                                           2
                                                                                                                                                                                         Page(s)
                                                           3
                                                               “State Bar, Standing Committee on Professional Responsibility and Conduct,
                                                           4       Formal Opinion No. 1983-74 ..................................................................................................3, 4

                                                           5

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                                                               NEXTDOOR.COM’S OPPOSITION TO
                                                               MOTION TO WITHDRAW BY COUNSEL                                    iii                           CASE NO. 3:12-cv-05667-EMC
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                                                           1                                            INTRODUCTION
                                                           2          On June 11, 2014, Bruno Tarabichi, Heather Norton, Scott Allen, Roy Montgomery and

                                                           3   Brian Orion (hereinafter, “Moving Counsel”) filed a Motion to Withdraw as Counsel and Request

                                                           4   for an Ex Parte In Camera Hearing (the “Motion”). [Dkt. 217].1 On June 27, as this Limited

                                                           5   Opposition was being prepared, Judge Chen assigned the Motion to be decided by Judge Orrick.

                                                           6   Dkt. 243. As to the procedure to be followed for this Motion, Nextdoor.com does not oppose an

                                                           7   in camera presentation as part of the motion hearing. Nonetheless, it respectfully suggests that

                                                           8   appointment of an additional judicial officer to hear such a presentation is unnecessary, and that it

                                                           9   may be counterproductive to have a different judge unfamiliar with this action hear this matter

                                                          10   and determine the propriety and conditions for withdrawal of counsel.

                                                          11          As to the propriety of withdrawal, Plaintiff Nextdoor.com, Inc. defers to the Court’s

                                                          12   assessment of whether or not Moving Counsel’s withdrawal is appropriate given its potential
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                                                               disruption of the trial schedule. However, if the Court approves Moving Counsel’s withdrawal,
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                                                          13
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                                                          14   Nextdoor.com respectfully requests that the Court condition withdrawal on certification by

                                                          15   counsel that the required discovery from Mr. Abhyanker has been completed. Should Moving

                                                          16   Counsel be permitted to withdraw before that time, Nextdoor.com is gravely concerned that Mr.

                                                          17   Abhyanker will continue failing to comply with his discovery obligations. For reasons explained

                                                          18   below and to Magistrate Judge Cousins in connection with pending discovery motions, there is a

                                                          19   demonstrated risk that without supervision of, or compulsion by, his counsel, Mr. Abhyanker will

                                                          20   fail to honor his obligations. The result would be to further delay this action and to substantially

                                                          21   prejudice Nextdoor.com, as it would be denied the discovery to which it is entitled within the

                                                          22   short period left to complete it (July 18).

                                                          23

                                                          24

                                                          25   1
                                                                The hearing date initially was set for July 17, 2014. On June 13, 2014, the Court issued notice
                                                          26   moving the hearing date to July 24, 2014. [Dkt. 222]. Based on the availability of the parties,
                                                               Nextdoor.com and Mr. Abhyanker agreed to advance the hearing date on that motion to July 10,
                                                          27   2014. In that stipulation, Nextdoor.com reserved its right to oppose the motion or ask for certain
                                                               conditions to be imposed to ensure Abhyanker’s compliance with his discovery and other
                                                          28   obligations in the case. [Dkt. 237].
                                                               NEXTDOOR.COM’S OPPOSITION TO
                                                               MOTION TO WITHDRAW BY COUNSEL                     1                      CASE NO. 3:12-cv-05667-EMC
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                                                           1                                              ARGUMENT

                                                           2   I.      NEXTDOOR.COM DOES NOT OPPOSE IN CAMERA CONSIDERATION, BUT
                                                                       DOES NOT BELIEVE AN ADDITIONAL JUDICIAL OFFICER IS REQUIRED
                                                           3

                                                           4           Moving Counsel have requested to present in camera their explanation of why “Counsel’s

                                                           5   review [of] Rule 3-700 of the California Rules of Professional Conduct indicates that they are

                                                           6   ethically required to seek to withdraw in the instant case.” Motion at 1-2. Moving Counsel cite

                                                           7   an article endorsing in camera consideration and a case in which in camera consideration was

                                                           8   afforded. Motion at 2:11-13. Nextdoor.com does not oppose in camera presentation of moving

                                                           9   counsel’s explanation, subject to such procedures and ability to address any issues that this Court

                                                          10   deems appropriate to protect the interests of Nextdoor.com.

                                                          11           However, Moving Counsel have not presented authority supporting its suggestion that a

                                                          12   judicial officer not otherwise adjudicating this action hear their explanation. Neither the
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                                                               Karpman article, nor the D’armond case suggests such an approach, much less require it.2 While
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                                                          13
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                                                          14   Nextdoor.com has just received the Court’s order that assigns this matter to Judge Orrick,

                                                          15   Counsel for Nextdoor.com respectfully is concerned that adding additional judges could be

                                                          16   counterproductive here.

                                                          17           The relevant factors that could require mandatory withdrawal under Rule 3-700(B) are

                                                          18   that counsel (1) “knows or should know that the client is bringing an action, conducting a

                                                          19   defense, [or] asserting a position in litigation without probable cause and for the purpose of

                                                          20   harassing or maliciously injuring any person;” or (2) “knows or should know that continued

                                                          21   employment will result in violation of these rules or of the State Bar Act . . . .” Cal. R. Prof.

                                                          22   Conduct 3-700(b)(1), (2). Moving Counsel has not identified in the Motion what reason requires

                                                          23   them to move to withdraw so late in this case, apparently intending to do so in camera.

                                                          24           Of the several possible reasons for mandatory withdrawal under Rule 3-700(B), one is

                                                          25   2
                                                                 See Diane Karpman, How to Safely Withdraw From a Case, CALIFORNIA BAR JOURNAL (May
                                                          26   2010) (advising not that a different judge should hear a motion, but that counsel should exercise
                                                               care in what is revealed: “because the judge may be the fact finder in the client’s case . . . going
                                                          27   into detail might create prejudice to the clients [sic] case. You must be very careful.”); United
                                                               States v. D’Armond, 65 F. Supp. 2d 1189, 1193 (D. Kan. 1999) (noting that in camera hearing
                                                          28   was held, but before judge presiding over the case).
                                                               NEXTDOOR.COM’S OPPOSITION TO
                                                               MOTION TO WITHDRAW BY COUNSEL                     2                       CASE NO. 3:12-cv-05667-EMC
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                                                           1   counsel’s obligation not to condone suppression of evidence. Thus, Rule 5-220, “Suppression of

                                                           2   Evidence,” provides:

                                                           3           “A member shall not suppress any evidence that the member or the member’s client has a
                                                                       legal obligation to reveal or to produce.”
                                                           4

                                                           5   In the present case, the record is clear that Mr. Abhyanker has suppressed or destroyed records—

                                                           6   including records of the creation of the apparently fabricated Due Diligence CD, and of the

                                                           7   Assignment Agreements purportedly vesting rights in Mr. Abhyanker. Indeed, it is through

                                                           8   discovery from third parties of Mr. Abhyanker’s communications that Nextdoor.com has been

                                                           9   able to develop much of the evidence of fabrication and false representations to the Court: the

                                                          10   equivalent records in Mr. Abhyanker’s possession (e.g., emails reflecting Mr. Abhyanker’s

                                                          11   knowledge that he was not entitled to act on behalf of Center’d, Inc. as an “interim CEO”) are

                                                          12   still unproduced. See Declaration of Jennifer L. Kelly (Kelly Decl.) ¶ 2. There has likely been
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                                                          13   suppression of many other records showing Mr. Abhyanker’s bad faith which Nextdoor.com has
                                          SAN FRANCISCO




                                                          14   not yet uncovered because third parties have not produced them.

                                                          15           The Court presiding over this action should know if the reason for counsel’s withdrawal is

                                                          16   suppression of evidence by Mr. Abhyanker (himself a member of the Bar, and thus also bound

                                                          17   not to suppress evidence). This Court needs to know these facts in order to remedy that

                                                          18   suppression by appropriate orders—for example, by an order compelling the production of all

                                                          19   evidence already known to counsel to be responsive, unprivileged and not produced. Without

                                                          20   such an order, the concealment of damning evidence will only continue after withdrawal. The

                                                          21   possibility of an order that remedies such suppression of evidence being issued by the presiding

                                                          22   judge is not an unfair prejudice to the suppressing client and would not justify transferring the

                                                          23   assessment or withdrawal to another judicial officer.

                                                          24           Alternatively, another mandatory basis requiring a motion to withdraw would be if

                                                          25   counsel learned that the client, Mr. Abhyanker, had given perjured testimony. Cal. R. Prof.

                                                          26   Conduct 5-200 (“a member [] shall employ . . . such means only as are consistent with truth: and

                                                          27   “shall not seek to mislead . . . by an artifice or false statement of fact . . . “); accord Cal. Bus. &

                                                          28   Prof. Code § 6068; see State Bar, Standing Committee on Professional Responsibility and
                                                               NEXTDOOR.COM’S OPPOSITION TO
                                                               MOTION TO WITHDRAW BY COUNSEL                       3                       CASE NO. 3:12-cv-05667-EMC
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                                                           1   Conduct, Formal Opinion No. 1983-74. An attorney aware of perjured testimony that a client

                                                           2   will not recant may move to withdraw without disclosing the perjurious testimony. Id. If the

                                                           3   court denies permission to withdraw, counsel must “not thereafter rely upon or refer to any of the

                                                           4   perjured testimony” and must conduct the remainder of the proceeding as if such testimony had

                                                           5   been stricken from the record. Id.

                                                           6            Here, if the basis for withdrawal includes perjury, this Court administering this case

                                                           7   should know that fact, even though counsel may not reveal which testimony was perjurious. The

                                                           8   Court may conclude that the safest way to proceed is for Moving Counsel to remain in the case

                                                           9   (since that counsel, at least, will be duty bound not to repeat the perjury, unlike subsequent

                                                          10   counsel, which may not be aware that it is perjury). Or the Court may condition withdrawal of

                                                          11   Moving Counsel on disclosure of the perjured nature of testimony and concerns about it to

                                                          12   subsequent counsel, in order to ensure that it is not further repeated. A judicial officer unfamiliar
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                                                          13   with this action is not in an equivalent position to impose appropriate conditions without the
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                                                          14   context of this action.

                                                          15            There may be additional reasons for mandatory withdrawal. But regardless of what they

                                                          16   might be, Nextdoor.com respectfully suggests that effective judicial administration will benefit if

                                                          17   conditions to be placed on withdrawal comport with and respond to the reasons that withdrawal is

                                                          18   being requested. Only by garnering a sufficient understanding of the reasons compelling a

                                                          19   motion to withdraw can the Court ensure that misconduct by Mr. Abhyanker does not continue to

                                                          20   inure to the detriment of Mr. Abhyanker’s opponent.

                                                          21   II.      MOVING COUNSEL’S WITHDRAWAL, IF PERMITTED, SHOULD BE
                                                                        CONDITIONED ON COMPLETION OF DISCOVERY BY MR. ABHYANKER
                                                          22
                                                                        A.     Mr. Abhyanker Has A Demonstrated History Of Non-Compliance With
                                                          23                   Discovery Obligations.
                                                          24            It is has become abundantly clear that Mr. Abhyanker cannot be relied upon to comply

                                                          25   with his discovery obligations. Discovery from third parties and questioning of Mr. Abhyanker

                                                          26   have identified hundreds of highly relevant documents that Mr. Abhyanker has not produced, as

                                                          27

                                                          28
                                                               NEXTDOOR.COM’S OPPOSITION TO
                                                               MOTION TO WITHDRAW BY COUNSEL                      4                     CASE NO. 3:12-cv-05667-EMC
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                                                           1   well as his failure to preserve innumerable records critical to this action.3 During his deposition,

                                                           2   as document after document was presented to him, his Moving Counsel appeared stunned at their

                                                           3   existence and at their content. Kelly Decl. ¶ 5. Nextdoor.com discovered compelling evidence

                                                           4   that important documents—including records presented to the Court and relied upon by Mr.

                                                           5   Abhyanker in opposition to summary judgment—had been altered or fabricated. See Kelly Decl.

                                                           6   ¶ 3. As a result, in the Joint Discovery Letter filed on June 9, 2014 [Dkt. 213], Nextdoor.com

                                                           7   requested that the Court immediately order that Mr. Abhyanker and his counsel sequester,

                                                           8   preserve and produce for forensic copying, all data relating to this action. As part of that letter,

                                                           9   Nextdoor.com laid out the basis for its assertion of Mr. Abhyanker’s untrustworthiness. Dkt. 213,

                                                          10   Exh. A.

                                                          11          In response to this concrete proof of their client’s malfeasance, and his withdrawal of all

                                                          12   claims on the record at his June 7 deposition, Moving Counsel did not even attempt to dispute in
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                                                          13   the June 9 Letter the need to sequester computers, hard drive email accounts and other document
                                          SAN FRANCISCO




                                                          14   repositories. They stipulated to the necessity of doing so, and Judge Cousins so ordered. Dkt.

                                                          15   223. Indeed, it was only then that counsel (not Mr. Abhyanker himself) first undertook to collect

                                                          16   and preserve all of these media of their client, which counsel now state comprise over a terabyte

                                                          17   of data. Kelly Decl, ¶ 6. However, those data have still not been searched, nor have their

                                                          18   relevant contents been assessed or produced in this action. Id. Rather, two days after the June 9

                                                          19   Joint Letter was filed, Moving Counsel filed this Motion to withdraw.

                                                          20          In light of the serious (and acknowledged) risk that Mr. Abhyanker has and may continue

                                                          21   to engage in improper fabrication, spoliation and suppression of evidence, continued supervision

                                                          22   of Mr. Abhyanker’s production by Moving Counsel through the close of discovery is essential to

                                                          23   provide any possibility that discovery will be completed and to avoid undue prejudice to

                                                          24
                                                               3
                                                          25     The documents not preserved in this case include, for starters, (i) the actual computer drive from
                                                               which Mr. Abhyanker claims the Benchmark Diligence CD—including references to Lorelei
                                                          26   found in no other documents—was generated in December, 2013; (ii) the flash drive or CD used
                                                               to transfer the files purportedly reflecting the Diligence CD from the hard drive from which it was
                                                          27   “recovered” to Mr. Abhyanker and others; (iii) the records of the edirectree.com website, which
                                                               Mr. Abhyanker alleged reflected use of the NEXTDOOR name before Nextdoor.com’s launch,
                                                          28   and which Mr. Abhyanker claims was deleted in 2012.
                                                               NEXTDOOR.COM’S OPPOSITION TO
                                                               MOTION TO WITHDRAW BY COUNSEL                     5                       CASE NO. 3:12-cv-05667-EMC
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                                                           1   Nextdoor.com. See BSD, Inc. v. Equilon Enterprises, LLC, No. C 10-5223 SBA, 2013 WL

                                                           2   942578 at *1 (N.D. Cal. March 11, 2013) (“Courts consider several factors when considering a

                                                           3   motion for withdrawal, including: (1) the reasons counsel seeks to withdraw; (2) the possible

                                                           4   prejudice that withdrawal may cause to other litigants; (3) the harm that withdrawal might cause

                                                           5   to the administration of justice; and (4) the extent to which withdrawal will delay resolution of the

                                                           6   case.”); Irwin v. Mascott, No. C 97-4737 JL, 2004 U.S. Dist. LEXIS 28264 at *3, 9 (N.D. Cal.

                                                           7   Dec. 1, 2004) (counsel’s motion to withdraw denied due in part to consideration of potential

                                                           8   prejudice to non-moving party).

                                                           9           B.     Counsel For Abhyanker Should Not Withdraw Until They Have Completed
                                                                              Mr. Abhyanker’s Production Of Records Relevant To Nextdoor.com’s
                                                          10                  Remaining Claims.

                                                          11           The Court has ordered Mr. Abhyanker to provide discovery relating to Nextdoor.com’s

                                                          12   affirmative claims, including questions of bad faith related to those claims. Dkt. 241. As
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                                                          13   Judgment has already been entered on Nextdoor.com’s claim that it is the owner of the
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                                                          14   NEXTDOOR mark (Dkt. 193) there are two unresolved claims remaining: Nextdoor.com’s

                                                          15   Count III for Cyberpiracy, in violation of 15 U.S.C.A. §1125(D)(1) (the “ACPA Claim”); and

                                                          16   Nextdoor.com’s Count IV for infringement of its rights in the NEXTDOOR mark, in violation of

                                                          17   15 U.S.C.A. § 1125 (A). Discovery on these two remaining claims has been outstanding since

                                                          18   April, 2013,4 and remains anything but complete. Though it appears that Moving Counsel have

                                                          19   now, belatedly, attempted to collect the universe of documents, Mr. Abhyanker has yet to search

                                                          20   that universe or make a substantive production from it, despite being obligated to do so by the

                                                          21   Federal Rules; having stipulated to do so [Dkt. No. 198]; and having sworn under oath (as

                                                          22   ordered by the Court) that he had done so.5 See Kelly Decl. ¶ 4. Indeed, it came to light last

                                                          23   4
                                                                 Nextdoor.com served its first document requests and interrogatories about these trademark
                                                               issues—as to which discovery was never stayed—on April 24, 2013. Kelly Decl. ¶ 8.
                                                          24   Subsequent requests were served in January, April, May and June, 2014. Id.
                                                               5
                                                          25     Mr. Abhyanker’s assertions that he has produced “hundreds of thousands of documents” is
                                                               based on Nextdoor.com’s discovery of— and insistence in May, 2014, on turnover of—a copy of
                                                          26   a hard drive of that size which was identified as containing the most original version of the
                                                               Diligence CD. That hard drive was never reviewed by Mr. Abhyanker for responsive documents
                                                          27   (despite his prior certification he had done so in December, 2013) nor has Nextdoor.com been
                                                               given unfettered access to it. In all events, that drive does not purport to be a complete collection
                                                          28   of records, just incidental materials purportedly “found” on December, 5, 2013.
                                                               NEXTDOOR.COM’S OPPOSITION TO
                                                               MOTION TO WITHDRAW BY COUNSEL                     6                      CASE NO. 3:12-cv-05667-EMC
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                                                           1   month that Mr. Abhyanker had never even conducted a full collection and search of all of his

                                                           2   various email accounts. Kelly Decl. ¶ 4.

                                                           3          Focused discovery should be completed before Moving Counsel’s withdrawal (if

                                                           4   withdrawal is permitted), and a process is in place that permits that completion. Despite Mr.

                                                           5   Abhyanker’s failure to collect or produce relevant documents, and his misrepresentations about

                                                           6   his production efforts to Nextdoor.com and the Court, Nextdoor.com has, in good faith, refined

                                                           7   and substantially narrowed its requests based on the continued narrowing of the live issues in the

                                                           8   case. The results of this narrowing were reflected in “Document Production Guidelines”

                                                           9   (“Guidelines”) filed in this case as Docket No. 232. Kelly Decl. ¶ 7. The purpose of the

                                                          10   Guidelines, which Nextdoor.com drafted and modified in light of feedback from Counsel for Mr.

                                                          11   Abhyanker and Judge Cousins, was to design searches that were narrow enough to only hit on

                                                          12   documents likely to be responsive to issues that remain live in the case. Nextdoor.com and
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                                                          13   Moving Counsel contemplated that the Guidelines would be executed by a third-party vendor on
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                                                          14   the document repositories that have now finally been sequestered from Mr. Abhyanker to prevent

                                                          15   his further tampering and spoliation. Dkt. 232. But that search will then need to be reviewed, its

                                                          16   completeness assured, and a production made. Given the grave and ongoing concerns regarding

                                                          17   Mr. Abhyanker’s actions, and his demonstrated capacity for fabrication and spoliation of

                                                          18   evidence, MovingCounsel’s continued participation and supervision is necessary to ensure

                                                          19   compliance with Mr. Abhyanker’s ongoing discovery obligations and to ensure that

                                                          20   Nextdoor.com is not further harmed or prejudiced by Mr. Abhyanker’s actions.

                                                          21          C.      Moving Counsel Should Be Required To Supervise The Narrow Searches Set
                                                                              Forth In The Document Production Guidelines [Dkt. 232].
                                                          22

                                                          23          The scope of discovery duties that should be required of Moving Counsel prior to any
                                                          24   withdrawal parallel the scope of discovery sought through the Guidelines relevant to the
                                                          25   remaining claims. Nextdoor.com’s cyberpiracy claim is based on Mr. Abhyanker’s bad faith
                                                          26   registration and use of the www.nexdoor.cm domain name. It is premised on the theory that Mr.
                                                          27   Abhyanker fabricated prior use of the NEXTDOOR mark, as well as fabricating a basis to claim
                                                          28   his personal ownership and standing to assert that prior use, all in order to attempt to assert
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                                                           1   priority over Nextdoor.com. His efforts included registering the www.nextdoor.cm domain and

                                                           2   using Nextdoor.com’s mark on that and other sites in order to create the illusion that the mark

                                                           3   was his, when in fact, he knew it was not. And his efforts included fabricating false assignments

                                                           4   to himself of any rights of the prior entities LegalForce, Inc. and Fatdoor, Inc. to support his claim

                                                           5   of priority.

                                                           6           To prevail on the cybersquatting claim, Nextdoor.com must show that Mr. Abhyanker

                                                           7   acted in bad faith in his registration and use of a domain name (www.nextdoor.cm) that is

                                                           8   identical or confusingly similar to the NEXTDOOR mark. 15 U.S.C. § 1125(d). There is no real

                                                           9   dispute that www.nextdoor.cm is identical or confusingly similar to the NEXTDOOR mark.

                                                          10   Thus, the main live issue on this claim is whether Mr. Abhyanker acted in bad faith. Lahoti v.

                                                          11   VeriCheck, Inc., 586 F.3d 1190, 1202 (9th Cir. 2009) (“A finding of ‘bad faith’ is an essential

                                                          12   prerequisite to finding an ACPA violation”).
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                                                          13           According to the ACPA, a number of factors may be considered in assessing the bad faith
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                                                          14   of a domain registrant, including: the registrant’s (Mr. Abhyanker’s) trademark or intellectual

                                                          15   property rights, or lack thereof, in the domain name at issue; his prior use of the domain name in

                                                          16   connection with the bona fide offering of goods or services, or lack thereof; and his intent to

                                                          17   divert customers from Nextdoor.com’s online location that could harm the goodwill represented

                                                          18   by the NEXTDOOR mark, for commercial gain or with the intent to tarnish or disparage the

                                                          19   mark. 15 U.S.C.A. §1125(D)(1). These factors are not the exclusive indicia of bad faith, as proof

                                                          20   will vary from case to case. Interstellar Starship Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 946 (9th

                                                          21   Cir.2002) (factors to be considered in a claim for bad faith under the ACPA are unique to the

                                                          22   circumstances of the case). Indeed, as this District has recognized, malfeasance during the

                                                          23   conduct of litigation can, itself, demonstrate bad faith. Verizon California Inc. v. Onlinenic, Inc.,

                                                          24   No. C 09-2832 JF (RS), 2009 WL 2706393 at *3, 6 (N.D. Cal. Aug. 25, 2009) (considering

                                                          25   behavior evidencing an attitude of contempt towards the court or the proceedings, including

                                                          26   sanctionable conduct such as noncompliance with court orders and deceptive behavior, as

                                                          27   supporting an award of statutory damages for cybersquatting).

                                                          28
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                                                           1          Nextdoor.com’s other remaining claim, for trademark infringement, is focused on

                                                           2   Mr. Abhyanker’s use of the name and term “NEXTDOOR” not only within the

                                                           3   www.nextdoor.cm website, but also on other or his websites which used the term and feigned

                                                           4   affiliation with Nextdoor.com, and on his use of “Nextdoor™ Neighbors” phrase on his separate

                                                           5   eDirectree.com Site, all in an attempt to feign prior rights in the NEXTDOOR mark. Again, Mr.

                                                           6   Abhyanker’s defense, if he has one, appears to consist of his claim that he was entitled to use the

                                                           7   mark due to prior use by LegalForce, Inc. and Fatdoor, Inc., and their purported assignments to

                                                           8   him.

                                                           9          Nextdoor.com’s discovery requests, as narrowed by the Guidelines [Dkt. 232] bear

                                                          10   directly on these issues:

                                                          11          1.      Documents and communications from 2012 to the present (See Guidelines,

                                                          12   Dkt. 232, ¶ 4-e): Documents dated from this period, virtually none of which have been produced
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                       ATTORNEYS AT LAW




                                                          13   by Mr. Abhyanker, are highly relevant to Nextdoor.com’s affirmative claims. This was the time
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                                                          14   frame during which Mr. Abhyanker registered for the www.nextdoor.cm domain name, and used

                                                          15   the NEXTDOOR mark on that and other sites, including edirectree.com, in order to fabricate his

                                                          16   alleged use of the mark before Nextdoor.com’s launch in October 2011. This includes his

                                                          17   fabrication of a purported use of the term “Nextdoor™ Neighbors” on eDiretree.com upon which

                                                          18   he claims priority to the time prior to Nextdoor.com’s launch.

                                                          19          2.      Documents relating to LegalForce assignment to Mr. Abhyanker (Guidelines,

                                                          20   Dkt. 232 ¶ 3(g), 4(b), 4(c), 4(h), 4(i)): As noted, Mr. Abhyanker has claimed that LegalForce

                                                          21   used the name NEXTDOOR as early as 2006, and claims priority to this use, based on a

                                                          22   purported Assignment Agreement to Mr. Abhyanker of “all residual assets” of LegalForce dated

                                                          23   June 4, 2007. See Second Amended Counterclaims, Dkt. 132 ¶¶ 99, 100, 112, 115, and 130.

                                                          24   Nextdoor.com claims that this Assignment Agreement—which miraculously appeared in a .pdf

                                                          25   dated May, 2014, with no prior version to be found, and which is inconsistent with other

                                                          26   documents reflecting a different disposition of Legalforce’s assets—is fabricated. This

                                                          27   fabrication would demonstrate Mr. Abhyanker’s knowledge that, without fabricating an

                                                          28   assignment, he had no rights in the NEXTDOOR mark, and no good faith basis to use the
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                                                           1   NEXTDOOR mark. The evidence sought of fabrication includes discovery about:

                                                           2                  a)      The letterhead on the Assignment Agreement (which is unusually pixilated

                                                           3          and was never apparently used by LegalForce on any other documents) (id., ¶ 4(i));

                                                           4                  b)      The creation of the Assignment Agreement, which Nextdoor.com believes

                                                           5          was created during the litigation to back-fill the lack of any actual basis for Mr.

                                                           6          Abhyanker’s claim of ownership (id., ¶ 4(h), and communications, if any, between Mr.

                                                           7          Abhyanker and his assistant, Ravi Soni, about the creation of that document (i., ¶ 3(g));

                                                           8                  c)      The apparent actual disposition of LegalForce’s assets, which include a

                                                           9          settlement with an investor named Myers (id., ¶ 3(b), and a tax deduction by Mr.

                                                          10          Abhyanker that would reflect that he always knew he did not actually receive an

                                                          11          assignment all of Legalforce’s assets, had had no basis for his claim of priority derivative

                                                          12          of Legalforce. (id., ¶ 4(c)).
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                                                          13          3.      Documents reflecting fabrication of uses of “NEXTDOOR” by Abhyanker. (See
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                                                          14   Id. ¶ 3(b) 3(g), 4(a), 4(d), 4(j), and 4(k)). Mr. Abhyanker’s efforts to fabricate earlier uses of the

                                                          15   term NEXTDOOR than he actually made also evidence his lack of rights in the mark and his bad

                                                          16   faith in asserting otherwise. If he had actual rights, why would he fabricate evidence of use that

                                                          17   did not otherwise exist? This evidence, which Moving Counsel should be required to ensure is

                                                          18   produced, includes:

                                                          19                  a)      evidence as to the creation of the Diligence CD that was “recovered” in

                                                          20          December 2013, and its “Lorelei PowerPoint,” which Nextdoor.com asserts were

                                                          21          fabricated. The PowerPoint included references to NEXTDOOR and bids being placed

                                                          22          for that domain (id. ¶ 4(k)). Nextdoor.com also seeks the flash drives or physical CDs

                                                          23          that transferred the files that comprised that Diligence CD once they were purportedly

                                                          24          “recovered,” (id,. ¶ 3(b)), communications with Mr. Abhyanker’s assistant about the CD

                                                          25          (id., ¶ 3(g)) and searches for the other files that comprised the Diligence CD to prove its

                                                          26          origin and that it was a fabrication (id,. ¶ 4(j)).

                                                          27                  b)      evidence of Mr. Abhyanker’s creation of a Nextdoor.com mock-up that he

                                                          28          claims was from 2006, but appears to be based on a Zillow webpage that did not even
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                                                           1           exist as of that date—again, showing fabrication of evidence that defeats prior use of the

                                                           2           trademark or good faith in doing so (id., ¶ 4(a)).

                                                           3           Fabrication or spoliation of documents to sustain a claim or defense is the essence of bad

                                                           4   faith. Such fabrication also substantiates Mr. Abhyanker’s knowledge that the true evidence did

                                                           5   not support priority of use in the mark, nor his ownership of any such rights by assignment.

                                                           6   Nextdoor.com’s ability to collect this evidence for its affirmative claims should therefore not be

                                                           7   prejudiced by Mr. Abhyanker’s Counsel’s withdrawal, as it is clear that Mr. Abhyanker cannot be

                                                           8   trusted to execute such searches without their supervision.

                                                           9                                              CONCLUSION
                                                          10           For the reasons set forth above, Nextdoor.com respectfully requests that should the Court
                                                          11   determine that Moving Counsel’s withdrawal from this matter is appropriate, that such
                                                          12   withdrawal be conditioned upon their continued supervision over completion of discovery from
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                                                          13   Mr. Abhyanker. Further, Nextdoor.com respectfully requests that any such withdrawal be
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                                                          14   effective at the later of 30 days or submission of certification signed by each of Moving Counsel
                                                          15   that: (i) all responsive discovery known to them and that had previously been withheld or
                                                          16   suppressed has been produced or logged as privileged; and (ii) all discovery previously promised
                                                          17   by counsel or required by any order of Judge Cousins or the Court has been completed. Finally,
                                                          18   Nextdoor.com requests that, in the event it deems Moving Counsel’s withdrawal from this matter
                                                          19   to be appropriate, that it also order Mr. Abhyanker to obtain new counsel within 30 days of its
                                                          20   order, so as not to delay further this action.
                                                          21                                                    Respectfully,
                                                          22   Dated: June 27, 2014                             FENWICK & WEST LLP
                                                          23

                                                          24                                                    By: /s/ Laurence F. Pulgram
                                                                                                                    Laurence F. Pulgram
                                                          25
                                                                                                                Attorneys for Plaintiff and Counterdefendant
                                                          26                                                    NEXTDOOR.COM, INC.
                                                          27

                                                          28
                                                               NEXTDOOR.COM’S OPPOSITION TO
                                                               MOTION TO WITHDRAW BY COUNSEL                      11                     CASE NO. 3:12-cv-05667-EMC

				
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