1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRAS LAW OFFIC E, PLLC 3961 E. CHANDLER BLVD., #111 - 243 PHOENIX , ARIZONA 85048 David S. Gingras, #021097 Gingras Law Office, PLLC 3961 E. Chandler Blvd., #111-243 Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 [email protected]Attorney for Plaintiff/Counterdefendant Xcentric Ventures, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA XCENTRIC VENTURES, LLC, an Arizona limited liability company, Plaintiff, v. LISA JEAN BORODKIN et al., Defendants. RAYMOND MOBREZ, Counterclaimant, v. XCENTRIC VENTURES, LLC and EDWARD MAGEDSON, Counterdefendants. Case No.: 11-CV-1426-GMS AFFIDAVIT OF DAVID S. GINGRAS IN SUPPORT OF PLAINTIFF’S RESPONSE TO NON-PARTY LISA BORODKIN’S MOTION FOR LEAVE TO FILE MOTION FOR PROTECTIVE ORDER AND MOTION TO QUASH AND FOR SANCTIONS I, David S. Gingras declare as follows: 1. My name is David Gingras. I am a United States citizen, a resident of the State of Arizona, am over the age of 18 years, and if called to testify in court or other proceeding I could and would give the following testimony which is based upon my own personal knowledge unless otherwise stated. Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 1 of 22
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David S. Gingras, #021097Gingras Law Office, PLLC3961 E. Chandler Blvd., #111-243Phoenix, AZ 85048Tel.: (480) 668-3623Fax: (480) [email protected]
Attorney for Plaintiff/CounterdefendantXcentric Ventures, LLC
AFFIDAVIT OF DAVID S. GINGRAS INSUPPORT OF PLAINTIFF’S RESPONSETO NON-PARTY LISA BORODKIN’SMOTION FOR LEAVE TO FILEMOTION FOR PROTECTIVE ORDERAND MOTION TO QUASH AND FORSANCTIONS
I, David S. Gingras declare as follows:
1. My name is David Gingras. I am a United States citizen, a resident of the
State of Arizona, am over the age of 18 years, and if called to testify in court or other
proceeding I could and would give the following testimony which is based upon my own
personal knowledge unless otherwise stated.
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 1 of 22
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2. I am an attorney licensed to practice law in the States of Arizona and
California, I am an active member in good standing with the State Bars of Arizona and
California and I am admitted to practice and in good standing with the United States
District Court for the District of Arizona and the United States District Court for the
Northern, Central, and Eastern Districts of California.
3. I represented Xcentric Ventures, LLC and Edward Magedson in the lawsuit
filed against them in California entitled Asia Economic Institute, LLC, et al. v. Xcentric
Ventures, LLC, et al., Case No. 10-cv-1360 (the “California Litigation”).
4. Attached hereto as Exhibit A is a highlighted copy of an email I received
from Lisa Borodkin on July 15, 2010.
5. Attached hereto as Exhibit B is a true and correct copy of discovery
responses I received from Mr. Mobrez in this case dated December 6, 2012.
6. Attached hereto as Exhibit C are certain highlighted portions of the
deposition transcript of Raymond Mobrez dated December 11, 2012.
7. Attached hereto as Exhibit D are certain highlighted portions of the
deposition transcript of Iliana Llaneras dated December 11, 2012.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct.
EXECUTED ON: December 28, 2012.
GINGRAS LAW OFFICE, PLLC/S/ David S. GingrasDavid S. GingrasAttorney for Xcentric Ventures, LLC
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CERTIFICATE OF SERVICE
I hereby certify that on December 28, 2012 I electronically transmitted the attached
document to the Clerk’s Office using the CM/ECF System for filing, and for transmittal
of a Notice of Electronic Filing to the following:
John S. Craiger, Esq.David E. Funkhouser III, Esq.
Krystal M. Aspey, Esq.Quarles & Brady LLP
One Renaissance SquareTwo North Central Avenue
Phoenix, Arizona 85004-2391Attorney for Lisa J. Borodkin
Raymond MobrezIliana LlanerasPO BOX 3663
Santa Monica, CA 90408Defendants Pro Se
And a courtesy copy of the foregoing delivered to:HONORABLE G. MURRAY SNOW
United States District CourtSandra Day O’Connor U.S. Courthouse, Suite 622
401 West Washington Street, SPC 80Phoenix, AZ 85003-215
/s/David S. Gingras
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 3 of 22
Exhibit A
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 4 of 22
As you know, David, Daniel and I were all on the call with the Court on Tuesday, July 13, 2010 and were heard at length.
The Court was kind enough to stay past normal Court hours to hear each side thoroughly, including each parties' understanding of the Court's oral comments from Monday and your 11th-hour request to continue the mandatory settlement conference originally scheduled for yesterday.
After hearing oral argument on all the issues and the complete background and context from all counsel, the Court worked out a compromise.
We believe the matters scheduled for Tuesday, July 20 serve three goals:
(1) enabling the parties to refine and evaluate any allegations that you may later contend are not supported by investigation, to further assist in evaluating the case for settlement,
(2) having an in-person, frank settlement discussion between the clients that may hasten the early settlement of this case, while accommodating your client's request to be excused from the settlement conference originally set for Wednesday, July 14, and
(3) allowing you to take our client's deposition, at our expense, with a waiver of attorney-client privilege on any grounds that support your long and continuing history of threatening to sue Plaintiffs' counsel for malicious prosecution and abuse of process, to give Mr. Blackert and myself some peace of mind and allow us to focus on the merits.
We have already booked travel arrangements and engaged a court reporting service based on that compromise.
You had the opportunity to appear and be heard by Magistrate Walsh. Apparently, you declined. According to our last discussion with Mr. Gingras, he has it in his calendar and can obtain space at your law firm.
Therefore, we would like to continue as agreed.
Lisa
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 5 of 22
DG
Highlight
Exhibit B
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Exhibit C
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 14 of 22
151 KALMUS DRIVE, SUITE L1 COSTA MESA, CA 92626
HAHN & BOWERSOCK 800-660-3187 FAX 714-662-1398
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Xcentric Ventures, LLC, an ) Case No.
Arizona limited liability ) 11-CV-1426-GMS
company, )
)
Plaintiff, )
)
v. )
)
Lisa Jean Borodkin, et al., )
)
Defendants. )
______________________________)
Raymond Mobrez, )
)
Counterclaimant, )
)
v. )
)
Xcentric Ventures, LLC, and )
Edward Magedson, )
)
Counterdefendants. )
)
______________________________)
VIDEOTAPED DEPOSITION OF RAYMOND MOBREZ
Los Angeles, California
Tuesday, December 11, 2012
Reported by:
Carmen R. Sanchez
CSR No. 5060
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 15 of 22
151 KALMUS DRIVE, SUITE L1 COSTA MESA, CA 92626
HAHN & BOWERSOCK 800-660-3187 FAX 714-662-1398
2
1 UNITED STATES DISTRICT COURT2 DISTRICT OF ARIZONA3
4 Xcentric Ventures, LLC, an ) Case No. Arizona limited liability ) 11-CV-1426-GMS
5 company, ) )
6 Plaintiff, ) )
7 V. ) )
8 Lisa Jean Borodkin, et al., ) )
9 Defendants. ) ______________________________)
10 Raymond Mobrez, ) )
11 Counterclaimant, ) )
12 v. ) )
13 Xcentric Ventures, LLC, and ) Edward Magedson, )
14 ) Counterdefendants. )
15 ) ______________________________)
16
17 Videotaped deposition of RAYMOND MOBREZ,18 taken on behalf of Plaintiff/Counterdefendant, at19 355 South Grand Avenue, Suite 2450, Los Angeles,20 California, beginning at 2:02 p.m. and ending at21 4:03 p.m., on Tuesday, December 11, 2012,22 before Carmen R. Sanchez, Certified Shorthand23 Reporter No. 5060.24
25
3
1 APPEARANCES:2 For Plaintiff/Counterdefendant Xcentric Ventures,
LLC:3
GINGRAS LAW OFFICE, PLLC4 BY: DAVID S. GINGRAS, ESQ.
3941 E. Chandler Boulevard5 Suite 106-243
Phoenix, Arizona 850486 Telephone: (480) 668-3623
Facsimile: (480) 248-31967 E-mail: [email protected] In Propria Persona:9 RAYMOND MOBREZ
P.O. Box 366310 Santa Monica, California 9040811 Also Present:12 David Bradley
21 counterdefendant, in addition to Edward Magedson,
22 who is a counterdefendant.
23 THE WITNESS: Raymond Mobrez. I'm a
24 defendant.
25 MS. LLANERAS: Iliana Llaneras, defendant.
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 16 of 22
151 KALMUS DRIVE, SUITE L1 COSTA MESA, CA 92626
HAHN & BOWERSOCK 800-660-3187 FAX 714-662-1398
66
1 Look at the top of page 4, if you2 turn the page. There's an explanation that3 Lisa Borodkin gave (as read):4 "The public relies on these5 statements, believes them to be true6 and infers that non-CAP members are not7 as committed to excellent customer service8 as CAP members."9 Do you see that?
10 A Yes.11 Q Was that statement intended to12 reflect your position, or did it reflect your13 position?14 A I think I just said almost similar15 to that.16 Q You sure did. That's why --17 A And I was not -- I had never seen18 this document, and I don't want to convert this19 more than what it is. I don't want to convert this20 to a psychic friends sitting and talking, and21 that's exactly what it is.22 Q Well, so you're saying that you23 agree with what Ms. Borodkin wrote here?24 A I'm not agreeing with anything. I'm25 just saying that's what I see it there, and I
67
1 explained to you a little bit more in-depth, and
2 you told me to turn the page, and it turned out to
3 be exactly what it is, almost.
4 Q Okay. So you believe that
5 Ripoff Report's scheme to defraud through the wires
6 by including false statements in CAP investigations
7 that businesses are safe, reliable, or otherwise
8 can be trusted caused harm to you because the
9 general public believed those comments and inferred
10 that non-CAP members, like yourself, are therefore
11 not as committed to excellent customer service as
12 CAP members? Is that an accurate summary of your
13 position?
14 A I can say one more time that
15 Ripoff Report, it appears to be a either one-man
16 show with some lawyers, or it's one man with a
17 couple of friends and partners, and it doesn't have
18 the -- it gives the impression of Better Business
19 Bureau and others that they have 10,000 employees,
20 but it doesn't do, except that it's just -- I think
21 this is the facade for the business model that
22 Ripoff Report is in.
23 Q Okay.
24 Other than what you just said, can
25 you tell me any other reason that you believe that
68
1 you were harmed by the comment or alleged false
2 statement in Bullet Point No. 7 regarding CAP
3 investigation reports not being accurate?
4 A This is all-inclusive. I cannot
5 dissect the one statement or one sentence out and
6 say, "What would you say about that?" So it's, as a
7 whole, it explains some legal theory on legal
8 issues that I am not in a position to analyze that.
9 Q Okay.
10 Do you agree that you never did any
11 business with a CAP member? You never bought any
12 products or services from CAP members?
13 A No, I didn't.
14 Q Okay. So you weren't damaged in
15 that way, were you?
16 A No, I don't think so.
17 MR. GINGRAS: Okay. Let's take five.
18 THE VIDEOGRAPHER: We're going off the
19 record. The time is 3:27 p.m.
20 (A recess was taken.)
21 THE VIDEOGRAPHER: Back on the record. The
22 time is 3:59 p.m. [sic].
23 BY MR. GINGRAS:
24 Q Raymond, before the break, I think
25 we were talking about an E-mail, dated
69
1 July 15th, 2010, which is Exhibit 10 in your
2 booklet there, which is from Lisa Borodkin to some
3 people; and this E-mail kind of sets forth -- the
4 subject line is: "Laymen's Description of theory
5 of RICO Wire Fraud," and I think we talked about
6 the fact that you are a not a lawyer, and you don't
7 understand all these things. But other than what's
8 in this E-mail, can you generally in layman's terms
9 tell me what you think was the basis of your RICO
10 wire fraud claim against Xcentric and Magedson?
11 A That's the only area I can tell you
12 that I relied on our attorneys' research and
13 paperwork and homework and their decision to --
14 based on what they heard from me. I rely on them.
15 Q You relied on your lawyers' advice.
16 You told them some facts and then asked them
17 whether those facts would be sufficient to support
18 a wire fraud claim?
19 A Yes.
20 Q And they told you, "Yes"?
21 A That's what it is. Is it -- is that
22 the wire fraud continued, or what happened? I
23 don't know. I apologize.
24 Q I don't know if I understand what
25 you're asking me. But in any event, trying to move
in this E-mail, can you generally in layman's terms
tell me what you think was the basis of your RICO9
wire fraud claim against Xcentric and Magedson?10
A That's the only area I can tell A That's the only area I can tell you11
that I relied on our attorneys' research and12
paperwork and homework and their decision to --13
based on what they heard from me. I rely on them.14
Q You relied on your lawyers' advi Q You relied on your lawyers' advice.15
You told them some facts and then asked them16
whether those facts would be sufficient to support17
a wire fraud claim?18
A Yes. A Yes.19
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 17 of 22
Exhibit D
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 18 of 22
151 KALMUS DRIVE, SUITE L1 COSTA MESA, CA 92626
HAHN & BOWERSOCK 800-660-3187 FAX 714-662-1398
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Xcentric Ventures, LLC, an ) Case No.
Arizona limited liability ) 11-CV-1426-GMS
company, )
)
Plaintiff, )
)
v. )
)
Lisa Jean Borodkin, et al., )
)
Defendants. )
______________________________)
Raymond Mobrez, )
)
Counterclaimant, )
)
v. )
)
Xcentric Ventures, LLC, and )
Edward Magedson, )
)
Counterdefendants. )
)
______________________________)
VIDEOTAPED DEPOSITION OF ILIANA LLANERAS
Los Angeles, California
Tuesday, December 11, 2012
Reported by:
Carmen R. Sanchez
CSR No. 5060
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 19 of 22
151 KALMUS DRIVE, SUITE L1 COSTA MESA, CA 92626
HAHN & BOWERSOCK 800-660-3187 FAX 714-662-1398
2
1 UNITED STATES DISTRICT COURT2 DISTRICT OF ARIZONA3
4 Xcentric Ventures, LLC, an ) Case No. Arizona limited liability ) 11-CV-1426-GMS
5 company, ) )
6 Plaintiff, ) )
7 v. ) )
8 Lisa Jean Borodkin, et al., ) )
9 Defendants. ) ______________________________)
10 Raymond Mobrez, ) )
11 Counterclaimant, ) )
12 v. ) )
13 Xcentric Ventures, LLC, and ) Edward Magedson, )
14 ) Counterdefendants. )
15 ) ______________________________)
16
17 Videotaped deposition of ILIANA LLANERAS,18 taken on behalf of Plaintiff/Counterdefendant, at19 355 South Grand Avenue, Suite 2450, Los Angeles,20 California, beginning at 9:28 a.m. and ending at21 1:21 p.m., on Tuesday, December 11, 2012,22 before Carmen R. Sanchez, Certified Shorthand23 Reporter No. 5060.24
25
3
1 APPEARANCES:2 For Plaintiff/Counterdefendant Xcentric Ventures,
LLC:3
GINGRAS LAW OFFICE, PLLC4 BY: DAVID S. GINGRAS, ESQ.
3941 E. Chandler Boulevard5 Suite 106-243
Phoenix, Arizona 850486 Telephone: (480) 668-3623
Facsimile: (480) 248-31967 E-mail: [email protected] In Propria Persona:9 RAYMOND MOBREZ
P.O. Box 366310 Santa Monica, California 9040811 Also Present:12 David Bradley
Videographer13 Hahn & Bowersock Corporation14
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1 I N D E X2 WITNESS3 ILIANA LLANERAS4 Examination by: Page5 MR. GINGRAS 86
7 E X H I B I T S8 Plaintiff's Page Page
Exhibit Description Introduced Marked9
Exhibit 1 Copy of Asia v.10 ROR - Original
CA Complaint 34 17711
Exhibit 2 Copy of a series12 of Ripoff Reports;
Nos. 417493,13 423987, 457433,
502429, 564331,14 and 571232 45 17715 Exhibit 3 Copy of Declaration
of Raymond Mobrez 63 17716
Exhibit 4 Copy of Declaration17 of Iliana Llaneras 67 17718 Exhibit 5 Copy of corrected
8 time? Again, this is mid-July 2010. Did you talk
9 to Lisa about -- this is -- she's talking about the
10 settlement conference that we were going to have, I
11 think, for July 20th in Phoenix.
12 Do you remember talking to Lisa
13 about the concept of -- in Point No. 3 of her
14 E-mail she says (as read):
15 "Allowing you," meaning I guess
16 Xcentric or Maria, "to take our client's
17 deposition, at our expense, with a waiver
18 of attorney-client privilege on any grounds
19 that support your long and continuing
20 history of threatening to sue Plaintiff's
21 counsel for malicious prosecution ...."
22 Do you see that little bullet point
23 "(3)" there?
24 A Yeah, but I'm not aware of that.
25 Q Lisa never talked to you about
85
1 possibly waiving attorney-client privilege so that
2 we could take your deposition and find out more
3 information about your case?
4 A I'm not aware of that.
5 Q You're not aware that you ever had
6 that conversation with Lisa or you --
7 A I don't recall that conversation.
8 Q As we sit here today, are you
9 willing to waive attorney-client privilege to allow
10 me to find out whether or not you fully and
11 truthfully disclosed all relevant facts to your
12 counsel during the prior case?
13 A I am here in good faith to respond
14 to questions, but I am not here to waive
15 attorney-client because I'm not sure -- I'm not an
16 attorney; so I'm not sure if it's appropriate or
17 not.
18 Q Okay.
19 Have you talked to Raymond about
20 whether or not he would be willing to waive
21 attorney-client privilege?
22 A No, I haven't.
23 Q Okay.
24 Do you think Lisa sent this without
25 your permission?
initially; the decision to continue it. Is that
your position that you relied on the advice of your13
lawyers?14
15 A Yes, they were our attorneys A Yes, they were our attorneys
16 representing us.
Q Okay. Q Okay.17
Is that a defense that you're going18
to be raising in this case?19
20 A I don't know. A I don't know.
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 21 of 22
151 KALMUS DRIVE, SUITE L1 COSTA MESA, CA 92626
HAHN & BOWERSOCK 800-660-3187 FAX 714-662-1398
86
1 A I don't know. I'm not aware of this
2 E-mail or its contents; so I couldn't respond.
3 Q All right.4 Let's go back and look at Exhibit 8.5 Do you recognize this?6 A Hold on. Let me see it. It's the
7 first amended complaint?
8 Q Right. I'll tell you, this is the9 pleading that was filed in the prior California
10 case on July 27th, 2010. It's the first amended11 complaint on behalf of Asia Economic Institute,12 Raymond Mobrez, and Iliana Llaneras against13 Xcentric and others.14 Did you -- did you review this15 before it was filed?16 A I did review it briefly, yes.
17 Q Do you recall talking to your18 lawyers, either Blackert or Borodkin about this19 before it was filed?20 A We did have a discussion. We did
21 have a meeting on it.
22 Q When do you think that meeting23 occurred?24 A I don't remember exactly.
25 Q Do you remember how long the meeting
87
1 was?2 A No, I don't.
3 Q Prior to filing this, I assume that4 you're going to take the position that you fully5 and truthfully disclosed all relevant facts to your6 lawyers --7 A Yes.
8 Q -- before this was filed?9 A We did, of course.
10 Q Okay. But you're not going to allow11 me to know what those facts were that were12 disclosed?13 A I think that's attorney-client
14 privilege.
15 Q Okay. All right.16 Do you have any knowledge of who17 drafted this?18 A I think it was Lisa Borodkin.
19 Q Okay. And you said you saw a draft20 before it was filed. As we sit here today, are all21 facts in the first amended complaint true to the22 best of your knowledge?23 A I believe it is, yes. I didn't
24 draft the first one so ....
25 Q Okay.
88
1 Do you recall you, Iliana,2 personally performing any investigation before this3 was filed in July of 2010?4 A No, I didn't do any investigations.
5 Q Who did?6 A Our attorneys did the
7 investigations.
8 Q Dan and Lisa?9 A Yes.
10 Q Anyone else besides them?11 A I don't know.
12 Q Did you get -- did you get any kind13 of billing statement from the lawyers explaining14 what sort of work they were doing, things of that15 nature?16 A I don't -- I don't think so, no.
17 Q How did you know how much to pay18 them?19 A Raymond had mentioned to me --
20 Q Who --21 A -- how much.
22 Q -- wrote the checks to them?23 A Either I did or Raymond did, one or
24 -- either one of us.
25 Q And did you ever review anything
89
1 that explained the type of work that was being done
2 by your lawyers that you were paying them for?
3 A Raymond was more focused on that.
4 Q Okay.
5 Whether or not Raymond was more
6 focused on it, did you ever see anything
7 summarizing the work that was done? Sometimes --
8 not every lawyer does a billing statement, either
9 monthly or weekly or whatever; but most of them do.
10 I'm asking if you ever saw anything like that?
11 A I -- I don't think I did.
12 Q Okay.
13 Can you, as we sit here today, can
14 you explain to me the basis of your RICO wire fraud
15 claim in the first amended complaint?
16 A I'd have to object to that because I
17 think that's attorney-client privilege; so I didn't
18 draft that and ....
19 Q This document was filed with the
20 Court, and it's not privileged in any way. What
21 I'm asking you to do is tell me -- again, I know
22 you're not a lawyer. I'm not expecting you to cite
23 statutes or cases. I'm just asking you to explain
24 to me in layman's terms how you feel that Xcentric
25 or Magedson committed a wire fraud against you,
Case 2:11-cv-01426-GMS Document 183-1 Filed 12/28/12 Page 22 of 22