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The End Draws Near



 
 
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Old March 25th 09, 02:10 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess
Mr.Vidmar[_2_]
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Posts: 365
Default The End Draws Near

The response to Polgar's motion to quash. Apologies for the formatting:

DEFENDANT'S CONTINENTAL CHESS'S OPPOSITION TO PLAINTIFF'S MOTION
TO QUASH AND BRIEF IN SUPPORT
Defendant, Continental Chess Incorporated ("Defendant" and/or
"Continental"),
opposes Plaintiffs Motion to Quash Subpoena and Brief in Support, and
would respectfully
show unto the Court as follows:
INTRODUCTION
Plaintiff Susan Polgar ("Plaintiff" and/or "Polgar") has brought a
motion to quash a
subpoena for documents that the United States of America Chess
Federation, Inc. ("USCF") has
already produced to Polgar in the case of United States of America Chess
Federation, Inc. v.
Polgar, Alexander, et al., 3:08-cv-05126-MHP, currently pending in the
District Court for the
20080491.20080491/519449. J
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 4 of 23
Northern District of California (the "California Action,,).l There is
absolutely no reason why
Continental should not have these documents immediately, particularly
because they contain
information directly relevant to Continental's defense of Polgar's
claims in the Texas lawsuit.
Polgar has herself acknowledged the importance of these documents.
Hypocritically, Polgar has
served a Request for Documents on the USCF, Continental and the other
defendants in the
present action ("Texas Action"), seeking the exact same Discovery
Documents at issue. The real
reason that Polgar has brought this motion is to prevent Continental
from demonstrating Polgar's
misconduct, which is evidenced by the Discovery Documents.
Defendant vigorously disputes the characterization of the "facts" as
referenced by
Polgar. Polgar continues to try to suppress evidence, documents and
other facts of her and her
husband's wrongdoing. The Motion to Quash is yet another attempt to try
to prevent the truth
from being discovered. Plaintiff chose to file this lawsuit, and
Plaintiff should be forced to allow
Defendants to obtain the necessary discovery to rebut Plaintiff's
alleged claims.
Polgar makes out three hollow arguments about why the subpoena should be
quashed.
All three of these arguments fail on their face. First, Polgar argues
that the USCF did not provide
advance notice under California Code of Civil Procedure 1798.32 to
consumers affected by the
subpoenas before service of the subpoenas. However, this code section
only restricts information
on consumers held by government agencies, and the USCF has not served
any subpoenas on
governmental agencies. Second, Polgar argues that the USCF conducted
discovery improperly
before a conference under Federal Rule of Civil Procedure 26(f).
However, the USCF had
1 The documents at issue were produced to Polgar in California, and were
Bates labeled USCFOOOOO 1 USCF000351
("Discovery Documents"). The Discovery Documents comprise 351 pages, and
one DVD
containing data related to Polgar's website, www.chessdiscussion.com
(Bates USCF000334). Counsel for
Defendant has not seen those documents.
2 There is no California Code of Civil Procedure 1798.3. Defendant
assumes Polgar was referring to California
Civil Code section 1798.3.
20080491.20080491/519449.1 2
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 5 of 23
obtained three orders specifically permitting early discovery issued by
the San Francisco Superior
Court after a thorough review of the record. Essentially Polgar
questions the authority of this
California court. And third, Polgar argues that the USCF did not provide
advance notice of the
AOL and CrystalTech subpoenas pursuant to Federal Rules of Civil
Procedure 5 and 45.
However, the USCF did indeed provide such notice.
Polgar's real reason for her attempts to try to suppress the Discovery
Documents is that
she does not like their contents. The Discovery Documents demonstrate
that Polgar instructed
her co-conspirator Gregory Alexander ("Alexander") to hack into the
email account of Randall
Hough, a USCF board member. Further, the Discovery Documents demonstrate
that Alexander
gained unauthorized access to Hough's email account over 111 times.
After the intrusion, the
Discovery Documents demonstrate how Polgar and Alexander created a blog
for the sole purpose
of distributing the stolen confidential emails to third parties. These
allegations are very serious,
and they have attracted the attention of law enforcement. As Alexander
admitted at a recent
California hearing, the U.S. Secret Service Electronic Crimes Task Force
has executed a search
warrant on Alexander's house, and there have been federal criminal
subpoenas issued relating to
this matter out of the Northern District of California.
Despite Polgar's efforts to prevent Continental and the USCF from using
the Discovery
Documents in this action, Polgar has no legal ground to prevent such
use. Defendant's Texas
counsel has agreed to stipulate to a protective order if any of the
Discovery Documents are
indeed confidential, and thus no harm will occur if the Discovery
Documents are transferred to
Texas. Additionally, the interests of judicial economy weigh strongly in
favor of sharing
discovery between the actions, as opposed to forcing the parties to
subpoena the same entities
twice, once for the California Action and once for the Texas Action. The
Honorable Marilyn
20080491.20080491/519449.1 3
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 6 of 23
Patel in the California Action has even stated that the discovery
documents should be shared with
counsel in the Texas Action. For all of these reasons, Polgar's motion
should be denied.
PROCEDURAL HISTORY
IN THE CALIFORNIA ACTION
In late 2007, the USCF Executive Board formed a litigation committee
("Litigation
Committee"), which excluded Executive Board members Polgar and her
husband Paul Truong, to
permit confidential communications about investigation and legal
analysis related to allegations
of wrongdoing against Polgar and Truong. Thereafter, and before the USCF
filed its California
Action, the Litigation Committee became aware that emails between and
among the Litigation
Committee and its counsel had been stolen.
Of great concern to the Litigation Committee was the fact that Polgar
possessed multiple
highly confidential Litigation Committee emails. When asked how she came
into possession of
the confidential communication, Polgar, despite her fiduciary duties to
the USCF, initially
refused to identify a source and thereafter made conflicting statements
about her source for
obtaining the emails.
Because, at the time, the USCF did not know about Polgar's role in the
email theft, the
USCF filed the California Action as a "John Doe" proceeding in San
Francisco Superior Court.
Thereafter, the USCF obtained multiple discovery orders from the San
Francisco Superior Court,
permitting the USCF to conduct immediate discovery to identify who was
responsible for the
email intrusion and whether that person was impersonating any USCF board
member.
(Kronenberger Decl. ~2, Ex. A.)
The USCF started off with a subpoena to Yahoo!, as multiple Executive
Board members
used Yahoo! email accounts. From Yahoo!' s response, the USCF
immediately identified over
111 instances of unlawful access to the email account of Randall Hough,
an Executive Board
20080491.20080491/519449.1 4
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 7 of 23
member. The documents provided by Yahoo! detailed the date, time and
Internet Protocol (IP)
address of each intrusion. The USCF then served subpoenas on the owners
of the IP addresses3
associated with the intrusions to determine what customers of theirs
used certain IP addresses at
certain dates and times-which would identify the intruder.
Twenty-six of the intrusions were through an IP address owned by
Comcast. When the
USCF served a subpoena on Comcast to identify its customer who used the
IP address at issue,
Alexander, an employee/webmaster for Polgar, filed a motion to quash the
subpoena. Thereafter,
in open court, Alexander admitted that the IP address that was the
subject of the subpoena was
indeed his IP address.4 (Kronenberger Decl. ~3, Ex. B.) Further,
Alexander actually filed with
the Court the private letter he received from Comcast informing
Alexander that he had 21 days to
file a motion to quash, or else Comcast would turn over his information
to the USCF.
(Kronenberger Decl. ~4, Ex. C.) Based on this information, the USCF then
knew that Alexander
had gained unlawful access to Mr. Hough's account.
On November 10, 2008, Polgar removed the California Action to federal court.
Thereafter, pursuant to the discovery order that remained in effect, the
USCF provided proper
notice to both Polgar and Alexander of new subpoenas it intended to
serve, in particular to
CrystalTech Web Hosting, the Internet service provider for Polgar's
website. (Kronenberger
Decl. ~5, Ex. D.)5 CrystalTech responded to the subpoena with documents
showing, among
3 An Internet access point, such as a desktop computer or a laptop,
allows access to the Internet using a unique
numeric address called an Internet Protocol (IP) address. An IP address
used to access the Internet must be
unique by definition and by function, or else data-like information on
web page - could not be delivered to the
particular computer requesting the information.
4 Alexander infonned the court in the California Action that he intends
to file a motion to stay the California
Action until the criminal action against him is resolved. (Kronenberger
Dec!. ~7, Ex. E, pp. 33:21-25,35:7-8,
4:3-5.)
5 With little explanation as to why the documents on the CrystalTech DVD
may be confidential, Polgar's
California counsel has made a wholesale designation of the CrystalTech
DVD as "CONFIDENTIAL ATTORNEYS
EYES ONLY." (Kronenberger Dec!. ~6.)
20080491.20080491/519449.1 5
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 8 of 23
other things, that Polgar specifically directed Alexander to gain
unlawful access to Mr. Hough's
email account and to review Hough's confidential communications.
For obvious reasons, Polgar does not want the Discovery Documents to be
used in the
Texas Action, despite their clear relevance to Polgar's character and
her pattern-and-practice of
misconduct. However, Judge Patel has already suggested that the parties
streamline the sharing
of documents between the California Action and Texas Action to save the
parties' and courts'
resources. Specifically, during a case management conference in the
California Action, Judge
Patel ordered a recess and instructed counsel for the USCF and counsel
for Polgar to meet and
confer and return to the judge's courtroom to inform her of the parties'
agreement on the
treatment of confidential documents in this sharing process. 6
(Kronenberger Decl., Ex. E, p.
19:21-22.)7 Thereafter, counsel for the parties agreed upon a specific
process for transferring
confidential documents from the California Action to the Texas Action.
Thereafter, the USCF's
counsel informed Judge Patel on the record that the Defendant's Texas
counsel would serve a
subpoena on the USCF's California counsel seeking the Discovery
Documents. Thereafter,
Defendant's counsel would provide notice of the subpoena to Polgar's
counsel, to allow Polgar's
counsel to file a motion to quash or for a protective order in the Texas
Action, if necessary.
(Kronenberger Decl. ~11, Ex. E, p. 23: 13-15 (where USCF counsel
responds to Judge Patel by
6 As an aside, according to Mr. Kronenberger, there are virtually no
documents at issue that are arguably
confidential, with the exception of references to credit card numbers.
Polgar's California counsel has apparently
indiscriminately designated these documents as confidential to stall the
litigation. The USCF has voluntary
designated all references to credit card numbers as confidential under
the protective order. (Kronenberger Dec!.
~9.)
7 Judge Patel clearly contemplated the Discovery Documents being usable
in the Texas Action, based on several of
her comments, including: "This doesn't prevent it from being used in
other lawsuits, ...." (Kronenberger Dec!.
~1O, Ex. E, p. 20: 16-17.) " ... But certainly whatever discovery is
taken in this case should be used in the Illinois
case to the extent that it's discoverable in the Illinois case and in
the Texas case until they all join together." (Id.,
p.20, 21-25.)
20080491.20080491/519449.1 6
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 9 of 23
stating, "What we are going to do is counsel on those other actions will
serve subpoenas on my
firm").)
In accordance with the agreement, on February 27, 2009, counsel for
Continental in the
Texas Action served a subpoena on counsel for the USCF in the California
Action. The USCF
gave Polgar advance notice of the subpoena and informed Polgar the USCF
would comply with
the subpoena in seven days, absent a court order prohibiting
compliance.8 At that point Polgar
had one week to review documents that were in her possession (Bates No:
USCFOOOOOl-
USCF000351), before the USCF would comply with the subpoena.
(Kronenberger Decl. ~12,
Ex. F.) In the interim, on March 3, 2009, Polgar's counsel in the Texas
action sent a Request for
Production of Documents to Defendant's Texas counsel, requesting all
documents responsive to
the subpoenas, in the California Action. (Kronenberger Decl. ~13, Ex. G.)
After seven days from Polgar receiving notice of the Texas subpoena,
Polgar's counsel
had objected to the production of the documents, but did not file a
motion to quash. Out of an
abundance of caution, the USCF refrained from complying with the
subpoena for an additional
five days, waiting for a possible motion to quash. On March 11, 2009,
the USCF's California
counsel gave Polgar's counsel yet another day's notice that he would
produce the Discovery
Documents if no motion to quash were filed. (Kronenberger Decl. ~14, Ex.
H.) On March 12,
2009, Polgar's counsel finally filed her motion to quash.
The Discovery Documents that are the focus of the Polgar's motion relate
to eleven of the
subpoenas served by the USCF in the California Action, to which the
subpoena recipients
responded with documents.9 The first nine subpoenas were served, and
recipients complied,
8 The protective order in the California Action only requires three days
notice, but the USCF gave a full seven days
notice.
9 The other subpoenas did not result in responses. (Kronenberger Decl.~17.)
20080491.20080491/519449.1 7
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 10 of 23
before Polgar was a party to the California Action. The USCF provided
prior notice to Polgar of
the last two subpoenas.
SUBPOENA RECIPIENT SERVED ON POLGAR BATES NUMBERS
Yahoo Inc n/a USCF000002 - USCFOOOO05
NTT America, Inc. n/a USCF000042 - USCFOOO054
Anonymizer, Inc. n/a USCF000057 - USCFOOO060
Google, Inc. n/a USCF000141 - USCFOOO144
Yahoo, Inc. n/a USCF000145 - USCFOOO149
XO Communications, Inc. n/a USCFOOO178 - USCFOOO 182
United Online, Inc. n/a USCF00020 1 - USCFOO0205
Yahoo Inc. n/a USCF000261 - USCFOO0263
Toledo Rapid, LLC n/a USCF000265 - USCFOO0268
CrystalTech Web Hosting Inc. 11/14/08 USCF000310 - USCF0003 12
CrystalTech Web Hosting Inc. 11/14/08 USCF000319 - USCFOO0321
(Kronenberger Decl. ~15, Ex. 1.)
Importantly, despite arguments by Polgar in her motion objecting to
document requests to
American Express and Comcast, neither of those companies responded to
the USCF subpoenas.
Thus, the Discovery Documents do not contain any documents from either
American Express or
Comcast. (Kronenberger Decl. ~16.)10
ARGUMENT
In reviewing the Motion to Quash, it appears that Polgar is now taking
the position that
Polgar and/or Truong needed to "consent" to various records being
subpoenaed. However, at the
time that the USCF began its investigation of improper behavior, both
Truong and Polgar were
denying that they had engaged in any improper actions. Consequently, the
USCF could not have
gotten "consent" from Truong and Polgar as they were completely denying
that they had done
10 Assuming Polgar's American Express card was used to pay for services
that show Polgar's true character, what
legal objections would Polgar have to suppress such documents and/or
information? At a minimum, surely
discovery should be allowed to obtain said information.
20080491.200804911519449.1 8
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 11 of 23
any improper behavior. Thus, the USCF sent lawful subpoenas pursuant to
court orders to third
parties to try to discover who had been engaging in the improper
behavior. 11
For example, the USCF wanted to investigate who had unlawfully "hacked
into" one of
its board member's email accounts. As Polgar was denying that she had
done it, there was no
need to get her "consent" to investigate these facts. I2 The USCF sent
"blind" subpoenas to the
various Internet providers to see if the USCF could determine who had
improperly gained access
to a board member's email account. The subpoenaed documents then
demonstrated that
Alexander had been accessing Randall Hough's email account. Later, the
USCF received at least
one communication that shows that Polgar had been directing Alexander to
access the
information. 13
Other evidence also shows that Polgar was doing the improper behavior.
Again, Polgar
had been the first to appear with documents that had been illegally
obtained. Polgar has given
conflicting stories as to how she had gotten the information. If Polgar
hacked into Jeff Jones's
(the USCF's Texas counsel) email account and obtained attorney-client
emails he has exchanged
with his clients, this would also be very egregious. Similarly, this
Court should find Polgar's
conduct extremely egregious in unlawfully hacking into another party's
account and stealing
11 In her Motion to Quash, Plaintiff claims various documents were
"unlawfully" obtained even though the USCF
had gotten a California court to execute orders to obtain the discovery.
Is Polgar claiming that a California judge
was complicit in allowing "unlawful" behavior?
12 If it did not file a "Doe" action, what was the USCF supposed to do?
Is Polgar suggesting that a party should sue
another party without having sufficient facts and/or evidence? Even
though Polgar apparently believes this may
be appropriate, the USCF does not. The USCF did the proper and
reasonable action of filing a lawsuit and
requesting permission from a court to investigate the facts to get
evidence showing who was doing inappropriate
actions.
13 Again, all of the subpoenaed documents and infonnation have been
turned over to Plaintiffs California lawyer.
Plaintiffs motion is trying to prevent Defendant's California lawyer
from turning over the documents to
Defendant's Texas counsel. Defendant's Texas counsel has already agreed
to provide another copy of the
documents to Plaintiffs Texas lawyer.
20080491.20080491/519449.1 9
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 12 of 23
attorney-client privileged emails.This is why Polgar is fighting so hard
to try to prevent such
information from becoming public and/or being used in litigation.
Polgar cannot have it both ways. She denied engaging in the alleged
improper activity
initially. Consequently, the USCF had no reason to seek any "consent"
from Polgar before trying
to obtain the information. Plus, the California discovery was not
seeking information specifically
related to Polgar. It was only because Polgar had engaged in improper
activities that her name
was linked to the discovery.
Likewise, Truong and Polgar were denying that they had had anything to
do with
impersonating Sam Sloan. Consequently, there was no need to obtain
Polgar's and/or Truong's
consent before trying to get information regarding such issues. Indeed,
it appears that Truong
and/or Polgar's credit card number was used to pay for Internet services
that were used to make
some of the fake Sam Sloan postings. Consequently, now Polgar is
complaining that her credit
card number should not be made public and that she did not consent to
allowing anyone to obtain
that information. However, the USCF did not know at the time that it
would be Polgar's and/or
Truong's credit card that would be tied to the improper fake Internet
postings. It was only as a
result of subpoenas to get Internet information that information
relating to an American Express
card was divulged, and the card had been used to make the fake Internet
postings. It was only
when the USCF then sent a subpoena to American Express, did American
Express notify the
account holder, Truong and/or Polgar of the subpoena, and then they
objected to same. This is
one way the USCF established that Truong and Polgar were the owners of
that American Express
card. When the USCF filed a copy of the document demonstrating that it
was Truong and/or
Polgar's American Express card, the confidential portions, i.e., the
number on the card had been
20080491.20080491/519449.1 10
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 13 of 23
redacted to protect the confidentiality of such information. 14 Simply
put, the fact that Truong
and/or Polgar's credit card had been used to engage in improper activity
should not be
suppressed.
In addition to the equitable reasons, there are compelling legal reasons
to deny Polgar's
motion. Polgar puts forth three hollow arguments as to why the Texas
subpoena should be
quashed. All three of these arguments can be dismissed on their face.
First, Polgar argues that
the USCF did not provide advance notice, under California Code of Civil
Procedure 1798.3 to
any consumers affected by the California subpoenas before service of the
subpoenas. Second,
Polgar argues that the USCF conducted discovery improperly before a
conference under Federal
Rule of Civil Procedure 26(f). And third, Polgar argues that the USCF
did not provide adequate
notice of the CrystalTech subpoenas pursuant to Federal Rule of Civil
Procedure 5 and 45. As
discussed below, none of these arguments is accurate. Plus, there are
even more reasons to deny
Polgar's motion.
A. California law did not require advance notice for the subpoenas at issue.
California law did not require advance notice to any consumers
potentially affected by the
subpoenas, as the subpoenas were not served on a government entity or on
a financial institution.
Polgar cites to California Code of Civil Procedure section 1798.3 as
California authority
prohibiting service of subpoenas that seek consumer information.
However, there is no
California Code of Civil Procedure section 1798.3. Polgar may have been
referring to California
Civil Code section 1798.3, which defines "personal information" and
government "agencies.,,15
California Civil Code 1798.24(k) contains a prohibition on government
"agencies" disclosing
14 Defendant is willing to redact personal information but Plaintiff
apparently does not want to only redact
information, and instead, Plaintiff wants to quash and suppress all
discovery.
15 California Civil Code section 1798.3(b) defines "agency" as "every
state office, officer, department, division,
bureau, board, commission, or other state agency ..."
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Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 14 of 23
documents in response to subpoenas without first attempting to notify
any consumers affected.
However, none of the USCF subpoenas was served on government agencies.
Thus, California
Civil Code sections 1798.3 and 1798.24 do not apply.
The only other arguably relevant California code section would be
California Code of
Civil Procedure section 1985.3(b), which requires notice to a consumer
if a party serves a
subpoena for banking or medical records on a defined list of entities.
Specifically, the statute
limits the type of subpoena recipients that would trigger that statute
by narrowly defining
"personal records" as records held by a short list of medical or
financial institutions. 16 Notably,
the Discovery Documents simply are not "personal records" under this
rule; instead the subpoena
recipients are telecommunications companies or various types of Internet
service providers,
which are simply not included in the definition of "personal records"
under the rule. Importantly,
the USCF did serve a subpoena on American Express to obtain the identity
of the owner of a
particular American Express card number; however, American Express never
produced
documents, and there are no documents from American Express in the
Discovery Documents. 17
16 California Code of Civil Procedure section 1985.3(b) reads:
"Personal records" means the original, any copy of books, documents,
other writings, or electronic data
pertaining to a consumer and which are maintained by any "witness" which
is a physician, dentist,
ophthalmologist, optometrist, chiropractor, physical therapist,
acupuncturist, podiatrist, veterinarian, veterinary
hospital, veterinary clinic, phannacist, pharmacy, hospital, medical
center, clinic, radiology or MRI center,
clinical or diagnostic laboratory, state or national bank, state or
federal association (as defined in Section 5102 of
the Financial Code), state or federal credit union, trust company,
anyone authorized by this state to make or
arrange loans that are secured by real property, security brokerage
firm, insurance company, title insurance
company, underwritten title company, escrow agent licensed pursuant to
Division 6 (commencing with Section
17000) of the Financial Code or exempt from licensure pursuant to
Section 17006 of the Financial Code,
attorney, accountant, institution of the Farm Credit System, as
specified in Section 2002 of Title 12 of the United
States Code, or telephone corporation which is a public utility, as
defined in Section 216 of the Public Utilities
Code, or psychotherapist, as defined in Section 1010 of the Evidence
Code, or a private or public preschool,
elementary school, secondary school, or postsecondary school as
described in Section 76244 of the Education
Code.
17 One of the Discovery Documents produced by the third parties listed
an America Express card number, and this
is why a subsequent subpoena was sent to American Express. While it is a
moot point, documents held by
American Express would not be "personal information" under California
Code of Civil Procedure section
1985.3(b) either.
20080491.20080491/519449.1 12
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 15 of 23
Accordingly, none of the subpoenas in the Discovery Documents could have
triggered a notice
requirement under California civil procedure rules. In summary, no
California law required any
advance notice to consumers before service of subpoenas in the
California Action.
B. The USCF conducted discovery under valid state discovery orders.
Polgar also argues that the USCF improperly issued subpoenas before a
conference
pursuant to Federal Rule of Civil Procedure 26(f). Polgar is wrong.
Before the California Action
was removed to federal court, the USCF obtained three separate discovery
orders, issued upon a
thorough review by the San Francisco Superior Court, which permitted the
USCF to conduct
"immediate" discovery. (Kronenberger Decl. ~2, Ex. A.) Nine of the
eleven subpoenas at issue
in this matter were served before the California Action was removed to
federal court. The
discovery orders followed briefing and appearances in front of a
California judge, who thereafter
signed each of the discovery orders. The subpoenas served pursuant to
the discovery orders were
limited in scope, sought relevant information, and had been sanctioned
by the court. Polgar can
cite to no authority calling into question the validity of the discovery
orders and the subpoenas.
Instead, Polgar insinuates that because the orders were obtained ex
parte that there was some
sinister or otherwise unlawful purpose. The San Francisco Superior Court
has express ex parte
procedures precisely for situations like this one. Polgar can point to
no legal authority
whatsoever as grounds for her arguments.
After the California Action was removed to federal court, the USCF
served additional
subpoenas and provided notice to both Polgar and Alexander well in
advance of the production
dates for such subpoenas. Importantly, only two of the eleven subpoenas
to which recipients
replied were served after removal. Service of such subpoenas were lawful
under 28 U.S.C.
§1450 because state discovery orders remain in effect after removal
("All injunctions, orders, and
20080491.20080491/519449.1 13
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 16 of 23
other proceedings had in such action prior to its removal shall remain
in full force and effect until
dissolved or modified by the district court.") 28 U.S.C. §1450.
Importantly, Judge Patel in the California Action has refused to quash
or otherwise
invalidate the CrystalTech subpoenas, despite several attempts by
Polgar's counsel. 18 Likewise,
there is no reason for the Court in the Texas Action to quash or
invalidate the any of the USCF
subpoenas due to the timing of when the subpoenas were served,
especially because Texas
counsel is amenable to stipulating to a protective order in this case.
C. The USCF provided adequate notice under Fed. R. Civ. P. 5 and 45.
Polgar argues that she was not provided with adequate notice of the
subpoenas that
resulted in the Discovery Documents, under Federal Rules of Civil
Procedure 5 and 45. Again,
Polgar's argument fails on its face. Nine of the eleven subpoenas at
issue were served before
Polgar and Alexander were named as parties, and as a result, no advance
notice to Polgar was
required or could have been given. The remaining two subpoenas were
served on CrystalTech
Web Hosting after the California Action was removed. Despite Polgar's
accusations, the USCF
did indeed provide notice of the subpoenas to Polgar well in advance of
the production date on
the subpoenas, as evidenced by the USCF proof of service affidavit
(Kronenberger Decl. ~5, Ex.
D.), and the subpoenas themselves. (ld.) Thus, the subpoenas were served
in compliance with
the federal rules.
i8 Polgar's counsel filed an ex parte letter with Judge Patel on
November 26, 2008 objecting to the new subpoenas
issued. (Kronenberger Dec!. '18, Ex. J.) The USCF counsel responded
(Kronenberger Dec!. '19, Ex. K.), and
Judge Patel refused to entertain any motion to quash or otherwise
invalidate the subpoenas at issue in that case.
Importantly, after Polgar's recent filing of a motion to transfer venue,
Judge Patel stayed discovery in the
California Action. (Kronenberger Dec!.'20.)
20080491.20080491/519449.1 14
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 17 of 23
D. Polgar's motion to quash conflicts with Polgar's own discovery
requests she
served in this matter.
Attached as Exhibit G to the Kronenberger Declaration is a copy of
Polgar's discovery
requests that she sent to Continental Chess and various other Defendants
in this action. Among
other things, Polgar seeks copies of all of the Discovery Documents the
USCF obtained in the
California Action. Specifically, the requests state:
REQUEST NO. 33: Please produce copies of ALL subpoenas
issued by Karl Kronenberger under San Francisco Superior Comi
Case No. CGC-08-476777.
REQUEST NO. 34: Please produce copies of ALL subpoenas
issued by Karl Kronenberger under U.S. District Court, Northern
Division Case No. 3:08-CV-05126.
REQUEST NO. 35: Please produce ALL DOCUMENTS
provided by ANY recipient of ANY subpoena under either San
Francisco Superior Court Case No. CGC-08-476777 or U.S.
District Court, Northern Division Case No. 3:08-CV-05126.
REQUEST NO. 36: Please produce ALL COMMUNICATIONS,
whether sent or received by Karl Kronenberger or the USCF,
between Kronenberger or the USCF and ANY recipient of ANY
subpoena issued under San Francisco Superior Court Case No.
CGC-08-476777 or U.S. District Comi, Northern Division Case
No.3:08-CV-05126. (Kronenberger Decl. ~17, Ex. G.)
Consequently, Defendant does not understand why Polgar is filing a
Motion to Quash a
subpoena to get the very information she is asking the Defendants to
produce in this lawsuit.
This makes absolutely no sense. As a minimum, Polgar should be found to
have waived any
right to object to the subpoena, should be estopped from arguing to the
contrary and/or has
ratified the actions as Polgar has requested the very same information
from various Defendants. 19
19 The Texas subpoena requested compliance by 5:00 p.m. on March 6,
2009. Because Plaintiffs motion to quash
was not filed before the compliance deadline, but instead filed on March
12,2009, Plaintiff may have waived her
right to object to the subpoena.
20080491.20080491/519449.1 15
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 18 of 23
Polgar may be seeking to obtain copies of all of the Discovery Documents
received in the
California Action, only then to attempt to prevent Defendants from using
such Discovery
Documents in their defense against Polgar's Texas claims - resulting in
Polgar as the only party
being able to use the Discovery Documents in Texas. This sort of outcome
was clearly not
contemplated by the drafters of the Federal Rules of Civil Procedure.
While it is only
speculation, Plaintiff may be trying to force the Texas parties to send
out the same subpoenas,
hoping that some of the third party subpoena recipients may have deleted
some of the electronic
information. This Court should not allow such gamesmanship. This Court
should allow
Defendants to obtain the Discovery Documents, which are needed to
respond to Polgar's claims
against Defendants in Texas.
E. Polgar's motion to quash violates the agreement between the parties,
which
Judge Patel approved, regarding sharing discovery documents.
As the Court can see from the record of the conference held before Judge
Patel, there was
an understanding and agreement on how the parties would exchange
discovery between the
California Action and the Texas Action. The purpose of this agreement
was to limit the costs to
the parties, avoid duplicative discovery disputes before the courts, and
reduce the burden on third
party subpoena recipients. The Defendant's service of a subpoena on
USCF's California counsel
for the Discovery Documents is at the core of this agreement.
There are also no valid concerns about confidentiality. Polgar's
California counsel has a
full copy of the Discovery Documents, and thus knows exactly what
documents would be turned
over pursuant to the subpoena. Under the protective order in the
California Action, there is a
notice period of three days before the Discovery Documents are handed
over pursuant to
subpoenas without confidentiality designations. (See Kronenberger Dec1.
~2l, Ex. L, p. 10.)
This is the protective order to which Polgar agreed. The USCF gave seven
days notice, which is
20080491.200804911519449.1 16
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 19 of 23
more than required. Simply put, Polgar has no grounds to object to a
transfer of the Discovery
Documents to Texas counsel.
F. Polgar already has established that she is not going to produce relevant
documents if she can pick and choose what documents she desires to
produce. If this Court quashes the subpoena, it will allow Polgar to
suppress
relevant documents and information.
When the parties exchanged discovery requests in the California Action,
the USCF asked
Polgar to produce all correspondence between her and her co-conspirator,
Gregory Alexander.
(Kronenberger Decl. ~28, Ex. M, p. 5.) Before the USCF provided the DVD
containing Polgar's
own website (USCF000334), which the USCF obtained from CrystalTech Web
Hosting, Polgar
responded to the USCF's discovery requests. In her production of
documents she produced a
limited subset of the total correspondence between her and Alexander,
which was contained in
private areas of her website. (Kronenberger Decl., ~29.)
Just one example of the document that Polgar withheld from the USCF,
which is on the
CrystalTech DVD, is a statement by Polgar instructing Alexander to log
into Randall Hough's
email account. (Kronenberger Decl.~30.) The USCF was quite surprised to
learn that Polgar
simply refused to produce a document that was clearly relevant and
discoverable, but instead was
simply not produced. But for being produced by a third party, the USCF
may not have gotten
such additional strong evidence that Polgar was directing Alexander to
hack into another's email
account, and Polgar would have a much better chance at convincing others
of her supposed
"innocence."
This glaring omission by Polgar demonstrates to the Court why Polgar is
fighting so hard
to suppress the Discovery Documents. There is no telling how many other
documents Polgar has
improperly withheld. Polgar should not be permitted to pick and choose
which of her
communications she produces. The Defendants are entitled to all evidence
relevant to their
20080491.20080491/519449.1 17
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 20 of 23
defense against Polgar's claims, and evidence that Polgar solicited and
conspired with Alexander
to engage in criminal activity is clearly relevant in the Texas action,
where Polgar's character is
squarely at issue.
G. The interests of judicial economy cut against requiring the parties
to incur
the additional expense of replicating the discovery already conducted in the
California Action.
Defendants in the Texas Action should not be forced to serve identical
subpoenas on the
exact same subpoena recipients to obtain this information-when it
already exists in the
California Action. Polgar clearly wants the Texas Defendants to engage
in expensive,
duplicative discovery. But as Judge Patel recognized, such duplicative
expenses are not
necessary, especially when the Defendants have offered to stipulate to a
protective order if some
of the Discovery Documents are truly confidential. Plus, there is no
need to cause various third
parties to have to respond to even more subpoenas.
As illustrated in a letter sent by Defendant's counsel Mr. Huttenbach to
Polgar's attorney,
(Kronenberger Decl. ~31, Ex. N), Mr. Huttenbach offered to provide the
Discovery Documents to
Polgar's counsel in Texas for review (the Discovery Documents have
already been provided to
Polgar's California counsel, as part of initial disclosures, Federal
Rule of Civil Procedure
26(a)(l )(A), in the California Action). If there are truly confidential
portions and/or irrelevant
documents, the parties could stipulate to a protective order to protect
the disclosure of any such
confidential documents. There is no reason to quash all of the Discovery
Documents.
20080491.20080491/519449.1 18
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 21 of 23
CONCLUSION
For all of these reasons, Plaintiffs motion to quash should be denied.
Respectfully submitted,
By: sf William P. Huttenbach
William P. Huttenbach
Federal J.D. No. 21742
State Bar No. 24002330
Hirsch & Westheimer, P.C.
700 Louisiana, 25th Floor
Houston, Texas 77002
E-mail:
Telephone: (713) 220-9184
Fax: (713) 223-9319
ATTORNEY-IN-CHARGE FOR DEFENDANT,
CONTINENTAL CHESS INCORPORATED
OF COUNSEL:
HIRSCH & WESTHEIMER, P.C.
Bank of America Center
700 Louisiana, 25th Floor
Houston, Texas 77002-2772
Telephone: (713) 223-5181
Telecopier: (713) 223-9319
LOCAL COUNSEL:
LaFONT, TUNNELL, FORMBY, LaFONT
& HAMILTON, L.L.P.
Bill LaFont
State Bar No. 11791000
Brent Hamilton
State Bar No. 00796696
PO Box 1510
Plainview, Texas, 79073-1510
Telephone: (806) 293-5361
Telecopier: (806) 293-5366
20080491.200804911519449.1 19
Case 5:08-cv-00169-C Document 96 Filed 03/24/2009 Page 22 of 23
CERTIFICATE OF
 




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