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1 QUINN EMANUEL URQUHART & SULLIVAN, LLP

John B. Quinn (Bar No. 090378)


 (johnquinn@quinnemanuel.com)
Bruce E. Van Dalsem (Bar No. 124128)
 (brucevandalsem@quinnemanuel.com)
B. Dylan Proctor (Bar No. 219354)
 (dylanproctor@quinnemanuel.com)
Joseph C. Sarles (Bar No. 254750)
 (josephsarles@quinnemanuel.com)
865 South Figueroa Street, 10th Floor
 Los Angeles, California 90017-2543
Telephone: (213) 443-3000
 Facsimile: (213) 443-3100

 Attorneys for Defendants


Snapchat, Inc., Toyopa Group, LLC,
 Evan Thomas Spiegel, and Robert Cornelius
Murphy


 SUPERIOR COURT OF THE STATE OF CALIFORNIA

 FOR THE COUNTY OF LOS ANGELES

 CENTRAL DISTRICT

 FRANK REGINALD BROWN IV, an CASE NO. BC501483


individual,
 DEFENDANTS’ OPPOSITION TO
Plaintiff, PLAINTIFF’S MOTION TO
 DISQUALIFY DEFENDANTS’
vs. COUNSEL;

SNAPCHAT, INC., a Delaware corporation; DEFENDANTS’ OBJECTIONS TO
 TOYOPA GROUP, LLC, a California Limited PLAINTIFF’S EVIDENCE;
Liability Company; EVAN THOMAS
 SPIEGEL, an individual; ROBERT DECLARATION OF ANTHONY ALDEN;
CORNELIUS MURPHY, an individual; and
 DOES 1 through 25 inclusive, DECLARATION OF ROBERT KEHR;

 Defendants. DECLARATION OF JOSEPH SARLES;

 DECLARATION OF EVAN SPIEGEL;

 COMPENDIUM OF QUINN EMANUEL


DECLARATIONS

Dept.: 50 (Hon. Conrad Aragon)
 Date: August 1, 2013
Time: 8:30 a.m.

Complaint Filed: February 21, 2013




05201.23771/5426070.1
OPPOSITION TO MOTION TO DISQUALIFY
1 TABLE OF CONTENTS
2 Page
3
INTRODUCTION ............................................................................................................................. 1
4
STATEMENT OF FACTS................................................................................................................ 2
5
ARGUMENT .................................................................................................................................... 7
6
I. BROWN’S WAIVER PRECLUDES VICARIOUS DISQUALIFICATION ...................... 8
7
A. A “Second” Waiver Is Not Required ........................................................................ 8
8
B. Brown’s Informed Written Waiver Should Be Enforced ........................................ 10
9
II. QUINN EMANUEL’S ETHICAL SCREENING PREVENTS
10 DISQUALIFICATION ....................................................................................................... 13

11 CONCLUSION ............................................................................................................................... 15

12

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OPPOSITION TO MOTION TO DISQUALIFY
1 TABLE OF AUTHORITIES
2 Page
3 Cases
4 B.F. Goodrich Co. v. Formosa Plastics Corp.,
638 F. Supp. 1050 (S.D. Tex. 1986) ............................................................................................7
5
Barco N.V. v. Tech. Properties Ltd.,
6 2011 WL 841283 (N.D. Cal. Mar. 8, 2011) ...............................................................................14

7 Chambers v. Sup. Ct.,


121 Cal. App. 3d 893 (1981) ......................................................................................................15
8
In re Charlisse C.,
9 45 Cal. 4th 145 (2008)................................................................................................................15

10 City Nat’l Bank v. Adams,


96 Cal. App. 4th 315 (2002) .........................................................................................................9
11
City of Santa Barbara v. Sup. Ct.
12 (2004) 122 Cal. App. 4th 17 (2004) ...........................................................................................15

13 Civil Service Comm’n v. Superior Court,


163 Cal. App. 3d 70 (1984) ..............................................................................................9, 11, 12
14
In re Complex Asbestos Litig.,
15 232 Cal. App. 3d 572 (1991) ................................................................................................13, 15

16 Concat LP v. Unilever PLC,


350 F. Supp. 2d 796 (N.D. Cal. 2004) .......................................................................................11
17
In re County of Los Angeles,
18 223 F.3d 990 (9th Cir. 2000) ................................................................................................14, 15
19 Elliott v. McFarland Unified Dist.,
165 Cal. App. 3d 562 (1985) ........................................................................................................7
20
Flatt v. Superior Court,
21 9 Cal. 4th 275 (1994)....................................................................................................................9

22 Goldberg v. Warner/Chappel Music, Inc.,


125 Cal. App. 4th 752 (2005) .....................................................................................................14
23
Gregori v. Bank of Am.,
24 207 Cal. App. 3d 291 (1989) ....................................................................................................1, 7

25 Kirk v. First Am. Title Ins. Co.,


183 Cal. App. 4th 776 (2010) ............................................................................................. passim
26
Kirk v. First American Title Ins. Co.,
27 No. S182775, 2010 Cal. LEXIS 5771 (Cal. June 23, 2010) ................................................13, 14

28

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OPPOSITION TO MOTION TO DISQUALIFY
1 MGM, Inc. v. Tracinda Corp.,
36 Cal. App. 4th 1832 (1995) .......................................................................................................7
2
In re Marriage of Zimmerman,
3 16 Cal. App. 4th 556 (1993) .......................................................................................................12

4 Maxwell v. Superior Court,


30 Cal. 3d 606 (1982) .............................................................................................................8, 13
5
McPhearson v. Michaels Co.,
6 96 Cal. App. 4th 843 (2002) .........................................................................................................7

7 Meza v. H. Muehlstein & Co.,


176 Cal. App. 4th 969 (2009) .....................................................................................................14
8
Openwave Sys. Inc. v. Myriad France S.A.S.,
9 2011 WL 1225978 (N.D. Cal. Mar. 31, 2011) ...........................................................................14

10 People v. SpeeDee Oil Change Sys., Inc,


20 Cal. 4th 1135 (1999)................................................................................................7, 9, 12, 14
11
Shadow Traffic Network v. Sup. Ct.,
12 24 Cal. App. 4th 1067 (1994) .....................................................................................................15

13 Sharp v. Next Entm’t, Inc.,


163 Cal. App. 4th 410 (2008) .............................................................................................8, 9, 10
14
Silicon Graphics, lnc. v. AT1 Technologies, Inc.,
15 2010 WL 3860374 (W.D. Wis. Oct. 5, 2010) ............................................................................14

16 UMG Recordings, Inc. v. MySpace, Inc.,


526 F. Supp. 2d 1046 (C.D.Cal. 2007) .......................................................................................15
17
Visa U.S.A., Inc. v. First Data Corp.,
18 241 F. Supp. 2d 1100 (N.D. Cal. 2003) ............................................................................. passim
19 Western Digital Corp. v. Sup. Ct.,
60 Cal. App. 4th 1471 (1998) .....................................................................................................15
20
Zador Corp. v. Kwan,
21 31 Cal. App. 4th 1285 (1995) .....................................................................................8, 10, 11, 12

22
Statutes/Rules
23
Model Rules of Prof’l Conduct R. 3-310 ...........................................................................................8
24
Model Rules of Prof’l Conduct R. 3-310(C)(2) .................................................................................8
25

26
27

28

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OPPOSITION TO MOTION TO DISQUALIFY
1 Introduction
2 In this lawsuit, plaintiff Frank Reginald Brown IV (“Brown”) seeks to enforce an alleged

3 oral partnership agreement to obtain a one-third ownership interest in Snapchat, Inc., a business he

4 claims is worth hundreds of millions of dollars. Although his own testimony and writings prove

5 that Brown’s claim of oral partnership is a recent fabrication, there is one agreement in this case

6 that is undeniable: when Brown was interviewing lawyers, Quinn Emanuel would not speak to

7 him unless and until he signed the Quinn Emanuel Matter Assessment and Waiver Agreement (the

8 “Waiver”). Far from “downplaying” the Waiver as Brown claims, the only Quinn Emanuel

9 lawyer to whom Brown ever spoke, Anthony Alden, advised him to seek independent counsel

10 before signing the Waiver and offered to locate such counsel. Brown chose to sign the Waiver,

11 and promised in it that he would not seek to disqualify Quinn Emanuel should the firm turn down

12 his case and subsequently represent an adverse party. After Brown signed the Waiver, he spoke to

13 Alden for 30 minutes. After exchanging some emails, Alden then declined the representation

14 without reviewing any confidential documents or engaging in any case analysis. Later, when

15 defendants retained Quinn Emanuel after Brown filed suit, the firm immediately established an

16 ethical wall screening Alden from the matter, and that wall has been faithfully observed. Brown

17 knows all of this, and yet he filed this motion anyway.

18 Disqualification motions are “strongly disfavored” and subject to “particularly strict


19 judicial scrutiny” because they can be brought for tactical advantage, and not out of any genuine

20 concern for ethics. Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp. 2d 1100, 1104 (N.D. Cal.

21 2003) (citing Gregori v. Bank of Am., 207 Cal.App.3d 291, 300–01 (1989)) (see Mot. at 12,

22 relying on Visa). Brown’s motion exemplifies a purely tactical one. There is no suggestion that

23 Brown, a Stanford graduate who has applied to law schools and worked in a state Attorney

24 General’s office, did not understand what he was agreeing to in the Waiver. There is no

25 suggestion, anywhere, that any of Brown’s confidential information has actually been shared with

26 the attorneys representing defendants, or that Quinn Emanuel has behaved unethically. Quinn
27 Emanuel and Brown’s counsel have a longstanding relationship as former colleagues (their firm

28 was founded by former Quinn Emanuel associates), co-counsel in other cases, and friends—and

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OPPOSITION TO MOTION TO DISQUALIFY
1 Quinn Emanuel referred this very case to Brown’s counsel. Brown’s lawyers know that Quinn

2 Emanuel would never make inappropriate use of Brown’s confidential information. Their effort to

3 disqualify the firm is thus a tactical effort to knock out defendants’ counsel of choice—not out of

4 concern for actual impropriety, but in an effort to obtain a litigation advantage.

5 Brown’s Waiver is enforceable and applies precisely to the facts present, and Alden was

6 timely walled through a rigorous ethical screen. Brown cites no authority ordering vicarious

7 disqualification of an entire firm despite such a waiver and screening. In fact, he ignores the

8 ethical screening entirely, and fails to cite the Second District’s controlling opinion in Kirk v. First

9 Am. Title Ins. Co., 183 Cal.App.4th 776 (2010), which holds that such screening prevents

10 vicarious disqualification. Brown’s tactical disqualification motion should be denied.1

11 Statement of Facts
12 Background of the Dispute. Brown filed this case in February 2013, claiming that in
13 April 2011 he entered into an oral partnership agreement with defendants Evan Spiegel and Bobby

14 Murphy to develop and co-own a smartphone application for disappearing messages. While

15 Brown wanted equity in the business that owned the application, the evidence proves Brown knew

16 the application was owned by Toyopa Group, LLC (“Toyopa”), and that Brown knew Toyopa was

17 a preexisting company owned by Spiegel and Murphy.2 In 2011, Brown was assisting the pair by

18 completing what he described as discrete “tasks.” When he learned that Spiegel and Murphy
19

20
1
21 expert Defendants concurrently submit the declaration of Robert Kehr, a distinguished ethics
who has served as Chair of the State Bar of California’s Committee on Professional
22 Responsibility and Chair of the Los Angeles County Bar Association’s Professional Responsibility
and Ethics Committee. Mr. Kehr opines that the Waiver is ethically proper and consistent with
California law, and that even without the Waiver, Quinn Emanuel’s screening independently
23 satisfied the obligation to protect Brown’s confidential information.
2
As of April 2011, Spiegel and Murphy had already worked on several start-up projects as
24 co-owners of a company called Future Freshman, LLC, which Spiegel and Murphy had formed in
2010. Brown knew that Future Freshman LLC was owned solely by Spiegel and Murphy, and not
25 him. Brown Depo. at 411:16-412:5 (Sarles Decl., Ex. D); see also Sarles Decl Ex. B (Brown
notes). Future Freshman LLC was re-named as defendant Toyopa Group LLC, and Brown knew
26 that Toyopa, like its predecessor, was owned solely by Spiegel and Murphy, and not him. Brown
27 rights to the disappearing messagesEx.
Depo at 54:9-56:18 (Sarles Decl., D). Most importantly, Brown knew that Toyopa owned the
application that Brown claims he, Spiegel and Murphy agreed
28 to co-own. Id. at 231:16-232:9; see also Sarles Decl., Ex. C (Brown-authored press releases).

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OPPOSITION TO MOTION TO DISQUALIFY
1 intended to replace him because his efforts were not helpful, he embarked on a scheme to claim

2 ownership in Murphy’s inventions, thereby obtaining some claim to the application.3

3 Specifically, Spiegel had asked Brown if he would help out by drafting and submitting a

4 provisional patent application for a “very specific process” that Murphy had invented regarding

5 screen capture detection. Brown said he would, received from Murphy a document showing the

6 specific steps required to reproduce the process, and stated he would file the application on behalf

7 of Toyopa. Brown then created a customer account for Toyopa with the PTO and told Spiegel and

8 Murphy that he would use this account for the patent application. Sarles Decl., Ex. E. Knowing

9 he had no agreement to share in the equity of Toyopa, and having noted to himself “lawsuit

10 possible,” Brown sought to hijack ownership rights he knew he did not possess by secretly filing

11 an application that (1) claimed the entirety of the disappearing messages application, not just the

12 screen capture detection technology; (2) listed himself as an inventor; and (3) listed Brown’s

13 personal South Carolina address as the contact information, and did not use the Toyopa customer

14 account or list that entity as the applicant. Sarles Decl., Ex. F. Brown then told Spiegel and

15 Murphy he had filed the application, but refused to provide a copy of it. Sarles Decl., Ex. G. It

16 was only after Spiegel raised questions about this patent application during an August 16, 2011

17 telephone call—after Brown had secured, or so he thought, ownership rights that he did not

18 possess by filing for a patent in his own name—that Brown first demanded equity. Murphy Depo.
19 at 118:23-122:14 (Sarles Decl., Ex. H). No agreement was reached, and Spiegel and Murphy

20 excluded Brown from further involvement due to his duplicity.4

21 Brown went on his way and defendants heard nothing from him until the press reported that

22 Snapchat had obtained its first debt financing in May 2012. Sensing an opportunity, Brown

23
3
When Brown overheard Spiegel and Murphy discussing the quality of Brown’s work and
24 their intention to replace him, he made notes to himself, stating he did so to “protect myself.”
25 Future Freshman409:15-410:5
Brown Depo. at (Sarles Decl., Ex. D). Brown’s notes reflect his knowledge that
LLC was owned “60/40” by Spiegel and Murphy and recite Brown’s claimed
26 contributions to the project (“Initial idea,” “Picaboo name,” and “Ghost design”). Brown then
wrote: “California law. Lawsuit is possible.” Sarles Decl., Ex. B. Absent is any claim that the
27 parties had previously reached an oral partnership agreement.
4
Defendants first obtained a copy of the application that Brown filed in discovery after he
28 filed this action. It is attached to the Sarles Declaration as Exhibit F.

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OPPOSITION TO MOTION TO DISQUALIFY
1 reemerged, making financial demands. If the trio had indeed struck an oral partnership agreement

2 for equal one-third ownership as Brown now claims, one would assume that Brown would have

3 based his monetary demands on a claim that defendants breached that agreement. But Brown did

4 nothing of the sort. Instead, he admitted that no agreement for equity participation by him had

5 been reached (“our subsequent equity discussions unfortunately broke down”), admitted that his

6 role in the project was not equal to that of Spiegel and Murphy (“As I expressed to Bobby this past

7 summer, I understood both then and currently that my role in the process was of a different nature

8 and was thus willing to accept a significantly less portion of equity than either of you”), but

9 claimed that “due to the provisional patent application” that Brown had wrongfully hijacked, “I

10 still currently own a third of SnapChat’s IP.” Sarles Decl., Ex. A.

11 Brown’s May 2012 email made no reference whatsoever to what he now claims to be the

12 clear and unequivocal oral partnership agreement upon which he filed this lawsuit. The reason is

13 simple: Brown made up that claim later, presumably after he realized that the provisional patent

14 application he had filed was worthless.

15 Brown Approaches Quinn Emanuel. In his May 2012 email to Spiegel, Brown claimed
16 he had already “spoken to several intellectual property attorneys,” Sarles Decl., Ex. A, and Brown

17 testified that before he filed suit he contacted a Stanford law school professor, a separate attorney

18 at Morrison & Foerster, and attorneys at Kirkland & Ellis. Brown Depo. at 25:14-31:11, 31:18-23
19 (Sarles Decl., Ex. D). In addition to these attorneys, Brown approached Quinn Emanuel about

20 taking his case.

21 Anthony Alden, the only Quinn Emanuel attorney with whom Brown spoke, would not

22 discuss the substance of the matter before Brown signed the Waiver. Alden Decl. at ¶¶ 5-7 ; see

23 also Brown Decl., ¶ 6 and Ex. B (partially executed version); Van Dalsem Decl. Ex. B (fully

24 executed version). Alden refused such pre-waiver discussions to ensure that if the firm declined

25 Brown’s case, it would not later be subject to disqualification if it took on the representation of an

26 adverse party, which is precisely what the Waiver provides:


27 Whereas, Quinn Emanuel is willing to discuss with Client Prospect the nature of the
Matter to assess the Matter and determine its interest in representing Client Prospect
28 with respect to the Matter, but wants to avoid the prospect that in doing so, should it

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OPPOSITION TO MOTION TO DISQUALIFY
1 decide not to take on Client Prospect’s representation with respect to the Matter, that
Quinn Emanuel would be conflicted from representing past, current or future Quinn
2 Emanuel clients in any litigation brought by Client Prospect, including but not limited
to the Matter;
3
Whereas, Client Prospect is willing and has agreed to allow Quinn Emanuel to gain
4 information about the Matter . . . and to allow Quinn Emanuel, under the conditions
specified in this Agreement, to be adverse to Client Prospect should Quinn Emanuel
5 decide not to accept the representation of Client Prospect regarding the Matter. . . .

6 5. Should Quinn Emanuel decide not to represent Client Prospect with respect to the
Matter, Quinn Emanuel may represent any entity . . . with respect to any matter or
7 case that is adverse to Client Prospect . . . including the Matter. . . .

8 Van Dalsem Decl., Ex. B (emphasis added). Brown acknowledged that he “understands that this

9 Agreement may materially affect his legal rights, and has been advised by his own counsel as well

10 as Quinn Emanuel to seek counsel with respect to this Agreement before signing it,” and that “he

11 is or may be waiving and relinquishing certain rights to disqualify Quinn Emanuel from further

12 representation adverse to Client Prospect.” Id.5

13 Brown attempts to downplay the Waiver by quoting portions of Alden’s explanatory email

14 to him, without attaching that email. See Brown Decl., ¶ 6. In fact, Alden sent a detailed email

15 explaining the purpose and meaning of the agreement, inviting further discussion, and offering to

16 locate separate counsel to advise Brown about it:

17 I’ve attached a waiver agreement I’d like you to sign. Because we get many calls
from different people interested in bringing lawsuits, many of which we do not take
18 on, we need to ensure that our discussions with potential clients do not result in us
being conflicted from acting for others down the road. In essence, this agreement
19 provides that if we do not end up representing you in this matter, you cannot
disqualify us in the (unlikely) event we’re hired to act against you in the future. The
20 likelihood of this ever happening is small, but it’s a precaution we need to take. If
you have any questions, I’d be happy to discuss them tomorrow or I can refer you to
21 another lawyer who could go over it with you.

22 See Alden Decl., Ex. A.6 Brown’s motion misleadingly quotes his testimony that he signed an

23 “engagement letter” with Quinn Emanuel (Mot. at 5), but no such letter or agreement exists. The

24
5
Brown’s initial, unsolicited email to Alden and others is not alleged as and could not be a
25 basis for disqualification. See, e.g., San Diego County Bar Ass’n Ethics Opinion 2006-1,
available at http://www.sdcba.org/index.cfm?Pg=ethicsopinion06-1 (lawyer owes no duty of
26 confidentiality regarding information disclosed in an unsolicited email).
6
Because Brown selectively quoted this email in the Motion, defendants informed plaintiff
27 that any potential claim of privilege was waived. Brown’s counsel then agreed that defendants
could review the email and submit it with this opposition. Van Dalsem Decl., ¶ 6.
28

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OPPOSITION TO MOTION TO DISQUALIFY
1 only document Brown ever signed was the Waiver, and it expressly disclaims an attorney-client

2 relationship, stating the firm’s assessment “shall not reflect that Quinn Emanuel has elected to

3 represent Client Prospect with respect to the Matter.” Van Dalsem Decl., Ex. B, at 3.

4 Quinn Emanuel Declines Brown’s Case. After Brown signed the Waiver, Brown had a
5 20-30 minute conversation with Alden on November 2, 2013. See Alden Decl., ¶ 13. Other than

6 the initial phone call and this conversation, Brown never spoke with anyone at Quinn Emanuel

7 again. Alden Decl., ¶ 15. Alden and Brown then exchanged several emails, but they “contain no

8 discussion of important or strategic issues, no suggestions, and no legal advice related to Mr.

9 Brown’s dispute.” Alden Decl., ¶ 17. Brown sent documents to Alden, but Alden never opened

10 or accessed them in any way, and returned the hard copy documents to Brown unopened. Id. at

11 ¶¶ 19-23. While Brown states that he engaged in “two months of discussions” with Alden (Mot. at

12 10 n.6), Alden spent a total of less than one hour speaking with Brown and evaluating his matter

13 before he declined the case. Id. at ¶ 27.

14 Quinn Emanuel Establishes An Ethical Screen. On April 23, 2013, defendants hired
15 Quinn Emanuel, confirmed in a written retainer agreement of the same date. Van Dalsem Decl.,

16 ¶ 2. On the same day, Quinn Emanuel screened Alden from this matter. Id. at ¶ 3. All Quinn

17 Emanuel personnel received, via email, an Ethical Screening Memorandum setting out rigorous

18 procedures by which Alden was to be ethically screened. Id. at Ex. A. These included instructions
19 to all personnel of the firm “not to discuss or share with Alden any information or materials that

20 relate in any way to the Snapchat Matter” and “not to seek to obtain, directly or indirectly, any

21 information from Alden relating to the Snapchat Matter,” instructions to Alden “not to discuss with

22 anyone in the Firm any aspect of the Snapchat Matter, or to seek any information in the Firm’s

23 possession concerning such matters” and “not to bring any documents or other materials to the

24 Firm containing any information relating to the Snapchat Matter,” and instructions to all file

25 keeper personnel “to not allow Alden access to any file materials related to the Snapchat Matter.”

26 Id. In addition, “[a]ccess to the Snapchat Matter on the firm’s computer system will be restricted
27 to those members of the firm working on the matter.” Id. All Quinn Emanuel attorneys working

28 on this matter have complied with this memorandum at all times, and none of them has received

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OPPOSITION TO MOTION TO DISQUALIFY
1 Brown’s confidential information. See Compendium of Quinn Emanuel Declarations. Alden will

2 not share in any of the fees related to this matter. Quinn Decl., ¶ 4.

3 Quinn Emanuel informed Brown’s counsel that Alden had been screened. Van Dalsem

4 Decl., ¶ 7. Brown nonetheless ignores Quinn Emanuel’s ethical screen in the Motion.7

5 Argument
6 The party moving to disqualify has the burden of proving by competent evidence that

7 disqualification is required. See Elliott v. McFarland Unified Sch. Dist., 165 Cal.App.3d 562, 572

8 (1985). “Motions to disqualify counsel are strongly disfavored . . . [and] should be subjected to

9 particularly strict judicial scrutiny.” Visa, 241 F. Supp. 2d at 1104 (quotations omitted). They

10 “often pose the very threat to the integrity of the judicial process that they purport to prevent,”

11 Gregori, 207 Cal.App.3d at 300-01, and “are often used as a tactical device to delay litigation.”

12 MGM, Inc. v. Tracinda Corp., 36 Cal.App.4th 1832, 1847 (1995).

13 “[D]isqualification usually imposes a substantial hardship on the disqualified attorney’s

14 innocent client, who must bear the monetary and other costs of finding a replacement. A client

15 deprived of the attorney of his choice suffers a particularly heavy penalty where . . . his attorney is

16 highly skilled in the relevant area of the law.” McPhearson v. Michaels Co., 96 Cal.App.4th 843,

17 849 (2002) (quoting Gregori, 207 Cal.App.3d at 300). Such is the case here. See Spiegel Decl.

18 The concerns are even greater where a potential client such as Brown—who sought out numerous
19 lawyers and law firms—uses preliminary discussions to seek to disqualify his opponents’ counsel.

20 See B.F. Goodrich Co. v. Formosa Plastics Corp., 638 F. Supp. 1050, 1055 (S.D. Tex. 1986)

21 (“[D]isqualifying all the lawyers interviewed by a company for prospective employment would

22 itself undermine the public’s confidence in the judicial process.”). Vicarious disqualification is

23 decided on a case-by-case basis (Kirk, 183 Cal.App.4th at 793-94), and the Court must “ensure that

24

25
7
This is not the first time that Brown has threatened disqualification in this case. Brown also
26 accused defendants’ former counsel—Cooley LLP—of being conflicted. See 4/29/13 Ltr. from R.
27 “shareholderatofp.Snapchat,
Mandlekar, 5 (Sarles Decl., Ex. I). Brown asserted at that time that because he claims to be a
Inc.,” Cooley LLP “would appear to owe a fiduciary duty to Plaintiff”
and Brown intended to conduct discovery into that issue. Id.
28

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OPPOSITION TO MOTION TO DISQUALIFY
1 literalism does not deny the parties substantial justice.” People v. SpeeDee Oil Change Sys., Inc,

2 20 Cal.4th 1135, 1144 (1999).

3 I. BROWN’S WAIVER PRECLUDES VICARIOUS DISQUALIFICATION


4 Before Alden ever spoke to Brown, Brown signed the Waiver which (1) expressly

5 contemplated the possibility that Quinn Emanuel would take on the representation of the

6 defendants in the matter under discussion, if the firm declined to represent Brown, and

7 (2) unequivocally waived any right to seek disqualification on that basis. Brown does not deny

8 that in the Waiver he waived the right to bring the very disqualification motion he has now

9 brought. Instead, Brown argues his waiver is unenforceable because (1) Quinn Emanuel was

10 required to get a “second waiver” once it determined to represent the defendants, and (2) the

11 agreement is unenforceable under the factors set forth in Visa. Brown in wrong. California courts

12 consistently enforce prospective waivers of conflicts. See, e.g., Maxwell v. Superior Court, 30

13 Cal.3d 606 (1982); Zador Corp. v. Kwan, 31 Cal.App.4th 1285 (1995) (reversing disqualification

14 order in light of prospective waiver); Sharp v. Next Entm’t, Inc., 163 Cal.App.4th 410 (2008)

15 (affirming denial of disqualification based on prospective waiver); see also Visa, 241 F. Supp. 2d

16 at 1105-10 (enforcing prospective waiver). This Court should do the same.

17 A. A “Second” Waiver Is Not Required


18 Brown argues (Mot. 11-12) that his prospective waiver is unenforceable because “a second
19 waiver is required under applicable ethical rules” once a “potential conflict” ripens into an “actual

20 one.” Mot. at 2, 11-12. But Brown bases this argument on a Rule that does not apply, and no

21 authority supports requiring a “second” waiver in the context here.

22 Brown cites the drafters’ notes to Rule 3-310(C)(2) of the Rules of Professional Conduct,

23 which state that “further informed written consent” may be needed once a potential adversity

24 between jointly-represented clients becomes actual. Mot. at 12. This Rule, however, applies “only

25 to the simultaneous representation of parties in the same action.” Visa, 241 F. Supp. 2d at 1104 n.4

26 (emphasis added); see Sharp, 163 Cal.App.4th at 429 (rule applies when “an attorney concurrently
27 represents more than one client in a matter in which there is an actual conflict”) (emphasis added);

28 Rule 3-310 Discussion (subparagraph (C)(2) applies to “concurrent representation of multiple

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OPPOSITION TO MOTION TO DISQUALIFY
1 parties in litigation or in a single transaction or in some other common enterprise or legal

2 relationship”) (emphasis added). This Rule thus has no application here, where Alden declined to

3 represent Brown long before the defendants engaged Quinn Emanuel.8 See Kehr Decl., at 7-8.

4 This distinction is critical, and Brown’s failure to recognize it infects his entire motion with

5 error. When a case involves “conflicts of interests arising from concurrent representations, . . .

6 courts focus on the attorney’s duty of loyalty,” and “[w]here an attorney concurrently represents

7 clients with directly adverse interests, in the same or wholly unrelated matters, the duty of loyalty

8 requires disqualification in all but few instances.” Sharp, 163 Cal.App.4th at 428 (emphasis

9 added). But only the duty of confidentiality could even arguably be at issue here. Quinn Emanuel

10 never represented Brown, it does not represent him now, and it has no divided loyalty. See

11 Speedee Oil, 20 Cal.4th at 1147, 1151-52 (see Mot. at 8-9) (termination of firm’s services to one of

12 two adverse parties “effectively ended the risk of divided loyalty”); Flatt v. Superior Court, 9

13 Cal.4th 275, 283-84 (1994) (see Mot. at 10) (“Where the potential conflict is one that arises from

14 the successive representation of clients with potentially adverse interests, the courts have

15 recognized that the chief fiduciary value jeopardized is that of client confidentiality. . . . The

16 primary value at stake in cases of simultaneous or dual representation is the attorney’s duty and the

17 client’s legitimate expectation-of loyalty, rather than confidentiality.”) (italics in original).

18 Brown’s failure to recognize these distinctions renders his authorities inapt, as virtually all
19 involve simultaneous representation of adverse clients, or a single lawyer representing both sides

20 in a dispute—neither of which is true here. Speedee Oil, 20 Cal.4th. at 1151 (“during overlapping

21 periods of time, the Shapiro firm and Disner [an attorney of counsel to the Shapiro firm] obtained

22 material confidential information from parties on opposite sides of the same litigation.” (emphasis

23 added)); Flatt, 9 Cal.4th at 284 (considering duty of loyalty); Civ. Serv. Comm’n v. Superior

24 Court, 163 Cal.App.3d 70, 81-82 (1984) (Mot. at 9) (county counsel who actively represented one

25 party switched to representing the adverse party); City Nat’l Bank v. Adams, 96 Cal.App.4th 315,

26
27
8
Brown concedes this case involves, at most, “successive representation.” Mot. at 14.
28

05201.23771/5426070.1
-9-
OPPOSITION TO MOTION TO DISQUALIFY
1 329-30 (2002) (Mot. at 9) (single attorney who actively represented plaintiff switched to

2 representing defendant in the same matter).

3 Brown cites no on-point authority that supports his second waiver argument. The Visa

4 decision that Brown cites enforced a prospective waiver even though there was no “second”

5 waiver—and even though the law firm in that case brought a substantial case against its own client

6 at the same time that it was representing that client pursuant to the waiver agreement. 241 F. Supp.

7 2d at 1102-03. Likewise, Zador reversed an order disqualifying counsel and ordered a prospective

8 waiver enforced. See Zador, 37 Cal.Rptr.2d at 764.9 Brown cites a 1989 opinion from the

9 Standing Committee on Professional Responsibility, but far from always requiring a second

10 waiver, that opinion recognized that a prospective waiver may be enforceable even where it allows

11 an attorney, in a joint-representation case, to use “otherwise confidential information” against his

12 own former client. See Formal Opinion 1989-115. And the Second District’s recent opinion in

13 Sharp, which Brown overlooks, also upheld a denial of disqualification based on a prospective

14 waiver without requiring any second waiver. 163 Cal.App.4th at 431.10

15 B. Brown’s Informed Written Waiver Should Be Enforced


16 As Visa explained, the “only inquiry that need be made,” when addressing a prospective

17 waiver, is “whether the waiver was fully informed.” Visa, 241 F. Supp. 2d at 1104. A prospective

18 waiver need not “specifically state the exact nature of the future conflict,” id., and “California law
19 does not require that every possible consequence of a conflict be disclosed for a consent to be

20 valid.” Zador, 31 Cal.App.4th at 1301. Brown argues (Mot. at 13-15) that the Waiver was not

21 informed under Visa, but this is incorrect. The Visa factors all favor enforcing the Waiver.

22 Breadth of the Waiver. Brown ignores the first Visa factor (241 F. Supp. 2d at 1106)
23 because the Waiver is narrow in scope. It only applies “should Quinn Emanuel decide not to

24
9
While Zador noted that the waiving party there “reaffirmed” his waiver at one point, “Zador
25 does not in fact require a second consent by a waiving party . . . .” Visa, 241 F. Supp. 2d at 1105.
10
26 prospectivea waivers
As practical matter, accepting Brown’s “second waiver” argument would mean that
are never enforceable, which plainly is not the law. If Quinn Emanuel had
sought a second waiver from Brown after it declined to represent him and took on the
27 representation of defendants, he obviously would have said no, thus rendering the promises he
made in the initial Waiver, which the firm relied on in agreeing to speak with him, illusory.
28

05201.23771/5426070.1
-10-
OPPOSITION TO MOTION TO DISQUALIFY
1 accept the representation of Client Prospect regarding the Matter,” and therefore only applies to the

2 limited discussions between the firm and a prospective client who the firm decides not to

3 represent. The Waiver also requires that Brown’s confidential information not be used against him

4 in any way. No case Brown cites involves such a narrow and specific waiver. The Waiver is

5 narrower than other prospective waivers that have been upheld by courts. See, e.g., Zador, 31

6 Cal.App.4th at 1303 (waiver did not require ethical wall and contained no restriction on use of

7 former client’s confidential information); Visa, 241 F. Supp. 2d at 1103-04 (waiver required

8 ethical wall but applied to simultaneous and ongoing representations). The advance waiver

9 agreements commonly used by large law firms are also much broader in scope. Kehr Decl. at 10.

10 Temporal Scope. The second Visa factor favors enforcement here because the Waiver
11 applies only to a narrow window of time: discussions with Brown about potential representation

12 before there is any engagement. Brown cites Concat LP v. Unilever PLC, 350 F. Supp. 2d 796

13 (N.D. Cal. 2004)—the only case he cites that granted disqualification notwithstanding a waiver—

14 but that case involved simultaneous, ongoing representation, and an “unlimited” time frame during

15 which the representations would continue. See id. at 819-20.

16 Quality of Conflict Discussion. Brown selectively quotes from Alden’s explanatory


17 email, Mot. at 14, which defendants submit in its entirety. Alden Decl., Ex. A. In this email,

18 Alden explains the purpose and meaning of the Agreement, offers to discuss it further, explains
19 that signing would relinquish Brown’s right to seek to disqualify the firm if it were later hired by

20 adverse parties, and offers to locate independent counsel for Brown to assess the Agreement. Id.

21 By contrast, in Concat—the only case Brown cites—there was “no evidence of any discussion of

22 the waiver.” 350 F. Supp. 2d at 820.

23 Specificity of the Waiver. This factor weighs in favor of enforcement for similar reasons.
24 The Waiver details a narrow and specific situation in which it applies: only if the firm declines

25 representation—and thus only in the event the firm possesses the inherently limited information

26 provided by a prospective client as to whom there is never any engagement—and even then, only
27

28

05201.23771/5426070.1
-11-
OPPOSITION TO MOTION TO DISQUALIFY
1 if the firm screens the affected attorney.11 Brown claims the agreement is insufficiently specific

2 because it did not identify all the parties he was considering suing, such as Benchmark Capital.

3 But Brown was expressly responsible for identifying potential adverse parties and apparently

4 never identified Benchmark, and for good reason: Benchmark first provided funding to Snapchat

5 more than a year after Brown was expelled from the project. Alden Decl., ¶ 21. Even today,

6 Brown and his lawyers have not named Benchmark as a defendant.12

7 The Nature of the Conflict. The conflict at issue is extremely limited. It does not involve
8 a simultaneous representation. Contrary to Brown’s argument (Mot. at 14), it also does not

9 involve “side-switching,” for no one at Quinn Emanuel ever actually represented Brown, and

10 Alden does not represent defendants.13 As Speedee Oil made clear, it is only when a firm

11 “simultaneously represents clients who have conflicting interests [that] a more stringent per se rule

12 of disqualification applies.” 20 Cal.4th at 1147. Zador also makes clear that a prospective waiver

13 that allows an attorney to become adverse to his own former client is enforceable. 31 Cal.App.4th

14

15
11
16 Rather,Brown cites Civil Serv. Comm’n, but that case did not involve a waiver agreement at all.
in a case involving “simultaneous representation” of a County and an independent
17 Commission affiliated with the County, the County claimed waiver by virtue of “an administrative
policy” that, by its terms, could “in no way be stretched to approve county counsel’s
18 representations of the County in litigation against the Commission, as has occurred here.” 163
Cal.App.3d at 83.
12
Brown argues that Alden should not have considered taking his case while Quinn Emanuel
19 was representing Benchmark in a separate, unrelated matter. This is perplexing, for Brown’s
claim that Quinn Emanuel never should have consulted with Brown in the first place has no
20 bearing on whether Brown’s transmittal of alleged confidential information to Alden requires

21 vicarious disqualification. In any event, Brown identified the potentially adverse parties for Quinn
Emanuel’s conflict check, and expressly acknowledged in the Waiver that “he has provided to
22 Quinn Emanuel a list of all potential defendants of the Matter,” which apparently did not include
Benchmark. Van Dalsem Decl., Ex. B.
13
Brown expressly agreed in the Waiver that there was no attorney-client relationship, see
23 Van Dalsem Decl., Ex. B at 3 (“The fact that Quinn Emanuel engages in any of these activities, or

24 any other action, shall not reflect that Quinn Emanuel has elected to represent Client Prospect
with respect to the Matter.”), and Brown does not even allege that he actually relied on Alden for
25 advice. See Kirk, 183 Cal.App.4th at 800 n.20 (distinguishing “an attorney who had a brief
preliminary meeting with counsel for the first client and an attorney who was actively involved
26 with the first client’s representation”); In re Marriage of Zimmerman, 16 Cal. App. 4th 556, 564
(1993) (“Here, appellant was never represented by Gack in this action; she merely engaged in a
27 preliminary consultation with him.”). Moreover, that Alden has been thoroughly screened from
this matter distinguishes Brown’s “side-switching” authorities. See supra at 8-9; see also Kehr
28 Decl. at 2-5, 11-12.

05201.23771/5426070.1
-12-
OPPOSITION TO MOTION TO DISQUALIFY
1 at 1290-91, 1300-01 (reversing disqualification order where attorney relied on prospective waiver

2 to terminate representation of client and bring suit against him on behalf of another client).

3 Interests of Justice. For the reasons above, the interests of justice weigh against
4 disqualification. Brown cites In re Complex Asbestos Litig., 232 Cal.App.3d 572 (1991) (Mot. at

5 15), but that case involved neither of the critical issues here: client consent and ethical screening.

6 Indeed, the court expressly held that either of those factors would tip the scales against

7 disqualification. See id. at 580 (“We hold that disqualification is appropriate unless there is

8 written consent or the law firm has effectively screened the employee . . . .”) (emphasis added).

9 Client Sophistication. Brown cites no case finding a waiving party insufficiently


10 sophisticated. The Supreme Court upheld a prospective waiver by an indigent criminal defendant

11 who sold his attorneys the literary rights to his life story, finding it sufficient that he understood

12 the agreement and suffered from “neither mental nor emotional incapacity.” See Maxwell, 30

13 Cal.3d at 606, 621. Brown is a Stanford graduate who majored in English, worked at a state

14 Attorney General’s office and consulted with numerous lawyers before Alden. Brown Depo. at

15 13:2-15:7; 25:14-31:11, 31:18-23 (Sarles Decl., Ex. D). Alden expressly offered to locate separate

16 counsel for Brown, and Brown does not claim he failed to grasp what he was waiving. Brown

17 cannot avoid his express waiver by professing a lack of sophistication.

18 II. QUINN EMANUEL’S ETHICAL SCREENING PREVENTS DISQUALIFICATION


19 Brown argues that Quinn Emanuel as a whole is subject to vicarious, “mandatory dis-

20 qualification” in light of Alden’s acquisition of confidential information (Mot. at 11), but fails to

21 cite a recent, controlling decision by the Second District which holds the opposite—that

22 “automatic disqualification is not required, and that, instead, there is a rebuttable presumption that

23 that the attorney’s knowledge of client confidences is imputed to the firm, which can be refuted by

24 evidence that the law firm adequately screened the attorney from the others at the firm rep-

25 resenting the adverse party.” Kirk v. First Am. Title Ins. Co., 183 Cal.App.4th 776 (2010)

26 (emphasis in original). The Supreme Court denied review of Kirk, and denied a request to de-
27 publish it. Kirk v. First Am. Title Ins. Co., No. S182775, 2010 Cal. LEXIS 5771 (Cal. June 23,

28 2010).

05201.23771/5426070.1
-13-
OPPOSITION TO MOTION TO DISQUALIFY
1 Kirk, like here, involved a prospective client whom the tainted attorney never represented.

2 Counsel for plaintiffs solicited an attorney’s services as a consultant, and disclosed confidential

3 information in the process. Id. at 786. The attorney declined and later joined a private law firm.

4 Id. at 787. Plaintiffs’ counsel then solicited the attorney’s services again, and again gave him

5 confidential documents. Id. The attorney again declined and stated that he had deleted the

6 documents because his law firm represented the defendant in the same actions. Id. Although the

7 tainted lawyer had acquired the opposing party’s confidential information about the same case, the

8 court held that vicarious disqualification of the firm was not automatic and could be rebutted by

9 proper ethical screening measures—even absent any waiver by the plaintiffs. Id. at 814. Since

10 Kirk, courts consistently deny vicarious disqualification motions where ethical walls are in place.

11 See Openwave Sys. Inc. v. Myriad France S.A.S., 2011 WL 1225978 (N.D. Cal. Mar. 31, 2011)

12 (denying disqualification motion based on ethical wall, citing Kirk); Barco N.V. v. Tech.

13 Properties Ltd., 2011 WL 841283 (N.D. Cal. Mar. 8, 2011) (same); Silicon Graphics, lnc. v. AT1

14 Technologies, Inc., 2010 WL 3860374 (W.D. Wis. Oct. 5, 2010) (same).

15 Brown relies on Meza v. H. Muehlstein & Co., 176 Cal.App.4th 969 (2009) and Goldberg

16 v. Warner/Chappel Music, Inc., 125 Cal.App.4th 752 (2005) in arguing for mandatory vicarious

17 disqualification (Mot. at 11), but Kirk itself distinguished those cases. 183 Cal.App.4th at 800,

18 814. As Kirk explained, it has never been the law in California that vicarious disqualification is
19 per se required when an attorney obtains confidential information. Id. at 799-801. Brown also

20 omits that Goldberg rejected mandatory disqualification and denied disqualification because the

21 attorney showed “that there was no opportunity for confidential information to be divulged.” 125

22 Cal.App.4th at 759-760. And Kirk clarified that in Meza, “[a]lthough we stated that an ethical wall

23 will generally not preclude disqualification, we did not address in what circumstances an ethical

24 wall may preclude disqualification, or whether the presumption can ever be rebutted.” 183

25 Cal.App.4th at 800 (emphasis in original). SpeeDee Oil, on which Brown also relies, discussed

26 without criticism cases holding that ethical screening prevented disqualification as to “successive
27 conflicting representations in substantially related matters,” 20 Cal. 4th at 1151-52, and courts

28 recognized even before Kirk that SpeeDee Oil “sen[t] a signal that the California Supreme Court

05201.23771/5426070.1
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OPPOSITION TO MOTION TO DISQUALIFY
1 may well adopt a more flexible approach to vicarious disqualification.” In re County of Los

2 Angeles, 223 F.3d 990, 995 (9th Cir. 2000); see also UMG Recordings, Inc. v. MySpace, Inc., 526

3 F.Supp.2d 1046, 1060-66 (C.D.Cal. 2007) (relying on ethical wall in denying disqualification).14

4 As required by Kirk, Quinn Emanuel “impose[d] screening measures when the conflict first

5 ar[ose].” Kirk, 183 Cal.App.4th at 810. Although Kirk disclaimed any list of features required for

6 a proper ethical screen, the measures that Quinn Emanuel undertook comply with the features

7 identified in Kirk. Compare Van Dalsem Decl., ¶ 3; Quinn Decl., ¶ 4, and Eskanos Decl. ¶¶ 3-4,

8 with Kirk, 183 Cal.App.4th at 810-11; 814 (“(1) physical, geographic and departmental separation

9 of attorneys, and staff; (2) prohibitions against and sanctions for discussing confidential matters;

10 (3) established rules and procedures for preventing access to confidential information and the files;

11 (4) procedures preventing a disqualified attorney from sharing in the profits from the

12 representation; and (5) continuing education in professional responsibility.”). Quinn Emanuel’s

13 screening rebuts the presumption that Brown’s confidential information has been shared with

14 attorneys representing defendants, and disqualification is thus improper even putting Brown’s

15 express, written waiver aside.

16 Conclusion
17 For the forgoing reasons, defendants submit that the Motion should be denied.

18 DATED: July 19, 2013 QUINN EMANUEL URQUHART &


SULLIVAN, LLP
19

20
By
21 Bruce E. Van Dalsem
Attorneys for Defendants
22

23
14
Courts also recognized even before Kirk that screening can protect against the presumption
24 of shared confidences when hiring former government lawyers, Chambers v. Sup. Ct., 121
25 Sup. Ct., 122893
Cal.App.3d (1981); private lawyers joining a government office, City of Santa Barbara v.
Cal.App.4th 17 (2004); an opposing counsel’s former paralegal or secretary, In re
Asbestos Litig., 232 Cal.App.3d 572 (1991); or an expert previously consulted by the
26 Complex
other side, Shadow Traffic Network v. Sup. Ct., 24 Cal.App.4th 1067, 1086-87 n. 13 (1994);
Digital Corp. v. Sup. Ct., 60 Cal.App.4th 1471 (1998). More recently, the Supreme Court
27 Western
held that the existence of an effective ethical wall would avoid vicarious disqualification of a
28 publicly-funded law firm. In re Charlisse C., 45 Cal.4th 145, 162-68 (2008).

05201.23771/5426070.1
-15-
OPPOSITION TO MOTION TO DISQUALIFY
1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
John B. Quinn (Bar No. 090378)
2 (j ohnquinn@quinnemanuel. com )
Bruce E. Van Dalsem (Bar No. 124128)
3 (brucevandalsem@quinnemanuel.com )
B. Dylan Proctor (Bar No. 219354)
4 (dylanpro ctor@quinnemanuel. com )
Joseph C. Sarles (Bar No. 254750)
5 (j osephsarles@quinnemanuel. com )
865 South Figueroa Street, 10 th Floor
6 Los Angeles, California 90017-2543
Telephone: (213) 443-3000
7 Facsimile: (213) 443-3100

8 Attorneys for Defendants


Snapchat, Inc., Toyopa Group, LLC,
9 Evan Thomas Spiegel, and Robert Cornelius
Murphy
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA

12 FOR THE COUNTY OF LOS ANGELES

13 CENTRAL DISTRICT

14 FRANK REGINALD BROWN IV, an CASE NO. BC501483


individual,
15 DECLARATION OF ANTHONY P.
Plaintiff, ALDEN IN SUPPORT OF DEFENDANTS'
16 OPPOSITION TO DISQUALIFICATION
vs. MOTION
17
SNAPCHAT, INC., a Delaware corporation; Dept.: 50
18 TOYOPA GROUP, LLC, a California Limited Hon. Conrad Aragon
Liability Company; EVAN THOMAS
19 SPIEGEL, an individual; ROBERT Complaint Filed: February 21, 2013
CORNELIUS MURPHY, an individual; and
20 DOES 1 through 25 inclusive,

21 Defendants.

22

23

24

25

26

27

28

05201.23771/5424724.1

ALDEN DECLARATION ISO DEFENDANTS' OPP'N TO DISOUALIFICATION MOTION


1 DECLARATION OF ANTHONY P. ALDEN
2 I, Anthony P. Alden, declare as follows:

3 1. I am an attorney at law duly licensed to practice and of good standing in the State

4 of California, and I am a partner in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP

5 ("the Firm"), counsel of record for Defendants Snapchat, Inc.; Toyopa Group, LLC; Evan Thomas

6 Spiegel; and Robert Cornelius Murphy ("Defendants"). I make the statements of fact contained in
7 this declaration on my own personal knowledge, except as to those matters stated upon
8 information and belief, and as to those matters I believe them to be true. If called as a witness in

9 this proceeding, I could and would competently testify to the matters set forth herein.

10 2. This declaration is in support of Defendants' Opposition to Plaintiff's Motion to

11 Disqualify Quinn Emanuel Urquhart & Sullivan, LLP from representation of Defendants in this

12 action ("the Motion").

13 3. In preparing this declaration, I have thoroughly reviewed Plaintiff's Motion, the


14 Declaration of Frank Brown ("Brown Decl.") in support thereof, all communications between me
15 and Mr. Brown in my possession, and my personal notes and timekeeping records concerning the

16 matter. On the basis of this review and my personal recollection, I dispute the accuracy of many

17 of Mr. Brown's allegations concerning the nature and extent of our communications. Contrary to
18 Mr. Brown's assertions, the sum total of my contact with him --- as confirmed by my personal
19 records — was limited to two telephones calls lasting no more than 40 minutes in total, exchanging
20 a waiver agreement, and gathering limited information in order to assess the matter. My records

21 confirm that in none of our oral and written communications did I discuss, in detail or otherwise,

22 (a) "the strengths and weakness" or "important and strategic issues" related to potential litigation,

23 (b) any "suggestions," (c) give him legal advice, or (d) inform Mr. Brown that I was in the process
24 of discussing the case with my partners at the Firm. (Cf. Brown Decl., at 2:17-20, 3:5-6.) Indeed,
25 my time records reflect that I spent no more than 2.1 hours on the matter in total, of which no

26 more than 30 minutes was actually devoted to substantive assessment.

27
28

-1- Case No. BC501483


ALDEN DECLARATION ISO DEFENDANTS' OPP'N TO DISQUALIFICATION MOTION
1 4. On October 31, 2012, I received an unsolicited email from Mr. Brown seeking

2 legal representation regarding the Snapchat matter. This is contrary to Mr. Brown's allegation that

3 he contacted me on November 1, 2012. (Brown Decl., at 1:18-21.)

4 5. Whenever a prospective client contacts the Firm seeking legal services, the Firm
5 has a standard practice and policy to obtain the client's written consent to a "Quinn Emanuel
6 Matter Assessment Waiver Agreement" ("Waiver"), such as the document attached as Exhibit B to
7 Mr. Brown's Declaration. Because the Firm receives many requests for legal services which it

8 ultimately declines, the Firm desires to ensure that it may be able thereafter to accept

9 representation adverse to a prospective client should it decide not to take on the prospective

10 client's matter. The Waiver advises the prospective client to seek counsel before signing it.
11 (Brown Decl., Ex. B, at 2, ¶ 7.)

12 6. My first telephone conversation with Mr. Brown was on November 1, 2012. It was

13 very short and less than 10 minutes long. Thus, Mr. Brown's allegation that we had an initial one

14 and a half hour conversation (Brown Decl., at 2:7-8) is inaccurate. Where a prospective client has

15 not yet signed a "Quinn Emanuel Matter Assessment and Waiver Agreement," my practice is to
16 tell the prospective client not to tell me any confidential information. The central purpose of my
17 first call with any prospective client is merely to obtain the names of the persons or entities that

18 the prospective client believes are potential adversaries in order to run a conflict check. I followed

19 these practices in my first brief telephone conference with Mr. Brown.

20 7. During my first telephone conversation with Mr. Brown, contrary to Mr. Brown's

21 allegations, I did not discuss, in any manner whatsoever, the "strengths and weaknesses" of any

22 proposed case; any "important" or "strategic issues" related to proposed litigation; and I did not
23 offer any "suggestions" or "legal advice." (Brown Decl., at 2:17-20.)

24 8. On or about November 2, 2012, consistent with the Firm's practice, I sent an email

25 to Mr. Brown enclosing a copy of the Waiver. A true and correct copy of my November 2, 2012

26 email to Mr. Brown, attaching a copy of the proposed Waiver, is attached to this declaration as

27 Exhibit A. I understand that Mr. Brown's counsel has agreed that this November 2, 2012 email
28 may be disclosed and used in the instant Motion.

-2- Case No. BC501483


ALDEN DECLARATION ISO DEFENDANTS OPP'N TO DISOUALIFICATION MOTION
1 9. In my November 2, 2012 email, I expressly informed Mr. Brown that one of the

2 purposes of the Waiver was to ensure that discussions with prospective clients do not result in the

3 Firm being conflicted in future matters:

4 "Because we get many calls from different people interested in

5 bringing law suits, many of which we do not take on, we need to

6 ensure that our discussions with potential clients do not result in us

7 being conflicted from acting for others down the road."

8 (Ex. A, sentence 4.)

9 10. In that same email, I informed Mr. Brown that "this [waiver] agreement provides
10 that if we do not end up representing you in this matter, you cannot disqualify us in the (unlikely)

11 event we're hired to act against you in the future." (Ex. A., sentence 5.) Rather than downplaying

12 the importance of the Waiver, I expressly informed Mr. Brown that, by signing the Waiver, he was

13 agreeing that the Firm could represent Defendants against him in this action should the Firm
14 decline to represent him, and that he was giving up his right to bring this very type of motion

15 against the Firm in the future.

16 11. Finally, in the same November 2, 2012 email, I offered to refer Mr. Brown to

17 another lawyer who could go over the Waiver with Mr. Brown. (Ex. A, sentence 7.)

18 12. Mr. Brown, has disclosed that on November 2, 2012, he signed and returned the

19 Waiver to me. (Brown Decl., Ex. B.) In the Waiver, Mr. Brown expressly agreed that any

20 information given to the Firm prior to his signing the Waiver was not confidential. (Brown Decl.,

21 Ex. B, ¶ 1.)

22 13. After Mr. Brown signed and returned the Waiver, I had a second telephonic

23 conversation with him on November 2, 2012. This call was a bit longer, perhaps 20 to 30 minutes

24 long. During the November 2, 2012 telephone call, I tried to gather information from Mr. Brown

25 about the facts and circumstances of his dispute in order to assess the matter.

26 14. During this second telephone conversation, contrary to Mr. Brown's allegations, I

27 did not discuss, in any manner whatsoever, the strengths and weaknesses of any proposed case,

28 any important and strategic issues related to the proposed litigation, and I did not offer any

Case No. BC501483


ALDEN DECLARATION ISO DEFENDANTS OPP'N TO DISQUALIFICATION MOTION
1 suggestions or legal advice. I did not offer legal advice about Mr. Brown's dispute or discuss
2 strengths, weaknesses or strategy, because I did not believe that I had enough information and had
3 not conducted any legal research to have such discussions. I had not had any recent cases in the

4 area to which it seemed to me that Mr. Brown's allegations pertained, and it is not my practice to

5 offer "off-the-cuff' advice in these circumstances.

6 15. I do not recall and can find no records of any other telephone call with Mr. Brown.
7 Thus, I do not believe that Mr. Brown's allegations that we had "several" telephone calls or that
8 we had an "initial one-and one half hour conversation" are accurate. (Brown Decl., at 2:7-8.)

9 16. In preparing this declaration, I reviewed all emails in my possession from Mr.

10 Brown to me and from me to Mr. Brown. Without revealing the content of those emails, from the

11 time that Mr. Brown first contacted me on October 31, 2012, until I informed Mr. Brown that the

12 Firm would not represent him on January 10, 2013, there were a total of 22 emails between us.
13 Mr. Brown sent me a total of 10 email communications. I sent him a total of 12 email

14 communications.

15 17. Contrary to Mr. Brown's Declaration at page two, lines 17-18, in none of the 22

16 emails exchanged between us did I discuss the strengths and weaknesses of Mr. Brown's potential
17 case in any manner. The emails between Mr. Brown and me contain no discussion of important

18 or strategic issues, no suggestions, and no legal advice related to Mr. Brown's dispute, contrary to

19 the implication of Mr. Brown's declaration at page two, lines 18-20.

20 18. While Mr. Brown may assert that these emails are privileged, the actual content of

21 the emails contains no facts or information related to Mr. Brown's dispute which would be

22 confidential. Contrary to Mr. Brown's allegations: (1) the content of Mr. Brown's and my email

23 exchange did not include "issues we considered important for the prosecution of this case" (see
24 Brown Decl., at 2:15-16); (2) the content of Mr. Brown's emails did not inform me of the status of

25 his "case" (see Brown Decl., at 3:4-5); and (3) I did not "periodically inform" Mr. Brown that I
26 "was in the process of discussing the case with [my] partners at Quinn Emanuel" (see Brown

27 Decl., at 3:5-6.) I will submit these 22 emails for the Court's in camera review if the Court so

28 orders or if Mr. Brown consents.

-4- Case No. BC501483


ALDEN DECLARATION ISO DEFENDANTS OPP'N TO DISOUALIFICATION MOTION
1 19. Mr. Brown also alleges that he sent me "key documents." (Brown Decl., at 2:23-

2 25.) As set forth below, I did not review any of the documents sent to me by Mr. Brown except

3 possibly a published article.

4 20. First, Mr. Brown sent me a package on or after November 14, 2012. (Brown Decl.,

5 ¶ 11.) The package was in a sealed envelope and I expressly did not open it. From the time I

6 received the package, presumably containing the "USB key," until I gave it to my assistant to send

7 to Plaintiff's counsel on or after February 21, 2013, the package remained sealed. Due to the press

8 of my caseload at the time, I never opened the envelope; I never accessed the USB key; and I

9 never looked at or reviewed any documents thereon.

10 21. Next, on December 12, 2012, Mr. Brown sent me an article published on the

11 Internet announcing that Benchmark Capital was funding Snapchat. (Cf. Brown Decl., at 2:26-

12 27.) Not only has Mr. Brown publicly disclosed that he informed me about this article (Id.), but

13 the article was never confidential to begin with, because it was at the time and continues to be
14 public information. As Mr. Brown has disclosed, this article reported that Benchmark funded

15 Snapchat sometime around December 12, 2012, more than a year after Mr. Brown was no longer

16 involved in the project.

17 22. Last, on December 15, 2012, Mr. Brown sent me an email attaching three
18 documents. Because of the press of my workload, I did not read them at the time I received them

19 or at any time prior to my preparation of this declaration. I understand that all three of these

20 documents have been produced and disclosed in the instant action, and that they are therefore no

21 longer confidential or privileged.

22 23. Thus, at no point in time prior to the preparation of this declaration did I review any

23 documents that Mr. Brown sent to me that could be considered confidential.

24 24. Mr. Brown's declaration alleges that I "periodically informed [him] that [I] was in

25 the process of discussing the case with [my] partners at Quinn Emanuel." I dispute that I so

26 advised Mr. Brown orally or in writing. I have been able to find only one email from me to Mr.
27 Brown concerning the Firm's internal process, which, contrary to Mr. Brown's allegations, does

28 not refer to a discussion with any partner about the case. (Brown Decl., at 3:5-6.)

-5- Case No. BC501483


ALDEN DECLARATION ISO DEFENDANTS' OPP'N TO DISOUALIFICATION MOTION
1 25. After completing an assessment in this type of case, the next step in the Firm's
2 internal process would be to present the matter to the appropriate management committee for
3 consideration of the costs and benefits of the Firm representing the client prospect. Due to the
4 Thanksgiving and the end-of-year Holiday season, press of litigation matters I was handling at the

5 time and other unforeseen events, I did not continue my case assessment, did not discuss my

6 assessment with any other member of the Firm, and did not present Mr. Brown's potential case for

7 consideration to a management committee or to any other member of the Firm for representation
8 by the Firm. I also never gave suggestions, counsel or advice to Mr. Brown about a potential case,

9 including appropriate potential defendants; never discussed the strengths and weaknesses of his

10 potential case; and never discussed important or strategic issues related to the potential case,

11 including appropriate potential defendants.

12 26. On January 10, 2012, I informed Mr. Brown that the Firm and I would not

13 represent him. Thereafter, I never considered representing him again.

14 27. My time records reflect that I spent about 2.1 hours in total in assessing this matter

15 before I informed Mr. Brown that the Firm would not represent him. The vast majority of this

16 time was spent in obtaining and analyzing a conflict of interest check, preparing the Waiver, and

17 preparing an email transmitting the Waiver to Mr. Brown. Not more than 30 to 40 minutes of that
18 time was spent in telephone conferences with Mr. Brown, which involved no legal advice,

19 suggestions, or discussions of any strengths and weaknesses or strategy in a potential case. Except
20 for reviewing a few publicly available news articles, I never undertook or caused to be undertaken,

21 any legal or factual research or analyses of any nature relating to the matter. I spent less than 30

22 minutes in assessing the substance of a potential claim.

23 28. Since April 23, 2013, I have been subject to an ethical screen regarding this action.

24 On or about July 3, 2013, I retained attorney Ellen R. Peck — a specialist in legal ethics — to
25 represent me in connection with the preparation of this declaration and to coordinate with other

26 III

27 II!

28 III

-6- Case No. BC501483


ALDEN DECLARATION ISO DEFENDANTS' OPP'N TO DISOUALIFICATION MOTION
1 members of the Firm. I have not communicated with any other Firm member about the content or

2 the preparation of my declaration.

3 I declare under penalty of perjury under the laws of the State of California that the

4 foregoing is true and correct.

51 Executed this 17th day of July 2013, at Los Angeles, California.

In
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-7- Case No. BC501483


ALDEN DECLARATION ISO DEFENDANTS' OPP'N TO DISOUALIFICATION MOTION
Exhibit A
From: Anthony Alden
Sent: Thursday, November 01, 2012 10:00 PM
To: 'Frank Brown'
Subject: RE: SnapChat
Attachments: Matter Assessment Waiver Agreement.pdf

Reggie: it was good speaking to you today. Our conflicts check came up clear, so no issues there. I've attached a waiver
agreement I'd like you to sign. Because we get many calls from different people interested in bringing lawsuits, many of
which we do not take on, we need to ensure that our discussions with potential clients do not result in us being
conflicted from acting for others down the road. In essence, this agreement provides that if we do not end up
representing you in this matter, you cannot disqualify us in the (unlikely) event we're hired to act against you in the
future. The likelihood of this ever happening is small, but it's a precaution we need to take. if you have any questions,
I'd be happy to discuss them tomorrow or I can refer you to another lawyer who could go over it with you.

Thanks,

Anthony

Anthony Alden
Associate,
Quinn Emanuel Urquhart Oliver & Hedges LLP.

865 S. Figueroa St 10th Floor


Los Angeles, Ca 90017
213-443-3159 Direct
213.443.3000 Main Office Number
213.443.3100 FAX
anthonyalden@quinnemanuel.com
www.auinnemanuel.com
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