Evidence Record

Exhibit A – Atlantic Wave, et al. v. Cyberlux, et al.: Meet and Confer on Anti-SLAPP

9 am tomorrow works. We can do the Rule 26(f) conference ("the parties must confer as soon as practicable") and then meet and confer regarding your Motions. I understand you are not interested in...

Type: exhibit
Court: SDCAL
Case: Atlantic Wave / Cyberlux litigation
Pages: 6
Lines: 170
SHA-256: e679fd9b1bc7

DISTIL analysis

DISTIL Run

Profile

Standard

Version

Doc Type

email_chain_exhibit

Total Nodes

Node Legend

Entity (ENT)

Event (EVT)

Claim (CLM)

Anchor (ANC)

Omission (OMI)

Tension (TEN)

Tell (TEL)

Inference (INF)

Hypothesis (HYP)

Stage 1

Index

Orientation · No nodes

Document Classification

email_chain_exhibit litigation_counsel federal_civil_litigation 2024-03-20 to 2024-03-26

chambers_rules_disputeanti_slapp_motionmeet_and_confer_adequacy

Analytical Frame

procedural_compliance_dispute

Analytical Summary

This exhibit comprises an email chain between opposing counsel in Atlantic Wave v. Cyberlux concerning meet and confer requirements prior to filing an Anti-SLAPP motion. Gabe Wright (defense counsel) challenges the adequacy of David Keithly's (plaintiff counsel) March 14 phone call as satisfying Judge Montenegro's Chambers Rules requiring a thorough conference at least seven days before motion filing. Wright characterizes Keithly's call as merely announcing intent to file rather than conducting a substantive discussion, noting co-counsel was unavailable and no advance notice was provided. The parties eventually schedule a March 26 call to address both the Anti-SLAPP meet and confer and Rule 26 conference obligations, though Wright maintains the Anti-SLAPP meet and confer is now procedurally deficient.

Key Points

David Keithly called Gabe Wright on March 14, 2024 to announce intent to file Anti-SLAPP motion on March 21
Wright contends the call did not satisfy Judge Montenegro's requirement for thorough conference at least seven days before filing
Wright argues the call was merely announcement of intent, not substantive discussion, and co-counsel was unavailable
Wright proposes additional FRCP 12(e) motion seeking clarification on whether complaint filing was 'error' versus 'unauthorized'
Parties ultimately schedule March 26, 2024 conference call to discuss both Anti-SLAPP and Rule 26 obligations

Stage 2

Core — Entities, Events, Claims

19 nodes

ENT-001

Entity

Gabe Wright

Partner at Hahn Loeser & Parks LLP representing Cyberlux Corporation and Mark D. Schmidt in Atlantic Wave litigation

Page 2 — Gabe Wright | Partner Hahn Loeser & Parks LLP | MORE THAN A CENTURY OF CLIENT SERVICE Tel: (619) 810-4390

ENT-002

Entity

David M. Keithly

Partner at Mortenson Taggart Adams LLP representing Atlantic Wave and plaintiffs in litigation against Cyberlux

Page 3 — David M. Keithly Partner MORTENSON TAGGART ADAMS LLP tel: (949) 774-2107

ENT-003

Entity

Judge Montenegro

Federal judge presiding over Atlantic Wave v. Cyberlux case with specific Chambers Rules governing motion practice

Page 5 — Section III(A) of Judge Montenegro's Chambers Rules require a conference of counsel prior to filing of noticed motions

ENT-004

Entity

Trevor Locko

Co-counsel at Hahn Loeser & Parks LLP working with Gabe Wright on Cyberlux defense

Page 2, 3, 4 — Trevor Locko <TLocko@hahnlaw.com>

ENT-005

Entity

Edward W. Gray Jr.

Counsel at Thompson Coburn copied on meet and confer correspondence

Page 2, 3, 4 — Gray, Edward W. Jr. < EGray@thompsoncoburn.com>

ENT-006

Entity

Atlantic Wave

Plaintiff entity in litigation against Cyberlux Corporation represented by Mortenson Taggart Adams LLP

Page 2 — Atlantic Wave, et al. v. Cyberlux, et al.

ENT-007

Entity

Cyberlux Corporation

Defendant corporation in Atlantic Wave litigation represented by Hahn Loeser & Parks LLP

Page 5 — Cyberlux Corporation, Inc. and Mark D. Schmidt's Amended Counterclaim

ENT-008

Entity

Mark D. Schmidt

Individual defendant and counterclaimant with Cyberlux Corporation in Atlantic Wave litigation

Page 5 — Cyberlux Corporation, Inc. and Mark D. Schmidt's Amended Counterclaim

EVT-001

Event

March 13, 2024 voicemail from Keithly

David Keithly left voicemail for Gabe Wright generally asking him to call back, without specifying purpose regarding Anti-SLAPP motion

Page 5 — The genesis of that call was a telephone message you left for me on March 13th generally asking me to give you a call.

EVT-002

Event

March 14, 2024 telephone call

Keithly called Wright to announce intent to file Anti-SLAPP motion and stated he was calling to meet and confer, declaring 'this is the meet and confer call' when Wright requested formal conference

Page 5 — On the March 14th call, you stated that you intend to file an Anti-SLAPP Motion in response to Cyberlux Corporation, Inc. and Mark D. Schmidt's Amended Counterclaim and that you were calling to meet and confer on the Motion... Your response was that "this is the meet and confer call" and that you would be filing your anti-SLAPP Motion on March 21, 2024

EVT-003

Event

March 20, 2024 email from Wright

Wright sent formal email challenging adequacy of March 14 call and requesting proper meet and confer conference on March 25 or 26, 2024

Page 5 — This correspondence follows our telephone conversation from March 14, 2024... To satisfy the Court's requirement that a thorough discussion occur, we are requesting that an actual conference of counsel occur on this Anti-SLAPP. We are available for such a discussion on the following dates: March 25 or March 26, beginning at 8:00 a.m. pacific time.

EVT-004

Event

March 25, 2024 evening exchange

Wright sent email at 5:35 PM challenging meet and confer timing and proposing March 26 9 AM call; Keithly responded at 5:51 PM agreeing to 9 AM call for both Rule 26 conference and meet and confer

Page 3 — From: Gabe Wright <GWright@hahnlaw.com> Date: Monday, March 25, 2024 at 5:35 PM... We are happy to conduct that meet and confer with you on Tuesday, March 26, 2024 at 9:00 a.m. Please confirm your availability. From: David M. Keithly <dkeithly@mortensontaggart.com> Sent: Monday, March 25, 2024 5:51 PM... 9 am tomorrow works. We can do the Rule 26(f) conference

EVT-005

Event

March 26, 2024 conference call scheduled

Conference call scheduled for 9:00 AM with dial-in number 866-321-0174 and guest code 72125609 to address Anti-SLAPP meet and confer and Rule 26 conference

Page 2 — Below is the information for our 9:00 a.m. call: Dial: 866-321-0174 Guest Code: 72125609

CLM-001

Claim

Keithly's position: March 14 call satisfied meet and confer

David Keithly asserted on March 14 call that the telephone conversation itself constituted the meet and confer required by court rules

Page 5 — Your response was that "this is the meet and confer call"

CLM-002

Claim

Wright's position: March 14 call inadequate

Gabe Wright contends the March 14 call was not a proper conference because it was merely an announcement without advance notice, did not allow for thorough discussion, and co-counsel could not participate

Page 5 — The telephone call on March 14th to announce your intent to file an Anti-SLAPP Motion was not a conference of counsel or a thorough discussion of the substance of the contemplated motion and any potential resolution. Further, my co-counsel was out of the country and unable to participate in such a call at that time

CLM-003

Claim

Seven-day rule violated

Wright argues that Judge Montenegro's Chambers Rules require conference at least seven days prior to motion filing, which timing was not satisfied

Page 5 — Section III(A) of Judge Montenegro's Chambers Rules require a conference of counsel prior to filing of noticed motions... The conference must take place at least seven (7) days prior to the filing of the motion.

CLM-004

Claim

Meet and confer now futile for Anti-SLAPP

Wright asserts that having meet and confer discussion after motion already filed is procedurally meaningless, comparing it to 'closing the barn door after the horse is out'

Page 3 — With respect to your anti-SLAPP Motion, Judge Montenegro's Chambers Rules are clear that the meet and confer conference must take place seven days prior to the filing of the motion. Unless you are going to withdraw your motion in order to allow the parties to have a thorough meet and confer as required by Judge Montenegro, having that discussion now is nothing more than closing the barn door after the horse is out.

CLM-005

Claim

Intent to file FRCP 12(e) motion

Wright announces intent to file Motion for More Definitive Statement seeking clarification on whether complaint filing was 'error' versus 'unauthorized' as represented by opposing counsel

Page 3 — We do want to have a thorough meet and confer with you in accordance with Section III(A) of Judge Montenegro's Chambers Rules to discuss our intention to bring a FRCP 12(e) Motion for a More Definitive Statement in response to your Motion to Dismiss Without Prejudice and in response to your Anti-SLAPP Motion. Specifically, we will be seeking a more definitive statement of what is meant by Atlantic Wave alleging as a core issue in its Motions that the filing of its Complaint was an "error" - particularly where you and Mr. Sadigh have represented to us that it was "unauthorized" and not "an error."

CLM-006

Claim

Rule 26 conference deadline

Wright states deadline to complete Rule 26(f) conference is April 24, 2024 and proposes conducting it on April 10 or thereafter after responding to pending motions

Page 4 — As for the parties' Rule 26 Conference, the deadline to complete this Conference is April 24, 2024. We are presently responding to two motions filed on your part. We will be prepared to proceed with a Rule 26 Conference on April 10th or thereafter.

Stage 3

In Situ — Quotations, Tells, Tensions, Questions

6 nodes

QUO-001

Quotation

Keithly: 'this is the meet and confer call'

Direct statement from Keithly during March 14 call asserting the telephone conversation itself satisfied meet and confer obligations

Page 5 — Your response was that "this is the meet and confer call" and that you would be filing your anti-SLAPP Motion on March 21, 2024, unless we convinced you otherwise before then.

QUO-002

Quotation

Wright: 'closing the barn door after the horse is out'

Wright's metaphor characterizing post-filing meet and confer as procedurally futile

Page 3 — Unless you are going to withdraw your motion in order to allow the parties to have a thorough meet and confer as required by Judge Montenegro, having that discussion now is nothing more than closing the barn door after the horse is out.

TEN-001

Tension

Competing definitions of adequate meet and confer

Fundamental disagreement over what constitutes sufficient meet and confer: Keithly treating brief announcement call as adequate versus Wright requiring advance notice, thorough discussion, and co-counsel participation

Page 5 — Your response was that "this is the meet and confer call" and that you would be filing your anti-SLAPP Motion on March 21, 2024... The telephone call on March 14th to announce your intent to file an Anti-SLAPP Motion was not a conference of counsel or a thorough discussion of the substance of the contemplated motion

TEN-002

Tension

Error versus unauthorized characterization dispute

Inconsistency between Atlantic Wave's motion characterizing complaint filing as 'error' versus prior representations by counsel that it was 'unauthorized', forming basis for Wright's planned 12(e) motion

Page 3 — Specifically, we will be seeking a more definitive statement of what is meant by Atlantic Wave alleging as a core issue in its Motions that the filing of its Complaint was an "error" - particularly where you and Mr. Sadigh have represented to us that it was "unauthorized" and not "an error."

QST-001

Question

Did March 14 call satisfy Chambers Rules?

Whether the March 14 telephone call met Judge Montenegro's requirement for thorough conference at least seven days before motion filing, given lack of advance notice, co-counsel absence, and limited substantive discussion

Page 5 — Section III(A) of Judge Montenegro's Chambers Rules require a conference of counsel prior to filing of noticed motions. Specifically, it states, "Any party contemplating the filing of any noticed motion before this Court must first contact opposing counsel to discuss thoroughly - preferably in person - the substance of the contemplated motion and any potential resolution. The conference must take place at least seven (7) days prior to the filing of the motion."

QST-002

Question

What remedy for deficient meet and confer?

Whether defense counsel will seek withdrawal of Anti-SLAPP motion based on inadequate meet and confer, or what other procedural remedy might be available for alleged Chambers Rules violation

Stage 4

Interpretive — Inferences, Omissions, Patterns

5 nodes

INF-001

Inference

Strategic timing objection

Wright's procedural objection may serve dual strategic purposes: establishing record for potential motion to strike or continue Anti-SLAPP briefing, and asserting more adversarial posture regarding meet and confer obligations going forward

Page 3 — With respect to your anti-SLAPP Motion, Judge Montenegro's Chambers Rules are clear that the meet and confer conference must take place seven days prior to the filing of the motion... We do want to have a thorough meet and confer with you in accordance with Section III(A) of Judge Montenegro's Chambers Rules to discuss our intention to bring a FRCP 12(e) Motion

INF-002

Inference

Co-counsel availability as procedural shield

Wright's emphasis on co-counsel Trevor Locko being out of country and unavailable provides objective basis for inadequacy claim while avoiding direct accusation of bad faith by opposing counsel

Page 5 — Having not been provided advance notice of the purpose of the call or the meet and confer, I advised you that I would need to bring my co-counsel into the conversation... Further, my co-counsel was out of the country and unable to participate in such a call at that time or any sooner.

INF-003

Inference

Error/unauthorized discrepancy signals materiality

Wright's intent to seek Rule 12(e) clarification on error versus unauthorized characterization suggests this distinction may be legally significant to defenses or counterclaims, potentially relating to authority to file suit or basis for sanctions

OMI-001

Omission

No response to March 20 email before March 25

Notable gap between Wright's March 20 formal objection email and Keithly's March 25 response, with no indication Keithly addressed the procedural concerns during that five-day period

Page 4, 5 — From: Gabe Wright <GWright@hahnlaw.com> Date: Wednesday, March 20, 2024 at 4:23 PM... From: David M. Keithly <dkeithly@mortensontaggart.com> Sent: Monday, March 25, 2024 10:05 AM

OMI-002

Omission

No withdrawal or cure offer from Keithly

Keithly's responses do not address Wright's suggestion that motion could be withdrawn to allow proper meet and confer, nor offer any procedural cure for alleged Chambers Rules deficiency

Extracted text

6 pages · 8979 characters

EXHIBIT A

From: Gabe Wright Sent: Tuesday, March 26, 2024 8:08:36 AM To: David M. Keithly <dkeithly@mortensontaggart.com> Cc: Gray, Edward W. Jr. < EGray@thompsoncoburn.com>; Trevor Locko <TLocko@hahnlaw.com> Subject: RE: Atlantic Wave, et al. v. Cyberlux, et al. : Meet and Confer on Anti-SLAPP

Thanks, David:

Below is the information for our 9:00 a.m. call:

Dial: 866-321-0174 Guest Code: 72125609

HAHN HL LOESER attorneys at law

Chambers RANKED IN USA

Gabe Wright

Gabe Wright | Partner

Hahn Loeser & Parks LLP | MORE THAN A CENTURY OF CLIENT SERVICE Tel: (619) 810-4390 | Fax: (619) 810-4391 GWright@hahnlaw.com | hahnlaw.com One America Plaza, 600 West Broadway, Suite 1500 | San Diego, CA 92101 | Download my V-Card Hahn Loeser & Parks LLP is a full-service law firm with a national footprint and international reach, with offices in Cleveland, Columbus, Naples, Fort Myers, San Diego, and Chicago.

This email may contain information that is confidential or privileged, and it is intended only for the addressee(s). If you are not the intended recipient, you are prohibited from using, copying, or distributing this email, its contents, or any attachment.

From: David M. Keithly <dkeithly@mortensontaggart.com>

To: Gabe Wright <GWright@hahnlaw.com> Cc: Gray, Edward W. Jr. < EGray@thompsoncoburn.com>; Trevor Locko <TLocko@hahnlaw.com> Subject: Re: Atlantic Wave, et al. v. Cyberlux, et al. : Meet and Confer on Anti-SLAPP

Gabe -

am tomorrow works. We can do the Rule 26(f) conference ("the parties must confer as soon as practicable") and then meet and confer regarding your Motions. I understand you are not interested in further meeting and conferring on the Anti-SLAPP.

Best,

David M. Keithly Partner MORTENSON TAGGART ADAMS LLP

tel: (949) 774-2107 | fax: (949) 774-2545

dkeithly@mortensontaggart.com https://mortensontaggart.com 300 Spectrum Center Drive, Suite 1200, Irvine, CA 92618

From: Gabe Wright <GWright@hahnlaw.com> Date: Monday, March 25, 2024 at 5:35 PM To: David M. Keithly <dkeithly@mortensontaggart.com> Cc: Gray, Edward W. Jr. < EGray@thompsoncoburn.com>, Trevor Locko <TLocko@hahnlaw.com> Subject: RE: Atlantic Wave, et al. v. Cyberlux, et al. : Meet and Confer on Anti-SLAPP

CAUTION: This email originated from outside Mortenson Taggart Adams LLP. Exercise caution when opening attachments or clicking links, especially from unknown senders.

David,

With respect to your anti-SLAPP Motion, Judge Montenegro's Chambers Rules are clear that the meet and confer conference must take place seven days prior to the filing of the motion. Unless you are going to withdraw your motion in order to allow the parties to have a thorough meet and confer as required by Judge Montenegro, having that discussion now is nothing more than closing the barn door after the horse is out.

We do want to have a thorough meet and confer with you in accordance with Section III(A) of Judge Montenegro's Chambers Rules to discuss our intention to bring a FRCP 12(e) Motion for a More Definitive Statement in response to your Motion to Dismiss Without Prejudice and in response to your Anti-SLAPP Motion. Specifically, we will be seeking a more definitive statement of what is meant by Atlantic Wave alleging as a core issue in its Motions that the filing of its Complaint was an "error" - particularly where you and Mr. Sadigh have represented to us that it was "unauthorized" and not "an error." We are happy to conduct that meet and confer with you on Tuesday, March 26, 2024 at 9:00 a.m. Please confirm your availability.

As for the parties' Rule 26 Conference, the deadline to complete this Conference is April 24, 2024. We are presently responding to two motions filed on your part. We will be prepared to proceed with a Rule 26 Conference on April 10th or thereafter.

HAHN HL LOESER attorneys at law

Chambers RANKED IN USA

Gabe Wright

Gabe Wright | Partner Hahn Loeser & Parks LLP | MORE THAN A CENTURY OF CLIENT SERVICE

Tel: (619) 810-4390 | Fax: (619) 810-4391 GWright@hahnlaw.com | hahnlaw.com One America Plaza, 600 West Broadway, Suite 1500 | San Diego, CA 92101 | Download my V-Card Hahn Loeser & Parks LLP is a full-service law firm with a national footprint and international reach, with offices in Cleveland, Columbus, Naples, Fort Myers, San Diego, and Chicago.

From: David M. Keithly <dkeithly@mortensontaggart.com>

Sent: Monday, March 25, 2024 10:05 AM To: Gabe Wright <GWright@hahnlaw.com> Cc: Gray, Edward W. Jr. < EGray@thompsoncoburn.com>; Trevor Locko <TLocko@hahnlaw.com>

Subject: Re: Atlantic Wave, et al. v. Cyberlux, et al. : Meet and Confer on Anti-SLAPP

Hi Gabe -

Thank you for getting back to me. Does 9 a.m. PDT tomorrow work? We can discuss the Motion and hold our Rule 26 conference.

Best,

David M. Keithly Partner MORTENSON TAGGART ADAMS LLP

tel: (949) 774-2107 | fax: (949) 774-2545

dkeithly@mortensontaggart.com

https://mortensontaggart.com

From: Gabe Wright <GWright@hahnlaw.com> Date: Wednesday, March 20, 2024 at 4:23 PM To: David M. Keithly <dkeithly@mortensontaggart.com> Cc: Gray, Edward W. Jr. < EGray@thompsoncoburn.com>, Trevor Locko <TLocko@hahnlaw.com> Subject: Atlantic Wave, et al. v. Cyberlux, et al. : Meet and Confer on Anti-SLAPP

CAUTION: This email originated from outside Mortenson Taggart Adams LLP. Exercise caution when opening attachments or clicking links, especially from unknown senders.

Dear Mr. Keithly,

This correspondence follows our telephone conversation from March 14, 2024. The genesis of that call was a telephone message you left for me on March 13th generally asking me to give you a call.

On the March 14th call, you stated that you intend to file an Anti-SLAPP Motion in response to Cyberlux Corporation, Inc. and Mark D. Schmidt's Amended Counterclaim and that you were calling to meet and confer on the Motion. Having not been provided advance notice of the purpose of the call or the meet and confer, I advised you that I would need to bring my co-counsel into the conversation and that we would need to set up a time for a full meet and confer. Your response was that "this is the meet and confer call" and that you would be filing your anti-SLAPP Motion on March 21, 2024, unless we convinced you otherwise before then.

Section III(A) of Judge Montenegro's Chambers Rules require a conference of counsel prior to filing of noticed motions. Specifically, it states, "Any party contemplating the filing of any noticed motion before this Court must first contact opposing counsel to discuss thoroughly - preferably in person - the substance of the contemplated motion and any potential resolution. The conference must take place at least seven (7) days prior to the filing of the motion."

The telephone call on March 14th to announce your intent to file an Anti-SLAPP Motion was not a conference of counsel or a thorough discussion of the substance of the contemplated motion and any potential resolution. Further, my co-counsel was out of the country and unable to participate in such a call at that time or any sooner. To satisfy the Court's requirement that a thorough discussion occur, we are requesting that an actual conference of counsel occur on this Anti-SLAPP. We are available for such a discussion on the following dates: March 25 or March 26, beginning at 8:00 a.m. pacific time. If you would like to propose alternative dates, we are happy to work with you on that.

HAHN HL LOESER attorneys at law

Chambers RANKED IN USA

Gabe Wright

Gabe Wright | Partner Hahn Loeser & Parks LLP | MORE THAN A CENTURY OF CLIENT SERVICE

Original source file

No source file is attached yet. The record is ready for the PDF/media link when the attachment importer is connected.

File: aw-awh-sdcal-00196-doc-014-exhibit-2.pdf
Source UID: source:e679fd9b1bc73dd661afe0c12e7587ba20fae53582fcf7781653beeb577b75cf
Full SHA-256: e679fd9b1bc73dd661afe0c12e7587ba20fae53582fcf7781653beeb577b75cf

DISTIL analysis

Extracted text

Exhibit A - Atlantic Wave, et al. v. Cyberlux, et al.: Meet and Confer on Anti-SLAPP — Formatted Extract

Original source file