FILED: NEW YORK COUNTY CLERK 06/17/ :47 PM INDEX NO /2012 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 06/17/2016

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1 FILED: NEW YORK COUNTY CLERK 06/17/ :47 PM INDEX NO /2012 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 06/17/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK )( TANNENBAUM HELPERN SYRACUSE & HIRSCHTRITT LLP, -against- Plaintiff, DEHENG LAW OFFICES and DEHENG CHEN,LLC, Defendants )( Index No /2012 AFFIRMA TION OF DEAN T. CHO, ESQ. IN SUPPORT OF DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S COMPLAINT DEAN T. CHO, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms under penalties of perjury as follows: 1. I am counsel for Defendants DeHeng Law Offices ("DHLO") and DeHeng Chen, LLC ("DCLLC") (collectively, "Defendants") in this action. Except as otherwise noted, I have personal knowledge of the facts set forth herein. I respectfully submit this affirmation in support of Defendants' CPLR 3126 motion to strike the complaint of Plaintiff Tannenbaum Helpem Syracuse & Hirschtritt, LLP ("THSH") and for judgment in Defendants' favor, due to THSH's ongoing and willful discovery non-compliance, as well as for an award of Defendants' attorneys' fees and costs in making this motion. Prior to bringing this motion, Defendants made multiple, unsuccessful efforts to resolve Plaintiff's discovery non-compliance, in hopes of avoiding the need for court intervention. 2. This action arises out of a legal fees dispute. As confirmed by Paragraph 6 of its complaint (Ex. A hereto), THSH, anew York law firm, brought this action to recover its legal fees and disbursements allegedly incurred in connection with its representation of two non-party Chinese corporations, Fuzhou F&V Photographic Equipment Co., Ltd. ("F&V") and Shantou 1 1 of 5

2 Nanguang Photographic Equipment Co. Ltd. ("Nanguang") in a "patent infringement action conducted before the United States International Trade Commission entitled In the Matter of Certain LED Photographic Lighting Devices and Components Thereof, Investigation No TA-804 (the "ITC Proceedings"). 3. However, THSH does not seek to recover those legal fees and disbursements from F&V and N anguang - the entities that THSH represented - but instead seeks to recover those legal fees and disbursements from Defendants DHLO (a Chinese law firm) and DCLLC (a New York law firm), even though THSH never represented either of Defendant DHLO or DCLLC, in the ITC Proceedings or otherwise. Indeed, DCLLC had no involvement in any of the transactions at issue, did not sign any documents or agreements, and DCLLC's name simply never came up in connection with any of the underlying transactions. DHLO was co-counsel for F&V and N anguang, with THSH, in connection with the ITC Proceedings. 4. A central allegation ofthsh's complaint (Cho Aff. Ex. A) is THSH's fabricated assertion that F&V and Nanguang paid $750,000 in legal fees to Defendants and that Defendants misappropriated those monies. Key allegations contained in THSH's complaint include, inter alia, the allegation set forth in' 12 of Plaintiffs complaint that: Upon information and belief, [Plaintiff] THSH was informed that that F&V and Nanguang paid approximately $750,000 U.S. Dollars ( Chinese Yuan) to Defendants, and that such monies were to be used to pay the legal fees and disbursements incurred by [Plaintiff] THSH as a result of its representation off&v and Nanguang in the ITC Proceedings and to pay legal fees and disbursements that Defendants would incur in connection with this representation (the 'Legal Fees Fund'). THSH proceeded to allege that Defendants misappropriated those funds by failing to pay those monies to THSH. (Cho Aff. Ex. A, 18). 5. Defendants' answers (collectively annexed as Ex. B hereto) denied, inter alia, any wrongdoing, denied any responsibility for paying THSH's legal fees, and specifically denied 2 2 of 5

3 receiving the $750,000 alleged in,-r 12 ofthsh's complaint. 6. On or about October 31, over two and a half years ago -- DCLLC served document requests and interrogatories on THSH (Ex. C hereto). DCLLC's Interrogatories Nos. 15 and 16 therein state: 15. Identify all facts supporting any contention by THSH that DCLLC directly or indirectly received any monies or consideration from F&V, including, but not limited to, monies that THSH contends should have been paid to THSH. 16. Identify all facts supporting any contention by THSH that DCLLC directly or indirectly received any monies or consideration from Nanguang, including, but not limited to, monies that THSH contends should have been paid to THSH. 7. On or about October 31,2013, DHLO also served document requests and interrogatories on THSH (Ex. D hereto). Interrogatories Nos. 19,20,44, and 46 therein state: 19. Identify all communications and/or facts concerning any purported direct or indirect receipt of monies or consideration by DHLO from F&V, including, but not limited to, DHLO's purported receipt of any monies that THSH contends should have been paid to THSH. 20. Identify all communications and/or facts concerning any purported direct or indirect receipt of monies or consideration by DHLO from Nanguang, including, but not limited to, DHLO's purported receipt of any monies that THSH contends should have been paid to THSH. 44. Identify all communications and/or facts concerning the allegations set forth in Paragraph 12 of the Complaint. 46. Identify all communications and/or facts concerning the allegations set forth in Paragraph 18 of the Complaint. 8. On or about January 31,2014, THSH served its responses and objections to DCLLC's and DHLO' s discovery requests. (Exs. E and F hereto). As confirmed and detailed in correspondence from Defendants' counsel (Ex. G hereto), THSH's discovery responses were highly evasive and woefully deficient. 9. In multiple status/compliance conference orders - dated April 25, 2014, 3 3 of 5

4 September 3, 2014, December 17,2014, and June 18,2015, (collectively annexed as Ex. H to the Cho Aff.) - PlaintiffTHSH was ordered to serve supplemental discovery and interrogatory responses. On or about July 30,2015, THSH - now represented by new counsel-- did serve supplemental interrogatory responses to a limited number of Defendants' interrogatories, but those responses also were evasive and insufficient. Accordingly, in subsequent status/compliance conference orders dated December 16, 2015, and March 16,2016 (collectively annexed as Ex. I to the Cho Aff.), THSH was ordered to serve additional supplemental interrogatory responses. However, to date, THSH has failed to do so, in violation ofthe Court's status/compliance conference orders. 10. At the most recent March 16,2016 status conference, Defendants' counsel specifically raised the issue of Plaintiff THSH' s ongoing non-compliance with the Court's orders and its discovery obligations. Defendants' counsel, John Gallagher, Esq., did not dispute that non-compliance and, in fact, stipulated to the entry of an order of preclusion if THSH did not fully and timely cure such non-compliance by April 30, (as confirmed by the March 16, 2016 status conference order). However, when the matter was conferenced with the court attorney (Frank), the court attorney struck that stipulation, but warned Plaintiffs counsel that if THSH did not fully and timely cure its discovery non-compliance by serving its supplemental interrogatory responses by April 30, 2016, THSH's complaint would be stricken. 11. Nonetheless, THSH has failed to cure its non-compliance with the Court's discovery orders by April 30,2016, as THSH was ordered to. To date, more than two years after THSH was ordered to properly supplement its interrogatory responses, THSH still has not done so. 12. I respectfully submit that THSH's longstanding and ongoing failure to comply 4 4 of 5

5 with this Court's discovery orders confirms that THSH's discovery non-compliance is willful and in bad faith and therefore warrants the striking of THSH' s complaint, pursuant to CPLR 3126, and the awarding of judgment in Defendants' favor in this action, as well as an award of Defendants' attorneys' fees and costs in bringing this motion. WHEREFORE, I respectfully request that Defendants' motion be granted in its entirety. Dated: June 17,2016 a7~ Dean T. Cho 5 5 of 5