eBay Inc. v. Digital Point Solutions, Inc. et al

Filing 91

Declaration of Colleen M. Kennedy in Support of 90 Memorandum in Opposition,, DECLARATION OF COLLEEN M. KENNEDY IN SUPPORT OF EBAY INC.S CONSOLIDATED OPPOSITION TO (1) THE MOTIONS TO DISMISS THE SECOND AMENDED COMPLAINT BY DEFENDANTS DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, THUNDERWOOD HOLDINGS, INC., KESSLERS FLYING CIRCUS, BRIAN DUNNING, BRIANDUNNING.COM, TODD DUNNING, AND DUNNING ENTERPRISE, INC. ; AND (2) THE MOTIONS TO TRANSFER BY DEFENDANTS DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, TODD DUNNING AND DUNNING ENTERPRISE, INC. filed byeBay Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34)(Related document(s) 90 ) (Eberhart, David) (Filed on 6/5/2009)

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eBay Inc. v. Digital Point Solutions, Inc. et al Doc. 91 Att. 5 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page1 of 21 EXHIBIT 6 Dockets.Justia.com Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page2 of 21 Stewart H. Foreman (CSB #6 1149) Daniel T. Bemhard (CSB #104229) FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Francisco, California 94 105 Telephone: (415) 54 1-0200 Facsimile: (41 5) 495-4332 Email: foreman@freelandlaw.com bernhard@freelandlaw.com Attorneys for Defendants Todd Dunning and Dunning Enterprise, Inc UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION EBAY, INC., Plaintiff, CASE NO.: CV-08-4052 JF DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, KESSLER'S FLYING CIRCUS, THUNDERWOOD HOLDINGS, INC., TODD DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, BRIANDUNNING.COM, AND DOES 1-20, Defendants. PROPOUNDING PARTY: RESPONDING PARTY: SET NUMBER: I PLAINTIFF EBAY INC. DEFENDANT DUNNING ENTERPRISE, INC. ONE Defendant Dunning Enterprise, Inc. ("DEI") hereby submits the following objections and responses to the Request for Production of Documents Set One propounded by Plaintiff Ebay, Inc. ("Plaintiff"). DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF 1 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page3 of 21 GENERAL STATEMENT Todd Dunning has invoked his privilege against self-incrimination pursuant to the Fifth Amendment to the U.S. Constitution, LeJkowitz v. Turley, 414 U.S. 70, 77 (1973), Federal Rules of Evidence Rule 501, Article 1, Section 15 of the California Constitution, and California Evidence Code section 940. Since Mr. Dunning is the sole shareholder and sole representative of DEI, and Mr. Dunning declines to sign these discovery responses on behalf of DEI, counsel for DEI is signing these responses pursuant to Federal Rules of Civil Procedure Rule 26(g). These responses to requests for documents directed at DEI are not a waiver of Mr. Dunning's privilege. Furthermore, the Federal Bureau of Investigation has seized all documents and computers, disk drives, hard drives, cell phones and servers containing information potentially related to this matter. Assistant United States Attorney Kyle F. Waldinger in charge of this investigation has refused all requests to provide defendants with a copy of the material seized by the FBI. Those items and records may contain information responsive to the requests below, but those items and records are not in the possession, custody or control of defendants. REQUEST FOR PRODUCTION NO. 1: All documents relating to eBay, including all agreements, terms of service and terms and conditions. RESPONSE TO REQUEST FOR PRODUCTION NO. 1: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege andlor the work product doctrine. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI produced a limited number of documents at the time of making its Initial Disclosures. DEI has documents that may be responsive to this request that were produced to it by Commission Junction, Inc. under a Confidentiality Order in the case of Commission Junction, Inc. v. Thunderwood Holdings, Inc., et al., Superior Court, Orange County, Case No. 30-2008 00101025. Accordingly, DEI is prohibited from DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF 2 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page4 of 21 producing these documents at this time. DEI has no other documents in its possession, custody or control that are responsive to this request. REQUEST FOR PRODUCTION NO. 2: All documents relating to, or Communications with, eBay or any current or former employee of eBay. RESPONSE TO REQUEST FOR PRODUCTION NO. 2: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege and/or the work product doctrine. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI produced a limited number of documents at the time of making its Initial Disclosures. DEI has documents that may be responsive to this request that were produced to it by Commission Junction, Inc. under a Confidentiality Order in the case of Commission Junction, Inc. v. Thunderwood Holdings, Inc., et al., Superior Court, Orange County, Case No. 30-2008 00 101025. Accordingly, DEI is prohibited from producing these documents at this time. DEI has no other documents in its possession, custody or control that are responsive to this request. REQUEST FOR PRODUCTION NO. 3: All documents relating to payment of commissions or other revenue obtained by Dunning Enterprise through participation in, interaction with or manipulation of eBay's Affiliate Marketing Program. RESPONSE TO REQUEST FOR PRODUCTION NO. 3: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects on the grounds that that the term "manipulation" is vague, argumentative and conclusory. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege and/or the work product doctrine. DEI further objects to this request on the ground that it violates DEl's right to privacy, and seeks production of trade secrets or other confidential information. DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF 3 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page5 of 21 DEI further objects on the ground that this information is equally available to Plaintiff. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI produced a limited number of documents at the time of making its Initial Disclosures. DEI has documents that may be responsive to this request that were produced to it by Commission Junction, Inc. under a Confidentiality Order in the case of Commission Junction, Inc. v. Thundenvood Holdings, Inc., et al., Superior Court, Orange County, Case No. 302008 00101025. Accordingly, DEI is prohibited from producing these documents at this time. DEI has no other documents in its possession, custody or control that are responsive to this request. REQUEST FOR PRODUCTION NO. 4: All documents relating to eBay's Affiliate Marketing Program, including, but no limited to, all methods and technologies used by Dunning Enterprise to obtain revenue from, manipulate or otherwise interact with, eBayts Affiliate Marketing Program, including, but not limited to, all software, source code, Javascript, and HTML, code. RESPONSE TO REQUEST FOR PRODUCTION NO. 4: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects on the grounds that that the term "manipulate" is vague, argumentative and conclusory. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege and/or the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI produced a limited number of documents at the time of making its Initial Disclosures. DEI has documents that may be responsive to this request that were produced to it by Commission Junction, Inc. under a Confidentiality Order in the case of Commission Junction, Inc. v. Thundenvood Holdings, Inc., et al., Superior Court, Orange County, Case No. 30-2008 00101025. Accordingly, DEI is prohibited from producing these documents at this time. DEI has no other documents in its possession, custody or control that are responsive to this request. /// DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 4 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page6 of 21 REQUEST FOR PRODUCTION NO. 5: All documents relating to advertisements for eBay used, or purported to be used, on any website or ad network that directed or referred Users to eBay as part of eBay's Affiliate Marketing Program. RESPONSE TO REQUEST FOR PRODUCTION NO. 5: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege andlor the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI produced a limited number of documents at the time of making its Initial Disclosures. DEI has documents that may be responsive to this request that were produced to it by Commission Junction, Inc. under a Confidentiality Order in the case of Commission Junction, Inc. v. Thundenvood Holdings, Inc., et al., Superior Court, Orange County, Case No. 30-2008 00101025. Accordingly, DEI is prohibited from producing these documents at this time. DEI has no other documents in its possession, custody or control that are responsive to this request. REQUEST FOR PRODUCTION NO. 6: All documents reflecting the number of Users who allegedly clicked on an advertisement for eBay used, or purported to be used, by Dunning Enterprise to direct or refer Users to eBay as part of eBay's Affiliate Marketing Program. RESPONSE TO REQUEST FOR PRODUCTION NO. 6: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege andlor the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 5 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page7 of 21 follows: DEI produced a limited number of documents at the time of making its Initial Disclosures. DEI has documents that may be responsive to this request that were produced to it by Commission Junction, Inc. under a Confidentiality Order in the case of Commission Junction, Inc. v. Thunderwood Holdings, Inc., et al., Superior Court, Orange County, Case No. 30-2008 00101025. Accordingly, DEI is prohibited from producing these documents at this time. DEI has no other documents in its possession, custody or control that are responsive to this request. REQUEST FOR PRODUCTION NO. 7: All documents relating to methods or techniques intended to, or causing, a User's browser to load any eBay webpage, webpage content or data therefiom. RESPONSE TO REQUEST FOR PRODUCTION NO. 7: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege and/or the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI produced a limited number of documents at the time of making its Initial Disclosures. DEI has documents that may be responsive to this request that were produced to it by Commission Junction, Inc. under a Confidentiality Order in the case of Commission Junction, Inc. v. Thunderwood Holdings, Inc., et al., Superior Court, Orange County, Case No. 30-2008 00101025. Accordingly, DEI is prohibited fiom producing these documents at this time. DEI has no other documents in its possession, custody or control that are responsive to this request. REQUEST FOR PRODUCTION NO. 8: All documents sufficient to identify all advertising networks, advertising syndication services or websites used or purportedly used by Dunning Enterprise to advertise or promote eBay or to interact in any way with eBay or eBay's Affiliate Marketing Programs. /I/ I// DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 6 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page8 of 21 RESPONSE TO REQUEST FOR PRODUCTION NO. 8: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege andor the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI produced a limited number of documents at the time of making its Initial Disclosures. DEI has documents that may be responsive to this request that were produced to it by Commission Junction, Inc. under a Confidentiality Order in the case of Commission Junction, Inc. v. Thunderwood Holdings, Inc., et al., Superior Court, Orange County, Case No. 30-2008 00 101025. Accordingly, DEI is prohibited from producing these documents at this time. DEI has no other documents in its possession, custody or control that are responsive to this request. REQUEST FOR PRODUCTION NO. 9: All documents sufficient to identify all Affiliate Marketing Programs, not including eBayfs Affiliate Marketing Program, with whom Dunning Enterprise obtained revenue or otherwise interacted. EESPONSE TO REQUEST FOR PRODUCTION NO. 9: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects that to the extent this request seeks documents related to programs other than eBayfs Affiliate Marketing Program, the request is neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege andor the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have any responsive documents in its possession, custody or control. DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 7 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page9 of 21 REQUEST FOR PRODUCTION NO. 10: All documents relating to and/or describing methods and techniques used by any other Affiliate Marketing Program that Dunning Enterprise interacted with, participated in or manipulated. RESPONSE TO REQUEST FOR PRODUCTION NO. 10: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects on the grounds that that the term "manipulated" is vague, argumentative and conclusory. DEI further objects that to the extent this request seeks documents related to programs other than eBay's Affiliate Marketing Program, the request is neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege and/or the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have any responsive documents in its possession, custody or control. REQUEST FOR PRODUCTION NO. I 1: All documents sufficient to identify the source of any technology, technique or methods used by Dunning Enterprise to participate in, manipulate or interact with the eBay Affiliate Marketing Program, or any other Affiliate Marketing Program. RESPONSE TO REQUEST FOR PRODUCTION NO. 11: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects on the grounds that that the term "manipulate" is vague, argumentative and conclusory. DEI further objects that to the extent this request seeks documents related to programs other than eBay's Affiliate Marketing Program, the request is neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege andlor the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 8 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page10 of 21 secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have any responsive documents in its possession, custody or control. REOUEST FOR PRODUCTION NO. 12: All documents sufficient to identify any individuals, groups, books, manuals or other materials consulted by Dunning Enterprise while developing any technology, technique or method used by Dunning Enterprise to participate in, manipulate or interact with the eBay Affiliate Marketing Program, or any other Affiliate Marketing Program. RESPONSE TO REQUEST FOR PRODUCTION NO. 12: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects on the grounds that that the term "manipulate" is vague, argumentative and conclusory. DEI further objects that to the extent this request seeks documents related to programs other than eBay's Affiliate Marketing Program, the request is neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege and/or the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have any responsive documents in its possession, custody or control. E Q U E S T FOR PRODUCTION NO. 13: All documents relating to Commission Junction, including all agreements, terms of service and terns and conditions. RESPONSE TO REOUEST FOR PRODUCTION NO. 13: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege and/or the work product doctrine. DEI further objects to this request on the ground that it seeks production of DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 9 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page11 of 21 trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have any responsive documents in its possession, custody or control. REQUEST FOR PRODUCTION NO. 14: All documents relating to, or Communications with, Commission Junction or any current or former employee of Commission Junction. RESPONSE TO REQUEST FOR PRODUCTION NO. 14: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege and/or the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have any responsive documents in its possession, custody or control. REQUEST FOR PRODUCTION NO. 15: All documents relating to, or Communications with, Digital Point Solutions, Inc., Kessler's Flying Circus, Thunderwood Holdings, Inc., or briandunning.com. RESPONSE TO REQUEST FOR PRODUCTION NO. 15: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege andlor the work product doctrine. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of t h s request, DEI responds as follows: DEI does not have any responsive documents in its possession, custody or control. /I/ /I/ /I/ DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 10 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page12 of 21 REQUEST FOR PRODUCTION NO. 16: All Communications with Brian Dunning, Todd Dunning or Shawn Hogan. RESPONSE TO REQUEST FOR PRODUCTION NO. 16: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege and/or the work product doctrine. DEI further objects to this request on the ground that it violates privacy rights of third parties. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have any responsive documents in its possession, custody or control. REQUEST FOR PRODUCTION NO. 17: All documents relating to, or Communications with, Rachael Hughes, or any companies or entities owned, controlled, affiliated with or used by Rachael Hughes, relating to eBay's Affiliate Marketing Program including, but not limited to, any agreements with Rachael Hughes and company and any technology transferred to or from Rachael Hughes and company. RESPONSE TO REQUEST FOR PRODUCTION NO. 17: DEI objects to this request on the grounds that Rachel Hughes is unknown to DEI, therefore no response is possible and all objections are reserved until eBay properly identifies this person or entity. REQUEST FOR PRODUCTION NO. 18: All documents sufficient to describe all phone numbers, email addresses, web pages, instant messenger or mail accounts and social network accounts maintained, formerly maintained or registered to Dunning Enterprise. RESPONSE TO REQUEST FOR PRODUCTION NO. 18: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. DEI fixther objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 11 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page13 of 21 a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have possession, custody, or control of any responsive documents. REQUEST FOR PRODUCTION NO. 19: Documents sufficient to identify any Aliases used by Dunning Enterprise in any Internet Forum at or within which Dunning Enterprise discussed any aspect of their participation in, manipulation of or interaction with eBayls Affiliate Marketing Program, or any other Affiliate Marketing Programs, including, but not limited to, forums such as blogs, listservs, Usenet newsgroups or chat rooms. RESPONSE TO REOUEST FOR PRODUCTION NO. 19: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects on the grounds that that the term "manipulation" is vague, argumentative and conclusory. DEI further objects that to the extent this request seeks documents related to programs other than eBayls Affiliate Marketing Program, the request is neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have possession, custody, or control of any responsive documents. REOUEST FOR PRODUCTION NO. 20: Documents sufficient to identify any Internet Forum at or within which Dunning Enterprise discussed any aspect of their participation in, manipulation of or interaction with eBayls Affiliate Marketing Programs, or any other Affiliate Marketing Programs, including, but not limited to, forums such as blogs, listservs, Usenet newsgroups or chat rooms. RESPONSE TO REQUEST FOR PRODUCTION NO. 20: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects on the grounds that that the term "manipulation" is vague, argumentative and conclusory. DEI further objects that to the extent this request seeks documents related to programs other than eBayls Affiliate Marketing Program, the request is neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 12 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page14 of 21 admissible evidence. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have possession, custody, or control of any responsive documents. REQUEST FOR PRODUCTION NO. 2 1: Documents sufficient to identify all internet service providers (ISPs) and IP addresses used by Dunning Enterprise. RESPONSE TO REQUEST FOR PRODUCTION NO. 21 : DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections and based on a reasonable DEI does not have interpretation as to the meaning of this request, DEI responds as follows: possession, custody, or control of any responsive documents. REQUEST FOR PRODUCTION NO. 22: Documents sufficient to identify all computers, servers, electronic data storage and hosting companies, entities, or facilities used by Dunning Enterprise. RESPONSE TO REQUEST FOR PRODUCTION NO. 22: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: To the extent that DEI was a partner in Kessler's Flying Circus, which had computers and stored data, this material is currently in the possession of the FBI and not available to DEI. DEI does not have possession, custody, or control of any responsive documents. REQUEST FOR PRODUCTION NO. 23: Documents sufficient to identify any entity used or hired to maintain or restore electronic data or systems relating to Dunning Enterprise's participation in, manipulation of or interaction with eBay's DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 13 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page15 of 21 Affiliate Marketing Program. RESPONSE TO REQUEST FOR PRODUCTION NO. 23: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects on the grounds that that the term "manipulation" is vague, argumentative and conclusory. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have possession, custody, or control of any responsive documents. REQUEST FOR PRODUCTION NO. 24: Documents sufficient to identify software used to clean, reformat or erase hard-drives used by Dunning Enterprise, or any equipment owned, used or maintained by Dunning Enterprise. RESPONSE TO REQUEST FOR PRODUCTION NO. 24: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the ground that it seeks production of trade secrets or other confidential information. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have possession, custody, or control of any responsive documents. REQUEST FOR PRODUCTION NO. 25: All documents sufficient to identifl all business entities or fictitious business names currently or formerly maintained by Dunning Enterprise. RESPONSE TO REQUEST FOR PRODUCTION NO. 25: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have possession, custody, or control of any responsive documents. /// DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 14 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page16 of 21 REQUEST FOR PRODUCTION NO. 26: All documents relating to the incorporation of Dunning Enterprise. RESPONSE TO REQUEST FOR PRODUCTION NO. 26: DEI objects on the ground that this request is overbroad, unduly burdensome and oppressive. DEI further objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: Other than the documents DEI produced as part of its Initial Disclosures, DEI has no other documents in its possession, custody or control that are responsive to this request. REQUEST FOR PRODUCTION NO. 27: All documents filed by Dunning Enterprise with any Secretary of State. RESPONSE TO REQUEST FOR PRODUCTION NO. 27: DEI objects on the ground that this request is overbroad, unduly burdensome and oppressive. DEI further objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: Other than the documents DEI produced as part of its Initial Disclosures, DEI has no other documents in its possession, custody or control that are responsive to this request. REQUEST FOR PRODUCTION NO. 28: Documents sufficient to show the structure and organization of Dunning Enterprise and all companies or other entities owned or controlled by Dunning Enterprise that were involved in or interacted with any Affiliate Marketing Program. RESPONSE TO REQUEST FOR PRODUCTION NO. 28: DEI objects on the ground that this request is overbroad, unduly burdensome and oppressive. DEI further objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. Subject to DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF f00123681-1) 15 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page17 of 21 and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: Other than the documents DEI produced as part of its Initial Disclosures, DEI has no other documents in its possession, custody or control that are responsive to this request. REQUEST FOR PRODUCTION NO. 29: Documents sufficient to identify all employees, contractors or temporary employees of Dunning Enterprise, their dates of employment, duties, salary and any other compensation. RESPONSE TO REOUEST FOR PRODUCTION NO. 29: DEI objects on the ground that this request is overbroad, unduly burdensome and oppressive. DEI further objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. DEI further objects to this request on the ground that it violates privacy rights of third parties, seeks production of trade secrets or other confidential information. REQUEST FOR PRODUCTION NO. 30: All documents constituting Dunning Enterprise's annual, quarterly and monthly audited, compiled, reviewed or unaudited financial statements, including all income statements and balance sheets of Dunning Enterprise. RESPONSE TO REQUEST FOR PRODUCTION NO. 30: DEI objects on the ground that this request is overbroad, unduly burdensome and oppressive. DEI further objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. DEI further objects to this request on the ground that it seeks production of trade secrets and confidential financial information, and invades DEI's rights of privacy REQUEST FOR PRODUCTION NO. 3 1: All documents sufficient to identify all assets and financial accounts (including those outside of the United States) maintained or formerly maintained by Dunning Enterprise. /I/ /I/ DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 16 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page18 of 21 RESPONSE TO REOUEST FOR PRODUCTION NO. 3 1: DEI further objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. DEI further objects to this request on the ground that it violates DEI's right to privacy, and seeks production of trade secrets and confidential financial information. REQUEST FOR PRODUCTION NO. 32: Documents constituting Dunning Enterprise's corporate tax returns for the years 2003 to the present. RESPONSE TO REQUEST FOR PRODUCTION NO. 32: DEI objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. DEI further objects to this request on the ground that it violates DEI's right to privacy, seeks privileged financial information, see e.g., California Revenue and Taxation Code section 19542. REOUEST FOR PRODUCTION NO. 33: All documents relating to the transfer or assumption of any liability by Dunning Enterprise. RESPONSE TO REQUEST FOR PRODUCTION NO. 33: DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI objects that this request seeks documents which are neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege andlor the work product doctrine. Subject to and without waiving the foregoing objections and based on a reasonable DEI does not have interpretation as to the meaning of this request, DEI responds as follows: possession, custody, or control of any responsive documents. REOUEST FOR PRODUCTION NO. 34: All documents relating to any insurance policies relevant to this action. RESPONSE TO REOUEST FOR PRODUCTION NO. 34: DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF (00123681-1) 17 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page19 of 21 DEI objects on the ground that this request is vague and ambiguous, overbroad, unduly burdensome and oppressive. DEI further objects to this request on the grounds that, as phrased, the request seeks documents the disclosure of which might violate the attorney-client privilege and/or the work product doctrine. Subject to and without waiving the foregoing objections and based on a reasonable interpretation as to the meaning of this request, DEI responds as follows: DEI does not have possession, custody, or control of any responsive documents. Dated: February ,2009 FREELAND COOPER & FOREMAN LLP By: Stewart H. Foreman Attorneys for Defendants Todd Dunning and Dunning Enterprise, Inc. DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION, CASE NO.: CV-08-4052 JF 18 Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page20 of 21 CERTIFICATE OF SERVICE I am employed in the City and County of San Francisco, State of California. I am over the age of eighteen and not a party to the within action; my business address is 150 Spear Street, Suite 1800, San Francisco, California 94105. I II 1 On February 26,2009, I served the foregoing document described as follows: Defendant Dunning Enterprise, Inc.'s Responses to Plaintiff's First Set of Requests for Production by placing a true and correct copy thereof enclosed in a sealed envelope addressed to the party(ies) of record whose name(s) and address(es) appear below: ' IIX I I SEE ATTACHED SERVICE LIST [BY MAIL - CCP 5 1013al I caused such sealed envelope with postage thereon fully prepaid to be placed in the United States mail at San Francisco, California, for collection and mailing to the office of addressee(s) on the date shown herein following ordinary business practice. ! i [HAND-DELIVERY/Personal/Messenger - CCP 5 10111 I caused such envelope to be hand-delivered by a courier, who personally delivered such envelope to the office of the addressee(s) on the date herein. [BY FACSIMILE - CCP 5 1013(e)] - I caused such document(s) to be transmitted via facsimile electronic equipment transmission on the party(ies), whose name(s), address(es) and fax number(s) are listed above, on the date stated herein and at the time set forth on the attached transmission reported indicating that the facsimile transmission was complete and without error. [BY FEDEX (Overnight Delivery) - CCP 5 1013(c)] I caused such envelope to be delivered to the Federal Express Office in San Francisco, California, with whom we have a direct billing account, to be delivered on the next business day. - [BY E-MAIL I 1 t I I 1 I or ELECTRONIC TRANSMISSION] . Based on a court order or agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the email addresses listed above. I did not receive within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. ' II- [STATE] I declare under penalty of perjury under the laws of the State of California that the above is true and correct. X [FEDERAL] Service was made under the direction of a member of the bar of this Court who is admitted to practice and is not a party to this cause. Executed on February 26,2009, at S CERTIFICATE OF SERVICE, CASE NO. 08-4052 (JF) (00120756-1) Case5:08-cv-04052-JF Document91-6 Filed06/05/09 Page21 of 21 ATTACHED SERVICE LIST Leo Presiado RUS, MILIBAND & SMITH Von Karrnan Towers 22 11 Michelson Drive, 7th Floor Irvine, CA 92612 Telephone: (949) 752-7 100 Facsimile: (949) 252-15 14 Attorneys for Defendants Brian Dunning and Thunderwood Holdings, Inc. David Eberhart O'MELVENY & MYERS LLP Embarcadero Center West 2 Embarcadero Center, 28th Floor San Francisco, CA 94 111 Attorneys for Plaintiff eBay, Inc. Telephone: 41 5-984-8700 Facsimile: 41 5-984-8701 Seyamack Kouretchian COAST LAW CROUP 169 Saxony Road, Suite 204 Encinitas, CA 92024 Attorneys for Defendants Shawn Hogan and Digital Point Solutions, Inc. Patrick K. McClellan Von Karrnan Towers 22 11 Michelson Drive, 7th Floor Irvine, CA 926 12 Attorney for Kessler's Flying Circus CERTIFICATE OF SERVICE, CASE NO. 08-4052 (JF) (00120756-1)