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

Filing 124

Declaration of Colleen M. Kennedy in Support of 123 MOTION to Compel eBay Inc.'s Notice of Motion and Motion to Compel Responses to Requests for Production, Interrogatories and Requests for Admission; Memorandum of Points and Authorities in Support Thereof 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)(Related document(s) 123 ) (Kennedy, Colleen) (Filed on 9/22/2009)

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

Doc. 124 Att. 3

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EXHIBIT 4

Dockets.Justia.com

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Stewart H. Foreman (CSB #61149) Daniel T. Bernhard (CSB #104229) FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] 6 Attorneys for Defendants Todd Dunning and Dunning Enterprise, Inc. UNITED STATES DISTRICT COURT

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EBAY, INC., Plaintiff,

FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

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CASE NO.: CV-08-4052 JF DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIES

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: PLAINTIFF EBAY INC. DEFENDANT DUNNING ENTERPRISE, INC. ONE

DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIES, CASE NO.: CV-08-4052 JF

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Defendant Dunning Enterprise, Inc. ("Defendant") hereby submits the following objections and responses to the First Set of Interrogatories propounded by Plaintiff Ebay, Inc. ("Plaintiff').

GENERAL STATEMENT Todd Dunning has invoked his privilege against self-incrimination pursuant to the Fifih Amendment to the U.S. Constitution, LeJkowitz v. Turley, 414 U.S. 70, 77 (1973), Federal Rules of Evidence Rule 50 1, Article 1, Section 15 of the California Constitution, and California Evidence Code section 940. Since Mr. Dunning is the sole shareholder and sole authorized representative of

Defendant, and the only person who can verify discovery responses on behalf of Defendant, Defendant cannot provide any verified responses without compromising Mr. Dunning's right against self-incrimination. Should Mr. Dunning determine that there is no longer the threat of potential criminal prosecution and elect to withdraw his privilege against self-incrimination in the future, Defendant expressly reserves the right to supplement its responses. 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. INTERROGATORY NO. 1: Identify all persons or entities with knowledge regarding Dunning Enterprise's participation, manipulation or interaction in any Affiliate Marketing Program including eBay's Affiliate Marketing Programs including, but not limited to, all methods, techniques and technologies, software, source code, Javascript and HTML code, used by Dunning Enterprise to obtain revenue from, or otherwise interact with, participate in or manipulate any Affiliate Marketing Program.
DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIES, CASE NO.: CV-08-4052 JF
(00123674-1)

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RESPONSE TO INTERROGATORY NO. 1: Defendant objects to this interrogatory on the grounds that it violates Mr. Dunning's privilege against self-incrimination pursuant to the Fifth Amendment to the U.S. Constitution, Lefkowitz 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. Defendant further objects on the ground that this interrogatory is vague and ambiguous, overbroad, unduly burdensome and oppressive. Defendant further objects on the grounds that that the term "manipulation" and "manipulate" are vague, argumentative and conclusory. Defendant further objects that to the extent this interrogatory seeks information related to programs other than eBay's Affiliate Marketing Program, the interrogatory is neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to this interrogatory on the ground that it seeks production of trade secrets or other confidential information. INTERROGATORY NO. 2: Identify all Internet Forums at, within or through which Dunning Enterprise discussed any aspect of their participation, manipulation of or interaction with eBay's Affiliate Marketing Programs, or any other Affiliate Marketing Program. RESPONSE TO INTERROGATORY NO. 2: Defendant objects to this interrogatory on the grounds that it violates Mr. Dunning's privilege against self-incrimination pursuant Fifth Amendment to the U.S. Constitution, Lefkowitz 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. Defendant further objects on the ground that this interrogatory is vague and ambiguous, overbroad, unduly burdensome and oppressive. Defendant further objects that to the extent this interrogatory seeks documents related to programs other than eBay's Affiliate Marketing Program, the interrogatory is neither relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects on the grounds that that the term "manipulation" is vague, argumentative and conclusory.
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DEFENDANT DUNNING ENTERPRISE, INC.'S RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIES, CASE NO.: CV-08-4052 JF
(00123674-1)

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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. On February 26,2009, I served the foregoing document described as follows:

Defendant Dunning Enterprise, Inc.'s Responses to Plaintiff's First Set of Interrogatories
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:

SEE ATTACHED SERVICE LIST
X [BY MAIL - CCP 5 1013a] 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.

[HAND-DELIVERY/Personal/Messenger 5 101I] I caused such envelope to be - CCP 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 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. [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.
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Executed on February 26,2009, at San Fr

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CERTIFICATE OF SERVICE, CASE NO. 08-4052 (JF')
(00120756-1)

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ATTACHED SERVICE LIST Leo Presiado RUS, MILIBAND & SMITH Von Karman Towers 22 11 Michelson Drive, 7th Floor Irvine, CA 926 12 Telephone: [phone] 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 941 11 Attorneys for Plaintiff eBay, Inc. Telephone: [phone] Facsimile: 4 5-984-8701 1 Seyamack Kouretchian COAST LAW GROUP 169 Saxony Road, Suite 204 Encinitas, CA 92024 Attorneys for Defendants Shawn Hogan and Digital Point Solutions, Inc.

Patrick K. McClellan Von Karman Towers 221 1 Michelson Drive, 7th Floor Irvine, CA 926 12 Attorney for Kessler's Flying Circus

CERTIFICATE OF SERVICE, CASE NO. 08-4052 (JF)
(00120756-1)