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

Filing 128

MOTION to Compel eBay's Notice of Motion and Motion to Compel Responses to Requests for Production, Interrogatories and Requests for Admission from Digital Point Solutions, Inc. and Shawn Hogan; Memorandum of Points and Authorities in Support Thereof filed by eBay Inc.. Motion Hearing set for 11/3/2009 10:00 AM. (Attachments: # 1 Proposed Order)(Kennedy, Colleen) (Filed on 9/29/2009)

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

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DAVID R. EBERHART (S.B. #195474) [e-mail] SHARON M. BUNZEL (S.B. #181609) [e-mail] COLLEEN M. KENNEDY (S.B. #227107) [e-mail] O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff eBay Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION EBAY INC., Plaintiff, v. 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. Case No. C 08-04052 JF PVT EBAY INC.'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION, INTERROGATORIES AND REQUESTS FOR ADMISSION FROM DIGITAL POINT SOLUTIONS, INC. AND SHAWN HOGAN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Hearing Date: November 3, 2009 Time: 10:00 a.m. Judge: Hon. Patricia V. Trumbull

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NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE THAT, on November 3, 2009, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 5 of the United States District Court for the Northern District of California, San Jose Division, located at 280 South 1st St., San Jose, California, 95113, eBay Inc. will and hereby does move for an order that: 1. Defendant Shawn Hogan, notwithstanding his continuing invocation of his Fifth Amendment right, produce all documents responsive to eBay's First and Second Set of Requests for Production that were previously obtained by the FBI, including but not limited to any such documents that may be within his control at third party NetHere, Inc.; 2. Defendant Digital Point Solutions, Inc. conduct a diligent search for and produce all documents responsive to eBay's First and Second Set of Requests for Production, including by exercising any and all rights that it may have to obtain documents from third party NetHere, Inc.; and 3. Defendant Digital Point Solutions, Inc.'s objections to eBay's Interrogatories and certain of eBay's Requests for Admission and Requests for Production on the grounds that the definition of "DPS" is overbroad, unduly burdensome and oppressive be stricken and Digital Point Solutions, Inc. provide supplemental responses to those requests that include information regarding "DPS" as defined by eBay. eBay's Motion is made pursuant to Federal Rule of Civil Procedure 37(a)(3)(B), and seeks an order compelling substantive responses to eBay's Requests for Production, Interrogatories and Requests for Admission as required by Federal Rules of Civil Procedure 34(b)(2), 33(b) and 36(a), respectively. See Declaration of Colleen M. Kennedy in Support of eBay Inc.'s Motion to Compel ("Kennedy Decl.").1
1

A comprehensive list of eBay's discovery requests addressed in this Motion and Defendants' responses to those requests is set forth in an exhibit to the attached Kennedy Declaration. See Kennedy Decl., Ex. 1. 1
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The motion is based on this notice, the attached memorandum of points and authorities, all supporting declarations, the pleadings and other records on file with the Court, the oral argument of counsel, all relevant matters judicially noticeable, and such further evidence and arguments as the Court may consider. DATED: September 29, 2009 DAVID R. EBERHART SHARON M. BUNZEL COLLEEN M. KENNEDY O'MELVENY & MYERS LLP By: /s/ David R. Eberhart DAVID R. EBERHART Attorneys for Plaintiff eBAY INC.

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TABLE OF CONTENTS Page INTRODUCTION.................................................................................................... 1 SUMMARY OF RELEVANT FACTS.................................................................... 2 ARGUMENT ........................................................................................................... 2 A. Mr. Hogan Must Produce The Materials He Previously Provided To The FBI.......................................................................................................... 2 B. DPS, Inc. Has Access To Responsive Documents That Must Be Produced........................................................................................................ 5 C. DPS, Inc. Cannot Limit Its Discovery Responses Based On Mr. Hogan's Fifth Amendment Privilege ............................................................ 8 1. Requests For Admission .................................................................. 10 2. Requests For Production .................................................................. 11 3. Interrogatories .................................................................................. 11 CONCLUSION ...................................................................................................... 12

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TABLE OF AUTHORITIES Page Fed. Sav. & Loan Ins. Corp. v. Rodrigues, 717 F. Supp. 1424 (N.D. Cal. 1998) .............................................................................. 3 Fisher v. United States, 425 U.S. 391 (1976)................................................................................................... 3, 4 Henry v. Sneiders, 490 F.2d 315 (9th Cir. 1974) ......................................................................................... 4 In re Grand Jury Proceedings, 759 F.2d 1418 (9th Cir. 1985) ....................................................................................... 3 In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87 (2d Cir. 1993)............................................................................................. 3, 4 Martin-Trigona v. Gouletas, 634 F.2d 354 (7th Cir. 1980) ......................................................................................... 5 Thomas v. Tyler, 841 F. Supp. 1119 (D. Kan. 1993)................................................................................. 4 United States v. Clark, 847 F.2d 1467 (10th Cir. 1988) ..................................................................................... 4 United States v. Edgerton, 734 F.2d 913 (2d Cir. 1984)........................................................................................... 5 United States v. Harrington, 923 F.2d 1371 (9th Cir. 1991) ....................................................................................... 4 United States v. Rue, 819 F.2d 1488 (8th Cir. 1987) ....................................................................................... 4

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION eBay seeks an order compelling Digital Point Solutions, Inc. ("DPS, Inc.") and its owner Shawn Hogan (collectively, "Defendants") to provide documents and proper written discovery responses. Defendants have improperly refused to produce documents to eBay in two different ways. First, Shawn Hogan has improperly refused to produce materials that were previously obtained from him by the government. Although an act of production may be incriminating under some circumstances, it is not incriminating under the facts presented here: the existence and location of the materials is known to the government, and the government can independently authenticate those materials. Consequently, Mr. Hogan's Fifth Amendment rights cannot preclude production. Second, DPS, Inc. has refused to produce responsive documents by claiming it has none or virtually none within its possession, custody or control. This cannot be true. DPS, Inc. was incorporated during the period of the wrongdoing and, during that same period, took ownership of valuable servers from Mr. Hogan that were likely used in the fraud. Further, third party NetHere--a company that has provided co-location services for servers owned by Defendants from 1996 to the present--possesses multiple servers that are within the control of one or more of the Defendants. In addition, DPS, Inc. has refused to provide the full extent of the discovery sought by eBay based on the contention that the broad definition of "DPS" in eBay's requests implicates Shawn Hogan's Fifth Amendment rights against self-incrimination. But DPS, Inc. has fundamentally confused the scope of the requests with the party responding to the requests. eBay is fully entitled to obtain information regarding, among others, Mr. Hogan from DPS, Inc., and DPS, Inc. may not hide behind Mr. Hogan's Fifth Amendment privilege to avoid responding to such discovery. Defendants have improperly withheld all meaningful discovery from eBay and the Court should compel compliance with eBay's discovery requests.

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II.

SUMMARY OF RELEVANT FACTS Defendants are an individual and a corporation that misused eBay's computer

systems and defrauded eBay through its affiliate marketing program. Defendants' "cookie stuffing" scheme was identical in all relevant respects to the scheme described in detail in eBay's motion to compel discovery responses from the remaining defendants (filed on September 22, 2009), and that description is incorporated herein by reference. eBay has diligently attempted to resolve its discovery disputes with Defendants without the need for court intervention, through both correspondence and two telephonic meet and confer discussions on August 27 and September 18, 2009. Kennedy Decl., ¶ 2. Through these efforts, eBay has obtained (i) an acknowledgment from DPS, Inc. that it does not possess a Fifth Amendment privilege to avoid responding to discovery and (ii) certain supplemental responses from DPS, Inc. to eBay's interrogatories, requests for admission and first set of requests for production. See Kennedy Decl., Exs. 2-4. But the supplemental responses not only fail to resolve significant defects in Defendants' discovery positions, those responses provide compelling evidence of the remaining defects. III. ARGUMENT A. Mr. Hogan Must Produce The Materials He Previously Provided To The FBI

Shawn Hogan cannot legitimately invoke the Fifth Amendment privilege to withhold from production to eBay any documents already in the hands of the government.2 It is undisputed that Mr. Hogan possesses responsive materials that were provided to the federal government in the course of its criminal investigation of Defendants' cookie stuffing schemes. See, e.g., Kennedy Decl., Ex. 5, at 2 ("The Federal Bureau of Investigation has seized documents and materials potentially related to the present action. As of the date of these responses, the FBI has not returned all of the seized
The 32 specific document requests to which eBay moves to compel responses in this section are set forth in the Kennedy Declaration, at ¶ 4. 2
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materials to Defendant, some of which may be responsive to Plaintiff's requests hereunder."). Although some responsive material may still be in the government's hands, Defendants concede that they currently possess the vast majority of the materials previously obtained by the government, with the possible exception of some physical documents. Kennedy Decl., Ex. 6, at 13 ("[I]t appears that all computer-related materials have been returned by the FBI. However, the scope of the seizure is not entirely clear and it appears that some physical documents are still in the possession of the FBI and/or the U.S. Attorney's Office."). The privilege against self-incrimination applies only to testimony; therefore, the contents of voluntarily prepared documents, whether business or personal, are not generally protected by the Fifth Amendment. In re Grand Jury Proceedings, 759 F.2d 1418, 1419 (9th Cir. 1985). Although in limited instances the act of producing voluntarily created documents may implicate the Fifth Amendment, id. at 1420, such circumstances are not present here. This "act of production" privilege only applies if the act of producing the documents is compelled, testimonial and incriminating. Fed. Sav. & Loan Ins. Corp. v. Rodrigues, 717 F. Supp. 1424, 1425 (N.D. Cal. 1998). The production of responsive documents to eBay would not be "testimonial and incriminating." To determine whether the act of production is testimonial and incriminating, federal courts generally consider two factors. First, they look to whether "the existence and location of the [requested] papers are unknown to the government." In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87, 93 (2d Cir. 1993). If "the existence and location of the papers are a foregone conclusion" based on information already known to the government, then the act of producing the documents does not implicate the privilege. Fisher v. United States, 425 U.S. 391, 411 (1976) (holding that the Fifth Amendment is not applicable to the production of documents where the production "adds little or nothing to the sum total of the Government's information"). Because Mr. Hogan concedes that the government already possesses the documents here at issue, the communicative aspects of the production regarding the "existence and
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location" of the documents cannot be further incriminating to him. See In re Grand Jury Subpoena Duces Tecum, 1 F.3d at 93 (where the government already has a copy of the requested document, the subsequent production of the original document "adds little or nothing to the sum total of the Government's information"); Henry v. Sneiders, 490 F.2d 315, 317 (9th Cir. 1974) ("[E]ven if the records were incriminating, their disclosure in the civil case would not have tended to incriminate the defendant. Any incriminating evidence was already in the hands of the prosecuting authorities."). Because a document production in this action would add little, if anything, to the government's quantum of knowledge, its testimonial value is therefore negligible. Fisher, 425 U.S. at 411; see also United States v. Clark, 847 F.2d 1467, 1472-73 (10th Cir. 1988) (declining to apply the act of production privilege where the government already has extensive knowledge and information regarding the requested documents). Second, the act of producing documents is not incriminating when the government "can independently authenticate the [documents] without using [the party's] act of producing the [documents] as evidence of their authenticity." United States v. Rue, 819 F.2d 1488, 1494 (8th Cir. 1987). If the government can do so, then authentication of the documents is a foregone conclusion that does not sufficiently implicate the right against self-incrimination. Id.; see also In re Grand Jury Subpoena Duces Tecum, 1 F.3d at 93 (where the government already possesses the document and can provide alternative means of authentication, no Fifth Amendment privilege applies to a subsequent production). Here, the government has an independent means of authentication: documents obtained from Mr. Hogan may be authenticated by testimony that the documents are in "substantially the same condition" as they were when originally obtained. See United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991). Therefore, the authentication of the documents sought by eBay is a "foregone conclusion," and the act of production is not incriminating. See Thomas v. Tyler, 841 F. Supp. 1119, 1131 (D. Kan. 1993) (ordering defendant to produce all documents that have already been delivered to a third party because the third party can be relied upon by the government to show their
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existence, possession and authenticity). Mr. Hogan has suggested that the allegedly involuntary nature of the "seizure" of his documents requires the application of the act of production doctrine. See Kennedy Decl., Ex. 7. But he has not identified any case holding that the applicability of the act of production doctrine turns on voluntariness of the prior production. Nor has Mr. Hogan provided proof that the seizure was, in fact, involuntary--a question that simply cannot be assumed. See United States v. Edgerton, 734 F.2d 913, 919 (2d Cir. 1984) (mere assertion of privilege against self-incrimination is not sufficient to establish the hazard of incrimination and thus warrant the exercise of a privilege). The law does not require that the Court take Mr. Hogan's word that the Fifth Amendment is applicable; the law requires him to prove that providing the discovery would tend to incriminate him. See MartinTrigona v. Gouletas, 634 F.2d 354, 360 (7th Cir. 1980) (a witness's "say-so does not of itself establish the hazard of incrimination," rather, the witness must "tender some credible reason why a response would pose a real danger of incrimination"). Mr. Hogan should therefore be compelled to produce all documents in his possession, custody or control that have previously been obtained by the FBI.3 B. DPS, Inc. Has Access To Responsive Documents That Must Be Produced

DPS, Inc. contends that its purportedly "late" incorporation--on May 14, 2007-- means that it "does not have any responsive documents or information within its possession, custody or control because it never conducted business with [eBay] and was never involved in [eBay]'s affiliate marketing program." Kennedy Decl., Ex. 7. DPS, Inc. further claims that any interaction with eBay was undertaken by Mr. Hogan and/or a sole proprietorship called "Digital Point Solutions" that existed prior to DPS, Inc.'s formation. Kennedy Decl. ¶ 3, Ex. 7. Because DPS, Inc.'s claim is untenable in at least
3

To the extent any documents previously obtained by the FBI are located on servers stored at third party NetHere, Inc.--which are discussed in detail below--Mr. Hogan should be ordered to exercise any control he may have over those documents and produce them as well. 5
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two ways, DPS Inc. should be ordered to produce the documents in its possession, custody, or control.4 First, the evidence strongly suggests that DPS, Inc. participated in the fraud against eBay's affiliate marketing program, even if only for a month. It is undisputed that DPS, Inc. existed from at least May 14, 2007 forward. See Kennedy Decl., Ex. 4, at DPS 000002-3. And eBay's Second Amended Complaint ("SAC") alleges that DPS, Inc.'s and Mr. Hogan's cookie stuffing scheme persisted through June 18, 2007. (See SAC ¶¶ 40, 48, 57.) Defendants concede this timeline (although they contest the substance of their behavior): in motion practice, Defendants claimed that DPS, Inc. existed "from mid-May to [at least] June 2007," Kennedy Decl., Ex. 8, at 2-3, and that their participation in eBay's affiliate marketing program "terminated in June of 2007." Kennedy Decl., Ex. 9, at 11. Defendants' statements in their motion to dismiss the SAC also impliedly concede both DPS, Inc.'s participation in the affiliate marketing program and DPS, Inc.'s ownership of the servers used in the fraud. Defendants stated, "Moreover, Defendants' membership in the affiliate marketing program terminated in June of 2007, when Plaintiff `verif[ied]' the existence of the purported scheme, ceased authorizing payouts for the alleged unearned commissions (SAC ¶¶ 34, 52-56), and the FBI seized Defendants' computers." Id. Documents produced last week by DPS, Inc., moreover, reveal that Mr. Hogan sold computer servers worth $108,000 to DPS, Inc. on May 19, 2007--only five days after its incorporation--in exchange for all of DPS, Inc.'s issued stock. Kennedy Decl., Ex. 4, at DPS 000030, 000036, 000040. It strains credulity that Mr. Hogan would have chosen to incorporate his "Digital Point Solutions" business using the same name, sold his valuable servers to that corporation, and thereafter completely insulated that corporation from any involvement in his (fraudulently) lucrative affiliate relationship with eBay.
4

The 64 specific document requests to which eBay moves to compel responses in this section are set forth in the Kennedy Declaration, at ¶ 5. DPS, Inc. has produced 41 pages of documents in connection with its supplemental responses to eBay's first set of requests for production. 6
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Second, it is clear that, whatever it possesses, DPS, Inc. has failed to conduct a diligent search for responsive documents during the eight months that eBay's document requests have been outstanding. DPS, Inc.'s document production on September 23, 2009 was the first time that eBay learned of DPS, Inc.'s ownership of the servers obtained from Mr. Hogan in 2007. But DPS, Inc. has certainly known of those servers since 2007; yet, when eBay inquired on September 24, 2009 whether those servers contained any responsive material, counsel for DPS, Inc. responded: "It is my understanding that the servers at issue have not been used, remain idle and do not contain any responsive information. However, I will confer with Mr. Hogan upon his return [from an out-oftown engagement] and will respond to your inquiry at that time." Kennedy Decl., Ex. 10. DPS, Inc. has long had a duty to search these servers, especially given that they were transferred from Mr. Hogan during the period of the fraud. It is, moreover, simply not credible that servers transferred at a valuation of $108,000 were never used. Aside from documents currently in DPS, Inc.'s direct possession, it appears that DPS, Inc. has access to and control over a substantial collection of records stored at third party NetHere--a company that provides co-location services for servers owned by Defendants. eBay subpoenaed NetHere in early June 2009. See Kennedy Decl., Ex. 11. NetHere has stated that, although it provides services to Defendants, it has no access to the documents sought by eBay and Defendants have exclusive access to and control over their servers and the data on those servers stored at NetHere. Kennedy Decl., Exs. 12-13. NetHere also indicated in its response to the subpoena that Defendants have been using NetHere's services since 1996, and are currently maintaining five different servers at NetHere's facility. Kennedy Decl., Ex. 12, at 2, 4. This raises a strong inference that the servers stored at NetHere would contain documents relating to Defendants' relationship with eBay during the period of the fraud: 2003-2007. As part of its subpoena response, NetHere also produced an invoice dated July 6, 2009, issued to "Digital Point Solutions, Shawn Hogan." Id. at 6. This invoice strongly suggests that both Mr. Hogan and DPS, Inc. have control of the materials stored at NetHere. But DPS, Inc. has never exercised
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that control despite its obligation to produce documents to eBay.5 DPS, Inc. surely has documents in its possession, custody, or control that are responsive to eBay's requests for production. DPS, Inc. should be compelled to produce all such documents, whether they exist on the servers sold to it by Mr. Hogan, at NetHere, or otherwise. C. DPS, Inc. Cannot Limit Its Discovery Responses Based On Mr. Hogan's Fifth Amendment Privilege

DPS, Inc. has also improperly refused to provide discovery to eBay on the purported grounds of a Fifth Amendment privilege of Shawn Hogan and/or any purported sole proprietorship that may have existed prior to DPS, Inc.'s formation.6 DPS, Inc. bases this argument on a claim that the broad definition of "DPS" used by eBay implicates the privilege of Mr. Hogan and those other entities because it "arguably seek[s] information from Mr. Hogan individually." Kennedy Decl., Ex. 7. But DPS, Inc.'s argument fundamentally confuses the identity of the responding party with the subject matter of the request. There is a compelling reason for eBay's broad definition of "DPS"--only Mr. Hogan and DPS, Inc. know the details of their business organizations. eBay understood that, during the relevant period, it was dealing with an entity called "Digital Point Solutions" that was owned and controlled by Shawn Hogan. See SAC ¶ 47. But, as discussed above, DPS, Inc. now contends that it was not involved in eBay's affiliate marketing program and that the "Digital Point Solutions" entity interacting with eBay
5

Nor has DPS, Inc. conducted a reasonable search for non-electronic materials. The Bylaws of DPS, Inc.--also belatedly produced last week--indicate that DPS, Inc. was required to: (i) hold annual meetings of the shareholders and board of directors and maintain minutes of all such meetings, and (ii) file an Annual Statement of General Information. Kennedy Decl., Ex. 4, at DPS 000007, 000015, 000020, 000024. When asked why DPS, Inc. had not produced all such documents, counsel replied: "The fact that statements may be referenced in the bylaws does not mean they were subsequently prepared or exist. . . . . However, I will confer with Mr. Hogan further on this issue." Kennedy Decl., Ex. 10. But DPS, Inc. was obliged to undertake that search long ago. The 23 requests for admission, 11 requests for production and 2 interrogatories to which eBay moves to compel responses in this section are set forth in the Kennedy Declaration, at ¶ 6. 8
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from 2003 to 2007 was a sole proprietorship controlled by Mr. Hogan. See, e.g., Kennedy Decl. ¶ 3, Ex. 7. Because Mr. Hogan and DPS, Inc. have the only direct knowledge of the true nature of their organization(s) that dealt with eBay, eBay's discovery requests to DPS, Inc. define the term "DPS" broadly: "DPS" shall mean Digital Point Solutions, Inc., and each of its successor, predecessor, and related entities, including, without limitation, its subsidiaries, parent corporations, divisions, assigns, and any officers, directors, agents, employees, representatives, attorneys, or other persons or entities acting on its behalf, collectively, in any combination, or singly, whichever is broader. See, e.g., Kennedy Decl., Ex. 14, at 2. As with any defined term, the use of this definition indicates that the party to whom the discovery requests are issued--here, DPS, Inc.--must provide all responsive information in its possession regarding the entities and individuals referenced in the definition. In other words, the definition of "DPS" describes the scope of the information that DPS, Inc. must provide; it does not somehow redirect the requests to Mr. Hogan or otherwise require him to incriminate himself. But DPS, Inc. has refused to provide responses based on a tortured reading of this definition that construes eBay's discovery requests as seeking information directly from Mr. Hogan. DPS, Inc.'s initial discovery responses asserted the Fifth Amendment privilege on that basis. See Kennedy Decl., Exs. 15-17. And DPS, Inc.'s counsel reiterated in meet and confer correspondence that "[T]he Fifth Amendment has been appropriately asserted because the definitions of `DPS' set forth in plaintiff's discovery requests are ambiguous and arguably seek information from Mr. Hogan individually." Kennedy Decl., Ex. 7. Following a lengthy meet-and-confer process, DPS, Inc. finally agreed to serve supplemental discovery responses that it claimed would provide the responsive information in its possession. eBay, moreover, explicitly agreed that it would not contend that DPS, Inc.'s service of proper responses somehow waived Mr. Hogan's Fifth Amendment rights. Kennedy Decl., Ex. 18. eBay received those supplemental responses last week, but they are still improperly limited. The supplemental responses continue to
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assert the general objection that eBay's definition of "DPS" is "overbroad, unduly burdensome and oppressive in that it purports to apply to third parties collectively and/or individually . . . and purports to seek responses from Mr. Hogan as phrased." Kennedy Decl., Exs. 2-4, at 2. And, more importantly, DPS, Inc. continues to improperly limit the scope of its responses by refusing to provide information regarding any entity other than DPS, Inc., as discussed below. 1. Requests For Admission

In response to eBay's requests for admission, which asked DPS, Inc. to admit or deny statements regarding "DPS's" participation in eBay's affiliate marketing program, DPS, Inc. responded to all but two of those requests by restricting its responses to information regarding only DPS, Inc. For example: "Defendant denies that DIGITAL POINT SOLUTIONS, INC. conducted business with Plaintiff at any time, and on that basis denies this request." "Defendant denies that DIGITAL POINT SOLUTIONS, INC. participated in any eBay affiliate marketing programs, and on that basis denies this request." "Defendant denies that DIGITAL POINT SOLUTIONS, INC. received any commissions from eBay at any time, and on that basis denies this request." Kennedy Decl., Ex. 3, at 3-10. But each of eBay's requests for admission required that DPS, Inc. provide admissions or denials with respect to the activities of any of the entities/individuals defined as "DPS." While the responses are improper on their face, DPS, Inc. has also demonstrated that it knows how to provide a proper response when it so chooses. In its responses to requests for admission Nos. 24 and 25--which requested that DPS, Inc. admit or deny that "DPS engaged in cookie stuffing with intent to defraud eBay" and that "DPS defrauded eBay"--DPS, Inc. stated simply that "Defendant denies this request." See id. at 11. These responses demonstrate that DPS, Inc. is capable of accepting eBay's definition of "DPS" without compromising Mr. Hogan's Fifth Amendment privilege when it pleases. But the rules do not give DPS, Inc. such discretion, and it must provide complete
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responses to all of eBay's requests for admission. 2. Requests For Production

DPS, Inc. has also improperly restricted its responses to many of eBay's requests for production. In response to requests for production No. 1-8, 13-14 and 23, DPS, Inc. asserted that it has no responsive documents to produce, but only after making the prefatory statement that "Defendant DIGITAL POINT SOLUTIONS, INC. never conducted business with Plaintiff at any time." See Kennedy Decl., Ex. 4, at 3-15. These responses stand in marked contrast to DPS, Inc.'s supplemental responses to eBay's other requests for production, in which DPS, Inc. either agrees to produce documents (Nos. 2628), or states affirmatively that "[a] diligent search has been made in an effort to locate the items requested (Nos. 9-12, 16-22, 24-25, 29).7 See id. at 7-18. This contrasting behavior strongly suggests that DPS, Inc.'s statement that "Defendant DIGITAL POINT SOLUTIONS, INC. never conducted business with" eBay means that DPS, Inc. is again limiting its responses to those requests to documents regarding "DIGITAL POINT SOLUTIONS, INC." rather than to documents regarding eBay's broader definition of "DPS." DPS, Inc. may not withhold otherwise responsive documents in its possession based on its contention that the production of any documents related to Mr. Hogan or his business as it existed prior to DPS, Inc.'s incorporation is protected by Mr. Hogan's Fifth Amendment privilege. And again, DPS, Inc. made its qualifying statement in only some of its responses to eBay's requests for production, demonstrating that it is able to provide proper responses to eBay's requests when it suits its interests, and further undercutting the basis for its improper refusal to accept eBay's defined term. 3. Interrogatories

DPS, Inc. used a virtually identical qualifying statement in its supplemental
DPS, Inc. did not provide responses to requests for production No. 30, 31 and 32, which seek documents relating to DPS, Inc.'s financial assets, financial statements and tax returns. eBay continues to meet and confer with DPS, Inc. regarding these requests and will file a separate motion to compel responses to those requests, if necessary. 11
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responses to eBay's two interrogatories. When asked in interrogatory No. 1 to "[i]dentify all persons or entities with knowledge regarding DPS's participation . . . in any Affiliate Marketing Program," DPS, Inc. responded: "Defendant DIGITAL POINT SOLUTIONS, INC. has never conducted any business of any kind with Plaintiff. Defendant otherwise identifies the following persons and entities: Shawn Hogan and Google, Inc." Similarly, DPS, Inc. responded to interrogatory No. 2's request that DPS, Inc. "[i]dentify all Internet Forums at, within or through which DPS discussed any aspect of their participation in . . . eBay's Affiliate Marketing Program, or any other Affiliate Marketing Program," by stating: "Defendant DIGITAL POINT SOLUTIONS, INC. has never conducted any business of any kind with Plaintiff. No such forums exist." Kennedy Decl., Ex. 2, at 3. Again, the use of the qualifying statement regarding DPS, Inc's interaction with eBay (putting aside its veracity) strongly suggests that DPS, Inc. has limited the content of its responses by refusing to accept eBay's definition of "DPS." If DPS, Inc. were not attempting to limit its responses, there would be no reason to state that "Defendant DIGITAL POINT SOLUTIONS, INC." never conducted business with eBay. In response to interrogatory No. 2, for example, DPS, Inc. could have simply stated "No such forums exist." DPS, Inc. may not refuse to provide information in its possession or control regarding Mr. Hogan's business. To the extent it has not already done so, DPS, Inc. must be compelled to provide all information in its possession or control regarding the subject of eBay's discovery responses, including eBay's definition of "DPS." IV. CONCLUSION For the foregoing reasons, eBay respectfully requests that the Court issue an order compelling discovery, as follows: 1. compelling Defendant Shawn Hogan, notwithstanding his continuing invocation of his Fifth Amendment right, to produce all documents responsive to eBay's First and Second Set of Requests for Production that were previously obtained by the FBI, including but not limited to any such
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documents that may be within his control at third party NetHere, Inc.; 2. ordering Defendant DPS, Inc. to conduct a diligent search for and produce all documents responsive to eBay's First and Second Set of Requests for Production, including by exercising any and all rights that it may have to obtain documents from third party NetHere, Inc.; and 3. striking Defendant DPS, Inc.'s objections to eBay's Interrogatories and certain of eBay's Requests for Admission and Requests for Production on the grounds that the definition of "DPS" is overbroad, unduly burdensome and oppressive and ordering DPS, Inc. to provide supplemental responses to those requests that include information regarding "DPS" as defined by eBay.

DATED: September 29, 2009

DAVID R. EBERHART SHARON M. BUNZEL COLLEEN M. KENNEDY O'MELVENY & MYERS LLP By: /s/ David R. Eberhart DAVID R. EBERHART Attorneys for Plaintiff eBAY INC.

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