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

Filing 129

Declaration of Colleen M. Kennedy in Support of 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 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)(Related document(s) 128 ) (Kennedy, Colleen) (Filed on 9/29/2009)

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

Doc. 129

Case5:08-cv-04052-JF Document129

Filed09/29/09 Page1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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 DECLARATION OF COLLEEN M. KENNEDY IN SUPPORT OF EBAY INC.'S MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION, INTERROGATORIES AND REQUESTS FOR ADMISSION FROM DIGITAL POINT SOLUTIONS, INC. AND SHAWN HOGAN Hearing Date: November 3, 2009 Time: 10:00 a.m. Judge: Hon. Patricia V. Trumbull

KENNEDY DECL. ISO MOTION TO COMPEL CASE NO. C-08-4052 JF PVT

Dockets.Justia.com

Case5:08-cv-04052-JF Document129

Filed09/29/09 Page2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I, Colleen M. Kennedy, declare as follows: 1. I am a member of the Bar of the State of California and am associated with

the law firm of O'Melveny & Myers LLP, counsel for eBay Inc. in this matter. I submit this Declaration in support of eBay's Motion to Compel Responses to Requests for Production, Interrogatories and Requests for Admission from Digital Point Solutions, Inc. ("DPS, Inc.") and Shawn Hogan ("Defendants"). I have personal knowledge of the facts set forth in this declaration and, if called to testify as a witness, could and would do so under oath. 2. Counsel for eBay have engaged in meet and confer discussions with

Defendants' counsel regarding the issues raised in the accompanying Motion, both through correspondence and during telephonic discussions on August 27 and September 18, 2009. We were unable to reach agreement on the issues addressed in this Motion. 3. During our meet and confer discussions, Defendants' counsel has

represented that DPS, Inc. never conducted business with eBay, and 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 incorporation. 4. Section III.A of eBay's Motion seeks to compel responses to the following

discovery requests propounded by eBay: Requests for Production No. 1-29, 34-35 and 37 to Shawn Hogan. 5. Section III.B of eBay's Motion seeks to compel responses to the following

discovery requests propounded by eBay: Requests for Production No. 1-29, 34-35 and 37 to Shawn Hogan; and Requests for Production No. 1-29, 33-34 and 36 to DPS, Inc. 6. Section III.C of eBay's Motion seeks to compel responses to the following

requests propounded by eBay: Interrogatories No. 1-2 to DPS, Inc.; Requests for Admission No. 1-23 to DPS, Inc.; and Requests for Production No. 1-8, 13-14 and 23 to DPS, Inc.
-2KENNEDY DECL. ISO MOTION TO COMPEL CASE NO. C-08-4052 JF PVT

Case5:08-cv-04052-JF Document129

Filed09/29/09 Page3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

7.

The listed responses requested in Sections III.A and III.B include one of the

requests in eBay's Second Set of Requests for Production, as well as each of the requests in eBay's First Set of Requests for Production except for those that seek documents relating to Defendants' financial assets, financial statements and/or tax returns. eBay continues to meet and confer with Defendants regarding these requests and will file a separate motion to compel responses to those requests, if necessary. 8. Attached hereto as Exhibit 1 is a chart setting forth each of the requests to

which eBay seeks to compel responses, along with Defendants' objections and/or responses thereto, pursuant to Civil L.R. 37-2. 9. Attached hereto as Exhibit 2 is a true and correct copy of DPS, Inc.'s

Supplemental Responses to eBay's First Set of Interrogatories, dated September 23, 2009. 10. Attached hereto as Exhibit 3 is a true and correct copy of DPS, Inc.'s

Supplemental Responses to eBay's First Set of Requests for Admission, dated September 23, 2009. 11. Attached hereto as Exhibit 4 is a true and correct copy of DPS, Inc.'s

Supplemental Responses to eBay's First Set of Requests for Production and accompanying document production, dated September 23, 2009. 12. Attached hereto as Exhibit 5 is a true and correct copy of Shawn Hogan's

Responses to eBay's First Set of Requests for Production, dated March 12, 2009. 13. Attached hereto as Exhibit 6 is a true and correct copy of the Joint Case

Management Statement, dated September 14, 2009. 14. Attached hereto as Exhibit 7 is a true and correct copy of an email from

Ross Campbell to Colleen Kennedy, dated September 10, 2009. 15. Attached hereto as Exhibit 8 is a true and correct copy of DPS, Inc.'s

Motion to Dismiss eBay's First Amended Complaint, dated October 27, 2008. 16. Attached hereto as Exhibit 9 is a true and correct copy of DPS, Inc.'s

Motion to Dismiss eBay's Second Amended Complaint, dated April 27, 2009. 17. Attached hereto as Exhibit 10 is a true and correct copy of an email from
-3KENNEDY DECL. ISO MOTION TO COMPEL CASE NO. C-08-4052 JF PVT

Case5:08-cv-04052-JF Document129

Filed09/29/09 Page4 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Ross Campbell to Colleen Kennedy dated, September 25, 2009. 18. Attached hereto as Exhibit 11 is a true and correct copy of eBay's Notice of

Subpoena and Amended Subpoena to NetHere, dated June 9, 2009. 19. Attached hereto as Exhibit 12 is a true and correct copy of a letter from

Andy Taubman to David Sepanik, dated June 19, 2009. 20. Attached hereto as Exhibit 13 is a true and correct copy of a letter from

Andy Taubman to Colleen Kennedy, dated August 17, 2009. 21. Attached hereto as Exhibit 14 is a true and correct copy of eBay's First Set

of Requests for Admission to DPS, Inc., dated January 22, 2009. 22. Attached hereto as Exhibit 15 is a true and correct copy of DPS, Inc.'s initial

Responses to eBay's First Set of Interrogatories, dated March 12, 2009. 23. Attached hereto as Exhibit 16 is a true and correct copy of DPS, Inc.'s initial

Responses to eBay's First Set of Requests for Admission, dated March 12, 2009. 24. Attached hereto as Exhibit 17 is a true and correct copy of DPS, Inc.'s initial

Responses to eBay's First Set of Requests for Production, dated March 12, 2009. 25. Attached hereto as Exhibit 18 is a true and correct copy of an email from

Colleen Kennedy to Seyamack Kouretchian and Ross Campbell, dated September 18, 2009.

I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Signed on this 29th day of September, 2009 in San Francisco, California. ____/s/ Colleen M. Kennedy______ Colleen M. Kennedy

-4-

KENNEDY DECL. ISO MOTION TO COMPEL CASE NO. C-08-4052 JF PVT