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 Att. 10

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EXHIBIT 11

Dockets.Justia.com

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David R. Eberhart (S.B. #195474) - [e-mail] Sharon M. Bumel (S.B. #18 1609) - [e-mail] Colleen M. Kennedy (S.B. #227107) - [e-mail] O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94 111-3305

Attorneys for Plaintiff EBAY INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION EBAY INC., Plaintiff,

I

Case No. C 08-04052 JF PLAINTIFF EBAY INC.'S NOTICE TO DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, KESSLER'S FLYING CIRCUS, THUNDERWOOD HOLDINGS, INC., TODD DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, AND BR1ANDUNNING.COM OF SUBPOENA TO NETHERE, INC. PURSUANT TO FED. R. CIV. P. 45

DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, KESSLER'S FLYING CIRCUS, THUNDERWOOD HOLDINGS, INC., TODD DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, BRIANDWING.COM, and DOES 120, Defendants.

NOTICE OF SUBPOENA

NO. C 08-04052 JF

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TO EACH PARTY AND TO EACH ATTORNEY OF RECORD IN THIS ACTION: PLEASE TAKE NOTICE that pursuant to Rules 26,34(c), and 45 of the Federal Rules of Civil Procedure, the attached subpoena will be served upon the following third party, commanding the production of the papers and documents set forth in the Attachment A attached hereto.

Producing; Party

I DateITirne
June 24,2009 10:OO a.m.

I Location

NetHere, Inc.

I

O'MELVENY & MYERS, LLP 6 10 Newport Center Drive, 17th Floor Newport Beach, CA 92660 Telephone: [phone]

Said production will take place on June 24, 2009 at 10:OO a.m. at the abovelisted address, or such other location as is mutually acceptable to the above-listed third party and plaintiffs counsel. PLEASE TAKE FURTHER NOTICE that the above-listed third party inay be held in contempt of court pursuant to Federal Rule of Civil Procedure 45(e) if the party fails without adequate excuse to obey the subpoena served upon it, and that it has certain legal rights in response to plaintiffs' subpoena served upon it as provided in Federal Rule of Civil Procedure 45(d) and (e). These rights are reproduced in full on page two of the subpoena served upon the third-party. Dated: June 9, 2009 O'MELVENY & MYERS LLP

Bavid R. Eberhart O'Melveny & Myers LLP Attorneys for Plaintiff EBAY INC.

NOTICE OF SUBPOENA

NO. C 08-04052 JF

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PROOF OF SERVICE

11 California, at the office of a member of the bar of this Court at whose direction this 11 service was made. I am over the age of eighteen years and not a party to the within 11 action. I am a resident of or employed in the county where the service described below 1 occurred. My business address is Two Embarcadero Center, 28th Floor, San Francisco, 11 California 941 11. On June 9,2009,I transmitted from my business einail account,

I am a citizen of the United States and employed in San Francisco County,

1

[e-mail], an electronic service copy and a courtesy copy via United States Postal Service of the following:

11

PLAINTIFF EBAY INC.'S NOTICE TO DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, KESSLER'S FLYING CIRCUS, THUNDERWOOD HOLDINGS, INC., TODD DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, AND BRIANDUNNING.COM OF SUBPOENA TO NETHERE, INC. PURSUANT TO FED. R. CIV. P. 45
together with an electronic copy of this declaration, to the following, at the einail and postal addresses indicated below: COAST LAW GROUP LLP Seyamack Kouretchian 169 Saxony Road Suite 204 Encinitas, CA 92024 Einail: [e-mail] RUS, MILIBAND & SMITH, APC Leo J. Presiado 22 11 Michelson Dr. 7thFloor Irvine, CA 92612 Einail: [e-mail] LAW OFFICE OF PATRICK I . ( MCCLELLAN Patrick Kelly McClellan 22 11 Michelson Dr. #700 Irvine, CA 92612 Email: pkeIlymc@;pacbell.net FREELAND COOPER & FOREMAN LLP Stewart H. Foreman 150 Spear Street Suite 1800 San Francisco, CA 94105 Email: [e-mail]

NOTICE OF SUBPOENA

NO. C 08-04052 JF

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I declare under penalty of perjury under the laws of the United States that the
above is true and correct. Executed on June 9,2009, at San Francisco, California.

F\

Michael O'Donnell

NOTICE OF SUBPOENA

NO. C 08-04052 JF

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Issued by the
Southern District of California
eBay Inc.

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

AMENDED

SUBPOENA IN A CIVIL CASE

Case Number: Case No. CV-08-4052 JF
Northern District of California

TO: NetHere, Inc.
Andrew B. Taubman 41 34 Voltaire Street, San Diego, CA 92107

YOU ARE COMMANDED to appear in the United States District court at the place, date, and time specified below to testify in the above case.
PLACE OF TESTIMONY

1 COURTROOM

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
PLACE OF DEPOSITION DATE AND TIME

H YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the
place, date, and time specified below (list documents or objects):
See Attachment A

PLACE

DATE AND TIME

O'Melveny & Myers LLP, 610 Newport Center Drive, 17th Floor, Newport Beach, CA 92660

June 24, 2009, 10:00 a.m.

YOU ARE COMMANDED to pennit inspection of the following premises at the date and time specified below.
PREMISES DATE AND TIME

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rule of Civil Procedure 30(b)(6).

Attorney for Plaintiff, David J. Sepanik O'Melveny & Myers LLP, Two Embarcadero Center, 28th Floor, San Francisco, CA 941 11 (415-984-8700)
(See Federal Rule of CIVII Procedure 45 (c), (d), and (e), on next page)

I

If action is pending in district other than district of issuance, state district under case number
American LegalNet, Inc. ~w.FormsWor~ow.corn

/

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PROOF OF SERVICE
DATE PLACE

SERVED
SERVED ON (PRINT NAME) MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER I declare under penalty ofperjury under the laws ofthe United States ofAmerica that the foregoing information contained in the Proof of Service is true and correct. Executed on
DATE SIGNATURE OF SERVER

ADDRESS OF SERVER

Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1,2007:
(c) PROTECTINGA PERSOS sUB.1ECTTO A SUBPOENA. ( I ) Avoiding Undue Burden or Expense; Sanctions. A party or attorney respons~blefor Issuing and servlng a subpoena must take reasonable steps to a v o ~ d lmposlng undue burden or expense on a person subject to the subpoena. The Issuing court must enforce this duty and impose an appropriate sanction -which may include lost earnings and reasonable attorney's fees - on a party or attorney who falls to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Requ~red.A person commanded to produce documents, electronically stored information, or tang~ble things, orto permlt the inspection ofpremises, need not appear in person at the place of product~onor inspection unless also commanded to appear for a depos~t~on, heanng, or tnal. (B) Objections. A person commanded to produce documents or tangible things or to permit inspect~onmay serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises-or to producing electronically stored information in the form or fbrms requested. The objection innst be served before the earlier ofthe time specified for compliance or 14 days after the subpoena is served. If' an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling productior~ inspection. or (ii) These acts may be required only as directed in the order, and the order must protect a person who 1s neither a party nor a party's officer from significant expense resulting from compliance. (3) Quashing or Mod~fLing Subpoena. a (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) falls to allow a reasonable time to comply; ( ~ i requlres a person who is neither a party nor a party's officer to travel more ) than 100 miles from where that person resides, 1s employed, or regularly transacts business in person - except that, subject to Rule 45(~)(3)(B)(lii),the person may be commanded to attend a tnal by traveling from any such place within the state where the trial is held; (iii) requlres disclosure of privileged or other protected matter, if no exception or waiver apphes; or (IV)subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if'lt requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or (ill) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 lnlles to attend trial (C) Specifying Cond~tions an Alternative. In the circumstances described in Rule as 35(c)(3)(8), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or materlal that cannot be otherwise met without undue hardsh~p; and (ii) ensures that the subpoenaed person will be reasoilably compensated. (d) DUTIES IN RESPONDINGTO A SUBPOENA. (I) Producing Documents or Electro~~ically Stored lnfonnatlon. These procedures apply to producing documents or electron~callystored ~nformat~on: (A) Documents. A person responding to a subpoena to produce docun~ents must produce them as they are kept In the ordinary course of business or must organlzc and label them to correspond to the categories in the demand. (B) Form for Producing Electron~cally Stored lnfonnatlon Not Spec~fied. If a subpoena does not specify a form for producing electronically stored ~nformatlon, person the responding must produce it in a fonn or forms In which it is ordmarily ~namtalnedor In a reasonably usable form or fbrms. (C) Electronically Stored Infonnation Produced In Only One Form. The person responding need not produce the same electronically stored mfonnat~on more than one fonn. in (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronlcally stored information from sources that the person ~dentifics as not reasonably accessible because of undue burden or cost. On motion to compel disco.r,ery or fbr a protective order, the person responding must show that the informat~on not reasonably is accessible because of'undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considcrlng the limitations of'Rule 26(b)(2)(C). The court may specify conditions fbr the d~scovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed infhrmat~onunder a claim that it is privileged or subject to protection as tnal-preparation material must: (i) expressly make the claim; and ( ~ i describe the nature of the withheld documents. communlcatlons. or ) tangible things ill amanner that. without revealing lnfonnation itselfpriv~leged orprotected. will enable the parties to assess the claim. (B) Information Produced. If lnformat~onproduced In response to a subpoena is subject to a claim of privilege or of protection as tnal-preparation material, the person makmg the claim may notify any party that received the infonnation of the claim and the basis for 11. Afier being notified, a party must promptly return, sequester. or destroy the spec~fied mformation and any copies it has; must not use or disclose the mformation unt~lthe claim is resolved; must take reasonable steps to retrieve the ~nformation~fthe party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the infhmation ~nustpreserve the infonnation until the c l a ~ m resolved. is
(e) CONTEMPT.

The issuing court may hold in contempt a person who, having been served, fails w~thout adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outs~de I ~ r n ~of the ts Rule 45(c)(3)(A)(ii).

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ATTACHMENT A DEFINITIONS AND INSTRUCTIONS
The following definitions and instructions are to be considered applicable with respect to each request for production of documents contained herein: 1. "NetHere" or "You" shall mean NetHere, Inc. and any and all parent

organizations, divisions, subdivisions, departments, affiliates, parents, partners, holding companies, divisions, departments, operating units, their present and former directors, officers, employees, agents, attorneys, consultants, and representatives, and all Persons either acting or purporting to act on behalf of NetHere, Inc.

2.

"Document" is used in the broadest possible sense and shall mean, without

limitation, every writing or record of every type and description that is in your possession, custody, or control, whether an original or copy, in whatever form, and includes, but is not limited to, correspondence, files, drafts, term sheets, transcripts, minutes, memoranda, telegrams, telexes, stenographic and handwritten notes, studies, analyses, publications, books, pamphlets, pictures, photographs, films, video tapes, audio tapes, purchase orders, invoices, computer disks and printouts, drawings, diagrams, blueprints, affidavits, expense records, financial reports, journals, logs, diaries, calendars, voice recordings, tapes, maps, reports, surveys, charts, numbers or statistical computations, and every draft or copy thereof, whether signed or unsigned

3.

"Communication" shall mean conversations, correspondence, telephone

calls, meetings, or any transmission of information from one person to one or more persons. 4. "Relate to," "Related to" or "Relating to" shall mean, without limitation,

constituting, mentioning, referring to, describing, summarizing, evidencing, listing, relevant to, demonstrating, analyzing, tending to prove or disprove, or explaining.

5.

"User" shall mean anyone who uses a computer or internet service.

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6.

"eBay" shall mean plaintiff eBay Inc., www.ebav.com, all of eBay's

internationally operated websites, and any and all divisions, subdivisions, departments or subsidiaries of eBay.

7.

"Comission Junction" shall mean any and all parent organizations,

divisions, subdivisions, departments or subsidiaries of Commission Junction.

8.

"Digital Point Solutions, Inc." 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.

9.

"Shawn Hogan" shall mean the Person known or doing business as Shawn

Hogan and his employees, agents, attorneys, consultants, and representatives, any fictitious business names operated by Shawn Hogan or any pseudonyms used by Shawn Hogan, as well as any and all entities (business, legal or otherwise) owned, controlled or used by Shawn Hogan.

10.
11.

"Defendants" shall mean Digital Point Solutions, Inc. and/or Shawn Hogan. "Person" or "Persons" shall mean any natural person, proprietorship, public

or private corporation, partnership, joint venture, trust, association, company, firm, government or government entity (including any government agency, board, authority, commission, or political subdivision or department thereof), or any other form of business or legal entity, organization or arrangement, group or association.

12.

"Internet Forum" shall mean any method or facility for publication of

content or communication among Users that is accessed or used via the Internet or other computer network including, but not limited to, message and bulletin boards, blogs, Usenet newsgroups, chatrooms, IRC channels or listservs.

13.

"Affiliate Marketing Program" shall mean any program by which a

company engages third parties (affiliates) to engage in marketing efforts on its behalf.

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14.

This subpoena calls for the production of all responsive Documents that are

within the possession, custody or control of NetHere. 15. 1)ocurnents in the custody or possession of NetHere's counsel are deemed to

be in the custody, possession or control of NetHere. 16. All documents requested shall be produced in the same file or organizational

environment in which they are maintained. For example, a document that is part of a file, docket or other grouping should be physically produced together with all other documents from said file, docket or other grouping responsive to said request, in the same order or manner of arrangement as the original.

17.

In the event that any document responsive to the following document

requests has been destroyed, otherwise disposed of, or no longer in the party's control or custody, that document is to be identified by author, addressee, date, subject matter, number of pages, attachments or appendices, all persons to whom it was distributed, shown or explained, date and manner of destruction or other disposition, and persons destroying or disposing of the document.

18.

All documents or information not produced in response to these requests by

reason of a claiin of privilege or otherwise, shall be included in a log that identifies with respect to each document or information, the date, author, recipient, copyees, subject matter, and the specific grounds for withholding the document or information froin production. 19. If NetHere contends that any discovery request is objectionable in whole or

in part, NetHere shall state with particularity each objection, the basis for it, and the categories of information and documents to which the objections applies, and NetHere shall respond to the document request insofar as it is not deemed objectionable.

20.

If NetHere finds the meaning of any term in any discovery request unclear,

NetHere shall assume a reasonable meaning, state what the assumed meaning is, and respond to the request according to the assumed meaning.

2 1.

The words " a n d and "or" shall be construed in the conjunctive or
-3-

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disjunctive, whichever makes the request more inclusive. 22. 23. every." 24. These requests shall be deemed continuing so as to require further and The term "including" means "including, but not limited to." As used herein, "all," "any," "each," or "every" means "all, each and

supplemental production in accordance with Federal Rule of Civil Procedure 26(e).
REQUESTS FOR PRODUCTION

REQUEST NO. 1:
All Documents Relating to Defendants maintained by You, including all billing records, service logs, contracts, agreements, documents describing the type or types of service utilized by Defendants, the length of service, any records of session times andor durations for any services provided by You to Defendants, and any documents reflecting the means and sources of payment utilized by Defendants, including, but not limited to, all credit card numbers and/or bank account numbers.

REQUEST NO. 2:
All Documents Relating to Defendants' methods or techniques intended to, or causing, a User's browser to load any eBay webpage, webpage content or data therefrom.

REQUEST NO. 3:
All Documents Relating to Defendants' participation in eBay's Affiliate Marketing Program, including, but not limited to, all methods and technologies used by Defendants to obtain revenue from, manipulate or otherwise interact with, eBay's Affiliate Marketing Program, including, but not limited to, all software, source code, Javascript, and HTML code.

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REOUEST NO. 4:
All Documents Relating to the source of any technology, technique or method used by Defendants to participate in, manipulate or interact with the eBay Affiliate Marketing Program, or any other affiliate marketing program.

REOUEST NO. 5:
Documents sufficient to identify all advertising networks, advertising syndication services or websites used or purportedly used by Defendants to advertise or promote eBay or to interact in any way with eBay or eBay's Affiliate Marketing Programs.
REQUEST NO. 6:

All Documents Relating to advertisements for eBay used, or purported to be used, by Defendants on any website or ad network that directed or referred users to eBay.
REQUEST NO. 7:

All Documents reflecting the number and identity of Users who allegedly clicked on an advertisement for eBay used, or purported to be used, by Defendants to direct or refer Users to eBay.
REOUEST NO. 8:

All Documents reflecting the number and identity of Users as to whom Defendants caused that User's browser to load any eBay webpage, webpage content or data therefrom without clicking on an advertisement for eBay.
REQUEST NO. 9:

All Documents Relating to efforts, technologies, techniques or methods used by Defendants to avoid detection of their technologies, techniques or methods used to

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participate in, manipulate or interact with the eBay Affiliate Marketing Program, or any other affiliate marketing program.

REQUEST NO. 10:
All Documents Relating to payment of comissions or other revenue obtained by Defendants through participation in, interaction with or manipulation of eBay's Affiliate Marketing Program.

REQUEST NO. 11:
All Documents Relating to Communications between Defendants and eBay or any current or former employee of eBay.

REOUEST NO. 12:
All Documents Relating to any affiliate marketing programs, other than eBay's Affiliate Marketing Program, in which Defendants participated.

REQUEST NO. 13:
All Documents Relating to, or Communications between, Defendants and Comnission Junction or any current or former employee of Commission Junction.

REQUEST NO. 14:
All Documents Relating to, or Comunications between, Defendants and Kessler's Flylng Circus, Thunderwood Holdings, Inc., Dunning Enterprise, Inc., briandunning.com, Todd Dunning or Brian Dunning.

REOUEST NO. 15:
All Documents Relating to, or Comunications between, Defendants and Rachael Hughes, or any companies or entities owned, controlled, affiliated with or used by

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Rachael Hughes.

REQUEST NO. 16:
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 Defendants.

REQUEST NO. 17:
Documents sufficient to identify any Aliases used by Defendants in any Internet Forum at or within which Defendants discussed any aspect of their participation in, manipulation of or interaction with eBay's Affiliate Marketing Program, or any other affiliate marketing programs, including, but not limited to, forums such as blogs, listservs, Usenet newsgroups or chat rooms.

REQUEST NO. 18:
Documents sufficient to identify any Internet Forum at or within which Defendants discussed any aspect of their participation in, manipulation of or interaction with eBay's Affiliate Marketing Programs, or any other Affiliate Marketing Programs, including, but not limited to, forums such as blogs, listservs, Usenet newsgroups or chat rooms.

REOUEST NO. 19:
Documents sufficient to identify all internet service providers (ISPs) and IP addresses used by Defendants.

REOUEST NO. 20:
Documents sufficient to identify all computers, servers, electronic data storage and hosting companies, entities, or facilities used by Defendants.

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REQUEST NO. 21:
Documents sufficient to identify any entity used or hired to maintain or restore electronic data or systems relating to Defendants' participation in, manipulation of or interaction with eBay's Affiliate Marketing Program.

REOUEST NO. 22:
Documents sufficient to identify software used to clean, reformat or erase harddrives used by Defendants, or any equipment owned, used or maintained by Defendants.

REOUEST NO. 23:
All documents sufficient to identify all business entities or fictitious business names currently or formerly maintained by Defendants