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. 14

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EXHIBIT 15

Dockets.Justia.com

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Seyatnack Kouretchian (State Bar No. 171741) [e-mail] Ross Campbell (State Bar No. 234827) Rcampbell@Coast Law&oup.com COAST LAW GROUP, LLP 169 Saxony Road, Suite 204 Encinitas, California 92024 Tel: [phone] Fax: [phone] Attorneys for Defendants, S L 4 . W HOGAN and DIGITAL P O M SOLUTIONS, INC.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIF'ORNIA SAN JOSE DMSION

EBAY, INC., Plaintiff,
v.

-

) ) ) ) ) )

Case No. CV 08-04052 JF PVT
DIEFEND~T DIGITAL POINT SOLUTION, INC.'S RESPONSES TO PLA.INTIFF'S INTERROGATORlES (SET ONE)

DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, KESSLER'S FLYING CIRCUS, TIfiTNDERWOOD HOLDINGS, INC., TODD DUNNING, D G 13NTERPRISEy INC., BRIAN DUNNING, B R I m D m I N G . C O M , and Does 1-20,
Defendants.

1
)

)
)

1

1

PROPOWZNG PARTY: PlaintB EBAY, XNC. RESPONDING PARTY: SET NUMBER: Defendant DIGITAL, POINT SOLUTIONS, INC. One

Defendant DIGITAL POINT SOLUTIONS, INC. ("Defendanty')hereby responds to the Plaintiff EBAY, INC.'s ("Plaintiff sf') First Set of Interrogatories, as follows:

Defendant Digital Point Solution, Inc.'s Responses to Plaintiffs Interrogatories, Set One

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PRELlMINARY STATEMENT

Defendant SHAWN HOGAN ("W.Hogan") has asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution (United Staies v. Ballrys (1998) 524 U.S. 666,672; LeJkowitz v. Turley (1973) 414 US. 70,77); the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and CalFfornia Evidence Code section 940. The provision of any responses by Defendant hereunder shall not be construed to be a waiver of the same. Defendant fkther objects because conducting discovery is premature and inappropriate at this time. FBI Special Agent Melanie Adams and Assistant United States Attorney Kyle F. W d i n g inform that Defendant is the subject of a grand jury investigation and that it is anticipated that criminal charges will be filed. Upon the transfer of this action to the appropriate forum, Defendant intends to seek a stav of this action (and/or any other appropriate relief), includinrr a stav of all discovery in this matter, pending the resolution of any potential criminal wroceedings andlor until the statute of limitations on any such criminal proceedings has run. To the extent Mr. Hogan determines that there is no longer a threat of criminal prosecution andlor elects to withdraw his assertion of the privilege against self-incrimination, Defendant ex~resslv reserves the right to supplement these resDonses accordingly finwhole or in part), and to object to the use or disclosure of the followinrr resgonses for any purpose whatsoever. Defendant fkther objects to the subject interrogatories in that Defendant's Motion to Dismiss Plaintiff's First Amended Complaint was granted with leave to amend as to Plaintiff's claims under the Racketeer Influenced and Corrupt Organizations Act and other fraud-based claims and discovery is therefore premature. Williams v. W M Technologies, Inc., 112 F.3d 175, 178 (5th Cir. 1997) (in fiaud cases, the requisite elements must be adequately laid out "before access to the discovery process is granted."(emphasis in original)). Defendant further objects to the definitions set forth in Plaintiffs requests as compound, vague and ambiguous; these objections fbrther include, but are not limited to, the following: "DPS" is overbroad, unduly burdensome and oppressive in that it purports to apply to third parties collectively andor individually, to information subject to the attorney-client privilege, and purports to seek responses from Mr. Hogan as phrased. "eBay7' is M e r unduly burdensome and oppressive in that the phrases "eBay's internationally operated websites," and "any and all divisions, subdivisions, departments or
Defendant Digital Point Solution, Inc.'s Responses to Plaintiffs Interrogatories, Set One W Case No. CV 08-04052 JF P
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iubsidiaries of eBay" reference information that is within Plaintiffs control andlor is unknown to Iefendant. Defendant incorporates each of the foregoing objections in Defendant's responses below.

I. RESPONSES I
[NTERROGATORYNO. 1
Identify all persons or entities with howledge regarding DPS's participation, manipulation or nteraction in any Affiliate Marketing Program including eBayfsAffiliate Marketing Programs including, 3ut not limited to, all methods, techniques and technologies, sofhvare, source code, Javascript and
HlML, code, used by DPS to obtain revenue from, or otherwise interact with, participate in or

minipdate any AffiliateMarketing Program. Response to IntenofratomNo. 1: Objection. This request, including the use of the definitions provided for "DPS"and "eBay," is vague and ambiguous, compound, overbroad, and unduly burdensome and oppressive. Defendant Further objects because this interrogatory is a r w e n h t i v e with respect to the terms 'Lmanipulation"and

manipulate." Defendant firther objeGts because this interrogatory seeks information not reasonably
calculated to lead to the discovery of admissible evidence. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his privilege against &lf incrimination under the Fifth h e n b e n t to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full. Subject to and without waiving these objections, Defendant responds as follows: No such persons or entities exist, as Defendant DIGITAL POINT SOLUTIONS, INC. has never conducted any business of any kind with Plaintiff.

INTERROGATORY NO*2
Identify all Internet Forums at, within or through which DPS discussed any aspect of their participation in, manipulation of or interaction with eBayfsAffiliate Marketing Programs, or any other Affiliate Marketing Program.
/ ././

/.I./
Defendant Digital Point Solution, Inc.'s Responses to Plaintiffs Interrogatories, Set One

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Resuonse to Interrogatory No. 2: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, compound, overbroad, and w d d y burdensome and oppressive. Defendant M e r objects because this interrogatory is argumentative wt respect to its use of the term ih "manipulatioa" Defendant further objects because this interrogatory seeks Somation not reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to this request on

i the grounds that Mr. Hogan has invoked h s privilege against self incrimination under the Fifth
Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in Ml. Subject to and without waiving these objections, Defendant responds as follows: No such forums exist, as Defendant DIGITAL POINT SOLUTIONS, INC. has never conducted any business of any kind wt Plaintiff. ih DATED: March 12,2009 COAST LAW GROUP LLP

A Attorneys for Defendants, Shawn Hogan and Digital Point Solutions, Inc.

Defendant Digital Point Solution, Inc.'s Responses to Plaintiffs Interrogatories, Set O e n

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