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. 15

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page1 of 15

EXHIBIT 16

Dockets.Justia.com

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page2 of 15

Seyamack Kouretchian (State Bar No. 17174 I) Seyam~k@CoasfLawCloup,com Ross Campbell (State Bar No. 234827) Rcampbell@Coast LawGroup.com COAST LAW GROUP, LLP 169 Saxony Road, Suite 204 Encinitas, California 92024 Tel: [phone] Fax: [phone] Attorneys for Defendants, SHAWN HOGAN and DIGITAL POINT SOLUTIONS, INC.
UNITED STATES DISTMCT COURT FOR THE NORTHERN DISTRICT OF CALIF'ORNIA SAP? JOSE DIVISION

EBAY, INC., Plaintiff,
v.

)

Case No. CV 08-04052 JF PVT

1
) ) )

DIGITAL POINT SOLUTIONS, INC., SHAWN ) HOGAN, KESSLER'S FLYING CIRCUS, 1 T m E R W O O D HOLDINGS, INC., TODD DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, BRIANDUNNING.COM, ) and Does 1-20, 1
)

DEFENDANT DIGITAL POINT SOLUTION, IP?C.'S RESPONSES TO PLAINTIFF'S REQUESTS FOR ADmSS1oN (SET ONE)

Defendants.

PROPOUNDING PARTY: Plaintiff EBAY, INC. RESPONDING PARTY: SET NUMBER: Defendant DIGITAL POINT SOLUTIONS, NC. One

Defendant DIGITAL POINT SOLUTIONS, ICNC. (""Defendant") hereby responds to the Plaintiff EBAY, INC.'s ("PlaintifPsYy) Set of Requests for Admission, as follows: First

Defendant Digital Point SoIutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One

Case No. CV 08-04052 JF
1

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page3 of 15

I. PRELIMDimY STATEMENT
Defendant SHAWN HOGAN ("'Mr. Hogan") has asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution (United States v. Balsys (1998) 524 U.S. 666,672; Lefkowitz v. Tzirley (1973) 414 U.S. 70,77);the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. The provision of any responses by Defendant hereunder shall not be construed to be a waiver of the same. Defendant M e r objects because conduchg discovery is p~emature iaappropriate at this and time. FBI Special Agent Melanie Adarns and Assistant United States Attorney Kyle F. Walding 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 stay
of this action (and/or anv other amropriate relief). including a stav of all discovery in this matter, pending the resolution of any potential criminal vroceedings and/or until the statute of limitations on any such cn'minal ~roceedings run. To the extent Mr. Hogan determines that there is no longer a threat has of criminal prosecution andor elects to withdraw his assertion of the privilege against self-incrimination, Defendant exuressl~ reserves the right to supule111ent these resnonses accordingly (in whole or in wart), and to obiect to the use or disclosure of the followine.resDonses for any puruose whatsoever. Defendant fusther objects to the subject interrogatories in that Defendant's Motion to Dismiss Plaintifl's First Amended Complaint was granted with leave to amend as to Plaintiffs claims under the Racketeer Influenced and Corrupt Organizations Act and other fraud-based claims and discovery is therefore premature. Williams v. W l e Technologies, Inc., 112 F.3d 175, 178 (5th Cir. 1997) (in fraud i.X cases, the requisite elements must be adequately laid out "before access to the discovery process is granted." (emphasis in original)). Defendant fivther objects to the definitions set forth in Plaintiffs requests as compound, vague and ambiguous; these objections further include, but are not limited to, the following: "DPS" is

1 andlor individually, to information subject to the attorneyclient privilege, and purports to seek responses
from Mr. Hogan as phrased. "eBay" is further unduly burdensome and oppressive in that the phrases
"eBay's internationally operated websites," and "any and all divisions, subdivisions, departments or
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One

overbroad, unduly burdensome and oppressive in that it purports to apply to third parties collectively

Case No. CV 08-04052 JF
2

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page4 of 15

subsidiaries of eBay" reference information that is within Plaintiffs control and/or is unknown to Defendant. Defendant further objects because the term "Cookie Stuffmg" is vague and ambiguous Defendant incorporates each of the foregoing objections in Defendant's responses below.

LI. RESPONSES
REOUEST FOR ADMISSION NO. 1
Admit that DPS conducted business with eBay prior to Nay 14,2007.

Objection. This request, including the use of the definitions provided for "DPS"' and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his 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, Ilefendant incorporates the above Preliminary Statement herein by reference in full. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, tMC.conducted business with Plaintiff at any time.

REOUEST FOR ADMISSION NO. 2
Admit that DPS conducted business with eBay during at least some portion of 2006. ' Response to Request for Admission No. 2: Objection. This request, including the use of the definitions provided for "DPS" and "eI3ay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive, Defendant further objects to this request on the grounds that Mr. Hogan has invoked his 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 fuil. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, INC. conducted business with Plaintiff at any time.

1.1.1 1./.I
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One Case No. CV 08-04052 JF
3

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page5 of 15

-mOUEST FOR ADMISSION NO. 3
Admit that DPS conducted business with eBay during at least some portion of 2005. Resuonse to Reauest for Admission No. 3: Objection. This request, including the use of the defmitions provided for "DPS'and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant W e r objects to this request on the grounds that Mr. Hogan has invoked his 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 full. Subject to and without waiving these objections, Defmdant responds as follows: Defendaht denies that DIGITAL POINT SOLUTIONS, INC. conducted business with Plaintiff at any time.

WOUEST FOR ADMISSION NO. 4
Admit that DPS conducted business with eBay during at least some portion of 2004. Resuonse to Request for Admission No. 4: Objection. Tkis request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant hrther objects to this request on the grounds that Mr. Hogan has invoked his 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 fill. Subject to and . without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, ING. conducted business with Plaintiff at any time.

REOUEST FOR ADMISSION NO. 5
Admit that DPS conducted business with eBay during at least some portion of 2003. Response to Request for Admission No. 5: Objection. This request, including the use of the definitions provided for "DPS" and '%Bay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his privilege against self incrimination under the
Defendant Digital Point Solutions, inc.'s Responses to Plaintiffs Requests For Admission, Set One Case No. CV 08-04052 JF
4

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page6 of 15

Fifih 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 hll. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, LNC. conducted business with PlaintE at any time.

WOUEST FOR ADMISSION NO, 6
Admit that DPS participated in an eBay Affiliate Marketing Program or programs. Response to Request for Admission No. 6: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his 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 full. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, INC. participated in any eBay affiliate marketing programs.

REOUEST FOR ADMISSION NO. 7
Admit that, while participating in an eBay Affiliate Marketing Program or program, DPS utilized software programs and/or code that caused some Users' computers to access an eBay website without the User's knowledge. Response to Request for Admission No. 7: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant M e r objects to this request on the grounds that Mr. Hogan has invoked his 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 full. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One Case No. CV 08-04052 JF
5

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page7 of 15

POINT SOLUTIONS, INC. participated in any eBay affiliate marketing programs, and on that basis denies this request.

REOXJEST FOR ADMSSION NO. 8
Admit that, while participating in an eBay Affiliate Marketing Program or p r o w s , DPS utilized sofh.yare programs and/or code that caused some Users' computers to access an el3ay web server without the User's knowledge. Response to Request for Admission No. 8: Objection. This request, inc1uding the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant M e r objects to this request on the grounds that Mr. Hogan has invoked his priviIege 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 CaIifornia Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in MI. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, INC. participated in any eBay affiliate marketing programs, and on that basis denies this request.

WOUEST FOR ADMISSION NO. 9
Admit that, while participating in an eBay Affiliate Marketing Program or programs, WS utilized software programs andlor code that redirected a User to an eBay website without the User knowingly clicking an Advertisement Link. Response to Request for Admission No. 9: Objection. This request, including the use of the definitions provided for "DPS' and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defhdant fkrther objects to this request on the grounds that M. Hogan has invoked his 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 full. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One
.

Case No. CV 08-04052 SF
6

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page8 of 15

POINT SOLUTIONS, INC. participated in any eBay *liate denies this request. RIEOUEST FOR ADMISSION NO. 10

marketing programs, and on that basis

Admit that, while participating in an eBay Affiliate Marketing Program or programs, DPS utilized s o h a r e programs and/or code that redirected a User to an eBay web server without the User knowingly cIicking an Advertisement Link. Resuonse to Reauest for Admission No, 10: Objection. This request, including the use of the defnitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant M e r objects to this request on the grounds that Mr. Hogan has invoked his 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 hll. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL, POINT SOLUTIONS, INC. participated in any eBay &liate marketing programs, and on that basis denies this request.

R.EOUE23T FOR ADMISSION NO. 11

.

Admit that, while participating in an eBay Affiliate Marketing Program or programs, DPS utilized s o h a r e programs andlor code that performed Cookie Stuffing. Response to Request for Admission No. 11: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 50 1;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: Defendant denies that DIGITAL POINT SOLUTIONS, INC. participated in any eBay affiliate marketing programs, and on that basis
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One
Case No.CV 08-0405 2 SF

7

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page9 of 15

denies this request.

FCEOUEST FOR ADMSSION NO. 12
Admit that DPS used methods, techniques andlor technological measures to avoid detection by eBay of certain aspects of how DPS interacted with eBay's Affiliate Marketing Program or programs. Res~onse Request for Admission No. 12: to Objection. m s request, including the use of the definitions provided for "DPS" and "eBay," is

vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to
this request on the grounds that Mr. Hogan has invoked his privilege against self hcxhhation under the Fifth. Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and CaMiornia 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: Defendant denies that DIGITAL POINT SOLUTIONS, P V . participated in any eBay aEliate marketing programs andlor that it used any LC such methods, techniques or measures.

REOtJEST FOR ADMISSION NO. 13

'

Admit that DPS used methods, techniques and/or technological measures to avoid detection by Commission Junction of certain aspects of how DPS interacted with eBay's Afftliate Marketing Program or programs. Resuonse to Request for Admission No. 13: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his 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 full. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, IPJC. participated in any eBay S l i a t e marketing programs andlor that it used any such methods, techniques or measures.
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One Case No. CV 08-04052 JF
8

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page10 of 15

REOUEST FOR ADMISSION NO. 14
Admit that DPS utilized methods, techniques and/or technological measures to avoid detection by eBay of Cookie Stuffing caused by DPS. Resmnse to Request for Admission No. 14: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his 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 full. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, INC. partidipated in any eBay affiliate marketing programs andor that it used any such methods, techniques or measures.

lUCOUE3T FOR ADMISSION NO. 15
Admit that DPS utilized methods, techniques and/or technological measures to avoid detection by Commission Junction of Cookie Stuffing caused by DPS. Response to Request for Admission No. 15: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his 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 111. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, INC. participated in any eBay affiliate marketing programs andlor that it used any such methods, techniques or measures.
I././ 1. .1 1
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiff's Requests For Admission, Set One
Case No.CV 08-04052 JF

9

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page11 of 15

REOUEST FOR ADMISSION NO. 16
Admit that, while participating in an eBay Affiliate Marketing Program or programs, DPS utilized software andfor code to determine the geographic location of a User. Response to Request for Admission No. 16: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant M e r objects to this request on the grounds that Mr. Hogan has invoked his 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 Califomia 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: Defendant denies that DIGITAL POINT SOLUTIONS, INC. participated in any eBay affiliate marketing programs, and on that basis denies this request.

W O l B S T FOR ADMISSION NO. 17
Admit that, while participating in an eBay Affiliate Marketing Program or programs, DPS utilized soilware and/or code to determine whether a User was located in San Jose, CA. Response to Request for Admission No. 17: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unddy burdensome and oppressive. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his 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 full. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, INC. participated in any eBay affiliate marketing programs, and on that basis denies this request.
/./.I

I././
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One Case No. CV 08-04052 JF
10

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page12 of 15

REOUEST FOR ADmSSION NO. 18

Admit that, while participating in an eBay Affiliate Marketing Program or programs, DPS utilized software andlor code to determine whether a User was located in Santa Barbara, CA. Response to Request for Admission No, 18: Objection. This request, including the use of the definitions provided for 'DPS"' and "eBay,"is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the ~ o u n dthat h k Hogm has invoked his privilege against self incrimination under the s 4. Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article I, Section 15; and California Evidence Code section 940. Further, Defendant incorpbrates the above Preliminary Statement herein by reference in full. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, ING. participated in any eBay affiliate marketing programs, and on that basis denies this request.
mOUEST FOR ADMSSXON NO. 19

Admit that, while participating in an eBay Affiliate Marketing Program or programs, DPS utilized software and/or code that would disable or not engage DPS's Cookie Stuffing technology if a User's computer was located in San Jose, CA. Res~onse Request for Admission No. 19: to Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the grounds that Mr! Hogan has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the CaIifornia 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,'~efendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, INC. participated in any 6 ~ affiliate marketing programs, and on that basis a~ denies this request.

1.1.1
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One Case No. CV 08-04052 JF
II

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page13 of 15

REOUEST FOR ADMISSION NO. 20
Admit that, while participating in an eBay Affiliate Marketing Program or programs, DPS utilized s o h a r e andlor code that would disable or not engage DPS's Cookie Stuffig technology if a User's computer was located in Santa Barbara, CA. Resmnse to Request for Admission No. 20: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his 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 incorpbrates the above Preliminary Statement herein by reference in 111. Subject to and without waiving these objections, Defmdant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, INC. participated in any eBay affiliate marketing program, and on that basis denies this request.

REOUEST FOR ADMISSION NO. 21
Admit that DPS received commissions from eBay, whether directly or through Commission Junction, that were based, in whole or in part, on Users whose computers were directed to eBay's website without the User's knowledge. Response to Reauest for Admission No. 2 1: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant M e r objects to this request on the grounds that Mr. Hogan has invoked his 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 111. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, INC. received any commissions from eBay at any time.

I././
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One
Case No.CV 08-04052 JF 12

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page14 of 15

RIEOUEST FOR ADMISSION NO. 22 Admit that DPS rewived commissions from eBay, whether directly or through Commission Junction, that were based, in whole or in part, on Users who had never actually clicked on a DPS-sponsored eBay advertisement link. Res~onse Re~uest Admission No. 22: to for ObjeCtion. This request, including the use of the definitions provided for "DPS"and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant fkther objects to this request on the grounds that W. Hogan has invoked his privilege against self incrimination under the Fifth Amendment to the U i e States Constitution; the Federal Rules of Evidence, Rule 501; the ntd 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: Defendant denies that DIGITAL POINT SOLUTIONS, INC. received any commissions from eBay at any time.

m O m S T FOR ADMISSION NO. 23
Admit that DPS received commissions fiom eBay, whether directly or through Commission Junction, that were based, in .whole or in part, Cookie StuRmg caused by DPS. Resnonse to Request for Admission No. 23: Objection. T i request, including the use of the definitions provided for ""DPS" and "eBay," is hs vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant M e r objects to this request on the grounds that Mr. Hogan has invoked his 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 full. Subject to and without waiving these objections, Defendant responds as follows: Defendant denies that DIGITAL POINT SOLUTIONS, INC. received any commissions from eBay at any time.

REOUEST FOR ADMISSION NO. 24
Admit that DPS engaged in Cookie StuEmg with the intent to defkaud eBay.

/./.I
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One
Case No. CV 08-04052 JF

13

Case5:08-cv-04052-JF Document129-16

Filed09/29/09 Page15 of 15

Response to Request for Admission No. 24: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant fkther objects to this request on the grounds that Mr. Hogan has invoked his 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 full,
RIEOUEST FOR ADMISSION NO.25

Admit that DPS defrauded eBay. Resuonse to Request for Admission No. 25: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects to this request on the grounds that Mr. Hogan has invoked his 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 f l . ul DATED: March 12,2009 COAST LAW GROUP LLP

and Digital Point Solutions, Inc.

Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Admission, Set One

F Case No. CV 08-04052 J

14