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

Filing 170

OBJECTIONS to re 166 Order on Motion to Compel,,, / Plaintiff EBay Inc.'s Objections To Magistrate Judge's Order Of November 19, 2009 On EBay's Motion To Compel by eBay Inc.. (Attachments: # 1 Proposed Order)(Eberhart, David) (Filed on 12/3/2009)

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 [PROPOSED] ORDER SUSTAINING PLAINTIFF EBAY INC.'S OBJECTIONS TO MAGISTRATE JUDGE'S ORDER OF NOVEMBER 19, 2009 ON EBAY'S MOTIONS TO COMPEL Hearing Date: Time: Courtroom: Judge: None Set None Set 3 Hon. Jeremy Fogel

[PROPOSED] ORDER SUSTAINING EBAY'S OBJECTIONS TO ORDER CASE NO. C 08-04052 JF PVT

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

On December 3, 2009, Plaintiff eBay Inc. filed timely objections to Magistrate Judge Patricia V. Trumbull's November 19, 2009 Order Granting in Part and Deferring Ruling in Part on Plaintiff eBay, Inc.'s Two Motions to Compel. Based upon review of the papers filed and oral argument presented, and for good cause appearing: IT IS HEREBY ORDERED that Plaintiff eBay Inc.'s Objections to the Order are SUSTAINED. The Order is hereby set aside to the extent it denied and/or deferred ruling on Plaintiff eBay Inc.'s two motions to compel. The Court therefore hereby GRANTS Plaintiff's motions and ORDERS: 1. that Defendant Kessler's Flying Circus's objections to eBay's Interrogatories on the grounds of the Fifth Amendment are stricken and Kessler's Flying Circus shall provide supplemental responses to those interrogatories within 15 days of this Order; 2. that Defendants Thunderwood Holdings, Inc.'s and BrianDunning.com's objections to eBay's Interrogatories and Requests for Admission on the grounds of the Fifth Amendment are stricken and those Defendants shall provide supplemental responses to those interrogatories and requests for admission within 15 days of this Order; 3. that, notwithstanding their continuing invocations of their Fifth Amendment rights, within 15 days of this Order Defendants Brian Dunning and Todd Dunning shall produce all documents responsive to eBay's First and Second Sets of Requests for Production that were previously obtained by the FBI; 4. that Defendants Brian Dunning, Todd Dunning, Kessler's Flying Circus, Thunderwood Holdings, Inc., and BrianDunning.com shall exercise any and all rights that they may have to obtain documents from Rackspace US, Inc. that may be responsive to eBay's First and Second Sets of Requests for Production and, as otherwise compelled by this Order or as previously set forth in discovery responses or agreed by the parties, produce documents responsive to those requests for production within 15 days of this Order;
[PROPOSED] ORDER SUSTAINING EBAY'S OBJECTIONS TO ORDER CASE NO. C 08-04052 JF PVT

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

5. that, notwithstanding his continuing invocations of his Fifth Amendment rights, within 15 days of this Order Defendant Shawn Hogan shall produce all documents responsive to eBay's First and Second Sets 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.; 6. that Defendant Digital Point Solutions, Inc. shall conduct a diligent search for and produce all documents responsive to eBay's First and Second Set of Requests for Production within 15 days of this Order, including by exercising any and all rights that it may have to obtain documents from third party NetHere, Inc.; and 7. that Defendant Digital Point Solutions, Inc.'s objections to eBay's Interrogatories No. 1-2, Requests for Admission No. 1-23 and Requests for Production No. 1-8, 13-14 and 23 on the grounds that the definition of "DPS" is overbroad, unduly burdensome and oppressive are stricken and Digital Point Solutions, Inc. shall provide supplemental responses to those requests, including information regarding "DPS" as defined by eBay, within 15 days of this Order.

IT IS SO ORDERED.

DATED: _____________________

Honorable Jeremy Fogel United States District Judge

-2-

[PROPOSED] ORDER SUSTAINING EBAY'S OBJECTIONS TO ORDER CASE NO. C 08-04052 JF PVT