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

Filing 192

CASE MANAGEMENT STATEMENT Joint Case Management Statement and [Proposed] Order filed by eBay Inc.. (Kennedy, Colleen) (Filed on 2/19/2010)

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

Doc. 192

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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 120, Defendants. Case No. C 08-4052 JF PVT JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER Conference Date: February 26, 2010 Time: 10:30 a.m. Judge: Hon. Jeremy Fogel

JOINT CASE MANAGEMENT STMT. AND [PROPOSED] ORDER - C 08-4052 JF PVT
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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 IV. III. II.

The parties to the above-entitled action jointly submit this Case Management Statement and Proposed Order and request that the Court adopt it as its Case Management Order in this case. The parties, through counsel, have met and conferred on the matters contained herein. I. JURISDICTION AND SERVICE There have been no changes since the previous Joint Case Management Statement. FACTS There have been no changes since the previous Joint Case Management Statement. LEGAL ISSUES There have been no changes since the previous Joint Case Management Statement. PENDING AND ANTICIPATED MOTIONS eBay's Statement: By the time of the Case Management Conference on February 26, there will be three sets of motions pending before this Court. First, on September 25, 2009, eBay filed a motion to strike the answer to eBay's Second Amended Complaint ("SAC") that was filed jointly by defendants Brian Dunning, KFC, THI and BrianDunning.com. eBay's motion to strike was based on those entity defendants' improper assertion of the Fifth Amendment privilege--which collective entities unquestionably lack--to withhold all substantive responses to the allegations in eBay's SAC. The motion to strike was heard on January 29, 2010. Second, each of the three defendant groups--1) Brian Dunning, THI, KFC and BrianDunning.com, 2) Todd Dunning and DEI, and 3) Shawn Hogan and DPS, Inc.--has filed a motion to stay this action pending the resolution of the federal criminal investigation of the three individual defendants. The first two defendant groups filed their motions to stay on October 15, 2009, and Shawn Hogan and DPS, Inc. filed their motion to stay on October 16, 2009. eBay has opposed defendants' motions on the grounds that 1) the extraordinary remedy of a stay is not appropriate where no criminal action is pending against any defendant and it is unclear whether or when any indictments will
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issue, or what the scope of any eventual indictments may be, and 2) the Keating factors weigh against issuance of a stay because a stay would be unduly prejudicial to eBay while placing only a minimal burden on defendants. Defendants' motions to stay were also heard on January 29, 2010. Since that time, eBay has obtained no new information regarding the status of the criminal investigation. Third, prior to the Case Management Conference, eBay intends to file a motion for sanctions, including contempt and an award of attorneys' fees, to be heard on April 2, 2010, against defendants Brian Dunning, THI, BrianDunning.com and KFC based on their failure to comply with this Court's order of January 12, 2010 sustaining eBay's objections to Magistrate Judge Trumbull's order of November 19, 2009 and granting eBay's motions to compel. The January 12, 2010 order has been pending for more than five weeks, and this Court confirmed at the January 29 hearing that defendants should comply with the order unless and until a stay is issued. These defendants have made no efforts to comply, and have refused until very recently even to give eBay a proposed date for compliance. They now claim that they will be unable to comply until March 1, 2010, nearly seven weeks after the order was issued. eBay yesterday received supplemental discovery responses from defendants Shawn Hogan and Digital Point Solutions, Inc., including a substantial production of documents. eBay is currently analyzing that production, but anticipates that it may need to move to challenge some of the confidentiality designations made by the DPS Defendants in that production pursuant to the Stipulated Protective Order, in the event that a meet and confer process is unsuccessful. In addition to these motions, eBay anticipates that it may need to move to compel responses from all defendants to the requests in eBay's First Set of Requests for Production that seek information regarding defendants' financial condition, including requests for defendants' financial statements and tax returns. Defendants Brian Dunning, THI, BrianDunning.com and KFC have declined to complete the meet and confer on this issue while their motions to stay are pending before the Court, Dunning Enterprise, Inc.
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has stated that it will produce its responsive documents, and DPS, Inc. has agreed to provide some of the requested financial records within seven days in the event its motion to stay is denied. It is unclear at this stage whether an agreement can be reached with all defendants on this issue. eBay also anticipates filing a motion for summary judgment or summary adjudication following the close of discovery. eBay further anticipates filing motions in limine before trial. Defendants Kessler's Flying Circus, Thunderwood Holdings, Inc., Brian Dunning, Brian Dunning.com, Todd Dunning and Dunning Enterprise, Inc.'s (collectively "NonDPS Defendants") Statement: The hearing on Defendants' motion to stay this action pending the resolution of the federal criminal investigation was held on January 29, 2010. The Court has not yet issued a ruling on the matter. eBay's motion to strike the answer of Brian Dunning, KFC, THI and BrianDunning.com was also heard that day. No ruling has yet issued. If the Court denies Defendants' pending motion to stay, Defendants reserve the right to renew a motion to stay in the future based on the criminal proceeding. It is too preliminary to identify other motions that Defendants may file in the future. DPS Defendants' Statement: Defendants Digital Point Solutions, Inc. and Shawn Hogan have filed a motion to stay the action and/or discovery in light of the pending criminal matter and the direct factual and legal overlap between the two proceedings, and the indication by the United States Attorney's Office for the Northern District of California that it intends to pursue an indictment after the commencement of the New Year. As of January 11, 2010, the USAO has indicated that it is not willing to provide any further information regarding the status of said proceedings. The motions for stay were heard on January 29, 2010 (in conjunction with Plaintiff's motion to strike the joint Answer to the Second Amended Complaint filed by defendants Brian Dunning, KFC, THI and BrianDunning.com). The DPS Defendants further anticipate filing a motion for summary judgment
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and/or adjudication as well as a motion to transfer and/or dismiss on the grounds of forum non conveniens. In addition, Mr. Hogan will seek leave to amend his Answer to substantively respond to the allegations of the SAC upon the conclusion of the criminal matter and, to the extent necessary thereafter, will move to exclude any reference to the assertion of the Fifth Amendment at trial or otherwise. Finally, to the extent the action is not dismissed or transferred, the DPS Defendants anticipate requesting bifurcation and/or separate trials as to each respective defendant group. V. VI. AMENDMENT OF PLEADINGS There have been no changes since the previous Joint Case Management Statement. EVIDENCE PRESERVATION There have been no changes since the previous Joint Case Management Statement. VII. DISCLOSURES There have been no changes since the previous Joint Case Management Statement. VIII. DISCOVERY PLAN eBay's Statement: As described in the previous Joint Case Management Statement, eBay is proceeding with full fact discovery, although its efforts have been largely thwarted by defendants' repeated improper invocations of the Fifth Amendment privilege. As discussed above, defendants Brian Dunning, THI, BrianDunning.com and KFC have yet to comply in any respect with the Court's January 12, 2010 discovery order. eBay continues to work with the remaining defendants toward their compliance with the order, although some issues remain. Also as noted above, the DPS Defendants recently produced to eBay a substantial number of documents pursuant to the January 12 order. eBay intends to provide a brief report to the Court at the Case Management Conference regarding the contents of these documents, a number of which are designated as "Highly Confidential ­ Attorneys' Eyes Only" and therefore cannot be described in a public filing. Assuming that all defendants ultimately comply with the January 12, 2010 order without the need for extensive further motion practice, eBay continues to propose the
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discovery deadlines set forth in the previous Joint Case Management Statement filed on January 15, 2010 and in the attached schedule. There are no other changes since eBay's statement in the previous Joint Case Management Statement. Non-DPS Defendants' Statement: Defendants' pending Motion for Stay, if granted, should include a stay of all discovery. Should Defendants' Motion for Stay be denied at this time, Defendants reserve the right to renew said motion based on the criminal proceedings. Should Defendants' Motion for Stay be denied, Defendants KFC, THI, Brian Dunning and BrianDunning.com agree to supplement their responses per the Court's previous order on or before March 1, 2010. Defendants Todd Dunning and Dunning Enterprise, Inc. contend that they have complied with Magistrate Judge Trumbull's order. DPS Defendants' Statement: The DPS Defendants have produced documents and provided supplemental discovery responses pursuant to the Court's January 12, 2010 discovery order. In terms of discovery dates, the DPS Defendants' position is that dates should not be set until after the motion for stay has been adjudicated. To the extent dates are set at the Case Management Conference, fact and expert discovery should not close until April 2011 and July 2011, respectively (these dates may need to be further extended depending on when the criminal matter is resolved). In light of the expansive timeframe of the alleged wrongdoing and the number of potential percipient and party witnesses associated with Commission Junction, Plaintiff, and Plaintiff's subsidiaries, 25 to 30 depositions are warranted in this case. IX. RELATED CASES There have been no changes since the previous Joint Case Management Statement. X. RELIEF There have been no changes since the previous Joint Case Management Statement.

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XI.

SETTLEMENT AND ADR eBay's Statement: There have been no changes since the previous Joint Case Management Statement. Non-DPS Defendants' Statement: There have been no changes since the previous Joint Case Management Statement. DPS Defendants' Statement: As noted above, the DPS Defendants have produced documents and provided

supplemental discovery responses pursuant to the Court's January 12, 2010 discovery order. Plaintiff previously indicated that mediation would be appropriate at this stage of the proceedings. The DPS Defendants' position is that the matter should be referred to mediation. XII. MAGISTRATE JUDGE There have been no changes since the previous Joint Case Management Statement. XIII. OTHER REFERENCES There have been no changes since the previous Joint Case Management Statement. XIV. NARROWING OF ISSUES There have been no changes since the previous Joint Case Management Statement. XV. EXPEDITED SCHEDULE There have been no changes since the previous Joint Case Management Statement. XVI. SCHEDULING The parties' proposed schedules are attached as Exhibit A. There have been no changes to the schedule since the previous Joint Case Management Statement. XVII. TRIAL There have been no changes since the previous Joint Case Management Statement. XVIII. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS

There have been no changes since the previous Joint Case Management Statement.

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Dated: February 19, 2010

DAVID R. EBERHART SHARON M. BUNZEL COLLEEN M. KENNEDY O'MELVENY & MYERS LLP

By: /s/ David R. Eberhart David R. Eberhart Attorneys for Plaintiff eBay Inc. Dated: February 19, 2010 LEO J. PRESIADO RUS, MILIBAND & SMITH, A PROFESSIONAL CORPORATION

By: /s/ Leo J. Presiado Leo J. Presiado Attorneys for Defendants Thunderwood Holdings, Inc., Brian Dunning and BrianDunning.com Dated: February 19, 2010 STEWART H. FOREMAN FREELAND, COOPER & FOREMAN, LLP

By: /s/ Stewart H. Foreman Stewart H. Foreman Attorneys for Defendants Todd Dunning and Dunning Enterprise, Inc. Dated: February 19, 2010 PATRICK K. MCCLELLAN LAW OFFICE OF PATRICK K. MCCLELLAN

By: /s/ Patrick K. McClellan Patrick K. McClellan Attorney for Defendant Kessler's Flying Circus
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Dated: February 19, 2010

SEYAMACK KOURETCHIAN COAST LAW GROUP, LLP

By: /s/ Ross Campbell Ross Campbell Attorneys for Defendants Digital Point Solutions, Inc. and Shawn Hogan ATTESTATION Pursuant to General Order No. 45 X(B), I hereby attest that concurrence in the filing of this document has been obtained from each of the above-listed signatories.

By: /s/ David R. Eberhart David R. Eberhart t

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CASE MANAGEMENT ORDER The Case Management Statement and Proposed Order is hereby adopted by this Court as the Case Management Order for the case, and the parties are ordered to comply with this Order. In addition, the Court orders that a further Case Management Conference will be held on ______________. IT IS SO ORDERED.

Dated: ____________________

The Honorable Jeremy Fogel United States District Court Judge Northern District of California

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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 Event Fact discovery closes Last day for expert reports on merits

EXHIBIT A eBay's Proposed Dates September 24, 2010 November 12, 2010 Defendants' Proposed Dates

Last day for depositions December 3, 2010 of experts Last day for responsive December 17, 2010 expert reports Close of expert January 14, 2011 discovery Last day to file dispositive motions Oppositions to dispositive motions due Reply briefs in support of dispositive motions due Hearing on dispositive motions Required Meeting Prior to Pretrial Conference Pretrial Conference Statement Pretrial Conference Trial February 18, 2011 March 25, 2011 April 15, 2011

May 6, 2011 June 21, 2011 June 27, 2011 July 11, 2011 August 22, 2011

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