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

Filing 196

Declaration of Colleen M. Kennedy in Support of 194 MOTION for Sanctions PLAINTIFF EBAY INC.S NOTICE OF MOTION AND MOTION FOR DISCOVERY SANCTIONS AGAINST BRIAN DUNNING, BRIANDUNNING.COM, THUNDERWOOD HOLDINGS, INC., AND KESSLERS FLYING CIRCUS 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)(Related document(s) 194 ) (Eberhart, David) (Filed on 2/26/2010)

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

Doc. 196

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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 1-20, Defendants. Case No. C 08-04052 JF PVT DECLARATION OF COLLEEN M. KENNEDY IN SUPPORT OF EBAY INC.'S MOTION FOR DISCOVERY SANCTIONS AGAINST BRIAN DUNNING, BRIANDUNNING.COM, THUNDERWOOD HOLDINGS, INC., AND KESSLER'S FLYING CIRCUS Hearing Date: April 2, 2010 Time: 9:00 a.m. Courtroom: 3 Judge: Hon. Jeremy Fogel

KENNEDY DECL. ISO EBAY'S MOTION FOR SANCTIONS CASE NO. C-08-4052 JF PVT

Dockets.Justia.com

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I, Colleen M. Kennedy, declare as follows: 1. I am a member of the Bar of the State of California and associated with the

law firm of O'Melveny & Myers LLP, counsel for eBay Inc. in this matter. I submit this Declaration in support of eBay Inc.'s Motion For Discovery Sanctions Against Brian Dunning, BrianDunning.com, Thunderwood Holdings, Inc. ("THI"), and Kessler's Flying Circus ("KFC") (collectively, the "BD/KFC Defendants"). I have personal knowledge of the facts set forth in this declaration and, if called to testify as a witness, could and would do so under oath. 2. On January 13, 2010, the day after this Court's January 12, 2010 order (the

"Order") issued, I sent an email to counsel for all defendants inquiring about the timeline for their clients' compliance with the Order. A true and correct copy of that email is attached hereto as Exhibit 1. Patrick McClellan, counsel for KFC, never responded to my January 13, 2010 email. 3. Having received no information from Mr. McClellan regarding KFC's

compliance with the Order, I called him on February 8, 2010 and left a voicemail indicating that I wanted to discuss a timeline for his clients' provision of the required discovery responses. Mr. McClellan returned my call on February 9, 2010, and informed me that he was not aware of exactly what the Order had instructed KFC to do, but stated that whatever responsive information existed in KFC's possession would be provided quickly. He requested that I send him an email detailing eBay's understanding of KFC's obligations under the Order. I sent him such an email on February 10, 2010, a copy of which is attached hereto as Exhibit 2. 4. Attached hereto as Exhibit 3 is a true and correct copy of a January 14,

2010 email from Leo Presiado, counsel for Brian Dunning, BrianDunning.com and THI, to Colleen Kennedy. In this email, Mr. Presiado stated that he had not yet had a chance to determine when his clients could comply with the Order. 5. Attached hereto as Exhibit 4 is a true and correct copy of a January 21,
KENNEDY DECL. ISO EBAY'S MOTION FOR SANCTIONS CASE NO. C-08-4052 JF PVT

2010 email from Colleen Kennedy to Leo Presiado. Mr. Presiado never responded to this
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email. 6. Following the January 29, 2010 hearing before this Court, I exchanged

several rounds of meet-and-confer correspondence with Leo Presiado in an effort to obtain a prompt deadline for his clients' compliance with the Order. 7. Attached hereto as Exhibit 5 is a true and correct copy of a February 12,

2010 letter from Leo Presiado to Colleen Kennedy. 8. Attached hereto as Exhibit 6 is a true and correct copy of a February 8,

2010 letter from Colleen Kennedy to Leo Presiado. 9. Attached hereto as Exhibit 7 is a true and correct copy of a February 9,

2010 letter from Leo Presiado to Colleen Kennedy. 10. Attached hereto as Exhibit 8 is a true and correct copy of a February 9,

2010 letter from Colleen Kennedy to Leo Presiado. 11. Attached hereto as Exhibit 9 is a true and correct copy of a February 10,

2010 letter from Leo Presiado to Colleen Kennedy. 12. Attached hereto as Exhibit 10 is a true and correct copy of a February 10,

2010 letter from Colleen Kennedy to Leo Presiado. 13. In this meet-and-confer correspondence, Mr. Presiado initially took the

position that his clients had an additional 30 days to comply with the Order pursuant to an agreement reached between eBay's counsel David Eberhart and Stewart Foreman, counsel for defendants Todd Dunning and Dunning Enterprise, Inc., and later took the position that this agreement was made between Mr. Eberhart and Ross Campbell, counsel for defendants Digital Point Solutions, Inc. and Shawn Hogan. 14. I subsequently had a telephone conversation with Mr. Presiado on the

morning of February 12, 2010. During that conversation, Mr. Presiado reiterated the assertion that he had reached an agreement with Mr. Eberhart to the effect that Mr. Presiado's clients would have an additional 30 days from the date of the January 29, 2010 hearing to produce the discovery required by the Order. When I asked Mr. Presiado for the basis of his belief that he had reached such an agreement with Mr. Eberhart, Mr.
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Presiado told me that Mr. Eberhart was talking to all defense counsel as a group following the January 29 hearing when the concept of a 30-day timeline for compliance was discussed, and that Mr. Eberhart was looking at Mr. Presiado during this conversation. Mr. Presiado also stated to me that it was his understanding that this 30-day timeline ran from the date of the January 29 hearing, rather than the date of the Order. He further stated that it was unreasonable for eBay to move for sanctions because the Order does not provide a specific deadline for compliance. 15. Later in the day on February 12, 2010, I had another telephone conversation

with Patrick McClellan, counsel for KFC. During that conversation, Mr. McClellan stated that he was now taking the position, in order to be consistent with Mr. Presiado, that KFC would not produce the required discovery until March 1. Mr. McClellan also stated that he had been informed by Mr. Presiado of the purported agreement with Mr. Eberhart to a 30-day extension from the date of the January 29 hearing, and that any such agreement would apply equally to KFC. 16. Attached hereto as Exhibit 11 is a true and correct copy of the Joint Case

Management Statement, filed on January 9, 2009. 17. Attached hereto as Exhibit 12 is a true and correct copy of Exhibit 1 in

support of Kessler's Flying Circus's Notice of Motion and Motion to Dismiss Plaintiff's First Amended Complaint, filed on November 7, 2008. 18. Attached hereto as Exhibit 13 is a true and correct copy of the Compendium

of Exhibits in support of Brian Dunning, Briandunning.com, and Thunderwood Holdings, Inc.'s Motion to Dismiss Plaintiff's First Amended Complaint, filed on October 27, 2008. 19. Attached hereto as Exhibit 14 is a true and correct copy of invoices from

Rackspace US, Inc. to Briandunning.com, dated February 8, 2006 through August 5, 2009, and related customer agreements between Rackspace US, Inc. and Briandunning.com, bates numbered RS0001-0044.

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I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Signed on this 26th day of February, 2010 in San Francisco, California. ____/s/ Colleen M. Kennedy______ Colleen M. Kennedy

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