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

Filing 204

CASE MANAGEMENT STATEMENT JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER filed by eBay Inc.. (Kennedy, Colleen) (Filed on 3/26/2010)

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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: April 2, 2010 Time: 9:00 a.m. Judge: Hon. Jeremy Fogel

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

This Case Management Statement and Proposed Order is jointly submitted by plaintiff eBay Inc. and defendants Shawn Hogan and Digital Point Solutions, Inc. (the "DPS Defendants"), and those parties request that the Court adopt the Proposed Order as its Case Management Order in this case. Those parties, through undersigned counsel, have met and conferred on the matters contained herein. eBay was unsuccessful in its attempts to contact the remaining defendants to the above-entitled action prior to the filing of this Case Management Statement and Proposed Order. 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: Within the last several weeks, eBay has received supplemental discovery responses, including document productions, from defendants Shawn Hogan, Digital Point Solutions, Inc., Dunning Enterprise, Inc., Brian Dunning, Thunderwood Holdings, Inc., BrianDunning.com and Kessler's Flying Circus in response to the Court's January 12, 2010 order granting eBay's motions to compel. eBay continues to analyze those productions and has begun to pursue meet-and-confer discussions with defendants' counsel, but, in the event that any meet-and-confer processes are unsuccessful, eBay anticipates that it may need to: (i) move to challenge some of the confidentiality designations made by the defendants pursuant to the Stipulated Protective Order; and/or (ii) move to compel full compliance with the Court's January 12, 2010 order. eBay is also continuing to meet and confer with defendants regarding their responses to the requests in eBay's First Set of Requests for Production that seek information regarding defendants' financial condition, including requests for defendants'
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financial statements and tax returns. Defendants have now produced at least some of this information as part of their recent productions, but defendant DPS, Inc. has yet to produce its tax returns to eBay. eBay may need to move to compel the production of this information in the event that an agreement cannot 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. DPS Defendants' Statement: No motions are currently pending before the Court. Defendant Digital Point Solutions, Inc. has served a document subpoena on one Benjamin Edelman, a non-party witness believed to have knowledge and information supporting the DPS Defendants' claims and defenses. Benjamin Edelman is a professor at the Harvard Business School. Professor Edelman is now represented by Plaintiff's counsel and has served objections and responses to the subpoena. The objections and responses are improper and inappropriately purport to limit the scope of the requests. Defense counsel has commenced the meet and confer process but anticipates that it may be necessary to initiate proceedings in the District of Massachusetts to compel responses from Professor Edelman. The DPS Defendants further anticipate filing a motion for summary judgment 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.

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V.

AMENDMENT OF PLEADINGS eBay's Statement: On March 19, 2010, defendants Kessler's Flying Circus, Thunderwood Holdings,

Inc. and BrianDunning.com filed a First Amended Answer to eBay's Second Amended Complaint ("SAC"), in response to the Court's February 25, 2010 order granting eBay's motion to strike those defendants' previously-filed answer with leave to amend. The Amended Answer did not provide responses to certain allegations in the SAC. eBay intends to meet and confer with these defendants on this issue and this may be the subject of future motion practice. eBay does not anticipate the need for any further amendments to the SAC at this time, but if discovery shows that defendants used additional entities to effectuate their schemes, and if the currently-named defendants did not succeed to the assets and liabilities of those entities, eBay may seek leave to amend its complaint to conform to the evidence and to substitute those entities for current Doe defendants. DPS Defendants' Statement: There have been no changes since the previous Joint Case Management Statement. VI. 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: eBay is proceeding with full fact discovery, and continues to work with defendants toward their compliance with previously-issued discovery requests, as noted above. eBay continues to propose the 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.
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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 XI. X.

DPS Defendants' Statement: As noted in the parties' previous joint statement, the DPS Defendants have produced documents and provided supplemental discovery responses pursuant to the Court's January 12, 2010 discovery order. In addition, the DPS Defendants have commenced fact discovery as noted above and intend to propound additional discovery prior to the upcoming Case Management Conference. As discussed below, mediation has been scheduled for April 27, 2010. The DPS Defendants' position is that discovery dates should not be set until after the parties have had an opportunity to mediate. To the extent dates are set at the Case Management Conference, fact and expert discovery should not close until May 2011 and August 2011, respectively. The DPS Defendants' understanding is that the criminal investigation remains active; the foregoing dates may need to be further extended accordingly. 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. RELIEF There have been no changes since the previous Joint Case Management Statement. SETTLEMENT AND ADR eBay's Statement: Pursuant to this Court's referral of the case to mediation at the last Case Management Conference on February 26, 2010, the parties have since participated in a conference call with the ADR staff and Beth Parker has been re-appointed as the mediator for this case. A mediation session has been scheduled for April 27, 2010 and a further conference call with Ms. Parker has been set for April 12, 2010 to discuss the mediation process. DPS Defendants' Statement:
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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 XV.

As further discussed in Plaintiff's statement, mediation has been scheduled for April 27, 2010 before Beth Parker. 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. 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. Dated: March 26, 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.

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Dated: March 26, 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

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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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