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

Filing 215

CASE MANAGEMENT STATEMENT filed by eBay Inc.. (Eberhart, David) (Filed on 6/4/2010)

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DAVID R. EBERHART (S.B. #195474) [e-mail] SHARON M. BUNZEL (S.B. #181609) [e-mail] NORA M. PUCKETT (S.B. #248743) [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: June 11, 2010 Time: 10:30 a.m. Judge: Hon. Jeremy Fogel

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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 undersigned 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: eBay continues to meet and confer with defendants' counsel regarding defendants' supplemental discovery responses. While substantial progress has been made, a few outstanding issues remain. In particular, the DPS Defendants have yet to provide eBay with a copy of their source code files in the manner in which they were kept in the ordinary course of business, including the file names and file structure for the source code. (For this type of code, file names are essential because operation of the code is often commenced through use of the file name.) eBay's review of the DPS Defendants' source code also has revealed that several types of associated files are missing from their production, including configuration files for the servers used by defendants and image files referenced in the code. The DPS Defendants also have failed to provide eBay with the supporting documents, including relevant attachments, associated with the tax returns that they have produced to eBay. As with the DPS Defendants' production, the source code produced by the Dunning Defendants is also missing several different types of files referenced in the code itself, including configuration files, image files, and source files. In addition, defendants Todd and Brian Dunning have failed to produce their individual tax returns to eBay,
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despite the fact that the production of those returns is not protected by the Fifth Amendment privilege. See Federal Savings & Loan Ins. v. Rodrigues, 717 F. Supp. 1424, 1425-27 (N.D. Cal. 1988). In the event that any meet-and-confer processes on these issues are unsuccessful, eBay anticipates that it may need to move to compel full compliance with the Court's January 12, 2010 order. 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 Shawn Hogan and Digital Point Solutions, Inc.'s (collectively "DPS Defendants'") Statement: No motions are currently pending before the Court. The DPS Defendants have commenced fact discovery, including the issuance of requests for production to Plaintiff and document subpoenas to non-parties Commission Junction and Benjamin Edelman. Benjamin Edelman is a professor at the Harvard Business School and has knowledge and information supporting the DPS Defendants' claims and defenses. Professor Edelman is now represented by Plaintiff's counsel. He has served objections and responses to the subpoena, and has produced some responsive documents. The objections and responses are improper and inappropriately purport to limit the scope of the requests. The DPS Defendants have met and conferred on these issues on numerous occasions but Professor Edelman has refused to produce any documents post-dating June of 2007. There is no basis for this arbitrary and self-imposed cutoff date, particularly given the broad scope of discovery under the Federal Rules. In addition, Professor Edelman has inappropriately designated the vast majority of the documents that have been produced as "attorneys' eyes only" under the Stipulated Protective Order. As such, the DPS Defendants will be filing a motion to compel on these issues. The DPS Defendants will also be filing a motion to compel as to the two requests for production served on Plaintiff to date. The requests were served on March 29 and April 6, 2010, respectively. Although two months have now gone by, Plaintiff has only
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produced the following: (1) documents that Plaintiff already produced well over a year ago in response to subpoenas issued by the Dunning Defendants in the Commission Junction state court action (to which the DPS Defendants were not parties); and (2) 73 pages of documents largely consisting of various User Agreements. Plaintiff still has not produced documents that are clearly responsive, including the documents identified in Plaintiff's initial disclosures and documents supporting the contentions of the SAC. Notwithstanding the Stipulated Protective Order in this case, Plaintiff has redacted the vast majority of the information contained in the limited documents that have been produced to date. In addition, as with Professor Edelman, Plaintiff has asserted that it will not produce any responsive documents post-dating June of 2007 (although it now appears that Plaintiff is selectively enforcing this policy). The DPS Defendants will move to compel as to these issues as well. Further, Plaintiff and the DPS Defendants are in the process of meeting and conferring regarding the use of search terms to facilitate the location of responsive electronic documents. Although Plaintiff developed a list of search terms well over a year ago in the context of responding to the Dunning Defendant subpoenas in the CJ action, Plaintiff did not raise the issue or provide the list to the DPS Defendants until six weeks after the requests for production were initially served. Plaintiff has not made any attempt to explain or justify this delay. The DPS Defendants are hopeful that these issues can be resolved without the need for judicial intervention but anticipate that motion practice may ultimately be necessary on this subject as well. 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
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separate trials as to each respective defendant group. Defendants Kessler's Flying Circus, Thunderwood Holdings, Inc., Brian Dunning, Brian Dunning.com, Todd Dunning and Dunning Enterprise, Inc.'s (collectively "NonDPS Defendants") Statement: No motions are currently pending before the Court. At this point, the Non-DPS Defendants anticipate filing dispositive motions upon conclusion of the pending criminal proceeding . As previously asserted, the Non-DPS Defendants are unable to adequately defend against the claims asserted by Plaintiff until the criminal proceeding has concluded. As to Plaintiff's claims regarding discovery, the Non-DPS Defendants have demonstrated to Plaintiff on several occasions that they are in full compliance with the discovery order of the Court. V. AMENDMENT OF PLEADINGS eBay's Statement: There have been no changes since the previous Joint Case Management Statement. DPS Defendants' 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. 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 also has attempted to meet and confer with the DPS Defendants' counsel
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regarding the DPS Defendants' requests for production. eBay has been working diligently to respond to the DPS Defendants' requests for production since they were first issued and has, to date, made two separate productions totaling approximately 27,000 pages. (Contrary to the DPS Defendants' claims, eBay has not improperly redacted information and has certainly not "redacted the vast majority of the information" in those more than 27,000 documents.) Furthermore, eBay carefully analyzed the requests propounded by the DPS Defendants, and proposed a list of nearly 100 relevant search terms which would be used to conduct a substantial review of eBay's electronically stored information. (In light of the DPS Defendants' requests, these search terms are a superset of the search terms that eBay used to respond to the Dunnings' requests in the Commission Junction state court action.) Despite eBay's meet and confer efforts, the DPS Defendants' counsel refused to agree to eBay's proposed list of search terms (1) even though the DPS Defendants' counsel agreed that the use of search terms was appropriate as a general matter; and (2) despite eBay's incorporation of all additional and/or revised search terms that the DPS Defendants proposed. Following the DPS Defendants' refusal to agree to search terms and in order to proceed with document review and production in a timely manner, eBay applied the aggregate list of search terms to its electronic database and is reviewing potentially responsive documents to produce to the DPS Defendants as soon as possible. In addition, eBay has collected and is producing non-electronic documents. As eBay has informed the DPS Defendants, eBay is working diligently in an attempt to produce all responsive documents as quickly as possible and has indicated that it will continue to produce documents on a rolling basis to the extent practicable. In light of the defendants' delays in the discovery process, eBay has proposed certain changes to the discovery schedule set forth in previous Joint Case Management Statements and proposes that the fact discovery cutoff be moved until March 4, 2011 and that all subsequent pretrial due dates be rescheduled accordingly. eBay's revised proposed discovery schedule is attached hereto as Exhibit A.

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DPS Defendants' Statement: The DPS Defendants have commenced fact discovery and, as noted above, will be filing motions to compel as to the Edelman subpoena and the requests for production served on Plaintiff. Based on the responses provided by Professor Edelman and Plaintiff to date, the DPS Defendants anticipate further lengthy discovery disputes in this case. Commission Junction has produced documents in response to the DPS Defendants' document subpoenas but additional meet-and-confer discussions are likely. The DPS Defendants' position is that fact and expert discovery should not close until July 2011 and December 2011, respectively. Additional proposed dates are set forth in Exhibit A hereto. The DPS Defendants are informed 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. Non-DPS Defendants' Statement: As previously asserted, the Non-DPS Defendants are unable to adequately defend against the claims asserted by Plaintiff until the criminal proceeding has concluded. The Non-DPS Defendants have not yet conducted facts discovery in this case due, in part, to the inability to obtain the records seized by the Government in connection with the pending criminal proceeding. Despite demand, the Government refuses to return (or even image a copy of) the seized records. The Non-DPS Defendants generally agree with the discovery timeline proposed by the DPS Defendants at Exhibit "A," assuming the criminal investigation is concluded in short order. 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.
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XI.

SETTLEMENT AND ADR eBay's Statement: Pursuant to this Court's referral of the case to mediation, the parties participated in

a mediation session with appointed mediator Beth Parker on April 27, 2010. The mediation session was unsuccessful. DPS Defendants' Statement: The parties attended a mediation session with Beth Parker on April 27, 2010. As reflected in Docket File No. 211, the case did not settle as to any parties. While the DPS Defendants remain open to ADR options, the process has not been productive thus far. Non-DPS Defendants' Statement: The parties attended a mediation session with Beth Parker on April 27, 2010. The Non-DPS Defendants remain open further ADR procedures and/or options. 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. eBay has proposed certain changes to that schedule since the previous Joint Case Management Statement and proposes that the fact discovery cutoff be moved until March 4, 2011 and that all subsequent pretrial due dates be rescheduled accordingly. XVII. TRIAL There have been no changes since the previous Joint Case Management Statement.

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XVIII.

DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS

There have been no changes since the previous Joint Case Management Statement. Dated: June 4, 2010 DAVID R. EBERHART SHARON M. BUNZEL NORA M. PUCKETT O'MELVENY & MYERS LLP

By: /s/ David R. Eberhart David R. Eberhart Attorneys for Plaintiff eBay Inc. Dated: June 4, 2010 SEYAMACK KOURETCHIAN COAST LAW GROUP, LLP

By: /s/ Ross Campbell Ross Campbell Attorneys for Defendants Digital Point Solutions, Inc. and Shawn Hogan Dated: June 4, 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

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Dated: June 4, 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: June 4, 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 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 are 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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SF1:795705.5

EXHIBIT A Event Fact discovery closes Last day for expert reports on merits eBay's Proposed Dates March 4, 2011 April 22, 2011 DPS Defendants' and NonDPS Defendants' Proposed Dates July 29, 2011 September 23, 2011 October 21, 2011 November 18, 2011 December 16, 2011 January 27, 2012 March 2, 2012

Last day for May 13, 2011 depositions of experts Last day for responsive May 27, 2011 expert reports Close of expert June 24, 2011 discovery Last day to file dispositive motions Oppositions to dispositive motions due July 29, 2011 September 2, 2011

Reply briefs in support September 23, 2011 of dispositive motions due Hearing on dispositive motions Required Meeting Prior to Pretrial Conference Pretrial Conference Statement Pretrial Conference Trial October 14, 2011 November 29, 2011

March 23, 2012

April 13, 2012 June 4, 2012

December 5, 2011 December 19, 2011 January 30, 2012

June 11, 2012 June 25, 2012 August 6, 2012

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