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

Filing 91

Declaration of Colleen M. Kennedy in Support of 90 Memorandum in Opposition,, DECLARATION OF COLLEEN M. KENNEDY IN SUPPORT OF EBAY INC.S CONSOLIDATED OPPOSITION TO (1) THE MOTIONS TO DISMISS THE SECOND AMENDED COMPLAINT BY DEFENDANTS DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, THUNDERWOOD HOLDINGS, INC., KESSLERS FLYING CIRCUS, BRIAN DUNNING, BRIANDUNNING.COM, TODD DUNNING, AND DUNNING ENTERPRISE, INC. ; AND (2) THE MOTIONS TO TRANSFER BY DEFENDANTS DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, TODD DUNNING AND DUNNING ENTERPRISE, INC. 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, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34)(Related document(s) 90 ) (Eberhart, David) (Filed on 6/5/2009)

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

Doc. 91 Att. 15

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EXHIBIT 16

Dockets.Justia.com

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%A088 (Rev. 12/07) Subpoena in a Civil Case

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Issued by the

UNITED STATES DISTRICT COURT
Central District of California
eBay Inc.

SUBPOENA IN A CIVIL CASE V.
Digital Point Solutions, Inc., et al.

Case Number:' Case No. CV-08-4052 JF
Northern District of California

TO: COMMISSION JUNCTION, INC.
C/ONational Registered Agents, Inc., 2875 Michelle Drive, Suite 100, Twine, CA 92606

YOU ARE COMMANDED to appear in the United States District court at the place, date, and time specified below to testify in the above case.
PLACE OF TESTIMONY COURTROOM

I

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
PLACE OF DEPOSITION I DATE AND TIME

7
DATE AND TIME

YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):
See Attachment A

PLACE

DATE AND TIME

O'Melveny & Myers LLP, 400 South Hope Street, Los Angeles, CA 90071-2899

May 18, 2009, 10:OO a.m.

YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
PREMISES DATE AND TIME

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rule of Civil Procedure 30(b)(6).

Attorney for Plaintiff, Colleen M. Kennedy O'Melveny & Myers LLP, Two Embarcadero Center, 28th Floor, San Francisco, CA 941 11 (415-984-8700)
(See Federal Rule o f Clvtl Procedure 45 (c), (d), and (e), on next page)

' If action is pending in district other than district of issuance, state district under case number.

lww

Arnerlcar~Legalhet. Inc ForrnsWorkflow corn

I

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PROOF OF SERVICE
DATE PLACE

SERVED
SERVED ON (PRINT NAME) MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER I declare under penalty ofperjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on
DATE SIGNATURE OF SERVER

ADDRESS OF SERVER

Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1,2007:
(c) PROTECTING A PERSONSt!lECT TO A SUBPOENA.

( I ) Avotding Undue Burden or Expense; Sanctions. A party or attorney responsible for tssulng and servtng a suhpoena must take reasonable steps to avotd impostng undue burden or expense on a person subject to the subpoena. The Issuing court must enforce this duty and lmpose an appropriate sanction which may include lost eamtngs and reasonable attorney's fees - on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Requtred. A person commanded to produce documents, electronically stored information. or tangiblethings, or to permit the inspecttonofpremises. need not appear in person at the place of production or mspection unless also commanded to appear for a deposttion, hearing, or tnal. (B) Objechons. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated In the suhpoena a written objection to inspecting. copying, testing or sampling any or all of the matenals or to inspecting the premtses- orto producing electronically stored information In the form or forms requested. The objection must he served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objectton ts made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (ti) These acts may be required only as dtrected In the order, and the order must protect a person who IS netther a party nor a party's officer from slgntficant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On tlmely motion, the issuing coun must quash or modtfy a subpoena that: (ii fails to allow a reasonable time to comply: (it) requires a person who IS neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts bustness in person -except that. suhject to Rule 45(c)(3)(B)(iii). the person may be commanded to attend a ma1 by traveltng from any such place withtn the state where the tnal is held; (tit) requires disclosure of privileged or other protected matter, if no exception or watver applies; or fib) subjects a person to undue burden. (B) When Permitted. To protect a person suhject to or affected by a subpoena, the issuing court may, on motion. quash or modify the subpoena tfit requires: (i) disclostng a trade secret or other confidential research, development, or commercial information; (ii) disclostng an unretained expert's oplnton or tnformatlon that does not describe specific occurrences in dtspute and results from the expert's study that was not requested by a party: or (iii) a person who is netther a party nor a party's officer to incur substanhal expense to travel more than 100 m~les attend trial to (C) Specifying Conditions as an Alternative. In the circumstances described in Rule J5(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under spectfied conditions if the servtng party:

(I)shows asubstantial need for the testimony ormaterial that cannot be otherwtse met wtthout undue hardship; and (ti) ensures that the subpoenaed person will be reasonably compensated.

(d) DI:TIESIN RESPONDING TO A SUBPOENA.
(1) Producing Documents or Electronically Stomd Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpeena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in whtch it is ordinarily matntatned or in a reasonahly usable form or forms. (C) Electronically Stored Informatton Produced In Only One Form. The person responding need not produce the same electrontcally stored information in more than one form. (Dj lnaccess~ble Elechonically Stored Information. The person responding need not provide discovery of electronically stored information tiom sources that the person identifies as not reasonahly accessible because of undue bwdm or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue hurden or cost. If that showtng IS made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, constdering the limttations of Rule Zqb)(Z)(C). The court may specify condittons for the discovery. (2) Clatming Privilege or Protection. (Aj lnformation Withheld. A person withholding subpoenaed tnformation under a claim that it IS privtleged or suhject to protectton as mal-preparation material must: (i) expressly make the claim: and (it) describe the nature of the withheld documents. cominunicatlons, or tangible things tn amanner that, without revealing information itselfpnvileged or protected, will enable the parhes to assess the claim. (B) lnformation Produced. If information produced in response to a subpoena is subject to a claim of privtlege or of protection as tnal-preparation material, the person maktng the claim may nottfy any party that received the lnformation of the claim and the basis for tt. After being notified, a pruty must promptly return, sequester, or destroy the spectfied information and any copies tt has: must not use or disclose the informahon unttl the claim is resolved; must take reasonable steps to reheve the information ~fthe party disclosed it before being notified: and may promptly present the information to the coun under seal for a determtnation of the claitn. The person who produced the lnformation must preserve the information unttl the claim is resolved. (e) CONTEMPT. The issuing court may hold in contempt a person who. havtng been served, fails without adequate excuse to ohey the subpoena. A nonparty's failure to ohey must be excused tf the suhpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule JS(cl(3)(A)(ii).

I~mencan LeaalNet. Inc.

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ATTACHMENT A DEFINITIONS AND INSTRUCTIONS
The following definitions and instructions are to be considered applicable with respect to each request for production of documents contained herein: 1. "Commission Junction" or "You" shall mean commission Junction, Inc.

and any and all parent organizations, divisions, subdivisions, departments, affiliates, parents, partners, holding companies, divisions, departments, operating units, their present and former directors, officers, employees, agents, attorneys, consultants, and representatives, and all Persons either acting or purporting to act on behalf of Commission Junction, Inc.

2.

"Document" is used in the broadest possible sense and shall mean, without

limitation, every writing or record of every type and description that is in your possession, custody, or control, whether an original or copy, in whatever form, and includes, but is not limited to, correspondence, files, drafts, term sheets, transcripts, minutes, memoranda, telegrams, telexes, stenographic and handwritten notes, studies, analyses, publications, books, pamphlets, pictures, photographs, films, video tapes, audio tapes, purchase orders, invoices, computer disks and printouts, drawings, diagrams, blueprints, affidavits, expense records, financial reports, journals, logs, diaries, calendars, voice recordings, tapes, maps, reports, surveys, charts, numbers or statistical computations, and every draft or copy thereof, whether signed or unsigned

3.

"Communication" shall mean conversations, correspondence, telephone

calls, meetings, or any transmission of information from one person to one or more persons. 4. "Relate to," "Related to" or "Relating to" shall mean, without limitation,

constituting, mentioning, referring to, describing, summarizing, evidencing, listing, relevant to, demonstrating, analyzing, tending to prove or disprove, or explaining.

5.

"Defendants" shall mean any, each, all, or any combination of

Thunderwood Holdings, Inc., Brian Dunning, BrianDunning.com, Kessler's Flying
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Circus, Todd Dunning, Dunning Enterprise, Inc., Shawn Hogan and Digital Point Solutions, Inc., as defined below.

6.

"Thunderwood Holdings, Inc." shall mean, include, or refer to the entity

known or doing business as Thunderwood Holdings, Inc. and each of its successor, predecessor, and related entities, including, without limitation, its subsidiaries, parent corporations, divisions, assigns, and any officers, directors, agents, employees, representatives, attorneys, or other Persons or entities acting on its behalf, collectively, in any combination, or singly, whichever is broader.

7.

"Brian Dunning" shall mean the Person known or doing business as Brian

Dunning and his employees, agents, attorneys, consultants, and representatives, any fictitious business names operated by Brian Dunning or any pseudonyms used by Brian Dunning, as well as any and all entities (business, legal or otherwise) owned, controlled or used by Brian Dunning for any Affiliate Marketing Program or to interact with eBay in any way, and all persons or entities acting on his behalf. collectively, in any combination, or singly, whichever is broader.

8.

"BrianDunning.com" shall mean BrianDunning.com and each of its

successor, predecessor, and related entities, including, without limitation, its subsidiaries, parent corporations, divisions, assigns, and any officers, directors, agents, employees, representatives, attorneys, or other persons or entities acting on its behalf, collectively, in any combination, or singly, whichever is broader.

9.

"Kessler's Flying Circus, Inc." shall mean Kessler's Flying Circus, Inc., and

each of its successor, predecessor, and related entities, including, without limitation, its subsidiaries, parent corporations, divisions, assigns, and any officers, directors, agents, employees, representatives, attorneys, or other persons or entities acting on its behalf, collectively, in any combination, or singly, whichever is broader.

10.

"Todd Dunning" shall mean the Person known or doing business as Todd

Dunning and his employees, agents, attorneys, consultants, and representatives, any fictitious business names operated by Todd Dunning or any pseudonyms used by Todd

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Dunning, as well as any and all entities (business, legal or otherwise) owned, controlled or used by Todd Dunning for any Affiliate Marketing Program or to interact with eBay in any way, and all persons or entities acting on his behalf, collectively, in any combination, or singly, whichever is broader. 11. "Dunning Enterprise, Inc." shall mean Dunning Enterprise, Inc., and each of

its successor, predecessor, and related entities, including, without limitation, its subsidiaries, parent corporations, divisions, assigns, and any officers, directors, agents, employees, representatives, attorneys, or other persons or entities acting on its behalf, collectively, in any combination, or singly, whichever is broader.

12.

"Digital Point Solutions, Inc." shall mean Digital Point Solutions, Inc., and

each of its successor, predecessor, and related entities, including, without limitation, its subsidiaries, parent corporations, divisions, assigns, and any officers, directors, agents, employees, representatives, attorneys, or other persons or entities acting on its behalf, collectively, in any combination, or singly, whichever is broader.

13.

"Shawn Hogan" shall mean the Person known or doing business as Shawn

Hogan and his employees, agents, attorneys, consultants, and representatives, any fictitious business names operated by Shawn Hogan or any pseudonyms used by Shawn Hogan, as well as any and all entities (business, legal or otherwise) owned, controlled or used by Shawn Hogan for any Affiliate Marketing Program or to interact with eBay in any way, and all persons or entities acting on his behalf, collectively, in any combination, or singly, whichever is broader. 14. "Third Parties" shall mean any Person, as defined below, not party to the

Litigation, as defined below, including but not limited to, law enforcement investigators, federal or state attorneys, experts, and lay non-party witnesses. 15. "CJ Litigation" shall mean all investigation, preparation and actions taken in

and related to the case of Commission Junction, Inc. v. Thunderwood Holdings, Inc., et al. in the Orange County Superior Court of California, Case Number 08-00 101025,

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including, but not limited to, investigations of Defendants to determine which parties to name as defendants in Commission Junction, Inc. v. Thunderwood Holdings, Inc., et al. 16. "Settlement Agreement" shall mean the "Settlement and Mutual General

Release Agreement" included in the "Compendium of Exhibits in Support of Motion to Dismiss Plaintiff's Second Amended Complaint by Defendants Thunderwood Holdings, Inc., Brian Dunning, and BrianDunning.com" and attached as Exhibit 1 hereto. 1'7. "Person" or "Persons" shall mean any natural person, proprietorship, public

or private corporation, partnership, joint venture, trust, association, company, firm, government or government entity (including any government agency, board, authority, commission, or political subdivision or department thereof), or any other form of business or legal entity, organization or arrangement, group or association.

18.

This subpoena calls for the production of all responsive Documents that are

within the possession, custody or control of Commission Junction. 19. Documents in the custody or possession of Commission Junction's counsel

are deemed to be in the custody, possession or control of Commission Junction. 20. All documents requested shall be produced in the same file or organizational

environment in which they are maintained. For example, a document that is part of a file, docket or other grouping should be physically produced together with all other documents from said file, docket or other grouping responsive to said request, in the same order or manner of arrangement as the original. 21. In the event that any document responsive to the following document

requests has been destroyed, otherwise disposed of, or no longer in the party's control or custody, that document is to be identified by author, addressee, date, subject matter, number of pages, attachments or appendices, all persons to whom it was distributed, shown or explained, date and manner of destruction or other disposition, and persons destroying or disposing of the document. 22. All documents or information not produced in response to these requests by

reason of a claim of privilege or otherwise, shall be included in a log that identifies with
-4-

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respect to each document or information, the date, author, recipient, copyees, subject matter, and the specific grounds for withholding the document or information from production. 23. If Commission Junction contends that any discovery request is objectionable

in whole or in part, Commission Junction shall state with particularity each objection, the basis for it, and the categories of information and documents to which the objections applies, and Commission Junction shall respond to the document request insofar as it is not deemed objectionable. 24. If Commission Junction finds the meaning of any term in any discovery

request unclear, Commission Junction shall assume a reasonable meaning, state what the assumed meaning is, and respond to the request according to the assumed meaning.

25.

The words "and" and "or" shall be construed in the conjunctive or

disjunctive, whichever makes the request more inclusive. 26. 27. every." 28. These requests shall be deemed continuing so as to require further and The term "including" means "including, but not limited to." As used herein, "all," "any," "each," or "every" means "all, each and

supplemental production in accordance with Federal Rule of Civil Procedure 26(e).
REQUESTS FOR PRODUCTION

REQUEST NO. 1:
All Documents Relating to the settlement of the CJ Litigation, including Communications between You and any of Defendants regarding settlement, proposed or draft settlement agreements or portions of such agreements, and any other Documents Relating to the negotiation, drafting and execution of the Settlement Agreement.

IUEQUEST NO. 2:
All Documents Relating to any termination of a contractual or other business relationship between You and any of Defendants, including any termination of an

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between You and any of Defendants referred to as a Publisher

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EXHIBIT 1

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