eBay Inc. v. Digital Point Solutions, Inc. et al
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. 16
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"hAO88 (Rev 12/07) Subnoena In a Ctvll Case
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Issued by the
Central District of California
Digital Point Solutions, Inc., et al.
SUBPOENA IN A CIVIL CASE
Case Number: Case No. CV-08-4052 JF
Northern District of California
TO: ERNSTER LAW OFFICES, P.C.
70 South Lake Avenue, Suite 750, Pasadena, CA 91 101
17 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
DATE AND TIME
Cl 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
DATE AND TIME
YOU ARE COMMANDED to produce and pennit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):
See Attachment A
DATE AND TIME
O'Melveny & Myers LLP, 400 South Hope Street, Los Angeles, CA 90071-2899
May 18,2009, 10:OO a.m.
DATE AND TIME
17 YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
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 Embarcadero Center, 28th Floor, San Francisco, CA 94 111 (41 5-984-8700) O'Melveny & Myers LLP, TWO
(See Federal Rule of CIVII 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
A 0 8 8 (Rev. 17 0 i 7
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PROOF OF SERVICE
SERVED ON (PRINT NAME) MANNER OF SERVICE
SERVED BY (PRINT NAME)
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) PROTECTINGPERSON A SUWECT A SUBPOENA. TO
( I ) Avoiding Undue Burden or Expense; Sanctions. A party or attorney respons~ble for issuing and sewlng a subpoena must take reasonable steps to avoid imposlng undue burden or expense on a person subject to the subpoena. The issurng court must enforce this duty and Impose an appropriate sanction -which may include lost earnmgs and reasonable attorney's fees - on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Plppearance Not Required. A person commanded to produce documents, electron~cally storedinformation, or tang~ble things, or to perm~t inspection of premises, need the not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or mal. (B) Objections. A person commanded to produce documents or tangible things or to permit ~nspect~on serve on the party or attorney des~gnatedin the subpoena a wntten may objectton to ~nspecting, copylng, teshng or sampling any or all of the materials or to inspecting thepremlses-or to produc~ng elechon~cally stored informahon in the form or forms requested. The objection must be sewed before the earlier of the time spec~fied compliance or 14 days for after the subpoena is sewed. If an objection 1s made, the following ~ l e apply: s (i) At any tlme, on notice to the commanded person, the servlng party may move the issuing court for an order compelling production or Inspection. ( ~ iThese acts may be requ~red ) only as directed in the order, and the order must protect a person who IS neither a party nor a party's officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the Issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply: (li) requires a person who is ne~ther party nor a party's officer to have1 more a than I00 miles from where that person resides, is employed, or regularly hansacts business in person -except that, subject to Rule 451c)(3)(B)(iii). the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; (ili) requlres disclosure of privileged or other protected matter, if no exception or waiver appl~es; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a suhpoena, the issulng court may, on motion, quash or modify the suhpoena ~fit requires: (i) disclosing a trade secret or other confidential research, development, or co~nmercialinformation; expert's opinlon or information that does not (ii) disclosing an u ~ e t a i n e d describe speclfic occurrences in dlspute and results from the expert's study that was not requested by a party; or ( ~ i i a person who 1s neither a party nor a party's ofticer to incur substantial ) expense to travel more than 100 m ~ l e s attend tnal to (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena. order appearance or product~on under specified conditions ~fthe serving party:
(i) shows a substanhal need forthe testimony or material that cannot be otherwise met w~thout undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (d) DUTIES IN RESPONDING TO 4 SUBPOEN.4. ( I ) Producing Documents or Electronically Stored lnformation. These procedures apply to producing documents or electronically stored information: (At Documents. A penon responding to a subpoena to produce documents must produce them as they are kept in the ord~nary 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 spec~fy form for producing electron~callystored information, the person a responding must produce ~t in a form or forms In whlch it is ordinanly maintained or in a reasonably usable form or forms. (C) Electronically Stored tnformat~onProduced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored lnformation. The person responding need not provide discovery of electronically stored information from sources that the person ~dent~fies as not reasonably access~ble because of undue burden 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 burden or cost. Ifthat showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. subpoenaed information under a (A) lnformation Withheld. A person w~thholding claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the clam; and ( ~ idescribe the nature of the withheld documents, communications, or ) will tangible things in amanner that, without revealing ~nformationitselfprivilegedorprotected, enable the partles to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the mformation of the claim and the b a s s for it. After being nohfied, a party must promptly return, sequester, or destroy the specified informahon and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the lnformation to the court under seal for a determination of the claim. The person who produced the information must preserve the information unhl the claim is resolved.
The lssurng court may hold in contempt a person who, hav~ng been senred, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(i1).
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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. "You" shall mean Ernster Law Offices, P.C., John H. Ernster, Esq., Phil J.
Montoya, Jr., Esq., and any other partners, employees, agents, attorneys, consultants, representatives or other persons acting or purporting to act as counsel for Commission Junction, Inc. in the CJ Litigation, as defined below. 2. "Commission Junction" 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.
"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
"Communication" shall mean conversations, correspondence, telephone
calls, meetings, or any transmission of information from one person to one or more persons.
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"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.
"Defendants" shall mean any, each, all, or any combination of
Thunderwood Holdings, Inc., Brian Dunning, BrianDunning.com, Kessler's Flying Circus, Todd Dunning, Dunning Enterprise, Inc., Shawn Hogan and Digital Point Solutions, Inc., as defined below.
"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.
"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.
"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. 10. "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,
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employees, representatives, attorneys, or other persons or entities acting on its behalf, collectively, in any combination, or singly, whichever is broader. 11. "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 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.
"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.
"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. 14. "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.
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"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. 16. "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 08-00101025, including, but not limited to, investigations of Defendants to determine which parties to name as defendants in Commission Junction, Itzc. v. Thunderwood Holdings, Inc., et al. 17. "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. 18. "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. 19. This subpoena calls for the production of all responsive Documents that are
within the possession, custody or control of You. 20. Documents in the custody or possession of your counsel are deemed to be in
the custody, possession or control of You. 21. 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. 22. 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
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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. 23. 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 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. 24. If You contend that any discovery request is objectionable in whole or in
part, You shall state with particularity each objection, the basis for it, and the categories of information and documents to which the objections applies, and You shall respond to the document request insofar as it is not deemed objectionable. 25. If You find the meaning of any term in any discovery request unclear, You
shall assume a reasonable meaning, state what the assumed meaning is, and respond to the request according to the assumed meaning. 26. The words "and and "or" shall be construed in the conjunctive or
disjunctive, whichever makes the request more inclusive. 27. 28. every." 29. 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).
lU3OUESTS FOR PRODUCTION
REQUEST NO. 1:
All Documents Relating to the settlement of the CJ Litigation, including Communications between or among You, Commission Junction and any of Defendants regarding settlement, proposed or draft settlement agreements or portions of such
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agreements, and any other Documents Relating to the negotiation, drafting and execution of the Settlement Agreement.
REOUEST NO. 2:
All Documents Relating to any termination of a contractual or other business relationship between Commission Junction and any of Defendants, including any termination of an agreement entered into between Commission Junction and any of Defendants referred to as a Publisher Service Agreement.
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