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. 20

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EXHIBIT 21

Dockets.Justia.com

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David I<. Eberl~art (S.B. # I 95474) - [e-mail] Sharon M. Bunzel (S.B. #181609> - [e-mail] Colleen M. Kennedy (S.B. #227 107) - [e-mail] O'MELVENY & MYERS LLP Two Einbarcadero Center, 28th Floor San 12rancisco,CA 94 1 1 1-3305 Telephone: [phone] Facs~mile: (4 15) 984-870 1 Attorneys for Plaintiff eBay Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

EBAY INC., Plaintiff.

Case No. G 08-04052 JF

PLAINTIFF EBAY INC.'S INITIAL DISCLOSURES PURSUANT TO RULE 26

DIGITAI, POIN'T SOLUTIONS, INC., SHAWN I-IOGRN, KESSLER'S F1,YING CIRCUS, TI-IlJNDERWOOD FIOLDINGS, ING., TODD DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, 13RIANDUNNING.COM, and DOES 120. Defendants.

Plaintiff eBay Inc. ("eBayV) hereby makes the following initial disclosures of inforination pursuant to Federal Rule of Civil Procedure 26(a)(l). These disclosures are based on information reasonably available to eBay as of January 8,2009. eBay's investigation of the facts relating to this action is ongoing, and the following disclosures are inade without pre-judice to eBay's right, at any time up to and including the time of trial and consistent with the Federal Rules of Civil Procedure, to suppleinent these disclosures as additional information becoines known to it. By inaking these disclosures of inforination, eBay does not waive, but expressly preserves, any and all objections,
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claiins of privilege, andlor work product protections. A. Potential Witnesses Pursuant to Fed. R. Civ. P. 26(a)(l)(A)(i), eBay hereby discloses the following individuals likely to have discoverable information that eBay inay use to support its claiins or defenses, unless solely for impeachment. eBay has in good faith listed the general subject matters about which each witness likely has knowledge, but this general description does not liinit the inforination that each witness inay provide for use in this

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suppleiment these disclosures pursuant to 11 action. eRay shall necessary. The potential witnesses at thisFederal Rule of Civil Proccdurc 26(e) if time are:

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Individual Ackley, Matthew

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Address & Phone Number c/o O'Melveny & Myers, LLP Two Einbarcadero Center, 28th Floor San Francisco, CA 941 1 1 (4 15) 984-8700
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Subject of the Information ~ ~ ~investik ation ~ g

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and analysis of Defendants' fraud Background, investigation nd analysis of Defendants'
u

Kim, Christine

Two Einbarcadero Center, 28th

Laguna, Jorge

Two Einbarcadero Center, 28th

Background, investigation

Floor San Francisco, CA 94 1 1 1 (4 15) 984-8700

and analysis of Defendants' fraud

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C/OO'Melveny & Myers, LLP Two Elnbarcadero Center, 28th Floor San Francisco, CA 94 111 (4 15) 984-8700 C/OO'Melveny & Myers, LLP Two Einbarcadero Center, 28th Floor San I : (415)
1 ,

Background, investigation and analysis of Defendants' fraud Background, investigation lid analysis of Defendants'
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B.

Documents Pursuant to Fed. R. Civ. P. 26(a)(l)(A)(ii), and based upon a good hith and

reasonable investigation of the allegations in this case, eBay provides the following description by category of the docuinents in its possession, control, or custody that inay be used to support its claims or defenses in this action, unless solely for impeachment. eBay shall supple~nent disclosure pursuant to Fed. R. Civ. P. 26(e) if necessary. The this categories of documents are:

Location Relevant documents described are located at eBay's various locations

Description - Agreeinents regarding Defendants' access to eBay's site
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- Documents reflecting payinents made to
Defendants

- Docuinents concerning the discovery and
investigation of Defendants' fraudulent activities

- Docuinents concerning the damages
suffered by eBay as a result of Defendants' fraudulent activities

- Docurnents concerning Defendants' effort
to avoid eBay's detection of their fraudulent activities
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C.

Damages

Pursuant to Federal Rule of Civil Procedure 26(a)(l)(A)(iii), eBay states that it seeks dainages in the following categories: 1. Coinpensatory dainages according to proof at trial, to be determined by paid calculating, inter alia, the coi~~inissions to Defendants for Revenue Actions that resulted from Defendants' cookie stuffing schemes; 2. Losses and damage to eBay pursuant to 18 U.S.C. 5 1030, including but not limited to econoinic losses caused by any impairment of eBay's computer networks or data, or any costs to eBay resulting froin investigating, responding to and remedying Defendants' unlawful conduct;
3. Disgorgeinent of ill-gotten gains and restitution to eBay of the funds by which

Defendants have been unjustly enriched, to be determined by calculating, inter alia, the coininissions paid to Defendants for Revenue Actions that resulted fioin Defendants' cookie stuffing schemes; 4. Statutory treble dainages pursuant to 18 U.S.C. 5 1964 against Defendants Shawn I Iogan, Brian Dunning and Todd Dunning;

5 . Punitive damages according to proof at trial; 6. Attorneys' fees and costs pursuant to 18 U.S.C. 5 1964 against Defendants
Shawn Hogan, Brian Dunning and Todd Dunning

7. Pre-judgment and post-judgment interest.
eBay will not be able to state with specificity the amount of these damages, nor provide a computation thereof, until it has conducted additional discovery and investigation. In addition, the specification and computation of eBay's damages may be the subject of expert testimony that will be disclosed in accordance with the FRCP, L.R., and Orders of the Court, and not otherwise.
D. Insurance Agreements

Not applicable.

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Dated: January

DAVID R. EBERHART SI-IARON M. BUNZEL COLLEEN M. KENNEDY O'MELVENY & MYERS LLP

Attorneys for P1air-ztiJ-f eBay 11ic.
'5628.3

EBAY'S INITIAL DISCLOSURES CASE NO. C 08-04052 JF