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. 22

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EXHIBIT 23

Dockets.Justia.com

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RONALD RUS, #67369 [e-mail] LEO J. PRESIADO, #I66721 [e-mail] RUS, MILIBAND & SMITH A Professional Corporation 221 1 Michelson Drive, Seventh Floor Irvine, California 92612 Telephone: [phone] Facsimile: (949) 252- 1514 Attorneys for Defendants THUNDERWOOD HOLDINGS, INC., BRIAN DUNNING, and BRIANDUNNING.COM STEWARD H. FOREMAN, #61149 [e-mail] DANIEL T. BERNHARD, # 104229 bernhardafreelandlaw .corn FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Francisco, California 94 105 Telephone: [phone] Facsimile: (4 15) 495-4332 Attorneys for Defendants, TODD DUNNING AND DUNNING ENTERPRISES, INC. PATRICK K. McCLELLAN, #077352 [e-mail] LAW OFFICES OF PATRICK K. McCLELLAN 221 1 Michelson Drive, Suite 700 Irvine, California 92612 Telephone: [phone] Facsimile: [phone] Attorney for Defendant, KESSLER'S FLYING CIRCUS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA EBAY INC., Plaintiff,
VS.

SAN JOSE DIVISION ) CASE NO. CV-08-4052 JF
)

1

) ) ) DIGITAL POINT SOLUTIONS, INC .; ) SHAWN HOGAN; KESSLER'S FLYING ) CIRCUS; THUNDERWOOD HOLDINGS, ) INC. ; TODD DUNNING; DUNNING 1 ENTERPRISES, INC. ; BRIAN DUNNING; ) BRIANDUNNING.COM; and DOES 1-20, )
,

CONSOLIDATED INITIAL DISCLOSURES OF DEFENDANTS BRIAN DUNNING, BRIANDUNNING.COM, THUNDERWOOD HOLDINGS, INC., TODD DUNNING, DUNNING ENTERPRISES, INC., AND KESSLER'S FLYING CIRCUS

Defendants.

1
)

-

INITIAL DISCLOSURES OF DEFENDANTS - CASE NO. CV-08-4052 JF

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Pursuant to Rule 26(a)(l) of the Federal Rules of Civil Procedure, Defendants Brian Dunning, Thunderwood Holdings, Inc. Briandunning.com, Todd Dunning, Dunning Enterprises, Inc. and Kessler 's Flying Circus (collectively, "Dunning Defendants") submit the following initial disclosures. These initial disclosures are based on information reasonably available to the Dunning Defendants at this time. The Dunning Defendants' investigation, trial preparation and review of documents related to this matter is continuing. Accordingly, the Dunning Defendants reserve the right under the Federal Rules of Civil Procedure to supplement these disclosures should additional information become available through further investigation, discovery or otherwise. In making these statements and the disclosures, the Dunning Defendants are not waiving and reserve any and all applicable defenses. A.

Witnesses
The Dunning Defendants identify the individuals and entities listed on the

attached Exhibit "A," pursuant to Rule 26(a)(l)(A). The identification of a name as part of this initial disclosure is not, and should not be interpreted as, a statement by the Dunning Defendants that named individuals will appear as witnesses at trial. The inclusion of a name is not, and should not be interpreted as, a waiver of any attorney-client or other privilege that may apply. Further, the absence of a name from the list provided by the Dunning Defendants is not, and should not be interpreted as, a statement by the Dunning Defendants that an individual does not have relevant knowledge and will not appear as a witness at trial. The Dunning Defendants anticipate that there may be other witnesses, including present and former employees of eBay, Inc. and Commission Junction, Inc. or third parties whose identities and scope of knowledge are not currently known to the Dunning Defendants and who may have information relevant to the Dunning Defendants' defenses. As discovery and the Dunning Defendants' investigation progress, the Dunning Defendants will supplement this disclosure to the extent required by the Federal Rules of Civil Procedure and any applicable local rules. B.

Documents
As indicated in the Joint Case Management Statement to be filed in this action, 2
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the FBI has seized all of the Dunning Defendants' records and has refused to return them and/or allow the Dunning Defendants to make copies. Such documents may be used by the Dunning Defendants to support its defenses in this action. The Dunning Defendants will produce a copy of all documents produced by Commission Junction, Inc. in the Related State Court Action to the extent Plaintiff is not already in possession of such documents and to the extent such production is not in violation of the Stipulated Protective Order entered in the Related State Court Action. In addition, all documents produced by Defendants Todd Dunning and Dunning Enterprises, Inc. in the Related State Court Action will be produced. The above-referenced identification of documents is not, and should not be interpreted as, a statement by the Dunning Defendants that the identified documents will be used as an exhibit at trial or as an admission as to the authenticity or admissibility of any document. Further, the absence of a document, data compilation or tangible thing from the documents identified by the Dunning Defendants is not and should not be interpreted as a statement by the Dunning Defendants that such items are not relevant and wil1,not be used as exhibits at trial. As discovery and the Dunning Defendants' investigation and trial preparation progress, the Dunning Defendants will supplement this disclosure to the extent required by the Federal Rules of Civil Procedure. C.

Damages
The Dunning Defendants have not yet made claims for damages in this action.

D.

Insurance
At this time, the Dunning Defendants are not aware of any available insurance.

DATED: January 8, 2009

RUS, MILIBAND & SMITH A Professional Corporation

Attorneys for Defendants THUNDERWOOD HOLDINGS, INC., BRIAN DUNNING, and BRIANDUNNING.COM

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DATED: January 8,2009

FREELAND COOPER & FOmMAN, LLP

By: . STEWART H. FOREMAN Attorneys for Defendants TODD DUNNING and DUNNING ENTERPRISES,INC, DATED: January 8,2009

&xLlL-3

LAW OFFICES OF PATRICK K,McCLELLAN
By: PATRIC!K Ed, McCLELLAN Attorneys for Defendants KESSLER'S FLYING CIRCUS

INITIAL DISCLOSURES OF DEFENDANTS

- CASE NO. CV-08-4052 JF

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EXHIBIT "A?'

eBay, Inc. v. Digital Point Solutions, Inc., et al. Case No. CV-08-4052 JF
1.
Brian Dunning C/ORUS, MILIBAND & SMITH, APC 221 1 Michelson Drive Seventh Floor Irvine, CA 92612 Telephone: [phone] Facsimile: (949) 252-15 14

Subject of information: Brian Dunning has information regarding Defendants' defenses to the claims alleged by Plaintiff. 2. Todd Dunning C/OStewart H. Foreman Freeland, Cooper & Foreman, LLP 150 Spear Street, Suite 1800 San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone]

Subject of information: Todd Dunning has information regarding Defendants' defenses to the claims alleged by Plaintiff. 3. George Yuhba Daniel Powell David Kruszenski Mark Gefteas Carlos Hurtado Dan Sweeney Tori Johnson June Shie Mark Stannard Jelena Petrovic Jennifer Burnett Jo O'Brien Jennifer Lovette Dave Osman Scott Barlow

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Kerri Pollard C/OPhil J. Montoya, Jr., Esq. Ernster Law Offices, P.C. 70 South Lake Avenue, Suite 750 Pasadena, CA 91 101 Telephone: [phone] Facsimile: [phone] Subject of information: These individuals were identified by Commission Junction, Inc. ("CJI") as employees of CJI having knowledge of the claims alleged by CJI in the related State Court Action. These individuals may or may not have information regarding Defendants' defenses to the claims alleged by Plaintiff.

4.

Dan Burkhart Bei Lu Christine Kim Andrea Kaye Andreas Fvchs Caroline Malifaud Sara Carter Dan Serpico Lily Shen Jarrod Schwarz Jeerasrin Rakchart Chad Wehrmaker Michelle Fang

Subject of information: These individuals were identified by CJI as employees of eBay, Inc. having knowledge of the claims alleged by CJI in the related Sate Court Action. These individuals may or may not have information regarding Defendants' defenses to the claims alleged by Plaintiff.

5.

George Conlow 60 Oakland Street Ext. Natick, MA 01760 [phone] Jeff Ransdell 103 Burton Circle Santa Barbara, CA 93 101 [phone] Ben Kopetti 41 SE 7ShAvenue Portland, OR 97215 [phone]

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Peter Bexelius 2230 SW Sunset Dr. Portland, OR 97239 [phone] Todd Miller 78 Brandon St. Goleta, CA 93 117 Home: [phone] Andrea Bardakos 325 West Figueroa Street Santa Barbara, CA 93 101 [phone] Joshua McLung P.O. Box 37 Summerland, CA 93067 [phone] Ida Gustafsson Spangavagen 27 Brornma 168 75 Sweden Chris Squire Mediaplex Andrew Way 18 Humphrey Rd Apt B Montecito , CA 93108 [phone] Terance Kinsky 639 Ricardo Ave Santa Barbara, CA 93109 [phone] Subject of information: These individuals were identified by CJI as having knowledge of the claims alleged by CJI in the related Sate Court Action. These individuals may or may not have information regarding Defendants' defenses to the claims alleged by Plaintiff.

INITIAL DISCLOSURES OF DEFENDANTS - CASE NO. CV-08-4052 JF