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. 9

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page1 of 23

EXHIBIT 10

Dockets.Justia.com

Case5:08-cv-04052-JF Document91-10
*

Filed06/05/09 Page2 of 23

Seyamack Kouretchian (State Bar No. 171741) [e-mail] Ross Campbell (State Bar No. 234827) Rcampbell@Coast LawGroup.com COAST LAW GROUP, LLP 169 Saxony Road, Suite 204 Enchitas, California 92024 Tel: [phone] Fax: [phone] Attorneys for Defendants, SHAWN HOGAN and DIGITAL POINT SOLUTIONS, INC.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORMA SAN JOSE DIVISION
EBAY, INC., Plaintiff,
v.
) ) ) ) )

Case No. CV 08-04052 SF PVT

DIGITAL POINT SOLUTIONS, INC., SHAWN ) HOGAN, KESSLER'S FLYING CIRCUS, ) THUNDERWOOD HOLDINGS, INC., TODD DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, BRTANDUNNING.COM, and Does 1-20, 1
)

DEFENDANT DIGITAL POINT SOLUTIONS, INC.'S RESPONSES TO PLAINTIFF'S REQUESTS FOR PRODUCTION (SET ONE)

Defendants.

1 1
)

PROPOUNDING PARTY: Plaintiff EBAY, INC.
RESPONDING PARTY:

Defendant DIGITAI, POINT SOLUTIONS, INC. One

SET NUMBER:

Defendant DIGITAL POINT SOLUTIONS, INC. ("Defendant") hereby responds to the Plaintiff EBAY, INC.'s ("PlainWs") First Set of Requests for Production, as follows:

Defendant Digital Point Solutions, Inc.'s Responses to PlaintifT's Requests For Production, Set One

Case No. CV 08-04052 JF
1

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page3 of 23

I. P m L I m m Y STATEMENT
Defendant SHAWN HOGAN (""Mr.Hogan") has asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution (United States v. Balsys (1998) 524 U.S. 666,672; LeJkowitz v. Turley (1973) 414 U.S. 70,77); the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. The provision of any responses by Defendant hereunder shall not be construed to be a waiver of the same. Defendant further objects because conducting discovery is premature and inapprdpriate at this time. FBI Special Agent Melanie Adams and Assistant United States Attorney Kyle F. Walding inform that Defendant is the subject of a grand jury investigation and that it is anticipated that criminal charges will be filed. Upon the transfer of this action to the appropriate forum, Defendant intends to seek a stav of this action (and/or any other a~ropriate relief), including a stay of all discoverv in this matter, pendine: the resolution of anv potential criminal proceedings andlor until the statute of limitations on anv such criminal wroceedinw .has m. To the extent Mr. Hogan determines that there is no longer a threat of criminal prosecution and/or elects to withdraw his assertion of the privilege against self-incrimination, Defendant ex~resslv reserves the right to suw~lernent these responses accordin@ (in whole or in part), and to object to the use or disclosure of the following responses for anv purpose whatsoever. Defendant further objects to the subject interrogatories in that Defendant's Motion to Dismiss Plaintiffs First Amended Complaint was granted with leave to amend as to Plaintiffs claims under the Racketeer Influenced and Corrupt Organizations Act and other fraud-based claims and discovery is therefore premature. Williamsv. RWX Techndogies, Inc., 112 F.3d 175, 178 (5th Cir. 1997) (in fraud cases, the requisite elements must be adequately laid out "before access to the discovery process is granted." (emphasis in original)). Defendant further objects to the definitions set forth in PlaintiPs requests as compound, vague and ambiguous; these objections further include, but are not limited to, the following: "DPS"is overbroad, unduly burdensome and oppressive in that it purports to apply to third parties collectively andlor individually, to information subject to the attorney-client privilege, and purports to seek responses fiom Mr. Hogan as phrased. "eBay" is firther unduly burdensome and oppressive in that the phrases "eBay's internationally operated websites," and "any and all divisions, subdivisions, departments or
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiff's Requests For Production, Set One
Case No. CV 08-04052'JF

2

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page4 of 23

subsidiaries of eBay" reference hformation that is within Plaintips control andor is unknown to Defendant. Defendant further objects because the term "Cookie Stuffing" is vague and ambiguous Defendant incorporates each of the foregoing objections in Defendant's responses below.

I . RE3PONSES I
REXlUlEST FOR PRODUCTION NO. 1
All documents relating to eBay, including ail agreements, terms of service and terms and conditions. Remonse to Reauest for Production No. 1: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant fLvther objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship and/or the attorney work product doctrine. Defendant further objects because this request may be construed to seek the production and inspection of jocuments which contain proprietarylconfidential information. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on

he corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment
to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full.

IUCOUEST FOR PRODUCTION NO. 2
All documents relating to, or Communications with, eBay or any current or former employee of eBay. Response to Request for Production No. 2: Objection. This request, inchding the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant M h e r objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship and/or the attorney work product doctrine. Defendant M e r objects because this request may be construed to seek the production and inspection of
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One Case No. CV 08-04052 JF 3

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page5 of 23

documents which contain proprietarylconfidential information. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full.

REOUEST FOR PRODUCTION NO. 3
All documents relating to payment of commissions or other revenue obtained by DPS through p%ticipation in, interaction with or manipulation of eBay's AfE1iate Marketing Program. Response to Reauest for Production No. 3: Objection. This request, including the use of the definitions provided f d D P S " and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request is compound and argumentative with respect to the tern "manipulation." Defendant further objects because this request may be cons.trued to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship and/or the attorney work product doctrine. Defendant further objects because this request may be construed to seek the production and inspection of documents which contain proprietaryIconfidentid information. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federa1 Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full.

REOUEST FOR PRODUCTION NO. 4
All documents relating to eBay's Affiliate Marketing Program, including, but not limited to, all methods and technologies used by DPS to obtain revenue fiom, manipulate or otherwise interact with eBay's Affiliate Marketing Program, including, but not limited to, all software, source code, Javascript, and HTML code.

1.1.1
Defendant Digital Point SoIutions, Inc.'s Responses to Plaintiff's Requests For Production, Set One 'Case No. CV 08-04052 JF

4

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page6 of 23

Res~onse Reauest for Production No. 4: to Objection. This request, including the use of the defnitions provided fofDPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request is compound, and is armentative with respect to the tern "manipulate." Defendant further objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship d o r the attorney work product doctrine. Defendant M e r objects because this request may be construed to seek the production and inspection of documents which contain proprietary/confidential information. Defendant

further objects because Mr. Hogan, as the sole shareholder of Defendant and the onIy person with
authority to verify responses on the corporation's behalf; has invoked his privilege against self incrimination under the Fifih Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in ill.

IUEOUEST FOR PRODUCTION NO.5
All documents relatirig to advertisements for eBay used, or purported to be used, on any website or ad network that directed or referred Users to eBay as part of eBay's Affiliate Marketing Program. Res~oonse Reauest for Production No. 5: to Objection. This request, including the use of the definitions provided for ""DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship andlor the attorney work product doctrine. Defendant further objects because this request may be construed to seek the production and inspection of documents which contain proprietary/cofidential idomtion. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verrfl-responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in 111.
Defendant Digital Point SoIutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One Case No. CV 08-04052 JF 5

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page7 of 23

REOIJEST FOR PRODUGTION NO. 6
All documents reflecting the number of Users who allegedly clicked on an advertisement for eBay used, or purported to be used, by DPS to direct or refer Users to eBay as part of eBay's Affiliate Marketing Program. Reswonse to Request for Production No. 6: objection. This request, incleding the use of the defmitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive, Defendant further objects because this request may be construed to seek the production and inspection of documents which are privileged fiom disclosure by the attorney-client relationship andlor the attorney work product d o c h e . Defendant M e r objects because this request may be construed to seek the production and inspection of documents which contain proprietary/confidential information. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the ~bove Preliminary Statement herein by reference in hll.
REOUEST FOR PRODUCTION NO. 7

All documents relating to methods or techniques intended to, or causing, a User's browser to load my eBay webpage, webpage content or data therefrom. Response to Request for Production No. 7: Objection. This request, including the use of the definitions provided for "DPS" and "eSay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request may be construed to seek the production and inspection of documents which are privileged fkom .disclosure by the attorney-client relationship andlor the attorney work product doctrine. Defendant further objects because this request may be construed to seek the production and inspection of documents which contain proprietary/confidential information. Defendant hrther objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One

Case No. CV 08-04052 JF
6

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page8 of 23

to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defmdant incorporates the above Preliminary Statement herein by reference in full.

REOUEST FOR P R O R U a O N NO. 8
All documents sufficient to identLfy all advertising networks, advertising syndication services or
websites used or purportedly used by DPS to advertise or promote eBay or to interact in any way with eBay or e13ayisAfftliate Marketing Programs. Remnse to Request for Production No. 8: Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant fkther objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship and/or the attorney work product doctrine. Defendant M e r objects because this request may be construed to seek the production and inspection of documents which contain pmpTietary/c~&dential information. D e f e n b t M e r objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the covration's behalf*has invoked h sprivilege against self incrimination under the Fifth Amendment i to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in fidl.

REOUEST FOR PRODUCTION NO, 9
All documents sufficient to identify all M ~ l i a t Marketing Programs, not including eBay's e ABliate Marketing Program, with whom DPS obtained revenuq or otherwise interacted. Res~onse Reauest for Production No. 9: to Objection. This request, including the use ~ tthe definition provided for "DPS," is vague and f ambiguous, overbroad, and unduly burdensome and oppressive. Defendant M e r objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship andlor the attorney work product doctrine. Defendant further objects because this request may be construed to seek the production and inspection of
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One

Case No. CV 08-04052 JF
7

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page9 of 23

documents which contain proprietarylconfidential information. Defendant M e r objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant further objects because Ivfr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrknination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant inmqorates the above Preliminary Stittement herein by reference in full.

REOUEST FOR PRODUCTION NO. 10

All docurnents relating to andlor describing methods and techniques used by any other Affiliate
Marketing Program that DPS interacted with, participated in or manipulated. Response to Request for Production No. 10: Objection. This request, including the use of the definition provided for "DPS," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request is compound, and argumentative with respect to the term "manipulated." Defendant further objects because this request may be construedto seek the production and inspection of documents which are privileged fiom disclosure by the attorney-client relationship andlor the attorney work product doctrine. Defendant M e r objects because this request may be construed to seek the production and inspection of documents which contain proprietarylconfidential information. Defendant fwther objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant fbrther objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full.
1.1.1

I././
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One Case No. CV 08-04052JF
8

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page10 of 23

mOUEST FOR PRODUCTION NO. 1I
All documents sufficient to identify the source of any technology, technique or method used by DPS to participate in, manipulate or interact with eBay Affiliate Marketing Program, or any other Affiliate Marketing Program. Response to Request for Production No. 11: Objection. This request, including the 6se of the definitions provided for "DPS" and '';f3ay," is

vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant M e r objects because this request is compound, and argumentative with respect to the term "manipulate." Defendant further objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship andlor the attorney work product doctrine. Defendant further objects because this request may be construed to seek the production and inspection of documents which contain proprietary/confidentialinformation. Defendant

fiirher objects because this request seeks the production of documents which are neither relevant to the
subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to v e w responses on the corporation's behalf, has invoked his privilege against self incrimbtion under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full.

REQUEST FOR PRODUCTION NO. 12
All documents sufficient to identify any individuals, groups, books, manuals or other materials consulted by DPS while developing any technology, technique or method used by DPS to participate in, manipulate or interact with the eBay Affiliate Marketing Program, or any other Affiliate Marketing Program. Res~onse Request for Production No. 12: to Objection. This request, including the use of the definitions provided for "DPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request is compound, and argumentative with respect to the term "manipulate." Defendant
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One
Case No. CV 08-04052 JF 9

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page11 of 23

M h e r objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship andlor the attorney work product doctrine. Defendant further objects because this request may be construed to seek the production and inspection of documents which contain proprietarylconfidential information. Defendant further objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant W e r objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verLfy responses on the corporation's behalf, has invoked his privilege against self i n c e a t i o n under the Fifih Amendment to the United States Constitution; the Fed& Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in Ml.
REQUEST FOR PRODUCTION NO. 13

All documents relating to C o ~ s s i o Junction, including all agreements, terms of service and n t e r n and conditions. Response to Request for Production No. 13: Objection. This request, including the use of the definitions provided for "DPS" and "Commission Junction," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant M e r objects because this request m y be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship and/or the attorney work product doctrine. Defendant M h e r objects because this request may be construed to seek the production and inspection of documents which contain proprietarylconfidential inf?orrnation. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's b e h a has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in fill.

I././ 1.1.1
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One Case No. CV 08-04052 JF
10

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page12 of 23

RJlQ~ST FOR PRODUCTION NO. 14
All documents relating to, or Communications with>Commission Junction or any current or former employee of Commission Junction. Response to Reauest for Production No. 14: Objection. This request, including the use of the definitions provided for "DPS" and "Commission Junction," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attopey-client relationship andor the attorney work product doctrine. Defendant M e r objects because this request may be construed to seek the production and inspection of documents which contain proprie~lconfidential Xormation and/or trade secrets. Defendant M e r objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to ver* responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 50 1;the California Constiation, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in 5Al.

REOUEST FOR PRODUCTION NO. 15
All documents relating to, or Communications with, Kessler's Flying Circus, Thunderwood Holdings, hc., Dunning Enterprise, Inc. or briandunning.com. Response to Reauest for Production No. 15: Objection. This request, including the use of the definition provided for "DPS," is vague and ambiguous, compound, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship andlor the attorney work product doctrine. Defendant m h e r objects because this request violates third party privacy rights. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under

the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the

Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One

Case No. CV 08-04052 JF
11

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page13 of 23

California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full.

REQUEST FOR PRODUCTION NO. 16
All Cornmications with Shawn Hogan, Todd Dunning or Brian Dunning. Resuorrse to Reauest for Production No. 16: Objection, This request, including the use of the definition provided for "DPS," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship and/or the attorney work product doctrine. Defendant firtther objects because this request violates third party privacy rights. Defendant further objects because

Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses
on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth

Amendment to the United States Constitution; the Federa1 Rules of Evidence, Rule 501; the California
Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Prelirninary Statement herein by reference in Ml.

REQUEST FOR PRODUCTION NO. 17
All documents relating to, or Communications with, Rachael Hughes, or any companies or entities owned, controlled, &liated with or used by Rachael Hughes, relating to eBay's Affiliate Marketing Program including, but not limited to, any agreements with Rachael Hughes and company

and any technology transferred to or $om Rachael Hughes and company.
Response to Reauest for Production No. 17: Objection. This request is compound, vague and ambiguous. Defendant further objects because the identity of Rachel Hughes and company is unknown to Defendant and/or within Plaintiffs control. Defendant reserves all other appropriate objections until Plaintiff properly identifies the referenced personslentities. Further, Defendant incorporates the above Preliminary Statement herein by reference in full. 1.1.1

1.1.1
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One
Case No.CV 08-04052 JF

12

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page14 of 23

mOUEST FOR PROIIUCTION NO. 18

All documents sufficientto describe a11 phone numbers, email addresses, web pages, instant
messenger or mail accounts and social network accounts maintained, formerly maintained or registered to LIPS. Reswnse to Reauest for Production No. 18: Objection. This request, including the use of the d e f ~ t i o provided for "DPS," is vague and n ambiguous, overbroad, compound, and unduly burdensome and oppressive. Defendant M e r objects because this request may be construed to seek the.production and inspection of documents which are privileged fkom disclosure by the attorney-client rdationship and/or the attorney work product doctrine. Defendant further objects because this demand may be construed to seek the production and inspection of documents which contain pmprietarylconfidential Somation. Defendant further objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant fiirther objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self i n c e m t i o n under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in fbll.

REOUEST FOR PRODUCTION NO. 19
Documents sufficient to identify any Aliases used by DPS in any Internet Forum at or within which DPS discussed any aspect of their participation in, manipulation of or interaction with eBayls Affiliate Marketing Program, or any other Afiliate Marketing Programs, including, but not limited to, forums such as blogs, listservs, Usenet newsgroups or chat rooms. Res~onse Reauest for Production No. 19: to Objection. This request, including the use of the definitions provided for "DPS" and "eBay" is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant hrther objects because this request is compound, and argumentative with respect to the term "manipulation." Defendant further objects because this request may be construed to seek the production and inspection of
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One

Case No. CV 08-04052 JF
13

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page15 of 23

documents which are privileged fiom disclosure by the attorney-client relationship and/or the attorney work product doctrine. Defendant M e r objects because this demand may be construed to seek the production and inspection of documents which contain proprietary/confidential information. Defendant further objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant W e r objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the CalifornJa Constitution, Article 1, Section 15; and California Evidence Code section 940. Furthei, Defendant incorporates the above Preliminary Statement herein by reference in full.

RIEOUEST FOR PRODUCTION NO. 20
Documents sficient to identrfy any Internet F o m at or within which DPS discussed any aspect of their Participation'in, manipulation of or interaction with eBay's Affiliate Marketing Programs, or any other f i l i a t e Marketing Programs, including, but not limited to, forums such as blogs, listservs, Usenet newsgroups or chat rooms. Response to Request for Production No. 20: Objection. This request, including the use of the definitions provided for 'TIPS" and "eBay" is vague and ambiguous, overbroad, compound, and unduly burdensome and oppressive. Defendant further objects because this request is compound, and argumentative with respect to the term "manipulation." Defendant further objects because this request may be construed to seek the production
and inspection of documents which are privileged from disclosure by the attorney-client relationship

andfor the attorney work product doctrine. Defendant further objects because this demand may be construed to seek the production and inspection of documents which contain propfietarylconfidential information. Defendant further objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant firther objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal
Defendant Digital point Solutions, Inc.3 Responses to Plaintiffs Requests For Production, Set One Case No. CV 08-04052 JF
14

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page16 of 23

Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference
in full.

REOUEST FOR PRODUCTION NO. 21
Documents sfl~cient identify all internet service providers (ISPs) and IP addresses used by to DPS. Reswnse to Rauest for Production No. 21: Objection. This request, including the use of the definition provided for "DPS," is vague and ambiguous, overbroad, compound, and unduly burdensome and oppressive, Defendant M e r objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant lkther objects because Mr. I.Iogan, as the sole shareholder of Defendant and the only person wt authority to verify ih responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth a e n h e n t to the United States Constitution; the Federal Rules of Evidence, Rule 50 1;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in Wl.

REOUEST FOR PRODUCTION NO. 22
Documents sufficient to identify all computers, servers, electronic data storage and hosting companies, entities, or facilities used by DPS. Reswnse to Reauest for Production No. 22: Objection. This request, including the use of the definition provided for "DPS," is vague and ambiguous, overbroad, compound, and unduly burdensome and oppressive. Defendant further objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant fbrther objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California

Defendant Digital Point Solutions, Inc.'s Responses to Plaintiff's Requests For Production, Set One

Case No. CV 08-04052 JF 15

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page17 of 23

2onstitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant ncorporates the above Preliminary Statement herein by reference in full.

REOUEST FOR PRODUCX'ION NO. 23
Documents suf3cient to identi@any entity used or hired to maintain or restore electronic data or rystems relating to DPS's participation in, manipulation of or interaction with eBay's Affiliate Marketing Program.
T 3 :

Objection. This request, including the use of the definitions provided for 'TIPS" and "eBay," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further.objects because this request is compound, and argumentative with respect to the term "manipulation." Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person

w t authority to verify responses on the corporation's behalf, has invoked his privilege against self ih
incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article I, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full. REOUEST FOR PRODUCTION NO. 24 Documents suficient to identify software used to clean, reformat or erase hard-drives used by DPS, or any equipment owned, used or maintained by DPS. Response to Reauest for Production No. 24: Objection. This request, including the use of the definition provided for "DPS," is vague and ~ b i g u o u scompound, overbroad,' and unduly burdensome and oppressive. Defendant hther objects , because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further,,Defendant incorporates the above Preliminary Statement herein by reference in full/ 1.1.1

1.1.1
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiff's Requests For_Production,Set One
Case No. CV 0854052 JF
16

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page18 of 23

REOUEST FOR PRODUCTION NO. 25
All documents sufficient to identify all business entities or fictitious business names currently or formerly maintained by DPS. Remonse to Reauest for Production No. 25: Objection. This request, including the use of the definition provided for "DPSy" is vague and ambiguous, overbroad, compound, and unduly burdensome and oppressive. Defendant fhrther objects because this request may be construed to seek the production and inspection of documents which are privileged fiom disclosure by the attorney-client relationship andlor the attorney work product doctrine. Defendant further objects because this demand may be construed to seek the production and inspection of documents which contain proprietary/ confidential information. Defendant further objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant further objects because Mr. Hogan, as the sole s ~ e h o l d eof Defendant and the only person with authority to verifj. responses on r the copration's behalf, has invoked his privilege against self incrimination under the Fiflh Amendment
to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Comtitution,

Article 1, Section 15; md California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in Eull.

RJEOUEST FOR PRODUCTION NO. 26
All documents relating to the incorporation of DPS. Response to Reouest for Production No. 26: Objection. This request, including the use of the definition provided for "DPS," is vague and ambiguous, compound, overbroad, and unduly burdensome and oppressive. Defendant further objects because M. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full.
$/*/./
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One

.

Case No. CV 08-04052 JF
17

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page19 of 23

FWOUEST FOR PRODUCTION NO.27
All documents filed by DPS with any Secretary of State. Res~onse Reauest for Production No, 27: to Objection. This request, including the use of the definition provided for "IPS," is vague and ambiguous, compound, overbroad, and unduly burdensome and oppressive. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to ver@ responses on the corporation's behalf, has invoked his privilege against self k c r i ~ n a t i o n under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constibtion, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full.

REQUEST FOR PRODUCTION NO.28
Documents suEcient to show the structure and organization of DPS and all companies or other entities owned or controlled by IIPS that were involved in or interacted with any ASliate Marketing Program. Response to Reauest for Production No. 28: Objection. This request, including the use of the definition provided for "DPS," is vague and ambiguous, overbroad, compound, and unduly burdensome and oppressive. Defendant further objects because this request may be construed to seek the production and ins~ection documents which are of privileged ftom disclosure by the attorney-client relationship andlor the attorney work product doctrine. Defendant further objects because this demand may be construed to seek the production and inspection of documents which contain proprietary/ confidential information, Defendant further objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and CaIifornia Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in fbll.
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One
Case No.CV 08-04052 JF

18

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page20 of 23

REOUEST FOR PRODUCTION NO. 29
Documents sufficient to identify all employees, contractors or temporary employees of DPS, their dates of employment, duties, salary and any other compensation. Response to Reuuest for Production No. 29: Objection. This request, including the use of the definition provided for "DPS," is vague and ambiguous, overbroad, and unduly burdensome-andoppressive. Defendant M e r objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant further objects to this request on the ground that it violates privacy rights of third parties. Defendant further objects because this demand may be construed to seek the production and inspection of documents which contain proprietary/ confidential idormation. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporatioll's behalf, has invoked his privilege against self inc*ation under the Fifth Amendment to the United States

Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full.

IUEOUEST FOR PRODUCTION NO. 30
All documents constituting IPS'S annual, quarterly and monthly audited, compiled, reviewed or unaudited financial statements, including all income statements and balance sheets of DPS. Resuonse to Request for Production No. 30: Objection. This request, including the use of the definition provided for "DPS," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant further objects because this demand may be construed to seek the production and inspection of documents which contain confidential financial information, trade secretdother proprietary information, and violates Defendant's right to privacy. Defendant further objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One

Case No. CV 08-04052 JF 1 9

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page21 of 23

against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference

in fill, REOUEST FOR PRODUCTION NO. 31
'

All documents sufficient to identifl all assets and fmancial accounts (including those outside of

the United States) maintained or formerly maintained by DPS. Res~onse Reauest for Production No. 3 1: to Objection. This request, inchding the use of the definition provided for "DPS," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant further objects because this demand may be construed to seek the production and inspection of documents which contain confidential financial informatioq trade secrets/other proprietary information, and violates Defendant's right toprivacy. Defendant M e r objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege

against self incrimination under the Fifth Amendment to the United States Constitution; the Federal
Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940, Further, Defendant incorporates the above Preliminary Statement herein by reference
in full.
,

REQUEST FOR PRODUCTION NO. 32
Documents constituting DPS's corporate tax returns for the years 2003 to the present. Resmnse to Reauest for Production No. 32: Objection. This request, including the use of the definition provided for "DPS," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant fwrther objects because this request seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant further objects because this demand may be construed to seek the production and inspection of documents which contain
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One
Case No.CV 08-04052 J F 20

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page22 of 23

:onfidential financial information, trade secretslother proprietary information, and violates Defendant's right to privacy. Defendant furCtxer objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to vertfy responses on the corporation's behalf, has invoked his privilege iigainst self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference

in m1.

REOUEST FOR PRODUCTION NO. 33
All documents relating to the transfer or assumption of any liability by DPS. Resmnse to Re~uest Production No. 33:. for Objection. This request, including the use of the definition provided for "DPS,"is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship andlor the attorney work product doctrine. Defendant M e r objects because this demand may be construed to seek the production and inspection of documents which contain confidential financial information andor violates Defendant's right to privacy. Defendant M e r objects because this request is overbroad and seeks the production of documents which are neither relevant to the subject matter of this action, nor likely to lead to the discovery of admissible evidence. Defendant M e r objects because Mr. Hogan, as the sole shareholder of Defendant and the only person with authority to verify responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501;the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in full.

REOUEST POR PRODUCTION NO. 34
All documents relating to any insurance policies relevant to this action.
1'1.1 I././
Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One Case No. CV 08-04052 JF 21

Case5:08-cv-04052-JF Document91-10

Filed06/05/09 Page23 of 23

Reswnse to Reauest for Production No. 34: Objection. This request, including the use of the defurition provided for "DPS," is vague and ambiguous, overbroad, and unduly burdensome and oppressive. Defendant further objects because this request may be construed to seek the production and inspection of documents which are privileged from disclosure by the attorney-client relationship andor the attorney work product doctrine. Defendant W h e r objects because W. Hogan, as the sole shareholder of Defendant and the only person with authority to verifL responses on the corporation's behalf, has invoked his privilege against self incrimination under the Fiith Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. Further, Defendant incorporates the above Preliminary Statement herein by reference in 111.

DATED: March 12,2009

COAST LAW GROUP LLP

,Shawn Hogan and Digital Point Solutions, Inc.

Defendant Digital Point Solutions, Inc.'s Responses to Plaintiffs Requests For Production, Set One

Case No. CV 08-04052 JF

22