Spark Network Services, Inc. v. Match.Com, LP et al

Filing 60

STATUS Report for 10/10/07 hearing by Spark Network Services, Inc., Match.Com, LP, eHarmony. Com., Inc. (Attachments: #1 Exhibit)(Niro, Raymond)

Spark Network Services, Inc. v. Match.Com, LP et al

Doc. 60

Case 1:07-cv-00570

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Filed 10/05/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION SPARK NETWORK SERVICES, INC., ) ) Plaintiff, ) ) v. ) ) MATCH.COM, LP, eHARMONY.COM., ) INC. and YAHOO!, INC. ) ) Defendants. ) Civil Action No. 1:07-cv-00570

STATUS REPORT OF ALL PARTIES The parties provide the Court with this Status Report in response to the Court's request made at the status conference on September 20, 2007, and in anticipation of the status conference scheduled for October 10, 2007. While the parties have worked out some of the disputes between them, some as described below remain at issue: Plaintiff's Report: 1. Regarding the documents of Gary Kremen, Match.com earlier today (October 5, 2007) provided Mr. Kremen's attorney a proposal to attempt to facilitate production of the documents. Because this issue has been

outstanding for several weeks, it was suggested at the last hearing that Match.com should serve Gary Kremen with a third party subpoena for documents, which has not been done. (After this portion of the Status Report was submitted to Defendants, Match.com for the first time indicated that it allegedly "has been trying to serve Mr. Kremen since

Dockets.Justia.com

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September 18" ­ two months after the subpoena was issued ­ and with no detail of the alleged attempts at service.) 2. Regarding the Protective Order, the only issue remaining is whether Defendants should be allowed to have a client representative (in-house counsel) review confidential documents, while precluding Plaintiff from designating any client representative to do the same. Plaintiff's proposal would limit Plaintiff's designation to an employee with no business responsibility within the company. Defendants' Report: 1. Match.com has made a proposal to counsel for Gary Kremen that they hope will allow for their inspection of Mr. Kremen's relevant documents without further controversy. Specifically, Match.com has agreed to pay to Mr. Kremen $2,500.00 toward the cost of having shipped and assembled for inspection the fourteen boxes of documents that he reviewed at the request of SNS. Match.com has also advised Mr. Kremen, through his counsel Richard Idell, of the Court's offer to enter an order containing a claw back provision. Match.com hopes that such an order will obviate the need for a privilege review, thereby mooting the privilege review cost issue. Attached is a copy of the letter from Match.com counsel Larry D. Carlson to counsel for Mr. Kremen, Richard Idell, making this proposal. 2. On the issue of service of a subpoena upon Mr. Kremen, Match.com prepared a subpoena and negotiated with Mr. Kremen's attorney, Richard Idell, on whether he would accept service of the subpoena. 2 Mr. Idell

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proposed two conditions: (1) a payment of $2,500.00 from Match.com for the cost of assembly and shipment of the relevant documents and (2) payment from Match.com for the cost of a privilege review of those documents. Match.com declined these proposals. Match.com then

employed a process server to serve Mr. Kremen with the subpoena at the address of Mr. Kremen that Match.com had found through research. The process server has been trying to serve Mr. Kremen since September 18, 2007, but has been unable to serve him at the address Match.com has for him. Last week, Match.com employed another process server. That

process server has also not yet been able to serve Mr. Kremen. If Mr. Kremen, through his counsel, agrees to the proposal above, that shoud negate the need for service of the subpoena. Since SNS raised the

service issue in its paragraph 1 above, and given that Mr. Kremen is SNS's consultant, Match.com today asked Spark counsel to provide it with a current address for Mr. Kremen so that service of the subpoena can be accomplished forthwith. 3. Defendants have advised SNS that they will agree to SNS's request to remove the language from the Protective Order that would create an absolute bar for any "former officer, director, or employee" reviewing confidential information of another party. Match.com and eHarmony each reserve the right to object to Mr. Kremen pursuant to the provisions in Section 8 of the Protective Order if and when SNS designates him as a

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consultant or expert to whom SNS would like to show confidential Match.com or eHarmony materials and information. 4. Defendants maintain their disagreement with Plaintiff's characterization of the remaining dispute regarding the Protective Order. The Defendants do not wish to preclude Plaintiff from have a client representative be able to review highly confidential materials. However, Defendants can not agree to allowing Plaintiff's CEO or other strategic business planners at SNS access to Defendants' respectively highly confidential and proprietary materials. To date, Plaintiff has not come forward with any alternative designees. Moreover, Plaintiff has failed to explain how it is prejudiced under the current wording of the draft Protective Order. As explained

during the September 20, 2007 status conference, Defendants' respective in-house counsel would be allowed to review confidential materials in order to assist outside counsel in creating legal strategies and giving legal advice to their clients. Dated: October 5, 2007

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Respectfully Submitted, /s/ Raymond P. Niro, Jr. Paul K. Vickrey Raymond P. Niro, Jr. Frederick C. Laney NIRO, SCAVONE, HALLER & NIRO 181 West Madison Street, Suite 4600 Chicago, IL 60602 [phone] Attorneys for Plaintiff, Spark Networks Services, Inc. /s/ Larry D. Carlson Larry D. Carlson Kevin J. Meek Chad C. Walters John C. Nickelson BAKER BOTTS L.L.P. 2001 Ross Avenue, Suite 1100 Dallas, TX 75201 [phone] Craig A. Varga Elizabeth Barry VARGA BERGER LEDSKY HAYES & CASEY 224 South Michigan Avenue, Suite 350 Chicago, IL 60604 [phone] Attorneys for Defendant, Match.com /s/ Matthew J. Hult Chris R. Ottenweller Matthew J. Hult Robert E. Freitas Sugithra Somasekar ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 [phone] Amy L. Beckman ORRICK, HERRINGTON & SUTCLIFFE LLP 666 Fifth Avenue New York, NY 10103 [phone] Leif R. Sigmond, Jr. S. Richard Carden Jennifer M. Kurcz MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP 300 S. Wacker Drive, Suite 3200 Chicago, IL 60606 [phone] Attorneys for Defendant, eHarmony.com

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