Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 246

DECLARATION by William A. Delgado re 243 MOTION in Limine No. 4 filed by Connexus Corporation, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Delgado, William)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,
Plaintiff,
Case No. 2:09-CV-10756
Hon. Marianne O. Battani

vs.
NAVIGATION CATALYST SYSTEMS, INC.,
a Delaware corporation; CONNEXUS CORP.,
a Delaware corporation; FIRSTLOOK, INC.,
a Delaware corporation; and EPIC MEDIA
GROUP, INC., a Delaware corporation,

Defendants.
______________________________________________________________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Anthony P. Patti (P43729)
BUTZEL LONG, P.C.
HOOPER HATHAWAY, PC
150 West Jefferson, Suite 100
126 South Main Street
Detroit, MI 48226
Ann Arbor, MI 48104
[phone]
734-662-4426
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Local Counsel for Defendants
______________________________________________________________________
DECLARATION OF WILLIAM A. DELGADO IN SUPPORT OF DEFENDANTS’
MOTION IN LIMINE NO. 4

122061.1

I, William A. Delgado, declare as follows:
1.

I am over the age of eighteen and am lead counsel for Defendants in this matter. I

have personal knowledge of the facts stated herein except where stated on information and
belief, and, as to those matters, I believe them to be true.
2.

As lead counsel in this matter, I was responsible for overseeing NCS’s responses

and document production throughout the discovery process. Although NCS initially believed
that it had not retained the cease-and-desist letters it had received over the years, Lily Stevenson
had, in fact, retained them. She provided me with various cease-and-desist letters and UDRP
complaints that were produced to Plaintiff. The sum total of pages produced for that particular
set of documents exceeded 20,000 pages.
3.

Attached as Exhibit A are true and correct copies of the hearing transcript from

the hearing before Magistrate Judge Morgan on May 19, 2010.
4.

During the course of discovery, I was informed by Mavi Llamas that she discovered

an old, out-of-commission laptop that she had in her house from her early days (2004-2005) at the
predecessor company of Connexus Corporation. The contents of that laptop were reviewed for
responsiveness to Plaintiff’s requests for production, and responsive documents, which included emails and registration spreadsheets from that time frame, were produced.

5.

During the course of the deposition of Navigation Catalyst Systems (with Donnie

Misino appearing as the 30(b)(6) designee), a question arose regarding a letter I had sent
referring to 600,000 e-mails that NCS had identified for review. After Mr. Misino testified that
he had no knowledge as to the status of that review and as page 138 of the Misino deposition
transcript indicates, the parties went off the record, and I specifically informed Mr. Schaefer that:

(i) NCS client had provided me approximately 600,000 e-mails, (ii) that I had reviewed each and
every one of the e-mails, (iii) that only 1,500 e-mails were responsive to a discovery request, and
(iv) that the remaining e-mails were spam e-mails. A true and correct copy of the relevant
excerpts from that deposition transcripts are attached as Exhibit B.
6.

The 600,000 e-mails referred to in the NCS/Misino deposition refer only to an

initial production of e-mails that was very limited in scope as the result of Magistrate Judge
Morgan’s May 2010 order.
7.

Eventually (and much after the deposition), Plaintiff identified a broad group of

search terms. At my instruction, Defendants executed an e-mail search across multiple e-mail
boxes of relevant custodians for those search terms. Responsive, non-privileged e-mails (which
included e-mails from 2006-2010) were then produced on January 26, 2011 and that production
exceeded 19,000 pages.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on this 24th day of February 2012 at Los Angeles, California.
/s/William A. Delgado
William A. Delgado

CERTIFICATE OF SERVICE

I hereby certify that on February 24, 2012, I electronically filed the foregoing
paper with the Court using the ECF system which will send notification of such filing to
the following:
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
BUTZEL LONG, P.C.
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
Local Counsel for Defendants

Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB, LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants