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

Filing 80

STIPULATED ORDER Compelling Discovery re: 46 and 61 MOTIONS to Compel, and granting 70 Motion to Extend Discovery - Signed by Magistrate Judge Virginia M Morgan. (JJoh)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN THE WEATHER UNDERGROUND, INC., a Michigan corporation, Plaintiff, vs. Case No. 2:09-CV-10756 Hon. Marianne O. Battani

NAVIGATION CATALYST SYSTEMS, INC., a Delaware corporation; BASIC FUSION, INC., a Delaware corporation; CONNEXUS CORP., a Delaware corporation; and FIRSTLOOK, 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 ______________________________________________________________________ STIPULATED ORDER COMPELLING DISCOVERY

The Court having reviewed documents related to Plaintiff's Motion to Compel Discovery(Docket No. 46), Defendant's Motion to Compel Discovery (Docket No. 61) and Plaintiff's Motion to Extend Discovery (Docket No. 70), the parties having stipulated to resolve certain issues and the Court being advised in the premises, IT IS HEREBY ORDERED:

With regard to Plaintiff's Motion to Compel Discovery (Docket No. 46): 1. This Stipulated Order is without prejudice to either Party's right to move the Court for a modification of the scope of discovery at a later date. 2. The words `You', `Your', `NCS' and `Defendant' as used herein and in Plaintiff's discovery requests is defined to include Connexus, Firstlook, Basic Fusion and any other affiliated companies that are involved in the registration, use or trafficking of domain names registered by Navigation Catalyst Systems, Inc. 3. Unless otherwise indicated, the "Relevant Period" means the timeframe beginning July 22, 2004 (believed to be the date when Defendant first registered a domain alleged to infringe Plaintiff's trademarks) through the present. 4. With regard to production of voluminous email the following shall apply. To the extent NCS affirms that production of email in response to specific requests is too difficult and voluminous and as an alternative to producing all email, NCS may propose a list of search queries to run on all relevant email databases to Plaintiff's counsel for review. Plaintiff's counsel may provide any proposals for modification of the search queries within 5 business days. The parties shall meet and confer with respect to such proposal and NCS shall execute the queries upon which the parties agree. 5. With regard to RFP #2, NCS is ordered to look for all non privileged, communications and supplement its response. 6. With Regard to RFP #3, RFP #4, RFP #5, RFP #6, #9, NCS is ordered to look for and produce responsive documents for or related to NCS solely (i.e., not Connexus, Firstlook or Basic Fusion), if any, and supplement its responses accordingly. With regard to searching email databases, NCS is ordered to provide a document confirming that an inquiry was conducted using the following keywords: Invest!, Capital!, Start up, Form!, Venture capital, Prospectus. 7. With regard to RFP #7 and #8, NCS is ordered to produce its audited financial statements including Profit and Loss and Balance Sheets from 2004 to 2008 and any subsequent years as they become available. 8. With regard to RFP #12 and ROG #2, NCS will supplement its response and produce employment and work-related contracts or offer letters for individuals performing work related to domain name registration and/or monetization for the Relevant Time Period, if any. 9. With respect to RFP #14, NCS will supplements its response and produce responsive documents, if any.

10. With regard to RFP # 15, NCS is ordered to produce corporate records, including bylaws, articles, membership agreements, certificates of incorporation, stock certificates, and license resolutions and minutes related to domain name registration, use, or trafficking.. 11. With regard to RFP #17-19, NCS will supplement its response and produce responsive documents, if any, but the search and production of e-mail shall be subject to Paragraph #4. 12. With regard to RFP #21, NCS will supplement its production and produce responsive documents. 13. With regard to RFP #22, 23, 24, 25, 26, 27, 29 NCS is ordered to look for and produce responsive documents, if any. To the extent NCS is being asked to produce emails, NCS shall comply with paragraph 4 for the Relevant Period. 14. With regard to RFP #28, NCS is ordered to supplement production of documents if any. 15. With regard to RFP #30, NCS is ordered to look for and produce all documents which constitute, refer to or relate to employment policies, if any. 16. With regard to RFP # 31, 34, the parties stipulate to the admissibility of Domain Tools archival WHOIS data subject to each parties right to contest the accuracy of that data and subject to production of any documents in support thereof. NCS agrees that it will not seek to calculate the difference between revenue and profits on Plaintiff's claim of disgorgement of profits as it relates to the Domains At Issue. NCS will produce revenue for the Domains at Issue, to the extent that it has not already been provided. NCS shall provide a delete date if applicable for each of the Domains At Issue. NCS shall provide all communications, if any, received by third parties inquiring about purchase or use of the Domains At Issue. 17. With regard to RFP# 32, and to the extent possible, NCS is ordered to produce the raw data from which document NCS000001 was generated. 18. With regard to RFP# 33, NCS is ordered to look for and produce or affirm, via affidavit, that documents requested are not reasonably available and state in detail why the documents are not reasonably available for production. 19. With Regard to RFP# 36, the parties stipulate to the admissibility of Domain Tools data concerning WHOIS hosting, registrar, and related information. The parties reserve their right to challenge the admissibility should their documentation reveal that the Domain Tools data was incorrect and subject to their obligation to provide supporting documents. 20. With regard to RFP #42, NCS shall supplement its response and provide responsive documents if any.

21. With regard to RFP#45, NCS shall supplement it response. To the extent that NCS states information otherwise not available, it will provide an affidavit explaining in detail why documents are no longer available. 22. With regard to RFP#46, NCS shall supplement it response. 23. With regard to RFP #52 and #53, NCS shall supplement its production by producing all previous drafts of the Firstlook and Basic Fusion Agreement, if any. 24. With regard to RFP #57, NCS shall supplement its production and produce responsive documents, if any. 25. With regard to RFP #58 and ROG #6, NCS shall supplement by identifying all commercial disputes, by stating case name and number and general explanation of any lawsuit, arbitration, or other adversarial proceeding. 26. With regard to RFP #59, NCS shall supplement its response. 27. With regard to RFP #60, NCS shall supplement its response and produce responsive documents, if any. 28. With regard to ROGS 3, 4, 5, NCS is ordered to supplement its response to include version or other software identification, people who assisted in the design, development, coding, and maintenance, and dates of use to the extent such information is available. 29. To the extent a request for production or interrogatory is not addressed herein nor raised at the hearing on May 19, 2010, it shall be deemed withdrawn, and NCS shall have no further obligation with respect to such request or interrogatory. 30. NCS shall comply with the above provisions within 25 days. 31. During the pendency of this lawsuit, NCS shall suspend any non-automated document destruction. To the extent that automated document destruction exists, NCS will provide a list of such automated systems to Plaintiff. Plaintiff may thereafter seek modification of this provision of the order. With regard to Defendant's Motion to Compel: 1. Plaintiff shall reproduce any illegible document already identified by NCS as illegible. Plaintiff further agrees to produce any document in color if it was originally in color. For illegible document identified in the future, NCS agrees to specifically identify to Plaintiff which documents require reproduction and Plaintiff shall produce those requests within 10 days of receiving the request.

2. With regard to RFP #6, 28, Plaintiff shall produce documents not available via the USPTO website at www.uspto.gov within 10 days notice. 3. With regard to RFP #12, 27, Plaintiff shall produce Profit and Loss Statements and Balance Sheets from 2006 to present to the extent they exist. With regard to Plaintiff's Motion to Extend Discovery, all future dates, except the status conference scheduled with Judge Battani on June 3, 2010, are extended 90 days. SO ORDERED. S/Virginia M. Morgan Virginia M. Morgan United States Magistrate Judge Dated: May 20, 2010

PROOF OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record via the Court's ECF System and/or U. S. Mail on May 20, 2010. s/Jane Johnson Case Manager to Magistrate Judge Virginia M. Morgan