Gordon v. Impulse Marketing Group Inc

Filing 243

MEMORANDUM in Support re 235 First MOTION to Compel Plaintiff's Response to Defendant's Discovery and for Sanctions Supplemental filed by Impulse Marketing Group Inc. (Ivey, Floyd)

Gordon v. Impulse Marketing Group Inc

Doc. 243

Case 2:04-cv-05125-FVS

Document 243

Filed 02/22/2006

FLOYD E. IVEY Liebler, Ivey, Connor, Berry & St. Hilaire 2 P. O. Box 6125 Kennewick, WA 99336-0125 3 5 0 9 -7 3 5 -3 5 8 1 Attorneys for Defendant 4 Impulse Marketing Group, Inc. and Third Party Plaintiff
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Klein, Zelman, Rothermel, & Dichter, L.L.P. By: Sean Moynihan, Esq.; Peter Glantz 485 Madison Avenue 7 New York, New York 10022 Telephone Number [phone] 8 Facsimile Number [phone] Attorneys for Defendant 9 Impulse Marketing Group, Inc. and Third Party Plaintiff
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DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 12 509-628-0809 Fax [phone] Attorney for Plaintiff
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Memorandum re: Motion to Compel and for Sanctions Page 1 of 4
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON ) ) ) Pl a i n t i f f , ) vs. ) ) IMPULSE MARKETING GROUP, ) INC., ) ) Defendant ______________________________ ) ) ) IMPULSE MARKETING GROUP, INC., ) ) ) Third-Party Plaintiff, ) vs. ) ) BONNIE GORDON, et al., ) ) Third-Party Defendants. JAMES S. GORDON, JR., No. CV-04-5125-FVS DEFENDANT'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL AND FOR SANCTIONS TELEPHONIC HEARING 3/8/06

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Dockets.Justia.com

Case 2:04-cv-05125-FVS

Document 243

Filed 02/22/2006

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The Defendant has filed, on Tuesday, February 21, 2006, its Motion to Compel Plaintiff's Response to Defendant's Discovery served on Plaintiff December 6, 2005. Defendant has received on Wednesday, February 22, 2006, from attorney Richard Siegel, the attached 3 pages titled "Answers to Interrogatories" and "Responses to Defendant's First Requests for Production of Documents". Counsel Douglas McKinley, for Plaintiff, has advised that he will withdraw and or that counsel Richard Siegel will substitute. However, there has been no evidence of substitution. Mr. McKinley appears to remain counsel of record for Plaintiff. The Plaintiff's Responses have been reviewed with answers and productions deemed by Defendant to be non-responsive identified in a letter from Defendant attorney Floyd E. Ivey to attorney Mr. McKinley with copy to Mr. Siegel delievere by fax and email to Mr. McKinley at approximately 11:30 a.m. and to Mr. Siegel by email on February 22, 2006. A copy of the letter is incorporated herein. Attorney Ivey called Mr. McKinley prior to 12 noon on February 22, 2006, received a answer machine and left a message inviting Mr. McKinley to respond to the 37.1 conference request. Mr. Siegel has been requested by email to likewise respond. Mr. Siegel has responded to advise that he is substituting and that he should have an opportunity to respond specifically to the contended deficiencies. Counsel for Defendant awaits a response. Pages 5 and 6 of the Defendant's First Interrogatories are apended hereto. The letter from Ivey to attorney Mr. McKinley, copied to substituting Mr. Siegel and acknowledged by Mr. Siegel, of February 22, 2006, sets out the substance of Interrogatories 2, 3, 4, 5 and 6 and the contention of non-responsiveness. Likewise set out is page 1 of the Defendant's First Request for Production of Documents. The substance of Requests No. 3, 4, 5 and 6 are stated along with the contention of non-responsiveness.
Memorandum re: Motion to Compel and for Sanctions Page 2 of 4
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Case 2:04-cv-05125-FVS

Document 243

Filed 02/22/2006

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Defendant's Motion to Compel is pursuant to FRCP 37(a)(2). Counsel for Defendant certifies that a good faith attempt has been made to confer with Plaintiff's counsel. Counsel Mr. Siegel has requested that this matter be continued to Friday, March 3, 2006 to allow counsel sufficient time to respond. Plaintiff's counsel states that "we have already provided you with virtually all responsive documents in my client's possession, albeit perhaps not in the precise format in which you would prefer." The statement indicates little prospect of agreement on what must be produced and addressed in answers to i n t e rro g a t o ri e s . Plaintiff alleges at 3.6 of Plaintiff's Complaint that Defendant has transmitted thousands of commercial electronic mail messages to Plaintiff at various addresses of the Plaintiff's domain "Gordonworks.com." Plaintiff has provided, as a Rule 26 initial disclosure, a CD indicating to contain thousands of email messages. Defendant's discovery specifically requires the Plaintiff to demonstrate facts relative to each email alleged to offend the statute. Plaintiff's response to Interrogatories and Plaintiff's Production refuses to address each message. Rather, Plaintiff's approach is to require the Defendant to do the forensics for each email. Plaintiff's fundamental burden is in demonstrating that there are one or more electronic mail messages which affront the statute. Plaintiff's responses are wholly non-responsive. Defendant asks the Court to award Sanctions per FRCP 37(a)(4). Freeman v. San Diego Ass'n of Realtors 322 F.3d 1133, 1156 (C.A.9 Cal. 2003). DATED this 22st day of February, 2006. LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

By s/ Floyd E. Ivey
Memorandum re: Motion to Compel and for Sanctions Page 3 of 4
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Case 2:04-cv-05125-FVS

Document 243

Filed 02/22/2006

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FLOYD E. IVEY, WSBA#6888 Attorneys for Defendant

I hereby certify that on February 22, 2006, I electronically filed Defendant's Supplemental Memorandum in Support of Motion to Compel 4 with the Clerk of the Court using the CM/ECF System which will send notification of such filing to ________________, Peter J. Glantz and Sean A. 5 Moynihan. I hereby certify that I have served the foregoing to the following nonCM/ECF participants by other means: Bonnie Gordon, Jonathan Gordon, James S. 6 Gordon, III, Robert Pritchett, Jamila Gordon and Emily Abbey. Also served is Robert Siegel, who has also been sent these pleadings by email.
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Memorandum re: Motion to Compel and for Sanctions Page 4 of 4
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

S/ FLOYD E. IVEY FLOYD E. IVEY

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]