Gordon v. Virtumundo Inc et al

Filing 102

DECLARATION of Derek Linke filed by Defendants Virtumundo Inc, Adknowledge Inc, Scott Lynn re 98 MOTION for Summary Judgment (Attachments: # 1 Exhibit A - Linke Log Part I# 2 Exhibit B - Linke Log Part II# 3 Exhibit C - Linke Log Part III# 4 Exhibit D - Linke Log Part IV# 5 Exhibit E - Linke Log Part V# 6 Exhibit F - Plaintiff Gordon's Answers and Responses to Defendant Adknowledge's First Interrogatories and Requests for Production of Documents to Gordon, pp. 1, 4# 7 Exhibit G - Plaintiff Omni's Answers and Responses to Defendant Virtumundo's First Interrogatories and Requests for Production of Documents to Omni, p. 1# 8 Exhibit H - Defendant Virtumundo, Inc.'s First Set of Interrogatories and Requests for Production to Plaintiff Omni Innovations, LLC# 9 Exhibit I - Plaintiff Omni's Answers and Responses to Defendant Virtumundo's First Interrogatories and Requests for Production of Documents to Omni, pp. 1, 4# 10 Exhibit J- Defendant Virtumundo, Inc.'s First Set of Interrogatories and Requests for Production to Plaintiff Gordon# 11 Exhibit K- Plaintiff Gordon's Answers and Responses to Defendant Virtumundo's First Interrogatories and Requests for Production of Documents to Gordon, pp. 1, 4# 12 Exhibit L - MSN website offering internet access service# 13 Exhibit M - EarthLink website offering internet access service# 14 Exhibit N - AOL website offering internet access service# 15 Exhibit O- Yahoo website offering internet access service)(Newman, Derek)

Gordon v. Virtumundo Inc et al

Doc. 102

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The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JAMES S. GORDON, Jr., a married individual, d/b/a `GORDONWORKS.COM'; OMNI INNOVATIONS, LLC., a Washington limited liability company, Plaintiffs, v. VIRTUMUNDO, INC, a Delaware corporation d/b/a ADNOWLEDGEMAIL.COM; ADKNOWLEDGE, INC., a Delaware corporation, d/b/a ADKNOWLEDGEMAIL.COM; SCOTT LYNN, an individual; and JOHN DOES, 1-X, Defendants. NO. CV06-0204JCC DECLARATION OF DEREK LINKE IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: February 16, 2007

I, Derek Linke, declare and testify as follows: 1. I am over eighteen years of age and am an attorney associated with counsel

for defendants in the above captioned action. My education before entering law school was primarily scientific and technical, including course work in computer science. I am competent to testify to the matters stated in this declaration, and make this declaration from personal knowledge of those matters. 2. On or about February 24, 2006, plaintiffs James Gordon and Omni
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

DECL. OF DEREK LINKE IN SUPP. OF DEFS.' MOT. FOR SUMM. J. - 1 (CV06-0204JCC)

Dockets.Justia.com

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Innovations, LLC, (together "Plaintiffs") produced an archive of emails named "virtumundo.mbx" (hereinafter "VM1") which contained 5,101 email messages and an archive named "adknowledgemailcom.mbx" ("ADK") which contained 1,695 email messages. 3. On or about July 25, 2006, Plaintiffs produced another archive named

"virtumundo.mbx" ("VM2") which contained 5,047 email messages and an archive named "Virtumundo-Omni.mbx" ("VO1") which contained 7,106 email messages. 4. 5. The emails in VM2 were nearly all previously produced in VM1. On or about November 29, 2006, Plaintiffs produced yet another archive

named "virtumundo.mbx" ("VM3") which contained 8,124 email messages and another archive named "Virtumundo-Omni.mbx" ("VO2") which contained 11,201 email messages. 6. VM3 appears to contain many emails previously produced in VM1 and

VM2. VO2 appears to contain many emails previously produced in VO1. 7. To evaluate the contents of Plaintiffs' archives, beginning on or about

November 16, 2006, defendants' counsel engaged a team of seven licensed attorneys to review all of the emails then produced by Plaintiffs including those in: VM1, VM2, VMO, and ADK, a total of nearly 19,000 emails. 8. Under my direction, the contract team reviewed all of the 19,000 emails for

their compliance with the federal CAN-SPAM Act of 2003, 15 U.S.C. § 7701 et seq. ("CAN-SPAM") and the Washington Commercial Electronic Mail Act (RCW 19.190) ("CEMA"). 9. The team worked twelve to fourteen hour days for more than two weeks,

including weekends, to review all of the emails and create logs of the results.. 10. In addition to participating in the reviewing and logging, I spent a

significant amount of time planning and implementing the logistics by which the review proceeded. 11. Upon completion of the team's review, I collated and merged all of the
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

DECL. OF DEREK LINKE IN SUPP. OF DEFS.' MOT. FOR SUMM. J. - 2 (CV06-0204JCC)

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contract attorneys' work product, reviewed and corrected the work, and assembled the work product into a manageable format consisting of a single log for each of Plaintiffs' archives. 12. Attached hereto as Exhibit A is a true and accurate copy of the log we

produced of Plaintiffs' emails contained in VM1. 13. Attached hereto as Exhibit B is a true and accurate copy of the log we

produced of Plaintiffs' emails contained in VM2. 14. Attached hereto as Exhibit C and Exhibit D are true and accurate copies of

the log we produced of Plaintiffs' emails contained in VMO, parts 1 and 2, respectively.. 15. Attached hereto as Exhibit E is a true and accurate copy of the log we

produced of Plaintiffs' emails contained in ADK. 16. We determined from our review, as recorded in the logs, that of the emails

in VM1 and VM2, some 6,000 (3,000 in each archive) predate January 1, 2004, the effective date of CAN-SPAM. 17. Also, nearly 1,000 of the reviewed emails have had their content stripped

out by Plaintiffs' spam processing program, and therefore cannot be evaluated for compliance with regulations that pertain to content. Other emails have had images removed by Plaintiffs' spam processing program, including images relevant to Defendants' CAN-SPAM compliance (such as images containing a postal address). 18. Except for those emails with some or all of their content stripped out by

Plaintiffs, none of the emails lacked a postal address or an "unsubscribe" link or other opt-out mechanism; and all emails were identified or are identifiable as advertisements. 19. For each email reviewed, we logged whether the subject line was false or

misleading. In almost every instance, our review found that reading the emails' subject lines in the context of their associated from name rendered the subject line obviously commercial in nature and clear as to the product or service referred to in the ad. For example, one email we reviewed has the subject line "Attention Moms." This email is from "Work From Home." That subject line and from name combination clearly indicates
DECL. OF DEREK LINKE IN SUPP. OF DEFS.' MOT. FOR SUMM. J. - 3 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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both the commercial nature of the email and indicates the kind of content provided in the email. Another email, with the subject line "Just what you're looking for understanding" is from "First Premier Bank." That combination of subject line and from name when read together left no doubt as to the commercial nature of the email or to the fact that the email related to financial or banking services. 20. Defendants' subject lines when viewed in context (i.e., with the associated

"from" name) are not materially false or misleading. 21. Attached hereto as Exhibit F is a true and accurate copy of the signature

page from Plaintiff Gordon's Answers and Responses to Defendant Adknowledge's First Interrogatories and Requests for Production of Documents to Gordon. 22. Attached hereto as Exhibit G is a true and accurate copy of the first page

from Plaintiff Omni's Answers and Responses to Defendant Virtumundo's First Interrogatories and Requests for Production of Documents to Omni. 23. Attached hereto as Exhibit H is a true and accurate copy of Defendant

Virtumundo's First Interrogatories and Requests for Production of Documents to Omni, Interrogatory No. 22. 24. Attached hereto as Exhibit I is a true and accurate copy of Plaintiff Omni's

Answers and Responses to Defendant Virtumundo's First Interrogatories and Requests for Production of Documents to Omni, Answer to Interrogatory No. 22. 25. Attached hereto as Exhibit J is a true and accurate copy of Defendant

Virtumundo's First Interrogatories and Requests for Production of Documents to Gordon, Interrogatory No. 22. 26. Attached hereto as Exhibit K is a true and accurate copy of Plaintiff

Gordon's Answers and Responses to Defendant Virtumundo's First Interrogatories and Requests for Production of Documents to Gordon, Answer to Interrogatory No. 22. 27. Microsoft Corp., through its MSN division, is an internet access service

provider that offers dial-up internet access. A true and correct copy of a page from MSN's web site describing this internet access service is attached as Exhibit L hereto.
DECL. OF DEREK LINKE IN SUPP. OF DEFS.' MOT. FOR SUMM. J. - 4 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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28.

EarthLink, Inc. is an internet access service provider that offers broadband

and dial-up internet access. A true and correct copy of a page from EarthLink's web site describing this internet access service is attached as Exhibit M hereto. 29. AOL, LLC is an internet access service provider that offers broadband and

dial-up internet access. A true and correct copy of a page from AOL's web site describing this internet access service is attached as Exhibit N hereto. 30. Yahoo, Inc. is an internet access service provider that offers broadband

internet access. A true and correct copy of a page from Yahoo's web site describing this internet access service is attached as Exhibit O hereto. I certify and declare under the penalty of perjury under the laws of the State of Washington and the United States that to my knowledge the foregoing is true and correct.

Executed on this 22nd day of January, 2007, at Seattle, Washington. /S/ Electronic Signature Derek Linke

DECL. OF DEREK LINKE IN SUPP. OF DEFS.' MOT. FOR SUMM. J. - 5 (CV06-0204JCC)

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]