Gordon v. Virtumundo Inc et al

Filing 73

DECLARATION of Derek Linke filed by Defendants Virtumundo Inc, Adknowledge Inc, Scott Lynn re 71 MOTION to Compel Segregation of Emails (Attachments: # 1 Exhibit A - Feb 2, 2006 Letter from Plaintiff's Counsel# 2 Exhibit B - Nov. 14, 2006 Letter from Plaintiff's Counsel# 3 Exhibit C - Gordon's Discovery Explanation# 4 Exhibit D - Nov. 29, 2006 Letter to Plaintiff's Counsel# 5 Exhibit E - Dec. 5, 2006 Email from Plaintiff's Counsel# 6 Exhibit F- Dec. 20, 2006 Letter from Plaintiffs' Counsel# 7 Exhibit G - Dec. 21, 2006 Letter to Plaintiffs' Counsel)(Newman, Derek)

Gordon v. Virtumundo Inc et al

Doc. 73

Case 2:06-cv-00204-JCC

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.

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, No. CV06-0204JCC DECLARATION OF DEREK LINKE IN SUPPORT OF DEFENDANTS' MOTION TO COMPEL NOTE ON MOTION CALENDAR: January 5, 2007

I, Derek Linke, swear under penalty of perjury under the laws of the United States of America to the following: 1. I am a contract attorney for Newman and Newman, Attorneys at Law, LLP, counsel of record for Defendants Virtumundo, Inc. ("Virtumundo") and Adknowledge, Inc. ("Adknowledge"), am over age 18, and competent to be a witness. I am making this Declaration based on facts within my own personal knowledge. // //
DECL. OF DEREK LINKE IN SUPP. OF DEFS.' MOT. TO COMPEL DISCOVERY - 1 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Dockets.Justia.com

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A.

PLAINTIFFS' FIRST AND SECOND PRODUCTION OF EMAILS 2. 3. 4. On or about February 24, 2006, Defendants received Plaintiffs' First Attached hereto as Exhibit A is a true and accurate copy of the cover letter Plaintiffs' First Production consists of a CD-ROM disc containing two (2)

Production ("First Production") with a cover letter dated February 16th, 2006. received by Defendants' counsel that accompanied the First Production. mailbox archives in Eudora format containing email allegedly giving rise to Plaintiffs' cause of action. 5. 6. On or about July 25, 2006, Defendants received Plaintiffs' Second Plaintiffs' Second Production consists of a CD-ROM disc containing an Production ("Second Production") with no accompanying cover letter. additional two (2) Eudora mailbox archives containing email allegedly giving rise to Plaintiffs' cause of action. 7. 7,016 emails. B. DEFENDANTS REVIEW OF PLAINTIFFS' EMAILS 8. Beginning on or about November 16, 2006, Defendants' counsel engaged a The mailbox archives contained in the Second Production are "Virtumundo.mbx," containing 5,047 emails, and "Virtumundo - Omni.mbx," containing

team of seven contract attorneys to create a comprehensive log of all of the emails contained in the First Production and the Second Production and their compliance with 15 U.S.C. § 7701 ("CAN-SPAM") and the Washington Commercial Email Act, RCW 19.190. 9. We trained the contract attorneys on the review process and the relevant law and spent nearly two weeks reviewing all of the emails in the First Production and the Second Production. 10. The review of all of the emails in the First Production and the Second Production required approximately 500 hours of work by the contract attorneys at a cost of tens of thousands of dollars to Defendants.
DECL. OF DEREK LINKE IN SUPP. OF DEFS.' MOT. TO COMPEL DISCOVERY - 2 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C.

11.

Upon completion of the project on or about December 3, 2006, the contract

attorneys terminated their involvement with Defendant's counsel. PLAINTIFFS' THIRD PRODUCTION OF EMAILS 12. On or about November 29, 2006, Defendants received Plaintiffs' ("Third

Production"). Although the Third Production was accompanied by a cover letter dated November 14, 2006, Plaintiffs included an additional note about the production dated September 27, 2006, and digital files with modification dates of September 9, 2006 and September 13, 2006. 13. The dates on the additional note included in the Third Production and on the produced archives indicate that Plaintiffs could have produced the evidence contained in The Third Production much earlier than they actually did. 14. 15. Production. 16. 17. Plaintiffs' Third Production consists of a CD-ROM disc containing email The archives produced in Plaintiffs' Third Production have the same file stored in Eudora's mailbox archive format. names as archives produced in the First Production and the Second Production but contain many additional emails. The archives are "Virtumundo.mbx," containing 8,124 emails, and "Virtumundo - Omni.mbx," containing 11,201 emails. 18. We estimate that around 9,000 messages in the Third Production were previously produced in the First Production and the Second Production, these emails must also be individually analyzed by Defendants to assess potential liability in this case. 19. Attached hereto as Exhibit D is a true and accurate copy of a letter sent by Defendants to Plaintiffs' counsel on November 29, 2006, containing objections to the form and manner of Plaintiffs' Third Production.
DECL. OF DEREK LINKE IN SUPP. OF DEFS.' MOT. TO COMPEL DISCOVERY - 3 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Attached hereto as Exhibit B is a true and accurate copy of the cover letter Attached hereto as Exhibit C is a true and accurate copy of the additional

received by Defendants' counsel that accompanied Plaintiffs' Third Production. note from Plaintiffs, dated September 27, 2006, detailing the contents of the Third

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20. 21.

As of this date, Defendants have been unable to segregate any new emails Attached hereto as Exhibit F is a true and accurate copy of a letter from

contained in the Third Production from emails previously provided. Plaintiffs' counsel dated December, 20, 2006 in which Defendants appear to be unwilling to assist us in understanding their production in this case. 22. The emails in Plaintiffs' Third Production are hopelessly disorganized and unduly burdensome for Defendants to parse and understand. DEFENDANTS' BURDEN TO REVIEW PLAINTIFFS' THIRD PRODUCTION 23. If Defendants' counsel had received Plaintiffs' Third Production prior to

November 16, by the beginning of our comprehensive review, the new messages could have been included in our review process, thus avoiding substantial prejudice to Defendants. 24. Attached hereto as Exhibit E is a true and accurate copy of an email sent by Plaintiffs' counsel to Derek Newman, of this firm, advising that Eudora provided a software utility relating to sorting mail by date that would automatically segregate the emails which had been previously produced. 25. I have performed a diligent inquiry and have concluded that Eudora does not contain any utility to compare mailboxes, not any utility to remove duplicate emails, nor any utility that could segregate the previously produced emails unless information identifying such emails were already available. 26. Additionally, the process of sorting by date will not permit us to identify all additional emails because while a date sort might identify any new emails, which would appear at the end of the date range, it would not suffice to identify any new emails within the date range of the emails from the First Production or the Second Production. 27. Attached hereto as Exhibit F is a true and accurate copy of a letter sent by Plaintiffs' counsel on December 20, 2006, in which he refused to commit to producing only the new emails, they have not in fact been produced.
DECL. OF DEREK LINKE IN SUPP. OF DEFS.' MOT. TO COMPEL DISCOVERY - 4 (CV06-0204JCC)

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

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

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28.

In a final attempt to eliminate the Court's involvement in this dispute,

Roger Townsend of this firm sent a letter to Plaintiffs' counsel, dated December 21, 2006, a true and accurate copy of which is attached as Exhibit G. 29. Attached hereto as Exhibit H is a true and accurate copy of an email sent by Plaintiffs' counsel to Derek Newman and Roger Townsend, of this firm, on December 21, 2006, in which Plaintiffs' counsel stated that he would consult with his client, but refused to commit to producing only the new emails. 30. Thus, there was and remains no obvious means of segregating any new emails that may be contained in the Third Production from the thousands of duplicative messages that had previously been produced in the First Production and the Second Production. The only means of comparing them appears to be by undertaking a manual, one-by-one review of all of the thousands of emails included in the Third Production. 31. Furthermore, even if we were able to segregate any new emails contained in the Third Production, Plaintiffs' inexplicable delay in producing the emails contained in the Third Production until the end of our comprehensive review meant that we were unable to have the contract team review them prior to ending our relationship with them. 32. In order to review those additional messages now, Defendants would have to compare all of the new messages contained in Plaintiffs' Third Production, with our completed log or begin a new extensive document review. Either option would cost the client tens of thousands of dollars in additional fees. 33. Also, it is unknown whether the contract attorneys that have already been trained to review the emails in this case would be available again or whether we would have to locate and train a new group of attorneys, at considerable expense to Defendants. // // // // //
DECL. OF DEREK LINKE IN SUPP. OF DEFS.' MOT. TO COMPEL DISCOVERY - 5 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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