Spamhaus' Response in Partial Opposition to Motion for Expanding Time for Discovery

If you don't respond to discovery in the time set, you lose the ability to object to it. That's the lesson here.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

e360 INSIGHT, LLC, an Illinois Limited Liability Company, and DAVID LINHARDT,
an individual,
Plaintiffs,

v.

THE SPAMHAUS PROJECT, a company limited by guarantee and organized under the laws of England, a/k/a THE SPAMHAUS PROJECT, LTD.,
Defendant.

DEFENDANT THE SPAMHAUS PROJECT'S RESPONSE IN PARTIAL OPPOSITION TO PLAINTIFFS' MOTION FOR EXTENSION OF DISCOVERY

INTRODUCTION

Defendant The Spamhaus Project ("Spamhaus") does not oppose an extension in the time for fact discovery on the damages claims of Plaintiffs e360 Insight, LLC ("e360") and David Linhardt (collectively "Plaintiffs"). Indeed, as demonstrated below, Plaintiffs' continued complete failure to respond to Spamhaus' document requests served on November 30, 2007, failure to provide basic information in response to interrogatories served on the same day, and failure to show up at the depositions properly noticed for January 7-8, 2008 -- without seeking or obtaining any extension from Spamhaus or this Court -- requires such an extension of fact discovery. In fact, during the Rule 37.2 conference referenced in Plaintiffs' motion, we agreed to a fact discovery extension. However, when Plaintiffs sent us their proposed motion, they overreached in two respects to which we cannot agree. There are two aspects of Plaintiffs' deceptively simple motion which the Court should not adopt.

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First, the Court should reject the request in Plaintiffs' motion for a retroactive extension in their time to answer Spamhaus' written discovery requests. Because Plaintiffs let the time for their answers expire on January 2, 2008 without seeking an extension from the Court or Spamhaus until more than a month after the deadline, and because they have offered no explanation or excuse for their default, their objections are waived.

Second, while Spamhaus has no objection to setting an expert discovery schedule, Plaintiffs' proposal to give Spamhaus 15 days to make its expert disclosures -- after taking more than four months to make its own disclosures -- is insufficient and unfair. Spamhaus requests that it have at least 45 days after Plaintiffs' disclosures to make its own in this case seeking more than $11 million in damages.

BACKGROUND

On August 30, 2007, the Seventh Circuit reversed the damages award and remanded the case to this Court "for a more extensive inquiry into the damages to which e360 is entitled." e360 Insight, LLC v. The Spamhaus Project, 500 F.3d 594, 603 (7th Cir. 2007). After the remand for a determination on damages, Plaintiffs and Spamhaus appeared before this Court on October 23, 2007. (Ex. 1.) At that time, this Court granted discovery on the issue of damages. (Id. at 4:19-21.) Pursuant to the Court's order, Spamhaus served its First Requests for the Production of Documents and its First Sets of Interrogatories on Plaintiffs on November 30, 2007. (Ex. 2.)

During a December 5, 2007 status hearing, this Court ordered the close of discovery on February 28, 2008. (Ex. 3. at 5:17-22.) At that time, Spamhaus expressed its concern that a February 28, 2008 date may present a problem with the ability to conduct expert discovery. (Id. at 7:2-10.) Plaintiffs, however, specifically requested the early discovery close date, and the
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Court indicated a willingness to consider the need for expert discovery after fact discovery closed. (Id. at 4:2-6, 5:23-25.)

Despite Plaintiffs' request for an early discovery close date, Plaintiffs have caused significant delays in the discovery process. Plaintiffs' responses to Spamhaus' First Requests for the Production of Documents and First Sets of Interrogatories were due on January 2, 2008. Plaintiffs neither responded to the discovery requests on the due date nor contacted Spamhaus to provide any notice of a delay or request an extension of time. As a result, Spamhaus contacted Plaintiffs on January 3, 2008 requesting that Plaintiffs send their responses immediately. (Ex. 4) Plaintiffs' counsel left a voicemail message on January 4, 2008, saying that Spamhaus would receive the responses "soon." However, Plaintiffs' counsel failed to provide a specific date by which they would respond to the discovery requests or a reason for the delay in complying with the discovery requests.

Although Spamhaus had served notices of deposition on David Linhardt and a Rule 30 (b)(6) witness for January 7, 2008 and January 8, 2008 respectively (Ex. 5), Spamhaus still had not received Plaintiffs' discovery responses on January 8, 2008. Plaintiffs also did not appear for their depositions; nor did they object to the notices or ask to arrange a different time or date for their depositions. Spamhaus again contacted counsel for Plaintiffs. During a telephone conversation, Spamhaus informed Plaintiffs' counsel that it considered Plaintiffs' failure to timely respond in any fashion to Spamhaus' discovery requests as a waiver of any objections Plaintiffs may have had to the requested discovery. Plaintiffs' counsel merely responded that everyone had reviewed the discovery responses and Spamhaus should receive them "soon." When Spamhaus' counsel requested a firm date for the responses, Plaintiffs' counsel stated that he would "check." However, during a telephone call later that same day,
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Plaintiffs' counsel again refused to provide a delivery date for their responses or any reason for their extensive delay in complying with the discovery requests.

On January 10, 2008, Spamhaus' counsel sent an email to Plaintiffs' counsel again noting that Plaintiffs had not requested nor received an extension of time for complying with the discovery requests (Ex. 6.) Spamhaus informed Plaintiffs that if the requested discovery materials were not received by the close of business on January 11, 2008, Spamhaus was formally requesting a Local Rule 37.2 conference on January 14, 2008, to discuss Plaintiffs' delinquent response to Spamhaus' discovery requests. (Id.)

Spamhaus did not receive any response from Plaintiffs' counsel by the close of business on January 11, 2008. As a result, on January 14, 2008, Spamhaus' counsel sent a follow-up email to Plaintiffs' counsel. (Ex. 7.) Plaintiffs' counsel responded that they would provide responses to the interrogatories by the end of the week (January 18, 2008) and responses to the document requests by the end of January. (Ex. 8.) On January 15, 2008, in an attempt to avoid unnecessary motion practice, Spamhaus' counsel agreed to delay filing a motion to compel based on Plaintiffs' counsel's representations. (Ex. 9.) Spamhaus' counsel reiterated that because Plaintiffs did not request and Spamhaus did not consent to an extension of time, Spamhaus' position is that Plaintiffs have waived any objection that they may have otherwise had. (Id.)

Plaintiffs failed to provide their responses to the interrogatories by January 18, 2008. As a result, Spamhaus' counsel sent a follow-up email to Plaintiffs' counsel on January 22, 2008. (Ex. 10.) After an email exchange about a potential protective order (Ex. 11), Plaintiffs sent their responses to Spamhaus' First Set of Interrogatories. (Ex. 12 at 4-5.) However, the responses were deficient and inadequate.

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On January 24, 2008, Spamhaus' counsel emailed Plaintiffs' counsel detailing the deficiencies in Plaintiffs' responses and requesting a Rule 37.2 conference.(Ex. 12 at 4.)

Plaintiffs' counsel failed to respond to Spamhaus' request for a Rule 37.2 conference. Therefore, Spamhaus sent another follow-up email on January 28, 2008, requesting a Rule 37.2 conference. (Ex. 12 at 1.) Plaintiffs' counsel responded on January 29, 2008, requesting an extension of the discovery deadlines. (Ex. 13.) Plaintiffs requested that their deadline to respond to written discovery be extended to February 18, 2008, that Plaintiffs disclose any experts by March 17, 2008, that Spamhaus disclose any experts by April 14, 2008, and that all discovery close by May 5, 2008.

Despite their own failure to respond to Spamhaus' discovery requests, Plaintiffs served their First Requests for the Production of Documents and First Sets of Interrogatories on Spamhaus on December 28, 2007. On January 30, 2008, Spamhaus filed its timely responses to Plaintiffs' discovery requests, which contained objections and provided both written responses to interrogatories and the request for production of documents. (Ex. 14.) Spamhaus additionally provided the documents it received in response to third-party subpoenas it had served. (Id.) That same day, Plaintiffs' counsel responded to Spamhaus' discovery responses by requesting a Rule 37.2 conference and expressing their intention to file a motion to compel. (Ex. 15.)

Plaintiffs failed to produce any documents in response to Spamhaus' document requests, as promised in their January 14, 2008 email, by the end of January. As a result, from January 30, 2008 to February 4, 2008, Spamhaus' counsel repeatedly requested and attempted to schedule a Rule 37.2 conference with Plaintiffs' counsel. (Ex. 16.) Counsel for Spamhaus and Plaintiffs met on February 5, 2008 for a Rule 37.2 conference. During that meeting, the parties agreed that additional time to complete the fact discovery would be necessary. The parties agreed that
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Plaintiffs' counsel would draft a proposed motion requesting an extension of time to conduct fact discovery and that Spamhaus would not object to the relief requested. While reserving all rights to make all objections to the discovery responses, the parties also agreed not to file any motions to compel without having an additional Rule 37.2 conference, at least until the Court ruled on a motion to extend time for fact discovery.

Spamhaus received Plaintiffs' proposed motion for extension of discovery schedule on February 7, 2008. (Ex. 17.) Plaintiffs' proposed motion contained a very detailed request for a discovery schedule. Spamhaus responded to the proposed motion by emailing Plaintiffs' counsel on February 8, 2008. (Ex. 18.) Spamhaus indicated that Plaintiffs' motion could not be filed as agreed for two reasons. (Id.) First, Spamhaus stated that it is not opposed to requesting an expert schedule, but would require at least 45 days after the close of fact discovery and Plaintiffs' disclosure of their experts before it can disclose its experts. (Id.) As discussed during the February 5, 2008 meeting, Spamhaus had informed Plaintiffs' counsel that any other expert schedule would be insufficient because Plaintiffs will have had 4 months to disclose their experts. Second, Spamhaus again reiterated its position that due to Plaintiffs' failure to provide timely responses, Plaintiffs have waived any objections to Spamhaus' Requests and Interrogatories, and that any agreed motion would have to preserve Spamhaus' position on that issue. (Id.) Plaintiffs refused to make the requested changes. (Ex. 19 at 2.)

ARGUMENT
We have made every effort to move discovery along, as both the Court and Plaintiffs indicated was their desire. However, it is Spamhaus that needs discovery from Plaintiffs' on Plaintiffs' damages claims, and Plaintiffs have defaulted on their obligations for more than 39 days of the four month discovery period they requested, despite diligent follow up from
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Spamhaus. Consequently, we respectfully agree that an extension in fact discovery is necessary, and we do not object to the period requested by Plaintiffs.

However, we request that any order entered by the Court contain two deviations from Plaintiffs' proposal. First, the Court should not extend the time for Plaintiffs to respond to written discovery without also indicating that Plaintiffs' objections to written discovery are waived. As detailed above, Plaintiffs have completely disregarded the time frames established and required by the Federal Rules of Civil Procedure. For interrogatories, under Rule 33(b)(2), "[t]he responding party must serve its answers and any objections within 30 days after being served with the interrogatories." Additionally, the amount of time allowed to respond to requests for production is clearly established in Rule 34(b)(2)(A), which states that "[t]he party to whom the request is directed must respond in writing within 30 days after being served".

The Rules clearly establish that when a party fails to serve a timely response, any objections are waived. Fed. R. Civ. P. 33 (b)(2); Fed. R. Civ. P. 34 (b)(2)(A). Plaintiffs' responses to Spamhaus' discovery requests were due on January 2, 2008. However, as discussed above, Plaintiffs failed to timely request an extension of time from Spamhaus or this Court. Instead, Plaintiffs totally ignored the due date. Plaintiffs' failed to provide any interrogatory responses until January 22, 2008 -- 20 days past the due date as required by Fed. R. Civ. P. 33 (b)(2). As of February 11, 2008, Plaintiffs' have failed to answer or provide any documents in response to Spamhaus' Request for Production -- 39 days past the due date as required by Fed. R. Civ. P. 34(b)(2)(A).

By failing to respond to Spamhaus' interrogatory requests within thirty days, the Plaintiffs have waived any objections they may have raised. Under Federal Rule of Civil Procedure 33(b)(4), "[a]ny ground not stated in a timely objection is waived unless the court, for
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good cause, excuses the failure." As the Plaintiffs have not made any timely objection to Spamhaus' discovery requests and have not offered any explanation for their failure to respond, any objections to Spamhaus' First Set of Interrogatories are waived. Similarly, because Plaintiffs failed to responded to Spamhaus' First Requests for Production of Documents within the thirty day timeframe, and have in fact still not provided any answer or documents in response, any objections Plaintiffs may have to Spamhaus' First Requests for Production of Documents are waived. Under Fed. R. Civ. P. 34(b)(2), objections are to be filed with the response, which must be filed within 30 days after service.

Second, if the Court enters an expert discovery schedule, it should provide Spamhaus at least 45 days after Plaintiffs make their expert disclosures to make its own disclosures. Plaintiffs will have had more than four months after discovery commenced to make their expert disclosures -- on a claim which they submitted a sworn prove-up affidavit more than 18 months ago. Since the case was remanded from the Seventh Circuit, Plaintiffs have had almost six months to put their damages case together. Fundamental fairness entitles Spamhaus to at least 45 days to find and disclose opinions from its experts to respond to Plaintiffs' experts on a claim seeking more than $11 million.

Respectfully submitted,

THE SPAMHAUS PROJECT

Dated: February 13, 2008

By: s/David Jimenez-Ekman
Craig C. Martin
David Jimenez-Ekman
Carrie A. Fino
JENNER & BLOCK LLP
330 North Wabash Avenue Chicago, IL 60611
Telephone: (312) 222-9350
Facsimile: (312) 527-0484

Status hearing

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Thursday, February 14, 2008:

MINUTE entry before Judge Charles P. Kocoras :Motion hearing held on 2/14/2008. Plaintiff's motion [139] for an extension of the discovery schedule is granted as discussed in open court. All fact discovery to be completed by 4/28/2008. Plaintiff to disclose its expert and supply the expert's report by 4/28/2008. Status hearing is reset from 2/28/2008 to 5/6/2008 at 9:30 a.m.

MINUTE entry before Judge Charles P. Kocoras:Status hearing is reset from 8/5/2008 to 8/19/2008 at 9:30 a.m. Mailed notice (sct, ) (Entered: 05/12/2008)