Yours truly has been on vacation for the past 9 days, but that hasn't stopped the e360 Insight v. Spamhaus case from moving forward.
The exhibits are kind of fun to read, especially the first one wherein Judge Kocoras seems rather... displeased with e360 and their treatment of discovery in the case.
MINUTE entry before the Honorable Charles P. Kocoras: Motion hearing held on 7/30/2008. Defendant's motion for various relief for persistent discovery defaults is granted in part and denied in part. Plaintiffs are ordered to pay the Court Reporter costs associated with the cancelled depositions of David Linhardt. Linhardt's deposition is ordered to be completed by 9/30/2008. Plaintiffs are ordered to pay defendant $200.00 as sanctions. Plaintiffs are given to 8/13/2008 to comply with all outstanding interrogatories. No new discovery may be propounded by either party.
And it's come to this.
Spamhaus has filed its Motion to Dismiss alleging that e360 has just disregarded the Court's latest order mandating full and complete responses to discovery requests.
The only interesting thing in the exhibits is the addition of the transcript from the 7/30/08 hearing wherein Judge Kocoras allows his displeasure with e360's discovery games.
This is e360's reply to Spamhaus' motion to dismiss.
"My lawyer ate my discovery responses" seems to be the order of the day as e360's attorneys try to blame a former attorney at the firm for not sending their discovery answers first and then blame Spamhaus' attorneys for not bringing this shortcoming to their attention sooner for STILL not filing their discovery responses.
Here is Spamhaus' response to e360's "The Lawyer Ate My Discovery Responses" attempt.
It is really rather predictable in that Spamhaus responds that even if Daniel Peters is the devil himself, that it doesn't excuse the lack of timely response, it doesn't excuse the pattern of abuse that has happened over the last 10 months, and Spamhaus also sent Bartly Loethen an email that summarized the Court's order, and then followed that up with the actual transcript of the hearing, so that "The Lawyer Ate My Discovery Responses" is really a laughable assertion. They also point out that having a busy trial schedule is no excuse for e360's attorneys not meeting their obligations in this case.
Spamhaus spends quite a bit of time emphasizing that this has been going on for ten months now, and we have been through three motions to compel and a motion for sanctions before this, whereas Spamhaus is in default after missing only one 30 day deadline. They also say that the supplemental responses e360 and Linhardt have provided still say "look at the documents we sent you" and that there were no substantive changes to 10 of the 18 interrogatories. Spamhaus' counsel is also astounded that e360 has suddenly added 16 new parties and increased its damages calculations by 1100%, all after the close of discovery (meaning that the new parties cannot be deposed to see what they know).
They also include, in their exhibits, the transcript of the hearing on September 4, 2008. It's pretty obvious that Judge Kocoras is getting pretty fed-up with e360. At one point, he says that e360's prior responses to orders of the court is "a little insulting" (p. 23 of the PDF).
However, I also get the feeling that the Judge is reluctant to grant Spamhaus' motion. Spamhaus is certainly trying hard though.
This is the continuation of e360's "The Lawyer Ate My Discovery Responses" parade. Apparently, according to e360's argument, Daniel Peters is the terrible attorney responsible for not getting things done on time. He's no longer with the firm, and all of the blame for not getting discovery responses in on time should be laid squarely at his feet. And that's their story and they're sticking to it.
Anyway, they are also proving their desire to move forward with the case by attaching their discovery responses. So, we can see their damages claims (Spamhaus cost them between $95M and $135M) and a list of broken contracts (ISPs that cut them off and companies they were advertising for).
Of significance here is the claim that e360 has now sued itself out of business. On page 39 of the document (page 28 of e360's Interrogatory responses) it says, "The negative impact on e360's business has been completely devastating. e360 is now out of business. e360 ceased operations at the end of 2007 as a direct result of Spamhaus actions. Because of the devastating impact of these statements to e360's reputation, e360 can no longer operate as an email marketing company." And, on page 47 of the document (page 36 of e360's Interrogatory responses) you see this: "Ultimately, e360's reputation was irreparably harmed by Spamhaus actions which directly attributed [sic] to e360 [sic] ultimate demise."
So, if you have ever wondered who would buy services from a company that "[s]ome, perhaps even a majority of people in this country, would call ... a spammer"? In this filing, they'll tell you in the discovery responses they attached.
The list includes:
Just so everyone is clear on how well communication happens in the offices of the Synergy Law Firm, they have filed three affidavits, from Daniel Peters (the evil attorney who didn't file the discovery supplement on time), Bartly Loethen (who was really responsible for filing the discovery supplement on time since Peters left the firm), and David Lindhart (who sued himself out of work).
Peters says that he was leaving and didn't think he was responsible for filing the supplement.
Loethen says that he was a very busy lawyer and was really displeased with the judge's order that he should have to supplement discovery responses while he was out of town taking care of another trial. And really dude, I would have been mad too, it's been almost a year now. It isn't like this deadline had not already come and gone back in December of 2007. If your lawfirm hadn't been engaging in gamesmanship, perhaps your trial dates would have been easier, no?
Lindhart says that he just did what his lawyers told him to do.
Judges are loathe to dismiss cases and Judge Kocoras is no exception. He denies Spamhaus' motion to dismiss, but strikes the new people introduced in e360's responses, and all of their evidence about damages in excess of the $11.2 million claimed in the default.
People will think that this is a loss for Spamhaus, and maybe you can see it like that, but it's a much larger loss for e360. Now, their damages are capped. And, in trying to justify the $11.2 million in damages that they can still try to prove up, they can't call upon any of the 16 newly named people to support their case. That will make it more difficult to prove what's left of their case.
[UPDATE: Here's the list of people that he can call at the damages hearing as a witness: Dave Linhardt.
Here is the answer to Interrogatory #2 (people with knowledge of relevant facts): Dave Linhardt ("Linhardt"); counsel for e360 and Linhardt; Virgil Smith; Robert Horn; Mike Klein; Andrew Canellos; Jeff Nulsen; John Wright; Brian Haberstroh; Bill Farrell; John Rudnick; Darren Green; Michael Girard; Jerrold Son; Laura Cruz; Thomas Honec; Lynn Hoover; and Steve Chisholm
Here is the answer to Interrogatory #3 (people who may be called as witnesses by the Plaintiff): Dave Linhardt; Virgil Smith; Robert Horn; Mike Klein; Andrew Canellos; Jeff Nulsen; John Wright; Brian Haberstroh; Bill Farrell; John Rudnick; Darren Green; Michael Girard; Jerrold Son; Laura Cruz; Thomas Honec; Lynn Hoover; and Steve Chisholm
Now, start at the back of those lists and count off 16. Whoever is left may be called as a witness.]
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This matter comes before the court on the motion of Defendant The Spamhaus Project (“Spamhaus”) for relief pursuant to Fed. R. Civ. P. 37(B)(2)(A). The motion comes after a long and involved discovery battle revolving around responses to interrogatories. Spamhaus initially propounded the interrogatories to Plaintiffs e360 Insight, LLC, and David Linhardt on November 30, 2007. Plaintiffs did not comply with their discovery obligations with respect to these interrogatories until September 12, 2008.
Plaintiffs’ delay and the resultant wrangling have caused a significant expenditure of time and effort on the part of Spamhaus and this court. The relief Spamhaus has primarily requested, dismissal of the entire action with prejudice, is in our view too onerous a remedy for the wrong it seeks to correct. However, the fact remains that the course of action Plaintiffs have pursued is unacceptable. Moreover, the September 12 responses identify 16 new parties as having knowledge or information pertinent to the case and contend that the level of damages at issue is not the initial $11.7 million Linhardt claimed but instead various amounts totaling over $135 million. Discovery closed more than a month before Plaintiffs provided their interrogatory responses, preventing Spamhaus from being able to probe further into this new information. Accordingly, we order stricken the 16 new names provided in e360 Insight’s Supplemental Amended Responses to Interrogatories 2 and 3 as well as any amounts stated in the Supplemental Amended Responses to Interrogatories 16 and 17 in excess of $11.7 million.
In addition, pursuant to Rule 37(b)(2)(C), we order Plaintiffs to pay the reasonable expenses, including attorneys’ fees, incurred in connection with the instant motion.