Response to Supplemental Reply to Motion to Dismiss

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.

Attachment	Date	Size
MotDismissContemptSuppResponse.pdf	09/18/08 11:15 am	3.31 MB

Supplemental Response to Motion to Dismiss

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:

• SLKS, Inc.
• Smartbargains
• Bookspan
• Quinstreet
• Traffic Marketplace
• Silver Carrot
• OptinRealBig.com, LLC
• Loyalty Matrix (since purchased by Responsys)
• Liberty Mutual Insurance
• Acxiom e-Products, Inc.
• Topica, Inc.
• Virtumundo, Inc.
• Impulse Marketing Group, LLC
• Q Interactive

Attachment	Date	Size
MotDismissContemptSuppReply.pdf	09/13/08 9:40 am	2.59 MB

Supplemental Affidavits

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.

Attachment	Date	Size
MotDismissSuppAffidavits.pdf	09/26/08 3:14 pm	136.58 KB