Motion to Quash

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’S MOTION TO QUASH CITATION TO DISCOVER ASSETS
NOW COMES the Defendant The Spamhaus Project, by and through its attorneys Jenner & Block LLP, and requests that this Court quash the citation to discover assets under Federal Rule of Civil Procedure 34(b).1
In support of this Motion, Defendant states as follows:
1. For the reasons stated in the separate Motion to Vacate, which is incorporated herein by reference, Defendant expressly objects to the enforcement of the Citation to Discover Assets based on this Court’s lack of personal jurisdiction. The Citation commands that an individual appear on behalf of The Spamhaus Project and present documents relating to the Company’s assets. However, the individual commanded to appear does not reside in the United
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1 Defendant expressly objects to this Court’s jurisdiction over The Spamhaus Project because it is based solely in the United Kingdom and does not conduct or transact business in Illinois. Moreover, Defendant reserves its arguments based on Plaintiff’s failure to properly effect service of process. These objections are made notwithstanding Defendant’s filing of this motion, and had previously been raised in the Notice of Removal and the Answer that was withdrawn with leave of this Court.
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States, and is not subject to the subpoena power of this Court. Furthermore, The Spamhaus Project is not subject to personal jurisdiction in any Illinois court because it is based solely in the United Kingdom and does not conduct or transact business in Illinois.
2. The Citation to Discover Assets should be also be denied as premature because of the outstanding Motion to Vacate and Motion to Stay that were filed contemporaneously with this Motion to Quash.
2. If this Court requires any additional basis for the granting of the Motion to Quash, we respectfully request a briefing schedule.
3. Additionally, even if the Court finds that the Citation to Discover Assets is proper and orders that the Defendant must comply, the information requested necessitates the entering of a protective order under Federal Rule of Civil Procedure 26(c), because it consists of confidential proprietary information. By the terms of the Citation, the information requested calls for non-public financial and proprietary information.
WHEREFORE, Defendant The Spamhaus Project respectfully requests that this Court enter an order quashing the Citation to Discover assets under Federal Rules of Civil Procedure 34(b).
Respectfully submitted,
THE SPAMHAUS PROJECT
Dated: October 26, 2006 By: s/Matthew M. Neumeier_________
Matthew M. Neumeier
Craig C. Martin
Carrie A. Fino
JENNER & BLOCK LLP
330 North Wabash Avenue
Chicago, IL 60611
Telephone: (312) 222-9350
Facsimile: (312) 527-0484

Response to Citation to Discover Assets

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’S RESPONSE TO CITATION TO DISCOVER ASSETS
NOW COMES the Defendant The Spamhaus Project and responds as follows to Plaintiff’s Citation to Discover Assets:1
1. Any and all corporate minute books maintained by The Spamhaus Project, LTD;
ANSWER: Spamhaus does not hold corporate meetings. Spamhaus will provide the company documents setting it up as a Limited Liability Company.
2. Any and all monthly, quarterly, annual and/or all other accounting and financial statements, including but not limited to payroll and accounts receivable records, prepared by or on behalf of The Spamhaus Project, LTD for the past three years;
ANSWER: As a non-profit company, Spamhaus does not have any accounting or financial statements other than one tax return addressed in response to number seven. Spamhaus does not employ any formal accounting procedures throughout the year. Rather, at the end of the
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1 Defendant expressly objects to this Court’s jurisdiction over The Spamhaus Project because Defendant is based solely in the United Kingdom and does not conduct or transact business in Illinois. Moreover, Defendant reserves its arguments based on Plaintiff’s failure to properly effect service of process. These objections are made notwithstanding Defendant’s good faith effort to comply with this Court’s order that it respond to the Citation to Discover Assets.
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year, Spamhaus’ accountant determines how much money Spamhaus received throughout the year through donations, but no formal accounting or financial statements are done. The company does not have any employees and there are no payroll records. The company does not have any accounts receivable records.
3. Any and all information regarding any and all stocks, funds, bonds, securities and/or other investments or other assets held, gained, sold or lost by The Spamhaus Project, LTD or otherwise associated with The Spamhaus Project, LTD in any way, for the past three years;
ANSWER: Spamhaus does not have any stocks, funds, bonds, securities or any other investments. Spamhaus’ assets consist only of one Macintosh computer and a bank account located in London, United Kingdom for approximately $14,000, which are addressed in response to number six and nine.
4. Any and all information regarding any and all property, both real and personal, held, bought, sold, transferred, exchanged, leased, deeded or otherwise acquired, lost or otherwise maintained by or on behalf of The Spamhaus Project, LTD for the past three years, such information should include title to any vehicles owned or otherwise controlled by The Spamhaus Project, LTD and deeds to any real property owned or maintained by The Spamhaus Project, LTD;
ANSWER: Spamhaus does not own any property other than the Macintosh computer and bank account addressed in response to number six and nine.
5. For all such property identified in Number 4 herein, provide any and all information related to any and all profits, losses, gains, offsets, taxes paid or credited, along with any and all other tax or other related financial consequences, resulting from the sale, gain, purchase or ownership of such property; further, identify where all such property is located and how and in what ways such property is currently being used and how such property has been used for the past three years;
ANSWER: Because Spamhaus does not own any property, as described in response to number 4, this question is not applicable.
6. Any and all information regarding all bank, money or other financial accounts, including but not limited to bank statements and check ledgers, in the name of The Spamhaus Project, LTD, and/or its officers and/or directors, along with such information for any of The Spamhaus Project, LTD’s subsidiaries, successors or other related entities; for all such information, provide the name of the accounts, account numbers, amount of money currently held in each account and monthly statements for each said account for the past three years;
ANSWER: Spamhaus has been in existence for two years and will provide information relating to that time period. Spamhaus has one bank account, for which it receives monthly bank statements. Those bank statements are in the process of being collected and will be forwarded within a reasonable period of time. However, any personal information, such as Steve Linford’s personal address, will be redacted. Spamhaus has no subsidiaries, successors, or other related entities as that term is understood.
7. Copies of all income tax returns filed for the past three years, on behalf of The Spamhaus Project, LTD, along with copies of any and all tax refund checks issued during these years, and any and all information regarding how such refund money was used and/or where such money was held and is currently being held, whether by The Spamhaus Project, LTD and/or any other entity or individual affiliated or associated in any way with The Spamhaus Project, LTD;
ANSWER: Spamhaus has been in existence for two years. During that time, it has only filed one income tax return. However, no tax refund check has been issued. The income tax return is in the process of being collected and will be forwarded within a reasonable period of time.
8. Any and all information regarding any and all loan documents related to The Spamhaus Project, LTD, including any and all documents related to any receipts or disbursements of money related to such loans, for the past three years.
ANSWER: Spamhaus does not have any loan documents.
9. A list of all assets regardless of their present location.
ANSWER: Spamhaus has one computer (a Mac G4 Tower) located at a donated space in the United Kingdom. Spamhaus also has one bank account at HSBC in London, United Kingdom, with a balance of approximately $14,000. Pursuant to the response to number six, the documentation relating to the bank account is in the process of being collected and will be produced within a reasonable period of time.
10. A list of all liabilities regardless of their present location.
ANSWER: Spamhaus does not have any liabilities.
11. Audited financial statements for the last five years.
ANSWER: Spamhaus does not have any audited financial statements.
Respectfully submitted,
THE SPAMHAUS PROJECT
Dated: November 10, 2006 By: __s/Matthew M. Neumeier__
Matthew M. Neumeier
Craig C. Martin
Carrie A. Fino
JENNER & BLOCK LLP
330 North Wabash Avenue
Chicago, IL 60611
Telephone: (312) 222-9350
Facsimile: (312) 527-0484
========================
CERTIFICATE OF SERVICE
I, Matthew M. Neumeier, an attorney, hereby certify that I served the foregoing Defendant’s Response to Citation to Discover Assets upon:
Joseph L. Kish
Kristen M. Lehner
Bartly Joseph Loethen
Synergy Law Group, L.L.C.
730 West Randolph Street
6th Floor
Chicago, IL 60661
Phone: (312) 454-0015
Fax: (312) 454-0261
by depositing a copy of same in the United States Mail, postage prepaid, on this 10th day of November 2006.
s/Matthew M. Neumeier_________
Matthew M. Neumeier

Opposition to Motion to Show Cause

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’S RESPONSE TO PLAINTIFFS’ MOTION
FOR A RULE TO SHOW CAUSE
NOW COMES the Defendant The Spamhaus Project,1 by and through its attorneys Jenner & Block LLP, and submits the following in response to Plaintiffs’ motion for rule to show cause alleging that Spamhaus has failed to comply with the citation to discover assets that it served on October 23, 2006:
1. Plaintiffs’ counsel asserts that pursuant to Local Rule 37.1, he emailed counsel for Spamhaus on March 13, 2007, in an attempt to resolve the matter without need for court intervention. However, the proper rule for meet and confer, as referenced on this court’s website, is Local Rule 37.2. According to that rule, there must be “consultation in person or by telephone and good faith attempts to resolve differences.” One letter sent via email on March 13,
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1 Defendant expressly objects to this Court’s jurisdiction over The Spamhaus Project because Defendant is based solely in the United Kingdom and does not conduct or transact business in Illinois. Moreover, Defendant reserves its arguments based on Plaintiff’s failure to properly effect service of process.
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2007 is insufficient to satisfy the meet and confer standard. See Sondker v. Philips Elecs., No. 03-C-2167, 2004 U.S. Dist LEXIS 14477, at *5-7 (N.D. Ill. July 27, 2004) (holding that a letter requesting production of attachments to an email used by opposing party in a summary judgment motion does not satisfy the meet and confer requirements of Local Rule 37.2). Plaintiffs’ counsel did not attempt to resolve these differences in good faith through consultation with Spamhaus prior to filing this motion.
2. Rather, Plaintiffs’ counsel sent a letter via email on March 13, 2007, to which Spamhaus replied on March 15, 2007. Spamhaus at that time reiterated that it has no subsidiaries, successors, parent companies, or other such related entities. Thus, Spamhaus answered the question presented by Plaintiffs. After receiving Spamhaus’ answer on March 15, 2007, Plaintiffs’ counsel sent an email stating “I respectfully disagree and think the court will disagree as well. Our motion will be forthcoming.” The motion was filed the same day, without any attempt by Plaintiffs’ counsel to call Spamhaus’ counsel to explain his disagreement or request additional information. This does not satisfy the spirit of meet and confer in the Northern District of Illinois — as this Court has noted, “Local Rule 37.2 is not a suggestion to the parties, rather it is a mandate…‘failure to comply with the local rules is not merely a “harmless technicality,” but can be a “fatal” mistake.’” Biedrzycki v. Town of Cicero, No. 04-C-3277, 2005 U.S. Dist. LEXIS 16423, at *6-7 (N.D. Ill. Aug. 8, 2005) (quoting Ridge Chrysler Jeep L.L.C. v. Daimler Chrysler Servs. N. Am., L.L.C., 2004 U.S. Dist. LEXIS 26861, 2004 WL 3021842 at *4 (N.D. Ill. 2004)). Plaintiffs’ failure to properly attempt to meet and confer with Spamhaus regarding this difference of opinion is fatal to its Motion for Rule to Show Cause under Local Rule 37.2.
3. Spamhaus originally responded to the October 23, 2006 citation on November 10, 2006. In that response, Spamhaus answered Plaintiffs’ questions and Steve Linford provided an affidavit certifying those responses. Furthermore, Steve Linford expressed his willingness to sit for a telephonic deposition relating to the assets of The Spamhaus Project. Plaintiffs never pursued the option of a telephonic deposition of Steve Linford. Nor did they ever object to the responses provided by Spamhaus on November 10, 2006.
4. Instead, Plaintiffs waited almost 3 months to complain about the answers asserted in the November 10, 2006 response. On January 31, 2007, Plaintiffs filed a second citation to discover assets that was substantively and procedurally defective. Upon receiving a letter from counsel for Spamhaus regarding the defective nature of the citation to discover assets, Plaintiffs withdrew the second citation.
5. On March 7, 2007, acting in good faith, Spamhaus answered the additional questions presented by Plaintiffs. However, that same day, Spamhaus learned that Plaintiffs had been serving subpoenas to third parties without serving those subpoenas on Spamhaus as required by Fed. R. Civ. P. 5(a).
6. In their motion, Plaintiffs allege that through the use of these illicit subpoenas, they discovered an entity named Spamhaus Technology, LTD, which Plaintiffs believe is owned by Steve Linford.2 Steve Linford is not a named defendant in this lawsuit and The Spamhaus Project does not have any subsidiaries, successors, parent companies, or other such related entities, as requested by the citation to discover assets.
7. Plaintiffs claim that Spamhaus Technology, LTD is at least a “related entity” as the term was used in the citation to discover asset. However, the terms used were “subsidiaries,
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2 Steve Linford only role in this litigation is as the director of The Spamhaus Project, not as an individual defendant.
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successors, parent companies, or other such related entities” (emphasis added). Therefore, the term “related entity” as used by Plaintiffs infers that the related entity should be similar to a subsidiary, successor, or parent company. Spamhaus Technology, LTD is not a “such related entity” to The Spamhaus Project, as it is a separate company that is not a “subsidiary, successor or parent company” to The Spamhaus Project, nor is it owned by The Spamhaus Project.
WHEREFORE, Defendant The Spamhaus Project respectfully requests that this Court deny Plaintiffs’ motion for a rule to show cause.
Respectfully submitted,
THE SPAMHAUS PROJECT
Dated: March 19, 2007 By: s/Matthew M. Neumeier_________
Matthew M. Neumeier
Craig C. Martin
Carrie A. Fino
JENNER & BLOCK LLP
330 North Wabash Avenue
Chicago, IL 60611
Telephone: (312) 222-9350
Facsimile: (312) 527-0484
======================
CERTIFICATE OF SERVICE
I, Carrie A. Fino, an attorney, hereby certify that I served the foregoing Defendant’s Response to Plaintiffs’ Motion For A Rule to Show Cause upon:
Joseph L. Kish
Kristen M. Lehner
Bartly Joseph Loethen
Synergy Law Group, L.L.C.
730 West Randolph Street
6th Floor
Chicago, IL 60661
Phone: (312) 454-0015
Fax: (312) 454-0261
by depositing a copy of same in the United States Mail, postage prepaid, on this 19th day of March 2007.
s/Carrie A. Fino ____________
Carrie A. Fino

Order on Motion to Show Cause

UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.0
Eastern Division
e360 Insight, LLC, et al.
Plaintiff,
v. Case No.: 1:06−cv−03958
Honorable Charles P. Kocoras
Spamhaus Project, The
Defendant.
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Tuesday, March 20, 2007:
MINUTE entry before Judge Charles P. Kocoras :Motion hearing held on
3/20/2007. Plaintiffs' motion [75] for a rule to show cause is denied for the reasons stated
in open court. Defendant is directed to respond to all reasonable questions. Mailed
notice(sct, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If a minute order or other document is enclosed, please
refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.

Opposition to Motion for Order to Show Cause

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’S RESPONSE TO E360’S MOTION
FOR RULE TO SHOW CAUSE, AND DEFENDANT’S REQUEST
FOR LEAVE TO CONDUCT LIMITED DISCOVERY, REQUEST FOR
CLARIFICATION OF THE PERMANENT INJUNCTION, AND REQUEST
TO STAY ENFORCEMENT OF THE INJUNCTION PENDING CLARIFICATION

NOW COMES the Defendant The Spamhaus Project,1 by and through its attorneys Jenner & Block LLP, and submits the following in response to Plaintiffs’ Motion for Rule to Show Cause alleging a violation of the Permanent Injunction, and requests (1) for leave to conduct limited discovery in order to comply with the Permanent Injunction entered on September 13, 2006; (2) clarification of that Injunction; and (3) stay of enforcement of the Injunction pending clarification:
1. On September 13, 2006, this Court entered an order for default judgment in favor of Plaintiff and against Defendant, including a Permanent Injunction. The order for default
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1 Defendant expressly objects to this Court’s jurisdiction over The Spamhaus Project because Defendant is based solely in the United Kingdom and does not conduct or transact business in Illinois. Moreover, Defendant reserves its arguments based on Plaintiff’s failure to properly effect service of process. These objections are made notwithstanding Defendant’s filing of this Motion, and had previously been raised in the Notice of Removal and Answer to the Complaint that was withdrawn with leave of this Court.
__________________________________
judgment and Permanent Injunction is currently on appeal and fully briefed before the United States Court of Appeals for the Seventh Circuit.
2. The Permanent Injunction states that:

1. Spamhaus shall not take any action to cause emails sent by Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs to be blocked, delayed, altered, or interrupted in any way (including, without limitation, by listing Plaintiffs on Spamhaus’s ROKSO list, within an SBL listing on Spamhaus’s website, using blacklisting technology in concert or conjunction with others, or taking any other action to cause any such interference) unless Spamhaus can demonstrate by clear and convincing evidence that Plaintiffs have violated relevant United States law. Such clear and convincing evidence may only be shown after providing Plaintiffs with an opportunity to review any alleged offending email, including a review of the email header and content (in its entirety), and providing Plaintiffs with an opportunity to show the offending email was not send in violation of the United States law to the satisfaction of a reasonable person.
2. If such clear and convincing evidence is shown, then and only then may Spamhaus list the Internet Protocol (IP) address, and only the IP address, from which the offending email was sent on its website.
3. Spamhaus shall post, within five business days of the date of this order, on its website both the main home page and at the ROKSO jump page, a message of 1 inch by 1 inch, the text which is to be reasonably approved by Plaintiffs, and which, generally, indicates that Plaintiffs were erroneously listed on the website as spammers and that Plaintiffs are not spammers. Defendant Spamhaus shall leave such message on its site for a period of six months.

3. Spamhaus obtained evidence that spam was being sent from anonymous domains within the IP address ranges 63.161.113.0 to 63.161.113.255 (consisting of 255 IP addresses). On March 1, 2007, Spamhaus created SBL record SBL51828 listing 63.161.113.0/24. After investigation, Spamhaus found that the 63.161.113.0/24 netblock was registered to “Rocky Mountain Internet Service, LLC” of Colorado. The registration appears as follows:

OrgName: Rocky Mountain Internet Services, LLC
OrgID: RMIS-3
Address: 102 S. Tejon Street
Address: 11th Floor
City: Colorado
StateProv: CO
PostalCode: 80903
Country: US

As Exhibit A, a sample of six records obtained from the IP range, demonstrates, there was no other identifier present in the IP address registry to suggest the 63.161.113.0/24 IP range was owned by anyone other than Rocky Mountain Internet Services, LLC. The 255 IP addresses and domain name, rockymountaininternetservices.com, was registered through a Florida company, Moniker Privacy Services of Pompano Beach, Florida, that provides anonymous domain registration services.
4. Spamhaus further obtained evidence that spam was being sent from anonymous
domains within the IP address ranges 71.5.99.0 to 71.5.99.128 (consisting of 128 IP addresses). On March 13, 2007, Spamhaus created SBL record SBL52363 listing 71.5.99.0/25. After investigation, Spamhaus found that the 71.5.99.0/25 netblock was registered to “XO Communications” of Reston, Virginia. The registration appears as follows:

OrgName: XO Communications
OrgID: XOXO
Address: Corporate Headquarters
Address: 11111 Sunset Hills Road
City: Reston
StateProv: VA
PostalCode: 20190-5339
Country: US

As Exhibit B, a sample of eight records obtained from that IP range, demonstrates, there was no other identifier present in the IP address registry to suggest the IP range was owned by anyone other than XO Communications. The 80 anonymous domain names within the IP range were all registered through Moniker Privacy Services of Pompano Beach, Florida, a company that provides anonymous domain registration services.
5. e360 contacted Spamhaus claiming that it owned and controlled the IP addresses listed under SBL 51828 and SBL 52363, and requested that Spamhaus remove the addresses from the SBL list in order to comply with the terms of the Permanent Injunction.
6. In response to e360’s request, Spamhaus repeatedly requested further evidence regarding e360’s ownership and control of the IP addresses at issue. (See Exhibit C - Letters from February 14, 2007; March 7, 2007; and March 15, 2007). e360 never responded to these requests. Furthermore, in an effort to comply with the Permanent Injunction and to avoid unnecessary future disputes over Spamhaus’ compliance, Spamhaus additionally requested a list of all of e360’s anonymous domains, the location of such domains, and e360’s relationship with those domains (i.e. whether the domain was directly owned by e360 or was an affiliate, subsidiary, or related company owned or controlled by e360 or David Linhardt). This information is critical because Spamhaus has reason to believe that the number of anonymous domains operated by e360 is significant in scope, and without this information Spamhaus is in an untenable position and exposed to repeated threats and Motions for Rule to Show Cause from Plaintiffs regarding compliance with the Permanent Injunction.
7. e360 steadfastly refused to provide any of the evidence reasonably requested by Spamhaus. Instead, on March 16, 2007, e360 provided an affidavit from David Linhardt opining in conclusory fashion that IP addresses 63.161.113.0/24 (SBL 51828) and 71.5.99.0/25 (SBL 52363) are “controlled by e360Insight, LLC and David Linhardt as that term is used in the Default Judgment Order entered in the case of e360 Insight, LLC et al vs. The Spamhaus Project on September 13, 2006.” (Ex. D at ¶¶ 5, 7.) The affidavit did not include any supporting documentation for David Linhardt’s bald assertion that he “controls” the IP addresses at issue, nor did the affidavit include any documentation or evidence of ownership or registration of the IP addresses in question by e360. Furthermore, the affidavit provided no statement or evidence regarding how exactly the IP addresses are “controlled” by David Linhardt.
8. After receiving Linhardt’s affidavit, Spamhaus agreed to remove references to bargaindepot.net from the ROKSO on March 16, 2007. In meet and confer discussions with e360 regarding the Injunction, e360’s counsel stated that it believes the term “affiliates” includes e360’s independent business partners. Thus, Spamhaus has reason to believe that these “anonymous” companies are not actually “controlled” by e360 or David Linhardt, which places them outside of the terms and scope of the Injunction. Therefore, Spamhaus refused to remove SBL listings 51828 and 52363 without actual documentary evidence demonstrating e360’s ownership or “control” of the IP address ranges at issue, and renewed its request for a list of all of e360’s anonymous domains, the location of such domains, and e360’s relationship with those domains in order to ensure that Spamhaus could fully comply with the Permanent Injunction. e360 again refused to provide this information.
9. On April 4, 2007, e360 filed its Motion for Rule to Show Cause, alleging that the IP addresses included in SBL listings 51828 and 52363 were listed in violation of the Permanent Injunction because these IP addresses were allegedly controlled by e360, and Spamhaus never provided “clear and convincing evidence” that Plaintiffs violated U.S. law prior to listing the IPs, as required under the Permanent Injunction. (Motion for Rule to Show Cause ¶ 4). e360 also requested that this Court:

1. Sanction Defendant in the amount of Plaintiffs’ reasonable attorney’s fees in connection with bringing this motion;
2. Require Defendant to comply with the September 13, 2006 Order by removing SBL 51828 and SBL 52363 within 24 hours of the entry of this order;
3. Bar any internet service providers from using Defendant’s Block list until Defendant complies with this the September 13, 2006 Order; and,
4. Require the Internet Corporation for Assigned Names and Numbers (“ICANN”) to suspend the domain spamhaus.org until Defendant complies with the September 13, 2006 Order.

(Id. at pp. 4-5). e360’s Motion for Rule to Show Cause is without merit, for a plethora of reasons.
10. First, the Permanent Injunction applies solely to “Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs.” The bulk emails that caused Spamhaus to list the IP ranges within SBL listings 51828 and 52363 were sent from anonymous domain names within those IP ranges, and the IP ranges are registered to Rocky Mountain Internet Services, LLC and XO Communications, respectively. In fact, the use of Moniker Privacy Services to register the domain names within the IP ranges covered by the SBL listings at issue demonstrates that the domain names are intentionally registered anonymously. Because the IP ranges in question are registered to companies that are not a party to this lawsuit or the Injunction, and the domain names within those IP ranges are registered anonymously, SBL listings 51828 and 52363 do not violate the Permanent Injunction because they do not concern “Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs.” The SBL listings were generated without any knowledge by Spamhaus that these IP ranges could be “Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs.” e360 has never provided any documentation to contradict these facts that Spamhaus discovered in publicly available records.
11. In support of its Motion for Rule to Show Cause, e360 attached Exhibit B, representing it to be the “allegedly spam e-mail.” Motion for Rule to Show Cause at ¶ 5. Not only was this “allegedly spam e-mail” attached without any authentication, it also was not the spam email that led to the creation of SBL 52363. According to Spamhaus’ website (http://www.spamhaus.org/sbl/index.lasso), the offending spam email was actually sent from the domain titmon.com. (Ex. E.) Furthermore, the very domain names mentioned by e360 in the exhibits in support of its Motion for Rule to Show Cause (namely “haogdam.com,” “gotdop.com,” and “ifbeam.com”) (Motion for Rule to Show Case at Exhibits B and E) are registered anonymously with Moniker Privacy Services under the IP address ranges covered by SBL listings 51828 and 52363, which are registered to Rocky Mountain Internet Services, LLC and XO Communications. (Exhibits A and B, respectively). As such, nothing in the registry of either the domain names at question, or the IP ranges from which these domain names operate indicates that these domain names or IP ranges are “Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs.”
12. Second, while e360 relies on the affidavit of David Linhardt as proof that the IP ranges identified by SBL 51828 and 52363 are “controlled by e360Insight, LLC and David Linhardt as that term is used in the Default Judgment Order entered in the case of e360 Insight, LLC et al vs. The Spamhaus Project on September 13, 2006,” this affidavit is legally insufficient. An affidavit must be based on personal knowledge, set forth facts that would be admissible in evidence, and show affirmatively that the affiant is a competent witness on those matters. Fed. R. Civ. P. 56(e); Johnson v. Nordstrom, Inc., 260 F.3d 727, 736 (7th Cir. 2001). Statements in affidavits about opinion, belief, or conclusions of law are to be given no effect. See Eden v. Klaas, 165 Neb. 323, 328 (Neb. 1957). In this case, Linhardt’s affidavit contains only his legal conclusion that he “controls” the IP addresses at issue “as that term is used in the Default Judgment.” However: (1) the term “controlled” was never defined in the Permanent Injunction; (2) e360 and Linhardt never explain how they believe “control” was “used in the Default Judgment;” and (3) despite repeated requests by Spamhaus, e360 and Linhardt have provided no actual admissible evidence or documentation (such as ownership records or registration records) to support the affidavit’s conclusory assertion that Linhardt “controls” the IP addresses listed by SBL 51828 and 52363.
13. Third, e360 fails to submit an affidavit or other admissible evidence to support the “facts” alleged in their motion. For example, in Paragraph 8 of e360’s Motion for a Rule to Show Cause, e360 contends that “Spamhaus’ actions are continuing to cause irreparable harm to e360 and are inhibiting e360’s ability to conduct its lawful business,” that “Spamhaus [sic] actions have directly resulted in lost revenue for e360,” and that “e360 is forced to spend additional legal fees to respond to Spamhaus’ improper acts.” e360, however, provides no admissible evidence to support any of these contentions — no evidence of “irreparable harm,” no evidence that e360’s business is indeed lawful, no evidence of “lost revenue,” no evidence of expenditures for legal fees, and most importantly, no evidence that Spamhaus’ actions were the cause of any alleged and unsupported harms that may have befallen e360. Similarly, in Paragraph 9 of e360’s Motion for a Rule to Show Cause, e360 alleges that “Spamhaus [sic] SBL listing was the sole reason provided by Time Warner for terminating e360’s services, provided by J3 Networks.” This allegation, too, is offered without the support of any admissible evidence – nowhere in e360’s exhibits in support of its motion is there any evidence from Time Warner stating or suggesting that Time Warner terminated e360’s service because of Spamhaus. e360’s Motion for a Rule to Show Cause is devoid of any admissible evidentiary support and should be denied.
14. Fourth, without any admissible proof regarding e360’s ownership or control of the IP ranges listed under SBL 51828 and 52363, Spamhaus should have no obligation to remove the Case listings from the SBL. By allowing e360 to claim “control” or ownership of IP ranges registered to other entities and domain names that were registered anonymously, it is possible (and, Spamhaus would argue, likely) that the Permanent Injunction may be abused to provide a windfall to parties that are not “Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs,” and thus not within the proper scope of the Injunction.
15. Fifth, Paragraph 10 of e360’s Motion for Rule to Show Cause is disingenuous because it attempts to show that Spamhaus refused to comply with the Permanent Injunction even though e360 provided Spamhaus with Linhardt’s affidavit evidence. However, Spamhaus has repeatedly (since February 2007) asked e360 for evidentiary proof regarding its control or ownership of the IP ranges at issue in an attempt to comply with the Permanent Injunction. Despite these repeated requests, e360 refuses to provide this proof, without ever explaining why it is unwilling to comply with this simple, reasonable request. Given e360’s reticence to provide any ownership or registration documentation concerning these IP ranges, Plaintiffs’ ownership or “control” of the IP address ranges at issue has never been demonstrated, and therefore these anonymous domains within the IP address ranges do not fall within the parameters of the Injunction.
16. Sixth, Spamhaus disagrees with e360’s characterization of the procedures of the Permanent Injunction. e360 argues that Spamhaus is prohibited from listing any IP addresses that are owned or controlled by Plaintiffs or their affiliates, subsidiaries, or related companies, and that upon e360 asserting that it has any ownership or control over any IP address, regardless of the sufficiency of proof, Spamhaus must immediately remove the IP address from the SBL list. While Spamhaus agrees that the Injunction prohibits it from listing Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs, the Injunction Case applies only to “companies owned or controlled by Plaintiffs.” The IP addresses at issues are anonymously registered and when they were listed, Spamhaus had no knowledge that e360 or David Linhardt claimed some sort of ownership or control. e360 has failed to provide Spamhaus with evidence sufficient to actually show that it owns or controls these domain ranges. Thus, this dispute falls outside the parameters of the Permanent Injunction.
17. Finally, the third and fourth requested relief by e360 is beyond the reach of the Permanent Injunction and this Court’s power. First, e360 requests that this Court “[b]ar any internet service providers from using Defendant’s Block list until Defendant complies with this the September 13, 2006 Order.” The millions of internet service providers in the universe are not parties to this case and this Court lacks the authority to order such relief. Second, e360 requests that this Court “[r]equire the Internet Corporation for Assigned Names and Numbers (“ICANN”) to suspend the domain spamhaus.org until Defendant complies with the September 13, 2006 Order.” As this Court noted in its October 19, 2006 Order on e360’s Motion for Rule to Show Cause (in which e360 similarly requested that this Court order ICANN to suspend the spamhaus.org domain), ICANN is not a party to this case. Furthermore, as this Court also noted, e360’s requested relief (both then, and now) is “too broad to be warranted in this case” because “there has been no indication that ICANN…[is] not an independent entit[y], thus preventing a conclusion that [ICANN] is acting in concert with Spamhaus to such a level that they could be brought within the ambit of Fed. R. Civ. P. 65(d)” and “suspension would cut off all lawful online activities of Spamhaus via its existing domain name, not just those that are in contravention of this Court’s order.”
18. In addition to denying e360’s Motion for Rule to Show Cause, Spamhaus requests an opportunity to conduct limited discovery relating to companies owned or controlled by e360 or David Linhardt, so that Spamhaus can attempt to reasonably comply with the Permanent Injunction. To avoid disputes over compliance with the Injunction and to conserve judicial resources in the future, Spamhaus requests that this Court order e360 to provide Spamhaus with a list of all of the anonymous domain names and IP ranges e360 uses to send bulk email, as well as documentation sufficient to demonstrate that e360 actually owns or “controls” such domains or IP ranges. As noted above, Spamhaus has repeatedly requested this information from e360, but e360 refuses to provide it. Spamhaus believes this request is both reasonable and not onerous in any manner upon e360.
19. Furthermore, Spamhaus also requests an opportunity to serve interrogatories and document requests regarding ownership and registration records for IP addresses and domain names owned or controlled by e360, and also an opportunity to take David Linhardt’s deposition regarding his or e360’s ownership or control of any anonymous IP addresses and domain names. The limited discovery requested by Spamhaus is necessary to avoid any future disputes regarding the terms of the Permanent Injunction, and will ensure Spamhaus’ ability to comply in good faith with the Injunction.
20. In addition to denying e360’s Motion for Rule to Show Cause and granting Spamhaus’ request for limited discovery, Spamhaus also requests clarification of the Injunction. The Injunction is not specific in terms of the parties covered. As shown above, e360 and David Linhardt have a multitude of businesses that they regularly create and register anonymously for the purpose of sending “bulk” email. It is unclear whether the Injunction covers only the companies owned or controlled by e360 at the time of the entry of the Injunction or forever into the future. Clarification on the scope of the Injunction’s coverage will assist Spamhaus in complying with the Injunction.
21. Clarification is also necessary regarding the procedure by which disputes regarding listings on the SBL and ROKSO lists are adjudicated. As Spamhaus understands the terms of the Injunction, Spamhaus must present “clear and convincing” evidence of a violation of U.S. law before listing on its SBL or ROKSO lists companies owned or controlled by Plaintiffs. However, this “clear and convincing” evidence may only be “shown” after providing the evidence to e360 to review and have an opportunity to prove no violation of US law to the satisfaction of a reasonable person. Finally, if “clear and convincing evidence” is shown, then Spamhaus may list the offending IP address.
22. The Injunction as presently constituted leaves a number of questions open for interpretation, placing this Court in the role of perpetual referee between the parties. As shown above, the first disputed area is the amount of and type of proof required for e360 to demonstrate ownership or control of an anonymously registered company. Second, the term “shown” is not defined in the Injunction, it is unclear how the “clear and convincing” evidence Spamhaus may acquire of a violation of U.S. law by e360 is to be “shown,” and it is unclear what constitutes a “violation of U.S. law” that would permit Spamhaus to list e360 on its SBL and ROKSO lists. Third, the Injunction fails to specify when or how this evidence should be presented, or indeed how Spamhaus is to initiate a proceeding. Fourth, the Injunction is unclear how much evidence is sufficient to reach the standard of “clear and convincing” in order to allow Spamhaus to list a company owned or controlled by e360, and who makes the determination that evidence indeed meets the “clear and convincing” threshold. Finally, when Spamhaus presents its evidence, e360 is permitted to refute the “clear and convincing” evidence to “the satisfaction of a reasonable person.” Beyond being unfair in the differing standard of proof required for each party, it is unclear who represents the “reasonable person” and who determines whether sufficient evidence has been presented. For all of these reasons, the process provided in the Permanent Injunction will require this Court to become involved on an almost daily basis to interpret and manage the Injunction’s enforcement.
23. Finally, in addition to denying e360’s Motion for Rule to Show Cause, and granting Spamhaus’ requests for limited discovery and clarification of the Permanent Injunction, Spamhaus respectfully further requests that this Court stay enforcement of the Permanent Injunction until all of the above issues are resolved. Spamhaus cannot begin to comply with the Injunction unless and until it is clear what IP ranges and domains are owned or controlled by e360, and until the procedures under the Injunction are clarified and established in regards to how Spamhaus is to present the Court with “clear and convincing” evidence about any potential violations of U.S. law by e360.
WHEREFORE, Defendant The Spamhaus Project respectfully requests that this Court deny Plaintiffs’ Motion for Rule to Show Cause, grant Spamhaus’ request to conduct limited discovery, and grant Spamhaus’ request for clarification of the Permanent Injunction.
Respectfully submitted,
THE SPAMHAUS PROJECT
Dated: April 9, 2006 By: s/Matthew M. Neumeier_________
Matthew M. Neumeier
Craig C. Martin
Carrie A. Fino
JENNER & BLOCK LLP
330 North Wabash Avenue
Chicago, IL 60611
Telephone: (312) 222-9350
Facsimile: (312) 527-0484
Case 1:06-cv-03958 Document 82 Filed 04/09/2007 Page 13 of 14
CERTIFICATE OF SERVICE
I, Carrie A. Fino, an attorney, hereby certify that I served the foregoing Defendant’s
Response to e360’s Motion for Rule to Show Cause, and Defendant’s Request for Leave to
Conduct Limited Discovery, Request for Clarification of the Permanent injunction, and
Request to Stay Enforcement of the Injunction Pending Clarification upon:
Joseph L. Kish
Kristen M. Lehner
Bartly Joseph Loethen
Synergy Law Group, L.L.C.
730 West Randolph Street
6th Floor
Chicago, IL 60661
Phone: (312) 454-0015
Fax: (312) 454-0261
by depositing a copy of same in the United States Mail, postage prepaid, on this 9th day of April
2007.
__s/Carrie A. Fino________________________
Carrie A. Fino

Docket entry (Continuance)

UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.0
Eastern Division

Case No.: 1:06−cv−03958
Honorable Charles P. Kocoras

e360 Insight, LLC, et al.
Plaintiff,
v.
Spamhaus Project, The
Defendant.

NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Tuesday, April 10, 2007:

MINUTE entry before Judge James B. Zagel :Motion hearing held on 4/10/2007 before Judge Zagel. Plaintiffs' motion [79] for a rule to show cause is entered and continued to 4/12/2007 at 1:30 p.m. before Judge Zagel. Mailed notice(sct, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.

e360Insight Response to Opposition to Motion for Order to Show Cause

This is e360Insight's response to Spamhaus' opposition to e360Insight's Motion for Order to Show Cause.

The claims:

1. e360Insight doesn't need to give over a list of it's IP addresses
2. Spamhaus can list whatever it wants but upon a bare assertion of affiliation or control must remove the listing

Order on Motion to Show Cause

UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.0
Eastern Division
e360 Insight, LLC, et al.
Plaintiff,
v. Case No.: 1:06−cv−03958
Honorable Charles P. Kocoras
Spamhaus Project, The
Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Thursday, April 12, 2007:

MINUTE entry before Judge James B. Zagel :Show cause hearing stricken. Status
hearing held on 4/12/2007. RULE to show cause [79] is denied as moot. Petition for fees denied as moot.Mailed notice(drw, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If a minute order or other document is enclosed, please
refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.

Motion to Withdraw

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

EASTERN DIVISION

E3601NSIGHT, LLC,
an Illinois Limited Liability Company, and DAVID LINHARDT, an individual

Plaintiffs, 06 CV 3958

v.

THE SPAMHAUS PROJECT,
a company limited by guarantee and organized tinder the laws of England, aka THE SPAMHAUS PROJECT LTD,

Defendant.

MOTION TO WITHDRAW PREVIOUSLY FILED MOTIONS

Plaintiffs, e3601nsight, LLC and David Linhardt (collectively Plaintiffs), by and through their attorneys, Synergy Law Group, LLC, respectfully requests that this Court allow Plaintiffs to withdraw their previously filed Motion for a Rule to Show Cause and Motion to Compel. In support of this motion Plaintiffs state:

1. On May 14, 2007, Plaintiffs filed a Rule to Show Cause and noticed it for May 31, 2007 at 9:30 a.m. Attached as Exhibit A is a copy of the Rule to Show Cause, without exhibits.

2. On May 22, 2007, Plaintiffs filed a Motion to Compel and noticed it for May 31, 2007 at 9:30 a.m. Attached as Exhibit B is a copy of the Motion to Compel without exhibits.

3. Plaintiffs wish to withdraw the Rule to Show Cause and the Motion to Compel.

WHEREFORE, Plaintiffs, e360Insight, LLC and David Linhardt, respectfully request that this Court allow Plaintiffs to withdraw their Motion for a Rule to Show Cause and their Motion to Compel without prejudice.

Respectfully submitted,

E360Insight, LLC. and David Linhardt

By: /s/ Daniel J. Peters
One of Their Attorneys

Bartly J. Loethen
Joseph L. Kish
Daniel J. Peters
Synergy Law Group, LLC 730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Motion to Withdraw

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

EASTERN DIVISION

E360INSIGHT, LLC,
an Illinois Limited Liability Company, and DAVID LINHARDT, an individual

Plaintiffs, 06 CV 3958

v.

THE SPAMHAUS PROJECT,
a company limited by guarantee and organized tinder the laws of England, aka THE SPAMHAUS PROJECT LTD,

Defendant.

MOTION TO WITHDRAW PREVIOUSLY FILED MOTIONS

Plaintiffs, e360Insight, LLC and David Linhardt (collectively Plaintiffs), by and through their attorneys, Synergy Law Group, LLC, respectfully requests that this Court allow Plaintiffs to withdraw their previously filed Motion for a Rule to Show Cause and Motion to Compel. In support of this motion Plaintiffs state:

1. On May 14, 2007, Plaintiffs filed a Rule to Show Cause and noticed it for May 31, 2007 at 9:30 a.m. Attached as Exhibit A is a copy of the Rule to Show Cause, without exhibits.

2. On May 22, 2007, Plaintiffs filed a Motion to Compel and noticed it for May 31, 2007 at 9:30 a.m. Attached as Exhibit B is a copy of the Motion to Compel without exhibits.

3. Plaintiffs wish to withdraw the Rule to Show Cause and the Motion to Compel.

WHEREFORE, Plaintiffs, e360Insight, LLC and David Linhardt, respectfully request that this Court allow Plaintiffs to withdraw their Motion for a Rule to Show Cause and their Motion to Compel without prejudice.

Respectfully submitted,

E360Insight, LLC. and David Linhardt

By: /s/ Daniel J. Peters
One of Their Attorneys

Bartly J. Loethen
Joseph L. Kish
Daniel J. Peters
Synergy Law Group, LLC 730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Spamhaus Reply to Motion to Compel

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’S RESPONSE TO PLAINTIFFS’ MOTION TO COMPEL

Introduction

Plaintiffs e360 Insight, LLC and David Linhardt’s (collectively “Plaintiffs”) motion to compel the production of documents from The Spamhaus Project, Ltd. (“Project”)1 is meritless and should be denied. Plaintiffs do not and cannot claim that Project has failed to produce documents relating to Project that are in the custody or control of Project. Instead, Plaintiffs’ motion is an overreaching attempt to obtain discovery from two other and separate entities, Spamhaus Technology, LTD (“Technology”) and Ultradesign, LTD. But Project does not own or otherwise control either Technology or Ultradesign. Plaintiffs have not sued or served either Technology or Ultradesign. And Plaintiffs have no evidence of any kind that Project has access to the documents of Technology or Ultradesign. In fact, as we repeatedly advised counsel for Plaintiffs before this motion was filed, Project has no access to those documents. And while Plaintiffs’ motion is made on “information and belief” that Project can access the documents of the other entities, we attach to this sworn testimony that it cannot. The Court should deny Plaintiffs’ improper attempt to shortcut the rules of service and, if Plaintiffs desire information regarding Technology and Ultradesign, they should go through the proper legal method to obtain discovery from these United Kingdom entities, Technology and Ultradesign.

[1 Defendant expressly objects to this Court’s jurisdiction over The Spamhaus Project because Defendant is based solely in the United Kingdom and does not conduct or transact business in Illinois. Moreover, Defendant reserves its arguments based on Plaintiffs’ failure to properly effect service of process.]

I. Factual and Procedural Background.

A. The Facts Regarding Project, Technology And Ultradesign.

These are post-judgment proceedings against a single defendant, Project. Plaintiffs have never sued or served any individual or any other entity in this action, let alone Technology or Ultradesign. Steve Linford, the sole director of Project, has provided in attached affidavits the following information regarding the three entities at issue in Plaintiffs’ motion:

1. Project.
The Spamhaus Project, Ltd. is a non-profit company organized under the laws of the United Kingdom whose mission is to track spam senders and publish lists of verified spam sources, which are available on the internet free of charge. (Ex. A, Linford Spam Teq Aff. ¶ 3.) Steve Linford is the sole Director of Project. (Id. ¶ 1.) Project is the only defendant in this lawsuit and the only entity over which the Court has purportedly exercised jurisdiction.

2. Technology.
Spamhaus Technology, Ltd., also known as SpamTeq, is a British data service company that manages data synchronization systems in the United Kingdom. (Linford Spam Teq Aff. ¶ 5.) Technology merges data derived from approximately four (4) open-source spam filter organizations (only one of which is the Spamhaus Project, Ltd.) into data formats utilized by the spam filter industry. (Id.) The company website is http://www.spamteq.com. (Id.) Technology has no offices or staff outside the United Kingdom, nor does it enter into any contracts outside the United Kingdom. (Id. ¶ 5.)

Technology has no parents, subsidiaries or related entities. (Id. ¶ 6.) Project and Technology are separate, independent legal entities, governed by separate boards of directors, incorporated under separate charters, and engaged in separate endeavors. (Id. ¶ 7.) Technology is a partnership governed by a Board of Directors consisting of five (5) members. (Id. ¶ 12.) Under the charter, decisions are made by the majority. (Id. ¶ 12; Ex. B, Technology Charter.) Thus, individually, Steve Linford has no authority over the books and records of Technology. (Linford Spam Teq Aff. ¶ 12.) Project has no ownership interest in Technology. (Id. ¶ 7.) Likewise, Technology has no ownership interest in Project. (Id.) Project receives no income from Technology. (Id. ¶ 8.) Likewise, Project does not pay any fees to Technology. (Id.)

Technology and Project maintain separate books and records that are kept in different locations. (Id. ¶ 9.) Technology and Project each have their own separate tax records and each company maintains its own separate computers. (Id. ¶ 10.)

3. Ultradesign.
Ultradesign.com, also known as Ultradesign LTD, is a United Kingdom based Internet hosting company that provides web hosting and email services. (Ex. C, Linford Ultradesign Aff. ¶ 5.) Ultradesign has no offices or staff outside of Europe, nor does it enter into any contracts outside the United Kingdom. (Id.) Ultradesign is registered at Suite 6, 50 Churchill Square, Kings Hill, West Malling, Kent ME 19 4YU. (Id. ¶ 6.) The registered company number is 04154838. (Id.)

Ultradesign has no parents, subsidiaries or related entities. (Id. ¶ 7.) Project and Ultradesign are separate, independent legal entities, governed by separate boards of directors, incorporated under separate charters, and engaged in separate endeavors. (Id. ¶ 8.) Ultradesign is a partnership consisting of two partners. (Id. ¶ 13.) The partnership decisions are only made unanimously. (Id.) Thus, individually, Steve Linford has no authority over the books and records of Ultradesign. (Id.) Project has no ownership interest in Ultradesign. (Id. ¶ 8.) Likewise, Ultradesign has no ownership interest in Project. (Id.) Project receives no income from Ultradesign. (Id. ¶ 9.) Likewise, Project does not pay any fees to Ultradesign. (Id.)

Ultradesign and Project maintain separate books and records that are kept in different locations. (Id. ¶ 10.) Although Ultradesign donates to Project a server in its server racks in the United Kingdom, Ultradesign and Project each have their own separate tax records and each company maintains its own separate computers. (Id. ¶¶ 8, 11.)

B. Project’s Compliance With The Court’s Orders And Provision Of Responsive Information.

Project originally responded to the October 23, 2006 citation on November 10, 2006. In that response, Project answered Plaintiffs’ questions and Steve Linford provided an affidavit certifying those responses. (Ex. D.) Those responses provided all of the information sought regarding Project. Furthermore, Steve Linford expressed his willingness to sit for a telephonic deposition relating to the assets of Project. Plaintiffs never pursued the option of a telephonic deposition of Steve Linford. Nor did they timely object to the responses provided by Spamhaus on November 10, 2006. Instead, Plaintiffs waited almost 3 months to complain about the answers asserted in the November 10, 2006 response. On January 31, 2007, Plaintiffs filed a second citation to discover assets that was substantively and procedurally defective. (Ex. E.) Upon receiving a letter from counsel for Project regarding the defective nature of the citation to discover assets, Plaintiffs withdrew the second citation. (Ex. F.)

On March 7, 2007, Project answered additional questions presented by Plaintiffs. (Ex. G.) On March 13, 2007, Plaintiffs asked Project to revise its answers to the citation to discover assets regarding its related companies. (Ex. H.) Project responded to that request by reiterating that it had disclosed its assets and that it does not own Technology. (Ex. I.) However, on March 15, 2007, Plaintiffs filed a Motion for Rule to Show Cause, alleging that Project should be held in contempt for wrongfully withholding information about Technology. The parties appeared before this Court on March 20, 2007. At that hearing, this Court denied the Motion for Rule to Show Cause and ordered Project to “respond to all reasonable questions” about Technology. (Ex. J, 3/20/07 Tr. at 6.)

After that hearing, counsel for Project engaged in numerous conversations with Plaintiffs’ counsel regarding the additional information sought, providing information telephonically and indicating that further information would be provided. On May 15, 2007, Project’s counsel contacted Plaintiffs’ counsel and agreed to provide “reasonable” information pursuant to an agreed protective order. On May 18, 2007, Project provided general information about Spamhaus Technology, including (1) the office address for Spamhaus Technology; (2) a list of officers, board members, investors, and owners of Spamhaus Technology; and (3) a copy of the Spamhaus Technology charter. (Ex. K - with information redacted pursuant to discussions on an agreed protective order.)

In addition to seeking information about Technology, Plaintiffs are now seeking information related to Ultradesign, based on their unsupported belief that Ultradesign is related to Project. (Mot. ¶ 11; see also Ex. L.) In fact, the only connections between Project and Ultradesign are the commonality of one director and that Ultradesign donates to Project a server in its server racks in the United Kingdom. As with Technology, counsel for Project informed Plaintiffs’ counsel that Ultradesign is not owned or controlled by Project and that Project does not possess any of the information sought about Ultradesign.

II. The Court Should Deny Plaintiffs Motion Because Project Has Complied With The Court’s Order And Does Not Control The Additional Information Plaintiffs Seek.

While reserving its right to contest jurisdiction (currently on appeal), Project has already provided certain general public information it was aware of regarding Technology. (See Ex. K, May 18, 2007 letter.) By disclosing this information, Project fully complied with this Court’s March 20, 2007 order directing Spamhaus Project to respond to “all reasonable questions.” The remaining information sought by Plaintiffs is non-public information that Project has no right to access or provide.2 Project cannot be compelled to provide information it does not have and cannot legally obtain, and Plaintiffs motion should be denied.

[2 Spamhaus has provided all of this information as it relates to Project. However, in addition to
the public information related to Technology that Project provided on May 18, 2007, Plaintiffs
demand the following information related to Spamhaus Technology, Ltd.: (1) the amount of
compensation paid to each officer or board member; (2) the amount of investment of any
investors; (3) a list of employees including their salaries and/or other payments made to the
employees for the past two years; (4) the percentage of ownership of each owner; (5) the
accounts receivable for the past two years (including a list of companies subscribing to
Spamhaus Technology, Ltd.’s services); (6) accounts payable for the past two years; (7) bank
statements for the past two years; (8) profit and loss ledgers for the past two years; and (9) the
dates and amounts of any dividends paid to shareholders. (Mot. ¶ 8.) Plaintiffs have made a
similar demand for information relating to Ultradesign. (Id. ¶ 15.)]

Under Federal Rule of Civil Procedure 34, a party may only be compelled to produce documents in that party’s ”possession, custody, or control.” However, if a party cannot “order” a third party to turn over documents to the party, the documents are not within the “custody or control” of that party. Chaveriat v. Williams Pipe Line, 11 F.3d 1420, 1426-27 (7th Cir. 1993). Indeed, “the fact that a party could obtain a document if it tried hard enough and maybe if it didn’t try hard at all does not mean that the document is in its possession, custody, or control; in fact it means the opposite.” Id.

In Chaveriat, plaintiff alleged that defendant contaminated its land, and retained Eiler to clean up the contamination. Id. at 1423. Eiler subsequently retained TSC to take soil samples of the land, and TSC then hired NET to test the soil samples that were collected and report its findings to TSC. Id. After receiving the results from NET, TSC reported its findings to Eiler. Id. After being sued for the cost of cleaning up the contamination, Defendant requested that Plaintiff produce the chromatograms related to the contamination testing. Plaintiff, however, only had the final reports of TSC and NET in its possession, not the chromatograms, which NET had prepared and still possessed. The Seventh Circuit held that under Rule 34(a)(1), Plaintiff did not have to produce the documents requested because Plaintiff did not have custody or control over the documents and could not order NET to surrender the documents to them. Id. at 1426-27. Furthermore, even though Plaintiff could have asked NET for the documents through a subpoena duces tecum and NET would have been required to comply, there was no duty on TSC to produce them. Id.

Furthermore, in In re Uranium Antitrust Litigation, 480 F. Supp. 1138, 1142-44 (N.D. Ill., 1979), a number of discovery demands were made involving a combination of foreign and domestic parents and subsidiaries. The Court found there was no control over the requested documents because (1) the parent company owned 43.8% of subsidiary; (2) a minority of subsidiary directors were officers of parent; (3) the subsidiary kept its own books and records; (4) the subsidiary held its own corporate meetings separate and apart from parent; and (5) the subsidiaries shares were publicly traded and owned by more than 11,000 shareholders. Id. at 1152. However, the Court found “control” over two subsidiaries because the subsidiaries were wholly-owned by the parent company. Id. at 1152-54. Thus, the Court held that the test for determining whether a court could order a corporation to produce the documents of an alleged subsidiary was “‘[I]f a corporation has power, either directly or indirectly, through another corporation or series of corporations, to elect a majority of the directors of another corporation, such corporation may be deemed a parent corporation and in control of the corporation whose directors it has the power to elect to office.’” Id. at 1144-45.

In addition, the Third Circuit has held that the mere fact that a director and minority shareholder of a U.S. corporation was the Chairman of the Board of a related Swiss Corporation was insufficient to compel the U.S. Corporation to produce documents in the possession of the non-litigating Swiss Corporation. Gerling Int'l Ins. Co. v. Commissioner, 839 F.2d 131, 141 (3d Cir. 1988).

Here, the simple fact is that Project has no possession or control over the documents Plaintiffs have requested regarding Technology or Ultradesign:

 Project does not own any percentage of Technology or Ultradesign.
 Technology shares only one director with Project and Ultradesign shares only one partner with Project, and therefore has no managerial control over either entity.
 Project, Technology, and Ultradesign each maintain separate books and records in different physical locations.
(Linford Spam Teq Aff. ¶¶ 7, 9, 11, 12; Linford Ultradesign Aff. ¶¶ 8, 10, 12, 13.) Steve Linford, individually or in his role as the Director of Project, has no authority to access the books or records of Technology or Ultradesign. (Linford Spam Teq Aff. ¶¶ 11, 12; Linford Ultradesign Aff. ¶¶ 12, 13.) Just as Al Gore, as a Director of both Google and Apple, would have no authority to provide documents relating to Apple in a suite (sic) against Google, Steve Linford lacks any authority as a Director of Project to provide any non-public information or documents relating to Technology or Ultradesign. Simply put, Plaintiffs want to force Steve Linford, as the Director of Project, to misuse his role as a Director of Technology and Ultradesign, in an attempt to force these companies to produce documents. That is improper.

Despite their opportunity to obtain documents from Project, and even to take a telephone deposition of Mr. Linford, Plaintiffs have not gathered or offered any factual basis, other than their abject speculation, that Project can “order” the production of documents by either of these separate entities as required by Chaveriat. And, like the parent company in In re Uranium Antitrust Litigation, Project has no “control” over Technology or Ultradesign. Plaintiffs have simply glossed over this threshold question. Plaintiffs’ motion is baseless and should be denied. The denial of Plaintiffs’ motion is not a ruling that they are not entitled to the information on relevance grounds, nor does it mean Plaintiffs cannot seek the information. Rather, Plaintiffs must use an available alternative route for obtaining the desired information - an attempt to obtain the information by obtaining proper service on the entities that do control the information, at which time those issues can be addressed in a UK court.

Respectfully submitted,

THE SPAMHAUS PROJECT

By: ___Craig C. Martin_____________________
Dated: June 13, 2007
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
Matthew M. Neumeier
Howrey, LLP
321 North Clark Street, Suite 3400
Chicago, IL 60610
Telephone: (312) 846-5640
Facsimile: (312) 264-0361

CERTIFICATE OF SERVICE
I, Carrie A. Fino, an attorney, hereby certify that I served the foregoing Defendant’s
Response to Plaintiffs’ Motion to Compel upon:
Joseph L. Kish
Bartly Joseph Loethen
Synergy Law Group, L.L.C.
730 West Randolph Street
6th Floor
Chicago, IL 60661
Phone: (312) 454-0015
Fax: (312) 454-0261
by depositing a copy of same in the United States Mail, postage prepaid, on this 13th day of June
2007.
s/ _Carrie A. Fino______________________

Supplement Briefs

UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.0
Eastern Division

e360 Insight, LLC, et al.
Plaintiff,

v.

Spamhaus Project, The
Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Thursday, June 14, 2007:

MINUTE entry before Judge Charles P. Kocoras :Motion hearing held on 6/14/2007. Plaintiffs are given to 6/21/2007 to supplement their motion [99] to compel. Defendant is given to 6/28/2007 to supplement its response to plaintiffs' motion to compel. Both supplemental briefs are limited to two (2) pages. The Court will rule by mail. Mailed notice(sct, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.

Initial Status Hearing

This matter having been referred to Magistrate Judge Geraldine Soat Brown for proceedings with respect to plaintiffs' motion to compel, an initial status hearing is hereby set before Magistrate Judge Brown on 08/08/07 at 9:00 a.m. in Courtroom 1812 for the purpose of setting a schedule for such proceedings.

MOTION for Leave to File Status Report

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’S MOTION FOR LEAVE TO FILE INSTANTER A STATUS REPORT ON SUGGESTED DEPOSITION

Defendant The Spamhaus Project (“Spamhaus”),1 by and through its attorneys Jenner & Block LLP, respectfully moves this Court for the entry of an order granting Spamhaus leave to file instanter the 4-page Status Report attached as Exhibit A. In support of this motion, Spamhaus states that the parties have agreed that the voluntary telephonic deposition of Steve Linford should not proceed because Plaintiffs’ counsel was not interested in taking the deposition within the scope of Steve Linford’s offer to provide testimony.

[1 Defendant expressly objects to this Court’s jurisdiction over The Spamhaus Project because Defendant is based solely in the United Kingdom and does not conduct or transact business in Illinois. Moreover, Defendant reserves its arguments based on Plaintiffs’ failure to properly effect service of process.]

Because Your Honor suggested that Plaintiffs accept Steve Linford’s prior offer to sit for a telephonic deposition, Spamhaus respectfully desired to advise the Court, prior to the continued hearing date, that the deposition did not proceed and the reasons why it did not proceed.

-2-
Respectfully submitted,

THE SPAMHAUS PROJECT
Dated: August 21, 2007

By: s/David Jiménez-Ekman _________

Craig C. Martin
David Jiménez-Ekman
Carrie A. Fino

JENNER & BLOCK LLP
330 North Wabash Avenue
Chicago, IL 60611
Telephone: (312) 222-9350
Facsimile: (312) 527-0484