Mickey Chandler's SpamSuite

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.

Attachment	Date	Size
MotDismissContemptOrder.pdf	10/16/08 4:48 pm	47.43 KB