Mickey Chandler's SpamSuite

I'm not very certain what the judge will do with this one. The window for discovery is closed and e360 is finally getting around to filing a motion to compel. I think the time is a bit late and that e360 is on a bit of a fishing expedition.

But, we'll just have to wait and see what the judge rules.

===========================================
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,

v.

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

PLAINTIFFS’ MOTION TO COMPEL

Plaintiffs, e360Insight, LLC and David Linhardt (collectively “Plaintiffs”), by and through their attorneys, Synergy Law Group, LLC, pursuant to Federal Rules of Civil Procedure 37, move for an order compelling answers to Plaintiff’s Interrogatories Nos. 7, 8, 13 and 19 directed to Defendant, The Spamhaus Project, aka The Spamhaus Project Ltd. (“Defendant”), and in support thereof, state as follows:

Introduction

1. On September 21, 2007, the Seventh Circuit entered an opinion affirming the granting of a default judgment against Defendant and remanded the matter for a determination of damages.

2. On December 28, 2007 Plaintiff, e360Insight, LLC, served Defendant with interrogatories pursuant to Fed. R. Civ. P. 33. Attached as Exhibit A is a true and correct copy of the interrogatories.

3. On June 10, 2008 Defendant provided revised responses and objections to the interrogatories. Attached as Exhibit B is a true and correct copy of Defendant’s answers.

-2-
4. On July 9, 2008 at 11:00 a.m., counsel for the Plaintiff, Dan Peters, and counsel for the Defendant, Chad Bell, met in person at the offices of Jenner & Block, LLP to discuss Defendant’s objections to interrogatories nos. 7, 8, 13 and 19.

5. At the July 9, 2008 conference, counsel for Defendant stated that he would discuss the interrogatories with his client, the Defendant, and provide the Plaintiff with his client’s response. No response was received. On October 27, 2008, counsel for the Defendant indicated Defendant would not supplement Defendant’s prior response and wished to stand on its prior objections.

6. Plaintiff has made a good faith attempt to resolve the discovery, however, the parties have been unable to reach an accord.

Response to Defendant’s General Objections

7. General objections are not favored and may only be used to preserve objections based on relevancy. Sullivan v. Conway, 1995 U.S. Dist. LEXIS 14113 *5 (N.D. IL 1995).

8. Defendant’s general objections are not relevant or implicated by the interrogatories at issue for this Motion to Compel.

9. Defendant’s general objections are not stated with the specificity required by Fed. R. Civ. P. 33(b)(4) and should be summarily denied.

-3-
10. With respect to the Defendant’s general objections based on confidentiality or privilege, Defendant has failed to identify the documents or items withheld pursuant to such privilege as mandated by Fed. R. Civ. P. 26(b)(5).

Argument

11. Plaintiffs propounded written interrogatories to obtain information relevant to their claim for damages. The interrogatories at issue deal directly with identifying when damages began to run and the location and types of assets Defendant possesses as a means for satisfying the judgment and ensuring that Defendant does not dissipate assets.

12. The following are the (1) interrogatories at issue, (2) Defendant’s answers and (3) Plaintiffs’ response for purposes of this Motion to Compel:

INTERROGATORY NO. 7: Identify the person or persons involved in the decision to list IP addresses on the SBL.

ANSWER: In addition to the General Objections, Spamhaus objects to Interrogatory No. 7 on the grounds that it is vague, ambiguous and overbroad to the extent that it seeks information that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. This interrogatory is not relevant because it does not seek information relating to damages and is outside the scope of allowable discovery pursuant to the opinion by the Seventh Circuit. Additionally, this interrogatory is overbroad due to its unlimited time frame and misdirected focus.

-4-
RESPONSE: This interrogatory is not vague, ambiguous or overbroad. It is direct and succinct and seeks relevant information. It is related to damages because any such individuals will have knowledge of when SBL listings were made and also have information on the harm caused to the owners of the IP addresses. Plaintiffs will limit the time frame to begin with the decision to list e360 and/or Dave Linhardt on the SBL to the current date. In addition, e360 previously propounded a production request upon the Defendant seeking any documents regarding Defendant’s communications relating to the Plaintiffs, the placement of Plaintiffs on the ROKSO list or the SBL, or other pertinent issues in this matter. Defendant has failed to produce any correspondence from employees of Defendant or any other internal documentation. It is believed several internal documents and emails exist. Defendant has failed to produce any internal correspondence in response to the requests. Defendant has objected to Plaintiffs’ production requests stating that said requests are overbroad. Plaintiffs have been unable to limit or define its requests due to Defendant’s failure to provide Plaintiffs with the information necessary to do so. Plaintiffs therefore seek to compel Defendant’s response so that it may obtain the requested documents.

INTERROGATORY NO. 8: Identify the person or persons involved in the decision to place IP addresses controlled by e360 and/or Dave Linhardt on the SBL.

ANSWER: In addition to the General Objections, Spamhaus objects to Interrogatory No. 8 on the grounds that it is vague, ambiguous and overbroad to the extent that it seeks information that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. This interrogatory is not relevant because it does not seek
-5-
information relating to damages and is outside the scope of allowable discovery pursuant to the opinion by the Seventh Circuit. Additionally, this interrogatory is overbroad due to its unlimited time frame and misdirected focus.

RESPONSE: This interrogatory is not vague, ambiguous or overbroad and it seeks relevant information. It is not vague or ambiguous because it specifically seeks the identity of individuals involved in the decision to place IP addresses controlled by e360 and/or Dave Linhardt on the SBL. It is not overly broad because it is limited to those individuals involved in the decision. It is relevant or may likely lead to relevant information on damages because any such individuals will have knowledge of when SBL listings were made and also have information on the harm caused to the owners of the IP addresses. Plaintiffs will limit the time frame to begin with the decision to list e360 and/or Dave Linhardt on the SBL to the current date. In addition, e360 previously propounded a production request upon the Defendant seeking any documents regarding Defendant’s communications relating to the Plaintiffs, the placement of Plaintiffs on the ROKSO list or the SBL, or other pertinent issues in this matter. Defendant has failed to produce any correspondence from employees of Defendant or any other internal documentation. It is believed several internal documents and emails exist. Defendant has failed to produce any internal correspondence in response to the requests. Defendant has objected to Plaintiffs’ production requests stating that said requests are overbroad.

Plaintiffs have been unable to limit or define its requests due to Defendant’s failure to provide Plaintiffs with the information necessary to do so. Plaintiffs therefore seek to compel Defendant’s response so that it may obtain the requested documents.

-6-
INTERROGATORY NO. 13: Identify all employees and volunteers of Spamhaus and identify the job/function they perform, their salary and any other compensation they receive.

ANSWER: In addition to the General Objections, Spamhaus objects to Interrogatory No. 13 on the grounds that is overly broad, unduly burdensome, and seeks documents not relevant or reasonably calculated to lead to the discovery of admissible evidence on the issue of damages. A list of Spamhaus’ employees or volunteers is not relevant to what damages Plaintiffs have allegedly suffered. This interrogatory is not relevant because it does not seek information relating to damages and is outside the scope of allowable discovery pursuant to the opinion by the Seventh Circuit. Additionally, this interrogatory is overbroad due to its unlimited time frame and misdirected focus.

RESPONSE: This interrogatory is directly relevant to damages as it will allow Plaintiffs to determine if assets were improperly dissipated and it will identify individuals with knowledge of the communications with third parties concerning Plaintiffs and thus allow Plaintiffs to determine when damages started to arise. In addition, e360 previously propounded a production request upon the Defendant seeking any documents regarding Defendant’s communications relating to the Plaintiffs, the placement of Plaintiffs on the ROKSO list or the SBL, or other pertinent issues in this matter. Defendant has failed to produce any correspondence from employees of Defendant or any other internal documentation. It is believed several internal documents and emails exist. Defendant
has failed to produce any internal correspondence in response to the requests. Defendant has objected to Plaintiffs’ production requests stating that said requests are overbroad. Plaintiffs have been unable to limit or define its requests due to Defendant’s failure to
-7-
provide Plaintiffs with the information necessary to do so. Plaintiffs therefore seek to compel Defendant’s response so that it may obtain the requested documents.

INTERROGATORY NO. 19: Identify the location of where data and other assets are stored.

ANSWER: In addition to the General Objections, Spamhaus objects to Interrogatory No. 19 on the grounds that is overly broad, unduly burdensome, and seeks documents not relevant or reasonably calculated to lead to the discovery of admissible evidence on the issue of damages. The location of data and other assets for Spamhaus is not relevant to what damages, if any, Plaintiffs have allegedly suffered. It is Plaintiffs who are claiming that their financial position has been affected by Spamhaus’ actions, and the Seventh Circuit has ordered them to prove it. e360 Insight, LLC v. The Spamhaus Project, 500 F.3d 594, 603 (7th Cir. 2007). Thus, Plaintiffs’ financial information is relevant, but Spamhaus’ financial information is not.

RESPONSE: This interrogatory is not overly broad or unduly burdensome and is directly relevant to allow Plaintiffs to assess the assets and other property of Spamhaus and to determine the ability of Spamhaus to satisfy judgment once damages are calculated. It will also allow Plaintiffs to confirm that assets and data are not being dissipated. It is not overly broad or unduly burdensome because it merely seeks to have Defendant identify its current assets, which is something it certainly does, at least, on a yearly basis.

-8-
Conclusion

For the reasons stated herein, Plaintiffs respectfully request that this Court enter an Order compelling complete answers to Plaintiffs’ Interrogatories Nos. 7, 8, 13 and 19 and for any other such relief that it deems just.

e360Insight, LLC and David Linhardt,
Plaintiffs.

By: /s/ Bartly J. Loethen
One of Their Attorneys
Bartly J. Loethen (6225484)
Joseph L. Kish (6197916)
Shaina A. Moss (6283585)
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Attachment	Date	Size
MotCompeleSpamhausInsuff.pdf	10/28/08 6:43 pm	967.61 KB