NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ REPLY RE MOT. TO COMPEL

SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 1

The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES S. GORDON, Jr., a married

individual, d/b/a ‘GORDONWORKS.COM';

OMNI INNOVATIONS, LLC., a

Washington limited liability company,

Plaintiffs,

v.

VIRTUMUNDO, INC, a Delaware

corporation d/b/a

ADNOWLEDGEMAIL.COM;

ADKNOWLEDGE, INC., a Delaware

corporation, d/b/a

ADKNOWLEDGEMAIL.COM; SCOTT

LYNN, an individual; and JOHN DOES,

1-X,

Defendants.

NO. CV06-0204JCC

REPLY IN SUPPORT OF

DEFENDANTS’ MOTION TO

COMPEL SEGREGATION OF

EMAIL PRODUCTIONS

NOTE ON MOTION CALENDAR: 

January 5, 2007

I. INTRODUCTION

In their Response in Opposition to Defendants’ Motion to Compel Segregation of

Emails (the “Opposition”), Plaintiffs do not dispute Defendants’ essential contention: that

in response to Defendants’ discovery requests, Plaintiffs have produced thousands of the

same emails on at least three occasions. Plaintiffs’ protestations that this is how the

emails are kept in the ordinary course of business are disingenuous: a supplemental

production should not include every (or indeed, any) document that was included in a

Case 2:06-cv-00204-JCC Document 81 Filed 01/05/2007 Page 1 of 4

Gordon v. Virtumundo Inc et al Doc. 81

Dockets.Justia.com
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ REPLY RE MOT. TO COMPEL

SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 2

previous production. Far from attempting to switch their burden to Plaintiffs, Defendants

are merely requesting that Plaintiffs provide their supplemental responses in the manner

that they should have provided them in the first place.

Plaintiffs attempt to divert attention from their litigation gamesmanship by

complaining that the entire situation is a result of Defendants’ “unlawful” actions. 

(Opposition at 2:14). Of course, whether or not Defendants’ actions were unlawful is the

very issue to be decided, and in any event does not justify Plaintiffs’ lack of cooperation

with regard to discovery matters. Plaintiffs’ position is especially egregious in that the

documents at issue are the very emails for which Plaintiffs claim to recover. Surely

Defendants should not have to undertake a monumental investigation simply to learn the

basis of Plaintiffs’ claims against them. Defendants are reasonable to request that

Plaintiffs identify the emails underlying their claims in a manner that Defendants can

understand.

As electronic evidence is becoming more common, and is so easily proliferated,

parties can abuse the system by causing adversaries to spend needless resources

duplicating work. The Court should not permit such gamesmanship in this case. 

Defendants respectfully request that this Court order Plaintiffs to provide electronic files

consisting of only emails that have not already been produced.

II. ARGUMENT & AUTHORITY 

Federal Rule of Civil Procedure Rule 26(e) requires parties to supplement their

discovery responses with new or newly discovered responsive material. Rule 26(e)

provides in relevant part:

(e) Supplementation of Disclosures and Responses. A party who has made a

disclosure under subdivision (a) or responded to a request for discovery with

a disclosure orresponse is under a duty to supplement or correct the disclosure

or response to include information thereafter acquired if ordered by the court

or in the following circumstances:

(2) A party is under a duty seasonably to amend a prior response to an

interrogatory, request for production, or request for admission if the

party learns that the response is in some material respect incomplete or

incorrect and if the additional or corrective information has not

otherwise been made known to the other parties during the discovery

Case 2:06-cv-00204-JCC Document 81 Filed 01/05/2007 Page 2 of 4
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ REPLY RE MOT. TO COMPEL

SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 3

process or in writing.

Rule 26(e)(2) thus clearly contemplates that responses will be supplemented with the

additional or corrective information only, not with the entirety of the previous production

as amended by the additional or corrective information. To interpret 26(e) otherwise

would be absurd. In a dispute in which thousands of documents have been produced, and

one new document is discovered, the proper procedure is plainly to produce only the

newly-discovered document, not to re-produce the thousands of documents with the one

newly-discovered document included. Additionally, Plaintiffs should have produced the

documents timely. Plaintiffs do not dispute their counsel had created the files

constituting the third production of emails on September 13, 2006, but did not send them

to Defendants until November 26, 2006 (Motion at 3:20-26), after Defendants had

reviewed the initial production.

Plaintiffs’ arguments are entirely beside the point. Defendants do not dispute that

the segregated emails they seek have already been produced. Indeed, the same emails

were produced three times, as Plaintiffs admit (Opp. at 5:15) (“Plaintiffs have now

provided Defendants with 3 versions...”). Plaintiffs now threaten to produce these emails

a fourth time, regardless of what the Court orders on the motion at bar. (“This is what

Plaintiffs intend to produce in the event that the Court orders them to provide anything

further”) (Opp 8:2-3).

Plaintiffs contend they have produced emails as kept in the ordinary course of

business (though they admit their email services generate no revenue). Even if that is

true, Plaintiffs should not repeatedly produce all such records each time they supplement

their previous production. Plaintiffs imply that “supplement” really means “substitute”

communicating essentially “ignore the previous production, even though you spent tens

of thousands of dollars reviewing it - this is the correct set of emails.” Rule 26(e) plainly

does not contemplate or sanction this behavior.

III. CONCLUSION

Defendants spent substantial resources reviewing and analyzing Plaintiffs’

Case 2:06-cv-00204-JCC Document 81 Filed 01/05/2007 Page 3 of 4
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ REPLY RE MOT. TO COMPEL

SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 4

previous productions. If Plaintiffs are substituting their production, they should produce

only materials not previously produced. Otherwise, Defendants will have to duplicate the

time, effort, and expense associated with their original review. Accordingly, Defendants

respectfully request the Court order Plaintiffs to produce electronic files containing only

unique, non-identical emails that were included in the November 29 production, and

excluding any emails that were produced in any previous production.

DATED this 5th day of January, 2007.

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

By:

Derek A. Newman, WSBA No. 26967

Roger M. Townsend, WSBA No. 25525

Attorneys for Defendants

Case 2:06-cv-00204-JCC Document 81 Filed 01/05/2007 Page 4 of 4