NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DECL. OF DEREK LINKE IN SUPP. OF

DEFS.’ MOT. TO COMPEL DISCOVERY - 1

(CV06-0204JCC)

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

DECLARATION OF DEREK

LINKE IN SUPPORT OF

DEFENDANTS’ MOTION TO

COMPEL

NOTE ON MOTION CALENDAR:

January 5, 2007

I, Derek Linke, swear under penalty of perjury under the laws of the United States

of America to the following:

1. I am a contract attorney for Newman and Newman, Attorneys at Law, LLP,

counsel of record for Defendants Virtumundo, Inc. (“Virtumundo”) and Adknowledge,

Inc. (“Adknowledge”), am over age 18, and competent to be a witness. I am making this

Declaration based on facts within my own personal knowledge.

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Case 2:06-cv-00204-JCC Document 73 Filed 12/21/2006 Page 1 of 6

Gordon v. Virtumundo Inc et al Doc. 73

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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DECL. OF DEREK LINKE IN SUPP. OF

DEFS.’ MOT. TO COMPEL DISCOVERY - 2

(CV06-0204JCC)

A. PLAINTIFFS’ FIRST AND SECOND PRODUCTION OF EMAILS

2. On or about February 24, 2006, Defendants received Plaintiffs’ First

Production (“First Production”) with a cover letter dated February 16th, 2006.

3. Attached hereto as Exhibit A is a true and accurate copy of the cover letter

received by Defendants’ counsel that accompanied the First Production.

4. Plaintiffs’ First Production consists of a CD-ROM disc containing two (2)

mailbox archives in Eudora format containing email allegedly giving rise to Plaintiffs’

cause of action.

5. On or about July 25, 2006, Defendants received Plaintiffs’ Second

Production (“Second Production”) with no accompanying cover letter.

6. Plaintiffs’ Second Production consists of a CD-ROM disc containing an

additional two (2) Eudora mailbox archives containing email allegedly giving rise to

Plaintiffs’ cause of action.

7. The mailbox archives contained in the Second Production are

“Virtumundo.mbx,” containing 5,047 emails, and “Virtumundo - Omni.mbx,” containing

7,016 emails.

B. DEFENDANTS REVIEW OF PLAINTIFFS’ EMAILS

8. Beginning on or about November 16, 2006, Defendants’ counsel engaged a

team of seven contract attorneys to create a comprehensive log of all of the emails

contained in the First Production and the Second Production and their compliance with 15

U.S.C. § 7701 (“CAN-SPAM”) and the Washington Commercial Email Act, RCW

19.190.

9. We trained the contract attorneys on the review process and the relevant law

and spent nearly two weeks reviewing all of the emails in the First Production and the

Second Production.

10. The review of all of the emails in the First Production and the Second

Production required approximately 500 hours of work by the contract attorneys at a cost

of tens of thousands of dollars to Defendants.

Case 2:06-cv-00204-JCC Document 73 Filed 12/21/2006 Page 2 of 6
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DECL. OF DEREK LINKE IN SUPP. OF

DEFS.’ MOT. TO COMPEL DISCOVERY - 3

(CV06-0204JCC)

11. Upon completion of the project on or about December 3, 2006, the contract

attorneys terminated their involvement with Defendant’s counsel.

C. PLAINTIFFS’ THIRD PRODUCTION OF EMAILS

12. On or about November 29, 2006, Defendants received Plaintiffs’ (“Third

Production”). Although the Third Production was accompanied by a cover letter dated

November 14, 2006, Plaintiffs included an additional note about the production dated

September 27, 2006, and digital files with modification dates of September 9, 2006 and

September 13, 2006.

13. The dates on the additional note included in the Third Production and on the

produced archives indicate that Plaintiffs could have produced the evidence contained in

The Third Production much earlier than they actually did.

14. Attached hereto as Exhibit B is a true and accurate copy of the cover letter

received by Defendants’ counsel that accompanied Plaintiffs’ Third Production.

15. Attached hereto as Exhibit C is a true and accurate copy of the additional

note from Plaintiffs, dated September 27, 2006, detailing the contents of the Third

Production.

16. Plaintiffs’ Third Production consists of a CD-ROM disc containing email

stored in Eudora’s mailbox archive format.

17. The archives produced in Plaintiffs’ Third Production have the same file

names as archives produced in the First Production and the Second Production but

contain many additional emails. The archives are “Virtumundo.mbx,” containing 8,124

emails, and “Virtumundo - Omni.mbx,” containing 11,201 emails.

18. We estimate that around 9,000 messages in the Third Production were

previously produced in the First Production and the Second Production, these emails must

also be individually analyzed by Defendants to assess potential liability in this case.

19. Attached hereto as Exhibit D is a true and accurate copy of a letter sent by

Defendants to Plaintiffs’ counsel on November 29, 2006, containing objections to the

form and manner of Plaintiffs’ Third Production.

Case 2:06-cv-00204-JCC Document 73 Filed 12/21/2006 Page 3 of 6
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DECL. OF DEREK LINKE IN SUPP. OF

DEFS.’ MOT. TO COMPEL DISCOVERY - 4

(CV06-0204JCC)

20. As of this date, Defendants have been unable to segregate any new emails

contained in the Third Production from emails previously provided.

21. Attached hereto as Exhibit F is a true and accurate copy of a letter from

Plaintiffs’ counsel dated December, 20, 2006 in which Defendants appear to be unwilling

to assist us in understanding their production in this case.

22. The emails in Plaintiffs’ Third Production are hopelessly disorganized and

unduly burdensome for Defendants to parse and understand.

D. DEFENDANTS’ BURDEN TO REVIEW PLAINTIFFS’ THIRD

PRODUCTION

23. If Defendants’ counsel had received Plaintiffs’ Third Production prior to

November 16, by the beginning of our comprehensive review, the new messages could

have been included in our review process, thus avoiding substantial prejudice to

Defendants.

24. Attached hereto as Exhibit E is a true and accurate copy of an email sent by

Plaintiffs’ counsel to Derek Newman, of this firm, advising that Eudora provided a

software utility relating to sorting mail by date that would automatically segregate the

emails which had been previously produced.

25. I have performed a diligent inquiry and have concluded that Eudora does

not contain any utility to compare mailboxes, not any utility to remove duplicate emails,

nor any utility that could segregate the previously produced emails unless information

identifying such emails were already available.

26. Additionally, the process of sorting by date will not permit us to identify all

additional emails because while a date sort might identify any new emails, which would

appear at the end of the date range, it would not suffice to identify any new emails within

the date range of the emails from the First Production or the Second Production.

27. Attached hereto as Exhibit F is a true and accurate copy of a letter sent by

Plaintiffs’ counsel on December 20, 2006, in which he refused to commit to producing

only the new emails, they have not in fact been produced.

Case 2:06-cv-00204-JCC Document 73 Filed 12/21/2006 Page 4 of 6
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DECL. OF DEREK LINKE IN SUPP. OF

DEFS.’ MOT. TO COMPEL DISCOVERY - 5

(CV06-0204JCC)

28. In a final attempt to eliminate the Court’s involvement in this dispute,

Roger Townsend of this firm sent a letter to Plaintiffs’ counsel, dated December 21, 2006,

a true and accurate copy of which is attached as Exhibit G.

29. Attached hereto as Exhibit H is a true and accurate copy of an email sent

by Plaintiffs’ counsel to Derek Newman and Roger Townsend, of this firm, on December

21, 2006, in which Plaintiffs’ counsel stated that he would consult with his client, but

refused to commit to producing only the new emails.

30. Thus, there was and remains no obvious means of segregating any new

emails that may be contained in the Third Production from the thousands of duplicative

messages that had previously been produced in the First Production and the Second

Production. The only means of comparing them appears to be by undertaking a manual,

one-by-one review of all of the thousands of emails included in the Third Production.

31. Furthermore, even if we were able to segregate any new emails contained in

the Third Production, Plaintiffs’ inexplicable delay in producing the emails contained in

the Third Production until the end of our comprehensive review meant that we were

unable to have the contract team review them prior to ending our relationship with them.

32. In order to review those additional messages now, Defendants would have

to compare all of the new messages contained in Plaintiffs’ Third Production, with our

completed log or begin a new extensive document review. Either option would cost the

client tens of thousands of dollars in additional fees.

33. Also, it is unknown whether the contract attorneys that have already been

trained to review the emails in this case would be available again or whether we would

have to locate and train a new group of attorneys, at considerable expense to Defendants.

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