NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFENDANTS’ MOTION 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

DEFENDANTS’ MOTION TO

COMPEL DISCOVERY

NOTE ON MOTION CALENDAR: 

January 5, 2007

I. INTRODUCTION

Defendants submit this motion to compel Plaintiffs James S. Gordon, Jr.

(“Gordon”) and Omni Innovations, LLC (“Omni”) (together, “Plaintiffs”) to produce

complete and accurate responses to Defendants’ discovery requests in the abovecaptioned matter. Since the inception of this lawsuit, Defendants have made repeated

requests for Plaintiffs to explain the factual basis of their claims. Plaintiffs have

consistently refused to respond. Instead, they refer Defendants to their massive

Case 2:06-cv-00204-JCC Document 69 Filed 12/21/2006 Page 1 of 9

Gordon v. Virtumundo Inc et al Doc. 69

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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1

 Defendants’ Motion to Dismiss provides more analysis of the lack of substance in

Plaintiffs’ claims based on the Email Statutes. (Dkt. # 30 at 2:10 - 3:15.)

DEFENDANTS’ MOTION TO COMPEL

DISCOVERY - 2

(CV06-0204JCC)

overproduction of alleged email messages, two-thirds of which they recently admitted are

irrelevant. They also refer to an “analysis” and “legend” which do not provide any

meaningful information concerning, for example, why Plaintiffs believe certain subject

lines are misleading. 

If Plaintiffs believe a subject line is misleading or an email transmission path is

obscured, the burden is on them to explain why. In fact, the burden is on them to explain

all factual bases for their claims. Their repeated failure to do so leaves Defendants with

only one alternative – a motion to compel discovery.

II. FACTS

A. Plaintiffs’ complaint does not identify their theories.

In their First Amended Complaint (“FAC”) (Dkt. # 15) Plaintiffs seek statutory

damages arising out of emails allegedly received from Defendants (the “Emails”). The

FAC alleges violations of 15 U.S.C. 7705 et seq. (“CAN-SPAM”) (FAC ¶¶ 4.1.1 - 4.1.6); 

the Washington Commercial Electronic Mail Act, RCW 19.190 et seq. (“CEMA”) and the

Washington Consumer Protection Act (“WCPA”) (FAC ¶¶ 4.2.1 - 4.2.5); and the

Washington state law governing the promotional advertising of prizes, RCW 19.170 et

seq. (the “Prize Statute”) (FAC ¶¶ 4.3.1 - 4.3.2). 

The FAC is replete with conclusory legal allegations but provides no substantive

factual support for them. Plaintiffs merely parrot the elements of CAN-SPAM and

CEMA (the “Email Statutes”) and follow that litany with a conclusory sentence stating

that Defendants have violated the statutes. The following is a representative example:

Plaintiffs merely allege, without elaboration or explanation, that the Emails violate

CEMA because they obscure information identifying the point of origin or the

transmission path of a commercial electronic mail message.1 (FAC at ¶ 4.2.1.) These

allegations are not enough to provide Defendants a fair opportunity to receive notice and

Case 2:06-cv-00204-JCC Document 69 Filed 12/21/2006 Page 2 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFENDANTS’ MOTION TO COMPEL

DISCOVERY - 3

(CV06-0204JCC)

an opportunity to respond to the allegations in this Lawsuit. 

Plaintiffs do not allege how, which, or how many of the Emails violate either of

the Email Statutes. It is not clear whether the Emails allegedly include false and

misleading subject lines, have obscured transmission paths, utilize IP address spoofing, or

any other theory of liability under the Email Statutes. The FAC did not attach any copies

of Emails and, without pleading how each of the Emails violates the Email Statutes,

Defendants cannot ascertain the nature of Plaintiffs’ allegations. Plaintiffs’ WCPA claim

is based entirely on Defendants’ alleged violations of CEMA. (FAC ¶ 4.2.4.) 

Consequently, Defendants’ only possible means of understanding the factual basis for

Plaintiff’s WCPA claim is through discovery.

Plaintiffs’ Prize Statute allegations are equally vague. Plaintiffs merely paraphrase

the subsections of RCW 19.170.030 and allege the Emails violated one provision

“and/or” other provisions of the Prize Statute. (FAC ¶ 4.3.2.) Since the FAC does not

provide any relevant facts, Defendants were required to propound discovery requests

seeking the factual basis for Plaintiffs’ Prize Statute claim.

B. Defendants’ discovery requests seek the factual basis for Plaintiffs’ claims,

but Plaintiffs’ responses are incomplete and evasive.

On November 15, 2006, Defendant Scott Lynn (“Lynn”) propounded his First Set

of Interrogatories and Requests for Production to Plaintiff Gordon (the “Gordon

Requests”) and his First Set of Interrogatories and Requests for Production to Plaintiff

Omni Innovations, LLC (the “Omni Requests”) (together, the “Discovery Requests”). 

(Declaration of Roger Townsend in Support of Defendants’ Motion to Compel Discovery

(“Townsend Decl.”) ¶ 2 Exs. A-1 and A-2.) On December 20, 2006, Plaintiffs provided

a discovery response (“Discovery Response”) which was almost entirely unresponsive,

evasive, and inadequate. (Townsend Decl. ¶ 3 Ex. B.)

1. Plaintiffs refuse to explain how the emails allegedly violate the above

statutes.

Plaintiffs’ entire case is that the Emails allegedly violate the Email Statutes, the

Case 2:06-cv-00204-JCC Document 69 Filed 12/21/2006 Page 3 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFENDANTS’ MOTION TO COMPEL

DISCOVERY - 4

(CV06-0204JCC)

WCPA, and the Prize Statute. Consequently, Defendants’ Discovery Requests ask

Plaintiffs to explain how the Emails violated them. These are all questions of fact. 

a. Interrogatory No. 7.

By way of example, Interrogatory No. 7 in both sets of Discovery Requests seeks

the following information:

Please identify (including date, subject line, sender email and recipient email)

any [Email] that you contend was initiated by Defendants that contained, or

were accompanied by header information that was materially false or

misleading. For each such [Email], please explain how the header information

was materially false or misleading.

(Townsend Decl. ¶ 2 Exs. A-1 and A-2.) This information is highly relevant to Plaintiff’s

claims, and Defendants are entitled to it. It is insufficent to refer Defendants to thousands

of Emails, claim the headers are misleading, and force Defendants to guess why Plaintiffs

believe they are misleading. If Plaintiffs were misled by certain Email headers, only they

can explain how they were misled. This is clearly a question of fact, and Defendants

must depend on Plaintiffs to answer it. 

Unfortunately, Plaintiffs chose not to explain how they were misled by the headers

of the allegedly offending Emails. Both Gordon and Omni responded to Interrogatory

No. 7 as follows:

Plaintiff has provided copies, in at least 2 different formats, of the subject

[Emails]. Each [Email] is alleged to contain false, and/or misleading

information in the headers. The information provided by Plaintiff includes a

detailed analysis of the headers of each [Email], indicating those particular

portions of the headers containing allegedly false and/or misleading

information. Plaintiff has also provided a legend explaning how the

designations were made... 

(Townsend Decl. ¶ 3 Ex. B.)

This evasive response continues Plaintiffs’ history of asking Defendants to do their

work for them. (Townsend Decl. ¶ 4.) To date, Plaintiffs have provided Defendants with

electronic copies of over thirty-eight thousand (38,000) Emails. (Id. ¶ 5.) Plaintiffs have

never provided an explanation of why they consider these emails to have violated various

provisions of the Email Statutes, WCPA, or Prize Statute. (Id.) What they have done is

require Defendants to spend considerable amount of money hiring lawyers to work fullCase 2:06-cv-00204-JCC Document 69 Filed 12/21/2006 Page 4 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFENDANTS’ MOTION TO COMPEL

DISCOVERY - 5

(CV06-0204JCC)

time preparing an analysis of the thirty-eight thousand (38,000) Emails. (Id.) This week –

after Defendants had spent a great deal of money in reviewing those Emails – defendant

Gordon admitted two-thirds (2/3) of the Emails were superfluous: “Due to the

voluminous number of spams received from Defendants, a precise number has been

difficult to ascertain, and I apologize to the Court for having stated different numbers at

different times in this litigation... The most recent count, after making my best effort to

further sort and delete any duplicates appears to be 13,800 emails.” (Declaration of

James S. Gordon, Jr. in Support of Plaintiff’s Motion for Partial Summary Judgment (Dkt.

# 63) ¶ 26.) In other words, Plaintiffs required Defendants to sift through twenty-four

thousand (24,000) superfluous Emails, wasting a vast amount of Defendants’ time and

money. (Townsend Decl. ¶ 5.) 

Defendants spent this time and money attempting to understand Plaintiffs’ claims

because Plaintiffs have not bothered to do that themselves. (Townsend Decl. ¶ 6.) 

Plaintiffs’ claims in their above answer to Interrogatory No. 7 are totally inaccurate – they

have not provided a “detailed analysis of the headers of each [Email]”, and their

purported “legend” provides no useful information. (Id.) The response to Interrogatory

No. 7 is an apparent reference to Plaintiffs’ First Supplemental Responses to Defendant

[Virtumundo]’s First Discovery Requests, which they provided to Plaintiffs on September

11, 2006. (Id. Ex. C.) Virtumundo’s Discovery Requests, like Lynn’s current Discovery

Requests, asked detailed factual questions concerning why Plaintiffs believed certain

Email headers were misleading, which Email transmission paths were allegedly obscured,

and so forth. (See, e.g., Townsend Decl. ¶ 7 Ex. D, Interrogatory No. 4.) In response,

Plaintiffs provided an “Email Analysis” (the “Analysis”) which does not actually

“analyze” anything; rather, it highlights certain portions of certain Emails and requires

Defendants to decipher them. (Townsend Decl. ¶ 8 Ex. E.) For example, the first page of

the “Email Analysis” highlights the words “Location: Chicago, IL” in one Email, but does

not explain how that is misleading. (Id.) Moreover, the Analysis purports to “analyze”

only approximately two thousand (2,000) of the thirty-eight thousand (38,000) Emails

Case 2:06-cv-00204-JCC Document 69 Filed 12/21/2006 Page 5 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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2

 Gordon numbered two responses “10 ”. The second “10”, through his response

to Interrogatory No. 22, actually appear to be responses to Interrogatories 11 through 23. 

Accordingly, Defendants assume for purposes of this motion that Gordon’s responses

numbered “15 ” and “16 ” are responses to Interrogatories Nos. 16 and 17. In the event

Plaintiffs do not provide clarification before the noting date of this motion, Defendants

request this Court order them to do so.

DEFENDANTS’ MOTION TO COMPEL

DISCOVERY - 6

(CV06-0204JCC)

Plaintiffs have provided to Defendants. (Id.)

Plaintiffs’ “Legend” is equally vague, confusing, and inadequate. (Townsend

Decl. ¶ 9 Ex. F.) For example, on page 3 of the Legend, Plaintiffs highlight the line

“Subject: Test your internet connection speed lynkstation”, but they do not specify how

this subject line misled them. (Id.)

In sum, Plaintiffs’ responses to Interrogatory No. 7 of the Discovery Requests do

not explain how any subject lines allegedly misled them. (Townsend Decl. ¶ 10.) 

Instead, they continue to force Defendants to wade through a massive, disorganized

document production Plaintiffs admit was three times as large as it should have been. 

(Id.) They also refer Defendants to an Analysis and Legend which do not explain the

factual basis of Plaintiffs’ claims. (Id.) Their response to the Discovery Requests is

seriously inadequate, and they should be required to supplement it without delay.

b. Plaintiffs’ Other Responses Concerning the Allegedly Offending

Emails Are Similar to Interrogatory No. 7 or Incorporate It by

Reference.

Plaintiffs continue their pattern of evasion in other discovery responses. Gordon

incorporates his answer to Interrogatory No. 7 in his responses to the following Gordon

Requests: Interrogatory No. 8, and apparently Interrogatories Nos. 16 and 17.2

(Townsend Decl. ¶ 3 Ex. B.) Omni incorporates its answer to Interrogatory No. 7 in its

responses to the following Gordon Requests: Interrogatories Nos. 8 and 15-17. (Id.) As

indicated above, Interrogatory No. 7 specifically asks about misleading Email headers. It

is therefore nonresponsive when Defendants reference their answer to that interrogatory

when responding to (for example) Interrogatory No. 8, which asks about return email

addresses and “opt-out” mechanisms. (Id. ¶ 2 Exs. A-1 and A-2.)

Case 2:06-cv-00204-JCC Document 69 Filed 12/21/2006 Page 6 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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3

 It is unclear whether Gordon’s response numbered “18 ” is a response to

Interrogatory No. 18 or 19. 

DEFENDANTS’ MOTION TO COMPEL

DISCOVERY - 7

(CV06-0204JCC)

Other nonresponsive answers include the following:

Interrogatory No. 9 in both sets of Discovery Requests asks for information

relating to Emails with subject headers Defendants should have know were misleading. 

Both Plaintiffs respond by claiming the Emails speak for themselves. (Townsend Decl.

¶ 2 Exs. A-1 and A-2; Id. ¶ 3 Ex. B.) 

Interrogatory No. 10 in both sets of Discovery Requests seeks information

regarding Plaintiffs’ attempts to “opt out” of receiving Emails. Both Plaintiffs respond by

claiming Defendants already have this information, which they do not. (Townsend Decl.

¶ 2 Exs. A-1 and A-2; Id. ¶ 3 Ex. B.)

Gordon’s response to either Interrogatory No. 17 or No. 18 refers to “all emails

sent by Defendants on behalf of First Premier Bank, all of which are contained in

previously provided discovery responses.” Both interrogatories ask Gordon to provide

specific information about specific Emails, and he failed to do that in his response to

those Discovery Requests. (Townsend Decl. ¶ 2 Exs. A-1 and A-2; Id. ¶ 3 Ex. B.) 

Interrogatory No. 18 asks Plaintiffs to identify Emails sent to addresses improperly

obtained by third parties using automated means. Both Plaintiffs claim not to understand

the question3, which is at least as clear as their allegations in the FAC. (Townsend Decl.

¶ 2 Exs. A-1 and A-2; Id. ¶ 3 Ex. B.) The question is clear, and both Plaintiffs should be

ordered to provide a meaningful response.

2. Plaintiffs’ discovery responses are deficient in numerous other respects.

Interrogatory No. 3 in both sets of Discovery Requests asked for registration dates

which Plaintiffs failed to provide. (Townsend Decl. ¶ 11.) Also, the responses to

Interrogatory No. 6 in the Gordon Requests and Interrogatory No. 5 in the Omni Requests

claim Plaintiffs “do not know the name of the particular software” they used to generate

the complaint messages in their September 11, 2006 supplemental responses. (Id.) This

Case 2:06-cv-00204-JCC Document 69 Filed 12/21/2006 Page 7 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFENDANTS’ MOTION TO COMPEL

DISCOVERY - 8

(CV06-0204JCC)

lacks credibility. (Id.) In addition, both Plaintiffs claim, in their responses to Requests

for Production Nos. 2 and 3, that they have no documents relating to their configuration

of “auto-responder” files, nor can they produce any contracts which relate to their email

accounts. (Id.) These are documents Plaintiffs should easily be able to obtain. (Id.) 

C. The parties’ Fed. R. Civ. P. 37 efforts to meet and confer.

On December 21, 2006, counsel for Defendants attempted to contact Plaintiffs’

counsel for a CR 37 discovery conference. (Townsend Decl. ¶ 12 Ex. G.) He was

informed that Plaintiff’s counsel was unavailable. (Id.) Plaintiffs’ counsel has a long

history of being unavailable for long periods of time for discovery conferences and other

matters. (Id. ¶ 13.) Accordingly, Defendants’ counsel reasonably expects further

attempts to resolve this matter without the Court’s involvement will be futile. (Id.)

III. ARGUMENT & AUTHORITY 

A. Standards for granting discovery motions.

 FED. R. CIV. P. 37(a)(2) provides: “If . . . a party fails to answer an interrogatory

submitted under rule 33 . . . the discovering party may move for an order compelling an

answer.” FED. R. CIV. P. 34(b) further provides: “The party submitting the request (for

production) may move for an order under Rule 37(a) with respect to any objection to or

other failure to respond to the request or any part thereof.” An “evasive or incomplete

disclosure, answer, or response is to be treated as a failure to disclose, answer, or

respond.” FED. R. CIV. P. 37(a)(3). In short, Rule 37 authorizes the Court to make any

order it deems just in connection with Plaintiffs’ failure to respond to Defendants’

Discovery Requests.

“The Federal Rules of Evidence create a ‘broad right of discovery’ because ‘wide

access to relevant facts serves the integrity and fairness of the judicial process by

promoting the search for the truth.’” Epstein v. MCA, 54 F.3d 1422, 1423 (9th Cir. 1995)

citing Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993). “Litigants ‘may obtain

discovery regarding any matter, not privileged, that is relevant to the claim or defense of

any party.’” Survivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir.

Case 2:06-cv-00204-JCC Document 69 Filed 12/21/2006 Page 8 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFENDANTS’ MOTION TO COMPEL

DISCOVERY - 9

(CV06-0204JCC)

2005), quoting FED. R. CIV. P. 26(b)(1). For purposes of discovery, relevance is defined

broadly to include “all information ‘reasonably calculated to lead to the discovery of

admissible evidence’”. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th

Cir. 1992), quoting FED. R. CIV. P. 26(b)(1).

B. This Court should compel plaintiffs to produce the requested discovery.

A party suffers prejudice if the opposing party’s failure to cooperate in discovery

“impair(s) the [discovering party’s] ability to go to trial.” Adriana Int’l Corp. v. Lewis &

Co., 913 F.2d 1406, 1412 (9th Cir. 1990); Henry v. Gill Industries, Inc., 983 F.2d 943,

948 (9th Cir. 1993) (A “defendant suffers prejudice if the plaintiff's actions impair the

defendant's ability to go to trial or threaten to interfere with the rightful decision of the

case”) (citation omitted). Here, Plaintiffs’ refusal to produce essential documents and

information causes Defendants substantial prejudice. Defendants cannot prepare an

adequate defense if Plaintiffs do not provide them with the factual basis for their claims. 

It is plainly insufficient to force Defendants to search through a massive overproduction

of documents, make guesses about what facts Plaintiffs will allege at trial, and then face

trial by ambush. Defendants will be severely prejudiced at trial unless this Court orders

Plaintiffs to provide accurate and complete supplemental discovery responses. 

IV. CONCLUSION

Defendants respectfully request that this Court order Plaintiffs to produce the

information and documents requested without further delay.

DATED this 21st day of December, 2006.

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 69 Filed 12/21/2006 Page 9 of 9