NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DECL. OF ROGER M. TOWNSEND IN SUPPORT

OF DEFS.’ MOT. TO COMPEL OR EXCLUDE - 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 ROGER M.

TOWNSEND IN SUPPORT OF

DEFENDANTS’ MOTION TO

COMPEL OR EXCLUDE

NOTE ON MOTION CALENDAR: 

March 30, 2007

I, Roger M. Townsend, declare and testify as follows:

1. I am over eighteen years of age, counsel for defendants in the above

captioned action, competent to testify to the matters stated in this declaration, and make

this declaration from personal knowledge of those matters.

2. The discovery cutoff in this case was December 15, 2006. After the cutoff,

Plaintiffs filed their Motion for Partial Summary Judgment. In support of that motion,

Plaintiffs served the declarations of seven new witnesses: Anthony Potts, Bonnie Gordon,

Emily Abbey, Jamila Gordon, Jay Gordon, Jonathan Gordon, and Russell Flye. None of

Case 2:06-cv-00204-JCC Document 117 Filed 03/15/2007 Page 1 of 4

Gordon v. Virtumundo Inc et al Doc. 117

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 ROGER M. TOWNSEND IN SUPPORT

OF DEFS.’ MOT. TO COMPEL OR EXCLUDE - 2

[CV06-0204JCC]

these witnesses were mentioned in Plaintiff’s Initial Disclosures, and Plaintiffs never

supplemented their original disclosures.

3. Attached as Exhibit A hereto is a true and correct copy of a letter I sent to

Plaintiff’s counsel on December 20, 2006, requesting the opportunity to depose Plaintiffs’

seven (7) new witnesses. 

4. On December 27, 2006, a week after Defendants’ counsel asked to depose

Plaintiffs’ new witnesses, Plaintiffs’ counsel responded with an email. A true and correct

copy of that email is attached as Exhibit B hereto. The email only referred to three of the

seven new witnesses, and did not provide any contact information for them. The email

suggested some possible deposition dates. Notably, while I had previously requested the

depositions take place before January 15, Plaintiffs indicated January 15 was the earliest

date on which the first of the depositions could take place. 

5. Plaintiffs’ counsel later sent an email regarding one more witness, but again

provided no contact information which would enable Defendants to contact her directly. 

A true and correct copy of that December 28, 2006 email is attached as Exhibit C hereto.

6. As the docket indicates, January 2007 was a busy month for the parties in

this case. Defendants filed their response to Plaintiffs’ Motion for Partial Summary

Judgment, as well as supporting declarations, on January 8, 2007. Moreover, the courtordered deadline for Defendants to file their own Motion for Summary Judgment was

January 22, 2007. Defendants complied with this deadline, and filed the motion and

supporting declarations on that date.

7. The following month, Defendants again contacted Plaintiffs’ counsel

regarding the depositions. On February 21, 2007, I sent an email to Plaintiffs’ counsel

stressing the need to conduct depositions of Plaintiffs’ late-disclosed witnesses as soon as

possible. A true and correct copy of that email is attached hereto as Exhibit D. Plaintiffs

never provided an adequate response.

8. On March 13, 2007, I followed up with a letter to Plaintiffs’ counsel

providing as follows:

Case 2:06-cv-00204-JCC Document 117 Filed 03/15/2007 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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DECL. OF ROGER M. TOWNSEND IN SUPPORT

OF DEFS.’ MOT. TO COMPEL OR EXCLUDE - 3

[CV06-0204JCC]

Thisfollows up our conversation from last week regarding depositions

in the above referenced matter. Effective today, settlement discussions

have officially ended. (See Dkt. # 113). Accordingly, we need to

arrange for depositions to be conducted as soon as possible.

A true and correct copy of that letter is attached as Exhibit E hereto.

9. However, Plaintiffs’ counsel now refuses to cooperate in arranging the

depositions of Plaintiffs’ late-disclosed witnesses. Despite Plaintiffs’ failure to provide

contact information for any of their late-disclosed witnesses, failure to mention possible

deposition dates for several of them, and repeated delays in responding to Defendants’

requests, Plaintiffs’ counsel now ironically claims Defendants are “late” in requesting

depositions. A true and correct copy of the March 13-14 email exchange in which

Defendants’ counsel made this claim is attached as Exhibit F hereto. “Accordingly,”

Defendants’ counsel writes, “we will oppose your attempt to depose those witnesses

now.” 

10. Defendants do not have contact information for Plaintiffs’ late-disclosed

witnesses and therefore cannot serve subpoenas on them. Further, Plaintiffs obtained

declarations from all seven (7) witnesses, and it is therefore reasonable to expect

Plaintiffs can facilitate the requested depositions even though their late-disclosed

witnesses are non-parties. 

11. Counsel for the parties discussed the need for further depositions on March

14, 2007. Defendants’ counsel insisted on taking the depositions and Plaintiffs’ counsel

insisted on opposing Defendants’ efforts. Accordingly, Defendants’ counsel sent an

email to Plaintiffs’ counsel providing as follows:

Per our discussion today, we will move to compel depositions of the

individual customers. If you believe further discussion would be

fruitful, then we are available to discuss arrangementsto facilitate their

depositions.

A true and correct copy of that email is attached as Exhibit F hereto. Plaintiffs’ counsel

has not changed his position. Accordingly, Defendants’ counsel reasonably expects

further attempts to resolve this matter without the Court’s involvement will be futile. 

Case 2:06-cv-00204-JCC Document 117 Filed 03/15/2007 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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DECL. OF ROGER M. TOWNSEND IN SUPPORT

OF DEFS.’ MOT. TO COMPEL OR EXCLUDE - 4

[CV06-0204JCC]

I certify and declare under the penalty of perjury under the laws of the State of

Washington and the United States that to my knowledge the foregoing is true and correct.

Executed on this 15TH day of March, 2007, at Seattle, Washington.

Roger M. Townsend

Case 2:06-cv-00204-JCC Document 117 Filed 03/15/2007 Page 4 of 4