NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ 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

DEFENDANTS’ MOTION TO

COMPEL SEGREGATION OF

EMAIL PRODUCTIONS

NOTE ON MOTION CALENDAR: 

January 5, 2006

I. INTRODUCTION

Plaintiffs brought this lawsuit contending damages from the alleged receipt of

unsolicited emails. In February, July and November 2006, Plaintiffs produced thousands

of allegedly offending emails. Each of these productions contained many of the

Plaintiffs’ earlier productions, plus additional emails comingled therein. By way of 

analogy, this is equivalent to a party first producing one hundred (100) bankers boxes of

Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 1 of 8

Gordon v. Virtumundo Inc et al Doc. 71

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.’ MOT. TO COMPEL

SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 2

documents; second, supplementing that response with one hundred ten (110) additional

bankers boxes (consisting of most of the documents in the first hundred bankers boxes,

plus ten additional bankers boxes of documents, intermingled with the documents in the

first hundred boxes); then third, producing yet another two hundred twenty (220) bankers

boxes of documents (consisting of a third copy of most of the documents in the first

hundred bankers boxes produced, plus a second copy of the documents in the second

production, plus ten additional boxes of documents, intermingled with the documents in

the previous two hundred and ten boxes). This hypothetical party has thus produced

three hundred thirty (330) bankers boxes of documents containing only one hundred

twenty (120) boxes of non-identical documents. The remaining two hundred ten (210)

bankers boxes are simply chaff.

The hypothetical is precisely the situation here. In connection with the November

production in particular, Defendants have repeatedly requested that Plaintiffs provide

only emails that were not included in previous productions. Plaintiffs have refused, and

continue to refuse, to do so. Plaintiffs’ repeated production of the same emails (contained

in files intermingled with emails that had not previously been provided) is an egregious

abuse of the discovery process and is plainly improper.

Defendants respectfully request that this Court order Plaintiffs to provide

electronic files consisting of only emails that have not already been produced. If

Defendants’ motion is denied, Defendants will be forced to do a manual comparison of

the files produced on three different dates (and including tens of thousands of emails) at

great expense and effort. Plaintiff’s conduct is particularly egregious in that Plaintiff is in

a position to produce the information requested by Defendants with almost no effort

whatsoever.

II. FACTS 

A. Plaintiffs’ Production of Emails

On or about February 24, 2006, Defendants received Plaintiffs' First Production

(“First Production”) with a cover letter dated February 16th, 2006. Linke Decl. at ¶ 2.

Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 2 of 8
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL

SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 3

Plaintiffs' First Production consists of a CD-ROM disc containing two (2) mailbox

archives in the Eudora electronic data format containing email messages allegedly giving

rise to Plaintiffs' causes of action. Id. ¶ 4. On or about July 25, 2006, Defendants

received Plaintiffs' Second Production ("Second Production") with no accompanying

cover letter. Id. ¶ 5. Plaintiffs' Second Production consisted of a CD-ROM disc

containing an additional two (2) Eudora mailbox archives containing email allegedly

giving rise to Plaintiffs' causes of action. Id. ¶ 6. The mailbox archives contained in the

Second Production were "Virtumundo.mbx," containing 5,047 emails, and "Virtumundo -

Omni.mbx," containing 7,016 emails. Linke Decl. at ¶ 7.

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. Id. ¶ 8. 

Defendants' counsel trained the contract attorneys about the review process and the

relevant law. The lawyers then spent weeks reviewing all of the emails in the First

Production and the Second Production for a total of about 500 hours, at a cost of tens of

thousands of dollars to Defendants. Id. ¶ 9-10. Upon completion of the project on or

about December 3, 2006, the contract attorneys terminated their involvement with

Defendant's counsel. Id. ¶ 11.

On or about November 29, 2006, Defendants received Plaintiffs' Third Production

("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. Id. ¶ 12. 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 months earlier than they actually did. Id. ¶ 13.

Plaintiffs' Third Production consisted of a CD-ROM disc containing an additional

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

Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 3 of 8
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL

SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 4

causes of action. Id. ¶ 16. The archives produced in Plaintiffs' Third Production had the

same file names as archives produced in the First Production and the Second Production

but contained many additional emails. The archives were "Virtumundo.mbx," containing

8,124 emails, and "Virtumundo - Omni.mbx," containing 11,201 emails. Id. ¶ 17.

Defendants estimate that around 9,000 messages in the Third Production were

previously produced in the First Production and the Second Production. Now, these

emails must also be individually analyzed to establish the defense in this case. Id. ¶ 18. 

As of this date, Defendants have been unable to segregate any new emails contained in

the Third Production from emails previously provided. Linke Decl. at ¶ 20. The emails

in Plaintiffs' Third Production are hopelessly disorganized and unduly burdensome for

Defendants to parse and understand. Linke Decl. at ¶ 22.

If Defendants' counsel had received Plaintiffs' Third Production prior to November

16, by the beginning of their comprehensive review, the new messages could have been

included the review process. Id. ¶ 23. Plaintiffs' counsel claimed that Eudora provided a

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

emails which had been previously produced. Id. ¶ 24. However, Defendants performed a

diligent inquiry and concluded that Eudora does not contain any utility to compare

mailboxes, nor any utility to remove duplicate emails or otherwise segregate the

previously produced emails. Id. ¶ 25.

Additionally, the process of sorting by date would not permit Defendants to

identify all additional emails. While a date sort might identify any new emails, which

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

date range of the emails from the First Production or the Second Production. Id. ¶ 26. 

Plaintiffs' counsel on December 20, 2006 refused to commit to producing only the new

emails. Id. As of this date, Plaintiffs have not produced the new emails segregated from

the first two productions. Id. ¶ 27.

There 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

Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 4 of 8
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL

SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 5

previously been produced in the First Production and the Second Production. The only

means of comparing messages appears to be by undertaking a manual, one-by-one review

of all of the thousands of emails included in the Third Production. Id. ¶ 30. Furthermore,

Plaintiffs' inexplicable delay in producing the emails contained in the Third Production

until the end of Defendants’ comprehensive review means Defendants were unable to

have the contract team review them prior to ending disbanding the team. Id. ¶ 31. In

order to review those additional messages now, Defendants would have to compare all of

the new messages contained in Plaintiffs' Third Production with the completed log, or

begin a new extensive document review. Either option would cost Defendants tens of

thousands of dollars in additional fees. Id. ¶ 32.

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

to review the emails in this case would be available again. More likely, Defendants

would have to locate and train a new group of attorneys, at considerable expense. Id. ¶

33.

B. The Parties Fed. R. Civ. P. 37 Efforts to Meet and Confer

On the same date that Defendants received the belatedly produced emails,

November 29, 2006, Defendants sent a letter to Plaintiffs’ counsel outlining their

objections to the belatedly produced emails. See Exhibit E to Linke Decl. Plaintiffs’

counsel refused to segregate the emails. Linke Decl. at ¶ 21. 

On or about December 4, 2006, counsel again met and conferred regarding the

belatedly produced emails. Newman Decl. at ¶ 2. Again on December 14, 2006, during

Defendants’ deposition, the parties met and conferred regarding the subject. See

Newman Decl. at ¶ 5; see also Exhibit E to Linke Decl. In that meeting, Plaintiffs’

counsel advised that he would consult with his client and would use good faith efforts to

produce the information as requested. Id. ¶ 6. However, Plaintiffs’ counsel refused to

commit to producing only the new emails, however, and has not in fact produced them. 

Newman Decl. at ¶ 6; Linke Decl. at ¶ 27, Ex. F. In a final attempt to eliminate the

Court’s involvement in this dispute, Defendants’ counsel sent a letter to Plaintiffs’

Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 5 of 8
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL

SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 6

counsel on December 21, 2006 again requesting segregated production of emails. Once

again, Plaintiff’s counsel stated that he would consult with his client, but refused to

commit to producing only the new emails. Linke Decl., Ex. H.

III. ARGUMENT & AUTHORITY 

This discovery dispute is unusual in that it concerns only the manner of

production, not the substance. At issue is whether Plaintiffs’ two supplemental

productions, each of which contained the entirety of the previous productions, is proper. 

It plainly is not. Identifying which emails among the thousands produced are unique,

non-identical communications would require a manual, email-by-email comparison

between the Third Production and the First Production and Second Production. This

would be a massive undertaking for Defendants, who do not know the sort criteria that

would result in the set of emails required, but a trivial one for Plaintiffs, who do.

Federal Rules of Civil Procedure Rule 34(b) places the obligation on the

responding party to "organize and label" the documents which are produced for

inspection. The reason it does so is that “[m]any discovery requests, and responses

thereto, can be used to harass opposing parties or to increase the cost of litigation.” Stiller

v. Arnold, 167 F.R.D. 68, 71 (D. Ind. 1996) (emphasis added). By way of example, in

Stiller the court found that “producing 7,000 pages of documents in no apparent order

does not comply with a party's obligation under Rule 34(b).” 

Although there is little authority directly on point, it seems clear that production

consisting of successive sets of files commingling documents already produced and new

documents does not comply with the obligation to “organize and label” documents under

Rule 34(b). Indeed, courts that have considered electronic discovery issues tend to simply

assume without discussion that removal of duplicates is a required part of production, to

be completed by the responding party. Thus, in Medtronic Sofamor Danek, Inc. v.

Sofamor Danek Holding, Inc., 2003 U.S. Dist. LEXIS 8587 (D. Tenn. 2003), the court

reasoned:

Producing electronic data requires, at minimum, several steps: (1) designing

and applying a search program to identify potentially relevant electronic files,

Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 6 of 8
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL

SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 7

(2) reviewing the resulting documents for relevance, (3) reviewing the

resulting documentsfor privilege; (4) deciding whether the documentsshould

be produced in electronic or printed form, and (5) actual production. If,

however, the allegedly discoverable information is contained on backup tapes,

a preliminary step must be performed. All data on each backup tape must be

restored from the backup tape format to a format that the standard computer

can read. In the case of a large data volume on multiple tapes like this case

presents, the restored files from each tape must be compared to the restored

files from every other tape and duplicate files eliminated. The restored data

files that are not duplicates must be converted to a common format so that a

search program may seek information within them.

Medtronic Sofamor Danek, Inc. v. Sofamor Danek Holding, Inc., 2003 U.S. Dist. LEXIS

8587 (D. Tenn. 2003). Similarly, in Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, the

court discussion of electronic discovery assumed without analysis that duplicate removal

must is a necessary part of production.

Certainly, if Plaintiffs conduct involved paper rather than electronic documents, it

would be obvious that it was unreasonable, dilatory, and imposed an undue burden on

Defendants. The analysis is not altered because emails are involved. The data, as

provided by Plaintiffs, is functionally unavailable to Defendants. "[W]hether production

of documents is unduly burdensome or expensive turns primarily on whether it is kept in

an accessible or inaccessible format." Data is "accessible" if it is stored in a “readily

usable format” that "does need to be restored or otherwise manipulated to be usable."

Conversely, data is "inaccessible" if it is not readily useable. Quinby v. WestLB AG,

2006 U.S. Dist. LEXIS 64531, 20-21 (D.N.Y. 2006), citing Zubulake v. UBS Warburg,

LLC, 217 F.R.D. 309, 318 (S.D.N.Y. 2003) (internal citations omitted). 

The rules provide that the court may make any order which justice requires to

protect a party from "annoyance, embarrassment, oppression, or undue burden or

expense. . . ." Fed. R. Civ. P. 26(c) (emphasis added). There is no dispute that the emails

are relevant and discoverable. Indeed, they have already been produced. At issue in the

instant motion is the form of the production and whether the Court should require that

Plaintiffs be required to make available the belatedly produced emails in a form that is 

not commingled with thousands of previously produced emails and cannot be segregated

without substantial expense. The form of the production by Plaintiffs subjects to

Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 7 of 8
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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SEGREGATION OF EMAILS

CASE NO. CV06-0204C - Page 8

defendants to undue burden and expense. Moreover, the timing of the production reflects

litigation gamesmanship and has caused Defendants substantial prejudice. Had Plaintiffs

merely produced the emails when the files were created or even when the cover letter was

drafted, then the prejudice to Defendants could have been avoided.

IV. CONCLUSION

Defendants respectfully request that 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 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 71 Filed 12/21/2006 Page 8 of 8