EXHIBIT A-2

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 1 of 18

Gordon v. Virtumundo Inc et al Doc. 70 Att. 2

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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PLAINTIFF OMNI

[NO. CV06-0204JCC] - Page 1 of 16

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;

Plaintiff,

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 his marital

community; and JOHN DOES, 1-X,

Defendants.

No. CV06-0204JCC

DEFENDANT SCOTT LYNN’S

FIRST SET OF

INTERROGATORIES AND

REQUESTS FOR PRODUCTION

TO PLAINTIFF OMNI

INNOVATIONS, LLC

TO: Omni Innovations, LLC; and

AND TO: Robert J. Siegel, Attorney for James S. Gordon, Jr.

Defendant Scott Lynn hereby propounds the following requests for production and

interrogatories to Plaintiff, pursuant to Fed. R. Civ. P. 26, 33 and 34. The requests

should be answered in full and the original returned to this office (Newman & Newman,

Attorneys at Law, LLP, 505 Fifth Avenue S., Suite 610, Seattle, Washington 98104)

within 30 days after the date of service. The requested documents should be produced for

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 2 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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[NO. CV06-0204JCC] - Page 2 of 16

inspection and copying at the offices of Newman & Newman, Attorneys at Law, LLP,

505 Fifth Avenue S., Suite 610, Seattle, Washington 98104. You should respond to each

discovery question in accordance with the instructions and definitions set forth below.

The requests for production are continuing in nature within the meaning of Fed R. Civ.

P. 26.

I. INSTRUCTIONS/DEFINITIONS

1. In answering these requests for production, You are required to furnish all

information that is available to You, not merely such information as You know of Your

own personal knowledge, including information in the possession of Your attorneys, or

other persons directly or indirectly employed by or connected with You or Your

attorneys, or anyone acting on Your behalf or otherwise subject to Your control.

2. In answering these requests for production, You are requested to make a

diligent search of Your records and of other papers and materials in the possession,

custody or control of You or Your representatives.

3. The documents requested are not privileged and are reasonably calculated

to lead to the discovery of admissible evidence. If any document is withheld from

production on the ground that its production is privileged due to the attorney-client

privilege, work-product rule or other legally recognized standard preventing its disclosure

to a requesting party, then state separately for each such document: (1) the legal basis on

which You claim protection against discovery; (2) the date of the document; (3) the

nature of the document (e.g. letter); (4) the full name, job title and employer for each

author of the document; (5) the full name, job title, and employer or principal of each

addressee and named recipient of the document; (6) the full name, job title, and employer

of each person who to Your knowledge has knowledge of the communication; and (7) in

general, the substance of the document.

4. These discovery requests shall, to the fullest extent permitted by law, be

deemed continuing, so as to require You, without further request, to provide supplemental

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 3 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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[NO. CV06-0204JCC] - Page 3 of 16

responses within 15 days of acquiring any additional material pertaining to the subject

matter of any of these requests.

5. Unless otherwise specified, You are instructed to answer for the period

from January 1, 2003 to the present.

6. If You cannot answer any of the following discovery requests in full after

exercising due diligence to secure the full information to do so, so state and answer to the

extent possible, specifying Your inability to respond in full, stating whatever information

or knowledge You have concerning the unanswered portion and detailing what You did in

attempting to secure the unknown information. If You do know the name of a person or

entity that may have such information, the name, address and telephone number and the

nature of the information known by such person or entity shall be disclosed in Your

response.

7. The singular form of a noun or pronoun shall be considered to include

within its meaning the plural form of the noun or pronoun so used and vice versa; the use

of the masculine form of a pronoun shall be considered to include within its meaning the

feminine form of the pronoun so used and vice versa; and the use of any tense of any verb

shall be considered to include within its meaning all other tenses of the verb.

8. The lower case form of a defined word shall be considered to include

within its meaning the capitalized form of the word and vice versa.

9. Whenever it is necessary to bring within the scope of these requests

information that otherwise might be construed to be outside their scope, “any” should be

understood to include and encompass “all”; and “all” should be understood to include and

encompass “any”; and “or” should be understood to include and encompass “and,” and

“and” should be understood to include and encompass “or.”

10. “Affected Domains” shall refer to any Internet domain names at which You

or Your users claim to have electronic mail addresses that received AOMs from

Defendants.

11. "AOMs" shall refer to the e-mails with respect to which You seek damages

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NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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[NO. CV06-0204JCC] - Page 4 of 16

from Defendants in this lawsuit.

12. “Communications” means any written communication, conversation, note,

SMS, instant message, email, letter, correspondence or exchange of document. When

identifying or referencing a communication, identify the date of the communication, the

location or means of communication, the parties and witnesses to the communication, and

the substance of the communication. When identifying or referencing an exchange of

more than one communication, include each document in the exchange.

13. The term “Defendants” means the above-captioned defendants in this

lawsuit.

14. The terms "document" and "documents" mean and include any kind of

written, typewritten, or printed material whatsoever, any kind of graphic material, and

any computer readable media including, without limitation, and papers, agreements,

contracts, notes, applications, memoranda, correspondence, instant message exchange,

SMS communications, studies, working papers, letters, telegrams, invoices, personal

diaries, journals, reports, records, books, forms, indexes, transcriptions and recordings,

magnetic tapes, video tapes, wire recordings, disks and printed cards, data sheets, data

processing cards, calendars, interoffice memoranda, minutes and records of any sorts of

meetings, financial statements, financial calculations, estimates, reports of telephone or

other oral conversations, appointment books, maps, drawings, charts, graphs,

photographs, and all other writings and recordings of every kind, however produced or

reproduced, whether signed or unsigned. The terms "document" and "documents"

include, without limitation, originals and all file copies and other copies that are not

identical to the original no matter how or by whom prepared, and all drafts prepared in

connection with any documents, whether used or not. If the original of any document is

not in Your possession, custody or control, a copy of that document should be produced. 

15. The term “identify,” when used in connection with a document, means to

state the date on which the document was prepared, the author of the document, and any

and all recipient(s) of the document.

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NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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16. The term “identify,” when used in connection with an individual, means to

state the individual’s full current name, to state the individual’s full current residential

address, full current business address, email address, instant messaging name, and the

individual’s telephone numbers.

17. The use of the words “include(s)” and “including” should be construed to

mean without limitation.

18. The term “person” includes both individuals and business entities.

19. The term “Plaintiffs” means the above-captioned plaintiffs in this lawsuit.. 

20. The terms “present” or “presently” refer to the date of service of these

interrogatories and shall continue through resolution of this litigation.

21. The term “Responses” refers to Your responses and/or answers to

interrogatories and/or requests for production.

22. The phrase "relating to" means consisting of, summarizing, describing,

reflecting, or referring to in any way.

23. “You” means OMNI INNOVATIONS, LLC, Your agents, affiliates and

subsidiaries.

24. Defendants will move to preclude You from presenting evidence regarding

responsive matters You have failed to set forth in Your responses.

II. INTERROGATORIES

INTERROGATORY NO. 1: Identify each and every e-mail address to which

You contend (as alleged in Paragraph 4.1.3 of Your First Amended Complaint) that

“[D]efendants sent at least one (1) separate item of electronic mail to the Plaintiffs to an

address most likely harvested from domain name registration and/or by other means of

anonymous Internet information harvesting.”

ANSWER:

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 6 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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INTERROGATORY NO. 2: Identify each and every web hosting service,

Internet service provider, or other provider of online services from whom You have

purchased, leased, or otherwise obtained services in relation to Your operation of the

Affected Domains.

ANSWER:

INTERROGATORY NO. 3: Please identify all Internet domain names

registered in Your name or on Your behalf since January 1, 2003 as well as the dates of

such registration and, if applicable, the dates on which such registrations expired.

ANSWER:

INTERROGATORY NO. 4: Please identify any filters, software, or other

system used by You to prevent or reduce the receipt of unsolicited commercial email.

ANSWER:

INTERROGATORY NO. 5: Please identify the type(s) and/or brand(s) of

“auto-responder” software applications that You used to generate the complaint messages

contained in the mailbox files produced in Your First Supplemental Responses to

Defendant’s First Discovery Requests on September 11, 2006.

ANSWER:

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 7 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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INTERROGATORY NO. 6: Please identify any service you provide that

enables users to access content, information, electronic mail, or other services offered

over the Internet. For each such service, please identify the users to whom you provide

that service (including their address, email and phone number), the nature of the service,

the consideration paid for the service.

ANSWER:

INTERROGATORY NO. 7: Please identify (including date, subject line, sender

email and recipient email) any AOM that you contend was initiated by Defendants that

contained, or were accompanied by header information that was materially false or

misleading. For each such AOM, please explain how the header information was

materially false or misleading.

ANSWER:

INTERROGATORY NO. 8: Please identify (including date, subject line, sender

email and recipient email) any AOM that you contend was initiated by Defendants that

did not contain a clearly and conspicuously displayed functioning return email address or

Internet-based mechanism that a recipient may have used to submit, in a manner specified

in the message, a reply email message or other form of Internet-based communication

requesting not to receive future commercial email messages at the email address where

the message was received. For each such AOM, please explain the basis upon which you

make such contention.

ANSWER:

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 8 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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INTERROGATORY NO. 9: Please identify (including date, subject line, sender

email and recipient email) any AOM that you contend was initiated by Defendants that

the Defendants had actual or fairly implied knowledge that the subject headings of the

messages would be likely to mislead a reasonable recipient, under the circumstances,

about a material fact regarding the subject or content matter of the message. For each

such AOM, please explain how the subject headings are likely to mislead a reasonable

recipient.

ANSWER:

INTERROGATORY NO. 10: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that Your users attempted to request, using a mechanism specified in the AOM, to not

receive some or any commercial email from the Defendant and subsequent transmission

by that Defendant was made to that user more than 10 business days after the receipt of

such request. For each such AOM, please explain the basis upon which you make such

contention.

ANSWER:

INTERROGATORY NO. 11: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that did not provide clear and conspicuous identification that the message was an

advertisement or solicitation. For each such AOM, please explain the basis upon which

you make such contention.

ANSWER:

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 9 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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INTERROGATORY NO. 12: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that did not provide clear and conspicuous identification of the opportunity to decline to

receive further commercial emails from the message's sender via the methods specified in

the message. For each such AOM, please explain the basis upon which you make such

contention.

ANSWER:

INTERROGATORY NO. 13: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that did not include the valid physical postal address of either the person who initiated the

message or the person whose product, service, or Internet website is advertised in the

message. For each such AOM, please explain the basis upon which you make such

contention.

ANSWER:

INTERROGATORY NO. 14: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that were sent to email addresses obtained using an automated means of generating email

addresses by combining names, letters, or numbers into numerous permutations. For each

such AOM, please explain the basis upon which you make such contention.

ANSWER:

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 10 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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INTERROGATORY NO. 15: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that used a third party's Internet domain name without permission of the third party, or

otherwise misrepresented or obscured any information in identifying that message's point

of origin or transmission path. For each such AOM, please explain the nature of the

alleged misrepresentation or obscured information.

ANSWER:

INTERROGATORY NO. 16: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that contained false or misleading information in the subject line. For each such AOM,

please explain how the subject line is false or misleading.

ANSWER:

INTERROGATORY NO. 17: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that sought to solicit, request, or take any action to induce a person to provide personally

identifying information by representing oneself, either directly or by implication, to be

another person, without that person's approval or authority. For each such AOM, please

explain the basis upon which you make such contention.

ANSWER:

INTERROGATORY NO. 18: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 11 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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[NO. CV06-0204JCC] - Page 11 of 16

that was sent to email addresses obtained using an automated means from an Internet

website or proprietary online service operated by another person that included, at the time

the address was obtained, a notice stating that the website or service would not give, sell,

or transfer addresses maintained by such website or online service to any other party for

the purposes of initiating email messages. For each such AOM, please explain the basis

upon which you make such contention.

ANSWER:

INTERROGATORY NO. 19: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that contained offers or promotions for prizes in which the quality, type, value, or

availability of a prize was misstated. For each such AOM, please explain the basis upon

which you make such contention.

ANSWER:

INTERROGATORY NO. 20: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that failed to identify the name and address of the promoter and the sponsor of the

promotion. For each such AOM, please explain the basis upon which you make such

contention.

ANSWER:

INTERROGATORY NO. 21: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 12 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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[NO. CV06-0204JCC] - Page 12 of 16

that contained offers or promotions for prizes, gifts, or awards that failed to state the

verifiable retail value of each prize offered in it in immediate proximity on the same page

with the first listing of each prize in type at least as large as the typeface used in the

standard text of the offer. For each such AOM, please explain the basis upon which you

make such contention.

ANSWER:

INTERROGATORY NO. 22: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that contained offers or promotions for prizes, gifts, or awards involving an element of

chance that failed to state the odds the participant had of being awarded each prize with

such odds expressed in Arabic numerals, in ratio form in immediate proximity on the

same page with the first listing of each prize in type at least as large as the typeface used

in the standard text of the offer. For each such AOM, please explain the basis upon

which you make such contention.

ANSWER:

INTERROGATORY NO. 23: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that contained offers or promotions for prizes, gifts, or awards involving an element of

chance that failed to state the odds in such a manner that would have deceived or mislead

a person about that person's chance of being awarded a prize. For each such AOM,

please explain the basis upon which you make such contention.

ANSWER:

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 13 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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INTERROGATORY NO. 24: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that contained an item in an offer that was denominated a prize, gift, award, premium, or

similar term that implied that the item is free yet in order to receive it the intended

recipient would have been required to spend any sum of money, including shipping fees,

deposits, handling fees, payment for one item in order to receive another at no charge, or

the purchase of another item or the expenditure of funds in order to make meaningful use

of the item awarded in the promotion. For each such AOM, please explain the basis upon

which you make such contention.

ANSWER:

INTERROGATORY NO. 25: Please identify (including date, subject line,

sender email and recipient email) any AOM that you contend was initiated by Defendants

that contained offers or promotions for prizes which were not available for immediate

delivery to the recipient for which the recipient was not given a rain check for the prize,

the verifiable retail value of the prize in cash, or a substitute item of equal or greater

verifiable retail value. For each such AOM, please explain the basis upon which you

make such contention.

ANSWER:

III. REQUESTS FOR PRODUCTION

REQUEST FOR PRODUCTION NO. 1: Please produce for inspection all

documents evidencing notices included on websites or online services from which You

allege that Defendants obtained e-mail addresses for recipients at your domain using

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NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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automated means which stated at the time the address was obtained that the operator of

such website or online service will not give, sell, or otherwise transfer addresses

maintained by such website or online service to any other party for the purposes of

initiating, or enabling others to initiate, electronic messages.

RESPONSE:

REQUEST FOR PRODUCTION NO. 2: Please produce for inspection all

documents relating to any agreements, contracts, or relationships which You may have

had with website hosting services, Internet service providers, or other providers of online

services in relation to your use of the Affected Domains.

RESPONSE:

REQUEST FOR PRODUCTION NO. 3: Please produce for inspection all

documents relating to Your configuration and customization of the “auto-responder” files

used to generate the messages contained in the mailbox files produced in Your First

Supplemental Responses to Defendant’s First Discovery Requests on September 11,

2006.

RESPONSE:

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 15 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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Interrogatories and Requests for Production dated this 15th day of November, 2006.

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

By:

Derek A. Newman, WSBA No. 26967

Roger M. Townsend, WSBA No. 25525

Attorneys for Defendants

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 16 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ FIRST SET OF INTERROGS

AND REQ. FOR PRODUC. TO

PLAINTIFF OMNI

[NO. CV06-0204JCC] - Page 16 of 16

VERIFICATION

I, _________________, have read the foregoing Responses to DEFENDANT

LYNN’S FIRST INTERROGATORIES & REQUESTS FOR PRODUCTION, know the

contents thereof, and believe the same to be true.

Dated this ______ day of ____________________, 2006.

________________________________

SUBSCRIBED AND SWORN TO before me this _____ day of ____________,

2006.

Printed Name: 

NOTARY PUBLIC in and for the State of 

_________, residing at 

My Commission Expires: 

CERTIFICATION

The undersigned attorney for Plaintiff has reviewed the foregoing Responses to

DEFENDANT LYNN’S FIRST INTERROGATORIES & REQUESTS FOR

PRODUCTION, and certifies that they are in compliance with Civil Rules 26 and 34. 

DATED: _______________________, 2006.

By: _____________________________

 Attorneys for James S. Gordon, Jr.

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 17 of 18
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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CERTIFICATE OF SERVICE 

CERTIFICATE OF SERVICE

 The undersigned hereby certifies that on this 15th day of November, 2006, I 

caused the foregoing DEFENDANT SCOTT LYNN’S FIRST SET OF

INTERROGATORIES AND REQUESTS FOR PRODUCTION TO PLAINTIFF

OMNI INNOVATIONS, LLC AND CERTIFICATE OF SERVICE to be served via the

methods listed below on the following party

Via Email and Fax to:

Robert Siegel, Esq.

Merkle Siegel & Friedrichsen, P.C.

Email: bob@msfseattle.com

Fax: 206-624-0717

 

I declare under penalty of perjury under the laws of the United States and the State of 

Washington that the forgoing is true and correct and that this declaration was executed on 

November 15th, 2006, at Seattle, Washington.

_____________________________

Diana Au

Case 2:06-cv-00204-JCC Document 70-3 Filed 12/21/2006 Page 18 of 18