EXHIBIT G

Case 2:06-cv-00204-JCC Document 70-9 Filed 12/21/2006 Page 1 of 3

Gordon v. Virtumundo Inc et al Doc. 70 Att. 8

Dockets.Justia.com
SENT VIA EMAIL AND FACSIMILE

December 21, 2006

Robert J. Siegel

Merkle Siegel & Friedrichsen, P.C.

1325 Fourth Avenue, Suite 940

Seattle, WA 98101

Re: Gordon v. Virtumundo, Inc., United States District Court,

W. Dist. Wa., Case No. CV06-0204JCC

Dear Bob:

Yesterday, we received your clients’ responses to Defendant Scott Lynn’s

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”). The responses are

deficient in numerous ways, and I request you contact me immediately for

a Fed. R. Civ. P. 37 conference. If you cannot remedy the deficiencies

today, Defendants intend to file a motion to compel this evening, but we

will withdraw it if you cure the deficiencies before the deadline for filing

our reply brief in support of that motion. Our basis for the discovery

motion is as follows:

REFUSAL TO STATE FACTS SUPPORTING PLAINTIFFS’ THEORIES

Defendants are entitled to an explanation of how Plaintiffs were misled by

the subject lines of emails they claim are misleading. This is not a

question of law; rather, it is clearly one of fact. Only Plaintiffs can tell us

how they were misled. Consulting the relevant statutes will not explain

that to us.

In their responses to Interrogatory No. 7, both Plaintiffs refuse to provide

Defendants with this explanation, which they are entitled to as a matter of

law. Instead, Plaintiffs require us to examine the thousands of emails you

have produced, two-thirds of which your client recently admitted are

irrelevant and duplicative. Plaintiffs also refer to an “analysis” and

“legend” you provided in a supplemental discovery response on

Septemeber 11, 2006. Neither the “legend” nor the “analysis” explains

505 Fifth Avenue South

Suite 610

Seattle, Washington

98104

phone 206.274.2800

fax 206.274.2801

www.newmanlaw.com

info@newmanlaw.com

Case 2:06-cv-00204-JCC Document 70-9 Filed 12/21/2006 Page 2 of 3
Robert J. Siegel

December 21, 2006

Page 2 of 2

1

 There are two “10"s in Gordon’s responses, and it appears his responses to Interrogatories 10-22 are

actually responses to Interrogatories 11-23. Please advise if this is not the case.

why Plaintiffs believe certain subject lines are misleading. Consequently, your clients’

answers to Interrogatory No. 7 are unresponsive, and unfairly deprive Defendants of

the opportunity to understand the factual basis of Plaintiffs’ claims.

Similarly, many other discovery responses concerning the allegedly offending emails

are evasive or merely incorporate by reference other defective responses. This is true

of the responses to the following Gordon Requests: Interrogatories 8-10, 13, and 16-

23.1 It is also true of Omni’s response to Interrogatories 8-10, 13, and 16-23.

OTHER DEFICIENCIES

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

which Plaintiffs failed to provide. 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. We believe this lacks

credibility. Plaintiffs must know their own software, especially considering they used it

in furtherance of litigation. 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. These are documents we know your clients should easily be

able to obtain.

Please call me immediately to discuss the above deficiencies and, as always, do not

hesitate to contact me with any additional questions or comments.

Regards,

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

Derek A. Newman

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