EXHIBIT A

OBJECTIONS TO EVIDENCE CITED IN

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Evidence (page:line) Objection

“Defendant Virtumundo is a large, highly

successful, privately held corporation

whose primary business consists of

sending billions of commercial electronic

mail messages (hereafter commercial

“commerical emails,” “emails”, “spam

emails,” or “spam”) to hundreds of

millions of people throughout the United

States and the world” (2:2-6)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact. 

“The Wall Street Journal estimates that by

sending this massive volume of spam

Defendant Virtumundo generates annual

revenues as high as one hundred million

dollars ($100,000,000.00)” (2:6-9)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact. Moreover, no

citation to any Wall Street Journal article

is provided. The contents of any such

article would in any event constitute

hearsay and unfounded speculation.

“Approximately 13,000 of Defendants'

spam were received by a small Internet

Access Service located in Washington

State owned and operated by the

Plaintiffs, James S. Gordon Jr. and Omni

Innovations” (2:9-12)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact. 

Case 2:06-cv-00204-JCC Document 82-2 Filed 01/08/2007 Page 1 of 8

Gordon v. Virtumundo Inc et al Doc. 82 Att. 1

Dockets.Justia.com
Evidence (page:line) Objection

“The information the Defendant placed in

the "From" line of these emails does not

accurately identify the sender of the

emails.” (2:13-14)

FRE 901: Lacks foundation

FRE 802: Hearsay

FRE 701: Impermissible opinion

testimony by a lay witness.

Argument: No evidence is cited in support

of this supposed fact, which in any event

is disputed by Defendants. Shopmaker

Decl. ¶ __ (“From” line includes valid,

accurate return e-mail address, which

identifies the sender of the emails).

“Instead, the Defendant placed

ambiguously worded advertising copy in

the "From" line of the header, followed by

an ambiguous email address that provides

no further indication of the actual name of

the sender.” (2:14-15)

FRE 901: Lacks foundation

FRE 802: Hearsay

FRE 701: Impermissible opinion

testimony by a lay witness.

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. See Shopmaker Decl. ¶ __

(“From” line includes accurate description

of Defendants’ business line) . Moreover,

whether or not information is

“ambiguously worded” is a matter of

opinion, not fact. No foundation is

provided as to how an email address could

provide “further indication of the actual

name of the sender”

“When received by a typical email user,

only the advertising copy is shown, and

the recipient has no way of knowing who

sent the email without opening it.” (2:17-

18)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. Shopmaker Decl. ¶ __ (emails

accurately identify sender in “from” line)

Case 2:06-cv-00204-JCC Document 82-2 Filed 01/08/2007 Page 2 of 8
Evidence (page:line) Objection

“Examples of the complete “from” line

from these emails include the

following:

From: “Criminal Justice”

<CriminalJustice@vm-mail.com>

From: “Public Safety”

<PublicSafetyDegrees@vmadmin.com>

From: “Trade In” <TradeIn@vmmail.com>” (3:2-7)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this fact.

“In each of these emails, as is the case

with all 7,890 emails at issue here, no

actual sender is identified in the “From”

line in any meaningful sense.” (3:8-9)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. See Shopmaker Decl. ¶ __

(“From” line includes accurate email

address and accurate description of

Defendants’ business line) 

Case 2:06-cv-00204-JCC Document 82-2 Filed 01/08/2007 Page 3 of 8
Evidence (page:line) Objection

“The Court’s ruling in this case will

determine how multi-million dollar email

marketing corporations like the

Defendants must address the trillions of

emails they send to the general public.

This, in turn, will determine how these

trillions of emails will appear in the

inboxes of hundreds of millions of email

users throughout the United States.

Since the Court’s ruling will clarify both

the Federal and State standard for how the

“From” line of these spam emails is

displayed to the American public, the

Court’s ruling will determine the

amount of time and effort hundreds of

millions of email users will have to

expend to accurately distinguish between

the flood of unwanted commercial emails

that they wish to delete and/or filter from

their inboxes, and the vastly smaller

volume of non-spam email messages

which the recipient actually wants to open

and read as part of their private and

professional lives.” (4:4-14)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. Assumes that “From” line

usage urged by Plaintiffs is more

informative to email recipients than that

used by Defendants, which Defendants

dispute. Shopmaker Decl. ¶ __ 

“The "From name" of the sender is

entirely informational, and exclusively

directed to human beings. The only proper

function of the "From name" is to inform

a human recipient of the true identity of

the sender.” (7:11-13)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

Case 2:06-cv-00204-JCC Document 82-2 Filed 01/08/2007 Page 4 of 8
Evidence (page:line) Objection

“The "From address," on the other hand,

is primarily functional. It provides an

address for a reply email, and is written

using the syntax used by computers to

route email across the internet. The "From

address" is thus information that is

primarily used by computers.” (7:13-16)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

“The "From name" can thus be

distinguished from the "From address"

because the only purpose of the "From

name" portion of the “from” line is to

display, and thereby reveal, the name of

the actual sender to the human being who

receives the email without the recipient

having to actually open the email.” (7:15-

19)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

“An industry publication article from

Constant Contact opens with the

following quote:

According to the DoubleClick Consumer

Email Study released in late 2002, 60% of

respondents cite the "From" line as the

most important factor motivating them to

open emails, while 35% cited the

"Subject" line.” (9:5-10) (Citing Gordon

declaration Exhibit "E")

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

Case 2:06-cv-00204-JCC Document 82-2 Filed 01/08/2007 Page 5 of 8
Evidence (page:line) Objection

“The EmailLabs article (Gordon

declaration Exhibit "D") agrees, stating:

Among the many challenges of

distributing email newsletters and

campaigns are the varying ways that email

clients render your From and Subject

lines. Why is optimizing the From and

Subject lines so important? It's simple,

really. The From line is what recipients

use to determine whether to delete an

email. The Subject line is what motivates

people to actually open the email.” (9:12-

14)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

“As a result, a virtual arms race has

developed between the email marketers,

sometimes known as "spammers" and

their targets, with the spammers

continuingly developing ever more

nefarious ways to circumvent spam filter

countermeasures.” (10:7-9)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

“Tricking recipients into actually clicking

on, and thereby opening spam, is a critical

skill for a successful spammer.” (10:12-

13)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

“Thus, the information in the "From

name" is critical to preventing a recipient

from deleting the spam, and then enticing

the recipient to open it.” (10:13-14)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

Case 2:06-cv-00204-JCC Document 82-2 Filed 01/08/2007 Page 6 of 8
Evidence (page:line) Objection

“The vast majority of e-mail users decide

whether to read the email message, or to

delete it as spam, based only upon two

pieces of information: the "from name"

and the subject line.” (10:15-16)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

“For the spammer hoping to have their

email opened and read, these two fields in

a spam header represent their only

opportunity to convince the target to open

it and read it.” (10:17-18)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

“It is no surprise that sophisticated,

multi-million dollar spammers like the

Defendants here would not want to waste

this valuable space revealing their actual

identity. “ (10:19-20)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

“Instead, they use that space to falsify

their identity by replacing it with

advertising copy.” (10:20-21)

FRE 901: Lacks foundation

FRE 802: Hearsay

Argument: No evidence is cited in support

of this supposed fact, which is disputed by

Defendants. 

Case 2:06-cv-00204-JCC Document 82-2 Filed 01/08/2007 Page 7 of 8
Evidence (page:line) Objection

“Opening an email message from an

unknown source can have catastrophic

consequences. Malicious viruses carried

by spam emails can not only destroy an

unsuspecting recipient's computer by

causing it to "crash", but can also hijack

the recipient's computer to replicate and

send out copies of themselves to all of the

recipient's contacts. The mere act of

opening malicious emails has resulted in

untold damages to computer resources

worldwide.” (13:1-6) (Citing Exhibit F to

Gordon Declaration).

FRE 402: Lacks Relevance

Argument: Plaintiffs do not contend that

Defendants’ emails contained viruses.

This is an attempt to tarnish the

Defendants’ reputation through the “guilt

by association” fallacy. 

“It is notable, perhaps, that one of the

most well known and destructive viruses

in 2005 was actually named after

Defendant "VirtuMundo."” (13:6-8)

(Citing Exhibit G to Gordon Declaration).

FRE 402: Lacks Relevance

Argument: Plaintiffs do not contend that

Defendants’ emails contained viruses.

This is an attempt to tarnish the

Defendants’ reputation through the “guilt

by association” fallacy. 

Case 2:06-cv-00204-JCC Document 82-2 Filed 01/08/2007 Page 8 of 8