EXHIBIT B

Requests for admissions that Defendant Virtumundo propounded on Plaintiffs

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 1 of 16

Gordon v. Virtumundo Inc et al Doc. 84 Att. 2

Dockets.Justia.com
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. 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;

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 VIRTUMUNDO, INC.’S

FIRST SET OF REQUESTS FOR

ADMISSION TO PLAINTIFF OMNI

INNOVATIONS, LLC

TO: Omni Innovations, LLC; and

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

Defendant Virtumundo, Inc. hereby propounds the following Requests for Admission to

Plaintiff James S. Gordon, Jr., pursuant to Fed. R. Civ. P. 26, and 36. These requests should be

answered in full and the original thereof returned within 30 days after the date of service to

Defendant Virtumundo, Inc.’s attorneys, Newman & Newman, Attorneys at Law, LLP, at 505

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 2 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

Fifth Avenue South, Suite 610, Seattle, Washington 98104, and also emailed to

derek@newmanlaw.com. You should respond to each request in accordance with the instructions

and definitions set forth below. These Requests for Admission are continuing in nature within the

meaning of Fed. R. Civ. P. 26.

I. INSTRUCTIONS/DEFINITIONS

1. Pursuant to Civil Rule 36, You are to respond to each of these discovery requests

separately, fully, and under oath.

2. 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.

3. In answering these requests for admission, 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.

4. The information requested herein is not privileged and is reasonably calculated to

lead to the discovery of admissible evidence. If any request is objected to on the ground that the

information is made non-discoverable by 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 item: (1) the legal basis on which You claim protection against discovery; (2) the

relevant date(s) of the information; (3) the nature of the information (e.g., attorney-client

communication); (4) all parties to the communication; (5) the full name, job title, and employer or

principal of each person with knowledge of the information in question; and (6) the general, the

substance of the information.

5. 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 responses

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

requests.

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 3 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

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

January 1, 2003 to the present.

7. 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.

8. 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.

9. 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.

10. 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.”

11. 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 exchanges, 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

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 4 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

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. 

12. 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.

13. 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.

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

without limitation.

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

16. The term “Plaintiffs” includes You, Plaintiffs, Counter-Defendants, and Third

Party-Defendants. 

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

interrogatories and shall continue through resolution of this litigation.

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

and/or requests for production.

19. The term “Responsive Pleading” means Your Answer, Affirmative Defenses,

Counterclaims, Third Party Complaint and any amendments or modifications to any of the

foregoing.

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

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 5 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

or referring to in any way.

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

subsidiaries.

22. The phrase "Allegedly Offending Messages" or "AOMs" shall refer to the

e-mails with respect to which You seek damages from Defendants in this lawsuit.

23. The term “block” is as used in Washington Revised Code section 19.190.050.

24. “Defendants” means the Defendants in this lawsuit.

24. “Defendant Adknowledge” means Defendants VIRTUMUNDO, INC, d/b/a

ADNOWLEDGEMAIL.COM and ADKNOWLEDGE, INC., d/b/a

ADKNOWLEDGEMAIL.COM.

24. The term “Defendant Adknowledge's marketing Partners and Affilliates”

carries the same meanings herein as they did in Paragrah 4 of Plaintiff’s April 3, 2006 declaration

in support of Plaintiff’s Opposition to Defendants’ Motion to Dismiss.

25. “Your customers” means the owners of computers which you contend received

Allegedly Offending Messages.

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

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

II. REQUESTS FOR ADMISSION

REQUEST FOR ADMISSION NO. 1: Admit that you ‘opted in’ to receive e-mail

correspondence from Defendant Adknowledge. 

RESPONSE:

REQUEST FOR ADMISSION NO. 2: Admit that you ‘opted in’ to receive e-mail

correspondence from one of Defendant Adknowledge's Partners and/or affiliates. 

RESPONSE: 

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 6 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

REQUEST FOR ADMISSION NO. 3: Admit that the e-mails You have produced to

Defendants so far in this action are true and correct copies of the AOMs which have not been

altered, modified or otherwise changed.

RESPONSE:

REQUEST FOR ADMISSION NO. 4: Admit that You have produced all of the AOMs to

Defendants in the course of this lawsuit.

RESPONSE:

REQUEST FOR ADMISSION NO. 5: Admit that You voluntarily provided Your contact

information to Defendants, including Your email address.

RESPONSE:

REQUEST FOR ADMISSION NO. 6: Admit that You voluntarily provided Your

contact information to one of Defendant Adknowledge's partners or affiliates.

RESPONSE:

REQUEST FOR ADMISSION NO. 7: Admit that You were not “adversely affected” (as

that term is used in 15 USC 7706(g)(1)) by the AOMs.

RESPONSE:

REQUEST FOR ADMISSION NO. 8: Admit that You did not suffer any actual damages 

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 7 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

from your receipt of the AOMs.

RESPONSE:

REQUEST FOR ADMISSION NO. 9: Admit that, before filing suit in this matter, You

never communicated an ‘opt-out’ or ‘unsubscribe’ request to any Defendant, using the ‘opt-out’

or ‘unsubscribe’ procedure provided in the AOMs.

RESPONSE:

REQUEST FOR ADMISSION NO. 10: Admit that You have no knowledge that

Defendants obtained any of the e-mail addresses to which it transmitted the AOMs from an

internet website or online service which represented to Plaintiffs that the operator of such website

or online service would 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 mail messages.”

RESPONSE:

REQUEST FOR ADMISSION NO. 11: Admit that You have no knowledge that

Defendants obtained the e-mail addresses to which the AOMs were dispatched, using any

“automated means.”

RESPONSE:

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 8 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

REQUEST FOR ADMISSION NO. 12: Admit that None of the subject lines for the

AOMs misrepresented any material facts.

RESPONSE:

REQUEST FOR ADMISSION NO. 13: Admit that You were not actually mislead by any

of the subject lines in the AOMs.

RESPONSE: 

REQUEST FOR ADMISSION NO. 14: Admit that the AOMs all contained either an

‘unsubscribe’ hyperlink or else a return address to which You could send an ‘unsubscribe’

request.

RESPONSE: 

REQUEST FOR ADMISSION NO. 15: Admit that to the best of your knowledge,

Defendant Adknowledge.Com possessed the ability to receive ‘unsubscribe’ messages for at least

30 days following the dispatch of each and every Allegedly Offending Message.

RESPONSE:

REQUEST FOR ADMISSION NO. 16: Admit that those computers that received the

AOMs were not being used in interstate commerce at the time they received the AOMs.

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 9 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

RESPONSE: 

REQUEST FOR ADMISSION NO. 17: Admit that the body of each Allegedly Offending

Message contained a postal address.

RESPONSE:

REQUEST FOR ADMISSION NO. 18: Admit that the body of each Allegedly Offending

Message contained either the word “advertise” or the word “solicitation.”

RESPONSE:

REQUEST FOR ADMISSION NO. 19: Admit that You have no knowledge that the

AOMs identified themselves as emanating from a third party’s domain name without that third

party’s permission.

RESPONSE:

REQUEST FOR ADMISSION NO. 20: Admit that you have knowledge that the any of

the AOMs followed a transmission path other than that which was represented in the respective

headers of the AOMs.

RESPONSE:

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 10 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

REQUEST FOR ADMISSION NO. 21: Admit that the AOMs did not represent

themselves to originate from an individual without that individual’s permission.

RESPONSE:

REQUEST FOR ADMISSION NO. 22: Admit that your belief as to the identity of the

sender of the AOMs did not cause you to provide any personal information to Defendants or any

of them, their marketing partners or their affiliates.

RESPONSE:

REQUEST FOR ADMISSION NO. 23: Admit that You did not attempt to block the

AOMs.

RESPONSE:

REQUEST FOR ADMISSION NO. 24: Admit that You had the ability to block the

AOMs.

RESPONSE:

REQUEST FOR ADMISSION NO. 25: Admit that those AOMs that offered prizes, gifts

and/or awards identified the promoter offering them as well as the sponsor of the promotion.

RESPONSE:

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 11 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

REQUEST FOR ADMISSION NO. 26: Admit that those AOMs that offered prizes also

stated the retail value of each prize offered.

RESPONSE:

REQUEST FOR ADMISSION NO. 27: Admit that those AOMs that offered prizes also

stated the retail value and odds for each prize “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.”

RESPONSE:

REQUEST FOR ADMISSION NO. 28: Admit that the AOMs which offered “prizes,”

“gifts,” “awards” or “premiums,” in those terms, did not require any recipients of the AOMs to

spend money in order to receive or use any such item for its intended purpose.

RESPONSE:

REQUEST FOR ADMISSION NO. 29: Admit that you have no knowledge that any prize

offered in the AOMs was unavailable to Defendants in sufficient quantity to satisfy the reasonably

anticipated response to the offering of the prize.

RESPONSE:

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 12 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

REQUEST FOR ADMISSION NO. 30: Admit that any prize offered in the AOMs was

available for immediate delivery to recipients.

RESPONSE: 

REQUEST FOR ADMISSION NO. 31: Admit that You did not claim any prizes, gifts or

awards from those AOMs that offered them.

RESPONSE:

REQUEST FOR ADMISSION NO. 32: Admit that those AOMs that offered prizes did

not misrepresent the quality, type, value or availability of those prizes.

RESPONSE:

REQUEST FOR ADMISSION NO. 33: Admit that Those AOMs that offered prizes, gifts

and/or awards all contained the following language:

“If you receive a rain check in lieu of the prize, you are entitled by law to receive

the prize, an item of equal or greater value, or the cash equivalent of the offered

prize within thirty days of the date on which you claimed the prize.”

RESPONSE:

REQUEST FOR ADMISSION NO. 34: Admit that You did not attend any

demonstration, seminar, or sales presentation hosted by Defendants or any of them.

RESPONSE:

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 13 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

REQUEST FOR ADMISSION NO. 35: Admit that none of Your customers attended any

demonstration, seminar, or sales presentation hosted by Defendants or any of them.

RESPONSE:

Requests for Admission dated this 30th day of June, 2006.

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

By: ____________________________________ 

Derek A. Newman, WSBA No. 26967

Roger M. Townsend, WSBA No. 25525

John Du Wors, WSBA No. 33987

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 84-3 Filed 01/08/2007 Page 14 of 16
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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

DEFENDANT’S FIRST SET OF 

REQUESTS FOR ADMISSION TO 

PLAINTIFF OMNI

[NO. CV06-0204JCC]

VERIFICATION

I, _________________, have read the foregoing Responses to DEFENDANT

VIRUMUNDO, INC.’S FIRST REQUESTS FOR ADMISSION, 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 VIRTUMUNDO, INC.’S FIRST REQUESTS FOR ADMISSION, and certifies

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

DATED: _______________________, 2006.

By: _____________________________

 Attorneys for James S. Gordon, Jr.

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NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98104

phone: (206) 274-2800

fax: (206) 274-2801

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 30th day of June, 2006, I caused the 

foregoing DEFENDANT VIRTUMUNDO, INC.’S FIRST SET OF REQUESTS FOR

ADMISSION TO PLAINTIFF OMNI INNOVATIONS, LLC AND CERTIFICATE OF

SERVICE to be served via the methods listed below on the following party:

Via Email to:

Robert Siegel, Esq.

Merkle Siegel & Friedrichsen, P.C.

Email: bob@msfseattle.com

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 June

30th, 2006, at Seattle, Washington.

________________________

Diana Au

Case 2:06-cv-00204-JCC Document 84-3 Filed 01/08/2007 Page 16 of 16