IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,

a Michigan corporation,

Plaintiff,

Case No. 2:09-CV-10756

vs. Hon. Marianne O. Battani

NAVIGATION CATALYST SYSTEMS, INC.,

 a Delaware corporation; BASIC FUSION, INC.,

 a Delaware corporation; CONNEXUS CORP.,

 a Delaware corporation; and FIRSTLOOK, INC.,

 a Delaware corporation,

Defendants.

______________________________________________________________________

Enrico Schaefer (P43506)

Brian A. Hall (P70865)

TRAVERSE LEGAL, PLC

810 Cottageview Drive, Unit G-20

Traverse City, MI 49686

231-932-0411

enrico.schaefer@traverselegal.com

brianhall@traverselegal.com

Lead Attorneys for Plaintiff

Anthony P. Patti (P43729)

HOOPER HATHAWAY, PC

126 South Main Street

Ann Arbor, MI 48104

734-662-4426

apatti@hooperhathaway.com

Attorneys for Plaintiff

William A. Delgado (admission pending)

WILLENKEN WILSON LOH & LIEB LLP

707 Wilshire Boulevard, Suite 3850

Los Angeles, CA 90017

(213) 955-9240

williamdelgado@willenken.com

Lead Counsel for Defendants

John P. Jacobs (P15400)

JACOBS AND DIEMER, P.C.

500 Griswold Street, Suite 2825

Detroit, MI 48226-3480

(313) 965-1900

jpj@jpjpc.com

Local Counsel for Defendants

______________________________________________________________________

JOINT REPORT UNDER FED. R. CIV. P. 26(f)
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Plaintiff, The Weather Underground, Inc., (“Plaintiff”), by and through its counsel,

Traverse Legal, PLC, and Hooper Hathaway, PC, files this joint report under Fed. R.

Civ. P. 26(f)(2).

Meeting of Counsel. A telephonic Rule 26(f) conference was scheduled by

Plaintiff’s counsel and held on December 15, 2009. Enrico Schaefer participated in the

meeting for Plaintiff; William Delgado participated for Defendant. The dates included in

Plaintiff’s portion of this document were proposed to Mr. Delgado during that phone

conference, with no specific objection lodged. On December 16, 2010, Plaintiff

presented a Proposed Planning Conference Report (PPCR), which included all of the

dates and proposals below, which were also discussed during the Rule 26(f)

conference.

On January 2, 2010, Defense counsel sent the email attached as Exhibit A,

indicating for the first time that his client could not agree with the proposed dates.

Defense counsel proposed one (1) year of discovery with no further edits to the PPCR.

Plaintiff’s counsel noted non-compliance with the Court Rules and a concern that

Defendant was simply seeking to delay a jury trial in this matter in an email and

attached letter dated Monday, January 4, 2010. Exhibit B. Later on Monday, Defense

Counsel sent a letter detailing his client’s rationale for their proposed one year of

discovery. Exhibit C. However, no proposed alternatives to any other dates proposed

below were – or have been – provided for inclusion in this Joint Planning Conference

Report (JPCR).
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This JPCR was initially due on December 29, 2009.1 Despite requests for

extensions until January 4, 2010, Plaintiff still has not received information that

Defendant objects to any other portion of this JPCR beyond the discovery period, and

no alternative plan has been submitted for inclusion in this report.

It is Plaintiff’s position that the below discovery plan is adequate and appropriate

for this matter in which (a) Plaintiff’s trademarks are registered and many of them are

incontestable (it does not appear that Defendant will challenge Plaintiff’s marks), (b)

Defendant admits registering all of the subject domains, and (c) Defendant’s primary

defense is that its software system auto-registered the domains. Recall that the only

remaining Defendant in this action is Navigation Catalyst Systems, as the other

Defendants were dismissed for lack of personal matter jurisdiction. It remains Plaintiff’s

belief that Defendant’s goal is to delay discovery and trial.

1. Initial Disclosures Required by Fed. R. Civ. P. 26(a)(1).

The due date for Initial Disclosures under FRCP 26(a)(1)(C) was December 29,

2009, 14 days after the parties’ Rule 26(f) conference conducted on December 15,

1

 FRCP26(f)(2) Conference Content; Parties' Responsibilities.

In conferring, the parties must consider the nature and basis of their claims and

defenses and the possibilities for promptly settling or resolving the case; make or

arrange for the disclosures required by Rule 26(a)(1); discuss any issues about

preserving discoverable information; and develop a proposed discovery plan. The

attorneys of record and all unrepresented parties that have appeared in the case are

jointly responsible for arranging the conference, for attempting in good faith to agree on

the proposed discovery plan, and for submitting to the court within 14 days after the

conference a written report outlining the plan. The court may order the parties or

attorneys to attend the conference in person. (Emphasis added).
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2009.2 Plaintiff served its initial disclosures by the December 29, 2009. Defendant

requested that this due date be extended to January 4, 2010, which was agreed to by

Plaintiff’s counsel. Defendant has yet to file its initial disclosures as required under the

Court rules, or as requested by way of extension, as of this filing on January 5, 2010.

2. Discovery Plan.

Plaintiff’s Proposal:

Plaintiff proposed to Defendant the following discovery plan by transmittal of the

PPCR on December 16, 2009:

(a) Discovery will be needed on the following subjects:

The parties shall conduct discovery on their claims and defenses.

(b) All discovery will commence in time to be completed by June 30,

2010.

(c) The parties shall conduct discovery as provided in the Federal

Rules of Civil Procedure. Plaintiffs also note that there are a large number of

potential third party companies whose trademarks are arguably being infringed

by Defendant NCS. A primary factor in determining whether Defendant NCS is

cybersquatting in bad faith, thus triggering the Court’s award of statutory

damages and attorney fee under 15 U.S.C. §§ 1117(a), (d), is whether NCS has

registered domains which infringe third party trademarks. See 15 U.S.C. §

2

 FRCP 26(a)(1)(C): Time for Initial Disclosures — In General. A party must make the

initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a

different time is set by stipulation or court order, or unless a party objects during the

conference that initial disclosures are not appropriate in this action and states the

objection in the proposed discovery plan. In ruling on the objection, the court must

determine what disclosures, if any, are to be made and must set the time for disclosure.
Page 5 of 9

1125(d)(1)(B)(i)(VIII). Plaintiff intends on sending depositions by written

questions under Fed. R. Civ. Proc. 31 to these third party trademark holders, but

is limited to no more than 10 depositions, including depositions under Fed. R.

Civ. Proc. 30, without leave of court. Plaintiff hereby requests permission under

Fed. R. Civ. Proc. 31(a)(2) to conduct up to ten (10) oral depositions and up to

seventy-five (75) depositions by written questions of third party trademark

holders as necessary.

(d) Expert Discovery:

Expert Disclosures and Reports are due on July 1, 2010.

Expert Depositions will take place by July 30, 2010, or as agreed by

the parties.

Rebuttal expert disclosures are due July 23. 2010

Rebuttal Expert depositions will take place by August 15, 2010, or

as agreed by the parties.

Defendant’s Proposal: Defendant has proposed a 12 month discovery period, as noted

in Exhibits A & C. No other objection was lodged by Defendant during December 15

Rule 26(f) conference or thereafter. No alternative language provided.

(3) Other Agreed Upon Items:

Plaintiff’s Proposal: Plaintiff proposed to Defendant the following discovery plan by

transmittal of the PPCR on December 16, 2009:

(a) Parties should be allowed until February 18, 2010, to join

additional parties and to amend the pleadings.
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(b) All potentially dispositive motions should be filed by

September 10, 2010.

(c) Parties will serve their trial witness and exhibit lists by

August 31, 2010.

Defendant’s Proposal: No objection lodged by Defendant during December 15 phone

conference or thereafter. No alternative language provided.

(d) Jury Trial:

Plaintiff’s Proposal: Plaintiff proposed to Defendant the following discovery plan by

transmittal of the PPCR on December 16, 2009:

A jury trial was timely demanded. The parties estimate trial will occupy

seven (7) days.

Defendant’s Proposal: No objection lodged by Defendant during December 15 phone

conference or thereafter. No alternative language provided.

(4) Fed. R. Civ. P. 26(f)(4). Any other orders that should be entered by the

court under Rule 26(c) or under Rule 16(b) and (c).

Plaintiff’s Proposal: Plaintiff proposed to Defendant the following discovery plan by

transmittal of the PPCR on December 16, 2009:

The parties contemplate proposing entry of a discovery protective order

governing confidentiality in this action. The parties will exchange drafts of a

proposed order to be submitted to the Court.

Defendant’s Proposal: No objection lodged by Defendant during December 15 phone

conference or thereafter. No alternative language provided.
Page 7 of 9

(5) Case Evaluation under L.R. 16.3.

Plaintiff’s Proposal: Plaintiff proposed to Defendant the following discovery plan by

transmittal of the PPCR on December 16, 2009:

A Case Evaluation Form will be filed with the Court. The parties elect

facilitative mediation to be completed by July 1, 2010.

Defendant’s Proposal: No objection lodged by Defendant during December 15 phone

conference or thereafter. No alternative language provided.

(6) Electronic Discovery

Plaintiff’s Proposal: Plaintiff proposed to Defendant the following discovery plan by

transmittal of the PPCR on December 16, 2009:

Counsel have discussed the disclosure and preservation of electronically

stored information, including but not limited to, the form or forms in which such

data will be produced. The parties agree to the following procedures for

preservation, disclosure and management of electronically stored information:

The parties shall take all reasonable steps to ensure the preservation of

electronically stored information; such information shall be considered

encompassed within the parties’ propounded discovery requests; in the event

that any propounded discovery request is alleged to be burdensome by virtue of

the need to search, review, and/or produce electronically stored information, the

parties agree to attempt to work together in good faith to formulate cost-effective

alternatives (including, but not limited to, the use of appropriate search terms);

and the parties agree to confer in good faith on an appropriate, cost-effective
Page 8 of 9

form (i.e., electronic or hard-copy) and format for making productions. To the

extent either party chooses to produce discovery information in electronic form,

said information shall be produced in html, jpg, doc, pdf, txt or other comparable

format on CDs, DVDs or external hard drives. Either party may request that data

also be produced in its native format if reasonable and appropriate subject to

court order. All documents produced by either party whether electronic or

otherwise will contain a unique bates stamp for identification.

The parties are to preserve evidence material to the litigable issues in the

above case and properly discoverable. This includes both paper and

electronically stored information.

Defendant’s Proposal: No objection lodged by Defendant during December 15 phone

conference or thereafter. No alternative language provided.

Dated this 5

th day of January, 2010.

/s/Enrico Schaefer___________________

Enrico Schaefer (P43506)

Brian A. Hall (P70865)

TRAVERSE LEGAL, PLC

810 Cottageview Drive, Unit G-20

Traverse City, MI 49686

231-932-0411

enrico.schaefer@traverselegal.com

Lead Counsel for Plaintiff

Anthony P. Patti (P43729)

HOOPER HATHAWAY, PC

126 South Main Street

Ann Arbor, MI 48104

734-662-4426

apatti@hooperhathaway.com

Counsel for Plaintiff
Page 9 of 9

CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of January, 2010, I electronically filed

the foregoing paper with the Court using the ECF system which will send

notification of such filing to the following:

Enrico Schaefer (P43506)

Brian A. Hall (P70865)

TRAVERSE LEGAL, PLC

810 Cottageview Drive, Unit G-20

Traverse City, MI 49686

231-932-0411

enrico.schaefer@traverselegal.com

brianhall@traverselegal.com

Lead Attorneys for Plaintiff

Anthony P. Patti (P43729)

HOOPER HATHAWAY, PC

126 South Main Street

Ann Arbor, MI 48104

734-662-4426

apatti@hooperhathaway.com

Attorneys for Plaintiff

John P. Jacobs (P15400)

JACOBS AND DIEMER, P.C.

500 Griswold Street, Suite 2825

Detroit, MI 48226-3480

(313) 965-1900

jpj@jpjpc.com

Local Counsel for Defendants

William A. Delgado (admitted pro hac vice)

WILLENKEN WILSON LOH & LIEB LLP

707 Wilshire Boulevard, Suite 3850

Los Angeles, CA 90017

(213) 955-9240

williamdelgado@willenken.com

Lead Counsel for Defendants

/s/Enrico Schaefer___________________

Enrico Schaefer (P43506)

Brian A. Hall (P70865)

TRAVERSE LEGAL, PLC

810 Cottageview Drive, Unit G-20

Traverse City, MI 49686

231-932-0411

enrico.schaefer@traverselegal.com

Lead Counsel for Plaintiff