Legal filings this week


It has been one of those weeks here and there have been a couple legal things that have come up that I have not had the time to blog about.
One is a post over on Eric Goldman’s blog by Ethan Ackerman discussing the Jeremy Jaynes case. It is quite an info heavy post, but well worth a read.
In addition to not having the time to fully read Ethan’s post and understand the legal subtleties he is discussion, I have not quite had the time to blog about two e360 filings that showed up this week.
The first is a filing by Spamhaus’ lawyers asking for the judge to compel e360 to participate in the discovery process. If you remember e360 won a default judgment against Spamhaus for over $11M. Spamhaus filed an appeal and the Seventh Circuit Court upheld the judgment but vacated damages. Spamhaus and e360 were ordered to conduct discovery on the damages.
I would assume that e360 would be eager to demonstrate the amount of damages Spamhaus caused them, but it appears this is not the case. According to the filing e360 has been missing deadlines and even skipped a planned deposition. The exhibits show numerous email conversations between the lawyers, with e360’s lawyers making repeated promises to deliver, and then failing to follow through.
There are a couple statements in the filing that stood out. First, this paragraph which contains a statement that should have e360’s lawyers shaking in their shoes.

Moreover, the posture of this case makes Plaintiffs’ failure to timely respond to discovery even more troubling. Plaintiffs’ Motion for Default Judgment, filed almost 21 months ago on August 30, 2006, included an affidavit by David Linhardt, stating under oath that Plaintiffs had suffered (1) loss of revenue from cancelled active and pending contracts of $2.465 million and (2) lost prospective business opportunities, enterprise value and reputational damage in the amount of $9.25 million. Presumably, counsel’s duties required counsel to conduct a proper investigation of the basis for these claims (including supporting documents) before filing any affidavit in August 2006. And yet now in the course of discovery in relation to Plaintiffs’ damages claims, Plaintiffs are unable to timely provide any evidence to support the assertion made under oath in an affidavit to this Court. If Plaintiffs were able to make sworn statements that their damages exceeded $11 million in August 2006, the evidence and documentation used to make that determination should have been provided months ago.

Reading between the lines, the Spamhaus lawyers have thrown down the gauntlet and pointed out that the information used to calculate the damage amount should have been collected before the case was even filed and if they lawyers did not have that information, they failed in their duty as officers of the court. I expect this means that the number has only a slight basis in fact, and e360 is struggling to justify the number they plucked out of the air back in 2006.
Of other amusement, Mr. Linhardt skipped a scheduled deposition back in January. He just plain did not show up, no notice, no excuse, nothing. An unwise move on his part, but the crowning glory is that in the responses to the interrogatories e360 repeatedly objects on the basis that the questions “ask for a narrative and are better answered in oral testimony.” I will give e360 and their legal staff credit, it takes a lot of audacity to avoid oral testimony by not showing up and avoiding written testimony by claiming you would rather testify orally.
The other legal filing this week was a motion by e360 to have the judge in e360 v. Comcast reconsider his decision. It seems that e360 is convinced that Comcast is acting in bad faith and the judge is too since the judge said “some people may call e360 a spammer.” This statement is clearly true, a lot of people call e360 a spammer. This filing seems to be a prelude to an appeal, talking with some legal folks it seems judges are not prone to saying, “You’re right! I ruled wrong the first time!”
Given e360 cannot seem to manage meeting deadlines for a single case, it will be interesting to see how well they meet deadlines handling 2 cases (e360 v. Spamhaus, e360 v. Comcast counterclaim) and an appeal (e360 v. Comcast). Just repeating the same arguments and statements over and over has not gotten them very far up until now. At some point, they are going to have to actually start proving their cases.

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