Spamhaus filed a motion today asking the judge to dismiss the e360 v. Spamhaus case for contempt. Mickey, as usual, has the docs up.
I have not posted much on the case recently, as there was only legal wrangling about discovery going on. The biggest problem being that e360 has dragged their feet, stalled and avoided discovery for the last 8 months. They have missed deadlines, turned over incomplete documents and ignored depositions. Since I last wrote about this case, discovery has been extended multiple times, the judge has compelled e360 to turn over docs and information and he sanctioned e360 for their failures to comply.
From my perspective, Spamhaus’ lawyers have been setting the stage for this motion for the last 4 – 5 months. Their interactions with e360’s lawyers, their motions to compel and their motion for sanctions have all formed a narrative of how e360 is stonewalling discovery.
This particular motion is only about 8 pages long, but references a 125 page exhibit. The very large exhibit is mostly documents that have been published before in the “Motion for Various relief due to Persistent Discovery Defaults” filed in July.
In the July motion, Spamhaus’ lawyers detail their repeated efforts to get discovery from e360, and the utter lack of cooperation. One of my favorite bits is that e360 responded (weeks late) to some of the initial interrogatories with (paraphrased), “It is too hard to write all this down, but we will tell you about it in the depositions.” My understanding of the law is that this is, in and of itself, a bit of a no-no. What really puts the icing on the cake, though, is that e360 then skipped 2 properly noticed depositions. They just did not appear, thus making their answers to the interrogatories utterly meaningless.
Spamhaus requested that the Judge impose sanctions on e360 for failing to appear at 2 depositions, not complying with the judge’s previous orders and generally being unable to actually produce any documentation that is complete or on time. Even better, when e360 did manage to produce a thumb drive it contained multiple email conversations between Mr. Linhardt and his lead counsel. This little oops happened because no one at the law firm bothered to actually examine any of the files before handing over the thumb drive. In fact, they only became aware of their error when opposing counsel notified them of the files. When e360 asked for the information back, Spamhaus’ lawyers refused pointing out that they handed over all the information willingly and that their failure to actually examine the files does not constitute an inadvertent disclosure.
The judge did sanction e360, although not with the severity that Spamhaus’ lawyers requested. He also ordered full discovery and documents turned over by August 15th. Based on my reading of the transcript (exhibit 4) the Judge sounds like he is tired of having to tell the e360 lawyers to do their jobs. The judge lectured e360 on their failure to get thing resovled.
You should have acted — your side, not you personally, but your side should have acted — sooner to get this resolved.
And it [sic] is no place in discovery that you say, “These are the only terms that we are going to agree to before a deposition goes forward,” and, then, not show up. You do not have that right or privilege. And you imposed on them and frustrated them in this whole proceeding.
So, that is how we are going to do business.
And there is going to be, in addition to paying for the court reporter, you have to pay $200 to the other side as fees for — as a sanction for — them having to present this motion and me having to resolve it. Okay?
So, that is how we are going to do business.
The judge then moved on to address the issue of sanctions.
So, I will not foreclose Linhardt’s future participation, but he needs to be deposed.
And if there is any problem in scheduling the deposition, I am going to issue even more sanctions. Okay?”
Finally, the judge made it very, very clear that e360 had to answer the interrogatories and could not fall back on producing documents (emphasis added).
Interrogatories, even if there is perhaps some duplication in the information-gathering process, interrogatories cannot be challenged because sometime later somebody may speak to those. That is not a fair ground for not answering otherwise legitimate interrogatories.
So, those need to be answered within the next two weeks. […] It is one thing to say, “Here, look at these documents and let the other side go fishing and searching for an answer. And it is similar to that where you may narrow the reference to a specific document and even to some general group of information on [sic] that document.
But, in this instance, I am going to require specificity in the answer because you have already overused your ability to say, “Here is what is responsive to the interrogatory, but not in answer form,” by giving them a bunch of stuff you are going to make them look through, try and search for an answer and be frustrated in the process.
You sacrificed your opportunity to use that legitimately. So, the idea you are going to reference documents and say. “It is in there,” and narrow the field that they have to look at, is not presently sufficient.
If the answer is in there — if you say the answer is in there responsive to their question — it does not take a whole bunch of extra work for you to take the document and write the answer down to the interrogatory.
There has been enough of this recalcitrance and being sufficiently precise and responsive to inquiries.
And for you to come back here all the time with this kind of stuff is taxing on my patience.
Sounds like an unhappy judge to me. One who is going to be even more unhappy when he discovers that e360 did not take the opportunity he gave them to recover from their multiple errors, but instead ignored this deadline.
I am amazed that the plaintiffs in this case just cannot seem to get it together and actually demonstrate they had any basis for a multi-million dollar claim against Spamhaus. At the July 30 hearing, the judge gave e360 another chance, but promised more sanctions if they did not follow through. Another month, more failures in follow through and another motion before the judge. The only question in my mind is: how far will the sanctions go? Will he actually dismiss the case? Or will he give e360 one more chance?