The dog ate my discovery responses


When we last visited our intrepid litigants, Spamhaus’ lawyers had filed a motion to dismiss citing yet another failure by e360 to meet a court ordered discovery deadline.
Let me set the stage.
e360 misses deadline after deadline during discovery. They skip depositions. They stall and provide incomplete answers weeks or months after they are due. Finally, in mid-July the Spamhaus’ lawyers file a motion for sanctions. The judge, while sounding a bit peeved (as I detailed in my Aug 29 post), gives e360 yet another chance to actually comply with discovery at a July 30 hearing.
And how, how does e360 respond to the taxed patience of the judge? They miss that deadline, too!
With the mid-August discovery deadline missed, Spamhaus’ lawyers file for dismissal. The plaintiffs race to repair the damage and find a scapegoat.
The scapegoat turns out to be Mr. Peters, one of the lawyers working the case. At the July 30 hearing he petitioned the judge to be released from the case as he was leaving Synergy (e360’s law firm). In their response to the motion to dismiss, the lead attorney blames Mr. Peters for the most recent e360 failure to comply with the judge’s ruling. According to the response Mr. Peters was, despite being removed from the case, responsible for complying with the July 30 ruling. Oh, and the mean old Spamhaus attorneys should have known that e360 was going to comply and did not contact Synergy before filing the motion to dismiss and it is just not FAIR, your honor!
With far more patience than I could muster, the judge agrees to a hearing about the motion to dismiss on September 4. At that time, he agrees to allow e360 to file a supplement to their response to the motion to dismiss and gives Spamhaus the opportunity to respond to that supplemental motion.
Wonder of wonders, e360 finally gets their act together and manages to meet a court ordered deadline when they filed their supplemental motion. Not only that, they included answers to the interrogatories sent by Spamhaus almost a year ago. Magically, the amount of damages e360 claims has gone up by an order of magnitude and 16 new people now know about e360’s financials. Too bad that the judge closed discovery on July 30.
e360’s answers included some interesting financial details, including the fact that e360 managed to sue itself out of business. That takes some serious talent. The other fascinating factoid is that a company with gross income of, roughly, 2.7 million dollars over 5 years is worth over 95 million dollars. While they do provide a formula for how they arrived at that figure, I am deeply suspicious of their claims.
Spamhaus’ response is on point and catalogs all the e360 discovery failures. This most recent failure to meet the court’s deadline is only one in a long line of failures. They emphasized the fact that they have petitioned the court four separate times to compel answers from e360. And, really, Judge, how many times do you want us to have to come back and waste everyone’s time pointing out that, yet again, e360 did not do what you told them they had to do?
The judge will be ruling by mail. No more hearings, the man is done with this. One thing that I have wondered about is why he seems to be prolonging the pain. But, the case has already been kicked back to him from the 7th Circuit Court of Appeals and I suspect he is loathe to do anything that might prompt a successful second appeal. Recent transcripts make it clear he is getting quite peeved that this is still on his docket. Really, all e360 had to do was provide the information they used to come up with the original 11M figure when the case was filed. Their reticence and inability to show any documentation on how they came up with that figure suggests that the figure may have been more wishful thinking than a real number.

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By laura

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