Landry-Bell v. Various Inc et al - Document No. 39
RESPONSE Memorandum by Various Inc re 35 Rule 26(f) Report. (aty,Rothken, Ira) 5:2005cv01526 Louisiana Western District Court
Content
Landry-Bell v. Various Inc et al
Doc. 39
Case 5:05-cv-01526-TS-MLH
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION SHELLY LANDRY-BELL, Plaintiff, vs. VARIOUS, INC. and ZACH WILHELM, Defendants. Civil Action No. CV05-1526 S Judge Stagg Magistrate Judge Hornsby DEFENDANT VARIOUS, INC.’s MEMORANDUM REGARDING RULE 26F JOINT CASE MANAGEMENT REPORT [Fed.R.Civ.P. 26F]
DEFENDANT VARIOUS, INC.’S MEMORANDUM REGARDING RULE 26F JOINT CASE MANAGEMENT REPORT
Defendant Various, Inc. (hereinafter also referred to as “FriendFinder” or “FriendFinder.com”) hereby submits a response to plaintiff's Memorandum regarding the filing of the Rule 26 Joint Case Management Report. The FriendFinder defendants provide the following Memorandum and attached exhibits to explain why the filed “Joint” Case Management Report was not signed by both parties. Distilled to its essence plaintiff failed to properly meet and confer on Rule 26 issues and failed to properly print out and file FriendFinder's signed Rule 26 Statement even though they were entrusted to do it and were advised in writing on how to do it such that it manifested the June 21st date for initial disclosures. Plaintiff in their Memo failed to also point out that the parties did indeed exchange initial disclosures on June 21st 2006 so that point is moot. In addition, and perhaps most importantly, FriendFinder joins in the Case Management Report on file herein. This memorandum is designed to explain, from FriendFinder’s perspective what happened such that the Court can understand the dynamic between the parties and understand that FriendFinder thought that the fully signed “Joint” report would be filed in a timely fashion by plaintiff’s counsel.
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A.
Plaintiff's Failure to Properly and Efficiently Meet and Confer for the Rule 26 Statement On June 7th, 2006 FriendFinder’s counsel, Ira P. Rothken, faxed Plaintiff's counsel
a letter requesting a phone conference for 3 pm PST to meet and confer regarding the Rule 26 Statement (See Exhibit 000001). On June 8th, 2006, Plaintiff's counsel advised via a return fax that he had already “met and conferred” with FriendFinder's local counsel (See Exhibit 000001). Given that Plaintiff’s counsel failed to include FriendFinder’s lead counsel in the meet and confer process this set up the following chain of events.
1.
There was a delay in providing electronic documents between counsel to facilitate the meet and confer process and Joint filings.
On June 15th Plaintiff’s counsel provided to Ira P. Rothken, FriendFinder’s lead counsel, a draft Rule 26 Statement via fax and was reluctant to provide an electronic copy for FriendFinder’s counsel to edit and return thus delaying the “Joint” editing and filing process. Indeed, when FriendFinder’s counsel writes “Please email us the Word file so we can make edits with redlines....that is how we do it in every other Federal case – thanks…” Plaintiff’s counsel responds “Hey Ira that is a pain. How about just marking up the hard copy and faxing me edits?” (See Exhibit 000002).
2.
There was a failure to include each side’s lead counsel in the meet and confer process on important issues.
On June 21st FriendFinder’s counsel, after converting Plaintiff’s version to an editable format and providing a revised draft Rule 26 Statement in electronic format to Plaintiff’s counsel (See Exhibit 000003-000005) gets an e-mail from Plaintiff’s counsel indicating that he refused to agree to the revised version and that he cannot cut and paste it (See Exhibit 000006). FriendFinder’s counsel then writes to Plaintiff’s counsel the following e-mail (which was not attached to Plaintiff’s exhibits but attached herein as
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Exhibit 000007)) which sums up the problems the parties have had to date communicating on substantive issues in the case: We provided the text to you in both the body of the e-mail (where you can cut and paste) as well as in rtf format. If you think we have overlawyered it just tell me where we disagree and do this in a normal manner and we are happy to make changes to the short document if upon reflection we wrote something inapplicable. It is important that you deal directly with my law firm on the major issues in this case including all substantive meet and confers as we are the lead counsel in the case and we will be handling any trial - we have retained a very able local counsel but that is not an invitation for you to ignore or bypass lead counsel and pretend that you had a substantive meet and confer on the case management issues - as you did not. If we are unable to agree on a joint submission to the Court we will advise the court of your failure to meet and confer with us in a substantive manner on important issues in this case including those in the last paragraph below. Again, we are not so arrogant as to say that our revisions to the joint document are a work of art but given the notion that you have refused to meet and confer with us in any substantive way we were forced to revise it so the Court could hear both sides on important case management issues until we heard back from you on the points we raised and your client's position to see where we agree and disagree. You should call me and we can go through each of the issues by phone at 10 am PST time today or if you do not want to talk you can mark up each section with "plaintiff's positions" and "FriendFinder’s positions" and e-mail it back to us and we can make sure each of our views are accurately represented whatever they may be. In any event please let us know today your views on why this case should not be stayed or dismissed if Mr. Wilhelm is in the military and unavailable overseas given the statute that protects such military persons from civil litigation and given that he is likely an indispensable party to a case where he is the alleged defamer. Also kindly advise us on what discovery you think your client will need and why in
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light of the CDA immunity statute … in a pragmatic sense to decide in good faith what narrow discovery "matters" and is proportional and can change the outcome (by removing the immunity) and [does] not allow a fishing expedition. Further, kindly advise us on who your client may add to the case and why. Also advise if your client is amenable to a two tiered confidentiality order and if you can provide an exemplar for our review and edit. Please advise us on the above and let us know if you will be calling at 10 am PST today so we can be available. Thanks. The parties did not have any “real” meet and confer on the above issues. While plaintiff’s counsel did write a minimalist response to the above in an e-mail response later that day it is hard to discern where the parties agree and disagree and why and what the parties will jointly recommend to the Court if anything i.e. stay. Indeed, it is hard to plan a schedule for discovery and litigation when issues of stay, volume of discovery, who if anyone else may be joined, and the entry of a two tiered confidentiality order all up in the air and un-discussed. This insufficient meet and confer process stems from Plaintiff’s counsel using informal discussions with local counsel on more than one occasion as a method of avoiding substantive meet and confer with FriendFinder’s lead counsel. This sort of technique was used prior to plaintiff filing her motion to strike FriendFinder’s answer. (See Order of the Court filed on April 4, 2006 at pages 2-3.)
3.
There was a failure to cooperate to properly meet and confer by phone.
Plaintiff's counsel has avoided meet and confer by phone and has not responded to invitations to meet and confer by phone. For example, in the initial letter (Exhibit 000001) FriendFinder’s counsel requested a telephonic meet and confer, then again in an e-mail (Exhibit 000003) and then one more time in an email (Exhibit 000008) and plaintiff’s counsel never cooperated in setting a time for Plaintiff’s counsel and FriendFinder’s lead counsel to meet and confer via phone --- overt fax and e-mails requesting a date and time for such oral/telephonic meet and confers were not complied with.
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In addition, inconsistent with Plaintiff 's counsel’s statements to the Court, Plaintiff’s counsel never left a single voice message for FriendFinder’s lead counsel’s voice mail to meet and confer on the Rule 26 Statement – as on the dates plaintiff indicated in their memo FriendFinder’s counsel’s voice mail was temporarily unavailable – that was why FriendFinder’s counsel used e-mail to set such time and date for a phone conference to ensure the availability of counsel for the call(s).
B.
Plaintiff Failed to Properly File FriendFinder's Signed Rule 26 Statement 1. There was a failure by the parties to file a Joint document.
Plaintiff's counsel did not properly print out FriendFinder's Rule 26 Statement and failed to print it with “mark ups on”, after being advised of Plaintiff's mistake in an email Plaintiff's counsel failed to attach to his "Memo" exhibits Exhibit 000010-000013 herein, which explains the inaccurate date plaintiff’s counsel printed out for initial disclosures in the Rule 26 Statement signed by FriendFinder’s counsel. Indeed, in Exhibit 000010 FriendFinder’s counsel explains to Plaintiff’s counsel: David, I have now learned that you printed it incorrectly – when your Adobe Acrobat viewer opens and you hit print in the print window you need to select print document WITH markups and it will print the markup change I made to change the date to June 21st…..thanks, Ira P. Rothken Plaintiff’s counsel by not following the guidance in the e-mail shown above or providing such e-mail to the Court in its exhibits instead provided this court with a misleading statement of what occurred. In light of the fact that plaintiff’s counsel was unwilling to allow FriendFinder’s counsel to e-file the Joint Rule 26 Statement under some theory that he was closer to the Courthouse (See Exhibit 000009) Plaintiff’s counsel was then entrusted by
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FriendFinder’s counsel to file FriendFinder's signed Rule 26 Statement which he failed to do and instead filed their own (manufactured after the fact) Rule 26 Statement and subordinated FriendFinder's signed Rule 26 Statement (printed without “markups on” so thus showing a wrong date for initial disclosures) to an exhibit. See Exhibit 000012000013. The issue of initial disclosures is moot as FriendFinder provided their initial disclosures to plaintiff’s counsel on June 21st (See Exhibit 000011) and was agreed on in a number of e-mails including Exhibit (000014-000015). To bring this matter to a close FriendFinder has reviewed the revised Rule Statement filed by plaintiff herein and joins in such statement. Respectfully submitted, Dated: June 27, 2006 ________/s/_________________ Ira P. Rothken (T.A. - Pro Hac Vice, Cal. Bar 160029) ________/s/_________________ Bennett L. Politz (LSBA Bar No. 10573) Attorneys for Defendant Various, Inc. Local Counsel: Bennett L. Politz (LSBA Bar No. 10573) Booth Lockard Politz & LeSage LLC 920 Pierremont Road, Suite 103 P. O. Drawer 1092 Shreveport, LA 71163 (318) 222-2333 (318) 221-1035 (fax) email: [email protected]
Dated: June 27, 2006
Ira P. Rothken (T.A. - Pro Hac Vice, Cal. Bar 160029) ROTHKEN LAW FIRM LLP 3 Hamilton Landing, Suite 224 Novato, California 94949 Tel: (415) 924-4250 Fax: (415) 924-2905 Email: [email protected]
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CERTIFICATE OF SERVICE I hereby certify that on June 27, 2006, a copy of the foregoing DEFENDANT VARIOUS, INC.’s MEMORANDUM REGARDING RULE 26F JOINT CASE MANAGEMENT REPORT was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to Ira P. Rothken and Bennett L. Politz by operation of the court’s electronic filing system. I also certify that I have faxed and mailed by United States Postal Service, postage prepaid, this filing to the following non-CM/ECF participants: David A Szwak Bodenheimer Jones & Szwak 401 Market St Ste 240 Shreveport, LA 71101 Fax No. (318) 221-6555 Dated: June 27, 2006 ________/s/_________________ Ira P. Rothken (T.A. - Pro Hac Vice, Cal. Bar 160029) ROTHKEN LAW FIRM 1050 Northgate Drive, Suite 520 San Rafael, CA 94903 Tel: (415) 924-4250 Fax: (415) 924-2905 Email: [email protected]
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ROTNKEN L.AWFINM LLP
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11IA FACSIMILE
David A Szwak Bodenheimcr Jones & Szwak 509 Market St Ste 730 LA Shreveport, 71101 Tcl: 318-221-6444 Fax:318-221-5555 Rs SHELLY LANDRY-BELL vs. VARIOUS, INC. rind ZACTI WILHELM' Div', No CV05-1526S U.S. District Couri, W. Dist. of Louisiana,Shreveport Regardiag CaseManagemef,t Meet and Confcr
Dcar Mr. Szwak, Pursuantto the Court's order of May 4, 2006, a copy of which is attachtd for your reference,that the parties were to mcet and co4fel on this caseby today. ordinarily, thc from yow office ou this mattcr' plaintiff initiates such mc€t and confer. Since we have T!!:1td a:rfliggier on Thursday, June 8, 2006 at 3:00 P'rn Pacific Timewc suggestthat wi m€et Plcase contact us immediately to confrrm your availabiliry for such a call'
Very truly yours,
Irh ?. Rothker
Cc: Bennett Politz, local counsel
FF RULE 26(f) Memo - Exhibit 000001
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lra P. Rothken
From: [email protected] 12:49 PM June Sent: Thursday, 15,2006 com com; blpld@softdisk blp@blpld [email protected]; [email protected] lra P. Rothken; To: [email protected];[email protected] Cc: v. et Landry-BellVarious, al Subject:Re:Shelly writes: [email protected] Daylight Time, 12:26:33 Central PM dated 6/15/2006 In a message ar----, other is howwe do it in every withredlines....that ) 1 et"aseemailustheWordfilesowe canmakeedits -.thanks, case I I Feoeral
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just me up fa Heytra,Thatis a pain.Howabout marking the hardcopyandfaxing edits? A. David Szwak & Jones Szwak Bodenheimer, 7th Street, FIoor 509Market Mercantile Building Bank United 71 Louisiana 101 ShreveDort. -6444 318,221 Fax221-6555 www.bjslaw.com ** www.MyFaircredit.com Forum out "* Check the Dispute www. maxedoutmovie.conVindexl.html by Out,"the movie/documentary Trueworks "- CheckOut"Maxed Film at By 11, March 2006, theSouth Southwest Festival Premieres at out Check the clips thesite;I am in the movie!
FF RULE 26(f) Memo - Exhibit 000002
Case 5:05-cv-01526-TS-MLH lra P, Rothken
From: sent: To: Cc:
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lra P. Rothken [[email protected]] June21,200612i42AM Wednesday, blp@blpld com [email protected]; [email protected]; 1507@aol,comi [email protected]; BJKS [email protected];[email protected]
v. et Subiect:RE:ShellyLandry-Bell Various, al David, call meat415- I withour changes please version in and manifested betowis a revised , Hereattached ftf format flexible and stillhave f We andfinalize. are somewhat to around10 am PSTon Wednesday discuss ZOO-1Ztg I' let issues. Please us and unavailablliry, rssues, discovery stay especially military the to thornyissues discuss Thanks, knowif you haveany questions. lra P, Rothken Rothken Law Firm [email protected] www.,techfirm.com 415-9244250
COURT DISTRICT I]NITED STATES OF DISTRICT LOUISIANA IN AND FORTHEWESTERN Division ShrevePort
SHELLY LANDRY-BELL, Plaintiff, Versus Civil Action No. cv05-1526-s VARIOUS INC., ET AL, Defendants. JUDGESTAGC JIJBY.DEMANDED
MANAGEMENTREPORT RULE 26[F]CASE
A meetingofcounsel,David Savak, for plaintiff, and Ben Politz, was held on June7, 2006,by telephone.
]. NATURE OF PLAINTIFF''SCLAIMS
plaintiffcontcndsthat a formcr boyfricndWilhclm dcfamcdhcr and invadcdhcr privacy by postingshc placcdon as rhat Various is responsible the publisherofsuch Wilhelm postings. Various' datingsite. Plaintiff contends defendant claimshave beenmade. Damage 2. BENCH OR JURY TRIAL A jury trial hasbeenrequested. 3. INITIAL DISCLOSURES
FF RULE 26(f) Memo - Exhibit 000003
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is th€ to yet initialdisclosures but aie ordered do so by July 2liI, 2006unless case The parties havenot exchanged and Wilhelm'sov€rseas militarydutyandunavailability thenotionthathe is is entered givendefendant dismissed stay or the Notlvithstanding abovethe Various Incorporated/FriendFiDder likely an indispensable neiessaryparty to this case, or havedonea diligent searih and havealreadyproducedto plaintiffs counselany and all iftemal documenls defendants were with (aftercommunications plaintiffs counsel) withjntheirpossession, cusiody, controlit wasab!eto discem or related plaintjff to allegedly 4. JURISDICTION
jurisdiction, choiceof reserve lheir rights relatedto personal Defendants The Variouslncorporated.i FriendFinder exists. law, arbitrability,andchoiceofforum in this case. Diversity ofcitizenship subjectmatterjurisdictionapparently 5. JOINDER OF PARTIES AND AMENDMENT OF PLEADINCS Plaintiffseeks ninety [90] her parfyto the lawsuitandwillamend pleadings. Plaintiffmay addan additional that to dayspastthe conference maketheseadditionsor changes.Funher,plaintiff showsthat shehaslearned and on Zach Wilhelm is stationed, activemilitary duty, overseas canootbe servedwith summonsand complajnt while on the military baseor in areasofoperatioDs,Further,the SSRA applies. Plaintiffhas madenulnerous contenc home. Wilhelm'sparents service his parents' at domiciliary including attempts haveWiLhelm to served, The by Wilhelm before leavinglo go overseas. used thar ii is not his domicileyet that is the laststableaddress and defendants of the view that the issueof necessary indispensable are Various lncomorated/FriendFinder (pursuant the SSRA to djsmissed stayed or andlikelythe case parties in needs be examined lightofthe aboye to suasponteupon learnjngofa defendant's and its progenywhich providesthat the Court may staythe case and as giventhatdefendant Wilhelmwas alleged the onewho posted coverage underthe SSRA).lndeed on published allegeddefamatory statemertandthusthe allegedtortfeasorit aPpears its face that unfair the in prejudice would likelyresultifthis caseis adjudicated his absence.
B.
may seekto add any otherperson[s]who were involved in the defendants Plaintiffand the Various/FriendFinder who needto in this iawsuit. Theremay be additionalthird persons giving riseto the damages claimed incidents cannotmakethat defendants be addedir indemnityclaims br;ught but plaintiffand the Various/FriendFioder takingWilhelm'sdeposition. invoLves preliminary which necessariiy discovery determination absentiome Ninety 190ldaysafter the confereoce. DISCOVERY ISSUES for and datawill be necessary plaintiffto computerfunctionsand systems Plaintiffbelievesthat proprietary and believe stronglydisagree defendants discoverto prepare case- the Various [ncorporated/FriendFinder her gjventhe notionthalthe CDA go on an expensive fishingexpedition to not thatplaintifishould be al)owed providedby othersaodthat providesjmmunity to Internetierviceprovidersfor contentor statcments defense posting(s)and are not treatedasthe did Variousincorporated/Frie;dFinder not createthe allegeddefamatory beyondthoseaheadyprovidedby_ . . pubtisher suchunderthe CDA. Thereforeit is unlikely that documents of evidence bejustified in or to calculated leadto the discoveryof admissible Variousto plaintiffwill be reasonably discovery natureofsuch requests.Plaintjff antjcipates light ofthe burdensinvolved andthe inconsequential mechanisms.Various believesthat its and computer systemand database search disputes regardingVarious' given the obvious are mechanisms jnconsequential specificintimal iomputer systemand ditabaseandsearch family of sitesand the stateof eitemal functionalityand intemetserviceprol,jdernatureofthe FriendFinder.com oI the caselaw regardingthe cDA immunily in which no repofiedcasehasever needed reponedthe gnmular may be raisedregarding PriYacyissues ofthe irltemetserviceprovider'stechno]ogy. detailsofthe ii.ner w-orkings concemingplaintiff. Plainti'l believesthaataking the depositionof identitiesofpersonsviewing the information defendants b€lieve that The Various/FriendFinder from assista=nce the courtandthe military. Wilhelmwil] require to and enteredinto out of cautionin light of plaintifls a two tieredconfidentialityorderneeds be negoliated believethat defendants The statements abovebeforewritten discoveryis requested. Various/FriendFinder e-discovery fishing to if needto be explored plaintiffdecides go on an expensive discovery shiftingissues cost Wilhelm's in ofstay or dismissal lightofdefendant that VariousbeLieves the issue expedition. anyevent, In discovery commences. before be should decided mititaryunavailabiliry
c.
6.
B.
a The partiespropose period ofat teast180daysfor completionof discoverywith that periodrunningfrom the
FF RULE 26(f) Memo - Exhibit 000004
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suggest JuneI0,2007 unless Therefore, parties the andjoinder ofpanieshaspassed. dare thatamendment ofpleadings the caseis stayed. 7. AMOTION PRACTICE Various'smotion to dismisswas denied. Plaintiffs motion to strike Thereare no pendingmotions. Defendant Various' Answerand Statement ofDefenseswas deniedIftlte caseis not stayedor filing dispositivemotionsunlessthe casesettles. Both partiesof recordanticipate dismisieddueto Wilhelm's unavailability(which may be broughtvia a fonnal motion if the Court doesnot grant will suchstaysuasponte)Various/FriendFinder likely file a motion for summaryjudgment within 90 days. ALTERNATIVE DISPUTE RESOLUTION
B.
8,
by settlement conference Magistrate-hdgein to The partiesare amenable ADR. Plaintiff respectfullyrequests to are defendants amenable privatemedjationat JAMS beforea lieu ofa private mediator. The Various/FriendFinder upon by alltbe the retiredJudgewith the costsdivided evenlybetween paftiesand in a convenientlocationto be agreed partieswith all the partiesandtheir counselpresent. 9. TRIAL BY MAGISTRATE at to All partiesdo not consent trial by Magistrate-Judge this tjrne.
FF RULE 26(f) Memo - Exhibit 000005
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lra P. Rothken
From: [email protected] June Sent: Wednesday, 21,20067:41AM com blp@blpld [email protected]; i@@techfirm.com; [email protected]; fra P, Rothken; jared@techf,rm,com; [email protected] v. Landry-BellVarious, al et Subject:Re:Shelly To: Gc: gn120Q6214223 Central ira@techfirm, writes: net AM Daylight Time, dated ln a message withour changes pleasecall version belowis a revised in Hereattached rtf formatand manifested We and to around am PSTon Wednesday discuss flnalize. aresomewhat 10 me at 415-260-1718 and unavailability, issues, stay especially military the thorny issues discuss to and flexible stillhave questions. youhave Thanks, let any issues. Please us knowif discovery it to you report over-lawyered death. and a ustas I suspected, havetaken verysimple so evencopyand format I cannot Further, is notin a compatible it written. agree whatyouhave on I cannot you waited until you in woulilbe yourstatements seekto include the report.Further, have textwhich append jn, Onceaga Jwouldaskthatyoupermit so the 11thhourto sendyouredits as to makeit evenmoreditdcult. yourlocal this so counsel handle matter we cangetit filedtimely. to DavidA. SzwaK Jones Szwak & Bodenheimer, Street, Floor 7th 509 Market BankBuilding Mercantile United 71 Louisiana 101 Shreveport, 318-221-6444 Fax221€555 www.bjslaw.com ** www.MyFaircredit.com Forum out " Check the Dispute www. maxedoutmovie.com/indexl.html ** CheckOut"l\4axed by Out,"the movie/documentary Trueworks FilmFestival at March11,2006, theSouthBy Southwest Premieres at out Check theclips thesite;I am in the movie!
FF RULE 26(f) Memo - Exhibit 000006
Case 5:05-cv-01526-TS-MLH lra P. Rothken
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From: lra P, Rothken [email protected]] June 8:36 AM Sent: Wednesday, 21,2006 blp@blpld,c0m [email protected] [email protected]; BJKS1507@aol,com; ira@techfirm,com; To: [email protected] [email protected] [email protected] cc: et RE:Shelly Landry-BellVarious, al v. Subiect:
David,
We providedthe text to you in both the bodyof the e-mail(whereyou can cut and paste)as well as in rtf format. andwe are and tf you thlnkwe haveoverlawyeredjusttell me wherewe disagree do this in a normalmanner it inapplicable. we if to happyto makechanges the shortdocument uponreflection wrotesomething all with my lawfirmon the majorissuesin thiscaseincluding substantive It is important you dealdirectly that a any in as meetand confers we arethe leadcounsel the caseandwe will be handling trial- we haveretained and pretend thatyou or for but veryablelocalcounsel thatis notan invitation you to jgnore bypassleadcounsel to issues as you did not.lf we are unable agree on meetand confer the casemanagement hada substantive with us in a to the to on a jointsubmission the Courtwe will advise courtof yourfailure meetand confer below. in thosein the lastparagraph manner important on issues thiscaseincluding substantive are to as we Again, are not so arrogant to saythatour revisions the jointdocument a workof art but giventhe way we were forcedto reviseit so teh notionthat you have refusedto meet and conferwith us in any substantive issuesuntilwe heardbackfromyou on the points casemanagement Courtcouldhearbothsideson important position see wherewe agreeand disagree. and yourclient's to we raised I t by eachof the issues phoneat 10 am PSTtimetodayor if you do not catl You snoutO me andwe can go through positions" e-mailit positions" "Friendfinder's and and with"plaintiffs wantto talkvou c€n markup eachsection whatever theymay be. represented viewsare accurately makesureeachof our backto us ahdwe "un if let tn any eventplease us knowtodayyourviewson why thiscaseshouldnot be stayedor dismissed Mr. persons fromcivil suchmilltary giventhe statute thatprotects and unavailible overseas Wilhelm in the military is Alsokindly defamor. party an and litjgation giventhathe is likely indispendable to a casewherehe is the alleged as statute we you will adirise on whatdiscovery thinkyourclient needand why in lightof the CDA immunity us the the your to futtyunderstand writing in othercaseswe havehad involving CDAthat survived are unable senseto decidein good to pleading haveordered parties meetand conferin a pragmatic the stagetheiudge(s) (by the the and "matters" is proportional can change outcome removing and iaithwh;t nairowdiscovery kindly adviseus on who yourclientmay add to the Further, expedition. and immunity) did notallowa fishing orderandif you can provide to caseand why.Alsoadviseif yourclientis amenable a two tieredconfidentiality at and edit.Please advise on the aboveand let us knowlf you will be calling 10 us our review an exemplarior Thanks. am PSTtodayso we can be available, lra P. Rothken RothkenLaw Firm [email protected] www,tPchfirm.gorl
[email protected] [email protected]] [mailto: 7:40 Al4 Sent: Wed6/2t12006 [email protected] [email protected]; [email protected]; [email protected]; To: Ira P.Rothken; [email protected]; rm.com hal@techfi Cc: et Landry-Bell v. Varlous, al subject: Re:Shelly
FF RULE 26(f) Memo - Exhibit 000007
Case 5:05-cv-01526-TS-MLH lra P. Rothken
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From: lraP. Rothken [email protected]] Sent: Wednesday, 21,200612:05 June PM To: BJKS1507@aol,com;ira@techfirm,com;[email protected]@blpld.com Cc: hal@techiirm,com [email protected]; RE: Landry-BellVarious, al Final Signature v. et Subiect: Shelly for David, get a Thiswould easier youwould on thephone us- we included we made jurydemand; the be if that with that discovery dateis impacted Oecnallldlfli?EB a stayithatplaintiff final believes ne6ds it certain miy discovery; other and tweaks make document accurate. to the more you position Canyoukindly answer questions so the I asked in an email morning we cangetyourclient's this -prior filing document before conference hishonor....here areagain to this they the with below please and procedural advise we have so some of cooperation ifwe disagree theresults theissues even on raised. please usknow "lnanyevent your let today views whythiscase on should be stayed dismissedMr. not or if given statute proteats military persons Wilhelm in themilitary unavailable is such from and overseas the that party civillitigation given he is likely lndispendable to a ca$e and where is thealleged he defamor. Also that an you yourclient need whyin ljght theCDAimmunity of kindly advise onwhatdiscovery think us and will your as we had slatute we areunable iullyunderstand wrlting in other cases have involving CDAthat the to survived pleading the stage judge(s) and in sense to the have ordered parties meet confer a pragmatic the to (by decide good in Faith what "matters" is proportional canchange outcome and the narrow discovery and removing immunity) didnotallow ishingexpedition. kindly advise onwhoyour us client may the a Further, and addtothecaseandwhy. order Alsoadvise your if client amenable a twotiered to confidentiality andif you is canprovide exemplar ourreview edit." an for and lra P. Rothken
From: [email protected] [email protected]] Imailto: Sent: Wednesday. June21, 200611:54AM To: Ira P. Rothken;[email protected]; [email protected]; [email protected] Cc: [email protected]; hal@techfirm,com Subject: Re: ShellyLandry-Bell Various/et al Finalfor Signature v. Whatchanges any weremadeto the lastversion if thatI sentyou? DavidA. Szwak Bodenheimer. Jones& Szwak 509 MarketStreet,7th Floor Mercantile BankBuilding United Shreveport, Louisiana 101 71 318-221-6444 Fax 221-6555 www,bjslaw.com * www.lvlyFairCredit.com ** Checkout the Disoute Forum www, maxedoutmovie.comiindexl.html *. CheckOut "Maxed Out,"the movie/documentaryTrueworks by
FF RULE 26(f) Memo - Exhibit 000008
Case 5:05-cv-01526-TS-MLH
Subj: Date: From: To:
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FF RULE 26(f) Memo - Exhibit 000009
Case 5:05-cv-01526-TS-MLH lra P. Rothken
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From: lraP. Rothken [ira@techflrm,net] 3:44PM Wednesday, 21,2006 June Sent: [email protected];[email protected];[email protected];blp@blpldcom To: [email protected]@techfirm.com cc: Enclosed v, Signature et REi Landry-BellVarious, al Fjnal Subject: Shelly
David,
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From: Ira P. Rothken[mailto:[email protected]] June21, 20063:31 PM Sent: Wednesday, blp!blPld.com [email protected]; [email protected]; To; [email protected]; rm.com hal@techfi Cc: [email protected]; Enclosed v. et Landry-Bell Various/ al FinalSignature Subject: RE:Shelly we thatand then i useda program havecalledNitro lo We agreed June21it and lwrote you an emailsaying pDF 6 takethe previously the within PDFto June21stand thatis how it came signedPDFandeditthe date version the PDF....you of to it out namely mabethe cliangein the PDFbut unbeknownst us not in the printed and complained I toldyou to writeit in on then and thenaskedfor clarittcation I toldyou June21st....you further themto us and disclosures you havenot provided .l the one I signed,.. thenaskedyou whereare yourinitial theyare due today. eventhough lra P. Rothken
[email protected]] From: [email protected] [mailto: June21, 20063:23 PN4 Sent: Wednesday, [email protected] [email protected]; To: Ira P. Rothken;[email protected]; rm.com hal@techfi Cc: [email protected]; Enclosed v. Subject: Re: ShellyLandry-Bell Various/et al FinalSignature writes: Daylight Tlme' [email protected] 5:18:36 Central Pl\4 dated6l?1l2Qo6 In a message David, wouldbe I to otherthanthe document signedas suchconduct You are notauthorized fileanything and version .justcrossout July21s!ln my signed to andwill be reported yourstatebar... unethical out are signit andflle it....you frankly of control. writeJune21stand lra P. Rothken .pdfflleyou sentwhichwouldnot printthe visible the Thankyou for youremail, I haveretained curious how and why you wouldemailme a .pdffileand showa th; date, I wouldlikefor you to explain of alterati6n yet deadline whenwe try to yourrepeated effodto altera court-imposed andtypeoverto correct markthrough "July"remark?Wereyou the printthe file-, ovbilaiO not printand retains improper textdoes "June" the
FF RULE 26(f) Memo - Exhibit 000010
Case 5:05-cv-01526-TS-MLH lra P, Rothken
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net] From: lraP. Rothken [ira@techflrm. 5:32 Sent: Wednesday, 21,2006 June PM BJKS'[email protected];ira@techfirm,com;[email protected];[email protected] To: [email protected];[email protected] Cc: v. Various, al FriendFindefs Disclosures Landry-Bell et Initial Subiect: Shelly
David,
Please e-mail faxus or attached a PDF, Various Incorporated's Initial Here, as are / FriendFinder's Disclosures. your any Thanks, client's let if initial disclosures it is only as fair.Please usknow youhave questions.
tra H. KolnKen Rothken Law Firm
wl4ary.techfirm.com ira@techf,rm,com 415-924425A
FF RULE 26(f) Memo - Exhibit 000011
Case 5:05-cv-01526-TS-MLH
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FF RULE 26(f) Memo - Exhibit 000012
Case 5:05-cv-01526-TS-MLH
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FF RULE 26(f) Memo - Exhibit 000013
Case 5:05-cv-01526-TS-MLH lra P. Rothken
From: Sent: To: Cc:
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lra P. Rothken [email protected] W e d n e s d a J u n e 2 1 , 2 0 0 6 : 1 1P [ 4 y, 3 [email protected];ira@techfirm,[email protected];[email protected] [email protected]; [email protected]
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From; [email protected] [email protected]] lmailto: June21, 20063:08 Plvl Sent: Wednesday, [email protected] [email protected]; [email protected]; To: Ira P. Rothken; [email protected]; Cc: hal@techfi rm.com Enclosed v. et Signature subject: Re:Shelly Landry-Bell Various, al Final provided the court by you me withthe document emailed in .pdf. The deadline explain whatoccurred Ptease to appeared havebeenmarked to overor typedover. lt appears showJuneand JulyoveMritten. DavidA. Szwak Jones& Szwak Bodenheimer, 509 MarketStreet.7th Floor BankBuilding United Mercantile Louisiana 101 71 Shreveport, 318-221-6444 Fax 221$555 y'/vw.bjsLq.W,.Aom ** www.MyFairCredit.com .* Checkout the Dispute Forum www, maxedoutmovie.com/indexl.html *- CheckOut "Maxed by documentary Trueworks Out,"the moviei FilmFestival Premieres March11,2006,at the SouthBy Southwest Checkout the clipsat the site:I am in the movie!
FF RULE 26(f) Memo - Exhibit 000014
Case 5:05-cv-01526-TS-MLH lra P. Rothken
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From: lra P. Rothken [email protected]] June 2:34PM Sent: Wednesday, 21,2000 [email protected]; [email protected] To: [email protected]; [email protected]; [email protected];[email protected] cc: RE: Landry-Bell for v. Various, al Final Signature et Subiect: Shelly
David,
- please to and back Where yourclient's is initial e-mail disclosures them metoday wewillemail disclosuresourlast in the of ours....thanks...that takecare theissue.., should of .please change date theinitial fof to tomorrow... . version theRule statement today signit andfaxit over myoffice flling of 26 and to lraP. Rothken
From:[email protected] [mailto:[email protected]] Sent: Wednesday, June2lt 20062:77PM [email protected] To: Ira P.Rothken; [email protected]; [email protected]; [email protected] Cc:[email protected]; for Subiect: Re:Shelly Landry-Bell Various, al Final Signature v. et writes: [email protected] ln a message dated 612112006 PM Daylight Time, 3:25:51 Central internal document responded yoursubpoena youhave theVarious all we to so Besides already your impacted notgetting client's by related plaintiff. aretheones to whowillbe more allegedly We disclosures away. right
from you. You need to complyor be preparedto have a motionfiled lra, We have not receivedany documents are responses notappreciated. with to in connection yourfailure do as ordered.Yourcavalier DavidA. Szwak Jones& Szwak Bodenheimer. 509 MarketStreet,7th Floor BankBuilding United Mercantile Louisiana 101 71 Shreveport, 318-221-6444 Fax221-6555 uA&w.bjslaw.com www.MyFaircredit.com "' Forum "* Checkout the Dispute www. maxedoutmovie.com/indexl,html ** CheckOut "lvlaxed by Out,"the movie/documentaryTrueworks FilmFest,val March1'1,2006,at the SouthBy Southwest Premieres Checkout the cliosat the site:I am in the moviel
FF RULE 26(f) Memo - Exhibit 000015
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION SHELLY LANDRY-BELL, Plaintiff, vs. VARIOUS, INC. and ZACH WILHELM, Defendants. Civil Action No. CV05-1526 S Judge Stagg Magistrate Judge Hornsby DEFENDANT VARIOUS, INC.’s MEMORANDUM REGARDING RULE 26F JOINT CASE MANAGEMENT REPORT [Fed.R.Civ.P. 26F]
DEFENDANT VARIOUS, INC.’S MEMORANDUM REGARDING RULE 26F JOINT CASE MANAGEMENT REPORT
Defendant Various, Inc. (hereinafter also referred to as “FriendFinder” or “FriendFinder.com”) hereby submits a response to plaintiff's Memorandum regarding the filing of the Rule 26 Joint Case Management Report. The FriendFinder defendants provide the following Memorandum and attached exhibits to explain why the filed “Joint” Case Management Report was not signed by both parties. Distilled to its essence plaintiff failed to properly meet and confer on Rule 26 issues and failed to properly print out and file FriendFinder's signed Rule 26 Statement even though they were entrusted to do it and were advised in writing on how to do it such that it manifested the June 21st date for initial disclosures. Plaintiff in their Memo failed to also point out that the parties did indeed exchange initial disclosures on June 21st 2006 so that point is moot. In addition, and perhaps most importantly, FriendFinder joins in the Case Management Report on file herein. This memorandum is designed to explain, from FriendFinder’s perspective what happened such that the Court can understand the dynamic between the parties and understand that FriendFinder thought that the fully signed “Joint” report would be filed in a timely fashion by plaintiff’s counsel.
1
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A.
Plaintiff's Failure to Properly and Efficiently Meet and Confer for the Rule 26 Statement On June 7th, 2006 FriendFinder’s counsel, Ira P. Rothken, faxed Plaintiff's counsel
a letter requesting a phone conference for 3 pm PST to meet and confer regarding the Rule 26 Statement (See Exhibit 000001). On June 8th, 2006, Plaintiff's counsel advised via a return fax that he had already “met and conferred” with FriendFinder's local counsel (See Exhibit 000001). Given that Plaintiff’s counsel failed to include FriendFinder’s lead counsel in the meet and confer process this set up the following chain of events.
1.
There was a delay in providing electronic documents between counsel to facilitate the meet and confer process and Joint filings.
On June 15th Plaintiff’s counsel provided to Ira P. Rothken, FriendFinder’s lead counsel, a draft Rule 26 Statement via fax and was reluctant to provide an electronic copy for FriendFinder’s counsel to edit and return thus delaying the “Joint” editing and filing process. Indeed, when FriendFinder’s counsel writes “Please email us the Word file so we can make edits with redlines....that is how we do it in every other Federal case – thanks…” Plaintiff’s counsel responds “Hey Ira that is a pain. How about just marking up the hard copy and faxing me edits?” (See Exhibit 000002).
2.
There was a failure to include each side’s lead counsel in the meet and confer process on important issues.
On June 21st FriendFinder’s counsel, after converting Plaintiff’s version to an editable format and providing a revised draft Rule 26 Statement in electronic format to Plaintiff’s counsel (See Exhibit 000003-000005) gets an e-mail from Plaintiff’s counsel indicating that he refused to agree to the revised version and that he cannot cut and paste it (See Exhibit 000006). FriendFinder’s counsel then writes to Plaintiff’s counsel the following e-mail (which was not attached to Plaintiff’s exhibits but attached herein as
2
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Exhibit 000007)) which sums up the problems the parties have had to date communicating on substantive issues in the case: We provided the text to you in both the body of the e-mail (where you can cut and paste) as well as in rtf format. If you think we have overlawyered it just tell me where we disagree and do this in a normal manner and we are happy to make changes to the short document if upon reflection we wrote something inapplicable. It is important that you deal directly with my law firm on the major issues in this case including all substantive meet and confers as we are the lead counsel in the case and we will be handling any trial - we have retained a very able local counsel but that is not an invitation for you to ignore or bypass lead counsel and pretend that you had a substantive meet and confer on the case management issues - as you did not. If we are unable to agree on a joint submission to the Court we will advise the court of your failure to meet and confer with us in a substantive manner on important issues in this case including those in the last paragraph below. Again, we are not so arrogant as to say that our revisions to the joint document are a work of art but given the notion that you have refused to meet and confer with us in any substantive way we were forced to revise it so the Court could hear both sides on important case management issues until we heard back from you on the points we raised and your client's position to see where we agree and disagree. You should call me and we can go through each of the issues by phone at 10 am PST time today or if you do not want to talk you can mark up each section with "plaintiff's positions" and "FriendFinder’s positions" and e-mail it back to us and we can make sure each of our views are accurately represented whatever they may be. In any event please let us know today your views on why this case should not be stayed or dismissed if Mr. Wilhelm is in the military and unavailable overseas given the statute that protects such military persons from civil litigation and given that he is likely an indispensable party to a case where he is the alleged defamer. Also kindly advise us on what discovery you think your client will need and why in
3
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light of the CDA immunity statute … in a pragmatic sense to decide in good faith what narrow discovery "matters" and is proportional and can change the outcome (by removing the immunity) and [does] not allow a fishing expedition. Further, kindly advise us on who your client may add to the case and why. Also advise if your client is amenable to a two tiered confidentiality order and if you can provide an exemplar for our review and edit. Please advise us on the above and let us know if you will be calling at 10 am PST today so we can be available. Thanks. The parties did not have any “real” meet and confer on the above issues. While plaintiff’s counsel did write a minimalist response to the above in an e-mail response later that day it is hard to discern where the parties agree and disagree and why and what the parties will jointly recommend to the Court if anything i.e. stay. Indeed, it is hard to plan a schedule for discovery and litigation when issues of stay, volume of discovery, who if anyone else may be joined, and the entry of a two tiered confidentiality order all up in the air and un-discussed. This insufficient meet and confer process stems from Plaintiff’s counsel using informal discussions with local counsel on more than one occasion as a method of avoiding substantive meet and confer with FriendFinder’s lead counsel. This sort of technique was used prior to plaintiff filing her motion to strike FriendFinder’s answer. (See Order of the Court filed on April 4, 2006 at pages 2-3.)
3.
There was a failure to cooperate to properly meet and confer by phone.
Plaintiff's counsel has avoided meet and confer by phone and has not responded to invitations to meet and confer by phone. For example, in the initial letter (Exhibit 000001) FriendFinder’s counsel requested a telephonic meet and confer, then again in an e-mail (Exhibit 000003) and then one more time in an email (Exhibit 000008) and plaintiff’s counsel never cooperated in setting a time for Plaintiff’s counsel and FriendFinder’s lead counsel to meet and confer via phone --- overt fax and e-mails requesting a date and time for such oral/telephonic meet and confers were not complied with.
4
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In addition, inconsistent with Plaintiff 's counsel’s statements to the Court, Plaintiff’s counsel never left a single voice message for FriendFinder’s lead counsel’s voice mail to meet and confer on the Rule 26 Statement – as on the dates plaintiff indicated in their memo FriendFinder’s counsel’s voice mail was temporarily unavailable – that was why FriendFinder’s counsel used e-mail to set such time and date for a phone conference to ensure the availability of counsel for the call(s).
B.
Plaintiff Failed to Properly File FriendFinder's Signed Rule 26 Statement 1. There was a failure by the parties to file a Joint document.
Plaintiff's counsel did not properly print out FriendFinder's Rule 26 Statement and failed to print it with “mark ups on”, after being advised of Plaintiff's mistake in an email Plaintiff's counsel failed to attach to his "Memo" exhibits Exhibit 000010-000013 herein, which explains the inaccurate date plaintiff’s counsel printed out for initial disclosures in the Rule 26 Statement signed by FriendFinder’s counsel. Indeed, in Exhibit 000010 FriendFinder’s counsel explains to Plaintiff’s counsel: David, I have now learned that you printed it incorrectly – when your Adobe Acrobat viewer opens and you hit print in the print window you need to select print document WITH markups and it will print the markup change I made to change the date to June 21st…..thanks, Ira P. Rothken Plaintiff’s counsel by not following the guidance in the e-mail shown above or providing such e-mail to the Court in its exhibits instead provided this court with a misleading statement of what occurred. In light of the fact that plaintiff’s counsel was unwilling to allow FriendFinder’s counsel to e-file the Joint Rule 26 Statement under some theory that he was closer to the Courthouse (See Exhibit 000009) Plaintiff’s counsel was then entrusted by
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FriendFinder’s counsel to file FriendFinder's signed Rule 26 Statement which he failed to do and instead filed their own (manufactured after the fact) Rule 26 Statement and subordinated FriendFinder's signed Rule 26 Statement (printed without “markups on” so thus showing a wrong date for initial disclosures) to an exhibit. See Exhibit 000012000013. The issue of initial disclosures is moot as FriendFinder provided their initial disclosures to plaintiff’s counsel on June 21st (See Exhibit 000011) and was agreed on in a number of e-mails including Exhibit (000014-000015). To bring this matter to a close FriendFinder has reviewed the revised Rule Statement filed by plaintiff herein and joins in such statement. Respectfully submitted, Dated: June 27, 2006 ________/s/_________________ Ira P. Rothken (T.A. - Pro Hac Vice, Cal. Bar 160029) ________/s/_________________ Bennett L. Politz (LSBA Bar No. 10573) Attorneys for Defendant Various, Inc. Local Counsel: Bennett L. Politz (LSBA Bar No. 10573) Booth Lockard Politz & LeSage LLC 920 Pierremont Road, Suite 103 P. O. Drawer 1092 Shreveport, LA 71163 (318) 222-2333 (318) 221-1035 (fax) email: [email protected]
Dated: June 27, 2006
Ira P. Rothken (T.A. - Pro Hac Vice, Cal. Bar 160029) ROTHKEN LAW FIRM LLP 3 Hamilton Landing, Suite 224 Novato, California 94949 Tel: (415) 924-4250 Fax: (415) 924-2905 Email: [email protected]
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CERTIFICATE OF SERVICE I hereby certify that on June 27, 2006, a copy of the foregoing DEFENDANT VARIOUS, INC.’s MEMORANDUM REGARDING RULE 26F JOINT CASE MANAGEMENT REPORT was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to Ira P. Rothken and Bennett L. Politz by operation of the court’s electronic filing system. I also certify that I have faxed and mailed by United States Postal Service, postage prepaid, this filing to the following non-CM/ECF participants: David A Szwak Bodenheimer Jones & Szwak 401 Market St Ste 240 Shreveport, LA 71101 Fax No. (318) 221-6555 Dated: June 27, 2006 ________/s/_________________ Ira P. Rothken (T.A. - Pro Hac Vice, Cal. Bar 160029) ROTHKEN LAW FIRM 1050 Northgate Drive, Suite 520 San Rafael, CA 94903 Tel: (415) 924-4250 Fax: (415) 924-2905 Email: [email protected]
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ROTNKEN L.AWFINM LLP
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11IA FACSIMILE
David A Szwak Bodenheimcr Jones & Szwak 509 Market St Ste 730 LA Shreveport, 71101 Tcl: 318-221-6444 Fax:318-221-5555 Rs SHELLY LANDRY-BELL vs. VARIOUS, INC. rind ZACTI WILHELM' Div', No CV05-1526S U.S. District Couri, W. Dist. of Louisiana,Shreveport Regardiag CaseManagemef,t Meet and Confcr
Dcar Mr. Szwak, Pursuantto the Court's order of May 4, 2006, a copy of which is attachtd for your reference,that the parties were to mcet and co4fel on this caseby today. ordinarily, thc from yow office ou this mattcr' plaintiff initiates such mc€t and confer. Since we have T!!:1td a:rfliggier on Thursday, June 8, 2006 at 3:00 P'rn Pacific Timewc suggestthat wi m€et Plcase contact us immediately to confrrm your availabiliry for such a call'
Very truly yours,
Irh ?. Rothker
Cc: Bennett Politz, local counsel
FF RULE 26(f) Memo - Exhibit 000001
Case 5:05-cv-01526-TS-MLH
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lra P. Rothken
From: [email protected] 12:49 PM June Sent: Thursday, 15,2006 com com; blpld@softdisk blp@blpld [email protected]; [email protected] lra P. Rothken; To: [email protected];[email protected] Cc: v. et Landry-BellVarious, al Subject:Re:Shelly writes: [email protected] Daylight Time, 12:26:33 Central PM dated 6/15/2006 In a message ar----, other is howwe do it in every withredlines....that ) 1 et"aseemailustheWordfilesowe canmakeedits -.thanks, case I I Feoeral
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just me up fa Heytra,Thatis a pain.Howabout marking the hardcopyandfaxing edits? A. David Szwak & Jones Szwak Bodenheimer, 7th Street, FIoor 509Market Mercantile Building Bank United 71 Louisiana 101 ShreveDort. -6444 318,221 Fax221-6555 www.bjslaw.com ** www.MyFaircredit.com Forum out "* Check the Dispute www. maxedoutmovie.conVindexl.html by Out,"the movie/documentary Trueworks "- CheckOut"Maxed Film at By 11, March 2006, theSouth Southwest Festival Premieres at out Check the clips thesite;I am in the movie!
FF RULE 26(f) Memo - Exhibit 000002
Case 5:05-cv-01526-TS-MLH lra P, Rothken
From: sent: To: Cc:
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lra P. Rothken [[email protected]] June21,200612i42AM Wednesday, blp@blpld com [email protected]; [email protected]; 1507@aol,comi [email protected]; BJKS [email protected];[email protected]
v. et Subiect:RE:ShellyLandry-Bell Various, al David, call meat415- I withour changes please version in and manifested betowis a revised , Hereattached ftf format flexible and stillhave f We andfinalize. are somewhat to around10 am PSTon Wednesday discuss ZOO-1Ztg I' let issues. Please us and unavailablliry, rssues, discovery stay especially military the to thornyissues discuss Thanks, knowif you haveany questions. lra P, Rothken Rothken Law Firm [email protected] www.,techfirm.com 415-9244250
COURT DISTRICT I]NITED STATES OF DISTRICT LOUISIANA IN AND FORTHEWESTERN Division ShrevePort
SHELLY LANDRY-BELL, Plaintiff, Versus Civil Action No. cv05-1526-s VARIOUS INC., ET AL, Defendants. JUDGESTAGC JIJBY.DEMANDED
MANAGEMENTREPORT RULE 26[F]CASE
A meetingofcounsel,David Savak, for plaintiff, and Ben Politz, was held on June7, 2006,by telephone.
]. NATURE OF PLAINTIFF''SCLAIMS
plaintiffcontcndsthat a formcr boyfricndWilhclm dcfamcdhcr and invadcdhcr privacy by postingshc placcdon as rhat Various is responsible the publisherofsuch Wilhelm postings. Various' datingsite. Plaintiff contends defendant claimshave beenmade. Damage 2. BENCH OR JURY TRIAL A jury trial hasbeenrequested. 3. INITIAL DISCLOSURES
FF RULE 26(f) Memo - Exhibit 000003
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is th€ to yet initialdisclosures but aie ordered do so by July 2liI, 2006unless case The parties havenot exchanged and Wilhelm'sov€rseas militarydutyandunavailability thenotionthathe is is entered givendefendant dismissed stay or the Notlvithstanding abovethe Various Incorporated/FriendFiDder likely an indispensable neiessaryparty to this case, or havedonea diligent searih and havealreadyproducedto plaintiffs counselany and all iftemal documenls defendants were with (aftercommunications plaintiffs counsel) withjntheirpossession, cusiody, controlit wasab!eto discem or related plaintjff to allegedly 4. JURISDICTION
jurisdiction, choiceof reserve lheir rights relatedto personal Defendants The Variouslncorporated.i FriendFinder exists. law, arbitrability,andchoiceofforum in this case. Diversity ofcitizenship subjectmatterjurisdictionapparently 5. JOINDER OF PARTIES AND AMENDMENT OF PLEADINCS Plaintiffseeks ninety [90] her parfyto the lawsuitandwillamend pleadings. Plaintiffmay addan additional that to dayspastthe conference maketheseadditionsor changes.Funher,plaintiff showsthat shehaslearned and on Zach Wilhelm is stationed, activemilitary duty, overseas canootbe servedwith summonsand complajnt while on the military baseor in areasofoperatioDs,Further,the SSRA applies. Plaintiffhas madenulnerous contenc home. Wilhelm'sparents service his parents' at domiciliary including attempts haveWiLhelm to served, The by Wilhelm before leavinglo go overseas. used thar ii is not his domicileyet that is the laststableaddress and defendants of the view that the issueof necessary indispensable are Various lncomorated/FriendFinder (pursuant the SSRA to djsmissed stayed or andlikelythe case parties in needs be examined lightofthe aboye to suasponteupon learnjngofa defendant's and its progenywhich providesthat the Court may staythe case and as giventhatdefendant Wilhelmwas alleged the onewho posted coverage underthe SSRA).lndeed on published allegeddefamatory statemertandthusthe allegedtortfeasorit aPpears its face that unfair the in prejudice would likelyresultifthis caseis adjudicated his absence.
B.
may seekto add any otherperson[s]who were involved in the defendants Plaintiffand the Various/FriendFinder who needto in this iawsuit. Theremay be additionalthird persons giving riseto the damages claimed incidents cannotmakethat defendants be addedir indemnityclaims br;ught but plaintiffand the Various/FriendFioder takingWilhelm'sdeposition. invoLves preliminary which necessariiy discovery determination absentiome Ninety 190ldaysafter the confereoce. DISCOVERY ISSUES for and datawill be necessary plaintiffto computerfunctionsand systems Plaintiffbelievesthat proprietary and believe stronglydisagree defendants discoverto prepare case- the Various [ncorporated/FriendFinder her gjventhe notionthalthe CDA go on an expensive fishingexpedition to not thatplaintifishould be al)owed providedby othersaodthat providesjmmunity to Internetierviceprovidersfor contentor statcments defense posting(s)and are not treatedasthe did Variousincorporated/Frie;dFinder not createthe allegeddefamatory beyondthoseaheadyprovidedby_ . . pubtisher suchunderthe CDA. Thereforeit is unlikely that documents of evidence bejustified in or to calculated leadto the discoveryof admissible Variousto plaintiffwill be reasonably discovery natureofsuch requests.Plaintjff antjcipates light ofthe burdensinvolved andthe inconsequential mechanisms.Various believesthat its and computer systemand database search disputes regardingVarious' given the obvious are mechanisms jnconsequential specificintimal iomputer systemand ditabaseandsearch family of sitesand the stateof eitemal functionalityand intemetserviceprol,jdernatureofthe FriendFinder.com oI the caselaw regardingthe cDA immunily in which no repofiedcasehasever needed reponedthe gnmular may be raisedregarding PriYacyissues ofthe irltemetserviceprovider'stechno]ogy. detailsofthe ii.ner w-orkings concemingplaintiff. Plainti'l believesthaataking the depositionof identitiesofpersonsviewing the information defendants b€lieve that The Various/FriendFinder from assista=nce the courtandthe military. Wilhelmwil] require to and enteredinto out of cautionin light of plaintifls a two tieredconfidentialityorderneeds be negoliated believethat defendants The statements abovebeforewritten discoveryis requested. Various/FriendFinder e-discovery fishing to if needto be explored plaintiffdecides go on an expensive discovery shiftingissues cost Wilhelm's in ofstay or dismissal lightofdefendant that VariousbeLieves the issue expedition. anyevent, In discovery commences. before be should decided mititaryunavailabiliry
c.
6.
B.
a The partiespropose period ofat teast180daysfor completionof discoverywith that periodrunningfrom the
FF RULE 26(f) Memo - Exhibit 000004
Case 5:05-cv-01526-TS-MLH
Document 39
Filed 06/27/2006
Page 12 of 22
suggest JuneI0,2007 unless Therefore, parties the andjoinder ofpanieshaspassed. dare thatamendment ofpleadings the caseis stayed. 7. AMOTION PRACTICE Various'smotion to dismisswas denied. Plaintiffs motion to strike Thereare no pendingmotions. Defendant Various' Answerand Statement ofDefenseswas deniedIftlte caseis not stayedor filing dispositivemotionsunlessthe casesettles. Both partiesof recordanticipate dismisieddueto Wilhelm's unavailability(which may be broughtvia a fonnal motion if the Court doesnot grant will suchstaysuasponte)Various/FriendFinder likely file a motion for summaryjudgment within 90 days. ALTERNATIVE DISPUTE RESOLUTION
B.
8,
by settlement conference Magistrate-hdgein to The partiesare amenable ADR. Plaintiff respectfullyrequests to are defendants amenable privatemedjationat JAMS beforea lieu ofa private mediator. The Various/FriendFinder upon by alltbe the retiredJudgewith the costsdivided evenlybetween paftiesand in a convenientlocationto be agreed partieswith all the partiesandtheir counselpresent. 9. TRIAL BY MAGISTRATE at to All partiesdo not consent trial by Magistrate-Judge this tjrne.
FF RULE 26(f) Memo - Exhibit 000005
Case 5:05-cv-01526-TS-MLH
Document 39
Filed 06/27/2006
Page 13 of 22
lra P. Rothken
From: [email protected] June Sent: Wednesday, 21,20067:41AM com blp@blpld [email protected]; i@@techfirm.com; [email protected]; fra P, Rothken; jared@techf,rm,com; [email protected] v. Landry-BellVarious, al et Subject:Re:Shelly To: Gc: gn120Q6214223 Central ira@techfirm, writes: net AM Daylight Time, dated ln a message withour changes pleasecall version belowis a revised in Hereattached rtf formatand manifested We and to around am PSTon Wednesday discuss flnalize. aresomewhat 10 me at 415-260-1718 and unavailability, issues, stay especially military the thorny issues discuss to and flexible stillhave questions. youhave Thanks, let any issues. Please us knowif discovery it to you report over-lawyered death. and a ustas I suspected, havetaken verysimple so evencopyand format I cannot Further, is notin a compatible it written. agree whatyouhave on I cannot you waited until you in woulilbe yourstatements seekto include the report.Further, have textwhich append jn, Onceaga Jwouldaskthatyoupermit so the 11thhourto sendyouredits as to makeit evenmoreditdcult. yourlocal this so counsel handle matter we cangetit filedtimely. to DavidA. SzwaK Jones Szwak & Bodenheimer, Street, Floor 7th 509 Market BankBuilding Mercantile United 71 Louisiana 101 Shreveport, 318-221-6444 Fax221€555 www.bjslaw.com ** www.MyFaircredit.com Forum out " Check the Dispute www. maxedoutmovie.com/indexl.html ** CheckOut"l\4axed by Out,"the movie/documentary Trueworks FilmFestival at March11,2006, theSouthBy Southwest Premieres at out Check theclips thesite;I am in the movie!
FF RULE 26(f) Memo - Exhibit 000006
Case 5:05-cv-01526-TS-MLH lra P. Rothken
Document 39
Filed 06/27/2006
Page 14 of 22
From: lra P, Rothken [email protected]] June 8:36 AM Sent: Wednesday, 21,2006 blp@blpld,c0m [email protected] [email protected]; BJKS1507@aol,com; ira@techfirm,com; To: [email protected] [email protected] [email protected] cc: et RE:Shelly Landry-BellVarious, al v. Subiect:
David,
We providedthe text to you in both the bodyof the e-mail(whereyou can cut and paste)as well as in rtf format. andwe are and tf you thlnkwe haveoverlawyeredjusttell me wherewe disagree do this in a normalmanner it inapplicable. we if to happyto makechanges the shortdocument uponreflection wrotesomething all with my lawfirmon the majorissuesin thiscaseincluding substantive It is important you dealdirectly that a any in as meetand confers we arethe leadcounsel the caseandwe will be handling trial- we haveretained and pretend thatyou or for but veryablelocalcounsel thatis notan invitation you to jgnore bypassleadcounsel to issues as you did not.lf we are unable agree on meetand confer the casemanagement hada substantive with us in a to the to on a jointsubmission the Courtwe will advise courtof yourfailure meetand confer below. in thosein the lastparagraph manner important on issues thiscaseincluding substantive are to as we Again, are not so arrogant to saythatour revisions the jointdocument a workof art but giventhe way we were forcedto reviseit so teh notionthat you have refusedto meet and conferwith us in any substantive issuesuntilwe heardbackfromyou on the points casemanagement Courtcouldhearbothsideson important position see wherewe agreeand disagree. and yourclient's to we raised I t by eachof the issues phoneat 10 am PSTtimetodayor if you do not catl You snoutO me andwe can go through positions" e-mailit positions" "Friendfinder's and and with"plaintiffs wantto talkvou c€n markup eachsection whatever theymay be. represented viewsare accurately makesureeachof our backto us ahdwe "un if let tn any eventplease us knowtodayyourviewson why thiscaseshouldnot be stayedor dismissed Mr. persons fromcivil suchmilltary giventhe statute thatprotects and unavailible overseas Wilhelm in the military is Alsokindly defamor. party an and litjgation giventhathe is likely indispendable to a casewherehe is the alleged as statute we you will adirise on whatdiscovery thinkyourclient needand why in lightof the CDA immunity us the the your to futtyunderstand writing in othercaseswe havehad involving CDAthat survived are unable senseto decidein good to pleading haveordered parties meetand conferin a pragmatic the stagetheiudge(s) (by the the and "matters" is proportional can change outcome removing and iaithwh;t nairowdiscovery kindly adviseus on who yourclientmay add to the Further, expedition. and immunity) did notallowa fishing orderandif you can provide to caseand why.Alsoadviseif yourclientis amenable a two tieredconfidentiality at and edit.Please advise on the aboveand let us knowlf you will be calling 10 us our review an exemplarior Thanks. am PSTtodayso we can be available, lra P. Rothken RothkenLaw Firm [email protected] www,tPchfirm.gorl
[email protected] [email protected]] [mailto: 7:40 Al4 Sent: Wed6/2t12006 [email protected] [email protected]; [email protected]; [email protected]; To: Ira P.Rothken; [email protected]; rm.com hal@techfi Cc: et Landry-Bell v. Varlous, al subject: Re:Shelly
FF RULE 26(f) Memo - Exhibit 000007
Case 5:05-cv-01526-TS-MLH lra P. Rothken
Document 39
Filed 06/27/2006
Page 15 of 22
From: lraP. Rothken [email protected]] Sent: Wednesday, 21,200612:05 June PM To: BJKS1507@aol,com;ira@techfirm,com;[email protected]@blpld.com Cc: hal@techiirm,com [email protected]; RE: Landry-BellVarious, al Final Signature v. et Subiect: Shelly for David, get a Thiswould easier youwould on thephone us- we included we made jurydemand; the be if that with that discovery dateis impacted Oecnallldlfli?EB a stayithatplaintiff final believes ne6ds it certain miy discovery; other and tweaks make document accurate. to the more you position Canyoukindly answer questions so the I asked in an email morning we cangetyourclient's this -prior filing document before conference hishonor....here areagain to this they the with below please and procedural advise we have so some of cooperation ifwe disagree theresults theissues even on raised. please usknow "lnanyevent your let today views whythiscase on should be stayed dismissedMr. not or if given statute proteats military persons Wilhelm in themilitary unavailable is such from and overseas the that party civillitigation given he is likely lndispendable to a ca$e and where is thealleged he defamor. Also that an you yourclient need whyin ljght theCDAimmunity of kindly advise onwhatdiscovery think us and will your as we had slatute we areunable iullyunderstand wrlting in other cases have involving CDAthat the to survived pleading the stage judge(s) and in sense to the have ordered parties meet confer a pragmatic the to (by decide good in Faith what "matters" is proportional canchange outcome and the narrow discovery and removing immunity) didnotallow ishingexpedition. kindly advise onwhoyour us client may the a Further, and addtothecaseandwhy. order Alsoadvise your if client amenable a twotiered to confidentiality andif you is canprovide exemplar ourreview edit." an for and lra P. Rothken
From: [email protected] [email protected]] Imailto: Sent: Wednesday. June21, 200611:54AM To: Ira P. Rothken;[email protected]; [email protected]; [email protected] Cc: [email protected]; hal@techfirm,com Subject: Re: ShellyLandry-Bell Various/et al Finalfor Signature v. Whatchanges any weremadeto the lastversion if thatI sentyou? DavidA. Szwak Bodenheimer. Jones& Szwak 509 MarketStreet,7th Floor Mercantile BankBuilding United Shreveport, Louisiana 101 71 318-221-6444 Fax 221-6555 www,bjslaw.com * www.lvlyFairCredit.com ** Checkout the Disoute Forum www, maxedoutmovie.comiindexl.html *. CheckOut "Maxed Out,"the movie/documentaryTrueworks by
FF RULE 26(f) Memo - Exhibit 000008
Case 5:05-cv-01526-TS-MLH
Subj: Date: From: To:
Document 39
Filed 06/27/2006
Page 16 of 22
v, Re:ShellyLandry-Bell Varlous,et al Finalfor Signature DaylightTime 4:36:07 Central PM 6n112A06 BJKS.1507 com blp@blpld [email protected], i€(atechfm.net, [email protected], rm.com. [email protected] iared@techf
writes: Daylight Time,[email protected] 4:34:01 Central PM dated 6t21nOOd fn a message to initial e-mall {hem metodayandwe willemajlback dlsclosuresplease Whereis yourclien?s disclosures the change dateof theinitial of should care theissue....please ours....th;nks...that take for to of in ourlastversion the Rule26 statement todayandsignjt andfax it overto rnyofflce filing tomonow..,. 'l no That by tomorrow? makes in to here Shreveport mv to /Whv roulOI send siqnature Califomia befiled p.m. outbox 5:00 in afrer the signature I willbefi.ing document thecoun's as Please send-mefaxed a \ sen-r". \ copy as yoursigniture willbefiled withan explanationto whyanda complete ot tne it toO"y.lf youlailto send J / emails. f
DavidA. Szwak Jones& Szwak Bodenheimer, 509 MarketStrcet,7th Floor Mercantile BankBuilding United 711 Shreveport, Louisiana 01 318-2214444 F2D<221$555 www.bislaw.com *" www.MyFairCredii.com - Checkout the DisputeForum html www.maxedoutmovie.corn/indext, * CheckOut "MaxedOut,"lhe movie/documentary Trueworks by Film Festival Premieres March 11, 2006, d tfle Soulh By Southwest Checkout the clipsat the site; I am in the movie!
-7"
June21,2006 AmericaOr ine: BJKS1507 Wednesday,
FF RULE 26(f) Memo - Exhibit 000009
Case 5:05-cv-01526-TS-MLH lra P. Rothken
Document 39
Filed 06/27/2006
Page 17 of 22
From: lraP. Rothken [ira@techflrm,net] 3:44PM Wednesday, 21,2006 June Sent: [email protected];[email protected];[email protected];blp@blpldcom To: [email protected]@techfirm.com cc: Enclosed v, Signature et REi Landry-BellVarious, al Fjnal Subject: Shelly
David,
- when in and opens youhitprint your Acrobat viewer Adobe it nowlearned youprinted incorrectly that I have changemade I print and the youneed select markups it willprint markup WITH to document window theprint 21sI.-..,lhanks, to the to change date June lraP. Rothken
From: Ira P. Rothken[mailto:[email protected]] June21, 20063:31 PM Sent: Wednesday, blp!blPld.com [email protected]; [email protected]; To; [email protected]; rm.com hal@techfi Cc: [email protected]; Enclosed v. et Landry-Bell Various/ al FinalSignature Subject: RE:Shelly we thatand then i useda program havecalledNitro lo We agreed June21it and lwrote you an emailsaying pDF 6 takethe previously the within PDFto June21stand thatis how it came signedPDFandeditthe date version the PDF....you of to it out namely mabethe cliangein the PDFbut unbeknownst us not in the printed and complained I toldyou to writeit in on then and thenaskedfor clarittcation I toldyou June21st....you further themto us and disclosures you havenot provided .l the one I signed,.. thenaskedyou whereare yourinitial theyare due today. eventhough lra P. Rothken
[email protected]] From: [email protected] [mailto: June21, 20063:23 PN4 Sent: Wednesday, [email protected] [email protected]; To: Ira P. Rothken;[email protected]; rm.com hal@techfi Cc: [email protected]; Enclosed v. Subject: Re: ShellyLandry-Bell Various/et al FinalSignature writes: Daylight Tlme' [email protected] 5:18:36 Central Pl\4 dated6l?1l2Qo6 In a message David, wouldbe I to otherthanthe document signedas suchconduct You are notauthorized fileanything and version .justcrossout July21s!ln my signed to andwill be reported yourstatebar... unethical out are signit andflle it....you frankly of control. writeJune21stand lra P. Rothken .pdfflleyou sentwhichwouldnot printthe visible the Thankyou for youremail, I haveretained curious how and why you wouldemailme a .pdffileand showa th; date, I wouldlikefor you to explain of alterati6n yet deadline whenwe try to yourrepeated effodto altera court-imposed andtypeoverto correct markthrough "July"remark?Wereyou the printthe file-, ovbilaiO not printand retains improper textdoes "June" the
FF RULE 26(f) Memo - Exhibit 000010
Case 5:05-cv-01526-TS-MLH lra P, Rothken
Document 39
Filed 06/27/2006
Page 18 of 22
net] From: lraP. Rothken [ira@techflrm. 5:32 Sent: Wednesday, 21,2006 June PM BJKS'[email protected];ira@techfirm,com;[email protected];[email protected] To: [email protected];[email protected] Cc: v. Various, al FriendFindefs Disclosures Landry-Bell et Initial Subiect: Shelly
David,
Please e-mail faxus or attached a PDF, Various Incorporated's Initial Here, as are / FriendFinder's Disclosures. your any Thanks, client's let if initial disclosures it is only as fair.Please usknow youhave questions.
tra H. KolnKen Rothken Law Firm
wl4ary.techfirm.com ira@techf,rm,com 415-924425A
FF RULE 26(f) Memo - Exhibit 000011
Case 5:05-cv-01526-TS-MLH
Document 39
Filed 06/27/2006
Page 19 of 22
Prinler Nime. Status; Feady Type: HP Eolor LeserJet3F0ll Print Bange
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FF RULE 26(f) Memo - Exhibit 000012
Case 5:05-cv-01526-TS-MLH
Document 39
Filed 06/27/2006
Page 20 of 22
FF RULE 26(f) Memo - Exhibit 000013
Case 5:05-cv-01526-TS-MLH lra P. Rothken
From: Sent: To: Cc:
Document 39
Filed 06/27/2006
Page 21 of 22
lra P. Rothken [email protected] W e d n e s d a J u n e 2 1 , 2 0 0 6 : 1 1P [ 4 y, 3 [email protected];ira@techfirm,[email protected];[email protected] [email protected]; [email protected]
Enclosed v. et Subject:RE:ShellyLandry-Bell Various, al FinalSignature you l overwrote to say June21st.....like wanted. it
From; [email protected] [email protected]] lmailto: June21, 20063:08 Plvl Sent: Wednesday, [email protected] [email protected]; [email protected]; To: Ira P. Rothken; [email protected]; Cc: hal@techfi rm.com Enclosed v. et Signature subject: Re:Shelly Landry-Bell Various, al Final provided the court by you me withthe document emailed in .pdf. The deadline explain whatoccurred Ptease to appeared havebeenmarked to overor typedover. lt appears showJuneand JulyoveMritten. DavidA. Szwak Jones& Szwak Bodenheimer, 509 MarketStreet.7th Floor BankBuilding United Mercantile Louisiana 101 71 Shreveport, 318-221-6444 Fax 221$555 y'/vw.bjsLq.W,.Aom ** www.MyFairCredit.com .* Checkout the Dispute Forum www, maxedoutmovie.com/indexl.html *- CheckOut "Maxed by documentary Trueworks Out,"the moviei FilmFestival Premieres March11,2006,at the SouthBy Southwest Checkout the clipsat the site:I am in the movie!
FF RULE 26(f) Memo - Exhibit 000014
Case 5:05-cv-01526-TS-MLH lra P. Rothken
Document 39
Filed 06/27/2006
Page 22 of 22
From: lra P. Rothken [email protected]] June 2:34PM Sent: Wednesday, 21,2000 [email protected]; [email protected] To: [email protected]; [email protected]; [email protected];[email protected] cc: RE: Landry-Bell for v. Various, al Final Signature et Subiect: Shelly
David,
- please to and back Where yourclient's is initial e-mail disclosures them metoday wewillemail disclosuresourlast in the of ours....thanks...that takecare theissue.., should of .please change date theinitial fof to tomorrow... . version theRule statement today signit andfaxit over myoffice flling of 26 and to lraP. Rothken
From:[email protected] [mailto:[email protected]] Sent: Wednesday, June2lt 20062:77PM [email protected] To: Ira P.Rothken; [email protected]; [email protected]; [email protected] Cc:[email protected]; for Subiect: Re:Shelly Landry-Bell Various, al Final Signature v. et writes: [email protected] ln a message dated 612112006 PM Daylight Time, 3:25:51 Central internal document responded yoursubpoena youhave theVarious all we to so Besides already your impacted notgetting client's by related plaintiff. aretheones to whowillbe more allegedly We disclosures away. right
from you. You need to complyor be preparedto have a motionfiled lra, We have not receivedany documents are responses notappreciated. with to in connection yourfailure do as ordered.Yourcavalier DavidA. Szwak Jones& Szwak Bodenheimer. 509 MarketStreet,7th Floor BankBuilding United Mercantile Louisiana 101 71 Shreveport, 318-221-6444 Fax221-6555 uA&w.bjslaw.com www.MyFaircredit.com "' Forum "* Checkout the Dispute www. maxedoutmovie.com/indexl,html ** CheckOut "lvlaxed by Out,"the movie/documentaryTrueworks FilmFest,val March1'1,2006,at the SouthBy Southwest Premieres Checkout the cliosat the site:I am in the moviel
FF RULE 26(f) Memo - Exhibit 000015
