Opinion
CASE NO. CV 10 03908 CRB (EDL)
11-30-2011
ROBERT BADELLA, individually and on behalf of all persons similarly situated; BRADLEY AUG, individually and on behalf of all persons similarly situated; LOUIS FEBUS, individually and on behalf of all persons similarly situated; ROBERT LANGFORD, individually and on behalf of all personssimilarlysituated; MICHAEL SHANE YORK, individually and on behalf of all persons similarly situated; ROBERT W. JEFFRIES, individually and on behalf of all persons similarly situated, Plaintiffs, v. DENIRO MARKETING, LLC, a California limited liability company; ALAN HENNING, an individual; MODENA MARKETING INC., an Antigua a nd Barbuda corporation; THOMAS JONES, an individual; PIRANHA NEW MEDIA LTD., a United Kingdom corporation; DELTABREEZE HOLDINGS LTD., a Cyprus corporation; PEN HELP LTD., a United Kingdom corporation; and DOES 1-100, Defendants.
LEWIS BRISBOIS BISGAARD & SMITH LLP RALPH A. ZAPPALA, SB# 102052 PAMELA M. FERGUSON, SB# 202587 THE KAUFMAN LAW GROUP Gary Jay Kaufman SB# 92759 Colin Hardacre SB# 250915 Attorneys for Defendants ALLAN HENNING, DENIRO MARKETING LLC; MODENA MARKETING, INC.; DELTABREEZE HOLDINGS, LTD. GARBARINI LAW GROUP PC Daniel L. Balsam 2912 Diamond Street, #218 San Francisco, California 94131 GARBARINI LAW GROUP PC Richard M. Garbarini (pro hac vice) Thomas J. FitzGerald (pro hac vice) Attorneys for Plaintiffs
LEWIS BRISBOIS BISGAARD & SMITH LLP
RALPH A. ZAPPALA, SB# 102052
PAMELA M. FERGUSON, SB# 202587
THE KAUFMAN LAW GROUP
Gary Jay Kaufman SB# 92759
Colin Hardacre SB# 250915
Attorneys for Defendants
ALLAN HENNING, DENIRO MARKETING LLC;
MODENA MARKETING, INC.; DELTABREEZE
HOLDINGS, LTD.
GARBARINI LAW GROUP PC
Daniel L. Balsam
2912 Diamond Street, #218
San Francisco, California 94131
GARBARINI LAW GROUP PC
Richard M. Garbarini (pro hac vice)
Thomas J. FitzGerald (pro hac vice)
Attorneys for Plaintiffs
STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY
Trial Date: None Set
Pursuant to the Court's Orders arising out of plaintiffs' motions to compel (document numbers 92, 93, 94 and 95) and the hearing before the Court on said motions on November 15, 2011, plaintiffs ROBERT BADELLA, ROBERT LANGFORD, MICHAEL SHANE YORK and ROBERT W. JEFFRIES ("Plaintiffs), represented by Richard M. Garbarini, Thomas J. FitzGerald and Daniel L. Balsam, Garbarini Law Group PC and defendants ALLAN HENNING, DENIRO MARKETING LLC; MODENA MARKETING, INC.; and DELTABREEZE HOLDINGS, LTD. ("Defendants"), represented by Ralph A. Zappala, Lewis Brisbois Bisgaard & Smith LLP and Gary Jay Kaufman, The Kaufman Law Group, submit the following stipulation:
1. The time limit for discovery is from July 2007 to the present ("time limitations").
2. The discovery is to concern the subject matters of dating and pornography.
3. The Defendants are to produce documents and respond to an interrogatory, as more specifically set forth below, on or before Tuesday, November 22, 2011. If the discovery is not made available to Plaintiffs at that time,
Defendants are to provide to Plaintiffs explanations in the form of declarations explaining the circumstances giving rise to any further delay. The parties further agree that for the individual requests for documents and the interrogatory set forth below, the named Defendants will provide their responses singularly rather than separately.
4. Pursuant to the Court's ruling at the hearing on Plaintiffs' motions to compel, the discovery in this matter is to proceed with respect to the individually named Plaintiffs and Plaintiffs at this point are not entitled to discovery based on a class action.
5. The following discovery requests have been modified and agreed upon in accordance with the Court's ruling on the motions to compel:
Request No. 1
Plaintiffs request that all documents and electronically stored information concerning the corporate formation or corporate governance of DENIRO, including without limitation certificates of incorporation, memoranda of association, articles of association, articles of organization, by-laws, board meeting minutes, operating agreements, annual reports, and annual returns.
Modification:
Defendants will produce the articles of incorporations and by-laws, if any, in the possession of any of the named defendants and concerning any of the named defendants, subject to agreed upon time of limitations.
Request No. 2
Documents sufficient to identify all persons who are or have been officers, directors, shareholders, and/or members of DENIRO during the Relevant Times, and the job titles and responsibilities for each such person.
Modification:
Defendants will produce documents identifying all persons who are officers, including documents concerning their job titles as officers for any of the named defendants that are in the possession or under the control of the named defendants, subject to the time limitations.
Request No. 9
Documents sufficient to identify all websites used to advertise, market, operate, and/or carry out any adult internet services.
Modification:
Defendants will provide a list of all of the defendants' websites concerning pornography and dating, subject to the time limitations.
Request No. 21
All documents and electronically stored information concerning advertising and marketing of adult internet services, including: market profiles, marketing strategies, and market analyses, including but not limited to the affiliate programs.
Modification:
Defendants will produce in response to this request documentation regarding the defendants' marketing and advertising of pornography and dating services, subject to the time limitations.
Request No. 26
All documents and electronically stored information concerning the creation and use of policy(ies) regarding verified members and the verification process for users of an adult internet service.
Modification:
Defendants will produce this information subject to the time limitations and this request may overlap Request No. 21.
Request No. 27
All documents and electronically stored information relating to any claims that a person who joins an additional adult internet service will "double" his/her opportunity to actually meet someone.
Modification:
Defendants will respond to this request subject to the time limitations.
Request No. 28
All documents and electronically stored information concerning any electronic mail campaign for the promotion, advertising, or marketing of an adult internet service.
Modification:
This request will be dealt with the same as Request Nos. 21 and 26, subject to the time limitations, and Defendants anticipate there will be some overlap with those requests.
Request No. 31
All versions of the "terms and conditions" documents used in an adult internet service for all relevant times.
Modification:
Defendants will provide its information responsive to this request concerning terms and conditions, subject to the time limitations.
Request No. 37
All documents and electronically stored information concerning complaints about any adult internet service.
Modification:
Defendants will provide, subject to the time limitations, responses to this request limited to pornography and dating complaints. All personal data is to be eliminated from any of the information produced in response to this request, including, but not limited to, names, addresses, telephone numbers, email addresses, credit card and banking information, and any depiction or likeness of any of the persons who made such complaints about pornography and dating to the defendants.
Interrogatory
Further, it was stipulated that all defendants will provide a single response to the following interrogatory:
Provide a description of job responsibilities for any and all officers of the named defendants in the possession and control of the named defendants.
LEWIS BRISBOIS BISGAARD & SMITH LLP
Ralph A. Zappala
THE KAUFMAN LAW GROUP
Gary Jay Kaufman
Colin Hardacre
Attorneys for Defendants ALLAN HENNING,
DENIRO MARKETING LLC; MODENA
MARKETING, INC.; and DELTABREEZE
HOLDINGS, LTD.;
GARBARINI LAW GROUP PC
Daniel L. Balsam
Richard M. Garbarini (pro hac vice)
Thomas J. FitzGerald (pro hac vice)
Attorneys for Plaintiffs
ATTESTATION PURSUANT TO GENERAL ORDER 45
I, Ralph A. Zappala, attest that concurrence in the filing of this document has been obtained from each of the other signatories. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed on November 29, 2011, in San Francisco, California.
Ralph A. Zappala
IT IS SO ORDERED:
United States Magistrate Judge
Elizabeth D. Laporte