-2-
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NETSPHERE, INC., §
MANILA INDUSTRIES, INC., and §
MUNISH KRISHAN, §
Plaintiffs. §
§ Civil Action No. 3-09CV0988-F
v. §
§ Motion for Expedited Relief
JEFFREY BARON, and §
ONDOVA LIMITED COMPANY, §
Defendants. §
MOTION FOR LEAVE TO FILE: EXPEDITED MOTION TO COMPEL
PETER VOGEL TO PRODUCE RECORDS OF TWO E-MAILS
TO THE HONORABLE JUDGE ROYAL FURGESON:
COMES NOW JEFF BARON, and moves this Court to grant leave to file the
following expedited motion to compel Peter Vogel to produce records of two e-mails.
The records have been subpoenaed from the receiver, but he has refused to produce
them. (See Exhibit A).
A. BACKGROUND
The background of this motion is as follows:
The receiver represented to this Court that they did not circulate a conference
number to Jeff. The receiver represented that Jeff got the number (supposedly via a
conspiracy with Harbin) and called uninvited to the conference call in a “despicable”
effort to threaten and harass. Then, the undersigned counsel produced two e-mails
proving that the receiver's story was a fabrication. The e-mails proved that the receiver
(1) had directed Jeff first on March 30, 2010 to call the phone conference to be held on
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 1 of 24 PageID 17288
-3-
April 1st, and then (2) again on April 1st directed Jeff to call a new number for the
conference.
The receiver is an official of the Court. Accordingly, a receiver who makes
false representations to the Court has lost all legitimacy as a receiver. Further, if a
receiver falsely represents the facts in carrying out the official business of the Court,
the integrity of the Court is itself threatened. The matter is relevant and serious.
At this point the receiver has been confronted with the evidence against them,
and has had the full opportunity to investigate and formulate their response. The
receiver has filed a least two 'explanations' (one under seal) digging in as to their
position.
The evidence and the receiver's explanation do not reconcile. On one side is the
evidence. The evidence includes an e-mail sent from the receiver on March 30, 2011
directing Jeff to call a conference call on April 1st. There is no ambiguity. The e-mail
was clearly sent on March 30. On the other side is the receiver, who insists that “what
actually happened” was that on April 1st a conference number was circulated and Mr.
Baron was “inadvertently included”. The timing clearly does not line up. Someone is
not telling the truth– if the e-mails are authentic, the receiver has been caught in a
pattern of false representations to this Court.
Notably, there is no confusion over the date of the first e-mail evidence. The e-
mail clearly states it was received March 30th. The receiver has been requested to
produce the e-mail log for the dalexht2 Gardere e-mail server (that appears in the e-
mail’s “fingerprint”) for March 30, 2011. The receiver has refused.
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 2 of 24 PageID 17289
-4-
The receiver has steadfastly denied the timing of the first e-mail and steadfastly
denies sending the second email. Yet, the receiver offers no credible explanation for the
e-mail evidence. When asked to produce copies of the two e-mails and the server logs
for the two dates on which the e-mails were sent, the receiver has refused.
If the e-mails are authentic, the receiver has been caught not telling the truth. In
the face of the email evidence, the receiver’s response has been to insist more fervently
in the ‘truth’ of their position: ‘We swear, we didn’t send that email.’ As for explaining
the black and white evidence that they did, the receiver can only offer us a “Mystery”
(the receiver’s own words). While they seem to deny the authenticity of the e-mail, the
receiver speculates that maybe ‘The computer went and sent the second email to Jeff all
by itself.’ (the receiver’s own explanation).
Peter Vogel and his firm put themselves forth as experts on computer
technology, the forensics of electronic discovery, and the like. Yet, the best explanation
the receiver has to offer for the email evidence proving that they misrepresented the
truth to the Court is that it is a “Mystery”. Anyone who has used a computer
understands that there is a sent mail box. The receiver noticeably failed to mention
whether they have a copy of the ‘mystery’ e-mail in their sent mail box.
The receiver clearly did not understand that their E-mail has fingerprints.
Specifically, the receiver’s e-mail has both a thread index, <AcvvChO6Zczmw3xlQPK
2Qv1TKFaqkABgJY8g> and <AcvvChPDNJD+wBrwQiGLidYCi7IzIg==> and a
unique message ID, <B984C59883B3594BA31144D0472BDF1C8024B9B5@dalexm
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 3 of 24 PageID 17290
-5-
b2.Gardere.com> and <B984C59883B3594BA31144D0472BDF1C8024B94E@dalexmb2.
Gardere.com>.
These unique numbers will locate the e-mail within 10 seconds of effort by doing
a search for them in the receiver's e-mail. These unique numbers will also be found in
the receiver's e-mail server logs, showing information about the e-mail including when
the e-mails were sent, from whom, and to whom. The receiver has been requested to
produce those logs, and the receiver has refused. In the end, the receiver's attempt to
hide the evidence will be futile. Google mail has a copy of Google’s server logs, which,
if necessary, will prove the authenticity of the e-mail exhibits including the date and
origin of the e-mails. The receiver has been caught red handed, and in the end, there is
no way out of the falsehoods they have put forth to this Court.
B. THE PRODUCTION REQUEST
The receiver has been requested to produce a copy of the e-mail with Message-
IDs <B984C59883B3594BA31144D0472BDF1C8024B9B5@dalexmb2.Gardere.com>
and <B984C59883B3594BA31144D0472BDF1C8024B94E@dalexmb2.Gardere.com>.
These are the two unique fingerprints of the two e-mails in question. These can be
found easily by the date of the e-mails, or by a search based on the ID numbers. The
receiver has refused to produce the e-mails.
The receiver was also requested to produce the e-mail threads to which those
emails belong. Those threads will show the exact sequencing of the e-mails within the
thread. Each thread covers the same topic, so that no information beyond the subject of
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 4 of 24 PageID 17291
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the e-mails and proof of their authenticity would be disclosed by such a production. The
receiver has refused to produce the e-mail threads.
The receiver was requested to produce the logs of its e-mail sending program,
which tracks by Message-ID who sent each email, when, to whom (what IP and server)
the e-mail message was delivered. The logs would provide a list of Message-ID
numbers and technical information about the sending of those messages. The logs are
useless for discovering information about the content of any e-mail unless someone is
in possession of a specific email and can track the Message-ID in the log. That is the
case here. The logs themselves reveal no confidential information or the contents of
any correspondence. However, the logs’ checksum information can be used to
establish the authenticity of any particular e-mail if that e-mail is also available. The
log file is readily available and can be copied by a server technician in less than three
minutes of effort. The receiver has refused to produce the e-mail server logs.
C. THE RECEIVER’S PATTERN OF FABRICATION
The receiver filed a motion with the court affirmatively representing they did not
set up Mr. Baron to join the conference call, and he did so as part of a pattern of
intimidation. The receiver used the words "scare" and "intimidate" almost a dozen times
in their motion to discredit Mr. Baron and his counsel. The e-mail evidence is significant
because it proves (1) Mr. Baron was set up by the receiver—the call was placed because
the receiver made repeated efforts for Mr. Baron to place the call and (2) the receiver has
made repeated untrue representations to this Court. When confronted with the hard
evidence, the best the receiver could come up with is an entrenched denial. The
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 5 of 24 PageID 17292
-7-
receiver implies that the email evidence is fake. When requested to produce the e-mail,
the logs of the specific e-mail fingerprints, etc., the receiver has stonewalled and refused
to produce.
This incident is part of a pattern of fabrication on the part of the receiver. For
example, the receiver came up with the accusation against the undersigned counsel of
calling the Court a nazi officer. The receiver in multiple filings repeatedly made that
accusation to this Court. As another example, the receiver fabricated a claim that Mr.
Baron created and controls the Cook Islands manager of the LLC companies (CMDS).
The receiver just made up that claim out of thin air and falsely represented the
receiver’s fabricated ‘fact’ to the Court.
Here, once again, the receiver has continued that same pattern: fabrication
combined with the characterization of facts stretched beyond the point of legitimacy.
This includes also the following:
(1) The receiver’s characterization as a “threat and intimidation” an email
sent to Ms. Schurig clarifying that Mr. Baron was not authorizing waiver of
attorney-client privilege. The text of the e-mail sent by Ms. Schurig, does not
match the recitations of the receiver of ‘threat and intimidation’.
(2) The receiver’s representation that Jeff sent an email “threatening them
not to provide the Receiver with privileged information”. The evidence
discredits the receiver’s representation. Jeff never told anyone not to provide
information, and he never threatened anyone with anything. The only thing Jeff
has ever done was, through his counsel, to state his position on the key issues– in
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 6 of 24 PageID 17293
-8-
response to written requests inquiring as to his position – and to notify those
holding his privilege that he was not authorizing waiver of that privilege. Not
only was there no threat, no position was expressed as to the attorney’s
obligations.
(3) The receiver’s representation that Jeff accused “Ms. Schurig of
stealing $2 million from Mr. Baron [Docket No. 337] ("Felony Threat")”. Again
the receiver is fabricating accusations. Jeff took no position as to culpability or
the cause of the missing funds.
D. THE RELIEF REQUESTED
Jeff Baron moves jointly and in the alternative for the Court to order the receiver to
immediately:
(1) Produce copies of the emails with the message-id’s
<B984C59883B3594BA31144D0472BDF1C8024B9B5@dalexm
b2.Gardere.com> and <B984C59883B3594BA31144D0472BDF1C80
24B94E@dalexmb2.Gardere.com>;
(2) produce the receiver’s e-mail server logs for two specific days:
March 30, 2011 and April 1, 2011, specifically the logs of
dalexht1.Gardere.com and dalexmb2.Gardere.com for April 1 and
dalexht2.Gardere.com for March 30.
(3) produce a copy of all emails, and all server logs containing the
email Thread Indexes <AcvvCh06Zczmw3xlQPK2Qv1TKFaqk
ABgJY8g> or <AcvvChPDNJD+wBrwQiGLidYCi7IzIg==>;
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 7 of 24 PageID 17294
-9-
and
(4) produce the server logs containing the e-mail message-IDs:
a. <B984C59883B3594BA31144D0472BDF1C8024B9B5@dale
xmb2.Gardere.com> or
b. <B984C59883B3594BA31144D0472BDF1C8024B94E@dalexmb2
.Gardere.com>.
Respectfully submitted,
/s/ Gary N. Schepps
Gary N. Schepps
Texas State Bar No. 00791608
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940 - Telephone
(214) 347-4031 - Facsimile
E-mail: legal@schepps.net
COURT ORDERED TRIAL
COUNSEL FOR JEFF BARON
CERTIFICATE OF SERVICE
This is to certify that this brief was served this day on all parties who receive
notification through the Court’s electronic filing system.
CERTIFICATE OF CONFERENCE
This is to certify that I was unable to obtain the receiver’s agreement to produce
the requested documents.
CERTIFIED BY: /s/ Gary N. Schepps
Gary N. Schepps
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 8 of 24 PageID 17295
IN THE UNITED STATES DISTRICT COURT
FOR
THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NETSPHERE,
INC.,
§
§
§
§
§
§
§
§
§
§
§
§
MANILA
INDUSTRIES., INC., AND
MUNISH KRISHAN
PLAINTIFFS
V.
JEFFREY
BARON
AND
ONDOVA LIMITED COMPANY,
DEFENDANTS.
CIVIL ACTION
NO. 3:09-CV-0988-F
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUMENTS
TO: Defendant Jeffrey Baron, by service upon Mr.
Baron's
attorney
of
record, Gary
N.
Schepps, at 5400 LBJ Freeway, Suite 1200, Dallas, Texas 75240 or, alternatively, 7139
Eudora Drive, Dallas, Texas 75230.
Peter S. Vogel, Receiver responds to Jeffrey
Baron's
Subpoena for the Production
of
Documents served on April 15, 2011.
Respectfully submitted,
lsi
Barrv M Golden
Barry M. Golden
Texas
State
BarNo.
24002149
Peter
L. Loh
Texas Bar Card No. 24036982
GARDERE WYNNE
SEWELL LLP
1601
Elm Street, Suite 3000
Dallas, Texas 75201
(214) 999-4667 (facsimile)
(214)
999-3000 (telephone)
bgolden@gardere.com
ploh@gardere.com
ATTORNEYS
FOR
THE
RECEIVER,
PETER
S.
VOGEL
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 9 of 24 PageID 17296
CERTIFICATE
OF
SERVICE
I hereby certify that a true and correct copy
of
the foregoing document was served via
hand delivery on Mr. Gary Schepps on April 15, 2011.
lsi Peter
L.
Loh
Peter
L.
Loh
A.
BACKGROUND RELATING
TO
REQUESTS AND OBJECTIONS.
On
April 4, 2011, the Receiver filed
The
Receiver's Motion
to
Compel Information for
Preparation
of
Tax Filings and Request
for
Expedited Relief(the "Motion to Compel"). [Docket
No. 431.] In the Motion to Compel, the Receiver advised the Court that the Receiver lacks
certain key information necessary to complete the Baron Form
7004s, and that the only person
who appeared to have that information (other than Mr. Baron, himself) was one
of
Mr. Baron's
former attorneys, Elizabeth Schurig (and possibly other members
of
her law firm). [Docket No.
431.] However, Ms. Schurig was refusing to assist the Receiver until the Court issued
an
order
requiring her assistance and thus, protecting her from a lawsuit or a grievance from Mr. Baron.
Ms. Schurig took this position after Mr. Baron and his counsel performed four specific acts
0 r
intimidation:
(1)
On February
10,2011,
Mr.
Baron's
counsel sent an e-mail
to
former Baron
attorneys threatening them not to provide the Receiver with privileged
information [Docket No. 432, Ex. B]
("February
10
E-mail Threat");
(2)
On
March 2, 2011, Mr. Baron filed a
brief
accusing Ms. Schurig
of
stealing $2
million from Mr. Baron [Docket No. 337]
("Felony Threat");
(3)
On
April
1,
2011, Mr.
Baron's
counsel sent an e-mail to Ms. Schurig threatening
her not to provide the Receiver with the requested tax information [Docket No.
432, Ex. A]
("April 1 E-mail Threat"); and
(4) Also on April
1,
2011, Mr.
Baron's
counsel appeared uninvited on a conference
call with the Receiver's counsel and Ms. Schurig (the
"April 1 Telephone
Incident"). [Docket No. 431.]
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUM ENTS
PAGE
2
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 10 of 24 PageID 17297
In recent filings, Mr. Baron did not deny sending the February
10
E-mail Threat, making
the Felony Threat, or sending the April 1 E-mail Threat. [Docket Nos. 440-41.] Instead, Mr.
Baron only addressed the fourth
tactic-the
April 1 Telephone Incident. Mr. Baron claims that
the Receiver invited Mr. Baron to participate in the calls. [Docket No.
440.] Here
is
what
actually happened.
On April
1,
2011, the Receiver's counsel circulated a conference number via Microsoft
Outlook to Ms. Schurig and others, and inadvertently included Mr. Baron (the "First Conference
E-mail
..
).Mr.
Baron, after receiving the First Conference E-mail, apparently shared it with his
counsel, who then sent the Receiver an e-mail threatening the Receiver with ethical violations
for
communicating directly with Mr. Baron. [Sealed Appendix in Support
of
the Receiver's Sealed
Motion to Corifirm Propriety Relating
to
Tax Filings
and
Request
for
Expedited Considerafion
("Appx." or "Appendix") at Exhibit
A,
Appx. 1-2.] The Receiver immediately responded
to
that
e-mail by sending two e-mails to Mr. Baron's counsel. The first e-mail stated that the Receiver's
counsel sent the First Conference E-mail to Mr. Baron inadvertently and in error, and that
Mr.
Baron should disregard it. [Exhibit
B,
Appx. 3-5.] The second e-mail went a step further,
asserting that the First Conference E-mail was attorney work product and demanding through a
clawback that Mr. Baron and his counsel return or delete the First Conference E-mail. [Exhibit
C,
Appx. 6-9.]
Next, the Receiver circulated a new conference number to Ms. Schurig and
others-and
specifically excluded Mr. Baron and his counsel (the "Second Conference E-mail"). [Exhihit
0,
Appx. 10-11.] Although the Receiver did not send Mr. Baron or his counsel the
Secone!
Conference
E-mail.Mr.
Baron's counsel, nevertheless, appeared uninvited on the call. [Docket
No. 431.] Mr. Baron alleges that, in an attempt to
"set up" Mr. Baron, the Receiver's counsel
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUMENTS
PAGE3
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 11 of 24 PageID 17298
actually sent a third conference
e-mail-this
one only to Mr. Baron (the "Mystery E-mail").
[Docket No. 440, Ex. E.] While the Receiver's counsel cannot dismiss the possibility that
something in Outlook caused the Receiver's counsel's computer
to
spontaneously and
automatically send Mr. Baron the Mystery E-mail without the Receiver's counsel's knowledge
or intention, the Receiver's counsel can state the following for a certainty:
(1) He did not create or intentionally cause
to
be created the Mystery E-mail;
(2) He did not intentionally send or cause to be sent to Mr. Baron the Mystery E-mail;
and
(3) He was absolutely unaware
of
the possibility
of
the transmission
of
any kind
of
message to Mr. Baron until the allegation concerning the Mystery E-Mail arose
and, in fact, saw the Mystery E-Mail for the first time in Mr.
Baron's
Motion for
Leave to File: Motion to
Stay Order to Disclose Attorney-Client Materials.
[Jd.]
(collectively, the
"Receiver's
Counsel's Statement").
The Court granted the Motion to Compel. [Docket No. 435], and the Receiver
interviewed Ms. Schurig and obtained what relevant information she possessed. Unfortunately,
after speaking with Ms. Schurig, the Receiver realized that essential tax information regarding
Mr.
Baron
and other Receivership Parties is still highly deficient. Apparently, the only person
who could fill in the blanks is
J:v1r.
Baron himself, and the Receiver doubts that Mr. Baron's
cooperation is forthcoming. Thus, on April
11,2011,
the Receiver filed The Receiver's Motion
to Confirm Propriety Relating to Tax Filings
and
Requestfor
Expedited Consideration ("Motion
to Confirm") in which the Receiver advises the Court that assuming that Mr. Baron does not
provide this information, and based on tax advice
of
an accounting firm, the Receiver intends not
to make filings after all (rather than guess and make incorrect tax filings). Through the Motion
to Confirm, the Receiver seeks an
Order
of
this Court confirming the
Court's
assent. As
of
today, April
15,2011,
the Court has not ruled on the Motion to Confirm.
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUMENTS
PAGE4
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 12 of 24 PageID 17299
B.
GENERAL
OBJECTIONS.
The following objections apply to all
of
the document requests in the subpoena.
1.
GENERAL
OBJECTIONS
AS
TO
RELEVANCY
AND HARASSING IN
NATURE.
On April
15,2011,
Mr. Baron sent a .pdf to the Receiver, attached hereto
as
Exhibit
A.
The
.pdf
(for which the Receiver's counsel agreed to accept service on the Receiver's behalf) did
not contain the missing information. Instead, it contained a subpoena to the Receiver demanding
that he produce documents. The requests appear to
be
geared solely documents relating
to
the
Receiver's Counsel's Statement. These requests are irrelevant for at least two reasons.
FirsL,
even
if
the April 1 Telephone Incident was not something Mr. Baron or his counsel did for the
purpose
of
intimidating with Mr. Schurig's assistance. Second, the Receiver already interviewed
Ms. Schurig and made the decision not to make the tax filings. Thus, the April 1 Telephone
Incident bears little relevancy anymore. Clearly, the point
of
the subpoena
lS
to
harass the
Receiver. The Receiver generally objects to all
of
the requests as irrelevant and harrassing.
2.
GENERAL
OBJECTIONS
AS
TO
UNDUE
BURDEN
AND HARASSING
IN
NATURE.
The Court has repeatedly advised the Receiver
to
minimize expenses, the most recent 0 f
which occurred in an order dated April
1,
2011: "As previously stated the Court
is
seriously
concerned about the cost
of
this Receivership and again encourages the Receiver to minimize
expenses in every way
possible." [Docket No. 427.] Based on the Court's requests that the
Receiver minimize its expenses, the Receiver views responding to the document requests
(collecting documents, reviewing documents, producing documents, creating privilege logs, etc
.)
to be unduly burdensome. This is especially the case since the document requests appear
to
require the Receiver to determine how to obtain e-mail and server logs
of
the Gardere Wynne
Sewell LLP law
firm-documents
that are not readily obtainable, that are voluminous, and that
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUMENTS
PAG!': 5
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 13 of 24 PageID 17300
will necessarily require a massive and time-intensive privilege log. The Receiver generally
objects to all
of
the requests
as
unduly burdensome and harassing in nature.
3. GENERAL OBJECTIONS AS TO PRODUCTION DATE AND
HARASSMENT.
Federal Rule
of
Civil Procedure 34(b)(2)(A) provides that absent a court order
to
the
contrary, the party responding
to
document requests
is
permitted 30 days for his response. Baron
served the subpoena on the afternoon
of
Friday, April
15,2011,
with a demand for production
by
2:00 p.m.
on
the very next business day, April
18,
2011. Thus, the document requests
do
not
permit the Receiver with the requisite time prescribed under the Federal Rules and, giving the
Receiver a single business day
to
comply
is
facially harassing. The Receiver generally objects
to
all
of
the requests based on the production date and
as
harassing.
4. GENERAL OBJECTIONS AS TO PRIVILEGE AND
CONFIDENTIALITY.
Each
of
the document requests appears to seek the disclosure
of
information or material
protected from disclosure under, without limitation, the attorney-client privilege, the work
product doctrine, or any other statutory or common-law privilege, prohibition, limitation, or
immunity from disclosure. The requests also appear to seek documents that contain confidential,
commercial, proprietary, and/or trade secret information,. The Receiver generally objects
to
producing privileged or confidential documents.
5. GENERAL OBJECTIONS AS TO VAGUENESS, AMBIGUITY, AND
CONFUSION.
The Receiver generally objects to the document requests because they are all
so
vague,
ambiguous, and confusing as not to be susceptible to a reasoned interpretation or response and
would require the Receiver to ponder, speculate, or subjectively determine what information
may, or may not, be responsive.
THE RECEIVER'S OBJECTIONS TO SUBPOENA FOR DOCUMENTS
PAGE6
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 14 of 24 PageID 17301
D.
SPECIFIC
OBJECTIONS.
REQUEST
NUMBER
1:
A copy
of
all em ails,
and
all sel"ver logs containing the email
Thread
Indexes
<AcvvCh06Zczmw3xIQPK2Qv1 TKFaqkABgJY8g>
and
<AcvvChPDNJD+wBrwQiGLidYCi7IzIg==>.
RESPONSE
AND
OBJECTION:
In addition to the General Objections set forth above, which the Receiver incorporates
into these objections by reference, the Receiver objects to this document request because
it
requests information that is neither relevant to the subject matter
of
the above-captioned action
nor reasonably calculated to lead
to
the discovery
of
admissible evidence therein. The Receiver
further objects to the request
as
overbroad and unduly burdensome. The Receiver further objects
to
producing documents prior to the time permitted in the Federal Rules
of
Civil Procedure. The
Receiver further objects because the request seeks the disclosure
of
information or material
protected from disclosure under, without limitation, the attorney-client privilege, the work
product doctrine, or any other statutory or common-law privilege, prohibition, limitation, or
immunity from disclosure, as well as confidential, commercial, proprietary, and/or trade secret
information. The Receiver further objects to the document requests because it is
so
vague,
ambiguous, or confusing as not to be susceptible to a reasoned interpretation or response and
would require the Receiver to ponder, speculate, or subjectively determine what information
may, or may not, be responsive. The Receiver objects because the request is harassing.
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUMENTS
PAGE7
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 15 of 24 PageID 17302
REQUEST
NUMBER
2:
A copy
of
all
em
ails,
and
all
server
logs
containing
the email Message-ID
<B984C59883B3594BA31144D0472BDFIC8024B9B5@dalexmb2.Gardere.com>.
RESPONSE
AND
OBJECTION:
In addition to the General Objections set forth above, which the Receiver incorporates
into these objections by reference, the Receiver objects
to
this document request because
it
requests information that is neither relevant to the subject matter
of
the above-captioned action
nor reasonably calculated to lead to the discovery
of
admissible evidence therein. The Receiver
further objects to the request as overbroad and unduly burdensome. The Receiver further objects
to
producing documents prior to the time permitted in the Federal Rules
of
Civil Procedure. The
Receiver further objects because the request seeks the disclosure
of
information or material
protected from disclosure under, without limitation, the attorney-client privilege, the work
product doctrine, or any other statutory or common-law privilege, prohibition, limitation, or
immunity from disclosure, as well as confidential, conunercial, proprietary, and/or trade secret
information. The Receiver further objects to the document requests because
it
is
so
vague,
ambiguous, or confusing as not
to
be susceptible
to
a reasoned interpretation or response
and
would require the Receiver to ponder, speculate, or subjectively determine what information
may, or may not, be responsive. The Receiver objects because the request is harassing.
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUMENTS
PAGE
8
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 16 of 24 PageID 17303
REQUEST
NUMBER
4 [sic]:
A copy
of
all emails,
and
all
server
logs
containing
the
email
Message-ID
<B984C59883B3594BA31144D04
72BDFI
C8024
B94E@dalexmb2.Gardere.com>.
RESPONSE
AND
OBJECTION:
In addition to the General Objections set forth above, which the Receiver incorporates
into these objections by reference, the Receiver objects to this document request because
it
requests information that is neither relevant to the subject matter
of
the above-captioned action
nor reasonably calculated to lead to the discovery
of
admissible evidence therein. The Receiver
further objects to the request as overbroad and unduly burdensome. The Receiver further objects
to producing documents prior to the time permitted in the Federal Rules
of
Civil Procedure. The
Receiver further objects because the request seeks the disclosure
of
information or material
protected from disclosure under, without limitation, the attorney-client privilege, the work
product doctrine, or any other statutory or common-law privilege, prohibition, limitation, or
immunity from disclosure, as well as confidential, commercial, proprietary, and/or trade secret
information. The Receiver further objects to the document requests because
it
is
so
vague,
ambiguous,
or
confusing as not
to
be susceptible to a reasoned interpretation or response and
would require the Receiver to ponder, speculate, or
SUbjectively determine what information
may, or may not, be responsive. The Receiver objects because the request is harassing.
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUMENTS
PAGE
9
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 17 of 24 PageID 17304
REQUEST
NUMBER
5 [sic]:
The
complete email (mapi
and
smtp) logs of dalexmb2.Gardere.com for
April!,
2011.
RESPONSE
AND
OBJECTION:
In addition to the General Objections set forth above, which the Receiver incorporates
into these objections by reference, the Receiver objects
to
this document request because it
requests information that is neither relevant to the subject matter
of
the above-captioned action
nor reasonably calculated to lead to the discovery
of
admissible evidence therein. The Receiver
further objects to the request as overbroad and unduly burdensome. The Receiver further objects
to producing documents prior to the time permitted in the Federal Rules
of
Civil Procedure. The
Receiver further objects because the request seeks the disclosure
of
information or material
protected from disclosure under, without limitation, the attorney-client privilege, the work
product doctrine, or any other statutory or common-law privilege, prohibition, limitation, or
immunity from disclosure, as well as confidential, commercial, proprietary, and/or trade secret
information. The Receiver further objects to the document requests because it is
so
vague,
ambiguous, or confusing as not
to
be susceptible
to
a reasoned interpretation or response and
would require the Receiver to ponder, speculate, or subjectively determine what information
may, or may not, be responsive. The Receiver objects because the request is harassing.
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUMENTS
PAGEIO
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 18 of 24 PageID 17305
REQUEST
NUMBER
6 [sic]:
The
complete email
(mapi
and
smtp) logs
of
dalexht1.Gardere.com for
April!,
20t
1.
RESPONSE
AND
OBJECTION:
In addition to the General Objections set forth above, which the Receiver incorporates
into these objections by reference, the Receiver objects
to
this document request because
it
requests information that is neither relevant to the subject matter
of
the above-captioned action
nor reasonably calculated to lead to the discovery
of
admissible evidence therein. The Receiver
further objects to the request as overbroad and unduly burdensome. The Receiver further objects
to producing documents prior to the time permitted in the Federal Rules
of
Civil Procedure. The
Receiver further objects because the request seeks the disclosure
of
information or material
protected from disclosure under, without limitation, the attorney-client privilege, the work
product doctrine, or any other statutory or common-law privilege, prohibition, limitation, or
immunity from disclosure, as well
as
confidential, commercial, proprietary, and/or trade secret
information. The Receiver further objects to the document requests because it
is
so
vague,
ambiguous, or confusing as not to be susceptible to a reasoned interpretation or response and
would require the Receiver to ponder, speculate, or subjectively determine what information
may, or may not, be responsive. The Receiver objects because the request is harassing.
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUMENTS
PAGE
11
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 19 of 24 PageID 17306
REQUEST
NUMBER
7 [sic]:
The
complete email (mapi
and
smtp) logs of dalexht2.Gardere.com for
March
30,
2011.
RESPONSE
AND
OBJECTION:
In addition to the General Objections set forth above, which the Receiver incorporates
into these objections by reference, the Receiver objects
to
this document request because
it
requests information that is neither relevant to the subject matter
of
the above-captioned action
nor reasonably calculated to lead to the discovery
of
admissible evidence therein. The Receiver
further objects to the request as overbroad and unduly burdensome. The Receiver further objects
to
producing documents prior to the time permitted in the Federal Rules
of
Civil Procedure. The
Receiver further objects because the request seeks the disclosure
of
information or material
protected from disclosure under, without limitation, the attorney-client privilege, the work
product doctrine, or any other statutory or common-law privilege, prohibition, limitation,
01'
immunity from disclosure, as well as confidential, commercial, proprietary, and/or trade secret
information. The Receiver further objects to the document requests because it
is
so
vague,
ambiguous,
or
confusing as not
to
be susceptible to a reasoned interpretation or response and
would require the Receiver to ponder, speculate, or subjectively determine what information
may, or may not, be responsive. The Receiver objects because the request
is
harassing.
THE
RECEIVER'S
OBJECTIONS
TO
SUBPOENA
FOR
DOCUMENTS
PAGE12
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 20 of 24 PageID 17307
EXHIBIT A
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 21 of 24 PageID 17308
OAGSS
(Rev. 1/
94)
Subpoena
in
a Civil Case
Issued
by
th
e
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
NETSPHERE, INC.,
ET
AL
v.
SUBPOENA
IN
A
CIVI
L
CASE
JEFFREY
BARON,
ET
AL
TO:
Peter
Vogel
1601
Elm
Street
, Suite 3000
Dallas, Texas 75201
Case Number: I 3-09CY0988-F
YOU ARE COMMANDED to appear
in
the United States District court
at
the place, date,
und
tirne speciJled be
low
to
testify in the above case.
PLACE OF TESTIMONY
COllRTl<oOM
D,.\TI
: I\ ND TIME
YOU ARE COMMANDED to appear at the place, date, and time specified below to testify al tIte taking
ora
deposi
ti
on
in the above case.
PLAn'
OF DEPOSITION
Di\'!'I:
1
\"'1)
rt
ME
x YOU ARE COMMANDED to produce and permit inspection and copying
orlhe
following documents or objects
at
the
place, date,
and
time specified below (list documents or objects);
ALL ITEMS LISTED
IN
THE ATTACHED EXHIBIT "A"
PLACE:
Ui\
1'[
AN,)
TIME
SCHEPPS
LAW
OFFICES,
5400 LBJ Freeway, Suite \200, Dallas, Texas 75240
,\ l r
il
IS,
2011
at 2:00 p
ili
YOU ARE COMMANDED
to
permit inspection
of
the following premises at the datl:
<I
nc!
lime specified below
PREMISES
[
"AT'
AND
TIM'
Any orgllllization not a party to this suit that
is
subpoenaed
for
the taking
ora
deposition shall
desi
gllale aile or more officers,
directors, or managing agents, or other persons who consent to testi
Cy
all
its behalf,
11l1d
may set
1'01111,
for
each persall desigmlted,
the matters all which the person will testify. Federal Rules
of
Civil
PrOeedlll"
C,
30
(b)(G
).
ISSUING OFFICER ' S SIGNATU
RI
Z AND TI
TL.E
n Nl1ll',\
TE
IF
1\
TTORNEY
FO
r( I'L!,INTIFF
OR
DEFloN
DI\N
T)
i)/\T
[.
At
l
ol'l"ie
for Def'tmdllllt 8lll'on
ISSUING
OFFICER'S NAME, ADDRESS
AND
PI
-IONI,
NUMBER
Gary
N.
Schepps, (214) 210-59
40
- Telephone
5400 LBJ Freeway, Suite 1200
Oall
.)s,
T
exas
75240
(See
Rille
45.
I',Jco.,1
Rlllr.s
of Civlll',occlilllC. I
'a
rls
C &
DOLI
lI
exl
page)
I If action
is
pending
in
district
olher
than
district
of
issliallce, slate district under case
nUlllber
,
A H
i!
15,2011
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 22 of 24 PageID 17309
A088
(Rev.
1(
94)
Subpoena
in
0
Civil
Cuse
PROOF OF SERVICE
DATE
SERVED
SERVED ON (PRINT
NAME)
MANNER
OF SE
RVI
CE
SERVED BY
(!'r
UNT
NAME)
Ti'll
E
DECLARATION OF SERVER
I declare under penalty
of
perjury under
the
laws
of
the United St8tes
of
America that the
fore
go
ing
infol'ltl8tiol1
con
tell
ned
in
the
Proof
of
Service
is
true and conect.
Executed
on
DATE
Rule
45,
Federal
Rules
of
Civil
Procedure,
Paris
C & D:
(c) PROTECTION
OF
PERSONS SUBJECT
TO
S
UGPOENAS.
( I ) A p
arty
or
on
altomey rosponslble forlhll \lsuilnr;e a
l1ct
~llr-v
l
ce
of a
~\
IIJ
PO~1l
shall t
<lk
e
r
enGo
ll
3bJ~
steps La avoid IIllP
I):)
III
U
~I
n
ctue
bur
d
en
or
ex
p
enao
on
a
pe
rson s
ubj
ect 10 Ihal subpoonil. TIlll court on
behalf
01
wl,lcl1lhe
slJbpoe
na W
'!-5
Issuac!lihall enrorce
Ih
ifi
tlilly
i'\
llCllll\pose upon
1/1
0
party
or altomey in breacl, of
Il1ls
(My
an
app
rCl
I
)J
itl
to
sanction
whiCl
l
m,IY
Include, bui
Is
nOllll1'lllOd
to, lost
ea
rnings
and
reasoll.
rJb
fU 9
1lCllrley's
fee.
(2)
(A) A person cornmanc
lel,l
to
produce
an~
I)Orm
it
i~spection
and
copying
of
de
signaled books, papers,
·
docllllnml
.
~
or
lo
nglble ttllngs,
or
inspection of premi
ses
noed not
3p
p
e8
r
In
persoll
at
the
pla~~
of
production
or
In
specllon Lllliess
c()l)
l/11
anded
to
apl1"(1( for deposition,
hearing or trial.
(B)
S
ub
Jeollo paragmph
(d)
(2) orlhls
rlll
~
,
U p I
SO
ll
cO
lll
lq
arWed
10
produc!) a
nel
parm
I!
I1spectloJl
and
copyJ~
m
ilY,
Wll
l
lhl
'1
'1
dpys Iter
service of s
l!lJ
poena or llef
l!lr
o
li
le
lhlla specif
lecl
for G
CJl
I1I
)liance If Slich
lime
Is
lass Illan
11
\ da
ys
after s
rvl
ce,
s~rve
up
on
II
I!J
parly
or
oltomey
designaled
in
th
o subpoena wl/lten
obJ
eC
UM
10
In
"pecll
1l
11 or copying of
<I
n)lo
l'
all
o(
t
he
df:lsignat
ad
m ata
rj
a
ls
or or
Il:1e
prenlls :I. If
oll!OC
I!
orI
Is
mada, lI'ie porlY serving lhe
SUbpo
e
na
shall not
IlO
uO
lhlfl
tJ
10
Inspect g
nd
co
py
1
1W[OI
,
iO
ls or Inspeclillo
pro
mises oxoepl p
ursliMt
to
an
Older
of
[no
couri by
WlilcJ
I lho.
subp9~
a
Was
Issue
r)
.
II
ob/oclion has b
oo
n mode,
the.
pflrty servi
ng
lhosubpo.ana may. upon
~QlIC~
10
tile per.;on c
ornrnm)d
ed
10
produce. move
al
any limo for.m
o(
d~
rto
cOll1pallhe I)roducllon. Sut h an
o
rd
or
10
comply
prOdLlCUQn
shatl prolool any persoll who
/fl
'nol :j
pill1
YO(
n
pItTner
or
a party from
slgnll1
c
l:lf11
oxpe
ns
e resulting I
ro
l1
)
111
0 \lspeellol1
and
copying oommanded. · .
(3)
(A)
On
timely motion,
the
court
by
which a subpoena
was
issued
shall quash or modify
Ihe
subpoena if it
(i) fails
to
allow reasonable time for
comp
lian
ce
,
(ii) requires a person who is not a parly
or
an
officer of a
SI(,NATURE
OF
SERVER
Af)DRESS
OF
SERVER
I
>arty
to
t
"lvel
lO a
plaoe
more tlian
100
mlll
!s
Irom tile
pl
3CII
Where lilat
per
son
ras
ides, Is omployed or regulnrl)'
Ira
ll
sa
.
cts
bu
si
ness In p
(!rs
on.
oxcept lllol, slI
bJ
ecllo
Ihe
prOvisions 01
"'~
ILI
\jO
(e) (
3)
(S)
(Iii) of
Il1
is
rU
l
e,
6
11
Cll
IJ
pe
r
so
n
may
In
orde
r
to
nil
and
II'
dl
Illl
commanded 10 l
r;avUI
frol)1
ony
-.
uch
plO
CEl
within l
ile
slate
In
wllle!1
t"
~,
111i'llls
helrl. III
(JII)
requires
disc
l
o~uru
01
prl'lllt
lue
d or
O
lh
lJr~rotectu,'
!llO
tt
er
ancJ
no
exception
or
w,liver appli
os.
or
(iv) subjects a person to undue burden
(8) If a subpoena
(I) requires d
iscl
osure of a
tra
de
secrel
or
other
co
n
ITdent
ial
r
ese
ar
ch,
developmenl, or conliner
c;lal
inlolillall
on,
or I •
(II)
requ
ires disclosure of
an
1Ilire
talned expert s opinion
or
info
rm
ation nol describing specl! c events or occurr
ences
In dlspule and
re!lllllll
ig
IrOll1111a
e~po
l'\
'S
study
1I1
",ta
11
01
III
IIH}
10
1\Il'
:S
I
or
lillY p
..
II
Iy.
or
(III
) t
qUlros
a
Jl
r
~
1
'II
vho
I',
o:o
t a
p;:1rly
or . 1
11
01
0 I" 01
(I
pally
to
Ilicur siJbstalllllll
eXf.lerl
"~
1
to
110
<JIIIIOf
O Ihon
100
IIll1es
10 a
llonci
Ifinl
1110
court
rnay.
10 proloot
(\
plJrllOl1 ',lIb/ecl
10
0 ullocltld
U)'
11
16
SUlJIJlJlJntJ.
quasi I 0 1
ll1
0di
fy
the
51,bpClt;lhl,
or,
Iliha
Pi!fly hi wilo balmlr
Ih
o
Sll
I.!P
IlI!I 1
,1
I!>
l~au
d sl
'L;ws
a
!lUbSI
;
lI1ti
il
lll'
flO
lor
1/10
t
~
llln
ony
or
II
lI
lI
erla
l
II
al
(.::lI\no
l
be
olh"rwll.o Illol WI(l1 l
UI
\1
11
11
111'
1'I:l
l
ds
lllf.l lll ld
lIbSOrUS
IIm
l
lh!J
per
~o n
to
wl
10rn
Ih
e subpoena ill udure
ssed
will
be
rea
so
llably
comp
ensat
ed,
Ille court may order appearance
or
production only
up
on
specilied conditions.
(d) DUTIES
IN
RESPONDING TO SUBPOENA.
(1)
A person responding
to
a subpoena
to
prOdUce
t.ivr::U
l)1onts
SI1,,)1
produce
them
as
they
are
kept ill
the
usual
co
urs
e of
bUS
l/less
or
511all
organize
and
label them
to
correspond
willllli
ll
C<l
legon
~
in
th
o dllilland.
(2)
When
ill
fo
rmation subject to a subpoe
na
Is
withh?ld
on
a
cl.aim
thai
it
is
privileged
or
SUl
l
/a
ct
to
pr
Olcc
Uol, iJS Irlill preparation materials,
the
claim shall
be
made
exp
re
ss
ly and shallbo
su
pported
by
a description of
Ihe
n,llure
of
lhe doc
ume
nts. C
UIl1n1unicalions,
or
things
not
produced
Ihat
is
sufficient to e
na
ble
IIHl
demall<.J
l
llgp.l
lY
to
contest
11'10
cl
aim.
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 23 of 24 PageID 17310
EXHlBIT "A"
YOU ARE COMMANDED
to
produce
und
pennit inspection and copying
of
the following documents or objects
HI
the
place, date,
and
time specified below (list documents
or
objects):
1)
A copy
of
all emails,
and
all server logs containing the email
Thread
Indexes
<AcvvCh06Zczmw3xlQPK2Qv1 TKFaqkABgJY8g> and
<AcvvChPDNJD+wBrwQiGLidYCi7IzIg==>.
2)
A copy
of
all emails,
and
all server logs containing the email Message-ID
<B984C59883B3594BA31144D0472BDFIC8024B9B5@daJexmb2.Gardere.com>.
4)
A copy
of
all emails,
and
all
server
logs containing the email Message-ID
<B984C59883B3594BA31144D0472BDFIC8024ll94E@dalexmb2.Gardere.com>.
5)
The
complete email (mapi and smtp) logs
of
dalexmb2.Gardere.com for April
1,
2011.
6)
The
complete email (mapi
and
smtp) logs of dalexht1.Gardere.com for April 1,
2011.
7)
The
complete email (mapi and smtp) logs
of
dalexht2.Gardere.com for March 30,
2011.
Case 3:09-cv-00988-F Document 455 Filed 04/18/11 Page 24 of 24 PageID 17311
