Lasswell Foundation for Learning and Laughter, Inc. et al v. Schwartz et alREPLY to Response to Motion re MOTION to Compel Defendant's Consent to Plaintiffs' Third-Party SubpoenasM.D. Fla.February 8, 2019UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LASSWELL FOUNDATION FOR LEARNING AND LAUGHTER, INC., FRED LASSWELL, INC., RED RYDER ENTERPRISES, INC., and GOLDBOOK, LTD., Plaintiffs, Case No.: 8:17-cv-00046-JDW-TBW vs. TIMOTHY SCHWARTZ, DESIGN TANK, INC., and DOES 1-10, Defendants. ___________________________________/ PLAINTIFFS’ REPLY TO DEFENDANT’S RESPONSE IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT’S CONSENT TO PLAINTIFFS’ THIRD-PARTY SUBPOENAS Plaintiffs, Lasswell Foundation for Learning and Laughter Inc. (“Lasswell Foundation”), Fred Lasswell Inc., Red Ryder Enterprises, Inc. (“Red Ryder”) and Goldbook, Ltd. (“Goldbook”) (collectively “Plaintiffs”), by and through undersigned counsel, file this Reply to Defendant Timothy Schwartz’s Response in Support of Plaintiffs’ Motion to Compel Defendant’s Consent to Plaintiffs’ Third-Party Subpoenas (“Motion”). I. INTRODUCTION This Court should grant Plaintiffs’ Motion considering that several of the third- parties subpoenaed by Plaintiffs have objected on the grounds of privacy under the Stored Communications Act (“SCA”) and other related statutes, which necessitates Defendant’s consent so that certain requested information can be provided. Defendant’s Response, [Def.’s Resp., Dkt. 103], contains statements that are factually untrue. Case 8:17-cv-00046-JDW-CPT Document 108 Filed 02/08/19 Page 1 of 6 PageID 1334 2 II. ARGUMENT This Court should grant Plaintiffs’ Motion as the acquisition of information in Plaintiffs’ Third-Party Subpoenas was previously contemplated and sanctioned by this Court during the November 27, 2018 status conference. Defendant’s response provides additional support as to why a Court Order requiring consents is the fastest and most reliable way to obtain information sought in the Third-Party Subpoenas. A. Defendant Misstates Several Facts Surrounding the Third-Party Subpoenas. Defendant states that the “third parties have already fully responded to Plaintiffs’ subpoenas.” This is untrue. Some third-parties, such as Acquia Hosting have not provided any response to the subpoena thus far. Others, like BlueHost and GoDaddy, have cited Defendant’s Motion to Quash as a barrier to providing responses, including for subpoenas related to WHOIS (registrant) information for domains directly at issue in this action, Cartoonys.Com and DayToLaughAndPlay.Org. Still further, other third-parties like Amazon, Aplus.Net, Apple, and Google have provided a slew of objections – including under statutes such as the Stored Communications Act (“SCA”) and The Federal Video Privacy Protection Act (“VPPA”) – that prohibit them from providing responses to the subpoena requests. Other third-parties have clearly not provided all the information requested, having responded without providing the requested (albeit private account) information. It is safe to assume that the Motion to Quash has been provided to all of the third-parties subpoenaed, although Defendant has not shared any of his communications with the deponents. Defendant further indicates that “[o]f the twenty-one (21) third-party subpoenas issued by Plaintiffs, eight (8) have provided all responsive documents.” [Defs.’ Resp., Dkt. 103, pg. 6]. For instance, CafePress, who responded to Plaintiffs’ request for “any and all commercial transaction records, activity history, and payment amounts made through Case 8:17-cv-00046-JDW-CPT Document 108 Filed 02/08/19 Page 2 of 6 PageID 1335 3 Schwartz’s CafePress Account,” with commissions earned off purchases, provided no information as to where or to who those commissions went. [Ex. 1, CafePress Response]. Plaintiffs are currently working with CafePress and other third-parties to confirm whether further responsive information still exists. The only way to confirm with third-parties that they have provided all information is to provide the ‘consent’ of Mr. Schwartz, engage in follow-up discussions, and have the third-parties confirm in writing that everything has been identified and provided. Defendant also inaccurately states that “Plaintiffs refused to modify the keywords,” [Def.’s Resp., Dkt. 103, pg. 5, ¶ 3], for the Third-Party Subpoenas to email providers, when Plaintiffs in fact made several offers for Defendant to contribute to the keyword list or identify negative keywords, to which Defendant declined. [See Joint Statement, Dkt. 101, pg. 3]. For instance, in Plaintiffs’ December 13, 2018 email to Defendant, Plaintiffs’ counsel offered Defendant the opportunity to “suggest search terms that could be pertinent to privileged information.” [See Ex. 6 to Pls.’ Mot. to Compel]. Defendant declined to even discuss, or propose, any alternative keywords, and has not done so in his Response. The keywords are designed to limit production to discoverable information. Plaintiffs have gone to great lengths to demonstrate why each individual request and keyword in the Third-Party Subpoenas – including those related to Design Tank – are relevant, as reflected in extensive charts attached as Exhibit 4 to the Joint Statement RE: Remaining Issues for Judicial Intervention. [Dkt. 101]; [See Ex 4 to Joint Statement, Third-Party Subpoena Relevancy Charts for BlueHost, GoDaddy, Google, and PayPal, Dkt. 101-4, pgs. 1-200]. Defendant primarily takes issue with the use of “designtank” as a keyword in the Third- Party Subpoenas, noting it is “part of Schwartz’s email address and as such would expose every email to and from Schwartz, unnecessarily disclosing banking info, user accounts, passwords, purchase receipts, credit card info, tax information, and other documents not relevant to the matter Case 8:17-cv-00046-JDW-CPT Document 108 Filed 02/08/19 Page 3 of 6 PageID 1336 4 or likely to lead to discoverable information1.” [Def.’s Resp., Dkt. 103, pg. 12]. Design Tank is the DBA of Defendant for all activities related to this action. By way of example only, invoices for work done by Schwartz were provided by “Design Tank,” [Ex. 2], and domain registrations and accounts were created in the name Design Tank. [Ex. 3]. Mr. Schwartz represented that he was doing work full time for Plaintiffs for a period of years, resulting in payments in hundreds of thousands of dollars to Design Tank. Defendants communications with Plaintiff were under various ‘design tank’ email addresses. [See, e.g., Ex. 4].2 Detailed explanation of how “designtank” is relevant in this action were provided to Defendant in Plaintiffs’ Subpoena Relevancy Charts. [See Ex. 4 to Joint Statement, Dkt. 101-4]. Defendant has not provided any specific examples which support his allegation that, for instance, “tax information” or “passwords” – which are typically encrypted and not even available to the service provider – would be disclosed. Regardless, all private account information would be protected by a protective order. Further, Defendant asserts that “[o]f the twenty-one (21) third-party subpoenas issued by Plaintiffs, seven (7) are Plaintiffs’ own accounts and unrelated to Defendant,” [Def.’s Resp., Dkt. 103, pg. 6], including those for Aplus.Net (aka: “Deluxe”) (UncleFred.Com host); Earthlink (Reseller/host of UncleFred.Com); Tucows (Registrar for UncleFred.Com); and Network Solutions (Registrar for UncleFred.Com). While UncleFred.Com is Plaintiff Fred Lasswell, Inc.’s main domain name, it is alleged that Defendant had access, controlled, and made changes to this domain name and the websites associated thereto from about 2008 until 2014 or later. [See Am. Compl., Dkt. 5, pg. 9 ¶ 31]. Defendant also proffers that “[o]f the twenty-one (21) subpoenas issued by Plaintiffs, six (6) were set up by Defendant on Plaintiffs’ behalf,” [Def.’s Resp., Dkt. 1 As explained more thoroughly below, this is not the standard for relevancy pursuant to the Federal Rules of Civil Procedure. 2 Exhibit 4 was found in Defendant’s Answer to the Amended Complaint. [See Ex. 10 to Answer, D.E. 31-11, pg. 11]. Case 8:17-cv-00046-JDW-CPT Document 108 Filed 02/08/19 Page 4 of 6 PageID 1337 5 103, pg. 6], including Amazon, Apple, CafePress, and GoDaddy. This is a key contested issue. Plaintiffs assert that Defendant was not authorized to setup these accounts. Seeing how these accounts were set up, under whose name, using whose credit cards, with what account holder contact information, whether items were sold, and what bank or other accounts were used to receive money, and any changes thereto, is all discoverable. Third-parties such as Amazon, Apple, and GoDaddy have objected to providing information protected by the Stored Communications Act or as private information. B. Defendants Schwartz Misstates the Law Regarding Relevancy of the Discovery Scope. Defendant (again) references and relies upon outdated Federal Rules of Civil Procedure, notably FRCP 26(b)(1) regarding the scope of discovery. Most notably, since the 2015 Amendment, FRCP 26(b)(1)’s standard is no longer “reasonably calculated to lead to the discovery of admissible evidence.” Rather, the Rule now states: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case . . . . Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). C. Obtaining Information From Defendant Directly is Impractical As noted several times, this Court has already determined that the best way for Plaintiffs to secure the information requested in the Third-Party Subpoenas is through the third-parties themselves, rather than through Defendant directly. III. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant Plaintiffs’ Motion to Compel and Order that Defendant execute the Consent Forms for information sought in Plaintiffs’ Third-Party Subpoenas. Case 8:17-cv-00046-JDW-CPT Document 108 Filed 02/08/19 Page 5 of 6 PageID 1338 6 Dated: February 8, 2019 Respectfully Submitted, /s/ Jonathan B. Sbar Jonathan B. Sbar, Esq. (FBN 131016) Email: jsbar@rmslegal.com Andrea K. Holder, Esq. (FBN 104756) Email: aholder@rmslegal.com ROCKE, McLEAN & SBAR, P.A. 2309 S. MacDill Avenue Tampa, FL 33629 Phone: 813-769-5600 Fax: 813-769-5601 /s/ Craig Enrico Schaefer Craig Enrico Schaefer (Pro Hac Vice) Traverse Legal, PLC 810 Cottageview Drive G-20 Traverse City, MI 49684 enrico.schaefer@traverselegal.com Phone: 231-932-0411 Counsel for Plaintiffs CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 8, 2019 a true and correct copy of the foregoing was filed electronically with the Clerk of the Court by using the CM/ECF system and served by e- mail on anyone unable to accept electronic filing. /s/ Craig Enrico Schaefer Craig Enrico Schaefer (Pro Hac Vice) Traverse Legal, PLC Case 8:17-cv-00046-JDW-CPT Document 108 Filed 02/08/19 Page 6 of 6 PageID 1339
