Letter from Brian Buckley to Rex Heinke.
Re: discovery in L.A. Times v. Free Republic.
Date: July 17, 1999.
Source: Free Republic, reprinted with permission.

Rex S. Heinke, Esq.
Heather L. Wayland, Esq.
GIBSON, DUNN & CRUTCHER
333 S. Grand Avenue
Los Angeles, CA 90071-3197

Matter: Los Angeles Times, et al. v. Free Republic, et al.
U.S.D.C. [Central] Case No. CV-98-7840 MMM (AJWx)
Subject: (1) Re-noticing of the Depositions of Plaintiffs' employees (2) Plaintiffs' outstanding discovery responses

Dear Rex and Heather:

Plaintiffs' discovery responses remain in noncompliance with F.R.Civ.P. Rules 33 and 34.

We agreed to the current briefing schedule for the motions for summary judgment, and to temporarily take the noticed depositions of Plaintiffs' employees off calendar, in the belief that Plaintiffs would be diligent in completing their discovery responses and would make a good faith effort to obtain the information and documents requested in the propounded discovery. However, another week has now passed since our last conference call with nothing more than a letter from you stating that the raw web site traffic data does exist on Plaintiffs' computers but that Plaintiffs will not produce it because you claim it would be too burdensome. We still have no verified interrogatory responses; we still have not received the promised privilege log for the propounded discovery; and we have not received the additional information concerning what computer software is used and what form the data is in. You have also not addressed the additional concerns set forth in our meet-and-confer letters of June 29th and June 30th and subsequent conference calls.

When we conferred, you expressed to us your belief that the taking of the depositions of your clients' technical people would prove unnecessary. However, it appears to be extremely tedious for you to obtain even the most straightforward information from them. Although you state that you have spoken to your technical people, you have still not even identified for us the "web server" and "operating system" software used, whether "cookie" technology is used to track users on the site, and the form of the data maintained. In your letter this week, you say that your clients do possess the "raw" web site traffic data, but you still have not identified exactly what logs were and are maintained, and approximately how large (in gigabytes) the data is.

In light of the foregoing, it would be imprudent of us not to re-notice the depositions of your clients' technical employees. We would like to take these depositions as soon as possible, preferably on July 22nd and July 23rd of next week. If you feel this is still inadequate notice, then we will notice them for July 29th and July 30th. However, this would be getting too close again to the filing deadline for the motions for summary judgment. After receiving the requested data and information from your clients, we need time to analyze it and prepare the data in a form convenient for the Court. Please let us know at your earliest convenience whether July 22nd and July 23rd are acceptable. As to the Washington Post employees, as previously suggested, I believe we can arrange to take these depositions by video conference rather than having them travel to Los Angeles.

In your initial (and still unverified) interrogatory responses you identified officers of Plaintiffs' corporations as the persons most knowledgeable concerning the web site technical matters. In your letter of July 13th, you say that you have "spoken directly with technical specialists at both the Los Angeles Times as well as at Washingtonpost.Newsweek Interactive Company ("WPNI") about the existence of raw data ..." Evidently you have located persons more knowledgeable than the persons identified in your initial responses. We would request that you include the names of all of these persons in your amended interrogatory responses.

As to the "raw" web site traffic data maintained by your clients, preparing CD-ROM disks with this data is not the only way to produce this data. We understand that downloading the data onto computer tapes would be much faster and less cumbersome. We requested the raw data in part to reduce the burden on plaintiffs. Rather than requiring Plaintiffs to expend time in producing derivative reports and statistics which they may not normally prepare, we were prepared to produce these reports ourselves. In addition, there is much more information in the raw logs typically generated by web servers than is present in the derivative reports you have so far produced. As stated in our previous conference call, the "Referrer Reports" you produced (for only some of the relevant period) only show the first hit to your clients' web sites referred from my clients' site. Typically, for every such initial "referred" hit there are many other "hits" generated to your clients' web sites. As also discussed in our conference call, the raw logs and "cookie" data will also typically show the period of time a referred visitor spends on your clients' sites, and the entire "click stream" or "click trail" traversed by the visitor. None of this information is obtainable from the derivative reports you have produced. We would again request that you produce all of this raw data for the relevant period. Perhaps you could tell us initially how much data (in gigabytes) we're talking about. We will work with you to reduce the burden on your clients. Simply downloading the logs onto tapes hardly seems "burdensome."

You state in your letter of July 13th that you are willing to produce a "representative sample" of the raw data. We would request that you provide this at your earliest convenience -- including data for some of the same months for which you already produced derived "Referrer Reports." We can discuss the appropriate medium onto which to download the data.

In addition, please provide to us as soon as possible the identity of the "web server" and "operating system" system software, the identity of any "third-party" web traffic software used by your clients, what "cookie" technology is used to track visitors to the site, and the exact names of the logs kept. If your clients use some kind of customized proprietary software to operate their sites, then as previously requested, please produce the software operating manuals and documentation showing the systems' ability to collect and analyze web site traffic data and statistics. All of this information will of course be treated as strictly confidential under the terms of the protective order.

We remain hopeful that the depositions will ultimately be unnecessary. However, please let us know if July 22 and July 23 are acceptable. We would also like to discuss the deposition videoconferencing logistics.

In light of the August 6th filing deadline for the motions for summary judgment, we would appreciate a response at your earliest convenience. Thank you again for your continuing courtesy.

Very truly yours,

Brian L. Buckley
Counsel For Defendants Free Republic, Jim Robinson, and Electronic Rochard