Letter from Brian Buckley to Rex Heinke.
Re: discovery in L.A. Times v. Free Republic.
Date: circa July 25, 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:

We are in receipt of your letter of July 22, 1999.

Deposition Dates

We appreciate your providing us with some additional information, including the identity of the web server software. However, the information is still insufficient to eliminate the need for the depositions and it would be premature at this time to take any of the noticed depositions off calendar. You have indicated that some of the deponents are unavailable on July 29th and July 30th. Please provide us at your earliest convenience with available dates for all of the deponents.

Scope of Propounded Discovery

We must respond to the rather unfair characterization in your letter that we have made "ever-escalating demands for detailed factual information not previously requested in formal discovery." This is incorrect. Every fact and document we have requested is fully and squarely encompassed within the definitions and descriptions of the propounded discovery. We are not certain about exactly what documents and information you reference in making this statement. However, if you refer to the identity of plaintiffs' web server and operating system software, this was expressly requested in the propounded discovery. If you refer to information about what "cookie" technology is implemented by Plaintiffs on their web servers, this is fully within the scope of the definitions of WEB SITE TRAFFIC STATISTICS AND REPORTS and RELATED TO in the propounded discovery. The raw data logs were expressly requested in the propounded discovery.

Had Plaintiffs made reasonable inquiry with the appropriate employees at the outset, all of this information would have, and should have, been provided in Plaintiffs' initial responses and production. Defendants have been very patient in assisting Plaintiffs in their attempts to locate responsive information and documents. Plaintiffs have asked whether Defendants would accept alternatives to the taking of the depositions of their technical employees. Defendants have expressed the hope that the noticed depositions would be unnecessary. In an effort to achieve this, Plaintiffs' have asked for more specificity about the documents we seek in the propounded discovery, and Defendants have provided that information to Plaintiffs in an effort to eliminate the need for the depositions. Defendants had no duty to do this. For Plaintiffs now to complain about such additional information seems rather unfair and less than accurate. The web server traffic data, the reports and summaries derived therefrom, and the identity and capabilities of the software that collects it, are fully discoverable and relevant to the economic loss factor to be considered under the "fair use" doctrine.

Plaintiffs' Amended Discovery Responses

In your letter of July 16th, you state certain facts related to web site traffic data collected by your clients' web sites which are responsive to some of our propounded discovery. However, as discussed previously, please confirm that all these same facts will also be included in Plaintiffs' verified interrogatory responses.

Confidentiality Protective Order

Your concerns about the confidentiality of the information you are providing are well taken, and shared by Defendants. Any information you identify as "confidential" in your letters will be treated as strictly confidential and as covered by the stipulated protective order. It may be desirable, as we have previously discussed, to submit to the Court a revised protective order that will expressly include confidential information exchanged in correspondence and that will contain a procedure for handling the filing of confidential information and documents with the Court.

With respect to confidential information provided in discovery responses, perhaps we can agree that if the word "confidential" appears at the beginning of a particular response, then the information contained in that particular response will be treated as confidential within the scope of the protective order. I would be happy to discuss this with you further.

Privilege Log

With respect to privileged communications directly between your firm and your clients, it will be unnecessary, as you suggest, to list the individual communications in the privilege log. You can list them in a blanket category as Defendants did. However, we do request that you provide the privilege log as promised.

With respect to responsive privileged documents and communications not directly between you and your clients, we would request that you do itemize each communication or document and state the basis for the withholding. Consider, for example, your responses to Interrogatory Nos. 14 and 15, and production Request Nos. 20 and 21. If there are responsive documents and information which you claim as privileged related to communications with Terry Lenzner or Debevoise & Plimpton, please itemize these and state the basis for the withholding. Please do the same with other categories of documents and information which are not direct communications between your firm and your clients.

Web Site Traffic Data

Your letter of July 22nd makes no reference to the "representative sample" of the raw web site traffic logs you agreed to provide. We again request that you provide this at your earliest convenience. Presumably you will be providing the [REDACTED] logs for the representative period. Please include in this representative sample all [REDACTED] logs for the period December 1, 1998, through January 1, 1998 (which is one of the periods for which you have already provided a "Referrer Report.") in the representative months you include. We would request that you provide these representative samples on CD-ROMs in order that it will be readily accessible and not cause any further delay. If there is any question about the format or medium in which this data is to be provided, please call me to discuss.

As to the balance of the web server raw traffic data, you state that the Los Angeles Times currently estimates that it has approximately [REDACTED] gigabytes of compressed raw data [REDACTED]. You state that the Los Angeles Times "has neither the manpower or the space on its computer systems to restore and backup all of these [REDACTED]. This objection would be more understandable were it not the Los Angeles Times that brought this action. However, that aside, please answer the following: (1) Precisely what form of data compression is used to store this data? (the exact compression method and version number); (2) Why would an additional backup be necessary to produce this data?; and (3) Why can't your client simply copy the [REDACTED] and produce them if we are willing to do the decompression? All this data would, of course, be strictly confidential under the terms of the protective order.

You have only provided the log format, an estimate of the data gigabytes, and the form of data storage, for the Los Angeles Times site. Please provide the same information for the Washington Post site. Does the Washington Post web site also use [REDACTED] format? What form is the Washington Post data stored? In addition, have you located a person more knowledgeable at the Washington Post web site regarding these matters?

Operating System Identity

You have refused to provide the identity of the Operating Systems under which the Web Server software runs in absence of a Court Order. Defendants will make further inquiry concerning this matter to determine whether we are willing to withdraw this request or whether we will seek resolution by the Court.

Web Site "Cookie" Traffic Data

In absence of a Court Order, you have refused to provide the "cookie" data apparently collected on Plaintiffs' web sites using [REDACTED] software. Defendants will make further inquiry concerning this matter to determine whether we are willing to withdraw this request or whether we will seek resolution by the Court. However, in order to make this determination, we will need additional information provided under oath from your clients. In representing that there is no connection between the web server logs and the [REDACTED] data collected, are you stating that there is no way under your clients' system to connect a particular "cookie" placed by [REDACTED] with a user referred from the freerepublic.com site? For example, even if the [REDACTED] software doesn't make this association directly, does the [REDACTED] software record the date and time of "hits" to advertising and banners? Or does [REDACTED] only produce summary statistics as configured on your web servers? Please provide this information as soon as possible so we can make a determination concerning whether to pursue this data.

Web Site "Referrer Reports"

You have to date produced monthly web site Referrer Reports only for the Los Angeles Times' web site, and only for certain months during the relevant period. We will need to know answers to the following questions under oath from your clients:

(1) Were referrer reports generated automatically each month?

(2) What months were they generated?

(3) How many formats of Referrer Reports were generated? (E.g., top 5000 URL format)

(4) Were Referrer Reports generated which were not produced to us? If so, will they be produced? If not, why not?

(5) What employee or employees are responsible for preparing the Referrer Reports?

(6) Is it correct that the hits listed in the monthly Referrer Reports consist of only the first hit to your site and do not include subsequent hits generated during that user's visit to the site?

We will need all of these questions also answered, under oath, for the Washington Post site. If you would like to initially provide this information by letter, it would be appreciated and would assist in our determination as to whether the depositions will go forward.

We will continue to work with you concerning this matters. If there are any questions concerning the foregoing, please contact us. We stand ready and available to discuss them.

Very truly yours,

Brian L. Buckley

Counsel for Free Republic, Jim Robinson, and Electronic Orchard