(main body of reply)

 

Plaintiffs Karen Dudnikov and Michael Meadors, Pursuant to Rules 26, 33, 34 and 36 of the Federal Rules of Civil Procedure, responds to Defendant's First Set of Interrogatories and Requests for Production of Documents as follows: PRELIMINARY STATEMENT AND GENERAL OBJECTIONS A. Plaintiffs object to Defendant MGA Entertainment's ("MGA") "Definitions" and "Instructions" to the extent they could be construed to impose obligations or requirements that exceed those imposed by the Federal Rules of Civil Procedure. Plaintiffs will respond pursuant to the applicable provisions of the Federal Rules of Civil Procedure and other purported instructions, definitions, requirements, or requests will be disregarded. B. Plaintiffs object to MGA's discovery requests to the extent that MGA seeks documents or information already in MGA's possession on the ground that producing such information or documents would be unduly burdensome, redundant and unnecessary. C. Plaintiffs object to each discovery request to the extent that it seeks "all documents." Such requests are inherently vague, unduly burdensome, over-inclusive, over broad, may be duplicative of other requests, and could be read as improperly seeking information protected as a work product and other applicable privileges. D. Plaintiffs object to MGA's First Set of Interrogatories to the extent they seek information, documents, or responses relating to matters that are not raised in the pleadings on the grounds that they are not relevant to this action and not reasonably calculated to lead to the discovery of admissible evidence. E. Plaintiffs object to MGA's First Set of Interrogatories to the extent they use the word "exploit" in an effort to have the Plaintiffs incriminate themselves by answering them. F. Upon reasonable notice, and subject to Plaintiffs' general objections, and further objections below, documents and things responsive to MGA's Defendant's First Set of Interrogatories and Requests for Production of Documents will be produced for inspection any subsequent copying at Plaintiffs expense at a mutually agreeable time at 3463 Maskoke Trail, Hartsel, Colorado, 80449. EXPRESS RESERVATIONS G. No objection or limitation, or lack thereof, set forth in these objections shall be deemed an admission by Plaintiffs as to the existence or nonexistence of documents or information. H. Plaintiffs object to the attempt by Defendant to have documents made available the offices of Keats, McFarland & Wilson LLP in Beverly Hills when the accepted practice is that the documents be made available at the place where they are generally stored and/or maintained. Plaints will not comply with this demand short of a court order. I. Plaintiffs reserve the right to modify and supplement their responses and objections to each request, and the production of any documents pursuant to any of MGA's requests is not a waiver of that right. INTERROGATORIES Karen Dudnikov is requested to answer the following interrogatories: INTERROGATORY NO. 1 List all products bearing the BRATZ PROPERTY that PLAINTIFFS have obtained. Answer to Interrogatory No. 1. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: 1. Bratz Design N Style "Dazzlin' Diary" 2. Bratz Design N Style "Far Out Fashion Tote" INTERROGATORY NO. 2 For each product listed in response to the previous interrogatory, IDENTIFY each source from which PLAINTIFFS obtained each product. Answer to Interrogatory No. 2. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: Target INTERROGATORY NO. 3 List all products manufactured, distributed, advertised, offered for sale, or sold by PLAINTIFFS, including for each product, the type of product and any intellectual property featured on each product. Answer to Interrogatory No. 3. Plaintiffs object to this Interrogatory as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to Interrogatory #3 insofar as it does not identify with reasonable particularity the documents and information MGA seeks and lacks a reasonable time frame. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: The Plaintiffs have offered over five thousand items on eBay since 1998, including but not limited to, hand-made fabric items, collectibles, Nippon porcelain, gasoline generators, furniture, audio tapes, books, cd's, fabric, etc. If the Defendant wishes to be more specific and reasonable in its request the Plaintiffs will attempt to comply. INTERROGATORY NO. 4 For each product sold by PLAINTFFS, list the date of such sale and IDENTIFY the purchaser of such product. Answer to Interrogatory No. 4. Plaintiffs object to this Interrogatory as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to Interrogatory #4 insofar as it does not identify with reasonable particularity the documents and information MGA seeks and lacks a reasonable time frame. Since this request is for confidential business information, Plaintiffs will produce such information only after a suitable confidentiality agreement has been ordered by and entered by the Court in this matter. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: The Plaintiffs have offered over five thousand items on eBay since 1998, including but not limited to, hand-made fabric items, collectibles, Nippon porcelain, gasoline generators, furniture, audio tapes, books, cd's, fabric, etc. If the Defendant wishes to be more specific and reasonable in its request the Plaintiffs will attempt to comply. INTERROGATORY NO. 5 State the total number of each product sold by PLAINTIFFS. Answer to Interrogatory No. 5. Plaintiffs object to this Interrogatory as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to Interrogatory #5 insofar as it does not identify with reasonable particularity the documents and information MGA seeks and lacks a reasonable time frame. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: The Plaintiffs have offered over five thousand items on eBay since 1998, including but not limited to, hand-made fabric items, collectibles, Nippon porcelain, gasoline generators, furniture, audio tapes, books, cd's, fabric, etc. If the Defendant wishes to be more specific and reasonable in its request the Plaintiffs will attempt to comply. INTERROGATORY NO. 6 Describe the nature and manner of all safety and/or quality control steps PLAINTIFFS have taken with respect to PLAINTIFFS' PRODUCTS. Answer to Interrogatory No. 6. Plaintiffs object to this Interrogatory as being irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: Hand-made items are inspected during and after being made. Other items are inspected before being shipped. INTERROGATORY NO. 7 State whether PLAINTIFFS have performed flammability tests on all of PLAINTFFS' PRODUCTS, including the BRATZ HAT. Answer to Interrogatory No. 7. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: Performing flammability tests on collectibles, Nippon porcelain, gasoline generators, furniture, audio tapes, books, cd's, etc, is not practical nor required. Performing a flammability test on the Bratz Hat also would be impractical. Since the fabric used is classified as a Class 1 fabric, the US Government regulations do not require flammability tests. Plaintiffs do not know if MGA performed flammability tests on the applique used. INTERROGATORY NO. 8 State whether PLAINTEFFS performed a flammability test on the BRATZ HAT before listing it for sale on eBay.com Answer to Interrogatory No. 8. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: Performing a flammability test on the Bratz Hat also would be impractical. Since the fabric used is classified as a Class 1 fabric, the US Government regulations do not require flammability tests. Plaintiffs do not know if MGA performed flammability tests on the applique used. INTERROGATORY NO. 9 Describe any and all legal opinions requested and/or received by PLAINTIFFS regarding their rights to offer for sale PLAINTIFFS' PRODUCTS. Answer to Interrogatory No. 9. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: None. INTERROGATORY NO. 10 IDENTIFY all PERSONS to which PLAINTIFFS have offered advice and/or suggestions regarding the manufacture, distribution, sale, offer for sale and/or other exploitation of products bearing the intellectual properties of third parties. Answer to Interrogatory No. 10. Plaintiffs object to the use of the word "exploitation" in as much as it infers an illegal activity. The Plaintiffs have not engaged in any illegal activity. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: The Plaintiffs have not offered advice and/or suggestions to anyone concerning the exploitation of products bearing the intellectual properties of third parties. INTERROGATORY NO. 11 List all web sites on which PLAINTIFFS have made postings regarding the creation, distribution, offer for sale, or sale of products bearing copyrights or trademarks of others. Answer to Interrogatory No. 11. Plaintiffs object to this Interrogatory as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. The information requested in this interrogatory is not relevant to the current proceeding. This information is available to the Defendant using internet search engines. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: The Plaintiffs don't keep track of the individual web sites wherein they have posted or responded to posting concerning the creation, distribution, offer for sale, or sale of products bearing copyrights or trademarks of others. Many posting deal with other items and subjects. The eBay discussion boards are a frequent forum. The Defendant is free to browse those boards anytime. INTERROGATORY NO. 12 State whether there has been any instance of mistake or confusion concerning the source of PLAINTFFS' PRODUCS, including but not limited to instances in which other PERSONS have inquired as to the authenticity or nature of PLAINTFFS' PRODUCTS. Answer to Interrogatory No. 12. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: None. Not one. Zero. Nada. Zilch. INTERROGATORY NO. 13 If the answer to the preceding interrogatory is other than an unqualified negative, IDENTIFY all PERSONS involved in any such instances and all DOCUMENTS referring or relating thereto. Answer to Interrogatory No. 13. See answer to #12 INTERROGATORY NO. 14 Describe all complaints and/or comments PLAINTIFFS have received regarding the quality of PLAINTIFFS' PRODUCTS. Answer to Interrogatory No. 14. Plaintiffs object to this Interrogatory as being unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to Interrogatory #14 insofar as it does not identify with reasonable particularity the documents and information MGA seeks and lacks a reasonable time frame. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: Complaints concerning eBay feedback are available from the eBay web site. The only "complaint" concerning "quality" was from someone who "thought the item was larger" but she got what was advertised. For comments, see http://www.tabberone.com/compliments.html for representative comments. INTERROGATORY NO. 15 State all facts that support PLAINTIFFS' contention, as set forth in paragraph 6 of the COMPLAINT that "defendant has actively engaged in threatening and intimidating persons who have attempted to sell the aforementioned items on eBay" Answer to Interrogatory No. 15. Plaintiffs object to this Interrogatory as being not reasonably calculated to lead to the discovery of admissible evidence. It also calls for the Plaintiffs to make legal conclusions which is not the purpose of interrogatories. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: MGA shut down the auction by Plaintiffs. That was not a passive act nor is it likely it was the first time MGA had terminated an auction concerning the use of their products. This formed our "belief" as stated. INTERROGATORY NO. 16 State all facts that support PLAINTFFS' contention, as set forth in paragraph 8 of the PLAINTFFS' Motion or Summary Judgment or in the Alternative Declaratory Judgment ("MSJ"), that DEFENDANT ordered the termination of PLAINTIFFS' eBay Auction No. 296833612. Answer to Interrogatory No. 16. Plaintiffs object to this Interrogatory as being not reasonably calculated to lead to the discovery of admissible evidence. It also calls for the Plaintiffs to make legal conclusions which is not the purpose of interrogatories. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: Defendant MGA sent to eBay a notice of infringement as required by the VeRO Program and the DMCA. Upon receipt of this notice, eBay is required by federal law to remove the auction(s) named. The notice of infringement is therefore an order to terminate. INTERROGATORY NO. 17 State all facts that support PLAINTFFS' contention, as set forth in paragraph 11 of the Affidavit of Michael Meadors in Support of PLAINTIFFS' Reply to Defendant's Opposition to the MSJ, that PLAINTIFFS used "the appliqué and accessories as obviously intended." Answer to Interrogatory No. 17. Plaintiffs object to this Interrogatory as being not reasonably calculated to lead to the discovery of admissible evidence. It also calls for the Plaintiffs to make legal conclusions which is not the purpose of interrogatories. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: The instructions contained with the Bratz kit in which the applique came, states: "Don't limit yourself!! With the included stylin' accessories, decorate and design just about anything, any way you want!" INTERROGATORY NO. 18 State all facts that support PLAINTIFFS' contention that DEFENDANT did not have a good faith belief that PLAINTIFFS' eBay Auction No. 296833612 infringed DEFENDANT'S rights. Answer to Interrogatory No. 18. Plaintiffs object to this Interrogatory as being not reasonably calculated to lead to the discovery of admissible evidence. It also calls for the Plaintiffs to make legal conclusions which is not the purpose of interrogatories. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: The first sale doctrine in copyright law and the fair use doctrine from trademark law are not new concepts. They are established law and there are numerous case histories supporting what the Plaintiffs did. A reasonably educated lawyer would know there was nothing illegal or infringing. The action taken was calculated to interfere and intimidate. INTERROGATORY NO. 19 State all facts that support PLAINTIFFS' contention, as set forth in paragraph 17 of the Complaint, that DEFENDANT'S alleged statement to eBay that "the article offered in this auction, a fleece hat with a Bratz appliqué on it, was an infringing item" was deliberately false. Answer to Interrogatory No. 19. Plaintiffs object to this Interrogatory as being not reasonably calculated to lead to the discovery of admissible evidence. It also calls for the Plaintiffs to make legal conclusions which is not the purpose of interrogatories. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: See #18. INTERROGATORY NO. 20 State all facts that support PLAINTIFFS' contention, as set forth in paragraph 18 of the Complaint, that PLAINTIFFS, had an existing contract regarding eBay Auction No. 296833612. Answer to Interrogatory No. 20. Plaintiffs object to this Interrogatory as being not reasonably calculated to lead to the discovery of admissible evidence. It also calls for the Plaintiffs to make legal conclusions which is not the purpose of interrogatories. This information is available to MGA through the eBay web site and user agreement. Subject to and without waiving their objections, Plaintiffs respond to this Interrogatory as follows: See eBay user agreement paragraph 4 and 5.2. Also, when some bids on an item, before the bid is accepted, the bidder is cautioned that they are entering into a binding contract. This is a standard part of the bidding process. On the eBay site, there are a number of references to binding contracts. We, Karen Dudnikov and Michael Meadors, hereby declare and state: 1. The attached answers and documents are to the best of our knowledge complete and truthful. Pursuant to 28 U.S.C. §1746, we declare under penalty of perjury that all of the foregoing is true and correct. Respectfully submitted this 21st Day of July, 2004.   Karen Dudnikov Michael Meadors 3463 Maskoke Trail P.O. Box 87 Hartsel, Colorado 80449 PRO SE PLAINTIFFS 303-913-4702 303-913-6075     (end of complaint)