Based on what happened in the Los Angeles case (Kevin Tripi), fax.com will fight discovery and not comply with the original discovery request. When asked for information such as a list of phone numbers, they will only supply the number of phone numbers and not the specific numbers. Or when asked for a customer list, they will supply the name and not address or phone. So they will not comply with the discovery request and will withhold information until sanctioned by a judge. They will basically fight the discovery process as much as legally possible and drag their heels as much as legally possible to make the legal process move as slow as possible.
We should subpoena their phone records directly from the phone company/Cox Communications and make a motion to preserve records. They had to get an injunction to preserve records in the South Carolina lawsuit (per Robert Biggerstaff, but I'm not sure how extensive it is).
Phone records (fax.com and the company) are most important. Second most important is to preserve the "permission slips" and get a copy as evidence so slips cannot be "manufactured".
Subpoena from the phone company (e.g., Cox Communications and Global Crossing for fax.com)
All outgoing calls from all phone numbers owned by fax.com All incoming calls to the 800 removal numbers All incoming calls to any toll-free response numbers owned by fax.com
Discovery items to ask from fax.com
All discovery requests cover the period from Jan 1, 2000 to the present.
Long lists (more than a page) should be delivered in machine readable format whenever possible, e.g., CD-ROM
Copies of the CD ROMs of phone bills from Cox and Global Crossing, and any other supplier of telecommunications lines
List of employees, job title, and phone number
List of each customer, including customer name, customer contact, billing history, sales person, and numbers dialed.
List of all phone numbers, including toll-free numbers, owned by fax.com and what they were used for:
- Outgoing faxes
- Incoming faxes
- Fax list removal
- Customer service
Have you ever used a "war dialer" to discover fax numbers? When did this practice begin? When did it end? How many numbers were added this way? Have the numbers that were added this way all been removed from the database?
Explain the source of the numbers in the fax.com database, i.e., explain how you establish a business relationship with 22 million people.
Since fax.com can only fax a page to a recipient that has a pre-existing business relationship with the client, why on your website do you talk about your proprietary database and offer to merge your database with the clients?
In short, do you ever send faxes out on behalf of the client using phone numbers that the client did not supply to you?
List for each past and current employee:
- Indicate whether still employed
- Job function
- Home/work phone numbers
Supply the name, address, phone and compensation paid in the last 12 months for each:
- Business Opportunity Partner who does faxing on your behalf
- Registered Agent (e.g., independent sales agents)
- Independent Reseller (e.g., handles the entire sale)
For each client, list:
- The phone numbers that were called on behalf of that client
- The number of fax numbers supplied to fax.com by the client
- For each campaign (unique page), give us the number of faxes sent out
- A copy of the each campaign(s) that was sent out
- The total revenue received from that client
Electronic copies of phone records within the period showing:
- All outgoing calls from FAX capable equipment owned or controlled by fax.com
- All incoming calls to offer response numbers or numbers to add/remove name from database
Contact information (name, address, phone) for:
- Anyone you bought a list of fax numbers from
- Anyone you sold a list of fax numbers to
List all phone numbers and the date and time of the request to be:
- Added to the fax.com database
- Removed from the fax.com database
A summary by quarter of the:
- Total number of people who have called in to be added to the database
- Total number of people who have called in to be removed from the database
For each of the 22 million phone numbers in your database, supply:
- The contact person with whom the business relationship exists
- The date and time the business relationship was established
- With which client(s) the business relationship was established
- The voice phone number of the contact
- A brief description of how the relationship was established
- The person at either fax.com and/or the client that has the relationship with this number
- Any physical or computer records to substantiate the relationship contact
- Copy of any phone records to substantiate the contact
If it is not possible to supply this, then we will mutually agree on a 250 name randomly selected (by you under our supervision using a mutually agreeable process or selected by the judge) statistical sample and supervise the process by which you obtain this information.
The size of the fax number database at the end of each quarter
An explanation of how you grow the database
A copy of the most recent business plan that has been sent to external investors
Any internal business plans
- P&L for each quarter
- Current balance sheet
- List of investors and amount investors
- Capitalization table
Maximum outgoing fax capacity on a daily basis
Average number of faxes transmitted each quarter
List of outstanding litigation including copies of all lawsuits currently filed against them
It will be very interesting when we depose individual employees at fax.com to:
- Confirm the details of our understanding of their operation
- The information from discovery
- Explain how the lists are derived