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
Discovery items to ask from fax.com
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:
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:
Supply the name, address, phone and compensation paid in the last 12 months for each:
For each client, list:
Electronic copies of phone records within the period showing:
Contact information (name, address, phone) for:
List all phone numbers and the date and time of the request to be:
A summary by quarter of the:
For each of the 22 million phone numbers in your database, supply:
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
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: