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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
| THE TAUBMAN COMPANY |
| LIMITED PARTNERSHIP, |
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| Plaintiff, | |
| |
| | Civil Action No. 01-72987 |
| v. |
| | District Judge Zatkoff |
| WEBFEATS AND HENRY MISHKOFF, |
 |
Magistrate Judge Komives |
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| Defendants. | |
REPLY MEMORANDUM IN SUPPORT OF
MOTION TO SUPPLEMENT RECORD ON APPEAL
1. Taubman opposes the motion to supplement the record on appeal by including an electronic copy
of the web sites that the Court ordered stricken from the Internet because, according to Taubman, it
is not clear from the motion what has been submitted. In that regard, Taubman notes, and Mishkoff
acknowledges, that the precise content of the web sites evolved over time. However, the affidavits
submitted with the motion make clear precisely what has been submitted. Both web sites were
maintained on Mishkoff's server, and changes were made on the server as the sites changed. Once each
site was enjoined by the Court, the file on the server was left unchanged, but the connection
between that part of the server and the Internet was severed. Consequently, the version of the web
site preserved on the server was the version that existed at the time of the injunction (or, more
precisely, the time that notice was received by telecopier). In other words, the original "shops"
site remained unchanged after October 15, 2001, and the "sucks" sites remained unchanged after
December 7, 2001.
The Mishkoff affidavit, together with the Stele affidavit, create a chain of custody for the
electronic files, showing that Mishkoff copied them from the server onto a CD using the label
December 26, while Stele copied them from the December 26 CD onto several CD's - the proper number
for submission to the Court of Appeals - whose paper labels bear the date January 10. Inasmuch as
the appeals are taken from preliminary injunctions against the maintenance of certain web sites, it
is appropriate that the sites submitted to the Court of Appeals contain the content of each site at
the time of the injunction. The alternative is for the Court of Appeals to receive this case without
any electronic copies of the sites that were enjoined, in which case the appeal could go forward on
the ground that the injunction was based on evidence that was not contained in the record.
Note: Plaintiff complains that the electronic copy of the original "shopping mall" site does not
show the Shirtbiz.com notice that was on the site at one point. As plaintiff is aware, the
Shirtbiz.com notice was removed from the web site immediately after Mishkoff received plaintiff's
complaint dated August 7, 2001, which was, in turn, more than six weeks before plaintiff moved for a
preliminary injunction on September 26, 2001. Indeed, Exhibit C to the motion for a preliminary
injunction, which set forth a printed version of the web site as it existed on September 10, 2001,
does not contain the "Shirtbiz.com" notice, and the papers in support of a preliminary injunction do
not mention that notice as a reason for granting a preliminary injunction. Presumably, the Court
looked at the site at the time of the preliminary injunction proceeding. Thus, the fact that the
Shirtbiz.com notice is not evident in the electronic copy of the site does not undercut the
propriety of submitting the CD's containing the actual electronic record.
2. Plaintiff also objects to defendants' request that the Court make a part of the record the
printed version of the Internet search that it recited in one of its opinions. This is not a case in
which the Court "was making a general reference to the fact that all of these sites are available to
the general Internet market." P. Opp. Mem. 2. The Court not only cited a specific Internet search,
but quoted the search results that it had obtained. The actual documents containing this quotation,
on which the Court relied, should be placed in the record, so that the decisions under appeal will
not be subject to reversal on the ground that they are based on evidence outside the record that the
parties did not have an opportunity to discuss and that the Court of Appeals will be unable to
review.
Respectfully submitted,
Barbara Harvey (P25478)
Suite 3060
Penobscot Building
645 Griswold
Detroit, Michigan 48226
(313) 963-3570
Paul Alan Levy (DC Bar 946400)
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
Attorneys for Defendants
February 26, 2002
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