TaubmanSucks.com
WillowBendSucks.com
WillowBendMallSucks.com
ShopsAtWillowBendSucks.com
TheShopsAtWillowBendSucks.com
GiffordKrassGrohSprinkleSucks.com

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Act 67: We Reply to Their Opposition

Here's how we replied to their opposition to our motion to supplement the record.



UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE TAUBMAN COMPANY
LIMITED PARTNERSHIP,
 
Plaintiff, 
 
 Civil Action No. 01-72987
v.
 District Judge Zatkoff
WEBFEATS AND HENRY MISHKOFF, Magistrate Judge Komives
 
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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