Back at the district court, e360 was left with the task of proving up its damages, but it suffered a slew of discovery foibles. e360's principal failed to appear for his deposition as scheduled and failed to respond to Spamhaus's interrogatory requests. Spamhaus moved to dismiss on the basis of e360's discovery failures, and the trial court gave e360 another opportunity to address the discovery issues. e360 supplemented its previous responses but added a slew of new witnesses. It also increased its damages estimate from $11.7 million to a "whopping $135 million." It also sought to reopen discovery. The trial court said no dice and struck the new witnesses listed by e360 and struck e360's requested damage award to the extent it exceeded the initial $11.7 million request.

"I have never seen such an incompetent presentation of a damages case," Posner said. "It's not only incompetent, it's grotesque. You've got damages jumping around from $11 million to $130 million to $122 million to $33 million. In fact, the damages are probably zero."

By failing to comply with its basic discovery obligations, a party can snatch defeat from the jaws of certain victory. After our earlier remand, all e360 needed to do was provide a reasonable estimate of the harm it suffered from Spamhaus’s conduct. Rather than do so, however, e360 engaged in a pattern of delay that ultimately cost it the testimony of all but one witness with any personal knowledge of its damages. That lone witness lost all credibility when he painted a wildly unrealistic picture of e360’s losses. Having squandered its opportunity to present its case, e360 must content itself with nominal damages on each of its claims, and nothing more. We VACATE the judgment of the district court and REMAND this matter with instructions to enter judgment for the plaintiffs in the amount of three dollars.

Despite litigating the case vigorously up to this point, when it came to damages, e360 seemed to muster a lot less energy. According to the court, e360 was "slow to provide information requested by Spamhaus . . . [and] missed several [d]eadlines." I'll spare readers a detailed discussion on damages, but the court's take can be summed up as follows:

The unreliability of [e360's] approaches is unmistakably demonstrated by the profound differences in claimed damages profferred at various points during these proceedings. Finally, it strains credulity that a company that made only a fraction of the profits [e360] asks for over the course of its five-year lifespan would have garnered profits in the amounts [e360] set out in [its] testimony or documentary evidence. The profit and loss statement [e360 provided] sets out the company's overall profits at $332,000. . . . .

At the time of default judgment, the damages claimed were $11,715,000. During discovery, Exhibit 5 was proffered reflecting damages of $135,173,577. At trial, proffered Exhibit 5(a) showed damages of $122,271,346. During final argument, the claimed amount was $30,000,000.

Ironically, through litigating this dispute, e360 caused to be memorialized in a court order, facts about its email practices (and the email marketing industry in general) that I'm guessing it would prefer not be in the public eye. Two facts jumped out at me from the order. First, e360 sent out 6.6 billion (!) emails through the course of its five year existence. Second, there were some familiar faces among the list of its customers: SmartBargains and Optinbig.

Plaintiff e360Insight, LLC is a marketer. It refers to itself as an Internet marketing company. Some, perhaps even a majority of people in this country, would call it a spammer.