The Facebook, Inc. v. Connectu, LLC et al

Filing 252

Declaration of Monte M.F. Cooper in Support of Plaintiff's Motion for Partial Summary Judgment re Defendants' Liability Pursuant to California Penal Code Section 502(C) and 15 U.S.C. 7704(A)(1) and 15 U.S.C. 7704(B)(1) 251 filed by Mark Zuckerberg, The Facebook, Inc.. (Attachments: # 1 Exhibit 1 - Notice, # 2 Exhibit 1A, # 3 Exhibit 2 - Notice, # 4 Exhibit 3, # 5 Exhibit 4 - Notice, # 6 Exhibit 5, # 7 Exhibit 6 and 7 - Notice, # 8 Exhibit 8, # 9 Exhibit 9.1, # 10 Exhibit 9.2, # 11 Exhibit 9.3, # 12 Exhibit 9.4, # 13 Exhibit 9.5, # 14 Exhibit 9.6, # 15 Exhibit 9.7, # 16 Exhibit 10, 11, and 12 - Notice, # 17 Exhibit 13, # 18 Exhibit 14, # 19 Exhibit 15, # 20 Exhibit 16, # 21 Exhibit 17, # 22 Exhibit 18, # 23 Exhibit 19, # 24 Exhibit 20, # 25 Exhibit 21, # 26 Exhibit 22, # 27 Exhibit 23, # 28 Exhibit 24, # 29 Exhibit 25, # 30 Exhibit 26, # 31 Exhibit 27, # 32 Exhibit 28-31 - Notice, # 33 Exhibit 31A, # 34 Exhibit 32-34 Notice, # 35 Exhibit 35.1, # 36 Exhibit 35.2, # 37 Exhibit 35.3, # 38 Exhibit 36-38 Notice, # 39 Exhibit 40-43 Notice, # 40 Exhibit 44, # 41 Exhibit 45-48 Notice, # 42 Exhibit 49, # 43 Exhibit 50-55 Notice, # 44 Exhibit 56, # 45 Exhibit 57-59 Notice, # 46 Exhibit 60, # 47 Exhibit 61 Notice, # 48 Exhibit 62, # 49 Exhibit 63-64 Notice, # 50 Exhibit 65, # 51 Exhibit 66)(Related document(s) 251 ) (Chatterjee, I.) (Filed on 1/7/2008) Text modified on 1/8/2008 (bw, COURT STAFF).

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The Facebook, Inc. v. Connectu, LLC et al Doc. 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G. HOPKINS GUY, III (State Bar No. 124811) hopguy@orrick.co m I. NEEL CHATTERJEE (State Bar No. 173985) nchatterjee@orrick.com MONTE COOPER (State Bar No. 196746) mcooper@orrick.co m THERESA A. SUTTON (State Bar No. 211857) tsutton@orrick.com YVONNE P. GREER (State Bar No. 214072) ygreer@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: 650-614-7400 Facsimile: 650-614-7401 Attorneys for Plaintiffs THE FACEBOOK, INC. and MARK ZUCKERBERG UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION THE FACEBOOK, INC. and MARK ZUCKERBERG, Plaint iffs, v. CONNECTU, INC. (formerly known as CONNECTU, LLC), PACIFIC NORTHWEST SOFTWARE, INC., WINSTON WILLIAMS, WAYNE CHANG, and DAVID GUCWA, Defendants. Case No. 5:07-CV-01389-RS DECLARATION OF MONTE M. F. COOPER IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT RE DEFENDANTS' LIABILITY PURSUANT TO CALIFORNIA PENAL CODE SECTION 502(C) AND 15 U.S.C. 7704(A)(1) AND 15 U.S.C. 7704(B)(1) COOPER DECL. ISO OF MOTION FOR SUMMARY JUDGMENT 5:07-CV-01389-RS Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Monte Cooper, declare as follows: 1. I am Of Counsel at the law firm of Orrick, Herrington & Sutcliffe, counsel for The Facebook, Inc., and Mark Zuckerberg. I am an active member in good standing of the Bar of the States of California and Colorado. I make this declaration in support of Plaintiffs' Motion for Partial Summary Judgment Re Defendants' Liability Pursuant to California Penal Code Section 502(C) and 15 U.S.C. 7704(a)(1) and 15 U.S.C. 7704(b)(1). I make this declaration of my own personal knowledge and, if called as a witness, I could and would testify competently to the truth of the matters set forth herein. 2. Attached hereto as Exhibit 1 is a true and correct copy of excerpts from the April 25, 2006, deposition of Mark Zuckerberg. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 3. Attached hereto as Exhibit 1A is a true and correct copy of pages 236-239; 241- 245 of Mark Zuckerberg's April 25, 2006 deposit ion. These pages have been de-designated by Plaintiff. Plaintiffs include these pages also as part of Exhibit 1 for the Court's convenience in reviewing the file. 4. Attached hereto as Exhibit 2 is a true and correct copy of excerpts from the March 1, 2006 deposition of Max Kelly. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 5. Attached hereto as Exhibit 3 is a true and correct copy of the March 24, 2004 Savvy Service Agreement, Bates labeled SAVVY000123 SAVVY000132. 6. Attached hereto as Exhibit 4 is a true and correct copy of the December 22, 2004 TerreNap West Data Center Service Order, Bates labeled NAP00007 NAP00008. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 7. Attached hereto as Exhibit 5 is a true and correct copy of the August 9, 2004 Master Service Agreement contract with Equinix, Bates labeled EQ00007 EQ000026. 8. Attached hereto as Exhibit 6 is a true and correct copy of a May 4, 2004 e-mail from Cameron Winklevoss to Marc M. Pierrat, Subject: "Re: registration," Bates labeled C003990 C003991. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY COOPER DECL. ISO OF MOTION FOR SUMMARY JUDGMENT 5:07-CV-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNDER SEAL] 9. Attached hereto as Exhibit 7 is a true and correct copy of excerpts from the January 16, 2006 deposit ion of Cameron Winklevoss. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 10. Attached hereto as Exhibit 8 is a true and correct copy of Plaint iff and Counterclaim Defendant ConnectU LLC's Responses to Defendant and Counterclaim Plaintiff TheFacebook, Inc.'s First Set of Interrogatories (Nos. 1-17), served in the related Action ConnectU v. Facebook, Case No. 1:04-11923 (DPW), on August 24, 2005. 11. Attached hereto as Exhibit 9 is a true and correct copy of documents Bates labeled GUCWA 0003, GUCWA 0009, GUCWA 0022-25, GUCWA 0032-33, GUCWA 0048-49, GUCWA 0056-60, GUCWA 0071, GUCWA 0073-78, GUCWA 0097-0099, GUCWA 0124, GUCWA 0128, GUCWA 0130, GUCWA 0142, GUCWA 0152-153. 12. Attached hereto as Exhibit 10 is a true and correct copy of excerpts from the January 16, 2006 deposition of Divya Narendra. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 13. Attached hereto as Exhibit 11 is a true and correct copy of excerpts from the January 16, 2006 deposition of ConnectU by Cameron Winklevoss. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 14. Attached hereto as Exhibit 12 is a true and correct copy of excerpts from the January 16, 2006 deposition of Tyler Winklevoss. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 15. Attached hereto as Exhibit 13 is a true and correct copy of the May 24, 2004 Supplemental Declarat ion of Tyler Winklevoss in Support of Defendants' Reply to Opposition to Motion to Quash Service of Complaint and Summons for Lack of Personal Jurisdiction. 16. Attached hereto as Exhibit 14 is a true and correct copy of the May 24, 2004 Supplemental Declarat ion of Cameron Winklevoss in Support of Defendants' Reply to Opposition to Motion to Quash Service of Complaint and Summons for Lack of Personal Jurisdiction. -2COOPER DECL. ISO OF MOTION FOR SUMMARY JUDGMENT 5:07-CV-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. Attached hereto as Exhibit 15 is a true and correct copy of the May 24, 2004 Supplemental Declarat ion of Divya Narendra in Support of Defendants' Reply to Opposition to Motion to Quash Service of Complaint and Summons for Lack of Personal Jurisdiction. 18. Attached hereto as Exhibit 16 is a true and correct copy of the Amended Response of Defendant Cameron Winklevoss to Form Interrogatories, served on April 3, 2006. 19. Attached hereto as Exhibit 17 is a true and correct copy of the Amended Response of Defendant Tyler Winklevoss to Form Interrogatories, served on April 3, 2006. 20. Attached hereto as Exhibit 18 is a true and correct copy of the Amended Response of Defendant Divya Narendra to Form Interrogatories, on April 3, 2006. 21. Attached hereto as Exhibit 19 is a true and correct copy of the Second Amended Response of Defendant ConnectU LLC to Form Interrogatories, on April 3, 2006. 22. Attached hereto as Exhibit 20 is a true and correct copy of a May 3, 2004 e-mail from Cameron Winklevoss to Howard Winklevoss, Subject: "Re: Social Networks," Bates labeled C003865 C003869. 23. Attached hereto as Exhibit 21 is a true and correct copy of excerpts from the 30(b)(6) deposition of iMarc, Inc., taken October 5, 2007. 24. Attached hereto as Exhibit 22 is a true and correct copy of a June 11, 2004 e-mail fro m Marc Pierrat to Fred LeBlanc and Nick Grant, Subject: "Re: mining the facebook," Bates labeled iMarc000798. 25. Attached hereto as Exhibit 23 is a true and correct copy of a June 11, 2004 e-mail from Marc Pierrat to Fred LeBlanc, Dave Tufts and Nick Grant, Subject: "mining the facebook," Bates labeled iMarc000802. 26. Attached hereto as Exhibit 24 is a true and correct copy of a June 11, 2004 e-mail from Nick Grant to Marc Pierrat, Fred LeBlanc and Dave Tufts, Subject: "Re: mining the facebook," Bates labeled iMarc000800. 27. Attached hereto as Exhibit 25 is a true and correct copy of a July 6, 2004 e-mail from `seluraved@gmail.com' to Dave Tufts, Subject: "|iMarc| Personal Mail," Bates labeled iMarc000659. -3COOPER DECL. ISO OF MOTION FOR SUMMARY JUDGMENT 5:07-CV-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28. Attached hereto as Exhibit 26 is a true and correct copy of a July 22, 2004 e-mail from Marc Pierrat to Dave Tufts, Nick Grant and Marc Pierrat, Subject: "RE: FW: Jennifer Star wants you to join Connect," Bates labeled iMarc000629 iMarc000631. 29. Attached hereto as Exhibit 27 is a true and correct copy of a September 14, 2004 e-mail from David Gomel to Dave Tufts and Nils Menten, Subject: "Re: |iMarc| WWW Mail," Bates labeled iMarc000474. 30. Attached hereto as Exhibit 28 is a true and correct copy of excerpts from the October 5, 2006 deposition of Divya Narendra, taken in the ConnectU, LLC v. Zuckerberg et al, Civil Action No. 1:04-cv-11923, United States District Court, District of Massachusetts. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 31. Attached hereto as Exhibit 29 is a true and correct copy of an August 26, 2004 e- mail from Marc Pierrat to Cameron Winklevoss, Bates labeled C007512 C007517. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 32. Attached hereto as Exhibit 30 is a true and correct copy of excerpts from the January 29, 2007 deposition of Pacific Northwest Software. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 33. Attached hereto as Exhibit 31 is a true and correct copy of excerpts from the June 19, 2007 deposition of Winston Williams. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 34. Attached hereto as Exhibit 31A is a true and correct copy of pages 39, 56, 87-89, 99-100; 156-159 of Winston Williams' June 19, 2007 deposition. These pages have been dedesignated as non-confidential by the Defendant. Plaintiffs include these pages also as part of Exhibit 31 for the Court's convenience in reviewing the file. 35. Attached hereto as Exhibit 32 is a true and correct copy of documents Bates labeled PNS01766 PNS01777. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 36. Attached hereto as Exhibit 33 is a true and correct copy of documents Bates labeled C011073 C011082. [CONFIDENTIAL DOCUMENT SUBMITTED -4COOPER DECL. ISO OF MOTION FOR SUMMARY JUDGMENT 5:07-CV-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEPARATELY UNDER SEAL] 37. Attached hereto as Exhibit 34 is a true and correct copy of a May 25, 2005 e-mail from Wayne Chang to John Taves, Bates labeled PNS000015 PNS000016. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 38. Attached hereto as Exhibit 35 is a true and correct copy of excerpts from the August 9, 2005, 30(b)(6) deposition of ConnectU, taken in the related action ConnectU, LLC v. Zuckerberg et al, Civil Action No. 1:04-cv-11923, United States District Court, District of Massachusetts. 39. Attached hereto as Exhibit 36 is a true and correct copy of a document Bates labeled PNS02096. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 40. Attached hereto as Exhibit 37 is a true and correct copy of a document Bates labeled C011010. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 41. Attached hereto as Exhibit 38 is a true and correct copy of the Privacy Statement for `www.ConnectU.com', Bates labeled C000027 and produced by ConnectU as of June 2005. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 42. 43. Exhibit 39 intentionally skipped. Attached hereto as Exhibit 40 is a true and correct copy of an April 21, 2005 e- mail from `jsteven3@nd.edu' to Mark Ruocco, Bates labeled C004512. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 44. Attached hereto as Exhibit 41 is a true and correct copy of documents Bates labeled PNS001377-86, PNS0281451-54, PNS0281495, PNS0281504-14, PNS0281520, PNS0281522-26, PNS0296805-06 and PNS0320945. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 45. Attached hereto as Exhibit 42 is a true and correct copy of a May 10, 2005, e-mail from Winston Williams to Cameron Winklevoss, Tyler Winklevoss, Joel Voss and John Taves, Bates labeled CUCA02972. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY -5COOPER DECL. ISO OF MOTION FOR SUMMARY JUDGMENT 5:07-CV-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNDER SEAL] 46. Attached hereto as Exhibit 43 is a true and correct copy of an April 22, 2005 e- mail from Hanah Kim to Thomas Cheng, Bates labeled CUCA000172. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 47. Attached hereto as Exhibit 44 is a true and correct copy of Defendant Winston Williams' Response to First Set of Interrogatories, served June 18, 2007. 48. Attached hereto as Exhibit 45 is a true and correct copy of February 17, 2005 e- mail from Cameron Winklevoss to Wayne Chang, David Gucwa, John Taves, Winston Williams and Joel Voss, Bates labeled PNS000842 PNS000843. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 49. Attached hereto as Exhibit 46 is a true and correct copy of a February 18, 2005 e- mail from Tyler Winklevoss to Tyler Winklevoss, Cameron Winklevoss, `drttol@gmail.com', Winston Williams, Joel Voss and John Taves, Bates labeled PNS001238 PNS001239. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 50. Attached hereto as Exhibit 47 is a true and correct copy of a February 22, 2005 e- mail from Cameron Winklevoss to Winston Williams, Wayne Chang and David Gucwa, Bates labeled C004243. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 51. Attached hereto as Exhibit 48 is a true and correct copy of a May 25, 2005 e-mail from Wayne Change to John Taves, Bates labeled PNS001334 PNS001340. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 52. Attached hereto as Exhibit 49 is a true and correct copy of the an article titled Business, Casual, by Kevin J. Feeney, dated, Feb. 24, 2005, Bates labeled C006186 C006196. 53. Attached hereto as Exhibit 50 is a true and correct copy of documents Bates labeled CUCA03087 CUCA03090. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 54. Attached hereto as Exhibit 51 is a true and correct copy of a February 16, 2005 e- mail from John Taves to Wayne Chang and Cameron Winklevoss, Bates labeled C008392. -6COOPER DECL. ISO OF MOTION FOR SUMMARY JUDGMENT 5:07-CV-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 55. Attached hereto as Exhibit 52 is a true and correct copy of February 20, 2005 e- mail from Wayne Chang to Winston Williams, Bates labeled C008657. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 56. Attached hereto as Exhibit 53 is a true and correct copy of a February 19, 2005 e- mail from Wayne Chang to David Gucwa, Cameron Winklevoss and Winston Williams, Bates labeled C008662. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 57. Attached hereto as Exhibit 54 is a true and correct copy of a February 19, 2005 e- mail from Cameron Winklevoss to Wayne Chang, Winston Williams and David Gucwa, Bates labeled C010359. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 58. Attached hereto as Exhibit 55 is a true and correct copy of documents Bates labeled C009887 C009896. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 59. Attached hereto as Exhibit 56 is a true and correct copy of the Third Amended Response of Defendant Cameron Winklevoss to Plaintiff's First Set of Special Interrogatories (123), served on April 3, 2006. 60. Attached hereto as Exhibit 57 is a true and correct copy of excerpts from the June 12, 2007 30(b)(6) deposition of Pacific Northwest Software. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 61. Attached hereto as Exhibit 58 is a true and correct copy of February 16, 2005 (12:58 p.m.) e-mail from John Taves to Winston Williams, Bates labeled C008389 C008391. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 62. Attached hereto as Exhibit 59 is a true and correct copy of February 17, 2005 e- mail from Cameron Winklevoss to `drttol@gmail.com', Winston Williams, Tyler Winklevoss, Joel Voss and John Taves, Bates labeled C006537. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] -7COOPER DECL. ISO OF MOTION FOR SUMMARY JUDGMENT 5:07-CV-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 63. Attached hereto as Exhibit 60 is a true and correct copy of Defendant Pacific Northwest Software's Response to First Set of Interrogatories, served on June 11, 2007. 64. Attached hereto as Exhibit 61 is a true and correct copy of a February 6, 2006 e- mail from Winston Williams to Cameron Winklevoss, Bates labeled CUCA02976 CUCA02977. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 65. Attached hereto as Exhibit 62 is a true and correct copy of the Report of the Committee on Commerce, Science and Transportation on S. 877, S. Rep. No. 102, 108th Cong., 1st Sess. (2003). 66. Attached hereto as Exhibit 63 is a true and correct copy of an April 20, 2005 e- mail from `Danny Abad' to `vreoneno@ucdavis.eud', [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 67. Attached hereto as Exhibit 64 is a true and correct copy of an April 20, 2005 e- mail from `JoJo Lagace' to `alchou@ucds.edu', Bates labeled CUCA000210. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL] 68. Attached hereto as Exhibit 65 is a true and correct copy of the January 2, 2008 Declaration of Winston Williams in Response to Court Order Dated December 12, 2007. 69. Attached hereto as Exhibit 66 is a true and correct copy of the December 21, 2007 Declaration of John Taves on Behalf of Pacific Northwest Software, Inc. in Response to Court Order Dated December 12, 2007. I declare under penalty of perjury that the foregoing is true and correct. Executed this 7th day of January 2008, in Boston, Massachusetts. Dated: January 7, 2008 /s/ Monte M. F. Cooper /s/ Monte M.F. Cooper -8- COOPER DECL. ISO OF MOTION FOR SUMMARY JUDGMENT 5:07-CV-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OHS West:260361264.1 CERTIFICATE OF SERVICE I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on January 7, 2008. Dated: January 7, 2008. Respect fully submitted, /s/ I. Neel Chatterjee /s/ I. Neel Chatterjee COOPER DECL. ISO OF MOTION FOR SUMMARY JUDGMENT 5:07-CV-01389-RS