The Facebook, Inc., et al v. ConnectU, Inc., et al
Filed (ECF) Appellees The Facebook, Inc. and Mark Zuckerberg in 08-16745 response opposing motion (,motion to stay the mandate). Date of service: 06/08/2011.  [08-16745, 08-16873] --[COURT UPDATE: Replaced PDF of Response and Declaration (to include correct case numbers.) Spread filing to case number 09-15021. Resent NDA. 06/09/2011 by DB] (EJR)
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FACEBOOK, INC., ET AL
MEMORANDUM AND ORDER
June 3, 2008
Although discovery had not been concluded and - more
specifically - document production had not been completed in this
case,1 on February 8, 2008, the parties agreed among themselves
to suspend proceedings in anticipation of mediation.
that mediation, the parties reported to this Court on February
25, 2008 that they had settled their disputes.
document executed February 23, 2008, entitled "Term Sheet &
The instant case, Civil Action No. 07-10593-DPW is a sequel
to earlier litigation among the parties docketed as Civil Action
No. 04-11923-DPW, which I had dismissed without prejudice to a
new filing. That new filing was accomplished by the immediate
filing of Civil Action No. 07-10593-DPW following my dismissal of
Civil Action No. 04-11923-DPW. The United States Court of
Appeals for the First Circuit has ordered Civil Action No. 0411923-DPW reinstated, ConnectU LLC v. Zuckerberg, 522 F.3d 82
(1st Cir. 2008). Although mandate from the First Circuit has not
issued, perhaps because of the pendency of the settlement dispute
between the parties, for purposes of docketing in this Court, I
have directed that Civil Action No. 04-11923-DPW will be
consolidated with Civil Action No. 07-10593-DPW.
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Settlement Agreement" purported to "settle all disputes between
ConnectU and its related parties, on the one hand and Facebook
and its related parties, on the other hand."
disputes is a case pending in the San Jose division of the United
States District Court for the Northern District of California.
The "Term Sheet & Settlement Agreement" recites that "the parties
stipulate that the San Jose Federal Court shall have jurisdiction
to enforce this agreement."
A dispute has arisen regarding the enforceability of the
purported settlement and the matter has been set down for hearing
before Judge Ware in San Jose on June 23, 2008.
Meanwhile, ConnectU filed a motion for a hearing in this
Court to determine whether documents, which had been the subject
of a simmering discovery dispute at the time the parties agreed
to suspend proceedings in anticipation of mediation, should be
turned over to them, apparently for use in opposing
enforceability of settlement.
The documents had been retrieved by Jeff Parmet, a forensic
expert engaged by ConnectU, who had been authorized to examine
the contents of the hard drives of certain Facebook computers
pursuant to an "Order for Discovery of Computer Memory Devices"
entered in this Court on September 13, 2007.
Under that Order,
Parmet was subject to an obligation not to "discuss with
ConnectU's counsel, or with anyone else, any information obtained
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from the Facebook Hard Drives, except with respect to Produced
Mr. Parmet had, nevertheless, obliquely given
ConnectU's attorneys reason to believe that there were documents,
other than Produced Program Code, on the Facebook hard drives
relevant to the case which had not been disclosed by Facebook in
its document production to ConnectU before the "Term Sheet &
Settlement Agreement" had been executed by the parties.
Acting pursuant to my contempt powers to police enforcement
of orders of this Court, I convened a hearing to explore the
After hearing from the parties in open court, I closed
the proceedings to all but Mr. Parmet and his counsel and
Facebook's counsel in order to develop further information in a
manner that would not compromise the concern, reflected in the
September 13, 2007 Order, that information - except for Produced
Program Code - discovered by Mr. Parmet in his review of Facebook
hard drives not be disclosed to ConnectU's counsel or anyone else
I received from Mr. Parmet a three ring binder of hard
copies of various documents that he contended had not yet been
produced by Facebook when discovery in the case had been stayed.
These documents were retrieved from Facebook hard drive(s) by Mr
He conceded, however, that the documents, while to his
mind relevant to the case, did not contain Produced Program Code
and consequently could not be discussed by him with anyone but
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I have not reviewed the documents but will keep them
under seal pending further developments in the disputes between
ConnectU has requested that I make a preliminary review of
the documents for purposes of determining whether there was some
form of discovery abuse in their nondisclosure by Facebook before
proceedings were suspended.
This proposed review is apparently
sought in an effort to influence the resolution of the question
before Judge Ware whether the settlement should be enforced.
have declined to conduct that review in order to leave matters in
the posture they were in when the "Term Sheet & Settlement
Agreement" was executed.
From all that appears, the parties were
prepared to settle their disputes then, despite the fact that
aspects of discovery in this case - most pertinently for present
purposes, document production - had not been completed and
unresolved discovery issues remained outstanding.
It is for Judge Ware to determine what additional discovery,
if any, is necessary to the resolution of any settlement dispute
between amply represented parties aware that they had not chosen
to complete discovery when executing this "Term Sheet &
I stand ready, of course, to provide
whatever assistance Judge Ware considers helpful.
purposes, I only direct that this Memorandum and any transcript
that is prepared of the hearing before me be transmitted by the
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Clerk to Judge Ware, with any transcript of the in-camera portion
of the hearing noted as being under seal in this Court in
accordance with this Court's September 13, 2007 Order for
Discovery of Computer Memory Devices.
Dated: June 3, 2008
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
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