Miller v. Facebook, Inc. et al

Filing 75

Declaration of Julio Avalos in Support of 74 Reply Memorandum re Motion to Dismiss Pursuant to Fed.R.Civ.P. 41(b) filed byFacebook, Inc.. (Attachments: # 1 Exhibit A)(Related document(s) 74 ) (Gray, Thomas) (Filed on 9/2/2010)

Miller v. Facebook, Inc. et al

Doc. 75 Att. 1

EXHIBIT A

Dockets.Justia.com

Pages 1 - 30 United States District Court Northern District of California Before The Honorable William Alsup Daniel M. Miller, ) ) Plaintiff, ) ) vs. ) ) Facebook, Incorporated, ) et al., ) ) Defendant. ) ____________________________)

No. C10-264 WHA

San Francisco, California Thursday, May 27, 2010

Reporter's Transcript Of Proceedings Appearances: For Plaintiff: By: For Defendant: By: The Law Office of D. Gill Sperlein 584 Castro Street, Suite 879 San Francisco, California 94114 D. Gill Sperlein, Esquire Orrick, Herrington & Sutcliffe 1000 Marsh Road Menlo Park, California 94025 Indra Neel Chatterjee, Esquire

Reported By:

Sahar McVickar, RPR, CSR No. 12963 Official Reporter, U.S. District Court For the Northern District of California (Computerized Transcription By Eclipse)

Sahar McVickar, C.S.R. No. 12963, RPR Official Court Reporter, U.S. District Court [phone]

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Thursday, May 27, 2010 PROCEEDINGS THE COURT:

8:00 A.M.

Daniel Miller versus Facebook and

Mr. Yeo; please call that matter. THE CLERK: Okay.

Civil 10-264, Daniel Miller versus Facebook. Counsel, please state your appearances for the record. MR. SPERLEIN: Good morning, Your Honor.

Gill Sperlein for plaintiff, Daniel Miller. THE COURT: Okay, good morning. Good morning, Your Honor.

MR. CHATTERJEE:

Neel Chatterjee for Facebook. THE COURT: Good morning.

All right, we got a motion here for -- we have two things, a CMC, and we have a motion to amend the complaint. I'm going to try to cover both of these, but I want to give each of you on the motion an opportunity to make your most important points. And I also need to ask the plaintiff why you have not served, or have you served the individual Yeo Wei -- how do you say his last name? MR. SPERLEIN: mine. THE COURT: Well, have you served this fellow? Your Honor, your guess is as good as So

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MR. SPERLEIN: THE COURT:

We have not.

Well, why not? May I step up?

MR. SPERLEIN: THE COURT:

Yes. Your Honor. I'm local counsel, and I

MR. SPERLEIN:

asked my colleagues in Georgia to respond, you know, I knew that you would be asking that. They have taken measures to find him. When they

first -- when this case first started, apparently he was a senior at Cornell University, but, has subsequently moved. Plaintiff's counsel has hired an investigator. They have done

Internet searches trying to locate him, and they haven't had any luck. I think there are ways to track him down, but it's going to be through discovery, either on Facebook or on the hosting company that is currently hosting the infringing game that is at the center of this case. At our last meeting before you, you instructed plaintiff's counsel to make a motion for additional time to serve and explain the steps that they had taken. Subsequent to

that, you dismissed the entire complaint, so there was really no operative complaint. Obviously, if Facebook is dismissed from this matter, they would re-file. So if he was dismissed with

prejudice or without prejudice, they would probably re-file

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back in Georgia. that.

So they just thought it was premature for

I do have a declaration stating the steps that my co-counsel took to -THE COURT: May I have that? Yes, Your Honor.

MR. SPERLEIN:

Your Honor, this was just forwarded to defense counsel this morning. THE COURT: All right. MR. SPERLEIN: the United States. Also, we are not even sure he is in One is enough.

So if he is outside the United States, of

course, the time limit would not have been applicable and would not have been missed. THE COURT: was at Cornell. MR. SPERLEIN: Well, at one point. We don't know where he is. You say he

We'll track him down. THE COURT: Okay, what would you like to say, if

anything, on the motion to dismiss? MR. SPERLEIN: I would like to say a few things.

Let me start off by saying in defense counsel's opposition, they mention that the complaint, or the proposed second amended complaint mentions a couple of terms that aren't explained. And I think for the benefit of the Court, if you

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will indulge me, I'll explain some of those terms.

And I think

you'll see that with an understanding of those terms, it's pretty clear that there is a valid claim for contributory infringement. The way this infringing game was developed was using something called the API, it's application, programming, interface. It's a set of tools that Facebook gives to folks

that want to create applications that work on the Facebook site. And what's really important here is that these tools Their

allow you to integrate into the Facebook experience.

whole experience is about this social networking -- I don't know if you have been on Facebook or are familiar with the concept, but everybody has their friends listed and you connect with different people, and whatnot. So when you take their tools and create an application, it's not designed to make a -- an application that acts independently and sits on some server somewhere else, it's specifically designed to interface with Facebook. The canvas page that's referenced in the proposed second amended complaint, you can kind of think of it as a grid. And there is a link there that goes to where the

application resides on a server that's not Facebook's, belongs to Yeo, or is either leased or somehow Yeo has access to. the program is there, but it interfaces with Facebook. So

So even

though the link is going to pick up on this application, the

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application itself picks up information from Facebook, namely, access to the millions of users that Facebook has. And they are designed so that -- it's difficult -let me explain what's happened. So there is a page, and this a link to the thing, and interacting with all the information that is on Facebook servers. Last time we were here, we mentioned that there was a And what

change at some point after the lawsuit was filed.

happened was, Facebook or Yeo, I'm not sure, it's hard for us to tell by just looking at the site, but somehow that page that linked over, they moved the whole page off of Facebook's server, and now they put it on Yeo's server. So at that point the page is there, and there is just a link from -- from Facebook over to the page, and the page fills in and you play the game, or whatnot. But it's

still going back to Facebook to get all the information. And then recently, I guess within the last -THE COURT: information? MR. SPERLEIN: Well, for example -- and again, Going back there to get what

because in the last week or so, since the last time we've met, they have cut it off entirely, so now it doesn't act the same way it used to, so I can't -- when I went in personally, I couldn't evaluate what was going on except for I could speculate as to some things. But in speaking with Mr. Miller,

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who designed the game, a good example is when someone starts playing this application and they are logged into their Facebook account, the application no longer does this, but used to, send a notice to all of their friends saying your friend, Joe, is playing this game, why don't you play. And then at

other times the game would keep statistics of all your friends and their high scores. So you would see this. And the whole

idea is synergy and get as many people to play as possible. And it worked. Facebook profited from that. How did they profit? I don't know, it's advertising, These companies that have --

THE COURT:

MR. SPERLEIN: mostly.

It's all about traffic.

I'm not sure whether what their -- I know it's in the top 100 most popular websites. So you have that much traffic coming, And that is

you have advertisings, advertisement all around. where they earn the revenue.

And it's possible, through massive amounts of traffic, each of those -- that advertising dollars only go up when they have lots and lots of traffic. So they are using

Danny's game to get all this traffic, and they are making the game work by providing all the users. So I think it's pretty -THE COURT: So how many -- are there records

somewhere that would tell us prior to the change that you say occurred how many people actually played this game on the --

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not the website -- Facebook? MR. SPERLEIN: THE COURT: Absolutely.

What is the answer to that? Facebook. I mean, and that's the

MR. SPERLEIN: whole idea.

And that's the problem with -- you know, when you If we

are in an online environment like this, it concerns me:

get too exacting a standard on facts on the pleadings -- I'm not saying we can just make bold accusations, but there has to be an understanding that on the online environment, these companies that, you know, may be responsible for the infringing activity have a lot of the information that's required to prove the claims in their control, uniquely. Now I don't know if defendant or if plaintiffs have any additional records of what it was. I know that when I

spoke with Mr. Miller, he did say that at one point it was one of the top ten applications. And I know from reading about

Facebook they get about a hundred new applications loaded onto their system a day. applications. So there is tens of thousands of these

And Danny's was in the top ten, so significant. Sounds like thousands and thousands of

THE COURT: applications.

MR. SPERLEIN: THE COURT: in the top ten? MR. SPERLEIN:

Yes, that's correct, Your Honor.

And for a while, you are saying his was

Yes, sir.

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THE COURT:

How would he know that? I'm sorry, I don't know. I would

MR. SPERLEIN:

imagine that, you know, I don't know if there is some sort of interface where they talk with their developers. That's what

they call the folks that develop the applications where they provide those statistics. some -THE COURT: But your client did not -- your client I would imagine there is, you know,

did not give Facebook the game, did it? MR. SPERLEIN: THE COURT: No, that's right, Your Honor.

So it was the -It was Mr. -So it would be the

MR. SPERLEIN: THE COURT:

The guy at Cornell.

guy at Cornell who was in the top ten, right? MR. SPERLEIN: Well, yes, the infringing game, which

was exactly the same as his. THE COURT: The code is the same? They are exactly the same except for My client didn't have

MR. SPERLEIN:

all this interaction with Facebook.

that, my client just operated his on a website that people could go to and link to and play the game, if they wanted to. I don't know if he had intentions of working with Facebook to develop it or not, but certainly, when Mr. Yeo made that infringing copy and got together with Facebook, they took it to that level.

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THE COURT:

So your client, does he have a copyright

on the code as well as the name? MR. SPERLEIN: THE COURT: allegedly copied? MR. SPERLEIN: THE COURT: No, Your Honor, he did not. He has a copyright on the code.

Did he have one at the time it was

I guess that doesn't matter. It would matter for statutory damages

MR. SPERLEIN:

and attorney's fees but not for liability. THE COURT: All right. So you're saying -- so the

guy at Cornell somehow downloaded the code when he was playing the game from your website, Mr. Miller's website, and then wrote his own game but used exactly the same code and then gave it to Facebook on a face page -- on a page, and it became the top ten? MR. SPERLEIN: I might quibble with some of that. I

don't know for certain how he accessed the code or how he did that, I think that's, you know, something, again, would take place in discovery with expert witnesses and computer engineers that would know a lot more about how the game is developed than I could tell you. THE COURT: So how much money could be involved?

Can't be very much money at stake here. MR. SPERLEIN: THE COURT: Oh, Your Honor, I mean, Facebook -What would it

A few hundred dollars?

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be? MR. SPERLEIN: all due respect -THE COURT: I don't know what these things are -I have no idea. And, you know, with

I'm just asking, sounds like something somebody is in the back room doing this -- people put things on the Internet all the time, and they go nowhere. So what is your damage claim? characterize it? MR. SPERLEIN: Well, I think, once more, this is How How would you

factual issues that are going to take place in discovery. many times was this game accessed? around the game when that happened? What advertisement was

What's the rate that those

advertisers get every time someone sees them or if they click through or they actually buy something? just very fact intensive. in discovery. Obviously, my colleagues who took this case on thinks that it's a great deal, and I think so, too. In a top All of that stuff is

That is going to have to come forth

ten game on Facebook, with -- you know, I can't tell you how many users they have or advertisers, but they are a force. THE COURT: Well, okay.

You got more to say? MR. SPERLEIN: THE COURT: Just a little bit.

All right, go ahead.

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MR. SPERLEIN:

They raise a lot of issues in their

opposition, primarily trying to attack that idea that any direct infringement took place; your earlier order acknowledged that Yeo was a direct infringer. I'm not going to go into

detail and drill down as to why I think each of their attacks -- as to whether there was direct infringement or not. I don't think that they are valid, but I think the fact that you have already said in your order that direct infringement has been established, I think we are really here to figure out why Facebook is in this case and how they are contributorily liable. And, you know, they got a letter that said this game is infringed, and they continued to allow the program to operate. base. They continued to let Yeo profit from their user

And they have continued to profit from the game,

apparently. THE COURT: All right.

I'll give you a moment or two to respond to Mr. Chatterjee, but why don't you have a seat and let's hear from the other side. MR. SPERLEIN: Thank you, Your Honor. Good morning, Your Honor.

MR. CHATTERJEE: THE COURT:

Good morning. I was hoping to bring one of my

MR. CHATTERJEE:

fourth-year associates, the same one who was here last time,

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but fortunately for him, his wife had a baby. THE COURT: Congratulations. So you'll be seeing him again, but

MR. CHATTERJEE: not today. THE COURT:

All right. Let me talk a little bit about this

MR. CHATTERJEE: case if I can.

I'll probably toggle a little bit between the

case management issues and the motion for leave to file an amended complaint because I do think at some level they are related and there is some degree of overlap. The way this case started was Mr. Miller decided to sue Facebook and Yeo in Georgia. That was a long time ago,

maybe as much as nine months ago, I don't know exactly, but it was quite a while ago. The plaintiff, as far as I know, and I got the declaration this morning when I walked into court today, despite Your Honor's request that they file a motion 60 days ago at the hearing. him. As far as I know, they did nothing to find

They say he was in Cornell; there is no allegation as to

whether he was in the U.S. or outside the U.S. And then we filed a motion to transfer because the terms of use that their client signed onto said that the case should be handled here. We successfully transferred the case. That's granted

Then we file a motion to dismiss.

because Your Honor found that the allegations were somewhat

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spartan, and you said that they could seek leave to file an amendment. We then opposed their motion. And we raised what we

believed to be pretty serious challenges to what they were proposing in their complaint. THE COURT: They don't file a reply.

They what? They did not file a reply to our

MR. CHATTERJEE: opposition.

All of the things that Mr. Sperlein says may or

may not be accurate, none of those things, by the way, are really in their complaint. But my view, Your Honor, is because

they didn't respond to any of the key issues and not even the argument, they have waived their objection on the issues that we have raised. Now, I'm happy to walk through the issues, but I'm concerned about the fact that they are bringing Facebook into this Court. They sued us in a jurisdiction that they never

agreed to, that they don't file reply briefs, that they don't diligently go forward and go after the person that they really have an issue with, Mr. Yeo, and haven't really diligently gone forward and found him, yet they are trying to pull us into this action. THE COURT: show where he is? MR. CHATTERJEE: No. Every piece of information Well, do you have records that would

that we have, or nearly every piece, I believe, we have given

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to them. directly.

In fact, we believe that they E-mailed Mr. Yeo

THE COURT:

They what? That they E-mailed Mr. Yeo

MR. CHATTERJEE: directly.

The information on how to contact him is available

on our website. They kind of play this -- a little bit of confusion, Your Honor. And Your Honor asked two important questions that The first one is they say Chain Reaction, Mr. Miller's game

I want to address.

which is -- I'm sorry, not Chain Reaction. was a top-ten game.

For purposes of anything here, that point

is virtually irrelevant. The question is, and Your Honor asked it correctly, was the defendant Yeo's game a top-ten game? Because And as

otherwise, how do you even assess what the damage is?

far as I can tell, they have no indication as to whether or not it was popular or not popular. THE COURT: But wait. He -- that's not true.

Mr. -- I'm sorry. MR. SPERLEIN: THE COURT: Sperlein. Sperlein said specifically

Sperlein.

that the infringing game was in the top ten. MR. CHATTERJEE: He did not, Your Honor. He kept

talking -- as far as I understood what he said here, and this is not in the pleadings, so I don't know if I understood it

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incorrectly, he was talking about the plaintiff's game, not the defendant's game. The second question that Your Honor asked was about code. There is no allegation, none in this complaint about There is no evidence that Mr. Yeo had access to There is no allegation that he copied the code.

code theft. that code.

There is no allegation that he reverse engineered the code. There is nothing. If their registration is about code, and Exhibit A to the Sutton declaration suggests that that is what they copyrighted, they are not alleging infringement properly. they provided no facts of direct infringement of the code. It's important to note, Your Honor, that in that registration they didn't register this as an audio visual work, they didn't do that. Now, as to the complaint itself -THE COURT: If they had registered it as an audio And

visual work, what is the significance of that? MR. CHATTERJEE: Well, Your Honor, in their

complaint what they appear to be saying is that the games look the same. And if they are talking about the way something Because the exclusive rights

looks, it's an audio visual work.

under the Copyright Act are different, depending on the type of work you register. THE COURT: Okay. All right, so the look and feel

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has to be audio visual. MR. CHATTERJEE: Correct, Your Honor, but it's more

than that, because once you go past the look and feel issue in an audio visual work, you then have to look at what exclusive rights are implicated. And there are three exclusive rights And this is

that the plaintiff alleges are implicated here. set forth in our opposition brief.

The first one is the reproduction right.

The

reproduction right is kind of what the right in a copy is, it's making a copy of something. There is no allegation that

Facebook encouraged infringement of a reproduction right because the game resides on a website separate from us that they developed without any of our knowledge of the Chain Reaction game. There is no allegation that we had any notice

before that game was created. The second right that they allege is invoked is the distribution right. The distribution right requires Because this

distribution of copies of an infringing article.

is a game residing on a website, there are not copies distributed. It's really that simple. It's not a case of

selling unauthorized CDs out of the back of their truck, instead, you are going to a website and you are interacting with it. THE COURT: When you do that, when you go to that

website, does the code for the game get shipped to the player's

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computer, or is the code running only on the host computer? MR. CHATTERJEE: technology there. I'm not sure, Your Honor, of the

There is no allegation that that's what

happens, but my understanding is when you are playing a game on a website, it's the website code that is operating there. not all downloaded onto your computer. It would make that It's

Internet work very, very slow if that is what you are doing. THE COURT: Go ahead. The third issue that's implicated And the public display right that

MR. CHATTERJEE:

is the public display right.

they assert, that actually does not apply to an interactive audio visual work. images. Instead, it would protect individualized

And Perfect 10 versus Google and other cases talk And if you read the language of the statute They have not identified any static

about this.

itself, it says that. image.

Instead, they say when you have a randomized ball

jumping around on the screen that someone can click on, somehow that infringes their copyright. That is not a static image.

And there is no static image they can identify where it's identical or even substantially similar. any allegation about that. So as to the three exclusive rights that they say Mr. Yeo infringed, there is no indication of any activity by Facebook that encouraged or induced infringing behavior as to those three rights. And they don't make

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They also make no allegation that Mr. Yeo is operating this in the United States; that's another element. For there to be direct infringement, the direct infringement has the occur in the United States. Now they are saying that

Mr. Yeo may have moved outside of the United States. If they believe that to be true and they are right, their case is over because there is no direct infringement in the United States. foreign copyright. as a matter of law. THE COURT: Where do you think Mr. Yeo is? I don't know, Your Honor. I know You can't induce someone to infringe a The direct infringement has to occur here,

MR. CHATTERJEE:

he was in Cornell, from what they said. THE COURT: e-mail information. MR. CHATTERJEE: Correct. We have an e-mail address Well, but you said you gave him the

THE COURT:

Can we tell where that goes to? The only way that one could do that

MR. CHATTERJEE:

would be to maybe e-mail the Internet service that provides the account, or something like that. That's something that they There is no indication

would have to do to try and locate him. that they did.

You know, the way we make this system available is people will register and give an e-mail address and a website

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name, and that's the information we have. that.

And they know all

The URL, the Internet address is actually in the

complaint, it's zwigglers.com. All right, let me hear from the other side. MR. CHATTERJEE: final point? THE COURT: Sure. In your order you wanted them to Your Honor, if I could just add one

MR. CHATTERJEE:

explain in detail what it is Facebook does that invokes the copyright laws, because it's significant as to which rights get implicated and how an inducement theory would work. Apparently, Your Honor, they didn't do that. And I think

that's really important because while I can walk through the direct infringement problems there, what I heard from Mr. Sperlein today, that isn't really in their complaint. And that may or may not be true. There is some

details which I would quibble with as to the accuracy of them, but in their complaint, it still has all of this confusion and somewhat inconsistent language as to what it is that Facebook does for us to be hauled into a courtroom. Your Honor, they should not be given leave to amend to proceed against Facebook unless they have actually identified a clear exclusive right that is violated, that the exclusive right is violated in the United States, and what it is, specifically, that Facebook does that invokes the copyright

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laws under an induced infringement theory. All of those things are not in their complaint. They didn't reply to those issues. And even Mr. Sperlein's

argument just a moment ago didn't address any of those issues. At this point, at least as to Facebook, this case should end. Thank you, Your Honor. THE COURT: Okay.

Mr. Sperlein, you have the last word. MR. SPERLEIN: Okay. Let me first go to

Mr. Chatterjee's concerns about actually which rights were violated and the direct infringement. Um, first of all, as far as the reproduction right, Your Honor, you had it exactly right: When the game is played,

the entire swift file is not only -- it's downloaded onto the computer of the user. THE COURT: Is that right? Well, his point is exactly right: If

MR. SPERLEIN:

you didn't do that, the Internet would act slow.

The idea is

it downloads it, and it gets information from your computer and you play it on your computer. time someone plays it. So there is reproduction each

And that is alleged in the complaint.

And again, at least you indicated earlier that you felt direct infringement was taking place. I know that new

arguments have been raised, but I'm assuming that -- well, so that's reproduction rights.

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Distribution, same issue there:

They are

distributing -- the copies are being downloaded to each of these different places. So Yeo is continuing as long as it was

still up, which was I think about -- it was up for a good year after they got this letter telling them it was infringing. was still distributing, so they had knowledge before these direct -- these acts of direct infringement took place. And then, finally, the public display, this concerns me a little bit because I don't think Mr. -- that defense counsel is really being candid. what that law says: "In the case of literally, music, dramatic, and choreographed works, pantomimes and pictorial graphic or sculptural works, including the individual images of a motion picture or other audio visual work to display the copyrighted work" -- it says including. That doesn't say that it's only And Perfect I'm going to read what the -He

the individual pictures of an audio visual work. 10 said nothing like that. So I think that he's

misrepresenting the law in that particular case. As far as it being in the U.S., we did allege that the infringing activity took place in California, which, of course, is in the United States, so it is in the complaint. I concede that the complaint could be more clear, that the infringement is continuing to take place. The servers

that actually host the infringing game, at least at this time,

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appear to be in California, down in Culver City, I think.

And

if it weren't, then all of these individuals, each time they download that game, then part of the infringement is taking place in the United States. issue at all. I think the proposed second amended complaint does cover these issues, but I concede not as clearly as it should. And I think a few additional sentences could be added. The I don't think that's a significant

very beginning of defense counsel's opposition they said, you know, it would be hopeless, it would be useless to give leave to file an amended complaint, that's simply not true. I think

I've presented significant facts that -- to the Court today. Admittedly, they could be a little bit clearer in the complaint. And if the Court so instructs, I'll be glad to make

a few minor changes. But I think even as it stands, the complaint certainly -- you know, they understand what our claims are and they understand exactly where we are going with this and they understand the facts are in our favor. THE COURT: I don't know what they understand, but I

know what the rules of pleading require you to say, put people on notice as to what that claims are and touch the elements, whether or not they understand it or not and -- let me ask this: Mr. Chatterjee says that Facebook gave you all the

information they had on how to contact Mr. Yeo and that you

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then e-mailed Mr. Yeo, that you were in e-mail communication with him; what is your view on that? MR. SPERLEIN: Well, I will first say that an e-mail

address is not finding a person, that is finding a way to perhaps send them an e-mail, and maybe they'll respond. THE COURT: But did he? I'm sorry, Your Honor, I'm not

MR. SPERLEIN:

familiar with all of the procedural aspects in this case, but I don't believe that that's true -- wait a second. The plaintiff

did, the plaintiff, when he first became aware of the infringing activity, I know he did e-mail Mr. Yeo and was essentially told to go away. But that doesn't get us any

closer to finding out where he is. THE COURT: But here is what disturbs me a little

bit here, and I know you are acting in good faith, but when a tough question gets raised sometimes you say, I'm sorry, you would have to ask the lawyer back in Georgia. MR. SPERLEIN: THE COURT: You know --

Maybe next time you say to the guy in

Georgia, spend the money to get on an airplane and come to these hearings and not just ask you to come out here and plead I don't know whenever something comes up. I am disturbed that you haven't got Mr. Yao in the case. MR. SPERLEIN: Your Honor --

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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 things.

THE COURT:

I've given you a lot of time to get him

in the case, and you never got him in the case, and now you say, well, ask the lawyer in Georgia. MR. SPERLEIN: Well, let me just respond to two

First of all, I understand what you said.

I fully

tried to anticipate all of the questions that you would have. I spent an hour on the phone yesterday with co-counsel, followed up with e-mails, and really tried to get answers to any questions that you might ask. And I apologize that there I perhaps should have

were a few that I couldn't respond to.

been -- drilled them a little bit further. THE COURT: I want to know, did somebody get in

touch with Mr. Yeo by e-mail, say, in the last seven months? MR. SPERLEIN: I can say no to that. I know that

there was this earlier e-mail exchange through the plaintiff before counsel was in the case. I don't know if it was any

earlier, but certainly after they filed the case, my impression is that they were not able to contact him at all. Now, I think we can find him. Like I said earlier,

we can look at where his game currently resides and know where those servers are and go to that company that hosts those servers and say, who is -- who do these files belong to. Most

likely, he has some sort of payment with them, so -- and an address, and whatnot, but we can't just go to them and ask them

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that, we need a subpoena. THE COURT: Why -- in other cases the plaintiff

comes to me right at the outset, I sign an order that gives them the right to go to the -- what is it called, IPO? MR. SPERLEIN: THE COURT: court order. You know, seems to me like that should have been done in this case a long time ago, and that there is an aura about this case that you are trying to just go after the deep pockets and make life miserable for them and make these grumbling noises about Mr. Yeo without doing anything to bring him into the case, and that has not such a good flavor to it. MR. SPERLEIN: THE COURT: I absolutely -ISP, sir.

And they turn that information over by

So if I allow this case to go forward, And maybe the

maybe it's going to go to the Court of Appeals.

guy from Georgia will get on an airplane and come out here and go to the Ninth Circuit. He is not spending the money

prosecuting this case if it's worth so much money. MR. SPERLEIN: Your Honor, irrespective of what

co-counsel has done to this point, I can give you my word that shall we go forward, we will take immediate steps to identify where Mr. Yao is and get him served. have him in this case. I certainly desire to

I think he is important to the factual

record, and I want him before the Court.

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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 31. subject.

THE COURT:

All right.

I'm going to change the

Without prejudice to possibly tossing the entire case I got

out, I'm going to give you your case management order. to get this at some point.

All initial disclosures have already been done, but I'm going to give you to June 4th to do them. Leave to add any

disclosures are just, you know, you list what -- you don't have to produce anything. You just have to disclose it. Like You

employment file on plaintiff or contract with Mr. Yeo. have to list what you are going to rely on.

Leave to add any new parties or pleading amendments and to serve Yeo is going to be July 30. MR. SPERLEIN: THE COURT: July 30? If he is not in the case by then,

Yes.

I may just throw the whole thing out. Expert -- I'm sorry, fact discovery cutoff, January Expert designations, January 31. Last date to file

summary judgment, March 3. March 18th.

Final pretrial conference,

Jury trial, March -- final pretrial conference, Jury trial on April 25. This case will

April 18th, next year.

be referred to Judge Bernard Zimmerman for mediation and settlement. Okay, anyone want to talk me out of those dates? MR. SPERLEIN: Just check one thing.

March 3rd deadline to file summary judgment motions,

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not to hear them, correct? THE COURT: that for the hearing. You want to try to talk me out of this? MR. CHATTERJEE: THE COURT: I do, Your Honor. Right. And it will be 35 days after

Go ahead. Just on two issues. I think Your

MR. CHATTERJEE:

Honor correctly notices the, I'll call it the failure to prosecute by the plaintiff. I think that is an independent

basis and independent of the motion for leave to amend that the Court should be considering. The primary issue that I have with Your Honor's schedule is the June 4th date. THE COURT: What's wrong with that? The only reason I raise that is it

MR. CHATTERJEE:

depends on what -- when your -- when Your Honor rules on the motion for leave or if you are going to give them another shot at it. Because whatever the operative complaint says will

inform what we might put in the initial disclosure, although, to be candid, I don't think Facebook has had that much documentation. THE COURT: I'll give you until June 16th. But you

can at least list what you have. to make your -MR. CHATTERJEE:

It won't be that hard for you

Your Honor, it will be a very short

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list, you are correct. THE COURT: soon. I'm going to try to get an order out

So June 16th will be plenty of time. All right, interesting problem. MR. SPERLEIN: Thank you.

Thank you, Your Honor. Thank you, Your Honor.

MR. CHATTERJEE:

(Proceedings adjourned at 9:57 a.m.)

---o0o---

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CERTIFICATE OF REPORTER

I, Sahar McVickar, Official Court Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings were reported by me, a certified shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete and true record of said proceedings as bound by me at the time of filing. The validity of the reporter's

certification of said transcript may be void upon disassembly and/or removal from the court file.

/s/ Sahar McVickar Sahar McVickar, RPR, CSR No. 12963 Thursday, June 3, 2010

Sahar McVickar, C.S.R. No. 12963, RPR Official Court Reporter, U.S. District Court [phone]