Mekiki Co. Ltd. et al v. Facebook Inc.

Filing 28

DECLARATION re 26 Answering Brief in Opposition, to Defendant's Motion to Transfer Venue -- Declaration of Eric J. Bakewell by Mekiki Co. Ltd., Mekiki Creates Co. Ltd.. (Attachments: # 1 Exhibits 1-44)(Smith, Rodger) (Additional attachment(s) added on 4/30/2010: # 1 Exhibits 1 - 44) (rwc).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MEKIKI CO., LTD., a Japan corporation and ) MEKIKI CREATES CO., LTD., a Japan ) corporation, ) ) Plaintiffs, ) ) v. ) ) FACEBOOK, INC., a Delaware corporation, ) ) Defendant. )

C.A. No. 09-745 (JAP)

DECLARATION OF ERIC J. BAKEWELL IN SUPPORT OF PLAINTIFFS MEKIKI CO., LTD.'S AND MEKIKI CREATES CO., LTD.'S ANSWERING BRIEF IN OPPOSITION TO DEFENDANT FACEBOOK INC.'S MOTION TO TRANSFER VENUE UNDER 28 U.S.C. § 1404(a) I, Eric J. Bakewell, declare as follows: 1. I am a member of the bar of the State of California and an associate with Quinn

Emanuel Urquhart & Sullivan, LLP, attorneys for Plaintiffs and Counterclaim Defendants Mekiki Co., Ltd. and Mekiki Creates Co., Ltd. (collectively "Mekiki"). I make this declaration of personal, firsthand knowledge, and if called and sworn as a witness, I could and would testify as set forth below. 2. On April 16, 2010, the parties conducted a telephonic meet and confer regarding

Facebook's motion to transfer and transfer-related discovery Mekiki sent to Facebook on April 13, 2010. 3. During the April 16, 2010 meet and confer, Facebook stated it did not believe that

Mekiki was entitled to any discovery, and so would not provide the requested discovery, or make witnesses available for deposition. In lieu of discovery responses or depositions, Facebook offered to provide a very limited amount of information on some unspecified date.

4.

The parties also discussed the Declaration of Reuben Chen submitted in

support of Facebook's transfer motion during the April 16, 2010 meet and confer. Facebook conceded that the list of individuals identified in Paragraph 8 of Mr. Chen's declaration did not include all of the individuals and companies Facebook had identified as "authors, inventors, owners, or custodians of potentially invalidating prior art." Additionally, Facebook admitted that one or more of the omitted individuals and companies from this list are located outside of California. 5. Mekiki also requested an identification of the prior art being referred to in

Mr. Chen's declaration during the April 16, 2010 meet and confer. Facebook refused to identify any of the unnamed, supposedly invalidating prior art, or explain why it believed any prior art invalidated any of the claims of the patents, claiming that this information was attorney-client privileged and protected work product. 6. During the meet and confer, Mekiki also advised Facebook that the

Declaration of Michelle Cunanan submitted with its motion to transfer was deficient. 7. Attached as Exhibit 1 is a true and correct copy of a printout from the

Delaware Department of State, Division of Corporations website regarding the status of Facebook, Inc., printed on April 25, 2010. 8. Attached as Exhibit 2 is a true and correct copy of the docket from Leader

Technologies, Inc. v. Facebook, Inc., C.A. No. 08-862, filed November 19, 2008 (D. Del.), printed on April 25, 2010. 9. Attached as Exhibit 3 is a true and correct copy of the docket from

WhoGlue, Inc. v. Facebook, Inc., C.A. No. 09-705, filed September 21, 2009 (D. Del.) ("WhoGlue Action"), printed on April 25, 2010. 10. Attached as Exhibit 4 is a true and correct copy of the Complaint for

Patent Infringement in the WhoGlue Action, filed September 21, 2009.

2

11.

Attached as Exhibit 5 is a true and correct copy of a printout from

Facebakers.com titled "Facebook in Delaware," available at http://www.facebakers.com and http://www.facebakers.com/united-states-facebook-statistics/DE/, printed on April 25, 2010. 12. Attached as Exhibit 6 is a true and correct copy of a printout from the

"Official State of Delaware Facebook Page," available at http://www.facebook.com/delaware.gov, printed on April 26, 2010. 13. Attached as Exhibit 7 is a true and correct copy of a printout from

Delaware Governor Jack Markell's Facebook page, available at http://www.facebook.com/GovernorMarkell, printed on April 26, 2010. 14. Attached as Exhibit 8 is a true and correct copy of a printout from the

Delaware Tourism Office's Facebook page, available at http://www.facebook.com/DelawareTourismOffice, printed on April 26, 2010. 15. Attached as Exhibit 9 is a true and correct copy of a printout from the

Delaware National Guard's Facebook page, available at http://www.facebook.com/pages/Wilmington-DE/Delaware-NationalGuard/256652635331, printed on April 26, 2010. 16. Attached as Exhibit 10 is a true and correct copy of a printout from the

Delaware Public Archives' Facebook page, available at http://www.facebook.com/DelawarePublicArchives, printed on April 26, 2010. 17. Attached as Exhibit 11 is a true and correct copy of a printout from the

Department of Elections for New Castle County's Facebook page, available at http://www.facebook.com/pages/Wilmington-DE/DOE-NCC/176372681244, printed on April 26, 2010. 18. Attached as Exhibit 12 is a true and correct copy of a printout from the

University of Delaware's Facebook page, available at http://www.facebook.com/udelaware, printed on April 26, 2010.

3

19.

Attached as Exhibit 13 is a true and correct copy of a printout from the

Delaware Office of Minority and Women Business Enterprise's Facebook page, available at http://www.facebook.com/pages/Dover-DE/Office-of-Minority-and-Women-BusinessEnterprise/301708805943, printed on April 26, 2010. 20. Attached as Exhibit 14 is a true and correct copy of a printout from the

"Official Delaware National Estuarine Research Reserve" Facebook page, available at http://www.facebook.com/pages/Dover-DE/Delaware-NERR/329377073314, printed on April 26, 2010. 21. Attached as Exhibit 15 is a true and correct copy of a printout from the

Delaware Blue Hens' Facebook page, available at http://www.facebook.com/pages/newark-DE/Delaware-Blue-Hens/8215649556, printed on April 26, 2010. 22. Attached as Exhibit 16 is a true and correct copy of a printout from the

John Dickinson Plantation's Facebook page, available at http://www.facebook.com/pages/Dover-DE/John-Dickinson-Plantation/263527960872, printed on April 26, 2010. 23. Attached as Exhibit 17 is a true and correct copy of a printout from the

Johnson Victrola Museum's Facebook page, available at http://www.facebook.com/pages/Dover-DE/Johnson-Victrola-Museum/214105879063, printed on April 26, 2010. 24. Attached as Exhibit 18 is a true and correct copy of a printout from the

New Castle Court House Museum's Facebook page, available at http://www.facebook.com/pages/New-Castle-DE/New-Castle-Court-HouseMuseum/361081580161, printed on April 26, 2010. 25. Attached as Exhibit 19 is a true and correct copy of a printout from the

Old State House's Facebook page, available at http://www.facebook.com/pages/DoverDE/The-Old-State-House/215088903508, printed on April 26, 2010.

4

26.

Attached as Exhibit 20 is a true and correct copy of a printout from the

Zwaanendael Museum's Facebook page, available at http://www.facebook.com/pages/Lewes-DE/Zwaanendael-Museum/216971454130, printed on April 26, 2010. 27. Attached as Exhibit 21 is a true and correct copy of a printout from the

Facebook's Careers page, available at http://www.facebook.com/careers/?view=location, printed on April 26, 2010. 28. Attached as Exhibit 22 is a true and correct copy of a printout from the

Facebook's Statistics page, available at http://www.facebook.com/press/info.php?statistics, printed on April 26, 2010. 29. Attached as Exhibit 23 is a true and correct copy of a letter from Joseph

Paunovich to Heidi Keefe, dated February 12, 2010. 30. Attached as Exhibit 24 is a true and correct copy of a letter from Heidi

Keefe to Joseph Paunovich, dated February 16, 2010. 31. Attached as Exhibit 25 is a true and correct copy of a letter from Joseph

Paunovich to Heidi Keefe, dated February 26, 2010. 32. Attached as Exhibit 26 is a true and correct copy of Mekiki's First Set of

Requests for Production of Documents and Things to Facebook, Inc., dated February 26, 2010. 33. Attached as Exhibit 27 is a true and correct copy of Mekiki's First Set of

Interrogatories to Facebook, Inc., dated February 26, 2010. 34. Attached as Exhibit 28 is a true and correct copy of Mekiki's draft

Stipulated Protective Order, provided to Facebook on February 26, 2010. 35. Attached as Exhibit 29 is a true and correct copy of a letter from Reuben

Chen to Joseph Paunovich, dated April 7, 2010. 36. Attached as Exhibit 30 is a true and correct copy of a letter from Joseph

Paunovich to Reuben Chen, dated April 7, 2010.

5

37.

Attached as Exhibit 31 is a true and correct copy of a letter from Reuben

Chen to Joseph Paunovich, dated April 8, 2010. 38. Attached as Exhibit 32 is a true and correct copy of a letter from Eric

Bakewell to Reuben Chen, dated April 13, 2010. 39. Attached as Exhibit 33 is a true and correct copy of Mekiki's Second Set

of Requests for Production of Documents and Things to Facebook, Inc., dated April 13, 2010. 40. Attached as Exhibit 34 is a true and correct copy of Mekiki's First Set of

Special Interrogatories to Facebook, Inc., dated April 13, 2010. 41. Attached as Exhibit 35 is a true and correct copy of Mekiki's First Set of

Requests for Admission to Facebook, Inc., dated April 13, 2010. 42. Attached as Exhibit 36 is a true and correct copy of Mekiki's Notice of

Deposition of Michelle Cunanan, dated April 13, 2010. 43. Attached as Exhibit 37 is a true and correct copy of Mekiki's Notice of

Deposition of Reuben Chen, dated April 13, 2010. 44. Attached as Exhibit 38 is a true and correct copy of Mekiki's Notice of

Deposition of Facebook, Inc., dated April 13, 2010. 45. Attached as Exhibit 39 is a true and correct copy of a letter from Eric

Bakewell to Reuben Chen, dated April 16, 2010. 46. Attached as Exhibit 40 is a true and correct copy of a letter from Adam

Pivovar to Mekiki's counsel, dated April 16, 2010. 47. Attached as Exhibit 41 is a true and correct copy of a letter from Adam

Pivovar to Mekiki's counsel, dated April 18, 2010. 48. Attached as Exhibit 42 is a true and correct copy of a letter from Eric

Bakewell to Adam Pivovar, dated April 19, 2010. 49. Attached as Exhibit 43 is a true and correct copy of a letter from Adam

Pivovar to Eric Bakewell, dated April 23, 2010.

6

CERTIFICATE OF SERVICE I hereby certify that on April 26, 2010 I electronically filed the foregoing with the Clerk of the Court using CM/ECF, which will send notification of such filing to: Thomas P. Preston, Esquire Steven L. Caponi, Esquire Blank Rome LLP I further certify that I caused copies of the foregoing document to be served on April 26, 2010 upon the following in the manner indicated: Thomas P. Preston, Esquire Steven L. Caponi, Esquire Blank Rome LLP 1201 Market Street Wilmington, DE 19801 Heidi L. Keefe, Esquire Mark R. Weinstein, Esquire Jeffrey Norberg, Esquire Elizabeth L. Stameshkin, Esquire Cooley Godward Kronish LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 VIA ELECTRONIC MAIL

VIA ELECTRONIC MAIL

/s/ Rodger D. Smith II
Rodger D. Smith II (#3778)