Twitter, Inc. v. Skootle Corp. et al

Filing 65

Statement Joint Statement Regarding Discovery Issues by Twitter, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Graves, Charles) (Filed on 10/26/2012)

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1 2 3 4 5 6 DAVID H. KRAMER, State Bar No. 168452 CHARLES T. GRAVES, State Bar No. 197923 RIANA S. PFEFFERKORN, State Bar No. 266817 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: 7 8 9 10 11 12 13 14 15 16 Attorneys for Plaintiff TWITTER, INC. DOUGLAS W. COLT, State Bar No. 210915 THOMAS E. WALLERSTEIN, State Bar No. 232086 NICOLE M. NORRIS, State Bar No. 222785 COLT/WALLERSTEIN LLP Shorebreeze II 255 Shoreline Drive, Suite 540 Redwood Shores, CA 94065 Telephone: (650) 453-1980 Facsimile: (650) 453-2411 Email: Attorneys for Defendants SKOOTLE CORP. and JAMES KESTER 17 18 19 20 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 21 22 23 24 25 26 27 28 TWITTER, INC., a Delaware corporation, ) ) Plaintiff, ) ) v. ) ) SKOOTLE CORP., a Tennessee corporation; and ) JAMES KESTER, an individual, ) ) Defendants. ) ) ) ) JOINT STATEMENT REGARDING DISCOVERY ISSUES CASE NO.: 3:12-cv-1721 SI JOINT STATEMENT REGARDING DISCOVERY ISSUES CASE NO. 3:12-CV-1721 SI 1 The parties submit this Joint Statement Regarding Discovery Issues pursuant to the Court’s 2 Standing Order dated July 28, 2011. This case centers on Defendants’ software tool, TweetAdder, 3 which Plaintiff alleges breaches Plaintiff’s Terms of Service (TOS) and induces Defendants’ 4 customers to do likewise. Defendants assert that they have not breached the TOS and have raised 5 various defenses against Plaintiff’s claims. The parties are seeking discovery in connection with 6 their respective claims and defenses, and met and conferred in person on October 9, 2012. 7 1. 8 Plaintiff’s Statement A. Plaintiff’s Interrogatories (1, 2) (Exs. 1 & 2) 9 With respect to Interrogatories 1 and 2 – in which Twitter seeks the identification of 10 Twitter accounts held by Skootle’s employees – Defendants assert that information about Skootle 11 employees’ non-work-related Twitter accounts is irrelevant and private, and that Twitter may 12 independently obtain the same information. The information is discoverable because the opening 13 of a Twitter account by a Skootle employee – which requires acceptance of the Terms of Service 14 at issue in this lawsuit – may lead to relevant information that Skootle employees were aware of 15 and/or bound by those Terms of Service. The bare fact of opening such accounts is not private. 16 Twitter cannot identify the accounts on its own with any certainty because different people may 17 use the same name to open a Twitter account. 18 B. Plaintiff’s Requests for Production of Documents (Exs. 3 & 4) 19 With respect to Document Requests 14 (Skootle) and 15 (Mr. Kester) – in which Twitter 20 seeks documents showing Defendants’ revenues from the TweetAdder software – Defendants 21 objected that this information will become relevant only once Twitter proves Defendants’ liability. 22 The revenues are discoverable because, among other things, they help identify Defendants’ 23 customers (and thus the extent of Defendants’ liability) by corroborating other sources of 24 information about the customer base; they show Defendants’ knowledge, motive, and 25 responsibility for offering the software; they show the potential bias of witnesses who are paid out 26 of those revenues; they are relevant for the constructive trust Twitter seeks over such revenues; 27 and they demonstrate whether Defendants are able to pay any money judgment assessed against 28 them. JOINT STATEMENT REGARDING DISCOVERY ISSUES -1- CASE NO. 3:12-CV-1721 SI 1 With respect to Document Requests 15 (Skootle) and 16 (Mr. Kester) – in which Twitter 2 seeks Defendants’ financial statements and (redacted) tax records – Defendants claim these 3 Requests are overbroad, irrelevant, and invasive of their privacy. As with the foregoing, this 4 information is presently relevant because it shows motive, knowledge, and responsibility. Plaintiff 5 agrees that Mr. Kester may redact personal information such as Social Security numbers, and any 6 portions of documents that do not relate to TweetAdder. 7 documents that do not relate in any way to TweetAdder. Plaintiff maintains that Skootle must 8 produce any documents that contain both responsive material and material that does not relate to 9 TweetAdder. As a corporation, Skootle has no right to privacy. See Fed. Commc’ns Comm’n v. 10 11 Likewise, Skootle may withhold AT&T Inc., 131 S.Ct. 1177, 1183-85, 562 U.S. __, __ (2011). C. Plaintiff’s Document Subpoenas to Third Parties (Exs. 5 & 6) 12 Plaintiff served document subpoenas to third parties Troy Fales and Amanda Kester, who 13 are both represented by Defendants’ counsel, with a response date of October 12, 2012. When the 14 parties met on October 9, 2012, they agreed to extend the response date to October 19, 2012. Ms. 15 Kester produced documents on that date, subject to her objections. However, Mr. Fales missed 16 this extended deadline, citing “technical snags,” and has not informed Plaintiff when the 17 documents will be produced except to say that document production is “forthcoming.” Plaintiff is 18 entitled to timely responses to its document subpoenas, and a vague reference to “technical snags” 19 does not supply adequate excuse for Mr. Fales’s failure to obey the subpoena under Rule 45(e). 20 Through counsel, Mr. Fales objects that Request No. 3 – which seeks documents showing 21 the amounts Mr. Fales has been paid for his work on TweetAdder – seeks irrelevant information 22 and intrudes on his right to privacy. This information is discoverable because it shows that 23 Defendants knew about and condoned Mr. Fales’s actions, it helps establish Mr. Fales’s status as 24 an agent of Defendants, and it also shows Mr. Fales’s bias as a witness. Mr. Fales may redact 25 sensitive personal information, as well as information pertaining to income for work or services 26 performed wholly in connection with other matters, and not in connection with TweetAdder. 27 Mr. Fales objected to Request Nos. 11, 12, and 14 – which seek documents and 28 communications relating to Twitter, Skootle, or TweetAdder – as overbroad, on the basis of an JOINT STATEMENT REGARDING DISCOVERY ISSUES -2- CASE NO. 3:12-CV-1721 SI 1 apparently mistaken interpretation of the term “relating to” that encompasses any occurrence 2 whatsoever of the word “Twitter,” “Skootle,” or “TweetAdder.” Twitter stands by these Requests 3 as worded and maintains that the subpoena’s Definitions section, which defines certain of the 4 terms used in these Requests, adequately limits the Requests’ breadth and scope. 5 2. 6 Defendants’ Statement A. Plaintiff’s Responses to Skootle’s Interrogatories 7 Plaintiff has responded to various of Skootle’s interrogatories by asserting that the 8 information sought will be disclosed in documents that Plaintiff intends to produce. Because 9 Plaintiff has thus far produced only a handful of publicly-available documents, Defendants cannot 10 assess the propriety of Plaintiff’s response. In any event, Defendants have asked Plaintiff to agree 11 to identify which documents are responsive to which requests, but Plaintiff has thus far declined to 12 agree. Defendants will further raise this issue with this Court if Plaintiffs decline to agree. 13 B. Plaintiff’s Interrogatories (1, 2) 14 Plaintiff’s interrogatory numbers 1 and 2 seek information related to Defendants’, and their 15 employees’, Twitter accounts. Defendants have already responded in full to these interrogatory 16 requests to the extent either Skootle or Mr. Kester created any Twitter account and/or instructed 17 any employee to do the same on behalf of Skootle. To the extent these interrogatories seek 18 information related to Defendants’ employees’ personal Twitter accounts, if any, such information 19 is outside Defendants’ possession, custody, or control in that such information is personal as to 20 that individual employee. Defendants have no basis on which to demand any employee or former 21 employee provide such information and Plaintiff cannot point to any authority stating otherwise. 22 Moreover, despite Plaintiff’s contention, the information is irrelevant to establishing that 23 any actions Defendants took constitute the violations alleged in the Complaint. Whether Skootle 24 employees were aware of and/or bound by any Twitter Terms of Service as to any personal 25 Twitter account they may or may not have, has no impact on Defendants’ liability. 26 Furthermore, Plaintiff has alternative means of obtaining the requested information. 27 Defendants have provided to Plaintiff names and contact information for any current and/or 28 former Skootle employee, three of which Plaintiff has already subpoenaed. Plaintiff should pursue JOINT STATEMENT REGARDING DISCOVERY ISSUES -3- CASE NO. 3:12-CV-1721 SI 1 2 this information directly from the selected witnesses so that they may respond as appropriate. C. Plaintiff’s Requests for Production of Documents 3 Plaintiff’s document request numbers 14-15 to Skootle and 15-16 to Mr. Kester seek 4 documents showing all of Defendants’ revenue and income, including all financial statements and 5 tax records. Plaintiff has since agreed to limit these requests to cover only Defendants’ income 6 from TweetAdder or their work for Skootle. 7 Even as so limited, Plaintiff’s requests are overbroad. Plaintiff has claimed to be entitled 8 to Defendants’ “ill-gotten gains” and seeks to recover “disgorgement of profits, as permitted by 9 law and in such amounts to be proved at trial.” (Complaint, ¶¶ 74, B.) Such a remedy is not 10 available to Plaintiff for the asserted causes of action and thus, the requested documents are not 11 discoverable. 12 Plaintiff is only entitled to disgorgement of profits if those profits were taken directly from 13 Twitter. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1140, 1143-1152 (2009) 14 (disgorgement of profits is not an authorized remedy in an individual action where such profits are 15 neither taken from a plaintiff nor funds in which a plaintiff has an ownership interest); see also, 16 Kraus v. Trinity Management Serv’s., Inc., 23 Cal.4th 116, 126-137 (2000) (plaintiff in a 17 representative action cannot recover disgorgement in a nonrestitutionary sense). Skootle’s profits 18 from the license of the TweetAdder software constitute neither money taken from Plaintiff nor 19 funds in which Plaintiff has an ownership interest. 20 Plaintiff now also claims it is entitled to that information because it helps identify 21 Defendants’ customers and is relevant to show potential bias of witnesses. But Plaintiff already 22 has propounded and obtained discovery that will identify Defendants’ customers and Plaintiff fails 23 to articulate how the information reflect on the bias of any third party witnesses. 24 D. Plaintiff’s Document Subpoenas to Third Parties 25 Mr. Fales timely responded in writing to Plaintiff’s subpoena. He and his counsel are 26 collecting and reviewing documents for production and will produce any responsive documents on 27 a rolling basis. 28 With respect to Request No. 3, Mr. Fales’ objections stand for the reasons discussed in JOINT STATEMENT REGARDING DISCOVERY ISSUES -4- CASE NO. 3:12-CV-1721 SI 1 section B, above. The requested information relates to income and profits, information to which 2 Plaintiff is not entitled in light of the asserted causes of action. Mr. Fales is not a party to this 3 action and his right to privacy is implicated by Plaintiff’s request. Moreover, Mr. Fales’ income 4 from Skootle that has no relation to any work relating to TweetAdder is not relevant to any alleged 5 causes of action or asserted defense in this case. 6 Plaintiff’s Request Nos. 11, 12, and 14 seek documents that generally relate to Twitter, 7 Skootle, and/or TweetAdder. 8 responsive documents they could locate after a reasonable search that relate to Twitter and 9 Skootle, or Twitter and TweetAdder, or Skootle and TweetAdder. Mr. Fales and Ms. Kester’s 10 Mr. Fales and Ms. Kester agreed to produce non-privileged, objections go to the over-breadth of the request to the extent they relate to Twitter generally. 11 As worded, Plaintiff’s requests would encompass every single email to or from every 12 single person who included a “Follow me on Twitter” or Twitter username in their email 13 signature, regardless of the subject matter of the email. In addition, without limitation, these 14 requests would render every single email, receipt, or sales confirmation for any product from any 15 merchant who included a Twitter username on their emails, receipts, or sales confirmations 16 responsive to these requests. Indeed, Mr. Fales and Ms. Kester have identified communications 17 related to their purchases of pool equipment, aquarium equipment, flowers, and other 18 miscellaneous items from, that all include some reference to Twitter. 19 Requests calling for this type of information are grossly overbroad and would require the 20 production of documents that are not in any way relevant to the claims it asserts against 21 Defendants, nor can it argue that any such documents can reasonably lead to the discovery of 22 admissible evidence. Accordingly, Mr. Fales’ and Ms. Kester’s limitations and agreement to 23 produce documents that are related to both Twitter and TweetAdder or Skootle, are wholly 24 appropriate. 25 During the meet and confer process, Defendants offered to negotiate different limitations 26 that would sufficiently narrow the scope of the requests to exclude the clearly irrelevant 27 documents used in the examples above. Plaintiff has refused to further meet and confer and has 28 opted to submit this joint statement instead. JOINT STATEMENT REGARDING DISCOVERY ISSUES -5- CASE NO. 3:12-CV-1721 SI 1 2 DATED: October 26, 2012 3 WILSON SONSINI GOODRICH & ROSATI P.C. By: /s Charles T. Graves Charles T. Graves 4 Attorneys for Plaintiff TWITTER, INC. 5 6 7 DATED: October 26, 2012 COLT / WALLERSTEIN LLP 8 By: /s Nicole M. Norris 9 Attorneys for Defendants SKOOTLE CORP. and JAMES KESTER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOINT STATEMENT REGARDING DISCOVERY ISSUES -6- CASE NO. 3:12-CV-1721 SI 1 2 CERTIFICATION I, Charles T. Graves, am the ECF User whose identification and password are being used 3 to file the Joint Statement Regarding Discovery Issues. In compliance with General Order 4 45.X.B, I hereby attest that Nicole M. Norris has concurred in this filing. 5 DATED: October 26, 2012 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 6 By: 7 8 s/Charles T. Graves Charles T. Graves Attorneys for Plaintiff Twitter, Inc. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATION -1- CASE NO. 3:12-CV-1721 SI

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