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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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: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

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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: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants
SKOOTLE CORP. and JAMES KESTER

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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TWITTER, INC., a Delaware corporation,

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Plaintiff,
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v.
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SKOOTLE CORP., a Tennessee corporation; and )
JAMES KESTER, an individual,
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Defendants.
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JOINT STATEMENT REGARDING DISCOVERY
ISSUES

CASE NO.: 3:12-cv-1721 SI
JOINT STATEMENT REGARDING
DISCOVERY ISSUES

CASE NO. 3:12-CV-1721 SI

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The parties submit this Joint Statement Regarding Discovery Issues pursuant to the Court’s

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Standing Order dated July 28, 2011. This case centers on Defendants’ software tool, TweetAdder,

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which Plaintiff alleges breaches Plaintiff’s Terms of Service (TOS) and induces Defendants’

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customers to do likewise. Defendants assert that they have not breached the TOS and have raised

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various defenses against Plaintiff’s claims. The parties are seeking discovery in connection with

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their respective claims and defenses, and met and conferred in person on October 9, 2012.

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1.

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Plaintiff’s Statement
A. Plaintiff’s Interrogatories (1, 2) (Exs. 1 & 2)

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With respect to Interrogatories 1 and 2 – in which Twitter seeks the identification of

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Twitter accounts held by Skootle’s employees – Defendants assert that information about Skootle

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employees’ non-work-related Twitter accounts is irrelevant and private, and that Twitter may

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independently obtain the same information. The information is discoverable because the opening

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of a Twitter account by a Skootle employee – which requires acceptance of the Terms of Service

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at issue in this lawsuit – may lead to relevant information that Skootle employees were aware of

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and/or bound by those Terms of Service. The bare fact of opening such accounts is not private.

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Twitter cannot identify the accounts on its own with any certainty because different people may

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use the same name to open a Twitter account.

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B. Plaintiff’s Requests for Production of Documents (Exs. 3 & 4)

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With respect to Document Requests 14 (Skootle) and 15 (Mr. Kester) – in which Twitter

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seeks documents showing Defendants’ revenues from the TweetAdder software – Defendants

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objected that this information will become relevant only once Twitter proves Defendants’ liability.

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The revenues are discoverable because, among other things, they help identify Defendants’

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customers (and thus the extent of Defendants’ liability) by corroborating other sources of

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information about the customer base; they show Defendants’ knowledge, motive, and

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responsibility for offering the software; they show the potential bias of witnesses who are paid out

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of those revenues; they are relevant for the constructive trust Twitter seeks over such revenues;

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and they demonstrate whether Defendants are able to pay any money judgment assessed against

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them.
JOINT STATEMENT REGARDING DISCOVERY
ISSUES

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CASE NO. 3:12-CV-1721 SI

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With respect to Document Requests 15 (Skootle) and 16 (Mr. Kester) – in which Twitter

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seeks Defendants’ financial statements and (redacted) tax records – Defendants claim these

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Requests are overbroad, irrelevant, and invasive of their privacy. As with the foregoing, this

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information is presently relevant because it shows motive, knowledge, and responsibility. Plaintiff

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agrees that Mr. Kester may redact personal information such as Social Security numbers, and any

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portions of documents that do not relate to TweetAdder.

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documents that do not relate in any way to TweetAdder. Plaintiff maintains that Skootle must

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produce any documents that contain both responsive material and material that does not relate to

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TweetAdder. As a corporation, Skootle has no right to privacy. See Fed. Commc’ns Comm’n v.

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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)

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Plaintiff served document subpoenas to third parties Troy Fales and Amanda Kester, who

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are both represented by Defendants’ counsel, with a response date of October 12, 2012. When the

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parties met on October 9, 2012, they agreed to extend the response date to October 19, 2012. Ms.

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Kester produced documents on that date, subject to her objections. However, Mr. Fales missed

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this extended deadline, citing “technical snags,” and has not informed Plaintiff when the

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documents will be produced except to say that document production is “forthcoming.” Plaintiff is

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entitled to timely responses to its document subpoenas, and a vague reference to “technical snags”

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does not supply adequate excuse for Mr. Fales’s failure to obey the subpoena under Rule 45(e).

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Through counsel, Mr. Fales objects that Request No. 3 – which seeks documents showing

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the amounts Mr. Fales has been paid for his work on TweetAdder – seeks irrelevant information

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and intrudes on his right to privacy. This information is discoverable because it shows that

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Defendants knew about and condoned Mr. Fales’s actions, it helps establish Mr. Fales’s status as

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an agent of Defendants, and it also shows Mr. Fales’s bias as a witness. Mr. Fales may redact

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sensitive personal information, as well as information pertaining to income for work or services

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performed wholly in connection with other matters, and not in connection with TweetAdder.

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Mr. Fales objected to Request Nos. 11, 12, and 14 – which seek documents and

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communications relating to Twitter, Skootle, or TweetAdder – as overbroad, on the basis of an
JOINT STATEMENT REGARDING DISCOVERY
ISSUES

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CASE NO. 3:12-CV-1721 SI

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apparently mistaken interpretation of the term “relating to” that encompasses any occurrence

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whatsoever of the word “Twitter,” “Skootle,” or “TweetAdder.” Twitter stands by these Requests

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as worded and maintains that the subpoena’s Definitions section, which defines certain of the

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terms used in these Requests, adequately limits the Requests’ breadth and scope.

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2.

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Defendants’ Statement
A. Plaintiff’s Responses to Skootle’s Interrogatories

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Plaintiff has responded to various of Skootle’s interrogatories by asserting that the

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information sought will be disclosed in documents that Plaintiff intends to produce. Because

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Plaintiff has thus far produced only a handful of publicly-available documents, Defendants cannot

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assess the propriety of Plaintiff’s response. In any event, Defendants have asked Plaintiff to agree

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to identify which documents are responsive to which requests, but Plaintiff has thus far declined to

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agree. Defendants will further raise this issue with this Court if Plaintiffs decline to agree.

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B. Plaintiff’s Interrogatories (1, 2)

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Plaintiff’s interrogatory numbers 1 and 2 seek information related to Defendants’, and their

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employees’, Twitter accounts. Defendants have already responded in full to these interrogatory

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requests to the extent either Skootle or Mr. Kester created any Twitter account and/or instructed

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any employee to do the same on behalf of Skootle. To the extent these interrogatories seek

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information related to Defendants’ employees’ personal Twitter accounts, if any, such information

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is outside Defendants’ possession, custody, or control in that such information is personal as to

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that individual employee. Defendants have no basis on which to demand any employee or former

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employee provide such information and Plaintiff cannot point to any authority stating otherwise.

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Moreover, despite Plaintiff’s contention, the information is irrelevant to establishing that

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any actions Defendants took constitute the violations alleged in the Complaint. Whether Skootle

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employees were aware of and/or bound by any Twitter Terms of Service as to any personal

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Twitter account they may or may not have, has no impact on Defendants’ liability.

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Furthermore, Plaintiff has alternative means of obtaining the requested information.

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Defendants have provided to Plaintiff names and contact information for any current and/or

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former Skootle employee, three of which Plaintiff has already subpoenaed. Plaintiff should pursue
JOINT STATEMENT REGARDING DISCOVERY
ISSUES

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CASE NO. 3:12-CV-1721 SI

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this information directly from the selected witnesses so that they may respond as appropriate.
C. Plaintiff’s Requests for Production of Documents

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Plaintiff’s document request numbers 14-15 to Skootle and 15-16 to Mr. Kester seek

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documents showing all of Defendants’ revenue and income, including all financial statements and

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tax records. Plaintiff has since agreed to limit these requests to cover only Defendants’ income

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from TweetAdder or their work for Skootle.

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Even as so limited, Plaintiff’s requests are overbroad. Plaintiff has claimed to be entitled

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to Defendants’ “ill-gotten gains” and seeks to recover “disgorgement of profits, as permitted by

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law and in such amounts to be proved at trial.” (Complaint, ¶¶ 74, B.) Such a remedy is not

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available to Plaintiff for the asserted causes of action and thus, the requested documents are not

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discoverable.

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Plaintiff is only entitled to disgorgement of profits if those profits were taken directly from

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Twitter. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1140, 1143-1152 (2009)

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(disgorgement of profits is not an authorized remedy in an individual action where such profits are

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neither taken from a plaintiff nor funds in which a plaintiff has an ownership interest); see also,

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Kraus v. Trinity Management Serv’s., Inc., 23 Cal.4th 116, 126-137 (2000) (plaintiff in a

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representative action cannot recover disgorgement in a nonrestitutionary sense). Skootle’s profits

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from the license of the TweetAdder software constitute neither money taken from Plaintiff nor

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funds in which Plaintiff has an ownership interest.

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Plaintiff now also claims it is entitled to that information because it helps identify

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Defendants’ customers and is relevant to show potential bias of witnesses. But Plaintiff already

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has propounded and obtained discovery that will identify Defendants’ customers and Plaintiff fails

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to articulate how the information reflect on the bias of any third party witnesses.

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D. Plaintiff’s Document Subpoenas to Third Parties

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Mr. Fales timely responded in writing to Plaintiff’s subpoena. He and his counsel are

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collecting and reviewing documents for production and will produce any responsive documents on

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a rolling basis.

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With respect to Request No. 3, Mr. Fales’ objections stand for the reasons discussed in
JOINT STATEMENT REGARDING DISCOVERY
ISSUES

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CASE NO. 3:12-CV-1721 SI

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section B, above. The requested information relates to income and profits, information to which

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Plaintiff is not entitled in light of the asserted causes of action. Mr. Fales is not a party to this

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action and his right to privacy is implicated by Plaintiff’s request. Moreover, Mr. Fales’ income

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from Skootle that has no relation to any work relating to TweetAdder is not relevant to any alleged

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causes of action or asserted defense in this case.

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Plaintiff’s Request Nos. 11, 12, and 14 seek documents that generally relate to Twitter,

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Skootle, and/or TweetAdder.

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responsive documents they could locate after a reasonable search that relate to Twitter and

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Skootle, or Twitter and TweetAdder, or Skootle and TweetAdder. Mr. Fales and Ms. Kester’s

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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.

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As worded, Plaintiff’s requests would encompass every single email to or from every

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single person who included a “Follow me on Twitter” or Twitter username in their email

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signature, regardless of the subject matter of the email. In addition, without limitation, these

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requests would render every single email, receipt, or sales confirmation for any product from any

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merchant who included a Twitter username on their emails, receipts, or sales confirmations

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responsive to these requests. Indeed, Mr. Fales and Ms. Kester have identified communications

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related to their purchases of pool equipment, aquarium equipment, flowers, and other

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miscellaneous items from Amazon.com, that all include some reference to Twitter.

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Requests calling for this type of information are grossly overbroad and would require the

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production of documents that are not in any way relevant to the claims it asserts against

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Defendants, nor can it argue that any such documents can reasonably lead to the discovery of

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admissible evidence. Accordingly, Mr. Fales’ and Ms. Kester’s limitations and agreement to

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produce documents that are related to both Twitter and TweetAdder or Skootle, are wholly

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appropriate.

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During the meet and confer process, Defendants offered to negotiate different limitations

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that would sufficiently narrow the scope of the requests to exclude the clearly irrelevant

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documents used in the examples above. Plaintiff has refused to further meet and confer and has

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opted to submit this joint statement instead.
JOINT STATEMENT REGARDING DISCOVERY
ISSUES

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CASE NO. 3:12-CV-1721 SI

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DATED: October 26, 2012

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WILSON SONSINI GOODRICH & ROSATI P.C.
By: /s Charles T. Graves
Charles T. Graves

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Attorneys for Plaintiff TWITTER, INC.

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DATED: October 26, 2012

COLT / WALLERSTEIN LLP

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By: /s Nicole M. Norris

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Attorneys for Defendants SKOOTLE CORP.
and JAMES KESTER

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JOINT STATEMENT REGARDING DISCOVERY
ISSUES

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CASE NO. 3:12-CV-1721 SI

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CERTIFICATION
I, Charles T. Graves, am the ECF User whose identification and password are being used

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to file the Joint Statement Regarding Discovery Issues. In compliance with General Order

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45.X.B, I hereby attest that Nicole M. Norris has concurred in this filing.

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DATED: October 26, 2012

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation

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By:

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s/Charles T. Graves
Charles T. Graves

Attorneys for Plaintiff Twitter, Inc.

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CERTIFICATION

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CASE NO. 3:12-CV-1721 SI