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)

Exhibit 6

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COLT / WALLERSTEIN LLP
Doug Colt (Bar No. 210915)
[e-mail]
Thomas E. Wallerstein (Bar No. 232086)
[e-mail]
Nicole M. Norris (Bar No. 222785)
[e-mail]
Shorebreeze II
255 Shoreline Drive, Suite 540
Redwood Shores, California 94065
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendants Skootle Corp. and
James Kester; and Troy Fales

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UNITED STATE DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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TWITTER, INC., a Delaware corporation,

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TROY FALES’ OBJECTIONS TO
NOTICE OF SUBPOENA

Plaintiff,

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CASE NO. CV 12-1721 SI

v.

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SKOOTLE CORP., a Tennessee corporation;
and JAMES KESTER, an individual,

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Date: October 12, 2012
Time: 10:00 a.m.
Place: 650 Page Mill Road, Palo Alto, CA
94304

Defendants.
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Filing Date:
Trial Date:

April 5, 2012
None Set

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TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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Third-party Troy Fales (“Mr. Fales”) hereby responds and objects to Plaintiff Twitter Inc.’s
(“Twitter”) Notice of Subpoena for documents, as follows:

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GENERAL OBJECTIONS

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Each of Mr. Fales’ responses herein, in addition to any specifically stated objections, is

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subject to and incorporates the following general objections:
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Mr. Fales objects to each of the requests and the definitions to the extent they purport

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to impose obligations greater or more extensive than those required by the Federal Rules of Civil

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Procedure, the Local Rules of the United States District Court – Northern District of California, or

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other applicable law.

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2.

Mr. Fales objects to each of the requests and definitions to the extent they purport to

impose a burden of producing documents that cannot be found in the course of a reasonable search.
3.

Mr. Fales objects to each of the requests to the extent it seeks documents that are

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neither relevant to any claim or defense raised in this litigation, nor reasonably calculated to lead to

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the discovery of admissible evidence.

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4.

Mr. Fales objects to each of the requests to the extent it is unreasonably cumulative or

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duplicative of other discovery requests, or seeks documents that are obtainable from some other

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source that is more convenient, less burdensome, or less expensive.

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5.

Mr. Fales objects to each of the requests to the extent it is overbroad, harassing,

oppressive, or unduly burdensome.
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Mr. Fales objects to each of the requests to the extent it seeks documents for which the

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burden or expense of obtaining and disclosing outweighs its likely benefit in resolving the issues of

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this action.

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7.

Mr. Fales objects to each of the requests to the extent it fails to describe with

reasonable particularity the documents requested.
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Mr. Fales objects to each of the requests to the extent it seeks documents that are

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protected from production by the attorney-client privilege, work product immunity, and/or any other

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privilege, immunity, or exemption.

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9.

Mr. Fales objects to each of the requests to the extent it is vague or ambiguous.
-1TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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10.

Mr. Fales objects to each of the requests to the extent it seeks documents that are

subject to confidentiality agreements with third parties.
11.

Mr. Fales objects to each of the requests to the extent it seeks documents not in Mr.

Fales’ possession, custody, or control.
12.

Mr. Fales’ objection to the production of any document, or category of documents, or

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agreement to provide any responsive documents, is not and shall not be construed as an admission

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that any such documents or category of documents exists.

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13.

Mr. Fales objects to each of the requests on the grounds that discovery is continuing in

this action and Mr. Fales has not completed his factual investigation. Accordingly, without asserting

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an obligation to do so, and without waiving his objections, Mr. Fales reserves the right to amend

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and/or supplement his responses if and when additional facts or documents are discovered.

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Additionally, as Mr. Fales’ responses are based on facts and documents that Mr. Fales has identified

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to date, they do not preclude Mr. Fales from later relying on facts or documents discovered or

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generated pursuant to subsequent investigation or discovery.

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Mr. Fales’ responses are made without prejudice to his right to subsequently add to,

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modify, or otherwise change or amend these responses and objections. Furthermore, Mr. Fales

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specifically reserves the right to (i) introduce at trial other information, documents, or things that he

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may discover or upon which he may come to rely; (ii) revise, correct, supplement, or clarify any of

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his written responses at any time; and (iii) use at trial information, documents, or things that he may

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later determine to have been responsive to the requests.

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OBJECTIONS TO EXHIBIT B TO SUBPOENA – DOCUMENT REQUESTS
REQUEST NO. 1:
YOUR most recent resume OR CV.
RESPONSE TO REQUEST NO. 1:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it seeks information irrelevant to the

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claims and defenses in this action and is not reasonably calculated to lead to the discovery of

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admissible evidence.
-2TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce is most recent resume or CV, if any, that can be located

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after a reasonable search.

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REQUEST NO. 2:
DOCUMENTS sufficient to show YOUR current residential address.
RESPONSE TO REQUEST NO. 2:
In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it is (1) seeks information irrelevant

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to the claims and defenses in this action and is not reasonably calculated to lead to the discovery of

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admissible evidence; and (2) is overly broad and unduly burdensome.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales’ current residential address is not at issue in this dispute and

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documents sufficient to show such information need not be provided. Mr. Fales represents that his

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current residential address is 172 Bell Simmons Road, Asheboro, North Carolina, 27205, but that he

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may be contacted only through counsel at Colt Wallerstein LLP.

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REQUEST NO. 3:
DOCUMENTS sufficient to show the complete amount OR amounts of ANY salary, stipend,

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bonus, payments OR other money YOU have received from SKOOTLE OR ANY other entity OR

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individual CONCERNING ANY work OR services performed for, OR on behalf of SKOOTLE OR

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TWEETADDER.

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RESPONSE TO REQUEST NO. 3:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) seeks information irrelevant to

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the claims and defenses in this action and is not reasonably calculated to lead to the discovery of

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admissible evidence; and (2) violates Mr. Fales’ right to privacy as protected by the California

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constitution and other protections.
-3TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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REQUEST NO. 4:

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DOCUMENTS sufficient to fully identify ANY account(s) YOU have created on the

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SERVICE, including ALL account username(s) AND the full name(s) AND email address(es) which

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YOU used to create each account OR which YOU currently associate with each account.

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RESPONSE TO REQUEST NO. 4:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) seeks information irrelevant to

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the claims and defenses in this action and is not reasonably calculated to lead to the discovery of

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admissible evidence; and (2) seeks information already in Twitter’s possession, custody, or control.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search to the extent they relate to any accounts

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opened for or in the course and scope of his work for Skootle.

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REQUEST NO. 5:
DOCUMENTS sufficient to show the date(s) on which YOU first created OR caused to be

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created ANY account(s) on the SERVICE.

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RESPONSE TO REQUEST NO. 5:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) seeks information irrelevant to

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the claims and defenses in this action and is not reasonably calculated to lead to the discovery of

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admissible evidence; (2) is duplicative of request number 4, above; and (3) seeks information

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already in Twitter’s possession, custody, or control.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search to the extent they relate to any accounts

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opened for or in the course and scope of his work for Skootle.

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-4TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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REQUEST NO. 6:

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DOCUMENTS sufficient to show the complete source code in human-readable format for

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ALL versions of TWEETADDER, OR ANY portion of the source code in human-readable format

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for ANY version of TWEETADDER that is within YOUR possession, custody, OR control.

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RESPONSE TO REQUEST NO. 6:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) seeks information irrelevant to

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the claims and defenses in this action and is not reasonably calculated to lead to the discovery of

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admissible evidence; and (2) is vague and ambiguous as to the definition of the term “version” and

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“human-readable format.”
Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search, in the manner in which they are stored

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and/or currently written in the normal course of business for the current TweetAdder software

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licensed by Skootle, the original TweetAdder software (unreleased), TweetAdder 2009 and

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TweetAdder 2010.

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REQUEST NO. 7:

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ALL DOCUMENTS necessary to constitute an operational copy of ANY AND ALL

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versions of TWEETADDER, including the executable file AND ANY AND ALL other files

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necessary to successfully operate ANY version of TWEETADDER from a personal computer.

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RESPONSE TO REQUEST NO. 7:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it is vague and ambiguous as to the

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definition of the terms “operational copy,” “versions,” “executable file,” and “successfully operate.”

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce a copy of the TweetAdder software licensed by Skootle

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as it exists today. Mr. Fales has no reason to believe this copy will not be “operational” meaning
-5TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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that it sould function as it is intended by a TweetAdder user. Mr. Fales will also produce copies of

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the original TweetAdder software (unreleased), TweetAdder 2009 and TweetAdder 2010 within his

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possession, custody, or control, if any, that he is able to locate after a reasonable search. In light of

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changes made by Twitter, Mr. Fales cannot confirm that such copies will be “operational” with the

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Twitter platform as it exists today.

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REQUEST NO. 8:
ALL DOCUMENTS RELATING TO TWEETADDER.
RESPONSE TO REQUEST NO. 8:
In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) is overbroad and unduly

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burdensome; (2) seeks information outside Mr. Fales’ possession, custody, or control; (3) seeks

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information irrelevant to the claims and defenses in this action and is not reasonably calculated to

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lead to the discovery of admissible evidence; and (4) seeks information protected from disclosure by

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the attorney-client privilege and/or the attorney work-product doctrine.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search.

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REQUEST NO. 9:
ALL DOCUMENTS RELATING TO the research, design, development, experimentation,

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OR testing of TWEETADDER.

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RESPONSE TO REQUEST NO. 9:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) is overbroad and unduly

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burdensome; (2) seeks information protected from disclosure by the attorney-client privilege and/or

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the attorney work-product doctrine; and (3) is vague and ambiguous as to the definition of the terms

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“research, design, development, experimentation, OR testing.”
-6TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search.

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REQUEST NO. 10:

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ALL COMMUNICATIONS between YOU AND ANY PERSON RELATING TO

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TWEETADDER, ANY user of TWEETADDER, OR ANY customer OR prospective customer of

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SKOOTLE OR MR. KESTER.

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RESPONSE TO REQUEST NO. 10:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) is overbroad and unduly

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burdensome; (2) seeks information outside Mr. Fales’ possession, custody, or control; (3) seeks

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information irrelevant to the claims and defenses in this action and is not reasonably calculated to

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lead to the discovery of admissible evidence; and (4) seeks information protected from disclosure by

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the attorney-client privilege and/or the attorney work-product doctrine.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search to the extent they relate to any customer

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or prospective customer of Skootle or Mr. Kester in connection with TweetAdder.

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REQUEST NO. 11:
ALL COMMUNICATIONS between YOU AND ANY PERSON RELATING TO

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TWITTER.

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RESPONSE TO REQUEST NO. 11:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) is overbroad and unduly

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burdensome; (2) seeks information irrelevant to the claims and defenses in this action and is not

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-7TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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reasonably calculated to lead to the discovery of admissible evidence; and (3) seeks information

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protected from disclosure by the attorney-client privilege and/or the attorney work-product doctrine.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search to the extent they are related to both

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Twitter and TweetAdder.

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REQUEST NO. 12:
ALL non-privileged COMMUNICATIONS between YOU AND MR. KESTER RELATING

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TO TWITTER, SKOOTLE, OR TWEETADDER.

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RESPONSE TO REQUEST NO. 12:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) is overbroad and unduly

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burdensome; (2) is compound; (3) seeks information irrelevant to the claims and defenses in this

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action and is not reasonably calculated to lead to the discovery of admissible evidence; and (4) seeks

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information protected from disclosure by the attorney-client privilege and/or the attorney work-

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product doctrine and/or any other privilege which Mr. Fales may assert.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search to the extent they are related to either

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Twitter and TweetAdder or Skootle and TweetAdder.

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REQUEST NO. 13:
ALL COMMUNICATIONS between YOU AND TWITTER.
RESPONSE TO REQUEST NO. 13:
In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) is overbroad and unduly

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burdensome; (2) seeks information outside Mr. Fales’ possession, custody, or control; (3) seeks
-8TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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information irrelevant to the claims and defenses in this action and is not reasonably calculated to

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lead to the discovery of admissible evidence; and (4) seeks information already in Twitter’s

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possession, custody, or control.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search.

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REQUEST NO. 14:
ALL DOCUMENTS RELATING TO TWITTER, the SERVICE, OR ANY other products,

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services, OR websites offered by TWITTER.

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RESPONSE TO REQUEST NO. 14:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) is overbroad and unduly

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burdensome; (2) seeks information outside Mr. Fales’ possession, custody, or control; (3) seeks

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information protected from disclosure by the attorney-client privilege and/or the attorney work-

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product doctrine; and (4) is compound.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search to the extent they are related to both

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Twitter and TweetAdder.

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REQUEST NO. 15:
ALL DOCUMENTS RELATING TO ANY agreement between YOU AND TWITTER.
RESPONSE TO REQUEST NO. 15:

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In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) seeks information irrelevant to

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the claims and defenses in this action and is not reasonably calculated to lead to the discovery of

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admissible evidence; (2) seeks information outside Mr. Fales’ possession, custody, or control; (3)
-9TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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seeks information protected from disclosure by the attorney-client privilege and/or the attorney

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work-product doctrine; and (4) seeks information already in Twitter’s possession, custody, or

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control.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search.

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REQUEST NO. 16:
ALL COMMUNICATIONS with ANY PERSON RELATING TO this ACTION.
RESPONSE TO REQUEST NO. 16:
In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) is overbroad and unduly

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burdensome; (2) seeks information outside Mr. Fales’ possession, custody, or control; (3) seeks

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information protected from disclosure by the attorney-client privilege and/or the attorney work-

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product doctrine; and (4) seeks information irrelevant to the claims and defenses in this action and is

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not reasonably calculated to lead to the discovery of admissible evidence.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search.

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REQUEST NO. 17:
ALL DOCUMENTS RELATING TO this ACTION.
RESPONSE TO REQUEST NO. 17:
In addition to the foregoing general objections, which are expressly incorporated herein, Mr.

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Fales objects to this topic on the grounds and to the extent that it (1) is overbroad and unduly

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burdensome; (2) seeks information outside Mr. Fales’ possession, custody, or control; (3) seeks

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information protected from disclosure by the attorney-client privilege and/or the attorney work-

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product doctrine; (4) seeks information irrelevant to the claims and defenses in this action and is not
- 10 TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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reasonably calculated to lead to the discovery of admissible evidence; and (5) is duplicative of

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request number 16, above.

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Subject to, and without waiving the foregoing general and specific objections, Mr. Fales

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responds as follows: Mr. Fales will produce all non-privileged documents that are responsive to this

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request, if any, that can be located after a reasonable search.

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Date: October 5, 2012

Submitted By,
COLT / WALLERSTEIN LLP

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By:_______________________________
Doug Colt
Thomas E. Wallerstein
Attorneys for Defendants Skootle Corp. and
James Kester; and Troy Fales

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- 11 TROY FALES’ OBJECTIONS TO NOTICE OF SUBPOENA
CASE NO. CV 12-1721 SI

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COLT i WALLERSTEIN LLP
Doug Colt (BarNo. 210915)
dcolt@coltwallerstein. com
Thomas E. Wallerstein (Bar No. 232086)
twallerstein@coltwallerstein. com
Nicole M. Nonis (Bar No. 222785)
[e-mail]
Shorebreeze II
255 Shoreline Drive, Suite 540
Redwood Shores, California 94065
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Skootle Corp. and James Kester

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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TWITTER, INC., an Delaware corporation,
Plaintiff,

CASE NO. CVI2-I721 SI

PROOF OF SERVICE

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SKOOTLE CORP., a Tennessee corporation;
and JAMES KESTER, an individual

Filing Date: April 5,2012
Trial Date: None Set

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Defendants.

SIGNATURE BY FACSIMILE

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PROOF OF SERVICE
CASE NO. CVI2.I72I SI

PROOF OF SERVICE

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I am employed in the County of

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San Mateo, State of

California. I am over the

age

of

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eighteen years and not a party to the within action; my business address is Colt / Wallerstein LLP,

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255 Shoreline Drive, Suite 540, Redwood Shores, California 94065.
On October 5,2012,I served true copy of TROY FALES' OBJECTIONS TO NOTICE OF

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SUBPOENA on the parties in this action as follows:
David H. Kramer
E-mail : [e-mail]
Charles T. Graves
E-mail : [e-mail]
Riana S Pfefferkom
E-mail : rpfefferkorn@ws gr. com
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94303-1050
Attorneys for Plaintiff Twitter, Inc.

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By placing the document(s) listed above in a sealed envelope with postage thereon fully
prepaid, in the United States mail, addressed as set forth above.

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By causing the document(s) listed above to be electronically mailed to the person(s) at the
electronic mail address(es) set forth above.
By causing the document(s) listed above to be given to a courier messenger to be personally
delivered to the person(s) at the address(es) set forth above.

By causing the document(s) listed above to be delivered via overnight delivery (Federal
Express) to the person(s) as the address(es) set forth above.
By causing the document(s) listed above to be delivered via overnight delivery (United
Parcel Service [UPS] to the person(s) at the address(es) set forth above.

I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed on October 5,2012, at Redwood Shores, California.

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Su Chintanaseri

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-lPROOF OF SERVICE
CASE NO. CVI2-I72I SI