Twitter, Inc. v. Skootle Corp. et al

Filing 69

Declaration in Support of 68 MOTION for Leave to File Plaintiff's Notice of Motion and Motion for Leave to Amend Complaint Declaration of Charles T. Graves In Support of Plaintiff's Notice of Motion and Motion for Leave to Amend Complaint filed byTwitter, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 68 ) (Graves, Charles) (Filed on 11/2/2012)

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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]

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Attorneys for Plaintiff
Twitter, Inc.

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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., a Delaware corporation,

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Plaintiff,
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v.
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SKOOTLE CORP., a Tennessee corporation; and )
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JAMES KESTER,
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Defendants.
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CASE NO.: 3:12-CV-01721 SI
DECLARATION OF CHARLES T.
GRAVES IN SUPPORT OF
PLAINTIFF’S NOTICE OF
MOTION AND MOTION FOR
LEAVE TO AMEND COMPLAINT
Date:
Time:
Dept:
Before:

Friday, December 14, 2012
9:00 AM
Courtroom 10, 19th Floor
Honorable Susan Illston

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DECLARATION OF CHARLES T. GRAVES
ISO PL.’S NOTICE OF MOTION AND MOTION
FOR LEAVE TO AMEND COMPLAINT

CASE NO.: 3:12-CV-01721 SI

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I, Charles T. Graves, declare as follows:

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I am an attorney at law duly admitted to practice in the State of California and

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before this Court. I am a partner at Wilson Sonsini Goodrich & Rosati PC, counsel of record for

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Plaintiff. I am over 18 years of age and have personal knowledge of the matters set forth in this

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declaration. If called as a witness, I could and would testify competently to them. I provide this

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declaration in support of Plaintiff’s Notice of Motion and Motion for Leave to Amend

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Complaint.

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2.

Defendants served their initial disclosures on Plaintiff on August 21, 2012.

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3.

Plaintiff served its first set of interrogatories, requests for admission, and

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production of documents on Defendants Skootle Corp. (“Skootle”) and James Kester (“Mr.

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Kester”) on August 6, 2012.

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4.

Defendants responded to Plaintiff’s first set of interrogatories, requests for

admission, and requests for production of documents on September 14, 2012.
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Defendants supplemented their responses to Plaintiff’s first set of interrogatories

on September 28, 2012 and October 17, 2012.
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Defendant Skootle supplemented its responses to Plaintiff’s first set of requests

for production of documents on September 28, 2012 and October 17, 2012.
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Defendant Mr. Kester supplemented his responses to Plaintiff’s first set of

requests for production of documents on October 17, 2012.
8.

Skootle’s responses to Plaintiff’s first set of interrogatories identified five current

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or former Skootle employees, independent contractors, consultants, executives, managers,

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officers, owners, and/or members of the board of directors, including Amanda Kester (“Ms.

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Kester”) and Troy Fales (“Mr. Fales”). It is not clear from the interrogatory responses whether

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Mr. Fales was a contractor rather than an employee for part of the time period at issue.

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9.

After Plaintiff learned that Mr. Fales and Ms. Kester are current or former

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employees of Skootle, Plaintiff served third-party subpoenas on Mr. Fales and Ms. Kester on

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September 21, 2012, through counsel for Defendants, who represent Mr. Fales and Ms. Kester in

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connection with the respective subpoenas.
DECLARATION OF CHARLES T. GRAVES
ISO PL.’S NOTICE OF MOTION AND MOTION
FOR LEAVE TO AMEND COMPLAINT

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CASE NO.: 3:12-CV-01721 SI

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10.

In response to Plaintiff’s interrogatory seeking to learn the means by which the

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TweetAdder software accesses Twitter’s system, Defendants originally responded that they did

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not know.

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In a meet and confer letter dated September 28, 2012, counsel for Defendants and

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Mr. Fales reiterated that Defendants did not know how the TweetAdder software accesses the

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Twitter system.

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Defendants’ responses to Plaintiff’s first set of interrogatories state that Mr. Fales

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and Mr. Kester planned, programmed, contributed code to, or otherwise developed the

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TweetAdder software.

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Defendants’ responses to Plaintiff’s first set of requests for production of

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documents state that Defendants are not in possession, custody, or control of the source code for

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the TweetAdder software.

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In the September 28, 2012 meet and confer letter, counsel for Defendants and Mr.

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Fales repeated that Defendants do not possess copies of the source code, and stated that Mr.

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Fales would produce the TweetAdder source code.

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15.

Mr. Fales and Ms. Kester served their responses and objections to the respective

subpoenas on Plaintiff through counsel on October 5, 2012.
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Mr. Fales’s subpoena responses state that Mr. Fales resides in the State of North

Carolina.
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Mr. Fales’s subpoena responses state that Mr. Fales will produce the source code

for the TweetAdder software.
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In a meet and confer letter dated October 12, 2012, counsel for Defendants and

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Mr. Fales informed counsel for Plaintiff that Mr. Fales opened a Twitter account in the course

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and scope of his work for Skootle.

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19.

In their October 17, 2012 supplemental response to Plaintiff’s interrogatory,

Defendants explained how the TweetAdder software accesses the Twitter system.
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The circumstances strongly indicate that Mr. Fales provided the information to

Defendants about how the TweetAdder software works.
DECLARATION OF CHARLES T. GRAVES
ISO PL.’S NOTICE OF MOTION AND MOTION
FOR LEAVE TO AMEND COMPLAINT

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CASE NO.: 3:12-CV-01721 SI

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21.

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October 19, 2012.

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22.

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Ms. Kester produced documents through counsel in response to the subpoena on

On that same date, counsel for Defendants and Mr. Fales informed Plaintiff’s

counsel that production of Mr. Fales’s documents was forthcoming.
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Documents produced by Ms. Kester indicate that Mr. Fales handles bug fixes and

provides support services for the TweetAdder software.
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Plaintiff has contacted Defendant five times since October 30, 2012 to see if

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Defendants opposed the motion or would stipulate to the amendment and to attempt to schedule

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a meet and confer call. On November 2, my associate contacted defense counsel again on this

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subject, and indicated that Twitter would file the motion at the end of the day. We received no

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response from Defendants regarding whether they consent to or oppose the amendments, and

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therefore we assume that they oppose the amendments.

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A true and correct copy of the proposed Complaint as amended is attached hereto

as Exhibit 1.
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A form of the amended pleading that indicates in what respects the amended

pleading differs from the original Complaint which it amends, is attached hereto as Exhibit 2.

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I declare under penalty of perjury under the laws of the United States of America that the

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foregoing is true and correct and that this declaration is executed the 2nd day of November,

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2012, at San Francisco, California.

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/s Charles T. Graves
Charles T. Graves

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DECLARATION OF CHARLES T. GRAVES
ISO PL.’S NOTICE OF MOTION AND MOTION
FOR LEAVE TO AMEND COMPLAINT

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CASE NO.: 3:12-CV-01721 SI