Six4three, LLC v. Facebook, Inc.

Filing 1

NOTICE OF REMOVAL (Filing fee $400 receipt number 0971-11098204) from San Mateo Superior Court. Their case number is CIV 533328. (). Filed byFacebook, Inc.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Civil Cover Sheet, #7 Certificate/Proof of Service)(Miller, Laura) (Filed on 1/24/2017)

EXHIBIT C

4

Basil P. Fthenakis, Esq. (88399)
CRITERION LAW
2225 E. Bayshore Road, Suite 200
Palo Alto, California 94303
Tel. (650) 3s2-8400
Fax. [phone]
bpf@criterionlaw,com

5

Of counsel:

6

David S. Godkin (admittedpro hac vice)
BIRNBAUM & GODKIN, LLP
280 Summer Street
Boston, MA02210
(617) 307-6t00
godkin@birnbaum godkin, com

I
2
a

J

7
8

9

(admittedpro hac vice)
BIRNBAUM & GODKIN, LLP
James Kruzer

l0

ll
t2

280 Summer Street
Boston, MA02210
[phone]
kruzer @birnbaum godkin, c om

l3
r4

Attorneys for Plaintiff,
SIX4THREE, LLC, a Delaware
limited liability company

15

t6

SUPERIOR COURT OF THE STATE OF CALIFORNIA

t7

COLINTY OF SAN MATEO

l8
t9

SIX4THREE, LLC,
liability company,

20

a Delaware

limited

Plaintiff,

21

No. CIV533328

PLAINTIF'F SIX4THREE LLC'S
RESPONSE TO DEFENDANT
FACEBOOK' INC.'S SPECIALLY
PREPARED INTERROGATORIES (SEÏ'

T\ilO)

22
23

Case

FACEBOOK, INC., a Delaware
corporation and DOES l-50, inclusive,
Defendant.

24
25

26
27
28

case No,

533328

643 RESPONSE 1'O FACEBOOK'S SPECIAL INTERROGATORIES (SET TWO)

PARTY:
PARTY:

I

PROPOUNDING

DEFENDANT FACEBOOK' INC.

2

RESPONDING

PLAINTIFF SIX4THREE LLC

3

SET:

4

ONE

Plaintiff Six4Three, LLC ("643") hereby objects and responds as follows to the Specially

5

Prepared Interrogatories (Set One) ("Special Interrogatories") propounded by Defendant

6

Facebook, Inc. ("Defendant").

PLAINTIFF'S GENERAL OBJECTIONS

7

I
9

Each and every Special Interrogatory is subject to the General Objections and limitations
set forth herein ("General Objections"),

in addition to the specific objections and limitations set

10

forth in the respective responses. The General Objections and limitations form part of the

il

Response to each Special Interrogatory and are set forth to avoid duplication for each response.

t2

643 makes the following General Objections to each Special Interrogatory:

13

t4
l5

1.

Responding Party objects to the Special Interrogatories to the extent they are

unduly burdensome and oppressive in the context of this action'

2.

Responding Party objects to these Special Interrogatories insofar as they seek

16

communications protected by the Stored Communications Act, 18 U.S.C, ${j 2701 , et seq.,

t7

('oSCA"), which prohibits service providers from disclosing electronic communication content

l8

stored on a remote computing service.

t9
20

2t

3.

Responding Party objects to these Special Interrogatories to the extent they seek

information subject to the SCA pertaining to Users.

4.

Responding Party objects to these Special Interrogatories to the extent they seek

22

information 643 is legally or contractually prohibited from disclosing, including information that

23

would require Responding Party to breach a confidentiality contract, protective order, settlement,

24

or other duty to a third party to maintain confidentiality'

25

26
27
28

5.

Responding Party objects to these Special Interrogatories to the extent they are

unduly burdensome and oppressive in the context of this aotion.

6.

Responding Party objects to these Special Interrogatories to the extent they are

covered by the attorney-client privilege, settlement privilege, work-product doctrine, or other

-lCase No, 533328

ó43 RESPONSE TO FACEI]OOK'S SPECIAL IN'IERROGATORfES

I

applicable privilege. Any such documents will not be provided in response to these requests for

2

production and any inadvertent production shall not be deemed a waiver of any privilege with

J

respect to such documents or of any work-product protections attaching to such documents,

4

7.

Responding Party objects to these Special Interrogatories to the extent they require

5

disclosure of documents containing proprietary or confidential information, trade secrets, or

6

information that may implicate third-party privacy rights.

7
8

9

8.

Responding Party objects to these Special Interrogatories to the extent they are

vague, ambiguous, unintelligible, overly broad, or harassing,

9.

Responding Party objects to these Special Interrogatories to the extent they seek

l0

documents not relevant to the subject matter of this action or reasonably calculated to lead to the

ll

discovery of admissible evidence.

t2

10.

Responding Party objects to these Special Interrogatories to the extent they seek

l3

information not within the possession, custody or control of Responding Party. An objection on

14

this ground does not constitute a representation or admission that such documents exist.

l5

II

.

Respondin gParty objects to these Special Interrogatories insofar as they seek

t6

information already in Propounding Party's possession, custody or control, or that can be

t7

obtained by Propounding Party with equal burden or directly from Users.

18

12.

Responding Party objects to these Special Interrogatories to the extent they

19

to impose obligations beyond those required or allowed by the California Code of Civil

20

Procedure.

2l

13.

Responding Party objects to the definitions of

ooDocuments" and

of

22

"Communicationsoo to the extent they impose any obligations with respect to the production

23

electronically stored information that are different from or in addition to those imposed by the

24

California Code of Civil Procedure. Responding Party further objects to these definitions to the

25

extent they include electronically stored information that is not reasonably accessible due to

26

undue burden or expense, obtainable from another source that is less burdensome, and/or

27

unreasonably cumulative or duplicative, or where the likely burden or expense outweighs the

28

likely benefit.
-2Case No. 533328

643 RESPONSE TO FACEBOOK'S SPECIAL INI'ERROGATORIES (SET TWO)

14.

I
2
J

ooYour"

Responding Party objects to the definitions of "643," "Plaintiff," "You," and

on the grounds that they are overbroad and call for information covered by the attorney-

client and work product privileges.

15,

4

Responding Party's responses are based solely upon information presently

5

available and specifically known to Responding Party. As such, Responding Party's responses are

6

made without prejudice to its right subsequently to add, modify or otherwise change or amend

7

these responses. Responding Party reserves the right to change any

8

as new

9

other information or documents, use information that it may later determine to have been

ofits objections or responses

information is discovered. Specifically, Responding Party reserves the right to introduce

10

responsive to these requests, and revise, correct, supplement or clarify any of its witten responses

1l

at any time.

t2

These General Objections are incorporated into each and every objection to Propounding

l3

Party's specific requests for production, All responses are subject to, preserve and do not

t4

constitute a waiver of these General Objections.

15

t6
17

l8
t9
20
21

OBJECTIONS AND RESPONSES TO SPECIAL INTERROG.ATORIES
SPECIAL INTERROGATORY NO. 33:
State

ALL antitrust laws that YOU contend Facebook's conduct

threatens an incipient

violation of, or violates the policy or spirit of,
RESPONSE TO SPECIAL INTERROGATORY NO. 33:
Responding Party incorporates each of the General Objections and further objects to this
demand to the extent that

it: (l) is vague and ambiguous; (2) is overly broad and unduly

22

burdensome in seeking

23

privilege and work product privileges; (4) seeks information not relevant to the subject matter of

24

this litigation and not reasonably calculated to lead to the discovery of admissible evidence; and

25

(5) seeks information equally available to Defendant.

26
27

"ALL laws"; (3) calls for information covered by the attorney-client

Subject to and without waiving the foregoing objections, Responding Party responds that

its analysis, investigation and discovery are ongoing and it does not intend to limit evidence at

28
-3Case No. 533328

643 RESPONSE TO FACEBOOK'S SPECIAL INTERROGATORIES (SET TWO)

I

trial to matters stated herein. Facebook's conduct repeatedly violates Business and Professions

2

Code g 17200 et seq, by engaging in: (1) unlawful business acts or practices; (2) unfair business

J

acts or practices; (3) fraudulent business acts or practices; (4) unfair, deceptive, untrue or

4

misleading advertising; and (5) business acts or practices prohibited bV $$ 17500-17577 .5.

5

Further, Facebook's conduct repeatedly violates Business and Professions Code $$ 17500 et seq,,

6

which prohibits advertising goods or services that Facebook knew or should have known were

7

likely to deceive, Facebook's conduct also repeatedly violates California's Consumer l,egal

8

Remedies Act (Cal. Civ, Code $$ 1750 et seq,) protecting consumers against unfair and deceptive

9

business practices (Cal. Civ. Code $ 1760) and various violations of Cal. Civ. Code $ 1770.

l0

Finally, Facebook's conduct repeatedly violates Business and Professions Code $$ 16600 et seq.

ll

prohibiting contracts that restrain engagement in a lawful profession, trade or business of any

l2

kind.
Facebook's conduct also violates Section 5 of the Federal Trade Commission Act (15

l3
t4

U.S.C. $ 45) prohibiting unfair methods of competition in or affecting commerce and unfair or

15

deceptive practices in or affecting commerce. Facebook's conduct further violates Section

t6

the Sherman Act prohibiting contracts in restraint of trade or commerce. Facebook's conduct

t7

further repeatedly violates Section 2 of the Sherman Act prohibiting the monopolization or

l8

attempt to monopolize any part of the trade or commerce among states. Facebook's conduct

t9

further repeatedly violates Section 2 of the Clayton Act, the Robinson-Patman Price

20

Discrimination Act, prohibiting discrimination of price between different purchasers where the

21

effect is to lessen competition or tend to create a monopoly. Facebook's conduct further

22

repeatedly violates Section 3 of the Clayton Act prohibiting agreements that require avoidance

23

services or goods from competitors that tend to create a monopoly or lessen competition,

24

Facebook's conduct further repeatedly violates the Cartwright Act, Business and Professions

25

Code $$ 16720 et seq., prohibiting trusts or actions in concert in restraint of trade or commerce,

26

Facebook's violations further include numerous per se violations resulting frtlm tying agrcetttettts

27

with

a host

of third parties,

28
-4Case No, 533328

643 RESPONSE TO FACI]BOOK'S SPECIAI" INTERROCATORIES (SE]-TWO)

I of

of

I

F'inally, Facebook's conduct violates numerous other state laws that are accessible via

2

Business and Professions Code $$ 17200 et seq., including but not limited to New York General

J

Business Law $$ 349 et seq, prohibiting deceptive acts or practices in conduct of any business,

4

trade or commerce or in the furnishing of any service. Facebook's conduct further violates

5

Business and Professions Code $ 17200 et seq. by reason of its tortious conduct, including but not

6

limited to constructive fraud, negligent misrepresentation of material fact, intentional interferenoe

7

with contract and intentional interference with prospective business relations,

8

SPECIAL INTERROGATORY NO. 34:

9

State

ALL laws that YOU contend Facebook's

concluct violates RELATED TO YOLJR

l0

claim for violation of Business and Professions Code $ 17200 et seq.

ll

RESPONSE TO SPECIAL INTERROGATORY NO. 34;

l2

Responding Party incorporates each of the General Objections and further objects to this

it: (l) is vague and ambiguous; (2) is overly broad and unduly

13

demand to the extent that

t4

burdensome in seekin g"ALL laws"; (3) calls for information covered by the attorney-client

l5

privilege and work product privileges; (4) seeks information not relevant to the subject matter of

l6

this litigation and not reasonably calculated to lead to the discovery of admissible evidence; and

T7

(5) seeks information equally available to Defendant.

l8

Subject to and without waiving the foregoing objections, Responding Party responds that

t9

its analysis, investigation and discovery are ongoing and it does not intend to limit evidence at

20

trial to matters stated herein. Facebook's conduct repeatedly violates Business and Professions

2t

Code $ 17200 et seq. by engaging in:

22

acts or practices; (3) fraudulent business acts or practices; (4) unfair, deceptive, untrue or

23

misleading advertising; and (5) business acts or practices prohibited by $ $ 17500- l 7 577 .5.

24

Further, Facebook's conduct repeatedly violates Business and Professions Code S$ 17500 et seq.,

25

which prohibits advertising goods or services that Facebook knew or should have known were

26

likely to deceive, Facebook's conduct also repeatedly violates Califtlrnia's Cottsuttter Legal

27

Remedies Act (Cal, Civ. Code $$ 1750 et seq.) protecting consumers against unfair and deceptive

28

business practices (Cal, Civ, Code g 1760) and various violations of Cal. Civ. Code $ 1770'

(l) unlawful business

acts or practices; (2) unfair business

-5Case No. 533328

643 RESPONSE TO F'ACEBOOK'S SPECIAL INTERROCAI'ORIES (SET TWO)

I

Finally, Facebook's conduct repeatedly violates Business and Professions Code $$ 16600 et seq.

2

prohibiting contracts that restrain engagement in a lawful profession, trade or business of any

J

kind.

4

Facebook's conduct also violates Section 5 of the Federal Trade Commission Act (15

5

U.S,C. $ 45) prohibiting unfair methods of competition in or affecting commerce and unfair or

6

deceptive practices in or affecting commerce, Facebook's conduct further violates Section 1 of

7

the Sherman Act prohibiting contracts in restraint of trade ot commerce. Facebook's conduct

I

further repeatedly violates Section 2 of the Sherman Act prohibiting the monopolization or

9

attempt to monopolize any part of the trade or commerce among states. Facebook's conduct

l0

further repeatedly violates Section 2 of the Clayton Act, the Robinson-Patman Price

ll

Discrimination Act, prohibiting discrimination of price between different purchasers where the

l2

effect is to lessen competition or tend to create a monopoly, Facebook's conduct further

l3

repeatedly violates Section 3 of the Clayton Act prohibiting agreements that require avoidance

t4

services or goods from competitors that tend to create a monopoly or lessen competition.

t5

Facebook's conduct further repeatedly violates the Cartwright Act, Business and Professions

t6

Code $$ 16720 et seq., prohibiting trusts or actions in concert in restraint of trade or commerce.

t7

Facebook's violations further include numerous per se violations resulting from tying agreements

18

with a host of third parties,

t9

of

Finally, Facebook's conduct violates numerous other state laws that are accessible via

20

Business and Professions Code $$ 17200 et seq., including but not limited to New York General

2l

Business Law $$ 349 et seq. prohibiting deceptive acts or practices in conduct of any business,

22

trade or commerce or in the furnishing of any service. Facebook's conduct further violates

¿J

Business and Professions Code $ 17200 et seq. by reason of its tortious conduct, including but not

24

limited to constructive fraud, negligent misrepresentation of material fact, intentional interference

25

with contract and intentional interference with prospective business relations.

26
27
28
-6Case No, 533328

643 RESPONSE TO FACEBOOK'S SPECIAL INTERROGATORIES (SET TWO)

I
2

CRITERION LAW

DATED: January ll,2017

UM

J

GODKIN

4

By:

IP

5

David S. Godkin (admittedpro hac vice)
James E. Kruzer (admittedpro hac vice)
Attomeys for Plaintiff
Six4Three, LLC

6
7
8
9

l0
1l

t2
l3
t4

l5
16

t7

l8
t9
20
21

22
23

24
25

26
27
28
-7Case No. 533328

643 RESPONSE TO FACEBOOK'S SPECIAL INTERROGATORIES (SET TWO)

PROOF' OF' SERVICE

I
2
3

4

I,.lames E. Kruzer, declare:

I am

a citizen of the United States and employed

in Suffolk County, Massachusetts. I am

over the age of eighteen years and not a party to the within-entitled action. My business address
is 280 Summer Street, Boston, MA 02210. On January 12,2017

5

,l served a copy of the within

document(s):

6
7

I

PLAINTIFF SIX4THREE LLC'S RESPONSE TO DEIìENDANT FACEBOOK, INC.'S
SPECIALLY PREPARED INTERROGATORIES (SET TV/O)

l.-l
r-¡

9

By electronically mailing a true and conect copy through Birnbaum & Godkin,
LLP's electronic mail system to the email addresses set forth below.

l0
1l

l2
l3

soNAL N. MEHTA (SBN 222086)
LAURA E. MILLER (SBN 2717t3)
CATHERTNE Y. KIM (SBN 308442)
Durie Tangri LLP
217 Leidesdorff Street
San Francisco,

CA

94lll

Telephone : [phone]
14
15

t6

Facsimile:

41 5 -236-6300

smehta@durietan gri, com

lmil [e-mail]
[e-mail]

t7

Attorney for Defendant
FACEBOOK, INC.

l8

I declare under penalty of perjury under the laws of the State of California that the above

t9
20

is true and correct,
Executed January 12,2017, at Boston, Massachusetts

f/c

2l
22

James E. Kruzer

23

24
25

26
27
28
-8Case No. 533328

643 RESPONSE TO FACEI]OOK'S SPECIAI- INTERROGATORIES (SET TWO)

VERIFICATION

1
2

I, Ted Kramer, as a certified representative of Plaintiff Six4Three LLC (“643”), certify

3

and declare under penalty of perjury under the laws of the state of California that I have read and

4

reviewed 643’s Answers to Facebook’s Second Set of Specially Prepared Interrogatories; and

5

believe them to be true and accurate based on the information available to 643 at the present time.

6
7

Executed January 11, 2017, at San Francisco, California.

8
By: Ted Kramer

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-1Case No. 533328

643 VERIFICATION