FreecycleSunnyvale v. The Freecycle Network

Filing 113

Declaration of Lisa Kobialka in Support of 110 Memorandum in Opposition, filed byThe Freecycle Network. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit 27# 28 Exhibit 28# 29 Exhibit 29# 30 Exhibit 30# 31 Exhibit 31# 32 Exhibit 32# 33 Exhibit 33# 34 Exhibit 34# 35 Exhibit 35# 36 Exhibit 36# 37 Exhibit 37# 38 Exhibit 38# 39 Exhibit 39# 40 Exhibit 40# 41 Exhibit 41# 42 Exhibit 42# 43 Exhibit 43# 44 Exhibit 44# 45 Exhibit 45# 46 Exhibit 46# 47 Exhibit 47# 48 Exhibit 48# 49 Exhibit 49# 50 Exhibit 50# 51 Exhibit 51# 52 Exhibit 52# 53 Exhibit 53# 54 Exhibit 54# 55 Exhibit 55# 56 Exhibit 56# 57 Exhibit 57# 58 Exhibit 58# 59 Exhibit 59# 60 Exhibit 60# 61 Exhibit 61# 62 Exhibit 62# 63 Exhibit 63# 64 Exhibit 64# 65 Exhibit 65# 66 Exhibit 66# 67 Exhibit 67# 68 Exhibit 68# 69 Exhibit 69# 70 Exhibit 70# 71 Exhibit 71# 72 Exhibit 72# 73 Exhibit 73# 74 Exhibit 74# 75 Exhibit 75# 76 Exhibit 76# 77 Exhibit 77# 78 Exhibit 78# 79 Exhibit 79# 80 Exhibit 80# 81 Exhibit 81# 82 Exhibit 82# 83 Exhibit 83# 84 Exhibit 84# 85 Exhibit 85# 86 Exhibit 86# 87 Exhibit 87# 88 Exhibit 88# 89 Exhibit 89# 90 Exhibit 90# 91 Exhibit 91# 92 Exhibit 92# 93 Exhibit 93# 94 Exhibit 94# 95 Exhibit 95# 96 Exhibit 96# 97 Exhibit 97# 98 Exhibit 98# 99 Exhibit 99# 100 Exhibit 100# 101 Exhibit 101# 102 Exhibit 102# 103 Exhibit 103# 104 Exhibit 104# 105 Exhibit 105# 106 Exhibit 106# 107 Exhibit 107# 108 Exhibit 108# 109 Exhibit 109# 110 Exhibit 110# 111 Exhibit 111)(Related document(s) 110 ) (Kobialka, Lisa) (Filed on 9/6/2007) Modified on 9/7/2007 (cp, COURT STAFF).

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FreecycleSunnyvale v. The Freecycle Network Doc. 113 Case 4:06-cv-00324-CW Document 113 Filed 09/06/2007 Page 1 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PAUL J. ANDRE, Bar No. 196585 (pandre@perkinscoie.com) LISA KOBIALKA, Bar No. 191404 (lkobialka@perkinscoie.com) ESHA BANDYOPADHYAY, Bar. No. 212249 (ebandyopadhyay@perkinscoie.com) SEAN M. BOYLE, Bar No. 238128 (sboyle@perkinscoie.com) PERKINS COIE LLP 101 Jefferson Drive Menlo Park, CA 94025 Telephone: (650) 838-4300 Facsimile: (650) 838-4350 Attorneys for Defendant The Freecycle Network, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION FREECYCLESUNNYVALE, a California unincorporated association, Plaintiff, v. THE FREECYCLE NETWORK, INC., an Arizona corporation, Defendant. THE FREECYCLE NETWORK, INC. an Arizona corporation, Counterclaimant, v. FREECYLESUNNYVALE, a California unincorporated association, Counterdefendant, I, LISA KOBIALKA, declare: 1. I am an attorney with the law firm of Perkins Coie LLP, counsel of record for Date: Time: Before: Location: September 27, 2007 2:00 p.m. Honorable Claudia Wilken Courtroom 2 CASE NO. C 06-00324 CW DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 Defendant and Counterclaimant The Freecycle Network, Inc. ("The Freecycle Network"). I DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 CASE NO. C 06-00324 CW Dockets.Justia.com Case 4:06-cv-00324-CW Document 113 Filed 09/06/2007 Page 2 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 have personal knowledge of the facts set forth in this declaration and can testify competently to those facts. 2. On behalf of The Freecycle Network, Inc. ("The Freecycle Network"), I have been in contact with an expert who was willing to provide an expert report on behalf of The Freecycle Network on the timeline set forth in the Court-approved schedule. The expert report was to include the subject matter of Plaintiff's Motion for Summary Judgment, Or In The Alternative, Summary Adjudication ("Plaintiff's Motion"). On August 24, 2007, the date of this Court's Order Granting Plaintiff's Motion for Leave To File a Motion For Reconsideration And Granting The Motion For Reconsideration, I spoke with this expert, who informed me that he was unable to provide a declaration by September 6, 2007, the date by which the Court ordered The Freecycle Network to file its opposition due to previous plans. 3. Attached hereto as Exhibit 1 is a true and correct copy of an email bearing Bates number FN073660. 4. Attached hereto as Exhibit 2 is a true and correct copy of pages from The Freecycle Network Web site bearing Bates numbers FN000015-16. 5. Attached hereto as Exhibit 3 is a true and correct copy of emails bearing Bates numbers FN077508-15. 6. Attached hereto as Exhibit 4 is a true and correct copy of an email bearing Bates number FN078230-02. 7. Attached hereto as Exhibit 5 is a true and correct copy of an email bearing Bates numbers FN073554-55. 8. Attached hereto as Exhibit 6 is a true and correct copy of a document bearing Bates numbers FN076455. 9. Attached hereto as Exhibit 7 is a true and correct copy of a document bearing Bates numbers FN076447-48. 10. Attached hereto as Exhibit 8 is a true and correct copy of a document bearing Bates number FN076444. DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 -2- CASE NO. C 06-00324 CW Case 4:06-cv-00324-CW Document 113 Filed 09/06/2007 Page 3 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. Attached hereto as Exhibit 9 is a true and correct copy of an email bearing Bates numbers FN080817. 12. Attached hereto as Exhibit 10 is a true and correct copy of an email bearing Bates number FN081260-61. 13. Attached hereto as Exhibit 11 is a true and correct copy of an email bearing Bates numbers FN079059-62. 14. Attached hereto as Exhibit 12 is a true and correct copy of an email bearing Bates numbers FN080713-14. 15. Attached hereto as Exhibit 13 is a true and correct copy of emails bearing Bates number FN077582-87. 16. Attached hereto as Exhibit 14 is a true and correct copy of emails bearing Bates numbers FN076503-19. 17. Attached hereto as Exhibit 15 is a true and correct copy of a State of Arizona Trade Name Certification for FREECYCLE bearing Bates number FN076409. 18. Attached hereto as Exhibit 16 is a true and correct copy of an email bearing Bates number FN073672-73. 19. Attached hereto as Exhibit 17 is a true and correct copy of a definition of the word "Freecycle" from the Web site http://www.google.com. 20. Attached hereto as Exhibit 18 is a true and correct copy of emails bearing Bates numbers FN077494-98. 21. Attached hereto as Exhibit 19 is a true and correct copy of emails bearing Bates numbers FN077408-13. 22. Attached hereto as Exhibit 20 is a true and correct copy of emails bearing Bates numbers FN077390-92. 23. Attached hereto as Exhibit 21 is a true and correct copy of an article entitled "Trading stuff for free on Net takes off" bearing Bates numbers FN001178-80. 24. Attached hereto as Exhibit 22 is a true and correct copy of an article entitled "Recycling soars online" bearing Bates number FN001221-26. DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 -3- CASE NO. C 06-00324 CW Case 4:06-cv-00324-CW Document 113 Filed 09/06/2007 Page 4 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25. Attached hereto as Exhibit 23 is a true and correct copy of an article entitled "Lockergnome.com Newsletter Article" bearing Bates numbers FN001273. 26. Attached hereto as Exhibit 24 is a true and correct copy of an article entitled "Skip the dump, avoid the legwork and visit Maine's online junkyard" bearing Bates numbers FN001327-29. 27. Attached hereto as Exhibit 25 is a true and correct copy of an article entitled "Freecycle: A Revolution of Reuse" bearing Bates number FN001415. 28. Attached hereto as Exhibit 26 is a true and correct copy of emails bearing Bates numbers FN077552-56. 29. Attached hereto as Exhibit 27 is a true and correct copy of pages from The Freecycle Network Web site bearing Bates numbers FN081701-28. 30. Attached hereto as Exhibit 28 is a true and correct copy of emails bearing Bates numbers FN077408-13. 31. Attached hereto as Exhibit 29 is a true and correct copy of a document bearing Bates numbers FN077482-83. 32. Attached hereto as Exhibit 30 is a true and correct copy of an email bearing Bates numbers FN077372-73. 33. Attached hereto as Exhibit 31 is a true and correct copy of an email bearing Bates numbers FN076915-18. 34. Attached hereto as Exhibit 32 is a true and correct copy of an article entitled "Free-For-All" bearing Bates numbers FN000712-13. 35. Attached hereto as Exhibit 33 is a true and correct copy of emails bearing Bates numbers FN077508-16. 36. Attached hereto as Exhibit 34 is a true and correct copy of an email bearing Bates number FN077627-68. 37. Attached hereto as Exhibit 35 is a true and correct copy of an email bearing Bates numbers FN080716-17. DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 -4- CASE NO. C 06-00324 CW Case 4:06-cv-00324-CW Document 113 Filed 09/06/2007 Page 5 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38. Attached hereto as Exhibit 36 is a true and correct copy of an email bearing Bates number FN073581. 39. Attached hereto as Exhibit 37 is a true and correct copy of emails bearing Bates number FN076914-18. 40. Attached hereto as Exhibit 38 is a true and correct copy of an email bearing Bates numbers FN079937-39. 41. Attached hereto as Exhibit 39 is a true and correct copy of an email bearing Bates numbers FN080467-68. 42. Attached hereto as Exhibit 40 is a true and correct copy of a page from The Freecycle Network Web site, retrieved from the Web site http://web.archive.org, bearing Bates number FN081492. 43. Attached hereto as Exhibit 41 is a true and correct copy of pages from The Freecycle Network Web site, retrieved from the Web site http://web.archive.org, bearing Bates numbers FN081499-502. 44. Attached hereto as Exhibit 42 is a true and correct copy of pages from The Freecycle Network Web site bearing Bates numbers FN000028-29. 45. Attached hereto as Exhibit 43 is a true and correct copy of a document bearing Bates number FN076453-54. 46. Attached hereto as Exhibit 44 is a true and correct copy of a document bearing Bates number FN076457. 47. Attached hereto as Exhibit 45 is a true and correct copy of a document bearing Bates number FN076463. 48. Attached hereto as Exhibit 46 is a true and correct copy of a document bearing Bates number FN076464 49. Attached hereto as Exhibit 47 is a true and correct copy of emails bearing Bates numbers FN080332-37. 50. Attached hereto as Exhibit 48 is a true and correct copy of a document bearing Bates number FN076462. DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 -5- CASE NO. C 06-00324 CW Case 4:06-cv-00324-CW Document 113 Filed 09/06/2007 Page 6 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 51. Attached hereto as Exhibit 49 is a true and correct copy of a page from The Freecycle Network Web site bearing Bates number FN081661-63. 52. Attached hereto as Exhibit 50 is a true and correct copy of an email bearing Bates numbers FN079989-92 53. Attached hereto as Exhibit 51 is a true and correct copy of an email bearing Bates numbers FN080050-53. 54. Attached hereto as Exhibit 52 is a true and correct copy of an email bearing Bates number FN080572-73. 55. Attached hereto as Exhibit 53 is a true and correct copy of an email bearing Bates numbers FN080653-54. 56. Attached hereto as Exhibit 54 is a true and correct copy of an email bearing Bates number FN077859. 57. Attached hereto as Exhibit 55 is a true and correct copy of a document bearing Bates number FN076455. 58. Attached hereto as Exhibit 56 is a true and correct copy of an email bearing Bates numbers FN080124-26. 59. Attached hereto as Exhibit 57 is a true and correct copy of a document bearing Bates numbers FN076445-46. 60. Attached hereto as Exhibit 58 is a true and correct copy of emails bearing Bates numbers FN077562-65. 61. Attached hereto as Exhibit 59 is a true and correct copy of an email bearing Bates numbers FN080444-45. 62. Attached hereto as Exhibit 60 is a true and correct copy of a document bearing Bates number FN076458. 63. Attached hereto as Exhibit 61 is a true and correct copy of emails bearing Bates number FN077357-65. 64. Attached hereto as Exhibit 62 is a true and correct copy of a document bearing Bates number FN076465. DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 -6- CASE NO. C 06-00324 CW Case 4:06-cv-00324-CW Document 113 Filed 09/06/2007 Page 7 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 65. Attached hereto as Exhibit 63 is a true and correct copy of a document bearing Bates numbers FN076452. 66. Attached hereto as Exhibit 64 is a true and correct copy of documents bearing Bates number FN076445-61. 67. Attached hereto as Exhibit 65 is a true and correct copy of a page from The Freecycle Trademark Web site, retrieved from the Web site http://web.archive.org, bearing Bates numbers FN081493-94. 68. Attached hereto as Exhibit 66 is a true and correct copy of an email bearing Bates numbers FN079596. 69. Attached hereto as Exhibit 67 is a true and correct copy of an email bearing Bates number FN014741. 70. Attached hereto as Exhibit 68 is a true and correct copy of emails bearing Bates numbers FN077486-89. 71. Attached hereto as Exhibit 69 is a true and correct copy of an email bearing Bates numbers FN073568-69. 72. Attached hereto as Exhibit 70 is a true and correct copy of an email bearing Bates number FN002739-40. 73. Attached hereto as Exhibit 71 is a true and correct copy of an email bearing Bates numbers FN077741-42. 74. Attached hereto as Exhibit 72 is a true and correct copy of an email bearing Bates number FN076930. 75. Attached hereto as Exhibit 73 is a true and correct copy of pages from The Freecycle Network Web site bearing Bates numbers FN000017-21. 76. Attached hereto as Exhibit 74 is a true and correct copy of an email bearing Bates numbers FN073612-13. 77. Attached hereto as Exhibit 75 is a true and correct copy of pages from The Freecycle Network Web site bearing Bates numbers FN000006-07 DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 -7- CASE NO. C 06-00324 CW Case 4:06-cv-00324-CW Document 113 Filed 09/06/2007 Page 8 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 78. Attached hereto as Exhibit 76 is a true and correct copy of emails bearing Bates number FN078749-57. 79. Attached hereto as Exhibit 77 is a true and correct copy of an email bearing Bates numbers FN078107. 80. Attached hereto as Exhibit 78 is a true and correct copy of emails bearing Bates numbers FN077227-35. 81. Attached hereto as Exhibit 79 is a true and correct copy of an email bearing Bates number FN077444. 82. Attached hereto as Exhibit 80 is a true and correct copy of an email bearing Bates numbers FN077268-70. 83. Attached hereto as Exhibit 81 is a true and correct copy of an email bearing Bates numbers FN078234. 84. Attached hereto as Exhibit 82 is a true and correct copy of an email bearing Bates number FN073489-90. 85. Attached hereto as Exhibit 83 is a true and correct copy of an email bearing Bates numbers FN077059-61. 86. Attached hereto as Exhibit 84 is a true and correct copy of emails bearing Bates numbers FN077494-96. 87. Attached hereto as Exhibit 85 is a true and correct copy of an email bearing Bates numbers FN080672-73. 88. Attached hereto as Exhibit 86 is a true and correct copy of a document bearing Bates numbers FN080680-81. 89. Attached hereto as Exhibit 87 is a true and correct copy of an email bearing Bates numbers FN076997-98. 90. Attached hereto as Exhibit 88 is a true and correct copy of a document bearing Bates numbers FN081741-74. 91. Attached hereto as Exhibit 89 is a true and correct copy of a document bearing Bates numbers FN081802-06. DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 -8- CASE NO. C 06-00324 CW Case 4:06-cv-00324-CW Document 113 Filed 09/06/2007 Page 9 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 92. Attached hereto as Exhibit 90 is a true and correct copy of an email bearing Bates numbers FN077521-22. 93. Attached hereto as Exhibit 91 is a true and correct copy of emails bearing Bates numbers FN060059-60. 94. Attached hereto as Exhibit 92 is a true and correct copy of emails bearing Bates numbers FN080459-66. 95. Attached hereto as Exhibit 93 is a true and correct copy of a document bearing Bates numbers FN080467-70. 96. Attached hereto as Exhibit 94 is a true and correct copy of an email bearing Bates number FN078142. 97. Attached hereto as Exhibit 95 is a true and correct copy of an email bearing Bates numbers FN001893-94. 98. Attached hereto as Exhibit 96 is a true and correct copy of a page from The Freecycle Trademark Web site, retrieved from the Web site http://web.archive.org, bearing Bates numbers FN081661-63. 99. Attached hereto as Exhibit 97 is a true and correct copy of emails bearing Bates number FN079816-19. 100. Attached hereto as Exhibit 98 is a true and correct copy of an email bearing Bates numbers FN076484-85. 101. Attached hereto as Exhibit 99 is a true and correct copy of an email bearing Bates number FN076490. 102. Attached hereto as Exhibit 100 is a true and correct copy of an email bearing Bates number FN076494. 103. Attached hereto as Exhibit 101 is a true and correct copy of emails bearing Bates numbers FN077629-31. 104. Attached hereto as Exhibit 102 is a true and correct copy of an article entitled "A website where the price is always right" bearing Bates numbers FN001262-66. DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 -9- CASE NO. C 06-00324 CW Case 4:06-cv-00324-CW Document 113 Filed 09/06/2007 Page 10 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 105. Attached hereto as Exhibit 103 is a true and correct copy of an email bearing Bates number FN073713-14. 106. Attached hereto as Exhibit 104 is a true and correct copy of an email bearing Bates numbers FN077348-51. 107. Attached hereto as Exhibit 105 is a true and correct copy of emails bearing Bates numbers FN077508-15. 108. Attached hereto as Exhibit 106 is a true and correct copy of a document bearing Bates numbers FN076477-78 109. Attached hereto as Exhibit 107 is a true and correct copy of an email bearing Bates numbers FN076482-83. 110. Attached hereto as Exhibit 108 is a true and correct copy of emails bearing Bates numbers FN077482-85. 111. Attached hereto as Exhibit 109 is a true and correct copy of emails bearing Bates number FN060049-51. 112. Attached hereto as Exhibit 110 is a true and correct copy of a letter from Dennis S. Corgill to Esha Bandyopadhyay dated August 31, 2007. 113. Attached hereto as Exhibit 111 is a true and correct copy of pages 13-16, 21-25, 27-28, 41-42, 45, and 86-87 from the transcript of the deposition of Lisanne Abraham taken August 10, 2007. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed in Menlo Park, California on September 6, 2007. By /s/ Lisa Kobialka Lisa Kobialka Attorneys for Defendant and Counterclaimant The Freecycle Network, Inc. DECLARATION OF LISA KOBIALKA IN SUPPORT OF THE FREECYCLE NETWORK'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56 - 10 - CASE NO. C 06-00324 CW

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