Facebook, Inc. v. Various, Inc. et al
Filing
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Declaration of Jeffrey T. Norberg in Support of 16 Motion to Expedite Discovery and Entry of Proposed Protective Order filed by Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Related document(s) 16 ) (Norberg, Jeffrey) (Filed on 5/12/2011) Modified on 5/13/2011 (jlm, COURT STAFF).
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COOLEY LLP
MICHAEL G. RHODES (SBN 116127) (rhodesmg@cooley.com)
GAVIN L. CHARLSTON (SBN 253899) (gcharlston@cooley.com)
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
(415) 693-2000
Facsimile:
(415) 693-2222
ANNE H. PECK (SBN 124790) (peckah@cooley.com)
JEFFREY T. NORBERG (SBN 215087) (jnorberg@cooley.com)
3175 Hanover Street
Palo Alto, CA 94304-1130
Telephone:
(650) 843-5000
Facsimile:
(650) 849-7400
Attorneys for Plaintiff
FACEBOOK, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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FACEBOOK, INC.,
Plaintiff,
v.
VARIOUS, INC.; GMCI INTERNET
OPERATIONS, INC.; TRAFFIC CAT, INC.;
FRIENDFINDER NETWORKS INC.; and
DOES 1-100,
Case No. 4:11-cv-01805-SBA
DECLARATION OF JEFFREY T.
NORBERG IN SUPPORT OF
FACEBOOK’S MOTION FOR
EXPEDITED DISCOVERY AND
MOTION TO SHORTEN TIME
Defendants.
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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO
1.
NORBERG DECL. ISO FACEBOOK’S MOT.
FOR EXPEDITED DISCOVERY & SHORTEN TIME
CASE NO. 4:11-CV-01805-SBA
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I, Jeffrey T. Norberg, declare as follows:
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1.
I am an attorney with Cooley LLP, counsel of record in this action for Plaintiff
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Facebook, Inc. (“Facebook”). I make this declaration in support of Facebook, Inc.’s Motion for
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Expedited Discovery. I have personal knowledge of the facts contained within this declaration,
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and if called as a witness, could testify competently to the matters contained herein.
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2.
Attached hereto as Exhibit A is a true and correct copy of a partial list of domains,
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created at my direction on May 3, 2011, which appear to be or have been at one time associated
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with the defendants’ affiliate program.
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3.
Since the creation of the Exhibit A, I have learned of at least two additional
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websites that use the FACEBOOK trademark as a domain or mark, and which appear to be
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members of the defendants’ affiliate program: www.facebooksextubes.com (Caution – Adult
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Content); and www.face-book-of-sex.com (Caution – Adult Content).
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4.
Attached hereto as Exhibit B is a true and correct copy of a screen print from
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www.facebooksextubes.com, which I captured on May 11, 2011 (Caution – Adult Content).
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This screen print, as well as the screen prints that follow in the rest of this Declaration, have been
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altered to obscure pornographic images and the identities of individuals appearing in any
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photographs.
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5.
Attached hereto as Exhibit C is a true and correct copy of a copy of the WHOIS
database information for the www.facebooksextubes.com site.
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Attached hereto as Exhibit D is a true and correct copy of a screen print from
www.face-book-of-sex.com, which I created on May 11, 2011 (Caution – Adult Content).
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Attached hereto as Exhibit E are true and correct copies of screen prints from the
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website www.getiton.com (Caution – Adult Content), which I captured on May 11, 2011. To
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reach the site depicted in Exhibit E, I first navigated to www.face-book-of-sex.com and then
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clicked on the GetItOn advertisement that appears in Exhibit D. Clicking on that advertisement
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caused my browser to redirect to defendant Various, Inc’s Get It On website depicted in the
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screenshots in Exhibit E.
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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO
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Attached hereto as Exhibit F is a true and correct copy of the WHOIS database
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NORBERG DECL. ISO FACEBOOK’S MOT.
FOR EXPEDITED DISCOVERY & SHORTEN TIME
CASE NO. 4:11-CV-01805-SBA
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information for the website www.face-book-of-sex.com.
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Attached hereto as Exhibit G is a true and correct copy of a screen print of the
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www.facebookofsex.com site, which I captured on May 12, 2011. After capturing this screen
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print, I logged into the facebookofsex.com site and my browser was redirected to defendant
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Various, Inc.’s website: www.xmatch.com (Caution – Adult Content).
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10.
Attached hereto as Exhibit H is a true and correct copy of Facebook’s Proposed
First Set of Requests for Production to Defendants.
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Attached hereto as Exhibit I is a true and correct copy of Facebook’s Proposed
First Set of Interrogatories to Defendants.
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Attached hereto as Exhibit J is a true and correct copy of Facebook’s Proposed
Notice of Deposition of Friendfinder Networks, Inc.
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Attached hereto as Exhibit K is a true and correct copy of a letter sent on April 14,
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2011 from Michael Rhodes, attorney of record for Facebook, to David Bloom, General Counsel
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of defendant Various, Inc. This letter was hand delivered, along with a copy of the Complaint, to
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Mr. Bloom on April 14, 2011.
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Following the filing of this complaint, Mr. Rhodes and I participated in several
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calls and e-mails with counsel for the defendants for the purpose of settling this matter. In
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addition to those communications, I participated in two meet and confer calls with counsel for the
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defendants.
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The first call took place on April 18, 2011 between myself on behalf of Facebook,
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and Floyd Mandell and Ira Rothken, counsel for defendants. During that call, I told Messrs.
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Mandell and Rothken, among other things, that Facebook intended to move for expedited
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discovery if the defendants did not comply with the demands outlined in Mr. Rhodes’ April 14
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letter (Exhibit J). Despite this, the defendants have not complied with many of those demands,
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including the demand that defendants “[o]btain the transfer to Facebook of all infringing domain
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names held by affiliates; or provide the full contact information for all affiliates who have
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registered infringing domain names, plus $10,000 per domain name to cover Facebook’s
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recovery costs.” Ex. J at 2, item 3 (emphasis added).
COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO
3.
NORBERG DECL. ISO FACEBOOK’S MOT.
FOR EXPEDITED DISCOVERY & SHORTEN TIME
CASE NO. 4:11-CV-01805-SBA
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16.
Following that call, Mr. Rhodes and I participated in several additional telephonic
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and e-mail exchanges with counsel for defendants, held for the purpose of discussing settlement.
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Those discussions did not produce a settlement and, on May 12, 2011, I held two calls with Mr.
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Mandell and other counsel for the defendants for the purpose of attempting to resolve this dispute
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without the need for Court intervention. Those conversations did not result in a resolution of this
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matter. Attached hereto as Exhibit L is a true and correct copy of an e-mail exchange between
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myself and Mr. Mandell regarding these discussions.
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17.
During my final call with Mr. Mandell, I proposed that the parties agree to an
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expedited briefing schedule for this motion as follows: Facebook’s opening brief to be filed May
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12, 2011; defendants’ opposing brief to be filed May 18, 2011; Facebook’s reply brief to be filed
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by May 20, 2011; and a hearing to be held, if necessary, on May 24, 2011 or as soon thereafter as
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is convenient for the Court. Mr. Mandell did not agree to the proposed expedited briefing
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schedule.
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18.
Pursuant to Local Rule 6-3, I further declare that Facebook is seeking an order
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shortening time to hear this motion to ensure that Facebook’s motion can be heard in time to
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allow Facebook to identify and serve the Doe Defendants with the Complaint in advance of a
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motion for preliminary injunction, which Facebook intends to file after identification of the Doe
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Defendants. Absent an order shortening time to hear the motion, Facebook will suffer additional
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harm as the identification of the Doe Defendants will be further delayed and enable the Doe
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Defendants to continue infringing the FACEBOOK trademark.
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19.
There has been one prior time modification in this case: Facebook has agreed to
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extend the deadline for the Named Defendants to respond to the Complaint until May 23, 2011.
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The requested modification of the schedule will not affect any other deadlines in the case.
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I declare under penalty of perjury that the foregoing is true and correct. Executed in Palo
Alto, California on this 12th day of May, 2011.
/s/ Jeffrey T. Norberg
Jeffrey T. Norberg
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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO
4.
NORBERG DECL. ISO FACEBOOK’S MOT.
FOR EXPEDITED DISCOVERY & SHORTEN TIME
CASE NO. 4:11-CV-01805-SBA
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