Facebook, Inc. v. Various, Inc. et al

Filing 17

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) ([e-mail])
GAVIN L. CHARLSTON (SBN 253899) ([e-mail])
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]
ANNE H. PECK (SBN 124790) ([e-mail])
JEFFREY T. NORBERG (SBN 215087) ([e-mail])
3175 Hanover Street
Palo Alto, CA 94304-1130
Telephone:
[phone]
Facsimile:
[phone]
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).
7.

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

8.

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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14.

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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15.

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