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).

EXHIBIT H

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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.,

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Case No. 4:11-cv-01805-SBA

Plaintiff,

PLAINTIFF FACEBOOK, INC.’S FIRST SET
OF REQUEST FOR PRODUCTION OF
DOCUMENTS FROM DEFENDANTS

v.
VARIOUS, INC.; GMCI INTERNET
OPERATIONS, INC.; TRAFFIC CAT, INC.;
FRIENDFINDER NETWORKS INC.; and
DOES 1-100,
Defendants.

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PROPOUNDING PARTY:

FACEBOOK, INC.

RESPONDING PARTY:

VARIOUS, INC.; GMCI INTERNET OPERATIONS, INC.;
TRAFFIC CAT, INC.; AND FRIENDFINDER NETWORKS INC.

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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

SET:

ONE

Pursuant to the Court’s Order and Rules 26 and 34 of the Federal Rules of Civil
Procedure, Plaintiff Facebook, Inc. (“Facebook”) hereby demands that Defendants Various, Inc.,
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FACEBOOK, INC.’S FIRST SET OF REQUEST FOR
PRODUCTION OF DOCUMENTS
CASE NO.: 4:11-CV-01805-SBA

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GMCI Internet Operations, Inc., Traffic Cat, Inc., and Friendfinder Networks, Inc. (“NAMED

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DEFENDANTS”) answer the following document requests and produce for copying and inspection

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responsive documents within fifteen (15) from the date this demand is served, at the offices of

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Plaintiff Facebook’s counsel, Cooley LLP, 3175 Hanover Street, Palo Alto, CA 94304.

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I.

DEFINITIONS.

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Words in CAPITALS are defined as follows:

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1.

YOU, YOUR or YOURS shall mean Defendants Various, Inc., GMCI Internet

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Operations, Inc., Traffic Cat, Inc., and Friendfinder Networks, Inc., and each of them

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individually, as well as each of their officers, directors, employees, partners, corporate parent,

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subsidiaries, affiliates, attorneys, accountants, consultants, representatives and agents.
2.

DOCUMENT is used in its broadest sense, and is defined to be synonymous in

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meaning and equal in scope to the definition in Federal Rule of Civil Procedure 34. A draft or

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non-identical copy is a separate DOCUMENT within the meaning of this term. Without limiting the

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generality of the foregoing, the term “DOCUMENT” means, without limitation, the following items,

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whether printed, or written, produced or reproduced by any other mechanical process, or written

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or produced by hand, or in electronic format: agreements, communications, reports,

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correspondence, telegrams, memoranda, summaries or records of telephone conversations,

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summaries or records of personal conversations or interviews, diaries, graphs, reports, notebooks,

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plans, drawings, sketches, maps, summaries or records of any meetings or conferences,

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summaries or reports of investigations or negotiations, opinions or reports of consultants,

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photographs, motion picture film, tape recordings, videotapes, computer disks, tapes or hard

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drives, electronic mail, brochures, pamphlets, advertisements, circulars, newspaper or magazine

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articles, newsletters, publications, press releases, surveys, judicial records, customer lists,

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governmental certificates, applications, licenses, registrations, letters, accounts, objects, minutes

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of meetings, interoffice communications, studies, written forecasts, projections, analyses,

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contracts, guarantee agreements, ledgers, books of accounts, vouchers, checks, purchase orders,

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invoices, charge slips, expense account reports, receipts, working papers, drafts, statistical

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records, cost sheets, calendars, appointment books, time sheets or logs, job or transaction files,

COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

2.

FACEBOOK, INC.’S FIRST SET OF REQUEST FOR
PRODUCTION OF DOCUMENTS
CASE NO.: 4:11-CV-01805-SBA

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computer printouts or papers similar to any of the foregoing, and any marginal comments

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appearing on any DOCUMENT and other writing.

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3.

COMMUNICATION is used in its broadest sense, and means any transmission of

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information from one PERSON or entity to another by any means, including without limitation

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written communications, telephone communications, in-person communications, email and other

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electronic communications.

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4.

PERSON means any natural person or any business, legal, or governmental entity or

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association or any other cognizable entity, including, without limitation, corporations,

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proprietorships, partnerships, joint ventures, consortiums, clubs, associations, foundations,

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governmental agencies or instrumentalities, societies and orders.
5.

A request to provide DOCUMENTS that SUPPORT something means relating to,

referring to, describing, referencing, evidencing, concerning or constituting.
6.

COMPLAINT refers to the complaint filed by Facebook in Facebook, Inc. v.

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Various, Inc., et al., Civil Action No. 11-cv-01805-SBA in the United States District Court for

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the Northern District of California, San Francisco Division on or about April 13, 2011.

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7.

DEFENDANTS’ MARK refers to the name FACE BOOK OF SEX, which YOU use

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and/or have used in connection with YOUR website, accessible at www.facebookofsex.com, and

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includes any other colorable imitation of that name.

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The FACEBOOK Marks refers collectively to all of Facebook’s marks that consist

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of or incorporate the term FACEBOOK, including the FACEBOOK marks in U.S. Reg. Nos.

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3,734,637, 3,041,791, 3,122,052, 3,881,770, 3,659,516, 3,826,546, 3,801,147, 3,716,926,

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3,935,447, 3,917,332, 3,814,888, 3,793,608 and the FACEBOOK marks and variants thereof in

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Application Serial Nos. 77/589,935, 77/321,801, 77/321,779, 77/896,315, 77/896,317,

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77/896,318, 77/896,322, 77/896,323, 77/896,325, 77/967,917, 77/967,921, 77/967,932,

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85/121,339, 85/121,349, 85/147,879, 85/147,898, 85/147,910, 85/147,930, 85/147,937,

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85/147,950, and 85/147,955.

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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

9.

The term AFFILIATE NETWORK refers to YOUR network or “program” of affiliates,

partners, website operators, joint venturers, third parties and/or other Persons who have at any
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FACEBOOK, INC.’S FIRST SET OF REQUEST FOR
PRODUCTION OF DOCUMENTS
CASE NO.: 4:11-CV-01805-SBA

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time (1) displayed advertising for any website owned or operated by NAMED DEFENDANTS; (2)

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directed traffic (including without limitation by automatic redirect, or displaying click-through

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advertisements) to any website owned or operated by NAMED DEFENDANTS; and/or (3) hosted

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advertising for NAMED DEFENDANTS’ www.facebookofsex.com website.

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10.

The use of the singular form of any word includes the plural, and the use of the

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plural form includes the singular form.

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II.

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INSTRUCTIONS.
1.

The original and each non-identical copy of each DOCUMENT or other tangible

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thing requested herein which is in YOUR possession, custody or control is to be produced. If the

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original or original carbon copy is not in YOUR possession, custody, or control, a full, clear,

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legible copy is to be produced.

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2.

Each Request shall be answered fully unless it is in good faith objected to, in

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which event the reasons for YOUR objection shall be stated in detail. If an objection pertains to

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only a portion of a Request, or a word, phrase, or clause contained within it, YOU are required to

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state YOUR objection to that portion only and to respond to the remainder of the Request, using

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YOUR best efforts to do so.

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3.

Pursuant to Federal Rule of Civil Procedure 34(b), each DOCUMENT and/or thing

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produced in response is to be produced as it is kept in the usual course of business, including all

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file folders, binders, notebooks and other devices by which such papers, data, information or

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things may be organized, separated or stored.

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4.

Electronic records and computerized information must be produced in native

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format. If Facebook so requests, YOU shall provide a description of the system from which the

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records or information were derived sufficient to permit rendering the records and information

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intelligible. This description shall include, but not be limited to, the manufacturer’s name and

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model number for electronic hardware used to create the electronic records, as well as the

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manufacturer’s name, version number, any special parameters, and written documentation and

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instructions for any software used to create the electronic records and sufficient to permit those

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records to be read from the media produced. YOU shall provide all decryption or access

COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

4.

FACEBOOK, INC.’S FIRST SET OF REQUEST FOR
PRODUCTION OF DOCUMENTS
CASE NO.: 4:11-CV-01805-SBA

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passwords necessary to unlock any computerized information produced, including without

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limitation electronic mail passwords and file decryption passwords.

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If a record, DOCUMENT or data item was created on a computer or computer

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system, including but not limited to electronic mail, data files, databases, electronic documents,

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spreadsheets, source code, object code, machine code, or other programming code, it must be

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produced in an unaltered state and in its native format. For all such media produced, external

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labels on the media shall identify the computer(s) from which the copies of computer files were

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made and the full names of the individuals who used the computer so identified. If any such

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media has been altered from its original state, you must clearly identify it in your production by

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placing a label on it, titled “ALTERED FROM ORIGINAL STATE,” and in a separate

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DOCUMENT describe the manner in which the record, DOCUMENT or data item has been altered.

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For any electronic records, DOCUMENTS or data items produced in native format,

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YOU shall verify that YOU have modified YOUR Document retention policies in a manner that will

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insure retention of the original records, DOCUMENTS and data items. These DOCUMENT retention

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policies shall include, without limitation, policies that automatically delete electronic mail,

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policies that permit overwriting of computer media for system backup functions, and similar

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policies.

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7.

If YOU assert that any DOCUMENT and/or thing required to be produced is

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privileged or otherwise protected from discovery, please set forth in YOUR written response

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hereto regarding each DOCUMENT or thing for which a claim of privilege is made:

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(a)

The approximate date, and manner of recording, creating or otherwise

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preparing the DOCUMENT or thing;

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(b)

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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

The name and organizational position, if any, of each sender of the

DOCUMENT or thing
(c)

The name and organizational position, if any, of each recipient and/or

custodian of the DOCUMENT or thing;
(d)

The name and organizational position, if any, of each PERSON (other than

stenographic or clerical assistants) participating in the preparation or creation of the DOCUMENT;
5.

FACEBOOK, INC.’S FIRST SET OF REQUEST FOR
PRODUCTION OF DOCUMENTS
CASE NO.: 4:11-CV-01805-SBA

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(e)

contents of the DOCUMENT or any portion thereof have heretofore been communicated by copy,
exhibition, reading or summarization; and
(f) A statement of the basis on which privilege is claimed with respect to each
DOCUMENT or thing and whether or not its contents are limited solely to legal advice or
information provided for the purpose of securing legal advice.
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If any responsive DOCUMENT is no longer in existence, cannot be located or is not

in YOUR possession, custody or control, identify it, describe its subject matter and describe its
disposition, including, without limitation, identifying the PERSON having knowledge of the
disposition.

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The name and organizational position, if any, of each PERSON to whom the

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These Requests shall be deemed to seek the productions of Documents as of the

date of the required response, but shall be deemed to be continuing so that any additional
information relating in any way to these Requests, which Defendant acquires or which become
known to Defendant, shall be furnished to Facebook immediately after such information or
Documents are acquired or become known, to the full extent provided for by Federal Rule of
Civil Procedure 26(e).
III.

DOCUMENTS AND THINGS TO BE PRODUCED.

REQUEST FOR PRODUCTION NO. 1:
All DOCUMENTS used, identified, relied upon or referred to by YOU when answering
Facebook’s First Set of Interrogatories or any other Interrogatories propounded by Facebook.
REQUEST FOR PRODUCTION NO. 2:
DOCUMENTS sufficient to identify each member of YOUR AFFILIATE NETWORK, including
the name(s), all known current or prior mailing addresses, physical offices or other locations,
telephone numbers, and email addresses of each such member.
REQUEST FOR PRODUCTION NO. 3:
DOCUMENTS sufficient to identify every domain name operated by each member of YOUR
AFFILIATE NETWORK identified in YOUR response to Request for Production No. 2.

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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

6.

FACEBOOK, INC.’S FIRST SET OF REQUEST FOR
PRODUCTION OF DOCUMENTS
CASE NO.: 4:11-CV-01805-SBA

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REQUEST FOR PRODUCTION NO. 4:
All DOCUMENTS referring to or constituting COMMUNICATIONS between YOU and any

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member of YOUR AFFILIATE NETWORK.

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REQUEST FOR PRODUCTION NO. 5:

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All DOCUMENTS referring to the creation, origination and development of YOUR

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AFFILIATE NETWORK.

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REQUEST FOR PRODUCTION NO. 6:

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DOCUMENTS sufficient to identify each PERSON or entity with knowledge of the creation,
origination and development of YOUR AFFILIATE NETWORK.
REQUEST FOR PRODUCTION NO. 7:
All DOCUMENTS referring to or constituting COMMUNICATIONS between YOU and any

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PERSON regarding the creation, origination and development of YOUR AFFILIATE NETWORK.

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REQUEST FOR PRODUCTION NO. 8:

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All DOCUMENTS referring or relating to any consideration, financial or otherwise,

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provided to any member of YOUR AFFILIATE NETWORK.

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REQUEST FOR PRODUCTION NO. 9:

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All DOCUMENTS referring to how YOU generate revenue through YOUR use of

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DEFENDANTS’ MARK and/or through the www.facebookofsex website, including without

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limitation, by means of YOUR AFFILIATE NETWORK.

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REQUEST FOR PRODUCTION NO. 10:

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All DOCUMENTS referring to the adoption of DEFENDANTS’ MARK by YOU or other

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authorized users, including without limitation, all DOCUMENTS and things referring to or

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evidencing the origination, selection, and development of DEFENDANTS’ MARK.

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REQUEST FOR PRODUCTION NO. 11:

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DOCUMENTS sufficient to identify each PERSON or entity with knowledge of the creation,

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design, development, selection, and adoption of the DEFENDANTS’ MARK.

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REQUEST FOR PRODUCTION NO. 12:

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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

All DOCUMENTS referring to or constituting COMMUNICATIONS between YOU and any
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FACEBOOK, INC.’S FIRST SET OF REQUEST FOR
PRODUCTION OF DOCUMENTS
CASE NO.: 4:11-CV-01805-SBA

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PERSON regarding the creation, design, development, selection, and adoption of the DEFENDANTS’

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MARK.

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REQUEST FOR PRODUCTION NO. 13:

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All DOCUMENTS that refer to, reflect, mention, or otherwise indicate YOUR first use of

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DEFENDANTS’ MARK.

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REQUEST FOR PRODUCTION NO. 14:

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All DOCUMENTS that refer to, reflect, mention, or otherwise indicate the timing and

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circumstances of YOUR first learning about the FACEBOOK MARKS.

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REQUEST FOR PRODUCTION NO. 15:

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All DOCUMENTS that refer to, reflect, mention, or otherwise indicate the timing and

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circumstances of YOUR first learning about Plaintiff Facebook.

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REQUEST FOR PRODUCTION NO. 16:

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Exemplars of each type of advertising and promotional DOCUMENT referring to, reflecting

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and/or relating to the products and/or services offered by YOU in connection with DEFENDANTS’

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MARK.

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REQUEST FOR PRODUCTION NO. 17:

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All DOCUMENTS that refer to or reflect any instances of actual confusion, mistake, or

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association between DEFENDANTS’ MARK and any of the FACEBOOK MARKS.

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REQUEST FOR PRODUCTION NO. 18:

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DOCUMENTS sufficient to identify all PERSONS with knowledge of any instances of actual

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confusion, mistake, or association between DEFENDANTS’ MARK and the FACEBOOK MARKS.

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REQUEST FOR PRODUCTION NO. 19:

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All DOCUMENTS that refer to or reflect any efforts made by YOU or on YOUR behalf, at any

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time, to ascertain whether DEFENDANTS’ MARK would conflict with the rights of others, including

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without limitation, any searches, studies, investigations or analyses.

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REQUEST FOR PRODUCTION NO. 20:

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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

All DOCUMENTS referring to, reflecting or constituting any agreement, contract, license or
permission YOU have entered with any PERSON relating to the use of DEFENDANTS’ MARK.
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FACEBOOK, INC.’S FIRST SET OF REQUEST FOR
PRODUCTION OF DOCUMENTS
CASE NO.: 4:11-CV-01805-SBA

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REQUEST FOR PRODUCTION NO. 21:
All DOCUMENTS that refer to or reflect YOUR past, current, or planned future use of the

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DEFENDANTS’ MARK.

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REQUEST FOR PRODUCTION NO. 22:

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All DOCUMENTS referring to or constituting COMMUNICATIONS with any PERSON

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concerning Facebook.

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REQUEST FOR PRODUCTION NO. 23:

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DOCUMENTS sufficient to identify all historical versions of the website that YOU have
published at the domain name www.facebookofsex.com.
REQUEST FOR PRODUCTION NO. 24:
All DOCUMENTS upon which YOU intend to rely in support of any claim that Plaintiff is

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not entitled to a preliminary injunction.

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REQUEST FOR PRODUCTION NO. 25:

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DOCUMENTS

sufficient

to

show

the

number

of

visitors

to

the

website

www.facebookofsex.com, by month, from its launch to the present.

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Dated: May___, 2011

COOLEY LLP
MICHAEL G. RHODES
ANNE H. PECK
JEFFREY T. NORBERG
GAVIN L. CHARLSTON

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Jeffrey T. Norberg
Attorneys for Plaintiff
FACEBOOK, INC.

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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

9.

FACEBOOK, INC.’S FIRST SET OF REQUEST FOR
PRODUCTION OF DOCUMENTS
CASE NO.: 4:11-CV-01805-SBA