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 I

1
2
3
4
5
6
7
8
9
10

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.

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

OAKLAND DIVISION

14
15

FACEBOOK, INC.,

16
17
18
19
20

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

Plaintiff,

PLAINTIFF FACEBOOK, INC.’S FIRST SET
OF INTERROGATORIES TO DEFENDANTS

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

21
22
23
24

PROPOUNDING PARTY:

FACEBOOK, INC.

RESPONDING PARTY:

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

25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

SET:

ONE

Pursuant to the Court’s Order and Rules 26 and 33 of the Federal Rules of Civil
Procedure, Plaintiff Facebook, Inc. (“Facebook”) requests that Defendants Various, Inc., GMCI
1.

FACEBOOK, INC.’S FIRST SET OF
INTERROGATORIES
CASE NO.: 4:11-CV-01805-SBA

1

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

2

DEFENDANTS”) answer separately and completely in writing under oath within fifteen (15) days

3

of service hereof each of the Interrogatories set forth below in accordance with the following

4

Definitions and Instructions:

5

I.

DEFINITIONS.

6

Words in CAPITALS are defined as follows:

7

1.

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

8

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

9

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

10
11

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

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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
INTERROGATORIES
CASE NO.: 4:11-CV-01805-SBA

1

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

2

appearing on any DOCUMENT and other writing.

3

3.

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

4

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

5

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

6

electronic communications.

7

4.

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

8

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

9

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

10
11

governmental agencies or instrumentalities, societies and orders.
5.

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

12

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

13

includes any other colorable imitation of that name.

14

6.

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

7.

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

23

partners, website operators, joint venturers, third parties and/or other PERSONS who have at any

24

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

25

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

26

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

27

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

28
COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

5.

A request to provide information CONCERNING something means relating to,
3.

FACEBOOK, INC.’S FIRST SET OF
INTERROGATORIES
CASE NO.: 4:11-CV-01805-SBA

1
2
3

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

A request to IDENTIFY EACH DOCUMENT means to provide a description sufficient

to obtain production thereof by subpoena, discovery request, or court order, including:

4

(a)

The name and current business or residential address of the individual or

5

individuals who (i) prepared it, (ii) signed it or under whose signature it was issued, and (iii) to

6

whom it was addressed or distributed;

7

(b)

The title and nature of its contents;

8

(c)

The date appearing on it and the date or dates when it was prepared; and

9

(d)

The current physical location of it.

10

ALTERNATIVELY, You may identify any DOCUMENT by instead attaching a full, clear,

11

legible copy thereof to your response hereto, provided that each such copy contains a reference to

12

each Interrogatory to which it is responsive.

13

7.

A request to IDENTIFY EACH COMMUNICATION means to:

14

(a)

State the date and place of each such COMMUNICATION;

15

(b)

State the medium through which such COMMUNICATION was made (e.g., in

16

person, by telephone, by electronic mail or means, etc.);

17

(c)

IDENTIFY EACH PERSON who participated in the COMMUNICATION;

18

(d)

IDENTIFY EACH PERSON (other than a participant) who heard or had access

19

to the COMMUNICATION;

20

(e)

State the substance of the COMMUNICATION, including any discussion

21

constituting or regarding the COMMUNICATION, the order in which such discussion was had, and

22

any decisions or conclusions reached in the course of or as a result of the COMMUNICATION; and

23

(f)

24

COMMUNICATION.

25

8.

IDENTIFY EACH DOCUMENT reflecting or CONCERNING the substance of the

A request to IDENTIFY EACH PERSON refers to each natural PERSON or entity and

26

means to provide such PERSON’S or entity’s full name and the current business or employment

27

address and, if a natural PERSON, such PERSON’S residence address and telephone number.

28
COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

9.

The use of the singular form of any word includes the plural, and the use of the
4.

FACEBOOK, INC.’S FIRST SET OF
INTERROGATORIES
CASE NO.: 4:11-CV-01805-SBA

1

plural form includes the singular form.

2

II.

3

INSTRUCTIONS.
1.

YOU are requested to answer each Interrogatory set forth below separately and

4

completely in writing under oath. YOUR response hereto is to be signed and verified by the

5

PERSON making it, and the objections signed by the attorney making them, as required by Federal

6

Rule of Civil Procedure 33(b).

7

2.

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

8

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

9

only a portion of an Interrogatory, or a word, phrase or clause contained within it, YOU are

10

required to state YOUR objection to that portion only and to respond to the remainder of the

11

Interrogatory, using YOUR best efforts to do so.

12

3.

If YOU or YOUR counsel assert that any information responsive to any

13

Interrogatory is privileged or otherwise protected from discovery, YOU are requested to comply

14

with the requirements of Federal Rule of Civil Procedure 26(b)(5) as to each DOCUMENT, thing,

15

oral COMMUNICATION or piece of information for which a claim of privilege or protection from

16

discovery is made.

17

privileged or otherwise claimed to be excludable from discovery, identify the information or

18

DOCUMENT, describe its subject matter and date, identify all authors and all recipients (including

19

copied and blind copied recipients), and specify the basis for the claimed privilege or other

20

grounds of exclusion.

21

4.

For any DOCUMENT or information withheld on the grounds that it is

If YOU answer any of the Interrogatories by reference to records from which the

22

answer may be derived or ascertained, YOU are requested to comply with the requirements of

23

Federal Rule of Civil Procedure 33(d).

24

5.

If any responsive DOCUMENT is no longer in existence, cannot be located or is not

25

in YOUR possession, custody or control, identify it, describe its subject matter and describe its

26

disposition, including, without limitation, identifying the PERSON having knowledge of the

27

disposition.

28
COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

6.

These Interrogatories are continuing in nature and YOUR responses to them are to
5.

FACEBOOK, INC.’S FIRST SET OF
INTERROGATORIES
CASE NO.: 4:11-CV-01805-SBA

1

be promptly supplemented or amended if, after the time of YOUR initial responses, YOU learn that

2

any response is or has become in some material respect incomplete or incorrect, to the full extent

3

provided for by Federal Rule of Civil Procedure 26(e).

4

III.

5

INTERROGATORY NO. 1:

6

INTERROGATORIES.

IDENTIFY EACH PERSON controlled and/or operated by YOU, that has used or is currently

7

using or it is contemplated will in the future use DEFENDANTS’ MARK.

8

INTERROGATORY NO. 2:

9
10
11

IDENTIFY EACH PERSON who is a member of YOUR AFFILIATE NETWORK.
INTERROGATORY NO. 3:
IDENTIFY each domain name that has at any time pointed or redirected traffic to the

12

www.facebookofsex.com website.

13

INTERROGATORY NO. 4:

14

IDENTIFY each domain name that have at any time displayed advertising relating to

15

DEFENDANTS’ MARK and/or the www.facebookofsex.com website.

16

INTERROGATORY NO. 5:

17

Describe in detail the facts and circumstances CONCERNING the creation, origination and

18

development of YOUR AFFILIATE NETWORK.

19

INTERROGATORY NO. 6:

20

Describe in detail the facts and circumstances CONCERNING the creation, design,

21

development, selection and plans for adoption by YOU of DEFENDANTS’ MARK, including without

22

limitation, any clearance investigation, trademark search and/or opinion as to availability of

23

DEFENDANTS’ MARK.

24

INTERROGATORY NO. 7:

25

IDENTIFY EACH PERSON with knowledge of the creation, design, development, selection,

26

and adoption of DEFENDANTS’ MARK.

27

INTERROGATORY NO. 8:

28
COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

Describe in detail the process through which YOU have ever generated or derived traffic to
6.

FACEBOOK, INC.’S FIRST SET OF
INTERROGATORIES
CASE NO.: 4:11-CV-01805-SBA

1

the website www.facebookofsex.com by means of YOUR AFFILIATE NETWORK.

2

INTERROGATORY NO. 9:

3

Describe in detail the process through which YOU generate revenue through YOUR use of

4

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

5

limitation, by means of YOUR AFFILIATE NETWORK.

6

INTERROGATORY NO. 10:

7

Describe in detail any instances of actual confusion, mistake, or association between the

8

DEFENDANTS’ MARK and the FACEBOOK MARKS.

9

INTERROGATORY NO. 11:

10

Describe any advertising conducted by YOU or any other PERSON or entity of

11

DEFENDANTS’ MARK including, but without limitation: the nature of such advertising, the identity

12

of each authorized user who has conducted such advertising, the geographic scope of such

13

advertising, and the amount of money spent for such advertising on a monthly basis by each

14

PERSON or entity.

15
16
17
18

Dated: May ___, 2011

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

19
20
21
22

Jeffrey T. Norberg
Attorneys for Plaintiff
FACEBOOK, INC.

23
24
25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

7.

FACEBOOK, INC.’S FIRST SET OF
INTERROGATORIES
CASE NO.: 4:11-CV-01805-SBA