The Facebook, Inc. v. Connectu, Inc et al

Filing 108

Defendants' Objections to Plaintiffs' Proposed Evidence Submitted in Support of Its Opposition to Motion to Dismiss for Lack of Personal Jurisdiction by Pacific Northwest Software, Inc., Winston Williams. (Mosko, Scott) (Filed on 7/6/2007) Text modified on 7/10/2007 to conform to document caption post by counsel (bw, COURT STAFF).

The Facebook, Inc. v. Connectu, LLC et al

Doc. 108

Case 5:07-cv-01389-RS

Document 108

Filed 07/06/2007

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Scott R. Mosko (State Bar No. 106070) FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P. Stanford Research Park 3300 Hillview Avenue Palo Alto, California 94304 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Pacific Northwest Software, Inc. and Winston Williams

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC. and MARK ZUCKERBERG, Plaintiffs, v. CONNECTU LLC, (now known as CONNECTU INC.) CAMERON WINKLEVOSS, TYLER WINKLEVOSS, DIVYA NARENDRA, PACIFIC NORTHWEST SOFTWARE, INC., WINSTON WILLIAMS, WAYNE CHANG, and DAVID GUCWA, and DOES 1-25, Defendants.

CASE NO. C 07-01389 RS DEFENDANTS' OBJECTIONS TO PLAINTIFFS' PROPOSED EVIDENCE SUBMITTED IN SUPPORT OF ITS OPPOSITION TO MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION. Date: Time: Dept.: Judge: July 11, 2007 9:30 a.m. 4 Honorable Richard Seeborg

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DEFENDANTS' OBJECTIONS TO PLAINTIFFS' PROPOSED EVIDENCE JURISDICTION. CASE NO. C 07-01389 RS

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Plaintiffs submitted 35 exhibits in support of their opposition to Defendants' Motion to Dismiss for Lack of Personal Jurisdiction. Below, Defendants submit a chart listing certain exhibits, and raising objections to them. When a defendant asserts that a court cannot assert personal jurisdiction over him, the plaintiff has the burden to submit competent non-hearsay prima facie evidence that would support a finding for the assertion of personal jurisdiction. Calloway Golf Association v. Royal Canadian Golf Association, 125 F.Supp.2d 1194, 1202 (C.D.Cal. 2000) "Prima facie" means "substantial independent evidence, other than hearsay." United States v. Dixon, 562 F.2d 1138, 1141 (9th Cir. 1977) citing United States v. Calaway, 524 F.2d 609, 612 (9th Cir. 1975). The exhibits referenced below do not and cannot qualify as "prima facie" evidence supporting the assertion of jurisdiction over moving Defendants.

Plaintiffs' Submitted Proposed Evidence.

Objections to Proposed Evidence.

Cooper Dec. Ex. 2 - email from Adam Philip Scheider to Hearsay; lacks foundation. Plaintiffs fail Mark Zuckerberg, dated February 29, 2004, Bates to authenticate this document. This labeled FACE000897-99 document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants. Cooper Dec. Ex. 5 - February 24, 2005 Harvard Crimson Hearsay; lacks foundation. Plaintiffs fail article, Bates labeled C006186-96 to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants. Cooper Dec. Ex. 6 - July 2, 2005 Wired article titled Hearsay; lacks foundation. Plaintiffs fail "Finding Friends with Facebook" to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants. Cooper Dec. Ex. 10 - documents produced by iMarc in Each document in Exhibit 10 is hearsay, the Massachusetts matter on September 26, 2006, Bates lacks foundation and is unauthenticated. labeled iMarc000012, iMarc000622-24, iMarc000659, There is no expert testimony providing iMarc000798 any opinion regarding these documents. Specifically, regarding the print out of what appears to be an email from David Tuffs to [e-mail] and [e-mail]. (Cooper Decl. Exh.
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Cooper Dec. Ex. 14 - documents produced by ConnectU in the Massachusetts matter, Bates labeled C003865-69, C004243, C004299-300, C006535-36, C006537, C007512-7517, C008392, C008657, C008658, C008662, C008674, C009768-69, C009887-96, C010359, C011039-40, C011073-82 Cooper Dec. Ex. 18 - documents produced by David Gucwa on March 12, 2007, Bates labeled GUCWA0018-26; 0048, 0056-63, 0075-115, 0117, 0124, 0134 Cooper Dec. Ex. 19 - documents produced by Pacific Northwest Software, Bates labeled PNS000015-16, PNS000226, PNS000386-90, PNS000398-400, PNS000441, PNS000768-70, PNS000842-43, PNS001144-49, PNS001215-16, PNS001238-39, PNS001759-65, PNS01766-77, PNS01844-56, PNS01848, PNS02096, PNS0281469-73., PNS031017779, PNS0310185-86, PNS0310455, PNS0571134-49

Cooper Dec. Ex. 20 - Wayne Chang's profile on www.linkedin.com indicating that he joined Pacific Northwest Software in 2002; emails authored in 2003 by Chang on behalf of Pacific Northwest Software, and printouts from Pacific Northwest Software's website from 2004 through the present showing Chang was employed by Pacific Northwest Software during this period

10) Plaintiffs fail to provide any foundation as to who these people are. The statements in this email are pure hearsay. While the print out identifies what appears to be over 500 email addresses, there is no competent evidence or foundation that ties this document to moving Defendants, or that moving Defendants had any involvement with unsupported claims made in this document. Hearsay; lacks foundation. Plaintiffs fail to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants. Hearsay; lacks foundation. Plaintiffs fail to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants. Each document in Exhibit 10 is hearsay, lacks foundation and is unauthenticated. There is no expert testimony providing any opinion regarding these documents. Specifically, regarding certain pages of what appears to be computer script that are unauthenticated and lack foundation. (Cooper Decl. Exh. 19, at 310177, 310455, 310185 - 86, 310177 - 79, 281469 - 73) There is no evidence this script was run, or that moving Defendants had anything to do with it. Plaintiffs conclusions as to the effect of this script are unsupported and lack foundation. Hearsay; lacks foundation. Plaintiffs fail to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants.

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Cooper Dec. Ex. 24 - "contact us" page at www.webquarry.com, indicating it is a California company

Hearsay; lacks foundation. Plaintiffs fail to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to or show that any information in this document was known by moving Defendants. Cooper Dec. Ex. 25 - documents produced by ConnectU, Hearsay; lacks foundation. Plaintiffs fail Bates labeled CUCA001380-83 to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants. Cooper Dec. Ex. 26 - documents produced by ConnectU, Hearsay; lacks foundation. Plaintiffs fail Bates labeled CUCA000172 and CUCA02972 to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants. Cooper Dec. Ex. 27 - Pacific Northwest Software Hearsay; lacks foundation. Plaintiffs fail homepage at www.pnwsoft.com to authenticate this document. Cooper Dec. Ex. 28 - "Our People" page at Hearsay; lacks foundation. Plaintiffs fail www.recordsportal.com/content/people.html to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants. Cooper Dec. Ex. 29 - printout from Hearsay; lacks foundation. Plaintiffs fail www.000domains.com showing that Pacific Northwest to authenticate this document. This Software is the administrative and technical contact for document is irrelevant to the issues the Records Portal domain at related to personal jurisdiction. It further https://secure.reisterapi.com/services/whois.php fails to tie any alleged acts to moving Defendants. Cooper Dec. Ex. 30 - press release from Pacific Hearsay; lacks foundation. Plaintiffs fail Northwest Software's website announcing its to authenticate this document. development deal with Chula Vista Elementary School District at www.pnswsoft.com/?page=pr/072605, dated July 26 Cooper Dec. Ex. 31- press release from Pacific Hearsay; lacks foundation. Plaintiffs fail Northwest Software's website Examkrackers at to authenticate this document. www.pnwsoft.com/?page=pr/010606, dated January 1, 2006 Cooper Dec. Ex. 32 - press release from Pacific Hearsay; lacks foundation. Plaintiffs fail Northwest Software's website announcing its to authenticate this document. development deal with Know the Course at www.pnwsoft.com/?page=pr/031406, dated March 14, 2006
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Cooper Dec. Ex. 33 - press release from Pacific Northwest Software's website announcing its development deal with City Ticket Exchange at www.pnwsoft.com/?page=pr/081006, dated August 10, 2006 Cooper Dec. Ex. 34 - Google, Inc. Advertising Program Terms at https://adwords.google.com.select/TCUbilling0806.html, dated August 22, 2006 Cooper Dec. Ex. 35 - Craigslist Terms of Use page at www.craigslist.org/about/terms.of.use.html

Hearsay; lacks foundation. Plaintiffs fail to authenticate this document.

Hearsay; lacks foundation. Plaintiffs fail to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants. Hearsay; lacks foundation. Plaintiffs fail to authenticate this document. This document is irrelevant to the issues related to personal jurisdiction. It further fails to tie any alleged acts to moving Defendants.

Respectfully submitted, Dated: July 6, 2007 FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P.

By:

/s/ Scott R. Mosko Attorneys for Pacific Northwest Software Inc. and Winston Williams

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