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

Filing 127

Declaration of I. Neel Chatterjee in Support of Facebook's Motion for Sanctions 126 filed by Mark Zuckerberg, The Facebook, Inc. (Attachments: # 1 Exhibit Notice re Under Seal Exs. J, U, BB, CC, DD, and EE# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit V# 22 Exhibit W# 23 Exhibit X# 24 Exhibit Y# 25 Exhibit Z# 26 Exhibit AA# 27 Exhibit FF# 28 Exhibit GG# 29 Exhibit HH# 30 Exhibit II# 31 Exhibit JJ# 32 Exhibit KK# 33 Exhibit LL# 34 Exhibit MM# 35 Exhibit NN# 36 Exhibit OO# 37 Exhibit PP# 38 Exhibit QQ# 39 Exhibit RR# 40 Exhibit SS# 41 Exhibit TT# 42 Exhibit UU# 43 Exhibit VV# 44 Exhibit WW# 45 Exhibit XX# 46 Exhibit YY)(Related document(s) 126 ) (Chatterjee, I.) (Filed on 8/22/2007) Text modified on 8/24/2007 to conform to document caption post by counsel (bw, COURT STAFF).

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The Facebook, Inc. v. Connectu, LLC et al Doc. 127 Att. 24 Case 5:07-cv-01389-RS Document 127-25 Filed 08/22/2007 Page 1 of 18 EXHIBIT Y Dockets.Justia.com Case 5:07-cv-01389-RS Document 127-25 Filed 08/22/2007 Page 2 of 18 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CONNECTU LLC Plaintiff . . . V. . . MARK ZUCKERBERG, et al . Defendants . ................ CIVIL ACTION NO. 04-11923-DPW BOSTON, MASSACHUSETTS OCTOBER 24, 2006 TRANSCRIPT OF EVIDENTIARY HEARING BEFORE THE HONORABLE ROBERT B. COLLINGS UNITED STATES MAGISTRATE JUDGE APPEARANCES: For the Plaintiff: Daniel Tighe, Esquire Griesinger, Tighe & Maffei John F. Hornick, Esquire Margaret A. Esquenet, Esquire Meredith Schoenfeld, Esquire Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 901 New York Avenue, N.W. Washington, DC 20001 (202) 408-4000 For the Defendants: G. Hopkins Guy, III, Esquire I. Neel Chatterjee, Esquire Monte cooper, Esquire Orrick, Herrington & Sutcliffe LLP 1000 March Road Menlo Park, CA 94025 (650) 614-7400 Court Reporter: Proceedings recorded by digital sound recording, transcript produced by transcription service. For the Defendants: Jeremy P. Oczek, Esquire MARYANN V. YOUNG Certified Court Transcriber 240 Chestnut Street Wrentham, Massachusetts 02093 (508) 384-2003 Case 5:07-cv-01389-RS Document 127-25 Filed 08/22/2007 Page 3 of 18 Steven Bauer, Esquire Proskauer Rose, LLP One International Place Boston, MA 02110 (617) 526-9600 MARYANN V. YOUNG Certified Court Transcriber 240 Chestnut Street Wrentham, Massachusetts 02093 (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q Document 127-25 Filed 08/22/2007 Page 4 of 18 I - 204 I believe we did include him, yes. And the position of ConnectU was that all of the actions taken by ConnectU or taken by Mr. Narendra were on behalf of ConnectU, right? A Yes, but I think I should probably clarify that, that that-Q A Q A Q A Q Your counsel can ask you that. Okay. That was the position-Sure. --taken by ConnectU, right? Yes. And the actions that were taken by Mr. Narendra were in 2004, right? A Q Some actions may have been, yes. The actions were taken in 2004 that ConnectU is taking the position they should have responsibility for it because Mr. Narendra was doing it on its behalf? A Q I think some actions, yes, were taken on 2004. Thank you very much. Now there was discovery in that case? I believe there's been some discovery, yes. Okay. And in that case there was discovery about the membership of ConnectU, right? A I'm not sure I recall exactly. YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Document 127-25 Filed 08/22/2007 Page 5 of 18 I - 205 Well, let's take a look at the hearing Exhibit No. 80. And if my colleagues could provide Mr. Narendra the copy of the exhibit number. (Pause) BY MR. CHATTERJEE: Q A Q A Q A Q A Q Do you see that Mr. Winklevoss? Yes, No. 8? 8-0. Or 8-0, 80. Okay. Is Exhibit No. 80's a declaration from you? Sorry, that's a question or? Yes. You're asking me if it's a declaration? Yes. MR. CHATTERJEE: 80's a-- It does not look to be a declaration. BY MR. CHATTERJEE: Q Oh. Well let me give you if you take a look at request for production No. 19. A Okay. THE COURT: This is in Exhibit 80 or not? This is in Exhibit 80, I'm sorry. MR. CHATTERJEE: THE COURT: Okay. Mine were organized slightly MR. CHATTERJEE: differently. YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document 127-25 Filed 08/22/2007 Page 6 of 18 I - 206 THE WITNESS: where to go. Okay, so I'm a little confused I'm looking at 80 right now. BY MR. CHATTERJEE: Q A Q 80. A Q Okay. Now request for production No. 19 asked you to produce all If you look at request No. 19-Oh, okay. Okay. There's a request in there. This is Exhibit No. documents related to current and former directors, officers, employees and agents of ConnectU, including members, managers and board managers as defined in the limited liability company operating agreement of ConnectU LLC. We gave some Bates ranges, Harvard Connect and Winklevoss companies, including documents relating to dates in these positions, duties, authorities and responsibilities. A Q Yes, I do. Okay. Now in response to that there was a motion to Are you aware of that? Do you see that? compel filed, right? A Q A Q A Q Yes. And following that there was a court order? Yes. You know that, right? Yes. And in fact in that court order there was a requirement YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document 127-25 Filed 08/22/2007 Page 7 of 18 I - 207 that you produce a declaration that set forth that you had made a complete production in response to that document request, right? A Q A Q Yes. And Exhibit 83 is that declaration, right? That's correct, yes. And you specifically reference in paragraph 19 your This is the-- response, right? A Q A Q Yes. --this is following quarter. Yes. You did a diligent search. You produced all of the relevant documents that were responsive to that request, right? A Q Yes. Now, what I've done with Exhibit 83, Mr. Winklevoss, is I took all of the documents that were cited there by Bates number. A Q You now what a Bates number is, right? Sort of. Okay. A Bates number are these actual numbers that are You find them typically on the bottom identified on here. right hand corner of the document. A Right. THE COURT: would you focus it-MR. CHATTERJEE: Yes. You know if you're going to use that YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document 127-25 Filed 08/22/2007 Page 8 of 18 I - 208 THE COURT: --and stop moving it around. And I'm sorry, Your Honor, this is MR. CHATTERJEE: kind of sliding off. THE COURT: You're getting me dizzy. I apologize. MR. CHATTERJEE: BY MR. CHATTERJEE: Q Now, Mr. Winklevoss, with respect to Exhibits 41 40, 41 and 42, can you show me where in that collection of documents any of those documents can be found? A Q A I-Feel free to look through them. I don't know the Bates numbers off the top of my head. Is that what you're asking me? Q A Q I'll represent to you Mr. Winklevoss, I've gone-Okay. --through each and every one of the Bates numbered You can documents and I put them in that stack right there. look through them and see if you can find Exhibit 40, 41 or 42. A So you want me to look through the whole binder? THE COURT: contained in there? MR. HORNICK: Your Honor, these documents that I Is there any dispute that these are not believe that Mr. Chatterjee is going to be talking about were produced after this discovery request was signed, and we have an agreement in the two cases that any documents from any case YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do. Document 127-25 Filed 08/22/2007 Page 9 of 18 I - 209 can be used in either case. So even if they weren't produced in the California case-THE COURT: No---they can be used. MR. HORNICK: THE COURT: want he wants to do. --no, I just want to know let him do Is there any dispute that these are not within that category of documents? MR. CHATTERJEE: THE COURT: Your Honor, I'll represent to you-- No, I'm asking Mr. Hornick. Oh. I don't know MR. CHATTERJEE: MR. HORNICK: I don't know, Your Honor. what these documents here are. I'm not working on that case. I'm not really working on that, I don't know what these documents are just by looking at these numbers. MR. CHATTERJEE: quite simple. THE COURT: Oh, I understand what you're trying to Your Honor, the premise here is I'm just, rather than having him look through all of them to see if they're there, which might take a little bit of time, and I was trying to shortcut things. MR. CHATTERJEE: a single one of them is. THE COURT: Well, I know, but you don't get you're And I'll represent to Your Honor not not testifying and you're not under oath and you're not going to be testifying, you're not going under oath. YOUNG TRANSCRIPTION SERVICES (508) 384-2003 So how do you Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 minute. produced? want to do it? Document 127-25 Filed 08/22/2007 Page 10 of 18 I - 210 MR. CHATTERJEE: Well, I would like him to confirm that not a single one of these documents that he's now relying on as a member is it that, in the production that he made under court order. MR. HORNICK: Then, Your Honor, I would have to ask that the witness be able to look at each one of those documents that he is being asked are not there, and then he should be able to testify as to when those documents were produced because they hadn't been produced at the time this document request had been submitted. THE COURT: What do you mean they hadn't been MR. HORBICK: They hadn't been found. These documents were not covered by discovery requests in the they were not covered by discovery requests in this case, this Massachusetts case. MR. CHATTERJEE: THE COURT: Your Honor-- No, wait a minute, wait a minute, wait a MR. HORNICK: THE COURT: And then when this-- No, he's asking about a discovery request, an order that was made in California, the California case. Now, what do you-MR. HORNICK: I understand that, Your Honor, but YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document 127-25 Filed 08/22/2007 Page 11 of 18 I - 211 documents they did the search they did and they produced the documents they had and these documents were found later and they were produced later. THE COURT: they're not within-MR. HORNICK: I think I know which one he's talking So they were not, so you're agreeing that about, but I don't really now which documents he's getting at. And I also don't know whether these documents in this discovery request, these Bates numbers are California case Bates numbers or Massachusetts case Bates numbers. MR. CHATTERJEE: what to do here. Narendra. Your Honor, frankly, I don't know The issue is the membership of Divya The only documents that they're relying upon were things that Mr. Winklevoss did not find under court order for a reasonable diligent search. THE COURT: All right, well, I don't think there's any wait a minute, wait a minute, I don't think there's any need for him I mean they're either in there or they're not in there, and I think that can be established without him sit, without us sitting here at 10 of four having him go through each-MR. CHATTERJEE: THE COURT: Okay. He may have the --each document. opportunity to do so, and we'll bring him back if necessary to testify but I'm not going to sit here and have him do it now. YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document 127-25 Filed 08/22/2007 Page 12 of 18 I - 212 So let's move on. MR. CHATTERJEE: Okay. Thank you, Your Honor. And the reason for that just so we're clear-THE COURT: Oh you don't have to tell me the reason. Well-I know where MR. CHATTERJEE: THE COURT: you're going. MR. CHATTERJEE: THE COURT: I know what the reason is. Okay. Let's move on. Okay. And, Your Honor, so we're MR. CHATTERJEE: going to have to maintain our objection to the admission of the documents that have not yet been admitted because he said they're business records. be in that production. THE COURT: Well, I don't think that objection if The If they're business records they'd that's your only objection then I'm going to overrule it. only one I think that hasn't been admitted is 41, right? COUNSEL: Right. Right. Well I if that's your THE COURT: objection, I overrule it and I admit Exhibit 41. MR. CHATTERJEE: THE COURT: Thank you, Your Honor. Now was that the only purpose for which you were going through this exercise or you had another purpose in mind I take it? MR. CHATTERJEE: I think I made my purpose, Your YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document 127-25 Filed 08/22/2007 Page 13 of 18 I - 254 THE COURT: Any objection? I can take them now? MR. HORNICK: Your Honor, the witness was not able to authenticate the letters that were being asked about in the testimony. MR. CHATTERJEE: It's Exhibit 65 and 64. THE COURT: 65 and 64, which is-In fact there was never any foundation I'm sorry, Your Honor, I misspoke. MR. HORNICK: laid on those letters. THE COURT: complaints. MR. HORNICK: complaints. MS. ESQUENET: MR. HORNICK: amended complaint. They weren't the letters, they were Well, they were attached to the They were attached. It was all-- The letters were attached to the THE CHATTERJEE: Your Honor, they were cc'd to ConnectU LLC and it was on behalf of ConnectU. THE COURT: Yeah. They're being offered against I'm going ConnectU, they're attached to ConnectU's complaint. to admit them. (Defendant's Exhibit Nos. 64 and 65, admitted) MR. CHATTERJEE: Your Honor, I'd also like to offer into evidence Exhibit 67, which was the interrogatory response from this case that I referred to. YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Eighty-- Document 127-25 Filed 08/22/2007 Page 14 of 18 I - 255 THE COURT: All right, any objection to that? No, Your Honor. No objection. MR. HORNICK: THE COURT: All right, that's admitted. (Defendant's Exhibit No. 67, admitted) MR. CHATTERJEE: And then, Your Honor, my understanding is you were going to submit Exhibit 83 which was the declaration with the attached documents. that into evidence. THE COURT: All right, wait a minute now. I'd like to offer MR. CHATTERJEE: Exhibit 83 was the declaration of ConnectU LLC for all of the documents that were-THE COURT: Oh right, right, right. Yeah, I'm going to ask that I'm not going to excuse Mr. Cameron Winklevoss as a witness overnight. He's to go through the documents as Mr. Hornick wished him to do and then to answer the question as to whether they were included in the documents he listed in response to that interrogatory. MR. CHATTERJEE: MR. HORNICK: to know are in there? MS. HURST: Your Exhibits 40, 41 and 42. And particularly the handwritten Thank you very much, Your Honor. What documents particularly do you want MS. CHATTERJEE: documents that he's relied upon to show membership. THE COURT: Well wait a minute, wait a minute. We YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document 127-25 Filed 08/22/2007 Page 15 of 18 I - 256 want is it forty-MS. HURST: THE COURT: referring to. It is, Your Honor, Ms. Hurst-Let's get the specific documents you're Exhibits-Plaintiff's exhibits 40, 41 and 42-Correct. MS. HURST: MS. CHATTERJEE: MS. HURST: --which are the two Connecticut registration applications and the bank card. MR. CHATTERJEE: THE COURT: Correct. All right, 40, 41 and 42, Mr. Hornick. And whether they're in Exhibit 83 is MR. HORNICK: the question? THE COURT: No, the question is whether they are among the documents listed in that declaration as having been produced. MR. HORNICK: THE COURT: In 83? Yeah. Yes. Mr. Chatterjee-- MR. HORNICK: THE COURT: It is 83, isn't it? Yes. MR. CHATTERJEE: THE COURT: --83? Yes. MR. CHATTERJEE: THE COURT: Okay. Your Honor, we can stipulate that MR. HORNICK: they're not there. YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document 127-25 Filed 08/22/2007 Page 16 of 18 I - 257 THE COURT: about earlier. Well, that's what I was asking you MR. HORNICK: That's what I was saying, they were produced after this was created so they couldn't have been there. THE COURT: about that. All right. Then we don't have to worry It's stipulated that they're not included in the documents listed in the declaration. MR. CHATTERJEE: THE COURT: Thank you, Your Honor. That takes care of that problem. Okay. Okay, questions by counsel for Saverin? MR. HURST: BY MS. HURST: Q Good afternoon, Mr. Winklevoss. My name is Annette Hurst, I think we've met Yes, briefly, Your Honor. and I'm an attorney for defendant Saverin. before, hello. A Q Hi. If you could turn to Exhibit 12 in the defendant's exhibit binder. (Pause) A Okay. BY MS. HURST: Q In or about April 2004 were you familiar with a person named Mark Perot? A Yes. YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q Document 127-25 Filed 08/22/2007 Page 17 of 18 I - 258 And who was Mr. Perot? He was an employee of Imark. And you were involved with him in connection with Imark's work in developing first the Harvard Connection then later the ConnectU website, correct? A Q That's correct. I've marked or we've marked as Exhibit 12 an email from Do you see that, that email Mr. Perot to you and Mr. Narendra. at the bottom of Exhibit 12? A Q Yes. And is that an email that you received from Mr. Perot on or about April 5, 2004? A Q That's correct. In the email Mr. Perot was making a recommendation to you that you create a legal entity for your business, correct? A Q Yes. He actually went on to describe a procedure whereby you could do it online and recommended the specific form of entity of an LLC, correct? A Q That's correct. And then that very same day, in fact shortly thereafter you responded to his email, correct? A Q Yes. And your response on April 5, 2004 at approximately 10:12 a.m. is marked at the top of Defendant's Exhibit 12, YOUNG TRANSCRIPTION SERVICES (508) 384-2003 Case 5:07-cv-01389-RS Document 127-25 Filed 08/22/2007 Page 18 of 18 I - 314 CERTIFICATION I, Maryann V. Young, court approved transcriber, certify that the foregoing is a correct transcript from the official digital sound recording of the proceedings in the above-entitled matter. __________________________ Maryann V. Young__________ November , 2006 YOUNG TRANSCRIPTION SERVICES (508) 384-2003

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