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).

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

Doc. 127 Att. 25

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EXHIBIT Z

Dockets.Justia.com

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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 25, 2006

TRANSCRIPT OF EVIDENTIARY HEARING (DAY 2) BEFORE THE HONORABLE ROBERT B. COLLINGS UNITED STATES MAGISTRATE JUDGE APPEARANCES: For the Plaintiff: Daniel Tighe, Esquire Griesinger, Tighe & Maffei 155 Federal Street, Suite 1700 Boston, MA 02110 [phone] 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 [phone] 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 [phone]

Court Reporter: Proceedings recorded by digital sound recording, transcript produced by transcription service.
MARYANN V. YOUNG Certified Court Transcriber 240 Chestnut Street Wrentham, Massachusetts 02093 [phone]

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For the Defendants:

Steven Bauer, Esquire Proskauer Rose, LLP One International Place Boston, MA 02110 [phone] Annette Hurst, Esquire Heller Ehrman LLP 275 Middlefield Road Menlo Park, CA 94025 650-324-7169 Daniel K. Hampton, Esquire Holland & Knight LLP 10 St. James Avenue Boston, MA 02116 617-523-2700

For Eduardo Saverin:

MARYANN V. YOUNG Certified Court Transcriber 240 Chestnut Street Wrentham, Massachusetts 02093 [phone]

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Cross - Narendra

So we're looking at Exhibit 75? No, it's, I'm sorry. I had given you the wrong number I'm sorry.

before. A Q

Oh, yeah, it is 75.

We're looking at page three on Exhibit 75? Correct. MR. CHATTERJEE: And let me just approach the witness Yes.

to make sure he has the right document. (Pause) THE WITNESS: BY MR. CHATTERJEE: Q Yes.

Can you repeat the question?

Does this refresh your recollection as to what

request for admission No. 2 was? A Q Yes. And we asked you to admit that you've accessed TheFaceBook

website for the purpose of acquiring email addresses previously registered with TheFaceBook? A Q A Q That's right. You did that in July of 2004, right? Yes. And your testimony as you sit here today is you were not a

member in 2004 at any point in time, right? A Q A Q I became a member after I signed the operating agreement. In 2005, right? In 2005. Let's go back to Exhibit No. 71. YOUNG TRANSCRIPTION SERVICES [phone]

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Cross - Narendra

MR. HORNICK: BY MR. CHATTERJEE: Q A Q 71(a). Okay. Page 5.

71(a) or b or c?

Regarding that request for admission No. 2 when you

accessed TheFaceBook for the purpose of acquiring email addresses that was in July of 2004, right? A Q What was in July of 2004? When you accessed TheFaceBook website for the purpose of

acquiring email addresses? A Q That sounds about right. And you responded in this form interrogatory, responding

party visited FaceBook's website only in its capacity as a member of ConnectU, right? A Q That's right. And you also referred to your response to request No. 2,

right? A Q A Q A Q Yes. Did you mean to incorporate that by reference? I don't remember. I didn't prepare the exact response so.

You didn't prepare the exact response? No. You understood this was your testimony?

(Pause) THE COURT: Is that a question for him?

YOUNG TRANSCRIPTION SERVICES [phone]

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Cross - Narendra

I didn't prepare this-MR. CHATTERJEE: THE COURT: Yes, I'm asking him.

It sounded like a statement. I'm sorry.

MR. CHATTERJEE: BY MR. CHATTERJEE: Q You understood-THE COURT:

Put it in the form of a question, please. Thank you, Your Honor.

MR. CHATTERJEE: BY MR. CHATTERJEE: Q

Now, Mr. Narendra, did you understand that when you signed

this under penalty of perjury this was your testimony? A Q Yes. Do you know what you meant when you wrote, see ConnectU in

response to request No. 2? MR. HORNICK: THE COURT: questioned about it. A Objection, foundation? He may be

He signed the document.

The objection is overruled.

You know, these responses were prepared by my counsel and,

you know, I, I don't remember looking sort of responding to this and looking back at another document at the same time cause the questions are in a completely different document. But I trusted my lawyers that they would have been prepared, that their responses would have been prepared accurately. BY MR. CHATTERJEE: Q So you have no idea why it says, see ConnectU's response YOUNG TRANSCRIPTION SERVICES [phone]

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Cross - Narendra

to request No. 2? A Q 2? A Q A Q Not at the time when I signed this, no.

Do you know if you verified your responses to request No.

I signed the document, is that what you're referring to-Not-Or we talking about---not the form interrogatories. Well I need to ask you

when it says see ConnectU's response to request No. 2, are you referring to ConnectU's response to request for admission No. 2 or your response to request for admission No. 2? referring to? A Again, when I signed this document I trusted my lawyers What are you

prepared it accurately and, you know, again all the questions are on different ­ it's fairly confusing. All the questions

are not on this document so, you know, when I signed this is didn't see what the exact questions were for each one of these responses. Q You didn't have any issue with your lawyers writing that

you visited TheFaceBook's website only in your capacity as a member of ConnectU, right? A Q A Q Yeah, I didn't have an issue with that. And you haven't accessed TheFaceBook in 2005? No. All of your accesses were in 2004, right? YOUNG TRANSCRIPTION SERVICES [phone]

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Cross - Narendra

That's right. You didn't say, hey, this is inaccurate.

member, I wasn't a member in 2004? A Well, I signed this document after the operating agreement

was signed which would have made me a retroactive member of ConnectU. Q Right. So your testimony is when you accessed the website

in July of 2004, you weren't a member at the time but the operating agreement retroactively transformed you into one? A In my deposition I think it was in June I stated that,

that my response to I think it was the amended response to form interrogatory 14, I forget the exact document but, basically I said that it was misleading that, or that the, you know, the response could have been misread or misinterpreted. Q A Q A Q A Q This one too? No, I didn't say that. This one's accurate? I think now it's accurate, yes. Now it is accurate? Yeah, I think it's accurate. That in July of 2004 when you accessed TheFaceBook website

you were a member? A Q Yes. Okay, thank you. MR. CHATTERJEE: One moment, Your Honor.

YOUNG TRANSCRIPTION SERVICES [phone]

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THE COURT:

MR. CHATTERJEE: Defendants' Exhibit 71. THE COURT:

Your Honor, I seek to introduce

And that is the form interrogatories? Correct.

MR. CHATTERJEE: THE COURT:

Any objection? Your Honor, the witness has only been

MR. HORNICK:

asked questions about A, the form interrogatory and A. MR. CHATTERJEE: I'm happy to question him about B

THE COURT:

Well, did he sign B and C? One of the has an established

MR. CHATTERJEE: foundation. THE COURT:

Oh, wait a minute, just. He did.

MR. CHATTERJEE: THE COURT:

If he signed them, you know, unless

there's a relevance question they're coming in. MR. CHATTERJEE: I think there's just A and B. I

think there's just A and B by the way. MR. HORNICK: A and B, if they've both have been

signed then we have no objection. (Pause) MR. HORNICK: As I understand it, 71 is made up of

the form interrogatories which don't have a Tab and then YOUNG TRANSCRIPTION SERVICES [phone]

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 brief. A Q Yes.

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Cross - Narendra

Thank you.

Now your expectation was that you would gain

somehow if the ConnectU project was successful, right? A Q That's right. And that you would get what you deserved with respect to

the ConnectU website, right? A That's right. MR. CHATTERJEE: pass the witness. THE COURT: THE CLERK: All right. All rise. (RECESS) THE CLERK: THE COURT: Cross-examination? MR. HAMPTON: Thank you, Your Honor. I will be very All rise. Court is back in session. We'll take a recess till 11. No further questions, Your Honor. I

All right, you may be seated.

THE COURT: BY MR. HAMPTON: Q A Q A Q

You may proceed.

Good morning, Mr. Narendra. Good morning. We've met before at your depositions; is that right? That's right. And you understand I'm Dan Hampton and I represent in the

case Eduardo Saverin. YOUNG TRANSCRIPTION SERVICES [phone]

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Cross - Narendra

That's correct. Mr. Narendra, if Mr. Chatterjee's client, TheFaceBook,

went back to California tomorrow and sued you again personally for accessing TheFaceBook website in July of 2004, you'd go right back to the California court and tell them again that when you did that you were acting in your capacity as a member of ConnectU LLC, wouldn't you? A Q Yes. And so, Mr. Narendra, what you're suggesting is that for

the purposes of the California lawsuit ­ that's because of the operating agreement, am I right about that? That's the reason

why you can tell the California court that you were a member of ConnectU LLC in July of 2004 or were you actually a member in July of 2004? A Q I became a member when I signed that agreement. All right. So it's the retroactive nature of the

agreement that allows you to go to the California court and tell them that in July of 2004 you were a member of ConnectU LLC? A Q That's right. And so what you're suggesting here today is that the

retroactive nature of the operating agreement, that's good for the California case where you get the benefit of getting out as a personal defendant but that's not what the court should do here. You weren't really a member on September 2nd of 2004 when YOUNG TRANSCRIPTION SERVICES [phone]

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Redirect - Narendra

this case was filed? A I was not a member September 2, 2004 when - or on

September 2, 2004 I was not a member. MR. HAMPTON: THE COURT: No further questions.

Mr. Hornick, any redirect? Yes, just a few questions, Your Honor.

MR. HORNICK:

REDIRECT EXAMINATION BY MR. HORNICK: Q Do you recall testifying earlier that up until the time

that ConnectU LLC was formed you and Cameron and Tyler had contributed roughly equally to the Harvard Connection website? A Q That's right. All right. Now when ConnectU LLC was created was it your

intent to continue the same arrangement the three of you had with Harvard Connection into ConnectU LLC? MR. CHATTERJEE: Your Honor, asked and answered and

outside the scope of the cross. THE WITNESS: THE HORNICK: THE COURT: Can you repeat the question? Yes.

Well, repeat the question. Oh, sorry.

THE WITNESS: THE COURT:

I'm sorry. Yes.

MR. HORNICK: BY MR. HORNICK: Q

When ConnectU LLC was created, was it your intention to YOUNG TRANSCRIPTION SERVICES [phone]

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Redirect - Narendra

was it your intention to continue the same arrangement that

you had with the Harvard Connection website into ConnectU LLC? A For the very, very early stages of ConnectU the

ConnectU.com website, there was still a bit of, you know, let's share the costs equally, as heard as evidenced by that, you know, with the second check. But pretty soon after that that

put me, you know, that one-third, one-third, one-third type sort of allocation, you know, changed a lot. So, and pretty

quickly it became clear that I was not going to be sharing sort of the expenses of the product at the same rate as they would. Q Well after you put in that $10,000, did you put any more

money into ConnectU LLC? A Q No. I'd like to direct your attention to the Defendants'

Exhibit 71 which is in one of those books before you. (Pause) MR. HORNICK: THE COURT: May I assist the witness, Your Honor?

Yes.

BY MR. HORNICK: A I've put before you the Defendants' Exhibit 71 before the During your cross-

Tab so it's just 71, not 71(A) or B.

examination you were asked if you'd seen this document before. Do you recall your answer? A Yes. YOUNG TRANSCRIPTION SERVICES [phone]

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Redirect - Narendra

What was your answer? I said that I had not seen this document until very

recently during my last deposition. Q So when you were asked to sign the form interrogatory

answers-A Q Right. --did you have this Exhibit 71, the actual form

interrogatories at that time? A No, I did not. THE COURT: Are you saying you didn't know what

questions you were answering? THE WITNESS: No, I mean, I, I basically trusted that I had never

my lawyers would have given the right answers. seen this document? THE COURT:

I mean, it just seems very odd that you

would sign answers under pains and penalties of perjury to questions you'd never seen, but go ahead. BY MR. HORNICK: Q sign? A Q Yes. Did you understand that they might be taking certain legal Did you trust your lawyers to provide answers for you to

positions that could be reflected in those answers? A Q That's right. And you trusted that whatever answers were provided were YOUNG TRANSCRIPTION SERVICES [phone]

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Redirect - Narendra

consistent with those legal positions? THE COURT: You're asking leading questions.

MR. HORNICK: THE COURT: BY MR. HORNICK: Q

All right.

This is redirect.

Did you understand that the answers you were asked to sign

were consistent with your lawyers' legal positions? A Q Yes. Now on cross-examination you were asked about some request

for admissions that ­ during cross-examination were you asked about certain requests for admissions that you signed in connection with the California case? A Q Yes. All right. And during cross-examination were you asked

about certain special interrogatory answers that you were asked to sign in connection with the California case? MR. CHATTERJEE: questions too. THE COURT: Were you asked ­ how does that suggest an That's not a Your Honor, these are leading

He's either going to answer yes or no.

leading question. MR. HORNICK: Your Honor, I might also point out that

Rule 611(c) allows me to ask leading questions to move the testimony along. This isn't the real point. YOUNG TRANSCRIPTION SERVICES [phone] I'm trying to get

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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 17, 2006

YOUNG TRANSCRIPTION SERVICES [phone]