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

Filing 221

Declaration of Scott R. Mosko in Support of Defendants Winston Williams and Pacific Northwest Software, Inc.'s Opposition to Plaintiffs' Motion to Compel Supplemental Responses to Interrogatory Nos. 3 and 4 filed by Pacific Northwest Software, Inc., Winston Williams. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4-A# 5 Exhibit 4-B# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8)(Mosko, Scott) (Filed on 11/7/2007) Text modified on 11/8/2007 (bw, COURT STAFF).

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

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EXHIBIT 6

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Holderfield, Randal
From: Sent: To: Subject:
Yvonne, If the files Please explain how you believe the responses were "incomplete" or "evasive". identified by Mr. Williams in his deposition provides additional information that is responsive to the interrogatories you have identified in your email, I suspect that some The investigation of this information is continuing, of those responses will be amended. as I have stated. I am happy to discuss these matters further with you, and perhaps you can enlighten me as to where you find support for your allegations, given the circumstances.

Mosko, Scott Wednesday, October 17, 2007 11:16 AM `Greer, Yvonn& RE: Supplemental Interrogatory Responses

Scott R. Mosko Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 3300 Hillview Avenue Palo Alto, California 94304-1203 PH: 650--849--6672 FAX: [phone] EMAIL: [e-mail] Original Message From: Greer, Yvonne [mailto : ygreer8orrick. corn] Sent: Wednesday, October 17, 2007 11:00 AN To: Mosko, Scott Cc: Sutton, Theresa A.; Cooper, Monte; Dalton, Amy Subject: RE: Supplemental Interrogatory Responses Scott: PNS and Mr. Williams' response to Facebook's First Set of Interrogatories Nos. 3 and 4 were incomplete and evasive in light of Mr. We have sought Williams' deposition testimony and other documentation. supplementation since July with no definitive response from you as to Facebook has no other choice at this whether Defendants would do so. point but to seek assistance from the Court. We will re-set the hearing date for November 28, Yvonne Original Message From: Mosko, Scott [mailto: scott .mosko@finnegan. corn] Sent: Wednesday, October 17, 2007 10:16 AN To: Greer, Yvonne Subject: RE: Supplemental Interrogatory Responses Yvonne, The Wednesday before Thanksgiving is not convenient for me, out of town. as I will be 2007.

Please convey my apologies to Theresa for not responding to her email During Mr. As I understand the issue: from last week before now. Williams' testimony, he provided a response that suggested documentation Theresa concerning emails could be found on a particular server at PNS. As I have indicated, this issue has inquired about this information. We have located some files on the taken some time to investigate. 1

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server identified by Mr. Williams, but given its organization, it is unclear whether any of these files contains information that is responsive to the document requests. We are working with all due diligence to make this determination. It is not as simple as opening the file to see what is in it. Once we make this determination, we will either amend our responses or advise you that the current responses are accurate. Are you aware of other discovery issues that are outstanding? Thank you... Scott R. Mosko Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 3300 Hillview Avenue Palo Alto, California 94304--1203 PH: 650--849--6672 FAX: [phone] EMAIL: scott mosko(finnegan. corn
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Original Message----From: Greer, Yvonne [rnailto :ygreer@orrick. corn) Sent: Tuesday, October 16, 2007 6:39 PM To: Mosko, Scott Cc: Sutton, Theresa A.; Dalton, Amy; Cooper, Monte Subject: Supplemental Interrogatory Responses Scott: Facebook intends to file a motion to compel with a hearing date scheduled for November 21, 2007 at 9:30 a.rn. Please confirm that you are available on that date. Also, Facebook requests that PNS and Williams de-designate as confidential PNS01763 and Winston Williams' deposition testimony at This document and specific deposition 157:10--157:12 and 159:23-160:5. testimony does not specifically refer to confidential matters within the scope of the protective order.

From: Sutton, Theresa A. Sent: Thursday, October 11, 2007 12:32 PM To: Mosko, Scott Cc: Greer, Yvonne; Cooper, Monte; Dalton, Amy Subject: RE: Supplemental Interrogatory Responses

ScottWould you please give me an estimate on when this investigation is expected to be complete? We would like to resolve this issue soon. Please also confirm whether Mr. Williams and PNS intend to supplement their interrogatory responses. Theresa

0 ORR IC K Theresa A. Sutton Orrick, Herrington & Sutcliffe LLP Silicon Valley Office 1000 Marsh Road, Menlo Park, CA 94025 650.614.7307 (Voice) 2

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650.614.7401 (Fax) tsutton@orrick. corn www. orrick. corn

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From: Mosko, Scott [mailto:[e-mail]] Sent: Thursday, October 04, 2007 1:28 PM To: Sutton, Theresa A. Subject: RE: Supplemental Interrogatory Responses

Theresa, Further to my statement that I would be following up with Mr. Taves, based on the testimony provided by Mr. Williams, Mr. Taves has located We are in the process of additional files that may concern ConnectU. Once we are able to open these files, if we investigating these files. find anything in them that is responsive to Plaintiffs' document requests we will produce it, assuming it is not otherwise privileged.

Scott R. Mosko Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 3300 Hillview Avenue Palo Alto, California 94304--1203 PH: 650--849--6672 FAX: [phone] EMAIL: [e-mail] <mailto:scott [e-mail]>

From: Mosko, Scott Sent: Friday, September 14, 2007 9:24 AM To: `Sutton, Theresa A. Subject: RE: Supplemental Interrogatory Responses

Theresa, I have previously asked the Orrick firm not set arbitrary Moreover, demands as set deadlines, as you have in this email string. forth in this string, with the apparent attempt to conclude that meet and confers have been completed do not qualify as meet and confers under the local rules. In any event, as I understand your email, you are seeking As s that can only be provided by having access to PNS servers. detail Mr. Williams has testified, he has not provided services to PNS for some He provided He does not have access to any of the PNS equipment. time. Facebook whatever details he could remember in his written responses. At best, I then took his deposition and inquired about the topics. could provide a declaration from Mr. Williams saying he has no further information to the discovery than what has already been provided. Regarding PNS, it was my understanding that Mr. Taves performed a detailed search, which included the servers mentioned by Mr. Williams All existing files that concerned Facebook were in his deposition. My understanding, as I stated before, is that Mr. Taves is duced. pro As I previously stated, I will confirm my out of the country. understanding as soon as Mr. Taves is available. Scott R. Mosko Finnegan, Henderson, Farabow, Garrett & Dunner, 3 LLP

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3300 Hiliview Avenue Palo Alto, California 94304--1203 PH: 650--849--6672 FAX: [phone] EMAIL: scott mosko@finnegan, corn <mailto: scott .rnosko@finnegan. corn>
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Frorn: Sutton, Theresa A. [rnailto:[e-mail]) Sent: Wednesday, September 12, 2007 1:51 PM To: Mosko, Scott Cc: Cooper, Monte; Greer, Yvonne; Dalton, Mty Subject: RE: Supplemental Interrogatory Responses

Scott PNS and Mr. Williams refused to respond to Interrogatories 3-4 as written. Interrogatory 3 to both Defendants requires each of them to identify from what tJRL or IP Address they accessed the Facebook website, to state the reasons for their access of the Facebook website, and to identify the dates such access occurred. PNS refused to answer altogether, and Mr. Williams only provided IP addresses for the PNS server. Interrogatory 4 requires PNS to identify the dates it distributed email communications to Facebook email accounts, and the addresses of all such email accounts associated with California. PNS again refused to answer altogether, and Mr. Williams provided a generic (and inaccurate) explanation of how he claims emails were distributed. Both Defendants' responses are evasive and incomplete. Supplementation requires: (1) the exact URL and IP addresses from which any employee, agent or consultant of PNS accessed Facebook; (2) a statement of all the reasons for such access of the Facebook website; (3) the identity of the specific dates for such access; (4) the dates emails were distributed to Facebook; and (5) the California email accounts to which such emails were sent. Please confirm no later than by 12:00 p.m. POT tomorrow that PNS and Mr. Williams will provide such information, and state the date (no later than October 27) that such supplementation will be provided. We believe the information is available to PNS and Mr. Williams, and that they are required to make all reasonable efforts to provide complete and responsive answers. See Fed.R.Civ.P. 33(a). If they deny the information exists, we will move to compel, including compelling forensic imaging to recover the missing information. Theresa

0 ORR IC K Theresa A. Sutton Orrick, Herrington & Sutcliffe LLP Silicon Valley Office 1000 Marsh Road, Menlo Park, CA 94025 650.614.7307 (Voice) 650.614.7401 (Fax) tsutton@orrick. com 4

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From: Mosko, Scott [mailto:[e-mail]) Sent: Wednesday, September 12, 2007 10:34 AN To: Sutton, Theresa A. Subject: RE: Supplemental Interrogatory Responses

Theresa, Instead, I am First, I did not "confirm" anything. It is understand your objection to the discovery responses. trying to You identified unclear to me what kind of supplement you are seeking. I understood from this certain testimony provided by Mr. Williams. that you are asking me to check whether the information to citation In my previous discussions which Mr. Williams referred is available. with PNS, I understood that all information regarding Facebook was Given your citation to testimony, I am attempting to confirm produced. I will respond once I have whether additional files are available. more information. Scott R. Mosko Finnegan, Henderson, Farabow, Garrett & Dunner, 3300 Hiliview Avenue Palo Alto, California 94304-1203 PH: 650--849--6672 FAX: [phone] EMPJL: scott .mosko@finnegan. corn <rnailto: scott mosko@finnegan. corn>
.

LLP

From: Sutton, Theresa A. [mailto: tsuttonorrick. corn) Sent: Tuesday, September 11, 2007 5:36 PM To: Mosko, Scott Cc: Cooper, Monte; Greer, Yvonne; Dalton, Amy Subject: RE: Supplemental Interrogatory Responses ScottYou do not address Mr. Williams supplementation, which confirms he does not intend to amend his Further, the issues raised by the deficiencies are not responses. merely related to the IP address but ratherinformation that has been In light of the fact PNS and Mr. available to PNS at all times. Williams previously declined to supplement, we see no reason to wait for Mr. Taves to return. We will move to compel, as previously discussed and referenced in earlier correspondence. There s a

0 0RRICK Theresa A. Sutton 5

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Orrick, Herrington & Sutcliffe LLP Silicon Valley Office 1000 Marsh Road, Menlo Park, CA 94025 650.614.7307 (Voice) 650.614.7401 (Fax> tsutton@orrick, corn www. orrick. corn

From: Mosko, Scott [mailto: scott .moskofinnegan. corn] Sent: Tuesday, September 11, 2007 2:21 PM To: Sutton, Theresa A. Subject: RE: Supplemental Interrogatory Responses Theresa, I am advised that John Taves is out of the ountry and therefore is not immediately available to confirm whether c the IP address mentioned by Winston Williams in his deposition is a As soon as I have some information source for additional information. Nevertheless, before any motion to about this, I will be in touch. compel is filed, I would suggest you review the language you cited to me. Scott R. Mosko Finnegan, Henderson,
LLP

Farabow, Garrett & Dunner, 94304--1203

3300 Hillview Avenue Palo Alto, California PH: 650--849--6672
FAX: [phone]
.

EMAIL: scott mosko@finnegan. corn lto: scott. mosko@finnegan. corn> <mai

From: Sutton, Theresa A. [mailto: [e-mail]] Sent: Monday, September 10, 2007 1:05 PM To: Mosko, Scott Cc: Cooper, Monte; Dalton, Jmy; Greer, Yvonne Subject: RE: Supplemental Interrogatory Responses ScottYou can refer to Mr. Williams transcript at 159:4--160:20 and 201:2--205:20. deposition You also can refer to Monte's June 29 email, CUCA02972. email to you, both of which I've attached. See also and my July 17,

I do not believe that Mr. Williams' m PNS absolves either from their discovery obligations. departure fro Please let Monte or me know if PNS and will supplement their responses. Mr. Williams 6

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Theresa

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0 ORR IC K Theresa A. Sutton Orrick, Herrington & Sutcliffe LLP Silicon Valley Office 1000 Marsh Road, Menlo Park, CA 94025 650.614.7307 (Voice) 650.614.7401 (Fax) tsutton@orrick. corn www. orrick. corn

From: Mosko, Scott nosko@finnegan. corn] [mailto: scott .r Sent: Monday, September 10, 2007 11:38 AM To: Sutton, Theresa A. Subject: RE: Supplemental Interrogatory Responses Theresa, Please send me a more detailed email request as it concerns interrogatory responses. concerning your i.e. page and line Specifically, what testimony are you referring to ( As you should look into the circumstances. I will number, please)? I am e. illiams has not been part of PNS for quite some tim know, Mr. W in investigating its records for satisfied that PNS did a thorough job However, if there is some the purposes of responding to discovery. ocation at PNS that might information that you believe sheds light on a l information, please let me know, and I provide additional responsive will investigate. Scott R. Mosko Finnegan, Henderson, Dunner, LLP Farabow, Garrett &

3300 Hiliview Avenue Palo Alto, California 94304--1203 PH: 650--849--6672 FAX: [phone] EMAIL: scott .mosko@finnegan. corn <mailto: scott .mosko@finnegan corn>
.

From: [mailto: tsutton@orrick. corn] 10:50 AN Yvonne; Dalton, Amy Interrogatory Responses

Sutton, Theresa A. September 10, 2007

Sent: Monday,

To: Mosko, Scott Cc: Cooper, Monte; Greer, Subject: Supplemental

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Scott: Please re-confirm that PNS and Mr. Williams will not supplement any of their Interrogatory Responses (Nos. l-4). In light of Mr. Williams' testimony at his deposition that it is possible for PNS to recover database information from the servers with IP addresses 207.244.158.164, 207,244.158.165, and/or 207.244.158.34 concerning when information was imported by PNS for ConnectU from the Facebook website, and when invitations were sent to Complete responses to these interrogatories are Facebook users. warranted by both parties. We held off filing a motion to compel that was the subject of Monte Cooper's prior emails on the subject, as well as my discussion with you on July 16, 2007, pending the Court's resolution of the Defendants' motion to dismiss. In light of the Court's denial of that motion, and PNS' and Williams' answer to the Second Amended Complaint, plaintiffs intend to move to compel unless PNS and Williams agree to supplement with the requisite information. Please let me know immediately and/or Williams' positions have changed. Thank you Theresa

if PNS'

0 ORRICK Theresa A. Sutton Orrick, Herrington & Sutcliffe LLP Silicon Valley Office 1000 Marsh Road, Menlo Park, 94025 650.614.7307 (Voice) 650.614.7401 (Fax) [e-mail] www.orrick.com CA

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