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

Filing 252

Declaration of Monte M.F. Cooper in Support of Plaintiff's Motion for Partial Summary Judgment re Defendants' Liability Pursuant to California Penal Code Section 502(C) and 15 U.S.C. 7704(A)(1) and 15 U.S.C. 7704(B)(1) 251 filed by Mark Zuckerberg, The Facebook, Inc.. (Attachments: # 1 Exhibit 1 - Notice, # 2 Exhibit 1A, # 3 Exhibit 2 - Notice, # 4 Exhibit 3, # 5 Exhibit 4 - Notice, # 6 Exhibit 5, # 7 Exhibit 6 and 7 - Notice, # 8 Exhibit 8, # 9 Exhibit 9.1, # 10 Exhibit 9.2, # 11 Exhibit 9.3, # 12 Exhibit 9.4, # 13 Exhibit 9.5, # 14 Exhibit 9.6, # 15 Exhibit 9.7, # 16 Exhibit 10, 11, and 12 - Notice, # 17 Exhibit 13, # 18 Exhibit 14, # 19 Exhibit 15, # 20 Exhibit 16, # 21 Exhibit 17, # 22 Exhibit 18, # 23 Exhibit 19, # 24 Exhibit 20, # 25 Exhibit 21, # 26 Exhibit 22, # 27 Exhibit 23, # 28 Exhibit 24, # 29 Exhibit 25, # 30 Exhibit 26, # 31 Exhibit 27, # 32 Exhibit 28-31 - Notice, # 33 Exhibit 31A, # 34 Exhibit 32-34 Notice, # 35 Exhibit 35.1, # 36 Exhibit 35.2, # 37 Exhibit 35.3, # 38 Exhibit 36-38 Notice, # 39 Exhibit 40-43 Notice, # 40 Exhibit 44, # 41 Exhibit 45-48 Notice, # 42 Exhibit 49, # 43 Exhibit 50-55 Notice, # 44 Exhibit 56, # 45 Exhibit 57-59 Notice, # 46 Exhibit 60, # 47 Exhibit 61 Notice, # 48 Exhibit 62, # 49 Exhibit 63-64 Notice, # 50 Exhibit 65, # 51 Exhibit 66)(Related document(s) 251 ) (Chatterjee, I.) (Filed on 1/7/2008) Text modified on 1/8/2008 (bw, COURT STAFF).

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

Doc. 252 Att. 25

EXHIBIT 21

Dockets.Justia.com

30(b)(6) Deposition of Tufts, David

101512007

I represent defendant Eduardo Saverin in a case
sharing many of the same parties now pending in the District of Massachusetts. MS. SCHOENFELD: This is Meredith

Schoenfeld, from Finnegan Henderson Farabow Garrett
&

Dunner.

I represent the plaintiffs in the same

Massachusetts litigation, ConnectU. MR. SCHULTZ: defendants. MR. CHOW: Stephen Chow, for iMarc, Chris Schultz, for the

Inc., and the witness today. MR. CHATTERJEE: And just for sake of

clarity, Ms. Sutton and I also represent all of the defendants except for Eduardo Saverin in the Massachusetts case that Ms. Schoenfeld and Mr. Hampton referred to. DAVID TUFTS, duly sworn EXAMINATION

BY MR. CHATTERJEE:
Q.

Please state your name for the record. David Tufts. Mr. Tufts, my name is Nee1 Chatterjee, and

A.
Q.

I'm an attorney for the plaintiffs in a lawsuit pending in California.

I represent Facebook, Inc.

and Mark Zuckerberg in that case.

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Q.

So let me hand you Exhibit 63.

Mr. Tufts,

do you recognize this document? A.
Q.

Yes. What do you understand this document to be? Not a whole lot. It tells me that I'm

A.

supposed to be here at this time and that you're going to ask me questions.
Q.

So you understand that you're testifying as

a corporate designee for iMarc about the topics set forth in this deposition notice. A.
Q.

Yes. And what did you do to prepare for your And I don't want you to talk

deposition today?

about specific conversations with your lawyers. Just generally, could you describe what you did to prepare for your deposition today. A.
We talked about -- I believe there's a

bullet list on the last page of this, and we just kind of talked about those items. Q. A.
Q.

How long did you spend preparing? A morning. Would you say that was two hours, three

hours? A.
Q.

Two to three hours. Anything else you did to prepare for the

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deposition today? A. I looked through some of the emails that

you guys have like a whole -- our archive of emails, and I looked through some of them just to refresh my mind.
Q.

Did you have any conversations with people

at iMarc or that have left iMarc about the topics?

A.

Not about the topics, just mostly about the

sort of like hassle of it. Q. A.
Q.

The fact that you're being deposed. Yes. And were you involved at all in the

collection and production of documents from iMarc? A.
Q.

Yes.

I printed out my emails.

Did you do anything else? For this trial? To produce documents in I think a number of months

A.

response to a subpoena.

ago we were -- our emails or documents were subpoenaed. I'm not sure if that's the right term.

And I printed out all the emails that I had and gave them to Nils, who I work with, and he emailed them to wherever we were supposed to email them.
Q.

Could you give me Nils' last name? Nils Menten. Could you spell that, please?

A.
Q.

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A.
Q.

N-i-1-s M-e-n-t-e-n. And was Mr. Menten the person that was

coordinating the document production related to that subpoena? A. Yes. Our first subpoena, or all these He is the founder,

subpoenas have come to iMarc.

the president, so he sort of took charge of the first one. I was a little more familiar with this

matter, so after he sent in emails, it kind of fell in my court.
Q.

I'm going to ask you to speak up just a

little bit, to make sure that the court reporter can get the transcript down and the mike picks you up. A.
Q.

Okay. Could you describe what your educational

background is. A. I finished -- I went to high school and

then college.
Q.

Where did you go to college? Northeastern University. And what kind of degree did you get? Bachelor of arts. And in what subject matter? Graphic design. Other than a bachelor of arts in graphic

A.
Q.

A.
Q.

A.
Q.

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2000, I think, or late 1999; right around there. Q. A.
Q.

How big is iMarc today? Seventeen people. How many clients does iMarc have,

approximately? A.
Q.

150.

I'm going to go through a list of names,

just to understand who they are, because we've seen a lot of different names in the various email traffic and things, and I just want to get a sense of who they are and what they did. Bill Boo-shee? A.
Q.

Bushee. Who is Bill Bushee? He is a programmer at iMarc, a Web

A.

developer.
Q.

What is a Web developer? He writes the code that powers the

A.

websites.
Q.

Do you know how long he's been with iMarc? I believe he joined iMarc around 2000. And Nick Grant? Nick Grant was the first project manager.

A.
Q.

A.

He joined iMarc January of 2000, as a project manager. As iMarc grew, we split, and we needed two

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1 project managers.
1
the company. Q. A. Q. A. Q. A. Q. A.

But Nick has always been a He is also a partner in

project manager at iMarc.

Is he still with iMarc? Yes. And is Bill Bushee still with the company? Yes. Fred LeBlanc? He's also a Web developer, programmer. Is he still with the company? Yes. Marc Pierrat? He was a salesperson in new business

Q.
A.

development.
Q.

You said "was."

Is he no longer with the

company? A.
Q.

That is correct. When did he leave the company? Three years ago, two to three years ago. Was his leaving the company voluntary? Yes. How long did he work at iMarc? About two years. I'm going to go through these names again

A.
Q.

A. Q. A.
Q.

and I'm going to ask if you know what their email

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I
addresses were at iMarc. Mr. Bushee, do you know what his email address was? A.
Q.

[e-mail]. And Nick Grant? [e-mail]. Fred LeBlanc? [e-mail]. And Marc Pierrat? Marc, M-a-r-c, @imarc.net. So emails with those email headers would be

A. Q. A.
Q.

A.
Q.

emails that originated from the people that you identified? A. If the header was the "from" address. MR. SCHULTZ: for speculation.
Q.

Sorry.

Objection, calls

So if it said [e-mail], it would be

an email that came -- if it said from Bill at imarc.net, it would be an email from Bill Bushee. MR. SCHULTZ: A. Same objection. Should I

This is what I don't understand:

still answer the question? Q. A.
Q.

Yes. Yes. As I said, when he lodges an objection or

anybody lodges an objection, as long as the question

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is clear to you, you can go ahead and answer it. A. Q. All right. Is there a general practice at iMarc for

people to use each others' email addresses?

A.
Q.

I don't understand that question. So, for example, would Mr. LeBlanc

generally be allowed to use Mr. Bushee1s email address? MR. SCHULTZ: A. Objection, vague.

I don't know of any case where that's

happened.
Q.

Now I'm going to turn to a different topic.

I want to talk to you about ConnectU, Cameron and Tyler Winklevoss, and Divya Narendra. recall -Well, let me start with this: Have you Do you

ever met, either electronically, through an email or the like, or live, Divya, Cameron Winklevoss, or Tyler Winklevoss? MR. SCHULTZ: A.
Q.

Object to the form.

Yes. When was the first time that you met any

one of those people? MR. SCHULTZ: A. Object to the form.

This is including electronically, you said?

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Q.

Yes. Whenever the first email is. Can you give me an estimate as to time?
2003.

A. Q. A. Q.

Do you recall the first time you met them

via a telephone call or in person? MR. SCHULTZ: A. Object to the form. I'm

I don't recall the first time.

guessing it was probably after that.
Q.

And do you recall who it was that contacted

iMarc? MR. SCHULTZ: A.
Q.

Objection, foundation.

I believe one of the Winklevosses. One of the Winklevoss brothers? Yes. Do you recall why they said they were

A.
Q.

contacting iMarc? MR. SCHULTZ: Objection, foundation.

Assumes facts not in evidence. A. I was not part of the original. That would

be typical of a client.

Specifically, in this case, That

the client contacts our sales department.

would have been Marc -- to talk about a probable job. And then after it was ironed out, it would go So I don't recall who

to me or the production team.

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contacted us first and why, but I'm guessing it's all in those emails.
Q.

And when you said you were contacted --

iMarc was contacted about a possible job, what did you understand the job ultimately to be? A. By the time Marc presented it to me, I

believed it to be a social networking site. Q. site"? A.
.-

What do you mean by "social networking

A website where people can create profiles

about themselves to interact with or network with other people on the website, either for personal dating reasons or professional reasons.
Q.

Please explain a little bit more what you

mean by that. MR. SCHULTZ: A. I'm not sure. Objection, vague.

Can you ask me a specific

question?
Q.

Sure.

You described the scope of the Did I

project being a social networking website. get that right? A.
Q.

Yes. And you said that it was a website where

people can create profiles to interact with others for dating or professional reasons.

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A. Q.

Correct. Maybe I can probe a little bit more into

what you mean by "dating and professional reasons." Let me ask the question, first: What

did you mean when you said "for dating reasons"? A. I believe that they wanted to allow their

users to create profiles so they could meet, connect with other people for personal reasons -friendship, dating. The website was really just

about bringing people together, and from then on, it's not going to impose any rules about dating or something like that. meeting. Q. That was the scope of the project they It's mostly about just

presented. A.
0.

Yes. And what about professional reasons? What

do you mean when you said that? A. Perhaps someone would create a profile much Other people in a company could

like a resume.

search through or look for specific people to hire, to work with, things like that -- professional business.
Q.

And were you given any guidance when you

were given the scope of this project about what to

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look at to develop this website? A.
Q.

Yes. And what guidance were you given? By the time it came to me with a proposal,

A.

there was a number of benchmarking sites -match.~ o m , believe, rise.~ o m , I thefacebook.com, friendster.com -- and then also some -- so those were all, especially friendster.com -- those were all social networking sites that were already out on the Internet that did something similar. And they

also gave us a number of benchmarking sites for the visual look and feel. Most of those sites were And they sent

really stripped down and technical.

us, I believe, YSL, which might be a fashion company, a couple of sites that we had actually developed they liked the look at -- look of. So

they gave us a couple other, maybe four sites -again, it's in those emails -- of benchmarking sites which they liked the look of. So we had a couple of

sites that they liked features from, a couple of sites that they liked the look of.
Q.

You mentioned these benchmarking sites.

Were you told to do anything specifically with respect to your review of the match.com website? A. No. I think that they pointed out features

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MR. SCHULTZ: speculation.

Objection, calls for

A.
Q.

I personally am not aware of it. Would it generally be your practice to be

aware of obligations like that in relationships with clients? A. Not in my role during this time. My role

is mostly programming.

I don't remember -- again,
I'm not

the size of the company was a lot smaller.

aware that we had any nondisclosure agreements at that time.
Q.

Who owned the intellectual property

associated with the development of the ConnectU website? MS. SCHOENFELD: MR. SCHULTZ: Objection. Foundation,

Objection.

calls for a legal conclusion. A.
Q.

I'm not sure. If we go back to Exhibit 65, in this third

paragraph -A.
Q.

Yes.
-- the second-to-last sentence says, "In

fact, for some sections, like groups, our only instructions were, 'Go to Facebook, figure out what they are doing, add it to our site.'" What did you

1
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mean by that?

A.

I meant by the time it seemed there was

definitely this period of time that we were racing around to try add more features to compete with sites that were already out there that had traction. So they were going to lots of sites on the Web and figuring out, I mean, what features might interest people who create accounts on social networking sites. And I think that one specific one, the

groups, was one of the ones that we added toward the end, where they were just like, "Hey, that's a cool feature. Let's do that" -- as opposed to the way we

normally work, which is speccing out -- like working with a client, really like defining what the problem is, what the solution is. typically works. Once connectu.com launched, there seemed to be much more of a quick, all of a sudden "We need to add lots of features, we need to get popular and get traction, and we think that that will happen by adding lots of features." So there was a lot less That's the way iMarc

spec work -- which personally, again, this is my personal rant, and I assume that that bothered me, that I like to define problems, define solutions, as opposed to just being, "Hey, Facebook does this.

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Cool, let's add something like that to our site." Q. Did you ever access the Facebook website at

the direction of the ConnectU founders? A. I think -- yeah, I think we certainly -- I

think we accessed a number -- I mean, we looked at -- by "access" I'm assuming you mean looking at, log in, look at a website. I think we did that to a

number of social networking sites.
Q.

And what did you do to access the Facebook

website? A.
Q.

Looked at it. Well, let me make it a little simpler. Did

you have an account with Facebook? A. I think that they had an account, that they

would show us stuff.
Q.

Whose account was it? Cameron's. I'm not sure. I don't know,

A.

actually.
Q.

I shouldn't speculate.

When you said "they would show us, "

describe what you mean by that. A. I think they would -- you know, we'd have

a -- they'd come up to our office, or they'd, you know, send us screen shots or email us, you know, pages and say, "Hey, look at this. neat. " This is kind of

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they obviously just didn't like it.

I don't know.

We just ended up hearing a lot of complaining about him. said. Q. When you said that they said in the loosest I don't remember specifically exactly what was

terms that Mark Zuckerberg was supposed to develop a website, what do you mean when you say "in the loosest terms"? A. said.

I mean, I can't remember exactly what they
But again, we had talked about this before:

Like a month into the project it was brought out that -- they started talking more about Mark Zuckerberg because thefacebook.com started getting more popular, and they obviously had some personal feelings, that they didn't like him. And they

mentioned that "He was supposed to build this for
US. "

Again, there wasn't a whole lot of us, the production team, talking with ConnectU about Mark Zuckerberg. We were more concentrating -- we were concentrating on just getting a site up, and we know that they wanted to get a site up quickly, because this other site, the Facebook, was already getting traction. Q. Did they ever tell you that they had a

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contract with Mark Zuckerberg?

MR. SCHULTZ:
scope of the deposition. A.
Q.

Objection, outside the

Not that I remember. Did they ever tell you that Mark Zuckerberg

was a partner in their project? MR. SCHULTZ: A.
Q.

Same objection.

Not that I remember. Do you remember at any point in time any of

the ConnectU founders telling you to keep information confidential that they were sharing? MR. SCHULTZ: Objection, outside the

scope of the 30 (b)(6) topics. A,
Q.

I don't remember that, no. We'll go through a few more names, not

/ iMarc names.
Are you familiar with someone by the name of David Gucwa? A. Again, I'll probably -- if I saw his name

I

printed -- the pronunciation doesn't sound familiar. If I saw it printed -- a lot of these people are just email addresses to me, so if you showed me his name printed -Q.

He's not actually in any emails that I I just wondered if you'd heard the name.

recall.

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A.

No. It's G-u-c-w-a. I don't know. What about John Taves, T-a-v-e-s? Yes, I believe that he was sort of the new He was technically in charge of

Q.
A. Q.

A.

webmaster, maybe.

the site after we -- he took over after we were done.
Q.

Have you ever had conversations with

Mr. Taves? A.
Q.

Yep. And when do you remember having your first

conversation with him? A. I'm not sure of the exact -- maybe late When we were -- we -- iMarc

2004, or summer 2004.

moved ConnectU off of our servers, onto their own server, he seemed to be the one who was going to take over, technically take over. So there was a

couple of conference calls, talking about where files were, where stuff was.
Q.

Why was ConnectU being taken off of your

servers? A. We just weren't happy with stuff they were

asking us to do, and we just weren't happy with our relationship with them.

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1 2 3

Q.

Describe what you mean by that. They asked us to do a couple of things that

A.

we deemed unethical, and they actually seemed to do something -- seemed to send out emails that we saw, and we didn't want that happening on a server that we managed. Q. A. Anything else? Just in general we just weren't happy

4
5
6 7 8

9
10
11

working with them any more. Q. Other than the email issue, when you say

you generally weren't happy, what was prompting those feelings? A. I think I touched on in that personal rant,

12 13 14 15 16 17 18
19

where they were just telling us to "Do this, add this, add this," and that's not really how we work and like to work. We were growing and had enough

other clients that we just really didn't want to work that way with them. Compound that with a

couple of unethical things that they seemed to be doing, we just didn't want any part of managing their server or working with them any more.
Q.

20 21 22 23 24 25

Were you concerned at all for iMarcls

liability associated with some of those activities? A. Q. Oh, yeah, sure, yep. Describe what you mean by that.

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A.

If it's a server that we manage that might

have other clients on it and someone sends out mass emails from it and the server gets blacklisted -which would mean that it's known to send spam, so email clients won't accept mail from that -- if they're sending spam, it gets the whole server blacklisted, and we have other clients that suddenly their email stops working. deal with that.
Q.

So we didn't want to

That's not what we do.

You used the term "