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

Filing 311

Declaration of Theresa A. Sutton in Support of Plaintiffs' Reply in Support of 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 USC 7704(B)(1) 251 310 filed by Mark Zuckerberg, The Facebook, Inc. (Attachments: # 1 Exhibit A (Notice of Manual Filing), # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E (Notice of Manual Filing), # 6 Exhibit F (Notice of Manual Filing), # 7 Exhibit G (Notice of Manual Filing), # 8 Exhibit H (Notice of Manual Filing), # 9 Exhibit I)(Related document(s) 310 ) (Sutton, Theresa) (Filed on 2/13/2008) Text modified on Modified on 2/14/2008 conforming to posted document caption (bw, COURT STAFF).

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The Facebook, Inc. v. Connectu, LLC et al Doc. 31 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 26 27 28 SEAN A. LINCOLN (State Bar No. 136387) salinco ln@orrick.com I. NEEL CHATTERJEE (State Bar No. 173985) nchatterjee@orrick.com MONTE COOPER (State Bar No. 196746) mcooper@orrick.co m THERESA A. SUTTON (State Bar No. 211857) tsutton@orrick.com YVONNE P. GREER (State Bar No. 214072) ygreer@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: 650-614-7400 Facsimile: 650-614-7401 Attorneys for Plaintiffs THE FACEBOOK, INC. and MARK ZUCKERBERG UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION THE FACEBOOK, INC. and MARK ZUCKERBERG, Plaint iffs, v. CONNECTU, INC. (formerly known as CONNECTU, LLC), PACIFIC NORTHWEST SOFTWARE, INC., WINSTON WILLIAMS, WAYNE CHANG, and DAVID GUCWA, Defendants. Case No. 5:07-CV-01389-RS DECLARATION OF THERESA SUTTON IN SUPPORT OF PLAINTIFFS' REPLY IN SUPPORT OF 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) Date: Time: Judge: February 27, 2008 9:30 A.M. Honorable Richard Seeborg OHS West:260385239.1 REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 5:07-CV-01389-RS Dockets.Justia.com 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 26 27 28 I, Theresa A. Sutton, declare as follows: 1. I am an associate at the law firm of Orrick, Herrington & Sutcliffe, counsel for Plaintiffs Facebook, Inc. and Mark Zuckerberg in this action, and a member of the Bar of the state of California. I make this declaration in support of Plaintiffs' Reply in Support of Motion of 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). I make this declaration of my own personal knowledge and, if called as a witness, I could and would testify competently to the truth of the matters set forth herein. 2. Attached hereto as Exhibit A is a true and correct copy of relevant excerpts from the deposition of Mark Zuckerberg. [SUBMITTED UNDER SEAL -- CONFIDENTIAL INFORMATION SUBJECT TO PROTECTIVE ORDER.] 3. Attached hereto as Exhibit B is a true and correct copy of Facebook, Inc.'s Articles of Incorporation, dated July 29, 2004. 4. Attached hereto as Exhibit C is a true and correct copy of Part IV of the May 12, 2005, Federal Register, 16 CFR Part 316, Definitions, Implementation, and Reporting Requirements Under the CAN-SPAM Act; Proposed Rule. 5. Attached hereto as Exhibit D is a true and correct copy of a screenshot from an email in-box on the Facebook website. 6. Attached hereto as Exhibit E is a true and correct copy of an instant message conversation between Mark Zuckerberg and Adam Goldberg, dated August 9, 2004. This document was produced to Defendants in this action in response to a Rule 34 Request for Production of Documents and is Bates numbered FBCA051217. [SUBMITTED UNDER SEAL -- CONFIDENTIAL INFORMATION SUBJECT TO PROTECTIVE ORDER.] 7. Attached hereto as Exhibit F is a true and correct copy of an instant message conversation between Mark Zuckerberg and Fallick, dated August 6, 2004. This document was produced to Defendants in this action in response to a Rule 34 Request for Production of Documents and is Bates numbered FBCA051222. [SUBMITTED UNDER SEAL -CONFIDENTIAL INFORMATION SUBJECT TO PROTECTIVE ORDER.] OHS West:260385239.1 REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 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 26 27 28 8. Attached hereto as Exhibit G is a true and correct copy of an email string between Mark Zuckerberg and Scott Sassa, dated February 19, 2005. This document was produced to Plaintiffs in this action in response to a Rule 34 Request for Production of Documents and is Bates numbered FBCA001268. [SUBMITTED UNDER SEAL -- CONFIDENTIAL INFORMATION SUBJECT TO PROTECTIVE ORDER.] 9. Attached hereto as Exhibit H is a true and correct copy of an email string between Facebook and a user, Alexander Lee, dated February 20, 2005. This document was produced to Defendants in the Massachusetts action in response to a Rule 34 Request for Production of Documents and is Bates numbered FBMA0095515. [SUBMITTED UNDER SEAL -CONFIDENTIAL INFORMATION SUBJECT TO PROTECTIVE ORDER.] 10. Attached hereto as Exhibit I is a true and correct copy of an instant message conversation between Defendant David Gucwa and Defendant Wayne Chang, dated January 24, 2005. This document was produced to Plaintiffs in this action in response to the February 21, 2007, subpoena duces tecum, which was served on February 23, 2007. The document is Bates numbered GUCWA 0056-0063. Pages 56-60 also are part of Exhibit 9 of the Declaration of Monte M.F. Cooper in Support of Plaintiffs' Motion for Partial Summary Judgment. Doc. No. 252. 11. Defendants mischaracterize the facts leading up to the scheduling of Facebook's 30(b)(6) witness. As Exhibit B to the Declaration of Scott Mosko shows, because Defendants had not served a Notice of Deposition with specific topics on which they sought to depose Facebook, I asked for more specificity. Mr. Mosko said he could not "at that time" provide more specificity, despite the fact that his request for a witness related to two "general topics," namely the operation of Facebook's servers and internet connections. Because Defendants refused to provide the requisite specificity as to the 30(b)(6) topics, Facebook was forced to provide dates for a witness who turned out not to be the appropriate choice. After Facebook provided this witness' availability, Defendants served a notice of 12 detailed topics. As a result of the new topics, Facebook was required to identify a different witness, who is scheduled to appear on Friday, February 15, 2008. OHS West:260385239.1 -2- REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 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 26 27 28 I declare the foregoing is true and correct to the best of my knowledge. Executed this 13th day of February, 2008, at Menlo Park, California. /s/ Theresa A. Sutton /s/ OHS West:260385239.1 -3- REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 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 26 27 28 OHS West:260385239.1 CERTIFICATE OF SERVICE I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on February 13, 2008. Dated: February 13, 2008. Respect fully submitted, /s/ Theresa A. Sutton /s/ Theresa A. Sutton REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 5:07-CV-01389-RS

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