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

Filing 41

Declaration of Theresa A. Sutton in Support of Facebook's MOTION To Reschedule The June 20, 2007 Case Management Conference 40 filed by The Facebook, Inc.. (Attachments: # 1 Exhibit A - E)(Related document(s) 40 ) (Chatterjee, I.) (Filed on 4/9/2007) Text modified on 4/10/2007 to conform to document caption post by counsel (bw, COURT STAFF).

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

Doc. 41

Case 5:07-cv-01389-RS

Document 41

Filed 04/09/2007

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G. HOPKINS GUY, III (State Bar No. 124811) I. NEEL CHATTERJEE (State Bar No. 173985) MONTE COOPER (State Bar No. 196746) THERESA A. SUTTON (State Bar No. 211857) ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 Attorneys for Plaintiff The Facebook, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

THE FACEBOOK, INC., Plaint iff, v. CONNECTU LLC, PACIFIC NORTHWEST SOFTWARE and WINSTON WILLIAMS, Defendants.

Case No. 5:07-CV-01389-RS DECLARATION OF THERESA A. SUTTON IN SUPPORT OF FACEBOOK'S MOTION TO RESCHEDULE THE JUNE 20, 2007 CASE MANAGEMENT CONFERENCE

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SUTTON DECLARATION ISO FACEBOOK'S MOTION TO RESCHEDULE CMC CASE NO. 5:07-CV-01389-RS

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I, Theresa A. Sutton, declare as follows: 1. I am an associate with the law firm of Orrick, Herrington & Sutcliffe LLP,

attorneys for the Plaintiff, Facebook Inc. in the above-captioned matter. I submit this declaration pursuant in support of the Facebook's Motion to Reschedule the June 20, 2007, Case Management Conference. I have personal knowledge of the facts set forth herein and could and would testify competently if called to do so. 2. At the time ConnectU filed the Notice of Removal on March 9, 2007, the

following activity was pending in the State Court action: a. Facebook's Motion to Compel Further Responses to its Second Set of

Requests for Production of Documents was fully briefed by the parties and was set for hearing on March 16, 2007. On that day the Honorable Peter Manoukian, perhaps unaware that the case had been removed, issued an Order granting in-part Facebook's motion. In the Order, the State Court ordered ConnectU to provide further responses, produce documents and produce a privilege log within 20 days. Attached hereto as Exhibit A is a true and correct copy of the Order Granting in Part Facebook's Motion to Compel. b. Seven depositions of non-party, out-of-state witnesses were scheduled over

the course of 10 days beginning on March 21, 2007. Two of the witnesses, iMarc, LLC and David Gucwa, had agreed to appear voluntarily. The day before he was to appear, Mr. Gucwa abruptly canceled his deposition. Facebook immediately received a letter from defendants' counsel indicating that they now represent Mr. Gucwa. The other five witnesses, all of whom are either officially represented by defendants' counsel or otherwise advised by them, simply refused to appear. Facebook was forced to cancel iMarc's deposition so as not to unnecessarily incur additional costs, but iMarc continues to ask Facebook to reschedule the deposition. c. ConnectU's responses to Facebook's Second Set of Special Interrogatories,

which sought information about the location of the code defendants used to hack into Facebook's website, were due on March 27, 2007. Attached hereto as Exhibit B is a true and correct copy of Facebook's Special Interrogatories. ConnectU did not respond to these interrogatories. d.
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PNS agreed to produce additional documents in response to a subpoena -2SUTTON DECLARATION ISO FACEBOOK'S MOTION TO RESCHEDULE CMC CASE NO. 5:07-CV-01389-RS

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issued to it prior to its involvement as a party in this matter. Attached hereto as Exhibit C is a true and correct copy of an email from Scott Mosko, counsel for defendants, indicating that PNS located additional documents and would be producing them. Those documents have not been produced. e. PNS agreed to set a day to continue its deposition. Attached hereto as

Exhibit D is a true and correct copy of an email from Mr. Mosko indicating that he would propose a date for the continued deposition of PNS. Mr. Mosko has not provided any dates for PNS' deposition. Facebook attempted to depose PNS in January 2007. Mr. Taves, PNS' CEO, appeared on behalf of the company but had made no effort to prepare for the deposition, despite the detailed list of topics contained in the subpoena. Attached hereto as Exhibit E is a true and correct copy o f relevant excerpts of PNS' deposition in which Mr. Taves admits he made no effort to prepare for his deposition. Mr. Taves was unable to substantively answer many questions. After meeting and conferring with Mr. Mosko, PNS agreed to appear again -- after being adequately prepared to testify. 3. On Friday, March 6, 2007, my colleague Yvonne Greer and I spoke to Mr. Mosko

and asked him to agree, on behalf of the defendants, to reschedule the CMC. He indicated that he would not agree to reschedule the CMC. He asked me to explain the basis for doing so, and I explained that Facebook did not want to delay this action any longer, the original complaint was filed more than 18 months ago, and many items were pending at the time ConnectU removed this action. I said that Facebook wants to raise the afore-mentioned activity with the Court and ask the Court to get this matter back on track. Mr. Mosko indicated that the case was not ready for an early CMC because two motions to dismiss are currently pending and not all of the parties are before the Court. I pointed out that even if the Court were to grant both motions, at least two claims for relief would remain as ConnectU did not move to dismiss Facebook's claim for relief under the Computer Fraud and Abuse Act or Massachusetts common law misappropriation. Mr. Mosko and I were unable to agree to reschedule the CMC. 4. Fo llowing the meet and confer, I forwarded the following proposed schedule to

Mr. Mosko for his review and comment. I have not received any comments from him regarding
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this proposed schedule. Date 3/9/2007 Notice of removal filed Event Governing Rule

4/25/2007 INITIAL CASE MANAGEMENT CONFERENCE (CMC) in Courtroom 4, 5th Floor, SJ at 2:30 P.M.

Civil _L.R. 16-10

5/15/2007 Last day to: · meet and confer re: initial disclosures, early settlement, ADR process selection, and discovery plan · file Joint ADR Certification with Stipulation to ADR Process or Notice of Need for ADR Phone Conference Last day to file Rule 26(f) Report, complete initial disclosures or state objection in Rule 26(f) Report and file Case Management Statement per attached Standing Order re Contents of Joint Case Management Statement (also available at http://www.cand.uscourts.gov)

FRCivP_26(f) & ADR L.R.3-5 Civil_L.R. 16-8

6/1/2007

FRCivP 26(a) (1) Civil _L.R . 16-9

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 9th day of April, 2007, at Menlo Park, California.

/s/ Theresa A. Sutton /s/ Theresa A. Sutton

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SUTTON DECLARATION ISO FACEBOOK'S MOTION TO RESCHEDULE CMC CASE NO. 5:07-CV-01389-RS