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

Filing 735

RESPONSE to re 729 Joinder - Response to Facebook, Inc. and Mark Zuckerberg's Joinder in ConnectU's Renewed Request For Hearing Date Relating to Production of ConnectU's Documents by Divya Narendra, Cameron Winklevoss, Tyler Winklevoss. (SeLegue, Sean) (Filed on 12/28/2009)

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

Doc. 735

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JEROME B. FALK, JR. (No. 39087) Email: [e-mail] SEAN M. SELEGUE (No. 155249) Email: [e-mail] JOHN P. DUCHEMIN (No. 250501) Email: [e-mail] HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN A Professional Corporation Three Embarcadero Center, 7th Floor San Francisco, California 94111-4024 Telephone: [phone] Facsimile: 415/677-6262 Attorneys for CAMERON WINKLEVOSS, TYLER WINKLEVOSS and DIVYA NARENDRA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

THE FACEBOOK, INC., et al., Plaintiffs, v. CONNECTU, INC., et al., Defendants.

No. C 07-01389 JW RESPONSE TO FACEBOOK, INC. AND MARK ZUCKERBERG'S JOINDER IN CONNECTU'S RENEWED REQUEST FOR HEARING DATE RELATING TO PRODUCTION OF CONNECTU'S DOCUMENTS Chief Magistrate Judge Maria-Elena James (San Francisco Division)

RESP. TO FACEBOOK'S JOINDER IN CONNECTU'S RENEWED REQ. HR'G

C 07-01389-JW

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I.

INTRODUCTION. Facebook, Inc. and Mark Zuckerberg (collectively, "Facebook") seek to join in

ConnectU, Inc.'s renewed request (the "Renewed Request") for a hearing concerning production of ConnectU's documents. The ConnectU Founders1 have previously objected to, and moved to strike, ConnectU's Renewed Request. Facebook's joinder should be stricken not only for the same reasons previously expressed concerning ConnectU's Renewed Request but also because Facebook is improperly asking Chief Magistrate Judge James to revisit a question already ruled upon by Judge Ware. II. DISCUSSION. Facebook's joinder appears to request a briefing and hearing schedule concerning whether ConnectU's privilege has been waived over certain documents possessed by the law firms of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP ("Finnegan") and Boies, Schiller & Flexner, LLP ("Boies"). Through this argument, Facebook apparently seeks an order that Finnegan and Boies turn over privileged, litigation-related materials to ConnectU, which is now a subsidiary of Facebook. However, Judge Ware's disqualification order expressly denied ConnectU's request for the files Facebook wishes to be transferred to ConnectU. Dkt. 704, at 18:12-13 ("The Court . . . declines to order Finnegan and Boise to hand over files pertaining to ConnectU's litigation against Facebook"). Judge Ware

recognized that it would be unfair for Facebook to gain access to privileged litigation files the Finnegan and Boies firms created while they represented ConnectU and its Founders against Facebook. Facebook's request to Chief Magistrate Judge James to reconsider Judge Ware's ruling exceeds Chief Magistrate Judge James' authority. Judge Ware did not delegate to Chief Magistrate Judge James the power to reconsider Judge Ware's ruling that ConnectU was not entitled to the litigation-related documents that Facebook apparently now seeks. Judge Ware assigned to Chief Magistrate Judge James only the power to resolve any disputes concerning
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compliance with Judge Ware's order that Finnegan and Boies turn over business, but not litigation-related, documents to ConnectU. Therefore, Chief Magistrate Judge James lacks jurisdiction to reconsider Judge Ware's order. A separate and independent jurisdictional barrier to the relief Facebook seeks is the pendency of appellate proceedings at the Ninth Circuit arising from this case. The

Founders' appeal of Judge Ware's disqualification order remains pending, despite ConnectU and Facebook's arguments to the Ninth Circuit that the appeal should be dismissed. The Ninth Circuit has effectively consolidated the appeal of Judge Ware's disqualification appeal with the pending appeals from Judge Ware's orders enforcing a purported settlement of this litigation. See Dkt. 725 (12/14/09 Ninth Circuit order). Chief Magistrate Judge James has correctly been reluctant to conduct proceedings when an appeal is pending. III. CONCLUSION This matter is now on appeal to the Ninth Circuit. Facebook and ConnectU's efforts to continue litigating this case at the District Court level should be denied.

DATED: December 28, 2009. Respectfully, JEROME B. FALK, JR. SEAN M. SELEGUE JOHN P. DUCHEMIN HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN A Professional Corporation
By: /s/ SEAN M. SELEGUE

Attorneys for CAMERON WINKLEVOSS, TYLER WINKLEVOSS and DIVYA NARENDRA
W03 122809-180060001/U10/1600628/v1

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