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

Filing 771

RESPONSE (re 769 Administrative Motion to File Under Seal ) Opposition to Administrative Request to File 15 Page Oversized Brief filed byThe Facebook, Inc., Mark Zuckerberg. (Attachments: # 1 Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Chatterjee, Indra) (Filed on 10/27/2011)

EXHIBIT 4

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Case 1:07-cv-10593-DPW Document 359

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IN THE UNITED STATES DISTRICT COURT
THE
FOR THE DISTRICT OF MASSACHUSETTS
CONNECTU, INC., CAMERON
WINKLEVOSS, TYLER WINKLEVOSS,
WTNKLEVOSS,
AND DIVYA NARENDRA,
DIVY A
CIVIL ACTION NO.1 :07-cv-10593-DPW
NO. 1:07-cv-10593-DPW
Plaintiffs,
v.

(CONSOLIDATED WITH CIVIL ACTION
I :04-cv-1l923-DPW)
NO. 1:04-cv-11923-DPW)

FACEBOOK, INC., MARK
ZUCKERBERG, EDUARDO SAVERIN,
SAVERIN,
DUSTIN MOSKOVITZ, ANDREW
MCCULLUM, AND THEFACEBOOK LLC,

M,CmrUM. AND ';::~d::OO:J
Defendants.

CAMERON WINKLEVOSS, TYLER WINKLEVOSS AND DIVYA NARENDRA'S
WINKLEVOSS, TYLER WINKLEVOSS AND DIVYA
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
AND AUTHORITIES
FOR DISCOVERY UNDER
60(B)
MOTION FOR DISCOVERY UNDER FED.R.CIV.P. 60(B)

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TABLE OF CONTENTS
I.

1
INTRODUCTION .............................................................................................................. 1

II.

FACEBOOK
THE CIRCUMSTANCES STRONGLY INDICATE THAT THE FACEBOOK
DEFENDANTS WRONGFULLY WITHHELD THE LEAKED INSTANT
MESSAGES ........................................................................................................................ 3
A.

To Produce Tbe Leaked
The Facebook Defendants Failed To Produce The Leaked. IMs Despite
The Founders 2005 Request For All Of Mr. Zuckerberg's Communications
2005 Request
All
Mr.
Connection
Relating To Harvard Connection............................................................................. 3

B.

The Leaked IMs Were Reportedly Sent From The Laptop Mr. Zuckerberg
Mr.
Harvard
Used At Harvard...................................................................................................... 4

C.

The Facebook Defendants' Conducted A "Thorough" Forensic Examination
OfMr.
Of Mr. Zuckerberg's Laptop ................................................................................... 5

D.

The Facebook Defendants Never Indicated They Were Withholding
Responsive Communications .................................................................................. 7

E.

Defendants Repeatedly Promised To Supplement Their Production And
Represented To Plaintiffs And The Court That They Were Not Withholding
Documents .............................................................................................................. 8
Documents.

F.

Article .......................... 9
9
The January 2006 Meeting Reported In The New Yorker Article.

G.

The Facebook Defendants Repeatedly Claimed They Had Complied With
All Discovery Obligations and Promised To Promptly Produce Responsive
11
Documents As They Were Discovered................................................................. 11

H.

The Parmet Dispute ............................................................................................... 11

III. THE FOUNDERS ARE ENTITLED TO AN INQUIRY AND DISCOVERY UNDER
Ill.
THE FOUNDERS ARE ENTITLED TO AN INQUIRY AND DISCOVERY UNDER
ANDERSON .............................................. ........................................................................ 14
A.
A.

Legal Standard.
Standard ...................................................................................................... 14
14

B.
B.

The Failure To Produce The IMs Suggests Misconduct, But Confirmatory
16
Discovery Is Necessary ......................................................................................... 16

C.
C.

Discovery Also Is Necessary To Determine Whether The Failure To Produce
The Leaked IMs Substantially Interfered With The Founders' Preparation
With The
Action ...................................................................................................... 17
17
Of This Action.

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Case 1:07-cv-10593-DPW Document 360

D.

Filed 08/19/11 Page 3 of 30

Discovery Is Necessary To Detem1ine Whether The Misconduct Was
Determine
Of
Intentional And Whether The Presumption Of Substantial Interference
21
Arises
Arises..................................................................................................................... 21

IV.
IV.

THE DISCOVERY NEEDED TO ESTABLISH WHETHER THE SUPPRESSION
WAS INTENTIONAL OR INADVERTENT .................................................................. 22

V.
V.

CONCLUSION ................................................................................................................. 24

CERTIFICATION PURSUANT TO LOCAL RULE 7.1(a)(2) ................................................... 24
CERTIFICATE OF SERVICE ..................................................................................................... 24

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TABLE OF AUTHORITIES
TABLE OF AUTHORITIES

Cases
v.
Anderson v. Beatrice Foods Co.,
127 F.R.D. 1, 5-6 (D.Mass. 1989) ............................................................................................. 12
F.R.D. 1,5-6 (D.Mass.
Anderson v. Cryovac, Inc.,
v. Cryovac,
(lst
1988)
2,3,15,16,17,21,23,24
862 F.2d 9lO, 928-930 (1st Cir. 1988) ................................................ 2, 3, 15, 16, 17, 21, 23, 24
910,

v.
&
Armstrong v. Rohm & Haas Co.,
349 F.Supp.2d 71, 81 (D.Mass.2004) ....................................................................................... 20
F. Supp.2d
81 (D .Mass.2004)
Intern., Inc. v.
Arrow Intern., Inc. v. Spire Biomedical,
635 F.Supp.2d 46, 58 (D. Mass. 2009) ..................................................................................... 20
Broomfield v. Kosow,
v.
349 Mass. 749 (1965) ................................................................................................................ 18
Mass.
v.
Cardullo v. Landau,
329 Mass. 5, 8 (1952) ................................................................................................................ 18
Mass.
v.
Conerly v. Flower,
F .2d 941 (8th Cir. 1969)
410 F.2d 941 (8 th Cir. 1969) ...................................................................................................... 14
Damiani v. Rhode Island Hospital,
v.
(! e' Cir. 1983)
704 F.2d at 17 (1St Cir. 1983) .................................................................................................... 22
DeCotis v. D'Antona,
v.
350 Mass. 165, 168 (1966) ........................................................................................................ 18
Foster v. Hurley,
v.
444 Mass. 157, 167 (2005) ........................................................................................................ 19

Genesis Technical & Financial v. Cast Navigation,
&
74 Mass.App.Ct. 203, 212 (2009) ............................................................................................. 19
Mass.App.Ct.
Hamilton v.
Hamilton v. School Committee of City of Boston,
of
of
725 F.Supp. 641, 643 (D.Mass. 1989) ...................................................................................... 14
725 F.Supp.
1989)
Hickman v. Taylor,
v.
329 U.S. 495, 511 (1947) .......................................................................................................... 17
329 U.S. 495, 511
In re Parametric Technology Corp.,
In
F. Supp.2d
(D .Mass.
300 F.Supp.2d 206, 216 (D.Mass. 2001) .................................................................................. 20

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Judge v. Gallagher,
v.
18
17 Mass.App.Ct. 636 (1984) ..................................................................................................... 18
Mass.App.Ct.
Kelly v. Greer,
14
334 F.2d 434,436 (3d, Cir. 1964) ............................................................................................. 14
434, 436 (3d.
Kleinschmidt v. U.S.,
v. u.s.,
F.Supp.
&
1956)
146 F.Supp. 253, 256 & n. 4 (D.Mass. 1956) ........................................................................... 18
McCall—Bey v. Franzen,
McCall-Bey v. Franzen,
(7'h Cir. 1985)
14
777 F.2d 1178, 1186 (7111 Cir. 1985) .......................................................................................... 14
Novelty, Inc. v.
Novelty, Inc. v. Mountain View Marketing, Inc.,
View Marketing,
265 F.R.D. 370, 375 (S.D.Ind. 2009) .......................................................................................... 3

Reisman v. KPMG Peat Marwick LLP,
v.
57 Mass.App.Ct. 100,787 N.E.2d 1060, 1066-67 (2003) ........................................................ 20
Mass.App.Ct. 100, 787 N.E.2d 1060,
Rozier v. Ford .Motor Co.,
v.
Motor
1332 (5th
15
573 F.2d 1332 (5th. Cir.1978) .................................................................................................... 15
Smith v. Jenkins,
171
18
626 F.Supp.2d 155, 171 (D.Mass. 2009) .................................................................................. 18

Square Constr. Co. v. Washington Metropolitan Area Transit Authority,
Constr. Co. v.
Metropolitan
Cir. 1981) ........................................................................................................ 15
15
657 F.2d 68 (4th Cir. 1981)
Sterski v. Kirzhnev,
v.
2011, WL 923499 (D. Mass., March 15, 2011) (unpublished) ................................................. 22
2(11)
Stridiron v. Stridiron,
v.
698 F.2d 204 (3d Cir.1983) ....................................................................................................... 14
14
Tew v. Chase Manhattan Bank, N.A.,
v.
Bank,
728 F.Supp. 1551, 1555 (S.D.Fla.1990) .................................................................................... 20
728F.Supp.1551,
(S.D.F1a.1990)
Triange Capital Corp. v. I.M.e. Management Corp.,
Triange Capital Corp. v. I.M.C. Management
127 F.R.D. 444, 446 (D. Mass. 1989) ....................................................................................... 14
F.R.D.
14
Warsofsky v.
Warsofsky v. Sherman,
326 Mass. 290, 93 N.E.2d 612 (1950) ...................................................................................... 18
93
18

Wilson v. Jennings,
Wilson v.
18
344 Mass. 608, 615 (1962) ........................................................................................................ 18

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Statutes
Fed.R.Civ.P. 26(e) .......................................................................................................................... 8
1,24
Fed.R.Civ.P. 60 ......................................................................................................................... 1, 24
Fed.R.Civ.P. 60(b) .............................................................................................................. 2, 14, 17
14
Rule 60(b)(3) ............................................................................................................................. 2, 14

Other Authorities
11, Wright, Miller, Kane, Federal Practice & Procedure,
&
§ 2852 at pp. 233-235 & ns. 7 & 9 (2d ed. 1995) ..................................................................... 14
&
&
1995)
(3,d ed. 2011)
12, Moore's Federal Practice, § 60.43[1][a] at p. 60-138 (3rded. 2011) ..................................... 15

Articles
Silicon Alley Insider .................................................................................................................. 1,10
I, 10
The
yorker
1,2,4,9,10,13,16,17
The New Yorker........................................................................................... 1, 2, 4, 9, 10, 13, 16, 17

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I.
L

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INTRODUCTION

The Founders move under Fed.R.Civ.P. 60 ("Rule 60") for an inquiry into whether, two
attomeys
years before the mediation, the Facebook Defendants and their attorneys reviewed damaging

instant message communications ("IMs") sent by Mark Zuckerberg at Harvard, determined that
elMs") sent
at Harvard, determined
lMs
discovelY
these IMs were responsive to discovery requests, and then suppressed this evidence.

If genuine, the leaked IMs would have been critical evidence supporting the Founders'
If
lMs
critical
breach of fiduciary duty and fraud claims. 1:04-cv-11923 Dkt. 1, pp. 7-10 (initial complaint);
offiduciary duty and fraud claims. 1:04-cv-11923 Dkt. 1, pp. 7-10 (initial
Dkt. 1, pp. 14-17 (2007 complaint). 1 If Facebook had produced the evidence of their breach of
Dkt. I, pp. 14-17 (2007 complaint).' If Facebook had produced the evidence of
fiduciary duty, the Founders would have been able to fully develop their claim for a constructive
trust, a sweeping remedy under Massachusetts law that might well have led to the Founders
obtaining a significant percentage of Mr. Zuckerberg's interest in Facebook.
Mr.
The basis for this motion emerged in 2010, long after the 2008 mediation and settlement.
mid-20 10,
of
bonafide2 IMs were published
First, in mid-2010, a selection of allegedly bona lide2IMs were published in the Silicon Alley

Insider 3 Second, The New Yorker reported in September 2010 that Facebook executives and
The
Insider?

attorneys reviewed these leaked IMs in a January 2006 meeting. See Meade Decl., Ex. 1 (the
attomeys
Meade Decl., Ex. 1
leaked IMs) & Ex. 2 (The New Yorker article). In the leaked IMs, Mr. Zuckerberg expressed his
lMs) &
article). In the leaked lMs, Mr. Zuckerberg

For the convenience of the Court, most of the other documents cited herein are attached
of
of
to 1:07-cv-l0593
as exhibits to the Declaration of Tyler Meade. Other docket citations are to 1:07-cv-10593
the
Meade. Other docket
page citations
except where another case number is specified. In most cases, page citations are based on the
specified. In most
document's original pagination, rather than the docket pagination added at the top at the time of
original
rather than the docket
filing. The following syntax identifies the few exceptions "at p. 3 of 14."
filing. The following syntax identifies
few
of
2
2
As indicated, the Founders do not know whether these IMs are genuine. The "allegedly
indicated, the
know whether these IMs are genuine.
bona lide" qualification stated in the text applies to each reference to "lMs." Likewise, the
bonafide" qualification
the text applies to each reference to "IMs."
Founders do not know whether The New Yorker article is accurate. Any reference to that article
is accurate. Any reference
in this brief should be viewed with this understanding in mind.
3
3
This publication is now known as the Business Insider. See N. Carlson, "At Last — The
Carlson, "At Last Business Insider.
Full Story Of How Facebook Was Founded," Business Insider, Mar. 5, 2010,
Of
15,
<http://www.businessinsideLcom/how-Facebook-was-founded-20 10-3>
<http://www.businessinsider.com/how-Facebook-was-founded-2010-3> (accessed April 15,
2011).
2011 ).
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intent to deceive the Founders into thinking he was working in partnership with them to develop
a planned social networking site, when in fact he intended to usurp the opportunity and develop
his own site which became Facebook.
While Mr. Zuckerberg was leading the Founders to believe he was developing their site,
he was sending IMs to others stating that he was intentionally delaying his work with the

Founders to develop Facebook. ("But they made a mistake haha. They asked me to make it for
to develop Facebook. ("But tbey made
haha. They asked me to make
them. So I'm like delaying it so it won't be ready until after the Facebook thing comes out").
So I'm like delaying it so it won't be ready until after the Facebook thing comes
Dec!.,
Meade Decl., Ex. 1 at p. 40f7. In one IM, Mr. Zuckerberg bluntly describes his intentions with
p. 4 of 7. In one IM, Mr. Zuckerberg bluntly describes his intentions
of7
respect to his business dealings with the Founders: "I'm going to f"** them." Id. at p. 5 of 7
business dealings with the Founders: "I'm
f***
Id.

(expletive altered). According to The New Yorker article entitled "The Face of Facebook," a
altered). According
of
small group of lawyers and Facebook executives reviewed the messages, in a two-hour meeting

in JanuQlY, 2006, at the offices of Jim Breyer, the managing partner at the venture-capital firm
January,
of
Accel Partners,
Dec!.,
Acce! Partners, Facebook's largest outside investor. Meade Deel., Ex. 2 (The New Yorker
outside investor.
(emphasis added).
Facebook apparently
article) {emphasis added). Yet Facebook apparently never produced these IMs.
The First Circuit's decision in Anderson v. Cryovac, Inc., 862 F.2d 910, 928-930 (1st Cir.
910,928-930
Anderson v. Cuovac,

1988) demonstrates that an inquiry is warranted here. In Anderson, as here, the Plaintiffs learned
demonstrates that an inquiry is warranted here.
of
during the pendency of an appeal that key evidence (there, a water contamination report) was not
produced in discovery, and they brought a motion to set aside the judgment under Rule 60(b).

Id.
Id. at 922. The district court refused discovery and then denied the motion. Id. at 923. The First
The district court refused discovery and then
Id. 923. The First
Circuit held that it was error to deny the motion without first inquiring whether the failure to

produce the evidence was intentional: "[w]here there has been an unrevealed failure to make
was intentional: "[ w]here there has been an unrevealed failure
knowledge and intent is of decretory
in a
discovery, the offender's knowledge and intent is of decretory significance in a proceeding under

Rule 60(b)(3)." Id. at 930. The reason an inquiry is required is that different standards apply in
Id.
The reason an inquiry is required is that different standards

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Rnle
deciding a Rule 60(b)(3) motion depending on whether the suppression was accidental or

intentional. Jd. at 925-27.
Id.
nnder
The threshold for an inquiry under Anderson is met here. As in Anderson, significant
met here.
if
relief
evidence was withheld in discovery. In order to know what, if any, relief the Founders are
in discovery. In order to know

entitled to, the Court must first determine, through an inquiry, whether the Facebook Defendants
intentionally suppressed the leaked IMs.
THE CIRCUMSTANCES STRONGLY INDICATE THAT THE FACEBOOK
II. THE CIRCUMSTANCES STRONGLY INDICATE THAT THE FACEBOOK
DEFENDANTS WRONGFULLY
DEFENDANTS WRONGFULLY WITHHELD THE LEAKED INSTANT
MESSAGES

A.

IMs Despite
The Facebook Defendants Failed To Produce The Leaked IMs Despite The
To
Founders 2005 Request For All Of Mr. Zuckerberg's Communications
2005 Request For All Of Mr. Zuckerberg's
Relating To Harvard Connection.
To Harvard

requests
The Founders served their initial discovery requests in April 2005, requesting among

other things: "All email(s) and other communications between Mark Zuckerberg and any other
person relating in any way to the website that was to be known as Harvard Connection." Meade
was to be known as Harvard Connection."
Facebook Defendants
Decl., Ex. 3 at pp. 5-6 (Request No.7). On May 31, 2005, the Facebook Defendants responded
No. 7). On May 31, 2005,
4
in pertinent part:4 "Defendants will produce non-privileged responsive documents to the extent
Defendants

such documents exist in their possession and are located by a reasonable search." Id. The leaked
reasonable
IMs are clearly communications from Mr. Zuckerberg relating to the Harvard Connection
Yet Facebook Defendants apparently never
website. Yet Facebook Defendants apparently never produced the leaked IMs.

4

The Facebook Defendants purported to assert generalized objections in response to
Request No. 7, but these objections were ineffective as a matter of law. See, e.g., Novelty, Inc. v.
No.7,
oflaw.
Mountain View Marketing, Inc., 265 F.R.D. 370, 375 (S.D.Ind. 2009) ("Objections are valid only
View Marketing,
if they specifically apprise the opposing party, and the Court, about the nature of the otherwise
of
responsive docnments that the responding party will not produce ..... Thus, 'general objections'
responsive documents that the responding party will not produce. . Thns,
made without elaboration, whether placed in a separate section or repeated by rote in response to
each requested category, are not 'objections' at all-and will not be considered") (internal citation
'objections' at all-and will not be considered") (internal
category, are
omitted).
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Case 1:07-cv-10593-DPW Document 360

B.
.

Filed 08/19/11 Page 10 of 30

The Leaked IMs Were Reportedly Sent I,'rom The Laptop Mr. Zuckerberg
Leaked IMs Were Reportedly Sent From The Laptop
Used At Harvard.
Used At Harvard.

If The New Yorker article is accurate, the leaked IMs were sent from the computer Mr.
Zuckerberg used at Harvard. Meade Decl., Ex. 2 at p. 5 of 12 ("To prepare for litigation against
Harvard. Meade Decl., Ex. 2 at p. 5 of 12 ("To prepare for litigation
computer
the Winklevosses and Narendra, Facebook's legal team searched Mr. Zuckerberg's computer and
Narendra, Facebook's
Mr.

came across IMs he sent while he was at Harvard"). Circumstances suggest this computer was a
while he was Harvard"). Circumstances suggest this computer
laptop that has been variously described by Defendants as "Device 371-01," Mr. Zuckerberg's
Defendants as "Device
Mr.
computer which
used in
"original computer which he used at Harvard," and the "hard drive" he used in the 2003-2004
timeframe. 5
timeframe.5
18,
Initially, the Facebook Defendants claimed this computer was lost. In an August 18,
Defendants claimed this computer was lost. In an

2005 court filing, Joshua Walker, an attorney at Orrick, Herrington & Sutcliffe LLP ("Orrick"),
&
finn
the Facebook Defendants wrote:
of
the firm representing the Facebook. Defendants wrote: "Plaintiff incorrectly makes much of the

absence of Zuckerberg's computer that is no longer in his possession. Defendant Zuckerberg
in his possession. Defendant
Zuckerberg's
of
would be willing to provide the hard drive he had during the winter of 2003-04, but despite

extensive searches, he does not have it." Meade Decl., Ex. 6 at p. 15. In fact, Max Kelly, the
he does not have it."
Ex.
p. IS. In fact, Max
person whom the Facebook Defendants designated most knowledgeable about their forensic
review of the relevant Facebook computers, testified that this computer was not lost. According
of
computers, testified that this computer was not lost.

to Mr. Kelly, Mr. Zuckerberg used this laptop until late July 2005 when he turned it over to IT
personnel at Facebook. Meade Decl., Ex. 11 at pp. 177-178; see also id at Ex. 10 at p. 3.
Facebook. Meade Decl., Ex. 11
177-178;
10
5

See Meade Decl., Ex. 4 ("We currently have reason to believe the devices we have
Ex.
(a) Mark
located are {a) Mark Zuckerberg's original computer which was used while Mr. Zuckerberg was
at Harvard"), Ex. 5 ("This CD contains .... from Mark Zuckerberg's original computer he used
contains . . from Mark Zuckerberg's original computer
15
us[ed]
Ex.
at Harvard"), Ex. 6 at p. 15 (stating that Mr. Zuckerberg "Frequently us[edj his laptop as a
I
while at
server" while at Harvard), Ex. 7 at p. 1 (referring to "the laptop computer that Mark Zuckerberg
Ex. ("this disk contains . . from Mark Zuckerberg's hard drive (previously
used at Harvard"), Ex. 8 ("this disk contains ...from Mark Zuckerberg's hard drive (previously
19
the
371-01 "),
designated 371-01"), Ex. 9 at p. 19 ("when the Facebook was created, the server actually was a
10
12
371-01
laptop computer"), Ex. 10 at p. 12 ("device 371-01 is a hard drive that Mark Zuckerberg used in
the 2003-2004 timeframe").
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By October 2005 at the latest, Mr. Zuckerberg's laptop was in Orrick's possession.
2005 at the latest, Mr. Zuckerberg's
was in

Meade Decl., Ex. 11 at pp. 177-179. In a November 17, 2005 email, Mr. Walker announced that
11
177-179. In a November 17, 2005 email.Mr. Walker announced
OlTick
"recently located
devices
from
Orrick had "recently located additional electronic devices which may include data from early to
Meade Decl., Ex. 12 at p. 1. In November 23, 2005 letter, Orrick attorney Robert
mid 2004." Meade Decl., Ex. 12 at p. 1. In aaNovember 23, 2005 letter, Orrick attorney Robert

Nagel identified one of these devices as "Mark Zuckerberg's original computer which was used
of
computer
while Mr. Zuckerberg was at Harvard." Meade Decl., Ex. 4.
was Harvard." Meade Decl., Ex.
C.

The Facebook Defendants' Conducted A "Thorough" Forensic Examination
Facebook Defendants'
A "Thorough"
Of Mr. Zuckerberg's Laptop.

By their own admission, the Facebook Defendants thoroughly examined the contents of
all relevant computers, including Mr. Zuckerberg's laptop. Meade Decl., Ex. 44at p. 1. On
computers, including Mr. Zuckerberg's laptop. Meade Decl., Ex. at p. I.
18,2005,
1.
of
November 18, 2005, lead attorney I. Neel Chatterjee of Orrick described the Facebook
search to the Court:
Defendants' search to the Court:
Okay. Now when you say you searched, what have you done
THE COURT: Okay. Now when you say you searched, what have you done with respect
to hard drives?
MR. CHATTERJEE: We have, do you mean have we imaged them, is that your
question? We~
question? We—
THE COURT: Have you looked for deleted items on them?
MR. CHATTERJEE: Yes.
MR. CHATTERJEE: Yes. We've, I mean obviously there's" mean obviously there's
THE COURT: Have you, have you done what they, if they got the mirror image, have you
they, if
you,
done what they're going to do?
MR. CHATTERJEE: We've done some of it. We're going to do some more of it because,
of it. We're going to do some more of it because,
we notified them yesterday. We think we 'vefound some additional material. We're not
them yesterday. We
we've found some additional material. We're
is,
trying to take the forensic images
information
sure what it is, and we're trying to take the jorensic images and provide that information
if responsive.
to them if it's responsive.
THE COURT: Well, it seems to me that the way, the way things work is that the plaintiff
of
makes a request for evidence that's relevant to the claims and defenses of either party of
which they're entitled to under the rnles. If they've requested this stuff and you have not
rules. If
entitled
stuff
it,
objected to it, then it seems to me it's your burden to produce it. And I normally would
to
not go to allowing one party to have a mirror image of another party's computer unless I
to have a
image of another party's
was, unless I had some reason to believe number one that it wasn't being, that, you know,
one
that defendant wasn't doing it to the extent that they were obligated to do it under the
wasn't doing it
federal rnles, or there was some sort of chicanery involved, and IIthink that's, that's
rules, there was some sort of chicanery involved, and think that's, that's
where we are on, on this particular things.
MR. CHATTERJEE: We, we've produced everything we've been able to find and we've
We, we've
we've
find
tojind
searchedfairly
searched fairly thoroughly of all, all the electronic devices we've been able to find to
of all,
devices
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date,
produced the code
date, and we continue to do that. So, Your Honor, I mean, we've produced the code that
we've been able to find. Now what the plaintiff wants to find, is they want to find the
we've been able to tind. Now what the plaintiff wants to find, is they want to find
Harvard connection code —
Harvard connection code THE COURT: Right.
MR. CHATTERJEE: - on these laptops. It isn't there. They may not be happy about
— on these laptops. It isn't there.
a
They want to find Harvard connection code
into
that, but that's a truism. They want to find Harvard connection code copied into the
Facebook code that we produced. That isn't there. They're not happy about that.
Facebook code that we produced. That isn't there. They're not happy about
We've, there are some pieces of information —
We've, there are some pieces of information THE COURT: Well, they're not convinced it's not there. That, that's the issue.
COURT: Well, they're not convinced it's not there.
CHATTERJEE: Right, and Your Honor, we searched and, and MR. CHATTERJEE: Right, and Your Honor, we searched and, and —
THE COURT: Right.
MR. CHATTERJEE: —some evidence simply may not exist anymore. We, we've looked
- some evidence simply may not exist anymore. We,
not sure
relief of
thoroughly for it, and I'm not sure the Draconian relief of mirror imaging every single
of these systems is going one of these systems is going —
THE COURT: You're saying it [mirror imaging] would do no good because you've
do no good because you've
it,
already done it, and you can't find it.
Yes,
Honor.6
MR. CHATTERJEE: Yes, Your Honor 6

Meade Decl., Ex. 9 at pp. 20-22 (emphasis added).
On November 23, 2005, Orrick attorney Robert D. Nagel sent a letter indicating that the
23,2005,
Facebook Defendants' ongoing analysis had progressed sufficiently for him to report that
ongoing analysis
Defendants believed that the recently located devices contained "responsive information."
analysis ofMr.
laptop
Meade Decl., Ex. 4. By January 7, 2006, Defendants' analysis of Mr. Zuckerberg's laptop was
Ex. 4. By January 7,

sufficiently complete for them to produce selected documents. Meade Decl., Ex. 5. Defendants
for them to produce selected documents. Meade Decl., Ex. 5. Defendants
documents from Mr. Zuckerberg's laptop the following month.
produced additional documents from Mr. Zuckerberg's laptop the following month. Meade
Decl., Ex. 8.
Februmy
forensic examination ofthe
By February 6, 2006, Defendants' forensic examination of the laptop was apparently
complete. Mr. Nagel declared in
hard drive
complete. Mr. Nagel declared in a letter: "The hard drive from this laptop was thoroughly

6

sti11looking
Curiously, Mr. Chatterjee told the Court at this hearing that Defendants were still looking
for the computer that Mr. Zuckerberg had used at Harvard, even though it was clearly in Orrick's
Harvard,
though was
in
fulcrum
possession by then. Compare Meade Decl., Ex. 9 at p. 29 ("The person at the fulcrum is Mark
Compare Meade Decl., Ex. 9 at p. 29 ("The person at
Zuckerberg and if, if we, we don't have the, the computer we, we are still looking for it, and we
if
have the, the computer we, we
sti11looking
may find it, that he had during the relevant time period, that's the issue") with Ex. 10 at p. 15
time period,
10
15
(acknowledging that Mr. Zuckerberg's computer, i.e. Device 371-01, was turned over to Orrick
Mr.
in October 2005).
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forensically examined and all recoverable, files were recovered." Meade Decl., Ex. 7 at p. 2
Dec!.,
forensically examined and all recoverablefiles

(emphasis added); see also id. at p. 1 (making clear that the laptop referenced in the
aforementioned quote is "the laptop computer that Mark Zuckerberg used at Harvard").
D.

The Facebook Defendants Never Indicated They Were Withholding
Defendants Never indicated
Responsive Communications.

The Facebook Defendants led the Founders and this Court to believe that they were

withholding only two narrow categories of documents. On August 18, 2005, after noting that
categories documents. On August 18,2005,
they had produced "thousands of pages of documents," the Facebook Defendants told this Court:
of
"The only documents being withheld are documents created after May 21, 2004, and student
records
Zuckerberg which predate his involvement in HC."
records of Mark Zuckerherg which predate his involvement in HC." Meade Deel., Ex. 6 at p. 6;
Decl.,
Ex. at p. 52. Mr. Zuckerberg's electronic communications from late 2003
see also id. at Ex. 9 at p. 52. Mr. Zuckerberg's electronic communications from late 2003 and
of
early 2004 relating to the Harvard Connection website do not fit into either of these categories.

As the litigation progressed, the Facebook Defendants continued to represent that they
documents. In November
the Court: "[W]e've
had not withheld documents. In November 2005, Mr. Chatterjee told the Court: "[W]e've
produced everything we've been able to find." Meade Decl., Ex. 9 at p. 21; see also id. at Ex. 6
everything we've
to find." Meade Decl., Ex.
("Plaintiff s case appears to rest on
shortness of
at p. 18 ("Plaintiff's case appears to rest on the shortness of time taken by Mark Zuckerberg to
complete theFacebook.comwebsite. All documents from that time period (i.e. early 2004) have
website. All documents from that time period (i.e. early 2004)
2006,
been produced, except pre-HC student records"). Likewise, in February 2006, the Facebook
pre-HC student records"). Likewise, in
Defendants stated that they had "produced everything they have been able find ... based
Defendants stated that they had "produced everything they have been able toto find . based upon
thorough, diligent search." Meade
a thorough, diligent search." Meade Decl., Ex. 7 at p. 2.

Defendants told the Founders that they had produced all documents that predated May
21,2004
9
21, 2004 "regardless of relevance." Meade Decl., Ex. 9 at p. 44 (the Founders' prior counsel
relevance." Meade Decl.,

stated on the record his understanding that "The defendants agreed to produce responsive pre
21" documents 'irrespective of relevance'" which understanding was not corrected
May 21stdocuments 'irrespective of relevance'" which understanding was not corrected by

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Defendants); id. at pp. 47-48 (Defendant Saverin's counsel states: "Where we use the May 21,
of
2004 date, it was really, Your Honor, just a, an attempt by us to reach some kind of compromise
of
to offer the plaintiff some of the documents that they had asked for even though the requests

themselves were vastly overbroad"); see also id. at Ex. 10 at p. 1 ("At every opportunity,
Facebook Defendants have complied with ConnectU's numerous requests for information from
with
of
the various recovered electronic devices, even where the requests were of questionable
relevance") (emphasis added).
E.

Defendants Repeatedly Promised To Snpplement Their Production And
To Supplement Their
Represented To Plaintiffs And The Court That They Were Not Withholding
That They
Documents.

Throughout the litigation, Orrick attorneys represented to the Founders that they would
promptly produce any newly found responsive documents, consistent with their obligation under
..
Fed.R.Civ.P. 26(e), which provides: "A party who has .... responded to an interrogatory, request
for production, or request for admission ... must supplement or correct its ...response: ['q] (A)
production, or request for admission „ .
correct its . . response: [~l
in a timely manner if the party learns that in some material respect the disclosure or response is
if
incomplete or incorrect, and if the additional or corrective information has not otherwise been

made known to the other parties during the discovery process or in writing." For example:
to
parties during the discovery process or in writing."
•

of
The November 17, 2005, email from Mr. Walker of Orrick regarding the
17,2005,

"additional electronic devices" that had been located included this representation:
electronic devices"
currently have
"We currently have no information that suggests whether or not the devices

contain responsive documents or relevant information. If they do, and without
do,
infol1nation. If
prejudice to our present motions, we will supplement earlier responses and
motions.
production as necessary, including those which you discussed with Monte Cooper

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Wednesday,
16,"
and Rob Nagel on Wednesday, November 16." Meade DecL, Ex, 12 (emphasis
Decl., Ex.
added),
added).
•
•

23,2005
of
The November 23, 2005 letter from Mr, Nagel of Orrick stated the following with
Mr.
respect to the newly located devices and Orrick's continuing obligation to
continuing
devices and

"If
materials
produce responsive information: "If responsive materials (including any software
code) are found, we will immediately supplement our production,. ., ." Meade
found,
production
DecL,
Decl., Ex. 4 (emphasis added).
•
•

30,2005
A similar promise to supplement was made in a November 30, 2005 letter.

Referring again to the newly discovered devices, Mr. Nagel promised: "If the
promised: "If
of
existence of responsive content is confirmed, Facebook Defendants will promptly

supplement their production with any responsive information discovered on these
devices." Meade Decl., Ex. 13 (emphasis added).
DecL,
J anuary2008
Yet, for the two years between the reported January 2006 meeting and the January2008

agreement to stay discovery pending mediation, Orrick apparently never produced the leaked
IMs.

F.

The January 2006 Meeting Reported In The New Yorker Article.
January 2006

The Facebook Defendants did not produce the IMs, even though they reportedly
discussed and reviewed them with counsel in a two hour meeting in January 2006, two years
before the February 2008 mediation.
Indeed, the September 2010 article in The New Yorker included at least three revelations
artic1e)7 First, and most
that support ordering an inquiry. Meade Decl., Ex. 2 (The New Yorker article).7First, and most
ordering an inquiry. Meade DecL,

importantly, the author, Jose Antonio Vargas, reported that "Facebook's legal team "found
author,
importantly,
Vargas, reported that "Facebook's legal team" found
7

J. Vargas, "The Face of Facebook," The New Yorker, Sept. 20, 2010, <http://www.
Vargas,
The
newyorker.com/reporting/2010/09/20/100920fajact_vargas> (accessed April 15, 2011).
newyorker,com/reporting/20 10/09/2011 00920fa_fact_vargas>
15, 20 II).
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Mr.
the IMs in conjunction with "litigation against the Winklevosses." Second, Mr. Vargas
reported that Facebook executives and attorneys reviewed and discussed the leaked IMs in a
January 2006 meeting, more than two years before the February 2008 mediation. Mr. Vargas
2006 meeting, more than two years before the February 2008 mediation.
quotes a reliable source, Facebook director and prominent venture capital investor Jim Breyer, to
appears
support that this meeting in fact occurred. Third, Mr. Zuckerberg appears to publicly
this meeting fact occurred. Third,

acknowledge that these IMs are genuine. Here is the most relevant part of the article:
these IMs are genuine. Here is
part of
acknowledge
To prepare/or litigation against the Winklevosses and Narendra, Facebook's
prepare for
the Winklevosses
Narendra, Facebook's
legal team searched Zuckerberg 's computer and came across Instant Messages he sent
's
while he was at Harvard. Although the IMs did not offer any evidence to support the
of
claim of theft, according to sources who have seen many of the messages, the IMs
portray Zuckerberg as backstabbing, conniving, and insensitive. A small group of
group of
lawyers and Facebook executives reviewed the messages, in a two-hour meeting in
January, 2006, at the offices of Jim Breyer, the managing partner at the venture-capital
0/ Breyer,
January, 2006,
firm Acce! Partners, Facebook's largest outside investor.
largest
firm Accel Partners,
The technology site Silicon Alley Insider got hold of some of the messages and,
Silicon
of
of
this past spring, posted the transcript of a conversation between Zuckerberg and a friend,
outlining how he was planning to deal with Harvard Connect:
FRIEND: so have you decided what you are going to do about the websites?
i'm going
ZUCK: yea I'm going to fuck them
ZUCK: probably in the year
ZUCK: *ear
'ear
According to two knowledgeable sources, there are more unpublished IMs that
interview,
in
are just as embarrassing and damaging to Zuckerberg. But, in an interview, Breyer told
damaging to Zuckerberg.
me, "Based on everything I saw in 2006, and after having a great deal of time with Mark,
me, "Based
of
my confidence in him as C.E.O. of Facebook was in no way shaken." Breyer, who sits
as C.E.O. Facebook was in no way shaken."
board, added, "He is a brilliant individual
like
of
on Facebook's board, added, "He is a brilliant individual who, like all of us, has made
When asked Zuckerberg about the IMs that have already
mistakes." When II asked Zuckerberg about the IMs that have already been published
online,
online, and that I have also obtained and confirmed, he said that he "absolutely" regretted
confirmed,
them. "If you're going to go on to build a service that is influential
them. "If you're going to go on to build a service that is influential and that a lot of
people rely on, then you need to be mature, right?" he said. "1 think I've grown and
people
on, then you need to be mature, right?" he said. "I
learned a lot."
Meade Decl., Ex. 2 at p. 5 of 12 (The New Yorker article) (emphasis added).
Decl., Ex.
of 12
The Facebook Defendants' representations to Plaintiffs and this Court cannot be squared
representations
with this report of the January 2006 meeting.

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Case 1:07-cv-10593-DPW Document 360

G.
G.

Filed 08/19/11 Page 17 of 30

Complied
All
The Facebook Defendants Repeatedly Claimed They Had Complied With All
Discovery Obligations
Produce Responsive
Discovery Obligations and Promised To Promptly Produce Responsive
Documents As They Were Discovered.

Following the reported January 2006 meeting, the F acebook Defendants continued to
Facebook
represent that they would supplement their production of documents as new information was
discovered. For example, in the March 29, 2006 court filing, two months
discovered. For example, in the March 29, 2006 court filing, two months after the reported
January 2006 meeting, OITick attorney Monte Cooper wrote: "If any existing discovery responses
"If any existing
Orrick
ambiguous,
are incorrect or ambiguous, the Facebook Defendants will, of course, supplement them." Meade
will, of

p.
Decl.,
Deel., Ex. 10 at p. 18 (emphasis added).
also
Orrick also claimed that it had fully complied with its discovery obligations. In the
fully complied with its discovery obligations.

March 29, 2006 filing, Mr. Cooper stated: "At every opportunity, Facebook Defendants have
filing, Mr.
complied with ConnectU's numerous requests for information from the various recovered
numerous requests
Likewise, in a related April 24, 2006 filing, approximately
electronic devices." Id. at p. 1. Likewise, in a related April 24, 2006 filing, approximately three
"Facebook
Suppressed
months after the January 2006 meeting, Mr. Cooper declared: "Facebook Has Not Suppressed
Meade Decl., Ex. 14 at p. (underlining in original).
Evidence."Meade Decl., Ex. 14 at p. 88(underlining in original).

During a July 25,2007 hearing regarding discovery, the Court stated that it would be
25, 2007
if
a delay
"very disappointed" if there were a delay in discovery, adding "do you understand Mr.

Chatterjee?" Orrick attorney Chatterjee responded: "I do, your Honor. We haven't slowed a
Orrick attorney Chatterjee responded:
We haven't
single thing down on discovery." Meade Decl., Ex. 15 at p. 46 (emphasis added). Chatterjee
down
Decl., Ex. 15 at p. 46 (emphasis added).
half
ofIMs
made this claim a year and a half after the reported January 2006 review of IMs that were never

produced.
H.
H.

The Parmet Dispute.

By July 2007, the parties agreed to create a protocol for the imaging and analysis of
analysis
various electronic devices, but disagreed
of
Defendants' various electronic devices, but disagreed on the breadth of the search that the

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Founders' forensic expert, JeffParmet, would perform. Meade Decl., Ex. 16 at pp. 2-3, 6-9. By
forensic expert, Jeff Parmet, would pedal''. Meade Decl., Ex. 16 pp. 2-3, 6-9.

this time,
this time, the Founders' former counsel had focused discovery efforts on a search for code rather
material such as Mr.
than other material such as Mr. Zuckerberg's communications regarding Harvard Connection.
Connection.
generally, Meade Decl., Ex. 9 at pp. 10-12.
given Defendants'
See generally, Meade Decl., Ex. 9 at pp. 10-12. This is understandable given Defendants'
No. 7,
response to Request No.7, their representations that they had produced all documents from
fi'om
before May 21, 2004 regardless of relevance, and their many promises to supplement their
of

discovered.8
production as new documents were discovered. 8
The Facebook Defendants insisted on and obtained a strict protocol that would only allow
a search for code and that also prevented the expert, Mr. Parmet, from communicating freely

counsel (the parties who hired him). Meade Decl.,
with the Founders and their counsel (the parties who hired him). Meade Decl., Ex. 16 at pp. 6-9
16
&
pp. 5-6, 8. Ostensibly, these measures
& Ex. 17 at pp. 5-6, 8. Ostensibly, these measures were necessary to protect personal
information and Mr. Zuckerberg's privacy. Meade Decl., Ex. 17 at p. 3, Ex. 10 at p. 2 & Ex. 14
and Mr. Zuckerberg's privacy. Meade
17 at p. 3, Ex. 10 at p. &
14
at p. 6 ("Facebook and the individual defendants should not be required to turn their computers
tum
over to ConnectU to enable its 'expert' to leaf through irrelevant, private information belonging
'expert' to leaf through irrelevant, private information
to the individual Defendants. The subject computers have been used not only for developing
Defendants. The subject computers
not
code, but by young men with private lives and other interests besides software").
The Court adopted the final version of the Protocol in a September 13, 2007 Order.
of
13,2007
Meade Decl., Ex. 18. By December 2007, Mr. Parmet apparently viewed some undisclosed
Dec!.,
By December 2007, Mr. Parmet apparently viewed some
information on Zuckerberg's laptop. Reportedly, Mr. Parmet raised this issue with Orrick on
laptop. Reportedly, Mr. Parmet raised this issue with Orrick
December 14, 2007. Meade Decl., Ex. 19 at pp. 7-8. Orrick apparently told Mr. Parmet that
Orrick apparently told Mr. Parmet
2007. Meade Dec!., Ex. 19 at pp.
8

Because the Facebook Defendants led the Founders to believe that all documents
responsive to Request No.7 had been produced (if they predated May 21, 2004, as the leaked
No. 7
(if
1Ms do), the Founders' prior counsel cannot be faulted for not bringing a motion to compel such
IMs
prior counsel cannot be faulted for
a motion compel
communications. See Anderson v. Beatrice Foods Co., 127 F.R.D. 1, 5-6 (D.Mass. 1989)
Beatrice
127
1,5-6
1989)
(addressing the failure to bring a motion to compel where plaintiffs were led to believe no
compel
led
additional documents existed "By [a] lack of candor and subsequent misdirection").
of
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Defendants would produce the documents, or at least those that were responsive to discovery
requests and not privileged. Id. at p. 23.
Id.

Without access to the Parmet documents, the Founders do not know whether the leaked
access to
computer forensic expert JeffParmet found. Presumably, they areIMs are among what the computer forensic expert Jeff Parmet found. Presumably, they are —

that is unless there are two categories of information on Mr. Zuckerberg's laptop that the
on Mr. Zuckerberg's
of
Facebook Defendants failed to produce. If so, The New Yorker article also raises concerns about
Defendants failed to produce.
2008 hearing in this Court. The Court asked Facebook's counsel a series of
the June 2, 2008 hearing in this Court. The Court asked Facebook's counsel a series of questions

about the documents Mr. Parmet found. First, the Court asked whether they were in "the
Mr.
found. First, the Court
production track" at the time the Parmet dispute arose (which was in December 2007) and Mr.

Chatterjee answered affirmatively. Meade Decl., Ex. 19 at pp. 29-30. Next, the Court asked
affirmatively.
at pp. 29-30. Next, the
where
these
Id.
"Well, where were these documents that Mr. Parmet referred to in the disclosure queue?" Id. at
p. 30. Mr. Chatterjee responded that they were going to be produced "in mid-to-late February"
Mr. Chatterjee responded that they were going
p.

2008. Id. at p. 30.
wrong with Mr.
At first blush, there appears to be nothing wrong with Mr. Chatterjee's last response, and
an inquiry may reveal that it was appropriate. On the other hand, if (a) the leaked IMs are what
appropriate. On the other hand, if (a) the leaked
Pamlet
Mr. Parmet found, and (b) The New Yorker article is accurate and Defendants and their litigation

team had known about these communications for more than two years and not disclosed them,
A more candid response would have
Mr. Chatterjee's response is incomplete at best. A more candid response would have disclosed
Chatterjee's response
that the Facebook Defendants had known about the documents for more than two years but had
F acebook
not produced them, at which point the Court would have had the opportunity to inquire further.

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III. THE FOUNDERS ARE ENTITLED TO AN INQUIRY AND DISCOVERY
THE FOUNDERS ARE ENTITLED TO AN INQUIRY AND DISCOVERY
UNDER ANDERSON
A.

Legal
Legal Standard.

60(b )(3),
Under Rule 60(b)(3), "the court may relieve a party or its legal representative from a final

... (3)
judgment, order, or proceeding for the following reasons: ['1] . . .(3) fraud (whether previously
or
called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party."
an
Fed.R.Civ.P. 60(b). This rule applies to the Order of dismissal (Dkt. 353) entered by this Court
Fed.R.Civ.P.60(b). This rule applies to the Order of dismissal (Dkt. 353) entered by
&
§
pursuant to the 2008 settlement. 11, Wright, Miller, Kane, Federal Practice & Procedure, §
settlement. 11, Wright, Miller, Kane,
&
&
1995)
2852 at pp. 233-235 & ns. 7 & 9 (2d ed. 1995) (Rule 60(b) applies to "a final judgment, order, or

proceeding); see also Triange Capital Corp. v. I.M.C Management Corp., 127 F.R.D. 444, 446
Triange
Corp. v. I.M.C. Management
1989)
(D. Mass. 1989) (acknowledging authority under Rule 60(b) to vacate court-approved

settlement); Conerly v. Flower, 410 F.2d 941 (8tth Cir. 1969)(consent judgment set aside under
v.
941 (8 Cir. 1969) (consent judgment set aside under
60(b)(3»;
v.
Cir.
Rule 60(b)(3)); Kelly v. Greer, 334 F.2d 434, 436 (3d. Cir. 1964) (citing Rule 60(b) for the
following proposition: "Of course the district court has jurisdiction to vacate its own orders of
"Of

dismissal which were based upon the stipulation of the parties in reliance upon their settlement
stipulation of
(7 tl Cir. 1985) (recognizing
agreement"); McCall-Bey v. Franzen, 777 F.2d 1178, 1186 (7th' Cir. 1985) (recognizing that
McCall—Bey v. Franzen,
a district
a
even
of
"Any time a district judge enters a judgment, even one dismissing a case by stipulation of the
of
parties, he retains, by virtue of Rule 60(b), jurisdiction to entertain a later motion to vacate the
judgment on the grounds specified in the rule, some of which have no time limit").9
of
limit")Y
The withholding of information that should have been disclosed in discovery may be
infom1ation
relief
60(b)(3). See, e.g., Stridiron v.
grounds for relief under Rule 60(b)(3), See, e.g., Stridiron v. Stridiron, 698 F.2d 204 (3d

Cir.1983); Square Constr. Co. v. Washington Metropolitan Area Transit Authority, 657 F.2d 68
Constr. Co. v. Washington Metropolitan
9
9

It should be noted that the latter two cases implicate a dispute of authority as to a district
of
court's authority to enforce a settlement agreement,
court's authority to enforce a settlement agreement, but that is not an issue here. See generally
Hamilton v. School Committee of City of Boston, 725 F.Supp. 641, 643 (D.Mass. 1989).
a/City a/Boston,
1989).
F.Supp.

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(4 th Cir. 1981);
v.
Cir.1978). This is true even if
(4thCir. 1981); Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.1978). This is true even if the
rd
(3
failure to disclose is unintentional. 12, Moore's Federal Practice, § 60.43[1][a] at p. 60-138 (351
is unintentional. 12,

ed.2011).
ed. 2011).

In Anderson v. Ciyovac, the First Circuit set forth the standards for analyzing Rule
v. Oyovac,
60(b )(3) motions. Like this
60(b)(3) motions. Like this case, Anderson involved the failure to produce evidence responsive
F .2d
The First Circuit held that even in
to discovery requests. Anderson, 862 F.2d at 922. The First Circuit held that even in the context
"[ f]ailure to disclose or
of errors made in good faith "Mailure to disclose or produce materials requested in discovery
can constitute 'misconduct' within the purview of this subsection [Rule 60(b)(3)]." Id. at 923.
'misconduct' within the purview of

The party seeking to set aside a judgment under Rule 60(b)(3) must prove the misconduct by
and
926. Of course, not all discovery misconduct
"clear and convincing evidence." Id. at 923-924, 926. Of course, not all discovery misconduct
Id.
requires setting aside a judgment. Rather Anderson holds that in order to re-open the case as a
aside a judgment.
of
consequence of discovery abuse "the challenged behavior must substantially have interfered with
party's ability fully
the aggrieved party's ability fully and fairly to prepare for and proceed at trial." Id. at 924
if
(emphasis in original)(citations omitted). "Substantial impaiii lent may exist, for example, if a
original)(citations omitted). "Substantial impairment
party shows that the concealment precluded inquiry into aaplausible theory ofliability ....." Id.
concealment precluded inquiry into plausible theory of liability . . " Id.

at 925.
In Anderson, the First Circuit established different standards for proving "substantial
interference" depending on whether the misconduct was intentional or accidental. Id. at 926.
Interference"
Id.
"The burden can also be met by presumption or inference, if the movant can successfully
burden can also be met
or
if

demonstrate that the misconduct was knowing or deliberate. Once a presumption of substantial
deliberate. Once a presumption of substantial
interference arises, it can alone carry the day, unless defeated by a clear and convincing
demonstration that the consequences of the misconduct were nugacious." Id. Alternatively, if
were
Id.
the misconduct was not intentional, then no presumption applies and the movant must prove "by

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of
a preponderance of the evidence that the nondisclosure worked some substantial interference

with the full and fair preparation or presentation of the case." Id.
of
fair

B.

The Failure To Produce The IMs Suggests Misconduct, But Confirmatory
Misconduct, But
Discovery Is Necessary.

Anderson held that "[0 lnce a proper discovery request has been seasonably propounded,
discovelY
"[o]nce

we will not allow a party sentiently to avoid its obligations by filing misleading or evasive
responses or by failing to examine records within its control." Id. at 929. There, a water
Id. 929. There, a water
court
contamination report was not produced despite numerous discovery requests. The court found
despite numerous discovery requests.

that the district court had erred in denying a motion for inquiry where the plaintiffs had diligently
requested the report and the defendant had actual or constructive knowledge of the report but
of

failed to produce it. Id.
Id.
In the present case, the detailed factual summary above shows the Founders made
similarly diligent requests calling for the production of the leaked IMs. The Facebook
for the production of the leaked IMs.
documents
Defendants promised to produce all responsive documents and affirmatively led the Founders to
believe that, in fact, they had produced all responsive documents. They also repeatedly promised
documents. They also repeatedly
their
discovelY
to supplement their production promptly, as the federal discovery rules require, as they found
new responsive documents. One question to be addressed by further inquiry is whether the
One question to be addressed by further inquiry
time. If the facts in
Facebook Defendants had the IMs "within [their] control" at that time. If the facts in. The New
true-particularly, ifFacebook
Yorker article are true—particularly, if Facebook and its attorneys met in January 2006 and

reviewed the leaked IMs, then the failure to produce them at that time certainly constitutes
ifthis
misconduct under Anderson. In addition, if this January 2006 meeting took place as reported,
ofFacebook's statements
many of Facebook's statements to the court cited above may constitute misconduct. In short,
may constitute misconduct.
strong indications
while there are strong indications that misconduct occurred, the discovery requested in this
motion is necessary to confirm the misconduct.

- 16 16

Case 1:07-cv-10593-DPW Document 360

C.

Filed 08/19/11 Page 23 of 30

Discovery Also Is Necessary To Determine Whether The Failure To Produce
Also Is Necessary To Determine Whether The Failure
The Leaked IMs Substantially Interfered With The Founders' Preparation
IMs Substantially Interfered With The Founders'
Of This Action.

It is not yet possible to address the import of the conduct outlined in this motion for at
ofthe
The New
least three reasons. First, if The New Yorker article is accurate, there are many more damaging
three reasons.

IMs that the Founders have not yet had aachance to review or analyze. 10 Second, the Founders'
Founders have not yet had chance to review or analyze.'' Second,
lead counsel have been denied access to the pleadings and discovery files and thus are operating
339. 11 There cannot be any meaningful
with one hand tied behind their back. See Dkts. 338, 339.11There cannot be any meaningful

analysis until the undersigned counsel has access to all of the relevant information. Hickman v.
511
Taylor, 329 U.S. 495, 511 (1947) ("Proper preparation of a client's case demands that [the

lawyer] assemble information, sift what he[/she] considers to be the relevant from the irrelevant
facts,
his[/her] legal theories and plan big/her]
facts, prepare his [/her] legal theories and plan his[lher] strategy without undue and needless
That is the historical and the necessary way in which lawyers
in
system
interference. That is the historical and the necessary way in which lawyers work in our system

of jurisprudence to promote justice and to protect their clients' interests. "). Third, as described
promote justice and to protect their clients' interests."). Third, as described
below, the relevant analysis differs depending upon whether the failure to disclose this
information was intentional or unintentional. See § III.D., infra. But this much is clear: As in
Anderson, the suppressed evidence was not "some fribbling matter of marginal relevance."
Anderson, 862 F.2d at 930. If genuine, the leaked IMs strongly support many of the allegations
If genuine, the leaked IMs strongly support
of
allegations

in the Complaints, including that Mr. Zuckerberg breached the fiduciary duties he owed to
Mr.
ConnectU and acted with fraudulent intent.

°

10

Meade Decl., Ex. 2 at p. 5 of 12 ("According to two knowledgeable sources, there are
of
more unpublished IMs that are just as embarrassing and damaging to Zuckerberg")
11
new counsel filed a motion to obtain
The Founders' new counsel filed a motion to obtain the complete file to confirm that the
leaked IMs were never produced, but this motion was deemed moot after this Court entered
judgment. Dkts. 338, 339. Separately, the Founders will renew that motion on the grounds that
Dkts. 338, 339. Separately, the Founders will renew that motion on the grounds
of
the jurisdictional landscape has changed with the filing of this motion for inquiry under Rule
60(b ).
60(b).
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Case 1:07-cv-10593-DPW Document 360

Filed 08/19/11 Page 24 of 30

The Founders alleged that a fiduciary relationship arose by virtue ofMr. Zuckerberg's
fiduciary relationship arose by virtue of Mr. Zuckerberg's
agreement to use his best efforts to write software, his involvement with overall website
of
of
development, his pledges of commitment to ConnectU, his acceptance of confidential code and
information
proprietary and confidential management infoiiiiation and procedures, and his knowing

acceptance ofConnectU's trust in exchange for a monetary interest in ConnectU. 1:04-cv-11923
of ConnectU's
in ConnectU. 1:04-cv-II923
1:04-cv-II923
~~
1 ~~
Dkt. 1 at 'I~ 15-18; 1:04-cv-11923 Dkt. 13 at IN 15-18; Dkt. 1 at Irlj 20-21; see also Broomfield v.
Kosow, 349 Mass. 749 {1965) (one of the hallmarks ofa fiduciary relationship is "confidence
(1965) (one the hallmarks of a fiduciary relationship
reposed and accepted"); Warsofsky v. Sherman, 326 Mass. 290, 93 N.E.2d 612 (1950) (joint
v.
Uoint

venturers owe a fiduciary obligation to one another). 12
another),I 2
Whether a fiduciary duty arose because Mr. Zuckerberg accepted the confidences reposed

in him or because he agreed to join the ConnectU venture or both, he owed a duty of utmost
of
loyalty to the Founders. Cardullo v. Landau, 329 Mass. 5, 8 (1952) ("It is well settled that
partners owe each other a fiduciary duty of 'the utmost good faith and loyalty. "'); DeCotis v.
partners owe
a fiduciary duty of 'the
good faith and loyalty.'");
D'Antona, 350 Mass. 165, 168 (1966) ("participants in a joint venture are subject to the same
165,168

fiduciary duties imposed upon members of a partnership"). The few IMs that have been made
upon members of a partnership"). The few 1Ms
12

This is true even if: (1) the contours of the relationship had not been perfectly defined;
ofajoint
Wilson v. Jennings,
Wilson v. Jennings, 344 Mass. 608, 615 (1962) (finding of a joint venture upheld
notwithstanding ambiguity in the nature of the relationship); (2) the arrangement did not
constitute a formal partnership or even a traditional joint venture; Judge v. Gallagher, 17
v.
Mass.App.Ct. 636 (1984) (upholding finding ofa fiduciary relationship among joint venturers
of a
where the arrangement was "sufficiently similar to such an endeavor to create a fiduciary
relationship"); (2) there may not have been an agreement for Mr. Zuckerberg to share in
company losses; Kleinschmidt v. U.S., 146 F.Supp. 253, 256 & n. 4 (D.Mass. 1956) (finding a
v. Us.,
&
of
joint venture even though there was no agreement to share in company losses, stating "All of the
partnership characteristics need not be present"); (3) the Founders may have retained the lion
v.
share of control; Judge v. Gallagher, 17 Mass.App.Ct. at 640 ("While the 'right to participate in
Mass.App.Ct. 640 ("While the
the control or management of the enterprise' is important, and may even be an essential element
important,
joint venture,' the evidence bears out the conclusion that [one of the plaintiffs 1
of a 'textbook joint venture,' the evidence bears out the conclusion that [one of the plaintiffs}
v.
'was more than a spectator in the enterprise. "') (citations omitted); see also Smith v. Jenkins, 626
in the enterprise.") (citations
F.Supp.2d 155, 171 (D.Mass. 2009) ("Whether a relationship of trust and confidence exists is a
171
oftrust
question offact.... ")
of fact....")
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Case 1:07-cv-10593-DPW Document 360

Filed 08/19/11 Page 25 of 30

available to the public constitute strong evidence of a breach of this duty in that they substantiate
of
allegations that Mr. Zuckerberg
the Founders' allegations that Mr. Zuckerberg usurped a business opportunity belonging to
1:04-cv-II923 Dkt. at '111 1,
at,;,; 41-47. lJ They show that Mr.
ConnectU. 1:04-cv-11923 Dkt. 1,1, at ';111, 19, 23; see also id. at 41-47.13They show that Mr.

Zuckerberg knowingly and deliberately used deception and false promises to thwart ConnectU
while he secretly launched Facebook.
Notably, the Founders' breach of fiduciary duty claim gives rise to a sweeping remedy
breach of
available under Massachusetts law that could require Mr. Zuckerberg to forfeit a significant
percentage of his stake in Facebook. "Under Massachusetts law, a court will declare a party a
his
Facebook. "Under Massachusetts law, a
if
constructive trustee of property for the benefit of another if he acquired the property through
fraud, mistake,
of
fraud, mistake, breach of duty, or in other circumstances indicating that he would be unjustly
v.
enriched." Genesis Technical & Financial v. Cast Navigation, 74 Mass.App.Ct. 203, 212 (2009)

v.
(emphasis added), quoting Foster v. Hurley, 444 Mass. 157, 167 (2005). Had Facebook
Mass. 157, 167 (2005). Had
produced these documents in 2006, the Founders would have been well on their way to proving
these allegations and advancing their claim that they were entitled to a constructive trust remedy
ofFacebook.
under which they would potentially own a significant percentage of Facebook.

The leaked IMs are equally important to the Founders' fraud allegations, i.e., that Mr.
to the Founders'
Zuckerberg knowingly and willfully induced the Founders to rely on his false promises to

complete the ConnectU code while he secretly developed and launched Facebook. 1:04-cvwhile he secretly developed and launched Facebook. 1:04-cv-

13

The 2007 Complaint augmented these allegations, alleging that Mr. Zuckerberg
understood that he would "be included in the overall development and control of the project" and
that he agreed "to develop the Harvard Connection Code, and to help launch, promote, and
operate the site and business, in exchange for a beneficial interest in the website, include a
monetary interest in any revenue or other proceeds or benefits from the website." Dkt. 1 at It 28;
from the
Dkt. 1 at,;
at 'M 17-21, 24-32, 41, 73-80. While the first Complaint included a generalized
see also id. at,;,;
73-80. While the first Complaint
prayer for "Other relief as the Court may deem appropriate", the 2007 Complaint explicitly
relief
sought imposition of a constructive trust for this breach of fiduciary duty. Id. at p. 11, 1[1G; 1:04of
bust
of
G; 1:04Id.
cv-11923 Dkt. 1 at p. 11,11F.
11,'1 F.
cv-1l923

'1

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Case 1:07-cv-10593-DPW Document 360

Filed 08/19/11 Page 26 of 30

11923 Dkt. 1 at ,r,;59-60, 63; 1:04-cv-11923 Dkt. 13 at ¶¶ 71-72, 75; Dkt. 11at 'iltj 92-93, 96.
1i 59-60, 63; 1:04-cv-11923 Dkt. 13 at ';,;71-72,75; Dkt. at';~
There appears to be little dispute that the Founders relied on Mr. Zuckerberg's promises to their
Founders relied Mr.

detriment; Mr. Zuckerberg secretly built and launched Facebook while he was supposed to be
Mr.
completing the code for and otherwise assisting with the launch of Harvard Connection. As with
the
for
assisting with the launch of Harvard Connection.
cases, was
element that was in dispute: Did
most fraud cases, it was the scienter element that was in dispute: Did Mr. Zuckerberg knowingly
make a false representation for the purpose of inducing reliance?14
false
relianee?14
If the leaked IMs are genuine, this is the rare fraud case in which there is direct evidence
of
of fraudulent intent. See Arrow Intern., Inc. v. Spire Biomedical, 635 F.Supp.2d 46,58 (D.
Intern., Inc. v.
46, 58

Mass. 2009) ("direct evidence of intent is rarely available"); In re Parametric Technology Corp.,
of
300 F.Supp.2d 206, 216 (D.Mass. 2001) ("It is perhaps possible to imagine a case where
206,216
fraudulent intent could be proved by direct evidence, but in most cases proof of a state of mind
proof
such as scienter is accomplished by inferences drawn from circumstantial evidence."). As one
is accomplished inferences drawn from circumstantial evidence.").
....
district court put it, "Certain issues such as fraud, intent, and knowledge . . . . can often only be
proved by reliance upon circumstantial evidence except in the rare case where there is

uncontroverted proofof a 'smoking gun. '" Tew v. Chase Manhattan Bank, N.A., 728 F.Supp.
proof of a
gun.'" Tew v. Chase Manhattan
1551,1555 (S.D.Fla.1990) (emphasis added).
1551, 1555 (S.D.Fla.1990) (emphasis added). The IMs are the proverbial "smoking gun" on the
- that is if the requested inquiry reveals they
fraud claim —that is if the requested inquiry reveals they are genuine.
of
According to one of the leaked IMs, Mr. Zuckerberg told his friend and business partner

to check out their website, and then stated: "But they made a mistake haha. They asked me to
website,
stated: "But they made a mistake haha. They
make it for them. So I'm like delaying it so it won't be ready until after the Facebook thing
for them. So I'm like delaying it so it won't be ready until after the Facebook
14

14
See Armstrong v. Rohm & Haas Co., 349 F.Supp.2d 71, 81 (D.Mass.2004) (citing
v.
&
71,81 (D.Mass.2004)(citing
v.
Reisman v. KPMG Peat Marwick LLP, 57 Mass.App.Ct. 100, 787 N.E.2d 1060, 1066-67 (2003))
(2003»
Mass.App.Ct. 100,787 N.E.2d 1060,
plaintiff
(holding that to prove fraud, a plaintiff must "show that (1) the defendant made a false
representation of material fact, (2) with the knowledge of its falsity, (3) for the purpose of
falsity,
plaintiff
inducing the plaintiff to act in reliance thereon, (4) the plaintiff relied upon the representation,
plaintiff
(5) the plaintiff acted to his detriment.").

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Case 1:07-cv-10593-DPW Document 360

Filed 08/19/11 Page 27 of 30

Meade Decl., Ex. B at p. 4. In another leaked 1M, Mr. Zuckerberg
comes out." Meade Decl., Ex. B at p. 4. In another leaked TM, Mr. Zuckerberg reportedly states:

feel
the right
to do finish the Facebook and wait until the last day before I'm
"I feel like the right thing to do is finish the Facebook and wait until the last day before I'm
as good
supposed to have their thing ready and then be like 'look yours isn't as good as this so if you
have
thing ready and then be like 'look

want to join mine you can ... otherwise I can help you with yours later. "') More bluntly, when
mine you can...otherwise
help you with yours later."') More bluntly,
of
another friend asked him what he was going to do about the other members of the ConnectU
f"**
team, Zuckerberg allegedly wrote an instant message saying: "Yeah, I'm going to I*** them ....
message saying: "Yeah,
.
probably in the [ear]." [d. at p. 6 (bracketed information reflects correction appearing on next
Id
line of alleged TM; expletive altered).
of
1M; expletive

D.

Whether
Discovery Is Necessary To Determine Whether The Misconduct Was
Intentional And Whether The Presumption Of Substantial Interference
Arises.

Under Anderson, the burden of proving that the failure to produce evidence substantially
ability to fully and fairly
interfered with a party's ability to fully and fairly prepare for trial differs substantially depending

on whether the suppression was intentional or accidental. Without knowing whether the failure
the
was intentional or accidental. Without knowing
to produce the leaked IMs was intentional or inadvertent, this Court cannot know whether to
apply a presumption of substantial interference against the Facebook Defendants. In Anderson,
substantial interference against the Facebook Defendants.
the trial court declined to conduct an analogous inquiry into whether the defendants' failure to
analogous inquiry into
the
produce the water contamination report was intentional suppression. The First Circuit held that
was intentional suppression. The
862 F.2d at 930, and
elTed
motion to
"the judge erred in rejecting plaintiffs' motion to inquire", 862 F.2d at 930, and remanded the

action, instructing the trial court to "first conduct an evidentiary hearing and determine whether
Id.
appellee, acting alone or in concert ... knowingly or intentionally concealed the Report." [d. at
acting alone or in concert . . knowingly or intentionally
932 (internal citation omitted).

Until the Court determines whether the failure to produce IMs was intentional
detennines
suppression or inadvertent conduct, the Court will not be able to fashion appropriate relief, as

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Case 1:07-cv-10593-DPW Document 360

Filed 08/19/11 Page 28 of 30

there are a wide range of remedies available under Rule 60 and this Court's inherent powers. See
inherent
Rule 60 and
v.
2011
15,2011)
Sterski v. Kirzhnev, 2011 WL 923499 (D. Mass., March 15, 2011) (unpublished) (Court has

inherent power to impose sanctions for bad faith conduct or an attempt to perpetrate a fraud on
Moreover, until the Founders learn the
of
suppression
the court). Moreover, until the Founders learn the extent of the suppression and the contents of

all of the responsive documents withheld, they cannot know what relief to request.
of
relief

IV.
THE DISCOVERY NEEDED TO ESTABLISH WHETHER THE SUPPRESSION
IV. THE DISCOVERY NEEDED TO ESTABLISH WHETHER THE SUPPRESSION
WAS INTENTIONAL OR INADVERTENT
WAS
of
Recognizing that motions under Rule 60(b)(3) require "thoughtful consideration of all the
factors
factors involved," Damiani v. Rhode Island Hospital, 704 F.2d 12, 17 (1 stCir. 1983), and that the
704
12, 17 (Pt Cir. 1983), and
following information is necessary to identify the extent of and reasons for defendants' failure to
is necessary
the extent of and reasons for

timely produce all responsive documents, the ConnectU Founders seek an Order directing:
1.

That prior counsel of record for the Founders provide the undersigned counsel:
of

Complete, un-redacted copies of all (a) documents and other tangible things
of
produced by all parties, including all documents designated confidential, (b)
pleadings (defined in the broadest possible terms to include not only motions,
status reports, and other court filings, but also deposition notices, discovery
requests, discovery responses and other discovery documents), including those

filed under seal and/or designated confidential, (c) deposition transcripts and
exhibits, including those filed under seal and/or designated confidential, and (d)
court transcripts, sealed and unsealed;
2.
2.

That Defendants provide to the undersigned counsel all withheld electronic

communications that are responsive to any discovery requests;
3.
3.

That the documents found by Mr. Parmet and submitted to this Court for in
found by Mr. Parma and submitted
camera review be provided to the undersigned counsel, or in the alternative that

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Case 1:07-cv-10593-DPW Document 360

Filed 08/19/11 Page 29 of 30

this
review
in
to
this Court review those documents in camera to determine which should be
turned
to
Founders;
turned over to the ConnectU Founders;
4.
4.

That the Parmet protocol be suspended to the extent necessary to allow the
the Parmet
suspended to the

undersigned counsel to corraunicate directly with Jeff Parmet
his
undersigned counsel to communicate directly with Jeff Parmet regarding his
findings;
findings;
5.
5.

undersigned
That Defendants provide the undersigned counsel and the Court with a list of
persons
persons who attended all or part of the January 2006 meeting, whether in person
telephone;
or by telephone;

6.
6.

with the
That Defendants provide the Court with the following documents for in camera
inspection:
of
inspection: all documents and communications of any kind, including but not
limited to emails, that mention, refer to, or in any way relate to (a) the January
to emails,
to,

2006 meeting, or (b) unproduced documents responsive to any discovery requests;
7.
7.

That the ConnectU Founders be permitted to conduct videotaped depositions of
Max Kelly and all others involved in all forensic examinations of electronic
of
devices; and

8.
8.

That the Court schedule an evidentiary hearing following the procedure approved
in Anderson, 862 F.2d at 929, at which the Court questions the Orrick litigation
team,15 counsel for other Facebook Defendants, Mr. Zuckerberg, Mr. Kelly, Mr.
team,15
Breyer and any other knowledgeable individuals identified by the Court regarding
documents
their reported failure to timely produce all responsive documents in discovery.

15
15

Plaintiffs submit that the following current and former Orrick attorneys should be
III, 1.
evidentiary
Ordered to attend and testify at the evidentiary hearing: G. Hopkins Guy, III, I. Neel Chatterjee,
Theresa A. Sutton, Monte Cooper, Joshua H. Walker, and Robert D. Nagel.
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Case 1:07-cv-10593-DPW Document 360

Filed 08/19/11 Page 30 of 30

V.
CONCLUSION
V. CONCLUSION
decision
Under Rule 60 and the First Circuit's decision in Anderson, The Founders request that
the
or inadvertently
this Court conduct an inquiry to determine whether Facebook intentionally or inadvertently

failed to timely produce the leaked IMs. Depending on the results of the inquiry, the Founders
produce the leaked IMs. Depending on the results of the inquiry, the
mayor
may or may not seek further relief under Rule 60 or this Court's inherent power. Under
further relief under Rule 60 or this Court's inherent power.
Anderson, any request for a remedy is premature.

Dated: August 19, 2011
Dated: August 19,2011

Respectfully submitted,
CAMERON WINKLEVOSS, TYLER WINKLEVOSS and
DIVYA
DIVYA NARENDRA,
By their attorneys,
attomeys,
lsi Tyler Meade
/s/ Tyler
Tyler Meade, Cal, State Bar No. 160838 (Pro Hac Vice)
Cal.
[e-mail]
[e-mail]
185832
Vice)
Michael Schrag, Cal. State Bar No. 185832 (Pro Hac Vice)
[e-mail]
[e-mail]
MEADE & SCHRAG, LLP
&
1816 Fifth Street
Berkeley, CA 94710
Berkeley, CA 94710
[phone]
[phone] (fax)

7.l(a)(2)
CERTIFICATION PURSUANT TO LOCAL RULE 7.1(a)(2)
I, Tyler Meade, hereby certify that counsel for the Founders, the Facebook Defendants,
and ConnectU have conferred and have attempted in good faith to resolve or narrow the issue
presented herein.
lsi Tyler Meade
/s/
Tyler Meade

CERTIFICATE OF SERVICE
I, Tyler Meade, hereby certify that this document filed through the ECF system will be
Meade,
document filed
electronically
participants
identified
of Electronic
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 nonregistered participants on or before
and
copies
sent to those indicated as nonregistered pmiicipants
August 19, 2011.
19,2011.

/s/
Meade
lsi Tyler Meade
Tyler Meade
24- 24 -