Facebook, Inc. v. John Does 1-10

Filing 43

JOINT CASE MANAGEMENT CONFERENCE STATEMENT filed by Brian Fabian, Josh Raskin, Ming Wu, Istra Holdings, Inc., Slickcash.com, 1564476 Ontario Limited. (Iskander, Gregory) (Filed on 2/26/2008) Text modified on 2/27/2008 conforming to posted document caption (bw, COURT STAFF).

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Facebook, Inc. v. John Does 1-10 Doc. 43 1 Paul S. Rosenlund (SBN 87660) Gregory G. Iskander (SBN 200215) 2 DUANE MORRIS LLP One Market, Spear Tower 3 San Francisco, CA 94105-1104 Telephone: 415-957-3000 4 Facsimile: 415-957-3001 psrosenlund@duanemorris.com 5 ggiskander@duanemorris.com 6 Attorneys for Defendants 7 Brian Fabian, Josh Raskin, Ming Wu, Istra Holdings Inc., 1564476 Ontario Limited, and Slickcash.com 8 9 10 11 12 13 FACEBOOK, INC., 14 15 16 17 BRIAN FABIAN, JOSH RASKIN, MING WU, and JOHN DOES 4-10, individuals; and ISTRA 18 HOLDINGS INC., SLICKCASH.COM, 1564476 ONTARIO LIMITED, and JOHN DOES 14-20, 19 corporations, 20 21 22 23 24 25 26 27 28 ________________________________________________________________________________________ UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C-07-03404 HRL JOINT CASE MANAGEMENT CONFERENCE STATEMENT Plaintiff, v. Date: Time: Ctrm: Judge: March 4, 2008 1:30 p.m. 2, 5th Fl. Magistrate Judge Howard R. Lloyd Defendants. First Amended Complaint Filed: December 12, 2007 JOINT CASE MANAGEMENT CONFERENCE STATEMENT; Case No. C-07-03404 HRL Dockets.Justia.com 1 Plaintiff FaceBook, Inc. and Defendants Brian Fabian, Ming Wu, Josh Raskin, Istra Holdings 2 Inc., 1564476 Ontario Limited, and Slickcash.com (collectively "Defendants"), jointly submit this 3 Case Management Conference Statement. 4 5 A. Jurisdiction and Service Plaintiff submits that jurisdiction is proper in this Court, under 28 U.S.C. 1331, because the 6 action alleges violations of the Computer Fraud and Abuse Act, 18 U.S.C. 1030, and that venue is 7 proper under 28 U.S.C. 1391(b)(2) and (d), or in the alternative 1391(b)(1) or (3). 8 Defendants believe that there may be a lack of both subject matter jurisdiction and/or 9 personal jurisdiction and do not concede jurisdiction. Defendants reserved the right to challenge 10 jurisdiction in their Answer and will promptly do so upon completion of initial discovery and 11 investigation. 12 All defendants have been served (in December 2007 and January 2008) and answered the 13 Complaint on February 1, 2008. 14 15 B. Factual Background Plaintiff alleges that sometime between or before June 1, 2007 and June 15, 2007, the 16 Defendants, acting individually and in concert, used a remote server to access Facebook's Web site 17 hundreds of thousands of times, and using an unauthorized automated script designed to circumvent 18 Facebook's normal security defenses, directed Facebook's computers to verify and obtain 19 information about Facebook's users, and to profit from that information. The Defendants continued 20 to adapt their approach to accessing Facebook's Web site in the manner described above despite the 21 efforts of Facebook's security staff to block the Defendants' actions. 22 Defendants are Canadian residents and entities who deny generally the allegations of 23 improper conduct alleged by Plaintiff. 24 25 C. Legal Issues Whether Defendants' conduct violated the Computer Fraud and Abuse Act; the California 26 Comprehensive Computer Data Access and Fraud Act; or FaceBook's Terms and Conditions. 27 28 /// 1 ________________________________________________________________________________________ Whether Defendants intentionally accessed FaceBook's Web site without authorization. JOINT CASE MANAGEMENT CONFERENCE STATEMENT; Case No. C-07-03404 HRL 1 Whether Defendants' conduct caused damage in excess of the statutory minimum or any 2 damages at all as defined by the relevant statutes. 3 The content of FaceBook's terms and conditions and whether FaceBook's terms and 4 conditions are valid and enforceable. 5 6 7 Whether Defendants are subject to the personal jurisdiction of this Court. D. Motions The Defendants intend to evaluate whether the Court has personal jurisdiction over these 8 defendants, and may potentially move to dismiss for lack of personal jurisdiction. Further, 9 Defendants may move to compel arbitration pursuant to the terms of the contract upon which 10 Plaintiff sues. 11 12 13 14 15 Other motions are uncertain at this time. E. Amendment of Pleadings No amendments to the pleadings are presently contemplated. F. Evidence Preservation Plaintiffs, Defendants, and third party Accretive Technology Group have been advised by 16 their counsel to preserve all relevant evidence, including electronically stored evidence, if any. The 17 parties have agreed to postpone detailed discussion of discovery-related issues, including electronic 18 discovery, pending the results of their ongoing settlement discussions. See section G, below. 19 20 G. Disclosures The parties have not yet made their initial disclosures. The parties are in extensive 21 negotiations for settlement of this matter and thus desire to refrain from the expense and burden of 22 initial disclosures and discovery at this time. The parties agree that if no agreement is reached, the 23 parties shall make initial disclosures pursuant to Rule 26 on or before April 4, 2008. 24 25 H. Discovery The parties see no reason to deviate from the Federal Rules of Civil Procedure with respect to 26 discovery. See also section G, supra. 27 28 I. None. 2 ________________________________________________________________________________________ Related Cases JOINT CASE MANAGEMENT CONFERENCE STATEMENT; Case No. C-07-03404 HRL 1 2 J. Relief Injunctive and monetary relief is sought in the Complaint. Plaintiff's investigation regarding 3 monetary damages is ongoing, and the amount of such damages will be proven at trial. 4 Defendants do not believe that Plaintiff is entitled to relief and require additional discovery 5 and investigation to determine the scope of damages, if any. 6 7 K. Settlement and ADR The parties are in extensive negotiations to settle this matter, including potential cooperation 8 from the Defendants with Plaintiff's investigation of this matter. Therefore the parties desire to 9 continue the deadline for the required ADR flings until April 25, 2008. 10 11 12 13 14 15 L. Consent to Magistrate Judge For All Purposes The Parties consent to the Magistrate Judge for all purposes. M. Other References Not applicable. N. Narrowing of Issues At this time, it is too early to evaluate and determine all the issues and/or any narrowing of 16 the issues. 17 18 O. Expedited Schedule The parties do not believe that the Court should impose an expedited schedule for this action. 19 Defendants were served in December 2007 and January 2008, and have only responded to the First 20 Amended Complaint on February 1, 2008. No discovery has taken place and the parties are in 21 extended negotiations. 22 23 P. Scheduling In the event that the parties are unable to reach settlement, the parties recommend that the 24 Court set the following schedule: 25 26 27 28 Fact Discovery Cut-Off: June 27, 2008 Expert Reports: August 1, 2008 Expert Rebuttal Reports: August 29, 2008 Expert Discovery Cut-off: September 26, 2008 3 ________________________________________________________________________________________ JOINT CASE MANAGEMENT CONFERENCE STATEMENT; Case No. C-07-03404 HRL 1 2 3 4 5 6 7 Last day for hearings on dispositive motions: November 25, 2008 Pre-Trial Conference: December 22, 2008 Trial: January 12, 2009 Q. Trial The parties have each requested a Jury Trial. The expected length of trial is 5-7 days. R. Disclosures of Non-Party Interested Entities or Persons Defendants have filed a "Certificate of Interested Entities or Persons," pursuant to Civil L.R. 8 3-16, stating that other than the named parties, there is no such interest to report. 9 10 11 12 13 14 15 Dated: February 26, 2008 16 17 18 19 20 21 22 23 24 25 26 27 28 4 ________________________________________________________________________________________ DM1\1294592.2 S. Other Matters None at the present time. Dated: February 26, 2008 DUANE MORRIS LLP By:__/s/ Gregory G. Iskander______ Gregory G. Iskander Attorneys for Defendants PERKINS COIE LLP By:__/s/ David Chiappetta______ David Chiappetta Attorneys for Plaintiff JOINT CASE MANAGEMENT CONFERENCE STATEMENT; Case No. C-07-03404 HRL

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