Facebook, Inc. v. John Does 1-10

Filing 7

Facebook, Inc. v. John Does 1-10

Doc. 7

Case 5:07-cv-03404-HRL

Document 7

Filed 07/03/2007

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Lisa D. Olle, Bar No. 228551 [e-mail] PERKINS COIE LLP Four Embarcadero Center, Suite 2400 San Francisco, CA 94111-4131 Telephone: [phone] Facsimile: 415.344.7050 Attorneys for Plaintiff FACEBOOK, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., a Delaware corporation, Plaintiff, v. JOHN DOES 1-10, individuals; and JOHN DOES 11-20, corporations, Defendants.

Case No. C-07-03404 HRL EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING ON FACEBOOK, INC.'S MOTION FOR LEAVE TO TAKE DISCOVERY ON ACCRETIVE TECHNOLOGY GROUP, INC. AND FCI, INC. Date: Time: Dept.: Before: August 14, 2007 10:00 a.m. 2, 5th Floor Honorable Howard R. Lloyd

Plaintiff Facebook, Inc. ("Facebook") hereby moves this Court, pursuant to Local Rule 6-3 of the California Rules of Court for an Order Shortening Time for Hearing on Facebook's Ex Parte Application For Order Shortening Time For Hearing On Facebook, Inc.'s Motion For Leave To Take Discovery On Accretive Technology Group, Inc. and FCI, Inc. ("Motion"). Facebook requests that the Court hear its Motion as soon as the Court's calendar permits. This Application is made on the grounds that hearing the Motion on a regular briefing schedule will cause Facebook substantial harm since the electronic data sought in Facebook's Motion can

EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING ON FACEBOOK, INC.'S MOTION FOR LEAVE TO TAKE DISCOVERY ON ACCRETIVE TECHNOLOGY GROUP, INC. AND FCI, INC.

CASE NO. C-07-03404

Dockets.Justia.com

Case 5:07-cv-03404-HRL

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be easily destroyed or deleted and this data is central to the claims alleged in Facebook's complaint. See Declaration of Lisa D. Olle ("Olle Decl.") ¶ 3. Time is of the essence in this case since the identities of the John Doe defendants are likely in the possession of third-parties, Accretive Technology Group, Inc. ("Accretive") and FCI, Inc. ("FCI"). Id. To date, both Accretive and FCI have refused to voluntarily provide Facebook with the information necessary for Facebook to learn the identities of the person(s) or entities associated with IP Address 216.127.50.20 despite the fact that this IP Address is responsible for all 200,000 requests targeting Facebook's proprietary computer system and is assigned to Accretive. Olle Decl. ¶ 4. This Application is based upon the attached Memorandum of Points and Authorities and the Declaration of Lisa D. Olle in Support of Facebook, Inc.'s Ex Parte Application for Order Shortening Time for Hearing on Facebook, Inc.'s Motion for Leave to Take Discovery on Accretive Technology Group and FCI, Inc ("Olle Decl.") filed concurrently herewith, the complete files and records in this action, and any oral argument with regard to this Application. Facebook therefore respectfully requests that this Court grant its Application for an Order Shortening Time for Hearing on its Ex Parte Motion for Leave to Take Discovery on Accretive Technology Group and FCI, Inc. MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND FACTS On June 28, 2007, Facebook filed a complaint against John Does 1-10, individual and John Does 1-10, corporations ("Complaint"). In its Complaint, Facebook alleges that the John Doe defendants violated the Computer Fraud and Abuse Act, 18. U.S.C. § 1030 and the California Comprehensive Data Access and Fraud Act, Cal. Penal Code § 502(c) when they unlawfully accessed Facebook's proprietary computer system located at: http://www.facebook.com more than 200,000 times from a single IP address. Facebook, relying on publicly available information, researched the identity of this IP address and learned that IP Address 216.127.50.20 is associated with Accretive. Upon learning this information, Facebook requested that Accretive and FCI preserve and produce to it all -2EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING ON FACEBOOK, INC.'S MOTION FOR LEAVE TO TAKE DISCOVERY ON ACCRETIVE TECHNOLOGY GROUP, INC. AND FCI, INC. CASE NO. C-07-03404

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evidence related to the use of the offending IP address' unauthorized attempts to access Facebook. See Preservation Letters sent to Accretive and FCI on June 15, 2007, Olle Decl., ¶¶ 8, 9, Exhibits A and B. To date, Accretive and FCI have refused to voluntarily provide this evidence to Facebook. Olle Decl. ¶ 4. II. ARGUMENT Facebook will suffer substantial hardship if this Court hears its Motion on a normal briefing schedule. Facebook has been and continues to be harmed by these unlawful attempts to access Facebook's proprietary computer system. Time is of critical importance given the fact that the information and data revealing the identity of the person or entity behind these unlawful attempts is in Accretive's possession and could easily be deleted, overwritten, or otherwise destroyed. Furthermore, apart from the information on Accretive's server, Facebook does not have any other reasonable means to learn the identity of the persons controlling IP Address 216.127.50.20 during the period in which this IP address accessed Facebook's computer system without authorization. Olle Decl. ¶ 6. Without the evidence that is in Accretive's possession, Facebook would not be able to pursue this lawsuit against the defendants that are responsible for unlawfully attempting to access Facebook's computer system in direct violation of the laws that were specifically enacted to protect companies such as Facebook. The reasoning behind Facebook's Motion is sound, but delaying a decision on the Motion would significantly prejudice Facebook since it would allow over five weeks to lapse without acting to preserve fragile electronic evidence, which is integral to Facebook's case. If the Motion were heard on a regular noting schedule, relevant evidence might likely be destroyed and Facebook would have no means to reverse the severe prejudice that it would inevitably suffer. Further, no party will be prejudiced by the Court's immediate consideration of Facebook's Ex Parte Motion for Leave to Take Discovery on Accretive Technology Group, Inc. and FCI, Inc., because there will be no response to the Motion. The identity of the John Doe defendants is currently unknown and is the subject of the Motion. Olle Decl. ¶ 7.

-3EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING ON FACEBOOK, INC.'S MOTION FOR LEAVE TO TAKE DISCOVERY ON ACCRETIVE TECHNOLOGY GROUP, INC. AND FCI, INC. CASE NO. C-07-03404

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III.

CONCLUSION For the foregoing reasons, the Court should grant Facebook's Ex Parte Application for

Order Shortening Time for Hearing on Facebook's Motion for Leave to Take Discovery on Accretive Technology Group, Inc. and FCI Inc.

Dated: July 3, 2007

PERKINS COIE LLP By: Lisa D. Olle Attorneys for Plaintiff FACEBOOK, INC. /s/

91004-1100/LEGAL13371669.1

-4EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING ON FACEBOOK, INC.'S MOTION FOR LEAVE TO TAKE DISCOVERY ON ACCRETIVE TECHNOLOGY GROUP, INC. AND FCI, INC. CASE NO. C-07-03404