Facebook, Inc. v. Studivz, Ltd et al

Filing 123

Declaration of Julio C. Avalos in Support of 122 MOTION to Stay Facebook's L.R. 6-3 Motion to Stay Hearing filed byFacebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 122 ) (Avalos, Julio) (Filed on 3/20/2009)

Facebook, Inc. v. Studivz, Ltd et al

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I. NEEL CHATTERJEE (State Bar No. 173985) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) javalo [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] m ORRICK, HERRINGTON & SUTCLIFFE LLP 4 Park Plaza Suite 1600 Irvine, CA 92614-2558 Telephone: [phone] Facsimile: 949-567 6710 Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., Plaintiff, v. STUDIVZ LTD., HOLTZBRINCK NETWORKS GmbH, HOLTZBRINCK VENTURES GmbH AND DOES 1-25, Defendants.

Case No. 5:08-cv-03468 JF DECLARATION OF JULIO C. AVALOS IN SUPPORT OF FACEBOOK INC'S L.R. 6-3 MOTION TO STAY HEARING Date: Time: Room: Judge: April 10, 2009 9:00 A.M. 3, 5th Floor Honorable Jeremy Fogel

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DECLARATION OF JULIO C. AVALOS No. 5:08-CV-03468 JF

Dockets.Justia.com

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I, Julio C. Avalos, declare as follows: 1. I am an attorney with the law firm of Orrick, Herrington & Sutcliffe LLP, counsel

for Plaintiff Facebook, Inc. I make this Declaration in support of Facebook's Motion to Stay Hearing Pursuant to Northern District of California Civil Local Rule 6-3. I am an active member in good standing of the California State Bar. Except as set forth herein, I have personal knowledge of the facts stated herein and if called as a witness, could and would competently testify thereto. 2. On December 16, 2008, I, along with my colleague Annette Hurst, attended the

hearing on Defendants' Motion for Protective Order before Judge Lloyd. A true and correct copy of the relevant portion of that hearing transcript is attached hereto as Exhibit A. 3. On March 3, 2009, I, along with my colleague Thomas Gray, attended the hearing

on Facebook's Motion to Compel Discovery before Magistrate Judge Lloyd. 4. At the hearing, Magistrate Judge Lloyd indicated that he was inclined to grant

Facebook at least some of the discovery it sought. Magistrate Judge Lloyd instructed the parties to submit, within twenty-four hours, letters to the Court containing proposed language for his order granting (at least in part) Facebook's motion. Defense counsel requested an additional twenty-four hours to speak to his clients in Germany. Judge Lloyd granted this request. Judge Lloyd cautioned the parties to draft proposed language in the spirit of compromise, not each side's respective "druthers." Facebook was instructed to assume that it was entitled to something, but not everything that it sought. Defendants were likewise instructed to assume that Facebook was entitled to something more than the nothing which Defendants were proposing. A true and correct portion of the March 3, 2009 hearing transcript containing excerpts relevant to Facebook's Motion is attached hereto as Exhibit B. 5. Two days later, on March 5, 2009, Facebook delivered to Magistrate Judge Lloyd

a letter containing its proposed language. A true and correct copy of this letter is attached hereto as Exhibit C. 6. Defense counsel, Stephen S. Smith, did not submit proposed language. Instead,

Mr. Smith asked for an additional week to do so, during which he and/or general counsel for
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DECLARATION OF JULIO C. AVALOS No. 5:08-CV-03468 JF

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Defendants would have "the opportunity to contact and discuss the issue with the relevant board members." A true and correct copy of this letter is attached hereto as Exhibit D. 7. On March 6, 2009, Magistrate Judge Lloyd granted Defendants' request for an

additional week "to submit its letter." This Interim Order appears as Document No. 112 on the docket. 8. On March 12, 2009, Defendants submitted a letter that did not contain the

proposed language requested by Magistrate Judge Lloyd. Instead, Mr. Smith wrote: "StudiVZ has major concerns with any order granting, even in part, Facebook's motion to compel." The letter went on to request that Facebook's "motion be held in abeyance." A true and correct copy of this letter is attached hereto as Exhibit E. 9. On March 12, 2009, Magistrate Judge Lloyd entered a Second Interim Order Re

Plaintiff's Motion to Compel. The Interim Order reads: "Rather than submit the requested proposal for the specific limits of jurisdictional discovery, defendants in their March 12, 2009 letter ask this court to stay any decisio n on compelling jurisdictional discovery until they seek certain relief from the presiding judge. In view of the position taken by defendants in their March 12, 2009 letter, this court finds that plaintiff should be given an opportunity to respond." 10. Accordingly, on March 16, 2009, Facebook submitted a letter objecting to

Defendants' failure to abide by Magistrate Judge Lloyd's order requesting the submittal of proposed language. A true and correct copy of this letter is attached hereto as Exhibit F. 11. As of the date of this declaration, Magistrate Judge Lloyd has yet to issue an order

on Facebook's motion to compel discovery. I declare, under penalty of perjury, that the foregoing is true and correct to the best of my knowledge. Executed this 20th day of January, at Menlo Park, California.

/s/ Julio C. Avalos /s/ JULIO C. AVALOS

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DECLARATION OF JULIO C. AVALOS No. 5:08-CV-03468 JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: March 20, 2009

CERTIFICATE OF SERVICE I hereby certify that this document(s) filed through the ECF system will be 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 non registered participants on March 20, 2009. Respect fully submitted, /s/ Julio C. Avalos /s/ Julio C. Avalos

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DECLARATION OF JULIO C. AVALOS No. 5:08-CV-03468 JF