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)

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EXHIBIT B 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION _______________________________________________________ FACEBOOK, INC., Plaintiff, v. STUDIVZ LTD., HOLTZBRINK NETWORKS GMBH, HOLTZBRINK VENTURES GMBH and DOES 1-25, Defendants. _______________________________________________________ The above-styled cause came on for hearing on March 3, 2009 at 10:09 a.m. before The Honorable Howard R. Lloyd, United States Magistrate Judge, Courtroom 2, Fifth Floor. APPEARANCES: ON BEHALF OF PLAINTIFF: Julio C. Avalos, Esq. Thomas J. Gray, Esq. ORRICK, HERRINGTON & SUTCLIFFE, LLP 1000 Marsh Road Menlo Park, CA 94043 Phone: 650.614.7400 Fax: 650.614.7401 E-mail: javalos@orrick.com E-mail: tgray@orrick.com ON BEHALF OF DEFENDANTS: Stephen S. Smith, Esq. GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER, LLP 1900 Avenue of the Stars, 21st Floor Los Angeles, CA 90067 Phone: 310.553.3610 Fax: 310.553.0687 E-mail: ssmith@greenbergglusker.com CASE NO. 5:08-CV-03468 JF Facebook, Inc. v. Studivz Ltd., et al. 3/3/2009 34 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 whether or not Holtzbrink had knowledge of Facebook's allegations at the time it purchased StudiVZ. been answered. Those are the three just off the top of my head that I can think of. The idea that we have not been cooperative here and produced stuff is just not true. The reason That has we're having this problem is because of what he is requesting. THE COURT: Well, I'm agreeing with you. I think the requests are too broad, but I'm dealing with the reality that I think they should get something. MR. SMITH: And I'm quite willing to work with Your Honor to get them something. THE COURT: All right, well what I -- I don't think further discussion about this would be particularly profitable. What I will do is I will give you both until 9:00 o'clock tomorrow morning to submit a letter to the court and specifically what I'm interested in is your proposal for what an order would say in terms of further discovery, if any, and I've already indicated I'm inclined to give some on the issues we've been discussing: access to the websites, the design and development of the websites, the adhesion contracts, West Court Reporting Services 800.548.3668 Ext. 1 Facebook, Inc. v. Studivz Ltd., et al. 3/3/2009 35 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 that. THE COURT: If those depositions ever do take notice. MR. SMITH: So I don't -- we're not here on and depositions, which we haven't talked about, but would still deal with this questions of what's the deponent going to be questioned about. And on that subject, I understand the defendant to offer witnesses who are knowledgeable about jurisdiction and forum selection subjects, but then we would get into the issue of what subjects are relevant to jurisdiction and forum selection, and we're back having the same argument that we've just had now with respect to the paper discovery requests. MR. SMITH: Can I make a point about depositions, Your Honor? THE COURT: MR. SMITH: Sure. I'm not sure what motion we're on. They notice of motion and their proposed order don't say anything about depositions. I don't know, and their statement in their reply that they're seeking to compel Rule 30(b)(6) depositions, there aren't any Rule 30(b)(6) deposition notices even pending. THE COURT: That's true, they withdrew the place, the order would guide what would be in the scope West Court Reporting Services 800.548.3668 Ext. 1 Facebook, Inc. v. Studivz Ltd., et al. 3/3/2009 43 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 Honor? THE COURT: MR. SMITH: West Court Reporting Services MR. SMITH: MR. GRAY: Okay. I certainly have more to say on I disagree with how That one the sanctions issue, Your Honor. the events unfolded with all due respect. issue was privilege, and the only issue is the depositions on Tuesday. THE COURT: And I would suggest to you when you write this letter to me that you -- that you have in mind that what you're proposing to me is something that you could live with, not what you would rather have, not your druthers. Your druthers, Mr. Smith, would be nothing, and your druthers, Mr. Gray, would be everything. So I'm interested in not your druthers, but in what you could live with. And I'm not committing to accept either of your language, but I would like some guidance and some further -- I'm going to give this some further thought, too. MR. GRAY: THE COURT: MR. GRAY: MR. SMITH: Do you want page limits on that? Yes, two pages, thank you. Two pages, okay. May I make one request, Your Sure. I know you said 9:00 a.m. 800.548.3668 Ext. 1 Facebook, Inc. v. Studivz Ltd., et al. 3/3/2009 44 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 West Court Reporting Services 800.548.3668 Ext. 1 tomorrow, but because my client is in Germany and some of this does relate to, for example, the corporate people, -THE COURT: MR. SMITH: THE COURT: day. MR. SMITH: Thank you. Sure, do you want more time? Could we have one more day? Sure, 9:00 a.m. the following (Hearing adjourned 10:54 a.m.) Facebook, Inc. v. Studivz Ltd., et al. 3/3/2009 45 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 __________________________________________ Christopher Boone, AAERT Certified Electronic Court Reporter West Court Reporting Services 800.548.3668 Ext. 1 STATE OF COLORADO ) ) ss. CERTIFICATE COUNTY OF DENVER ) I, Christopher Boone, Certified Electronic Court Reporter and Notary Public within and for the State of Colorado, certify that the foregoing is a correct transcription from the digital recording of the proceedings in the above-entitled matter. I further certify that I am neither counsel for, related to, nor employed by any of the parties to the action in which this hearing was taken, and further that I am not financially or otherwise interested in the outcome of the action. In witness whereof, I have affixed my signature and seal this 17th day of March, 2009. My commission expires August 16, 2010.

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