Facebook, Inc. v. Studivz, Ltd et al

Filing 171

Declaration in Support of 170 MOTION to Continue July 10, 2009 Hearing on Defendants' Motions to Dismiss filed byFacebook, Inc.. (Attachments: # 1 Exhibit A)(Related document(s) 170 ) (Avalos, Julio) (Filed on 6/3/2009)

EXHIBIT A

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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: [phone] Fax: [phone] E-mail: [e-mail] E-mail: [e-mail] 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: [phone] Fax: [phone] E-mail: [e-mail] CASE NO. 5:08-CV-03468 JF

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compliment Ms. Hurst. THE COURT: MR. SMITH: Oh, go ahead. Ms. Hurst and I had very good

discussions about the meet and confer, and that's why the last time we were here we represented to Your Honor we had come to agreement on virtually every issue. The problems with these particular requests, these particular requests were not written with Calder v. Jones or the issues in the case really in mind. THE COURT: It often happens that in deciding

discovery disputes, I in effect re-write the requests so that they say what I think is fair or appropriate as opposed to what they literally say. What I'm struggling with right now is to decide whether to give him anything or nothing. I'm

not inclined to give him nothing, I'm inclined to give him something, and I'm struggling to define a something in a way that's reasonable. MR. SMITH: I understand. My proposal is

that he -- that access is okay if it is for the purpose of copying the design, look, feel, whatever other word we want to use, of Facebook's own website, and as long as it is limited to a fair group of people and a fair amount of time, meaning a particular period of time. If we go beyond that, we start getting into
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these line drawing problems that Your Honor has already noted, and we're producing documents about -THE COURT: Well, can you identify the core

group of people that did the original development and design, whether they are there or not now? MR. SMITH: I can't off the top of my head, I think Dennis

but that can be identified, yes.

Bemmann is probably one, and I think Hasan Darajani [phonetic] is another, and then after that I would have to speak to my client. THE COURT: Well, would it be fair to say,

Mr. Gray, that you are interest in access is really cabined by those accessors who were involved in the design and development of the websites of defendants? MR. GRAY: THE COURT: That's correct, Your Honor. So, an order which limited it to

that group of people would be okay? MR. GRAY: And that's what we want, the

design and development team, creation team. A couple of points, Your Honor. StudiVZ is

barely three years old, so this burden that we keep hearing about, all these scores of people, you know, is overstated for sure. THE COURT: they're talking about.
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It depends what period of time They may have scores today.

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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,
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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
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Honor? THE COURT: MR. SMITH:
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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.
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