Facebook, Inc. v. Studivz, Ltd et al

Filing 52

Declaration of Stephen S. Smith in Support of 51 MOTION for Protective Order (1) Staying Discovery Not Related to Disputed Material Issues Raised in Defendants' Motions to Dismiss for Lack of Personal Jurisdiction and Forum Non Conveniens and (2) Preventing Discovery Produced in This Action MOTION for Protective Order (1) Staying Discovery Not Related to Disputed Material Issues Raised in Defendants' Motions to Dismiss for Lack of Personal Jurisdiction and Forum Non Conveniens and (2) Preventing Discovery Produced in This Action MOTION for Protective Order (1) Staying Discovery Not Related to Disputed Material Issues Raised in Defendants' Motions to Dismiss for Lack of Personal Jurisdiction and Forum Non Conveniens and (2) Preventing Discovery Produced in This Action filed byStudivz, Ltd, Holtzbrinck Networks GmbH, Holtzbrinck Ventures GmbH. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Related document(s) 51 ) (Walker, William) (Filed on 10/31/2008)

Facebook, Inc. v. Studivz, Ltd et al

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STEPHEN S. SMITH (SBN 166539) [e-mail] WILLIAM M. WALKER (SBN 145559) [e-mail] AARON J. MOSS (SBN 190625) [e-mail] GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Telephone: [phone] Fax: [phone] Attorneys for Defendants studiVZ Ltd., Holtzbrinck Networks GmbH, and Holtzbrinck Ventures GmbH 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 Assigned To: Hon. Jeremy Fogel DECLARATION OF STEPHEN S. SMITH IN SUPPORT OF MOTION OF DEFENDANTS FOR PROTECTIVE ORDER (1) STAYING DISCOVERY NOT RELATED TO DISPUTED MATERIAL ISSUES RAISED IN DEFENDANTS' MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS AND (2) PREVENTING DISCOVERY PRODUCED IN THIS ACTION FROM BEING USED IN FOREIGN COURTS [Notice of Motion and Memorandum of Points and Authorities; and (Proposed) Order Filed Concurrently] Date: Time: Dept./Place: December 9, 2008 10:00 a.m. Courtroom 2, 5th Floor Hon. Howard R. Lloyd

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DECLARATION OF STEPHEN S. SMITH IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

Dockets.Justia.com

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DECLARATION OF STEPHEN S. SMITH I, Stephen S. Smith declare: 1. I am an attorney at law duly licensed to practice in the State of

California and before the United States District Court for the Northern District of California, and am a partner at Greenberg Glusker Fields Claman & Machtinger LLP, counsel of record for Defendants StudiVZ Ltd., Holtzbrinck Networks GmbH, and Holtzbrinck Ventures GmbH ("Defendants"). I have personal knowledge of the facts set forth herein and, if called as a witness, could and would testify competently thereto under oath. 2. Attached hereto as Exhibit "A" are true and correct copies of the

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discovery requests Facebook propounded on Defendants on October 14, 2008 and October 15, 2008. Defendants filed motions to dismiss on October 22, 2008. 3. On October 27, 2008, I spoke by telephone with Warrington Parker,

counsel for Facebook. During that call he asked me whether Defendants objected to Facebook being able to use discovery in this action in the German Action. I said that Defendants do so object. Mr. Parker informed me that Facebook intends to use the discovery from this action in the German Action. 4. Attached hereto as Exhibit "B" is a true and correct copy of a letter

dated October 28, 2008 from Mr. Parker. The first numbered paragraph of that letter addresses Facebook's intent to use discovery obtained in this action in "any litigation, here or around the world."

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DECLARATION OF STEPHEN S. SMITH IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

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5.

Also, Facebook's counsel has drafted a proposed protective order, a

true and correct copy of which is attached hereto as Exhibit "C." Such order allows Facebook to use discovery obtained in this action in "any dispute between the parties." 6. On October 9, 2008, during the Rule 26(f) conference between counsel

for the parties, I asked Facebook's counsel, Warrington Parker, to stipulate to a stay of any discovery that does not relate to the material issues in dispute in the Motions to Dismiss. Mr. Parker rejected my request. After the Motions to Dismiss were filed, and Facebook's counsel had been given the opportunity to see the issues raised therein, I again asked Mr. Parker on October 27, 2008 whether Facebook would agree to stay discovery that was unrelated to the issues raised in the Motions to Dismiss or whether Facebook continued to insist on unlimited discovery. Mr. Parker again refused to agree to the requested stay. In the Joint Rule 26(f) Report and the Case Management Conference Statement, which are to be filed on October 31, 2008, Facebook continues to take the position that there should be no stay of merit-based discovery. 7. I have had repeated oral and written communications with Mr. Parker

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about the potential for discovery into the personal jurisdiction and forum issues raised by the Motions to Dismiss. On September 18, 2008, I sent Mr. Parker a letter suggesting that we meet and confer within five days after the Motions to Dismiss were filed to discuss that very issue. I explained in that letter, and in a number of oral conversations since then, that the scope of such discovery would need to be directed to the material issues raised in the Motions to Dismiss that were in dispute. Initially, Mr. Parker and I agreed to hold the proposed meet and confer discussion on October 24, 2008, two days after the Motions to Dismiss were filed. Mr. Parker then requested that we move that meet and confer to October 27, 2008.
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DECLARATION OF STEPHEN S. SMITH IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

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On October 27, 2008, Mr. Parker and I spoke on the telephone. During that call I and my partner, Aaron Moss, asked Mr. Parker what issues from the Motions to Dismiss were in dispute. Mr. Parker refused to answer that question. We also asked Mr. Parker for the factual basis upon which Facebook was asserting that the Court could exercise personal jurisdiction over the defendants. Again, Mr. Parker refused to say. I then explained again that Defendants were willing to engage in discovery directed at any material issues raised by the Motions to Dismiss that were in dispute, but that Defendants could not and would not simply agree to wideranging discovery into any and all possible issues without knowing the basis upon which Facebook claimed personal jurisdiction. The call ended without resolution of the issue. I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct, and that this declaration was executed in Los Angeles, California on October 31, 2008. /s Stephen S. Smith Stephen S. Smith .

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DECLARATION OF STEPHEN S. SMITH IN SUPPORT OF MOTION FOR PROTECTIVE ORDER