Facebook, Inc. v. Studivz, Ltd et al

Filing 65

Declaration of Dr. Anton G. Maurer in Support of 63 Reply Memorandum,,,, filed byStudivz, Ltd, Holtzbrinck Networks GmbH, Holtzbrinck Ventures GmbH. (Attachments: # 1 Appendix Exhibit O, part 1 of 3, # 2 Exhibit Exhibit O, part 2 of 3, # 3 Exhibit Exhibit O, part 3 of 3)(Related document(s) 63 ) (Walker, William) (Filed on 12/2/2008)

Facebook, Inc. v. Studivz, Ltd et al

Doc. 6

1 2 3 4 5 6 7 8 9
GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

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 DR. ANTON G. MAURER IN SUPPORT OF DEFENDANTS' MOTION FOR PROTECTIVE ORDER; EXHIBIT O [Reply Memorandum of Points and Authorities; Supple mental Declaration of Stephen S. Smith (with Exhibits D-N); and Evidentiary Objections Filed Concurrently] Date: Time: Dept./Place: December 9, 2008 10:00 a.m. Courtroom 2, 5th Floor Hon. Howard R. Lloyd

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
37106-00002/1666123.3

1900Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

DECLARATION OF DR. ANTON G. MAURER IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

Dockets.Justia.com

1 2 3 4 5 6 7 8 9
GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

DECLARATION OF DR. ANTON G. MAURER I, Dr. Anton G. Maurer, declare: 1. I am an attorney at law duly licensed to practice law in Germany, and I

am in good standing with my local bar, which is the bar of Stuttgart, Germany. I am a partner with CMS Hasche Sigle, the largest German law firm, and my office is located at Schoettlestrasse 8, 70597 Stuttgart, Germany. I am counsel of record for StudiVZ Ltd. in the action pending as case no. 17 O 423/08 in the Landgericht Stuttgart (district court Stuttgart) in Stuttgart, Germany that was brought by StudiVZ Ltd. against Facebook, Inc. (the "German Action"). I have been practicing law since 1982 and have represented German and foreign clients in corporate and commercial disputes, among others, in the Landgericht Stuttgart and Oberlandesgericht Stuttgart (Stuttgart court of appeal). From April 1984 through March 1985, I worked as a foreign lawyer with the law firm of Johnson & Swanson in Dallas, Texas. On May 17, 2009, I will graduate with an LL.M. in U.S. and Global Business Law from Suffolk University, located in Boston, Massachusetts. I make this declaration in support of the Reply Memorandum of Points and Authorities in support of the Motion for Protective Order brought by Defendants StudiVZ Ltd., Holtzbrinck Networks GmbH, and Holtzbrinck Ventures GmbH ("Defendants"). I am fluent in both German and English. 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. On November 18, 2008, Facebook, Inc. ("Facebook") filed an

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1900Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

Opposition to Defendants' Motion for Protective Order. In support thereof, Facebook presented a Declaration from Dr. Katharina Scheja dated November 17, 2008. In its brief, Facebook mischaracterized the Declaration of Dr. Katharina
37106-00002/1666123.3

1

DECLARATION OF DR. ANTON G. MAURER IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

1 2 3 4 5 6 7 8 9
GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

Scheja and asserted that the proceeding scheduled in the German Action at the "Landgericht Stuttgart" on December 16, 2008 is not a "trial" as that term is used in the United States but instead is the German procedural equivalent of what in the U.S. "we would term a Case Management Conference." (Facebook Opp. at 4:5-6; p.8 of 20) (Docket No. 59). 3. Facebook's Opposition brief further contends that the hearing in

Germany on December 16 is not "a `trial' in the sense that we use the word here in the United States -- a resolution on the merits. Instead, it is more akin to a Case Management Conference, where Facebook will not be expected to produce any documentary evidence." (Facebook Opp. at 14:11-14; p.18 of 20) (Docket No. 59). 4. For the following reasons, Facebook's contentions (as outlined in

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

Paragraphs 2 and 3 above) are factually wrong and without any legal basis. a. Under point no. 1 of its July 23, 2008 Order, the Landgericht

Stuttgart scheduled a "Früher erster Termin zur mündlichen Verhandlung" (the literal translation of which is "early first date for oral trial"). b. Under point no. 2.2 of its July 23, 2008 Order, the Landgericht

Stuttgart ordered that Facebook, as defendant, must respond to the Complaint within six weeks if it wishes to defend itself. By its further Orders dated September 9, 2008 and October 15, 2008, and upon Facebook's motions, the Landgericht Stuttgart first extended Facebook's time to respond to October 24, 2008 and then to November 19, 2008. c.
37106-00002/1666123.3

The German Code of Civil Procedure ("Zivilprozessordnung")
2

provides, at § 277 subsection 1 sentence 1, that a defendant has to present, in its
DECLARATION OF DR. ANTON G. MAURER IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

1 2 3 4 5 6 7 8 9
GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

response to the Complaint, all defenses. Under point no. 2.2 of its July 23, 2008 Order, the Landgericht Stuttgart referred to §§ 277 subsection 2, and 296 subsections 1 and 3 of the German Code of Civil Procedure, and instructed Facebook to sub mit in its response to StudiVZ's Complaint (i) all pleas and defenses against the Complaint, (ii) all offers to produce evidence and to state what that evidence is, and (iii) all opposition to evidence produced by StudiVZ Ltd., and all within the stipulated time frame of the response (i.e.; by November 19, 2008). If Facebook would have missed this deadline, Facebook would have been in default and all further defense of the lawsuit by Facebook would have been cut off unless Facebook could convince the court to excuse the delay. Thus, the Order required Facebook to present all of its defenses, including any documentary evidence and all offers to produce evidence, in its response to the Complaint that was due on Nove mber 19, 2008. d. And, in fact, on November 19, 2008, Facebook filed a lengthy

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

response in the German Action presenting all of Facebook's defenses and evidence. A true and correct copy of Facebook's response in the German Action is attached hereto as "Exhibit O" (the "Response"). Facebook's Response is eighty-eight pages long, consisting of a six page, single-spaced answer and attaching and incorporating by reference an exhibit "B1" that is an eighty-two page document containing a lengthy, single-spaced complaint that Facebook just filed on the same day -- November 19, 2008 -- against StudiVZ at the "Landgericht Köln" (district court Cologne), Germany, offers of purported proof on all significant issues, and a stack of exhibits that Facebook alleges support its new German lawsuit. This is obviously nothing like the report of the early meeting of counsel or "case management conference" statement in the instant U.S. federal lawsuit. The reason for that is simple -- Facebook must put forth all of its defenses and factual arguments now, because a trial date of December 16, 2008 was set in the German
37106-00002/1666123.3

3

DECLARATION OF DR. ANTON G. MAURER IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

1 2 3 4 5 6 7 8 9
GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

Action months ago and the court in Stuttgart has denied two requests by Facebook to postpone it. If Facebook had not made all of its written arguments and submitted its offers of proof and alleged supporting evidence in the Response, then Facebook could not have submitted them later without court approval, and Facebook would have increased its risk of an adverse judgment at the December 16, 2008 trial. Facebook's Response even contains a petition to dismiss the case based upon an alleged lack of admissibility of the claims filed by StudiVZ. This is a legal argument which will be decided by the "Landgericht Stuttgart" without taking any further evidence. If the "Landgericht Stuttgart" would find Facebook's argument to be correct, it would dismiss the case after the oral trial on December 16, 2008. Therefore, based on its petition, even Facebook expects to have only one oral trial date. e. § 275 subsection 2 and § 300 subsection 1 of the German Code

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

of Civil Procedure further discuss what can happen at the December 16, 2008 "early first date for oral trial" in the German Action. Those sections state that the court shall render a judgment after such early first date of oral trial if the court finds that the matter is then ripe for decision. In Germany, a judgment is often rendered after the early first date of oral trial. Only if Facebook also requests the testimony of witnesses or expert reports could there possibly be (in the court's discretion) a second oral trial date. Even if the Stuttgart court would conclude after the oral trial on December 16, 2008 that the German Action cannot be decided after the early first date of oral trial and that a second oral trial date is necessary, the Stuttgart court would make all appropriate orders to bring the German Action to a rapid conclusion and judgment. f.
37106-00002/1666123.3

Upon information and belief, it is also my understanding that a
4

Case Management Conference in the United States is an early pre-trial conference
DECLARATION OF DR. ANTON G. MAURER IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

1 2 3 4 5 6 7 8 9
GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

under Rule 16 of the Federal Rules of Civil Procedure and that, absent a settlement, there can be no final judgment rendered at the end of a Case Management Conference. Therefore, it is completely inaccurate to say that the first early date of oral trial under the German Code of Civil Procedure is the same as a Case Management Conference. g. The Declaration of Dr. Katharina Scheja filed in opposition to

the instant motion appears to me to be cautiously drafted and so does not say that a judgment will not be rendered after the December 16, 2008 early first date of oral trial in the German Action. Indeed, such a statement would have been wrong based upon the petition filed by Facebook. Instead, I note that Dr. Scheja states in the second sentence of Paragraph 4 of her Declaration that, if no settlement is made, the judge will "usually" schedule future hearings and deadlines. However, this statement does not exclude that a judgment will be rendered after such early first date of oral trial. In contrast to the courts in Frankfurt (the city in which Dr. Scheja's office is located), the courts in the district of the "Oberlandesgericht Stuttgart" have a "rocket docket." In my experience, the Landgericht Stuttgart will schedule a second date for oral trial only in cases that require the court to hear witnesses or experts for rendering a final judgment. Otherwise, the Landgericht Stuttgart will render a judgment after the early first date of oral trial. 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 to the best of my knowledge, and that this declaration was executed in Stuttgart, Germany on December 2, 2008. /s Anton G. Maurer Dr. Anton G. Maurer
37106-00002/1666123.3

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

.

5

DECLARATION OF DR. ANTON G. MAURER IN SUPPORT OF MOTION FOR PROTECTIVE ORDER