Facebook, Inc. v. Studivz, Ltd et al

Filing 75

Declaration of Julio C. Avalos in Support of 71 Memorandum in Opposition, [Supplemental Declaration] in Support of Facebook's Opposition to Defendants' Motions to Dismiss filed byFacebook, Inc.. (Related document(s) 71 ) (Gray, Thomas) (Filed on 1/17/2009)

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Facebook, Inc. v. Studivz, Ltd et al Doc. 75 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 I. NEEL CHATTERJEE (State Bar No. 173985) nchatterjee@orrick.com JULIO C. AVALOS (STATE BAR NO. 255350) javalos@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: 650-614-7400 Facsimile: 650-614-7401 THOMAS GRAY (STATE BAR NO. 191411) tgray@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 4 Park Plaza Suite 1600 Irvine, CA 92614-2558 Telephone: +1-949-567-6700 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 SUPPLEMENTAL DECLARATION OF JULIO C. AVALOS IN SUPPORT OF FACEBOOK'S OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS Date: February 13, 2008 Time: Judge: Honorable Judge Fogel OHS West:260583209.1 -1- SUPPLEMENTAL DECLARATION OF JULIO C. AVALOS Case No. 5:08-CV-03468 JF Dockets.Justia.com 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 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 Compel StudiVZ Ltd., Holtzbrinck Ventures GmbH and Holtzbrinck Networks GmbH to Permit Inspection of Documents and Things Pursuant to Civil L.R. 7-1 and 37-2. 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 January 6, 2009, I, along with my colleague Tom Gray, met and conferred with Defendants' counsel Stephen S. Smith and his partner William Walker. Near the end of the conference, Mr. Gray raised the issue of Facebook's upcoming January 16 deadline to oppose Defendants' motions to dismiss. Mr. Gray stated that it appeared unlikely that Facebook would receive the personal jurisdiction discovery that it sought prior to January 16 and that the parties should agree to take the hearing for Defendants' motions off calendar. Mr. Smith responded that he agreed to take the hearing off calendar for defendant StudiVZ, but would prefer not to so with respect to the Holtzbrinck defendants. He would agree to a continuance of a few weeks, but would not take the hearing off calendar because, he said, "I'm still hopeful that you guys will agree to voluntarily dismiss them. I'd agree to doing it without prejudice like we did for the other Holtzbrinck defendant. If you guys find out something later on, you'd be free to add them again, but for now my goal is to get them voluntarily dismissed without producing any discovery. I don't think they should be part of this case." Mr. Gray responded that he would prefer to take the Holtzbrinck Defendants' motions to dismiss hearing off calendar as well, but that the parties would talk about it again. The final word on the subject came from Mr. Gray, who sought confirmation that Mr. Smith would agree to take StudiVZ off calendar and grant a few week continuance with respect to the Holtzbrinck defendants. Mr. Smith stated, "That's right, but just a few weeks, two or three weeks." 3. On January 14, 2008, two days before Facebook's deadline, Defendants' counsel advised Facebook that he was reneging on this offer and would insist that Facebook file its OHS West:260583209.1 -2- SUPPLEMENTAL DECLARATION OF JULIO C. AVALOS Case 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 opposition to Defendants' motions to dismiss on January 16. 4. Facebook drafted its opposition in two days and timely filed it on January 16, 2009 at 11:58 p.m.. Facebook's time pressures were exacerbated by system-wide network malfunctions that created blackouts that prevented Facebook's counsel, paralegals and secretarial assistants from editing or working in the brief for significant periods of time on the night that it was due. These system-wide problems appear to have affected Orrick's nationwide computer networks, as they were felt by me in our firm's Silicon Valley office, Mr. Gray in the Orange County office and where observed by one of our firm's IT specialists stationed in Wheeling, West Virginia. 5. As a result of Defendants' eleventh hour demand that Facebook stick to the schedule and the intermittent network malfunctions, the declarations in support of Facebook's Opposition were filed shortly after the 12:00 a.m. deadline. I declare, under penalty of perjury, that the foregoing is true and correct to the best of my knowledge. Executed this 17th day of January, at Menlo Park, California. Julio C. Avalos OHS West:260583209.1 -3- SUPPLEMENTAL DECLARATION OF JULIO C. AVALOS Case 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 OHS West:260583209.1 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 January 17, 2009. Dated: January 17, 2009 Respectfully submitted, /s/ Julio C. Avalos /s/ Julio C. Avalos -1- SUPPLEMENTAL DECLARATION OF JULIO C. AVALOS Case No. 5:08-CV-03468 JF

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