Facebook, Inc. v. Studivz, Ltd et al

Filing 87

Declaration of Julio C. Avalos in Support of 86 MOTION for Sanctions Against StudiVZ LTD., Holtzbrinck Ventures GMBH and Holtzbrinck Networks GMBH Pursuant to Civil L.R. 7-1 and 37-2 filed byFacebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 86 ) (Gray, Thomas) (Filed on 1/27/2009)

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EXHIBIT A Hearing 12/16/2008 Page 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 December 16, 2008 at 10:31 a.m. before The Honorable Howard R. Lloyd, United States Magistrate Judge, Courtroom 2, Fifth Floor. CASE NO. 5:08-CV-03468 JF APPEARANCES: ON BEHALF OF PLAINTIFF: ORRICK, HERRINGTON & SUTCLIFFE, LLP By Annette L. Hurst 1000 Marsh Road Menlo Park, CA 94043 ON BEHALF OF DEFENDANTS: GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER, LLP By Stephen S. Smith 1900 Avenue of the Stars Suite 2100 Los Angeles, CA 90067 West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 2 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 THE CLERK: Let's see, Facebook and StudiVZ. Facebook I probably didn't pronounce that right. against a bunch of German entities. MS. HURST: Good morning, Your Honor, Annette Hurst from Orrick for plaintiff Facebook. MR. SMITH: Good morning, Your Honor, Stephen Smith, Greenberg Glusker on behalf of StudiVZ, Holtzbrinck Ventures and Holtzbrinck Networks. THE COURT: Hello, counsel. The defendants move for a protective order. They want to stay discovery that's unrelated to personal jurisdiction issues raised in their motions to dismiss until those motions are resolved, and they want to preclude Facebook from using in the German action any discovery obtained in the instant lawsuit. the first one first. As I understand it, the defendants agree that if, in the course of investigating personal jurisdiction, that discovery would also go to the merits, that that wouldn't be a problem. MR. SMITH: THE COURT: That's correct, Your Honor. Okay. So, your objection is to And we'll talk about discovery which is solely, you say, directed at merits at this time? MR. SMITH: That's correct, Your Honor. West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 3 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 THE COURT: depositions, too. And that would apply to the In other words, you're not opposed to a deposition -- and I know there were several sought -- that are on personal jurisdiction issues, at this time? MR. SMITH: That's correct, Your Honor, two of them are currently scheduled to occur in January. THE COURT: ask it this way: And do you think that -- let me Do you agree that you should be limited to discovery which deals with personal jurisdiction, even if it happens to also overlap into merits? Or do you say "I should be able to do anything I want, within reason?" MS. HURST: Your Honor, we certainly disagree that there must be some prima facie standard met on personal jurisdiction in order to conduct discovery. That collapses the merit standard for evaluating a personal jurisdiction motion with the current inquiry, and that is improper. That said, as a practical matter, we have not conducted discovery that is solely related to the merits. For example, no damages discovery has been propounded, Your Honor, and so we have taken a practical approach, but there is a significant difference between the parties in terms of framing the West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 4 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 issues for personal jurisdiction. And we don't want to get dragged into some quagmire where we contend it's related to personal jurisdiction and they don't simply because it's not covered by one of the declarations that they filed in support of their motion. THE COURT: Am I being dragged into the quagmire now, being asked to rule on your discovery requests and to parse those out which deal with personal jurisdiction and those which deal only with merits? MS. HURST: Your Honor, in fact, the motion has not presented that issue to the court properly. The proposed order asks simply for a blanket scope that, unless it's a dispute of material issue raised in their motion to dismiss, we can't take discovery on it. THE COURT: MS. HURST: Oh, I'm not going to sign that. So the proper procedure -- Your Quite Honor, no protective order is necessary here. frankly, we haven't conducted any discovery that is solely related to the merits, such as damages discovery. We have engaged in further meet and confer about specific discovery requests for several weeks since the time this motion has been filed. We have largely been able to work out every issue, and there remain, I believe, Your Honor, very few issues that West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 5 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 would come back before this court in the context of further dispute about a burden versus relevance analysis, whether it be for personal jurisdiction or merits purposes. Respectfully, Your Honor, this motion is unnecessary, but it's also misguided in terms of its substantive standards. MR. SMITH: THE COURT: Can I respond to that? Well, yeah, but just a minute. Now, you're not telling me you've worked this out and the time that I've spent on this is wasted, are you? MS. HURST: Your Honor, it was our view as set forth in the opposition that this motion was premature and unnecessary. THE COURT: No, I'm talking about you said in the weeks since it was briefed and -- filed and briefed that you've continued to talk, and there was some allusion there to where "we've got it mostly worked out." MS. HURST: Well certainly, Your Honor, we continue to meet and confer regarding the specific discovery that was served in the context of the responses that were received from the defendants, whether they were sufficient or not, what documents would be produced, what interrogatories would be West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 6 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 answered, and what witnesses would be produced for deposition, which is part of the reason why, Your Honor, in our opposition we took the view there had been inadequate meet and confer with respect to this motion and that it should be denied on that ground, as well. THE COURT: Well, there's like 30 requests And I understood that I and for document production. my staff was going to go through these and decide whether they were exclusively merits-based discovery or whether they had a tinge of personal jurisdiction. Shouldn't they have done that? MR. SMITH: I think we're in agreement with that, Your Honor, that's not what the motion for protective order is directed at. I would disagree with two other things Ms. Hurst said, with all due respect. One, there has been a tremendous amount of meet and confer about this. about it for months. The responses to this discovery were not even due until after the motion for protective order was filed, and that goes to the other thing I'd like to say. I asked counsel for Facebook, Ms. Hurst's We've been meeting and conferring colleague, Warrington Parker, repeatedly prior to filing the motion, "are you saying that you're going to West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 7 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 insist on the right to take merits-based discovery now, and if so, I'm going to have to file a motion for protective order. If you would just agree not to do that, I won't have to file a motion for protective order." He refused to agree to that, that's the only reason the motion for protective order was filed. THE COURT: So, what are you looking for? Now I'm really confused. MR. SMITH: We're just looking for an order that they not be entitled to engage in merits-based -solely merits-based discovery. THE COURT: that means. MR. SMITH: Well, Your Honor, after they But you two won't agree on what filed their opposition, I called Ms. Hurst and said "is it even necessary to have a fight about this anymore?" I said "why don't we just have an agreement," I did use the word "stipulation," I believe, but "an agreement that you won't do merits-based discovery -- solely merits-based discovery while the motions to dismiss are pending?" And she said she was afraid that if I got that kind of stipulation and order, I would "lord it" over her heard. calendar. THE COURT: So, with reference to the So that's why this is still on the West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 8 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 document and production requests, and I think there are 30 of them, have you responded to them by now? MR. SMITH: Yes, Your Honor. And then afterwards, we have had as Ms. Hurst said, some I think productive meet and confer. I don't think that we're in total agreement, but there has been a substantial amount, I think, of progress made. THE COURT: And so the time that we spent looking through them and trying to assess whether it was related to personal jurisdiction or simply based on merit, is time that was not well spent? understand. MR. SMITH: Yes, Your Honor, but we didn't I'm trying to ask for that and we have been -- in fact, at the time we filed our motion, there hadn't even been a response yet to that discovery. The motion is not directed to that discovery, it's directed towards their insistence, it's not just in the discovery, it's in the Rule 26(f) statement, the case management conference statement. THE COURT: But when you say "it's not directed to that discovery," then what is it directed to? MR. SMITH: It's directed to having a protective order to prevent certain discovery from occurring. Normally, if you're going to just object to West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 9 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 discovery that is propounded, you object and the other side needs to compel. I was seeking a motion for protective order because Mr. Parker would not agree not to serve merits-based discovery while the motions to dismiss were pending. THE COURT: Okay, well, that's interesting. Ms. Hurst, what do you think I'm being asked to decide? MS. HURST: Your Honor, respectfully, I always look at the proposed order to really try to ascertain where the rubber meets the road, and I understood the motion to be some kind of a request for a blanket line drawing about what discovery could be conducted and what discovery not. I did not understand it to be requesting the court to go through on a item-by-item basis, and in fact, that was one of the reasons that we objected to the motion, because we thought such a procedure would be premature in that they had not yet responded and we had not met and conferred about specific requests. THE COURT: Am I going to get a motion now to compel further responses to the RFPs or the interrogatories now that you've gotten responses? MS. HURST: Your Honor, I can't answer that question today because we don't have the supplemental responses and the document production. It is possible. West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 10 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 There is at least one issue that we have identified that we are unlikely to come to an agreement on that may come back to the court in the future, but it may be unnecessary for us to bring it back to the court if, after the production of documents, the interrogatory responses, and the depositions we ascertain that we have a sufficient amount of information to proceed in opposing the motion. MR. SMITH: And I think Ms. Hurst will agree with me here that even if we have that disagreement or others, it's going to be much narrower than the entire universe of the discovery that was propounded, because on much of that we have come to an agreement. THE COURT: Well, if I were to sign the proposed order, which I think you said would preclude merits-based discovery at this point, -MR. SMITH: THE COURT: Solely merits-based, Judge. -- aren't you two going to disagree over what merit-based discovery is? MS. HURST: Yes, Your Honor, which is why I But was unwilling to agree to a stipulation on this. frankly, Your Honor, the process of give and take during meet and confer is a much better way to resolve that dispute than some kind of blanket advance pronouncement. West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 11 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 THE COURT: MS. HURST: MR. SMITH: that, Your Honor. I'll go for that. We can work this out, Your Honor. I don't even have a problem with I only filed the motion for protective order because I felt like I was forced to. I was told by Mr. Parker that I was going to be -- that they were insisting on the right to conduct, right then and there, merits-based discovery. THE COURT: You know, you always have the right if they submit a discovery request that is merits-based, to bring a motion to -- so that you don't have to respond to it. MR. SMITH: should have done. THE COURT: Yeah, because now we're -- this This is like And in retrospect, that's what I is very -- this is up in the clouds. asking for an advisory opinion on something which isn't a real dispute at the moment, apparently. MR. SMITH: I thought it was a real dispute. I had three different conversations with Mr. Parker about this. THE COURT: MR. SMITH: motion prematurely. Okay. So, I apologize if I brought the I expected to be getting it any moment, merits-based discovery, while the motions to West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 12 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 dismiss were pending. THE COURT: motion. MR. SMITH: one. THE COURT: Well, that's nice, but we've Are you withdrawing I think it will be a much smaller And then I'm going to get a already dealt with this big one. this motion? MR. SMITH: THE COURT: That part of it. Fine, then the record will reflect that the defendants have withdrawn the portion of the motion dealing with what the court interpreted to be a dispute over merits-based versus personal jurisdiction discovery. All right, as to the other part of the motion which deals with the defendants' assertion that Facebook should be precluded from using any discovery it obtains here in the US of A in the German action, the German action is an action brought by these defendants in this court against Facebook in Germany, apparently intending to obtain a judgment in Germany saying that whatever they did was perfectly okay. MR. SMITH: Just for the record, Your Honor, Facebook filed a But there are now two actions in Germany. separate action after this motion was filed. West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 13 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 otherwise, that is correct. THE COURT: Okay. Now, you want me to order Facebook that they cannot use any discovery they obtain in the US of A in Germany? MR. SMITH: THE COURT: That's correct, Your Honor. And why would I be doing that? Wouldn't that be the German court's job to determine what discovery it is willing to consider? MR. SMITH: I think that may be correct if we didn't have the issue of the defendants even being in this case to begin with, Your Honor. It is our position that the case shouldn't have been filed to begin with, which is why the motions to dismiss are currently pending in front of the District Court. It seems -- maybe I'm missing something, but it seems completely unfair to have had a case that potentially never should have been filed in the first place used to obtain discovery in Germany, especially when all of the information is found in Germany. That information should be discovered for purposes of being used in the German action pursuant to the German procedure for that. THE COURT: Well, there's two possibilities. One is, it just happens to be a US action and there is a German action, and I don't know of any rule that West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 14 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 would say that the US court should tell the litigant it cannot use any discovery it acquired in the US of A in Germany. That's up to the German court. The other possibility, and there is a case or two cited about that, is if the lawsuit is brought in the US of A solely for the purpose of getting discovery which they otherwise couldn't get in Germany. don't know that I have any evidence of that. MR. SMITH: No, and I think in all fairness, But I I would concede I don't think Facebook brought the case solely to get discovery in America for use in Germany, and I don't think we argued that. THE COURT: MR. SMITH: No, I don't think you did either. Yeah, but my point is: If it turns out -- there are motions to dismiss currently pending. If it turns out that those motions should be granted, and I know we're not here to argue that today, but if it turns out that those motions should be granted and the case never should have been filed against the defendants, and we have had one defendant who has been dismissed already, so it's -- and the motions are well founded. I don't think anyone is Then the process arguing they are intolerable motions. in the United States shouldn't have happened at all. And the rules in Germany are quite different. West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 15 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 You can get discovery, but it's much more limited. It usually has to take place in front of the court at the time it is being offered or obtained, and it just doesn't seem right, and I think the 1782 cases that we cited indicate that discovery in that context is not appropriate to be used in a foreign action. Now, I do recognize, and we make this point in our papers, that this is not directly on a 1782 situation. THE COURT: I don't think 1782 has anything to do with this situation. MR. SMITH: I think it's analogous, but I don't think it's directly on point because in 1782 you don't have a separate already pending civil action in the United States. You actually go to the United States for discovery. THE COURT: So you want me to order that if the motions to dismiss get granted and the case is dismissed, then they can't use the discovery in Germany or they can't try to; but if it doesn't get dismissed, then they can try to? MR. SMITH: That's not how we phrased it, but I would be okay with that because that's my concern about it is -- I agree with you, we shouldn't be going down this road to begin with if we shouldn't have been West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 16 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 in the case to begin with. That's the argument. If, after we are not dismissed, if we are not dismissed, they want to argue to the German court, we should be allowed to use this, then I don't feel like I need an order from Your Honor that I go to Germany and say "no, Germany, you can't consider that because it has already been decided in the United States." the purpose of this motion is for. THE COURT: I guess I'm not entirely clear on That's not what why, if the case is dismissed, and that would somehow invalidate discovery that has been obtained or immunize it from potential use in Germany. MR. SMITH: Well, what it means is the defendant shouldn't have been sued here and so no discovery should take place. THE COURT: But so what, the discovery was obtained and while there was, at that point, a viable action. MR. SMITH: I guess the issue I'm having, If defendants Your Honor, is the word "viable action." shouldn't have been sued or continuing to be sued prior to their motion to dismiss being heard, is this viable, then yes. But if you have a valid motion to dismiss for lack of personal jurisdiction, I wouldn't call that action viable. West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 17 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 THE COURT: Ms. Hurst, briefly? MS. HURST: Okay, what do you have to say, Your Honor, the German court is the place to determine whether this evidence would be admissible or not. unjust. It is inefficient, and frankly, It does not lie in the mouth of the defendants to assert that there is relevant evidence establishing their liability that we shouldn't be able to go and use elsewhere subject to local rules. It's just -- it's an unseemly contention, Your Honor. And to the extent that they are arguing -Unseemly contention, I like that. THE COURT: I'll have to remember that. MS. HURST: To the extent that they are arguing, Your Honor, that because the discovery would be unavailable in German court, you know, and they're using this kind of back door approach with the 1782 cases on this, Your Honor, I would like to point out that that implication has been expressly rejected by the United States Supreme Court under 1782 in the Intel v. AMD case, 542 U.S. 241. In that case, the court said "we're not going to import a categorical foreign discovery rule into 1782." And so, again, saying "it's a matter of local law," and that's the way it should be here, as well, West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 18 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 Your Honor. THE COURT: MS. HURST: MR. SMITH: Okay, the matter is submitted. Yes, thank you. Can I briefly respond to the unseemliness just because I felt like that wasn't fair? There are rules in the United States about privilege, for example. THE COURT: there. MR. SMITH: do anything unseemly. This isn't -- we're not trying to If the United States has a rule, There was a bit of hyperbole for example, about attorney-client privilege, that sometimes will cover relevant information. I don't know what Germany's rule about attorney-client privilege is, I'm just saying that the German rule ought to apply to the stuff that's going to be used there. Otherwise, submit Your Honor. THE COURT: MS. HURST: All right, thank you, counsel. Your Honor, I have a proposed form of protective order that allows the use in all pending proceedings between the parties. It has been It is shared with Mr. Smith in advance of the hearing. the same as the stipulated form of order that we previously submitted to the court, with the exception West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 19 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 of resolving this issue in the plaintiff's favor. could hand it up or submit it electronically to the court after the hearing. THE COURT: MS. HURST: Is it a stipulated order? I There was a stipulated form of order that we filed to have in place pending resolution of this dispute. THE COURT: Right, I remember that, and we were thinking "well, if we issued an order today, then we wouldn't need that one." part of it. MR. SMITH: THE COURT: MS. HURST: MR. SMITH: No, it's the German issue. The German issue. On the German issue. I agree with Ms. Hurst here. Let me see if I She But you've withdrawn that did give me the language yesterday. can state it, the District Court's form order, which is basically what we've used so far. THE COURT: MR. SMITH: Right. Says you can only use If I confidential information in this action. basically lose the second half of my motion for protective order, -THE COURT: MR. SMITH: Yeah. -- they want to say "expand it so West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 20 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 it can be used in this action or other litigation pending between the parties." THE COURT: Suppose it's silent on it. See, I'm inclined, on the second part of your motion, I'm inclined to simply say that I'm not precluding the plaintiff from using it. MR. SMITH: That's all. Right, I think that there is a distinction there, Your Honor, because you don't want to necessarily have an order giving them the right to use it and then you're going to deny my request prohibiting it. THE COURT: MS. HURST: Not precluding it. I think that is what our proposed form of order accomplishes, Your Honor. THE COURT: Good. Well, it doesn't sound like you two have quite worked that out, so I don't want to see it right now. MR. SMITH: I do respectfully disagree with that. I think it makes it sound like in the way, and I'll go back and look at it, but it sounds to me like it says -- gives explicit permission for them to use it. MS. HURST: law, sure, certainly. MR. SMITH: I would rather it be silent. Well, in accordance with local West Court Reporting Services 800.548.3668 Ext. 1 Hearing 12/16/2008 Page 21 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 THE COURT: MS. HURST: MR. SMITH: Go work that out, please. Thank you, Your Honor. Thank you, Your Honor. (Hearing adjourned 10:52 a.m.) West Court Reporting Services 800.548.3668 Ext. 1 Hearing A AAERT 22:25 able 3:12 4:24 17:8 above-entitled 22:9 above-styled 1:12 accomplishes 20:14 acquired 14:2 action 2:14 12:18,19,19,25 13:21,24,25 15:6,14 16:18,20 16:25 19:21 20:1 22:13,15 actions 12:24 adjourned 21:4 admissible 17:5 advance 10:24 18:23 advisory 11:17 affixed 22:17 afraid 7:21 agree 2:17 3:9 7:3,5,12 9:3 10:9 10:21 15:24 19:15 agreement 6:13 7:17,18 8:6 10:2 10:13 allowed 16:4 allows 18:21 allusion 5:18 AMD 17:21 America 14:11 amount 6:17 8:7 10:7 analogous 15:12 analysis 5:3 Angeles 1:25 Annette 1:19 2:4 answer 9:23 answered 6:1 anymore 7:16 apologize 11:23 apparently 11:18 12:21 APPEARANCES 1:16 apply 3:1 18:16 approach 3:24 17:17 appropriate 15:6 argue 14:17 16:3 argued 14:12 arguing 14:23 17:11,15 argument 16:1 ascertain 9:10 10:6 asked 4:7 6:23 9:7 asking 11:17 asks 4:13 assert 17:7 assertion 12:16 assess 8:9 attorney-client 18:12,14 August 22:20 Avenue 1:24 a.m 1:12 21:4 B West Court Reporting Services back 5:1 10:3,4 17:17 20:20 based 8:10 basically 19:18,22 basis 9:15 behalf 1:18,22 2:7 believe 4:25 7:18 better 10:23 big 12:7 bit 18:8 blanket 4:13 9:12 10:24 Boone 22:5,24 briefed 5:16,16 briefly 17:2 18:4 bring 10:4 11:11 brought 11:23 12:19 14:5,10 bunch 2:3 burden 5:2 C CA 1:20,25 calendar 7:24 CALIFORNIA 1:1 call 16:24 called 7:15 case 1:4 8:19 13:11,12,16 14:4 14:10,19 15:18 16:1,10 17:21 17:22 cases 15:4 17:18 categorical 17:23 cause 1:12 certain 8:24 certainly 3:14 5:20 20:24 CERTIFICATE 22:2 Certified 22:5,25 certify 22:7,11 Christopher 22:5,24 cited 14:5 15:5 civil 15:14 CLAMAN 1:23 clear 16:9 CLERK 2:1 clouds 11:16 collapses 3:17 colleague 6:24 Colorado 22:1,7 come 5:1 10:2,3,13 commission 22:20 compel 9:2,21 completely 13:16 concede 14:10 concern 15:23 conduct 3:16 11:7 conducted 3:21 4:19 9:13 confer 4:21 5:21 6:4,18 8:5 10:23 conference 8:19 conferred 9:19 12/16/2008 conferring 6:18 confidential 19:21 confused 7:8 consider 13:8 16:6 contend 4:2 contention 17:10,12 context 5:1,22 15:5 continue 5:21 continued 5:17 continuing 16:21 conversations 11:20 correct 2:21,25 3:6 13:1,5,9 22:8 counsel 2:9 6:23 18:19 22:11 COUNTY 22:3 course 2:18 court 1:1 2:9,22 3:1,8 4:6,12,16 5:1,9,15 6:7 7:7,12,25 8:8,20 9:6,15,20 10:3,4,14,18 11:1,9 11:15,22 12:2,6,10,12,20 13:2 13:6,14,23 14:1,3,13 15:2,10 15:17 16:3,9,16 17:1,3,12,16 17:20,22 18:2,8,19,25 19:3,4,8 19:13,19,24 20:3,12,15 21:1 22:6,25 Courtroom 1:13 court's 13:7 19:17 cover 18:13 covered 4:4 current 3:18 currently 3:7 13:14 14:15 D damages 3:22 4:20 day 22:18 deal 4:8,9 dealing 12:12 deals 3:10 12:16 dealt 12:7 December 1:12 decide 6:9 9:7 decided 16:7 declarations 4:4 defendant 14:20 16:14 defendants 1:10,22 2:9,17 5:23 12:11,16,20 13:10 14:20 16:20 17:6 denied 6:5 DENVER 22:3 deny 20:10 deposition 3:3 6:2 depositions 3:2 10:6 determine 13:7 17:4 difference 3:25 different 11:20 14:25 digital 22:8 directed 2:23 6:15 8:16,17,21,21 8:23 800.548.3668 Ext. 1 Page 1 Hearing directly 15:8,13 disagree 3:14 6:15 10:19 20:18 disagreement 10:10 discovered 13:20 discovery 2:11,14,19,23 3:10,16 3:21,22 4:7,15,19,21,22 5:22 6:10,20 7:1,11,19,20 8:16,17 8:18,21,24 9:1,4,12,13 10:12 10:16,19 11:8,10,25 12:14,17 13:3,8,18 14:2,6,11 15:1,5,16 15:19 16:11,15,16 17:15,23 dismiss 2:12 4:15 7:20 9:5 12:1 13:13 14:15 15:18 16:22,23 dismissed 14:21 15:19,20 16:2 16:2,10 dispute 4:14 5:2 10:24 11:18,19 12:13 19:7 distinction 20:8 District 1:1,1 13:14 19:17 DIVISION 1:2 document 6:8 8:1 9:25 documents 5:24 10:5 doing 13:6 door 17:17 dragged 4:2,6 drawing 9:12 due 6:16,21 E either 14:13 Electronic 22:5,25 electronically 19:2 employed 22:12 engage 7:10 engaged 4:21 entire 10:11 entirely 16:9 entities 2:3 entitled 7:10 especially 13:18 establishing 17:7 evaluating 3:17 evidence 14:8 17:4,7 example 3:22 18:7,12 exception 18:25 exclusively 6:10 expand 19:25 expected 11:24 expires 22:20 explicit 20:21 expressly 17:19 extent 17:11,14 F Facebook 1:4 2:1,2,5,14 6:23 12:17,20,24 13:3 14:10 facie 3:15 fact 4:11 8:14 9:16 fair 18:5 fairness 14:9 far 19:18 favor 19:1 feel 16:4 felt 11:5 18:5 FIELDS 1:23 Fifth 1:13 fight 7:16 file 7:2,4 filed 4:5,23 5:16 6:22 7:6,15 8:15 11:4 12:24,25 13:12,17 14:19 19:6 filing 6:25 financially 22:14 Fine 12:10 first 2:16,16 13:17 Floor 1:13 forced 11:5 foregoing 22:7 foreign 15:6 17:23 form 18:21,24 19:5,17 20:14 forth 5:13 found 13:19 founded 14:22 framing 3:25 frankly 4:19 10:22 17:5 front 13:14 15:2 further 4:21 5:2 9:21 22:11,14 future 10:3 G German 2:3,14 12:18,19 13:7,21 13:21,25 14:3 16:3 17:3,16 18:15 19:12,13,14 Germany 12:20,21,24 13:4,18 13:19 14:3,7,11,25 15:19 16:5 16:6,12 Germany's 18:14 getting 11:24 14:6 give 10:22 19:16 gives 20:21 giving 20:9 Glusker 1:23 2:7 GMBH 1:7,8 go 2:19 6:9 9:15 11:1 15:15 16:5 17:8 20:20 21:1 goes 6:22 going 4:16 6:9,25 7:2 8:25 9:20 10:11,18 11:6 12:2 15:24 17:22 18:16 20:10 Good 2:4,6 20:15 gotten 9:22 granted 14:17,19 15:18 Greenberg 1:23 2:7 ground 6:5 guess 16:9,19 12/16/2008 H half 19:22 hand 19:2 happened 14:24 happens 3:11 13:24 heard 7:23 16:22 hearing 1:12 18:23 19:3 21:4 22:13 Hello 2:9 HERRINGTON 1:19 Holtzbrinck 2:8,8 HOLTZBRINK 1:7,8 Honor 2:4,6,21,25 3:6,14,23 4:11,18,25 5:5,12,20 6:3,14 7:14 8:3,13 9:8,23 10:20,22 11:2,4 12:23 13:5,11 16:5,20 17:3,11,15,18 18:1,18,20 20:8 20:14 21:2,3 Honorable 1:12 Howard 1:13 Hurst 1:19 2:4,5 3:14 4:11,17 5:12,20 6:16 7:15 8:4 9:7,8,23 10:9,20 11:2 17:2,3,14 18:3,20 19:5,14,15 20:13,23 21:2 Hurst's 6:23 hyperbole 18:8 I identified 10:1 immunize 16:11 implication 17:19 import 17:23 improper 3:19 inadequate 6:4 inclined 20:4,5 indicate 15:5 inefficient 17:5 information 10:7 13:19,20 18:13 19:21 inquiry 3:18 insist 7:1 insistence 8:17 insisting 11:7 instant 2:15 Intel 17:20 intending 12:21 interested 22:15 interesting 9:6 interpreted 12:12 interrogatories 5:25 9:22 interrogatory 10:5 intolerable 14:23 invalidate 16:11 investigating 2:18 issue 4:12,14,24 10:1 13:10 West Court Reporting Services 800.548.3668 Ext. 1 Page 2 Hearing 16:19 19:1,12,13,14 issued 19:9 issues 2:12 3:4 4:1,25 item-by-item 9:15 J January 3:7 22:18 JF 1:4 job 13:7 JOSE 1:2 Judge 1:13 10:17 judgment 12:21 jurisdiction 2:11,19 3:4,11,16 3:18 4:1,3,9 5:3 6:11 8:10 12:14 16:24 K kind 7:22 9:11 10:24 17:17 know 3:3 11:9 13:25 14:8,17 17:16 18:14 L L 1:19 lack 16:24 language 19:16 largely 4:24 law 17:25 20:24 lawsuit 2:15 14:5 Let's 2:1 liability 17:8 lie 17:6 limited 3:10 15:1 line 9:12 litigant 14:1 litigation 20:1 Lloyd 1:13 LLP 1:19,23 local 17:9,24 20:23 look 9:9 20:20 looking 7:7,9 8:9 lord 7:22 Los 1:25 lose 19:22 M MACHTINGER 1:23 Magistrate 1:13 management 8:19 Marsh 1:20 material 4:14 matter 3:20 17:24 18:2 22:9 means 7:13 16:13 meet 4:21 5:21 6:4,17 8:5 10:23 meeting 6:18 meets 9:10 Menlo 1:20 merit 3:17 8:11 merits 2:20,23 3:12,22 4:10,20 5:4 merits-based 6:10 7:1,10,11,19 7:20 9:4 10:16,17 11:8,11,25 12:13 merit-based 10:19 met 3:15 9:19 minute 5:9 misguided 5:6 missing 13:15 moment 11:18,25 months 6:19 morning 2:4,6 motion 3:18 4:5,11,15,23 5:5,13 6:5,14,21,25 7:2,4,6 8:15,16 9:2,11,17,20 10:8 11:4,11,24 12:3,8,12,15,25 16:8,22,23 19:22 20:4 motions 2:12,13 7:20 9:4 11:25 13:13 14:15,16,18,22,23 15:18 mouth 17:6 move 2:10 N narrower 10:11 necessarily 20:9 necessary 4:18 7:16 need 16:4 19:10 needs 9:2 neither 22:11 Networks 1:7 2:8 never 13:17 14:19 nice 12:6 Normally 8:25 NORTHERN 1:1 Notary 22:6 O object 8:25 9:1 objected 9:16 objection 2:22 obtain 12:21 13:3,18 obtained 2:15 15:3 16:11,17 obtains 12:18 occur 3:7 occurring 8:25 offered 15:3 Oh 4:16 okay 2:22 9:6 11:22 12:22 13:2 15:23 17:1 18:2 opinion 11:17 opposed 3:2 opposing 10:8 opposition 5:13 6:3 7:15 order 2:10 3:16 4:13,18 6:15,21 7:3,5,6,9,22 8:24 9:3,9 10:15 11:5 13:2 15:17 16:5 18:21,24 12/16/2008 19:4,6,9,17,23 20:9,14 Orrick 1:19 2:5 ought 18:16 outcome 22:15 overlap 3:11 P papers 15:8 Park 1:20 Parker 6:24 9:3 11:6,20 parse 4:8 part 6:2 12:9,15 19:11 20:4 parties 3:25 18:22 20:2 22:12 pending 7:21 9:5 12:1 13:14 14:16 15:14 18:22 19:6 20:2 perfectly 12:22 permission 20:21 personal 2:11,18 3:4,10,16,18 4:1,3,9 5:3 6:11 8:10 12:13 16:24 phrased 15:22 place 13:18 15:2 16:15 17:4 19:6 plaintiff 1:5,18 2:5 20:6 plaintiff's 19:1 please 21:1 point 10:16 14:14 15:7,13 16:17 17:18 portion 12:11 position 13:12 possibilities 13:23 possibility 14:4 possible 9:25 potential 16:12 potentially 13:17 practical 3:20,24 preclude 2:13 10:15 precluded 12:17 precluding 20:5,12 premature 5:14 9:18 prematurely 11:24 presented 4:12 prevent 8:24 previously 18:25 prima 3:15 prior 6:24 16:21 privilege 18:6,12,15 probably 2:2 problem 2:20 11:3 procedure 4:17 9:17 13:22 proceed 10:7 proceedings 18:22 22:9 process 10:22 14:23 produced 5:25 6:1 production 6:8 8:1 9:25 10:5 productive 8:5 progress 8:7 prohibiting 20:11 West Court Reporting Services 800.548.3668 Ext. 1 Page 3 Hearing pronounce 2:2 pronouncement 10:25 proper 4:17 properly 4:12 proposed 4:13 9:9 10:15 18:20 20:13 propounded 3:23 9:1 10:12 protective 2:10 4:18 6:15,21 7:3 7:4,6 8:24 9:3 11:5 18:21 19:23 Public 22:6 purpose 14:6 16:8 purposes 5:4 13:20 pursuant 13:21 Q quagmire 4:2,7 question 9:24 quite 4:18 14:25 20:16 R R 1:13 raised 2:12 4:14 real 11:18,19 really 7:8 9:9 reason 3:13 6:2 7:6 reasons 9:16 received 5:23 recognize 15:7 record 12:10,23 recording 22:8 reference 7:25 reflect 12:11 refused 7:5 regarding 5:21 rejected 17:19 related 3:21 4:3,20 8:10 22:12 relevance 5:2 relevant 17:7 18:13 remain 4:25 remember 17:13 19:8 repeatedly 6:24 Reporter 22:6,25 request 9:11 11:10 20:10 requesting 9:14 requests 4:8,22 6:7 8:1 9:19 resolution 19:6 resolve 10:23 resolved 2:13 resolving 19:1 respect 6:4,16 respectfully 5:5 9:8 20:18 respond 5:8 11:12 18:4 responded 8:2 9:18 response 8:15 responses 5:23 6:20 9:21,22,25 10:6 retrospect 11:13 RFPs 9:21 right 2:2 7:1 11:7,7,10 12:15 15:4 18:19 19:8,19 20:7,9,17 road 1:20 9:10 15:25 rubber 9:10 rule 4:7 8:18 13:25 17:23 18:11 18:14,15 rules 14:25 17:9 18:6 S S 1:23 SAN 1:2 saying 6:25 12:22 17:24 18:15 says 19:20 20:21 scheduled 3:7 scope 4:13 seal 22:18 second 19:22 20:4 see 2:1 19:16 20:3,17 seeking 9:2 separate 12:25 15:14 serve 9:4 served 5:22 set 5:13 shared 18:23 side 9:2 sign 4:16 10:14 signature 22:18 significant 3:24 silent 20:3,25 simply 4:3,13 8:10 20:5 situation 15:9,11 smaller 12:4 Smith 1:23 2:6,7,21,25 3:6 5:8 6:13 7:9,14 8:3,13,23 10:9,17 11:3,13,19,23 12:4,9,23 13:5,9 14:9,14 15:12,22 16:13,19 18:4,10,23 19:12,15,20,25 20:7,18,25 21:3 solely 2:23 3:21 4:20 7:11,19 10:17 14:6,11 sought 3:3 sound 20:15,19 sounds 20:20 specific 4:22 5:21 9:19 spent 5:11 8:8,11 ss 22:2 staff 6:9 standard 3:15,17 standards 5:7 Stars 1:24 state 19:17 22:1,7 statement 8:19,19 States 1:1,13 14:24 15:15,16 16:7 17:20 18:6,11 stay 2:10 12/16/2008 Stephen 1:23 2:6 stipulated 18:24 19:4,5 stipulation 7:18,22 10:21 StudiVZ 1:7 2:1,7 stuff 18:16 subject 17:9 submit 11:10 18:18 19:2 submitted 18:2,25 substantial 8:6 substantive 5:7 sued 16:14,21,21 sufficient 5:24 10:7 Suite 1:24 supplemental 9:24 support 4:5 Suppose 20:3 Supreme 17:20 sure 20:24 SUTCLIFFE 1:19 T take 4:15 7:1 10:22 15:2 16:15 taken 3:23 22:13 talk 2:15 5:17 talking 5:15 tell 14:1 telling 5:10 terms 3:25 5:6 thank 18:3,19 21:2,3 thing 6:22 things 6:16 think 3:8 6:13 8:1,4,5,7 9:7 10:9 10:15 12:4 13:9 14:9,10,12,13 14:22 15:4,10,12,13 20:7,13 20:19 thinking 19:9 thought 9:17 11:19 three 11:20 time 2:24 3:5 4:23 5:11 8:8,11 8:14 15:3 tinge 6:11 today 9:24 14:17 19:9 told 11:6 total 8:6 transcription 22:8 tremendous 6:17 try 9:9 15:20,21 trying 8:9,11 18:10 turns 14:15,16,18 two 3:6 6:16 7:12 10:18 12:24 13:23 14:5 20:16 U unavailable 17:16 understand 2:17 8:12 9:14 understood 6:8 9:11 unfair 13:16 West Court Reporting Services 800.548.3668 Ext. 1 Page 4 Hearing United 1:1,13 14:24 15:15,15 16:7 17:20 18:6,11 universe 10:12 unjust 17:6 unnecessary 5:6,14 10:4 unrelated 2:11 unseemliness 18:5 unseemly 17:10,12 18:11 unwilling 10:21 use 7:17 13:3 14:2,11 15:19 16:4 16:12 17:8 18:21 19:20 20:10 20:21 usually 15:2 U.S 17:21 V v 1:6 17:21 valid 16:23 Ventures 1:8 2:8 versus 5:2 12:13 viable 16:17,20,22,25 view 5:12 6:3 W want 2:10,13 3:13 4:1 13:2 15:17 16:3 19:25 20:8,17 Warrington 6:24 wasn't 18:5 wasted 5:11 way 3:9 10:23 17:25 20:19 weeks 4:22 5:16 we'll 2:15 we're 6:13 7:9 8:5 11:15 14:17 17:22 18:10 we've 5:18 6:18 12:6 19:18 whereof 22:17 willing 13:8 withdrawing 12:7 withdrawn 12:11 19:10 witness 22:17 witnesses 6:1 word 7:18 16:20 words 3:2 work 4:24 11:2 21:1 worked 5:10,18 20:16 wouldn't 2:20 13:7 16:24 19:10 Y yeah 5:9 11:15 14:14 19:24 yesterday 19:16 1 1-25 1:8 10:31 1:12 10:52 21:4 1000 1:20 11th 22:18 16 1:12 22:20 1782 15:4,8,10,13 17:17,20,24 1900 1:24 2 2 1:13 2008 1:12 2009 22:18 2010 22:20 2100 1:24 241 17:21 26(f) 8:18 3 30 6:7 8:2 5 5:08-CV-03468 1:4 542 17:21 9 90067 1:25 94043 1:20 12/16/2008 West Court Reporting Services 800.548.3668 Ext. 1 Page 5

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