Interserve, Inc. et al v. Fusion Garage PTE. LTD

Filing 12

Declaration of David S. Bloch in Support of Plaintiffs' Motion to Allow Discovery Prior to Rule 26 Conference on an Expedited Basis filed byCrunchPad, Inc., Interserve, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Related document(s) 11 ) (Bloch, David) (Filed on 12/28/2009)

Interserve, Inc. et al v. Fusion Garage PTE. LTD

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WINSTON & STRAWN LLP Andrew P. Bridges (SBN: 122761) David S. Bloch (SBN: 184530) Nicholas Short (SBN: 253922) 101 California Street, Suite 3900 San Francisco, CA 94111-5894 Telephone: [phone] Facsimile: 415-591-1400 Email: [e-mail] [e-mail] [e-mail] Attorney for Plaintiffs INTERSERVE, INC. dba TECHCRUNCH, and CRUNCHPAD, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION INTERSERVE, INC. dba TECHCRUNCH, a ) Delaware corporation, and CRUNCHPAD, ) INC., a Delaware corporation, ) ) Plaintiffs, ) ) vs. ) ) FUSION GARAGE PTE. LTD., a Singapore ) company, ) Defendant. ) ) I, David S. Bloch, declare: 1. I am an attorney at law duly licensed to practice before all of the courts of the State of Case No. C 09 5812 (JW) (PVT) DECLARATION OF DAVID S. BLOCH IN SUPPORT OF PLAINTIFFS' MOTION TO ALLOW DISCOVERY PRIOR TO RULE 26 CONFERENCE ON AN EXPEDITED BASIS [L.R. 6-3(a)]

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California and the District of Columbia, and a member in good standing of the Bar of the United States District Court for the Northern District of California. I am an attorney of record for Interserve, Inc. dba TechCrunch and CrunchPad Inc. (collectively, "TechCrunch"), the plaintiffs in this action. 2. Through this motion, TechCrunch asks the Court to open discovery prior to the Rule

26 conference. If leave is granted, TechCrunch asks that Fusion Garage ("FG") respond to the interrogatories attached as Exhibit A and the requests for production attached as Exhibit B within 30 days of the date of service of this motion and accompanying declaration, i.e., January 27, 2010.
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3.

TechCrunch also will serve subpoenas on PayPal (FG's payment processor for JooJoo

pre-orders) and McGrath Power (FG's PR firm). We do not seek an order requiring these entities to respond on an expedited basis. 4. Prior to filing this motion, my partner Andrew Bridges and I communicated with

counsel for FG to agree to the relief TechCrunch now seeks by motion. As required by Local Rules 1-5 (n) and 6-3 (a)(2), Mr. Bridges and I spoke by telephone to Patrick Doolittle, counsel for FG, on December 28, 2009, following a call between Mr. Bridges and Mr. Doolittle the previous week. Mr. Doolittle informed us that FG would not agree to the requested relief. 5. Exhibit C is a true and correct copy of a December 30, 2008, email exchange. In this

exchange, TechCrunch's Louis Monier engaged in direct communications with FG to help define the user interface, technical specifications, and software details for a working prototype assembled by Mr. Monier's team. FG commented: "This is great news. Good to see the first signs of the baby :)" (emoticon original). 6. Exhibit D is a true and correct copy of a January 19, 2009, TechCrunch blog posting,

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which states in part: "The software has been created by Fusion Garage, who continue to work with Louis on the feature set and user experience." 7. Exhibit E is a true and correct copy of a document that purports to be the Google-

archived version of FG's blog. We believe this to be a true and accurate copy of the text that FG originally posted on its fusiongarage.com blog. FG has since disabled public access to its blog and may have deleted it entirely. The January 19, 2009, entry states in part: "It's our software running on the tablet ... We continue to work with Louis Monier on the feature set and the user experience. We ... would like to take the opportunity to thank Michael [Arrington] and Louis for giving us the opportunity to work with them on the TechCrunch Tablet." A follow-up February 4, 2009, entry states: "the collaboration with the Crunchpad project happened as a result of meetings we had with Mike Arrington and co, subsequent to [TechCrunch50]. We worked closely with Louis Monier in getting the software in shape for the hardware prototype B. We continue to work with them in getting the software in shape to make crunchpad an easy to use device." 8. Exhibit F is a true and correct copy of an April 10, 2009, TechCrunch blog post
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stating: "we've continued to tinker with the project ... We did meet with Fusion Garage today to test out the most recent prototype (B.5)? ... The software stack is now entirely customized. ... This time the ID and hardware work was driven by Fusion Garage out of Singapore. ... All credit should go to Fusion Garage ... you need partners to actually make things happen, and the credit for what we saw today goes entirely to the Fusion Garage team. Those guys are rock stars." This is one of several documents evidencing that the parties worked in close collaboration, including joint work at TechCrunch's California headquarters, where FG's CEO, Chandrasekar Rathakrishnan, and software team relocated for several months. 9. On information and belief, Exhibit G is a true and correct copy of Mr.

Rathakrishnan's Twitter feed, printed from twitter.com. Mr. Rathakrishnan broadcast the following statement by Twitter on May 25, 2009: "just leaving techcrunch office, last to leave today and its memorial day." On June 3, he wrote: "CrunchPad Update, the launch prototype, we are excited working on this." 10. Exhibit H is a true and correct copy of a June 3, 2009, TechCrunch blog post, which

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praises FG and describe their ongoing collaboration, stating in part: "Our partner Fusion Garage continues to drive the software forward ... Our vision of the user interface and the last version of the software stack ... The device boots directly into the browser." 11. Exhibit I is a true and correct copy of a June 2, 2009, email string between FG and

TechCrunch, which evidences that FG and TechCrunch each were active participants in marketing and other business decisions. In part of this string, Mr. Rathakrishnan wrote: "my suggestion is that we do a post, update new device pictures and at the same time announce that we will be having a press conference in july to unveil the device, do a demo etc." 12. Exhibit J is a true and correct copy of a June 27, 2009, email string from Mr.

Rathakrishnan confirming FG's agreement for FG to merge into CrunchPad Inc. in exchange for 35% of the merged company's stock. 13. Exhibit K is a true and correct copy of an August 31, 2009, email string from Mr.

Rathakrishnan, following multi-week visits to Asia by TechCrunch senior technologists Brian Kindle (hardware) and Nik Cubrilovic (software), who worked with Defendant on software, design,
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and user interface issues and the parties' jointly-selected original design manufacturer, Pegatron, on hardware and pricing. The email reveals significant friction during this period, and TechCrunch seriously considered ending the joint venture. In response, Mr. Rathakrishnan begged TechCrunch to continue working together and promised to fly his entire team to the Bay Area to drive the CrunchPad to completion: "Pls do not kill the project as yet. Pls hold off a week. ... I know how to deal with Pegatron and some of the challenges that we are currently facing. We can overcome these challenges. ... If we decide to move forward and get the product launched at TC50 or separate press event, then I will have my team to back me and get the product where it needs to be. ... So [a] team of guys will fly with me." 14. Relying on these representations, TechCrunch sponsored business visas for four of

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the Indian nationals on the team, and starting in September FG and TechCrunch personnel worked together in TechCrunch's offices to get the CrunchPad ready for launch. As late as November 13, 2009, all seemed well, with Mr. Rathakrishnan confirming that "we shd target the [November 20] event in sf" for the CrunchPad's public debut. Exhibit L is a true and correct copy of this email string from Mr. Rathakrishnan. 15. But then, on November 17­in an email that it concedes "came out of the blue"­FG

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abruptly aborted the project, asserting that it owned all associated IP rights and would manufacture and market the CrunchPad product on its own. Exhibit M is a true and correct copy of the November 18, 2009, email string from Mr. Rathakrishnan, which incorporates his November 17 message. 16. Exhibit N is a true and correct copy of a letter received from Pegatron purporting to

terminate Pegatron's relationship with FG as of October 2009. TechCrunch did not receive a copy of this letter or learn of its contents until December 2009. 17. Exhibit O is a true and correct copy of an email string from Mr. Rathakrishnan

purporting to attach FG's "capitalization table" in spreadsheet form. According to that capitalization table, one FG investor ("Raffles") lent FG $100,000 Singapore dollars at an interest rate of 1.65% per month (19.8% annualized), and another ("Wilfred") lent FG $100,000 Singapore dollars at an interest rate of 7% per month.
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I declare under penalty of perjury that the foregoing is true and correct. Dated: December 28, 2009 /s/ David S. Bloch David S. Bloch

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