Facebook, Inc. v. Fisher et al

Filing 57

MOTION Administrative Request for Order Directing Release of Computer filed by Facebook, Inc.. (Attachments: # 1 Proposed Order)(McCullagh, James) (Filed on 6/28/2010)

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Brian Hennessy, State Bar No. 226721 [e-mail] PERKINS COIE LLP 101 Jefferson Drive Menlo Park, California 94025 Telephone: [phone] Facsimile: 650.838.4350 James McCullagh, pro hac vice [e-mail] Joseph Cutler, pro hac vice [e-mail] PERKINS COIE LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101 Telephone: [phone] Facsimile: 206.359.9000 Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., a Delaware corporation, Plaintiff, v. JEREMI FISHER; PHILIP POREMBSKI; RYAN SHIMEALL; and JOHN DOES 125, individuals; and CHOKO SYSTEMS LLC; HARM, INC.; PP WEB SERVICES LLC; iMEDIA ONLINE SERVICES LLC; and JOHN DOES 26-50, corporations, Defendants.

Case No. C-09-05842-JF PLAINTIFF FACEBOOK INC.'S ADMINISTRATIVE REQUEST FOR ORDER DIRECTING RELEASE OF COMPUTER

60406-0005/LEGAL18627981.1

Administrative Request Pursuant to Local Rule 7-11 for Leave To Conduct Discovery Prior to Rule 26 Conference Case No. C-09-05842-JF

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Pursuant to Local Rule 7-11, Facebook, Inc. ("Facebook") seeks an order directing the Sacramento County Sheriff's Department to release the computer described in Sacramento County Sheriff's Department Report No. NE 2010-0093641 ("Subject Computer") to Facebook for the purposes of engaging an independent third party to make a mirror image of the Subject Computer's hard drive and to delivery that mirror image to Facebook. After such imaging, Facebook shall return the Subject Computer to the Sacramento County Sheriff Department. MEMORANDUM IN SUPPORT OF ADMINISTRATIVE REQUEST I. BACKGROUND

On June 14, 2010, this Court entered an Order Granting Plaintiff Facebook's Administrative Request for Leave to Conduct Discovery Prior to Rule 26 Conference. Electronic Docket Entry ("DE") No. 56. The Court issued the Order pursuant to Plaintiff Facebook's Administrative Request Pursuant to Local Rule 7-11 for Leave to Conduct Discovery Prior to Rule 26 Conference and the Declaration of Joseph P. Cutler in support thereof. DE 53, 54. The Order included the following: [P]laintiff Facebook has shown good cause to conduct discovery prior to the Rule 26 conference. The need for the expedited discovery outweighs any prejudice to defendants.... Finally, plaintiff Facebook served this motion on all defendants and no response has been filed whatsoever. Pursuant to Rules 34 and 45, plaintiff Facebook may engage an independent third party to make a mirror image of the hard drive of the laptop computer (either on-site a the Sacramento Sheriff's Department or at the offices of the independent third party) and promptly return the original laptop computer to the custody of the Sacramento Sheriff's Department. DE 56 at 2. The Order also allowed Facebook to issue a subpoena for police reports and witness statements related to the recover of the Subject Computer and to conduct a deposition of the witness who located the Subject Computer. Id.
Administrative Request Pursuant to Local Rule 7-11 for Leave To Conduct Discovery Prior to Rule 26 Conference Case No. C-09-05842-JF

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On June 18, 2010, counsel for Facebook served a subpoena including a complete copy of the Order on the Sacramento County Sheriff Department seeking the discovery permitted by the Order. Declaration of Ryan Mrazik in Support of Administrative Request for Order Directing Release of Computer ("Mrazik Decl."), Exhibit A. On that same day, Captain Scott Jones, Legal Advisor and Assistant to the Sheriff, sent an email that objected to the subpoena on the grounds that there was not "proper legal authority" for the Sheriff's office to release the hard drive. Mrazik Decl. Ex. B. After meeting and conferring telephonically and by email, Captain Jones stated that the Sheriff's office simply required an "order for [the Sheriff's Office] to turn [the Subject Computer] over (or a copy) to [Facebook]." Mrazik Decl., Ex. C. Captain Jones also stated that the Sacramento County Sheriff Department Report No. 2010-0093641, which the Sheriff's Office disclosed pursuant to the subpoena, provided sufficient detail as to the facts to enable Facebook to obtain such an order directing release of the Subject Computer's hard drive to Facebook. Id. Sacramento County Sheriff's Department Report No. NE 2010-0093641 describes that the subject tower computer was found discarded next to a dumpster and that it contained (1) viruses that, when sent out, steal Facebook and other user names, passwords, and other types of information and (2) email addresses and other user identifying information linking the Subject Computer to Defendant Philip Porembski. Mrazik Declaration, Exhibit D at 1, 3, 7. II. REQUEST FOR ORDER

Rule 34 states that "[a] party may serve on any other party a request within the scope of Rule 26(b)." Fed. R. Civ. P. 34(a). Rule 26(b) states that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b). Facebook has already received an Order from this Court allowing it to engage an independent third party to make a mirror image of the hard drive of the Subject Computer and to return the computer to the custody of the Sacramento Sheriff's Department. Dkt. No. 53 at 2. The Court Order also permitted the independent third party to provide the mirror image of the computer's hard drive to Facebook. Id. Finally, the Order allowed Facebook
Administrative Request Pursuant to Local Rule 7-11 for Leave To Conduct Discovery Prior to Rule 26 Conference Case No. C-09-05842-JF

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to issue a subpoena for police reports and witness statements related to the recover of the Subject Computer and to conduct a deposition of the witness who located the Subject Computer In an effort to accommodate the Sherrif Department's stated objection to complying with the subpoena issued by Facebook, Facebook now requests that this Court issue an order directing the Sacramento County Sheriff's Department to release the Subject Computer to Facebook for the purposes of engaging an independent third party to make a mirror image of the Subject Computer's hard drive and to deliver the mirror image to Facebook. After such imaging, Facebook shall return the Subject Computer to the custody of the Sacramento County Sheriff Department. CONCLUSION For the reasons set forth above, Facebook respectfully requests that the Court promptly grant this motion for leave for expedited third-party discovery. DATED: June 28, 2010 PERKINS COIE LLP By: /s/ James R. McCullagh Brian Hennessy (SBN 226721) [e-mail] James R. McCullagh (pro hac vice) [e-mail] Joseph Cutler (pro hac vice) [e-mail] Attorneys for Plaintiff Facebook, Inc.

60406-0005/LEGAL18627981.1

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Administrative Request Pursuant to Local Rule 7-11 for Leave To Conduct Discovery Prior to Rule 26 Conference Case No. C-09-05842-JF

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60406-0005/LEGAL18627981.1

CERTIFICATE OF SERVICE I certify that on June 28, 2010, I sent the foregoing ADMINISTRATIVE REQUEST PURSUANT TO LOCAL RULE 7-11 FOR ORDER DIRECTING RELEASE OF COMPUTER, which was filed with the Clerk of the Court using the CM/ECF system, via U.S. Mail and electronic mail to the following Defendants: Jeremi Fisher Choko Systems LLC 35 Jackson Street Akron, New York 14001 [e-mail] Philip Poremsbki Harm Inc. PP Web Services LLC 12155 Tributary Point Drive Apt. 170 Rancho Cordova, California 95670 [e-mail]

Ryan Shimeall iMedia Online Services LLC 10299 Julian Court Westminster, Colorado 80031 [e-mail]

I certify under penalty of perjury that the foregoing is true and correct. DATED this 28th day of June 2010. By: /s/ James R. McCullagh Brian Hennessy (SBN 226721) [e-mail] James R. McCullagh (pro hac vice) [e-mail] Joseph Cutler (pro hac vice) [e-mail] Attorneys for Plaintiff Facebook, Inc.

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Administrative Request Pursuant to Local Rule 7-11 for Leave To Conduct Discovery Prior to Rule 26 Conference Case No. C-09-05842-JF