Leader Technologies, Inc., v. Facebook, Inc.

Filing 12

AFFIDAVIT in Opposition re 1 MOTION to Quash Deposition Subpoenas of Nonparties Karel Baloun, Stephen Dawson-Haggerty and Thyagaraja S. Ramakrishnan and for Protective Order and Request for a Contempt Order filed byLeader Technologies, Inc.,. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Andre, Paul) (Filed on 2/12/2010)

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EXHIBIT 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LEADER TECHNOLOGIES, INC., a Delaware corporation, Plaintiff-Counterdefendant, v. FACEBOOK, INC., a Delaware corporation, Defendant-Counterclaimant. Civil Action No. 08-862-JJF/LPS NON-PARTY KAREL BALOUN'S OBJECTIONS AND RESPONSES TO PLAINTIFF LEADER TECHNOLOGIES, INC.'S NOTICE OF DEPOSITION AND SUBPOENA Pursuant to Federal Rules of Civil Procedure 30 and 45, non-party KAREL BALOUN ("Mr. Baloun") hereby submits the following objections and responses to LEADER TECHNOLOGIES, INC.'s ("Leader") Notice of Deposition and Subpoena. I. PRELIMINARY STATEMENT. The specific responses set forth below are for the purposes of discovery only. A. Mr. Baloun's investigation and search for documents and things responsive to the requests are ongoing. Pursuant to Fed. R. Civ. P. 26(e), Mr. Baloun specifically reserves the right to supplement and amend these responses and, if necessary, to assert additional objections arising from further investigation. B. Mr. Baloun's response to a particular request shall not be interpreted as implying that responsive documents and things exist or that Mr. Baloun acknowledges the appropriateness of the request. C. The following responses are based on information reasonably available to Mr. Baloun as of the date of this response. Mr. Baloun's investigation is continuing and ongoing and Mr. Baloun expressly reserves the right to revise and/or supplement his responses. 1 II. GENERAL OBJECTIONS. The following General Objections apply to each request and are hereby incorporated by reference into the individual response to each request, and shall have the same force and effect as if fully set forth in the individual response to each request. 1. Mr. Baloun objects to the time and to the location specified in the Notice of Deposition and Subpoena. Mr. Baloun will appear for a deposition, if at all, at a time and place to be agreed upon. 2. Mr. Baloun objects to Plaintiff's "Instructions" to the extent they seek to impose obligations beyond those permitted by the Federal Rules of Civil Procedure, the Local Rules of Court, or other applicable law. 3. Mr. Baloun objects to each request for documents to the extent it seeks information protected by the attorney-client privilege, the attorney work-product doctrine, and/or any other applicable privilege or immunity. 4. Mr. Baloun objects to each request for documents to the extent it is phrased in a manner that would render it overly broad, vague or ambiguous, or would require subjective judgment or speculation on the part of Mr. Baloun. Mr. Baloun responds to these requests by construing them in light of the scope of the issues in this action. 5. Mr. Baloun objects to each request for documents to the extent it seeks to elicit information that is subject to a right of privacy under the relevant provisions of federal and state law. 6. Mr. Baloun objects to each request for documents to the extent it seeks to elicit third-party confidential information. 7. Mr. Baloun objects to each request for documents to the extent it purports to place an obligation on Mr. Baloun to obtain information that is as readily available to Plaintiff as it is to Mr. Baloun. 8. Mr. Baloun objects to each request for documents to the extent it calls for information not in the possession, custody or control of Mr. Baloun. 2. 9. Mr. Baloun objects to each request for documents to the extent it is not properly limited in time. III. OBJECTIONS TO DEFINITIONS. 1. Mr. Baloun objects to Plaintiff's definition of "Facebook," and "Defendant" as overly broad and vague and ambiguous, due at least to Plaintiff's inconsistent usage of the term throughout its document requests. 2. Mr. Baloun objects to Plaintiff's definition of "'761 Patent" and "Patent-in-Suit" Mr. Baloun shall construe the terms to mean United States Patent No. as overly broad. 7,139,761, entitled "Dynamic Association of Electronically Stored Information with Iterative Workflow Changes." 3. Mr. Baloun objects to Plaintiff's definition of "document" to the extent it seeks to define that term more broadly than allowed under the Federal Rules of Civil Procedure and/or the Federal Rules of Evidence. Mr. Baloun shall construe the term in a manner consistent with said Rules. IV. SPECIFIC OBJECTIONS AND RESPONSES. DOCUMENT REQUEST NO. 1: Any and all documents relating to your involvement in the development of Facebook. RESPONSE TO DOCUMENT REQUEST NO. 1: Mr. Baloun incorporates each of his General Objections herein by reference. Mr. Baloun further objects to this request as overly broad and unduly burdensome, the burden of production vastly outweighing the nominal probative value responsive documents might have. Mr. Baloun further objects to this request as overly broad in that it is not reasonably calculated to lead to admissible evidence. Mr. Baloun further objects to the term "involvement" as vague and ambiguous. Mr. Baloun further objects to the request's use of the term "Facebook" as vague and ambiguous, particularly as "Facebook" has been defined by Plaintiff in such a way as to make 3. this request unintelligible. Mr. Baloun further objects to the extent this request asks for documents outside of his possession, custody or control. Mr. Baloun further objects to this request to the extent that it seeks documents protected from disclosure by the attorney-client privilege, the attorney work-product doctrine and/or other applicable privileges or immunities. DOCUMENT REQUEST NO. 2: Any and all documents relating to Mark Zuckerberg's involvement in the development Facebook. RESPONSE TO DOCUMENT REQUEST NO. 2: Mr. Baloun incorporates each of his General Objections herein by reference. Mr. Baloun further objects to this request as overly broad and unduly burdensome, the burden of production vastly outweighing the nominal probative value responsive documents might have. Mr. Baloun further objects to this request as overly broad in that it is not reasonably calculated to lead to admissible evidence. Mr. Baloun further objects to this request on the ground that it is unintelligible as to the phrase "development Facebook." Mr. Baloun further objects to the term "involvement" as vague and ambiguous. Mr. Baloun further objects to the request's use of the term "Facebook" as vague and ambiguous, particularly as "Facebook" has been defined by Plaintiff in such a way as to make this request unintelligible. Mr. Baloun further objects to the extent this request asks for documents outside of his possession, custody or control. Mr. Baloun further objects to this request to the extent that it seeks documents protected from disclosure by the attorney-client privilege, the attorney work-product doctrine and/or other applicable privileges or immunities. 4. DOCUMENT REQUEST NO. 3: Any and all documents relating to any business relationship between you and Mark Zuckerberg and/or Facebook. RESPONSE TO DOCUMENT REQUEST NO. 3: Mr. Baloun incorporates each of his General Objections herein by reference. Mr. Baloun further objects to this request as overly broad and unduly burdensome, the burden of production vastly outweighing the nominal probative value responsive documents might have. Mr. Baloun further objects to this Request on the ground that it is unintelligible, and vague and ambiguous as to which persons or entities are potentially parties to any "business relationship." Mr. Baloun further objects to the term "business relationship" as vague and ambiguous. Mr. Baloun further objects to the extent this request asks for documents outside of his possession, custody or control. Mr. Baloun further objects to this request as overly broad in that it is not reasonably calculated to lead to admissible evidence, as this request, to the extent Mr. Baloun is capable of interpreting its language, seeks documents that are neither relevant nor likely to lead to the discovery of admissible evidence as the subject of the request has no bearing on any issue in this action. Mr. Baloun further objects to this request to the extent that it seeks documents protected from disclosure by the attorney-client privilege, the attorney work-product doctrine and/or other applicable privileges or immunities. DOCUMENT REQUEST NO. 4: Any and all communication between you and Mark Zuckerberg concerning the development of Facebook. 5. RESPONSE TO DOCUMENT REQUEST NO. 4: Mr. Baloun incorporates each of his General Objections herein by reference. Mr. Baloun further objects to this request as overly broad and unduly burdensome, the burden of production vastly outweighing the nominal probative value responsive documents might have. Mr. Baloun further objects to this request as overly broad in that it is not reasonably calculated to lead to admissible evidence. Mr. Baloun further objects to the request's use of the term "Facebook" as vague and ambiguous, particularly as "Facebook" has been defined by Plaintiff in such a way as to make this request unintelligible. Mr. Baloun further objects to the extent this request asks for documents outside of his possession, custody or control. Mr. Baloun further objects to this request to the extent that it seeks documents protected from disclosure by the attorney-client privilege, the attorney work-product doctrine and/or other applicable privileges or immunities. DOCUMENT REQUEST NO. 5: Any and all communication describing the Facebook source code and platform. RESPONSE TO DOCUMENT REQUEST NO. 5: Mr. Baloun incorporates each of his General Objections herein by reference. Mr. Baloun further objects to this request as overly broad and unduly burdensome, the burden of production vastly outweighing the nominal probative value responsive documents might have. Mr. Baloun further objects to this request as overly broad in that it is not reasonably calculated to lead to admissible evidence. Mr. Baloun further objects to the request's use of the term "Facebook" as vague and ambiguous, particularly as "Facebook" has been defined by Plaintiff in such a way as to make this request unintelligible. Mr. Baloun further objects to the extent this request asks for documents outside of his possession, custody or control. Mr. Baloun further objects to this 6. request to the extent that it seeks documents protected from disclosure by the attorney-client privilege, the attorney work-product doctrine and/or other applicable privileges or immunities. DOCUMENT REQUEST NO. 6: All source code relating to Facebook. RESPONSE TO DOCUMENT REQUEST NO. 6: Mr. Baloun incorporates each of his General Objections herein by reference. Mr. Baloun further objects to this request as overly broad and unduly burdensome, the burden of production vastly outweighing the nominal probative value responsive documents might have. Mr. Baloun further objects to this request as overly broad in that it is not reasonably calculated to lead to admissible evidence. Mr. Baloun further objects to the request's use of the term "relating to" as vague, ambiguous and unintelligible. Mr. Baloun further objects to the request's use of the term "Facebook" as vague and ambiguous, particularly as "Facebook" has been defined by Plaintiff in such a way as to make this request unintelligible. Mr. Baloun further objects to the extent this request asks for documents outside of his possession, custody or control. Mr. Baloun further objects to this request to the extent that it seeks documents protected from disclosure by the attorney-client privilege, the attorney work-product doctrine and/or other applicable privileges or immunities. DOCUMENT REQUEST NO. 7: Any and all documents relating to the origins and/or development of Facebook. RESPONSE TO DOCUMENT REQUEST NO. 7: Mr. Baloun incorporates each of his General Objections herein by reference. Mr. Baloun further objects to this request as overly broad and unduly burdensome, the burden of production vastly outweighing the nominal probative value responsive documents might have. Mr. Baloun 7. further objects to this request as overly broad in that it is not reasonably calculated to lead to admissible evidence. Mr. Baloun further objects to the request's use of the term "Facebook" as vague and ambiguous, particularly as "Facebook" has been defined by Plaintiff in such a way as to make this request unintelligible. Mr. Baloun further objects to the term "origins" as vague and ambiguous. Mr. Baloun further objects to this request to the extent that it seeks documents protected from disclosure by the attorney-client privilege, the attorney work-product doctrine and/or other applicable privileges or immunities. Mr. Baloun further objects to the extent this request asks for documents outside of his possession, custody or control. REQUEST NO. 8: Any and all documents relating to Leader, Michael McKibben, and/or the `761 patent. RESPONSE TO REQUEST NO. 8: Mr. Baloun incorporates each of his General Objections herein by reference. Mr. Baloun further objects to this request to the extent that it seeks documents protected from disclosure by the attorney-client privilege, the attorney work-product doctrine and/or other applicable privileges or immunities. Mr. Baloun further objects to the extent this request asks for documents outside of his possession, custody or control. Subject to and without waiving his /// /// /// /// /// /// /// 8. objections, Mr. Baloun responds that, after a reasonable search, he has not located nonprivileged, responsive documents that were created prior to the filing of the Complaint in this action. Dated: January 22, 2010 By: /s/ Elizabeth L. Stemeshkin Heidi L. Keefe (pro hac vice) Mark R. Weinstein (pro hac vice) Jeffrey Norberg (pro hac vice) Melissa H. Keyes (pro hac vice) Elizabeth L. Stameshkin (pro hac vice) COOLEY GODWARD KRONISH LLP 3000 El Camino Real 5 Palo Alto Square Palo Alto, CA 94306 Attorneys for Non-Party Karel Baloun 1159931/SF 9.

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