Leader Technologies Inc. v. Facebook Inc.
Filing
207
Official Transcript of Teleconference held on 12-23-09 before Judge Leonard P. Stark. Court Reporter/Transcriber Heather Triozzi. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/3/2010. Redacted Transcript Deadline set for 2/16/2010. Release of Transcript Restriction set for 4/13/2010. (lad)
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LEADER TECHNOLOGIES,
INC.,
Plaintiff,
v.
FACEBOOK, INC., a
Delaware corporation,
Defendant.
)
)
)
)
) C.A. No. 08-862-JJF-LPS
)
)
)
)
)
)
Wednesday, December 23, 2009
11:00 a.m.
Teleconference
844 King Street
Wilmington, Delaware
BEFORE:
THE HONORABLE LEONARD P. STARK
United States District Court Magistrate
APPEARANCES:
POTTER, ANDERSON & CORROON, LLP
BY: PHILIP A. ROVNER, ESQ.
-andKING & SPAULDING
BY: PAUL ANDRE, ESQ.
Counsel for Plaintiff
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
2
1
APPEARANCES CONTINUED:
2
3
4
BLANK ROME, LLP
BY: STEVEN L. CAPONI, ESQ.
5
-and6
7
COOLEY, GODWARD & KRONISH, LLP
BY: HEIDI L. KEEFE, ESQ.
BY: JEFFREY NORBERG, ESQ.
8
Counsel for Defendant
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
3
1
2
THE COURT:
Good morning, everyone.
This is Judge Stark.
3
Who's there, please?
4
MR. CAPONI:
5
Honor.
6
Good morning, Your
Blank Rome.
7
8
For Facebook, it's Steve Caponi from
And also with me, Heidi Keefe and
Jeff Norberg from Cooley Godward.
9
THE COURT:
Okay.
10
MS. KEEFE:
Good morning, Your
11
Honor.
12
13
14
MR. NORBERG:
Good morning, Your
Honor.
MR. ROVNER:
Your Honor, for the
15
plaintiff, it's Phil Rovner from Potter Anderson,
16
and Paul Andre from King & Spalding.
17
THE COURT:
18
19
Okay.
Good morning to
you all as well.
For the record, this is a
20
teleconference to discuss discovery disputes in
21
the matter of Leader Technologies Inc. versus
22
Facebook, Inc.
23
08-862-JJF-LPS.
24
It's our Civil Action Number
I have a total of four letters today
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
4
1
raising several disputes.
2
practice in the past, I'm going to move through
3
them kind of dispute by dispute.
4
And as has been our
I want to start with Leader's
5
complaints that or Leader's request that Facebook
6
produce the change log document under some
7
protection other than the non-source code
8
designation.
9
And let me start on that issue with
10
Leader.
And let me tell you all, I do agree with
11
Facebook's reading of Paragraph 8 of the
12
protective order, in that I think that paragraph
13
does cover the change log.
14
as a document or other thing that contains a
15
party's source code or the substance thereof.
16
I view the change log
But what I want to hear from Leader
17
is whether you have an argument that, for some
18
reason at this point in the case, I should amend
19
the protective order to require Facebook to
20
produce the change log document under some other
21
designation.
22
23
24
And I'll hear first from Leader on
that point, please.
MR. ANDRE:
Your Honor, this is Paul
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
5
1
Andre.
I'll be arguing for Leader on this issue.
2
The reason we're moving on this
3
particular issue and not -- we don't believe it's
4
source code or substance of source code, because
5
it doesn't consist of source code.
6
The change log itself is nothing
7
more than a general summary of the changes that
8
were made.
9
write source code based on the information in the
I mean, in other words, you could not
10
change log.
11
just bug fixes.
12
And 99 percent of that change log is
In this particular case, there's
13
been more sensitive information that's been
14
produced under the protective order.
15
the kind of technical documents in which you
16
could write source code from.
17
adequate protection in place for source code.
18
You know,
So we have
Now, as far as Your Honor's request
19
as to whether we should amend the source code,
20
under the protective order, we believe that it is
21
unduly burdensome to have us review this document
22
as we would review source code.
23
for that.
24
Several reasons
One is several hundred pages and you
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
6
1
need to read this in context with other technical
2
documents, and in the context with source code of
3
time.
4
because our patent issued in 2006, November 2006,
5
we're alleging that Facebook is infringing since
6
that time.
7
So, and the reason being, of course,
Facebook has only given us one
8
version of the source code itself as of today and
9
would not provide us with versions dating back to
10
2006.
11
the change log is our only basis for showing that
12
the source code as it exists today is
13
substantially the same as it existed in 2006 when
14
their infringement began.
15
So the source code is our only -- I mean,
So as is given, source code
16
protection would be prejudicial to Leader because
17
the current version of the protective order
18
allows Facebook to actually log all of our visits
19
to the source code.
20
a number of attorneys that can see the source
21
code.
22
They allow a restriction to
And also, it is something -- they
23
have an observer in the room with it and that's
24
observing source code.
So it is something that
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
7
1
would be extremely prejudicial if we cannot go in
2
this and look at it from a point of view of
3
comparing the change log with the patent with
4
technical documents and the source code itself
5
when the time calls for that.
6
The argument for changing the
7
protective order, as Your Honor requested, is
8
unduly burdensome and prejudicial to Leader and
9
requires us to treat this as source code.
10
11
THE COURT:
All right.
Let me hear
a response, please, from Facebook.
12
MS. KEEFE:
Thank you, Your Honor.
13
Your Honor, this is the same level just like
14
everyone said in both letters.
15
The things that we're talking about,
16
this log actually does contain the substance of
17
source code, describes the source code that's
18
being modified and the reasons there for highly
19
sensitive documents.
20
Mr. Andre made an interesting
21
comment.
22
version of the source code.
23
not true.
24
He said that we've only produced one
That's absolutely
On November 20th, per Leader's
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
8
1
request, Facebook produced an entire subversion
2
database, which includes full copies of the code
3
as it existed over time.
4
to look at it, but it's been on the stand-alone
5
computer.
6
They've never been able
It was referenced in our discovery
7
responses served December 20th.
8
for them to review.
9
So it is here
Regarding their comment that it's
10
unduly burdensome because they can't review it in
11
the context of everything else they need, the
12
stand-alone computer that has these logs on it
13
also contains a subversion database with all of
14
the versions going back as well as the code
15
itself and technical documents.
16
If there's other things that they
17
need in order to be able to do these all in one
18
place, you know, I'm sure that we can work on
19
accommodating them, because we have the
20
production, you know, materials here.
21
Similarly, if they need more
22
attorneys or want to have times when, you know,
23
someone's not in the room, the person in the room
24
is only to make sure that there's no copying.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
9
1
But I'm sure we can work on something like that.
2
But nothing changes the
3
overwhelmingly confidential secret nature of
4
these materials and our need to make sure that
5
there's no inadvertent disclosure.
6
what the protective order was meant for,
7
stipulated and agreed to.
8
So thank you very much.
9
THE COURT:
And that's
And just address the
10
suggestion that you've produced even more
11
sensitive documents, some type of technical
12
documents under E designation that's not as
13
protective as source code protection, Ms. Keefe.
14
15
16
MS. KEEFE:
understand the question.
THE COURT:
I'm not sure I
I'm sorry, Your Honor.
Well, as I understand
17
it, you've produced technical documents that
18
relate to the source code, and those are for
19
basically attorneys' eyes only.
20
understand it, Leader has been allowed to take
21
copies of those back to its own, you know,
22
counsel's facility.
23
24
But as I
They're not required just to review
them on a stand-alone computer.
So the
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
10
1
suggestion, as I understand it, is that there are
2
things that you've already produced at a lower
3
level of designation that are nonetheless more
4
commercially sensitive to you and that that is
5
somehow inconsistent.
6
MS. KEEFE:
It's absolutely not
7
inconsistent.
The material that we've allowed
8
them to take back to their offices with them are
9
redacted so that those portions that actually
10
relate to the source code or contain the source
11
code itself have been redacted.
12
The materials that they have are
13
things that talk at a much higher level about
14
certain projects or something of that nature.
15
They don't talk specifically about the code and
16
what's being changed in the code.
17
I think Your Honor can easily
18
understand that sometimes it's the changes to the
19
code that are the most sensitive things.
20
know, you don't want the public necessarily
21
knowing about a bug set or something that is
22
buggy or what it took to fix it.
23
the R & D that goes into figuring out what the
24
problems are and what the fixes are is as
You
And sometimes
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
11
1
sensitive, if not more sensitive, than the code
2
itself.
3
And so direct to Your Honor's point,
4
the only material that they have been able to
5
take back to their offices are less sensitive
6
than that.
7
those documents actually have been redacted.
8
9
And the most sensitive portions of
THE COURT:
Okay.
Mr. Andre,
anything you want to say in response?
10
MR. ANDRE:
Just Your Honor, we
11
don't think that the change log has any sensitive
12
information you could actually derive source code
13
from.
14
what's been changed.
And this is a simple one-sentence summary
15
The second, technical documents that
16
have been produced to us, if someone were to have
17
those technical documents, you could actually
18
write source code pursuant to those technical
19
documents.
20
They give you that level of detail.
These are mere summaries of what's
21
going on.
If you look at the three categories of
22
information, the date, the name, the file, and
23
the engineer who did the work, those are not
24
sensitive at all.
So it's the one-sentence
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
12
1
summary or maybe two sentences at the time or
2
maybe it's just a single sentence written in
3
plain English, no source code.
4
doesn't have any source code at all in it.
Okay.
The change log
5
THE COURT:
Thank you.
6
On this request from Leader, I'm
7
going to deny Leader's request.
As I indicated
8
from the start of the discussion, I agree with
9
Facebook's reading of Paragraph 8 of the
10
protective order.
11
highly confidential source code material anything
12
that contained source code or the substance
13
thereof.
14
The agreement was to treat as
And I am persuaded by Facebook that
15
the change log, given that it is a summary, a
16
description of the changes to the source code,
17
that it does contain either source code or the
18
substance thereof.
19
I don't, at this point, see any need
20
to amend the protective order.
I think that the
21
burden that has been noted by Mr. Andre was
22
essentially anticipated and agreed upon by the
23
parties as the process for dealing with this
24
highly sensitive information.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
13
1
I do also note, however, that
2
Ms. Keefe has represented that her client is
3
willing to consider making reasonable
4
accommodations sufficient such as perhaps asking
5
the individuals from Facebook to leave the room
6
at times or to make other materials available
7
within that room.
8
9
So as to ease some of the burden on
Leader as it's reviewing these materials, and I
10
certainly encourage the parties to work to try to
11
make any reasonable accommodations like that
12
which I think would be entirely consistent with
13
the spirit of the protective order, but for the
14
reasons I've given, I'm denying the request for
15
any additional relief that Leader has made.
16
Let's move on now to the issues
17
Facebook's raising in their letters.
18
going to break down those issues into three
19
parts.
20
And I'm
And the first issue, the first part
21
goes to these third-party communications.
22
communications between Leader and other parties
23
in connection with Leader's efforts to raise
24
funds, either for an investment in the litigation
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
The
19801
14
1
or an investment in itself.
2
issues or a number of the requests for production
3
that Facebook has put at issue today relate to
4
this general topic of third-party communication.
5
But a number of the
And I want to see if we can handle
6
all of the third-party communication issues
7
together.
8
will hear from you first on this category of
9
issues, please.
10
And Facebook, as the moving party, I
MS. KEEFE:
Thank you, Your Honor.
11
And we agree that that's a good way to break
12
these down, because I think that many of our
13
requests, including responses to the
14
interrogatories and document request and some
15
concerns we had about the privilege log all lump
16
into the same thing.
17
If I could, just very quickly, step
18
back to kind of explain how we got here.
19
2007, Leader began a campaign to solicit funding
20
for the anticipated patent litigation or for the
21
company and recreated a wealth of materials,
22
basically marketing materials that it would use
23
to try to gain, you know, commercial investments
24
in the company or in this litigation.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
Back in
19801
15
1
Sent those documents to upwards of
2
20 different third parties soliciting these
3
funds.
4
that these documents would hopefully never make
5
their way to Facebook by marking them
6
confidential and privileged, even though they
7
were all being disclosed to third parties.
8
that's kind of how we got to where we are.
9
They also started a campaign to make sure
So
A result of this long privilege log,
10
Your Honor, we think that the Corning case is
11
directly on point, and that here in Delaware the
12
Court has acknowledged that there is no common
13
interest privilege.
14
attorney client or work product issue.
15
There's definitely no
But there's further no common
16
interest privilege in documents that are given to
17
third parties for the purpose of soliciting
18
investment, whether it be in a litigation or in
19
the company itself.
20
received from third parties show both that it was
21
in litigation or in the company itself.
22
And the documents that we've
This issue is actually well resolved
23
enough that after reading Leader's letter, I
24
actually went on line and did just a little more
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
16
1
research to make sure there wasn't some
2
distinction drawn by Courts between financing the
3
litigation and financing of a company.
4
ABA actually has an ethics opinion, Formal
5
Opinion 00419, which cites to the notion that the
6
question is very common about what a lawyer can
7
refer to his client regarding litigation
8
financing companies.
And the
9
And the opinion goes on to say that,
10
in fact, lawyers should advise their clients that
11
whatever materials are given to these litigation
12
financing companies may actually waive the
13
privilege.
14
Circuit that have their own formal opinions
15
saying exactly that.
16
and Pennsylvania.
17
And there's two things in the Third
And that's both New Jersey
And Delaware does not have an
18
opinion, an ethics opinion that I could find, but
19
Delaware has the Corning case that says exactly
20
the same thing.
21
We think that all of these
22
third-party communications are relevant and that
23
there is no common interest privilege, and
24
therefore, they should be produced.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
17
1
THE COURT:
Do I need to consider at
2
this point from your perspective whether these
3
documents would be admissible?
4
is it that they would be admissible at trial?
5
MS. KEEFE:
And if I do, how
I think Your Honor
6
absolutely does not have to decide at this point
7
whether or not they would be admissible.
8
standard is whether or not they are discoverable,
9
not whether they are admissible.
10
The
And, in fact, they absolutely are
11
discoverable.
12
contemplates, a document that may lead to the
13
discovery of admissible evidence.
14
They are exactly what discovery
They're definitely -- they
15
absolutely are relevant.
You can see just from
16
examples of Exhibits 1 and 2 that we attached to
17
our letter how highly relevant these documents
18
are.
19
president of the plaintiff's company thinks about
20
the time line of his own invention, the validity
21
of his own patent, whether or not it's obvious
22
over prior art that he himself has found and
23
used, you know, to give him an idea of what to
24
patent.
They go directly to what the inventor, the
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
18
1
If Your Honor wanted to go farther
2
than that, I actually do think that these
3
documents would be admissible as admissions of
4
party opponents.
5
regarding his own invention would, in fact, be
6
admissible once we got to that stage.
7
An admission by the inventor
But I truly do not believe that that
8
is the relevant question at this point.
9
question is simply whether or not they're
10
discoverable.
11
The
And they are.
THE COURT:
Has Leader at this point
12
provided you the non-disclosure agreements that
13
we discussed in a previous call?
14
15
16
MS. KEEFE:
Yes.
They absolutely
have.
And in fact, the provision of those
17
non-disclosure agreements led us to most of these
18
documents that were never produced by Leader.
19
Once we received all those NDAs, we actually sent
20
subpoenas out to these third parties that we had
21
never known about or heard of before.
22
And it was through these third
23
parties that we started receiving through some, I
24
should say, of these third parties that we
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
19
1
started receiving these documents, saw how
2
relevant they were.
3
either reached out to Leader or Leader reached
4
out to them.
5
6
And some of the parties
I'm not sure which.
That doesn't matter.
But then
became represented by King & Spaulding.
7
And it is in connection with those
8
parties that we are receiving privilege logs
9
claiming a joint interest, or a common defense or
10
some kind of privilege like that.
11
what, you know, brings us to Your Honor.
12
THE COURT:
And that's
If it were the case that
13
Leader was clearly raising or, you know, engaged
14
in these communications clearly just to obtain
15
financing to support this litigation, and if it
16
were the case that Leader took all reasonable
17
steps to keep the contents of those
18
communications confidential as between itself and
19
the parties to whom it was having these
20
communications with, your view, Ms. Keefe, is
21
nonetheless, there is no possibility that any of
22
those communications are protected and
23
privileged, you know, and protected from
24
discovery?
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
20
1
MS. KEEFE:
That is my position,
2
Your Honor.
3
joint interest, or common joint defense or common
4
interest privilege only arises if you look at the
5
Corning case.
6
legal interests of the two parties are identical,
7
and that they have the exact same legal interests
8
that they're protecting.
9
10
11
And it's my position, because the
Absolutely only arises when the
They must be identical, not similar.
And be legal, not fully commercial.
When a particular plaintiff or
12
defendant approaches a litigation funding
13
company, it's no different from a company
14
approaching a potential purchaser of stock.
15
investor at that time has to take it upon
16
themselves at an arm's length transaction to
17
determine whether or not this potential
18
investment will make them money.
19
The
And so they're going to be at arm's
20
length from each other.
In fact, if anything,
21
their legal interests are diametrically opposed
22
in the beginning with the plaintiff saying,
23
Here's why my case is so perfect and why you
24
should invest in it, because of how much money
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
21
1
you are going to make.
2
investor trying to rip the case apart to make
3
sure that this is, in fact, a valid investment
4
and a good place for them to put their money.
5
And the potential
And so, their legal interests are
6
absolutely not aligned.
In fact, in the
7
beginning, they're absolutely opposite each
8
other.
9
And so, I don't believe there can be
10
any joint interests or common interests in these,
11
and therefore, there is no protection.
12
THE COURT:
But at a high level,
13
what is happening in those communications is the
14
parties are exploring whether or not the
15
litigation is sufficiently valuable that they
16
want to both partner in some way in hopes, I
17
guess, that they'll make money from it.
18
At that level, aren't their
19
interests at least substantially aligned, that
20
is, they both are hoping to reach the same
21
conclusion that we should work together and
22
invest money in this because we think we'll get
23
more money back in the end?
24
MS. KEEFE:
I actually again
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
22
1
disagree, Your Honor.
2
necessarily both hoping that this is going to
3
work.
4
I think that they're not
The person who's asking for the
5
investment is absolutely saying I hope this
6
works.
7
has to make a very independent assessment of
8
whether or not this is a good idea.
9
The person who's being asked to invest
And at that point, their interests
10
legally are divergent.
11
money for the investment.
12
determine whether or not this is a good idea.
13
The plaintiff wanting the
Investor trying to
If it is taken to the logical
14
extreme, you could actually argue then that all
15
marketing documents seeking funding for a company
16
buying stock that a lawyer was ever involved in
17
in any way would be privileged because eventually
18
you go high enough up the chain, you're just
19
trying to get people to invest so that something
20
can go forward.
21
bit far, but that's the logical extreme of kind
22
of the way we're arguing.
And I know that's taking it a
23
In this particular case, we know
24
that Leader is trying to explain why it has a
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
23
1
good case and that the third parties are trying
2
to understand whether or not they want to invest.
3
Their interests are not aligned at that point.
4
They need to make certain whether or
5
not they could be aligned in the future.
6
think perhaps the question would be slightly
7
different after a decision was made to invest,
8
and that's what the joint defense is all about.
9
So I
When you look at people who have
10
decided we do have the same interest, we
11
absolutely are aligned and we both want this
12
patent to be invalidated as a defendant or we
13
both, you know, need to sue on this patent.
14
But that's after the decision is
15
made to come together, to ask in concert.
16
the communications with potential investors have
17
nothing to do with acting in concert.
18
trying to determine whether or not they will ever
19
make an investment and they're opposite each
20
other.
21
THE COURT:
All of
They're
But at a practical
22
level, and maybe you'll say this is irrelevant,
23
but at a practical level, how could somebody
24
entice someone else to invest if they can't
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
24
1
disclose to them the materials that would allow
2
the potential investor to make that evaluation?
3
Because taking your position to a
4
logical conclusion, nobody can disclose any of
5
the substance without pretty much guaranteeing
6
that it's all going to be revealed in the ensuing
7
litigation.
8
MS. KEEFE:
Your Honor, that's --
9
Your Honor is absolutely correct, but I will tell
10
Your Honor that I've been involved and Mr. Caponi
11
has been involved in counseling companies before
12
mergers in an M & A deal where there's a
13
litigation ongoing.
14
find out, you know, the company trying to
15
acquire -- the company that's involved in
16
litigation wants to know what are the chances of
17
victory?
18
happening?
19
We've done the research to
How is the case going?
What's
And what we have done is we've said,
20
We can't provide you with the documents because
21
those documents will be waived once they're
22
disclosed to a third party.
23
will sit down and talk with you about it, but
24
that's all we can do.
If you'd like, we
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
25
1
And in fact, some of the documents
2
produced in this case indicated that Andrews
3
Kurth was worried.
4
firm that Leader was using before they hired King
5
& Spaulding.
Andrews Kurth was the law
6
Andrews Kurth actually sent an email
7
to one of the potentials and says, Let's just sit
8
down and talk about this, you know, together in
9
the same room so that we don't have to worry
10
about documents being disclosed.
11
So this issue was acknowledged by
12
one of the lawyers as being a possible problem.
13
And in order to combat it, they decided to sit
14
down and have a meeting where there wouldn't be
15
written materials that wouldn't be disclosed,
16
that would then have to be produced.
17
THE COURT:
But in your view, the
18
substance of that sit down communication is also
19
discoverable.
20
only way you'll get it is through depositions.
I guess, at a practical level, the
21
MS. KEEFE:
22
THE COURT: But it is discoverable;
23
24
Absolutely.
correct, in your view?
MS. KEEFE:
Yes.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
26
1
2
THE COURT:
Let me hear from
Mr. Andre on these points, please.
3
MR. ANDRE:
First, Your Honor, with
4
the common interests, these financing companies
5
are very particular in their business nature.
6
They are there to finance litigation.
7
This is not an investment in the
8
company.
This is not investing as an M & A deal
9
as Ms. Keefe is talking about.
10
This is solely towards investing in
11
litigation.
12
in the legal proceedings, and disclosures that
13
are made between the parties are made to
14
facilitate the rendition of legal services.
So
15
this is not solely a commercial enterprise.
This
16
is about a common legal interest.
17
These companies have a best interest
Every effort was made by Leader to
18
protect the privilege nature of this.
19
discussion that Ms. Keefe talked about where
20
Andrews Kurth said, Let's sit down in the room,
21
that was before the NDA was signed.
22
The
Once they get the NDA signed, their
23
attorney stamped confidential on what they wanted
24
to exchange that they believed contained
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
27
1
privilege information.
2
communication that talks about what they need to
3
do to protect privilege.
4
And they also have the
So the intent of the parties was to
5
protect the privilege.
6
then there's no way these parties can
7
communicate.
8
9
If you take away that,
I disagree wholeheartedly with
Ms. Keefe that they're hoping that the financing
10
is -- hoping this doesn't work.
11
business.
12
litigation.
13
This is their
Their business is to finance
They're hoping it does work.
14
hope they make a lot of money.
15
They
game.
16
This is the end
But even before that, I disagree a
17
hundred percent that this is relevant information
18
that should be discoverable.
19
absolutely no way this would ever be admitted at
20
trial.
21
And there's
I mean, for example, if a company --
22
one of the financing companies believed that our
23
patent was, you know, end all, to be the all
24
greatest thing they've ever seen, there's no way
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
28
1
2
that's going to get admitted.
Conversely, if they thought it was a
3
bad patent that would not get admitted either,
4
that these are all opinions, it would not lead to
5
admissible evidence, because all that is being
6
discussed here are legal opinions as to the
7
merits of the case.
8
You know, to have a lawyer opine one
9
way or the other about what is -- you know,
10
whether the patent covers is not going to be
11
admissible, should not even be discoverable
12
because there were protections in place to try to
13
prevent that exact case from happening.
14
15
16
THE COURT:
Mr. Andre, what about
statements by the inventor to a third party?
MR. ANDRE:
Well, if there are
17
statements by the inventor, there were any type
18
of admissions.
19
not under the privilege protection.
20
It's possible maybe, but if it's
But the example they use, for
21
example, in their letter where they talk about
22
the obvious reasonable skill in the art to try in
23
2003 and 2004, that's not an admission.
24
patent was filed in 2002.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
The
19801
29
1
We have an invention date going back
2
to at least 1998.
3
that are statements saying after, you know, we
4
filed our patent application.
5
White paper in early 2003.
6
So these are not admissions
We published the
Facebook launched in 2004.
So there
7
are no admissions, these documents they're using.
8
So with respect to party admissions,
9
if they are going to say the admissions are that
10
they think the patent is great, I think Facebook
11
is infringing, that's not going to get in.
12
THE COURT:
So articulate for me,
13
then, what is your view of what types of
14
communications between Leader and these third
15
parties are privileged and stay within the
16
privilege due to the common interest document
17
trend?
18
Because I take it you're not saying
19
that everything you talk to the third parties
20
about is privileged and non-discoverable, but you
21
seem to think a lot of it is.
22
23
24
Can you articulate for me what the
distinction is?
MR. ANDRE:
It's when they are
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
30
1
conveying the analysis of their attorneys.
2
way this process works is the finance company has
3
their attorneys.
4
The
Leader had its attorneys.
The attorneys want to be able to
5
disclose information to each other, either
6
through the company contact or directly amongst
7
themselves.
8
being communicated in order to facilitate, you
9
know, the discussion and whether or not they are
And if the attorney analysis is
10
going to be vested in this legal proceeding, I
11
believe those are privileged.
12
THE COURT:
So if the inventor is
13
part of these meetings and he or she just starts
14
talking about, Here's how I came up with the
15
idea, you know, on such and such a date I did
16
this, such and such a date I did that, that is
17
not privileged.
That's discoverable.
18
Correct?
19
MR. ANDRE:
If it does not reveal
20
attorney-client communication or work product,
21
yes, that's discoverable, Your Honor, if it's
22
relevant.
But I don't think it's relevant.
23
24
THE COURT:
And why would that not
be relevant?
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
31
1
Isn't that --
2
MR. ANDRE:
I guess if he's saying I
3
came up with the idea here, there, I guess that
4
would be.
5
way, depending on the substance of the
6
disclosure.
7
8
I think it could be, let's put it that
And to the extent we have those type
of documents, they have been produced.
9
THE COURT:
From the documents
10
you've produced, can Facebook identify all of the
11
third parties that you've had these discussions
12
with?
13
MR. ANDRE:
Well, all the ones that
14
I believe we can recall.
15
extent there are documents that we had
16
discussions with any of these parties, there was
17
always a NDA disclosed, NDA assigned, and we
18
disclosed with an NDA.
19
I mean, I think to the
There might have been some cold
20
calls, emails that were sent that they may not be
21
able to determine from the NDAs.
22
Now, there were a considerable
23
amount of documents.
We actually produced emails
24
in this case, unlike Facebook who didn't produce
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
32
1
a single email.
2
of those were the cold call emails to the system.
3
4
And in any of those emails, many
They were kept in the normal course
of business.
5
We did produce those.
So from the document production,
6
they should be able to get all, if not -- or
7
most, if not all, of the third-party financing
8
companies that were contacted by Leader.
9
THE COURT:
And the only exception
10
would be if it was something akin to a cold call,
11
and nobody at Leader has any recollection as to
12
who those third parties are?
13
14
MR. ANDRE:
That's correct, Your
THE COURT:
That is, you've not
Honor.
15
16
expressly excised the names of any third parties
17
that you know were called; correct?
18
MR. ANDRE:
That's correct, Your
19
Honor.
At this point, with regard to these
20
third-party financing companies, I think this
21
is -- to point to a phrase used in Texas, they're
22
drilling in a dry hole.
23
issue about what third parties they're going to
24
contact.
We don't care about this
They subpoenaed over 20 of these third
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
33
1
parties.
2
3
They are going to take depositions.
They've noticed depositions of individuals.
4
We don't think this will lead to any
5
discoverable, any admissible evidence in this
6
case.
7
privileged communications.
8
protect those.
To the extent this will, there are
9
THE COURT:
We're trying to
And have you produced or
10
logged all of the documents that you exchanged
11
with the third parties that you signed NDAs with,
12
all such documents that relate to the '761
13
patent?
14
all of them?
15
16
17
Have you either produced them or logged
MR. ANDRE:
Honor.
I believe we have, Your
Our privilege log is over 2,000 entries.
And to the extent we've done any
18
documents that had the privilege document
19
communications, we've relogged them.
20
discuss the '761 -- as I said, there may be some
21
documents if we go to dig.
22
If they
You know, our policy here was to
23
produce every single document the company had.
24
It's a small company.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
34
1
We just didn't want to have these
2
fights over and over and over again.
3
reason these things came up in the first place.
4
That is the
To the best of our knowledge, we
5
have produced all the documents that discuss the
6
'761 patent.
7
go back and make a further check with the client
8
to make sure they don't have some filed things
9
somewhere else that we didn't believe were
With these third parties, I could
10
relevant, but I think at this point we've logged
11
all the privilege documents.
12
THE COURT:
Well, I think the
13
concern that I'm hearing, at least in part, is
14
you and I have now had some back and forth as to
15
what's relevant, what's not relevant.
16
first you indicated you didn't think an inventor
17
statement about, you know, when he conceived of
18
the idea of the invention, you suggested that
19
might not even be relevant.
20
And at
So I'm trying to put that relevance
21
question aside and just get right to any document
22
relating to the '761 patent, that either Leader
23
sent to the third party or was received back from
24
the third party.
Are you in a position to
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
35
1
represent that all of those documents have either
2
been produced, or if you think there's privilege,
3
they've at least been logged?
4
MR. ANDRE:
Your Honor, I believe
5
all those documents have been produced in their
6
original form as they were sent back and forth.
7
And I don't mean to be splitting hairs here.
8
9
If we sent a document to a third
party like, for example, we sent an email saying
10
attached is a document that describes "X", then
11
the document itself has been produced.
12
with the attachment may not have been produced.
13
The email
I don't know if we look for those --
14
but all the documents that discuss the '761
15
patent have been produced or logged.
16
through every single document the company had.
17
If it discussed the patent in any way, we
18
produced it or logged it on the privilege log.
We went
19
THE COURT:
Okay.
20
MR. ANDRE:
So I don't want to
21
mislead the Court in any way and say those
22
communications going back and forth have been
23
produced as well, because I can't say with
24
absolute certainty that's the case.
But the
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
36
1
2
3
4
5
6
documents themselves have been.
THE COURT:
All right.
Let me turn
back to Ms. Keefe.
Anything you want to say in response
to what you've heard?
MS. KEEFE:
Just that I don't
7
understand how that can be the case when we
8
received a log from IP Investments, one of the
9
third parties, that shows a series of documents
10
that we've never heard of or seen before.
11
Investments logs a series of documents on the
12
privilege log based on common interests that
13
appear nowhere on Leader's log that we can tell
14
or in Leader's production.
15
So IP
Exhibit 1 and 2, the time line
16
itself in this and this White paper were never
17
produced by Leader, and yet are completely
18
relevant, written by the inventor.
19
don't appear to appear on the privilege log in
20
any way that we can tell and were certainly never
21
produced to us.
22
And also
So I don't understand how that can
23
be the case that they've actually produced these
24
documents or logged them.
If they have logged
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
37
1
them, I don't understand how.
2
THE COURT:
All right.
Let's see,
3
Mr. Andre, could you respond to that specific
4
example?
5
MR. ANDRE:
Well, in response to IP
6
Investments, they have their own privileged
7
documents that would be on the log that would be
8
separate from Leader's log.
9
common document.
10
11
It won't be just a
They have their own attorneys as
well.
They have their own privilege issues.
12
With respect to those two specific
13
documents she's referring to, I believe they have
14
been logged on our log or they have been
15
produced.
16
single-page documents that are part of like a
17
200-page document that was produced to Facebook.
18
As I said, if it's referring to the
These are documents that are
19
'761, it's either on the log or it's been
20
produced to Facebook, to the extent that Leader
21
kept those documents in the normal course of
22
business.
23
24
And I believe, I can't tell you
exactly a Bates number where those documents were
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
38
1
produced, but I believe those documents were
2
produced or logged in this case if we still have
3
them.
4
THE COURT:
But you could get that
5
answer, those specific Bates numbers to us pretty
6
quickly; right?
7
MR. ANDRE:
Quickly being relative.
8
Over the holidays I've got a real skeleton crew
9
working.
10
THE COURT:
11
a couple of business days you could?
12
MR. ANDRE:
13
office.
Understood.
Yeah.
But within
I'm out of the
I could get someone in the office.
14
I could try to dig up those Bates
15
numbers of the documents.
16
one page from IP Investment is a page of a much
17
larger document.
18
And it would be the
We'd have to go through needles in
19
the haystack.
20
week, Your Honor.
21
We could try to find that within a
MS. KEEFE:
I am not sure what he's
22
talking about from IP Investments.
The two
23
exhibits I was talking about was the exhibit to
24
my letter, the time line indicating everything
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
39
1
the inventor thought about when he came up with
2
the idea and what was the prior art; and the
3
White paper, which is about 10 or 12 pages long
4
where the inventor discusses why he thinks his
5
patent is non-obvious.
6
Those are the ones I am talking
7
about that I've never seen produced or logged.
8
In our letter we tried to -- we said, It looks
9
like this is in the privilege log at this entry.
10
And we were told in the responsive letter, That's
11
absolutely not what it is.
12
13
There's no evidence it was ever
produced or logged.
14
THE COURT:
Ms. Keefe, I think we're
15
going to use this example as a test, so let's be
16
as precise as possible.
17
has privilege log of IP Investments Group, but
18
you're talking about two particular documents,
19
either on that log or two other documents that
20
you've attached to your letter?
21
MS. KEEFE:
I see the exhibit that
Two other documents,
22
Exhibit 1, which is Neyer, N-E-Y-E-R 00103
23
produced.
24
THE COURT: And we are talking about
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
40
1
Exhibit 1 to DI-182, your letter of December
2
21st, 2009.
Okay?
3
MS. KEEFE:
Okay.
Correct.
4
And similarly Exhibit 2 to my letter
5
at Bates labeled N-E-Y-E-R 000208 through
6
N-E-Y-E-R 000218.
7
THE COURT:
Okay.
And Mr. Andre,
8
you understand that the two documents that
9
Ms. Keefe is looking to nowhere, either -- where
10
are they in your production or where are they on
11
your privilege log?
12
MR. ANDRE:
13
documents.
14
Investments.
15
I understand the two
These are not the documents with IP
different group.
This is with Neyer.
It's a
16
Exhibit 1 is a one-page time line.
17
THE COURT:
Right.
18
MR. ANDRE:
And I do believe that is
19
one page of a much larger document.
20
be on our privilege log.
21
up.
22
That would
We can go and dig that
And Number 2 is the White paper
23
itself.
I believe we could dig that up as well
24
on the log.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
41
1
THE COURT:
And Ms. Keefe, yeah,
2
what we're going to do, we're going to play this
3
out as a little bit of a test and see if you
4
either have gotten this material from Leader or
5
where it is on their privilege log.
6
anything from the IP -- what are they called, IP
7
Investments Group log?
8
9
But is there
You know, I'm willing to send
Mr. Keefe's -- I'm sorry, Mr. Andre's staff,
10
forgive me, back with reasonable timing to find a
11
few other documents.
12
the IP log that you'd like them to locate?
13
Are there a few entries on
MS. KEEFE:
There absolutely are.
14
There are communications on that log from
15
Mr. McKibben to Ryan Strong, for example, who's
16
an investor over at IP Investments.
17
at that log, which is attached as Exhibit 16 to
18
our letter.
If you look
19
THE COURT:
Right.
20
MR. ANDRE:
And the entry -- for
21
example, the first, I would say -- I'm sorry,
22
Your Honor.
23
number that makes the most sense.
24
Let me just get you a specific
There's only four pages so we know
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
42
1
where all these are.
2
MS. KEEFE:
How many?
3
THE COURT:
That's fine.
4
I understand the confusion.
5
say Mr. Keefe -- sorry, forgive me.
6
Yeah.
Let's
Clearly my
mind is a little tired here.
7
Mr. Andre, in addition to the two
8
documents, we've already identified Exhibits 1
9
and 2.
I also want you to identify any
10
communications between, I believe, it's
11
Mr. -- let me get the name correct -- between
12
Mr. McKibben and Mr. Strong.
13
Any of those communications that are
14
listed, and let's say any communication between
15
Mr. McKibben or Mr. Sobdick on the Leader side
16
and Mr. Strong, who I understand would be on the
17
IP Investments Group side.
18
Any of those communications which
19
are logged here on Exhibit 16 to DI-182, I want
20
you to find out and identify where they are on
21
your privilege log or identify where the
22
documents embodying those communications have
23
been produced.
24
Understood, Mr. Andre?
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
43
1
MR. ANDRE:
2
understand, Your Honor.
3
would be every single document on the privilege
4
log, because all those involve either Jim
5
Sobdick, Ryan Strong or Mike McKibben.
6
of them are emails.
7
THE COURT:
I'm not sure I
That looks like that
Yeah.
And most
It looks like it
8
is all of them, so I'm asking you to do all of
9
them.
10
that.
11
And I will give you sufficient time to do
But you understand what I'm asking
12
you to locate; correct?
13
MR. ANDRE:
I think so, Your Honor.
14
I mean, it sounds a bit -- well, I'll say -- I'll
15
just put it this way:
16
extremely one sided in the fact that, you know,
17
Facebook has not produced a single email in this
18
case, and we are trying to go through now and
19
find out where each of these emails that we
20
produced are on the privilege log, if they are.
21
The discovery burdens are
If not, I guess we have to log them
22
on the privilege log of emails that we don't
23
think are relevant.
24
try to find where on this four-page log if those
But we can go through and
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
44
1
2
were produced or logged.
THE COURT:
Right.
And if they've
3
not been produced or logged, then you either need
4
to produce them or log them.
5
And I'm going to give you until
6
January 15th to do that for all of the documents
7
and communications that we've just discussed, and
8
in recognition of certainly that there are
9
holidays coming up.
But let me just say the
10
reason I'm doing this is as a test.
11
You know, I accept the
12
representation, that is, as far as it has gone
13
from you, Mr. Andre, that you believe all
14
documents relating in any way to the '761 patent
15
have either been logged or produced.
16
You indicated it might be helpful to
17
have a chance to double-check that.
18
give you that opportunity.
19
I do want to
And I'm also concerned, because we
20
have at times talked in the language of relevance
21
or even admissibility.
22
obviously, have a substantial dispute as to what
23
is relevant and certainly what would be
24
admissible when it comes to communications with
And the parties,
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
45
1
2
third-party investment financing groups.
And so before I can really get to
3
the bottom of that issue and determine if any
4
further relief is to be ordered for Facebook on
5
these matters, I think it's fairer and an
6
exercise in my discretion to select a more
7
limited number of documents and communications
8
which have been specifically identified by third
9
parties and just make sure that those documents
10
and communications which we know exist, given
11
they've been disclosed to us by third parties,
12
let's make sure that they are in Leader's
13
production or on Leader's log.
14
And if they are, that might very
15
well be the end of the issue.
16
then we'll need to understand why they're not.
17
18
If they're not,
Have I been clear about what it is
that I'm asking you to do, Mr. Andre?
19
MR. ANDRE:
You have, Your Honor.
20
THE COURT:
Okay.
Ms. Keefe, where
21
does that leave us with respect to the issues
22
raised in your letter?
23
covered at this point?
24
MS. KEEFE:
How much of that is
That resolves -- that
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
46
1
starts us down the road of resolving all of those
2
issues.
3
remain.
4
I think there's only two issues that
The first is that for a number of
5
the -- it goes to the issue of how the privilege
6
log itself reads and whether or not it contains
7
enough information to establish the privilege
8
that is their burden to show.
9
log entries, there's some names, and we just
For many of the
10
don't know who the names are, if they even are
11
attorneys or employees.
12
Throughout the meet and confer
13
process, Leader's position was that it had no
14
obligation to give us those names.
15
during -- in the letter in opposition to ours
16
that they first for the first time offer that if
17
we identified entries where we didn't know who
18
the people were, that they would look into that
19
and, you know, think about -- giving us those
20
names.
21
I note
I would offer that I think what we
22
need is a key to understand why they believe
23
these documents to be privileged based on who
24
these people are and what they did for Leader at
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
47
1
the time that the document was created.
2
So if they're willing to give us
3
that key at this point, I think that would
4
resolve that issue.
5
THE COURT:
Mr. Andre.
6
MR. ANDRE:
I'm not sure what she's
7
asking, Your Honor.
8
9
I'll be honest with you.
In our privilege log, we've
identified in every single instance the to and
10
from.
11
designation, the attorneys, where they show that
12
there are attorneys involved in these
13
communications.
14
We've identified with the Esq.
We've gone above and beyond the
15
legal requirements for a privilege log.
16
compare and contrast our privilege log to
17
Facebook, they have only ten entries.
18
percent of those, they don't even have a to and
19
from in those logs.
20
If you
Forty
So there's a little bit of equal
21
dignity argument here, that we, once again, are
22
the -- they're asking for what they're not
23
willing to give.
24
That is over and over again.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
48
1
MS. KEEFE:
That's actually --
2
THE COURT:
Mr. Andre, I'm not
3
comparing your log to a log that's not in dispute
4
at this point.
5
I'm only looking at your log.
And it would seem to me that by
6
asserting the privilege, the burden is on you to
7
establish all of the elements of the privilege.
8
And what I understand the complaint to be here is
9
that you've not met your burden in a number of
10
instances in identifying that the individuals,
11
the to and from individuals are within the scope
12
of a privilege, because no one can tell who they
13
were employed by, or if they are attorneys, who
14
they were representing.
15
Is that information that you are
16
offering to provide to Facebook at this time
17
either on a request-by-request basis or some type
18
of key that would just be, as I understand it,
19
basically an index listing all of the names that
20
are on your log and identifying on -- you know,
21
on a single document, Here's who they are
22
employed by?
23
they represented?
24
And if they are attorneys here, who
MR. ANDRE:
Your Honor, we've
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
49
1
been -- we've informed Facebook on multiple
2
occasions that we've identified everyone who was
3
an attorney.
4
specific instances where they do not know who the
5
individuals are, we will look into determining
6
what relationship they are to the privilege, and
7
where they're employed.
8
9
And to the extent they identified
What they ask for is the role these
people had in the company.
They're asking not
10
only for the employer, but what role they played
11
in the company, what was their position, things
12
of this nature.
13
and not required by law.
14
And that's just overburdensome
THE COURT:
I agree with you on the
15
role.
But I think identifying who the employer
16
is is required and maybe it is that everybody
17
listed is employed by Leader.
18
know, that one blanket representation would take
19
care of it.
20
In which case, you
I have one other question for you,
21
Mr. Andre.
With respect to the recipients of
22
documents, have you only listed as recipients
23
individuals who are named on the face of the
24
document or have you more broadly listed as
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
50
1
recipients everyone that the company knows
2
received the document?
3
MR. ANDRE:
It's everyone in the
4
company that knows who has been given a document.
5
We're -- from the face of the document, you can
6
determine obviously who received the document, to
7
some degree.
8
9
To the extent the company recalls
specifically sending it to others, we will
10
identify those instances.
11
our client.
12
who they sent it to, if they sent it to anyone
13
else.
14
And we've talked to
In most cases, they can't remember
They believe they only sent it to
15
the recipients.
16
that they did, we will put this on the log as
17
well.
18
To the extent we can determine
And we have been thus far.
THE COURT:
Ms. Keefe, it sounds to
19
me like you have a representation from Mr. Andre
20
that he will work with you to give you additional
21
information on an entry-by-entry basis if you
22
identify entries that you don't feel you have
23
enough information on.
24
It sounds to me like that should be
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
51
1
satisfactory, but am I missing something?
2
MS. KEEFE:
I very much appreciate
3
that.
4
know there are a number of places where they've
5
listed that a person is an attorney, but they
6
don't -- they never volunteered to confirm for us
7
who that attorney was representing at that time.
8
And as long as that's included, so that -- you
9
know, because, obviously, you can have people who
10
are attorneys who aren't practicing law or aren't
11
representing a party at the time.
12
The only thing I would want clarified is I
As long as that is part of the
13
information that I can request, that will satisfy
14
everything that I need right now.
15
THE COURT:
Mr. Andre.
16
MR. ANDRE:
I'm not sure what she's
17
asking, once again.
But if she's saying who the
18
attorney is representing is all she asked for, we
19
can reprovide that.
20
attorneys in every case on the privilege log.
We've identified the
21
THE COURT:
Okay.
Fine.
22
Well, I'm going to order that this
23
communication or this, excuse me, conversation
24
continue between the parties.
And if Facebook,
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
52
1
in good faith, believes it can't figure out
2
whether or not the elements of privilege have
3
been properly asserted on Leader's privilege log,
4
then Facebook can identify the entries for which
5
it wants more information.
6
provide the reasonable additional information
7
that we've discussed here.
8
9
10
And Leader will
And that will take care of the
privilege log issue.
I think there is one final
issue in your letter, Ms. Keefe.
11
MS. KEEFE:
Yes.
12
THE COURT:
Do you want to address
13
that now at this point?
14
MS. KEEFE:
The final issue, Your
15
Honor, resolves around the production, Leader's
16
production of the product and the source code
17
behind that product or the product that they
18
claim practices the invention claimed in the '761
19
patent.
20
If Your Honor will recall, we've
21
actually been in front of you once before on the
22
issue of how Leader's own product practices the
23
patent.
24
while you understood the relevance to the issue
And at the time, Your Honor said that
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
53
1
of injunctive relief, lost profits, possibly to
2
other damages type issues, Your Honor said that
3
the burden should be on us to do the
4
investigation, provided that we had access to the
5
products and the source code.
6
Immediately thereafter, we then did
7
a request for production to Leader for the
8
products and the source code that supports that
9
product, so that we could conduct our own
10
analysis of whether or not we believe that Leader
11
can make a claim that it is our competitor, or
12
that it deserves injunctive relief or that it
13
deserves lost profits.
14
Leader to demonstrate that its own product
15
practices the claims of the patent.
16
All which would require
And we've been thwarted.
Leader has
17
said that they refuse to produce the product or
18
the source code.
19
some nefarious purpose for forcing them to a
20
product to product or infringement contention,
21
which is obviously not the case.
22
They've stated that we have
They've indicated that they're going
23
to use the product to support their allegations.
24
They deserve an injunction.
And to support
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
54
1
things like lost profits, we deserve a chance to
2
investigate that ourselves.
3
product and the code to do that.
4
And we need the
If they would prefer to not produce
5
the product and the code, and they would prefer
6
to not rely in any way on the product and the
7
code at trial, I'm fine with that, too.
8
they're going to rely on the product and the
9
code, then I deserve the right to look at it, as
But if
10
Your Honor indicated back in September, product
11
to product.
12
THE COURT:
If you were given access
13
to the product as an initial matter, why would
14
you also need the code?
15
MS. KEEFE:
Well, I think for the
16
exact same reasons that Leader insisted that it
17
needed our code.
18
to both forward-facing elements and
19
backward-facing elements.
20
that the user can see by using it, but also to
21
how the code is using itself to transform, or
22
track information or anything of that nature.
23
24
The claims of their patent go
In other words, things
So all of the same reasons that
Leader needed to see our code to make the
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
55
1
assessment of whether or not the claims cover our
2
product are the same exact reasons that we need
3
to see their code and their product to assess
4
whether or not their arguments that their product
5
is covered by their claims have merit.
6
THE COURT:
All right.
Mr. Andre,
7
let's turn to you and start with any chance that
8
you're willing to agree not to rely in any way on
9
the product or code at trial?
10
MR. ANDRE:
Your Honor, we will not
11
be relying on our source code at trial.
12
not be provided in evidence and it will not be a
13
part of what we present at trial.
14
It will
The product itself is a -- it's a
15
service we provide.
16
approximately ten times more documents, technical
17
documents about how the functionality of our
18
product works than they produced to us, even
19
though we're the patentee and they're the
20
defendant.
21
And we provided to Facebook
THE COURT:
But you will be or at
22
least are reserving the right to rely on your own
23
product as part of your trial presentation?
24
MR. ANDRE:
What we will -- what we
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
56
1
will be presenting and what we will ask Judge
2
Farnan for is an injunction based on the fact
3
that they are competitors in the marketplace.
4
These are market competitors.
5
We do not want to get into a
6
situation as Facebook has tried on multiple
7
occasions to do to have us have to prove our own
8
product infringes our own patent.
9
ridiculous.
10
That is
This is all they're trying to do is
11
a product-by-product comparison saying their
12
product looks different than our product.
13
not the issue.
14
15
The issue here is:
product look like our patent?
16
17
THE COURT:
That's
Does their
That's the issue.
What is your theory by
which you are competitors?
18
MR. ANDRE: We are competitors,
19
because they take sells away from us in the
20
marketplace.
21
marketplace for enterprise systems that use
22
social networking.
23
giving away for free what we're trying to sell,
24
because they make their money on targeted
We offer competing products in the
Essentially, Facebook is
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
57
1
advertising.
2
THE COURT:
So focusing just on the
3
product then, what's the argument against
4
producing to Facebook fully functioning copies of
5
your product?
6
placing it at interest.
7
MR. ANDRE:
It seems that you're clearly
8
per se.
9
We don't sell a product,
Like you don't send us a check and we
send you a product.
10
What we do is we provide a service.
11
We keep that service in place.
12
ton of documentary evidence of how that service
13
functions.
14
And we've given a
We've produced everything to them
15
already that describes how our product is
16
functioning and how our service is provided.
17
18
MS. KEEFE:
can't use it.
But, Your Honor, we
We don't have a membership.
19
THE COURT:
Ms. Keefe, please.
20
will give you a chance.
21
MS. KEEFE:
I apologize.
22
THE COURT:
I'm talking to
23
Mr. Andre at this point.
24
I
Mr. Andre, do you --
the issue as to whether or not Leader is a
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
58
1
competitor with Facebook is in dispute.
2
agree with that?
3
4
MR. ANDRE:
dispute, Your Honor.
5
Do you
I believe it will be in
Yes.
THE COURT:
And do you agree that
6
Facebook is entitled to make the best possible
7
case to support the position that you're not
8
competitors?
9
MR. ANDRE:
Your Honor, of course,
10
any party can make their best case in any
11
contested legal element.
12
THE COURT:
Of course.
And so your position is
13
that simply by providing technical documents
14
without access to your product and without access
15
to your source code is a sufficient basis, is
16
fair enough for -- as a basis for Facebook to
17
make the argument that you're not a competitor?
18
I guess that's your position.
19
MR. ANDRE:
20
competitor or not, it's our burden.
21
that.
22
Your Honor, if they're a
I will say
And our burden is to show that they
23
are competitors in the marketplace.
We plan on
24
doing that using our documents that we put
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
59
1
forward and provided them already.
2
If we cannot meet that burden, then
3
it's on us.
4
competitor in that circumstance if we can't meet
5
our burden.
6
And Facebook will not be a
What they're trying to do is say
7
that not only do we have to prove that they're
8
competitors, but that somehow the products are
9
identical or that we had to prove infringement of
10
our own patent.
11
Circuit has set forward in the test.
12
That's not what the Federal
They say if they're a market
13
competitor, our patent gives us a right to
14
exclude them from the market.
15
irreparable harm issue.
16
That's an
That's the only issue they bring us
17
up on.
Are we competitors for the issue of
18
irreparable harm?
19
documents we've provided them already and the
20
documents we produced in this case and the
21
testimonial evidence and whatever -- anything
22
else we put forward in this case, we will fail
23
our burden.
24
the documents we've put forward.
If we can't prove it with the
But we believe we can prove it with
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
60
1
If they can show in any way that
2
we're not competitors, that's not their burden.
3
The burden is on us.
4
THE COURT:
But they have made out
5
representations that they can show that you're
6
not competitors, if only they have access to your
7
product and your source code.
8
make of that?
9
MR. ANDRE:
So what am I to
Well, the only purpose
10
they would -- what they're really saying is not
11
that we're not competitors, what they are saying
12
is that we don't practice our invention, that we
13
do not have a -- they're going to go in and try
14
to put in evidence that our product is not
15
infringing our patent.
16
That is not a competitor basis.
17
That's not how you determine if one party is a
18
competitor of the other party.
19
look different.
20
by our patent or not can be determined by the
21
documents we've produced and the testimony that
22
we're willing to give.
23
24
The products will
Whether our product is covered
This is not a case where they're
accusing us of infringing their patent, and
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
61
1
therefore, they get a look at our product in that
2
level.
3
is that we're not competitors.
This is a case where all they're saying
4
Well, if they can prove that in the
5
market -- in the marketplace, that's where the
6
determination is.
That's what the Federal
7
Circuit has said.
That is what courts have said
8
throughout the country is a marketplace
9
determination.
10
If we can't prove we're competitors
11
in the marketplace, then we will not be able to
12
achieve the first prong of the four-part test for
13
getting to injunction.
14
obviously an equitable issue that Judge Farnan
15
will decide.
16
This is an issue where --
I think at this point in the case,
17
there's absolutely no reason to open up our
18
source code, which is very sensitive to us, to
19
Facebook, especially in light of the fact that
20
we've produced ten times the documents about our
21
product than they've produced to us.
22
THE COURT:
23
24
All right.
Ms. Keefe,
you may go ahead at this point.
MS. KEEFE:
Thank you, Your Honor.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
62
1
Not much to add.
2
They've told -- they've represented
3
to us and the Court that they do practice their
4
patent.
5
patent number.
6
that the product is patented by the '761 patent.
7
They've marked their product with the
All of their documentation says
And they use that in order to try to
8
establish that we're a competitor.
One factor in
9
determining competition is whether or not you
10
know both products practice the same claim.
11
That's one way that you can be a competitor.
12
Regardless of whose burden it is to
13
establish competition, we still deserve the right
14
to be able to challenge the fact of competition.
15
And one of the things we need to investigate is
16
what their product does.
17
without a membership to this service.
18
even use the product right now.
19
THE COURT:
And we can't do that
We can't
Well, is that what you
20
mean by your request for a fully functioning
21
version of the product?
22
includes some type of membership, I take it?
Fully functioning
23
MS. KEEFE:
I believe so, yes.
24
THE COURT:
Okay.
All right.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
63
1
Well, I'm prepared to rule on this
2
one.
And having weighed the competing arguments,
3
I am persuaded that Facebook is entitled to some
4
relief on this issue, and specifically I am going
5
to order that Leader provide fully functioning
6
copies of the Leader to Leader, and I guess
7
Leader to Leader Enterprise social networking
8
products.
9
I'm looking specifically at
10
Facebook's Request for Production Number 65 and
11
66, which are attached as Exhibit 18 to Docket
12
Entry 182.
13
So with respect to 65 and 66, I'm
14
overruling Leader's objections and I'm granting
15
the motion to compel of Facebook.
16
that while the burden of proving competition in
17
connection with the request for an injunction and
18
other types of damages or damages relief, while
19
that burden is on Leader, a defendant here,
20
Facebook, has a right to defend itself, not
21
solely by arguing that the plaintiff has failed
22
to meet its burden, but also by, if it can,
23
proactively proving that the two companies, in
24
this case, are not competitors.
I do believe
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
64
1
And I think that Facebook is
2
entitled to access fully functioning access to
3
the product that is the basis for the contention
4
of Leader that the companies are competitors.
5
Facebook's entitled to access to that product to
6
determine if it may have a basis for arguing
7
through the product that the two companies are
8
not competitors.
9
At this point, I'm denying the
10
request for relief under Production Request
11
Number 67, which seeks a copy of the complete
12
source code for Leader to Leader.
13
fairly well the back and forth over many weeks or
14
months and phone calls that we had which led
15
ultimately to the production of the entire source
16
code of Facebook to Leader.
17
I do recall
And it may turn out that Facebook
18
will persuade me that they need access to the
19
entirety of Leader's source code.
20
Facebook has not yet even had access to a fully
21
functioning version of the product, seeing as I'm
22
sure Leader will view the source code as the most
23
important commercial property, and seeing as I
24
think, I would want a very strong showing before
But seeing as
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
65
1
I'm going to provide access to the source code
2
just as I required when Leader was seeking
3
Facebook's source code, I just don't think that
4
showing has or can be made at this point given
5
that Facebook has not even had a moment to access
6
fully functioning access to the product to the
7
Leader product.
8
So that's my ruling on that issue.
9
We should talk about the timing for
10
when Leader can provide the fully functioning
11
product.
12
to suggest a date by which you could do this?
13
Mr. Andre, given the holidays, you want
MR. ANDRE:
Your Honor, I will
14
endeavor to do all the issues you brought up by
15
January 15th, if that's acceptable.
16
THE COURT:
17
18
19
That is acceptable.
So
you'll do that by January 15th.
I believe that addresses all the
issues raised in the letters.
20
Is that correct, Ms. Keefe?
21
MS. KEEFE:
22
23
24
It does, Your Honor.
had one other question, if you don't mind.
THE COURT:
Just one second.
Mr. Andre, were there any other issues in the
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
I
66
1
letters that you think have not been addressed?
2
3
MR. ANDRE:
No, Your Honor.
I think
everything has been addressed.
4
THE COURT:
Okay.
Ms. Keefe.
5
MS. KEEFE:
The simple question, I
6
think Your Honor still has two motions pending
7
before Your Honor, and I just wanted to know if
8
we could anticipate a ruling on those or a
9
hearing if you needed one.
10
11
THE COURT:
The answer is, yes, I'm
going to rule on those motions right now.
12
MS. KEEFE:
Thank you.
13
THE COURT:
Okay.
So the two
14
pending motions are Facebook's motion to stay
15
pending re-examination and Facebook's motion for
16
leave to amend its responsive pleading to add a
17
counterclaim for false marking.
18
to give you my rulings on both of those motions
19
right now.
And I am going
20
First, on the motion to stay pending
21
re-examination, I am denying Facebook's motion to
22
stay.
23
the conclusion of a pending ex parte and inter
24
parte's re-examinations by the PTO of Leader's
Facebook, as we know, seeks a stay until
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
67
1
'761 patent, which is the sole patent-in-suit.
2
In reviewing the parties' papers, I
3
note that both sides recognize that the issue of
4
whether to grant such a stay is a matter within
5
the Court's discretion.
6
I agree with that.
I do not agree with Facebook's
7
suggestion that this Court routinely stays
8
litigation pending re-examinations.
9
fact specific, of course, and always requires the
10
Each case is
careful exercise of discretion.
11
And I also note, I think it was
12
Leader, put in the record some commentary or
13
study that suggests actually in this district, we
14
have a relatively low rate of granting these
15
stays.
16
grant such a stay.
17
But in any case, it's not routine to
Turning to the specific factors that
18
need to be considered, I find that the factors
19
weigh decidedly against staying this case pending
20
the re-examination.
21
true that the stay could eventually simplify
22
issues that are pending, in this case, I think
23
it's very unlikely that granting a stay would
24
lead to an ultimate resolution of all the
First, while it might be
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
68
1
2
disputes between the parties.
As I understand it, Claim 17, which
3
has been asserted here by Leader, is not even
4
part of the re-examination.
5
PTO, of course, only deals with issues of
6
validity during the re-examination.
7
deal with issues such as infringement, damages,
8
and injunctive relief.
9
And moreover, the
It does not
And so unless the outcome of the
10
re-examination were to cancel all of the asserted
11
claims that are in re-examination, there will
12
still be things left for this Court to do with
13
respect to those claims that emerge from the
14
re-examination.
15
That's the first factor.
The second
16
factor deals essentially with the timing of when
17
the stay was sought.
18
And this factors also, in the
19
circumstances of this case, disfavors a stay.
20
the time that the motion for stay was filed,
21
paper discovery was largely completed.
22
At
We were on the eve of depositions.
23
Now, of course, a couple of months, I think, have
24
gone on further since when the motion was filed.
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
69
1
Claim construction at this point is
2
imminent.
But most important with respect to the
3
timing issue is that this is a fast track
4
litigation by agreement.
5
This case was set from the beginning
6
for a trial in June 2010, which was a period of
7
only approximately 19 months from the filing of
8
the complaint.
9
only have the parties expended substantial time
And as the parties well know, not
10
and other resources in litigating this case
11
vigorously over the last 13 months, but the
12
Court, too, has spent much time and resources
13
resolving discovery disputes, among other things,
14
and making every effort to keep this case on
15
track on the fast track towards a trial in June
16
of next year.
17
The final factor is whether the stay
18
would unduly prejudice the non-moving party,
19
Leader, and I accept the representation.
20
sufficient evidence in the record to accept that
21
representation, for purposes of this motion, that
22
there would be undue prejudice to Leader, as
23
we've already discussed in another context today.
24
I find
Leader asserts that it is a
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
70
1
competitor of Facebook.
2
further that delay would decimate the market for
3
Leader's Leader to Leader product, and further
4
represents that Leader will likely cease to exist
5
if this case is stayed pending re-examination as
6
the much larger and successful competitor,
7
Facebook, essentially allegedly gives away the
8
technology that Leader allegedly owns and is
9
trying to sell.
10
And Leader asserts
In this regard, it's notable, I
11
think, that none of us have any idea how long
12
this stay that's requested would last.
13
likely to be at least two and as many as five or
14
six years.
15
would last.
16
It's
But we don't know exactly how long it
And given that, it's also quite
17
possible that the delay could create evidentiary
18
problems for Leader due to faded memories and
19
that sort of thing, if and when the case were to
20
come back to this Court some years down the road.
21
And finally, I perceive no clear
22
hardship or inequity to Facebook if the stay is
23
denied.
24
denying Facebook's motion to stay and will issue
And, therefore, for those reasons, I am
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
71
1
2
an order to that effect after this call.
Next, and finally, I want to deal
3
with Facebook's motion for leave to amend the
4
responsive pleading to add a counter claim for
5
false marking.
6
I am going to grant this motion.
7
Facebook's theory is that Leader marked the
8
Leader to Leader product with the '761 patent
9
designation without having a reasonable belief
10
that this product was covered by its patent,
11
because Facebook alleges that Leader undertook no
12
analysis at all to support such a reasonable
13
belief prior to marking.
14
As both parties note, Federal Rule
15
of Civil Procedure 15(a) embodies a liberal
16
policy to allow amendment of pleadings, and I
17
find having reviewed the papers that none of the
18
reasons that are usually given for denying leave
19
to amend, none of those reasons are present here.
20
First, I find no evidence that
21
Facebook has engaged in undue delay, bad faith or
22
exercised dilatory motive with respect to the
23
filing seeking leave to amend.
24
Leader -- Facebook sought leave in a timely
I find that
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
72
1
fashion after comments were made by Leader's
2
litigation counsel and after a response to an
3
interrogatory, which seemed to Facebook to
4
provide a basis for its proposed counterclaim.
5
And even if Facebook's intent is to
6
delay, the Court is not going to let Facebook use
7
its counterclaims as a basis for delay.
8
told the parties many times, I'm trying to keep
9
this case on the fast track to the June trial
10
date.
11
As I've
And I intend to continue to make those
efforts.
12
It's also worth noting that the
13
scheduling order contemplated and permitted
14
motions for leave to amend to be filed up until
15
November 20th.
16
that I'm dealing with now was filed by Facebook
17
approximately a month prior to that deadline.
18
And the motion for leave to amend
I also find there have been no
19
repeated failures to cure deficiencies through
20
amendments.
21
amendment to a pleading by Facebook.
22
This is the first requested
Next, I find no undue prejudice to
23
Leader from granting the relief that I'm granting
24
today to Facebook.
I am going to allow for
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
73
1
expedited targeted discovery.
2
If the parties find it necessary,
3
though, I'm anticipating that any discovery on
4
this new counterclaim will be very limited given
5
that almost all, if not all, of what Leader needs
6
to support the reasonable belief that its Leader
7
to Leader product is covered by the patent,
8
almost all, if not all, of that evidence I would
9
imagine is within the control of Leader itself.
10
And, also, Facebook has represented
11
that it has already and had already through
12
October served most, if not all, of the discovery
13
it thought it would need with respect to the
14
proposed counterclaim.
15
Next, I note that the proposed
16
amendment would not be futile in reaching that
17
conclusion.
18
standard to the proposed counterclaim.
19
I applied the motion to dismiss
And taking Facebook's allegations as
20
true, I find that they do adequately allege all
21
of the elements of a false marking claim under
22
Title 35 United States Code Section 292(a).
23
24
Specifically Facebook alleges that
Leader has marked its Leader to Leader product
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
74
1
with the patent designation since November 2006,
2
and Facebook alleges that Leader lacked any
3
reasonable belief that its Leader to Leader
4
product actually practices the invention of the
5
'761 patent, because it's alleged Leader
6
undertook no analysis prior to making that
7
designation.
8
amendment is not futile.
9
So I find that the proposed
And finally, I just want to say that
10
in exercising my discretion in this manner, to
11
allow the proposed amendment, I'm exercising it
12
in just the same way I'm exercising my discretion
13
to deny the stay.
14
is most efficient for the parties, for the Court,
15
and what provides for the proper economy to all
16
relevant institutions is to keep this entire
17
dispute between the parties here in this Court
18
where it has been pending now for some time where
19
the parties and the Courts have engaged in a lot
20
of work.
21
And that my view is that what
And there's certainly no sense, it
22
would seem to me, in encouraging Facebook to
23
pursue a false marking claim in another suit,
24
particularly if it were to do so in another
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
75
1
district.
2
exercised my discretion and will be granting the
3
motion for leave to file the response, the
4
amended responsive pleading, Exhibit A.
5
So, for all those reasons, I've
We will issue an order on this
6
effect that I am granting Facebook's motion for
7
leave to amend.
8
deemed to be filed as the responsive pleading.
Exhibit A to the motion will be
9
And as I mentioned, I will provide
10
some time for limited discovery related to this
11
counterclaim, to the extent it's necessary.
12
I'm directing the parties to meet and confer and
13
to submit to the Court no later than January 15th
14
a proposed plan for limited supplemental
15
discovery related to the counterclaim that we
16
have just added.
17
And
The relief that is the proposed
18
discovery plan should not in any way impact other
19
dates in the scheduling order.
20
say, also, again, I've already said I expect
21
there to be relatively little discovery necessary
22
for either side.
23
opening the door to a full-blown
24
product-by-product comparison, though I do
I should just
I'll add, I don't believe I'm
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
76
1
anticipate it will be likely that Leader will
2
have to describe the process by which it came to
3
form the reasonable belief that Leader to Leader
4
practices the patent.
5
But I am, in the first instance,
6
going to leave it to the parties to discuss and
7
hopefully come to agreement as to precisely what
8
limited discovery will be necessary with respect
9
to this counterclaim.
10
I don't want to hear any argument on
11
either of the motions I've just ruled on, and I
12
will get an order out.
13
else that needs to be addressed at this time,
14
Mr. Andre?
15
But is there anything
MR. ANDRE:
No, thank you, Your
17
THE COURT:
And Ms. Keefe?
18
MS. KEEFE:
No, thank you, Your
THE COURT:
Okay.
16
19
Honor.
Honor.
20
21
Happy Holidays to all of you.
22
23
24
Thank you and
(Everyone said, Happy Holidays, Your
Honor.)
(Teleconference concluded at 12:28
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
77
1
p.m.)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
78
1
State of Delaware
2
)
)
)
New Castle County
3
4
5
CERTIFICATE OF REPORTER
6
7
I, Heather M. Triozzi, Registered
8
Professional Reporter, Certified Shorthand
9
Reporter, and Notary Public, do hereby certify
10
that the foregoing record, Pages 1 to 78
11
inclusive, is a true and accurate transcript of
12
my stenographic notes taken on December 23, 2009,
13
in the above-captioned matter.
14
15
IN WITNESS WHEREOF, I have hereunto
16
set my hand and seal this 30th day of December,
17
2009, at Wilmington.
18
19
20
21
Heather M. Triozzi, RPR, CSR
Cert. No. 184-PS
22
23
24
Hawkins Reporting Service
715 N. King Street - Wilmington, Delaware
302-658-6697
19801
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?