Leader Technologies Inc. v. Facebook Inc.

Filing 344

Official Transcript of Teleconference held on 04-09-10 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 5/7/2010. Redacted Transcript Deadline set for 5/17/2010. Release of Transcript Restriction set for 7/15/2010. (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
)
)
)
)
)
)

April 9, 2010
3:03 p.m.
Teleconference

BEFORE:

THE HONORABLE LEONARD P. STARK
United States District Court Magistrate

APPEARANCES:

POTTER, ANDERSON & CORROON, LLP
BY: JONATHAN A. CHOA, ESQ.
-andKING & SPALDING, LLP
BY: PAUL ANDRE, ESQ.
BY: LISA KOBIALKA, ESQ.

Counsel for Plaintiff

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

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 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

3
1
2

THE COURT:

Good afternoon.

This

is Judge Stark.

3

Who's there, please?

4

MR. CAPONI:

Good afternoon, Your

5

Honor.

For Facebook, you have Steve Caponi with

6

Blank Rome.

7

Jeffrey Norberg from Cooley Godward.

8

THE COURT:

9

MR. CHOA:

And you have Ms. Heidi Keefe and

Okay.
Good afternoon, Your

10

Honor.

For Leader Technologies, it's Jon Choa

11

from Potter, Anderson.

12

Spaulding is Paul Andre and Lisa Kobialka.

And with me from King &

13

THE COURT:

Okay.

For the record,

14

of course, this is our case of Leader

15

Technologies versus Facebook, Inc. It's our

16

Civil Action Number 08-862-JJF-LPS.

17

And the purpose of today's call is

18

there are three more discovery disputes between

19

the parties.

20

want to go through these one by one fairly

21

expeditiously.

22

I have reviewed the letters and I

So let's start first with Leader's

23

renewed request to take a deposition of a

24

Mr. Zuckerberg.

And let me hear first from

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

4
1

Leader on that one.

2
3

MR. ANDRE:

Your Honor, this is

Paul Andre and I'll be arguing for Leader.

4

I could go through and reassert

5

the arguments we made in our last call regarding

6

the subject, but I'll refrain from doing so,

7

unless Your Honor wants to hear it.

8

to point out the fact that Facebook has made our

9

case for us, to some degree, in their responsive

10

I do want

letter.

11

They moved this Court for

12

protective order asking the Court to preclude us

13

from taking the deposition of Mr. Zuckerberg.

14

But yet in their letter they want to reserve the

15

right to bring him to trial as a rebuttal

16

witness.

17

information, obviously, in their point of view.

18

He does have some relevant

That by itself shows that Mr.

19

Zuckerberg has relevant information.

20

can't discover what that is beforehand, it would

21

be extremely prejudicial to us.

22

And if we

Second point is they want to be

23

able to submit declarations both at trial and

24

obviously in their motion for summary judgment

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

5
1

regarding willfulness, once again precluding us

2

from taking discovery into a declaration

3

statement.

4

I think that it would be extremely

5

prejudicial as well.

6

relevance of this witness.

7

But they admit the

Finally, they admit that if

8

willfulness is in the case, they will make

9

Mr. Zuckerberg available for deposition, once

10

again making an implicit admission that he is

11

relevant in the case.

12

Now, I have a four-year-old son,

13

so I understand the concept of wanting to have

14

your cake and eat it, too.

15

legal principle, Your Honor.

16

It's not a sound

So what we're asking for is either

17

to abide by the proposed stipulation that we

18

gave them, which means that Mr. Zuckerberg's

19

previous sworn testimony is admissible as in

20

this case, and he is not allowed to sandbag us

21

by putting in declarations or standing for

22

trial.

23

declarations.

24

And also we have to stipulate to some

We could authenticate with

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

6
1

Mr. Zuckerberg before they make him available

2

for testimony in deposition.

3
4

THE COURT:

Let me

hear from Facebook, please.

5
6

All right.

MS. KEEFE:

Sure.

Thank you, Your

Honor.

7

The first point is simply that the

8

proposal that was given to us in order to try to

9

resolve this, while we really appreciate the

10

efforts that both parties were going to try to

11

do, this always included things that we couldn't

12

agreed to.

13

anything.

14

There's no -- we never agreed to

In asking that Mr. Zuckerberg's

15

prior testimony be used as though it was given

16

in this case, they also asked for a number of

17

documents to be stipulated to that no one would

18

be able to authenticate from third parties.

19

so that just made that offer untenable.

20

And

What we counter propose is if they

21

wanted to use Mr. Zuckerberg's deposition

22

testimony, which we said might be okay, we

23

simply wanted to be able to have the counter,

24

which is the declaration that we proposed --

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

7
1

sorry, that we submitted to Your Honor where

2

Mr. Zuckerberg said he never heard of these

3

things.

If that doesn't work, that's okay.

4

Our second proposal was given that

5

there seems to be this issue of wanting to be

6

able to talk about Mr. Zuckerberg, we proposed

7

that we will move for summary judgment not using

8

a declaration from Mr. Zuckerberg, not putting

9

his testimony at issue, solely on the law that

10

there has been no evidence which could establish

11

a case of willfulness, and therefore, would make

12

all issues regarding Mr. Zuckerberg irrelevant

13

and immaterial.

14

If that motion were to be granted,

15

this would seem to be a moot issue, and

16

therefore, under Apex, it would be nothing more

17

than harassment to Mr. Zuckerberg to sit for a

18

deposition.

19
20
21

So all we are really asking is put
a pin in that issue.

Let that motion be heard.

If the Court determines that the

22

issues of the willfulness and/or copying are

23

still in the case, then we would propose to

24

allow Mr. Zuckerberg to sit for a very limited

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

8
1

deposition, so that both parties know what's

2

going to happen at trial.

3

hand, the motion is granted and the issues of

4

willfulness and copying are out of the case,

5

then there's nothing left for Mr. Zuckerberg to

6

talk about.

7

THE COURT:

If, on the other

Go back to your first

8

compromise or maybe it was your second

9

compromise offer, Ms. Keefe.

10

I forget.

There was something about you

11

would agree to a deposition as long as you could

12

also use Mr. Zuckerberg's declaration or -- I'm

13

not sure I understand that.

14

MS. KEEFE:

Oh, no.

One of the

15

proposals that Leader has made is that they

16

would be willing to not take Mr. Zuckerberg's

17

deposition in this case if we agreed to allow

18

the portions of the transcripts of depositions

19

from prior cases that we produced in this case

20

be used as though they were taken in this case.

21

We said if we were to agree to

22

that, what we would want is simply to have

23

Mr. Zuckerberg's declaration that was submitted

24

to the Court in support of the motion for

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

9
1

protective order to be allowed into evidence as

2

well, so that Mr. Zuckerberg's statement that he

3

had never seen the Leader White paper would also

4

be in evidence.

5

THE COURT:

Right.

But you're not

6

asking, under that compromise, for the ability

7

to submit additional declarations or to hold on

8

to Mr. Zuckerberg as a possible rebuttal witness

9

or --

10

MS. KEEFE:

I am not.

I am not.

11

I'm just making certain that there

12

is a statement from Mr. Zuckerberg to counter

13

the inference that we think they would try to

14

make from those other deposition testimonies

15

that he copied something.

16

we're able to use the declaration that we

17

submitted to Your Honor in support of the Apex

18

depositions, we would not be seeking to add

19

additional testimony from Mr. Zuckerberg.

20

THE COURT:

And so as long as

Okay.

Mr. Andre,

21

start on your response with what's wrong with

22

that compromise.

23

Mr. Zuckerberg.

24

declaration that he filed in this case, and

You get the prior testimony of
They get just that short

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

10
1

nobody has to worry about surprise, or further

2

testimony or declarations from Mr. Zuckerberg.

3

MR. ANDRE:

Well, Your Honor, the

4

previous testimony in the case is sworn

5

deposition testimony.

6

even without stipulation.

7

any type of evidentiary fight to trial.

8
9
10
11

I believe I can get it
I just want to avoid

So it is sworn testimony and the
declaration is hearsay.

It contradicts the

sworn testimony.
And to the extent it does

12

contradict, that's actually the reason to allow

13

him to be deposed, for one, him saying in sworn

14

testimony under oath that he relied on source

15

material, but he doesn't remember what it is.

16

And then have him come in and contradict that

17

with a sworn declaration, which we cannot test

18

the voracity of, say, I remember it wasn't that.

19

Oh, I swear it wasn't the White paper.

20

know what it is.

I don't

21

So to me this actually sets up the

22

fact that his testimony is more needed if we're

23

allowing that sort of hearsay in.

24

THE COURT:

All right.

And that,

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

11
1

in part, answers the next question, but other

2

than on willfulness, is there anything that at

3

this point you assert that Mr. Zuckerberg is

4

relevant with respect to and, you know, none of

5

the other witnesses that you've deposed were

6

able to give you the evidence?

7

MR. ANDRE:

Well, what we have,

8

the infringement issue, Your Honor, that several

9

of the witnesses have identified Mr. Zuckerberg

10

as the individual who led the design and

11

development of some of the core technology that

12

we're alleging infringed today.

13

The reason it may be, certain

14

implementation of the technology was based on

15

Mr. Zuckerberg himself.

16

They cite that in the documents we

17

produced in this case or related to this hearing

18

that he actually is the lead designer.

19

head of design and development of this core

20

technology.

21

He's the

They just redesigned the website

22

in February of this year.

23

charge of that.

24

Presumably he was in

So the infringement is very

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

12
1

important in this case.

And we think he has a

2

lot of relevant information that other witnesses

3

have said that he has unique knowledge of.

4

THE COURT:

Okay.

5

MR. ANDRE:

And as well, Your

6

Honor, with respect to certain documents, we've

7

asked for authentication of these documents.

8
9
10
11

He is the only individual who can
authenticate certain documents.

We've attached

those to our brief.
There are some documents that only

12

he can attach -- only he can authenticate as

13

well as the statements that he gave in

14

interviews, which are admissions of the party

15

which may be able to get in over the hearsay

16

rule as an exception to hearsay.

17

But nonetheless, to the extent I

18

could take a deposition on those statements he

19

made in numerous interviews and have that in a

20

deposition context, I believe it would be easier

21

to get that into evidence.

22

infringement, damages and willfulness.

And those relate to

23

THE COURT:

Okay.

Thank you.

24

I'm going to rule on this at this

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

13
1

point.

And I am going to grant Leader the

2

opportunity to take a deposition of

3

Mr. Zuckerberg not to exceed three hours.

4

persuaded that there's at least enough of a

5

showing that there may be testimony that

6

Mr. Zuckerberg has that Leader was not able to

7

get from the others that it has deposed.

8

I am

And in particular, the alleged

9

discrepancy between the declaration and prior

10

deposition testimony and prior understandings,

11

at least let's say that Leader has as to how it

12

believes and how it alleges the Facebook program

13

was put together.

14

I think that such evidence would

15

be relevant.

16

accommodated Mr. Zuckerberg's role in the

17

company and his schedule by going through all

18

the other steps of the discovery before asking

19

him, directing him to sit down for a deposition.

20

It will be a limited short deposition, as I

21

said.

22

I think that we have all

I hope it will be done within a

23

time frame that can accommodate Mr. Zuckerberg's

24

busy schedule, but it must also accommodate the

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

14
1

busy schedule of the Court, and in particular

2

the schedule that is imposed in this case.

3

And so that is another reason that

4

I'm rejecting the proposed compromise of

5

Facebook, which would have the deposition take

6

place sometime down the road.

7

If a forthcoming motion for

8

summary judgment is denied, I think given how

9

this case has proceeded, and particularly the

10

many, many discovery disputes that there have

11

been and the many, many disagreements we've had

12

as to what type of schedule this will proceed

13

on, and all the efforts we've made to try to

14

keep this case on track for the trial that's

15

upcoming, I'm just not inclined to put off some

16

discovery until after a motion and make it

17

contingent on how a particular motion may be

18

ruled on.

19

It will be neater, cleaner and

20

ultimately more efficient to finish up with the

21

discovery, and then deal with motions and then

22

get to trial.

23
24

So that's my ruling on Leader's
request for the deposition of Mr. Zuckerberg.

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

15
1

Let's move on to the other issues,

2

both of which are Facebook issues.

3

to deal first with the request with respect to

4

the recently produced non-disclosure agreements.

5

So let me hear first from Facebook on that one,

6

please.

7
8
9

MS. KEEFE:

And I want

Thank you, Your Honor.

This is Heidi Keefe.
With respect to the NDAs, the last

10

produced NDA, we think it actually boils down to

11

a simple matter of decisions made by Leader.

12

Early in the case, despite the fact that there

13

were document requests produced by -- propounded

14

by Facebook that would have called for these

15

documents, Leader made the conscious decision

16

not to produce these documents.

17

There were also subsequent

18

document requests, which would have called for

19

these documents.

20

conscious decision not to produce them.

21

And again, Leader made a

Only after it became clear through

22

testimony given by Mr. McKibben in his

23

deposition that Leader might need these

24

documents to help the case and support the case

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

16
1

did Leader make the decision to finally produce

2

them.

3

Now, we asked Leader, Well, that's

4

post-discovery and, you know, are you intending

5

to use all of these documents?

6

said that it absolutely would not rely on these

7

documents in any way or allude to them at trial

8

in any way, we may not have had an issue.

9

instead Leader said that they absolutely did

If Leader had

But

10

intend to use these documents, these late

11

produced documents for which no discovery has

12

taken place in defense of their case.

13

As a result, Your Honor, we're

14

left hamstrung because we haven't been able to

15

conduct discovery into these documents.

16

these are all documents which directly affect

17

case dispositive issues regarding validity in

18

terms of on-sale bars or whether disclosures of

19

the patented technology were public or

20

non-public.

21

THE COURT:

And

Let's take a step

22

back, Ms. Keefe.

You say that these documents

23

were responsive to document requests?

24

MS. KEEFE:

Yes.

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

17
1

THE COURT:

Your letter says

2

there's 11 of them that it's responsive to.

3

Point me to your best one or two that you think

4

that these NDAs were responsive to.

5

MS. KEEFE:

I'd be happy to, Your

6

Honor.

I think that there are three that make

7

our case very, very cleanly.

8

In the very, very first set of

9

document requests propounded, I would point Your

10

Honor to Document Request Number 7, which is all

11

documents that refer or relate to the validity

12

and/or enforceability of the '761 patent.

13

Everyone who's ever litigated a patent case

14

knows that prior public disclosures or the

15

non-publicness of a disclosure or prior offer

16

for sale are directly related to the validity of

17

the patent.

18

issue.

19

And these NDAs go directly to that

I would also point Your Honor to

20

Request for Production Number 18, which is all

21

documents that refer or relate to any research,

22

design, development, testing, and I think this

23

is the most important one, evaluation,

24

production or sales of any product, device,

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

18
1

technology system, et cetera, that allegedly

2

uses or embodies, in whole or in part, any

3

alleged invention subscribed by the patent.

4

And here I would say that what

5

Leader even says is that these NDAs were used

6

with potential customers or even investors so

7

that they could demonstrate their products to

8

them for evaluation in whether they would invest

9

in a company or buy the product.

10
11

And so clearly

they'd be responsive to Request Number 18.
And then, finally, Your Honor, I

12

would point you to Document Request for

13

Production Number 74, which was in Facebook's

14

second request for production which specifically

15

asked for documents sufficient to identify every

16

third party who participated in any testing or

17

evaluation of Leader to Leader.

18

And clearly, this would also have

19

been -- if they had given up the list of every

20

single name or if they produced the NDAs

21

themselves, we would have been able to conduct

22

discovery into those demonstrations if we had

23

the responses to those as well.

24

THE COURT:

All right.

So then

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

19
1

what follows is interrogatories from Leader

2

saying disclose to us what your theories are of

3

invalidity.

4

asserted in your responses to those

5

interrogatories as a basis for invalidity that

6

there was some sort of a public display of the

7

product prior to the patent.

8
9

And they assert that you have never

Is that, in fact, an accurate
portrayal of what happened?

And also, if it is,

10

why doesn't your response to the interrogatory,

11

you know, modify the scope of what's responsive

12

to those document requests?

13

MS. KEEFE:

Well, I think, Your

14

Honor, I'll take that in a couple of steps.

15

think the first thing that we have to look back

16

to is the operative pleadings in the case and

17

the operative pleadings we have always pled that

18

the patents are invalid under Section 102, which

19

includes prior uses, prior offers for sale and

20

demonstrations.

21

I

In order to sure up our good faith

22

belief that there had been these types of

23

demonstrations and offers for sale, we asked for

24

the early discovery hoping to receive these very

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

20
1

types of documents.

2

Had we received these documents

3

and been able to conduct discovery into these

4

prior use and public demonstration and offers

5

for sale, perhaps we would have, at that point,

6

been able to amend our interrogatory responses

7

to include that.

8

parties have actually been supplementing

9

interrogatory responses as they continue to find

10

As Your Honor knows, both

new information.

11

In fact, Leader just did a couple

12

of -- they did one of them yesterday and one

13

last week to alter the stage of what's going on

14

in this case.

15

They are correct that we do not

16

have specific allegations regarding specific

17

offers for sale or public demonstrations in our

18

current interrogatory responses.

19

absolutely happy to do so and put one in now.

20

I am

Because we only became aware of

21

all of the facts that could make this completely

22

relevant following deposition.

23

Leader what date they believed was the operative

24

critical date for the patent.

We also asked

They always

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

21
1

asserted that it was the earliest possible date.

2

Only during depositions of Mr.

3

Lamb did we find out that Leader itself also did

4

not have support for relying on that earlier

5

date, which then opened up another year window

6

in terms of public use and offers for sale.

7

We also found out during the

8

deposition of Mr. McKibben that the parties have

9

a differing opinion on what an offer for sale

10

might entail and what they consider to be public

11

demonstrations.

12

interrogatory responses to reflect information

13

that we did not have that was solely within

14

their discretion and their ability to produce

15

and then blaming us for the lack of production

16

seems very circular, Your Honor.

17

So asking us to modify our

THE COURT:

On the merits, if we

18

get there of a defense of invalidity based on

19

public display or on sale, what would you have

20

to show?

21

Would just one showing without

22

protection by an NDA lead potentially to

23

invalidity of the patent or do you need to show

24

something more than that?

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

22
1

MS. KEEFE:

Your Honor, all of the

2

situations are very fact dependent, but any

3

individual offer for sale, whether or not there

4

was an NDA or any public disclosure prior to the

5

critical date could serve to invalidate the

6

patent.

7

Now, the reason that I'm not

8

willing to say anyone is fine and so as long as

9

I have evidence of one I should be happy and I

10

shouldn't be looking into evidence of others,

11

because for every single one, Leader may have

12

different arguments about.

13

case it wasn't really public because of all of

14

these other factors.

15

Well, but in this

And so if we had, for example, a

16

bulk of up to 1,200 times that they did

17

demonstrations and each time they also said,

18

Hey, if you want to buy it it's okay, you can

19

see that the weight of that evidence would be

20

extremely persuasive.

21

And we also learned during

22

depositions that there may have been times where

23

even though there is an NDA signed, that Leader

24

had sent information to those people prior to

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

23
1

the signing of the NDA kind of excited about

2

getting things going.

3

The only way we would ever know

4

that that happened would be to be able to talk

5

to the people who are listed in those NDAs and

6

to disclose that.

7

THE COURT:

And you specifically

8

say you know of one instance or I guess where a

9

third party received the technology before

10

signing of an NDA; is that right?

11

MS. KEEFE:

Well, for example,

12

Your Honor, in the case of the other NDAs that

13

help, we had already been talking quite a bit

14

about in terms of Northwater, we know that

15

Leader sent documents to Northwater based on

16

Northwater's own testimony before any NDA was

17

sent, even though they had been discussing the

18

fact that they might want to go into an NDA.

19

So we know that there have been

20

times where information was sent prior to an NDA

21

being signed.

22
23
24

THE COURT:

Okay.

Anything else

you want to add on this topic, Ms. Keefe?
MS. KEEFE:

No.

I think -- I

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

24
1

think, Your Honor, though, that the overwhelming

2

importance of these documents and the fact that

3

it was Leader's choice not to produce them until

4

they decided that they might help them really

5

highlights how important these documents are,

6

and how important it is for us to be allowed to

7

conduct discovery into them, to the extent that

8

the Court determines that these documents can be

9

used in this case in any fashion.

10

THE COURT:

All right.

Mr. Andre.

11

MR. ANDRE:

Your Honor, the

12

requests for production that Ms. Keefe talks

13

about simply are not specific enough to ask for

14

NDAs that were provided to investors.

15

NDAs were signed, not because there was any

16

evidence they were demonstrating the product,

17

but because the company was overly cautious

18

about talking about investing in the company at

19

all.

20

These

And that's all the evidence shows.
The testimony that they received

21

from Mr. McKibben was unequivocal that they

22

signed NDAs with everybody before they talked

23

about anything to do with the company.

24

not about demonstration or anything like that.

This was

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

25
1

When they talk about the one NDA

2

that they allege was signed after the fact, the

3

Northwater, that was well after the patent

4

issued.

5

documents that they intend to rely upon or could

6

possibly rely upon for this defense of a public

7

disclosure were produced to them at least eight

8

months ago and in many cases a year ago.

9

The fact of the matter is that all the

We know this because they have a

10

current motion pending to add in a claim of

11

inequitable conduct in which we cite the

12

document they are going to rely upon based on

13

this public disclosure based on these documents.

14

Those were documents that were produced over

15

eight months ago --

16

THE COURT:

Mr. --

17

MR. ANDRE:

-- that they never

18
19

alleged this as a defense.
THE COURT:

Mr. Andre, let me just

20

stop you there for a minute.

21

representing that any NDA that related to a

22

public display of the technology was produced to

23

Facebook long before this recent production?

24

MR. ANDRE:

Are you

No, Your Honor.

What

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

26
1

we're saying is the documents they rely upon,

2

they would like to rely upon for their

3

affirmative defense.

4

that we would use them, would be for a defense

5

against public disclosure.

6

The NDAs, to the extent

This would be -- this would be

7

Leader using it as a defense to their claim of a

8

public disclosure.

9

of public disclosure ever in this case.

10

They've never made a claim

And to this day, we're sitting

11

here today.

We don't have any interrogatory

12

responses.

No responses to interrogatories.

13

Five times regarding invalidity,

14

they've responded.

15

the patent is invalid based on public

16

disclosure.

17

They've never asserted that

THE COURT:

Right.

But let me --

18

I just want to try to understand better what it

19

is that you produced recently.

20

you produced 2,338 non-disclosure agreements on

21

March 9th.

22

Is that correct?

23

MR. ANDRE:

Facebook says

24

That's correct, Your

Honor.

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

27
1

THE COURT:

And are you able to

2

say what number even approximately of those

3

non-disclosure agreements were executed in

4

connection with what would otherwise be a public

5

display of the technology?

6

MR. ANDRE:

Based on the documents

7

they put forward in their proposed case and what

8

we've seen, less than a dozen.

9

we do not intend to use those documents at trial

10

as long as they don't try to put on a defense of

11

a public disclosure which they have not done so

12

at this point.

13

THE COURT:

And, Your Honor,

All right.

But if

14

they decide to put on a defense of public

15

disclosure, wouldn't the 12 or thereabouts that

16

relate to a disclosure which you'll say was not

17

public and they'll say maybe was public or at

18

least they want to test it, wouldn't that body

19

of 12 be relevant?

20
21
22

MR. ANDRE:
point, Your Honor.

They would at that

That's correct.

THE COURT:

So if that's the case,

23

then I mean what Ms. Keefe says is they were

24

entitled to know that there were those 12 or so.

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

28
1

So they could determine whether to -- you know,

2

to test them through some type of discovery and

3

to evaluate whether or not they thought they had

4

a good faith basis to assert this defense.

5

MR. ANDRE:

Your Honor, we've

6

produced hundreds and hundreds of pages,

7

documents in which we informed Facebook and with

8

those documents that we had this NDA policy that

9

you see some of those attached as exhibits to

10

our documents.

11

We told Facebook through our

12

documents that we had this.

13

us, investors, or vendors or anybody, that we

14

signed NDAs.

15

NDAs.

16

If anyone talked to

They never once asked us for these

All the communications with the

17

third parties were actually produced.

18

produced all of our communications that they

19

could rely upon.

20

So we

Now, their document requests are

21

so overbroad.

I mean, first of all, they ask us

22

for any documents that would relate to the

23

invalidity of the patent.

24

were any documents that make our patent invalid.

We don't think there

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

29
1

So it's one of these kind of Catch

2

22's.

They asked about the document request.

3

They singled out, asked about third parties who

4

tested or evaluated.

5

We've provided all those documents

6

to those individuals.

7

bring any issues about NDAs, they got fair

8

notice of them.

9

they were asking Mr. McKibben about NDAs.

10

To the extent they would

When we were at deposition,

He said it's the policy they sign

11

NDAs with everybody.

12

have those?

13

asked for them.

14

They said, Well, do you

He said, Yes, we do.

And they

We produced them immediately.

THE COURT:

Have you identified

15

which of the 2,338 that -- the 12 or so of them

16

relate to a display of the technology, have you

17

identified those for Facebook?

18

MR. ANDRE:

Your Honor, let's put

19

it this way:

We've given them the underlying

20

documents that would permit them to determine

21

where a display was made and they asked our

22

witnesses on them.

23

THE COURT:

Okay.

24

MR. ANDRE:

They have the

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

30
1

information of when we made a demonstration of

2

our product.

They have that information.

3

We provided all that information.

4

Whenever we demonstrated it, we gave them that

5

information.

6

So all you have to do is

7

extrapolate back and say, Well, if you want to

8

see the NDA for that demonstration, it's easy

9

enough to find.

They've identified three

10

parties that they believe we gave a public

11

demonstration to.

12

I believe it was three parties in

13

their proposed amendment for their -- the

14

pleadings.

15

identify those three.

16

than 12.

And in each one of those, we can
They're probably less

I said no more than 12 as an estimate.

17

THE COURT:

All right.

And you

18

also offered to put Mr. McKibben up for further

19

deposition; is that right?

20

MR. ANDRE:

Your Honor, what we

21

told them was we have a mediation in this case

22

on Monday.

23

California.

24

And Mr. McKibben is out here in

I said if you want to take him for

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

31
1

a couple hours in our office and talk to him

2

about this, he gave just three answers about his

3

NDAs, how that was policy, we would make him

4

available if that would satisfy them.

5

We asked them to have the same

6

consideration for us and that was rejected.

7

They want to open up discovery and basically

8

push off the trial date again.

9

is about.

10
11

THE COURT:

Okay.

That's all this

Anything else

you want to add, Mr. Andre?

12

MR. ANDRE:

Just the fact that in

13

the two different interrogatories where you

14

asked for their basis for invalidity, they have

15

said five responses to those.

16

response, two supplemental interrogatories, 4,

17

and the original response and supplemental to

18

Interrogatory 18.

19

ever allege public disclosure.

The original

And in none of those did they

20

THE COURT:

21

Ms. Keefe.

22

MS. KEEFE:

Okay.

Thank you.

A couple things, Your

23

Honor.

The first is that I find it difficult to

24

believe that there's only 12 that received

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

32
1

demonstrations of these -- of the product given

2

the fact that a number of the names that we had

3

never seen before are accompanied in Lobo

4

Dynamics, Onedentist.com, We Square Software,

5

Value City department stores.

6

These are all names that we had

7

never heard of that had never shown up anywhere

8

in their prior production in any fashion or

9

form.

10

So we couldn't have possibly known

11

that these were there in order to ask, Where is

12

the NDA?

13

have some evidence perhaps that there had been a

14

public demonstration like the Ohio Police

15

Department, that's actually how we found out

16

that these NDAs existed.

17

Similarly, for the ones that we did

We asked Mr. McKibben about his

18

demonstration to the police department and he

19

said, Well, if he had done one, it would have

20

been with an NDA.

21

And only by us asking right then,

22

Well, does that NDA exist, was it produced.

23

was produced late.

24

It

I'd like to be able to ask the

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

33
1

Ohio Police Department during that

2

demonstration, during the verbal communication

3

that you were having, did Mr. McKibben offer to

4

sell you the product?

5

Mr. McKibben's memory of the conversation or

6

what was disclosed or displayed is not enough.

7

And simply having

We'd also need to be able to ask

8

the Ohio Police Department and, frankly, anyone

9

else who had received a demonstration whether or

10

not they were also offered a sale of the

11

product, whether or not there was a document

12

that was produced regarding those sales.

13

So this issue is quite a bit

14

broader than Mr. Andre wants it to be.

And in

15

fact, does involve the possibility of numerous

16

invalidating pieces, especially the offers for

17

sale that may not be reflected in documents

18

whether or not they were produced.

19

Similarly, Your Honor, I don't

20

understand how a document request asking to

21

identify every third party who had evaluated

22

Leader to Leader doesn't ask for this exact

23

information, and yet we did not receive it in

24

response to that.

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

34
1

Regarding back to the issue of the

2

interrogatory, if what Mr. Andre wants is an

3

interrogatory response that says that I am going

4

to use public disclosure and on-sale bar in this

5

case, I'm happy to give it to him.

6

But he's known that that issue is

7

in this case.

8

discovery regarding those issues throughout this

9

case.

10

The parties have been conducting

So, Your Honor, we're extremely

11

hamstrung right now without being able to probe

12

into this large, large number of NDAs to

13

determine which one shows Leader to Leader,

14

which of those people potentially received an

15

offer for sale, whether verbal or in writing,

16

and maybe they have documents or they kept

17

documents that Leader doesn't have anymore.

18

we have a right to look into that.

19

THE COURT:

And

Ms. Keefe, is it

20

correct that you have documents now for which

21

you could identify the approximately 12 NDAs

22

that relate to a display of the technology?

23
24

MS. KEEFE:
Honor.

Absolutely not, Your

What we have are the NDAs themselves

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

35
1

from my reading of those NDAs.

2

possible that every single one of those people

3

received a demonstration of the Leader to Leader

4

product.

5

It is entirely

For example, most of them, and

6

Mr. Andre makes the point that they made their

7

employees sign them.

8

them.

9

They made vendors sign

But I don't understand how

10

Onedentist.com, for example, could be a vendor

11

or an employee leading me to believe that

12

Onedentist.com received a demonstration of the

13

Leader to Leader product.

14

Mr. Andre also tried to mention

15

somewhere in one of the letters that perhaps

16

these NDAs went to other products and not to

17

Leader to Leader.

18

Leader had, Leader Phone and Leader Alert were

19

public and publicly assessable products, for

20

which an NDA wouldn't have been necessary.

21

But the other products that

So we cannot determine from the

22

face of the NDAs who received a demonstration of

23

Leader to Leader.

24

that they all did the things that I would be

Instead, we have to assume

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

36
1

willing to do and that I've already started to

2

do to try to narrow down who we would need to

3

talk to was that I started looking only for

4

company names, and I started trying to do the

5

guesswork of figuring out who doesn't look --

6

even though it's a company, it looks more like

7

an investor than a company that might have been

8

given an offer of sale.

9

documents simply don't help us.

10

THE COURT:

But the face of the

Mr. Andre, how quickly

11

could you provide Ms. Keefe the information that

12

would tell her, you know, the approximately 12

13

NDAs out of the more than 2,000 that relate to a

14

display?

15

MR. ANDRE:

Your Honor, I don't

16

know that.

17

demonstrated the product on a very limited

18

basis.

19

time period before the product was even ready to

20

be demonstrated, because it - obviously, we were

21

trying to -- we have over 500 investors in this

22

company.

23

a lot of small investors.

24

I mean, we think that we've

And most of these NDAs relate to the

It is a small company.

It deals with

So the documents that we could

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

37
1

identify that would show that there was a

2

demonstration of the Leader to Leader product,

3

we could probably get that done in a matter of a

4

few days.

5

And these documents they've had

6

for at least eight months and in many cases over

7

a year.

8

claim that they're talking about.

9

our burden here.

And once again, this is an unasserted

10

This is not

This is something that they have

11

never alleged.

12

Department.

13

They talk about the Ohio Police

The reason they know about the

14

Ohio Police Department is because we provided

15

the underlying document, which we said, We're

16

going to give a demonstration to the Ohio Police

17

Department on this day.

18

and they've had that for eight months to a year.

19

THE COURT:

They have that already

All right.

20

here's what we're going to do.

21

Well,

definitely a messy situation.

22

This is

What we're going to do is I'm

23

ordering -- first off, I'm denying the request

24

to exclude all of these late produced NDAs.

I

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

38
1

don't see a basis today to act so broadly and

2

say that they are excluded from any use in the

3

remainder of this case.

4

But I am going to direct and am

5

hereby directing that Leader produce to Facebook

6

by the end of the day Tuesday information or

7

evidence sufficient to identify and to establish

8

the back up, I guess, the representation that

9

Mr. Andre has made here that out of the 2,338

10

recently produced non-disclosure agreements, no

11

more than something on the order of 12 of them

12

relate to a display or demonstration of the

13

technology.

14

I'm also ordering that if Facebook

15

wants to take an additional deposition of

16

Mr. McKibben with respect to the recently

17

produced NDAs, they are permitted to do that.

18

And they may want to wait until after they get

19

this further information on Tuesday.

20

Finally, I'm ordering that if

21

Facebook is going to attempt to assert as a

22

defense the basis of a public display, or

23

demonstration or on-sale bar, they should

24

supplement their interrogatory responses to make

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

39
1

that assertion clear.

2

within ten days of today if they are going to do

3

that.

4

And they should do that

Beyond that, I'm going to hope

5

that the parties can work out the remainder of

6

what to do about this issue.

7

you'll bring it back to me.

8
9

And if not, then

Let me move on to the final issue
which has to do with the aerata sheet in

10

relation to a deposition of Mr. Jeffrey Lamb.

11

Let me hear from Facebook on that, please.

12
13

MR. CAPONI:
Caponi.

14

Your Honor, Steve

I'm going to handle this argument.
The issue, Your Honor, is pretty

15

straight forward.

16

one of the inventors on the technology at issue

17

here.

18

Mr. Lamb was a co-inventor,

And one of the core issues in this

19

case is LTI, its effort to have the patent

20

relate back to the provisional application.

21

as Your Honor knows, one of the touchstones of

22

that is you've got to make sure that everything

23

that's in your -- the issued patent can be found

24

in the provisional application.

And

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

40
1

Mr. Lamb was subjected to some

2

very specific questioning on that front,

3

particularly, Your Honor, with respect to the

4

word tracking and the tracking feature, that's

5

at issue in this case.

6

With respect to each one of the

7

questions, which essentially Your Honor, to

8

paraphrase was okay, show us -- here's the

9

application.

10

Here's the code that was in the

provisional application.

11

Is tracking in there?

12

where is it?

13

If it is,

in the code?

14

Do you see tracking here, there or

His answer was always essentially

15

a no.

Following the deposition and at the

16

deposition, Your Honor -- at the conclusion of

17

the deposition, it was very clear to all the

18

parties the import of that testimony.

19

It's keyed up for summary judgment

20

the issue of whether or not LTI could claim the

21

provisional patent date.

22

this testimony, they essentially would be

23

precluded from doing so.

24

And as a result of

In the parties' discussions

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

41
1

following the deposition and in Mr. McKibben's

2

deposition, Facebook made it very clear it was

3

going to be moving on that ground, in light of

4

the testimony plus some other information.

5

That then resulted in this errata

6

sheet coming in.

7

Honor, is submitted for a couple of reasons.

8
9

And the errata sheet, Your

One is the only changes that were
made in this errata sheet go to the questions

10

pertaining to tracking.

11

changes takes the answer from a no to a yes.

12

And the way it does it, Your Honor, is very

13

crafty wordsmithing by using the word just.

14

And each one of the

And so they throw just in front of

15

the word tracking in a number of these answers

16

and essentially what you get to as an example,

17

if you get pulled over by a police officer, and

18

he says, Did you run that red light?

19

would say, No.

20
21
22

Okay.

And you

That means you didn't run

the red light.
But if you throw just in front of

23

it, did you run the red light?

24

just run the red light.

No, I did not

You're now saying, Yes,

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

42
1

I ran the red light and I did some other things.

2

Maybe I was drinking.

3

Maybe I was on my cell phone.

4

Maybe I hit somebody.

So this inclusion of the word just

5

is not an innocuous clarification.

6

yes to a no.

7

an effort to fight off the pending motion for

8

summary judgment.

9

It changes a

A no to a yes, which was done in

Your Honor, Mr. Lamb is not just a

10

third party who received his transcript and made

11

these changes.

12

LTI.

13

He's represented by counsel for

We think it's noteworthy that with

14

assistance of counsel, these changes were made

15

on an issue that was teed up for summary

16

judgment and that goes to the heart of this

17

case.

18

Your Honor, the ability to claim

19

the provisional patent application date is very

20

significant as Ms. Keefe indicated earlier with

21

respect to public demonstrations and offers for

22

sale, et cetera.

23
24

A number of things occurred in
that one-year time period which we believe can

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

43
1

be dispositive of this case.

2

think the arguments that LTI makes to this Court

3

that it lacks jurisdiction are not well founded.

4

The rules as to why you would go to Ohio, Your

5

Honor, deal with personal jurisdiction.

6

Your Honor, I

How a Court or how a party gets a

7

Court to compel someone to show up at a

8

particular date, time for a deposition, whether

9

you're in Federal Court or you are in State

10

Court doing an out-of-state deposition to obtain

11

control of the person, you need the assistance

12

of a Court via the person.

13

itself is a completely different matter and the

14

conduct of the deposition is a different matter.

15

That always rests with this Court, Your Honor.

The deposition

16

As Your Honor is aware, in this

17

case we were taking a deposition in Ohio and

18

there was a dispute regarding the conduct of

19

counsel, improper objections, coaching the

20

witness, et cetera.

21

would have called Your Honor to say, We have a

22

situation.

23

Ohio.

24

You get on the phone.

We

We would not have gone to a Court in

This Court also always has control

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

44
1

over how a deposition is used in the trial in

2

which it has jurisdiction.

3

we're talking about.

4

And that's what

We want this errata sheet with the

5

substantive change, we think it's an improper

6

change.

7

this district have held and we cited the cases,

8

the deposition is not a take-home exam.

9

are not innocuous changes.

10

And as Judge Sleet and other judges in

These

Your Honor, so I think this Court

11

has the jurisdiction.

12

should not be permitted to be changed.

13

already been made clear to us that Mr. Lamb does

14

not intend to show up at trial, which means

15

Facebook walked out of a deposition having

16

clear-cut answers to very important questions.

17

We think the errata sheet
It's

And through an errata sheet is

18

deprived of those answers and has no ability to

19

compel Mr. Lamb to appear at trial.

20

control of Mr. Andre and LTI, and they've

21

indicated he's not going to appear.

22

He's in the

Your Honor, that's the crux of it.

23

We think a fall-back position, which we don't

24

think is necessary here, we think the errata

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

45
1

sheet should be excluded, would be to open

2

Mr. Lamb up for another deposition.

3

The cases cited by LTI in the Ohio

4

case provide that relief.

5

counsel for the witness here, it would be LTI,

6

pay the expense of travel and the time for the

7

lawyers to take that deposition.

8
9

They made, the

And Your Honor, crucially on that
point, the cases hold and we think it's

10

important here is the opportunity to explore

11

"where the changes originated".

12

Lamb is offered up for a deposition, and we've

13

made this clear to LTI, and they reject the

14

notion, that Facebook should have the

15

opportunity to inquire as to why the change was

16

made, where it originated.

17

include communications Mr. Lamb had with his

18

counsel.

19

We think if Mr.

And that would

And, Your Honor, we think that's

20

important, because, A, as indicated by the cases

21

in Ohio, it's an appropriate remedy.

22

And, B, in Delaware, as Your

23

Honor's aware, when the witnesses are under

24

oath, even at a break at lunch, or dinner or

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

46
1

coming in the next day, any communications they

2

have with counsel regarding the substance matter

3

of the deposition are not protected by

4

privilege.

5

We think that same logic applies

6

to any changes to the testimony to an errata

7

sheet.

8

because it substantively changes the deposition.

9

Your Honor, that's my presentation, unless you

10

It's no different than a lunch break

have any questions.

11
12

THE COURT:
Leader, please.

13
14
15

Let me hear from

MR. ANDRE:
Paul Andre.

Your Honor, this is

I'll be arguing for Leader.
Let me just clarify some

16

misstatements Mr. Caponi made.

17

independent third party.

18

control for sure and definitely not under Leader

19

Technologies' control.

20

Mr. Lamb is an

He's not under my

He was subpoenaed by Facebook from

21

the Southern District of Ohio.

22

any allegations or assertions that he will not

23

show up at trial.

24

We've never made

To be frank, we don't know.

Mr. Lamb is in the process of

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

47
1

getting married right now.

2

doesn't want to deal with this case, to be quite

3

frank.

4

And he really

That's where we stand at this

5

point.

We will try to endeavor to get him to

6

come to trial, but we just don't know at this

7

point.

8

Going through the issues that were

9

raised, one thing that Facebook doesn't address

10

is this is an evidentiary issue, not a discovery

11

dispute.

12

even be dealing with it in this form.

13

So we don't think it's appropriate to

Even if it were, and they don't

14

mention this at all, they stipulated to

15

Mr. Lamb's right to submit an errata.

16

specifically told him that he was permitted to

17

do so and asked him if he understood.

18

They

We put this in our letter.

Mr.

19

Lamb agreed that he would be willing, he would

20

submit.

21

did so.

22

He thought it was necessary and so he

At this point, Facebook is

23

estopped from complaining of Mr. Lamb doing

24

exactly what the parties agreed that he could

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

48
1

do.

2

Third, the issue, when we talk

3

about the jurisdiction over Mr. Lamb, he is

4

subject to the jurisdiction of the Southern

5

District of Ohio.

6

Mr. Lamb to sit for another deposition, they

7

should go to the Southern District of Ohio and

8

make the objection there.

9

And if they want to compel

The Court has jurisdiction over

10

him and that's the open forum to take.

11

Nonetheless, even if this Court were to look at

12

this issue as a discovery issue, we do believe

13

this took place in the Southern District of Ohio

14

and the legal authority of the jurisdiction

15

where the issue arose would have the controlling

16

factor.

17

Finally, all you've got to do is

18

look at testimony, Your Honor.

19

this is a substantive change at all.

20

We don't think

I think these are clarifications.

21

Mr. Lamb stated it was a clarification.

22

answering very specific -- a very specific

23

answer to a very specific question.

24

He was

And I think the word just doesn't

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

49
1

change a yes to no.

2

throughout his deposition were very clear.

3

was a very precise individual.

4

In fact, his answers
He

So when they asked him precise

5

questions, he would ask for a clarification.

6

When they asked him very specific questions like

7

they did, he gave a very specific answer.

8

That's all he was trying to clarify.

9

So we don't think that, even under

10

the law in Delaware or Ohio, this is a

11

substantive change.

12

his changes.

13

and confer, we asked him if he would provide

14

reasons for it and he agreed to do it, even

15

though we don't think it's necessary because

16

it's a clarification.

17

reasons already.

18
19

He did provide reasons for

Nonetheless because we had a meet

He did provide the

THE COURT:

Okay.

Mr. Caponi, any

response?

20

MR. CAPONI:

Your Honor, just very

21

briefly.

The consequence of stipulating to an

22

errata sheet, it's not something a party

23

stipulates to or control or a statement of the

24

obviousness.

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

50
1
2

The Federal Rules embody the
procedure for dealing with an errata sheet.

3

It's not as if Facebook could have

4

precluded an errata sheet from being submitted.

5

And, Your Honor, I think, again, he's

6

represented by -- Mr. Lamb is represented by

7

Mr. Andre.

8

independent third party.

9

This is not some completely

And we think when you look at the

10

totality of the circumstances, the nature of the

11

change, the limited nature, subject of the

12

change and its significance to the issues in

13

this case, it paints a very stark picture and

14

one that suggests some gamesmanship is afoot.

15

And if Facebook was -- you know,

16

what we have here is a party trying to mend

17

damage from its self-inflicted wound, trying to

18

take back testimony it knew was harmful, but to

19

do it in a crafty way.

20

I think that's fairly obvious.

21

The relief is the errata sheet should not be

22

included.

23

he walked out of that room.

24

deposition should be ordered.

The testimony should be as it was as
If not, I think a

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

51
1

Your Honor has jurisdiction over

2

Mr. Andre and his firm.

They were admitted pro

3

hac in that case.

4

lawyers that participate in depositions need to

5

be pro haced in Delaware, so this Court can

6

control the counsel and the conduct of those

7

depositions.

That is why in Delaware cases

8

And here, if, you know, even if we

9

take the most favorable light, look at the most

10

favorable light, if Mr. Lamb made a substantive

11

change, we clearly should have another

12

opportunity to depose him if the change is

13

permitted.

14

Facebook's expense.

And it should not be done at

15

THE COURT:

16

MR. CAPONI:

17

20

Thank you, Your

Honor.

18
19

Okay.

THE COURT:

All right.

Thank you,

counsel.
On this one, I am not going to

21

strike the errata sheet.

I think that -- well,

22

first, let me say our review of the errata sheet

23

makes it appear to us that the changes are not

24

substantive and are more in the nature of

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

52
1

clarifying.

2

So it seems that even under the

3

Delaware standard and the Delaware cases that

4

have been cited, it looks to us like these

5

changes are merely clarifying and it would be

6

appropriate.

7

With that said, I certainly

8

understand the desire to take a further limited

9

deposition of Mr. Lamb to understand that they

10

are clarifying and not substantive.

11

not clear, as I sit here, whether, in fact, I

12

have the authority, the jurisdictional authority

13

or otherwise to order a nonparty resident of

14

another state to appear for a further

15

deposition.

16

But I am

So I'm not, at this point,

17

ordering that Mr. Lamb be produced for a further

18

deposition.

19

in the Southern District of Ohio, certainly I

20

have no problem with that Court being advised

21

that I think it would be appropriate that he sit

22

for an additional deposition to explain further

23

the basis for the clarifications on the errata

24

sheet.

If relief to that effect is sought

But at this point, I'm not ordering it.

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

53
1

So that is my ruling on this

2

issue.

And I believe I have addressed all the

3

issues that are pending in front of the Court at

4

the moment.

5

Is that correct, Mr. Andre?

6

MR. ANDRE:

That's correct, Your

THE COURT:

And Ms. Keefe, is that

MS. KEEFE:

I believe so, Your

THE COURT:

Okay.

7

Honor.

8
9

correct?

10
11

Honor.

12
13

much, counsel.

Thank you very

Bye-bye.

14

MR. ANDRE:

Thank you, Your Honor.

15

MS. KEEFE:

Thank you.

16

(Teleconference was concluded at

17

3:56 p.m.)

18
19
20
21
22
23
24

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

54
1
2

State of Delaware )
)
New Castle County )

3
4
5

CERTIFICATE OF REPORTER

6
7

I, Heather M. Triozzi, Registered

8

Professional Reporter, Certified Shorthand Reporter,

9

and Notary Public, do hereby certify that the

10

foregoing record, Pages 1 to 54 inclusive, is a true

11

and accurate transcript of my stenographic notes

12

taken on April 9, 2010, in the above-captioned

13

matter.

14
15

IN WITNESS WHEREOF, I have hereunto set my

16

hand and seal this 13th day of April, 2010, at

17

Wilmington.

18
19
20
21

Heather M. Triozzi, RPR, CSR
Cert. No. 184-PS

22
23
24

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]