Leader Technologies Inc. v. Facebook Inc.

Filing 651

DECLARATION re 650 Answering Brief in Opposition,, -- Declaration of Jeffrey T. Norberg in Support of Defendant Facebook, Inc.'s Opposition to Plaintiff's Motion for Judgment as a Matter of Law and for a New Trial by Facebook Inc.(a Delaware corporation). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Caponi, Steven)

EXHIBIT E

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LEADER TECHNOLOGIES, INC., a
Delaware corporation,
Civil Action No. 08-862-JJF/LPS
Plaintiff-Counterdefendant,
v.
FACEBOOK, INC., a Delaware corporation,
Defendant-Counterclaimant.

DEFENDANT FACEBOOK, INC.’S NOTICE OF DEPOSITION OF DEFENDANT LEADER
TECHNOLOGIES, INC. PURSUANT TO FED. R. CIV. P. 30(b)(6)
NOTICE IS HEREBY GIVEN pursuant to Federal Rule of Civil Procedure 30 that Defendant
and Counterclaimant FACEBOOK, INC. (“Facebook”) will take deposition upon oral
examination of Plaintiff and Counterdefendant LEADER TECHNOLOGIES, INC. (“LTI” or
“Plaintiff”) at a time and place to be agreed upon, and continuing from day to day thereafter until
completed. The deposition will be recorded by a certified stenographic reporter. Facebook may
also record the deposition by videotape and through the instant visual display of the testimony
(i.e., LiveNote).
NOTICE

IS

HEREBY FURTHER GIVEN pursuant to Federal Rule of Civil Procedure

30(b)(6) that LTI shall designate and produce one or more of their officers, employees, managing
agents, or other such persons as are most qualified, knowledgeable, and competent to testify on
LTI’s behalf as to all matters known or reasonably available to LTI regarding the subjects set
forth in Exhibit A, Section II below, in accordance with the Definitions set forth in the attached
Exhibit A, Section I below.

1

EXHIBIT A
I.

DEFINITIONS
1.

“Any” shall be understood to include and encompass “all.”

2.

The singular shall always include the plural and the present tense shall also

include the past tense.
3.

“And” as well as “or” shall be construed disjunctively or conjunctively as

necessary to bring within the scope of this request all documents or things that that might
otherwise be construed to be outside its scope.
4.

“Person” and “persons” mean both natural persons and legal entities, including,

without limitation, corporations, companies, firms, partnerships, joint ventures, proprietorships,
associations, and governmental bodies or agencies. Unless noted otherwise, references to any
person, entity or party herein include its, his or her agents, attorneys, employees, employers,
officers, directors, or others acting on behalf of said person, entity, or party.
5.

“Relate” or “refer” or any variants thereof, when used in connection with any

document, shall be understood to apply if the document directly or indirectly evidences,
mentions, discusses, constitutes, concerns, supports, contradicts, refers to, or in any other way
deals with the subject matter described in the request in which the term appears.
6.

“Document” shall have the broadest meaning ascribed to it by Federal Rule of

Civil Procedure 34 and Federal Rule of Evidence 1001.
7.

“Communication” means any contact, oral or documentary, formal or informal, at

any place or under any circumstances whatsoever whereby information of any nature is
transmitted or transferred, including, without limitation, a single person seeing or hearing any
information by any means.
8.

“LTI,” “Plaintiff,” “You,” and “Your” mean Leader Technologies, Inc., its

directors, officers, parents, subsidiaries, predecessors, successors, assigns, agents, servants,

2.

employees, investigators, attorneys, and all other persons and entities representing it or acting on
its behalf.
9.

“Facebook” means Facebook, Inc.

10.

“Litigation” means the action commenced in the District of Delaware (No. 08-cv-

862-JJF/LPS) and any actions between the parties.
11.

“Persons with knowledge” means any persons (1) who observed or witnessed the

event or communication in question; (2) who participated in the event in question; or (3) who
discussed the event or communication in question with a person meeting the description in (1) or
(2) herein.
12.

“Patent-in-suit” and “’761 patent” both mean United States Patent No. 7,139,761.

13.

“Leader2Leader” shall be understood to include the LTI product and/or service

referred to by LTI as “Leader2Leader,” “L2L,” “Leader2Leader® powered by Digital
Leaderboard®,” and/or “Leader’s Enterprise Social Networking technology.”
14.

“Prior Art” means any document, action, or information that satisfies, or

potentially satisfies, any of the prior art provisions of 35 U.S.C. § 100, et seq., e.g., §§ 102, 103.
15.

“Infringe” or any variant thereof refers to any infringement whether direct,

contributory, or by inducement.
16.
II.

“Complaint” means the complaint filed by LTI in this Litigation.

DEPOSITION TOPICS.
Pursuant to Rule 30(b)(6), LTI is required to designate one or more officers, directors, or

managing agents, or other persons to testify on its behalf as to the following topics:
1.

For each claim of the ’761 patent that LTI contends is infringed by Facebook, the

circumstances surrounding the alleged invention of the claim, including, for example, the precise
date of conception; the persons involved and the nature of their involvement; the date of actual or
constructive reduction to practice; the date and circumstances of first experimental or test use;
the date and circumstances of first public disclosure; the date and circumstances of the first offer

3.

to sell or sale; and the steps constituting diligence from conception to actual or constructive
reduction to practice.
2.

LTI’s relationship to the named inventors of the ‘761 Patent, including any

contractual or consulting arrangements.
3.

The sales and alleged commercial success of LTI products and/or services,

including the number and identity of LTI customers, the identity and quantity of LTI products
and/or services that have been sold or otherwise provided to customers, and all revenue, profits
or losses derived or resulting from such LTI products and/or services.
4.

Any analysis performed by LTI relating to the market or evaluation of

competitors or potential competitors.
5.

The conception, design, research, experimental work, development, reduction to

practice, examination, analysis, testing, evaluation, sales, marketing and public use of each
version of each LTI product, including Leader2Leader.
6.

Any Prior Art of which LTI is aware that concerns, discloses, describes or claims

any alleged invention disclosed, described or claimed in the ’761 Patent.
7.

All available or potentially available substitutes or non-infringing alternatives

(whether acceptable or unacceptable) to the technology claimed in the ’761 Patent.
8.

Sales, offers to sell or license, or plans to market or sell or license the alleged

invention of the ’761 Patent or products and/or services utilizing any alleged invention of the
’761 Patent.
9.

Any consideration, efforts, or attempts to assign, sell, transfer or license the ’761

Patent or any patents related thereto.
10.

Any damages, lost profits, or other injury that LTI claims to have suffered as a

result of Facebook’s alleged infringement of the ’761 Patent.
11.

Any costs or expenditures LTI claims to have incurred as a result of Facebook’s

alleged infringement of the ’761 Patent.
12.

LTI’s first knowledge or awareness of Facebook.
4.

13.

LTI’s decision to commence litigation against Facebook.

14.

The identity of each version or each LTI product and/or service that LTI contends

practices one or more asserted claims of the ’761 Patent, including Leader2Leader, and the
manner in which such product and/or service allegedly practices the claimed invention.
15.

The design, development, operation, testing, evaluation, promotion, marketing

and sales of each version of any LTI product that LTI contends practices one or more asserted
claims of the ’761 Patent, including Leader2Leader.
16.

LTI’s efforts to mark its product with the ’761 Patent, including the identity of

each product and/or service that was marked and the analysis, if any, by which the decision to
mark such product and/or service was reached.
17.

Any copyright registrations filed by LTI relating to LTI’s products.

18.

Any Communication with any third party concerning the ’761 Patent, this

Litigation, potential litigation against any party involving the ’761 Patent, including the identity
of any third parties who signed or were asked to sign non-disclosure agreements relating to any
of the foregoing.
19.

All potential and/or actual investments in or funding of the costs of this Litigation

or any potential litigation against any party involving the ‘761 Patent, and all related
Communications.
20.

The history and organizational structure of LTI and all of its subsidiaries and/or

related companies, including the identity of any principals, officers and investors of LTI during
its history.
21.

LTI’s relationship with Computer Wizards Consulting, Inc.

22.

Any factual basis for LTI’s contention that Facebook has induced others to

infringe the ’761 Patent, as set forth in the Complaint at ¶ 9.
23.

Any factual basis for LTI’s contention that Facebook has contributorily infringed

the ’761 Patent, as set forth in the Complaint at ¶ 9.
24.

Any factual basis for LTI’s contention of willful infringement of the ’761 Patent,
5.

as set forth in the Complaint at ¶ 9.
25.

Any factual basis for LTI’s contention that it is entitled to a permanent injunction

against Facebook, as set forth in the Complaint at ¶ 10.
26.

Any policy LTI has in place regarding retention of Documents.

27.

Any destruction of Documents by LTI, or by any third party at LTI’s request,

where said Documents related in any manner to the Litigation.
28.

Your collection and production of responsive information, documents,

communications and things responsive to Facebook’s discovery requests, including but not
limited to the persons responsible for and involved in your document collection and production;
actions taken to locate and produce responsive information, documents, communications and
things; files and locations that were searched for responsive information, documents,
communications and things; and communications relating thereto.

Dated: February 8, 2010

By: /s/ Melissa H. Keyes
Heidi L. Keefe (pro hac vice)
Mark R. Weinstein (pro hac vice)
Jeffrey Norberg (pro hac vice)
Melissa H. Keyes (pro hac vice)
Elizabeth L. Stameshkin (pro hac vice)
COOLEY GODWARD KRONISH LLP
3000 El Camino Real
5 Palo Alto Square
Palo Alto, CA 94306
Counsel for Facebook, Inc.

6.

CERTIFICATE OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA
I am employed in the County of Santa Clara, State of California. I am over the age of 18 and
not a party to the within action. My business address is 3000 EI Camino Real, Five Palo Alto
Square, Palo Alto, CA 94306.
On February 8, 2010, I served the following document:

DEFENDANT FACEBOOK, INC.'S NOTICE OF DEPOSITION OF DEFENDANT
LEADER TECHNOLOGIES, INC. PURSUANT TO FED. R. CIV. P. 30(b)(6)
on the interested parties in this action follows:

BYE-MAIL:

BYE-MAIL:

Paul J. Andre, Esq.
Lisa Kobialka, Esq.
James Hannah, Esq.
King & Spalding
333 Twin Dolphin Drive, Suite 400
Redwood Shores, CA 94065

Philip A. Rovner, Esq.
Potter Anderson & Corroon LLP
P.O. Box 951
Wilmington, DE 19899-0951
[e-mail]

, [e-mail]
[e-mail]
[e-mail]

[XX] BY ELECTRONIC MAIL: I am personally and readily familiar with the business
practice of Cooley Godward Kronish LLP for the preparation and processing of documents in
portable document format (PDF) for e-mailing, and I caused said documents to be prepared
in PDF and then served by electronic mail to the parties listed above.
I declare that I am employed in the office of a member of the bar of this Court at whose
directions the service was made. I declare under penalty of perjury that the foregoing is true
and correct and that this declaration was executed on February 8, 2010 at Palo Alto,
California.