Leader Technologies Inc. v. Facebook Inc.

Filing 77

Official Transcript of Teleconference held on 07-14-09 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 8/14/2009. Redacted Transcript Deadline set for 8/24/2009. Release of Transcript Restriction set for 10/22/2009. (lad)

L e a d e r Technologies Inc. v. Facebook Inc.

Doc. 7

1 IN THE U N I T E D S T A T E S DISTRICT COURT FOR T H E D I S T R I C T O F D E L A W A R E LEADER TECHNOLOGIES, I N C., Plaintiff, v. FACEBOOK , I N C. , a Delaware corporation , Defendant. ) ) ) ) ) C .A. No . 0 8-8 6 2- JJF -L P S ) ) ) ) ) )

July 14 , 2009 2 :30 p. m. Teleconference

BEFORE:

THE HONORABLE LEONARD P . STARK United States District Court Magistrate

APPEARANCES : POTTER , ANDERSON & CORROON, LLP BY: P H I L I P A. ROVNER , E S Q. -a n dKING & SPAULDING BY: PAUL ANDRE , E S Q. Counsel for Plaintiff

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

Dockets.Justia.co

2 1 2 3 4 5 -a n d6 7 8 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] WHITE & CASE BY: H E I D I L . K E E F E, ESQ . Counsel for Defendant BLANK ROME, LLP BY: S T E V E N L. CAPONI , E S Q. APPEARANCES CONTINUED:

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 y o u. MS . K E E F E: A n d M r. Caponi an d Honor . T H E C O U R T: Good afternoon . You Honor . T H E C O U R T: MR . R O V N E R: Good afternoon . A n d Your H o n o r, this Honor . please. MR . C A P O N I: Good after noon, Your counsel. T H E C O U R T: Good afternoon ,

This is Judge Stark . L e t m e know w h o's on t h e line ,

This i s Eric Caponi from Blank Rome from And with me is Heidi Keefe from W hite

Facebook . & Case.

MS . K E E F E:

Good afternoon , Your

is Phil Rovner from Potter , A n d e r s o n & Corroon for the plaintiff . And with me on the line is

Paul Andre from King & Spaulding in California. MR . A N D R E: Good afternoon , Your

folks are for Facebook; correct? MR . A N D R E: Your Honor, yeah.

We 're f o r L eader Technologies , plaintiff. T H E C O U R T: I' m s o r r y. Okay. Got

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

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 m y s e l f a r e for Facebook . T H E C O U R T: Okay. Okay. Forgive me .

S o f o r the r e c o r d, this i s It 's

t h e L eader Technologies versus F a c e b o o k. o u r C ivil A ction Number 08 -8 6 2-J J F.

A n d the

r e a s o n f o r the call today is that both parties have some discovery requests, certain discovery disputes . And I reviewed the letters that were submitted in connection with both parties' dispute. I want to begin first and hear just

briefly from each side with respect to Facebook 's complaint regarding essentially t h e response to Facebook 's Interrogatory N umber 10. A n d l e t me hear briefly first from Facebook on this. MS . K E E F E: Thank y o u, Your H o n o r.

Again , this is Heidi Keefe . O u r complaint is actually, I think , relatively small . What w e'r e looking f o r

here is to simply have Leader 's response to Interrogatory 10 be complete. This is an

interrogatory in that i t i s - - i t address es a very limited u n i v e r s e o f documents and limit ed Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 information . We a r e a s k i n g Leader to give us their support for their contention that t h e earlier filed, shorter application supports the later i s s u e d c l a i m s of the p a t e n t a t i s s u e i n this case. A l l o f t h e information needed to a n s w e r that interrogatory is within t h e four corners of the specification of the p a t e n t i n question . When L eader came back with its

response , i t s response was , W ell , t h e first response was simply everything. Th a t' s n o t good enough. And w e said ,

W e need to understand

limitation by limitation w h e r e i t i s. Their supplemented response, while it went in the right direction, we will give them that, it was circumvente d with a l l o f this language like it' s just ex empla r y. this is non -limiting . It 's just some of t h e c l a i m s and some of the ex amples that we find. A n d w e'r e You know ,

s i m p l y a s k i n g, in order to understand what t h e i r position is a n d move this issue forward, to have a final and complete a n s w e r. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 to do that? Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] N o w, we understand that if , through the c o u r s e o f discovery, something c o m e s out that completely changes their mind under the Fe d e r a l Rules, they could come back an d attempt to supplement their responses . B u t w e'r e a s k i n g for a complete response as they know i t a t this time. s i m p l y d o n' t have that yet . T H E C O U R T: A l l r i g h t. I A nd we

understand what y o u' re asking f o r. B u t a s I understand it, they' ve indicated t o y o u that they believe the priority date is the date of filing of t h e p r o v i si o n a l filing. So y o u know what their position is, so

y o u c o u l d determine what t h e prior art is based on what they'v e already told you . Help me out on w h y i t i s y o u' re entitled to or what' s p r e j u d i c i n g y o u from them reserving a right to potentially come up with additional arguments or contentions based on what you yourself describe as a limited u n i v e r s e of documents. W h y c a n' t they reserve the right

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 that yet . MS . K E E F E: Well, I think -- I

think it goes to a n u m b e r of things , Your Honor . I think, first , what we 're talking about in terms of t h e p r i o r i t y date is that the b u r d e n i s on Le a d e r t o p r o v e t h e priority date. What we did w a s w e said we d o n't believe that y o u' re entitled to that p r i o r i t y date. A n d, y o u know , w e have to come forward

with reason s that we d o n't believe that - - w e told them that the word tracking , for example, which is in every o n e o f t h e claims at issue in this case didn 't even a p p e a r in the original priority document . T h e b u r d e n then s h i f t s to Leader to establish w h y it is entitled to that priority -- to that priority documentation. We d o n't feel that they 've done And if a l l o f t h e i r support , i f

everything that they have is what they have right n o w, we' d like to be able to move potentially for summary judgment resolving this issue , s o that t h e u n i v e r s e o f p r i o r a r t is firmly established a n d narrowed down. B u t t h e way that they crafted Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 point . their answers saying that it' s s i m p l y exemplary , they simply d o n't know or they m a y have different i d e a s l a t e r d o e s n't allow us to do that, a n d d o e s n't allow us to know what t h e universe of prior a r t i s. T h e b u r d e n is on them a t this We' d like a final answer . If their final a n s w e r i s a s i t s t a n d s r i g h t n o w and they have n o o t h e r information a n d they confirm that, then w e'd like to move f o r summary j u d g m e n t o n this issue that they'r e n o t entitled to that p r i o r date . That' s what we 're leading to so that we can have as an absolute what t h e universe of prior a r t will be in this case. T H E C O U R T: hear from L eader, please. MR . A N D R E: Your Honor, f o r L eader. This is Paul A n d r e, I think Your Honor A l l r i g h t. Let me

understands t h e a r g u m e n t q u i t e well that we put in o u r l e t t e r brief. T h e patent is entitled to

t h e p r o v i s i o n a l date a b s e n t a showing by clear an d convincing evidence that the c l a i m s a r e not enabled by the provisional application . Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 There 's been n o c l e a r a nd convincing evidence put forward at all , a c t u a l l y no evidence at a l l. So o u r p o s i t i o n i s that we We

c a n rely on t h e e n t i r e t y o f t h e application.

tried to provide an exemplar just t o a v o i d this situation with t h e C o u r t. A n d i t's n o t o u r burden at this point to provide additional a l l- inclusive response s. T H E C O U R T: Okay. Fine .

Ms . K e e f e, anything else t o a d d? MS . K E E F E: I would just s a y, Your

Honor , w e actually have provided evidence the word track, f o r example , w h i c h i s i n e v e r y claim , d o e s n't appear a n y w h e r e i n t h e priority application that they'r e c l a i m i n g full support of . And I disagree with M r. Andre' s statement

of t h e l a w, b u t that 's in our briefing as well. So ... T H E C O U R T: Okay. Fine .

I' m p r e p a r e d t o rule on Facebook 's request here for further response t o Interrogatory Number 10 . A n d a t this time, I' m denying Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 at this time. L e t's n o w turn to t h e i s s u e s that Le a d e r h a s raised with respect t o F a c e b o o k. And Facebook 's request. I think, given t h e status

of t h e case , that Le a d e r's response at this time is adequate . It' s been recognized by Facebook

that it may be that Leader will have t o o r will be in a position to supplement i t s response over time. A n d I think there 's nothing that I see that preclude s such a supplement from being , based on t h e documents that L eader is already aware of an d h a s identified a n d is relying o n a t this time, or if discovery p r o v e s that there 's additional evidence on which it can rely that i t t h i n k s i s responsive to Interrogatory Number 10 , Le a d e r m a y do that a s well . So I' m denying Facebook 's request

I do want t o g o through these quickly, b u t o n e by o n e. A n d s i n c e L e a d e r is the m o v i n g party on these , l e t me hear f i r s t from Le a d e r o n t h e f i r s t i s s u e, which goes t o t h e production o f documents from previous litigation. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Paul Andre. MR . A N D R E: Your Honor, this is

Once again what we' re asking f o r i s N o t a l l the documents, just

relevant documents.

the relevant documents from two particular litigations that we' ve identified, the Connect U case and th e C ross Atlanta case. The C onnect U case i s a trade s e c r e t case in which case there has been about a hundred pages of testimony that' s been p o s t e d o n t h e w e b. A n d we' ve looked at that testimony a n d

find it relevant to our case. It discusse s t h e development of t h e Facebook w e bsite , t h e design features , both past and present of their web site, indication o f k e y witnesses and documents a n d staff, certain evidence like laptops, et cetera . that' s relevant. An d C ross Atlanta we believe would be relevant as well because i t relates to certain applications on t h e w e bsite regarding - y o u know , i t w o u l d - - that would be involved in o u r case as well. T H E C O U R T: What about the So we know

suggestion that J u d g e F a r n a n has already Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 reviewed this request f o r relief an d s e t forth an alternative procedure i n that y o u'r e n o t fully complying with that procedure for getting this type o f information? MR . A N D R E: The alternative

procedure, Your H o n o r, was c o m i n g t o Your Honor with these requests. I actually brought this u p

at t h e e n d of the hearing saying that, y o u know , we still have one issue that was n o t related to t h e s o u r c e codes, b u t t h e s e documents in particular. He specifically said that we could bring that up with Your Honor with a n e w procedure that he 's instituting for a l l n e w discovery disputes. A n d h i s order was very

specific as well about the c o u r s e o f n o n- case dispositive m o t i o ns and referred them to Your Honor . So I think what J u d g e F a r n a n was talking about and t h e w a y he exp l i c i t l y said that was we could bring this up during this procedure. T H E C O U R T: Okay. M s. Keefe or

Mr . C a p o n i, y o u want to respond? Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 number. we disagree . MS . K E E F E: Your Honor, obviously,

We think that what happened --

this is actually -- all of these i s s u e s a r e disputes that the parties have been h a v i n g s i n c e t h e very , very beginning o f this case in terms of what is the e x t e n t o f discovery that's allowed by the infringement c o n t e n t i o n s that Le a d e r h a s provided thus f a r. A n d w e'v e been in front of Judge Farnan t w i c e o n t h e same i s s u e. A n d what Judge I hear both

F a r n a n d i d was he said, Ok a y, guys.

of y o u a nd I a m g o i n g t o come up with a compromise. A t which point h e instituted this

procedure w h e r eby we would give them a list of the source code modules . They would pick a reasonable They would be reviewed. A n d b a s e d o n, you know, that r e v i e w, we would be able t o n a r r o w the case down through the infringement contention s t o what w a s truly relevant . Mr . A nd r e d i d, in fact, raise t h e issue of t h e related or unrelated litigation at t h e e n d of the hearing. A n d what I said to

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

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Judge Farnan w a s, Your Honor, this relates exactly in the same way that the technology documents d o. We c a n't possibly know what's

related and what is not until we know what t h e technology is. At that point, t h e j u d g e reiterated that h e w a s denying a l l of the motions and that we were t o g o forward on this new procedure. I then r a i s e d the fact that w e h a d a completely different issue, which w a s a broad spectrum response an d s h o u l d we bring that b e f o r e J u d g e F a r n a n or should we bring that b e f o r e Your Honor , because he w a s deferring f u t u r e i s s u e s to you . And he said future i s s u e s

will go in front of Judge Stark. He d i d n o t say we c a n r eaddress a l l o f t h e issues that had come before . had been denied i n favor o f the staggered approach that he put in place . And that staggered approach makes sense because it' s a l l about figuring out what is t h e r e l e v a n t part of Facebook 's web site that' s a t i s s u e. An d, therefore , what parts of Those

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

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 other litigations m a y o r m a y not be relevant . T H E C O U R T: MR . A N D R E: Okay. M r. And r e.

Your Honor, I disagree

complete ly with M s. Keefe' s characterization of what Jud g e Farnan ruled on a n d what he s t a t e d. He actually state d h e d e n i e d all motions as moot. transcript. It says it on Page 3 4 o f t h e

A n d then h e - - basically he wants

to defer a l l f u t u r e discovery to Your Honor to handle t h e s e. T h e fact of t h e m a t t e r is Facebook h a s been complaining a l l a l o n g that they don 't understand the scope of t h e case . So what w e'v e

done now , w e'v e identified specifically, I d o n' t know if you call them s o u r c e code m o d u l es or data files, we 've identified ones that we were interested in looking a t a t this point . So they know what we a r e look ing at to be relevant a n y w a y, so they know what documents they c a n produce with the previous litigation. It 's a l i t t l e bit different, because I know with the Co n n e c t U case , o n e of o u r p o s i t i o ns is they c o p i e d the White paper we Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 that. published. A n d they were able t o d e s i g n and

develop their web site b a s e d o n that White paper . There 's nothing unclear about I 've l o o k e d a t this testimony a n d read i t

m y s e l f, and it 's very c l e a r that they talk a b o u t h o w they designed a n d developed the w e bsite and h o w they were able t o code t h e e n t i r e thing in t w o w e e k s. cases . So we know that's relevant to o u r willful case, regardless o f M s. Keefe saying , W e d o n't know what t h e technology i s. You know , Or less than t w o weeks in some

we 've been hearing that song and dance since d a y o n e. So t h e i n f o r m a t i o n that 's in these previous litigations a n d like an olympic universe of information we 're entitled to . There 's absolutely n o r e a s o n not to give it up at this time. T H E C O U R T: Ms . K e e f e, do you want

to a d d a n y t h i n g regarding why it w o u l d n't be relevant , a s s u m i n g I reach this issue on the merit s? MS . K E E F E: Your Honor, this is

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

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 absolutely not relevant at this point. They 've

actually -- they have e s t a b l i s h e d absolutely no w a y o f knowing that -- sorry. L e t me back u p.

They have n o t established, in a n y w a y, that w e h a d access to a n y W hite p a p e r s or documentation, a n d that they have a n d we' ve answered interrogatories that have absolutely said that w e d i d not . at this point. A n d t h e only t h i n g that they' ve otherwise been saying i s that these litigations a r e somehow related to the technology of the Facebook w e bsite. A n d that's exactly what this And so it is n o t r e l e v a n t

staggered approach i s designed t o d o i s t o try to f i g u r e o u t what i s that techn o l o g y that they' re using. T h e fact that they' ve identified

some modules that they want t o look at does not , by definition, make them r e l e v a n t. In fact, they haven' t even v i e w e d those modules yet . later that week. We would a s k that t h e C o u r t continue with the parties on the c o u r s e s e t by Judge F a r n a n, and that they b e f o r c e d to look a t Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] They'r e scheduled to do so

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 t h e s o u r c e code, come back an d tell us what' s really a t i s s u e i n this case. forward from t h e r e. T H E C O U R T: All right . And , A nd we' ll go

Mr . A n d r e, whether i t's up to me independently or whether Judge Farnan h a s already decided that this is the w a y t o proceed , i t s o u n ds like a reasonable way of proceeding, w h y s h o u l d I n o t hold you to going a n d reviewing some o f this s o u r c e code an d o t h e r m a t e r i a ls and then seeing if y o u c a n make a showing as to the relevance o f the other litigation and maybe the other stuff y o u'r e seeking here? MR . A N D R E: Your Honor, it 's

something that we c a n already show the relevance of at least Connect U, because that h a s been produced p u b l i cly or a hundred p a g e s o f i t h a s been. We need the technical documents when we get to that part o f t h e brief to actually understand the s o u r c e code . If you

read source code in a v a c u u m, y o u c a n do it, to some degree , b u t you need the supporting documents, the d e s i g n n o t e s, and various other Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 relevant . techn i c a l support f o r that s o u r c e code to g e t full understanding o f what 's going on there. So , y o u know, this i s nothing more than Facebook from d a y one they' re trying to r u n o u t t h e clock on us. W e have a November

discovery c u to f f in this case . A n d they 've been acting like they d o n't know what this case is about. W e'v e g i v e n

detailed infringement contention s base d o n public information. functionality. We gave them s c r e e n shots. gave them A P I calls. It is something that , regardless of what we say , they come back a n d plead ignorance. about n o w. They are s a y i n g that is n o t Well, I know f o r a fact the Co n n e c t U We d o n't know what they 're talking We We identified the

testimony i s relevant. I can tell you right n o w what I' d like to use in that testimony in my case in chief , just what I told y o u a b o u t, the a m o u n t o f time it took them to write t h e code f o r t h e Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 as well. Facebook w e bsite. So there 's other information there Obviously, t h e d e s i g n features and

some other identification of documents of witnesse s that we would like to get . that' s relevant. A n d M s. Keefe saying that, y o u know, we d o n't know what t h e case i s a b o u t. All So I know

o n e h a s to do is read t h e patent an d t h e claims a n d, as Judge Farnan said on multiple occasions , this is not t h e type of c l a i m s that p e o p l e cannot u n d e rstand . It' s f u n d a m e n t a l

architecture o f t h e i r w e bsite that we believe i s infringing and there 's no reason to withhold these documents whatsoever . They have already produced them once in the previous litigations . They c a n d o i t again . T H E C O U R T: I guess by necessity ,

we 've overlapped now into the s e c o n d request that Leader makes which is more specifically with respect t o t h e technology f o r the Facebook w e bsite. Is there anything else to add on Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 that request that we haven 't already addressed? Mr . A n d r e, first. MR . A N D R E: Your Honor, none other The

than there' s n o r e a s o n not to produce it.

only reason they put forward is they said Judge F a r n a n didn 't order it. They have been dodging their discovery o b l i g a t i o n s s i n c e t h e beginning of this case. Just because a judge doesn 't order

it , that doesn 't mean y o u don 't produce i t pursuant to t h e F ederal Rules . So o u r p o s i t i o n t h e r e i s that we identified the m o d u l e o r t h e data f i l e s, whatever y o u want to call them. We want the

supporting documents for those s o w e can make heads or tails of t h e s o u r c e code. An d t h e r e's

absolutely no reason n o t t o produce them. T H E C O U R T: A n d when is it that

y o u'r e s c h e d u l ed to go look a t something? MR . A N D R E: We have our e x p e r t

witness coming in this week t o look at it on Thursday . T H E C O U R T: A n d w h y should I not

p u t a l l of this o n hold , y o u know, my decision, Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 y o u know , f o r a week or so a n d g e t you a l l back after y o u h a d the c h a n c e t o have your expert review those materials that are already arranged to be seen and s e e what t h e dispute looks like, y o u know , a week from n o w? MR . A N D R E: Well, t h e expert

already informed us that h e'l l need technical documents t o a c t u a l l y c o n c l u d e, you know, make h i s evaluation of t h e s o u r c e code. T H E C O U R T: So a r e y o u saying he 's

n o t g o i n g t o b e able to g e t a n y t h i n g productive done on Thursday if I - MR . A N D R E: No . We' ll get some There 's no doubt

productive information done. about it .

He 's going to be able t o g o i n, s e e h o w the s o u r c e code is s e t o u t because t h e list they gave us w a s - - i t w a s supposed to be a m a p o f t h e source code. m a p. They gave u s a list of 400 t i t l e s, some of them a s ridiculous as this is Letter R or t h e L etter N o r entitle d documents. So They didn' t give us a

they' re not descriptive in n a t u r e a n d they were Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 n o t a m a p a t a l l. B u t w e decided we 're going to work with this, because w e know what their approach is , t r y to push discovery out as long as possible an d r u n out t h e c l o c k o n u s. What the e x p e r t i s g o i n g t o d o i s go in a n d s e e how t h e s o u r c e code i s structured . He 's going to do a l o t of information from that first review. He 's not going to be able to get a conclusive call o n e way or t h e o t h e r o n t h e s o u r c e code until he actually sees the support documents. T H E C O U R T: Ms . K e e f e, I want y o u

to have a c h a n c e to address a n y t h i n g further with respect t o the technology documents, but also articulate f o r me what, if anything, I would be gaining particularly in terms of clarity of this i s s u e i f I were to defer ruling f o r, say , a week until after the e x p e r t f o r L e a d e r h a s had a chance to do whatever he or s h e is going to do on Thursday . MS . K E E F E: y o u, Your H o n o r. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] Absolutely. Thank

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I think, first o f f, this goes back to t h e n o t i o n that this is -- we 're in a new kind of place with this discovery. staggered form . Yet their argument has always been -- we understand that ours has a l w a y s been that we don 't. Judge Farnan specifically We 're in a

accepted both parties' position, an d i n fact , h e actually said, y o u know , " Ok a y. Le a d e r's given

e n o u g h a t this stage of t h e case , b u t not e n o u g h to l e t them go full bore into Facebook ." A n d that 's why he created something that would protect both side s, their interest at looking at some i n f o r m a t i o n, but o u r interest in protecti n g what's most important to us , w h i c h i s o u r code. An d t h e fact that t h e

site and t h e company a r e e s s e n t i a l l y massive , an d therefore, we need to be able t o make sure that only what 's relevant is what's going on . The judge then said what - - you know what I think -- this is another q u o t e. "What I think we need t o d o t o t r y and make this a little b i t i n f o r m e d a n d to let it e v o l v e a l i t t l e b i t, I think I w o u l d like Facebook to Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 produce that category list " - - w h i c h w e d i d. "Then I' d like to s e e h o w reasonable L e a d e r is in pulling that list . Does that make sense? " They

So we gave them a list. picked their list .

We thought it was a little b i g g e r than it should be , b u t we denied to -- n o t t o raise that fight. material . N o w, we 're producing that

Then they -- they haven' t even seen

t h e code an d y e t they'r e telling me that they c a n't understand it. I think that they will find that t h e code actually is quite understandable . n o t a computer scientist a n d I'm able to understand Facebook' s code by looking at it. This isn 't a company that makes software that they then sell, so there aren' t things like user manuals going around. crafts little keys. It goes up on the -- as t h e w e bsite and it changes over time quite a bit . So I think Your H o n o r's approach in going back to what Judge Farnan h a d originally intended is a good o n e, because I t h i n k they 'll find when Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] Facebook I am

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 they actually do review t h e code that they will understand what they 're looking at. A n d they'l l

then be able t o n a r r o w their request a s e v e r y o n e intended this process t o d o i n order t o only get at that which they r e a l l y need a n d not t h e t h i n g s that they don 't. Regardless of what M r. And r e says, we do n o t s t i l l a c t u a l l y have a good g r a s p o n what they a r e accusing of infringement . that' s w h y this process w a s s e t in place. So , p l e a s e, Your Honor, d o n't p u t t h e cart before t h e horse. code. Have them review the And

They 're s e t t o d o s o this week. A n d then Mr . A ndr e a nd myself c a n

talk about what they s a w o r didn 't see , w h y something made sense or didn' t make sense . Judge Farnan also anticipated this happening and he said that i f, in fact, once w e went through process number o n e, we couldn 't agree on what w a s happening, he t a l k e d a b o u t t h e possibility of bringing experts in from both sides to tell him why they would want more than has been already given, or an e x p e r t o n m y side to s a y w h y they d o n't need what's going on . Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 f o r m e? MR . A N D R E: Y e s, Your H o n o r. So that was another part o f J u d g e F a r n a n's e n t i r e a p p r o a c h t o this stage -in -tiers discovery. We 're n o t t r y i n g to stall things . If t h e o t h e r side , i f L eader believes that we need more time, we 're absolutely happy to go to the Court an d g e t discovery extended. This is the position a n d And

this is what J udge F a r n a n put in place . we 'd like t o s e e that through . T H E C O U R T: Okay.

L e t' s move on

to t h e f i n a l t o p i c, which is Leader 's demand or request that there b e additional substantive responses t o t h e Request f o r Admission . Mr . A n d r e, would you address that

Essentially what' s happening, we 've filed a very specific set o f R equest for A dmissions . We 're n o t a s k i n g him to admit infringement o r a n y t h i n g o f that n a t u r e, but we did ask them t o make certain admissions regarding their technology . And instead of

giving any substantive responses , they went through and made objections that were so far o f f Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 t h e reality that it would be impossible t o c r a f t o u r R FA that w o u l d b e answerable according t o Facebook . So they o b j e c t e d t o a l l the R F A's a n d

then denied it based on those objections. I mean, just t o give Your Honor some examples, if y o u look at t h e R equest f o r Admission 2 2 where i t says admit that Facebook' s w e bsite stores information about users in o n e o r more databases . The objection w a s that w a s

vague and ambiguous. They said the word stores information an d u s e r s a r e vague and ambiguous, an d t h e r efore, they denied it based on that. Another one that was a good example is RFA 28 , a d m i t s that F a c e b o o k's w e bsite is hosted from servers located in t h e territory o f the United States. Objection t o

t h e word h o s t e d a n d denied t h e R FA based on that. You know , counsel can play these games of n o t wanting to admit a n y R FA. A nd

admitting R F A' s o r n o t are discovery t o o l s that lawyers don 't like t o u s e or to answer . But

there has t o b e some substantive response s other Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 them. than denials based o n objections . T H E C O U R T: And what about the

proposal s that they offered t o t r y to get y o u more information, either they would answer a n interrogatory giving their explanation for their denials or you would serve n e w R F A' s? MR . A N D R E: Well, t h e n e w RFA 's If

would -- they wouldn 't commit to t h e fact .

we gave RFA 's with s p e c i f i c d e f i n i t i o n s, they asked -- when they a s k e d u s t o define essentially every word in the RF A. If we were

to give those specific RFA 's, would they even answer t h o s e? They' d o b j e c t to them according to W e c o u l d n' t g e t that l o c k e d in, o n e w a y They said y o u try to re file them Once a g a i n, a s t a l l

or t h e o t h e r.

an d make them clear for us . tactic.

It w a s - - obviously, Ms . K e e f e would love to ask f o r extension of discovery an d lose our trial date in June o f next year. The other alternative about interrogatories, I believe it w a s c o n d i t i o n e d upon the fact that i f that 's the case, that Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 would u s e u p a l l of our remaining interrogatories. We have a limited n u m b e r o f

interrogatories i n t h e case. T H E C O U R T: What if we amended i t

so that it wouldn 't count towards your interrogatory limit, or alternatively, required them to respond very quickly to a n e w set of RF A's . Would either o f those approaches solve the problem ? MR . A N D R E: That would be fine,

Your Honor, if they responded substantively and not with just objections. fine with u s. T H E C O U R T: MS . K E E F E: A l l r i g h t. Ms . K e e f e. Again , that would be

Well, I mean, Your

Honor , I c a n't -- I' m n o t even sure where to start . Let me back up. As f a r a s t h e interrogatory proposition goes, o u r prop osition t o them w a s that we would answer an interrogatory, so long as -- a n d w e w o u l d n' t c o u n t i t a s each o n e b e i n g a separate interrogatory f o r each R FA that h a d to be responded t o s o long as they would give u s Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 the same courtesy . If, after we s e r v e d R F A' s o n

them, a single interrogatory would count. So it wasn' t a t a l l that t h e rogs would be used up. I t w a s exactl y t h e opposite.

It w a s that both parties w o u l d agree that the rogs would not be used up and they would treat interrogatories to d e f i n e w h y t h e R FA was answered that way in a similar fashion. S o w e'd actually be extremely content You 're allowed

if Your Honor said, All right .

to serve an interrogatory asking f o r t h e reason s for the denial . We will a n s w e r that

interrogatory and n o t c o u n t i t against their total . So long as when w e s e r v e R F A' s o n them and then serve a similar s i n g l e interrogatory, it doesn 't count against u s. That' s t h e proposition and we a r e s t i l l willing to do that. T H E C O U R T: L e t's stop there,

because my understandi n g i s M r. And r e would be content with that . Am I r i g h t, Mr. An dre ? Your Honor, that would

MR . A N D R E:

be fine as long a s, you know, t h e - - o n e of our Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 concerns is that, y o u know , w e sent a very limited world of RFA 's to them a n d there is no limit on RF A's . Even though we requested i t i n o u r Rule 16 conference, there are no -- in o u r initial conference with the counsel . Then w e

stipulated to the fact that t h e r e w o u l d b e n o limits o n R F A' s. So we a r e a l i t t l e b i t concerned by t h e fact that we may g e t 2 50 RFA 's from them . It would be so u n d u l y burdensome f o r u s t o have to a n s w e r them on a interrogatory b a s i s, that that would be our only concern. Maybe if counsel would agree to limit t h e n u m b e r of RFA 's in the case in total, that would be a w a y to alleviate that concern. T H E C O U R T: A l l r i g h t. I' m n o t

going to require any limitation on RFA 's. At this point, I find I 've g o t a t least a full-time j o b just dealing with t h e discovery dispute s that a r e i n f r o n t o f m e. not going t o worry about ones that might come down the pike. B u t i f they do , obviously you a l l Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] I' m

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 know how to raise a discovery dispute with m e. With respect t o t h e RFA 's, I am going to rule b y ordering that Facebook provide i n the form o f interrogatory response. I guess actually I need

to rule, Mr . A nd r e, that L eader serve an interrogatory that w o n' t c o u n t towards your limit where by you a s k f o r Facebook' s b a s i s f o r t h e responses to the R F A's . If at some point Facebook wants to serve t h e same interrogatory for t h e same limited purpose o n L eader, that interrogatory also will not count towards whatever interrogatory limit is otherwise in place . takes care of that i s s u e. A n d l e t me give y o u my ruling with respect to the first t w o i s s u e s that L eader has raised. A n d t h e r e I 'm going to deny without That

prejudice t o - - I 'm going to deny L eader' s request at this time f o r a n y further - - f o r any production of documents from other litigation o r production of additional technical documents . I want t o l e t the situation that 's in place play out , b u t only f o r a very limited additional time. A n d specifically let me tell

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

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 y o u what I' m looking f o r. My understandi n g is that L eader' s expert i s going t o b e reviewing source code this Thursday t h e 1 6th . After that r e v i e w is

complete , t h e parties a r e to meet a n d confer a n d discuss, at a minimum, these two discovery requests that Leader presented t o t h e Court today . If y o u'r e n o t able t o resolve amicably those t w o d i s p u t e s, then b y t h e end of t h e d a y next T h u r s d a y t h e 23r d, I want a single l e t t e r o n b e h a l f of both parties n o t t o e xceed a total of five pages that s e ts o u t f o r me what remains in dispute with respect to those two requests a n d what each side's proposal is f o r h o w I should resolve them. A n d I will get back to you after I get that letter a s t o whether I need further information from you a n d whether I need t o schedule a call o r i f I 'm able t o just resolve it based on t h e l e t t e r. I don 't want a n y reargument a t this time, but I do want t o make sure everybody understands what I have ruled here. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

35 1 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 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]: 09 p.m .) y o u. T H E C O U R T: MS . K E E F E: much, Your Honor. T H E C O U R T: a l l very much, counsel. B y e. (Teleconference w a s concluded at A l l r i g h t. Thank you Okay. No . A n d Ms. Keefe ? Thank you very A n y questions, Mr . A nd r e? MR . A N D R E: No , Your Honor . Thank

36 1 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 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] Heather M. Triozzi, RPR , C S R Cert. No . 1 8 4- PS IN WITNESS WHEREOF , I have hereunto set my hand and seal this 2 4th d a y o f July , 2009 , a t Wilmington. I, Heather M . Triozzi , Registered Professional Reporter, Certified Shorthand Reporter, and Notary Public , d o hereby certify that the foregoing r e c o r d, Pages 1 to 36 inclusive , i s a true a n d a c c u r a t e transcript of my stenographic n o t e s taken on July 14, 2009, in t h e a b o v e-captioned matter. CERTIFICATE OF REPORTER State of Delaware ) ) New Castle County )