TimesLines, Inc v. Facebook, Inc.

Filing 101

DECLARATION of Brendan Hughes regarding reply 99 , reply to response to motion 98 (Attachments: # 1 Exhibit 1 - 2)(Hughes, Brendan)

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Exhibit 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION TIMELINES, INC., Plaintiff, v. FACEBOOK, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 11-cv-06867 Judge John W. Darrah PLAINTIFF TIMELINES, INC.’S RESPONSE TO DEFENDANT FACEBOOK, INC.’S SECOND SET OF REQUESTS FOR ADMISSION Plaintiff Timelines, Inc., by its attorneys, and pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, responds to Defendant Facebook, Inc.’s Second Set of Requests for Admission (the “Requests”) as follows: General Responses and Objections 1. Timelines, Inc. objects to these Requests to the extent they purport to require it to obtain information outside of its possession, custody and control or from other persons or entities. 2. Timelines, Inc. objects to each Request to the extent that it seeks information protected from discovery by applicable privileges. In particular, Timelines, Inc. objects to each Request to the extent that it seeks information protected from discovery by the attorney-client privilege, the work-product doctrine and/or any other applicable privilege. No privileged information will be produced. Additionally, any objection based on any of these privileges or protections should not be construed as a representation that such information exists or existed. Such objection indicates only that the Request is of such a scope as to embrace subject matter protected by these privileges and protections. 3. Timelines, Inc. objects to the “Definitions” and “Instructions” contained in these Requests to the extent that they cause unnecessary confusion by attempting to alter the plain meaning of words and attempt to expand, alter, modify or change in any way Timelines, Inc.’s minimal duties in responding under Federal Rule of Civil Procedure 36. Specifically, Timelines, Inc. objects to Facebook, Inc.’s attempts to alter or expand the plain meaning of the Terms: “present tense,” “singular,” “and,” “or,” “any,” “all,” “documents” and “including.” Timelines, Inc. has used the plain meaning of these terms in its answers. 4. In answering these Requests, Timelines, Inc. has used the plain meaning of “Timelines, Inc.” and responded as required by the minimal obligations of the Federal Rules of Civil Procedure without expanding the entity to include other persons not required to be included in responding under the rules. 5. Timelines, Inc. objects to Facebook, Inc.’s use of the word “timelines” in a generic sense in the Requests. Timelines, Inc. also objects to the defined terms “Timelines Application” and “Timelines Registration” as they inaccurately characterize Timelines, Inc.’s trademarks. TIMELINES is the trademark that Timelines, Inc. uses as an identifier for its goods and services. “Timelines” (U.S. Reg. No. 3,684,074 and pending U.S. Application No. 85,432,026), “Timelines.com” (U.S. Reg. No. 3,764,134), and the “Timelines” design mark (U.S. Reg. No. 3,784,720) are collectively referred to in this document as the “TIMELINES Mark(s).” 6. Timelines, Inc. objects to the Requests to the extent they call for information that is publicly available and/or seeks information already within Facebook, Inc.’s knowledge, possession, custody or control. 7. These General Responses and Objections are incorporated into each individual -2- response that follows. Responses to Requests for Admission REQUEST NO. 17: Admit that the document bearing Bates Numbers FB_TL00000403-432 is a true and authentic copy of web pages from YOUR LifeSnapz website, as it existed on May 23, 2012. RESPONSE TO REQUEST NO. 17: Timelines, Inc. objects to this Request on the ground that it seeks discovery that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000403432 is a true and correct copy of certain pages of the LifeSnapz.com website, as those pages existed on May 23, 2012, but denies the implication that the document bearing Bates Numbers FB_TL00000403-432 is a true and correct copy of the complete LifeSnapz.com website, as it existed on that date. REQUEST NO. 18: Admit that the document bearing Bates Numbers FB_TL00000534-544 is a true and authentic copy of a version of The Boston Globe’s online “2010 Massachusetts Gubernatorial Election Timeline,” powered by YOU, as it existed on October 10, 2011. RESPONSE TO REQUEST NO. 18: Timelines, Inc. objects to this Request on the ground that it seeks discovery that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000534544 is a true and correct copy of The Boston Globe’s webpage entitled “2010 Massachusetts Gubernatorial Election Timeline,” powered by Timelines, Inc., as it existed on October 10, 2011. REQUEST NO. 19: Admit that the document bearing Bates Numbers FB_TL00000545-547 is a true and authentic copy of a version of the “Al Capone Timeline” provided by YOU on YOUR WEBSITE, as it existed on September 29, 2011. RESPONSE TO REQUEST NO. 19: Subject to the General Responses and Objections, -3- Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000545-547 is a true and correct copy of the Al Capone topic page on Timelines.com, as it existed on September 29, 2011. Timelines, Inc. denies the remaining facts as stated in this Request. REQUEST NO. 20: Admit that the document bearing Bates Numbers FB-TL00000548-550 is a true and authentic copy of a version of the “Amelia Earhart Timeline” provided by YOU on YOUR WEBSITE, as it existed on October 2, 2011. RESPONSE TO REQUEST NO. 20: Timelines, Inc. objects to this Request as indefinite, vague and ambiguous as it lacks a URL and date. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000548-550 is a true and correct copy of a version of the Amelia Earhart topic page on Timelines.com. Timelines, Inc. denies the remaining facts as stated in this Request. REQUEST NO. 21: Admit that the document bearing Bates Number FB_TL00000553 is a true and authentic copy of a version of The Boston Globe’s online “Celtics Timelines,” powered by YOU, as it existed on October 10, 2011. RESPONSE TO REQUEST NO. 21: Timelines, Inc. objects to this Request on the ground that it seeks discovery that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Number FB_TL00000553 is a true and correct copy of The Boston Globe’s webpage entitled “Celtics Timelines,” powered by Timelines, Inc., as it existed on October 10, 2011. REQUEST NO. 22: Admit that the document bearing Bates Number FB_TL00000558-559 is a true and authentic copy of an excerpt from the “Battle of Bull Run Timeline” that YOU have provided on YOUR WEBSITE. RESPONSE TO REQUEST NO. 22: Timelines, Inc. objects to this Request as indefinite, -4- vague and ambiguous as it lacks a URL and date. Timelines, Inc. also objects to this Request as the term “excerpt” is vague and ambiguous. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000558-559 includes incomplete and therefore inaccurate screen shots of the Battle of Bull Run topic page on Timelines.com. Timelines, Inc. denies the remaining facts as stated in this Request. REQUEST NO. 23: Admit that the document bearing Bates Numbers FB_TL00000563-566 is a true and authentic copy of a version of YOUR “Events That Happened In” webpage on YOUR WEBSITE, as it existed on September 29, 2011. RESPONSE TO REQUEST NO. 23: Subject to the General Responses and Objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL000000563-566 is a true and correct copy of the webpage entitled “Events That Happened In …” on Timelines.com, as it existed on September 29, 2011. Timelines, Inc. denies the remaining facts as stated in this Request. REQUEST NO. 24: Admit that the document bearing Bates Number FB_TL00000567 is a true and authentic copy of YOUR “First Timeline Test” webpage on YOUR WEBSITE, as it existed on October 2, 2011. RESPONSE TO REQUEST NO. 24: Timelines, Inc. objects to this Request on the ground that it seeks discovery that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Number FB_TL00000567 is a true and correct copy of a webpage entitled “First timeline test” on Timelines.com, as it existed on October 2, 2011, but Timelines, Inc. denies that Timelines, Inc., or anyone acting on its behalf, created the webpage. REQUEST NO. 25: Admit that the document bearing Bates Numbers FB_TL00000568-569 is -5- a true and authentic copy of a version of the Daily News’ online “Knicks Timelines,” powered by YOU, as it existed on October 10, 2011. RESPONSE TO REQUEST NO. 25: Timelines, Inc. objects to this Request on the ground that it seeks discovery that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000568569 is a true and correct copy of the New York Daily News’s webpage entitled “Knicks Timelines,” powered by Timelines, Inc., as it existed on October 10, 2011. REQUEST NO. 26: Admit that the document bearing Bates Number FB TL00000570 is a true and authentic copy of YOUR “Learn More” webpage on YOUR WEBSITE, as it existed on October 2, 2011. RESPONSE TO REQUEST NO. 26: Subject to the General Responses and Objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000570 is a true and correct copy of a webpage from Timelines.com with the URL http://timelines.com/learn_more, as it existed on October 2, 2011. Timelines, Inc. denies the remaining facts as stated in this Request. REQUEST NO. 27: Admit that the document bearing Bates Numbers FB_TL00000571-572 is a true and authentic copy of the Journal Sentinel’s online “Brewers Timelines,” powered by YOU, as it existed on October 10, 2011. RESPONSE TO REQUEST NO. 27: Timelines, Inc. objects to this Request on the ground that it seeks discovery that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000571572 is a true and correct copy of the Milwaukee Journal Sentinel’s webpage entitled “Brewers Timelines,” powered by Timelines, Inc., as it existed on October 10, 2011. -6- REQUEST NO. 28: Admit that the document bearing Bates Numbers FB_TL00000573-574 is a true and authentic copy of the February 22, 2010 entry on the Daily News’ online New York Knicks timeline, powered by YOU, as it existed on October 10, 2011. RESPONSE TO REQUEST NO. 28: Timelines, Inc. objects to this Request on the ground that it seeks discovery that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000573574 is a true and correct copy of a New York Daily News webpage with the URL http://timelines.nydailynews.com/knicks/2010/2010/2/22/new-york-knicks-vs-milwaukee-bucks, powered by Timelines, Inc., as it existed on October 10, 2011. Timelines, Inc. denies the remaining facts as stated in this Request. REQUEST NO. 29: Admit that the document bearing Bates Numbers FB_TL00000575-577 is a true and authentic copy of a version of YOUR “Popular Timelines” webpage on YOUR WEBSITE, as it existed on October 2, 2011. RESPONSE TO REQUEST NO. 29: Subject to the General Responses and Objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000575-577 is a true and correct copy of a webpage entitled “Popular Timelines” on Timelines.com, as it existed on October 2, 2011. REQUEST NO. 30: Admit that the document bearing Bates Numbers FB_TL00000578-579 is a true and authentic copy of a version of Rod Blagojevich.com timeline offered by YOU for the year 2011, as it existed on October 10, 2011. RESPONSE TO REQUEST NO. 30: Timelines, Inc. objects to this Request on the ground that it seeks discovery that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000578- -7- 579 is a true and correct copy a webpage with the URL http://rodblagojevich.com/, powered by Timelines, Inc., as it existed on October 10, 2011. Timelines denies the remaining facts as stated in this Request. REQUEST NO. 31: Admit that the document bearing Bates Numbers FB_TL00000580-597 is a true and authentic copy of a version of Rod Blagojevich.com timeline of the year 2010 offered by YOU, as it existed on October 10, 2011. RESPONSE TO REQUEST NO. 31: Timelines, Inc. objects to this Request on the ground that it seeks discovery that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000578579 is a true and correct copy a webpage with the URL http://rodblagojevich.com/2010, powered by Timelines, Inc., as it existed on October 10, 2011. Timelines denies the remaining facts as stated in this Request. REQUEST NO. 32: Admit that the document bearing Bates Numbers FB_TL00000598-601 is a true and authentic copy of YOUR July 17, 2009 blog post entitled “So, who should use Timelines.com?” located on YOUR WEBSITE, as it existed on October 2, 2011. RESPONSE TO REQUEST NO. 32: Subject to the General Responses and Objections, Timelines, Inc. denies the facts as stated in this Request. REQUEST NO. 33: Admit that the document bearing Bates Numbers FB_TL00000607-608 is a true and authentic copy of stltoday.com’s online Rams Timelines, powered by YOU, as it existed on October 10, 2011. RESPONSE TO REQUEST NO. 33: Timelines, Inc. objects to this Request on the ground that it seeks discovery that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to the General Responses and Objections and the foregoing objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000607- -8- 608 is a true and correct copy of stltoday.com’s webpage entitled “Rams Timelines,” powered by Timelines, Inc., as it existed on October 10, 2011. REQUEST NO. 34: Admit that the document bearing Bates Numbers FB_TL00000611-613 is a true and authentic copy of a version of search results that could be generated by searching for “timeline” on YOUR WEBSITE. RESPONSE TO REQUEST NO. 34: Timelines, Inc. objects to this Request as vague, ambiguous, indefinite and unintelligible as written. In particular, the document bearing Bates Numbers FB_TL00000611-613 fails to contain any URL or date and the phrase “could be generated by searching for ‘timeline’” is vague and ambiguous such that Timelines, Inc. cannot answer the Request as written. Subject to the General Responses and Objections and the foregoing objections, to the extent a response is required, Timelines, Inc. denies the facts as stated in this Request. REQUEST NO. 35: Admit that the document bearing Bates Numbers FB_TL00000614-650 is a true and authentic copy of YOUR blog on YOUR WEBSITE, as it existed on September 29, 2011. RESPONSE TO REQUEST NO. 35: Subject to the General Responses and Objections, Timelines, Inc. admits that the document bearing Bates Number FB_TL00000614-650 is a true and correct copy of a blog at Timelines.com with the URL http://blog.timelines.com/, as it existed on September 29, 2011. REQUEST NO. 36: Admit that the document bearing Bates Number FB_TL00000651 is a true and authentic copy of a version of YOUR webpage entitled “Timelines.com Launches,” that has been provided on YOUR WEBSITE. RESPONSE TO REQUEST NO. 36: Subject to the General Responses and Objections, Timelines, Inc. admits that the document bearing Bates Number FB_TL00000651 is a true and correct copy of a webpage of the blog at Timelines.com entitled “Timelines.com Launches” with -9- the URL http://blog.timelines.com/2009/04/21/timelinescom-launches/. REQUEST NO. 37: Admit that the document bearing Bates Numbers FB_TL00000660-663 is a true and authentic copy of a version of YOUR “Frequently Asked Questions” located on YOUR WEBSITE, as it existed on October 2, 2011. RESPONSE TO REQUEST NO. 37: Subject to the General Responses and Objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00000660-663 is a true and correct copy of a webpage entitled “Frequently Asked Questions” on Timelines.com, as it existed on October 2, 2011. REQUEST NO. 38: Admit that the document bearing Bates Numbers FB_TL00010370-10465 is a true and authentic copy of YOUR blog, “Archive for 2008,” available on YOUR WEBSITE, as it existed on July 30, 2012. RESPONSE TO REQUEST NO. 38: Subject to the General Responses and Objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00010370-10465 is a true and correct copy of various webpages of the blog at Timelines.com entitled “Archive for 2008” with the URL http://blog.timelines.com/2008/, as it existed on July 30, 2012. REQUEST NO. 39: Admit that the document bearing Bates Numbers FB_TL00010466-10626 is a true and authentic copy of YOUR blog, “Archive for 2009,” available on YOUR WEBSITE, as it existed on July 30, 2012. RESPONSE TO REQUEST NO. 39: Subject to the General Responses and Objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00010466-10626 is a true and correct copy of various webpages of the blog at Timelines.com entitled “Archive for 2009” with the URL http://blog.timelines.com/2009/, as it existed on July 30, 2012. REQUEST NO. 40: Admit that the document bearing Bates Numbers FB_TL00010627-10819 is a true and authentic copy of YOUR blog, “Archive for 2010,” available on YOUR WEBSITE, as it existed on July 30, 2012. RESPONSE TO REQUEST NO. 40: Subject to the General Responses and Objections, - 10 - Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00010627-10819 a true and correct copy of various webpages of the blog at Timelines.com entitled “Archive for 2010” with the URL http://blog.timelines.com/2010/, as it existed on July 30, 2012. REQUEST NO. 41: Admit that the document bearing Bates Numbers FB_TL00010820-10852 is a true and authentic copy of YOUR blog, “Archive for 2011,” available on YOUR WEBSITE, as it existed on July 30, 2012. RESPONSE TO REQUEST NO. 41: Subject to the General Responses and Objections, Timelines, Inc. admits that the document bearing Bates Numbers FB_TL00010820-10852 is a true and correct copy of various webpages of the blog at Timelines.com entitled “Archive for 2011” with the URL http://blog.timelines.com/2011, as it existed on July 30, 2012. REQUEST NO. 42: Admit that YOU use Facebook’s “timeline” feature for YOUR Facebook page. RESPONSE TO REQUEST NO. 42: Subject to the General Responses and Objections, Timelines, Inc. admits that Timelines, Inc. uses Facebook Timeline. Timelines, Inc. denies the remaining facts as stated in this Request, including the implication that Facebook, Inc. uses the word “timeline” in a generic manner. REQUEST NO. 43: Admit that YOUR revenues have not decreased since Facebook launched the “timeline” feature of its new user interface. RESPONSE TO REQUEST NO. 43: Subject to the General Responses and Objections, Timelines, Inc. denies the facts as stated in this Request, including the implication that Facebook, Inc. uses the word “timeline” in a generic manner. REQUEST NO. 44: Admit that YOUR revenues have increased since Facebook launched the “timeline” feature of its new user interface. Response To Request No. 44: Subject to the General Responses and Objections, Timelines, Inc. denies the facts as stated in this Request, including the implication that Facebook, Inc. uses the - 11 - word “timeline” in a generic manner. Dated: September 4, 2012 Respectfully submitted, TIMELINES, INC. By: /s/ Raven Moore One of its Attorneys James T. Hultquist (#6204320) Douglas Alan Albritton (#6228734) Raven Moore (#6280665) REED SMITH LLP 10 South Wacker Drive, 40th Floor Chicago, Illinois 60606-7507 (312) 207-1000 (312) 207-6400 (facsimile) jhultquist@reedsmith.com dalbritton@reedsmith.com rmoore@reedsmith.com - 12 - CERTIFICATE OF SERVICE I, Raven Moore, one of the attorneys for Plaintiff Timelines, Inc., do hereby certify that on September 4, 2012, I caused a copy of the foregoing document to be served via electronic mail to the following counsel: Peter Willsey Brendan J. Hughes Cooley LLP Washington, DC 777 6th Street, NW Suite 1100 Washington, DC 20001 pwillsey@cooley.com Jeffrey T. Norberg Cooley LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 jnorberg@cooley.com /s/ Raven Moore An attorney Exhibit 2 Page 1 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF ILLINOIS 4 EASTERN DIVISION 5 6 7 TIMELINES, INC., ) ) 8 Plaintiff, ) ) 9 vs. ) No. 11-CV-06867 ) 10 FACEBOOK, INC., ) ) Judge John W. Darrah 11 Defendant. ) ___________________________) 12 13 14 HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY 15 16 17 VIDEOTAPED DEPOSITION OF BRIAN HAND 18 Chicago, Illinois 19 Thursday, September 20, 2012 20 21 22 23 Reported by: 24 PAULA CAMPBELL, CSR, RDR, CRR, CCP 25 JOB NO. 53018 TSG Reporting - Worldwide 877-702-9580 Page 190 1 2 HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY - B. HAND A. So month -- month 43 would be August of 3 2012. 4 Analytics. 5 1470, that would be the last month. 6 the top of 1469 it gives you the date range. This is the way the report comes from Google So if you go to the end, on page Bates That's -- on 7 Q. Okay. 8 A. So that would be the last month. 9 10 11 12 And then 43 would be August, 42 would be July of 2012, and on backwards. Q. And so 1 would be January of 2009. So if you look at the last page of the document, 1471? 13 A. 1471? 14 Q. What is your understanding of the meaning Okay. 15 of the phrase "unique visitors" toward the bottom 16 half of the page? 17 A. Visitors who have visited once within the 18 time frame of -- I don't know what Google Analytics 19 looks like. 20 hours. 21 comes back twice in a day, or twice within a 24- or 22 48-hour period, they are not counted twice. 23 Is it -- it might be 24 hours or 48 They have a time period. So if somebody So the difference between visits and unique 24 visitors, I believe, is people who have visited 25 twice in a day. TSG Reporting - Worldwide 877-702-9580 Page 191 1 HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY - B. HAND 2 Q. When you say people, though, isn't it more 3 accurate to say these are visits from a particular 4 domain name address? 5 A. No, no. 6 Q. And how -- how is that, if you know, how is 7 These are actual individuals. that tracked? 8 A. You have to ask Google. 9 Q. For example, if I -- if I had a gmail 10 address and a work e-mail address, and I access 11 Timelines.com from my work computer, and then I went 12 and accessed it from my home gmail -- 13 A. Yeah, they wouldn't be able to pick that 14 up. 15 servers that can do that. As with any -- I don't think there is any 16 17 18 Again, this is visitors. You don't have to be registered to be a visitor. Q. Okay. I'm just -- it doesn't matter. 19 is the updated document. 20 This match up. 21 I don't care. The figures And do you have a basis for estimating how 22 many of these unique visitors are located within the 23 U.S.? 24 25 A. I think I could probably get that from Google Analytics. I have to look and see. TSG Reporting - Worldwide 877-702-9580

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