TimesLines, Inc v. Facebook, Inc.

Filing 136

MEMORANDUM by Facebook, Inc. in support of motion in limine 135 to Exclude Evidence, Argument, and Testimony Regarding Non-Actionable Alleged "Confusion" (Attachments: # 1 Declaration of Brendan Hughes, # 2 Exhibit A - F)(Willsey, Peter)

Exhibit A

Page 1
1

UNITED STATES DISTRICT COURT FOR THE

2

DISTRICT OF UTAH

3
4

-oOoTIMELINES, INC.,

:
Civil Action No. 11-6867

5

Plaintiff,

:

6

-vs-

:

7

FACEBOOK, INC.,

:

8

Defendant.

:

9
10

-oOo-

11
12

TELEPHONIC DEPOSITION OF RANDY CASSIDY

13
14

Location:

15

175 South Main Street, Suite 710
Salt Lake City, Utah

16
17
18

Date:

19

September 18, 2012
9:41 a.m.

20
21

Reporter:

Denise Kirk, CSR/RPR

22
23
24

Job No. 53166

25

TSG Reporting - Worldwide

877-702-9580

Page 27
1

Q.

And the year?

2

A.

2012.

3
4

So I'm off by a year what I'm

saying, I guess.
Q.

5

No problem, I just wanted to clear it up.
So around January 24, 2012 is when you

6

first learned of Facebook's use of the term

7

"Timeline"?

8
9

A.

Yeah, that or maybe even December when

they were launching it or whatever.

10

Q.

Okay.

11

A.

Brian is a very good friend of mine.

12

Q.

Does this appear to be a true and correct

13
14

copy of the e-mail that you sent back in January 2012?
A.

15
16

19
20
21

Yes, it does.
MS. MAYALL:

Ms. Kirk, I'd like to enter

this in as Exhibit 5.

17
18

Who is Brian Hand?

(Exhibit 5 marked for identification.)
Q.

Mr. Cassidy, how did you learn about

Facebook's use of the term "Timeline"?
A.

I must have read it somewhere or saw it on

the Internet or somewhere.

22

Q.

Okay.

23

A.

I don't recall exactly, but I heard it

24
25

somewhere.
Q.

Did you get a response from Brian to this
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Page 38
1
2
3
4
5
6

Q.

Well, "before this" meaning January of

2011?
A.

Yeah.

Yeah, I knew Brian was working on

this and he had shared the site with me.
Q.

How often do you visit the Timelines web

site?

7

A.

Not very.

8

Q.

Once a month?

9

A.

No.

10

Q.

Less than?

11

A.

Yes.

12

Q.

Okay.

13
14

And you don't know if you are a

registered user?
A.

Well, if you need to be a registered user

15

to get the information that I got, then I'm probably a

16

registered user, by the theory of deduction.

17

Q.

But you are not sure?

18

A.

No.

19

Q.

Do you know if Timelines, Inc. offers any

20

of its services for sale?

21

A.

I don't.

22

Q.

Okay.

23
24
25

So we talked about Brian Hand.

Do

you know what his role is with Timelines, Inc.?
A.

Well, I would assume from his -- from this

e-mail here that he's the co-founder and chairman.
TSG Reporting - Worldwide

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Page 41
1

this is the e-mail that you sent to Brian in January

2

of 2012; is that correct?

3

A.

That is correct.

4

Q.

And is this around the time that you first

5
6
7
8
9
10

learned about Facebook's use of the term "Timeline"?
A.

It was say probably just after -- I would

say within a week or two.
Q.

So after you first learned of Facebook's

use of the term "Timeline", did you visit the
Timelines web site?

11

A.

I don't know.

12

Q.

You don't remember?

13

A.

No.

14

Q.

You don't remember mistakenly visiting the

I don't remember.

15

Timelines web site thinking it was offered by

16

Facebook?

17

MR. WELTMAN:

Object to form.

18

A.

I don't even know what you are asking.

19

Q.

Did you ever mistakenly go to

20

www.Timelines.com thinking it was offered by Facebook?

21
22

MR. WELTMAN:
A.

Object to form.

Why would I do that?

23

sold Timelines to Facebook.

24

I thought Brian had

to congratulate him.

25

Q.

That's why I called him,

When did you call him?
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Page 50
1

And so when I saw it -- I mean, it's not

2

like we talk every day or every month or every six

3

months, frankly.

4

It's one of those things that we pick up

5

wherever we happened to leave off in life.

6

that and I was excited for Brian.

7

And I saw

And, you know, it's certainly not the

8

first successful thing he's done in his life and it's

9

not the last, but it's another success and I picked

10

the phone up to congratulate him.

11

Q.

Congratulate him on what?

12

A.

On the fact that Facebook had picked up

13
14

his Timelines software -- or whatever you call it.
Q.

15

Okay, thank you.
After you learned of Facebook's use of the

16

term "Timeline", did you log into your Facebook

17

account more frequently than you did before?

18

A.

No.

19

Q.

Now, if we refer back to deposition

20

Exhibit 5, this is the e-mail that you wrote to Brian

21

Hand January 2012; correct?

22

A.

That's correct.

23

Q.

When you wrote the second sentence which

24

says:

25

Timelines software"?

"I truly believed that they were using your

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Page 51
1

A.

Yes.

2

Q.

Is there a reason why that was in past

3

tense?

4
5

A.

been in past tense?

6
7

Q.

A.

12

Well, I'm just trying to think.

why I asked you a question.

10
11

I'm just asking you a question, Mr.

Cassidy.

8
9

Is there a reason that it shouldn't have

That's

Um --

Q.

As long as it's rhetorical, I'm fine with

A.

So I wrote the e-mail in response to a

it.

13

conversation and then a followup conversation that I

14

had with Brian.

The --

15

Q.

And -- I'm sorry, go ahead.

16

A.

The first one being the conversation where

17

I thought I was congratulating him, and then the

18

second Brian called me back a couple of days later --

19

you know, it may have been a week, maybe an hour, I

20

don't know -- and said, you know, listen, based upon

21

our conversation, you know, you were clearly confused

22

as to what Facebook is doing.

23

that in an e-mail to me?

24
25

Would you mind putting

And I said:

No, not at all.

So that's what I did.
Q.

When you wrote:

"I truly believed that

TSG Reporting - Worldwide

877-702-9580

Exhibit B

Page 1
1
2

3
4

5

6

7

8

K. KOENEMAN
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMELINES, INC.,
)
)
Plaintiff,
)
)
vs.
)
Civil Action
)
No. 11-cv-06867
FACEBOOK, INC.,
)
)
Defendant.
)
----------------------)

9
10

DEPOSITION OF KEITH KOENEMAN
11

Chicago, Illinois
12

September 19, 2012
13
14
15
16
17
18
19
20
21
22
23
24
25

Reported by:
JANICE M. KOCEK, CSR, CLR
JOB NO. 53903
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Page 32
1

K. KOENEMAN

2

do you want it.

3

no, but my page still changed.

4

Q.

And I thought I always said

And when I say the word timeline

5

feature of the Facebook page, what, what does

6

that mean to you?

7

A.

Well, so here -- here is -- I

8

immediately think of Brian's company,

9

Timelines, Inc., and, and LifeSnapz --

10

MS. REPORTER:

11

THE WITNESS:

And Life -So there's, there's

12

Timelines, Inc., and then there's a Web

13

site LifeSnapz and there's a Web site

14

timelines.com.

15

So I coached basketball with Brian,

16

fourth grade basketball three years ago.

17

Basketball is a fall and winter sport.

18

it was -- you know, we started in the fall

19

of 2009, went through the winter of 2010.

20

So, so roughly from, like, October of 2009

21

to -- I'm not sure when exactly the season

22

ended, like, April, May 2010.

23

So Brian coached basketball.

It was

24

a pretty big commitment actually.

25

have practices two days a week and then
TSG Reporting - Worldwide

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So

We'd

Page 33
1

K. KOENEMAN

2

we'd have a game on Saturday.

3

plus we'd talk on the phone and, like,

4

e-mail and stuff.

5

commitment.

6

And then

So it was a pretty big

So I saw Brian at a minimum of three

7

days a week and in some weeks, you know,

8

four times or five times.

9

Q.

And how long ago was this?

10

A.

It was in -- it was about three

11

years ago.

12

was, like, September, October 2009.

13

almost three years ago right now.

So it's September of 2012 now.

It

So it was

14

Q.

Was it for only one season?

15

A.

Yes, fourth grade basketball.

But

16

from October through April, let's say, April.

17

November, December to April, so seven months.

18

And it was -- you know, it was sixteen fourth

19

grade kids.

20

played basketball, so they were really excited

21

about it.

22

kids, and sort of as parents/coaches it was a

23

pretty big deal for us.

24

it.

25

It was the first time they ever

It was a really big deal for them as

So we enjoyed doing

It was a lot of work.
Anyway, so in the course of doing
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1

K. KOENEMAN

2

you know, sort of fun for me, but it was sort

3

of important for me because I was dealing with

4

my kid.

So I paid attention to the photos.

5

And then, you know, I know Brian

6

socially as well.

7

together and, like, we -- there's a group of

8

friends that have, like, parties and stuff, so,

9

you know, I'm pretty friendly with him.

10

We've taken vacations

And so I would look at his photos

11

and I'd look at my account from LifeSnapz.

12

then also I would talk to Brian about, you

13

know, when we were coaching, you know, how's

14

your work week, did you have a rough week, was

15

it good, was it bad, whatever.

16

he'd give me updates; oh, it's really going

17

well.

18

whatever.

And

And, you know,

We have a new client, you know,

19

So I definitely had, like, a little

20

bit of knowledge that he had this company, not

21

just because I saw the photos and used the

22

site, but just because sort of like how's it

23

going, how did your week go.

24

little updates at basketball or whatever.

25

He'd give me

Anyway, so that's by background to
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1

K. KOENEMAN

2

answer your question, which was what do you

3

think of timeline.

4

immediately thought of Brian and his companies.

5

So when I heard timeline, I

So when I logged on to Facebook

6

whenever it was, roughly a year ago, and

7

Facebook offered me, like, hey, we have this

8

new timeline feature, I immediately thought of

9

Brian and his companies, Timelines and

10

Facebook.

11

my first thought was this is awesome, Brian

12

sold his company to Facebook, like, it's

13

awesome.

14

It was my first thought.

In fact,

And so I was thinking I should,

15

like, send him flowers or, like, send him a

16

basket or, like, do something celebratory for

17

Brian.

18

this was, like, a weekday, so it was like a

19

Tuesday or a Wednesday or whatever.

20

thinking I'm going to see Brian on Friday.

21

first I'll just ask him about it and then I'll

22

send him something.

23

But I didn't, because I was thinking --

So I saw him on whatever.

And I was
So

I can't

24

remember whether it Friday or Saturday, but I

25

saw him on a weekend evening at some sort of
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1

K. KOENEMAN

2

into my own house with my own key and thought I

3

was in my neighbor's house.

4
5
6

Q.

Right.

Why would I?

Because of your prior

knowledge of Timelines, Inc., and -A.

Prior knowledge that I own this

7

house and I have this key in my pocket.

8

haven't forgot that I live at 606 Arlington and

9

that my key opens the door.

I

You know, I

10

haven't forgot that I have a password on

11

LifeSnapz and when I log in to LifeSnapz, it

12

takes me to LifeSnapz.

13

Q.

Okay.

Why would I?

Just to round this out here,

14

for the rest of the deposition, I just want to

15

revisit real quickly Timelines, Inc.'s, other

16

services.

17

A.

Okay.

18

Q.

Have you -- have you ever registered

19
20

to use timelines.com?
A.

No.

But I thought about it and I,

21

I, I told you that story, which is Brian told

22

me about how excited he was about timelines.com

23

and that it had timelines, which they had been

24

developing for some time for LifeSnapz, but he

25

thought it had a much bigger potential.
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1

K. KOENEMAN

2

So I actually went to the site and I

3

sort of checked it out and looked at the

4

subjects and so forth and thought this is

5

really cool, maybe my son would like this,

6

maybe my son's teacher would like it.

7

it's a good pedagogical or educational tool.

8
9

Maybe

But, you know, at the time -- it was
three years ago.

So at the time I was

10

probably, like, 41 years old.

11

historical timelines for me as a 41-year-old

12

were sort of less relevant, but I could see how

13

they'd be very relevant for, like, my son or my

14

son's friends.

15
16
17

Q.

Those sort of

Have you used any other services

offered by Timelines, Inc.?
A.

I never registered for the

18

timelines.com site.

19

LifeSnapz.

20

Q.

I did register for

Other than LifeSnapz.

Right now I'd

21

like to just focus a little bit about any other

22

services offered by Timelines, Inc.

23

covered LifeSnapz.

24
25

So we

So with respect to timelines.com and
just getting this straight.
TSG Reporting - Worldwide

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Exhibit C

Page 1
1

ESTHER BARRON
IN THE U.S. DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

2
3
4
5
6

TIMELINES, INC.,
7

8

Plaintiff,

9

10

vs.

11

FACEBOOK, INC.,

12

Defendant.

)
)
)
)Civil Action
)No.
)
)11-CV-06867
)
)
)
)
)

13
14
15
16
17
18
19

DEPOSITION OF ESTHER BARRON
Friday, September 21, 2012
Chicago, Illinois

20
21
22
23
24
25

Reported By:
TRICIA J. FLASKA, CSR, RPR
JOB NO. 53625
TSG Reporting - Worldwide

877-702-9580

Page 12
1

ESTHER BARRON

2

A

Certainly.

3

Q

So currently, where do you work?

4

A

Northwestern University School of Law.

5

Q

Are you a professor at Northwestern?

6

A

I am a clinical associate professor.

7

Q

And what are your responsibilities as a

8
9

clinical associate professor?
A

Well, I'm also the director of the

10

Entrepreneurship Law Program at Northwestern Law

11

School, so I run our Entrepreneurship Law Center and

12

I -- which includes a clinic, and I teach

13

entrepreneurship law -- and I co-teach -- I co-teach

14

entrepreneurship law, sorry, and I co-teach venture

15

capital.

16
17

Q

And how long have you been working at

Northwestern University?

18

A

I believe eight years.

19

Q

And prior to working at Northwestern, where

20

were you employed?

21

A

Goldberg Kohn.

22

Q

What was your position at Goldberg Kohn?

23

A

I was an associate.

24

Q

And how long were you an associate at

25

Goldberg Kohn?
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Page 31
1

ESTHER BARRON

2

A

I don't recall.

3

Q

Do you think it was in the 2011 school

4

year?

5

A

I think so.

6

Q

Okay.

7

Do you think he spoke in the 2010

school year?

8

A

I think he did.

9

Q

Has he spoken to your class during this

10

year?

11

A

He has not.

12

Q

Okay.

Does he have plans to -- or do you

13

have plans to have Mr. Hand speak to your class this

14

year?

15

A

I do not have any plans for that.

16

Q

So he spoke to your class in 2011 and 2010.

17

Do you recall whether he spoke to your class in

18

2009?

19

A

I don't recall.

20

Q

And just to save time, anything before

21

2009, do you recall any specific dates in which he

22

would have spoken to your class?

23

A

I don't recall any specific dates.

24

Q

Even years?

25

A

I don't.
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Page 33
1
2

ESTHER BARRON
A

It was an entrepreneurship conference

3

co-sponsored by different departments at

4

Northwestern University.

5
6
7
8
9
10
11
12

Q

And you said he spoke on a panel; is that

correct?
A

At that conference I believe he spoke on a

panel.
Q

Do you recall seeing Mr. Hand speak at any

other conferences hosted by Northwestern?
A

I don't recall.

I don't recall seeing him

speak at other conferences.

13

Q

Any conferences at all?

14

A

Not that I recall.

15

Q

Other than speaking to your class or

16

speaking with Mr. Hand at the conference, have you

17

had any other interactions with Mr. Hand?

18

A

I have seen him at events in Chicago.

19

Q

What types of events?

20

A

Events focused on entrepreneurship.

21

Q

Are you friends with Mr. Hand, you know,

22

socially, or is it typically in that context, in

23

conferences and lectures and things like that?

24
25

A

In the context of conferences and lectures,

although -- yeah.

It's a professional relationship.

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Page 34
1
2
3

ESTHER BARRON
Q

Okay. You haven't gone on any vacations

with his family or anything?

4

A

Correct.

5

Q

So just to confirm, are you familiar with

6

any of the types of services that Timelines, Inc.

7

offers?

8
9
10
11

A

I did not go back and review what -- it

under the umbrella of Timelines.
Q

Okay.

But as of right now, what services

do you believe Timelines, Inc. offers?

12

A

I believe Photogram is part of Timelines.

13

Q

Any other services?

14

A

Just my understanding is it organizes

15

photographs in chronological order for various

16

events in a person's life.

17
18

Q

And when you said "it," you were referring

to Photogram; is that correct?

19

A

No.

20

Q

The website at Timelines.com or --

21

A

I can't be any more specific.

I'm referring to Timelines.

My

22

understanding is that Timelines is a service that

23

you use online to organize photographs of various

24

events in your life in a chronological order.

25

Q

And what are you basing that understanding
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Page 35
1
2

ESTHER BARRON
on?

Mr. Hand's lectures?

3

A

Correct.

4

Q

Anything else?

5

A

No.

6

Q

Are you -- or have you ever visited the

7
8
9
10
11
12
13
14
15
16
17
18

website Timelines.com?
A

I may have.

recollection.
Q

I don't have a specific

I would say I probably have.

And when do you think you last went to

Timelines.com?
A
class.
Q

Probably close to a visit by Brian to my
Mr. Hand.
So most likely -- he didn't visit your

class in 2012, right?
A

He did not.

So it would likely have been

in 2011.
Q

So to confirm, you believe that the last

19

time you went and visited Timelines.com would have

20

been in 2011?

21
22
23
24
25

A

Again, I don't have a specific

recollection, but that's my best guess.
Q

Okay.

Are you a registered user of

Timelines.com?
A

I don't believe so.
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Page 42
1
2
3
4
5
6
7

ESTHER BARRON
2010 or 2011?
A

I don't recall the date of the

conversation.
Q

And what was the nature of the

conversation?
A

The general nature was that I mentioned to

8

Brian Hand that when I learned of Facebook's

9

Timeline update or application, that I wondered

10
11
12
13

whether it was connected to his company in some way.
Q

And what did Mr. -- how did Mr. Hand

respond?
A

He responded -- actually, I don't remember

14

his response.

15

conversation with the understanding that it was not

16

part of his company.

17

Q

I remember coming away from the

And now that we've discussed this

18

conversation, is your memory refreshed at all as to

19

when this conversation with Mr. Hand would have

20

occurred?

21

A

No.

22

Q

Do you recall ever seeing Facebook use the

23

term "Timeline"?

24

A

A specific occurrence or just generally?

25

Q

Just generally.
TSG Reporting - Worldwide

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Exhibit D

Page 1
1

DON JENKINS
IN THE U.S. DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

2
3
4
5
6

TIMELINES, INC.,
7

8

Plaintiff,

9

10

vs.

11

FACEBOOK, INC.,

12

Defendant.

)
)
)
)Civil Action
)No.
)
)11-CV-06867
)
)
)
)
)

13
14
15
16
17
18
19

DEPOSITION OF DON JENKINS
Friday, September 21, 2012
Chicago, Illinois

20
21
22
23
24
25

Reported By:
TRICIA J. FLASKA, CSR, RPR
JOB NO. 53625
TSG Reporting - Worldwide

877-702-9580

Page 19
1

DON JENKINS

2
3
4

(Exhibit 3 marked for identification.)
BY MR. HUGHES:
Q

Mr. Jenkins, I'd just like to walk through

5

this with you real quickly.

6

Production No. 1 states, you know, "Please provide a

7

representative printed screenshots of your Facebook

8

profile, to the extent one exists, that displays

9

your post as a 'Timeline' or in chronological order,

So Request For

10

including but not limited to any screenshots that

11

bear the term 'Timeline.'"

12
13

In response to that document request, Mr.
Jenkins, what did you state?

14

A

"None."

15

Q

Why did you state that?

16

A

I do not have a Facebook profile.

17

Q

Okay.

18

Have you ever had a Facebook

profile?

19

A

No.

20

Q

Do you intend to have a Facebook profile in

21

the future?

22

A

Not in my plans.

23

Q

And why is that?

24

A

Not interested.

25

Q

And in response to Document Request No. 2,
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Page 21
1

DON JENKINS

2

Timelines, Inc., are you referring to both

3

Timelines.com and LifeSnapz.com?

4

A

Yes.

5

Q

So to confirm, you are not a registered

6

user of Timelines.com; is that correct?

7

A

No.

8

Q

And you were not a registered user of

9

LifeSnapz.com; is that correct?

10

A

That's correct.

11

Q

Great.

Mr. Jenkins, with respect to

12

Request for Production No. 3, called for "Documents

13

sufficient to identify the date you first used

14

Timeline, Inc. services."

15
16

And in response to that, what did you say,
Mr. Jenkins?

17

A

What number are we on?

18

Q

3.

19

A

I said "None."

Although, I have visited

20

the website just obviously to familiarize myself

21

with it after being produced to the concept by Brian

22

on numerous occasions.

23

Q

And when you say "the website" --

24

A

Timelines.

25

Q

Timelines.com?
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1

DON JENKINS

2

A

Right.

3

Q

Okay.

And when do you recall first

4

visiting the domain name Timelines.com -- or rather

5

the web page at the domain name Timelines --

6

A

Probably spring of 2009.

7

Q

And roughly how many times have you visited

8

Timelines.com since spring of 2009?

9

A

I don't know.

10

Q

And when was the last time that you visited

11

10, 15 times.

Timelines.com?

12

A

Probably several weeks ago.

13

Q

And why did you visit that website at that

14

time?

15

A

16
17

Just to familiarize myself with the latest

content.
Q

And prior to that do you recall visiting

18

Timelines.com -- or when was the last time before

19

that that you recall visiting Timelines.com?

20

A

Probably -- I don't remember the exact

21

timing, but it was in reference to someone had told

22

me they went on a trip and had posted some

23

information.

24

Q

You think it was in 2011 or 2010?

25

A

Probably 2011.
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1

DON JENKINS

2

2009?

3

A

Yes.

4

Q

And when was that?

5

A

Regularly.

Socially and business wise,

6

we're in related businesses and we always try to,

7

you know, share with each other what each other is

8

doing.

9

random.

And there's no regular pattern.

It's just

10

Q

Okay.

11

A

Families know each other.

12

Q

Have you gone on any vacations with Mr.

13

Hand?

14

A

No.

15

Q

How do your families know each other?

16

A

Kids participate in mutual sports and Brian

17

and I obviously have overlapping professional areas

18

of expertise.

19
20

Q

And if I recall correctly, do you have a

son; is that correct?

21

A

Yes.

22

Q

And does your son play basketball on Mr.

23

Hand's son's basketball --

24

A

25

baseball.

Yeah.

I think it was basketball and

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DON JENKINS

2

Q

Do you have any other children?

3

A

Yeah.

4

Q

Does she play any sports with Mr. Hand's

5

children?

6

A

No.

7

Q

How did you first meet Mr. Hand?

8

A

That's a good question.

9

A daughter.

Would have to just

say in the venture circles, and then when our kids

10

became involved in the same sport, you know, the

11

connection and "Don't I know you from somewhere?"

12

And kind of just started becoming professional

13

acquaintances.

14

in background.

15
16
17

Q

After that, given common interests

When did you first meet him?

Is that what

you're referencing here in fall of 2008?
A

No.

I would have to say probably six or

18

seven years ago.

19

than that.

20

ago.

21
22

Q

Actually maybe even longer ago

Probably maybe like eight or nine years

Is that in connection with any other

business ventures started by Mr. Hand?

23

A

No.

24

Q

So your first meeting with Mr. Hand, do you

25

No.

recall what the nature of that was?
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1
2
3
4
5
6
7

DON JENKINS
website?
A

Yeah.

I already stated that I've been on

there in the past several weeks.
Q

Did you ever visit the Timelines.com

website believing that it was offered by Facebook?
A

Only after the discovery of the report in

8

the media that they had offered something similar.

9

I was assuming that it was purchased by Facebook.

10

Q

And when you visited the Timelines website

11

did you believe that it was offered by Facebook at

12

that time?

13

A

No.

When you visited the website.
What happened was I saw information

14

that led me to believe that the company had been

15

purchased by Facebook.

16

assumption.

17

a press release that would say, hey, we've just

18

purchased this company for so many X of millions of

19

dollars or what have you and none of that

20

information was available, which wouldn't be

21

necessarily uncommon, and was just under the

22

impression that, you know, Brian had, once again,

23

successfully built a company and had sold it off to

24

a very large company, which he's got a track record

25

of doing.

At least that was my

And then looked on the website to find

TSG Reporting - Worldwide

877-702-9580

Exhibit E

Page 1
1
2

3
4
5

6

7

8

9
10
11
12
13

14

PAM COLE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
- - Timelines, Inc.,
:
:
Plaintiff,
:
:
vs.
: Case No.
: 11-CV-06867
Facebook, Inc.,
:
:
Defendant.
:
- - DEPOSITION OF PAM COLE
- - Tuesday, September 18, 2012
9:40 a.m.
3242 West Henderson Road, Suite A
Columbus, Ohio 43220

15
16

- - 17

18

SHAYNA M. GRIFFIN
REGISTERED PROFESSIONAL REPORTER
CERTIFIED REALTIME REPORTER

19

- - 20
21
22
23
24

Job No: 53167

25

TSG Reporting - Worldwide

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Page 18
1

PAM COLE

2

Inc.?

3

A.

Yes.

4

Q.

And what is Timelines, Inc.?

5

A.

Timelines, Inc., is a company that

6

provides services based around the idea of a

7

timeline.

8

LifeSnapz, which is a photo -- a photo organization

9

site where you can selectively share photos with

The one that I have used most is

10

others.

11

Q.

12

around a timeline.

13

what a timeline is?

14

You said that Timelines provides services
What's your understanding of

MR. WELTMAN:

Object to form and

15

foundation.

16

A.

17

information in a chronological way.

18

Q.

19

learned about Timelines, Inc.?

20

A.

21

daughter was born, so I think 2008.

22

Q.

23

Inc.?

24

A.

25

software developer, I believe.

A timeline is an organization of

Okay.

Do you remember when you first

Well, it was around the time my first

Okay.

How did you learn about Timelines,

My brother works for the company.

TSG Reporting - Worldwide

He's a

And he told us about
877-702-9580

Page 19
1

PAM COLE

2

it.

3

Q.

What's your brother's name?

4

A.

His name is Geoffrey Buesing.

5

Q.

Do you know how long he has been with

6

Timelines, Inc.?

7

A.

8

with Timelines, Inc., but I do know that he's been

9

there at least as long as I've heard of it, so at

I do not know exactly how long he's been

10

least since 2008.

11

with some of these people for quite a while.

12

Q.

And you said he's a software developer?

13

A.

I think that's what he is, yes.

14

Q.

Okay.

15

Timelines, Inc., website?

16

A.

Yes.

17

Q.

Do you visit the website?

18

A.

I do.

19

Q.

Are you a registered user of the website?

20

A.

I am a registered user of LifeSnapz, which

21

is a product of theirs.

22

register of the Timelines website.

23

Q.

24

LifeSnapz and Timelines, Inc., in terms of the

25

services that they respectively provide?

Okay.

But I believe he's been working

Are you familiar with the

But I do not know if I'm a

And is there a difference between

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Page 21
1

PAM COLE

2

and I think it's the same people, but I'm not sure

3

if it's actually a Timelines product or a separate

4

product.

5

Q.

6

you visited the Timelines, Inc., website?

7

A.

Do I remember the date or what?

8

Q.

Yes, the date.

9

A.

It was probably 2008 sometime.

10

Q.

Okay.

11

A.

Probably shortly before or after the birth

12

of my oldest daughter, so maybe sometime in the

13

summer of 2008.

14

Q.

15

your first visit to the website?

16

A.

I did.

17

Q.

What do you do on the Timelines website as

18

a registered user?

19

A.

20

Timelines website itself that I'm aware of.

21

that you can share pictures that you have of events

22

such as if you go to some kind of event where

23

there's a crowd of people, you can put your pictures

24

up there, and I think other people can put their

25

pictures up there and organize them together.

Okay.

Do you remember the first time that

Did you register at or around the time of

I haven't really done anything on the

TSG Reporting - Worldwide

877-702-9580

I know

But I

Page 22
1

PAM COLE

2

haven't actually done that.

3

Q.

4

Timelines website?

5

A.

6

separate from LifeSnapz's website?

7

Q.

Yes.

Right now we are, yes.

8

A.

Okay.

Not very frequently.

9

Q.

Like over the past six months, have you

How often have you logged into the

And we're talking about Timelines' website

10

logged into the website?

11

A.

I have not.

12

Q.

The past year?

13

A.

I do not think I have.

14

at it really briefly before.

15

Q.

16

start using the Timelines, Inc., website more

17

frequently?

18

A.

I don't currently have any plans to.

19

Q.

Okay.

20

you're not currently using or interested in

21

particularly right now; correct?

22

A.

23

I've only looked

Do you have any plans or do you intend to

So it sounds like it's a service

That's correct.
MR. WELTMAN:

24

BY MR. BADOLATO:

25

Q.

Object to the form.

Do you know if Timelines, Inc., offers any
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Page 30
1

PAM COLE

2

that they were trying to -- he told me they were

3

trying to find ways to use it, trying to find ways

4

to monetize it, the product they had made.

5

Q.

6

Timelines -- were you thinking Timelines, Inc., had

7

sold a timeline to Facebook?

8

A.

9

him.

So that being the case, did you think that

Well, I didn't know.

That's why I asked

I didn't know if he had sold it to Facebook or

10

if they had some sort of software that you could use

11

on Facebook or what it was.

12

Facebook timeline was actually out there and in use.

13

So I couldn't -- you know, I couldn't look at it.

14

Q.

15

And this is before the

Right.
Did your brother respond to your question

16

in this e-mail?

17

A.

He did not.

18

Q.

Did you ever follow up with him about the

19

question?

20

A.

21

as opposed to e-mail.

22

Q.

Do you remember what he said?

23

A.

I don't remember what he said, but he did

24

say that it was not their Timelines product that

25

Facebook was doing.

I think that I talked to him on the phone

TSG Reporting - Worldwide

877-702-9580

Exhibit F

Page 1
1

THOMAS R. FALLON

2

IN THE UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF ILLINOIS

4

EASTERN DIVISION

5

--------------------------------------------------------

6

TIMELINES, INC.,

7
8
9

Plaintiff,
-vsFACEBOOK, INC.,

10
11

Case No. 11-CV-06867

Defendant.
--------------------------------------------------------

12
13
14

Examination of THOMAS R. FALLON, taken at

15

the instance of the Defendant, under and pursuant to the

16

Federal Rules of Civil Procedure, before

17

JESSICA R. WAACK, Certified Realtime Reporter, Registered

18

Diplomate Reporter, Certified Shorthand Reporter and

19

Notary Public in and for the State of Wisconsin, at

20

735 North Water Street, Milwaukee, Wisconsin, on Tuesday,

21

September 25, 2012, commencing at 1:29 p.m. and concluding

22

at 2:07 p.m.

23
24

Job No. 53573

25

TSG Reporting - Worldwide

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Page 6
1
2

THOMAS R. FALLON
Q

3

Do you have any questions about the process or the
procedure we'll be following today?

4

A

No.

5

Q

In order to prepare for today's deposition, did

6
7

you speak with anybody at Timelines, Inc.?
A

8

I believe I mentioned I was going to be deposed to
Bob Armour.

9

Q

And when did you mention that?

10

A

Probably the day or two after I got the initial

11

phone call from whoever I got the phone call from.

12

Q

You don't recall who called you?

13

A

I do not.

There's been three or four different

14

people saying I'm with so and so, I'm with so and

15

so.

16

Q

17

I don't know who everybody is, no.

Okay.

And when you say you mentioned it to Bob

Armour, was that over a telephone conversation?

18

A

I believe it was in person.

19

Q

How do you know Bob Armour?

20

A

He is my brother-in-law.

21

Q

When was the first time that you met Mr. Armour?

22

A

Seventeen, eighteen years ago.

23

Q

And what was the nature of the conversation that

24
25

you had with him?
A

Just told him that I was contacted by someone to
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Page 13
1

THOMAS R. FALLON

2

appears to be a true and correct copy of the

3

subpoena that was served upon you.

4

A

It appears to be, yes.

5

Q

Thank you.

6

If you can please turn to what's

identified at the bottom.

7

A

Okay.

8

Q

Okay.

It's page No. 4.

9

And at the top of that document, it says,

"Request For Documents and Things."

10

A

Yes.

11

Q

Great.

I'm just going to review each one of these

12

and ask you some questions.

13

production No. 1, we had asked for,

14

"Representative print screenshots of your Facebook

15

profile, to the extent one exists, that displays

16

your posts as a 'timeline' or in chronological

17

order, including but not limited to any

18

screenshots that bear the term 'timeline.'"

19

read that correctly?

20

A

Yes.

21

Q

Okay.

So for request for

22

And you don't have any documents in

response to this request?

23

A

No.

24

Q

So you do not use Facebook?

25

A

No.

I do not have a Facebook profile, no.
TSG Reporting - Worldwide

877-702-9580

Did I

Page 14
1

THOMAS R. FALLON

2

Q

Okay.

3

A

I don't think so.

4

Q

So just to be -- to confirm, have you ever had a

5

Have you ever visited the Facebook website?

Facebook profile?

6

A

I have never had a Facebook profile.

7

Q

Okay.

8

Thank you.

Are you familiar with what

Facebook is?

9

A

Yes.

10

Q

What is it?

11

A

A social network.

12

Q

Do you recall when you first learned about

13

Facebook?

14

A

I do not.

15

Q

More than five years ago?

16

A

I would think so, yes.

17

Q

Okay.

18

Are you familiar with any other social

networks that are provided on the Internet?

19

A

Yes.

20

Q

Which ones?

21

A

Twitter, Pinterest, LinkedIn, all of those.

22

Q

Do you use Twitter?

23

A

I do not.

24

Q

Do you use Pinterest?

25

A

I do not.
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Page 15
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THOMAS R. FALLON

2

Q

Do you use LinkedIn?

3

A

I do not, but apparently -- my company has me set

4
5

up on LinkedIn.
Q

Okay.

I have never used it.

So is it fair to say that you don't use any

6

of those social networks that are available

7

online?

8

A

Yes.

9

Q

Okay.

10

MS. MAYALL:

I'd like to go back to --

11

let me take a step back.

12

designate the subpoena for document requests as

13

Deposition Exhibit 2, so I can refer to it going

14

forward.

15

BY MS. MAYALL:

16

Q

If we can please

So going back to Deposition Exhibit 2 on page 4

17

here of the requests for production, I'd like to

18

move on to request for production No. 2,

19

"Documents sufficient to show your use of

20

Timelines, Inc.'s services."

21

And you didn't produce any documents in

22

response to this request, is that correct?

23

A

Yes.

24

Q

So you do not use Timelines, Inc.'s services?

25

A

No.
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Page 18
1
2

THOMAS R. FALLON
Q

Okay.

And Timelines, Inc. at

3

www.timelinesinc.com, do you have an idea of what

4

services are offered at that website?

5

A

Similar situation.

I believe you can put in a

6

time, and it says all the things -- all the things

7

that happened around that time.

8

have that much of a recollection of what it --

9

what all was involved.

10

Q

Okay.

Fair enough.

I really don't

So other than Mr. Armour

11

possibly signing you up for the Timelines, Inc.

12

at www.timelinesinc.com website, you've never

13

visited the website or registered or logged in

14

yourself?

15

A

No.

16

Q

Okay.

And same question for LifeSnapz.

Other

17

than Mr. Armour possibly registering you for

18

LifeSnapz, you've never independently visited

19

their website or logged in yourself?

20

A

No.

21

Q

Okay.

I'd like to go back to Deposition Exhibit

22

No. 2 and just move on to request for production

23

No. 3, "Documents sufficient to identify the date

24

you first learned of Timelines, Inc.'s services."

25

You don't have any documents responsive
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THOMAS R. FALLON

2

said, is that you guys?

3

not.

4

Q

But you hadn't -- okay.

5

Sorry.

Strike that.

What do you mean by, "Is that you guys?"

6
7

And he said, no, it's

You just asked him, "Is that you guys?"
A

Yeah, he had talked to me previously about this

8

new thing that he had called Timelines.

9

after six months, three months, whatever it was,

Sometime

10

Facebook coming out with something called

11

Timelines.

12

thing.

13

he said no.

14

Q

15
16

A

And

And what do you mean by, "Did you guys hook up

I thought maybe they sold their service to
Facebook.

Q

19
20

Did you guys hook up with Facebook?

with Facebook?"

17
18

And I said, hey, they're using your

And then other than Mr. Armour saying no, did he
have any response?

A

I'm sure he did, yes.

I don't recall what it was.

21

But he was very emphatic saying it wasn't him, and

22

he wasn't happy about it.

23

Q

24
25

Did he express to you why he wasn't happy about
it?

A

No.

I had assumptions on my part, but, no, he
TSG Reporting - Worldwide

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