TimesLines, Inc v. Facebook, Inc.

Filing 165

RESPONSE by Plaintiff TimesLines, Inc to motion in limine 148 (Attachments: # 1 Exhibit A)(Albritton, Douglas)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMELINES, INC.
Plaintiff/Counter-Defendant,
v.
FACEBOOK, INC.
Defendant/Counter-Plaintiff.

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Civil Action No.: 11 CV 6867
HONORABLE JOHN W. DARRAH
Jury Trial Demanded

TIMELINES’ RESPONSE BRIEF IN OPPOSITION TO FACEBOOK’S
MOTION IN LIMINE NO. 7: TO EXCLUDE EVIDENCE, ARGUMENT, AND
TESTIMONY REGARDING ALLEGATIONS OF FACEBOOK’S “GENERAL
DISRESPECT FOR THE RIGHTS OF OTHERS”
Plaintiff/Counter-Defendant Timelines, Inc. (“Timelines” or “Plaintiff”) submits this
response brief in opposition to Defendant/Counter-Plaintiff Facebook, Inc.’s (“Facebook”)
Motion In Limine No. 7: To Exclude Evidence, Argument, and Testimony regarding allegations
of Facebook’s “general disrespect for the rights of others” (“Motion”), and states as follows:
INTRODUCTION
Facebook’s Motion should be denied for the simple and straight forward reason that it is
overly broad and vague. Facebook seeks to exclude evidence related Facebook’s “disrespect for
the rights of others.” (Mtn. pp. 1,2,4.) But because Facebook does not explain or sufficiently
identify the specific evidence it wants to exclude, Timelines cannot determine which evidence it
can or cannot offer at trial.

Facebook, for instance, fails to describe any specific testimony,

conduct, or evidence within the broad category of what Facebook refers to as Facebook’s
“general disrespect for the rights of others.”

The closest Facebook comes to using any

specificity is its obscure reference to a “purported hacking culture.” But Facebook again does
not sufficiently explain what this means or, more specifically, which particular evidence related

US_ACTIVE-112652515

to this “purported hacking culture” should be excluded.

Facebook’s lack of specificity is

especially vexing since Facebook, according to its CEO, does maintain a “hacking culture.” For
the reasons explained more fully below, this Court should deny Facebook’s Motion.
ARGUMENT
I.

Facebook’s Motion is Vague and Unclear.
This Court has broad discretion to deny a motion in limine that is unclear, broad, or

vague. See Abbott Labs. v. Sandoz, Inc., 743 F. Supp. 2d 762, 782 (N.D. Ill. 2010) (denying
broad motion in limine that did not seek to exclude any specific testimony or evidence); Nat’l
Jockey Club v. Ganassi, No. 04 3743, 2009 WL 2177217, at *13 (N.D. Ill. July 21, 2009)
(denying motion in limine where the purpose was unclear); Tomao v. Abbott Laboratories, Inc.,
No. 04 C 3470, 2007 WL 141909, at *6 (N.D. Ill. Jan. 16, 2007) (denying motion in limine to bar
evidence that Plaintiff was allegedly treated unfairly at Abbott as vague and unclear); United
States v. Messino, 873 F.Supp. 1177, 1188 (N.D. Ill. 1995) (“[D]efendant’s motion is too vague
to warrant a ruling that all incidents fitting into defendant’s description should be excluded.”).
Here, Facebook never explains what specific testimony or evidence or what specific
conduct that it seeks to exclude at trial. Instead, Facebook simply states, in the most general
sense imaginable, that Timelines should be barred from offering any evidence related to
Facebook’s or Mr. Zuckerberg’s respect (or lack of respect) for the rights of others. (See Mtn. p.
3.) At trial, Timelines intends to argue that Facebook does not respect the rights others—i.e.,
Timelines’ trademark rights. But given the vague and broad language in Facebook’s Motion,
Timelines would even be prevented from arguing this.
Facebook’s reference to a “purported hacker culture” is slightly more specific, but still,
too vague and broad for Timelines to determine which evidence falls under this category. Again,

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Facebook never mentions any specific statements or references that it wants to exclude. This is
especially problematic since Mr. Zuckerberg has touted, in Facebook’s S-1 filing,1 that Timeline
“came out of a Hackathon.” (See Facebook, Inc., Registration Statement (Form S-1) (February 1,
2012), p. 69, attached hereto as Exhibit A.) Given the vague language of Facebook’s Motion,
Timelines would be prevented from effectively cross-examining a witness on the issue of how
and when Timeline was developed.
In any event, evidence related to Mr. Zuckerberg’s comments regarding a “hacking
culture” is admissible and is not, as Facebook argues, improper character evidence. (See Mtn. p.
3.) Here, Timelines would not be using this evidence to prove “propensity” or “conformity
therewith.” Instead, Mr. Zuckerberg’s statements and other evidence of a “hacking culture”
constitute a party admission under Fed. R. Evid. 801(d)(2). There is ample evidence that
demonstrates that Facebook, not only maintains a “hacker culture,” but that Facebook is actually
quite proud of it. Facebook, for instance, holds an annual hacker competition in which it invites
hackers from around the world to solve hacking problems. On top of that, Mr. Zuckerberg has
explained that Facebook “cultivated a unique culture . . . that we call the Hacker Way.”
(Facebook, Inc., Registration Statement (Form S-1) (February 1, 2012), p. 69.) Here, one of the
world’s most recognized CEOs is directly describing his company’s corporate culture. This is
indeed circumstantial evidence and probative of the issue of whether Facebook acted in good
faith or intentionally infringed Timelines’ trademark.

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The Court can take judicial notice of Facebook’s S-1 filing. See George v. Kraft Foods Global, Inc.,
674 F. Supp. 2d 1031, 1044 (N.D. Ill. 2009) (“[T]he court may consider evidence of which it can take
judicial notice, and that includes SEC filings.”) (citations omitted).

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CONCLUSION
In summary, Facebook has not sufficiently explained or identified the evidence that it
seeks to exclude at trial. Because it has not done so and because some of the evidence that
Facebook has vaguely referenced is relevant and admissible, Timelines cannot determine which
evidence is or is not the subject of Facebook’s Motion. For the reasons stated above, Timelines,
Inc. requests that the Court deny Facebook’s Motion In Limine No. 7: To Exclude Evidence,
Argument, and Testimony regarding allegations of Facebook’s general disrespect for the rights
of others.
Dated: April 15, 2013

Respectfully submitted,
TIMELINES, INC.,
Plaintiff/Counter-Defendant
By: /s/ Douglas A. Albritton______
James T. Hultquist (SBN 6204320)
Douglas A. Albritton (SBN 6228734)
Michael L. DeMarino (SBN 6298337)
Bruce R. Van Baren (SBN 6310375)
REED SMITH LLP
10 South Wacker Drive
Chicago, IL 60606-7507
312-207-1000
Counsel for TIMELINES, INC.

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CERTIFICATE OF SERVICE
I, the undersigned attorney, certify that I electronically filed foregoing document.
Pursuant to Rule 5(b)(3) of the Federal Rules of Civil Procedure and Local Rule 5.9, I have
thereby electronically served all Filing Users.
DATED: April 15, 2013

Respectfully submitted,
TIMELINES, INC.,
Plaintiff/Counter-Defendant

By: /s/ Douglas A. Albritton
James T. Hultquist (SBN 6204320)
Douglas A. Albritton (SBN 6228734)
Michael L. DeMarino (SBN 6298337)
Bruce R. Van Baren (SBN 6310375)
REED SMITH LLP
10 South Wacker Drive
Chicago, IL 60606-7507
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff/Counter-Defendant
Timelines, Inc.

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