Connectu, Inc. v. Facebook, Inc. et al

Filing 135

DECLARATION re #132 MOTION to Compel Plaintiffs to Image and Search Their Memory Devices For Source Code, And To Comply with Requests for Production Nos. 102, 67-68 and 117 by Dustin Moskovitz, Andrew McCollum, Thefacebook LLC, Facebook, Inc., Mark Zuckerberg. (Attachments: #1 Exhibit 1A#2 Exhibit 1B#3 Exhibit 2#4 Exhibit 3, 4, 20, 21, and 22 (UNDER SEAL)#5 Exhibit 5#6 Exhibit 6#7 Exhibit 7#8 Exhibit 8#9 Exhibit 9#10 Exhibit 10#11 Exhibit 11#12 Exhibit 12#13 Exhibit 13#14 Exhibit 14#15 Exhibit 15#16 Exhibit 16#17 Exhibit 17#18 Exhibit 18A#19 Exhibit 18B#20 Exhibit 18C#21 Exhibit 19A#22 Exhibit 19B#23 Exhibit 23#24 Exhibit 24#25 Exhibit 25)(Sutton, Theresa) Additional attachment(s) added on 10/26/2007 (Nici, Richard).

Connectu, Inc. v. Facebook, Inc. et al

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EXHIBIT 25

Dockets.Justia.com

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS . . . V. . . FACEBOOK, INC., et al . Defendants . ............. CONNECTU, INC. Plaintiff CIVIL ACTION NO. 07-10593-DPW BOSTON, MASSACHUSETTS SEPTEMBER 13, 2007

TRANSCRIPT OF MOTION HEARING BEFORE THE HONORABLE ROBERT B. COLLINGS UNITED STATES MAGISTRATE JUDGE APPEARANCES: For the plaintiffs: John F. Hornick, Esquire Meredith H. Schoenfeld, Esquire Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 901 New York Avenue, NW Washington, DC 20001 202-408-4000 [e-mail] Daniel P. Tighe, Esquire Griesinger, Tighe & Maffei, LLP 176 Federal Street Boston, MA 02110 617-542-9900 [e-mail] For the defendants: I. Neel Chatterjee, Esquire Orrick, Herrington & Sutcliffe, LLP 1000 Marsh Road Menlo Park, CA 94025 650-614-7400 [e-mail]

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Jeremy P. Oczek, Esquire Steven M. Bauer, Esquire Proskauer Rose, LLP One International Place 22nd Floor Boston, MA 02110 617-526-9700 [e-mail] For Edward Saverin: Nathan E. Shafroth, Esquire Heller Ehrman, LLP 333 Bush Street San Francisco, CA 94101-2878 [e-mail] Daniel K. Hampton, Esquire Holland & Knight, LLP 10 St. James Avenue Boston, MA 02116 [e-mail]

Court Reporter: Proceedings recorded by digital sound recording, transcript produced by transcription service.
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we going to be able to find out if they violate some of these things if we don't, if we're not allowed to pre-specify what it is they're looking for. MR. HORNICK: THE COURT: MR. HORNICK: THE COURT: Your Honor, may I address-No. I'm not sure he's done.

Sorry. Are you done, Mr. Chatterjee? So those are fundamentally the

MR. CHATTERJEE:

I mean, just to point out kind of the key language in I can talk about them separately but

paragraph or paragraph 5.

paragraph 5, the two versions really have kind of the key areas in dispute in my mind at least. About halfway through

ConnectU's proposed paragraph five it says, "The search process may included examination of any files or file fragments which are in the form of ASCII text." that's stored on a hard drive. That's anything with a letter By letter I don't mean an

email, A, B, C, D, those types of letters, "including such files which may be found in archive files, compressed files, source code depositories or databases." So what that says is

they are allowed to look through every email that any of the defendants sent to their lawyers, every document they wrote documenting their interactions with their girlfriend, any financial information that they have, their bank accounts, any of that they're allowed to look through here. The way we wrote

it in paragraph 5 is if you look at the bottom half, we talk
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about how they specify the specific types of code.

give us the actual code itself that they're looking for and then they search for it. If they wanted to search for the

keyword Facemash for example in the Facemash program, they could pull out, they could use that as a search string criteria. But right now the way they've crafted this is it can

be a fishing expedition through our hard drives. Your Honor, I'd recommend that you read the Fennel case that I cited in our briefs. THE COURT: I'm very familiar with that. I just

think it's so ironic that you are, you're so insistent that they be restricted in their search for something that you won't even specify with respect to the earlier argument. It's very

ironic and frankly I don't think that it's a meritorious litigable position. Let me, if you want to have the last word, Mr. Hornick, you will, and then I'll take the matter under advisement. MR. HORNICK: couple of things. Your Honor, yes, I would like to say a

One is that they say that the way we have

crafted this, actually this protocol was negotiated over about a month's time between the parties and we came down to these remaining issues. THE COURT: MR. HORNICK: Right. I would like to just summarize for the

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Court the guarantees that I mentioned-THE COURT: MR. HORNICK: Sure, go ahead. --that are in this document. First I

mentioned one that's not in this document and that is that the computer program that will do the searching, that was written by our expert, will return to the expert only code. It will It

not return emails, letters to girlfriends or anything else. will return code. It's designed to return only code. But in

the document itself, I already mentioned that paragraph 1 says that the experts are found by the stipulated protective order in the protocol. THE COURT: MR. HORNICK: Right. Paragraph 1 also says that the experts

access to any privileged information will not waive privilege and that ConnectU cannot challenge privilege of these expert-THE COURT: We're not talking about privilege

MR. HORNICK:

Well, they're saying there could be So to the extent that

privilege information on these devices.

there is if our expert sees any of that, that will not waive privilege and ConnectU cannot argue that that has waived privilege. THE COURT: MR. HORNICK: Okay. That's paragraph 1. Paragraph 1 also

says that protected material, and that's a defined term, which
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is privilege material or anything else that's subject to some kind of a privilege, cannot be shared with ConnectU at any time, in any way, shape or form. Paragraph 2 says that the analysis that our expert is going to do is going to be on a non-network computer, which means that nobody else can get to it. computer. It's only on that one

Paragraph 2 also says that during the imaging

process, which takes place before the analysis, although ConnectU's counsel can be present, they can't see anything on the screen. Then we go into the protections against us ever And paragraph 3 says that

getting anything after the analysis.

the experts can disclose information to ConnectU only as the protocol permits, and then paragraph 3 also says Facebook's counsel is going to be involved in any communications between us and our expert during this analysis period. So when they

talk about policing, any time that we send a communication to our expert during this analysis period, we have to copy them. Any time that they communicate with our expert during that period, they have to involve us. Any time that they want to

talk with our expert during this analysis period, we have to do it in their presence, either in physical presence or on the telephone. And then paragraph 3 also says, the experts can

discuss with ConnectU only the what's called "Produced Program Code". Now, here's how you get Produced Program Code. Here's

how we'll get it.
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THE COURT: MR. HORNICK: THE COURT:

I'm sorry, this is paragraph 3? That was paragraph 3, that's right. All right. Let me just find it. So in

other words, Produce Program Code is the only thing from the computer that they're able to give over to you? MR. HORNICK: THE COURT: That's right. And where is Produced Program Code

MR. HORNICK: it's paragraph 3.

In paragraph 3, Your Honor.

I think

MR. CHATTERJEE:

Your Honor, before we go through the

THE COURT:

Please, I'm asking him where that is

MR. HORNICK: moment, Your Honor.

I'm having trouble finding it at the

MR. CHATTERJEE: THE COURT: MR. HORNICK:

I think it's paragraph 7.

7, okay. Yes, well, that's true. It's defined

in paragraph 7, Produce Program Code is-THE COURT: MR. HORNICK: Collected Computer---Collected Computer Code that gets After

through the process that I was about to explain.

searching the experts will include in Collected Computer
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Program Code only the code, only the relevant code database definitions in metadata. That's in paragraph 4 and 5. So in

other words, after the expert does that search he can include in Collected Program Code only the relevant code database definitions and metadata. THE COURT: MR. HORNICK: Okay. And then in paragraph 4 it also says

that he's got to be guided by his professional judgment and the restrictions of the protocol. And it also says in paragraph 4

that ConnectU won't be present during any of the search analysis and that we can't control the search process, and then in paragraph 6, and this is what's really important-THE COURT: MR. HORNICK: I see, okay. --in paragraph 6, anything that the

expert has identified as Collected Computer Code, they have to send that to the Facebook and the Facebook then looks at it and anything that they don't want us to see they object to and then he, the expert, can only produce to us the stuff that they don't object to. Now, with the stuff that they do object to

the next step is that they say to the expert we object to this stuff and here's why, and he says, well, I think it should be in Collected Computer Code. gets produced to us. If they agree, they agree, then it

If they don't agree, then the dispute is

submitted to the Court and it will not be given to us until the Court decides. So there's plenty, and there's some other
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protections here as well, but there are plenty of protections in here so that any of these letters to girlfriends and emails and anything except code will never get to ConnectU. THE COURT: MR. HORNICK: Okay. And in addition to that, Your Honor,

this code, they say, they say they want us to, you know, we could be searching in anything. email. We could be searching an

Well, one, the search will look at emails but it will But it's important that we look everywhere Two, during the meet

only return code.

because the code one, could be anywhere.

and confer in Dallas the defendants told us that Mark Zuckerberg often wrote code in text files, and text files could be like a Word document on your computer, so we have to be able to look in those files as well. And also what we're dealing

with here today, Your Honor, is attorney argument versus what the experts say. I'm telling you what our experts say. It

will restrict their search.

Defendants are just giving you

their argument but our expert is available by telephone today to discuss this if the Court wants to do that. THE COURT: No, I don't need to talk to the expert. Your Honor, frankly, this could all

MR. CHATTERJEE: be put to bed.

Today was the first I heard of this. Oh, it's going to be put to bed within

THE COURT:

the next two days, I guarantee you. MR. CHATTERJEE: No--

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THE COURT:

I'm not going to spend a lot on this. I understand, Your Honor. This is

MR. CHATTERJEE:

the first I've heard about a software program that they're going to be having doing this search as opposed to manual. That could actually resolve these other issues if we have a little bit more understanding of what that is. that frankly would resolve this protocol issue. not policing during the time of the protocol. And I think The issue is It's what

happens afterwards because after the protocol they don't have to email us with everything that these experts are saying. They can do, they can have discussions with them. There are

some restrictions in here as to what they can or cannot-THE COURT: I thought they can't turn over, according

to what Mr. Hornick said, turn anything over that they found on these computers unless they give you the chance to object? MR. CHATTERJEE: That's true, Your Honor. They

THE COURT: possibly need?

Then what other protections do you

MR. CHATTERJEE:

They only issue is that if they see

things that we don't want them talking about, we need to be able to have a vehicle to police them. THE COURT: You're going to know what they've seen

because under the order, before they show it to ConnectU they're going to show it to you and you're going to have the
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CERTIFICATION I, Maryann V. Young, court approved transcriber, certify that the foregoing is a correct transcript from the official digital sound recording of the proceedings in the above-entitled matter.

/s/ Maryann V. Young

October 9, 2007

MARYANN V. YOUNG Certified Court Transcriber [phone]