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

Filing 148

AFFIDAVIT of Monte M.F. Cooper in Support re #146 MOTION to Compel Response to Interrogatory No. 1 filed by Dustin Moskovitz, Andrew McCollum, Christopher Hughes, Thefacebook LLC, Facebook, Inc., Mark Zuckerberg. (Attachments: #1 Exhibit 1#2 Exhibit 2#3 Exhibit 3#4 Exhibit 4#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)(Cooper, Monte)

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

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Case 1:07-cv-10593-DPW

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EXHIBIT 15

Dockets.Justia.com

Case 1:07-cv-10593-DPW Hanhan, Melinda
From: Sent: To: Cc:

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Subject:

Cooper, Monte Sunday, October 14, 2007 7:21 PM '[e-mail]'; Sutton, Theresa A. Mudurian, Karen; Dalton, Amy; Chatterjee, I. Neel; Guy, Hopkins; Annette Hurst; Dan Hampton; Sbauer; Joczek; Boutin, Anne; Hanhan, Melinda; Day, Chester; Trinh, Michael; Greer, Yvonne; Stillman, Stacey; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]' Re: Response to September 6, 2007 Cooper Letter

Adam: The First Amended Complaint does not address any prior deficiency. It is a pleading, not a verified discovery response, and it is not remotely aimed at responding to the interrogatory responses. We have made our record clear what the deficiencies are over months of meet and confers and correspondence. At no time until today did ConnectU ever suggest it was relying on the First Amended Complaint to answer under oath interrogatories. As noted, this issue is completed. ConnectU has promised for four months that it would supplement, including in pleadings filed with the Court. Defendants have provided every imaginable oppotunity for ConnectU to prove its good faith. Having reneged on four months of promises, Defendants will now seek relief from the Court.

-------------------------Sent from my BlackBerry Wireless Device ----- Original Message ----From: Adam Wolfson <[e-mail]> To: Cooper, Monte; Sutton, Theresa A. Cc: Mudurian, Karen; Dalton, Amy; Chatterjee, I. Neel; Guy, Hopkins; Annette Hurst; Dan Hampton; Sbauer; Joczek; Boutin, Anne; Hanhan, Melinda; Day, Chester; Trinh, Michael; Greer, Yvonne; Stillman, Stacey; [e-mail] <[e-mail]>; [e-mail] <[e-mail]>; [e-mail] <[e-mail]>; [e-mail] <[e-mail]>; [e-mail] <[e-mail]>; Rick Werder <[e-mail]>; Peter Calamari <[e-mail]>; Renee Bea <[e-mail]>; Sarah Hartley <[e-mail]> Sent: Sun Oct 14 19:07:13 2007 Subject: RE: Response to September 6, 2007 Cooper Letter Monte, Can you please explain which alleged deficiencies in our prior Interrogatory Responses remain deficient in light of the FAC and the current state of discovery? As noted in my prior email, Neel Chatterjee's letter actually explaining the alleged deficiencies -- the only such explanation of which we are aware -- was sent before we filed our amended pleading. As such, that letter could not contemplate the facts alleged in the FAC itself. Also, I will point out that your previous correspondence on the interrogatories occurred prior to the September 13th hearing. As you will remember, the Court granted access to Defendants' hard drives as well as required Defendants to locate relevant code central to the various causes of action on previously produced CDs. Since Plaintiffs have not been able to view the hard drive images yet, and Defendants stated that they did not believe
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they were required to go the expense of providing court-ordered information, we have not received any further information which could even potentially supplement contention interrogatories. Regards, Adam Wolfson Quinn Emanuel Urquhart Oliver & Hedges, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 Direct: [phone] Main Phone: [phone] Main Fax: [phone] E-mail: [e-mail] <mailto:adamwolfson@[e-mail]> Web: www.quinnemanuel.com <http://www.quinnemanuel.com/> The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. ________________________________ From: Cooper, Monte [mailto:[e-mail]] Sent: Sunday, October 14, 2007 11:21 AM To: Adam Wolfson; Sutton, Theresa A. Cc: Mudurian, Karen; Dalton, Amy; Chatterjee, I. Neel; Guy, Hopkins; [e-mail]; [e-mail]; [e-mail]; [e-mail]; [e-mail]; Hanhan, Melinda; Day, Chester; Trinh, Michael; Greer, Yvonne; Stillman, Stacey; [e-mail]; [e-mail]; [e-mail]; [e-mail]; [e-mail]; Rick Werder; Peter Calamari; Renee Bea; Sarah Hartley Subject: Re: Response to September 6, 2007 Cooper Letter

Adam: My meet-and-confer with Margaret, and subsequent correspondence, occurred after the July 25 hearing and after the First Amended Complaint was filed. At no time was the FAC cited as overrcoming the deficiencies. Nor could it, because CU's responses are directed to information in itsp custody and control. We will proceed to file the Motion to Compel, and to take any further action necessary to call to the Court's attention not merely that the supplementation has been promised for four months, but specifically was mentioned as forthcoming in the original Joint Status Report filed with the Court in July. Monte Cooper -------------------------Sent from my BlackBerry Wireless Device ----- Original Message ----From: Adam Wolfson <[e-mail]> To: Sutton, Theresa A. Cc: Mudurian, Karen; Dalton, Amy; Chatterjee, I. Neel; Guy, Hopkins; Annette Hurst; Dan Hampton; Sbauer; Joczek; Boutin, Anne; Hanhan, Melinda; Day, Chester; Trinh, Michael; Greer, Yvonne; Stillman, Stacey; Schoenfeld, Meredith <[e-mail]>; Cooper, Monte; Hornick, John <[e-mail]>; Esquenet, Margaret <[e-mail]>; Hart, Pat <[e-mail]>; Kaufman, Daniel
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<[e-mail]>; Rick Werder <[e-mail]>; Peter Calamari <[e-mail]>; Renee Bea <[e-mail]>; Sarah Hartley <[e-mail]> Sent: Sun Oct 14 07:10:44 2007 Subject: RE: Response to September 6, 2007 Cooper Letter Theresa, I write in response to your email dated Friday, October 12, 2007. To answer your question, we did not serve and do not, at this time, plan on serving supplemental interrogatory responses. The reason for this decision is that the Interrogatories for which you requested supplementation pursuant to Monte Cooper's letter to Meredith Schoenfeld dated August 23, 2007, Nos. 1-8, 10, 11, 13 and 14, have been answered to the extent of our knowledge at this stage of discovery. Furthermore, your original assertions of deficiency were lodged before the First Amended Complaint ("FAC") was filed before this Court and you have not explained how our responses are deficient in light of the much greater detail provided in that pleading. Specifically, we never received explanation why your contention interrogatories (Nos. 1-8, 11 and 13) are either insufficiently answered in our previous Responses or in the FAC. Additionally, at several points in his original letter on this subject to Margaret Esquenet dated July 12, 2007, Neel Chatterjee requested that we state whether or not our answers to these Interrogatories were made in full. Discovery is ongoing and we cannot make such an assertion yet. To give just two examples why this is so, we have not had opportunity to view the hard drive images ordered by the Court on September 13, 2007, nor do we yet know, as referenced in our letter to Mr. Chatterjee dated October 10, 2007, if the relevant Facebook code at issue in this case even exists. As such, it would be premature to supplement our Responses as they were provided to the best of our knowledge given the status of discovery at that time, and discovery has not moved significantly forward since then. With respect to Interrogatory No. 14, we have already provided our response in full. To reiterate, Plaintiffs were unaware of any third party website embodying the combination of trade secrets identified in both the FAC and Interrogatory Responses. I hope this letter clears up any confusion. We look forward to your response regarding our October 10 letter and will see you in Boston on Wednesday. Sincerely, Adam Wolfson Quinn Emanuel Urquhart Oliver & Hedges, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 Direct: [phone] Main Phone: [phone] Main Fax: [phone] E-mail: [e-mail] <mailto:adamwolfson@[e-mail]> Web: www.quinnemanuel.com <http://www.quinnemanuel.com/> The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. ________________________________ From: Sutton, Theresa A. [mailto:[e-mail]] Sent: Friday, October 12, 2007 7:28 PM To: Schoenfeld, Meredith; Cooper, Monte; Hornick, John; Esquenet, Margaret; Hart, Pat; Kaufman, Daniel; Adam Wolfson
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Cc: Mudurian, Karen; Dalton, Amy; Chatterjee, I. Neel; Guy, Hopkins; Annette Hurst; Dan Hampton; Sbauer; Joczek; Boutin, Anne; Hanhan, Melinda; Day, Chester; Trinh, Michael; Greer, Yvonne; Stillman, Stacey Subject: RE: Response to September 6, 2007 Cooper Letter MeredithWe have not received Plaintiffs' supplemental interrogatory responses. Please let me know how they were served. Thank you. Theresa ___________________________________ O ORRICK Theresa A. Sutton Orrick, Herrington & Sutcliffe LLP Silicon Valley Office 1000 Marsh Road, Menlo Park, CA 94025 650.614.7307 (Voice) 650.614.7401 (Fax) [e-mail] www.orrick.com

________________________________ From: Schoenfeld, Meredith [mailto:[e-mail]] Sent: Tuesday, September 11, 2007 5:16 PM To: Cooper, Monte; Hornick, John; Esquenet, Margaret; Hart, Pat; Kaufman, Daniel Cc: Mudurian, Karen; Dalton, Amy; Chatterjee, I. Neel; Guy, Hopkins; Sutton, Theresa A.; Annette Hurst; Dan Hampton; Sbauer; Joczek; Sutton, Theresa A.; Boutin, Anne; Hanhan, Melinda; Day, Chester; Trinh, Michael; Greer, Yvonne Subject: RE: Response to September 6, 2007 Cooper Letter Monte: We will supplement our interrogatory responses by October 12, 2007. -Meredith ________________________________ From: Cooper, Monte [mailto:[e-mail]] Sent: Tuesday, September 11, 2007 10:39 AM To: Schoenfeld, Meredith; Hornick, John; Esquenet, Margaret; Hart, Pat; Kaufman,

Daniel

Cc: Mudurian, Karen; Dalton, Amy; Chatterjee, I. Neel; Guy, Hopkins; Sutton, Theresa A.; Annette Hurst; Dan Hampton; Sbauer; Joczek; Sutton, Theresa A.; Boutin, Anne; Hanhan, Melinda; Day, Chester; Trinh, Michael; Greer, Yvonne Subject: RE: Response to September 6, 2007 Cooper Letter Meredith: Concerning your letter of September 6, Facebook Defendants respond as follows: (1) With respect to the "supplemented interrogatories," Facebook Defendants have
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been promised responses for two months, and yet plaintiffs continue to refuse to do so. Defendants have need of the supplementation immediately because ConnectU unilaterally changed its trade secret designation, and has added new allegations, claims and defendants in its amended complaint. Moreover, the deposition of Joseph Jackson is scheduled for September 20. Accordingly, either we receive an immediate commitment to serve the longpromised supplementation by September 18, or we will move to compel. Defendants further note that they need the supplementation immediately to ensure it is adequate to address the deficiencies identified in prior correspondence, and is sufficiently responsive to the original Interrogatories. (2) With respect to the imaging and keyword searches, Facebook Defendants will move to compel under the same protocol that plaintiffs contend should be applicable to all Defendants. With respect to your offer to do keyword searches, it is unclear how you intend to use such a search mechanism. We have been told there has been no imaging and will be no imaging of all electronic devices used by ConnectU and its Founders. Indeed, your letter separately indicates that plaintiffs will not agree to such imaging. (3) Facebook Defendants can show that all Founders had access to the Harvard Connection code on the Hurricane Electric servers at all times before and after it was allegedly provided to Mark Zuckerberg. That also includes both before and after ConnectU brought suit. Moreover, the original code simply was not preserved. Accordingly, Facebook Defendants will move to compel on this issue. (4) With respect to ConnectU code, PNS confirmed it was subject to its "Subversion" control. We have never received all versions of the code in executable form to determine how and when particular Subversion versions existed and/or were added and deleted on the PNS servers. Nor, for instance, have we received the code as it was admittedly kept by Winston Williams on his own laptop computer. Indeed, he testified he could not produce such code because he has lost his laptop. Further, we have received none of the information in the database files of PNS, such as the dates particular members joined ConnectU or were invited to join ConnectU. Again, therefore, Facebook Defendants will now move to compel such missing information. (5) We have received multiple versions from ConnectU of the December 20, 2006 email from Howard Winklevoss to his sons referencing the "hedge fund that wants to fund the rest of [the litigation] on a contingent basis." One such example is Bates-Numbered CUCA02996 - CUCA02998. Again, the information concerning investment in ConnectU, including funding by the hedge fund, is relevant to several issues such as damages, and is not privileged. Facebook Defendants therefore will move to compel the information about the referenced hedge fund and any other investments by third parties in the litigation and/or ConnectU. Thank you, Monte Cooper ________________________________ From: Schoenfeld, Meredith [mailto:[e-mail]] Sent: Monday, September 10, 2007 1:30 PM To: Cooper, Monte; Hornick, John; Esquenet, Margaret; Hart, Pat; Kaufman, Daniel Cc: Mudurian, Karen; Dalton, Amy; Chatterjee, I. Neel; Guy, Hopkins; Sutton, Theresa A.; Annette Hurst; Dan Hampton; Sbauer; Joczek; Sutton, Theresa A.; Boutin, Anne; Hanhan, Melinda; Day, Chester; Trinh, Michael Subject: Response to September 6, 2007 Cooper Letter Please see attached. -Meredith

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