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

Filing 150

DECLARATION re #149 Assented to MOTION for Leave to File The Facebook Defendants' Memorandum In Reply to Plaintiffs' Opposition [Dkt 137] to Defendants' Motion to Compel Plaintiffs to Image and Search Their Memory Devices for Source Code, and To Comply wiAssented to MOTION for Leave to File The Facebook Defendants' Memorandum In Reply to Plaintiffs' Opposition [Dkt 137] to Defendants' Motion to Compel Plaintiffs to Image and Search Their Memory Devices for Source Code, and To Comply wi by Dustin Moskovitz, Andrew McCollum, Christopher Hughes, Thefacebook LLC, Facebook, Inc., Mark Zuckerberg. (Attachments: #1 Exhibit 26#2 Exhibit 27#3 Exhibit 28#4 Exhibit 29#5 Exhibit 30#6 Exhibit 31#7 Exhibit 32#8 Exhibit 33#9 Exhibit 34#10 Exhibit 35#11 Exhibit 36)(Sutton, Theresa) Additional attachment(s) added on 11/20/2007 (Nici, Richard).

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

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EXHIBIT 36

Dockets.Justia.com

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10/5/2007 CAL - iMarc (30(b)6), Tufts, David

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ---------------------------

FACEBOOK, INC., and MARK ZUCKERBERG, Plaintiffs Docket No. 5:07-CV-01389

CONNECTU, INC. (formerly known as CONNECTU, LLC), et al., Defendants ----------------------------VIDEOTAPED 30(b)(6) DEPOSITION OF DAVID TUFTS In Re: IMARC LLC Friday, October 5, 2007, 9:20 a.m. Proskauer Rose LLP One International Place Boston, Massachusetts 02110

-------Reporter:

ALAN H. BROCK, RDR, CRR-------

FARMER ARSENAULT BROCK LLC, for: LiveNote World Service, 221 Main Street, Suite 1250 San Francisco, California 94105 Phone: [phone] Fax: [phone]

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APPEARANCES: For Plaintiffs Neel Chatterjee, Esq. Theresa A. Sutton, Esq. Orrick, Herrington, & Sutcliffe, LLP 1000 Marsh Road Menlo Park, California 94025 650.614.7307 Fax: [phone] [e-mail] [e-mail]

For Defendants Christopher S. Schultz, Esq. Finnegan Henderson Farabow Garrett & Dunner LLP 55 Cambridge Parkway Cambridge, Massachusetts 02142 617.452.1600 Fax: [phone] [e-mail]

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For ConnectU in Massachusetts litigation Meredith H. Schoenfeld, Esq. Finnegan Henderson Farabow Garrett & Dunner LLP 901 New York Avenue, N.W. Washington, D.C. 202.408.4000 20001

fax: [phone]

[e-mail]

For Eduardo Saverin in Massachusetts litigation Daniel K. Hampton, Esq. Holland & Knight LLP 10 St. James Avenue, 11th Floor Boston, Massachusetts 617.523.2700 02116

fax: [phone]

[e-mail]

For iMarc LLC and the witness Stephen Y. Chow, Esq. Burns & Levinson LLP 125 Summer Street Boston, Massachusetts 617.345.3000 02110

fax: [phone]

[e-mail]

ALSO:

Rosa Fox-Ogg, Jared Drewniak, Videographers

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A. Q. A. Q. A.

No. It's G-u-c-w-a. I don't know. What about John Taves, T-a-v-e-s? Yes, I believe that he was sort of the new He was technically in charge of

webmaster, maybe.

the site after we -- he took over after we were done. Q. Have you ever had conversations with

Mr. Taves? A. Q. Yep. And when do you remember having your first

conversation with him? A. I'm not sure of the exact -- maybe late When we were -- we -- iMarc

2004, or summer 2004.

moved ConnectU off of our servers, onto their own server, he seemed to be the one who was going to take over, technically take over. So there was a

couple of conference calls, talking about where files were, where stuff was. Q. servers? A. We just weren't happy with stuff they were Why was ConnectU being taken off of your

asking us to do, and we just weren't happy with our relationship with them.

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Q. A.

Describe what you mean by that. They asked us to do a couple of things that

we deemed unethical, and they actually seemed to do something -- seemed to send out emails that we saw, and we didn't want that happening on a server that we managed. Q. A. Anything else? Just in general we just weren't happy

working with them any more. Q. Other than the email issue, when you say

you generally weren't happy, what was prompting those feelings? A. I think I touched on in that personal rant,

where they were just telling us to "Do this, add this, add this," and that's not really how we work and like to work. We were growing and had enough

other clients that we just really didn't want to work that way with them. Compound that with a

couple of unethical things that they seemed to be doing, we just didn't want any part of managing their server or working with them any more. Q. Were you concerned at all for iMarc's

liability associated with some of those activities? A. Q. Oh, yeah, sure, yep. Describe what you mean by that.

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A.

If it's a server that we manage that might

have other clients on it and someone sends out mass emails from it and the server gets blacklisted -which would mean that it's known to send spam, so email clients won't accept mail from that -- if they're sending spam, it gets the whole server blacklisted, and we have other clients that suddenly their email stops working. deal with that. Q. by that? A. Sending out email without someone signing So we didn't want to

That's not what we do. What do you mean

You used the term "spam."

up for it or requesting it. Q. Did you ever tell the Winklevoss brothers

or Divya Narendra that you didn't -- that you found these emails unethical? A. Q. Yes. Tell me when you first discussed that issue

with any of them. A. It's in one of the emails. It's referenced

in the bullet list in the back of the thing, where they sent out a number of emails, 6:00 a.m. by a.m. we saw, what are they doing, and we disabled the ability to do that and talked with them about it.

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Q.

I'll ask a little bit more about that a

little bit later today. I want to go back to John Taves. So

after migrating the ConnectU website from the iMarc servers to John Taves -Does he have a business? A. I think originally -- so iMarc hosted a So we buy one

number of websites on shared servers.

single piece of hardware and can fit, you know, 40 to 50 websites on it. Step No. 1, when we saw that,

you know -- when we started to question their ethics, we told them, "You guys get your own server. You sign up for it, and we'll help you move stuff there." I don't know if John Taves had anything to

do with that, if he actually owned the server or whatnot. server. So it's not saying it's John Taves' It's a server that ConnectU set up. They

gave us the log-in information to move everything to. So I think that was before there was any talk

of John Taves. Q. And so what was the first circumstance you

remember having an interaction with John Taves? A. I think he wanted to add a feature to the

website, and he was obviously taking over the webmastering stuff. We were not as responsive with

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ConnectU.

We were pushing them to schedule work.

And I think that they contacted John to actually implement stuff, maybe. We ended up talking with Here's the

John about, "Here's where the server is. log-in.

Here's what's going on" -- just an overview I'm not sure what date it was.

of what's happening.

I'm guessing 2004, summer to winter of 2004. Q. Other than those discussions, did you have

any further discussions with John Taves? A. Q. Off the top of my head, no. Are you familiar with the company Pacific

Northwest Software? A. I think that that is his company, or a

company he works for. Q. Other than the discussions you've described

with John Taves, do you recall any other discussions with anyone from Pacific Northwest Software? A. Well, yeah, I don't -- there was -- he

seemed to have this team of people that he was working with, and I'm not sure if they worked at Pacific Northwest Software. We had no official

dealings with a company called Pacific Northwest Software, but we had dealings -- John Taves and other people seemed to be starting to take over work on the site. So I'm not sure if they worked for

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(Exhibit 75 marked for identification.) After you're done looking at it, let me

I'm done. Do you recognize what's been marked as

Exhibit 75? A. Q. A. Yes. And what is that? This is an email from myself with a

previous thread between me, Nils Menten, Cameron Winklevoss, and Nick Grant. Q. And in the middle of this email is the

remark, "I deleted all ConnectU email accounts from our servers." Was that from a statement you made or

someone made to you? A. Q. A. I believe that was something I made. And what did you mean when you wrote that? Well, so, Cameron had sent me an email

saying -- so this is a week after this other one. Basically the other one says, "We're turning off the Web server. Do you want to leave email and DNS on?"

And Cameron says, "I'll let you know when we decide to change email or DNS." So I'm guessing a week,

week and a half later he decided to turn those off. So if I don't actually remove the DNS

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and email accounts from my own server, when I send email to anything at ConnectU, it will go to my server, it will bypass the real route to the new one. So the only way to avoid having a lame DNS or

lame email record, you need to completely remove those. So now when I type in "ConnectU," it goes to

the real DNS and finds its way to the real address, instead of stopping at my own server. Q. So what exactly did you delete when you

said you deleted all ConnectU email accounts? A. Just the pointer to the account. Like you

said, it's a delivery system.

So it was -- at this It would only be

point it was not doing anything.

basically messing up or intercepting my iMarc email to ConnectU. So removing that sort of like pointer,

as you called it, a delivery method, it finds its way to the real one. Q. And the same thing with DNS.

Earlier today -- I'm going to move now to

the topics of data that may have been obtained from the Facebook website and the sending of email messages to people based upon information obtained from Facebook. You mentioned earlier today that there were several or a number -- I don't remember the exact word that you used -- of unethical actions

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that you felt were taken by ConnectU. please list what those actions were. A.

Could you

The two primary ones are what's listed in Those are something about like

this document.

screen-scraping Facebook, asking us if we would do that, and something about sending out a whole bunch of unsolicited emails. Q. A. Anything else? Okay, sorry. And right after

So June and July of 2004.

that is when we took their Web hosting off of our Web server. They set it up on their own server.

And then in that other email we were suggesting, "Instead of you managing on your own server, move to Wayne" whatever. But yeah, that is what, June 11 and July 6, those two instances are what promoted us not wanting to host their website or really do anything. Q. Is there anything else that you recall,

other than those two instances? A. Q. No. Are you aware of whether any additional --

after the website was moved to another hosting provider, are you aware of whether there was any further efforts to obtain email addresses from Facebook?

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A.

I don't know.

At that point we kind of I didn't know, nor did I

washed our hands of it. care. Q.

And are you aware of whether after the

hosting ended whether any further sending of unsolicited emails occurred? A. I don't know. MR. CHATTERJEE: Exhibit 76. (Exhibit 76 marked for identification.) Q. know. A. Q. Uh-huh. Yep. After you're done looking at this, let me Let's mark this as

Do you know someone named Marc M. Pierrat,

P-i-e-r-r-a-t? A. Q. A. Yes. Who is that? He's the person we discussed at the He was the salesperson

beginning of this meeting. for iMarc at the time. Q.

Are you familiar with any discussions

between anyone at iMarc and any of the ConnectU founders about creating something called a parser? A. Q. No. And do you have any reason to believe that

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