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

Filing 292

DECLARATION re #291 MOTION For Limited Relief From Stay and to Enjoin Individual Plaintiffs and Their Counsel by Facebook, Inc.. (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 - Notice of Manual Filing, #9 Exhibit 9 - Notice of Manual Filing, #10 Exhibit 10 - Notice of Manual Filing, #11 Exhibit 11, #12 Exhibit 12 - Notice of Manual Filing, #13 Exhibit 13 - Notice of Manual Filing, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21 - Notice of Manual Filing)(Cooper, Monte)

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Connectu, Inc. v. Facebook, Inc. et al Doc. 292 Att. 7 EXHIBIT 7 Dockets.Justia.com 1 1 2 3 4 5 6 7 TRANSCRIPT OF MOTION HEARING 8 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ------------------------------x CONNECTU, INC. : DOCKET NUMBER CA0710593 PLAINTIFF : versus : UNITED STATES COURTHOUSE : FACEBOOK, INC., ET AL DEFENDANTS : BOSTON, MASSACHUSETTS ------------------------------x JUNE 2, 2008 2:30 p.m. UNSEALED HEARING ONLY 9 BEFORE: 10 11 APPEARANCES: 12 ATTORNEYS FOR THE PLAINTIFF: 13 FINNEGAN HENDERSON FARABOW GARRETT & DUNNER LLP 14 BY: 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS REPORTED USING MACHINE STENOGRAPHY. TRANSCRIPT PRODUCED EMPLOYING COMPUTER-AIDED TECHNOLOGY. DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER OFFICIAL COURT REPORTER DIANE M. MOLAS, RPR, DE CSR, AND NJ CCR OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT - DISTRICT OF MASSACHUSETTS ONE COURTHOUSE WAY THIRD FLOOR - SUITE 3200 BOSTON, MA 02210 TELEPHONE: (267) 977-2909 E-MAIL: Dmolas1@aol.com JOHN F. HORNICK, ESQUIRE 901 NEW YORK AVENUE, NW WASHINGTON, DC 20001-4413 TELEPHONE: 202-408-4076 E-MAIL: john.hornick@finnegan.com FAX: 202-4080-4400 THE HONORABLE DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE 2 1 2 3 4 5 6 BY: 7 8 9 10 BY: 11 12 13 14 15 16 17 AND 18 PRO-HAC-VICE-PENDING ATTORNEY FOR THE PLAINTIFF: 19 BOIES, SCHILLER & FLEXNER LLP 20 BY: 21 22 23 24 25 DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER D. MICHAEL UNDERHILL, ESQUIRE, PRO HAC VICE PENDING 5301 WISCONSIN AVENUE, N.W. WASHINGTON, DC 20015 TELEPHONE: 202-237-2727 E-MAIL: munderhill@bsfllp.com FAX: 202-237-6131 BY: DANIEL P. TIGHE, ESQUIRE 176 FEDERAL STREET BOSTON, MA 02110-2214 TELEPHONE: 617-542-9900393 E-MAIL: dtighe@gtmllp.com FAX: 617-542-0900 MEREDITH H. SCHOENFELD, ESQUIRE 901 NEW YORK AVENUE, NW WASHINGTON, DC 20001-4413 TELEPHONE: 202-408-4393 FAX: 202-4080-4400 SCOTT R. MOSKO, ESQUIRE 3300 HILLVIEW AVENUE PALO ALTO, CA 94304-1203 TELEPHONE: 650-849-6600 E-MAIL: scott.mosko@finnegan.com FAX: 650-849-6666 BY: APPEARANCES (CONTINUED): AND TOM JENKINS, ESQUIRE 901 NEW YORK AVENUE, NW WASHINGTON, DC 20001-4413 TELEPHONE: 202-408-4000 FAX: 202-4080-4400 3 1 2 3 4 5 6 7 8 9 10 11 AND 12 PROSKAUER ROSE LLP 13 BY: 14 15 16 17 18 19 20 21 22 23 24 25 DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER BY: STEVEN M. BAUER, ESQUIRE ONE INTERNATIONAL PLACE BOSTON, MA 02110-2600 TELEPHONE: 617-526-9700 E-MAIL: sbauer@proskauer.com FAX: 617-526-9899 AND JEREMY P. OCZEK, ESQUIRE ONE INTERNATIONAL PLACE BOSTON, MA 02110-2600 TELEPHONE: 617-526-9651 E-MAIL: joczek@proskauer.com FAX: 617-526-9899 BY: THERESA A. SUTTON, ESQUIRE 1000 MARSH ROAD MENLO PARK, CA 94025-1015 TELEPHONE: 650-614-7356 E-MAIL: tsutton@orrick.com FAX: 650-614-7401 APPEARANCES (CONTINUED): ATTORNEYS FOR THE ALL DEFENDANTS, EXCEPT EDUARDO SAVERIN: ORRICK, HERRINGTON & SUTCLIFFE LLP BY: I. NEEL CHATTERJEE, ESQUIRE 1000 MARSH ROAD MENLO PARK, CA 94025-1015 TELEPHONE: 650-614-7356 E-MAIL: nchatterjee@orrick.com FAX: 650-614-7401 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER BY: ATTORNEYS FOR THE WITNESS, JEFFREY PARMET: GESMER UPDEGROVE LLP BY: LEE T. GESMER, ESQUIRE AND JOSEPH LAFERRERA 40 BROAD STREET BOSTON, MA 02109 TELEPHONE: 617-350-6800 E-MAIL: lee.gesmer@gesmer.com FAX: 617-350-6878 AND CHRISTOPHER SHEEHAN, ESQUIRE 40 BROAD STREET BOSTON, MA 02109 TELEPHONE: 617-350-6800 FAX: 617-350-6878 HELLER EHRMAN LLP BY: ROBERT B. HAWK, ESQUIRE 275 MIDDLEFIELD ROAD MENLO PARK, CA 940252116 TELEPHONE: 650-324-7165 E-MAIL: robert.hawk@hellerehrman.com FAX: 650-324-6016 APPEARANCES (CONTINUED): ATTORNEYS FOR THE DEFENDANT, EDUARDO SAVERIN: HOLLAND & KNIGHT LLP BY: DANIEL K. HAMPTON, ESQUIRE 10 ST. JAMES AVENUE ELEVENTH FLOOR BOSTON, MA 02116 TELEPHONE: 617-573-5886 E-MAIL: dan.hampton@hklaw.com FAX: 617-523-6850 AND 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 PROCEEDINGS 15 16 17 18 19 20 21 22 23 24 25 THE DEPUTY CLERK: All rise. OFFICIAL COURT REPORTER: DIANE M. MOLAS, RPR, DE CSR, and NJ CCR OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT - DISTRICT OF MASSACHUSETTS ONE COURTHOUSE WAY THIRD FLOOR - SUITE 3200 BOSTON, MA 02210 TELEPHONE: (267) 977-2909 E-MAIL: Dmolas1@aol.com This Honorable Court is now in session. You may be seated. Calling the case, Civil Action 07-10593, ConnectU, Inc. versus Facebook, Inc., et al. THE COURT: Well, at the outset, I do have a motion to move this case in camera. My general view is, unless there is some showing of specific necessity beyond the generalized discussion, then, I won't do that. DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER UNSEALED HEARING 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 If the party has a particular issue that believes we're touching on a particular issue, apart from the general topic, then, you can make a motion at that time, and I'll see whether or not it justifies going into, you know, some sort of in camera session, but I don't find, on its face, that, at least, all of the discussion that we have today should be dealt with in camera. Now, I guess I just want to be sure I understand fully, Mr. Hornick. At the time of the settlement agreement, or, at least, the term sheet -- we'll call it the term sheet -- was executed, was ConnectU aware that there was some sort of a dispute concerning the products of the Parmet inquiries? MR. HORNICK: Your Honor, at the time that the term sheet was signed, ConnectU was aware that Mr. Parmet was in some kind of dispute with the Facebook attorneys. The -- the counsel for ConnectU asked Facebook, on a couple of occasions, to tell what the subject of that dispute was, and they wouldn't tell us, so all we knew was that there was a dispute. THE COURT: Okay; and, then, aware that there was a dispute, as to which Facebook would not disclose the substance. Nevertheless, the term sheet was entered into? MR. HORNICK: I'm not sure the two were necessarily DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER UNSEALED HEARING 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 connected, but, yes, the term sheet was signed, and there was knowledge that there was some kind of a dispute with Mr. Parmet. THE COURT: Okay; and, in that connection, there were a number of unresolved Discovery matters at that point? MR. HORNICK: Well, it was known that -- it was known by ConnectU that Facebook had documents that they had not yet produced, but the importance of those document, we didn't know; I mean, Facebook hadn't said we have -- have any material documents that we're going to produce. say. THE COURT: Were they under an obligation to tell They didn't you how material they viewed the documents? MR. HORNICK: THE COURT: I'm sorry? Were they under an obligation to tell you how material they viewed the documents? MR. HORNICK: No, I would say that they were not under an obligation to tell us, per se, but I believe they were under an affirmative obligation to produce the documents. THE COURT: exercise, I take it? MR. HORNICK: Well, at some point in time it was Which was suspended by that settlement suspended, Your Honor, but the defendants knew from Mr. Parmet that these documents had been identified on December 14. We said in our brief that it was no later than DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER UNSEALED HEARING 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56F? MR. HORNICK: 8 January 7; in fact, it was December 14, so they actually had five weeks before the mediation even became a possibility, during which those documents should have been produced, and, after the remediation became a possibility, there was another three weeks during which they could have produced them before mediation was actually scheduled, which was on February 11, and, then, on February 11, there was another week, or so, before the mediation actually occurred. Somewhere in there, there was a decision that parties would hold up. It's in my notes, I can provide it to you, but the point is that there was a period of, somewhere in the neighborhood of, eight weeks, during which the case was business as usual, and, in fact, in mid-February -- I believe it was the day after the parties scheduled the mediation -the day after the parties scheduled the mediation, Facebook filed a Motion for Summary Judgment on the copyright claim, and they, therefore, even as of the day the mediation had been scheduled, believed the case was alive, and, if these documents were, in any way material to that motion, they should have been produced. THE COURT: And you filed a renewed motion under There was a renewed motion under 56F, Your Honor, but it related to the Summary Judgment motion on the contract, which was filed in August of last year. DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER UNSEALED HEARING 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (All parties returned to the courtroom.) THE DEPUTY CLERK: All rise. 91 This Honorable Court is back in session. You may be seated. THE COURT: Well, having completed in camera hearing with Mr. Parmet and his counsel and counsel for Facebook, I think I should report what I've chosen to do here, which I indicated ahead of time. At the outset, however, let me just say that it seems to me that it is appropriate to keep the transcript of the in camera proceeding in camera, because, necessarily, there was a discussion, to some degree, of the substance of the -- at least, Mr. Parmet's view of the substance of -- the documents that he believes are at issue here. By keeping it in camera, I do not mean to suggest that it's not available to Judge Ware, if he chooses to review it; otherwise, the transcript of the proceedings is open, as is customary in This Court. Mr. Parmet has passed up to me, now, incorporated in this single, three-ring binder, a collection of documents that are at issue in the dispute between parties and have been the focus of the dispute between the parties, and I intend to have them docketed as a sealed exhibit. (A sealed exhibit will be docketed.) THE COURT: I will keep them in the safe, in the DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER UNSEALED HEARING 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 92 control of the court, pending resolution of other matters by the parties, and, more particularly, by Judge Ware. During the course of the proceeding, I found that Mr. Parmet did not engage in any knowing violation of the provisions of the order for Discovery of computer-memory devices that was entered by Judge Collings on September 13, 2007. I did, however, indicate -- and I'll make explicit -- that my view is even to have discussed the existence of documents that he reviewed that did not involve, what we call, code is a transgression of the order. The order, I think, is quite explicit on the issue of what kind of disclosure to others Mr. Parmet could make; more specifically, in Section 3, on Page 7, the order directs that Parmet and Associates may not discuss with ConnectU's counsel or with anyone else any information obtained from the Facebook hard drives, except, with respect to the produced program code, and, in the course of my discussions with Mr. Parmet, I emphasized, again, to him the view that I have, that that means he may not have any discussions, direct or indirect, with ConnectU's counsel or with anyone else -obviously, with the exception of The Court, direction from me or from Judge Ware, for example -- of any information obtained from the Facebook hard drives, except with respect to the produced program code, and I'm satisfied that Mr. Parmet is DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER UNSEALED HEARING 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fully familiar and fully prepared to comply with this provision. 93 My own role in this, I think, is to do no more than simply preserve evidence which may or may not become relevant in the decision-making process, with respect to settlement, which is now ongoing before Judge Ware in California. This seems to me the orderly way to proceed, and my expectation, as I expressed to counsel, is that, if being aware of the universe of potential disputes between the parties, Judge Ware, nevertheless, chooses to enforce the settlement term agreement, that will be the end of the two cases pending before me. Whether there's follow-on litigation or some other initiatives that are undertaken is far too speculative for me to address at this point. If he finds that the settlement agreement expressed in the settlement term sheet is not enforceable, then, we will re-ignite this case -- or, these cases, I should say -- and continue the litigation to some other resolution, but the short of it is that the core of the case is, I think, and the core of the question of whether or not the case is continued is before Judge Ware, and, until he's made those determinations, I do nothing, other than to ensure that there is available such evidence as may become relevant at some point in the process. DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER UNSEALED HEARING 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 states. Is there anything further from counsel? MR. HORNICK: Just one question, Your Honor. 94 I do have occasion to deal with Mr. Parmet -THE COURT: Mm-hmm. -- in other cases, and, also, there MR. HORNICK: may even be situations in this case, and I just want to go on the record, that there are no surprises, and I understand that the order is limited to anything under protocol. THE COURT: It is. Yes. MR. HORNICK: THE COURT: I mean, the order is as the order With respect to his exposure to any materials in this case through the hard drives, he is bound not to discuss it with you, except as it is code. Now, I say one other thing, based on all that I know, which in this and in other ways is sometimes less than I think I know, it seems to me that counsel have -- and Mr. Parmet have -- proceeded properly. I said so in open court, with respect to Mr. Hornick bringing it to my attention, and I said so in in camera proceedings with Mr. Parmet. There are sometimes these very difficult issues that the parties have to struggle with, and I made the analogy, I think in open court, but, also with Mr. Parmet, DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER UNSEALED HEARING 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER recess. Thank you. MR. HORNICK: Thank you, Your Honor. All rise. that the priest or the attorney who has disclosed to him 95 information which he is obligated not to disclose to others, that frequently creates tension. I'm not suggesting that's what's involved here, because I don't know, not having reviewed it, it rises or falls to that level, but, when there are these competing considerations, it creates tensions for the parties. They did, I think, what is proper to do in this setting, and I hope I've clarified; at least, provisionally, while we await the resolution from Judge Ware, what their respective responsibilities are. If there's nothing further, then, we'll be in THE DEPUTY CLERK: (The proceedings were concluded.) - (Court was adjourned.) - 96 1 2 PAGE 3 UNSEALED HEARING 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER UNSEALED HEARING 91 SEALED HEARING Jeffrey Parmet By The Court By Mr. Chatterjee By The Court 71 72 78 84 5 DIRECT CROSS RED INDEX 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIANE M. MOLAS, RPR, DE CSR, and NJ CCR USDC - MAD OFFICIAL COURT REPORTER (A sealed exhibit) EXHIBITS DOCKETED 91 INDEX (CONTINUED) CERTIFICATION I, DIANE M. MOLAS, a Registered Professional Reporter (RPR), a Certified Shorthand Reporter (CSR) in the State of Delaware, a Certified Court Reporter (CCR) in the State of New Jersey, and a Notary Public in the Commonwealth of Pennsylvania, do hereby certify that the foregoing is a true and accurate transcript of the proceedings reported by me, on June 2, 2008, and that I am neither counsel, nor kin, to any party or participant in said action, nor am I interested in the outcome thereof. WITNESS my hand, this Sixth Day of June, 2008. ________________________________________ Diane M. Molas, RPR, DE CSR, and NJ CCR DE Certification Number 208-RPR NJ Certification Number 30XI00228400 - (The foregoing certification of this transcript does not apply to any reproduction of the same by any means, unless under the DIRECT CONTROL AND/OR SUPERVISION of the Certifying Court Reporter herself. THE COURT REPORTER'S CERTIFICATION NEVER APPEARS AS A PHOTOCOPIED SIGNATURE.) -

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