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

Filing 345

Opposition re #338 MOTION Motion For Access To Pleadings And Discovery Files filed by Facebook, Inc., Christopher Hughes, Andrew McCollum, Dustin Moskovitz, Mark Zuckerberg. (Attachments: #1 Affidavit Declaration of Monte Cooper, #2 Exhibit Ex. 1 to Cooper Decl., #3 Exhibit Ex. 2 to Cooper Decl., #4 Exhibit Ex. 3 to Cooper Decl., #5 Exhibit Ex. 4 to Cooper Decl., #6 Exhibit Ex. 5 to Cooper Decl., #7 Exhibit Ex. 6 to Cooper Decl., #8 Exhibit Ex. 7 to Cooper Decl., #9 Exhibit Ex. 8 to Cooper Decl., #10 Exhibit Ex. 9 to Cooper Decl., #11 Exhibit SEALED Ex. 10 to Cooper Decl., #12 Exhibit Ex. 11 to Cooper Decl., #13 Exhibit Ex. 12 to Cooper Decl., #14 Exhibit Ex. 13 to Cooper Decl.)(Chatterjee, I.) (Attachment 11 replaced on 7/19/2011) (York, Steve).

EXHIBIT 1

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No. 04-11923-DPW
CONNECTU LLC
Plaintiff
v.

MARK ZUCKERBERG, et al
Defendants

TRANSCRIPT OF MOTION HEARING
BEFORE THE HONORABLE ROBERT B. COLLINGS
UNITED STATES MAGISTRATE JUDGE
HELD ON NOVEMBER 18, 2005
APPEARANCES:
For the plaintiff:
John F. Hornick, Esquire, Jonathan M.
Gelchinsky, Esquire, Margaret A. Esquenet, Esquire, Troy Grabow,
Esquire, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP,
901 New York Avenue, N.W., Washington, DC 20001, (202) 4084000.
For the defendants: Daniel K. Hampton, Esquire, Holland &
Knight, LLP, 10 St. James Avenue, Boston, MA 02116, (617) 5236850 and I. Need Chatterjee, Esquire, Robert D. Nagel, Esquire
Orrick, Herrington & Sutcliffe, LLP, 4 Park Plaza, Suite 1600,
Irvine, CA 02614-2558, [phone].
Jeremy P. Oczek, Esquire,
Place, Boston, MA 02110,

Proskauer Rose, LLP, One International
[phone].

For defendant Eduardo Saverin:
Daniel Hampton, Esquire, Holland
& Knight, LLP, 10 St. James Avenue, Boston, MA
02116, (617)
523-2700 and Robert Hawk, Esquire, Heller Ehrman, LLP, 275
Middlefield Road, Menlo Park, CA 94025, [phone].
Court Reporter:

Proceedings recorded by digital sound recording, transcript
produced by transcription service.

MARYANN V.

YOUNG

Certified Court Transcriber
240 Chestnut Street
Wrentham, Massachusetts 02093
[phone]

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the server here at the court that runs your whole network.
It's just a hard drive in a different

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That's what a server is.

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place that a lot of people are linked into.

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THE COURT:

Now--

But is it, to, to get on the server's

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hard drive, does it have to be backed by an individual off of

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an individual computer?

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MR. HORNICK:

You might, you might store something on

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that server, but if we wanted to take an image of it, we would

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then go to that server, take an image of that.

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Now, what I'm

saying about what happens-THE COURT:

No, my question is, why, when you're

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saying that things from an individual computer's hard drive get

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on the hard drive of the server when someone backs them up, so

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isn't the server then, you know, isn't the best evidence so to

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speak the individual hard drive of the computer?

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MR. HORNICK:

Well, it depends on what we're looking
If we're looking for the Harvard

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for here, Your Honor.

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connection code that Mr. Zuckerberg worked on, that's probably

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going to be in the individual's computer.

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going to be in the server that ran the website.

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looking for that face match code or the course match code or

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that online journal, it's probably going to be on the

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individual computers.

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code up to the time of launch, it probably was on

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Mr. Zuckerberg's computer.

It's probably not
If we're

But if we're looking for the FaceBook

On the day of launch, it was on

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some third party server.

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server then runs it, runs the website.

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server, so you'd want to go that one, image it and it's not

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going to be any burden to, I mean, they don't have to take down

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the business to do that.

And then at some point in time, they

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moved to another server.

So what I'm saying is that if we

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start with the personal computers and the server on the date of

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launch, we may find what we need and we might not have to go

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any farther.

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THE COURT:

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MR. CHATTERJEE:

He uploads it to that server.

Okay.

The

They no longer use that

We may hear from the defendant.
Your Honor, it just, it seems to me

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that this is a very focused issue they want to get certain

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code.

We've searched for it.
THE COURT:

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We have--

How have you searched for it?

Tell me

what you've done.

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MR. CHATTERJEE:

We, we, we have actually gone to the

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facilities.

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founder of FaceBook and really the person with the fulcrum of

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this case.

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physically searched his home without, without him participating

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and we've gone--

We've actually gone to Marc Zuckerberg, the

We've gone to his home and we've actually

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THE COURT:

Now, how have you searched his home?

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MR. CHATTERJEE:

We've actually gone through, you

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know, all of his, you know, his room where he keeps all of his

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electronic equipment.

We've gone through the, the other people

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in the house that live there, there are a number of people

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that live there, they're a bunch of college students,

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essentially living together.

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offices and physically searched it.

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one of the things that wasn't entirely clear from the

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presentation was that, it creates the inference that there's

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been no code provided.

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There's one memory stick that we have where we produced that

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code and it was a corrupted file.

We've gone to the FaceBook
We've produced code that,

We've provided a fair amount of code.

Now, the server that

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Mr. Hornick was talking about, originally when the FaceBook was

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created, the server actually was a laptop computer.

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in the same.

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exported it to other places in order to support, you know,

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dozens, hundreds, millions of people accessing the system, but

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there would be new versions of the up code created as the

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system grew and the needs changed.

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that we've been able to find from those earlier days.

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continue searching and we've actually, now that the FaceBook

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has grown there's a person in charge of operations and there's

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also a person in charge of the IT infrastructure.

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working with them to see if we can locate the additional that

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would be responsive that deals with the source of--

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It was one

As the, as the needs of the system grew, they

THE COURT:

We produced all of the code
We

We continue

I take it there's no dispute that they're

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entitled to the source codes and the only issue is whether they

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exist or not, is that true or not?

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MR. CHATTERJEE:

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refinement on that.

Your Honor, I, I think there's one

It's, when you say the source code--

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THE COURT:

Or source codes.

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MR. CHATTERJEE:

Right, the, I, I think after a

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certain point in time, the source codes totally change and

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there's really no, no need or relevance for that, but, however,

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during the relevant time period, the pre-launch-THE COURT:

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time period?
MR. CHATTERJEE:

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THE COURT:

THE COURT:

MR. CHATTERJEE:

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Now when you say you searched,

We have, do you mean have we imaged

them, is that your question?
THE COURT:

We--

Have you looked for deleted items on

them?

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Okay.

what have you done with respect to hard drives?

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Yes, Your Honor, although we have

produced the source codes.

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What do you say the, oh, that's the, the

MR. CHATTERJEE:

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That,

May 21, 2004 issue?

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I think there is, Your Honor.

that's actually the second part.

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Is there a dispute as to the relevant

MR. CHATTERJEE:

Yes.

We've, I mean obviously

there' s-THE COURT:

Have you, have you done what they, if

they got the mirror image, have you done what they're going to

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do?
MR. CHATTERJEE:

We've done some of it.

We're trying

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to do some more of it because, we notified them yesterday.

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think we've found some additional material.

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what it is, and we're trying to take the forensic images and

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provide that information to them if it's responsive.

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THE COURT:

We

We're not sure

Well, it seems to me that the way, the

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way things work is that the plaintiff makes a request for

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evidence that's relevant to the claims and defenses of either

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party of which they're entitled to under the rules.

If they've

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requested this stuff and you have not objected to it, then it

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seems to me it's your burden to produce it.

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would not go to allowing one party to have a mirror image of

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another party's computer unless I was, unless I had some reason

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to believe number one that it wasn't being, that, you know,

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that the defendant wasn't doing it to the extent that they were

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obligated to do it under the federal rules, or there was some

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sort of chicanery involved, and I think that's, that's where we

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are on, on this particular things.

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MR. CHATTERJEE:

And I normally

We, we've produced everything we've

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been able to find and we've searched fairly thoroughly of all,

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all the electronic devices we've been able to find to date, and

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we continue to do that.

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the code that we've been able to find.

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wants to find, is they want to find the Harvard connection

So, Your Honor, I mean, we've produced
Now what the plaintiff

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code--

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THE COURT:

Right.

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MR. CHATTERJEE:

--on these laptops.

It isn't there.

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They may not be happy about that, but that's a truism.

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want to find Harvard connection code copied into the FaceBook

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code that that we produced.

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happy about that.

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information--

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there.

Well, they're not convinced it's not

That, that's the issue.
MR. CHATTERJEE:

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They're not

We've, there are some pieces of

THE COURT:

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That isn't there.

They

Right, and Your Honor, we searched

and, and--

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THE COURT:

Right.

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MR. CHATTERJEE:

--some evidence simply may not exist

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anymore.

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the Draconian relief of mirror imaging every single one of

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these systems is going-THE COURT:

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We, we've looked thoroughly for it, and I'm not sure

You're saying it would do no good because

you've already done it, and you can't find it.

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MR. CHATTERJEE:

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THE COURT:

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MR. CHATTERJEE:

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THE COURT:

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MR. HAMPTON:

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Yes, Your Honor.

That's your position.
Yes, Your Honor.

All right.
Your Honor, if I might be heard

briefly--

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THE COURT:

Sure.

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MR. HAMPTON:

--on behalf of defendant Saverin.

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Defendant Saverin's situation illustrates I think a bit of a

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problem with the plaintiff's monolithic approach here.

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with Mr. Hornick's proposal for a rolling search, he's

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requested the images of all the individual defendants' hard

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drive.

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opposition to this motion, he submitted a declaration stating

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under oath that he never had any of the code, either for the

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Harvard connection or for the FaceBook, and his involvement

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with this whole case was brief.

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was providing some inside on the business model for the

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FaceBook, never had the relevant code.

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worse, however, Your Honor, because he longer has the hard

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drive for the relevant period we're talking about.

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computer that he was using at the time he's given to his

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mother, who is a clinical psychologist in Florida.

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the computer and is using that in the conduct of her business

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and presumably that has highly sensitive patient information on

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it.

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to say well we just want to start with the individual hard

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drives of the individual defendants and the servers of the

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FaceBook, really shows that at least with respect to defendant

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Saverin how overbroad and unjustified that request is.

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sure you'll hear from Mr. Hornick about what he thinks of where

Even

Mr. Saverin is one of the individual defendants.

In

He's an economics student who

The situation is even

The

She now has

So the plaintiff's proposal, although it seems reasonable

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I'm

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we are on that issue now, but as I just heard his proposal

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today, he would still propose that we provide the image of Mr.

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Saverin's individual hard drive, and there's no record evidence

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whatsoever that that is reasonably calculated to lead to

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anything that's relevant in the case, particularly the source

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code that they claim is really what they're after here.

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MR. HORNICK:

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THE COURT:

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MR. HORNICK:

Your Honor, if I might?
Go ahead.
There's a very important reason to do

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imaging other than what we've heard.

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first we've heard that they've made these steps, there's a lot

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of unexplained things about the background of this code, but

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there's a very important reason to do imaging other than to

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find the code and that's to find if it was deleted, for example

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after claims were asserted in this case.

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that, that an expert would look for.

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ago--

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THE COURT:

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MR. HORNICK:

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THE COURT:

They say, and this is the

That's something

Five years ago, ten years

Wait a minute, hold on.
Yes.
Hold on.

Are, are you looking, is your

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search including a search for deleted documents that may be on

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the hard drive that an expert would have been able to retrieve?

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MR. CHATTERJEE:

Your Honor, we've searched for,

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code anywhere on these devices.

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THE COURT:

Answer the question specifically.

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for

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MR. CHATTERJEE:

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THE COURT:

Yes.

At, does your, has the search that you've

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conducted involve a search that would involve the search of

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deleted items that might be recovered?

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MR. CHATTERJEE:

Yes, and it continues to this day.

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THE COURT:

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MR. HORNICK: So the issue is not just whether the

Continue, Mr. Hornick.

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information might have been deleted, but when it was deleted

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and in what situation, what concept.

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THE COURT:

Well, if they can't find the deleted

items, how are they going to find when it was deleted?
MR. HORNICK:

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those things.

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drives was unusual.

Well an expert may be able to confirm

Five years ago, ten years ago, imaging hard
But today--

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THE COURT:

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MR. HORNICK:

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THE COURT:

I know.
--it has become very common.
I know, but it's uncommon for one side in

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a dispute to get a mirror image of another side's computer.

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That is not the usual way the things are done in litigation.

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That, that, that's an extraordinary remedy which is the reason

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that I'm trying to assess the need, your asserted need and what

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their position is.

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MR. HORNCICK:

Well, Your Honor, I would say that

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although that it is unusual that it may not happen on the every

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day course, but it is not so drastic because all it is is the

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device to help try to recover documents that everybody admits

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existed at one time.

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THE COURT:

Yes, but one of the problems with it is

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you got the whole hard drive and you get tons of documents on

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there that are, that are not, not relevant, not necessary for

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the particular purpose and it's a, it's, a lot of defendants or

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opposing parties see it as a gross invasion of the privacy of

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their business.

That's the problem with it.

MR. HORNCICK:

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Well other courts have considered that

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very issue and the problem is that you can't do an image of

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just the part that you need.

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THE COURT:

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MR. HORNCICK:

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Because you don't know what part you

need.

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I know, that's the--

THE COURT:

--reason why it's an extraordinary remedy

to give people mirror images of other people's computers.
MR. HORNCICK:

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But we've built into the particular

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protocol that we're proposing protections against finding and

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using information that is not what we're looking for.

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all, we originally proposed that our expert would do this.

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don't want it to be our expert now for various reasons.

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would propose an independent expert do this.

And the

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independent expert is to look only for code.

And the

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independent expert, we will not be present while he does his

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work.

He'll sign the protective order.

First of

We

There will, nothing

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We

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that he does will disclose any attorney/client privilege.
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THE COURT:

And it will be at your expense?

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MR. HORNCICK:

And it will be at our expense, that's

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right.

What he finds will be provided to both counsel and to,

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and we can provide it to the Court or he can provide it to the

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Court.

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whatever they are in a secure fashion or he can provide them to

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the Court to maintain in a secure fashion until the case is

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over.

He maintains the copies of that, those devices,

The courts that have considered this issue have looked

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at all of these issues about whether the, whether you're

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providing access to privileged information or confidential

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information or other types of information, and they've said

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that you have to, have to weigh the needs of the case versus

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the burden.

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case outweigh the burden and what they do is they put into

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place a protocol that protects the parties' rights so that,

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that burden is minimized.
THE COURT:

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All right.

What's your problem with that

protocol?

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And in many cases have found that the needs of the

MR. CHATTERJEE:

Your Honor, it's, it's exactly the

escalation procedure that Mr. Hornick identified.
THE COURT:

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First off--

But in what, what, why is there, why is

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that a, why is his proposal a problem from your point of view?

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The person who's going to look at it is not connected with

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them.

In other words, they're not going to, you're not going

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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.

January 11, 2006

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