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 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF MASSACHUSETTS

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Civil Action No. 04-11923-DPW
.
.
. Boston, Massachusetts
v.
. March 3, 2006
.
MARK ZUCKERBERG, et al
.
Defendants
.
. . . . . . . . . . . . . . . .

CONNECTU LLC
Plaintiff

TRANSCRIPT OF MOTION HEARING
BEFORE THE HONORABLE ROBERT B. COLLINGS
UNITED STATES MAGISTRATE JUDGE
APPEARANCES:
For the plaintiff: John F. Hornick, Esquire, Margaret A.
Esquenet, Esquire, Troy Grabow, Esquire, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, 901 New York Avenue, N.W.,
Washington, DC 20001, [phone].
For the defendants: Daniel K. Hampton, Esquire, Holland &
Knight, LLP, 10 St. James Avenue, Boston, MA 02116, (617) 5236850, Monte Cooper, Esquire, Joshua Walker, Esquire, Orrick,
Herrington & Sutcliffe, LLP, 1000 Marsh Road, Menlo Park, CA
94025, [phone].
Steven M. Bauer, Esquire and Jeremy P. Oczek, Esquire,
Proskauer Rose, LLP, One International Place, Boston, MA
02110, [phone].
For defendant Eduardo Saverin: Daniel Hampton, Esquire,
Holland & Knight, LLP, 10 St. James Avenue, Boston, MA 02116,
[phone] 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.

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extension, doc is not.

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recover all source code.

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November the issue was source code.

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THE COURT:

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MR. COOPER:

We made a gargantuan effort to
At the hearing that was held in

I remember that.
As the motions were framed, it was

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source code.

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Mr. Hornick has stood up and for the most part not talked about

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source code.

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That is what we have tried to produce.

That’s what--

THE COURT:

Except that he still hasn’t gotten the

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source codes that were the subject of the November hearing as I

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understand it?

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MR. COOPER:

No, he has.

That’s the whole point.

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What he hasn’t received is any of the data that exists that is

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not source code and that is where this dispute rises.

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as the Court itself anticipated when it was talking about

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imaging, imaging is going to capture a whole panoply of other

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types of data that isn’t source code.

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hard-drives of individual students that can have for instance

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downloadable music.

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relevant.

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didn’t include non-source code extensions, that he hasn’t

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received any other source code that – let me rephrase it.

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hasn’t gotten source code that he wanted because it just

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doesn’t exist.

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Remember

These are

It’s not a source code file.

It’s not

What he is complaining is that the search terms

What he’s now asking for--

THE COURT:

Except it did exist at one time as I

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He

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understand it.

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MR. COOPER:

We have given an extensive interrogatory

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explaining the history of the drives themselves.

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disks that he was referring to was, I believe, Vaiaba, I

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believe it’s V-A-I-A-B-A--

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MR. HORNICK:

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MR. COOPER:

One of the

Vaiaba.
--Vaiaba hard-drive blind to Mark

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Zuckerberg that Mr. Zuckerberg just started in September of

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2003 before this case even existed and before the litigation

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issue even existed.

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THE COURT:

Well, wait a minute.

Let me stop you

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there cause as long as you’re talking about Mr. Zuckerberg, why

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won’t you turn over his hard-drive?

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that you said you would once it was found.

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Why won’t you stay with your representation?

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MR. COOPER:

THE COURT:

MR. COOPER:

THE COURT:

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MR. COOPER:

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Well, what were you agreeing to turn it

No, we have copies of the hard-drive, I

mean--

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We never agreed to turn over the

over for, to put on a Christmas tree or something?

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Now it’s found.

hard-drive forensic imaging by Mr. Hornick which is what--

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Mr. Hornick represents

Yeah.
I mean, that’s, I mean, there’s a

difference.
THE COURT:

He represented to me and if we get into a

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We’re asking that they produce back to whenever the

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documents would first exist.

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formed until late July 2004, so we wouldn’t want to limit

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ourselves to corporate documents back to the date the

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corporation was formed because the entity existed and was

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operating--

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THE COURT:

As I said, the corporation wasn’t

Is there any documents that this company

ever generated that you don’t want?
MR. HORNICK:
THE COURT:

That I don’t want?

Yeah.

Frankly, I don’t know that I’ve

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ever seen document requests this broad.

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search warrant as an unconstitutional general search warrant if

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they asked for all this stuff.

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MR. HORNICK:

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THE COURT:

I mean, I’d strike a

Your Honor, we tried it before--

I mean, corporate records, records

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directly, business meeting, corporate resolutions, corporate

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filings with any state, employee payroll records, financial

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records, stock certificates, contracts, loan documents.

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mean, I don’t know what you’re planning out here, but it’s just

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very, very broad.

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MR. HORNICK:

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THE COURT:

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to compel as to all this stuff.

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MR. HORNICK:

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THE COURT:

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Well, Your Honor, they are broad.

I’m certainly not going to allow a motion

Your Honor, they are broad.

Any contract between any non-party on the

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Facebook.

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pencils?

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Oh, my God, they have a contract order on

MR. HORNICK:

Well, Your Honor, pencils may be a

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trivial example, but if there were contracts during the six

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months, for six months for--

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THE COURT:

Well, that’s why I was asking you for the

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time limitation because you keep saying six months but these

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interrogatories, or these requests, as I understand it, are not

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limited by a timeframe.

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MR. HORNICK:

Well, these requests were, when they

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were propounded, they were propounded for the time period from

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the Facebook’s inception up to late April of 2005, which was

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when they were propounded, so they covered a period of about a

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year and a half.

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is only two years old, so we’re not talking about a lot of

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documents here.

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have.

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saying tell us what you want.

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because I don’t know what they have and they certainly aren’t

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going to tell us, so we have propounded broad requests, that’s

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right.

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find documents that you don’t know one way or the other whether

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they exist.

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evidence.

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to the claims, and it falls clearly within the scope of

It’s not a long period of time.

They company

They are broad because we don’t know what they

I don’t know any other way, and the defendants keep
I don’t know what we want

We do it in every case, because it’s the only way to

We don’t know where we’re going to find the

But we know that this type of evidence is relevant

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specifically changed the reasonableness standard from

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Oppenheimer and in the advisory notes specifically advised that

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the precise reason why was the overwhelming desire of the bar

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to stop fishing expeditions.

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fishing expeditions is cited, but you were wondering when it

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was overruled.

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I can’t remember if the word

It was the 2001 amendments.

THE COURT:

I knew it was in the last couple of

years.
MR. COOPER:
don’t know what is.

If this isn’t a fishing expedition, I

We have 198 requests for production.

THE COURT:

I think actually Mr. Hornick specifically

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said it was a fishing expedition, not in so many words, when he

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said I make it broad so I can, so basically I can go fishing

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and see if there’s any evidence.

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MR. COOPER:

Then I could, I do not need to stand up

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in front of you because I have the advisory committee of the

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rule changes in 2001 behind me.

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The fact of the matter is there are 198 requests that have been

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served in this case.

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26 interrogatories, one more than permitted by the federal

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rules, three sets of requests for production, one more

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permitted than by the local rules.

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somewhere between 10 and 15, we’ll just take the conservative

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10 subpoenas that have been served.

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information he’s talking about he’s independently sought from

You already know that change.

We have four motions to compel.

We have

You have, I believe,

Much of the investment

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the investors through a subpoena eliciting a third party

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objection.

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already reading, the problematical nature of these broad

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requests.

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because I already went through what are problematical about

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asking for details like sports tickets.

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hard pressed to believe that that’s a valid damages.

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you tailor a request to have us produce documents subject to

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damages, it must be reasonably tailored.

I don’t need to point out beyond what you’re

Many of these requests I also don’t want to belabor

I mean, I’m just am
Even if

It doesn’t require

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all the dynamics of the investor information.

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if I’m not mistaken is us to give an aggregate investment

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value.

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level of a burden?

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really wants?

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amount of share hold things of each investor or is it what the

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value of the company is?

Those are the sorts of questions we

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should be talking about.

Again, the fundamental issue in

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discovery is what do you want and why.

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right, this is a fishing expedition.

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is never to be born.

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allegations of the case.

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reasonable, reasonably related to evidence and a demand for

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sports tickets isn’t, and that is actually called out.

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I could go through every one of these requests, Your Honor, but

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I’m willing to just let you read the request and see the

What you want,

Why should all the investors also be subject to this
What is it the defendant or the plaintiff

Does he really want the names in the minute

In this case, if you’re

The law says that burden

It must be reasonably tailored to the
It must be calculated to lead to

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I mean,

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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.

__________________________

March 13, 2006

Maryann V. Young__________

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