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).

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EXHIBIT 4 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CONNECTU, INC. Plaintiff . . . V. . . FACEBOOK, INC., et al . Defendants . . . . . . . . . . . . . . CIVIL ACTION NO. 07-10593-DPW BOSTON, MASSACHUSETTS SEPTEMBER 13, 2007 TRANSCRIPT OF MOTION HEARING BEFORE THE HONORABLE ROBERT B. COLLINGS UNITED STATES MAGISTRATE JUDGE APPEARANCES: For the plaintiffs: John F. Hornick, Esquire Meredith H. Schoenfeld, Esquire Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 901 New York Avenue, NW Washington, DC 20001 202-408-4000 john.hornick@finnegan.com Daniel P. Tighe, Esquire Griesinger, Tighe & Maffei, LLP 176 Federal Street Boston, MA 02110 617-542-9900 dtighe@gtmllp.com For the defendants: I. Neel Chatterjee, Esquire Orrick, Herrington & Sutcliffe, LLP 1000 Marsh Road Menlo Park, CA 94025 650-614-7400 nchatterjee@orrick.com MARYANN V. YOUNG Certified Court Transcriber Wrentham, MA 02093 (508) 384-2003 4 1 docket number 37 in the earlier litigation. 2 hear the plaintiff and then I’ll hear Facebook on those 3 particular issues. 4 So why don’t I Okay? MR. HORNICK: Thank you, Your Honor. The issue that 5 remains before the Court with respect to docket number 37, 6 which was a motion to compel imagining of the defendants’ 7 electronic memory devices really is part of a compromise to get 8 rid of that motion, and also the related request that we made 9 in the March 10th, 2006 submission which was docket number 148. 10 There were some other follow up discovery requests that we had 11 made after the Court permitted us to do some forensic discovery 12 in November of 2005. 13 have asked where on the 15 electronic memory devices the 14 defendants produced, where is what we’re calling the relevant 15 code. 16 launch, time of launch or after launch up through September of 17 2004. 18 worked on, the facemash code and the coursematch code and we’re 19 saying where is, as a compromise get rid of this motion, we’re 20 saying where is that code on the memory device you produced or 21 if it’s not there just say that you haven’t found it and 22 produce it. 23 The Facebook defendants have produced huge amounts of code on 24 those devices and they’re trying to look good by saying “all 25 existing responsive code has been produced.” And the remaining dispute is this, we The relevant code is the Facebook code from before The Harvard Connection code that Zuckerberg allegedly But what we’ve run into here is a big costly gain. MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 But in lawyers’ 5 1 speak, as the judge well knows, those types of statements 2 don’t mean that any of the relevant code has been produced at 3 all. 4 those memory devices, and if it’s not there just say so. 5 you haven’t found it and you haven’t produced it. 6 So we’ve been repeatedly asking where is this code on Say And it’s important to keep in mind that these devices 7 are devices that were used by individual people. 8 corporate where a hundred different people might have stored 9 things on them and, therefore, you don’t know where things are. 10 These were used by individual people and those people ought to 11 know where, if and where, this code is on those devices. 12 we’ve searched them thoroughly, but it’s like searching for a 13 needle in a haystack, and that haystack, 15 devices, is 790 14 gigabytes, which is 790 billion bytes of information. 15 byte is a character. 16 idea of how big this haystack is. 17 18 They aren’t And Each Now, we wanted to give the Court some THE COURT: When you say 15 devices, what do you mean? 19 MR. HORNICK: 20 drives, external memory devices. 21 them that have been produced. 22 THE COURT: 23 MR. HORNICK: 24 THE COURT: 25 MR. HORNICK: There are hard drives, back up hard There are a total of 15 of Okay. And they produced a-And you’re looking for, tell me again. Yeah, the Facebook code from the time MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 6 1 of launch, at launch or after launch up through September 2 2004, the Harvard Connection code that Zuckerberg allegedly 3 worked on, the facemash code and the coursematch code. 4 THE COURT: Let me get these down. The Facebook code 5 at the time of launch, the Harvard Connection that Zuckerberg 6 worked on-- 7 MR. HORNICK: 8 THE COURT: 9 MR. HORNICK: Right. --and what’s the third? The coursematch code and the facemash 10 code. 11 haystack is, how big this 700-- 12 THE COURT: Now, we wanted to give the Court an idea of how big this Well, wait a minute, let me ask you this. 13 Do you have any codes, have any codes been identified as not 14 being produced pursuant to your request? 15 16 17 MR. HORNICK: Not in those categories. They just say we’ve produced all the relevant code we could find. THE COURT: No, no. Have they – I know all the 18 relevant codes, but as to your request for codes, have they 19 produced any specific ones or identified any specific ones? 20 MR. HORNICK: No, Your Honor. They just gave us 21 these devices or copies of these devices and they said search 22 them yourselves and we did that very thoroughly. 23 the quantity of data that’s on these devices, the average 24 Harold Robbins novel is about 1 megabyte, 790 gigabytes equals 25 750,000 Harold Robbins novels. But the size, That’s how much data is on MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 21 1 THE COURT: 2 MR. HORNICK: 3 THE COURT: 4 MR. HORNICK: 5 I got you. --for those languages. Sure. All right. So up to that point they’re the same. 6 THE COURT: 7 MR. HORNICK: Okay. Now, if these additional paragraphs or 8 if this additional language in paragraph 4 and the defendant’s 9 version of paragraph 5 are inserted it will severely restrict 10 their expert’s ability to search for code and it will 11 effectively prevent searching for deleted data and the protocol 12 says very clearly we can search for deleted data, deleted code 13 that is. 14 searching for deleted data is when data is deleted it loses 15 it’s file extension, and they’re saying in this language that 16 they want to add that you need to search by file extension. 17 Well, there isn’t any file extension once the data is deleted 18 and that actually makes paragraph 5 non-sensible in that 19 regard. In addition to that, you can’t know that something is 20 code until after you’ve done your search. 21 don’t search anything but code. 22 search anything but code then we can’t do our search at all 23 because you don’t know it’s code until after you do the search 24 and this I think shows either a fundamental misunderstanding of 25 the technology or they know that and they know that this And one of the reasons why it will prevent the They’re saying, We’re saying if we can’t MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 22 1 restriction will severely restrict our ability to do the 2 search. 3 that they’re adding is it’s a primitive methodology going file 4 extension and texturing searches. 5 computer program specifically for this purpose and it searches 6 all data. 7 them only code. 8 protocol contains sufficient protections so that they don’t 9 need these additional provisions. Also, the way they want us to do it in this language Our experts have written a It will search everything but it will report back to Now, this protocol, our view is that this There are at least 17 10 guarantees in there plus the one I just mentioned about the 11 computer program only returning code. 12 guarantees in this protocol that ConnectU will never see 13 anything except the relevant code that I mentioned earlier, the 14 Facebook code, the Harvard Connection code, the facemash code 15 and the Coursematch code and related database definitions and 16 metadata. There are at least 17 17 Now, and there’s one other issue in the protocol, 18 Your Honor, and that simply relates to paragraph 12, and in 19 paragraph 12 the defendants want to add some language to the 20 effect that if our experts violate this protocol they cannot 21 testify. 22 point here-- And our position, although this may seem like a minor 23 THE COURT: 24 MR. HORNICK: 25 this protocol. No, it’s not a minor point. --our position is it shouldn’t be in It should be a separate process if there is a MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 1 2 3 4 23 violation, brought to the Court’s attention-THE COURT: Oh, is this protocol in the form of a protective order? MR. HORNICK: It’s in the form of a stipulated order 5 that the parties have signed-- 6 THE COURT: 7 MR. HORNICK: 8 THE COURT: 9 MR. HORNICK: 10 11 12 Would be entered by the Court? Sorry, Your Honor? Would be ordered by the Court? THE COURT: Yes, it would be. Okay. Yes. And I take it whoever is going to do this is submitting to the jurisdiction of the Court? MR. HORNICK: That’s paragraph one, Your Honor. The 13 experts would submit both to the protocol, which is an order 14 from the Court-- 15 THE COURT: 16 MR. HORNICK: 17 Okay. --and to the stipulated protective order in the case, which is also an order from the Court. 18 THE COURT: 19 MR. HORNICK: Okay. And there’s also as I said, there are 20 16 other guarantees in here for preventing what they say is 21 going to happen. 22 THE COURT: 23 MR. CHATTERJEE: Okay. Thanks. Go ahead, Mr. Chatterjee. Your Honor, this goes back to your 24 question about the interface. 25 what code is the plaintiff entitled to here, and this protocol So we have a lot of issues about MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 24 1 is designed to allow them to look for the, to look through our 2 code and find the code that they believe is relevant. 3 back to the first point that we were talking about. 4 very comfortable with them doing that. 5 for paragraph 4 and paragraph 5 is how can they go about doing 6 it? 7 through every file cabinet, and you can think of each document 8 that’s stored on a computer system or an email system as a file 9 sitting in an office. It goes We are The issue fundamentally We don’t think that they should just be allowed to just go We don’t think they should be allowed to 10 walk through each and every one of those files without pre- 11 specifying what it is they’re looking for. 12 paragraph 5 are really at and our suggested addition are that 13 they pre-specify what they’re looking for rather than just 14 letting them rummage through the files. 15 THE COURT: It’s not them. 16 Parmet and Associate first of all. 17 But paragraph 4 and If they want-- It’s, I take it this going to be doing this? 18 19 MR. CHATTERJEE: Isn’t that the one that’s Yes, but it’s their consultant that they’ve hired-- 20 THE COURT: 21 MR. CHATTERJEE: Right. --and they want to have the right to 22 use later on in the case and so it’s very different than the 23 other-- 24 25 THE COURT: Well, what – I haven’t read this protocol completely, but what, are there any restrictions in there as to MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 25 1 what from the examination Parmet can or cannot turn over to 2 ConnectU? 3 MR. CHATTERJEE: Yes, Your Honor, there is. They’re 4 allowed, they’ve defined things in different ways but they are 5 allowed to produce certain types of code and I forget the 6 magic-- 7 THE COURT: Then why are you so concerned about 8 ConnectU learning about these other things that Parmet may 9 possibly search if it doesn’t fall within that category of 10 11 things that Parmet is permitted to turn over? MR. CHATTERJEE: Your Honor, the reason that we’re 12 concerned about it is because this is very different than the 13 other hard drive imaging cases that we talk about. 14 it’s a court-appointed person who does it and they’re only 15 beholden to the Court. 16 hire and they want to reserve their right to use later on in 17 the case after this protocol is done. 18 THE COURT: Normally, In this case it’s somebody that they It’s still going to be done pursuant to a 19 court order that places restrictions upon them as to what they 20 can turn over to ConnectU, and I take it a violation of that 21 would be a violation of the Court order. 22 themselves to the jurisdiction of the Court that resulted in a 23 contempt citation against. 24 25 MR. CHATTERJEE: They subjected Yes, Your Honor, however, one of the big issues associated with that is policing. MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 I mean, how are 26 1 we going to be able to find out if they violate some of these 2 things if we don’t, if we’re not allowed to pre-specify what it 3 is they’re looking for. 4 MR. HORNICK: 5 THE COURT: 6 MR. HORNICK: 7 THE COURT: 8 MR. CHATTERJEE: 9 issues. Your Honor, may I address-No. I’m not sure he’s done. Sorry. Are you done, Mr. Chatterjee? So those are fundamentally the I mean, just to point out kind of the key language in 10 paragraph or paragraph 5. 11 paragraph 5, the two versions really have kind of the key areas 12 in dispute in my mind at least. 13 ConnectU’s proposed paragraph five it says, “The search process 14 may included examination of any files or file fragments which 15 are in the form of ASCII text.” 16 that’s stored on a hard drive. 17 email, A, B, C, D, those types of letters, “including such 18 files which may be found in archive files, compressed files, 19 source code depositories or databases.” 20 they are allowed to look through every email that any of the 21 defendants sent to their lawyers, every document they wrote 22 documenting their interactions with their girlfriend, any 23 financial information that they have, their bank accounts, any 24 of that they’re allowed to look through here. 25 it in paragraph 5 is if you look at the bottom half, we talk I can talk about them separately but About halfway through That’s anything with a letter By letter I don’t mean an So what that says is MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 The way we wrote 27 1 about how they specify the specific types of code. 2 give us the actual code itself that they’re looking for and 3 then they search for it. 4 keyword Facemash for example in the Facemash program, they 5 could pull out, they could use that as a search string 6 criteria. 7 be a fishing expedition through our hard drives. 8 9 10 They could If they wanted to search for the But right now the way they’ve crafted this is it can Your Honor, I’d recommend that you read the Fennel case that I cited in our briefs. THE COURT: I’m very familiar with that. I just 11 think it’s so ironic that you are, you’re so insistent that 12 they be restricted in their search for something that you won’t 13 even specify with respect to the earlier argument. 14 ironic and frankly I don’t think that it’s a meritorious 15 litigable position. 16 It’s very Let me, if you want to have the last word, 17 Mr. Hornick, you will, and then I’ll take the matter under 18 advisement. 19 MR. HORNICK: Your Honor, yes, I would like to say a 20 couple of things. 21 crafted this, actually this protocol was negotiated over about 22 a month’s time between the parties and we came down to these 23 remaining issues. One is that they say that the way we have 24 THE COURT: 25 MR. HORNICK: Right. I would like to just summarize for the MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 1 28 Court the guarantees that I mentioned-- 2 THE COURT: 3 MR. HORNICK: Sure, go ahead. --that are in this document. First I 4 mentioned one that’s not in this document and that is that the 5 computer program that will do the searching, that was written 6 by our expert, will return to the expert only code. 7 not return emails, letters to girlfriends or anything else. 8 will return code. 9 the document itself, I already mentioned that paragraph 1 says 10 that the experts are found by the stipulated protective order 11 in the protocol. It will It’s designed to return only code. 12 THE COURT: 13 MR. HORNICK: It But in Right. Paragraph 1 also says that the experts 14 access to any privileged information will not waive privilege 15 and that ConnectU cannot challenge privilege of these expert-- 16 17 THE COURT: We’re not talking about privilege documents. 18 MR. HORNICK: Well, they’re saying there could be 19 privilege information on these devices. 20 there is if our expert sees any of that, that will not waive 21 privilege and ConnectU cannot argue that that has waived 22 privilege. 23 THE COURT: 24 MR. HORNICK: 25 So to the extent that Okay. That’s paragraph 1. Paragraph 1 also says that protected material, and that’s a defined term, which MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 29 1 is privilege material or anything else that’s subject to some 2 kind of a privilege, cannot be shared with ConnectU at any 3 time, in any way, shape or form. 4 Paragraph 2 says that the analysis that our expert is 5 going to do is going to be on a non-network computer, which 6 means that nobody else can get to it. 7 computer. 8 process, which takes place before the analysis, although 9 ConnectU’s counsel can be present, they can’t see anything on It’s only on that one Paragraph 2 also says that during the imaging 10 the screen. 11 getting anything after the analysis. 12 the experts can disclose information to ConnectU only as the 13 protocol permits, and then paragraph 3 also says Facebook’s 14 counsel is going to be involved in any communications between 15 us and our expert during this analysis period. 16 talk about policing, any time that we send a communication to 17 our expert during this analysis period, we have to copy them. 18 Any time that they communicate with our expert during that 19 period, they have to involve us. 20 talk with our expert during this analysis period, we have to do 21 it in their presence, either in physical presence or on the 22 telephone. 23 discuss with ConnectU only the what’s called “Produced Program 24 Code”. 25 how we’ll get it. Then we go into the protections against us ever And paragraph 3 says that So when they Any time that they want to And then paragraph 3 also says, the experts can Now, here’s how you get Produced Program Code. MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003 Here’s 35 1 2 CERTIFICATION I, Maryann V. Young, court approved transcriber, certify 3 that the foregoing is a correct transcript from the official 4 digital sound recording of the proceedings in the 5 above-entitled matter. 6 7 /s/ Maryann V. Young October 9, 2007 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

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