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 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
[e-mail]
Daniel P. Tighe, Esquire
Griesinger, Tighe & Maffei, LLP
176 Federal Street
Boston, MA 02110
617-542-9900
[e-mail]

For the defendants:

I. Neel Chatterjee, Esquire
Orrick, Herrington & Sutcliffe,
LLP
1000 Marsh Road
Menlo Park, CA 94025
650-614-7400
[e-mail]

MARYANN V. YOUNG
Certified Court Transcriber
Wrentham, MA 02093
[phone]

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docket number 37 in the earlier litigation.

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hear the plaintiff and then I’ll hear Facebook on those

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particular issues.

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So why don’t I

Okay?

MR. HORNICK:

Thank you, Your Honor.

The issue that

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remains before the Court with respect to docket number 37,

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which was a motion to compel imagining of the defendants’

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electronic memory devices really is part of a compromise to get

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rid of that motion, and also the related request that we made

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in the March 10th, 2006 submission which was docket number 148.

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There were some other follow up discovery requests that we had

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made after the Court permitted us to do some forensic discovery

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in November of 2005.

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have asked where on the 15 electronic memory devices the

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defendants produced, where is what we’re calling the relevant

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code.

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launch, time of launch or after launch up through September of

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2004.

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worked on, the facemash code and the coursematch code and we’re

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saying where is, as a compromise get rid of this motion, we’re

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saying where is that code on the memory device you produced or

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if it’s not there just say that you haven’t found it and

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produce it.

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The Facebook defendants have produced huge amounts of code on

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those devices and they’re trying to look good by saying “all

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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
[phone]

But in lawyers’

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speak, as the judge well knows, those types of statements

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don’t mean that any of the relevant code has been produced at

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all.

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those memory devices, and if it’s not there just say so.

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you haven’t found it and you haven’t produced it.

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So we’ve been repeatedly asking where is this code on
Say

And it’s important to keep in mind that these devices

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are devices that were used by individual people.

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corporate where a hundred different people might have stored

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things on them and, therefore, you don’t know where things are.

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These were used by individual people and those people ought to

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know where, if and where, this code is on those devices.

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we’ve searched them thoroughly, but it’s like searching for a

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needle in a haystack, and that haystack, 15 devices, is 790

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gigabytes, which is 790 billion bytes of information.

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byte is a character.

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idea of how big this haystack is.

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They aren’t

And

Each

Now, we wanted to give the Court some

THE COURT:

When you say 15 devices, what do you

mean?

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MR. HORNICK:

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drives, external memory devices.

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them that have been produced.

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THE COURT:

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MR. HORNICK:

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THE COURT:

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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
[phone]

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of launch, at launch or after launch up through September

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2004, the Harvard Connection code that Zuckerberg allegedly

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worked on, the facemash code and the coursematch code.

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THE COURT:

Let me get these down.

The Facebook code

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at the time of launch, the Harvard Connection that Zuckerberg

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worked on--

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MR. HORNICK:

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THE COURT:

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MR. HORNICK:

Right.
--and what’s the third?
The coursematch code and the facemash

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code.

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haystack is, how big this 700--

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THE COURT:

Now, we wanted to give the Court an idea of how big this

Well, wait a minute, let me ask you this.

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Do you have any codes, have any codes been identified as not

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being produced pursuant to your request?

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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

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relevant codes, but as to your request for codes, have they

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produced any specific ones or identified any specific ones?

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MR. HORNICK:

No, Your Honor.

They just gave us

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these devices or copies of these devices and they said search

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them yourselves and we did that very thoroughly.

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the quantity of data that’s on these devices, the average

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Harold Robbins novel is about 1 megabyte, 790 gigabytes equals

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750,000 Harold Robbins novels.

But the size,

That’s how much data is on

MARYANN V. YOUNG
Certified Court Transcriber
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THE COURT:

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MR. HORNICK:

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THE COURT:

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MR. HORNICK:

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I got you.
--for those languages.
Sure.
All right.

So up to that point they’re

the same.

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THE COURT:

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MR. HORNICK:

Okay.
Now, if these additional paragraphs or

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if this additional language in paragraph 4 and the defendant’s

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version of paragraph 5 are inserted it will severely restrict

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their expert’s ability to search for code and it will

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effectively prevent searching for deleted data and the protocol

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says very clearly we can search for deleted data, deleted code

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that is.

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searching for deleted data is when data is deleted it loses

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it’s file extension, and they’re saying in this language that

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they want to add that you need to search by file extension.

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Well, there isn’t any file extension once the data is deleted

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and that actually makes paragraph 5 non-sensible in that

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regard. In addition to that, you can’t know that something is

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code until after you’ve done your search.

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don’t search anything but code.

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search anything but code then we can’t do our search at all

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because you don’t know it’s code until after you do the search

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and this I think shows either a fundamental misunderstanding of

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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
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restriction will severely restrict our ability to do the

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search.

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that they’re adding is it’s a primitive methodology going file

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extension and texturing searches.

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computer program specifically for this purpose and it searches

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all data.

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them only code.

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protocol contains sufficient protections so that they don’t

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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

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guarantees in there plus the one I just mentioned about the

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computer program only returning code.

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guarantees in this protocol that ConnectU will never see

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anything except the relevant code that I mentioned earlier, the

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Facebook code, the Harvard Connection code, the facemash code

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and the Coursematch code and related database definitions and

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metadata.

There are at least 17

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Now, and there’s one other issue in the protocol,

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Your Honor, and that simply relates to paragraph 12, and in

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paragraph 12 the defendants want to add some language to the

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effect that if our experts violate this protocol they cannot

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testify.

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point here--

And our position, although this may seem like a minor

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THE COURT:

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MR. HORNICK:

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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
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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

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that the parties have signed--

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THE COURT:

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MR. HORNICK:

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THE COURT:

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MR. HORNICK:

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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

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experts would submit both to the protocol, which is an order

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from the Court--

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THE COURT:

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MR. HORNICK:

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Okay.
--and to the stipulated protective

order in the case, which is also an order from the Court.

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THE COURT:

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MR. HORNICK:

Okay.
And there’s also as I said, there are

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16 other guarantees in here for preventing what they say is

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going to happen.

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THE COURT:

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MR. CHATTERJEE:

Okay.

Thanks.

Go ahead, Mr. Chatterjee.

Your Honor, this goes back to your

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question about the interface.

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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
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is designed to allow them to look for the, to look through our

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code and find the code that they believe is relevant.

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back to the first point that we were talking about.

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very comfortable with them doing that.

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for paragraph 4 and paragraph 5 is how can they go about doing

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it?

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through every file cabinet, and you can think of each document

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that’s stored on a computer system or an email system as a file

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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

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walk through each and every one of those files without pre-

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specifying what it is they’re looking for.

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paragraph 5 are really at and our suggested addition are that

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they pre-specify what they’re looking for rather than just

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letting them rummage through the files.

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THE COURT:

It’s not them.

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Parmet and Associate first of all.

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But paragraph 4 and

If they want--

It’s, I take it this

going to be doing this?

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MR. CHATTERJEE:

Isn’t that the one that’s

Yes, but it’s their consultant that

they’ve hired--

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THE COURT:

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MR. CHATTERJEE:

Right.
--and they want to have the right to

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use later on in the case and so it’s very different than the

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other--

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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
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what from the examination Parmet can or cannot turn over to

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ConnectU?

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MR. CHATTERJEE:

Yes, Your Honor, there is.

They’re

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allowed, they’ve defined things in different ways but they are

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allowed to produce certain types of code and I forget the

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magic--

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THE COURT:

Then why are you so concerned about

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ConnectU learning about these other things that Parmet may

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possibly search if it doesn’t fall within that category of

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things that Parmet is permitted to turn over?
MR. CHATTERJEE:

Your Honor, the reason that we’re

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concerned about it is because this is very different than the

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other hard drive imaging cases that we talk about.

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it’s a court-appointed person who does it and they’re only

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beholden to the Court.

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hire and they want to reserve their right to use later on in

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the case after this protocol is done.

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THE COURT:

Normally,

In this case it’s somebody that they

It’s still going to be done pursuant to a

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court order that places restrictions upon them as to what they

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can turn over to ConnectU, and I take it a violation of that

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would be a violation of the Court order.

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themselves to the jurisdiction of the Court that resulted in a

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contempt citation against.

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MR. CHATTERJEE:

They subjected

Yes, Your Honor, however, one of the

big issues associated with that is policing.
MARYANN V. YOUNG
Certified Court Transcriber
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I mean, how are

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we going to be able to find out if they violate some of these

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things if we don’t, if we’re not allowed to pre-specify what it

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is they’re looking for.

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MR. HORNICK:

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THE COURT:

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MR. HORNICK:

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THE COURT:

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MR. CHATTERJEE:

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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

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paragraph or paragraph 5.

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paragraph 5, the two versions really have kind of the key areas

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in dispute in my mind at least.

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ConnectU’s proposed paragraph five it says, “The search process

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may included examination of any files or file fragments which

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are in the form of ASCII text.”

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that’s stored on a hard drive.

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email, A, B, C, D, those types of letters, “including such

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files which may be found in archive files, compressed files,

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source code depositories or databases.”

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they are allowed to look through every email that any of the

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defendants sent to their lawyers, every document they wrote

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documenting their interactions with their girlfriend, any

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financial information that they have, their bank accounts, any

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of that they’re allowed to look through here.

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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
[phone]

The way we wrote

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about how they specify the specific types of code.

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give us the actual code itself that they’re looking for and

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then they search for it.

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keyword Facemash for example in the Facemash program, they

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could pull out, they could use that as a search string

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criteria.

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be a fishing expedition through our hard drives.

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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

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think it’s so ironic that you are, you’re so insistent that

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they be restricted in their search for something that you won’t

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even specify with respect to the earlier argument.

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ironic and frankly I don’t think that it’s a meritorious

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litigable position.

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It’s very

Let me, if you want to have the last word,

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Mr. Hornick, you will, and then I’ll take the matter under

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advisement.

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MR. HORNICK:

Your Honor, yes, I would like to say a

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couple of things.

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crafted this, actually this protocol was negotiated over about

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a month’s time between the parties and we came down to these

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remaining issues.

One is that they say that the way we have

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THE COURT:

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MR. HORNICK:

Right.
I would like to just summarize for the

MARYANN V. YOUNG
Certified Court Transcriber
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Court the guarantees that I mentioned--

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THE COURT:

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MR. HORNICK:

Sure, go ahead.
--that are in this document.

First I

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mentioned one that’s not in this document and that is that the

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computer program that will do the searching, that was written

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by our expert, will return to the expert only code.

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not return emails, letters to girlfriends or anything else.

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will return code.

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the document itself, I already mentioned that paragraph 1 says

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that the experts are found by the stipulated protective order

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in the protocol.

It will

It’s designed to return only code.

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THE COURT:

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MR. HORNICK:

It

But in

Right.
Paragraph 1 also says that the experts

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access to any privileged information will not waive privilege

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and that ConnectU cannot challenge privilege of these expert--

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THE COURT:

We’re not talking about privilege

documents.

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MR. HORNICK:

Well, they’re saying there could be

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privilege information on these devices.

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there is if our expert sees any of that, that will not waive

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privilege and ConnectU cannot argue that that has waived

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privilege.

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THE COURT:

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MR. HORNICK:

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So to the extent that

Okay.
That’s paragraph 1.

Paragraph 1 also

says that protected material, and that’s a defined term, which
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is privilege material or anything else that’s subject to some

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kind of a privilege, cannot be shared with ConnectU at any

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time, in any way, shape or form.

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Paragraph 2 says that the analysis that our expert is

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going to do is going to be on a non-network computer, which

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means that nobody else can get to it.

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computer.

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process, which takes place before the analysis, although

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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

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the screen.

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getting anything after the analysis.

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the experts can disclose information to ConnectU only as the

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protocol permits, and then paragraph 3 also says Facebook’s

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counsel is going to be involved in any communications between

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us and our expert during this analysis period.

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talk about policing, any time that we send a communication to

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our expert during this analysis period, we have to copy them.

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Any time that they communicate with our expert during that

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period, they have to involve us.

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talk with our expert during this analysis period, we have to do

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it in their presence, either in physical presence or on the

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telephone.

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discuss with ConnectU only the what’s called “Produced Program

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Code”.

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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
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Here’s

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CERTIFICATION
I, Maryann V. Young, court approved transcriber, certify

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that the foregoing is a correct transcript from the official

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digital sound recording of the proceedings in the

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above-entitled matter.

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/s/ Maryann V. Young

October 9, 2007

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MARYANN V. YOUNG
Certified Court Transcriber
[phone]