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

Filing 377

DECLARATION re #376 Opposition to Motion, Originally filed as Dkt 367 by Facebook, Inc., Christopher Hughes, Andrew McCollum, Dustin Moskovitz, Eduardo Saverin, Thefacebook LLC, Mark Zuckerberg. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11)(Chatterjee, I.)

Case 1:07-cv-10593-DPW Document 367-6

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EXHIBIT 5

Case 1:07-cv-10593-DPW Document 367-6

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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CONNECTU, INC.
: DOCKET NUMBER CA0710593
PLAINTIFF
:
versus
: UNITED STATES COURTHOUSE
:
FACEBOOK, INC., ET AL
DEFENDANTS
: BOSTON, MASSACHUSETTS
------------------------------x

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JUNE 2, 2008
2:30 p.m.

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TRANSCRIPT OF MOTION HEARING
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UNSEALED HEARING ONLY
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BEFORE:
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THE HONORABLE DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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APPEARANCES:
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ATTORNEYS FOR THE PLAINTIFF:
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FINNEGAN HENDERSON FARABOW GARRETT & DUNNER LLP
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BY:
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JOHN F. HORNICK, ESQUIRE
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413
TELEPHONE: [phone]
E-MAIL: [e-mail]
FAX: [phone]

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OFFICIAL COURT REPORTER
DIANE M. MOLAS, RPR, DE CSR, AND NJ CCR
OFFICIAL COURT REPORTER
UNITED STATES DISTRICT COURT - DISTRICT OF MASSACHUSETTS
ONE COURTHOUSE WAY
THIRD FLOOR - SUITE 3200
BOSTON, MA 02210
TELEPHONE: [phone]
E-MAIL: [e-mail]

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PROCEEDINGS REPORTED USING MACHINE STENOGRAPHY.
TRANSCRIPT PRODUCED EMPLOYING COMPUTER-AIDED TECHNOLOGY.
DIANE M. MOLAS, RPR, DE CSR, and NJ CCR
USDC - MAD
OFFICIAL COURT REPORTER

Case 1:07-cv-10593-DPW Document 367-6
UNSEALED HEARING

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THE COURT:

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Do you want me to rule on the protocol,

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whether or not Mr. Parmet was authorized to disclose anything

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other than the code?

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MR. UNDERHILL:

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THE COURT:

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MR. UNDERHILL:

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I mean, I'll rule on that.
I'm not looking at that issue,

Your Honor.

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No, Your Honor.

What I am looking at, however, is, we believe,
under the facts as we know them now, is very, very serious

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attorney misconduct in this case and a violation of

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This Court's orders by Facebook's attorneys, and that is an

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issue --

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THE COURT:

Let me see.

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What does in a mean?

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Does it mean that they willfully withheld documents

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that should have been disclosed; that is, they had an

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obligation to disclose the documents and they didn't disclose

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them?

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MR. UNDERHILL:

That is, in fact, the case,

Your Honor.
THE COURT:

Now, how do I deal with that when it is

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a moving target; that is to say, it was rolling Discovery, and

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they have not come to the concluding point at which they were

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obligated to make that disclosure?

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MR. UNDERHILL:

Well, we believe that they were,

DIANE M. MOLAS, RPR, DE CSR, and NJ CCR
USDC - MAD
OFFICIAL COURT REPORTER

Case 1:07-cv-10593-DPW Document 367-6
UNSEALED HEARING

Filed 09/02/11 Page 4 of 8

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identified in violation of the protocol, to the extent we have

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not done so already, and will produce them if responsive, not

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privileged or otherwise objectionable.

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ConnectU's counsel when production is complete.

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We will tell

Now, this was only three days, four days after

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Mr. Parmet told them about the documents.

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unsolicited, that they would produce them, twice.

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THE COURT:

They told him,

Well, see, the problem with that -- and

it really goes back, I guess, to Exhibit 7, which is:

You

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knew, at the time that you entered into the agreement, the

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settlement term agreement, that it wasn't complete.

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MR. HORNICK:

Well, Your Honor, that happens in

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many cases, but not in all cases is there an affirmative

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obligation to produce.

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Now, Your Honor referred to a case --

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THE COURT:

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The affirmative obligation to produce.

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Now, what does that mean?

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MR. HORNICK:

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THE COURT:

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MR. HORNICK:

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THE COURT:

Wait.

Yes.

You mean, in Discovery?
Yes.

And Discovery here is ongoing and

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incomplete, so what you would like me to do is rear back and

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say:

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before the settlement term agreement?

This disclosure should have been made on "X" date,

DIANE M. MOLAS, RPR, DE CSR, and NJ CCR
USDC - MAD
OFFICIAL COURT REPORTER

Case 1:07-cv-10593-DPW Document 367-6
UNSEALED HEARING

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MR. HORNICK:

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That's right, Your Honor, and the

reason is -THE COURT:

Where will I find that in the

Federal Rules of Civil Procedure, or anywhere else?
MR. HORNICK:

Well, Rule 26 says, for example, that

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there must be a timely supplementation if you find out that

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your production is incomplete.

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Now, since Rule 34 only gives you 30 days to
produce documents in the first place, I would argue that, if

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you come into knowledge that your production is incomplete

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timely, there's a good argument to be made that timely means

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around thirty days, no more than thirty days.

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Now, this was not a case, Your Honor, where --

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THE COURT:

Why didn't you come to court and ask

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for that, then, because you had more than thirty days after

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your request?

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MR. HORNICK:

But, Your Honor, we had three motions

to compel pending over a period of two years.

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THE COURT:

Right; so you didn't bring that one.

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The short of it is that -- at least, the argument,

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I think, can fairly be made that -- you knew it was

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incomplete, you knew there was a dispute, and, yet, you

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entered into the settlement term agreement.

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Now, somebody may say:

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Well, there is still some

sort of obligation to provide exculpatory evidence before the
DIANE M. MOLAS, RPR, DE CSR, and NJ CCR
USDC - MAD
OFFICIAL COURT REPORTER

Case 1:07-cv-10593-DPW Document 367-6
UNSEALED HEARING

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THE COURT:

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I'll tell you, my view is, if

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Judge Ware says that this is an enforceable agreement; that

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is, the term sheet and settlement agreement's enforceable,

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these cases were dead on the day that this agreement was

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entered into or the day after.

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If it's not, then, you're right, they're over, and

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that's the whole gist of the question, but it seems to me an

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undue waste of judicial resources, and the parties have their

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own and have been making their own choices about the

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expenditure of theirs, to litigate this in a parallel fashion,

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particularly when nobody's asking me to enforce this

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agreement.

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I will take my direction from Judge Ware and his
resolution.
If this isn't an enforceable agreement, then, the
case is still on -- cases are still on.
MR. HORNICK:

Your Honor, the way that you've

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phrased that point several times today makes me wonder whether

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This Court would entertain a motion to open the settlement,

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based upon misconduct of the plaintiffs or their counsel in

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failing to produce documents that they should have produced

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before; in other words, you've asked me and I'm asking you --

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THE COURT:

Not, until after Judge Ware -- I'd

ask -- not until Judge Ware rules on this.
I've asked you in a large fashion, whether you want
DIANE M. MOLAS, RPR, DE CSR, and NJ CCR
USDC - MAD
OFFICIAL COURT REPORTER

Case 1:07-cv-10593-DPW Document 367-6
UNSEALED HEARING

Filed 09/02/11 Page 7 of 8

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fully familiar and fully prepared to comply with this

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provision.

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My own role in this, I think, is to do no more than

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simply preserve evidence which may or may not become relevant

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in the decision-making process, with respect to settlement,

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which is now ongoing before Judge Ware in California.

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This seems to me the orderly way to proceed, and my

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expectation, as I expressed to counsel, is that, if being

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aware of the universe of potential disputes between the

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parties, Judge Ware, nevertheless, chooses to enforce the

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settlement term agreement, that will be the end of the two

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cases pending before me.

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Whether there's follow-on litigation or some other

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initiatives that are undertaken is far too speculative for me

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to address at this point.

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If he finds that the settlement agreement expressed

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in the settlement term sheet is not enforceable, then, we will

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re-ignite this case -- or, these cases, I should say -- and

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continue the litigation to some other resolution, but the

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short of it is that the core of the case is, I think, and the

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core of the question of whether or not the case is continued

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is before Judge Ware, and, until he's made those

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determinations, I do nothing, other than to ensure that there

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is available such evidence as may become relevant at some

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point in the process.
DIANE M. MOLAS, RPR, DE CSR, and NJ CCR
USDC - MAD
OFFICIAL COURT REPORTER

Case 1:07-cv-10593-DPW Document 367-6

Filed 09/02/11 Page 8 of 8

C E R T I F I C A T I O N

I, DIANE M. MOLAS, a Registered Professional
Reporter (RPR), a Certified Shorthand Reporter (CSR) in the
State of Delaware, a Certified Court Reporter (CCR) in the
State of New Jersey, and a Notary Public in the Commonwealth
of Pennsylvania, do hereby certify that the foregoing is a
true and accurate transcript of the proceedings reported by
me, on June 2, 2008, and that I am neither counsel, nor kin,
to any party or participant in said action, nor am I
interested in the outcome thereof.
WITNESS my hand, this
Sixth Day of June, 2008.

________________________________________
Diane M. Molas, RPR, DE CSR, and NJ CCR
DE Certification Number 208-RPR
NJ Certification Number 30XI00228400
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(The foregoing certification of this
transcript does not apply to any reproduction of the same by
any means, unless under the DIRECT CONTROL AND/OR SUPERVISION
of the Certifying Court Reporter herself. THE COURT
REPORTER'S CERTIFICATION NEVER APPEARS AS A PHOTOCOPIED
SIGNATURE.)
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