CROSS ATLANTIC CAPITAL PARTNERS, INC. v. FACEBOOK, INC. et al

Filing 42

MOTION to Compel Full And Complete Interrogatory Responses And Documents filed by CROSS ATLANTIC CAPITAL PARTNERS, INC..Memorandum, Certificate of Service. (Attachments: # 1 Exhibit A Through Exhibit D In Support of Motion to Compel# 2 Exhibit D In Support of Motion To Compel# 3 Exhibit F Through Exhibit I In Support of Motion to Compel)(TECCE, FREDERICK)

CROSS ATLANTIC CAPITAL PARTNERS, INC. v. FACEBOOK, INC. et al

Doc. 42

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CROSS ATLANTIC CAPITAL PARTNERS, INC., Plaintiff, vs. FACEBOOK, INC. and THEFACEBOOK, LLC, Defendants. : : : : : : : : : : :

CIVIL ACTION NO.: 07-CV-02768

ORDER AND NOW this _______ day of ______________, 2007, upon consideration of plaintiff=s Motion to Compel Full And Complete Interrogatory Responses and Documents, and the defendants= response thereto, IT IS HEREBY ORDERED that plaintiff=s motion is GRANTED, and within five (5) days from the date of this Order, defendants shall: (1) provide full and complete answers to plaintiff's interrogatories Numbers 3, 5 and 11; (2) (3) produce a full and complete copy of their source code; produce a full and complete copy of their federal tax returns for the period 2004 to the present; (4) produce a full and complete copy of documents responsive to plaintiff's document request Numbers 18, 23, 24, 38, 55, 56 and 57; (5) produce all electronically stored information responsive to plaintiff's

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request fro production of documents in their native form; and (6) produce a full and complete copy of any searchable databases containing responsive documents that was created prior to this commencement of this action. BY THE COURT:

_______________________________ HON. JOHN R. PADOVA U.S. District Court Judge

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CROSS ATLANTIC CAPITAL PARTNERS, INC., Plaintiff, vs. FACEBOOK, INC. and THE FACEBOOK, LLC, Defendants. : : : : : : : : : : :

CIVIL ACTION NO.: 07-CV-02768 HON. JOHN R. PADOVA

PLAINTIFF=S MOTION TO COMPEL FULL AND COMPLETE INTERROGATORY RESPONSES AND DOCUMENTS COMES NOW, the plaintiff, Cross Atlantic Capital Partners, Inc., by and through its undersigned counsel, and hereby moves to compel production of documents and full and complete substantive interrogatory responses. Despite plaintiff=s requests, defendants Face Book, Inc. and Thefacebook, LLC. have refused to produce documents or provide full and complete or substantive responses to plaintiff=s First Set of Requests For Production and First Set of Interrogatories. The grounds for this motion are set forth in the accompanying memorandum and attached exhibits which are incorporated by reference as if fully set forth herein.

WHEREFORE, plaintiff Cross Atlantic Capital Partners, Inc. respectfully requests that this Court grant its motion and order the production of responsive documents and full and complete substantive interrogatory answers within five days. Respectfully submitted,

Dated: November 25, 2007

/s/ Frederick A. Tecce Thomas J. Duffy, Esquire (PA ID # 34729) Patrick J. Kennan, Esquire (PA ID # 53775) Duffy & Keenan The Curtis Center, Suite 1150 Independence Square West Philadelphia, Pennsylvania 19106 [phone] [phone] (Fax) [e-mail] Frederick A. Tecce, Esquire M CS HEA\T ECCE, P.C. The Bell Atlantic Tower - 28 th Floor 1717 Arch Street Philadelphia, Pennsylvania 19103 [phone] [phone] (Fax) [e-mail] Counsel for plaintiff Cross Atlantic Capital Partners, Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CROSS ATLANTIC CAPITAL PARTNERS, INC., Plaintiff, vs. FACEBOOK, INC. and THE FACEBOOK, LLC, Defendants. : : : : : : : : : : : :

CIVIL ACTION NO.: 07-CV-02768-JP HON. JOHN R. PADOVA

PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL FULL AND COMPLETE INTERROGATORY RESPONSES AND DOCUMENTS I. INTRODUCTION Defendants, Facebook, Inc. and Thefacebook, LLC (together "Facebook"), have failed to provide full and complete substantive responses to plaintiff=s interrogatories. In particular, defendants have refused to provide any information concerning their asserted defenses of non-infringement and invalidity. Defendants base their refusal on the grounds that defendants needed to first see plaintiff=s claim construction and infringement contentions. Putting aside the legitimacy of that objection, on October 17, 2007 plaintiff produced its detailed, 24-page infringement contentions. Thereafter, October 26, 2007, plaintiff produced its proposed claim constructions. Despite that, defendants have refused to supplement their interrogatory responses as required by F ED.R.C IV.P. 26. Additionally, defendants have refused to produce certain relevant and discoverable documents in response to plaintiff=s document requests, including, but not limited, to

defendants' source code, corporate tax returns and information concerning the method they use to perform "targeted advertising." Defendants have instead produced mostly non-responsive documents in the form of non-searchable electronic "TIFF" files, which contravenes F ED.R.C IV.P. 34(b) since that form is neither reasonably useable nor the form in which the documents are usually maintained by defendants. This Court properly provided the parties with sufficient time to complete discovery. However, that schedule does not, nor should it, allow time for any party to be dilatory in meeting its discovery obligations. Accordingly, plaintiff hereby moves to compel. II. BACKGROUND A. Procedural History

This case was commenced on July 3, 2007 when XACP filed its complaint for patent infringement. The complaint alleges that Facebook infringes the claims of United States Patent No. 6,519,629 B2 ("`629 Patent"), entitled System for Creating a Community for Users with Common Interests to Interact In. Cmpl., Count I && 22-30. On July 20, 2007, the summons and complaint were served on Facebook. (D.E. # 6.). On August 15, 2007, this Court approved the parties= stipulation extending the time for Facebook to answer or otherwise plead until September 4, 2007. (D.E. # 14.) On September 4, 2007, Facebook answered and counterclaimed seeking a declaration of non-infringement and invalidity regarding the >629 Patent. (D.E. # 16.). On September 10, 2007, Facebook filed a motion to transfer venue. (D.E. # 23). On -2-

September 24, 2007, XACP filed its response in opposition to Facebook=s motion to transfer (D.E. # 31). The Court denied Facebook=s motion to transfer venue on September 28, 2007 (D.E. # 33). On September 24, 2007, this Court conducted a Preliminary Pretrial Conference. (See, Report at D.E. # 32). On October 15, 2007, the Court entered its Pretrial Scheduling Order, which set a discovery deadline of March 26, 2008 and a deadline for expert disclosures of February 25, 2008 . (D.E. # 36). B. Factual Background

The underlying facts concerning this case are set forth in plaintiff=s response in Opposition to Defendants= Motion to Transfer Venue (D.E. # 31), they will not be repeated here other than as necessary for the purposes of the instant motion. On September 14, 2007, plaintiff XACP served defendants with Plaintiff Cross Atlantic Capital Partners, Inc.=s First Set of Interrogatories Directed to Defendants and Plaintiff Cross Atlantic Capital Partners, Inc.=s First Requests For Production of Documents and Things Directed to Defendants.1 Defendants' responses to that discovery were due on October 17, 2007. On October 12, 2007, defendants forwarded a proposed protective order for plaintiff=s review. A copy of counsel=s October 12, 2007 e-mail and proposed protective

1

Copies of plaintiff=s interrogatories and documents are not attached. The specific document requests and interrogatories are contained in Defendants= responses which are attached hereto as Exhibits D & E respectively. -3-

order is attached hereto as Exhibit A. The parties were not able to reach an agreement regarding the protective order prior to the October 17, 2007 response date. However, the parties agreed to treat all documents and information produced in response to the discovery requests as AAttorneys Eyes Only@ pending resolution of the protective order. A copy of defendants= counsel=s confirming October 17, 2007 e-mail is attached hereto as Exhibit B. One day later, on October 18, 2007, plaintiff provided defendants with a proposed protective order which was acceptable to XACP. A copy of Mr. Keenan=s email and proposed protective order is attached hereto as Exhibit C. Defendants never responded to that communication. On October 17, 2007, defendants served XACP with Defendants= Response to Plaintiff Cross Atlantic Capital Partners, Inc.=s First Set of Interrogatories, redacted portions of which are attached hereto as Exhibit D.2 On October 17, 2007, defendants also served their responses to Plaintiff Cross Atlantic Capital Partners, Inc.=s First Requests For Production of Documents and Things Directed to Defendants, a copy of which is attached hereto as Exhibit E. Despite the parties' agreement to treat all documents and information produced as "Attorneys Eyes Only," Facebook did not provide any documents with its responses. Defendants also refused to answer plaintiff's interrogatories, Numbers 3, 5 and 11, which requested information concerning defendants' asserted defenses of non2

Defendants designated their interrogatory responses as "Attorneys Eyes Only." In accordance with the agreement between counsel for the parties, Exhibit D contains only those portions of the Defendants' interrogatory responses relevant to the instant motion and has been redacted so as not to contain any Facebook confidential information. -4-

infringement and invalidity. Defendants claimed that they could not answer the interrogatories until plaintiff produced its proposed claim construction and infringement analysis. See, Exhibit D at 5-7 & 12-13. After defendants' counsel failed to respond to Mr. Keenan's e-mail or the proposed Protective Order submitted to defendants' counsel on October 18, 2007, plaintiff provided defendants with an executed Protective Order on October 30, 2007 so that discovery would not be delayed. A copy of Mr. Keenan's October 30, 2007 letter and executed Protective Order is attached hereto as Exhibit F. Plaintiff also requested dates for defendants to make responsive documents available for inspection. Id. After defendants failed to respond to plaintiff's October 30, 2007 letter, plaintiff's counsel wrote to defendants' counsel again on November 8, 2007, a copy of which is attached as Exhibit G. In that letter, plaintiff again requested that defendants comply with their discovery obligations. On November 13, 2007, defendants' counsel advised plaintiff that Defendants would only produce responsive documents in TIFF format. TIFF stands for Tagged Image File Format, which a non-searchable format. Unlike other types of files such as Word or .pdf documents or files in their native format, individual TIFF images cannot be electronically searched so as to identify and locate responsive documents within the large production. Instead, the TIFF images must be viewed one at a time on a computer screen - an extremely time-consuming process. That very day, plaintiff advised defendants' counsel in writing that production of -5-

documents in TIFF format was unacceptable and requested that all electronic documents be produced in the form they are usually maintained, i.e., "in their native format." See November 13, 2007 Letter from Patrick J. Keenan attached hereto as Exhibit H. Two days later, in a November 15, 2007 letter, plaintiff again reiterated its position and reminded defendants that Rule 34(b) prohibits a party from producing electronically stored information in a non-searchable format when the information had been previously maintained in a searchable format. On November 16, 2007, defendants produced approximately 107,000 nonsearchable TIFF files. Despite plaintiff's repeated requests, and their obligation to do so under the rules, Defendants have refused to produce the documents in their native format. In their native format, the vast majority, if not all, of the documents would be searchable by electronic means. The only alternative to the TIFF files that Defendants have offered is to require plaintiffs to access a searchable database of documents at the offices of defendants' counsel, which is not even presently available to plaintiff in Philadelphia. It is apparent that as a result of other litigation, defendants established and have maintained this database in California since before this action was commenced. The database is discoverable and should be produced. III. ARGUMENT A. Defendants Must Be Compelled to Supplement Their Responses to Plaintiff's Interrogatory Nos. 3, 5 and 11 and Document Requests Nos. 23 and 24 Pursuant to Rule 26(e)

Despite their obligations to do so, defendants have refused to supplement their -6-

discovery responses with information concerning their asserted defenses of noninfringement and invalidity. Rule 26(e) provides: (e) Supplementation of Disclosures and Responses. A party who has made a disclosure under subdivision (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the Court or in the following circumstances: The party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the responses in some material respect are incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other party during the discovery process or in writing.

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F ED.R.C IV.P. 26(e)(2). Plaintiff=s Interrogatory No. 11 requested: With respect to each Online Community Creation System and/or Created Online Community service or product identified or listed in the answers to these Interrogatories, as to which infringement is denied by Facebook, identify each element (including its claim construction and all intrinsic and extrinsic evidence that supports Facebook=s proposed claim construction), feature, functional characteristic or other matter, if any, upon which Facebook intends to rely as a point of material difference from the systems or methods disclosed and claimed in the `629 Patent and describe the purpose and use of such feature, element functional characteristic or other matter. See, Exhibit D at 12. In addition to asserting various defenses, Facebook responded to plaintiff=s interrogatory as follows: Subject to and without waiving its General Objections and the objections set forth above, Facebook cannot respond to this contention interrogatory until it has had a reasonable opportunity to consider Plaintiff=s disclosures and responses to discovery requests concerning the claims of the >629 Patent Plaintiff is proposing, and the priority date of the >629 Patent Plaintiff is relying upon. Facebook will provide its claim construction and related information at the deadline for doing so under the Court=s Pretrial Scheduling Order and reserves the right to supplement -7-

this interrogatory after it has a chance to review and analyze its defenses in light of Plaintiff=s disclosures. See, Exhibit D at 13. Defendants asserted similar responses to plaintiff's interrogatories Nos. 3 and 5, and document requests Nos. 23 and 24, which requested the factual basis and documentary support for defendants' claim that the `629 Patent is invalid due to prior art and obviousness. See, Exhibit D at 3-7; Exhibit E at 20-22. On October 17, 2007, plaintiff served its responses to Facebook's First set of interrogatories. Plaintiff's 24-page response provided a detailed indication of XACP's infringement contentions including where each element of the asserted claims could be found on the accused Facebook website. Since defendants have refused to produce the source code for their website, plaintiff's detailed responses were based on publicly available information. Thereafter, on October 26, 2007, in accordance with this Court's Pretrial Scheduling Order (D.E. # 36), XACP provided defendants with a copy of plaintiff=s proposed claim construction. Plaintiff has requested in writing that defendants supplement their answers to interrogatories Nos. 3, 5 and 11. Despite the fact that Facebook has been in possession of plaintiff=s infringement contentions and claim constructions for nearly a month, defendants have refused to supplement their interrogatory responses as required by Rule 26(e)(2). Accordingly, the Court is respectfully requested to order defendants to supplement their answers to plaintiff's interrogatories Nos. 3, 5 and 11 with five (5) days.

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B.

Defendants Must be Compelled to Produce Discoverable Documents and Information Which is Being Withheld

As was previously discussed, Defendants have refused to produce documents and information sought by plaintiff's request for production of documents Nos. 18, 38, 55, 56 and 57. These document requests seek relevant documents and information concerning Defendants' source code for their website, corporate tax returns, information concerning defendants' exclusive advertiser agreement with Microsoft, and information concerning the method they use to perform "targeted advertising." Since all of the requested documents and information are relevant and discoverable, defendants should be ordered to produce them. 1. Discovery Standards Under Rules 26 and 37

Federal Rule of Civil Procedure ("Rule") 26(b)(1) provides, inter alia: Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Rule 37 further provides: "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions....@ F ED.R.C IV.P. 37(a)(2)(A). This Rule may be enforced at the discretion of the Court. Capitol Pants v. U. S. F. & G., 1996 U.S. Dist. LEXIS 1279 (E.D. Pa. Feb. 5, 1996); O=Connor v. Am Gen=l Corp., Civ. A. No. 85-6679, 1992 WL 382366, * 2 (E.D. Pa., Dec. -9-

7, 1992). The burden is on the party opposing discovery to show good cause why discovery should not be permitted. Id. "Broad allegations of harm, unsubstantiated by specific examples, are not sufficient to justify an order to protect a person from `annoyance, embarrassment, oppression, or undue burden or expense.'" Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483-484 (3d Cir. 1995)(emphasis added). Although Rule 26(b)(1) limits discovery to "relevant information," it is well settled that "discovery requests may be deemed relevant if there is any possibility that the information may be relevant to the general subject matter of the action." Caruso v. The Coleman Company, 157 F.R.D. 344, 347 (E.D. Pa. 1994). "Relevance in a discovery context is construed more broadly than is relevance for trial." Speller v. United States, 14 Cl.Ct. 170, 172 (1988). As stated by the Supreme Court, relevancy for discovery purposes encompasses "any matter that bears on, or reasonably could lead to other matters that could bear on, any issue that is or may be in the case...." Klonosky v. Mahleb, 156 F.3d 255, 267 (1st Cir. 1998) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). Consistent with the notice-pleading system established by the Rules, "discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues." Oppenheimer, 437 U.S. at 351. "Where there is doubt over relevance, [Rule 26(b)(1)] indicates that the court should be permissive." Klonosky, 156 F.3d at 267, citing Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1024 (Fed. Cir. 1986).

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2.

Plaintiff's Document Requests Nos. 18, 38, 55, 56 & 57 Seek Relevant and Discoverable Information Which Defendants Must Produce

In Plaintiff's Documents Request No. 18, defendants were requested to produce the source code for Facebook's website and "Groups application." Facebook's source code is relevant to the determination of whether Facebook infringes the asserted claims. In particular, the claims of the `629 Patent include a method and system for creating electronic communities for users with common interests to interact in. Defendants cannot dispute that the software Facebook uses for its website facilitates the creation of electronic communities, which Facebook refers to as "Groups," by its registered users. The issue is whether defendants' software operates to create the electronic communities in a manner which is within the scope of the claims of the `629 Patent. The courts recognize that a defendant's source code is relevant to such infringement analyses and have therefore found them to be discoverable. See Northern Telecom, Inc. v. Datapoint Corporation, 908 F.2d 931, 943 (Fed. Cir. 1990); American Video Graphics, L.P. v. Electronic Arts, Inc., 359 F.Supp. 2d 558, 560 (E.D. Tex. 2005); 3Com Corp. v. D-Link Systems, Inc., 2007 U.S. Dist. LEXIS 26540 (N.D. Cal. March 27, 2007). Not surprisingly, Facebook produced its source code in another case, ConnectU LLC v. Zuckerberg et al., involving a claim against it for theft of trade secrets. While it is apparent that from the manifestations of defendants' software ­ the part of the website that a user can see and interact with ­ that the software infringes claims of the `629 Patent, the actual software is hidden from view and a full understanding of how -11-

it operates can only be determined by viewing its source code. For example, claims 8, 16, 24, and 32 of the `629 Patent disclose a method and system for targeting product information to users of an electronically created community by comparing information about the user and information about the vendor. Defendants have publicly disclosed that they perform "targeting advertising" through a collaboration with Microsoft. See Exhibit I attached hereto. Defendants' website facilitates the "massive Facebook population"

being "targeted by age, gender, and DMA." Id. Plaintiff is entitled to defendants' source code to determine whether this targeted advertising is accomplished in a manner which is covered by claims 8, 16, 24, and 32 of the `629 Patent, and to confirm that the methods and systems used for operating the website are covered by the other claims in the `629 Patent. Furthermore, the source code is in the exclusive possession of defendants. Accordingly, defendants should be compelled to produce it. Plaintiff's Request No. 38 requested that Facebook produce its tax returns. Corporate tax returns are discoverable if relevant. Flaherty v. M.A. Bruder & Sons, Inc., 202 F.R.D. 137 (E.D. Pa. 2001); Barbine v. Keystone Quality Transp, 2004 U.S. Dist. LEXIS 11840 (E.D. Pa. June 7, 2004); Packer v. Hansen, 1999 U.S. Dist. LEXIS 17618 (E.D. Pa. Nov. 12, 1999). Facebook's tax returns are relevant to determining plaintiff's recoverable damages. In Request No. 55, Facebook was requested to produce documents in the ConnectU case. Sworn testimony, verified discovery responses and verified statements made by Facebook in that action relating to the conception, design and implementation of -12-

the Facebook website are certainly relevant to the issues of infringement and validity in this action. Any assertion of confidentiality of defendants relating to the pleadings, discovery and testimony provided by Facebook in that action is frivolous and not a good faith objection. Request No. 56 seeks documents relating to Facebook's relationship with Microsoft. These documents are relevant for at least two reasons. First, Microsoft is a source of revenue for the accused Facebook website, which is relevant to plainitff's determination of damages. Second, Facebook and Microsoft have an advertising partnership relating to the Facebook website, and the manner in which that advertising is done is relevant to the asserted claims including, but not limited to, claims 8, 16, 24, and 32 of the `629 Patent. Request No. 57 seeks documents relating to the methods used by defendants for its targeted advertising. For the reasons previously discussed, this is relevant to plaintiff's claim that defendants infringe claims 8, 16, 24, and 32 of the `629 Patent. C. Defendants Should be Compelled to Produce Their Database of Electronically Stored Information and All Other Such Information in its Native Form

Plaintiff seeks defendants' compliance with F ED.R.C IV.P. 34(b). Rule 34(b) permits plaintiff to specify the form(s) that electronically stored information ("ESI") is to be produced. Specifically, Rule 34(b) states: The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which -13-

electronically stored information is to be produced. **** Unless the parties otherwise agree, or the court otherwise orders: (I) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request; (ii) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and a party need not produce the same electronically stored information in more than one form.

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In its November 13, 2007 letter to defendants' counsel, plaintiff specified that "documents will be produced as they are maintained in the usual course of business and that electronic documents will be produced in their native format," i.e., in the format that they were stored during defendants usual course of business. Contrary to plaintiff's request, on November 16, 2007, defendants produced approximately 107,000 pages of documents in TIFF format. The TIFF files produced by defendants cannot be searched through electronic means unless they are converted to a searchable format at great cost and delay. Remarkably, the TIFF files are the result of defendants' conversion of the information from their native formats which, to a great extent, were searchable formats (e.g., e-mails, Word, etc.). In other words, defendants have converted searchable documents into non-searchable documents, and produced the non-searchable documents. -14-

Even if Facebook had a justified reason for not complying with plaintiff's request to produce the ESI in their native form, which it does not, it was and is still required by Rule 34(b) to "produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably useable." F ED.R.C IV.P. 34(b). The Advisory Notes to Rule 34(b) make clear that Facebook may not convert ESI from a searchable form to a form that is not searchable, such as TIFF images. [T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature. F ED.R.C IV.P. 34(b), 2006 Amendment, Advisory Committee's Note. Facebook's conversion of searchable ESI to non-searchable TIFF images does not comply with Rule 34(b). The courts have interpreted Rule 34 as require a producing party to produce ESI in their native file format. For example, in Nova Measuring Instruments Ltd v. Nanometrics, Inc., 417 F.Supp. 2d 1121 (N.D. Cal. 2006), the defendant in a patent infringement case produced "36,000 apparently unsearchable documents" in discovery. The court ordered the defendant to produce the documents "in their native file format, with original metadata...." Id. at 1123. The court reasoned that the defendant's discovery response "must be accompanied by the tools necessary to allow the receiving party to decipher the documents and discern which documents refer to which elements or -15-

aspects of the accused instrumentalities." Id. at 1122. In Verisign, Inc. Securities Litigation, 2004 U.S. Dist LEXIS 22467 (March 10, 2004), the defendant produced ESI in TIFF format. Since the ESI was not usually maintained in that format, the court ordered the defendant to convert the ESI back to their native format with original metadata and produce them to plaintiff. IV. CONCLUSION For the foregoing reasons, respectfully requests that this Court grant its motion to compel and order defendants to produce documents and to provide substantive answers to interrogatories. Respectfully submitted, Dated: November 25, 2007 /s/ Frederick A. Tecce Thomas J. Duffy, Esquire (PA ID # 34729) Patrick J. Kennan, Esquire (PA ID # 53775) Duffy & Keenan The Curtis Center, Suite 1150 Independence Square West Philadelphia, Pennsylvania 19106 [phone] [phone] (Fax) [e-mail] Frederick A. Tecce, Esquire M CS HEA\T ECCE, P.C. The Bell Atlantic Tower - 28 th Floor 1717 Arch Street Philadelphia, Pennsylvania 19103 [phone] [phone] (Fax) [e-mail] Counsel for plaintiff Cross Atlantic Capital Partners, Inc. -16-

CERTIFICATE OF SERVICE This is to hereby certify that on this 25 th day of November, 2007, I caused a true and correct copy of the foregoing Plaintiff=s Motion to Compel Full And Complete Interrogatory Responses And Documents to be served via this Court=s Electronic Filing ("ECF") System, upon the following:

Heidi L. Keefe, Esquire Mark R. Weinstein, Esquire Sam C. O'Rourke, Esquire White & Case LLP 3000 El Camino Real 5 Palo Alto Square, 9 th Floor Palo Alto, California 94306 Alfred W. Zaher, Esquire Dennis P. McCooe, Esquire Joel L. Dion, Esquire Blank Rome One Logan Square 130 North 18 th Street Philadelphia, PA 19103 Counsel for defendants Face Book, Inc. and Thefacebook, LLC

/s/ Frederick A. Tecce Frederick A. Tecce, Esquire