1 2 3 4 5 6 7 8 9 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlerner@durietangri.com LAURA E. MILLER (SBN 271713) lmiller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com 217 Leidesdorff Street San Francisco, CA 94111 Telephone: 415-362-6666 Facsimile: 415-236-6300 1/9/2019 Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN MATEO 12 13 14 15 16 17 18 19 20 SIX4THREE, LLC, a Delaware limited liability company, Plaintiff, v. FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; JAVIER OLIVAN, an individual; SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1-50, inclusive, Defendants. Case No. CIV 533328 Assigned for all purposes to Hon. V. Raymond Swope, Dept. 23 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL Date: Time: Dept: Judge: February 7, 2019 9:00 a.m. 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 21 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL / CASE NO. CIV 533328 1 I, Laura E. Miller, declare as follows: 2 1. I am an attorney at law licensed to practice in the state of California. I am an attorney 3 with the law firm of Durie Tangri LLP, counsel for Defendant Facebook, Inc. in this matter. I make this 4 Declaration from personal knowledge, and if called to testify, I could and would testify competently 5 thereto. 6 7 8 9 10 11 12 13 14 15 2. Attached hereto as Exhibit 1 is a true and correct copy of pages excerpted from the Reporter’s Transcript of Proceeding in this matter dated November 30, 2018. 3. Attached hereto as Exhibit 2 is a true and correct copy of documents produced in this matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG001353. The unredacted version of this document has been lodged provisionally under seal. 4. Attached hereto as Exhibit 3 is a true and correct copy of documents produced in this matter by Plaintiff Six4Three bearing Bates numbers SIX4THREE000015915-18. 5. Attached hereto as Exhibit 4 is a true and correct copy of pages excerpted from the Reporter’s Transcript of Proceedings in this matter on December 7, 2018. 6. Attached hereto as Exhibit 5 is a true and correct copy of pages excerpted from the 16 transcript of the deposition of Thomas Scaramellino taken in this matter on April 21, 2017. The 17 unredacted version of this document has been lodged provisionally under seal. 18 7. Attached hereto as Exhibit 6 is a true and correct copy of documents produced in this 19 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG001308. 20 Private information, such as emails, addresses, and telephone numbers, has been redacted. 21 8. Attached hereto as Exhibit 7 is a true and correct copy of documents produced in this 22 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG002172. 23 Private information, such as emails, addresses, and telephone numbers, has been redacted. 24 9. Attached hereto as Exhibit 8 is a true and correct copy of documents produced in this 25 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG002165. 26 Private information, such as emails, addresses, and telephone numbers, has been redacted. 27 28 1 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL / CASE NO. CIV 533328 1 10. Attached hereto as Exhibit 9 is a true and correct copy of the Declaration of David S. 2 Godkin in Opposition to Facebook’s Motions to Compel with Exhibit A Redacted for Public Filing, filed 3 in this matter on June 19, 2017. 4 11. Attached hereto as Exhibit 10 is a true and correct copy of the Order on Defendant’s 5 Motion to Compel Production of Withheld Scaramellino Communications issued in this matter on July 6 14, 2017. 7 12. Attached hereto as Exhibit 11 is a true and correct copy of the Order on Six4Three’s 8 Motion for Protective Order and Facebook’s Motion for Protective Order issued in this matter on October 9 25, 2016. 10 13. Attached hereto as Exhibit 12 is a true and correct copy of documents produced in this 11 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG000152. 12 The unredacted version of this document has been lodged provisionally under seal. 13 14. Attached hereto as Exhibit 13 is a true and correct copy of documents produced in this 14 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG000154. 15 The unredacted version of this document has been lodged provisionally under seal. 16 15. Attached hereto as Exhibit 14 is a true and correct copy of documents produced in this 17 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG000156. 18 The unredacted version of this document has been lodged provisionally under seal. 19 16. Attached hereto as Exhibit 15 is a true and correct copy of documents produced in this 20 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG000716. 21 Private information, such as emails, addresses, and telephone numbers, has been redacted. 22 17. Attached hereto as Exhibit 16 is a true and correct copy of documents produced in this 23 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG000425- 24 36. The unredacted version of this document has been lodged provisionally under seal. 25 18. Attached hereto as Exhibit 17 is a true and correct copy of documents produced in this 26 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG007208. 27 Private information, such as emails, addresses, and telephone numbers, has been redacted. 28 2 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL / CASE NO. CIV 533328 1 19. Attached hereto as Exhibit 18 is a true and correct copy of documents produced in this 2 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG006394. 3 Private information, such as emails, addresses, and telephone numbers, has been redacted. 4 20. Attached hereto as Exhibit 19 is a true and correct copy of documents produced in this 5 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG006403. 6 Private information, such as emails, addresses, and telephone numbers, has been redacted. 7 21. Attached hereto as Exhibit 20 is a true and correct copy of documents produced in this 8 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG002164. 9 Private information, such as emails, addresses, and telephone numbers, has been redacted. 10 11 12 22. Attached hereto as Exhibit 21 is a true and correct copy of documents produced in this matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG002165. 23. Attached hereto as Exhibit 22 is a true and correct copy of documents produced in this 13 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG000149. 14 Private information, such as emails, addresses, and telephone numbers, has been redacted. 15 24. Attached hereto as Exhibit 23 is a true and correct copy of documents produced in this 16 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG000855. 17 Private information, such as emails, addresses, and telephone numbers, has been redacted. 18 25. Attached hereto as Exhibit 24 is a true and correct copy of documents produced in this 19 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG001330. 20 The unredacted version of this document has been lodged provisionally under seal. 21 26. Attached hereto as Exhibit 25 is a true and correct copy of documents produced in this 22 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG001357. 23 The unredacted version of this document has been lodged provisionally under seal. 24 27. Attached hereto as Exhibit 26 is a true and correct copy of documents produced in this 25 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG001825. 26 The unredacted version of this document has been lodged provisionally under seal. 27 28 3 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL / CASE NO. CIV 533328 1 28. Attached hereto as Exhibit 27 is a true and correct copy of documents produced in this 2 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG001860. 3 Private information, such as emails, addresses, and telephone numbers, has been redacted. 4 29. Attached hereto as Exhibit 28 is a true and correct copy of documents produced in this 5 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG007476- 6 7906. Private information, such as emails, addresses, and telephone numbers, has been redacted. 7 30. Attached hereto as Exhibit 29 is a true and correct copy of documents produced in this 8 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG006427. 9 Private information, such as emails, addresses, and telephone numbers, has been redacted. 10 31. Attached hereto as Exhibit 30 is a true and correct copy of documents produced in this 11 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG006428. 12 Private information, such as emails, addresses, and telephone numbers, has been redacted. 13 32. Attached hereto as Exhibit 31 is a true and correct copy of documents produced in this 14 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG002172. 15 Private information, such as emails, addresses, and telephone numbers, has been redacted. 16 33. Attached hereto as Exhibit 32 is a true and correct copy of documents produced in this 17 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG000509. 18 The unredacted version of this document has been lodged provisionally under seal. 19 20 21 22 23 24 25 26 34. Attached hereto as Exhibit 33 is a true and correct copy of the Notice of Deposition of Theodore Kramer and Request for Production of Documents served on November 30, 2018. 35. Attached hereto as Exhibit 34 is a true and correct copy of the Notice of Deposition of Thomas Scaramellino and Request for Production of Documents served on November 30, 2018. 36. Attached hereto as Exhibit 35 is a true and correct copy of the Notice of Deposition of David Godkin and Request for Production of Documents served on November 30, 2018. 37. Attached hereto as Exhibit 36 is a true and correct copy of the Notice of Deposition of Stuart Gross and Request for Production of Documents served on November 30, 2018. 27 28 4 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL / CASE NO. CIV 533328 1 38. Attached hereto as Exhibit 37 is a true and correct copy of documents produced in this 2 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG006440. 3 Private information, such as emails, addresses, and telephone numbers, has been redacted. 4 39. Attached hereto as Exhibit 38 is a true and correct copy of documents produced in this 5 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG000122- 6 140. Private information, such as emails, addresses, and telephone numbers, has been redacted. 7 40. Attached hereto as Exhibit 39 is a true and correct copy of the Objections and Responses 8 to Facebook’s the Notice of Deposition with Request for Production of Documents to Theodore Kramer 9 served on December 2, 2018. 10 41. Attached hereto as Exhibit 40 is a true and correct copy of the Objections and Responses 11 to Facebook’s the Notice of Deposition with Request for Production of Documents to Thomas 12 Scaramellino served on December 2, 2018. 13 42. Attached hereto as Exhibit 41 is a true and correct copy of the Objections and Responses 14 to Facebook’s the Notice of Deposition with Request for Production of Documents to David S. Godkin 15 served on December 2, 2018. 16 43. Attached hereto as Exhibit 42 is a true and correct copy of the Objections and Responses 17 to Facebook’s the Notice of Deposition with Request for Production of Documents to Stuart Gross served 18 on December 2, 2018. 19 20 21 22 23 44. Attached hereto as Exhibit 43 is a true and correct copy of pages excerpted from the Reporter’s Transcript of Proceedings in this matter on December 17, 2018. 45. Attached hereto as Exhibit 44 is a true and correct copy of Case Management Order No. 17, issued in this matter on December 17, 2018. 46. Attached hereto as Exhibit 45 is a true and correct copy of the Declaration of Theodore 24 Kramer in in (sic) Support of Plaintiff’s Brief in Response to November 20, 2018 Order, filed in this 25 matter on November 26, 2018. 26 47. Attached hereto as Exhibit 46 is a true and correct copy of Declaration of David S. 27 Godkin in Support of Plaintiff’s Brief in Response to November 30, 2018 Order filed in this matter on 28 November 26, 2018. 5 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL / CASE NO. CIV 533328 1 48. Attached hereto as Exhibit 47 is a true and correct copy of the Declaration of Stuart G. 2 Gross in Support of Plaintiff’s Brief in Response to November 30, 2018 Order filed in this matter on 3 November 26, 2018. 4 49. Attached hereto as Exhibit 48 is a true and correct copy of documents produced in this 5 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG006401. 6 Private information, such as emails, addresses, and telephone numbers, has been redacted. 7 50. Attached hereto as Exhibit 49 is a true and correct copy of the Declaration of Theodore 8 Kramer Authenticating Exhibits to Declaration of Theodore Kramer in Support of Plaintiff’s Brief in 9 Response to November 20, 2018 Order filed in this matter on November 30, 2018. 10 51. Attached hereto as Exhibit 50 is a true and correct copy of documents produced in this 11 matter by Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, bearing Bates numbers BG003750. 12 The unredacted version of this document has been lodged provisionally under seal. 13 14 15 16 17 18 19 52. Mr. Scaramellino, Mr. Godkin, and Mr. Gross have not served individual objections to the discovery requests or deposition notices. 53. Facebook met and conferred with Six4Three on December 4 and 5, but Six4Three refused to engage regarding its privilege objection. I declare under penalty of perjury under the laws of the State of California that the foregoing is to the best of my knowledge and belief true and correct. Executed on January 8, 2019 in San Francisco, California. 20 21 LAURA E. MILLER 22 23 24 25 26 27 28 6 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL / CASE NO. CIV 533328 PROOF OF SERVICE 1 2 I am a citizen of the United States and resident of the State of California. I am employed in San 3 Francisco County, State of California, in the office of a member of the bar of this Court, at whose 4 direction the service was made. I am over the age of eighteen years, and not a party to the within action. 5 My business address is 217 Leidesdorff Street, San Francisco, CA 94111. 6 On January 8, 2019, I served the following documents in the manner described below: 7 8 9 10 11 12 13 14 15 16 17 18 19 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL X BY ELECTRONIC SERVICE: By electronically mailing a true and correct copy through Durie Tangri’s electronic mail system from cortega@durietangri.com to the email addresses set forth below. On the following part(ies) in this action: Stuart G. Gross GROSS & KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94111 Telephone: 415-671-4628 sgross@grosskleinlaw.com David S. Godkin James Kruzer BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, MA 02210 Telephone: 617-307-6100 godkin@birnbaumgodkin.com kruzer@birnbaumgodkin.com 20 Attorneys for Plaintiff Six4Three, LLC 21 24 Donald P. Sullivan Wilson Elser 525 Market Street, 17th Floor San Francisco, CA 94105 donald.sullivan@wilsonelser.com Joyce.Vialpando@wilsonelser.com Dea.Palumbo@wilsonelser.com 25 Attorney for Gross & Klein LLP 22 23 Jack Russo Christopher Sargent ComputerLaw Group, LLP 401 Florence Street Palo Alto, CA 94301 jrusso@computerlaw.com csargent@computerlaw.com ecf@computerlaw.com Attorney for Theodore Kramer and Thomas Scaramellino (individual capacities) Steven J. Bolotin Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 sbolotin@morrisonmahoney.com Llombard@morrisonmahoney.com Thomas P Mazzucco Murphy Pearson Bradley & Feeney 88 Kearny St, 10th Floor San Francisco, CA 94108 TMazzucco@MPBF.com Attorney for Birnbaum & Godkin, LLP 26 27 28 7 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL / CASE NO. CIV 533328 1 2 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January 8, 2019, at San Francisco, California. 3 4 Christina Ortega 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S MOTION TO OPEN DISCOVERY AND TO COMPEL / CASE NO. CIV 533328 EXHIBIT 1 1 1 IN THE SUPERIOR COURTS OF THE STATE OF CALIFORNIA 2 IN AND FOR THE COUNTY OF SAN MATEO 3 ---O0O--- 4 5 SIX4THREE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, 6 PLAINTIFFS, 7 VS. CASE NO. CIV533328 8 9 FACEBOOK, INC., A DELAWARE CORPORATION, ET AL., 10 DEFENDANTS. 11 __________________________________/ 12 REPORTER'S TRANSCRIPT OF PROCEEDINGS 13 BEFORE: HONORABLE V. RAYMOND SWOPE, JUDGE 14 DEPARTMENT 23 15 NOVEMBER 30, 2018 16 17 18 A P P E A R A N C E S 19 FOR THE PLAINTIFFS: STUART G. GROSS ATTORNEY AT LAW 20 DAVID S. GODKIN ATTORNEY AT LAW 21 22 FOR THE DEFENDANTS: JOSH H. LERNER ATTORNEY AT LAW 23 SONAL N. MEHTA ATTORNEY AT LAW 24 25 26 REPORTED BY: GERALDINE VANDEVELD, C.S.R. 8634 GOVERNMENT CODE SECTION 69954(D) RESTRICTS COPYING THIS TRANSCRIPT 36 1 2 BURIED. MR. GODKIN: YOUR HONOR, WHAT I MEAN BY THAT IS THE 3 REQUEST THAT THEY ARE MAKING CERTAINLY FOR THE LAPTOP, THE 4 DROPBOX AND ALL THAT IS PERFECTLY APPROPRIATE. 5 DOCUMENTS THAT WERE ATTACHMENTS TO MR. KRAMER'S EMAIL, THOSE 6 CAN BE PRODUCED PROMPTLY. 7 FOR THE THREE THAT'S SIMPLE. BUT THE REST OF THEIR REQUESTS ARE IN OUR VIEW 8 OVERLY BROAD. THEY ARE ASKING FOR -- FIRST OF ALL, THERE HAVE 9 BEEN NO COMMUNICATIONS WITH THIRD PARTIES REGARDING FACEBOOK'S 10 CONFIDENTIAL INFORMATION. 11 ASKING FOR. 12 THAT'S ONE OF THE THINGS THEY ARE ONE OF THEIR REQUESTS IS SO BROAD IT LITERALLY 13 COVERS EVERY COMMUNICATION BETWEEN AND AMONG ALL OF THE 14 LAWYERS REPRESENTING THE PLAINTIFF IN THIS CASE WHICH IS -- 15 INCLUDES ATTORNEY/CLIENT PRIVILEGE MATERIALS, WORK PRODUCT 16 PRIVILEGE MATERIALS. 17 OF MATERIAL. 18 ORDER PRODUCTION OF DOCUMENTS THAT ARE PRIVILEGED, WE WOULD 19 RESPECTFULLY REQUEST A FULL BRIEFING ON WHETHER OR NOT THAT'S 20 APPROPRIATE. 21 COURT IS INCLINED TO ORDER RELIEF OF THAT BREATH, IT'S AN 22 ISSUE OF SUCH IMPORTANCE THAT WE WOULD -- WE WOULD LIKE AN 23 OPPORTUNITY TO FULLY BRIEF IT BEFORE IT HAPPENS. 24 IT'S A -- NUMBER ONE, AN ENORMOUS AMOUNT BUT, NUMBER TWO, IF THE COURT IS INCLINED TO WE BELIEVE IT IS NOT. BUT IF THAT -- IF THE THE REQUEST FOR IMAGING OF ATTORNEYS' LAPTOPS RAISES 25 ENORMOUS PROBLEMS. FIRST OF ALL, WE ALL HAVE MULTIPLE CLIENTS 26 WHO ARE NOT INVOLVED IN THIS LITIGATION. WE ALL HAVE MULTIPLE 70 1 STATE OF CALIFORNIA 2 3 4 5 6 ) ) COUNTY OF SAN MATEO SS. ) I, GERALDINE VANDEVELD, OFFICIAL COURT REPORTER, COUNTY OF SAN MATEO, STATE OF CALIFORNIA, DO HEREBY CERTIFY: THAT THE FOREGOING CONTAINS A TRUE, FULL AND CORRECT 7 TRANSCRIPT OF THE PROCEEDINGS GIVEN AND HAD IN THE 8 WITHIN-ENTITLED MATTER THAT WERE REPORTED BY ME AT THE TIME 9 AND PLACE MENTIONED AND THEREAFTER TRANSCRIBED BY ME OR AT MY 10 DIRECTION INTO LONGHAND TYPEWRITING AND THAT THE SAME IS A 11 CORRECT TRANSCRIPT OF THE PROCEEDINGS. 12 DATED: DECEMBER 3, 2018 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GERALDINE VANDEVELD, C.S.R. #8634 OFFICIAL COURT REPORTER [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 2 Sent time: 03 IS 2018 07:06:39 To. mam-m; @iwmgw?gmgm? Subj ect: RE: Extensive evidence regarding Facebook?s treatment of friend data and user privacy Dear a i Thank you for your email and my apologies for the late reply to it. Your correspondence has now been passed on to the investigation team directly dealing with the Cambridge Analytica/FB file. They will be in touch shortly Best regards, From: David Godkin Sent: 22 March 2018 16:24 To: Subjec ensrve evidence regarding Facebook's treatment of friend data and user privacy Commissioner Denham and Staff. My name is David Godkin. My ?rm has obtained extensive discovery of communications between Zuckerberg and numerous other Fac ebook executives and employees regarding ac ebook's treatment of user data and third party developers from 2007 to 2015. I believe the information we have tmcovered is highly relevant to the Cambridge Analytica investigation and demonstrates clearly that Facebook \iolated the privacy of UK citizens and its prior settlement with the FTC. I have attempted to summarize the exidence below. This summary does not do the wealth of evidence we have obtained justice, which is why I'm hoping we can speak with your of?ce to determine if there is an appropriate mechanism for your team to evaluate the exidence yourseh?es. I look forward to hearing from you. Regards, David As you can see: there is a lot here: and it would take months or even years for ICO to obtain discovery of this information from Facebook. We hope to identi?' an appropriate mechanism for your team to access it and determine its relevance to your current e?orts. BG001353 Sent from my iPhone EXHIBIT 3 Godkin David ''''.. From: Sent: To: Cc; Subject: Thomas Scaramellino Thursday, August 3I,20t7 12:50 PM Hadi Partovi David Godkin;ali@code.org; hadi@code'org Re: FW: Facebook Platform Anti-Competition Lawsuit - Not a Level Playing tield That's exactly right, Your response demonstrates preclsely what the complaint alleges: this is a repeated pattern of behavior on Facebook's part, particularly as regards Platform, This was yet another bait and switch in a long line of bait and switches upon whlch Facebook has built lts business. Plenty of other folks like you will be testifying in this case to demonstrate a broad pattern of anti-competitive and deceptive behavior, I can talk up until about 4pm pt today or before 2pm pt tmrw, lf I don't pick up, leave a vm and I'll callyou right back. On Thu, Aug 31, 2017 at 8:55 AM, Hadi Partovi wrote: Our experience predates any of this, and was from 2007-2009, with a different set of FB Platform capabilities that were removed, pulling the rug out from under developers in a similar way but different circumstances, I wouldn't do a voluntary subpoena, I'll give you a call later today to explain a bit further On Thu, Aug 31, 2OL7 at7:24 AuThomas Scaramellíno i wrote: Hi guys, Tom Scaramellino again from Hackleyl12.Afialy3o. I am helping to drive this lìtigation forward. ln 2013, I agreed to invest $250k into a cãmpany founded by a formór 82.0 employee just to give him his first chance, The company had to shut down due to Facebookis anti-competitive behavior before it could even get off the ground. The company sued in 2015, and I have been assisting in the iitigation for some time now. My primary goal is to-make sure theJullstory of Facebook platform is eventually brought into the public light, The story of Facebook Platform includes Mark's decision to represent platform as a leveicompetitive playing field even though he had no intention of managing it as one, Rather, even early on platform was used to iain leverage óver any potentiál competitors by forcing them to sell to Facebook or risk Facebook shutting them down. . . : i i The story of Facebook Platform also includes all of the internal discussions around Mark's decision in2012 to shut down acôess to the social graph and Newsfeed APls and cannibalize them for FB's mobile advertising business. ÈaceOook buílt its largest rèvenue source by holding hostago data that tens of thousands of companies relied upon and te¡ing them they could either shut down or buy a ton of advertising, Facebook did this entirely. arbitrarily, selecting which cômõanies it wóuld provide special access to data based on how much advertising they bought or pre-existing relationships they håd. Startups and smaller businesses were forced to shut down because no one at Facebook would even talk ó theni, What is worse, Mark knew in 2a12 he was going to shut down access to the social graph and, knowing that those investments would go to zero, Finally, the story of Facebook Platform includes Mark's docision in 2013 and 2014 to lie to the public and developers abouiwhy Facébook was shutting down the social graph, which it did for purely comp.etitive reasons in order to Oominate'tfle mobile app space (ñote that today, otñer than Google or Snapchat, the top 1O downloaded apps are apps òwneO by Facebook¡, Ouring thié time, Facebook began considering virtually every type of app you can imagine to be T SIX4THREEOOOO l 591 5 competitive, even apps that have very little to do with Facebook's core product, Facebook then decided to conceal shutting down the social graph and fold it into another unrelated initiative to make it easier to say publicly that the decision was about giving users more control. ln fact, Graph API 2.0 made it impossible for well over a billion people (now 2 billionl) to control how their data is accessed and shared by companies other than Facebook. We need a public discussion around whether one of the most powerful companies in the world can engage in this type of bait and switch conduct to the detriment of billions of consumers and tens of thousands of businesses. We need to have that discussion with all of Facebook's internal information at hand, which will happen once the case goes to trial. And, most importantly, we need to set a precedent that makes it much easier to combat any kind of predatory and deceptive behavior liko this in the future, Otherwise the same movie will play over and over again until the only apps on your phone are made by one of the world's five largest companies. I understand you are close with Mark and Sheryl, and I apologize for putting you in this position, We would like to take your deposition to obtain your testimony under oath, lt will take one day. Please let us know if you will accept service of a subpoena voluntarlly. We will of course work with you to find a date and location that is convenient for you and for Facebook's counsel, who will have an opportunlty to question you as well. lf you want to talk, l'm at RrsD,lsr¿Iò Tom On Wed, Aug 23, 2017 at 1:09 PM, David Godkin wrote: I See below From: Ali Partovi [mailto: ali@partovi.orql Sent: Wednesday, August23,2017 4:07 PM To: Hadi Partovi; Davld Godkin Cc: hadi@csds.org; ali@code.orq Subject: Re: Facebook Platform Anti-Competition Lawsuit - Not a Level Playing Field , I I have two tidbits to add: 'our startup was named "iLike" and our logo was a thumbs-up button, which users could click to designate that they liked a piece of content, (This is public knowledge) -tnã with Facebook's corp dev team, they suggested they might buy our company. Then they added, course, I asked "why not?" They replied, "Because we could also just shut you down if we wanted to." Note, this was all after Facebook had created a new category called "Great Apps" and designated ilike as one o" those selected for extra benefits and privileged treatment on the FB platform, Ati On Wed, Aug 23, 2017 al3:48 PM Hadi Partovi wrote: wow - somebody is finally taking real action on this, good for you :-) 2 SIX4THREEOOOOI59l6 Confidentially, Ali and I agree with a lot of this, and it was a very emotional and trying experience to bet our company on the Facebook Platform, only to see the platform turn into quicksand and see our investment lose its value overnight, However, given our personal relationships with Sheryl Sandberg and Mark Zuckerberg, I'm not sure we'd want to be part of a formal litigation effort. We'd have much more to lose than to gain, On Wed, Aug 23, 2017 at 12:36 PM, David Godkin wrote: Hadi, Ali, My firm represents a small software developer that sued Facebook in April 2015 for its anti-competitive "bait and switch" behavior regarding Facebook Platform and Graph APl. I'm hoping you can review the attached operative complaint, and we can setup a brief call in the coming weeks, ln particular, we understand that you have experience with Facebook Platform and would be curious to see if you would be opon to taking an interview regarding your experience. Other developers and academics in a position similar to yours have done this so you would be in good cornpany, We are most interested in your experience of Facebook having provided or failed to provide a level competitive playing field, both relative to iLike's competitors and also relatlve to Facebook itself, Our complaint alleges that in 2012 Zucksrberg decided to shut down a wide range of different categories of apps simply because they were competitive with future Facebook products even though Facebook represented for over 7 years it would malntain a level competitive playing tield (though it failed to do so ropeatedly during this time). The oorrplaint also alleges that Facebook began enforcing competitive data restrictions in 2012 and 2013 and then shut the entire social graph down in 2014 and 2015 except to somç whiteliçted partners, who obtained an lmmense competitíve advantage in their various markets (Tinder for instance got a huge advantage in the dating app space because of its special data access from Facebook), Then it goes on to allege that Facebook fabricated a story about user trust and privacy to mask its real motivations around shutting down competition. We have uncovered evidence supporting these claims and believe Facebook's conduct also includes competitive restrictíons against over 40,000 software applications. Specifically, we allege that Facebook's conduct violates tort, contract, false advertising, fraud and anti-competition laws in California, We allege that Facebook can't make representations that induce developers to þuild applications using Facebook's social graph, and then whenever an app gets big enough or competitive enough, Facebook either buys it or destroys it and releasos its own ldenticalfeatures, We allege that such conduct is unlawful and we intend to prove that at trial to set a precedent to prevent this kind of "bait and switch" from happening again, There are tens of thousands of apps that have suffered irreparable damage because of this behavior. 3 SIX4THREEOOOOl5917 The litigatlon has a website at FacebooksAppEconomy,com - I'd encourage you to share with others and check it out yourself. lf we don't do something about this then it will þecome increasingly harder for startups to compete. The law already exists to prevent this "bait and switch" behavior - someone just needs to stand up and defend software companies against Facebook's illegal tactics, I know historically you have had very close relationships with Facebook and admire many of its people, My client does too, and this is why it's even more important to stand up for the ability of startups to meaningfully compete going fonruard, My client fears we are going down a dangerous path here ln terms of consolidation in a wide range of consumer software markets, I hope you agree and we have the chance to discuss with you on a brief call to see if this is something you can get behind, Sincerely yours, David Godkin Birnbaum & Godkin, LLP 4 SIX4THREEOOOOl59l8 EXHIBIT 4 1 1 IN THE SUPERIOR COURTS OF THE STATE OF CALIFORNIA 2 IN AND FOR THE COUNTY OF SAN MATEO 3 ---O0O--- 4 5 SIX4THREE LLC, 6 7 PLAINTIFFS, VS. CASE NO. CIV533328 8 FACEBOOK, INC., ET AL., 9 DEFENDANTS. 10 __________________________________/ 11 REPORTER'S TRANSCRIPT OF PROCEEDINGS 12 13 BEFORE: HONORABLE V. RAYMOND SWOPE, JUDGE 14 DEPARTMENT 23 15 DECEMBER 7, 2018 16 17 A P P E A R A N C E S 18 19 FOR THE PLAINTIFFS: STUART G. GROSS ATTORNEY AT LAW 20 DAVID S. GODKIN ATTORNEY AT LAW 21 22 FOR THE DEFENDANTS: JOSH H. LERNER ATTORNEY AT LAW 23 SONAL N. MEHTA ATTORNEY AT LAW 24 25 26 REPORTED BY: GERALDINE VANDEVELD, C.S.R. 8634 GOVERNMENT CODE SECTION 69954(D) RESTRICTS COPYING THIS TRANSCRIPT 10 1 EVENTS IS A LITTLE DIFFERENT THAN DESCRIBED, AS BEST AS I 2 UNDERSTAND THEM. 3 MR. KRAMER WAS SERVED WITH A PARLIAMENTARY ORDER THAT THEN 4 RESULTED IN A CONTEMPT NOTICE TO HIM THAT THEN RESULTED IN HIM 5 TURNING INFORMATION OVER. 6 FACTS. 7 8 9 BUT AT THE END OF THE DAY YOU'RE RIGHT THERE'S NO DISPUTE AS TO THOSE NOW, HOW DO WE SOLVE THE PROBLEM? IS A SOLUTION? I'M ALL EARS. THE COURT: RIGHT. I MEAN IF THERE I'M TRYING TO FIGURE IT OUT. WELL, I BELIEVE, IF I'M NOT 10 MISTAKEN, FACEBOOK HAS INQUIRED AS TO HOW ALL OF THESE THINGS 11 CULMINATED. 12 INFORMATION BEGIN? 13 THAT'S WHAT THIS COURT WANTS TO KNOW. 14 WHEN DID THE PLAN TO DISCLOSE THIS CONFIDENTIAL THAT'S WHAT FACEBOOK IS INQUIRING ON. MR. RUSSO: RIGHT. AND I WOULD SAY, YOUR HONOR, 15 THAT THERE WAS NO PLAN. 16 ME THAT IF THEY WERE SUBJECT -- OR NOT THEY -- MR. KRAMER WAS 17 SUBJECT TO CIRCUMSTANCES THAT TOOK HIM COMPLETELY BY SURPRISE. 18 I KNOW THAT'S DISPUTED. 19 TYPE OF INQUIRY HERE. 20 ASSUMING YOUR HONOR ALLOWS IT WHERE HE IS HEARD AND HE 21 EXPLAINS EXACTLY WHAT HAPPENS UNDER OATH. 22 I BELIEVE WHAT MY CLIENTS HAVE TOLD AND I KNOW WE'RE GOING TO HAVE SOME MAYBE, IN FACT, A SEPARATE TRIAL I THINK HE'S ALREADY DONE THAT IN ONE DECLARATION 23 THAT'S BEEN SUBMITTED TO YOU. I KNOW THAT I HAVE 24 CROSS-EXAMINED HIM ABOUT THAT. 25 CIRCUMSTANCES THAT WERE BEYOND HIS CONTROL. 26 HONOR WILL MAKE THAT DETERMINATION. AND HE CREDIBLY INFORMS ME OF I THINK YOUR I HAVEN'T ASKED COUNSEL 11 1 FOR FACEBOOK WHAT IS THE END GAME HERE? 2 OF THIS? 3 MISTAKE OR A NEGLIGENT MISTAKE OR IS IT SOME BROADER PURPOSE? 4 I DON'T KNOW, BUT I DO KNOW AS WE SIT HERE TODAY WE ARE FULLY 5 COOPERATIVE. 6 WE WANT TO FIGURE OUT A WAY TO GET THERE QUICKLY WITHOUT 7 SPENDING A FORTUNE IN TIME AND MONEY. 8 THOSE THINGS. 9 WHAT IS THE PURPOSE IS IT TO PUNISH MR. KRAMER FOR AN INADVERTENT WE WANT TO FIGURE OUT WHAT A SOLUTION IS. THE COURT: I UNDERSTAND. AND NO QUESTION ABOUT ALL WITH REGARD TO THE 10 FORENSIC EXAMINER AND THE LACK OF INDEPENDENCE, THE COURT MAY 11 HAVE A SOLUTION TO THAT ISSUE BECAUSE I BELIEVE THAT IF THERE 12 IS AN INDEPENDENT FORENSIC EXAMINER, THAT EXAMINER CAN AT THE 13 DIRECTION OF THE COURT OR STIPULATION OF THE PARTIES GLEAN OUT 14 THE CONFIDENTIAL OR PRIVATE COMMUNICATIONS THAT HAVE NOTHING 15 TO DO WITH THIS CASE. 16 UNTIL FURTHER ORDER OF THE COURT. 17 THAT WOULD BE SATISFACTORY TO YOU OR YOUR CLIENTS? 18 MR. RUSSO: AND, ALSO, RETAIN THAT INFORMATION WOULD THAT BE SOMETHING I'M SURE, YOUR HONOR, SO LONG THE 19 APPROPRIATE CONSTRAINTS RESPECTING THE ATTORNEY/CLIENT, 20 ATTORNEY WORK PRODUCT SECRET INFORMATION, SPOUSAL PRIVILEGE 21 INFORMATION, PRIVATE INFORMATION. 22 FACTORED IN, ABSOLUTELY. 23 THE COURT: ALL RIGHT. IF ALL THOSE THINGS ARE MS. MEHTA, YOU HEARD MY 24 QUESTIONS TO MR. RUSSO CONCERNING THE USE OF THE FORENSIC 25 EXAMINER AND ALSO THE PRIVACY AND THE ATTORNEY/CLIENT -- 26 ATTORNEY/CLIENT WORK PRODUCT CONCERNS THAT HE HAS. 47 1 THE CLERK: 2 THE COURT: THANK YOU. 3 Q. GOOD MORNING, MR. SCARAMELLINO. 4 A. GOOD MORNING, YOUR HONOR. 5 Q. ARE YOU ON THE LEGAL TEAM FOR THE SAN FRANCISCO 6 ACTION THAT WAS FILED BY MR. GROSS AND MR. KRAMER FOR NOVEMBER 7 OF 2018? 8 A. I BELIEVE SO, YOUR HONOR. 9 Q. ARE YOU A MEMBER OF THE CALIFORNIA BAR? 10 A. NO, SIR. 11 Q. THERE HAVE BEEN REPRESENTATIONS THAT YOU HAVE BEEN. NO, YOUR HONOR. 12 HAVE YOU -- ARE YOU NOW A MEMBER OF ANY BAR WITHIN THE UNITED 13 STATES? 14 A. 15 16 NO, YOUR HONOR. MR. RUSSO: TO BE CLEAR, I REPRESENTED HE PASSED THE EXAMS AND IS AWAITING ADMITTANCE. 17 THE COURT: 18 Q. DID YOU PASS THE EXAMS IN CALIFORNIA? 19 A. I PASSED THE CALIFORNIA BAR, YOUR HONOR. 20 Q. YOU DID? 21 A. YES. 22 Q. OKAY. 23 A. EARLIER THIS YEAR. 24 Q. THE FEBRUARY BAR? 25 A. YES, SIR. 26 Q. OKAY. WHEN? THAT'S THE FEBRUARY 2018 BAR, CORRECT? 48 1 A. 2 YES, YOUR HONOR. THE COURT: ALL RIGHT. AS I SAID, WE'VE BEEN GOING 3 FOR A WHILE. 4 MR. SCARAMELLINO, BUT I NEED TO GIVE THE COURT REPORTER A 5 BREAK. 6 ABOUT A HALF HOUR, AND WE WILL RECONVENE AT 11:10. 7 THANK YOU VERY MUCH, EVERYONE. 8 MINUTES AFTER 11:00. 9 I DO HAVE A FEW MORE QUESTIONS OF YOU, SO WHAT WE'RE GOING TO DO. WE'RE GOING TO BREAK FOR ALL RIGHT. COURT IS IN RECESS UNTIL TEN (WHEREUPON, A RECESS WAS TAKEN.) 10 THE COURT: GOOD MORNING ONCE AGAIN, EVERYONE. THE 11 RECORD SHALL REFLECT THAT ALL COUNSEL ARE PRESENT AT THE 12 COUNSEL TABLE AND ALSO IN THE WITNESS BOX. 13 HIS COUNSEL -- WITH HIS CLIENTS RATHER IN THE JURY BOX SO THAT 14 THE COURT REPORTER CAN HEAR MR. RUSSO AND HIS CLIENTS BETTER. MR. RUSSO IS WITH 15 I WAS IN THE MIDST OF ASKING SOME QUESTIONS OF 16 MR. SCARAMELLINO BEFORE WE BROKE, AND I HAVE A FEW MORE. 17 REMIND YOU, MR. SCARAMELLINO, THAT YOU REMAIN UNDER OATH. 18 Q. I IN YOUR DECLARATION THAT WAS FILED ON JUNE 20TH, 19 2017 -- I'M SORRY -- IN MR. GODKIN'S DECLARATION, HE SAID THAT 20 YOU BEGAN PERFORMING WORK AS HIS LAW CLERK IN THIS LITIGATION 21 AS OF SOME TIME IN JUNE OF 2017; IS THAT CORRECT? 22 A. I SERVED AS A LAW CLERK IN SOMETHING OF THE CAPACITY 23 AS A LEGAL INTERN, YOUR HONOR, FOR MR. GODKIN'S FIRM. 24 CANNOT TELL YOU THAT THAT TIMEFRAME IS ACCURATE THOUGH. 25 BELIEVE IT MAY HAVE STARTED PRIOR TO THAT TIMEFRAME. 26 Q. OKAY. I I HIS DECLARATION WAS DATED JUNE 20TH, 2017. 49 1 AND HE SAID THAT YOU WERE DOING WORK WITH HIS LAW FIRM ON THIS 2 LITIGATION. 3 A. CORRECT, YOUR HONOR. IF I MAY CLARIFY, I BELIEVE 4 THAT AT THE INCEPTION OF THIS LITIGATION, MR. GODKIN AND I 5 CAME TO AN AGREEMENT, WHICH I BELIEVE WAS MEMORIALIZED IN 6 WRITING THAT IN ORDER TO MANAGE THE COST OF THIS LITIGATION AS 7 WELL AS TO ADDRESS THE LIMITED RESOURCES OF BIRNBAUM & GODKIN 8 IN LITIGATION AGAINST FACEBOOK WHAT WE PERCEIVED TO BE A HIGH 9 STATES ISSUE, THAT IT WOULD BE NECESSARY AND PRUDENT TO HAVE 10 ADDITIONAL RESOURCES. 11 QUALIFIED TO PROVIDE THEM. 12 ACTING IN THAT CAPACITY AS A LEGAL INTERN SINCE THE INCEPTION 13 OF THIS SUIT. 14 15 Q. AND THEN MR. GODKIN FELT THAT I WAS AND SO IN MY VIEW, I HAVE BEEN SO ARE YOU STILL WORKING FOR MR. GODKIN IN RELATION TO THE MERITS OF THIS LITIGATION? 16 A. YES, YOUR HONOR, I BELIEVE SO. 17 Q. YOU REMAIN IN THAT CAPACITY AS A LAW CLERK OR LEGAL 18 INTERN AS A MEMBER OF THE LEGAL TEAM SUPPORTING THIS 19 LITIGATION? 20 A. YES, YOUR HONOR. 21 Q. OKAY. DID YOU SEVER THE SIX4THREE DROPBOX ACCOUNT 22 WHERE THE DOCUMENTS AND EVIDENCE RELATING TO THIS LITIGATION 23 WAS STORED? 24 A. ON NOVEMBER 20TH I BELIEVE, YOUR HONOR, MR. GROSS 25 AND I SPOKE. AND HE DIRECTED ME TO TAKE ALL MEASURES TO 26 ENSURE THAT MR. KRAMER TO THE BEST EXTENT I COULD -- COULD NOT 83 1 STATE OF CALIFORNIA 2 3 4 5 6 ) ) COUNTY OF SAN MATEO SS. ) I, GERALDINE VANDEVELD, OFFICIAL COURT REPORTER, COUNTY OF SAN MATEO, STATE OF CALIFORNIA, DO HEREBY CERTIFY: THAT THE FOREGOING CONTAINS A TRUE, FULL AND CORRECT 7 TRANSCRIPT OF THE PROCEEDINGS GIVEN AND HAD IN THE 8 WITHIN-ENTITLED MATTER THAT WERE REPORTED BY ME AT THE TIME 9 AND PLACE MENTIONED AND THEREAFTER TRANSCRIBED BY ME OR AT MY 10 DIRECTION INTO LONGHAND TYPEWRITING AND THAT THE SAME IS A 11 CORRECT TRANSCRIPT OF THE PROCEEDINGS. 12 DATED: DECEMBER 12, 2018 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GERALDINE VANDEVELD, C.S.R. #8634 OFFICIAL COURT REPORTER [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 5 7KRPDV 6FDUDPHOOLQR 6L[ 7KUHH //& YV )DFHERRN ,QF HW DO ·1· · · · · SUPERIOR COURT OF THE STATE OF CALIFORNIA ·2· · · · · · · · · · ·COUNTY OF SAN MATEO ·3· - - - - - - - - - - - - - - - - - - - - - - x ·4· SIX4THREE, ·5· · · · · · · · ·Plaintiff, ·6· · · V.· · · · · · · · ·Case No. CIV 533328 ·7· FACEBOOK, INC, a Delaware ·8· corporation, and Does 1 - 50, ·9· inclusive, 10· · · · · · · · ·Defendants. 11· - - - - - - - - - - - - - - - - - - - - - - x 12· · · · · · · · ·VIDEOTAPED DEPOSITION OF 13· · · · · · · · · · THOMAS SCARAMELLINO 14 15· · · · · · · · · · · April 21, 2017 16· · · · · · · · · · · · ·9:10 a.m. 17 18· · · · Conn Kavanaugh Rosenthal Peisch & Ford, LLP 19· · · · · · · · · ·Ten Post Office Square 20· · · · · · · · · ·Boston, Massachusetts 21 22 23· Reported By: · · Rosemary F. Grogan, 24· RPR, CSR No. 112993 25· Job No. 10031574 ZZZ DSWXV&5 FRP 3DJH EXHIBIT 6 From: Thomas Scaramellino Sent time: 05 15 2018 03:46:33 PM To: ?@ap.org> Cc: ?r>avmeodkm Subject: Re: Call? Thanks- I am an attorney and member of the legal team here. Yes, I was the founder of Ef?ciency 20. Let us know a good time for a call this week or next. There is an opportunity to unseal about 3,000 pages of hot documents that we believe very clearly prove the allegations in our complaint. The judge will rule on Imsealing the evidence on July 2. Any amicus briefs by news or privacy organizations in support of tmsealing the evidence need to be ?led by June 6. Happy to discuss. On Tue: May 15= 2018 at 12:43 PM, 3 .or wrote: Please to meet you gentlemen. Absolutely would like to talk. Those are some very powerful allegations of predatory monopolistic behavior. I am very curious about these sealed docs. Tom: what's your relation with the case? Are you the E?ciency 2.0 founder? Original From Thomas Scaramellino (thomasscaramellino?a?T ggailcom Sent: Tuesday: May 15= 2018 3:15 PM To: Cc: David Godkin BACKGROUND 1 Hi- Very nice to meet you. Is there a good time for a 30 min call this week or next? I have attached a summaqr of our public allegations against Facebook, Zuckerberg and ?ve other senior executives. W'arm regards. Tom 0n T..,May15.2018m 12:06 Hi all Thomas: David, meet -irom the AP. I have never met him but we have talked on the phone and he seemed very knowledgeable about how journalists could bene?t from the discovery process. -meet Thomas and David who are involved in the Six-1Three case. Maybe we should arrange a call? The information contained in this communication is intended for the use of the designated recipients named above. Ifthe reader of this communication is not the intended recipient= you are hereby noti?ed that you have received this communication in error. and that any review. dissemination, distribution or copying of this communication is suictly prohibited Ifyou have received this communication in error, please notify The Associated Press immediately by telephone at +1-212-621-1500 and delete this email. Thank you- BG001308 EXHIBIT 7 From: Thomas Swamellino Sent time: 0601,2018 12:25:20 PM To: -politico.eu> Cc: James szer, David Godkinj Stuan Gross <5gross@grosskleinlaw.com> Subject: Re: FB Motion to Seal - will Politico be joining the Guardian's ?ling on this or participating in some other fashion? Briefs should be ?led by Tues. \Ve've made clear that we will only be working with organizations who support making this midence public and having an informed and transparent debate on these critical issues. Please advise by end of day. On Thu, May 31, 2018 at 9:18 AM, Thomas Scaramellino wrote: We are still waiting to hear back ?om the clerk- Most likely scenario is we stick with current plan of ?ling amicus brief. They ?led their belated motion to seal late last night- Please see attached Let's setup a call to discuss. I am very busy today but perhaps one of the other attorneys has time. Are you working with Guardian or another group on joining an amicus brief? Best, Tom 36002172 EXHIBIT 8 From: -_openmarketsinstimte.org> Sent time: 03 31 2018 02:49:41 PM To: Thomas Sofamellmo Cc: James Kruzer, David Godkin; Stuart Gross Subject: Re: FB Motion to Seal Thanks, Thomas. Do you (or one of your colleagues) have time to chat tomorrow? From: Thomas Scaramellino Sent: Thursday, May 31, 2018 12:21:19 PM To:? Cc: James Kruzer; David S. Godkin; Stuart Gross;? Subject: FB Motion to Seal We are still waiting to hear back from the clerk. Most likely scenario is we stick with current plan of ?ling amicus brief. They ?led their belated motion to seal late last night. Please see attached. Let's setup a call to discuss. I am very busy today but perhaps one of the other attorneys has time today. Ifnot= I'm available or over 'What is your status on ?ling a brief? Best: Tom 36002165 EXHIBIT 9 4 Basil P. F'thenakis, Esq. (88399) CRITERION LAW 2225 E. Bayshore Road, Suite 200 Palo Alto, California 94303 Tel, (650) 3s2-8400 Fax. (650) 352-8408 bpf@criterionlaw.com 5 Of counsel: 6 David S, Godkin (admittedpro hac vice) James E, Kruzer (admitted pro hac vice) BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, MA02210 (617) 307-6t00 godkin@birnbaum godkin. com kruzer @birnbaum godki n. co m 1 2 3 7 8 9 l0 ll t2 Attorneys for Plaintiff, SIX4THREE, LLC, a Delaware limited liability company l3 14 SUPERIOR COURT OF CALIFORNIA l5 COLINTY OF SAN MATEO t6 t7 18 SIX4THREE, LLC, a Delaware limited liability company, Plaintiff, t9 20 21 V FACEBOOK, INC., a Delaware corporation and DOES 1 through 50, inclusive 22 Defendants. 23 24 ) ) ) ) ) ) ) ) ) ) ) ) Case DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO FACEBOOK'S MOTIONS TO COMPEL EXHIBIT A REDACTED FOR PUBLIC FILING HEARING DATE: July 10,2017 HEARING TIME: 2:00 p.m. DEPARTMENT: 2 (ComPlex Civil Litigation) JUDGE: Honorable Marie S. Weiner FILING DATE: April 10,2015 TRIAL DATE: Vacated 25 26 27 28 CIV 533328 DSG DECLARATION IN OPPOSITION TO FACEBOOK'S MOTIONS T'O COMPEL Case No. No. CIV 533328 I 2 J 4 5 I, l)avid S. Godkin, declare: l. I am an attorney at law and a member of the Law Offices of Birnbaum & Godkin, LLP, counsel for Plaintiff Six4Three, LLC ("643") in the above-captioned action, 2. I submit this declaration in support of 643's opposition to two motions filed by 6 Facebook, Inc. ("Facebook"): Facebook's motion to compel improperly withheld documents, 7 and Facebook's motion to compel third party communications. This declaration is not intended 8 to waive any rights or privileges held by counsel , 643, # 2, LLC, or Mr. Scaramellino with 9 respect to privileged communications. l0 3. Thomas Scaramellino has been a client of my law firm, Birnbaum & Godkin, l1 LLP, since April 2013. Accordingly, Mr. Scaramellino's communications with me, my t2 associates, and my employees, for purposes of obtaining legal advice, are protected by the l3 attorney client privilege. 14 4. Mr. Scaramellino contacted me in early 2015 to discuss possible claims to be l5 brought by 643, a company in which Mr, Scaramellino was an advisor and investor through an t6 investment syndicate, a Delaware limited liability company, called t7 introduced me to Theodore Kramer, who was the co-founder and managing director of 643. l8 Because Mr. Scaramellino was a member of #2, LLC, and because 19 investor, I concluded that Mr. Scaramellino, the investment entity #2,LLC, and 643 had in 20 common an interest in securing legal advice relating to the same matter - 643's claims against 2l Facebook. Furthermore, because Mr. Scaramellino is my client and was communicating with me 22 about matters in which he, the investment entity and 643 shared a common interest, I concluded 23 that Mr. Scaramellino was communicating with me with the expectation that all of his 24 communications with me would remain confidential. 25 5. #2,LLC. Mr. Scaramellino #2LLC was 643's lead At the time Mr. Scaramellino began consulting with me concerning the potential 26 claims against Facebook, I was aware that Mr. Scaramellino had graduated from Yale Law 27 School, and that he had obtained experience working on complex litigation matters as an 28 2 Case No. CIV 533328 DSG DECLARATION IN OPPOSITION TO FACEBOOK'S MOTIONS ]'O COMPEL I employee of the law firm Davis, Polk & Wardwell and also at the United States Attorney's 2 Office for the Southern District of New York (SDNY). I understood that at both Davis Polk and a J SDNY, Mr. Scaramellino had performed all of the typical tasks required of a law clerk, including 4 evidence review, research, and drafting of pleadings. I understood that the matters in which Mr. 5 Scaramellino performed these tasks were primarily related to complex civil litigation, 6 6. Mr. Scaramellino, Mr. Kramer and I recognized that filing a lawsuit against 7 Facebook would require substantial legal resources, Because my frrm is small, and because 643 8 is a defunct startup with very limited resources, I concluded that it would be appropriate and 9 helpful for Mr. Scaramellino to work with me and my fltrm as part of the legal team, I believed l0 that Mr. Scaramellino was highly qualified to work with me and my firm in this role, because he ll had completed law school at a top-rated school, and because he had obtained relevant experience l2 while working as a law clerk at Davis Polk and SDNY. I also believed that Mr. Scaramellino was l3 uniquely suited for this role because he also possessed a knowledge of the software industry, 14 Facebook Platform, and related technical terms that is not common among law clerks. I also l5 believed that this arrangement would benefit 643 by reducing the cost of prosecuting the case. As l6 such, Mr. Scaramellino's agreement to work with me on the litigation team was a condition 17 Birnbaum & Godkin's engagement with 643. 18 7. of Accordingly, Mr. Scaramellino has been working with me and my firm as a t9 member of the legal team since my firm was retained by 643, with 643's full knowledge and 20 approval. Mr. Scaramellino is performing legal research, fact investigation, assembly of data 2l and information, and preparation of pleadings, and any other work that 22 and my hrm in carrying out the representation of 643. 23 Scaramellino are performed at my direction and under my supervision. 24 performed by Mr. Scaramellino has been reviewed by me or another attorney at my firm, and 25 merged into my firm's work product. Mr. Scaramellino is not being paid for his work, His role 26 is akin to that of a law clerk or paralegal, similar to his roles at Davis Polk and SDNY' All of the tasks performed by Mr. 27 28 I decide will assist me a J Case No. CIV 533328 DSG DECLARATION IN OPPOSITION TO FACEBOOK'S MOTIONS TO COMPEL All of the work 8. 1 Among his other duties as part of my team, Mr. Scaramellino has participated in 2 meetings and conversations with 643's founders, Mr. Kramer and Mr. Gildea, He has also J assisted me in communications with potential witnesses and expert witnesses, including the third 4 party communications that are the subject of Facebook's motion. 9. 5 On April 21,2077 , Mr. Scaramellino sat for a full day deposition at which he was 6 interrogated at length by Facebook's counsel concerning any and all facts and events that took 7 place before my firm was retained. The only communications up until that time that have been 8 withheld on privilege grounds are a small number of communications with another law firm 9 about 643's claims against Facebook, and a small number of internal communications between 10 Mr. Scaramellino and Messrs. Kramer and Gildea about gathering information for review by the ll law firm for the purpose of evaluating643's claims. 10. 12 The communications and documents that Facebook is moving to compel with Mr. Scaramellino t3 these two motions have appropriately been withheld from production, because t4 is a client of my frrm, because he and his investment vehicle have in common an interest in l5 securing legal advice relating to the claims against Facebook, and because he is a member of my t6 legal team who is under my supervision and acting at all times at my direction, All of Mr, l7 Scaramellino's communications with me and my employees have been with the expectation that 18 they would remain confidential. t9 I 1. Exhibit 12 to Joshua Lerner's Declaration in Support of Facebook's Motion to 20 Compel Third Party Communications is an email that was included on the privilege log 643 2l provided to Facebook, The email is referenced on page 8, line 39 of the modified version of the 22 privilege log attached as Exhibit 4 to the Declaration of Joshua H. Lerner in Support of 23 Defendant Facebook, Inc.'s Motion to Compel Improperly Withheld Documents 24 (onathan@gotinder.com). These emails were sent using a mail merge program from an email 25 address maintained by my firm, 643litigation@birnbaumgodkin.com, The mail merge program 26 used to send the email was launched on February 3,2017, which is the date the privilege log 27 states the email was sent. 28 It appears that the email was not in fact sent by the mail merge 4 Case No. CIV 533328 DSG DECI-ARATION IN OPPOSITION TO FACEBOOK'S MOTIONS'ì'O COMPEL I program and delivered to the recipient until February 5,2017. The various emails in rows 32 - 42 2 were delivered between February 3,2017 and February 5,2017 due to the time it took the mail J â merge program to transfer the emails from the Outbox to the Sent folder, It is my belief that the 4 burden of identifying whether the email recipient happened to receive the email on February 3,4 5 or 5 for each individual email out of the hundreds of emails covered by this entry in the log 6 outweighs any benefit. Further, these emails were approved and edited by me and reflect my 7 thoughts and impressions regarding this case. 12. 8 9 Attached hereto as Exhibit A are excerpts of the transcript of the deposition of Mr. Scaramellino taken by Facebook on April 21,2017, which excerpts have been cited in l0 Plaintiff s Opposition. 1l I declare under penalty of perjury that the foregoing is true and correct. t2 Executed on June 19,2017, at Boston, MA 13 t4 S. Go l5 16 t7 l8 19 20 2t 22 ZJ 24 25 26 27 28 5 CIV 533328 DSC DECLARA'IION IN OPPOSII'ION TO FACEBOOK'S MOTIONS TO COMPEL Case No. Esq PROOF' OF' SERVICE 1 I, Cheryl A, McDuffee, declare: 2 I am a citizen of the United States and employed in Suffolk County, Massachusetts. I am J over the age of eighteen years and not aparty to the within-entitled action. My business address 4 is 280 Summer Street, Boston, MA 02210. On June 19,2017 5 document(s): 6 ,l served a copy of the within DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO FACEBOOK'S MOTIONS TO COMPEL 7 8 by electronic service, per the agreement of the parties, by emailing a true and correct copy through counsel's email address to Defendant's counsel of record at the email addresses set forth below. 9 10 ll Joshua Lerner Sonal N. Mehta t2 Laura Miller Catherine Kim l8 t9 20 I declare under penalty of perjury under the laws of thç State of California that the above is true and correct, 2l Executed June 19,2077, at Boston, Massachusetts, 22 t, 23 Cheryl A. M 24 25 26 27 28 Case No. CIV s33328 ó43 DECLARATION OF JAMES E, KRUZER IN SUPPORT OF MOTION TO SEAL F?f? EXHIBIT A REDACTED FOR PUBLIC FILING EXHIBIT 10 FILED SAN MATEO COUNTY JUL 1 4 2017 4%— Clerk oft/heSIfie-rior Court By DEPUTY CIV533328 0RD Order 604568 ERK . IllIll!llI"IIIIIMHIHIIHIIIII”HI! SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO COMPLEX CIVIL LITIGATION Case No. SIX4THREE LLC, CIV 533328 Assigned for All Purposes to Hon. Marie S. Weiner, Dept. 2 Plaintiff, vs. FACEBOOK, INC., and DOES through 50, 1 Defendants. ORDER ON DEFENDANT’S MOTION TO COMPEL PRODUCTION OF WITHHELD SCARAMELLINO COMMUNICATIONS On June 10, 2017, hearing was held on Defendant’s Motion to Compel Improperly Withheld Documents in Department 2 of this Court before the Honorable Marie S. Weiner. Basil Fthenakis of Criterion Law and David Godkin of Bimbaum & Godkin LLP appeared on behalf of Plaintiff Six4Three LLC; and Sonal Mehta, Joshua Lerner, Laura Miller, and Catherine Kim of Durie Tangri LLP appeared on behalf of Defendant Facebook Inc. Natalie Naugle, Esq., in—house counsel at Facebook Inc., also appeared. Upon due considerations of the briefs and evidence presented, and the oral argument of counsel for the parties, and having taken the matter under submission, IT IS HEREBY ORDERED as follows: Thomas Scaramellino attended law school but has never practiced law and has never been licensed as an attorney in any state. Scaramellino is the owner of #2 LLC. #2LLC is the initial and sole investor in Plaintiff Six4Three LLC (although there may be subsequent investors). Scaramellino is not and has never been an officer, director, managing member or employee the business of Plaintiff Six4Three LLC. Scaramellino participated in of Plaintiff, asking as a “business advisor”. In contemplation of litigation, Scaramellino contacted attorneys on behalf of Plaintiff to seek attorney services for this lawsuit. One such law firm was Goodwin Proctor, which ultimately did not agree to represent Plaintiff because of a conflict of interest with F acebook. Scaramellino has a previously existing attomey-client relationship with Goodwin Proctor. Thereafter Plaintiff hired Bimbaum Godkin in March 2015 and this lawsuit was filed in April 2015. Uniquely, Scaramellino agreed to work for Bimbaum Godkin on this lawsuit for free, performing services as a law clerk, apparently in order to reduce the fees and expenses to Plaintiff for the legal services of the attorney. Obviously Scaramellino is not an actual “employee” of Bimbaum Godkin. Scaramellino is a material witness in this case. Plaintiff and its counsel now assert that all communications to and from Scaramellino since at least May 2015, if not before, are attomey-client privileged or attorney work product, because he is on the Plaintis “litigation team” in this lawsuit. Notably, there is no declaration by Scaramellino himself in opposition to this motion, although some of his deposition testimony is used. Defendant Facebook has filed a motion to compel certain categories of documents listed on Plaintiff s privilege log, reflecting communications to or from Scaramellino. Communications between Scaramellino and Goodwin Proctor. Plaintiff 1. has made a prima facie showing that this is a communication between an attorney and an existing client on communication regarding accepting employment case. The as an attorney on this motion to compel is DENIED. 2. Communications between Scaramellino and Birnbaum Godkin. Plaintiff has made a prima facie showing that this is a communications between an attorney and Scaramenllino as well as managing members as an attorney on this lawsuit. The motion to compel is DENIED. 3. 1 of Plaintiff regarding potential employment and 2 Communications between Scaramellino and principals of the privilege log are (1) emails between Scaramellino ofPlaintifl and Gildea Lines of Six4Three LLC dated March 2, 2015, and (2) emails between Scaramellino and Gildea and Kramer dated August 20. 2014 through February 13, 2015. There is no communication with an attorney. Plaintiff has asserted the attomey—client privilege and the attorney work product doctrine. Obviously it cannot be attorney work product, because nothing was drafted by an attorney, and there is no indication that it reflects the impressions or opinions of an attorney. Plaintiff has failed to make a prima facie showing of privilege. In an abundance of caution, the Court will conduct an in camera review of these emails, copies of which are to be delivered directly to Department 2 on or before July 24, 2017 by Plaintiff. 4. Communications between Scaramellino and “Dalton Line 31 is emails between Scaramellino and “Dalton”, whom Plaintiff represents is an “app” developer dated February 2, 2017. The communication from Scaramellino is not at the law firm email, but rather it reflects that it is a communication from his personal email. Accordingly Plaintiff has not made a prima facie showing that this communication was explicitly and only in his capacity as a “law clerk” for the attorney. Rather it is a personal email communication to a potential witness by a non-attomey. In an abundance of caution, the Court will conduct an in camera review of these emails, copies of which are to be delivered directly to Department 2 on or before 5. July 24, 2017 by Plaintiff. Communications between Scaramellino and Sparlqylug. Sparkplug is a non-party service that helped create a website www.FacebooksAppEconomv.com attacking Facebook, which Plaintiff characterizes as a “gripe site”. This public website explicitly represents itself to be a forum for small businesses to share information and provide “thoughts and feedback”. It solicits such businesses to contact “us” and provide detailed information about its business and how it was impacted by Facebook’s conduct. As presented, the website is a forum for sharing of information on negative experiences by small businesses who developed applications in regard to Facebook. There is absolutely no indication or disclosure that the website is by or on behalf of an attorney, or that the information shared would be going to an attorney, or that any response would be “contacting” an attorney. Nor is there any promise of confidentiality. On the contrary, the website even publicly posts alleged “comments” by a “small developer”. Plaintiff asserts that email communications between Scaramellino and Sparkplug dated October 2016 through January 2017 are attorney work product, including the preparation and posting of a video that is part of the public website. Apparently Plaintiff even plans to present that video as evidence in this lawsuit. Even if Scaramellino is viewed as a law clerk course of these communications, they are communications to a third party about creation of a public website or that of the Plaintiff’s attorney in the = which website says nothing about a relationship with an attorney, it will be a communication with a law firm, or that any communications thereon are confidential. It is not a website of a law firm; rather it is an electronic forum for people to gripe about F acebook. In Behunin, the plaintiff Behunin retained attorney Steiner to sue Schwab. Steiner hired Levick, a public relations person, to create the website attacking the defendant Schwab. After filing the Sealutions lawsuit, Steiner hired Levick to create a social media campaign to induce the Schwabs to settle the case. As part of this strategy, Levick created a website, www.chuck-you.00m, linking the Schwabs to corruption, human rights violations, and atrocities associated with Suharto and his family. In a letter to Steiner and Behunin, a senior vice president at Levick stated: “Per our discussion with your client, Nicholas Behunin, LEVICK'S goal will be to develop and deploy strategy and tactics of Mr. Behunin's legal complaint.” The rest of the letter is redacted. Behunin V. Superior Court (2017) 9 Ca1.App.5th 833, 838. The Court of Appeal held that the communications regarding the creation of the website is not privileged, nor are the other communications between the plaintiff and the media relations firm. There is no “public relations privilege” in California, and the courts cannot create one. (See Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224 Cal.App.4th 754, 766-767, [“ ‘[t]he privileges Code are legislative creations; the courts expand them’ set out in the Evidence of this state have no power to ”]; Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 912 [“we are forbidden to create privileges or establish exceptions to privileges through case-by—case decisionmaking”].) Therefore, whether communications among a client, his or her attorney, and a public relations consultant are protected by the attorney—client privilege depends on whether the communications were confidential and whether disclosing them to the consultant was reasonably necessary to accomplish the purpose for which the client consulted the attorney. (See §§ 912, subd. (d), 952; Seahaus gm, La Jolla Owners Assn. , at p. 766.) 9 Cal.App.5th at p. 845. The Court of Appeal found: (1) Levick was not someone to whom disclosure was reasonably necessary to accomplish the purpose for which the plaintiff retained Steiner (i at p. 846); and (2) Steiner did not share a common interest with the plaintiff“ ‘in securing legal advice related to the same shared matter’ (i “ at p. 854). Plaintiff 643 bears the burden to show “[it] and [counsel’s] communications with [Sparkplug] were reasonably necessary for the accomplishment of the purpose for which [643] retained [counsel], which was to provide [643] with legal advice regarding [Facebook] and to represent [it] in [its]action against [Facebook]. (I_d. at p. 850.) Here, Plaintiff 643 failed to proffer sufficient evidence to show that disclosure to Sparkplug was reasonably necessary. The Behunin court found that a common interest did not exist between Behunin and Levick “‘in securing legal advice related to the same shared matter.’ “ (m, 9 Ca1.App.5th at p. 854.) Specifically, There is no evidence, however, that Levick sought legal advice from Steiner or that there was an attorney-client relationship between Steiner and Levick. To the contrary, Behunin stated in his declaration that Steiner hired Levick on behalf of Behunin without knowing anything about the content of the website Levick was to create. Although Levick, as a paid consultant, may have wanted its public relations campaign to succeed, that is not the kind of common interest contemplated by sections 912 and 952. (Behunin, at p. 854.) Accordingly, the motion to compel these communications between Scaramellino and Sparkplug is GRANTED. before July 24, 2017. DATED: July 14, 2017 Plaintiff shall produce the documents to Defendant on or WW HON. MARIE" s. WEINER JUDGE OF THE SUPERIOR COURT SERVICE LIST Six4Three v. Facebook, CIV 533328 as ofMay 3, 2017 Attorneys for Plaintiffs: BASIL F THENAKIS CRITERION LAW 2225 East Bayshore Road, Suite 200 Palo Alto, CA 94303 (650) 352-8400 DAVID GODKIN JAMES KRUGER BIRNBAUM & GODKIN LLP 280 Summer Street Boston, MA 02210 (617) 307-6100 Attorneys for Defendant: JOSHUA LERNER SONAL MEHTA LAURA MILLER CATHERINE KIM DURIE TAN GRI LLP 217 Leidesdorff Street San Francisco, CA 94111 (415) 362-6666 EXHIBIT 11 FILED courmr SAN MATEO OCT ~2'5 C RE cE vEo 01:12 parlor Courl/ the k 2016 “- B” 1 11 21115 CLEHIEEZLZEEEZES‘JIWOURT O\OOO\]O\ SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 11 SD(4THREE, LLC a Delaware limited liability company, 12 Case No. CIV 5333328 1123“” 139%] ORDER ON SIX4THREE’S [ Plaintiff, 13 v. MOTION FOR PROTECTIVE ORDER AND FACEBOOK’S MOTION FOR PROTECTIVE ORDER 14 15 16 FACEBOOK, INC., a Delaware corporation and DOES 1-50, inclusive, Time: October 13, 2016 9:00 am. Dept; Law and Motion Date: Defendant. 17 18 19 20 21 22 23 .24 WNIORJQ 25 ./ ' ' 26 ' 28 " OAH 1 27 ' CIV533328 Order After Hearing 231344 kl 1 [PROPOSED] ORDER ON MOTIONS FOR PROTECTIVE ORDER CASE NO. CIV533328 ‘ Plaintiff Six4Three, LLC’s (“Plaintiff”) Motion for Protective Order and Defendant Facebook, Inc.’s (“F acebook”) Motion for Protective Order came on regularly for hearing before the Court on October 13, 2016 in the Law and Motion Department. The Court, having reviewed the moving papers and all opposing and reply papers filed J; with the Court, and having heard the arguments of counsel, hereby DENIES Plaintiff’s Motion and GRANTS Defendant’s Motion in part, as set out below. Pursuant to Code \DOONONUI a of Civil Procedure Section 2031.060, the Court finds good cause to enter two-tier protective order. Defendant indicates that Defendant’s proposed protective order is similar to the Court’s of 10 model protective order. After comparing the Court’s model protective order for double level 11 confidentiality to Defendant’s proposed protective order, the Court makes the following changes to Defendant’s proposed protective order (all paragraph, page and line references are to 13 Defendant’s proposed protective order): 14 Paragraph 2, p.2:25: Delete “Highly Confidential” and replace with “Confidential” 15 Add to Paragraph 4(d), p.4:15 (which was omitted from Court’s model protective order): if the party chooses a consultant or expert employed by the opposing party or 16 “and provided that 17 one 18 disclosing any Confidential Information to that individual and shall give the opposing party an 19 opportunity to move for a protective order preventing or limiting such disclosure;” the party shall notify the opposing party, or designating non-party, before Delete Paragraph 4(e), p.4216-17: “or other person who otherwise possessed or knew the 20 21 of its competitors, information” Paragraph 8, p.6:9: Delete “Highly Confidential” and replace with “Confidential” l, p.7:15 only as to “identifies (by category, where appropriate)” 23 Delete Paragraph 24 Delete entire Paragraph 18, p.11224-1227. 25 Delete entire Paragraph 19, p.1228-16. 26 27 28 1 /// /// /// -1[PROPOSED] ORDER ON MOTIONS FOR PROTECTIVE ORDER CASE NO. CIVS33328 The Court'hereby entcrs the protective order attached as Exhibit A hereto, which reflects ,—.a the afOrementioncd modifications. I-TVIS SO . . ORDERED. tOCT 2 4 2016 DATED: HOWRABLE JONATHANKARES Approved as to form by: PERICINS. COIE, QM (E . BIRNBAUM & GODKIN, LLP LLP %_’_. g&.¢’aw/ " Julie E. Schwartz James E. 6 ser' flak/M ‘ OOqONm-fiwmwgz'g‘osaagas.:8 NNNNNNNN .‘.2_ [PROPOSED] ORDER ON MOTIONS FOR PROTECTIVE ORDER CASE'NO. CIV533328 EXHIBIT A Julie E. Schwartz, Bar No. 260624 JSchwartz@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350 FILED SAN MATEO COUNTY LT 25 2016 James R. McCullagh, admitted pro hac vice JMcCullagh@perkinscoie.com PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Attorneys for Defendant Facebook, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO SIX4THREE, LLC, a Delaware limited Case No. CIV533328 Plaintiff, STIPULATED [PROPOSED] PROTECTIVE ORDER liability company, v. FACEBOOK, INC., a Delaware corporation and DOES 1-50, inclusive, Defendant. In order to protect confidential information obtained by the parties in connection with this case, the parties, by and through their respective undersigned counsel and subject to the approval of the Court, hereby agree as follows: Part One: Use Of Confidential Materials In Discoverv 1. Any party or non-party may designate as Confidential Information (by stamping the relevant page or as otherwise set fonh herein) any document or response to discovery which that party or non-party considers in good faith to contain information involving trade secrets, or -1- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 confidential business, financial, or personal information, including personal financial information [\J about any individual or entity; information regarding any individual’s or entity’s banking relationship with any banking institution, including information regarding financial transactions or financial accounts, and any information regarding any individual or entity that is not otherwise available to the public, subject to protection under Rules 2.550, 2.551, 2.580, 2.585, 8.160, and 8.490 of the California Rules of Court or under other provisions of California law. Any party or non-party may designate as Highly Confidential Information (by stamping the relevant page or as otherwise set forth herein) anypdocument or response to discovery which that party or non-party considers in good faith to contain information involving highly sensitive trade secrets or confidential business, financial, or personal information, the disclosure of which would result in the disclosure of trade secrets or other hichly sensitive research, development, production, personnel, commercial, market, financial, or business information, or highly sensitive personal information, subject to protection under Rules 2.550, 2.551, 2580, 2585,8160, and 8.490 ofthe California Rules of Court or under other provisions of California law. Where response consists of more than one page, the first page and each page a document or on which confidential information appears shall be so designated. A party or non-party may designate information disclosed during a deposition or in 2. rCSponse to so written discovery as Confidential Information or Highly Confidential Information by indicating in said responses or on the record at the deposition and requesting the preparation of a separate transcript of such material. In addition, a party or non-party may designate in writing, within thirty (30) days after receipt of said responses or of the deposition transcript for which the designation is proposed, that specific pages as of the transcript and/or specific responses be treated Confidential Information or Highly Confidential Information. Any other party may object to such proposal, in writing or on the record. Upon such objection, the parties shall follow the procedures described in Paragraph 9 below. Until the thirty (30) day period for designation has lapsed, the entirety of each deposition transcript shall After the thirty (30) day period for designation be treated as Confidential Information. has lapsed, any documents or information designated pursuant to the procedure set forth in this paragraph shall be treated according to the -2- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 designation until the matter is resolved according to the procedures described in Paragraph 9 l\) below, and counsel for all parties shall be responsible for marking all previously unmarked copies DJ of the designated material in their possession or control with the specified designation. A paity that makes original documents or materials available for inspectiOn need not designate them as Confidential Information or Highly Confidential Information until after the inspecting party has indicated which materials it would like copied and produced. During the inspection and before the designation and copying, all of the material made available for inspection shall be considered Highly Confidential Information. All Confidential Information or Highly Confidential Information produced or 3. exchanged in the course of this case (not including information that is publicly available) shall be used by the party or parties to whom the information is produced solely for the purpose case. Confidential of this Information or Highly Confidential Information shall not be used for any commercial competitive, personal, or other purpose. Confidential Information or Highly Confidential Information must be stored and maintained by a receiving party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Stipulated Protective Order. The protections conferred by this Stipulated Protective Order cover not only the Confidential Information or Highly Confidential Information produced or exchanged in this case, but also (1) any information copied or extracted from or reflecting the Confidential Information or Highly Confidential Information; (2) all copies, excerpts, summaries, or compilations of Confidential Information or Highly Confidential Information; and (3) any testimony, conversations, or presentations by parties or their counsel that might reveal Confidential Information or Highly Confidential Information. However, the protections conferred by this Stipulated Protective Order do not cover the following information: (a) any infonnation that is in the public domain at the time of disclosure to part a receiving party or becomes of the public domain after its disclosure to a receiving party as a result of publication not involving a violation of this Stipulated Protective Order, including becoming part of the public record through trial or otherwise; and (b) any information known to the receiving party prior to -3- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIVS33328 the disclosure or obtained by the receiving party after the disclosure from a source who obtained the information lawfully and under no obligation 4. of confidentiality to the designating party. Except with the prior written consent of the other parties, or upon prior order of this Court obtained upon notice to opposing counsel, Confidential Information shall not be disclosed to any person other than: (a) counsel for the respective palties to this litigation, including in-house counsel and co-counsel retained for this litigation; OO\IO\ of such counsel; (b) employees (C) individual parties or officers or employees of a party, to the extent deemed CO necessary by counsel for the prosecution or defense _. of this litigation; (d) consultants or expert witnesses retained for the prosecution or defense of this litigation, provided that each such person shall execute a copy of the Certification annexed to this Order (which shall be retained by counsel to the party sodisclosing the Confidential Information and made available for inspection by opposing counsel during the pendency or after the termination of the action only upon good cause shown and upon order of the Court) before being shown or given any Confidential Information, and provided that if the party chooses a consultant or expert employed by the opposing party or one of its competitors, the party shall notify the opposing party, or designating non-party, before disclosing any Confidential Information to that individual and shall give the opposing party an opportunity to move for a protective order preventing or limiting such disclosure; of the Confidential Information or a custodian; (e) any authors or recipients (f) the Court, court personnel, and court reporters; and (g) witnesses (other than persons described in Paragraph 4(e)). A witness shall sign the Ceitification before being shown a confidential document. Confidential Information may be disclosed to a witness who will not sign -4- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 the Certification only in a deposition at which the party who designated the Confidential Information is represented or has been given notice that Confidential Information produced by the party may be used. At the request of any party, the portion of the deposition transcript involving the Confidential Information shall be designated "‘Confidential” pursuant to Paragraph 2 above. Witnesses shown Confidential Information shall not be allowed to retain copies. 5. Except with the prior written consent of the other parties, or upon prior order of this Court obtained after notice to opposing counsel, Highly Confidential Information shall be 10 treated in the same manner as Confidential Information pursuant to Paragraph 4 above, except 11 that it shall not be disclosed to individual parties or directors, officers or employees of a party, or to witnesses (other than persons described in Paragraph 4(a) or 4(e)). 13 6. Any persons receiving Confidential Information or Highly Confidential 14 Information shall not reveal or discuss such informatiOn to or with any person who 15 to receive such information, except as set forth herein. 16 including counsel, inadvertently discloses any Confidential Information or Highly Confidential 17 Information to persons who are not authorized to use or possess such material, the party shall 18 provide immediate written notice of the disclosure to the party whose material was inadvertently 19 disclosed. 20 Information is being used or possessed by 21 regardless is not entitled If a party or any of its representatives, If a party has actual knowledge that Confidential Information or Highly Confidential a person not authorized to use or possess that material, of how the material was disclosed or obtained immediate written notice of the unauthorized by such person, the party shall provide use or possession to the party whose material is 23 being used or possessed. No party shall have an affirmative obligation to inform itself regarding 24 such possible use or possession. 25 7. In connection with discovery proceedings as to which a party submits Confidential 26 Information or Highly Confidential Information, all documents and chamber copies containing 27 Confidential Information or Highly Confidential Information which are submitted to the Court 28 shall be filed with the Court in sealed envelopes or other appropriate sealed containers. On the -5- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 outside of the envelopes, a copy of the first page of the document shall be attached. If Confidential Information or Highly Confidential Information is included in the first page attached to the outside .p of the envelopes, “CONFIDENTIAL” shall it may be deleted from the outside copy. The word be stamped on the envelope and a statement substantially in the following form shall also be printed on the envelope: “This envelope is sealed pursuant to Order of the Court, contains Confidential Information and is not to be opened or the contents revealed, except by Order of the OKOOOQONUI Court or agreement by the parties.” 8. A party may designate as Confidential Information or Highly Confidential Information documents or discovery materials produced by a non-party by providing written notice to all parties of the relevant document numbers or other identification within thirty (30) days after receiving such documents or discovery materials. Until the thirty (30) day period for designation has lapsed, any documents or discovery materials produced by a non-party shall be treated at Confidential Information. Any party or non-party may voluntarily disclose to others without restriction any information designated by that party or nonpaity Information or Highly Confidential Information, although status a as Confidential document may lose its confidential if it is made public. If a party produces materials designated Confidential Information or Highly Confidential Information in compliance with this Order, that production shall be deemed to have been made consistent with any confidentiality or privacy requirements mandated by local, state or federal laws. 9. If a party contends that any material is not entitled to confidential treatment, such party may at any time give written notice to the party or non-party who designated the material. The party or non-patty who designated the material shall have twenty (20) days from the receipt of such written notice to apply to the Court for an order designating the material The party or non-party seeking the order has the burden as confidential. of establishing that the document is entitled to protection. -6- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Notwithstanding any challenge to the designation of material 10. as Information or Highly Confidential Information, all documents shall be treated be subject to the provisions hereof unless and (a) Confidential as such and shall until one of the following occurs: the pa1ty or non-party who claims that the material is Confidential Information or Highly Confidential Information withdraws such designation in writing; or (b) the party or non-party who claims that the material is Confidential Information or Highly Confidential Information fails to apply to the Court for an order designating the material confidential within the time period specified above after receipt of a written challenge to such designation; or 10 ll (c) the Court rules the material is not Confidential Information or Highly Confidential Information. 13 All provisions of this Order restricting the communication or use of Confidential 11. 14 Information or Highly Confidential Information shall continue to be binding after the conclusion 15 of this action, 16 possession 17 days either (a) return such documents to counsel for the party or non-party who provided such 18 information, or (b) destroy such documents. Whether the Confidential Information or Highly 19 Confidential Information is returned or destroyed, the receiving party must submit a written 20 certification to the producing party (and, 21 by the 60 day deadline that (1) all the Confidential Information or Highly Confidential 22 Information that was returned or destroyed, and (2) affirms that the receiving party has not 23 retained any COpies, abstracts, compilations, summaries or any other format reproducing or 24 capturing any of the Confidential Information or Highly Confidential Information. unless otherwise agreed or ordered. Upon conclusion of the litigation, a party in the of Confidential Information or Highly Confidential Information shall within sixty (60) if not the same person or entity, to the designating party) Notwithstanding this provision, counsel are entitled to retain an archival copy of all pleadings, 26 motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 27 deposition and trial exhibits, expe1t reports, attorney work product, and consultant and expert 28 work product, even if such materials contain Confidential Information or Highly Confidential -7. STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Information. Any such archival copies that contain or constitute Confidential Information or Highly Confidential Information remain subject to this Stipulated Protective Order. The conclusion of the litigation shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. After the conclusion of this action, this Court the terms of this 12. will retain jurisdiction to enforce Order. Nothing herein shall be deemed to waive any applicable privilege or work product protection, or to affect the ability of a party to seek relief for an inadvertent disclosure of material protected by privilege or work product protection. Any witness or other person, firm or entity from which discovery is sought may be informed of and may obtain the protection of this Order by written advice to the parties’ respective counsel or by oral advice at the time of any deposition or similar proceeding. 13. In the event that any Confidential Information or Highly Confidential Information is inadvertently produced without such designation, the party or non-party that inadvertently produced the information without designation shall give written notice of such inadvertent production promptly after the party or non-party discovers the inadvertent failure to designate (but no later than fourteen (14) calendar days after the party or non-patty discovers the inadvertent failure to designate), together with a further copy of the subject information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” (the “Inadvertent Production Notice”). Upon receipt of such Inadvertent Production Notice, the party that received the information that was inadvertently produced without designation shall promptly destroy the inadvertently produced information and all copies thereof, or, at the expense of the producing party or non-party, return such together with all copies of such information to counsel for the producing party and shall retain only the newly-produced versions of that information that are designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” This provision is not intended to apply to any inadvertent production of any information or materials protected by ~8- STLPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 attorney—client or work product privileges, which inadvertent production is governed by Section 14 below. 14. In the event that any party or non-party inadvertently produces information that is privileged or otherwise protected from disclosure during the discovery process (“Inadvertent Production Material”), the following shall apply: (a) \) Such inadvertent production or disclosure shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of attorney—client privilege, attorney work product protection, or other applicable protection in this case or any other federal or state proceeding, provided that the producing party shall notify the receiving party in writing of such protection or privilege promptly after the producing party discovers such materials have been inadvertently produced. (b) If a claim of inadvertent production is made, pursuant to this Stipulated Protective Order, with respect to discovery material then in the custody party shall: (i) refrain from any further examination or disclosure of another party, that of theiclaimed Inadvertent Production Material; (ii) promptly make a good-faith effort to return the claimed Inadvertent Production Material and all copies thereof (including summaries and excerpts) to counsel for the producing party, or destroy all such claimed Inadvertent Production Material (including summaries and excerpts) and certify in writing to that fact; and (iii) not disclose or use the claimed Inadvertent Production Material for any purpose until further order of the Court expressly authorizing such use. (c) A party may move the Court for an order compelling production of the Inadvertent Production Material on the ground that it is not, in fact, privileged or protected. The motion shall be filed under seal and shall not assert as a ground for entering such an order the fact or circumstance of the inadvertent production. The producing party retains the burden of establishing the privileged or protected nature information. While such a of any inadvertently disclosed or produced motion is pending, the Inadvertent Production Material at issue shall be treated in accordance with Paragraph 14(b) above. -9- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 If a party, in reviewing discovery material (d) it has received from any other party or any non-party, finds anything the reviewing party believes in good faith may be Inadvertent Production Material, the reviewing party shall: (i) refrain from any further examination or disclosure of the potentially Inadvertent Production Material; (ii) promptly identify the material in question to the producing party (by document number or other equally precise description); and \l (iii) give the producing party seven (7) days to-respond producing party will make a claim of inadvertent production. claim, the provisions 15_. whether the If the producing party makes such a of Paragraphs l4(a)-(c) above shall apply. The parties agree that should the production of source of this Order. To 10 they will need to amend or supplement the terms ll source code becomes necessary in this case, the parties amendments to this Order to cover any production code become necessary, the extent production of will work expeditiously to propose of source code. If a party is served with a subpoena or a court order issued in other litigation that 13 16. 14 compels disclosure 15 receiving party must: 16 as to (a) of any Confidential Information or Highly Confidential Information, the promptly notify in writing the designating party. Such notification shall I 17 include a copy 18 of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to of the material covered by the subpoena or order is 19 issue in the other litigation that some or all 20 subject to this Stipulated Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 22 (c) cooperate with respect to all reasonable procedures sought to be pursued by 23 the designating party whose Confidential Information or Highly Confidential Information may be 24 affected. If the designating party timely seeks a protective order, the party served with the subpoena 26 or court order shall not produce any Confidential Information or Highly Confidential Information 27 before 28 obtained the designating party’s permission. The designating party shall bear the burden and a determination by the court from which the subpoena or order issued, unless the party has -10- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 expense of seeking protection in that court of its confidential material—and nothing in these provisions should be construed as authorizing or encouraging a receiving party in this action to disobey a lawful directive from another court. The following additional terms apply to non-party discovery material: 17. The terms (a) of this Order are applicable to information produced by a non- party in this action and designated \l as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Such information produced by non-parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a non-party from seeking additional protections. In the event that a party is required, by (b) a valid discovery request, to produce a non-party’s confidential information in its possession, and the party is subject to an agreement with the non-party not to produce the non-party’s confidential information, then the party shall: i. that some or all promptly notify in writing the requesting party and the non-party of the information requested is subject to a confidentiality agreement with a non- party; ii. promptly provide the non-party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and description of the information requested; iii. 20 a reasonably specific and make the information requested available for inspection by the non- party. (c) ‘ If the non-party fails to object or seek a protective order from this Court within 28 days of receiving the notice and accompanying information, the receiving party may produce the non-party’s confidential information responsive to the discovery request. party timely seeks a If the non- protective order, the receiving party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the non-party before a determination by the Court. Absent a court order to the contrary, the non-party shall bear the -11- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 burden and expense of seeking protection in this Court of its Confidential Information or Highly Confidential Information. 18. Nothing in this Stipulated Protective Order shall be construed to preclude any party from asserting in good faith that certain Confidential Information or Highly Confidential Information requires additional protections. The parties shall meet and confer to agree upon the terms of such additional protection. By stipulating to the entry of this Protective Order no party waives any right it otherwise would have to object to disclosing or producing any information or \OOO\IO\ item on any ground not addressed in this Stipulated Protective Order. Similarly, no party waives any right to object on any ground to use in evidence of any of the material covered by this 10 Stipulated Protective Order. Nothing in this Stipulated Protective Order abridges the right of any ll person to seek its modification by the Court in the future. Part Two: Use of Confidential Materials in Court The following provisions govern the treatment 13 of Confidential Information or Highly for adjudication of matters other 14 Confidential Information used at trial or submitted 15 than discovery motions or proceedings. These provisions are subject to Rules 2.550, 2.551, 2.580, 16 2.585, 8.160, and 8.490 17 Rules. as a basis of the California Rules of Court and must be construed in light ofthose i 18 19. A party that files with the Court, or seeks to use at trial, materials designated as 19 Confidential Information or Highly Confidential Information, and who seeks to have the record 20 containing such information sealed, shall submit to the Court a motion or an application to seal, 21 pursuant to California Rule 22 20. of Court 2.551. A party that files with the Court, or seeks to use at trial, materials designated as 23 Confidential Information or Highly Confidential Information by anyone other than itself, and who 24 does not seek to have the record containing such information sealed, shall comply with either of the following requirements: 26 (a) At least ten (10) business days prior to the filing or use of the Confidential 27 Information or Highly Confidential Information, the submitting party shall 28 give notice to all other parties, and to any non-party that designated the -12- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 materials as Confidential Information or Highly Confidential Information pursuant to this Order, of the submitting party’s intention to file or use the Confidential Information or Highly Confidential Information, including specific identification of the Confidential Information or Highly Confidential Information. Any affected party or non-party may then file a motion to seal, pursuant to California Rule of Court 2.551(b); or O\ '(b) At the time of filing or desiring to use the Confidential Information or Highly Confidential Information, the submitting party shall submit the \000\] materials pursuant to the lodging-under-seal provision of California Rule of Court 2.5 5 l (d). Any affected party or non-party may then file a motion to seal, pursuant to' the California Rule of Court 2.551(b), within ten (10) business days after such lodging. Documents lodged pursuant to California Rule of Court 2.551(d) shall be unsealed upon expiration bear a legend stating that such materials shall of ten (10) business days, absent the filing of a motion to seal pursuant to Rule 2.551(b) or Court order. 21. In connection with a request to have materials sealed pursuant to Paragraph Paragraph 13, the requesting party’s declaration pursuant to California Rule 12 or of Court 2.551(b)(1) shall contain sufficient particularity with respect to the particular Confidential Information or Highly Confidential Information and the basis for sealing to enable the Court to make the findings required by California Rule of Court 2.550(d). IT IS SO STIPULATED. DATED: , 2016 PERKINS COIE LLP By: Julie E. Schwartz Attorneys for Defendant Facebook, Inc. -13- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 DATED: , 2016 BIRNBAUM & GODKIN, LLP By: David Godkin Attorneys for Plaintiff SIX4THREE, LLC IT IS SO ORDERED. DATED: ”/69L '7’ w; (Wk 6. ,2016 JUWE OF THE SUPERIOR COURT -14- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 CERTIFICATION I hereby certify my understanding that Confidential Information or Highly Confidential Information is being provided to me pursuant to the terms and restrictions ofthe Stipulation and Protective Order Regarding Confidential Information filed on Six4Three, LLC v. Facebook, (“Order"). I have been given Inc, a , 2016, in San Mateo County Superior Court Case No. CIV533328 copy of that Order and read it. I agree to be bound by the Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I will not reveal the Confidential Information or Highly Confidential Information to anyone, except as allowed by the Order. I will maintain all such Confidential Information or Highly Confidential Information, including copies, notes, or other transcriptions made therefrom, in a secure unauthorised access to it. No later than thirty (30) days after the conclusion manner to prevent of this action, I will return the Confidential Information or Highly Confidential Information, including copies, notes, or other transcriptions made therefrom, to the counsel who provided me with the Confidential Information or Highly Confidential Information. I hereby consent to thejurisdiction ofthe San Mateo County Superior Court for the purpose of enforcing the Order, even proceedings occur after termination if such enforcement of this action. located at the address I hereby appoint as of my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. I declare under penalty certificate is executed this _ of perjury that the foregoing day of , is true and correct and that this 2016, at By: Address: Phone: -15- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 12 From: David Godkin Sent time: 03 23 2018 11:30:30 AM _a:mcom> Subject: Extensive evidence regarding Facebook?s treatment of friend data and user privacy Senator- My name is David Godkin. My ?rm has obtained extensive discovery of communications between Zuckerberg and numerous other Fac ebook executives and employees regarding Fac ebook's treatment of user data and third party developers from 2007 to 2015. I believe the information we have tmcovered is highly relevant to the Cambridge Analytica investigation and demonstrates clearly that aceboolc violated the privacy of CA citizens and its prior settlement with the FTC. I have attempted to summarize the evidence below. This summary does not do the wealth of evidence we have obtained justice, which is why I'm hoping there is an appropriate mechanism for your staff to review this information to ensure the public debate in CA around this issue is fully informed. I look forward to hearing from you. Regards, David As you can see, there is a lot here: and it would take months or even years for CA legislators and regulators to obtain discovery of this information from Facebook: if at all. 'We hope to identifyr an appropriate mechanism for CA legislators and regulators to evaluate the evidence to come to their own conclusions regarding its impact on Facebook?s culpability in the Cambridge Analytica matter. BG0001 52 Get Outlook for [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 13 From: David (Bodkin Sent time: 03 22 2018 12:24:19 PM To: ?@ico.org.uk.; ?@ico.org.uk; _@ico.org.uk; a'iccorguk Subject: Extensive evidence regarding Faceboolc?s treatment of friend data and user privacy Commissioner Denham and Staff: My name is David Godkin. My ?rm has obtained extensive discovery of communications between Zuckerberg and numerous other Fac ebook executives and employees regarding Facebook's treatment of user data and third party developers ?'om 2007 to 2015. I believe the information we have uncovered is highly relevant to the Cambridge Analytica investigation and demonstrates clearly that aceboolc violated the privacy of UK citizens and its prior settlement with the FTC . I have attempted to summarize the evidence below. This summary does not do the wealth of evidence we have obtained justice, which is why I'm hoping we can speak with your o??ice to determine if there is an appropriate mechanism for your team to evaluate the en'dence yourselves. I look forward to hearing from you. Regards, David As you can see: there is a lot here: and it would take months or even years for ICO to obtain discovery of this information from Facebook. We hope to identify an appropriate mechanism for your team to access it and determine its relevance to your current e?o?s. 86000154 Sent from my iPhone [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 14 From: David Godkm Sent time: 03 26 2018 02:53:40 PM To: doistatetorus Cc: James Kru-zer Subject: Extensive evidence regarding Facebook's treatment of friend data and user privacy My name is David Godkin My ?rm has obtained extensive discovery of communications between Zuckerberg and numerous other Facebook executives and employees regarding Facebook's treatment of user data and third party developers from 2007 to 2016 I believe the information we have uncovered is highly relevant to the Cambridge Analytica investigation and demonstrates clearly that Facebook violated the privacy of Oregon citizens and its prior settlement with the FTC I have attempted to summarize the evidence below This summary does not do the wealth of evidence we have obtained justice which is why I'm hoping there is an appropriate mechanism for your staffto review this information to ensure the public debate in Oregon around this issue is fully informed I look forward to hearing from you Regards. David As you can see. there is a lot here. and it would take months or even years for Oregon of?cials to obtain discovery ofthis information from Facebook if at all We hope to identify an appropriate mechanism for your of?ce to evaluate the evidence to come to its own conclusions regarding its impact on Facebook's culpability in the Cambridge Analytica matter. 86000156 EXHIBIT 15 Sent time: 11 2720180539133PM To: Theodore Kramer Thomas Scaramellino Cc: David Godkin; Stuart Gross James Kruzer Subject: from-at WashPost -- mom 3! Hi Ted and Tom, l?m getting a bit worried since I have not heard from you in several days. We are extremely eager to do the story now that there is an opportunity for the documents to be released. I understand that Collins said that will happen in a week, but I'm sure they could leak before?and of course we want to be first. The challenge is that until now we have only talked off the record, so it will be hard to use material from our conversations if I don't hear from you. In addition, the trove is big as we know, and I know you had promised to offer some guidance on how to go through it. I would really appreciate if you could let me know what is happening either way ?even if it is to say that you can't speak. You can reach me on my cell or on Signal at? Thanks very much. 86000716 [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 16 From: David Godkin Sent time: ?33232318095318.1222 To: Subject: Fare-shook Platform Anti-Competition Lawsuit 3C )siinute Phone Call Attachments: Background for-doe): Dear- My name is David Godkin and have represented LLC. a software developer. in ongoing litigation with Facebook for almost three years now regarding repeated violations of anti-competition laws in connection with Facebook Platform I hope you have time to read the attached summary of our complaint and various issues in the case We have obtained emails from Zuckerberg and numerous other Facebook executives and employees involved in implementing the bait and switch scheme over a lfthis piques your interest. I would like to setup a 30-minute call I would kindly ask that you not share any ofthis information yet as it is embargoed for a particular media outlet at this time The evidence we have uncovered is currently subject to 3 Protective Order in California state court We are hoping to unseal the information this summer but that will be up to the court After our call. if you remain interested in speaking on this issue. which I think puts a lot of meat on the bones of some of your core arguments then we would be willing to share the evidence with you so long as you agree to abide by the Protective Order (similar to an NBA) You could use the evidence to inform your views and paint a picture. but not share any of it directly until the court agrees for it to go public. My client's interest here is simply in bringing Zuckerbergis conduct into full public light. It is disappointing that the media continues to describe Facebook as ?not doing enough? ?far from it The company. at Zuckerberg's explicit direction has engaged in malicious and deceptive conduct throughout Platform's history and is currently directing the same movie for Messenger Platform It needs to be stopped We have the evidence to bring the full extent of Zuckerberg's conduct into public view I hope you have interest in exploring ways we may be able to work together on this Sincerely. David Godkin Birnbaum Godkin, LLP 80510 BG000425 California Civil Jury Instructions Breach of Contract (303). A developer must prove that (1) developer and Facebook entered into a contract (not disputed); (2) developer did all or substantially all of the significant things that the contract required it to do (not disputed); (3) Facebook failed to do something that the contract required it to do or that Facebook did something that the contract prohibited it from doing; (4) developer was harmed (not disputed); (5) Facebook's breach of contract was a substantial factor in developer's harm (not disputed). To prove 3, the developer must show that FB failed to provide rights to the data as required under the clause "we give you all rights necessary to use the code, APIs, data and tools 643 receives from Facebook" and/or that FB violated the contract by weaponizing FB Platform for anti-competitive reasons, contrary to its repeated representations that induced the developer to enter into the contract. Intentional Misrepresentation (1900). A developer must prove that (1) Facebook represented to developers that a fact was true (e.g. level competitive playing field); (2) Facebook's representation was false (e.g. the playing field was not level); (3) Facebook knew that the representation was false when it made it, or that it made the representation recklessly and without regard for its truth (Facebook knew the playing field was not level); (4) Facebook intended that developers rely on the representation (the point of Facebook Platform was for developers to build applications) ; (5) developers reasonably relied on the representation (tens of thousands of developers cannot all be unreasonable); (6) developers were harmed (the WSJ has reported on this harm); and (7) developers' reliance on Facebook's representation was a substantial factor in causing its harm (the WSJ has reported on this nexus between Facebook’s conduct and the harm). Concealment (1901). A developer must prove that (1) Facebook and the developer were in some kind of fiduciary or business relationship and that Facebook intentionally failed to disclose certain facts, or disclosed some facts but intentionally failed to disclose others, or intentionally failed to disclose certain facts that were known only to Facebook, or prevented the developer from discovering certain facts (all developers enter into a contractual relationship with Facebook); (2) the developer did not know the concealing facts (developers did not know Zuckerberg decided to shut down Graph API in 2012); (3) if the concealed facts had been disclosed, the developer would have behaved differently (developers would not have built apps after 2012 if they had known of Zuckerberg’s decision); (4) the developer was harmed (many apps shut down or pivoted); and (5) Facebook's concealment was a substantial factor in causing the developer's harm. BACKGROUND NON-ATTRIBUTION BG000435 Negligent Misrepresentation (1903). A developer must prove that (1) Facebook represented to the developer that a fact was true (e.g. level competitive playing field); (2) Facebook's representation was not true (e.g. the playing field was not level); (3) Although Facebook may have honestly believed it was true, Facebook had no reasonable grounds for believing it was true when Facebook made it (Facebook could not have had reasonable grounds as it designed and managed an unfair playing field); (4) Facebook intended the developer to rely on the representation (Zuckerberg publicly admits he was trying to entice developers); (5) the developer reasonably relied on the representation (tens of thousands of developers cannot all be unreasonable); (6) the developer was harmed (the WSJ has reported on this harm); and (7) the developer's reliance on the representation was a substantial factor in its harm (the WSJ has reported on the nexus between Facebook’s conduct and this harm). Intentional Interference with Contractual Relations (2201). A developer must prove (1) that there was a contract between the developer and its users (Facebook’s SRR requires developers to maintain these contracts); (2) Facebook knew of the contract (Facebook must have known if it requires them); (3) Facebook's conduct prevented performance or made performance more expensive or difficult (any app that relied on restricted APIs broke in some way, violating terms of service for that app); (4) Facebook intended to disrupt the performance of the contract or knew that disruption of performance was substantially certain to occur (Facebook maintained lists of all the apps that would be disrupted and so clearly knew disruption would occur); (5) the developer was harmed; and (6) Facebook's conduct was a substantial factor in the developer's harm. BACKGROUND NON-ATTRIBUTION BG000436 EXHIBIT 17 rm _mmdm> Sent time: 05. 04"2018 05:58:12 PM To: Theodore Kramer Cc: James Kruzer Subject: Re: Follow up from our all Hi Ted, Sorry for the delay. I'm trying to get things moving in?house and it's been a bit slow. The ?is keen to follow up though. He's going to speak to legal counsel and get an idea of irwoh'ementlcost. I also remembered I had some people from Yale Law school who got in touch before who were keen to help with the investigation and o?aed pro-bone US legal supporL so I have a back-up plan If on were able to send me any further suggestions to show legal counsel of what's required that might be helpful I spoke to- _earlier and he said he'd be happy for you to get in touch also On 4 May 2018 at 22:28: Theodore Kramer wrote: Hi - Just checking in to see if you had any questions or wanted to jump on the phone this weekend or next week. Thanksandtalk soon! On Mon, Apr 30, 2018 at 9.08 AM Theodore Kramer wrote: BACKGROUND A case management conference was held this past Prickly. We are ?ling an opposition to the defendants' motions on 5/17 that will contain approximately 2:000 pages of exidence supporting our position that the conduct we allege in our complaint: namely that Facebook?s entire business today: and virtually all its privacy scandals these past few years= are the fruits of a bait and switch scheme designed by Zuckerberg in 2012 to keep Facebook's business ?om collapsing by weaponizing user data in a manner that defrauded developers and users. This evidence goes to the very heart of the Cambridge Analytica scandaL and much more. These motions will be heard on Monday: July at 9 am Facebook and the individual defendants will move to seal the evidence we submit no later than 51"25. Ifyou would like to convince the Court that this evidence should be available to the public= you should ?le a motion seeking permission to participate as amicus curiae. Your motion, along with your proposed amicus brief, must be ?led and served by June 6 so that it can be heard by the Court on July 2 at the same hearing at which the Court will consider mimerous motions in the case. Ifthe Court denies the motion to seal the evidence would be transferred immediately to the public case ?le. There is a strong public interest argument here. (In my view: the public interest argument doesn't get much stronger when you're talking about conduct that ddiauds 1/3 of the world's population and tens of millions of businesses.) Please let me know asap whether you intend to ?le a motion seeking leave to ?le an amicus brief. I am happy to speak with your editorial and"'or legal department and have our team prepare a draft motion or template if that would be helpful I look forward to your answer. We have discussed internally and I would be willing to go on record at some point with any organizations who ?le amicus briefs- .. --.--.1A .. womu IOVC an muouucuon lU?mlu anyone ntvacy mernnuonaL WC MC LUCIE CUWUCI ?ling amicus brief too as it Will only strengthen our argument to get the court to unseal the evidence- Thanks. Ted On Fri: Apr 27: 2018 at 3:40 AM athe dian.c.om> wrote: Hi Theodore: I just wanted to say that I haven't forgotten you. I've been in touch with?and he was up for the idea of the Guardian petitioning the court for disclosure and was going to talk to the ?about how we would go about doing this- I"ve just been waylaid by other wanted to check in and see if there's an}r further news but also to say we're still interested in pursuing- Is any We? 1 to spoke ?He directed me toward the right person at Privacy International to talk to but I haven't managed to have that conversation yet. Could you perhaps update me with any developments your end and I will try and see what I can do to push things along this end? thanks very much, On 29 March 2018 at 22:59, Theodore Kramer Sent time: 05.21.2018 06:46:17l Phi To: theguardiancom> Cc: Ted Kramer ; mkslex.corn>; James Kruzer; David Godkin Subject: Re: Six4Three v. Facebook Application and Amicus Brief Hi- Thanks for the thorough update. Vt?e have brie?y conferred and think we can get comfortable with this but want to address a few things morning. What is the best time to speak then? I am on US. paci?c time now but don't mind walcing up in the middle of the night to discuss. Just let us know a good time and we can circulate a dial-in. Here are a few thoughts to consider: We don't think it's a good idea to disclose-as an expert wimess now. It gives FB's lawyers something to distract the court about by making up issues, which they have been very good at doing these past three years. I'm not sure if he could be an anonymous source verifying our allegations without disclosing him as an expert witness in the case. I'd like your thoughts on that. Ted mentioned that-an con?rm some of our allegations in the complaint. Would he or others be willing to do so on record? We are very much hoping that the ?rst reporting on this can verify at least a signi?cant portion of the allegations to mitigate the impact of FB's counter punch Since we don't want to reveal -we are wondering who might ?ll this gap; As for FB's counter-punch, we do not want to open any doors that make it easier for them to malign Ted or his company. We don't want this to be about Ted's company or app at this point, because it will distract from Facebook's own conduct, which had nothing to do with Ted's company. We also want to anticipate FB using its in?uence over the media to dampen this story very quickly after you print; there will need to be follow?ups prepared that e??ectively accomplish this. Would like to hear your thoughts; Ted and the company would remain of the record at this point. It is possible that the lead comsel on the case, David; would provide a brief statement saying we have no comment on the article but are con?dent the evidence will back up all of our allegations and are seeking to unseal the evidence in court on July 2; We would hope to receive assurance from the Guardian that it will be ?ling an application'brief to support unsealing regardless of what FB may do as a result of your decision to publish now - the most important thing for us is to obtain support in ?ont of the judge that these documents are crucial to this ongoing public debate. We won't do anything to jeopardize that goal so would need your ?rm commitment on this. We don't want to win any battles only to lose the war. Hope this is helpful context. Look forward to discussing tomorrow. Tom On Mon, May 21; 2018 at 2:38 wrote: HialL Thanks so much for your time in various ways today. Great to meet Ted and hear more about the ?ght so So; I thought it might be helpful to lay out our thoughts at the moment This is all up for debate depending on what you think The aim is to do tlu's with what you want?with the intention of trying to be as impactful as possible. To that end, we thought Zuck's evidence to the EU parliament tomorrow evening is an ideal hook for doing a set of ?rst reports - based on the publicly available docs- ?We could time the web publication for when Zuck is about to, or is in the process of, giving evidence. I've talked at length with my colleague? my editor,- and we thought the ideal would be: - A main news story. This focuses on the central allegations laid out in the ?lings- W'hat Facebook is trying to do to stop the underlying docs being made public. The Guardian's decision to ?le a brief in support in concert with other news orgs. And - ideally - some supporting quotes from -I understand these need to be anonymous but it would still be really use?il to have these I think. - A secondary news story that focusses on the privacy abuses, mass data harvesting via Android etc- - And, ideally, a background piece that is a bit more discursive- This would have something about the legal ?ght so far, the other developers a?'ected, the coming Facebook PR offensive etc- It would just be more colourful, easy-to-read- This is all working on the assumption that you don't wish to go on the record as yet - though maybe there's a quote about the legal ?ght, or your con?dence in being vindicated etc that you might consider - but uses a bit of information on background So, there's a bit of an explanation that lays out the uphill battle it's been to get this far and what Facebook's blocking moves have been- But up to you. Ifthis does sound like a good plan I'd ideally need to speak to you early UK time- We?d need to sell this into the Guardian news desk early so they are prepped and ready to run- As well as launching online tomorrow pm, we'd also try and get you on the front page for Wednesday arm and ifso, that needs to be teed up as early as possible in advance. I think the timing is good, because unless there's another big news event (always possible) luck is probably the front page news anyway. I'd also be interested in learning more about the ins and outs of the ?ling as I think that may make an interesting focus in terms of Facebook's blocking moves. Anyway, I'll leave this with you but if tomorrow UK morning (I can do as early as necessary) works for you, that would be ideal But obviously I understand you all have busy schedules and in which case, we can delay until later. This e?mail and all attachments are con?dential and may also be privileged. lfyou are not the named recipient, please notify the sender and delete the e-mail and all attachments immediately. Do not disclose the contents to another person. You may not use the information for any purpose. or store. or copy, it in any way. Guardian News 8. Media Limited is not liable for any computer viruses or other material transmitted with or as part of this e-mail. You should employ virus checking software. Guardian News Media Limited is a member of Guardian Media Group plc. Registered Ol?ce: PO Box 68164. Kings Place. 90 York Way, London. N1P 2AP. Registered in England Number 908396 86006394 EXHIBIT 19 Sent time: 055222018 08:11:37 AM To: Thomas Summellino Cc: David Godkin-mkslemcom>; James Kruzer, Ted Kramer Subject: Re: Six4Three v. Facebook Applieation and Amicus Brief Agh. Hi all- I got caught on a call and hadn't realised the time. Just called in but you're not I missed you. On 22 May 2018 at 12:48, Thomas Scaramellino wrote: Yes, let's talk in about 10 min. Let's use this conference line. Global dial-in; (720) 362-6860 Code: 21863759 I have caught up with David, Jim and Ted on your last note; it will be just me on the line. On Tue= May 22, 2018 at 1:40 wrote: Hi there, Yes, understood Can we talk 8am your time? (I think that's 1pm my time not 2pm). The Guardian's counsel has said that we need to research and ?le our own independent briefthat he puts in the range of $12-15,000 costwise. I've told them how important it is and how the primary consideration here should be editorial? journalistic ?rst and cost second but there Will obviously be some discuss around this which won't happen until US business hours so, depending on how that goes= we may need to dela?o?mg. But let's speak later if that's okay. Thanks, On 22 May 2018 at 0129, Thomas Scaramellino wrote: The key thing with-is that if the article identi?es him as an expert witness or bases his con?rmation of the allegations on the fact that he has reviewed the evidence, then Facebook will cry foul at the hearing and distract the judge. we have no obligation right now to disclose a new expert witness to them but that won?t matter. They will fabricate an issue about it anyway that could be just enough of a sideshow to derail our efforts on July 2. They will claim (falsely) that we improperly revealed evidence and that very well could cause the judge to step back and delay his ruling on making the evidence public. On Mon, May 21, 2018 at 5:19 PM Thomas Scaramellino wrote: 0k very helpful. Why don?t you work on getting US Guardian con?rmation on ?ling and continue to plan to move forward and maybe we can all talk around 8am Eastern US time, which I believe is 2pm your time. Ifwe need to do earlier just but I think you can keep ball rolling as we seem to be on same page. I think anon ous quotes from-Would be ?ne so long as he isn?t identi?ed as an expert witness and you have someone like illing to go on record An article entirely based on anonymous sources will be much more susceptible to counter attack so would very much prefer to avoid Let me know how that sounds. OnMorL May 21, 2018 at wrote: Sorry= and on ?nal point totally agree. I haven't managed to get hold of -o discuss lawyers' call but= yes: I agree: Guardian must give full commitment. In UK, that has been cleared agreed they are just waiting for US legal feedback On Mort 21 May 2018 at wrote: Thanks. All good ints and I think generally we are on same page. Happy to work toward whatever you feel best approach. Re understood, though would still like to use anon quotes if possible. Re-that is what I am trying to do..he is up for it but needs to run it by his lawyer. Re Facebook pushback= most important thing is to simply address (even if brie?y) major lines of attack otherwise one opens oneselfup for counter-attack. Brief quotes from comsel sounds good plan. Plus, ideally, some context background (but doesn't have to be extensive.) Re ?ne of calL I'm completely ?exible-whatever works best for you..but ideally to present news plan by latest midday UK time. And the earlier the better in terms of being able to use info to inform reporting. msg- On Mom 21 May 2018 at 23:46= Thomas Scaramellino wrote: Hi Thanks for the thorough update. We have brie?y conferred and think we can get comfortable with this but want to address a few things morning. What is the best ?ne to speak then? I am on US. paci?c time now but don't mind waking up in the middle of the night to discuss. Just let us know a good time and we can circulate a dial-in. Here are a few thoughts to consider. 0 We don't think it's a good idea to disclose-s an expert witness now. It gives FB's lawyers something to distract the court about by making up issues, which they have been very good at doing these past three years. I'm not sure if he could be an anonymous source verifying our allegations without disclosing him as an expert witness in the case. I'd like your thoughts on that. Ted mentioned that?an con?rm some of our allegations in the complaint. Would he or others be willing to do so on record? We are very much hoping that the ?rst reporting on this can verify at least a si portion of the allegations to mitigate the impact of FB's counter punch. Since we don't want to reveal?e wondering who might ?ll this gap; As for FB's counter-punch. we do not want to open any doors that make it easier for them to malign Ted or his company. We don't want this to be about Ted's company or app at this point= because it will distract ?om Facebook's own conduct. which had nothing to do with Ted's company. We also want to anticipate FB using its in?uence over the media to dampen this story very quickly after you print; there will need to be follow-ups prepared that accomplish this. W'ould like to hear your thoughts; 0 Ted and the company would remain of the record at this point. It is possible that the lead counsel on the case= David would provide a brief statement saying we have no comment on the article but are con?dent the evidence will back up all of our allegations and are seeking to unseal the evidence in court on July 2; 0 We would hope to receive assurance ?om the Guardian that it will be ?ling an application-brief to support msealing regardless of what FB may do as a result of your decision to publish now - the most important thing for mu- :r .n nk?azrl *La} ?knra "a Mina-a? On fur Ann?znn nuakun A?ka.? ?17: u: UUla?l )uyyull. LLIC JUUBC mat UICDC mum) 01C um lU um ungumg PUUIIL ucumc. VVC won't do anything to jeopardize that goal so would need your ?rm commitment on this. We don't want to win any battles only to lose the war. Hope this is helpful context. Look forward to discussing tomorrow. Torn On Morn May 21, 2018 at 2:38 PM?nguLanow wrote: Hi all. Thanks so much for your time in various ways today. Great to meet Ted and hear more about the ?ght so So. I thought it might be helpful to lay out our thoughts at the moment. This is all up for debate depending on what you think- The aim is to do this in accordance with what you want with the intention of trying to be as impactful as possible. To that end we thought Zuck's evidence to the EU parliament tomorrow evening is an ideal hook for doing a set of ?rst reports - based on the publicly available docs. We could time the web publication for when luck is about to, or is in the process of, giving aidence. I've talked at length with my colleague?nd my editor-and we thought the ideal would be: - A main news story. This focuses on the central allegations laid out in the ?lings. W'hat Facebook is trying to do to stop the underlying docs being made public. The Guardian's decision to ?le a brief in support in concert with other news orgs. And - ideally - some supporting quotes from-I understand these need to be anonymous but it would still be really useful to have these I think. - A secondary news story that focusses on the privacy abuses, mass data harvesting via Android etc. - And, ideally= a background piece that is a bit more discursive. This would have something about the legal ?ght so far, the other developers affected, the coming Facebook PR offensive etc. It would just be more colour?iL easy-to- read This is all working on the assumption that you don't wish to go on the record as yet - though maybe there's a quote about the legal ?ght= or your con?dence in being vindicated etc that you might consider - but uses a bit of information on background 50. there's a bit of an explanation that lays out the uphill battle it's been to get this far and what Facebook's blocking moves have been- But up to you. Ifthis does sound like a good plan. I'd ideally need to speak to you early UK time. We'd need to sell this into the Guardian news desk early so they are prepped and ready to run. As well as launching online tomorrow pm, we'd also try and get you on the ?ont page for Wednesday am and if so= that needs to be teed up as early as possible in advance. I think the timing is good, because unless there's another big news event (always possible) luck is probably the front page news anyway. I'd also be interested in learning more about the ins and outs of the ?ling as I think that may make an interesting focus in terms of Facebook's blocking moves. Anyway, I'll leave this with you but if tomorrow UK morning (I can do as early as necessary) works for you. that would be ideal. But obviously I understand you all have busy schedules and in which case, we can delay until later. This e-mail and all attachments are con?dential and may also be privileged. lfyou are not the named recipient. please notify the sender and delete the e-mail and all attachments immediately. Do not disclose the contents to another person. You may not use the information for any purpose, or store. or copy. it in any way. Guardian News Media Limited is not liable for any computer viruses or other material transmitted with or as part of this e-mail. You should employ virus checking software. Guardian News Media Limited is a member of Guardian Media Group plc. Registered Of?ce: PO Box 68164. Kings Place. 90 York Way, London. N1P 2AP. Registered in England Number 908396 This e-mail and all attachments are con?dential and may also be privileged. lfyou are not the named recipient. please notify the sender and delete the e-mail and all attachments immediately. Do not disclose the contents to another person. You may not use the information for any purpose. or store, or copy. it in any way. Guardian News Media Limited is not liable for any computer viruses or other material transmitted with or as part of this e-mail. You should employ virus checking software. Guardian News 8 Media Limited is a member of Guardian Media Group plc. Registered Of?ce: PO Box 68164, Kings Place, York Way, London, N1P 2AP. Registered in England Number 908396 This e-mail and all attachments are con?dential and may also be privileged. If you are not the named recipient. please notify the sender and delete the e-mail and all attachments immediately. Do not disclose the contents to another person. You may not use the information for any purpose, or store, or copy, it in any way. Guardian News 8. Media Limited is not liable for any computer viruses or other material transmitted with or as part of this e-mail. You should employ virus checking software. Guardian News 8. Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164. Kings Place. 90 York Way, London. N1P 2AP. Registered in England Number 908396 This e-mail and all attachments are con?dential and may also be privileged. lfyou are not the named recipient. please notify the sender and delete the e-mail and all attachments immediately. Do not disclose the contents to another person. You may not use the information for any purpose, or store, or copy, it in any way. Guardian News 8. Media Limited is not liable for any computer viruses or other material transmitted with or as part of this e-mail. You should employ virus checking software. Guardian News 8. Media Limited is a member of Guardian Media Group plc. Registered Of?ce: PO Box 68164, Kings Place, 90 York Way. London. N1P 2AP. Registered in England Number 908396 36006403 EXHIBIT 20 From: Sent time: 057317.018 0124729 PM To: Thomas Swamell?o Cc: ?gma?dcow David Godkjn; Stuart Gross James szer Subject: Re: FB Motion to Seal 80 its unlikely the documents will be released today, correct? Thats what our lawyers are telling us. Sent from my iPhone On May 31, 2018. at 5:17 PM. Thomas Scaramellino wrote: 33> We are still waiting to hear back from the clerk. Most likely scenario is we stick with current plan of ?ling amicus brief. We will let you know. They ?led their belated motion to seal late last night. Please see attached. Let's setup a call to discuss. circulate with your team. Best. Tom <2018.05.30 FINAL Miller Decl ISO FB's to Seal.pdf> (2018.05.30 FINAL PO Granting FB's to Seal.pdf> 4201805310 FINAL Proof of Service.pd'f> 36002164 (2018.05.30 FINAL FB's NOM and to Seal MPA.pdf> EXHIBIT 21 From: -_openmarketsinstimte.org> Sent time: 03 31 2018 02:49:41 PM To: Thomas Sofamellmo Cc: James Kruzer, David Godkin; Stuart Gross Subject: Re: FB Motion to Seal Thanks, Thomas. Do you (or one of your colleagues) have time to chat tomorrow? From: Thomas Scaramellino Sent: Thursday, May 31, 2018 12:21:19 PM To:? Cc: James Kruzer; David S. Godkin; Stuart Gross;? Subject: FB Motion to Seal We are still waiting to hear back from the clerk. Most likely scenario is we stick with current plan of ?ling amicus brief. They ?led their belated motion to seal late last night. Please see attached. Let's setup a call to discuss. I am very busy today but perhaps one of the other attorneys has time today. Ifnot= I'm available or over 'What is your status on ?ling a brief? Best: Tom 36002165 EXHIBIT 22 Sent time: 05 16 20180-114500 To: Thomas Scaxamellino David Godkin Cc: -@politico.eu Subject: Contact Hi all. -meet Thomas and David who are involved in the Six4Three litigation Thomas. David, meet- who works at POLITICO Europe (very connected to the Brussels sphere). We should organise a call One aspect that would de?nitely be in the public interest. and is not developed so far in the case. is to highlight how data protection laws can be used to further entrench the advantages of platforms. This would be particularly salient in the application of Article 20 on data portability of the GDPR. a very forward looking problem Here are some tweets exchanged in March around the Cambridge Analytica scandal. They show how Alex Stamos (CSO FB) thinks of app access as enabling data portability But of course as he says. he "work[s] on security not strategy" I assume that means he doesn't control the developer terms. which can of course be used to slip in more (anti-competitive) conditions. BG000149 EXHIBIT 23 rm: ?@me.com> Sent time: 04.30.2018 04:59:46 PM To: David Godkin Subject: Re: 643 v. Faeebook 'fh?e editors are considering: I?ll-let-you k_now. _We may need?total}; Im not yet to?go said= haven?t read everything yet- On Apr 30= 2018= at 12:38 PM, David Godkin wrote: As discussed, we are filing an opposition to the defendants' motions on 5/17 that will contain approximately 2,000 pages of evidence supporting our position that the conduct we allege in our complaint, namely that Facebook?s entire business today, and virtually all its privacy scandals these past few years, are the fruits of a bait and switch scheme designed by Zuckerberg in 2012 to keep Facebook's business from collapsing by weaponizing user data in a manner that defrauded developers and users. This evidence goes to the very heart of the Cambridge Analytica scandal, and much more. These motions will be heard on Monday, July 2, at 9 am. Facebook and the individual defendants will move to seal the evidence we submit no later than 5/25. if Bloomberg would like to convince the Court that this evidence should be available to the public, you should file a motion seeking permission to participate as amicus curiae. Your motion, along with your proposed amicus brief, must be filed and served by June 6 so that it can be heard by the Court on July 2 at the same hearing at which the Court will consider numerous motions in the case. If the Court denies the motion to seal, the evidence would be transferred immediately to the public case file. There is a strong public interest argument here. (In my view, the public interest argument doesn't get much stronger when you're talking about conduct that defrauds 1/3 of the world's population and tens of millions of businesses.) Please let me know asap whether you intend to file a motion seeking leave to file an amicus brief. Our team could prepare a draft motion or template if that would be helpful. I look forward to hearing from you. David From: me.com> Sent: Saturday, April 28, 2018 6:40 PM To: David Godkin Subject: Re: 643 v. Facebook David. Good meeting you yesterday. Look forward to reading the amended complaint. Hoping it will shed some light on Facebook's policies. Sent from my iPhone On Apr 28, 2018, at 11:23 AM, David Godkin wrote: It was nice to meet you yesterday. i have attached the Fifth Amended Complaint which is the operative complaint on file and publicly available, as well as a much shorter summary with cites to the Fifth Amended Complaint. If you would like to set up a call with my client on background, please let me know. Regards, David Godkin Fifth Amended Complaint.pdf> 86000855 [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 24 From: David Godkin Sent time: 04 302018 03:21:32 PM To: James Kruzer. state.ma.us> _@sratems> Subject: RE: Connecting with David Godkin A case management conference was held this past Friday. We are filing an opposition to the defendants' motions on 5/17 that will contain approximately 2,000 pages of evidence supporting our position that the conduct we allege in our complaint, namely that Facebook?s entire business today, and virtually all its privacy scandals these past few years, are the fruits of a bait and switch scheme designed by Zuckerberg in 2012 to keep Facebook's business from collapsing by weaponizing user data in a manner that defrauded developers and users. This evidence goes to the very heart of the Cambridge Analytica scandal, and much more. These motions will be heard on Monday, July 2, at 9 am. Facebook and the individual defendants will move to seal the evidence we submit no later than 5/25. If you would like to convince the Court that this evidence should be available to the public, you should file a motion seeking permission to participate as amicus curiae. It might make sense for a number of the state AG's to join together for this purpose. Your motion, along with your proposed amicus brief, must be filed and served by June 6 so that it can be heard by the Court on July 2 at the same hearing at which the Court will consider numerous motions in the case. If the Court denies the motion to seal, the evidence would be transferred immediately to the public case file. There is a strong public interest argument here. (In my view, the public interest argument doesn't get much stronger when you're talking about conduct that defrauds 1/3 of the world's population and tens of millions of businesses.) Please let me know asap whether you intend to file a motion seeking leave to file an amicus brief. Our team could prepare a draft motion or template if that would be helpful. I look forward to hearing from you. David Godkin From: James Kruzer Sent: Wednesday, March 28, 2018 10:48 AM MassMail.State.MA.US>; David Godkin state.ma.us> Subject: RE: Connecting with David Godkin w- No problem. 1 pm tomorrow it is. We can use my dial-in: Best, Jim canon um not Sent: Wednesday, March 28, 2018 10:36 AM To: James Kruzer David Godkin Subject: RE: Connecting with David Godkin Hi James- Sorry for my delay on getting back to you ?we?ve been tied up. Can we grab time on 3/29 (Thursday) at 1pm? Thanks! From: James Kruzer Sent: Monday, March 26,2018 3:00 PM To: David Godkin MassMail.State.MA.US> MassMail.State.MA.US> Subject: RE: Connecting with David Godkin Hello- Following up on David's email, please let me know if there is a convenient time to discuss this matter during any of these windows: Tuesday, March 27: 10:00 am - 1:00 pm; 2:00 pm ?4:00 pm Wednesday, March 28: 10:00 am 3:00 pm; 4:00 pm ?5:00 pm Thursday, March 29: 10:00 am ?5:00 pm I look forward to speaking with you. Best, Jim From: David Godkin Sent: Monday, March 26, 2018 2:40 PM To: James Kruzer Subject: RE: Connecting with David Godkin Thanks-and nice to meet you as well, Unfortunately I will be in an arbitration starting tomorrow for the next few days, but I have copied my colleague Jim Kruzer who is working with me on the Facebook litigation. Jim will touch base with you, and hopefully I can speak with you when I free up. My ?rm has obtained extensive discovery of communications between Zuckerberg and numerous other Facebook executives and employees regarding Facebook's treatment of user data and third party developers from 2007 to 2015. I believe the information we have uncovered is highly relevant to the Cambridge Analytica investigation and demonstrates clearly that Facebook violated the privacy of MA citizens and its prior settlement with the FTC. have attempted to summarize the evidence below. This summary does not do the wealth of evidence we have obtained justice, which is why I'm hoping there is an appropriate mechanism for your staff to review this information to ensure your investigation and the public debate in Massachusetts around this issue is fully informed. Regards. David As you can see. there is a lot here. and it would take months or even years for your of?ce to obtain discovery ofthis information from Facebook. if at all. We hope to identify an appropriate mechanism for your of?ce to evaluate the evidence to come to its own conclusions regarding its impact on Facebook's culpability in the Cambridge Analytica matter From MassMail.State.MA.US> Sent: Monday, March 26,2018 11:04 AM To: state.ma.us>; David Godkin Cc: state.ma.us> Subject: Re: Connecting with David Godkin Thanks,- TJ and David? nice to meet you. Is there a good time tomorrow that-nd I can touch base on this? Thanks- From: Sent: Monday, March 26, 2018 10:30 AM To: David S. Godkin Subject: Connecting with David Godkin Dawd, thanks for reaching out. I am cooyini? in our team,? Both are -in our Consumer Drotection Dwisuon. From: Thomas Scaramellino Sent: Sunday, March 25, 2018 2:09 PM David S. Godkin Subject: Re: Do you want to give a call? Many thanks for the call just now, Please meet David Godkin. lead counsel in the litigation I mentioned. David's of?ce is right on Summer Street in Fort Point All best. TJ BG001330 [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 25 From: David Godkin Sent time: 0430:2018 03:24:31 PM To: Cc: James szer Subject: RE: Extensive evidence regarding Faoebook?s treatment of friend data and user privacy - A case management conference was held this past Friday. We are filing an opposition to the defendants' motions on 5/17 that will contain approximately 2,000 pages of evidence supporting our position that the conduct we allege in our complaint, namely that Facebook?s entire business today, and virtually all its privacy scandals these past few years, are the fruits of a bait and switch scheme designed by Zuckerberg in 2012 to keep Facebook?s business from collapsing by weaponizing user data in a manner that defrauded developers and users. This evidence goes to the very heart of the Cambridge Analytica scandal, and much more. These motions will be heard on Monday, July 2, at 9 am. Facebook and the individual defendants will move to seal the evidence we submit no later than 5/25. If you would like to convince the Court that this evidence should be available to the public, you should file a motion seeking permission to participate as amicus curiae. Your motion, along with your proposed amicus brief, must be filed and served by June 6 so that it can be heard by the Court on July 2 at the same hearing at which the Court will consider numerous motions in the case. If the Court denies the motion to seal, the evidence would be transferred immediately to the public case file. There is a strong public interest argument here. (In my view, the public interest argument doesn?t get much stronger when you're talking about conduct that defrauds 1/3 of the world's population and tens of millions of businesses.) Please let me know asap whether you intend to file a motion seeking leave to file an amicus brief. Our team could prepare a draft motion or template if that would be helpful. I look forward to hearing from you. David Godkin From?accord? Sent: Wednesday, March 28, 2018 7:35 AM To: David Godkin Subject: RE: Extensive evidence regarding Facebook?s treatment of friend data and user privacy Hi David Jim was not copied into your email. We might wait until your hearing is over or happy to further coordinate with him when we have his details. Many thanks From: David Godkin Sent: 28 Math 2018 12:30 To: 0c: Subject: Re: Extensive evidence regarding Facebook?s treatment of friend data and user privacy Thank you- I am in an arbitration heating for the next several days but am copying my colleague Jim szer who I believe mIl be in the of?ce and can coordinate. Sent from my iPhone On Mar 28: 2018: at 7:07 mt wrote: Dear David Thank you for your email and my apologies for the late reply to it. Your correspondence has now been passed on to the investigation team directly dealing with the Cambridge Analytica/FB file. They will be in touch shortly Best regards, From: David Godkin Sent: 22 March 2018 16:24 To? Subject: Extensive evidence regarding Facebook?s treatment of friend data and user privacy Commissioner Denham and Staff. My name is David Godlcin. My ?rm has obtained extensive discover",r of communications between Zuckerberg and numerous other Faceboolc executives and employees regarding acebook's treatment of user data and third part}.r developers ?'om 2007 to 2015. I believe the information we have uncovered is highly relevant to the Cambridge Analytica investigation and demonstrates clearl}r that Facebook violated the privacy of UK citizens and its prior settlement with the FTC . I have attempted to summarize the eu'dence below. This summaq does not do the wealth of evidence we have obtained justice: which is wh3?r I'm hoping we can speak with your of?ce to determine if there is an appropriate mechanism for your team to exahlate the evidence yourselves. I look forward to hearing from you. Regards: Dmid As you can see, there is a lot here: and it would take months or even years for ICO to obtain discovery of this information from Facebook. We hope to identifyr an appropriate mechanism for your team to access it and determine its relevance to your current efforts. BG001357 Sent from my iPhone [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 26 From: Daud Godkm Senttime: CU 30 2018 Io: _frc.gov> Cc: thomasscatamellinongailcom; James szer Subject: RE: Facebook Litigation A case management conference was held this past Friday. We are filing an opposition to the defendants' motions on 5/17 that will contain approximately 2,000 pages of evidence supporting our position that the conduct we allege in our complaint, namely that Facebook?s entire business today, and virtually all its privacy scandals these past few years, are the fruits of a bait and switch scheme designed by Zuckerberg in 2012 to keep Facebook?s business from collapsing by weaponizing user data in a manner that defrauded developers and users. This evidence goes to the very heart of the Cambridge Analytica scandal, and much more. These motions will be heard on Monday, July 2, at 9 am. Facebook and the individual defendants will move to seal the evidence we submit no later than 5/25. If you would like to convince the Court that this evidence should be available to the public, you should file a motion seeking permission to participate as amicus curiae. Your motion, along with your proposed amicus brief, must be filed and served by June 6 so that it can be heard by the Court on July 2 at the same hearing at which the Court will consider numerous motions in the case. If the Court denies the motion to seal, the evidence would be transferred immediately to the public case file. There is a strong public interest argument here. (In my view, the public interest argument doesn?t get much stronger when you're talking about conduct that defrauds 1/3 of the world's population and tens of millions of businesses.) Please let me know asap whether you intend to file a motion seeking leave to file an amicus brief. Our team could prepare a draft motion or template ifthat would be helpful. I look forward to hearing from you. David Godkin From: David Godkin Sent: Wednesday, March 21, 2018 7:14 PM To: ?@ftc.gov> Cc: Subject: Facebook Litigation Hi? My name is David Godkin. My firm has obtained extensive discovery of communications between Zuckerberg and numerous other Facebook executives and employees regarding Facebook's treatment of user data and third party developers from 2007 to 2015. I believe the information we have uncovered is highly relevant to the Cambridge Analytica investigation and demonstrates clearly that Facebook violated the prior FTC Order. I have attempted to summarize the evidence below. This summary does not do the wealth of evidence we have obtained justice, which is why I'm hoping we can speak briefly on a call to determine if there is an appropriate mechanism for your team to evaluate the evidence yourselves. I look forward to hearing from you. Regards, David BGOO I825 Sent from my iphone EXHIBIT 27 From: David Godkin Sent time: 0-1 302018 03:29:59 PM To: doj.ca.gov> Cc: Thomas Scaramellino James Kruzer Subject: RE: Facebook Litigation Following up: A case management conference was held this past Friday. We are filing an opposition to the defendants' motions on 5/17 that will contain approximately 2,000 pages of evidence supporting our position that the conduct we allege in our complaint, namely that Facebook?s entire business today, and virtually all its privacy scandals these past few years, are the fruits of a bait and switch scheme designed by Zuckerberg in 2012 to keep Facebook's business from collapsing by weaponizing user data in a manner that defrauded developers and users. This evidence goes to the very heart of the Cambridge Analytica scandal, and much more. These motions will be heard on Monday, July 2, at 9 a.m. Facebook and the individual defendants will move to seal the evidence we submit no later than 5/25. If you would like to convince the Court that this evidence should be available to the public, you should file a motion seeking permission to participate as amicus curiae. It might make sense for a number of the state AG's to join together for this purpose. Your motion, along with your proposed amicus brief, must be filed and served by June 6 so that it can be heard by the Court on July 2 at the same hearing at which the Court will consider numerous motions in the case. Ifthe Court denies the motion to seal, the evidence would be transferred immediately to the public case file. There is a strong public interest argument here. (In my view, the public interest argument doesn't get much stronger when you're talking about conduct that defrauds 1/3 of the world's population and tens of millions of businesses.) Please let me know asap whether you intend to file a motion seeking leave to file an amicus brief. Our team could prepare a draft motion or template ifthat would be helpful. I look forward to hearing from you. David Godkin From?awoi-ca-gow Sent: Thursday, April 05, 2018 7:18 PM Tozmdojcagow; David Godkin Cc: Thomas Scaramellino James Kruzer Subject: RE: Facebook Litigation Thank you, all. Here is my full contact info: From:? Sent: Thursday, April 05, 2018 4:16 PM To: David Godkin Goat: CC: Thomas Scaramellino coon)?; James Kruzer (krcizer?ttiir-?i cl Subject: RE: Facebook Litigation Thaniv: you Davad. My contact information oelow. Feel free to reacn out if there are any new developn?ients. i?m sure that we will be in touch soon. From: David Godkin con] Sent: Thursday, April 05, 2018 4:06 PM 5.1 cl 0 .ca.ecivCc: Thomas Scaramellino ?no-Ties comm: James Kruzer Subject: RE: Facebook Litigation Thanks for the call. I have attached the Protective Order, and the Word document request that we discussed. Tom's email is above and his phone is (917) 373-3557. You have my email; my office phone is (617) 307-6110 and cell is (617) 501-4159. My firm's website is cam with further information. Please do not hesitate to get in touch with any questions. Regards, David From: Sent: Wednesday, April 04, 2018 7:20 PM To: David Godkin Cc: Thomas Scaramellino 71>; Subject: RE: Facebook Litigation James Kruzer Dawd - Would 3 pm 9T be feasnole? Thank; 'I'ou, From: David Godkin Sent: Wednesday, April 04, 2018 3:35 PM E?do Eh:lci..i:a.eciv> Cc: Thomas Scaramellino .. Facial (aggro;- iido .ca gov); James Kruzer Subject: Re: Facebook Litigation I am out of town on Friday but if you are available tomorrow, I can speak at 11 PT or later. If tomorrow doesn't work, my colleague Jim Kruzer can be available on Friday between 9 and noon PT. Please let me know if any of these options work for you. Regards, David Fromov> Date: Wednesday, April 4, 2018 at 6:09 PM a 90> Subject: RE: Facebook Litigation Hello David, Thank; you for reaching out would you have some ?ne on iriday to speak: about this matter? From=? Sent: Tuesday, April 03, 2018 12:13 AM To: David Godkin - - Cc: Thomas Scaramellino sta Su ject: RE: Face ook Litigation ?53 C: David, T'nanT-t you. lam cooylng?u'vho is Handling this matter. From: Con!" trirlau Minn-h 2n 70152 DMI I Iluuy, l'lu'bll JV, LUJ-U LOLL I'l To: David Godkin Cc: Thomas Scaramellino Eidozca. ov> Subject: RE: Facebook Litigation Thank you, David. From: David Godkin Sent: Friday, March 30, 2018 1:00 PM Cc: Thomas Scaramellino Subject: Facebook Litigation I understand that you have spoken with Tom. I have attached the operative complaint against Facebook in San Mateo Superior Court, and a summary. I recommend starting with the summary. You or -sh0uld feel free to contact me orJim Kruzer. Regards, David Godkin Birnbaum Godkin, LLP (617) 307-6110 CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication. CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication. CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you 3&6881?t?il?e intended recipient, please contact the sender and destroy all copies of the communication. EXHIBIT 28 From: James szer Sent time: 055172018 06:28:41 PM To: -@obsenret.co.ul; .theguardiancom Cc: David 60%; Thomas Swamellino Ted Kramer Subject: Six4Three v. Facebook Application and Amicus Brief 01 Opp to Motions_1805 10 - publicpdf 01a DSG Decl. ISO opp to Anti-slapp motions all m. - Publicpdf Application for Leave to File Amicus Brief [template].docar Dear? Nice speaking with you both today. Please ?nd attached the redacted brief and redacted supporting declaration we ?led today in Opposition to Defendants' Motion. The unredacted versions of these documents include approximately 3.000 pages of evidence we are seeking to unseal at the July 2 hearing. Attachments: Please also ?nd attached a draft Application for Leave to File Amicus Brief and the Amicus Brief itself as Exhibit Ato the Application. This is a template that The Guardian should feel free to modify as it sees ?t and is intended solely to reduce the amount of time and money you need to spend in researching California state law and preparing the brief from scratch. The brief makes clear that The Guardian takes no position on the claims and defenses in the case and supports neither Party. Rather, your organization's sole purpose in ?ling the brief is to examine the evidence in light of the strong public interest in getting to the bottom of Facebook?s management of user data, particularly regarding third party access from 2012 to 2015. Please let us know when your counsel might be available for a call to discuss the brief and ?ling process. Afew items are worth mentioning at the outset: 0 The brief must be ?led with the clerk no later than June 6 to be heard on July 2. Many clerks in California trial courts are not familiar with amicus ?ling procedures, though ?ling an amicus brief is clearly permitted at the Court's discretion. 0 We recommend ?ling with the clerk well in advance of the June 6 deadline in case the clerk needs to be educated on this procedure. We are happy to assist in this. 0 We also recommend ?ling a courtesy copy directly with the Judge to ensure he is aware of your intent to ?le the brief. 0 The hearing is on July 2 at 9:00 am in Department 23 of the San Mateo Superior Court at 400 County Center. Redwood City. CA. We recommend having reporters at the hearing as the substantive motions will be argued at that time. Please contact me any time with any questions. I look forward to hearing from you. Regards. . 86007476 Jim Kruzer 1 2 3 4 5 6 7 8 9 10 11 12 Stuart G. Gross (#251019) Benjamin H. Klein (#313922) GROSS & KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94111 (415) 671-4628 sgross@grosskleinlaw.com bklein@grosskleinlaw.com Of counsel: David S. Godkin (admitted pro hac vice) James E. Kruzer (admitted pro hac vice) BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, MA 02210 (617) 307-6100 godkin@birnbaumgodkin.com kruzer@birnbaumgodkin.com Attorneys for Plaintiff, SIX4THREE, LLC, a Delaware limited liability company 13 SUPERIOR COURT OF CALIFORNIA 14 COUNTY OF SAN MATEO 15 16 SIX4THREE, LLC, a Delaware limited liability company, Plaintiff, 17 v. 18 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; JAVIER OLIVAN, an individual; SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1 through 50, inclusive, 19 20 21 22 23 24 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CIV 533328 Assigned For All Purposes To Hon. V. Raymond Swope, Dept. 23 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) HEARING DATE: July 2, 2018 HEARING TIME: 9:00 a.m. DEPARTMENT: 23 JUDGE: Hon. V. Raymond Swope FILING DATE: April 10, 2015 TRIAL DATE: April 25, 2019 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE / Case No. CIV 533328 BG007477 1 2 3 TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................... 4 I. ARGUMENT ......................................................................................................... 5 A. The Commercial Speech Exemption Applies .................................................. 6 B. Plaintiff Is Likely to Prevail On Its Section 17200 Claim ............................... 7 8 9 Page C. Plaintiff Is Likely to Prevail On Its Remaining Claims ................................... II. CONCLUSION ..................................................................................................... 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE / Case No. CIV 533328 BG007478 TABLE OF AUTHORITIES 1 2 CASES 3 Daugherty v. American Honda Motor Co., Inc., (2006) 144 Cal.App.4th 824 .................................................................................. 4 5 6 7 8 9 10 11 12 13 14 Page In re Tobacco II Cases, (2009) 46 Cal.4th 298 ............................................................................................ Scripps Clinic v. Superior Court, (2003) 108 Cal.App.4th 917, 940 .......................................................................... Smith v. State Farm Mutual Automobile Ins. Co., (2001) 93 Cal.App.4th 700 .................................................................................... STATUTES Bus. & Prof. Code, § 16727 ......................................................................................... Bus. & Prof. Code, § 17200 ......................................................................................... Cal. Code Civ. Proc. § 425.17...................................................................................... 15 OTHER AUTHORITIES 16 California Civil Jury Instructions (CACI) (2017) No. 303. ......................................... 17 California Civil Jury Instructions (CACI) (2017) No. 1900 ........................................ 18 19 20 California Civil Jury Instructions (CACI) (2017) No. 1901 ........................................ California Civil Jury Instructions (CACI) (2017) No. 1903 ........................................ 21 California Civil Jury Instructions (CACI) (2017) No. 2201 ........................................ 22 California Civil Jury Instructions (CACI) (2017) No. 3421 ........................................ 23 24 25 26 27 28 ii MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE / Case No. CIV 533328 BG007479 1 I. ARGUMENT 2 A. 3 Plaintiff incorporates the arguments raised in its oppositions to Facebook’s Anti-SLAPP The Commercial Speech Exemption Applies 4 Motion, including the applicability of the commercial speech exemption of Cal. Code Civ. Proc. 5 § 425.17(c) and the unprecedented untimeliness in asserting the Anti-SLAPP argument. 1 6 B. 7 Plaintiff has demonstrated that Zuckerberg and Facebook baited tens of thousands of 8 software companies with specific affirmative representations and partial disclosures of fact from 9 2007 to 2014 to induce them to invest capital and labor in building businesses on Facebook Plaintiff Is Likely to Prevail on Its Section 17200 Claim 10 Platform, which was critical to Facebook’s rapid growth from 20 million users in 2007 to over 11 two billion users today, including representations that Facebook Platform would: (1) operate as an 12 open and neutral platform to ensure a level competitive playing field for participating companies 13 (“developers”), both with respect to one another and Facebook; (2) maintain controls and 14 procedures that would ensure user privacy and enable developers who relied upon Facebook 15 Platform to do the same; (3) enforce such policies around user data and privacy in a neutral 16 manner and without regard for the amount of advertising a developer purchased from Facebook; 17 (4) provide an opportunity for companies to build stable businesses; (5) provide equal and neutral 18 access to Facebook’s Graph APIs, including the APIs relied upon by Plaintiff (User ID API, Full 19 Friends List API, Friends Permissions APIs and Newsfeed APIs), while at all times respecting the 20 privacy of user data and the right of a user to own and control her own data; and (6) enable 21 companies to grow their businesses by leveraging Facebook’s graph for organic user growth. 2 22 1 23 24 25 26 27 28 See Plaintiff’s Opposition to Facebook’s Special Motion to Strike (Anti-SLAPP) filed on December 12, 2017, Plaintiff’s Supplemental Opposition to Facebook’s Special Motion to Strike (Prong 1) filed on January 24, 2018, Plaintiff’s Reply to Defendant’s Supplemental Memorandum in Support of Anti-SLAPP Motion (Prong 1) filed on March 7, 2018, and Plaintiff’s Supplemental Memorandum of Points and Authorities in Opposition to Special Motions to Strike (Newport Harbor) filed on May 3, 2018. Declaration of David S. Godkin In Support of Plaintiff’s Request for Judicial Notice (“Jud. Not. Dec.”), ¶¶ 214-217, Exs. 213-216. 2 Declaration of David S. Godkin In Opposition to Anti-SLAPP Motions (“Dec.”), ¶ 2, Ex. 1, at 82:7-85:20; ¶ 3, Ex. 2, at 45:16-56:08, 75:21-79:20, 167:9-168:20; ¶ 4, Ex. 3, at 32:2-22, 73:774:20, 78:25-81:25; ¶ 5, Ex. 4, at 60:9-61:25; ¶¶ 11-14, Exs. 10-13; ¶ 181, Ex. 181. Jud. Not. Dec., ¶¶ 3-6, 9, 10, 13, 14, 54-61, 67, 68, 74, 75 (Exs. 2-5, 8, 9, 12, 13, 53-60, 66, 67, 73, 74) (“We’re 1 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE / Case No. CIV 533328 BG007480 1 These affirmative representations and partial disclosures were widely known in the consumer 2 software industry, and because of these statements, many companies decided to build their 3 businesses on Facebook Platform. Dec., ¶ 3, Ex. 2, at 90:6-92:14; ¶ 4, Ex. 3, at 21:1-22, 53:22- 4 54:17; ¶ 7, Ex. 6, 360:2-25; ¶ 76, Ex. 75. Facebook made these representations and partial 5 disclosures with the specific intent to induce companies to rely on Facebook Platform, which 6 greatly benefited Facebook. 3 Plaintiff relied on these representations and partial disclosures when 7 deciding to build its business on Facebook Platform. Dec., ¶ 9, Ex. 8, at 115-117; ¶ 10, Ex. 9, at 8 252. At no time did Facebook manage its Platform as a level competitive playing field that 9 respected user privacy; instead, unbeknownst to Plaintiff, Facebook and its senior executives 10 willfully, maliciously and arbitrarily violated these representations and failed to disclose facts that 11 materially undermined them in order to leverage its Platform as a weapon to unjustly enrich 12 Facebook and its senior executives by willfully violating the privacy of Facebook users and 13 architecting a scheme to blame developers for Facebook’s own repeated privacy violations. 4 14 Facebook architected its Platform in a manner designed to violate user privacy as early as 15 2009, which entailed: (1) separating the privacy settings for data a user shared with friends in 16 apps the user downloaded (“user data”) with the privacy settings (“Apps Others Use” settings) 17 for data the user shared with friends in apps the friends downloaded (“friend data”) (Jud. Not. 18 Dec., ¶ 32, Ex. 31, Federal Trade Commission Complaint, at 4-7); (2) hiding the Apps Others 19 Use settings to ensure most Facebook users were not aware that these settings were distinct from 20 the main privacy settings (Id., at 4-9); (3) making the default setting for sharing data with Apps 21 22 23 24 25 26 27 28 very optimistic that if you were choosing to develop a service, you would choose to do with us. We really consider ourselves a partnership company. And that means that we want to take social companies and make them big, and big companies and make them social, because we think bringing what Facebook provides, which is your friends, makes every service better” (Sheryl Sandberg, July 26, 2012 Quarterly Earnings Call, Ex. 57)). 3 Dec., ¶ 2, Ex. 1, at 125:7-130:14, 268:6-272:4; ¶ 3, Ex. 2, at 188:23-189:15; ¶ 4, Ex. 3, at 21:2322:2, 28:8-22, 40:14-41:14, 59:2-61:4; ¶¶ 15-17, Exs. 14-16. Jud. Not. Dec., ¶¶ 54-61 (Exs. 5360). 4 Dec., ¶ 3, Ex. 2, at 99:11-120:4, 125:19-131:20; ¶ 18, Ex. 17; ¶ 139, Ex. 138; ¶ 172, Ex. 172; ¶¶ 177-180, Exs. 177-180; ¶ 188, Ex. 188; ¶ 197, Ex. 197. 2 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE / Case No. CIV 533328 BG007481 1 Others Use set to “on” so Facebook could funnel more data to developers under the guise of user 2 consent (Id., at 7-11); and (4) deliberately failing to pass privacy settings for data transmitted to 3 developers via Facebook’s APIs, signaling to developers that all friend data was public and could 4 be treated as such. Dec., ¶ 117, Ex. 116; ¶¶ 155-157, Exs. 155-157; ¶ 174, Ex. 174; ¶ 191, Ex. 5 191; ¶ 192, Ex. 192; ¶¶ 194-196, Exs. 194-196. Jud. Not. Dec., ¶¶ 29-36, 177 (Exs. 28-35, 176). 6 Facebook did not comply with the FTC Order to eliminate this artificial distinction between 7 “user data” and “friend data” that allowed Facebook to funnel friend data en masse to developers 8 without concern for privacy restrictions. To address the FTC Order, all Facebook had to do was: 9 (1) combine the privacy settings for apps downloaded by a user and apps downloaded by the 10 user’s friends in the main privacy page (instead of hiding the Apps Others Use page); (2) change 11 the default data-sharing setting from “on” to “off”; and (3) include the privacy setting of a piece 12 of data when sending that data to developers through its APIs. Instead, Facebook shirked the 13 FTC order by expanding upon its intentionally flawed privacy design more urgently than ever to 14 ensure Facebook had a valuable trading tool that would convince developers to make entirely 15 unrelated purchases in Facebook’s new mobile advertising product, which saved Facebook’s 16 business from collapsing in late 2012 and early 2013. In short, Zuckerberg weaponized the data 17 of one-third of the planet’s population in order to cover up his failure to transition Facebook’s 18 business from desktop computers to mobile ads before the market became aware that Facebook’s 19 financial projections in its 2012 IPO filings were false. Jud. Not. Dec., ¶¶ 37, 82, 96 (Exs. 36, 81, 20 95). The flawed design also enabled Facebook to state in 2014 that a user could not consent to 21 share data with friends in any app other than Facebook – a remarkable claim since Facebook held 22 the exact opposite position for seven years – but one that served as a convenient privacy-focused 23 excuse to eliminate competitors to its new products in video, photo, messaging, contact 24 management, e-commerce, payments, and now dating. 5 25 Zuckerberg’s scheme made it impossible for Plaintiff’s business and thousands of other 26 businesses to succeed on Facebook Platform and directly resulted in the widely reported scandal 27 in which a developer, Cambridge Analytica, used Facebook data to influence the 2016 28 5 Dec., ¶ 120, Ex. 119; ¶ 133, Ex. 132; ¶ 160, Ex. 160. Jud. Not. Dec., ¶ 53, 201 (Exs. 52, 200). 3 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE / Case No. CIV 533328 BG007482 AWN Presidential election allegedly on behalf of the Russian government.6 The evidence rmcovered by Plaintiff demonstrates that the Cambridge Analytica scandal was not the result of mere negligence on Facebook?s part, but was rather the direct consequence of the malicious and fraudulent scheme Zuckerberg designed in 2012 to cover up his failure to anticipate the world?s transition to smartphones. This scheme caused so much internal chaos at Facebook- constitutes a far greater abuse than the Cambridge Analytica matter being investigated by federal and state authorities in which 87 million consumers had their data transferred to Russian entities. This conduct implicates the rights of one-third of the world?s population, and yet remains sln?ouded from public View. Jud. Not. Dec.. 1111 90, 111 (Exs. 89: 110). At least by 2012, Zuckerberg personally oversaw a practice to weaponize Platform APIs, including a wide range of user and friend data, by inducing companies to rely on this data and then tln'eatening to remove access unless these companies made exorbitant purchases in Facebook?s nascent mobile advertising product, known internally as ?Neko? ads and publicly as ?Mobile App Install? ads. Jud. Not. Dec., 1111 7, 8, 77, 78 (Exs. 6. 7, 76, 77). Zuckerberg blacklisted any companies that refused to buy these Neko ads in exchange for continued access to data that Facebook claimed for years was publicly available at no charge. This blacklisting practice also applied to companies that Zuckerberg in his sole discretion considered competitive with current or futru'e Facebook products, even products Facebook had not yet built, and notwithstanding that most of these developers operated entirely within Facebook?s rules.7 6 Jud. Not. Dec.. 111124-28, 108,110. 113, 114,116. 134, 141,143. 155, 158,163. 164, 167-170., 175,176,181-186, 188,190, 192, 194-198, 200. 201 (Exs. 23-27. 107.109. 112. 113.115. 133. 140,142,154. 157,162,163. 166-169.174. 175.180-185.187. 189. 191. 193-197. 199. 200). 7 Dec.. 11 2. EX. 1. at 177:14-181:20. 195118-19917. 231:25-233118. 5. Ex. 4. at 79:14-84:17. 139:13-145zl3. 19-26. Exs. 18-25: 111142-45 Exs. 41-4411 165% 4 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 8? SPECIAL MOTIONS TO STRIKE Case No. IV 533328 BG007483 DJ Zuckerberg?s decision to weaponize a platform economy that Facebook represented for years as open. fair and neutral stemmed from a simple fact that by 2012 had devastating consequences for Facebook: people began accessing the Internet primarily from their phones, but Facebook had built its advertising business for desktop computers. which caused Facebook?s revenues and stock price to plummet. Facebook lost over $200 million in the second and third quarters of 2012 because it had no mobile advertising business.8 By mid-2012. Facebook?s most senior executives9 explored ways to leverage the fact that hundreds of thousands of companies relied 01] Facebook Platform in order to reboot its business for smartphones, presenting various options for restricting public Platform APIs to its Board of Directors in August 2012. including: 32-41, Exs.. 31-4OL1I 159, Ex. 159:1] 193. Ex. 193. In November 2012. after many months of discussion. Zuckerberg made his ?nal decision to implement a version of the reciprocity policy called ?full reciprocity,? instead of implementing a public pricing program like Twitter or a revenue share model like the neutral platfonns operated by Apple and Google - the top Platf01m 8 In mid-2012. mobile advertising accounted for 0% of Facebook?s total revenues and yet today, as a direct result of the scheme at the heart of Plaintiff complaint. mobile advertising makes 11p approximately 90% of Facebook?s total revenues. This has been referred to as one of the most ?mindblowing? growth trajectories of any business in history. Dec., 1111 26-31. Exs. 25-30; 11 152. Exs. 151-152. Jud. Not. Dec..1Hl 37-43. 56. 58, 62-66, 69-72, 82, 96-98. 178, 197 36-42. 55. 57., 61-65., 68-71., 81., 95-97., 177., 196). 9 The executives involved in these discussions in 2011 and 2012 include but are not limited to: Zuckerberg, Olivan. ox, Lessin, Sandberg. Bosworth, Rose. Ebersman. Wehner. Stretch. Badros and Fischer. See, Dec., 11 48, Ex. 47 (EB-00917792). 5 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 8? SPECIAL MOTIONS TO STRIKE Case No. IV 533328 BG007484 ?00\l0executive, Vernal, referred to this decision as - outside Zuckerberg?s presence. 10 Zucker'berg?s full reciprocity policy caused Facebook?s privacy and policy apparatus to disintegrate in favor of an arbitrary enforcement enviromnent in which Facebook offered user data, and in particular friend data, to certain developers that were willing to reciprocate with Facebook, typically by agreeing to pru?chase no less than $250,000 per year in run'elated Neko ads, while other developers that Facebook considered competitive were blacklisted from accessing this data even though they never broke any rules or violated anyone?s privacy. Dec.,1111 50-52, Exs. 49-51. Facebook publicly announced an intentionally vague reciprocity policy in January 2013 that refused to de?ne a ?competitive? service or ?core functionality? in order to mislead companies into thinking that only online social networks g. MySpace, LinkedIn) would be considered competitive; but Facebook?s internal de?nition of a competitive service included Virtually every kind of consumer application, including those acebook explicitly induced in its reciprocity annomrcement to continue using APIs it had ah'eady decided to shut down. Dec., 11 53, M. Jud. Not. Dec., 1111 10, 11, 12, 73 (Exs. 9, 10, 11, 72).11 This enabled Facebook to use its policies as an excuse to eliminate any developer for any reason whatsoever. Dec., 1111 53-54, Exs. 52-53. 5, Ex. 4, at 86:4-93:16, 102:7-103zl4z1111 46-52, Exs. 45-51;11 67, Ex. 66:11 173, Ex. 173. 11 Facebook has claimed in two sets of veri?ed discovery responses that it never had a reciprocity policy and that no documents with the term ?reciprocity? exist in its ?les, notwithstanding that its public announcement of the reciprocity policy is readily available on the Internet and Facebook has produced of emails that discuss this reciprocity policy. Jud. Not. Dec., 11 10, (before the armorurcement of the reciprocity policy, section 1.10 of Facebook Platform Policies, part of the adhesion contract Plaintiff entered into with Facebook, stated: ?Competing social networks: You may not use Facebook Platform to export user data into a competing social network?); 11 11, Ex. 10 (011 January 25, 2013, Facebook annormces the reciprocity policy as an update to section 1.10, stating that ?the vast majority of developers building social apps? should ?keep doing what you?re doing," and that this applies to ?music, ?tness, news and general lifestyle apps,? but that a ?much smaller number of apps? are trying to ?replicate oru? functionality? and Facebook has ?had policies against this that we are fruther clarifying today,? linking to the new 6 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 8? SPECIAL MOTIONS TO STRIKE Case No. CIV 533328 BG007485 DJ ?Jl - Dec.. 11 2. Ex. 1. at 20412-20916; 11 55-57. Exs. 54-56: 11 176. Ex. 176.- Dec..1l 2. Ex. 1. at 2522254213; 11 62. Ex. 61.? 1.10 section): 11 12. Ex. 11 (the new I. 10 section reads: ?Reciprocity and Replicating core functionality: Reciprocity: Facebook Platform enables developers to build personalized. social experiences Via the Graph API and related APIs. If you use any Facebook APIs to build personalized or social experiences. you must also enable people to easily share their experiences back with people on Facebook. Replicating core functionality: You may not use Facebook Platform to promote. or to export user data to. a product or service that replicates a core Facebook product or service without our permission?): 11 203. Ex. 202. at 4-12 (Facebook?s Supplemental Response to Plaintiffs Third Demand for Production: ?Facebook states that it does not have a ?data reciprocity policy.? and no such documents and communications exist? that contain the terms ?data reciprocity? or ?reciprocity?); 11 73. Ex. 72 (media reports 011 Facebook?s announcement of the reciprocity policy in January 2013). 13 Dec..112. Ex. 1. at 8624-93216. 15126-153210. 16825-16921. 20412-20916. 22622-2282311146. Ex. 45:11 58-60. Exs. 57-59. 13 Dec..1l 4. Ex. 3. at 14:25-15:14. 65:3-25. 70:2-71:13. 8228-9421. 96:15-108216; 11 60-61. Exs. 5960:1111 202-204. Exs. 202-204. Jud. Not. Dec.. 111 14-20. 56. 58 (Exs. 13-19. 55. 57). 7 MEMORANDUIVI OF POINTS AND AUTHORITIES IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE 1" Case No. CIV 533328 BG007486 AWN Plaintiff would not have built its business on Facebook Platform and Cambridge Arralytica would not have used Facebook data to steer the election towards Donald Trump. Put simply, Zuckerberg did not anticipate how quickly people would start using phones to access the Internet, so he took desperate, ?'audulerrt measru'es to save his failing ads business in 2012. The ?full reciprocity? policy was 1mworkable as an actual policy but was extremely effective as a ?get out of jail free? card by giving Facebook: (1) an excuse to tln?eaten to or actually shut down certain developers unless they pru?chased mobile ads or provided other consideration Facebook deemed valuable in its sole discretion; (2) the ability to blame developers for privacy violations related to data Facebook chose to ?mnel to developers without any privacy controls; and (3) cover to continue to induce developers to rely 011 the very APIs Zuckerberg had decided to privatize in 2012 in order to gain more leverage. 14 Under cover of the full reciprocity policy, the Growth team (Olivan) illegally accessed non-public information about competitive applications in order to monitor their popularity and then directed the Platform tearn (Vernal) to shut down an application once it became widely used. 15 By early 2013, armed with an of?cial reciprocity policy vague enough for Zuckerberg to consider any company a criminal. the initial pay-to-play tests began paying off as Neko ads grew faster than anyone?s wildest expectations. Dec..11 158, Ex. 158; 11 164, Ex. 164. In light ofthis success.? Dec..11 75. Ex. 74; 1111 166-167. Ex. 166-167. 14 Dec..11 2. Ex. 1. at 168:5-169:1. 214:13-217211. 63-68, Exs. 6267:1111 168-171. Ex. 168-171111 173. EX. 173. 15 Olivan accomplished this by monitoring apps installed on the phones of 30 million people who had installed Onavo, a virtual private network app that Facebook bought in 2013; Olivan was able to track highly sensitive information about at least 82.000 software applications as a result of Violating the privacy of these 30 nrillion people. Dec., 11 2, at 52:9-53: 12; 1111 69-73. Exs. 68- 211111 147-150.Exs. 146-149. Jud. Not. Dec..1111 100, 139. 142 (Exs. 99: 138: 141). 8 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SPECIAL MOTIONS TO STRIKE Case No. IV 533328 BG007487 Dec..1123.Ex.22;11161.Ex.161.- Dec..11 74. Ex. 73.16 Dec..11 5. Ex. 4. at 191:22-193:14. 222:23-226:16:1111 76-79. Exs. 75-78. Dec..11 5. Ex. 4. at 218:22- 219:19; Dec..1111 80-82. Exs. 79-81z1111 189-190. Exs. 189-190.18 By December 2013- Dec..11 5. Ex. 4. at 298:10-306:7. 17 Dec..114. Ex. 3. at 134:13-135:20. 145:03?150:12; Dec..11 6. Ex. 5. at 153214-154z24. 161:12- 177:20: Dec..1111 75-76. Exs. 74-75. Facebook broke Tinder?s app as recently as April 2018. and then announced it was building its own dating apps to compete with Tinder 011 May 1. 2018. Dec..11 85. Ex. 84:11 98. EX. 97:11 103. Ex. 102;11190.Ex. 190:11 192. EX. 9 MEMORANDUIVI OF POINTS AND AUTHORITIES IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE 1" Case No. IV 533328 BG007488 DJ 'Jl the ones Cambridge Analytica and Russia used to steer the 2016 Presidential election towards Donald Trump). Dec.. 11 4. Ex. 3. at 187: 13-18818311-18416. 22713-23022; '1 101. BX. 100. Facebook employees- Dec.. 11 4. Ex. 3. at 160106- ll ?ll?EX- 101? Dec.. 11 10. Ex. 9. at 199:1-206zl8: 117 103-104. Ex. 102-103. Dec.. 1m 105-111. Ex. 104-110.- Dec._ 1111 112-113. Ex. 111-112. 199-201. Jud. Not. Dec..1l 85.. 86. 201 (Exs. 84. 85.200). 19 Dec..1l 4. Ex. 3. at 57:21-58:4. 167:25-178:05. 196:14-199z8. 201:10-203zl3. 2188-2191811 1213?1271. 172:18-176:4; 84?100. Exs. 83- 2. 10 MEMORANDUIVI OF POINTS AND AUTHORITIES IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE 1" Case No. CIV 533328 BG007489 Dec..?1 110:11114.Ex. 113LT 151.1331. 150. 212. Ex. 212. In the second halfof2013. Dec.? 118? 198- in], 205211, Exs. 205-211. The fraudulent nau'ative was known intemally as the iv .5 Dec. 123-130. Ex. 122-129; 11 1332 Ex. 132; 1] 160. BX. 160. Jud. Not. Dec. Dec..?f127?128.Exs. 126-127. 11 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE Case No. 533328 86007490 DJ Dec.. 1111 131?132. 130-131.21 Zuckerberg?s April 30. 2014 public armomicement of the API restrictions and Facebook?s official blog post continued to 111isrepresent material facts and conceal facts that undermined the facts disclosed. including: (1) concealing the speci?c APIs being restricted and instead representing falsely that some ?rarely used? APIs were being deprecated.? Dec..1l 4. Ex. 3. at 53:15-21. 61:11-62:13. 207:21-209:12; 11 5. Ex. 4. at 25:6-28225; 119:7-16. 151:21-152218: Dec.. 1111 133-135. Ex. 132-134; 11 162-163. EX. 162-163; .Dec..11136.Ex. 135; and (3) Dec.. 1111 137-138. Ex. 136-137. Facebook?s defense that the API restrictions were implemented exclusively to protect user trust and piivacy is plainly false as: (1) the Login revamp applied only to apps downloaded by that user. whereas the anti-competitive API restrictions applied to apps downloaded by that user?s friends: (2) a user already had the ability for many years to control whether their friends could access the user?s data in third-party applications. but Facebook hid these controls and set the default to ?on? in order to fabricate consent; and (3) - 21 After shutting down many competitive apps. Facebook quickly begins to dominate a wide range of new markets. including video. local commerce. payments. messaging. and much more. such that 4 of the top 5 apps worldwide quickly become Facebook apps and venttu?e capital funding in consumer software startups plummets. Jud. Not. Dec.. 1111 76. 79. 89. 99. 102. 105. 106. 109. 112. 117. 118. 120. 128-130. 138. 144-149. 165. 166 (Exs. 75. 78. 88. 98. 101. 104. 105. 108. 111. 116. 12 MEMORANDUIVI OF POINTS AND AUTHORITIES IN OPPOSITION TO SPECLAL MOTIONS TO STRIKE 1" Case No. CIV 533328 BG007491 AWN 2012 scheme to weaponize data as a way of gaining leverage over developers in order to force them to buy mobile ads resulted in countless privacy issues reported by the media, which Facebook remarkably used as cover to shut down developers that had always abided by the rules.23 In other words, Facebook was able to unjustly em?ich itself both ?'om the 2012-2014 pay- to-play scheme that saved its advertising business and from the inevitable privacy violations the scheme caused! Facebook reaped the bene?ts of transitioning its ads business to phones and wiping out competition to make room for a wide range of new Facebook products. Plaintiff has demonstrated that defendants? conduct violates all three prongs of Section 17200. Defendants? conduct violates the ?rurfair? prong under any of the three standards as defendants represented a fair and open platform and then em'iched themselves by maliciously, rmethically, oppressively and pruritively operating a closed platform that took advantage of the reasonable reliance of millions of consruners and tens of thousands of companies to their substantial detriment and with no corurtervailirrg bene?t.24 Defendants? conduct violates the ?1mlawful? prong as the bait and switch scheme triggers a variety of predicate violations, including common law tort and fraud, California?s misrepresentation and conceahnent statutes, alifomia?s false advertising law, and the July 27, 2012 FTC Order directing that defendants? ?shall not misrepresent in any manner. . .the extent to which it maintains the privacy or security of covered information.?25 Plaintiff has also met its bru'den on the ?fraud? prong. See In re 22 Dec.,11 2, Ex. 1, at 64:22-76:10, 4, Ex. 3, at 94:3-95:12, 123:20-125z08, 127:02-127z25, 128:01-128:10, 138:1]172, Ex. 177-180;1] 188% 188. 23 Jud. Not. Dec., 1123, 76, 79, 87, 131, 136, 139, 140- 143, 153-157, 159-162, 172-174, 179, 180, 189, 193, 199 (Exs. 22, 75, 78, 86, 87, 99, 100, 103. 19 1. 24 See Daugherty v. American Honda Motor Co, Inc. (2006) 144 Ca1.App.4th 824, 839; Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 a1.App.4th 700, 719; Scripps Clinic v. Superior Court (2003) 108 a1.App.4th 917, 940. 25 Jud. Not. DecFru'ther, Zuckerberg?s bait and switch scheme violates the Cartwright Act as Facebook maliciously tied its Platform APIs (the tying product) to its Neko l3 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SPECML MOTIONS TO STRIKE Case No. IV 533328 BG007492 1 Tobacco II Cases (2009) 46 Cal.4th 298, 312. An injunction is required as Facebook still induces 2 developers to build on its Platform by representing it as open and fair and has even extended its 3 Platform to Messenger using the same fraudulent playbook. 26 4 C. 5 Plaintiff has met its burden to prevail on its breach of contract action. CACI (2017) 303. 6 Facebook and Plaintiff entered into a standard adhesion contract, Facebook’s December 2012 7 Statement of Rights and Responsibilities (SRR). Dec., ¶ 146, Ex. 145; ¶ 4, Ex. 3, at 35:2-23; ¶ 6, 8 Ex. 5, at 22:17-23:12; ¶ 7, Ex. 6, at 45:4-21, 57:4-63:5. Plaintiff performed all of its obligations. 9 Dec., ¶ 5, Ex. 4, at 17:15-21, 19:1-20:8, 23:15-25:5, 37:19-25. Facebook failed to perform by Plaintiff Is Likely to Prevail on Its Remaining Claims 10 refusing to provide “all rights to APIs, data and code” that Facebook made available and 11 breached the contract by violating its representations of open, equal and fair access to its APIs 12 that fraudulently induced Plaintiff and others to perform under the contract. Dec., ¶ 146, Ex. 145 13 (Section 9.8); ¶ 5, Ex. 4, at 38:13-40:21; ¶ 7, Ex. 6, at 45:4-21, 219:23-222:1. Plaintiff and many 14 others were harmed, and Facebook’s breach was a substantial factor in the harm. Dec., ¶ 8, Ex. 7, 15 at 205:17-25; ¶ 7, Ex. 6, at 67:8-83:3, 98:10-99:4, 103:10-107:24; ¶ 3, Ex. 2, at 121:5-123:11. 16 Plaintiff has met its burden to prevail on its fraud claims. CACI (2017) 1900, 1901, 1903. 17 Defendants made numerous representations of fact to Plaintiff they knew to be false around 18 managing a level competitive playing field while intentionally and systematically tilting that 19 playing field in its favor to the detriment of tens of thousands of startups and small businesses. 27 20 21 22 23 24 advertising product (the tied product), which are entirely unrelated and distinct products. Facebook refused to offer the Platform APIs unless companies purchased Neko advertising. Facebook had sufficient economic power in the market for Platform APIs (it was the sole provider of these APIs) to coerce companies into purchasing Neko advertising, and the tying arrangement prohibited an estimated 40,000 companies from purchasing advertising (the tied product) as they no longer had products to advertise. CACI (2017) 3421 (Bus. & Prof. Code, § 16727); Dec., ¶¶ 140-144, Ex. 139-143. 26 26 Dec., ¶ 6, Ex. 5, at 26:1-29:4, 42:17-45:10; ¶ 145, Ex. 144; ¶¶ 183-186, Ex. 183-186. Jud. Not. Dec., ¶¶ 2, 21, 22, 80, 81, 83-86, 91-94, 103, 119, 122, 126, 127, 132, 133, 137, 138, 150-152, 171 (Exs. 1, 20, 21, 79, 80, 82-85, 90-93, 102, 118, 121, 125, 126, 131, 132, 136, 137, 149-151, 170). 27 27 25 28 Dec., ¶¶ 11-14, Exs. 10-13; ¶ 2, Ex. 1, at 82:7-85:20, 177:14-181:20, 195:18-199:7, 231:25233:18, 257:20-258:14; ¶ 3, Ex. 2, at 45:16-56:08, 75:21-79:20, 99:11-120:4, 125:19-131:20, 167:9-168:20; ¶ 4, Ex. 3, at 32:2-22, 73:7-74:20, 78:25-81:25; ¶ 5, Ex. 4, at 60:9-61:25. 14 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE / Case No. CIV 533328 BG007493 1 Defendants intended that Plaintiff rely on the representations. 28 Plaintiff reasonably relied on the 2 representations. 29 Further, Facebook and Plaintiff were in a business relationship. 30 Facebook 3 disclosed some facts but intentionally failed to disclose others known only to Facebook while 4 preventing Plaintiff from discovering certain facts. 31 Plaintiff did not know the concealing facts 5 and if they had been disclosed, Plaintiff would not have built its business on Facebook Platform. 6 Dec., ¶ 8, Ex. 7, at 162:13-163:16, 223:6-15. Plaintiff was harmed by this conduct. 32 7 Plaintiff has met its burden to prevail on its intentional tort action. CACI (2017) 2201. 8 Plaintiff maintained contracts with its users. Dec., ¶ 8, Ex. 7, at 181:23-183:9, 195:25-196:16. 9 Facebook knew of these contracts as its SRR required them. Dec., ¶ 6, Ex. 5, at 49:18-50:5. 10 Facebook knew it would disrupt and intended to disrupt Plaintiff’s contracts because Plaintiff 11 was included in the list of 40,000 apps audited in 2013 and 2014 that would break as a result of 12 Zuckerberg’s scheme. Dec., ¶ 6, Ex. 5, at 174:7-177:20; Dec., ¶ 4, Ex. 3, at 55:21-56:17, 122:14- 13 123:06, 231:18-233:24; Dec., ¶ 7, Ex. 6, at 108:1-111:13. Facebook’s conduct prevented 14 Plaintiff from performing in its contracts with its users. Dec., ¶ 8, Ex. 7, at 162:13-163:16, 223:6- 15 15. Plaintiff was harmed by this conduct. Dec., ¶ 8, Ex. 7, at 205:17-25; ¶ 10, Ex. 9, at 269:5-25. 16 II. 17 CONCLUSION For the foregoing reasons, Defendants’ Anti-SLAPP Motions should be denied on the 18 grounds of Cal. Code Civ. Proc. § 425.17 to ensure Facebook cannot further stay discovery and 19 jeopardize the trial date once again by appealing the Court’s Order. 20 28 21 22 23 24 25 26 27 Dec., ¶ 2, Ex. 1, at 125:7-130:14, 268:6-272:4; ¶ 3, Ex. 2, at 188:23-189:15; ¶ 4, Ex. 3, at 14:2515:14, 21:23-22:2, 28:8-22, 40:14-41:14, 59:2-61:4, 65:3-25, 70:2-71:13, 82:8-94:1, 96:15108:16; ¶¶ 15-17, Exs. 14-16; ¶¶ 60-61, Exs. 59-60. 29 Dec., ¶ 3, Ex. 2, at 90:6-92:14; ¶ 4, Ex. 3, at 21:1-22, 53:22-54:17; ¶ 7, Ex. 6, 360:2-25; ¶ 9, Ex. 8, at 115-117; ¶ 10, Ex. 9, at 252. 30 Dec., ¶ 146, Ex. 145; ¶ 4, Ex. 3, at 35:2-23; ¶ 6, Ex. 5, at 22:17-23:12; ¶ 7, Ex. 6, at 45:4-21, 57:463:5. 31 Dec., ¶ 2, Ex. 1, at 204:12-209:16; ¶ 4, Ex. 3, at 14:25-15:14, 21:23-22:2, 28:8-22, 40:14-41:14, 59:2-61:4, 65:3-25, 70:2-71:13, 82:8-94:1, 96:15-108:16; Dec., ¶¶ 53-57, Exs. 52-56. 32 Dec., ¶ 8, Ex. 7, at 205:17-25; ¶ 10, Ex. 9, at 199:1-201:1, 252, 269:5-25. 28 15 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE / Case No. CIV 533328 BG007494 1 2 DATED: May 17, 2018 GROSS & KLEIN LLP BIRNBAUM & GODKIN, LLP 3 4 By: /s/ David. S. Godkin Stuart G. Gross, Esq. David S. Godkin (admitted pro hac vice) James E. Kruzer (admitted pro hac vice) Attorneys for Plaintiff Six4Three, LLC 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE / Case No. CIV 533328 BG007495 1 PROOF OF SERVICE 2 I, Cheryl A. McDuffee, declare: 3 I am a citizen of the United States and employed in Suffolk County, Massachusetts. I am 4 over the age of eighteen years and not a party to the within-entitled action. My business address 5 is 280 Summer Street, Boston, MA 02210. On May 17, 2018, I served a copy of the within 6 document(s): 7 8 9 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE by electronic service, per the agreement of the parties, by emailing a true and correct copy through counsel’s email address to Defendant’s counsel of record at the email addresses set forth below.  10 11 12 13 14 15 16 17 Joshua H. Lerner (jlerner@durietangri.com) Sonal N. Mehta (smehta@durietangri.com) Laura Miller (lmiller@durietangri.com) Catherine Kim (ckim@durietangri.com) Durie Tangri (service-six4three@durietangri.com) 217 Leidesdorff Street San Francisco, CA 94111 P (415) 376 - 6427 Attorney for Defendant FACEBOOK, INC. 18 and 19 Judge V. Raymond Swope (By hand) Department 23 Complex Civil Litigation 20 21 22 23 24 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed May 17, 2018, at Boston, Massachusetts. 25 /s/ Cheryl A. McDuffee 26 Cheryl A. McDuffee 27 28 17 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE / Case No. CIV 533328 BG007496 1 2 3 4 5 6 7 8 9 10 11 12 Stuart G. Gross (#251019) Benjamin H. Klein (#313922) GROSS & KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94111 (415) 671-4628 sgross@grosskleinlaw.com bklein@grosskleinlaw.com Of counsel: David S. Godkin (admitted pro hac vice) James E. Kruzer (admitted pro hac vice) BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, MA 02210 (617) 307-6100 godkin@birnbaumgodkin.com kruzer@birnbaumgodkin.com Attorneys for Plaintiff, SIX4THREE, LLC, a Delaware limited liability company 13 SUPERIOR COURT OF CALIFORNIA 14 COUNTY OF SAN MATEO 15 16 17 18 19 20 21 22 23 24 SIX4THREE, LLC, a Delaware limited liability company, ) ) ) Plaintiff, ) v. ) ) FACEBOOK, INC., a Delaware corporation; ) MARK ZUCKERBERG, an individual; ) CHRISTOPHER COX, an individual; ) JAVIER OLIVAN, an individual; ) SAMUEL LESSIN, an individual; ) MICHAEL VERNAL, an individual; ) ILYA SUKHAR, an individual; and ) DOES 1 through 50, inclusive, ) ) Defendants. ) ) Case No. CIV 533328 Assigned For All Purposes To Hon. V. Richard Swope DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) HEARING DATE: July 2, 2018 HEARING TIME: 9:00 a.m. DEPARTMENT 23 JUDGE: Hon. V. Raymond Swope FILING DATE: April 10, 2015 TRIAL DATE: April 25, 2019 25 26 27 28 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328BG007497 1 2 3 4 5 6 I, David S. Godkin, declare: 1. I am an attorney at law and a member of the Law Offices of Birnbaum & Godkin, LLP, counsel for plaintiff Six4Three, LLC (“643”) in the above-captioned action. 2. True and correct copies of the relevant portions of the testimony of Michael Vernal are attached hereto as Exhibit 1, including 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007499 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 3. True and correct copies of the relevant portions of the testimony of Ali Partovi are 19 attached hereto as Exhibit 2, including 45:16-56:08, 75:21-79:20 (admits Facebook explicitly 20 promised it would manage and operate Platform as a level competitive playing field and that 21 developers would be able to rely on Platform to build businesses), 90:6-92:14 (Partovi felt at the 22 23 24 time that it was better to build a business on Facebook Platform than building a business from scratch on your own or using another platform), 99:11-120:4 25 26 27 28 3 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007500 , 121:5-123:11 (admits Facebook’s conduct caused an employee 1 2 exodus and made it impossible for iLike to recruit staff, business forecasts were slashed, and iLike 3 was forced to sell below its market valuation), 125:19-131:20 (Facebook threatens to shut iLike 4 5 6 down unless it sells to Facebook for “not very much”), 167:9-168:20 (authenticates Facebook Platform FAQ (Exhibit 10) and admits Facebook’s statements in the FAQ cohere with his 7 understanding of Facebook’s affirmative representations of Platform), 188:23-189:15 (admits he 8 helped Facebook grow Platform at Facebook’s request by encouraging other companies to build 9 businesses on Facebook Platform). 10 11 12 4. True and correct copies of the relevant portions of the testimony of Simon Cross are attached hereto as Exhibit 3, including 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007501 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007502 DJ ?Jl DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE (ANT I-SLAPP) Case No. IV BWOB 1 2 3 4 5 6 5. True and correct copies of the relevant portions of the testimony of Facebook’s PMQ Allison Hendrix are attached hereto as Exhibit 4, including 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007504 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007505 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 6. True and correct copies of the relevant portions of the testimony of Konstantinos Papamiltiadis are attached hereto as Exhibit 5, 18 19 20 21 22 23 24 25 26 27 28 9 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007506 1 2 3 4 5 6 7. True and correct copies of the relevant portions of the testimony of Bernard Hogan are attached hereto as Exhibit 6, including 45:4-21 (admits it was reasonable to interpret Section 7 9.8 of the SRR giving “all rights to APIs, data, code you receive from us” to mean that “if they 8 had offered it for me to use as a developer, then I could use it as a developer”), 57:4-63:5 (admits 9 that the SRR’s “limit access to data” provision reasonably refers to limiting the volume or rate of 10 11 12 data transferred via the APIs – and not that Facebook could shut down entire categories of critical APIs – and that if you abide by the rules “developers would be treated fairly, that they would be 13 able to access the data that is stipulated by Facebook as being accessible”) 67:8-83:3 (describes at 14 length how Facebook’s Graph API 2.0 harmed his applications and research and many other 15 developers), 98:10-99:4 (estimates the total monetary value of the harm caused to him by 16 17 18 Facebook at $200,000), 103:10-107:24 (admits that because of Graph API 2.0 his applications “just couldn’t work”), 108:1-111:13 (admits that in conversations with a Facebook employee, the 19 employee “well understood that these changes would inhibit my applications from working” and 20 the employee suggested he seek employment at Facebook to continue his work), 121:3-127:1, 21 172:18-176:4 (admits it is evident to an informed developer that some applications were 22 23 24 whitelisted to continue to access this data, citing Tinder as an example, because the applications still function as they had before Graph API 2.0), 219:23-222:1 (“I had a pretty strong 25 understanding that the social network data would be consistently available for a long period of 26 time, and I certainly acted under the expectations that such core functionality – so core that it’s in 27 the basic permissions – would still be available for a long time”), 28 10 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007507 1 2 3 4 5 6 . 8. True and correct copies of the relevant portions of the testimony of Ted Kramer are attached hereto as Exhibit 7, including 162:13-163:16, 223:6-15 (643 did not receive notice from Facebook until January 2015 that the app would no longer function), 205:17-25 (643 had raised 7 approximately $250,000 in seed capital, which was lost entirely as a result of Facebook’s bait and 8 switch scheme), 181:23-183:9, 195:25-196:16 (643 had contracts with 4,481 end users who had 9 downloaded its app during a trial period). 10 11 12 9. True and correct copies of the relevant portions of the testimony of Tim Gildea are attached hereto as Exhibit 8, including 115-117 (admits he was aware of Facebook Platform for 13 many years before co-founding 643, likely first became aware of Facebook Platform in 2007, had 14 knowledge of various Facebook Platform APIs, including the friends APIs, and that Facebook 15 Platform was a “pretty common thing in the developer community, so it was something that just 16 17 18 about everyone who was developing applications was aware of”). 10. True and correct copies of the relevant portions of the testimony of Tom 19 Scaramellino are attached hereto as Exhibit 9, including 199:1-206:18 (admits 643’s entire 20 business plan relied upon Facebook Platform and Facebook’s representations regarding how it 21 would manage it, including the prior five years of Facebook’s conduct; admits he contacted 22 23 24 Facebook employee Michael Huang in person and over email and was refused any discussion regarding how 643 could continue to operate after Graph API 2.0), 252 (admits he was aware of 25 and relied on the Facebook Platform announcement, the Facebook Platform FAQ, various 26 Facebook blog posts, Facebook’s Graph API 2010 announcement, various news articles regarding 27 speeches and public representations by Zuckerberg and others, and similar public materials when 28 determining whether 643 was a sound investment); 269:5-272:2 (admits 643’s last established 11 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007508 1 valuation was approximately $4 million and that this valuation was comparable to other startups at 2 this stage of development). 3 4 5 6 11. A true and correct copy of Exhibit 1 to Plaintiff’s Fourth Amended Complaint, Facebook’s official Facebook Platform FAQ, is attached hereto as Exhibit 10. 12. A true and correct copy of FB-00845980 - FB-00845983 7 8 9 10 11 is attached hereto as Exhibit 11. 13. A true and correct copy of FB-00846041 - FB-00846042 12 13 14 15 is attached hereto as Exhibit 12. 14. A true and correct copy of FB-01054694-FB-01054697 16 17 18 attached hereto as Exhibit 13. 19 20 15. A true and correct copy of FB-00846005 - FB-00846011 21 22 23 is attached hereto as Exhibit 14. 24 25 16. A true and correct copy of FB-00927553 - FB-00927556 26 27 28 12 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007509 1 2 3 4 5 (FB-00927553)) is attached hereto as Exhibit 15. 17. A true and correct copy of FB-01215536 - FB-01215539 6 7 8 9 10 11 12 (FB-01215536)) is attached hereto as Exhibit 16. 18. A true and correct copy of FB-00905310 - FB-00905313 13 14 15 16 17 18 19 (FB-00905312)) is attached hereto as Exhibit 17. 19. A true and correct copy of FB-01174454 - FB-01174462 20 21 22 23 24 25 26 27 28 13 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007510 1 2 3 4 5 6 7 (FB01174454)) is attached hereto as Exhibit 18. 20. A true and correct copy of FB-01062011 - FB-01062014 8 9 10 11 12 (FB-01062011)) is attached 13 14 15 hereto as Exhibit 19. 21. A true and correct copy of FB-00439054 - FB-00439068 16 17 18 19 20 21 is attached hereto as Exhibit 20. 22. A true and correct copy of FB-01223017 - FB-01223018 22 23 24 is attached 25 26 27 hereto as Exhibit 21. 23. A true and correct copy of FB-00235809 - FB-00235814 28 14 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007511 1 2 3 4 5 6 is attached hereto as Exhibit 22. 24. A true and correct copy of FB-00433779 - FB-00433783 7 8 9 10 11 (FB-00433779)) is attached hereto as Exhibit 23. 12 13 25. A true and correct copy of FB-00598434 - FB-00598436 14 15 16 17 is attached hereto as Exhibit 24. 26. A true and correct copy of FB-01364327 18 is 19 20 21 attached hereto as Exhibit 25. 27. A true and correct copy of FB-00986265 - FB-00986266 22 23 24 is attached hereto as 25 26 Exhibit 26. 27 28. A true and correct copy of FB-01381966-FB-01381989 28 15 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007512 (FB-01381971)) 1 2 3 is attached hereto as Exhibit 27. 29. A true and correct of FB-01382308-FB-0132334 4 5 6 (FB-01382310)) is attached hereto as Exhibit 28. 7 8 30. A true and correct copy of FB-01389741-FB-01389752 9 10 11 12 13 (FB01389743)) is attached hereto as Exhibit 29. 31. A true and correct copy of FB-00495737 - FB-00495739 14 15 16 17 18 (FB-00495737)) is attached hereto as Exhibit 30. 19 20 32. A true and correct copy of FB-01203441 - FB-01203443 21 22 23 24 (FB-01203441)) is attached hereto as Exhibit 31. 25 26 33. A true and correct copy of FB-00986079 - FB-00986085 27 28 16 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007513 1 2 3 4 5 (FB-00986079)) is attached hereto as Exhibit 32. 34. A true and correct copy of FB-01368413 - FB-01368440 6 is attached hereto as 7 8 Exhibit 33. 9 35. A true and correct copy of FB-01368446 - FB-01368448 10 11 12 is attached hereto as Exhibit 34. 13 14 36. A true and correct copy of FB-01389634-FB-01389639 15 16 17 is attached hereto as Exhibit 35. 18 19 37. A true and correct copy of FB-01370841- FB-01370845 20 21 22 23 (FB- 24 25 26 01370841 - FB-01370843)) is attached hereto as Exhibit 36. 38. A true and correct copy of FB-01389002 - FB-01389007 27 28 17 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007514 1 2 3 4 5 6 7 8 9 10 11 12 is attached hereto as Exhibit 37. 39. A true and correct copy of FB-01389021- FB-01389038 13 14 15 16 17 18 19 20 (FB-01389029)) is attached hereto as Exhibit 38. 40. A true and correct copy of FB-01368198- FB-01368210 21 22 23 24 25 26 27 is attached hereto as Exhibit 39. 41. A true and correct copy of FB-00943406 - FB-00943407 28 18 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007515 1 2 3 4 5 6 (FB-00943406)) is attached hereto as Exhibit 40. 42. A true and correct copy of FB-01369059 - FB-01369087 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007516 1 2 is attached hereto as Exhibit 41. 3 43. A true and correct copy of FB-01218365- FB-01218366 4 5 is attached hereto 6 7 as Exhibit 42. 8 44. A true and correct copy of FB-01220345-FB-01220350 9 10 11 12 is attached hereto as Exhibit 43. 13 14 45. A true and correct copy of FB-00934373 15 16 17 18 is attached hereto as Exhibit 44. 46. A true and correct copy of FB-00423235 - FB-00423237 19 20 21 22 23 24 25 26 27 is attached hereto as Exhibit 45. 28 20 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007517 1 47. A true and correct copy of FB-00948764-FB-00948765 2 3 4 5 6 (FB-00948765)) is attached hereto as Exhibit 46. 48. A true and correct copy of FB-00917791 - FB-00917797 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 (FB-00917792 - FB-00917793)) is attached hereto as Exhibit 47. 49. A true and correct copy of FB-01155756 - FB-01155759 24 25 26 27 (FB-01155756)) is attached hereto as Exhibit 48. 28 21 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007518 50. 1 A true and correct copy of FB-01368932 - FB-01368967 2 3 4 5 6 7 (FB-01368946)) is attached hereto as Exhibit 49. 8 51. A true and correct copy of FB-01368113- FB-01368121 9 10 11 is attached hereto as Exhibit 12 13 14 50. 52. A true and correct copy of FB-01370735 - FB-01370736 15 16 17 18 is attached hereto as Exhibit 51. 19 20 53. A true and correct copy of FB-00095704 - FB-00095717 21 22 23 24 25 26 27 28 22 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007519 1 2 3 4 5 is attached hereto as Exhibit 52. 54. A true and correct copy of FB-00947909 - FB-00947911 6 7 8 9 10 11 (FB-00947909)) is 12 13 14 attached hereto as Exhibit 53. 55. A true and correct copy of FB-00949066 - FB-00949067 15 16 17 (FB-00949066)) is attached hereto as Exhibit 54. 18 19 56. A true and correct copy of FB-00943408 20 21 22 23 24 is attached hereto as Exhibit 55. 57. A true and correct copy of FB-01368870 - FB-013688702 25 26 27 28 23 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007520 1 2 3 (FB-01368870)) is attached hereto as Exhibit 56. 58. A true and correct copy of FB-01366036 - FB-01366070 4 5 6 (FB-01366036)) is attached hereto as Exhibit 57. 7 8 59. A true and correct copy of FB-01373378 - FB-01373380 9 10 11 12 is attached hereto as Exhibit 58. 13 14 60. A true and correct copy of FB-00567344 15 16 17 18 19 20 21 22 23 is attached hereto as Exhibit 59. 61. A true and correct copy of FB-00858137 - FB-00858140 24 25 26 27 28 24 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007521 (FB-00858139 - FB-00858140)) is 1 2 3 attached hereto as Exhibit 60. 62. A true and correct copy of FB-01312769 - FB-01312773 4 5 6 7 8 9 10 11 (FB-01312772)) is attached hereto as Exhibit 61. 63. A true and correct copy of FB-01150813 - FB-01150820 12 13 14 15 is attached hereto as Exhibit 62. 64. A true and correct copy of FB-00948246 - FB-00948251 16 17 18 19 20 21 22 23 24 is attached hereto as Exhibit 63. 65. A true and correct copy of FB-00948264 - FB-00948268 25 26 27 28 25 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007522 1 2 3 is attached hereto as Exhibit 64. 66. A true and correct copy of FB-00908514 - FB-00908519 4 5 6 7 8 9 10 11 12 (FB-00908517)) is attached hereto as Exhibit 65. 67. A true and correct copy of FB-00954660 - FB-00954663 13 14 15 16 17 is attached hereto as Exhibit 66. 18 19 68. A true and correct copy of FB-00963936 - FB-00963937 20 21 22 23 24 25 (FB-00963937)) is attached hereto as Exhibit 67. 69. A true and correct copy of FB-00899292 - FB-00899306 26 27 28 26 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007523 is attached hereto as Exhibit 68. 70. A true and correct copy of - is attached hereto as Exhibit 69. 71. A true and correct copy of - FB-01370643 attached hereto as Exhibit 70. 72. A true and con'ect copy of FB-01388109 - - is attached hereto as Exhibit 71. 73. A tme and c01rect copy of FB-00921658 - FB-00921659 is attached hereto as Exhibit 72. 74. A ?ne and correct copy of FB-00061224 I Kl DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANT 8? SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) Case No. IV 33311113824 1 2 3 (FB-00061222)) is attached hereto as Exhibit 73. 75. A true and correct copy of FB-00061650 - FB-00061654 4 5 6 7 8 (FB-00061654)) is attached hereto as Exhibit 74. 9 76. A true and correct copy of FB-00061365- FB-00061369 10 11 12 13 14 15 16 17 18 is attached hereto as Exhibit 75. 19 20 77. A true and correct copy of FB-00061233 - FB-00061236 21 22 23 is attached hereto 24 25 26 as Exhibit 76. 78. A true and correct copy of FB-01363526 – FB-01363532 27 28 28 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007525 1 2 is attached hereto as Exhibit 77. 3 79. A true and correct copy of FB-01352115- FB-01352154 4 5 6 7 8 9 10 is attached hereto as Exhibit 78. 11 80. 12 A true and correct copy of FB-00061249 - FB-00061252 13 14 15 16 17 is attached hereto as Exhibit 18 19 20 79. 81. A true and correct copy of FB-00061437 - FB-00061440 21 22 23 24 25 26 27 28 is attached hereto as Exhibit 80. 29 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007526 1 82. A true and correct copy of FB-00494539 - FB-00494544 2 3 4 5 is attached hereto as Exhibit 81. 83. A true and correct copy of FB-01352696 - FB-01352748 6 is 7 8 9 attached hereto as Exhibit 82. 84. A true and correct copy of FB-00427400 - FB-00427406 10 11 12 13 14 15 is attached hereto as Exhibit 83. 85. A true and correct copy of FB-00046266 - FB-00046271 16 17 18 19 20 21 22 23 24 (FB-00046269 - FB-00046270)) is attached hereto as Exhibit 84. 86. is attached hereto as Exhibit 85. 25 26 27 A true and correct copy of FB-00031245 - FB-00031262 87. A true and correct copy of FB-00042856 - FB-00042857 is attached hereto as Exhibit 86. 28 30 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007527 1 88. 2 3 is attached hereto as Exhibit 87. 89. 4 5 6 A true and correct copy of FB-00042763 - FB-00042769 is attached hereto as Exhibit 88. 90. A true and correct copy of FB-00042722 is attached hereto as Exhibit 89. 7 8 A true and correct copy of FB-00042899 - FB-00042910 91. A true and correct copy of FB-00042373 - FB-00042378 9 10 11 is attached hereto as Exhibit 90. 92. is attached hereto as Exhibit 91. 12 13 93. 14 15 A true and correct copy of FB-00043830 - FB-00043835 A true and correct copy of FB-00045735 - FB-00045738 is attached hereto as Exhibit 92. 94. A true and correct copy of FB-00043884 - FB-00043889 16 17 18 19 20 21 22 23 24 25 26 27 28 31 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007528 is 1 2 3 attached hereto as Exhibit 93. 95. A true and correct copy of FB-00046047 - FB-00046058 4 5 6 7 8 9 is attached hereto as Exhibit 94. 96. 10 11 12 A true and correct copy of FB-00046279 - FB-00046283 is attached hereto as Exhibit 95. 97. A true and correct copy of FB-00277665 - FB-00277674 13 14 15 16 17 18 (FB-00277665)) is attached hereto as Exhibit 96. 98. A true and correct copy of FB-00044220 - FB-00044227 19 20 21 22 23 is attached hereto as Exhibit 97. 24 25 99. A true and correct copy of FB-00454582 - FB-00454584 26 27 is attached hereto as Exhibit 98. 28 32 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007529 1 100. A true and correct copy of FB-01219463 2 3 is attached hereto as Exhibit 99. 101. A true and correct copy of FB-00521468 - FB-00521484 4 5 6 (FB- 7 8 9 00521473)) is attached hereto as Exhibit 100. 102. A true and correct copy of FB-00456587 - FB-00456588 10 11 12 13 14 15 16 17 18 19 20 21 22 23 (FB-00456587)) is attached hereto as Exhibit 101. 103. A true and correct copy of FB-00047444 - FB-00047451 24 is 25 26 27 attached hereto as Exhibit 102. 104. A true and correct copy of FB-00045920 - FB-00045927 28 33 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007530 1 2 3 4 5 6 (FB-00045923 - FB-00045924)) is attached hereto as Exhibit 103. 105. A true and correct copy of FB-00433628 - FB-00433629 7 8 9 10 11 is attached hereto as Exhibit 104. 12 13 106. A true and correct copy of FB-00551862 - FB-00551864 14 15 16 17 (FB-00551862)) is attached hereto as 18 19 Exhibit 105. 20 107. A true and correct copy of FB-00575243 - FB-00575248 21 22 23 (FB-00575243)) is attached hereto as Exhibit 106. 24 25 108. A true and correct copy of FB-00576265 - FB-00576268 26 27 28 34 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007531 1 2 3 4 5 6 is attached hereto as Exhibit 107. 109. A true and correct copy of FB-00549032 - FB-00549033 7 8 9 10 11 12 13 14 15 is attached hereto as Exhibit 108. 110. A true and correct copy of FB-01363612 - FB-01363614 16 17 18 19 20 21 22 23 24 25 26 27 is attached hereto as Exhibit 109. 28 35 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007532 1 111. A true and correct copy of FB-01363618 - FB-01363619 2 3 4 5 is 6 7 8 attached hereto as Exhibit 110. 112. A true and correct copy of FB-00528042 - FB-00528043 9 10 11 12 13 14 15 16 17 18 (FB-00528042)) is 19 20 21 attached hereto as Exhibit 111. 113. A true and correct copy of FB-00061393 - FB-00061395 22 23 24 25 26 27 28 36 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007533 1 2 3 4 5 6 7 8 9 10 11 12 (FB00061393 - FB-00061394)) is attached hereto as Exhibit 112. 114. A true and correct copy of FB-01353432 - FB-01353439 13 14 15 16 17 18 19 20 21 22 23 24 is attached hereto as Exhibit 113. 25 26 115. A true and correct copy of FB-01364691 - FB-01364694 27 28 37 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007534 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007535 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007536 (FB-01364691)) 1 2 3 is attached hereto as Exhibit 114. 116. A true and correct copy of FB-01364306 - FB-01364312 4 5 6 7 8 9 10 11 12 is attached hereto as Exhibit 115. 117. A true and correct copy of FB-01363717 - FB-01363724 13 14 15 16 17 18 19 20 21 22 23 is attached hereto as Exhibit 116. 118. A true and correct copy of FB-01365361 - FB-01365375 24 25 26 27 28 40 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007537 is attached 1 2 3 hereto as Exhibit 117. 119. A true and correct copy of FB-01355841- FB-01355842 4 5 6 7 8 9 is attached hereto as Exhibit 118. 120. A true and correct copy of FB-01364897 - FB-01364900 10 11 12 13 14 15 16 17 18 is attached hereto as Exhibit 119. 121. A true and correct copy of FB-01364161 19 20 21 is attached hereto as Exhibit 120. 122. A true and correct copy of FB-01353339 - FB-01353340 22 23 24 25 is attached hereto as Exhibit 121. 123. A true and correct copy of FB-01193401 26 27 28 41 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007538 1 2 3 is attached hereto as Exhibit 122. 124. A true and correct copy of FB-00517457 4 5 is 6 7 8 attached hereto as Exhibit 123. 125. A true and correct copy of FB-01352766 - FB-01352768 9 10 11 (FB-01352766)) is attached hereto as Exhibit 124. 12 13 126. A true and correct copy of FB-00921983 - FB-00921984 14 15 16 17 18 19 20 is attached hereto as Exhibit 125. 127. A true and correct copy of FB-00422927 - FB-00422928 21 22 23 24 25 26 27 28 is attached hereto as Exhibit 126. 42 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007539 DJ ?Jl 128. A true and correct copy of FB-00556670 - FB-0055667 is attached hereto as Exhibit 127. 129. A tme and correct copy of FB-00454708 138-00454714? is attached hereto as Exhibit 128. 130. A tme and correct copy of FB-00058030 - FB-00058033 is attached hereto as Exhibit 129. 131. A tme and correct copy of FB-00434425 FB-00434431 43 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE (ANT I-SLAPP) Case No. IV 391313840 1 2 3 4 5 (FB-00434427 - FB-00434428)) is attached hereto as Exhibit 130. 6 7 132. A true and correct copy of FB-00854672 - FB-00854673 8 9 10 11 is attached hereto as Exhibit 131. 12 13 133. A true and correct copy of FB-0000075 - FB-0000096 14 15 16 17 18 19 20 21 FB-0000078)) is attached hereto as Exhibit 132. 134. A true and correct copy of FB-00429152 - FB-00429169 22 23 24 (FB-00429159)) is attached hereto as Exhibit 133. 25 26 135. A true and correct copy of FB-00433791 - FB-00433799 27 28 44 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007541 1 2 (FB-00433793)) is attached hereto as Exhibit 134. 3 136. A true and correct copy of FB-01391357 4 5 6 7 8 9 10 11 is attached hereto as Exhibit 135. 137. 12 A true and correct copy of FB-01353100 13 14 15 is attached hereto as Exhibit 136. 16 138. 17 A true and correct copy of FB-01373066 - FB-01373073 18 19 20 21 22 23 24 25 is attached hereto as Exhibit 137. 139. A true and correct copy of FB-00089734 - FB-00089742 26 27 28 45 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007542 1 2 3 4 5 (FB-00089740)) is attached hereto as Exhibit 138. 140. A true and correct copy of FB-00061671 - FB-00061674 6 (FB-00061674)) is attached hereto as Exhibit 139. 7 8 141. A true and correct copy of FB-00417662 - FB-00417673 9 10 11 12 13 (FB-00417670)) is attached hereto as Exhibit 140. 142. A true and correct copy of FB-01335815 - FB-01335822 14 15 16 17 (FB- 18 19 20 01335815 - FB-01335819)) is attached hereto as Exhibit 141. 143. A true and correct copy of FB-01370694 - FB-01370701 21 22 23 24 25 26 27 28 46 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007543 1 2 3 4 5 6 (FB01370695 - FB-01370700)) is attached hereto as Exhibit 142. 144. A true and correct copy of FB-01368044 - FB-01368045 7 8 9 10 11 is attached 12 13 14 hereto as Exhibit 143. 145. A true and correct copy of FB-01354549 - FB-01354571 15 16 17 18 19 20 21 is attached hereto as Exhibit 144. 146. A true and correct copy of FB-0000017 - FB-0000026 22 23 24 is attached hereto as Exhibit 145. 147. A true and correct copy of the relevant portions of FB-00046731 is 25 26 27 attached hereto as Exhibit 146. 148. A true and correct copy of the relevant portions of FB-00047811 28 47 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007544 1 2 3 4 5 is attached hereto as Exhibit 147. 149. 6 A true and correct copy of the relevant portions of FB-00051800 7 8 9 10 11 12 is attached hereto as Exhibit 13 14 15 148. 150. A true and correct copy of FB-01251951 - FB-01251953 16 17 is attached hereto as Exhibit 149. 18 19 151. A true and correct copy of FB-00605188 - FB-00605190 20 21 22 23 24 25 26 27 28 48 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007545 1 2 3 is attached hereto as Exhibit 150. 152. True and correct copies of FB-01235610 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 are attached hereto as Exhibit 151 and Exhibit 152. 153. A true and correct copy of FB-00600167 - FB-00600169 24 25 26 27 28 49 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007546 IK) 00 \1 Ch \0 is attached hereto as Exhibit 153. 154. A tine and con?ect copy of - is attached hereto as Exhibit 154. 50 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) Case No. CIV 5330117847 1 155. A true and correct copy of FB-00494207 - FB-00494213 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 is attached hereto as Exhibit 155. 25 26 156. A true and correct copy of FB-00552036 27 28 51 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007548 1 2 is attached hereto as Exhibit 156. 3 157. A true and correct copy of FB-00552033 4 5 6 7 8 9 10 11 is attached hereto as Exhibit 12 13 14 157. 158. A true and correct copy of FB-01368843 - FB-01368856 15 16 17 18 19 20 21 22 23 24 25 26 27 is attached hereto as Exhibit 158. 159. A true and correct copy of FB-01368452 - FB-01368453 28 52 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007549 1 2 3 4 5 is attached hereto as Exhibit 159. 160. A true and correct copy of FB-00534487 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 is attached hereto as Exhibit 160. 161. A true and correct copy of FB-00430057 - FB-00430063 25 26 27 28 53 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007550 1 2 3 is attached hereto as Exhibit 161. 162. A true and correct copy of FB-00510070 - FB-00510071 4 5 6 7 8 9 10 11 12 is attached 13 14 15 hereto as Exhibit 162. 163. A true and correct copy of FB-00510419 - FB-00510420 16 17 18 19 20 21 is attached hereto as Exhibit 163. 164. A true and correct copy of FB-00899163 - FB-00899168 22 23 24 25 26 27 28 54 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007551 1 2 3 4 5 6 7 8 9 is attached hereto as Exhibit 164. 165. A true and correct copy of FB-00917804 - FB-00917810 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 is attached hereto as Exhibit 165. 166. A true and correct copy of FB-00920691 - FB-00920693 27 28 55 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007552 1 2 3 is attached hereto as Exhibit 166. 167. A true and correct copy of FB-00926250 - FB-00926257 4 5 6 7 8 9 10 11 12 is attached hereto as 13 14 Exhibit 167. 15 168. A true and correct copy of FB-00948130 - FB-00948136 16 17 18 19 20 21 22 23 24 25 26 27 28 56 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007553 is attached hereto as Exhibit I68. 169. A tnle and correct copy of FB-00968688 - B-00968701 p?['11 5? p?n. p-p p?A ON .9 170. A tnle and cou?ect copy of 156203 - H. (I) attached hereto as Exhibit 170. 171. A tme and cou?ect copy of 156760 - is attached hereto as Exhibit 171. 172. A tme and cou?ect copy of 18866? 57 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANT SPECIAL MOTIONS TO STRIKE (AVTI-SLAPP) Case No. IV 3911113854 1 2 3 4 5 6 7 8 9 10 11 is 12 13 14 attached hereto as Exhibit 172. 173. A true and correct copy of FB-01221432 - FB-01221433 15 16 17 18 19 20 is attached hereto as Exhibit 173. 174. A true and correct copy of FB-01252038 - FB-01252039 21 22 23 24 25 26 27 28 58 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007555 is 1 2 attached hereto as Exhibit 174. 3 175. A true and correct copy of FB-00947595 - FB-00947606 4 5 6 7 8 9 10 11 12 is attached hereto as Exhibit 175. 176. A true and correct copy of FB-01151043 - FB-01151044 13 14 15 16 17 18 19 20 21 22 23 is attached hereto as Exhibit 176. 177. A true and correct copy of FB-00947652 24 25 26 27 is attached hereto as Exhibit 177. 178. A true and correct copy of FB-00433723 - FB-00433728 28 59 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007556 DJ \0 00 \l is attached hereto as Exhibit 178. 179. A tnle and conect copy of FB-00109950 FB-00109957 00109952? is attached hereto as Exhibit 179. 180. A true and correct copy of FB-00089881 - FB-00089884 is attached hereto as Exhibit 180. 181. A tme and correct copy of Exhibit 9 to the testimony of Facebook?s PMQ, Allison Hendrix (a document published by Facebook in 2007 entitled ?f8 Event and Facebook Platform is attached hereto as Exhibit 181. 182. A tme and con?ect copy of FB-01351861 - FB-01351866 60 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE (ANT I-SLAPP) Case No. IV 390113857 1 2 3 is attached hereto as Exhibit 182. 183. A true and correct copy of FB-01352632 - FB-01352642 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is attached hereto as Exhibit 183. 184. A true and correct copy of FB-01366934 - FB-01366948 18 is attached 19 20 21 hereto as Exhibit 184. 185. A true and correct copy of FB-00889856 - FB-00889861 22 23 24 is attached hereto as Exhibit 185. 25 26 186. A true and correct copy of FB-01217108 - FB-01217112 27 28 is attached hereto as Exhibit 186. 61 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007558 1 187. A true and correct copy of FB-01353037 - FB-01353039 2 3 4 5 6 7 8 9 10 11 12 is attached hereto as Exhibit 187. 188. A true and correct copy of FB-00080931 - FB-00080943 13 14 15 16 17 18 (FB-00080939)) is attached hereto as Exhibit 188. 189. A true and correct copy of FB-01363061 - FB-01363113 19 20 21 22 23 24 25 is attached hereto as Exhibit 189. 190. A true and correct copy of FB-01363526 – FB-01363535 26 27 28 62 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007559 1 2 3 4 5 is attached hereto as Exhibit 190. 191. A true and correct copy of FB-01369295 6 7 8 9 10 11 is attached hereto as Exhibit 191. 192. A true and correct copy of FB-01373074 12 13 14 15 is attached hereto as Exhibit 192. 193. A true and correct copy of FB-01389969 16 17 18 19 20 21 22 23 is 24 25 26 attached hereto as Exhibit 193. 194. A true and correct copy of FB-00454612 - FB-00454614 27 28 63 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007560 1 2 3 4 5 is attached hereto as Exhibit 194. 195. A true and correct copy of FB-00580073 - FB-00580074 6 7 8 9 10 11 is 12 13 14 attached hereto as Exhibit 195. 196. A true and correct copy of FB-00574447 - FB-00574448 15 16 17 18 19 20 21 22 23 24 25 26 27 is attached hereto as Exhibit 196. 28 64 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007561 1 197. A true and correct copy of FB-01215116 - FB-01215118 2 3 4 5 6 7 8 9 10 11 12 13 is attached hereto as Exhibit 197. 198. A true and correct copy of FB-00194154 - FB-00194155 14 15 16 17 18 19 20 21 22 23 24 25 26 27 is attached hereto as Exhibit 198. 199. A true and correct copy of FB-01193711 28 65 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007562 1 2 3 4 5 6 7 8 9 is attached hereto as Exhibit 199. 200. A true and correct copy of FB-00043600 10 11 12 is attached hereto as Exhibit 200. 13 14 201. A true and correct copy of FB-01217135 - FB-01217135 15 16 17 18 19 is attached hereto as Exhibit 201. 202. A true and correct copy of FB-00477297 - FB-00477299 20 21 22 23 24 is 25 26 27 attached hereto as Exhibit 202. 203. A true and correct copy of FB-00483662 - FB-00483665 28 66 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007563 1 2 3 4 is attached hereto as Exhibit 203. 5 204. 6 A true and correct copy of FB-00569937 - FB-00569938 7 8 9 10 11 12 13 14 15 is attached hereto as Exhibit 204. 16 205. 17 A true and correct copy of FB-00190690 - FB-00190692 18 19 20 is attached hereto as Exhibit 205. 21 206. A true and correct copy of FB-00189010 - FB-00189020 22 23 24 25 26 27 28 is attached hereto as Exhibit 206. 67 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007564 DJ ?Jl 207. A tme and con?ect copy of FB-00026998 - FB-00027002 is attached hereto as Exhibit 207. 208. A tme and con?ect copy of FB-00025985 - FB-00025992 is attached hereto as Exhibit 208. 209. A tme and con?ect copy of FB-00025853 - FB-00025857 210. A tme and con?ect copy of FB-00025847 - FB-00025848 Ch (7) DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE (ANT I-SLAPP) Case No. IV 39003865 00 \l 'Jl DJ is attached hereto as Exhibit 210. 211. A tme and con?ect copy of FB-00026028 - (PB-00026034 - is attached hereto as Exhibit 21 1. 212. A tme and con?ect copy of FB-013 12032 Ch \0 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO SPECIAL MOTIONS TO STRIKE (ANT I-SLAPP) Case No. IV 39132866 1 2 3 4 5 6 (FB-01312063)) is attached hereto as Exhibit 212. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 17, 2018 in Boston, Massachusetts. 7 8 /s/ David S. Godkin David S. Godkin, Esq. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007567 1 PROOF OF SERVICE 2 I, Cheryl A. McDuffee, declare: 3 I am a citizen of the United States and employed in Suffolk County, Massachusetts. I am 4 over the age of eighteen years and not a party to the within-entitled action. My business address is 5 280 Summer Street, Boston, MA 02210. On May 17, 2018, I served a copy of the within 6 document(s): 7 8 9 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) by electronic service, per the agreement of the parties, by emailing a true and correct copy through counsel’s email address to Defendant’s counsel of record at the email addresses set forth below.  10 11 12 13 14 15 16 17 Joshua H. Lerner (jlerner@durietangri.com) Sonal N. Mehta (smehta@durietangri.com) Laura Miller (lmiller@durietangri.com) Catherine Kim (ckim@durietangri.com) Durie Tangri (service-six4three@durietangri.com) 217 Leidesdorff Street San Francisco, CA 94111 P (415) 376 - 6427 Attorney for Defendant FACEBOOK, INC. 18 and 19 Judge V. Raymond Swope (By hand) Department 23 Complex Civil Litigation 20 21 22 23 24 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed May 17, 2018, at Boston, Massachusetts. 25 26 /s/ Cheryl A. McDuffee Cheryl A. McDuffee 27 28 71 DECLARATION OF DAVID S. GODKIN IN OPPOSITION TO DEFENDANTS’ SPECIAL MOTIONS TO STRIKE (ANTI-SLAPP) / Case No. CIV 533328 BG007568 EXHIBIT 1 REDACTED FOR PUBLIC FILING BG007569 EXHIBIT 2 PORTIONS REDACTED FOR PUBLIC FILING BG007570 ALI PARTOVI - 10/10/2017 1 2 · IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 3 4 SIX4THREE, LLC, a Delaware limited liability company, 5 Plaintiff, 6 7 8 9 vs. No. CIV 533328 FACEBOOK, INC., a Delaware corporation; and DOES 1 through 50, inclusive, Defendants. _____________________________/ 10 11 12 13 14 15 DEPOSITION OF ALI PARTOVI 16 October 10, 2017 17 18 19 20 21 22 23 24 25 Reported by: Natalie Y. Botelho CSR No. 9897 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com BG007571 ALI PARTOVI - 10/10/2017 1 Page 45 look at Exhibit 3. 2 MR. LERNER: And just to be clear, you 3 want this to be both Exhibit 7 to Hendrix and 4 Exhibit 3 to this deposition? 5 MR. GODKIN: Yes. 6 MR. LERNER: All right. 7 MR. GODKIN: It's not the first time -- 8 MR. LERNER: It's your record. 9 I understand. 10 MR. GODKIN: 11 (Pause.) 12 MR. GODKIN: 13 I mean... Yeah. Q. Have you had a moment to review Exhibit 3? 14 (Pause.) 15 THE WITNESS: 16 MR. GODKIN: Yeah. Q. If you look at the bottom 17 of the first page of Exhibit 3, you see a URL which 18 is facebook.com, then some additional information? 19 A. Yeah. 20 Q. Do you recall ever reading this on 21 Facebook's website? 22 A. 23 reading this. 24 haven't -- that looks unfamiliar to me. 25 I've seen this information in some form before. 1-617-542-0039 I can't say exactly whether I recall However, there's nothing here that I I feel like DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007572 ALI PARTOVI - 10/10/2017 Page 46 1 Q. Did you from time to time go to Facebook's 2 website and read what was posted on the website? 3 A. Yes. 4 Q. And do you recall going to the website 5 from time to time to read announcements made by 6 Facebook about its platform? 7 MR. LERNER: 8 THE WITNESS: 9 MR. GODKIN: Vague and overbroad. Yes. Q. If you focus for a moment 10 on the second paragraph of Exhibit 3, do you see 11 that there's a statement differentiating between 12 applications people use on Facebook and the core of 13 the site? 14 A. Yes. 15 Q. And then it goes on to say, "Applications 16 are things like Photos, Notes, Groups and Events"? 17 A. Yes. 18 Q. Do you see that? 19 any understanding about what Facebook meant when it 20 was differentiating between applications and the 21 core of its website? Do you see that? 22 MR. LERNER: 23 THE WITNESS: Do you recall coming to Calls for speculation. Well, yes. Between this, 24 what you just pointed out, but also the language in 25 the fourth paragraph says it more overtly, where it 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007573 ALI PARTOVI - 10/10/2017 Page 47 1 says, "we've made it so that any developer can build 2 the same applications that we can." 3 understood that to mean was that Facebook's own 4 features would -- would be built as applications 5 using the same platform and using the same APIs that 6 third-party applications would. 7 What I And there was a example unveiled at the F8 8 event, which was the Video application, and that's 9 in the last paragraph of this -- of this document. 10 That was sort of a symbolic example where Facebook 11 was unveiling a significant new feature, and it was 12 unveiled in the form of an application that had -- 13 had no inherent advantages over third-party 14 applications -- 15 MR. GODKIN: Q. What -- 16 A. -- on the platform. 17 Q. Was that concept important to your 18 company, iLike, the concept that Facebook would be 19 building applications using the same tools and would 20 have no inherent advantages over third-party 21 applications? 22 23 MR. LERNER: foundation. 24 25 Leading, compound, and lacks THE WITNESS: That was very important to us. 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007574 ALI PARTOVI - 10/10/2017 1 MR. GODKIN: Q. Page 48 Why was that very 2 important to you? 3 A. 4 level playing field where a third party could 5 compete not only with other third parties, but even 6 with Facebook's own capabilities, and could 7 accumulate customers based on merit and not based 8 on, you know, special advantages within the -- 9 within Facebook. Because it suggested that there would be a 10 Q. Was that concept something you and your 11 company were aware of back in April, when you 12 decided to go ahead and build an app on the Facebook 13 Platform? 14 15 MR. LERNER: Overbroad, calls for speculation. 16 THE WITNESS: 17 wasn't. 18 were. I don't think I was. I I don't know if others within the company 19 MR. GODKIN: Q. Did you become aware of 20 that at the F8 in May of 2007? 21 MR. LERNER: 22 THE WITNESS: 23 MR. GODKIN: Overbroad. Yes. Q. And the Face -- was 24 Facebook's demonstration of its new Video app an 25 illustration of that concept? 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007575 ALI PARTOVI - 10/10/2017 1 MR. LERNER: 2 THE WITNESS: 3 MR. GODKIN: Page 49 Same objection. It was. Q. Was it your understanding 4 that Facebook was using its new Video app in order 5 to communicate to third-party developers that there 6 would be a level playing field out there? 7 8 MR. LERNER: Calls for speculation, it's overbroad, and it's leading. That was my understanding. 9 THE WITNESS: 10 MR. GODKIN: Q. 12 MR. LERNER: Misstates the testimony. 13 THE WITNESS: 14 MR. GODKIN: 11 And that was important to you why? I've already answered that. Q. Okay. I'll withdraw 15 that, then. Do you see in the third paragraph the 16 term "social graph" is used? 17 A. Yes. 18 Q. Did you have an understanding of what 19 Facebook meant when it referred to the social graph? 20 A. Yes. 21 Q. What was your understanding? 22 MR. LERNER: Calls for speculation. 23 THE WITNESS: A graph is a computer 24 science term, where you have nodes, which you could 25 think of as dots, and then you have connections 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007576 ALI PARTOVI - 10/10/2017 Page 50 1 between the nodes, which you can think of as lines 2 connecting them. 3 interconnections between people, where each person, 4 each human, is a node, and each friendship is a line 5 connecting two nodes or two people. 6 And the social graph meant the MR. GODKIN: Q. And in the fourth 7 paragraph, do you see there's a reference to 8 "written FQL," and then in parentheses it says 9 "Facebook Query Language"? Do you see that? 10 A. Yes. 11 Q. Do you know what that means? 12 MR. LERNER: 13 THE WITNESS: Same objection. Broadly. There were two new 14 languages, FQL and FBML, which is Facebook Markup 15 Language -- sorry -- Facebook Markup Language. 16 these were -- essentially these were both extremely 17 similar to existing standard languages, but modified 18 to enable specific Facebook capabilities. 19 provided abilities for the -- for an application to 20 get information from Facebook. 21 APIs that I mentioned before. 22 And And FQL So as part of the So as an example, if an app wanted to find 23 out what are the favorite music of a consumer, they 24 could submit an FQL query using the Facebook Query 25 Language to look up that consumer's favorite music. 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007577 ALI PARTOVI - 10/10/2017 1 MR. GODKIN: Q. Page 51 And when you're using the 2 term "language," are you talking about a computer 3 programming language? 4 A. Sorry. 5 Q. Okay. 6 7 Yes. All right. Put that one aside. Let me ask the court reporter to mark as the next exhibit another document. 8 (Whereupon Exhibit 4 was marked for 9 identification.) 10 MR. GODKIN: Q. I've placed in front of 11 you what we've marked as Exhibit 4, Mr. Partovi. 12 you could take a moment to review it. 13 A. Mm-hmm. 14 Q. It's entitled "F8 Event and Facebook 15 Platform FAQ" at the top. 16 A. Mm-hmm. 17 Q. You need to say "yes" or "no." 18 A. Yes. 19 Q. Have you seen this document before? 20 A. This does not look familiar to me. 21 Q. Do you see in the very first paragraph, 22 under the heading "What is F8," and then it says, 23 "F8 was an event held at the San Francisco Design 24 Center on May 24th -- 25 A. 1-617-542-0039 If Do you see that? Yes. DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007578 ALI PARTOVI - 10/10/2017 Page 52 1 Q. 2 unveiled the next evolution of Facebook Platform." 3 And it talks about a Hackathon, as well. 4 A. Yeah. 5 Q. Does this refresh your recollection that 6 the F8 in 2007 took place on May 24, 2007 -- 7 A. Yes. 8 Q. -- at the San Francisco Design Center? 9 10 -- 2007, during which Mark Zuckerberg MR. LERNER: Asked and answered. He's already testified this document's not familiar. 11 THE WITNESS: So on the third paragraph, I 12 might have seen this, because this is the -- 13 "opportunity to build a business" at the end is a 14 thing that I remember pointing out to you 15 specifically was important to me. 16 MR. GODKIN: Q. All right. And so you're 17 referring to the third paragraph that's entitled 18 "What is Facebook Platform," correct? 19 A. Yes. 20 Q. And in that paragraph, it also refers 21 to -- this is in the last sentence -- "deep 22 integration into the Facebook website." 23 A. Yes. 24 Q. Does that refresh your recollection as to 25 whether you read this document before? 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007579 ALI PARTOVI - 10/10/2017 1 A. That one, not as much. 2 build a business" is something that I remember 3 reading. 4 saying it on stage, as well. 5 document, so therefore, maybe I read it here. 6 Q. 7 are you referring -- 8 A. It wasn't in Exhibit 3. 9 Q. Exhibit 3. Page 53 "Opportunity to And I think I remember Mark Zuckerberg And it wasn't in this When you say "it wasn't in this document," Okay. And if you refer down 10 to -- down towards the bottom of the first page, 11 there's a section called "Why did Facebook launch 12 Facebook Platform?" 13 A. Yeah. 14 Q. And it says, "Our engineers have created 15 great applications for Facebook, but we recognize 16 that third-party developers can help us make 17 Facebook an even more powerful social utility." 18 you see that? 19 A. Yeah. 20 Q. Does reading that refresh your 21 recollection as to whether or not you heard 22 Mr. Zuckerberg or someone else talk about 23 third-party developers making Facebook a more 24 powerful social utility? 25 1-617-542-0039 MR. LERNER: Do you see that? Do Asked and answered, and DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007580 ALI PARTOVI - 10/10/2017 1 mischaracterizes the testimony. 2 THE WITNESS: 3 Page 54 The term "more powerful social utility" doesn't ring a bell. 4 MR. GODKIN: Q. Okay. And then the last 5 sentence of this paragraph states, "Developers also 6 benefit from Facebook Platform as it gives them the 7 potential to broadly distribute their applications 8 and even build new business opportunities." 9 see that? Do you 10 A. Yes. 11 Q. Does that refresh your recollection as to 12 whether you recall Mr. Zuckerberg or someone else 13 talking about Facebook Platform and providing new 14 business opportunities to developers? 15 16 MR. LERNER: Same objections, and mischaracterizes the prior testimony. 17 THE WITNESS: That language I definitely 18 recall hearing from Facebook, but I don't recall 19 whether it was in this document or from Zuckerberg 20 on stage or various other Facebook communications. 21 But to broadly distribute applications and build new 22 business and opportunities were definitely things 23 that Facebook in multiple different ways was touting 24 as the benefits of the platform for developers. 25 1-617-542-0039 MR. GODKIN: Q. And was that one of the DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007581 ALI PARTOVI - 10/10/2017 Page 55 1 things that you considered in deciding to go ahead 2 and build an application on the Facebook Platform? 3 4 MR. LERNER: Asked and answered, and it's vague as to time. 5 THE WITNESS: I think we saw that as 6 marketing. 7 critical to us, namely the ability to communicate 8 with customers and build lasting customer 9 relationships. 10 The things I said earlier were more MR. GODKIN: Q. Then if you turn to the 11 third page of Exhibit 4, at the top there's a 12 section entitled "How will Facebook deal with 13 applications that compete with one another or even 14 compete with Facebook-built applications?" 15 read that section quickly. 16 (Pause.) 17 THE WITNESS: 18 MR. GODKIN: 19 Can you Yeah. Q. Do you recall reading this paragraph before? 20 MR. LERNER: 21 THE WITNESS: Asked and answered. I don't recall reading it in 22 this document, but I recall it being an explicit 23 promise from Facebook that applications from 24 third-party developers would have a level playing 25 field with applications built by Facebook, and that 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007582 ALI PARTOVI - 10/10/2017 Page 56 1 third-party applications and Facebook's native 2 applications would compete for consumer attention 3 based on merit. 4 ten minutes earlier. 5 Those are things I said, you know, MR. GODKIN: Q. Right. 6 A. So I recall those things being explicit 7 promises, but I don't recall whether I saw them in 8 this document itself. 9 Q. Do you recall whether Mr. Zuckerberg made 10 that point when he gave his speech at the F8 in 11 2007? 12 MR. LERNER: 13 THE WITNESS: 14 MR. LERNER: -- for about the tenth time. 15 MR. GODKIN: Q. 16 Asked and answered -I don't remember that. Did anybody else other than Mr. Zuckerberg make speeches at the F8? 17 MR. LERNER: That's -- 18 MR. GODKIN: Q. 19 MR. LERNER: -- also asked and answered 20 multiple times. 21 22 -- in 2007? THE WITNESS: I don't remember. I think I said "probably." 23 MR. GODKIN: Q. Right. 24 A. It's just very hazy. 25 Q. Well, to the extent that it's possible 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007583 ALI PARTOVI - 10/10/2017 Page 75 1 And I believe Facebook themselves was amongst the 2 different groups that we borrowed machines from. 3 Although I wasn't the one doing that, so my memory 4 of that is a bit hazy. 5 Q. 6 of the Facebook app iLike had at its peak? How many -- do you recall how many users 7 MR. LERNER: Vague and overbroad. 8 THE WITNESS: It's an estimate. 9 10 I would say 25 million, but that could be significantly off. It could be -- it could be 20 or it could be 30. 11 MR. GODKIN: Q. Somewhere between 20 and 12 30? 13 A. It was in the tens of millions. 14 Q. And do you recall approximately when the 15 peak was achieved time-wise? 16 A. 2009. 17 Q. So at the bottom of page -- you see 18 there's some page numbers, page 3 of 14, at the 19 bottom? 20 A. Yeah. 21 Q. On page 3 of 14, you answered a question 22 by stating that you pushed and pushed with Facebook 23 asking for some sort of exclusive relationship. 24 you see that? 25 A. 1-617-542-0039 Do Yeah. DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007584 ALI PARTOVI - 10/10/2017 Page 76 1 Q. And what was the -- what sort of exclusive 2 relationship were you pushing for? 3 A. 4 Facebook where we'd have a contractual commercial 5 relationship with them. 6 where we would be the exclusive provider of music, 7 music-related features on Facebook. 8 Q. And what did Facebook respond? 9 A. I mean, this is what I remember, is they So we had hoped to have a partnership with And, you know -- and one 10 weren't interested in doing any exclusive -- or 11 even -- or contractual relationship, and -- and 12 instead wanted us to build -- build an app on the 13 platform. 14 Q. 15 answered the question by saying that, "They 16 repeatedly said they won't do an exclusive 17 relationship, but would rather create a level 18 playing field where we could compete with other 19 third parties." 20 A. Yeah. 21 Q. And by "they," do you recall any 22 individual people who you were talking to Facebook 23 about this potential exclusive relationship? 24 A. I was speaking to Allison Rosenthal. 25 Q. Do you know what her job was within 1-617-542-0039 And at the top, on page 4 of 14, you Do you see that? DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007585 ALI PARTOVI - 10/10/2017 Page 77 1 Facebook? 2 A. 3 business development. 4 development or manager of business development. 5 believe she had a specific focus on music, music 6 services or the music category, but I don't remember 7 for sure. 8 Q. 9 works for Facebook? I don't remember the title, but it was Maybe director of business I Do you happen to know whether she still 10 A. I don't think she does. 11 Q. Is she somebody that you've stayed in 12 touch with over the years? 13 A. Minimally. 14 Q. Do you happen to know where she works 15 today? 16 A. I should, but I've forgotten. 17 Q. And the phrase "level playing field" 18 appears in that sentence, as well. 19 something that Allison Rosenthal said to you? 20 A. I don't recall. 21 Q. Do you remember anybody else at Facebook 22 using the phrase "level playing field"? 23 A. Matt Cohler. 24 Q. Can you spell his last name? 25 A. C-O-H-L-E-R. 1-617-542-0039 Is that DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007586 ALI PARTOVI - 10/10/2017 Page 78 1 Q. What was his title at the time he had that 2 conversation with you? 3 A. 4 might -- I might be mistaken on that, as well. 5 Q. 6 with Matt Cohler about this topic of a level playing 7 field? 8 A. I think chief product officer, but I And do you recall how many times you spoke I -- 9 10 MR. LERNER: Mischaracterizes the testimony. 11 THE WITNESS: The only conversation that I 12 remember clearly was at F8, at the F8 conference. 13 remember him saying that the Video app that Facebook 14 had built using their own platform was -- was not 15 just a one-off. 16 that henceforth Facebook's new capabilities and 17 features would be built on the platform using the 18 same -- you know, on the same level playing field as 19 third-party apps. 20 I It was that -- it was indicated So, for example, I remember him suggesting 21 that if a third party built a better video app than 22 Facebook's own Video app, the third party could 23 conceivably have -- reach more consumers than 24 Facebook's own Video app. 25 1-617-542-0039 MR. GODKIN: Q. Was what -- was this a DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007587 ALI PARTOVI - 10/10/2017 Page 79 1 speech that he was making in front of the group? 2 A. No. 3 Q. With you? 4 A. Yes. 5 Q. With anybody else besides the two of you, 6 Mr. Cohler and yourself? 7 A. 8 don't remember for sure. 9 Q. This was a one-on-one conversation. I think my brother, Hadi, was there, but I Did Mr. Cohler -- do you recall, was he 10 involved in making a presentation to the F8 on the 11 subject of this Video app Facebook had built? 12 A. I don't remember. 13 Q. All right. 14 Allison Rosenthal, do you recall anybody else from 15 Facebook talking with you about this concept of a 16 level playing field? 17 18 MR. LERNER: Mischaracterizes the testimony. 19 20 Other than Mr. Cohler and THE WITNESS: off. I don't. Sorry. This fell I don't. 21 MR. GODKIN: Q. So at the bottom of 22 page -- on page 4 of 14, the interview asks you, 23 "What made iLike think that Facebook Platform would 24 be a big deal?" 25 A. 1-617-542-0039 Do you see that? Yes. DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007588 ALI PARTOVI - 10/10/2017 Page 90 1 and efficiencies and capabilities that it -- that it 2 offered to developers, would be superior to ordinary 3 web development, would be the preferred place for 4 people to build websites and services rather than 5 just on the open web. 6 Q. 7 the bottom of the page, you respond to the question 8 by stating, "What I'd say is that anybody who is 9 currently involved in building a consumer-facing Okay. And then on the page 12 of 14, at 10 website should be thinking about whether they should 11 be building a Facebook app instead." 12 think that? 13 A. I don't see it. 14 Q. At the very bottom of the page. 15 A. Ah. 16 Q. You're asked a question, and then you 17 respond -- 18 A. Right. 19 Q. -- "what I'd say." 20 A. Yes. 21 Q. So why did you make that statement? 22 A. Because I believed that the -- all the 23 benefits that one could have of building a website 24 could be enjoyed within a Facebook app, and plus 25 additional benefits that were not available for a 1-617-542-0039 Why did you This is on page 12? Do you see that? DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007589 ALI PARTOVI - 10/10/2017 Page 91 1 stand-alone website, such as access to the various 2 APIs that Facebook provided and access to the social 3 graph. 4 Q. 5 were basically saying you thought, given these 6 additional features, the Facebook Platform was a 7 better place to build a website than an ordinary 8 website, correct? And so do I understand correctly that you 9 10 MR. LERNER: Leading, mischaracterizes the THE WITNESS: I -- I remember thinking it testimony. 11 12 was a better place to build a service or to build a 13 business than on a stand-alone website. 14 MR. GODKIN: Q. In addition to the 15 Facebook Platform, are you aware of any -- anything 16 else that Facebook did in the 2007 to 2009 time 17 frame that encouraged third-party app developers to 18 build businesses on Facebook? 19 20 MR. LERNER: Overbroad, calls for speculation. 21 THE WITNESS: Am I aware of anything else 22 Facebook did that encouraged -- I mean, in addition 23 to Facebook Platform, a lot of things that they did, 24 I would say, fall under the umbrella of the term 25 "Facebook Platform," but in case you don't count it 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007590 ALI PARTOVI - 10/10/2017 Page 92 1 under that, there was a different set of APIs called 2 Facebook Connect, which I can't remember whether it 3 officially was considered part of Facebook Platform 4 or separate, but these were capabilities for apps 5 that -- sorry -- for websites that were not housed 6 within Facebook, nevertheless to have access to some 7 of the same services and data and comparable APIs as 8 if -- compared to apps that were housed within 9 Facebook. And so essentially the benefits of 10 11 building an app entirely within Facebook, some of 12 those benefits were now offered to websites that 13 were not housed within Facebook, but could connect 14 to Facebook from the outside, so to speak. 15 MR. GODKIN: Q. Did iLike take advantage 16 of Facebook Connect on the iLike website portion of 17 its business? 18 A. No, we did not. 19 Q. Are you aware of any other companies that 20 you were involved with or consulting with at the 21 time who took advantage of Facebook Connect? 22 A. I don't remember specifically. 23 Q. Are you familiar with something called 24 Facebook Fund? 25 A. 1-617-542-0039 Ah, yes. DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007591 EXHIBIT 2 PAGES 99 - 121 REDACTED FOR PUBLIC FILING BG007592 ALI PARTOVI - 10/10/2017 Page 122 1 changes that Facebook was making? 2 A. Yes. 3 Q. How? 4 A. So the biggest factor is that it -- they 5 significantly impeded our ability to retain or 6 attract employees. 7 either quitting or threatening to quit, and it was 8 very difficult for us to recruit any new staff. 9 So our staff collectively was But also, the products that we sold were 10 disappearing. 11 be to approach a touring artist, such as, to use 12 your example, Tom Petty, although specifically, I 13 mean, actual examples were U2, Coldplay, other major 14 artists. 15 concert more aggressively than what we already did 16 in return for cash. 17 So one of our means for revenue would And we would offer to promote their So our app for free would notify all U2 18 fans within a five-mile radius that "There is a U2 19 concert coming up near you in the next two months." 20 But if U2 would pay us extra money, we would notify 21 all fans in a 20-mile radius or 50-mile radius to 22 reach a larger audience of, you know, prospective 23 concert ticket buyers. 24 would send those notifications to those fans. 25 1-617-542-0039 And in return for cash, we Our ability to do that and to collect that DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007593 ALI PARTOVI - 10/10/2017 Page 123 1 money required us to have an ability to notify these 2 fans, and these fans, who were our users of our app, 3 we did have that ability to notify them until that 4 ability was deprecated and we lost that ability to 5 notify those fans. 6 the thing that paying customers were paying us to 7 do. 8 9 And so we lost the ability to do So our business forecasts had to be slashed because one of our most lucrative sources of 10 revenue disappeared. 11 valuation. 12 Q. 13 that. So that impacted the Was the Facebook application -- strike 14 Was iLike's Facebook app still functioning 15 at the time the company was sold to MySpace? 16 A. It was, yes. 17 Q. And you stayed with MySpace for a period 18 of time? 19 A. Yes. 20 Q. What was your job at MySpace? 21 A. I became VP of business development at 22 MySpace. 23 Q. And how long did you stay at MySpace? 24 A. Full-time, about six months, maybe seven 25 months, and then I remained as a consultant maybe 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007594 ALI PARTOVI - 10/10/2017 Page 125 1 clear, the -- I have the protective order that's in 2 place in the case, and I believe it -- hang on. 3 me just check. 4 5 We can go off the record to MR. GODKIN: It will just take me a MR. LERNER: Let's go off the record so we second. 8 9 MR. LERNER: do this. 6 7 Let can cover this. 10 MR. GODKIN: All right. 11 MR. LERNER: You need to agree. 12 MR. GODKIN: No, I think you're right. 13 I'm agreeing with you. 14 15 THE VIDEOGRAPHER: Off the record at 12:35. 16 (Discussion off the record.) 17 THE VIDEOGRAPHER: 18 So Back on the record at 12:35. 19 MR. GODKIN: Q. Mr. Partovi, do you know, 20 or to your knowledge, did Facebook ever make a 21 public announcement that third-party apps would not 22 be on a level playing field with Facebook apps? 23 MR. LERNER: 24 THE WITNESS: 25 Vague and overbroad. Certainly not in 2007. they sometime later than that do so? 1-617-542-0039 Did Nothing comes DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007595 ALI PARTOVI - 10/10/2017 Page 126 1 to mind. 2 announced this so-called Great Apps program, which I 3 think might have been mid 2008, it inherently 4 implied it's not a level playing field because there 5 are Great Apps and then there are other apps, and 6 that the Great Apps are somehow superior -- you 7 know, given benefits not available to the rest. 8 9 What I would say is that when they So that public announcement, at least in between, you know, apps, suggested that the playing 10 field was not level. 11 explicit statement saying that Facebook's own core 12 features would be even a higher level of capability, 13 although it was -- by then it was already, you know, 14 in practice and kind of obvious. 15 MR. GODKIN: 16 I don't think there was any Q. Did you ever -- strike that. 17 I think you testified earlier this morning 18 about some conversations you had with at least one 19 person who was in corporate development for 20 Facebook, and I can't remember the name of the 21 person. 22 look at my notes. 23 A. 24 don't remember if Allison Rosenthal was. 25 Rosenthal was in business development, but -- I 1-617-542-0039 Do you remember what you told me? Or I can Dan Rose was in corporate development. I Allison DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007596 ALI PARTOVI - 10/10/2017 Page 127 1 don't understand -- I don't know what you're asking. 2 Q. 3 might have used the wrong term. 4 there somebody that you talked to or met with who 5 was in business development at Facebook? Maybe I've used the wrong -- sorry, I I meant to ask, was 6 MR. LERNER: Vague and overbroad. 7 THE WITNESS: Allison Rosenthal. And that 8 was in the pre-platform, you know, 2006, early 2007 9 time frame. There were others. Dan Rose was a 10 person that I did not communicate with so much. My 11 brother had more communications with Dan Rose. And 12 I believe he was the -- if I'm not mistaken, head of 13 business development, but I'm not sure his official 14 title. 15 development. 16 It might have been head of corporate MR. GODKIN: Q. And so I'm focusing now 17 on meetings that you personally had -- 18 A. Okay. 19 Q. -- with business development people. 20 you identify or do you recall any specific meetings 21 that you had with business development people? 22 MR. LERNER: 23 THE WITNESS: Can Lacks foundation. There were many over the 24 course of the years, but the -- if we're talking now 25 about post F8, after our app had gone through this, 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007597 ALI PARTOVI - 10/10/2017 Page 128 1 you know, period of, you know, success and then 2 having features deprecated, we -- we were trying to 3 sell the company. 4 that was led by Ethan Beard, and he was an ex-Google 5 guy. 6 business development, but, you know, he was 7 relatively new at Facebook, if I remember correctly, 8 and we were -- I'm sorry. 9 that -- I take it back. And I met with a team at Facebook I forget if he was in corporate development or Take it back. I think He was not in corporate 10 development or business development. I think 11 actually he had become the head of the platform 12 team. 13 titles I don't remember. Forgive me, because it's so long ago, and the And I remember another name now. 14 Schrage, Schrage. Elliot 15 Schrage, Schrage. So I think in 16 that sequence I told you before, after Josh Elman 17 came Elliot Schrage, and then Elliot Schrage either 18 moved to a different role or to a higher role, and 19 then Ethan Beard came in maybe under him. 20 So in that earlier succession of people 21 who we interacted with was Elliot and then Ethan. 22 And Ethan, I think, was head of the platform, but we 23 had a conversation with him relating to the 24 possibility of Facebook acquiring the company. 25 1-617-542-0039 MR. GODKIN: Q. Approximately when did DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007598 ALI PARTOVI - 10/10/2017 Page 129 1 that conversation take place? 2 A. I think in 2009. 3 Q. And who attended? 4 telephone call? 5 A. It was a meeting. 6 Q. Who attended the meeting? 7 A. I don't remember the other attendees. 8 was -- there were more than one people. 9 Q. From -- 10 A. Sorry. 11 Q. From Facebook? 12 A. From Facebook. 13 the only one from iLike. 14 Q. 15 headquarters? 16 A. It was. 17 Q. And tell me everything you can remember 18 about the discussion at that meeting. 19 A. 20 was that there -- Ethan said at some point, you 21 know -- you know, that, "We," meaning Facebook, 22 "could acquire you, but not for very much." 23 remember asking, "Why not for very much?" and him 24 saying, "Because we could just shut you down." 25 1-617-542-0039 Was it a meeting or a It There were multiple people. I think I might have been Was the meeting at Facebook's I mean, the most salient thing I remember And I And the reason this, you know, has stuck DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007599 ALI PARTOVI - 10/10/2017 Page 130 1 in my memory is because I took it as somewhat of a 2 threat, and I -- I don't know whether he intended it 3 to be conveyed as a threat or just a, you know, 4 passing observation on his part, but I remember 5 immediately notifying other people on my team that 6 now Facebook has articulated this explicit threat. 7 I don't -- it had never been articulated 8 before, that they could -- or that they would 9 consider arbitrarily shutting us down. And, you 10 know, when you're threatened, it only takes once. 11 You don't forget it. 12 lived under that threat. 13 Q. 14 had been said to -- 15 A. 16 pretty sure Nat Brown. 17 Q. 18 familiar with Facebook's privacy settings and 19 controls? 20 A. 21 I don't remember right off the top of my head what 22 they were then. 23 Q. 24 were -- were Facebook users able to control what 25 information was accessible to other Facebook users? 1-617-542-0039 So from that point on, we Who on your team did you communicate what Definitely my brother, Hadi, and I'm Back in the 2007-'8 time frame, were you I was. They've changed so many times that Do you recall at that time, 2007-2008, DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007600 ALI PARTOVI - 10/10/2017 1 2 MR. LERNER: Page 131 Overbroad and calls for speculation. 3 THE WITNESS: You know, my recollection of 4 this is hazy, but with that giant disclaimer, what I 5 remember is that at the time that the platform first 6 opened up, meaning the first F8, the controls 7 offered to consumers were not very much, and -- 8 some, but not very much. 9 And in particular, what I remember as 10 pertains to our discussion is that third-party apps 11 like ours could, through one user, see the data of 12 that user's friends, as I mentioned earlier, as long 13 as though the one who was our customer himself or 14 herself could see those -- his friends' information. 15 So if our customer's John, and his friend 16 is Mary, if John can see Mary's birthday, then we 17 could also see Mary's birthday, as long as John gave 18 us permission. 19 was restricted, but I don't remember when or exactly 20 what the new restriction was. 21 At some point I think that ability MR. GODKIN: Q. Now, fast-forward to like 22 2014. 23 knowledge of the Facebook Platform at that time 24 vis-a-vis any of the businesses you invested in or 25 consulted for? 1-617-542-0039 In 2014, did you have anything -- any DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007601 ALI PARTOVI - 10/10/2017 Page 167 1 conference called F8, right? 2 A. Yeah. 3 Q. And your testimony was that iLike had 4 already taken an investment from all the VC 5 investors at least prior to F8, right? 6 A. 7 Ventures and a strategic investment from 8 Ticketmaster. 9 Q. Correct. The main investors were Khosla And you have testified a little bit today 10 about what you called some promises. 11 question for you, which is, are you testifying that 12 anyone at Facebook actually promised you that 13 Facebook would only develop its products after F8 14 like other app developers as apps? 15 MR. GODKIN: 16 THE WITNESS: And I have a Objection. I don't remember whether the 17 word "promise" was used. 18 realm of, "We will not do this," or, "We will only 19 do that." 20 I remember it more in the So -MR. LERNER: Q. Is it your testimony that 21 anybody even represented to you that Facebook would 22 never develop core products after F8? 23 MR. GODKIN: 24 THE WITNESS: 25 Objection. So the way the FAQ here states jives with what I remember the 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007602 ALI PARTOVI - 10/10/2017 Page 168 1 representations from Facebook executives in person, 2 which was applications from third-party developers 3 would be on a level playing field with applications 4 built by Facebook. 5 6 MR. LERNER: Do you see anything there about Facebook core products there? 7 MR. GODKIN: 8 THE WITNESS: 9 Q. Objection. So no, not in that FAQ. I remember Matt Cohler representing to me at F8 that 10 Facebook's own new features would be built using the 11 platform. 12 MR. LERNER: Q. And so your testimony is 13 that Mr. Cohler represented to you that from that 14 date forward, all Facebook new features would be 15 built as apps on the platform? 16 A. 17 "all," if they had made -- you know, if they had 18 made modest changes to the other parts, we would not 19 have been surprised, but dramatic changes, we would 20 have been surprised and we were surprised. 21 Q. 22 get to not more or less, but exactly what you claim 23 Mr. Cohler represented to you. 24 represent to you that from that day forward, 25 Facebook would never develop its own core products 1-617-542-0039 More or less. Okay. You know, when you say Let's back up. I just -- I want to Did Mr. Cohler DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007603 ALI PARTOVI - 10/10/2017 Page 188 1 Plaintiff's representations in this complaint, you 2 were neither a advisor with an agreement nor 3 yourself initially a shareholder, correct? 4 MR. GODKIN: 5 THE WITNESS: 6 Objection. I was a shareholder at this point. 7 MR. LERNER: Q. Understood. But you only 8 became a shareholder after your brother transferred 9 shares to the entity that you and he share, correct? 10 A. 11 though. 12 Q. Okay. 13 A. So at the time of this Q and A, I was a 14 shareholder. At the time of F8, I was a 15 shareholder. Whether I was an advisor or not is a 16 semantic. 17 them. 18 I was informally. 19 Q. Okay. 20 A. You didn't ask, but I'll say that the word 21 "induce" here is not how I would describe my role at 22 all. 23 Q. How would you describe your role? 24 A. So what it says here was that I, as an 25 ally -- you know, in my capacity as an ally of 1-617-542-0039 Yes. All of that was prior to 2007, I think that was in 2005 or '6. I was -- I was helping my brother help He was a formal advisor, and -- you know, and DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007604 ALI PARTOVI - 10/10/2017 Page 189 1 Facebook, was committed to helping them grow their 2 platform and to induce developers to participate. 3 While I was a shareholder of Facebook, my main 4 allegiance was to my own corporation, iLike, and I 5 was committed to helping iLike build its business. 6 To the extent that the platform on its face had 7 benefits that everybody could see, I was touting 8 those benefits, but not with any inducement goal in 9 mind. And, you know, it wasn't -- I would never 10 11 have described it as saying I was committed to 12 helping them -- helping Facebook grow that operating 13 system or to induce anyone to doing anything. 14 committed to helping iLike grow. 15 Q. 16 get an exclusive deal, right? 17 A. 18 launched, yeah. 19 Q. Right. 20 A. Which is, frankly, what any company would 21 do. 22 Q. 23 depending on Facebook, correct? 24 A. Did I understand at the time? 25 Q. And you understood very well by, for 1-617-542-0039 Indeed. As you testified, you tried to That's correct. Right. I was Before the platform You understand there were risks in Yes. DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007605 EXHIBIT 3 REDACTED FOR PUBLIC FILING BG007606 EXHIBIT 4 REDACTED FOR PUBLIC FILING BG007607 EXHIBIT 5 REDACTED FOR PUBLIC FILING BG007608 EXHIBIT 6 PORTIONS REDACTED FOR PUBLIC FILING BG007609 BERNARD HOGAN, PH.D. - 07/26/2017 · 1 2 SUPERIOR COURT OF CALIFORNIA 3 COUNTY OF SAN MATEO 4 -----------------------------------x 5 SIX4THREE, LLC, a Delaware limited : 6 liability company, 7 Plaintiff 8 9 : v. FACEBOOK, INC., a Delaware : Case No.: : CIV 533328 : 10 Corporation and DOES 1 through 50, : 11 Inclusive : 12 13 Defendants : -----------------------------------x 14 15 Videotaped Deposition of BERNARD HOGAN, Ph.D. 16 Washington, D.C. 17 Wednesday, July 26, 2017 18 12:47 p.m. 19 20 21 22 Job No.: 23 Pages 1 - 346 24 Reported by: 1-617-542-0039 BO-132111 Melissa Mandell DTI Court Reporting Solution - Boston www.deposition.com BG007610 Volume II Bernard Hogan, Ph.D. 1 Confidential Six4Three, LLC vs. Facebook, Inc., et al. SUPERIOR COURT OF CALIFORNIA 2 COUNTY OF SAN MATEO 3 4 5 6 7 8 9 10 SIX4THREE, LLC, a Delaware limited liability company, ) ) ) ) Plaintiff, ) ) v. ) ) FACEBOOK, INC., a Delaware ) corporation and DOES 1 ) through 50, inclusive, ) ) Defendants. ) ____________________________ ) Case No. CIV 533328 11 12 13 14 15 ***CONFIDENTIAL*** Videotaped deposition of BERNARD HOGAN, PH.D. 16 (Volume II, pages 347 - 469 inclusive) 17 London, England 18 Thursday, October 26, 2017 19 20 21 22 24 Reported by: Leah Willersdorf, ACR, MBIVR, QRR2, International Participating Member NCRA. 25 Job No. 10036637 23 Page 347 www.aptusCR.com BG007611 BERNARD HOGAN, PH.D. - 07/26/2017 Page 45 1 paragraph -- or number eight on that page. 2 recall that? 01:37:38 3 A. Yes. 01:37:39 4 Q. So what did you understand paragraph eight 01:37:39 5 Do you 01:37:36 to mean? 6 01:37:42 MS. MEHTA: Objection; foundation, calls 01:37:44 7 for a legal conclusion, purports to call for expert 01:37:45 8 opinion from a lay witness, irrelevant. 01:37:49 9 A. So when I was developing applications on 01:37:52 10 Facebook, part of that required me to sort of look 01:37:56 11 at Facebook's code. 01:37:59 12 packages, for example. 13 we can use a programming language. 14 identified I teach one called Python. 15 Python package for -- that helps you access Facebook 01:38:14 16 data. 01:38:18 17 then you can get the appropriate data. 18 offered some various code and endpoints on their 01:38:26 19 websites. 01:38:31 20 had offered it for me to use as a developer, then I 01:38:36 21 could use it as a developer. 01:38:40 There are things called Packages are ways in which 01:38:03 I had previously 01:38:07 So there's a 01:38:10 22 You submit the appropriate credentials and Q. 01:38:22 I understood this to mean that if they Earlier in the deposition, you made 23 reference to something called FQL. 24 that? 1-617-542-0039 Facebook had 01:38:42 Do you recall 01:38:44 01:38:47 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007612 BERNARD HOGAN, PH.D. - 07/26/2017 1 Page 57 So Graph Search seemed like it would be a 01:53:26 2 way to simplify this task of querying Facebook for 01:53:29 3 this data and showing that data to the user. 01:53:32 4 Q. You testified a few minutes ago regarding 01:53:36 5 limitations on the amount of data that could be 01:53:42 6 queried. Do you recall that? 01:53:46 7 A. Yes, I do. 01:53:49 8 Q. Is there a technical term for that that 01:53:49 9 10 you're familiar with? A. 01:53:52 Oh you're -- are you -- 01:53:53 11 MS. MEHTA: 01:53:54 12 THE WITNESS: 13 MS. MEHTA: Objection -- hold on. Oh, I'm sorry. 01:53:56 Objection; calls for 01:53:57 14 speculation, foundation, purports to call for expert 01:53:57 15 testimony from a lay witness. Now you can go ahead. 01:54:00 So I had originally -- or I had previously 01:54:05 16 A. 17 spoke about the fact that you could only get 5,000 01:54:08 18 friendships back from a single query. 01:54:13 19 of limiting. 20 is limited by a platform in a number of different 01:54:20 21 ways, but mainly it's volume and velocity. 01:54:23 22 volume is limiting how much data the developer or 01:54:30 23 the developer's application -- sorry -- volume is 01:54:36 24 how much data the application can receive. 01:54:40 1-617-542-0039 That's a kind So you can limit the data -- or data 01:54:16 So Velocity DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007613 BERNARD HOGAN, PH.D. - 07/26/2017 Page 58 1 is how fast -- velocity is how fast the data can be 01:54:45 2 queried. 01:54:51 3 So 5,000 is an example of volume. You can 01:54:52 4 only receive so much data per query. 5 how many queries you can make under a specific time 01:55:00 6 period, and that's call rate limiting. 01:55:04 7 platforms have rate limiting baked in and we 01:55:07 8 commonly consult documents to see what that rate 01:55:12 9 limiting is. Twitter, for example; if you wanted to 01:55:16 10 get friendships from Twitter, that's the get friends 01:55:20 11 permission, and you can only query that, I believe, 01:55:24 12 180 times every 15 minutes. 01:55:26 13 queried it 180 times -- say, give me the first set 01:55:38 14 of friends, give me the second batch of friends, 01:55:43 15 give me the third batch of friends -- once you get 01:55:43 16 to 180, you have to stop and wait until your 15 01:55:45 17 minutes are up and then continue. 01:55:49 18 rate limiting as well, although I do not recall any 01:55:54 19 specific document from Facebook that stipulated 01:55:58 20 precisely their rate limiting. 01:56:01 21 they do rate limit and that we had to ensure that 01:56:05 22 our program did not ask Facebook too quickly for 01:56:09 23 data or else no data would be returned. 01:56:15 24 1-617-542-0039 MS. MEHTA: Velocity is 01:54:55 So a lot of And so after you've Facebook have But I do know that Objection; move to strike, 01:56:19 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007614 BERNARD HOGAN, PH.D. - 07/26/2017 1 2 Page 59 nonresponsive. Q. 01:56:19 Does the -- or did the Facebook Statement 01:56:21 3 of Rights and Responsibilities have anything, any 01:56:23 4 provisions in it regarding rate limiting? 01:56:27 5 6 MS. MEHTA: A. 7 Objection -- 01:56:31 I don't -MS. MEHTA: 01:56:33 Hold on. Objection; vague, 01:56:33 8 foundation, calls for speculation, purports to call 01:56:33 9 for expert testimony from a lay witness, and 01:56:37 10 irrelevant. 01:56:40 11 A. 01:56:44 I don't recall the phrase rate limiting in 12 the Statement of Rights and Responsibilities, but I 01:56:46 13 do know that in the Statement of Rights and 01:56:50 14 Responsibilities they do refer to limiting. Whether 01:56:51 15 that refers to the volume of data or the velocity of 01:56:54 16 data or both, I don't know. 01:57:00 17 Q. And do you still have Exhibit 1 in front 18 of you? 19 A. I do. 01:57:07 20 Q. Is it open to page 21? 01:57:09 21 A. Oh, yes. 01:57:10 22 Q. And again on the previous page 20, this is 01:57:13 01:57:04 01:57:07 23 section nine entitled Special Provisions Applicable 01:57:17 24 to Developers/Operators of Applications and 01:57:22 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007615 BERNARD HOGAN, PH.D. - 07/26/2017 1 Page 60 Websites, correct? 01:57:25 2 A. Uh-huh. 01:57:26 3 Q. And then on page 21, number nine up there 01:57:27 4 at the top states, "we can limit your access to 01:57:30 5 data." 01:57:33 Do you see that? 6 A. Yes. 01:57:35 7 Q. What is your understanding or what was 01:57:37 8 your understanding of what that meant when you read 01:57:37 9 it the first time? 01:57:40 10 MS. MEHTA: Hold on. Objection; vague, 01:57:42 11 foundation, calls for speculation, calls for a legal 01:57:43 12 conclusion, expert testimony from a lay witness, and 01:57:47 13 irrelevant. 01:57:49 14 A. 01:57:53 When I read that phrase, which was 15 important to me because I obviously wanted to abide 01:57:55 16 by the rights and responsibilities -- I didn't want 01:57:59 17 them to, you know, revoke my access or restrict my 01:58:02 18 access -- I assumed that that meant that they can 01:58:09 19 either limit -- as in give me only so much data -- 01:58:15 20 in terms of volume or rate limit, as in only give it 01:58:19 21 to me so fast. 01:58:24 22 23 Q. And what is it about that sentence that 01:58:25 led you to believe that that's what it meant? 24 1-617-542-0039 MS. MEHTA: 01:58:31 Same objections. 01:58:35 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007616 BERNARD HOGAN, PH.D. - 07/26/2017 1 A. Nothing really. Page 61 I mean, the word limit is 01:58:36 2 there, but also it's not the sentence that gave me 01:58:39 3 that impression. 01:58:42 4 download social network data from a variety of 01:58:44 5 sources and that I was interpreting this in line 01:58:48 6 with the similar statements from Twitter or LinkedIn 01:58:52 7 or other platforms -- Reddit, for example -- that 01:58:56 8 also limit data in specific ways. 01:59:00 9 Q. It's the fact that I Did the word limit have particular 10 significance to you? 11 MS. MEHTA: 12 13 14 15 01:59:04 01:59:07 Same objections, asked and 01:59:09 answered. A. 01:59:10 You mean, to the extent that it made me 01:59:12 think of rate limiting or limiting by volume? Q. 01:59:16 Did you understand when you read this 01:59:20 16 sentence that we're talking about that it gave 01:59:21 17 Facebook the right to terminate access to data at 01:59:25 18 some period in time? 01:59:31 19 MS. MEHTA: 20 A. Same objections. This statement 01:59:34 21 to me seems like -- that they could slow down data. 01:59:37 22 And also as my work evolved and I'm sort of using 01:59:40 23 Facebook more for more kinds of data, that just 01:59:48 24 reinforced my understanding of that. 01:59:54 1-617-542-0039 So not in this statement. 01:59:33 So the fact DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007617 BERNARD HOGAN, PH.D. - 07/26/2017 Page 62 1 that they said, we'll only give you 5,000 01:59:58 2 friendships at a time, or that you can only do, I 02:00:01 3 believe, 60 queries in 60 seconds. 02:00:04 4 their rate limit. 5 But that's -- so the fact that they had limited data 02:00:12 6 in some ways and that they said that they limit 02:00:15 7 access to data, that just seemed to make sense to 02:00:20 8 me. 02:00:24 I don't -- I can't confirm that. 02:00:08 At any point in time, say, up until the 02:00:24 10 date of this document, which is December of 2012, 02:00:29 11 did you have an understanding that Facebook was 02:00:33 12 reserving the right to cut off access to data 02:00:37 13 completely? 02:00:41 9 Q. I think that's 14 15 MS. MEHTA: A. Same objections. 02:00:43 I do not know if I had read anywhere in 02:00:46 16 particular that that's the case, but I had assumed 02:00:49 17 that if you did not abide by these terms and 02:00:52 18 conditions, they would revoke your developer key. 02:00:55 19 The developer key is what allows you to talk to 02:00:59 20 Facebook. 02:01:02 21 if you don't abide by these conditions, they would 02:01:03 22 revoke that. 02:01:07 23 Q. 02:01:09 24 And so I had assumed that at some point, What was your understanding if you did abide by their rules and regulations? 1-617-542-0039 02:01:11 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007618 BERNARD HOGAN, PH.D. - 07/26/2017 1 2 MS. MEHTA: A. Page 63 Same objections. 02:01:15 That I would -- that developers would be 02:01:16 3 treated fairly, that they would be able to access 02:01:19 4 the data that is stipulated by Facebook as being 02:01:21 5 accessible. 02:01:26 6 Q. 02:01:29 And you've testified a little bit about 7 two apps that you developed. What were the names of 8 those apps? 02:01:38 9 A. 02:01:39 02:01:33 One is call NameGenWeb and that's -- the 10 reason it's called that is because in social network 02:01:42 11 analysis, the technique for eliciting friendships is 02:01:47 12 called a name generator. 02:01:51 13 people do you know? 14 that are important to you? 15 question. 16 I called it NameGenWeb. And so I'd say, how many How many people do you know 02:01:55 That's a name generator 02:01:57 So this being an online version of that, 02:02:00 02:02:03 17 The other application is called College 02:02:07 18 Connect, and that's because it's about connecting 02:02:08 19 people to their friends in such a way that they 02:02:15 20 could learn more about colleges. 02:02:19 21 22 23 24 Q. Just to put a timeframe on this, 02:02:22 approximately when did you develop NameGenWeb? A. So NameGenWeb started in -- definitely at least in 2008. 1-617-542-0039 02:02:24 02:02:28 While I was still at the University DTI Court Reporting Solution - Boston www.deposition.com 02:02:32 YVer1f BG007619 BERNARD HOGAN, PH.D. - 07/26/2017 1 Page 67 it as? 02:06:50 2 MS. MEHTA: Objection; foundation, 02:06:51 3 speculation. 02:06:51 4 A. 02:06:54 5 So I'm not entirely sure if your mean this but -- 02:06:58 6 Q. Let me ask a different question. 02:06:59 7 A. Sure. 02:07:00 8 Q. Are you familiar with something call Graph 02:07:00 9 10 API Version 2? A. 11 02:07:02 Two, yes. MS. MEHTA: 02:07:05 Objection; leading. 02:07:06 12 A. I am familiar with Graph API Version 2. 02:07:07 13 Q. And what is your understanding of what 02:07:09 14 Graph API Version 2 or 2.0 is? 02:07:11 15 MS. MEHTA: 02:07:15 Objection; foundation, 16 speculation, purports to call for expert testimony 02:07:15 17 from a lay witness, and irrelevant. 02:07:19 18 A. So what they announced in 2014 was Graph 02:07:22 Previously, when I was discussing a change 02:07:27 19 API 2.0. 20 in 2010, that was Graph API 1.1. 21 the change or the ensemble of changes to the way 02:07:38 22 that a application can talk to Facebook that led to 02:07:43 23 the sort of way I couldn't do my work anymore. 02:07:47 24 Q. 1-617-542-0039 Graph API 2.0 is 02:07:31 And just so that the record is clear, can DTI Court Reporting Solution - Boston www.deposition.com 02:07:52 YVer1f BG007620 BERNARD HOGAN, PH.D. - 07/26/2017 Page 68 1 you explain, what was it about this announcement 02:07:55 2 that caused you not to be able to do your work 02:07:59 3 anymore? 02:08:02 4 5 MS. MEHTA: Objection; assumes facts not 02:08:03 in evidence and same objections as prior. 6 A. 02:08:05 The announcement didn't prevent me from 02:08:08 7 doing my work. 8 my work. 9 had one year where both NameGenWeb was available and 02:08:16 10 College Connect was available. 02:08:22 11 when they happened, they prevented me from accessing 02:08:24 12 friendship relations on behalf of a user. 02:08:30 13 14 Q. The changes prevented me from doing They happened a year later. 02:08:12 So I still 02:08:13 But the changes, And what changes took effect in April of 02:08:34 2015? 15 02:08:38 A. So in April of 2015, that was the changes. 02:08:38 16 First of all, it required the get friends 02:08:42 17 permission, but that's okay. 02:08:44 18 know, just added that permission in if it gave the 02:08:47 19 equivalent data, but it did not give the equivalent 02:08:51 20 data. 02:08:54 21 also authorized an application. 22 We could have, you Instead, it only gave data about friends that 02:08:58 So as an example, you could see -- so 23 let's say I want to make a wedding planner. 24 you could, say, have a whole list of a person's 1-617-542-0039 02:09:00 Before, 02:09:04 02:09:08 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007621 BERNARD HOGAN, PH.D. - 07/26/2017 Page 69 1 friendships and then you could select which one's 02:09:13 2 going to be the photographer, which ones' going to 02:09:15 3 be the bridesmaids, and which ones are invited or 02:09:17 4 not invited. 02:09:21 5 planner, you would have to say, hey, every single 02:09:24 6 one of my friends on Facebook, please add this 02:09:28 7 application so that I can make a wedding planner. 02:09:31 8 Q. 9 Now, if you wanted to do a wedding Why is that a problem? 02:09:36 MS. MEHTA: 02:09:38 Objection; purports to call 10 for expert opinion from a lay witness, irrelevant, 02:09:39 11 foundation, speculation. 02:09:41 12 A. For the case of a wedding planner, it 02:09:45 13 would be a minor inconvenience perhaps. 14 slow the app down. 15 inconvenient. 16 all of a user's friends or almost all of a user's 02:10:02 17 friends back to that user, there is no reasonable 02:10:04 18 way that I would be able to spam a user's friends to 02:10:08 19 say, you should also add this application so that 02:10:14 20 your friend can visualize their social network. 02:10:18 21 It's just a sort of interaction that's not very -- 02:10:21 22 not very common, not very meaningful. 02:10:24 23 something that would be inappropriate. 24 1-617-542-0039 It would 02:09:48 It would make it somewhat 02:09:55 In my case, where I'm trying to show 02:09:57 Just it's 02:10:30 Facebook have themselves tried to prevent DTI Court Reporting Solution - Boston www.deposition.com 02:10:33 YVer1f BG007622 BERNARD HOGAN, PH.D. - 07/26/2017 Page 70 1 spamming on their site. 2 years ago, when companies like Zynga, who owned 02:10:39 3 Farmville, would post all sorts of Farmville 02:10:44 4 invitations on a person's wall. 02:10:48 5 considered very distasteful and most people did not 02:10:52 6 like that. 02:10:55 7 inhibit my work either because Facebook would 02:10:59 8 perceive it as spamming or because people in a 02:11:04 9 person's social network would consider it as 02:11:07 inappropriate. 02:11:09 10 11 12 13 Q. There was a time, say five 02:10:36 And that was So employing that practice would only And so what happened on April -- was it 02:11:11 April 30th, 2015? A. 14 02:11:14 I believe it was -- 02:11:18 MS. MEHTA: 02:11:18 Objection; vague and prior 15 objections. 02:11:20 16 A. Yes. 02:11:20 17 Q. What happened on April 30th, 2015 with 02:11:22 18 respect to your two apps, NameGenWeb and College 02:11:27 19 Connect? 02:11:29 20 21 22 MS. MEHTA: Objection; calls for expert 02:11:31 opinion from a lay witness, vague, and irrelevant. A. 02:11:31 So approximately April 30th, 2015, if I 02:11:36 23 was to query Facebook for the friendships of an 02:11:41 24 individual or -- I mean, I'm not querying it. 02:11:47 1-617-542-0039 My DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007623 BERNARD HOGAN, PH.D. - 07/26/2017 Page 71 1 application is querying it on behalf of a user. 2 my application is querying Facebook, it would return 02:11:51 3 no data. 02:11:56 4 developers of this through a thing called Breaking 02:12:03 5 Changes. 02:12:06 6 our app would no longer work because our app used 02:12:11 7 queries that would no longer function. 02:12:14 8 9 12 And so we were well aware of the fact that Let me now ask the court 02:12:18 reporter to mark as Exhibit Number 2 this document. 02:12:20 (Exhibit 2 was marked for identification 02:12:44 and was attached to the transcript). Q. Hogan Exhibit 2, Dr. Hogan. 14 Exhibit 2? A. 02:12:45 Placed in front of you, we've marked as 13 15 02:11:50 Facebook had notified myself and other MR. GODKIN: 10 11 If 02:12:45 Can you identify Hogan 02:12:49 02:12:51 Yes. This is a paper that I wrote for a 02:12:52 16 conference called Quantitative Methods in the Social 02:12:55 17 Sciences 2. 02:13:00 18 University of Amsterdam and this was the paper that 02:13:03 19 I submitted which was a way of introducing the 02:13:07 20 ability to represent a person's social network via 02:13:13 21 Facebook. I use this -- in this paper, I describe 02:13:19 22 how certain connections, certain friendships in my 02:13:23 23 friendship network were more important to me, more 02:13:30 24 personally important and that they could be 02:13:34 1-617-542-0039 This conference took place at the DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007624 BERNARD HOGAN, PH.D. - 07/26/2017 Page 72 1 identified through various statistical means that 02:13:37 2 are available to social network researchers. 02:13:45 3 Q. 4 And if you turn to -- strike that. 02:13:53 What is the date of this publication? 02:13:58 5 A. This publication is not dated but it -- 02:14:01 6 Q. If you look at the second page. 02:14:04 7 A. Oh, well. Yeah, I was going to say it was 02:14:07 8 December 2nd, but it's actually -- yes, it says here 02:14:07 9 December 1st, 2008. 02:14:10 10 Q. Is this the first publication that you 02:14:11 11 authored concerning Facebook -- 02:14:15 12 MS. MEHTA: 02:14:19 13 Q. 14 15 A. Irrelevant. -- or were there other ones? 02:14:19 MS. MEHTA: 02:14:21 Irrelevant. It's reasonable to assume that previous 02:14:23 16 publications that I have authored, particularly one, 02:14:26 17 a book chapter called "Using Information Networks to 02:14:30 18 Elicit Social Behavior" or something to that 02:14:35 19 nature -- it's in the book the Handbook of Online 02:14:40 20 Research Methods by Fielding, Lee, and Blank -- it's 02:14:43 21 reasonable to assume that I would have mentioned 02:14:50 22 Facebook in that document. 02:14:53 23 document where I am doing research explicitly on 02:14:57 24 Facebook. 02:15:01 1-617-542-0039 But this is the first DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007625 BERNARD HOGAN, PH.D. - 07/26/2017 1 Q. Page 73 At the time you wrote this article, do you 02:15:03 2 know approximately how many people were using 02:15:07 3 Facebook as a social network? 02:15:10 4 MS. MEHTA: 02:15:13 Objection; foundation, calls 5 for speculation, purports to call for expert opinion 02:15:14 6 from a lay witness. 02:15:17 7 A. Approximately this time, I believe around 02:15:20 8 170 to 200 million people were -- had joined 02:15:25 9 Facebook. 02:15:29 10 Q. It may be more. On the second page of the article, there's 02:15:35 11 a Roman numeral three which is entitled Other 02:15:42 12 Network Data Available Through Facebook. 02:15:46 13 that? Do you see 02:15:50 14 A. Yes, I do. 02:15:50 15 Q. At then at the top of the second column, 02:15:51 16 item number one is photos. 02:15:52 17 A. Yes. 02:15:55 18 Q. Were photos a type of data that was made 02:15:56 19 available on the Facebook platform? 20 21 MS. MEHTA: A. 02:16:02 Same objections. Yes, that is the case. 02:16:05 Photo data was 02:16:06 22 available, and you can see here I've discussed 02:16:07 23 various applications other than mine that have used 02:16:11 24 that data. 02:16:13 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007626 BERNARD HOGAN, PH.D. - 07/26/2017 1 Q. 2 applications? 3 4 And did you ever use photos in any of your 02:16:14 02:16:18 MS. MEHTA: A. Page 74 Same objections. 02:16:21 I used profile photos in one of my 5 research endeavors. 6 but it was by a student I had mentored. 02:16:22 It was not by me in particular 02:16:25 02:16:29 7 Q. And who was that student? 02:16:33 8 A. Her name was Nina Jones and she was a high 02:16:33 9 school student. 10 2011 by the BBC. I was approached in, I believe, 02:16:35 They were running -- 02:16:39 11 Q. British Broadcasting Company? 02:16:44 12 A. Yes, by the British Broadcasting Company, 02:16:47 13 sort of a major broadcaster in the United Kingdom, 02:16:49 14 and they have both television channels -- BBC1, 02:16:53 15 BBC2 -- and radio stations -- Radio 1 and so forth. 02:16:58 16 Radio 4 is their station for like news, current 02:17:03 17 affairs, scientific programs, documentaries. 02:17:08 18 4 was running a program called So You Want To Be A 02:17:12 19 Scientist, and people would apply to be a scientist. 02:17:15 20 It was a competition. 02:17:21 21 how far snails go before they can return -- before 02:17:25 22 they know -- to lose their way. 02:17:31 23 24 Radio The lady who won it found out Nina was also in this competition and she made it to the finals. 1-617-542-0039 02:17:32 Her project was analyzing 02:17:33 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007627 BERNARD HOGAN, PH.D. - 07/26/2017 Page 75 1 Facebook profile photos. 2 she coded them for whether people were smiling, 02:17:43 3 whether there were even people in the photos, or 02:17:45 4 there were cartoons and so forth. 02:17:48 5 an analysis to reveal some features about these 02:17:50 6 photos. 02:17:54 7 were more likely to smile in their photos than men. 8 9 10 So these profile photos, 02:17:38 And then we did Q. And so for example, we found that women 02:17:56 And were you her supervisor or mentor or 02:18:01 what were you? A. 02:18:05 I was her mentor through this. She was a 02:18:06 11 high school student. 12 was to help laypeople who don't have an experience 02:18:11 13 or background in science to accomplish a scientific 02:18:15 14 proposal. 02:18:19 15 Q. The purpose of this program 02:18:08 Back at the sentence we were looking at -- 02:18:21 16 or the item regarding photos, you wrote, "Facebook 02:18:24 17 does not merely enable individuals to upload photos 02:18:27 18 but to tag these photos with other individuals who 02:18:30 19 are present in the photos." 02:18:33 20 significance of that? 21 22 23 24 MS. MEHTA: What was the 02:18:35 Objection; vague, foundation, 02:18:40 speculation, and irrelevant. A. 02:18:41 Part of this work was to introduce the 02:18:51 opportunity to do research on Facebook and to 1-617-542-0039 02:18:54 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007628 BERNARD HOGAN, PH.D. - 07/26/2017 Page 76 1 indicate -- partially to justify why I'm doing this. 02:19:00 2 At this point, people would say, why are you doing 02:19:04 3 work on Facebook? 02:19:05 4 It's not important like real life, or something like 02:19:09 5 that. 02:19:10 6 part of real life. It's just an online website. These days we tend to assume Facebook is a 7 02:19:15 So in that, I introduced not only the work 02:19:16 8 that I was doing but also to highlight other work 02:19:19 9 that was being done on Facebook. 02:19:24 In academic work, 10 we call this part of our literature review. 11 way, we have to show that we're part of a field and 02:19:31 12 not just doing whatever we feel like. Previously, 02:19:34 13 there was a paper that has used photos on Facebook 02:19:36 14 and used the fact that individuals could be 02:19:41 15 identified in photos on Facebook in order to 02:19:43 16 generate scientific insights. 02:19:45 17 they generated in this paper, the insight that I 02:19:45 18 refer to, is the fact that you may have many 02:19:52 19 friendship relations, hundreds even, but people tend 02:19:56 20 to have many fewer people identified in their own 02:20:00 21 photos and that that was an interesting insight at 02:20:04 22 the time. 02:20:08 23 24 Q. That 02:19:27 So the insight that And then turn if you would to page number 02:20:10 four of your article. 1-617-542-0039 02:20:25 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007629 BERNARD HOGAN, PH.D. - 07/26/2017 Page 77 1 A. Okay, I see that, yes. 02:20:27 2 Q. You see that? 02:20:28 3 And there's -- you have section five entitled Employing the Facebook API. 02:20:30 4 A. Yes. 02:20:36 5 Q. And you state "the Facebook API is 02:20:36 6 designed to facilitate access to data about a user 02:20:38 7 and the user's friends." 02:20:44 8 meant by that? 9 10 MS. MEHTA: A. Can you explain what you 02:20:49 Objection; irrelevant. 02:20:51 Well, that sentence means that -- or the 02:20:54 11 intent of me saying that is indicating that Facebook 02:21:00 12 have put in place a mechanism by which an 02:21:04 13 application can legitimately receive data from 02:21:07 14 Facebook. 02:21:12 15 time there were many questions about whether you 02:21:15 16 could access data from Facebook, first, and second 02:21:18 17 of all, what are the appropriate ways to do it. 02:21:21 18 some people were trying to get data by, say, 02:21:24 19 photographing what's on the screen or downloading 02:21:27 20 what's on the screen, which is called screen 02:21:31 21 scraping. 02:21:35 22 hacks to get into Facebook. 23 considered because it was based on the Statement of 02:21:42 24 Rights and Responsibilities and because it was so 02:21:43 1-617-542-0039 This is important to state because at the So People were trying to use all sorts of But this I had 02:21:38 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007630 BERNARD HOGAN, PH.D. - 07/26/2017 Page 78 1 clearly laid out that the Facebook API was the sort 02:21:47 2 of preferred way to get data. 02:21:51 3 4 Q. And then you go on in this paragraph to talk about queries which we discussed earlier -- 5 A. Yes. 6 Q. -- correct? 7 02:21:54 02:21:57 02:22:03 And one of them -- you 02:22:03 mentioned FQL. 02:22:04 8 A. Uh-huh. 02:22:06 9 Q. Do you see that? 02:22:08 10 A. Yes. 02:22:09 11 Q. Which is a restricted variant of the 02:22:09 12 commonly used SQL; correct? 02:22:10 13 A. Uh-huh. 02:22:13 14 Q. You need to say yes or no. 02:22:14 15 A. Yes. 02:22:16 16 Q. Sorry, Dr. Hogan. And then you drop a 02:22:16 17 footnote, "Special thanks are extended to Cameron 02:22:20 18 Marlow for providing guidance on this query." 02:22:24 19 you see that? 02:22:27 20 A. Yes, I see that. 02:22:27 21 Q. Now, is that the same Cameron Marlow that 02:22:28 22 Do you testified about earlier -- 02:22:31 23 A. That is correct. 02:22:33 24 Q. -- who worked for Facebook? 02:22:33 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007631 BERNARD HOGAN, PH.D. - 07/26/2017 1 2 A. At that time, he was indeed working for 02:22:35 Facebook. 3 4 Page 79 Q. 02:22:37 And you contacted him to get information 02:22:38 about how to improve your queries? 5 MS. MEHTA: 02:22:41 Objection; asked and answered, 02:22:45 6 irrelevant. 02:22:46 7 A. 02:22:47 I contacted Cameron Marlow telling him 8 that I was, you know, exploring how to represent a 02:22:53 9 network on Facebook and that I was using the get 02:22:55 10 friends endpoint, that this was pretty slow. 02:22:59 11 didn't make for a very appealing user experience. 02:23:03 12 At that point, you could say yes, get my friendship 02:23:07 13 network and you'd have to wait like, you know, half 02:23:11 14 an hour or an hour. 02:23:13 15 considerably, down to less than a minute. 16 provided by him. He -- it's worth 02:23:24 17 noting that he said to me, as I recall -- although I 02:23:29 18 cannot provide the email; I assume it's -- 02:23:34 19 there's -- I don't have a record of it but I'm 02:23:36 20 assuming maybe he might -- that he said this might 02:23:39 21 work. 02:23:44 22 It This way sped it up It did not work. That was 02:23:17 It turns out that did not work as 02:23:45 23 intended, that -- because of the 5,000 limit, the 02:23:48 24 fact that you can only get 5,000 friends. 02:23:52 1-617-542-0039 So I had DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007632 BERNARD HOGAN, PH.D. - 07/26/2017 Page 80 1 to modify this query slightly. 2 presentations, I have presented a modified version 02:24:00 3 of this query. 02:24:03 4 that modified version had I not seen this initial 02:24:07 5 query. 02:24:11 6 that funny bit about select in, select where, select 02:24:15 7 stuff which I was not an expert on, and that was 02:24:18 8 what really helped. 02:24:23 9 in my capacity to download these friendship 02:24:26 relations. 02:24:28 10 13 14 15 It made a material difference Objection; move to strike, 02:24:30 nonresponsive. Q. 02:24:31 And then if you turn to page six of this 02:24:32 publication, there's a Figure 1. A. 02:24:35 Yes. 02:24:38 MR. GODKIN: And then let me ask the court 02:24:40 reporter to mark as Exhibit 3 this document. 18 19 However, I would not have arrived at MS. MEHTA: 16 17 02:23:56 The query is quite funny looking and it's 11 12 In later 02:24:41 (Exhibit 3 was marked for identification 02:24:42 and was attached to the transcript.) 02:24:42 20 Q. And can you identify Exhibit 3? 02:25:02 21 A. Yes. 02:25:06 Exhibit 3 is a -- this is a visual 22 representation of my social network, which is to say 02:25:09 23 those things I was talking about earlier, dots and 02:25:14 24 lines. 02:25:17 1-617-542-0039 Each dot represents a person and the lines DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007633 BERNARD HOGAN, PH.D. - 07/26/2017 Page 81 1 represent the friendships between those people. 02:25:21 2 This is a visualization of my social network that 02:25:24 3 uses certain technical principles in order to kind 02:25:28 4 of group people together. And in doing so, it makes 02:25:34 5 the visualization sort of tidy and helps me identify 02:25:38 6 clusters of people, such as one cluster, which is -- 02:25:43 7 say, that's my high school friends and they're all 02:25:46 8 connected to each other, and my family and they're 02:25:48 9 all connected to each other. 02:25:49 10 11 12 13 14 15 Q. And Exhibit 3 is the same as Figure 1 in 02:25:52 the article, Exhibit 2; is that right? A. This is correct. 02:25:56 It is a -- just a -- 02:25:59 simply it's just a larger version of that one. Q. 02:26:00 And what is the significance of the lines 02:26:04 going between the clusters? 02:26:07 16 A. 17 friendship. 18 that's my partner, and that right there -- and I met 02:26:18 19 my partner during undergraduate, and that's high 02:26:20 20 school. 02:26:23 21 from high school, but my partner knows lots and lots 02:26:27 22 of people in undergraduate and also knows some 02:26:30 23 people in graduate school and so forth. 02:26:31 24 line is a friendship on Facebook that creates this 1-617-542-0039 So each line in this document represents a 02:26:09 So this would be one person here -- 02:26:14 And so my partner knows people that I know So each DTI Court Reporting Solution - Boston www.deposition.com 02:26:35 YVer1f BG007634 BERNARD HOGAN, PH.D. - 07/26/2017 1 Page 82 picture. 02:26:38 2 Q. It's a connection, if you will? 02:26:39 3 A. It is explicitly the friendship that you 02:26:42 4 get between two people on Facebook if you request to 02:26:48 5 be someone's friend and then they accept. 02:26:51 6 connection can signify all sorts of things. 7 could be a relationship -- people can befriend other 02:27:00 8 people because they want to appear popular or 02:27:04 9 because they feel social pressure. I can't tell you 02:27:05 10 the reasons why any two people are friends here, but 02:27:08 11 I can tell you that the connections themselves are 02:27:12 12 the data that comes from Facebook. 02:27:14 13 14 Q. That It 02:26:56 And does Exhibit 3 represent the Facebook 02:27:20 data before or after April 30th, 2015? 15 A. 02:27:26 Oh, this represents the sort of -- so this 02:27:35 16 is what I was referring to earlier. 17 document, you might see that -- and it's beforehand. 02:27:39 18 Before April 30th, all these people and their 02:27:43 19 friendship relations would be accessible to the 02:27:47 20 user. 02:27:51 21 Every one of these people have been aware of this 02:27:52 22 document. 02:27:56 23 Facebook wall. 24 so forth. 1-617-542-0039 This is me. In this 02:27:37 This is my friendship relations. I have posted versions of this on my My friends have commented on it and 02:28:01 After April 30th, I would have to ask 02:28:02 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007635 BERNARD HOGAN, PH.D. - 07/26/2017 Page 83 1 every single one of these people to add an 02:28:05 2 application just so I could make a picture like 02:28:08 3 this, and realistically that would never happen. 02:28:12 4 Q. 5 Put that aside. 02:28:17 Have you ever visited Facebook's offices? 02:28:23 6 A. I have. 02:28:31 7 Q. And what was the -- strike that. 02:28:33 When did that happen? 02:28:33 8 9 A. That happened twice. The first time that 02:28:36 10 happened was when I was at a -- that happens -- 02:28:37 11 apologies, that happened three times. 02:28:43 12 time, I was -- it was probably 2012, 2013. 13 met with a user experience researcher named Paul 02:28:56 14 Adams and a researcher named Eytan Bakshy. 02:29:00 15 over lunch because I was in the area. 16 The first I had 02:28:48 We met 02:29:07 Paul Adams at the time was a user 02:29:10 17 experience researcher at Facebook who had used some 02:29:12 18 of my methodologies for capturing network data to do 02:29:15 19 pretests, particularly pretests when he was at 02:29:20 20 Google. 02:29:24 21 contacted him and he said, yeah, sure, come down to 02:29:28 22 Menlo. 02:29:32 23 the first time I had met Eytan Bakshy, but we had 02:29:35 24 previously been mutually aware of each other's work. 02:29:38 1-617-542-0039 And so he knew who I was and so he -- I And I had lunch with him and Eytan. It was DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007636 BERNARD HOGAN, PH.D. - 07/26/2017 Page 98 1 A. No. 02:55:10 2 Q. Did you ever get notice that College 02:55:11 3 Connect was in violation of any Facebook policies, 02:55:14 4 for example? 02:55:16 5 A. No. 02:55:19 6 Q. Did you ever get notices that Facebook had 02:55:19 7 received complaints regarding College Connect? 8 MS. MEHTA: 9 A. No. 10 Q. Okay. 02:55:22 Objection; irrelevant. 02:55:30 02:55:30 Can you estimate the amount of 02:55:31 11 money that was invested to create the app before you 02:55:35 12 learned that Facebook was turning off access to the 02:55:39 13 data? 02:55:44 14 MS. MEHTA: Objection; vague and also 02:55:46 15 irrelevant. 02:55:47 16 A. 02:55:48 Well, the -- there is obviously the 17 initial hundred thousand dollars that was outlaid. 02:55:51 18 That was -- that did not pay for the amount of time 02:55:53 19 that the academics had put into it, their own time 02:56:00 20 paid at their rates. 02:56:02 21 the in-kind support of my department, my 22 department's IT team, the server infrastructure. 23 on top of the hundred thousand which was used for 02:56:12 24 development efforts, our trip to Detroit for field 02:56:15 1-617-542-0039 It did not take into account 02:56:07 So DTI Court Reporting Solution - Boston www.deposition.com 02:56:08 YVer1f BG007637 BERNARD HOGAN, PH.D. - 07/26/2017 Page 99 1 testing, our designer, there would probably be 02:56:19 2 another hundred thousand of in-kind support in terms 02:56:23 3 of time spent by myself and other colleagues on this 02:56:25 4 application. 02:56:29 5 Q. 6 All right. MR. GODKIN: Thank you. Let me ask the reporter to 7 mark as the next exhibit this document. 8 Hogan Exhibit 5. 9 10 11 02:56:32 This is 02:56:34 02:56:36 (Exhibit 5 was marked for identification 02:56:54 and was attached to the transcript.) Q. marked as Hogan Exhibit 5. 13 identify this exhibit? A. 02:56:55 I've placed in front of you what's been 12 14 02:56:31 02:56:56 Dr. Hogan, can you 02:56:59 02:57:01 This appears to be a story on Facebook 02:57:05 15 describing the changes that happened when they 02:57:10 16 shifted towards Graph API 2.0. 02:57:14 17 18 Q. And what was the significance of this announcement to the apps you had developed? 19 MS. MEHTA: 20 and also irrelevant. 21 02:57:19 A. 02:57:24 Objection; lacks foundation 02:57:29 02:57:30 This particular document, if -- as I 02:57:33 22 understand it, because it is describing the changes 02:57:36 23 in Graph API 2.0 and other subsequent changes -- 02:57:41 24 would indicate that there were changes to the API. 02:57:49 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007638 BERNARD HOGAN, PH.D. - 07/26/2017 Page 103 1 a heading, "A more stable platform with Versioning 03:01:26 2 and Graph API 2.0." 03:01:31 Do you see that? 3 A. Uh-huh. 03:01:34 4 Q. Yes? 03:01:34 5 A. I see that, yes. 03:01:35 6 Q. And then it goes on to talk about 03:01:37 7 important new elements of Graph API 2.0 at the 03:01:42 8 bottom of the page. 03:01:43 9 A. That is -- I see that, yes. 03:01:45 10 Q. And then at the top of the next page, it 03:01:47 11 says, "In addition to the above, we were removing 03:01:50 12 several rarely used API endpoints; visit our 03:01:54 13 changelog for details." 03:01:58 14 A. Yes. 03:02:01 15 Q. Do you see that? 03:02:01 16 A. I see that. 03:02:03 17 MS. MEHTA: 18 MR. GODKIN: 19 MS. MEHTA: 20 Okay. 03:02:03 That he sees it? 03:02:06 What -- the highlighting 03:02:08 that's on this version in gray -- 21 MR. GODKIN: 22 MS. MEHTA: 23 Objection; foundation. 03:02:10 I don't know. 03:02:11 -- is that your highlighting 03:02:12 or is that original to the document? 24 1-617-542-0039 MR. GODKIN: 03:02:13 I can't answer that. 03:02:17 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007639 BERNARD HOGAN, PH.D. - 07/26/2017 1 MS. MEHTA: Okay. Page 104 I object to the use of 03:02:18 2 highlighted documents. This isn't the form in which 03:02:19 3 the document was produced. 03:02:21 4 BY MR. GODKIN 03:02:22 5 Q. 03:02:26 Do you see any explanation of what the 6 several rarely used API endpoints are that appear on 03:02:30 7 this page of Exhibit 5? 03:02:36 8 9 MS. MEHTA: A. Objection; lacks foundation. I do not see that stipulated here. 03:02:38 I do 03:02:41 10 recall myself reviewing the changelog for the 03:02:43 11 details. 03:02:48 12 Q. And the changelog appears in Exhibit 5 -- 03:02:48 13 A. Oh, okay. 03:02:53 14 Q. -- farther back, does it not? 03:02:53 MS. MEHTA: 03:02:55 15 Objection; lacks foundation. 16 A. Do you see the page with -- 03:02:57 17 A. Yes. 03:02:59 18 Q. -- page 80 at the bottom? It says 19 Facebook Platform Changelog at the top. 20 that? 03:02:59 Do you see 03:03:02 03:03:04 21 A. I do see that, yes. 03:03:05 22 Q. And then if you turn -- well, what is a 03:03:07 23 changelog, in your understanding? 24 1-617-542-0039 MS. MEHTA: 03:03:13 Objection; purports to seek 03:03:15 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007640 BERNARD HOGAN, PH.D. - 07/26/2017 Page 105 1 expert testimony from a lay witness, lacks 03:03:17 2 foundation. 03:03:19 3 A. It's also irrelevant. So I look to the changelog because that's 03:03:21 4 where, as I understand it, applications, especially 03:03:24 5 Facebook, introduce new changes to the API. 03:03:28 6 have -- I had at that point been an app developer, I 03:03:33 7 would see in those changelog whether there was 03:03:41 8 anything of consequence to my applications. 03:03:43 9 for me, the changelog is a list of all those 03:03:47 changes. They're often very tedious. 03:03:49 Did you review the changelog that appears 03:03:52 10 11 12 Q. As I And so as part of Hogan Exhibit 5? 13 A. Yes. 03:03:55 Well, I certainly recall reviewing 03:03:58 14 the changelog in version 2.0 on -- for example, they 03:04:03 15 do a lot of changes every time -- every time they 03:04:08 16 make any sort of new changes to Facebook. 03:04:14 17 unambiguously remembering reviewing this right here. I do 03:04:20 18 Q. Which page are you looking at? 03:04:26 19 A. I'm looking at page -- it says 91 at the 03:04:29 20 bottom of it. 03:04:31 21 Q. And -- all right -- what is it that causes 03:04:34 22 you to remember unambiguously that you reviewed this 03:04:36 23 one? 03:04:40 24 A. 1-617-542-0039 Unambiguously, I remember the -- under 03:04:41 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007641 BERNARD HOGAN, PH.D. - 07/26/2017 Page 106 1 Facebook Login at the center of the page, the second 03:04:45 2 and third bullets. 03:04:49 3 of the default permission set and has its own 03:04:53 4 permission." 03:04:56 5 I also remember -- and this is the crucial one for 03:04:59 6 me -- "Friend list now only returns friends who also 03:05:01 7 use the app." 03:05:05 8 consequence to my applications. 03:05:09 9 MS. MEHTA: 03:05:15 10 Q. 11 "Friend list is no longer part That's what I was describing earlier. Both of those are of material Objection. In what regard? 03:05:15 MS. MEHTA: 03:05:15 Objection; move to strike the 12 prior response as nonresponsive. 13 current question as seeking irrelevant information. 14 A. Object to the 03:05:15 03:05:19 These two bullet points right here meant 03:05:24 15 that my applications, NameGenWeb and College 03:05:28 16 Connect, could no longer access a list of friends 03:05:32 17 and so therefore they could no longer represent 03:05:37 18 those friends to the user. 03:05:42 19 Q. They just couldn't work. If you move on to page -- with the number 03:05:45 20 93 at the bottom, there's a section entitled 03:05:52 21 Permissions. 03:05:56 22 A. Yes, I see that. 03:06:00 23 Q. And then at the very bottom, new 03:06:02 24 Do you see that? permissions in version 2.0. 1-617-542-0039 Do you see that? 03:06:03 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007642 BERNARD HOGAN, PH.D. - 07/26/2017 Page 107 1 A. Yes, I do. 03:06:06 2 Q. And then turn to the next page, page 94, 03:06:07 3 permissions no longer available in version 2.0. 4 you see that? 03:06:13 5 A. I do. 03:06:14 6 Q. Do you recall reviewing the permissions 03:06:14 7 Do 03:06:08 that were no longer available in version 2.0? 03:06:17 8 A. I absolutely do. 03:06:20 9 Q. And did these -- did the removal of these 03:06:22 10 permissions have any significance to your apps? 11 12 MS. MEHTA: A. 03:06:25 Objection; irrelevant. 03:06:30 So as I talked about earlier, College 03:06:31 13 Connect highlights which schools an individual user 03:06:34 14 on Facebook had gone to. 03:06:37 15 friends on Facebook, you could see which -- see 03:06:42 16 which schools they went to. 03:06:44 17 the permission friends_education_history. 18 friends_education_history permission that has been 03:06:57 19 removed was one that I had used in my applications. 03:07:00 20 Q. So if you have a series of That would be, here, The 03:06:49 And so the removal of that permission is 03:07:04 21 one of the things that caused your app not to 03:07:07 22 function? 03:07:09 23 24 MS. MEHTA: A. 1-617-542-0039 Objection; relevance. 03:07:09 Along with the list of friends, yes. 03:07:10 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007643 BERNARD HOGAN, PH.D. - 07/26/2017 1 Q. Page 108 Did you ever contact anyone at Facebook 03:07:18 2 after you learned about these changes in version 03:07:22 3 2.0? 03:07:26 4 MS. MEHTA: Objection; relevance. 03:07:27 5 A. I did in fact contact people at Facebook. 03:07:30 6 Q. Who did you contact? 03:07:33 7 A. Well, I should say, when I later came in 03:07:36 8 contact with people at Facebook -- as I had stated 03:07:39 9 earlier, I'm -- I was program chair of a conference, 03:07:43 10 International Conference on Web and Social Media. 03:07:51 11 It's a big conference and this conference includes 03:07:55 12 researchers from Facebook and Twitter and Google and 03:07:58 13 Microsoft in addition to academics. 03:08:02 14 15 16 Q. A. Q. 19 20 03:08:05 or is it -- was it a one-off? 17 18 Does that conference take place every year A. 03:08:07 That is an annual conference. 03:08:09 MS. MEHTA: 03:08:10 Objection, irrelevant. And when did you become the program chair? 03:08:10 MS. MEHTA: 03:08:10 Irrelevant. I was the program chair for two years 03:08:12 21 in -- for the 2013 and 2014 conferences. 22 allowed me to attend the conference for free and 03:08:22 23 then get a light to go to the conference. 03:08:25 24 1-617-542-0039 That 03:08:15 So when I was at the conference, where 03:08:30 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007644 BERNARD HOGAN, PH.D. - 07/26/2017 Page 109 1 there were researchers from Facebook who I had 03:08:32 2 befriended just as colleagues, I spoke with them 03:08:35 3 about this. 03:08:40 4 Lada Adamic -- L-A-D-A, A-D-A-M-I-C -- Dr. Adamic 03:08:43 5 was -- we just bumped into each other at the 03:08:53 6 airport. 03:08:57 7 and go like, what happened? 8 sorry. 9 conversation at this point because she knew that I 03:09:11 10 was referring to these specific changes because it 03:09:14 11 was well understood that these changes would inhibit 03:09:17 12 my applications from working. 03:09:20 13 16 17 18 Q. 21 22 Q. 03:09:02 03:09:05 Did she work -- 03:09:23 MS. MEHTA: 03:09:23 Move to -- hold on -- move to 03:09:23 Did she -- did Dr. Adamic work for 03:09:26 Facebook at that time? A. 03:09:29 At that time -- 03:09:29 MS. MEHTA: 03:09:31 Objection -- objection; foundation, relevance. Q. 03:09:31 Do you know whether she worked for 03:09:34 Facebook at that time? 23 24 And she said, I'm so strike, nonresponsive. 19 20 And so immediately, I just turned to her And we didn't even identify the topic of the 14 15 In fact, one of them, a lady named Dr. MS. MEHTA: A. 1-617-542-0039 03:09:35 Same objections. 03:09:37 At that time -- so I had known Lada for 03:09:38 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007645 BERNARD HOGAN, PH.D. - 07/26/2017 Page 110 1 some years. 2 Prior to that, she was a professor at the University 03:09:45 3 of Michigan where she had used my app, NameGenWeb, 03:09:49 4 to teach students social networks, just like how I 03:09:52 5 said teachers around the world used my application 03:09:56 6 to show social networks. 03:09:59 7 Q. At that time, she worked for Facebook. 03:09:42 She was one of them. Can you put a date, approximate date, on 03:10:02 8 this conference and this meeting at the airport with 03:10:05 9 Dr. Adamic? 03:10:09 10 MS. MEHTA: Same objections. 03:10:09 11 A. It was in May. 03:10:10 12 Q. Of which year? 03:10:11 13 A. Of -- well, 2014. This was May or June. 03:10:13 14 I know it was very hot. 15 Michigan. But it 03:10:19 16 was -- it wasn't very long after the API changes. 03:10:21 17 It was the conference immediately following that. 03:10:24 18 19 Q. That information is available. Okay. 03:10:16 And can you remember anything else 03:10:27 about your conversation with her at the airport? 20 21 It was at University of MS. MEHTA: A. 03:10:35 Objection; relevance. Not much really. 03:10:37 I do remember us talking 03:10:38 22 about it. 23 that had been said by a number of other academics 03:10:45 24 was that I -- she said, well, you can still access 03:10:48 1-617-542-0039 One of the things that she said to me 03:10:42 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007646 BERNARD HOGAN, PH.D. - 07/26/2017 Page 111 1 these friendship relations if you come to Menlo and 03:10:51 2 work with us. 03:10:54 3 I don't want to just, you know, go to Facebook and 03:10:58 4 look at data at Facebook. 03:10:59 5 a user their own data and so -- and then see how 03:11:02 6 that works. 03:11:05 7 I can do that inside Facebook but a regular Facebook 03:11:09 8 user cannot do that. 03:11:11 9 the offer. And I replied to her that I don't -- I want to be able to show And so I don't think it's very fair if So, I mean, I thanked her for I thought it was very gracious. But I 03:11:16 10 was -- you know, I wanted to be able to maintain 03:11:18 11 this ability to be done outside of Facebook because 03:11:20 12 I considered this academic research and not research 03:11:24 13 for Facebook. 03:11:30 14 Q. 03:11:32 15 the topic of these changes? 16 17 And did you ever speak with her again on MS. MEHTA: A. 03:11:34 Irrelevant. 03:11:37 So Dr. Adamic contacted me, I guess out of 03:11:39 18 the blue, months later. 19 believe, hosting my relatives in Oxford at the time 03:11:52 20 and I was out somewhere. This email comes in and 03:11:57 21 she says, I'll be reviewing the API changes at -- 03:11:59 22 with Product and, you know, whether there might be 03:12:04 23 special permissions for educational use or 03:12:10 24 something. 03:12:14 1-617-542-0039 And I was actually, I 03:11:47 So I'd like you to tell me what you use DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007647 BERNARD HOGAN, PH.D. - 07/26/2017 1 MS. MEHTA: Page 121 Same objections. 03:23:41 2 A. That is correct. 03:23:47 3 Q. And then at the bottom of page 12, you 03:23:47 4 refer to the Open Graph API 2.0. Do you see that? 03:23:51 5 A. I do see that. 03:23:54 6 Q. And you say, "This change would prove to 03:23:56 7 be most consequential while not necessarily being 03:23:58 8 the most privacy sensitive." 03:24:02 9 A. Yes. 03:24:05 10 Q. What did you mean by that? 03:24:05 MS. MEHTA: 03:24:07 11 Objection; purports to call 12 for expert testimony from a lay witness, vague, 03:24:07 13 foundation, and irrelevant. 03:24:10 14 A. So one of the reasons that were given, in 03:24:14 15 my understanding, for the removal of the friendship 03:24:21 16 permissions was that this -- that the friendship 03:24:26 17 permissions were too generous. Too many people had 03:24:28 18 access to the Facebook graph because it was part of 03:24:32 19 the basic permissions. 03:24:35 20 developer could have this. 21 generous. And so I 03:24:43 22 agree with Facebook in making it its own special 03:24:47 23 permission that you have to request and not just 03:24:50 24 giving it away for free. 03:24:53 1-617-542-0039 That means any application So that is probably too That's likely too generous. DTI Court Reporting Solution - Boston www.deposition.com 03:24:38 YVer1f BG007648 BERNARD HOGAN, PH.D. - 07/26/2017 1 Page 122 However, instead of making it its own 03:24:56 2 permission and just -- instead of making its own 03:24:58 3 permission and still having the same data available, 03:25:05 4 they made it its own permission and really 03:25:09 5 drastically restricted the scope of what data was 03:25:13 6 available. 03:25:16 7 privacy reasons. 8 applications still appear to be able to access this 03:25:23 9 data, even though it's not supposed to be available. 03:25:28 So they would say that that's for But as is evident, other 03:25:18 10 Q. What applications are you referring to? 03:25:31 11 A. I know for a -- 03:25:34 12 MS. MEHTA: Hold on. Objection; 03:25:34 13 irrelevant, purports to call for expert opinion from 03:25:35 14 a lay witness, foundation, speculation. 03:25:37 15 16 17 THE WITNESS: I knew that was coming for 03:25:42 that one. A. 03:25:44 So I was single for awhile and I had used 03:25:51 18 Tinder, which is an online dating application. 19 shows you people that are also on Tinder in your 03:26:00 20 local area. 03:26:05 21 And so you could download your photos from Facebook 03:26:08 22 to Tinder and so that they would be available on 03:26:11 23 Tinder. 03:26:14 24 you -- you know, so these people that you would see 1-617-542-0039 It 03:25:55 Now, Tinder used Facebook as a login. And after the API change, it also showed DTI Court Reporting Solution - Boston www.deposition.com 03:26:18 YVer1f BG007649 BERNARD HOGAN, PH.D. - 07/26/2017 Page 123 1 and then say this could be a prospective date. And 03:26:21 2 then you could do things like swipe left to say no, 03:26:25 3 I'm not interested or swipe right to say yes, I am 03:26:28 4 interested. 03:26:30 5 In order to make these people feel less 03:26:32 6 like strangers, there's lots of other information 03:26:36 7 there, and this information primarily comes from 03:26:38 8 Facebook. 03:26:41 9 Tinder user, who is a stranger, has friends in 03:26:46 10 common with you. 03:26:50 11 me from showing a user their own friends, Facebook 03:26:56 12 still allow Tinder to show a complete stranger the 03:27:00 13 friends that we have in common. 03:27:06 14 MS. MEHTA: Move to strike, nonresponsive. 03:27:08 That is what I meant by saying it would be 03:27:10 15 A. This includes whether Tinder -- this So even though they have inhibited 16 very consequential while not necessarily being the 03:27:13 17 most privacy sensitive. 03:27:17 18 Q. Okay, thank you. Did you or have you read 03:27:20 19 any articles in the public press about Facebook 03:27:26 20 entering into some sort of a private agreement with 03:27:31 21 Tinder to make this available? 03:27:35 22 MS. MEHTA: 03:27:38 23 24 Objection; irrelevant, foundation, speculation. A. 1-617-542-0039 03:27:38 I was curious as to how they had access 03:27:42 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007650 BERNARD HOGAN, PH.D. - 07/26/2017 Page 124 1 to -- how Facebook had -- how Tinder, sorry -- had 03:27:45 2 access to the Facebook social graph. 03:27:48 3 forwarded a story that actually featured College 03:27:53 4 Connect in it. 03:27:57 5 Ellison, not myself. 6 that specific article. 7 quoted as saying that Tinder have had some sort of 03:28:08 8 access to Facebook. 03:28:14 9 recall seeing that in print. And I was It featured my colleague, Nicole 10 it in print, in fact. 11 MR. GODKIN: I was never interviewed for 03:28:00 In that article, it is 03:28:05 That's the only time I can I was surprised to see 03:28:17 03:28:22 Let me ask the reporter to 12 mark as the next exhibit this document. 13 would be ... 03:28:24 So this 03:28:25 03:28:27 14 THE COURT REPORTER: Eight. 15 MR. GODKIN: 16 (Exhibit 8 was marked for identification 03:28:27 Eight. 03:28:27 03:28:42 17 and was attached to the transcript.) 03:28:45 18 BY MR. GODKIN 03:28:45 19 Q. 03:28:45 20 I've placed in front of you what we've marked as Hogan Exhibit 8, Dr. Hogan. 03:28:45 21 A. Yes. 03:28:48 22 Q. Can you identify Exhibit 8? 03:28:49 23 A. This is the Wall Street Journal article by 03:28:51 24 Deepa Seetharaman and Elizabeth Dwoskin that I had 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com 03:28:54 YVer1f BG007651 BERNARD HOGAN, PH.D. - 07/26/2017 Page 125 1 mentioned previously which was a document that -- 03:29:00 2 was a newspaper story describing the changes that 03:29:03 3 took place with Graph API 2.0. 03:29:09 4 5 6 Q. And this is the article that you just 03:29:13 testified about a few moments ago? A. 03:29:16 Yes, this is the article I testified a few 03:29:18 7 minutes ago that mentioned, you know, API changes 03:29:21 8 and who can still access this data. 03:29:25 9 Q. And if you turn to the third page, there's 10 an article in the middle -- in the middle of the 11 page referencing the popular dating app Tinder. 12 that what you were referring to -- 13 14 15 MS. MEHTA: Q. 18 19 20 03:29:33 Is 03:29:35 03:29:40 Oh -- sorry, go ahead. 03:29:41 -- that gave you the information that you 03:29:41 testified about Tinder and Facebook? 16 17 03:29:29 MS. MEHTA: 03:29:44 Objection; foundation, 03:29:47 speculation, irrelevant. A. 03:29:48 Yes, this is the article in question and 03:29:51 that is the paragraph in question. Q. 03:29:54 And the next paragraph, which begins 03:29:56 21 "Facebook changes doomed College Connect, an app 03:29:59 22 aimed at helping prospective first-generation 03:30:02 23 college students find friends who attend schools or 03:30:07 24 hold jobs they are considering," correct? 03:30:11 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007652 BERNARD HOGAN, PH.D. - 07/26/2017 Page 126 1 A. That is correct. 03:30:14 2 Q. And that's your app, College Connect? 03:30:14 3 A. That is my app. 03:30:18 4 Q. And the next sentence references Nicole 03:30:19 5 Ellison, a University of Michigan professor, and 03:30:22 6 she's your colleague that worked with you on the 03:30:25 7 College Connect app? 03:30:28 8 A. That is the very same Nicole Ellison. 03:30:28 9 Q. Okay. 03:30:35 10 11 Street Journal for this article? A. 12 13 14 15 Were you interviewed by the Wall I was not -MS. MEHTA: A. 03:30:39 03:30:40 Asked and answered. 03:30:40 I was not interviewed by the Wall Street 03:30:42 Journal for this article. Q. 03:30:42 Did Facebook offer College Connect the 03:30:46 16 same access to data as it apparently is giving 03:30:50 17 Tinder? 03:30:54 18 19 20 MS. MEHTA: Objection; assuming facts not 03:30:54 in evidence, foundation, speculation, irrelevant. A. 03:30:56 To the best of my knowledge, we have not 03:31:01 21 been approached by Facebook to be given the same 03:31:04 22 level of access to data that Tinder has. 03:31:08 23 closest to that would have been the previously 03:31:13 24 mentioned conversation with Dr. Adamic about an 03:31:16 1-617-542-0039 The DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007653 BERNARD HOGAN, PH.D. - 07/26/2017 1 2 Page 127 educational API. Q. 03:31:19 Did the introduction of the changes 03:31:21 3 reflected in Graph API Version 2.0 have an effect on 03:31:24 4 your research? 03:31:30 5 6 MS. MEHTA: A. Objection; irrelevant. 03:31:32 That -- the changes made the applications 03:31:36 7 that I was developing or had developed cease to 03:31:42 8 function. 03:31:47 9 agenda as a consequence. So I had to change some of my research Up to that point, I 03:31:52 10 thought that I would be continuing on a variety of 03:31:55 11 work on the Facebook API moving forward. In fact, 03:31:59 12 as I said, we changed College Connect. We changed 03:32:04 13 it to be a laboratory study. 14 study, we showed that actually showing the Facebook 03:32:10 15 social graph made a real difference to who people 03:32:13 16 were able to nominate as their -- as good people for 03:32:16 17 advice. 03:32:22 18 In that laboratory So I wanted to continue on this. 03:32:07 I have, 03:32:22 19 for example, a colleague at the University of 03:32:27 20 Swansea, Dr. Daniel Archambault, and we had put 03:32:30 21 together a grant to see what are the kinds of 03:32:37 22 visualization layouts that work best for showing 03:32:40 23 someone their social network. 03:32:45 24 continue because we cannot see Facebook social 1-617-542-0039 That research cannot 03:32:51 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007654 BERNARD HOGAN, PH.D. - 07/26/2017 1 Q. Page 172 And can I also take it that you can't 04:24:25 2 comment on the extent to which at all they did an 04:24:28 3 analysis of the Terms of Service either prior to 04:24:31 4 becoming developers or after becoming a developer? 04:24:34 5 6 7 A. Yeah, no, I don't -- no, I don't know of 04:24:39 any analysis they did. Q. Okay. 04:24:41 Let's look at Exhibit Number 8. 04:24:53 8 This is the Wall Street Journal article that came up 04:24:57 9 in your discussions with counsel for Six4Three and 04:25:10 10 that you testified about earlier today; is that 04:25:12 11 right? 04:25:14 12 A. Yes, ma'am. 04:25:14 13 Q. Okay. 04:25:15 And during your testimony, you 14 referenced your belief that Tinder had some sort of 04:25:16 15 agreement with Facebook after the API change. 04:25:22 16 you recall that? Do 04:25:25 17 A. I do recall that. 04:25:26 18 Q. And you testified that your basis for that 04:25:27 19 is this Wall Street Journal article; is that 04:25:28 20 correct? 04:25:31 21 A. It's also my experience on 04:25:33 22 Tinder and my previous understanding of how the API 04:25:38 23 works and what APIs were available or not available 04:25:42 24 that led me to ponder why it was or how it was that 04:25:44 1-617-542-0039 Not entirely. DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007655 BERNARD HOGAN, PH.D. - 07/26/2017 Page 173 1 Tinder had access to data. 2 me that the reason or the nature of that access was 04:25:53 3 because of a deal. 04:25:57 4 Q. Okay. This had confirmed for 04:25:49 So let's take a step back and break 04:25:58 5 that down. When you talk about your experience on 6 Tinder, you're discussing your experience as a user; 04:26:03 7 is that right? 04:26:06 04:26:01 8 A. That is correct. 04:26:07 9 Q. Okay. 04:26:07 10 how the Tinder app works, correct? 11 12 You don't have any knowledge as to MR. GODKIN: A. 04:26:09 Objection. 04:26:13 As an expert in the design of social media 04:26:13 13 systems and someone who also publishes on online 04:26:19 14 dating, I have understanding of how apps work. 04:26:25 15 don't have any factual details about decisions that 04:26:29 16 Tinder have made or have not made. 04:26:34 17 18 Q. Right. I You've never seen the Tinder 04:26:35 source code, right? 04:26:38 19 A. No, ma'am. 04:26:39 20 Q. Is that correct? 04:26:40 21 A. That is correct. 22 23 24 I have not seen the 04:26:41 Tinder source code. Q. 04:26:41 You've never talked to anyone at Tinder 04:26:42 about whether they have a deal or don't have a deal 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com 04:26:45 YVer1f BG007656 BERNARD HOGAN, PH.D. - 07/26/2017 1 Page 174 with Facebook, correct? 04:26:47 2 A. I have not talked to anyone at Tinder 04:26:49 3 about that. 04:26:51 4 Q. 04:26:51 You don't have any personal knowledge of 5 any relationship or deal or agreement between Tinder 04:26:54 6 and Facebook, correct? 04:26:57 7 8 A. My information about Tinder comes -- of a 04:26:59 deal between them comes solely from this paragraph. 04:27:02 9 Q. Okay. So all of the information that you 04:27:06 10 have about what you believe to be a deal between 04:27:08 11 Tinder and Facebook comes from the one paragraph of 04:27:11 12 the Wall Street Journal article. 04:27:15 13 personal knowledge, correct? 14 A. You don't have any 04:27:17 It's not fair to say that entirely 04:27:19 15 because, again, the mere fact that they can expose 04:27:20 16 friends suggests that they had access to this data. 04:27:25 17 I know that because I have been on the app and have 04:27:30 18 observed that. 04:27:33 19 20 Q. When was the last time you were on the 04:27:35 app? 04:27:37 21 A. Oh, about a year ago. 04:27:37 22 Q. Okay. 04:27:39 23 24 So my question is -- so in 2016 sometime? A. 1-617-542-0039 04:27:41 Yes, ma'am. 04:27:41 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007657 BERNARD HOGAN, PH.D. - 07/26/2017 1 Q. Okay. Page 175 So my question is not what you 2 observed as a user of Tinder. 3 are a user of Tinder -- 04:27:42 I understand that you 04:27:45 04:27:47 4 A. Yeah, I was. 04:27:49 5 Q. -- that's -- or were a user of Tinder. 04:27:49 6 Set that aside for a moment. 7 than what you can see as a user for Tinder and the 04:27:55 8 Wall Street Journal application, you don't have any 04:27:58 9 personal knowledge of anything -- any agreement 04:28:01 between Tinder and Facebook; correct? 04:28:04 10 11 12 MR. GODKIN: A. My question is: 04:28:07 No, I don't have any knowledge of an 04:28:07 agreement. 14 there must be some sort of agreement. 15 Tinder would not have that data. Q. All I have is the understanding that agreement. 18 seeing on the app. A. 04:28:10 Otherwise, 04:28:14 04:28:17 You're assuming that they must have an 17 19 04:27:51 Objection. 13 16 Other 04:28:21 Otherwise, you wouldn't see what you're 04:28:23 04:28:25 I believe that that's a fair assumption. 04:28:26 20 There is no evidence to suggest that Tinder have 04:28:30 21 hacked Facebook because Tinder have used Facebook 04:28:34 22 and have been featured, you know, in Facebook 04:28:39 23 conferences and Facebook materials and vice versa. 04:28:43 24 So insofar as I have been able to observe that 04:28:47 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007658 BERNARD HOGAN, PH.D. - 07/26/2017 Page 176 1 Tinder and Facebook seem to get along and that 04:28:52 2 Tinder uses data from Facebook, that there must be 04:28:55 3 some sort of agreement. 04:29:00 4 nature of that agreement. 5 Q. Okay. I am not privy to the 04:29:04 Let's focus in on the question, 6 okay? 7 of any agreement between Tinder and Facebook? 04:29:05 Yes or no; do you have any personal knowledge 04:29:07 04:29:10 8 A. No. 04:29:14 9 Q. Yes or no; do you have any personal 04:29:18 10 knowledge as to what specific permissions Tinder has 04:29:20 11 or doesn't have from Facebook? 04:29:26 12 A. No. 04:29:29 13 Q. There was a question from Mr. Godkin as to 04:29:36 14 whether or not your app has some sort of agreement 04:29:39 15 with Facebook. 04:29:44 Do you recall that? 16 A. Yes, I recall that. 04:29:46 17 Q. And you testified that you have not been 04:29:48 18 approached by Facebook with respect to a special 04:29:49 19 agreement of any kind; is that right? 04:29:54 20 A. Well, I mean, previously -- you know, I 04:29:56 21 mean, Exhibit 6 would suggest that I have been 04:29:59 22 approached about a potential special agreement 04:30:02 23 referred to as the -- some sort of academic API 04:30:06 24 program. 04:30:10 1-617-542-0039 But beyond that, I have not been DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007659 BERNARD HOGAN, PH.D. - 07/26/2017 1 2 3 A. Well, I wouldn't say Yale. Page 219 I mean, if 05:11:28 they're a lawyer. Q. 05:11:29 Fair, but if somebody went to Yale or 05:11:30 4 another law school, they're going to be in a better 05:11:33 5 position than somebody without legal training, 05:11:34 6 right? 05:11:36 7 8 9 10 11 MR. GODKIN: A. Objection. 05:11:38 Well, if someone is a lawyer, that gives 05:11:39 them a certain privileged understanding of this 05:11:39 document. 05:11:43 Q. Okay. Setting that aside, when you as a 05:11:43 12 developer seek to understand the Facebook terms, you 05:11:49 13 wouldn't elevate paragraph nine or look at paragraph 05:11:51 14 nine in isolation. 05:11:55 15 terms to get an understanding of what the 05:11:58 16 relationship between the developer and Facebook is, 05:12:00 17 correct? 05:12:02 18 19 20 21 22 MR. GODKIN: A. Objection. 05:12:03 I can say that one cannot look at that 05:12:03 paragraph, paragraph nine, in isolation. Q. Okay. 05:12:06 Let's look at page -- sorry, 05:12:08 Exhibit Number 5. 23 24 You'd have to look at all of the 05:12:10 Oh, actually, you know what? more before we get to that. 1-617-542-0039 Sorry, one 05:12:18 When you signed up as a DTI Court Reporting Solution - Boston www.deposition.com 05:12:19 YVer1f BG007660 BERNARD HOGAN, PH.D. - 07/26/2017 Page 220 1 developer to Facebook, did you believe that you were 05:12:24 2 going to have full access to all of Facebook's user 05:12:27 3 data forever? 05:12:32 4 A. 05:12:34 No, I didn't even believe I'd have access 5 to most of Facebook's user data. 6 know what data I would have access to and that 05:12:41 7 through -- and this is actually relevant to this -- 05:12:44 8 through prototyping and toying around with apps and 05:12:47 9 learning about hidden things like rate limiting, I 05:12:52 10 became more clear about what data was available. 05:12:54 11 But I -- no, I mean, Facebook's data use policies 05:12:57 12 change all the time. 05:13:01 13 time. 14 that I did not assume -- it would be totally fair 05:13:06 15 for me to say I did not assume that I would have 05:13:07 16 access to all user data for all time. 05:13:13 17 At first, I didn't 05:12:35 Their API's change all the So it would totally be fair for me to assume Q. Okay. 05:13:03 And when you first signed up to be 05:13:16 18 a developer for Facebook, did you believe that you 05:13:19 19 would have -- strike that. 05:13:21 20 When you first signed up to be a developer 05:13:22 21 for Facebook, did you believe that whatever set of 05:13:25 22 access or permissions you had at that time, you were 05:13:28 23 going to have forever? 05:13:30 24 the API was going to change and that the platform 1-617-542-0039 Or did you understand that 05:13:37 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007661 BERNARD HOGAN, PH.D. - 07/26/2017 Page 221 1 would change and that Facebook is going to evolve as 05:13:40 2 a company -- 05:13:42 3 MR. GODKIN: 4 Q. Objection. 05:13:43 -- and that your ability to access data 05:13:44 5 might evolve as Facebook does? 05:13:45 6 MR. GODKIN: 05:13:46 7 A. Objection. Well, I don't really like the word 05:13:47 8 "evolve" here. 9 But I do understand that that would change. 05:13:52 10 Facebook themselves change what's available in the 05:13:53 11 API. 05:13:56 12 Devolve may be a more accurate word. 05:13:48 However, it's important to distinguish 05:13:57 13 that I think there's some kind of data that's maybe 05:13:58 14 incidental. 05:14:03 15 numbers available for one point and then at one 05:14:07 16 point, they didn't. 05:14:08 17 functionality. 18 The movie based on Facebook is called the Social 05:14:15 19 Network. 05:14:16 20 had pretty strong understandings that social network 05:14:21 21 data would be consistently available for a long 05:14:26 22 period of time, and I certainly acted under the 05:14:30 23 expectations that such core functionality -- so core 05:14:34 24 that it's in the basic permissions -- would still be 05:14:36 1-617-542-0039 Facebook, for example, made phone That's different from core Facebook is a social network site. It calls itself a social network. 05:14:11 So I DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007662 BERNARD HOGAN, PH.D. - 07/26/2017 1 2 Page 222 available for a long time. Q. Okay. 05:14:40 So are you -- so your testimony 05:14:42 3 is -- what you're telling the jury is that when you 05:14:43 4 signed up as a developer for Facebook, you believed 05:14:47 5 that you would have access to the same set of 05:14:49 6 permissions and data in perpetuity. 05:14:52 7 MR. GODKIN: Objection. 05:14:55 8 Q. Yes or no. 05:14:56 9 A. No, I don't think that -- no, I don't 05:14:56 10 think that that's a fair statement. 05:14:57 11 Q. Okay. 12 A. No, I don't think that in perpetuity is a 13 So -- 05:15:00 05:15:02 fair characterization. 05:15:05 14 Q. Okay. 05:15:06 15 A. I think a fair characterization is that I 05:15:07 16 would have access to core data for certainly a 05:15:09 17 longer time horizon than I was given. 05:15:14 18 Q. Okay. Let me ask the question this way. 05:15:17 19 Yes or no; when you signed up as a developer, did 05:15:18 20 you believe that you were going to have access to 05:15:21 21 the same set of data and permissions in perpetuity? 05:15:23 22 Yes or no. 05:15:25 23 A. No. 05:15:27 24 Q. When you signed as a developer, did you 05:15:31 1-617-542-0039 DTI Court Reporting Solution - Boston www.deposition.com YVer1f BG007663 1 2345678901 11 23456789012345 11111111222222 BG007664 EXHIBIT 7 BG007665 Highly Confidential Ted Kramer Six4Three, LLC vs. Facebook, Inc., et al. Page 2 Page 1 1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 IN AND FOR THE COUNTY OF SAN MATEO 2 IN AND FOR THE COUNTY OF SAN MATEO 3 3 4 SIX4THREE, LLC, a Delaware ) limited liability company, ) 5 Plaintiff, 5 Plaintiff, ) vs. ) No. CIV533328 7 FACEBOOK, INC., a Delaware ) corporation, and DOES 1-50, ) inclusive, ) 9 ) 10 ___________________________________) Defendants. ) No. CIV533328 7 ) 8 ) ) 6 ) ) ) ) vs. ) FACEBOOK, INC., a Delaware ) corporation and DOES 1-50, ) inclusive, ) 9 ) 10 ___________________________________) Defendants. ) ) 11 11 12 SIX4THREE, LLC, a Delaware limited liability company, ) 6 8 4 12 VIDEOTAPED HIGHLY CONFIDENTIAL DEPOSITION OF Deposition of TED KRAMER, Volume I, 13 TED KRAMER 13 taken on behalf of Defendant, at DURIE TANGRI LLP, 14 San Francisco, California 14 217 Leidesdorff Street, San Francisco, California, 15 beginning at 9:00 a.m. and ending at 5:17 p.m. on 16 16 Friday, January 13, 2017, before JOHNNA PIPER, 17 17 Certified Shorthand Reporter No. 11268. 18 18 19 19 20 20 15 January 13, 2017 21 21 22 REPORTED BY: 22 23 JOHNNA PIPER 23 24 CSR 11268 24 25 Job No. 10029537 25 Page 3 1 APPEARANCES: 2 3 For the Plaintiff: 4 BIRNBAUM & GODKIN, LLP 5 DAVID S. GODKIN, ESQ. 6 280 Summer Street 7 Boston, Massachusetts 02210 8 (617) 307-6100 9 godkin@birnbaumgodkin.com 10 11 12 WITNESS: TED KRAMER EXAMINATION BY: MS. MILLER NUMBER Exhibit 27 Exhibit 28 13 DURIE TANGRI LLP 14 LAURA E. MILLER, ESQ. 15 CATHERINE Y. KIM, ESQ. 16 SONAL N. MEHTA, ESQ. 17 217 Leidesdorff Street 18 San Francisco, California 94111 19 (415) 362-6666 20 lmiller@durietangri.com 21 22 23 25 11 12 I N D E X For the Defendant: 13 24 Page 4 1 2 3 4 5 6 7 8 9 10 Also Present: 14 15 EXHIBITS DESCRIPTION PAGES E-mail from Facebook to 88 ted@six4three.com, Bates-stamped Six4Three 000000551 E-mail from Thomas Scaramellino to Serge 104 Belongie, et al., dated April 18, 2013, subject: Thoughts for tonight, Bates-stamped Six4Three 000000549 Exhibit 29 E-mail string beginning with an e-mail from Ted Kramer, dated June 18, 2013, Bates-stamped Six4Three 000000868 through 70 110 Exhibit 30 E-mail from Thomas Scaramellino to Tim Gildea, et al., dated June 18, 2013, subject: Terms of use & privacy policy, with attachment, Bates-stamped Six4Three 000001090 through 110 Printout of archived website pikinis.com 116 Template e-mail entitled, "Campus Marketing Ambassador," Bates-stamped Six4Three 000001594 122 16 17 18 PAGE 9 19 20 21 Exhibit 31 22 23 Exhibit 32 David Manzo, videographer. 24 25 Page BG007666 www.aptusCR.com 117 1..4 Highly Confidential Ted Kramer Six4Three, LLC vs. Facebook, Inc., et al. Page 161 Page 162 1 interest in this type of product. 2 Q. Going to the second full paragraph, the 3 second sentence reads, "If the app had continued to 4 grow at its then current rate, a very modest 5 assumption is apps tend to grow more quickly once 6 network effects are taken into account, Six4Three 7 very soon would have been able to provide unique 8 photo contextual intelligence and very large revenue 9 streams from organizing, sorting, and mining the 10 photos on Facebook." 11 The phrase "then current rate," what -12 what does the then current date -13 MR. GODKIN: Rate. 14 BY MS. MILLER: 15 Q. -- referred to? 16 A. To clarify, do you mean rate or date? You 17 said -18 Q. Date. What is the date of the then current 19 rate referenced in that sentence? 20 A. Q3 and Q4 of 2014. 21 Q. Six months? 22 A. Yes. 23 Q. So that would be July through December of 24 2014? 25 A. I would include up until -- so I will 1 change my statement. I -- I would include up until 2 the app ceased to function, so I will say April of 3 2015 as well. So we would then go three quarters, 4 Q3, Q4, and Q1. 5 Q. So if the app had continued to grow at its 6 rate over the months of July 2014 through April 7 2015, Six4 -- Six4Three would very soon have been 8 able to provide unique photo contextual intelligence 9 and very large revenue streams from organizing, 10 sorting, and mining the photos on Facebook? 11 A. Yes. 12 Q. Turn to page 27, please. 13 And then looking at the third full 14 paragraph under subsection B, the first sentence 15 reads, "Facebook did not notify Six4Three of the 16 shutting down of Graph API and the deprecating of 17 the friends photos endpoint until January 20th, 18 2015." 19 Is that an accurate statement? 20 A. Yes. 21 Q. And then on the next page in the second 22 paragraph, four sentences in, you write, "Facebook 23 provided Six4Three with notice of many different 24 changes and yet not until January 20th, 2015, did 25 Facebook send notice to Six4Three of a change that Page 163 Page 164 1 would cause Six4Three's app to shut down." 2 Is that an accurate statement? 3 A. Sorry. I apologize. Did you say we're on 4 the next page? 5 Q. Yes, sorry. Page 28, first full paragraph, 6 which starts about halfway down the page, and I'm 7 looking at the fourth sentence. 8 A. Can you repeat your question? 9 Q. Yeah. The -- the statement that "Facebook 10 provided Six4Three with notice of many different 11 changes and yet not until January 20th, 2015, did 12 Facebook send notice to Six4Three of a change that 13 would cause Six4Three's app to shut down." 14 My question was: Is that an accurate 15 statement? 16 A. Yes. 17 Q. And I won't go through all of them, but 18 this is included in several of the interrogatory 19 responses. 20 So your testimony is that Six4Three was not 21 notified of the transition from Graph API Version 1 22 to Graph API Version 2 until January 20th, 2015? 23 MR. GODKIN: Objection. 24 THE WITNESS: No, I did not say that. 25 BY MS. MILLER: 1 Q. What is inaccurate about what I just read? 2 A. The implications of what that change meant 3 were not communicated to us until January 20th, 4 2015. 5 Q. When did you first become aware that -- or 6 Six4Three would have to transition from Graph API 7 Version 1 to Graph API Version 2? 8 A. I don't remember. It was in 2014. 9 Q. Was it in May of 2014? 10 A. I don't remember. 11 Q. You recall having a conversation with 12 Mr. Gildea in May of 2014 regarding the 13 transition from Graph API Version 1 to Graph API -14 THE COURT REPORTER: I'm sorry. Can you 15 say that again? 16 MS. MILLER: Sorry. 17 Q. Do you remember -- do you recall a 18 conversation with Mr. Gildea in May 2014 regarding 19 the transition of Graph API Version 1 to Graph API 20 Version 2? 21 A. I don't remember. 22 Q. Do you recall -- so you -- you have no 23 memory of when -- between May 2014 and January of 24 2015 when you first learned of the transition to 25 Graph API Version 2? Page 161..164 BG007667 www.aptusCR.com YVer1f Highly Confidential Ted Kramer Six4Three, LLC vs. Facebook, Inc., et al. Page 181 Page 182 1 point approved the Pikinis app, correct? 2 A. Correct. 3 Q. When did Six4Three submit the Pikinis app 4 for approval? 5 A. I don't remember. 6 Q. Was it before announce -- before or after 7 the announcement that Facebook was transitioning 8 from Graph API Version 1 to Graph API Version 2? 9 A. I don't remember. 10 Q. Do you know what the approval process 11 entailed? 12 A. No. I left that to Mr. Gildea. 13 Q. Mr. Gildea submitted the Six4Three app to 14 Facebook for approval? 15 A. Correct. 16 Q. Please look at Exhibit 47. 17 And I want to direct your attention to Form 18 Interrogatory Number 8.4. 19 MR. GODKIN: You better stop, because 47 is 20 just the verification. 21 MS. MILLER: Thank you. 22 45. My apologies. Exhibit 45. 23 Q. And it's Form Interrogatory 8.4. And in 24 the first supplemental response on page 7 Six4Three 25 says that as of April 30th, 2015, 4,481 users had 1 downloaded the Pikinis app of whom 3,963 had 2 subscriptions to premium contents. 3 Do you see that? 4 A. Sorry. Where are you seeing the date? 5 Q. Oh, I was -- it was at the time Facebook 6 ended access to the friends photos endpoint, which I 7 think we've established is April 30th, 2015. 8 A. I apologize. The supplemental response or 9 the second supplemental response? 10 Q. The supplemental response on page 7. 11 MR. GODKIN: Could you read the question 12 back? I'm not sure I remember what it was. 13 MS. MILLER: Yes. 14 Q. In the first supplemental response on 15 page 7 Six4Three states that as of April 30th, 2015, 16 4,481 users had downloaded the app of whom 3,963 had 17 subscriptions to premium content. 18 That's a correct statement? And I -- I'm 19 not actually trying to -- I'm not trying to trip you 20 up with -- I know the numbers have shifted a little 21 bit, but I read that accurately? 22 A. Yes. 23 Q. And then it goes on to say that, "Six4Three 24 further notes that with its then existing user base 25 at the time Six4Three ceased operations and with Page 183 Page 184 1 absolutely no further growth in user base, product 2 development, or the additional monetization 3 Six4Three had planned, Six4Three would have obtained 4 profits amounting to 1.149569 dollars." We'll call 5 it $1.15 million. 6 THE COURT REPORTER: I'm sorry. One point? 7 MS. MILLER: One-five. 8 Q. Do you see that? 9 A. Correct. 10 Q. How did you derive that number? 11 A. In work with my investor, Mr. Scaramellino, 12 we put together a financial model based on our 13 previous results and existing user growth. 14 Q. So here you're saying, though, that this 15 number is based on no growth, correct? 16 It's -- it's -- my understanding of this, 17 and tell me if I'm wrong, is that if Six4Three had 18 4,481 users for two years and no more, 3 -- 3,963 of 19 whom had subscriptions to premium content, it would 20 have profits of $1.15 million over a two-year 21 period? 22 A. Correct. 23 MR. GODKIN: Object -- go ahead. 24 BY MS. MILLER: 25 Q. And so once a user had downloaded the app, 1 they didn't generate any additional revenue for 2 Six4Three unless they bought premium subscription 3 service, right? 4 A. Correct. 5 Q. And so if we round up the 3,963 to 4,000 6 and multiply that by 48 months and $2 per month for 7 premium subscription -- and let's just call -- call 8 it 50 months so that we have it -- it's -- it's -9 it's -- the numbers are -10 MR. GODKIN: I take it you weren't a math 11 major. 12 BY MS. MILLER: 13 Q. So the numbers are easier, we'll say 4,000 14 users at $2 per month over 50 months. That's 15 $400,000. 16 How do you get to 1.15? 17 MR. GODKIN: Objection. 18 THE WITNESS: I would have to look at the 19 model that we presented. 20 BY MS. MILLER: 21 Q. You would agree with me, though, that based 22 solely on $2 per month per user over 48 months, you 23 cannot get to $1.15 million? 24 MR. GODKIN: Objection. 25 THE WITNESS: No, I don't. Page 181..184 BG007668 www.aptusCR.com YVer1f Highly Confidential Ted Kramer Six4Three, LLC vs. Facebook, Inc., et al. Page 193 Page 194 1 for Six4Three? 2 MR. GODKIN: Objection. 3 THE WITNESS: Can you repeat your question? 4 BY MS. MILLER: 5 Q. Let me rephrase it. 6 Sitting here today, you can't point me to a 7 single other document other than Exhibits L and M 8 that include information as to whether Six4Three had 9 any actual sales of the Pikinis app? 10 MR. GODKIN: Objection. 11 THE WITNESS: To clarify your question, 12 you're saying that only these two exhibits are the 13 only examples of Pikinis generating revenue? 14 BY MS. MILLER: 15 Q. That provide data of -- that show Pikinis 16 generating revenue, yes. 17 A. No. 18 Q. I got a little muddled so I just want to be 19 clear. Other than these two exhibits, are there any 20 other documents that show actual sales of the 21 Pikinis app? 22 A. There are transaction records between Apple 23 depositing money into our bank account that 24 demonstrate sales. 25 Q. And you would be able to see that from bank 1 statements? 2 A. Correct. 3 Q. Can I have you look at Exhibit K, please? 4 What is Exhibit K? 5 A. It appears to be metrics for in-app 6 subscriptions as well as the app download. 7 Q. Do you know where this came from? 8 A. The Apple developer -- iTunes developer 9 website. 10 THE COURT REPORTER: I'm sorry. Developer? 11 THE WITNESS: Website. 12 THE COURT REPORTER: Thank you. 13 BY MS. MILLER: 14 Q. If you look back at rog Number 20 and 15 Six4Three's -- third supplemental response. I'm 16 looking at page 56, the first full paragraph. 17 The first sentence reads, "Six4Three was 18 able to identify a screenshot in its files, though 19 it cannot accurately identify the specific date of 20 the screenshot from its prior access of Apple's 21 developer website." 22 Did you generate this screenshot? 23 A. I don't remember. 24 Q. Did you provide this screenshot to counsel 25 to produce to us in this case? Page 195 Page 196 1 A. I don't remember. It could have come from 2 myself or Mr. Gildea. 3 Q. Is there anyone else this could have come 4 from? 5 A. No. 6 Q. If you flip to page 80, you'll see these 7 responses were served on December 27th, 2016, so 8 about three weeks ago. You can't remember three 9 weeks ago whether or not you provided this 10 screenshot to counsel? 11 A. I'm saying I can't remember when this 12 screenshot was provided to counsel. 13 Q. Did you provide the screenshot to counsel? 14 A. As I said, I don't remember. 15 Q. Did you take the screenshot? 16 A. I don't remember. 17 Q. And if Mr. Gildea says that he did not do 18 this, does that mean it necessarily was you? 19 MR. GODKIN: Objection. 20 THE WITNESS: Potentially, yes. 21 BY MS. MILLER: 22 Q. Is it possible that Mr. Scaramellino took 23 this screenshot? 24 A. No. 25 Q. All right. This screenshot shows 4,320 1 basic app downloads, 140 one-month app 2 subscriptions, 14 six-month app subscriptions, and 7 3 one-year app subscriptions. This formed the basis 4 of Six4Three's original claim of a total of 4,481 5 downloads, correct? 6 A. Correct. 7 Q. And Six4Three believes that this 8 information is accurate? 9 A. Yes. 10 Q. So the 4,320 -- sorry. Strike that. 11 Of the 4,320 -- start over. 12 Of the 4,481 downloads, only 140 of those 13 were one-month subscriptions? 14 A. As per the document, yes. 15 Q. And you believe that's accurate? 16 A. Yes. 17 Q. And we were discussing this. Apple doesn't 18 allow you to do recurring one-month subscriptions. 19 Do you know how many people paid for the second 20 month? 21 A. I do not. 22 Q. Do you have any way of determining that? 23 A. I don't believe so. 24 Q. And you have no way of determining whether 25 or not the basic app download was a paid download, Page 193..196 BG007669 www.aptusCR.com YVer1f Highly Confidential Ted Kramer Six4Three, LLC vs. Facebook, Inc., et al. Page 205 Page 206 1 THE WITNESS: I read this as the 2 1.15 million is the sum of capital and uncompensated 3 labor. 4 BY MS. MILLER: 5 Q. Expended by Six4Three and its team members? 6 A. Correct. 7 Q. And you believe that that's accurate? 8 A. Yes. 9 Q. How was that number calculated? 10 A. In work put together by myself and counsel 11 to determine the damages caused by the shutdown of 12 our app and our business. 13 Q. What was the nature of that work? 14 A. Providing the amount of capital that we 15 invested as well as the amount of time that we 16 invested. 17 Q. What was the capital that Six4Three 18 invested? 19 A. As I previously had stated, around 20 $250,000. 21 Excuse me. I -- I revise that. $250,000 22 was the investment. I can't remember how much of 23 that capital we had spent. 24 Q. So less than $250,000 in capital? 25 A. Correct. 1 Q. And so the uncompensated labor expended by 2 Six4Three was over $900,000? 3 A. Yes. 4 Q. How do you determine that number? 5 A. I don't have that information in front of 6 me. 7 Q. You can't tell me even the method that you 8 used to determine that number? 9 A. I need the information in front of me. 10 Q. What information? 11 A. The model that we built to approximate our 12 damages. 13 Q. Is that different than the business model 14 that you worked on with Mr. Scaramellino? 15 A. Yes. 16 Q. And you can't recall what information went 17 into the model to determine over $900,000 in 18 uncompensated labor? 19 A. At the moment, no. 20 Q. How much uncompensated labor did you 21 provide to Six4Three? 22 A. Almost two and a half years' worth. 23 Q. How much was that worth? 24 A. Hundreds of thousands of dollars. 25 Q. Did Mr. Scaramellino's work for Six4Three Page 207 Page 208 1 go into calculating the -- the 1.15 million in 2 capital and uncompensated labor? 3 A. I can't remember. 4 Q. Did Mr. Belongie's? 5 A. I can't remember. 6 Q. Did Mr. Mahoney's? 7 A. I can't remember. 8 Q. And Mr. Gildea and Mr. Reiter were 9 compensated for their labor for Six4Three, correct? 10 A. Yes. 11 Q. So their -- their -- their labor would not 12 have gone into that calculation? 13 MR. GODKIN: Objection. 14 THE WITNESS: I can't remember. 15 BY MS. MILLER: 16 Q. You have a full-time job right now, 17 correct? 18 A. Correct. 19 Q. What's your yearly salary? 20 A. I make $120,000 a year. 21 Q. And so -- how much did you make at WeWork? 22 MR. GODKIN: Objection. 23 THE WITNESS: Around a hundred thousand 24 dollars a year. 25 BY MS. MILLER: 1 Q. And you're -- those were full-time jobs? 2 A. Correct. 3 Q. And you were working ten to twenty hours a 4 week for Six4Three? 5 A. Correct. 6 Q. And you think your -- the value of your 7 labor was hundreds of thousands of dollars over two 8 and a half years for ten to twenty hours per week? 9 A. Correct. 10 Q. What is the form of the model that you used 11 to come up with this number, the 1.15 million in 12 capital and uncompensated labor? 13 MR. GODKIN: Objection. 14 THE WITNESS: I can't remember. 15 BY MS. MILLER: 16 Q. Is it in a spreadsheet? 17 A. Yes. 18 I apologize. I didn't understand what you 19 meant by form. 20 Q. Fair enough. 21 Who prepared that spreadsheet? 22 A. Myself and Mr. Scaramellino. 23 Q. When did you prepare that spreadsheet? 24 A. I don't remember. Prior to us filing this 25 complaint. Page 205..208 BG007670 www.aptusCR.com YVer1f Highly Confidential Ted Kramer Six4Three, LLC vs. Facebook, Inc., et al. Page 221 Page 222 1 August 2014 is when we were offering free downloads? 1 Q. Correct. And the -- the other one is 2 Q. That period of time included offers of free 2 August 22nd to September 30th, 2014? 3 downloads, correct? 3 A. That's correct. 4 A. It included free downloads, but it did not 4 Q. And you have no way of determining whether 5 -- I can't remember if there were -- if it also 5 or not those subscriptions were paid subscriptions, 6 included paid downloads. I believe it included paid 6 correct? 7 downloads too. 7 A. I personally do not. 8 Q. But you're not sure? 8 Q. And, in fact, the rates, based on the 9 A. I'm not sure on either side of the 9 information we have from the iTunes data, is quite a 10 question. 10 bit lower than that for paid subscriptions? 11 Q. And you can't determine how many of the 11 MR. GODKIN: Objection. 12 downloads were paid downloads and how many were free 12 THE WITNESS: They're not comparing the 13 downloads, correct? 13 same period, though. 14 A. I'm of the belief no, that we cannot. 14 BY MS. MILLER: 15 Q. If you move down to the subscription 15 Q. The Apple numbers, as I understand them, 16 revenue assumptions. Do you know where these 16 cover the entire period that Pikinis was available. 17 numbers came from? 17 A. Correct, but this assumption does not cover 18 Actually -- and I'll point you to the 18 the entire period. 19 assumption notes on the far right-hand side. 19 Q. Correct. It's much higher. And this was 20 A. I do not. 20 the period when Pikinis was being offered for free, 21 Q. It says that this was based on the data 21 including premium services for free. 22 from the actual subscriptions from July 16th through 22 A. Correct. It was also a period, though, 23 August 31st. 23 where we were marketing the app. 24 A. That's three of -- three of four of the 24 Q. Did you market the app after August 31st? 25 assumptions. 25 A. I believe so, yes. Page 223 Page 224 1 Q. What's that? 2 A. I believe so, yes. 3 Q. When did you stop marketing the app? 4 A. I don't remember how long our Facebook ad 5 campaign lasted. 6 Q. Why did you stop marketing the ad? 7 A. Based on our understanding, we were unsure 8 if our app would continue to function. 9 Q. That was in January of 2015? 10 A. No. We knew in January of 2015 that our 11 app would not function. We knew in August and 12 September that we needed to look into if our app 13 would function. So we decided not to allocate more 14 capital towards marketing something that potentially 15 could not exist. 16 Q. It took you from August of 2014 until 17 January of 2015 to determine that your app could no 18 longer exist? 19 MR. GODKIN: Objection. 20 THE WITNESS: We didn't know until we were 21 told directly by Facebook. 22 BY MS. MILLER: 23 Q. But you knew enough to stop marketing in 24 August of 2014? 25 MR. GODKIN: Objection. 1 THE WITNESS: We knew we needed to conserve 2 our capital for the future of the business. 3 BY MS. MILLER: 4 Q. What did -- what did Six4Three do between 5 August 2014 and January 2015? 6 A. We continued to monitor the app's organic 7 growth and look into how we were going to be 8 affected by the changes. 9 Q. I think I previously asked you a question, 10 you have no way of determining whether or not the 11 paid -- the subscriptions listed in this chart were 12 paid subscriptions, correct? And you answered, I 13 personally do not. 14 Is there anyone at Six4Three who knows who 15 those -- who -- whether or not the subscriptions 16 were paid subscriptions? 17 A. I don't know. 18 Q. Who would possibly know that at Six4Three? 19 A. Potentially Mr. Gildea. 20 Q. Anyone else? 21 A. I don't know. 22 Q. Would Mr. Scaramellino know? 23 A. I don't know. 24 Q. I would have to ask him? 25 A. Correct. Page 221..224 BG007671 www.aptusCR.com YVer1f EXHIBIT 8 BG007672 Confidential Timothy Gildea Six4Three, LLC vs. Facebook, Inc., et al. Page 2 Page 1 1 2 3 4 1 2 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO For the Plaintiffs: SIX4THREE, LLC, a Delaware limited liability company, 5 : : 3 Case No. CIV 533328 4 Plaintiff, 6 : 5 -v7 8 : FACEBOOK, INC., a Delaware corporation and DOES 1-50, inclusive, 9 6 7 8 : : 9 Defendant. 10 11 12 13 CONFIDENTIAL 10 Videotaped Deposition of: TIMOTHY GILDEA 11 James Kruzer BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, Massachusetts 02210 617.307.6100 Kruzer@birnbaumgodkin.com For the Defendant: Laura E. Miller DURIE TANGRI, LLP 217 Leidesdorff Street San Francisco, California 94111 415.362.6666 Lmiller@durietangri.com Also Present: 14 12 REGUS PLC 136 East South Temple Suite 1400 Salt Lake City, Utah 84111 January 10, 2017 9:07 a.m. 15 16 17 Lance Harrison, videographer 13 14 15 16 17 18 19 20 21 22 23 24 25 18 19 20 21 22 23 24 25 A P P E A R A N C E S Reported By: Vickie Larsen, CSR/RMR Job No.: 10029536 -oOo- Page 3 1 2 I N D E X 3 Page 4 1 Scaramellino to Tim Gildea and 2 Ted Kramer dated June 18, 3 4 TIMOTHY GILDEA 5 Ms. Miller 6 7 Page Exhibit 6 E-mail string 66 7 5 Exhibit 7 E-mail from Thomas 70 Mr. Kruzer 140 6 Scaramellino to Ryan Rogalski Ms. Miller 142 7 dated July 19, 2013, with 8 attachment 8 9 9 10 -oOo- 11 12 13 E X H I B I T S 14 15 No. Description Exhibit 1 E-mail from Facebook to Tim 17 Page Gildea dated December 11, 2012 20, 2013 12 Exhibit 9 E-mail string 74 13 Exhibit 10 E-mail from Thomas 78 Pikinis screen shot 85 17 Exhibit 12 E-mail from Ted Kramer dated 91 E-mail string 47 18 Exhibit 3 E-mail from Thomas 52 19 Scaramellino to Ted Kramer and 23 E-mail from Tim Gildea to 61 Thomas Scaramellino dated June 24 18, 2013 Exhibit 5 E-mail from Thomas April 21, 2014 Exhibit 13 20 Tim Gildea dated June 18, 2013 Exhibit 4 dated August 12, 2013 Exhibit 11 Exhibit 2 21 Scaramellino to Tim Gildea 16 19 20 E-mail from Pikinis to Ted 93 Kramer dated July 17, 2014 21 Exhibit 14 E-mail string 22 Exhibit 15 Campus Marketing Ambassador 100 23 Exhibit 16 Six4Three User and Revenue 100 24 64 71 11 15 40 E-mail from Tim Gildea to Thomas Scaramellino dated July 18 25 Exhibit 8 10 14 16 22 2013, with attachment 4 25 95 Model Exhibit 17 E-mail string 105 Page BG007673 www.aptusCR.com 1..4 YVer1f Confidential Timothy Gildea Six4Three, LLC vs. Facebook, Inc., et al. Page 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 average, you probably exchanged two to three e-mails with Mr. Kramer a week; is that right? A. I -- I really don't know, but that seems right. Q. How about with Mr. Scaramellino related to Six4Three and Pikinis? A. Similar. Maybe one or two e-mails a week. Q. Did you stay in fairly consistent contact with Mr. Scaramellino regarding Six4Three from December 12th through July 2014? A. We talked regularly, yeah. Q. And Mr. Scaramellino is based in Boston; is that right? A. He is now based in Boston, that's right. Q. Did you do anything to prepare for today's deposition? A. I met with my counsel. Q. That's Mr. Kruzer? A. Yes. Q. When did you meet with Mr. Kruzer? A. I met with him on the previous Friday, as well as yesterday afternoon. Q. About how long did you meet with Mr. Kruzer? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No, I don't think so. Q. Did you review any documents in preparation for this deposition? A. I reviewed the -- the documents that I had turned over so that I was familiar with them. Q. Anything else? A. No. Q. Are you being compensated for your time today? A. I'm not. Q. Okay. Going back to the Facebook Platform, when did you first hear about the Facebook Platform? A. I was aware of it for many years prior to my involvement with Six4Three. I really can't say when I first became aware of it. Q. Do you think you would have heard about it in 2007 when it first launched? A. It's very likely, yeah. Q. That was the year that you graduated from college? A. That's right. Q. Do you know what F8 is? A. Yes. Q. What is it? Page 114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I would say it was about an hour to an hour and a half. The first meeting was maybe a little -- yeah, about an hour. And our meeting yesterday was about an hour and a half. Q. Did you talk to anybody else about -have you talked to anybody else about this case? A. There were -- for our first meeting, there were other individuals present at the meeting. Q. Who was present? A. Mr. -- Mr. Kramer, Mr. Scaramellino, Mr. Godkin, I believe. And I think that was everyone. Q. And that was the meeting on Friday -A. That's right. Q. -- last Friday? Was that an in-person meeting? A. It was a telephone meeting. Q. Before last Friday had you talked to Mr. Kramer about this case? A. Yeah, we -- we've discussed the case. Q. And I don't want you to tell me anything that you discussed in the presence of attorneys, but did you ever have conversations about this case outside the presence of attorneys? A. I don't believe so. Q. What about with Mr. Scaramellino? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. It is the Facebook developer conference. Q. Have you ever attended F8? A. No, I haven't. Q. Have you ever watched any of the online videos of an F8 presentation? A. I don't believe so. I may have watched the -- the video of the -- I think it was the 2014 F8, the Graph API 2.0 changes. Didn't watch it live and I'm not sure at what time I might have watched it. So I can't say that I definitively did or didn't. Q. I guess what's your best guess in terms of whether or not you've seen it or not? MR. KRUZER: Objection. THE WITNESS: I would guess that I have -- have not watched it in its entirety. I did read materials related to the announcements. Q. BY MS. MILLER: When did you read those materials? A. I believe I read them in late May of that year. Q. And what materials were those? A. I recall a -- a blog post that was posted on the Facebook developer site, and I recall reading some API documentation. Q. Stepping back, when did you first hear Page 115 Page 116 Page 113..116 BG007674 www.aptusCR.com YVer1f Confidential Timothy Gildea Six4Three, LLC vs. Facebook, Inc., et al. Page 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about the Facebook Graph API? A. I'm not sure. Q. You're not sure? Do you recall when you were first aware that Facebook had opened up certain data endpoints, including the friends data endpoints? A. No, I don't know, you know, specifically when I became aware of that. I know it was prior to my involvement in Six4Three, but I don't have an exact date. Q. Do you know why you might have become aware of Graph API? A. It was a pretty common thing in the developer community, so it was something that just about everyone who was developing applications was aware of. Q. When you heard about Facebook Graph API, did you understand that it would be periodically updated? A. Yes. Q. And as with virtually all software, that update would involve a new version number? A. Yes. Q. When did you first use the Facebook Platform SDK? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I did. When I learned of the changes to the log-in process, I went to the developer website to familiarize myself with those changes. Q. And those log-in changes -A. That's right. Q. -- were part of the Graph API Version 2; correct? A. That's right, yeah. Q. And that -- that change was announced in -- on April 30, 2014? A. Yes. MR. KRUZER: Objection. THE WITNESS: That's my understanding. It was sometime after that that I actually familiarized myself with the change that had been announced. Q. BY MS. MILLER: Do you know how you became aware that changes had been announced? A. I don't remember. Q. Other than following this announcement, had you otherwise reviewed the Facebook developer's web page? A. I would look at the documentation regularly in the course of my work in software development. Page 118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I believe the first time I used that -well, it -- it may have been in, you know, December of 2012 with my work on -- with Six4Three. I can't remember specifically using it prior to that, but I -I can't rule it out. Q. And that was the IOS version of the SDK? A. I believe at that time I was working specifically with the -- the rest API, and my work with the IOS SDK began later. Q. And what is the rest SDK? A. I don't know that there's specifically an SDK, but there's an API -Q. I'm sorry -A. -- available that you can interact with via HEP. Q. When you were developing the Pikinis app, how did you stay informed regarding changes to the Facebook Platform? A. I received messages periodically about breaking changes to the API, none of which affected our application during the time I was developing it until, you know, after the application had been launched. Q. Other than receiving messages, did you do anything else, such as go to the developer's website? Page 119 Page 120 1 Q. How often? 2 A. It would depend on the nature of the work 3 I was doing. You know, during times that I was 4 working directly with the Facebook API I would refer 5 to it frequently. You know, maybe every day. But 6 once I had become aware and comfortable with the 7 functionality, I no longer needed to look at the site. 8 Q. Did you ever speak with other developers 9 about the Facebook Platform from -- let's cabin this 10 to December 2012 through July 2014. 11 A. I recall reading information from other 12 developers. I'm not sure that I had actual 13 conversations with -- with other developers. 14 Q. And since July of 2014 have you had any 15 conversations with other Facebook developers about the 16 Facebook Platform? 17 A. Not personally, no. 18 Q. And in the -- I think you said May 2014 19 time period when you went to the developer's website 20 to read about Graph API Version 2, what did you find 21 out about Graph API? 22 A. As I recall, the -- the announcement 23 focused on the changes to log in, which I knew would 24 require some updates to our application. I didn't see 25 anything that was very serious. It looked like it Page 117..120 BG007675 www.aptusCR.com YVer1f EXHIBIT 9 BG007676 Thomas Scaramellino Six4Three, LLC vs. Facebook, Inc., et al. Page 2 Page 1 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 1 COUNTY OF SAN MATEO 2 2 APPEARANCES On Behalf of the Plaintiff: 3 - - - - - - - - - - - - - - - - - - - - - - x 3 By: 4 SIX4THREE, 4 BIRNBAUM & GODKIN, LLP 5 280 Summer Street 5 6 Plaintiff, V. Case No. CIV 533328 7 FACEBOOK, INC, a Delaware 8 corporation, and Does 1 - 50, 9 inclusive, 10 11 David S. Godkin, Esquire 6 Boston, MA 02210 7 617-307-6100 8 dgodkin@birnbaumgodkin.com 9 Defendants. 10 - - - - - - - - - - - - - - - - - - - - - - x 12 VIDEOTAPED DEPOSITION OF 13 THOMAS SCARAMELLINO On Behalf of the Defendants: 11 By: Sonal N. Mehta, Esquire 12 DURIE TANGRI, LLP 13 217 Leidesdorff Street 14 San Francisco, CA 94111 15 415-362-6666 16 smehta@durietangri.com 14 15 April 21, 2017 16 9:10 a.m. 17 18 17 Conn Kavanaugh Rosenthal Peisch & Ford, LLP 19 18 Ten Post Office Square 20 Boston, Massachusetts Alex Daunais, Videographer 20 21 21 22 Reported By: 22 Rosemary F. Grogan, 23 24 RPR, CSR No. 112993 24 25 Job No. 10031574 25 23 Also present: 19 Page 3 1 2 INDEX OF EXAMINATION WITNESS: THOMAS SCARAMELLINO 3 EXAMINATION 4 By Ms. Mehta NUMBER PAGE NO. 3 Exhibit 64 6 4 INDEX TO EXHIBITS 7 NUMBER 8 Exhibit 55 9 10 14 15 17 70 10 Exhibit 58 12 96 E-mail String 6/18/13 122 Bates Six4Three 000000864 - 867 Exhibit 59 18 E-mail 6/18/13 and Attachment Bates Six4Three 000001090 - 110 15 Exhibit 71 155 19 20 Exhibit 61 BroBible Document 161 20 21 Exhibit 62 E-mail 7/17/14 165 21 24 25 Bates Six4Three 00000368 Exhibit 63 Pikinis Testers Feedback Six4Three 0000001598 - 617 22 171 186 Facebook Statement of Rights 187 Facebook Statement of Rights 187 E-mail String 7/18/14 206 E-mail 5/19/14 227 Facebook Platform Changelog 235 E-mail 7/28/14 239 Bates Six4Three 00000004 Exhibit 72 18 Website Terms of Use - Essess Facebook Platform Policies Bates Six4Three 00000641 Exhibit 70 Exhibit 60 23 Exhibit 69 14 17 180 Bates Six4Three 000000892 - 97 16 138 E-mail 7/19/13 and Responsibilities, etc. Exhibit 68 13 19 22 Exhibit 67 11 E-mail 4/18/13 PAGE NO. and Responsibilities, etc. 9 Certificate of Formation of Bates Six4Three 00000000549 16 Exhibit 66 8 Bates Six4Three 000015377 - 15424 Exhibit 57 6 10 Notice of Subpoenas and Limited Liability Company 12 Exhibit 65 7 DESCRIPTION Six4Three 00000635 5 PAGE NO. Attachments Exhibit 56 11 13 DESCRIPTION INDEX TO EXHIBITS 2 5 6 Page 4 1 E-mail String 10/16/14 241 Bates TS_000001 Exhibit 73 Plaintiff Six4Three LLC's Second 253 Supplemental Response to Defendant Facebook, Inc.'s Form Interrogatories Exhibit 74 Plaintiff Six4Three LLC's Response 23 to Defendant Facebook, Inc.'s 24 Specially Prepared Interrogatories 25 (Set Three) Page BG007677 www.aptusCR.com 264 1..4 YVer1f Thomas Scaramellino Six4Three, LLC vs. Facebook, Inc., et al. Page 197 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like it was right around the same time. And so sitting here today, it is not clear to me which of these two versions was operative at the time that we made our decision. Q. I see. But it would have been either Exhibit 66 or Exhibit 67? A. Correct. It's one of the two. Q. Okay. And the provisions that we talked about relating to the special provisions applicable -applicable to developers/operators of applications and Web sites, in paragraph No. 2, in terms of access and use of data, that exists in both versions, right? MR. GODKIN: Objection. A. Can you show me which -Q. Yes. A. -- which one you're talking about again? Q. Exhibit 66, page 3 of 7. A. All right. Q. And then Exhibit 67. That's on page 3 of 7 as well. A. You're asking about the special provisions section? Q. That's right. A. I believe these are identical. Q. And then if you can look at Exhibit -- the -- Page 198 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the point number 19 about we can create applications that offer similar features and services to, or otherwise compete with, your application, that is in both Exhibit 66 and 67, right? MR. GODKIN: Objection. A. Yes, if that's the question. Q. So whichever version of the SRRs you signed on to that paragraph 19 provision was included? MR. GODKIN: Objection. A. Yes. Q. And the limitation of liability clause that we discussed earlier, that limitation of liability paragraph also exists in both 66 and 67, correct? A. I know it exists. I can't tell you, sitting here today, if the language is identical. Q. But you understood when you signed on to the SRRs, that there was a limitation of liability as part of the contract that Six4Three was entering with Facebook? MR. GODKIN: Objection. BY MS. MEHTA: Q. Right? MR. GODKIN: Objection. (Witness reviewing) A. Yes. Page 199 1 Q. Was the ability to access Facebook's data Page 200 1 interactions with other companies, prior to the concept 2 important to Six4Three? 2 of Six4Three, regarding Facebook's representations 3 3 around the Facebook platform. A. The ability to access Facebook data was 4 critical to Six4Three. 4 5 Q. And you knew that going into the Six4Three 6 endeavor, right? 5 BY MS. MEHTA: 7 A. I'm not sure what you mean. 7 What specific steps did you take as the investor and 8 Q. I mean, it didn't come as a surprise to you at 8 adviser of Six4Three to ensure that Six4Three would have 6 MS. MEHTA: Move to strike. Nonresponsive. Q. That wasn't the question. The question was: 9 some point that you needed to have Facebook data. You 9 ongoing perpetual access to Facebook data? 10 knew that all along, right? 10 11 11 Platform Graph API and its data. And for the entire MR. GODKIN: Objection. A. Like I said, I was very familiar with Facebook 12 A. Ted decided to build an application based upon 13 Facebook's promise and representations around data. 12 time that I had become familiar with this massive new 14 Once that decision was made, that application could not 15 function without access to that data. So based upon 14 this data is available, it's reliable, it continues to 16 that line of reasoning, yes, it was critical to 17 Six4Three that it have access to that data. 18 Q. What specific steps did you as the investor 16 accessing this data. 13 software application economy, the feedback had been that 15 be open, Facebook continues to support developers around 17 And through all of my various 18 conversations, even prior to Six4Three, that generated a 19 and adviser to Six4Three take to ensure that you would 19 significant comfort level among me and countless other 20 have ongoing access to Facebook data for theSix4Three 20 investors and startups. Based on that, I then took a 21 enterprise? 22 MR. GODKIN: Objection. 21 number of specific steps. First and foremost, we 23 A. Well, I was aware of Facebook platform and 24 Graph API prior to and independent of Ted's decision to 23 discussions with a wide range of other companies, became 25 found Six4Three. And so I have had a number of 25 on top of Facebook platform, largely by reviewing 22 reviewed this agreement. Second, we, through our 24 comfortable with the implications of building businesses Page 197..200 BG007678 www.aptusCR.com Thomas Scaramellino Six4Three, LLC vs. Facebook, Inc., et al. Page 201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Facebook's own representations regarding that platform. Q. Other than reviewing the agreement, which I think you're referring to the SRRs, and talking to a wide range of companies, can you identify any other specific steps that you took? MR. GODKIN: Objection. A. Give me the other thans again. Other than what? Q. Reviewing the agreement and talking to what you described as a wide range of other companies. A. Reviewing the representations of Facebook; information on Facebook's Web site; representations of Facebook's executive in public settings. Q. Anything else? A. I can't think of anything at the moment. Q. You never reached out to Facebook to ask them or confirm that you would have perpetual access to Facebook data, did you? MR. GODKIN: Objection. A. There was no e-mail address for Facebook to ask such a question. Q. So you didn't know how to get in touch with them? That's your -- that's your position? MR. GODKIN: Objection. A. Didn't know how to get in touch with them? Page 202 1 Q. Is that what you're saying? 2 A. No. 3 Q. Let me ask the question again -- 4 A. I m say ng -- 5 Q. -- did you ever reach out to Facebook to 6 confirm that Six4Three would have perpetual access to 7 Facebook's proprietary data? 8 9 MR. GODKIN: Object on. A. Facebook aunched th s p atform n 2007. Over 10 10 m on app cat ons have been bu t on th s 11 p atform. The dea of hav ng to reach out spec f ca y 12 to conf rm w th Facebook that such data wou d be 13 access b e for a market va ued at over $220 b on does 14 not seem ke t wou d be requ red at that po nt. 15 Q. So the answer is that you never reached out to 16 Facebook to confirm that you would have perpetual access 17 to Facebook's proprietary data, right? 18 MR. GODKIN: Object on. 19 A. Dur ng what t me? 20 Q. During any time prior to April of 2015. 21 A. State the quest on aga n. 22 Q. I'll ask the question differently. Prior to 23 April of 2015, you never reached out to Facebook to 24 confirm that Six4Three would have perpetual access to 25 Facebook's proprietary data -- Page 203 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GODKIN: Object on. 1 BY MS. MEHTA: 2 Q. -- is that right? 3 A. That s ncorrect. 4 Q. You reached out to Facebook before April of 5 2015 to confirm that you would have access to the data? 6 MR. GODKIN: Object on. 7 A. F rst, I d spute your use of the term 8 "perpetua ." If you can phrase your quest on w thout 9 that term, I can answer t. 10 Q. Okay. Let me ask the question this way: 11 You -- did you ever reach out to Facebook before April 12 of 2015 to confirm that Six4Three would have ongoing 13 access to Facebook's proprietary data? 14 A. I d spute your use of the term "ongo ng," but 15 the answer s yes, I d d. 16 Q. Okay. When did you do that? 17 A. I contacted a Facebook p atform emp oyee named 18 M chae Huang somet me n 2014, ate 2014, I be eve. 19 Q. Okay. So -- and we'll talk about that 20 interaction in a minute. Let me ask the question 21 differently. 22 Prior to October of 2014, did you ever 23 contact anyone at Facebook to confirm that Six4Three 24 would have ongoing access to Facebook's proprietary data 25 Page 204 for a period of 2, 5 or 10 years? MR. GODKIN: Objection. A. I don't know. Q. You can't identify any instance in which you asked that question of Facebook, right? MR. GODKIN: Objection. A. Is October of 2015 when I contacted Michael Huang? Q. Yes. A. Okay. Can you show me something that demonstrates that? Q. We'll get to that. What I want to know is -A. Well, you're asking me to answer a question that I don't know the answer to. Q. I'm going to represent to you that your e-mail to Michael Huang was dated October 16th, 2014. So my question is: Prior to October of 2014, can you identify any instance in which you or anyone associated with Six4Three reached out to Facebook to confirm that you would have ongoing access to Facebook's proprietary data? MR. GODKIN: Objection. A. What do you mean by "ongoing access"? Q. That you wouldn't -- that they wouldn't turn off your access to Facebook's proprietary data at some Page 201..204 BG007679 www.aptusCR.com Thomas Scaramellino Six4Three, LLC vs. Facebook, Inc., et al. Page 205 Page 206 1 point in time in the future. 25 1 MR. GODKIN: Objection. 2 A. Still don't know how to address the use of the 3 term "ongoing access." You're making it sound like even 4 if I were to contact a Facebook employee, I wouldn't 5 have ever contacted them stating terms like perpetual 6 access or ongoing access. It's an issue that you're 7 attempting to create here that was never considered. 8 Q. No, I'm not. You said that having access to 9 Facebook data was critical to Six4Three, right? 10 A. Correct, and then you added the term 11 perpetual. 12 Q. Okay. Let's -- let's break it down by time, 13 then. Let's take a window of five years, okay? 14 Prior to October of 2014, did you or 15 anyone on behalf of Six4Three ever reach out to Facebook 16 to confirm that Six4Three would have access to 17 Facebook's proprietary data for five years? 18 MR. GODKIN: Objection. 19 A. For five years, no. 20 Q. For 10 years? 21 A. No. 22 MR. GODKIN: Objection. 23 BY MS. MEHTA: 24 Q. For 15 years? 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Witness reviewing) A. Yes, I recognize this and am familiar with it now. Q. Okay. And earlier in your testimony, you referenced a point at which Facebook actually limited the number of API calls that you could make to its servers. Do you recall that? A. Yes. Facebook limited our access to data on July -- July 17th, it appears. Q. Okay. And if you look at this document, what it says is -- I'm looking at page 894. There's an e-mail dated July 17, 2014, at 12:35 p.m. Do you see that? A. Yes. Q. Okay. And that's from Mr. Gildea, right? A. Yes. Q. And it says, "We got API rate limited." Do you see that? A. Yes. Q. And then it quotes from a Facebook document that talks about app level rate limiting. Do you see that? A. Yes. Q. And you're familiar with -- as of July of 2014, you were familiar with the fact that Facebook had 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. No. MR. GODKIN: Objection. BY MS. MEHTA: Q. For 20 years? MR. GODKIN: Give me a chance to object. Objection. BY MS. MEHTA: Q. For 20 years? A. No. Q. Prior to October of 2014, did you or anyone else on behalf of Six4Three reach out to Facebook to confirm that you would have access to Facebook's proprietary data for any period of time? MR. GODKIN: Objection. A. You're asking if I e-mailed a Facebook employee, correct? Q. Or otherwise asked Facebook. A. No. Q. I'm going to hand you Exhibit No. 68. (Exhibit 68 marked for identification) BY MS. MEHTA: Q. For the record, this is a Six4Three 892 through 897. Do you recognize this document? A. Give me one second. Page 207 Page 208 1 2 3 4 5 6 policies in place to limit the API rate for app developers, right? A. Yes, we were familiar with that as a result of our review of Section 2, provision 9, we can limit your access to data. Q. I understand. I understand that's your 7 8 9 10 11 12 13 position, but you also -A. I'm just answering the question. 16 17 18 19 20 21 22 23 24 25 pointing to the SRRs, right? A. Yes. Q. Now, you understand that Facebook actually has a separate policy with respect to app level rate limiting, right? Q. Well, I don't think you are. Let me -- let me be clear. My question is: Did you understand that Facebook could limit the API rate, have a rate limit on API calls? A. Yes, I understood that from the time that I 14 reviewed this agreement. (Indicating) 15 Q. Okay. And you understood -- and you're A. Correct. Facebook flushes out that policy on its app level rate -Q. So -A. -- limiting page. Q. -- so your position is that when Facebook has Page 205..208 BG007680 www.aptusCR.com Thomas Scaramellino Six4Three, LLC vs. Facebook, Inc., et al. Page 249 Page 250 1 Six4Three would be able to use version 1.0 forever? 2 A. Zuckerberg stated explicitly that Six -- that 1 on it. 3 Six -- that companies like Six4Three would be able to 4 continue to use version 1.0 and that they would be able 3 long -- I mean you -- 5 to choose which version of the API they want to use. He 2 Q. But did you do anything to figure out how 4 A. Again, you're asking me to solve a problem we 5 don't know exists. 6 never said forever. There's really no such thing as 6 Q. Let me ask the question this way: Did you 7 believe at the time that he said that Graph API forever. But he certainly stated that that would be provided on an equal and fair basis. 8 version 1.0 would remain accessible, that it would Q. But did you -- did you believe at that point 9 remain accessible for 50 years? A. I don't think Zuckerberg's in a position to he was saying that you would be able to use version 1.0 10 for five years or 10 years? 11 guarantee that Facebook would exist for 50 years. 12 12 Q. What about 10 years? Did you think he was A. We believed that as long as version 1.0 was 7 8 9 10 11 13 accessible, as long as Graph API was accessible, the 14 friends endpoints were accessible, that they would be 13 guaranteeing version 1.0 for 10 years? 15 made accessible on an equal, neutral and fair basis to 16 all companies that participated in the market. 17 Q. And at the time, did you do anything to 18 evaluate how long version 1.0 would be accessible? 19 A. State the question again. Did we do 20 anything -21 Q. Did you do anything to investigate or 22 determine how long version 1.0 would be accessible 23 following the April 30th, 2014 announcement? 24 A. Well, Zuckerberg explicitly stated that it 15 germane or relevant. As long as it is accessible, it 16 will be accessible to everyone on equal terms. At any 25 would be remain accessible. He never put a time frame 25 Graph version 1.0 available to developers for as long as 14 A. This emphasis on in perpetuity is -- is not 17 point in time, it could be made unaccessible. Facebook 18 could go out of business, for instance, but that means 19 it would be unaccessible for everyone, including for 20 Facebook to develop its own competitive applications. 21 Q. So your view was that Graph API 1.0 -- I'm 22 sorry. Strike that. 23 Your interpretation at the time of Mark 24 Zuckerberg's F8 speech was that Facebook would make Page 251 Page 252 1 Facebook itself had access to friends photos? 2 MR. GODKIN: Objection. 1 the people that I've known for quite some time. 3 BY MS. MEHTA: 4 Q. That was your interpretation? 5 MR. GODKIN: Objection. 6 A. That is what Zuckerberg and a host of other 7 Facebook executives and employees had represented since 8 2007. 9 Q. And when you say "represented," you mean in F8 3 made by Facebook between 2007 and 2014 that you were 10 speeches? 11 A. Well, our review -- I didn't watch specific 12 speeches, but I read transcripts. I went to the 13 Web site. We reviewed representations. I read 14 articles. I was involved in the software development 10 investment was a wise decision and would generate a 15 16 17 18 19 20 21 22 23 24 25 community. I was aware of many representations from 2007 all the way through to 2014 and '15. 15 you relied on? And most of these representations formed a part of my general working knowledge in the software business that had nothing to do with Six4Three. And so at the time that Six4Three decided to even participate in this market, I was already generally familiar with not only, you know, these representations that had been made for a very long period of time, but with many companies who had participated in this ecosystem with great success, including many of my friends and many of 17 mind is the Facebook platform announcement; the Facebook 2 Q. Can you identify any specific representation 4 aware of and claim to be relying on as of April of 5 2015 -- sorry. April of 2014? 6 A. Well, so I wasn't -- Six4Three was relying on 7 these representations. I wasn't relying on these 8 representations. In terms of my decision to make an 9 investment in Six4Three and my belief that that 11 return and was being made on the premise of Facebook 12 being a stable platform, yes, I could certainly identify 13 those. 14 16 Q. What specific representations are you saying A. I mean, the most obvious one that comes to 18 platform FAQ -19 20 MR. GODKIN: Slow down. A. -- the various developer blog posts associated 21 with the 2007 announcement; the 2010 announcement; the 22 various news articles regarding Zuckerberg and Taylor's 23 speeches at the 2010 announcement by range of 24 representations over an extended period of time. 25 Q. Do you have any documentary evidence that Page 249..252 BG007681 www.aptusCR.com Thomas Scaramellino Six4Three, LLC vs. Facebook, Inc., et al. Page 269 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there's a reference here to -- on line 16 -MR. GODKIN: Which page? MS. MEHTA: Page 7. BY MS. MEHTA: Q. Line 16 says, "$4,081,950 in enterprise value at the time Facebook decided to end access to Graph API." Do you see that? A. Yes. Q. So what date is that referring to? A. So the valuation of Six4Three was established based on my discussions with Ted. And so the 4,000 -the 4,081,950 is simply the number of outstanding units multiplied by the price per unit. #2 received a portion of its units based on that capital investment, and then it received a portion of those units based upon the fact that it was, basically, responsible for the ability of Six4Three to exist. So it's roughly representing a $3.75 million premoney valuation, which for a seed company is very low. If you look at the average seed valuation today, it's roughly $6 million. So this represents a -- what? You know, 33 percent discount relative to the average seed valuation for financing of today. Page 270 1 Q. And when you say average seed valuation 2 finances done today, what specific technology sectors or 3 industries are you referring to? 4 A. It refers to venture backed software startups. 5 Q. Can you be any more specific than that? 6 A. I believe the data I'm referring to comes from 7 one of those organizations like PitchBook. I don't 8 recall specifically. But I just attended a CEO summit 9 with one of my VCs, and we spent lots of time talking 10 about this data. 11 And one of the numbers that was noted is 12 that $6 million, according to -- whether it's PitchBook 13 or one of these other platforms for these seed data -14 15 MR. GODKIN: Slow down. A. -- $6 million was the -- the average premoney 16 valuation for a seed round. 17 Q. What do you think the -- strike that. 18 Do you know what the average premoney 19 valuation for a seed round for an app in 2012 or 2013 20 was? 21 A. No, but that's something that somebody could 22 find out. 23 Q. And do you know what the average premoney 24 valuation for a seed round for image recognition app was 25 in 2012 or 2013? Page 271 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. If I don't know the answer to the first, I 1 can't know the answer to the second. 2 Q. Do you know what the average premoney 3 valuation for a seed round of an image recognition app 4 is at any point in time since 2012 to the present? 5 A. Off the top of my head, sitting here right 6 now, I cannot give you a specific number, although, as 7 someone who's been investing in this business, I have 8 done research on this and there are comps out there. 9 Q. For image recognition software startups? 10 A. There's data around recognition software and 11 other startups. I don't know if there has been a 12 venture, you know, backed report specifically around 13 image recognition. 14 Q. Can you identify any evidence of what a 15 premoney seed valuation for an image recognition startup 16 would have been at any point in time from 2012 to 2015? 17 A. Yes. They're roughly equivalent to most other 18 software businesses; SAS businesses, consumer 19 businesses. Roughly speaking, if you're developing a 20 subscription product, right, a turnkey subscription 21 software service, and you're seeking money from the 22 venture capital community, and you're seeking your first 23 nonfriends and family financing, your first seed 24 financing, then, roughly speaking, your valuation is 25 Page 272 going to be somewhere in the 3 to $10 million premoney range. Q. And can you think of an example of a subscription-based service that has a valuation of 3 to $10 million? MR. GODKIN: Objection. BY MS. MEHTA: Q. Anything that comes to mind? A. Sorry. You're asking me to identify a company that has raised money at a 3 to $10 million valuation? Q. On a subscription-based model. A. I mean, just look at any VC Web sites. Q. How -A. Most -- most all of those companies, if they haven't raised a Series A, the money they raised was in a valuation within that range. Q. Are you -- are you aware of food delivery subscription services like BlueApron? A. I know of BlueApron. Sure. Q. Okay. And would you consider the premoney seed valuation for a food delivery, dinner delivery service, like BlueApron, to be the same as an image recognition subscription-based model? A. Valuations in the on-demand delivery space, from my standpoint, should be much lower than the image Page 269..272 BG007682 www.aptusCR.com YVer1f EXHIBIT 10 BG007683 facebook What is f8? f8 was an event held at the San Francisco Design Center on May 24, 2007, during which Mark Zuckerberg unveiled the next evolution of Facebook Platform. The event included an eight-hour ?hackathon.? where both Facebook engineers and outside developers collaborated on building new applications on the new Facebook Platform. What is a ?hackathon?? A hackathon is an all-night coding event during which Facebook engineers work on any project that interests them. Facebook uses the word "hackathon" to refer to a gathering of engineers. who possess technical expertise and collaborate on innovative projects. Facebook has a tradition of holding frequent developer hackathons. which have spawned some of the most popular features and applications on the site. What is Facebook Platform? Facebook Platform is a development system that enables companies and developers to build applications for the Facebook website, where all of Facebook's 24 million active users can interact with them. Facebook Platform offers deep integration into the Facebook website. distribution through the social graph and an opportunity to build a business. What is the social graph? The social graph is at the core of Facebook. it is the network of connections and relationships between people on Facebook and enables the ef?cient spreading and ?ltering of information. Just as people share information with their friends and the people around them in the real world. these connections are reflected online in the Facebook social graph. What is a Facebook application? A Facebook application uses Facebook Platform to access information from the social graph. offering users an experience that's relevant to them. Facebook applications can plug into the Facebook website in a number of ways: applications can be embedded on users' pro?le pages, reside on their own separate pages (called ?canvas" pages). or live through desktop applications using data from the Facebook social graph. What?s new in Facebook Platform? We?ve been adding functionality since Facebook Platform first shipped in beta in August 2006. With the latest evolution of Facebook Platform however, third-party developers can now create applications on the Facebook site with the same level of integration as applications built by internal Facebook developers. Now developers everywhere have the ability to create Facebook applications that deeply integrate into the Facebook site, as well as the potential for mass distribution through the social graph and new business opportunities. Why did Facebook launch Facebook Platform? Our engineers have created great applications for Facebook. but we recognized that third-party developers can help us make Facebook an even more powerful social utility. Facebook Platform gives developers everywhere the tools to create applications that we just wouldn't have the resources to build in-house, and those applications make Facebook an even better way for our users to exchange information. Developers also benefit from Facebook Platform as it gives them the potential to broadly distribute their applications and even build new business opportunities. What kinds of applications can be built on Facebook Platform? The kinds of applications developers can build on Facebook Platform are limited only by their imaginations. Because applications are based on the Facebook social graph they can be more relevant to users. keeping people in touch with what and whom they care about. We've already seen a variety of applications built by our developer partners. including those for sharing media ?les, book reviews. slideshows and more. Some of the 156 University Avenue . Palo Alto, CA 94301 . T: 650-543-4800 - F: 650-543-4801 BG007684 facebook possibilities of Facebook applications are Illustrated in the Facebook Platform Application Directory, available at Are there any restrictions on what developers can build? Developers are encouraged to exercise their creativity when building applications. Of course. all applications a'e subject to the Terms of Service that every developer agrees to. which include basic requirements such as not storing any sensitive user information, not creating any offensive or illegal applications, and not building anything that phishes or spams users. And users will always have the power to report any applications that compromise Facebook's trusted environment, keeping our users' information safe. What are the benefits of Facebook Platform for users? With Facebook Platform. users gain the ability to define their experience on Facebook by choosing applications that are useful and relevant to them. Now that they have access to a virtually limitless set of applications from outside developers, users have an unprecedented amount of choice. They can share information and communicate with their trusted connections in ways that would never have been possible before Facebook opened its platform. How do users add applications to and remove applications from their account? If a user sees an application she likes on a friend's profile. she can add it to her account by clicking the "Add" link on the application's pro?le box. She can also add new applications by navigating to the application's specific page in the Facebook Platform Application Directory and clicking ?Add Application" in the top?right comer. To remove an application, she ?rst clicks ?Applications" on the left navigation bar. From there. she can ?Remove" any of the applications in her account, whether they are built by a developer partner or by Facebook. What are the privacy controls for Facebook Platform, and what kind of user Information can be shared? On Facebook, users are always in control of their information and can choose how much of their information Is made available to specific applications. With Facebook Platform. we're offering additional privacy controls and requiring that third parties treat user information with the same respect we do?and our users have come to expect. Users can also choose to completely opt out of making their data available through Facebook Platform. Applications can never violate users' basic privacy settings and are meant to provide users with a better opportunity to share their information with their friends and networks. What do third-party applications do with user information? Applications built by third parties are required to respect Facebook users' privacy preferences. Third-party applications allow users and their friends to share information in new ways. without affecting the security and privacy that they've always enjoyed on Facebook. How many applications are there for Facebook Platform? At f8, we are launching with over 85 applications from more than 65 developer partners, and that's only the beginning. We're encouraging interested developers everywhere to create Facebook applications. We have no limits on the number of applications that can be created. What differentiates Facebook applications from widgets on other sites? Facebook applications are deeply integrated into the site and take advantage of the network of real connections through which users share information and communicate?what we call the ?social graph." Widgets are typically single-purpose Flash add-ons to a web page displaying a single video) that are not fully integrated into a site nor are aware of the social context among users. How will Facebook maintain its minimalist style if users can add and move applications around on their profile? We're giving our users the choice to add applications and control their placement in their profiles, but we're not changing the essential layout and familiar style of the Facebook site. Facebook applications are focused on providing new ways to spread information on Facebook. not about redesigning the way a pro?le looks. For example. users will not be able to change the site background, add music that plays when their pro?les load, or 156 University Avenue . Palo Alto, CA 94301 - T: 650-543-4800 0 F: 650-543-4801 BG007685 facebook insert animation into their pro?les. Individual applications may play media. music or animations but only when a visitor to that pro?le interacts with them. How will Facebook deal with applications that compete with one another or even compete with Facebook- built applications? We welcome developers with competing applications, including developers whose applications might compete with Facebook-built applications. Many applications are likely to offer similar features. We've designed Facebook Platform so that applications from third-party developers are on a level playing field with applications built by Facebook. Ultimately. our users will decide which applications they find most useful. and it is these applications that will become the most popular. How will Facebook monetize Facebook Platform? All the great applications built by our developer partners provide a service to our users and strengthen the social graph. The result is even more engaged Facebook users creating more advertising opportunities. Can Facebook applications include ads? We want to enable developers to build a business on their Facebook applications, so we're giving developers the freedom to monetize their applications as they like. Developers can include advertising on their applications' canvas pages. though no advertising will be allowed within the application boxes that appear within user pro?les. Are you going to share revenue with developers? While revenue sharing is not available at launch, we are looking into ways to share advertising revenue with developers. This version of Facebook Platform already lets developers monetize their applications as they like, whether they choose to offer it for free or build a business on their application. What are the key technical elements of Facebook Platform? Facebook Platform offers several technologies that help developers use data from the social graph. In addition to the Facebook API. this recently launched version of Facebook Platform introduces Facebook Markup Language (FBML). which enables developers to build applications that deeply integrate into the Facebook site. Facebook Platform also includes Facebook Query Language (FQL), which lets developers use a SOL-style interface to query the data they can access through the API. For more details on the technology behind Facebook Platform. check out the Facebook Developer site at 156 University Avenue 0 Palo Alto, CA 94301 0 T: 650- 543-4800 0 F: 650-543-4801 BGOO7686 EXHIBIT 11 REDACTED FOR PUBLIC FILING BG007687 EXHIBIT 12 REDACTED FOR PUBLIC FILING BG007688 EXHIBIT 13 REDACTED FOR PUBLIC FILING BG007689 EXHIBIT 14 REDACTED FOR PUBLIC FILING BG007690 EXHIBIT 15 REDACTED FOR PUBLIC FILING BG007691 EXHIBIT 16 REDACTED FOR PUBLIC FILING BG007692 EXHIBIT 17 REDACTED FOR PUBLIC FILING BG007693 EXHIBIT 18 REDACTED FOR PUBLIC FILING BG007694 EXHIBIT 19 REDACTED FOR PUBLIC FILING BG007695 EXHIBIT 20 REDACTED FOR PUBLIC FILING BG007696 EXHIBIT 21 REDACTED FOR PUBLIC FILING BG007697 EXHIBIT 22 REDACTED FOR PUBLIC FILING BG007698 EXHIBIT 23 REDACTED FOR PUBLIC FILING BG007699 EXHIBIT 24 REDACTED FOR PUBLIC FILING BG007700 EXHIBIT 25 REDACTED FOR PUBLIC FILING BG007701 EXHIBIT 26 REDACTED FOR PUBLIC FILING BG007702 EXHIBIT 27 REDACTED FOR PUBLIC FILING BG007703 EXHIBIT 28 REDACTED FOR PUBLIC FILING BG007704 EXHIBIT 29 REDACTED FOR PUBLIC FILING BG007705 EXHIBIT 3O REDACTED FOR PUBLIC FILING BG007706 EXHIBIT 31 REDACTED FOR PUBLIC FILING BG007707 EXHIBIT 32 REDACTED FOR PUBLIC FILING BG007708 EXHIBIT 33 REDACTED FOR PUBLIC FILING BG007709 EXHIBIT 34 REDACTED FOR PUBLIC FILING BG007710 EXHIBIT 35 REDACTED FOR PUBLIC FILING BG00771 1 EXHIBIT 36 REDACTED FOR PUBLIC FILING BG007712 EXHIBIT 37 REDACTED FOR PUBLIC FILING BG007713 EXHIBIT 3 8 REDACTED FOR PUBLIC FILING BG007714 EXHIBIT 39 REDACTED FOR PUBLIC FILING BG007715 EXHIBIT 4O REDACTED FOR PUBLIC FILING BG007716 EXHIBIT 41 REDACTED FOR PUBLIC FILING BG007717 EXHIBIT 42 REDACTED FOR PUBLIC FILING BG007718 EXHIBIT 43 REDACTED FOR PUBLIC FILING BG007719 EXHIBIT 44 REDACTED FOR PUBLIC FILING BG 007720 EXHIBIT 45 REDACTED FOR PUBLIC FILING BG007721 EXHIBIT 46 REDACTED FOR PUBLIC FILING BG 007722 EXHIBIT 47 REDACTED FOR PUBLIC FILING BG 007723 EXHIBIT 48 REDACTED FOR PUBLIC FILING BG 007724 EXHIBIT 49 REDACTED FOR PUBLIC FILING BG 007725 EXHIBIT 50 REDACTED FOR PUBLIC FILING BG 007726 EXHIBIT 51 REDACTED FOR PUBLIC FILING BG 007727 EXHIBIT 52 REDACTED FOR PUBLIC FILING BG 007728 EXHIBIT 5 3 REDACTED FOR PUBLIC FILING BG 007729 EXHIBIT 54 REDACTED FOR PUBLIC FILING BG007730 EXHIBIT 55 REDACTED FOR PUBLIC FILING BG007731 EXHIBIT 5 6 REDACTED FOR PUBLIC FILING BG 007732 EXHIBIT 5 7 REDACTED FOR PUBLIC FILING BG 007733 EXHIBIT 58 REDACTED FOR PUBLIC FILING BG 007734 EXHIBIT 5 9 REDACTED FOR PUBLIC FILING BG007735 EXHIBIT 6O REDACTED FOR PUBLIC FILING BG007736 EXHIBIT 61 REDACTED FOR PUBLIC FILING BG007737 EXHIBIT 62 REDACTED FOR PUBLIC FILING BG007738 EXHIBIT 63 REDACTED FOR PUBLIC FILING BG007739 EXHIBIT 64 REDACTED FOR PUBLIC FILING BG 007740 EXHIBIT 65 REDACTED FOR PUBLIC FILING BG007741 EXHIBIT 66 REDACTED FOR PUBLIC FILING BG 007742 EXHIBIT 67 REDACTED FOR PUBLIC FILING BG 007743 EXHIBIT 68 REDACTED FOR PUBLIC FILING BG 007744 EXHIBIT 69 REDACTED FOR PUBLIC FILING BG 007745 EXHIBIT 7 REDACTED FOR PUBLIC FILING BG 007746 EXHIBIT 71 REDACTED FOR PUBLIC FILING BG 007747 EXHIBIT 72 REDACTED FOR PUBLIC FILING BG 007748 EXHIBIT 73 REDACTED FOR PUBLIC FILING BG 007749 EXHIBIT 74 REDACTED FOR PUBLIC FILING BG007750 EXHIBIT 75 REDACTED FOR PUBLIC FILING BG007751 EXHIBIT 76 REDACTED FOR PUBLIC FILING BG007752 EXHIBIT 77 REDACTED FOR PUBLIC FILING BG007753 EXHIBIT 78 REDACTED FOR PUBLIC FILING BG007754 EXHIBIT 79 REDACTED FOR PUBLIC FILING BG007755 EXHIBIT 80 REDACTED FOR PUBLIC FILING BG007756 EXHIBIT 81 REDACTED FOR PUBLIC FILING BG007757 EXHIBIT 82 REDACTED FOR PUBLIC FILING BG007758 EXHIBIT 83 REDACTED FOR PUBLIC FILING BG007759 EXHIBIT 84 REDAC TED FOR PUBLIC FILING BG007760 EXHIBIT 85 REDACTED FOR PUBLIC FILING BG007761 EXHIBIT 86 REDACTED FOR PUBLIC FILING BG007762 EXHIBIT 87 REDACTED FOR PUBLIC FILING BG007763 EXHIBIT 88 REDACTED FOR PUBLIC FILING BG007764 EXHIBIT 89 REDACTED FOR PUBLIC FILING BG007765 EXHIBIT 9O REDACTED FOR PUBLIC FILING BG007766 EXHIBIT 91 REDACTED FOR PUBLIC FILING BG007767 EXHIBIT 92 REDACTED FOR PUBLIC FILING BG007768 EXHIBIT 93 REDACTED FOR PUBLIC FILING BG007769 EXHIBIT 94 REDACTED FOR PUBLIC FILING BG007770 EXHIBIT 95 REDACTED FOR PUBLIC FILING BG007771 EXHIBIT 96 REDACTED FOR PUBLIC FILING BG007772 EXHIBIT 97 REDACTED FOR PUBLIC FILING BG007773 EXHIBIT 98 REDACTED FOR PUBLIC FILING BG007774 EXHIBIT 99 REDACTED FOR PUBLIC FILING BG007775 EXHIBIT 100 REDACTED FOR PUBLIC FILING BG007776 EXHIBIT 101 REDACTED FOR PUBLIC FILING BG007777 EXHIBIT 102 REDACTED FOR PUBLIC FILING BG007778 EXHIBIT 103 REDACTED FOR PUBLIC FILING BG007779 EXHIBIT 104 REDACTED FOR PUBLIC FILING BG007780 EXHIBIT 105 REDACTED FOR PUBLIC FILING BG007781 EXHIBIT 106 REDACTED FOR PUBLIC FILING BG007782 EXHIBIT 107 REDACTED FOR PUBLIC FILING BG007783 EXHIBIT 108 REDACTED FOR PUBLIC FILING BG007784 EXHIBIT 109 REDACTED FOR PUBLIC FILING BG007785 EXHIBIT 1 10 REDACTED FOR PUBLIC FILING BG007786 EXHIBIT 1 11 REDACTED FOR PUBLIC FILING BG007787 EXHIBIT 1 12 REDACTED FOR PUBLIC FILING BG007788 EXHIBIT 1 13 REDACTED FOR PUBLIC FILING BG007789 EXHIBIT 1 14 REDACTED FOR PUBLIC FILING BG007790 EXHIBIT 1 15 REDACTED FOR PUBLIC FILING BG007791 EXHIBIT 1 16 REDACTED FOR PUBLIC FILING BG007792 EXHIBIT 1 17 REDACTED FOR PUBLIC FILING BG007793 EXHIBIT 1 18 REDACTED FOR PUBLIC FILING BG007794 EXHIBIT 1 19 REDACTED FOR PUBLIC FILING BG007795 EXHIBIT 120 REDACTED FOR PUBLIC FILING BG007796 EXHIBIT 121 REDACTED FOR PUBLIC FILING BG007797 EXHIBIT 122 REDACTED FOR PUBLIC FILING BG007798 EXHIBIT 123 REDACTED FOR PUBLIC FILING BG007799 EXHIBIT 124 REDACTED FOR PUBLIC FILING BG007800 EXHIBIT 125 REDACTED FOR PUBLIC FILING BG007801 EXHIBIT 126 REDACTED FOR PUBLIC FILING BG007802 EXHIBIT 127 REDACTED FOR PUBLIC FILING BG007803 EXHIBIT 128 REDACTED FOR PUBLIC FILING BG007804 EXHIBIT 129 REDACTED FOR PUBLIC FILING BG007805 EXHIBIT 130 REDACTED FOR PUBLIC FILING BG007806 EXHIBIT 131 REDACTED FOR PUBLIC FILING BG007807 EXHIBIT 132 REDACTED FOR PUBLIC FILING BG007808 EXHIBIT 133 REDACTED FOR PUBLIC FILING BG007809 EXHIBIT 134 REDACTED FOR PUBLIC FILING BG007810 EXHIBIT 135 REDACTED FOR PUBLIC FILING BG00781 1 EXHIBIT 136 REDACTED FOR PUBLIC FILING BG007812 EXHIBIT 137 REDACTED FOR PUBLIC FILING BG007813 EXHIBIT 138 REDACTED FOR PUBLIC FILING BG007814 EXHIBIT 139 REDACTED FOR PUBLIC FILING BG007815 EXHIBIT 140 REDACTED FOR PUBLIC FILING BG007816 EXHIBIT 141 REDACTED FOR PUBLIC FILING BG007817 EXHIBIT 142 REDACTED FOR PUBLIC FILING BG007818 EXHIBIT 143 REDACTED FOR PUBLIC FILING BG007819 EXHIBIT 144 REDACTED FOR PUBLIC FILING BG 007820 EXHIBIT 145 REDACTED FOR PUBLIC FILING BG007821 EXHIBIT 146 REDACTED FOR PUBLIC FILING BG 007822 EXHIBIT 147 REDACTED FOR PUBLIC FILING BG 007823 EXHIBIT 148 REDACTED FOR PUBLIC FILING BG 007824 EXHIBIT 149 REDACTED FOR PUBLIC FILING BG 007825 EXHIBIT 150 REDACTED FOR PUBLIC FILING BG 007826 EXHIBIT 151 REDACTED FOR PUBLIC FILING BG 007827 EXHIBIT 152 REDACTED FOR PUBLIC FILING BG 007828 EXHIBIT 153 REDACTED FOR PUBLIC FILING BG 007829 EXHIBIT 154 REDACTED FOR PUBLIC FILING BG007830 EXHIBIT 155 REDACTED FOR PUBLIC FILING BG007831 EXHIBIT 156 REDACTED FOR PUBLIC FILING BG 007832 EXHIBIT 157 REDACTED FOR PUBLIC FILING BG 007833 EXHIBIT 158 REDACTED FOR PUBLIC FILING BG 007834 EXHIBIT 159 REDACTED FOR PUBLIC FILING BG007835 EXHIBIT 160 REDACTED FOR PUBLIC FILING BG007836 EXHIBIT 161 REDACTED FOR PUBLIC FILING BG007837 EXHIBIT 162 REDACTED FOR PUBLIC FILING BG007838 EXHIBIT 163 REDACTED FOR PUBLIC FILING BG007839 EXHIBIT 164 REDACTED FOR PUBLIC FILING BG 007840 EXHIBIT 165 REDACTED FOR PUBLIC FILING BG007841 EXHIBIT 166 REDACTED FOR PUBLIC FILING BG 007842 EXHIBIT 167 REDACTED FOR PUBLIC FILING BG 007843 EXHIBIT 168 REDACTED FOR PUBLIC FILING BG 007844 EXHIBIT 169 REDACTED FOR PUBLIC FILING BG 007845 EXHIBIT 170 REDACTED FOR PUBLIC FILING BG 007846 EXHIBIT 171 REDACTED FOR PUBLIC FILING BG 007847 EXHIBIT 172 REDACTED FOR PUBLIC FILING BG 007848 EXHIBIT 173 REDACTED FOR PUBLIC FILING BG 007849 EXHIBIT 174 REDACTED FOR PUBLIC FILING BG007850 EXHIBIT 175 REDACTED FOR PUBLIC FILING BG007851 EXHIBIT 176 REDACTED FOR PUBLIC FILING BG007852 EXHIBIT 177 REDACTED FOR PUBLIC FILING BG007853 EXHIBIT 178 REDACTED FOR PUBLIC FILING BG007854 EXHIBIT 179 REDACTED FOR PUBLIC FILING BG007855 EXHIBIT 180 REDACTED FOR PUBLIC FILING BG007856 EXHIBIT 18 1 REDACTED FOR PUBLIC FILING BG007857 EXHIBIT 182 REDACTED FOR PUBLIC FILING BG007858 EXHIBIT 183 REDACTED FOR PUBLIC FILING BG007859 EXHIBIT 184 REDACTED FOR PUBLIC FILING BG007860 EXHIBIT 185 REDACTED FOR PUBLIC FILING BG007861 EXHIBIT 186 REDACTED FOR PUBLIC FILING BG007862 EXHIBIT 187 REDACTED FOR PUBLIC FILING BG007863 EXHIBIT 188 REDACTED FOR PUBLIC FILING BG007864 EXHIBIT 189 REDACTED FOR PUBLIC FILING BG007865 EXHIBIT 190 REDACTED FOR PUBLIC FILING BG007866 EXHIBIT 191 REDACTED FOR PUBLIC FILING BG007867 EXHIBIT 192 REDACTED FOR PUBLIC FILING BG007868 EXHIBIT 193 REDACTED FOR PUBLIC FILING BG007869 EXHIBIT 194 REDACTED FOR PUBLIC FILING BG007870 EXHIBIT 195 REDACTED FOR PUBLIC FILING BG007871 EXHIBIT 196 REDACTED FOR PUBLIC FILING BG007872 EXHIBIT 197 REDACTED FOR PUBLIC FILING BG007873 EXHIBIT 198 REDACTED FOR PUBLIC FILING BG007874 EXHIBIT 199 REDACTED FOR PUBLIC FILING BG007875 EXHIBIT 200 REDACTED FOR PUBLIC FILING BG007876 EXHIBIT 201 REDACTED FOR PUBLIC FILING BG007877 EXHIBIT 202 REDACTED FOR PUBLIC FILING BG007878 EXHIBIT 203 REDACTED FOR PUBLIC FILING BG007879 EXHIBIT 204 REDACTED FOR PUBLIC FILING BG007880 EXHIBIT 205 REDACTED FOR PUBLIC FILING BG007881 EXHIBIT 206 REDACTED FOR PUBLIC FILING BG007882 EXHIBIT 207 REDACTED FOR PUBLIC FILING BG007883 EXHIBIT 208 REDACTED FOR PUBLIC FILING BG007884 EXHIBIT 209 REDACTED FOR PUBLIC FILING BG007885 EXHIBIT 210 REDACTED FOR PUBLIC FILING BG007886 EXHIBIT 211 REDACTED FOR PUBLIC FILING BG007887 EXHIBIT 212 REDACTED FOR PUBLIC FILING BG007888 1 3 [Attorney name (Bar No. ) Address Line 1 Address Line 2 Tel: Fax: ] 4 Attorney for Amicus Curiae [Name of Organization] 2 5 SUPERIOR COURT OF CALIFORNIA 6 COUNTY OF SAN MATEO 7 8 9 10 11 12 13 14 15 16 SIX4THREE, LLC, a Delaware limited Liability company, Plaintiff, v. FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; JAVIER OLIVAN, an individual; SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1 through 50, inclusive, Defendants. Case No. CIV533328 Assigned For All Purposes to Hon. V. Raymond Swope, Dept. 23 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO SEAL PLAINTIFF’S ANTI-SLAPP OPPOSITION HEARING DATE: July 2, 2018 HEARING TIME: 9:00 a.m. DEPARTMENT 23 JUDGE: Hon. V. Raymond Swope FILING DATE: April 10, 2015 TRIAL DATE: April 25, 2019 17 18 19 20 21 22 23 24 25 26 27 28 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO SEAL; Case No. CIV533328 BG007889 1 [Name of Organization] respectfully requests leave of this Court to file an amicus curiae 2 brief in support of Plaintiff’s Opposition to Defendants’ Motion to Seal Plaintiff’s Anti-SLAPP 3 Opposition. [Name of Organization] has a strong interest in promoting an informed public debate 4 regarding Defendants’ management of the Facebook Platform. [Name of Organization] has 5 reported extensively on these issues, which have long been in the public domain. As such, [Name 6 of Organization’s] experience with these issues may aid this Court in its consideration of the 7 factual and legal issues raised in this matter. Accordingly, [Name of Organization] requests leave 8 to file the amicus curiae brief attached as Exhibit A hereto. See Jersey Maid Milk Products Co. v. 9 Brock (1939) 13 Cal.2d 661, 665 [91 P.2d 599]; In re Veterans' Industries, Inc. (1970) 8 10 Cal.App.3d 902, 924-925 [88 Cal.Rptr. 303]; People ex rel. State Lands Com. v. Long Beach 11 (1960) 183 Cal.App.2d 271, 276; see also Cal. Rules of Court, Rule 8.200; 4 Witkin Cal. Proc., 12 Pleading § 215 (4th ed. 1997) at 278-280; CEB, California Civil Appellate Practice, § 14.66- 13 14.67. 14 15 1. [Name of Organization] is familiar with the history of Facebook and Facebook Platform, the issues involved in the case, and the pleadings and papers filed therein to date. 16 2. [Name of Organization] is [description of organization and its purpose]. 17 3. Over 2 billion people have relied upon or continue to rely upon Defendants to 18 manage Facebook Platform in a manner that respects the privacy of their digital information and 19 ensures their ownership and control over data they upload to the Platform. [Name of 20 Organization], as a media company, has a responsibility to promote an informed public debate 21 regarding Defendants’ management of the sensitive information and digital identities of almost 22 one-third of the world’s population. 23 4. Tens of millions of businesses rely upon Facebook Platform, which is one of the 24 largest economies globally with an economic impact dwarfing the GDP of most sovereign 25 nations, according to Facebook’s own estimates.1 [Name of Organization], as a media company, 26 27 28 1 See, e.g., https://newsroom.fb.com/news/2015/01/new-deloitte-report-looks-at-facebooksimpact-on-global-economy-jobs/. APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO SEAL; Case No. CIV533328 BG007890 1 1 has a responsibility to promote an informed public debate regarding the impact of Facebook 2 Platform on the economy, including any impacts on competition and consumer choice. 3 5. [Name of Organization] has [hundreds of thousands or millions] readers or 4 subscribers, many of whom are personally affected by the issues raised in this matter. All of these 5 readers or subscribers have a strong interest in full disclosure regarding Defendants’ management 6 of their data, including their management of third party access to such data. 7 6. As a result of media organizations like [Name of Organization] reporting on 8 Facebook Platform in 2018, a number of governments have opened investigations into 9 Facebook’s management of its Platform, including its management of user data and third party 10 data access. According to public announcements, government entities currently investigating 11 Facebook’s management of Platform and third party data access include the Attorneys General of 12 California, Massachusetts, Mississippi, Missouri, New Jersey, New York, Oregon, and 13 Washington; the United States Federal Trade Commission; and various European governments 14 and regulatory authorities.2 If true, Plaintiff’s allegations would directly refute a wide range of 15 statements Defendants have made in 2018 in response to inquiries by government authorities and 16 media organizations. As a respected national media organization, [Name of Organization] has a 17 strong interest and responsibility in reporting on these matters fully and truthfully to increase the 18 likelihood that the ongoing investigations proceed with the benefit of accurate and complete 19 information. 20 21 22 23 24 25 26 27 7. These strong interests of [Name of Organization] and its readership are threatened by Defendants’ Motion to Seal and their ongoing attempts to shield their internal 2 See https://ago.mo.gov/home/breaking-news/ag-hawley-issues-investigative-demands-tofacebook; https://ag.ny.gov/press-release/statement-ag-schneiderman-facebookcambridgeanalytica; http://www.ago.state.ms.us/releases/ag-hood-investigating-facebooks-user-privacypractices/; http://nj.gov/oag/newsreleases18/pr20180507b.html; https://oag.ca.gov/news/pressreleases/attorney-general-becerra-calls-facebook-protect-users-data; https://www.doj.state.or.us/ media-home/news-media-releases/ag-rosenblum-joins-coalition-demanding-answers-fromfacebook/; http://nwnewsnetwork.org/post/washington-oregon-attorneys-general-demandanswers-facebook; https://www.ftc.gov/news-events/press-releases/2018/03/statement-actingdirector-ftcs-bureau-consumer-protection; https://ico.org.uk/about-the-ico/news-and-events/newsand-blogs/2018/05/ico-statement-investigation-into-data-analytics-for-political-purposes/. 28 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO SEAL; Case No. CIV533328 BG007891 2 1 communications, decisions and processes from public view. These strong interests outweigh any 2 legitimate interest Defendants may have in sealing Plaintiff’s Anti-SLAPP Opposition and the 3 supporting declaration and exhibits. 4 8. [Name of Organization’s] purpose in filing an amicus brief is to alert this Court to 5 a significant public interest in understanding how Defendants have managed their data in light of 6 the ongoing public debate regarding Facebook Platform, the significant power Defendants wield 7 over individuals and businesses, and whether Defendants have lived up to the responsibility that 8 comes with that power. As such, [Name of Organization] does not seek to introduce new legal 9 theories or evidence. Further, while [Name of Organization] supports Plaintiff’s Opposition to 10 Defendants’ Motion to Seal, [Name of Organization] takes no position on any claims or defenses 11 asserted by either Party in this matter. Rather, [Name of Organization] submits this brief in order 12 to elaborate on some key issues raised by the parties regarding the importance of the public 13 interest in accessing true and accurate information regarding Defendants’ management of 14 Facebook Platform. 15 9. To this end, [Name of Organization’s] brief focuses on two key legal issues: (1) 16 whether the evidence sought to be unsealed is relevant to the public interest; and (2) whether 17 Defendants’ Motion to Seal meets the stringent requirements of Rule 2.550(d). 18 19 20 21 22 23 24 25 WHEREFORE, [Name of Organization] respectfully requests that this Court grant leave to file the amicus curiae brief attached as Exhibit A hereto. DATED: [ATTORNEY FIRM OR ORGANIZATION NAME] By: [Attorney Name] Attorney for Amicus Curiae [Organization Name] 26 27 28 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO SEAL; Case No. CIV533328 BG007892 3 EXHIBIT A BG007893 1 3 [Attorney name (Bar No. ) Address Line 1 Address Line 2 Tel: Fax: ] 4 Attorney for Amicus Curiae [Name of Organization] 2 5 SUPERIOR COURT OF CALIFORNIA 6 COUNTY OF SAN MATEO 7 8 9 10 11 12 13 14 15 16 SIX4THREE, LLC, a Delaware limited Liability company, Plaintiff, v. FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; JAVIER OLIVAN, an individual; SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1 through 50, inclusive, Defendants. Case No. CIV533328 Assigned For All Purposes to Hon. V. Raymond Swope, Dept. 23 BRIEF OF AMICUS CURIAE IN OPPOSITION TO DEFENDANTS’ MOTION TO SEAL PLAINTIFF’S OPPOSITION TO DEFENDANTS’ ANTI-SLAPP MOTIONS HEARING DATE: July 2, 2018 HEARING TIME: 9:00 a.m. DEPARTMENT 23 JUDGE: Hon. V. Raymond Swope FILING DATE: April 10, 2015 TRIAL DATE: April 25, 2019 17 18 19 20 21 22 23 24 25 26 27 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 BG007894 1 TABLE OF CONTENTS 2 3 4 5 6 7 8 9 10 INTRODUCTION ……………………………………….…………………………........... STATEMENT OF FACTS ….…………………………………………...………………... ARGUMENT….……………………………………………………………...………......... I. Legal Standard……………………………………………………………... II. Defendants’ Motion to Seal Should Be Denied As the Public Has a Strong Interest In Determining the Veracity of Plaintiff’s Allegations……. III. Defendants Cannot Meet the Stringest Requirements of Rule 2.550(d)..….. CONCLUSION……………………………………………………….………………......... 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 BG007895 i TABLE OF AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Page CASES H.B. Fuller Co. v. Doe, (2007) 151 Cal.App.4th 879 [60 Cal.Rptr.3d 501]……………………………. Huffy Corp. v. Superior Court, (2003) 112 Cal.App.4th 97 [4 Cal.Rptr.3d 823]………………………………. McNair v. National Collegiate Athletic Assn., (2015) 234 Cal.App.4th 25 [183 Cal.Rptr.3d 490]……………………………. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, (1999) 20 Cal.4th 1178 [86 Cal.Rptr.2d 778, 980 P.2d 337]………….............. Overstock.com, Inc. v. Goldman Sachs Group, Inc., (2014) 231 Cal.App.4th 471 [180 Cal.Rptr.3d 234]………………...…………. passim Williams v. U.S. Bank N.A., (E.D.Cal. 2013) 290 F.R.D. 600……………………………………………….. STATUTES AND OTHER AUTHORITIES C.R.C. 2.550 et seq……………………………………….…………………………...... passim 17 18 19 20 21 22 23 24 25 26 27 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 BG007896 ii 1 INTRODUCTION 2 3 4 5 6 [Name of Organization] (“Amicus”) respectfully submits this Brief in Opposition to Defendants’ Motion to Seal Plaintiff’s Opposition to Defendants’ Anti-SLAPP Motions and the Declaration of David S. Godkin In Opposition to Defendants’ Anti-SLAPP Motions, including all exhibits filed therewith. As detailed herein and in the papers filed by Plaintiff and the Defendants, 7 there is no dispute that this matter “greatly implicates the public interest.” See, e.g., Facebook’s 8 Special Motion to Strike (Anti-SLAPP), filed on November 21, 2017, at 2; Plaintiff’s Fifth 9 Amended Complaint (“5AC”), ¶ 6. Over 2 billion people have relied upon or continue to rely 10 11 12 13 14 upon Defendants to manage Facebook Platform in a manner that respects the privacy of their digital information and ensures their ownership and control over data they upload to the Platform. Further, tens of millions of businesses rely upon Facebook Platform, which is one of the largest economies globally with an economic impact dwarfing the GDP of most sovereign nations, 15 according to Facebook’s own estimates.1 Amicus has [hundreds of thousands or millions] readers 16 or subscribers, many of whom are personally affected by the issues raised in this matter. All of 17 these readers or subscribers have a strong interest in full disclosure regarding Defendants’ 18 management of data, particularly third party access to data. 19 20 21 As a result of media organizations reporting on Facebook Platform in 2018, a number of governments have opened investigations into Facebook’s management of its Platform with a 22 particular focus on its management of user data and third party data access in the 2011 to 2015 23 timeframe. According to public announcements, government entities currently investigating 24 Facebook’s management of Platform and third party data access include the Attorneys General of 25 California, Massachusetts, Mississippi, Missouri, New Jersey, New York, Oregon, and 26 27 28 1 See, e.g., https://newsroom.fb.com/news/2015/01/new-deloitte-report-looks-at-facebooksimpact-on-global-economy-jobs/. AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 1 BG007897 1 Washington; the United States Federal Trade Commission; and various European governments 2 and regulatory authorities.2 If true, Plaintiff’s allegations would directly refute a wide range of 3 4 5 6 statements Defendants have made in 2018 in response to inquiries by government authorities and media organizations regarding its management of Platform from 2011 to 2015. As a respected national media organization, Amicus has a strong interest and obligation to the public to report on 7 these matters fully and truthfully. Therefore, Amicus respectfully requests the Court deny 8 Facebook’s Motion to Seal as to all evidence submitted by Plaintiff in Opposition to Defendants’ 9 Anti-SLAPP Motions that is more than three years old and contains no bank statements or 10 11 12 account information, source code, non-public financial information, trade secrets, national security matters or sensitive personal information, such as credit card or social security data. STATEMENT OF FACTS 13 Amicus adopts and incorporates by this reference the statement of facts set forth in 14 15 Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendants’ Motion to Seal. 16 Further, Amicus adopts and incorporates by this reference the following exhibits to Plaintiff’s 17 Request for Judicial Notice (“RJN”) filed on May 17, 2018: 18 1. RJN Exhibits 1-27 – These exhibits consist of official statements, publications and 19 records by Facebook regarding Facebook Platform from 2007 through 2018. 20 21 22 23 24 25 26 27 2 See https://ago.mo.gov/home/breaking-news/ag-hawley-issues-investigative-demands-tofacebook; https://ag.ny.gov/press-release/statement-ag-schneiderman-facebookcambridgeanalytica; http://www.ago.state.ms.us/releases/ag-hood-investigating-facebooks-user-privacypractices/; http://nj.gov/oag/newsreleases18/pr20180507b.html; https://oag.ca.gov/news/pressreleases/attorney-general-becerra-calls-facebook-protect-users-data; https://www.doj.state.or.us/ media-home/news-media-releases/ag-rosenblum-joins-coalition-demanding-answers-fromfacebook/; http://nwnewsnetwork.org/post/washington-oregon-attorneys-general-demandanswers-facebook; https://www.ftc.gov/news-events/press-releases/2018/03/statement-actingdirector-ftcs-bureau-consumer-protection; https://ico.org.uk/about-the-ico/news-and-events/newsand-blogs/2018/05/ico-statement-investigation-into-data-analytics-for-political-purposes/. 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 2 BG007898 1 2. RJN Exhibits 28-35 – These exhibits consist of official records and communications 2 between the United States Federal Trade Commission and Facebook regarding 3 Facebook Platform and management of user data, including third party access to data, 4 from 2011 to 2012. 5 3. RJN Exhibits 52-67 – These exhibits consist of public statements and representations 6 7 by Facebook’s senior executives to various media organizations primarily in the 2010 8 to 2014 timeframe. 9 4. RJN Exhibits 72-200 – These exhibits consist of articles published by nationally 10 recognized media organizations regarding Facebook Platform and management of user 11 data, reporting on many of the issues raised in the instant matter, from 2007 to 2018. 12 13 As Plaintiff’s RJN demonstrates, the issues at the heart of this case have been widely reported on 14 in the media. Further, Defendants have voluntarily made statements and representations to the 15 media since 2007 regarding these issues and have therefore brought these issues into the public 16 17 18 19 20 sphere of their own accord. Amicus incorporates into the record the fact of Defendants’ publications and statements, and the associated media coverage, from 2007 to 2018, while taking no position on the truth or falsity of Defendants’ representations. Additional facts and citations to the record will be provided in the body of the argument as necessary. ARGUMENT 21 22 23 24 25 I. Legal Standard California recognizes a First Amendment right of access to civil litigation documents filed in court as a basis for adjudication of a non-discovery motion, such as this Anti-SLAPP Motion. 26 See C.R.C. 2.550 and 2.551; Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 27 Cal.App.4th 471, 485 [180 Cal.Rptr.3d 234]. Any sealing issues raised by the parties are to be 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 3 BG007899 1 resolved contemporaneous with the substantive underlying motion and shall not be delayed. Id., 2 at 473 (“Cal. Rules of Court, rule 2.550(a)(3), cannot be read in a way that necessarily delays the 3 4 5 6 resolution of sealing issues until after a trial court rules on the merits. Indeed, the courts have expressed concern about delayed rulings on sealing issues”); 495-496 (“access should be immediate and contemporaneous”) (quotations omitted). Prior sealing orders are subject to 7 “continuing review and modification by the trial judge” to ensure an “evolving view of the 8 propriety of sealing.” Id., at 482-483. The constitutional right of access to materials submitted as 9 a basis for adjudication applies to all submitted materials regardless of whether the trial court 10 11 12 13 14 relies upon them when ruling so long as they are not “irrelevant” to the matter being adjudicated (e.g., the Overstock court held that the bank balance of a party was irrelevant to the plaintiff’s arguments in support of its case). Id., at 473, 492, 508. An order denying a motion to seal or an order granting a motion to unseal does not require express factual findings, but an order granting 15 a motion to seal does. Id., at 488. A party, the Court, or any member of the public may seek to 16 unseal materials submitted in support of or in opposition to any substantive, non-discovery 17 motion. See C.R.C. 2.551(h)(2) (emphasis added). 18 19 20 21 Once the sealed record rules are triggered, as they are here, “court records are presumed to be open” and the Court “may order a record sealed only upon making express findings that (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the 22 overriding interest supports sealing the record; (3) a substantial probability exists that the 23 overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is 24 narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest.” See 25 Overstock (2014) 231 Cal.App.4th at 487; Rule 2.550(c)-(d). The Court must make express factual 26 27 28 findings supporting the sealing order and failure to do so makes the “order deficient”. See Overstock (2014) 231 Cal.App.4th at 487; Rule 2.550(e)(1)(A). AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 4 BG007900 1 II. Defendants’ Motion to Seal Should Be Denied As the Public Has a Strong Interest In Determining the Veracity of Plaintiff’s Allegations 2 3 4 5 6 7 8 9 The 5AC includes a wide range of allegations regarding issues that have been widely reported on in the media, and the public has a strong interest in getting to the bottom of these issues. This interest is heightened by the fact that three of the Defendants (Zuckerberg, Cox and Olivan) to this day maintain control over Facebook’s products and services. In fact, two of the Defendants (Cox and Olivan) were promoted in May 2018 to expand their control over virtually all of Facebook’s products and services; at the same time, Facebook announced plans to build 10 new platforms.3 In light of Defendants ongoing control over the data of more than 2 billion 11 people, the public has a strong interest in evidence pertaining to the following allegations: 12 1. The 5AC alleges that in 2011 and 2012 Zuckerberg held discussions with a select group 13 of executives in which they agreed upon a scheme to weaponize user data and violate 14 user privacy in order to transition Facebook’s collapsing desktop advertising business to 15 16 mobile advertising using a vague policy called “reciprocity”. 5AC ¶¶ 85, 209. These 17 issues have been reported in the media. See, e.g., Plaintiff’s RJN, Exs. 72, 76, 81. Further, 18 any evidence submitted in support of these allegations is now more than five years old 19 and should be released to the public. 20 2. 21 executives to continue to induce third parties to rely on data Zuckerberg had already 22 decided to privatize while approaching a select group of companies to shut down under 23 24 25 26 27 The 5AC alleges that in late 2012 and early 2013, Zuckerberg instructed senior 3 Facebook announced in May 2018 an executive management reshuffle that consolidates the power of Cox and Olivan in the company and creates an entire division at the company devoted to building new “platforms.” See, e.g., https://www.vanityfair.com/news/2018/05/facebookexecutive-reorganization (Facebook announces executive reshuffle on May 8, 2018 in which Cox now oversees Facebook, Instagram, WhatsApp and Facebook Messenger, and Olivan oversees all other central product services including growth, advertising, security, integrity, privacy and other critical functions). 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 5 BG007901 1 the guise of the reciprocity policy in order to force them to buy unrelated mobile ads. 2 5AC ¶¶ 85, 211-213, 238, 295. These issues have been reported in the media. See, e.g. 3 4 5 6 Plaintiff’s RJN, Exs. 72, 152. Further, any evidence submitted in support of these allegations is now more than five years old and should be released to the public. 3. The 5AC alleges that in 2013 Facebook expanded its scheme to weaponize user data by 7 blacklisting and whitelisting companies based on their willingness to purchase mobile ads 8 and their degree of competitiveness with Facebook’s own future products in order to 9 determine the winners and losers in a wide range of consumer software markets, 10 11 12 13 14 including messaging, professional services, contact management, gifting, payment, sharing economy, utility, file sharing, birthday reminder, photo and video, calendar, lifestyle and health and fitness apps. 5AC ¶¶ 16-18, 88-90, 212. These issues regarding anti-competitive conduct have been reported in the media. See, e.g., Plaintiff’s RJN, Exs. 15 72, 152. Further, any evidence submitted in support of these allegations is now more than 16 four years old and should be released to the public. 17 18 19 20 21 4. The 5AC alleges that in the second half of 2013 and first half of 2014 Defendants created and disseminated a fraudulent narrative that falsely portrayed major Platform changes announced on April 30, 2014 as being justified by user privacy concerns in order to wipe out 40,000 consumer software applications to make way for Facebook’s new products 22 and services. 5AC ¶¶ 23-27, 85, 223-226. These issues regarding anti-competitive 23 conduct have been reported in the media. See, e.g., Plaintiff’s RJN, Exs. 72, 152, 165. 24 Further, any evidence submitted in support of these allegations is now more than four 25 years old and should be released to the public. 26 27 28 5. The 5AC alleges that from 2012 to 2015, Defendants used Facebook’s willful failure to implement proper privacy controls to violate the privacy of hundreds of millions of AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 6 BG007902 1 consumers in a wide range of projects, including projects widely reported in the media 2 like tracking competitors using improperly obtained Onavo data, tracking the text and call 3 4 5 6 logs of Android users without consent, developing shadow profiles of non-Facebook users by tracking their text and call logs without consent, turning the Bluetooth setting on the phone on without user permission, causing privacy settings to lapse after a period of 7 time, and willfully ignoring privacy settings for certain popular Facebook features. 5AC 8 ¶¶ 226-233. See, e.g., Plaintiff’s RJN, Exs. 99, 138, 141, 172, 176, 181, 183. 9 The public has a fundamental interest in determining the veracity of these allegations, which 10 11 12 13 14 15 16 17 18 19 cannot be overridden by any legitimate interest Defendants may have to keep the records sealed. In fact, if Defendants’ representations are true, then unsealing the evidence will vindicate Defendants, which the public also has a strong interest in knowing given the immense trust the public places in Defendants to safeguard their digital identities and personal information. III. Defendants Cannot Meet the Stringest Requirements of Rule 2.550(d) Defendants contend that their overriding interest in sealing Plaintiff’s Opposition to Defendants’ Anti-SLAPP Motion and Plaintiff’s supporting declaration and exhibits arises out of the fact that they contain Facebook’s internal strategic analyses and business discussions, the 20 release of which could damage Facebook’s business and business relationships and its 21 relationships with third parties. Defendants provide no additional information regarding how and 22 why any specific document will damage any current business relationship. Defendants further 23 provide no nexus between information that is now more than three years and up to ten years old 24 25 26 27 and any current legitimate interest Facebook may have today. Defendants do not identify any specific information as being subject to any ongoing confidentiality obligation under a currently enforceable contract with a third party. 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 7 BG007903 1 2 3 4 5 6 Rather, Defendants have asserted generically that they have an overriding interest in avoiding embarrassment to their business reputation and in preventing the release of information that may or may not implicate them in unlawful conduct. See, Huffy Corp. v. Superior Court (2003) 112 Cal.App.4th 97, 108 [4 Cal.Rptr.3d 823] (“Defendant has failed to demonstrate an overriding interest to permit sealing this type of admission…. [N]o overriding public interest 7 warrants secreting from the public documents filed in its courts that there may have been 8 violations of…laws.”); McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 9 35-36 [183 Cal.Rptr.3d 490] (“There must be a specific showing of serious injury. [S]pecificity is 10 11 12 13 14 essential. Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient.”) (quotations and citations omitted). No court has found an overriding interest under Rule 2.550(d) in discussions, emails and documents that: (1) are more than three years old, and in many cases five or six years old; (2) contain no personally identifiable information, bank 15 statements or accounts, source code, financial information, trade secrets, or material subject to a 16 current confidentiality or contractual obligation; and (3) concern conduct that has been widely 17 and voluntarily disclosed by Defendants in the public sphere and the media.4 A much higher 18 19 20 21 22 23 24 25 26 27 28 See, e.g., Overstock (2014) 231 Cal.App.4th at 482 (“The court next concluded, as to a significant number of the materials, defendants' declarations were conclusory and unpersuasive, and lacked the specific facts necessary to support sealing. The court additionally concluded plaintiffs had persuasively show[n] many of the documents no longer had sufficient indicia of confidentiality to warrant sealing. In sum, [g]iven (1) that this case was filed in February 2007, more than five years ago, (2) that most, if not all, of the transactions reflected in the documents are at least four years old, (3) that many of the allegedly confidential business practices and trading strategies are outdated due to changes in federal law, and (4) that much of the material at issue was publicly disclosed at the January 5, 2012 hearing on the motions for summary judgment, the trial court observed, defendants' failure to present specific facts to justify sealing the documents at issue is understandable.”) (quotations and citations omitted); H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894-898 [60 Cal.Rptr.3d 501] (party seeking to seal records “never identified any specific facts disclosure of which would harm any identified interest” but instead simply stated that the material included its “business strategy and forecasts, competitive outlook, [and] product development” without identifying anything “that discloses information in any of these categories”). 4 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 8 BG007904 1 burden is required by California courts for a party to establish an overriding interest under Rule 2 2.550(d)(1), particularly when that interest seeks to prevent public access to materials submitted 3 4 5 6 in opposition to a motion seeking final judgment. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222, fn. 46 [86 Cal.Rptr.2d 778, 980 P.2d 337] (citing cases in which an overriding interest has been found that entail interests much more extreme and 7 protected than that which Defendants assert here, such as the protection of minors from trauma or 8 the safeguarding of trade secrets or national security matters). 9 10 11 12 13 14 Further, Defendants cannot meet their burden under Rule 2.550(d)(2) because, even if Defendants had identified an overriding interest, such an interest would necessitate unsealing the record based on Defendants’ own arguments in their Anti-SLAPP Motion that the conduct at issue greatly implicates the public interest and was undertaken in furtherance of Defendants’ First Amendment rights to free speech. Finally, Defendants’ argument that their proposal is narrowly 15 tailored is specious, and there are less restrictive means to achieve any legitimate overriding 16 interest if Defendants are able to identify one. Defendants’ Motion to Seal sweeps up whole cloth 17 the content of every document, email and deposition testimony produced by Defendants or their 18 19 20 21 employees cited in opposition to the Anti-SLAPP Motion. Defendants’ proposal could not possibly be less narrow and further makes no attempt to identify specific information that would cause direct and identifiable harm to Defendants if released. Further, there are clearly less 22 restrictive means to achieve any legitimate overriding interest Defendants may have in preserving 23 their relationships with third parties. 24 25 26 27 If Defendants had articulated clearly how any specific piece of information jeopardizes a specific, ongoing contractual commitment, then this would have guided the Court to parse the evidence to satisfy any legitimate concerns Defendants may have. However, Defendants opted 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 9 BG007905 1 not to identify materials with specificity and therefore cannot meet their burden under Rule 2 2.550(d)(4)-(5). Overstock (2014) 231 Cal.App.4th at 500 (“Finally, on the other side of the 3 4 5 6 equation the trial courts can, and should, view overly inclusive sealing efforts with a jaundiced eye, and impose sanctions as appropriate.”); Williams v. U.S. Bank N.A. (E.D.Cal. 2013) 290 F.R.D. 600, 606, fn. 9, italics omitted (threatening sanctions when “defendant made no effort at 7 all to seal only those portions of the substantive exhibits that it actually wanted to protect as 8 confidential”). Defendants are required to satisfy all five prongs of Rule 2.550(d) and yet their 9 Motion to Seal cannot satisfy any of these prongs. 10 11 12 CONCLUSION For the foregoing reasons, Defendants’ Motion to Seal should be denied. 13 14 15 16 17 18 DATED: [ATTORNEY FIRM OR ORGANIZATION NAME] By: [Attorney Name] Attorney for Amicus Curiae [Organization Name] 19 20 21 22 23 24 25 26 27 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 10 BG007906 EXHIBIT 29 From: James Kruzer Sent time: 05.17.2018 0?:11:58 PM To: Cc: David Godkin; Thomas Swmellino Ted Kramer Subject: Six4Three v. Facebook Application and Amicus Brief 01 Opp to Motions_180510 - publicpdf 01a DSG Bed. 130 opp to Anti-slapp motions all m. - Publicpdf Application for Leave to File Amicus Brief [template].docx Please ?nd attached the redacted brief and redacted supporting declaration we ?led today in Opposition to Defendants' Motion. The unredacted versions ofthese documents include approximately 3,000 pages of evidence we are seeking to unseal at the July 2 hearing. Attachments: Please also ?nd attached a draft Application for Leave to File Amicus Brief and the Amicus Brief itself as Exhibit Ato the Application. This is a template that The Wall Street Journal should feel free to modify as it sees ?t and is intended solely to reduce the amount of time and money you need to spend in researching California state law and preparing the brief from scratch. The brief makes clear that The Wall Street Journal takes no position on the claims and defenses in the case and supports neither Party. Rather. your organization's sole purpose in ?ling the brief is to examine the evidence in light of the strong public interest in getting to the bottom of Facebook's management of user data. particularly regarding third party access from 2012 to 2015. Please let us know when you and/or your counsel might be available for a call to discuss the brief and ?ling process. Afew items are worth mentioning at the outset: 0 The brief must be ?led with the clerk no later than June 6 to be heard on July 2. Many clerks in California trial courts are not familiar with amicus ?ling procedures, though ?ling an amicus brief is clearly permitted at the Court's discretion. 0 We recommend ?ling with the clerk well in advance of the June 6 deadline in case the clerk needs to be educated on this procedure. We are happy to assist in this. 0 We also recommend ?ling a courtesy copy directly with the Judge to ensure he is aware of your intent to ?le the brief. 0 The hearing is on July 2 at 9:00 am in Department 23 of the San Mateo Superior Court at 400 County Center. Redwood City. CA. We recommend having reporters at the hearing as the substantive motions will be argued at that time. Please contact me any time with any questions. I look forward to hearing from you. Regards. . 36006427 er Kruzer EXHIBIT 30 From: James szer Sent time: 05.17.2018 07:23:39 PM To: -apmg Cc: David Godkin; Ted Kramer ; Thomas Scamnellino Subject: Sixd'l?hree v. Facebook Application and Amicus Brief Application for Leave to File Amicus Brief [tetnplate].docx 01 Opp to Motions_180510 - publicpdf 01a DSG Dec]. 130 opp Attachments: to Anti. 51? pp motions wall ens. Publicpdf degr-? Please ?nd attached the redacted brief and redacted supporting declaration we ?led today in Opposition to Defendants? Motion. The unredacted versions of these documents include approximately 3,000 pages of evidence we are seeking to unseal at the July 2 hearing. Please also ?nd attached a draft Application for Leave to File Amicus Brief and the Amicus Brief itself as Exhibit Ato the Application. This is a template that The Associated Press should feel free to modify as it sees ?t and is intended solely to reduce the amount oftime and money you need to spend in researching California state law and preparing the brief from scratch. The brief makes clear that The Associated Press takes no position on the claims and defenses in the case and supports neither Party. Rather. your organization's sole purpose in ?ling the brief is to examine the evidence in light of the strong public interest in getting to the bottom of Facebook's management of user data, particularly regarding third party access from 2012 to 2015. Please let us know when you and/or your counsel might be available for a call to discuss the brief and ?ling process. Afew items are worth mentioning at the outset: 0 The brief must be ?led with the clerk no later than June 6 to be heard on July 2. Many clerks in California trial courts are not familiar with amicus ?ling procedures, though ?ling an amicus brief is clearly permitted at the Court's discretion. 0 We recommend ?ling with the clerk well in advance of the June 6 deadline in case the clerk needs to be educated on this procedure. We are happy to assist in this. 0 We also recommend ?ling a courtesy copy directly with the Judge to ensure he is aware of your intent to ?le the brief. 0 The hearing is on July 2 at 9:00 am in Department 23 of the San Mateo Superior Court at 400 County Center, Redwood City. CA. We recommend having reporters at the hearing as the substantive motions will be argued at that time. Please contact me any time with any questions. I look forward to hearing from you. Regards. . 86006428 Jim Kruzer EXHIBIT 31 From: Thomas Swamellino Sent time: 0601,2018 12:25:20 PM To: -politico.eu> Cc: James szer, David Godkinj Stuan Gross <5gross@grosskleinlaw.com> Subject: Re: FB Motion to Seal - will Politico be joining the Guardian's ?ling on this or participating in some other fashion? Briefs should be ?led by Tues. \Ve've made clear that we will only be working with organizations who support making this midence public and having an informed and transparent debate on these critical issues. Please advise by end of day. On Thu, May 31, 2018 at 9:18 AM, Thomas Scaramellino wrote: We are still waiting to hear back ?om the clerk- Most likely scenario is we stick with current plan of ?ling amicus brief. They ?led their belated motion to seal late last night- Please see attached Let's setup a call to discuss. I am very busy today but perhaps one of the other attorneys has time. Are you working with Guardian or another group on joining an amicus brief? Best, Tom 36002172 [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 32 From: Thomas Searamellino ?thomassearamellino?gmaileom} out time: 01-11-1013 11:14:03 AM Io: ?megwamw_maexw Cc: David Godlrin'. James Kruzer; Theodore Kramer {Theodore-Kramer?gmaileom} Subject: Follow up from call Dec 1010 Karesla order 1.pdf Dec 1010 Karesla order 1.pdf Sept 15 10115 Karesla discoveryr order-pdf Order Sept 11 1013' discovery-pdf 1010-00?30 031 Order on Demurrer re Second Amended Complaint-pdf 1013.10.10 Faeebook's Supp. Resp. to SisdTlaree's Set DATA a1013-03-03 1543 Third Set of Demands for Inspection of Document s.pdf 1010-03?15 103 Facebook 1nd Supp Obj s-Resps to 1st Doc Request-pdf 03 1013-01?10 Portion of Joint Submission R-EDACTED {1}.pdf 1013.01.19 EHAL Individual Defendants P'eremptorj.r Challenge per 130.0.pdf 1010-10?14 Signed Protective Order-pdf FILED lCorrected Opp to Individual Defendants Anti?SLAPEpdf BACKGROUND 1WHERE OTHERWISE Attachments: Hi all. following up on ourcall. please see the information you requested below--. pass along to-as I don't seem to have her email readily available- Keep us posted on plans and hoping we get a positive decision ?om the Guardian soon regarding ?ling a briefto make the evidence public- It is critical that we don't make this a huge story and then have no support helping us to ?ght back with the bene?t ofthe evidence- It will create a very dif?cult environment for both Ted and the various attorneys working on this case- We will wait to hear ?om you on that front. On record comment from David Godkin. Lead Counsel for "We have no comment to the media at this time otherthan to saythat we are opposing Facebook's efforts to seal certain evidence on July 2 before the San Mateo Superior Court because we believe the public has a right to see the evidence and are con?dent the evidence clearly demonstrates the truth of our allegations. and much more-" Legal background {source: public docket this procedural history is all in the public docket online and that should be the source for it. certain public documents you asked for on call are attached here}: The case was ?rst ?led in April 2015. right as the Graph API 20 changes went into effect- The San Mateo County Superior Court has ruled that the developer has viable claims as to California's unfair competition law. various ?aud and tort claims. as well as a breach of contract claim- When the judge ordered Facebook to produce key documents in late 2015. Facebook ?red their ?rst law ?rm. delaying the production by a number of months- Then. on the eve oftheirdeadline to ?le any summaryjudgment motions in January 201?. Facebook without any basis removed the case to federal court to vacate the original May 201? trial date only to have the case remanded back to state courtjust one month later- Unfortunately. California courts are so backed upthat the next available trial date was not until April 2010 [two years a?er the original trial date and four years a?er the case was ?rst ?led}- Then. in late 201?. days before Facebook was required by the court to produce certain Zuckerberg emails on December 201?. Facebook ?led an motion under California's statute. which was enacted to eliminate frivolous lawsuits attempting to infringe on ?ee speech rights in the ?rst 50 days of a case- Facebook waited 1.000 days after the case began to ?le their motion. which papers in the case indicate is the latest ?led motion on record in California- Then. a?er a hearing in which the judge indicated that Facebook?s motion might be untimely. that same week Facebook used a rare provision in California law to disqualify thejudge by attesting under penalty of perjury that she was prejudiced against Facebook. even though she had previously prevented the developer ?om adding Zuckerberg and others as defendants in the case- The developer was required to seek a writ of mandamus ?om a California appellate court. which reversed the lower court's decision and required the lower court to name Zuckerberg and ?ve other executives as defendants in 201?- On July 2. the Court will determine if Facebook can continue to shield this evidence ?om public view in light of its clear relevance to getting to the bottom of Cambridge Analytica and a wide range of other reported privacy and monopoly issues related to Facebook?s management ofuserdata- Further. even though it is public knowledge that Facebook published a reciprocity policy [see l-10} on Januam25. 2013. Facebook?s lawyers for three years now have claimed in multiple veri?ed discovery responses [under penalty of perjury} that Facebook never had a reciprocity policy and that there are no internal Facebook emails that contain the words "reciprocity policy." a rather remarkable claim in light ofthe fact that the announcement ofthis policy is a matter of public record and easily veri?able on the Internet- Facebook?s aggressive delay tactics stalling this case for over three years may now be working against it. as the timing of a judge's decision to release documents on July 2 comes right as Facebook is trying to assure the public of its response to the Cambridge Analytica scandal- The public has a right to the evidence uncovered in this case as it is critical to this ongoing debate around digital privacy and monopoly. including the many ongoing investigations into Facebook?s handling of userdata- lf Facebook?s response to Cambridge Analytica is true. then why is Facebook trying so hard to prevent this information ?om coming to light if it would vindicate Facebook?s statements to the media these past few months? Ted?s company. {source: public docket - this information is all in briefs in the public docket} Developer alleges that it was shut down based on Euckerberg's fraudulent scheme decided upon in 2012 and that most all developers usin Faeebeel-s: F'latferm frem 2?12 en were livin en berrewed time and all their investment eftime and mene was inevitabl ein te the app until it get sued bythe develeper. se it's quite irenie that Faeebeel-t is new en its meral high herse}- Faeebeel-t ne deubt will use its media in?uenee te further malign the develeper. It already appears te have dene se- ln Marsh. a teeh editer at Elleemberg published a that like it had been dra?ed direetly by Faeebeel-c: en the ease witheut eensulting Elleemberg's Faeebeel-t beat reperter er asl-ting the develeper fer eemment- That same weel-r Elleemberg did an exelusive interview with Sheryl Sandberg. Hard te see hewthere wasn't a quid pre que there. The develeper was a seed stage startup ealled six4Three [543}. It was a eemputer visien teehnelegythat ultimately wanted te build a business identifying brands and elething in phetes fer e-eemmeree and marl-reting purpeses. Imagine ifyeu eeuld tap en a shirt in any phete en Faeebeel-t and buy it right away beeause the se?ware autematieally the shirt. It was building up a phetes database te train its algerithms and its early researeh shewed that peeple were frustrated viewing phetes en Faeebeel-r beeause it was hard te ?lter them te see the enes yeu want- Se all this app did was put a ?lter en the phetes yeu already had te en Faeebeel-s: te ?nd the enes where yeur friends were having fun in the summer. at the beaeh. peel er en a beat. sinee researeh shewed that this was what mest peeple were using Faeebeel-r phetes fer anyway and se it eeuld helpthe eempanytrain its algerithms te build its eere preduets- The app teel-r great eare te respeet user privaey and never vielated it. Llsers eeuld enly see phetes they eeuld already see en Faeebeel-r. lfFaeebeel-rteel-c: dewn an effensive phete. the appteel-c: it dewn as well- Llnlil-ce Cambridge Analytiea. Faeebeel-r never teel-s: issue with It's a red herring Faeebeel-t uses as a sideshewte attempt te distraet the media ?em its ewn eenduet. mest anti- eempetitive and privaey-vielating seheme in the histery ef se?ware in terms ef its impaet en the breader eensumer eheiee. eensumer eentrel ever data. and the abilityte have a eempetitive eensumer seftware marl-tet. Questiens we gave -fer l'u'lPs: What was the reeipreeity peliey? Why did Faeebeel-r implement the reeipreeity peliey and what did it require er prehibit? Did Faeebeel-t ever use the reeipreeity peliey te gain leverage ever eempetiters er te feree a eempany te buy advertising in erderte eentinue te AF'ls Faeebeel-r elaimed were publiely available ?ee ef eharge? Did yeu ever direet a Faeebeel-r empleyee te shut dewn a eempany under the reeipreeity pelieythat had net vielated user privaey er any ether Faeebeel-t peliey? What types ef eempanies did the reeipreeity peliey apply te? What speei?e eempanies? Did Faeebeel-t's AF'ls pass the privaey setting ef a efdata when transmitting that data te a third party? If I'm a third party the friends phetes fer instanee. in EDM. and the user has eensented te having herfriends her phetes in my app. weuld Faeebeel-t's API have alse sent me all the privaey settings en these phetes se l-cnew hew te preperly handle them and whe eeuld viewthem in my ewn app? Did Faeebeel-s: ever ignere privaey settings ef a user fer its ewn features in the Faeebeel-s: app er en the Faeebeel-s: website? Faeebeel-t represented that a eempany did net have te buy advertisements in erder te assess the F'latferm AF'ls Faeebeel-t ehese te mal-re freely available te these third parties. eerreet? In light efthis. did Faeebeel-t ever use its F'latferm AFlls. partieularly these that transmit user data. as leverage te feree a eempanyte buy advertisements? It has been reperted in the media that Faeebeel-t trael-ted the texts and ealls efAndreid users in EMS and EMS. Is that when this pregram te trael-r sails and texts began? When did Faeebeel-r ?rst start trael-ting these texts and ealls? When Faeebeel-r ?rst started trael-ting these texts and ealls. did it ebtain the appreval ef Faeebeel-t's privaey department? Did it update the Andreid permissiens dialeg te elear in the dialeg that this was a new set ef permissiens the userwas granting? Did Faeebeel-t ever use the texts and ealls efAndreid users te ereate pre?les ef nen-Faeebeel-r users. where Faeebeel-t weuld stere this infermatien abeut nen-users te supplement its internal graph ef seeial eenneetiens? When Faeebeel-r anneuneed Graph ll] en April 3U. BUM. netieed that there is enly a single line at the bettem efthe anneuneement that says "In additien te the abeve. we are remeving several rarely used endpeints..-." These endpeints were the enes that Prefesser Hegan and Cambridge Analytiea had eerreet? Se this ineludes all the APIs that transmitted friend data? Hew many AF'ls were in this eategery? Is it true that all efthese AF'ls were "rarely used" at the time? Hew weuld yeu de?ne "rarely used"? These AF'ls were ?rst intredueed in EUUT. right. er at least by 201i]? Se mest efthese AF'ls had been areund fer at least feur and upte seven years at this time. right? And hew many develepers relied en these APls? Be it seems lil-te it's a pretty blEbEalaa?l?lfgWU'lE anneuneing here - is there a reasen it was buried in a ene line statement at the very end efan extremely leng anneuneement? I‘, FILE SAN MATEO COUNTV SEP 1 9 2015 Clerk or , QW' ‘ By bEPUI'YbUéaK OO\IO‘\ SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO \O SIX4THREE, LLC, a Delaware limited Case No. CIV533328 liability company, Plaintiff, v. FACEBOOK, INC., a Delaware corporation and DOES 1-50, inclusive Defendants. ORDER ON MOTION FOR 'ORDER COMPELLIN G FURTHER RESPONSES TO DEMAND FOR INSPECTION OF DOCUMENTS, COMPELLING PRODUCTION OF DOCUMENTS, AND FOR SANCTIONS Date: September 8, 2016 Time: 9:00 a.m. Dept.: Law and Motion KC V533328 0RD l Order7 llllllll\\\\\llllllllllllllllll [PROPOSED] ORDER ON MOTION TO COMPEL CASE NO. CIV533328 BG000510 Plaintiff Six4Three, LLC’s (“Six4Three”) Motion For Order Compelling Further Responses To Demand For Inspection Of Documents, Compelling Production Of Documents, And For Sanctions (the “motion”) came on regularly for hearing before the Court on September 8, 2016, in the Law and Motion Department. The Court, having reviewed the moving papers and all opposing and reply papers filed with the Court, and having heard the arguments of counsel, grants in part and denies in part the motion as follows: The motion is MOOT as to Document Requests Nos. 6, 7, 9, Subsequent to the filing of this motion, ll, l3, l4, 20, 21 and 22. on August 25, 2016, Defendant Facebook provided a 10 second supplemental response to the request for production, withdrawing some objections and 11 agreeing to produce additional documents [See Exhibit C attached to the declaration 12 Julie Schwartz]. To the extent this supplemental response modified their responses to these 13 requests, the motion is moot. The motion is DENIED 14 as to Requests Nos. 1, of counsel 2, 3, 4, 31 and 32 as Defendant Facebook 15 has agreed to provide responsive, non-privileged documents in response to these requests. [See 16 Exhibit F, attached to the Declaration of David Godkin.] As to privileged documents, Defendant 17 is to produce a privilege log in compliance with CCP §203 1.240. 18 The motion is DENIED as to Requests Nos. 17, 27 and 28. 19 The motion is GRANTED as to Requests 8, 12, 16. 20 The motion is GRANTED as to Requests Nos. 5, 10, 15, l8, 19, 23, 24, 25 and 26 subject 21 22 23 24 to a privilege log in compliance with CCP §203 l .240. The motion is GRANTED as to Requests Nos. 30, 33 [34 is not part of Plaintiffs motion] subject to a privilege log in compliance with CCP §2031.240. Defendant shall complete its production of documents within 45 days of the date of this 25 Order. On or before this 45-day time period expires, Defendant may seek relief from the Court. 26 The request for sanctions is denied, as the Court finds that Defendant acted with 27 substantial justification in responding to the Plaintiffs Request for Production 28 in opposing this Motion. of Documents and -1[PROPOSED] ORDER ON MOTION TO COMPEL CASE NO. CIV533328 BG000511 IT IS SO ORDERED. Dated: SEP 15 WW€ [M 2016 WRABLE JONATHAN KARESH Approved as t0 form by: PERKINS COIE LLP QM Q BAUM & GODKIN, LLP ,g/W. ‘QQ. Julie E. Schwartz Dillvid S. Godkin CM); -2[PROPOSED] ORDER ON MOTION TO COMPEL CASE NO. ClV533328 BG000512 ) J Basil P. Fthenakis, Esq. (88399) CRITERION I.AW 2225 E. Bayshore Road, Suite 200 Palo Alto, California 94303 Tel. (6s0) 352-8400 Fax. (650) 352-8408 4 Of counsel: 5 6 7 8 9 10 ll David S. Godkin (admittedpro hac vice) James Kruzer (admittedpro hac vice) BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, MA02210 (617) 307-6100 godkin@birnbaum godkin. com kruzer@birnbaumgodkin. com Attorneys for Plaintiff, SIX4TI{REE, LLC, a Delaware limited liability company t2 13 SUPERIOR COURT OF CALIFORNIA t4 COLINTY OF SAN MATEO l5 t6 t7 18 SIX4THREE, LLC, a Delaware limited liability company, Plaintift t9 20 2l FACEBOOK, INC., a Delaware corporation I through 50, inclusive and DOES Defendants. 22 643'S DISCOVERY PROPOSAL PURSUANT TO COURT'S DECEMBER 13,2016 oRDER ) ) ) ) ) ) ) ) ) ) ) ) HEARING DATE: n/a HEARING TIME: nla DEPARTMENT: Law and Motion FILING DATE: April 10,2015 TRIAL DATE: May 15,2017 REDACTED PUBLIC VERSION 23 24 25 26 27 28 1 Case No. CIV 533328 ó43 DISCOVERY PROPOSAL PURSI-JANI'TO COURT'S ORDEIì BG000513 Backgroundl 2 This case concerns a pattern ofbehavior undertaken by Defendant Facebook, Inc. a J 4 ("Facebook") over at least a seven-year period starting sometime around or after its decision to 5 launch a third-party developer platform ("Facebook Platform") and which amounts to a classic 6 "bait and switch" tactic barred by California law. Beginning around May 24,2007 and extending 7 until at least April 30,2014, Facebook engaged in a campaign of explicit promises, enticements 8 and representations with the specific aim of inducing third-party software developers 9 l0 ("Developers") like Plaintiff Six4Three, LLC ("643") to develop applications for Facebook ll Platform. As part of this deliberate campaign of inducement, Facebook made repeated t2 representations that Developers would have a level playing field, fair competition and l3 opportunity to build businesses, even ones that compete with Facebook's own applications. t4 As Facebook repeatedly promised, Facebook Platform would not preference Facebook 15 over other developers . 643 alleges that Facebook's campaign was part of a calculated strategy to 16 t7 drive Facebook's own growth by leveraging the hard work of Developers. Indeed, at the time l8 Facebook launched Facebook Platform, it had less than 25 million users. By 2014, once t9 Facebook had secured over 1.3 20 21 ,1 LL 23 billion users and cemented its position as a dominant global economy, Facebook decided it would prefer to no longer compete with Developers around certain types of applications, so it reversed course and broke its promise of equal access, fair competition, and the opportunity to build a business. This decision, announced on April 30, 2014 24 and implemented just one year later, made it impossible for certain Developers to recoup or 25 profit from their investments, while ensuring that Facebook exclusively reaps the benefits of 26 Developers' investments in certain applications on Facebook Platform. 27 28 rBecause Facebook declined to include 643's Final Proposal (attached as Exhibit 4 to the accompanying declaration) as part of a joint submission, the parties have filed their discovery proposals separately. Case No. CIV 533328 643 DISCOVEIIY PROPOSAL PURSUAN'f TO COURT'S ORDER BG000514 In an attempt to gain information regarding Facebook's bait and switch campaign,643 I 2 served First and Second Demands for Production of Documents (the "l)emands"), as well as J a other discovery requests. The Demands were the subject of motions to compel, On December 4 13, the Court ordered 643 atndFacebook to meet and confer regarding certain of the reqttests in 5 the Demands and, if no resolution could be achieved, to submit competing proposals for the 6 Court's consideration. The Court specifìcally asked the parties to work together to achieve two 7 8 goals related to the ongoing disputes regarding the timeframes and custodians for 643's 9 document requests: (1) permit 643 to obtain the documents necessary to find evidence in support l0 of the causes of action in its Second Amended Complaint (SAC), as the Court stressed that all of ll 643's requests are indeed relevant to the allegations in its SAC; and (2) balance 643's discovery t2 needs against the burden to Facebook in complying with these discovery requests. l3 Based on the Court's order, the parties conducted a telephonic meet and confer on t4 l5 December 15 and continued their discussion in subsequent emails. 643 refined and narrowed its t6 requests based on these discussions and, on December 29,2016, submitted an initial request-by- l7 request proposal to Facebook ("Original Proposal"). See l8 Exhibit I to Declaration of James E. Kruzer ("Kruzer Decl.") Reiterating its position from the December l5 meet and confer and it 19 December 22 email, Facebook, on January 10, stated that it was not willing to offbr a competing 20 2l proposal and considered the documents it had previously produced from eight low-level 11 LL employees to which 643 never agreed as custodians to be sufficient. See Kruzer Decl., Exhibit 2. 23 Further, on January 9, Facebook responde d to 643 with a request-by-request hit count suggesting 24 that the total number of documents under 643's requests would exceed 800,000. See Kruzer 25 Decl., Exhibit 3. As a result, and based upon 643's review of Facebook's initial production, 643 26 dramatically revised its proposal to withdraw I 5 of the 26 requests entirely 27 - over half of the 28 J Case No. CIV 533328 643 DISCOVERY PROPOSAL PURSUANI"IO COUR'f 'S ORDER BG000515 total requests - and significantly limit the timeframes and custodians for the remaining I I 2 requests ("Final Proposal"), See Kruzer Decl., Exhibit 4. Facebook has offered a shifting-sands explanation as to the breadth and burden 643's 3 4 proposals would impose. On January 17, Facebook notified 643 that its Final Proposal would 5 result in at leasf 800,000 documents, and that 643's Original Proposal would have likely 6 produced less than 200,000 documents. See Kruzer Decl., Exhibit 5. 643 has asked Facebook to 7 8 9 explain the reason for Facebook's changing estimates but, as of this filing, these discrepancies remain inexplicable. On January 19,643 responded that if its Original Proposalwould have l0 produced less than 200,000 documents, then why did Facebook tell the Court it would result in ll millions of documents and suggest to 643 that it would result in over 800,000 documents, which t2 led to the Court's meet and confer order in the first place? See Kruzer Decl., Exhibit 6. Further, 13 t4 l5 why did Facebook not tell 643 its Original Proposal would have resulted in less than 200,000 documents after 643 submitted the Original Proposal, as the Court requested Facebook to do? t6 The fact that Facebook withheld this infbrmation and the fact that it differs dramatically from t7 what Facebook previously stated to both the Court and 643 calls into serious question l8 Facebook's argument around the burden it bears in this production. t9 In Facebook's January 17 email, Facebook also attempted to argue that 643 is seeking to 20 2t increase the total custodians for this document production to 20. See Kruzer Decl., Exhibit 5. 11 z. /. 643 notified Facebook on January l9 that this is inaccurate, For the avoidance of doubt,643 is 23 seeking a total of seven custodians, one of which it is only seeking documents from a six month 24 period (Mr. Taylor for Request No. 66). See Kruzer Decl., Exhibit 6, 643's proposal does not 25 entail adding these custodians to the eight proposed by Facebook, but instead replacing 26 Facebook's proposed custodians with these individuals. Rather than increasing the number of 27 28 custodians to 20, 643's proposal reduces the number of custodians by one (from eight to seven). 4 Case No. CIV 533328 643 DISCOVERY PROPOSAL PURSUANT TO COURT'S ORDER BG000516 I It was Facebook, not 643, that chose to search the files of eight low level employees, presumably ) in an attempt to avoid producing the most relevant documents in this dispute' 643 has not asked J Facebook to search the requests under consideration in this meet and confer using the eight 4 custodians proposed by Facebook, and 643 cannot be faulted for Facebook's decision to do so. 5 643 further notifred Facebook in that letter that it now seems that Facebook estimates the 6 total number of hits for 643's Original Proposal, which consists of eight custodians over 23 7 8 9 requests spanning 2007 to 2015, to be less than 200,000 documents; and yet, somehow, 643's Final Proposal, which calls for seven custodians over I I requests from 2010 to 2015, produces 6. 643 remains incredulous that a proposal which l0 over 800,000 hits. See Kruzer Decl., Exhibit 1l reduces the number of custodians, narrows the timeframe by over three years and reduces the t2 document requests by more than half could result in more than four times the number of l3 t4 l5 t6 t7 l8 19 documents. Even accepting Facebook's argument that eliminatinga few of the requests do not mitigate Facebook's burden, it simply defies explanation that an overall reduction of this magnitude will produce more documents. 1'he explanation of this discrepancy most favorable to Facebook is that the has generated are merely estimates (as they are not exact nor subject to Boolean favorable is that Facebook has interpreted this number in ways which hit results it logic)' The least will prohibit 643 from 20 2l accessing information in possession of the custodians proposed by 643 necessary to establish the 22 elements of 643's causes of action. Under either scenario, there can be no doubt that this 23 information is highly relevant and that it cannot be obtained from the eight custodians proposed 24 25 by Facebook. Based on 643's review of Facebook's initial discovery, it is abundantly clear that there is 26 no discussion among these custodians aroundwhether to shut down Graph API, which is the 27 28 crucial issue in 643's SAC, However, there is ample discussion showing that the 5 Case No. CIV 533328 643 DISCOVItrRY PROPOSAL PURSUANT TO COURl"S ORDEIì BG000517 decision whether to shut down Graph API was made by the custodians proposed by 643 in its 1 2 Final Proposal.643 has taken every reasonable measure to reduce the burden imposed on J Facebook, and 643 is entitled to this critical information at the heart of its SAC, As such, 643 4 respectfully requests that the Court order Facebook to produce documents in accordance with 5 643's Final Proposal no later than February 15,2017. 6 643's Fin4l Pror¡osal 7 643's review of Facebook's initial production clearly demonstrates that none of the eight 8 9 custodians2 provided by Facebook participated in the decision-making process to shut down I April 30,2015.4 l0 Isoftware il 643's review of Facebook's initial production also clearly reveals the identities of the decision- l2 l3 businesses with the implementation of Graph API2.03 on makers and rough timeframes under which the decision at the heart of 643's SAC was made' As such, 643 was able to narrow its requests substantially in order to mitigate the burden on 14 l5 Facebook on the condition that643 was able to find evidence of the decision at the heart of its 16 SAC, which concerned the decision to shut down data access to competitive applications and the t7 decision to manufacture a narrative to mask this monopolistic behavior. 18 l9 Therefore, 643's Final Proposal conditionally agrees to withdraw l5 Requests (Nos, 5, 25,35,41,47,48,50,51,52,57,58,59,62,64,7}),whichshoulddramaticallyreduce 20 2l 22 23 Facebook's burden in document production. However, Facebook's initial production provides indisputable evidence that the relevant custodians for Request Nos. 36,39, 40, 49,68, and 69 ate not in fact the individuals proposed by Facebook. It is abundantly clear from Facebook's 24 25 26 27 The eight custodians provided by Facebook include: Allison Hendrix, Policy Manager; Eddie O'Neil (Product Manager); Simon Cross (Product Manager); Neha Jogani (Product Marketing); Konstantinos Papamiltiadis (Stratðgic Pa¡tner Manager); Tera Randall (Technology Communications Manager); Johanna Peace (Technology Communications Manager); Rob Sherman (Manager of Privacy and Public Policy)' 3 Note that Graph API 2.0 was often described internally as Platform 3, Platfom 3.0, P3, Platform Simplification, PSl2n, or login v4 2 28 Kruzer Case No. CIV 533328 643 DISCOVEIìY PROPOSAL PURSUAN'I TO COURT'S ORDER BG000518 I 2 production that the deceptive, anti-competitive and fraudulent scheme alleged by 643 in its SAC was spearheaded by Mark Zuckerberg (CEO) sometime prior to October 2012 and involved at a J least the following additional individuals: Sam Lessin (VP Product Management), Chris Cox 4 (Chief Product Officer), Javier Olivan (VP Growth), Michael Vernal (VP Engineering), and Ilya 5 Sukhar (Head of Developer Products). 6 The decision and its rationale were then communicated to the next layer of management, 7 8 9 including Douglas Purdy (Director of Engineering), Constantin Koumouzelis (Product Manager), Dan Rose (VP Partnerships and Platform Marketing), Ime Archibong (Director, Strategic 10 Partnerships), Monika Bickert (Head of Global Policy Management), Justin Osofsky (Director, ll Platform Operations) and others, from lafe2012 through the middle of 2013. Finally, as a general t2 matter, the eight individuals Facebook offered as custodians did not participate in implementing l3 t4 l5 the decision until mid-to-late 2013.In short, the eight custodians provided by Facebook were partly responsible for implementing and addressing the repercussions of a decision, which lies at t6 the hearl of 643's SAC, made by individuals who were at least two layers of management above t7 them. 18 Therefore, 643 proposes that Facebook produce all responsive documents related to t9 Request Nos. 36, 39,40,49,68, and 69 spanning September l,20ll through April 30, 2015 20 21 using all agreed upon search terms on six custodians: Mark Zuckerberg, Sam Lessin, Chris Cox, 22 Javier Olivan, Michael Vernal, and Ilya Sukhar. Additionally,643 believes that Facebook has 23 met its burden as relates to Request Nos, 42 and 43 with one exception: none of the automated 24 emails Facebook sent to Developers notiffing them of the deprecation of Graph API were 25 included in Facebook's production. It is imperative that 643 is able to establish a timeline around 26 when Facebook provided notice to various developers, and therefore requests that Facebook 27 28 7 Case No. CIV 533328 643 DÍSCOVERY PROPOSAI. PURSUANT TO COUR' 'S ORDER BG000519 I 2 supplement its production to include all automated notices to Developers spanning the period April 30, 2014 to April 30, 2015. Further, 643 proposes narrowing Request Nos. 56, 61 and 63 to the period January J 4 5 2007 to July I ,2007 with l, Mr. Zuckerberg as the sole custodian and using search terms proposed by Facebook and agreed upon by the parties that are relevant for obtaining the requested 6 information. Finally, 643 proposes narrowing Request Nos. 65 and 66 to the period January l, 7 I 9 2010 to July 1 ,2010 with Mr. Zuckerberg as custodian for Request No. 65 and Mr. Taylor as custodian for Request No. 66s, and using search terms proposed by Facebook and agreed upon by l0 the parties that are relevant for obtaining the requested information, These proposed timeframes ll and custodians for Request Nos. 56, t2 61,63,65 and 66 should result in a substantial reduction in burden, particularly since the timeframes have been reduced to six month windows in each case, l3 t4 l5 a substantial reduction 643's Review of Face 6430s Final Proposal. t6 from the original requests. kts Production to Date Provides Amnle J for Adontins In addition to reducing dramatically Facebook's burden in production going forward, 643 t7 l8 has found ample cause for proceeding with this narrowed discovery under its proposed terms. l9 Facebook's production to date provides clear evidence that Mr. Zuckerberg was directly 20 responsible for the decisions at the heart of 643's SAC and as a general matter directly oversaw 2l all strategic decisions related to data access on Facebook Platform.6 22 23 24 25 26 5 27 28 Case No. CIV s33328 643 DISCOVERY PI{OPOSAL PURSUANl'1'O COUR'I'S ORDER BG000520 I 2 J 4 5 6 7 8 9 I 10 11 l2 l3 l4 l5 t6 t7 18 19 20 2l 22 ZJ 24 25 26 27 28 Case No. CIV 533328 643 DISCOVERY PROPOSAL PURSUANl'TO COLJRT'S ORDER BG000521 I 2 a J 4 5 6 7 8 9 l0 ll l2 l3 t4 15 t6 17 r8 t9 20 Irucebook' 2l 11 23 24 25 26 27 28 t0 Case No, CIV 533328 643 DISCOVERY PROPOSAL PURSUANT TO COURT'S ORDER BG000522 IAugust I 2 â J 4 5 6 7 8 9 10 1l 12 13 l4 l5 16 17 l8 l9 20 2l 22 23 24 25 26 27 r 28 ll Case No. CIV 533328 643 DISCOVEIìY PROPOSAL PURSUANI'1'O COLJRT'S ORDER BG000523 I 2 J 4 5 6 7 I 9 l0 11 t2 t3 l4 l5 t6 l7 l8 t9 20 2l 22 23 24 25 26 27 28 t2 Case No. CIV 533328 643 DISCOVERY PROPOSAI. PURSUANT TO COURT'S ORDER BG000524 I 2 a J 4 5 6 7 8 9 l0 ll t2 13 t4 15 t6 t7 l8 19 20 21 22 23 24 25 26 27 28 13 Case No. CtV 533328 643 DISCOVERY PROPOSAL PURSUANT'lO COURT'S OR DER BG000525 I 2 3 4 5 6 7 8 9 10 ll l2 l3 t4 l5 t6 t7 18 19 20 2l 22 23 24 25 26 27 28 t4 Case No. CIV 533328 643 DISCOVERY PROPOSAL PURSUAN'l'TO COUR1''S ORDER BG000526 I 2 a J 4 5 6 7 8 9 10 ll t2 l3 t4 l5 t6 r7 l8 t9 20 2l 22 23 24 25 26 27 28 8 The "Experimental API", also known internally as the "Bet-a API", was. announced publicly on as paft of the Glaph API 2.0 announcement as the "Extended APl" and goes by that name now. Case No. CIV 533328 643 DISCOVERY PIìOPOSAL PURSUANT 1'O COUR'I'S ORDER April 30,2014 BG000527 I 2 J 4 5 6 7 8 9 l0 1l 12 l3 14 15 t6 t7 18 t9 flzuckerber 20 2l 22 23 24 25 26 27 28 t6 Case No. CIV 533328 643 DISCOVERY PROPOSAL PURSUANT TO COUR'I"S ORDER BG000528 1 2 J 4 5 6 7 I 9 l0 ll t2 13 t4 l5 t6 17 18 l9 20 2l 22 23 24 25 26 27 28 t7 Case No. CIV 533328 ó43 DISCOVERY PROPOSAt. PURSUANT'IO COUR'I'S ORDER BG000529 I 2 J 4 5 6 7 8 9 10 l1 l2 t3 r 14 l5 t6 t7 18 t9 20 2t 22 23 24 25 26 27 28 l8 Case No. CIV 533328 643 DISCOVETìY PROPOSAL PURSUANT TO COUIìT'S OIìDËR BG000530 I Conclusion 2 These examples make clear beyond any shadow of doubt that Mr, Zuckerberg, Mr. J 4 Lessin, Mr.Cox, Mr. Olivan, Mr. Vernal and Mr. Sukhar held discussions and meetings 5 beginning sometime in late 201I until the closing of Graph API in April 30,2015 that are highly 6 likely to lead to evidence that supports the causes of action in 643's SAC, including the decision 7 8 9 to close Graph API and the decision to manufacture an internal and public narrative to mask what software companies and likely are clearly monopolistic motivations to shut down t0 many more. These discussions around whether and why to close Graph API, which caused 643's ll business to shut down, are atthe heart of 643's SAC. 643 must be permitted to access this t2 information to establish the elements of its causes of action. For the foregoing reasons, we ask l3 t4 l5 t6 that the Court grant 643's F'inal Proposal, particularly in light of the fact that 643 has withdrawn l5 ofthe 26 requests in order to address the Court's concerns around Facebook's burden of production. t7 l8 l9 20 2t 11 23 24 25 26 27 28 19 Case No. CIV 533328 ó43 DISCOVERY PROPOSAI- PURSUANT TO COUIìT'S ORDER BG000531 îi I : l)r¡lcrl: .l¡tnu¿rn l(). 2lll7 CRI]'Df{ION I"AW .l .{ rsltìNll^tJM & coDKlN. l,l.P 5 (r By: Irthenakis, Esq. llasil David S. Codkin (admitted pr 12 Laura Miller 217 Leidesdorff Street San Francisco, CA 94lll P (415) 376 - 6427 Attorney for Defendant FACEBOOK,INC. t6 I declare under penalty of perjury under the laws of the State of California that the above D uri e 13 14 17 . is true and comect. Executed January 20,2017, at Boston, Massachusetts t8 ,y''¡ t9 / 20 Cheryl A 2l 11 LL 23 24 25 26 27 28 2l Case No. CIV 533328 643 DISCOVËRY PÍìOPOSAI. PL,RSUANT 1'O COURI"S ORDER BG000533 06/22/2016 WED 15~ 36 FAX Br:·~·--uM ~003/006 6' GODKIN FILE)} SAN MATEO COUNTY 2 o;;;. 3 4 5 DEPUTY Cf.ERK 6 7 1/\ 0 ~0 /\\JJ 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 SIX4THREE1 LLC, a Delaware limited liability company, 12 13 14 15 16 Plaintiff, . v. FACEBOOK1 INC,) a Delaware corporation and DOES 1-50, inclusive Case No. CIV533328 [Nt61'0SEBJ ORllER ON DEMUH.JU~R TO Pl..AINTIFF'S S.1!1COND AMJ~NJ>ltD COMPLAINT Date: June 15, 2016 Time: 9:00 a.m. Dept.: Law and Motion Defendants. 17 18 19 20 21 22 CIV533328 ORD · Order 95562 23 24 :, 1111111111111111111111111111111111111111 25 26 27 ' 28 [PROPOSm)] 0RD1m ON I>BMURRER TO Pl.A lNTIFF'S SECOND AMENDm'.HY5MPLAINT CASE NO. CIV53332S BG000534 06/22/2016 WED 15: 36 FAX lt!004/006 Br-----;M & GODKIN 2 Defendant Facebook, Ino.'s ("Facebook'') Demurrer to Plaintiff Six4Three, LLC's Second J Amended Complaint came on regularly for hearing before the Coun on June 15, 2016, in the Law 4 and Motion Department. 5 The Coul't, having reviewed the moving papers and all opposing and reply papers filed 6 with the Court, and having heard the arguments of counsel, OVERRULES Facebook's Demurrer 7 with respect to Plaintiff',s First, Third, Fourth and Fifth Causes of Action, and SUSTAINS 8 Facebook's Demutter with respect to Plaintiffs Second Cause of Action. The Court modifies its 9 June 14, 2016 tentative ruling, as follows: Defendaat Facebook, Inc. 's Request for Judicial Notice is GRANTED 10 11 pursuant to Evidence Code §452(h) and 453(a). However, the legal effect, 12 truthfulness and proper .interpretation of the documents remain disputable. See 13 Unruh-Haxton v. Regentrr of University o/CalifornJa (2008) 162 Cal App 4th 343, 14 365. A hearing on a demurrer may not be turned into a conteslecl evidentiary 15 hearing through the guise of having the court take judicial notice of documents 16 whose truthfulness or proper interpretation are disputable. Fremont Indemnity Co. 17 v. Fremont General Corp. (2007) 148 Cal App 4th 97, 112-118. The demun·er to the 1st cause of action for Violation of B&P Code 17200 18 19' is OVERRULED. Plaintiff has sufficiently pied an unfair; unlawful or fraudulenl 20 business practice. Ce/ ..Tech Communications, Inc. v. Los Ange/es Cellular 21 Telephone Company ( 1999) 20 Cal 4th 163, 180. Plaintiff has specifically allel'ed , 22 that it was a victim to a Facebook practice/scheme to lure in developers, generate 23 additional advertising revenue by enhancing the user's expei·ience and. then 24 monopolize for itself the market for image search capabilities. SAC~, S4-59 1, 25 105-06. 26 27 28 The demunet to the 2nd oause of action for promissory estoppel is SUSTAlNED WITHOUT LEA VE TO AMEND. The SAC fails to sufficiently \ -l- [PROP.osrmr6IB5IDf<5ITT5YiFiTU~llElff()PG\1~Nf.F'S sncoND AMl~Nl>BD COMPJ,AINT CASE NO. CIV53332ll BG000535 06/22/2016 WED 15i36 ~005/006 FAX I I allege a clear, unambiguous promise by Facebook or the Plaintiff's reasonable 2 reliance on such a promise. The SAC is based on the allegations a.t ~52 that 3 Facebook had a long-term commitment to the Facebook platform and to a level 4 playing field for developers. Plaintiff has not alleged a clear and unambiguous 5 promise to keep open the Friends' Photos Endpoint. As to reliance, Plaintiff 6 identifies only conclusory, generalized statements and alleged omissions 7 regarding Facebook's platform and API at the time they were launched in 2007 8 and 2010. SAC ii 10"23. This was well before Plaintiff became a i·egistered 9 developer with Face book in Decerube1· 20 l 2. Nothing in the statements referred to 10 the friends' photo endpoint and nothing indicated that Facebook wo.uld make 11 availab.le all endpoints to developers forever. This does not sufficiently allege 12 roasonable reliance. 13 The demurrer to the 3rd cause of action for negligent misrepresentation ls 14 OVERRULED, The SAC sufficiently alleges the elements of a claim for IS negligent mlsrei:iresentation. These include 1) A m~srepresentation of a past or 16 e>i:isting fact, 2) without reasonable grounds for believing it to be true, 3) with the 17 intent to induce another's reliance, 4) justifiab.le reliance on the representation and 18 5) resulting damage. Apollo Capital Fimd, LLC v. Roth Capital Partners, LLC 19 (2007) 158 Cal App 4th 226, 243. Plaintiff has sufficiently alleged a 20 misrepresentation, intent, andjL1stifiable reliance. Plaintiff has sufficiently 21 alleged such a representation and plaintiffs reliance on a promise is reasonable. 22 Th4! derntirrer to the 4th cause of action for Intentional Interference with 23 Contract is OVERRULED. Plaintiff has sufficiently alleged tortious interference. 24 Plaintiff ~as pied a valid contract; has plausibly alleged knowledge of the 25 agreements on Facebook's part and has alleged intentional acts designed to induce 26 a breach. Quelimane Co., Inc. v. Stewart Title Guaranty Company (1998) l 9 Cal 27 4th 26 1 55. See SAC at~[~] 86, 87, 148-49. 28 -2- [PROfiOSrID] ORDER ON DEMUJ{RER 'to PLAIN'J'IJIJ'•''S ~l~COND AMtlNDBD eOMPl..AINT / CASE NO. CJV533J28 BG000536 - 06/22/2016 WED 15: 36 FAX BI:f"~'",~.IJM & GODKIN \ /../ L ilJ006/006 "'-, j The demurrer to the Sth cause of action for Intentional Interference with 2 Prospective Busi11es9 Relations is OVERRULED. The cause of action sufficiently J pied the required elements for such a cause of action: 1) an economic relationship · 4 betweenthe plaintiff and some third-party with the probability of future economic 5 benefit; 2) the defendant's knowledge of the relationship; 3) intentional acts by 6 defendant designed to disrupt the relationship; 4) actual disruption of the 7 relationship and 5) economic harm to the plaintiff proximately caused by 8 defendant. Korea Supply Co. v, Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 9 1153. 10 11 12 ) IT IS SO ORDERED. Dated: JUN 2 8 2016 13 14 Approved os to form by: 15 PERKINS COIE LLP 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- / .•. -- [1i1(0lSOStlDJ OIH5ITif'O'N f)LtMORJrnli TO l)LAINT111fii~rsllt!OND AMENDL~I~ COMPl.AINT CASE NO. ClV533328 BG000537 1 2 3 4 5 6 7 8 9 10 11 David P. Chiappetta, Bar No. 172099 DChiappetta@perkinscoie.com PERKINS COIE LLP 505 Howard St., Suite 1000 San Francisco, CA 94105-3204 Telephone: 415.344.7000 Facsimile: 415.344.7050 Julie E. Schwartz, Bar No. 260624 JSchwartz@perkinscoie.com Lauren B. Cohen, Bar No.285018 LCohen@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350 Attorneys for Defendant Facebook, Inc. 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SAN MATEO 14 15 16 17 18 19 20 SIX4THREE, LLC, a Delaware limited liability company, Plaintiff, v. FACEBOOK, INC., a Delaware corporation and DOES 1-50, inclusive, Case No. CIV533328 DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL OBJECTIONS AND RESPONSES TO PLAINTIFF SIX4THREE, LLC’S FIRST SET OF DEMANDS FOR INSPECTION OF DOCUMENTS Defendant. 21 22 23 24 25 26 27 28 Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000538 1 PROPOUNDING PARTY: PLAINTIFF SIX4THREE, LLC 2 RESPONDING PARTY: DEFENDANT FACEBOOK, INC. 3 SET: ONE 4 Defendant Facebook, Inc. (“Facebook”) hereby objects and responds as follows to the 5 First Set of Demands for Inspection of Documents (“Requests for Production”) propounded by 6 Plaintiff Six4Three, LLC (“Plaintiff”). 7 8 GENERAL OBJECTIONS AND LIMITATIONS Each and every Request for Production (“Request”) is subject to the General Objections 9 and Limitations set forth herein (“General Objections”), in addition to the specific objections and 10 limitations set forth in the respective responses. The General Objections and limitations form part 11 of the response to each Request for Production and are set forth to avoid duplication for each 12 response. Facebook makes the following General Objections to each Request for Production: 13 1. Facebook objects to the Requests for Production to the extent they seek the content 14 of communications of Facebook users on the grounds that the federal Stored Communications 15 Act, 18 U.S.C. §§ 2701, et seq., (“SCA”) prohibits service providers such as Facebook from 16 disclosing the contents of electronic communications in electronic storage or that are carried or 17 maintained on a remote computing service. 18 2. Facebook objects to the Requests for Production to the extent they seek records 19 and information subject to the SCA, pertaining to users of Facebook’s services, who should be 20 provided with notice and an opportunity to object prior to the disclosure of any reasonably 21 available basic subscriber information. 22 3. Facebook objects to the Requests for Production to the extent that they seek 23 documents that Facebook is legally or contractually prohibited from disclosing, including 24 documents that would require Facebook to breach a confidentiality contract, protective order, 25 settlement, or other duty to a third party to maintain confidentiality. 26 27 4. Facebook objects to the Requests for Production to the extent they are unduly burdensome and oppressive in the context of this action. 28 -1Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000539 1 5. Facebook objects to the Requests for Production to the extent they call for the 2 production of documents protected by the attorney-client privilege, the settlement privilege, the 3 work-product doctrine, or any other applicable privilege. Such documents will not be provided in 4 response to the Requests for Production, and any inadvertent production thereof shall not be 5 deemed a waiver of any privilege with respect to such documents, or of any work-product 6 doctrine protections attaching to such documents. 7 6. Facebook objects to the Requests for Production to the extent they require the 8 disclosure of documents containing proprietary or confidential information, trade secrets, or 9 information that may implicate third-party privacy rights. Facebook will not produce any such 10 11 12 13 documents in the absence of the entry of a suitable protective order. 7. Facebook objects to the Requests for Production to the extent they are vague, ambiguous, unintelligible, overly broad, or harassing. 8. Facebook objects to the Requests for Production to the extent they seek documents 14 that are not relevant to the subject matter of this action, nor reasonably calculated to lead to the 15 discovery of admissible evidence. 16 9. Facebook objects to the Requests for Production to the extent they seek documents 17 and things not within the possession, custody, or control of Facebook. An objection on this 18 ground does not constitute a representation or admission that such documents do in fact exist. 19 10. Facebook objects to the Requests for Production to the extent they seek documents 20 already in Plaintiff’s possession, custody, or control, or that can be obtained by Plaintiff with 21 equal burden or expense, or directly from Facebook user(s). 22 11. Facebook objects to the Requests for Production, the instructions, and the 23 definitions to the extent they seek to impose obligations upon it beyond those required or 24 permitted by the California Code of Civil Procedure. 25 12. Facebook objects to the definitions of “DOCUMENTS” and 26 “COMMUNICATIONS” to the extent they impose any obligations with respect to the production 27 of electronically stored information that are different from or in addition to those imposed by the 28 California Code of Civil Procedure. Facebook further objects to these definitions to the extent -2Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000540 1 that they include electronically stored information that is (1) not reasonably accessible by 2 Facebook because of undue burden or expense; (2) obtainable from another source that is less 3 burdensome, expensive or more convenient; and/or (3) unreasonably cumulative or duplicative, or 4 where the likely burden or expense of producing the electronically stored information outweighs 5 the likely benefit. 6 13. Facebook objects to the definitions of “FACEBOOK, “DEFENDANT,” “YOU,” 7 and “YOUR” on the grounds that they are overbroad and call for information covered by the 8 attorney-client and work product privileges. 9 14. All of the following responses are based solely upon such information that is 10 presently available and specifically known to Facebook. Thus, Facebook’s responses are made 11 without prejudice to Facebook’s right subsequently to add, modify, or otherwise change or amend 12 these responses. Accordingly, Facebook reserves the right to change any of its objections and/or 13 responses to the Requests for Production as new information is discovered. Furthermore, 14 Facebook specifically reserves the right to: 15 16 17 18 19 20 a. introduce other information, documents, and things in this action that it may discover or upon which it may come to rely; b. use documents or things that it may later determine to have been responsive to the Requests; and c. revise, correct, supplement, or clarify any of its written responses at any time. The foregoing General Objections are hereby incorporated into each and every 21 objection/response below. Subject to, preserving, and without waiving, the General Objections, 22 Facebook responds as follows: 23 DOCUMENT REQUEST NO. 1: 24 25 26 All DOCUMENTS AND COMMUNICATIONS CONCERNING 643. RESPONSE TO DOCUMENT REQUEST NO. 1: Facebook incorporates each of the General Objections as if they were stated in full and 27 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 28 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) -3Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000541 1 calls for information covered by the attorney-client and work product privileges; (4) calls for 2 confidential information in the absence of the entry of a suitable protective order; (5) seeks 3 documents that are not relevant to the subject matter of this litigation and not reasonably 4 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 5 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 6 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 7 prohibited from producing under the SCA. 8 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 1: 9 Facebook incorporates each of the General Objections as if they were stated in full and 10 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 11 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 12 CONCERNING 643”; (3) calls for information covered by the attorney-client and work product 13 privileges; (4) calls for confidential information in the absence of the entry of a suitable protective 14 order; (5) seeks documents that are not relevant to the subject matter of this litigation and not 15 reasonably calculated to lead to the discovery of admissible evidence; (6) seeks information 16 equally available to Plaintiff; and (7) seeks the content of electronic communications that 17 Facebook is prohibited from producing under the SCA. 18 Subject to and without waiving the foregoing objections, Facebook will produce 19 responsive, non-privileged documents that it locates, if any, after a reasonable search. 20 DOCUMENT REQUEST NO. 2: 21 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 22 approval of 643 as a DEVELOPER. 23 RESPONSE TO DOCUMENT REQUEST NO. 2: 24 Facebook incorporates each of the General Objections as if they were stated in full and 25 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 26 requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 27 DOCUMENTS AND COMMUNICATIONS”; (4) calls for information covered by the attorney- 28 client and work product privileges; (5) calls for confidential information in the absence of the -4Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000542 1 entry of a suitable protective order; (6) seeks documents that are not relevant to the subject matter 2 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (7) 3 seeks information equally available to Plaintiff; (8) is premature as Facebook’s Demurrer to 4 Plaintiff’s Complaint is not due until September 8, 2015; and (9) seeks the content of electronic 5 communications that Facebook is prohibited from producing under the SCA. 6 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 2: 7 Facebook incorporates each of the General Objections as if they were stated in full and 8 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 9 requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 10 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s approval…”; (4) 11 calls for information covered by the attorney-client and work product privileges; (5) calls for 12 confidential information in the absence of the entry of a suitable protective order; (6) seeks 13 documents that are not relevant to the subject matter of this litigation and not reasonably 14 calculated to lead to the discovery of admissible evidence; (7) seeks information equally available 15 to Plaintiff; and (8) seeks the content of electronic communications that Facebook is prohibited 16 from producing under the SCA. 17 Subject to and without waiving the foregoing objections, Facebook will produce 18 responsive, non-privileged documents that it locates, if any, after a reasonable search. 19 DOCUMENT REQUEST NO. 3: 20 21 22 All DOCUMENTS AND COMMUNICATIONS CONCERNING the APP. RESPONSE TO DOCUMENT REQUEST NO. 3: Facebook incorporates each of the General Objections as if they were stated in full and 23 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 24 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 25 calls for information covered by the attorney-client and work product privileges; (4) calls for 26 confidential information in the absence of the entry of a suitable protective order; (5) seeks 27 documents that are not relevant to the subject matter of this litigation and not reasonably 28 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available -5Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000543 1 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 2 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 3 prohibited from producing under the SCA. 4 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 3: 5 Facebook incorporates each of the General Objections as if they were stated in full and 6 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 7 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 8 CONCERNING the APP”; (3) calls for information covered by the attorney-client and work 9 product privileges; (4) calls for confidential information in the absence of the entry of a suitable 10 protective order; (5) seeks documents that are not relevant to the subject matter of this litigation 11 and not reasonably calculated to lead to the discovery of admissible evidence; (6) seeks 12 information equally available to Plaintiff; and (7) seeks the content of electronic communications 13 that Facebook is prohibited from producing under the SCA. 14 Subject to and without waiving the foregoing objections, Facebook will produce 15 responsive, non-privileged documents that it locates, if any, after a reasonable search. 16 DOCUMENT REQUEST NO. 4: 17 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 18 approval of the APP. 19 RESPONSE TO DOCUMENT REQUEST NO. 4: 20 Facebook incorporates each of the General Objections as if they were stated in full and 21 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 22 requests; (2) is vague and ambiguous; (3) is vague and ambiguous as to the term “approval”; (4) 23 is overly broad and unduly burdensome in seeking “all DOCUMENTS AND 24 COMMUNICATIONS”; (5) calls for information covered by the attorney-client and work 25 product privileges; (6) calls for confidential information in the absence of the entry of a suitable 26 protective order; (7) seeks documents that are not relevant to the subject matter of this litigation 27 and not reasonably calculated to lead to the discovery of admissible evidence; (8) seeks 28 information equally available to Plaintiff; (9) is premature as Facebook’s Demurrer to Plaintiff’s -6Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000544 1 Complaint is not due until September 8, 2015; and (10) seeks the content of electronic 2 communications that Facebook is prohibited from producing under the SCA. 3 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 4: 4 Facebook incorporates each of the General Objections as if they were stated in full and 5 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 6 requests; (2) is vague and ambiguous; (3) is vague and ambiguous as to the term “approval”; (4) 7 is overly broad and unduly burdensome in seeking “all DOCUMENTS AND 8 COMMUNICATIONS CONCERNING FACEBOOK’S approval…”; (5) calls for information 9 covered by the attorney-client and work product privileges; (6) calls for confidential information 10 in the absence of the entry of a suitable protective order; (7) seeks documents that are not relevant 11 to the subject matter of this litigation and not reasonably calculated to lead to the discovery of 12 admissible evidence; (8) seeks information equally available to Plaintiff; and (9) seeks the content 13 of electronic communications that Facebook is prohibited from producing under the SCA. 14 Subject to and without waiving the foregoing objections, Facebook will produce 15 responsive, non-privileged documents that it locates, if any, after a reasonable search. 16 DOCUMENT REQUEST NO. 5: 17 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 18 decision to open FACEBOOK PLATFORM to DEVELOPERS. 19 RESPONSE TO DOCUMENT REQUEST NO. 5: 20 Facebook incorporates each of the General Objections as if they were stated in full and 21 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 22 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 23 calls for information covered by the attorney-client and work product privileges; (4) calls for 24 confidential information in the absence of the entry of a suitable protective order; (5) seeks 25 documents that are not relevant to the subject matter of this litigation and not reasonably 26 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 27 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 28 -7Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000545 1 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 2 prohibited from producing under the SCA. 3 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 5: 4 Facebook incorporates each of the General Objections as if they were stated in full and 5 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 6 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 7 CONCERNING FACEBOOK’s decision…”; (3) calls for information covered by the attorney- 8 client and work product privileges; (4) calls for confidential information in the absence of the 9 entry of a suitable protective order; (5) seeks documents that are not relevant to the subject matter 10 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) 11 seeks information equally available to Plaintiff; and (7) seeks the content of electronic 12 communications that Facebook is prohibited from producing under the SCA. 13 DOCUMENT REQUEST NO. 6: 14 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 15 announcement CONCERNING opening FACEBOOK PLATFORM to DEVELOPERS, 16 INCLUDING any such announcement on or about June 1, 2007. 17 RESPONSE TO DOCUMENT REQUEST NO. 6: 18 Facebook incorporates each of the General Objections as if they were stated in full and 19 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 20 requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 21 DOCUMENTS AND COMMUNICATIONS”; (4) calls for information covered by the attorney- 22 client and work product privileges; (5) calls for confidential information in the absence of the 23 entry of a suitable protective order; (6) seeks documents that are not relevant to the subject matter 24 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (7) 25 seeks information equally available to Plaintiff; (8) is premature as Facebook’s Demurrer to 26 Plaintiff’s Complaint is not due until September 8, 2015; and (9) seeks the content of electronic 27 communications that Facebook is prohibited from producing under the SCA. 28 -8Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000546 1 2 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 6: Facebook incorporates each of the General Objections as if they were stated in full and 3 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 4 requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 5 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s announcement 6 CONCERNING opening FACEBOOK PLATFORM…”; (4) calls for information covered by the 7 attorney-client and work product privileges; (5) calls for confidential information in the absence 8 of the entry of a suitable protective order; (6) seeks documents that are not relevant to the subject 9 matter of this litigation and not reasonably calculated to lead to the discovery of admissible 10 evidence; (7) seeks information equally available to Plaintiff; and (8) seeks the content of 11 electronic communications that Facebook is prohibited from producing under the SCA. 12 Subject to and without waiving the foregoing objections, Facebook will produce 13 responsive, non-privileged documents that it locates, if any, after a reasonable search that are 14 sufficient to show the contents of Facebook’s announcement, on or about June 1, 2007, regarding 15 opening the Facebook Platform to Developers. 16 SECOND SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 6: 17 Facebook incorporates each of the General Objections as if they were stated in full and 18 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 19 requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 20 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s announcement 21 CONCERNING opening FACEBOOK PLATFORM…”; (4) calls for information covered by the 22 attorney-client and work product privileges; (5) calls for confidential information in the absence 23 of the entry of a suitable protective order; (6) seeks documents that are not relevant to the subject 24 matter of this litigation and not reasonably calculated to lead to the discovery of admissible 25 evidence; (7) seeks information equally available to Plaintiff; and (8) seeks the content of 26 electronic communications that Facebook is prohibited from producing under the SCA. 27 Subject to and without waiving the foregoing objections, Facebook will produce 28 responsive, non-privileged documents that it locates, if any, after a reasonable search. -9Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000547 1 2 DOCUMENT REQUEST NO. 7: All DOCUMENTS AND COMMUNICATIONS CONCERNING Katie Mitic’s post on 3 FACEBOOK’s website dated June 1, 2007, CONCERNING opening FACEBOOK PLATFORM 4 to DEVELOPERS, INCLUDING her statement that “any developer can build the same 5 applications we can.” 6 RESPONSE TO DOCUMENT REQUEST NO. 7: 7 Facebook incorporates each of the General Objections as if they were stated in full and 8 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 9 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 10 calls for information covered by the attorney-client and work product privileges; (4) calls for 11 confidential information in the absence of the entry of a suitable protective order; (5) seeks 12 documents that are not relevant to the subject matter of this litigation and not reasonably 13 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 14 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 15 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 16 prohibited from producing under the SCA. 17 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 7: 18 Facebook incorporates each of the General Objections as if they were stated in full and 19 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 20 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 21 CONCERNING Katie Mitic’s post…”; (3) calls for information covered by the attorney-client 22 and work product privileges; (4) calls for confidential information in the absence of the entry of a 23 suitable protective order; (5) seeks documents that are not relevant to the subject matter of this 24 litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) seeks 25 information equally available to Plaintiff; and (7) seeks the content of electronic communications 26 that Facebook is prohibited from producing under the SCA. 27 28 Subject to and without waiving the foregoing objections, Facebook will produce responsive, non-privileged documents that it locates, if any, after a reasonable search that are -10Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000548 1 sufficient to show the contents of Katie Mitic’s post on FACEBOOK’s website dated June 1, 2 2007. 3 SECOND SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 7: 4 Facebook incorporates each of the General Objections as if they were stated in full and 5 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 6 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 7 CONCERNING Katie Mitic’s post…”; (3) calls for information covered by the attorney-client 8 and work product privileges; (4) calls for confidential information in the absence of the entry of a 9 suitable protective order; (5) seeks documents that are not relevant to the subject matter of this 10 litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) seeks 11 information equally available to Plaintiff; and (7) seeks the content of electronic communications 12 that Facebook is prohibited from producing under the SCA. 13 Subject to and without waiving the foregoing objections, Facebook will produce 14 responsive, non-privileged documents that it locates, if any, after a reasonable search. 15 DOCUMENT REQUEST NO. 8: 16 All DOCUMENTS AND COMMUNICATIONS CONCERNING any reservation of 17 rights on the part of FACEBOOK to close or modify DEVELOPER access to FACEBOOK 18 PLATFORM, in whole or in part. 19 RESPONSE TO DOCUMENT REQUEST NO. 8: 20 Facebook incorporates each of the General Objections as if they were stated in full and 21 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is vague and 22 ambiguous as to the terms “reservation of rights,” “close,” and “access”; (3) is overly broad and 23 unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (4) calls for 24 information covered by the attorney-client and work product privileges; (5) calls for confidential 25 information in the absence of the entry of a suitable protective order; (6) seeks documents that are 26 not relevant to the subject matter of this litigation and not reasonably calculated to lead to the 27 discovery of admissible evidence; (7) seeks information equally available to Plaintiff; (8) is 28 premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until September 8, 2015; -11Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000549 1 and (9) seeks the content of electronic communications that Facebook is prohibited from 2 producing under the SCA. 3 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 8: 4 Facebook incorporates each of the General Objections as if they were stated in full and 5 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is vague and 6 ambiguous as to the terms “reservation of rights,” “close,” and “access”; (3) is overly broad and 7 unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS CONCERNING 8 any reservation of rights…”; (4) calls for information covered by the attorney-client and work 9 product privileges; (5) calls for confidential information in the absence of the entry of a suitable 10 protective order; (6) seeks documents that are not relevant to the subject matter of this litigation 11 and not reasonably calculated to lead to the discovery of admissible evidence; (7) seeks 12 information equally available to Plaintiff; and (8) seeks the content of electronic communications 13 that Facebook is prohibited from producing under the SCA. 14 Subject to and without waiving the foregoing objections, Facebook will produce 15 responsive, non-privileged documents that it locates, if any, after a reasonable search that are 16 sufficient to show Facebook’s reservation of rights to close or modify Developer access to 17 Facebook Platform, in whole or in part. 18 DOCUMENT REQUEST NO. 9: 19 All DOCUMENTS AND COMMUNICATIONS CONCERNING the meaning of the 20 term “breaking change” as that term is used in FACEBOOK’s Ninety-Day Breaking Change 21 Policy. 22 RESPONSE TO DOCUMENT REQUEST NO. 9: 23 Facebook incorporates each of the General Objections as if they were stated in full and 24 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 25 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 26 calls for information covered by the attorney-client and work product privileges; (4) calls for 27 confidential information in the absence of the entry of a suitable protective order; (5) seeks 28 documents that are not relevant to the subject matter of this litigation and not reasonably -12Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000550 1 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 2 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 3 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 4 prohibited from producing under the SCA. 5 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 9: 6 Facebook incorporates each of the General Objections as if they were stated in full and 7 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 8 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 9 CONCERNING the meaning of the term ‘breaking change’…”; (3) calls for information covered 10 by the attorney-client and work product privileges; (4) calls for confidential information in the 11 absence of the entry of a suitable protective order; (5) seeks documents that are not relevant to the 12 subject matter of this litigation and not reasonably calculated to lead to the discovery of 13 admissible evidence; (6) seeks information equally available to Plaintiff; and (7) seeks the content 14 of electronic communications that Facebook is prohibited from producing under the SCA. 15 Subject to and without waiving the foregoing objections, Facebook will produce 16 responsive, non-privileged documents that it locates, if any, after a reasonable search that are 17 sufficient to show the meaning of the term “breaking change” as that term is used in Facebook’s 18 Ninety-Day Breaking Change Policy. 19 SECOND SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 9: 20 Facebook incorporates each of the General Objections as if they were stated in full and 21 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 22 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 23 CONCERNING the meaning of the term ‘breaking change’…”; (3) calls for information covered 24 by the attorney-client and work product privileges; (4) calls for confidential information in the 25 absence of the entry of a suitable protective order; (5) seeks documents that are not relevant to the 26 subject matter of this litigation and not reasonably calculated to lead to the discovery of 27 admissible evidence; (6) seeks information equally available to Plaintiff; and (7) seeks the content 28 of electronic communications that Facebook is prohibited from producing under the SCA. -13Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000551 1 Subject to and without waiving the foregoing objections, Facebook will produce 2 responsive, non-privileged documents that it locates, if any, after a reasonable search. 3 DOCUMENT REQUEST NO. 10: 4 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 5 decision to open Graph API to DEVELOPERS. 6 RESPONSE TO DOCUMENT REQUEST NO. 10: 7 Facebook incorporates each of the General Objections as if they were stated in full and 8 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 9 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 10 calls for information covered by the attorney-client and work product privileges; (4) calls for 11 confidential information in the absence of the entry of a suitable protective order; (5) seeks 12 documents that are not relevant to the subject matter of this litigation and not reasonably 13 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 14 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 15 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 16 prohibited from producing under the SCA. 17 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 10: 18 Facebook incorporates each of the General Objections as if they were stated in full and 19 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 20 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 21 CONCERNING FACEBOOK’S decision…”; (3) calls for information covered by the attorney- 22 client and work product privileges; (4) calls for confidential information in the absence of the 23 entry of a suitable protective order; (5) seeks documents that are not relevant to the subject matter 24 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) 25 seeks information equally available to Plaintiff; and (7) seeks the content of electronic 26 communications that Facebook is prohibited from producing under the SCA. 27 28 -14Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000552 1 2 DOCUMENT REQUEST NO. 11: All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 3 announcement of its decision to open Graph API to DEVELOPERS, INCLUDING any such 4 announcement by Bret Taylor at the F8 Developers Conference in 2010. 5 RESPONSE TO DOCUMENT REQUEST NO. 11: 6 Facebook incorporates each of the General Objections as if they were stated in full and 7 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 8 requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 9 DOCUMENTS AND COMMUNICATIONS”; (4) calls for information covered by the attorney- 10 client and work product privileges; (5) calls for confidential information in the absence of the 11 entry of a suitable protective order; (6) seeks documents that are not relevant to the subject matter 12 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (7) 13 seeks information equally available to Plaintiff; (8) is premature as Facebook’s Demurrer to 14 Plaintiff’s Complaint is not due until September 8, 2015; and (9) seeks the content of electronic 15 communications that Facebook is prohibited from producing under the SCA. 16 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 11: 17 Facebook incorporates each of the General Objections as if they were stated in full and 18 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 19 requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 20 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’S announcement of 21 its decision…”; (4) calls for information covered by the attorney-client and work product 22 privileges; (5) calls for confidential information in the absence of the entry of a suitable protective 23 order; (6) seeks documents that are not relevant to the subject matter of this litigation and not 24 reasonably calculated to lead to the discovery of admissible evidence; (7) seeks information 25 equally available to Plaintiff; and (8) seeks the content of electronic communications that 26 Facebook is prohibited from producing under the SCA. 27 28 Subject to and without waiving the foregoing objections, Facebook will produce responsive, non-privilege documents that it locates, if any, after a reasonable search that are -15Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000553 1 sufficient to show the contents of the public announcement of Facebook’s decision to open Graph 2 API to developers, including any such announcement by Bret Taylor at the F8 Developers 3 Conference in 2010. 4 SECOND SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 11: 5 Facebook incorporates each of the General Objections as if they were stated in full and 6 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 7 requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 8 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’S announcement of 9 its decision…”; (4) calls for information covered by the attorney-client and work product 10 privileges; (5) calls for confidential information in the absence of the entry of a suitable protective 11 order; (6) seeks documents that are not relevant to the subject matter of this litigation and not 12 reasonably calculated to lead to the discovery of admissible evidence; (7) seeks information 13 equally available to Plaintiff; and (8) seeks the content of electronic communications that 14 Facebook is prohibited from producing under the SCA. 15 Subject to and without waiving the foregoing objections, Facebook will produce 16 responsive, non-privileged documents that it locates, if any, after a reasonable search. 17 DOCUMENT REQUEST NO. 12: 18 All DOCUMENTS AND COMMUNICATIONS CONCERNING any reservation of 19 rights on the part of FACEBOOK to close or modify DEVELOPER access to Graph API, in 20 whole or in part. 21 RESPONSE TO DOCUMENT REQUEST NO. 12: 22 Facebook incorporates each of the General Objections as if they were stated in full and 23 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 24 Requests; (2) is vague and ambiguous; (3) is vague and ambiguous as to the terms “reservation of 25 rights,” “close,” and “access”; (4) is overly broad and unduly burdensome in seeking “all 26 DOCUMENTS AND COMMUNICATIONS”; (5) calls for information covered by the attorney- 27 client and work product privileges; (6) calls for confidential information in the absence of the 28 entry of a suitable protective order; (7) seeks documents that are not relevant to the subject matter -16Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000554 1 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (8) 2 seeks information equally available to Plaintiff; (9) is premature as Facebook’s Demurrer to 3 Plaintiff’s Complaint is not due until September 8, 2015; and (10) seeks the content of electronic 4 communications that Facebook is prohibited from producing under the SCA. 5 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 12: 6 Facebook incorporates each of the General Objections as if they were stated in full and 7 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 8 Requests; (2) is vague and ambiguous; (3) is vague and ambiguous as to the terms “reservation of 9 rights,” “close,” and “access”; (4) is overly broad and unduly burdensome in seeking “all 10 DOCUMENTS AND COMMUNICATIONS CONCERNING any reservation of rights…”; (5) 11 calls for information covered by the attorney-client and work product privileges; (6) calls for 12 confidential information in the absence of the entry of a suitable protective order; (7) seeks 13 documents that are not relevant to the subject matter of this litigation and not reasonably 14 calculated to lead to the discovery of admissible evidence; (8) seeks information equally available 15 to Plaintiff; and (9) seeks the content of electronic communications that Facebook is prohibited 16 from producing under the SCA. 17 Subject to and without waiving the foregoing objections, Facebook will produce 18 responsive, non-privileged documents that it locates, if any, after a reasonable search sufficient to 19 show Facebook’s reservation of rights to close or modify Developer access to Graph API, in 20 whole or in part. 21 DOCUMENT REQUEST NO. 13: 22 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 23 decision to permit DEVELOPERS to access the USER’s FRIENDS Photos ENDPOINT. 24 RESPONSE TO DOCUMENT REQUEST NO. 13: 25 Facebook incorporates each of the General Objections as if they were stated in full and 26 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 27 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 28 calls for information covered by the attorney-client and work product privileges; (4) calls for -17Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000555 1 confidential information in the absence of the entry of a suitable protective order; (5) seeks 2 documents that are not relevant to the subject matter of this litigation and not reasonably 3 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 4 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 5 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 6 prohibited from producing under the SCA. 7 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 13: 8 Facebook incorporates each of the General Objections as if they were stated in full and 9 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 10 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 11 CONCERNING FACEBOOK’s decision…”; (3) calls for information covered by the attorney- 12 client and work product privileges; (4) calls for confidential information in the absence of the 13 entry of a suitable protective order; (5) seeks documents that are not relevant to the subject matter 14 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) 15 seeks information equally available to Plaintiff; and (7) seeks the content of electronic 16 communications that Facebook is prohibited from producing under the SCA. 17 SECOND SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 13: 18 Facebook incorporates each of the General Objections as if they were stated in full and 19 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 20 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 21 CONCERNING FACEBOOK’s decision…”; (3) calls for information covered by the attorney- 22 client and work product privileges; (4) calls for confidential information in the absence of the 23 entry of a suitable protective order; (5) seeks documents that are not relevant to the subject matter 24 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) 25 seeks information equally available to Plaintiff; and (7) seeks the content of electronic 26 communications that Facebook is prohibited from producing under the SCA. 27 28 Subject to and without waiving the foregoing objections, Facebook will produce responsive, non-privileged documents that it locates, if any, after a reasonable search that are -18Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000556 1 sufficient to show Facebook’s reasons for providing Developers access to the Friends’ Photos 2 Endpoint. 3 DOCUMENT REQUEST NO. 14: 4 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 5 announcement of its decision to permit DEVELOPERS to access the USER’s FRIENDS Photos 6 ENDPOINT, INCLUDING any such announcement by Bret Taylor at the F8 Developers 7 Conference in 2010. 8 RESPONSE TO DOCUMENT REQUEST NO. 14: 9 Facebook incorporates each of the General Objections as if they were stated in full and 10 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 11 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 12 DOCUMENTS AND COMMUNICATIONS”; (4) calls for information covered by the attorney- 13 client and work product privileges; (5) calls for confidential information in the absence of the 14 entry of a suitable protective order; (6) seeks documents that are not relevant to the subject matter 15 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (7) 16 seeks information equally available to Plaintiff; (8) is premature as Facebook’s Demurrer to 17 Plaintiff’s Complaint is not due until September 8, 2015; and (9) seeks the content of electronic 18 communications that Facebook is prohibited from producing under the SCA. 19 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 14: 20 Facebook incorporates each of the General Objections as if they were stated in full and 21 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 22 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 23 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s announcement…”; 24 (4) calls for information covered by the attorney-client and work product privileges; (5) calls for 25 confidential information in the absence of the entry of a suitable protective order; (6) seeks 26 documents that are not relevant to the subject matter of this litigation and not reasonably 27 calculated to lead to the discovery of admissible evidence; (7) seeks information equally available 28 -19Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000557 1 to Plaintiff; and (8) seeks the content of electronic communications that Facebook is prohibited 2 from producing under the SCA. 3 Subject to and without waiving the foregoing objections, Facebook will produce 4 responsive, non-privileged documents that it locates, if any, after a reasonable search that are 5 sufficient to show the contents of the public announcement of Facebook’s decision to permit 6 Developers to access the user’s FRIENDS Photos ENDPOINT, including any such announcement 7 by Bret Taylor at the F8 Developers Conference in 2010. 8 SECOND SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 14: 9 Facebook incorporates each of the General Objections as if they were stated in full and 10 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 11 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 12 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s announcement…”; 13 (4) calls for information covered by the attorney-client and work product privileges; (5) calls for 14 confidential information in the absence of the entry of a suitable protective order; (6) seeks 15 documents that are not relevant to the subject matter of this litigation and not reasonably 16 calculated to lead to the discovery of admissible evidence; (7) seeks information equally available 17 to Plaintiff; and (8) seeks the content of electronic communications that Facebook is prohibited 18 from producing under the SCA. 19 Subject to and without waiving the foregoing objections, Facebook will produce 20 responsive, non-privileged documents that it locates, if any, after a reasonable search. 21 DOCUMENT REQUEST NO. 15: 22 All DOCUMENTS AND COMMUNICATIONS CONCERNING any privacy concerns 23 associated with permitting DEVELOPER access to the USER’s FRIENDS Photos ENDPOINT. 24 RESPONSE TO DOCUMENT REQUEST NO. 15: 25 Facebook incorporates each of the General Objections as if they were stated in full and 26 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is vague and 27 ambiguous as to the term “privacy concerns”; (3) is overly broad and unduly burdensome in 28 seeking “all DOCUMENTS AND COMMUNICATIONS”; (4) calls for information covered by -20Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000558 1 the attorney-client and work product privileges; (5) calls for confidential information in the 2 absence of the entry of a suitable protective order; (6) seeks documents that are not relevant to the 3 subject matter of this litigation and not reasonably calculated to lead to the discovery of 4 admissible evidence; (7) seeks information equally available to Plaintiff; (8) is premature as 5 Facebook’s Demurrer to Plaintiff’s Complaint is not due until September 8, 2015; and (9) seeks 6 the content of electronic communications that Facebook is prohibited from producing under the 7 SCA. 8 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 15: 9 Facebook incorporates each of the General Objections as if they were stated in full and 10 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is vague and 11 ambiguous as to the term “privacy concerns”; (3) is overly broad and unduly burdensome in 12 seeking “all DOCUMENTS AND COMMUNICATIONS CONCERNING any privacy 13 concerns…”; (4) calls for information covered by the attorney-client and work product privileges; 14 (5) calls for confidential information in the absence of the entry of a suitable protective order; (6) 15 seeks documents that are not relevant to the subject matter of this litigation and not reasonably 16 calculated to lead to the discovery of admissible evidence; (7) seeks information equally available 17 to Plaintiff; and (8) seeks the content of electronic communications that Facebook is prohibited 18 from producing under the SCA. 19 DOCUMENT REQUEST NO. 16: 20 All DOCUMENTS AND COMMUNICATIONS CONCERNING any reservation of 21 rights on the part of FACEBOOK to close or modify DEVELOPER access to USER’s FRIENDS 22 Photos ENDPOINT, in whole or in part. 23 RESPONSE TO DOCUMENT REQUEST NO. 16: 24 Facebook incorporates each of the General Objections as if they were stated in full and 25 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 26 Requests; (2) is vague and ambiguous; (3) is vague and ambiguous as to the terms “reservation of 27 rights,” “close,” and “access”; (4) is overly broad and unduly burdensome in seeking “all 28 DOCUMENTS AND COMMUNICATIONS”; (5) calls for information covered by the attorney-21Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000559 1 client and work product privileges; (6) calls for confidential information in the absence of the 2 entry of a suitable protective order; (7) seeks documents that are not relevant to the subject matter 3 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (8) 4 seeks information equally available to Plaintiff; (9) is premature as Facebook’s Demurrer to 5 Plaintiff’s Complaint is not due until September 8, 2015; and (10) seeks the content of electronic 6 communications that Facebook is prohibited from producing under the SCA. 7 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 16: 8 9 Facebook incorporates each of the General Objections as if they were stated in full and further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 10 Requests; (2) is vague and ambiguous; (3) is vague and ambiguous as to the terms “reservation of 11 rights,” “close,” and “access”; (4) is overly broad and unduly burdensome in seeking “all 12 DOCUMENTS AND COMMUNICATIONS CONCERNING any reservation of rights…”; (5) 13 calls for information covered by the attorney-client and work product privileges; (6) calls for 14 confidential information in the absence of the entry of a suitable protective order; (7) seeks 15 documents that are not relevant to the subject matter of this litigation and not reasonably 16 calculated to lead to the discovery of admissible evidence; (8) seeks information equally available 17 to Plaintiff; and (9) seeks the content of electronic communications that Facebook is prohibited 18 from producing under the SCA. 19 Subject to and without waiving the foregoing objections, Facebook will produce 20 responsive, non-privileged documents that it locates, if any, after a reasonable search sufficient to 21 show Facebook’s reservation of rights to close or modify Developer access to user’s FRIENDS 22 Photos ENDPOINT, in whole or in part. 23 DOCUMENT REQUEST NO. 17: 24 All DOCUMENTS AND COMMUNICATIONS CONCERNING “Operation Developer 25 Love,” INCLUDING as that term is referenced on 26 https://developers.facebook.com/blog/post/2012/10/03/platform-updates--operation-developer- 27 love/. 28 -22Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000560 1 2 RESPONSE TO DOCUMENT REQUEST NO. 17: Facebook incorporates each of the General Objections as if they were stated in full and 3 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 4 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 5 CONCERNING ‘Operation Developer Love’…”; (3) calls for information covered by the 6 attorney-client and work product privileges; (4) calls for confidential information in the absence 7 of the entry of a suitable protective order; (5) seeks documents that are not relevant to the subject 8 matter of this litigation and not reasonably calculated to lead to the discovery of admissible 9 evidence; (6) seeks information equally available to Plaintiff; (7) is premature as Facebook’s 10 Demurrer to Plaintiff’s Complaint is not due until September 8, 2015; and (8) seeks the content of 11 electronic communications that Facebook is prohibited from producing under the SCA. 12 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 17: 13 Facebook incorporates each of the General Objections as if they were stated in full and 14 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 15 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 16 calls for information covered by the attorney-client and work product privileges; (4) calls for 17 confidential information in the absence of the entry of a suitable protective order; (5) seeks 18 documents that are not relevant to the subject matter of this litigation and not reasonably 19 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 20 to Plaintiff; and (7) seeks the content of electronic communications that Facebook is prohibited 21 from producing under the SCA. 22 DOCUMENT REQUEST NO. 18: 23 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 24 decision to refer to Graph API with version numbers, INCLUDING use of the term “versioning.” 25 RESPONSE TO DOCUMENT REQUEST NO. 18: 26 Facebook incorporates each of the General Objections as if they were stated in full and 27 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 28 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) -23Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000561 1 calls for information covered by the attorney-client and work product privileges; (4) calls for 2 confidential information in the absence of the entry of a suitable protective order; (5) seeks 3 documents that are not relevant to the subject matter of this litigation and not reasonably 4 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 5 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 6 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 7 prohibited from producing under the SCA. 8 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 18: 9 Facebook incorporates each of the General Objections as if they were stated in full and 10 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 11 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 12 CONCERNING Facebook’s decision…”; (3) calls for information covered by the attorney-client 13 and work product privileges; (4) calls for confidential information in the absence of the entry of a 14 suitable protective order; (5) seeks documents that are not relevant to the subject matter of this 15 litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) seeks 16 information equally available to Plaintiff; and (7) seeks the content of electronic communications 17 that Facebook is prohibited from producing under the SCA. 18 DOCUMENT REQUEST NO. 19: 19 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 20 decision to introduce Graph API v. 2.0. 21 RESPONSE TO DOCUMENT REQUEST NO. 19: 22 Facebook incorporates each of the General Objections as if they were stated in full and 23 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 24 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 25 calls for information covered by the attorney-client and work product privileges; (4) calls for 26 confidential information in the absence of the entry of a suitable protective order; (5) seeks 27 documents that are not relevant to the subject matter of this litigation and not reasonably 28 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available -24Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000562 1 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 2 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 3 prohibited from producing under the SCA. 4 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 19: 5 Facebook incorporates each of the General Objections as if they were stated in full and 6 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 7 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 8 CONCERNING FACEBOOK’s decision…”; (3) calls for information covered by the attorney- 9 client and work product privileges; (4) calls for confidential information in the absence of the 10 entry of a suitable protective order; (5) seeks documents that are not relevant to the subject matter 11 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) 12 seeks information equally available to Plaintiff; and (7) seeks the content of electronic 13 communications that Facebook is prohibited from producing under the SCA. 14 DOCUMENT REQUEST NO. 20: 15 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 16 decision to end DEVELOPER access to the USER’s FRIENDS Photos ENDPOINT. 17 RESPONSE TO DOCUMENT REQUEST NO. 20: 18 Facebook incorporates each of the General Objections as if they were stated in full and 19 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 20 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 21 calls for information covered by the attorney-client and work product privileges; (4) calls for 22 confidential information in the absence of the entry of a suitable protective order; (5) seeks 23 documents that are not relevant to the subject matter of this litigation and not reasonably 24 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 25 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 26 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 27 prohibited from producing under the SCA. 28 -25Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000563 1 2 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 20: Facebook incorporates each of the General Objections as if they were stated in full and 3 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 4 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 5 CONCERNING FACEBOOK’s decision…”; (3) calls for information covered by the attorney- 6 client and work product privileges; (4) calls for confidential information in the absence of the 7 entry of a suitable protective order; (5) seeks documents that are not relevant to the subject matter 8 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) 9 seeks information equally available to Plaintiff; and (7) seeks the content of electronic 10 communications that Facebook is prohibited from producing under the SCA. 11 SECOND SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 20: 12 Facebook incorporates each of the General Objections as if they were stated in full and 13 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 14 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 15 CONCERNING FACEBOOK’s decision…”; (3) calls for information covered by the attorney- 16 client and work product privileges; (4) calls for confidential information in the absence of the 17 entry of a suitable protective order; (5) seeks documents that are not relevant to the subject matter 18 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) 19 seeks information equally available to Plaintiff; and (7) seeks the content of electronic 20 communications that Facebook is prohibited from producing under the SCA. 21 Subject to and without waiving the foregoing objections, Facebook will produce 22 responsive, non-privileged documents that it locates, if any, after a reasonable search that are 23 sufficient to show Facebook’s reasons for closing access to the Friends’ Photos Endpoint. 24 DOCUMENT REQUEST NO. 21: 25 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 26 announcement of Graph API v. 2.0, INCLUDING any such announcement at the F8 Developers 27 Conference in 2014. 28 -26Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000564 1 2 RESPONSE TO DOCUMENT REQUEST NO. 21: Facebook incorporates each of the General Objections as if they were stated in full and 3 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 4 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 5 DOCUMENTS AND COMMUNICATIONS”; (4) calls for information covered by the attorney- 6 client and work product privileges; (5) calls for confidential information in the absence of the 7 entry of a suitable protective order; (6) seeks documents that are not relevant to the subject matter 8 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (7) 9 seeks information equally available to Plaintiff; (8) is premature as Facebook’s Demurrer to 10 Plaintiff’s Complaint is not due until September 8, 2015; and (9) seeks the content of electronic 11 communications that Facebook is prohibited from producing under the SCA. 12 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 21: 13 Facebook incorporates each of the General Objections as if they were stated in full and 14 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 15 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 16 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s announcement…”; 17 (4) calls for information covered by the attorney-client and work product privileges; (5) calls for 18 confidential information in the absence of the entry of a suitable protective order; (6) seeks 19 documents that are not relevant to the subject matter of this litigation and not reasonably 20 calculated to lead to the discovery of admissible evidence; (7) seeks information equally available 21 to Plaintiff; and (8) seeks the content of electronic communications that Facebook is prohibited 22 from producing under the SCA. 23 Subject to and without waiving the foregoing objections, Facebook will produce 24 responsive, non-privileged documents that it locates, if any, after a reasonable search that are 25 sufficient to show the content of Facebook’s public announcement of Graph API v. 2.0, including 26 any such announcement at the F8 Developers Conference in 2014. 27 28 -27Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000565 1 2 SECOND SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 21: Facebook incorporates each of the General Objections as if they were stated in full and 3 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 4 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 5 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s announcement…”; 6 (4) calls for information covered by the attorney-client and work product privileges; (5) calls for 7 confidential information in the absence of the entry of a suitable protective order; (6) seeks 8 documents that are not relevant to the subject matter of this litigation and not reasonably 9 calculated to lead to the discovery of admissible evidence; (7) seeks information equally available 10 to Plaintiff; and (8) seeks the content of electronic communications that Facebook is prohibited 11 from producing under the SCA. 12 Subject to and without waiving the foregoing objections, Facebook will produce 13 responsive, non-privileged documents that it locates, if any, after a reasonable search. 14 DOCUMENT REQUEST NO. 22: 15 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 16 announcement of its decision to end DEVELOPER access to the USER’s FRIENDS Photos 17 ENDPOINT, INCLUDING any such announcement at the F8 Developers Conference in 2014. 18 RESPONSE TO DOCUMENT REQUEST NO. 22: 19 Facebook incorporates each of the General Objections as if they were stated in full and 20 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 21 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 22 DOCUMENTS AND COMMUNICATIONS”; (4) calls for information covered by the attorney- 23 client and work product privileges; (5) calls for confidential information in the absence of the 24 entry of a suitable protective order; (6) seeks documents that are not relevant to the subject matter 25 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (7) 26 seeks information equally available to Plaintiff; (8) is premature as Facebook’s Demurrer to 27 Plaintiff’s Complaint is not due until September 8, 2015; and (9) seeks the content of electronic 28 communications that Facebook is prohibited from producing under the SCA. -28Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000566 1 2 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 22: Facebook incorporates each of the General Objections as if they were stated in full and 3 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 4 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 5 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s announcement…”; 6 (4) calls for information covered by the attorney-client and work product privileges; (5) calls for 7 confidential information in the absence of the entry of a suitable protective order; (6) seeks 8 documents that are not relevant to the subject matter of this litigation and not reasonably 9 calculated to lead to the discovery of admissible evidence; (7) seeks information equally available 10 to Plaintiff; and (8) seeks the content of electronic communications that Facebook is prohibited 11 from producing under the SCA. 12 Subject to and without waiving the foregoing objections, Facebook will produce 13 responsive, non-privileged documents that it locates, if any, after a reasonable search sufficient to 14 show the contents of Facebook’s public announcement of its decision to end Developer access to 15 the user’s Friends Photos Endpoint, including any such announcement at the F8 Developers 16 Conference in 2014. 17 SECOND SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 22: 18 Facebook incorporates each of the General Objections as if they were stated in full and 19 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 20 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 21 DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s announcement…”; 22 (4) calls for information covered by the attorney-client and work product privileges; (5) calls for 23 confidential information in the absence of the entry of a suitable protective order; (6) seeks 24 documents that are not relevant to the subject matter of this litigation and not reasonably 25 calculated to lead to the discovery of admissible evidence; (7) seeks information equally available 26 to Plaintiff; and (8) seeks the content of electronic communications that Facebook is prohibited 27 from producing under the SCA. 28 -29Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000567 1 Subject to and without waiving the foregoing objections, Facebook will produce 2 responsive, non-privileged documents that it locates, if any, after a reasonable search. 3 DOCUMENT REQUEST NO. 23: 4 All DOCUMENTS AND COMMUNICATIONS CONCERNING any 5 COMMUNICATIONS from DEVELOPERS CONCERNING the introduction of Graph API v. 6 2.0, INCLUDING FACEBOOK’s decision to end access to the USER’s FRIENDS Photos 7 ENDPOINT and other ENDPOINTS. 8 RESPONSE TO DOCUMENT REQUEST NO. 23: 9 Facebook incorporates each of the General Objections as if they were stated in full and 10 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 11 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 12 DOCUMENTS AND COMMUNICATIONS”; (4) calls for information covered by the attorney- 13 client and work product privileges; (5) calls for confidential information in the absence of the 14 entry of a suitable protective order; (6) seeks documents that are not relevant to the subject matter 15 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (7) 16 seeks information equally available to Plaintiff; (8) is premature as Facebook’s Demurrer to 17 Plaintiff’s Complaint is not due until September 8, 2015; and (9) seeks the content of electronic 18 communications that Facebook is prohibited from producing under the SCA. 19 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 23: 20 Facebook incorporates each of the General Objections as if they were stated in full and 21 further objects to this Request to the extent that it: (1) is duplicative and cumulative of prior 22 Requests; (2) is vague and ambiguous; (3) is overly broad and unduly burdensome in seeking “all 23 DOCUMENTS AND COMMUNICATIONS CONCERNING any COMMUNICATIONS…”; 24 (4) calls for information covered by the attorney-client and work product privileges; (5) calls for 25 confidential information in the absence of the entry of a suitable protective order; (6) seeks 26 documents that are not relevant to the subject matter of this litigation and not reasonably 27 calculated to lead to the discovery of admissible evidence; (7) seeks information equally available 28 -30Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000568 1 to Plaintiff; and (8) seeks the content of electronic communications that Facebook is prohibited 2 from producing under the SCA. 3 DOCUMENT REQUEST NO. 24: 4 All DOCUMENTS AND COMMUNICATIONS CONCERNING any accommodations 5 or exceptions made to permit continued DEVELOPER access to ENDPOINTS after the 6 introduction of Graph API v. 2.0. 7 RESPONSE TO DOCUMENT REQUEST NO. 24: 8 9 Facebook incorporates each of the General Objections as if they were stated in full and further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 10 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 11 calls for information covered by the attorney-client and work product privileges; (4) calls for 12 confidential information in the absence of the entry of a suitable protective order; (5) seeks 13 documents that are not relevant to the subject matter of this litigation and not reasonably 14 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 15 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 16 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 17 prohibited from producing under the SCA. 18 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 24: 19 Facebook incorporates each of the General Objections as if they were stated in full and 20 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 21 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 22 calls for information covered by the attorney-client and work product privileges; (4) calls for 23 confidential information in the absence of the entry of a suitable protective order; (5) seeks 24 documents that are not relevant to the subject matter of this litigation and not reasonably 25 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 26 to Plaintiff; and (7) seeks the content of electronic communications that Facebook is prohibited 27 from producing under the SCA. 28 -31Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000569 1 2 DOCUMENT REQUEST NO. 25: All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 3 intention to use image recognition software to permit USERS to sort or search through their 4 photos or their FRIENDS’ photos. 5 RESPONSE TO DOCUMENT REQUEST NO. 25: 6 Facebook incorporates each of the General Objections as if they were stated in full and 7 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 8 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 9 calls for information covered by the attorney-client and work product privileges; (4) calls for 10 confidential information in the absence of the entry of a suitable protective order; (5) seeks 11 documents that are not relevant to the subject matter of this litigation and not reasonably 12 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 13 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 14 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 15 prohibited from producing under the SCA. 16 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 25: 17 Facebook incorporates each of the General Objections as if they were stated in full and 18 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 19 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS 20 CONCERNING FACEBOOK’s intention...”; (3) calls for information covered by the attorney- 21 client and work product privileges; (4) calls for confidential information in the absence of the 22 entry of a suitable protective order; (5) seeks documents that are not relevant to the subject matter 23 of this litigation and not reasonably calculated to lead to the discovery of admissible evidence; (6) 24 seeks information equally available to Plaintiff; and (7) seeks the content of electronic 25 communications that Facebook is prohibited from producing under the SCA. 26 27 28 -32Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000570 1 DOCUMENT REQUEST NO. 26: 2 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s 3 intention to use image recognition software to permit USERS to sort or search through photos on 4 Instagram. 5 RESPONSE TO DOCUMENT REQUEST NO. 26: 6 Facebook incorporates each of the General Objections as if they were stated in full and 7 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 8 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 9 calls for information covered by the attorney-client and work product privileges; (4) calls for 10 confidential information in the absence of the entry of a suitable protective order; (5) seeks 11 documents that are not relevant to the subject matter of this litigation and not reasonably 12 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 13 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 14 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 15 prohibited from producing under the SCA. 16 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 26: 17 Facebook incorporates each of the General Objections as if they were stated in full and 18 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 19 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 20 calls for information covered by the attorney-client and work product privileges; (4) calls for 21 confidential information in the absence of the entry of a suitable protective order; (5) seeks 22 documents that are not relevant to the subject matter of this litigation and not reasonably 23 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 24 to Plaintiff; and (7) seeks the content of electronic communications that Facebook is prohibited 25 from producing under the SCA. 26 DOCUMENT REQUEST NO. 27: 27 28 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s policies regarding DEVELOPERS’ ability to show data obtained from one USER to another, -33Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000571 1 INCLUDING FACEBOOK PLATFORM Policy ¶ 3.2. See 2 https://developers.facebook.com/policy/ (“Only show data obtained from a user access token on 3 the devices associated with that token.”). 4 RESPONSE TO DOCUMENT REQUEST NO. 27: 5 Facebook incorporates each of the General Objections as if they were stated in full and 6 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 7 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 8 calls for information covered by the attorney-client and work product privileges; (4) calls for 9 confidential information in the absence of the entry of a suitable protective order; (5) seeks 10 documents that are not relevant to the subject matter of this litigation and not reasonably 11 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 12 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 13 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 14 prohibited from producing under the SCA. 15 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 27: 16 Facebook incorporates each of the General Objections as if they were stated in full and 17 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 18 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 19 calls for information covered by the attorney-client and work product privileges; (4) calls for 20 confidential information in the absence of the entry of a suitable protective order; (5) seeks 21 documents that are not relevant to the subject matter of this litigation and not reasonably 22 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 23 to Plaintiff; and (7) seeks the content of electronic communications that Facebook is prohibited 24 from producing under the SCA. 25 DOCUMENT REQUEST NO. 28: 26 All DOCUMENTS AND COMMUNICATIONS CONCERNING FACEBOOK’s policies 27 regarding DEVELOPERS’ ability to retain USER data, INCLUDING FACEBOOK PLATFORM 28 -34Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000572 1 Policy ¶ 3.4. See https://developers.facebook.com/policy/ (“If you cache data you receive from 2 us, use it to improve your app’s user experience and keep it up to date.”). 3 RESPONSE TO DOCUMENT REQUEST NO. 28: 4 Facebook incorporates each of the General Objections as if they were stated in full and 5 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 6 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 7 calls for information covered by the attorney-client and work product privileges; (4) calls for 8 confidential information in the absence of the entry of a suitable protective order; (5) seeks 9 documents that are not relevant to the subject matter of this litigation and not reasonably 10 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 11 to Plaintiff; (7) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due until 12 September 8, 2015; and (8) seeks the content of electronic communications that Facebook is 13 prohibited from producing under the SCA. 14 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 28: 15 Facebook incorporates each of the General Objections as if they were stated in full and 16 further objects to this Request to the extent that it: (1) is vague and ambiguous; (2) is overly 17 broad and unduly burdensome in seeking “all DOCUMENTS AND COMMUNICATIONS”; (3) 18 calls for information covered by the attorney-client and work product privileges; (4) calls for 19 confidential information in the absence of the entry of a suitable protective order; (5) seeks 20 documents that are not relevant to the subject matter of this litigation and not reasonably 21 calculated to lead to the discovery of admissible evidence; (6) seeks information equally available 22 to Plaintiff; and (7) seeks the content of electronic communications that Facebook is prohibited 23 from producing under the SCA. 24 DOCUMENT REQUEST NO. 29: 25 All DOCUMENTS identified, mentioned, referenced, reviewed, or relied upon in the 26 preparation of DEFENDANT’s answers to any of PLAINTIFF’s interrogatories served on 27 DEFENDANT in this matter. 28 -35Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000573 1 2 RESPONSE TO DOCUMENT REQUEST NO. 29: Facebook incorporates each of the General Objections as if they were stated in full and 3 further objects to this Request to the extent that it: (1) is overly broad and unduly burdensome in 4 seeking “all DOCUMENTS;” (2) is premature as Facebook has not been served with 5 interrogatories; and (3) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due 6 until September 8, 2015. 7 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 29: 8 9 Facebook incorporates each of the General Objections as if they were stated in full and further objects to this Request to the extent that it: (1) is overly broad and unduly burdensome in 10 seeking “all DOCUMENTS” and (2) is premature as Facebook has not been served with 11 interrogatories. 12 Subject to and without waiving the foregoing objections, Facebook responds that it has 13 not been served with interrogatories and therefore has no documents responsive to this Request. 14 DOCUMENT REQUEST NO. 30: 15 All DOCUMENTS CONCERNING any legal and factual allegations, affirmative 16 defenses, and requests for relief in DEFENDANT’s Answer or other response to the Complaint, 17 as well as in any subsequently added or supplemental pleading in this Action. 18 RESPONSE TO DOCUMENT REQUEST NO. 30: 19 Facebook incorporates each of the General Objections as if they were stated in full and 20 further objects to this Request to the extent that it: (1) is overly broad and unduly burdensome in 21 seeking “all DOCUMENTS” and (2) is premature as Facebook’s Demurrer to Plaintiff’s 22 Complaint is not due until September 8, 2015. 23 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 30: 24 Facebook incorporates each of the General Objections as if they were stated in full and 25 further objects to this Request to the extent that it is (1) overly broad and unduly burdensome in 26 seeking “all DOCUMENTS CONCERNING any legal and factual allegations, affirmative 27 defenses, and requests for relief....” and (2) premature, as it relates to events and deadlines in this 28 litigation that have not yet occurred. -36Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000574 1 2 DOCUMENT REQUEST NO. 31: Organization chart(s) sufficient to describe the organizational structure of DEFENDANT 3 and the personnel in the areas responsible for FACEBOOK’s Platform Policy, FACEBOOK’s 4 Graph API policy, AND FACEBOOK’s policies for DEVELOPERS in general. 5 RESPONSE TO DOCUMENT REQUEST NO. 31: 6 Facebook incorporates each of the General Objections as if they were stated in full and 7 further objects to this Request to the extent that it: (1) is compound; (2) seeks information 8 equally available to Plaintiff; and (3) is premature as Facebook’s Demurrer to Plaintiff’s 9 Complaint is not due until September 8, 2015. 10 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 31: 11 Facebook incorporates each of the General Objections as if they were stated in full and 12 further objects to this Request to the extent that it: (1) is compound; and (2) seeks information 13 equally available to Plaintiff. 14 Subject to and without waiving the foregoing objections, Facebook responds that it will 15 produce non-privileged, responsive “Organization charts.” 16 DOCUMENT REQUEST NO. 32: 17 All DOCUMENTS CONCERNING the retention of DOCUMENTS, whether formal or 18 informal, by DEFENDANT. 19 RESPONSE TO DOCUMENT REQUEST NO. 32: 20 Facebook incorporates each of the General Objections as if they were stated in full and 21 further objects to this Request to the extent that it: (1) is overly broad and unduly burdensome in 22 seeking “all DOCUMENTS”; (2) calls for information covered by the attorney-client and work 23 product privileges; (3) calls for confidential information in the absence of the entry of a suitable 24 protective order; (4) is premature as Facebook’s Demurrer to Plaintiff’s Complaint is not due 25 until September 8, 2015; and (5) seeks documents that are not relevant to the subject matter of 26 this litigation and not reasonably calculated to lead to the discovery of admissible evidence. 27 28 -37Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000575 1 2 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 32: Facebook incorporates each of the General Objections as if they were stated in full and 3 further objects to this Request to the extent that it: (1) is overly broad and unduly burdensome in 4 seeking “all DOCUMENTS CONCERNING the retention of DOCUMENTS…”; (2) calls for 5 information covered by the attorney-client and work product privileges; (3) calls for confidential 6 information in the absence of the entry of a suitable protective order; and (4) seeks documents 7 that are not relevant to the subject matter of this litigation and not reasonably calculated to lead to 8 the discovery of admissible evidence. 9 Subject to and without waiving the foregoing objections, Facebook will produce 10 responsive, non-privileged documents that it locates, if any, after a reasonable search sufficient to 11 show Facebook’s document retention policies. 12 DOCUMENT REQUEST NO. 33: 13 All DOCUMENTS CONCERNING COMMUNICATIONS between PLAINTIFF AND 14 the DEFENDANT prior to initiation of this Action. 15 RESPONSE TO DOCUMENT REQUEST NO. 33: 16 Facebook incorporates each of the General Objections as if they were stated in full and 17 further objects to this Request to the extent that it: (1) is overly broad and unduly burdensome in 18 seeking “all DOCUMENTS”; (2) calls for information covered by the attorney-client and work 19 product privileges; (3) calls for confidential information in the absence of the entry of a suitable 20 protective order; (4) seeks documents that are not relevant to the subject matter of this litigation 21 and not reasonably calculated to lead to the discovery of admissible evidence; (5) seeks 22 information equally available to Plaintiff; (6) is premature as Facebook’s Demurrer to Plaintiff’s 23 Complaint is not due until September 8, 2015; and (7) seeks the content of electronic 24 communications that Facebook is prohibited from producing under the SCA. 25 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 33: 26 Facebook incorporates each of the General Objections as if they were stated in full and 27 further objects to this Request to the extent that it: (1) is overly broad and unduly burdensome in 28 seeking “all DOCUMENTS CONCERNING COMMUNICATIONS…”; (2) calls for information -38Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000576 1 covered by the attorney-client and work product privileges; (3) calls for confidential information 2 in the absence of the entry of a suitable protective order; (4) seeks documents that are not relevant 3 to the subject matter of this litigation and not reasonably calculated to lead to the discovery of 4 admissible evidence; (5) seeks information equally available to Plaintiff; and (6) seeks the content 5 of electronic communications that Facebook is prohibited from producing under the SCA. 6 DOCUMENT REQUEST NO. 34: 7 All DOCUMENTS DEFENDANT intends to introduce at trial, OR in any pre-trial 8 submission to the Court in this Action. 9 RESPONSE TO DOCUMENT REQUEST NO. 34: 10 Facebook incorporates each of the General Objections as if they were stated in full and 11 further objects to this Request to the extent that it: (1) is overly broad and unduly burdensome in 12 seeking “all DOCUMENTS”; (2) calls for confidential information in the absence of the entry of 13 a suitable protective order; and (3) is premature, including because Facebook’s Demurrer to 14 Plaintiff’s Complaint is not due until September 8, 2015. 15 SUPPLEMENTAL RESPONSE TO DOCUMENT REQUEST NO. 34: 16 Facebook incorporates each of the General Objections as if they were stated in full and 17 further objects to this Request to the extent that it: (1) is overly broad and unduly burdensome in 18 seeking “all DOCUMENTS DEFENDANT intends to introduce…”; (2) calls for confidential 19 information in the absence of the entry of a suitable protective order; and (3) is premature, as it 20 relates to events and deadlines in this litigation that have not yet occurred. 21 DATED: August 25, 2016 PERKINS COIE LLP 22 23 24 By: Julie E. Schwartz Attorneys for Defendant Facebook, Inc. 25 26 27 28 -39Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000577 1 2 PROOF OF SERVICE BY MAIL I, Marla J. Heap, am a citizen of the United States and employed in Santa Clara County, 3 California. I am over the age of eighteen years and not a party to the within-entitled action. My 4 business address is 3150 Porter Drive, Palo Alto, California 94304-1212. I am readily familiar 5 with this firm’s practice for collection and processing of correspondence for mailing with the 6 United States Postal Service. On August 25, 2016, I placed with this firm at the above address for 7 deposit with the United States Postal Service a true and correct copy of the within document(s): 8 DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL OBJECTIONS AND RESPONSES TO PLAINTIFF SIX4THREE, LLC’S FIRST SET OF DEMANDS FOR INSPECTION OF DOCUMENTS 9 10 11 in a sealed envelope, postage fully paid, addressed as follows: 12 Basil P. Fthenakis, Esq. CRITERION LAW 2225 E. Bayshore Road, Suite 200 Palo Alto, California 94303 Telephone: 650.352.8400 Facsimile: 650.352.8408 bpf@criterionlaw.com 13 14 15 16 17 Of counsel: David S. Godkin BIRNBAUM & GODKIN, LLP 280 Summer Street, Suite 500 Boston, MA 02210 Telephone: 617.307.6100 godkin@birnbaumgodkin.com Following ordinary business practices, the envelope was sealed and placed for collection 18 and mailing on this date, and would, in the ordinary course of business, be deposited with the 19 United States Postal Service on this date. 20 21 22 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed August 25, 2016, at Palo Alto, California. 23 24 25 Marla J. Heap 26 27 28 -1Facebook’s Second Supplemental Objections and Responses To Plaintiff’s First Demand For Inspection Case No; CIV533328 BG000578 Julie E. Schwartz, Bar No. 260624 J Schwartz@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350 FILED SAN MATEO COUNTY 0 .T 25 ZUlE NOM-PWN James R. McCullagh, admitted pro hac vice c9335)! IMcCullagh@perkinscoie.com PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 3C, Attorneys for Defendant F acebook, Inc. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 14 SIX4THREE, LLC, liability company, a Delaware limited Case No. CIV533328 STIPULATED [PROPOSED] PROTECTIVE ORDER 15 Plaintiff, 16 V. 17 FACEBOOK, INC., 18 a Delaware corporation and DOES 1-50, inclusive, 19 Defendant. 20 21 In order to protect confidential information obtained by the parties in connection with this 22 case, the pa1ties, by and through their respective undersigned counsel and subject to the approval 23 of the Count, hereby agree as follows: Part One: Use Of Confidential Material_s In Di_scoverv 24 25 1. Any party or non-party may designate as Confidential Information (by stamping 26 the relevant page or as otherwise set forth herein) any document or response to discovery which 27 that party or non-party considers in good faith to contain information involving trade secrets, or _ 28 ___ CIV533328 0RD Order 231729 l Illllllllllllllllllllllllll"Ill -. - ' -1- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000579 confidential business, financial, or personal information, including personal financial information about any individual or entity; information regarding any individual’s or entity’s banking relationship with any banking institution, including information regarding financial transactions or financial accounts, and any information regarding any individual or entity that is not otherwise available to the public, subject to protection under Rules 2.550, 2.551, 2.580, 2.585, 8.160, and 8.490 of the California Rules of Court or under other provisions of California law. Any party or non-party may designate as Highly Confidential Information (by stamping the relevant page or as \DOO\)O\ otherwise set forth herein) any document or response to discovery which that party or non-party considers in good faith to contain information involving highly sensitive trade secrets or 10 confidential business, financial, or personal information, the disclosure of which would result in 11 the disclosure 12 personnel, commercial, market, financial, or business information, or highly sensitive personal 13 information, subject to protection under Rules 2.550, 2.551, 2.580, 2585,8160, and 8.490 of the 14 California Rules of Court or under other provisions of California law. Where 15 response consists 16 information appears shall be so designated. 2. 17 of trade secrets or other highly sensitive research, development, production, of more than one page, the a document or first page and each page on which confidential A party or non-party may designate information disclosed during a deposition or in 13 response to written discovery as Confidential Information or Highly Confidential Information by 19 so 20 a separate 21 within thirty (30) days after receipt of said responses or of the deposition transcript for which the indicating in said responses or on the record at the deposition and requesting the preparation of transcript of such material. In addition, designation is proposed, that specific pages a party or non-party may designate in writing, of the transcript and/or specific responses be treated Confidential Information or Highly Confidential Information. Any other party may object to 23 as 24 such proposal, in writing or on the record. Upon such objection, the parties shall 25 procedures described in Paragraph 9 below. Until the thirty (30) day period for designation has 26 lapsed, the entirety 27 After the thirty (30) day period for designation has lapsed, any documents or information 2s designated pursuant to the procedure set forth in this paragraph shall be treated according to the of each deposition transcript shall be treated as follow the Confidential Information. -2- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000580 designation until the matter is resolved according to the procedures described in Paragraph 9 below, and counsel for all parties shall be responsible for marking all previously unmarked copies of the designated material in their possession or control with the specified designation. A party that makes original documents or materials available for inspection need not designate them as Confidential Information or Highly Confidential Information until after the inspecting party has indicated which materials it would like COpied and produced. During the inspection and before the \) designation and copying, all of the material made available for inspection shall be considered Highly Confidential Information. ‘ All Confidential Information or Highly Confidential Information produced or 3. exchanged in the course of this Case (not including information that is publicly available) used by the party or parties to whom the information is produced solely case. Confidential Information or shall be for the purpose of this Highly Confidential Information shall not be used for any commercial competitive, personal, or other purpose. Confidential Information or Highly Confidential Information must be stored and maintained by a receiving party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Stipulated Protective Order. The protections conferred by this Stipulated Protective Order cover not only the Confidential Information or Highly Confidential Information produced or exchanged in this case, but also (1) any information copied or extracted from or reflecting the Confidential Information or Highly Confidential Information; (2) all copies, excerpts, summaries, or compilations of Confidential Information or Highly Confidential Information; and (3) any testimony, conversations, or presentations by parties or their counsel that might reveal Confidential Information or Highly Confidential Information. However, the protections conferred by this Stipulated Protective Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a receiving party or becomes part of the public domain after its disclosure to a result involving a a receiving party as of publication not violation of this Stipulated Protective Order, including becoming part of the public record through trial or otherwise; and (b) any information known to the receiving party prior to -3- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000581 the disclosure or obtained by the receiving party after the disclosure from a source who obtained the information lawfully and under no obligation 4. of confidentiality to the designating party. Except with the prior written consent of the other parties, or upon prior order of this Court obtained upon notice to opposing counsel, Confidential Information shall not be disclosed to any person other than: (a) counsel for the respective parties to this litigation, including in-house counsel and co-counsel retained for this litigation; \DOO\]O\ of such counsel; (b) employees (C) individual parties or officers or employees of a party, to the extent deemed necessary by counsel for the prosecution or defense 10 of this litigation; (d) consultants or expert witnesses retained for the prosecution or defense of of the 12 this litigation, provided that each such person shall execute a copy 13 Certification annexed to this Order (which shall be retained by counsel to 14 the party so disclosing the Confidential Information and made available 15 for inspection by opposing counsel during the pendency or after the 16 termination of the action only upon good cause shown and upon order of 17 the Court) before being shown or given any Confidential Information, and 18 provided that 19 opposing party or one 20 opposing party, or designating non-party, before disclosing any 21 Confidential Information to that individual and shall give the opposing 22 party an opportunity to move for a protective order preventing or limiting 23 such disclosure; if the party chooses a consultant or expert employed by the of its competitors, the party shall notify the of the Confidential Information or a custodian; 24 (e) any authors or recipients 25 (f) the Court, court personnel, and court reporters; and 26 (g) witnesses (other than persons described in Paragraph 4(e)). A witness shall 27 sign the Certification before being shown a confidential document. 28 Confidential Information may be disclosed to a witness who will not sign .-4- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIVS33328 BG000582 the Certification only in a deposition at which the party who designated the Confidential Information is represented or has been given notice that Confidential Information produced by the party may be used. At the request 4:. of any party, the portion of the deposition transcript involving the Confidential Information shall be designated “Confidential” pursuant to Paragraph 2 above. Witnesses shown Confidential Infonnation shall not be \lONL/I allowed to retain copies. 5. Except with the prior written consent of the other parties, or upon prior order of this Court obtained after notice to opposing counsel, Highly Confidential Information shall be 10 treated in the same manner as Confidential Information pursuant to Paragraph 4 above, except 11 that it shall not be disclosed to individual parties or directors, officers or employees of a party, or to witnesses (other than persons described in Paragraph 4(a) or 4(e)). 13 14 6. Any persons receiving Confidential Information or Highly Confidential Information shall not reveal or discuss such information to or with any person who is not entitled to receive such information, except as set forth herein. If a party or any of its representatives, l6 including counsel, inadvertently discloses any Confidential Information or Highly Confidential l7 Information to persons who are not authorized to use or possess such material, the party shall l8 provide immediate written notice of the disclosure to the party whose material was inadvertently 19 disclosed. 20 Information is being used or possessed by 21 regardless If a party has actual knowledge that Confidential Information or Highly Confidential of how the material immediate written notice a person not authorized to use or possess that material, was disclosed or obtained by such person, the party shall provide of the unauthorized use or possession to the party whose material is 23 being used or possessed. No party shall have an affirmative obligation to inform itself regarding 24 such possible use or possession. 25 7. In connection with discovery proceedings as to which a party submits Confidential 26 Information or Highly Confidential Information, all documents and chamber copies containing 27 Confidential Information or Highly Confidential Information which are submitted to the Court 28 shall be filed with the Court in sealed enveIOpes or other appropriate sealed containers. On the -5- STH’ULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000583 outside of the envelopes, a copy of the first page of the document shall be attached. If Confidential Information or Highly Confidential Information is included in the first page attached to the outside of the envelopes, it may be deleted from “CONFIDENTIAL” shall the outside copy. The word be stamped on the envelope and a statement substantially in the following form shall also be printed on the envelope: “This envelope is sealed pursuant to Order of the Court, contains Confidential Information and is not to be opened or the contents revealed, except by Order of the Court or agreement by the parties.” OKDOO\]O\ 8. A party may designate as Confidential Information or Highly Confidential Information documents or discovery materials produced by a non-party by providing written 11 notice to all parties of the relevant document numbers or other identification within thirty (30) 12 days after receiving such documents or discovery materials. Until the thirty (30) day period for 13 designation has lapsed, any documents or discovery materials produced by a non-party shall be 14 treated at Confidential Information. Any party or non-party may voluntarily disclose to others 15 without restriction any information designated by that party or nonparty 16 Information or Highly Confidential Information, although 17 status 18 Highly Confidential Information in compliance with this Order, that production shall be deemed 19 to have been made consistent with any confidentiality or privacy requirements mandated by local, 20 state or federal laws. 21 a as Confidential document may lose its confidential if it is made public. If a party produces materials designated Confidential Information or 9. If a party contends that any material is not entitled to confidential treatment, such 22 partymay at any time give written notice to the party or non-party who designated the material. 23 The party or non-party who designated the material shall have twenty (20) days from the receipt 24 of such written notice to apply to the Court for an order designating the material 25 The party or non-party seeking the order has the burden 26 entitled to protection. as confidential. of establishing that the document is 27 28 -6- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000584 Notwithstanding any challenge to the designation of material 10. as Information or Highly Confidential Information, all documents shall be treated be subject to the provisions hereof unless and until one (a) Confidential as such and shall of the following occurs: the party or non-party who claims that the material is Confidential (11-w Information or Highly Confidential Information withdraws such designation in writing; or (b) OO\IO\ the party or non-party who claims that the material is Confidential Information or Highly Confidential Information fails to apply to the Court for an order designating the material confidential within the time period specified above after receipt of a written challenge to such designation; or (c) the Court rules the material is not Confidential Information or Highly Confidential Information. All provisions of this Order restricting the communication or use of Confidential 11. Information or Highly Confidential Information shall continue to be binding after the conclusion of this action, possession unless otherwise agreed or ordered. Upon conclusion of the litigation, a party in the of Confidential Information or Highly Confidential Information shall within sixty (60) days either (a) return such documents to counsel for the party or non-party who provided such information, or (b) destroy such documents. Whether the Confidential Information or Highly Confidential Information is retumed or destroyed, the receiving party must submit a written certification to the producing party (and, if not the same person or entity, to the designating party) by the 60 day deadline that (1) all the Confidential Information or Highly Confidential Information that was returned or destroyed, and (2) affirms that the receiving party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Confidential Information or Highly Confidential Information. Notwithstanding this provision, counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Confidential Information or Highly Confidential -7- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000585 Information. Any such archival copies that contain or constitute Confidential Information or .Highly Confidential Information remain subject to this Stipulated Protective Order. The ALAN conclusion of the litigation shall be deemed to be the later of (l) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, \IONUI including the time limits for filing any motions or applications for extension of time pursuant to applicable law. After the conclusion of this action, this Court will retainjurisdiction to enforce the terms of this Order. 12. Nothing herein shall be deemed to waive any applicable privilege or work product protection, or to affect the ability of a party to seek relief for an inadvertent disclosure of material protected by privilege or work product protection. Any witness or other person, firm or entity from which discovery is sought may be informed of and may obtain the protection of this Order by written advice to the parties’ respective counsel or by oral advice at the time of any deposition or similar proceeding. 13. In the event that any Confidential Information or Highly Confidential Information is inadvertently produced without such designation, the party or non—party that inadvertently produced the information without designation shall give written notice of such inadvertent production promptly after the party or non-party discovers the inadvertent failure to designate (but no later than fourteen (14) calendar days after the party or non-party discovers the inadvertent failure to designate), together with a further copy of the subject information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” (the “Inadvertent Production Notice”). Upon receipt of such Inadvertent Production Notice, the party that received the information that was inadvertently produced without designation shall promptly destroy the inadvertently produced information and all copies thereof, or, at the expense of the producing party or non-party, return such together with all copies of such information to counsel for the producing party and shall retain only the newly-produced versions of that information that are designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” This provision intended to apply to any inadvertent production is not of any information or materials protected by -8- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000586 attorney-client or work product privileges, which inadvertent production is governed by Section 14 below. 14. In the event that any party or non-party inadvertently produces information that is privileged or otherwise protected from disclosure during the discovery process (“Inadvertent Production Material”), the following shall apply: (a) Such inadvertent production or disclosure shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of attorney-client privilege, attorney \OOO\I0'\ work product protection, or other applicable protection in this case or any other federal or state proceeding, provided that the producing party shall notify the receiving party in writing of such 10 protection or privilege promptly after the producing party discovers such materials have been 11 inadvertently produced. 12 (b) If a claim of inadvertent production is made, pursuant to this Stipulated of another party, that 13 Protective Order, with respect to discovery material then in the custody 14 party shall: (i) refrain from any further examination or disclosure of the claimed Inadvertent 15 Production Material; (ii) promptly make a good-faith effort to return the claimed Inadvertent 16 Production Material and all copies thereof (including summaries and excerpts) to counsel for the 17 producing party, or destroy all such claimed Inadvertent Production Material (including 18 summaries and excerpts) and certify in writing to that fact; and 19 claimed Inadvertent Production Material for any purpose until further order 20 authorizing such use. 21 (c) (iii) not disclose or use the of the Cou1t expressly A party may move the Court for an order compelling production of the Inadvertent Production Material on the ground that it is not, in fact, privileged or protected. The 23 motion shall be filed under seal and shall not assert as a ground for entering such an order the fact 24 or circumstance of the inadvertent production. The producing party retains the burden of 25 establishing the privileged or protected nature 26 information. While such a motion is pending, the Inadvertent Production Material at issue shall 27 be treated in accordance of any inadvertently disclosed or produced with Paragraph 14(b) above. 28 -9- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000587 If a party, in reviewing discovery material it has received from any other (d) party or any non-party, finds anything the reviewing party believes in good faith may be Inadvertent Production Material, the reviewing party shall: (i) refrain from any further examination or disclosure of the potentially Inadvertent Production Material; (ii) promptly identify the material in question to the producing party (by document number or other equally precise description); and (iii) give the producing party seven (7) days to respond as to whether the producing party will make a claim of inadvertent production. If the producing party makes such a claim, the provisions of Paragraphs 14(a)-(c) above shall apply. 15. The parties agree that should the production of source code become necessary, 10 they will need to amend or supplement the terms of this Order. To the extent production 11 source code becomes necessary in this case, the parties 12 amendments to this Order to cover any production 16. 14 compels disclosure 15 receiving party must: 17 (a) include a copy 18 will work expeditiously to propose of source code. If a party is served with a subpoena or a court order issued in other litigation that 13 16 of of any Confidential Information or Highly Confidential Information, the promptly notify in writing the designating party. Such notification shall of the subpoena or court order; (b) promptly notify in writing the paity who caused the subpoena or order to of the material covered by the subpoena or order 19 issue in the other litigation that some or all 20 subject to this Stipulated Protective Order. Such notification shall include a copy 21 Stipulated Protective Order; and 22 (c) is of this cooperate with respect to all reasonable procedures sought to be pursued by 23 the designating party whose Confidential Information or Highly Confidential Information may be 24 affected. If the designating party timely seeks a protective order, the party served with the subpoena 26 or court order shall not produce any Confidential Information or Highly Confidential Information 27 before a determination by the court from which the subpoena or order issued, unless the party has 28 obtained the designating party’s permission. The designating party shall bear the burden and -10- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000588 expense of seeking protection in that court of its c0nfidential material—and nothing in these provisions should be construed as authorizing or encouraging a receiving party in this action to disobey a lawful directive from another court. 17. .p. The following additional terms apply to non-party discovery material: The terms (a) of this Order are applicable to information produced by a non- party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” \DOONONU‘I Such information produced by non-parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting 10 a non—party from seeking additional protections. In the event that (b) a party is required, by a valid discovery request, to 11 produce a non-party’s confidential information in its possession, and the party is subject to an 12 agreement with the non-party not to produce the non-party’s confidential information, then the 13 party shall: i. 14 promptly notify in writing the requesting party and the non-party 15 that some or all of the information requested is subject to a confidentiality agreement with a non- 16 party; ii. 17 promptly provide the non-patty with a copy of the Stipulated 18 Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 19 description of the information requested; and iii. 20 21 22 make the information requested available for inspection by the non- party. (c) If the non-party fails to object or seek a protective order from this Court 23 within 28 days of receiving the notice and accompanying information, the receiving party may 24 produce the non-party’s confidential information responsive to the discovery request. If the non- party timely seeks a protective order, the receiving party shall not produce any information in its 26 possession or control that is subject to the confidentiality agreement with the non—party before a 27 determination by the Court. Absent a court order to the contrary, the non-party shall bear the 28 -11- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000589 burden and expense h) of seeking protection in this Court of its Confidential Information or Highly Confidential Information. 18. 90 Nothing in this Stipulated Protective Order shall be construed to preclude any ii party from asserting in good faith that certain Confidential Information or Highly Confidential Ln Information requires additional protections. The parties shall meet and confer to agree upon the 0\ terms \J waives any right it otherwise would have to object to disclosing or producing any information or of such additional protection. By stipulating to the entry of this Protective Order no party item on any ground not addressed in this Stipulated Protective Order. Similarly, no party waives any right to object on any ground to use in evidence of any of the material covered by this Stipulated Protective Order. Nothing in this Stipulated Protective Order abridges the right of any person to seek its modification by the Court in the future. Part Two: Use of Confidential Materials in Court The following provisions govern the treatment of Confidential Information or Highly Confidential Information used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings. These provisions are subject to Rules 2.550, 2.551, 2.580, 2.585, 8.160, and 8.490 of the Califomia Rules of Court and must be construed in light of those Rules. 19. A party that files with the Court, or seeks to use at trial, materials designated as Confidential Information or Highly Confidential Information, and who seeks to have the record containing such information sealed, shall submit to the Court a motion or an application to seal, pursuant to California Rule 20. of Court 2.551. A party that files with the Court, or seeks to use at trial, materials designated as Confidential Information or Highly Confidential Information by anyone other than itself, and who does not seek to have the record containing such information sealed, shall comply with either of the following requirements: (a) At least ten (10) business days prior to the filing or use of the Confidential Information or Highly Confidential Information, the submitting party shall give notice to all other parties, and to any non-party that designated the -12- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 BG000590 materials as Confidential Information or Highly Confidential Information pursuant to this Order, of the submitting party’s intention to file or use the Confidential Information or Highly Confidential Information, including specific identification of the Confidential Information or Highly 4; Confidential Information. Any affected party or non-party may then file a motion to seal, pursuant to California Rule of Court 2.551(b); or \DOO\10\£11 (b) At the time of filing or desiring to use the Confidential Information or Highly Confidential Information, the submitting party shall submit the materials pursuant to the lodging-under-seal provision of California Rule of 10 Court 2.551(d). Any affected party or non-party may then file a motion to 11 seal, pursuant to the California Rule 12 business days after such lodging. Documents lodged pursuant to California 13 Rule 14 be unsealed upon expiration 15 motion to seal pursuant to Rule 2.551(b) or Court order. 16 21. of Court 2.551(b), within ten (10) of Court 2.551(d) shall bear a legend stating that such materials of ten (10) business days, absent the shall filing of a In connection with a request to have materials sealed pursuant to Paragraph 12 or of Court 2.55 1(b)( 1) 17 Paragraph 13, the requesting party’s declaration pursuant to California Rule 18 shall contain sufficient particularity with respect to the particular Confidential Information or 19 Highly Confidential Information and the basis for scaling to enable the Court to make the findings 20 required by California Rule 21 IT IS of Court 2.550(d). SO STIPULATED. 22 23 DATED: , 2016 PERKINS COIE LLP 24 25 By: Julie E. Schwartz 26 Attorneys for Defendant Facebook, Inc. 27 28 -13- STTPIILIXIHEI)[Id{()P()Sli[fl PIKCYFE(III\/EE()RI)EI{ CASE NO. CIV533328 BG000591 DATED: , 2016 BIRNBAUM & GODKIN, LLP N By: David Godkin Attorneys for Plaintiff SIX4THREE, LLC WVONM-h-w IT IS SO ORDERED. DATED: ”[517 am C. ( Sent time: 051295201 8 02:27:57 PM To: David Godkm; James Kruzer Subject: Amicus Brief Attachments: Application for Leave to File Amicm. Brief v3.docx Thanks for the call just now. Please pass this along to your team. Please ?nd attached a template brief. You could simply ?ll in the yellow highlights here. tweak the language around media to describe NGOs. and note that while you take no position on Plaintiffs claims, Plaintiff provided legal research to expedite the drafting of the brief (see rule below). You could then ?le as is. Shouldn't take more than a couple hours all in. The template makes clear that you take no position on any claims or defenses and do not support either party. In case you have questions on whether amicus is appropriate procedure, see below the relevant section of the main case on the issue of intervening versus amicus when media seek to unseal records in CA state court. The case is Overstock.com, Inc. v. Goldman Sachs Group. Inc. (2014} 231 Cal.ADD-4th 471. 488490 [180 Ca .RDtr.3d 234]. Also. below Overstock, you will ?nd the only relevant rule regarding amicus ?lings. This is an appellate court rule and so does not apply to the Superior Court. ljust wanted to make you aware of it nonetheless; we recommend complying in an abundance of caution. To comply, you would simply state that Plaintiff provided legal research to expedite drafting of the brief. Afew additional items to note: 0 The brief must be ?led with the clerk no later than June 6 to be heard on July 2. Many clerks in California trial courts are not familiar with amicus/intervenor ?ling procedures, though ?ling an amicus brief is clearly permitted at the Court's discretion. - We recommend ?ling with the clerk well in advance of the June 6 deadline in case the clerk needs to be educated on this procedure. We are happy to assist in this. 0 We also recommend ?ling a courtesy copy directly with the Judge to ensure he is aware of your intent to ?le the brief prior to the deadline. . The hearing is on July 2 at 9:00 am in Department 23 of the San Mateo Superior Court at 400 County Center, Redwood City, CA. We recommend having reporters at the hearing as the substantive motions will be argued at that time. Please let us know ifyou have any other questions. We'll pass along Facebook's motion end of day. Our interactions with FTC staff have included ?in the bureau of consumer protection and- chieffor criminal liaison unit. lwould love to pro your rain ont int near future. Regards. Tom (Overstock.com, Inc. v. Goldman Sachs Group. Inc. (2014) 231 Cal.App.4th 471. 488?490 [180 Cal.Rbtr.3d 2341.) The sealed records rules expressly permit the public. which includes members ofthe press, to seek the unsealing of court records. (Rule Rule 2.551 ?provides procedural ?exibility to third parties seeking to unseal court records, including'?in addition to noticed proceedings in the trial court??the vehicle of initiating an original proceeding in the reviewing court by way of a petition for writ of mandate to compel the lower court to unseal records that were improperly sealed.? (Savaglio, supra. 149 Cal.App.4th at pp. 601-603.) Rule thus. re?ects the Judicial Council's implementation of NBC Subsidiary's admonition that ?representatives of the press and general public ?must be given an opportunity to be heard on the question of their exclusion.? (NBC Subsidiary, supra. 20 Cal.4th at p. 1217. fn. 36.) (9) Here the media asserts. as it has in other cases. that it also has a right to participate in proceedings to seal court records and further contends it is entitled to do so as an intervener. And HN11 some cases have noted in passing the media was allowed to intervene to oppose a motion to seal. In re [*489] Marriage of Burkle (2006) 135 Cal.App.4th 1045. 1050 [37 Cal. Rptr. 3d 805] (Budde); Fagan v. Superior ["250] Court (2003) 111 Cal.App.4th 607. 611 [4 Cal. Rptr. 3d 239].) However. after examining the nature and parameters of intervention. Savaglio concluded it was not the proper procedure for media participation, even in connection with the unsealing of court records. (Savaglio, supra, 149 Cal.App.4th at p. 602.) The newspaper seeking leave to intervene in that case ?mistakenly equate[d] intervention with pursuing a motion to seal. They are not the same. The right to intervene. whether conditional or unconditional. is the right to become a party to pending litigation. As applied to matters of law. ?to intervene? means interpose in a lawsuit so as to become a party to it." (Estate of Ghio (1910) 157 Cal. 552. 559?560 [108 P. 516].) In civil law intervention is ?[t]he act by which a third party becomes a party in a suit pending between other persons.? (Id. at p. 560.) By allowing a member ofthe public to ?le a motion to unseal records. rule 2.551(h) provides a mechanism for third parties to correct overbroad or unsubstantiated sealing orders. but it does not transform that member of the public into a party to the lawsuit.? (Savaglio. at pp. 602?603.) We agree with Savaglio that intervention pursuant to Code of Civil Procedure section 387 is not a means by which nonparties can participate in proceedings to seal or unseal court records. This does not mean. however. media participation in proceedings to seal court records is improper. even though the sealing rules provide for participation only in proceedings to unseal court records. The courts have ample authority to allow media participation as amici curiae. (See. In re Marriage Cases (2008) 43 Cal.4th 757, 791?792, fn. 10 [76 Cal. Rptr. 3d 683. 183 P.3d 384] [superior courts retain ?broad discretion over the conduct of pending litigation? and have ?the authority to determine the manner and extent of entities' participation as amici curiae that would be of most assistance to the court']; Cromer v. Superior Court (1980) 109 Cal. App. 3d 728 731 [167 Cal Rptr. 671] [court ?aided by briefs of amici curiae representing interests of the news media and the public generally']; Apple Inc. v. Samsung Electronics Co. (Fed. Cir. 2013) 727 F.3d 1214 1220 (Apple) [trial court denied motion to intervene on sealing Issues but both it and appellate court granted media leave to appear as amici curiae]. Here, the trial court rejected the media's attempt to intervene in connection with the sealing motions pertaining to plaintiffs' effort to ?le a ?fth amended complaint on the ground the media had not properly applied to intervene, but granted applications to intervene in connection with the sealing motions pertaining to defendants' summary judgment motions. Allowing the media to intervene in connection with the second round of sealing motions was, for the [?490] reasons we have explained. improper. For the same reason, there is no merit to the media's claim the court erred in not allowing them to intervene in connection with the first round of sealing motions ?led in connection with the proposed ?fth amended complaint. As to the initial motions, however, the media were essentially allowed to participate as amici curiae, and they were not entitled to any other status. Rule 8.200. Briefs by parties and amici curiae (3) Parties' briefs (1) Each appellant must serve and ?le an appellant's opening brief. (2) Each respondent must serve and ?le a respondent's brief. (3) Each appellant may serve and ?le a reply brief. (4) No other brief may be ?led except with the permission ofthe presiding justice. unless it quali?es under or (5) Instead of?ling a brief. or as part of its brief. a party may join in or adopt by reference all or part of a brief in the same or a related appeal Supplemental briefs after remand or transfer from Supreme Court (1) Within 15 days after ?nality of a Supreme Court decision remanding or order transferring a cause to a Court of Appeal for further proceedings. any party may serve and ?le a supplemental opening brief in the Court of Appeal. Within 15 days after such a brief is ?led. any opposing party may serve and ?le a supplemental responding brief. (2) Supplemental briefs must be limited to matters arising after the previous Court of Appeal decision in the cause, unless the presiding justice permits brie?ng on other matters. (3) Supplemental briefs may not be ?led ifthe previous decision of the Court of Appeal was a denial of a petition for a writ within its original jurisdiction without issuance of an alternative writ or order to show cause. (Subd adopted effective January 1, 2003.) Amicus curiae briefs (1) Within 14 days afterthe last appellant's reply brief is ?led or could have been ?led under rule 8.212, whichever is earlier, any person or entity may serve and ?le an application for permission of the presiding justice to ?le an amicus curiae brief. For good cause. the presiding justice may allow later ?ling. (2) The application must state the applicant's interest and explain how the proposed amicus curiae brief will assist the court in deciding the matter. (3) The application must also identify: (A) Any party or any counsel for a party in the pending appeal who: Authored the proposed amicus brief in whole or in part; or (ii) Made a monetary contribution intended to fund the preparation or submission ofthe brief: and (B) Every person or entity who made a monetary contribution intended to fund the preparation or submission of the brief. other than the amicus curiae. its members. or its counsel in the pending appeal. (4) The proposed brief must be served and must accompany the application, and may be combined with it. (5) The covers of the application and proposed brief must identify the party the applicant supports, ifany. (6) If the court grants the application. any party may ?le an answer within the time the court speci?es. The answer must be served on all parties and the amicus curiae. (I) The Attorney General may ?le an amicus curiae brief without the presiding justice's permission. unless the brief is submitted on behalf of another state of?cer or agency. The Attorney General must serve and ?le the brief within 14 days after the last appellant's reply brief is ?led or could have been ?led under rule 8.212. whichever is earlier. and must provide the information required by (2) and comply with (5). Any party may serve and ?le an answer within 14 days after the brief is ?led. (Subd (0) amended effective January 1, 2009; adopted as subd effective January 1. 2002; previously relettered effective January 1. 2003; previously amended effective January 1, 2007, and January 1. 2008.) Cal Rules of Court. Rule 8.200 33000122 1 3 [Attorney name (Bar No. ) Address Line 1 Address Line 2 Tel: Fax: ] 4 Attorney for Amicus Curiae [Name of Organization] 2 5 SUPERIOR COURT OF CALIFORNIA 6 COUNTY OF SAN MATEO 7 8 9 10 11 12 13 14 15 16 SIX4THREE, LLC, a Delaware limited Liability company, Plaintiff, v. FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; JAVIER OLIVAN, an individual; SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1 through 50, inclusive, Defendants. Case No. CIV533328 Assigned For All Purposes to Hon. V. Raymond Swope, Dept. 23 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO SEAL PLAINTIFF’S ANTI-SLAPP OPPOSITION HEARING DATE: July 2, 2018 HEARING TIME: 9:00 a.m. DEPARTMENT 23 JUDGE: Hon. V. Raymond Swope FILING DATE: April 10, 2015 TRIAL DATE: April 25, 2019 17 18 19 20 21 22 23 24 25 26 27 28 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO SEAL; Case No. CIV533328 BG000123 1 [Name of Organization] respectfully requests leave of this Court to file an amicus curiae 2 brief in support of Plaintiff’s Opposition to Defendants’ Motion to Seal Plaintiff’s Anti-SLAPP 3 Opposition. [Name of Organization] has a strong interest in promoting an informed public debate 4 regarding Defendants’ management of the Facebook Platform. [Name of Organization] has 5 reported extensively on these issues, which have long been in the public domain. As such, [Name 6 of Organization’s] experience with these issues may aid this Court in its consideration of the 7 factual and legal issues raised in this matter. Accordingly, [Name of Organization] requests leave 8 to file the amicus curiae brief attached as Exhibit A hereto. See Jersey Maid Milk Products Co. v. 9 Brock (1939) 13 Cal.2d 661, 665 [91 P.2d 599]; In re Veterans' Industries, Inc. (1970) 8 10 Cal.App.3d 902, 924-925 [88 Cal.Rptr. 303]; People ex rel. State Lands Com. v. Long Beach 11 (1960) 183 Cal.App.2d 271, 276; see also Cal. Rules of Court, Rule 8.200; 4 Witkin Cal. Proc., 12 Pleading § 215 (4th ed. 1997) at 278-280; CEB, California Civil Appellate Practice, § 14.66- 13 14.67. 14 15 1. [Name of Organization] is familiar with the history of Facebook and Facebook Platform, the issues involved in the case, and the pleadings and papers filed therein to date. 16 2. [Name of Organization] is [description of organization and its purpose]. 17 3. Over 2 billion people have relied upon or continue to rely upon Defendants to 18 manage Facebook Platform in a manner that respects the privacy of their digital information and 19 ensures their ownership and control over data they upload to the Platform. [Name of 20 Organization], as a media company, has a responsibility to promote an informed public debate 21 regarding Defendants’ management of the sensitive information and digital identities of almost 22 one-third of the world’s population. 23 4. Tens of millions of businesses rely upon Facebook Platform, which is one of the 24 largest economies globally with an economic impact dwarfing the GDP of most sovereign 25 nations, according to Facebook’s own estimates.1 [Name of Organization], as a media company, 26 27 28 1 See, e.g., https://newsroom.fb.com/news/2015/01/new-deloitte-report-looks-at-facebooksimpact-on-global-economy-jobs/. APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO SEAL; Case No. CIV533328 BG000124 1 1 has a responsibility to promote an informed public debate regarding the impact of Facebook 2 Platform on the economy, including any impacts on competition and consumer choice. 3 5. [Name of Organization] has [hundreds of thousands or millions] readers or 4 subscribers, many of whom are personally affected by the issues raised in this matter. All of these 5 readers or subscribers have a strong interest in full disclosure regarding Defendants’ management 6 of their data, including their management of third party access to such data. 7 6. As a result of media organizations like [Name of Organization] reporting on 8 Facebook Platform in 2018, a number of governments have opened investigations into 9 Facebook’s management of its Platform, including its management of user data and third party 10 data access. According to public announcements, government entities currently investigating 11 Facebook’s management of Platform and third party data access include the Attorneys General of 12 California, Massachusetts, Mississippi, Missouri, New Jersey, New York, Oregon, and 13 Washington; the United States Federal Trade Commission; and various European governments 14 and regulatory authorities.2 If true, Plaintiff’s allegations would directly refute a wide range of 15 statements Defendants have made in 2018 in response to inquiries by government authorities and 16 media organizations. As a respected national media organization, [Name of Organization] has a 17 strong interest and responsibility in reporting on these matters fully and truthfully to increase the 18 likelihood that the ongoing investigations proceed with the benefit of accurate and complete 19 information. 20 21 22 23 24 25 26 27 7. These strong interests of [Name of Organization] and its readership are threatened by Defendants’ Motion to Seal and their ongoing attempts to shield their internal 2 See https://ago.mo.gov/home/breaking-news/ag-hawley-issues-investigative-demands-tofacebook; https://ag.ny.gov/press-release/statement-ag-schneiderman-facebookcambridgeanalytica; http://www.ago.state.ms.us/releases/ag-hood-investigating-facebooks-user-privacypractices/; http://nj.gov/oag/newsreleases18/pr20180507b.html; https://oag.ca.gov/news/pressreleases/attorney-general-becerra-calls-facebook-protect-users-data; https://www.doj.state.or.us/ media-home/news-media-releases/ag-rosenblum-joins-coalition-demanding-answers-fromfacebook/; http://nwnewsnetwork.org/post/washington-oregon-attorneys-general-demandanswers-facebook; https://www.ftc.gov/news-events/press-releases/2018/03/statement-actingdirector-ftcs-bureau-consumer-protection; https://ico.org.uk/about-the-ico/news-and-events/newsand-blogs/2018/05/ico-statement-investigation-into-data-analytics-for-political-purposes/. 28 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO SEAL; Case No. CIV533328 BG000125 2 1 communications, decisions and processes from public view. These strong interests outweigh any 2 legitimate interest Defendants may have in sealing Plaintiff’s Anti-SLAPP Opposition and the 3 supporting declaration and exhibits. 4 8. [Name of Organization’s] purpose in filing an amicus brief is to alert this Court to 5 a significant public interest in understanding how Defendants have managed their data in light of 6 the ongoing public debate regarding Facebook Platform, the significant power Defendants wield 7 over individuals and businesses, and whether Defendants have lived up to the responsibility that 8 comes with that power. As such, [Name of Organization] does not seek to introduce new legal 9 theories or evidence. Further, while [Name of Organization] supports Plaintiff’s Opposition to 10 Defendants’ Motion to Seal, [Name of Organization] takes no position on any claims or defenses 11 asserted by either Party in this matter. Rather, [Name of Organization] submits this brief in order 12 to elaborate on some key issues raised by the parties regarding the importance of the public 13 interest in accessing true and accurate information regarding Defendants’ management of 14 Facebook Platform. 15 9. To this end, [Name of Organization’s] brief focuses on two key legal issues: (1) 16 whether the evidence sought to be unsealed is relevant to the public interest; and (2) whether 17 Defendants’ Motion to Seal meets the stringent requirements of Rule 2.550(d). 18 19 20 21 22 23 24 25 WHEREFORE, [Name of Organization] respectfully requests that this Court grant leave to file the amicus curiae brief attached as Exhibit A hereto. DATED: [ATTORNEY FIRM OR ORGANIZATION NAME] By: [Attorney Name] Attorney for Amicus Curiae [Organization Name] 26 27 28 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO SEAL; Case No. CIV533328 BG000126 3 EXHIBIT A BG000127 1 3 [Attorney name (Bar No. ) Address Line 1 Address Line 2 Tel: Fax: ] 4 Attorney for Amicus Curiae [Name of Organization] 2 5 SUPERIOR COURT OF CALIFORNIA 6 COUNTY OF SAN MATEO 7 8 9 10 11 12 13 14 15 16 SIX4THREE, LLC, a Delaware limited Liability company, Plaintiff, v. FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; JAVIER OLIVAN, an individual; SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1 through 50, inclusive, Defendants. Case No. CIV533328 Assigned For All Purposes to Hon. V. Raymond Swope, Dept. 23 BRIEF OF AMICUS CURIAE IN OPPOSITION TO DEFENDANTS’ MOTION TO SEAL PLAINTIFF’S OPPOSITION TO DEFENDANTS’ ANTI-SLAPP MOTIONS HEARING DATE: July 2, 2018 HEARING TIME: 9:00 a.m. DEPARTMENT 23 JUDGE: Hon. V. Raymond Swope FILING DATE: April 10, 2015 TRIAL DATE: April 25, 2019 17 18 19 20 21 22 23 24 25 26 27 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 BG000128 1 TABLE OF CONTENTS 2 3 4 5 6 7 8 9 10 INTRODUCTION ……………………………………….…………………………........... STATEMENT OF FACTS ….…………………………………………...………………... ARGUMENT….……………………………………………………………...………......... I. Legal Standard……………………………………………………………... II. Defendants’ Motion to Seal Should Be Denied As the Public Has a Strong Interest In Determining the Veracity of Plaintiff’s Allegations……. III. Defendants Cannot Meet the Stringest Requirements of Rule 2.550(d)..….. CONCLUSION……………………………………………………….………………......... 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 BG000129 i TABLE OF AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Page CASES H.B. Fuller Co. v. Doe, (2007) 151 Cal.App.4th 879 [60 Cal.Rptr.3d 501]……………………………. Huffy Corp. v. Superior Court, (2003) 112 Cal.App.4th 97 [4 Cal.Rptr.3d 823]………………………………. McNair v. National Collegiate Athletic Assn., (2015) 234 Cal.App.4th 25 [183 Cal.Rptr.3d 490]……………………………. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, (1999) 20 Cal.4th 1178 [86 Cal.Rptr.2d 778, 980 P.2d 337]………….............. Overstock.com, Inc. v. Goldman Sachs Group, Inc., (2014) 231 Cal.App.4th 471 [180 Cal.Rptr.3d 234]………………...…………. passim Williams v. U.S. Bank N.A., (E.D.Cal. 2013) 290 F.R.D. 600……………………………………………….. STATUTES AND OTHER AUTHORITIES C.R.C. 2.550 et seq……………………………………….…………………………...... passim 17 18 19 20 21 22 23 24 25 26 27 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 BG000130 ii 1 INTRODUCTION 2 3 4 5 6 [Name of Organization] (“Amicus”) respectfully submits this Brief in Opposition to Defendants’ Motion to Seal Plaintiff’s Opposition to Defendants’ Anti-SLAPP Motions and the Declaration of David S. Godkin In Opposition to Defendants’ Anti-SLAPP Motions, including all exhibits filed therewith. As detailed herein and in the papers filed by Plaintiff and the Defendants, 7 there is no dispute that this matter “greatly implicates the public interest.” See, e.g., Facebook’s 8 Special Motion to Strike (Anti-SLAPP), filed on November 21, 2017, at 2; Plaintiff’s Fifth 9 Amended Complaint (“5AC”), ¶ 6. Over 2 billion people have relied upon or continue to rely 10 11 12 13 14 upon Defendants to manage Facebook Platform in a manner that respects the privacy of their digital information and ensures their ownership and control over data they upload to the Platform. Further, tens of millions of businesses rely upon Facebook Platform, which is one of the largest economies globally with an economic impact dwarfing the GDP of most sovereign nations, 15 according to Facebook’s own estimates.1 Amicus has [hundreds of thousands or millions] readers 16 or subscribers, many of whom are personally affected by the issues raised in this matter. All of 17 these readers or subscribers have a strong interest in full disclosure regarding Defendants’ 18 management of data, particularly third party access to data. 19 20 21 As a result of media organizations reporting on Facebook Platform in 2018, a number of governments have opened investigations into Facebook’s management of its Platform with a 22 particular focus on its management of user data and third party data access in the 2011 to 2015 23 timeframe. According to public announcements, government entities currently investigating 24 Facebook’s management of Platform and third party data access include the Attorneys General of 25 California, Massachusetts, Mississippi, Missouri, New Jersey, New York, Oregon, and 26 27 28 1 See, e.g., https://newsroom.fb.com/news/2015/01/new-deloitte-report-looks-at-facebooksimpact-on-global-economy-jobs/. AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 1 BG000131 1 Washington; the United States Federal Trade Commission; and various European governments 2 and regulatory authorities.2 If true, Plaintiff’s allegations would directly refute a wide range of 3 4 5 6 statements Defendants have made in 2018 in response to inquiries by government authorities and media organizations regarding its management of Platform from 2011 to 2015. As a respected national media organization, Amicus has a strong interest and obligation to the public to report on 7 these matters fully and truthfully. Therefore, Amicus respectfully requests the Court deny 8 Facebook’s Motion to Seal as to all evidence submitted by Plaintiff in Opposition to Defendants’ 9 Anti-SLAPP Motions that is more than three years old and contains no bank statements or 10 11 12 account information, source code, non-public financial information, trade secrets, national security matters or sensitive personal information, such as credit card or social security data. STATEMENT OF FACTS 13 Amicus adopts and incorporates by this reference the statement of facts set forth in 14 15 Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendants’ Motion to Seal. 16 Further, Amicus adopts and incorporates by this reference the following exhibits to Plaintiff’s 17 Request for Judicial Notice (“RJN”) filed on May 17, 2018: 18 1. RJN Exhibits 1-27 – These exhibits consist of official statements, publications and 19 records by Facebook regarding Facebook Platform from 2007 through 2018. 20 21 22 23 24 25 26 27 2 See https://ago.mo.gov/home/breaking-news/ag-hawley-issues-investigative-demands-tofacebook; https://ag.ny.gov/press-release/statement-ag-schneiderman-facebookcambridgeanalytica; http://www.ago.state.ms.us/releases/ag-hood-investigating-facebooks-user-privacypractices/; http://nj.gov/oag/newsreleases18/pr20180507b.html; https://oag.ca.gov/news/pressreleases/attorney-general-becerra-calls-facebook-protect-users-data; https://www.doj.state.or.us/ media-home/news-media-releases/ag-rosenblum-joins-coalition-demanding-answers-fromfacebook/; http://nwnewsnetwork.org/post/washington-oregon-attorneys-general-demandanswers-facebook; https://www.ftc.gov/news-events/press-releases/2018/03/statement-actingdirector-ftcs-bureau-consumer-protection; https://ico.org.uk/about-the-ico/news-and-events/newsand-blogs/2018/05/ico-statement-investigation-into-data-analytics-for-political-purposes/. 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 2 BG000132 1 2. RJN Exhibits 28-35 – These exhibits consist of official records and communications 2 between the United States Federal Trade Commission and Facebook regarding 3 Facebook Platform and management of user data, including third party access to data, 4 from 2011 to 2012. 5 3. RJN Exhibits 52-67 – These exhibits consist of public statements and representations 6 7 by Facebook’s senior executives to various media organizations primarily in the 2010 8 to 2014 timeframe. 9 4. RJN Exhibits 72-200 – These exhibits consist of articles published by nationally 10 recognized media organizations regarding Facebook Platform and management of user 11 data, reporting on many of the issues raised in the instant matter, from 2007 to 2018. 12 13 As Plaintiff’s RJN demonstrates, the issues at the heart of this case have been widely reported on 14 in the media. Further, Defendants have voluntarily made statements and representations to the 15 media since 2007 regarding these issues and have therefore brought these issues into the public 16 17 18 19 20 sphere of their own accord. Amicus incorporates into the record the fact of Defendants’ publications and statements, and the associated media coverage, from 2007 to 2018, while taking no position on the truth or falsity of Defendants’ representations. Additional facts and citations to the record will be provided in the body of the argument as necessary. ARGUMENT 21 22 23 24 25 I. Legal Standard California recognizes a First Amendment right of access to civil litigation documents filed in court as a basis for adjudication of a non-discovery motion, such as this Anti-SLAPP Motion. 26 See C.R.C. 2.550 and 2.551; Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 27 Cal.App.4th 471, 485 [180 Cal.Rptr.3d 234]. Any sealing issues raised by the parties are to be 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 3 BG000133 1 resolved contemporaneous with the substantive underlying motion and shall not be delayed. Id., 2 at 473 (“Cal. Rules of Court, rule 2.550(a)(3), cannot be read in a way that necessarily delays the 3 4 5 6 resolution of sealing issues until after a trial court rules on the merits. Indeed, the courts have expressed concern about delayed rulings on sealing issues”); 495-496 (“access should be immediate and contemporaneous”) (quotations omitted). Prior sealing orders are subject to 7 “continuing review and modification by the trial judge” to ensure an “evolving view of the 8 propriety of sealing.” Id., at 482-483. The constitutional right of access to materials submitted as 9 a basis for adjudication applies to all submitted materials regardless of whether the trial court 10 11 12 13 14 relies upon them when ruling so long as they are not “irrelevant” to the matter being adjudicated (e.g., the Overstock court held that the bank balance of a party was irrelevant to the plaintiff’s arguments in support of its case). Id., at 473, 492, 508. An order denying a motion to seal or an order granting a motion to unseal does not require express factual findings, but an order granting 15 a motion to seal does. Id., at 488. A party, the Court, or any member of the public may seek to 16 unseal materials submitted in support of or in opposition to any substantive, non-discovery 17 motion. See C.R.C. 2.551(h)(2) (emphasis added). 18 19 20 21 Once the sealed record rules are triggered, as they are here, “court records are presumed to be open” and the Court “may order a record sealed only upon making express findings that (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the 22 overriding interest supports sealing the record; (3) a substantial probability exists that the 23 overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is 24 narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest.” See 25 Overstock (2014) 231 Cal.App.4th at 487; Rule 2.550(c)-(d). The Court must make express factual 26 27 28 findings supporting the sealing order and failure to do so makes the “order deficient”. See Overstock (2014) 231 Cal.App.4th at 487; Rule 2.550(e)(1)(A). AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 4 BG000134 1 II. Defendants’ Motion to Seal Should Be Denied As the Public Has a Strong Interest In Determining the Veracity of Plaintiff’s Allegations 2 3 4 5 6 7 8 9 The 5AC includes a wide range of allegations regarding issues that have been widely reported on in the media, and the public has a strong interest in getting to the bottom of these issues. This interest is heightened by the fact that three of the Defendants (Zuckerberg, Cox and Olivan) to this day maintain control over Facebook’s products and services. In fact, two of the Defendants (Cox and Olivan) were promoted in May 2018 to expand their control over virtually all of Facebook’s products and services; at the same time, Facebook announced plans to build 10 new platforms.3 In light of Defendants ongoing control over the data of more than 2 billion 11 people, the public has a strong interest in evidence pertaining to the following allegations: 12 1. The 5AC alleges that in 2011 and 2012 Zuckerberg held discussions with a select group 13 of executives in which they agreed upon a scheme to weaponize user data and violate 14 user privacy in order to transition Facebook’s collapsing desktop advertising business to 15 16 mobile advertising using a vague policy called “reciprocity”. 5AC ¶¶ 85, 209. These 17 issues have been reported in the media. See, e.g., Plaintiff’s RJN, Exs. 72, 76, 81. Further, 18 any evidence submitted in support of these allegations is now more than five years old 19 and should be released to the public. 20 2. 21 executives to continue to induce third parties to rely on data Zuckerberg had already 22 decided to privatize while approaching a select group of companies to shut down under 23 24 25 26 27 The 5AC alleges that in late 2012 and early 2013, Zuckerberg instructed senior 3 Facebook announced in May 2018 an executive management reshuffle that consolidates the power of Cox and Olivan in the company and creates an entire division at the company devoted to building new “platforms.” See, e.g., https://www.vanityfair.com/news/2018/05/facebookexecutive-reorganization (Facebook announces executive reshuffle on May 8, 2018 in which Cox now oversees Facebook, Instagram, WhatsApp and Facebook Messenger, and Olivan oversees all other central product services including growth, advertising, security, integrity, privacy and other critical functions). 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 5 BG000135 1 the guise of the reciprocity policy in order to force them to buy unrelated mobile ads. 2 5AC ¶¶ 85, 211-213, 238, 295. These issues have been reported in the media. See, e.g. 3 4 5 6 Plaintiff’s RJN, Exs. 72, 152. Further, any evidence submitted in support of these allegations is now more than five years old and should be released to the public. 3. The 5AC alleges that in 2013 Facebook expanded its scheme to weaponize user data by 7 blacklisting and whitelisting companies based on their willingness to purchase mobile ads 8 and their degree of competitiveness with Facebook’s own future products in order to 9 determine the winners and losers in a wide range of consumer software markets, 10 11 12 13 14 including messaging, professional services, contact management, gifting, payment, sharing economy, utility, file sharing, birthday reminder, photo and video, calendar, lifestyle and health and fitness apps. 5AC ¶¶ 16-18, 88-90, 212. These issues regarding anti-competitive conduct have been reported in the media. See, e.g., Plaintiff’s RJN, Exs. 15 72, 152. Further, any evidence submitted in support of these allegations is now more than 16 four years old and should be released to the public. 17 18 19 20 21 4. The 5AC alleges that in the second half of 2013 and first half of 2014 Defendants created and disseminated a fraudulent narrative that falsely portrayed major Platform changes announced on April 30, 2014 as being justified by user privacy concerns in order to wipe out 40,000 consumer software applications to make way for Facebook’s new products 22 and services. 5AC ¶¶ 23-27, 85, 223-226. These issues regarding anti-competitive 23 conduct have been reported in the media. See, e.g., Plaintiff’s RJN, Exs. 72, 152, 165. 24 Further, any evidence submitted in support of these allegations is now more than four 25 years old and should be released to the public. 26 27 28 5. The 5AC alleges that from 2012 to 2015, Defendants used Facebook’s willful failure to implement proper privacy controls to violate the privacy of hundreds of millions of AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 6 BG000136 1 consumers in a wide range of projects, including projects widely reported in the media 2 like tracking competitors using improperly obtained Onavo data, tracking the text and call 3 4 5 6 logs of Android users without consent, developing shadow profiles of non-Facebook users by tracking their text and call logs without consent, turning the Bluetooth setting on the phone on without user permission, causing privacy settings to lapse after a period of 7 time, and willfully ignoring privacy settings for certain popular Facebook features. 5AC 8 ¶¶ 226-233. See, e.g., Plaintiff’s RJN, Exs. 99, 138, 141, 172, 176, 181, 183. 9 The public has a fundamental interest in determining the veracity of these allegations, which 10 11 12 13 14 15 16 17 18 19 cannot be overridden by any legitimate interest Defendants may have to keep the records sealed. In fact, if Defendants’ representations are true, then unsealing the evidence will vindicate Defendants, which the public also has a strong interest in knowing given the immense trust the public places in Defendants to safeguard their digital identities and personal information. III. Defendants Cannot Meet the Stringest Requirements of Rule 2.550(d) Defendants contend that their overriding interest in sealing Plaintiff’s Opposition to Defendants’ Anti-SLAPP Motion and Plaintiff’s supporting declaration and exhibits arises out of the fact that they contain Facebook’s internal strategic analyses and business discussions, the 20 release of which could damage Facebook’s business and business relationships and its 21 relationships with third parties. Defendants provide no additional information regarding how and 22 why any specific document will damage any current business relationship. Defendants further 23 provide no nexus between information that is now more than three years and up to ten years old 24 25 26 27 and any current legitimate interest Facebook may have today. Defendants do not identify any specific information as being subject to any ongoing confidentiality obligation under a currently enforceable contract with a third party. 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 7 BG000137 1 2 3 4 5 6 Rather, Defendants have asserted generically that they have an overriding interest in avoiding embarrassment to their business reputation and in preventing the release of information that may or may not implicate them in unlawful conduct. See, Huffy Corp. v. Superior Court (2003) 112 Cal.App.4th 97, 108 [4 Cal.Rptr.3d 823] (“Defendant has failed to demonstrate an overriding interest to permit sealing this type of admission…. [N]o overriding public interest 7 warrants secreting from the public documents filed in its courts that there may have been 8 violations of…laws.”); McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 9 35-36 [183 Cal.Rptr.3d 490] (“There must be a specific showing of serious injury. [S]pecificity is 10 11 12 13 14 essential. Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient.”) (quotations and citations omitted). No court has found an overriding interest under Rule 2.550(d) in discussions, emails and documents that: (1) are more than three years old, and in many cases five or six years old; (2) contain no personally identifiable information, bank 15 statements or accounts, source code, financial information, trade secrets, or material subject to a 16 current confidentiality or contractual obligation; and (3) concern conduct that has been widely 17 and voluntarily disclosed by Defendants in the public sphere and the media.4 A much higher 18 19 20 21 22 23 24 25 26 27 28 See, e.g., Overstock (2014) 231 Cal.App.4th at 482 (“The court next concluded, as to a significant number of the materials, defendants' declarations were conclusory and unpersuasive, and lacked the specific facts necessary to support sealing. The court additionally concluded plaintiffs had persuasively show[n] many of the documents no longer had sufficient indicia of confidentiality to warrant sealing. In sum, [g]iven (1) that this case was filed in February 2007, more than five years ago, (2) that most, if not all, of the transactions reflected in the documents are at least four years old, (3) that many of the allegedly confidential business practices and trading strategies are outdated due to changes in federal law, and (4) that much of the material at issue was publicly disclosed at the January 5, 2012 hearing on the motions for summary judgment, the trial court observed, defendants' failure to present specific facts to justify sealing the documents at issue is understandable.”) (quotations and citations omitted); H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894-898 [60 Cal.Rptr.3d 501] (party seeking to seal records “never identified any specific facts disclosure of which would harm any identified interest” but instead simply stated that the material included its “business strategy and forecasts, competitive outlook, [and] product development” without identifying anything “that discloses information in any of these categories”). 4 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 8 BG000138 1 burden is required by California courts for a party to establish an overriding interest under Rule 2 2.550(d)(1), particularly when that interest seeks to prevent public access to materials submitted 3 4 5 6 in opposition to a motion seeking final judgment. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222, fn. 46 [86 Cal.Rptr.2d 778, 980 P.2d 337] (citing cases in which an overriding interest has been found that entail interests much more extreme and 7 protected than that which Defendants assert here, such as the protection of minors from trauma or 8 the safeguarding of trade secrets or national security matters). 9 10 11 12 13 14 Further, Defendants cannot meet their burden under Rule 2.550(d)(2) because, even if Defendants had identified an overriding interest, such an interest would necessitate unsealing the record based on Defendants’ own arguments in their Anti-SLAPP Motion that the conduct at issue greatly implicates the public interest and was undertaken in furtherance of Defendants’ First Amendment rights to free speech. Finally, Defendants’ argument that their proposal is narrowly 15 tailored is specious, and there are less restrictive means to achieve any legitimate overriding 16 interest if Defendants are able to identify one. Defendants’ Motion to Seal sweeps up whole cloth 17 the content of every document, email and deposition testimony produced by Defendants or their 18 19 20 21 employees cited in opposition to the Anti-SLAPP Motion. Defendants’ proposal could not possibly be less narrow and further makes no attempt to identify specific information that would cause direct and identifiable harm to Defendants if released. Further, there are clearly less 22 restrictive means to achieve any legitimate overriding interest Defendants may have in preserving 23 their relationships with third parties. 24 25 26 27 If Defendants had articulated clearly how any specific piece of information jeopardizes a specific, ongoing contractual commitment, then this would have guided the Court to parse the evidence to satisfy any legitimate concerns Defendants may have. However, Defendants opted 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 9 BG000139 1 not to identify materials with specificity and therefore cannot meet their burden under Rule 2 2.550(d)(4)-(5). Overstock (2014) 231 Cal.App.4th at 500 (“Finally, on the other side of the 3 4 5 6 equation the trial courts can, and should, view overly inclusive sealing efforts with a jaundiced eye, and impose sanctions as appropriate.”); Williams v. U.S. Bank N.A. (E.D.Cal. 2013) 290 F.R.D. 600, 606, fn. 9, italics omitted (threatening sanctions when “defendant made no effort at 7 all to seal only those portions of the substantive exhibits that it actually wanted to protect as 8 confidential”). Defendants are required to satisfy all five prongs of Rule 2.550(d) and yet their 9 Motion to Seal cannot satisfy any of these prongs. 10 11 12 CONCLUSION For the foregoing reasons, Defendants’ Motion to Seal should be denied. 13 14 15 16 17 18 DATED: [ATTORNEY FIRM OR ORGANIZATION NAME] By: [Attorney Name] Attorney for Amicus Curiae [Organization Name] 19 20 21 22 23 24 25 26 27 28 AMICUS BRIEF IN OPPOSITION TO FACEBOOK’S MOTION TO SEAL; Case No. CIV533328 10 BG000140 EXHIBIT 39 G 1 2 3 4 5 6 7 8 9 10 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 11 Stuart G. Gross (#251019) sgross@grosskleinlaw.com GROSS & KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94111 (415) 671-4628 Of counsel: David S. Godkin (admitted pro hac vice) James E. Kruzer (admitted pro hac vice) BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, MA 02210 (617) 307-6100 godkin@birnbaumgodkin.com kruzer@birnbaumgodkin.com Attorneys for Plaintiff, SIX4THREE, LLC, a Delaware limited liability company 12 SUPERIOR COURT OF CALIFORNIA 13 COUNTY OF SAN MATEO 14 15 SIX4THREE, LLC, a Delaware limited liability company, 16 Plaintiff, 17 v. 18 FACEBOOK, INC., et al., 19 Defendants. 20 21 PROPOUNDING PARTY: FACEBOOK 22 RESPONDING PARTY: 23 SIX4THREE, LLC 24 SET NUMBER: ONE ) ) ) ) ) ) ) ) ) ) ) Case No. CIV 533328 Assigned for all purposes to Hon. V. Raymond Swope, Dept. 23 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER 25 26 27 28 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 1 G GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 1 Responding Party has not fully completed its investigation of the facts relating to this 2 matter. All the answers contained herein are based upon such information and documents which 3 are presently available and specifically known to Responding Party and disclose only those 4 contentions which presently occur to such Responding Party. It is anticipated that further 5 discovery, independent investigation, legal research and analysis will supply additional facts, add 6 meaning to the known facts, as well as establish entirely new factual conclusions and legal 7 contentions, all of which may lead to substantial additions, changes in and variations from the 8 contentions herein set forth. The following responses to the notice of deposition and requests for 9 production of documents are given without prejudice to Responding Party's right to produce 10 evidence of any subsequently discovered fact or facts which Responding Party may later recall. 11 Responding Party accordingly reserves the right to change any and all answers herein as 12 additional facts are ascertained, analyses are made, legal research is completed and contentions 13 are made. 14 The answers contained herein are made in a good faith effort to supply as much factual 15 information and as much specification of legal contentions as is presently known but should in no 16 way be in prejudice of Responding Party in relation to further discovery, research and analysis. 17 I. 18 RESPONSES TO NOTICE OF DEPOSITION Responding Party objects to the notice of deposition of Mr. Kramer on the ground that the 19 date and time noticed for Mr. Kramer’s deposition provides for an unreasonably short time for 20 Mr. Kramer to prepare for his deposition. Responding party further objects to the notice of 21 deposition as having been chosen without prior consultation with counsel. Responding Party will 22 cooperate with Facebook’s counsel to agree to a date and location for the deposition. Responding 23 Party further objects on the ground that the date noticed for the deposition is two days prior to 24 that allowed under the Court’s November 30, 2018 Order. 25 II. 26 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 27 RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS Documents (e.g., phone logs) sufficient to show all telephonic and/or video conference 28 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 2 G 1 communications between Six4Three, including without limitation Theodore Kramer, Thomas 2 Scaramellino, David Godkin, James Kruzer, Stuart Gross, and any other agent or representative of 3 Six4Three, and any individual or entity regarding Facebook’s anti-SLAPP motion, Six4Three’s 4 opposition to Facebook’s anti-SLAPP motion, the Godkin Declaration in support of Six4Three’s 5 opposition to Facebook’s anti-SLAPP motion (“Godkin Declaration”) or exhibits thereto, or other 6 Facebook confidential information. For avoidance of doubt, this includes but is not limited to 7 media organizations and governmental entities, including the Digital, Culture, Media and Sport 8 Committee of the House of Commons (“DCMS Committee”). 9 RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 10 Responding Party objects to the request to the extent it seeks information that is protected 11 from disclosure by the attorney-client privilege, the work product doctrine, and any other 12 applicable privilege or doctrine protecting such information from disclosure. 13 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. 14 Kramer has complied with the Court’s November 30, 2018 Order and has provided the electronic 15 devices on which the information sought may be located to the Forensic Examiner and, as a result, 16 the Responding Party does not have access to such information. 17 Responding Party objects to the request on the ground that it is overbroad in that it includes 18 within its scope documents concerning the drafting and filing of the referenced court filings and 19 which have no relevance to the matters currently at issue, and therefore appear requested with the 20 purpose of harassing Responding Party and Mr. Kramer. 21 Responding Party objects to the request to any other extent that it is vague, overly broad, 22 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 23 discovery of admissible evidence. 24 25 26 Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is 27 demanded is unreasonably short, particularly when considered in combination with the 28 aforementioned over-breadth of the request and the inability to access information potentially OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 3 G 1 2 3 4 5 6 Responding Party further objects on the ground that the dated noticed for production of documents is two days prior to that allowed under the Court’s November 30, 2018 Order. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 7 through its phrasing the admission by Responding Party that any particular event occurred. To the 8 extent that Responding Party provides responses to the request such responses do not constitute 9 any such admission that any such particular event occurred. 10 11 12 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 subject to the request. 13 14 15 16 17 18 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party’s possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 19 Responding Party to provide information for or on behalf of any person or entity other than 20 Responding Party. 21 Responding Party objects to the request to the extent that the discovery sought is 22 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 23 convenient, less burdensome or less expensive. 24 The objections and responses herein are made without waiver of and with specific 25 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 26 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 27 this action (including trial) and in other actions. Subject to and without waiving the preceding 28 objections, or admitting to the validity of the terms of the request, Responding Party responds: OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 4 G 1 Responding Party will make a reasonable and diligent search for responsive documents, 2 and, to the extent any responsive documents are found and they are not covered by the attorney- 3 client, attorney work product, or any other privilege, will produce such documents – though, due 4 to the unreasonably short time for production and the fact that Mr. Kramer does not have current 5 access to his electronic devices on which such documents might be located, responsive 6 documents cannot be produced on the date requested. Responding Party will cooperate with 7 Facebook’s counsel to agree to a schedule for production of documents. 8 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 9 All communications between Six4Three, including without limitation Theodore Kramer, 10 Thomas Scaramellino, David Godkin, James Kruzer, Stuart Gross, and any other agent or 11 representative of Six4Three, and any third party individual or entity regarding Facebook’s anti- 12 SLAPP motion, Six4Three’s opposition to Facebook’s anti-SLAPP motion, the Godkin 13 Declaration or exhibits thereto, or other Facebook confidential information. For the avoidance of 14 doubt, this includes but is not limited to media organizations and governmental entities, including 15 the Digital, Culture, Media and Sport Committee of the House of Commons (“DCMS 16 Committee”). 17 RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 18 Responding Party objects to the request to the extent it seeks information that is protected 19 from disclosure by the attorney-client privilege, the work product doctrine, and any other 20 applicable privilege or doctrine protecting such information from disclosure. 21 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. 22 Kramer has complied with the Court’s November 30, 2018 Order and has provided the electronic 23 devices on which the information sought may be located to the Forensic Examiner and, as a result, 24 the Responding Party does not have access to such information. 25 Responding Party objects to the request on the ground that it is overbroad in that it includes 26 within its scope documents concerning the drafting and filing of the referenced court filings and 27 which have no relevance to the matters currently at issue, and therefore appear requested with the 28 purpose of harassing Responding Party and Mr. Kramer OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 5 G 1 Responding Party objects to the request to any other extent that it is vague, overly broad, 2 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 3 discovery of admissible evidence. 4 5 6 possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is 7 demanded is unreasonably short, particularly when considered in combination with the 8 aforementioned over-breadth of the request and the inability to access information potentially 9 subject to the request. 10 11 12 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 Responding Party objects to the request on the ground and to the extent that it may not be 13 14 Responding Party further objects on the ground that the dated noticed for production of documents is two days prior to that allowed under the Court’s November 30, 2018 Order. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 15 through its phrasing the admission by Responding Party that any particular event occurred. To the 16 extent that Responding Party provides responses to the request such responses do not constitute 17 any such admission that any such particular event occurred. 18 19 20 21 22 23 24 25 26 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party’s possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 27 Responding Party to provide information for or on behalf of any person or entity other than 28 Responding Party. OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 6 G 1 2 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 3 convenient, less burdensome or less expensive. 4 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 Responding Party objects to the request to the extent that the discovery sought is The objections and responses herein are made without waiver of and with specific 5 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 6 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 7 this action (including trial) and in other actions. Subject to and without waiving the preceding 8 objections, or admitting to the validity of the terms of the request, Responding Party responds: 9 Responding Party will make a reasonable and diligent search for responsive documents, 10 and, to the extent any responsive documents are found and they are not covered by the attorney- 11 client, attorney work product, or any other privilege, will produce such documents – though, due 12 to the unreasonably short time for production and the fact that Mr. Kramer does not have current 13 access to his electronic devices on which such documents might be located, responsive 14 documents cannot be produced on the date requested. Responding Party will cooperate with 15 Facebook’s counsel to agree to a schedule for production of documents. 16 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 17 Documents sufficient to show the identity of all individuals or entities with whom 18 Theodore Kramer, Thomas Kramer, David Godkin, James Kruzer, and Stuart Gross, or any other 19 agent or representative of Six4Three, discussed Facebook’s anti-SLAPP motion, Six4Three’s 20 opposition to Facebook’s anti-SLAPP motion, the Godkin Declaration or exhibits thereto, or 21 other Facebook confidential information. 22 RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 23 Responding Party objects to the request to the extent it seeks information that is protected 24 from disclosure by the attorney-client privilege, the work product doctrine, and any other 25 applicable privilege or doctrine protecting such information from disclosure. 26 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. 27 Kramer has complied with the Court’s November 30, 2018 Order and has provided the electronic 28 devices on which the information sought may be located to the Forensic Examiner and, as a result, OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 7 G 1 2 Responding Party objects to the request on the ground that it is overbroad in that it includes 3 within its scope documents concerning the drafting and filing of the referenced court filings and 4 which have no relevance to the matters currently at issue, and therefore appear requested with the 5 purpose of harassing Responding Party and Mr. Kramer 6 Responding Party objects to the request to any other extent that it is vague, overly broad, 7 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 8 discovery of admissible evidence. 9 10 11 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 the Responding Party does not have access to such information. Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is 12 demanded is unreasonably short, particularly when considered in combination with the 13 aforementioned over-breadth of the request and the inability to access information potentially 14 subject to the request. 15 16 17 18 19 Responding Party further objects on the ground that the dated noticed for production of documents is two days prior to that allowed under the Court’s November 30, 2018 Order. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 20 through its phrasing the admission by Responding Party that any particular event occurred. To the 21 extent that Responding Party provides responses to the request such responses do not constitute 22 any such admission that any such particular event occurred. 23 24 25 26 27 28 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 8 G 1 2 3 Responding Party’s possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 4 Responding Party to provide information for or on behalf of any person or entity other than 5 Responding Party. 6 Responding Party objects to the request to the extent that the discovery sought is 7 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 8 convenient, less burdensome or less expensive. 9 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 Responding Party objects to the request to the extent it seeks information that is not in The objections and responses herein are made without waiver of and with specific 10 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 11 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 12 this action (including trial) and in other actions. Subject to and without waiving the preceding 13 objections, or admitting to the validity of the terms of the request, Responding Party responds: 14 Responding Party will make a reasonable and diligent search for responsive documents, 15 and, to the extent any responsive documents are found and they are not covered by the attorney- 16 client, attorney work product, or any other privilege, will produce such documents – though, due 17 to the unreasonably short time for production and the fact that Mr. Kramer does not have current 18 access to his electronic devices on which such documents might be located, responsive 19 documents cannot be produced on the date requested. Responding Party will cooperate with 20 Facebook’s counsel to agree to a schedule for production of documents. 21 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 22 23 24 All emails and attachments exchanged between Mr. Kramer and Damian Collins. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 Responding Party objects to the request to the extent it seeks information that is protected 25 from disclosure by the attorney-client privilege, the work product doctrine, and any other 26 applicable privilege or doctrine protecting such information from disclosure. 27 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. 28 Kramer has complied with the Court’s November 30, 2018 Order and has provided the electronic OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 9 G 1 devices on which the information sought may be located to the Forensic Examiner and, as a result, 2 the Responding Party does not have access to such information. 3 4 demanded is unreasonably short, particularly when considered in combination with the 5 aforementioned over-breadth of the request and the inability to access information potentially 6 subject to the request. 7 8 9 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 Responding Party objects to the request to the extent that the time for which production is Responding Party further objects on the ground that the dated noticed for production of documents is two days prior to that allowed under the Court’s November 30, 2018 Order. Responding Party objects to the request to the extent it impermissibly seeks to compel 10 through its phrasing the admission by Responding Party that any particular event occurred. To the 11 extent that Responding Party provides responses to the request such responses do not constitute 12 any such admission that any such particular event occurred. 13 14 15 16 17 18 19 20 21 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party’s possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 22 Responding Party to provide information for or on behalf of any person or entity other than 23 Responding Party. 24 Responding Party objects to the request to the extent that the discovery sought is 25 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 26 convenient, less burdensome or less expensive. 27 28 The objections and responses herein are made without waiver of and with specific preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 10 G 1 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 2 this action (including trial) and in other actions. Subject to and without waiving the preceding 3 objections, or admitting to the validity of the terms of the request, Responding Party responds: 4 Responding Party will make a reasonable and diligent search for responsive documents, 5 and, to the extent any responsive documents are found and they are not covered by the attorney- 6 client, attorney work product, or any other privilege, will produce such documents – though, due 7 to the unreasonably short time for production and the fact that Mr. Kramer does not have current 8 access to his electronic devices on which such documents might be located, responsive 9 documents cannot be produced on the date requested. Responding Party will cooperate with 10 Facebook’s counsel to agree to a schedule for production of documents. 11 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 12 All logs or other records pertaining to the Six4Three Dropbox account that Mr. Kramer 13 accessed from his laptop, including all available or recoverable information about what 14 documents were uploaded to the account and by whom, what documents were downloaded from 15 the account and by whom, what documents were deleted from the account and by whom, when 16 the account was cached or synched locally and on what devices, and all individuals that had 17 access to the account and when. 18 RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 19 Responding Party objects to the request to the extent it seeks information that is protected 20 from disclosure by the attorney-client privilege, the work product doctrine, and any other 21 applicable privilege or doctrine protecting such information from disclosure. 22 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. 23 Scaramellino has complied with the Court’s November 30, 2018 Order and has provided the 24 electronic devices on which the information sought may be located to the Forensic Examiner and, 25 as a result, the Responding Party does not have access to such information. 26 Responding Party objects to the request to any other extent that it is vague, overly broad, 27 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 28 discovery of admissible evidence. OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 11 G 1 2 3 possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is 4 demanded is unreasonably short, particularly when considered in combination with the 5 aforementioned over-breadth of the request and the inability to access information potentially 6 subject to the request. 7 8 9 10 11 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 Responding Party objects to the request on the ground and to the extent that it may not be Responding Party further objects on the ground that the dated noticed for production of documents is two days prior to that allowed under the Court’s November 30, 2018 Order. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 12 through its phrasing the admission by Responding Party that any particular event occurred. To the 13 extent that Responding Party provides responses to the request such responses do not constitute 14 any such admission that any such particular event occurred. 15 16 17 18 19 20 21 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in 22 Responding Party’s possession, custody or control. In particular, Responding Party objects to the 23 request on the ground that the information it seeks is available only to the Forensic Examiner, who 24 has sole access to account in question. 25 Responding Party objects to the request to the extent it seeks to impose an obligation on 26 Responding Party to provide information for or on behalf of any person or entity other than 27 Responding Party. 28 Responding Party objects to the request to the extent that the discovery sought is OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 12 G 1 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 2 convenient, less burdensome or less expensive. GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 3 The objections and responses herein are made without waiver of and with specific 4 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 5 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 6 this action (including trial) and in other actions. Subject to and without waiving the preceding 7 objections, or admitting to the validity of the terms of the request, Responding Party responds: 8 Responding Party will make a reasonable and diligent search for responsive documents, 9 and, to the extent any responsive documents are found and they are not covered by the attorney- 10 client, attorney work product, or any other privilege, will produce such documents – though, due 11 to the unreasonably short time for production and the fact that Mr. Kramer does not have current 12 access to his electronic devices on which such documents might be located, responsive 13 documents cannot be produced on the date requested. Responding Party will cooperate with 14 Facebook’s counsel to agree to a schedule for production of documents. 15 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 16 All emails or other communications amongst and between Mr. Gross or anyone at Gross 17 & Klein, Mr. Godkin or anyone at Birnbaum & Godkin, Mr. Kramer, Mr. Kramer or any other 18 agent, attorney, or individual associated with Six4Three from May 1, 2018 to the present 19 regarding Facebook’s anti-SLAPP motion, Six4Three’s opposition to Facebook’s anti-SLAPP 20 motion, the Godkin Declaration or exhibits thereto, or other Facebook’s confidential or highly 21 confidential information. For avoidance of doubt, this would include without limitation 22 communications relating to contacts with the DCMS Committee, The Guardian, The Observer, or 23 other third parties. 24 RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 25 Responding Party objects to the request to the extent it seeks information that is protected 26 from disclosure by the attorney-client privilege, the work product doctrine, or any other applicable 27 privilege or doctrine protecting such information from disclosure. 28 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 13 G 1 Kramer has complied with the Court’s November 30, 2018 Order and has provided the electronic 2 devices on which the information sought may be located to the Forensic Examiner and, as a result, 3 the Responding Party does not have access to such information. 4 Responding Party objects to the request on the ground that it is overbroad in that it includes 5 within its scope documents which have no relevance to the matters currently at issue, and therefore 6 appear requested with the purpose of harassing Responding Party and Mr. Kramer. 7 Responding Party objects to the request to any other extent that it is vague, overly broad, 8 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 9 discovery of admissible evidence. 10 11 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 12 Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is 13 demanded is unreasonably short, particularly when considered in combination with the 14 aforementioned over-breadth of the request and the inability to access information potentially 15 subject to the request. 16 17 18 19 20 Responding Party further objects on the ground that the dated noticed for production of documents is two days prior to that allowed under the Court’s November 30, 2018 Order. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 21 through its phrasing the admission by Responding Party that any particular event occurred. To the 22 extent that Responding Party provides responses to the request such responses do not constitute 23 any such admission that any such particular event occurred. 24 25 26 27 28 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 14 G 1 2 3 4 Responding Party objects to the request to the extent it seeks information that is not in Responding Party’s possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 5 Responding Party to provide information for or on behalf of any person or entity other than 6 Responding Party. 7 Responding Party objects to the request to the extent that the discovery sought is 8 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 9 convenient, less burdensome or less expensive. 10 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 terms used in them. The objections and responses herein are made without waiver of and with specific 11 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 12 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 13 this action (including trial) and in other actions. Subject to and without waiving the preceding 14 objections, or admitting to the validity of the terms of the request, Responding Party responds: 15 Responding Party will make a reasonable and diligent search for responsive documents, 16 and, to the extent any responsive documents are found and they are not covered by the attorney- 17 client, attorney work product, or any other privilege, will produce such documents – though, due 18 to the unreasonably short time for production and the fact that Mr. Kramer does not have current 19 access to his electronic devices on which such documents might be located, responsive documents 20 cannot be produced on the date requested. Responding Party will cooperate with Facebook’s 21 counsel to agree to a schedule for production of documents. 22 Dated: December 2, 2018 23 Respectfully Submitted, GROSS & KLEIN LLP 24 BIRNBAUM & GODKIN, LLP 25 26 27 28 Attorneys for Plaintiff Six4Three, LLC By: Stuart G. Gross, Esq. David S. Godkin (admitted pro hac vice) James E. Kruzer (admitted pro hac vice) OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THEODORE KRAMER; Case No. CIV 533328 15 EXHIBIT 40 G 1 2 3 4 5 6 7 8 9 10 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 11 Stuart G. Gross (#251019) sgross@grosskleinlaw.com GROSS & KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94111 (415) 671-4628 Of counsel: David S. Godkin (admitted pro hac vice) James E. Kruzer (admitted pro hac vice) BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, MA 02210 (617) 307-6100 godkin@birnbaumgodkin.com kruzer@birnbaumgodkin.com Attorneys for Plaintiff, SIX4THREE, LLC, a Delaware limited liability company 12 SUPERIOR COURT OF CALIFORNIA 13 COUNTY OF SAN MATEO 14 15 SIX4THREE, LLC, a Delaware limited liability company, 16 Plaintiff, 17 v. 18 FACEBOOK, INC., et al., 19 Defendants. 20 21 PROPOUNDING PARTY: FACEBOOK 22 RESPONDING PARTY: 23 SIX4THREE, LLC 24 SET NUMBER: ONE ) ) ) ) ) ) ) ) ) ) ) Case No. CIV 533328 Assigned for all purposes to Hon. V. Raymond Swope, Dept. 23 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO 25 26 27 28 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 1 G GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 1 Responding Party has not fully completed its investigation of the facts relating to this 2 matter. All the answers contained herein are based upon such information and documents which 3 are presently available and specifically known to Responding Party and disclose only those 4 contentions which presently occur to such Responding Party. It is anticipated that further 5 discovery, independent investigation, legal research and analysis will supply additional facts, add 6 meaning to the known facts, as well as establish entirely new factual conclusions and legal 7 contentions, all of which may lead to substantial additions, changes in and variations from the 8 contentions herein set forth. The following responses to the notice of deposition and requests for 9 production of documents are given without prejudice to Responding Party's right to produce 10 evidence of any subsequently discovered fact or facts which Responding Party may later recall. 11 Responding Party accordingly reserves the right to change any and all answers herein as 12 additional facts are ascertained, analyses are made, legal research is completed and contentions 13 are made. 14 The answers contained herein are made in a good faith effort to supply as much factual 15 information and as much specification of legal contentions as is presently known but should in no 16 way be in prejudice of Responding Party in relation to further discovery, research and analysis. 17 I. RESPONSES TO NOTICE OF DEPOSITION 18 Responding Party objects to the notice of deposition of Mr. Scaramellino on the ground 19 that Mr. Scaramellino is a member of Responding Party’s legal team, and Defendants have not 20 met their burden to show his deposition is required, notwithstanding the very strong presumption 21 against the deposition of the attorneys of an opposing party. Responding Party further objects to 22 the notice of deposition of Mr. Scaramellino on the ground that Mr. Scaramellino resides in New 23 York and the location of the deposition is California. Responding party further objects to the 24 notice of deposition of Mr. Scaramellino on the ground that the date and time noticed for Mr. 25 Scaramellino’s deposition provides for an unreasonably short time for Mr. Scaramellino to 26 prepare for his deposition and travel to the deposition site and is otherwise unduly inconvenient 27 for Mr. Scaramellino and counsel and was chosen without prior consultation with counsel. 28 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 2 G 1 Responding Party further objects on the ground that the date noticed for the deposition is two 2 days prior to that allowed under the Court’s November 30, 2018 Order. 3 II. 4 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 5 RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS Documents (e.g., phone logs) sufficient to show all telephonic and/or video conference 6 communications between Six4Three, including without limitation Theodore Kramer, Thomas 7 Scaramellino, David Godkin, James Kruzer, Stuart Gross, and any other agent or representative of 8 Six4Three, and any individual or entity regarding Facebook’s anti-SLAPP motion, Six4Three’s 9 opposition to Facebook’s anti-SLAPP motion, the Godkin Declaration in support of Six4Three’s 10 opposition to Facebook’s anti-SLAPP motion (“Godkin Declaration”) or exhibits thereto, or other 11 Facebook confidential information. For avoidance of doubt, this includes but is not limited to 12 media organizations and governmental entities, including the Digital, Culture, Media and Sport 13 Committee of the House of Commons (“DCMS Committee”). 14 RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 15 Responding Party objects to the request to the extent it seeks information that is protected 16 from disclosure by the attorney-client privilege, the work product doctrine, and any other 17 applicable privilege or doctrine protecting such information from disclosure. 18 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. 19 Scaramellino has complied with the Court’s November 30, 2018 Order and has provided the 20 electronic devices on which the information sought may be located to the Forensic Examiner and, 21 as a result, the Responding Party does not have access to such information. 22 Responding Party objects to the request on the ground that it is overbroad in that it includes 23 within its scope documents concerning the drafting and filing of the referenced court filings and 24 which have no relevance to the matters currently at issue, and therefore appear requested with the 25 purpose of harassing Responding Party and Mr. Scaramellino. 26 Responding Party objects to the request to any other extent that it is vague, overly broad, 27 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 28 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 3 G 1 2 3 4 Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is 5 demanded is unreasonably short, particularly when considered in combination with the 6 aforementioned over-breadth of the request and the inability to access information potentially 7 subject to the request. 8 9 10 11 12 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 discovery of admissible evidence. Responding Party further objects on the ground that the dated noticed for production of documents is two days prior to that allowed under the Court’s November 30, 2018 Order. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 13 through its phrasing the admission by Responding Party that any particular event occurred. To the 14 extent that Responding Party provides responses to the request such responses do not constitute 15 any such admission that any such particular event occurred. 16 17 18 19 20 21 22 23 24 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party’s possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 25 Responding Party to provide information for or on behalf of any person or entity other than 26 Responding Party. 27 28 Responding Party objects to the request to the extent that the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 4 G 1 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 2 convenient, less burdensome or less expensive. The objections and responses herein are made without waiver of and with specific 3 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 4 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 5 this action (including trial) and in other actions. Subject to and without waiving the preceding 6 objections, or admitting to the validity of the terms of the request, Responding Party responds: 7 Responding Party will make a reasonable and diligent search for responsive documents, 8 and, to the extent any responsive documents are found and they are not covered by the attorney- 9 client, attorney work product, or any other privilege, will produce such documents – though, due 10 to the unreasonably short time for production and the fact that Mr. Scaramellino does not have 11 current access to his electronic devices on which such documents might be located, responsive 12 documents cannot be produced on the date requested. Responding Party will cooperate with 13 Facebook’s counsel to agree to a schedule for production of documents. 14 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 15 All communications between Six4Three, including without limitation Theodore Kramer, 16 Thomas Scaramellino, David Godkin, James Kruzer, Stuart Gross, and any other agent or 17 representative of Six4Three, and any third party individual or entity regarding Facebook’s anti- 18 SLAPP motion, Six4Three’s opposition to Facebook’s anti-SLAPP motion, the Godkin 19 Declaration or exhibits thereto, or other Facebook confidential information. For the avoidance of 20 doubt, this includes but is not limited to media organizations and governmental entities, including 21 the Digital, Culture, Media and Sport Committee of the House of Commons (“DCMS 22 Committee”). 23 RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 24 Responding Party objects to the request to the extent it seeks information that is protected 25 from disclosure by the attorney-client privilege, the work product doctrine, and any other 26 applicable privilege or doctrine protecting such information from disclosure. 27 28 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. Scaramellino has complied with the Court’s November 30, 2018 Order and has provided the OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 5 G 1 electronic devices on which the information sought may be located to the Forensic Examiner and, 2 as a result, the Responding Party does not have access to such information. 3 4 within its scope documents concerning the drafting and filing of the referenced court filings and 5 which have no relevance to the matters currently at issue, and therefore appear requested with the 6 purpose of harassing Responding Party and Mr. Scaramellino. 7 Responding Party objects to the request to any other extent that it is vague, overly broad, 8 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 9 discovery of admissible evidence. 10 11 12 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 Responding Party objects to the request on the ground that it is overbroad in that it includes Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is 13 demanded is unreasonably short, particularly when considered in combination with the 14 aforementioned over-breadth of the request and the inability to access information potentially 15 subject to the request. 16 17 18 19 20 Responding Party further objects on the ground that the dated noticed for production of documents is two days prior to that allowed under the Court’s November 30, 2018 Order. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 21 through its phrasing the admission by Responding Party that any particular event occurred. To the 22 extent that Responding Party provides responses to the request such responses do not constitute 23 any such admission that any such particular event occurred. 24 25 26 27 28 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 6 G 1 2 3 4 Responding Party objects to the request to the extent it seeks information that is not in Responding Party’s possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 5 Responding Party to provide information for or on behalf of any person or entity other than 6 Responding Party. 7 Responding Party objects to the request to the extent that the discovery sought is 8 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 9 convenient, less burdensome or less expensive. 10 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 terms used in them. The objections and responses herein are made without waiver of and with specific 11 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 12 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 13 this action (including trial) and in other actions. Subject to and without waiving the preceding 14 objections, or admitting to the validity of the terms of the request, Responding Party responds: 15 Responding Party will make a reasonable and diligent search for responsive documents, 16 and, to the extent any responsive documents are found and they are not covered by the attorney- 17 client, attorney work product, or any other privilege, will produce such documents – though, due 18 to the unreasonably short time for production and the fact that Mr. Scaramellino does not have 19 current access to his electronic devices on which such documents might be located, responsive 20 documents cannot be produced on the date requested. Responding Party will cooperate with 21 Facebook’s counsel to agree to a schedule for production of documents. 22 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 23 Documents sufficient to show the identity of all individuals or entities with whom 24 Theodore Kramer, Thomas Scaramellino, David Godkin, James Kruzer, and Stuart Gross, or any 25 other agent or representative of Six4Three, discussed Facebook’s anti-SLAPP motion, 26 Six4Three’s opposition to Facebook’s anti-SLAPP motion, the Godkin Declaration or exhibits 27 thereto, or other Facebook confidential information. 28 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 7 G 1 2 Responding Party objects to the request to the extent it seeks information that is protected 3 from disclosure by the attorney-client privilege, the work product doctrine, and any other 4 applicable privilege or doctrine protecting such information from disclosure. 5 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. 6 Scaramellino has complied with the Court’s November 30, 2018 Order and has provided the 7 electronic devices on which the information sought may be located to the Forensic Examiner and, 8 as a result, the Responding Party does not have access to such information. 9 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 Responding Party objects to the request on the ground that it is overbroad in that it includes 10 within its scope documents concerning the drafting and filing of the referenced court filings and 11 which have no relevance to the matters currently at issue, and therefore appear requested with the 12 purpose of harassing Responding Party and Mr. Scaramellino. 13 Responding Party objects to the request to any other extent that it is vague, overly broad, 14 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 15 discovery of admissible evidence. 16 17 18 Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is 19 demanded is unreasonably short, particularly when considered in combination with the 20 aforementioned over-breadth of the request and the inability to access information potentially 21 subject to the request. 22 23 24 25 26 Responding Party further objects on the ground that the dated noticed for production of documents is two days prior to that allowed under the Court’s November 30, 2018 Order. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 27 through its phrasing the admission by Responding Party that any particular event occurred. To the 28 extent that Responding Party provides responses to the request such responses do not constitute OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 8 G 1 2 3 4 5 6 7 8 9 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 10 any such admission that any such particular event occurred. Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party’s possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 11 Responding Party to provide information for or on behalf of any person or entity other than 12 Responding Party. 13 Responding Party objects to the request to the extent that the discovery sought is 14 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 15 convenient, less burdensome or less expensive. 16 The objections and responses herein are made without waiver of and with specific 17 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 18 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 19 this action (including trial) and in other actions. Subject to and without waiving the preceding 20 objections, or admitting to the validity of the terms of the request, Responding Party responds: 21 Responding Party will make a reasonable and diligent search for responsive documents, 22 and, to the extent any responsive documents are found and they are not covered by the attorney- 23 client, attorney work product, or any other privilege, will produce such documents – though, due 24 to the unreasonably short time for production and the fact that Mr. Scaramellino does not have 25 current access to his electronic devices on which such documents might be located, responsive 26 documents cannot be produced on the date requested. Responding Party will cooperate with 27 Facebook’s counsel to agree to a schedule for production of documents. 28 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 9 G 1 2 3 4 All emails and attachments exchanged between Mr. Kramer and Damian Collins. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 Responding Party objects to the request to the extent it seeks information that is protected 5 from disclosure by the attorney-client privilege, the work product doctrine, and any other 6 applicable privilege or doctrine protecting such information from disclosure. 7 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. 8 Scaramellino has complied with the Court’s November 30, 2018 Order and has provided the 9 electronic devices on which the information sought may be located to the Forensic Examiner and, 10 11 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 as a result, the Responding Party does not have access to such information. Responding Party objects to the request to the extent that the time for which production is 12 demanded is unreasonably short, particularly when considered in combination with the 13 aforementioned over-breadth of the request and the inability to access information potentially 14 subject to the request. 15 Responding Party objects to the request to the extent it impermissibly seeks to compel 16 through its phrasing the admission by Responding Party that any particular event occurred. To the 17 extent that Responding Party provides responses to the request such responses do not constitute 18 any such admission that any such particular event occurred. 19 20 21 22 23 24 25 26 27 28 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party’s possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on Responding Party to provide information for or on behalf of any person or entity other than OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 10 G 1 2 Responding Party objects to the request to the extent that the discovery sought is 3 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 4 convenient, less burdensome or less expensive. 5 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 Responding Party. The objections and responses herein are made without waiver of and with specific 6 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 7 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 8 this action (including trial) and in other actions. Subject to and without waiving the preceding 9 objections, or admitting to the validity of the terms of the request, Responding Party responds: 10 Responding Party will make a reasonable and diligent search for responsive documents, 11 and, to the extent any responsive documents are found and they are not covered by the attorney- 12 client, attorney work product, or any other privilege, will produce such documents – though, due 13 to the unreasonably short time for production and the fact that Mr. Scaramellino does not have 14 current access to his electronic devices on which such documents might be located, responsive 15 documents cannot be produced on the date requested. Responding Party will cooperate with 16 Facebook’s counsel to agree to a schedule for production of documents. 17 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 18 All logs or other records pertaining to the Six4Three Dropbox account that Mr. Kramer 19 accessed from his laptop, including all available or recoverable information about what 20 documents were uploaded to the account and by whom, what documents were downloaded from 21 the account and by whom, what documents were deleted from the account and by whom, when 22 the account was cached or synched locally and on what devices, and all individuals that had 23 access to the account and when. 24 RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 25 Responding Party objects to the request to the extent it seeks information that is protected 26 from disclosure by the attorney-client privilege, the work product doctrine, and any other 27 applicable privilege or doctrine protecting such information from disclosure. 28 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 11 G 1 Scaramellino has complied with the Court’s November 30, 2018 Order and has provided the 2 electronic devices on which the information sought may be located to the Forensic Examiner and, 3 as a result, the Responding Party does not have access to such information. 4 Responding Party objects to the request to any other extent that it is vague, overly broad, 5 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 6 discovery of admissible evidence. 7 8 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 9 Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is 10 demanded is unreasonably short, particularly when considered in combination with the 11 aforementioned over-breadth of the request and the inability to access information potentially 12 subject to the request. 13 14 15 Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 16 through its phrasing the admission by Responding Party that any particular event occurred. To the 17 extent that Responding Party provides responses to the request such responses do not constitute 18 any such admission that any such particular event occurred. 19 20 21 22 23 24 25 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in 26 Responding Party’s possession, custody or control. In particular, Responding Party objects to the 27 request on the ground that the information it seeks is available only to the Forensic Examiner, who 28 has sole access to account in question. OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 12 G 1 2 Responding Party to provide information for or on behalf of any person or entity other than 3 Responding Party. 4 Responding Party objects to the request to the extent that the discovery sought is 5 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 6 convenient, less burdensome or less expensive. 7 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 Responding Party objects to the request to the extent it seeks to impose an obligation on The objections and responses herein are made without waiver of and with specific 8 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 9 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 10 this action (including trial) and in other actions. Subject to and without waiving the preceding 11 objections, or admitting to the validity of the terms of the request, Responding Party responds: 12 Responding Party will make a reasonable and diligent search for responsive documents, 13 and, to the extent any responsive documents are found and they are not covered by the attorney- 14 client, attorney work product, or any other privilege, will produce such documents – though, due 15 to the unreasonably short time for production and the fact that Mr. Scaramellino does not have 16 current access to his electronic devices on which such documents might be located, responsive 17 documents cannot be produced on the date requested. Responding Party will cooperate with 18 Facebook’s counsel to agree to a schedule for production of documents. 19 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 20 All emails or other communications amongst and between Mr. Gross or anyone at Gross 21 & Klein, Mr. Godkin or anyone at Birnbaum & Godkin, Mr. Kramer, Mr. Scaramellino or any 22 other agent, attorney, or individual associated with Six4Three from May 1, 2018 to the present 23 regarding Facebook’s anti-SLAPP motion, Six4Three’s opposition to Facebook’s anti-SLAPP 24 motion, the Godkin Declaration or exhibits thereto, or other Facebook’s confidential or highly 25 confidential information. For avoidance of doubt, this would include without limitation 26 communications relating to contacts with the DCMS Committee, The Guardian, The Observer, or 27 other third parties. 28 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 13 G 1 2 Responding Party objects to the request to the extent it seeks information that is protected 3 from disclosure by the attorney-client privilege, the work product doctrine, or any other applicable 4 privilege or doctrine protecting such information from disclosure. 5 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 Responding Party objects to the request as unduly burdensome in light of the fact that Mr. 6 Scaramellino has complied with the Court’s November 30, 2018 Order and has provided the 7 electronic devices on which the information sought may be located to the Forensic Examiner and, 8 as a result, the Responding Party does not have access to such information. 9 Responding Party objects to the request on the ground that it is overbroad in that it includes 10 within its scope documents which have no relevance to the matters currently at issue, and therefore 11 appear requested with the purpose of harassing Responding Party and Mr. Scaramellino. 12 Responding Party objects to the request to any other extent that it is vague, overly broad, 13 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 14 discovery of admissible evidence. 15 16 17 Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is 18 demanded is unreasonably short, particularly when considered in combination with the 19 aforementioned over-breadth of the request and the inability to access information potentially 20 subject to the request. 21 22 23 24 25 Responding Party further objects on the ground that the dated noticed for production of documents is two days prior to that allowed under the Court’s November 30, 2018 Order. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 26 through its phrasing the admission by Responding Party that any particular event occurred. To the 27 extent that Responding Party provides responses to the request such responses do not constitute 28 any such admission that any such particular event occurred. OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 14 G 1 2 3 4 5 6 7 8 9 established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party’s possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 10 Responding Party to provide information for or on behalf of any person or entity other than 11 Responding Party. 12 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 Responding Party objects to the request to the extent it assumes facts that have not been Responding Party objects to the request to the extent that the discovery sought is 13 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 14 convenient, less burdensome or less expensive. 15 The objections and responses herein are made without waiver of and with specific 16 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 17 of the document or the subject matter thereof as evidence for any purpose and any proceeding in 18 this action (including trial) and in other actions. Subject to and without waiving the preceding 19 objections, or admitting to the validity of the terms of the request, Responding Party responds: 20 Responding Party will make a reasonable and diligent search for responsive documents, 21 and, to the extent any responsive documents are found and they are not covered by the attorney- 22 client, attorney work product, or any other privilege, will produce such documents – though, due 23 to the unreasonably short time for production and the fact that Mr. Scaramellino does not have 24 current access to his electronic devices on which such documents might be located, responsive 25 documents cannot be produced on the date requested. Responding Party will cooperate with 26 Facebook’s counsel to agree to a schedule for production of documents. 27 28 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 15 G 1 Dated: December 2, 2018 Respectfully Submitted, 2 GROSS & KLEIN LLP 3 BIRNBAUM & GODKIN, LLP 4 5 6 7 Attorneys for Plaintiff Six4Three, LLC By: Stuart G. Gross, Esq. David S. Godkin (admitted pro hac vice) James E. Kruzer (admitted pro hac vice) 8 9 10 11 GROSS & KLEIN LLP THE EMBARCADERO PIER 9, SUITE 100 SAN FRANCISCO, CA 94111 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OBJECTIONS AND RESPONSES TO FACEBOOK’S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THOMAS SCARAMELLINO; Case No. CIV 533328 16 EXHIBIT 41 Stuart G. Gross (#251019) sgross@ grosskleinlaw. com GROSS & KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94lll (4ts) 67t-4628 Of counsel: David S. Godkin (admittedpro hac vice) (admittedpro hac vice) BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, MA02210 (617) 307-6100 James E. Kruzer .com com Attorneys for Plaintiff, SIX4THREE, LLC, a Delaware limited liability company SUPERIOR COURT OF CALIFORNIA COLINTY OF SAN MATEO SIX4THREE, LLC, liability company, a Delaware limited Plaintiff, FACEBOOK, INC., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No, CIV 533328 Assigned for all purposes to Hon. V. Raymond Swope, Dept.23 OBJECTIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOSITION \ryITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO DAVID S. GODKIN PROPOUNDING PARTY: FACEBOOK RESPONDING PARTY: SIX4THREE, LLC SET NUMBER: ONE OBJEC'TIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOSITION WITH REQUEST FOR TFIE PRODUCTION OF DOCUMENTS TO DAVID S. GODKIN; Case No. CIV, 533328 Responding Party has not fully completed its investigation of the facts relating to this I 2 matter. All the answers contained herein are based upon such information and documents which J are presently available and specifically known to Responding Party and disclose only those 4 contentions which presently occur to such Responding Party. It is anticipated that further 5 discovery, independent investigation, legal research and analysis 6 add meaning to the known facts, as well as establish entirely new factual conclusions and legal 7 contentions, all of which may lead to substantial additions, changes in and variations from the 8 contentions herein set forth. The following responses to the notice of deposition and requests for 9 production of documents are given without prejudice to Responding Party's right to produce will supply additional facts, l0 evidence of any subsequently discovered fact or facts which RespondingParty may later recall. ll Responding Party accordingly reserves the right to change any and all answers herein as 12 additional facts are ascertained, analyses are made, legal research is completed and contentions l3 are made, l4 The answers contained herein are made in a good faith effort to supply as much factual l5 information and as much specification of legal contentions as is presently known but should in 16 no way be in prejudice of Responding Party in relation to further discovery, research and t7 analysis. l8 r. RESPONSES TO NOTICE OF PEP,OSITION t9 Responding Party objects to the notice of deposition of Mr. Godkin on the ground that 20 Mr. Godkin is a member of Responding Party's legal team, and Defendants have not met their 21 burden to show his deposition is required, notwithstanding the very strong presumption against 22 the deposition of the attorneys of an opposing party. Respondin g party further objects to the ZJ notice of deposition of Mr. Godkin on the ground that the date and time noticed for Mr. 24 Godkin's deposition provides for an unreasonably short time for Mr. Godkin to engage counsel 25 to represent him, if he so chooses, or prepare for his deposition, and is otherwise unduly 26 inconvenient for Mr. Godkin and counsel and was chosen without prior consultation with )7 counsel. 28 OBJECTIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOSITION WITH REQUEST FOR TFIE PRODUCTION OF DOCUMENTS TO DAVID S. GODKIN; Case No, CIV, 533328 2 II. RESPONSES TO REOIIESTS F'OR PRODUCTION DOCUMENTS 2 REQUEST FOR PBOpUCTION OF DOCUMENTS J Documents (e.g., phone logs) suffrcient to show all telephonic and/or video conference NqLl 4 communications between Six4Three, including without limitation Theodore Kramer, Thomas 5 Scaramellino, David Godkin, James Kruzer, Stuart Gross, and any other agent or representative 6 of Six4Three, and any individual or entity regarding Facebook's anti-SLAPP motion, 7 Six4Three's opposition to Facebook's anti-SLAPP motion, the Godkin Declaration in support I of Six4Three's opposition to Facebook's anti-SLAPP motion ("Godkin Declaration") or I exhibits thereto, or other Facebook confidential information. For avoidance of doubt, this r0 includes but is not limited to media organizations and governmental entities, including the ll Digital, Culture, Media and Sport Committee of the House of Commons ("DCMS Committee"). l2 RESPONSE TO REOUEST FOR PRODUCTION OF DOCUMENIS NO. l3 I RespondingParty objects to the request to the extent it seeks information that is l4 protected from disclosure by the attorney-client privilege, the work product doctrine, and any l5 other applicable privilege or doctrine protecting such information from disclosure. t6 Responding Party objects to the request on the ground that it is overbroad in that it l7 includes within its scope documents concerning the drafting and filing of the referenced court l8 filings and which have no relevance to the matters currently at issue, and therefore appear t9 requested with the purpose of harassing Responding Party and Mr. Godkin. 20 Responding Party objects to the request to any other extent that it is vague, overly broad, 2t burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 22 discovery of admissible evidence. 2J 24 25 Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production 26 is demanded is unreasonably short, particularly when considered in combination with the 27 aforementioned over-breadth of the request and the inability to access information potentially 28 subject to the request. OBJEC'TIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO DAVID S. GODKIN; Case No. CIV. 533328 3 Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel through its phrasing the admission by Responding Party that any particular event occurred. To the extent that Responding Party provides responses to the request such responses do not constitute any such admission that any such particular event occurred. Responding Party objects to the request to the extent it assumes facts that have not beçn established , that arc not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party's possession, custody or control. RespondingParty objects to the request to the extent it seeks to impose an obligation on Responding Party to provide information for or on behalf of any person or entity other than Responding Party. Responding Party objects to the request to the extent that the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome or less expensive. The objections and responses herein are made without waiver of and with specific preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility of the document or the subject matter thereof as evidence for any purpose and any proceeding in this action (including trial) and in other actions' REOUEST FO R PRODUCTION OF NO.2 All communications between Six4Three, including without limitation Theodore Kramer, Thomas Scaramellino, David Godkin, James Kruzer, Stuart Gross, and any other agent or representative of Six4Three, and any third party individual or entity regarding Facebook's antiOBJECTIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO DAVID S. GODKIN; Case No. CIV. 533328 4 SLAPP motion, Six4Three's opposition to Facebook's anti-SLAPP motion, the Godkin Declaration or exhibits thereto, or other Facebook confîdential information. For the avoidance of doubt, this includes but is not limited to media organizations and governmental entities, including the Digital, Culture, Media and Sport Committee of the House of Commons ("DCMS Committee"). RESPONSE rO B,EqUEqT FOR PRqqUCTION OF DOÇUMENTS NO. 2 Responding Party objects to the request to the extent it seeks information that is protected from disclosure by the attorney-client privilege, the work product doctrine, and any other applicable privilege or doctrine protecting such information from disclosure. Responding Party objects to the request on the ground that it is overbroad in that it includes within its scope documents concerning the drafting and filing of the referenced court filings and which have no relevance to the matters currently at issue, and therefore appear requested with the purpose of harassing Responding Party and Mr. Godkin. Responding Party objects to the request to any other extent that it is vague, overly broad, burdensome, andlor seeks information that is neither material, necessary, or likely to lead to the discovery of admissible evidence. Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Respondin gParty objects to the request to the extent that the time for which production is demanded is unreasonably short, particularly when considered in combination with the aforementioned over-breadth of the request and the inability to access information potentially subject to the request. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Respondin gParty objects to the request to the extent it impermissibly seeks to compel through its phrasing the admission by Responding Party that any particular event occurred. To the extent that Responding Party provides responses to the request such responses do not constitute any such admission that any such particular event occurred. OBJECTIONS AND RESPONSES TO FACEBOOK'S NO'IICE OF DEPOSII'ION WITH REQUESI'FOR THE PRODUCI'ION OF DOCUMENTS TO DAVID S. GODKIN; Case No. CIV' 533328 5 I 2 3 4 5 6 7 8 9 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not trueo or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, andlor at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party's possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 10 Responding Party to provide information for or on behalf of any person or entity other than ll Responding Party. l2 Responding Party objects to the request to the extent that the discovery sought is t3 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 14 convenient, less burdensome or less expensive. l5 The objections and responses herein are made without waiver of and with specific l6 preservation of all objections as to competency, relevancy, materiality, privilege, and t7 admissibility of the document or the subject matter thereof as evidence for any purpose and any l8 proceeding in this action (including trial) and in other actions. t9 REOgEST FOR PROpUCTION OF DOCUMENTS NO.3 20 Documents sufficient to show the identity of all individuals or entities with whom 21 Theodore Kramer, Thomas Scaramellino, David Godkin, James Kruzer, and Stuart Gross, or 22 any other agent or representative of Six4Three, discussed Facebook's anti-SLAPP motion, 23 Six4Three's opposition to Facebook's anti-SLAPP motion, the Godkin Declaration or exhibits 24 thereto, or other Facebook confidential information. 25 RF',SPf)NSE TO 26 ITÌ',ST F'r)R PRr) D II CTION oF IMT"NTS NO.3 Responding Party objects to the request to the extent it seeks information that is 11 protected from disclosure by the attorney-client privilege, the work product doctrine, and any 28 other applicable privilege or doctrine protecting such information from disclosure. OBJECTIONS AND RESPONSES'fO FACEBOOK'S NOTICE OF DEPOSII'ION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO DAVID S. GODKIN; Case No. CIV. 533328 6 Responding Party objects to the request on the ground that it is overbroad in that it 2 includes within its scope documents concerning the drafting and filing of the referenced court J filings and which have no relevance to the matters currently at issue, and therefore appear 4 requested with the purpose of harassing Responding Party and Mr. Godkin. 5 Responding Party objects to the request to any other extent that it is vague, overly broad, 6 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 7 discovery of admissible evidence. 8 9 l0 Respondin gParty objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production ll is demanded is unreasonably short, particularly when considered in combination with the l2 aforementioned over-breadth of the request and the inability to access information potentially 13 subject to the request. t4 l5 16 Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 17 through its phrasing the admission by Responding Party that any particular event occurred. To l8 the extent that Responding Party provides responses to the request such responses do not 19 constitute any such admission that any such particular event occurred. 20 21 22 23 24 25 26 27 Responding Party objects to the request to the extent it assumes facts that have not been established,that are not true, or that are inacçurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or atvariance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party's possession, custody or control. 28 OBJECTIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOSITION WITH REQUEST FOR TI-{E PRODUC'I'ION OF DOCUMENTS TO DAVID S. GODKIN; Case No. CIV. 533328 7 I Responding Party objects to the request to the extent it seeks to impose an obligation on 2 Responding Party to provide information for or on behalf of any person or entity other than 3 Responding Party. 4 Responding Party objects to the request to the extent that the discovery sought is 5 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 6 convenient, less burdensome or less expensive. 7 The objections and responses herein are made without waiver of and with specific 8 preservation of all objections as to competency, relevancy, materiality, privilege, and 9 admissibility of the document or the subject matter thereof as evidence for any purpose and any t0 proceeding in this action (including trial) and in other actions' il REOUEST FO R PRODUCTION OF 12 l3 14 All emails NO.4 and attachments exchanged between Mr. Kramer and Damian Collins. RESPONSE TO REOUEST FOB PRODUCTION OF DOCUMENTS NO. 4 Responding Party objects to the request to the extent it seeks information that is 15 protected from disclosure by the attorney-client privilege, the work product doctrine, and any t6 other applicable privilege or doctrine protecting such information from disclosure' l7 Respondin gParty objects to the request on the ground that it is overbroad in that it l8 includes within its scope documents concerning the drafting and filing of the referenced court t9 filings and which have no relevance to the matters currently at issue, and therefore appear 20 requested with the purpose of harassing Responding Party and Mr. Godkin. 2l Responding Party objects to the request to any other extent that it is vague, overly broad, 22 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the 23 discovery of admissible evidence. 24 25 26 )1 Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is demanded is unreasonably short, particularly when considered in combination with the 28 OBJECTIONS AND RESPONSES TO F'ACEBOOK'S NOTICE OF DEPOSITION WITH REQIJEST FOR THE PRODUCTION OF DOCUMENTS TO DAVID S. GODKIN; Case No. CIV. 533328 8 aforementioned over-breadth of the request and the inability to access information potentially 2 J 4 5 subject to the request. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information, Responding Party objects to the request to the extent it impermissibly seeks to compel 6 through its phrasing the admission by Responding Party that any particular event occuned' To 7 the extent that Responding Party provides responses to the request such responses do not 8 constitute any such admission that any such particular event occurred. 9 r0 ll 12 13 t4 l5 l6 17 Responding Party objects to the request to the extent it assumes facts that have not beçn established, that are not true, or that are inaccurate' Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law, Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party's possession, custody or control' Responding Party objects to the request to the extent it seeks to impose an obligation on t8 Responding Party to provide information for or on behalf of any person or entity other than t9 Responding Party. 20 Respondin gParty objects to the request to the extent that the discovery sought is 21 unreasonably cumulative or duplicative, or is obtainable from some other source that is more 22 convenient, less burdensome or less expensive. 23 The objections and responses herein are made without waiver of and with specific 24 preservation of all objections as to competency, relevancy, materiality, privilege, and 25 admissibility of the document or the subject matter thereof as evidence for any purpose and any 26 proceeding in this action (including trial) and in other actions' 27 28 OBJECTIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO DAVID S. GODKIN; Case No. CIV. 533328 9 REOUEST FOR PRODUCTION OF DOCUMENTS NO. 5 All logs or other records pertaining to the Six4Three Dropbox accessed from his laptop, including account that Mr. Kramer all available or recoverable information about what documents were uploaded to the account and by whom, what documents were downloaded from the account and by whom, what documents were deleted fiom the account and by whom, when the account was cached or synched locally and on what devices, and all individuals that had access to the account and when. RESPONSE Tp REOUEST FpR PR9DUCTION OF DOCUMENTS NO. s Responding Party objects to the request to the extent it seeks information that is protected from disclosure by the attorney-client privilege, the work product doctrine, and any other applicable privilege or doctrine protecting such information from disclosure. Responding Party objects to the request on the ground that it is overbroad in that it includes within its scope documents concerning the drafting and filing of the referenced court filings and which have no relevance to the matters currently at issue, and therefore appear requested with the purpose of harassing Responding Party and Mr. Godkin, Responding Party objects to the request to any other extent that it is vague, overly broad, burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the discovery of admissible evidence. Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is demanded is unreasonably short, particularly when considered in combination with the aforementioned over-breadth of the request and the inability to access information potentially subject to the request. Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information, Responding Party objects to the request to the extent it impermissibly seeks to compel through its phrasing the admission by Responding Party that any particular event occurred. To OBJECTIONS AND RESPONSES T'O FACEBOOK'S NOTICE OF D EPOSITION WITI-I REQUEST FOR THE PRODUCTION OF DOCI.JMENTS TO DAVID S. GODKIN; Case No, CIV. 533328 l0 the extent that Responding Party provides responses to the request such responses do not 2 J 4 5 6 7 8 9 r0 ll constitute any such admission that any such particular event occurred. Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them, Responding Party objects to the request to the extent it seeks information that is not in Responding Party's possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on l2 Responding Party to provide information for or on behalf of any person or entity other than t3 Responding Party. 14 Responding Party objects to the request to the extent that the discovery sought is l5 unreasonably cumulative or duplicative, or is obtainable from some other source that is more t6 convenient, less burdensome or less expensive. t7 The objections and responses herein are made without waiver of and with specifìc 18 preservation of all objections as to competency, relevancy, materiality, privilege, and t9 admissibility of the document or the subject matter thereof as evidence for any purpose and any 20 proceeding in this action (including trial) and in other actions. 21 T F'OR PR 22 All emails or other communications amongst and between Mr. Gross or anyone 23 & Klein, Mr. Godkin or anyone at Birnbaum & Godkin, Mr. Kramer, Mr. Scaramellino or any 24 other agent, attorney, or individual associated with Six4Three from May 7,2018 to the present 25 regarding Facebook's anti-SLAPP motion, Six4Three's opposition to Facebook's anti-SLAPP 26 motion, the Godkin Declaration or exhibits thereto, or other Facebook's confidential or highly 27 confidential information. For avoidance of doubt, this would include without limitation at Gross 28 OBJECTIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOSITION WITH REQUEST FOR TI-IE PRODUCTION OF DOCUMENI'S TO DAVID S, GODKIN; Case No. CIV' 533328 ll I communications relating to contacts with the DCMS Committee, The Guardian, The Observer, 2 or other third parties. 3 RESPONSE TO REOUEST FOR PRODUCTION gF DOCUMENTS NO. 6 4 Responding Party objects to the request to the extent it seeks information that is 5 protected from disclosure by the attorney-client privilege, the work product doctrine, and any 6 other applicable privilege or doctrine protecting such information from disclosure. 7 Responding Party objects to the request on the ground that it is overbroad in that it 8 includes within its scope documents concerning the drafting and filing of the referenced court 9 filings and which have no relevance to the matters currently at issue, and therefore appear l0 requested with the purpose of harassing Responding Party and Mr. Godkin. lt Responding Party objects to the request to any other extent that it is vague, overly broad, 12 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the l3 discovery of admissible evidence. t4 l5 l6 Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request' Responding Party objects to the request to the extent that the time for which production 17 is demanded is unreasonably short, particularly when considered in combination with the 18 aforementioned over-breadth of the request and the inability to access information potentially l9 subject to the request. 20 2t 22 Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 23 through its phrasing the admission by Responding Party that any particular event occurred' To 24 the extent that Responding Party provides responses to the request such responses do not 25 constitute any such admission that any such particular event occurred. 26 27 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate, 28 OBJECTIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOSITION WITH REQUEST FOR THE PRODLJCTION OF DOCUMENTS TO DAVID S. GODKIN; Case No. CIV. 533328 t2 I 2 3 4 5 6 7 Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party's possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on 8 Responding Party to provide information for or on behalf of any person or entity other than I Responding Party. l0 Respondin gParty objects to the request to the extent that the discovery sought is ll unreasonably cumulative or duplicative or is obtainable from some other source that is more t2 convenient, less burdensome or less expensive. r3 The objections and responses herein are made without waiver of and with specific l4 preservation of all objections as to competency, relevancy, materiality, privilege, and l5 admissibility of the document or the subject matter thereof as evidence for any purpose and any l6 proceeding in this action (including trial) and in other actions. t7 l8 t9 Dated: December 3,2018 Respectfully Submitted, GROSS & KLEIN LLP 20 GODKIN, LLP 2l ')) B 23 pro hac vice) David S. Godki James E. Kruzer (admittedpro hac vice) 24 Attorneys for Plaintiff Six4Three, LLC 25 26 27 28 OBJECTIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOS ITION WITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO DAVID S. GODKIN; Case No. CIV. 533328 l3 PROOF OF SERVICE 2 I, Cheryl A. McDuffee, declare: J I am a citizen of the United States and employed in Suffolk County, Massachusetts, I 4 am over the age of eighteen years and not a party to the within-entitled action. My business 5 address is 280 Summer Street, Boston, 6 7 I 9 t2 t3 t4 15 t6 served a copy of the within document(s): OBJECTIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOSITION \ryITH REQUEST FOR THE PRODUCTION OF DOCUMENTS TO DAVID S. GODKIN by electronic service, per the agreement of the parties, by emailing a true and correct copy through counsel's email address to Defendant's counsel of record at the email addresses set forth below' [Fl l0 1t MA02210. On December 3, 2018,I Joshua H. Lerner (lerner@durietangri.com) Sonal N. Mehta (smehta@durietangri.com) Laura Miller (lmiller@durietangri.com) Catherine Kim (ckim@durietangri.com) Duri e Tan gri (servi ce- s i x 4thr ee@duri etan gri. com ) 217 Leidesdorff Street San Francisco, CA 94lll P (41s) 376 - 6427 Attorney for Defendant FACEBOOK, INC. 17 and l8 Judge V. Raymond Swope (By email and by hand) 19 20 21 22 23 Department 23 Complex Civil Litigation I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed December 3,2018, at Boston, Massachusetts. 24 25 / McDuffee 26 27 28 OBJECTIONS AND RESPONSES TO F'ACEBOOK'S NOTICE OF DEPOSITION WITH REQUEST FOR l-HE PRODUCTION OF DOCUMENTS 1'O DAVID S. GODKIN; Case No. CIV. 533328 l4 EXHIBIT 42 I Stuart G, Gross (#251019) sgross@grosskleinlaw. com 2 GROSS & KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94lll (4ts) 671-4628 J 4 Of counsel: 5 6 7 8 9 l0 ll ù^ -¡ Voò= JdO/ áO, = < qv u4d9, 3;8 3i ËS ú, r, o- lL € U) ) matter. All the answers contained herein are based upon such information and documents which J are presently available and specifically known to Responding Party and disclose only thosq 4 contentions which presently occur to such Responding Party. It is anticipated that further 5 discovery, independent investigation, legal research and analysis 6 meaning to the known facts, as well as establish entirely new factual conclusions and legal 7 contentions, all of which may lead to substantial additions, changes in and variations from the 8 contentions herein set forth. The following responses to the notice of deposition and requests for 9 production of documents are given without prejudice to Responding Party's right to produce will supply additional facts, add l0 evidence of any subsequently discovered fact or facts which Responding Party may later recall. ll Responding Party accordingly reserves the right to change any and all answers herein as t2 additional facts are ascertained, analyses are made, legal research is completed and contentions 13 are made. The answers contained herein are made in a good faith effort to supply as much factual t4 l5 information and as much specification of legal contentions as is presently known but should in no t6 way be in prejudice of Responding Party in relation to further discovery, research and analysis. t7 r. l8 RESPqNqES ro ryorIçE 9F pEryoslrloN Responding Party objects to the notice of deposition of Mr. Gross on the ground that Mr. 19 Gross is a member of Responding Party's legal team, and Defendants have not met their burden 20 to show his deposition is required, notwithstanding the very strong presumption against the 2t deposition of the attorneys of an opposing party, Respondingparty further objects to the notice of 22 deposition of Mr. Gross on the ground that the date and time noticed for Mr, Gross's deposition 23 provides for an unreasonably short time for Mr, Gross to engage counsel to represent him, if he so 24 chooses, or prepare for his deposition, and is otherwise unduly inconvenient for Mr. Gross and 25 counsel and was chosen without prior consultation with counsel. 26 II. 27 REOUEST FOR PROpUCTION qF'DOCUMENTS NO. RESPONSES TO REOUESTS FOR PRO,DUCTION OF DOCUMENTS I 28 OBJECTIONS AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOS PRODUCTION OF'DOCUMENTS TO STUART GROSS; Case No. CIV. 533328 WITH REQUESTFOR THE 2 Documents (e.g,, phone logs) sufficient to show all telephonic and/or video conferçnce I 2 communications between Six4Three, including without limitation Theodore Kramer, Thomas J Scaramellino, David Godkin, James Kruzer, Stuart Gtoss, and any other agent or representative 4 Six4Three, and any individual or entity regarding Facebook's anti-SLAPP motion, Six4Three's 5 opposition to Facebook's anti-SLAPP motion, the Godkin Declaration in support of Six4Three's 6 opposition to Facebook's anti-SLAPP motion ("Godkin Declaration") or exhibits thereto, or other 7 Facebook confidential information. For avoidance of doubt, this includes but is not limited to 8 media organizations and governmental entities, including the Digital, Culture, Media and Sport 9 Committee of the House of Commons ("DCMS Committee"). l0 RESPONSE TO IJ H=< f d ol/ úlùF-j u <á3 ù 9;Ç oo9J d rÞ-e v' Z IMENTS NO. I Responding Party objects to the request to the extent it seeks information that is protected 1l ù^Vçò UEST F'OR PRODI]CTION OF D of l2 from disclosure by the attorney-client privilege, the work product doctrine, and any other l3 applicable privilege or doctrine protecting such information from disclosure, Responding Party objects to the request on the ground that it is overbroad in that it includes l4 l5 within its scope documents concerning the drafting and filing of the referenced court filings and t6 which have no relevance to the matters currently at issue, and therefore appear requested with the t7 purpose of harassing Responding Party and Mr. Gross. l8 Responding Party objects to the request to any other extent that it is vague, overly broad, 19 burdensom e, andlor seeks information that is neither material, necessary, or likely to lead to the 20 discovery of admissible evidence. Responding Party objects to the request on the ground and to the extent that it may not be 2l 22 possible to identify responsive documents based on the wording of the request, Responding Party objects to the request to the extent that the time for which production is 23 24 demanded is unreasonably short, particularly when considered in combination with the 25 aforementioned over-breadth of the request and the inability to access information potentially 26 subject to the request. Responding Party objects to the request to the extent it seeks confidential financial, 27 28 proprietary, business or personal information. AND RESPONSES TO FACEBOOK'S NOTICE OF DEPOS ITION WITFI REQUEST FOR THE PRODUCTION OF DOCUMENTS TO STUART GROSS; Case No. CIV. 533328 OBJ 3 I Responding Party objects to the request to the extent it impermissibly seeks to compel 2 through its phrasing the admission by Responding Party that any particular event occurred. To the J extent that Responding Party provides responses to the request such responses do not constitute 4 any such admission that any such particular event occurred. 5 6 7 8 9 l0 ll t2 Responding Party objects to the request to the extent it assumes facts that have not been established, that are not true, or that are inaccurate. Responding Party objects to the request to the extent it requires answers greater than, beyond the requirements of, and/or at variance to applicable California law. Responding Party objects to the request to the extent it does not adequately define the terms used in them. Responding Party objects to the request to the extent it seeks information that is not in Responding Party's possession, custody or control. Responding Party objects to the request to the extent it seeks to impose an obligation on = l3 fifBv_ ìv!^ u iõZ €ËoÇ t4 Responding Party to provide information for or on behalf of any person or entity other than l5 Responding Party. JJ ¿oõ dO, 8äEô.LË S OFz O¿ (u l6 Responding Party objects to the request to the extent that the discovery sought is t7 unreasonably cumulative or duplicative, or is obtainable from some other source that is more l8 convenient, less burdensome or less expensive. t9 The objections and responses herein are made without waiver of and with specific 20 preservation of all objections as to competency, relevancy, materiality, privilege, and admissibility 2l of the document or the subject matter thereof as evidence for any purpose and any proceeding in 22 this action (including trial) and in other actions. )7 24 25 REOUEST FOR PRODUCTI ON OF'DOCUMENTS NO.2 All communications between Six4Three, including without limitation Theodore Kramer, 26 Thomas Scaramellino, David Godkin, James Kruzer, Stuart Gross, and any other agent or 27 representative of Six4Three, and any third party individual or entity regarding Facebook's anti- 28 SLAPP motion, Six4Three's opposition to Facebook's anti-SLAPP motion, the Godkin NOTICE OF DEPOSITION WITH OBJECTIONS AND RESPONSES TO FAC PRODUC]'!ON OF DOCUMENTS TO STUART GROSS; Case No. CIV, 533328 FOR THE 4 of I Declaration or exhibits thereto, or other Facebook confidential information. For the avoidance 2 doubt, this includes but is not limited to media organizations and governmental entities, including J the Digital, Culture, Media and Sport Committee of the House of Commons ("DCMS 4 Committee"). 5 RESPONSE TO 6 TIEST F'OR PRODUCTION OF CIJMENTS NO.2 Responding Party objects to the request to the extent it seeks information that is protected 7 from disclosure by the attorney-client privilege, the work product doctrine, and any other 8 applicable privilege or doctrine protecting such information from disclosure, 9 Responding Party objeots to the request on the ground that it is overbroad in that it includes l0 within its scope documents concerning the drafting and filing of the referenced court filings and ll which have no relevance to the matters currently at issue, and therefore appear requested with the 12 purpose of harassing Responding Party and Mr. Gross. À^ l3 Responding Party objects to the request to any other extent that it is vague, overly broad, *59Ed vd?, €Ë;Ç 14 burdensome, and/or seeks information that is neither material, necessary, or likely to lead to the l5 discovery of admissible evidence. ãçõ= -l J Z2^q=< uQ 2Lr /. â Oa=ô¿ Ê¿ :EO-L OF z (h l6 t7 l8 Responding Party objects to the request on the ground and to the extent that it may not be possible to identify responsive documents based on the wording of the request. Responding Party objects to the request to the extent that the time for which production is t9 demanded is unreasonably short, particularly when considered in combination with the 20 aforementioned over-breadth of the request and the inability to access information potentially 2l subject to the request, 22 ZJ 24 Responding Party objects to the request to the extent it seeks confidential financial, proprietary, business or personal information. Responding Party objects to the request to the extent it impermissibly seeks to compel 25 through its phrasing the admission by Respondin gParty that any particular event occurred, To the 26 extent that Responding Party provides responses to the request such responses do not constitute 27 any such admission that any such particular event occurred. 28 Responding Party objects to the request to the extent it assumes facts that have not been TO FACEBOOK'S NOTICE OF DEPOSITION WITH REQUEST FOR THE OBJECTIONS AND PRODUCTION OF DOCUMENTS TO STUART GROSS; Casc No. CIV. 533328 5 I 2 J 4 5 6 7 8 9 l0 ll À^ JJoO? ãod.= ., ô-,.\ fifsY r Extensive evidence relevant to Facebook's data and privacy abuses  Theodore Kramer  To: damian.collins.mp@parliament.uk Mon, Oct 1, 2018 at 2:47 PM Damian,   I've been following your leadership in the House of Commons Culture, Media and Sport Select Committee over the past year and have been extremely impressed with your passion for finding the truth with regards to Brexit, Cambridge Analytica, and Facebook's involvement in all of the above.   My company has been in litigation with Facebook and Mark Zuckerberg for three years and has obtained extensive discovery of communications between Zuckerberg and numerous other Facebook executives and employees regarding Facebook's treatment of user data and third party developers from 2007 to 2015.   Just recently, Carole Cadwalladr of The Guardian published two articles related to our case and what we have uncovered during discovery since we filed suit.    https://www.theguardian.com/technology/2018/may/24/mark­zuckerberg­set­up­fraudulent­scheme­weaponise­data­ facebook­court­case­alleges   https://www.theguardian.com/technology/2018/may/24/facebook­accused­of­conducting­mass­surveillance­through­its­ apps?CMP=share_btn_tw   I believe the information we have uncovered demonstrates clearly that Facebook violated the privacy of US citizens and its prior settlement with the FTC.    I have attempted to summarize the public information from our case below. I have also attached a summary of public information regarding the conduct and our most recent opposition filed in California State Superior Court.   Finally, I have attached a document that should assist you and your committee as you approach Facebook for documentation and evidence related to the company's handling of user data since January 1st, 2012.  Carole recommended we send it to you.    I would really like to take the opportunity to talk to you about our case. Would you and your staff be open to a phone call?    Regards,   Ted Kramer   ­­ We believe the evidence obtained in our ongoing litigation demonstrates that Zuckerberg architected a fraudulent scheme in mid­2012 in discussions with Chris Cox, Javier Olivan, Sheryl Sandberg, Dan Rose and Sam Lessin, among others. The purpose of the scheme was to weaponize friend data in order to unfairly boost Facebook’s transition from desktop to mobile advertising and to wipe out competition in messaging, contact, photo, video and other consumer software markets. The scheme entailed Facebook entirely ignoring its policies and privacy settings on user data (particularly friend data) for organizations that provided revenues or other financial benefit to Facebook in order to boost its user growth and mobile ad sales. We allege the scheme was communicated to senior Platform employees in October and November 2012, at which time they had planned a public announcement to remove friend data, but Zuckerberg directed them not to do so. Instead, from 2012 on, Zuckerberg used friend data maliciously as a stick to force companies to buy mobile ads to save Facebook's advertising business, which was not prepared for the transition from desktop computers to mobile phones. In other words, Zuckerberg tied the unrelated data and advertising products together in a malicious way. For companies who paid up in mobile ads, Zuckerberg didn't care what they did with the friend data. For companies who wouldn't pay for mobile ads or that Zuckerberg considered too competitive, Zuckerberg shut off their access to friend data even though Facebook made it available to all developers at the time. We have uncovered numerous instances of Facebook recognizing a policy violation related to user data and deciding not to enforce it in order to avoid interruption of purchases in its nascent mobile app install ads product.   Further, throughout this period from 2012 to 2015, Facebook never provided third party developers with any privacy settings when it passed user data. In other words, if Facebook knew that a user had set a photo for only "friends" to see, it refused to pass that information along to the third party developer notwithstanding that employees reported this "bug" for years. Thus, it was not even possible for Professor Kogan and Cambridge Analytica to determine how one of the quiz app's users wanted their data treated. That doesn't negate the wrongful conduct of Cambridge Analytica and others, but it does demonstrate that Facebook was the initially culpable actor here, not a third party. Facebook also deliberately took no further measures from 2012 to 2014 in order to make privacy controls around friend data more transparent and ubiquitous. This was not an accident. This was done deliberately to enable Zuckerberg to weaponize the friend data to boost partners who paid Facebook extraordinary sums in mobile advertisements that saved Facebook's advertising business in late 2012 and 2013. Facebook would not have the business it has today if Zuckerberg had not deliberately created the environment that Cambridge Analytica exploited. In sum, the Cambridge Analytica abuse was only possible because Zuckerberg became very desperate in mid/late 2012 to save his advertising business, which was collapsing due to the fact that people began using smartphones instead of computers.   Zuckerberg's scheme to arbitrarily enforce policies and friend data access based on mobile ad payments was concealed from most Facebook employees until very late 2013. Zuckerberg had begun working on a false privacy narrative for the scheme as early as 2012 and began testing it with employees in early 2013. The scheme was announced as Graph API 2.0 on April 30, 2014 with an entirely false privacy narrative (that the executives who implemented it self­consciously recognized as false) and which hid Facebook’s decision to put a wall around its Platform behind the announcement of an unrelated project revamping Facebook’s Login product. Interestingly, Facebook's original announcement removing friend data in April 2014 noted only that "several rarely used endpoints" were being removed. Internal emails show that these endpoints, including friend data, were the most widely used in Platform, contradicting Facebook's public claims. The fact that these endpoints were widely used appears obvious now in light of the fact that Cambridge Analytica used them to access data for 50 million consumers. Thus, Facebook's 2015 statement that the endpoints were "rarely used" is at best intentionally misleading.   Finally, we have alleged that Facebook engaged in almost a dozen projects after the FTC Order in which Facebook misled users regarding how their data was treated, ranging from commingling Onavo data with Facebook data prior to any update to the Onavo terms of service to the decision to track the texts and call logs of Android users without sign off from the privacy and legal departments at Facebook (and without updating the Facebook Android permissions) to deliberately ignoring privacy settings for a popular Facebook feature to Zuckerberg's repeated requests that when a user sets the privacy on a piece of data to "only me" that Facebook must make that setting "unsticky" to encourage users to share their data more broadly than they feel comfortable doing.   3 attachments Summary of Complaint.pdf  234K FILED Corrected Opp to Individual Defendants Anti­SLAPP.pdf  2423K Requests for Production_six4three.pdf  94K EXHIBIT 2 Theodore Kramer  Extensive evidence relevant to Facebook's data and privacy abuses  COLLINS, Damian  To: Theodore Kramer  Cc: Damian Collins  Sat, Nov 3, 2018 at 3:28 PM Dear Ted   Thank you so much for getting in touch about this. I have spoke with Carole about this and would really like to do anything I can to help on this very important issue.   Carole has suggested I write to you with the following request [see below] – can I just check with you directly that this is correct   I have also copied in here my private gmail and my UK mobile phone number is +447775947158   We are planning an international meeting of the select committee on 27th November and this could provide the perfect opportunity to explore the issues that you have been involved with   Best wishes   Damian     I write concerning documents in your possession related to the matter of Six4Three, LLC v. Facebook, Inc., filed on April 10, 2015 in California Superior Court, County of San Mateo (CIV533328). The following categories of documents have been deemed highly relevant to ongoing Committee investigations:    Unredacted copy of Plaintiff Six4Three's Corrected Memorandum of Points and Authorities in Opposition to Defendants' Special Motions to Strike (Anti-SLAPP) filed on May 18, 2018;   Unredacted copy of the Declaration of David S. Godkin in Support of Six4Three's Anti-SLAPP Opposition ("Godkin Anti-SLAPP Declaration") filed concurrently therewith on May 18, 2018;   Exhibits 1-212 to the Godkin Anti-SLAPP Declaration filed on May 18, 2018;   All documents containing summaries or analyses of any of the exhibits to the Godkin Anti-SLAPP Declaration filed on May 18, 2018.             Damian Collins MP for Folkestone and Hythe Chair of the Digital, Culture, Media and Sport Select Committee   T 020 7219 7072 www.damiancollins.com       From: Theodore Kramer   Date: Monday, 1 October 2018 at 19:47  To: Damian Collins   Subject: Extensive evidence relevant to Facebook's data and privacy abuses   Damian, [Quoted text hidden] UK Parliament Disclaimer: this e­mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This e­mail has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this e­mail. This e­mail address is not secure, is not encrypted and should not be used for sensitive data. EXHIBIT 3 Theodore Kramer  Extensive evidence relevant to Facebook's data and privacy abuses  Theodore Kramer  To: damian.collins.mp@parliament.uk Cc: damianntc@googlemail.com Sun, Nov 4, 2018 at 6:29 PM Dear Mr. Collins,   Thanks for your note. I can confirm that your description of the documents in my possession is accurate. These documents are subject to confidentiality under a protective order entered in San Mateo Superior Court in California. Carole mentioned you may be seeking to subpoena the documents. I will agree to accept service of a subpoena mailed to my home address: 1267 Chestnut St., Apt 6, San Francisco, California 94109.   Upon receipt of any subpoena, I would be required to notify Facebook. If Facebook wishes to prevent my compliance, it will need to take action in appropriate fora.     If you wish to speak, it is best we setup a phone call with a conference line. We always have a member of our legal team on the line to ensure we have witnesses of what was discussed in the event Facebook takes retributive action against us.     My personal view is that the documents you list in your note contain information highly relevant to your investigation regarding Facebook's data practices, and further that it would be impossible for the investigation to reach any legitimate conclusions without a thorough review of this information.    Regards,   Ted   On Sat, Nov 3, 2018 at 12:28 PM COLLINS, Damian  wrote:  Dear Ted   Thank you so much for getting in touch about this. I have spoke with Carole about this and would really like to do anything I can to help on this very important issue.   Carole has suggested I write to you with the following request [see below] – can I just check with you directly that this is correct   I have also copied in here my private gmail and my UK mobile phone number is +447775947158   We are planning an international meeting of the select committee on 27th November and this could provide the perfect opportunity to explore the issues that you have been involved with   Best wishes   Damian     I write concerning documents in your possession related to the matter of Six4Three, LLC v. Facebook, Inc., filed on April 10, 2015 in California Superior Court, County of San Mateo (CIV533328). The following categories of documents have been deemed highly relevant to ongoing Committee investigations:    Unredacted copy of Plaintiff Six4Three's Corrected Memorandum of Points and Authorities in Opposition to Defendants' Special Motions to Strike (Anti-SLAPP) filed on May 18, 2018;   Unredacted copy of the Declaration of David S. Godkin in Support of Six4Three's Anti-SLAPP Opposition ("Godkin Anti-SLAPP Declaration") filed concurrently therewith on May 18, 2018;   Exhibits 1-212 to the Godkin Anti-SLAPP Declaration filed on May 18, 2018;   All documents containing summaries or analyses of any of the exhibits to the Godkin Anti-SLAPP Declaration filed on May 18, 2018.             Damian Collins MP for Folkestone and Hythe Chair of the Digital, Culture, Media and Sport Select Committee   T 020 7219 7072 www.damiancollins.com       From: Theodore Kramer   Date: Monday, 1 October 2018 at 19:47  To: Damian Collins   Subject: Extensive evidence relevant to Facebook's data and privacy abuses   Damian,   I've been following your leadership in the House of Commons Culture, Media and Sport Select Committee over the past year and have been extremely impressed with your passion for finding the truth with regards to Brexit, Cambridge Analytica, and Facebook's involvement in all of the above.   My company has been in litigation with Facebook and Mark Zuckerberg for three years and has obtained extensive discovery of communications between Zuckerberg and numerous other Facebook executives and employees regarding Facebook's treatment of user data and third party developers from 2007 to 2015.   Just recently, Carole Cadwalladr of The Guardian published two articles related to our case and what we have uncovered during discovery since we filed suit.    https://www.theguardian.com/technology/2018/may/24/mark­zuckerberg­set­up­fraudulent­scheme­weaponise­data­ facebook­court­case­alleges   https://www.theguardian.com/technology/2018/may/24/facebook­accused­of­conducting­mass­surveillance­through­its­ apps?CMP=share_btn_tw   I believe the information we have uncovered demonstrates clearly that Facebook violated the privacy of US citizens and its prior settlement with the FTC.   I have attempted to summarize the public information from our case below. I have also attached a summary of public information regarding the conduct and our most recent opposition filed in California State Superior Court.   Finally, I have attached a document that should assist you and your committee as you approach Facebook for documentation and evidence related to the company's handling of user data since January 1st, 2012.  Carole recommended we send it to you.    I would really like to take the opportunity to talk to you about our case. Would you and your staff be open to a phone call?    Regards,   Ted Kramer   ­­ We believe the evidence obtained in our ongoing litigation demonstrates that Zuckerberg architected a fraudulent scheme in mid­2012 in discussions with Chris Cox, Javier Olivan, Sheryl Sandberg, Dan Rose and Sam Lessin, among others. The purpose of the scheme was to weaponize friend data in order to unfairly boost Facebook’s transition from desktop to mobile advertising and to wipe out competition in messaging, contact, photo, video and other consumer software markets. The scheme entailed Facebook entirely ignoring its policies and privacy settings on user data (particularly friend data) for organizations that provided revenues or other financial benefit to Facebook in order to boost its user growth and mobile ad sales. We allege the scheme was communicated to senior Platform employees in October and November 2012, at which time they had planned a public announcement to remove friend data, but Zuckerberg directed them not to do so. Instead, from 2012 on, Zuckerberg used friend data maliciously as a stick to force companies to buy mobile ads to save Facebook's advertising business, which was not prepared for the transition from desktop computers to mobile phones. In other words, Zuckerberg tied the unrelated data and advertising products together in a malicious way. For companies who paid up in mobile ads, Zuckerberg didn't care what they did with the friend data. For companies who wouldn't pay for mobile ads or that Zuckerberg considered too competitive, Zuckerberg shut off their access to friend data even though Facebook made it available to all developers at the time. We have uncovered numerous instances of Facebook recognizing a policy violation related to user data and deciding not to enforce it in order to avoid interruption of purchases in its nascent mobile app install ads product.   Further, throughout this period from 2012 to 2015, Facebook never provided third party developers with any privacy settings when it passed user data. In other words, if Facebook knew that a user had set a photo for only "friends" to see, it refused to pass that information along to the third party developer notwithstanding that employees reported this "bug" for years. Thus, it was not even possible for Professor Kogan and Cambridge Analytica to determine how one of the quiz app's users wanted their data treated. That doesn't negate the wrongful conduct of Cambridge Analytica and others, but it does demonstrate that Facebook was the initially culpable actor here, not a third party. Facebook also deliberately took no further measures from 2012 to 2014 in order to make privacy controls around friend data more transparent and ubiquitous. This was not an accident. This was done deliberately to enable Zuckerberg to weaponize the friend data to boost partners who paid Facebook extraordinary sums in mobile advertisements that saved Facebook's advertising business in late 2012 and 2013. Facebook would not have the business it has today if Zuckerberg had not deliberately created the environment that Cambridge Analytica exploited. In sum, the Cambridge Analytica abuse was only possible because Zuckerberg became very desperate in mid/late 2012 to save his advertising business, which was collapsing due to the fact that people began using smartphones instead of computers.   Zuckerberg's scheme to arbitrarily enforce policies and friend data access based on mobile ad payments was concealed from most Facebook employees until very late 2013. Zuckerberg had begun working on a false privacy narrative for the scheme as early as 2012 and began testing it with employees in early 2013. The scheme was announced as Graph API 2.0 on April 30, 2014 with an entirely false privacy narrative (that the executives who implemented it self­consciously recognized as false) and which hid Facebook’s decision to put a wall around its Platform behind the announcement of an unrelated project revamping Facebook’s Login product. Interestingly, Facebook's original announcement removing friend data in April 2014 noted only that "several rarely used endpoints" were being removed. Internal emails show that these endpoints, including friend data, were the most widely used in Platform, contradicting Facebook's public claims. The fact that these endpoints were widely used appears obvious now in light of the fact that Cambridge Analytica used them to access data for 50 million consumers. Thus, Facebook's 2015 statement that the endpoints were "rarely used" is at best intentionally misleading.   Finally, we have alleged that Facebook engaged in almost a dozen projects after the FTC Order in which Facebook misled users regarding how their data was treated, ranging from commingling Onavo data with Facebook data prior to any update to the Onavo terms of service to the decision to track the texts and call logs of Android users without sign off from the privacy and legal departments at Facebook (and without updating the Facebook Android permissions) to deliberately ignoring privacy settings for a popular Facebook feature to Zuckerberg's repeated requests that when a user sets the privacy on a piece of data to "only me" that Facebook must make that setting "unsticky" to encourage users to share their data more broadly than they feel comfortable doing. UK Parliament Disclaimer: this e­mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This e­ mail has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this e­ mail. This e­mail address is not secure, is not encrypted and should not be used for sensitive data. EXHIBIT 4 Theodore Kramer  FW: Letter from DCMS Committee  Theodore Kramer  To: "CHALLENDER, Chloe"  Mon, Nov 12, 2018 at 6:40 PM Ms. Challender,    I received your letter. I can not comply with your request that I voluntarily disclose the materials you have requested as they are subject to a protective order in California Superior Court.    Regards, Ted     On Thu, Nov 8, 2018 at 11:50 PM CHALLENDER, Chloe  wrote:  Dear Mr Kramer I just wanted to check that you had received my email? Thanks  Chloe   Chloe Challender  Clerk   Digital, Culture, Media and Sport Committee   House of Commons   London SW1A 0AA Tel: 020 7219 6120   E­mail: challenderc@parliament.uk www.parliament.uk/cms    @CommonsCMS   From: CHALLENDER, Chloe   Sent: 06 November 2018 16:54  To: 'theodore.kramer@gmail.com'   Cc: WILLOWS, Josephine ; Culture, Media & Sport Committee   Subject: FW: Letter from DCMS Committee   Dear Mr Kramer   If I may introduce myself, I am Clerk of the Digital, Culture, Media and Sport Committee here in the UK House of Commons.   I am writing on behalf of the Chair, Damian Collins MP. I understand that Mr Collins has been in touch with you about documents in your possession that may be helpful to our Fake News inquiry.   Mr Collins has edited the early draft of the letter that you may have seen; the new version is attached. We plan to send this to you in the post tomorrow. Damian wished to say that we are happy to publish the letter if this would be of assistance. Please let me know what you think?   Best wishes, Chloe     Chloe Challender  Clerk   Digital, Culture, Media and Sport Committee   House of Commons   London SW1A 0AA Tel: 020 7219 6120   E­mail: challenderc@parliament.uk www.parliament.uk/cms    @CommonsCMS     UK Parliament Disclaimer: this e­mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This e­ mail has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this e­ mail. This e­mail address is not secure, is not encrypted and should not be used for sensitive data. Digital, Culture, Media and Sport Committee House of Commons, London SW1A 0AA Tel 020 7219 6120 Email cmscom@parliament.uk Website Mr Theodore Kramer 1267 Chestnut St., Apt 6, San Francisco, California 94109 USA 6 November 2018 Dear Mr Kramer The UK House of Commons Digital, Culture, Media and Sport Committee, of which I am Chair, would like to request several documents that we believe to be in your posseSsion. They relate to the matter of Six4Three, LLC v. Facebook, Inc., filed on April 10, 2015 in California Superior Court, County of San Mateo (CIV533328). The following categories of documents have been deemed highly relevant to ongoing Committee investigations: - Unredacted copy of Plaintiff Six4Three's Corrected Memorandum of Points and Authorities in Opposition to Defendants' Special Motions to Strike filed on May 18, 2018; - Unredacted copy of the Declaration of David S. Godkin in Support of Six4Three's Opposition (?Godkin Declaration") filed concurrently therewith on May 18, 2018; Exhibits 1-212 to the Godkin Declaration filed on May 18, 2018; All documents containing summaries or analyses of any of the exhibits to the Godkin Declaration filed on May 18, 2018. I should highlight that, if any disclosure of this material to the Committee has consequences in the US courts, the Committee cannot protect you. Committee proceedings are subject to parliamentary privilege in the United Kingdom under Article IX of the 1689 Bill of Rights, but this legislation does not have extraterritorial effect and could not be expected to be upheld in a US court. Damian Collins MP Chair, Digital, Culture, Media and Sport Committee Yours sincerely, EXHIBIT 5 Theodore Kramer  Extensive evidence relevant to Facebook's data and privacy abuses  COLLINS, Damian  To: Theodore Kramer  Tue, Nov 13, 2018 at 1:13 PM Ted   One other thought, following the email I sent to you earlier.   Would we be clear to publish what you have already sent us as written evidence without there being any repercussions for you? [Whilst we have immunity, you still need to consider your own position]   Also would there be any other documents you could give us which are unrestricted and might help to add to the story?   Best wishes   Damian     Damian Collins MP for Folkestone and Hythe Chair of the Digital, Culture, Media and Sport Select Committee   T 020 7219 7072 www.damiancollins.com       From: Theodore Kramer   Date: Monday, 1 October 2018 at 19:47  To: Damian Collins   Subject: Extensive evidence relevant to Facebook's data and privacy abuses   Damian, [Quoted text hidden] UK Parliament Disclaimer: this e­mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This e­mail has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this e­mail. This e­mail address is not secure, is not encrypted and should not be used for sensitive data. EXHIBIT 6 Theodore Kramer  Accepted: Ted/Carole @ Mon Nov 19, 2018 9am ­ 10:30am (PST) (Theodore Kramer)  Carole Cadwalladr  Reply­To: Carole Cadwalladr  To: theodore.kramer@gmail.com Mon, Nov 19, 2018 at 3:01 AM Carole Cadwalladr has accepted this invitation. Ted/Carole When Mon Nov 19, 2018 9am – 10:30am Pacific Time ­ Los Angeles Where London Marriott Hotel County Hall, London County Hall, Westminster Bridge Rd, South Bank, London SE1 7PB, UK (map) Calendar Theodore Kramer Who • Theodore Kramer ­ organizer • carole_cadwalladr@hotmail.com • Carole Cadwalladr Invitation from Google Calendar You are receiving this email at the account theodore.kramer@gmail.com because you are subscribed for invitation replies on calendar Theodore Kramer. To stop receiving these emails, please log in to https://www.google.com/calendar/ and change your notification settings for this calendar. Forwarding this invitation could allow any recipient to modify your RSVP response. Learn More.   This e­mail and all attachments are confidential and may also be privileged. If you are not the named recipient, please notify the sender and delete the e­mail and all attachments immediately. Do not disclose the contents to another person. You may not use the information for any purpose, or store, or copy, it in any way.  Guardian News & Media Limited is not liable for any computer viruses or other material transmitted with or as part of this e­mail. You should employ virus checking software.   Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings Place, 90 York Way, London, N1P 2AP.  Registered in England Number 908396       invite.ics  1K EXHIBIT 7 Digital, Culture, Media and Sport Committee House of Commons, London SW1A 0AA Tel 020 7219 6120 Email cmscom@parliament.uk Website Mr Theodore Kramer London Marriott Hotel County Hall Westminster Bridge Rd London SE1 7PB 19th November 2018 Dear Mr Kramer, Order for documents The Digital, Culture, Media and Sport Committee has been given the power by the House of Commons under Standing Order No. 152(4) "to send for persons, papers and records?. This includes the power to compel the production of papers by people within UK jurisdiction. On Monday 19 November, the Committee made the following order (which will be published in its formal minutes in due course): Ordered, That Mr Theodore Kramer submit the following documents to the DCMS Committee in relation to its inquiry into Disinformation and 'fake news', by 5pm on 20th November 2018: Unredacted copies of Six4Three's opposition to the (strategic lawsuits against public participation) motion, filed in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating Six4Three's opposition to the motion. We are requesting these documents because we believe that they contain information that is highly relevant to our ongoing investigation into disinformation and fake news. In particular, we are interested to know whether they can provide further insights to the committee about what senior executives at Facebook knew about concerns relating to Facebook users? data privacy, and developers' access to user data. The Committee's request is made for these reasons, and in no way suggests any support for the position of your organisation in its dispute with Facebook. As noted in Erskine May?s Parliamentary Practice: "there is no restriction on the power of committees to require the production of papers by private bodies or individuals provided that such papers are relevant to the committee's work as defined by its order of reference. Solicitors have been ordered to produce papers relating to a client? (Erskine May, Parliamentary Practice, 24th edition, 2011, p.819.) As Erskine May also notes: ?Individuals have been held in contempt who have disobeyed or frustrated committee orders for the production of papers? (p.839). Should you fail to comply with the order of the Committee and were found to be in contempt, you could face investigation and sanction by the House. We require the documents by 5pm on Tuesday 20th November 2018. I look fonNard to your compliance with this Order. Yours sincerely, DAMIAN COLLINS MP CHAIR, DIGITAL, CULTURE, MEDIA AND SPORT COMMITTEE Digital, Culture, Media and Sport Committee House of Commons, London SW1A 0AA Tel 020 7219 6120 Email cmscom@parliament.uk Website 19 November 2018 Extract from formal minutes of the Committee of 19 November 2018: Ordered, That Mr Theodore Kramer submit the following documents to the DCMS Committee in relation to its inquiry into Disinformation and ?fake news?, by 5pm on 20th November 2018: Unredacted copies of Six4Three's opposition to the (strategic lawsuits against public participation) motion, ?led in the California courts, relating to the company?s dispute with Facebook, along with any documents or notes relating Six4Three's opposition to the motion. DAMIAN COLLINS MP CHAIR, DCMS COMMITTEE EXHIBIT 8 Digital, Culture, Media and Sport Committee House of Commons, London SW1A 0AA Tel 020 7219 6120; Email: Website: Mr Theodore Kramer London Marriott Hotel County Hall Westminster Bridge Rd London 851 7PB 21 November 2018 Dear Mr Kramer, MW i wrote to you on Monday 19 November to order documents under the Committee?s power under Standing Order No. 152(4) "to send for persons, papers and records". This includes the power to compel the production of papers by people within UK jurisdiction. (. As i said, on Monday 19 November, the Committee made the following order (which will be published in its formal minutes in due course): t?ll?IOrdered, That Mr Theodore Kramer submit the following documents to the DCMS Committee in relation to its inquiry into Disinformation and ?fake news', by 5pm on 20th November 2018: . o'fsls - Unredacted copies of Six4Three's opposition to the (strategic lawsuits against public participation) motion, ?led in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating Six4Three's opposition to the motion. You did not comply with this order by the 5pm deadline and failed to supply us with a satisfactory reason for not doing so. We are re-issuing the Order, with a deadline of 11am today. Should you fail to respond by this time it will be my duty to ask the Committee immediately to report this matter to the House of Commons, and request that it take action against you. As a resu\t of fading to comply with an Order of the Committee you could be considered to be acting in contempt and face investigation and sanction by the House. that the Serjeant at Arms, as warrant officer of the House, deliver this \etter mu AND SPORT commas EXHIBIT 9 Digital, Culture, Media and Sport Committee House of Commons, London SW1A 0AA Tel 020 7219 5120; Email: cmscongarliamentuk; Website: Mr Theodore Kramer London Marriott Hotel County Hall Westminster Bridge Rd London SE1 7P3 21 November 2018 Dear Mr Kramer, Or for cumen On Monday 19 November, the Committee made the following Order: Ordered, That Mr Theodore Kramer submit the following documents to the DCMS Committee in relation to its inquiry into Disinformation and ?fake news?, by 5pm on 20th November 2018: Unredacted copies of Six4Three's opposition to the [strategic lawsuits against public participation) motion, ?led in the California courts, relating to the company?s dispute with Facebook, along with any documents or notes relating Six4Three's opposition to the motion. You did not comply with this order by the 5pm deadline, and failed to supply us with a satisfactory reason for not doing so. I re-issued the Order on 20 November, with a deadline of 11am today. In the accompanying letter, I warned you that, should you fail to respond by the 11am deadline today, it would be my duty to ask the Committee immediately to report this matter to the House of Commons, and request that it take action against you. As a result of failing to comply with an Order of the Committee you could be considered to be acting in contempt and face investigation and sanction by the House. The letter was delivered to you in person at 9am this morning by the Serjeant at Arms, as warrant officer of the House. You again failed to comply. As a result, the Committee met at 11am and formally ordered that I report your non- compliance to the House. I have taken this action, and reported your failure to comply to the House. This will appear on today?s formal record, and the process of investigation will commence. Yours sincerely, DAMIAN COLLINS MP, CHAIR, DIGITAL, CULTURE, MEDIA AND SPORT COMMITTEE EXHIBIT 10 Digital, Culture, Media and Sport Committee House of Commons, London SW1A 0AA Tel 020 7219 6120; Email: cmscongarliamentLulg; Website: Mr Theodore Kramer 1267 Chestnut Street Apt 6, San Francisco California 94109 22 November 2018 Dear Mr Kramer This letter con?rms that Six4Three have provided the documents that the Committee ordered. We are grateful for your compliance. The Committee does not propose to take any further steps in respect of any potential contempt of Parliament. Yours sincerely, DAMIAN COLLINS MP CHAIR, DIGITAL, CULTURE, MEDIA AND SPORT CONIMITTEE EXHIBIT 46 I 2 4 Stuart G. Gross (#251019) sgross@grosskleinlaw. com Benjamin H. Klein (#313922) bklein@grosskleinlaw. com GROSS & KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94lll (4ts) 67t-4628 5 Of counsel: 6 7 8 9 l0 ll t2 David S. Godkin (admittedpro hac vice) (admittedpro hac vice) BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, MA02210 (617) 307-6100 James E. Kruzer baumgodkin.com Attorneys for Plaintiff, SIX4THREE, LLC, a Delaware limited liability company l3 t4 SUPERIOR COURT OF CALIFORNIA l5 COLINTY OF SAN MATEO t6 l7 l8 SIX4THREE, LLC, liability company, a Delaware Plaintiff, t9 20 FACEBOOK,INC., etal, 2l Defendants. 22 23 limited ) ) Case No. CIV 533328 Assigned for all purposes to Hon. V. Raymond Swope, Dept.23 ) ) DECLARATION OF' DAVID S. ) GODKIN IN SUPPORT OF' ) PLAINTIFF'S BRIEF IN RESPONSE ) TO NOVEMBER 20,2018 ORDER ) ) 23 ) Department Judge: Honorable V. Raymond Swope Filing Date: April 10,2015 Trial Date: April25,2019 ) 24 25 26 )1 28 GROSS & KLEIN LLP TI.IE I]ì\,fl]ARCADERO PrER 9, SUrrtr 100 s^N lìR NCISCO, C^ 94111 DECLARATION OF DAVID S. GODKIN IN SUPPORT OF PLAINTIFF'S BRIEF IN RESPONSE TO NOVEMBER 20,2018 ORDER;Case No. CIV 533328 I, David S. Godkin, declare: 2 make this Declaration from personal knowledge, and 5 competently testify thereto. 2. if called to testify, I could and would Attached hereto as Exhibit 1 is a true and correct copy of a letter I sent to the 7 Digital Culture, Media and Sports Committee of the United Kingdom's House of Commons 8 ("DCMS") on November ll 12 l3 3. 19, 2018. Attached hereto as Exhibit 2 is a true and correct copy of a letter I sent to Durie Tangri on November 19, 2018. 4. My administrative assistant forwarded to Mr. Kramer copies of Exhibit I and Exhibit 2 to my declaration just after they were sent to DCMS and Durie Tangri, respectively. 5. On the evening of November 19,2018, Defendants' counsel sent a letter to t4 PlaintifPs counsel that stated inter alia "[u]nder the plain terms of the protective order, Mr. l5 Kramer should not have access to Facebook's Highly Confidential Information, including 16 Six4Three's unredacted opposition to Facebook's anti-SLAPP briefing." Attached hereto as l7 Exhibit 3 is a true and correct copy of the letter Durie Tangri sent to Plaintiff s counsel on l8 November 19,2018. t9 6. I understood, at the time of receipt of Exhibit 3, that Mr. Kramer did not have 20 access to any documents or information designated highly confidential. Thus, I, along with Mr. 21 Gross immediately took actions to determine what, if any, basis there was for the suggestion by 22 Defendants' counsel that Mr. Kramer had such access. 23 7. We learned that a shared location had been created on a dropbox account into 24 which some documents designated as highly confidential and summaries of those documents 25 had been stored, and that because this dropbox account was owned by Six4Three, Mr. Kramer 26 technically had access to it as the administrator of the account. 27 28 8. In reaction, I confirmed that Mr. Kramer had never reviewed any such documents or summaries and immediately took actions to have all such documents and LI-P 1]'IE EMBÀRCADERO PIER 9, SUII'E 'OOCA SAN FRÂNCISCO, & 4 l0 ,4 t at law and a member of the Law Offices of Bimbaum Godkin, LLP, counsel for plaintiff Six4Three, LLC ("643") in the above-captioned action. I 9 & Í Monday, November 19, 2018 8:12 PM ComplexCivil; Rebecca Huerta SERVICE-SIX4THREE;David Godkin; James Kruzer; Stuart Gross Six4Three v. Facebook (CIV533328) 2018-11-19 Godkin letter to DT re Order from Parliament.pdf Sent: To: Cc: Subject: Attachments: Ms. Huerta, I write with an urgent request for an ex parte hearing regarding Six4Three's imminent violation of the protective order. This is in addition but related to Facebook's request for an ex parte from earlier today. Six4Three's counsel sent us the attached letter this morning at 11:33 a.m., purporting Six4Three is planning to provide to the Digital, Culture, Media and Sport Committee House of Parliament: to put Facebook on notice that (the "DCMS Committee") of the UK Unredacted copies of Six4Three's opposition to the anti-SLAPP (strategic lawsuits against public participation) motion, filed in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating to Six4Thre's opposition to the anti-SLAPP motion. This is precisely the information that the Court ordered sealed and/or struck in its Order of November 1, 2018. And as the DCMS Committee's letter is neither a subpoena nor a court order in related litigation, Six4Three has no basis to disclose Facebook's confidential information under the Stipulated Protective Order. We have informed Six4Three of Facebook's position and asked them not to disclose Facebook's confidential information, under both to the Stipulated Protective Order and this Court's Order of November 1, 2018. Six4Three has not provided a response, and may disclose Facebook's confidential information as early as 9 a.m. pacific tomorrow. Understanding the extraordinary nature of its request, Facebook asks the Court to schedule an ex parte teleconference on this matter as soon as possible. In the event that Six4Three agrees to delay any disclosure until the Court has had an opportunity to address this matter, Facebook requests that this matter proceed along the same briefing schedule as set forth in the Court's email of 3:25 p.m. today regarding Facebook's ex parte application for expedited briefing on a motion for sanctions and contempt related to other violations of the Protective Order. Best regards, Laura Miller I Attorney I Durie Tangri LLP I 415-362-6666 I Imiller@durietangrLcom 1 David S. Godkin Direct Dial: (617) 307-6110 godkin@birnbaumgodkin.com November 19,2018 BY EMAIL Sona1 Mehta, Esq. Joshua Lerner, Esq. Laura Miller, Esq. Durie Tangri 217 Leidesdorff Street San Francisco, CA 94111 Re: Six4Three, LLC v. Facebook. Inc.. et at, California Superior Court, San Mateo Case No. Civ 533328 Dear Counsel: Please be advised that my client's principal, Ted Kramer, received this morning, November 19th, 2018, an Order for Documents ("Order," attached hereto as Exhibit A) from the Parliament of the United Kingdom to compel the production of certain documents in our possession, including: Unredacted copies of Six4Three's opposition to the anti-SLAPP (strategic lawsuits against public participation) motion, filed in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating Six4Three's opposition to the anti-SLAPP motion. Order, at 1. The Order further requires Mr. Kramer to comply no later than 5pm local time on Tuesday, November 20th, 2018 or he may be held in contempt and could face investigation and sanction by Parliament. Mr. Kramer is currently located in the United Kingdom for business meetings this week and is therefore subject to the jurisdiction of Parliament. Pursuant to the Protective Order entered October 25, 2016 ("Protective Order," attached hereto as Exhibit B), this letter serves as prompt (immediate) notice of the Order as required under Section 16(a) and of 643's intent to cooperate with respect to all reasonable and timely relief Facebook may seek in Parliament, pursuant to Section 16(c). Further, for avoidance of doubt, please note the procedure available to Defendants under the Protective Order: 280 SUMMER STREET, BOSTON, MA 02210. TEL: (617) 307-6100. FAX: (617) 307-6101 • www.birnbaumgodkin.com Sonal Mehta, Esq. Joshua Lerner, Esq. Laura Miller, Esq. November 19,2018 Page 2 If the designating party timely seeks a protective order, the party served with the subpoena or court order shall not produce any Confidential Information or Highly Confidential Information before a determination by the court from which the subpoena or order issued, unless the party has obtained the designating party's permission. The designating party shall bear the burden and expense of seeking protection in that court of its confidential material-and nothing in these provisions should be construed as authorizing or encouraging a receiving party in this action to disobey a lawful directive from another court. Protective Order, Section 16. Thus, if Facebook intends to seek relief in the Parliament of the United Kingdom, which is the entity "from which the subpoena or order issued," we request that you please do so prior to the deadline imposed by the Order. DSG:cam Attachments Cc: Catherine Kim, Esq. (By email) Service-Six4Three (By email) Stuart G. Gross, Esq. (By email) James E. Kruzer, Esq. (By email) EXHIBIT A e II e Digital, Culture, Media and Sport Committee House of Commons, London SW1A OAA Tel 020 7219 6120 Email cmscom@parliament.uk Website WWW,parlian:lentuk/cmS Mr Theodore Kramer London Marriott Hotel County Hall Westminster Bridge Rd London SEl 7PB 19th November 2018 Dear Mr Kramer, Order for documents The Digital, Culture, Media and Sport Committee has been given the power by the House of Commons under Standing Order No. 152(4) "to send for persons, papers and records". This includes the power to compel the production of papers by people within UKjurisdiction. On Monday 19 November, the Committee made the following order (which will be published in its formal minutes in due course): Ordered, That Mr Theodore Kramer submit the following documents to the DCMSCommittee in relation to its inquiry into Disinformation and 'fake news', by 5pm on 20th November 2018: Unredacted copies of Six4Three's opposition to the anti-SLAPP(strategic lawsuits against public participation) motion, filed in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating Six4Three'sopposition to the anti-SLAPPmotion. We are requesting these documents because we believe that they contain information that is highly relevant to our ongoing investigation into disinformation and fake news. In particular, we are interested to know whether they can provide further insights to the committee about what senior executives at Facebook knew about concerns relating to Facebook users' data privacy, and developers' accessto user data. The Committee's request is made for these reasons, and in no way suggests any support for the position of your organisation in its dispute with Facebook. As noted in Erskine May's Parliamentary Practice.: "there is no restriction on the power of committees to require the production of papers by private bodies or individuals provided that such papers are relevant to the committee's work asdefined by its order of reference. [...] Solicitors have been ordered to produce papers relating to a client" (Erskine May, Parliamentary Practice, 24th edition, 2011, p.819.) . As Erskine May also notes: "Individuals have been held in contempt who [...] have disobeyed or frustrated committee orders for the production of papers" (p.839). Should you fail to comply with the order ofthe Committee and were found to be in contempt, you could face investigation and sanction by the House. We require the documents by 5pm on Tuesday 20th November 2018. I look forward to your compliance with this Order. 1~ Yours sincerely, OJ,-- DAMIAN COLUNS MP CHAIR, DIGITAL, CULTURE, MEDIA AND SPORT COMMITTEE II Digital, Culture, Media and Sport Committee House of Commons, London SW1A OAA Tel 020 7219 6120 Email cmscom@parliament.uk Website\NWW.parliamentuklcms 19 November 2018 Extract from formal minutes of the Committee of 19 November 2018: Ordered, That Mr Theodore Kramer submit the following documents to the DCMS Committee in relation to its inquiry into Disinformation 20th November 2018: and 'fake news', by Spm on Unredacted copies of Six4Three's opposition to the anti-SLAPP (strategic lawsuits against public participation) motion, flled in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating Six4Three's opposition to the anti-SLAPP motion. DAMIAN COLLINS MP CHAIR, DCMS COMMITTEE EXHIBITB 2 3 4 5 6 ~\J ci~ 7 8 9 10 Julie E. Schwartz, Bar No. 260624 JSchwartz@perkinscoie.com PERKINS COlE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350 FILED SAN MATE.O COUNTY o James R. McCullagh, admitted pro hac vice JMcCullagh@perkinscoie.com PERKINS COlE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 T 2'0' 2016 .' Attorneys for Defendant Facebook, Inc. 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 14 15 SIX4THREE, LLC, a Delaware limited liability company, Plaintiff, 16 17 18 Case No. CIV533328 STIPULATED [pROPOSED] PROTECTIVE ORDER v. FACEBOOK, INC., a Delaware corporation and DOES 1-50, inclusive, 19 Defendant. 20 In order to protect confidential information obtained by the parties in connection with this 21 22 case, the palties, by and through their respective undersigned counsel and subject to the approval 23 of the COUlt, hereby agree as follows: Part One: Use Of Confidential Materials In Discovery 24 1. 25 Any party or non-party may designate as Confidential Information (by stamping 26 the relevant page or as otherwise set forth herein) any document or response to discovery which 27 that palty or non-party considers in good faith to contain information involving trade secrets, or 28 CIV533328 ORO Order 231729 1111111111111111111111111111111111111111 -1- STIPULA TED [PROPOSED] P.ROTECTIVE ORDER CASE NO. CIV533328 confidential business, financial, or personal information, including personal financial infonnation 2 about any individual or entity; information regarding any individual's or entity's banking 3 relationship with any banking institution, including information regarding financial transactions 4 or financial accounts, and any information regarding any individual or entity that is not otherwise 5 available to the public, subject to protection under Rules 2.550, 2.551, 2.580, 2.585, 8.160, and 6 8.490 of the California Rules of COUItor under other provisions of California law. Any pmty or 7 non-party may designate as Highly Confidential Infonnation (by stamping the relevant page or as 8 otherwise set forth herein) any document or response to discovery which that party or non-party 9 considers in good faith to contain information involving highly sensitive trade secrets or 10 confidential business, financial, or personal infonnation, the disclosure of which would result in 11 the disclosure of trade secrets or other highly sensitive research, development, production, 12 personnel, commercial, market, financial, or business infonnation, or highly sensitive personal 13 information, subject to protection under Rules 2.550, 2.551, 2.580, 2.585,8.160, and 8.490 of the 14 California Rules of Court or under other provisions of Cali fomi a law. Where a document or 15 response consists of more than one page, the first page and each page on which confidential 16 infonnation appears shall be so designated. 17 2. A party or non-party may designate information disclosed during a deposition or in 18 response to written discovery as Confidential Infonnation or Highly Confidential Information by 19 so indicating in said responses or on the record at the deposition and requesting the preparation of 20 a separate transcript of such material. In addition, a party or non-party may designate in writing, 21 within thirty (30) days after receipt of said responses or of the deposition transcript for which the 22 designation is proposed, that specific pages of the transcript and/or specific responses be treated 23 as Confidential Infonnation or Highly Confidential Infonnation. Any other party may object to 24 such proposal, in writing or on the record. Upon such objection, the parties shall follow the 25 procedures described in Paragraph 9 below. Until the thirty (30) day period for designation has 26 lapsed, the entirety of each deposition transcript shall be treated as Confidential Infonnation. 27 After the thirty (30) day period for designation has lapsed, any documents or information 28 designated pursuant to the procedure set forth in this paragraph shall be treated according to the -2- STIPULA TED [pROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 designation until the matter is resolved according to the procedures described in Paragraph 9 2 below, and counsel for all parties shall be responsible for marking all previously unmarked copies 3 of the designated material in their possession or control with the specified designation. A party 4 that makes original documents or materials available for inspection need not designate them as 5 Confidential Information or Highly Confidential [nformation until after the inspecting party has 6 indicated which materials it would like copied and produced. During the inspection and before the 7 designation and copying, all of the material made available for inspection shall be considered 8 Highly Confidential Information. 9 3. All Confidential Information or Highly Confidential Information produced or 10 exchanged in the course of this case (not including infOlmation that is publicly available) shall be .11 used by the party or parties to whom the information is produced solely for the purpose of this 12 case. Confidential Information or Highly Confidential Information shall not be used for any 13 commercial competitive, personal, or other purpose. Confidential Information or Highly 14 Confidential Information must be stored and maintained by a receiving palty at a location and in a 15 secure manner that ensures that access is limited to the persons authorized under this Stipulated 16 Protective Order. The protections confen'ed by this Stipulated Protective Order cover not only 17 the Confidential Information or Highly Confidential Information produced or exchanged in this 18 case, but also (1) any information copied or extracted from or reflecting the Confidential 19 InfOlmation or Highly Confidential Information; (2) all copies, excerpts, summaries, or 20 compilations of Confidential Information or Highly Confidential Information; and (3) any 21 testimony, conversations, or presentations by parties or their counsel that might reveal 22 Confidential Information or Highly Contidentiallnformation. 23 conferred by this Stipulated Protective Order do not cover the following information: (a) any 24 information that is in the public domain at the time of disclosure to a receiving party or becomes '25 part of the public domain after its disclosure to a receiving palty as a result of publication not 26 involving a violation of this Stipulated Protective Order, including becoming part of the public 27 record through trial or otherwise; and (b) any information known to the receiving party prior to However, the protections 28 -3- STIPULA TED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 the disclosure or obtained by the receiving party after the disclosure from a source who obtained 2 3 the information lawfully and under no obligation of confidentiality to the designating party. 4. Except with the prior written consent of the other parties, or upon prior order of 4 this Court obtained upon notice to opposing counsel, Confidential Infonnation shall not be 5 disclosed to any person other than: 6 (a) counsel for the respective parties to this litigation, including in-house counsel and co-counsel retained for this litigation; 7 8 (b) employees of such counsel; 9 (c) individual parties or officers or employees of a party, to the extent deemed 10 necessary by counsel for the prosecution or defense of this litigation; II (d) consultants or expert witnesses retained for the prosecution or defense of 12 this litigation, provided that each such person shall execute a copy of the 13 Certification annexed to this Order (which shall be retained by counsel to 14 the party so disclosing the Confidential Information and made available 15 for inspection by opposing counsel during the pendency or after the 16 termination of the action only upon good cause shown and upon order of 17 the.Court) before being shown or given any Confidential Information, and 18 provided that if the party chooses a consultant or expert employed by the 19 opposing party or one of its competitors, the party shall notify the 20 opposing party, or designating non-party, before disclosing any 21 Confidential Information to that individual and shall give the opposing 22 party an opportunity to rT,lovefor a protective order preventing or limiting 23 such disclosure; 24 (e) any authors or recipients of the Confidential Information or a custodian; 25 (f) the Court, court personnel, and court repOlters; and 26 (g) witnesses (other than persons described in Paragraph 4(e)). A witness shall 27 sign the Certification before being shown a confidential document. 28 Confidential Information may be disclosed to a witness who will not sign -4- STIPULA TED [pROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 the Celtification only in a deposition at which the party who designated 2 the Confidential Information is represented or has been given notice that 3 Confidential Information produced by the party may be used. At the 4 request of any party, the portion of the deposition transcript involving the 5 Confidential Information shall be designated "Confidential" 6 Paragraph 2 above. Witnesses shown Confidential Information shall not be 7 allowed to retain copies. 8 5. pursuant to Except with the prior written consent of the other parties, or upon prior order of 9 this Court obtained after notice to opposing counsel, Highly Confidential Information shall be 10 treated in the same manner as Confidential Information pursuant to Paragraph 4 above, except 11 that it shall not be disclosed to individual parties or directors, officers or employees of a party, or 12 to witnesses (other than persons described in Paragraph 4(a) or 4(e)). 13 6. Any persons receiving Confidential Information or Highly Confidential I4 Information shall not reveal or discuss such information to or with any person who is not entitled 15 to receive such information, except as set forth herein. If a party or any of its representatives, 16 including counsel, inadvertently discloses any Confidential Information or Highly Confidential ]7 Information to persons who are not authorized to use or possess such material, the party shall 18 provide immediate written notice of the disclosure to the party whose material was inadvertently ]9 disclosed. If a party has actual knowledge that Confidential Information or Highly Confidential 20 Information is being used or possessed by a person not authorized to use or possess that material, 21 regardless of how the material was disclosed or obtained by such person, the party shall provide 22 immediate written notice of the unauthorized use or possession to the party whose material is 23 being used or possessed. No party shall have an affirmative obligation to inform itself regarding 24 such possible use or possession. 25 7. In connection with discovery proceedings as to which a party submits Confidential 26 Information or Highly Confidential Information, all documents and chamber copies containing 27 Confidential Information or Highly Confidential Information which are submitted to the Court 28 shall be filed with the Court in sealed envelopes or other appropriate sealed containers. On the -5- STIPULA TED [PROPOSED] PROTECTfYE ORDER CASE NO. CIV533328 outside of the envelopes, a copy of the first page of the document shall be attached. If 2 Confidential Information or Highly Confidential Information is included in the first page attached 3 to the outside of the envelopes, it may be deleted from the outside copy. The word 4 "CONFIDENTIAL" 5 following form shall also be printed on the envelope: shall be stamped on the envelope and a statement substantially in the 6 "This envelope is sealed pursuant to Order of the Court, contains Confidential 7 Information and is not to be opened or the contents revealed, except by Order of the 8 Court or agreement by the parties." 9 8. A party may designate as Confidential Information or Highly Confidential 10 Information documents or discovery materials produced by a non-party by providing written 11 notice to all parties of the relevant document numbers or other identification within thirty (30) 12 days after receiving such documents or discovery materials. Until the thirty (30) day period for 13 designation has lapsed, any documents or discovery materials produced by a non-party shall be 14 treated at Confidential Information. Any party or non-palty may voluntarily disclose to others 15 without restriction any information designated by that party or nonparty as Confidential 16 Information or Highly Confidential Information, although a document may lose its confidential 17 status if it is made public. If a party produces materials designated Confidential Information or 18 Highly Confidential Information in compliance with this Order, that production shall be deemed 19 to have been made consistent with any confidentiality or privacy requirements mandated by local, 20 state or federal laws. 21 9. If a party contends that any material is not entitled to confidential treatment, such 22 party may at any time give written notice to the party or non-party who designated the material. 23 The party or non-party who designated the material shall have twenty (20) days from the receipt 24 of such written notice to apply to the Court for an order designating the material as confidential. 25 The party or non-party seeking the order has the burden of establishing that the document is 26 entitled to protection. 27 28 -6. STIPULA TED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 ] O. Notwithstanding any challenge to the designation of material as Confidential 2 Information or Highly Confidential Information, all documents shall be treated as such and shall 3 be subject to the provisions hereof unless and until one of the following occurs: 4 (a) the party or non-party who claims that the material is Confidential 5 Information or Highly Confidential Information withdraws such 6 designation in writing; or (b) 7 the party or non-party who claims that the material is Confidential 8 Information or Highly Confidential Information fails to apply to the Court 9 for an order designating the material confidential within the time period specified above after receipt of a written challenge to such designation; or 10 (c) 11 Confidential Information. 12 13 the Court rules the material is not Confidential Information or Highly ]1. All provisions of this Order restricting the communication or use of Confidential 14 Information or Highly Confidential Information shall continue to be binding after the conclusion 15 of this action, unless otherwise agreed or ordered. Upon conclusion of the litigation, a party in the 16 possession of Confidential Information or Highly Confidential Information shall within sixty (60) 17 days either (a) return such documents to counsel for the party or non-party who provided such 18 information, or (b) destroy such documents. Whether the Confidential Information or Highly 19 Confidential Information is returned or destroyed, the receiving party must submit a written 20 certification to the producing party (and, ifnot the same person or entity, to the designating party) 21 by the 60 day deadline that (1) all the Confidential Information or Highly Confidential 22 Information that was returned or destroyed, and (2) affirms that the receiving party has not 23 retained any copies, abstracts, compilations, summaries or any other format reproducing or 24 capturing any of the Confidential Information or Highly Confidential Information. 25 Notwithstanding 26 motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 27 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert 28 work product, even if such materials contain Confidential Information or Highly Confidential this provision, counsel are entitled to retain an archival copy of all pleadings, -7- STIPULA TED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Information. 2 Any such archival copies that contain or constitute Confidential Information or .Highly Confidential Information remain subject to this Stipulated Protective Order. The 3 conclusion of the litigation shall be deemed to be the later of (1) dismissal of all claims and 4 defenses in this action, with or without prejudice; and (2) final judgment herein after the 5 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 6 including the time limits for filing any motions or applications for extension oftiIne pursuant to 7 applicable law. After the conclusion of this action, this Court will retain jurisdiction to enforce 8 the terms of this Order. 9 12. Nothing herein shall be deemed to waive any applicable privilege or work product 10 protection, or to affect the ability of a party to seek relief for an inadvertent disclosure of material II protected by privilege or work product protection. Any witness or other person, firm or entity 12 from which discovery is sought may be infOl'med of and may obtain the protection of this Order 13 by written advice to the parties' respective counselor by oral advice at the time of any deposition 14 or similar proceeding. 15 13. In the event that any Confidential Information or Highly Confidential Information 16 is inadvertently produced without such designation, the party or non-party that inadvertently 17 produced the information without designation shall give written notice of such inadvertent 18 production promptly after the party or non-party discovers the inadveltent failure to designate 19 (but no later than fourteen (14) calendar days after the party or non-party discovers the 20 inadvertent failure to designate), together with a further copy of the subject information 21 designated as "CONFIDENTIAL" 22 Notice"). 23 information that was inadvertently produced without designation shall promptly destroy the 24 inadvertently produced information and all copies thereof, or, at the expense of the producing 25 party or non-party, retUl11such together with all copies of such information to counsel for the 26 producing party and shall retain only the newly-produced versions of that information that are 27 designated as "CONFIDENTIAL" 28 intended to apply to any inadvertent production of any information or materials protected by or "HIGHLY CONFIDENTIAL" (the "Inadvertent Production Upon receipt of such Inadvertent Production Notice, the party that received the or "HIGHLY CONFIDENTIAL." -8- STIPULATED This provision is not [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 attorney-client or work product privileges, which inadvertent production is governed by Section 2 3 14 below. 14. In the event that any party or non-party inadvertently produces information that is 4 privileged or otherwise protected from disclosure during the discovery process ("Inadvertent 5 Production Material"), the following shall apply: (a) 6 Such inadvertent production or disclosure shall in no way prejudice or 7 otherwise constitute a waiver of, or estoppel as to, any claim of attorney-client privilege, attorney 8 work product protection, or other applicable protection in this case or any other federal or state 9 proceeding, provided that the producing party shall notify the receiving palty in writing of such 10 protection or privilege promptly after the producing party discovers such materials have been 11 inadvertently produced. (b) 12 If a claim of inadvertent production is made, pursuant to this Stipulated 13 Protective Order, with respect to discovery material then in the custody of another party, that 14 party shall: (i) refrain from any further examination or disclosure of the claimed Inadvertent 15 Production Material; (ii) promptly make a good-faith effOlt to return the claimed Inadvertent 16 Production Material and all copies thereof (including summaries and excerpts) to counsel for the 17 producing party, or destroy all such claimed Inadvertent Production Material (including 18 summaries and excerpts) and certify in writing to that fact; and (iii) not disclose or use the 19 claimed Inadvertent Production Material for any purpose until fUlther order of the COUltexpressly 20 authorizing such use. (c) 21 A party may move the Court for an order compelling production of the 22 I~advertent Production Material on the ground that it is not, in fact, privileged or protected. The 23 motion shall be filed under seal and shall not assert as a ground for entering such an order the fact 24 or circumstance of the inadvertent production. 25 establishing the privileged or protected nature of any inadvertently disclosed or produced 26 information. 27 be treated in accordance with Paragraph 14(b) above. 28 The producing party retains the burden of While such a motion is pending, the Inadvertent Production Material at issue shall -9- STIPULA TED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 (d) If a party, in reviewing discovery material it has received from any other 2 party or any non-party, finds anything the reviewing party believes in good faith may be 3 Inadvertent Production Material, the reviewing party shall: (i) refrain from any further 4 examination or disclosure of the potentially Inadvertent Production Material; (ii) promptly 5 identify the material in question to the producing party (by document number or other equally 6 precise description); and (iii) give the producing party seven (7) days to respond as to whether the 7 producing party will make a claim of inadvertent production. 8 claim, the provisions of Paragraphs 14(a)-(c) above shall apply. 9 15. Ifthe producing party makes such a The parties agree that should the production of source code become necessary, 10 they will need to amend or supplement the terms of this Order. To the extent production of II source code becomes necessary in this case, the parties will work expeditiously to propose 12 amendments to this Order to cover any production of source code. 13 16. If a party is served with a subpoena or a cOUltorder issued in other litigation that 14 compels disclosure of any Confidential Information or Highly Confidentiallnformation, 15 receiving party must: (a) 16 17 the promptly notify in writing the designating party. Such notification shall i'nclude a copy of the subpoena or court order; (b) 18 promptly notify in writing the party who caused the subpoena or order to 19 issue in the other litigation that some or all of the material covered by the subpoena or order is 20 subject to this Stipulated Protective Order. Such notification shall include a copy of this 21 Stipulated Protective Order; and 22 (c) cooperate with respect to all reasonable procedures sought to be pursued by 23 the designating party whose Confidential Information or Highly Confidential Information may be 24 affected. 25 If the designating party timely seeks a protective order, the party served with the subpoena 26 or court order shall not produce any Confidential Information or Highly Confidential Information 27 before a determination by the court from which the subpoena or order issued, unless the party has 28 obtained the designating party's permission. The designating party shall bear the burden and -10- STIPULATED [pROPOSED] PROTECTIVE ORDER CASE NO, CIV533328 expense of seeking protection in that court of its confidential material-and nothing in these 2 provisions should be construed as authorizing or encouraging a receiving party in this action to 3 disobey a lawful directive from another court. 17. 4 The following additional terms apply to non-party discovery material: (a) 5 The terms of this Order are applicable to infOlmation produced by a non- 6 party in this action and designated as "CONFIDENTIAL" 7 Such information produced by non-parties in connection with this litigation is protected by the 8 remedies and relief provided by this Order. Nothing in these provisions should be construed as 9 prohibiting a non-party from seeking additional protections. 10 or "HIGfll.. Y CONFIDENTIAL," In the event that a party is required, by a valid discovery request, to (b) 11 produce a non-party's confidential information in its possession, and the party is subject to an 12 agreement with the non-party not to produce the non-party's confidential information, then the 13 party shall: 14 t. promptly notify in writing the requesting patty and the non-patty 15 that some or all of the information requested is subject to a confidentiality agreement with a non- 16 party; 17 II. promptly provide the non-palty with a copy of the Stipulated 18 Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 19 description of the information requested; and iii. 20 21 22 make the information requested available for inspection by the non- party. (c) If the non-party fails to object or seek a protective order from this COUlt 23 within 28 days of receiving the notice and accompanying information, the receiving party may 24 produce the non-party's confidential information responsive to the discovery request. If the non- 25 party timely seeks a protective order, the receiving party shall not produce any information in its 26 possession or control that is subject to the confidentiality agreement with the non-party before a 27 determination by the Court. Absent a court order to the contrary, the non-party shall bear the 28 -]1- STIPULA TED [pROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 burden and expense of seeking protection in this Court of its Confidential Information or Highly 2 Confidential Information. 18. 3 Nothing in this Stipulated Protective Order shall be construed to preclude any 4 party from asserting in good faith that certain Confidential Information or Highly Confidential 5 Information requires additional protections. 6 terms of such additional protection. 7 waives any right it otherwise would have to object to disclosing or producing any information or 8 item on any ground not addressed in this Stipulated Protective Order. Similarly, no party waives 9 any right to object on any ground to use in evidence of any of the material covered by this The parties shall meet and confer to agree upon the By stipulating to the entry of this Protective Order no party 10 Stipulated Protective Order. Nothing in this Stipulated Protective Order abridges the right of any 11 person to seek its modification by the Court in the future. Part Two: Use of Confidential Materials in Court 12 13 The following provisions govern the treatment of Confidential Information or Highly 14 Confidential Information used at trial or submitted as a basis for adjudication of matters other 15 than discovery motions or proceedings. These provisions are subject to Rules 2.550, 2.551, 2.580, 16 2.585,8.160, 17 Rules. 18 19. and 8.490 of the Califomia Rules of Court and must be construed in light of those A party that files with the Court, or seeks to use at trial, materials designated as 19 Confidential Information or Highly Confidential Information, and who seeks to have the record 20 containing such information sealed, shall submit to the Court a motion or an application to seal, 21 pursuant to California Rule of Court 2.551. 22 20. A party that files with the Court, or seeks to use at trial, materials designated as 23 Confidential Infonnation or Highly Contidential Information by anyone other than itself, and who 24 does not seek to have the record containing such information sealed, shall comply with either of 25 the following requirements: 26 (a) At least ten (10) business days prior to the filing or use of the Confidential 27 Information or Highly Confidential Information, the submitting party shall 28 give notice to all other parties, and to any non-party that designated the -12- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 materials as Confidential Information or Highly Confidential Information 2 pursuant to this Order, of the submitting party's intention to file or use the 3 Confidential Information or Highly Confidential Information, including 4 specific identification of the Confidential Information or Highly 5 Confidential Information. Any affected party or non-party may then file a 6 motion to seal, pursuant to Califol11ia Rule ofComt 2.551(b); or (b) 7 At the time of filing or desiring to use the Confidential Information or 8 Highly Confidential Information, the submitting party shall submit the 9 materials pursuant to the lodging-under-seal provision of California Rule of 10 Court 2.551 (d). Any affected party or non-party may then file a motion to II seal, pursuant to the California Rule of Court 2.55 I (b), within ten (10) 12 business days after such lodging. Documents lodged pursuant to California 13 Rule of Court 2.551(d) shall bear a legend stating that such materials shall 14 be unsealed upon expiration of ten (10) business days, absent the filing of a 15 motion to seal pursuant to Rule 2.551 (b) or Court order. 16 21. In connection with a request to have materials sealed pursuant to Paragraph 12 or 17 Paragraph 13, the requesting party's declaration pursuant to California Rule of Court 2.551(b)(l) 18 shall contain sufficient particularity with respect to the particular Confidential Information or 19 Highly Confidential Information and the basis for sealing to enable the Court to make the findings 20 required by California Rule of Court 2.550(d). 21 IT IS SO STIPULATED. 22 23 24 25 DATED: ,.2016 PERKINS COlE LLP By: _ Julie E. Schwartz 26 Attorneys for Defendant Facebook, Inc. 27 28 -13- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 DATED: ,2016 2 By: 3 Attorneys for Plaintiff SIX4THREE, LLC 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _ David Godkin 4 7 BIRNBAUM & GODKIN, LLP IT IS SO ORDERED. /~ lj DATED: _ /0 ___+_---,' 2016 I CERTIFICATION 2 I hereby certify my understanding that Confidential Information or Highly Confidential 3 Information is being provided to me pursuant to the terms and restrictions of the Stipulation and 4 Protective Order Regarding Confidential Information filed on 5 Six4Three, LLC v. Facebook, Inc., San Mateo County Superior COUlt Case No. CIV533328 6 ("Order"). I have been given a copy of that Order and read it. 7 ,.2016, in I agree to be bound by the Order and I understand and acknowledge that failure to so 8 comply could expose me to sanctions and punishment in the nature of contempt. I will not reveal 9 the Confidential Information or Highly Confidential Information to anyone, except as allowed by 10 the Order. I will maintain all such Confidential Information or Highly Confidential Information, II including copies, notes, or other transcriptions made therefrom, in a secure manner to prevent 12 unauthorized access to it. No later than thirty (30) days after the conclusion of this action, I will 13 return the Confidential Information or Highly Confidential Information, including copies, notes, 14 or other transcriptions made therefrom, to the counsel who provided me with the Confidential 15 Information or Highly Confidential Information. I hereby consent to the jurisdiction of the San 16 Mateo County Superior Court for the purpose of enforcing the Order, even if such enforcement 17 proceedings occur after 'termination of this action. I hereby appoint 18 Iocated at the address of 19 as my Califomia agent for service of process in 20 connection with this action or any proceedings related to enforcement of this Stipulated Protective 21 Order. 22 23 I declare under penalty of perjury that the foregoing is true and correct and that this certificate is executed this _ day of , 2016, at _ 24 25 By: _ 26 Address: _ 27 28 -15- Phone: ------------- STIPULA TED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Exhibit 2 From: Sent: David Godkin Tuesday, November 20, 2018 8:15 AM ComplexCivil; Laura Miller; Rebecca Huerta SERVICE-SIX4THREE;James Kruzer; Stuart Gross RE:Six4Three v. Facebook (CIV533328) To: Cc: Subject: Attachments: RE:Order for Documents Served on Six4Three's Principal, Ted Kramer, on November 19, 2018; 2018-11-20 Godkin letter to DCMS Committee.pdf Dear Ms. Huerta, Please find attached a letter that I sent to the DCMS Committee at 9:39 a.m. ESTthis morning, and an email I received in response a few minutes later. Sincerely, David Godkin From: ComplexCivil Sent: Tuesday, November 20, 2018 10:34 AM To: Laura Miller ; ComplexCivii ; Rebecca Huerta Cc: SERVICE-SIX4THREE; David Godkin ; Kruzer ; Stuart Gross Subject: RE: Six4Three v. Facebook (CIV533328) Importance: High The Court is in receipt and receipt this email and the attached letter proffered James of Mr. Godkin and is reviewing it. No documents shall be transmitted/released until further order of this Court. From: Laura Miller Sent: Monday, November 19, 2018 8:12 PM To: ComplexCivil ; Rebecca Huerta Cc: SERVICE-SIX4THREE; David Godkin ; Kruzer ; Stuart Gross Subject: Six4Three v. Facebook (CIV533328) James Ms. Huerta, I write with an urgent request for an ex parte hearing regarding Six4Three's imminent violation of the protective order. This is in addition but related to Facebook's request for an ex parte from earlier today. Six4Three's counsel sent us the attached letter this morning at 11:33 a.m., purporting to put Facebook on notice that Six4Three is planning to provide to the Digital, Culture, Media and Sport Committee (the "DCMS Committee") of the UK House of Parliament: 1 Unredacted copies of Six4Three's opposition to the anti-SLAPP (strategic lawsuits against public participation) motion, filed in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating to Six4Thre's opposition to the anti-SLAPP motion. This is precisely the information that the Court ordered sealed and/or struck in its Order of November 1, 2018. And as the DCMS Committee's letter is neither a subpoena nor a court order in related litigation, Six4Three has no basis to disclose Facebook's confidential information under the Stipulated Protective Order. We have informed Six4Three of Facebook's position and asked them not to disclose Facebook's confidential information, under both to the Stipulated Protective Order and this Court's Order of November 1, 2018. Six4Three has not provided a response, and may disclose Facebook's confidential information as early as 9 a.m. pacific tomorrow. Understanding the extraordinary nature of its request, Facebook asks the Court to schedule an ex parte teleconference on this matter as soon as possible. In the event that Six4Three agrees to delay any disclosure until the Court has had an opportunity to address this matter, Facebook requests that this matter proceed along the same briefing schedule as set forth in the Court's email of 3:25 p.m. today regarding Facebook's ex parte application for expedited briefing on a motion for sanctions and contempt related to other violations of the Protective Order. Best regards, Laura Miller I Attorney I Durie Tangri LLP I 415-362-6666 I Imiller@durietangrLcom 2 From: Sent: To: CHALLENDER, Chloe Tuesday, November 20,20186:55 AM Cheryl McDuffee; David Godkin COLLINS, Damian RE:Order for Documents Served on Six4Three's Principal, Ted Kramer, on November 19, 2018 Cc: Subject: Importance: High Dear Mr Godkin, On behalf of Damian Collins MP, thank you for your letter. We would like to seek specific clarification as to whether you consider that the California order has extra-territorial effect, given that Mr Kramer and the documents are both in the UK at present? Yours sincerely, Chloe Challender Chloe Challender Clerk I Digital, Culture, Media and Sport Committee I House of Commons Tel: 020 7219 6120 I E-mail: challenderc@parliament.uk www.parliament.uk/cms I London SW1A OAA I @CommonsCMS From: Cheryl McDuffee Sent: 20 November 2018 14:39 To: COLLINS, Damian Cc: CHALLENDER, Chloe ; Culture, Media & Sport Committee ; jlerner@durietangrLcom; SMehta@durietangrLcom; Catherine Kim ; SERVICE-SIX4THREE; Stuart Gross ; David Godkin ; James Kruzer ; Ian Atkinson-Young Subject: Order for Documents Served on Six4Three's Principal, Ted Kramer, on November 19, 2018 Dear Mr. Collins: Pursuant to David Godkin's request, please see the attached. Thank you, Cheryl A. McDuffee Secretary to David S. Godkin UK Parliament Disclaimer: this e-mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This e-mail has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this e-mail. This e-mail address is not secure, is not encrypted and should not be used for sensitive data. 1 e BIRNBAUM & GODKIN, LLP ATTORNEYS LAW AT David S. Godkin Direct Dial: (617) 307-6110 godkin@birnbaumgodkin.com November 20, 2018 BY EMAIL (damian.collins.mp@parliament.uk) Mr. Damian Collins MP Chair, Digital, Culture, Media and Sports Committee House of Commons London SWIA OAA Re: Order for Documents Served on Six4Three 's Principal, Ted Kramer, on November 19, 2018 Dear Mr. Collins: Following up on my letter sent yesterday regarding this matter, we have been informed by counsel for Defendants that they are seeking appropriate relief from the Superior Court of California, San Mateo County with respect to the Order served yesterday on Mr. Kramer. Insofar as my client is subject to and bound by Protective Order and other orders issued by the California Superior Court, my client is unable to comply with the Order unless and until the Superior Court permits, or unless Defendants consent. Insofar as the documents you seek include internal Facebook records, I suggest that you seek to obtain them directly from Facebook. Facebook's counsel in the California litigation is copied below. Friday, November 23, 2018 6:45 PM SALIMI, Saira; damian.collins.mp@parliament.uk; challenderc@parliament.uk Laura Miller; Sonal Mehta; Josh Lerner; Catherine Kim; SERVICE-SIX4THREE; Stuart Gross RE: Order of the DCMS Committee for the production of papers All, It came to my attention this afternoon that Mr. Kramer did in fact provide you with certain documents on Wednesday afternoon in response to the DCMS Committee Orders. Mr. Kramer was instructed not to do so because the documents were subject to a Protective Order entered by the San Mateo Superior Court, and because the San Mateo Superior Court had ordered Mr. Kramer to refrain from producing documents and that failure to comply would be in violation of the Superior Court’s order. I have advised Facebook’s counsel of these developments so that Facebook can take any action it deems appropriate. In addition, I urge to you refrain from reviewing the materials provided by Mr. Kramer, refrain from providing them to any third parties, and to return all such materials including any copies either to me or to Facebook’s counsel (copied herewith). Very truly yours, David Godkin From: SALIMI, Saira Sent: Friday, November 23, 2018 4:59 AM To: David Godkin Subject: Order of the DCMS Committee for the production of papers Dear Mr Godkin Please see the attached letter in reply to yours of Wednesday to Damian Collins MP. S A Salimi Speaker’s Counsel Office of Speaker’s Counsel 1st Floor, Richmond House, House of Commons, London, SW1A 0AA 020 7219 3776 (Office) 07801 890 933 (Mobile) 18001 020 7219 3776 (Text relay) www.parliament.uk @ukparliament @houseofcommons UK Parliament Disclaimer: this e-mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This e1 mail has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this email. This e-mail address is not secure, is not encrypted and should not be used for sensitive data. 2 EXHIBIT 10 Cheryl McDuffee From: Sent: To: Cc: Subject: COLLINS, Damian Friday, November 23, 2018 7:06 PM David Godkin; SALIMI, Saira; CHALLENDER, Chloe Laura Miller; Sonal N. Mehta - Durie Tangri (smehta@durietangri.com); Josh Lerner; Catherine Kim; SERVICE-SIX4THREE; Stuart Gross Re: Order of the DCMS Committee for the production of papers Dear David Thank you for your email. I can confirm that I have already viewed the contents of these documents, which were provided to the Committee by Six4Three following the Order we served on Mr Kramer whilst he was in London. They are clearly of significant interest to the Committee’s inquiry. The Committee will discuss next week how it intends to proceed. Kind regards Damian Collins Damian Collins MP for Folkestone and Hythe Chair of the Digital, Culture, Media and Sport Select Committee T 020 7219 7072 www.damiancollins.com From: David Godkin Date: Friday, 23 November 2018 at 23:45 To: "SALIMI, Saira" , Damian Collins , "CHALLENDER, Chloe" Cc: Laura Miller , "Sonal N. Mehta - Durie Tangri (smehta@durietangri.com)" , Josh Lerner , Catherine Kim , SERVICE-SIX4THREE , Stuart Gross Subject: RE: Order of the DCMS Committee for the production of papers All, It came to my attention this afternoon that Mr. Kramer did in fact provide you with certain documents on Wednesday afternoon in response to the DCMS Committee Orders. Mr. Kramer was instructed not to do so because the documents were subject to a Protective Order entered by the San Mateo Superior Court, and because the San Mateo Superior Court had ordered Mr. Kramer to refrain from producing documents and that failure to comply would be in violation of the Superior Court’s order. 1 I have advised Facebook’s counsel of these developments so that Facebook can take any action it deems appropriate. In addition, I urge to you refrain from reviewing the materials provided by Mr. Kramer, refrain from providing them to any third parties, and to return all such materials including any copies either to me or to Facebook’s counsel (copied herewith). Very truly yours, David Godkin From: SALIMI, Saira Sent: Friday, November 23, 2018 4:59 AM To: David Godkin Subject: Order of the DCMS Committee for the production of papers Dear Mr Godkin Please see the attached letter in reply to yours of Wednesday to Damian Collins MP. S A Salimi Speaker’s Counsel Office of Speaker’s Counsel 1st Floor, Richmond House, House of Commons, London, SW1A 0AA 020 7219 3776 (Office) 07801 890 933 (Mobile) 18001 020 7219 3776 (Text relay) www.parliament.uk @ukparliament @houseofcommons UK Parliament Disclaimer: this e-mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This email has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this email. This e-mail address is not secure, is not encrypted and should not be used for sensitive data. UK Parliament Disclaimer: this e-mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This email has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this email. This e-mail address is not secure, is not encrypted and should not be used for sensitive data. 2 EXHIBIT 11 Julie E. Schwartz, Bar No. 260624 J Schwartz@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350 FILED SAN MATEO COUNTY 0 .T 25 ZUlE NOM-PWN James R. McCullagh, admitted pro hac vice c9335)! IMcCullagh@perkinscoie.com PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 3C, Attorneys for Defendant F acebook, Inc. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 14 SIX4THREE, LLC, liability company, a Delaware limited Case No. CIV533328 STIPULATED [PROPOSED] PROTECTIVE ORDER 15 Plaintiff, 16 V. 17 FACEBOOK, INC., 18 a Delaware corporation and DOES 1-50, inclusive, 19 Defendant. 20 21 In order to protect confidential information obtained by the parties in connection with this 22 case, the pa1ties, by and through their respective undersigned counsel and subject to the approval 23 of the Count, hereby agree as follows: Part One: Use Of Confidential Material_s In Di_scoverv 24 25 1. Any party or non-party may designate as Confidential Information (by stamping 26 the relevant page or as otherwise set forth herein) any document or response to discovery which 27 that party or non-party considers in good faith to contain information involving trade secrets, or _ 28 ___ CIV533328 0RD Order 231729 l Illllllllllllllllllllllllll"Ill -. - ' -1- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 confidential business, financial, or personal information, including personal financial information about any individual or entity; information regarding any individual’s or entity’s banking relationship with any banking institution, including information regarding financial transactions or financial accounts, and any information regarding any individual or entity that is not otherwise available to the public, subject to protection under Rules 2.550, 2.551, 2.580, 2.585, 8.160, and 8.490 of the California Rules of Court or under other provisions of California law. Any party or non-party may designate as Highly Confidential Information (by stamping the relevant page or as \DOO\)O\ otherwise set forth herein) any document or response to discovery which that party or non-party considers in good faith to contain information involving highly sensitive trade secrets or 10 confidential business, financial, or personal information, the disclosure of which would result in 11 the disclosure 12 personnel, commercial, market, financial, or business information, or highly sensitive personal 13 information, subject to protection under Rules 2.550, 2.551, 2.580, 2585,8160, and 8.490 of the 14 California Rules of Court or under other provisions of California law. Where 15 response consists 16 information appears shall be so designated. 2. 17 of trade secrets or other highly sensitive research, development, production, of more than one page, the a document or first page and each page on which confidential A party or non-party may designate information disclosed during a deposition or in 13 response to written discovery as Confidential Information or Highly Confidential Information by 19 so 20 a separate 21 within thirty (30) days after receipt of said responses or of the deposition transcript for which the indicating in said responses or on the record at the deposition and requesting the preparation of transcript of such material. In addition, designation is proposed, that specific pages a party or non-party may designate in writing, of the transcript and/or specific responses be treated Confidential Information or Highly Confidential Information. Any other party may object to 23 as 24 such proposal, in writing or on the record. Upon such objection, the parties shall 25 procedures described in Paragraph 9 below. Until the thirty (30) day period for designation has 26 lapsed, the entirety 27 After the thirty (30) day period for designation has lapsed, any documents or information 2s designated pursuant to the procedure set forth in this paragraph shall be treated according to the of each deposition transcript shall be treated as follow the Confidential Information. -2- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 designation until the matter is resolved according to the procedures described in Paragraph 9 below, and counsel for all parties shall be responsible for marking all previously unmarked copies of the designated material in their possession or control with the specified designation. A party that makes original documents or materials available for inspection need not designate them as Confidential Information or Highly Confidential Information until after the inspecting party has indicated which materials it would like COpied and produced. During the inspection and before the \) designation and copying, all of the material made available for inspection shall be considered Highly Confidential Information. ‘ All Confidential Information or Highly Confidential Information produced or 3. exchanged in the course of this Case (not including information that is publicly available) used by the party or parties to whom the information is produced solely case. Confidential Information or shall be for the purpose of this Highly Confidential Information shall not be used for any commercial competitive, personal, or other purpose. Confidential Information or Highly Confidential Information must be stored and maintained by a receiving party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Stipulated Protective Order. The protections conferred by this Stipulated Protective Order cover not only the Confidential Information or Highly Confidential Information produced or exchanged in this case, but also (1) any information copied or extracted from or reflecting the Confidential Information or Highly Confidential Information; (2) all copies, excerpts, summaries, or compilations of Confidential Information or Highly Confidential Information; and (3) any testimony, conversations, or presentations by parties or their counsel that might reveal Confidential Information or Highly Confidential Information. However, the protections conferred by this Stipulated Protective Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a receiving party or becomes part of the public domain after its disclosure to a result involving a a receiving party as of publication not violation of this Stipulated Protective Order, including becoming part of the public record through trial or otherwise; and (b) any information known to the receiving party prior to -3- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 the disclosure or obtained by the receiving party after the disclosure from a source who obtained the information lawfully and under no obligation 4. of confidentiality to the designating party. Except with the prior written consent of the other parties, or upon prior order of this Court obtained upon notice to opposing counsel, Confidential Information shall not be disclosed to any person other than: (a) counsel for the respective parties to this litigation, including in-house counsel and co-counsel retained for this litigation; \DOO\]O\ of such counsel; (b) employees (C) individual parties or officers or employees of a party, to the extent deemed necessary by counsel for the prosecution or defense 10 of this litigation; (d) consultants or expert witnesses retained for the prosecution or defense of of the 12 this litigation, provided that each such person shall execute a copy 13 Certification annexed to this Order (which shall be retained by counsel to 14 the party so disclosing the Confidential Information and made available 15 for inspection by opposing counsel during the pendency or after the 16 termination of the action only upon good cause shown and upon order of 17 the Court) before being shown or given any Confidential Information, and 18 provided that 19 opposing party or one 20 opposing party, or designating non-party, before disclosing any 21 Confidential Information to that individual and shall give the opposing 22 party an opportunity to move for a protective order preventing or limiting 23 such disclosure; if the party chooses a consultant or expert employed by the of its competitors, the party shall notify the of the Confidential Information or a custodian; 24 (e) any authors or recipients 25 (f) the Court, court personnel, and court reporters; and 26 (g) witnesses (other than persons described in Paragraph 4(e)). A witness shall 27 sign the Certification before being shown a confidential document. 28 Confidential Information may be disclosed to a witness who will not sign .-4- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIVS33328 the Certification only in a deposition at which the party who designated the Confidential Information is represented or has been given notice that Confidential Information produced by the party may be used. At the request 4:. of any party, the portion of the deposition transcript involving the Confidential Information shall be designated “Confidential” pursuant to Paragraph 2 above. Witnesses shown Confidential Infonnation shall not be \lONL/I allowed to retain copies. 5. Except with the prior written consent of the other parties, or upon prior order of this Court obtained after notice to opposing counsel, Highly Confidential Information shall be 10 treated in the same manner as Confidential Information pursuant to Paragraph 4 above, except 11 that it shall not be disclosed to individual parties or directors, officers or employees of a party, or to witnesses (other than persons described in Paragraph 4(a) or 4(e)). 13 14 6. Any persons receiving Confidential Information or Highly Confidential Information shall not reveal or discuss such information to or with any person who is not entitled to receive such information, except as set forth herein. If a party or any of its representatives, l6 including counsel, inadvertently discloses any Confidential Information or Highly Confidential l7 Information to persons who are not authorized to use or possess such material, the party shall l8 provide immediate written notice of the disclosure to the party whose material was inadvertently 19 disclosed. 20 Information is being used or possessed by 21 regardless If a party has actual knowledge that Confidential Information or Highly Confidential of how the material immediate written notice a person not authorized to use or possess that material, was disclosed or obtained by such person, the party shall provide of the unauthorized use or possession to the party whose material is 23 being used or possessed. No party shall have an affirmative obligation to inform itself regarding 24 such possible use or possession. 25 7. In connection with discovery proceedings as to which a party submits Confidential 26 Information or Highly Confidential Information, all documents and chamber copies containing 27 Confidential Information or Highly Confidential Information which are submitted to the Court 28 shall be filed with the Court in sealed enveIOpes or other appropriate sealed containers. On the -5- STH’ULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 outside of the envelopes, a copy of the first page of the document shall be attached. If Confidential Information or Highly Confidential Information is included in the first page attached to the outside of the envelopes, it may be deleted from “CONFIDENTIAL” shall the outside copy. The word be stamped on the envelope and a statement substantially in the following form shall also be printed on the envelope: “This envelope is sealed pursuant to Order of the Court, contains Confidential Information and is not to be opened or the contents revealed, except by Order of the Court or agreement by the parties.” OKDOO\]O\ 8. A party may designate as Confidential Information or Highly Confidential Information documents or discovery materials produced by a non-party by providing written 11 notice to all parties of the relevant document numbers or other identification within thirty (30) 12 days after receiving such documents or discovery materials. Until the thirty (30) day period for 13 designation has lapsed, any documents or discovery materials produced by a non-party shall be 14 treated at Confidential Information. Any party or non-party may voluntarily disclose to others 15 without restriction any information designated by that party or nonparty 16 Information or Highly Confidential Information, although 17 status 18 Highly Confidential Information in compliance with this Order, that production shall be deemed 19 to have been made consistent with any confidentiality or privacy requirements mandated by local, 20 state or federal laws. 21 a as Confidential document may lose its confidential if it is made public. If a party produces materials designated Confidential Information or 9. If a party contends that any material is not entitled to confidential treatment, such 22 partymay at any time give written notice to the party or non-party who designated the material. 23 The party or non-party who designated the material shall have twenty (20) days from the receipt 24 of such written notice to apply to the Court for an order designating the material 25 The party or non-party seeking the order has the burden 26 entitled to protection. as confidential. of establishing that the document is 27 28 -6- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Notwithstanding any challenge to the designation of material 10. as Information or Highly Confidential Information, all documents shall be treated be subject to the provisions hereof unless and until one (a) Confidential as such and shall of the following occurs: the party or non-party who claims that the material is Confidential (11-w Information or Highly Confidential Information withdraws such designation in writing; or (b) OO\IO\ the party or non-party who claims that the material is Confidential Information or Highly Confidential Information fails to apply to the Court for an order designating the material confidential within the time period specified above after receipt of a written challenge to such designation; or (c) the Court rules the material is not Confidential Information or Highly Confidential Information. All provisions of this Order restricting the communication or use of Confidential 11. Information or Highly Confidential Information shall continue to be binding after the conclusion of this action, possession unless otherwise agreed or ordered. Upon conclusion of the litigation, a party in the of Confidential Information or Highly Confidential Information shall within sixty (60) days either (a) return such documents to counsel for the party or non-party who provided such information, or (b) destroy such documents. Whether the Confidential Information or Highly Confidential Information is retumed or destroyed, the receiving party must submit a written certification to the producing party (and, if not the same person or entity, to the designating party) by the 60 day deadline that (1) all the Confidential Information or Highly Confidential Information that was returned or destroyed, and (2) affirms that the receiving party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Confidential Information or Highly Confidential Information. Notwithstanding this provision, counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Confidential Information or Highly Confidential -7- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Information. Any such archival copies that contain or constitute Confidential Information or .Highly Confidential Information remain subject to this Stipulated Protective Order. The ALAN conclusion of the litigation shall be deemed to be the later of (l) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, \IONUI including the time limits for filing any motions or applications for extension of time pursuant to applicable law. After the conclusion of this action, this Court will retainjurisdiction to enforce the terms of this Order. 12. Nothing herein shall be deemed to waive any applicable privilege or work product protection, or to affect the ability of a party to seek relief for an inadvertent disclosure of material protected by privilege or work product protection. Any witness or other person, firm or entity from which discovery is sought may be informed of and may obtain the protection of this Order by written advice to the parties’ respective counsel or by oral advice at the time of any deposition or similar proceeding. 13. In the event that any Confidential Information or Highly Confidential Information is inadvertently produced without such designation, the party or non—party that inadvertently produced the information without designation shall give written notice of such inadvertent production promptly after the party or non-party discovers the inadvertent failure to designate (but no later than fourteen (14) calendar days after the party or non-party discovers the inadvertent failure to designate), together with a further copy of the subject information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” (the “Inadvertent Production Notice”). Upon receipt of such Inadvertent Production Notice, the party that received the information that was inadvertently produced without designation shall promptly destroy the inadvertently produced information and all copies thereof, or, at the expense of the producing party or non-party, return such together with all copies of such information to counsel for the producing party and shall retain only the newly-produced versions of that information that are designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” This provision intended to apply to any inadvertent production is not of any information or materials protected by -8- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 attorney-client or work product privileges, which inadvertent production is governed by Section 14 below. 14. In the event that any party or non-party inadvertently produces information that is privileged or otherwise protected from disclosure during the discovery process (“Inadvertent Production Material”), the following shall apply: (a) Such inadvertent production or disclosure shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of attorney-client privilege, attorney \OOO\I0'\ work product protection, or other applicable protection in this case or any other federal or state proceeding, provided that the producing party shall notify the receiving party in writing of such 10 protection or privilege promptly after the producing party discovers such materials have been 11 inadvertently produced. 12 (b) If a claim of inadvertent production is made, pursuant to this Stipulated of another party, that 13 Protective Order, with respect to discovery material then in the custody 14 party shall: (i) refrain from any further examination or disclosure of the claimed Inadvertent 15 Production Material; (ii) promptly make a good-faith effort to return the claimed Inadvertent 16 Production Material and all copies thereof (including summaries and excerpts) to counsel for the 17 producing party, or destroy all such claimed Inadvertent Production Material (including 18 summaries and excerpts) and certify in writing to that fact; and 19 claimed Inadvertent Production Material for any purpose until further order 20 authorizing such use. 21 (c) (iii) not disclose or use the of the Cou1t expressly A party may move the Court for an order compelling production of the Inadvertent Production Material on the ground that it is not, in fact, privileged or protected. The 23 motion shall be filed under seal and shall not assert as a ground for entering such an order the fact 24 or circumstance of the inadvertent production. The producing party retains the burden of 25 establishing the privileged or protected nature 26 information. While such a motion is pending, the Inadvertent Production Material at issue shall 27 be treated in accordance of any inadvertently disclosed or produced with Paragraph 14(b) above. 28 -9- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 If a party, in reviewing discovery material it has received from any other (d) party or any non-party, finds anything the reviewing party believes in good faith may be Inadvertent Production Material, the reviewing party shall: (i) refrain from any further examination or disclosure of the potentially Inadvertent Production Material; (ii) promptly identify the material in question to the producing party (by document number or other equally precise description); and (iii) give the producing party seven (7) days to respond as to whether the producing party will make a claim of inadvertent production. If the producing party makes such a claim, the provisions of Paragraphs 14(a)-(c) above shall apply. 15. The parties agree that should the production of source code become necessary, 10 they will need to amend or supplement the terms of this Order. To the extent production 11 source code becomes necessary in this case, the parties 12 amendments to this Order to cover any production 16. 14 compels disclosure 15 receiving party must: 17 (a) include a copy 18 will work expeditiously to propose of source code. If a party is served with a subpoena or a court order issued in other litigation that 13 16 of of any Confidential Information or Highly Confidential Information, the promptly notify in writing the designating party. Such notification shall of the subpoena or court order; (b) promptly notify in writing the paity who caused the subpoena or order to of the material covered by the subpoena or order 19 issue in the other litigation that some or all 20 subject to this Stipulated Protective Order. Such notification shall include a copy 21 Stipulated Protective Order; and 22 (c) is of this cooperate with respect to all reasonable procedures sought to be pursued by 23 the designating party whose Confidential Information or Highly Confidential Information may be 24 affected. If the designating party timely seeks a protective order, the party served with the subpoena 26 or court order shall not produce any Confidential Information or Highly Confidential Information 27 before a determination by the court from which the subpoena or order issued, unless the party has 28 obtained the designating party’s permission. The designating party shall bear the burden and -10- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 expense of seeking protection in that court of its c0nfidential material—and nothing in these provisions should be construed as authorizing or encouraging a receiving party in this action to disobey a lawful directive from another court. 17. .p. The following additional terms apply to non-party discovery material: The terms (a) of this Order are applicable to information produced by a non- party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” \DOONONU‘I Such information produced by non-parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting 10 a non—party from seeking additional protections. In the event that (b) a party is required, by a valid discovery request, to 11 produce a non-party’s confidential information in its possession, and the party is subject to an 12 agreement with the non-party not to produce the non-party’s confidential information, then the 13 party shall: i. 14 promptly notify in writing the requesting party and the non-party 15 that some or all of the information requested is subject to a confidentiality agreement with a non- 16 party; ii. 17 promptly provide the non-patty with a copy of the Stipulated 18 Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 19 description of the information requested; and iii. 20 21 22 make the information requested available for inspection by the non- party. (c) If the non-party fails to object or seek a protective order from this Court 23 within 28 days of receiving the notice and accompanying information, the receiving party may 24 produce the non-party’s confidential information responsive to the discovery request. If the non- party timely seeks a protective order, the receiving party shall not produce any information in its 26 possession or control that is subject to the confidentiality agreement with the non—party before a 27 determination by the Court. Absent a court order to the contrary, the non-party shall bear the 28 -11- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 burden and expense h) of seeking protection in this Court of its Confidential Information or Highly Confidential Information. 18. 90 Nothing in this Stipulated Protective Order shall be construed to preclude any ii party from asserting in good faith that certain Confidential Information or Highly Confidential Ln Information requires additional protections. The parties shall meet and confer to agree upon the 0\ terms \J waives any right it otherwise would have to object to disclosing or producing any information or of such additional protection. By stipulating to the entry of this Protective Order no party item on any ground not addressed in this Stipulated Protective Order. Similarly, no party waives any right to object on any ground to use in evidence of any of the material covered by this Stipulated Protective Order. Nothing in this Stipulated Protective Order abridges the right of any person to seek its modification by the Court in the future. Part Two: Use of Confidential Materials in Court The following provisions govern the treatment of Confidential Information or Highly Confidential Information used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings. These provisions are subject to Rules 2.550, 2.551, 2.580, 2.585, 8.160, and 8.490 of the Califomia Rules of Court and must be construed in light of those Rules. 19. A party that files with the Court, or seeks to use at trial, materials designated as Confidential Information or Highly Confidential Information, and who seeks to have the record containing such information sealed, shall submit to the Court a motion or an application to seal, pursuant to California Rule 20. of Court 2.551. A party that files with the Court, or seeks to use at trial, materials designated as Confidential Information or Highly Confidential Information by anyone other than itself, and who does not seek to have the record containing such information sealed, shall comply with either of the following requirements: (a) At least ten (10) business days prior to the filing or use of the Confidential Information or Highly Confidential Information, the submitting party shall give notice to all other parties, and to any non-party that designated the -12- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 materials as Confidential Information or Highly Confidential Information pursuant to this Order, of the submitting party’s intention to file or use the Confidential Information or Highly Confidential Information, including specific identification of the Confidential Information or Highly 4; Confidential Information. Any affected party or non-party may then file a motion to seal, pursuant to California Rule of Court 2.551(b); or \DOO\10\£11 (b) At the time of filing or desiring to use the Confidential Information or Highly Confidential Information, the submitting party shall submit the materials pursuant to the lodging-under-seal provision of California Rule of 10 Court 2.551(d). Any affected party or non-party may then file a motion to 11 seal, pursuant to the California Rule 12 business days after such lodging. Documents lodged pursuant to California 13 Rule 14 be unsealed upon expiration 15 motion to seal pursuant to Rule 2.551(b) or Court order. 16 21. of Court 2.551(b), within ten (10) of Court 2.551(d) shall bear a legend stating that such materials of ten (10) business days, absent the shall filing of a In connection with a request to have materials sealed pursuant to Paragraph 12 or of Court 2.55 1(b)( 1) 17 Paragraph 13, the requesting party’s declaration pursuant to California Rule 18 shall contain sufficient particularity with respect to the particular Confidential Information or 19 Highly Confidential Information and the basis for scaling to enable the Court to make the findings 20 required by California Rule 21 IT IS of Court 2.550(d). SO STIPULATED. 22 23 DATED: , 2016 PERKINS COIE LLP 24 25 By: Julie E. Schwartz 26 Attorneys for Defendant Facebook, Inc. 27 28 -13- STTPIILIXIHEI)[Id{()P()Sli[fl PIKCYFE(III\/EE()RI)EI{ CASE NO. CIV533328 DATED: , 2016 BIRNBAUM & GODKIN, LLP N By: David Godkin Attorneys for Plaintiff SIX4THREE, LLC WVONM-h-w IT IS SO ORDERED. DATED: ”[517 am C. ( 9 ; %)C: )" " !: ! . + ) : )9 %’ * )%" * %! %" ! "! )* !’"%)* + : " ! 9 ; %)C: )" .)<%!+ "%) %! > 9 ; %)C: )" % )"; % .)<%!+ "%) %! > 9 ; %)C: )" %)C: )" * %!%" ! "! )* !’"%)* + : " ! 9 ; %)C: )" !"<; + ; ): !*" ): )9 " " %)C: )" ! =; . : )9* ! <%!) +; ::! ** %< " : "" 9 )" <%! * !1 %<’!% " : "% )<%! + )" %<" * "’ ** ) " : !%" "1 !: ! !"C " * P ): ! ’ ) "; %<’ !D !; " "" E " : " * 5th : ; %< March ): %!! " ): " "" * <%! 9% )9 * "! 2018 " San Francisco, CA 94111 $;5 Stuart G. Gross 2::! **5The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94111 %) 5 4 (415) 671-4628 6 /24 0 A , 0B , 4 2 4.@ ,0 , .@ EXHIBIT 48 rm Sent time: 05.12201 8 04:40:34 AM To: 'Ihomas Scaramellino Cc: David Godlrin; James Kruzer, Ted Kramer Subject: Re: v. Facebook Applimtion and Amieus Brief Hi there. Yes= understood. Can we talk 8am your time? (I think that's 1pm my time not 2pm). The Guardian's counsel has said that we need to research and ?le our own independent brief that he puts in the range of 812-11000 costwise. I've told them how important it is and how the primary consideration here should be editoriall'jomnalistic ?rst and cost second but there will obviously be some discuss around this which won't happen until US business hours 50, depending on how that goes, we may need to delay reporting. But let's speak later if that's okay. Thanks- On 22 May 2018 at 01:29, Thomas Scaramellino wrote: The key thing with-is that if the article identi?es him as an expert witness or bases his con?rmation of the allegations on the fact that he has reviewed the evidence, then Facebook will cry foul at the hearing and distract the judge. We have no obligation right now to disclose a new expert witness to them but that won?t matter. They will fabricate an issue about it anyway that could be just enough of a sideshow to derail our eEo?s on July 2- They will claim (falsely) that we improperly revealed evidence and that very well could cause the judge to step back and delay his ruling on making the evidence public. On Mon, May 21. 2018 at 5:19 PM Thomas Scaramellino wrote: 0k very help?il. Why don?t you work on getting US Guardian con?rmation on ?ling and continue to plan to move forward and maybe we can all talk around 8am Eastern US time: which I believe is 2pm your time- Ifwe need to do earlier just but I think you can keep ball rollmg as we seem to be on same page. I tl?nk anonymous quotes from-would be ?ne so long as he isn?t identi?ed as an expert witness and you have someone like to go on record. An article entirely based on anonymous sources will be much more susceptible to counter attack so would very much prefer to avoid. Let me know how that sounds?ampmm?an rmn?) Vb. -5: -v?v us .75 "II-sly ?wc?va" Sony. and on ?nal point totally agree. I haven?t managed to get hold of-o discuss lawyers' call but. yes, I agee. Guardian must give full commitment- In UK that has been cleared agreed, they are just waiting for US legal feedback Thanks. All good points and I think generally we are on same page. Happy to work toward whatever you feel best approach. Re - understood, though would still l?ce to use anon quotes if possible. Re -that is what I am trying to do..he is up for it but needs to run it by his lawyer. Re Facebook pushbaclc most important thing is to simply address (even if brie?y) major lines of attack otherwise one opens oneself up for counter-attack. Brief quotes ?om counsel sounds good plan Plus= ideally, some context background (but doesn't have to be extensive.) Re time of call, I?m completely ?euble-whatever works best for you..but ideally to present news plan by latest midday UK time. And the earlier the better in terms of being able to use info to inform reporting. Thanks! - On Mon= 21 May 2018 at 23:46= Thomas Scaramellino wrote: Hi Thanks for the thorough update. We have brie?y conferred and think we can get comfortable with this but want to address a few things morning. What is the best time to speak then? I am on US. paci?c time now but don't mind waking up in the middle of the night to discuss. Just let us know a good time and we can circulate a dial-in Here are afew thoughts to consider. 0 We don't think it's a good idea to disclose -as an expert witness now. It gives FB's lawyers something to distract the court about by making up issues. which they have been very good at doing these past three years. I'm not sure if he could be an anonymous source verifying our allegations without disclosing him as an expert witness in the case. I'd like your thoughts on that- 0 Ted mentioned that?can con?rm some of our allegations in the complaint. Would he or others be Willing to do so on record? We are very much hoping that the ?rst reporting on this can verify at least a signi?cant portion of the allegations to mitigate the impact of FB's counter punch Since we don't want to reveal-we are wondering who might ?ll this gap; 0 As for FB's counter- punch. we do not want to open any doors that make it easier for them to malign Ted or his company We don't want this to be about Ted's company or app at this point, because it will distract from Facebook' 5 own conduct. which had nothing to do with Ted? 5 company. We also ant to anticipate FB using its in?uence over the media to dampen this story very quickly after you print; there will need to be follow-ups prepared that effectively accomplish this- Would like to hear your thoughts; 0 Ted and the company would remain off the record at this point. It is possible that the lead counsel on the case. David, would provide a brief statement saying we have no comment on the article but are con?dent the evidence will back up all of our allegations and are seeking to unseal the evidence in court on July 2; 0 We would hope to receive assurance from the Guardian that it will be ?ling an application-brief to support unsealing regardless of what FB may do as a result of your decision to publish now - the most important thing for us is to obtain support in front of the judge that these documents are crucial to this ongoing public debate. We won't do -1 -- -1..- -..L LL. - 117. .1- -- -1. anything [0 JCOPEICIIZC goal 50 ?701110 DCCQ your nun on (HIS. 0011 I want I0 any only to lose the war. Hope this is helpful context. Look forward to discussing tomorrow. Tom On Mon, May 21= 2018 at 238 PM, the dian.com> wrote: Hi all. Thanks so much for your time in various ways today. Great to meet Ted and hear more about the ?ght so So. I thought it might be helpful to lay out our thoughts at the moment. This is all up for debate depending on what you think The aim is to do this in accordance with what you want with the intention of trying to be as impactful as possible. To that end, we thought Zuck's evidence to the EU parliament tomorrow evening is an ideal hook for doing a set of ?rst reports - based on the publicly available docs. We could time the web publication for when Zuck is about to. or is in the process of. giving evidence. I've talked at length with my colleague. my editor, _and we thought the idea] would be: A main news story. This focuses on the central allegations laid out in the ?lings. What Facebook is trying to do to stop the underlying docs being made public. The Guardian's decision to ?le a briefin support in concert with other news orgs. And ideally - some supporting quotes ?om- understand these need to be anonymous but it would still be really useful to have these I think. - A secondary news story that focusses on the privacy abuses= mass data harvesting via Android etc. - And= ideally. a background piece that is a bit more discursive. This would have something about the legal ?ght so far. the other developers affected the coming Facebook PR o?emive etc. It would just be more colourful= easy-to-read This is all working on the assumption that you don't wish to go on the record as yet - though maybe there's a quote about the legal ?ght, or your con?dence in being vindicated etc that you might consider - but uses a bit of information on background So. there's a bit of an explanation that lays out the uphill battle it's been to get this far and what Facebook's blocking moves have been- But up to you. Ifthis does sound like a good plan, I'd ideally need to speak to you early UK time. ?We'd need to sell this into the Guardian news desk early so they are prepped and ready to run. As well as launching online tomorrow pm= we'd also try and get you on the ?ont page for ?bdnesday am, and if so. that needs to be teed up as early as possible in advance. I think the tinting is good, because unless there's another big news event (always possible) Zuck is probably the front page news anyway. I'd also be interested in learning more about the ins and outs ofthe ?ling as I think that may make an interesting focus in terms of Facebook's blocking moves. Anyway. I'll leave this with you but if tomorrow UK morning (I can do as early as necessary) works for you that would be ideal But obviously I understand you all have busy schedules and in which case. we can delay until later. This email and all attachments are con?dential and may also be privileged. lfyou are not the named recipient. please notify the sender and delete the e-mail and all attachments immediately. Do not disclose the contents to another person. You may not use the information for any purpose, or store. or copy. it in any way. Guardian News 8. Media Limited is not liable for any computer viruses or other material transmitted with or as part of this e-mail. You should employ virus checking software. Guardian News Media Limited is a member of Guardian Media Group plc. Registered Of?ce: PO Box 68164. Kings Place, York Way. London. N1P ZAP Registered in England Number 908396 This e-mail and all attachments are con?dential and may also be privileged. If you are not the named recipient. please notify the sender and delete the e-mail and all attachments immediately. Do not disclose the contents to another person. You may not use the information for any purpose. or store. or copy, it in any way. Guardian News 8. Media Limited is not liable for any computer viruses or other material transmitted with or as part of this e?mail. You should employ virus checking software. Guardian News 8. Media Limited is a member of Guardian Media Group plc. Registered Of?ce: PO Box 68164. Kings Place. York Way, London. N1P ZAP. Registered in England Number 908396 This e-mail and all attachments are con?dential and may also be privileged. If you are not the named recipient. please notify the sender and delete the e-mail and all attachments immediately. Do not disclose the contents to another person. You may not use the information for any purpose, or store. or copy. it in any way. Guardian News 8. Media Limited is not liable for any computer viruses or other material transmitted with or as part of this e?mail. You should employ virus checking software. Guardian News 8. Media Limited is a member of Guardian Media Group plc. Registered Of?ce: PO Box 68164. Kings Place, 90 York Way, London. N1P 2AP. Registered in England Number 908396 36006401 EXHIBIT 49 GROSS a: KLEIN LLP THE EMBARCADERO PIER 9. SUITE 100 SAN FRANCISCO. CA 94111 AwwmtoStuart G. Gross (#251019) . sgross@grosskleinlaw.com Benjamin H. Klein (#313922) bklein@grosskleinlaw.com GROSS KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94111 (415) 671-4628 Of counsel: David S. Godkin (admitted pro hac vice) James E. Kruzer (admitted pro hac vice) BIRNBAUM GODKIN, LLP 280 Summer Street Boston, MA 02210 (617) 307-6100 - godkin@bimbaumgodkin.com kruzer@birnbaumgodkin.com Attorneys for Plaintiff, SIX4THREE, LLC, a Delaware limited liability company SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO SIX4THREE, LLC, a Delaware limited Case No. CIV 533328 liability company, Assigned for all purposes to Hon. V. Plaintiff, Raymond Swope, Dept. 23 v. DECLARATION OF THEODORE KRAMER AUTHENTICATING ACEBOOK, IN C., et al., EXHIBITS T0 DECLARATION OF THEODORE KRAMER IN SUPPORT Defendants. OF BRIEF IN RESPONSE TO NOVEMBER 20, 2018 - ORDER Department: 23 Judge: Honorable V. Raymond Swope Filing Date: April 10, 2015 Trial Date: April 25, 2019 DECLARATION OF THEODORE KRAMER AUTHENTICATING EXHIBITS IN SUPPORT OF PLAINTIFF BRIEF IN RESPONSE TO NOVEMBER 20, 2018 Case No. CIV 533328 GROSS KLEIN LLP THE EMBARCADERO PIER 9. SUITE 100 SAN FRANCISCO.CA 9411Theodore Kramer, declare: 1. I am the founder and Managing Director of Six4Three, LLC I make this Declaration from personal knowledge, and if called to testify, I could and would competently testify thereto. 2. On November 30, 2018, in response to the Court?s Order dated November 30, 2018 Denying Facebook?s Ex Parte Application, page 4, line 25 through page 5, line 4, I downloaded from my Gmail account full copies of the emails and attachments to my Declaration ?led in support of Plaintiff?s Brief in Response to the Court?s November 20, 2018 Order. I have attached true, correct and authentic copies of such documents hereto as Exhibit A. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed November 30, 2018 at San Francisco, California. Theodore Kramer DECLARATION OF THEODORE KRAMER IN SUPPORT OF BRIEF IN RESPONSE TO NOVEMBER 20, 2018 Case No. CIV 533328 1 EXHIBIT A Gmail - Extensive evidence relevant to Facebook's data and privacy abuses E! Gmail 11/30/18, 7:48 PM Theodore Kramer Extensive evidence relevant to Facebook's data and privacy abuses Theodore Kramer To: damian.collins.mp@parliament.uk Mon, Oct 1, 2018 at 11:47 AM Damian, I've been following your leadership in the House of Commons Culture, Media and Sport Select Committee over the past year and have been extremely impressed with your passion for finding the truth with regards to Brexit, Cambridge Analytica, and Facebook's involvement in all of the above. My company has been in litigation with Facebook and Mark Zuckerberg for three years and has obtained extensive discovery of communications between Zuckerberg and numerous other Facebook executives and employees regarding Facebook's treatment of user data and third party developers from 2007 to 2015. Just recently, Carole Cadwalladr of The Guardian published two articles related to our case and what we have uncovered during discovery since we filed suit. https://www.theguardian.com/technology/2018/may/24/mark-zuckerberg-set-up-fraudulent-scheme-weaponise-datafacebook-court-case-alleges https://www.theguardian.com/technology/2018/may/24/facebook-accused-of-conducting-mass-surveillance-throughits-apps?CMP=share_btn_tw I believe the information we have uncovered demonstrates clearly that Facebook violated the privacy of US citizens and its prior settlement with the FTC. I have attempted to summarize the public information from our case below. I have also attached a summary of public information regarding the conduct and our most recent opposition filed in California State Superior Court. Finally, I have attached a document that should assist you and your committee as you approach Facebook for documentation and evidence related to the company's handling of user data since January 1st, 2012. Carole recommended we send it to you. I would really like to take the opportunity to talk to you about our case. Would you and your staff be open to a phone call? Regards, Ted Kramer -We believe the evidence obtained in our ongoing litigation demonstrates that Zuckerberg architected a fraudulent scheme in mid-2012 in discussions with Chris Cox, Javier Olivan, Sheryl Sandberg, Dan Rose and Sam Lessin, among others. The purpose of the scheme was to weaponize friend data in order to unfairly boost Facebook’s transition from desktop to mobile advertising and to wipe out competition in messaging, contact, photo, video and other consumer software markets. The scheme entailed Facebook entirely ignoring its policies and privacy settings on user data (particularly friend data) for organizations that provided revenues or other financial benefit to Facebook in order to boost its user growth and mobile ad sales. We allege the scheme was communicated to senior Platform employees in October and November 2012, at which time they had planned a public announcement to remove friend data, but Zuckerberg directed them not to do so. Instead, from 2012 on, Zuckerberg used friend data maliciously as a https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…sg-a%3Ar8766495409018518160&simpl=msg-a%3Ar8766495409018518160 SIX4THREE 000015920 Page 1 of 2 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:48 PM stick to force companies to buy mobile ads to save Facebook's advertising business, which was not prepared for the transition from desktop computers to mobile phones. In other words, Zuckerberg tied the unrelated data and advertising products together in a malicious way. For companies who paid up in mobile ads, Zuckerberg didn't care what they did with the friend data. For companies who wouldn't pay for mobile ads or that Zuckerberg considered too competitive, Zuckerberg shut off their access to friend data even though Facebook made it available to all developers at the time. We have uncovered numerous instances of Facebook recognizing a policy violation related to user data and deciding not to enforce it in order to avoid interruption of purchases in its nascent mobile app install ads product. Further, throughout this period from 2012 to 2015, Facebook never provided third party developers with any privacy settings when it passed user data. In other words, if Facebook knew that a user had set a photo for only "friends" to see, it refused to pass that information along to the third party developer notwithstanding that employees reported this "bug" for years. Thus, it was not even possible for Professor Kogan and Cambridge Analytica to determine how one of the quiz app's users wanted their data treated. That doesn't negate the wrongful conduct of Cambridge Analytica and others, but it does demonstrate that Facebook was the initially culpable actor here, not a third party. Facebook also deliberately took no further measures from 2012 to 2014 in order to make privacy controls around friend data more transparent and ubiquitous. This was not an accident. This was done deliberately to enable Zuckerberg to weaponize the friend data to boost partners who paid Facebook extraordinary sums in mobile advertisements that saved Facebook's advertising business in late 2012 and 2013. Facebook would not have the business it has today if Zuckerberg had not deliberately created the environment that Cambridge Analytica exploited. In sum, the Cambridge Analytica abuse was only possible because Zuckerberg became very desperate in mid/late 2012 to save his advertising business, which was collapsing due to the fact that people began using smartphones instead of computers. Zuckerberg's scheme to arbitrarily enforce policies and friend data access based on mobile ad payments was concealed from most Facebook employees until very late 2013. Zuckerberg had begun working on a false privacy narrative for the scheme as early as 2012 and began testing it with employees in early 2013. The scheme was announced as Graph API 2.0 on April 30, 2014 with an entirely false privacy narrative (that the executives who implemented it self-consciously recognized as false) and which hid Facebook’s decision to put a wall around its Platform behind the announcement of an unrelated project revamping Facebook’s Login product. Interestingly, Facebook's original announcement removing friend data in April 2014 noted only that "several rarely used endpoints" were being removed. Internal emails show that these endpoints, including friend data, were the most widely used in Platform, contradicting Facebook's public claims. The fact that these endpoints were widely used appears obvious now in light of the fact that Cambridge Analytica used them to access data for 50 million consumers. Thus, Facebook's 2015 statement that the endpoints were "rarely used" is at best intentionally misleading. Finally, we have alleged that Facebook engaged in almost a dozen projects after the FTC Order in which Facebook misled users regarding how their data was treated, ranging from commingling Onavo data with Facebook data prior to any update to the Onavo terms of service to the decision to track the texts and call logs of Android users without sign off from the privacy and legal departments at Facebook (and without updating the Facebook Android permissions) to deliberately ignoring privacy settings for a popular Facebook feature to Zuckerberg's repeated requests that when a user sets the privacy on a piece of data to "only me" that Facebook must make that setting "unsticky" to encourage users to share their data more broadly than they feel comfortable doing. 3 attachments Summary of Complaint.pdf 234K FILED Corrected Opp to Individual Defendants Anti-SLAPP.pdf 2423K Requests for Production_six4three.pdf 94K https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…sg-a%3Ar8766495409018518160&simpl=msg-a%3Ar8766495409018518160 SIX4THREE 000015921 Page 2 of 2 Summary of Allegations in Six4Three’s Fifth Amended Complaint Zuckerberg Decided In 2012 to Weaponize Friend Data To Transition Facebook’s Failing PC Advertising Business to Smartphones By 2012, people across the world were accessing the Internet from phones more frequently than from PCs. But virtually all of Facebook’s revenues in the first half of 2012 were from desktop ads on PCs. In the second and third quarter of 2012, Facebook’s revenues, profits and stock price plummeted because Facebook had not anticipated that this transition from computers to phones would happen so quickly. Par. 14, 209, 295. Because Facebook’s business was falling off a cliff right while it was going through its IPO, Zuckerberg needed to do something drastic in order to transition Facebook’s advertising business to smartphones as quickly as possible. Par. 14, 85, 295. In mid-2012, he held conversations with Sandberg, Cox, Olivan, Lessin, Bosworth, Rose and others in which they discussed ways to leverage Facebook Platform, and in particular friend data, to solve this problem. Par. 26, 85. They presented various options around Facebook’s management of friend data to the Facebook Board of Directors in the summer of 2012. Par. 85. By late 2012, Zuckerberg communicated his decision to senior Facebook executives to implement one of the options, a new Facebook Platform policy called “reciprocity”. Par. 85. Zuckerberg’s reciprocity policy entailed privatizing a wide range of developer APIs, including those that transmitted friend data, and ignoring privacy and policy violations for companies who accessed this data so long as they purchased Facebook’s new mobile advertising product. Par. 209, 211, 229, 231, 232. In late 2012, Zuckerberg brought Facebook Platform’s top executive, Vernal, into these discussions in order to oversee and implement the plan to start trading friend data access for unrelated purchases in these new mobile ads. Par. 85. Vernal planned a public announcement of the API restrictions, including an announcement that friend data was being publicly removed, but Zuckerberg prohibited the announcement. Par. 85. Had Zuckerberg not prohibited this announcement, Professor Kogan and Cambridge Analytica would never have been able to access the data of 50 million consumers in the first place. Instead of permitting an announcement of his decision to shut down access to friend data, Zuckerberg instructed his management team to contact other companies with the following message: they would need to start buying Facebook’s new mobile ads or they will have their access to friend data shut off. Par. 238, 295. When companies responded that the data was publicly available, so how could Facebook shut off their access, Facebook decided to publicly announce an extremely vague version of its internal reciprocity policy in January 2013 in order to provide a policy excuse to shut down access to these companies who were not willing to pay. Par. 85. The reciprocity policy included removal of access to the newsfeed APIs, friends list APIs, friends permissions APIs, user ID APIs and other Graph APIs, but nowhere did Facebook’s public announcement state this. Par. 85, 209. Rather, Zuckerberg deliberately designed the public version of the reciprocity policy to be as vague as possible in order for Zuckerberg to contrive an excuse to shut down any company that would not make extravagant payments to help transition Facebook’s advertising business to smartphones. Par. 85. Companies that would not make these payments would go on a blacklist that Zuckerberg personally managed without having to define what he meant by a competitive application or one that replicates Facebook’s “core functionality.” Par. 85, 211-213. Instead, Facebook kept expanding BACKGROUND NON-ATTRIBUTION SIX4THREE 000015922 its definition of core functionality without providing any public guidance as to what types of companies it considered to be competitors. Par. 16-18, 24-26, 88, 90, 212. The blacklist started to grow as Facebook’s ambitions began expanding far beyond its original mission of just being a social network. Par. 212. By 2012, the blacklist included major messaging applications, professional services applications and contact management applications. Par. 89, 212. By 2013, the blacklist included major gifting and payment apps, sharing economy apps, utility apps, file sharing and storage apps, birthday reminder apps, photo and video apps, calendar apps, lifestyle apps and health and fitness apps. Par. 212. The blacklist had nothing to do with whether the companies were violating user trust or privacy. It was based exclusively on whether the company posed a competitive threat to Facebook and whether it was purchasing these new mobile ads. From late 2012 on, Zuckerberg directed the other defendants and their subordinates to approach blacklisted companies or companies that might be blacklisted in the future with a Hobson’s choice: (1) start buying Facebook’s mobile ads at a certain minimum spend per year (the amount of the spend has not been made public) or start feeding us all of your user data; or (2) Facebook will shut off access to the APIs necessary for the company’s app to function. Par. 85. Either choice benefited Facebook. If the company chose option (1), Facebook’s mobile advertising business grew to replace its failing desktop business. If the company chose option (2), another competitor was eliminated to make room for Facebook’s ambitions to own consumer software experiences well outside the domain of a social network (e.g. messaging apps, photo and video apps, gifting and payment apps, sharing economy apps, utility apps, file sharing and storage apps, birthday reminder apps, calendar apps, lifestyle apps and health and fitness apps). Par. 209, 212. Further, if a company refused to share all its user data back to Facebook, Facebook had built scraping tools to automate pulling the data from the company’s website directly without the company’s permission. Par. 209. Under the reciprocity policy, Facebook required that a company provide to Facebook anything that Facebook in its own discretion deemed valuable. This primarily meant unrelated mobile advertising purchases, but in a number of cases also meant feeding data back to Facebook, rights to certain intellectual property owned by the developer, or selling the developer’s company to Facebook at a price lower than its market value. Par. 209. Similar to its use of the reciprocity policy, Facebook also maintained a “size policy.” The formal, public policy simply stated that any company making a large volume of API calls needed to enter into a separate agreement with Facebook, which is standard in the software industry. The internal version of the policy was quite different: Facebook employees would explicitly encourage smaller companies to use Facebook Platform and its APIs but once the company acquired a large number of users, Facebook would then – and only then – shut down the company’s access to its APIs. Par. 213. If Facebook found the company to be a direct competitive threat, it would not enter into any agreement, and the company’s business would fall off a cliff. If Facebook determined the company was not a threat, it would require an agreement to purchase mobile ads at an extremely high minimum annual amount in order for the company to access APIs otherwise publicly available. If the company agreed to spend the money on mobile ads, Facebook would look the other way on policy and privacy violations. In other words, Facebook lied to these companies to make them dependent on Facebook with full knowledge that Facebook could crush them once they achieved a measure of success. Further, the complaint provides a host of examples where for more than two years Zuckerberg and others induce BACKGROUND NON-ATTRIBUTION SIX4THREE 000015923 developers to rely on the very APIs they had already decided to shut down. Par. 215-221. Any company relying from 2012 to April 2014 on any of the APIs shut down with the Graph API 2.0 announcement was operating on borrowed time. Facebook knew all of these companies’ investments would be irreparably damaged and yet continued to induce their investments to unfairly prop up its new mobile advertising business. Further, Facebook became so concerned with competitive threats, particularly in the messaging app market, that it repeatedly violated user privacy and the terms of its FTC 2012 Consent Order to access non-public information to better track competitors. Par. 79-84, 227, 234. For instance, Olivan and Zuckerberg purchased Onavo, a virtual private network app with 30 million users, in October 2013. Par. 227. Olivan then commingled data for those 30 million Onavo users with Facebook data in order to determine how popular different messaging apps were in key markets compared to Facebook’s own apps. Par. 227. Olivan did this prior to any change in the Onavo user terms of service, so Onavo users had no idea their data was being used for this purpose. Par. 227. Even after changing the Onavo terms of service, Facebook never disclosed that Onavo user data would be commingled with Facebook data in order to obtain nonpublic information regarding the downloads and engagement of competitive apps. Par. 227. Facebook’s decision to purchase WhatsApp and the staggering price it was willing to pay was the direct result of this improper use of Onavo data, which caused Facebook to believe that WhatsApp’s rapid growth posed an existential threat to Facebook’s business. Par. 227. Olivan also used this non-public data about competitive applications in order to determine which companies should be blacklisted from Facebook Platform. Par. 227, 234. By the summer and fall of 2013, Zuckerberg’s experiment trading access to friend data for mobile ad payments had proven successful, so he decided to expand beyond the initial companies it had identified. Par. 88. At Zuckerberg’s direction, certain other Facebook executives oversaw an audit of 40,000 or more applications that had access to friend data to categorize them based on the level of competitive threat they posed to Facebook and based on which companies Facebook would approach to extract mobile ad payments upon threat of being shut down. Par. 24-28, 88. As the blacklist continued to expand and reports in the media became more common due to disgruntled developers reacting to Facebook’s arbitrary and punitive decisions, Zuckerberg realized he could no longer continue down this path without a public event and narrative. Zuckerberg Decided In 2013 to Use the Privacy Backlash in the Media as Justification to Wipe Out 40,000 Competitive or Potentially Competitive Applications Given the untenable situation Zuckerberg’s reciprocity policy created where Facebook was treating data it had made publicly available as if it had been privatized, Facebook needed to clean up this mess once it’s mobile ads business was on a strong footing. In 2013, Zuckerberg decided to hide the scheme to trade friend data for mobile ad purchases behind a public announcement of an unrelated project revamping Facebook’s Login tool to better promote user privacy. The top Facebook Platform executives, Vernal and Purdy, attempted aggressively during this time to make Ilya Sukhar, the founder and CEO of Parse, the front man for this fraudulent narrative given his stellar reputation in the developer community. Par. 85. Sukhar initially resisted because he knew Facebook’s scheme was unethical and malicious. Par. 85. However, by late 2013, Sukhar gave in to Zuckerberg, Vernal and Purdy and began overseeing BACKGROUND NON-ATTRIBUTION SIX4THREE 000015924 the development and dissemination of a fraudulent narrative to cover up the scheme. Par. 85, 223. This narrative took full advantage of the media’s recognition of the substantial privacy issues that Facebook had created with its management of Facebook Platform and successfully steered the narrative towards blaming bad developers and positioning Facebook’s role as simply being too slow to respond. In early 2014, Zuckerberg, Sukhar and others agreed on a plan to announce publicly in April 2014 that friend data and other developer APIs were being shut down completely. This plan was designed to take advantage of the privacy issues in the media to shut down 40,000 potentially competitive applications after Facebook had closely monitored and placed bets on the companies it thought would be winners in its two most important consumer markets beyond social networking: messaging and photo/video sharing (Facebook bet on Instagram in photos and WhatsApp in messaging, hence those purchases in 2012 and 2014, respectively). Par. 162, 227. By wiping out access to data to all other apps in messaging and photo/video sharing, Facebook positioned Instagram, WhatsApp and its own Facebook Messenger perfectly to experience rapid growth, which in fact resulted immediately after these anti-competitive restrictions were implemented. The justification for wiping out 40,000 software applications centered on two issues: (1) user trust and privacy; and (2) the fact that the APIs were “rarely used”. Par. 10, 137, 139, 223, 224. The “rarely used” argument is patently false as the APIs being removed were the most popular and widely used APIs on Platform. Par. 223, 224. The first justification around user trust stems from research Facebook had conducted regarding a revamp of its Login product where users can login to a developer’s app using their Facebook account information. Par. 223. Facebook had obtained data indicating that a portion of users wanted to be able to approve specific permissions they granted to developers, and so Facebook decided to cloak these entirely unrelated API privatizations behind the revamp of this Login product in order to take advantage of the “user trust” narrative. Par. 224. In fact, that Facebook was shutting down friend data received only a single line at the end of the April 30, 2014 announcement: “In addition to the above, we are removing several rarely used API endpoints; visit our changelog for details.” This was the only description for the most significant change to Facebook Platform in its 8-year existence. One would expect that if Facebook’s motivations were around user trust and privacy that it would have put this announcement front-and-center. Further, one would have expected that in response to the 2012 FTC Order stating that Facebook had misled users that their privacy settings did not apply to apps downloaded by their friends, that Facebook would have taken some very simple measures to ensure that privacy violations like Cambridge Analytica could never happen. These include: (1) incorporating privacy settings for apps others use directly into the main privacy settings page and making clear to users that those privacy settings apply to “friend data” as well; (2) passing along privacy settings on data Facebook sends to developers via Facebook Platform APIs, which Facebook never did notwithstanding employees reported this glaring privacy issue for years, even prior to the FTC Order; and (3) making the default setting for a third party’s ability to access user data turned to “off” rather than “on”. This way a user would have to go into their privacy settings and proactively choose to allow third parties to access their data for apps their friends download. These are simple, obvious technical measures to respect user privacy that Facebook should have taken well before the FTC complaint in 2011 and certainly should have taken immediately after the FTC Order in 2012. Facebook never BACKGROUND NON-ATTRIBUTION SIX4THREE 000015925 implemented any of these simple measures precisely because it would limit the amount of valuable data it could funnel to other companies, which would have dramatically reduced Facebook’s leverage in convincing them to buy unrelated mobile ads or to otherwise reciprocate financially. Instead, Facebook deployed a public relations team specifically on this Graph API 2.0 announcement in April 2014 to feed reporters false information and to shift the focus of the announcement to its new Login product in the hope that the API restrictions would receive less attention; in fact, Facebook even drafted reporters’ stories themselves in certain cases. Par. 129. The Facebook public relations machine worked, and until now Facebook has not been held to account for its own gross abuse of its Platform. The publicly announced reasons for Graph API 2.0 played absolutely no role in the internal discussions where the API restrictions were decided upon and implemented. Par. 10. The sole and exclusive criterion in those discussions was the ability to funnel user data to companies willing to buy unrelated mobile ads and the competitive nature of the company relative to Facebook’s future products (even products Facebook had not begun building). Par. 4, 88, 91, 123. Facebook entered into many whitelist agreements where it traded this friend data for unrelated mobile ad purchases. Par. 223. Facebook managed a list of these companies, and in particular those who were friends with Zuckerberg or Sandberg, to enable them to have this special access to APIs (including over a dozen APIs that transmitted friend data) that Facebook claimed were removed to all companies, but instead were merely privatized in the service of Facebook’s mobile ads business. Par. 223. “Baiting and Switching” Third Parties to Build Facebook’s Ecosystem Is Happening Again With Facebook Messenger Platform A key part of Zuckerberg’s playbook is using platform economics to entice third parties to help build his business and then take deceptive actions so Facebook can unjustly reap most of that benefit itself. Par. 141-146. Another key aspect of Zuckerberg’s playbook is to rely on “user trust, control or privacy” as cover stories for virtually all of Facebook’s conduct. However, the conduct of Facebook’s top executives from 2012 to 2015, in particular Zuckerberg and Olivan, undermines entirely any justification that Facebook made the Graph API 2.0 changes out of respect for user control or privacy. This is not only because the narrative tying the Login changes to the “rarely used” APIs Facebook restricted doesn’t hold up to logical scrutiny, but also because numerous other actions that Facebook purported to be taking at this time out of respect for users seem to have nefarious motives. Par. 226-234. For instance, in 2012 and 2013, Olivan oversaw a project to track the content and metadata of phone calls and texts on Android phones. Par. 228. Facebook disclosed publicly that it was reading limited information from texts in order to authenticate users more easily, but Olivan collected more information than was required to accomplish this purpose and used this information to enhance certain core features of Facebook that gave it an unfair competitive advantage relative to other applications. Par. 228. Facebook did not accurately state the type of information it was accessing, the timeframe over which it accessed it, and the ways it used the information. Par. 228. Facebook was also collecting this information from non-Facebook users who texted with Facebook users. These people obviously never consented to Facebook reading their text messages. Par. 228. BACKGROUND NON-ATTRIBUTION SIX4THREE 000015926 Further, for a “certain prominent feature” of the Facebook website, Facebook deliberately and by design ignored users’ privacy settings without disclosing this to its users. Par. 229. Facebook also turned on the Bluetooth setting on users’ phones without disclosing accurately the ways in which it would use the Bluetooth location data. Par. 230. Facebook also caused a certain user privacy setting to lapse after a certain period of time without notifying users of the lapse. Par. 231. Facebook also deliberately and by design failed to pass age and privacy settings through its developer APIs, making it extremely difficult for developers to respect age and user privacy requirements. Par. 232. Further, it appears that in 2015 Facebook expanded its program to access and monitor the microphone on Android phones without securing the explicit consent of its users and while only providing partial disclosures as to what information was being collected and how it was being used. Par. 233. Finally, it appears that Facebook has not fully disclosed the ways in which it accesses and analyzes photos taken on iPhones. If a user has any Facebook app installed on their iPhone, Facebook preprocesses and runs machine learning on these photos without fully disclosing what information it gleans from the photos and how it uses that information. Par. 233. BACKGROUND NON-ATTRIBUTION SIX4THREE 000015927 1 2 3 4 5 6 7 8 9 10 11 12 Stuart G. Gross (#251019) Benjamin H. Klein (#313922) GROSS & KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94111 (415) 671-4628 sgross@grosskleinlaw.com bklein@grosskleinlaw.com IEledroni~a1lly Of counsel: FIIILED b), Supel'l,Qr C0 Extensive evidence relevant to Facebook's data and privacy abuses COLLINS, Damian To: Theodore Kramer Cc: Damian Collins Sat, Nov 3, 2018 at 12:28 PM Dear Ted Thank you so much for getting in touch about this. I have spoke with Carole about this and would really like to do anything I can to help on this very important issue. Carole has suggested I write to you with the following request [see below] – can I just check with you directly that this is correct I have also copied in here my private gmail and my UK mobile phone number is +447775947158 We are planning an international meeting of the select committee on 27th November and this could provide the perfect opportunity to explore the issues that you have been involved with Best wishes Damian I write concerning documents in your possession related to the matter of Six4Three, LLC v. Facebook, Inc., filed on April 10, 2015 in California Superior Court, County of San Mateo (CIV533328). The following categories of documents have been deemed highly relevant to ongoing Committee investigations: Unredacted copy of Plaintiff Six4Three's Corrected Memorandum of Points and Authorities in Opposition to Defendants' Special Motions to Strike (Anti-SLAPP) filed on May 18, 2018; https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3A1616142203480613856&dsqt=1&simpl=msg-f%3A1616142203480613856 SIX4THREE 000015961 Page 1 of 4 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:46 PM Unredacted copy of the Declaration of David S. Godkin in Support of Six4Three's Anti-SLAPP Opposition ("Godkin Anti-SLAPP Declaration") filed concurrently therewith on May 18, 2018; Exhibits 1-212 to the Godkin Anti-SLAPP Declaration filed on May 18, 2018; All documents containing summaries or analyses of any of the exhibits to the Godkin AntiSLAPP Declaration filed on May 18, 2018. Damian Collins MP for Folkestone and Hythe Chair of the Digital, Culture, Media and Sport Select Committee T 020 7219 7072 www.damiancollins.com From: Theodore Kramer Date: Monday, 1 October 2018 at 19:47 To: Damian Collins Subject: Extensive evidence relevant to Facebook's data and privacy abuses Damian, I've been following your leadership in the House of Commons Culture, Media and Sport Select Committee over the past year and have been extremely impressed with your passion for finding the truth with regards to Brexit, Cambridge Analytica, and Facebook's involvement in all of the above. https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3A1616142203480613856&dsqt=1&simpl=msg-f%3A1616142203480613856 SIX4THREE 000015962 Page 2 of 4 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:46 PM My company has been in litigation with Facebook and Mark Zuckerberg for three years and has obtained extensive discovery of communications between Zuckerberg and numerous other Facebook executives and employees regarding Facebook's treatment of user data and third party developers from 2007 to 2015. Just recently, Carole Cadwalladr of The Guardian published two articles related to our case and what we have uncovered during discovery since we filed suit. https://www.theguardian.com/technology/2018/may/24/mark-zuckerberg-set-up-fraudulent-scheme-weaponise-datafacebook-court-case-alleges https://www.theguardian.com/technology/2018/may/24/facebook-accused-of-conducting-mass-surveillance-throughits-apps?CMP=share_btn_tw I believe the information we have uncovered demonstrates clearly that Facebook violated the privacy of US citizens and its prior settlement with the FTC. I have attempted to summarize the public information from our case below. I have also attached a summary of public information regarding the conduct and our most recent opposition filed in California State Superior Court. Finally, I have attached a document that should assist you and your committee as you approach Facebook for documentation and evidence related to the company's handling of user data since January 1st, 2012. Carole recommended we send it to you. I would really like to take the opportunity to talk to you about our case. Would you and your staff be open to a phone call? Regards, Ted Kramer -We believe the evidence obtained in our ongoing litigation demonstrates that Zuckerberg architected a fraudulent scheme in mid-2012 in discussions with Chris Cox, Javier Olivan, Sheryl Sandberg, Dan Rose and Sam Lessin, among others. The purpose of the scheme was to weaponize friend data in order to unfairly boost Facebook’s transition from desktop to mobile advertising and to wipe out competition in messaging, contact, photo, video and other consumer software markets. The scheme entailed Facebook entirely ignoring its policies and privacy settings on user data (particularly friend data) for organizations that provided revenues or other financial benefit to Facebook in https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3A1616142203480613856&dsqt=1&simpl=msg-f%3A1616142203480613856 SIX4THREE 000015963 Page 3 of 4 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:46 PM order to boost its user growth and mobile ad sales. We allege the scheme was communicated to senior Platform employees in October and November 2012, at which time they had planned a public announcement to remove friend data, but Zuckerberg directed them not to do so. Instead, from 2012 on, Zuckerberg used friend data maliciously as a stick to force companies to buy mobile ads to save Facebook's advertising business, which was not prepared for the transition from desktop computers to mobile phones. In other words, Zuckerberg tied the unrelated data and advertising products together in a malicious way. For companies who paid up in mobile ads, Zuckerberg didn't care what they did with the friend data. For companies who wouldn't pay for mobile ads or that Zuckerberg considered too competitive, Zuckerberg shut off their access to friend data even though Facebook made it available to all developers at the time. We have uncovered numerous instances of Facebook recognizing a policy violation related to user data and deciding not to enforce it in order to avoid interruption of purchases in its nascent mobile app install ads product. Further, throughout this period from 2012 to 2015, Facebook never provided third party developers with any privacy settings when it passed user data. In other words, if Facebook knew that a user had set a photo for only "friends" to see, it refused to pass that information along to the third party developer notwithstanding that employees reported this "bug" for years. Thus, it was not even possible for Professor Kogan and Cambridge Analytica to determine how one of the quiz app's users wanted their data treated. That doesn't negate the wrongful conduct of Cambridge Analytica and others, but it does demonstrate that Facebook was the initially culpable actor here, not a third party. Facebook also deliberately took no further measures from 2012 to 2014 in order to make privacy controls around friend data more transparent and ubiquitous. This was not an accident. This was done deliberately to enable Zuckerberg to weaponize the friend data to boost partners who paid Facebook extraordinary sums in mobile advertisements that saved Facebook's advertising business in late 2012 and 2013. Facebook would not have the business it has today if Zuckerberg had not deliberately created the environment that Cambridge Analytica exploited. In sum, the Cambridge Analytica abuse was only possible because Zuckerberg became very desperate in mid/late 2012 to save his advertising business, which was collapsing due to the fact that people began using smartphones instead of computers. Zuckerberg's scheme to arbitrarily enforce policies and friend data access based on mobile ad payments was concealed from most Facebook employees until very late 2013. Zuckerberg had begun working on a false privacy narrative for the scheme as early as 2012 and began testing it with employees in early 2013. The scheme was announced as Graph API 2.0 on April 30, 2014 with an entirely false privacy narrative (that the executives who implemented it self-consciously recognized as false) and which hid Facebook’s decision to put a wall around its Platform behind the announcement of an unrelated project revamping Facebook’s Login product. Interestingly, Facebook's original announcement removing friend data in April 2014 noted only that "several rarely used endpoints" were being removed. Internal emails show that these endpoints, including friend data, were the most widely used in Platform, contradicting Facebook's public claims. The fact that these endpoints were widely used appears obvious now in light of the fact that Cambridge Analytica used them to access data for 50 million consumers. Thus, Facebook's 2015 statement that the endpoints were "rarely used" is at best intentionally misleading. Finally, we have alleged that Facebook engaged in almost a dozen projects after the FTC Order in which Facebook misled users regarding how their data was treated, ranging from commingling Onavo data with Facebook data prior to any update to the Onavo terms of service to the decision to track the texts and call logs of Android users without sign off from the privacy and legal departments at Facebook (and without updating the Facebook Android permissions) to deliberately ignoring privacy settings for a popular Facebook feature to Zuckerberg's repeated requests that when a user sets the privacy on a piece of data to "only me" that Facebook must make that setting "unsticky" to encourage users to share their data more broadly than they feel comfortable doing. UK Parliament Disclaimer: this e-mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This email has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this e-mail. This e-mail address is not secure, is not encrypted and should not be used for sensitive data. https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3A1616142203480613856&dsqt=1&simpl=msg-f%3A1616142203480613856 SIX4THREE 000015964 Page 4 of 4 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses E! Gmail 11/30/18, 7:49 PM Theodore Kramer Extensive evidence relevant to Facebook's data and privacy abuses Theodore Kramer To: damian.collins.mp@parliament.uk Cc: damianntc@googlemail.com Sun, Nov 4, 2018 at 3:29 PM Dear Mr. Collins, Thanks for your note. I can confirm that your description of the documents in my possession is accurate. These documents are subject to confidentiality under a protective order entered in San Mateo Superior Court in California. Carole mentioned you may be seeking to subpoena the documents. I will agree to accept service of a subpoena mailed to my home address: 1267 Chestnut St., Apt 6, San Francisco, California 94109. Upon receipt of any subpoena, I would be required to notify Facebook. If Facebook wishes to prevent my compliance, it will need to take action in appropriate fora. If you wish to speak, it is best we setup a phone call with a conference line. We always have a member of our legal team on the line to ensure we have witnesses of what was discussed in the event Facebook takes retributive action against us. My personal view is that the documents you list in your note contain information highly relevant to your investigation regarding Facebook's data practices, and further that it would be impossible for the investigation to reach any legitimate conclusions without a thorough review of this information. Regards, Ted On Sat, Nov 3, 2018 at 12:28 PM COLLINS, Damian wrote: Dear Ted Thank you so much for getting in touch about this. I have spoke with Carole about this and would really like to do anything I can to help on this very important issue. Carole has suggested I write to you with the following request [see below] – can I just check with you directly that this is correct I have also copied in here my private gmail and my UK mobile phone number is +447775947158 We are planning an international meeting of the select committee on 27th November and this could provide the perfect opportunity to explore the issues that you have been involved with https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3489899172247540126&dsqt=1&simpl=msg-a%3Ar-3489899172247540126 SIX4THREE 000015965 Page 1 of 5 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:49 PM Best wishes Damian I write concerning documents in your possession related to the matter of Six4Three, LLC v. Facebook, Inc., filed on April 10, 2015 in California Superior Court, County of San Mateo (CIV533328). The following categories of documents have been deemed highly relevant to ongoing Committee investigations: Unredacted copy of Plaintiff Six4Three's Corrected Memorandum of Points and Authorities in Opposition to Defendants' Special Motions to Strike (Anti-SLAPP) filed on May 18, 2018; Unredacted copy of the Declaration of David S. Godkin in Support of Six4Three's Anti-SLAPP Opposition ("Godkin Anti-SLAPP Declaration") filed concurrently therewith on May 18, 2018; Exhibits 1-212 to the Godkin Anti-SLAPP Declaration filed on May 18, 2018; All documents containing summaries or analyses of any of the exhibits to the Godkin AntiSLAPP Declaration filed on May 18, 2018. Damian Collins MP for Folkestone and Hythe Chair of the Digital, Culture, Media and Sport Select Committee T 020 7219 7072 www.damiancollins.com https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3489899172247540126&dsqt=1&simpl=msg-a%3Ar-3489899172247540126 SIX4THREE 000015966 Page 2 of 5 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:49 PM From: Theodore Kramer Date: Monday, 1 October 2018 at 19:47 To: Damian Collins Subject: Extensive evidence relevant to Facebook's data and privacy abuses Damian, I've been following your leadership in the House of Commons Culture, Media and Sport Select Committee over the past year and have been extremely impressed with your passion for finding the truth with regards to Brexit, Cambridge Analytica, and Facebook's involvement in all of the above. My company has been in litigation with Facebook and Mark Zuckerberg for three years and has obtained extensive discovery of communications between Zuckerberg and numerous other Facebook executives and employees regarding Facebook's treatment of user data and third party developers from 2007 to 2015. Just recently, Carole Cadwalladr of The Guardian published two articles related to our case and what we have uncovered during discovery since we filed suit. https://www.theguardian.com/technology/2018/may/24/mark-zuckerberg-set-up-fraudulent-scheme-weaponise-datafacebook-court-case-alleges https://www.theguardian.com/technology/2018/may/24/facebook-accused-of-conducting-mass-surveillance-throughits-apps?CMP=share_btn_tw I believe the information we have uncovered demonstrates clearly that Facebook violated the privacy of US citizens and its prior settlement with the FTC. I have attempted to summarize the public information from our case below. I have also attached a summary of public information regarding the conduct and our most recent opposition filed in California State Superior Court. Finally, I have attached a document that should assist you and your committee as you approach Facebook for documentation and evidence related to the company's handling of user data since January 1st, 2012. Carole recommended we send it to you. https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3489899172247540126&dsqt=1&simpl=msg-a%3Ar-3489899172247540126 SIX4THREE 000015967 Page 3 of 5 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:49 PM I would really like to take the opportunity to talk to you about our case. Would you and your staff be open to a phone call? Regards, Ted Kramer -We believe the evidence obtained in our ongoing litigation demonstrates that Zuckerberg architected a fraudulent scheme in mid-2012 in discussions with Chris Cox, Javier Olivan, Sheryl Sandberg, Dan Rose and Sam Lessin, among others. The purpose of the scheme was to weaponize friend data in order to unfairly boost Facebook’s transition from desktop to mobile advertising and to wipe out competition in messaging, contact, photo, video and other consumer software markets. The scheme entailed Facebook entirely ignoring its policies and privacy settings on user data (particularly friend data) for organizations that provided revenues or other financial benefit to Facebook in order to boost its user growth and mobile ad sales. We allege the scheme was communicated to senior Platform employees in October and November 2012, at which time they had planned a public announcement to remove friend data, but Zuckerberg directed them not to do so. Instead, from 2012 on, Zuckerberg used friend data maliciously as a stick to force companies to buy mobile ads to save Facebook's advertising business, which was not prepared for the transition from desktop computers to mobile phones. In other words, Zuckerberg tied the unrelated data and advertising products together in a malicious way. For companies who paid up in mobile ads, Zuckerberg didn't care what they did with the friend data. For companies who wouldn't pay for mobile ads or that Zuckerberg considered too competitive, Zuckerberg shut off their access to friend data even though Facebook made it available to all developers at the time. We have uncovered numerous instances of Facebook recognizing a policy violation related to user data and deciding not to enforce it in order to avoid interruption of purchases in its nascent mobile app install ads product. Further, throughout this period from 2012 to 2015, Facebook never provided third party developers with any privacy settings when it passed user data. In other words, if Facebook knew that a user had set a photo for only "friends" to see, it refused to pass that information along to the third party developer notwithstanding that employees reported this "bug" for years. Thus, it was not even possible for Professor Kogan and Cambridge Analytica to determine how one of the quiz app's users wanted their data treated. That doesn't negate the wrongful conduct of Cambridge Analytica and others, but it does demonstrate that Facebook was the initially culpable actor here, not a third party. Facebook also deliberately took no further measures from 2012 to 2014 in order to make privacy controls around friend data more transparent and ubiquitous. This was not an accident. This was done deliberately to enable Zuckerberg to weaponize the friend data to boost partners who paid Facebook extraordinary sums in mobile advertisements that saved Facebook's advertising business in late 2012 and 2013. Facebook would not have the business it has today if Zuckerberg had not deliberately created the environment that Cambridge Analytica exploited. In sum, the Cambridge Analytica abuse was only possible because Zuckerberg became very desperate in mid/late 2012 to save his advertising business, which was collapsing due to the fact that people began using smartphones instead of computers. Zuckerberg's scheme to arbitrarily enforce policies and friend data access based on mobile ad payments was concealed from most Facebook employees until very late 2013. Zuckerberg had begun working on a false privacy narrative for the scheme as early as 2012 and began testing it with employees in early 2013. The scheme was announced as Graph API 2.0 on April 30, 2014 with an entirely false privacy narrative (that the executives who https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3489899172247540126&dsqt=1&simpl=msg-a%3Ar-3489899172247540126 SIX4THREE 000015968 Page 4 of 5 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:49 PM implemented it self-consciously recognized as false) and which hid Facebook’s decision to put a wall around its Platform behind the announcement of an unrelated project revamping Facebook’s Login product. Interestingly, Facebook's original announcement removing friend data in April 2014 noted only that "several rarely used endpoints" were being removed. Internal emails show that these endpoints, including friend data, were the most widely used in Platform, contradicting Facebook's public claims. The fact that these endpoints were widely used appears obvious now in light of the fact that Cambridge Analytica used them to access data for 50 million consumers. Thus, Facebook's 2015 statement that the endpoints were "rarely used" is at best intentionally misleading. Finally, we have alleged that Facebook engaged in almost a dozen projects after the FTC Order in which Facebook misled users regarding how their data was treated, ranging from commingling Onavo data with Facebook data prior to any update to the Onavo terms of service to the decision to track the texts and call logs of Android users without sign off from the privacy and legal departments at Facebook (and without updating the Facebook Android permissions) to deliberately ignoring privacy settings for a popular Facebook feature to Zuckerberg's repeated requests that when a user sets the privacy on a piece of data to "only me" that Facebook must make that setting "unsticky" to encourage users to share their data more broadly than they feel comfortable doing. UK Parliament Disclaimer: this e-mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This e-mail has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this e-mail. This e-mail address is not secure, is not encrypted and should not be used for sensitive data. https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3489899172247540126&dsqt=1&simpl=msg-a%3Ar-3489899172247540126 SIX4THREE 000015969 Page 5 of 5 Digital, Culture, Media and Sport Committee House of Commons, London SW1 A OAA Tel 020 7219 6120 Email cmscom@parliament.ukWebsite www.parliament.uk/cms Mr Theodore Kramer 1267 Chestnut St., Apt 6, San Francisco, California 94109 USA 6 November 2018 Dear Mr Kramer The UK House of Commons Digital, Culture, Me9ia and Sport Committee, of which I am Chair, would like to request several documents that we believe to be in your possession. They relate to the matter of Six4Three, LLC v. Facebook, Inc., filed on April 10, 2015 in California Superior Court, County of San Mateo (CIV533328). The following categories of documents have been deemed highly relevant to ongoing Committee investigations: • Unredacted copy of Plaintiff Six4Three's Corrected Memorandum of Points and Authorities in Opposition to Defendants' Special Motions to Strike (Anti-SLAPP) filed on May 18, 2018; • Unredacted copy of the Declaration of David S. Godkin in Support of Six4Three's Anti-SLAPP Opposition ("Godkin Anti-SLAPP Declaration") filed concurrently therewith on May 18, 2018; • Exhibits 1-212 to the Godkin Anti-SLAPP Declaration filed on May 18, 2018; • All documents containing summaries or analyses of any of the exhibits to the Godkin Anti-SLAPP Declaration filed on May 18, 2018. I should highlight that, if any disclosure of this material to the Committee has consequences in the US courts, the Committee cannot protect you. Committee proceedings are subject to parliamentary privilege in the United Kingdom under Article IX of the 1689 Bill of Rights, but this legislation does not have extraterritorial effect and could not be expected to be upheld in a US court. Yours sincerely, Damian Collins MP Chair, Digital, Culture, Media and Sport Committee SIX4THREE 000015970 Gmail - FW: Letter from DCMS Committee 11/30/18, 7:51 PM Theodore Kramer FW: Letter from DCMS Committee CHALLENDER, Chloe Tue, Nov 6, 2018 at 8:54 AM To: "theodore.kramer@gmail.com" Cc: "WILLOWS, Josephine" , "Culture, Media & Sport Committee" Dear Mr Kramer If I may introduce myself, I am Clerk of the Digital, Culture, Media and Sport Committee here in the UK House of Commons. I am writing on behalf of the Chair, Damian Collins MP. I understand that Mr Collins has been in touch with you about documents in your possession that may be helpful to our Fake News inquiry. Mr Collins has edited the early draft of the letter that you may have seen; the new version is attached. We plan to send this to you in the post tomorrow. Damian wished to say that we are happy to publish the letter if this would be of assistance. Please let me know what you think? Best wishes, Chloe Chloe Challender Clerk Digital, Culture, Media and Sport Committee House of Commons London SW1A 0AA Tel: 020 7219 6120 E-mail: challenderc@parliament.uk www.parliament.uk/cms @CommonsCMS UK Parliament Disclaimer: this e-mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This ehttps://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…msg-f%3A1616404283952909688&simpl=msg-f%3A1616404283952909688 SIX4THREE 000015971 Page 1 of 2 Gmail - FW: Letter from DCMS Committee 11/30/18, 7:51 PM mail has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this e-mail. This e-mail address is not secure, is not encrypted and should not be used for sensitive data. 181106 Chair to Theodore Kramer.pdf 61K https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…msg-f%3A1616404283952909688&simpl=msg-f%3A1616404283952909688 SIX4THREE 000015972 Page 2 of 2 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses E! Gmail 11/30/18, 7:54 PM Theodore Kramer Extensive evidence relevant to Facebook's data and privacy abuses COLLINS, Damian To: Theodore Kramer Tue, Nov 13, 2018 at 10:13 AM Ted One other thought, following the email I sent to you earlier. Would we be clear to publish what you have already sent us as written evidence without there being any repercussions for you? [Whilst we have immunity, you still need to consider your own position] Also would there be any other documents you could give us which are unrestricted and might help to add to the story? Best wishes Damian Damian Collins MP for Folkestone and Hythe Chair of the Digital, Culture, Media and Sport Select Committee T 020 7219 7072 www.damiancollins.com From: Theodore Kramer https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=a…3A1617043486114473354&dsqt=1&simpl=msg-f%3A1617043486114473354 SIX4THREE 000015973 Page 1 of 4 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:54 PM Date: Monday, 1 October 2018 at 19:47 To: Damian Collins Subject: Extensive evidence relevant to Facebook's data and privacy abuses Damian, I've been following your leadership in the House of Commons Culture, Media and Sport Select Committee over the past year and have been extremely impressed with your passion for finding the truth with regards to Brexit, Cambridge Analytica, and Facebook's involvement in all of the above. My company has been in litigation with Facebook and Mark Zuckerberg for three years and has obtained extensive discovery of communications between Zuckerberg and numerous other Facebook executives and employees regarding Facebook's treatment of user data and third party developers from 2007 to 2015. Just recently, Carole Cadwalladr of The Guardian published two articles related to our case and what we have uncovered during discovery since we filed suit. https://www.theguardian.com/technology/2018/may/24/mark-zuckerberg-set-up-fraudulent-scheme-weaponise-datafacebook-court-case-alleges https://www.theguardian.com/technology/2018/may/24/facebook-accused-of-conducting-mass-surveillance-throughits-apps?CMP=share_btn_tw I believe the information we have uncovered demonstrates clearly that Facebook violated the privacy of US citizens and its prior settlement with the FTC. I have attempted to summarize the public information from our case below. I have also attached a summary of public information regarding the conduct and our most recent opposition filed in California State Superior Court. Finally, I have attached a document that should assist you and your committee as you approach Facebook for documentation and evidence related to the company's handling of user data since January 1st, 2012. Carole recommended we send it to you. I would really like to take the opportunity to talk to you about our case. Would you and your staff be open to a phone call? Regards, https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3A1617043486114473354&dsqt=1&simpl=msg-f%3A1617043486114473354 SIX4THREE 000015974 Page 2 of 4 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:54 PM Ted Kramer -We believe the evidence obtained in our ongoing litigation demonstrates that Zuckerberg architected a fraudulent scheme in mid-2012 in discussions with Chris Cox, Javier Olivan, Sheryl Sandberg, Dan Rose and Sam Lessin, among others. The purpose of the scheme was to weaponize friend data in order to unfairly boost Facebook’s transition from desktop to mobile advertising and to wipe out competition in messaging, contact, photo, video and other consumer software markets. The scheme entailed Facebook entirely ignoring its policies and privacy settings on user data (particularly friend data) for organizations that provided revenues or other financial benefit to Facebook in order to boost its user growth and mobile ad sales. We allege the scheme was communicated to senior Platform employees in October and November 2012, at which time they had planned a public announcement to remove friend data, but Zuckerberg directed them not to do so. Instead, from 2012 on, Zuckerberg used friend data maliciously as a stick to force companies to buy mobile ads to save Facebook's advertising business, which was not prepared for the transition from desktop computers to mobile phones. In other words, Zuckerberg tied the unrelated data and advertising products together in a malicious way. For companies who paid up in mobile ads, Zuckerberg didn't care what they did with the friend data. For companies who wouldn't pay for mobile ads or that Zuckerberg considered too competitive, Zuckerberg shut off their access to friend data even though Facebook made it available to all developers at the time. We have uncovered numerous instances of Facebook recognizing a policy violation related to user data and deciding not to enforce it in order to avoid interruption of purchases in its nascent mobile app install ads product. Further, throughout this period from 2012 to 2015, Facebook never provided third party developers with any privacy settings when it passed user data. In other words, if Facebook knew that a user had set a photo for only "friends" to see, it refused to pass that information along to the third party developer notwithstanding that employees reported this "bug" for years. Thus, it was not even possible for Professor Kogan and Cambridge Analytica to determine how one of the quiz app's users wanted their data treated. That doesn't negate the wrongful conduct of Cambridge Analytica and others, but it does demonstrate that Facebook was the initially culpable actor here, not a third party. Facebook also deliberately took no further measures from 2012 to 2014 in order to make privacy controls around friend data more transparent and ubiquitous. This was not an accident. This was done deliberately to enable Zuckerberg to weaponize the friend data to boost partners who paid Facebook extraordinary sums in mobile advertisements that saved Facebook's advertising business in late 2012 and 2013. Facebook would not have the business it has today if Zuckerberg had not deliberately created the environment that Cambridge Analytica exploited. In sum, the Cambridge Analytica abuse was only possible because Zuckerberg became very desperate in mid/late 2012 to save his advertising business, which was collapsing due to the fact that people began using smartphones instead of computers. Zuckerberg's scheme to arbitrarily enforce policies and friend data access based on mobile ad payments was concealed from most Facebook employees until very late 2013. Zuckerberg had begun working on a false privacy narrative for the scheme as early as 2012 and began testing it with employees in early 2013. The scheme was announced as Graph API 2.0 on April 30, 2014 with an entirely false privacy narrative (that the executives who implemented it self-consciously recognized as false) and which hid Facebook’s decision to put a wall around its Platform behind the announcement of an unrelated project revamping Facebook’s Login product. Interestingly, Facebook's original announcement removing friend data in April 2014 noted only that "several rarely used endpoints" were being removed. Internal emails show that these endpoints, including friend data, were the most widely used in Platform, contradicting Facebook's public claims. The fact that these endpoints were widely used appears obvious now in light of the fact that Cambridge Analytica used them to access data for 50 million consumers. Thus, Facebook's 2015 statement that the endpoints were "rarely used" is at best intentionally misleading. https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3A1617043486114473354&dsqt=1&simpl=msg-f%3A1617043486114473354 SIX4THREE 000015975 Page 3 of 4 Gmail - Extensive evidence relevant to Facebook's data and privacy abuses 11/30/18, 7:54 PM Finally, we have alleged that Facebook engaged in almost a dozen projects after the FTC Order in which Facebook misled users regarding how their data was treated, ranging from commingling Onavo data with Facebook data prior to any update to the Onavo terms of service to the decision to track the texts and call logs of Android users without sign off from the privacy and legal departments at Facebook (and without updating the Facebook Android permissions) to deliberately ignoring privacy settings for a popular Facebook feature to Zuckerberg's repeated requests that when a user sets the privacy on a piece of data to "only me" that Facebook must make that setting "unsticky" to encourage users to share their data more broadly than they feel comfortable doing. UK Parliament Disclaimer: this e-mail is confidential to the intended recipient. If you have received it in error, please notify the sender and delete it from your system. Any unauthorised use, disclosure, or copying is not permitted. This email has been checked for viruses, but no liability is accepted for any damage caused by any virus transmitted by this e-mail. This e-mail address is not secure, is not encrypted and should not be used for sensitive data. https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…3A1617043486114473354&dsqt=1&simpl=msg-f%3A1617043486114473354 SIX4THREE 000015976 Page 4 of 4 Digital, Culture, Media and Sport Committee • House of Commons, London SW1 A OAA Tel 020 7219 6120 Email cmscom@parliament.ukWebsite www.parliament.uk/cms Mr Theodore Kramer London Marriott Hotel County Hall Westminster Bridge Rd London SEl 7PB 19th November 2018 Dear Mr Kramer, Order for documents The Digital, Culture, Media and Sport Committee has been given the power by the House of Commons under Standing Order No. 152(4) "to send for persons, papers and records". This includes the power to compel the production of papers by people within UK jurisdiction. On Monday 19 November, the Committee made the following order (which will be published in its formal minutes in due course): Ordered, That Mr Theodore Kramer submit the following documents to the DCMS Committee in relation to its inquiry into Disinformation and 'fake news', by 5pm on 20th November 2018: Unredacted copies of Six4Three's opposition to the anti-SLAPP (strategic lawsuits against public participation) motion, filed in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating Six4Three's opposition to the anti-SLAPP motion. We are requesting these documents because we believe that they contain information that is highly relevant to our ongoing investigation into disinformation and fake news. In particular, we are interested to know whether they can provide further insights to the committee about what senior executives at Facebook knew about concerns relating to Facebook users' data privacy, and developers' access to user data. The Committee's request is made for these reasons, and in no way suggests any support for the position of your organisation in its dispute with Facebook. As noted in Erskine May's Parliamentary Practice: "there is no restriction on the power of committees to require the production of papers by private bodies or individuals provided that such papers are relevant to the committee's work as defined by its order of reference. [ ... ] Solicitors have been ordered to produce papers relating to a client" (Erskine May, Parliamentary Practice, 24th edition, 2011, p.819.) As Erskine May also notes: "Individuals have been held in contempt who [ ... ] have disobeyed or frustrated committee orders for the production of papers" (p.839). Should you fail to comply with the order of the Committee and were found to be in contempt, you could face investigation and sanction by the House. We require the documents by 5pm on Tuesday 20th November 2018. I look forward to your compliance with this Order. Yours sincerely, 1~ ~ DAMIAN COLLINS MP CHAIR, DIGITAL, CULTURE, MEDIA AND SPORT COMMITTEE SIX4THREE 000015977 • Digital, Culture, Media and Sport Committee House of Commons, London SW1 A OAA Tel 020 7219 6120 Email cmscom@parliament.ukWebsite www.parliarnent.uk/cms 19 November 2018 Extract from formal minutes of the Committee of 19 November 2018: Ordered, That Mr Theodore Kramer submit the following documents to the DCMS Committee in relation to its inquiry into Disinformation and 'fake news', by 5pm on 20th November 2018: Unredacted copies of Six4Three's opposition to the anti-SLAPP (strategic lawsuits against public participation) motion, filed in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating Six4Three's opposition to the anti-SLAPP motion. DAMIAN COLLINS MP CHAIR, DCMS COMMITTEE SIX4THREE 000015978 Cheryl McDuffee From: To: Subject: Carole Cadwalladr Theodore Kramer; Carole Cadwalladr Ted/Carole DOCUMENT PRODUCED NATIVELY 1 SIX4THREE 000015979 Gmail - Accepted: Ted/Carole @ Mon Nov 19, 2018 9am - 10:30am (PST) (Theodore Kramer) 11/30/18, 7:55 PM Theodore Kramer Accepted: Ted/Carole @ Mon Nov 19, 2018 9am - 10:30am (PST) (Theodore Kramer) Carole Cadwalladr Reply-To: Carole Cadwalladr To: theodore.kramer@gmail.com Mon, Nov 19, 2018 at 12:01 AM Carole Cadwalladr has accepted this invitation. Ted/Carole When Mon Nov 19, 2018 9am – 10:30am Pacific Time - Los Angeles Where London Marriott Hotel County Hall, London County Hall, Westminster Bridge Rd, South Bank, London SE1 7PB, UK (map) Calendar Theodore Kramer Who • Theodore Kramer - organizer • carole_cadwalladr@hotmail.com • Carole Cadwalladr Invitation from Google Calendar You are receiving this email at the account theodore.kramer@gmail.com because you are subscribed for invitation replies on calendar Theodore Kramer. To stop receiving these emails, please log in to https://www.google.com/calendar/ and change your notification settings for this calendar. Forwarding this invitation could allow any recipient to modify your RSVP response. Learn More. This e-mail and all attachments are confidential and may also be privileged. If you are not the named recipient, please notify the sender and delete the e-mail and all attachments immediately. Do not disclose the contents to another person. You may not use the information for any purpose, or store, or copy, it in any way. Guardian News & Media Limited is not liable for any computer viruses or other material transmitted with or as part of this e-mail. You should employ virus checking software. Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396 D invite.ics 1K https://mail.google.com/mail/u/0?ik=f0e6f92e08&view=pt&search=…=msg-f%3A1617548518518329484&simpl=msg-f%3A1617548518518329484 SIX4THREE 000015980 Page 1 of 1 'U\('. ih ·_·, . ' ~, .. '41,l,. .,.:-., ..... ~..,,. ·:;:.t. ·•... ,,A, . - • ..._... !.., ._,: . .. . -~· ~ ~~,,.~~ ,,. • Digital, Culture, Media and Sport Committee __ 't'\\.\,~ 1, . . .... , ~ '" ..~-. --.,~-- -~-1 House of Commons, London SWlA OAA .,:,, I--=, ·. -. -~.. Tel 020 7219 6120; Email: cmscom@parliament.uk: Website: www.parliament.uk/cms 't~~- i-4.,~--:.; Mr Theodore Kramer London Marriott Hotel County Hall Westminster Bridge Rd London SE1 7PB ~l¥ ~i~~,~~~ }:t·f~ 21 November 2018 Dear Mr Kramer, Order for documents :I ·-~-. ~- I wrote to you on Monday 19 November to order documents under the Committee's power under Standing Order No. 152(4) "to send for persons, papers and records". This •, .., includes the power to compel the production of papers by people within UK jurisdiction. As I said, on Monday 19 November, the Committee made the following order (which will be published in its formal minutes in due course): Ordered, That Mr Theodore Kramer submit the following documents to the DCMS Committee in relation to its inquiry into Disinformation and 'fake news', by 5pm on 20th November 2018: Unredacted copies of Six4Three's opposition to the anti-SLAPP (strategic lawsuits against public participation) motion, filed in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating Six4Three's opposition to the anti-SLAPP motion. You did not comply with this order by the 5pm deadline and failed to supply us with a satisfactory reason for not doing so. We are re-issuing the Order, with a deadline of 11am today. Should you fail to respond by this time it will be my duty to ask the Committee immediately to report this matter to the House of Commons, and request that it take action against you. As a result oi fa'l.\l.ng to comply with an Order of the Committee you could be considered to be act'l.ng \n contempt and face investigation and sanction by the House. I have asked that the Serjeant at Arms, as warrant officer of the House, deliver this \etter to you in person. Yours sincerely, , MEDIA AND SPORT COMMITTEE SIX4THREE 000015981 ... ...... . ~iI ~ .IllI( ---~-(?r --~-\ -~ ·-~·. _:_ •h., '-,11 :,• ••" ·.. •.. • Digital, Culture, Media and Sport Committee House of Commons, London SWlA OAA Tel 020 7219 6120; Email: cmscom@parliament.uk: Website: www.parliament.uk/cms Mr Theodore Kramer London Marriott Hotel County Hall Westminster Bridge Rd London SEl 7PB 21 November 2018 Dear Mr Kramer, Order for documents On Monday 19 November, the Committee made the following Order: Ordered, That Mr Theodore Kramer submit the following documents to the DCMS Committee in relation to its inquiry into Disinformation and 'fake news', by 5pm on 20th November 2018: Unredacted copies of Six4Three's opposition to the anti-SLAPP (strategic lawsuits against public participation) motion, filed in the California courts, relating to the company's dispute with Facebook, along with any documents or notes relating Six4Three's opposition to the anti-SLAPP motion. You did not comply with this order by the 5pm deadline, and failed to supply us with a satisfactory reason for not doing so. I re-issued the Order on 20 November, with a deadline of 11am today. In the accompanying letter, I warned you that, should you fail to respond by the 11am deadline today, it would be my duty to ask the Committee immediately to r eport this matter to the House of Commons, and request that it take action against you. As a result of failing to comply with an Order of the Committee you could be considered to be acting in contempt and face investigation and sanction by the House. The letter was delivered to you in person at 9am this morning by the Serjeant at Arms, as warrant officer of the House. You again failed to comply. As a result, the Committee met at 11am and formally ordered that I report your noncompliance to the House. I have taken this action, and reported your failure to comply to the House. This will appear on today's formal record, and the process of investigation will commence. Yours sincerely, DAMIAN COLLINS MP, CHAm, DIGITAL, CULTURE, MEDIA AND SPORT COMMITTEE SIX4THREE 000015982 • Digital, Culture, Media and Sport Committee House of Commons, London SWlA OAA Tel 020 7219 6120; Email : cmscom@parliament.uk; Website : www.parliament.uk/cms Mr Theodore Kramer 1267 Chestnut Street Apt 6, San Francisco California 94109 22 November 2018 Dear Mr Kramer This letter confirms that Six4Three have provided the documents that the Committee ordered. We are grateful for your compliance. The Committee does not propose to take any further steps in respect of any potential contempt of Parliament. Yours sincerely, DAMIAN COLLINS MP CHAffi, DIGITAL, CULTORE, MEDIA AND SPORT COMMITTEE SIX4THREE 000015983 [Redacted Version of Document Proposed to be Filed under Seal] EXHIBIT 50 From: Thomas Scaramellino Sent time: 05 22 Cc: David Godkin; James Kruzer; Theodore Kramer Subject: Re: Follow up from call On Tue. May 22, 2018 at 8:26 AM. Thomas ScarameIlino (thomasscaramellino? 9111ail.com> wrote: Ted also mentioned you wanted to see the brief PB submitted claiming they are a media company and entitled to the ?rst amendment protections of a publication that needs to make such editorial decisions about content. See attached. I've also included our brief on the timeliness issue for here. Also: Ted would \ery, very much prefer to keep his name out of it at this point. Is it to describe the company?app without using any names speci?cally. I prefer the same. We would very much appreciate if the only name used is David Godkin= the lead cormsel on the case: as part of his statement. Please let us know. We realize eventually that it would be naive to assm1e Ted's name won't get out, but he wants to properly set this up with his current employer in case the media picks up on it quickly. He needs to handle it as would I. Appreciate any consideration you can provide on this. Thanks. On Tue: May 22. 2018 at 8:14 AM, Thomas Scaramellino