DURIE TANGRI LLP D FELE cng‘flkflw ‘ ' SONAL N MEHTA (SBN 222086) SAN MATFQ smehta@durietangn com JOSHUA H LERNER (SBN 220755) A8 ' jlerner@durietangri. com E. MILLER (SBN 271713) lmiller@durietangri com APR LAURA XV:I , CATHERINE Y. KIM (SBN 308442) ckim@durietangxi.com ZACHARY G. F. ABRAHAMSON (SBN 3 OOQON KO 10 1 095 1) zabrahamson@duri etangri.com 217 Leidesdorff Street San Francisco, CA 941 11 415—3 62-6666 Telephone: 415-23 6-6300 Facsimile: Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF- ‘SAN MATEO 13 SIX4THREE, LLC, a Delaware limited company, ‘ r . . CHRISTOPHER C0X> an mleIdual; JAVIER OLIVAN, an individual; 23 (Complex Civil Litigation). Dept: Judge: Honorable V. Raymond Swope SAMUEL LESSIN, an‘individual; MCHAEL VERNAL, an individual; I 22 ‘ ~ ‘ , . ‘ ILYA S‘UKHAR,‘ an individual; and 21 Hon. V. Raymond ’ FACEBOOKJNC, a‘Delaware corporation; ZUC ERG, an igdividual; DOES to DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR AN ORDER SHORTENING' TIME FOR DEPOSITIONS V- 16 20 purposes Swope, Dept. 23 15 19. all . Plalntlff, 18 2'8; ~ Assigned for ’ '17 cw 5333 Case No. liability 14 , l l 2019 ~ ' FILMG DATE. TRIAL DATE. ‘ 1-50, inclusive, 5' A ~ 110 201 25’ 2019 "A321 1 Defendants. CIV533328 EPA Ex Pane Application 23 24 fiiifuImmmmummum 25 j 26 27 28 DEFENDANT FACEBOOK, INC ’S EX PARTE APPLICATION FOR AN ORDER SHORTENING THVIE FOR DEPOSITIONS / CASE NO. CIV 533328 Defendant Facebook, Inc. (“Facebook”) applies ex parte for an order shortening time for depositions. Notice of this application was provided to Plaintiff Six4Three, Godkin, LLP, Mr. Gross, Gross & Klein LLP, MI. Kramer, and Mr. LLC (“Six4Three”), conn_sel for Bimbaum & Godkin, LLP, Mr. Gross, Gross & Scaramellino, via email on April 10, 2019. In addition, Facebook has provided this application and supporting papers to and Bimbaum all counsel of record & Klein LLP, Mr. Kramer, and Mr. Scaramellino. This application is based upon the Memorandum .0f Points and Authorities, the Declaration of ZachaIy G.F. Abrahamson, and such additional evidence and argument as may be presented any hearing on at or before this matter. DURIE TANGRI LLP Dated: April 11, 2019 Zz ,M Bv: sbNAIJNfix/EEHTA JOSHUA H. LERNER LAURA E. MILLER CATHERINE Y. KIM ZACHARY G. F. ABRAHAMSON Attdfneys for Defendants Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Facebook, Sukhar 27 28 1 DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR DEPOSITIONS / CASE NO. CIV 533328 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION I. It has been twenty—six days since the of Six4Three and its to understand the scope to ‘ which the relevant individuals infonnation 01' Conn authon'zed discovely t0 allow the Conn and Facebook legal team’s breach of multiple court orders were involved. Since then, and the extent Facebook has received zero additional discovely relating to those breaches—Mr. Scaramellino ’s attorney refuses to accept sewice of a subpoena or serve ' tell Facebook where Mr. Scaramellino can be found (and Facebook’s attempts him at every residential to or business address that Mr. Scaramellino and/or his co1mse1 have identified in the past have failed), and Six4'Ihree’s lawyers have lodged numerous objections to Facebook’s subpoenas (including objections for which they could not plausibly have any good-faith basis) but have failed to make meet and confer on those themselves available in response to multiple requests by Facebook to even objections. Meanwhile, Six4Th1'ee has spent the la st month doggedly pursuing nalrative about Facebookg using the infonnation lend credibility to its it obtained under this fanciful allegations. Beginning in late week, Six4Three began poéting online about more media and public this its agenda to puBlicize Coun’s protective order t0 Febmaly and continuing to tly to as recently as last case and Facebook, appargntly in an effort to bring attention io'flle docimiehts it leaked and its campaign against Fa cebook. Tuesday night, Facebook received an email from a national broadcast network in the United _ its faise And ' 0n States advisingbmanheknas obramea Just based ~ on the-number ofpages, the scope of this leak appears -to be broader than th'e documentsMr. Kramer previously spggestgd he had leaked to the DCMS Committee (i.e., the'Godkjn ~ . Declaratipn and exhibits). Facebook has no idea .when these documents were leaked or t0 indeéd, the network’s e-mail suggests filat entities besides the troves ofconfidential and highly confidential infonnation whom— DCMS Committee received significant fiom this case. What Facebook does know— fromme mediaommsew—is mat ’2 DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR DEPOSITIONS f CASE NO. CIV 533328 I I Abrahamson Decl. Ex. 1'11 Supp. of Facebook’s submitted herewith (“Abrahamson Decl.”): 2. In other words? Six4ThIee and UI Ex Parte Appl. with the media 011 its legal team have apparently had no issue continuing to engage these issues even as they refuse to engage in good faith in the discovery process this Court has ordered to get to the bottom of their crime permitted to pursue its 01‘ fraud. And while Six4Th1‘ee continues to be agenda online and in the media, the prejudice to Facebook is compounding. With OOOQQ evely passing day, Facebook receives fresh infonnation—nof through the discovely process and not from Six4Three or the its legal team, but from the media—that Coufi knew and that Six4Three At this point, continues to seek to exploit the leaked documents for about What was leaked and to be required and will take time. But there asks that fhe Court order (1) Mr. 01' is Whom. To be Facebook’s counsel; and (2) threshold infonnation Facebook is entitled t0 now. Kramer and Mr. Scaramellino that, 'foi'efisic to each sit for a two—hour deposition by by the Court and examiner prbduce to both sides all emails t0 and from whom appears Six4Three and it its legal (i.e., team were discussmg Facebook’s confidential and highly cbnfidential inflammation). These limited steps are still Facebook domains idenfi fled in Exhibit 3 ofthe Abrahamson Declamtion, attached hereto 'for flle‘m'edia'entities .Wi’rh Facebook and the ends. within 48 hours 0f receiving Mr. Scaramellino and M1: Kramer’s emails fi'om Stroz Fi‘iedberg, the neutral email domains own sure, a full investigation will in the alternative to appear live in coun' on Aplil 15 for examination the specific email its Facebook and Court simply cannot wait weeks or months for the discovery process t0 play out to learn basic. facts Apn'l 15, go broader and deeper than Facebook 01‘ the leaks critical to allowing Coufl to undemtand What Facebook confidential and highly confidential infonnation out there, who_might have take to_stop the lehaks it, what Six4Three fi‘om proliferating. Anytlfing coiltinue to leverage the documents it do with cont_inues to less would it, and what steps the Coufi can give Six4Three weeks: if not months, leaked in violation 0f the Comfs :to orders while continuing t0 keep Facebook and the Court in the dark 0n What was leaked in the first place. ‘ 3 DEFENDANT FACEBOOK, INCFS EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR DEPOSITIONS CASE NO. CIV 533328 i' is BACKGROUND II. Six4Three and A. On Apn'l 9, its Legal Team Continue to Violate the Court’s Orders 2019, a repofler contacted Facebook and said Abrahamson 'JI Dec1., Ex. The repofier quoted a 1. t0 the Individual Defendants’ series of exhibits to the Declaration of David Godkin in Opposition Anti—SLAPP motion, many of which had not been previously published by COONQ the DCMS Committee (or anyone else, t0 Facebook’s knowledge). beyond the But Godkjn Declaration. The sheer volume of documents makes this new leak appears that plain: the to go far Godkin Declaration contained approximately 33800 pages 0f Facebook confidential infOImation, Whereas this new leak apparently includes an additional 3,200 pages. "file repofler also quoted fi‘om a highly ‘ confidential document produced in this litigation but not attached as an exhibit to the Godk'm Declaration. See id. Facebook has not identified any pn'or filing which to that document was These quotations and the volume ofFacebook confidential documents confirm, Six4Three or its legal team attached. for the first time, that beyond the Godkin disclosed confidential and highly confidential documents Declaration in violation oflthis Court’s orders. W’orse, the reporter’s e—mail suggests for The first time that‘eu‘tities beyond the DCMS Committee received a document dump comprising thousands of pages of confidential and highly confidential information. See — On Apn'l id. (describing ) ‘ (emphasis added) 10 the reporter wrote to Facebook again. The repofier informed Facebook. - . ' . h Ablahamson Dec]. Ex. 2. If eithel Ml. Klamer 01 . Mr. Scalamellino discussed with the network Facebook’s confidential and highly confidential information (even information that become public through the leaks), those discussions had would be yet another Violation of this Coun’s protective order. See Stip. Protective Order fig 3, 6 (Oct. 25, 2016). B. Meanwhile, Six4Three and its Legal Team Refuse t0 Participate in Discovery Within days of the Coun’s March 15 order authorizing discovery, Facebook served document requests on Six4Th1'ee—seeking the documents 0f pafiy-witness Ted Kramer—and sewed subpoenas on 4 DEFENDANT FACEBOOK, ]NC.’S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR DEPOSITIONS i CASE NO. C‘IV 533328 Mr. Godkin and Mr. Gross. Abrahamson Dec]. 11 5. Facebook also began a weeks—long effort to subpoena Mr. Scaramellino. A11 three individuals needlessly delayed discovery: Mr. Godkin and Mr. Gross refused to produce any documents on the basis of boilerplate, inapplicable obj ections and continue to delay in meeting and conferring on those obj actions. See Abrahamson Decl., Exs. 4—8. MI. Scaramellino and his counsel Jack Russo, meanwhile, have refused to provide even a minimal level of cooperation in the service of MI. Scaramellino’s subpoena for nearly four weeks. Mr. Russo represented Court that the Forestburgh, to the New York, address identified in the Court’s November 30, 201 8 order was Mr. Scaramellino’s address, but ' Kramer’s Opp’n to Def. Facebook, it was not. See Third Party Thomas Scaramellino Inc. ’s Ex Parte Appl. Abrahamson Decl., Exs. 10 22, 2019); see also 11 Scaramellino). Then, after the Court suggested that 12 address, 13 See Case 14 5, 15 Decl. 16 III. Thomas Scaramellino’s Address Mgmt. Order No. 21 at 1 (Apr. Facebook has now attempted 4, at 2 (Mar. 10 (emails re attempts to effect service on Mr. Facebook serve Mr. Scaramellino at a business Mr. Russo refused to provide such an address for service or accept service on his 2019). 1] 9, re & Theodore 2019); Abrahamson service three times at Decl. Ex. 11, two addresses, Russo to no client’s behalf. letter to avail. Kim (Ap'r. Abrahamson 14. ARGUMENT ~ 17 A. The Court'Shoul'd Grant Facebook LeaVe Mr. Scaramellino 0n Shortened Time. to Notice Depositions of Mr. Kramer and 18 *7 Fac’ebook're’sp‘e‘cts 19_ th'_e orderly discovery process contemplated by the Court. To that end, 20 Facebook served Six4Thre'e with document requests and served subpoenas on Mr. Godkin and Mr.- 21 Gross. 22. for Facebook also sank thousands of dollars documents and continues {Q do_ so. in attempts to serve Yet not a single document has been produced, and nearly six 23 mpnths after'Facebook and the Court first ieamed of their 24 the scope of Six4Three and 25 that 26 its Facebook leamed of only Mr. Scaramellino with a subpoena initial leaks, we are no closer t to underistanding legal team’s multiple breaches of the Court’s orders, including the leak this week. In light of these circumstances, Facebook requests leave to notice depositions of Mr. Kramer and 27 Mr. Scaramellino on shortened time—specifically, for April 15, 2019. California’s Code of Civil 28 Procedure allows the Court shorten time 0n a deposition “for good cause shown.” See Civ. Proc. Code 5 DEFENDANT FACEBOOK, EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR DEPOSITIONS / CASE NO. CIV 533328 INC.’S motion or ex parte application of any party or deponent, § 2025.270(d) (“O11 001111 U) may shofien or extend the time for scheduling a deposition[.]”). Here: document leaks continue to mushroom and Facebook’s best mechanism is for good cause shown, the good cause exists because to learn the source of those leaks through the testimony of Mr. Kramer and Mr. Scaramellino. Depositions—beginning with depositions Un-h of Mr. Kramer and Mr. Scaramellino—can reveal what information Six4ThIee and with the press, including the its legal team shared ‘ a 1 Indeed, thefacuhm 000-40 shows depositions—not just documents—are necessaly to investigate Abrahamon Dec1., Six4ThIee’s violations. Facebook requests subsequent, that more fulsome Ex. 2 (emphasis added). that the Court grant these depositions immediate depositions without prejudice to of Mr. Kramer and Mr. Scaramellino once documents are produced. Generally, natural persons in Califomia are subject to deposition only once in fhe course of an action. See Civ. Proc. 001111 grants leave “for Code § 2025.610(a). good cause shown” But there are exceptions to this rule, including to “take a subsequent deposition” of a person previously deposed. Id. § 202561003). Here, géod cause exists for the Kramer and Mr. Scaralllellino document production. The leaks continue to spring pp Coufi t0 order tw0—h0ur depositions 0f MI. now, while allowing Facebook to depose them again 0n a must occur onim expedited schedule because deimsitio'ns where the while SiX4ThIee and its later date after substantial new counsel resist discovely. Facebook remains in the dark as to the scope ’of S.i2§4ThIeé and its legal team’s violations of the Court’s orders, and waiting t0‘ investigate this for mener and Mr. Weeks 01' pbtentially months longerz would continue to prejudice * ' - Facebook; Plus, Mr. Scaramellino will not be unduly burdened by these immediate depositions: Faéebook proposes twp-hour exanfingtiqns Irelated to MI. Kramer and MI. Scaramellino’s communications with the media. Bo-th individuals are represented-by counsel. And both individuals could sit for thesefiepositions in a single morning, or the depositions could take place back—to—back. 2 For example, at this point, it is unlikely that any isspes with respect to Facebook’s document'requests f0 Mr. Scammellino could be resolved at the Apnl 26 d1scove1y conference because Facebook stlll has not been able to serve him. ' 6 DEFENDANT FACEBOOK, ]NC.’S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIlViE FOR DEPOSITIONS CASE NO. CIV 533328 B. In the Alternative, Good Cause Exists to Compel the Appearance and Testimony 0f Mr. Kramer and Mr. Scaramellino. Even if the Court disinclined to order preliminary depositions, is information quickly. In particular, the Court testify and about their disclosures to media As Facebook 10. its & 2031.060; Cates February ex parte application, the Court unquestionably it. See generally Facebook Stip. Protective Order‘ at 10-11 (Feb. 25, v. Cal. Gambling Control Comm ’n, 2019) & Koehler 11 Code of Civil Procedure specifically 12 persons to testify in an action or proceeding pending therein[.]” Civ. Proc. 13 Silvagm' 14 unquestioned power of the court to compel 15 those provisions of Califomia’s 16 failure to appear. See, e.g., Civ. Préc. 17 'of 18 discretion to compel 19 about 'this . . . v. Ex (citing Civ. Proc. Code 154 Cal. App. 4th 1302, 1314 (2007) 10 v. this order Mr. Kramer and Mr. Scaramellino to appear and orders and control the proceedings before Parte Appl. for Order Enforcing §§ 128, 187 in its has other means to learn including the reporter that contacted Facebook on April 9 entities, explained at length has authority to enforce may it Superior Court, 181 Cal. App. 4th 1153, 1157 (2010)). Indeed, section 128(a)(6) of the provides the Court with power “[t]o compel the attendance of Code § 128(a)(6); see also Superior Court (Youngblood), 157 Cal. App. 2d 287, 292 (1958) (discussing “the a person ‘cas’e' who [a civil litigant] as Code of Civil Procedure Code § appear pursuant féjléd t6 Mr Kramer and Mr. a witness”). That power that let the protected by Court issue bench warrants for 1993 (a)(l) (“[T]he court to is may issue a warrant for the arrest a court order.”). So the Court would be well within its Scaramellino t0 appear and testify about their communications wi'fll‘media organizations. _ _ --20 Thé COurt Should Expedite C. and Its Legal the Production of Communications Between 'Six4Three Parties. Team and Third 21 The >22 broadcast network leak underscores the importance of learning what communications ‘ team had with members of the media and other 23 Six4Three and 24 previously shown, no possible privilege can attach to such communications, even apart from the Court’s 25 ruling 26 Klein LLP’s 27 Accordingly, Facebook requests that the Court order Vestigant—the neutral third party forensic examiner 28 appointed in this matter, see Case Mgmt. Order No. 22 (Apr. its legal third parties As Facebook has ' on the crime—fraud exception. See Facebook’s Opp’n Ex Parte Appl. to Bimbaum & Godkin, LLP and Gross & for Order Staying A11 Disc. Proceedings at 6: 1-1 8 (Mar. 27, 201 9). 2, 2019)—to produce such communications 7 DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR DEPOSITIONS / CASE NO. CIV 533328 within 48 hours of receiving data from Stroz Friedberg. this exparte a list To further this request, of third—pany e-mail domains with which Six4Three or have communicated.3 Using this list, its Facebook encloses with legal team are known to the neutral examiner can quickly identify documents relevant to Six4Three’s leaks. Accordingly, Facebook requests that the Court order Vestigant to produce communications to, from, or copying those third—party e-mail domains within 48 hours of receiving data from Stroz Friedberg. The paIties and Court can then continue to work out the forensic examiner to investigate the breaches of the Court’s order IV. rest 0f the protocol for the and to produce relevant documents. CONCLUSION For the foregoing reasons, the Court should grant Facebook’s exparte application for an order on the depositions of Ted Kramer and Thomas Scaramellino, 10 shortening time 11 order compelling their appearance and testimony. The 12 an order expediting production of Six4Three and its 13 Dated: April 11, 2019 DUKE TANGRI LLP - Coun legal or, in the alternative, for an should further grant Facebook’s request for team’s third—party communications. 14 Bv: HTA SONAL N. JOSHUA H. LERNER LAURA E. MJLLER CATHERINE Y. KIM 15 16 ZACHARY G. F. ABRAHAMSON 17‘ 18 Attorneys for Defendants Inc., Mark Zuckerberg, Chri stopher Cox, Javier Olivan, Samu‘el Lessin, Michael 4V'ernal,‘a‘nd Ilya' Facebook, 19 ' Sukhar 20 2 14- 22 2.3 - 24 25 26 27 28 3 Facebook derived this list from productions made by Six4Three’s lawyers and Gross & Klein LLP. at Bimbaum & Godkin, LLP 8 DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR DEPOSITIONS / CASE NO. CIV 533328 .- PROOF OF SERVICE am employed in San Francisco I 0f this Conn, at County, State of Califomia, in the office of a whose direction the sewice was made. party t0 the within action. On April 11, I member 0f the bar am over the age of eighteen years, and not a My business address is 217 Leidesdorff Street, San Francisco: CA 941 1 1. 2019, I served The following documents in the manner described below: DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR AN ORDER SHORTENING TI’NIE FOR DEPOSITIONS {E 000% BY ELECTRONIC SERVICE: By electronically mailing a tme and correct copy through Dude Tangri’s addresses set electronic mail system fi'om zabrahamson@durietang;ri.com to the email foflh below. On the following part(ies) in this action: 10 Jack Russo Stuafl G. Gross GROSS & KLEIN LLP 11 The Embarcadero, Pier 9, Suite 100 San Francisco, CA 941 l 1 sgross@grosskleinlaw.com 12 LLP CA jmsso@computerlaw.com csargent@computeflaw.com David S. (Bodkin James szer 14 Christopher Sal gent ComputelLaw Gr,oup 401 Florence Stl eet 94301 Palo Alto, ecf@c0mpute1‘law.com BIRNBAUM & GODKJN, LLP ‘ 280 Summer Street 022 1 0 Boston, 15 A tlomeyfor Theodore Krmner and Thonms MA Scaramellino (individual capacities) godkin@bimbaumgodkin.com 16 Steven Attomeysfor Plainfijj’ Mom'sou Mahoney LLP 250 Summer Street Boston, MA 022 1 0 17 Six4771ree, 18 Bolotin kruzer@bi111batln1godkin.com LLC J. Sbolotiu@.m011'isomnahoney.c0111 - 19 DonaldP. Sullivan Wilson Elser 525 Market Street 17th F1001 San ancisco C-A 94105 Llombard@mon'isomnahoney.com donald s_ullivan@\evilsonelser. c0111 Joyce. Vialpahd0@wilsonelser com Dea. Palumbo@wilsonelse1. com Thomas P Mazzucco Joseph Leve1 011i Mmphy Peamon Bmdley ‘ i James A. Mquhy James A. Lassart 88 Attorneyfoz G; oss (Q Klein LLP Keamy St San Francisco & Feeney 10th Floor CA 94108 .TMurphy@MPBF.com jlassax1@mpbf.com TMazzucco@MPBF.cmn JLeveroni@l\/IPBF .com Aftorvzeyfor Birnbazmz & Godkin, LLP DEFENDANT FACEBOOK, 1NC.’S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR DEPOSITIONS CASE NO. CIV 533328 I declare under penalty ofperjury under the laws of the United States of Amen'ca that the foregoing is true and correct. Executed on April 11, 2019, at San Francisco, z! California. ML Zachary G. F.‘ Abrahamson 1o 11 12 13 14 15 16 ’17 18 ‘19 20 .21 22 .23 24 25 26 27 28 10 DEFENDANT FACEBOOK, 1NC.’S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR DEPOSITIONS / CASE NO. CIV 533328