Jack Russo (Cal. Bar No. 96068) Christopher Sargent (Cal. Bar No. 246285) COMPUTERLAW GROUP LLP FELEENW SAM wmmzfi fifli 401 Florence Street Palo Alto, CA 94301 (650) 327-9800 office (650) 618-1 863 fax jrusso@computerlaw.com csargent@computerlaw.com APR l E 2815 Attorneys for Third Parties THEODORE KRAMER and THOMAS SCARAMELLINO \DOOQON SUPERIOR COURT 0F CALIFORNIA COUNTY 0F SAN MATEO 11 12 Six4Three, a Delaware limited company, liability Case N0. CIV533328 13 Plaintiff; 14 Assigned for all purposes to Hon. V. Raymond Swope, Dep’t 23 V. DECLARATION 0F THOMAS SCARAMELLINO 15 16 17 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—50, [SIGNATURE BY FAX] n I" fl _ CIV533328 DECL inclusive, ‘ . Declaration 19 Defendants. 20 fil‘iinmmmmummmum , 21 22 23 24 25 26 27 28 T. Scaramellino Decl. Case No. CIV533328 I, Thomas My name is Thomas 1. knowledge of the make Scaramellino, declare under penalty of perjury as follows. Scaramellino. and facts set forth herein I am I over the age of 18 and have personal could and would testify to them these statements in opposition t0 Facebook’s exparte application 2. I have never “leaked” or otherwise disclosed or oprril facilitated do if called to so. I 2019. 11, a “leak” or other disclosure of Facebook’s confidential 0r highly confidential information to any third party, including any media or government entity. \DOOQON Facebook’s repeated accusations before 3. this Court that I have leaked its confidential and highly confidential files to media and government entities, and further thatI No 10 have done so on multiple occasions, has absolutely no basis 11 involvement in any alleged leak has actually been placed before the Court nor has any been 12 subj ected t0 the requirements of due process, including 13 other form of cross-examination. 14 So long 4. cannot see how I as Facebook accepted could be given that I 16 to sit for a deposition 17 Mateo 18 counsel 19 previously complained to the Court that 20 made 5. March I by Facebook’s counsel 13, open court Facebook’s claim that remain willing t0 I I am target in events that was ordered of any contempt charge (as occurred in London), to attend in Facebook declined was evading its while I was its attempts to depose New York on the condition that I not be the target of any alleged contempt (as there 23 basis whatsoever for this) 24 condition for Which the Court previously provided at the 25 longer have a place of business in Manhattan. 26 6. No I My me are my home county in Sullivan County, 22 and also that San attempts to depose me. once again evading for a deposition in in offered my offer after having without basis. sit I person by the Court. 21 I my any actual evidentiary hearing or any was not the at the hearing. I actual evidence of in this “collateral litigation” 2019 hearing, which this offer in I had n0 role 15 for the that in fact. is sifiply no be deposed only once in this “collateral litigation,” a complaint or motion accusing me me March 13 hearing I attended. I no 0f any wrongdoing has been served on me 27 notwithstanding that Facebook has accused 28 parte application and about a half—dozen other motions or ex parte applications in recent months. T. Scaramellino Decl. of having committed a crime or fraud in 2 its ex Case No. CIV533328 If the circumstances are so extraordinary that they surely I should be entitled to know if I warrant multiple depositions of me, then am being deposed multiple times as a percipient witness, a defendant in a civil proceeding, 0r a defendant in a criminal proceeding, me to allegations sufficient for when all of the be deposed in any of those capacities have already been placed before the Court. On the morning oprril 7. hospital because I room 2019, Iwent t0 the emergency 8, was experiencing acute pain in my right knee at my local and was unable to bend my right \OOOQON The attending physician placed knee. have been using since. I my knee in an immobilizer and gave me crutches, which I have various appointments scheduled With orthopedic doctors, including am willing to provide 10 an anticipated lVIRI imaging exam, over the coming weeks. If necessary, 11 verification 0f the facts stated herein in camera t0 the Court 12 includes personal and confidential medical information from 13 result 14 Facebook. 15 deposition for an extended period of time and concentrate. Nonetheless, 16 Video 0r phone deposition for up to four hours on April 18 0r 19 on the condition, ordered by the 17 Court, that this will be the only deposition taken of me during this entire “collateral litigation”. 0f this issue, 18 8. I am I am further in substantial which request, systems records. As a I ability t0 sit for a am willing to sit for a Pursuant to an Order 0f this Court, on December 19, 2018, in the presence of firm and more than 20 all 21 confidential or highly confidential files. materials and communications in on my EPIC and acute pain which would affect my Facebook’s forensics 9. upon the Court’s unable to travel for a deposition during the timeframe requested by 19 22 I Sometime a half—dozen attorneys involved in this case, destroyed I my possession that might reflect or contain Facebook’s I further certified such destruction that in late February, Mr. Kramer mentioned to same day. me that NBC wanted t0 23 report 24 by Mr. Kramer With NBC reporters who have been preparing a story about Mr. Kramer and the 25 case. 26 attended. 27 have I this case. met an NBC in Since that time, I have participated reporter in person once, after the During the entire time in in phone March which Mr. Kramer and my possession, and to my knowledge Mr. I calls and exchanges 13 hearing, facilitated which the repomer had have engaged with NBC, Kramer has not had I did not in his possession, any of 28 T. Scaramellino Dec]. 3 Case No. CIV533328 Facebook’s confidential 0r highly confidential files. Thus, them to NBC, as 10. Facebook has made no showing Facebook claims in its than that very seizure. Almost half a year Kingdom Parliament to \DOOQQ 11. It it was not possible for me t0 transmit exparte application. that of documents by the United Kingdom Parliament in Court exactly what measures it later, any of the alleged “leaks” since the seizure late November come from any source Facebook still has not documented before this has taken, and what communications identify and secure its other it has had, with the United confidential and highly confidential documents. has been public for going on three years that 643’s generic allegations (which do not disclose any confidential information) rely on extensive published readily available facts, from the discovery phases 0f litigation. Amending a Complaint over 10 as well as facts collected 11 time (as 643 has done repeatedly through a Fifth Amended Complaint without objection by 12 Facebook) 13 counsel and local counsel were and are no exception. At n0 time did Facebook ever claim that 14 our Amended Complaints could not be publicly filed, and they were without objection. 15 is common practice followed by most business litigation attorneys and 643’s To the extent the Court’s ruling on the crime—fraud exception 12. 643 a relies trial upon the fact has “extensive evidence” and that allegations and characterizations are 16 that 17 based on extensive evidence, this has been public information since 18 did 19 regarding these statements and characterizations? For instance, the following information has 20 been readily available on the public docket for it states that it take Facebook more than two years to allege and at least January 2017. find a violation of the Why Protective Order many months: 21 o 22 23 “643’s review of Facebook’s initial production also clearly reveals the identities of the decision—makers and rough timeframes under which the decision at the heart 0f 643’s [Second Amended Complaint] was made. .. It is abundantly clear from Facebook’s production that the deceptive, anti-competitive and fraudulent scheme alleged by 643 . in SAC was 24 spearheaded by Mark Zuckerberg (CEO) sometime prior to October 2012 and involved at least the following individuals: Sam Lessin (VP Product Management), 25 Chris 26 its Cox (Chief Product Officer), Javier Olivan (VP Growth), Michael Vernal (VP The decision and its Engineering), and Ilya Sukhar (Head 0f Developer Products). 27 rationale were then communicated to the next layer of management, including Douglas Purdy (Director of Engineering), Constantin Koumouzelis (Product Manager), Dan Rose (VP Partnerships and Platform Marketing), Ime Archibong (Director, Strategic 28 Partnerships, T. Scaramellino Decl. Monica Bickert (Head of Global Policy Management), 4 Justin Osofsky Case No. CIV533328 (Director, Platform Operations) 2012 through the middle 0f 2013.” December 13, 2016 Order, filed January 20, and others, from Discovery Proposal Pursuant to Court’s late 2017, at 6-7. “Plaintiffs review of Facebook’s files confirms this suspicion and reveals abundant evidence specifically describing the negotiation 0f multiple, tied contracts (at least one contract to extract advertising payments and another to provide special data access). Facebook’s files further confirm that significant engineering effort and capital was deployed in executing these contracts. As such, Facebook and its partners are separate entities undertaking acts in concert which caused proximate harm t0 Plaintiff, other companies, and the public by actually depriving the marketplace of competition.” Reply to Opposition to Motion to Remand, filed February 9, 2017, at 9-10 (3:17-cv—00359- WHA, N.D. Cal.) \OOOQG “The evidence submitted by 10 11 Plaintiff supporting these claims consists of a large volume of internal discussions among Facebook employees regarding Defendants' motivations for, and implementation of, various decisions related to access t0 Facebook’s software APIs, primarily from 2012 to 2015, as well as reliance by Plaintiff on false representations concerning such access and damages suffered by Plaintiff when the 13 promised access was eliminated, including interference in its contractual and prospective relations with customers.” Proposed Order Denying Individual Defendants’ Special Motion to Strike, filed July 9, 2018, at 11. 14 “In mid—to-late 2012, the Conspiring Facebook Executives began communicating to 12 various Facebook employees that data access 15 16 17 companies would be severely that built applications related to contacts restricted to many and calendar management, messaging, photo sharing, video sharing and streaming, online dating, lifestyle, games, news, books, fitness and various utility applications.” Fifth Amended Complaint, filed January 12, 2018 (SAC) 1] 89 (39:14-18); Fourth Amended Complaint, filed November 2017 (4AC) 1] 1, 83 (30:24-28). 18 19 20 21 “Facebook architected its Platform in a manner designed to violate user privacy as early which entailed: (1) separating the privacy settings for data a user shared with friends in apps the user downloaded (“user data”) with the privacy settings (“Apps Others Use” settings) for data the user shared with friends in apps the friends downloaded as 2009, (“friend data”) (Jud. Not. Dec., 7); (2) 22 aware that these settings were 32, Ex. 31, Federal Trade Commission Complaint, at 4- distinct from the main privacy settings (Id, at 4-9); (3) “on” so Facebook could funnel more data to developers under the guise of user consent (1d, at 7-1 1); and making the 23 1T hiding the Apps Others Use settings t0 ensure most Facebook users were not default setting for sharing data with Apps Others Use set to 24 (4) deliberately failing to pass privacy settings for data transmitted to developers via 25 Facebook’s APIs, signaling to developers that all friend data was public and could be treated as such.” Opposition to Individual Defendants’ Anti-SLAPP Motion, filed May 17, 2018, at 2-3. 26 27 “Zuckerberg then brought Vernal directly into the discussions in late 2012 in order t0 oversee and implement the bait and switch plan. Upon information and belief, Vernal 28 T. Scaramellino Decl. 5 Case No. CIV533328 planned a public announcement 0f this decision prohibited the announcement.” “Upon SAC 1] at the end of 2012 but Zuckerberg 85 (37:14-17). information and belief, starting in mid—to-late 2012 and continuing through mid- 2013, Zuckerberg communicated the decision he had already made to restrict Graph API data in order to restrain competition for Facebook’s new products and t0 prop up Facebook’s new mobile on the Platform tea, including Vernal (VP Engineering for Platform), Sukhar (Head of Developer Products), Doug Purdy (Director of Engineering for Platform), Eddie O’Neil (Product Manager for Platform), and other senior members of the Platform and developer teams. Upon information and belief, starting in late 2012 and throughout 2013, at Zuckerberg’s instruction, Vernal, Sukhar, Purdy, O’Neil and others began implementing Zuckerberg’s advertising business to senior executives decision to restrict data access for anti—competitive reasons under the Reciprocity Policy 10 11 12 13 14 framework. Upon information and belief, the Platform team, managed by Vernal, was working on a public announcement of these changes t0 be released before the end of 2012. However, the changed were not publicly disclosed.” SAC fl 214 (76:1—12); 4AC 208 (66:10—21). “The Conspiring Facebook Executives made various layers of management aware ofthis decision on a need—to-know basis periodically from late 2012 until late 2013 and, at all times, required such employees to actively conceal and/or of these material “In the facts.” summer and fall 4AC 1] 16 17 make only partial disclosures 106 (40:24-27). of 2012, Lessin worked with Zuckerberg and other Facebook executives like Sheryl Sandberg, 15 Andrew Bosworth and Dan Rose to weaponize developers’ reliance 0n Facebook Platform by threatening to break many software applications unless the developer made significant purchases in unrelated advertising using Facebook’s was instrumental new mobile in advenising product. Upon information and belief, Lessin developing the plan whereby Facebook approached companies t0 buy advertising under the threat that if they did not do so, by removing access Facebook would break SAC their 18 applications 19 “This reference to Facebook as a ‘monopolist’ and as ‘monopolizing for itself 20 1T sufficient to make any t0 public Platform data.” 1] 26 (13:18-25). is not reasonable determination as t0 whether Facebook’s conduct was which it executed binding agreements to exchange for their continued access to data that had been shut off to all other companies, thereby giving these partners an insurmountable competitive advantage in various software markets.” Reply to Opposition to Motion to Remand, filed February 9, 2017, at 2 (3:17—cv-00359—WHA, N.D. Cal.). unilateral 0r in concert with other partners with 21 22 extract large advertising payments in 23 24 “Further, Zuckerberg’s bait and switch maliciously tied 25 its scheme violates the Cartwright Platform APIs (the tying product) to its Neko Act as Facebook advertising product (the which are entirely unrelated and distinct products. Facebook refused to 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) (Bus. & Prof. tied product), offer the Platform 26 27 28 T. Scaramellino Decl. 6 Case No. CIV533328 Code, 17, .” § 16727). . 2018, Opposition to Individual Defendants’ Anti-SLAPP Motion, filed May at 13-14, fn. 25. “Tinder, along with a number of other companies that rely upon photo or friend information from Facebook and executed whitelist agreements under Facebook’s mAmN ‘reciprocity principle,’ are competitors of Plaintiff. It is entirely plausible that Facebook and each of these entities constitute a trust under the Cartwright Act as they engaged in ‘a combination of capital, skill, 0r acts by two 0r more persons to achieve an anticompetitive end.’ The anticompetitive ends encompass restrictions in trade 0r 10 commerce, the reduced production of a commodity and contracts to preclude free competition, and the combination of interests in connection with a sale of advertising. For instance, the number and kinds of software applications from which consumers could choose decreased precipitously once Facebook shut down access to its data. Consumers were forced to choose from a much smaller p001 of applications — those developed exclusively by Facebook or companies from which Facebook could extract large advertising payments.” Reply to Opposition t0 Motion to Remand, filed February 9, 2017, at 14 (3:17—cv-00359-WHA, N.D. Cal.). 11 “At; \OOOQQ Zuckerberg’s personal direction, Facebook used its platform as a weapon t0 gain leverage against competitors in a host of ways, threatening to shut 12 13 14 15 placing the company’s business at great risk.” SAC 16 17 18 down access to company that crossed Facebook’s radar in a wide range of circumstances, including threats to shut down data access; unless the company sold to Facebook for a purchase price below their fair market value; unless the company purchased large amounts of unrelated advertising with Facebook; unless the company transferred intellectual property to Facebook; or unless the company fed all of its data back t0 Facebook, where it would then be available t0 the company’s competitors, publicly available data to any 1] 3 (3:9-17). 4AC 1] 3 (318—16). “Beginning in 2012 and continuing until 2015, at Zuckerberg’s personal direction, Facebook executives instructed their subordinates to identify categories 0f applications that would be considered competitive and to develop a plan to remove access t0 critical data necessary for those applications t0 function, thereby eliminating competition across 19 entire categories of software applications....” SAC 1] 7 (523-7); 4AC fl 7 (4:27—53). 20 21 22 23 “Zuckerberg held discussions With Defendants Cox, Olivan, and Lessin (in addition to other Facebook executives like Sheryl Sandberg, Daniel Rose, and Andrew Bosworth) where Zuckerberg communicated his decision to shut down access to Graph API data to were competitive with current Facebook products and with products Facebook may choose t0 launch in the future, even if Facebook had not begun working on such products.” SAC 1] 85 (3726-12); 4AC fl 79 (29:14—19). applications that 24 “Once Zuckerberg decided 25 26 27 28 remove the Graph API Data to competitors, Zuckerberg list 0f competitors that only he could authorize blacklisting from the Graph API Data. Upon information and belief, once a Developer was blacklisted from the Graph API Data, any applications the Developer built could no longer use any of the blacklisted data that Facebook purportedly provided publicly on fair and neutral terms to all Developers. Upon information and belief, blacklisted data often included the Graph API data, including the full friends list, friends permissions and t0 personally maintained an ever—growing T. Scaramellino Decl. 7 Case No. CIV533328 newsfeed APIs ~ data types that were among the most popular 0n Facebook Platform and upon which 643’s business and many other businesses depended.” SAC 1] 211 (7427-15). “Zuckerberg tasked Sukhar and Vernal with developing a plan to communicate and mask this fraudulent scheme to Facebook employees and, eventually, Developers and the public.” SAC 11 88 (3924-5); 4AC 11 82 (30:14-15). .p “Zuckerberg’s motivations for his decision to create a Reciprocity Policy and shut down API were two-fold: (1) restrain competition in a wide range of public access to Graph software markets to \DOOQOU} make room for new products from Facebook and 10 (63 11 “At 13 14 close partners; and (2) shut down all mechanisms for apps to grow organically in order to force apps t0 prop up Facebook’s new mobile advenising business or else Facebook would shut them down. The first motivation helped ensure that no new competitive threat could ever become as big as Facebook; the second motivation ensured that Facebook could make the transition from desktop to mobile without experiencing a significant drop in revenues in order t0 turn around the underperforming business.” 12 its 2 1 SAC fl 209 (73:5-13); 4AC 1] 203 8-26). by 2012, Zuckerbcrg personally oversaw a practice t0 weaponize Platform APIs, including a wide range of user and friend data, by inducing companies to rely on this data and then threatening t0 remove access unless these companies made exorbitant least purchases in Facebook’s nascent mobile advertising product, known internally as ‘Neko’ ads and publicly as “Mobile App Install” ads. Zuckerberg blacklisted any companies that refused to buy these Neko ads in exchange for continued access t0 data Facebook claimed for years was publicly available at n0 charge. This blacklisting practice also applied to companies that Zuckerberg in his sole discretion considered competitive with current or future Facebook products, even products Facebook had not yet built, and notwithstanding that most of these developers operated entirely within Facebook’s rules. Opposition to Individual Defendants’ Anti-SLAPP Motion, filed May that 15 16 17 17, 2018, at 4-8. 18 “Zuckerberg’s decision to weaponize a platform economy that Facebook represented for 19 20 21 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 years as open, fair and neutral million in the second and third quarters of 2012 because 22 23 24 25 26 it had n0 mobile advertising By mid-2012, Facebook’s most senior executives explored ways to leverage the fact that hundreds 0f thousands of companies relied on Facebook Platform in order business. to reboot its business for smartphones, presenting various options for restricting public Board of Directors in August 2012, including: [redacted]. In November 2012, after many months of discussion, Zuckerberg made his final decision to implement a version ofthe reciprocity policy called ‘full reciprocity,’ instead of implementing a public pricing program like Twitter or a revenue share model like the neutral platforms operated by Apple and Google - the top Platform executive, Vernal, Platform APIs to its referred to this decision as [redacted] outside Zuckerberg’s presence. Zuckerberg’s full 27 28 reciprocity policy caused Facebook’s privacy and policy apparatus t0 disintegrate in favor of an arbitrary enforcement environment in which Facebook offered user data, and T. Scaramellino Decl. 8 Case No. CIV533328 in particular friend data, to certain developers that were willing to reciprocate with Facebook, typically by agreeing to purchase no less than $250,000 per year in unrelated Neko ads, while other developers that Facebook considered competitive were from accessing this data even though they never broke any rules or violated anyone’s privacy.” Opposition to Individual Defendants’ Anti—SLAPP Motion, filed blacklisted May \DOOQON 17, 2018, at 4-8. “Facebook publicly announced an intentionally vague reciprocity policy in January 2013 that refused to define a ‘competitive’ service or ‘core functionality’ in order to mislead companies into thinking that only online social networks (e.g. MySpace, Linkedln) would be considered competitive; but Facebook’s internal definition of a competitive service included virtually every kind of consumer application, including those Facebook explicitly induced in its reciprocity announcement to continue using APIs it had already decided to shut down. This enabled Facebook to use its policies as an excuse to eliminate any developer for any reason whatsoever. .. The ‘full reciprocity’ policy was unworkable as an actual policy but was extremely effective as a ‘get out ofjail free’ card by giving Facebook: (1) an excuse to threaten t0 or actually shut down certain developers unless they purchased 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 funnel t0 developers Without any privacy controls; and (3) cover to continue to induce developers to rely 0n the very APIs Zuckerberg had decided to privatize in 2012 in order t0 gain more leverage. Under cover of the full reciprocity policy, the Growth team (Olivan) illegally accessed non-public information about competitive applications in order t0 monitor their popularity and then directed the Platform team (Vernal) to shut down an application once it became widely used. By early 2013, armed With an official 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.” Opposition to Individual Defendants’ Anti-SLAPP Motion, filed . 10 11 12 13 14 15 16 17 May 17, 2018, at 4-8. 18 19 2o 21 22 23 24 25 26 27 28 “Zuckerberg and the Conspiring Facebook executives requested that Facebook employees actively conceal the decision to restrict data access t0 competitors from internal employees, Developers, and the public. Upon information and belief, the Conspiring Facebook Executives made various layers of management aware of this decision on a need—to—know basis periodically from late 2012 until late 2013 and, at all times, required such employees to actively conceal and/or make only partial disclosures of these material facts.” SAC fl “Beginning 112 (49:20—26); 4AC 1[ 106 (40:21-27). 2013 and coalescing around February 2014, Zuckerberg concocted and mask the deceptive and anticompetitive schemes that Zuckerberg and the other Facebook executives had decided upon and began implementing in 2012. This fabricated narrative centered on the fact that the data being shut off to tens of thousands of smaller software companies was rarely used and/or violated user trust and control over their data. .. These fabricated reasons for shutting off data critical to the functioning of tens of thousands of applications played no role in the actual decisions made by Zuckerberg and ratified and implemented by other Facebook executives.” SAC 1[ 10 (6:11-16); 4AC 1T 10 (6:6-14). in disseminated a completely fabricated narrative to . T. Scaramellino Decl. 9 Case No. CIV533328 “From late 2013 through early 2014, Zuckerberg worked with the Conspiring Facebook Executives and other companies to construct a fraudulent narrative around ‘user trust’ designed t0 mask the true reasons he decided t0 close access to Facebook’s allegedly Open Graph. Upon information and belief, Zuckerberg personally decided t0 announce API at F8 on April 30, 2014 and personally drafted his speech that and fraudulently suppressed material information and revealed only information.” SAC 1] 124 (55:16—22); 4AC ‘fl 118 (46:14-20). the closing of Graph actively, maliciously partial Doug Purdy, aggressively man externally for this bait and switch “Zuckerberg, Vernal and Facebook Director 0f Engineering sought to make Defendant Sukhar the front until late 2013 because he knew the conduct was wrong and malicious. However, in late 2013, Sukhar conceded and from that time on actively ratified, acquiesced in and advanced key components necessary to the implementation 0f the fraudulent and anti-competitive scheme in 2014 and 2015.” SAC fl 85 (3824-9). scheme, which Sukhar resisted \DOOQQ 10 “Once Zuckerberg decided t0 remove the Graph API Data t0 competitors, Zuckerberg of competitors that only he could authorize Data. Upon information and belief, once a Developer personally maintained an ever—growing 11 12 13 14 15 16 list from the Graph API was blacklisted from the Graph API Data, any applications the Developer built could no longer use any 0f the blacklisted data that Facebook purportedly provided publicly 0n fair and neutral terms t0 all Developers. Upon information and belief, blacklisted data often included the Graph API data, including the full friends list, friends permissions and newsfeed APIs — data types that were among the most popular 0n Facebook Platform and upon which 643’s business and many other businesses depended.” SAC 1T 211 (74:7-15); 4AC 1] 205 (64:19-27). blacklisting “The evidence submitted by Plaintiff supporting these claims consists 0f a large volume 17 of internal discussions among Facebook employees regarding Defendants‘ motivations for, and implementation of, various decisions related to access to Facebook’s software 18 APIs, primarily from 2012 to 2015, as well as reliance by Plaintiff on false representations concerning such access and damages suffered by Plaintiff when the 19 promised access was eliminated, including interference in its contractual and prospective relations with customers.” Proposed Order Denying Individual Defendants’ Special Motion to Strike, filed July 9, 2018, at 11. 20 21 “Facebook directed a project t0 22 23 24 25 26 from consumers who had downloaded the Onavo app, a Virtual private network app downloaded by approximately 3O million people, which Facebook purchased in October 20 13. Upon information and belief, before the WSJ article, Facebook failed to disclose that it used Onavo data to measure what people do 0n their phones beyond Facebook’s own suite of apps, including detailed information on things such as which apps people generally are using, how frequently, for how long, and whether more women than men use an app in a specific country. .. Facebook failed to disclose that it used this data for competitive intelligence of numerous apps. .. Facebook’s decision to purchase a large competitive application (WhatsApp) was heavily influenced by Facebook’s ability t0 obtain this non-public information from Onavo. .. Had Facebook fully disclosed this deceptive practice publicly t0 users and Developers when it made public disclosures regarding its purchase of Onavo and its collect certain data . . 27 28 T. Scaramellino Decl. 10 Case N0. CIV533328 update t0 Onavo’s Terms 0f Service, then 643 would not have invested in or continued to invest in building 0 its business.” “Olivan accomplished people who had SAC 227 1] (81 :21-82:1 1); 4AC fl 221 (71 221—7229). by monitoring apps installed on the phones of 30 million Onavo, a virtual private network app that Facebook bought this installed in 2013; Olivan was able to track highly sensitive information about at least 82,000 software applications as a result 0f violating the privacy of these 30 million people.” Opposition to Individual Defendants’ 0 “At o “At Anti-SLAPP Motion, filed May 17, 201 8, at 8, fn. 15. by 2012 or 2013, Facebook collected various content and metadata regarding communications 0n Android Phones without fully disclosing this to Facebook’s users.” SAC 11 228 (82:12-14); 4AC 11 222 (72:10—12). least \OOOQQ 10 11 least by 2013 and continuing at least through 2015, Facebook continued t0 explore and implement ways to track users’ location, to track and read their texts, t0 access and record their microphones on their phones, to track and monitor their usage of competitive apps 0n their phones, and t0 track and monitor their calls. For example, upon information and belief, Facebook expanded its program to access and monitor the microphone on Android phones in 2015 Without securing the explicit consent of all users and while only providing partial disclosures as t0 What information was being obtained and for what purposes it was being used.” SAC 1] 233 (84:10-17); 4AC 1] 227 (73 :23-7422). 12 13 o 14 15 16 “Facebook deliberately ignored the privacy settings of a Facebook user’s friend list in order to improve a certain prominent feature in the Facebook app and website. Upon infomnation and belief, Facebook made partial public disclosures of this practice while withholding material facts that, if disclosed, would have materially qualified Facebook’s public statement.” SAC ‘fl 229 (83:1-6); 4AC 11 223 (72:24-28) (refers directly to an afiicle discussing the People 18 You May Know feature: https://gizmodo.com/facebook—figured- out—mv-familv-secrets-and-it—Wont-tel- 1 797696 1 63). 17 o “In 2013 and 2014 Facebook setting lapse after a period 19 deliberately implemented code to have a user’s privacy of time, requiring the user to go through additional effort in order to have the user’s privacy settings respected. Facebook around made partial disclosures 20 time regarding privacy settings, but did not fully disclose that it had caused certain settings to lapse after a period of time. Upon infoxmation and belief, at all times, 21 the employees involved in this project were acting under the direction and approval 0f this Zuckerbérg, Cox, Lessin and Olivan.” 22 also 24 26 27 28 ‘fl 220 (Zuckerberg 11 231 (83:18—24); 4AC 11 225 (73:9-15); see directly overseeing all of these privacy—Violating requests) 23 25 SAC fl 226; 4AC SAC 13. reality Based on the foregoing, clear to me that Defendants have simply ignored the of the public nature of the alleged crimes and alleged frauds they have committed and their “public apologies” represent, t0 wrong, it is if some degree, an admission that their past practices were not wrongful, and that the governmental and public interest litigations against them including this very litigation has promoted long-needed changes at Facebook. T. Scaramellino Decl. 11 Case No. CIV533328 The emails 14. sent by 643 and its legal team to media and government entities do not contain Facebook’s confidential and highly confidential information. All of the information contained in these emails can be found on the public docket or other public sources on the without limitation, the following public filings: Internet, including, o Discovery Proposal Pursuant t0 Court’s December 13, 2016 Order, filed January 20, 2017, in San Mateo Superior Court (CIV533328) 0 Reply 0 Fourth Amended Complaint, filed Court (CIV533328) o Fifth to Opposition to Motion to Remand, filed February 9, 2017, Northern District of California (3:17—cv-00359-WHA, N.D. Cal.) Amended November 1, in the 2017, in San Mateo Superior Complaint, filed January l2, 2018, in San Mateo Superior Court (CIV533328) May o Opposition to Individual Defendants’ Anti—SLAPP Motion, filed San Mateo Superior Court (CIV533328) 0 Proposed Order Denying Individual Defendants’ Special Motion to July 9, 2018, in San Mateo Superior Court (CW533328) Many 15. of the filings in l7, 2018, in Strike, filed paragraph 14 above have been accessible to the public, the Court and Facebook for a year and up to two and one—half years. At no time until these past few months did Facebook allege any repeated violations of the Protective Order 0r other Court Numerous Orders. other filings just as 01d contain similar information regarding 643’s allegations in the case. Based 0n the above information 16. in public docket for up to two and one-half years, a paragraph 12 that has been available on the member of the public who never had any access whatsoever to Facebook’s confidential files could have drafted and sent the very same emails 643 and I its legal team sent to media and government entities._ declare under penalty of perjury under the laws 0f the State of California that the foregoing is Bronxville, true and correct and that this declaration was entered into on April 12, 2019 in New York. / Thomag’écaramellino T. Scaramellino Decl. 12 Case No. CIV533328