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Hi all,if u want to find out real files of lawsuit against facebook,this is the one. Details about the lawsuit. Social networking website Facebook faces legal action today from the founders of a rival site over claims that their ideas were stolen, in a case that could lead to a change of ownership at the fast growing $10bn (£4.9bn) internet business.At the time, Zuckerberg was a 20-year-old computer science and psychology major well known on campus for launching a website called Facemash that allowed users to rate who was "hotter." The site eventually landed Zuckerberg on probation for unauthorized use of Harvard photos.Narendra and the Winklevoss twins asked Zuckerberg to help them launch ConnectU.In a 2004 interview with the Globe, Zuckerberg said he did about six hours of work on the site but had no business relationship with ConnectU.The founders of the ConnectU site allege that Mark Zuckerberg, Facebook's founder, stole their site's software code while he was working for them as a Harvard student.They have accused Mr Zuckerberg of fraud, copyright infringement and misappropriation of trade secrets, and have demanded to be given ownership of Facebook.ConnectU now has 70,000 users, while Facebook has become a worldwide success with 52 million users, 6 million of whom are based in the UK.One of the nine complaints in the lawsuit alleges that TheFacebook.com uses the very same sourcecode as ConnectU.com. Sourcecode is the internal programming of a site that makes it run properly.When asked how he could tell the programming codes for the two sites were identical, Winklevoss would only say, "Mark had total access to the programming guts of our website, the sourcecode."Before turning to the courts, ConnectU founders brought their complaint to Harvard's Administrative Board, a panel similar to the Honor Committee at Princeton. The board ruled that the matter was out of their jurisdiction.
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UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS
CONNECTU, INC.,Plaintiff,
v.
FACEBOOK, INC., MARKZUCKERBERG, EDUARDO SAVERIN,DUSTIN MOSKOVITZ, ANDREWMCCOLLUM, CHRISTOPHER HUGHES,and THEFACEBOOK, LLC,
Defendants
)))))))))
Civil Action No.:1:07-CV-10593-DPW
Related Action No.1:04-CV-11923-DPW
BEFORE: THE HONORABLE DOUGLAS P. WOODLOCK
MOTION HEARING
John Joseph Moakley United States CourthouseCourtroom No. 1
One Courthouse WayBoston, MA 02210
Friday, November 30, 200712:35 p.m.
Brenda K. Hancock, RMR, CRROfficial Court Reporter
John Joseph Moakley United States CourthouseOne Courthouse WayBoston, MA 02210(617)439-3214
Mechanical Steno - Transcript by Computer
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APPEARANCES:
Plaintiff ConnectU, Inc.Represented by:
Daniel P. Tighe, Esq.GRIESINGER, TIGHE & MAFFEI, LLP176 Federal StreetBoston, MA 02110
John F. Hornick, Esq. (Appearance via telephone)Margaret A. Esquenet, Esq. (Appearance via telephone)Meredith H. Schoenfeld, Esq (Appearance via telephone)FINNEGAN, HENDERSON, FARABOW, GARRETT& DUNNER, LLP901 New York Avenue N. W.Washington, DC 20001
Peter E. Calamari, Esq. (Appearance via telephone)Adam Wolfson, Esq. (Appearance via telephone)Renee Bea, Esq. (Appearance via telephone)QUINN EMANUEL URQUHART OLIVER &HEDGES LLP51 Madison Avenue22nd FloorNew York, NY 10010
DefendantsFacebook, Inc.ThefacebookMark ZuckerbergAndrew McCollumChristopher Hughes
Represented by:
I. Neel Chatterjee, Esq.ORRICK, HERRINGTON & SUTCLIFFE LLP1000 Marsh RoadMenlo Park, CA 94025
(Appearances Continued next page)
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Steven M. Bauer, Esq.Mark Batten, Esq. (Appearance via telephone after recess)PROSKAUER ROSE LLPOne International Place22nd FloorBoston, MA 02110
DefendantEduardo SaverinRepresented by:
Nathan E Shafroth, Esq. (Appearance via telephone)HELLER EHRMAN LLP333 Bush StreetSan Francisco, CA 94104
Robert B. Hawk, Esq. (Appearance via telephone)HELLER EHRMAN LLP275 Middlefield RoadMenlo Park, CA 94025
Daniel K. Hampton, Esq.HOLLAND & KNIGHT LLP10 St. James AvenueBoston, MA 02116
I. Neel Chatterjee, Esq.ORRICK, HERRINGTON & SUTCLIFFE LLP1000 Marsh RoadMenlo Park, CA 94025
Steven M. BauerPROSKAUER ROSE LLPOne International Place22nd FloorBoston, MA 02110
(Appearances continued next page)
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02138Represented by:
Elizabeth Ritvo, Esq.BROWN RUDNICKOne Financial CenterBoston, MA 02111
Robert P. Balin, Esq. (Appearance via telephone)Laura Handman, Esq.Amber Husbands, Esq.DAVIS, WRIGHT & TREMAINE1633 BroadwayNew York, NY 10019-6708
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P R O C E E D I N G S:
CLERK LOVETT: The Honorable Court is now in session.
You may be seated. Calling the case of Civil Action 07-10593
Civil Action 04-11923 ConnectU, Inc. v. Facebook, Inc., et al.
THE COURT: Well, this is Judge Woodlock. I have a
roll call that's been provided here, and in the course of the
proceedings, I think Mr. Lovett indicated to counsel who were
appearing by phone that they should identify themselves each
time they speak so that the court reporter will be able to get
the names properly. I guess, Mr. Chatterjee, I'd like to hear
from you first on the question of what I guess I'd have to call
requests for a prior restraint, and I want to hear what your
views are with respect to that at the outset.
MR. CHATTERJEE: I'm happy to do so, your Honor, and
thank you for giving us this hearing on an expedited basis.
The requests that we are placing to the Court is to restrain
specific documents that have been posted online that are
subject to the Court's protective order. This is not a request
to restrain the commentary and the articles that have been
written about them. In a perfect world, we want to try and
stop that commentary, but we are really trying to protect our
confidential information that has gotten out. In our view, the
law is fairly clear, the Bartnicki case, I can never pronounce
it right, in drawing a distinction as to the scope of First
Amendment protection between what is commentary and what are
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things like this that are documents and our property. The
ZYPREXA case, that was actually cited to in papers that were
just submitted to you by the magazine, actually talks about
that very distinction.
THE COURT: I'll have to say that I have not seen the
magazine submission as yet; it just hasn't been brought to my
attention.
MR. CHATTERJEE: Okay, your Honor, I'm happy to
provide you with the citations. I'd like to start with one key
fact that I think is important, and I'll just read to you an
excerpt from their submission that I think their argument
pretty much hangs on, and it's the following statement on page
4 of their brief. All of the --
THE COURT: Just a moment. I'm glad to listen to a
dramatic reading, but I think I'd like to follow along. Is
there a copy of the document here?
MR. CHATTERJEE: Yes, your Honor, I believe.
MS. RITVO: Excuse me. This was hand-delivered to the
Court on behalf of the magazine.
THE COURT: Okay. Go ahead. I now have it.
MR. CHATTERJEE: Your Honor, if you look at page 4,
the first complete paragraph, it states, "All of the documents
were lawfully obtained by Luke O'Brien, a freelance journalist
and the author of the article in question from the clerk's
office of the United States Court of Appeals for the First
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Circuit."
Your Honor, this is one of approximately 11 exhibits
that were submitted to the First Circuit Court of Appeals,
three of which are under seal. Each one --
THE COURT: Let me just pause for a moment. Are all
of the documents that are the subject of internet posting from
the Court of Appeals appeal?
MR. CHATTERJEE: No, your Honor, and that was exactly
the point I was going to make. Each one of the documents in
the appendix to the First Circuit Court of Appeals has a number
at the very bottom pursuant to the First Circuit Rules. Not a
single one of the documents that's posted online has that
number on it. In addition, two of the documents which are
posted online, the online diary of Mark Zuckerberg and the cash
flow statement of Facebook from about a year and a few months
ago are, as far as we know, and we're still, we're rapidly
going through this to confirm it, because we only received
notice of this position recently, is not in the appellate
record at all. So, that premise that their argument hangs on,
what they have said they would submit in a declaration under
oath from Mr. O'Brien, it's false. Your Honor, we have
additional evidence to support that.
The Harvard application for Mark Zuckerberg that is in
the appellate record, as well as is attached to various court
files, that document that was submitted did not have certain
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handwritten notes on the side of the document, and those
handwritten notes were on the online posting that came up.
THE COURT: Do you know what iteration of that
document does have handwritten notes on it?
MR. CHATTERJEE: We had searched our production, your
Honor, and we can't find it. A new version of that document
was posted on the 02138 website with those handwritten notes
removed. We have looked through other documents that have been
produced with handwriting on them. We found some editorial
changes to Dyvia Narendra's deposition. At the end of the
deposition, as you know, your Honor, you can always make
certain changes if you have problems with them.
THE COURT: Right.
MR. CHATTERJEE: We have submitted that handwriting,
as well as the handwriting on the side of the notes to the
Harvard application, to a handwriting expert, and, obviously,
we did not have a whole lot of time for this and the sample
size is relatively small, but under the accepted standards for
handwriting analysis, between a ranking of 1 being a definite
match and 9 being no match, the expert is telling us it's
roughly a 3, which is a probable match.
THE COURT: Who is the expert?
MR. CHATTERJEE: The expert's name is Bob Culman (ph),
Robert Culman, and he's a well-recognized expert.
THE COURT: Is he someone on the West Coast? I'm not
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familiar with him.
MR. CHATTERJEE: He's in the Midwest, your Honor, and
he's someone that our firm has worked with in the past. In
addition, the online diary that has been posted for Mark
Zuckerberg, the document that's posted is in a file format
called a pdf file. When you download a pdf file, you can pull
up certain information that isn't disclosed on the page called
metadata. The metadata is historical information about that
document. What that document reveals, the metadata document,
is it reveals that someone named Lindsey B, we believe that's
an employee of 02138, received the document, received a dot doc
file, which is a Microsoft Word file format. Now, that's
significance, because if they got it from a court file, it
wouldn't be in an electronic format, it would be in a hard copy
format. It was then converted to pdf, which is the file format
that is available online, and then posted. Now, that
electronic data came from somewhere, and it didn't come from
the Court record.
THE COURT: Do we know that for sure? Frequently,
materials that are submitted to the Court, even under seal, are
put in the pdf format at some point.
MR. CHATTERJEE: Yes, your Honor, that is true,
however, these documents from the online journal are -- the
only place we could find in the court record where they were
submitted was with respect to the first amended complaint, and
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we made a specific request to your Honor, which is currently
under advisement, to keep that document under seal. It has not
yet been put online and is not currently publicly available.
One other important fact about that particular document, the
dot doc metadata indicates that the file was created on the
first -- no, I'm sorry, on the 10th of January, 2006. We
produced the document on the 7th of January, 2006, three days
earlier. All of this information suggests to us that what
they've said in these papers, at least, is not an accurate
statement, and the information came from someplace else.
THE COURT: Well, let me see if I can break that down
a bit. Let me put to one side the submission made by 02138 and
focus on the potential sources as more fully developed by your
commentary. Are you suggesting that it comes from ConnectU?
MR. CHATTERJEE: Your Honor, from what we've learned
in the past 24 hours through this analysis, it certainly seems
like at least some of it did.
THE COURT: All right. Now, let me deal with that
aspect of it, just for a moment. Is not the way to deal with
that to pursue a question of contempt against a party with a
view toward developing a schedule to pursue it? I'll put to
one side the remedy, for a moment, because if it comes from
them, irrespective of whether they pass it on to someone who
disseminates it, they are directly within the scope of the
Court's power to exercise control and sanction, if there's a
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violation of the Court's Orders.
MR. CHATTERJEE: Yes, your Honor, that is true.
THE COURT: All right. Because there are two aspects
of this that I'm interested in that are pressed, well, not
altogether pressed by it, but that are part of this. The first
aspect of it is who did it, and the second part is whether or
not there is any remedy for it. Now, turning to the who did it
part of it, it seems to me that further factual development has
to be undertaken. I recognize that you brought it along or
wanted to bring it along as promptly as possible, nevertheless,
I'm confronted with somewhat conflicting factual recitations, I
suppose. I have a particular interest in making sure that I
try to get this right, and because it's a very serious
matter --
MR. CHATTERJEE: It is, your Honor.
THE COURT: -- if one of the parties in this case has
violated the protective order. I also want to understand what
that of the materials that have been submitted to me in
connection with the motion, pending motion to dismiss and the
motion for summary judgment, are included in the universe of
materials that are posted on the web. Any?
MR. CHATTERJEE: Yes, your Honor, and I don't remember
the exact exhibit numbers, but the online diary of Mark
Zuckerberg is one of the attachments.
THE COURT: If I could interrupt, that's one in which
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the parties continue to believe or at least have submitted to
me that that should remain under seal.
MR. CHATTERJEE: Yes, your Honor. I don't remember
which of the other documents that are up on the web are
attached to the first amended complaint. I don't believe the
other ones are, but I can't say for certain.
THE COURT: Okay. Now, are all of the -- you said
there were two documents, two or three documents that aren't in
the appellate record; is that right?
MR. CHATTERJEE: Yes, your Honor. This was the first
time we heard about it, about an hour and a half ago, but from
our review and our recollection, Thefacebook cash flow
statement and the online diary were not part of the appellate
record.
MR. HORNICK: Your Honor, this is John Hornick.
THE COURT: Yes.
MR. HORNICK: I'm not sure that that's accurate. I
don't know the answer for sure, but I do know that, and we only
saw this brief from 02138 about an hour ago ourselves, and
we're not aware that the document had come from the First
Circuit, but since that time, we've considered this issue that
Neel is raising now about where -- whether all of these
documents were in the appellate record, and Thefacebook had a
motion pending in the First Circuit to dismiss the appeal as
moot, and that motion involved the first amended complaint, and
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we do not know at the moment whether the first amended
complaint was an exhibit or whether the exhibits to it were
exhibits to that motion, but it's entirely possible that the
First Circuit may have looked at the first amended complaint in
the record.
THE COURT: So, is the suggestion, Mr. Hornick, that
they have been somehow incorporated by reference in the First
Circuit --
MR. HORNICK: Well, possibly, your Honor. All I'm
saying is that it's not clear that those documents were not in
any way part of the appellate record or in the appellate
court's records.
THE COURT: All right.
MR. CHATTERJEE: And, your Honor, just to speak to
that, Mr. Hornick is correct, we did file a motion to dismiss
the appeal as moot. My recollection is that we did not attach
the first amended complaint; rather, we referred to it in a
request for judicial notice, but I just, I can't remember for
certain.
THE COURT: There is one other dimension I just want
to throw out now. Mr. Lovett, my courtroom deputy, in paging
through quickly, noticed that for at least one of the documents
there's a docket stamp, which indicates that at some point that
document was in the file in this court, the copy is something
that comes out of the court itself. Now, it could have gone to
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the First Circuit, it could have come, frankly, from the
clerk's office here, since we're now taking names rather than
making a determination of who did it.
MR. CHATTERJEE: Your Honor, it is true that we have
been able to identify documents. These documents have been
submitted to a court or were sought to be submitted through an
evidentiary hearing where it was put on an exhibit list and not
actually entered at various points in time. Before we came to
the Court, we actually asked, we asked whether the information
that we had correlated remained under seal today and was not
publicly accessible, and we received confirmation that, in
fact, it was still confidential.
THE COURT: Well, the submission that you've just
brought my to my attention about the source for 02138, at least
their recitation of the source and the offer to provide a
declaration, it says it comes from the appeals court.
MR. BALIN: Your Honor, this is Robert Balin, from
Davis Wright Tremaine, the attorney for 01238.
THE COURT: Right.
MR. BALIN: And I don't want to interrupt, but I think
there may be, at least possibly, a misunderstanding, at least,
when we've come in, we came in last night about 6:00 when our
predecessor counsel realized he had a conflict.
THE COURT: All right.
MR. BALIN: We have tried to ascertain the facts as
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best as counsel can, and our understanding is that the reporter
here, an issue went to the District Court, there were documents
missing from the file there, he was sent down the hallway to
the First Circuit Clerk's Office. He filled out a form, a
request card to ask for the documents and the clerk brought
him, she wheeled out, I think he said it was three boxes or
thereabouts, many, many documents. This was not an appeal
appendix. It appears that he got the District Court documents,
the records from the District Courts themselves, that somehow
the appeals clerk had provided to him.
THE COURT: Mr. Balin, let me just pause for a moment.
We're all beginning to move in areas in which I think we're not
fully informed, and I'm not fully informed, but maybe I can add
a little bit to this. There is a difference between a record
appendix and the record itself, and the practice has been, in
the First Circuit, at least, in certain cases, to require the
replication of documents in the files of the District Court for
submission to the First Circuit. So, it's possible that the
First Circuit would have copies of originals in the -- from the
District Court that would be outside of the record appendix
itself. That's not inconsistent with what you're saying, but,
perhaps, provides some greater degree of nuance to the
discussion.
MR. BALIN: Sure, and, your Honor, I don't want to
interrupt counsel's argument. I will --
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THE COURT: But the short of it is, Mr. O'Brien -- is
it Mr. O'Brien?
MR. BALIN: Yes.
THE COURT: His recollection is that he got these
documents from documents that were provided to him pursuant to
a request by the Clerk's Office in the Court of Appeals.
MR. BALIN: Correct, that is the recollection he has
communicated.
THE COURT: And is that the universe of the documents
that are up on the web now?
MR. BALIN: I believe so. There are, I believe, eight
documents that were posted on the web, only four of which they
are complaining about, and I believe one of them is this online
diary, at least we've been informed, and I'll stand corrected
if I'm wrong, that it was posted by Mr. Zuckerberg at some
earlier time online, but that's correct, there are four
documents that are at issue.
THE COURT: When you say it was posted by Mr.
Zuckerberg online, you mean while he was an undergraduate?
MR. BALIN: I believe so, I believe years ago, yes.
THE COURT: Go ahead, Mr. Chatterjee.
MR. CHATTERJEE: Your Honor, and I think your Honor is
right to point out that there are, fundamentally, two separate
sets of issues. One is the investigation about how these
documents became public. That's an issue that we would like
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your Honor to give us some guidance on how we can investigate
it, but the urgent issue, and the reason that really drove us
to come here, is to stop further dissemination of these
documents and to stop the distribution.
THE COURT: Let me understand specifically the
documents that you're asking to, the specific documents that
you want to have taken down.
MR. CHATTERJEE: Yes, your Honor. The specific
documents that we would like to have taken down are the
documents that we have attached to my declaration on the
request.
THE COURT: I have it.
MR. CHATTERJEE: Exhibit 6 -- I'm sorry -- Exhibit 5
through 8.
THE COURT: 5, 6, 7 and 8.
MR. CHATTERJEE: Correct.
THE COURT: Okay. Well, let me understand, Mr. Balin,
as a matter of not of order but as a matter of prudence or
proportion, is 02138 prepared to take those down?
MR. BALIN: I would have to respectfully say no, your
Honor. When we were first informed about this from our
predecessor counsel, by Facebook's counsel, we were informed
that Mr. Zuckerberg's parents' address and phone number were on
one or more of the documents and would we redact that, even
though that's available in the White Pages and online, but of
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course we will. They also indicated that there was a Social
Security number. As soon as we heard that, of course, we
redacted that as well.
We do believe that we do have a Constitutional right
to publish the information that's in our possession. Again, I
don't want to interrupt counsel's argument, I do want to make
some points about it, and I think your Honor is exactly on the
right point in terms of what the case law says. There is a --
THE COURT: Well, I'm going to try to inform myself
some more about the case law in this area.
MR. BALIN: Sure.
THE COURT: I really want to focus on the specific
areas of actual dispute.
MR. BALIN: I always try to agree with judges, your
Honor, but this is one case that, at least my professional
obligation to my client, requires that I have to respectfully
decline to do that.
THE COURT: All right. Now, Mr. Chatterjee, you've
identified the four documents. Are there particular sections
of those four documents that are of particular concern, and if
you can articulate them, because this an open proceeding, if
you can articulate the concern in a general sort of way, I just
want to be sure that the parties are not simply taking
categorical approaches to the issues here.
MR. CHATTERJEE: Yes, I'm happy to do so, your
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Honor --
THE COURT: Okay.
MR. CHATTERJEE: -- just so we're clear. So, exhibits
5, 7, and 8, all fairly short documents --
THE COURT: Right.
MR. CHATTERJEE: -- and we believe that those
documents in their entirety should be sealed. Exhibit 6 is a
more complicated --
THE COURT: Well, let me understand why -- let's start
with 5. This is a document submitted to the Harvard
Administrative Board, is that it?
MR. CHATTERJEE: No. Exhibit 5 is an e-mail between
Mark Elliot Zuckerberg and John Patrick Walsh, and, your Honor,
if I do get into the substance of this, I may ask the Court to
seal it.
THE COURT: Well, try not to --
MR. CHATTERJEE: Thank you.
THE COURT: -- because I'm going to resist the
temptation until I'm forced to, but who is Mr. Walsh?
MR. CHATTERJEE: Your Honor, I've been trying to learn
who Mr. Walsh is. I have not yet.
THE COURT: He's not someone who is, himself,
affiliated with the Administrative Board at Harvard?
MR. CHATTERJEE: I am not sure, as I stand here today.
MR. HORNICK: Your Honor, this is John Hornick. I can
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answer that question.
THE COURT: Okay.
MR. HORNICK: Mr. Walsh, as I understand it, was Mr.
Zuckerberg's advisor of some type at Harvard, and when the
facemash problem arose at Harvard, Mr. Walsh asked Mr.
Zuckerberg to write up the facts as he wanted to present them,
and then Mr. Walsh submitted this document to the Harvard Ad.
Board.
THE COURT: All right. So, is Mr. Walsh a member --
MR. HORNICK: He's the house tutor, your Honor.
THE COURT: Okay, all right. So, this would have been
in the Harvard Administrative Board file of some sort.
MR. CHATTERJEE: Yes, your Honor. I believe there's a
stamp on it that says that.
THE COURT: Right.
MR. CHATTERJEE: But this is a matter of private
concern to Mr. Zuckerberg and things that he was doing in his
educational experience there. We believe that that's a
document that's a private concern, and it's something that he's
entitled to protection on.
THE COURT: Well, let me go through all of these so
we've got an understanding.
MR. CHATTERJEE: I'm going to skip over Exhibit 6 for
the moment, because it's a fairly voluminous document.
THE COURT: All right.
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MR. CHATTERJEE: Exhibit 7 is a document that is
Facebook's statement of cash flows. This is among the most
confidential information that companies have, which is, unless,
of course, they're publicly traded companies, which involves
kind of their core financial numbers, how they're doing, what
they're doing, and it is a very confidential document to the
company.
THE COURT: Right, but we're dealing with one here
that is 2005, two years old.
MR. CHATTERJEE: Yes, your Honor.
THE COURT: Okay.
MR. CHATTERJEE: It is a couple of years old, but it
still remains a relevant and a confidential document to the
company as far as how it's been performing over the past
several years.
THE COURT: All right.
MR. CHATTERJEE: The next document, which is Exhibit
8, is an entry to an online diary that Mark Zuckerberg kept.
Again, this is a matter of private concern reflecting his own
private thoughts.
THE COURT: Let me understand what the distribution,
if any, of this has been, this Exhibit 8.
MR. CHATTERJEE: The distribution by whom?
THE COURT: By Mr. Zuckerberg or anyone else. Was it
submitted in connection with the Harvard Administrative Board
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proceedings?
MR. CHATTERJEE: No.
THE COURT: So, this is a document that was taken off
of Mr. Zuckerberg's computers in some way?
MR. CHATTERJEE: This was a document that we took off
of Mr. Zuckerberg's computers; it's actually an excerpt of a
larger document.
THE COURT: And this was produced during discovery?
MR. CHATTERJEE: It was produced during discovery.
THE COURT: And when I see the "January 10, 2006"
reference, that's the reference to materials generated through
a pdf document after your disclosure; is that it?
MR. CHATTERJEE: You're right, yes, your Honor. What
we did is, we produced this document on a CD on January 7th.
The CD was marked "Confidential," and we produced that on
January 7th, 2006, and then this was in a dot doc format and,
presumably, it was loaded into a litigation database or
something, which put the confidential marking on the bottom.
THE COURT: And this is the only one of the four
documents that is, see if I have this right, that has not been
submitted in connection with any of the filings in this case;
is that right?
MR. CHATTERJEE: No, your Honor. This document was
attached to the first amended complaint. We sought to have it
put under seal, and that issue is currently under advisement.
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THE COURT: Okay, that's the one. All right.
MR. CHATTERJEE: Your Honor, I'm not sure, we're still
confirming it, but I don't believe that Exhibit 7, the cash
flow statement, I don't recall this being attached to the first
amended complaint or being part of the appellate record.
THE COURT: All right. Mr. Hornick, do you have any
recollection about that? Nobody's being held to these
recollections, but I just want to get an idea.
MR. HORNICK: Your Honor, so far we have not been able
to find out in the record where the cash flow statement is.
I'm not saying it's not there; we just don't specifically
recall, and it's an awfully big record.
THE COURT: Right. Okay. Then, turning, now, to the
Exhibit 6, which is an excerpt of a deposition.
MR. CHATTERJEE: That's correct, your Honor.
THE COURT: I guess I want to focus, I wanted to focus
a bit more, because in the papers, which I understand were not
as complete as you would want when submitted, there was a
suggestion that this held up a third party, you could call it
an innocent third party, but at least a third party that's not
been drawn into this case into some kind of shame and
disrepute. Is that where this is -- is that the document?
MR. CHATTERJEE: That's our primary objection to this,
your Honor, yes.
THE COURT: This particular document?
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MR. CHATTERJEE: Yes, this particular document.
THE COURT: Has the person whose name has been brought
up been notified about this?
MR. CHATTERJEE: Yes. If I have bags under my eyes
right now, it's because I took a red eye out here, and I've
been on the phone dealing with him.
THE COURT: Okay. Well, let me go back more
specifically, having been informed about this. Mr. Balin, I
understand your client's view about their rights to post
materials like that that come into their possession under
whatever circumstances. The question for me is, and I put it
as a prudential one --
MR. BALIN: Yes, your Honor.
THE COURT: -- is whether there is a mechanism
voluntary to permit whatever harms arise to particularly third
parties here to be mitigated or ameliorated.
MS. RITVO: Your Honor.
THE COURT: Yes.
MS. RITVO: Before Mr. Balin responds, I'm local
counsel for 02138.
THE COURT: Right.
MS.RITVA: He is with Laura Handman, who is a member
of the Mass Bar, and just by way of housekeeping, Mr. Balin is
not a member, but just that he has permission to speak.
THE COURT: I'll hear him as well.
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MS. RITVO: Thank you.
THE COURT: But, Mr. Balin, and maybe we're going to
have to sort out at some point whether there's a formal
appearance in the case and that sort of thing --
MS.RITVA: Yes.
THE COURT: -- and I'll get to that at some point, but
I'll hear you on, and have been, and I will continue to hear
you on these matters.
MR. BALIN: Thank you, your Honor, and in short
answer, I will, of course, raise with my client the issue of
whether in their own editorial discretion and judgment they
would consider redacting the name, and I don't know that, I
believe that it is one person's name. Are you concerned about
two people's names?
THE COURT: Well, I'm not sure whose names I'm
concerned about. What I know, you know, for instance, I'll
look at the first page of the --
MR. BALIN: I believe, your Honor, at least if I
understand what the concern is, it's testimony given on pages
216 to 219 of the deposition transcript. Is that right, Mr.
Chatterjee?
MR. CHATTERJEE: Your Honor, if I could have a moment
to just confirm that?
THE COURT: Yes.
(Pause)
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MR. CHATTERJEE: Your Honor, I would want to check the
other pages to make sure, but that appears to be correct.
THE COURT: All right. I guess, so, we'll focus on
that one, and I would ask you, Mr. Balin, to consult with your
client with respect to that --
MR. BALIN: I absolutely will, your Honor.
THE COURT: -- further, so that we can understand
that. Apart from those, that third party, Mr. Chatterjee, is
there any other third party whose name got drawn into this
litigation but is not, whose activities are not directly
relevant?
MR. CHATTERJEE: Your Honor, there are probably a few,
but they're not as, in all candor, I don't think that they're
as sensitive to focus on.
THE COURT: Okay. Now, let's, then, turn to Mr.
Zuckerberg's submission to Harvard or, I should say, to his
advisor, Mr. Walsh. I've done a quick read of this. It seems
to be, essentially, an exculpatory or meant to be an
exculpatory statement on his part, obviously submitted under
circumstances that were meant to be confidential, but appear
not now to be confidential, but what is the salient problem
with this, to the degree that I'm going to be drawn into making
balancing judgments? I'm not sure I am, but at least I want to
understand what the balancing issue I should have in mind is
for this.
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MR. CHATTERJEE: Your Honor, if I could just confer?
THE COURT: Sure.
MR. CHATTERJEE: Mr. Zuckerberg also has his
individual counsel here today. I'm representing everybody. If
I could just confer with him for just a moment?
THE COURT: Okay.
(Pause)
MR. CHATTERJEE: Your Honor, I'm sorry about the
delay; I just wanted to talk to Mr. Zuckerberg's private
counsel as well.
THE COURT: Right.
MR. CHATTERJEE: Our feeling about this is that is a
private dialogue between Mr. Zuckerberg and others. I
understand that many of the issues in this case have come to a
public light and are being proceeded in a public forum. The
fundamental concern with respect to this document, however, is
really the slippery-slope issue, which is at what point do his
private conversations start becoming public. At the end of the
day, your Honor, from our perspective, some of the other
documents, some of the things we've already talked about, are
of far greater importance, and as long as we don't believe
we're walking down that slippery slope, I don't think we're
going to have a major objection on this document.
THE COURT: All right. Now, let me, then, skip over
the financial document, Exhibit 7, and go to the online diary,
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Exhibit 8. My quick reading, as you've been consulting, I've
been reading, of the submission from 02138 suggests that this
document is already on the web. There is a citation to a cite
Scribd -- it's footnote number 1, but jumping over to page 4,
S-c-r-i-b-d dot com.
MR. CHATTERJEE: Yes, your Honor. We looked at that
website immediately when we saw this. It appears to be, to
have just downloaded this and reposted it, and, again, the
metadata on it indicates that it was posted today. So, it's
not something that pre-existed, it's the reason why we're here,
which is the potential proliferation.
THE COURT: All right. So, Mr. Balin, do you know, or
I don't know who the scrivner was of the brief that was
submitted, but do you know the story on this, whether or not
it's on the web because it's been taken from the 02138 cite?
MR. BALIN: I don't know the answer, your Honor. I do
assume that it came from our site and, like all of these
documents, are now, given the nature of the internet, you know,
the cat is out of the bag, and they are being posted on other
sites as well --
THE COURT: Right.
MR. BALIN: -- so that I don't have any knowledge that
it would have come from any other site than from ours
originally, your Honor.
THE COURT: Okay. So, when it's argued that Mr.
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Zuckerberg's online diary's online it's --
MR. BALIN: Oh, I was making a different point, your
Honor, and I apologize if I wasn't clear enough. I understand,
and I could be wrong, but at least I was led to believe that
the diary that they call the private diary at one time in the
past, not this website, at one time in the past, that Mr.
Zuckerberg had posted it in a manner in which others could see
it.
THE COURT: All right. Do you have any knowledge
about that?
MR. CHATTERJEE: Your Honor, we've been trying to
investigate that, and we cannot say for certain. I do want to
make one observation related to the --
THE COURT: You can't say for certain, in the sense
that you haven't exhausted all the sources that you'd want to
consult before making a categorical statement about it; is that
it?
MR. CHATTERJEE: Correct, correct, your Honor, and
also one of the other challenges that I suspect we're going to
have is this was quite a while ago, some things were put
online, some things weren't, it's not clear exactly how they'll
play out, but we are trying to investigate that as quickly as
possible.
MR. HORNICK: Your Honor, this is John Hornick. It's
my understanding that the journal was posted on the web back
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around the time that it was written, and then it was quoted in
the Harvard Crimson article or quoted in a Harvard Crimson
article, and I can give you the web address to that, but it's
kind of long.
THE COURT: Well, I guess I'm really trying to figure
out what the dimensions of this are. Let me just step back a
bit. Mr. Balin, if this is the first disclosure of a private
diary like this, and your assumption is incorrect, assuming all
of that, that your assumption is incorrect, that it was at some
time at some point posted, would your client have an objection
to -- I won't ask the full question or the ultimate question,
but is this not something that you'd want to consult with your
client about?
MR. BALIN: I think on this, your Honor, our legal
conclusion would be the same, that --
THE COURT: Well, I'm not so much concerned about the
legal conclusion. The first order of business is to be
differential to editorial decisions.
MR. BALIN: Right. As the other suggestions, your
Honor, is made, of course I will --
THE COURT: Well, let me just take a look, let me
look, for instance, or point you to what is essentially the
first line --
MR. BALIN: Sure.
THE COURT: -- at 8:13 p.m. I assume that the person
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referenced there is a human being, not an avatar, and that, you
know, the reference is a demeaning one, and I'm not sure that
that individual ought to be held up to shame and disrepute
simply because, for whatever reasons, documents that were
required to be disclosed in litigation somehow made their way
into -- are beyond the confines of those who are directly
subject to the Court control. That's the kind of thing that
I'm concerned about in this. It's somewhat similar to that
portion of the deposition transcript.
MR. BALIN: Your Honor, I hear you, and I hear you
talking to the editorial discretion as opposed to --
THE COURT: Right. At this stage, that's what I'm
doing.
MR. BALIN: Yes, and I surely, of course, will raise
your concern with my client.
THE COURT: I am concerned about specific individuals
being identified here whose only role is to have been
splattered by the blood at the traffic intersection, so I'd ask
you to just consult with your client whether or not they would
consider a redaction of some or all of Exhibit 8. Now, let's
go back to Exhibit 7, the cash flow issue. The extraordinary
growth of Facebook here has really made this more or less an
old thing, isn't it? It's not the new, new thing.
MR. CHATTERJEE: Your Honor, I don't think this is an
old thing per se. This document has considerably more detail
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than what you might read in the newspapers. It talks about
investing activities, it talks about financing activities, it
talks about how much money people pay for stock issuance, I
mean, you know, the various issues associated with the stock
issuance.
THE COURT: Well, but, you know --
MR. CHATTERJEE: This is not publicly available
information.
THE COURT: I understand it's not publicly available
now, or I guess it's not publicly available now. On the other
hand, this is the kind of thing that a public company would
have to make available. It's the kind of thing that would be
made available to potential investors, although I suspect it
would be updated substantially. I guess I want to understand
what the competitive, I'll put it in that form, what the
competitive problems are with the disclosure of a statement of
cash flows from two years ago for this company.
MR. CHATTERJEE: Your Honor, part of what happens with
public companies is evaluation of their growth and valuation of
the company. It's a very private thing when you're a start-up
and when you're seeking funding. Now, this information --
THE COURT: Well, but, let's just talk practically
about that --
MR. CHATTERJEE: Sure.
THE COURT: -- and I'm sure you're much more familiar
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with current practices than I on it, but I don't know any
venture capitalists who wouldn't, if thinking about investing,
ask for this information and a great deal and more and get it.
MR. CHATTERJEE: They would get it pursuant to a
nondisclosure agreement, your Honor.
THE COURT: Yes, but they'd get it, but nondisclosure
to what end, and that's really what I'm getting at, what is the
competitive problem with this?
MR. CHATTERJEE: Because it tells competitors, other
potential suitors, other people that may be competing for the
same funds, there is a lot of competition in the marketplace
with respect to Facebook. There are companies --
THE COURT: I'm pressing you, because I'll concede the
generality, but that begins the analysis. There isn't, you
know, my quick reading of this doesn't suggest to me anything
that is of anything other than historical interest.
MR. CHATTERJEE: Your Honor, if you look at the very
first line, there is a statement that says "Net Income," and it
has a number next to it.
THE COURT: Right.
MR. CHATTERJEE: That number is causing Facebook
concern that it's out in the marketplace, whether it's making
money, how much money it's making and what it's doing.
THE COURT: Was making money, was making money between
January and December of 2005. That's what I guess is what I'm
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getting at.
MR. CHATTERJEE: But its financial performance on how
it's adjusting its business models is considered competitively
sensitive information, and if they change their behavior and it
affects their previous financial positions and their financial
position today, it's something that Facebook doesn't think
should be out in the marketplace, because it would enable a
competitor to know what changes they needed to make.
MR. HORNICK: Your Honor, this is John Hornick --
THE COURT: Just a moment, Mr. Hornick.
MR. HORNICK: I just found this document in the
record.
THE COURT: Okay, go ahead.
MR. HORNICK: It's Exhibit 17 to ConnectU's Motion For
Contempt that was filed in the old case. We're looking for the
docket number, your Honor.
THE COURT: Right.
MR. HORNICK: We're not sure yet.
THE COURT: Let me step back from this. Are all these
from the '04 case, all of these documents? Is that where you
think they came from?
MR. CHATTERJEE: Your Honor --
MR. HORNICK: Except for the online journal, I believe
the first time that was in the record was as an exhibit to the
first amended complaint, but I believe everything else was in
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the old case.
THE COURT: Okay.
MR. HORNICK: And the docket number is 177.
THE COURT: 177?
MR. HORNICK: Yes, in the old case, 177.
THE COURT: All right. What was its relevance, if you
can recall in that case, because I sure can't in that case?
MR. HORNICK: Well, the motion for contempt dealt
with, Judge Collings issued an order that allowed ConnectU to
do discovery on the subject of Facebook's valuation, and there
was a meet and confer, and Facebook didn't want to provide the
discovery, so ConnectU filed a motion for contempt, and the
subject of the motion for contempt was the valuation of
Facebook. So, I can't tell you exactly why this was an
exhibit, but this exhibit relates to the valuation of Facebook
in 2005.
THE COURT: I see, okay.
MR. CHATTERJEE: Your Honor, if I may add to Mr.
Hornick's remarks, part of that motion was about
confidentiality and disclosure of investor-related information,
financing information and the like. Judge Collings very
substantially curtailed what could be publicly viewed and what
could not.
THE COURT: Right, and when was he acting on this?
What was the time period for it?
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MR. HORNICK: It was in the spring of 2006, your
Honor.
THE COURT: Okay. Shortly after the end date for this
statement?
MR. HORNICK: Yes.
THE COURT: And with respect to this, I guess I
understand the source now, or at least the source of the court.
Well, let me do two things with respect to the remedy aspect of
this. I'll ask Mr. Balin to consult, again, with his clients
with a view toward whether or not voluntarily they'll exercise
what I'll call editorial discretion in the materials that have
been posted on the web. I've focused particularly on the
concern that I have more generally for third parties who I will
call innocent but, perhaps, better to be called strangers to
this litigation unfairly having their names drawn in,
particularly in the context in which their activities might be
held up to shame and disrepute. I would ask you to think about
the question of the competitive advantage or disadvantage and
consult with your clients with respect to that as well, and
what I would like to do is reconvene at some prompt time, say,
2 hours from now. Is that enough time for you to consult, Mr.
Balin?
MR. BALIN: Yes, your Honor.
THE COURT: Okay.
MR. BALIN: I do think it would be unlikely that with
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respect to the 2005 cash flow statement that they would take
that down.
THE COURT: Right. Well, I'm not --
MR. BALIN: But I will, of course, consult with them,
yes, your Honor.
THE COURT: I think I understand, more or less, what
the parties' both judgmental and legal positions are, but I
want to have an opportunity as well to focus on the filing,
which I had not focused on before, but before we break, I want
to go back now to the question of the source and what we do
about the source or what you want to do about the source.
Mr. Chatterjee, assume, for a moment, that some
portion and, perhaps, all of the matters that you object to
with respect to 02138 are not going to be the subject of a
prior constraint by me, and I call it a prior constraint in the
sense that I'm telling them they can't continue to disclose
materials that are offered up for public review and evaluation.
Nevertheless, prior constraints don't mean that there cannot be
some form of ex ante remedy, I'm not sure what it is, but the
law of prior restraints, however one finds it to be coherent or
incoherent, is a pretty firm element in our legal universe.
That having been said, we're talking about prospective
relief not in the form of injunction with respect to, perhaps,
02138. A different issue for remedial purposes is raised if a
party or a person subject to a protective order has violated
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that protective order, and that's a matter that I obviously
take very seriously, irrespective of whether I'm inclined to
modify or would be inclined to modify that protective order if
it existed at the time, and the law of injunctions is,
irrespective of the underlying validity of the injunction,
people are supposed to obey the injunction until a court of
competent jurisdiction is modified.
Now, it seems to me there has to be discovery on this.
In fact, if the parties weren't prepared to do it, I would take
steps to do it, but it seems to me that the discovery process
can be done by the parties here with a view toward identifying
what the real source was of this. What would you propose?
MR. CHATTERJEE: Your Honor, I think that there are
two things that we need to start with. I think the first thing
that we need to start with is I do want to make sure that these
documents that we're all talking about are the entirety of the
universe of documents that are marked confidential that 02138
still has, and what I don't want to see happen is additional
documents being posted online and we have to run back here and
deal with this issue again.
THE COURT: Mr. Balin, are you in a position to
respond to that? That is to say, you know, I read quickly the
article that I guess is in the current issue and then the
associated postings. My reading of the article suggests to me
that there were more documents that may have been marked
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confidential but made available to -- I keep forgetting the
fellow's name. Mr. Miller, is it?
MR. BALIN: Mr. O'Brien.
THE COURT: Mr. O'Brien, but is there any issue about
further postings or additional postings? Do you know what this
is, without binding you, but just to understand what the
potential problem --
MR. BALIN: I would have to talk to my client about
that, your Honor, to find out if there are additional documents
as well.
THE COURT: Right. I mean, the practice of posting
has become fairly common, so that, you know, people reading an
article can look at the source documents themselves, and I
assume that some editorial judgment was made at the time to
produce the ones that were thought to be of most interest, but
except that the process of having to respond to this litigation
may create additional interest that there's not going to be
more out there, Mr. Chatterjee. So, Mr. Balin, if you could
put that, add that to your agenda.
MR. BALIN: I have a number of questions on my list,
your Honor.
THE COURT: Okay.
MR. CHATTERJEE: And, your Honor, the reason that's a
concern is that because today on 02138 they put up some remarks
on one of their editor's blogs, which is a commentary by people
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associated with it, saying that we were going to court today
and people need to download the things while they can right
now, because they may be enjoined, encouraging them to do it.
So, if the problem proliferates, we just need to know that.
THE COURT: Well, yes, and I'll just look to Mr. Balin
to respond to that. There is, you know, Mr. Balin used one of
the multitude of metaphors that make this so daunting, the
emergence of the cat from the bag or un-ringing the bell or any
of those things, meaning, once this gets into the public
domain, it's hard to control it, and, in fact, the e-mail that
I was sent from Gibson Dunn suggested a view that, having been
served with documents that were sought to be under seal but
were not under seal had resulted in disclosure that would
provide a defense in this case yesterday. So, all of us,
clerks offices, lawyers submitting documents and others have to
be careful that there are those who will be vigilant in trying
to find what has emerged into the public domain without
effective control. But, I understand the point. I'm not
surprised that the editor's blog gave helpful assistance to its
readers about how they, too, can maintain access to materials.
MR. CHATTERJEE: And, your Honor, the reason we did
come as quickly as we possibly could and, admittedly, somewhat
hastily put together papers very quickly is because we want to
avoid that. I'd like to give you a couple of case citations
that aren't in the papers, but we can talk about that in a
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moment.
THE COURT: Yes.
MR. CHATTERJEE: But the second point of your question
is, well, what do we do about the going forward issues, and I
think there are a couple of things that need to happen as part
of the investigation. I think the first thing we need to do
is, this is the first I'm hearing about, perhaps, the First
Circuit beyond the just, the appendix, that there may be other
materials that, for some reason, are subject to public view. I
think we have to investigate that and make an assessment as to
whether things are in public there that aren't, that shouldn't
be, and then make whatever, you know, showings are necessary to
get those placed under seal.
THE COURT: Let me tell you about a parallel concern
that I have, which is, this is an adjudicatory matter; you've
raised an issue that requires adjudication. There is a
separate institutional matter for me of ensuring integrity of
orders in this court, so that, for example, materials that are
filed under seal here are kept under seal here, meaning the
District Court, and making inquiry of the Court of Appeals what
happens to them when they get over there. I don't know exactly
how successful you're going to be with discovery inquiry as to
the courts themselves. You suffer from some disabilities that
I won't --
MR. CHATTERJEE: And I wasn't suggesting that I do it,
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I was just suggesting that that's one of the things that needs
to happen.
THE COURT: Right, and it's a difficult issue. I
don't mean to foreclose efforts, it's just that I think there
can be distractions in this area, and I think what I might
suggest is that, at least initially, I make some inquiries
myself so long as the parties aren't concerned about me being
involved in some sort of ex parte inquiry, but simply to
identify areas that need to be discussed or developed more
fully.
MR. CHATTERJEE: We'd appreciate that, your Honor.
THE COURT: All right.
MR. CHATTERJEE: And, so, that's the first step. I
think, looking at both the trial court files from the '04 case
and the current case and then the appellate court files is the
first thing that needs to be looked at. I think the second
thing that needs to be looked at, in light of the handwritten
notes and the metadata that we've located is, I do think we
need to investigate whether ConnectU was the source of this
information. Given that we've kind of rushed into court to
deal with this issue, I haven't given it complete thought as to
how to do that. I do think we need to be able to check the
e-mail records and understand what communications they've had
with the press. You'll remember, your Honor, in July of this
year, they organized a press conference after --
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THE COURT: But that was a public event. I mean, I
expressed, perhaps pointedly, my own views about that, but
that's a little bit different than and more a prudential matter
than a violation of a court order, and you'll recall at that
time I invited the parties to consider whether or not a special
order should be made and no one asked for it apart from --
MR. CHATTERJEE: Yes, I understand.
THE COURT: -- apart from the continuation of
protective order there. So, yes, you want to find out if
ConnectU is involved in it, you've got some reason to believe
that they are.
MR. CALAMARI: Your Honor?
THE COURT: Yes.
MR. CALAMARI: This is Peter Calamari from Emanuel,
and one thing that troubles me is that very accusation.
THE COURT: Well, just a moment, Mr. Calamari, two
things. I'm sorry, Mr. Calamari, I think we have a not very
good connection, or maybe you're not speaking directly into the
phone, that's number one.
MR. CALAMARI: Is this better, your Honor?
THE COURT: Yes, it is. Number two, I'm less
concerned with hurt feelings about accusations than I am trying
to find out how we resolve potential accusations. So, what I
want to do is hear from Mr. Chatterjee with his proposal, and
then I'll hear from the other parties about what they want to
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offer on that.
MR. CHATTERJEE: And, your Honor, just to be clear, I
think we should follow the approach that we architected at the
very beginning, which is, we first check with the Court as to
the documents that were of greatest concern with us, to make
sure they were still under seal in this court's record. If we
determine that it was, in fact, some sort of a clerical error
on the side of the First Circuit, then we'll figure out how to
deal with that. If it turns out that may not be the case, and
we think it may not be the case, the online journal, for
example, just as one other example, has a confidentiality stamp
that's never been submitted to a court, never, and --
THE COURT: Well, you said that, but the online
journal has been submitted in connection with the second
amended complaint, hasn't it?
MR. CHATTERJEE: It's a different document, your
Honor. It's the same content, except if you compare the two
documents, there are things on them, there are markings on them
that indicate that they're different documents.
THE COURT: This is the handwriting?
MR. CHATTERJEE: No. The handwriting's one document,
then the online diary of Mark Zuckerberg, the one we were
talking about just a moment ago --
THE COURT: Right --
MR. CHATTERJEE: -- the one that was submitted to the
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Court was provided as two pages, and it did not have a stamp at
the bottom that said confidential, because it was produced on
the CD, where the CD was stamped confidential.
THE COURT: But couldn't the reproduction of this
either include or not include the addition of a confidentiality
or confidential reference?
MR. CHATTERJEE: Not if it originated from a court
file, because that was not in the court file, your Honor.
THE COURT: Well, couldn't someone put it on, I mean,
to throw you off the scent?
MR. CHATTERJEE: I'm sorry, your Honor?
THE COURT: To throw you off the scent as to source,
it's disinformation.
MR. CHATTERJEE: Potentially.
THE COURT: Is the printout of it the same lineage as
the one that's in the Court file?
MR. CHATTERJEE: Yes, your Honor.
THE COURT: So, the only difference, really, is it
says "Confidential" on it?
MR. CHATTERJEE: There are several differences, going
back to the point I made. The first one that I mentioned is
this sticker that appears to be on it. The second is this
metadata information, the fact that it was a dot doc file.
THE COURT: I see. I guess I understand that.
MR. CHATTERJEE: There are lots of indications that
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that document didn't originate from a court file.
THE COURT: Okay. I guess what I really want to go to
is, so what do you want to do?
MR. CHATTERJEE: So, what I would like to do, your
Honor, is I'd like us to confirm that it isn't in any court
file, step one, and if your Honor can help us, we'd greatly
appreciate it. Step two is I think we need to investigate it
by understanding what has or has not been given by ConnectU to
the media, and we need discovery on that. Now, at this point
I'm willing to make the assumption that it is not a lawyer
that's involved that engaged in this conduct, although some of
the documents really shouldn't be in the hands of parties.
THE COURT: Shouldn't be because of the protective
order or shouldn't be just as a matter of good housekeeping?
MR. CHATTERJEE: I would say both, your Honor, that
the protective order certainly governs that some of this
information -- I can't imagaine why the Winklevoss brothers
would have our cash flow statement, for example, but also, as a
matter of good housekeeping, I think that that's true. I think
once we explore what happens with the individuals and we
understand what they may or may not have done, then we have to
revisit the issue and we address the more sensitive issues
associated with counsel. I don't want to do that easily,
because I understand this is a serious issue.
THE COURT: What are you saying, that you want oral
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depositions of the parties in the case?
MR. CHATTERJEE: I also will want document discovery,
your Honor, because I think, if this, in fact, originated with
ConnectU, for example, I think that dot doc file was e-mailed.
THE COURT: You think it was e-mailed?
MR. CHATTERJEE: I think it was e-mailed. I don't
know for certain, but it's an electronic file, it came from
somewhere. It's dated three days after we produced it. It
came from somewhere. I want to know -- I want to see if anyone
at ConnectU was the point of origination for that.
THE COURT: All right.
MR. CHATTERJEE: So, I do think there will be some
document discovery, but I think that's primarily it, it's
document discovery and depositions. I also think that we
should seek discovery from 02138, and I understand that may be
a sensitive issue, but because they've already identified where
they're claiming their source is, I think we're allowed to test
that.
THE COURT: All right. Mr. Hornick or Mr. Calamari,
do you have views? Let me just explain. I do have a general
disposition, which is that I'm going to permit some sort of
discovery in this area, and I just want to, perhaps, refine it
and maybe end up leaving it to the counsel to present me with a
discovery plan.
MR. CHATTERJEE: And, your Honor, there is one other
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thing that I would like -- I'd like to find some handwriting
samples that preexist the hearing today from each of the people
involved on the ConnectU side of the case, because I'd like to
try and compare that against the handwriting on the Harvard
Administrative -- the annotations on the Harvard Administrative
Board documents that were posted, because we don't have that
document --
THE COURT: What does that mean, that you want
letters that they've written or that sort of thing?
MR. CHATTERJEE: Something like that, your Honor,
because we know that the handwriting is on Dyvia Narendra's
deposition corrections. It's fair to assume that it may be
him, but it's also fair to assume that maybe somebody else did
that writing and that he authorized it, and we --
THE COURT: You mean, on the deposition correction?
MR. CHATTERJEE: Yes, your Honor.
THE COURT: That's a quick question to him, did he
sign it or not.
MR. CHATTERJEE: Well, he might have signed it, but he
might not have actually filled it out.
THE COURT: The annotations, but you can ask him that.
MR. CHATTERJEE: Right.
THE COURT: So, you're looking for pre-existing
handwriting exemplars --
MR. CHATTERJEE: Yes, your Honor.
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THE COURT: -- of the relevant people here.
MR. CHATTERJEE: Yes, your Honor.
THE COURT: All right.
MR. CHATTERJEE: On some of the handwriting we have,
for example, it's not quite a large-enough sample to make a
comparison. We have a pretty good one now, but we'd like to
get more, because we do think that might --
THE COURT: Do any of these people actually use
handwriting anymore?
MR. CHATTERJEE: Well, your Honor, someone did on the
Harvard application. Mr. Narendra, or whoever filled out that
that form, did it in correcting the deposition. We do have
some handwritten notes where names of people and things like
that are identified that have been produced in this case.
MR. HORNICK: Excuse me. This is John Hornick. Neel,
could you explain the handwriting thing again? I didn't really
catch it at the beginning, because you were a little garbled.
MR. CHATTERJEE: Yes, I'm happy to, your Honor. May I
explain it to Mr. Hornick?
THE COURT: Yes, go ahead, because I need to hear
things three or four times before I absorb them.
MR. CHATTERJEE: There is a document from Harvard that
is Mark Zuckerberg's college application. That document was
produced by Harvard in this case. The document that was posted
online originally had handwritten notes on it saying a number
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of things, and when we asked for the Social Security number and
address information to be redacted, a new version was put up.
That handwriting was also redacted in the new version that was
put up on the website in addition to the identifying
information. We submitted those annotations that were on the
side of the first posted Harvard application and the
annotations, or not the annotations, the corrections to Dyvia
Narendra's deposition to a handwriting expert, and that expert
has come back and has said, at least preliminarily, that the
two handwritings on the Harvard application, the annotations,
the document we don't have, was not produced in this case, and
the Dyvia Narendra deposition corrections are a probable match.
THE COURT: Okay. The one part of that, I'm sure
there are other parts that I didn't fully appreciate, but the
one part I don't fully appreciate is you said that the Harvard
application was not produced in this case?
MR. CHATTERJEE: No, your Honor, so, there are three
versions of the Harvard application.
THE COURT: Right.
MR. CHATTERJEE: I can give you a copy.
THE COURT: Just tell me about them, first.
MR. CHATTERJEE: The first one had no notes in the
margin area.
THE COURT: Is that the one that was submitted by
Harvard as discovery?
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MR. CHATTERJEE: Yes, that was the one that was
produced in discovery by Harvard and is part of the Court
record.
THE COURT: Okay. Number two.
MR. CHATTERJEE: Number two, we have not found this in
the Court record, is one that has handwritten notes in the
margins in commentary. Number three is the -- and that was the
version that was posted by 02138 on their website. Version
three has certain personally identifying information from Mr.
Zuckerberg redacted, and it also has redacted some of these
handwritten margin comments.
THE COURT: Okay. Now I think I understand. So, the
exemplar you're using is number two here, that's what you
submitted as the known handwriting to the expert and the
questioned handwriting was -- that's the questioned
handwriting, and the known handwriting is the deposition
annotation?
MR. CHATTERJEE: Correct, your Honor, and just to
that, I mean, it would also be helpful if there are a way for
us to get originals on both of those, obviously, because every
time you make a copy the quality degrades.
THE COURT: Right.
MR. CHATTERJEE: So I think I framed the discovery
issues, your Honor.
THE COURT: Yes.
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MR. TIGHE: Good afternoon, your Honor, I'm Daniel
Tighe for the ConnectU plaintiffs, your Honor. Just
preliminarily, your Honor, we have scrambled over the last
couple of days to try to obtain some declarations from our
clients, and they're sort of scattered, but we have
declarations from the two Winklevosses, and they say, to their
knowledge, they have never had possession of any of this
material. Certainly, they didn't participate in the writing of
the article, they never sat for an interview, and they never
disclosed any confidential information, which I'll pass up to
your Honor.
THE COURT: I think one of the things I'm going to
suggest to the parties is, rather than submitting provisional
materials now, that they be, that everybody take a deep breath
and think carefully about what they're submitting here, in
light of discussions that we've had, because my experience,
which is not insignificant with leak investigations and similar
activities, is that the nondisclosure phase is more dangerous
than the original problem, and, so, to ensure that the parties
have carefully considered their positions, I'm simply going to
suggest that I won't be acting on such declarations at this
time. I understand that that's your representation regarding
your clients or, at least, the Winklevoss clients.
MR. TIGHE: Thank you, your Honor, and it is my
understanding that Mr. Narendra would say the same, we just
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haven't received, or I hadn't by the time I left my office --
THE COURT: Right.
MR. TIGHE: And just the second point, your Honor, is
if Mr. O'Brien offers to submit his own declaration saying that
he's obtained this information from the First Circuit Court of
Appeals, then I would just submit that, your Honor, you know,
if there are footsteps or tracks, you know, why would we
originally or initially assume that it's a zebra rather than a
horse or a dog. Mr. O'Brien gives us the answer in his papers,
offers to provide a declaration, saying --
THE COURT: Which do you label your clients?
MR. TIGHE: Neither, your Honor. I think that, I'm
just suggesting that I think we're reaching for some of these
inferences.
THE COURT: Well, perhaps. My own view is
declarations are fine in their own place, but this is one that
I think in which actual live examination of witnesses is
appropriate.
MR. BALIN: Your Honor, this is Mr. Balin, and I'm
just going to, I think this is an appropriate point for me to
chime in.
THE COURT: I'm not sure -- Mr. Balin, just a moment,
I'm not sure it is yet, because I want to explore between the
parties first what their view is, and then, of course, I'm
going to hear from you.
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MR. BALIN: Very good, your Honor.
MR. TIGHE: My last point, your Honor --
MR. CALAMARI: This is Calamari again. Hopefully, you
can hear me a little better this time.
THE COURT: It's important that I hear you and, even
more important, that the court reporter does. If you could
speak up a little bit.
MR. CALAMARI: I'm trying. I'm speaking as loudly as
possible, and my mouth is almost on top of the microphone.
THE COURT: Okay. I recognize the dangers of telling
a lawyer to shout.
MR. CALAMARI: I understand that your Honor is
disposed towards having some discovery here.
THE COURT: Right.
MR. CALAMARI: Again, there is no indication that
these documents came from anyone associated with the ConnectU.
If there's going to be discovery, it ought to be open-ended.
The documents could have come from any of the parties, and we
really believe that the documents came just from the source
that has already been identified as the source of the court
file, but if Thefacebook defendants want to launch this hunt,
then they ought to be part of the hunt, since there is no
reason to believe that these documents couldn't have come from
any of their file.
THE COURT: Right. Well, all of that's true but not
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very helpful. The issue for me is to try to set a reasonable
discovery undertaking, and the concept of sauce for the gander
adds a certain taste to this but really is not going to advance
the discussion.
MR. CALAMARI: With all due respect, your Honor, we're
being accused of something --
THE COURT: Mr. Calamari, I told you before -- now
I'll shout. I told you before that I'm not really interested
in the back-and-forth of accusation, I want to get to the
source of this, and your suggestion is interesting and
certainly something to be taken into consideration in
formulation of a meaningful discovery plan, but let me be
clear, I consider that there has been a violation of the
integrity of the court process. It may be a result of the
court's own negligence or that of the clerk's office, it may be
the result of disclosure improperly by those who were covered
by a protective order, but, in any event, we're going to get to
it, but we're not going to get to it with references to hurt
feelings about accusations and suggestions of tit for tat.
We're going to go a little deeper than that.
So, I guess my view on this, as between the parties,
is that I'm going to leave it to the parties to develop or
attempt to develop a discovery plan, but this is a matter I
take, as I'm sure the parties are aware, very seriously. So, I
think during the break that we're going to take so that Mr.
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Balin can consult with his client, the parties ought to talk a
bit about what a reasonable discovery plan is and a reasonable
time frame for it. I have every expectation that a question
documents examiner is not going to feel particularly
comfortable with the foundation that the question document
examiner has now, would want more, and is entitled to more.
There is a necessity, I think, of exploring precisely what
these pdf documents or document required, but I want a
reasonable time schedule that sequences discovery appropriately
rather than seeks to distract by requiring some form of
equilibrium in terms of the amount of time, after all, the
first order of business, as was brought to my attention by
Thefacebook rather than by ConnectU. So, as to that issue,
we'll look forward to at least preliminary discussion when we
return here at, I'll say, 3:30.
MR. HORNICK: Your Honor, this is John Hornick. May I
say something?
THE COURT: Sure.
MR. HORNICK: I have two points. One may help the
parties to reach an agreement on the discovery plan, and the
other one is to explain the date on the facemash online
journal. With respect to the date of January 10th, that
document was produced to ConnectU by Facebook on, I think, Mr.
Chatterjee said January 7th. It was produced on a CD ROM, pfd
84, in php format.
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THE COURT: I'm sorry, the acronym again?
MR. HORNICK: php, dot php.
THE COURT: Okay.
MR. HORNICK: And we sent the disc, pdf 84, to
ConnectU's expert, Mr. Parmet and on January 10th, he sent me
an e-mail with this document attached to it, he had found it on
the CD ROM, and he said, "For convenience, I'm converting it
into a pdf," and the date on the top is the date that he
created the pdf from the php file and e-mailed it to me. From
that point forward, that document was maintained here at the
firm as a php document. Any time we wanted to look at it, any
time we wanted to make a copy of it, we made a copy of that php
document, and -- I'm sorry -- pdf. After we converted it into
a pdf on January 10, we kept it in that format from that time
on. So, that explains how that document was created on January
10th. It was a conversion of the document from php into pdf.
Now, after that, and this document that was filed with
the Court, I'm sorry, this document that was made available
online, it is a modified version of that document, because it
has the date in the upper right-hand corner of January 10th.
THE COURT: Right.
MR. HORNICK: But anyone could have made those
modifications, and we've looked into what you would do if you
wanted to take a paper document that's available in the court,
like, if Mr. O'Brien had gone to the court and he got a copy of
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this document somehow, it would have been paper, and then he
would have scanned that in so that he can make it into an
electronic form, and at that point you can easily make changes
that are the differences between Exhibit 8 to the first amended
complaint and the version that was published on the internet.
THE COURT: I guess the assumption that you're making,
I appreciate the information, Mr. Hornick, I have one question
and one observation. Was the time the same? That is, the date
is January 10th. Was the time 9:33?
MR. HORNICK: Yes.
THE COURT: So, this is the date and time that it was
returned to you and reduced to a pdf file after being shown to
your computer forensic person?
MR. HORNICK: That's right.
THE COURT: Okay. And the observation, I guess, I
have is the assumption of scanning, and maybe Mr. Balin's going
to be able to answer that question of whether or not Mr.
O'Brien was engaged, was scanning these documents.
MR. BALIN: I cannot answer that question, your Honor.
THE COURT: Okay.
MR. HORNICK: I'm only saying, your Honor, this is
John Hornick again, there had to be scanning, because if the
document came from the Court, it would have been a paper copy,
because documents under seal have to be filed in paper form,
and to get it onto the internet it would have had to be
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scanned.
MR. BALIN: That's true.
THE COURT: Right.
MR. CHATTERJEE: And, your Honor, just, if I may add,
we've considered that issue. When you scan a document into a
pdf format, it creates a much larger file size than what's
converted from a dot doc file. This is a smaller file size pdf
than what would happen with scanning.
THE COURT: I look forward to learning a great deal
about computer forensics in all of this, but now your turn, Mr.
Balin. I take it that the offer still stands with respect to
the submission of a declaration by Mr. O'Brien?
MR. BALIN: I certainly will talk to my client, your
Honor.
THE COURT: Well, is your client likely to think now
that something that he didn't think then, that being when you
filed the document with the court with that footnote --
MR. BALIN: I don't think so, your Honor. This is,
indeed, after speaking with the client, and my understanding is
what's been told to me, so I will check.
THE COURT: Okay. Let me understand, because I
recognize the sensitivity of the discovery process in this
setting.
MR. BALIN: Yes.
THE COURT: Putting to one side what this seems not to
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be or, at least, aspects of it seem not to be, the
representations made don't indicate that with respect to any of
these documents that Mr. O'Brien's only source was what we
could call a privileged communication with a newsman's source.
The representations are that these are, he obtained them in the
public domain --
MR. BALIN: That's correct, your Honor.
THE COURT: -- whether improperly or not, they're in
the public domain.
MR. BALIN: Right.
THE COURT: I am, however, quite concerned about the
process of burdening journalists with the obligation to appear
at depositions and so on, irrespective of whether or not
there's a question of privilege that arises, and I think the
first step is to obtain a declaration, a full declaration from
Mr. O'Brien, and I'm sure, just as I mentioned to -- Mr. Tighe
is it?
MR. TIGHE: It's Tighe, your Honor, that's correct.
THE COURT: -- Mr. Tighe, you're going to, everyone's
going to want to talk to their client more carefully rather
than doing this in response to a real time crunch, so that we
have their last and best and final offer of what they believe
after refreshing their recollection and thinking carefully
about committing themselves to something under oath. So, I
guess the short of it is, my first view is that, if Mr. O'Brien
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can provide a comprehensive declaration regarding the source of
these materials, that is, the materials that have been posted,
not his sources for the article itself or anything like that,
but the materials that have been posted, that would be a
helpful, perhaps not the final step, but perhaps the final step
in discovery from 02138 or its affiliates.
MR. BALIN: I thank you, your Honor. You actually
made the point that I was going to make better than I could
have, and, indeed, we agree that discovery of the journalists
really should be the last resort, and I will, of course, speak
with him and with the magazine about a declaration.
THE COURT: Okay. So, I think I've outlined us some
tasks between now and 3:30, and what we'll do is reconvene at
3:30 to discuss this. I have a series of questions broadly
defined as to whether or not there are any further editorial
changes that 02138 is prepared to make and some other matters
that you may want to bring to my attention, in particular, when
we might expect an affidavit or declaration from Mr. O'Brien
and then the question of discovery, and I'll rule on the more
specific question of their request for injunctive relief after
I've heard from 02138. Is there anything else that we should
talk about before we break?
MR. HORNICK: Judge, this is John Hornick. I have a
second point from before.
THE COURT: Yes, go ahead.
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MR. HORNICK: My suggestion would be that when the
parties retire to discuss the plan for discovery, that, first,
we formulate a plan for investigating whether the source was
the court; in other words, Mr. Chatterjee says he wants to
check with the court, we can put together a plan for
investigating that. Your Honor has said that he wanted to make
some investigations.
THE COURT: Right.
MR. HORNICK: And then, if that proves to be the
source and the only source, then I would propose that we
reconvene with the Court at some time in the future, and if
that turn us out to be the source, then there won't be any need
for any additional discovery, and if there is a need at that
time, then I would propose that the parties formulate a
discovery plan at that time that delves into what ConnectU did
or didn't do, what counsel did or didn't do.
THE COURT: Well, I understand the thrust of what
you're saying, Mr. Hornick. I think that the way I would
formulate it is this for the parties instrumentally in trying
to think about what you want to do in the next hour and a half,
and that is, on the assumption that there is reason to believe
that this court was not the only source of, at least, certain
of the documents of this case, what form should discovery
proceed on. My guess is that the parties will want to see Mr.
O'Brien's declaration as well before moving forward, but I'd
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like, preliminarily, for the parties to be thinking that there
will be some form of discovery inter se regarding the role of
the parties in the disclosure of these documents. I've heard
enough, I think, to suggest that it may, at least with respect
to one document, may have come from a party source, but in any
event, I think we'll make sure that all of the drums are tapped
on this and are tapped in parallel fashion, not sequentially,
as you suggested.
MR. HORNICK: Your Honor, it's John Hornick again.
Could Mr. Balin ask his client if the handwritten notes on the
Harvard application came from Mr. O'Brien?
THE COURT: Yes, that's a good question. Mr. Balin,
you can ask and, of course, you will tell us whether or not
he's prepared to respond.
MR. BALIN: Absolutely, your Honor.
MR. CHATTERJEE: Your Honor, just to add to that, if
he knows where they came from, if it wasn't him, that would be
useful now, too.
MR. BALIN: Let's be clear. You're talking about the
application that appears on the site?
THE COURT: Right.
MR. BALIN: Okay.
MR. CHATTERJEE: As it originally did.
THE COURT: As it originally appeared on the site. As
I understand it, there are three iterations of this document,
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at least three that have been brought to my attention, the
first one being an iteration that had some holographic
additions to it. All right? Okay. So, we'll try to be back
here at 3:30.
MR. CHATTERJEE: Your Honor, just two very quick
things. For the 3:30 call, Mr. Bauer has informed me we can
use the same call-in number, and as your Honor is considering
our request, if I could just provide you with two cases.
THE COURT: Yes, that would be helpful.
MR. CHATTERJEE: One of the cases is -- actually, I'll
provide you with three cases. One is called DVD Copyright
Control Association.
THE COURT: B as in Boy?
MR. CHATTERJEE: DVD, and I will give you a copy of
them.
THE COURT: Just so that Mr. Balin and Mr. Hornick and
Mr. Calamari have the cites.
MR. CHATTERJEE: I'll give the citations.
THE COURT: Go ahead.
MR. CHATTERJEE: 31 Cal.4th 864, it's a California
Supreme Court opinion from 2003. The ZYPREXA case, which is
cited in the papers, I won't restate the citation, because I
think they know the case. The third one goes to, if your Honor
decides to issue a restraining order related to internet
activity, a case that's dealt with a very similar issue, the
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DVD Copyright Control Associations it's the same plaintiff, and
that citation is 2000 West Law 48512. It's a Superior Court
opinion from the San Jose Superior Court in Santa Clara. I'll
provide your Honor with copies of those three opinions, if I
may approach.
THE COURT: Yes. I just noted that these are
California cases. I assume that they deal with First Amendment
analysis?
MR. CHATTERJEE: Yes, your Honor, and the reason that
I'm citing those two cases is because they go exactly to the
issue of posting content that is of a private concern on a
website --
THE COURT: Right.
MR. CHATTERJEE: -- and the difference between that
and editorial commentary where an actual article is written,
talks specifically about -- they referred to that the -- 02138
referred to the Procter & Gamble case.
THE COURT: Right.
MR. CHATTERJEE: These two cases, well two of the
three cases address that very same issue and, in many
instances, distinguish the Procter & Gamble case for the exact
same reasons we think the Court should adopt a different
approach here.
THE COURT: Okay. Well, you'll pass up those cases,
it will save me some copy time, and I'll see you at 3:30.
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MR. CHATTERJEE: Thank you very much, your Honor.
MS. RITVO: Thank you, your Honor.
THE COURT: We'll be in recess.
(Recess taken from to 2:10 p.m. to 3:45 p.m.)
THE CLERK: This Honorable Court is back in session.
You may be seated.
THE COURT: Well, do we have Mr. Balin on the phone?
MR. BALIN: We do, your Honor.
THE COURT: Okay. Mr. Balin, what do you have to
report?
MR. BALIN: You've given me a laundry list, your
Honor, and I think the first matter I wanted to report is
mystery solved, I believe. We have gone over the two documents
that Mr. Chatterjee --
THE COURT: Just a moment, Mr. Balin, if you could
speak up. One of the problems is, obviously, so the court
reporter is able to pick up.
MR. BALIN: I apologize. We went over, and I also
apologize, of course, you know, we were playing catch up a
little bit, we went and relayed what Mr. Chatterjee said about
these two documents. One was the application that had
handwritten notations on it --
THE COURT: Right.
MR. BALIN: -- and the other one was this online diary
that Mr. Chatterjee is concerned may not come from the Court's
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file and, of course, we oppose that --
THE COURT: Right.
MR. Balin: -- and I'd like my colleague, Amber
Husbands is on the phone with us, and, Judge, because this
involves some computer language, I'm going to get it wrong if I
do it. If I could ask, with your permission, to just allow her
to quickly go through the two documents we've learned from our
clients.
THE COURT: If she could spell her name, too, so that
the court reporter could get that down.
MS. HUSBANDS: Yes. It's Amber, A-M-B-E-R,
H-U-S-B-A-N-D-S, also with Davis Wright Termaine.
THE COURT: All right.
MS. HUSBANDS: The first document is the Harvard
application. This is a file that Mr. O'Brien got from the
Court, from the First Circuit, as he did with all of the
documents that are online. The document that Mr. O'Brien
provided to the magazine had his handwritten notes on it, Mr.
O'Brien's handwritten notes. When the magazine first posted
the document on the website, it meant to remove all of the
handwritten notes to clean up the document. It apparently did
not get all of them, and then when it went back, when the
computer staff went back to redact the personal identifiers at
the request of Facebook, it also removed some of the additional
handwritten notations that it noticed on the second go-round.
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THE COURT: All right.
MS. HUSBANDS: The document came from the court, and
the handwritten notes were Mr. O'Brien's.
THE COURT: In that connection, Ms. Husbands, the
Court that you're speaking of is the --
MS. HUSBANDS: The First Circuit.
THE COURT: The First Circuit Clerk's Office.
MS. HUSBANDS: Yes.
THE COURT: Okay.
MS. HUSBANDS: As far as the second document, the
online diary, that also came from the Court files of the First
Circuit, however, the document that Mr. O'Brien copied was a
very poor copy. When he copied it again and sent it to the
magazine, when they scanned that, it was illegible, you
couldn't read it, they couldn't put it online. They had a
member of their staff retype, recreate the entire document.
They put the document in front of them, they opened up a Word
file, and she typed the document exactly as she saw it from the
file from the court into a new Word document.
THE COURT: All right.
MS. HUSBANDS: She reproduced the confidential tab,
she reproduced the 10 January label at the top, because that's
what the Court document -- the header and footer on the
document that she had a copy of.
THE COURT: Okay.
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MS. HUSBANDS: It was then converted to a pdf from
Word, just as they suspected, that's why the file was smaller,
that's why it indicates that it's a dot doc document and not
copied from a paper version, because it wasn't, it was
recreated.
THE COURT: May I ask one thing about that? You are
referring to Mr. O'Brien making copies. Did he take his own
scanning equipment?
MS. HUSBANDS: No, he made copies on the Court's copy
machine; you have to pay for it at the court.
THE COURT: Right. So, he made those copies, then
scanned them and sent them over to --
MS. HUSBANDS: No, he made paper copies, and he, at
the request of the magazine, sent all of his paper copies to
the magazine, which is why there are his handwritten notes on
some of them.
THE COURT: I see.
MS. HUSBANDS: They scanned them in.
THE COURT: And they, in turn, scanned them in?
MS. HUSBANDS: The magazine scanned the paper copies
that the reporter sent to the magazine.
THE COURT: All right. In that connection, is it
possible to have both Mr. O'Brien and whoever was the
percipient witness of the online diary copy exercise file
declarations? I guess, Mr. Balin, that's really for you.
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MS. HUSBANDS: Yes, it is possible, and both the
reporter and editor of the magazine will -- are willing to
submit declarations to that effect.
THE COURT: All right. That takes care of the, I
think the first, or that, I take it, is the response to those
two issues. There are a few more. Mr. Balin. Mr. Balin?
MR. BALIN: Judge, can you hear me? I'm sorry.
THE COURT: Yes.
MR. BALIN: In his declaration, the reporter, Mr.
O'Brien, will also, again, confirm that he got the documents
from the court file.
THE COURT: All right.
MR. BALIN: You also asked, your Honor, about
considering --
THE COURT: Can I just stop you for a moment, Mr.
Balin?
MR. Balin: Sure, your Honor.
THE COURT: With respect to that, when might we expect
a declaration from the reporter and whoever at the magazine was
involved in the copying and of the online diary?
MR. BALIN: Your Honor, Monday or Tuesday. What is
your preference?
THE COURT: Well, I think, so that everybody's clear
on it, I think Tuesday is probably best, just so, you know,
it's been vetted fully, because I want to emphasize that it's
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going to be a document subscribed to under the pains and
penalties of perjury.
MR. BALIN: And I understand that, your Honor, and
that will give us the time to carefully go over things.
THE COURT: Okay. So, that's Tuesday, I think, the
4th.
MR. BALIN: Okay.
THE COURT: Now, I interrupted you. Go on. I think
you were talking about the exercise of editorial judgment.
MR. BALIN: Yes, your Honor. I did speak to the
magazine, and one of the things you had raised was in the
transcript, this is the deposition transcript of Mr.
Zuckerberg, and Mr. Chatterjee was asked to identify what they
were concerned about, and we, I think, heard that at page, I
think it's about 216 to 219 there was information, and you had
asked about possibly considering redacting individual's names.
THE COURT: Right.
MR. BALIN: I have spoken to the magazine. Shame on
me, but this is, apparently, the person is a very well-known
public figure.
THE COURT: Hold on just a second. You're turning
away.
MR. BALIN: I'm sorry, your Honor. The person is a
well-known public figure. He founded Napster, is very much in
the news both with respect to business tech, pop culture, is a
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real public figure, and I did chat with them, and they have to
respectfully decline that invitation.
THE COURT: All right.
MR. BALIN: There was, however, someone on the next
page, and I'll identify it, it's page 219. It was, apparently,
a woman that was accompanying him.
THE COURT: This was page 9?
MR. BALIN: I'm sorry, no.
THE COURT: Line 9?
MR. BALIN: Page 219 of Exhibit 6, your Honor.
THE COURT: Line 9?
MR. BALIN: Absolutely, your Honor, you're correct,
line 9.
THE COURT: Right.
MR. BALIN: In their editorial judgment, they're happy
to redact that name.
THE COURT: Okay.
MR. BALIN: I did speak with them also about the
statement of cash flow, and they had, I believe, your Honor,
much the same -- it is part of the history of this company, but
they don't think it's truly disclosing much of anything, and,
indeed, at least it's publicly reported today that there's been
a $60 million infusion of capital into Facebook. They consider
this part of the history of the reporting. It is part of the
story, so that's where the magazine ended up with that.
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THE COURT: All right.
MR. BALIN: The last thing that you asked me about,
your Honor, was the -- I'm going to turn away so I can find a
document, your Honor, on the paper --
THE COURT: I think it's Exhibit 8.
MR. BALIN: Correct, your Honor, which was the name of
an individual, I believe, in the first line.
THE COURT: Right.
MR. BALIN: The magazine's view is that that
reference, quite frankly, is important not because of the
individual's name but because of what it says about Mr.
Zuckerberg. It is an article about Mr. Zuckerberg.
THE COURT: Well, unfortunately, the individual's name
is used there.
MR. BALIN: I agree with you, your Honor, but at
least, in their editorial judgment, it does have value, it is
part of the kind of story about who this public figure, this
very public figure Mr. Zuckerberg is, and with each of these,
your Honor --
THE COURT: Let me just understand this for a second.
MR. BALIN: Yeah.
THE COURT: A public figure refers to a nonpublic
figure and, consequently, that nonpublic figure is held up to
shame and disrepute, and that's an appropriate editorial
judgment? Perhaps I haven't been pointed enough about that.
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That Mr. Zuckerberg was distracted by an individual may or may
not be something worthwhile, but I am very concerned,
obviously, about the individual's name here. Whether or not
she is a student or was a student at that time is a subscriber
of 02138. I simply can't understand what the reason for the
specific identification of that individual is, particularly
when the redaction was made with respect to the individual said
to -- the woman said to accompany someone you say is a public
figure on page 219 of the deposition.
MR. BALIN: Right. Your Honor, I in no manner mean to
minimize the concern you express, and I think different people
could well come to different conclusions, but I, at least in
this case, it is judgment of the magazine and at least the
legal principles that ultimately they make the judgment, good
case, bad case, and I, you know, that they feel that it is part
of the story about this public figure, Mr. Zuckerberg. I hear
exactly what you say, your Honor.
THE COURT: Well, I'm sure that you'll advise them
with respect to the law of defamation, and the individual
involved is separate from Mr. Zuckerberg. So, I think there
are some questions that are raised here, without dealing with
them in any fashion, but I would urge you to consult again with
your clients about this, both in terms of consistency with
their editorial judgment for the deposition and also in some
sort of appreciation that a stranger, an innocent in this
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litigation and an innocent with respect to Mr. Zuckerberg's
activities, she seems solely to be someone who happened to be
on his mind at a particular time, has to have her name dragged
through or, more accurately, floated through cyberspace. So I
simply encourage you to talk to them again. All right? I take
it that you're going on to mute on your telephone.
MR. BALIN: I'm sorry, I pushed the wrong button, I
apologize, your Honor, and I will, again, as you've asked, of
course, talk to my client about what you said to me.
THE COURT: Okay.
MR. BALIN: The last issue that you asked me about was
Mr. Chatterjee's question, do we have more documents in our
possession. I am told that we do, we do have some documents,
and I cannot make a representation about whether or not the
client would or would not post any additional documents.
THE COURT: Let me put the question differently. Is
there a present intention to do so?
MR. BALIN: I guess the best way to answer it, Judge,
is that they made a determination, obviously, in connection
when they first posted the documents about what they thought
were the most useful to readers of the article, visitors to
their website. I have not heard, but I can't, I do not want to
in any manner in any communications with you, Judge, make a
misrepresentation, and, so, they have not, there's no
indication that they're rushing off to publish more, but I
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can't represent whether they would or would not post any more.
THE COURT: All right. I think I understand your
position.
MR. BALIN: Thank you, your Honor. If I've missed
something, I'm happy to address that as well. There will come
a time, I assume, that you would like me to address the merits
of the --
THE COURT: Yes.
MR. BALIN: -- of the motion itself --
THE COURT: Right.
MR. BALIN: -- the prior restraint motion. If it's
that time, I'm happy to talk. If you want me to wait, I'm
happy to do what lawyers have a hard time doing, but I'll shut
up for a second.
THE COURT: Well, let me hear from the parties whether
there's anything further at this time that you wish to hear
from Mr. Balin on behalf of 02138.
MR. CHATTERJEE: You mean, your Honor, with respect to
the issues that you talked about, I think I understand their
positions. I'm prepared to discuss them at your discretion,
your Honor.
THE COURT: Okay. Mr. Tighe?
MR. TIGHE: Your Honor, I would only ask if there are
concerns that Mr. Chatterjee or anybody else has with Mr.
O'Brien that could be addressed in his declaration it might
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streamline or eliminate the need for discovery later on,
whether we can think of them today or very shortly, that we
hear about them shortly, so that the O'Brien declaration might
be as complete as possible to eliminating what we would view as
unnecessary discovery down the road, if that's possible, your
Honor.
THE COURT: Well, in that connection, Mr. Balin, I
have been laboring under the assumption that Mr. O'Brien's
declaration and the declaration of the individual for the
magazine will cover entirely the acquisition of the documents
that are the subject of this motion.
MR. BALIN: I'm sorry, Judge; I didn't quite
understand. I apologize.
THE COURT: The question is whether or not these
declarations will fully --
MR. BALIN: Yes. We -- I think we intend to, having
heard the Court's questions this morning --
THE COURT: Right.
MR. BALIN: -- we're going to address them, as we've
tried to do throughout this.
THE COURT: Okay.
MR. Balin: And I would second that I believe that I
know one of the things your Honor indicated is that, of course
the Court itself can, you know, do whatever the Court deems
appropriate vis-a-vis investigating the court personnel, and I
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think that may clear it up rather quickly.
THE COURT: Well, in that connection, I will say this,
for the benefit of the parties, with really only about an hour
and a half to work with, I consulted both our Clerk's Office,
meaning the Clerk's Office of the District Court and, through
them, the Clerk's Office of the Court of Appeals, and while
some of the relevant personnel are not here today, and
additional research needs to be done, it appears consistent
with their understanding that a journalist was present in
September in the Court of Appeals Clerk's Office making copies
of various documents from the record, and defining "the record"
as not merely the record appendix but the record in the case
now under appeal in the First Circuit. So, that generalized
information is, I guess I can present it as what the
rhetoricians call litodes is not inconsistent with what you
told me about Mr. O'Brien's role, but we will continue to make
inquiry to try to understand more fully what happened from our
end, meaning, the second floor of this courthouse, which is
where the clerk's office of both the Court of Appeals and the
District Court is located. All right. So, Mr. Chatterjee, do
you want to speak to the motion here?
MR. CHATTERJEE: Yes, your Honor. Do you want me to
discuss the discovery issue first?
THE COURT: No. I want to deal, first, with the
question of whether or not there will be a preliminary
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injunction, and I'll call it a preliminary injunction, because
I've had, or the parties have had an opportunity and the
putative respondents had the opportunity to speak to the issues
here, and my view is that the principal difference between a
temporary retraining order and a preliminary injunction is
appealability, and I see no reason why my disposition should
not be appealable immediately on this.
MR. CHATTERJEE: Okay. Thank you, your Honor. So,
just so we're framing issues correctly, given the progress that
we made this morning --
THE COURT: Right.
MR. CHATTERJEE: -- so long as we don't follow a kind
of slippery slope of private communications, I'm very focused
on the excerpts that your Honor asked to explore before the
break, which are the pages 216 through 220 of the deposition,
the online diary, and the cash flow statement of Facebook.
THE COURT: Right.
MR. CHATTERJEE: Your Honor, before the break, I gave
you a case, DVD Copy Control Association v. Bunner.
THE COURT: Right.
MR. CHATTERJEE: That case discusses in a fair amount
of detail the difference between freedom of expression and a
private property right. Now, an online diary is something that
is personal property, it's not something that they're
commenting about, it is a diary that they've made available on
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the website.
THE COURT: Let me shape this a bit for you so you
know what you're arguing toward. My view, I guess, is that
this case is kind of core journalism. There is something
problematic for purposes of definition of trade groups
appropriating material or others who are not engaged in
journalism appropriating materials and then posting them on the
web, and it seems to me that it may fairly be said that a
magazine which is engaged in the discussion of timely events
without drawing me into some sort of editorial judgment has
properly, as an adjunct, the posting of source documents, the
relevant source documents.
One of the benefits of the web is that it provides,
and dangers, is that it provides unfiltered access to core
materials and unfiltered opinions, but one who reads magazines
frequently says, I'd like to see the underlying document, just
as a judge who reads briefs wants to see the underlying cases,
and, so, I believe, you can try to talk me out of it, that
there is within the scope of the expression that is this
article a degree of protection for the underlying documents
that doesn't lend itself to property rights analysis, which
tends to be somewhat artificial, in any event.
MR. CHATTERJEE: Your Honor, let me start with, well,
I guess there are two points related to those comments. The
first thing I think we have to understand is I'm willing to
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take that, at the moment, that the materials, the document,
that this was all obtained from the First Circuit.
THE COURT: Right.
MR. CHATTERJEE: Presuming it was there, and they
obtained it, that information should have been under seal.
Now, whether they were responsible or they knew or didn't know,
this is something that was under seal and was a protected
document.
THE COURT: It was and should have remained protected.
The question is whether when, and I'll call this core
journalism, because I think it is core journalism, gets its
hands on it, legally or illegally as a result of negligence or
as a result of some improper disclosure, it seems to me that at
that point, for purposes of prior restraint, there is not a
basis, unless there's something very compelling, for a court to
restrain it. Now, that's not to say that the judge or magazine
is not subject to ex ante remedies, I mean, ex post remedies,
but what it does say is that prior restraint isn't available
under those circumstances. To go back to the kind of stylized,
formalized law of property, the remedy is damage to your
property, and the fact of immediate disclosure is something to
be taken into consideration afterwards, not before.
MR. CHATTERJEE: I understand your point, your Honor,
but there is a competing Constitutional consideration related
to access to justice, and as your Honor identified earlier, the
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integrity of the judicial process. General speaking, discovery
documents, when we have protective orders in place, are not
things that the media are supposed to get ahold of.
THE COURT: They aren't, but they did, and the
question is, what's the remedy? We're not talking about
whether or not at this stage, you know, 02138 didn't come to me
and say, Change the protective order, which might tee that
particular issue up, but as you know, I've been concerned about
the protective order in this case, and I've taken time to deal
with that in connection with the motion to dismiss and the
motion for summary judgment, because I felt that I could
understand it more fully if I understood it in that context,
and was and is my intention to deal contemporaneously with the
motions to dismiss and for summary judgment and the scope of
the protective order. That all having been said, if under at
least one treatment of this, this is negligence on the part of
the Clerk's Office or Clerk's Offices, their negligence doesn't
lead to this very difficult Constitutional remedy against a
journalistic editing.
MR. CHATTERJEE: Thank you, your Honor. I think that
at some point there has to be the competing consideration of
the Court's issues. I understand your Honor's point on that.
The second point I was going to raise is the Bartnicki case,
and this is, again, in the DVD case that I provided your Honor.
THE COURT: Right.
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MR. CHATTERJEE: It says the United States Supreme
Court "expressly declined to extend Bartnicki to 'disclosures
of trade secrets or domestic gossip or other information of
purely private concern.'" These documents, again, they are not
anything that is written by the magazine. These are documents
that were created and pre-existed any public-figure issue
anyone could allege, and they are the property of my clients,
they don't belong in the public, and they shouldn't be, and it
is not the type of thing that a prior restraint applies to.
Now, your Honor did raise a point about does a First
Amendment inquiry attach and how does it attach. I read
Bartnicki and the case of ZYPREXA, the Procter & Gamble case,
the distinction between the two in ZYPREXA, as well as the DVD
Copyright Control Association case as basically saying there
are First Amendment issues implicated in all of those
situations, however, when it's content that is being written by
somebody, commentary in the press, articles and things like
that, that's entitled to a different scope of First Amendment
protection than merely republishing source code or republishing
a document that was produced in discovery.
THE COURT: That may be so if it's either/or. I'm not
prepared to accept that proposition, but I distinguish that
proposition from the circumstance in which it is both, that is,
the magazine offers up its reporter's view, and for the benefit
of those who, as one of our First Circuit judges frequently
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says, "has a desire for greater information," provides the
underlying source material, and one of the things that that
does is it creates a certain increased transparency to the
journalism and opportunity for individuals, readers to make
their own judgments about it. Now, obviously, that has to be
measured against certain things, but it seems to me that, when
they are conjoined, we've got a somewhat different set of
circumstances than a trade organization or similar entity
simply posting what you call property, and I'll accept that
that's a reasonable label up on the internet.
MR. CHATTERJEE: Your Honor, I guess I don't draw that
distinction. That is the type of issue that's addressed by
these cases that draw the distinction. Someone's talking about
source code and reverse engineering and then they're posting
the same source code, and it's about public commentary and
public dialogue that's going on.
THE COURT: Well, everything is, I suppose, and that's
the problem, and I want to emphasize one thing. I do not
consider it a slippery-slope argument or waiver on your part to
focus on those things that are immediate and irreparable,
because that's the standard that we're dealing with, but I do
believe that I must focus on those things that are sufficiently
compelling for purposes of interlocutory injunctive relief to
justify a prior restraint, and the mere label of something as
property or of commercial interest or capable of eliciting
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private titillation is not enough. That's why I focused on
particular aspects of the documents that were presented -- that
are presented here and pressed on the question of the exercise
in editorial judgment at least with respect to one.
MR. CHATTERJEE: Well, certainly, your Honor, I agree
with you the redaction of the names invokes a very high degree
of protection and concern, particularly for third parties; I
completely agree with you on that, your Honor. I don't think
with respect to 216 through 220 merely getting rid of the name
at this point is enough. I think that there's a lot of facts
around that that also need to be redacted.
With respect to the online journal, these are the
private thoughts of a person who's in college that's recording
things in their diary. I just, I have a very hard time
understanding how that invokes a public interest. That is
exactly the type of exception that Bartnicki said was not
within the scope of a prior restraint document.
THE COURT: Well, but we refer to someone who is
merely in college, but that's the whole point about this
underlying litigation. Yes, they were, and that's the
important, one important dimension to it, and, so, talking
about what Stephen Dedalus like was passing through Mr.
Zuckerberg's mind while he was also engaged in this development
activity seems to me to be suffusing the article itself.
MR. CHATTERJEE: But that document itself is not a
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form of expression, your Honor, it's not a form of expression
by the editors of the magazine.
THE COURT: Well, why isn't the selection of documents
to post on the web in connection with this article, that is,
primary-source materials, an editorial choice itself?
MR. CHATTERJEE: Your Honor, I don't think that that
decision is an editorial choice itself. It falls, again, right
within the ZYPREXA and the DVD Copyright Control Association
exceptions when they're talking about these separate privacy
rights. There is one other point that's, I think, important
here, within the context of the deposition testimony, and that
deposition testimony on 216 to 220, if you read that you will
see repeated and expressed comments about designating the
information as falling under a protective order. It's
impossible to read that testimony and to not think that it
isn't protected information, whether they got it inadvertently
or through some improper means.
THE COURT: Well, but that the parties wanted to keep
it protected is clear.
MR. CHATTERJEE: But they had notice of the protective
order at that point.
THE COURT: Just a moment, just a moment. The
question that you're raising is whether or not someone who has
notice of a protective order is bound by it, and the answer is
no, as a legal matter. That is to say, could I enforce through
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the protective order itself, its mechanism, that order on
strangers to the litigation, those who are not signing that
order? I have some considerable difficulty thinking I could
under these circumstances.
Now, this gets to a more fundamental issue, which I
should, I think, dispose of, that Ms. Ritvo and Mr. Balin
alluded to, do I have the jurisdiction over this? I think the
answer's pretty clear, I do, but that jurisdiction is not
flowing from the protective order, it flows from the All Writs
Act, 28 U.S.C. § 1651, to ensure that all of my orders are
properly read, but that just begins the discussion. Yes, they
were aware, we will say they were aware.
On the other hand, a defense, I suppose, is that the
Court disclosed, under the present understanding of the facts
or, at least, some of the facts, the Court itself disclosed
these documents. If they were subject of the protective order,
they shouldn't have seen them, and the Court shouldn't have
given them to them, but once that's happened, one can hardly
say that there's been that level of intent and willfulness that
might fortify your case.
MR. CHATTERJEE: It may or may not, and there's no way
for us to know at this point, your Honor.
THE COURT: Right. Well, this point is when I'm
ruling on this issue, and I say it as a preliminary injunction,
because I view it as not the final question, final resolution,
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but a resolution that, if the parties are dissatisfied with it,
they can take to the Court of Appeals.
MR. CHATTERJEE: I understand, your Honor. I
understand your point, your Honor. I do think that this
section of the deposition and the online journal, in
particular, the cash flow statement we've already talked about
and the trade secret nature of it, if you want evidentiary
submissions as far as declarations about the confidentiality
concerns of the people, we didn't have time to put those
together. If that will have an impact, your Honor, we're happy
to arrange to provide those.
THE COURT: Right.
MR. CHATTERJEE: From my reading of these cases, this
does invoke the property interest that makes these supporting
documents somewhat separate from the actual commentary. You
are right to say it has some layer of First Amendment
protection, but under Bartnicki and the case law, it appears to
me that that's a substantially reduced one from the actual
commentary and articles themselves.
THE COURT: All right. Do any of the other parties
want to be heard? Mr. Balin, do you want to persuade me that
my initial thoughts are otherwise?
MR. BALIN: No, I don't, your Honor; it's late in the
day.
THE COURT: All right. So, let me rule on this
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orally, in an effort to resolve this promptly. I'm, of course,
guided by the Providence Journal litigation in the First
Circuit, which is the leading case law within this circuit
itself. I'm guided not merely by the substantive result but
also by the procedural demands. They are such as to promptly,
require me promptly to convene a hearing such as we've had or
hearings such as we've had today to deal with what is at the
heart of the First Amendment, at least as it has been
construed.
Now, I said during the course of the argument that
prior restraint law is not altogether coherent. That's not
some insight of my own but one that's shared by counsel who
argued before the Supreme Court perhaps the most important
prior restraint case of the last century, Alexander Bickel, who
argued on behalf of The New York Times in Times - Pentagon
Papers litigation. Whenever I'm confronted with a case such as
this, I have the occasion to recur to Bickel's posthumous book,
The Morality of Consent, the third chapter of which is a
discussion of the First Amendment and, particularly, the
questions of prior restraint and civil disobedience, and Bickel
here offers the observation, and I'll quote, that "The First
Amendment is no coherent theory that points our way to
unambiguous decisions but a series of compromises and
accommodations confronting us again and again with hard
questions to which there is no certain answer." It also, in a
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I think quite thoughtful treatment, ultimately reaches the
conclusion that, and I'll quote again, "The upshot, happily, is
that a whole series of defensive procedural entrenchments lie
between the First Amendment and interests adverse to it. Hence
the direct, ultimate confrontation is rare and when it does
occur, limited and manageable. We thus contrive to avoid most
judgments that we do not know how to make."
Now, we are here presented with what I think is the
obligation to provide a tolerable accommodation of
incommensurables. On the one side is First Amendment demands.
Those are expressed here by the desire of the magazine to
provide a full discussion, from its perspective or that of its
reporter, regarding a topic of some considerable interest, if
one is to assess it by reference to other publicity that has
associated itself with the principles in this case, the case
itself and the larger question of the control of intellectual
property.
I have, in my observations to Mr. Chatterjee in the
course of the discussion, expressed my view, which is that this
form of journalism, which I'll define as publication in the
conventional sense of an article accompanied by opportunities
to review the primary-source material, is in the larger
traditions of the First Amendment, in fact, is perhaps a more
democratic form of expression in the sense that it permits
someone to read the article and then read the source materials,
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at least some of them, and make that person's own judgment
about the way in which the reporter and the magazine have
presented the case, but I said this is an accomodation of
incommensurables, because we have on the other side what we can
call property interest as a gross tag, but really is a series
of concerns about competing privacy rights. One is a
commercial privacy right, the opportunity to protect
commercially important information, another is fundamental
personal privacy, that is, the right of someone to type into
their diary their secret thoughts without having to worry that
someone is going to have a key to the diary. So, I don't, for
a moment, discount the importance of the issues that are raised
by this motion but wish to emphasize that here there is a
tradition in Anglo Saxon jurisprudence against prior
restraints, not against subsequent forms of remedy but against
prior restraints, except in the most compelling circumstances.
It's good to recall what the Providence Journal was
about. It was about the disclosure of those materials that are
kept closest to the breast of the court, wire tap materials.
It's difficult to consider any more secret materials, both in
terms of protecting investigations but also in terms of
protecting the reputations of those who are overheard or
referenced in overhearings, yet there, the First Circuit, in a
fashion that was picked up by the Sixth Circuit in Procter &
Gamble, said that, as a substantive matter, there could be no
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private prior restraint, and, in fact, the Court was chastised
for its failure more promptly to convene and resolve the issue
in the presence of all the interested parties. So, that's the
broad overview of what the dispute is about.
I then turn to the traditional standards for
preliminary injunction, having in mind, as I said to Mr.
Chatterjee in the course of the discussion, that I do believe I
have jurisdiction here, even over a non-party like 02138
pursuant to the All Writs Act, which permits the Court to
consider whether or not there has been incidental violation of
its underlying orders by those who are strangers to the
litigation.
THE COURT: So, with that in mind, I turn, as I've
said, to the conventional standards for preliminary injunction,
having in mind that they take on a special aura in the context
of efforts at prior restraint. First, the likelihood of
success on the merits. Now, what am I talking about with
success of the merits? Success of the merits means, as I
understand it, that the moving party is successful in
convincing me that I should restrain the exercise of
expression, and I mean that in the broad sort of way, to
include even posting a competitors's commercial material.
I'm dealing with this on an interlocutory basis,
because, as I've indicated to the parties, we've had the
opportunity, provisional, of course, for an adversary hearing,
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the receipt of evidence tendered not in a full evidentiary
manner but enough to provide a record, and I do not mean to tap
each drum in the injunctive percussion session by first dealing
with a temporary restraining order, then with a preliminary
injunction, because we've reached the point where I think I can
act on what I will treat as a preliminary injunction, with a
view toward providing the unsuccessful party the opportunity to
obtain interlocutory review, if it seems provident at this
time.
I find no likelihood of success on the merits for the
moving party, Thefacebook here. The reason is that the
documents themselves seem to me to be inextricably intertwined
in the expressive activities of 02138, a party that is not
subject directly to my protective order. Moreover, what 02138
undertook was, it seems to me, core First Amendment activity,
to comment upon matters of public interest. Moreover, the
appending of the source documents is, it seems to me,
fundamentally beneficial to expression, having in mind, of
course, that I must consider whether or not it's also harmful
or violative of some other set of interests. My own view, as
I've expressed it, is that this is a salutary development in
journalism generally, one that one can treat as providing for a
more democratic, if unruly, form of expressive activity.
I have to consider, of course, the question of the
balance of hardships between the non-moving party and the party
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that is defending in the sense that it is arguing against the
issuance of an injunction. With respect to the moving party, I
do not mean in any way to diminish the force of what has been
argued here. We have commercial proprietary information, which
a entity that is now and was at the time of its creation of
that information private, and while, as a matter of public
policy for certain kinds of commercial activity there are
duties of transparency, people can choose to be private
entities, and that choice was made here. We have personal
diary entries, which, as I've said, is as personal as it gets.
We have characterizations of the activities of third parties,
who, at the minimum, will be held up to shame and disrepute in
the course of deposition testimony that the parties themselves
to the litigation sought to keep confidential, and we have
submissions in connection with what's meant to be a private or,
at least, confidential form of disciplinary process in a
college, where, despite the fact that young people today tend
to mature in certain aspects of their life more quickly than
they did in the past has always been viewed as a cauldron for
mistakes or, as our president put it, "The likelihood that
someone who is young and foolish did things when he was young
and foolish." Those are not inconsequential matters, but
stated at that level of generality, I don't think that they're
sufficient to overcome the compelling interests of the
aspiration of First Amendment expression.
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I have focused, as best I can, on the most salient of
the interests. As a consequence, I have not viewed Exhibit 5,
which is the communication between Mr. Zuckerberg and someone
who is involved in some fashion, not altogether clear to me, in
the disciplinary proceedings, but, essentially, while
confidential, seems to me to be Mr. Zuckerberg's exculpatory
statement with regard to activities that were under
consideration.
I turn to the deposition, and while here I might, if I
had editorial judgment that was relevant, be more likely to
constrict the materials disclosed, I acknowledge that a person
who happened to be associated with someone who is identified as
a public figure, anyway, will have her name excised, and that
particular name seemed to me to be at the zenith of concern,
and that has been, at least on the representation of 02138,
removed from the case.
Now, the other individual is subject to
characterization and, as I said, might be held up to shame and
disrepute. To the degree, for example, that the law of
defamation applies under these circumstances without privilege,
that person may have some claim over against 02138. What Mr.
Zuckerberg has is a source of embarrassment for having offered
his views, but it wasn't a voluntary offer, it was one that was
enforced by the fact that he was subject to the obligation to
testify at a deposition. In any event, I do not find here the
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kind of salient interest that would justify the exercise of a
prior restraint.
I turn to the statement of cash flows that has been
identified as commercial and proprietary. It is. It is also,
in this fast-moving area, antiquated, ancient. So much has
happened since this that one can't say that this is anything
other than a bronze shoe in the collection of the baby's
development, certainly not something that has immediate
commercial use.
I turn, finally, to Exhibit 8, which is the online
diary, and here I've expressed my views in a general sort of
way that this is a highly personal matter, and I do not find
that the fact that this has been reproduced in some fashion
already on the internet means anything other than it has a
certain salacious quality to it. There hasn't been presented
to me information that suggests that this was posted by Mr.
Zuckerberg before 02138 got its hands on it.
MR. HORNICK: Your Honor, if I might interrupt, Mr.
Zuckerberg did exactly that.
THE COURT: Well, the state of the record is not clear
enough for me to say that, and if that were the case, of course
that would further diminish the claim to have it subject to a
prior restraint.
MR. HORNICK: Your Honor, if you're interested, I can
read you a quote from The Harvard Crimson.
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THE COURT: As much as I value the The Harvard Crimson
it's not the first place that I look to for matters that will
be resolved without reference to the rules against hearsay,
and, so, thank you, I'm interested in everything, but it wasn't
presented to me before I started to rule, and, in any event, is
a matter that, even if true, is not going to change the ruling
that I make.
Turning now, more specifically, to the matter that I
raised with Mr. Balin, and I encourage him to raise again with
his client, the reference to, the crude and demeaning reference
to a woman in the very first line, I see no reason, and this is
the exercise of my editorial judgment, which is not
determinative in any way, but, perhaps, might be found
persuasive on reflection, to include that name. This seems to
me to be an act of willfulness in service of a principle, the
First Amendment, which doesn't need willfulness to be advanced.
I'm reminded, now that I think about it, that I think
it is in the Loeb Classics, or at least as reported by Walter
Lippman in Loeb Classics, that Thucydides was thought very
highly of as someone who once said that "Men most respect the
power of restraint," and it seems to me that, in that vein, a
magazine from Harvard might think again about using some
restraint with respect to the use of this woman's name, but
even faced with what I consider to be a foolish, willful and
mean-spirited exercise of editorial judgment, I can't say that
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I have been presented with grounds to assert a prior restraint
order.
Now, in dealing with the harms raised by the moving
party, I've necessarily and in a mirror-like fashion referred
to the harms that an injunction would inflict upon the
addressee of this motion. The short of it is that I do believe
under these circumstances there hasn't been shown to be a
justification for inflicting the harm against the First
Amendment which a prior restraint would impose.
I'm finally obligated to consider the public interest,
and to the degree that it's not fully composed in the prior
discussion that I've had, it seems to me that the public
interest does weigh in favor of more generally disclosure and
transparency in litigation matters, that the thrust of ZYPREXA,
perhaps the most recent of the cases dealing in this area, a
kind of omnium-gatherum by Judge Weinstein on these issues,
suggests rather strongly that there are distinctions between
courts enforcing their own orders and the ability of others
outside the Court order to take action that, if done by someone
who is subject to the court order, would be improper and the
subject of contempt. That, of course, is very untidy, that is,
if you're smart enough or lucky enough or sneaky enough to
evade a court order, you're in a better position, but that's
where we are. The exercise of journalism frequently involves
all of those activities, luck, sneakiness, in the service of
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presenting to the public generally a report of matters of
public interest, and, so, it seems to me that it would be a
direct and unacceptable derogation from the public interest to
issue a prior restraint to, in some fashion, restrict the
disclosure of these documents in this form at this time.
Now, I have considered, you know, what I'll call
flotsam and jetsam of practicality. This is related to the
reference to the cat being out of the bag or the kind of
resigned quality in at least one of the DVD cases of not trying
to reach other websites. If a prior restraint were
appropriate, then the Court should take whatever action it can
to deal with that. My decision is not based on practicality or
resignation but, rather, on the principled analysis of what the
First Amendment means in this context for this case.
So, for all of those reasons, I'm denying what I
characterize as a preliminary injunction, and these
observations, obviously, are subject to being tidied up, if it
becomes necessary and appropriate for me to do so, but I mean
to provide the parties who have, quite remarkably, responded
promptly to the occasion, risen to the occasion in their
arguments and briefing and are entitled to a prompt response
from me. Are there any further findings or conclusions that
the parties would have me make?
MR. BALIN: Your Honor, this is Robert Balin. Thank
you for giving us your time today, and I just wanted to note we
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did have a request in our motion to, I suppose, apropos to the
Court's comments about the need for transparency and disclosure
of litigation, we have a request to unseal the papers that were
filed in connection with this important argument on an
important issue, and I would just, I guess, orally make that
motion again to unseal the papers filed by, and your decision,
of course, your Honor, filed by the parties, subject to
redaction of the name on Exhibit 6, page 215, line 9.
THE COURT: Well, let me say two things about that.
One, this has been an open hearing, it's not been closed, the
transcript is or, at least, the stenographer's notes are
available to be reduced to a transcript if anyone seeks to do
that, and I have heard nothing that would suggest to me that
the transcript itself should be redacted. With respect to the
issue of unsealing the submissions, I'll simply look to the
parties to respond relatively promptly to that. I think that a
response by, say, next Friday, will be sufficient with respect
to particulars. My own view, very quickly, is that a good deal
of this can be disclosed, but I do not mean, because, as I said
during the course of my discussion, I am presently considering
the disclosure of or relaxation of the protective order with
respect to matters. I don't mean to pretermit that full
discussion, full consideration by acting precipitously on the
motion made by or request, I should say, made by 02138.
Nevertheless, I do want a response here.
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My view, I think, is that the basic pleadings or
memorandum ought to be disclosed, and I think that the
affidavit in the protective orders can properly be disclosed as
well, but I think what I would ask is that the parties provide
me with a proposal with respect to that. Ms. Ritvo.
MS. RITVO: Your Honor, as to the declaration of Mr.
O'Brien, need that be filed under seal?
THE COURT: I don't think so --
MS.RITVA: Okay.
THE COURT: -- unless he makes reference to the
substance of a confidential document or a matter that is under
seal. To the degree that he simply says, I made a copy of the
document that's identified as Exhibit 5, without identifying
the substance of it, then I don't think it needs to be under
seal here.
MR. CHATTERJEE: Your Honor, I guess there is one
housekeeping -- thank you for your time, by the way, and I
appreciate your time on making the ruling.
THE COURT: All right.
MR. CHATTERJEE: I guess the one remaining issue in my
mind is the 02183 magazine has identified that they do --
THE COURT: 02183 or 38?
MR. CHATTERJEE: 38, I'm sorry.
THE COURT: I've worked so hard at trying to get it
right, and I hoped that I hadn't been getting it wrong all
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along.
MR. CHATTERJEE: I'm sure I have been, because I keep
getting it wrong, your Honor, on the magazine name, but they've
identified that they do have a number of other documents, and
they may or may not choose to use them. I submit, your Honor,
that before that it is not -- no longer a prior restraint issue
as to those documents, if they intend to publish those on the
web, and I think we're entitled to know what they are so we can
seek court protection, if necessary, before they try and put
any of that material on the web.
THE COURT: I think my answer to that is, to the
degree that that's an effort to expand the motion that's been
requested, I'm going to deny it, because it works indirectly as
to the prior restraint here, but I do believe that Mr. Balin,
on behalf of his clients, has been forthcoming in response to
the various issues, but I believe that they're aware of the
various issues, and they're going to be providing us with some,
what I will call voluntary discovery with respect to the
issues. I, at the risk of sounding like the person that
Professor Freund used to say, "The lawyer most feared by judges
is the lawyer who knew how to spell banana but didn't know when
to stop," I urge Mr. Balin to talk again to his client about
the name that they have apparently chosen to continue to
include on the web, and I will ask him to report to us whether
the client, after thoughtful review, has a different view than
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has been expected here, but as to telling us in advance about
the intention to post something on the web, I am simply not
prepared to do that.
MR. CHATTERJEE: Oh, I'm sorry, your Honor, if I was
confusing, I didn't mean to suggest that. What I just want to
know is what documents do they have, so if we want to seek
protection, we can get that vetted now.
THE COURT: Well, I guess I'm not going to do
preliminary -- if there is not a immediate need to deal with
it, then I'm not going to deal with a list of things that are
subject to the protective order. I will say this, that, to the
degree it becomes necessary to think about this for the
discovery, and now we're on to the discovery or I will shortly
be on to the discovery aspect of this, I would consider whether
or not to require some disclosure of documents that they have
seen to be confidential.
MR. CHATTERJEE: I appreciate that, your Honor. I was
actually collapsing the two issues, and I apologize for that.
THE COURT: All right. So, now let's move on to the
question of discovery, which, obviously, is further developed
by Mr. Balin's report and will be further developed by whatever
the affidavits are here, but doesn't Mr. Balin's report of what
is likely to be in the affidavit provide an explanation for all
of the disclosure that is inconsistent with, or not
inconsistent, but provides an explanation for all of the
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disclosure apart from disclosure from the parties?
MR. CHATTERJEE: It could very well, your Honor.
THE COURT: Okay. Then, what I think I would like to
do, I know I asked the parties to talk about a discovery
schedule, but in light of that, I think I would like the
parties to review the affidavit or declarations that are
submitted and then make a proposal, if a proposal is necessary,
for further discovery, on December -- on the next Friday, which
is December 7, is it? I don't mean to pick D-Day as the
occasion, or I should say Pearl Harbor Day as the occasion for
this, but that's where it is in the calendar, and that will
give the parties an opportunity to reflect on whether or not
there is an adequate, independent grounds or source for all of
this material for Mr. O'Brien in his activities.
MR. CHATTERJEE: Thank you, your Honor, and, your
Honor, if I may ask, if there is a problem in the First Circuit
about confidential documents being available --
THE COURT: You bet there is an intention on the part
of me and our Clerk's Office to get to the bottom of it, and
that will be part of the process. I don't know what form, if
any, a report would take to you, except to say that there is
nothing inconsistent with Mr. O'Brien's anticipated declaration
that has been learned to date about it, and I, because I'm
particularly interested in it, and the clerks will be getting
to the bottom of it.
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MR. CHATTERJEE: I appreciate that, your Honor,
because it is, I think it is important for our clients to have
confidence that disclosing things to the Court system under
seal, that they will remain under seal.
THE COURT: Absolutely. It's not just your client,
it's every client, and while I have, as I probably tried to
communicate, an austere view of what needs to be subject to a
protective order, once it is, and so long as it is, the Court
has an obligation to enforce it itself, an independent
obligation to enforce it itself. That, in fact, is, you know,
part of the problematic dimension to Providence Journal, I
suppose, is that it may be read, at least by some, although not
fully developed, to collide with Shuttlesworth in permitting
certain parties to evade their responsibilities, but the Court
has an independent responsibility to try to get to the bottom
of it, and if there is something that is inconsistent, as an
evidentiary matter, with what Mr. O'Brien has to say, I'll
bring that to your attention, but I've not yet decided what
kind of disclosure, if any, needs to be taken. I view it as an
administrative matter in this setting, although, obviously, a
matter of some real and justifiable concern by the parties.
MR. CHATTERJEE: Thank you, your Honor, and just to go
back to the earlier point that I had raised earlier, but it's
probably more appropriate for this discussion, in addition to
those declarations, we would like the discovery of what
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documents they do have, because if they did get hold of
documents that we are concerned about as being confidential, we
would like to know that so we can seek Court ruling for --
THE COURT: Well, I guess, Mr. Balin, you've heard the
request; you'll consider whether or not to include an answer in
the declaration.
MR. BALIN: Right, your Honor.
THE COURT: It may save everybody a good deal of time
if you answer it. I'm not sure that you, now having tested the
waters, will consider yourself concerned about, in some
fashion, giving up your First Amendment rights, and it may
occur to you that this is just a way of avoiding further
litigation activity, but I leave that to you, and we'll go from
there to see how we're going to deal with it, but I am not now
ordering, specifically ordering that.
MR. BALIN: Thank you, your Honor.
THE COURT: Okay.
MR. CHATTERJEE: Thank you, your Honor, and just as a
final matter, going back to the administrative check that your
Honor's checking.
THE COURT: Right.
MR. CHATTERJEE: Obviously, the fact that these
materials were available that came up in a Wall Street Journal
article this morning, for example, including the under-seal
documents, it's now out there. If there's anything that your
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Honor can do to make sure that those informations --
THE COURT: Well, I think the Clerk's Office has a
heightened concern about documents in this case, both of those
clerk's offices do, and my concern is to deal with it properly
as an administrative matter, rather than a finger-pointing
exercise.
MR. CHATTERJEE: And I agree with you, your Honor. I
just want to make sure that my client's interests are protected
as best as possible.
THE COURT: All right. I understand that, and I think
we'll be doing our best to deal with that, and if the parties
have further requests, I'm a member of the Clean Plate Club;
somebody serves it up, sooner or later I'll consume it, digest
it and respond. Now, is there anything else from the other
parties here?
MR. BALIN: No, your Honor.
THE COURT: Okay. All right. Then, we'll stand in
recess. Thank you.
(Hearing concluded at 5:10 p.m.)
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108
C E R T I F I C A T E
I, Brenda K. Hancock, RMR, CRR and Official Reporter
of the United States District Court, do hereby certify that the
foregoing transcript, from Page 1 to Page 109, constitutes, to
the best of my skill and ability, a true and accurate
transcription of my stenotype notes taken in the matter of
ConnectU v. Facebook, 1:07-CV-10593-DPW and 1:04-CV-11923-DPW.
/s/ Brenda K. Hancock
Brenda K. Hancock, RMR, CRR
Official Court Reporter
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Appearance [10] - 2:8,2:9, 2:9, 2:13, 2:13,2:14, 3:2, 3:8, 3:10,4:5
appearance [1] - 25:4Appearances [2] -
2:25, 3:23APPEARANCES [1] -
2:1appeared [1] - 63:24appearing [1] - 5:8appellate [9] - 7:18,
7:24, 12:9, 12:13,12:23, 13:11, 23:5,
42:15appending [1] - 93:17appendix [6] - 7:10,
15:8, 15:15, 15:20,41:8, 78:12
application [12] -7:23, 8:16, 49:11,49:23, 50:6, 50:10,50:16, 50:18, 63:11,63:20, 66:21, 67:15
applies [2] - 83:9,95:20
appreciate [8] - 42:11,46:7, 50:14, 50:15,58:7, 101:18,103:17, 105:1
appreciation [1] -74:25
approach [3] - 44:3,65:5, 65:23
approaches [1] -18:24
appropriate [7] -53:18, 53:20, 73:24,77:25, 99:11, 99:18,105:24
appropriately [1] -56:9
appropriating [2] -80:6, 80:7
apropos [1] - 100:1architected [1] - 44:3area [6] - 18:10, 42:5,
47:22, 50:23, 96:5,98:15
areas [3] - 15:12,18:13, 42:9
argued [4] - 28:25,89:13, 89:15, 94:4
arguing [2] - 80:3,94:1
argument [7] - 6:11,7:19, 15:25, 18:6,84:19, 89:10, 100:4
arguments [1] - 99:21arise [1] - 24:15arises [1] - 60:14arose [1] - 20:5arrange [1] - 88:11article [17] - 6:24,
30:2, 30:3, 38:23,38:24, 39:13, 52:9,61:3, 65:15, 73:12,75:21, 80:20, 85:24,86:4, 90:21, 90:25,106:24
articles [3] - 5:19,83:17, 88:19
articulate [2] - 18:21,18:22
artificial [1] - 80:22ascertain [1] - 14:25aspect [4] - 10:19,
11:6, 36:8, 103:14aspects [4] - 11:3,
60:1, 85:2, 94:18aspiration [1] - 94:25assert [1] - 98:1assess [1] - 90:14assessment [1] -
41:10assistance [1] - 40:19associated [7] - 32:4,
38:24, 40:1, 46:23,54:16, 90:15, 95:12
Association [4] -64:12, 79:19, 83:14,86:8
Associations [1] -65:1
assume [9] - 28:17,30:25, 37:12, 39:14,48:12, 48:13, 53:8,65:7, 76:6
assuming [1] - 30:8assumption [7] - 30:8,
30:9, 46:10, 58:6,58:16, 62:21, 77:8
attach [3] - 13:16,83:11
attached [6] - 7:24,12:5, 17:10, 22:24,23:4, 57:6
attachments [1] -11:24
attempt [1] - 55:23attention [6] - 6:7,
14:14, 56:12, 61:17,64:1, 105:18
attorney [1] - 14:18aura [1] - 92:15austere [1] - 105:7author [1] - 6:24authorized [1] - 48:14available [16] - 9:16,
10:3, 17:25, 32:7,32:9, 32:10, 32:12,32:13, 39:1, 57:18,57:24, 79:25, 81:18,100:12, 104:17,106:23
avatar [1] - 31:1Avenue [3] - 2:11,
2:15, 3:14avoid [2] - 40:24, 90:6avoiding [1] - 106:12aware [5] - 12:20,
55:24, 87:12, 102:16awfully [1] - 23:12
Bbaby's [1] - 96:7back-and-forth [1] -
55:9bad [1] - 74:15bag [3] - 28:19, 40:8,
99:8bags [1] - 24:4balance [1] - 93:25balancing [2] - 26:23,
26:24Balin [43] - 4:5, 14:17,
15:11, 17:17, 24:8,24:19, 24:23, 25:2,26:4, 28:12, 30:7,36:9, 36:22, 38:21,39:18, 40:5, 40:6,53:19, 53:22, 56:1,59:11, 63:10, 63:12,64:16, 66:7, 66:9,66:15, 67:3, 69:25,70:6, 70:16, 70:17,76:17, 77:7, 77:22,87:6, 88:21, 97:9,99:24, 102:14,102:22, 106:4
BALIN [81] - 14:17,14:20, 14:25, 15:24,16:3, 16:7, 16:11,16:20, 17:20, 18:11,18:14, 24:13, 25:9,25:18, 26:6, 28:16,28:22, 29:2, 30:14,30:19, 30:24, 31:10,31:14, 36:23, 36:25,37:4, 39:3, 39:8,39:20, 53:19, 54:1,58:19, 59:2, 59:13,59:18, 59:24, 60:7,60:10, 61:7, 63:15,63:19, 63:22, 66:8,66:11, 66:18, 66:24,70:7, 70:9, 70:13,70:21, 71:3, 71:7,71:10, 71:18, 71:23,72:4, 72:8, 72:10,72:12, 72:15, 72:18,73:2, 73:6, 73:9,73:15, 73:21, 74:10,75:7, 75:11, 75:18,76:4, 76:9, 76:11,77:12, 77:16, 77:19,88:23, 99:24, 106:7,106:16, 107:16
Balin's [3] - 58:16,103:21, 103:22
banana [1] - 102:21Bar [1] - 24:23Bartnicki [6] - 5:23,
2
82:23, 83:2, 83:12,85:16, 88:17
based [1] - 99:12basic [1] - 101:1basis [3] - 5:15, 81:15,
92:23Batten [1] - 3:2Bauer [3] - 3:1, 3:19,
64:6Bea [1] - 2:14became [1] - 16:25become [1] - 39:12becomes [2] - 99:18,
103:12becoming [1] - 27:18BEFORE [1] - 1:11beginning [3] - 15:12,
44:4, 49:17begins [2] - 33:14,
87:11behalf [4] - 6:19,
76:17, 89:15, 102:15behavior [1] - 34:4bell [1] - 40:8belong [1] - 83:8beneficial [1] - 93:18benefit [2] - 78:3,
83:24benefits [1] - 80:13best [8] - 15:1, 60:22,
70:24, 75:18, 95:1,107:9, 107:11, 108:7
bet [1] - 104:18better [5] - 36:14,
43:20, 54:4, 61:8,98:23
between [18] - 5:25,8:19, 15:14, 19:12,27:13, 33:24, 53:23,55:21, 58:4, 61:13,65:14, 79:4, 79:22,83:13, 90:4, 93:25,95:3, 98:17
beyond [2] - 31:6,41:8
Bickel [2] - 89:14,89:20
Bickel's [1] - 89:17big [1] - 23:12binding [1] - 39:6bit [9] - 10:12, 15:14,
23:17, 30:7, 43:3,54:7, 56:2, 66:20,80:2
blog [1] - 40:19blogs [1] - 39:25blood [1] - 31:18Board [6] - 19:11,
19:23, 20:8, 20:12,21:25, 48:6
Bob [1] - 8:23book [1] - 89:17Boston [7] - 1:17,
1:23, 2:7, 3:4, 3:15,3:21, 4:4
bottom [6] - 7:11,22:18, 45:2, 104:19,104:25, 105:15
bound [1] - 86:24boxes [1] - 15:6Boy [1] - 64:13break [6] - 10:11,
37:9, 55:25, 61:22,79:15, 79:18
breast [1] - 91:19breath [1] - 52:14Brenda [4] - 1:21,
108:4, 108:15,108:16
brief [3] - 6:13, 12:19,28:13
briefing [1] - 99:21briefs [1] - 80:17bring [3] - 11:10,
61:17, 105:18broad [2] - 92:4, 92:21broadly [1] - 61:14Broadway [1] - 4:7bronze [1] - 96:7brothers [1] - 46:17brought [7] - 6:6,
11:9, 14:14, 15:5,24:2, 56:12, 64:1
BROWN [1] - 4:3Bunner [1] - 79:19burdening [1] - 60:12Bush [1] - 3:9business [4] - 30:17,
34:3, 56:12, 71:25button [1] - 75:7
CCA [4] - 2:24, 3:9,
3:12, 3:17Cal.4th [1] - 64:20CALAMARI [8] -
43:12, 43:14, 43:20,54:3, 54:8, 54:12,54:15, 55:5
Calamari [8] - 2:13,43:14, 43:16, 43:17,47:19, 54:3, 55:7,64:17
calendar [1] - 104:11California [2] - 64:20,
65:7call-in [1] - 64:7candor [1] - 26:13cannot [4] - 29:12,
37:18, 58:19, 75:14capable [1] - 84:25capital [1] - 72:23capitalists [1] - 33:2card [1] - 15:5care [1] - 70:4careful [1] - 40:16carefully [5] - 52:15,
52:20, 60:20, 60:23,71:4
case [60] - 5:3, 5:23,6:2, 11:16, 18:8,18:10, 18:15, 22:21,23:21, 25:4, 27:14,34:15, 34:20, 35:1,35:5, 35:7, 40:14,40:24, 42:14, 42:15,44:9, 44:10, 47:1,48:3, 49:14, 49:24,50:11, 50:16, 62:23,64:21, 64:23, 64:25,65:17, 65:21, 74:13,74:15, 78:12, 79:19,79:21, 80:4, 82:9,82:23, 82:24, 83:12,83:14, 87:20, 88:17,89:3, 89:14, 89:16,90:15, 91:3, 95:16,96:21, 99:14, 107:3
cases [14] - 15:16,64:8, 64:10, 64:11,65:7, 65:10, 65:19,65:20, 65:24, 80:17,84:13, 88:13, 98:15,99:9
cash [13] - 7:14,12:12, 21:2, 23:3,23:10, 31:21, 32:17,37:1, 46:18, 72:19,79:16, 88:6, 96:3
cat [3] - 28:19, 40:8,99:8
catch [2] - 49:17,66:19
categorical [2] -18:24, 29:16
cauldron [1] - 94:19causing [1] - 33:21CD [6] - 22:14, 22:15,
45:3, 56:24, 57:7Center [1] - 4:4century [1] - 89:14certain [19] - 7:25,
8:12, 9:7, 12:6,13:19, 15:16, 29:12,29:14, 47:7, 51:9,55:3, 62:22, 84:3,84:6, 89:25, 94:7,94:18, 96:15, 105:14
Certainly [1] - 52:8
certainly [6] - 10:16,46:16, 55:11, 59:13,85:5, 96:8
certify [1] - 108:5challenges [1] - 29:19Change [1] - 82:7change [2] - 34:4,
97:6changes [5] - 8:10,
8:12, 34:8, 58:3,61:16
chapter [1] - 89:18characterization [1] -
95:18characterizations [1] -
94:11characterize [1] -
99:16chastised [1] - 92:1chat [1] - 72:1Chatterjee [20] - 2:22,
3:16, 5:10, 16:21,18:18, 25:21, 26:8,37:12, 39:18, 43:24,56:24, 62:4, 66:14,66:20, 66:25, 71:13,76:24, 78:20, 90:18,92:7
CHATTERJEE [153] -5:14, 6:8, 6:17, 6:21,7:8, 8:5, 8:14, 8:23,9:2, 9:22, 10:15,11:2, 11:15, 11:22,12:3, 12:10, 13:14,14:4, 16:22, 17:8,17:13, 17:16, 18:25,19:3, 19:6, 19:12,19:17, 19:20, 19:24,20:13, 20:16, 20:23,21:1, 21:10, 21:12,21:17, 21:23, 22:2,22:5, 22:9, 22:13,22:23, 23:2, 23:15,23:23, 24:1, 24:4,25:22, 26:1, 26:12,27:1, 27:3, 27:8,27:12, 28:6, 29:11,29:18, 31:24, 32:7,32:18, 32:24, 33:4,33:9, 33:17, 33:21,34:2, 34:22, 35:18,38:13, 39:23, 40:21,41:3, 41:25, 42:11,42:13, 43:7, 44:2,44:16, 44:21, 44:25,45:7, 45:11, 45:14,45:17, 45:20, 45:25,46:4, 46:15, 47:2,47:6, 47:12, 47:25,48:10, 48:16, 48:19,
48:22, 48:25, 49:2,49:4, 49:10, 49:18,49:22, 50:17, 50:20,50:22, 51:1, 51:5,51:18, 51:23, 59:4,63:16, 63:23, 64:5,64:10, 64:14, 64:18,64:20, 65:9, 65:14,65:19, 66:1, 76:18,78:22, 79:8, 79:12,79:18, 79:21, 80:23,81:4, 81:23, 82:20,83:1, 84:11, 85:5,85:25, 86:6, 86:20,87:21, 88:3, 88:13,101:16, 101:20,101:23, 102:2,103:4, 103:17,104:2, 104:15,105:1, 105:22,106:18, 106:22,107:7
Chatterjee's [1] -75:12
check [6] - 26:1,42:22, 44:4, 59:20,62:5, 106:19
checking [1] - 106:20chime [1] - 53:21choice [3] - 86:5, 86:7,
94:9choose [2] - 94:8,
102:5chosen [1] - 102:23CHRISTOPHER [1] -
1:7Christopher [1] - 2:20Circuit [27] - 7:1, 7:3,
7:10, 7:11, 12:21,12:24, 13:4, 13:8,14:1, 15:4, 15:16,15:18, 15:19, 41:8,44:8, 53:5, 67:16,68:6, 68:7, 68:12,78:13, 81:2, 83:25,89:3, 91:23, 91:24,104:16
circuit [1] - 89:3circumstance [1] -
83:23circumstances [8] -
24:11, 26:20, 81:19,84:8, 87:4, 91:16,95:20, 98:7
citation [3] - 28:3,64:22, 65:2
citations [3] - 6:9,40:24, 64:18
cite [2] - 28:3, 28:15cited [2] - 6:2, 64:22
3
cites [1] - 64:17citing [1] - 65:10Civil [3] - 1:5, 5:3, 5:4civil [1] - 89:20claim [2] - 95:21,
96:22claiming [1] - 47:17Clara [1] - 65:3Classics [2] - 97:18,
97:19Clean [1] - 107:12clean [1] - 67:21clear [14] - 5:23,
13:10, 19:3, 29:3,29:21, 44:2, 55:13,63:19, 70:23, 78:1,86:19, 87:8, 95:4,96:20
clerical [1] - 44:7CLERK [2] - 5:2, 66:5clerk [2] - 15:5, 15:10clerk's [5] - 6:24, 14:2,
55:15, 78:19, 107:4Clerk's [11] - 15:4,
16:6, 68:7, 78:4,78:5, 78:6, 78:10,82:17, 104:19, 107:2
clerks [2] - 40:15,104:24
client [21] - 18:16,25:10, 26:5, 30:10,30:13, 31:15, 31:19,39:8, 56:1, 59:13,59:15, 59:19, 60:20,63:10, 75:9, 75:15,97:10, 102:22,102:25, 105:5, 105:6
client's [2] - 24:9,107:8
clients [11] - 36:9,36:19, 52:5, 52:23,53:11, 67:8, 74:23,83:7, 102:15, 105:2
closed [1] - 100:10closest [1] - 91:19Club [1] - 107:12Coast [1] - 8:25code [3] - 83:19,
84:14, 84:15coherent [3] - 37:20,
89:11, 89:22collapsing [1] -
103:18colleague [1] - 67:3collection [1] - 96:7college [4] - 49:23,
85:13, 85:19, 94:17collide [1] - 105:13Collings [2] - 35:9,
35:21
com [1] - 28:5comfortable [1] - 56:5comment [1] - 93:16commentary [11] -
5:19, 5:21, 5:25,10:14, 39:25, 51:7,65:15, 83:17, 84:15,88:15, 88:19
commenting [1] -79:25
comments [4] - 51:11,80:24, 86:13, 100:2
commercial [7] -84:25, 91:7, 92:22,94:4, 94:7, 96:4,96:9
commercially [1] -91:8
committing [1] - 60:24common [1] - 39:12communicate [1] -
105:7communicated [1] -
16:8communication [2] -
60:4, 95:3communications [3] -
42:23, 75:23, 79:13companies [4] - 21:3,
21:4, 32:19, 33:12company [6] - 21:7,
21:14, 32:11, 32:17,32:20, 72:20
compare [2] - 44:17,48:4
comparison [1] - 49:6compelling [4] -
81:15, 84:23, 91:16,94:24
competent [1] - 38:7competing [4] - 33:10,
81:24, 82:21, 91:6competition [1] -
33:11competitive [4] -
32:15, 32:16, 33:8,36:18
competitively [1] -34:3
competitor [1] - 34:8competitors [1] - 33:9competitors's [1] -
92:22complaining [1] -
16:13complaint [11] - 9:25,
12:5, 12:25, 13:2,13:4, 13:17, 22:24,23:5, 34:25, 44:15,58:5
complete [4] - 6:22,23:18, 42:21, 77:4
completely [1] - 85:8complicated [1] - 19:8composed [1] - 98:11comprehensive [1] -
61:1compromises [1] -
89:23Computer [1] - 1:24computer [4] - 58:13,
59:10, 67:5, 67:23computers [2] - 22:4,
22:6concede [1] - 33:13concept [1] - 55:2concern [21] - 18:20,
18:22, 20:17, 20:19,21:19, 25:19, 27:16,31:15, 33:22, 36:13,39:24, 41:14, 44:5,65:11, 74:11, 83:4,85:7, 95:14, 105:21,107:3, 107:4
concerned [14] -25:13, 25:16, 30:16,31:8, 31:16, 42:7,43:22, 60:11, 66:25,71:14, 74:2, 82:8,106:2, 106:10
concerns [3] - 76:24,88:9, 91:6
concluded [1] -107:19
conclusion [3] -30:15, 30:17, 90:2
conclusions [2] -74:12, 99:22
conduct [1] - 46:11confer [3] - 27:1, 27:5,
35:11conference [1] - 42:25confidence [1] - 105:3Confidential [2] -
22:15, 45:19confidential [22] -
5:22, 14:12, 21:3,21:6, 21:13, 22:18,26:20, 26:21, 38:17,39:1, 45:2, 45:3,45:6, 52:10, 68:21,94:14, 94:16, 95:6,101:11, 103:16,104:17, 106:2
confidentiality [4] -35:20, 44:11, 45:5,88:8
confines [1] - 31:6confirm [4] - 7:17,
25:23, 46:5, 70:10
confirmation [1] -14:11
confirming [1] - 23:3conflict [1] - 14:23conflicting [1] - 11:11confrontation [1] -
90:5confronted [2] -
11:11, 89:16confronting [1] -
89:24confusing [1] - 103:5conjoined [1] - 84:7connection [14] -
11:19, 21:25, 22:21,43:18, 44:14, 68:4,69:22, 75:19, 77:7,78:2, 82:10, 86:4,94:15, 100:4
CONNECTU [1] - 1:4ConnectU [17] - 2:3,
5:4, 10:14, 35:9,35:12, 42:19, 43:10,46:8, 47:4, 47:10,48:3, 52:2, 54:16,56:13, 56:23, 62:15,108:9
ConnectU's [2] -34:14, 57:5
Consent [1] - 89:18consequence [1] -
95:2consequently [1] -
73:23consider [15] - 25:12,
31:20, 43:5, 55:13,72:23, 84:19, 91:20,92:10, 93:19, 93:24,97:24, 98:10,103:14, 106:5,106:10
considerable [2] -87:3, 90:13
considerably [1] -31:25
consideration [6] -55:11, 81:22, 81:24,82:21, 95:8, 100:23
considered [5] -12:21, 34:3, 52:20,59:5, 99:6
considering [4] - 64:7,70:14, 71:16, 100:20
consistency [1] -74:23
consistent [1] - 78:8constitutes [1] - 108:6Constitutional [3] -
18:4, 81:24, 82:18constraint [2] - 37:15
constraints [1] - 37:18constrict [1] - 95:11construed [1] - 89:9consult [10] - 26:4,
29:16, 30:12, 31:19,36:9, 36:19, 36:21,37:4, 56:1, 74:22
consulted [1] - 78:4consulting [1] - 28:1consume [1] - 107:13contemporaneously
[1] - 82:13Contempt [1] - 34:15contempt [5] - 10:20,
35:8, 35:12, 35:13,98:21
content [3] - 44:17,65:11, 83:16
context [5] - 36:16,82:12, 86:11, 92:15,99:14
continuation [1] -43:8
continue [5] - 12:1,25:7, 37:16, 78:16,102:23
Continued [1] - 2:25continued [1] - 3:23contrive [1] - 90:6Control [5] - 64:12,
65:1, 79:19, 83:14,86:8
control [5] - 10:25,31:7, 40:10, 40:18,90:16
convene [2] - 89:6,92:2
convenience [1] -57:7
conventional [2] -90:21, 92:14
conversations [1] -27:18
conversion [1] - 57:16converted [4] - 9:15,
57:13, 59:7, 69:1converting [1] - 57:7convincing [1] - 92:20copied [3] - 68:12,
68:13, 69:4copies [9] - 15:19,
65:4, 69:7, 69:9,69:11, 69:13, 69:14,69:20, 78:10
copy [16] - 6:16, 9:14,13:24, 50:20, 51:21,57:12, 57:25, 58:23,64:14, 65:25, 68:13,68:24, 69:9, 69:24,101:12
4
Copy [1] - 79:19copying [1] - 70:20Copyright [4] - 64:11,
65:1, 83:14, 86:8core [6] - 21:5, 80:4,
80:14, 81:10, 81:11,93:15
corner [1] - 57:20correct [8] - 13:15,
16:16, 23:15, 26:2,29:18, 60:7, 60:18,72:12
Correct [5] - 16:7,17:16, 29:18, 51:18,73:6
corrected [1] - 16:14correcting [1] - 49:12correction [1] - 48:15corrections [3] -
48:12, 50:7, 50:12correctly [1] - 79:9correlated [1] - 14:10counsel [12] - 5:7,
14:23, 15:1, 17:22,24:20, 27:4, 27:10,46:23, 47:23, 62:16,89:12
counsel's [2] - 15:25,18:6
couple [4] - 21:12,40:24, 41:5, 52:4
course [27] - 5:6, 18:1,18:2, 21:4, 25:10,30:20, 31:14, 37:4,53:24, 61:10, 63:13,66:19, 67:1, 75:9,77:23, 89:1, 89:10,90:19, 92:7, 92:25,93:19, 93:24, 94:13,96:21, 98:21, 100:7,100:20
COURT [295] - 1:1,5:5, 6:5, 6:14, 6:20,7:5, 8:3, 8:13, 8:22,8:25, 9:19, 10:11,10:18, 11:3, 11:16,11:25, 12:7, 12:16,13:6, 13:13, 13:20,14:13, 14:19, 14:24,15:11, 16:1, 16:4,16:9, 16:18, 16:21,17:5, 17:12, 17:15,17:17, 18:9, 18:12,18:18, 19:2, 19:5,19:9, 19:16, 19:18,19:22, 20:2, 20:9,20:11, 20:15, 20:21,20:25, 21:8, 21:11,21:16, 21:21, 21:24,22:3, 22:8, 22:10,
22:19, 23:1, 23:6,23:13, 23:16, 23:25,24:2, 24:7, 24:14,24:18, 24:21, 24:25,25:2, 25:6, 25:15,25:24, 26:3, 26:7,26:15, 27:2, 27:6,27:11, 27:24, 28:12,28:21, 28:25, 29:9,29:14, 30:5, 30:16,30:21, 30:25, 31:12,31:16, 32:6, 32:9,32:22, 32:25, 33:6,33:13, 33:20, 33:24,34:10, 34:13, 34:17,34:19, 35:2, 35:4,35:6, 35:17, 35:24,36:3, 36:6, 36:24,37:3, 37:6, 38:21,39:4, 39:11, 39:22,40:5, 41:2, 41:14,42:3, 42:12, 43:1,43:8, 43:13, 43:16,43:21, 44:13, 44:20,44:24, 45:4, 45:9,45:12, 45:15, 45:18,45:24, 46:2, 46:13,46:25, 47:5, 47:11,47:19, 48:8, 48:15,48:17, 48:21, 48:23,49:1, 49:3, 49:8,49:20, 50:13, 50:19,50:21, 50:24, 51:4,51:12, 51:22, 51:25,52:12, 53:2, 53:11,53:15, 53:22, 54:5,54:10, 54:14, 54:25,55:7, 56:18, 57:1,57:3, 57:21, 58:6,58:11, 58:15, 58:20,59:3, 59:9, 59:15,59:21, 59:25, 60:8,60:11, 60:19, 61:12,61:25, 62:8, 62:17,63:12, 63:21, 63:24,64:9, 64:13, 64:16,64:19, 65:6, 65:13,65:18, 65:24, 66:3,66:7, 66:9, 66:15,66:23, 67:2, 67:9,67:13, 68:1, 68:4,68:7, 68:9, 68:20,68:25, 69:6, 69:11,69:17, 69:19, 69:22,70:4, 70:8, 70:12,70:15, 70:18, 70:23,71:5, 71:8, 71:17,71:21, 72:3, 72:7,72:9, 72:11, 72:14,72:17, 73:1, 73:5,73:8, 73:13, 73:20,
73:22, 74:18, 75:10,75:16, 76:2, 76:8,76:10, 76:15, 76:22,77:7, 77:14, 77:18,77:21, 78:2, 78:24,79:11, 79:17, 79:20,80:2, 81:3, 81:9,82:4, 82:25, 83:21,84:17, 85:18, 86:3,86:18, 86:22, 87:23,88:12, 88:20, 88:25,92:13, 96:20, 97:1,100:9, 101:8,101:10, 101:19,101:22, 101:24,102:11, 103:8,103:19, 104:3,104:18, 105:5,106:4, 106:8,106:17, 106:21,107:2, 107:10,107:17
court [42] - 5:9, 7:24,9:13, 9:24, 13:24,13:25, 14:6, 14:16,36:7, 38:6, 40:1,41:18, 42:14, 42:15,42:20, 43:4, 44:12,45:7, 45:8, 46:1,46:5, 54:6, 54:20,55:14, 57:24, 57:25,59:17, 62:4, 62:5,62:22, 66:16, 67:10,68:2, 68:19, 69:10,70:11, 77:25, 81:15,91:19, 98:20, 98:23,102:9
Court [61] - 1:22, 5:2,5:16, 6:19, 6:25, 7:3,7:7, 7:10, 9:18, 9:20,14:9, 15:2, 15:8,15:17, 15:20, 16:6,19:14, 31:7, 41:20,44:4, 45:1, 45:16,51:2, 51:6, 53:5,57:18, 58:23, 62:11,64:21, 65:2, 65:3,65:22, 66:5, 67:16,68:5, 68:11, 68:23,77:24, 78:5, 78:6,78:10, 78:19, 78:20,83:2, 87:14, 87:15,87:17, 88:2, 89:13,92:1, 92:9, 98:19,99:11, 105:3, 105:8,105:14, 106:3,108:5, 108:17
court's [3] - 13:12,44:6, 55:15
Court's [8] - 5:18,10:25, 11:1, 66:25,
69:9, 77:17, 82:22,100:2
courthouse [1] -78:18
Courthouse [4] - 1:16,1:17, 1:22, 1:23
courtroom [1] - 13:21Courtroom [1] - 1:16courts [2] - 41:23,
98:18Courts [1] - 15:9cover [1] - 77:10covered [1] - 55:16create [1] - 39:17created [4] - 10:5,
57:9, 57:15, 83:6creates [2] - 59:6, 84:3creation [1] - 94:5Crimson [4] - 30:2,
96:25, 97:1CRR [3] - 1:21, 108:4,
108:16crude [1] - 97:10crunch [1] - 60:21Culman [2] - 8:23,
8:24culture [1] - 71:25current [3] - 33:1,
38:23, 42:15curtailed [1] - 35:22cyberspace [1] - 75:4
DD-Day [1] - 104:9damage [1] - 81:20dangerous [1] - 52:18dangers [2] - 54:10,
80:14Daniel [3] - 2:5, 3:13,
52:1data [1] - 9:17database [1] - 22:17date [9] - 36:3, 56:21,
56:22, 57:8, 57:20,58:8, 58:11, 104:23
dated [1] - 47:8daunting [1] - 40:7DAVIS [1] - 4:7Davis [2] - 14:18,
67:12days [3] - 10:7, 47:8,
52:4DC [1] - 2:11deal [20] - 10:18,
10:19, 33:3, 38:20,42:21, 44:9, 59:9,65:7, 78:24, 82:9,82:13, 89:7, 99:12,100:18, 103:9,
103:10, 106:8,106:14, 107:4,107:11
dealing [8] - 21:8,24:6, 74:21, 84:21,92:23, 93:3, 98:3,98:15
dealt [2] - 35:8, 64:25December [3] - 33:25,
104:8, 104:9decided [1] - 105:18decides [1] - 64:24decision [3] - 86:7,
99:12, 100:6decisions [2] - 30:18,
89:23declaration [21] -
7:20, 14:16, 17:10,53:4, 53:10, 59:12,60:15, 61:1, 61:11,61:18, 62:25, 70:9,70:19, 76:25, 77:3,77:9, 101:6, 104:22,106:6
declarations [10] -52:4, 52:6, 52:21,53:16, 69:25, 70:3,77:15, 88:8, 104:6,105:25
decline [2] - 18:17,72:2
declined [1] - 83:2Dedalus [1] - 85:22deems [1] - 77:24deep [1] - 52:14deeper [1] - 55:20defamation [2] -
74:19, 95:20Defendant [1] - 3:6defendants [1] - 54:21Defendants [2] - 1:9,
2:18defending [1] - 94:1defense [2] - 40:14,
87:13defensive [1] - 90:3define [1] - 90:20defined [1] - 61:15defining [1] - 78:11definite [1] - 8:19definition [1] - 80:5degrades [1] - 51:21degree [9] - 15:22,
26:22, 80:20, 85:6,95:19, 98:11,101:12, 102:12,103:12
delay [1] - 27:9delivered [1] - 6:18delves [1] - 62:15
5
demands [2] - 89:5,90:10
demeaning [2] - 31:2,97:10
democratic [2] -90:24, 93:23
deny [1] - 102:13denying [1] - 99:15deposition [21] - 8:10,
8:11, 23:14, 25:20,31:9, 48:12, 48:15,49:12, 50:8, 50:12,51:16, 71:12, 74:9,74:24, 79:15, 86:11,86:12, 88:5, 94:13,95:9, 95:25
depositions [3] - 47:1,47:14, 60:13
deputy [1] - 13:21derogation [1] - 99:3designating [1] -
86:13desire [2] - 84:1,
90:11despite [1] - 94:17detail [2] - 31:25,
79:22determination [2] -
14:3, 75:19determinative [1] -
97:13determine [1] - 44:7develop [2] - 55:22,
55:23developed [5] - 10:13,
42:9, 103:20,103:21, 105:13
developing [1] - 10:21development [4] -
11:8, 85:23, 93:21,96:8
dialogue [2] - 27:13,84:16
diary [23] - 7:14, 9:4,11:23, 12:13, 16:14,21:18, 27:25, 29:5,30:8, 44:22, 66:24,68:11, 69:24, 70:20,79:16, 79:23, 79:25,85:14, 91:10, 91:11,94:10, 96:11
diary's [1] - 29:1difference [5] - 15:14,
45:18, 65:14, 79:4,79:22
differences [2] -45:20, 58:4
different [11] - 29:2,37:24, 43:3, 44:16,44:19, 65:22, 74:11,
74:12, 83:18, 84:7,102:25
differential [1] - 30:18differently [1] - 75:16difficult [3] - 42:3,
82:18, 91:20difficulty [1] - 87:3digest [1] - 107:13dimension [3] - 13:20,
85:21, 105:11dimensions [1] - 30:6diminish [2] - 94:3,
96:22direct [2] - 90:5, 99:3directly [5] - 10:24,
26:10, 31:6, 43:18,93:14
disabilities [1] - 41:23disadvantage [1] -
36:18disc [1] - 57:4disciplinary [2] -
94:16, 95:5disclose [1] - 37:16disclosed [9] - 9:7,
31:5, 52:10, 87:14,87:15, 95:11,100:19, 101:2, 101:3
disclosing [2] - 72:21,105:3
disclosure [19] -22:12, 30:7, 32:16,35:20, 40:13, 55:16,63:3, 81:13, 81:21,91:18, 98:13, 99:5,100:2, 100:21,103:15, 103:24,104:1, 105:19
discount [1] - 91:12discovery [47] - 22:8,
22:9, 35:10, 35:12,38:8, 38:10, 41:22,46:9, 47:2, 47:13,47:14, 47:15, 47:22,47:24, 50:25, 51:2,51:23, 54:13, 54:17,55:2, 55:12, 55:23,56:2, 56:9, 56:20,59:22, 61:6, 61:9,61:19, 62:2, 62:13,62:15, 62:23, 63:2,77:1, 77:5, 78:23,82:1, 83:20, 102:18,103:13, 103:14,103:20, 104:4,104:8, 105:25
discretion [4] - 25:11,31:11, 36:11, 76:20
discuss [4] - 61:14,62:2, 76:20, 78:23
discussed [1] - 42:9discusses [1] - 79:21discussion [13] -
15:23, 55:4, 56:14,80:9, 87:11, 89:19,90:12, 90:19, 92:7,98:12, 100:20,100:23, 105:24
discussions [1] -52:16
disinformation [1] -45:13
dismiss [5] - 11:19,12:24, 13:15, 82:10,82:14
disobedience [1] -89:20
dispose [1] - 87:6disposed [1] - 54:13disposition [2] -
47:21, 79:6dispute [2] - 18:13,
92:4disrepute [6] - 23:22,
31:3, 36:17, 73:24,94:12, 95:19
dissatisfied [1] - 88:1disseminates [1] -
10:24dissemination [1] -
17:3distinction [5] - 5:24,
6:4, 83:13, 84:12,84:13
distinctions [1] -98:17
distinguish [2] -65:21, 83:22
distract [1] - 56:10distracted [1] - 74:1distractions [1] - 42:5distribution [3] - 17:4,
21:21, 21:23DISTRICT [2] - 1:1, 1:1District [9] - 15:2,
15:8, 15:9, 15:17,15:20, 41:20, 78:5,78:20, 108:5
doc [7] - 9:11, 10:5,22:16, 45:23, 47:4,59:7, 69:3
docket [3] - 13:23,34:16, 35:3
document [92] - 6:16,7:25, 8:1, 8:4, 8:6,9:5, 9:9, 9:11, 10:2,10:4, 10:7, 12:20,13:24, 19:10, 20:7,20:19, 20:24, 21:1,21:6, 21:13, 21:17,
22:3, 22:5, 22:7,22:12, 22:14, 22:23,23:22, 23:25, 24:1,27:16, 27:23, 27:25,28:3, 31:25, 34:11,44:16, 44:21, 46:1,47:2, 47:13, 47:14,48:7, 49:22, 49:23,49:24, 50:11, 56:5,56:8, 56:23, 57:6,57:10, 57:11, 57:13,57:15, 57:16, 57:17,57:18, 57:19, 57:24,58:1, 58:23, 59:5,59:17, 63:5, 63:25,67:14, 67:17, 67:20,67:21, 68:2, 68:10,68:12, 68:16, 68:17,68:18, 68:19, 68:23,68:24, 69:3, 71:1,73:4, 80:16, 81:1,81:8, 83:20, 85:17,85:25, 101:11,101:13
documents [100] -5:17, 6:1, 6:22, 7:6,7:9, 7:12, 7:13, 8:8,9:23, 12:4, 12:8,12:23, 13:10, 13:22,14:5, 15:2, 15:5,15:7, 15:8, 15:17,16:5, 16:9, 16:12,16:17, 16:25, 17:4,17:6, 17:9, 17:10,17:24, 18:19, 18:20,19:4, 19:7, 22:20,27:20, 28:18, 31:4,34:20, 38:16, 38:17,38:19, 38:25, 39:9,39:13, 40:12, 40:15,44:5, 44:18, 44:19,46:12, 48:6, 54:16,54:18, 54:19, 54:23,56:4, 56:8, 58:18,58:24, 60:3, 62:23,63:3, 66:13, 66:21,67:7, 67:17, 70:10,75:12, 75:13, 75:15,75:20, 77:10, 78:11,80:11, 80:12, 80:20,82:2, 83:4, 83:5,85:2, 86:3, 87:16,88:15, 93:12, 93:17,99:5, 102:4, 102:7,103:6, 103:15,104:17, 106:1,106:2, 106:25, 107:3
dog [1] - 53:9domain [4] - 40:10,
40:17, 60:6, 60:9domestic [1] - 83:3
done [5] - 26:17,38:11, 46:21, 78:8,98:19
dot [9] - 9:11, 10:5,22:16, 28:5, 45:23,47:4, 57:2, 59:7,69:3
DOUGLAS [1] - 1:11down [9] - 10:11, 15:3,
17:7, 17:9, 17:19,27:22, 37:2, 67:10,77:5
download [2] - 9:6,40:2
downloaded [1] - 28:8dragged [1] - 75:3dramatic [1] - 6:15draw [2] - 84:11, 84:13drawing [2] - 5:24,
80:10drawn [4] - 23:21,
26:9, 26:22, 36:15drove [1] - 17:2drum [1] - 93:3drums [1] - 63:6due [1] - 55:5Dunn [1] - 40:11DUNNER [1] - 2:10during [5] - 22:8, 22:9,
55:25, 89:10, 100:20DUSTIN [1] - 1:7duties [1] - 94:8DVD [8] - 64:11,
64:14, 65:1, 79:19,82:24, 83:13, 86:8,99:9
Dyvia [4] - 8:10, 48:11,50:7, 50:12
Ee-mail [4] - 19:12,
40:10, 42:23, 57:6e-mailed [4] - 47:4,
47:5, 47:6, 57:9easily [2] - 46:23, 58:3editing [1] - 82:19editor [1] - 70:2editor's [2] - 39:25,
40:19editorial [20] - 8:9,
25:11, 30:18, 31:11,36:11, 39:14, 61:15,65:15, 71:9, 72:15,73:16, 73:24, 74:24,80:10, 85:4, 86:5,86:7, 95:10, 97:12,97:25
editors [1] - 86:2EDUARDO [1] - 1:6
6
Eduardo [1] - 3:6educational [1] -
20:18effect [1] - 70:3effective [1] - 40:18effort [2] - 89:1,
102:12efforts [2] - 42:4,
92:16EHRMAN [2] - 3:8,
3:11eight [1] - 16:11either [1] - 45:5either/or [1] - 83:21electronic [4] - 9:14,
9:17, 47:7, 58:3element [1] - 37:21eliciting [1] - 84:25eliminate [1] - 77:1eliminating [1] - 77:4Elizabeth [1] - 4:3Elliot [1] - 19:13EMANUEL [1] - 2:14Emanuel [1] - 43:14embarrassment [1] -
95:22emerged [1] - 40:17emergence [1] - 40:8emphasize [3] - 70:25,
84:18, 91:13employee [1] - 9:11enable [1] - 34:7encourage [2] - 75:5,
97:9encouraging [1] -
40:3end [6] - 8:10, 27:18,
33:7, 36:3, 47:23,78:18
ended [2] - 54:17,72:25
enforce [3] - 86:25,105:9, 105:10
enforced [1] - 95:24enforcing [1] - 98:18engaged [5] - 46:11,
58:18, 80:6, 80:9,85:23
engineering [1] -84:14
enjoined [1] - 40:3ensure [2] - 52:19,
87:10ensuring [1] - 41:17entered [1] - 14:8entire [1] - 68:16entirely [2] - 13:3,
77:10entirety [2] - 19:7,
38:16entities [1] - 94:9entitled [5] - 20:20,
56:6, 83:18, 99:21,102:8
entity [2] - 84:8, 94:5entrenchments [1] -
90:3entries [1] - 94:10entry [1] - 21:18equilibrium [1] - 56:11equipment [1] - 69:8error [1] - 44:7Esq [18] - 2:5, 2:8, 2:9,
2:9, 2:13, 2:13, 2:14,2:22, 3:1, 3:2, 3:8,3:10, 3:13, 3:16, 4:3,4:5, 4:6, 4:6
Esquenet [1] - 2:9essentially [3] - 26:18,
30:22, 95:5et [1] - 5:4evade [2] - 98:23,
105:14evaluation [2] - 32:19,
37:17event [6] - 43:1, 55:17,
63:6, 80:22, 95:25,97:5
events [1] - 80:9evidence [2] - 7:22,
93:1evidentiary [4] - 14:7,
88:7, 93:1, 105:17ex [4] - 37:19, 42:8,
81:17exact [2] - 11:23,
65:21exactly [10] - 7:8,
18:7, 29:21, 35:14,41:21, 65:10, 68:18,74:17, 85:16, 96:19
examination [1] -53:17
examiner [2] - 56:4,56:6
example [8] - 41:18,44:11, 46:18, 47:4,49:5, 95:19, 106:24
Except [1] - 34:23except [4] - 39:16,
44:17, 91:16, 104:21exception [1] - 85:16exceptions [1] - 86:9excerpt [3] - 6:11,
22:6, 23:14excerpts [1] - 79:14excised [1] - 95:13exculpatory [3] -
26:18, 26:19, 95:6
Excuse [2] - 6:18,49:15
exemplar [1] - 51:13exemplars [1] - 48:24exercise [11] - 10:25,
36:10, 69:24, 71:9,85:3, 92:20, 96:1,97:12, 97:25, 98:24,107:6
exhausted [1] - 29:15exhibit [6] - 11:23,
13:2, 14:7, 34:24,35:15
Exhibit [22] - 17:13,19:7, 19:12, 20:23,21:1, 21:17, 21:22,23:3, 23:14, 27:25,28:1, 31:20, 31:21,34:14, 58:4, 72:10,73:5, 95:2, 96:10,100:8, 101:13
exhibits [4] - 7:2,13:2, 13:3, 19:3
existed [3] - 28:10,38:4, 83:6
existing [1] - 48:23expand [1] - 102:12expect [2] - 61:18,
70:18expectation [1] - 56:3expected [1] - 103:1expedited [1] - 5:15experience [2] -
20:18, 52:16expert [8] - 8:16, 8:20,
8:22, 8:24, 50:8,51:14, 57:5
expert's [1] - 8:23explain [4] - 47:20,
49:16, 49:19, 56:21explains [1] - 57:15explanation [2] -
103:23, 103:25explore [3] - 46:20,
53:23, 79:14exploring [1] - 56:7express [1] - 74:11expressed [6] - 43:2,
86:13, 90:11, 90:19,93:21, 96:11
expression [8] -79:22, 80:19, 86:1,90:24, 92:21, 93:18,94:25
expressive [2] - 93:13,93:23
expressly [1] - 83:2extend [1] - 83:2extraordinary [1] -
31:21
eye [1] - 24:5eyes [1] - 24:4
FFacebook [15] - 2:18,
5:4, 7:15, 31:22,33:12, 33:21, 34:6,35:11, 35:14, 35:15,56:23, 67:24, 72:23,79:16, 108:9
FACEBOOK [1] - 1:6Facebook's [3] -
17:22, 21:2, 35:10faced [1] - 97:24facemash [2] - 20:5,
56:21fact [16] - 6:10, 10:4,
14:12, 38:9, 40:10,44:7, 45:23, 47:3,81:21, 90:23, 92:1,94:17, 95:24, 96:13,105:10, 106:22
facts [5] - 14:25, 20:6,85:10, 87:14, 87:15
factual [2] - 11:8,11:11
failure [1] - 92:2fair [3] - 48:12, 48:13,
79:21fairly [5] - 5:23, 19:4,
20:24, 39:12, 80:8falling [1] - 86:14falls [1] - 86:7false [1] - 7:21familiar [2] - 9:1,
32:25far [6] - 7:16, 21:14,
23:9, 27:21, 68:10,88:8
FARABOW [1] - 2:10fashion [8] - 63:7,
74:22, 91:24, 95:4,96:13, 98:4, 99:4,106:11
fast [1] - 96:5fast-moving [1] - 96:5favor [1] - 98:13feared [1] - 102:20Federal [1] - 2:6feelings [2] - 43:22,
55:19fellow's [1] - 39:2felt [1] - 82:11few [3] - 7:15, 26:12,
70:6figure [14] - 30:5, 44:8,
71:20, 71:24, 72:1,73:17, 73:18, 73:22,73:23, 74:9, 74:16,
83:6, 95:13file [34] - 9:5, 9:6,
9:12, 9:13, 9:15,10:5, 13:15, 13:24,15:3, 20:12, 45:8,45:16, 45:23, 46:1,46:6, 47:4, 47:7,54:21, 54:24, 57:9,58:12, 59:6, 59:7,67:1, 67:15, 68:18,68:19, 69:2, 69:24,70:11
filed [10] - 34:15,35:12, 41:19, 57:17,58:24, 59:17, 100:4,100:6, 100:7, 101:7
files [5] - 7:25, 15:17,42:14, 42:15, 68:11
filing [1] - 37:8filings [1] - 22:21filled [3] - 15:4, 48:20,
49:11final [6] - 60:22, 61:5,
87:25, 106:19finally [2] - 96:10,
98:10financial [5] - 21:5,
27:25, 34:2, 34:5Financial [1] - 4:4financing [2] - 32:2,
35:21findings [1] - 99:22fine [1] - 53:16finger [1] - 107:5finger-pointing [1] -
107:5FINNEGAN [1] - 2:10firm [3] - 9:3, 37:21,
57:11first [50] - 5:11, 6:22,
9:25, 10:6, 11:5,12:5, 12:10, 12:25,13:1, 13:4, 13:17,17:21, 22:24, 23:4,25:17, 30:7, 30:17,30:23, 33:18, 34:24,34:25, 38:14, 41:6,41:7, 42:13, 42:16,44:4, 45:21, 50:6,50:21, 50:22, 53:24,56:12, 58:4, 60:15,60:25, 62:2, 64:2,66:12, 67:14, 67:19,70:5, 73:7, 75:20,78:23, 78:24, 80:25,93:3, 97:2, 97:11
First [45] - 5:24, 6:25,7:3, 7:10, 7:11,12:20, 12:24, 13:4,13:7, 14:1, 15:4,
7
15:16, 15:18, 15:19,41:7, 44:8, 53:5,65:7, 67:16, 68:6,68:7, 68:11, 78:13,81:2, 83:10, 83:15,83:18, 83:25, 88:16,89:2, 89:8, 89:19,89:21, 90:4, 90:10,90:23, 91:23, 92:16,93:15, 94:25, 97:16,98:8, 99:14, 104:16,106:11
floated [1] - 75:4Floor [3] - 2:16, 3:3,
3:20floor [1] - 78:18flotsam [1] - 99:7flow [10] - 7:15, 12:12,
23:4, 23:10, 31:21,37:1, 46:18, 72:19,79:16, 88:6
flowing [1] - 87:9flows [4] - 21:2, 32:17,
87:9, 96:3focus [9] - 10:13,
18:12, 23:16, 26:3,26:14, 37:8, 84:20,84:22
focused [5] - 36:12,37:9, 79:13, 85:1,95:1
follow [3] - 6:15, 44:3,79:12
following [1] - 6:12foolish [3] - 94:21,
94:22, 97:24footer [1] - 68:23footnote [2] - 28:4,
59:17footsteps [1] - 53:7force [1] - 94:3forced [1] - 19:19foreclose [1] - 42:4foregoing [1] - 108:6forensic [1] - 58:13forensics [1] - 59:10forgetting [1] - 39:1form [18] - 15:4, 32:15,
37:19, 37:23, 49:12,56:10, 58:3, 58:24,62:23, 63:2, 86:1,90:20, 90:24, 93:23,94:16, 99:5, 104:20
formal [1] - 25:3formalized [1] - 81:20format [10] - 9:5, 9:12,
9:14, 9:15, 9:21,22:16, 56:25, 57:14,59:6
forms [1] - 91:15
formulate [3] - 62:3,62:14, 62:19
formulation [1] -55:12
forth [1] - 55:9forthcoming [1] -
102:15fortify [1] - 87:20forum [1] - 27:15forward [5] - 41:4,
56:14, 57:10, 59:9,62:25
foundation [1] - 56:5founded [1] - 71:24four [6] - 16:12, 16:16,
18:19, 18:20, 22:19,49:21
frame [1] - 56:3framed [1] - 51:23framing [1] - 79:9Francisco [1] - 3:9frankly [2] - 14:1,
73:10freedom [1] - 79:22freelance [1] - 6:23Frequently [1] - 9:19frequently [3] - 80:16,
83:25, 98:24Freund [1] - 102:20Friday [3] - 1:18,
100:17, 104:8front [1] - 68:17full [6] - 30:11, 60:15,
90:12, 93:1, 100:22,100:23
fully [12] - 10:13,15:13, 42:10, 50:14,50:15, 70:25, 77:15,78:17, 82:12, 98:11,105:13
fundamental [3] -27:16, 87:5, 91:8
fundamentally [2] -16:23, 93:18
funding [1] - 32:21funds [1] - 33:11future [1] - 62:11
GGamble [4] - 65:17,
65:21, 83:12, 91:25gander [1] - 55:2garbled [1] - 49:17GARRETT [1] - 2:10gatherum [1] - 98:16general [3] - 18:22,
47:20, 96:11General [1] - 82:1generality [2] - 33:14,
94:23generalized [1] -
78:13generally [4] - 36:13,
93:22, 98:13, 99:1generated [1] - 22:11Gibson [1] - 40:11given [7] - 25:19,
28:18, 42:21, 46:8,66:11, 79:9, 87:18
Given [1] - 42:20glad [1] - 6:14go-round [1] - 67:25gossip [1] - 83:3governs [1] - 46:16great [2] - 33:3, 59:9greater [3] - 15:22,
27:21, 84:1greatest [1] - 44:5greatly [1] - 46:6GRIESINGER [1] - 2:6gross [1] - 91:5grounds [2] - 98:1,
104:13groups [1] - 80:5growth [2] - 31:22,
32:19guess [28] - 5:10,
5:11, 23:16, 26:3,30:5, 32:10, 32:14,33:25, 36:6, 38:23,45:24, 46:2, 55:21,58:6, 58:15, 60:25,62:24, 69:25, 75:18,78:14, 80:3, 80:24,84:11, 100:5,101:16, 101:20,103:8, 106:4
guidance [1] - 17:1guided [2] - 89:2, 89:4
Hhalf [3] - 12:11, 62:20,
78:4hallway [1] - 15:3Hampton [1] - 3:13Hancock [4] - 1:21,
108:4, 108:15,108:16
hand [4] - 6:18, 32:11,57:20, 87:13
hand-delivered [1] -6:18
Handman [2] - 4:6,24:22
hands [3] - 46:12,81:12, 96:17
handwriting [19] - 8:9,8:14, 8:15, 8:16,
8:19, 44:20, 48:1,48:4, 48:11, 48:24,49:4, 49:9, 49:16,50:3, 50:8, 51:14,51:15, 51:16
handwriting's [1] -44:21
handwritings [1] -50:10
handwritten [17] - 8:1,8:2, 8:4, 8:7, 42:17,49:13, 49:25, 51:6,51:11, 63:10, 66:22,67:18, 67:19, 67:21,67:25, 68:3, 69:15
hangs [2] - 6:12, 7:19happily [1] - 90:2happy [9] - 5:14, 6:8,
18:25, 49:18, 72:15,76:5, 76:12, 76:13,88:10
Harbor [1] - 104:10hard [6] - 9:14, 40:10,
76:13, 85:14, 89:24,101:24
hardly [1] - 87:18hardships [1] - 93:25harm [1] - 98:8harmful [1] - 93:19harms [3] - 24:15,
98:3, 98:5Harvard [28] - 7:23,
8:16, 19:10, 19:23,20:4, 20:5, 20:7,20:12, 21:25, 26:16,30:2, 48:4, 48:5,49:11, 49:22, 49:24,50:6, 50:10, 50:15,50:18, 50:25, 51:2,63:11, 67:14, 96:25,97:1, 97:22
hastily [1] - 40:23Hawk [1] - 3:10header [1] - 68:23hear [18] - 5:10, 5:12,
24:25, 25:7, 31:10,43:24, 43:25, 49:20,53:25, 54:4, 54:5,70:7, 74:16, 76:15,76:16, 77:3
heard [10] - 12:11,18:2, 61:21, 63:3,71:14, 75:22, 77:17,88:21, 100:13, 106:4
Hearing [1] - 107:19HEARING [1] - 1:13hearing [7] - 5:15,
14:7, 41:7, 48:2,89:6, 92:25, 100:10
hearings [1] - 89:7
hearsay [1] - 97:3heart [1] - 89:8HEDGES [1] - 2:15heightened [1] - 107:3held [7] - 23:7, 23:19,
31:3, 36:17, 73:23,94:12, 95:18
HELLER [2] - 3:8, 3:11help [2] - 46:6, 56:19helpful [5] - 40:19,
51:19, 55:1, 61:5,64:9
Hence [1] - 90:4HENDERSON [1] -
2:10hereby [1] - 108:5HERRINGTON [2] -
2:23, 3:16high [1] - 85:6highly [2] - 96:12,
97:20himself [1] - 19:22historical [2] - 9:8,
33:16history [2] - 72:20,
72:24hold [1] - 106:1Hold [1] - 71:21HOLLAND [1] - 3:14holographic [1] - 64:2Honor [203] - 5:14,
6:8, 6:17, 6:21, 7:2,7:8, 7:21, 8:6, 8:11,9:2, 9:22, 10:1,10:15, 11:2, 11:15,11:22, 12:3, 12:10,12:15, 13:9, 13:14,14:4, 14:17, 15:24,16:22, 17:1, 17:8,17:21, 18:7, 18:15,19:1, 19:13, 19:20,19:25, 20:10, 20:13,21:10, 22:13, 22:23,23:2, 23:9, 23:15,23:24, 24:13, 24:17,25:9, 25:18, 25:22,26:1, 26:6, 26:12,27:1, 27:8, 27:19,28:6, 28:16, 28:24,29:3, 29:11, 29:18,29:24, 30:14, 30:20,31:10, 31:24, 32:18,33:5, 33:17, 34:9,34:16, 34:22, 35:18,36:2, 36:23, 37:5,38:13, 39:9, 39:21,39:23, 40:21, 42:11,42:24, 43:12, 43:20,44:2, 44:17, 45:8,45:11, 45:17, 46:5,
8
46:6, 46:15, 47:3,47:25, 48:10, 48:16,48:25, 49:2, 49:10,49:18, 50:17, 51:18,51:24, 52:1, 52:2,52:3, 52:11, 52:24,53:3, 53:6, 53:12,53:19, 54:1, 54:2,54:12, 55:5, 56:16,58:19, 58:21, 59:4,59:14, 59:18, 60:7,60:18, 61:7, 62:6,63:9, 63:15, 63:16,64:5, 64:7, 64:23,65:4, 65:9, 66:1,66:2, 66:8, 66:12,70:13, 70:17, 70:21,71:3, 71:10, 71:23,72:10, 72:12, 72:19,73:3, 73:4, 73:6,73:15, 73:19, 74:10,74:17, 75:8, 76:4,76:18, 76:21, 76:23,77:6, 77:23, 78:22,79:8, 79:14, 79:18,80:23, 81:23, 81:25,82:20, 82:24, 83:10,84:11, 85:5, 85:8,86:1, 86:6, 87:22,88:3, 88:4, 88:10,88:23, 96:18, 96:24,99:24, 100:7, 101:6,101:16, 102:3,102:5, 103:4,103:17, 104:2,104:15, 104:16,105:1, 105:22,106:7, 106:16,106:18, 107:1,107:7, 107:16
Honor's [2] - 82:22,106:20
Honorable [2] - 5:2,66:5
HONORABLE [1] -1:11
hoped [1] - 101:25Hopefully [1] - 54:3HORNICK [33] - 12:15,
12:17, 13:9, 19:25,20:3, 20:10, 23:9,29:24, 34:9, 34:11,34:14, 34:18, 34:23,35:3, 35:5, 35:8,36:1, 36:5, 49:15,56:16, 56:19, 57:2,57:4, 57:22, 58:10,58:14, 58:21, 61:23,62:1, 62:9, 63:9,96:18, 96:24
Hornick [19] - 2:8,12:15, 13:6, 13:15,19:25, 23:6, 29:24,34:9, 34:10, 47:19,49:15, 49:19, 56:16,58:7, 58:22, 61:23,62:18, 63:9, 64:16
Hornick's [1] - 35:19horse [1] - 53:9hour [4] - 12:11,
12:19, 62:20, 78:3hours [2] - 10:16,
36:21house [1] - 20:10housekeeping [4] -
24:23, 46:14, 46:19,101:17
HUGHES [1] - 1:7Hughes [1] - 2:20human [1] - 31:1hunt [2] - 54:21, 54:22hurt [2] - 43:22, 55:18Husbands [3] - 4:6,
67:4, 68:4HUSBANDS [14] -
67:11, 67:12, 67:14,68:2, 68:6, 68:8,68:10, 68:21, 69:1,69:9, 69:13, 69:18,69:20, 70:1
Iidea [1] - 23:8identification [1] -
74:6identified [11] - 18:19,
31:17, 47:16, 49:14,54:20, 81:25, 95:12,96:4, 101:13,101:21, 102:4
identifiers [1] - 67:23identify [5] - 5:8, 14:5,
42:9, 71:13, 72:5identifying [4] - 38:11,
50:4, 51:9, 101:13illegally [1] - 81:12illegible [1] - 68:14imagaine [1] - 46:17immediate [4] - 81:21,
84:20, 96:8, 103:9immediately [2] -
28:7, 79:7impact [1] - 88:10implicated [1] - 83:15importance [2] -
27:21, 91:12important [13] - 6:10,
10:4, 54:5, 54:6,73:10, 85:21, 86:10,
89:13, 91:8, 100:4,100:5, 105:2
impose [1] - 98:9impossible [1] - 86:15improper [3] - 81:13,
86:17, 98:20improperly [2] - 55:16,
60:8inadvertently [1] -
86:16Inc [4] - 2:3, 2:18, 5:4INC [2] - 1:4, 1:6incidental [1] - 92:10inclined [2] - 38:2,
38:3include [6] - 45:5,
92:22, 97:14,102:24, 106:5
included [1] - 11:20including [1] - 106:24incoherent [1] - 37:21Income [1] - 33:18incommensurables
[2] - 90:10, 91:4inconsequential [1] -
94:22inconsistent [6] -
15:21, 78:15,103:24, 103:25,104:22, 105:16
incorporated [1] -13:7
incorrect [2] - 30:8,30:9
increased [1] - 84:3indeed [3] - 59:19,
61:9, 72:22independent [3] -
104:13, 105:9,105:15
indicate [2] - 44:19,60:2
indicated [4] - 5:7,18:1, 77:23, 92:24
indicates [4] - 10:5,13:23, 28:9, 69:3
indication [2] - 54:15,75:25
indications [1] - 45:25indirectly [1] - 102:13individual [9] - 27:4,
31:3, 73:7, 74:1,74:6, 74:7, 74:19,77:9, 95:17
individual's [4] -71:16, 73:11, 73:13,74:3
individuals [3] -31:16, 46:20, 84:4
inextricably [1] -
93:12inferences [1] - 53:14inflict [1] - 98:5inflicting [1] - 98:8inform [1] - 18:9information [34] -
5:22, 9:7, 9:8, 10:8,10:10, 14:9, 18:5,21:3, 32:8, 32:21,33:3, 34:4, 35:20,35:21, 42:20, 45:23,46:17, 50:2, 50:5,51:9, 52:10, 53:5,58:7, 71:15, 78:14,81:5, 83:3, 84:1,86:14, 86:16, 91:8,94:4, 94:6, 96:16
informations [1] -107:1
informed [7] - 15:13,16:14, 17:21, 17:22,24:8, 64:6
infusion [1] - 72:23initial [1] - 88:22injunction [14] -
37:23, 38:5, 38:6,79:1, 79:5, 87:24,92:6, 92:14, 93:5,93:6, 94:2, 98:5,99:16
injunctions [1] - 38:4injunctive [3] - 61:20,
84:23, 93:3innocent [4] - 23:20,
36:14, 74:25, 75:1inquiries [1] - 42:6inquiry [5] - 41:20,
41:22, 42:8, 78:17,83:11
insight [1] - 89:12insignificant [1] -
52:17instance [2] - 25:16,
30:22instances [1] - 65:21institutional [1] -
41:17instrumentally [1] -
62:19integrity [3] - 41:17,
55:14, 82:1intellectual [1] - 90:16intend [2] - 77:16,
102:7intent [1] - 87:19intention [4] - 75:17,
82:13, 103:2, 104:18inter [1] - 63:2interest [15] - 11:12,
33:16, 39:15, 39:17,
84:25, 85:15, 88:14,90:13, 91:5, 93:16,96:1, 98:10, 98:13,99:2, 99:3
interested [6] - 11:4,55:8, 92:3, 96:24,97:4, 104:24
interesting [1] - 55:10interests [5] - 90:4,
93:20, 94:24, 95:2,107:8
interlocutory [3] -84:23, 92:23, 93:8
International [2] - 3:3,3:20
internet [7] - 7:6,28:18, 58:5, 58:25,64:24, 84:10, 96:14
interrupt [5] - 11:25,14:20, 15:25, 18:6,96:18
interrupted [1] - 71:8intersection [1] -
31:18intertwined [1] - 93:12interview [1] - 52:9investigate [6] - 17:1,
29:12, 29:22, 41:10,42:19, 46:7
investigating [3] -62:3, 62:6, 77:25
investigation [2] -16:24, 41:6
investigations [3] -52:17, 62:7, 91:21
investing [2] - 32:2,33:2
investor [1] - 35:20investor-related [1] -
35:20investors [1] - 32:13invitation [1] - 72:2invited [1] - 43:5invoke [1] - 88:14invokes [2] - 85:6,
85:15involved [8] - 12:25,
42:8, 43:10, 46:11,48:3, 70:20, 74:20,95:4
involves [3] - 21:4,67:5, 98:24
irreparable [1] - 84:20irrespective [4] -
10:23, 38:2, 38:5,60:13
issuance [3] - 32:3,32:5, 94:2
issue [40] - 12:21,15:2, 16:17, 16:25,
9
17:2, 22:25, 25:10,26:24, 27:17, 31:21,37:24, 38:20, 38:23,39:4, 41:16, 42:3,42:21, 46:22, 46:24,47:16, 55:1, 56:13,59:5, 64:24, 64:25,65:11, 65:20, 75:11,78:23, 82:8, 83:6,84:12, 87:5, 87:24,92:2, 99:4, 100:5,100:15, 101:20,102:6
issued [1] - 35:9issues [19] - 16:24,
18:24, 27:14, 32:4,41:4, 46:22, 51:24,70:6, 76:19, 79:3,79:9, 82:22, 83:15,91:12, 98:16,102:16, 102:17,102:19, 103:18
iteration [2] - 8:3, 64:2iterations [1] - 63:25itself [19] - 13:25,
15:15, 15:21, 61:3,76:9, 77:24, 80:21,85:24, 85:25, 86:5,86:7, 87:1, 87:15,89:4, 90:15, 90:16,100:14, 105:9,105:10
JJames [1] - 3:14January [14] - 10:6,
10:7, 22:10, 22:14,22:16, 33:25, 56:22,56:24, 57:5, 57:14,57:15, 57:20, 58:9,68:22
jetsam [1] - 99:7John [13] - 1:16, 1:22,
2:8, 12:15, 19:13,19:25, 29:24, 34:9,49:15, 56:16, 58:22,61:23, 63:9
Jose [1] - 65:3Joseph [2] - 1:16,
1:22journal [8] - 9:23,
29:25, 34:23, 44:10,44:14, 56:22, 85:12,88:5
Journal [4] - 89:2,91:17, 105:11,106:23
journalism [8] - 80:4,80:7, 81:11, 84:4,
90:20, 93:22, 98:24journalist [2] - 6:23,
78:9journalistic [1] - 82:19journalists [2] - 60:12,
61:9judge [2] - 80:17,
81:16Judge [10] - 5:5, 35:9,
35:21, 61:23, 67:4,70:7, 75:18, 75:23,77:12, 98:16
judges [3] - 18:14,83:25, 102:20
judgment [18] - 11:20,25:11, 39:14, 71:9,72:15, 73:16, 73:25,74:13, 74:14, 74:24,80:10, 82:11, 82:14,85:4, 91:1, 95:10,97:12, 97:25
judgmental [1] - 37:7judgments [3] - 26:23,
84:5, 90:7judicial [2] - 13:18,
82:1July [1] - 42:24jumping [1] - 28:4jurisdiction [4] - 38:7,
87:7, 87:8, 92:8jurisprudence [1] -
91:14justice [1] - 81:25justifiable [1] - 105:21justification [1] - 98:8justify [2] - 84:24, 96:1
Kkeep [5] - 10:2, 39:1,
86:18, 94:14, 102:2kept [4] - 21:18, 41:19,
57:14, 91:19key [2] - 6:9, 91:11kind [15] - 21:5, 23:21,
30:4, 31:7, 32:11,32:12, 42:20, 73:17,79:12, 80:4, 81:19,96:1, 98:16, 99:8,105:19
kinds [1] - 94:7KNIGHT [1] - 3:14knowledge [3] -
28:22, 29:9, 52:7known [4] - 51:14,
51:16, 71:19, 71:24knows [1] - 63:17
Llabel [4] - 53:11,
68:22, 84:10, 84:24laboring [1] - 77:8language [1] - 67:5large [1] - 49:5large-enough [1] -
49:5larger [4] - 22:7, 59:6,
90:16, 90:22last [8] - 14:22, 52:3,
54:2, 60:22, 61:10,73:2, 75:11, 89:14
late [1] - 88:23launch [1] - 54:21laundry [1] - 66:11Laura [2] - 4:6, 24:22law [11] - 5:23, 18:8,
18:10, 37:20, 38:4,74:19, 81:20, 88:17,89:3, 89:11, 95:19
Law [1] - 65:2lawfully [1] - 6:23lawyer [4] - 46:10,
54:11, 102:20,102:21
lawyers [2] - 40:15,76:13
layer [1] - 88:16lead [1] - 82:18leading [1] - 89:3leak [1] - 52:17learn [1] - 19:20learned [3] - 10:15,
67:7, 104:23learning [1] - 59:9least [38] - 10:9,
10:17, 12:1, 13:22,14:14, 14:21, 15:16,16:14, 18:15, 23:20,25:18, 26:23, 29:4,36:7, 42:6, 50:9,52:23, 56:14, 60:1,62:22, 63:4, 64:1,72:22, 73:16, 74:12,74:13, 82:16, 85:4,87:15, 89:8, 91:1,94:16, 95:15, 97:18,99:9, 100:11, 105:12
leave [2] - 55:22,106:13
leaving [1] - 47:23led [1] - 29:4left [1] - 53:1legal [6] - 30:14,
30:17, 37:7, 37:21,74:14, 86:25
legally [1] - 81:12lend [1] - 80:21
less [3] - 31:22, 37:6,43:21
letters [1] - 48:9level [2] - 87:19, 94:23lie [1] - 90:3life [1] - 94:18light [4] - 27:15,
42:17, 52:16, 104:5likelihood [3] - 92:16,
93:10, 94:20likely [3] - 59:15,
95:10, 103:23limited [1] - 90:6Lindsey [1] - 9:10line [6] - 30:23, 33:18,
72:13, 73:7, 97:11,100:8
Line [2] - 72:9, 72:11lineage [1] - 45:15Lippman [1] - 97:19list [4] - 14:7, 39:20,
66:11, 103:10listen [1] - 6:14litigation [15] - 22:17,
26:10, 31:5, 36:15,39:16, 75:1, 85:20,87:2, 89:2, 89:16,92:12, 94:14, 98:14,100:3, 106:13
litodes [1] - 78:15live [1] - 53:17LLC [1] - 1:8LLP [10] - 2:6, 2:10,
2:15, 2:23, 3:2, 3:8,3:11, 3:14, 3:16,3:19
loaded [1] - 22:17local [1] - 24:19located [2] - 42:18,
78:20Loeb [2] - 97:18,
97:19look [12] - 6:21, 25:17,
30:21, 30:22, 33:17,39:13, 40:5, 56:14,57:11, 59:9, 97:2,100:15
looked [6] - 8:8, 13:4,28:6, 42:16, 42:17,57:23
looking [3] - 34:15,42:14, 48:23
loudly [1] - 54:8LOVETT [1] - 5:2Lovett [2] - 5:7, 13:21luck [1] - 98:25lucky [1] - 98:22Luke [1] - 6:23
MMA [7] - 1:17, 1:23,
2:7, 3:4, 3:15, 3:21,4:4
machine [1] - 69:10Madison [1] - 2:15MAFFEI [1] - 2:6magazine [28] - 6:3,
6:6, 6:19, 61:11,67:18, 67:19, 68:14,69:14, 69:15, 69:20,69:21, 70:2, 70:19,71:11, 71:18, 72:25,74:13, 77:10, 80:9,81:16, 83:5, 83:24,86:2, 90:11, 91:2,97:22, 101:21, 102:3
magazine's [1] - 73:9magazines [1] - 80:15mail [4] - 19:12, 40:10,
42:23, 57:6mailed [4] - 47:4, 47:5,
47:6, 57:9maintain [1] - 40:20maintained [1] - 57:10major [1] - 27:23manageable [1] - 90:6manner [4] - 29:7,
74:10, 75:23, 93:2Margaret [1] - 2:9margin [2] - 50:23,
51:11margins [1] - 51:7MARK [1] - 1:6Mark [10] - 2:19, 3:2,
7:14, 7:23, 9:4,11:23, 19:13, 21:18,44:22, 49:23
marked [3] - 22:15,38:17, 38:25
marketplace [3] -33:11, 33:22, 34:7
marking [1] - 22:18markings [1] - 44:18Marsh [2] - 2:23, 3:17Mass [1] - 24:23MASSACHUSETTS
[1] - 1:1match [4] - 8:20, 8:21,
50:12material [7] - 52:8,
80:6, 84:2, 90:22,92:22, 102:10,104:14
materials [24] - 9:20,11:18, 11:21, 22:11,24:10, 36:11, 37:17,40:20, 41:9, 41:18,52:14, 61:2, 61:4,
10
80:7, 80:15, 81:1,86:5, 90:25, 91:18,91:19, 91:20, 95:11,106:23
matter [26] - 11:14,17:18, 20:16, 21:19,38:1, 41:15, 41:17,43:3, 46:14, 46:19,55:23, 66:12, 86:25,91:25, 94:6, 96:12,97:6, 97:8, 101:11,105:17, 105:20,105:21, 106:19,107:5, 108:8
matters [9] - 25:8,37:13, 61:16, 93:16,94:22, 97:2, 98:14,99:1, 100:22
mature [1] - 94:18MCCOLLUM [1] - 1:7McCollum [1] - 2:20mean [22] - 16:19,
32:4, 37:18, 39:11,42:4, 43:1, 45:9,48:8, 48:15, 51:19,74:10, 76:18, 81:17,92:21, 93:2, 94:3,97:25, 99:18,100:19, 100:22,103:5, 104:9
mean-spirited [1] -97:25
meaning [4] - 40:9,41:19, 78:5, 78:18
meaningful [1] - 55:12means [4] - 86:17,
92:18, 96:14, 99:14meant [4] - 26:18,
26:20, 67:20, 94:15measured [1] - 84:6Mechanical [1] - 1:24mechanism [2] -
24:14, 87:1media [2] - 46:9, 82:3meet [1] - 35:11member [5] - 20:9,
24:22, 24:24, 68:16,107:12
memorandum [1] -101:2
Men [1] - 97:20Menlo [3] - 2:24, 3:12,
3:17mentioned [2] - 45:21,
60:16mere [1] - 84:24Meredith [1] - 2:9merely [5] - 78:12,
83:19, 85:9, 85:19,89:4
merits [5] - 76:6,92:17, 92:18, 93:10
metadata [7] - 9:8,9:9, 10:5, 28:9,42:18, 45:23
metaphors [1] - 40:7microphone [1] - 54:9Microsoft [1] - 9:12Middlefield [1] - 3:11Midwest [1] - 9:2might [17] - 32:1,
36:16, 42:5, 48:19,48:20, 49:7, 61:18,70:18, 76:25, 77:3,82:7, 87:20, 95:9,95:18, 96:18, 97:13,97:22
Miller [1] - 39:2million [1] - 72:23mind [8] - 26:24, 75:3,
85:23, 92:6, 92:13,92:15, 93:18, 101:21
minimize [1] - 74:11minimum [1] - 94:12mirror [1] - 98:4mirror-like [1] - 98:4misrepresentation [1]
- 75:24missed [1] - 76:4missing [1] - 15:3mistakes [1] - 94:20misunderstanding [1]
- 14:21mitigated [1] - 24:16Moakley [2] - 1:16,
1:22models [1] - 34:3modifications [1] -
57:23modified [2] - 38:7,
57:19modify [2] - 38:3moment [21] - 6:14,
7:5, 10:19, 10:22,13:1, 15:11, 20:24,25:22, 27:5, 34:10,37:12, 41:1, 43:16,44:23, 53:22, 66:15,70:15, 81:1, 86:22,91:12
Monday [1] - 70:21money [5] - 32:3,
33:23, 33:24months [1] - 7:15moot [2] - 12:25,
13:16Morality [1] - 89:18Moreover [2] - 93:14,
93:16morning [3] - 77:17,
79:10, 106:24MOSKOVITZ [1] - 1:7most [10] - 21:2,
39:15, 75:21, 89:13,90:6, 91:16, 95:1,97:20, 98:15, 102:20
motion [23] - 11:19,11:20, 12:24, 12:25,13:3, 13:15, 35:8,35:12, 35:13, 35:19,76:9, 76:11, 77:11,78:21, 82:10, 82:11,91:13, 98:6, 100:1,100:6, 100:24,102:12
Motion [1] - 34:14MOTION [1] - 1:13motions [1] - 82:14mouth [1] - 54:9move [2] - 15:12,
103:19moving [7] - 62:25,
92:19, 93:11, 93:25,94:2, 96:5, 98:3
MR [285] - 5:14, 6:8,6:17, 6:21, 7:8, 8:5,8:14, 8:23, 9:2, 9:22,10:15, 11:2, 11:15,11:22, 12:3, 12:10,12:15, 12:17, 13:9,13:14, 14:4, 14:17,14:20, 14:25, 15:24,16:3, 16:7, 16:11,16:20, 16:22, 17:8,17:13, 17:16, 17:20,18:11, 18:14, 18:25,19:3, 19:6, 19:12,19:17, 19:20, 19:24,19:25, 20:3, 20:10,20:13, 20:16, 20:23,21:1, 21:10, 21:12,21:17, 21:23, 22:2,22:5, 22:9, 22:13,22:23, 23:2, 23:9,23:15, 23:23, 24:1,24:4, 24:13, 25:9,25:18, 25:22, 26:1,26:6, 26:12, 27:1,27:3, 27:8, 27:12,28:6, 28:16, 28:22,29:2, 29:11, 29:18,29:24, 30:14, 30:19,30:24, 31:10, 31:14,31:24, 32:7, 32:18,32:24, 33:4, 33:9,33:17, 33:21, 34:2,34:9, 34:11, 34:14,34:18, 34:22, 34:23,35:3, 35:5, 35:8,35:18, 36:1, 36:5,
36:23, 36:25, 37:4,38:13, 39:3, 39:8,39:20, 39:23, 40:21,41:3, 41:25, 42:11,42:13, 43:7, 43:12,43:14, 43:20, 44:2,44:16, 44:21, 44:25,45:7, 45:11, 45:14,45:17, 45:20, 45:25,46:4, 46:15, 47:2,47:6, 47:12, 47:25,48:10, 48:16, 48:19,48:22, 48:25, 49:2,49:4, 49:10, 49:15,49:18, 49:22, 50:17,50:20, 50:22, 51:1,51:5, 51:18, 51:23,52:1, 52:24, 53:3,53:12, 53:19, 54:1,54:2, 54:3, 54:8,54:12, 54:15, 55:5,56:16, 56:19, 57:2,57:4, 57:22, 58:10,58:14, 58:19, 58:21,59:2, 59:4, 59:13,59:18, 59:24, 60:7,60:10, 60:18, 61:7,61:23, 62:1, 62:9,63:9, 63:15, 63:16,63:19, 63:22, 63:23,64:5, 64:10, 64:14,64:18, 64:20, 65:9,65:14, 65:19, 66:1,66:8, 66:11, 66:18,66:24, 67:3, 70:7,70:9, 70:13, 70:17,70:21, 71:3, 71:7,71:10, 71:18, 71:23,72:4, 72:8, 72:10,72:12, 72:15, 72:18,73:2, 73:6, 73:9,73:15, 73:21, 74:10,75:7, 75:11, 75:18,76:4, 76:9, 76:11,76:18, 76:23, 77:12,77:16, 77:19, 77:22,78:22, 79:8, 79:12,79:18, 79:21, 80:23,81:4, 81:23, 82:20,83:1, 84:11, 85:5,85:25, 86:6, 86:20,87:21, 88:3, 88:13,88:23, 96:18, 96:24,99:24, 101:16,101:20, 101:23,102:2, 103:4,103:17, 104:2,104:15, 105:1,105:22, 106:7,106:16, 106:18,106:22, 107:7,
107:16MS [19] - 6:18, 24:17,
24:19, 25:1, 66:2,67:11, 67:14, 68:2,68:6, 68:8, 68:10,68:21, 69:1, 69:9,69:13, 69:18, 69:20,70:1, 101:6
MS.RITVA [3] - 24:22,25:5, 101:9
multitude [1] - 40:7must [2] - 84:22,
93:19mute [1] - 75:6mystery [1] - 66:13
Nname [21] - 8:23, 24:2,
25:12, 25:13, 26:9,39:2, 67:9, 72:16,73:6, 73:11, 73:13,74:3, 75:3, 85:9,95:13, 95:14, 97:14,97:23, 100:8, 102:3,102:23
named [1] - 9:10names [8] - 5:10, 14:2,
25:14, 25:15, 36:15,49:13, 71:16, 85:6
Napster [1] - 71:24Narendra [3] - 49:11,
50:12, 52:25Narendra's [3] - 8:10,
48:11, 50:8Nathan [1] - 3:8nature [2] - 28:18,
88:7necessarily [1] - 98:4necessary [5] - 41:12,
99:18, 102:9,103:12, 104:7
necessity [1] - 56:7need [20] - 38:14,
38:15, 40:2, 40:4,41:5, 41:6, 42:9,42:19, 42:22, 46:7,46:9, 49:20, 62:12,62:13, 77:1, 85:11,97:16, 100:2, 101:7,103:9
needed [1] - 34:8needs [7] - 42:1,
42:16, 42:17, 78:8,101:14, 105:7,105:19
Neel [4] - 2:22, 3:16,12:22, 49:15
negligence [4] -55:15, 81:12, 82:16,
11
82:17Net [1] - 33:18never [6] - 5:23, 44:12,
52:7, 52:9Nevertheless [2] -
37:18, 100:25nevertheless [1] -
11:10New [4] - 2:11, 2:16,
4:8, 89:15new [6] - 8:6, 31:23,
50:2, 50:3, 68:19news [1] - 71:25newsman's [1] - 60:4newspapers [1] - 32:1next [8] - 2:25, 3:23,
21:17, 33:19, 62:20,72:4, 100:17, 104:8
night [1] - 14:22Nobody's [1] - 23:7non [2] - 92:8, 93:25non-moving [1] -
93:25non-party [1] - 92:8nondisclosure [3] -
33:5, 33:6, 52:18nonpublic [2] - 73:22,
73:23notations [2] - 66:22,
67:25note [1] - 99:25noted [1] - 65:6notes [18] - 8:1, 8:2,
8:4, 8:7, 8:15, 42:18,49:13, 49:25, 50:22,51:6, 63:10, 67:18,67:19, 67:21, 68:3,69:15, 100:11, 108:8
nothing [2] - 100:13,104:22
notice [4] - 7:18,13:18, 86:20, 86:24
noticed [2] - 13:22,67:25
notified [1] - 24:3November [1] - 1:18nuance [1] - 15:22number [16] - 7:10,
7:13, 17:23, 18:2,28:4, 33:19, 33:21,34:16, 35:3, 39:20,43:19, 49:25, 50:1,51:13, 64:7, 102:4
Number [4] - 43:21,51:4, 51:5, 51:7
numbers [2] - 11:23,21:5
NY [2] - 2:16, 4:8
OO'Brien [26] - 6:23,
7:21, 16:1, 16:2,39:3, 39:4, 53:4,53:9, 57:25, 58:18,59:12, 60:16, 60:25,61:18, 63:11, 67:15,67:17, 68:12, 69:7,69:23, 70:10, 76:25,77:3, 101:7, 104:14,105:17
O'Brien's [7] - 60:3,62:25, 67:19, 68:3,77:8, 78:16, 104:22
oath [2] - 7:21, 60:24obey [1] - 38:6object [1] - 37:13objection [3] - 23:23,
27:23, 30:10obligated [1] - 98:10obligation [6] - 18:16,
60:12, 90:9, 95:24,105:9, 105:10
observation [4] -29:13, 58:8, 58:15,89:21
observations [2] -90:18, 99:17
obtain [3] - 52:4,60:15, 93:8
obtained [5] - 6:23,53:5, 60:5, 81:2,81:5
obviously [11] - 8:16,26:19, 38:1, 51:20,66:16, 74:3, 75:19,84:5, 99:17, 103:20,105:20
Obviously [1] - 106:22occasion [5] - 89:17,
99:20, 104:10occur [2] - 90:6,
106:12OF [1] - 1:1offer [5] - 14:15, 44:1,
59:11, 60:22, 95:23offered [2] - 37:17,
95:22offers [4] - 53:4,
53:10, 83:24, 89:21office [5] - 6:25, 14:2,
53:1, 55:15, 78:19Office [10] - 15:4,
16:6, 68:7, 78:4,78:5, 78:6, 78:10,82:17, 104:19, 107:2
Offices [1] - 82:17offices [2] - 40:15,
107:4
Official [3] - 1:22,108:4, 108:17
old [7] - 21:9, 21:12,31:23, 31:25, 34:15,35:1, 35:5
OLIVER [1] - 2:14omnium [1] - 98:16omnium-gatherum [1]
- 98:16once [5] - 40:9, 46:20,
87:18, 97:20, 105:8one [81] - 6:9, 7:2, 7:4,
7:9, 7:12, 10:12,10:22, 11:16, 11:24,11:25, 13:20, 13:22,16:13, 17:24, 18:15,21:8, 22:19, 23:1,24:12, 25:13, 26:4,29:5, 29:6, 29:13,29:19, 31:2, 37:20,39:25, 40:6, 42:1,43:6, 43:15, 43:19,44:11, 44:21, 44:22,44:25, 45:16, 45:21,46:6, 47:25, 49:6,50:13, 50:15, 50:22,50:24, 51:1, 51:6,52:12, 53:16, 56:21,58:7, 58:8, 59:25,63:5, 64:2, 64:23,66:24, 69:6, 71:11,77:23, 80:15, 82:16,83:25, 84:2, 84:18,85:4, 85:21, 86:10,87:18, 88:18, 89:12,90:10, 90:14, 93:22,95:23, 96:6, 99:9,101:16, 101:20
One [15] - 1:17, 1:23,3:3, 3:20, 4:4, 10:4,16:24, 56:19, 64:10,64:11, 66:16, 66:21,80:13, 91:6, 100:10
ones [2] - 12:6, 39:15online [39] - 5:17,
7:12, 7:14, 8:2, 9:4,9:16, 9:23, 10:3,11:23, 12:13, 16:13,16:16, 16:19, 17:25,21:18, 27:25, 29:1,29:21, 34:23, 38:19,44:10, 44:13, 44:22,49:25, 56:21, 57:19,66:24, 67:17, 68:11,68:15, 69:24, 70:20,79:16, 79:23, 85:12,88:5, 96:10
open [3] - 18:21,54:17, 100:10
open-ended [1] -
54:17opened [1] - 68:17opinion [2] - 64:21,
65:3opinions [2] - 65:4,
80:15opportunities [1] -
90:21opportunity [8] - 37:8,
79:2, 79:3, 84:4,91:7, 92:25, 93:7,104:12
oppose [1] - 67:1opposed [1] - 31:11oral [1] - 46:25orally [2] - 89:1, 100:5order [37] - 5:18,
11:17, 17:18, 30:17,35:9, 37:25, 38:1,38:3, 43:4, 43:6,43:9, 46:14, 46:16,55:17, 56:12, 64:24,79:5, 82:7, 82:9,82:15, 86:14, 86:21,86:24, 87:1, 87:3,87:9, 87:16, 93:4,93:14, 98:2, 98:19,98:20, 98:23,100:21, 103:11,105:8
ordering [2] - 106:15Orders [1] - 11:1orders [6] - 41:18,
82:2, 87:10, 92:11,98:18, 101:3
organization [1] - 84:8organized [1] - 42:25original [1] - 52:19originally [5] - 28:24,
49:25, 53:8, 63:23,63:24
originals [2] - 15:19,51:20
originate [1] - 46:1originated [2] - 45:7,
47:3origination [1] - 47:10ORRICK [2] - 2:23,
3:16otherwise [1] - 88:22ought [5] - 31:3,
54:17, 54:22, 56:1,101:2
ourselves [1] - 12:19outlined [1] - 61:12outset [1] - 5:13outside [2] - 15:20,
98:19overcome [1] - 94:24overheard [1] - 91:22
overhearings [1] -91:23
overview [1] - 92:4own [14] - 21:19,
25:11, 43:2, 53:4,53:15, 53:16, 55:15,69:7, 84:5, 89:12,91:1, 93:20, 98:18,100:18
Pp.m [5] - 1:18, 30:25,
66:4, 107:19Page [3] - 72:10,
108:6page [13] - 2:25, 3:23,
6:12, 6:21, 9:7,25:17, 28:4, 71:14,72:5, 72:7, 74:9,100:8
pages [4] - 25:19,26:2, 45:1, 79:15
Pages [1] - 17:25paging [1] - 13:21pains [1] - 71:1paper [9] - 57:24,
58:1, 58:23, 58:24,69:4, 69:13, 69:14,69:20, 73:4
Papers [1] - 89:16papers [9] - 6:2, 10:9,
23:17, 40:23, 40:25,53:9, 64:22, 100:3,100:6
paragraph [1] - 6:22parallel [2] - 41:14,
63:7parents' [1] - 17:23Park [3] - 2:24, 3:12,
3:17Parmet [1] - 57:5part [24] - 11:5, 11:6,
11:8, 12:13, 13:11,23:5, 26:19, 32:18,35:19, 41:5, 50:13,50:15, 51:2, 54:22,72:20, 72:24, 73:17,74:15, 82:16, 84:19,104:18, 104:20,105:11
parte [1] - 42:8participate [1] - 52:8particular [12] - 10:4,
11:12, 18:19, 18:20,23:25, 24:1, 61:17,75:3, 82:8, 85:2,88:6, 95:14
particularly [8] -24:15, 36:12, 36:16,
12
56:4, 74:6, 85:7,89:19, 104:24
particulars [1] -100:18
parties [51] - 11:16,12:1, 18:23, 24:16,36:13, 38:9, 38:11,42:7, 43:5, 43:25,46:12, 47:1, 52:13,52:19, 53:24, 54:18,55:21, 55:22, 55:24,56:1, 56:20, 62:2,62:14, 62:19, 62:24,63:1, 63:3, 76:15,78:3, 79:2, 85:7,86:18, 88:1, 88:20,92:3, 92:24, 94:11,94:13, 99:19, 99:23,100:7, 100:16,101:4, 104:1, 104:4,104:6, 104:12,105:14, 105:21,107:11, 107:15
parties' [1] - 37:7parts [1] - 50:14party [17] - 10:20,
23:19, 23:20, 26:8,26:9, 37:25, 63:5,92:8, 92:19, 93:7,93:11, 93:13, 93:25,94:2, 98:4
pass [3] - 10:23,52:10, 65:24
passing [1] - 85:22past [6] - 9:3, 10:16,
21:14, 29:6, 94:19Patrick [1] - 19:13Pause [2] - 25:25,
27:7pause [2] - 7:5, 15:11pay [2] - 32:3, 69:10pdf [16] - 9:6, 9:15,
9:21, 22:12, 56:8,57:4, 57:8, 57:9,57:13, 57:14, 57:16,58:12, 59:6, 59:7,69:1
Pearl [1] - 104:10penalties [1] - 71:2pending [2] - 11:19,
12:24Pentagon [1] - 89:15people [14] - 32:3,
33:10, 38:6, 39:12,39:25, 40:2, 48:2,49:1, 49:8, 49:13,74:11, 88:9, 94:8,94:17
people's [1] - 25:14per [1] - 31:25
percipient [1] - 69:24percussion [1] - 93:3perfect [1] - 5:20performance [1] -
34:2performing [1] - 21:14perhaps [14] - 15:22,
36:14, 37:13, 37:23,41:7, 43:2, 47:22,53:15, 61:5, 89:13,90:23, 97:13, 98:15
Perhaps [1] - 73:25period [1] - 35:25perjury [1] - 71:2permission [2] -
24:24, 67:6permit [2] - 24:15,
47:21permits [2] - 90:24,
92:9permitting [1] -
105:13person [10] - 24:2,
30:25, 37:25, 58:13,71:19, 71:23, 85:13,95:11, 95:21, 102:19
person's [2] - 25:13,91:1
personal [6] - 67:23,79:24, 91:9, 94:9,94:10, 96:12
personally [1] - 51:9personnel [2] - 77:25,
78:7perspective [2] -
27:19, 90:12persuade [1] - 88:21persuasive [1] - 97:14Peter [2] - 2:13, 43:14pfd [1] - 56:24ph [1] - 8:23phase [1] - 52:18phone [6] - 5:8, 17:23,
24:6, 43:19, 66:7,67:4
php [7] - 56:25, 57:2,57:9, 57:11, 57:12,57:16
pick [2] - 66:17, 104:9picked [1] - 91:24Place [2] - 3:3, 3:20place [4] - 9:24, 53:16,
82:2, 97:2placed [1] - 41:13placing [1] - 5:16Plaintiff [2] - 1:4, 2:3plaintiff [1] - 65:1plaintiffs [1] - 52:2plan [9] - 47:24, 55:12,
55:23, 56:2, 56:20,
62:2, 62:3, 62:5,62:15
Plate [1] - 107:12play [1] - 29:22playing [1] - 66:19pleadings [1] - 101:1point [38] - 7:9, 9:21,
13:23, 16:23, 18:8,25:3, 25:6, 27:17,29:2, 30:10, 30:22,40:18, 41:3, 45:21,46:9, 47:10, 53:3,53:20, 54:2, 57:10,58:3, 61:8, 61:24,81:14, 81:23, 82:21,82:22, 82:23, 83:10,85:10, 85:19, 86:10,86:21, 87:22, 87:23,88:4, 93:5, 105:23
pointed [1] - 73:25pointedly [1] - 43:2pointing [1] - 107:5points [5] - 14:8, 18:7,
56:19, 80:24, 89:22policy [1] - 94:7poor [1] - 68:13pop [1] - 71:25portion [2] - 31:9,
37:13position [5] - 7:18,
34:6, 38:21, 76:3,98:23
positions [4] - 34:5,37:7, 52:20, 76:20
possession [4] - 18:5,24:10, 52:7, 75:13
possible [10] - 11:10,13:3, 15:18, 29:23,54:9, 69:23, 70:1,77:4, 77:5, 107:9
possibly [4] - 13:9,14:21, 40:22, 71:16
post [6] - 24:9, 75:15,76:1, 81:17, 86:4,103:2
posted [27] - 5:17,7:12, 7:14, 8:7, 9:4,9:5, 9:16, 11:21,16:12, 16:15, 16:18,28:9, 28:19, 29:7,29:25, 30:10, 36:12,38:19, 48:6, 49:24,50:6, 51:8, 61:2,61:4, 67:19, 75:20,96:16
posthumous [1] -89:17
posting [9] - 7:6, 8:2,39:11, 65:11, 80:7,80:11, 84:9, 84:14,
92:22postings [3] - 38:24,
39:5potential [6] - 10:13,
28:11, 32:13, 33:10,39:7, 43:23
Potentially [1] - 45:14power [2] - 10:25,
97:21practicality [2] - 99:7,
99:12practically [1] - 32:22practice [2] - 15:15,
39:11practices [1] - 33:1pre [3] - 28:10, 48:23,
83:6pre-existed [2] -
28:10, 83:6pre-existing [1] -
48:23precipitously [1] -
100:23precisely [1] - 56:7predecessor [2] -
14:23, 17:22preexist [1] - 48:2preference [1] - 70:22preliminarily [3] -
50:9, 52:3, 63:1preliminary [11] -
56:14, 78:25, 79:1,79:5, 87:24, 92:6,92:14, 93:4, 93:6,99:16, 103:9
premise [1] - 7:19prepared [7] - 17:19,
38:9, 61:16, 63:14,76:20, 83:22, 103:3
presence [1] - 92:3present [6] - 20:6,
47:23, 75:17, 78:9,78:14, 87:14
presented [7] - 85:2,85:3, 90:8, 91:3,96:15, 97:5, 98:1
presenting [1] - 99:1presently [1] - 100:20president [1] - 94:20press [3] - 42:24,
42:25, 83:17pressed [3] - 11:4,
11:5, 85:3pressing [1] - 33:13presumably [1] -
22:17Presuming [1] - 81:4pretermit [1] - 100:22pretty [4] - 6:12,
37:21, 49:6, 87:8
previous [1] - 34:5primarily [1] - 47:13primary [3] - 23:23,
86:5, 90:22primary-source [2] -
86:5, 90:22principal [1] - 79:4principle [1] - 97:15principled [1] - 99:13principles [2] - 74:14,
90:15printout [1] - 45:15privacy [4] - 86:9,
91:6, 91:7, 91:9private [20] - 20:16,
20:19, 21:19, 21:20,27:9, 27:13, 27:18,29:5, 30:7, 32:20,65:11, 79:13, 79:23,83:4, 85:1, 85:13,92:1, 94:6, 94:8,94:15
privilege [2] - 60:14,95:20
privileged [1] - 60:4probable [2] - 8:21,
50:12problem [8] - 20:5,
26:21, 33:8, 39:7,40:4, 52:19, 84:18,104:16
problematic [2] - 80:5,105:11
problems [3] - 8:12,32:16, 66:16
procedural [2] - 89:5,90:3
proceed [1] - 62:24proceeded [1] - 27:15proceeding [1] - 18:21proceedings [3] - 5:7,
22:1, 95:5process [8] - 38:10,
39:16, 55:14, 59:22,60:12, 82:1, 94:16,104:20
Procter [4] - 65:17,65:21, 83:12, 91:24
produce [1] - 39:15produced [16] - 8:9,
10:7, 22:8, 22:9,22:14, 22:15, 45:2,47:8, 49:14, 49:24,50:11, 50:16, 51:2,56:23, 56:24, 83:20
production [1] - 8:5professional [1] -
18:15Professor [1] - 102:20progress [1] - 79:9
13
proliferates [1] - 40:4proliferation [1] -
28:11prompt [2] - 36:20,
99:21promptly [7] - 11:10,
89:1, 89:5, 89:6,92:2, 99:20, 100:16
pronounce [1] - 5:23properly [5] - 5:10,
80:11, 87:11, 101:3,107:4
property [12] - 6:1,79:23, 79:24, 80:21,81:20, 81:21, 83:7,84:9, 84:25, 88:14,90:17, 91:5
proportion [1] - 17:19proposal [4] - 43:24,
101:5, 104:7propose [3] - 38:12,
62:10, 62:14proposition [2] -
83:22, 83:23proprietary [2] - 94:4,
96:4PROSKAUER [2] -
3:2, 3:19prospective [1] -
37:22protect [2] - 5:21, 91:7protected [5] - 81:7,
81:9, 86:16, 86:19,107:8
protecting [2] - 91:21,91:22
protection [8] - 5:25,20:20, 80:20, 83:19,85:7, 88:17, 102:9,103:7
protective [24] - 5:18,11:17, 37:25, 38:1,38:3, 43:9, 46:13,46:16, 55:17, 82:2,82:7, 82:9, 82:15,86:14, 86:20, 86:24,87:1, 87:9, 87:16,93:14, 100:21,101:3, 103:11, 105:8
proves [1] - 62:9provide [16] - 6:9,
14:15, 35:11, 40:14,53:10, 61:1, 64:8,64:11, 65:4, 88:11,90:9, 90:12, 93:2,99:19, 101:4, 103:23
provided [6] - 5:6,15:10, 16:5, 45:1,67:18, 82:24
Providence [3] - 89:2,
91:17, 105:11provident [1] - 93:8provides [5] - 15:22,
80:13, 80:14, 84:1,103:25
providing [3] - 93:7,93:22, 102:17
provisional [2] -52:13, 92:25
prudence [1] - 17:18prudential [2] - 24:12,
43:3public [35] - 16:25,
27:15, 27:18, 32:11,32:19, 37:17, 40:9,40:17, 41:9, 41:11,43:1, 60:6, 60:9,71:20, 71:24, 72:1,73:17, 73:18, 73:22,74:8, 74:16, 83:6,83:8, 84:15, 84:16,85:15, 93:16, 94:6,95:13, 98:10, 98:12,99:1, 99:2, 99:3
public-figure [1] -83:6
publication [1] - 90:20publicity [1] - 90:14publicly [8] - 10:3,
14:11, 21:4, 32:7,32:9, 32:10, 35:22,72:22
publish [3] - 18:5,75:25, 102:7
published [1] - 58:5pull [1] - 9:6purely [1] - 83:4purposes [4] - 37:24,
80:5, 81:14, 84:23pursuant [4] - 7:11,
16:5, 33:4, 92:9pursue [2] - 10:20,
10:21pushed [1] - 75:7put [23] - 9:21, 10:3,
10:12, 10:21, 14:7,22:18, 22:25, 24:11,29:20, 32:15, 39:19,39:24, 40:23, 45:9,50:2, 50:4, 62:5,68:15, 68:17, 75:16,88:9, 94:20, 102:9
putative [1] - 79:3Putting [1] - 59:25
Qquality [3] - 51:21,
96:15, 99:9questioned [2] - 51:15
questions [6] - 39:20,61:14, 74:21, 77:17,89:20, 89:25
quick [5] - 26:17, 28:1,33:15, 48:17, 64:5
quickly [9] - 13:22,29:22, 38:22, 40:22,40:23, 67:7, 78:1,94:18, 100:18
QUINN [1] - 2:14quite [7] - 29:20, 49:5,
60:11, 73:10, 77:12,90:1, 99:19
quote [3] - 89:21,90:2, 96:25
quoted [2] - 30:1, 30:2
Rraise [5] - 25:10,
31:14, 82:23, 83:10,97:9
raised [8] - 37:24,41:16, 71:11, 74:21,91:12, 97:9, 98:3,105:23
raising [2] - 12:22,86:23
ranking [1] - 8:19rapidly [1] - 7:16rare [1] - 90:5rather [11] - 13:17,
14:2, 52:13, 53:8,56:10, 56:13, 60:20,78:1, 98:17, 99:13,107:5
reach [2] - 56:20,99:10
reached [1] - 93:5reaches [1] - 90:1reaching [1] - 53:13read [13] - 6:10, 26:17,
32:1, 38:22, 68:15,83:11, 86:12, 86:15,87:11, 90:25, 96:25,105:12
readers [3] - 40:20,75:21, 84:4
reading [7] - 6:15,28:1, 28:2, 33:15,38:24, 39:12, 88:13
reads [2] - 80:15,80:17
real [4] - 38:12, 60:21,72:1, 105:21
realized [1] - 14:23really [18] - 5:21, 17:2,
18:12, 27:17, 30:5,31:22, 33:7, 45:18,46:2, 46:12, 49:16,
54:19, 55:3, 55:8,61:10, 69:25, 78:3,91:5
reason [13] - 17:2,28:10, 39:23, 40:21,41:9, 43:10, 54:23,62:21, 65:9, 74:5,79:6, 93:11, 97:11
reasonable [5] - 55:1,56:2, 56:9, 84:10
reasons [3] - 31:4,65:22, 99:15
receipt [1] - 93:1received [5] - 7:17,
9:11, 14:11, 53:1recent [1] - 98:15recently [1] - 7:18Recess [1] - 66:4recess [3] - 3:2, 66:3,
107:18recitation [1] - 14:15recitations [1] - 11:11recognize [3] - 11:9,
54:10, 59:22recognized [1] - 8:24recollection [6] -
12:12, 13:16, 16:4,16:7, 23:7, 60:23
recollections [1] -23:8
reconvene [3] - 36:20,61:13, 62:11
record [26] - 7:19,7:24, 9:18, 9:24,12:9, 12:14, 12:23,13:5, 13:11, 15:14,15:15, 15:20, 23:5,23:10, 23:12, 34:12,34:24, 44:6, 51:3,51:6, 78:11, 78:12,93:2, 96:20
recording [1] - 85:13records [3] - 13:12,
15:9, 42:23recreate [1] - 68:16recreated [1] - 69:5recur [1] - 89:17red [1] - 24:5redact [3] - 17:24,
67:23, 72:16redacted [7] - 18:3,
50:2, 50:3, 51:10,85:11, 100:14
redacting [2] - 25:12,71:16
redaction [4] - 31:20,74:7, 85:6, 100:8
reduced [3] - 58:12,88:18, 100:12
refer [1] - 85:18
reference [12] - 13:7,22:11, 31:2, 45:6,73:10, 90:14, 97:3,97:10, 99:8, 101:10
referenced [2] - 31:1,91:23
references [1] - 55:18referred [4] - 13:17,
65:16, 65:17, 98:4referring [1] - 69:7refers [1] - 73:22refine [1] - 47:22reflect [1] - 104:12reflecting [1] - 21:19reflection [1] - 97:14refreshing [1] - 60:23regard [1] - 95:7regarding [4] - 52:22,
61:1, 63:2, 90:13related [6] - 29:13,
35:20, 64:24, 80:24,81:24, 99:7
Related [1] - 1:6relates [1] - 35:15relatively [2] - 8:18,
100:16relaxation [1] - 100:21relayed [1] - 66:20relevance [1] - 35:6relevant [6] - 21:13,
26:11, 49:1, 78:7,80:12, 95:10
relief [3] - 37:23,61:20, 84:23
remain [2] - 12:2,105:4
remained [2] - 14:10,81:9
remaining [1] - 101:20remains [1] - 21:13remarkably [1] - 99:19remarks [2] - 35:19,
39:24remedial [1] - 37:24remedies [2] - 81:17remedy [8] - 10:22,
11:7, 36:8, 37:19,81:20, 82:5, 82:18,91:15
remember [4] - 11:22,12:3, 13:18, 42:24
reminded [1] - 97:17remove [1] - 67:20removed [3] - 8:8,
67:24, 95:16Renee [1] - 2:14repeated [1] - 86:13replication [1] - 15:17report [7] - 66:10,
66:12, 99:1, 102:24,
14
103:21, 103:22,104:21
reported [2] - 72:22,97:18
Reporter [3] - 1:22,108:4, 108:17
reporter [11] - 5:9,15:1, 54:6, 66:17,67:10, 69:21, 70:2,70:9, 70:19, 90:13,91:2
reporter's [1] - 83:24reporting [1] - 72:24reposted [1] - 28:8represent [1] - 76:1representation [3] -
52:22, 75:14, 95:15representations [2] -
60:2, 60:5Represented [4] - 2:4,
2:21, 3:7, 4:2representing [1] -
27:4reproduced [3] -
68:21, 68:22, 96:13reproduction [1] -
45:4republishing [2] -
83:19reputations [1] -
91:22request [14] - 5:18,
10:1, 13:18, 15:5,16:6, 17:11, 61:20,64:8, 67:24, 69:14,100:1, 100:3,100:24, 106:5
requested [1] - 102:13requests [3] - 5:12,
5:16, 107:12require [3] - 15:16,
89:6, 103:15required [2] - 31:5,
56:8requires [2] - 18:16,
41:16requiring [1] - 56:10research [1] - 78:8resignation [1] - 99:13resigned [1] - 99:9resist [1] - 19:18resolution [2] - 87:25,
88:1resolve [3] - 43:23,
89:1, 92:2resolved [1] - 97:3resort [1] - 61:10respect [33] - 5:13,
9:25, 26:5, 27:16,33:12, 36:6, 36:8,
36:19, 37:1, 37:14,37:23, 55:5, 56:22,59:11, 60:2, 63:4,70:18, 71:25, 74:7,74:19, 75:1, 76:18,85:4, 85:9, 85:12,94:2, 97:20, 97:23,100:14, 100:17,100:22, 101:5,102:18
respectfully [3] -17:20, 18:16, 72:2
respond [6] - 38:22,39:16, 40:6, 63:14,100:16, 107:14
responded [1] - 99:19respondents [1] -
79:3responds [1] - 24:19response [6] - 60:21,
70:5, 99:21, 100:17,100:25, 102:15
responsibilities [1] -105:14
responsibility [1] -105:15
responsible [1] - 81:6restate [1] - 64:22restrain [4] - 5:16,
5:19, 81:16, 92:20restraining [2] -
64:24, 93:4restraint [22] - 5:12,
76:11, 81:14, 81:18,83:9, 84:24, 85:17,89:11, 89:14, 89:20,92:1, 92:16, 96:2,96:23, 97:21, 97:23,98:1, 98:9, 99:4,99:10, 102:6, 102:14
restraints [3] - 37:20,91:15, 91:16
restrict [1] - 99:4result [5] - 55:14,
55:16, 81:12, 81:13,89:4
resulted [1] - 40:13retire [1] - 62:2retraining [1] - 79:5return [1] - 56:15returned [1] - 58:12retype [1] - 68:16reveals [2] - 9:9, 9:10reverse [1] - 84:14review [6] - 12:12,
37:17, 90:22, 93:8,102:25, 104:6
revisit [1] - 46:22rhetoricians [1] -
78:15
rid [1] - 85:9right-hand [1] - 57:20rights [5] - 24:9,
80:21, 86:10, 91:6,106:11
ringing [1] - 40:8risen [1] - 99:20risk [1] - 102:19RITVO [6] - 6:18,
24:17, 24:19, 25:1,66:2, 101:6
Ritvo [3] - 4:3, 87:6,101:5
RMR [3] - 1:21, 108:4,108:16
road [1] - 77:5Road [3] - 2:23, 3:11,
3:17Robert [5] - 3:10, 4:5,
8:24, 14:17, 99:24role [3] - 31:17, 63:2,
78:16roll [1] - 5:6ROM [2] - 56:24, 57:7ROSE [2] - 3:2, 3:19roughly [1] - 8:21round [1] - 67:25RUDNICK [1] - 4:3rule [3] - 61:19, 88:25,
97:5rules [1] - 97:3Rules [1] - 7:11ruling [4] - 87:24,
97:6, 101:18, 106:3run [1] - 38:19rushed [1] - 42:20rushing [1] - 75:25
Ssalacious [1] - 96:15salient [3] - 26:21,
95:1, 96:1salutary [1] - 93:21sample [2] - 8:17, 49:5samples [1] - 48:2San [2] - 3:9, 65:3sanction [1] - 10:25Santa [1] - 65:3sat [1] - 52:9sauce [1] - 55:2save [2] - 65:25, 106:8SAVERIN [1] - 1:6Saverin [1] - 3:6saw [3] - 12:19, 28:7,
68:18Saxon [1] - 91:14scan [1] - 59:5scanned [7] - 58:2,
59:1, 68:14, 69:12,
69:18, 69:19, 69:20scanning [5] - 58:16,
58:18, 58:22, 59:8,69:8
scattered [1] - 52:5scent [2] - 45:10,
45:12schedule [3] - 10:21,
56:9, 104:5Schoenfeld [1] - 2:9scope [6] - 5:24,
10:24, 80:19, 82:14,83:18, 85:17
scrambled [1] - 52:3Scribd [1] - 28:4SCRIBD [1] - 28:5scrivner [1] - 28:13se [2] - 31:25, 63:2seal [22] - 7:4, 9:20,
10:2, 12:2, 14:10,19:15, 22:25, 40:12,40:13, 41:13, 41:19,44:6, 58:24, 81:5,81:7, 101:7, 101:12,101:15, 105:4,106:24
sealed [1] - 19:7searched [1] - 8:5seated [2] - 5:3, 66:6second [15] - 11:6,
41:3, 42:16, 44:14,45:22, 53:3, 61:24,67:25, 68:10, 71:21,73:20, 76:14, 77:22,78:18, 82:23
secret [3] - 88:7,91:10, 91:20
secrets [1] - 83:3section [1] - 88:5sections [1] - 18:19Security [2] - 18:2,
50:1see [17] - 10:11, 22:10,
22:20, 29:7, 35:17,38:18, 45:24, 47:9,62:24, 65:25, 69:17,79:6, 80:16, 80:17,86:13, 97:11, 106:14
seek [4] - 47:15,102:9, 103:6, 106:3
seeking [1] - 32:21seeks [2] - 56:10,
100:12seem [2] - 60:1, 93:12selection [1] - 86:3sense [5] - 29:14,
37:16, 90:21, 90:24,94:1
sensitive [4] - 26:14,34:4, 46:22, 47:16
sensitivity [1] - 59:22sent [8] - 15:3, 40:11,
57:4, 57:5, 68:13,69:12, 69:14, 69:21
separate [5] - 16:23,41:17, 74:20, 86:9,88:15
September [1] - 78:10sequences [1] - 56:9sequentially [1] - 63:7series [4] - 61:14,
89:23, 90:3, 91:5serious [2] - 11:13,
46:24seriously [2] - 38:2,
55:24served [1] - 40:12serves [1] - 107:13service [2] - 97:15,
98:25session [3] - 5:2, 66:5,
93:3set [3] - 55:1, 84:7,
93:20sets [1] - 16:24setting [2] - 59:23,
105:20several [2] - 21:15,
45:20Shafroth [1] - 3:8Shame [1] - 71:18shame [6] - 23:21,
31:3, 36:17, 73:24,94:12, 95:18
shape [1] - 80:2shared [1] - 89:12shoe [1] - 96:7short [5] - 16:1, 19:4,
25:9, 60:25, 98:6shortly [3] - 77:2,
77:3, 103:13Shortly [1] - 36:3shout [2] - 54:11, 55:8showings [1] - 41:12shown [2] - 58:12,
98:7shut [1] - 76:13Shuttlesworth [1] -
105:13side [10] - 8:1, 8:15,
10:12, 10:22, 44:8,48:3, 50:6, 59:25,90:10, 91:4
sign [1] - 48:18signed [1] - 48:19significance [1] - 9:13signing [1] - 87:2similar [4] - 31:8,
52:17, 64:25, 84:8simply [10] - 18:23,
15
31:4, 42:8, 52:20,74:5, 75:5, 84:9,100:15, 101:12,103:2
single [1] - 7:12site [4] - 28:17, 28:23,
63:20, 63:24sites [1] - 28:20situations [1] - 83:16Sixth [1] - 91:24size [3] - 8:18, 59:6,
59:7skill [1] - 108:7skip [2] - 20:23, 27:24slippery [4] - 27:17,
27:22, 79:13, 84:19slippery-slope [2] -
27:17, 84:19slope [4] - 27:17,
27:22, 79:13, 84:19small [1] - 8:18smaller [2] - 59:7,
69:2smart [1] - 98:22sneakiness [1] - 98:25sneaky [1] - 98:22Social [2] - 18:1, 50:1solely [1] - 75:2solved [1] - 66:13someone [20] - 8:25,
9:3, 9:10, 10:23,19:22, 45:9, 49:10,72:4, 74:8, 75:2,85:18, 86:23, 90:25,91:9, 91:11, 94:21,95:3, 95:12, 97:20,98:19
someplace [1] - 10:10somewhat [6] - 11:11,
31:8, 40:22, 80:22,84:7, 88:15
somewhere [3] - 9:17,47:8, 47:9
soon [1] - 18:2sooner [1] - 107:13sorry [15] - 10:6,
17:13, 27:8, 43:17,45:11, 57:1, 57:13,57:18, 70:7, 71:23,72:8, 75:7, 77:12,101:23, 103:4
sort [13] - 18:22,20:12, 25:3, 25:4,42:8, 44:7, 47:21,48:9, 52:5, 74:25,80:10, 92:21, 96:11
sought [4] - 14:6,22:24, 40:12, 94:14
sounding [1] - 102:19source [36] - 14:14,
14:15, 36:7, 37:10,37:11, 38:12, 39:13,42:19, 45:12, 47:17,54:19, 54:20, 55:10,60:3, 60:4, 61:1,62:3, 62:10, 62:12,62:22, 63:5, 80:11,80:12, 83:19, 84:2,84:14, 84:15, 86:5,90:22, 90:25, 93:17,95:22, 104:13
sources [3] - 10:13,29:15, 61:3
speaking [5] - 43:18,54:8, 59:19, 68:5,82:1
special [2] - 43:5,92:15
specific [8] - 5:17,10:1, 17:6, 17:8,18:12, 31:16, 61:20,74:6
specifically [6] - 17:5,23:11, 24:8, 65:16,97:8, 106:15
spell [2] - 67:9, 102:21spirited [1] - 97:25splattered [1] - 31:18spoken [1] - 71:18spring [1] - 36:1St [1] - 3:14staff [2] - 67:23, 68:16stage [2] - 31:12, 82:6stamp [4] - 13:23,
20:14, 44:11, 45:1stamped [1] - 45:3stand [3] - 16:14,
19:24, 107:17standard [1] - 84:21standards [3] - 8:18,
92:5, 92:14stands [1] - 59:11start [7] - 6:9, 19:9,
27:18, 32:20, 38:14,38:15, 80:23
start-up [1] - 32:20started [1] - 97:5state [1] - 96:20statement [19] - 6:12,
7:15, 10:10, 12:13,21:2, 23:4, 23:10,26:19, 29:16, 32:16,33:18, 36:4, 37:1,46:18, 72:19, 79:16,88:6, 95:7, 96:3
STATES [1] - 1:1states [1] - 6:22States [5] - 1:16, 1:22,
6:25, 83:1, 108:5Steno [1] - 1:24
stenographer's [1] -100:11
stenotype [1] - 108:8step [7] - 30:6, 34:19,
42:13, 46:6, 60:15,61:5
Step [1] - 46:7Stephen [1] - 85:22steps [1] - 38:10Steven [2] - 3:1, 3:19sticker [1] - 45:22still [7] - 7:16, 14:12,
21:13, 23:2, 38:18,44:6, 59:11
stock [2] - 32:3, 32:4stop [5] - 5:21, 17:3,
17:4, 70:15, 102:22story [4] - 28:14,
72:25, 73:17, 74:16stranger [1] - 74:25strangers [3] - 36:14,
87:2, 92:11streamline [1] - 77:1Street [3] - 2:6, 3:9,
106:23strongly [1] - 98:17student [2] - 74:4stylized [1] - 81:19subject [21] - 5:18,
7:6, 31:7, 35:10,35:13, 37:14, 37:25,41:9, 77:11, 81:17,87:16, 93:14, 95:17,95:24, 96:22, 98:20,98:21, 99:17, 100:7,103:11, 105:7
submission [8] - 6:6,6:11, 10:12, 14:13,15:18, 26:16, 28:2,59:12
submissions [3] -88:8, 94:15, 100:15
submit [5] - 7:20,53:4, 53:6, 70:3,102:5
submitted [24] - 6:3,7:3, 7:25, 8:14, 9:20,9:25, 11:18, 12:1,14:6, 19:10, 20:7,21:25, 22:21, 23:18,26:19, 28:14, 44:12,44:14, 44:25, 50:5,50:24, 51:14, 104:7
submitting [3] - 40:15,52:13, 52:15
subscribed [1] - 71:1subscriber [1] - 74:4subsequent [1] -
91:15substance [3] - 19:14,
101:11, 101:14substantially [3] -
32:14, 35:22, 88:18substantive [2] - 89:4,
91:25success [3] - 92:17,
92:18, 93:10Success [1] - 92:18successful [2] -
41:22, 92:19suffer [1] - 41:23sufficient [2] - 94:24,
100:17sufficiently [1] - 84:22suffusing [1] - 85:24suggest [7] - 33:15,
42:6, 52:13, 52:21,63:4, 100:13, 103:5
suggested [2] - 40:11,63:8
suggesting [4] -10:14, 41:25, 42:1,53:13
suggestion [4] - 13:6,23:19, 55:10, 62:1
suggestions [2] -30:19, 55:19
suggests [5] - 10:8,28:2, 38:24, 96:16,98:17
suitors [1] - 33:10summary [3] - 11:20,
82:11, 82:14Superior [2] - 65:2,
65:3support [1] - 7:22supporting [1] - 88:14suppose [5] - 11:12,
84:17, 87:13, 100:1,105:12
supposed [2] - 38:6,82:3
Supreme [3] - 64:21,83:1, 89:13
surely [1] - 31:14surprised [1] - 40:19suspect [2] - 29:19,
32:13suspected [1] - 69:2SUTCLIFFE [2] - 2:23,
3:16system [1] - 105:3
Ttab [1] - 68:21tag [1] - 91:5talks [5] - 6:3, 32:1,
32:2, 32:3, 65:16tap [2] - 91:19, 93:2
tapped [2] - 63:6, 63:7tasks [1] - 61:13taste [1] - 55:3tat [1] - 55:19tech [1] - 71:25tee [1] - 82:7telephone [11] - 2:8,
2:9, 2:9, 2:13, 2:13,2:14, 3:2, 3:8, 3:10,4:5, 75:6
temporary [2] - 79:5,93:4
temptation [1] - 19:19tend [1] - 94:17tendered [1] - 93:1tends [1] - 80:22Termaine [1] - 67:12terms [5] - 18:8,
56:11, 74:23, 91:21test [1] - 47:17tested [1] - 106:9testify [1] - 95:25testimony [5] - 25:19,
86:11, 86:12, 86:15,94:13
THE [296] - 1:11, 5:5,6:5, 6:14, 6:20, 7:5,8:3, 8:13, 8:22, 8:25,9:19, 10:11, 10:18,11:3, 11:16, 11:25,12:7, 12:16, 13:6,13:13, 13:20, 14:13,14:19, 14:24, 15:11,16:1, 16:4, 16:9,16:18, 16:21, 17:5,17:12, 17:15, 17:17,18:9, 18:12, 18:18,19:2, 19:5, 19:9,19:16, 19:18, 19:22,20:2, 20:9, 20:11,20:15, 20:21, 20:25,21:8, 21:11, 21:16,21:21, 21:24, 22:3,22:8, 22:10, 22:19,23:1, 23:6, 23:13,23:16, 23:25, 24:2,24:7, 24:14, 24:18,24:21, 24:25, 25:2,25:6, 25:15, 25:24,26:3, 26:7, 26:15,27:2, 27:6, 27:11,27:24, 28:12, 28:21,28:25, 29:9, 29:14,30:5, 30:16, 30:21,30:25, 31:12, 31:16,32:6, 32:9, 32:22,32:25, 33:6, 33:13,33:20, 33:24, 34:10,34:13, 34:17, 34:19,35:2, 35:4, 35:6,
16
35:17, 35:24, 36:3,36:6, 36:24, 37:3,37:6, 38:21, 39:4,39:11, 39:22, 40:5,41:2, 41:14, 42:3,42:12, 43:1, 43:8,43:13, 43:16, 43:21,44:13, 44:20, 44:24,45:4, 45:9, 45:12,45:15, 45:18, 45:24,46:2, 46:13, 46:25,47:5, 47:11, 47:19,48:8, 48:15, 48:17,48:21, 48:23, 49:1,49:3, 49:8, 49:20,50:13, 50:19, 50:21,50:24, 51:4, 51:12,51:22, 51:25, 52:12,53:2, 53:11, 53:15,53:22, 54:5, 54:10,54:14, 54:25, 55:7,56:18, 57:1, 57:3,57:21, 58:6, 58:11,58:15, 58:20, 59:3,59:9, 59:15, 59:21,59:25, 60:8, 60:11,60:19, 61:12, 61:25,62:8, 62:17, 63:12,63:21, 63:24, 64:9,64:13, 64:16, 64:19,65:6, 65:13, 65:18,65:24, 66:3, 66:5,66:7, 66:9, 66:15,66:23, 67:2, 67:9,67:13, 68:1, 68:4,68:7, 68:9, 68:20,68:25, 69:6, 69:11,69:17, 69:19, 69:22,70:4, 70:8, 70:12,70:15, 70:18, 70:23,71:5, 71:8, 71:17,71:21, 72:3, 72:7,72:9, 72:11, 72:14,72:17, 73:1, 73:5,73:8, 73:13, 73:20,73:22, 74:18, 75:10,75:16, 76:2, 76:8,76:10, 76:15, 76:22,77:7, 77:14, 77:18,77:21, 78:2, 78:24,79:11, 79:17, 79:20,80:2, 81:3, 81:9,82:4, 82:25, 83:21,84:17, 85:18, 86:3,86:18, 86:22, 87:23,88:12, 88:20, 88:25,92:13, 96:20, 97:1,100:9, 101:8,101:10, 101:19,101:22, 101:24,102:11, 103:8,
103:19, 104:3,104:18, 105:5,106:4, 106:8,106:17, 106:21,107:2, 107:10,107:17
Thefacebook [6] -2:19, 12:12, 12:23,54:21, 56:13, 93:11
THEFACEBOOK [1] -1:8
themselves [8] - 5:8,15:9, 39:13, 41:23,60:24, 88:19, 93:12,94:13
theory [1] - 89:22thereabouts [1] - 15:7they've [6] - 10:9,
42:23, 47:16, 48:9,79:25, 102:3
thinking [4] - 33:2,60:23, 63:1, 87:3
third [11] - 23:19,23:20, 24:15, 26:8,26:9, 36:13, 64:23,85:7, 89:18, 94:11
thoughtful [2] - 90:1,102:25
thoughts [4] - 21:20,85:13, 88:22, 91:10
three [14] - 7:4, 10:7,12:8, 15:6, 47:8,49:21, 50:17, 51:7,51:9, 63:25, 64:1,64:11, 65:4, 65:20
throughout [1] - 77:20throw [3] - 13:21,
45:10, 45:12thrust [2] - 62:17,
98:14Thucydides [1] -
97:19tidied [1] - 99:17Tighe [6] - 2:5, 52:2,
60:16, 60:18, 60:19,76:22
TIGHE [8] - 2:6, 52:1,52:24, 53:3, 53:12,54:2, 60:18, 76:23
timely [1] - 80:9tit [1] - 55:19titillation [1] - 85:1today [14] - 14:10,
19:24, 27:4, 28:9,34:6, 39:24, 40:1,48:2, 72:22, 77:2,78:7, 89:7, 94:17,99:25
together [3] - 40:23,62:5, 88:10
tolerable [1] - 90:9took [2] - 22:5, 24:5top [3] - 54:9, 57:8,
68:22topic [1] - 90:13toward [5] - 10:21,
36:10, 38:11, 80:3,93:7
towards [1] - 54:13tracks [1] - 53:7trade [4] - 80:5, 83:3,
84:8, 88:7traded [1] - 21:4tradition [1] - 91:14traditional [1] - 92:5traditions [1] - 90:23traffic [1] - 31:18transcript [8] - 25:20,
31:9, 71:12, 100:11,100:12, 100:14,108:6
Transcript [1] - 1:24transcription [1] -
108:8transparency [4] -
84:3, 94:8, 98:14,100:2
treat [2] - 93:6, 93:22treatment [2] - 82:16,
90:1Tremaine [1] - 14:18TREMAINE [1] - 4:7trial [1] - 42:14tried [3] - 14:25,
77:20, 105:6troubles [1] - 43:15true [8] - 9:22, 11:2,
14:4, 46:19, 54:25,59:2, 97:6, 108:7
truly [1] - 72:21try [13] - 5:20, 11:13,
18:9, 18:14, 19:16,48:4, 52:4, 55:1,64:3, 78:17, 80:18,102:9, 105:15
trying [11] - 5:21,19:20, 29:11, 29:22,30:5, 40:16, 43:22,54:8, 62:19, 99:9,101:24
Tuesday [3] - 70:21,70:24, 71:5
turn [10] - 26:15,59:10, 62:12, 69:19,73:3, 92:5, 92:13,95:9, 96:3, 96:10
turning [3] - 11:7,23:13, 71:21
Turning [1] - 97:8turns [1] - 44:9
tutor [1] - 20:10two [34] - 7:13, 11:3,
12:8, 16:23, 21:9,25:14, 32:17, 36:8,38:14, 43:16, 43:21,44:17, 45:1, 46:7,50:10, 51:4, 51:5,51:13, 52:6, 56:19,64:5, 64:8, 65:10,65:19, 66:13, 66:21,67:7, 70:6, 80:24,83:13, 100:9, 103:18
type [5] - 20:4, 83:9,84:12, 85:16, 91:9
typed [1] - 68:18
UU.S.C [1] - 87:10ultimate [2] - 30:11,
90:5ultimately [2] - 74:14,
90:1un-ringing [1] - 40:8unacceptable [1] -
99:3unambiguous [1] -
89:23under [41] - 7:4, 7:20,
8:18, 9:20, 10:2,12:2, 14:10, 22:25,24:4, 24:10, 26:19,40:12, 40:13, 41:13,41:19, 44:6, 58:24,60:24, 71:1, 77:8,78:13, 81:5, 81:7,81:19, 82:15, 86:14,87:4, 87:14, 88:17,95:7, 95:20, 98:7,101:7, 101:11,101:14, 105:3,105:4, 106:24
under-seal [1] -106:24
undergraduate [1] -16:19
underlying [7] - 38:5,80:16, 80:17, 80:20,84:2, 85:20, 92:11
understood [1] -82:12
undertaken [1] - 11:9undertaking [1] - 55:2undertook [1] - 93:15unfairly [1] - 36:15unfiltered [2] - 80:14,
80:15unfortunately [1] -
73:13UNITED [1] - 1:1
United [5] - 1:16, 1:22,6:25, 83:1, 108:5
universe [4] - 11:20,16:9, 37:21, 38:17
unless [3] - 21:3,81:15, 101:10
unlikely [1] - 36:25unnecessary [1] -
77:5unruly [1] - 93:23unseal [2] - 100:3,
100:6unsealing [1] - 100:15unsuccessful [1] -
93:7untidy [1] - 98:21up [37] - 8:2, 9:7, 12:4,
16:10, 20:6, 23:19,24:3, 31:3, 32:20,36:17, 37:17, 39:24,47:23, 50:2, 50:4,52:10, 54:7, 65:24,66:16, 66:17, 66:19,67:21, 68:17, 72:25,73:23, 76:14, 78:1,82:8, 83:24, 84:10,91:24, 94:12, 95:18,99:17, 106:11,106:23, 107:13
updated [1] - 32:14upper [1] - 57:20upshot [1] - 90:2urge [2] - 74:22,
102:22urgent [1] - 17:2URQUHART [1] - 2:14useful [2] - 63:18,
75:21
Vvalidity [1] - 38:5valuation [4] - 32:19,
35:10, 35:13, 35:15value [2] - 73:16, 97:1various [6] - 7:24,
14:8, 32:4, 78:11,102:16, 102:17
vein [1] - 97:21venture [1] - 33:2Version [1] - 51:8version [7] - 8:6, 50:2,
50:3, 51:8, 57:19,58:5, 69:4
versions [1] - 50:18vetted [2] - 70:25,
103:7via [10] - 2:8, 2:9, 2:9,
2:13, 2:13, 2:14, 3:2,3:8, 3:10, 4:5
17
view [25] - 5:22, 10:21,24:9, 36:10, 38:11,40:11, 41:9, 53:15,53:24, 55:21, 60:25,73:9, 77:4, 79:4,80:3, 83:24, 87:25,90:19, 93:7, 93:20,100:18, 101:1,102:25, 105:7,105:19
viewed [3] - 35:22,94:19, 95:2
views [5] - 5:13, 43:2,47:20, 95:23, 96:11
vigilant [1] - 40:16violated [2] - 11:17,
37:25violation [4] - 11:1,
43:4, 55:13, 92:10violative [1] - 93:20vis [2] - 77:25vis-a-vis [1] - 77:25visitors [1] - 75:21voluminous [1] -
20:24voluntarily [1] - 36:10voluntary [3] - 24:15,
95:23, 102:18
Wwait [1] - 76:12waiver [1] - 84:19walking [1] - 27:22Wall [1] - 106:23Walsh [8] - 19:13,
19:19, 19:21, 20:3,20:5, 20:7, 20:9,26:17
Walter [1] - 97:18wants [2] - 62:4, 80:17Washington [1] - 2:11waters [1] - 106:10web [16] - 11:21, 12:4,
16:10, 16:12, 28:3,28:15, 29:25, 30:3,36:12, 80:8, 80:13,86:4, 102:8, 102:10,102:24, 103:2
website [9] - 8:7, 28:7,29:6, 50:4, 51:8,65:12, 67:20, 75:22,80:1
websites [1] - 99:10weigh [1] - 98:13Weinstein [1] - 98:16well-known [2] -
71:19, 71:24well-recognized [1] -
8:24
West [2] - 8:25, 65:2wheeled [1] - 15:6White [1] - 17:25whole [3] - 8:17,
85:19, 90:3willful [1] - 97:24willfulness [3] - 87:19,
97:15, 97:16willing [3] - 46:10,
70:2, 80:25Winklevoss [2] -
46:17, 52:23Winklevosses [1] -
52:6wire [1] - 91:19wish [2] - 76:16, 91:13witness [1] - 69:24witnesses [1] - 53:17Wolfson [1] - 2:13woman [3] - 72:6,
74:8, 97:11woman's [1] - 97:23Woodlock [1] - 5:5WOODLOCK [1] -
1:11Word [4] - 9:12, 68:17,
68:19, 69:2words [1] - 62:4works [1] - 102:13world [1] - 5:20worry [1] - 91:10worthwhile [1] - 74:2Wright [2] - 14:18,
67:12WRIGHT [1] - 4:7write [1] - 20:6writing [2] - 48:14,
52:8Writs [2] - 87:9, 92:9written [6] - 5:20,
30:1, 48:9, 65:15,83:5, 83:16
Yyear [2] - 7:15, 42:25years [5] - 16:20, 21:9,
21:12, 21:15, 32:17yesterday [1] - 40:14York [4] - 2:11, 2:16,
4:8, 89:15young [3] - 94:17,
94:21yourself [1] - 106:10
Zzebra [1] - 53:8zenith [1] - 95:14ZUCKERBERG [1] -
18
1:6Zuckerberg [28] -
2:19, 7:14, 7:23, 9:5,11:24, 16:15, 16:19,19:13, 20:6, 20:17,21:18, 21:24, 27:3,27:13, 29:7, 44:22,51:10, 71:13, 73:12,73:18, 74:1, 74:16,74:20, 95:3, 95:22,96:17, 96:19
Zuckerberg's [11] -17:23, 20:4, 22:4,22:6, 26:16, 27:9,29:1, 49:23, 75:1,85:23, 95:6
ZYPREXA [6] - 6:2,64:21, 83:12, 83:13,86:8, 98:14
§§ [1] - 87:10
