Lawsuit Filed Against "Facebook"

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1 UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
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4 CONNECTU, INC., )
Plaintiff, )
5 v. ) Civil Action No.:
) 1:07-CV-10593-DPW
6 FACEBOOK, INC., MARK )
ZUCKERBERG, EDUARDO SAVERIN, ) Related Action No.
7 DUSTIN MOSKOVITZ, ANDREW ) 1:04-CV-11923-DPW
MCCOLLUM, CHRISTOPHER HUGHES, )
8 and THEFACEBOOK, LLC, )
9 Defendants
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11 BEFORE: THE HONORABLE DOUGLAS P. WOODLOCK
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13 MOTION HEARING
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16 John Joseph Moakley United States Courthouse

Courtroom No. 1
17 One Courthouse Way
Boston, MA 02210
18 Friday, November 30, 2007
12:35 p.m.
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Brenda K. Hancock, RMR, CRR
22 Official Court Reporter
John Joseph Moakley United States Courthouse
23 One Courthouse Way
Boston, MA 02210
24 (617)439-3214
Mechanical Steno - Transcript by Computer
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APPEARANCES:
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Plaintiff ConnectU, Inc.
4 Represented by:
5
Daniel P. Tighe, Esq.
6 GRIESINGER, TIGHE & MAFFEI, LLP
176 Federal Street
7 Boston, MA 02110
8
John F. Hornick, Esq. (Appearance via telephone)
9 Margaret A. Esquenet, Esq. (Appearance via telephone)
Meredith H. Schoenfeld, Esq (Appearance via telephone)
10 FINNEGAN, HENDERSON, FARABOW, GARRETT
& DUNNER, LLP
11 901 New York Avenue N. W.
Washington, DC 20001
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13 Peter E. Calamari, Esq. (Appearance via telephone)

Adam Wolfson, Esq. (Appearance via telephone)
14 Renee Bea, Esq. (Appearance via telephone)
QUINN EMANUEL URQUHART OLIVER &
15 HEDGES LLP
51 Madison Avenue
16 22nd Floor
New York, NY 10010
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18 Defendants
Facebook, Inc.
19 Thefacebook
Mark Zuckerberg
20 Andrew McCollum
Christopher Hughes
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Represented by:
22
I. Neel Chatterjee, Esq.
23 ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
24 Menlo Park, CA 94025
25 (Appearances Continued next page)

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Steven M. Bauer, Esq.
2 Mark Batten, Esq. (Appearance via telephone after recess)
PROSKAUER ROSE LLP
3 One International Place
22nd Floor
4 Boston, MA 02110
6 Defendant
Eduardo Saverin
7 Represented by:
8 Nathan E Shafroth, Esq. (Appearance via telephone)

HELLER EHRMAN LLP
9 333 Bush Street
San Francisco, CA 94104
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Robert B. Hawk, Esq. (Appearance via telephone)
11 HELLER EHRMAN LLP
275 Middlefield Road
12 Menlo Park, CA 94025
13
Daniel K. Hampton, Esq.
14 HOLLAND & KNIGHT LLP
10 St. James Avenue
15 Boston, MA 02116
16 I. Neel Chatterjee, Esq.

ORRICK, HERRINGTON & SUTCLIFFE LLP
17 1000 Marsh Road
Menlo Park, CA 94025
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19 Steven M. Bauer
PROSKAUER ROSE LLP
20 One International Place
22nd Floor
21 Boston, MA 02110
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(Appearances continued next page)
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02138
2 Represented by:
3 Elizabeth Ritvo, Esq.

BROWN RUDNICK
4 One Financial Center
Boston, MA 02111
5
Robert P. Balin, Esq. (Appearance via telephone)
6 Laura Handman, Esq.
Amber Husbands, Esq.
7 DAVIS, WRIGHT & TREMAINE
1633 Broadway
8 New York, NY 10019-6708
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1 P R O C E E D I N G S:
2 CLERK LOVETT: The Honorable Court is now in session.
3 You may be seated. Calling the case of Civil Action 07-10593
4 Civil Action 04-11923 ConnectU, Inc. v. Facebook, Inc., et al.
5 THE COURT: Well, this is Judge Woodlock. I have a
6 roll call that's been provided here, and in the course of the
7 proceedings, I think Mr. Lovett indicated to counsel who were
8 appearing by phone that they should identify themselves each
9 time they speak so that the court reporter will be able to get
10 the names properly. I guess, Mr. Chatterjee, I'd like to hear
11 from you first on the question of what I guess I'd have to call
12 requests for a prior restraint, and I want to hear what your
13 views are with respect to that at the outset.
14 MR. CHATTERJEE: I'm happy to do so, your Honor, and
15 thank you for giving us this hearing on an expedited basis.
16 The requests that we are placing to the Court is to restrain
17 specific documents that have been posted online that are
18 subject to the Court's protective order. This is not a request
19 to restrain the commentary and the articles that have been
20 written about them. In a perfect world, we want to try and
21 stop that commentary, but we are really trying to protect our
22 confidential information that has gotten out. In our view, the
23 law is fairly clear, the Bartnicki case, I can never pronounce
24 it right, in drawing a distinction as to the scope of First
25 Amendment protection between what is commentary and what are

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1 things like this that are documents and our property. The
2 ZYPREXA case, that was actually cited to in papers that were
3 just submitted to you by the magazine, actually talks about
4 that very distinction.
5 THE COURT: I'll have to say that I have not seen the
6 magazine submission as yet; it just hasn't been brought to my
7 attention.
8 MR. CHATTERJEE: Okay, your Honor, I'm happy to
9 provide you with the citations. I'd like to start with one key
10 fact that I think is important, and I'll just read to you an
11 excerpt from their submission that I think their argument
12 pretty much hangs on, and it's the following statement on page
13 4 of their brief. All of the --
14 THE COURT: Just a moment. I'm glad to listen to a
15 dramatic reading, but I think I'd like to follow along. Is
16 there a copy of the document here?
17 MR. CHATTERJEE: Yes, your Honor, I believe.
18 MS. RITVO: Excuse me. This was hand-delivered to the
19 Court on behalf of the magazine.
20 THE COURT: Okay. Go ahead. I now have it.
21 MR. CHATTERJEE: Your Honor, if you look at page 4,
22 the first complete paragraph, it states, "All of the documents
23 were lawfully obtained by Luke O'Brien, a freelance journalist
24 and the author of the article in question from the clerk's
25 office of the United States Court of Appeals for the First

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1 Circuit."
2 Your Honor, this is one of approximately 11 exhibits
3 that were submitted to the First Circuit Court of Appeals,
4 three of which are under seal. Each one --
5 THE COURT: Let me just pause for a moment. Are all
6 of the documents that are the subject of internet posting from
7 the Court of Appeals appeal?
8 MR. CHATTERJEE: No, your Honor, and that was exactly
9 the point I was going to make. Each one of the documents in
10 the appendix to the First Circuit Court of Appeals has a number
11 at the very bottom pursuant to the First Circuit Rules. Not a
12 single one of the documents that's posted online has that
13 number on it. In addition, two of the documents which are
14 posted online, the online diary of Mark Zuckerberg and the cash
15 flow statement of Facebook from about a year and a few months
16 ago are, as far as we know, and we're still, we're rapidly
17 going through this to confirm it, because we only received
18 notice of this position recently, is not in the appellate
19 record at all. So, that premise that their argument hangs on,
20 what they have said they would submit in a declaration under
21 oath from Mr. O'Brien, it's false. Your Honor, we have
22 additional evidence to support that.
23 The Harvard application for Mark Zuckerberg that is in
24 the appellate record, as well as is attached to various court
25 files, that document that was submitted did not have certain
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1 handwritten notes on the side of the document, and those
2 handwritten notes were on the online posting that came up.
3 THE COURT: Do you know what iteration of that
4 document does have handwritten notes on it?
5 MR. CHATTERJEE: We had searched our production, your
6 Honor, and we can't find it. A new version of that document
7 was posted on the 02138 website with those handwritten notes
8 removed. We have looked through other documents that have been
9 produced with handwriting on them. We found some editorial
10 changes to Dyvia Narendra's deposition. At the end of the
11 deposition, as you know, your Honor, you can always make
12 certain changes if you have problems with them.
13 THE COURT: Right.
14 MR. CHATTERJEE: We have submitted that handwriting,
15 as well as the handwriting on the side of the notes to the
16 Harvard application, to a handwriting expert, and, obviously,
17 we did not have a whole lot of time for this and the sample
18 size is relatively small, but under the accepted standards for
19 handwriting analysis, between a ranking of 1 being a definite
20 match and 9 being no match, the expert is telling us it's
21 roughly a 3, which is a probable match.
22 THE COURT: Who is the expert?
23 MR. CHATTERJEE: The expert's name is Bob Culman (ph),
24 Robert Culman, and he's a well-recognized expert.
25 THE COURT: Is he someone on the West Coast? I'm not

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1 familiar with him.
2 MR. CHATTERJEE: He's in the Midwest, your Honor, and
3 he's someone that our firm has worked with in the past. In
4 addition, the online diary that has been posted for Mark
5 Zuckerberg, the document that's posted is in a file format
6 called a pdf file. When you download a pdf file, you can pull
7 up certain information that isn't disclosed on the page called
8 metadata. The metadata is historical information about that
9 document. What that document reveals, the metadata document,
10 is it reveals that someone named Lindsey B, we believe that's
11 an employee of 02138, received the document, received a dot doc
12 file, which is a Microsoft Word file format. Now, that's
13 significance, because if they got it from a court file, it
14 wouldn't be in an electronic format, it would be in a hard copy
15 format. It was then converted to pdf, which is the file format
16 that is available online, and then posted. Now, that
17 electronic data came from somewhere, and it didn't come from
18 the Court record.
19 THE COURT: Do we know that for sure? Frequently,
20 materials that are submitted to the Court, even under seal, are
21 put in the pdf format at some point.
22 MR. CHATTERJEE: Yes, your Honor, that is true,
23 however, these documents from the online journal are -- the
24 only place we could find in the court record where they were
25 submitted was with respect to the first amended complaint, and

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1 we made a specific request to your Honor, which is currently
2 under advisement, to keep that document under seal. It has not
3 yet been put online and is not currently publicly available.
4 One other important fact about that particular document, the
5 dot doc metadata indicates that the file was created on the
6 first -- no, I'm sorry, on the 10th of January, 2006. We
7 produced the document on the 7th of January, 2006, three days
8 earlier. All of this information suggests to us that what
9 they've said in these papers, at least, is not an accurate
10 statement, and the information came from someplace else.
11 THE COURT: Well, let me see if I can break that down
12 a bit. Let me put to one side the submission made by 02138 and
13 focus on the potential sources as more fully developed by your
14 commentary. Are you suggesting that it comes from ConnectU?
15 MR. CHATTERJEE: Your Honor, from what we've learned
16 in the past 24 hours through this analysis, it certainly seems
17 like at least some of it did.
18 THE COURT: All right. Now, let me deal with that
19 aspect of it, just for a moment. Is not the way to deal with
20 that to pursue a question of contempt against a party with a
21 view toward developing a schedule to pursue it? I'll put to
22 one side the remedy, for a moment, because if it comes from
23 them, irrespective of whether they pass it on to someone who
24 disseminates it, they are directly within the scope of the
25 Court's power to exercise control and sanction, if there's a

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1 violation of the Court's Orders.
2 MR. CHATTERJEE: Yes, your Honor, that is true.
3 THE COURT: All right. Because there are two aspects
4 of this that I'm interested in that are pressed, well, not
5 altogether pressed by it, but that are part of this. The first
6 aspect of it is who did it, and the second part is whether or
7 not there is any remedy for it. Now, turning to the who did it
8 part of it, it seems to me that further factual development has
9 to be undertaken. I recognize that you brought it along or
10 wanted to bring it along as promptly as possible, nevertheless,
11 I'm confronted with somewhat conflicting factual recitations, I
12 suppose. I have a particular interest in making sure that I
13 try to get this right, and because it's a very serious
14 matter --
15 MR. CHATTERJEE: It is, your Honor.
16 THE COURT: -- if one of the parties in this case has
17 violated the protective order. I also want to understand what
18 that of the materials that have been submitted to me in
19 connection with the motion, pending motion to dismiss and the
20 motion for summary judgment, are included in the universe of
21 materials that are posted on the web. Any?
22 MR. CHATTERJEE: Yes, your Honor, and I don't remember
23 the exact exhibit numbers, but the online diary of Mark
24 Zuckerberg is one of the attachments.
25 THE COURT: If I could interrupt, that's one in which

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1 the parties continue to believe or at least have submitted to
2 me that that should remain under seal.
3 MR. CHATTERJEE: Yes, your Honor. I don't remember
4 which of the other documents that are up on the web are
5 attached to the first amended complaint. I don't believe the
6 other ones are, but I can't say for certain.
7 THE COURT: Okay. Now, are all of the -- you said
8 there were two documents, two or three documents that aren't in
9 the appellate record; is that right?
10 MR. CHATTERJEE: Yes, your Honor. This was the first
11 time we heard about it, about an hour and a half ago, but from
12 our review and our recollection, Thefacebook cash flow
13 statement and the online diary were not part of the appellate
14 record.
15 MR. HORNICK: Your Honor, this is John Hornick.
16 THE COURT: Yes.
17 MR. HORNICK: I'm not sure that that's accurate. I
18 don't know the answer for sure, but I do know that, and we only
19 saw this brief from 02138 about an hour ago ourselves, and
20 we're not aware that the document had come from the First
21 Circuit, but since that time, we've considered this issue that
22 Neel is raising now about where -- whether all of these
23 documents were in the appellate record, and Thefacebook had a
24 motion pending in the First Circuit to dismiss the appeal as
25 moot, and that motion involved the first amended complaint, and
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1 we do not know at the moment whether the first amended
2 complaint was an exhibit or whether the exhibits to it were
3 exhibits to that motion, but it's entirely possible that the
4 First Circuit may have looked at the first amended complaint in
5 the record.
6 THE COURT: So, is the suggestion, Mr. Hornick, that
7 they have been somehow incorporated by reference in the First
8 Circuit --
9 MR. HORNICK: Well, possibly, your Honor. All I'm
10 saying is that it's not clear that those documents were not in
11 any way part of the appellate record or in the appellate
12 court's records.
13 THE COURT: All right.
14 MR. CHATTERJEE: And, your Honor, just to speak to
15 that, Mr. Hornick is correct, we did file a motion to dismiss
16 the appeal as moot. My recollection is that we did not attach
17 the first amended complaint; rather, we referred to it in a
18 request for judicial notice, but I just, I can't remember for
19 certain.
20 THE COURT: There is one other dimension I just want
21 to throw out now. Mr. Lovett, my courtroom deputy, in paging
22 through quickly, noticed that for at least one of the documents
23 there's a docket stamp, which indicates that at some point that
24 document was in the file in this court, the copy is something
25 that comes out of the court itself. Now, it could have gone to
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1 the First Circuit, it could have come, frankly, from the
2 clerk's office here, since we're now taking names rather than
3 making a determination of who did it.
4 MR. CHATTERJEE: Your Honor, it is true that we have
5 been able to identify documents. These documents have been
6 submitted to a court or were sought to be submitted through an
7 evidentiary hearing where it was put on an exhibit list and not
8 actually entered at various points in time. Before we came to
9 the Court, we actually asked, we asked whether the information
10 that we had correlated remained under seal today and was not
11 publicly accessible, and we received confirmation that, in
12 fact, it was still confidential.
13 THE COURT: Well, the submission that you've just
14 brought my to my attention about the source for 02138, at least
15 their recitation of the source and the offer to provide a
16 declaration, it says it comes from the appeals court.
17 MR. BALIN: Your Honor, this is Robert Balin, from
18 Davis Wright Tremaine, the attorney for 01238.
20 MR. BALIN: And I don't want to interrupt, but I think
21 there may be, at least possibly, a misunderstanding, at least,
22 when we've come in, we came in last night about 6:00 when our
23 predecessor counsel realized he had a conflict.
25 MR. BALIN: We have tried to ascertain the facts as

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1 best as counsel can, and our understanding is that the reporter
2 here, an issue went to the District Court, there were documents
3 missing from the file there, he was sent down the hallway to
4 the First Circuit Clerk's Office. He filled out a form, a
5 request card to ask for the documents and the clerk brought
6 him, she wheeled out, I think he said it was three boxes or
7 thereabouts, many, many documents. This was not an appeal
8 appendix. It appears that he got the District Court documents,
9 the records from the District Courts themselves, that somehow
10 the appeals clerk had provided to him.
11 THE COURT: Mr. Balin, let me just pause for a moment.
12 We're all beginning to move in areas in which I think we're not
13 fully informed, and I'm not fully informed, but maybe I can add
14 a little bit to this. There is a difference between a record
15 appendix and the record itself, and the practice has been, in
16 the First Circuit, at least, in certain cases, to require the
17 replication of documents in the files of the District Court for
18 submission to the First Circuit. So, it's possible that the
19 First Circuit would have copies of originals in the -- from the
20 District Court that would be outside of the record appendix
21 itself. That's not inconsistent with what you're saying, but,
22 perhaps, provides some greater degree of nuance to the
23 discussion.
24 MR. BALIN: Sure, and, your Honor, I don't want to
25 interrupt counsel's argument. I will --

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1 THE COURT: But the short of it is, Mr. O'Brien -- is
2 it Mr. O'Brien?
3 MR. BALIN: Yes.
4 THE COURT: His recollection is that he got these
5 documents from documents that were provided to him pursuant to
6 a request by the Clerk's Office in the Court of Appeals.
7 MR. BALIN: Correct, that is the recollection he has
8 communicated.
9 THE COURT: And is that the universe of the documents
10 that are up on the web now?
11 MR. BALIN: I believe so. There are, I believe, eight
12 documents that were posted on the web, only four of which they
13 are complaining about, and I believe one of them is this online
14 diary, at least we've been informed, and I'll stand corrected
15 if I'm wrong, that it was posted by Mr. Zuckerberg at some
16 earlier time online, but that's correct, there are four
17 documents that are at issue.
18 THE COURT: When you say it was posted by Mr.
19 Zuckerberg online, you mean while he was an undergraduate?
20 MR. BALIN: I believe so, I believe years ago, yes.
21 THE COURT: Go ahead, Mr. Chatterjee.
22 MR. CHATTERJEE: Your Honor, and I think your Honor is
23 right to point out that there are, fundamentally, two separate
24 sets of issues. One is the investigation about how these
25 documents became public. That's an issue that we would like

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1 your Honor to give us some guidance on how we can investigate
2 it, but the urgent issue, and the reason that really drove us
3 to come here, is to stop further dissemination of these
4 documents and to stop the distribution.
5 THE COURT: Let me understand specifically the
6 documents that you're asking to, the specific documents that
7 you want to have taken down.
8 MR. CHATTERJEE: Yes, your Honor. The specific
9 documents that we would like to have taken down are the
10 documents that we have attached to my declaration on the
11 request.
12 THE COURT: I have it.
13 MR. CHATTERJEE: Exhibit 6 -- I'm sorry -- Exhibit 5
14 through 8.
15 THE COURT: 5, 6, 7 and 8.
16 MR. CHATTERJEE: Correct.
17 THE COURT: Okay. Well, let me understand, Mr. Balin,
18 as a matter of not of order but as a matter of prudence or
19 proportion, is 02138 prepared to take those down?
20 MR. BALIN: I would have to respectfully say no, your
21 Honor. When we were first informed about this from our
22 predecessor counsel, by Facebook's counsel, we were informed
23 that Mr. Zuckerberg's parents' address and phone number were on
24 one or more of the documents and would we redact that, even
25 though that's available in the White Pages and online, but of

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1 course we will. They also indicated that there was a Social
2 Security number. As soon as we heard that, of course, we
3 redacted that as well.
4 We do believe that we do have a Constitutional right
5 to publish the information that's in our possession. Again, I
6 don't want to interrupt counsel's argument, I do want to make
7 some points about it, and I think your Honor is exactly on the
8 right point in terms of what the case law says. There is a --
9 THE COURT: Well, I'm going to try to inform myself
10 some more about the case law in this area.
11 MR. BALIN: Sure.
12 THE COURT: I really want to focus on the specific
13 areas of actual dispute.
14 MR. BALIN: I always try to agree with judges, your
15 Honor, but this is one case that, at least my professional
16 obligation to my client, requires that I have to respectfully
17 decline to do that.
18 THE COURT: All right. Now, Mr. Chatterjee, you've
19 identified the four documents. Are there particular sections
20 of those four documents that are of particular concern, and if
21 you can articulate them, because this an open proceeding, if
22 you can articulate the concern in a general sort of way, I just
23 want to be sure that the parties are not simply taking
24 categorical approaches to the issues here.
25 MR. CHATTERJEE: Yes, I'm happy to do so, your

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1 Honor --
2 THE COURT: Okay.
3 MR. CHATTERJEE: -- just so we're clear. So, exhibits
4 5, 7, and 8, all fairly short documents --
5 THE COURT: Right.
6 MR. CHATTERJEE: -- and we believe that those
7 documents in their entirety should be sealed. Exhibit 6 is a
8 more complicated --
9 THE COURT: Well, let me understand why -- let's start
10 with 5. This is a document submitted to the Harvard
11 Administrative Board, is that it?
12 MR. CHATTERJEE: No. Exhibit 5 is an e-mail between
13 Mark Elliot Zuckerberg and John Patrick Walsh, and, your Honor,
14 if I do get into the substance of this, I may ask the Court to
15 seal it.
16 THE COURT: Well, try not to --
17 MR. CHATTERJEE: Thank you.
18 THE COURT: -- because I'm going to resist the
19 temptation until I'm forced to, but who is Mr. Walsh?
20 MR. CHATTERJEE: Your Honor, I've been trying to learn
21 who Mr. Walsh is. I have not yet.
22 THE COURT: He's not someone who is, himself,
23 affiliated with the Administrative Board at Harvard?
24 MR. CHATTERJEE: I am not sure, as I stand here today.
25 MR. HORNICK: Your Honor, this is John Hornick. I can

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1 answer that question.
2 THE COURT: Okay.
3 MR. HORNICK: Mr. Walsh, as I understand it, was Mr.
4 Zuckerberg's advisor of some type at Harvard, and when the
5 facemash problem arose at Harvard, Mr. Walsh asked Mr.
6 Zuckerberg to write up the facts as he wanted to present them,
7 and then Mr. Walsh submitted this document to the Harvard Ad.
8 Board.
9 THE COURT: All right. So, is Mr. Walsh a member --
10 MR. HORNICK: He's the house tutor, your Honor.
11 THE COURT: Okay, all right. So, this would have been
12 in the Harvard Administrative Board file of some sort.
13 MR. CHATTERJEE: Yes, your Honor. I believe there's a
14 stamp on it that says that.
16 MR. CHATTERJEE: But this is a matter of private
17 concern to Mr. Zuckerberg and things that he was doing in his
18 educational experience there. We believe that that's a
19 document that's a private concern, and it's something that he's
20 entitled to protection on.
21 THE COURT: Well, let me go through all of these so
22 we've got an understanding.
23 MR. CHATTERJEE: I'm going to skip over Exhibit 6 for
24 the moment, because it's a fairly voluminous document.

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1 MR. CHATTERJEE: Exhibit 7 is a document that is
2 Facebook's statement of cash flows. This is among the most
3 confidential information that companies have, which is, unless,
4 of course, they're publicly traded companies, which involves
5 kind of their core financial numbers, how they're doing, what
6 they're doing, and it is a very confidential document to the
7 company.
8 THE COURT: Right, but we're dealing with one here
9 that is 2005, two years old.
10 MR. CHATTERJEE: Yes, your Honor.
11 THE COURT: Okay.
12 MR. CHATTERJEE: It is a couple of years old, but it
13 still remains a relevant and a confidential document to the
14 company as far as how it's been performing over the past
15 several years.
17 MR. CHATTERJEE: The next document, which is Exhibit
18 8, is an entry to an online diary that Mark Zuckerberg kept.
19 Again, this is a matter of private concern reflecting his own
20 private thoughts.
21 THE COURT: Let me understand what the distribution,
22 if any, of this has been, this Exhibit 8.
23 MR. CHATTERJEE: The distribution by whom?
24 THE COURT: By Mr. Zuckerberg or anyone else. Was it
25 submitted in connection with the Harvard Administrative Board

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1 proceedings?
2 MR. CHATTERJEE: No.
3 THE COURT: So, this is a document that was taken off
4 of Mr. Zuckerberg's computers in some way?
5 MR. CHATTERJEE: This was a document that we took off
6 of Mr. Zuckerberg's computers; it's actually an excerpt of a
7 larger document.
8 THE COURT: And this was produced during discovery?
9 MR. CHATTERJEE: It was produced during discovery.
10 THE COURT: And when I see the "January 10, 2006"
11 reference, that's the reference to materials generated through
12 a pdf document after your disclosure; is that it?
13 MR. CHATTERJEE: You're right, yes, your Honor. What
14 we did is, we produced this document on a CD on January 7th.
15 The CD was marked "Confidential," and we produced that on
16 January 7th, 2006, and then this was in a dot doc format and,
17 presumably, it was loaded into a litigation database or
18 something, which put the confidential marking on the bottom.
19 THE COURT: And this is the only one of the four
20 documents that is, see if I have this right, that has not been
21 submitted in connection with any of the filings in this case;
22 is that right?
23 MR. CHATTERJEE: No, your Honor. This document was
24 attached to the first amended complaint. We sought to have it
25 put under seal, and that issue is currently under advisement.

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1 THE COURT: Okay, that's the one. All right.
2 MR. CHATTERJEE: Your Honor, I'm not sure, we're still
3 confirming it, but I don't believe that Exhibit 7, the cash
4 flow statement, I don't recall this being attached to the first
5 amended complaint or being part of the appellate record.
6 THE COURT: All right. Mr. Hornick, do you have any
7 recollection about that? Nobody's being held to these
8 recollections, but I just want to get an idea.
9 MR. HORNICK: Your Honor, so far we have not been able
10 to find out in the record where the cash flow statement is.
11 I'm not saying it's not there; we just don't specifically
12 recall, and it's an awfully big record.
13 THE COURT: Right. Okay. Then, turning, now, to the
14 Exhibit 6, which is an excerpt of a deposition.
15 MR. CHATTERJEE: That's correct, your Honor.
16 THE COURT: I guess I want to focus, I wanted to focus
17 a bit more, because in the papers, which I understand were not
18 as complete as you would want when submitted, there was a
19 suggestion that this held up a third party, you could call it
20 an innocent third party, but at least a third party that's not
21 been drawn into this case into some kind of shame and
22 disrepute. Is that where this is -- is that the document?
23 MR. CHATTERJEE: That's our primary objection to this,
24 your Honor, yes.
25 THE COURT: This particular document?

24
1 MR. CHATTERJEE: Yes, this particular document.
2 THE COURT: Has the person whose name has been brought
3 up been notified about this?
4 MR. CHATTERJEE: Yes. If I have bags under my eyes
5 right now, it's because I took a red eye out here, and I've
6 been on the phone dealing with him.
7 THE COURT: Okay. Well, let me go back more
8 specifically, having been informed about this. Mr. Balin, I
9 understand your client's view about their rights to post
10 materials like that that come into their possession under
11 whatever circumstances. The question for me is, and I put it
12 as a prudential one --
13 MR. BALIN: Yes, your Honor.
14 THE COURT: -- is whether there is a mechanism
15 voluntary to permit whatever harms arise to particularly third
16 parties here to be mitigated or ameliorated.
17 MS. RITVO: Your Honor.
18 THE COURT: Yes.
19 MS. RITVO: Before Mr. Balin responds, I'm local
20 counsel for 02138.
22 MS.RITVA: He is with Laura Handman, who is a member
23 of the Mass Bar, and just by way of housekeeping, Mr. Balin is
24 not a member, but just that he has permission to speak.
25 THE COURT: I'll hear him as well.

25
1 MS. RITVO: Thank you.
2 THE COURT: But, Mr. Balin, and maybe we're going to
3 have to sort out at some point whether there's a formal
4 appearance in the case and that sort of thing --
5 MS.RITVA: Yes.
6 THE COURT: -- and I'll get to that at some point, but
7 I'll hear you on, and have been, and I will continue to hear
8 you on these matters.
9 MR. BALIN: Thank you, your Honor, and in short
10 answer, I will, of course, raise with my client the issue of
11 whether in their own editorial discretion and judgment they
12 would consider redacting the name, and I don't know that, I
13 believe that it is one person's name. Are you concerned about
14 two people's names?
15 THE COURT: Well, I'm not sure whose names I'm
16 concerned about. What I know, you know, for instance, I'll
17 look at the first page of the --
18 MR. BALIN: I believe, your Honor, at least if I
19 understand what the concern is, it's testimony given on pages
20 216 to 219 of the deposition transcript. Is that right, Mr.
21 Chatterjee?
22 MR. CHATTERJEE: Your Honor, if I could have a moment
23 to just confirm that?
24 THE COURT: Yes.
25 (Pause)
26
1 MR. CHATTERJEE: Your Honor, I would want to check the
2 other pages to make sure, but that appears to be correct.
3 THE COURT: All right. I guess, so, we'll focus on
4 that one, and I would ask you, Mr. Balin, to consult with your
5 client with respect to that --
6 MR. BALIN: I absolutely will, your Honor.
7 THE COURT: -- further, so that we can understand
8 that. Apart from those, that third party, Mr. Chatterjee, is
9 there any other third party whose name got drawn into this
10 litigation but is not, whose activities are not directly
11 relevant?
12 MR. CHATTERJEE: Your Honor, there are probably a few,
13 but they're not as, in all candor, I don't think that they're
14 as sensitive to focus on.
15 THE COURT: Okay. Now, let's, then, turn to Mr.
16 Zuckerberg's submission to Harvard or, I should say, to his
17 advisor, Mr. Walsh. I've done a quick read of this. It seems
18 to be, essentially, an exculpatory or meant to be an
19 exculpatory statement on his part, obviously submitted under
20 circumstances that were meant to be confidential, but appear
21 not now to be confidential, but what is the salient problem
22 with this, to the degree that I'm going to be drawn into making
23 balancing judgments? I'm not sure I am, but at least I want to
24 understand what the balancing issue I should have in mind is
25 for this.
27
1 MR. CHATTERJEE: Your Honor, if I could just confer?
2 THE COURT: Sure.
3 MR. CHATTERJEE: Mr. Zuckerberg also has his
4 individual counsel here today. I'm representing everybody. If
5 I could just confer with him for just a moment?
6 THE COURT: Okay.
7 (Pause)
8 MR. CHATTERJEE: Your Honor, I'm sorry about the
9 delay; I just wanted to talk to Mr. Zuckerberg's private
10 counsel as well.
12 MR. CHATTERJEE: Our feeling about this is that is a
13 private dialogue between Mr. Zuckerberg and others. I
14 understand that many of the issues in this case have come to a
15 public light and are being proceeded in a public forum. The
16 fundamental concern with respect to this document, however, is
17 really the slippery-slope issue, which is at what point do his
18 private conversations start becoming public. At the end of the
19 day, your Honor, from our perspective, some of the other
20 documents, some of the things we've already talked about, are
21 of far greater importance, and as long as we don't believe
22 we're walking down that slippery slope, I don't think we're
23 going to have a major objection on this document.
24 THE COURT: All right. Now, let me, then, skip over
25 the financial document, Exhibit 7, and go to the online diary,

28
1 Exhibit 8. My quick reading, as you've been consulting, I've
2 been reading, of the submission from 02138 suggests that this
3 document is already on the web. There is a citation to a cite
4 Scribd -- it's footnote number 1, but jumping over to page 4,
5 S-c-r-i-b-d dot com.
6 MR. CHATTERJEE: Yes, your Honor. We looked at that
7 website immediately when we saw this. It appears to be, to
8 have just downloaded this and reposted it, and, again, the
9 metadata on it indicates that it was posted today. So, it's
10 not something that pre-existed, it's the reason why we're here,
11 which is the potential proliferation.
12 THE COURT: All right. So, Mr. Balin, do you know, or
13 I don't know who the scrivner was of the brief that was
14 submitted, but do you know the story on this, whether or not
15 it's on the web because it's been taken from the 02138 cite?
16 MR. BALIN: I don't know the answer, your Honor. I do
17 assume that it came from our site and, like all of these
18 documents, are now, given the nature of the internet, you know,
19 the cat is out of the bag, and they are being posted on other
20 sites as well --
22 MR. BALIN: -- so that I don't have any knowledge that
23 it would have come from any other site than from ours
24 originally, your Honor.
25 THE COURT: Okay. So, when it's argued that Mr.

29
1 Zuckerberg's online diary's online it's --
2 MR. BALIN: Oh, I was making a different point, your
3 Honor, and I apologize if I wasn't clear enough. I understand,
4 and I could be wrong, but at least I was led to believe that
5 the diary that they call the private diary at one time in the
6 past, not this website, at one time in the past, that Mr.
7 Zuckerberg had posted it in a manner in which others could see
8 it.
9 THE COURT: All right. Do you have any knowledge
10 about that?
11 MR. CHATTERJEE: Your Honor, we've been trying to
12 investigate that, and we cannot say for certain. I do want to
13 make one observation related to the --
14 THE COURT: You can't say for certain, in the sense
15 that you haven't exhausted all the sources that you'd want to
16 consult before making a categorical statement about it; is that
17 it?
18 MR. CHATTERJEE: Correct, correct, your Honor, and
19 also one of the other challenges that I suspect we're going to
20 have is this was quite a while ago, some things were put
21 online, some things weren't, it's not clear exactly how they'll
22 play out, but we are trying to investigate that as quickly as
23 possible.
24 MR. HORNICK: Your Honor, this is John Hornick. It's
25 my understanding that the journal was posted on the web back

30
1 around the time that it was written, and then it was quoted in
2 the Harvard Crimson article or quoted in a Harvard Crimson
3 article, and I can give you the web address to that, but it's
4 kind of long.
5 THE COURT: Well, I guess I'm really trying to figure
6 out what the dimensions of this are. Let me just step back a
7 bit. Mr. Balin, if this is the first disclosure of a private
8 diary like this, and your assumption is incorrect, assuming all
9 of that, that your assumption is incorrect, that it was at some
10 time at some point posted, would your client have an objection
11 to -- I won't ask the full question or the ultimate question,
12 but is this not something that you'd want to consult with your
13 client about?
14 MR. BALIN: I think on this, your Honor, our legal
15 conclusion would be the same, that --
16 THE COURT: Well, I'm not so much concerned about the
17 legal conclusion. The first order of business is to be
18 differential to editorial decisions.
19 MR. BALIN: Right. As the other suggestions, your
20 Honor, is made, of course I will --
21 THE COURT: Well, let me just take a look, let me
22 look, for instance, or point you to what is essentially the
23 first line --
24 MR. BALIN: Sure.
25 THE COURT: -- at 8:13 p.m. I assume that the person

31
1 referenced there is a human being, not an avatar, and that, you
2 know, the reference is a demeaning one, and I'm not sure that
3 that individual ought to be held up to shame and disrepute
4 simply because, for whatever reasons, documents that were
5 required to be disclosed in litigation somehow made their way
6 into -- are beyond the confines of those who are directly
7 subject to the Court control. That's the kind of thing that
8 I'm concerned about in this. It's somewhat similar to that
9 portion of the deposition transcript.
10 MR. BALIN: Your Honor, I hear you, and I hear you
11 talking to the editorial discretion as opposed to --
12 THE COURT: Right. At this stage, that's what I'm
13 doing.
14 MR. BALIN: Yes, and I surely, of course, will raise
15 your concern with my client.
16 THE COURT: I am concerned about specific individuals
17 being identified here whose only role is to have been
18 splattered by the blood at the traffic intersection, so I'd ask
19 you to just consult with your client whether or not they would
20 consider a redaction of some or all of Exhibit 8. Now, let's
21 go back to Exhibit 7, the cash flow issue. The extraordinary
22 growth of Facebook here has really made this more or less an
23 old thing, isn't it? It's not the new, new thing.
24 MR. CHATTERJEE: Your Honor, I don't think this is an
25 old thing per se. This document has considerably more detail
32
1 than what you might read in the newspapers. It talks about
2 investing activities, it talks about financing activities, it
3 talks about how much money people pay for stock issuance, I
4 mean, you know, the various issues associated with the stock
5 issuance.
6 THE COURT: Well, but, you know --
7 MR. CHATTERJEE: This is not publicly available
8 information.
9 THE COURT: I understand it's not publicly available
10 now, or I guess it's not publicly available now. On the other
11 hand, this is the kind of thing that a public company would
12 have to make available. It's the kind of thing that would be
13 made available to potential investors, although I suspect it
14 would be updated substantially. I guess I want to understand
15 what the competitive, I'll put it in that form, what the
16 competitive problems are with the disclosure of a statement of
17 cash flows from two years ago for this company.
18 MR. CHATTERJEE: Your Honor, part of what happens with
19 public companies is evaluation of their growth and valuation of
20 the company. It's a very private thing when you're a start-up
21 and when you're seeking funding. Now, this information --
22 THE COURT: Well, but, let's just talk practically
23 about that --
24 MR. CHATTERJEE: Sure.
25 THE COURT: -- and I'm sure you're much more familiar

33
1 with current practices than I on it, but I don't know any
2 venture capitalists who wouldn't, if thinking about investing,
3 ask for this information and a great deal and more and get it.
4 MR. CHATTERJEE: They would get it pursuant to a
5 nondisclosure agreement, your Honor.
6 THE COURT: Yes, but they'd get it, but nondisclosure
7 to what end, and that's really what I'm getting at, what is the
8 competitive problem with this?
9 MR. CHATTERJEE: Because it tells competitors, other
10 potential suitors, other people that may be competing for the
11 same funds, there is a lot of competition in the marketplace
12 with respect to Facebook. There are companies --
13 THE COURT: I'm pressing you, because I'll concede the
14 generality, but that begins the analysis. There isn't, you
15 know, my quick reading of this doesn't suggest to me anything
16 that is of anything other than historical interest.
17 MR. CHATTERJEE: Your Honor, if you look at the very
18 first line, there is a statement that says "Net Income," and it
19 has a number next to it.
21 MR. CHATTERJEE: That number is causing Facebook
22 concern that it's out in the marketplace, whether it's making
23 money, how much money it's making and what it's doing.
24 THE COURT: Was making money, was making money between
25 January and December of 2005. That's what I guess is what I'm

34
1 getting at.
2 MR. CHATTERJEE: But its financial performance on how
3 it's adjusting its business models is considered competitively
4 sensitive information, and if they change their behavior and it
5 affects their previous financial positions and their financial
6 position today, it's something that Facebook doesn't think
7 should be out in the marketplace, because it would enable a
8 competitor to know what changes they needed to make.
9 MR. HORNICK: Your Honor, this is John Hornick --
10 THE COURT: Just a moment, Mr. Hornick.
11 MR. HORNICK: I just found this document in the
12 record.
13 THE COURT: Okay, go ahead.
14 MR. HORNICK: It's Exhibit 17 to ConnectU's Motion For
15 Contempt that was filed in the old case. We're looking for the
16 docket number, your Honor.
18 MR. HORNICK: We're not sure yet.
19 THE COURT: Let me step back from this. Are all these
20 from the '04 case, all of these documents? Is that where you
21 think they came from?
22 MR. CHATTERJEE: Your Honor --
23 MR. HORNICK: Except for the online journal, I believe
24 the first time that was in the record was as an exhibit to the
25 first amended complaint, but I believe everything else was in

35
1 the old case.
2 THE COURT: Okay.
3 MR. HORNICK: And the docket number is 177.
4 THE COURT: 177?
5 MR. HORNICK: Yes, in the old case, 177.
6 THE COURT: All right. What was its relevance, if you
7 can recall in that case, because I sure can't in that case?
8 MR. HORNICK: Well, the motion for contempt dealt
9 with, Judge Collings issued an order that allowed ConnectU to
10 do discovery on the subject of Facebook's valuation, and there
11 was a meet and confer, and Facebook didn't want to provide the
12 discovery, so ConnectU filed a motion for contempt, and the
13 subject of the motion for contempt was the valuation of
14 Facebook. So, I can't tell you exactly why this was an
15 exhibit, but this exhibit relates to the valuation of Facebook
16 in 2005.
17 THE COURT: I see, okay.
18 MR. CHATTERJEE: Your Honor, if I may add to Mr.
19 Hornick's remarks, part of that motion was about
20 confidentiality and disclosure of investor-related information,
21 financing information and the like. Judge Collings very
22 substantially curtailed what could be publicly viewed and what
23 could not.
24 THE COURT: Right, and when was he acting on this?
25 What was the time period for it?

36
1 MR. HORNICK: It was in the spring of 2006, your
2 Honor.
3 THE COURT: Okay. Shortly after the end date for this
4 statement?
5 MR. HORNICK: Yes.
6 THE COURT: And with respect to this, I guess I
7 understand the source now, or at least the source of the court.
8 Well, let me do two things with respect to the remedy aspect of
9 this. I'll ask Mr. Balin to consult, again, with his clients
10 with a view toward whether or not voluntarily they'll exercise
11 what I'll call editorial discretion in the materials that have
12 been posted on the web. I've focused particularly on the
13 concern that I have more generally for third parties who I will
14 call innocent but, perhaps, better to be called strangers to
15 this litigation unfairly having their names drawn in,
16 particularly in the context in which their activities might be
17 held up to shame and disrepute. I would ask you to think about
18 the question of the competitive advantage or disadvantage and
19 consult with your clients with respect to that as well, and
20 what I would like to do is reconvene at some prompt time, say,
21 2 hours from now. Is that enough time for you to consult, Mr.
22 Balin?
23 MR. BALIN: Yes, your Honor.
24 THE COURT: Okay.
25 MR. BALIN: I do think it would be unlikely that with

37
1 respect to the 2005 cash flow statement that they would take
2 that down.
3 THE COURT: Right. Well, I'm not --
4 MR. BALIN: But I will, of course, consult with them,
5 yes, your Honor.
6 THE COURT: I think I understand, more or less, what
7 the parties' both judgmental and legal positions are, but I
8 want to have an opportunity as well to focus on the filing,
9 which I had not focused on before, but before we break, I want
10 to go back now to the question of the source and what we do
11 about the source or what you want to do about the source.
12 Mr. Chatterjee, assume, for a moment, that some
13 portion and, perhaps, all of the matters that you object to
14 with respect to 02138 are not going to be the subject of a
15 prior constraint by me, and I call it a prior constraint in the
16 sense that I'm telling them they can't continue to disclose
17 materials that are offered up for public review and evaluation.
18 Nevertheless, prior constraints don't mean that there cannot be
19 some form of ex ante remedy, I'm not sure what it is, but the
20 law of prior restraints, however one finds it to be coherent or
21 incoherent, is a pretty firm element in our legal universe.
22 That having been said, we're talking about prospective
23 relief not in the form of injunction with respect to, perhaps,
24 02138. A different issue for remedial purposes is raised if a
25 party or a person subject to a protective order has violated

38
1 that protective order, and that's a matter that I obviously
2 take very seriously, irrespective of whether I'm inclined to
3 modify or would be inclined to modify that protective order if
4 it existed at the time, and the law of injunctions is,
5 irrespective of the underlying validity of the injunction,
6 people are supposed to obey the injunction until a court of
7 competent jurisdiction is modified.
8 Now, it seems to me there has to be discovery on this.
9 In fact, if the parties weren't prepared to do it, I would take
10 steps to do it, but it seems to me that the discovery process
11 can be done by the parties here with a view toward identifying
12 what the real source was of this. What would you propose?
13 MR. CHATTERJEE: Your Honor, I think that there are
14 two things that we need to start with. I think the first thing
15 that we need to start with is I do want to make sure that these
16 documents that we're all talking about are the entirety of the
17 universe of documents that are marked confidential that 02138
18 still has, and what I don't want to see happen is additional
19 documents being posted online and we have to run back here and
20 deal with this issue again.
21 THE COURT: Mr. Balin, are you in a position to
22 respond to that? That is to say, you know, I read quickly the
23 article that I guess is in the current issue and then the
24 associated postings. My reading of the article suggests to me
25 that there were more documents that may have been marked
39
1 confidential but made available to -- I keep forgetting the
2 fellow's name. Mr. Miller, is it?
3 MR. BALIN: Mr. O'Brien.
4 THE COURT: Mr. O'Brien, but is there any issue about
5 further postings or additional postings? Do you know what this
6 is, without binding you, but just to understand what the
7 potential problem --
8 MR. BALIN: I would have to talk to my client about
9 that, your Honor, to find out if there are additional documents
10 as well.
11 THE COURT: Right. I mean, the practice of posting
12 has become fairly common, so that, you know, people reading an
13 article can look at the source documents themselves, and I
14 assume that some editorial judgment was made at the time to
15 produce the ones that were thought to be of most interest, but
16 except that the process of having to respond to this litigation
17 may create additional interest that there's not going to be
18 more out there, Mr. Chatterjee. So, Mr. Balin, if you could
19 put that, add that to your agenda.
20 MR. BALIN: I have a number of questions on my list,
21 your Honor.
22 THE COURT: Okay.
23 MR. CHATTERJEE: And, your Honor, the reason that's a
24 concern is that because today on 02138 they put up some remarks
25 on one of their editor's blogs, which is a commentary by people

40
1 associated with it, saying that we were going to court today
2 and people need to download the things while they can right
3 now, because they may be enjoined, encouraging them to do it.
4 So, if the problem proliferates, we just need to know that.
5 THE COURT: Well, yes, and I'll just look to Mr. Balin
6 to respond to that. There is, you know, Mr. Balin used one of
7 the multitude of metaphors that make this so daunting, the
8 emergence of the cat from the bag or un-ringing the bell or any
9 of those things, meaning, once this gets into the public
10 domain, it's hard to control it, and, in fact, the e-mail that
11 I was sent from Gibson Dunn suggested a view that, having been
12 served with documents that were sought to be under seal but
13 were not under seal had resulted in disclosure that would
14 provide a defense in this case yesterday. So, all of us,
15 clerks offices, lawyers submitting documents and others have to
16 be careful that there are those who will be vigilant in trying
17 to find what has emerged into the public domain without
18 effective control. But, I understand the point. I'm not
19 surprised that the editor's blog gave helpful assistance to its
20 readers about how they, too, can maintain access to materials.
21 MR. CHATTERJEE: And, your Honor, the reason we did
22 come as quickly as we possibly could and, admittedly, somewhat
23 hastily put together papers very quickly is because we want to
24 avoid that. I'd like to give you a couple of case citations
25 that aren't in the papers, but we can talk about that in a

41
1 moment.
2 THE COURT: Yes.
3 MR. CHATTERJEE: But the second point of your question
4 is, well, what do we do about the going forward issues, and I
5 think there are a couple of things that need to happen as part
6 of the investigation. I think the first thing we need to do
7 is, this is the first I'm hearing about, perhaps, the First
8 Circuit beyond the just, the appendix, that there may be other
9 materials that, for some reason, are subject to public view. I
10 think we have to investigate that and make an assessment as to
11 whether things are in public there that aren't, that shouldn't
12 be, and then make whatever, you know, showings are necessary to
13 get those placed under seal.
14 THE COURT: Let me tell you about a parallel concern
15 that I have, which is, this is an adjudicatory matter; you've
16 raised an issue that requires adjudication. There is a
17 separate institutional matter for me of ensuring integrity of
18 orders in this court, so that, for example, materials that are
19 filed under seal here are kept under seal here, meaning the
20 District Court, and making inquiry of the Court of Appeals what
21 happens to them when they get over there. I don't know exactly
22 how successful you're going to be with discovery inquiry as to
23 the courts themselves. You suffer from some disabilities that
24 I won't --
25 MR. CHATTERJEE: And I wasn't suggesting that I do it,

42
1 I was just suggesting that that's one of the things that needs
2 to happen.
3 THE COURT: Right, and it's a difficult issue. I
4 don't mean to foreclose efforts, it's just that I think there
5 can be distractions in this area, and I think what I might
6 suggest is that, at least initially, I make some inquiries
7 myself so long as the parties aren't concerned about me being
8 involved in some sort of ex parte inquiry, but simply to
9 identify areas that need to be discussed or developed more
10 fully.
11 MR. CHATTERJEE: We'd appreciate that, your Honor.
13 MR. CHATTERJEE: And, so, that's the first step. I
14 think, looking at both the trial court files from the '04 case
15 and the current case and then the appellate court files is the
16 first thing that needs to be looked at. I think the second
17 thing that needs to be looked at, in light of the handwritten
18 notes and the metadata that we've located is, I do think we
19 need to investigate whether ConnectU was the source of this
20 information. Given that we've kind of rushed into court to
21 deal with this issue, I haven't given it complete thought as to
22 how to do that. I do think we need to be able to check the
23 e-mail records and understand what communications they've had
24 with the press. You'll remember, your Honor, in July of this
25 year, they organized a press conference after --

43
1 THE COURT: But that was a public event. I mean, I
2 expressed, perhaps pointedly, my own views about that, but
3 that's a little bit different than and more a prudential matter
4 than a violation of a court order, and you'll recall at that
5 time I invited the parties to consider whether or not a special
6 order should be made and no one asked for it apart from --
7 MR. CHATTERJEE: Yes, I understand.
8 THE COURT: -- apart from the continuation of
9 protective order there. So, yes, you want to find out if
10 ConnectU is involved in it, you've got some reason to believe
11 that they are.
12 MR. CALAMARI: Your Honor?
13 THE COURT: Yes.
14 MR. CALAMARI: This is Peter Calamari from Emanuel,
15 and one thing that troubles me is that very accusation.
16 THE COURT: Well, just a moment, Mr. Calamari, two
17 things. I'm sorry, Mr. Calamari, I think we have a not very
18 good connection, or maybe you're not speaking directly into the
19 phone, that's number one.
20 MR. CALAMARI: Is this better, your Honor?
21 THE COURT: Yes, it is. Number two, I'm less
22 concerned with hurt feelings about accusations than I am trying
23 to find out how we resolve potential accusations. So, what I
24 want to do is hear from Mr. Chatterjee with his proposal, and
25 then I'll hear from the other parties about what they want to
44
1 offer on that.
2 MR. CHATTERJEE: And, your Honor, just to be clear, I
3 think we should follow the approach that we architected at the
4 very beginning, which is, we first check with the Court as to
5 the documents that were of greatest concern with us, to make
6 sure they were still under seal in this court's record. If we
7 determine that it was, in fact, some sort of a clerical error
8 on the side of the First Circuit, then we'll figure out how to
9 deal with that. If it turns out that may not be the case, and
10 we think it may not be the case, the online journal, for
11 example, just as one other example, has a confidentiality stamp
12 that's never been submitted to a court, never, and --
13 THE COURT: Well, you said that, but the online
14 journal has been submitted in connection with the second
15 amended complaint, hasn't it?
16 MR. CHATTERJEE: It's a different document, your
17 Honor. It's the same content, except if you compare the two
18 documents, there are things on them, there are markings on them
19 that indicate that they're different documents.
20 THE COURT: This is the handwriting?
21 MR. CHATTERJEE: No. The handwriting's one document,
22 then the online diary of Mark Zuckerberg, the one we were
23 talking about just a moment ago --
24 THE COURT: Right --
25 MR. CHATTERJEE: -- the one that was submitted to the

45
1 Court was provided as two pages, and it did not have a stamp at
2 the bottom that said confidential, because it was produced on
3 the CD, where the CD was stamped confidential.
4 THE COURT: But couldn't the reproduction of this
5 either include or not include the addition of a confidentiality
6 or confidential reference?
7 MR. CHATTERJEE: Not if it originated from a court
8 file, because that was not in the court file, your Honor.
9 THE COURT: Well, couldn't someone put it on, I mean,
10 to throw you off the scent?
11 MR. CHATTERJEE: I'm sorry, your Honor?
12 THE COURT: To throw you off the scent as to source,
13 it's disinformation.
14 MR. CHATTERJEE: Potentially.
15 THE COURT: Is the printout of it the same lineage as
16 the one that's in the Court file?
18 THE COURT: So, the only difference, really, is it
19 says "Confidential" on it?
20 MR. CHATTERJEE: There are several differences, going
21 back to the point I made. The first one that I mentioned is
22 this sticker that appears to be on it. The second is this
23 metadata information, the fact that it was a dot doc file.
24 THE COURT: I see. I guess I understand that.
25 MR. CHATTERJEE: There are lots of indications that

46
1 that document didn't originate from a court file.
2 THE COURT: Okay. I guess what I really want to go to
3 is, so what do you want to do?
4 MR. CHATTERJEE: So, what I would like to do, your
5 Honor, is I'd like us to confirm that it isn't in any court
6 file, step one, and if your Honor can help us, we'd greatly
7 appreciate it. Step two is I think we need to investigate it
8 by understanding what has or has not been given by ConnectU to
9 the media, and we need discovery on that. Now, at this point
10 I'm willing to make the assumption that it is not a lawyer
11 that's involved that engaged in this conduct, although some of
12 the documents really shouldn't be in the hands of parties.
13 THE COURT: Shouldn't be because of the protective
14 order or shouldn't be just as a matter of good housekeeping?
15 MR. CHATTERJEE: I would say both, your Honor, that
16 the protective order certainly governs that some of this
17 information -- I can't imagaine why the Winklevoss brothers
18 would have our cash flow statement, for example, but also, as a
19 matter of good housekeeping, I think that that's true. I think
20 once we explore what happens with the individuals and we
21 understand what they may or may not have done, then we have to
22 revisit the issue and we address the more sensitive issues
23 associated with counsel. I don't want to do that easily,
24 because I understand this is a serious issue.
25 THE COURT: What are you saying, that you want oral
47
1 depositions of the parties in the case?
2 MR. CHATTERJEE: I also will want document discovery,
3 your Honor, because I think, if this, in fact, originated with
4 ConnectU, for example, I think that dot doc file was e-mailed.
5 THE COURT: You think it was e-mailed?
6 MR. CHATTERJEE: I think it was e-mailed. I don't
7 know for certain, but it's an electronic file, it came from
8 somewhere. It's dated three days after we produced it. It
9 came from somewhere. I want to know -- I want to see if anyone
10 at ConnectU was the point of origination for that.
12 MR. CHATTERJEE: So, I do think there will be some
13 document discovery, but I think that's primarily it, it's
14 document discovery and depositions. I also think that we
15 should seek discovery from 02138, and I understand that may be
16 a sensitive issue, but because they've already identified where
17 they're claiming their source is, I think we're allowed to test
18 that.
19 THE COURT: All right. Mr. Hornick or Mr. Calamari,
20 do you have views? Let me just explain. I do have a general
21 disposition, which is that I'm going to permit some sort of
22 discovery in this area, and I just want to, perhaps, refine it
23 and maybe end up leaving it to the counsel to present me with a
24 discovery plan.
25 MR. CHATTERJEE: And, your Honor, there is one other

48
1 thing that I would like -- I'd like to find some handwriting
2 samples that preexist the hearing today from each of the people
3 involved on the ConnectU side of the case, because I'd like to
4 try and compare that against the handwriting on the Harvard
5 Administrative -- the annotations on the Harvard Administrative
6 Board documents that were posted, because we don't have that
7 document --
8 THE COURT: What does that mean, that you want
9 letters that they've written or that sort of thing?
10 MR. CHATTERJEE: Something like that, your Honor,
11 because we know that the handwriting is on Dyvia Narendra's
12 deposition corrections. It's fair to assume that it may be
13 him, but it's also fair to assume that maybe somebody else did
14 that writing and that he authorized it, and we --
15 THE COURT: You mean, on the deposition correction?
17 THE COURT: That's a quick question to him, did he
18 sign it or not.
19 MR. CHATTERJEE: Well, he might have signed it, but he
20 might not have actually filled it out.
21 THE COURT: The annotations, but you can ask him that.
22 MR. CHATTERJEE: Right.
23 THE COURT: So, you're looking for pre-existing
24 handwriting exemplars --

49
1 THE COURT: -- of the relevant people here.
4 MR. CHATTERJEE: On some of the handwriting we have,
5 for example, it's not quite a large-enough sample to make a
6 comparison. We have a pretty good one now, but we'd like to
7 get more, because we do think that might --
8 THE COURT: Do any of these people actually use
9 handwriting anymore?
10 MR. CHATTERJEE: Well, your Honor, someone did on the
11 Harvard application. Mr. Narendra, or whoever filled out that
12 that form, did it in correcting the deposition. We do have
13 some handwritten notes where names of people and things like
14 that are identified that have been produced in this case.
15 MR. HORNICK: Excuse me. This is John Hornick. Neel,
16 could you explain the handwriting thing again? I didn't really
17 catch it at the beginning, because you were a little garbled.
18 MR. CHATTERJEE: Yes, I'm happy to, your Honor. May I
19 explain it to Mr. Hornick?
20 THE COURT: Yes, go ahead, because I need to hear
21 things three or four times before I absorb them.
22 MR. CHATTERJEE: There is a document from Harvard that
23 is Mark Zuckerberg's college application. That document was
24 produced by Harvard in this case. The document that was posted
25 online originally had handwritten notes on it saying a number

50
1 of things, and when we asked for the Social Security number and
2 address information to be redacted, a new version was put up.
3 That handwriting was also redacted in the new version that was
4 put up on the website in addition to the identifying
5 information. We submitted those annotations that were on the
6 side of the first posted Harvard application and the
7 annotations, or not the annotations, the corrections to Dyvia
8 Narendra's deposition to a handwriting expert, and that expert
9 has come back and has said, at least preliminarily, that the
10 two handwritings on the Harvard application, the annotations,
11 the document we don't have, was not produced in this case, and
12 the Dyvia Narendra deposition corrections are a probable match.
13 THE COURT: Okay. The one part of that, I'm sure
14 there are other parts that I didn't fully appreciate, but the
15 one part I don't fully appreciate is you said that the Harvard
16 application was not produced in this case?
17 MR. CHATTERJEE: No, your Honor, so, there are three
18 versions of the Harvard application.
20 MR. CHATTERJEE: I can give you a copy.
21 THE COURT: Just tell me about them, first.
22 MR. CHATTERJEE: The first one had no notes in the
23 margin area.
24 THE COURT: Is that the one that was submitted by
25 Harvard as discovery?
51
1 MR. CHATTERJEE: Yes, that was the one that was
2 produced in discovery by Harvard and is part of the Court
3 record.
4 THE COURT: Okay. Number two.
5 MR. CHATTERJEE: Number two, we have not found this in
6 the Court record, is one that has handwritten notes in the
7 margins in commentary. Number three is the -- and that was the
8 version that was posted by 02138 on their website. Version
9 three has certain personally identifying information from Mr.
10 Zuckerberg redacted, and it also has redacted some of these
11 handwritten margin comments.
12 THE COURT: Okay. Now I think I understand. So, the
13 exemplar you're using is number two here, that's what you
14 submitted as the known handwriting to the expert and the
15 questioned handwriting was -- that's the questioned
16 handwriting, and the known handwriting is the deposition
17 annotation?
18 MR. CHATTERJEE: Correct, your Honor, and just to
19 that, I mean, it would also be helpful if there are a way for
20 us to get originals on both of those, obviously, because every
21 time you make a copy the quality degrades.
23 MR. CHATTERJEE: So I think I framed the discovery
24 issues, your Honor.
25 THE COURT: Yes.

52
1 MR. TIGHE: Good afternoon, your Honor, I'm Daniel
2 Tighe for the ConnectU plaintiffs, your Honor. Just
3 preliminarily, your Honor, we have scrambled over the last
4 couple of days to try to obtain some declarations from our
5 clients, and they're sort of scattered, but we have
6 declarations from the two Winklevosses, and they say, to their
7 knowledge, they have never had possession of any of this
8 material. Certainly, they didn't participate in the writing of
9 the article, they never sat for an interview, and they never
10 disclosed any confidential information, which I'll pass up to
11 your Honor.
12 THE COURT: I think one of the things I'm going to
13 suggest to the parties is, rather than submitting provisional
14 materials now, that they be, that everybody take a deep breath
15 and think carefully about what they're submitting here, in
16 light of discussions that we've had, because my experience,
17 which is not insignificant with leak investigations and similar
18 activities, is that the nondisclosure phase is more dangerous
19 than the original problem, and, so, to ensure that the parties
20 have carefully considered their positions, I'm simply going to
21 suggest that I won't be acting on such declarations at this
22 time. I understand that that's your representation regarding
23 your clients or, at least, the Winklevoss clients.
24 MR. TIGHE: Thank you, your Honor, and it is my
25 understanding that Mr. Narendra would say the same, we just

53
1 haven't received, or I hadn't by the time I left my office --
2 THE COURT: Right.
3 MR. TIGHE: And just the second point, your Honor, is
4 if Mr. O'Brien offers to submit his own declaration saying that
5 he's obtained this information from the First Circuit Court of
6 Appeals, then I would just submit that, your Honor, you know,
7 if there are footsteps or tracks, you know, why would we
8 originally or initially assume that it's a zebra rather than a
9 horse or a dog. Mr. O'Brien gives us the answer in his papers,
10 offers to provide a declaration, saying --
11 THE COURT: Which do you label your clients?
12 MR. TIGHE: Neither, your Honor. I think that, I'm
13 just suggesting that I think we're reaching for some of these
14 inferences.
15 THE COURT: Well, perhaps. My own view is
16 declarations are fine in their own place, but this is one that
17 I think in which actual live examination of witnesses is
18 appropriate.
19 MR. BALIN: Your Honor, this is Mr. Balin, and I'm
20 just going to, I think this is an appropriate point for me to
21 chime in.
22 THE COURT: I'm not sure -- Mr. Balin, just a moment,
23 I'm not sure it is yet, because I want to explore between the
24 parties first what their view is, and then, of course, I'm
25 going to hear from you.

54
1 MR. BALIN: Very good, your Honor.
2 MR. TIGHE: My last point, your Honor --
3 MR. CALAMARI: This is Calamari again. Hopefully, you
4 can hear me a little better this time.
5 THE COURT: It's important that I hear you and, even
6 more important, that the court reporter does. If you could
7 speak up a little bit.
8 MR. CALAMARI: I'm trying. I'm speaking as loudly as
9 possible, and my mouth is almost on top of the microphone.
10 THE COURT: Okay. I recognize the dangers of telling
11 a lawyer to shout.
12 MR. CALAMARI: I understand that your Honor is
13 disposed towards having some discovery here.
15 MR. CALAMARI: Again, there is no indication that
16 these documents came from anyone associated with the ConnectU.
17 If there's going to be discovery, it ought to be open-ended.
18 The documents could have come from any of the parties, and we
19 really believe that the documents came just from the source
20 that has already been identified as the source of the court
21 file, but if Thefacebook defendants want to launch this hunt,
22 then they ought to be part of the hunt, since there is no
23 reason to believe that these documents couldn't have come from
24 any of their file.
25 THE COURT: Right. Well, all of that's true but not

55
1 very helpful. The issue for me is to try to set a reasonable
2 discovery undertaking, and the concept of sauce for the gander
3 adds a certain taste to this but really is not going to advance
4 the discussion.
5 MR. CALAMARI: With all due respect, your Honor, we're
6 being accused of something --
7 THE COURT: Mr. Calamari, I told you before -- now
8 I'll shout. I told you before that I'm not really interested
9 in the back-and-forth of accusation, I want to get to the
10 source of this, and your suggestion is interesting and
11 certainly something to be taken into consideration in
12 formulation of a meaningful discovery plan, but let me be
13 clear, I consider that there has been a violation of the
14 integrity of the court process. It may be a result of the
15 court's own negligence or that of the clerk's office, it may be
16 the result of disclosure improperly by those who were covered
17 by a protective order, but, in any event, we're going to get to
18 it, but we're not going to get to it with references to hurt
19 feelings about accusations and suggestions of tit for tat.
20 We're going to go a little deeper than that.
21 So, I guess my view on this, as between the parties,
22 is that I'm going to leave it to the parties to develop or
23 attempt to develop a discovery plan, but this is a matter I
24 take, as I'm sure the parties are aware, very seriously. So, I
25 think during the break that we're going to take so that Mr.
56
1 Balin can consult with his client, the parties ought to talk a
2 bit about what a reasonable discovery plan is and a reasonable
3 time frame for it. I have every expectation that a question
4 documents examiner is not going to feel particularly
5 comfortable with the foundation that the question document
6 examiner has now, would want more, and is entitled to more.
7 There is a necessity, I think, of exploring precisely what
8 these pdf documents or document required, but I want a
9 reasonable time schedule that sequences discovery appropriately
10 rather than seeks to distract by requiring some form of
11 equilibrium in terms of the amount of time, after all, the
12 first order of business, as was brought to my attention by
13 Thefacebook rather than by ConnectU. So, as to that issue,
14 we'll look forward to at least preliminary discussion when we
15 return here at, I'll say, 3:30.
16 MR. HORNICK: Your Honor, this is John Hornick. May I
17 say something?
18 THE COURT: Sure.
19 MR. HORNICK: I have two points. One may help the
20 parties to reach an agreement on the discovery plan, and the
21 other one is to explain the date on the facemash online
22 journal. With respect to the date of January 10th, that
23 document was produced to ConnectU by Facebook on, I think, Mr.
24 Chatterjee said January 7th. It was produced on a CD ROM, pfd
25 84, in php format.

57
1 THE COURT: I'm sorry, the acronym again?
2 MR. HORNICK: php, dot php.
3 THE COURT: Okay.
4 MR. HORNICK: And we sent the disc, pdf 84, to
5 ConnectU's expert, Mr. Parmet and on January 10th, he sent me
6 an e-mail with this document attached to it, he had found it on
7 the CD ROM, and he said, "For convenience, I'm converting it
8 into a pdf," and the date on the top is the date that he
9 created the pdf from the php file and e-mailed it to me. From
10 that point forward, that document was maintained here at the
11 firm as a php document. Any time we wanted to look at it, any
12 time we wanted to make a copy of it, we made a copy of that php
13 document, and -- I'm sorry -- pdf. After we converted it into
14 a pdf on January 10, we kept it in that format from that time
15 on. So, that explains how that document was created on January
16 10th. It was a conversion of the document from php into pdf.
17 Now, after that, and this document that was filed with
18 the Court, I'm sorry, this document that was made available
19 online, it is a modified version of that document, because it
20 has the date in the upper right-hand corner of January 10th.
22 MR. HORNICK: But anyone could have made those
23 modifications, and we've looked into what you would do if you
24 wanted to take a paper document that's available in the court,
25 like, if Mr. O'Brien had gone to the court and he got a copy of
58
1 this document somehow, it would have been paper, and then he
2 would have scanned that in so that he can make it into an
3 electronic form, and at that point you can easily make changes
4 that are the differences between Exhibit 8 to the first amended
5 complaint and the version that was published on the internet.
6 THE COURT: I guess the assumption that you're making,
7 I appreciate the information, Mr. Hornick, I have one question
8 and one observation. Was the time the same? That is, the date
9 is January 10th. Was the time 9:33?
10 MR. HORNICK: Yes.
11 THE COURT: So, this is the date and time that it was
12 returned to you and reduced to a pdf file after being shown to
13 your computer forensic person?
14 MR. HORNICK: That's right.
15 THE COURT: Okay. And the observation, I guess, I
16 have is the assumption of scanning, and maybe Mr. Balin's going
17 to be able to answer that question of whether or not Mr.
18 O'Brien was engaged, was scanning these documents.
19 MR. BALIN: I cannot answer that question, your Honor.
20 THE COURT: Okay.
21 MR. HORNICK: I'm only saying, your Honor, this is
22 John Hornick again, there had to be scanning, because if the
23 document came from the Court, it would have been a paper copy,
24 because documents under seal have to be filed in paper form,
25 and to get it onto the internet it would have had to be

59
1 scanned.
2 MR. BALIN: That's true.
3 THE COURT: Right.
4 MR. CHATTERJEE: And, your Honor, just, if I may add,
5 we've considered that issue. When you scan a document into a
6 pdf format, it creates a much larger file size than what's
7 converted from a dot doc file. This is a smaller file size pdf
8 than what would happen with scanning.
9 THE COURT: I look forward to learning a great deal
10 about computer forensics in all of this, but now your turn, Mr.
11 Balin. I take it that the offer still stands with respect to
12 the submission of a declaration by Mr. O'Brien?
13 MR. BALIN: I certainly will talk to my client, your
14 Honor.
15 THE COURT: Well, is your client likely to think now
16 that something that he didn't think then, that being when you
17 filed the document with the court with that footnote --
18 MR. BALIN: I don't think so, your Honor. This is,
19 indeed, after speaking with the client, and my understanding is
20 what's been told to me, so I will check.
21 THE COURT: Okay. Let me understand, because I
22 recognize the sensitivity of the discovery process in this
23 setting.
24 MR. BALIN: Yes.
25 THE COURT: Putting to one side what this seems not to

60
1 be or, at least, aspects of it seem not to be, the
2 representations made don't indicate that with respect to any of
3 these documents that Mr. O'Brien's only source was what we
4 could call a privileged communication with a newsman's source.
5 The representations are that these are, he obtained them in the
6 public domain --
7 MR. BALIN: That's correct, your Honor.
8 THE COURT: -- whether improperly or not, they're in
9 the public domain.
10 MR. BALIN: Right.
11 THE COURT: I am, however, quite concerned about the
12 process of burdening journalists with the obligation to appear
13 at depositions and so on, irrespective of whether or not
14 there's a question of privilege that arises, and I think the
15 first step is to obtain a declaration, a full declaration from
16 Mr. O'Brien, and I'm sure, just as I mentioned to -- Mr. Tighe
17 is it?
18 MR. TIGHE: It's Tighe, your Honor, that's correct.
19 THE COURT: -- Mr. Tighe, you're going to, everyone's
20 going to want to talk to their client more carefully rather
21 than doing this in response to a real time crunch, so that we
22 have their last and best and final offer of what they believe
23 after refreshing their recollection and thinking carefully
24 about committing themselves to something under oath. So, I
25 guess the short of it is, my first view is that, if Mr. O'Brien

61
1 can provide a comprehensive declaration regarding the source of
2 these materials, that is, the materials that have been posted,
3 not his sources for the article itself or anything like that,
4 but the materials that have been posted, that would be a
5 helpful, perhaps not the final step, but perhaps the final step
6 in discovery from 02138 or its affiliates.
7 MR. BALIN: I thank you, your Honor. You actually
8 made the point that I was going to make better than I could
9 have, and, indeed, we agree that discovery of the journalists
10 really should be the last resort, and I will, of course, speak
11 with him and with the magazine about a declaration.
12 THE COURT: Okay. So, I think I've outlined us some
13 tasks between now and 3:30, and what we'll do is reconvene at
14 3:30 to discuss this. I have a series of questions broadly
15 defined as to whether or not there are any further editorial
16 changes that 02138 is prepared to make and some other matters
17 that you may want to bring to my attention, in particular, when
18 we might expect an affidavit or declaration from Mr. O'Brien
19 and then the question of discovery, and I'll rule on the more
20 specific question of their request for injunctive relief after
21 I've heard from 02138. Is there anything else that we should
22 talk about before we break?
23 MR. HORNICK: Judge, this is John Hornick. I have a
24 second point from before.
25 THE COURT: Yes, go ahead.

62
1 MR. HORNICK: My suggestion would be that when the
2 parties retire to discuss the plan for discovery, that, first,
3 we formulate a plan for investigating whether the source was
4 the court; in other words, Mr. Chatterjee says he wants to
5 check with the court, we can put together a plan for
6 investigating that. Your Honor has said that he wanted to make
7 some investigations.
8 THE COURT: Right.
9 MR. HORNICK: And then, if that proves to be the
10 source and the only source, then I would propose that we
11 reconvene with the Court at some time in the future, and if
12 that turn us out to be the source, then there won't be any need
13 for any additional discovery, and if there is a need at that
14 time, then I would propose that the parties formulate a
15 discovery plan at that time that delves into what ConnectU did
16 or didn't do, what counsel did or didn't do.
17 THE COURT: Well, I understand the thrust of what
18 you're saying, Mr. Hornick. I think that the way I would
19 formulate it is this for the parties instrumentally in trying
20 to think about what you want to do in the next hour and a half,
21 and that is, on the assumption that there is reason to believe
22 that this court was not the only source of, at least, certain
23 of the documents of this case, what form should discovery
24 proceed on. My guess is that the parties will want to see Mr.
25 O'Brien's declaration as well before moving forward, but I'd

63
1 like, preliminarily, for the parties to be thinking that there
2 will be some form of discovery inter se regarding the role of
3 the parties in the disclosure of these documents. I've heard
4 enough, I think, to suggest that it may, at least with respect
5 to one document, may have come from a party source, but in any
6 event, I think we'll make sure that all of the drums are tapped
7 on this and are tapped in parallel fashion, not sequentially,
8 as you suggested.
9 MR. HORNICK: Your Honor, it's John Hornick again.
10 Could Mr. Balin ask his client if the handwritten notes on the
11 Harvard application came from Mr. O'Brien?
12 THE COURT: Yes, that's a good question. Mr. Balin,
13 you can ask and, of course, you will tell us whether or not
14 he's prepared to respond.
15 MR. BALIN: Absolutely, your Honor.
16 MR. CHATTERJEE: Your Honor, just to add to that, if
17 he knows where they came from, if it wasn't him, that would be
18 useful now, too.
19 MR. BALIN: Let's be clear. You're talking about the
20 application that appears on the site?
22 MR. BALIN: Okay.
23 MR. CHATTERJEE: As it originally did.
24 THE COURT: As it originally appeared on the site. As
25 I understand it, there are three iterations of this document,

64
1 at least three that have been brought to my attention, the
2 first one being an iteration that had some holographic
3 additions to it. All right? Okay. So, we'll try to be back
4 here at 3:30.
5 MR. CHATTERJEE: Your Honor, just two very quick
6 things. For the 3:30 call, Mr. Bauer has informed me we can
7 use the same call-in number, and as your Honor is considering
8 our request, if I could just provide you with two cases.
9 THE COURT: Yes, that would be helpful.
10 MR. CHATTERJEE: One of the cases is -- actually, I'll
11 provide you with three cases. One is called DVD Copyright
12 Control Association.
13 THE COURT: B as in Boy?
14 MR. CHATTERJEE: DVD, and I will give you a copy of
15 them.
16 THE COURT: Just so that Mr. Balin and Mr. Hornick and
17 Mr. Calamari have the cites.
18 MR. CHATTERJEE: I'll give the citations.
19 THE COURT: Go ahead.
20 MR. CHATTERJEE: 31 Cal.4th 864, it's a California
21 Supreme Court opinion from 2003. The ZYPREXA case, which is
22 cited in the papers, I won't restate the citation, because I
23 think they know the case. The third one goes to, if your Honor
24 decides to issue a restraining order related to internet
25 activity, a case that's dealt with a very similar issue, the

65
1 DVD Copyright Control Associations it's the same plaintiff, and
2 that citation is 2000 West Law 48512. It's a Superior Court
3 opinion from the San Jose Superior Court in Santa Clara. I'll
4 provide your Honor with copies of those three opinions, if I
5 may approach.
6 THE COURT: Yes. I just noted that these are
7 California cases. I assume that they deal with First Amendment
8 analysis?
9 MR. CHATTERJEE: Yes, your Honor, and the reason that
10 I'm citing those two cases is because they go exactly to the
11 issue of posting content that is of a private concern on a
12 website --
14 MR. CHATTERJEE: -- and the difference between that
15 and editorial commentary where an actual article is written,
16 talks specifically about -- they referred to that the -- 02138
17 referred to the Procter & Gamble case.
19 MR. CHATTERJEE: These two cases, well two of the
20 three cases address that very same issue and, in many
21 instances, distinguish the Procter & Gamble case for the exact
22 same reasons we think the Court should adopt a different
23 approach here.
24 THE COURT: Okay. Well, you'll pass up those cases,
25 it will save me some copy time, and I'll see you at 3:30.
66
1 MR. CHATTERJEE: Thank you very much, your Honor.
2 MS. RITVO: Thank you, your Honor.
3 THE COURT: We'll be in recess.
4 (Recess taken from to 2:10 p.m. to 3:45 p.m.)
5 THE CLERK: This Honorable Court is back in session.
6 You may be seated.
7 THE COURT: Well, do we have Mr. Balin on the phone?
8 MR. BALIN: We do, your Honor.
9 THE COURT: Okay. Mr. Balin, what do you have to
10 report?
11 MR. BALIN: You've given me a laundry list, your
12 Honor, and I think the first matter I wanted to report is
13 mystery solved, I believe. We have gone over the two documents
14 that Mr. Chatterjee --
15 THE COURT: Just a moment, Mr. Balin, if you could
16 speak up. One of the problems is, obviously, so the court
17 reporter is able to pick up.
18 MR. BALIN: I apologize. We went over, and I also
19 apologize, of course, you know, we were playing catch up a
20 little bit, we went and relayed what Mr. Chatterjee said about
21 these two documents. One was the application that had
22 handwritten notations on it --
24 MR. BALIN: -- and the other one was this online diary
25 that Mr. Chatterjee is concerned may not come from the Court's
67
1 file and, of course, we oppose that --
2 THE COURT: Right.
3 MR. Balin: -- and I'd like my colleague, Amber
4 Husbands is on the phone with us, and, Judge, because this
5 involves some computer language, I'm going to get it wrong if I
6 do it. If I could ask, with your permission, to just allow her
7 to quickly go through the two documents we've learned from our
8 clients.
9 THE COURT: If she could spell her name, too, so that
10 the court reporter could get that down.
11 MS. HUSBANDS: Yes. It's Amber, A-M-B-E-R,
12 H-U-S-B-A-N-D-S, also with Davis Wright Termaine.
14 MS. HUSBANDS: The first document is the Harvard
15 application. This is a file that Mr. O'Brien got from the
16 Court, from the First Circuit, as he did with all of the
17 documents that are online. The document that Mr. O'Brien
18 provided to the magazine had his handwritten notes on it, Mr.
19 O'Brien's handwritten notes. When the magazine first posted
20 the document on the website, it meant to remove all of the
21 handwritten notes to clean up the document. It apparently did
22 not get all of them, and then when it went back, when the
23 computer staff went back to redact the personal identifiers at
24 the request of Facebook, it also removed some of the additional
25 handwritten notations that it noticed on the second go-round.

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2 MS. HUSBANDS: The document came from the court, and
3 the handwritten notes were Mr. O'Brien's.
4 THE COURT: In that connection, Ms. Husbands, the
5 Court that you're speaking of is the --
6 MS. HUSBANDS: The First Circuit.
7 THE COURT: The First Circuit Clerk's Office.
8 MS. HUSBANDS: Yes.
9 THE COURT: Okay.
10 MS. HUSBANDS: As far as the second document, the
11 online diary, that also came from the Court files of the First
12 Circuit, however, the document that Mr. O'Brien copied was a
13 very poor copy. When he copied it again and sent it to the
14 magazine, when they scanned that, it was illegible, you
15 couldn't read it, they couldn't put it online. They had a
16 member of their staff retype, recreate the entire document.
17 They put the document in front of them, they opened up a Word
18 file, and she typed the document exactly as she saw it from the
19 file from the court into a new Word document.
21 MS. HUSBANDS: She reproduced the confidential tab,
22 she reproduced the 10 January label at the top, because that's
23 what the Court document -- the header and footer on the
24 document that she had a copy of.
25 THE COURT: Okay.

69
1 MS. HUSBANDS: It was then converted to a pdf from
2 Word, just as they suspected, that's why the file was smaller,
3 that's why it indicates that it's a dot doc document and not
4 copied from a paper version, because it wasn't, it was
5 recreated.
6 THE COURT: May I ask one thing about that? You are
7 referring to Mr. O'Brien making copies. Did he take his own
8 scanning equipment?
9 MS. HUSBANDS: No, he made copies on the Court's copy
10 machine; you have to pay for it at the court.
11 THE COURT: Right. So, he made those copies, then
12 scanned them and sent them over to --
13 MS. HUSBANDS: No, he made paper copies, and he, at
14 the request of the magazine, sent all of his paper copies to
15 the magazine, which is why there are his handwritten notes on
16 some of them.
17 THE COURT: I see.
18 MS. HUSBANDS: They scanned them in.
19 THE COURT: And they, in turn, scanned them in?
20 MS. HUSBANDS: The magazine scanned the paper copies
21 that the reporter sent to the magazine.
22 THE COURT: All right. In that connection, is it
23 possible to have both Mr. O'Brien and whoever was the
24 percipient witness of the online diary copy exercise file
25 declarations? I guess, Mr. Balin, that's really for you.

70
1 MS. HUSBANDS: Yes, it is possible, and both the
2 reporter and editor of the magazine will -- are willing to
3 submit declarations to that effect.
4 THE COURT: All right. That takes care of the, I
5 think the first, or that, I take it, is the response to those
6 two issues. There are a few more. Mr. Balin. Mr. Balin?
7 MR. BALIN: Judge, can you hear me? I'm sorry.
8 THE COURT: Yes.
9 MR. BALIN: In his declaration, the reporter, Mr.
10 O'Brien, will also, again, confirm that he got the documents
11 from the court file.
13 MR. BALIN: You also asked, your Honor, about
14 considering --
15 THE COURT: Can I just stop you for a moment, Mr.
16 Balin?
17 MR. Balin: Sure, your Honor.
18 THE COURT: With respect to that, when might we expect
19 a declaration from the reporter and whoever at the magazine was
20 involved in the copying and of the online diary?
21 MR. BALIN: Your Honor, Monday or Tuesday. What is
22 your preference?
23 THE COURT: Well, I think, so that everybody's clear
24 on it, I think Tuesday is probably best, just so, you know,
25 it's been vetted fully, because I want to emphasize that it's

71
1 going to be a document subscribed to under the pains and
2 penalties of perjury.
3 MR. BALIN: And I understand that, your Honor, and
4 that will give us the time to carefully go over things.
5 THE COURT: Okay. So, that's Tuesday, I think, the
6 4th.
7 MR. BALIN: Okay.
8 THE COURT: Now, I interrupted you. Go on. I think
9 you were talking about the exercise of editorial judgment.
10 MR. BALIN: Yes, your Honor. I did speak to the
11 magazine, and one of the things you had raised was in the
12 transcript, this is the deposition transcript of Mr.
13 Zuckerberg, and Mr. Chatterjee was asked to identify what they
14 were concerned about, and we, I think, heard that at page, I
15 think it's about 216 to 219 there was information, and you had
16 asked about possibly considering redacting individual's names.
18 MR. BALIN: I have spoken to the magazine. Shame on
19 me, but this is, apparently, the person is a very well-known
20 public figure.
21 THE COURT: Hold on just a second. You're turning
22 away.
23 MR. BALIN: I'm sorry, your Honor. The person is a
24 well-known public figure. He founded Napster, is very much in
25 the news both with respect to business tech, pop culture, is a

72
1 real public figure, and I did chat with them, and they have to
2 respectfully decline that invitation.
4 MR. BALIN: There was, however, someone on the next
5 page, and I'll identify it, it's page 219. It was, apparently,
6 a woman that was accompanying him.
7 THE COURT: This was page 9?
8 MR. BALIN: I'm sorry, no.
9 THE COURT: Line 9?
10 MR. BALIN: Page 219 of Exhibit 6, your Honor.
11 THE COURT: Line 9?
12 MR. BALIN: Absolutely, your Honor, you're correct,
13 line 9.
15 MR. BALIN: In their editorial judgment, they're happy
16 to redact that name.
17 THE COURT: Okay.
18 MR. BALIN: I did speak with them also about the
19 statement of cash flow, and they had, I believe, your Honor,
20 much the same -- it is part of the history of this company, but
21 they don't think it's truly disclosing much of anything, and,
22 indeed, at least it's publicly reported today that there's been
23 a $60 million infusion of capital into Facebook. They consider
24 this part of the history of the reporting. It is part of the
25 story, so that's where the magazine ended up with that.

73
2 MR. BALIN: The last thing that you asked me about,
3 your Honor, was the -- I'm going to turn away so I can find a
4 document, your Honor, on the paper --
5 THE COURT: I think it's Exhibit 8.
6 MR. BALIN: Correct, your Honor, which was the name of
7 an individual, I believe, in the first line.
8 THE COURT: Right.
9 MR. BALIN: The magazine's view is that that
10 reference, quite frankly, is important not because of the
11 individual's name but because of what it says about Mr.
12 Zuckerberg. It is an article about Mr. Zuckerberg.
13 THE COURT: Well, unfortunately, the individual's name
14 is used there.
15 MR. BALIN: I agree with you, your Honor, but at
16 least, in their editorial judgment, it does have value, it is
17 part of the kind of story about who this public figure, this
18 very public figure Mr. Zuckerberg is, and with each of these,
19 your Honor --
20 THE COURT: Let me just understand this for a second.
21 MR. BALIN: Yeah.
22 THE COURT: A public figure refers to a nonpublic
23 figure and, consequently, that nonpublic figure is held up to
24 shame and disrepute, and that's an appropriate editorial
25 judgment? Perhaps I haven't been pointed enough about that.

74
1 That Mr. Zuckerberg was distracted by an individual may or may
2 not be something worthwhile, but I am very concerned,
3 obviously, about the individual's name here. Whether or not
4 she is a student or was a student at that time is a subscriber
5 of 02138. I simply can't understand what the reason for the
6 specific identification of that individual is, particularly
7 when the redaction was made with respect to the individual said
8 to -- the woman said to accompany someone you say is a public
9 figure on page 219 of the deposition.
10 MR. BALIN: Right. Your Honor, I in no manner mean to
11 minimize the concern you express, and I think different people
12 could well come to different conclusions, but I, at least in
13 this case, it is judgment of the magazine and at least the
14 legal principles that ultimately they make the judgment, good
15 case, bad case, and I, you know, that they feel that it is part
16 of the story about this public figure, Mr. Zuckerberg. I hear
17 exactly what you say, your Honor.
18 THE COURT: Well, I'm sure that you'll advise them
19 with respect to the law of defamation, and the individual
20 involved is separate from Mr. Zuckerberg. So, I think there
21 are some questions that are raised here, without dealing with
22 them in any fashion, but I would urge you to consult again with
23 your clients about this, both in terms of consistency with
24 their editorial judgment for the deposition and also in some
25 sort of appreciation that a stranger, an innocent in this

75
1 litigation and an innocent with respect to Mr. Zuckerberg's
2 activities, she seems solely to be someone who happened to be
3 on his mind at a particular time, has to have her name dragged
4 through or, more accurately, floated through cyberspace. So I
5 simply encourage you to talk to them again. All right? I take
6 it that you're going on to mute on your telephone.
7 MR. BALIN: I'm sorry, I pushed the wrong button, I
8 apologize, your Honor, and I will, again, as you've asked, of
9 course, talk to my client about what you said to me.
10 THE COURT: Okay.
11 MR. BALIN: The last issue that you asked me about was
12 Mr. Chatterjee's question, do we have more documents in our
13 possession. I am told that we do, we do have some documents,
14 and I cannot make a representation about whether or not the
15 client would or would not post any additional documents.
16 THE COURT: Let me put the question differently. Is
17 there a present intention to do so?
18 MR. BALIN: I guess the best way to answer it, Judge,
19 is that they made a determination, obviously, in connection
20 when they first posted the documents about what they thought
21 were the most useful to readers of the article, visitors to
22 their website. I have not heard, but I can't, I do not want to
23 in any manner in any communications with you, Judge, make a
24 misrepresentation, and, so, they have not, there's no
25 indication that they're rushing off to publish more, but I

76
1 can't represent whether they would or would not post any more.
2 THE COURT: All right. I think I understand your
3 position.
4 MR. BALIN: Thank you, your Honor. If I've missed
5 something, I'm happy to address that as well. There will come
6 a time, I assume, that you would like me to address the merits
7 of the --
8 THE COURT: Yes.
9 MR. BALIN: -- of the motion itself --
11 MR. BALIN: -- the prior restraint motion. If it's
12 that time, I'm happy to talk. If you want me to wait, I'm
13 happy to do what lawyers have a hard time doing, but I'll shut
14 up for a second.
15 THE COURT: Well, let me hear from the parties whether
16 there's anything further at this time that you wish to hear
17 from Mr. Balin on behalf of 02138.
18 MR. CHATTERJEE: You mean, your Honor, with respect to
19 the issues that you talked about, I think I understand their
20 positions. I'm prepared to discuss them at your discretion,
21 your Honor.
22 THE COURT: Okay. Mr. Tighe?
23 MR. TIGHE: Your Honor, I would only ask if there are
24 concerns that Mr. Chatterjee or anybody else has with Mr.
25 O'Brien that could be addressed in his declaration it might

77
1 streamline or eliminate the need for discovery later on,
2 whether we can think of them today or very shortly, that we
3 hear about them shortly, so that the O'Brien declaration might
4 be as complete as possible to eliminating what we would view as
5 unnecessary discovery down the road, if that's possible, your
6 Honor.
7 THE COURT: Well, in that connection, Mr. Balin, I
8 have been laboring under the assumption that Mr. O'Brien's
9 declaration and the declaration of the individual for the
10 magazine will cover entirely the acquisition of the documents
11 that are the subject of this motion.
12 MR. BALIN: I'm sorry, Judge; I didn't quite
13 understand. I apologize.
14 THE COURT: The question is whether or not these
15 declarations will fully --
16 MR. BALIN: Yes. We -- I think we intend to, having
17 heard the Court's questions this morning --
19 MR. BALIN: -- we're going to address them, as we've
20 tried to do throughout this.
21 THE COURT: Okay.
22 MR. Balin: And I would second that I believe that I
23 know one of the things your Honor indicated is that, of course
24 the Court itself can, you know, do whatever the Court deems
25 appropriate vis-a-vis investigating the court personnel, and I

78
1 think that may clear it up rather quickly.
2 THE COURT: Well, in that connection, I will say this,
3 for the benefit of the parties, with really only about an hour
4 and a half to work with, I consulted both our Clerk's Office,
5 meaning the Clerk's Office of the District Court and, through
6 them, the Clerk's Office of the Court of Appeals, and while
7 some of the relevant personnel are not here today, and
8 additional research needs to be done, it appears consistent
9 with their understanding that a journalist was present in
10 September in the Court of Appeals Clerk's Office making copies
11 of various documents from the record, and defining "the record"
12 as not merely the record appendix but the record in the case
13 now under appeal in the First Circuit. So, that generalized
14 information is, I guess I can present it as what the
15 rhetoricians call litodes is not inconsistent with what you
16 told me about Mr. O'Brien's role, but we will continue to make
17 inquiry to try to understand more fully what happened from our
18 end, meaning, the second floor of this courthouse, which is
19 where the clerk's office of both the Court of Appeals and the
20 District Court is located. All right. So, Mr. Chatterjee, do
21 you want to speak to the motion here?
22 MR. CHATTERJEE: Yes, your Honor. Do you want me to
23 discuss the discovery issue first?
24 THE COURT: No. I want to deal, first, with the
25 question of whether or not there will be a preliminary

79
1 injunction, and I'll call it a preliminary injunction, because
2 I've had, or the parties have had an opportunity and the
3 putative respondents had the opportunity to speak to the issues
4 here, and my view is that the principal difference between a
5 temporary retraining order and a preliminary injunction is
6 appealability, and I see no reason why my disposition should
7 not be appealable immediately on this.
8 MR. CHATTERJEE: Okay. Thank you, your Honor. So,
9 just so we're framing issues correctly, given the progress that
10 we made this morning --
12 MR. CHATTERJEE: -- so long as we don't follow a kind
13 of slippery slope of private communications, I'm very focused
14 on the excerpts that your Honor asked to explore before the
15 break, which are the pages 216 through 220 of the deposition,
16 the online diary, and the cash flow statement of Facebook.
18 MR. CHATTERJEE: Your Honor, before the break, I gave
19 you a case, DVD Copy Control Association v. Bunner.
21 MR. CHATTERJEE: That case discusses in a fair amount
22 of detail the difference between freedom of expression and a
23 private property right. Now, an online diary is something that
24 is personal property, it's not something that they're
25 commenting about, it is a diary that they've made available on

80
1 the website.
2 THE COURT: Let me shape this a bit for you so you
3 know what you're arguing toward. My view, I guess, is that
4 this case is kind of core journalism. There is something
5 problematic for purposes of definition of trade groups
6 appropriating material or others who are not engaged in
7 journalism appropriating materials and then posting them on the
8 web, and it seems to me that it may fairly be said that a
9 magazine which is engaged in the discussion of timely events
10 without drawing me into some sort of editorial judgment has
11 properly, as an adjunct, the posting of source documents, the
12 relevant source documents.
13 One of the benefits of the web is that it provides,
14 and dangers, is that it provides unfiltered access to core
15 materials and unfiltered opinions, but one who reads magazines
16 frequently says, I'd like to see the underlying document, just
17 as a judge who reads briefs wants to see the underlying cases,
18 and, so, I believe, you can try to talk me out of it, that
19 there is within the scope of the expression that is this
20 article a degree of protection for the underlying documents
21 that doesn't lend itself to property rights analysis, which
22 tends to be somewhat artificial, in any event.
23 MR. CHATTERJEE: Your Honor, let me start with, well,
24 I guess there are two points related to those comments. The
25 first thing I think we have to understand is I'm willing to

81
1 take that, at the moment, that the materials, the document,
2 that this was all obtained from the First Circuit.
3 THE COURT: Right.
4 MR. CHATTERJEE: Presuming it was there, and they
5 obtained it, that information should have been under seal.
6 Now, whether they were responsible or they knew or didn't know,
7 this is something that was under seal and was a protected
8 document.
9 THE COURT: It was and should have remained protected.
10 The question is whether when, and I'll call this core
11 journalism, because I think it is core journalism, gets its
12 hands on it, legally or illegally as a result of negligence or
13 as a result of some improper disclosure, it seems to me that at
14 that point, for purposes of prior restraint, there is not a
15 basis, unless there's something very compelling, for a court to
16 restrain it. Now, that's not to say that the judge or magazine
17 is not subject to ex ante remedies, I mean, ex post remedies,
18 but what it does say is that prior restraint isn't available
19 under those circumstances. To go back to the kind of stylized,
20 formalized law of property, the remedy is damage to your
21 property, and the fact of immediate disclosure is something to
22 be taken into consideration afterwards, not before.
23 MR. CHATTERJEE: I understand your point, your Honor,
24 but there is a competing Constitutional consideration related
25 to access to justice, and as your Honor identified earlier, the

82
1 integrity of the judicial process. General speaking, discovery
2 documents, when we have protective orders in place, are not
3 things that the media are supposed to get ahold of.
4 THE COURT: They aren't, but they did, and the
5 question is, what's the remedy? We're not talking about
6 whether or not at this stage, you know, 02138 didn't come to me
7 and say, Change the protective order, which might tee that
8 particular issue up, but as you know, I've been concerned about
9 the protective order in this case, and I've taken time to deal
10 with that in connection with the motion to dismiss and the
11 motion for summary judgment, because I felt that I could
12 understand it more fully if I understood it in that context,
13 and was and is my intention to deal contemporaneously with the
14 motions to dismiss and for summary judgment and the scope of
15 the protective order. That all having been said, if under at
16 least one treatment of this, this is negligence on the part of
17 the Clerk's Office or Clerk's Offices, their negligence doesn't
18 lead to this very difficult Constitutional remedy against a
19 journalistic editing.
20 MR. CHATTERJEE: Thank you, your Honor. I think that
21 at some point there has to be the competing consideration of
22 the Court's issues. I understand your Honor's point on that.
23 The second point I was going to raise is the Bartnicki case,
24 and this is, again, in the DVD case that I provided your Honor.

83
1 MR. CHATTERJEE: It says the United States Supreme
2 Court "expressly declined to extend Bartnicki to 'disclosures
3 of trade secrets or domestic gossip or other information of
4 purely private concern.'" These documents, again, they are not
5 anything that is written by the magazine. These are documents
6 that were created and pre-existed any public-figure issue
7 anyone could allege, and they are the property of my clients,
8 they don't belong in the public, and they shouldn't be, and it
9 is not the type of thing that a prior restraint applies to.
10 Now, your Honor did raise a point about does a First
11 Amendment inquiry attach and how does it attach. I read
12 Bartnicki and the case of ZYPREXA, the Procter & Gamble case,
13 the distinction between the two in ZYPREXA, as well as the DVD
14 Copyright Control Association case as basically saying there
15 are First Amendment issues implicated in all of those
16 situations, however, when it's content that is being written by
17 somebody, commentary in the press, articles and things like
18 that, that's entitled to a different scope of First Amendment
19 protection than merely republishing source code or republishing
20 a document that was produced in discovery.
21 THE COURT: That may be so if it's either/or. I'm not
22 prepared to accept that proposition, but I distinguish that
23 proposition from the circumstance in which it is both, that is,
24 the magazine offers up its reporter's view, and for the benefit
25 of those who, as one of our First Circuit judges frequently

84
1 says, "has a desire for greater information," provides the
2 underlying source material, and one of the things that that
3 does is it creates a certain increased transparency to the
4 journalism and opportunity for individuals, readers to make
5 their own judgments about it. Now, obviously, that has to be
6 measured against certain things, but it seems to me that, when
7 they are conjoined, we've got a somewhat different set of
8 circumstances than a trade organization or similar entity
9 simply posting what you call property, and I'll accept that
10 that's a reasonable label up on the internet.
11 MR. CHATTERJEE: Your Honor, I guess I don't draw that
12 distinction. That is the type of issue that's addressed by
13 these cases that draw the distinction. Someone's talking about
14 source code and reverse engineering and then they're posting
15 the same source code, and it's about public commentary and
16 public dialogue that's going on.
17 THE COURT: Well, everything is, I suppose, and that's
18 the problem, and I want to emphasize one thing. I do not
19 consider it a slippery-slope argument or waiver on your part to
20 focus on those things that are immediate and irreparable,
21 because that's the standard that we're dealing with, but I do
22 believe that I must focus on those things that are sufficiently
23 compelling for purposes of interlocutory injunctive relief to
24 justify a prior restraint, and the mere label of something as
25 property or of commercial interest or capable of eliciting

85
1 private titillation is not enough. That's why I focused on
2 particular aspects of the documents that were presented -- that
3 are presented here and pressed on the question of the exercise
4 in editorial judgment at least with respect to one.
5 MR. CHATTERJEE: Well, certainly, your Honor, I agree
6 with you the redaction of the names invokes a very high degree
7 of protection and concern, particularly for third parties; I
8 completely agree with you on that, your Honor. I don't think
9 with respect to 216 through 220 merely getting rid of the name
10 at this point is enough. I think that there's a lot of facts
11 around that that also need to be redacted.
12 With respect to the online journal, these are the
13 private thoughts of a person who's in college that's recording
14 things in their diary. I just, I have a very hard time
15 understanding how that invokes a public interest. That is
16 exactly the type of exception that Bartnicki said was not
17 within the scope of a prior restraint document.
18 THE COURT: Well, but we refer to someone who is
19 merely in college, but that's the whole point about this
20 underlying litigation. Yes, they were, and that's the
21 important, one important dimension to it, and, so, talking
22 about what Stephen Dedalus like was passing through Mr.
23 Zuckerberg's mind while he was also engaged in this development
24 activity seems to me to be suffusing the article itself.
25 MR. CHATTERJEE: But that document itself is not a

86
1 form of expression, your Honor, it's not a form of expression
2 by the editors of the magazine.
3 THE COURT: Well, why isn't the selection of documents
4 to post on the web in connection with this article, that is,
5 primary-source materials, an editorial choice itself?
6 MR. CHATTERJEE: Your Honor, I don't think that that
7 decision is an editorial choice itself. It falls, again, right
8 within the ZYPREXA and the DVD Copyright Control Association
9 exceptions when they're talking about these separate privacy
10 rights. There is one other point that's, I think, important
11 here, within the context of the deposition testimony, and that
12 deposition testimony on 216 to 220, if you read that you will
13 see repeated and expressed comments about designating the
14 information as falling under a protective order. It's
15 impossible to read that testimony and to not think that it
16 isn't protected information, whether they got it inadvertently
17 or through some improper means.
18 THE COURT: Well, but that the parties wanted to keep
19 it protected is clear.
20 MR. CHATTERJEE: But they had notice of the protective
21 order at that point.
22 THE COURT: Just a moment, just a moment. The
23 question that you're raising is whether or not someone who has
24 notice of a protective order is bound by it, and the answer is
25 no, as a legal matter. That is to say, could I enforce through

87
1 the protective order itself, its mechanism, that order on
2 strangers to the litigation, those who are not signing that
3 order? I have some considerable difficulty thinking I could
4 under these circumstances.
5 Now, this gets to a more fundamental issue, which I
6 should, I think, dispose of, that Ms. Ritvo and Mr. Balin
7 alluded to, do I have the jurisdiction over this? I think the
8 answer's pretty clear, I do, but that jurisdiction is not
9 flowing from the protective order, it flows from the All Writs
10 Act, 28 U.S.C. § 1651, to ensure that all of my orders are
11 properly read, but that just begins the discussion. Yes, they
12 were aware, we will say they were aware.
13 On the other hand, a defense, I suppose, is that the
14 Court disclosed, under the present understanding of the facts
15 or, at least, some of the facts, the Court itself disclosed
16 these documents. If they were subject of the protective order,
17 they shouldn't have seen them, and the Court shouldn't have
18 given them to them, but once that's happened, one can hardly
19 say that there's been that level of intent and willfulness that
20 might fortify your case.
21 MR. CHATTERJEE: It may or may not, and there's no way
22 for us to know at this point, your Honor.
23 THE COURT: Right. Well, this point is when I'm
24 ruling on this issue, and I say it as a preliminary injunction,
25 because I view it as not the final question, final resolution,

88
1 but a resolution that, if the parties are dissatisfied with it,
2 they can take to the Court of Appeals.
3 MR. CHATTERJEE: I understand, your Honor. I
4 understand your point, your Honor. I do think that this
5 section of the deposition and the online journal, in
6 particular, the cash flow statement we've already talked about
7 and the trade secret nature of it, if you want evidentiary
8 submissions as far as declarations about the confidentiality
9 concerns of the people, we didn't have time to put those
10 together. If that will have an impact, your Honor, we're happy
11 to arrange to provide those.
13 MR. CHATTERJEE: From my reading of these cases, this
14 does invoke the property interest that makes these supporting
15 documents somewhat separate from the actual commentary. You
16 are right to say it has some layer of First Amendment
17 protection, but under Bartnicki and the case law, it appears to
18 me that that's a substantially reduced one from the actual
19 commentary and articles themselves.
20 THE COURT: All right. Do any of the other parties
21 want to be heard? Mr. Balin, do you want to persuade me that
22 my initial thoughts are otherwise?
23 MR. BALIN: No, I don't, your Honor; it's late in the
24 day.
25 THE COURT: All right. So, let me rule on this

89
1 orally, in an effort to resolve this promptly. I'm, of course,
2 guided by the Providence Journal litigation in the First
3 Circuit, which is the leading case law within this circuit
4 itself. I'm guided not merely by the substantive result but
5 also by the procedural demands. They are such as to promptly,
6 require me promptly to convene a hearing such as we've had or
7 hearings such as we've had today to deal with what is at the
8 heart of the First Amendment, at least as it has been
9 construed.
10 Now, I said during the course of the argument that
11 prior restraint law is not altogether coherent. That's not
12 some insight of my own but one that's shared by counsel who
13 argued before the Supreme Court perhaps the most important
14 prior restraint case of the last century, Alexander Bickel, who
15 argued on behalf of The New York Times in Times - Pentagon
16 Papers litigation. Whenever I'm confronted with a case such as
17 this, I have the occasion to recur to Bickel's posthumous book,
18 The Morality of Consent, the third chapter of which is a
19 discussion of the First Amendment and, particularly, the
20 questions of prior restraint and civil disobedience, and Bickel
21 here offers the observation, and I'll quote, that "The First
22 Amendment is no coherent theory that points our way to
23 unambiguous decisions but a series of compromises and
24 accommodations confronting us again and again with hard
25 questions to which there is no certain answer." It also, in a

90
1 I think quite thoughtful treatment, ultimately reaches the
2 conclusion that, and I'll quote again, "The upshot, happily, is
3 that a whole series of defensive procedural entrenchments lie
4 between the First Amendment and interests adverse to it. Hence
5 the direct, ultimate confrontation is rare and when it does
6 occur, limited and manageable. We thus contrive to avoid most
7 judgments that we do not know how to make."
8 Now, we are here presented with what I think is the
9 obligation to provide a tolerable accommodation of
10 incommensurables. On the one side is First Amendment demands.
11 Those are expressed here by the desire of the magazine to
12 provide a full discussion, from its perspective or that of its
13 reporter, regarding a topic of some considerable interest, if
14 one is to assess it by reference to other publicity that has
15 associated itself with the principles in this case, the case
16 itself and the larger question of the control of intellectual
17 property.
18 I have, in my observations to Mr. Chatterjee in the
19 course of the discussion, expressed my view, which is that this
20 form of journalism, which I'll define as publication in the
21 conventional sense of an article accompanied by opportunities
22 to review the primary-source material, is in the larger
23 traditions of the First Amendment, in fact, is perhaps a more
24 democratic form of expression in the sense that it permits
25 someone to read the article and then read the source materials,
91
1 at least some of them, and make that person's own judgment
2 about the way in which the reporter and the magazine have
3 presented the case, but I said this is an accomodation of
4 incommensurables, because we have on the other side what we can
5 call property interest as a gross tag, but really is a series
6 of concerns about competing privacy rights. One is a
7 commercial privacy right, the opportunity to protect
8 commercially important information, another is fundamental
9 personal privacy, that is, the right of someone to type into
10 their diary their secret thoughts without having to worry that
11 someone is going to have a key to the diary. So, I don't, for
12 a moment, discount the importance of the issues that are raised
13 by this motion but wish to emphasize that here there is a
14 tradition in Anglo Saxon jurisprudence against prior
15 restraints, not against subsequent forms of remedy but against
16 prior restraints, except in the most compelling circumstances.
17 It's good to recall what the Providence Journal was
18 about. It was about the disclosure of those materials that are
19 kept closest to the breast of the court, wire tap materials.
20 It's difficult to consider any more secret materials, both in
21 terms of protecting investigations but also in terms of
22 protecting the reputations of those who are overheard or
23 referenced in overhearings, yet there, the First Circuit, in a
24 fashion that was picked up by the Sixth Circuit in Procter &
25 Gamble, said that, as a substantive matter, there could be no

92
1 private prior restraint, and, in fact, the Court was chastised
2 for its failure more promptly to convene and resolve the issue
3 in the presence of all the interested parties. So, that's the
4 broad overview of what the dispute is about.
5 I then turn to the traditional standards for
6 preliminary injunction, having in mind, as I said to Mr.
7 Chatterjee in the course of the discussion, that I do believe I
8 have jurisdiction here, even over a non-party like 02138
9 pursuant to the All Writs Act, which permits the Court to
10 consider whether or not there has been incidental violation of
11 its underlying orders by those who are strangers to the
12 litigation.
13 THE COURT: So, with that in mind, I turn, as I've
14 said, to the conventional standards for preliminary injunction,
15 having in mind that they take on a special aura in the context
16 of efforts at prior restraint. First, the likelihood of
17 success on the merits. Now, what am I talking about with
18 success of the merits? Success of the merits means, as I
19 understand it, that the moving party is successful in
20 convincing me that I should restrain the exercise of
21 expression, and I mean that in the broad sort of way, to
22 include even posting a competitors's commercial material.
23 I'm dealing with this on an interlocutory basis,
24 because, as I've indicated to the parties, we've had the
25 opportunity, provisional, of course, for an adversary hearing,

93
1 the receipt of evidence tendered not in a full evidentiary
2 manner but enough to provide a record, and I do not mean to tap
3 each drum in the injunctive percussion session by first dealing
4 with a temporary restraining order, then with a preliminary
5 injunction, because we've reached the point where I think I can
6 act on what I will treat as a preliminary injunction, with a
7 view toward providing the unsuccessful party the opportunity to
8 obtain interlocutory review, if it seems provident at this
9 time.
10 I find no likelihood of success on the merits for the
11 moving party, Thefacebook here. The reason is that the
12 documents themselves seem to me to be inextricably intertwined
13 in the expressive activities of 02138, a party that is not
14 subject directly to my protective order. Moreover, what 02138
15 undertook was, it seems to me, core First Amendment activity,
16 to comment upon matters of public interest. Moreover, the
17 appending of the source documents is, it seems to me,
18 fundamentally beneficial to expression, having in mind, of
19 course, that I must consider whether or not it's also harmful
20 or violative of some other set of interests. My own view, as
21 I've expressed it, is that this is a salutary development in
22 journalism generally, one that one can treat as providing for a
23 more democratic, if unruly, form of expressive activity.
24 I have to consider, of course, the question of the
25 balance of hardships between the non-moving party and the party

94
1 that is defending in the sense that it is arguing against the
2 issuance of an injunction. With respect to the moving party, I
3 do not mean in any way to diminish the force of what has been
4 argued here. We have commercial proprietary information, which
5 a entity that is now and was at the time of its creation of
6 that information private, and while, as a matter of public
7 policy for certain kinds of commercial activity there are
8 duties of transparency, people can choose to be private
9 entities, and that choice was made here. We have personal
10 diary entries, which, as I've said, is as personal as it gets.
11 We have characterizations of the activities of third parties,
12 who, at the minimum, will be held up to shame and disrepute in
13 the course of deposition testimony that the parties themselves
14 to the litigation sought to keep confidential, and we have
15 submissions in connection with what's meant to be a private or,
16 at least, confidential form of disciplinary process in a
17 college, where, despite the fact that young people today tend
18 to mature in certain aspects of their life more quickly than
19 they did in the past has always been viewed as a cauldron for
20 mistakes or, as our president put it, "The likelihood that
21 someone who is young and foolish did things when he was young
22 and foolish." Those are not inconsequential matters, but
23 stated at that level of generality, I don't think that they're
24 sufficient to overcome the compelling interests of the
25 aspiration of First Amendment expression.

95
1 I have focused, as best I can, on the most salient of
2 the interests. As a consequence, I have not viewed Exhibit 5,
3 which is the communication between Mr. Zuckerberg and someone
4 who is involved in some fashion, not altogether clear to me, in
5 the disciplinary proceedings, but, essentially, while
6 confidential, seems to me to be Mr. Zuckerberg's exculpatory
7 statement with regard to activities that were under
8 consideration.
9 I turn to the deposition, and while here I might, if I
10 had editorial judgment that was relevant, be more likely to
11 constrict the materials disclosed, I acknowledge that a person
12 who happened to be associated with someone who is identified as
13 a public figure, anyway, will have her name excised, and that
14 particular name seemed to me to be at the zenith of concern,
15 and that has been, at least on the representation of 02138,
16 removed from the case.
17 Now, the other individual is subject to
18 characterization and, as I said, might be held up to shame and
19 disrepute. To the degree, for example, that the law of
20 defamation applies under these circumstances without privilege,
21 that person may have some claim over against 02138. What Mr.
22 Zuckerberg has is a source of embarrassment for having offered
23 his views, but it wasn't a voluntary offer, it was one that was
24 enforced by the fact that he was subject to the obligation to
25 testify at a deposition. In any event, I do not find here the

96
1 kind of salient interest that would justify the exercise of a
2 prior restraint.
3 I turn to the statement of cash flows that has been
4 identified as commercial and proprietary. It is. It is also,
5 in this fast-moving area, antiquated, ancient. So much has
6 happened since this that one can't say that this is anything
7 other than a bronze shoe in the collection of the baby's
8 development, certainly not something that has immediate
9 commercial use.
10 I turn, finally, to Exhibit 8, which is the online
11 diary, and here I've expressed my views in a general sort of
12 way that this is a highly personal matter, and I do not find
13 that the fact that this has been reproduced in some fashion
14 already on the internet means anything other than it has a
15 certain salacious quality to it. There hasn't been presented
16 to me information that suggests that this was posted by Mr.
17 Zuckerberg before 02138 got its hands on it.
18 MR. HORNICK: Your Honor, if I might interrupt, Mr.
19 Zuckerberg did exactly that.
20 THE COURT: Well, the state of the record is not clear
21 enough for me to say that, and if that were the case, of course
22 that would further diminish the claim to have it subject to a
23 prior restraint.
24 MR. HORNICK: Your Honor, if you're interested, I can
25 read you a quote from The Harvard Crimson.

97
1 THE COURT: As much as I value the The Harvard Crimson
2 it's not the first place that I look to for matters that will
3 be resolved without reference to the rules against hearsay,
4 and, so, thank you, I'm interested in everything, but it wasn't
5 presented to me before I started to rule, and, in any event, is
6 a matter that, even if true, is not going to change the ruling
7 that I make.
8 Turning now, more specifically, to the matter that I
9 raised with Mr. Balin, and I encourage him to raise again with
10 his client, the reference to, the crude and demeaning reference
11 to a woman in the very first line, I see no reason, and this is
12 the exercise of my editorial judgment, which is not
13 determinative in any way, but, perhaps, might be found
14 persuasive on reflection, to include that name. This seems to
15 me to be an act of willfulness in service of a principle, the
16 First Amendment, which doesn't need willfulness to be advanced.
17 I'm reminded, now that I think about it, that I think
18 it is in the Loeb Classics, or at least as reported by Walter
19 Lippman in Loeb Classics, that Thucydides was thought very
20 highly of as someone who once said that "Men most respect the
21 power of restraint," and it seems to me that, in that vein, a
22 magazine from Harvard might think again about using some
23 restraint with respect to the use of this woman's name, but
24 even faced with what I consider to be a foolish, willful and
25 mean-spirited exercise of editorial judgment, I can't say that

98
1 I have been presented with grounds to assert a prior restraint
2 order.
3 Now, in dealing with the harms raised by the moving
4 party, I've necessarily and in a mirror-like fashion referred
5 to the harms that an injunction would inflict upon the
6 addressee of this motion. The short of it is that I do believe
7 under these circumstances there hasn't been shown to be a
8 justification for inflicting the harm against the First
9 Amendment which a prior restraint would impose.
10 I'm finally obligated to consider the public interest,
11 and to the degree that it's not fully composed in the prior
12 discussion that I've had, it seems to me that the public
13 interest does weigh in favor of more generally disclosure and
14 transparency in litigation matters, that the thrust of ZYPREXA,
15 perhaps the most recent of the cases dealing in this area, a
16 kind of omnium-gatherum by Judge Weinstein on these issues,
17 suggests rather strongly that there are distinctions between
18 courts enforcing their own orders and the ability of others
19 outside the Court order to take action that, if done by someone
20 who is subject to the court order, would be improper and the
21 subject of contempt. That, of course, is very untidy, that is,
22 if you're smart enough or lucky enough or sneaky enough to
23 evade a court order, you're in a better position, but that's
24 where we are. The exercise of journalism frequently involves
25 all of those activities, luck, sneakiness, in the service of

99
1 presenting to the public generally a report of matters of
2 public interest, and, so, it seems to me that it would be a
3 direct and unacceptable derogation from the public interest to
4 issue a prior restraint to, in some fashion, restrict the
5 disclosure of these documents in this form at this time.
6 Now, I have considered, you know, what I'll call
7 flotsam and jetsam of practicality. This is related to the
8 reference to the cat being out of the bag or the kind of
9 resigned quality in at least one of the DVD cases of not trying
10 to reach other websites. If a prior restraint were
11 appropriate, then the Court should take whatever action it can
12 to deal with that. My decision is not based on practicality or
13 resignation but, rather, on the principled analysis of what the
14 First Amendment means in this context for this case.
15 So, for all of those reasons, I'm denying what I
16 characterize as a preliminary injunction, and these
17 observations, obviously, are subject to being tidied up, if it
18 becomes necessary and appropriate for me to do so, but I mean
19 to provide the parties who have, quite remarkably, responded
20 promptly to the occasion, risen to the occasion in their
21 arguments and briefing and are entitled to a prompt response
22 from me. Are there any further findings or conclusions that
23 the parties would have me make?
24 MR. BALIN: Your Honor, this is Robert Balin. Thank
25 you for giving us your time today, and I just wanted to note we
100
1 did have a request in our motion to, I suppose, apropos to the
2 Court's comments about the need for transparency and disclosure
3 of litigation, we have a request to unseal the papers that were
4 filed in connection with this important argument on an
5 important issue, and I would just, I guess, orally make that
6 motion again to unseal the papers filed by, and your decision,
7 of course, your Honor, filed by the parties, subject to
8 redaction of the name on Exhibit 6, page 215, line 9.
9 THE COURT: Well, let me say two things about that.
10 One, this has been an open hearing, it's not been closed, the
11 transcript is or, at least, the stenographer's notes are
12 available to be reduced to a transcript if anyone seeks to do
13 that, and I have heard nothing that would suggest to me that
14 the transcript itself should be redacted. With respect to the
15 issue of unsealing the submissions, I'll simply look to the
16 parties to respond relatively promptly to that. I think that a
17 response by, say, next Friday, will be sufficient with respect
18 to particulars. My own view, very quickly, is that a good deal
19 of this can be disclosed, but I do not mean, because, as I said
20 during the course of my discussion, I am presently considering
21 the disclosure of or relaxation of the protective order with
22 respect to matters. I don't mean to pretermit that full
23 discussion, full consideration by acting precipitously on the
24 motion made by or request, I should say, made by 02138.
25 Nevertheless, I do want a response here.

101
1 My view, I think, is that the basic pleadings or
2 memorandum ought to be disclosed, and I think that the
3 affidavit in the protective orders can properly be disclosed as
4 well, but I think what I would ask is that the parties provide
5 me with a proposal with respect to that. Ms. Ritvo.
6 MS. RITVO: Your Honor, as to the declaration of Mr.
7 O'Brien, need that be filed under seal?
8 THE COURT: I don't think so --
9 MS.RITVA: Okay.
10 THE COURT: -- unless he makes reference to the
11 substance of a confidential document or a matter that is under
12 seal. To the degree that he simply says, I made a copy of the
13 document that's identified as Exhibit 5, without identifying
14 the substance of it, then I don't think it needs to be under
15 seal here.
16 MR. CHATTERJEE: Your Honor, I guess there is one
17 housekeeping -- thank you for your time, by the way, and I
18 appreciate your time on making the ruling.
20 MR. CHATTERJEE: I guess the one remaining issue in my
21 mind is the 02183 magazine has identified that they do --
22 THE COURT: 02183 or 38?
23 MR. CHATTERJEE: 38, I'm sorry.
24 THE COURT: I've worked so hard at trying to get it
25 right, and I hoped that I hadn't been getting it wrong all

102
1 along.
2 MR. CHATTERJEE: I'm sure I have been, because I keep
3 getting it wrong, your Honor, on the magazine name, but they've
4 identified that they do have a number of other documents, and
5 they may or may not choose to use them. I submit, your Honor,
6 that before that it is not -- no longer a prior restraint issue
7 as to those documents, if they intend to publish those on the
8 web, and I think we're entitled to know what they are so we can
9 seek court protection, if necessary, before they try and put
10 any of that material on the web.
11 THE COURT: I think my answer to that is, to the
12 degree that that's an effort to expand the motion that's been
13 requested, I'm going to deny it, because it works indirectly as
14 to the prior restraint here, but I do believe that Mr. Balin,
15 on behalf of his clients, has been forthcoming in response to
16 the various issues, but I believe that they're aware of the
17 various issues, and they're going to be providing us with some,
18 what I will call voluntary discovery with respect to the
19 issues. I, at the risk of sounding like the person that
20 Professor Freund used to say, "The lawyer most feared by judges
21 is the lawyer who knew how to spell banana but didn't know when
22 to stop," I urge Mr. Balin to talk again to his client about
23 the name that they have apparently chosen to continue to
24 include on the web, and I will ask him to report to us whether
25 the client, after thoughtful review, has a different view than

103
1 has been expected here, but as to telling us in advance about
2 the intention to post something on the web, I am simply not
3 prepared to do that.
4 MR. CHATTERJEE: Oh, I'm sorry, your Honor, if I was
5 confusing, I didn't mean to suggest that. What I just want to
6 know is what documents do they have, so if we want to seek
7 protection, we can get that vetted now.
8 THE COURT: Well, I guess I'm not going to do
9 preliminary -- if there is not a immediate need to deal with
10 it, then I'm not going to deal with a list of things that are
11 subject to the protective order. I will say this, that, to the
12 degree it becomes necessary to think about this for the
13 discovery, and now we're on to the discovery or I will shortly
14 be on to the discovery aspect of this, I would consider whether
15 or not to require some disclosure of documents that they have
16 seen to be confidential.
17 MR. CHATTERJEE: I appreciate that, your Honor. I was
18 actually collapsing the two issues, and I apologize for that.
19 THE COURT: All right. So, now let's move on to the
20 question of discovery, which, obviously, is further developed
21 by Mr. Balin's report and will be further developed by whatever
22 the affidavits are here, but doesn't Mr. Balin's report of what
23 is likely to be in the affidavit provide an explanation for all
24 of the disclosure that is inconsistent with, or not
25 inconsistent, but provides an explanation for all of the

104
1 disclosure apart from disclosure from the parties?
2 MR. CHATTERJEE: It could very well, your Honor.
3 THE COURT: Okay. Then, what I think I would like to
4 do, I know I asked the parties to talk about a discovery
5 schedule, but in light of that, I think I would like the
6 parties to review the affidavit or declarations that are
7 submitted and then make a proposal, if a proposal is necessary,
8 for further discovery, on December -- on the next Friday, which
9 is December 7, is it? I don't mean to pick D-Day as the
10 occasion, or I should say Pearl Harbor Day as the occasion for
11 this, but that's where it is in the calendar, and that will
12 give the parties an opportunity to reflect on whether or not
13 there is an adequate, independent grounds or source for all of
14 this material for Mr. O'Brien in his activities.
15 MR. CHATTERJEE: Thank you, your Honor, and, your
16 Honor, if I may ask, if there is a problem in the First Circuit
17 about confidential documents being available --
18 THE COURT: You bet there is an intention on the part
19 of me and our Clerk's Office to get to the bottom of it, and
20 that will be part of the process. I don't know what form, if
21 any, a report would take to you, except to say that there is
22 nothing inconsistent with Mr. O'Brien's anticipated declaration
23 that has been learned to date about it, and I, because I'm
24 particularly interested in it, and the clerks will be getting
25 to the bottom of it.

105
1 MR. CHATTERJEE: I appreciate that, your Honor,
2 because it is, I think it is important for our clients to have
3 confidence that disclosing things to the Court system under
4 seal, that they will remain under seal.
5 THE COURT: Absolutely. It's not just your client,
6 it's every client, and while I have, as I probably tried to
7 communicate, an austere view of what needs to be subject to a
8 protective order, once it is, and so long as it is, the Court
9 has an obligation to enforce it itself, an independent
10 obligation to enforce it itself. That, in fact, is, you know,
11 part of the problematic dimension to Providence Journal, I
12 suppose, is that it may be read, at least by some, although not
13 fully developed, to collide with Shuttlesworth in permitting
14 certain parties to evade their responsibilities, but the Court
15 has an independent responsibility to try to get to the bottom
16 of it, and if there is something that is inconsistent, as an
17 evidentiary matter, with what Mr. O'Brien has to say, I'll
18 bring that to your attention, but I've not yet decided what
19 kind of disclosure, if any, needs to be taken. I view it as an
20 administrative matter in this setting, although, obviously, a
21 matter of some real and justifiable concern by the parties.
22 MR. CHATTERJEE: Thank you, your Honor, and just to go
23 back to the earlier point that I had raised earlier, but it's
24 probably more appropriate for this discussion, in addition to
25 those declarations, we would like the discovery of what

106
1 documents they do have, because if they did get hold of
2 documents that we are concerned about as being confidential, we
3 would like to know that so we can seek Court ruling for --
4 THE COURT: Well, I guess, Mr. Balin, you've heard the
5 request; you'll consider whether or not to include an answer in
6 the declaration.
7 MR. BALIN: Right, your Honor.
8 THE COURT: It may save everybody a good deal of time
9 if you answer it. I'm not sure that you, now having tested the
10 waters, will consider yourself concerned about, in some
11 fashion, giving up your First Amendment rights, and it may
12 occur to you that this is just a way of avoiding further
13 litigation activity, but I leave that to you, and we'll go from
14 there to see how we're going to deal with it, but I am not now
15 ordering, specifically ordering that.
16 MR. BALIN: Thank you, your Honor.
17 THE COURT: Okay.
18 MR. CHATTERJEE: Thank you, your Honor, and just as a
19 final matter, going back to the administrative check that your
20 Honor's checking.
22 MR. CHATTERJEE: Obviously, the fact that these
23 materials were available that came up in a Wall Street Journal
24 article this morning, for example, including the under-seal
25 documents, it's now out there. If there's anything that your

107
1 Honor can do to make sure that those informations --
2 THE COURT: Well, I think the Clerk's Office has a
3 heightened concern about documents in this case, both of those
4 clerk's offices do, and my concern is to deal with it properly
5 as an administrative matter, rather than a finger-pointing
6 exercise.
7 MR. CHATTERJEE: And I agree with you, your Honor. I
8 just want to make sure that my client's interests are protected
9 as best as possible.
10 THE COURT: All right. I understand that, and I think
11 we'll be doing our best to deal with that, and if the parties
12 have further requests, I'm a member of the Clean Plate Club;
13 somebody serves it up, sooner or later I'll consume it, digest
14 it and respond. Now, is there anything else from the other
15 parties here?
16 MR. BALIN: No, your Honor.
17 THE COURT: Okay. All right. Then, we'll stand in
18 recess. Thank you.
19 (Hearing concluded at 5:10 p.m.)
20
21
22
23
24
25
108
1 C E R T I F I C A T E
4 I, Brenda K. Hancock, RMR, CRR and Official Reporter
5 of the United States District Court, do hereby certify that the
6 foregoing transcript, from Page 1 to Page 109, constitutes, to
7 the best of my skill and ability, a true and accurate
8 transcription of my stenotype notes taken in the matter of
9 ConnectU v. Facebook, 1:07-CV-10593-DPW and 1:04-CV-11923-DPW.
10
11
12
13
14
15 /s/ Brenda K. Hancock
16 Brenda K. Hancock, RMR, CRR
17 Official Court Reporter
18
19
20
21
22
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25
1
$ 1:07-CV-10593-DPW 1:24 12:17, 108:7 105:20, 106:19,

[2] - 1:5, 108:9 6:00 [1] - 14:22 accurately [1] - 75:4 107:5
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' accusations [3] - advance [2] - 55:3,
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02138 [30] - 4:1, 8:7, 86:12 32:2, 36:16, 52:18, affiliates [1] - 61:6
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47:15, 51:8, 61:6, 901 [1] - 2:11
28 [1] - 87:10 94:7, 106:13 12:19, 16:20, 29:20,
61:16, 61:21, 65:16, 94025 [3] - 2:24, 3:12,
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74:5, 76:17, 82:6, 3:17
53:17, 65:15, 88:15, agree [6] - 18:14,
92:8, 93:13, 93:14, 94104 [1] - 3:9
95:15, 95:21, 96:17,
3 9:33 [1] - 58:9
88:18 61:9, 73:15, 85:5,
Ad [1] - 20:7 85:8, 107:7
100:24 3 [1] - 8:21 Adam [1] - 2:13 agreement [2] - 33:5,
02183 [2] - 101:21, 30 [1] - 1:18 A add [5] - 15:13, 35:18, 56:20
101:22 31 [1] - 64:20 39:19, 59:4, 63:16 ahead [6] - 6:20,
02210 [2] - 1:17, 1:23 ability [2] - 98:18,
333 [1] - 3:9 addition [5] - 7:13, 16:21, 34:13, 49:20,
04-11923 [1] - 5:4 108:7
38 [2] - 101:22, 101:23 9:4, 45:5, 50:4, 61:25, 64:19
07-10593 [1] - 5:3 able [6] - 5:9, 14:5,
3:30 [6] - 56:15, 61:13, 105:24 ahold [1] - 82:3
23:9, 42:22, 58:17,
61:14, 64:4, 64:6, additional [9] - 7:22, al [1] - 5:4
1 66:17
65:25 38:18, 39:5, 39:9, Alexander [1] - 89:14
absolutely [1] - 26:6
3:45 [1] - 66:4 39:17, 62:13, 67:24, allege [1] - 83:7
1 [4] - 1:16, 8:19, 28:4, Absolutely [3] - 63:15,
75:15, 78:8 allow [1] - 67:6
108:6 72:12, 105:5
10 [4] - 3:14, 22:10,
4 absorb [1] - 49:21
additions [1] - 64:3 allowed [2] - 35:9,
address [8] - 17:23, 47:17
57:14, 68:22 4 [3] - 6:13, 6:21, 28:4 accept [2] - 83:22,
30:3, 46:22, 50:2, alluded [1] - 87:7
1000 [2] - 2:23, 3:17 48512 [1] - 65:2 84:9
65:20, 76:5, 76:6, almost [1] - 54:9
10010 [1] - 2:16 4th [1] - 71:6 accepted [1] - 8:18
77:19 altogether [3] - 11:5,
10019-6708 [1] - 4:8 access [3] - 40:20,
addressed [2] - 76:25, 89:11, 95:4
109 [1] - 108:6 80:14, 81:25
5 accessible [1] - 14:11
84:12 AMBER [1] - 67:11
10th [6] - 10:6, 56:22,
addressee [1] - 98:6 Amber [3] - 4:6, 67:3,
57:5, 57:16, 57:20, 5 [7] - 17:13, 17:15, accommodation [1] -
adds [1] - 55:3 67:11
58:9 19:4, 19:10, 19:12, 90:9
adequate [1] - 104:13 ameliorated [1] -
11 [1] - 7:2 95:2, 101:13 accommodations [1]
adjudication [1] - 24:16
12:35 [1] - 1:18 51 [1] - 2:15 - 89:24
41:16 amended [11] - 9:25,
1633 [1] - 4:7 5:10 [1] - 107:19 accomodation [1] -
adjudicatory [1] - 12:5, 12:25, 13:1,
1651 [1] - 87:10 91:3
41:15 13:4, 13:17, 22:24,
17 [1] - 34:14 6 accompanied [1] -
adjunct [1] - 80:11 23:5, 34:25, 44:15,
176 [1] - 2:6 90:21
adjusting [1] - 34:3 58:4
177 [3] - 35:3, 35:4, 6 [7] - 17:13, 17:15, accompany [1] - 74:8
Administrative [6] - Amendment [18] -
35:5 19:7, 20:23, 23:14, accompanying [1] -
19:11, 19:23, 20:12, 5:25, 65:7, 83:11,
1:04-CV-11923-DPW 72:10, 100:8 72:6
21:25, 48:5 83:15, 83:18, 88:16,
[2] - 1:7, 108:9 617)439-3214 [1] - accurate [3] - 10:9,
administrative [3] - 89:8, 89:19, 89:22,
2
90:4, 90:10, 90:23, 42:15 artificial [1] - 80:22 82:23, 83:2, 83:12,
B
93:15, 94:25, 97:16, appending [1] - 93:17 ascertain [1] - 14:25 85:16, 88:17
98:9, 99:14, 106:11 appendix [6] - 7:10, aspect [4] - 10:19, baby's [1] - 96:7 based [1] - 99:12
amount [2] - 56:11, 15:8, 15:15, 15:20, 11:6, 36:8, 103:14 back-and-forth [1] - basic [1] - 101:1
79:21 41:8, 78:12 aspects [4] - 11:3, 55:9 basis [3] - 5:15, 81:15,
analysis [6] - 8:19, application [12] - 60:1, 85:2, 94:18 bad [1] - 74:15 92:23
10:16, 33:14, 65:8, 7:23, 8:16, 49:11, aspiration [1] - 94:25 bag [3] - 28:19, 40:8, Batten [1] - 3:2
80:21, 99:13 49:23, 50:6, 50:10, assert [1] - 98:1 99:8 Bauer [3] - 3:1, 3:19,
ancient [1] - 96:5 50:16, 50:18, 63:11, assess [1] - 90:14 bags [1] - 24:4 64:6
ANDREW [1] - 1:7 63:20, 66:21, 67:15 assessment [1] - balance [1] - 93:25 Bea [1] - 2:14
Andrew [1] - 2:20 applies [2] - 83:9, 41:10 balancing [2] - 26:23, became [1] - 16:25
Anglo [1] - 91:14 95:20 assistance [1] - 40:19 26:24 become [1] - 39:12
annotation [1] - 51:17 appreciate [8] - 42:11, associated [7] - 32:4, Balin [43] - 4:5, 14:17, becomes [2] - 99:18,
annotations [6] - 48:5, 46:7, 50:14, 50:15, 38:24, 40:1, 46:23, 15:11, 17:17, 24:8, 103:12
48:21, 50:5, 50:7, 58:7, 101:18, 54:16, 90:15, 95:12 24:19, 24:23, 25:2, becoming [1] - 27:18
50:10 103:17, 105:1 Association [4] - 26:4, 28:12, 30:7, BEFORE [1] - 1:11
answer [13] - 12:18, appreciation [1] - 64:12, 79:19, 83:14, 36:9, 36:22, 38:21, beginning [3] - 15:12,
20:1, 25:10, 28:16, 74:25 86:8 39:18, 40:5, 40:6, 44:4, 49:17
53:9, 58:17, 58:19, approach [3] - 44:3, Associations [1] - 53:19, 53:22, 56:1, begins [2] - 33:14,
75:18, 86:24, 89:25, 65:5, 65:23 65:1 59:11, 63:10, 63:12, 87:11
102:11, 106:5, 106:9 approaches [1] - assume [9] - 28:17, 64:16, 66:7, 66:9, behalf [4] - 6:19,
answer's [1] - 87:8 18:24 30:25, 37:12, 39:14, 66:15, 67:3, 69:25, 76:17, 89:15, 102:15
ante [2] - 37:19, 81:17 appropriate [7] - 48:12, 48:13, 53:8, 70:6, 70:16, 70:17, behavior [1] - 34:4
anticipated [1] - 53:18, 53:20, 73:24, 65:7, 76:6 76:17, 77:7, 77:22, bell [1] - 40:8
104:22 77:25, 99:11, 99:18, assuming [1] - 30:8 87:6, 88:21, 97:9, belong [1] - 83:8
antiquated [1] - 96:5 105:24 assumption [7] - 30:8, 99:24, 102:14, beneficial [1] - 93:18
anyway [1] - 95:13 appropriately [1] - 30:9, 46:10, 58:6, 102:22, 106:4 benefit [2] - 78:3,
apart [3] - 43:6, 43:8, 56:9 58:16, 62:21, 77:8 BALIN [81] - 14:17, 83:24
104:1 appropriating [2] - attach [3] - 13:16, 14:20, 14:25, 15:24, benefits [1] - 80:13
Apart [1] - 26:8 80:6, 80:7 83:11 16:3, 16:7, 16:11, best [8] - 15:1, 60:22,
apologize [6] - 29:3, apropos [1] - 100:1 attached [6] - 7:24, 16:20, 17:20, 18:11, 70:24, 75:18, 95:1,
66:18, 66:19, 75:8, architected [1] - 44:3 12:5, 17:10, 22:24, 18:14, 24:13, 25:9, 107:9, 107:11, 108:7
77:13, 103:18 area [6] - 18:10, 42:5, 23:4, 57:6 25:18, 26:6, 28:16, bet [1] - 104:18
appeal [5] - 7:7, 12:24, 47:22, 50:23, 96:5, attachments [1] - 28:22, 29:2, 30:14, better [5] - 36:14,
13:16, 15:7, 78:13 98:15 11:24 30:19, 30:24, 31:10, 43:20, 54:4, 61:8,
appealability [1] - areas [3] - 15:12, attempt [1] - 55:23 31:14, 36:23, 36:25, 98:23
79:6 18:13, 42:9 attention [6] - 6:7, 37:4, 39:3, 39:8, between [18] - 5:25,
appealable [1] - 79:7 argued [4] - 28:25, 14:14, 56:12, 61:17, 39:20, 53:19, 54:1, 8:19, 15:14, 19:12,
appeals [2] - 14:16, 89:13, 89:15, 94:4 64:1, 105:18 58:19, 59:2, 59:13, 27:13, 33:24, 53:23,
15:10 arguing [2] - 80:3, attorney [1] - 14:18 59:18, 59:24, 60:7, 55:21, 58:4, 61:13,
Appeals [11] - 6:25, 94:1 aura [1] - 92:15 60:10, 61:7, 63:15, 65:14, 79:4, 79:22,
7:3, 7:7, 7:10, 16:6, argument [7] - 6:11, austere [1] - 105:7 63:19, 63:22, 66:8, 83:13, 90:4, 93:25,
41:20, 53:6, 78:6, 7:19, 15:25, 18:6, author [1] - 6:24 66:11, 66:18, 66:24, 95:3, 98:17
78:10, 78:19, 88:2 84:19, 89:10, 100:4 authorized [1] - 48:14 70:7, 70:9, 70:13, beyond [2] - 31:6,
appear [2] - 26:20, arguments [1] - 99:21 70:21, 71:3, 71:7,
available [16] - 9:16, 41:8
60:12 arise [1] - 24:15 71:10, 71:18, 71:23,
10:3, 17:25, 32:7, Bickel [2] - 89:14,
Appearance [10] - 2:8, arises [1] - 60:14 72:4, 72:8, 72:10,
32:9, 32:10, 32:12, 89:20
2:9, 2:9, 2:13, 2:13, arose [1] - 20:5 72:12, 72:15, 72:18,
32:13, 39:1, 57:18, Bickel's [1] - 89:17
2:14, 3:2, 3:8, 3:10, arrange [1] - 88:11 73:2, 73:6, 73:9,
57:24, 79:25, 81:18, big [1] - 23:12
4:5 article [17] - 6:24, 73:15, 73:21, 74:10,
100:12, 104:17, binding [1] - 39:6
appearance [1] - 25:4 30:2, 30:3, 38:23, 75:7, 75:11, 75:18,
106:23 bit [9] - 10:12, 15:14,
38:24, 39:13, 52:9, 76:4, 76:9, 76:11,
Appearances [2] - avatar [1] - 31:1 23:17, 30:7, 43:3,
61:3, 65:15, 73:12, 77:12, 77:16, 77:19,
2:25, 3:23 Avenue [3] - 2:11, 54:7, 56:2, 66:20,
75:21, 80:20, 85:24, 88:23, 99:24, 106:7,
APPEARANCES [1] - 2:15, 3:14 80:2
86:4, 90:21, 90:25, 106:16, 107:16
2:1 avoid [2] - 40:24, 90:6 blog [1] - 40:19
106:24 Balin's [3] - 58:16,
appeared [1] - 63:24 avoiding [1] - 106:12 blogs [1] - 39:25
articles [3] - 5:19, 103:21, 103:22
appearing [1] - 5:8 aware [5] - 12:20, blood [1] - 31:18
83:17, 88:19 banana [1] - 102:21
appellate [9] - 7:18, 55:24, 87:12, 102:16 Board [6] - 19:11,
articulate [2] - 18:21, Bar [1] - 24:23
7:24, 12:9, 12:13, awfully [1] - 23:12 19:23, 20:8, 20:12,
18:22 Bartnicki [6] - 5:23,
12:23, 13:11, 23:5, 21:25, 48:6
3
Bob [1] - 8:23 37:18, 58:19, 75:14 certainly [6] - 10:16, 48:22, 48:25, 49:2, cites [1] - 64:17
book [1] - 89:17 capable [1] - 84:25 46:16, 55:11, 59:13, 49:4, 49:10, 49:18, citing [1] - 65:10
Boston [7] - 1:17, capital [1] - 72:23 85:5, 96:8 49:22, 50:17, 50:20, Civil [3] - 1:5, 5:3, 5:4
1:23, 2:7, 3:4, 3:15, capitalists [1] - 33:2 certify [1] - 108:5 50:22, 51:1, 51:5, civil [1] - 89:20
3:21, 4:4 card [1] - 15:5 challenges [1] - 29:19 51:18, 51:23, 59:4, claim [2] - 95:21,
bottom [6] - 7:11, care [1] - 70:4 Change [1] - 82:7 63:16, 63:23, 64:5, 96:22
22:18, 45:2, 104:19, careful [1] - 40:16 change [2] - 34:4, 64:10, 64:14, 64:18, claiming [1] - 47:17
104:25, 105:15 carefully [5] - 52:15, 97:6 64:20, 65:9, 65:14, Clara [1] - 65:3
bound [1] - 86:24 52:20, 60:20, 60:23, changes [5] - 8:10, 65:19, 66:1, 76:18, Classics [2] - 97:18,
boxes [1] - 15:6 71:4 8:12, 34:8, 58:3, 78:22, 79:8, 79:12, 97:19
Boy [1] - 64:13 case [60] - 5:3, 5:23, 61:16 79:18, 79:21, 80:23, Clean [1] - 107:12
break [6] - 10:11, 6:2, 11:16, 18:8, chapter [1] - 89:18 81:4, 81:23, 82:20, clean [1] - 67:21
37:9, 55:25, 61:22, 18:10, 18:15, 22:21, characterization [1] - 83:1, 84:11, 85:5, clear [14] - 5:23,
79:15, 79:18 23:21, 25:4, 27:14, 95:18 85:25, 86:6, 86:20, 13:10, 19:3, 29:3,
breast [1] - 91:19 34:15, 34:20, 35:1, characterizations [1] - 87:21, 88:3, 88:13, 29:21, 44:2, 55:13,
breath [1] - 52:14 35:5, 35:7, 40:14, 94:11 101:16, 101:20, 63:19, 70:23, 78:1,
Brenda [4] - 1:21, 40:24, 42:14, 42:15, characterize [1] - 101:23, 102:2, 86:19, 87:8, 95:4,
108:4, 108:15, 44:9, 44:10, 47:1, 99:16 103:4, 103:17, 96:20
108:16 48:3, 49:14, 49:24, chastised [1] - 92:1 104:2, 104:15, clerical [1] - 44:7
brief [3] - 6:13, 12:19, 50:11, 50:16, 62:23, chat [1] - 72:1 105:1, 105:22, CLERK [2] - 5:2, 66:5
28:13 64:21, 64:23, 64:25, Chatterjee [20] - 2:22, 106:18, 106:22,
clerk [2] - 15:5, 15:10
briefing [1] - 99:21 65:17, 65:21, 74:13, 3:16, 5:10, 16:21, 107:7
clerk's [5] - 6:24, 14:2,
briefs [1] - 80:17 74:15, 78:12, 79:19, 18:18, 25:21, 26:8, Chatterjee's [1] -
55:15, 78:19, 107:4
79:21, 80:4, 82:9, 37:12, 39:18, 43:24, 75:12
bring [3] - 11:10, Clerk's [11] - 15:4,
82:23, 82:24, 83:12, 56:24, 62:4, 66:14, check [6] - 26:1,
61:17, 105:18 16:6, 68:7, 78:4,
83:14, 87:20, 88:17, 66:20, 66:25, 71:13, 42:22, 44:4, 59:20,
broad [2] - 92:4, 92:21 78:5, 78:6, 78:10,
89:3, 89:14, 89:16, 76:24, 78:20, 90:18, 62:5, 106:19
broadly [1] - 61:14 82:17, 104:19, 107:2
90:15, 91:3, 95:16, 92:7 checking [1] - 106:20
Broadway [1] - 4:7 clerks [2] - 40:15,
96:21, 99:14, 107:3 CHATTERJEE [153] - chime [1] - 53:21
bronze [1] - 96:7 104:24
cases [14] - 15:16, 5:14, 6:8, 6:17, 6:21, choice [3] - 86:5, 86:7, client [21] - 18:16,
brothers [1] - 46:17
64:8, 64:10, 64:11, 7:8, 8:5, 8:14, 8:23, 94:9
brought [7] - 6:6, 25:10, 26:5, 30:10,
65:7, 65:10, 65:19, 9:2, 9:22, 10:15, choose [2] - 94:8, 30:13, 31:15, 31:19,
11:9, 14:14, 15:5,
65:20, 65:24, 80:17, 11:2, 11:15, 11:22, 102:5 39:8, 56:1, 59:13,
24:2, 56:12, 64:1
84:13, 88:13, 98:15, 12:3, 12:10, 13:14, chosen [1] - 102:23 59:15, 59:19, 60:20,
BROWN [1] - 4:3
99:9 14:4, 16:22, 17:8, CHRISTOPHER [1] - 63:10, 75:9, 75:15,
Bunner [1] - 79:19
cash [13] - 7:14, 17:13, 17:16, 18:25, 1:7 97:10, 102:22,
burdening [1] - 60:12
12:12, 21:2, 23:3, 19:3, 19:6, 19:12, Christopher [1] - 2:20 102:25, 105:5, 105:6
Bush [1] - 3:9
23:10, 31:21, 32:17, 19:17, 19:20, 19:24, Circuit [27] - 7:1, 7:3, client's [2] - 24:9,
business [4] - 30:17,
37:1, 46:18, 72:19, 20:13, 20:16, 20:23, 7:10, 7:11, 12:21, 107:8
34:3, 56:12, 71:25
79:16, 88:6, 96:3 21:1, 21:10, 21:12, 12:24, 13:4, 13:8, clients [11] - 36:9,
button [1] - 75:7
cat [3] - 28:19, 40:8, 21:17, 21:23, 22:2, 14:1, 15:4, 15:16, 36:19, 52:5, 52:23,
99:8 22:5, 22:9, 22:13, 15:18, 15:19, 41:8, 53:11, 67:8, 74:23,
C catch [2] - 49:17, 22:23, 23:2, 23:15, 44:8, 53:5, 67:16, 83:7, 102:15, 105:2
66:19 23:23, 24:1, 24:4, 68:6, 68:7, 68:12, closed [1] - 100:10
CA [4] - 2:24, 3:9,
categorical [2] - 25:22, 26:1, 26:12, 78:13, 81:2, 83:25, closest [1] - 91:19
3:12, 3:17
18:24, 29:16 27:1, 27:3, 27:8, 89:3, 91:23, 91:24, Club [1] - 107:12
Cal.4th [1] - 64:20
cauldron [1] - 94:19 27:12, 28:6, 29:11, 104:16
CALAMARI [8] - Coast [1] - 8:25
causing [1] - 33:21 29:18, 31:24, 32:7, circuit [1] - 89:3
43:12, 43:14, 43:20, code [3] - 83:19,
CD [6] - 22:14, 22:15, 32:18, 32:24, 33:4, circumstance [1] - 84:14, 84:15
54:3, 54:8, 54:12,
45:3, 56:24, 57:7 33:9, 33:17, 33:21, 83:23
54:15, 55:5 coherent [3] - 37:20,
Center [1] - 4:4 34:2, 34:22, 35:18, circumstances [8] -
Calamari [8] - 2:13, 89:11, 89:22
century [1] - 89:14 38:13, 39:23, 40:21, 24:11, 26:20, 81:19,
43:14, 43:16, 43:17, collapsing [1] -
certain [19] - 7:25, 41:3, 41:25, 42:11, 84:8, 87:4, 91:16,
47:19, 54:3, 55:7, 103:18
8:12, 9:7, 12:6, 42:13, 43:7, 44:2, 95:20, 98:7
64:17 colleague [1] - 67:3
13:19, 15:16, 29:12, 44:16, 44:21, 44:25, citation [3] - 28:3,
calendar [1] - 104:11 collection [1] - 96:7
29:14, 47:7, 51:9, 45:7, 45:11, 45:14, 64:22, 65:2
California [2] - 64:20, college [4] - 49:23,
55:3, 62:22, 84:3, 45:17, 45:20, 45:25, citations [3] - 6:9,
65:7 85:13, 85:19, 94:17
84:6, 89:25, 94:7, 46:4, 46:15, 47:2, 40:24, 64:18
call-in [1] - 64:7 collide [1] - 105:13
94:18, 96:15, 105:14 47:6, 47:12, 47:25, cite [2] - 28:3, 28:15
candor [1] - 26:13 Collings [2] - 35:9,
Certainly [1] - 52:8 48:10, 48:16, 48:19, cited [2] - 6:2, 64:22
cannot [4] - 29:12, 35:21
4
com [1] - 28:5 complete [4] - 6:22, confirmation [1] - constraints [1] - 37:18 Copy [1] - 79:19
comfortable [1] - 56:5 23:18, 42:21, 77:4 14:11 constrict [1] - 95:11 copying [1] - 70:20
comment [1] - 93:16 completely [1] - 85:8 confirming [1] - 23:3 construed [1] - 89:9 Copyright [4] - 64:11,
commentary [11] - complicated [1] - 19:8 conflict [1] - 14:23 consult [10] - 26:4, 65:1, 83:14, 86:8
5:19, 5:21, 5:25, composed [1] - 98:11 conflicting [1] - 11:11 29:16, 30:12, 31:19, core [6] - 21:5, 80:4,
10:14, 39:25, 51:7, comprehensive [1] - confrontation [1] - 36:9, 36:19, 36:21, 80:14, 81:10, 81:11,
65:15, 83:17, 84:15, 61:1 90:5 37:4, 56:1, 74:22 93:15
88:15, 88:19 compromises [1] - confronted [2] - consulted [1] - 78:4 corner [1] - 57:20
commenting [1] - 89:23 11:11, 89:16 consulting [1] - 28:1 correct [8] - 13:15,
79:25 Computer [1] - 1:24 confronting [1] - consume [1] - 107:13 16:16, 23:15, 26:2,
comments [4] - 51:11, computer [4] - 58:13, 89:24 contemporaneously 29:18, 60:7, 60:18,
80:24, 86:13, 100:2 59:10, 67:5, 67:23 confusing [1] - 103:5 [1] - 82:13 72:12
commercial [7] - computers [2] - 22:4, conjoined [1] - 84:7 Contempt [1] - 34:15 Correct [5] - 16:7,
84:25, 91:7, 92:22, 22:6 connection [14] - contempt [5] - 10:20, 17:16, 29:18, 51:18,
94:4, 94:7, 96:4, concede [1] - 33:13 11:19, 21:25, 22:21, 35:8, 35:12, 35:13, 73:6
96:9 concept [1] - 55:2 43:18, 44:14, 68:4, 98:21 corrected [1] - 16:14
commercially [1] - concern [21] - 18:20, 69:22, 75:19, 77:7, content [3] - 44:17, correcting [1] - 49:12
91:8 18:22, 20:17, 20:19, 78:2, 82:10, 86:4, 65:11, 83:16 correction [1] - 48:15
committing [1] - 60:24 21:19, 25:19, 27:16, 94:15, 100:4 context [5] - 36:16, corrections [3] -
common [1] - 39:12 31:15, 33:22, 36:13, CONNECTU [1] - 1:4 82:12, 86:11, 92:15, 48:12, 50:7, 50:12
communicate [1] - 39:24, 41:14, 44:5, ConnectU [17] - 2:3, 99:14 correctly [1] - 79:9
105:7 65:11, 74:11, 83:4, 5:4, 10:14, 35:9, continuation [1] - correlated [1] - 14:10
communicated [1] - 85:7, 95:14, 105:21, 35:12, 42:19, 43:10, 43:8 counsel [12] - 5:7,
16:8 107:3, 107:4 46:8, 47:4, 47:10, continue [5] - 12:1, 14:23, 15:1, 17:22,
communication [2] - concerned [14] - 48:3, 52:2, 54:16, 25:7, 37:16, 78:16, 24:20, 27:4, 27:10,
60:4, 95:3 25:13, 25:16, 30:16, 56:13, 56:23, 62:15, 102:23 46:23, 47:23, 62:16,
communications [3] - 31:8, 31:16, 42:7, 108:9 Continued [1] - 2:25 89:12
42:23, 75:23, 79:13 43:22, 60:11, 66:25, ConnectU's [2] - continued [1] - 3:23 counsel's [2] - 15:25,
companies [4] - 21:3, 71:14, 74:2, 82:8, 34:14, 57:5 contrive [1] - 90:6 18:6
21:4, 32:19, 33:12 106:2, 106:10 Consent [1] - 89:18 Control [5] - 64:12, couple [4] - 21:12,
company [6] - 21:7, concerns [3] - 76:24, consequence [1] - 65:1, 79:19, 83:14, 40:24, 41:5, 52:4
21:14, 32:11, 32:17, 88:9, 91:6 95:2 86:8 course [27] - 5:6, 18:1,
32:20, 72:20 concluded [1] - consequently [1] - control [5] - 10:25, 18:2, 21:4, 25:10,
compare [2] - 44:17, 107:19 73:23 31:7, 40:10, 40:18, 30:20, 31:14, 37:4,
48:4 conclusion [3] - consider [15] - 25:12, 90:16 53:24, 61:10, 63:13,
comparison [1] - 49:6 30:15, 30:17, 90:2 31:20, 43:5, 55:13, convene [2] - 89:6, 66:19, 67:1, 75:9,
compelling [4] - conclusions [2] - 72:23, 84:19, 91:20, 92:2 77:23, 89:1, 89:10,
81:15, 84:23, 91:16, 74:12, 99:22 92:10, 93:19, 93:24, convenience [1] - 90:19, 92:7, 92:25,
94:24 conduct [1] - 46:11 97:24, 98:10, 57:7 93:19, 93:24, 94:13,
competent [1] - 38:7 confer [3] - 27:1, 27:5, 103:14, 106:5, conventional [2] - 96:21, 98:21, 100:7,
competing [4] - 33:10, 35:11 106:10 90:21, 92:14 100:20
81:24, 82:21, 91:6 conference [1] - 42:25 considerable [2] - conversations [1] - COURT [295] - 1:1,
competition [1] - confidence [1] - 105:3 87:3, 90:13 27:18 5:5, 6:5, 6:14, 6:20,
33:11 Confidential [2] - considerably [1] - conversion [1] - 57:16 7:5, 8:3, 8:13, 8:22,
competitive [4] - 22:15, 45:19 31:25 converted [4] - 9:15, 8:25, 9:19, 10:11,
32:15, 32:16, 33:8, confidential [22] - consideration [6] - 57:13, 59:7, 69:1 10:18, 11:3, 11:16,
36:18 5:22, 14:12, 21:3, 55:11, 81:22, 81:24, converting [1] - 57:7 11:25, 12:7, 12:16,
competitively [1] - 21:6, 21:13, 22:18, 82:21, 95:8, 100:23 convincing [1] - 92:20 13:6, 13:13, 13:20,
34:3 26:20, 26:21, 38:17, considered [5] - copied [3] - 68:12, 14:13, 14:19, 14:24,
competitor [1] - 34:8 39:1, 45:2, 45:3, 12:21, 34:3, 52:20, 68:13, 69:4 15:11, 16:1, 16:4,
competitors [1] - 33:9 45:6, 52:10, 68:21, 59:5, 99:6 copies [9] - 15:19, 16:9, 16:18, 16:21,
competitors's [1] - 94:14, 94:16, 95:6, considering [4] - 64:7, 65:4, 69:7, 69:9, 17:5, 17:12, 17:15,
92:22 101:11, 103:16, 70:14, 71:16, 100:20 69:11, 69:13, 69:14, 17:17, 18:9, 18:12,
complaining [1] - 104:17, 106:2 consistency [1] - 69:20, 78:10 18:18, 19:2, 19:5,
16:13 confidentiality [4] - 74:23 copy [16] - 6:16, 9:14, 19:9, 19:16, 19:18,
complaint [11] - 9:25, 35:20, 44:11, 45:5, consistent [1] - 78:8 13:24, 50:20, 51:21, 19:22, 20:2, 20:9,
12:5, 12:25, 13:2, 88:8 constitutes [1] - 108:6 57:12, 57:25, 58:23, 20:11, 20:15, 20:21,
13:4, 13:17, 22:24, confines [1] - 31:6 Constitutional [3] - 64:14, 65:25, 68:13, 20:25, 21:8, 21:11,
23:5, 34:25, 44:15, confirm [4] - 7:17, 18:4, 81:24, 82:18 68:24, 69:9, 69:24, 21:16, 21:21, 21:24,
58:5 25:23, 46:5, 70:10 constraint [2] - 37:15 101:12 22:3, 22:8, 22:10,
5
22:19, 23:1, 23:6, 73:22, 74:18, 75:10, 69:9, 77:17, 82:22, 103:10, 106:8, demands [2] - 89:5,
23:13, 23:16, 23:25, 75:16, 76:2, 76:8, 100:2 106:14, 107:4, 90:10
24:2, 24:7, 24:14, 76:10, 76:15, 76:22, courthouse [1] - 107:11 demeaning [2] - 31:2,
24:18, 24:21, 24:25, 77:7, 77:14, 77:18, 78:18 dealing [8] - 21:8, 97:10
25:2, 25:6, 25:15, 77:21, 78:2, 78:24, Courthouse [4] - 1:16, 24:6, 74:21, 84:21, democratic [2] -
25:24, 26:3, 26:7, 79:11, 79:17, 79:20, 1:17, 1:22, 1:23 92:23, 93:3, 98:3, 90:24, 93:23
26:15, 27:2, 27:6, 80:2, 81:3, 81:9, courtroom [1] - 13:21 98:15 deny [1] - 102:13
27:11, 27:24, 28:12, 82:4, 82:25, 83:21, Courtroom [1] - 1:16 dealt [2] - 35:8, 64:25 denying [1] - 99:15
28:21, 28:25, 29:9, 84:17, 85:18, 86:3, courts [2] - 41:23, December [3] - 33:25, deposition [21] - 8:10,
29:14, 30:5, 30:16, 86:18, 86:22, 87:23, 98:18 104:8, 104:9 8:11, 23:14, 25:20,
30:21, 30:25, 31:12, 88:12, 88:20, 88:25, Courts [1] - 15:9 decided [1] - 105:18 31:9, 48:12, 48:15,
31:16, 32:6, 32:9, 92:13, 96:20, 97:1, cover [1] - 77:10 decides [1] - 64:24 49:12, 50:8, 50:12,
32:22, 32:25, 33:6, 100:9, 101:8, covered [1] - 55:16 decision [3] - 86:7, 51:16, 71:12, 74:9,
33:13, 33:20, 33:24, 101:10, 101:19, create [1] - 39:17 99:12, 100:6 74:24, 79:15, 86:11,
34:10, 34:13, 34:17, 101:22, 101:24, created [4] - 10:5, decisions [2] - 30:18, 86:12, 88:5, 94:13,
34:19, 35:2, 35:4, 102:11, 103:8, 57:9, 57:15, 83:6 89:23 95:9, 95:25
35:6, 35:17, 35:24, 103:19, 104:3, creates [2] - 59:6, 84:3 declaration [21] - depositions [3] - 47:1,
36:3, 36:6, 36:24, 104:18, 105:5, creation [1] - 94:5 7:20, 14:16, 17:10, 47:14, 60:13
37:3, 37:6, 38:21, 106:4, 106:8, Crimson [4] - 30:2, 53:4, 53:10, 59:12, deputy [1] - 13:21
39:4, 39:11, 39:22, 106:17, 106:21, 96:25, 97:1 60:15, 61:1, 61:11, derogation [1] - 99:3
40:5, 41:2, 41:14, 107:2, 107:10, 61:18, 62:25, 70:9, designating [1] -
CRR [3] - 1:21, 108:4,
42:3, 42:12, 43:1, 107:17 70:19, 76:25, 77:3, 86:13
108:16
43:8, 43:13, 43:16, court [42] - 5:9, 7:24, 77:9, 101:6, 104:22, desire [2] - 84:1,
crude [1] - 97:10
43:21, 44:13, 44:20, 9:13, 9:24, 13:24, 106:6 90:11
crunch [1] - 60:21
44:24, 45:4, 45:9, 13:25, 14:6, 14:16, declarations [10] - despite [1] - 94:17
Culman [2] - 8:23,
45:12, 45:15, 45:18, 36:7, 38:6, 40:1, 52:4, 52:6, 52:21, detail [2] - 31:25,
8:24
45:24, 46:2, 46:13, 41:18, 42:14, 42:15, 53:16, 69:25, 70:3,
culture [1] - 71:25 79:22
46:25, 47:5, 47:11, 42:20, 43:4, 44:12, 77:15, 88:8, 104:6,
current [3] - 33:1, determination [2] -
47:19, 48:8, 48:15, 45:7, 45:8, 46:1, 105:25
38:23, 42:15 14:3, 75:19
48:17, 48:21, 48:23, 46:5, 54:6, 54:20, decline [2] - 18:17,
curtailed [1] - 35:22 determinative [1] -
49:1, 49:3, 49:8, 55:14, 57:24, 57:25, 72:2
cyberspace [1] - 75:4 97:13
49:20, 50:13, 50:19, 59:17, 62:4, 62:5, declined [1] - 83:2 determine [1] - 44:7
50:21, 50:24, 51:4, 62:22, 66:16, 67:10, Dedalus [1] - 85:22
D develop [2] - 55:22,
51:12, 51:22, 51:25, 68:2, 68:19, 69:10, deems [1] - 77:24 55:23
52:12, 53:2, 53:11, 70:11, 77:25, 81:15,
D-Day [1] - 104:9 deep [1] - 52:14 developed [5] - 10:13,
53:15, 53:22, 54:5, 91:19, 98:20, 98:23,
damage [1] - 81:20 deeper [1] - 55:20 42:9, 103:20,
54:10, 54:14, 54:25, 102:9
dangerous [1] - 52:18 defamation [2] - 103:21, 105:13
55:7, 56:18, 57:1, Court [61] - 1:22, 5:2,
dangers [2] - 54:10, 74:19, 95:20 developing [1] - 10:21
57:3, 57:21, 58:6, 5:16, 6:19, 6:25, 7:3,
80:14 Defendant [1] - 3:6 development [4] -
58:11, 58:15, 58:20, 7:7, 7:10, 9:18, 9:20,
Daniel [3] - 2:5, 3:13, defendants [1] - 54:21 11:8, 85:23, 93:21,
59:3, 59:9, 59:15, 14:9, 15:2, 15:8,
52:1 Defendants [2] - 1:9, 96:8
59:21, 59:25, 60:8, 15:17, 15:20, 16:6,
data [1] - 9:17 2:18 dialogue [2] - 27:13,
60:11, 60:19, 61:12, 19:14, 31:7, 41:20,
database [1] - 22:17 defending [1] - 94:1 84:16
61:25, 62:8, 62:17, 44:4, 45:1, 45:16,
date [9] - 36:3, 56:21, defense [2] - 40:14, diary [23] - 7:14, 9:4,
63:12, 63:21, 63:24, 51:2, 51:6, 53:5,
56:22, 57:8, 57:20, 87:13 11:23, 12:13, 16:14,
64:9, 64:13, 64:16, 57:18, 58:23, 62:11,
58:8, 58:11, 104:23 defensive [1] - 90:3 21:18, 27:25, 29:5,
64:19, 65:6, 65:13, 64:21, 65:2, 65:3,
dated [1] - 47:8 define [1] - 90:20 30:8, 44:22, 66:24,
65:18, 65:24, 66:3, 65:22, 66:5, 67:16,
daunting [1] - 40:7 defined [1] - 61:15 68:11, 69:24, 70:20,
66:7, 66:9, 66:15, 68:5, 68:11, 68:23,
66:23, 67:2, 67:9, DAVIS [1] - 4:7 defining [1] - 78:11 79:16, 79:23, 79:25,
77:24, 78:5, 78:6,
67:13, 68:1, 68:4, Davis [2] - 14:18, definite [1] - 8:19 85:14, 91:10, 91:11,
78:10, 78:19, 78:20,
67:12 definition [1] - 80:5 94:10, 96:11
68:7, 68:9, 68:20, 83:2, 87:14, 87:15,
68:25, 69:6, 69:11, days [3] - 10:7, 47:8, degrades [1] - 51:21 diary's [1] - 29:1
87:17, 88:2, 89:13,
69:17, 69:19, 69:22, 52:4 degree [9] - 15:22, difference [5] - 15:14,
92:1, 92:9, 98:19,
70:4, 70:8, 70:12, DC [1] - 2:11 26:22, 80:20, 85:6, 45:18, 65:14, 79:4,
99:11, 105:3, 105:8,
70:15, 70:18, 70:23, deal [20] - 10:18, 95:19, 98:11, 79:22
105:14, 106:3,
71:5, 71:8, 71:17, 108:5, 108:17 10:19, 33:3, 38:20, 101:12, 102:12, differences [2] -
71:21, 72:3, 72:7, court's [3] - 13:12, 42:21, 44:9, 59:9, 103:12 45:20, 58:4
72:9, 72:11, 72:14, 44:6, 55:15 65:7, 78:24, 82:9, delay [1] - 27:9 different [11] - 29:2,
72:17, 73:1, 73:5, Court's [8] - 5:18, 82:13, 89:7, 99:12, delivered [1] - 6:18 37:24, 43:3, 44:16,
73:8, 73:13, 73:20, 100:18, 103:9, delves [1] - 62:15 44:19, 65:22, 74:11,
10:25, 11:1, 66:25,
6
74:12, 83:18, 84:7, discussed [1] - 42:9 22:3, 22:5, 22:7, done [5] - 26:17, Eduardo [1] - 3:6
102:25 discusses [1] - 79:21 22:12, 22:14, 22:23, 38:11, 46:21, 78:8, educational [1] -
differential [1] - 30:18 discussion [13] - 23:22, 23:25, 24:1, 98:19 20:18
differently [1] - 75:16 15:23, 55:4, 56:14, 27:16, 27:23, 27:25, dot [9] - 9:11, 10:5, effect [1] - 70:3
difficult [3] - 42:3, 80:9, 87:11, 89:19, 28:3, 31:25, 34:11, 22:16, 28:5, 45:23, effective [1] - 40:18
82:18, 91:20 90:12, 90:19, 92:7, 44:16, 44:21, 46:1, 47:4, 57:2, 59:7, effort [2] - 89:1,
difficulty [1] - 87:3 98:12, 100:20, 47:2, 47:13, 47:14, 69:3 102:12
digest [1] - 107:13 100:23, 105:24 48:7, 49:22, 49:23, DOUGLAS [1] - 1:11 efforts [2] - 42:4,
dimension [3] - 13:20, discussions [1] - 49:24, 50:11, 56:5, down [9] - 10:11, 15:3, 92:16
85:21, 105:11 52:16 56:8, 56:23, 57:6, 17:7, 17:9, 17:19, EHRMAN [2] - 3:8,
dimensions [1] - 30:6 disinformation [1] - 57:10, 57:11, 57:13, 27:22, 37:2, 67:10, 3:11
diminish [2] - 94:3, 45:13 57:15, 57:16, 57:17, 77:5 eight [1] - 16:11
96:22 dismiss [5] - 11:19, 57:18, 57:19, 57:24, download [2] - 9:6, either [1] - 45:5
direct [2] - 90:5, 99:3 12:24, 13:15, 82:10, 58:1, 58:23, 59:5, 40:2 either/or [1] - 83:21
directly [5] - 10:24, 82:14 59:17, 63:5, 63:25, downloaded [1] - 28:8 electronic [4] - 9:14,
26:10, 31:6, 43:18, disobedience [1] - 67:14, 67:17, 67:20, dragged [1] - 75:3 9:17, 47:7, 58:3
93:14 89:20 67:21, 68:2, 68:10, dramatic [1] - 6:15 element [1] - 37:21
disabilities [1] - 41:23 dispose [1] - 87:6 68:12, 68:16, 68:17, draw [2] - 84:11, 84:13 eliciting [1] - 84:25
disadvantage [1] - disposed [1] - 54:13 68:18, 68:19, 68:23, drawing [2] - 5:24, eliminate [1] - 77:1
36:18 disposition [2] - 68:24, 69:3, 71:1, 80:10 eliminating [1] - 77:4
disc [1] - 57:4 47:21, 79:6 73:4, 80:16, 81:1, drawn [4] - 23:21, Elizabeth [1] - 4:3
dispute [2] - 18:13, 81:8, 83:20, 85:17, 26:9, 26:22, 36:15
disciplinary [2] - Elliot [1] - 19:13
92:4 85:25, 101:11, drove [1] - 17:2
94:16, 95:5 EMANUEL [1] - 2:14
disrepute [6] - 23:22, 101:13 drum [1] - 93:3
disclose [1] - 37:16 Emanuel [1] - 43:14
31:3, 36:17, 73:24, documents [100] - drums [1] - 63:6
disclosed [9] - 9:7, embarrassment [1] -
94:12, 95:19 5:17, 6:1, 6:22, 7:6,
31:5, 52:10, 87:14, due [1] - 55:5 95:22
dissatisfied [1] - 88:1 7:9, 7:12, 7:13, 8:8,
87:15, 95:11, Dunn [1] - 40:11 emerged [1] - 40:17
disseminates [1] - 9:23, 12:4, 12:8,
100:19, 101:2, 101:3 DUNNER [1] - 2:10 emergence [1] - 40:8
10:24 12:23, 13:10, 13:22,
disclosing [2] - 72:21, during [5] - 22:8, 22:9, emphasize [3] - 70:25,
14:5, 15:2, 15:5,
105:3 dissemination [1] - 55:25, 89:10, 100:20 84:18, 91:13
15:7, 15:8, 15:17,
disclosure [19] - 17:3 DUSTIN [1] - 1:7 employee [1] - 9:11
16:5, 16:9, 16:12,
22:12, 30:7, 32:16, distinction [5] - 5:24, duties [1] - 94:8 enable [1] - 34:7
16:17, 16:25, 17:4,
35:20, 40:13, 55:16, 6:4, 83:13, 84:12, DVD [8] - 64:11, encourage [2] - 75:5,
17:6, 17:9, 17:10,
63:3, 81:13, 81:21, 84:13 64:14, 65:1, 79:19, 97:9
17:24, 18:19, 18:20,
91:18, 98:13, 99:5, distinctions [1] - 82:24, 83:13, 86:8, encouraging [1] -
19:4, 19:7, 22:20,
100:2, 100:21, 98:17 99:9 40:3
27:20, 28:18, 31:4,
103:15, 103:24, distinguish [2] - Dyvia [4] - 8:10, 48:11, end [6] - 8:10, 27:18,
34:20, 38:16, 38:17,
104:1, 105:19 65:21, 83:22 50:7, 50:12 33:7, 36:3, 47:23,
38:19, 38:25, 39:9,
discount [1] - 91:12 distract [1] - 56:10 78:18
39:13, 40:12, 40:15,
discovery [47] - 22:8, distracted [1] - 74:1 E ended [2] - 54:17,
44:5, 44:18, 44:19,
22:9, 35:10, 35:12, distractions [1] - 42:5 72:25
46:12, 48:6, 54:16,
38:8, 38:10, 41:22, distribution [3] - 17:4, e-mail [4] - 19:12, enforce [3] - 86:25,
54:18, 54:19, 54:23,
46:9, 47:2, 47:13, 21:21, 21:23 40:10, 42:23, 57:6 105:9, 105:10
56:4, 56:8, 58:18,
47:14, 47:15, 47:22, DISTRICT [2] - 1:1, 1:1 e-mailed [4] - 47:4, enforced [1] - 95:24
58:24, 60:3, 62:23,
47:24, 50:25, 51:2, District [9] - 15:2, 47:5, 47:6, 57:9 enforcing [1] - 98:18
63:3, 66:13, 66:21,
51:23, 54:13, 54:17, 15:8, 15:9, 15:17, easily [2] - 46:23, 58:3 engaged [5] - 46:11,
67:7, 67:17, 70:10,
55:2, 55:12, 55:23, 15:20, 41:20, 78:5, editing [1] - 82:19 58:18, 80:6, 80:9,
75:12, 75:13, 75:15,
56:2, 56:9, 56:20, 78:20, 108:5 editor [1] - 70:2 85:23
75:20, 77:10, 78:11,
59:22, 61:6, 61:9, doc [7] - 9:11, 10:5, editor's [2] - 39:25,
80:11, 80:12, 80:20, engineering [1] -
61:19, 62:2, 62:13, 22:16, 45:23, 47:4, 40:19
82:2, 83:4, 83:5, 84:14
62:15, 62:23, 63:2, 59:7, 69:3 editorial [20] - 8:9,
85:2, 86:3, 87:16, enjoined [1] - 40:3
77:1, 77:5, 78:23, docket [3] - 13:23, 25:11, 30:18, 31:11,
88:15, 93:12, 93:17, ensure [2] - 52:19,
82:1, 83:20, 102:18, 34:16, 35:3 36:11, 39:14, 61:15,
99:5, 102:4, 102:7, 87:10
103:13, 103:14, document [92] - 6:16, 65:15, 71:9, 72:15,
103:6, 103:15, ensuring [1] - 41:17
103:20, 104:4, 7:25, 8:1, 8:4, 8:6, 73:16, 73:24, 74:24,
104:17, 106:1, entered [1] - 14:8
104:8, 105:25 9:5, 9:9, 9:11, 10:2, 80:10, 85:4, 86:5,
106:2, 106:25, 107:3 entire [1] - 68:16
discretion [4] - 25:11, 10:4, 10:7, 12:20, 86:7, 95:10, 97:12,
dog [1] - 53:9 entirely [2] - 13:3,
31:11, 36:11, 76:20 13:24, 19:10, 20:7, 97:25
domain [4] - 40:10, 77:10
discuss [4] - 61:14, 20:19, 20:24, 21:1, editors [1] - 86:2
40:17, 60:6, 60:9 entirety [2] - 19:7,
62:2, 76:20, 78:23 21:6, 21:13, 21:17, EDUARDO [1] - 1:6
domestic [1] - 83:3
7
38:16 Excuse [2] - 6:18, eye [1] - 24:5 83:6, 95:13 15:16, 15:18, 15:19,
entities [1] - 94:9 49:15 eyes [1] - 24:4 file [34] - 9:5, 9:6, 41:7, 44:8, 53:5,
entitled [5] - 20:20, exemplar [1] - 51:13 9:12, 9:13, 9:15, 65:7, 67:16, 68:6,
56:6, 83:18, 99:21, exemplars [1] - 48:24 F 10:5, 13:15, 13:24, 68:7, 68:11, 78:13,
102:8 exercise [11] - 10:25, 15:3, 20:12, 45:8, 81:2, 83:10, 83:15,
entity [2] - 84:8, 94:5 36:10, 69:24, 71:9, Facebook [15] - 2:18, 45:16, 45:23, 46:1, 83:18, 83:25, 88:16,
entrenchments [1] - 85:3, 92:20, 96:1, 5:4, 7:15, 31:22, 46:6, 47:4, 47:7, 89:2, 89:8, 89:19,
90:3 97:12, 97:25, 98:24, 33:12, 33:21, 34:6, 54:21, 54:24, 57:9, 89:21, 90:4, 90:10,
entries [1] - 94:10 107:6 35:11, 35:14, 35:15, 58:12, 59:6, 59:7, 90:23, 91:23, 92:16,
entry [1] - 21:18 exhausted [1] - 29:15 56:23, 67:24, 72:23, 67:1, 67:15, 68:18, 93:15, 94:25, 97:16,
equilibrium [1] - 56:11 exhibit [6] - 11:23, 79:16, 108:9 68:19, 69:2, 69:24, 98:8, 99:14, 104:16,
equipment [1] - 69:8 13:2, 14:7, 34:24, FACEBOOK [1] - 1:6 70:11 106:11
error [1] - 44:7 35:15 Facebook's [3] - filed [10] - 34:15, floated [1] - 75:4
Esq [18] - 2:5, 2:8, 2:9, Exhibit [22] - 17:13, 17:22, 21:2, 35:10 35:12, 41:19, 57:17, Floor [3] - 2:16, 3:3,
2:9, 2:13, 2:13, 2:14, 19:7, 19:12, 20:23, faced [1] - 97:24 58:24, 59:17, 100:4, 3:20
2:22, 3:1, 3:2, 3:8, 21:1, 21:17, 21:22, facemash [2] - 20:5, 100:6, 100:7, 101:7 floor [1] - 78:18
3:10, 3:13, 3:16, 4:3, 23:3, 23:14, 27:25, 56:21 files [5] - 7:25, 15:17, flotsam [1] - 99:7
4:5, 4:6, 4:6 28:1, 31:20, 31:21, fact [16] - 6:10, 10:4, 42:14, 42:15, 68:11 flow [10] - 7:15, 12:12,
Esquenet [1] - 2:9 34:14, 58:4, 72:10, 14:12, 38:9, 40:10, filing [1] - 37:8 23:4, 23:10, 31:21,
essentially [3] - 26:18, 73:5, 95:2, 96:10, 44:7, 45:23, 47:3, filings [1] - 22:21 37:1, 46:18, 72:19,
30:22, 95:5 100:8, 101:13 81:21, 90:23, 92:1, filled [3] - 15:4, 48:20, 79:16, 88:6
et [1] - 5:4 exhibits [4] - 7:2, 94:17, 95:24, 96:13, 49:11 flowing [1] - 87:9
evade [2] - 98:23, 13:2, 13:3, 19:3 105:10, 106:22 final [6] - 60:22, 61:5, flows [4] - 21:2, 32:17,
105:14 existed [3] - 28:10, facts [5] - 14:25, 20:6, 87:25, 106:19 87:9, 96:3
evaluation [2] - 32:19, 38:4, 83:6 85:10, 87:14, 87:15 finally [2] - 96:10, focus [9] - 10:13,
37:17 existing [1] - 48:23 factual [2] - 11:8, 98:10 18:12, 23:16, 26:3,
event [6] - 43:1, 55:17, expand [1] - 102:12 11:11 financial [5] - 21:5, 26:14, 37:8, 84:20,
63:6, 80:22, 95:25, expect [2] - 61:18, failure [1] - 92:2 27:25, 34:2, 34:5 84:22
97:5 70:18 fair [3] - 48:12, 48:13, Financial [1] - 4:4 focused [5] - 36:12,
events [1] - 80:9 expectation [1] - 56:3 79:21 financing [2] - 32:2, 37:9, 79:13, 85:1,
evidence [2] - 7:22, expected [1] - 103:1 fairly [5] - 5:23, 19:4, 35:21 95:1
93:1 expedited [1] - 5:15 20:24, 39:12, 80:8 findings [1] - 99:22 follow [3] - 6:15, 44:3,
evidentiary [4] - 14:7, experience [2] - falling [1] - 86:14 fine [1] - 53:16 79:12
88:7, 93:1, 105:17 20:18, 52:16 falls [1] - 86:7 finger [1] - 107:5 following [1] - 6:12
ex [4] - 37:19, 42:8, expert [8] - 8:16, 8:20, false [1] - 7:21 finger-pointing [1] - foolish [3] - 94:21,
81:17 8:22, 8:24, 50:8, familiar [2] - 9:1, 107:5 94:22, 97:24
exact [2] - 11:23, 51:14, 57:5 32:25 FINNEGAN [1] - 2:10 footer [1] - 68:23
65:21 expert's [1] - 8:23 far [6] - 7:16, 21:14, firm [3] - 9:3, 37:21, footnote [2] - 28:4,
exactly [10] - 7:8, explain [4] - 47:20, 23:9, 27:21, 68:10, 57:11 59:17
18:7, 29:21, 35:14, 49:16, 49:19, 56:21 88:8 first [50] - 5:11, 6:22, footsteps [1] - 53:7
41:21, 65:10, 68:18, explains [1] - 57:15 FARABOW [1] - 2:10 9:25, 10:6, 11:5, force [1] - 94:3
74:17, 85:16, 96:19 explanation [2] - fashion [8] - 63:7, 12:5, 12:10, 12:25, forced [1] - 19:19
examination [1] - 103:23, 103:25 74:22, 91:24, 95:4, 13:1, 13:4, 13:17, foreclose [1] - 42:4
53:17 explore [3] - 46:20, 96:13, 98:4, 99:4, 17:21, 22:24, 23:4, foregoing [1] - 108:6
examiner [2] - 56:4, 53:23, 79:14 106:11 25:17, 30:7, 30:17, forensic [1] - 58:13
56:6 exploring [1] - 56:7 fast [1] - 96:5 30:23, 33:18, 34:24, forensics [1] - 59:10
example [8] - 41:18, express [1] - 74:11 fast-moving [1] - 96:5 34:25, 38:14, 41:6, forgetting [1] - 39:1
44:11, 46:18, 47:4, expressed [6] - 43:2, favor [1] - 98:13 41:7, 42:13, 42:16, form [18] - 15:4, 32:15,
49:5, 95:19, 106:24 86:13, 90:11, 90:19, feared [1] - 102:20 44:4, 45:21, 50:6, 37:19, 37:23, 49:12,
Except [1] - 34:23 93:21, 96:11 Federal [1] - 2:6 50:21, 50:22, 53:24, 56:10, 58:3, 58:24,
except [4] - 39:16, expression [8] - feelings [2] - 43:22, 56:12, 58:4, 60:15, 62:23, 63:2, 86:1,
44:17, 91:16, 104:21 79:22, 80:19, 86:1, 55:19 60:25, 62:2, 64:2, 90:20, 90:24, 93:23,
exception [1] - 85:16 90:24, 92:21, 93:18, fellow's [1] - 39:2 66:12, 67:14, 67:19, 94:16, 99:5, 104:20
exceptions [1] - 86:9 94:25 felt [1] - 82:11 70:5, 73:7, 75:20, formal [1] - 25:3
excerpt [3] - 6:11, expressive [2] - 93:13, few [3] - 7:15, 26:12, 78:23, 78:24, 80:25, formalized [1] - 81:20
22:6, 23:14 93:23 70:6 93:3, 97:2, 97:11 format [10] - 9:5, 9:12,
excerpts [1] - 79:14 expressly [1] - 83:2 figure [14] - 30:5, 44:8, First [45] - 5:24, 6:25, 9:14, 9:15, 9:21,
excised [1] - 95:13 extend [1] - 83:2 71:20, 71:24, 72:1, 7:3, 7:10, 7:11, 22:16, 56:25, 57:14,
extraordinary [1] - 73:17, 73:18, 73:22, 12:20, 12:24, 13:4, 59:6
exculpatory [3] -
31:21 73:23, 74:9, 74:16, 13:7, 14:1, 15:4, forms [1] - 91:15
26:18, 26:19, 95:6
8
formulate [3] - 62:3, 94:23 8:19, 44:20, 48:1, hearsay [1] - 97:3 46:6, 46:15, 47:3,
62:14, 62:19 generalized [1] - 48:4, 48:11, 48:24, heart [1] - 89:8 47:25, 48:10, 48:16,
formulation [1] - 78:13 49:4, 49:9, 49:16, HEDGES [1] - 2:15 48:25, 49:2, 49:10,
55:12 generally [4] - 36:13, 50:3, 50:8, 51:14, heightened [1] - 107:3 49:18, 50:17, 51:18,
forth [1] - 55:9 93:22, 98:13, 99:1 51:15, 51:16 held [7] - 23:7, 23:19, 51:24, 52:1, 52:2,
forthcoming [1] - generated [1] - 22:11 handwriting's [1] - 31:3, 36:17, 73:23, 52:3, 52:11, 52:24,
102:15 Gibson [1] - 40:11 44:21 94:12, 95:18 53:3, 53:6, 53:12,
fortify [1] - 87:20 given [7] - 25:19, handwritings [1] - HELLER [2] - 3:8, 3:11 53:19, 54:1, 54:2,
forum [1] - 27:15 28:18, 42:21, 46:8, 50:10 help [2] - 46:6, 56:19 54:12, 55:5, 56:16,
forward [5] - 41:4, 66:11, 79:9, 87:18 handwritten [17] - 8:1, helpful [5] - 40:19, 58:19, 58:21, 59:4,
56:14, 57:10, 59:9, Given [1] - 42:20 8:2, 8:4, 8:7, 42:17, 51:19, 55:1, 61:5, 59:14, 59:18, 60:7,
62:25 glad [1] - 6:14 49:13, 49:25, 51:6, 64:9 60:18, 61:7, 62:6,
foundation [1] - 56:5 go-round [1] - 67:25 51:11, 63:10, 66:22, Hence [1] - 90:4 63:9, 63:15, 63:16,
founded [1] - 71:24 gossip [1] - 83:3 67:18, 67:19, 67:21, HENDERSON [1] - 64:5, 64:7, 64:23,
four [6] - 16:12, 16:16, governs [1] - 46:16 67:25, 68:3, 69:15 2:10 65:4, 65:9, 66:1,
18:19, 18:20, 22:19, great [2] - 33:3, 59:9 hangs [2] - 6:12, 7:19 hereby [1] - 108:5 66:2, 66:8, 66:12,
49:21 greater [3] - 15:22, happily [1] - 90:2 HERRINGTON [2] - 70:13, 70:17, 70:21,
frame [1] - 56:3 27:21, 84:1 happy [9] - 5:14, 6:8, 2:23, 3:16 71:3, 71:10, 71:23,
framed [1] - 51:23 greatest [1] - 44:5 18:25, 49:18, 72:15, high [1] - 85:6 72:10, 72:12, 72:19,
framing [1] - 79:9 76:5, 76:12, 76:13, 73:3, 73:4, 73:6,
greatly [1] - 46:6 highly [2] - 96:12,
88:10 73:15, 73:19, 74:10,
Francisco [1] - 3:9 GRIESINGER [1] - 2:6 97:20
Harbor [1] - 104:10 74:17, 75:8, 76:4,
frankly [2] - 14:1, gross [1] - 91:5 himself [1] - 19:22
hard [6] - 9:14, 40:10, 76:18, 76:21, 76:23,
73:10 grounds [2] - 98:1, historical [2] - 9:8,
76:13, 85:14, 89:24, 77:6, 77:23, 78:22,
freedom [1] - 79:22 104:13 33:16
101:24 79:8, 79:14, 79:18,
freelance [1] - 6:23 groups [1] - 80:5 history [2] - 72:20,
hardly [1] - 87:18 80:23, 81:23, 81:25,
Frequently [1] - 9:19 growth [2] - 31:22, 72:24
hardships [1] - 93:25 82:20, 82:24, 83:10,
frequently [3] - 80:16, 32:19 hold [1] - 106:1
harm [1] - 98:8 84:11, 85:5, 85:8,
83:25, 98:24 guess [28] - 5:10, Hold [1] - 71:21
harmful [1] - 93:19 86:1, 86:6, 87:22,
Freund [1] - 102:20 5:11, 23:16, 26:3, HOLLAND [1] - 3:14
harms [3] - 24:15, 88:3, 88:4, 88:10,
Friday [3] - 1:18, 30:5, 32:10, 32:14, holographic [1] - 64:2
98:3, 98:5 88:23, 96:18, 96:24,
100:17, 104:8 33:25, 36:6, 38:23, Honor [203] - 5:14,
99:24, 100:7, 101:6,
front [1] - 68:17 45:24, 46:2, 55:21, Harvard [28] - 7:23, 6:8, 6:17, 6:21, 7:2, 101:16, 102:3,
full [6] - 30:11, 60:15, 58:6, 58:15, 60:25, 8:16, 19:10, 19:23, 7:8, 7:21, 8:6, 8:11,
102:5, 103:4,
90:12, 93:1, 100:22, 62:24, 69:25, 75:18, 20:4, 20:5, 20:7, 9:2, 9:22, 10:1,
103:17, 104:2,
100:23 78:14, 80:3, 80:24, 20:12, 21:25, 26:16, 10:15, 11:2, 11:15,
104:15, 104:16,
fully [12] - 10:13, 84:11, 100:5, 30:2, 48:4, 48:5, 11:22, 12:3, 12:10,
105:1, 105:22,
15:13, 42:10, 50:14, 101:16, 101:20, 49:11, 49:22, 49:24, 12:15, 13:9, 13:14, 106:7, 106:16,
50:15, 70:25, 77:15, 103:8, 106:4 50:6, 50:10, 50:15, 14:4, 14:17, 15:24, 106:18, 107:1,
78:17, 82:12, 98:11, guidance [1] - 17:1 50:18, 50:25, 51:2, 16:22, 17:1, 17:8,
107:7, 107:16
105:13 guided [2] - 89:2, 89:4 63:11, 67:14, 96:25, 17:21, 18:7, 18:15,
97:1, 97:22 Honor's [2] - 82:22,
fundamental [3] - 19:1, 19:13, 19:20,
106:20
hastily [1] - 40:23
27:16, 87:5, 91:8 H 19:25, 20:10, 20:13,
Honorable [2] - 5:2,
fundamentally [2] - Hawk [1] - 3:10 21:10, 22:13, 22:23,
66:5
16:23, 93:18 half [3] - 12:11, 62:20, header [1] - 68:23 23:2, 23:9, 23:15,
HONORABLE [1] -
funding [1] - 32:21 78:4 hear [18] - 5:10, 5:12, 23:24, 24:13, 24:17,
1:11
funds [1] - 33:11 hallway [1] - 15:3 24:25, 25:7, 31:10, 25:9, 25:18, 25:22,
hoped [1] - 101:25
future [1] - 62:11 Hampton [1] - 3:13 43:24, 43:25, 49:20, 26:1, 26:6, 26:12,
53:25, 54:4, 54:5, Hopefully [1] - 54:3
Hancock [4] - 1:21, 27:1, 27:8, 27:19,
70:7, 74:16, 76:15, HORNICK [33] - 12:15,
108:4, 108:15, 28:6, 28:16, 28:24,
G 76:16, 77:3 12:17, 13:9, 19:25,
108:16 29:3, 29:11, 29:18,
heard [10] - 12:11, 20:3, 20:10, 23:9,
Gamble [4] - 65:17, hand [4] - 6:18, 32:11, 29:24, 30:14, 30:20,
18:2, 61:21, 63:3, 29:24, 34:9, 34:11,
65:21, 83:12, 91:25 57:20, 87:13 31:10, 31:24, 32:18,
71:14, 75:22, 77:17, 34:14, 34:18, 34:23,
gander [1] - 55:2 hand-delivered [1] - 33:5, 33:17, 34:9,
35:3, 35:5, 35:8,
garbled [1] - 49:17 6:18 88:21, 100:13, 106:4 34:16, 34:22, 35:18,
36:1, 36:5, 49:15,
GARRETT [1] - 2:10 Handman [2] - 4:6, Hearing [1] - 107:19 36:2, 36:23, 37:5,
56:16, 56:19, 57:2,
gatherum [1] - 98:16 24:22 HEARING [1] - 1:13 38:13, 39:9, 39:21,
57:4, 57:22, 58:10,
general [3] - 18:22, hands [3] - 46:12, hearing [7] - 5:15, 39:23, 40:21, 42:11,
58:14, 58:21, 61:23,
47:20, 96:11 81:12, 96:17 14:7, 41:7, 48:2, 42:24, 43:12, 43:20,
62:1, 62:9, 63:9,
General [1] - 82:1 handwriting [19] - 8:9, 89:6, 92:25, 100:10 44:2, 44:17, 45:8,
96:18, 96:24
generality [2] - 33:14, 8:14, 8:15, 8:16, hearings [1] - 89:7 45:11, 45:17, 46:5,
9
Hornick [19] - 2:8, 89:13, 91:8, 100:4, 93:12 84:25, 85:15, 88:14, 17:2, 22:25, 25:10,
12:15, 13:6, 13:15, 100:5, 105:2 inferences [1] - 53:14 90:13, 91:5, 93:16, 26:24, 27:17, 31:21,
19:25, 23:6, 29:24, impose [1] - 98:9 inflict [1] - 98:5 96:1, 98:10, 98:13, 37:24, 38:20, 38:23,
34:9, 34:10, 47:19, impossible [1] - 86:15 inflicting [1] - 98:8 99:2, 99:3 39:4, 41:16, 42:3,
49:15, 49:19, 56:16, improper [3] - 81:13, inform [1] - 18:9 interested [6] - 11:4, 42:21, 46:22, 46:24,
58:7, 58:22, 61:23, 86:17, 98:20 information [34] - 55:8, 92:3, 96:24, 47:16, 55:1, 56:13,
62:18, 63:9, 64:16 improperly [2] - 55:16, 5:22, 9:7, 9:8, 10:8, 97:4, 104:24 59:5, 64:24, 64:25,
Hornick's [1] - 35:19 60:8 10:10, 14:9, 18:5, interesting [1] - 55:10 65:11, 65:20, 75:11,
horse [1] - 53:9 inadvertently [1] - 21:3, 32:8, 32:21, interests [5] - 90:4, 78:23, 82:8, 83:6,
hour [4] - 12:11, 86:16 33:3, 34:4, 35:20, 93:20, 94:24, 95:2, 84:12, 87:5, 87:24,
12:19, 62:20, 78:3 Inc [4] - 2:3, 2:18, 5:4 35:21, 42:20, 45:23, 107:8 92:2, 99:4, 100:5,
hours [2] - 10:16, INC [2] - 1:4, 1:6 46:17, 50:2, 50:5, interlocutory [3] - 100:15, 101:20,
36:21 incidental [1] - 92:10 51:9, 52:10, 53:5, 84:23, 92:23, 93:8 102:6
house [1] - 20:10 inclined [2] - 38:2, 58:7, 71:15, 78:14, International [2] - 3:3, issued [1] - 35:9
housekeeping [4] - 38:3 81:5, 83:3, 84:1, 3:20 issues [19] - 16:24,
24:23, 46:14, 46:19, include [6] - 45:5, 86:14, 86:16, 91:8, internet [7] - 7:6, 18:24, 27:14, 32:4,
101:17 92:22, 97:14, 94:4, 94:6, 96:16 28:18, 58:5, 58:25, 41:4, 46:22, 51:24,
HUGHES [1] - 1:7 102:24, 106:5 informations [1] - 64:24, 84:10, 96:14 70:6, 76:19, 79:3,
Hughes [1] - 2:20 included [1] - 11:20 107:1 interrupt [5] - 11:25, 79:9, 82:22, 83:15,
human [1] - 31:1 including [1] - 106:24 informed [7] - 15:13, 14:20, 15:25, 18:6, 91:12, 98:16,
hunt [2] - 54:21, 54:22 incoherent [1] - 37:21 16:14, 17:21, 17:22, 96:18 102:16, 102:17,
hurt [2] - 43:22, 55:18 Income [1] - 33:18 24:8, 64:6 interrupted [1] - 71:8 102:19, 103:18
Husbands [3] - 4:6, incommensurables infusion [1] - 72:23 intersection [1] - iteration [2] - 8:3, 64:2
67:4, 68:4 [2] - 90:10, 91:4 initial [1] - 88:22 31:18 iterations [1] - 63:25
HUSBANDS [14] - inconsequential [1] - injunction [14] - intertwined [1] - 93:12 itself [19] - 13:25,
67:11, 67:12, 67:14, 94:22 37:23, 38:5, 38:6, interview [1] - 52:9 15:15, 15:21, 61:3,
68:2, 68:6, 68:8, inconsistent [6] - 79:1, 79:5, 87:24, investigate [6] - 17:1, 76:9, 77:24, 80:21,
68:10, 68:21, 69:1, 15:21, 78:15, 92:6, 92:14, 93:5, 29:12, 29:22, 41:10, 85:24, 85:25, 86:5,
69:9, 69:13, 69:18, 103:24, 103:25, 93:6, 94:2, 98:5, 42:19, 46:7 86:7, 87:1, 87:15,
69:20, 70:1 104:22, 105:16 99:16 investigating [3] - 89:4, 90:15, 90:16,
incorporated [1] - injunctions [1] - 38:4 62:3, 62:6, 77:25 100:14, 105:9,
105:10
I 13:7 injunctive [3] - 61:20, investigation [2] -
incorrect [2] - 30:8, 84:23, 93:3 16:24, 41:6
idea [1] - 23:8 30:9 innocent [4] - 23:20, investigations [3] - J
identification [1] - increased [1] - 84:3 36:14, 74:25, 75:1 52:17, 62:7, 91:21
74:6 inquiries [1] - 42:6 investing [2] - 32:2, James [1] - 3:14
indeed [3] - 59:19,
identified [11] - 18:19, inquiry [5] - 41:20, 33:2 January [14] - 10:6,
61:9, 72:22
31:17, 47:16, 49:14, 41:22, 42:8, 78:17, investor [1] - 35:20 10:7, 22:10, 22:14,
independent [3] -
54:20, 81:25, 95:12, 83:11 22:16, 33:25, 56:22,
104:13, 105:9, investor-related [1] -
96:4, 101:13, insight [1] - 89:12 56:24, 57:5, 57:14,
105:15 35:20
101:21, 102:4 57:15, 57:20, 58:9,
indicate [2] - 44:19, insignificant [1] - investors [1] - 32:13
identifiers [1] - 67:23 68:22
60:2 52:17 invitation [1] - 72:2
identify [5] - 5:8, 14:5, jetsam [1] - 99:7
indicated [4] - 5:7, instance [2] - 25:16, invited [1] - 43:5
42:9, 71:13, 72:5 30:22 John [13] - 1:16, 1:22,
18:1, 77:23, 92:24 invoke [1] - 88:14
identifying [4] - 38:11, 2:8, 12:15, 19:13,
indicates [4] - 10:5, instances [1] - 65:21 invokes [2] - 85:6,
50:4, 51:9, 101:13 19:25, 29:24, 34:9,
13:23, 28:9, 69:3 institutional [1] - 85:15
illegally [1] - 81:12 49:15, 56:16, 58:22,
indication [2] - 54:15, 41:17 involved [8] - 12:25,
illegible [1] - 68:14 61:23, 63:9
75:25 instrumentally [1] - 42:8, 43:10, 46:11,
imagaine [1] - 46:17 Jose [1] - 65:3
indications [1] - 45:25 62:19 48:3, 70:20, 74:20,
Joseph [2] - 1:16,
immediate [4] - 81:21, indirectly [1] - 102:13 integrity [3] - 41:17, 95:4
84:20, 96:8, 103:9 1:22
individual [9] - 27:4, 55:14, 82:1 involves [3] - 21:4,
immediately [2] - journal [8] - 9:23,
31:3, 73:7, 74:1, intellectual [1] - 90:16 67:5, 98:24
28:7, 79:7 29:25, 34:23, 44:10,
74:6, 74:7, 74:19, intend [2] - 77:16, irreparable [1] - 84:20
44:14, 56:22, 85:12,
impact [1] - 88:10 77:9, 95:17 102:7 irrespective [4] -
88:5
implicated [1] - 83:15 individual's [4] - intent [1] - 87:19 10:23, 38:2, 38:5,
Journal [4] - 89:2,
importance [2] - 71:16, 73:11, 73:13, intention [4] - 75:17, 60:13
91:17, 105:11,
27:21, 91:12 74:3 82:13, 103:2, 104:18 issuance [3] - 32:3,
106:23
important [13] - 6:10, individuals [3] - inter [1] - 63:2 32:5, 94:2
journalism [8] - 80:4,
10:4, 54:5, 54:6, 31:16, 46:20, 84:4 interest [15] - 11:12, issue [40] - 12:21,
80:7, 81:11, 84:4,
73:10, 85:21, 86:10, inextricably [1] - 33:16, 39:15, 39:17, 15:2, 16:17, 16:25,
10
90:20, 93:22, 98:24 less [3] - 31:22, 37:6, 80:7, 80:15, 81:1,
L M
journalist [2] - 6:23, 43:21 86:5, 90:25, 91:18,
78:9 label [4] - 53:11, letters [1] - 48:9 MA [7] - 1:17, 1:23, 91:19, 91:20, 95:11,
journalistic [1] - 82:19 68:22, 84:10, 84:24 level [2] - 87:19, 94:23 2:7, 3:4, 3:15, 3:21, 106:23
journalists [2] - 60:12, laboring [1] - 77:8 lie [1] - 90:3 4:4 matter [26] - 11:14,
61:9 language [1] - 67:5 life [1] - 94:18 machine [1] - 69:10 17:18, 20:16, 21:19,
judge [2] - 80:17, large [1] - 49:5 light [4] - 27:15, Madison [1] - 2:15 38:1, 41:15, 41:17,
81:16 large-enough [1] - 42:17, 52:16, 104:5 MAFFEI [1] - 2:6 43:3, 46:14, 46:19,
Judge [10] - 5:5, 35:9, 49:5 likelihood [3] - 92:16, magazine [28] - 6:3, 55:23, 66:12, 86:25,
35:21, 61:23, 67:4, larger [4] - 22:7, 59:6, 93:10, 94:20 6:6, 6:19, 61:11, 91:25, 94:6, 96:12,
70:7, 75:18, 75:23, 90:16, 90:22 likely [3] - 59:15, 67:18, 67:19, 68:14, 97:6, 97:8, 101:11,
77:12, 98:16 last [8] - 14:22, 52:3, 95:10, 103:23 69:14, 69:15, 69:20, 105:17, 105:20,
judges [3] - 18:14, 54:2, 60:22, 61:10, limited [1] - 90:6 69:21, 70:2, 70:19, 105:21, 106:19,
83:25, 102:20 73:2, 75:11, 89:14 Lindsey [1] - 9:10 71:11, 71:18, 72:25, 107:5, 108:8
judgment [18] - 11:20, late [1] - 88:23 line [6] - 30:23, 33:18, 74:13, 77:10, 80:9, matters [9] - 25:8,
25:11, 39:14, 71:9, launch [1] - 54:21 72:13, 73:7, 97:11, 81:16, 83:5, 83:24, 37:13, 61:16, 93:16,
72:15, 73:16, 73:25, laundry [1] - 66:11 100:8 86:2, 90:11, 91:2, 94:22, 97:2, 98:14,
74:13, 74:14, 74:24, Laura [2] - 4:6, 24:22 Line [2] - 72:9, 72:11 97:22, 101:21, 102:3 99:1, 100:22
80:10, 82:11, 82:14, law [11] - 5:23, 18:8, lineage [1] - 45:15 magazine's [1] - 73:9 mature [1] - 94:18
85:4, 91:1, 95:10, 18:10, 37:20, 38:4, Lippman [1] - 97:19 magazines [1] - 80:15 MCCOLLUM [1] - 1:7
97:12, 97:25 74:19, 81:20, 88:17, list [4] - 14:7, 39:20, mail [4] - 19:12, 40:10, McCollum [1] - 2:20
judgmental [1] - 37:7 89:3, 89:11, 95:19 66:11, 103:10 42:23, 57:6 mean [22] - 16:19,
judgments [3] - 26:23, Law [1] - 65:2 listen [1] - 6:14 mailed [4] - 47:4, 47:5, 32:4, 37:18, 39:11,
84:5, 90:7 lawfully [1] - 6:23 litigation [15] - 22:17, 47:6, 57:9 42:4, 43:1, 45:9,
judicial [2] - 13:18, lawyer [4] - 46:10, 26:10, 31:5, 36:15, maintain [1] - 40:20 48:8, 48:15, 51:19,
82:1 54:11, 102:20, 39:16, 75:1, 85:20, maintained [1] - 57:10 74:10, 76:18, 81:17,
July [1] - 42:24 102:21 87:2, 89:2, 89:16, major [1] - 27:23 92:21, 93:2, 94:3,
jumping [1] - 28:4 lawyers [2] - 40:15, 92:12, 94:14, 98:14, manageable [1] - 90:6 97:25, 99:18,
jurisdiction [4] - 38:7, 76:13 100:3, 106:13 manner [4] - 29:7, 100:19, 100:22,
87:7, 87:8, 92:8 litodes [1] - 78:15 74:10, 75:23, 93:2 103:5, 104:9
layer [1] - 88:16
jurisprudence [1] - live [1] - 53:17 Margaret [1] - 2:9 mean-spirited [1] -
lead [1] - 82:18
91:14 LLC [1] - 1:8 margin [2] - 50:23, 97:25
leading [1] - 89:3
justice [1] - 81:25 LLP [10] - 2:6, 2:10, 51:11 meaning [4] - 40:9,
leak [1] - 52:17
justifiable [1] - 105:21 2:15, 2:23, 3:2, 3:8, margins [1] - 51:7 41:19, 78:5, 78:18
learn [1] - 19:20
justification [1] - 98:8 3:11, 3:14, 3:16, MARK [1] - 1:6 meaningful [1] - 55:12
learned [3] - 10:15,
justify [2] - 84:24, 96:1 3:19 Mark [10] - 2:19, 3:2, means [4] - 86:17,
67:7, 104:23
loaded [1] - 22:17 7:14, 7:23, 9:4, 92:18, 96:14, 99:14
learning [1] - 59:9
meant [4] - 26:18,
K least [38] - 10:9, local [1] - 24:19 11:23, 19:13, 21:18,
located [2] - 42:18, 44:22, 49:23 26:20, 67:20, 94:15
10:17, 12:1, 13:22,
keep [5] - 10:2, 39:1, 78:20 marked [3] - 22:15, measured [1] - 84:6
14:14, 14:21, 15:16,
86:18, 94:14, 102:2 Loeb [2] - 97:18, 38:17, 38:25 Mechanical [1] - 1:24
16:14, 18:15, 23:20,
kept [4] - 21:18, 41:19, 25:18, 26:23, 29:4, 97:19 marketplace [3] - mechanism [2] -
57:14, 91:19 36:7, 42:6, 50:9, look [12] - 6:21, 25:17, 33:11, 33:22, 34:7 24:14, 87:1
key [2] - 6:9, 91:11 52:23, 56:14, 60:1, 30:21, 30:22, 33:17, marking [1] - 22:18 media [2] - 46:9, 82:3
kind [15] - 21:5, 23:21, 62:22, 63:4, 64:1, 39:13, 40:5, 56:14, markings [1] - 44:18 meet [1] - 35:11
30:4, 31:7, 32:11, 72:22, 73:16, 74:12, 57:11, 59:9, 97:2, Marsh [2] - 2:23, 3:17 member [5] - 20:9,
32:12, 42:20, 73:17, 74:13, 82:16, 85:4, 100:15 Mass [1] - 24:23 24:22, 24:24, 68:16,
79:12, 80:4, 81:19, 87:15, 89:8, 91:1, looked [6] - 8:8, 13:4, MASSACHUSETTS 107:12
96:1, 98:16, 99:8, 94:16, 95:15, 97:18, 28:6, 42:16, 42:17, [1] - 1:1
memorandum [1] -
105:19 99:9, 100:11, 105:12 57:23 match [4] - 8:20, 8:21, 101:2
kinds [1] - 94:7 leave [2] - 55:22, looking [3] - 34:15, 50:12 Men [1] - 97:20
KNIGHT [1] - 3:14 106:13 42:14, 48:23 material [7] - 52:8, Menlo [3] - 2:24, 3:12,
knowledge [3] - leaving [1] - 47:23 loudly [1] - 54:8 80:6, 84:2, 90:22, 3:17
28:22, 29:9, 52:7 led [1] - 29:4 LOVETT [1] - 5:2 92:22, 102:10, mentioned [2] - 45:21,
known [4] - 51:14, left [1] - 53:1 Lovett [2] - 5:7, 13:21 104:14 60:16
51:16, 71:19, 71:24 legal [6] - 30:14, luck [1] - 98:25 materials [24] - 9:20, mere [1] - 84:24
knows [1] - 63:17 30:17, 37:7, 37:21, lucky [1] - 98:22 11:18, 11:21, 22:11, Meredith [1] - 2:9
74:14, 86:25 Luke [1] - 6:23 24:10, 36:11, 37:17, merely [5] - 78:12,
legally [1] - 81:12 40:20, 41:9, 41:18, 83:19, 85:9, 85:19,
lend [1] - 80:21 52:14, 61:2, 61:4, 89:4
11
merits [5] - 76:6, 79:10, 106:24 36:23, 36:25, 37:4, 107:16 82:17
92:17, 92:18, 93:10 MOSKOVITZ [1] - 1:7 38:13, 39:3, 39:8, MS [19] - 6:18, 24:17, Net [1] - 33:18
metadata [7] - 9:8, most [10] - 21:2, 39:20, 39:23, 40:21, 24:19, 25:1, 66:2, never [6] - 5:23, 44:12,
9:9, 10:5, 28:9, 39:15, 75:21, 89:13, 41:3, 41:25, 42:11, 67:11, 67:14, 68:2, 52:7, 52:9
42:18, 45:23 90:6, 91:16, 95:1, 42:13, 43:7, 43:12, 68:6, 68:8, 68:10, Nevertheless [2] -
metaphors [1] - 40:7 97:20, 98:15, 102:20 43:14, 43:20, 44:2, 68:21, 69:1, 69:9, 37:18, 100:25
microphone [1] - 54:9 motion [23] - 11:19, 44:16, 44:21, 44:25, 69:13, 69:18, 69:20, nevertheless [1] -
Microsoft [1] - 9:12 11:20, 12:24, 12:25, 45:7, 45:11, 45:14, 70:1, 101:6 11:10
Middlefield [1] - 3:11 13:3, 13:15, 35:8, 45:17, 45:20, 45:25, MS.RITVA [3] - 24:22, New [4] - 2:11, 2:16,
Midwest [1] - 9:2 35:12, 35:13, 35:19, 46:4, 46:15, 47:2, 25:5, 101:9 4:8, 89:15
might [17] - 32:1, 76:9, 76:11, 77:11, 47:6, 47:12, 47:25, multitude [1] - 40:7 new [6] - 8:6, 31:23,
36:16, 42:5, 48:19, 78:21, 82:10, 82:11, 48:10, 48:16, 48:19, must [2] - 84:22, 50:2, 50:3, 68:19
48:20, 49:7, 61:18, 91:13, 98:6, 100:1, 48:22, 48:25, 49:2, 93:19 news [1] - 71:25
70:18, 76:25, 77:3, 100:6, 100:24, 49:4, 49:10, 49:15, mute [1] - 75:6 newsman's [1] - 60:4
82:7, 87:20, 95:9, 102:12 49:18, 49:22, 50:17, mystery [1] - 66:13 newspapers [1] - 32:1
95:18, 96:18, 97:13, Motion [1] - 34:14 50:20, 50:22, 51:1, next [8] - 2:25, 3:23,
51:5, 51:18, 51:23,
97:22 MOTION [1] - 1:13 N 21:17, 33:19, 62:20,
Miller [1] - 39:2 motions [1] - 82:14 52:1, 52:24, 53:3, 72:4, 100:17, 104:8
million [1] - 72:23 mouth [1] - 54:9 53:12, 53:19, 54:1, name [21] - 8:23, 24:2, night [1] - 14:22
mind [8] - 26:24, 75:3, move [2] - 15:12, 54:2, 54:3, 54:8, 25:12, 25:13, 26:9, Nobody's [1] - 23:7
85:23, 92:6, 92:13, 103:19 54:12, 54:15, 55:5, 39:2, 67:9, 72:16, non [2] - 92:8, 93:25
92:15, 93:18, 101:21 moving [7] - 62:25, 56:16, 56:19, 57:2, 73:6, 73:11, 73:13, non-moving [1] -
minimize [1] - 74:11 92:19, 93:11, 93:25, 57:4, 57:22, 58:10, 74:3, 75:3, 85:9, 93:25
minimum [1] - 94:12 94:2, 96:5, 98:3 58:14, 58:19, 58:21, 95:13, 95:14, 97:14, non-party [1] - 92:8
MR [285] - 5:14, 6:8, 59:2, 59:4, 59:13, 97:23, 100:8, 102:3,
mirror [1] - 98:4 nondisclosure [3] -
6:17, 6:21, 7:8, 8:5, 59:18, 59:24, 60:7, 102:23
mirror-like [1] - 98:4 33:5, 33:6, 52:18
8:14, 8:23, 9:2, 9:22, 60:10, 60:18, 61:7, named [1] - 9:10
misrepresentation [1] nonpublic [2] - 73:22,
10:15, 11:2, 11:15, 61:23, 62:1, 62:9, names [8] - 5:10, 14:2,
- 75:24 73:23
11:22, 12:3, 12:10, 63:9, 63:15, 63:16, 25:14, 25:15, 36:15,
missed [1] - 76:4 notations [2] - 66:22,
12:15, 12:17, 13:9, 63:19, 63:22, 63:23, 49:13, 71:16, 85:6
missing [1] - 15:3 67:25
13:14, 14:4, 14:17, 64:5, 64:10, 64:14, Napster [1] - 71:24
mistakes [1] - 94:20 note [1] - 99:25
14:20, 14:25, 15:24, 64:18, 64:20, 65:9, Narendra [3] - 49:11,
misunderstanding [1] noted [1] - 65:6
16:3, 16:7, 16:11, 65:14, 65:19, 66:1, 50:12, 52:25
- 14:21 notes [18] - 8:1, 8:2,
16:20, 16:22, 17:8, 66:8, 66:11, 66:18, Narendra's [3] - 8:10,
mitigated [1] - 24:16 8:4, 8:7, 8:15, 42:18,
17:13, 17:16, 17:20, 66:24, 67:3, 70:7, 48:11, 50:8
Moakley [2] - 1:16, 49:13, 49:25, 50:22,
18:11, 18:14, 18:25, 70:9, 70:13, 70:17, Nathan [1] - 3:8
1:22 51:6, 63:10, 67:18,
19:3, 19:6, 19:12, 70:21, 71:3, 71:7, nature [2] - 28:18,
models [1] - 34:3 67:19, 67:21, 68:3,
19:17, 19:20, 19:24, 71:10, 71:18, 71:23, 88:7
modifications [1] - 69:15, 100:11, 108:8
19:25, 20:3, 20:10, 72:4, 72:8, 72:10, necessarily [1] - 98:4
57:23 nothing [2] - 100:13,
20:13, 20:16, 20:23, 72:12, 72:15, 72:18, necessary [5] - 41:12,
modified [2] - 38:7, 104:22
21:1, 21:10, 21:12, 73:2, 73:6, 73:9, 99:18, 102:9,
57:19 73:15, 73:21, 74:10, notice [4] - 7:18,
21:17, 21:23, 22:2, 103:12, 104:7
modify [2] - 38:3 75:7, 75:11, 75:18, 13:18, 86:20, 86:24
22:5, 22:9, 22:13, necessity [1] - 56:7
moment [21] - 6:14, 76:4, 76:9, 76:11, noticed [2] - 13:22,
22:23, 23:2, 23:9, need [20] - 38:14,
7:5, 10:19, 10:22, 76:18, 76:23, 77:12, 67:25
23:15, 23:23, 24:1, 38:15, 40:2, 40:4,
13:1, 15:11, 20:24, 77:16, 77:19, 77:22, notified [1] - 24:3
24:4, 24:13, 25:9, 41:5, 41:6, 42:9,
25:22, 27:5, 34:10, 78:22, 79:8, 79:12, November [1] - 1:18
25:18, 25:22, 26:1, 42:19, 42:22, 46:7,
37:12, 41:1, 43:16, 79:18, 79:21, 80:23, nuance [1] - 15:22
26:6, 26:12, 27:1, 46:9, 49:20, 62:12,
44:23, 53:22, 66:15, 81:4, 81:23, 82:20, number [16] - 7:10,
27:3, 27:8, 27:12, 62:13, 77:1, 85:11,
70:15, 81:1, 86:22, 83:1, 84:11, 85:5, 7:13, 17:23, 18:2,
28:6, 28:16, 28:22, 97:16, 100:2, 101:7,
91:12 85:25, 86:6, 86:20, 28:4, 33:19, 33:21,
29:2, 29:11, 29:18, 103:9
Monday [1] - 70:21 87:21, 88:3, 88:13, 34:16, 35:3, 39:20,
29:24, 30:14, 30:19, needed [1] - 34:8
money [5] - 32:3, 88:23, 96:18, 96:24, 43:19, 49:25, 50:1,
30:24, 31:10, 31:14, needs [7] - 42:1,
33:23, 33:24 99:24, 101:16, 51:13, 64:7, 102:4
31:24, 32:7, 32:18, 42:16, 42:17, 78:8,
months [1] - 7:15 101:20, 101:23, Number [4] - 43:21,
32:24, 33:4, 33:9, 101:14, 105:7,
moot [2] - 12:25, 102:2, 103:4, 51:4, 51:5, 51:7
33:17, 33:21, 34:2, 105:19
13:16 103:17, 104:2, numbers [2] - 11:23,
34:9, 34:11, 34:14, Neel [4] - 2:22, 3:16,
Morality [1] - 89:18 104:15, 105:1, 21:5
34:18, 34:22, 34:23, 12:22, 49:15
Moreover [2] - 93:14, 105:22, 106:7, NY [2] - 2:16, 4:8
35:3, 35:5, 35:8, negligence [4] -
93:16 35:18, 36:1, 36:5, 106:16, 106:18,
55:15, 81:12, 82:16,
morning [3] - 77:17, 106:22, 107:7,
12
Official [3] - 1:22, 54:17 overhearings [1] - 56:4, 74:6, 85:7,

O
108:4, 108:17 opened [1] - 68:17 91:23 89:19, 104:24
O'Brien [26] - 6:23, old [7] - 21:9, 21:12, opinion [2] - 64:21, overview [1] - 92:4 particulars [1] -
7:21, 16:1, 16:2, 31:23, 31:25, 34:15, 65:3 own [14] - 21:19, 100:18
39:3, 39:4, 53:4, 35:1, 35:5 opinions [2] - 65:4, 25:11, 43:2, 53:4, parties [51] - 11:16,
53:9, 57:25, 58:18, OLIVER [1] - 2:14 80:15 53:15, 53:16, 55:15, 12:1, 18:23, 24:16,
59:12, 60:16, 60:25, omnium [1] - 98:16 opportunities [1] - 69:7, 84:5, 89:12, 36:13, 38:9, 38:11,
61:18, 63:11, 67:15, omnium-gatherum [1] 90:21 91:1, 93:20, 98:18, 42:7, 43:5, 43:25,
67:17, 68:12, 69:7, - 98:16 opportunity [8] - 37:8, 100:18 46:12, 47:1, 52:13,
69:23, 70:10, 76:25, once [5] - 40:9, 46:20, 79:2, 79:3, 84:4, 52:19, 53:24, 54:18,
77:3, 101:7, 104:14, 87:18, 97:20, 105:8 91:7, 92:25, 93:7, P 55:21, 55:22, 55:24,
105:17 one [81] - 6:9, 7:2, 7:4, 104:12 56:1, 56:20, 62:2,
O'Brien's [7] - 60:3, 7:9, 7:12, 10:12, oppose [1] - 67:1 p.m [5] - 1:18, 30:25, 62:14, 62:19, 62:24,
62:25, 67:19, 68:3, 10:22, 11:16, 11:24, opposed [1] - 31:11 66:4, 107:19 63:1, 63:3, 76:15,
77:8, 78:16, 104:22 11:25, 13:20, 13:22, oral [1] - 46:25 Page [3] - 72:10, 78:3, 79:2, 85:7,
oath [2] - 7:21, 60:24 16:13, 17:24, 18:15, orally [2] - 89:1, 100:5 108:6 86:18, 88:1, 88:20,
obey [1] - 38:6 21:8, 22:19, 23:1, order [37] - 5:18, page [13] - 2:25, 3:23, 92:3, 92:24, 94:11,
object [1] - 37:13 24:12, 25:13, 26:4, 11:17, 17:18, 30:17, 6:12, 6:21, 9:7, 94:13, 99:19, 99:23,
objection [3] - 23:23, 29:5, 29:6, 29:13, 35:9, 37:25, 38:1, 25:17, 28:4, 71:14, 100:7, 100:16,
27:23, 30:10 29:19, 31:2, 37:20, 38:3, 43:4, 43:6, 72:5, 72:7, 74:9, 101:4, 104:1, 104:4,
obligated [1] - 98:10 39:25, 40:6, 42:1, 43:9, 46:14, 46:16, 100:8 104:6, 104:12,
obligation [6] - 18:16, 43:6, 43:15, 43:19, 55:17, 56:12, 64:24, pages [4] - 25:19, 105:14, 105:21,
60:12, 90:9, 95:24, 44:11, 44:21, 44:22, 79:5, 82:7, 82:9, 26:2, 45:1, 79:15 107:11, 107:15
105:9, 105:10 44:25, 45:16, 45:21, 82:15, 86:14, 86:21, Pages [1] - 17:25 parties' [1] - 37:7
observation [4] - 46:6, 47:25, 49:6, 86:24, 87:1, 87:3, paging [1] - 13:21 parts [1] - 50:14
29:13, 58:8, 58:15, 50:13, 50:15, 50:22, 87:9, 87:16, 93:4, pains [1] - 71:1 party [17] - 10:20,
89:21 50:24, 51:1, 51:6, 93:14, 98:2, 98:19, paper [9] - 57:24, 23:19, 23:20, 26:8,
observations [2] - 52:12, 53:16, 56:21, 98:20, 98:23, 58:1, 58:23, 58:24, 26:9, 37:25, 63:5,
90:18, 99:17 58:7, 58:8, 59:25, 100:21, 103:11, 69:4, 69:13, 69:14, 92:8, 92:19, 93:7,
obtain [3] - 52:4, 63:5, 64:2, 64:23, 105:8 69:20, 73:4 93:11, 93:13, 93:25,
60:15, 93:8 66:24, 69:6, 71:11, ordering [2] - 106:15 Papers [1] - 89:16 94:2, 98:4
obtained [5] - 6:23, 77:23, 80:15, 82:16, Orders [1] - 11:1 papers [9] - 6:2, 10:9, pass [3] - 10:23,
53:5, 60:5, 81:2, 83:25, 84:2, 84:18, orders [6] - 41:18, 23:17, 40:23, 40:25, 52:10, 65:24
81:5 85:4, 85:21, 86:10, 82:2, 87:10, 92:11, 53:9, 64:22, 100:3, passing [1] - 85:22
obviously [11] - 8:16, 87:18, 88:18, 89:12, 98:18, 101:3 100:6 past [6] - 9:3, 10:16,
26:19, 38:1, 51:20, 90:10, 90:14, 93:22, organization [1] - 84:8 paragraph [1] - 6:22 21:14, 29:6, 94:19
66:16, 74:3, 75:19, 95:23, 96:6, 99:9, organized [1] - 42:25 parallel [2] - 41:14, Patrick [1] - 19:13
84:5, 99:17, 103:20, 101:16, 101:20 original [1] - 52:19 63:7 Pause [2] - 25:25,
105:20 One [15] - 1:17, 1:23, originally [5] - 28:24, parents' [1] - 17:23 27:7
Obviously [1] - 106:22 3:3, 3:20, 4:4, 10:4, 49:25, 53:8, 63:23, Park [3] - 2:24, 3:12, pause [2] - 7:5, 15:11
occasion [5] - 89:17, 16:24, 56:19, 64:10, 63:24 3:17 pay [2] - 32:3, 69:10
99:20, 104:10 64:11, 66:16, 66:21, originals [2] - 15:19, Parmet [1] - 57:5 pdf [16] - 9:6, 9:15,
occur [2] - 90:6, 80:13, 91:6, 100:10 51:20 part [24] - 11:5, 11:6, 9:21, 22:12, 56:8,
106:12 ones [2] - 12:6, 39:15 originate [1] - 46:1 11:8, 12:13, 13:11, 57:4, 57:8, 57:9,
OF [1] - 1:1 online [39] - 5:17, originated [2] - 45:7, 23:5, 26:19, 32:18, 57:13, 57:14, 57:16,
offer [5] - 14:15, 44:1, 7:12, 7:14, 8:2, 9:4, 47:3 35:19, 41:5, 50:13, 58:12, 59:6, 59:7,
59:11, 60:22, 95:23 9:16, 9:23, 10:3, origination [1] - 47:10 50:15, 51:2, 54:22, 69:1
offered [2] - 37:17, 11:23, 12:13, 16:13, ORRICK [2] - 2:23, 72:20, 72:24, 73:17, Pearl [1] - 104:10
95:22 16:16, 16:19, 17:25, 3:16 74:15, 82:16, 84:19, penalties [1] - 71:2
offers [4] - 53:4, 21:18, 27:25, 29:1, otherwise [1] - 88:22 104:18, 104:20, pending [2] - 11:19,
53:10, 83:24, 89:21 29:21, 34:23, 38:19, 105:11 12:24
ought [5] - 31:3,
44:10, 44:13, 44:22, parte [1] - 42:8 Pentagon [1] - 89:15
office [5] - 6:25, 14:2, 54:17, 54:22, 56:1,
49:25, 56:21, 57:19, participate [1] - 52:8 people [14] - 32:3,
53:1, 55:15, 78:19 101:2
66:24, 67:17, 68:11, particular [12] - 10:4, 33:10, 38:6, 39:12,
Office [10] - 15:4, ourselves [1] - 12:19
68:15, 69:24, 70:20, 11:12, 18:19, 18:20, 39:25, 40:2, 48:2,
16:6, 68:7, 78:4, outlined [1] - 61:12
79:16, 79:23, 85:12, 23:25, 24:1, 61:17, 49:1, 49:8, 49:13,
78:5, 78:6, 78:10, outset [1] - 5:13
88:5, 96:10 75:3, 82:8, 85:2, 74:11, 88:9, 94:8,
82:17, 104:19, 107:2 outside [2] - 15:20,
open [3] - 18:21, 88:6, 95:14 94:17
Offices [1] - 82:17 98:19
54:17, 100:10 particularly [8] - people's [1] - 25:14
offices [2] - 40:15, overcome [1] - 94:24
open-ended [1] - 24:15, 36:12, 36:16, per [1] - 31:25
107:4 overheard [1] - 91:22
13
percipient [1] - 69:24 62:2, 62:3, 62:5, 92:22 previous [1] - 34:5 proliferates [1] - 40:4
percussion [1] - 93:3 62:15 postings [3] - 38:24, primarily [1] - 47:13 proliferation [1] -
perfect [1] - 5:20 Plate [1] - 107:12 39:5 primary [3] - 23:23, 28:11
performance [1] - play [1] - 29:22 potential [6] - 10:13, 86:5, 90:22 prompt [2] - 36:20,
34:2 playing [1] - 66:19 28:11, 32:13, 33:10, primary-source [2] - 99:21
performing [1] - 21:14 pleadings [1] - 101:1 39:7, 43:23 86:5, 90:22 promptly [7] - 11:10,
perhaps [14] - 15:22, point [38] - 7:9, 9:21, Potentially [1] - 45:14 principal [1] - 79:4 89:1, 89:5, 89:6,
36:14, 37:13, 37:23, 13:23, 16:23, 18:8, power [2] - 10:25, principle [1] - 97:15 92:2, 99:20, 100:16
41:7, 43:2, 47:22, 25:3, 25:6, 27:17, 97:21 principled [1] - 99:13 pronounce [1] - 5:23
53:15, 61:5, 89:13, 29:2, 30:10, 30:22, practicality [2] - 99:7, principles [2] - 74:14, properly [5] - 5:10,
90:23, 97:13, 98:15 40:18, 41:3, 45:21, 99:12 90:15 80:11, 87:11, 101:3,
Perhaps [1] - 73:25 46:9, 47:10, 53:3, practically [1] - 32:22 printout [1] - 45:15 107:4
period [1] - 35:25 53:20, 54:2, 57:10, practice [2] - 15:15, privacy [4] - 86:9, property [12] - 6:1,
perjury [1] - 71:2 58:3, 61:8, 61:24, 39:11 91:6, 91:7, 91:9 79:23, 79:24, 80:21,
permission [2] - 81:14, 81:23, 82:21, practices [1] - 33:1 private [20] - 20:16, 81:20, 81:21, 83:7,
24:24, 67:6 82:22, 82:23, 83:10, pre [3] - 28:10, 48:23, 20:19, 21:19, 21:20, 84:9, 84:25, 88:14,
permit [2] - 24:15, 85:10, 85:19, 86:10, 83:6 27:9, 27:13, 27:18, 90:17, 91:5
47:21 86:21, 87:22, 87:23, pre-existed [2] - 29:5, 30:7, 32:20, proportion [1] - 17:19
permits [2] - 90:24, 88:4, 93:5, 105:23 28:10, 83:6 65:11, 79:13, 79:23, proposal [4] - 43:24,
92:9 pointed [1] - 73:25 pre-existing [1] - 83:4, 85:1, 85:13, 101:5, 104:7
permitting [1] - pointedly [1] - 43:2 48:23 92:1, 94:6, 94:8, propose [3] - 38:12,
105:13 pointing [1] - 107:5 precipitously [1] - 94:15 62:10, 62:14
person [10] - 24:2, points [5] - 14:8, 18:7, 100:23 privilege [2] - 60:14, proposition [2] -
30:25, 37:25, 58:13, 56:19, 80:24, 89:22 precisely [1] - 56:7 95:20 83:22, 83:23
71:19, 71:23, 85:13, policy [1] - 94:7 predecessor [2] - privileged [1] - 60:4 proprietary [2] - 94:4,
95:11, 95:21, 102:19 poor [1] - 68:13 14:23, 17:22 probable [2] - 8:21, 96:4
person's [2] - 25:13, pop [1] - 71:25 preexist [1] - 48:2 50:12 PROSKAUER [2] -
91:1 portion [2] - 31:9, preference [1] - 70:22 problem [8] - 20:5, 3:2, 3:19
personal [6] - 67:23, 37:13 preliminarily [3] - 26:21, 33:8, 39:7, prospective [1] -
79:24, 91:9, 94:9, position [5] - 7:18, 50:9, 52:3, 63:1 40:4, 52:19, 84:18, 37:22
94:10, 96:12 34:6, 38:21, 76:3, preliminary [11] - 104:16 protect [2] - 5:21, 91:7
personally [1] - 51:9 98:23 56:14, 78:25, 79:1, problematic [2] - 80:5, protected [5] - 81:7,
personnel [2] - 77:25, positions [4] - 34:5, 79:5, 87:24, 92:6, 105:11 81:9, 86:16, 86:19,
78:7 37:7, 52:20, 76:20 92:14, 93:4, 93:6, problems [3] - 8:12, 107:8
perspective [2] - possession [4] - 18:5, 99:16, 103:9 32:16, 66:16 protecting [2] - 91:21,
27:19, 90:12 24:10, 52:7, 75:13 premise [1] - 7:19 procedural [2] - 89:5, 91:22
persuade [1] - 88:21 possible [10] - 11:10, prepared [7] - 17:19, 90:3 protection [8] - 5:25,
persuasive [1] - 97:14 13:3, 15:18, 29:23, 38:9, 61:16, 63:14, proceed [1] - 62:24 20:20, 80:20, 83:19,
Peter [2] - 2:13, 43:14 54:9, 69:23, 70:1, 76:20, 83:22, 103:3 proceeded [1] - 27:15 85:7, 88:17, 102:9,
pfd [1] - 56:24 77:4, 77:5, 107:9 presence [1] - 92:3 proceeding [1] - 18:21 103:7
ph [1] - 8:23 possibly [4] - 13:9, present [6] - 20:6, proceedings [3] - 5:7, protective [24] - 5:18,
phase [1] - 52:18 14:21, 40:22, 71:16 47:23, 75:17, 78:9, 22:1, 95:5 11:17, 37:25, 38:1,
phone [6] - 5:8, 17:23, post [6] - 24:9, 75:15, 78:14, 87:14 process [8] - 38:10, 38:3, 43:9, 46:13,
24:6, 43:19, 66:7, 76:1, 81:17, 86:4, presented [7] - 85:2, 39:16, 55:14, 59:22, 46:16, 55:17, 82:2,
67:4 103:2 85:3, 90:8, 91:3, 60:12, 82:1, 94:16, 82:7, 82:9, 82:15,
php [7] - 56:25, 57:2, posted [27] - 5:17, 96:15, 97:5, 98:1 104:20 86:14, 86:20, 86:24,
57:9, 57:11, 57:12, 7:12, 7:14, 8:7, 9:4, presenting [1] - 99:1 Procter [4] - 65:17, 87:1, 87:9, 87:16,
57:16 9:5, 9:16, 11:21, presently [1] - 100:20 65:21, 83:12, 91:24 93:14, 100:21,
pick [2] - 66:17, 104:9 16:12, 16:15, 16:18, president [1] - 94:20 produce [1] - 39:15 101:3, 103:11, 105:8
picked [1] - 91:24 28:9, 28:19, 29:7, press [3] - 42:24, produced [16] - 8:9, proves [1] - 62:9
Place [2] - 3:3, 3:20 29:25, 30:10, 36:12, 42:25, 83:17 10:7, 22:8, 22:9, provide [16] - 6:9,
place [4] - 9:24, 53:16, 38:19, 48:6, 49:24, pressed [3] - 11:4, 22:14, 22:15, 45:2, 14:15, 35:11, 40:14,
82:2, 97:2 50:6, 51:8, 61:2, 11:5, 85:3 47:8, 49:14, 49:24, 53:10, 61:1, 64:8,
placed [1] - 41:13 61:4, 67:19, 75:20, pressing [1] - 33:13 50:11, 50:16, 51:2, 64:11, 65:4, 88:11,
placing [1] - 5:16 96:16 presumably [1] - 56:23, 56:24, 83:20 90:9, 90:12, 93:2,
Plaintiff [2] - 1:4, 2:3 posthumous [1] - 22:17 production [1] - 8:5 99:19, 101:4, 103:23
89:17 Presuming [1] - 81:4 professional [1] - provided [6] - 5:6,
plaintiff [1] - 65:1
posting [9] - 7:6, 8:2, pretermit [1] - 100:22 18:15 15:10, 16:5, 45:1,
plaintiffs [1] - 52:2
39:11, 65:11, 80:7, pretty [4] - 6:12, Professor [1] - 102:20 67:18, 82:24
plan [9] - 47:24, 55:12,
80:11, 84:9, 84:14, 37:21, 49:6, 87:8 progress [1] - 79:9 Providence [3] - 89:2,
55:23, 56:2, 56:20,
14
91:17, 105:11 questions [6] - 39:20, 54:19, 55:3, 55:8, reference [12] - 13:7, 103:21, 103:22,
provident [1] - 93:8 61:14, 74:21, 77:17, 61:10, 69:25, 78:3, 22:11, 31:2, 45:6, 104:21
provides [5] - 15:22, 89:20, 89:25 91:5 73:10, 90:14, 97:3, reported [2] - 72:22,
80:13, 80:14, 84:1, quick [5] - 26:17, 28:1, reason [13] - 17:2, 97:10, 99:8, 101:10 97:18
103:25 33:15, 48:17, 64:5 28:10, 39:23, 40:21, referenced [2] - 31:1, Reporter [3] - 1:22,
providing [3] - 93:7, quickly [9] - 13:22, 41:9, 43:10, 54:23, 91:23 108:4, 108:17
93:22, 102:17 29:22, 38:22, 40:22, 62:21, 65:9, 74:5, references [1] - 55:18 reporter [11] - 5:9,
provisional [2] - 40:23, 67:7, 78:1, 79:6, 93:11, 97:11 referred [4] - 13:17, 15:1, 54:6, 66:17,
52:13, 92:25 94:18, 100:18 reasonable [5] - 55:1, 65:16, 65:17, 98:4 67:10, 69:21, 70:2,
prudence [1] - 17:18 QUINN [1] - 2:14 56:2, 56:9, 84:10 referring [1] - 69:7 70:9, 70:19, 90:13,
prudential [2] - 24:12, quite [7] - 29:20, 49:5, reasons [3] - 31:4, refers [1] - 73:22 91:2
43:3 60:11, 73:10, 77:12, 65:22, 99:15 refine [1] - 47:22 reporter's [1] - 83:24
public [35] - 16:25, 90:1, 99:19 receipt [1] - 93:1 reflect [1] - 104:12 reporting [1] - 72:24
27:15, 27:18, 32:11, quote [3] - 89:21, received [5] - 7:17, reflecting [1] - 21:19 reposted [1] - 28:8
32:19, 37:17, 40:9, 90:2, 96:25 9:11, 14:11, 53:1 reflection [1] - 97:14 represent [1] - 76:1
40:17, 41:9, 41:11, quoted [2] - 30:1, 30:2 recent [1] - 98:15 refreshing [1] - 60:23 representation [3] -
43:1, 60:6, 60:9, recently [1] - 7:18 regard [1] - 95:7 52:22, 75:14, 95:15
71:20, 71:24, 72:1, R Recess [1] - 66:4 regarding [4] - 52:22, representations [2] -
73:17, 73:18, 73:22, recess [3] - 3:2, 66:3, 61:1, 63:2, 90:13 60:2, 60:5
74:8, 74:16, 83:6, raise [5] - 25:10, 107:18 related [6] - 29:13, Represented [4] - 2:4,
83:8, 84:15, 84:16, 31:14, 82:23, 83:10, recitation [1] - 14:15 35:20, 64:24, 80:24, 2:21, 3:7, 4:2
85:15, 93:16, 94:6, 97:9 recitations [1] - 11:11 81:24, 99:7 representing [1] -
95:13, 98:10, 98:12, raised [8] - 37:24, recognize [3] - 11:9, Related [1] - 1:6 27:4
99:1, 99:2, 99:3 41:16, 71:11, 74:21, 54:10, 59:22 relates [1] - 35:15 reproduced [3] -
public-figure [1] - 91:12, 97:9, 98:3, recognized [1] - 8:24 relatively [2] - 8:18, 68:21, 68:22, 96:13
83:6 105:23 recollection [6] - 100:16 reproduction [1] -
publication [1] - 90:20 raising [2] - 12:22, 12:12, 13:16, 16:4, relaxation [1] - 100:21 45:4
publicity [1] - 90:14 86:23 16:7, 23:7, 60:23 relayed [1] - 66:20 republishing [2] -
publicly [8] - 10:3, ranking [1] - 8:19 recollections [1] - relevance [1] - 35:6 83:19
14:11, 21:4, 32:7, rapidly [1] - 7:16 23:8 relevant [6] - 21:13, reputations [1] -
32:9, 32:10, 35:22, rare [1] - 90:5 reconvene [3] - 36:20, 26:11, 49:1, 78:7, 91:22
72:22 rather [11] - 13:17, 61:13, 62:11 80:12, 95:10 request [14] - 5:18,
publish [3] - 18:5, 14:2, 52:13, 53:8, record [26] - 7:19, relief [3] - 37:23, 10:1, 13:18, 15:5,
75:25, 102:7 56:10, 56:13, 60:20, 7:24, 9:18, 9:24, 61:20, 84:23 16:6, 17:11, 61:20,
published [1] - 58:5 78:1, 98:17, 99:13, 12:9, 12:14, 12:23, remain [2] - 12:2, 64:8, 67:24, 69:14,
pull [1] - 9:6 107:5 13:5, 13:11, 15:14, 105:4 100:1, 100:3,
purely [1] - 83:4 reach [2] - 56:20, 15:15, 15:20, 23:5, remained [2] - 14:10, 100:24, 106:5
purposes [4] - 37:24, 99:10 23:10, 23:12, 34:12, 81:9 requested [1] - 102:13
80:5, 81:14, 84:23 reached [1] - 93:5 34:24, 44:6, 51:3, remaining [1] - 101:20 requests [3] - 5:12,
pursuant [4] - 7:11, reaches [1] - 90:1 51:6, 78:11, 78:12, remains [1] - 21:13 5:16, 107:12
16:5, 33:4, 92:9 reaching [1] - 53:13 93:2, 96:20 remarkably [1] - 99:19 require [3] - 15:16,
pursue [2] - 10:20, read [13] - 6:10, 26:17, recording [1] - 85:13 remarks [2] - 35:19, 89:6, 103:15
10:21 32:1, 38:22, 68:15, records [3] - 13:12, 39:24 required [2] - 31:5,
pushed [1] - 75:7 83:11, 86:12, 86:15, 15:9, 42:23 remedial [1] - 37:24 56:8
put [23] - 9:21, 10:3, 87:11, 90:25, 96:25, recreate [1] - 68:16 requires [2] - 18:16,
remedies [2] - 81:17
10:12, 10:21, 14:7, 105:12 recreated [1] - 69:5 41:16
remedy [8] - 10:22,
22:18, 22:25, 24:11, readers [3] - 40:20, recur [1] - 89:17 requiring [1] - 56:10
11:7, 36:8, 37:19,
29:20, 32:15, 39:19, 75:21, 84:4 red [1] - 24:5 research [1] - 78:8
81:20, 82:5, 82:18,
39:24, 40:23, 45:9, reading [7] - 6:15, redact [3] - 17:24, resignation [1] - 99:13
91:15
50:2, 50:4, 62:5, 28:1, 28:2, 33:15, 67:23, 72:16 resigned [1] - 99:9
remember [4] - 11:22,
68:15, 68:17, 75:16, 38:24, 39:12, 88:13 redacted [7] - 18:3, resist [1] - 19:18
12:3, 13:18, 42:24
88:9, 94:20, 102:9 reads [2] - 80:15, 50:2, 50:3, 51:10, resolution [2] - 87:25,
reminded [1] - 97:17
putative [1] - 79:3 80:17 85:11, 100:14 88:1
remove [1] - 67:20
Putting [1] - 59:25 real [4] - 38:12, 60:21, redacting [2] - 25:12, resolve [3] - 43:23,
removed [3] - 8:8,
72:1, 105:21 71:16 89:1, 92:2
67:24, 95:16
Q realized [1] - 14:23 redaction [4] - 31:20, Renee [1] - 2:14 resolved [1] - 97:3
really [18] - 5:21, 17:2, 74:7, 85:6, 100:8 resort [1] - 61:10
repeated [1] - 86:13
quality [3] - 51:21, 18:12, 27:17, 30:5, reduced [3] - 58:12, respect [33] - 5:13,
replication [1] - 15:17
96:15, 99:9 31:22, 33:7, 45:18, 88:18, 100:12 9:25, 26:5, 27:16,
report [7] - 66:10,
questioned [2] - 51:15 46:2, 46:12, 49:16, refer [1] - 85:18 33:12, 36:6, 36:8,
66:12, 99:1, 102:24,
15
36:19, 37:1, 37:14, rid [1] - 85:9 69:18, 69:19, 69:20 sensitivity [1] - 59:22 31:4, 42:8, 52:20,
37:23, 55:5, 56:22, right-hand [1] - 57:20 scanning [5] - 58:16, sent [8] - 15:3, 40:11, 74:5, 75:5, 84:9,
59:11, 60:2, 63:4, rights [5] - 24:9, 58:18, 58:22, 59:8, 57:4, 57:5, 68:13, 100:15, 101:12,
70:18, 71:25, 74:7, 80:21, 86:10, 91:6, 69:8 69:12, 69:14, 69:21 103:2
74:19, 75:1, 76:18, 106:11 scattered [1] - 52:5 separate [5] - 16:23, single [1] - 7:12
85:4, 85:9, 85:12, ringing [1] - 40:8 scent [2] - 45:10, 41:17, 74:20, 86:9, site [4] - 28:17, 28:23,
94:2, 97:20, 97:23, risen [1] - 99:20 45:12 88:15 63:20, 63:24
100:14, 100:17, risk [1] - 102:19 schedule [3] - 10:21, September [1] - 78:10 sites [1] - 28:20
100:22, 101:5, RITVO [6] - 6:18, 56:9, 104:5 sequences [1] - 56:9 situations [1] - 83:16
102:18 24:17, 24:19, 25:1, Schoenfeld [1] - 2:9 sequentially [1] - 63:7 Sixth [1] - 91:24
respectfully [3] - 66:2, 101:6 scope [6] - 5:24, series [4] - 61:14, size [3] - 8:18, 59:6,
17:20, 18:16, 72:2 Ritvo [3] - 4:3, 87:6, 10:24, 80:19, 82:14, 89:23, 90:3, 91:5 59:7
respond [6] - 38:22, 101:5 83:18, 85:17 serious [2] - 11:13, skill [1] - 108:7
39:16, 40:6, 63:14, RMR [3] - 1:21, 108:4, scrambled [1] - 52:3 46:24 skip [2] - 20:23, 27:24
100:16, 107:14 108:16 Scribd [1] - 28:4 seriously [2] - 38:2, slippery [4] - 27:17,
responded [1] - 99:19 road [1] - 77:5 SCRIBD [1] - 28:5 55:24 27:22, 79:13, 84:19
respondents [1] - Road [3] - 2:23, 3:11, scrivner [1] - 28:13 served [1] - 40:12 slippery-slope [2] -
79:3 3:17 se [2] - 31:25, 63:2 serves [1] - 107:13 27:17, 84:19
responds [1] - 24:19 Robert [5] - 3:10, 4:5, seal [22] - 7:4, 9:20, service [2] - 97:15, slope [4] - 27:17,
response [6] - 60:21, 8:24, 14:17, 99:24 10:2, 12:2, 14:10, 98:25 27:22, 79:13, 84:19
70:5, 99:21, 100:17, role [3] - 31:17, 63:2, 19:15, 22:25, 40:12, session [3] - 5:2, 66:5, small [1] - 8:18
100:25, 102:15 78:16 40:13, 41:13, 41:19, 93:3 smaller [2] - 59:7,
responsibilities [1] - roll [1] - 5:6 44:6, 58:24, 81:5, set [3] - 55:1, 84:7, 69:2
105:14 ROM [2] - 56:24, 57:7 81:7, 101:7, 101:12, 93:20 smart [1] - 98:22
responsibility [1] - ROSE [2] - 3:2, 3:19 101:15, 105:4, sets [1] - 16:24 sneakiness [1] - 98:25
105:15 roughly [1] - 8:21 106:24 setting [2] - 59:23, sneaky [1] - 98:22
responsible [1] - 81:6 round [1] - 67:25 sealed [1] - 19:7 105:20 Social [2] - 18:1, 50:1
restate [1] - 64:22 RUDNICK [1] - 4:3 searched [1] - 8:5 several [2] - 21:15, solely [1] - 75:2
restrain [4] - 5:16, rule [3] - 61:19, 88:25, seated [2] - 5:3, 66:6 45:20 solved [1] - 66:13
5:19, 81:16, 92:20 97:5 second [15] - 11:6, Shafroth [1] - 3:8 someone [20] - 8:25,
restraining [2] - rules [1] - 97:3 41:3, 42:16, 44:14, Shame [1] - 71:18 9:3, 9:10, 10:23,
64:24, 93:4 Rules [1] - 7:11 45:22, 53:3, 61:24, shame [6] - 23:21, 19:22, 45:9, 49:10,
restraint [22] - 5:12, ruling [4] - 87:24, 67:25, 68:10, 71:21, 31:3, 36:17, 73:24, 72:4, 74:8, 75:2,
76:11, 81:14, 81:18, 97:6, 101:18, 106:3 73:20, 76:14, 77:22, 94:12, 95:18 85:18, 86:23, 90:25,
83:9, 84:24, 85:17, run [1] - 38:19 78:18, 82:23 shape [1] - 80:2 91:9, 91:11, 94:21,
89:11, 89:14, 89:20, rushed [1] - 42:20 secret [3] - 88:7, shared [1] - 89:12 95:3, 95:12, 97:20,
92:1, 92:16, 96:2, rushing [1] - 75:25 91:10, 91:20 shoe [1] - 96:7 98:19
96:23, 97:21, 97:23, secrets [1] - 83:3 short [5] - 16:1, 19:4, someplace [1] - 10:10
98:1, 98:9, 99:4, section [1] - 88:5 somewhat [6] - 11:11,
99:10, 102:6, 102:14
S 25:9, 60:25, 98:6
sections [1] - 18:19 shortly [3] - 77:2, 31:8, 40:22, 80:22,
restraints [3] - 37:20, salacious [1] - 96:15 Security [2] - 18:2, 77:3, 103:13 84:7, 88:15
91:15, 91:16 salient [3] - 26:21, 50:1 Shortly [1] - 36:3 somewhere [3] - 9:17,
restrict [1] - 99:4 95:1, 96:1 see [17] - 10:11, 22:10, shout [2] - 54:11, 55:8 47:8, 47:9
result [5] - 55:14, salutary [1] - 93:21 22:20, 29:7, 35:17, showings [1] - 41:12 soon [1] - 18:2
55:16, 81:12, 81:13, sample [2] - 8:17, 49:5 38:18, 45:24, 47:9, shown [2] - 58:12, sooner [1] - 107:13
89:4 samples [1] - 48:2 62:24, 65:25, 69:17, 98:7 sorry [15] - 10:6,
resulted [1] - 40:13 San [2] - 3:9, 65:3 79:6, 80:16, 80:17, shut [1] - 76:13 17:13, 27:8, 43:17,
retire [1] - 62:2 sanction [1] - 10:25 86:13, 97:11, 106:14 Shuttlesworth [1] - 45:11, 57:1, 57:13,
retraining [1] - 79:5 Santa [1] - 65:3 seek [4] - 47:15, 105:13 57:18, 70:7, 71:23,
return [1] - 56:15 sat [1] - 52:9 102:9, 103:6, 106:3 side [10] - 8:1, 8:15, 72:8, 75:7, 77:12,
returned [1] - 58:12 sauce [1] - 55:2 seeking [1] - 32:21 10:12, 10:22, 44:8, 101:23, 103:4
retype [1] - 68:16 save [2] - 65:25, 106:8 seeks [2] - 56:10, 48:3, 50:6, 59:25, sort [13] - 18:22,
reveals [2] - 9:9, 9:10 SAVERIN [1] - 1:6 100:12 90:10, 91:4 20:12, 25:3, 25:4,
reverse [1] - 84:14 Saverin [1] - 3:6 seem [2] - 60:1, 93:12 sign [1] - 48:18 42:8, 44:7, 47:21,
review [6] - 12:12, saw [3] - 12:19, 28:7, selection [1] - 86:3 signed [1] - 48:19 48:9, 52:5, 74:25,
37:17, 90:22, 93:8, 68:18 sense [5] - 29:14, significance [1] - 9:13 80:10, 92:21, 96:11
102:25, 104:6 Saxon [1] - 91:14 37:16, 90:21, 90:24, signing [1] - 87:2 sought [4] - 14:6,
revisit [1] - 46:22 scan [1] - 59:5 94:1 similar [4] - 31:8, 22:24, 40:12, 94:14
rhetoricians [1] - scanned [7] - 58:2, sensitive [4] - 26:14, 52:17, 64:25, 84:8 sounding [1] - 102:19
78:15 59:1, 68:14, 69:12, 34:4, 46:22, 47:16 simply [10] - 18:23, source [36] - 14:14,
16
14:15, 36:7, 37:10, stenographer's [1] - 101:11, 101:14 tapped [2] - 63:6, 63:7 35:17, 35:24, 36:3,
37:11, 38:12, 39:13, 100:11 substantially [3] - tasks [1] - 61:13 36:6, 36:24, 37:3,
42:19, 45:12, 47:17, stenotype [1] - 108:8 32:14, 35:22, 88:18 taste [1] - 55:3 37:6, 38:21, 39:4,
54:19, 54:20, 55:10, step [7] - 30:6, 34:19, substantive [2] - 89:4, tat [1] - 55:19 39:11, 39:22, 40:5,
60:3, 60:4, 61:1, 42:13, 46:6, 60:15, 91:25 tech [1] - 71:25 41:2, 41:14, 42:3,
62:3, 62:10, 62:12, 61:5 success [3] - 92:17, tee [1] - 82:7 42:12, 43:1, 43:8,
62:22, 63:5, 80:11, Step [1] - 46:7 92:18, 93:10 telephone [11] - 2:8, 43:13, 43:16, 43:21,
80:12, 83:19, 84:2, Stephen [1] - 85:22 Success [1] - 92:18 2:9, 2:9, 2:13, 2:13, 44:13, 44:20, 44:24,
84:14, 84:15, 86:5, steps [1] - 38:10 successful [2] - 2:14, 3:2, 3:8, 3:10, 45:4, 45:9, 45:12,
90:22, 90:25, 93:17, Steven [2] - 3:1, 3:19 41:22, 92:19 4:5, 75:6 45:15, 45:18, 45:24,
95:22, 104:13 sticker [1] - 45:22 suffer [1] - 41:23 temporary [2] - 79:5, 46:2, 46:13, 46:25,
sources [3] - 10:13, still [7] - 7:16, 14:12, sufficient [2] - 94:24, 93:4 47:5, 47:11, 47:19,
29:15, 61:3 21:13, 23:2, 38:18, 100:17 temptation [1] - 19:19 48:8, 48:15, 48:17,
speaking [5] - 43:18, 44:6, 59:11 sufficiently [1] - 84:22 tend [1] - 94:17 48:21, 48:23, 49:1,
54:8, 59:19, 68:5, stock [2] - 32:3, 32:4 suffusing [1] - 85:24 tendered [1] - 93:1 49:3, 49:8, 49:20,
82:1 stop [5] - 5:21, 17:3, suggest [7] - 33:15, tends [1] - 80:22 50:13, 50:19, 50:21,
special [2] - 43:5, 17:4, 70:15, 102:22 42:6, 52:13, 52:21, Termaine [1] - 67:12 50:24, 51:4, 51:12,
92:15 story [4] - 28:14, 63:4, 100:13, 103:5 51:22, 51:25, 52:12,
terms [5] - 18:8,
specific [8] - 5:17, 72:25, 73:17, 74:16 suggested [2] - 40:11, 53:2, 53:11, 53:15,
56:11, 74:23, 91:21
10:1, 17:6, 17:8, stranger [1] - 74:25 63:8 53:22, 54:5, 54:10,
test [1] - 47:17
18:12, 31:16, 61:20, suggesting [4] - 54:14, 54:25, 55:7,
strangers [3] - 36:14, tested [1] - 106:9
74:6 10:14, 41:25, 42:1, 56:18, 57:1, 57:3,
87:2, 92:11 testify [1] - 95:25
specifically [6] - 17:5, 53:13 57:21, 58:6, 58:11,
streamline [1] - 77:1 testimony [5] - 25:19,
23:11, 24:8, 65:16, suggestion [4] - 13:6, 58:15, 58:20, 59:3,
Street [3] - 2:6, 3:9, 86:11, 86:12, 86:15,
97:8, 106:15 23:19, 55:10, 62:1 59:9, 59:15, 59:21,
106:23 94:13
spell [2] - 67:9, 102:21 59:25, 60:8, 60:11,
strongly [1] - 98:17 suggestions [2] - THE [296] - 1:11, 5:5,
spirited [1] - 97:25 60:19, 61:12, 61:25,
student [2] - 74:4 30:19, 55:19 6:5, 6:14, 6:20, 7:5,
splattered [1] - 31:18 62:8, 62:17, 63:12,
stylized [1] - 81:19 suggests [5] - 10:8, 8:3, 8:13, 8:22, 8:25,
spoken [1] - 71:18 63:21, 63:24, 64:9,
subject [21] - 5:18, 28:2, 38:24, 96:16, 9:19, 10:11, 10:18,
spring [1] - 36:1 64:13, 64:16, 64:19,
7:6, 31:7, 35:10, 98:17 11:3, 11:16, 11:25,
St [1] - 3:14 65:6, 65:13, 65:18,
35:13, 37:14, 37:25, suitors [1] - 33:10 12:7, 12:16, 13:6,
staff [2] - 67:23, 68:16 65:24, 66:3, 66:5,
41:9, 77:11, 81:17, summary [3] - 11:20, 13:13, 13:20, 14:13,
stage [2] - 31:12, 82:6 66:7, 66:9, 66:15,
87:16, 93:14, 95:17, 82:11, 82:14 14:19, 14:24, 15:11,
66:23, 67:2, 67:9,
stamp [4] - 13:23, 95:24, 96:22, 98:20, Superior [2] - 65:2, 16:1, 16:4, 16:9,
67:13, 68:1, 68:4,
20:14, 44:11, 45:1 98:21, 99:17, 100:7, 65:3 16:18, 16:21, 17:5,
68:7, 68:9, 68:20,
stamped [1] - 45:3 103:11, 105:7 support [1] - 7:22 17:12, 17:15, 17:17,
68:25, 69:6, 69:11,
stand [3] - 16:14, submission [8] - 6:6, supporting [1] - 88:14 18:9, 18:12, 18:18,
69:17, 69:19, 69:22,
19:24, 107:17 6:11, 10:12, 14:13, suppose [5] - 11:12, 19:2, 19:5, 19:9,
70:4, 70:8, 70:12,
standard [1] - 84:21 15:18, 26:16, 28:2, 84:17, 87:13, 100:1, 19:16, 19:18, 19:22,
70:15, 70:18, 70:23,
standards [3] - 8:18, 59:12 105:12 20:2, 20:9, 20:11,
71:5, 71:8, 71:17,
92:5, 92:14 submissions [3] - supposed [2] - 38:6, 20:15, 20:21, 20:25,
71:21, 72:3, 72:7,
stands [1] - 59:11 88:8, 94:15, 100:15 82:3 21:8, 21:11, 21:16,
72:9, 72:11, 72:14,
start [7] - 6:9, 19:9, submit [5] - 7:20, Supreme [3] - 64:21, 21:21, 21:24, 22:3,
72:17, 73:1, 73:5,
27:18, 32:20, 38:14, 53:4, 53:6, 70:3, 83:1, 89:13 22:8, 22:10, 22:19,
73:8, 73:13, 73:20,
38:15, 80:23 102:5 surely [1] - 31:14 23:1, 23:6, 23:13,
73:22, 74:18, 75:10,
start-up [1] - 32:20 submitted [24] - 6:3, surprised [1] - 40:19 23:16, 23:25, 24:2,
75:16, 76:2, 76:8,
started [1] - 97:5 7:3, 7:25, 8:14, 9:20, suspect [2] - 29:19, 24:7, 24:14, 24:18,
76:10, 76:15, 76:22,
state [1] - 96:20 9:25, 11:18, 12:1, 32:13 24:21, 24:25, 25:2,
77:7, 77:14, 77:18,
statement [19] - 6:12, 14:6, 19:10, 20:7, suspected [1] - 69:2 25:6, 25:15, 25:24,
77:21, 78:2, 78:24,
7:15, 10:10, 12:13, 21:25, 22:21, 23:18, SUTCLIFFE [2] - 2:23, 26:3, 26:7, 26:15,
79:11, 79:17, 79:20,
21:2, 23:4, 23:10, 26:19, 28:14, 44:12, 3:16 27:2, 27:6, 27:11,
80:2, 81:3, 81:9,
26:19, 29:16, 32:16, 44:14, 44:25, 50:5, system [1] - 105:3 27:24, 28:12, 28:21,
82:4, 82:25, 83:21,
33:18, 36:4, 37:1, 50:24, 51:14, 104:7 28:25, 29:9, 29:14,
84:17, 85:18, 86:3,
46:18, 72:19, 79:16, submitting [3] - 40:15, 30:5, 30:16, 30:21,
T 30:25, 31:12, 31:16,
86:18, 86:22, 87:23,
88:6, 95:7, 96:3 52:13, 52:15 88:12, 88:20, 88:25,
STATES [1] - 1:1 subscribed [1] - 71:1 tab [1] - 68:21 32:6, 32:9, 32:22,
92:13, 96:20, 97:1,
states [1] - 6:22 subscriber [1] - 74:4 tag [1] - 91:5 32:25, 33:6, 33:13,
100:9, 101:8,
States [5] - 1:16, 1:22, subsequent [1] - talks [5] - 6:3, 32:1, 33:20, 33:24, 34:10,
101:10, 101:19,
6:25, 83:1, 108:5 91:15 32:2, 32:3, 65:16 34:13, 34:17, 34:19,
101:22, 101:24,
Steno [1] - 1:24 substance [3] - 19:14, tap [2] - 91:19, 93:2 35:2, 35:4, 35:6,
102:11, 103:8,
17
103:19, 104:3, tolerable [1] - 90:9 tutor [1] - 20:10 United [5] - 1:16, 1:22, view [25] - 5:22, 10:21,
104:18, 105:5, took [2] - 22:5, 24:5 two [34] - 7:13, 11:3, 6:25, 83:1, 108:5 24:9, 36:10, 38:11,
106:4, 106:8, top [3] - 54:9, 57:8, 12:8, 16:23, 21:9, universe [4] - 11:20, 40:11, 41:9, 53:15,
106:17, 106:21, 68:22 25:14, 32:17, 36:8, 16:9, 37:21, 38:17 53:24, 55:21, 60:25,
107:2, 107:10, topic [1] - 90:13 38:14, 43:16, 43:21, unless [3] - 21:3, 73:9, 77:4, 79:4,
107:17 toward [5] - 10:21, 44:17, 45:1, 46:7, 81:15, 101:10 80:3, 83:24, 87:25,
Thefacebook [6] - 36:10, 38:11, 80:3, 50:10, 51:4, 51:5, unlikely [1] - 36:25 90:19, 93:7, 93:20,
2:19, 12:12, 12:23, 93:7 51:13, 52:6, 56:19, unnecessary [1] - 100:18, 101:1,
54:21, 56:13, 93:11 towards [1] - 54:13 64:5, 64:8, 65:10, 77:5 102:25, 105:7,
THEFACEBOOK [1] - tracks [1] - 53:7 65:19, 66:13, 66:21, unruly [1] - 93:23 105:19
1:8 trade [4] - 80:5, 83:3, 67:7, 70:6, 80:24, unseal [2] - 100:3, viewed [3] - 35:22,
themselves [8] - 5:8, 84:8, 88:7 83:13, 100:9, 103:18 100:6 94:19, 95:2
15:9, 39:13, 41:23, traded [1] - 21:4 type [5] - 20:4, 83:9, unsealing [1] - 100:15 views [5] - 5:13, 43:2,
60:24, 88:19, 93:12, tradition [1] - 91:14 84:12, 85:16, 91:9 unsuccessful [1] - 47:20, 95:23, 96:11
94:13 traditional [1] - 92:5 typed [1] - 68:18 93:7 vigilant [1] - 40:16
theory [1] - 89:22 traditions [1] - 90:23 untidy [1] - 98:21 violated [2] - 11:17,
thereabouts [1] - 15:7 traffic [1] - 31:18 U up [37] - 8:2, 9:7, 12:4, 37:25
they've [6] - 10:9, transcript [8] - 25:20, 16:10, 20:6, 23:19, violation [4] - 11:1,
42:23, 47:16, 48:9, 31:9, 71:12, 100:11, U.S.C [1] - 87:10 24:3, 31:3, 32:20, 43:4, 55:13, 92:10
79:25, 102:3 100:12, 100:14, ultimate [2] - 30:11, 36:17, 37:17, 39:24, violative [1] - 93:20
thinking [4] - 33:2, 108:6 90:5 47:23, 50:2, 50:4, vis [2] - 77:25
60:23, 63:1, 87:3 Transcript [1] - 1:24 ultimately [2] - 74:14, 52:10, 54:7, 65:24, vis-a-vis [1] - 77:25
third [11] - 23:19, transcription [1] - 90:1 66:16, 66:17, 66:19, visitors [1] - 75:21
23:20, 24:15, 26:8, 108:8 un-ringing [1] - 40:8 67:21, 68:17, 72:25, voluminous [1] -
26:9, 36:13, 64:23, transparency [4] - unacceptable [1] - 73:23, 76:14, 78:1, 20:24
85:7, 89:18, 94:11 84:3, 94:8, 98:14, 99:3 82:8, 83:24, 84:10, voluntarily [1] - 36:10
thoughtful [2] - 90:1, 100:2 unambiguous [1] - 91:24, 94:12, 95:18, voluntary [3] - 24:15,
102:25 treat [2] - 93:6, 93:22 89:23 99:17, 106:11, 95:23, 102:18
thoughts [4] - 21:20, treatment [2] - 82:16, under [41] - 7:4, 7:20, 106:23, 107:13
85:13, 88:22, 91:10 90:1 8:18, 9:20, 10:2, updated [1] - 32:14 W
three [14] - 7:4, 10:7, Tremaine [1] - 14:18 12:2, 14:10, 22:25, upper [1] - 57:20
12:8, 15:6, 47:8, TREMAINE [1] - 4:7 24:4, 24:10, 26:19, upshot [1] - 90:2 wait [1] - 76:12
49:21, 50:17, 51:7, 40:12, 40:13, 41:13, urge [2] - 74:22, waiver [1] - 84:19
trial [1] - 42:14
51:9, 63:25, 64:1, 41:19, 44:6, 58:24, 102:22 walking [1] - 27:22
tried [3] - 14:25,
64:11, 65:4, 65:20 60:24, 71:1, 77:8, urgent [1] - 17:2 Wall [1] - 106:23
77:20, 105:6
throughout [1] - 77:20 78:13, 81:5, 81:7, URQUHART [1] - 2:14 Walsh [8] - 19:13,
troubles [1] - 43:15
throw [3] - 13:21, 81:19, 82:15, 86:14, useful [2] - 63:18, 19:19, 19:21, 20:3,
true [8] - 9:22, 11:2,
45:10, 45:12 87:4, 87:14, 88:17, 75:21 20:5, 20:7, 20:9,
14:4, 46:19, 54:25,
thrust [2] - 62:17, 95:7, 95:20, 98:7, 26:17
59:2, 97:6, 108:7
98:14 101:7, 101:11,
truly [1] - 72:21
101:14, 105:3,
V Walter [1] - 97:18
Thucydides [1] - try [13] - 5:20, 11:13, wants [2] - 62:4, 80:17
97:19 105:4, 106:24 validity [1] - 38:5 Washington [1] - 2:11
18:9, 18:14, 19:16,
tidied [1] - 99:17 under-seal [1] - valuation [4] - 32:19, waters [1] - 106:10
48:4, 52:4, 55:1,
Tighe [6] - 2:5, 52:2, 106:24 35:10, 35:13, 35:15 web [16] - 11:21, 12:4,
64:3, 78:17, 80:18,
60:16, 60:18, 60:19, undergraduate [1] - value [2] - 73:16, 97:1 16:10, 16:12, 28:3,
102:9, 105:15
76:22 16:19 various [6] - 7:24, 28:15, 29:25, 30:3,
trying [11] - 5:21,
TIGHE [8] - 2:6, 52:1, underlying [7] - 38:5, 14:8, 32:4, 78:11, 36:12, 80:8, 80:13,
19:20, 29:11, 29:22,
52:24, 53:3, 53:12, 80:16, 80:17, 80:20, 102:16, 102:17 86:4, 102:8, 102:10,
30:5, 40:16, 43:22,
54:2, 60:18, 76:23 84:2, 85:20, 92:11 vein [1] - 97:21 102:24, 103:2
54:8, 62:19, 99:9,
timely [1] - 80:9 understood [1] - venture [1] - 33:2 website [9] - 8:7, 28:7,
101:24
tit [1] - 55:19 82:12 Version [1] - 51:8 29:6, 50:4, 51:8,
Tuesday [3] - 70:21,
titillation [1] - 85:1 undertaken [1] - 11:9 version [7] - 8:6, 50:2, 65:12, 67:20, 75:22,
70:24, 71:5
today [14] - 14:10, undertaking [1] - 55:2 50:3, 51:8, 57:19, 80:1
turn [10] - 26:15,
19:24, 27:4, 28:9, undertook [1] - 93:15 58:5, 69:4 websites [1] - 99:10
59:10, 62:12, 69:19,
34:6, 39:24, 40:1, unfairly [1] - 36:15 versions [1] - 50:18 weigh [1] - 98:13
73:3, 92:5, 92:13,
48:2, 72:22, 77:2, unfiltered [2] - 80:14, vetted [2] - 70:25, Weinstein [1] - 98:16
95:9, 96:3, 96:10
78:7, 89:7, 94:17, 80:15 103:7 well-known [2] -
turning [3] - 11:7,
99:25 unfortunately [1] - via [10] - 2:8, 2:9, 2:9, 71:19, 71:24
23:13, 71:21
together [3] - 40:23, 73:13 2:13, 2:13, 2:14, 3:2, well-recognized [1] -
Turning [1] - 97:8
62:5, 88:10 UNITED [1] - 1:1 3:8, 3:10, 4:5 8:24
turns [1] - 44:9
18
West [2] - 8:25, 65:2 1:6

wheeled [1] - 15:6 Zuckerberg [28] -
White [1] - 17:25 2:19, 7:14, 7:23, 9:5,
whole [3] - 8:17, 11:24, 16:15, 16:19,
85:19, 90:3 19:13, 20:6, 20:17,
willful [1] - 97:24 21:18, 21:24, 27:3,
willfulness [3] - 87:19, 27:13, 29:7, 44:22,
97:15, 97:16 51:10, 71:13, 73:12,
willing [3] - 46:10, 73:18, 74:1, 74:16,
70:2, 80:25 74:20, 95:3, 95:22,
Winklevoss [2] - 96:17, 96:19
46:17, 52:23 Zuckerberg's [11] -
Winklevosses [1] - 17:23, 20:4, 22:4,
52:6 22:6, 26:16, 27:9,
wire [1] - 91:19 29:1, 49:23, 75:1,
wish [2] - 76:16, 91:13 85:23, 95:6
witness [1] - 69:24 ZYPREXA [6] - 6:2,
witnesses [1] - 53:17 64:21, 83:12, 83:13,
Wolfson [1] - 2:13 86:8, 98:14
woman [3] - 72:6,
74:8, 97:11 §
woman's [1] - 97:23
§ [1] - 87:10
Woodlock [1] - 5:5
WOODLOCK [1] -
1:11
Word [4] - 9:12, 68:17,
68:19, 69:2
words [1] - 62:4
works [1] - 102:13
world [1] - 5:20
worry [1] - 91:10
worthwhile [1] - 74:2
Wright [2] - 14:18,
67:12
WRIGHT [1] - 4:7
write [1] - 20:6
writing [2] - 48:14,
52:8
Writs [2] - 87:9, 92:9
written [6] - 5:20,
30:1, 48:9, 65:15,
83:5, 83:16
Y
year [2] - 7:15, 42:25
years [5] - 16:20, 21:9,
21:12, 21:15, 32:17
yesterday [1] - 40:14
York [4] - 2:11, 2:16,
4:8, 89:15
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ZUCKERBERG [1] -

Lawsuit Filed Against &quot;Facebook&quot;

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Lawsuit Filed Against &quot;Facebook&quot;

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1

1 UNITED STATES DISTRICT COURT

11 BEFORE: THE HONORABLE DOUGLAS P. WOODLOCK

16 John Joseph Moakley United States Courthouse

13 Peter E. Calamari, Esq. (Appearance via telephone)

25 (Appearances Continued next page)

8 Nathan E Shafroth, Esq. (Appearance via telephone)

16 I. Neel Chatterjee, Esq.

3 Elizabeth Ritvo, Esq.

2 CLERK LOVETT: The Honorable Court is now in session.

3 You may be seated. Calling the case of Civil Action 07-10593

4 Civil Action 04-11923 ConnectU, Inc. v. Facebook, Inc., et al.

5 THE COURT: Well, this is Judge Woodlock. I have a

7 proceedings, I think Mr. Lovett indicated to counsel who were

8 appearing by phone that they should identify themselves each

10 the names properly. I guess, Mr. Chatterjee, I'd like to hear

12 requests for a prior restraint, and I want to hear what your

13 views are with respect to that at the outset.

14 MR. CHATTERJEE: I'm happy to do so, your Honor, and

15 thank you for giving us this hearing on an expedited basis.

16 The requests that we are placing to the Court is to restrain

17 specific documents that have been posted online that are

18 subject to the Court's protective order. This is not a request

19 to restrain the commentary and the articles that have been

20 written about them. In a perfect world, we want to try and

21 stop that commentary, but we are really trying to protect our

22 confidential information that has gotten out. In our view, the

23 law is fairly clear, the Bartnicki case, I can never pronounce

24 it right, in drawing a distinction as to the scope of First

25 Amendment protection between what is commentary and what are

2 ZYPREXA case, that was actually cited to in papers that were

3 just submitted to you by the magazine, actually talks about

4 that very distinction.

6 magazine submission as yet; it just hasn't been brought to my

8 MR. CHATTERJEE: Okay, your Honor, I'm happy to

10 fact that I think is important, and I'll just read to you an

11 excerpt from their submission that I think their argument

13 4 of their brief. All of the --

14 THE COURT: Just a moment. I'm glad to listen to a

15 dramatic reading, but I think I'd like to follow along. Is

16 there a copy of the document here?

17 MR. CHATTERJEE: Yes, your Honor, I believe.

18 MS. RITVO: Excuse me. This was hand-delivered to the

19 Court on behalf of the magazine.

20 THE COURT: Okay. Go ahead. I now have it.

21 MR. CHATTERJEE: Your Honor, if you look at page 4,

22 the first complete paragraph, it states, "All of the documents

23 were lawfully obtained by Luke O'Brien, a freelance journalist

24 and the author of the article in question from the clerk's

25 office of the United States Court of Appeals for the First

2 Your Honor, this is one of approximately 11 exhibits

3 that were submitted to the First Circuit Court of Appeals,

4 three of which are under seal. Each one --

5 THE COURT: Let me just pause for a moment. Are all

6 of the documents that are the subject of internet posting from

7 the Court of Appeals appeal?

8 MR. CHATTERJEE: No, your Honor, and that was exactly

9 the point I was going to make. Each one of the documents in

10 the appendix to the First Circuit Court of Appeals has a number

11 at the very bottom pursuant to the First Circuit Rules. Not a

12 single one of the documents that's posted online has that

13 number on it. In addition, two of the documents which are

15 flow statement of Facebook from about a year and a few months

16 ago are, as far as we know, and we're still, we're rapidly

Lawsuit Filed Against "Facebook"

Lawsuit Filed Against "Facebook"