Important new facts have emerged from
Leader v. Facebook
Origin of Facebook'sOrigin of Facebook'stechnology?technology?
© WBNSThe fight goes on.Click to read Leader's Federal Circuit Opening Brief. The trial resulted in a
splitverdict
. Leader won on "literal infringement" of 11 of 11 claims and no prior art. Facebook won on atechnicality called on sale bar that "invalidates" the patent for this trial only if not overturned. Leader saysFacebook confused the jury with attorney "trial theater" instead of "clear and convincing" evidence.
WBNS-10TV (CBS) Columbus, Ohio Aug. 29, 2011 –
Leader v. Facebook
7. Missing Facebook Documents
Opinion: One blogger's perspective of the public record.
Six months of discovery delays
Facebook dragged its feet on discovery throughout the first six months of 2009. Forexample, Facebook would say they would not provide a document, but when Leaderfiled a motion to compel the document, Facebook would then provide the document intheir opposition to the motion—the very document that they had just said they wouldnot provide. Leader had provided two-and-a-half times more documents to Facebookthan Facebook provided to Leader.Judge's Conference, May 28, 2009, Tr. 1062:12-24.
"I don’t want Facebook to be trashed . . . I love my company"
Facebook counsel Heidi Keefe's argument for giving Leader limited access toFacebook's documents was "I don’t want Facebook to be trashed." Judge Farnanreplied "Don't be so defensive," to which Ms. Keefe responded "I love my company."
Id
., Tr. 1063:18-23.Ms. Keefe's affection for her client aside, Facebook's discovery document preparationwas further clouded by the appearance of a new
inside
counsel at Facebook who wassimultaneously working for Facebook's
outside
counsel—a move that coincides withFacebook's inability to produce documents from its formative years of 2004 and 2005.California Legal Ethics, Cornell Univ. Law("zealousness requires an attorney torepresent his client to the best of his ability, but it does not require that he becomeinsurer of either his client's self-esteem or his public reputation").
Dates
Attorney
Samuel Citron O'Rourke
is currently Deputy General Counsel, IntellectualProperty at Facebook.
See
Sam O'Rourke LinkedIn Profile. Prior to joining Facebook
Scroll down
below CBS-TV newsvideo to read posts
Leader Technologies,Leader Technologies,Inc. v. Facebook, Inc.Inc. v. Facebook, Inc.
,,08-cv-862 (D.Del. 2008)08-cv-862 (D.Del. 2008)
Click here for SUMMARY"Bottom Line: AmericanInnovation is on the line"1. Mark Zuckerberg usedLeader white paper tobuild Facebook2. Jury transformsdisbelief into evidence3. No evidence? Noproblem. Fabricate it.4. Facebook’s' trialconduct5. Facebook's "courtroom theater"6. Facebook's "I'm tired"tactic7. Missing FacebookDocuments8. Expert witnesspractices "dark arts"9. Patent Office recordsdisprove Facebook
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Mr. O'Rourke was a colleague of Facebook's
Leader v. Facebook
outside counselsHeidi KeefeandMark Weinsteinat the law firm ofWhite & Case LLP. AttorneyTed
Ullyotjoined Facebook during this case.Mr. O'Rourke’s current LinkedIn profile page states that he joined Facebook in May2008.
Id
.,
May 2008
. However, court records in
HTC Corp et al v. TPL et al
, 08-cv-00882-JF (CA ND
Feb. 27, 2009
)show that he did not leave White & Case LLP until atleast February 27, 2009 where he had been co-counsel with Mark R. Weinstein untilbeing withdrawn by Mr. Weinstein—nine months later. To add to the confusion, Mr.O'Rourke was also co-counsel with Heidi Keefe and Mark Weinstein in the firm ofCooley LLP in
Cross Atlantic Capital, Inc. v. Facebook, Inc
., 07-CV-02768-JP (CA ND
Jan. 19, 2011
)and remained so until being withdrawn by Ms. Keefe on January 19,2011. To insure that these records were not simply untimely clerk filings, the courtpleadings in
Acer, Inc. et al v. TPL, et al
, 08-cv-877-JF (CA ND
Oct. 21, 2008
)showthat Mr. O'Rourke was indeed an active counsel of record at White & Case LLP alongwith Mark Weinstein late into 2008.
Engagements
On the surface Mr. O'Rourke's LinkedIn page would lead one to believe that his tenureas inside counsel at Facebook pre-dated the
Leader v. Facebook
lawsuit, whichcommenced on
Nov. 19. 2008
. However, numerous federal court records indicate thathe did not join Facebook until sometime in early 2009—timing which coincides with the
Leader v. Facebook
discovery disputes and would place him in the center of theobfuscation that triggered Leader's motion to compel.The ambiguous nature of Mr. O'Rourke's status creates equally ambiguous legalquestions as to whether or not attorney-client privilege would apply to Mr. O'Rourke'sinsider activities during
Leader v. Facebook
discovery. Heidi Keefe did not withdrawMr. O'Rourke from the
Cross Atlantic Capital v. Facebook
case until Jan. 19, 2011.
See
link above. Technically speaking, since Mr. O'Rourke was still Facebook counselfor White & Case LLP (later replaced by Cooley LLP) in
Cross Atlantic
, Ms. Keefecould make an argument that Mr. O'Rourke's actions during
Leader v. Facebook
discovery were attorney-client privileged, and therefore not subject to discovery,deposition or subpoena, even though he claimed to be a Facebook insidersimultaneously.
Musical Chairs
On Sep. 4, 2009, almost a year into the
Leader v. Facebook
lawsuit, Heidi Keefe andMark Weinstein changed firms toCooley Godward LLPand brought the
Leader v.Facebook
, 08-cv-082-JJF/LPS (D.Del.
Sep. 4, 2009
)lawsuit with them.
See
alsoCooley Press Release,
Aug. 31, 2009
. AttorneyMichael Rhodeswho was already atCooley, later became the trial litigator in
Leader v. Facebook
.
See
Law.com
,
Dec. 01,2009
. On the subject of Facebook user security and privacy, it is Mr. Rhodes whostated to the jury in his closing argument:
"There's 500 million of you people out there. We can't control it.All we can do is react after the fact
."Michael Rhodes, Facebook,Trial Transcript, Jul. 27, 2010, Tr. 11479:7-9.
Who worked for whom, and when?
The public record is silent on exactly when Mr. O’Rourke joined Facebook as insidecounsel. Facebook issued no customary press release for his hiring. Instead, he justappeared. The record is also unclear as to exactly who he worked for. Court recordsindicate that he worked for his former bosses Heidi Keefe and Mark Weinstein evenafter he went inside at Facebook and was ostensibly managing them.Insider? Outsider? Insider-Outsider?
More Questions than Answers
These facts raise more questions than answers. Why didn’t Facebook announce Mr.O'Rourke's hiring in a manner similar to other Facebook hiring announcements likeChief Legal Counsel, Ted Ullyot's?
See
Cnet
, Sep. 29, 2008;
LA Times
, Sep. 29,2008.Once inside, and presumably with the keys to the document vault, what did Mr.O'Rourke do to facilitate the discovery of documents for the 2004 and 2005 Facebookformative years? What happened that eventually led Facebook to claim that they hadno 2004/2005 documents? What was Mr. O'Rourke's role in collecting and processingthese documents? Why was his arrival at Facebook unannounced for many months?
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Newer PostHome
Subscribe to:Post Comments (Atom)Posted by Patent Blogger 4 at8:10 AM Why is his early history at Facebook unknown? To whom did he report? Who knewabout his early activity? What part did he play in the discovery delays? Since it is notreasonable that no 2004/2005 documents were available, were they destroyed? Whydoes he say on his LinkedIn profile that he joined Facebook in May 2008 whenit appears that he actually joined sometime after February 2009? Is the LinkedIn date atypo? What did Facebook do with its 2004 and 2005 documents to prevent spoilation?
See
Footnotes [1][2]. Since there were multiple lawsuits against Facebook prior to
Leader v. Facebook
, weren't all Facebook documents locked down long ago? Whatprompted his former boss Heidi Keefe's "I love my company" emotional outburst infront of Judge Farnan during the discovery hearing?Perhaps there are good answers to these questions, but the questions keep piling up.* * *
Footnotes
[1] Bruzzano, Melissa A,. "Spoilation of Evidence in California," 24 Sw. U. L. Rev. 123(1994-1995). Accessed Aug. 13, 2011 <http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/swulr24&div=10&id=&page=>.[2] Richard E. Best. "Discovery of Electronic Data. Electronic Discovery Law. 2004.Accessed Aug. 14, 2011 <http://california-discovery-law.com/electronic_discovery_sanctions_spoliation.htm>.
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SUMMARY - Leader v. Facebook trial analysis--American Innovation is on the line1. Mark Zuckerberg used Leader white paper to build Facebook2. Jury transforms disbelief into evidence3. No evidence? No problem. Fabricate it.4. Facebook's trial conduct
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Leader v. Facebook - Missing Documents
This blog analyzes Leader's discovery dispute with Facebook over obtaining its documents, especially documents from Facebook's formative 2004-2005 time period. One interesting exchange occurred between Judge Farnan and Facebook's attorney Heidi Keefe who made the unusual…
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